text:
    JAMES E. BRUCE, Appellant, v. JOHN C. WRIGHT, Respondent.

      Indorser and indorsee—contraet between—intention gathered from what.

    If there be a written or verbal agreement between an indorser and his immediate indorsee, that the indorsee shall not sue the indorser, it is a good defense against the indorsee’s suing in breach of his agreement. The contract between the indorser and indorsee consists partly in the written indorsement, partly in the delivery of the bill to the indorsee, and partly in the actual understanding and intention with which the delivery was made.
    The intention of the parties may be gathered from the words of the parties, either spoken or written; from the usage of the place or of trade; from the course of dealing between the parties, or from their relative situations.

      Benton v. Martin (53 IT. Y., 570); Prentiss v. Graves (88 Barb., 631); Ocean -Bank v. Bill (89 id., 577).
    Appeal from a judgment in favor of defendant, and from an order denying a new trial.

      Cornelius E. Stephens, for the appellant.

      Henry E. Turner, for the respondent.

       This cause was decided at the October Term, but the opinion was not received in time to be published with the decisions of that term.

       Byles on Bills, p. 147.

   Opinion by Mu.llin, P. J.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    AARON ERICKSON and others, Plaintiffs, v. MARY ANN QUINN, AND OTHERS, DEFENDANTS.

      Motion to set aside judgment—granted on ground of its satisfaction by execution sale — execution cannot thereafter be attacked by successful party as void,.

    When a motion is made to set aside a judgment, on the ground that it had heen satisfied hy a sale had under an execution issued thereon, and such motion is granted, the successful party cannot thereafter set up the claim that the execution itself was irregular, and therefore void. The court will not permit a party to thus blow hot and cold, and will take judicial notice of such proceedings to set aside the judgment.
    Exceptions ordered to be heard in first instance at General Term.
    The action was brought for the recovery of possession of certain lands in Rochester, to which the plaintiff made title under a sale had under an execution against one O’Maley. The defendant, Mary A. Quinn, claimed to own the land as grantee and heir at law of O’Maley. The other defendants were her tenants.

      George F. Dcmforth, for the plaintiffs.

      J. G. Cochrane, for the defendants.
   Opinion by Gilbert, J.

Exceptions overruled, and judgment ordered for plaintiffs.


text:
    THE PEOPLE ex rel. GEORGE W. CUYLER and others, v. THE TRUSTEES OF THE VILLAGE OF PALMYRA.

      Tax — cm'tiorarri to remero —■ when prematurely granted.

    The writ of certiorari does not issue to inferior courts, tribunals, or officers exercising judicial functions, till the proceedings before them are completed, and a final determination or adjudication had upon such proceedings.

    Certiorari to review certain proceedings had relative to the levying of a tax by the respondents.

      The court was of opinion that several irregularities had occurred in the proceedings; but, as the respondents had not in fact or form, levied any tax, nor corrected or adopted the assessment roll, or signed .any warrant, it held that the writ was prematurely granted, and dismissed it with costs.

      Ohcmies MoLouth, for the relators.

      George F. Danforth, for the respondents.

       People v. Sup’rs of Livingston, 43 Barb., 237; Lynde v. Noble, 30 Johns., 80.

   Opinion by Smith, J.

Present — Mdllin, P. J., Smith and Dwight, JJ.

Wi-it dismissed, with costs.


text:
    CHARLES MARSH and LYSANDER S. RICHARDS, Appellants, v. JOSHUA TITUS, Respondent.

      Baüment—test of— comersion of money.

      I The test of a bailment is that the identical thing delivered is to be returned. If , the obligation of the receiver be to return another thing of equal value, it is a sale  (Gilbert, J.)
    One whose money is wrongfully converted cannot recover property bought with such money from one who has purchased it in good faith from the party who was guilty of the conversion. (Dwight, J.)
    Appeal from an order denying a new trial.
    The action was in replevin, and was tried at the Yates Circuit, Rovember, 1873. The court directed a verdict for defendant. The plaintiff moved at circuit for a new trial, which was denied. The General Term, applying the above rule to the ease, was of opinion that the conclusion of the court below was correct.

      Oh. G'. Judd, for the appellants.

      William 8. Briggs, for the respondent.

       Foster v. Pettibone, 3 Seld., 433.

   Opinions by Gilbert and Dwight, JJ.

Order affirmed.


author: Gilbert, J.:

text:
    CHRISTOPHER JORDAN, Respondent, v. HARVEY P. LANGWORTHY, Appellant.

      F. A. Maoomber. for the appellant.

      G. Jordan, for the respondent.
   Gilbert, J.:

“ This case presents only a question of fact, and that, we think, was correctly disposed of by the county judge, for the reasons stated in his opinion.”

Judgment affirmed.


text:
    MARIA S. SWIFT, Respondent, v. THE MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Witness — opinion of must be based on known facts.

    Appeal by defendant from a judgment entered upon a verdict for the plaintiff at the Genesee Circuit, and from an order denying a new trial.
    The action was brought by the plaintiff to recover the amount due upon a policy of insurance on her husband’s life. The court rejected the opinion of one physician, based on facts testified to by another. It appeared that the former had treated the assured for a disorder in one of his groins, but did not discover that the disease was scrofula. The latter attended the assured in his last illness, and pronounced scrofula to be the cause of his death. The defendant sought to elicit from the first physician his opinion, based on the fact that the assured died of scrofula, and his own observation of the disease for which he treated him, respecting the character of the subsequent disease, and whether his disease was hereditary and scrofulous at the time he treated it. The court held that opinions of witnesses must be based on known facts, and not mere speculations, and that the rejection of. the evidence was proper. The other objections were held to be conclusively settled by the verdict.

      George Bliss, for the appellant.

      George Bowen, for the respondent.
   Opinion by Gilbert, J.

Judgment and order affirmed, with costs.


text:
    GARDNER B. COTTON, Appellant, v. FREDERICK MAURER, Respondent.

      Action for penalty—not brought within one year—objection must be taken by ammer.

    Appeal from a judgment rendered in the County Court of Erie county, and from an order denying a new trial.
    The action was originally brought in the Justice Court, to recover penalties given by statute for cattle running at large on the highways. The justice rendered a judgment for the defendant, and on appeal to the County Court the action was retried.
    The plaintiff proved that the defendant’s cattle were running at large on the highway in 1871. The action was commenced August 24, 1872. The chief question was, whether the plaintiff could recover penalties for acts which occurred more than one year before the commencement of this action. The judge ruled that he could not, and so charged the jury. This court held that the objection that the action was not commenced within the time limited, could only be taken by answer, and that such objection not having been taken by the answer in the case, the plaintiff was entitled to recover.

      Thomas Gorlett, for the appellant.

      JE. Thayer, for the respondent.
   Opinion by Smith, J.

Present—Mullin, P. J., Smith and Gilbert, JJ.,

Order and judgment reversed, and new trial granted, with costs to abide the event.


text:
    JAMES A. TICE, Respondent, v. JAMES A. TICE, Jr., and Wife, Appellants.
    The action was brought to establish a lien on a 'farm of land, formerly owned by the plaintiff, in the town of Bewfane, for a portion of the purchase-price thereof, which the grantee, Louisa Jones, agreed to pay therefor.
    The questions presented by the appeal were purely questions of fact, and were disposed of by the Special Term upon conflicting evidence. The General Term, after reviewing the testimony, was of opinion that the decision below was clearly against the weight of evidence. The plaintiff’s case rested almost entirely upon his own evidence, which the court thought was so far impeached as to seriously impair, if not altogether to destroy it. The judgment of the Special Term was therefore reversed.

      George C. Greene, for the appellants.

      B. J. Hunting, for the respondent.
   Opinion by Mullin, P. J.

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


text:
    ANNE MALONE, Administratrix, etc., Respondent, v. HENRY B. HATHAWAY, Appellant.
    This case had been before this court upon a previous appeal, in which an opinion had been written by Taloott, J. On this appeal the court was of opinion that the court below had given effect to the views expressed by this court upon such former appeal, and affirmed the judgment.

      H M. Belden and J. G. Oochrane, for the appellant.

      James Break Perkins, for the respondent.
   Opinions by Mullin, P. J., and Smith, J.

Present ■—Mullin, P. J., Smith and Talcott, JJ.

Smith, J., dissented.


text:
    WILLIAM H. NEWMAN, Plaintiff, v. LE GRAND MARVIN and GEORGE L. MARVIN, Defendants.
    Motion by defendants for a new trial, on a case and exceptions at General Term, under section 268 of the Code. The action was brought to compel the defendants to convey to the plaintiff a certain lot of land in Buffalo, and to account for the rents and profits. Judge Gilbert in his opinion, says: “No plainer case than this was ever presented in a court of equity. The facts found by the learned justice at Special Term, are fully warranted by the evidence ; and they show not only that the property in dispute was purchased in violation of the rule that a trustee shall not deal with the trust estate for his own benefit, but in pursuance of a conspiracy between both defendants to deprive the plaintiff of the benefit of such purchase.”

      John G. Si/rong, for the plaintiff.

      E. 0. Sprague, for the defendants.
   Opinion by Gilbert, J.

Motion for a new trial denied with costs.


text:
    JEROME P. BIGNALL, Appellant, v. ARNOLD M. HARRIS and ERWIN L. HARRIS, Respondents.
    Appeal from a judgment for defendant, entered on the report of a referee.
    The action was brought upon two promissory notes, and the defense was interposed, that the notes were given upon a settlement between the parties for services rendered by the plaintiff and by mistake were given for $400 too much. The referee found for the defendant. The court, after a review of - the evidence, was of opinion that the evidence did not justify the finding, and reversed the judgment.

      I). O'Brien, for the appellant.

      Winn di Porter, for the respondents.
   Opinion by Smith, J.

Present — Mttllin, P. J., Smith and Gilbert, JJ.

Judgment reversed, the order of reference vacated, and a new trial granted; costs to abide -event.


text:
    FRANK L. STOWELL, Respondent, v. GEORGE F. HAZELETT and GEORGE S. McINTOSH, Impleaded, etc., Appellants.
    Appeal from a judgment, entered on the report of a referee, in favor of the plaintiff. The action was brought by the plaintiff, as assignee of a judgment creditor of defendant Hazelett, after return of an execution unsatisfied, to set aside a mortgage executed by the latter to defendant McIntosh, as fraudulent as against creditors. After reviewing the evidence, the court was of opinion that the consideration of the mortgage was shown to be worthless, and affirmed the judgment.

      O. T. Spencer, for the appellants.

      D. PL. Bolles, for the respondent.
   Opinion by Mullin, P. J-

Judgment affirmed, with costs.


text:
    CALISTA E. JONES, Respondent, v. PETER D. CARROLL, Appellant.
    Appeal from a judgment entered at the Tates County Circuit, in an action for trespass. The judge directed a verdict for the plaintiff, and for nominal damages. The General Term, after a review of the evidence, affirmed the judgment.

      D. B. Prosser, for the appellant.

      Ch. G. Judd, for the respondent.
   Opinion by E. D. Smith, J.

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

Judgment affirmed.


text:
    GEORGE O. TOWNSEND, Appellant, v. ROBERT BISSELL, Respondent.
    Appeal from a judgment in favor of -the defendant.. The action was in trespass for pulling down a wall constructed by plaintiff shortly before. The court was of opinion that the locus in quo was a lane, running between the premises of the respective parties, and had been used as such for more than fifty years, and that the plaintiff had no such possession as justified his bringing the action.

      A. B. Moore, for the appellant.

      D. O’Brien, for the respondent.
   Opinion by Gilbert, J.


text:
    WILLIAM JAMISON, Respondent, v. PETER CORNELL, Appellant.
    Appeal from a judgment entered at the circuit. The court, after a review of the evidence,'concluded that the cause was properly disposed of at the circuit, and affirmed the judgment.

      George B. Bradley, for the appellant.

      William Bumsey, for the respondent.
   Opinion by Smith, J.

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

Judgment affirmed.


text:
    ASABEL WATSON, Appellant, v. JOHN SMITH, Respondent.
    At a former term of this court, an appeal from an order made at Special Term, setting aside a judgment recovered by the plaintiff against the defendant, on the ground that the court had not obtained jurisdiction to enter the same, was reversed, thus holding that the court had obtained jurisdiction of the parties and the subject-matter, and that the judgment was regular.
    The order of the General Term has not been reversed, but remains in full force and effect. Since the reversal of the order of the Special Term, an execution has been issued, and a quantity of wheat belonging to the defendant levied on; and that wheat has been sold by the sheriff, and this action is brought for the conversion thereof.
    The defendant’s counsel objected on the trial to the judgment, on the same grounds urged on the argument of the appeal from the order; the court, however, followed the decision of the General Term, and held the judgment and the sale in pursuance of it regular, and ordered a verdict for the plaintiff, and this appeal is from that judgment.'
    The General Term held, that, if right in holding, on the appeal from the order, that the judgment was regular, the ruling at the circuit, in giving effect to it, was right, and could not be disturbed. Although that decision'of the motion might not be strictly res adjudieata upon the question of the’ validity of the judgment, yet, the court having arrived at its conclusion, after due deliberation and examination, would not allow the question to be again discussed before it, unless it was satisfied that the former decision was clearly erroneous, which it was not.
   Opinion by Mullin, P. J.

Judgment affirmed.


text:
    COMFORT ELWELL and PETER P. POST, Executors, etc., of JERRY BLAIN, Deceased, in Behalf of Themselves AND ALL OTHER Creditors of the Estate of Elhanan Van Liew, Deceased, Appellants, v. STEPHEN V. R. JOHNSON, ABRAHAM B. JOHNSON, Impleaded, etc., Respondents.

      Demw'r&r—action in hehalf of plaintiff and all ofhrn' creditors — what complaint in must contain. -

    An appeal from an order sustaining a demurrer to the plaintiffs" complaint.
    Tfie action was brought by the plaintiffs above named, in behalf of themselves and all other creditors of the estate of Elhanan Yan Liew, upon the theory that the defendants, the administrators, are trustees, by virtue of their office as administrators, and the defendants, Stephen Y. R. Johnson and Abraham B. Johnson, are trustees i/n. iwoitum of a fund arising from the sale of lands in Michigan for the payment of the debts of Yan Liew, and that the plaintiffs and others are the cestui que trust of that fund, as creditors of Yan Liew’s estate. The defendants demurred on the ground that the complaint did not state facts constituting a cause of action.

      The General Term was of opinion that the complaint was defective, 1st. So far as the plaintiff sued in behalf of other creditors, because it did not allege that there were any other creditors; 2d. Because it neither alleged that the plaintiffs were judgment creditors, nor any facts upon which a judgment could be given in their favor. That if it be not necessary to show in such case that the indebtedness has been previously adjudicated upon, the complaint must at least state the facts upon which the original indebtedness can be adjudicated upon in this action. The complaint in this case simply alleged that the plaintiffs, as executors, were creditors of the estate of Van Liew, in an amount which they “leave for the proof to determine.”
    The case of McCartney v. JBostwick (32 BT. 'V., 52) was distinguished, so far as it tended to show that it was not necessary to have recovered a judgment before bringing this action, as in that case no legal remedy existed.

      McDonald & Rose, for the appellants.

      Charles A. Hawley, for the respondents.
   Opinions by Gilbert and Dwight, JJ.

Order affirmed, with costs.


author: Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK v. ROYAL SAMMIS and RUDOLPH SAMMIS. THE SAME v. ROYAL SAMMIS and GEORGE B. BANKS.

      Venue — change of — affidavits for—what must state.

    When an accused person applies to change the place of trial, he must make a clear case, that, hy reason of popular passion or prejudice, he cannot have a fair and impartial trial in the county where the venue is laid.
    Affidavits stating the belief of persons that a fair trial cannot he obtained, are not sufficient. Facts and circumstances must be stated.
    Appeal from an order at Special Term, denying the defendants’ motion for a change of the place of trial.

      John R. Fellows and Charles W. Brooke, for the defendants.
    That a fair and impartial trial, by any means within the reach of the law, cannot be had in the county in which "the venue was laid, is a sufficient reason for changing the place of trial in a criminal case. (The People v. Long Island Railroad Co., 4 Parker, 604; The People v. Webb, 1 Hill, 179; The People v. Mary Bodine, 7 Hill, 147; The People v. Rulloff, 3 Park. Cr. 401.) The venue should be changed in a criminal case where the evidence of public excitement against the applicant is strong, although no actual experiment has been made by way of trying the cause, or even impanneling a jury, where such venue had been originally laid.

      Fra/ncis G. Barlow, for the people.
    It is a fundamental principle of the common law, that all persons accused of crime shall be tried by “a jury of the vicinage.” The motion should be granted only “on dear proof that the cause cannot be tried with safety to the defendants.” (People v. Vermilyea, 7 Cow., 139.) The grounds for removal must be “ clearly established.” (People v. Bodine, 7 Hill, 148.) It is the capacity of the people to judge fairly, that is to be inquired into, not their actual beliefs. Facts only can be considered. (People v. Bodine, 7 Hill, 148; Rex v. Harris et al., 3 Burr., 1330; S. C., 1 Bl. Rep., 378; Chitty’s Cr. Law, 200; Roscoe’s Cr. Ev., 236; The People v. Vermilyea, 7 Cow., 137,138,139; The People v. Webb, 1 Hill, 179; People v. Wright, 5 How., 28; 2 Wend., 251.) The belief must be as to the whole case, and not as to an isolated fact. (See 3 Wharton Crim. Law, § 3100; 27 N. Y., 336; 9 Iowa, 188.) In People v. Wright (5 How., 25) the motion was denied, on facts very similar to those of the case at bar. (State v. Burris, 4 Har., 584.) “ Great indignation and excitement relating to the crime is not enough.”
   Barnard, P. J.:

Ho sufficient case is made to change the place of trial upon these indictments. It is the right, both of the people and of the person accused of crime, to have the trial take place in the county where the crime is alleged to have been committed.

When an accused person applies to change the place of trial, he must, under all the cases, make a clear case, that, by reason of popular passion or prejudice, he cannot have a fair and impartial trial in the county where the venue is laid.

Affidavits stating belief of persons that a fair trial cannot be obtained, are not sufficient; facts and circumstances must be established by the moving papers. The only facts established by the defendants in this application, are, that great excitement exists in Suffolk county, in reference to an inhuman and nameless outrage on Charles Gr. Kelsey; that the public newspapers in the town of Huntington, where the crime was committed, have had articles, more or less expressing the popular passion.

I fail to discover that any passion or prejudice exists as to the guilt of any particular person. If the fact be, that a proposed juror has made up his mind as to the portion of the body found in Huntington bay being the remains of Charles Gr. Kelsey, such juror can be set aside, as having made up an opinion upon a disputed fact essential to the guilt of the accused. There is no such a state of feeling shown by the papers, as to authorize us to say, that a jury of Suffolk county cannot patiently hear and justly consider and decide upon the evidence which may be adduced before them on the trial of these defendants. The order should be affirmed.

Present — Barnard, P. J., Tafpen and Donohue, JJ.

Donohue, J., dissented.

Order affirmed, without costs.

       People v. Vermilyea, 7 Cow., 139; People v. Bodine, 7 Hill, 147.


text:
    MARIUS A. SORCHAN and CAROLINE M. SORCHAN, Trustees, etc., Appellants, v. THE CITY OF BROOKLYN, Respondent, Impleaded with GEORGE W. MAHONEY.

      Assessments—failure to comply with, statute in making—when sale under, is not vitiated by—Proceedings of assessors—how reviewed.

    Where a statute, regulating the imposing of assessments, directs that a certificate of the costs and expenses of the work be filed with a public officer, and such officer does not lay the assessment, but the certificate is directed to be given to him, merely to enable him to act intelligently in matters not connected with the assessment in question; held, that the failure to give such certificate does not vitiate a sale had under the assessment.
    The manner in which assessors, having jurisdiction of the subject-matter, perform their duty, cannot be reviewed collaterally, but must be reviewed by direct appeal from their determination.
    Appeal from a judgment in favor of defendant, entered on the decision of the court at Special Term, in an action brought to have certain assessments and assessment sales on plaintiffs’ land declared void.

      E. Ellery Anderson, for the appellants.
    The authority to assess was limited to the amount determined and certified. The object of the certificate was clearly to give to the property owners the protection of a determination signed by the assessors, and made public either to the commissioners for the improvement, or to the common council, by which the proportion of the total cost of the improvement which was to be assessed on their property should be fixed and determined. The following’ cases all hold that any departure from the requirements of the statute will render void any assessment or tax: Van Rensselaer v. Witbeck (7 N. Y., 517); Wheeler v. Mills (40 Barb., 644); In re Douglass (46 N. Y., 42); In re Cameron (50 id., 502); Platt v. Stewart (8 Barb., 493). An assessment which is required to be certified .by the assessors to the common council, and is not signed by the assessors, is not valid.

      Jesse Johnson, assistant attorney for Brooklyn, and William Q. De Witt, corporation counsel, for the respondents.
    The burden of proof in every portion of this action is with the plaintiffs. Their affirmative proposition, as to the apparent validity of the assessment, must be fully sustained before they have shown a wrong or burden which entitles them to ask relief from the equity side of this court. (Mooers v. Smedley, 6 Johns. Ch., 28; Mayor of Brooklyn v. Meserole, 26 Wend., 138; Scott v. Onderdonk, 14 N. Y., 9; Mace v. City of Newburgh, 15 How., 161; Bouton v. City of Brooklyn, 15 Barb., 375; Heywood v. City of Buffalo, 14 N. Y., 534.) The provision of the statute, relative to the certificate, is directory. (People v. Supervisors of Chenango, 8 N. Y., 318, 328; People ex rel. Crimmins v. McManus, 34 Barb., 620, 627; People v. Allen, 6 Wend., 486; Howland v. Luce, 16 Johns., 135; Striker v. Kelly, 7 Hill, 9, 24; Coles v. Trustees of Williamsburgh, 10 Wend., 659; Matter of the Empire City Bank, 18 N. Y., 199, 220; Sears v. Burnham, 17 id., 445; Robbins v. Gorham, 26 Barb., 586; Matter of Election of Directors of M. and H. Railroad, 19 Wend., 135, 143; Hall v. Tuttle, 6 Hill, 38, 42; Ostrander v. Walter, 2 id., 320; Cleveland Tele

      graph Co. v. Fire Commissioners, 55 Barb., 288; Matter of McCormack, 60 id., 128.)
   Barnard, P. J.:

• The plaintiffs seek by action to have declared void certain assessments, sales thereunder, and certificates thereon, as a cloud on their title.

By chapter 298 of Laws of 1861, the legislature appointed a commission to improve Atlantic avenue, in the city of Brooklyn. Under this act the assessors were directed to estimate the cost of grading and paving the avenue. The assessors were directed to1 certify this cost to the commission, and this amount was to be deducted from the whole cost of the work, and was to be assessed upon lands fronting on the avenue, and the remainder of the cost was to be assessed upon the first twelve wards of the city of Brooklyn. The assessors made no certificate to the commission, beyond passing a resolution fixing the cost of grading, and paving.

The first objection is made by the plaintiffs, that the omission to give this certificate was fatal. If the commission imposed the tax, and only had power to impose stich a tax as should be certified by the assessors, the objection would be a serious one, but in this case the commission laid no tax. The legislature imposed that, and directed the assessors to lay it on lands fronting on ¡the avenue.

The omission to certify to the commission, had no relevancy to the tax. It would simply inform the commission what part of the whole expense should be laid on the twelve wards. Under this law of 1861, no tax was laid. In 1869, the commission was ordered to complete the improvement' without delay, and to report to the common council, on or before the 1st of June, 1869, the total cost, and the commission was thereby dissolved after said 1st of June, 1869, and the further work was to be done by the common council. By the second section of this act, the assessors were, upon the making of such report, directed to determine the cost of grading and paving the avenue, and certify the same to the common council, and the said cost and expenses were to be assessed, levied and collected, as provided by the previous law. Bo certificate is proved to liave been given, and the commission did not report until February 28, 1870. Both these objections are urged against the assessment.

The direction to make the report by a certain date was directory, and not essential to the validity of the tax.

The certificate to the common council was not a step needed to the validity of the imposition of the assessment.

The law imposed the tax for the grading and paving the avenue, and the assessors were directed to lay it. They got, and were to get, no authority from the common council. The common council had, perhaps, a portion of the tax to collect of certain wards in the city, and the information as to the amount which was to be deducted from the whole costs, may have been the reason why the legislature directed the information to be certified to them; but the tax in question was imposed by the legislature, and the assessors must lay it under the law.

The objection taken to the manner in which the assessors performed their duty, and the form of their oath to the tax levy, cannot be reviewed collaterally. The assessors had jurisdiction of the subject-matter, and their acts must stand until reviewed by a direct appeal from their determination, Judgment affirmed, with costs.

Present—Barnard, P. J., Tappen and Donohue, JJ.

Judgment affirmed.

       Chapter 744, Laws of 1869.

       Matter of Empire City Bank, 18 N. Y., 199; Sears v. Burnham, 17 id., 445; People v. Supervisors of Chenango, 8 id., 318.

       Rusher v. Sherman, 28 Barb., 416; Stanton v. Ellis, 2 Kernan, 575; Buffalo & State Line R. R. Co. v. Sup. of Erie Co., 48 N. Y., 93.


text:
    JOHN R. STEPHENS and another, Appellants, v. WILLIAM F. MINNERLY and others, Respondents. THE PEOPLE ex rel. AMBROSE C. KINGSLAND and another, Appellants, v. WILLIAM F. MINNERLY and others, Respondents.

      Village—incorporation of—when proceedings for, not engoineS,.

    Courts will not enjoin parties from taking proceedings, authorized by law, to incorporate a village, because the parties applying for the injunction will be subjected to burdens of local government, disproportionate to the benefits accruing to them therefrom.
    Appeal from an order dissolving an injunction granted in this action.

      George W. Parsons, for the appellants.
    The papers show that defendants’ proceedings would be specially injurious to plaintiffs’ property. The distinction in this case, in respect to special interest of plaintiffs, is manifestly clearer and stronger than existed in the leading case of Milhau v. Sharp, reported first in 28 Barbour, 228, and affirmed in 27 New Yorb, 611. The plaintiff in that case showed that there would be explicit injury to his property by the construction, but not differing in principle from injury which might be common to all the owners on the street. (2 Abb., 252; Hanlon v. Supervisors, etc., 8 Abb. [N. S.], 268; S. C., 57 Barb. 390; Francis v. Schoellkoff, 53 N. Y., 154, 155; see, also, Davis v. The Mayor, etc., of N. Y., 14 id., 526, and cases there cited; Doolittle v. The Supervisors, etc., 18 id., 163.) It was proper for these plaintiffs to sue for the benefit of any and all similarly situated. (Code, § 119; Towner v. Tooley, 38 Barb., 598; Edwards on Parties, 136, 137; 3 John. Ch., 555; 1 Paige, 273.) The com-, plaint shows that the number similarly situated was i/ndejmite, and could not be fully known. (Coe v. Beckwith, 10 Abb., 296; S. C., 31 Barb., 339; Bouton v. City of Brooklyn, 15 id., 392.) Statutes must be expounded according to the meaning, and not according to the letter. (Pillow v. Bushnell, 5 Barb., 156; People v. N. Y. C. R. R. Co., 13 N. Y., 78; affirming, 25 Barb., 199; Holmes v.
      Carley, 31 N. Y., 290; Chase v. N. Y. C. R. R. Co., 26 id., 523; Bac. Abt., tit. Stat., 1, 5, 10; Dwarris’ Stat., rule 8 [American Rules], 144; People v. Utica Ins. Co., 15 Johns., 380, 381, Thompson, Ch. J.; 1 Kent, 462; Bac. Abr., tit. Stat., 1, 15; Plow., 18, 88; 2 Coke’s Inst., 64; 5 T. R., 449; Jackson v. Collins, 3 Cow., 89, 96, Savage, Ch. J.; People v. Draper, 15 N. Y., 532; Donaldson v. Wood, 22 Wend., 395; Potter’s Dwarris on Statutes, etc., 128; Rule 13 of the 45 Maxims of Vattel; Plowd., 465; Vattel, Bk. 2, chap. 17, § 285; 3 Sir E. Coke’s R., 15 [Caudey's case]; 2 Coke’s Insts., 25; vide 1 E. Coke’s 1st Insts.,. 24, b.)

      Thomas Nelson, for the respondents.
    The possible increase of taxation to which plaintiffs may be subject, or their liability to contribute to the expense of creating and maintaining said incorporation, gives the plaintiffs no right to bring this action. (Doolittle v. Supervisors of Broome Co., 18 N. Y., 155; Roosevelt v. Draper, 23 id., 323; Ayres v. Lowrie, 63 Barb., 458; Tift v. City of Buffalo, N. Y. Sup. Ct., vol. 1, p. 150; High on Injunctions, 291, § 522; Hill, on Injunctions, 45, § 92.) This statute is one of the legal provisions to enable communities to frame for themselves and carry on their own municipal government, and the statute is to be construed liberally, so as to enable the object for which the law was made to be accomplished, and not in a narrow spirit. (Weed v. Tucker, 19 N. Y., 422, 433; White v. Wager, 32 Barb., 250; 25 N. Y., 328; Fort v. Burch, 6 Barb., 60-75.)
   Barnard, P. J.:

It is proposed, under the general law, to incorporate the village of North Tarry town, to comprise an area of two square miles. Certain citizens, residing or owning property within the proposed village limits, bring an action to enjoin the persons and officers, of a class designated by law to act in such cases, from consummating the undertaking, upon the allegations that some square mile of the mapped territory does not contain the requisite population; that plaintiffs would be subjected to burdens of local government, vastly disproportionate to the benefits accruing therefrom; and that the proceedings therefor, for the incorporation, have not been shown to have been entirely formal. The plaintiffs, if injured at all, will suffer only in a manner common to the rest of the villagers, with an unascertainable difference in degree; and therefore, under well settled rules of law, their action must fail.

The attorney-general also brings an action upon the relation of the same parties, and for the same purpose. Very rarely, if ever, would any two persons propose precisely the same lines for the boundaries of a village, and a village government can seldom confer or inflict an exact’equality of benefit or injury; and yet village governments are authorized for a beneficial purpose, and are generally administered with beneficial results. Courts should hesitate before dispensing equity to the possible subversion - of law, through a broad doctrine that might permit a public officer, upon affidavits, to stop in limini the formation of any proposed local government. Even, if no doubt existed as to the authority of the attorney-general to maintain this action, the law has provided sufficient redress in case of failure to perfect a legal incorporation, and the facts as presenfed to the court, do not call for the fetters of a preliminary injunction.

Present — Barnard, P. J., and Donohue, J.

O^der affirmed, with costs.


text:
    PETER RILEY, Appellant, v. JAMES H. WATSON, Respondent.

      Mechanics' lien—Kings county—who is owner under the statute — chap. 478 of 1863.
    A notice of lien filed under the statute relating to liens in Kings county, which gives the name of the owner of the property who has contracted to sell it to the party who made the contract with the lienor, sufficiently describes the owner within the provisions of that statute.
    Appeal from a judgment in favor of .the defendant, entered on the report of a referee. ' .>/■’ ;

      Lewis <& Maekay, for the appellant..
    The notice of lien shows who the owner is, and is a sufficient notice, and the complaint shows that the claim is made against him. (Moran et al. v. Chase, 52 N. Y., 346; Hubbell v. Sehreyer, 15 Abb. Pr. [N. S.], 300.) The second exception is not well taken, for the reason that the person, other than the owner, for whom he furnished the materials, is not required to be named in the notice. The stone was furnished for, and used in the erection of, the cellar walls by permission of the owner. (Hart v. Wheeler, 1 N. Y. S. C. R., 403.)

      James Orombie, for the respondent.
    The notice of lien filed by the plaintiff was defective and invalid, because it did not state the name of the person against whom the claim was made. (Laws of 1862, p. 947, § 3.) This section requires the notice to state the person against whom the claim is made, and the clerk to enter under the heading, “ against whom claimed,” the name of such person. The statute is to be strictly construed. (Mushlitt v. Silverman, 50 N. Y., 360; Hauptman v. Catin, 20 id., 247; Grant v. Vandercook, 8 Abb. [N. S.], 455; Roberts v. Fowler, 3 E. D. Smith, 632; Hubbell v. Schreyer, 15 Abb. [N. S.], 300; Beads v. The Congregation, etc., 1 E. D. Smith, 656; Cronkright v. Thomson, id., 661.) The evidence shows that the plaintiff sold the stone to John R. Ball. Ball testified that he never made any contract with defendant about the stone, and there was n& proof he was a sub-contractor, or that the defendant permitted him to build.
   Barnard, P. J.:

The defendant was the owner of certain premises in Brooklyn, which he contracted to sell to a Mrs. Robbins, and agreed to advance her moneys toward the erection of six buildings thereon. After the completion of the buildings, he was to deed the premises to Mrs. Robbins, and to take back a mortgage for the price of the property, and for the advances so to be made. Under this contract the houses were erected.

The plaintiff furnished stone which was used in the building, but not at the direct order of the defendant. Within three months after the furnishing of such material, he served on the county clerk of Kings county and upon defendants, a notice, of which the following is a copy:

•“To the county clerk.of Kings county and to whom it may concern

“ Take notice, that I have and claim a lien for $529, against six houses and the lots on which they stand, situate in the city of Brooklyn, and described as follows: Commencing at the south-east corner of Flushing avenue and Hall street; running thence easterly along the southerly side of Flushing avenue 120 feet; thence southerly 100 feet; thence westerly 100 feet; thence northerly 100 feet to place of beginning. My claim is for building-stone furnished and used in the erection of said houses and furnished within three months last past. James H. Watson is the owner thereof. There are no street numbers to said houses to the knowledge of claimant.

“ Dated February 10, 1872.

“PETER RILEY.”

The referee held that the plaintiff had no lien, because this notice did not contain the name of the person against whom the claim was made, and dismissed the complaint with .costs.

By the provisions of the lien act for the counties of Kings and and Queens, a lien is given to a person who furnishes materials in building, by virtue of any contract with the owner or his agent, or with any contractor or sub-contractor, or any person permitted by the owner of such lands to build, upon filing a notice, as required by the third section of said act. This section requires the notice to state the person against whom the claim is made, and the name of the owner of the building. Mrs. Robbins was not. a contractor within the meaning of the lien act.

By the first section of this lien act, a person who has contracted to sell, shall be deemed the owner within the meaning of the act. This lien is given, if at all, because the owner permitted another person to build ; that such was the design seems evident. It met the objection encountered in Loonie v. Hogan, by inserting the clause under consideration, and by a declaration that the legal owner was to be deemed the owner, notwithstanding an agreement to sell. Against whom could the plaintiff make a claim other than against the real owner % There was no contractor or sub-contractor. The contract was not made with the defendant or his agent.* Mrs. Robbins was permitted to build by the .defendant. The person against whom the claim was made and the owner were identical.

The notice claimed the lien, and gave the name of the owner. We think it was sufficient to entitle the plaintiff to his lien.

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

Present — Barnard, P. J., Tappen and Donohue, JJ.

Ordered accordingly.

       Chapter 478, Laws of 1863, § 1.

       Loonie v. Hogan, 9 N. Y. (5 Selden), 435.

         Supra.


text:
    SIDNEY W. CROFUT v. SAMUEL M. WOOD and POLLY GRAY, Respondents, MATTHIAS B. SMITH, Appellant, and others.

      Unrecorded mm'tgage—recital of, in, deed — not notice.

    A recital in a deed, given by a former owner to the grantor of the present owner of real estate, that the premises are subject to two mortgages, existing liens on said premises, if one of such mortgages is not recorded and notice thereof is not given to one taking a mortgage from such present owner, does not give a right of priority to the unrecorded mortgage over the one subsequently given and recorded.
    Appeal from a decision of the Special Term,- overruling the report of a referee, appointed to determine the claims' of the respective claimants to the surplus money arising in an action for foreclosure of a mortgage held by the plaintiff.
    The referee found, that on or about September 28, 1872, the mortgaged premises were, with other property, conveyed by Samuel M. Wood and others to Clements Trimble, by deed of that date, recorded in the Kings county register’s office. That such deed recited the conveyances to be “ subject, however, to two certain mortgages, now existing liens on said premises, amounting, in the aggregate, to the sum of $2,250, and taxes and assessments to the amount of $150.”
    The mortgages, subject to which said conveyance was made, were: one made by Samuel M. Wood and others to Sidney W. Crofut, to secure $1,200, dated January 3, 1871, and recorded January 6, 1871; another made by the same parties to Matthias B. Smith, dated November 1, 1871; but not recorded till March 12, 1874.
    That on October 10,1872, Clements Trimble conveyed the mortgaged premises to Bichard S. Gray, by deed of that date, recorded October 15,1872. Such deed recited that “ the four pieces of property are subject to mortgages, which, together, amount in the aggregate to the sum of $12,300,” which were assumed by the party of the second part.
    That on December 1, 1872, Bichard S. Gray and wife made, executed and delivered to Polly Gray, for sufficient consideration, a mortgage to secure $1,700 upon the mortgaged premises (producing the surplus), which mortgage was dated that day, and recorded December 23, 1872.
    Polly Gray never had actual notice of said mortgage to Smith, until after a judgment of foreclosure was entered in an action by her to foreclose her mortgage.
    He found, as conclusions of law, that, by the recital in the deed of Wood to Trimble, notice was. given to Polly Gray of the amount of the incumbrances existing upon the premises.
    That her mortgage was a lien upon the surplus herein subordinate to that of the Smith mortgage.
    That the entire surplus belonged to Matthias B. Smith, and should be paid to him after deducting the expenses of this reference and the commissions of the treasurer of Kings county.

      Alonzo C. Farnharn, for the appellant, Matthias B. Smith.
    A statement in a recorded deed, that it is made subject to a mortgage held by a third person, is constructive notice to all claiming under such deed, of the rights of the holder of the mortgage. (Campbell v. Vedder, 1 Abb. [N. Y. Ct. App. Decisions, Dec. 1866), 295; 4 Peters, 83, 88; 8 Cow., 586; 6 Paige, 649; 18 Barb. 14; 38 N. Y., 165; 38 Barb., 488; 2 Barb. Ch., 151; 15 N. Y., 354.) If the information possessed by the party would, if it had been followed up by prompt examination, have led to a discovery of such mortgage or conveyance, the information possessed by the party amounts to implied notice of such instruments. (3 Mye. and K., 699; 2 Sug. on Vend., 552; 8 N. Y., 274; 10 Johns., 374, 461.) If there are circumstances sufficient to put a person on inquiry, he acts at his own peril if he makes no inquiry. (1 E. D. Smith, 154.) Ho greater estate or interest shall he construed to pass by any grant or conveyance than the grantor himself possessed at the delivery of the deed. (Rev. Stat., part 2, ch. 1, title 2, § 143.)

      James K. Averill and W. T. B. Milliken, for Polly Gray.
    The mortgage first recorded is presumptively the prior lien, and entitled to the surplus on a foreclosure and sale. (Freeman v. Schroeder, 29 How., 263; Freeman v. Schroeder, 43 Barb., 618; 1 R. S. [2d ed.], ch. 3, part 2, § 1, p. 707.) A notice, to supply the place of registry, must be more than barely sufficient to put the party on inquiry. (Tuttle v. Jackson, 6 Mead, 213; Jackson v. Van Valkenburgh, 8 Cow., 260; Jackson v. Post, 15 Mead, 588, and cases there cited; Grimstone v. Carter, 3 Paige, 421; Williamson v. Brown, 15 N. Y., 354; Beekman v. Frost, 18 Johns., 555; Dey v. Dunham, 2 Johns. Ch., 182.) It is well settled, that if one affected with notice convey to another without notice, the latter is as much protected as if no notice had ever existed. (Jackson v. Given, 8 Johns., 137.) The ground of the numerous decisions seems to be the actual fraud of the party in taking a second conveyance, and with knowledge of the first, and with intent to defeat it. (Dey v. Dunham, 2 Johns. Ch., 182; Jolland v. Stambridge, 3 Vesey, 478; Hine v. Dodd, 2 Atk., 287; approved, 8 Johns., 141; Jackson v. Van Valkenburgh, 8 Cow., 264; Beekman v. Frost, 18 Johns., 555; Jackson v. Davenport, 18 id., 300.) The presumption of- notice which arises from proof of that degree of knowledge which will put a party upon inquiry, is not a presumption of law but of fact, and may therefore be controverted by evidence. (Supra, 15 N. Y., 354, 360; 1 Hill, on Morts., p. 594, quotes the case of Jones v. Smith, 1 Hare, 55.) “It is neither the purpose nor the office of the recording acts to charge the immediate parties with constructive notice of the precise contents of the instruments they execute, but to notify subsequent incumbrancers and purchasers of the rights such instruments are intended to secure.” (Mead v. Bunn, 32 N. Y., 275.)
   Barnard, P. J.:

The Gray mortgage was first recorded, and, primarily, Mrs. Gray has the first lien by reason of priority of record. What has she done, whereby her 'mortgage is to be made subsequent to the Smith mortgage ? That mortgage was first in date, was given for a good consideration, but was not recorded. Mrs. Gray had no actual notice of the Smith mortgage. In the deed from Wood to Trimble, there is this clause: Subject, however, to two certain mortgages, now existing liens on said premises, amounting in the aggregate to the sum of $2,250.” This deed is dated September, 1872. In October of the same year, Trimble conveyed to Richard E. Gray. Gray, in December, 1872, executed the mortgage to Polly Gray. There was but one mortgage on record when Mrs. Gray took her mortgage, and when Trimble sold to Richard Gray, the Crofut mortgage. Is that clause in the Trimble deed, notice of the Smith mortgage to Polly Gray? What notice is it? We assume that she searched and found a deed, dated three months before she took her mortgage, which recited that the property was then subject to two mortgages, amounting to $2,250. She searches and finds but one on the record. Ro name is given in the deed of the person by whom or to whom given. She takes her mortgage and records it. Is this evidence to be held sufficient to make her guilty of a fraud, as against the Smith mortgage, in recording her mortgage first ? Was she hound to examine the Trimble deed at all ? Must' a person, about to take a mortgage, examine the deeds of the several grantees of the title about to be incumbered, to see if those, deeds mention mortgages not recorded ? If there be an obligation to examine the deeds, and they do recite the fact that, at its date, the title is subject to mortgages, is this to be notice of the continuance of such mortgages, as against the record.

We think Mrs. Gray entitled to the surplus.

Order affirmed, with costs.

Present — Barnard, P. J., and Donohue, J.

Order affirmed, with costs,


author: Barnajrd, P. J.:

text:
    HENRY WARREN LANCEY, Respondent, v. JOSIAH G. CLARK, Appellant.

      Declarations of third person—when admissible — Acmmrwdation paper.

    This action was brought by the plaintiff upon a promissory note, made by the defendant for the accommodation of Lambert & .Lincoln, by whom the same was discounted, and the proceeds thereof received. Upon the last day.of grace, Lincoln, one of the firm, acting, as he claimed, as the agent of the plaintiff, and with money furnished by him, purchased the note, and caused the same to be protested. Upon the trial the defendant offered to prove declarations oi Lincoln, showing that he knew the note was given for the accommodation of the firm, and that he had promised the defendant to pay the same at maturity, which evidence was excluded by the referee. Held, that its exclusion was error; that it was material as a part of the controversy, and in determining the credibility of Lincoln.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought upon a promissory note made by the defendant to the order of one Frederick Lambert, which was indorsed by him, and by the firm of Lambert & Lincoln, of which he was a member. The note was discounted, and the proceeds received by the firm. On the last day of grace, Lincoln, one of the firm of Lambert & Lincoln, called at the bank and paid the note, telling the clerk that he wished to hold the maker and the indorser thereof. Upon the trial Lincoln claimed that in purchasing the note, he was acting as the agent of the plaintiff, and with his money. The defendant offered to prove that Lincoln knew the note was given for the accommodation of the firm, and that before its maturity he 'promised the-defendant that he would pay the same. Upon the objection of the plaintiff this evidence was excluded.

      Cassedy c§ Brown, for the appellant.

      Thomas H. Hubbard, for the respondent.
   Barnajrd, P. J.:

We think the referee erred in excluding testimony going to show that George S. Lincoln, one of the firm of Lambert & Lincoln, knew that the note in question was lent by defendant to that firm for their accommodation, and that he, Lincoln, promised Clark to pay it at maturity. It is true that Lincoln was not a party to this action, and, as a general rule, conversations between parties, other than parties to the record, are inadmissible. It is also true, that the evidence offered was of a date anterior to the alleged connection of plaintiff with the note. The issue, however, to be tried, Was, whether the note was paid by Lincoln. Clark had lent the-firm the note, and had delivered it to Lambert. It was discounted, and the firm received the proceeds. Lincoln gave his check for the note at maturity, and did not state to the bank where he paid "it, that he wanted to purchase it for any other person, but that he wished to hold the other indorsers. He denies, upon this trial, that he knew the note was loaned to the firm, and says he bought the note for plaintiff. It was a material fact, in determining the truth of a transaction which rests so much upon the testimony of Lincoln, whether he was to pay the note by agreement with Clark and his copartner Lincoln. He procured, he says, plaintiff to buy the note; he says he wrote plaintiff that the note was good, and yet that he wanted plaintiff to send money to take it up. If the additional fact were proven, that Lincoln agreed to pay the note himself at maturity, the referee may have found that the transaction was a different one from what he has found it to be. We think it was material, as a part of the controversy, and in determining the credibility of Lincoln, that the evidence should have been admitted.

The judgment should be reversed, and a new trial granted at circuit, costs to abide event.

Present — Barnard, P. J., Tarpen and Donohue, JJ.

Ordered accordingly.


author: Barnard, P. J.: T apípen, J.:

text:
    THE KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent, v. CHARLES A. HILL, THOMAS IREMONGER, GEORGE IREMONGER and others, Appellants.

      Usury—ywrehaser on execution may attach previous usurious lien.

    A purchaser of property under an execution, may attack a previous usurious lien thereon.
    A declaration that the title to property is held in trust to secure costs, counsel fees and advances, made and incurred in suits concerning the premises, does not create a trust authorised by statute.
    Appeal from a judgment of foreclosure and sale, in favor of the plaintiff, entered on the report of a referee.
    The action was brought to foreclose a mortgage executed to the plaintiff by the defendant Charles A. Hill. The defendants, Ire-mongers, had filed a notice of mechanics’ lien against defendants, Hill and North. The lien had been foreclosed, and the premises sold and purchased by the attorney for the Iremongers, he executing the declaration of trust referred to in the opinion. The Iremongers set up the defense of usury in this action.

      John H. Bergen and Philip Reilly, for the appellants.

      H. W. Johnson, for the respondent.
   Barnard, P. J.:

I think the referee erred in excluding the proof offered to show usury on the mortgage given by Hill to plaintiff.

The defendants (Iremongers) succeeded to Hill’s estate, by virtue of the sale under their lien, judgment against North and the Hills. They may avoid, for usury, a mortgage claiming priority. The cases are conflicting on this question, but it seems well settled, that a purchaser of property under an execution, may attack a previous usurious lien. The defendants (Iremongers) have such an estate as permits them to set up this defense. At the sale, Mr. Kuhn, who seems to have been their attorney, bid in the property and took the deed in his own ñamé, but executed to the Iremongers a written declaration of trust, stating that his purchase was at their request and that he had title in trust therein, and to secure costs, counsel fees and advances, made and incurred in suits concerning said premises. ,

This not being an express trust authorized by statute, no estate vests in the trustee. The title would be in the beneficiaries subject to the execution of the power in trust,

The judgment should be reversed, and a new trial granted at Special Term, costs to abide event.

T apípen, J.:

. This is an appeal, by certain of the defendants, from a judgment entered upon the report of a referee, in favor of the plaintiff, in an action for the foreclosure of a mortgage.

The only questions which will be considered in the opinion, are, whether the defendants (Iremongers), had acquired an interest in the mortgaged premises which entitles them to question the validity of the mortgage, and whether the defense of usury, set up in their answer, is available to them as subsequent incumbrancers or purchasers of the premises.

The complaint avers a mortgage made by the defendant, Charles A. Hill; a guarantee thereof, in writing, by the defendant, Curtis L. North; and that the defendants therein, including the defendants, Iremongers, who defend this action, have or claim some interest or lien in the mortgaged premises, which lien or interest, if any, accrued subsequent to the lien- of the mortgage; and the usual judgment of foreclosure and sale is sought..

Among other matters set up by the defendants, Iremongers, in their answer, is an averment that they furnished labor and materials toward the erection of a house on the premises; that they filed a builder’s lien on the 6th of September, 1873; that they foreclosed the lien and had judgment on the 24th of February, 1874, and a sale thereunder, whereby they became the purchasers and owners of all the right, title and interest of the defendants, Hill, North, etc. They further aver that the mortgage in suit was •usurious, and specify the usurious agreement, and ask judgment for the cancellation thereof.

At the trial, the referee ruled that the defendants had no right to interpose the defense of usury, and that no testimony to establish it would be received, and the defendants excepted. The referee also refused to allow them to show that they went into possession under the deed made on the sale under the judgment foreclosing their builder’s lien.

It appears by the testimony, that the defendant, Curtis L. North, was, at one time, owner of the premises; that conveyance went from him to Hill; and that Hill mortgaged to the plaintiff.

The facts show that the defendants, Iremongers, had acquired by operation of law, and not as strangers, an interest in, or lien on, the premises, entitling them to question the plaintiff’s mortgage ; and the defense of usury is available to them.

The case of Cavan v. Kelly, holds that an execution creditor, having a levy, may avoid a prior chattel mortgage for usury; and that such defense is available, is also held in Dix v. Van Wyck, and in Thompson v. Van Vechten.

In Williams v. Tilt, quoting Post v. Dart, it is said, a mere stranger cannot insist on the invalidity of an usurious security, but it may be set up by one claiming under the mortgage. In Mason v. Lord, it is held, that a judgment creditor, having a lien upon the property, has a right to avoid a mortgage prior to his lien, by showing it usurious. Numerous authorities are quoted at the foot of this case, as to what parties may, and what parties may not, raise the defense of usury; and while the courts seem to have been occasionally in conflict on this question, yet the weight of authority and the later decisions are all in favor of the proposition, that it may be set up by a subsequent lienor' or a grantee who does not take the estate with an express reservation as to the mortgage security sought to be defeated. Other cases are cited in The Merchants' Exchange Bank v. Commercial Warehouse Co., which case also embodies the opinion of Jones, J., of the Superior Court, in which certain rules are stated and approved upon this question. On the authority of these .eases, we hold, that, on establishing an interest in the mortgaged premises which was acquired without any reservation as to the mortgage in suit, the defendants, Iremongers, were entitled to offer proof of usury, to defeat the same.

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

Present — Barnard, P. J., Tappen and Donohue, JJ.

Ordered accordingly.

       Thompson v. Van Vechten, 27 N. Y., 568; Mason v. Lord, 40 id., 476; Merchants’ Ex. Bank v. Com. Warehouse Co., 49 id., 636.

       1 R. S., 729, § 58.

       Section 59.

       3 Alb. Law Jour., 373.

       2 Hill, 522.

         27 N. Y., 568.

       36 N. Y., 325.

       8 Paige, 640.

       40 N. Y., 488.

       49 N. Y., 643.


author:
Tappen, J.:
      Barnard, P. J. (dissenting):

text:
    EMMA A. BEDELL, Respondent, v. CHARLES W. BEDELL and GEORGE S. BEDELL, Appellants.

      Tft'cmd—when contract may mi be rescinded for—Besiitution.

    The defendants having threatened to contest a will, under which the plaintiff was a devisee, she agreed to assign to them certain mortgages if they would suffer the will to be proven without opposition. The will was afterward admitted to probate without opposition, and the mortgages assigned to defendants in pursuance of the agreement. The plaintiff then brought this action to compel a reassignment of the mortgages, on the ground that the assignment was obtained by means of false and fraudulent representations. Held, that if a contract is sought to be rescinded for fraud, the party claiming rescission must restore, or offer to restore, that which he has gained by reason of the contract, before he can claim its rescission; that if there can be no restoration, there can be no rescission; and that the plaintiff, being unable to restore the defendants to the position they had before the will was proven, she could not recover.
    ■Appeal from a judgment in favor of plaintiff, entered at Special Term. The action was brought to compel the reassignment of certain mortgages obtained from the plaintiff by the alleged fraudulent representations of the defendants.

      E. More, for the appellants.
    The agreement to withdraw objections to probate, was a sufficient consideration for the settlement and subsequent assignment. (Seaman v. Seaman, 12 Wend., 381.) This action will not lie, because the plaintiff cannot, or, if she can, she did not, offer to restore us where we were when the settlement was made. (Sinclair v. Neill, 3 N. Y. S. C., 74: Cobb v. Hatfield, 46 N. Y., 533; Springer v. Dwyer, 58 Bar., 189;
      Pullman v. Alley, 53 N. Y., 637; Hogan v. Weyer, 5 Hill, 389.)
    Z>. P. Barnard, for the respondent.
   Tappen, J.:

This is an appeal from a judgment in favor of the plaintiff, on a trial at the Kings Special Term. The plaintiff sought to set aside certain assignments of mortgages, which assignments she had made to the defendants, alleging them to have been without consideration, and to have been obtained from her by false and fraudulent statements on the part of the defendants. The plaintiff is sister to the defendants. Their mother, Lydia Bedell, died on the 20th of December, 1871, leaving a will, whereby her property was given to the plaintiff, and to Louise, the plaintiff’s sister, to the exclusion of the brothers. These brothers (being the defendants in this action) threatened to contest the will, on the ground of the incapacity of the testatrix, by reason of alleged insanity, and the mortgages were assigned to them, after proof of the will, to carry out an agreement of settlement, whereby they withdrew all opposition. The plaintiff consulted several family friends, and they told her the matter of settlement with her brothers had better be arranged among themselves. She testifies that one of the friends seemed inclined to think she ought to divide with the brothers. , Her sister Louise does not contest the settlement; she participated therein, and is satisfied therewith. She testifies that she was willing from the first, and that she thinks her sister, the plaintiff,-did it very willingly, of her own free will. The attending physician testifies that he never stated to the defendants, that their mother was insane. The assertion that he did so state, is testified by the plaintiff to have been made to her by the defendants, and to have influenced her in consenting to the settlement which she now seeks to revoke. The sister, Louise, testifies that the defendants’ talk about their mother’s insanity, did not make her believe that she was insane; that Emma, the plaintiff, said she was not insane, and that defendants could not break the will. The plaintiff had abundant opportunity to know every fact bearing on the question of her mother’s capacity. The brothers and sisters dwelt with their mother, as one family, under the same roof, long before the mother’s death, and at the time thereof, and for some time thereafter. A brief review of the circumstances attending the making of the will, shows activity and secrecy on the part of the plaintiff. The making of the will, and the death of the testatrix, appear to have happened on the same day, the 20th December, 1871. A lawyer was sent for by request-of testatrix. The plaintiff says, her sister Louise carried the message. Louise says she did not. The brothers had a place of business two blocks off, but they were not summoned. Three days afterward, one of them asked plaintiff if their mother had not made a will, and she told them, “ she did not know anything about it.” They seem to have ascertained the fact, at the surrogate’s office, by the usual citations, or in some other way. The will was proven on the 19th of January, 1872. The opposition to the will was pending for some time previous; friends were consulted; assertions made by the defendants of their mother’s incapacity, for the causes stated, and by the plaintiff and her sister to the contrary; the agreement for settlement, whereby the brothers were to receive $8,000 of the estate, was made; and, in the following month of March, after the will was proven without opposition, and letters testamentary issued, the mortgages in question were assigned by the executors to the defendants, in execution of the agreement; and in the following month of December, the plaintiff instituted this action. The plaintiff and Mr. Lowrey, who appears to have been the family solicitor, were the executors. The brother, Charles, was at one time the plaintiff’s guardian. He had an accounting and release, in the surrogate’s office, about the 4th of November, 1871, before this will was made, and thereafter, and until June, 1872, he took charge of the plaintiff’s affairs as an agent, and then, she testifies she discharged him.

The following extract from her testimony indicates that she knew as much of her mother’s condition, and of the physician’s opinion as any one. Q. “ You knew a will was drawn ? ” A. I supposed it was di-awn that afternoon, but I did not see it, and could not say it was a will; ” “I was not with her myself.” Q. “ W ere you in the room when your mother signed the instrument?” A. “I was.” Q. “ Did you see any of the witnesses sign any instrument ? ” A. “Yes.” Q. “Was she perfectly sound in mind?” A. “I know nothing about that, except what thephysioicm told me from t/ime to time? The other sister says, she and plaintiff and Mr. Marcellos were present, and she knew it was a will. We think, upon a review of the whole case, that the settlement was made for family reasons and for peace. The assertion of the plaintiff, that she was induced to agree to a settlement, already voluntarily agreed to by her sister, by reason of any false statement made by the defendants, is not sustained. The judge, at Special Term, says she discussed the matter with her sister and Mr. Lowrey, and deliberately made the assignment; that she did not act in haste, and was influenced by a meritorious wish to promote family harmony.

There is another view of this case, however, which, upon the law, bars a recovery. The defendants have foregone and lost their right to contest the will, and the plaintiff cannot restore them to the position they had before the will was proven. The plaintiff, by an agreement of settlement, procured the defendants to withdraw their intended opposition to the probate of the will, and thereupon it was proven and established. After this, the agreement was carried out by the execution of the assignments of mortgages in question. The plaintiff has the benefits conferred, and the estate bequeathed, by the will. If the defendants are now to give up what they received under this agreement, it should be on condition that their right to oppose the will be restored to them; but this ccmnot be.

The agreement was valid, and whether they would have succeeded in the litigation, is not the test. If the members of a family settle among themselves the disputes which may arise touching an inofficious will, which is about to be contested and litigated, the settlement ought to be final when its conditions are fully performed. If a contract is sought to be rescinded for fraud, the party claiming rescission'must restore, or offer to restore, that which he has gained by reason of the contract, before he can claim its rescission, And if there can be no restoration, there can be no rescission.

The judgment should be reversed, and a new trial granted at Special Term, costs to abide event.

Barnard, P. J. (dissenting):

The defendants obtained from the plaintiff a transfer of $8,000, in mortgages, by virtue of an allegation that they intended to contest a will which the mother of all the parties had made in favor of plaintiff and her sister. That such contest was to be based on the insanity of the mother,'at the date of the execution of the will, and . that they, the defendants, had been told by the family physician that testatrix was insane at that time. The testatrix was not insane, and the doctor had not said she was. The transfer was made, no objections to the probate were filed, and the will was proven. The plaintiff, since the probate, has discovered the falsehood asserted, and' seeks to recover back her property, as having been procured by fraud.

Two objections are made to her recovery. The first is, that the finding of the court below should be reversed as against evidence. There was but one witness sworn as to the allegation made by the defendant, as to what the doctor had said about the insanity of the testatrix, and that was the plaintiff; neither defendant was sworn. It is. admitted by the answer, that the defendants did allege insanity as the basis of their proposed contest, but neither defendant denied having told plaintiff that the doctor had said to them, or one of them, that she was insane. In the absence of such denial, I do not see how an appellate court could disturb a finding.

The second objection is, assuming the false statement, that the. will, having been admitted to probate, it is not now possible to reinstate the parties in the position they were in before the transfer, and that, therefore, plaintiff must fail. The principle is well settled, that, where property is acquired by fraud, the party seeking to recover back the fraudulently acquired property, must give up all benefits of the bargain. In this case, under the evidence, the plaintiff has obtained nothing. The testatrix was not insane, and the doctor never said she was. The contest threatened was, itself, a pretense based upon falsehood. Judgment should be affirmed, with costs.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Barnard, P. J., dissented.

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

       Seaman v. Seaman, 12 Wend., 381.

       Sinclair v. Neill, 3 N. Y. S. C., 74; Cobb v. Hatfield, 46 N. Y., 533; Hogan v. Weyer, 5 Hill, 389.

         Pullman v. Alley, 53 N. Y., 637.


author: Tappen, J.:

text:
    ABRAHAM SMITH, Executor, etc., of EDWARD SMITH, Deceased, Appellant, v. JANE CHRISTOPHER and another, Respondents.

      Mcecutor—claim by, against estate of his testator — how proved — 2 5. 8. (4th ed.), p. 274; Oode, § 399 — effect of offering declarations of a deceased person in his own favor.

    An executor who has a claim against the estate of his testator, must prove the same before the surrogate, who has power to examine and determine upon its validity, on the return of a citation issued for that purpose, directed to the proper parties, or on the final accounting.
    If a party mentioned in section 399 of the Oode, testifies to declarations of a deceased person in his own favor, the prohibition contained in that section does not apply to counter-declarations offered by the adverse party.
    Appeal from a decree of the surrogate of the county of Rock-land.

      George W. Wager, for the executor, appellant.

      Andrew Fallon, for the respondents.
   Tappen, J.:

On a final settlement of the accounts of the executor, the surrogate of Rockland charged the executor, as such, with the sum of $3,000, being the amount of a certain State bond which, at the testator’s death, had been found in his trunk, and which the executor claimed to own as his sole property. The executor was a son of the deceased, and the bond was registered in the son’s name. The proof shows, and the surrogate has found, that it was the property of the testator ; that the testator’s money, in his lifetime, was invested in the bond; that it was put in the name of Abraham Smith (the son and executor), solely to evade the payment of taxes by the testator.

At the accounting, all parties being before the surrogate, the executor presented a claim for $2,000, for moneys which he alleged to be his own, and which the testator had in his lifetime collected and retained; and the executor offered to prove this claim as a debt due to him from the testator. The surrogate denied the application, stating in the decree that he had no jurisdiction to allow or determine the same. Inasmuch as an executor cannot sue himself in an action at law, it is provided by statute, that no part of the.property of the deceased shall be retained by an executor or administrator, in satisfaction of his own debt or claim, until it shall have been proved to, and allowed by, the surrogate; and the proof of such debt or claim may be made, on the service and return of a citation for that purpose, directed to the proper persons, or on the final accounting; and this course is the general practice,

This proceeding is not to be confounded with the claim of a creditor disputed by the executor, where such creditor is not either an executor or administrator. In such cases, the surrogate has not jurisdiction. But where an executor or administrator is a creditor of the deceased, the statute expressly authorizes proof of his claim to, and its examination by, the surrogate, and he is not permitted to retain any part of the property of the deceased in satisfaction thereof, without such proceedings. The surrogate, in passing upon the claim of the executor to the $3,000 bond, admitted the testimony of a party to the proceeding, being the testator’s widow, who testified to her husband’s declaration of ownership in himself. The executor thereupon offered two written declarations, having the testator’s signature, and tending to sustain the executor’s title to the bond, and these, on objection, were excluded. We are not now prepared to say how far they are affected or excluded bysection 399 of the Code; but, if a party in interest testifies to declarations of a deceased person, the prohibition contained in that section does not apply, and counter-declarations are admissible.

Inasmuch as the case must go back to the surrogate to take proof of a claim offered by the executor as a creditor, the whole proceeding will then be before him, and any error in receiving or rejecting testimony can be corrected.

Decree reversed, and proceedings remitted to surrogate, costs to abide event.

Present — Barnard, P. J., Tappen and Donohue, JJ.

Decree of surrogate reversed, and new trial granted, costs to abide event.

       2 R. S. (4 Edm.), 274.

       Dayton on Surrogates, 859; Moore v. Moore, 21 How., 211; Robinson v. Raynor, 28 N. Y. 494; Matter of Cunningkam, 1 Hun S. C. R., 214.

         Andrews v. Wallege, 17 How., 268.


author: Tapped, J. :

text:
    WILLIAM EVANS, Respondent, v. THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, Appellant.

      Insurance policy—promise by company to contiime in force after forfeiture—when ■not enforced.

    When a policy of insurance has been forfeited by a violation of one of its conditions, and not by the non-payment of premiums merely, so that the policy is void, a mere promise made thereafter, without consideration, to continue such policy in existence upon the payment of an additional premium, which is thereafter tendered to, but not accepted by the company, will not be enforced. ■
    Appeal from a judgment for the plaintiff, entered in Kings county on the report of a referee.

      Edgar 8. Van Winkle, for the appellant.

      Wm. M. Northrop, for the respondent.
    A company may waive any ground of forfeiture or defense. (Bliss on Life Insurance [2d ed.], § 266; Carrol v. The Charter Oak Insurance Company, 10 Abb. [N. S.], 166; Kolgers v. The Guardian Life Insurance Company, id., 176; Shelden et al. v. The Atlantic Fire and Marine Insurance Company, 26 N.Y., 460,465,466; Liddle v. The Market Fire Insurance Company, 29 id., 184; Boehen et al. v. The Williamsburgh City Insurance Company, 35 id., 131; Sherman v. The Niagara Fire Insurance Company, 46 id., 526; Bodine et al. v. The Exchange Fire Insurance Company of the City of New York, 51 id., 117.) Or the act relied upon must be substantially an estoppel. (Bliss on Life Insurance [2d ed.], § 267; Ripley v. Ætna Insurance Company, 30 N. Y., 136,164.) A consideration agreed to be paid is sufficient to uphold and enforce this agreement. The court, in the case of The Trustees of the First Baptist Church v. The Brooklyn Fire Insur

      ance Company (19 N. Y.), decided, that, “ In any subsequent agreement for a renewal or continuation of the risk, it was competent for the parties to contract by parol and to waive the payment in cash of the premium, substituting therefor a promise to pay on demand, or at a future day.” This parol agreement, for the payment of the extra premium of two and a half per cent, as a condition of keeping the policy in full force and effect, is not void by the statute of frauds. (The Trustees of the First Baptist Church v. The Brooklyn Fire Insurance Company, 19 N. Y., 305, 307, 308.)
   Tapped, J. :

This is an appeal from a judgment entered in Kings county, on the report of a referee in favor of the plaintiff.

The defendants, on the 28th of October, 1869, issued a policy on the life of Charles A. Starr, for $6,500, payable at his death to Samuel Leddell. Shortly after this, Starr went to Louisiana, where he remained until his death, on the 18th of March, 1872, and Leddell thereafter assigned his claim on the policy to the plaintiff.

Starr had a written permit from the company, dated November 1, 1869, to go to New Orleans, to reside therein, and return, the permit to expire July 1, 1870. When payment of premium was due, October 27, 1870, Leddell sent an agent to the company’s office to pay it. The person in charge of the business at such office required an additional premium of two and a half per cent, because Starr was down south. This agent, the witness Plienix, testifies: I asked him if he would keep the policy alive until next day, when I would see Mr. Leddell. He said he would. There were two gentlemen inside the desk. I told Mr. Leddell the circumstances.” Another witness testifies that he, by Leddell’s directions, went the next day to the company’s office, and tendered all the regular and extra premium required by the company, and the company’s officer refused the money, saying the policy had lapsed, by non-payment of premium and extra risk, the day before. This officer then said that if they had promised to carry it over, they had no right to, and could not.

The defense is, that the policy, by its terms, became void for the non-payment of the yearly premium of $156.32, on the 28th of October, 1870, the day it became due; and further, that Starr’s residence south, after July 1,1870, was without the company’s consent, and avoided the policy.

One of the provisions of the policy was, that “if said Starr, without the previous written consent of the company, should * * between the first of July and first of November, visit those parts of the United States which lie south of the southern boundaries of the States of Virginia and Kentucky, this policy shall be null, void and of no effect.” The permit which expired July 1,1870, was not renewed. The plaintiff says, and the referee has .found, that Starr was unable to return north, being too feeble to travel. He did ride to and.from a plantation in a buggy wagon. There is no proof of any effort or intention on his part to return north. The policy, therefore, ceased to have any valid force against the defendants, after July 1, 1870. How, then, was it restored to life ? The plaintiff contends that the defendants waived the forfeiture, and, in effect, made a new agreement, that, if he paid the regular premium and an extra premium of two and a half per cent, they would accept it and continue the policy; and that they further agreed to extend the time of such payment one day after the premiums were due.

The regular yearly premium of $156.32 was tendered at defendants’ office, as before stated. The witness proving this tender, further testified: “ I had not authority to give more than Mr. Leddell gave me ($156.32); I asked if he (the person to whom the tender was made) would keep it good; that is, keep the policy alive until to-morrow, and let the matter stand so that I could see Mr. Leddell; .he said he would.” And Leddell sent the next “day, making full tender, as proven by a witness before quoted, and it was refused.

On the part of the defendants, the several officers of the company and their assistants who were such, and in charge of the office business during the period covered by the testimony, testify that they had no recollection of any such transaction; and some of them positively state, that, as to them, no such promise or tender was made.

Assuming that there is evidence to support the referee’s finding on that point in favor of the plaintiff, the promise was not binding on the defendants; it was a naked promise without consideration. It does not present the single question, whether the defendants' gave an extension of time to pay the premium, but whether the defendants, on such promise, can be held bound to reinstate a policy already void, and which had ceased,, several months previous to be of any force, not because of the non-payment of any premium, but because of the violation of an express condition forbidding a residence in a certain portion of the south, after a certain time of year. Within the case of Smith v. Saratoga Ins. Co., the policy was dead, and the company had the right to insist upon an absolute forfeiture. A new creation was necessary to impart vitality to the policy. The company may waive any condition in its policy inserted for its own benefit, but there must be proof of such waiver, and of intent to reinstate the policy, and of a valid agreement effecting that purpose. A valid agreement is not established in this case.

This is not the case where a party has, impliedly, the company’s . consent to an extension of time to pay premium, and acts thereupon. In such case, the doctrine of forfeiture finds no favor with the court. Nor was it a waiver of prompt payment, within Buckbee v. United States Trust Co.; but it is the taking of a risk, the terms of which were the subject of a new agreement, arising out of the continued residence of the assured in a State or country prohibited by the policy; and, in such case the doctrine of waiver, if applied at all, should be applied with great care.

Here there was no policy in force, on the day plaintiff tendered the ordinary premium; a violation of its provision, commencing immediately after the first of the preceding month of July, had exempted the company from liability. On the day the plaintiff tendered the premium, and the defendants refused to receive it, the plaintiff could not then have compelled defendants to receive any premium, even at an enhanced rate, or to continue the policy in force on any terms. He therefore had no right which he could enforce against them, on the day he tendered the premium, and he acquired no new rights against them, by reason of any of the occurrences of that day; for the company had the right, long previous to, and on that day, and subsequently, to treat the policy- as void, by reason of the violation of a material condition on the part of Charles Starr; and that right was not lost to them from anything that was said or done at their office on the day in question.

Undoubtedly, forfeitures may be waived, and policies revived, but there must be some act from which the underwriter’s consent is to be fairly inferred.

The case is not brought within the rule of waiver, and no valid agreement reviving the policy or continuing the risk, is established.

There are two questions involved in the case: One arises from a positive breach of a condition as to residence, and, when established, it avoids the contract from the very nature of the agreement between the parties; the other arises from the non-payment of money on a specified day. Where money is in question, time is not the essence of the contract; and an acceptance after the day, or a promise made before, to accept payment after the day, will prevent a forfeiture Upon the first proposition, we think the judgment should be reversed, and a new trial had, costs to abide event.

Present — Barnard, P. J., Tappen and Donohue, JJ.

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

       3 Hill, 508.

       18 Barb., 541.

       Shearman v. Niagara Ins. Co., 46 N. Y., 530.

         Stone v. Ellis, 9 Cushing, 95.

       Dumpor’s case, 1 Smith’s Leading Cases,, 105.


author:
      Barnard, P. J.:
      Tappen, J.:

text:
    THE STANDARD OIL COMPANY, Appellant, v. THE TRIUMPH INSURANCE COMPANY, Respondent.

      Agent—power of, to modify contract—implied from power to make—principal bound by mistakes of.

    An agent having authority to make a contract, has implied authority to cancel or modify it.
    A principal is bound by the mistakes of his agent.
    Appeal from a judgment entered in Kings county, against the plaintiff, in an action on a policy of insurance against fire.

      E. H. Benn, for the appellant.

      H. L. Burnett, for the respondent.
   Barnard, P. J.:

This case presents but a single question. Joseph L. Lord, an insurance broker, procured the policy in question of the defendant: The defendant is an Ohio corporation. By the terms of the policy, the company could raise the rate, or cancel the policy. After the policy was issued, the fact of its being issued was communicated to the defendant, and the defendant required a raise of one per cent on the rate of premium, from five to six per cent. Mr. Lord, in behalf of plaintiff, assented to this raise, and promised to bring in the policy, and have the increased rate indorsed. This was not done. The matter so stood from May 31, 1872, until July 25, 1872, when a messenger from Lord’s office brought the policy to the defendant’s agents who issued the same, and directed its cancellation. The policy had indorsed upon it, ret. Co.” (which is found to have meant “cancel the policy” in the business of insurance) by Joseph L. Lord, or by James S. Lord, who was the brother of Joseph L. Lord, and had a general management of his business. The defendant’s agents received the policy, and filed it as canceled. On the thirtieth of July, the property covered by the policy burned, and the plaintiff brings this action upon the policy, claiming that the Lords or their clerks made a mistake in the cancellation of the policy.

The judge has found as conclusion of law, that, if the policy was returned for cancellation by a mistake of plaintiff’s agents, and was canceled by defendant, no action could be maintained on it. We think the conclusion right.

A principal is bound by the acts and representations of his agent, because of the appointment of the agent to do the act or transact the business in and about which the representations were made. The principal warrants against the mistakes of the agent.

Lord obtained the policy from plaintiff, and the defendant knew no one else in the transaction, and had a right to suppose him invested with full power. If he could procure, he could cancel. If he canceled by mistake, the plaintiff must bear the loss occasioned by the mistake. This mistake has altered the position of the defendant,

The judgment should be affirmed, with costs.

Tappen, J.:

The defendant insured the plaintiff in the sum of $5,000, on petroleum, by policy of 30th May, 1872. Thereafter, and before the happening of the fire, the defendant required, as it had a right to, an additional premium; or, in default thereof, that the policy should be canceled. The policy after this came to the hands of defendant’s agents, who had acted for the defendant in making the contract, and in demanding the increased premium, and it was marked as canceled. The fire and loss happened a few days after this event. The plaintiff avers that it was so returned unintentionally and through mistake; and judgment is asked, declaring the cancellation void, that the policy was in force at the time of the fire, and for the sum insured. The court at Special Term dismissed the complaint on the merits, after hearing the testimony on both sides.

The defendant’s general agents were Burlingame & Rankin. One Joseph L. Lord, an insurance broker, had general dealings with these agents. He acted directly for and under the plaintiff’s directions in obtaining for them a line of insurance on their property, including the risk in question. Mr.' Lord and his clerks testify that the policy was marked canceled on Mr. Lord’s books, but he says it was so marked by error or mistake, and without plaintiff’s authority. On the day of the fire, it was in the hands of the defendant’s agents, so marked canceled or returned. The words which indicated its cancellation, were written on the policy, in Mr. Lord’s office by his brother, and in the usual course of their business as insurance brokers, and the policy came to defendant’s agents so marked, about the 24th of July, 1872, a few days before the fire, and remained with them until the fire.

Judge Pbatt, in deciding the case, says: “ The defendants were thrown off their guard, and permitted to act on the assumption that the policy was canceled; and, had this fact not occurred, the defendants might have procured the policy to be underwritten, or taken other measures in respect to the risk or the premium.”

There is some evidence in the case, from which an inference may arise that the plaintiff intended a cancellation because of the demand by defendant for an increased premium.

In every stage of the transaction, the plaintiff acted by Mr. Lord, the insurance broker. He had authority, under his general employment, and by having possession of the policy, to consent to its cancellation, and he or those in his employ did so consent.

The defendant, who had demanded an increased premium, or the return- and cancellation of the policy, had the right to assume that its return, so marked, was in pursuance of such demand. Lord’s agency for the .plaintiff, is not to be questioned simply because his compensation as broker came from the premiums réceived by the defendant. An agent, having authority to make, has implied authority to cancel or modify a contract, and third parties dealing with him, will not be permitted to suffer loss,

The mistake, if any, of the plaintiff’s agent, cannot be permitted to bring loss to the defendant, in a transaction of this character, with all its attendant facts, because it was, in law, as regards' third parties affected ’ thereby, the mistake of the plaintiff, and. the defendant was not conscious of any such mistake, nor was there anything in the course of the business, which tended to create a suspicion of error or mistake in the cancellation, but, on the contrary, the return of the policy to the defendant, and the facts preceding it, entitle the defendant to be relieved from liability. . The judgment should be affirmed, with costs.

Donohue, J., dissented.

Judgment affirmed, with costs. .

       Dunning v. Roberts, 85 Barb., 463.

       Xenos v. Danube and Black Sea Railway Co., 106 Eng. Com. Law (13 C. B. [R S.] ), 835.

       Jeffrey v. Bigelow, 13 Wend., 518; Anderson v. Coonley, 21 id., 279.

       Clark v. Metropolitan Bank, 3 Duer, 241.


text:
    CHARLES HEDGES and others, Plaintiffs, v. GEORGE W. BUNGAY, Jr., Assignee of E. P. BOWEN, Defendant.

      General assignment—assignee undw' — when title to assignor''s property passes to — Bond—§ 3, chap. 348, of 1860 — chap. 600 of 1874.
    An assignee, under a general assignment for the benefit of creditors, does not take title to the assignor’s estate, unless the bond required by section 3, of chapter 348, of the Laws of 1860, is approved and filed.
    Chapter 600, of the Laws of 1874, does not affect this provision of the act of 1860.

      Controversy submitted without action, under section 372 of the Code. The question raised was, whether the omission to obtain the approval by the county judge" of the bond of an assignee under a general assignment for the benefit of creditors, invalidated the assignment.

      Charles H. Knox, for the plaintiffs.
    The strict letter of section 3 of chapter 348 of 1860, is to be adhered to. (Juliand v. Rathbone, 39 N. Y., 369; Hardman v. Bowen, id., 196; Cook v. Kelly, 12 Abb., 35; affirmed, 14 id., 466; People v. Supervisors of New York, 11 id., 114.)

      Henry Arden, for the defendant.
   Tappen, J.:

This is a controversy submitted without action, under section 372 of the Code.

The plaintiffs had judgment, and caused levy to be made on certain property of Bowen, their judgment debtor. Before this levy, Bowen had made a general assignment for the benefit of creditors, to the defendant, under the act of I860, but the bond of the assignee, required by section 3 of that act, to be approved by the county judge, and filed within thirty days, etc., had not been so approved; the reason given is, that the bond was ready, but the judge was absent from the county. The bond was filed without such approval.

The case of Juliand v. Rathbone, governs the question here presented, and controls the case. The assignee did not take title to the assignor’s estate, until the bond was approved and filed, because of the peculiar language of section 3 of the act, which says that, until such security be given, the assignee shall have no power or authority to sell the property, or to convert the same to the purposes of the trust. And the amendment to the act, by chapter 600, Laws of 1874, does not affect this provision. The plaintiffs, by their levy, acquired a lien which was not defeated by the existing assignment, and they should have judgment, on the submitted case, with costs.

■ Present — Barnard, P. J., Tappen and Donohue, JJ.

Judgment for plaintiffs on submitted case, with costs.

       Chap. 348.

       39 N. Y., 369.


text:
    THE PEOPLE ex rel. THE BROOKLYN PARK COMMISSIONERS, Respondents, v. THE CITY OF BROOKLYN and JOHN W. HUNTER, Mayor, Appellants.

      Order of court—Presumption as to regula/rity of term—Objections to validity of assessment—when can be raised.

    The court will not presume an order to have been made at an irregular term. Objections to the validity of an assessment cannot be raised by the mayor of a city, by refusing to sign a warrant for payment of money thereunder, after the city authorities have treated it as valid, and have authorized the levying of a tax to meet it; and the money has been collected and is in the city treasury, and its payment to the proper officers (park commissioners) has been ordered by the legislative branch of the city government, and by the comptroller who has signed the warrant therefor.
    Appeal from an order directing that a peremptory mandamus issue against the defendants, directing the city of Brooklyn and John W. Hunter, mayor thereof, to pay over to the park commissioners (the relators) the amount applicable to .the payment of assessments, under chapter 926 of the Laws of 1871. The opposing affidavits, among other things, stated “ that from the records of the General Term in this judicial"department, it appears that Circuit Courts, Special Terms for the trial of issues, and Special Terms for the hearing of non-enumerated motions, were fixed for the year 1871; but this deponent cannot ascertain, after diligent inquiry, that any Special Term, or any other term or court, was ever fixed or appointed for the third Monday or the fourth Monday of November, 1871, or that any Special Term was adjourned to that time, and that on the published notices of such terms distributed by the officers of this court, no such designation or appointment appears.”

      William G. Be Witt, corporation counsel, for the relators.

      Philip 8. Grooke, for the respondents.
   Tappen, J.:

The legislature passed an act, known as chapter 926 of the Laws-of 1871, entitled “An act to lay out and improve a public highway; in the town of Flatbush, on the easterly side of Prospect Park.”. The act directed the park commissioners to lay out a public highway, 100 feet wide, on the easterly side of Prospect Park, in the town of Flatbush, to be run 2,000 feet northerly along the easterly side of the park, and thence northerly and easterly by such route as the commissioners should deem most direct and eligible.

All the proceedings contemplated by the act have been taken by the commissioners, including notice of an application at a Special Term of the Supreme Court for the appointment of commissioners of estimate, the fixing of a district of assessment as directed by the act, the report of the commissioners of estimate, and the confirmation thereof by the court. An assessment upon the property of the city of Brooklyn is distinctly contemplated by the language of the act, in sections 3 and 7, and the assessment is directed to be levied and collected as a tax upon the city. It has been so collected, the amount being $61,949.50; it is in the city treasury for the purposes directed by the act. The act says it shall be paid to the park commissioners, who shall pay the money to the persons entitled thereto. The assessments on lands either side of the avenue, within a specified space, form a fund, with which the commissioners are to pay awards and expenses, and the expenses of the first improvement of the road. The park commissioners have made demand on the comptroller for the money due from the city, and the comptroller has drawn the usual warrant therefor, which warrant the mayor refuses to countersign, and the proceeding is for a writ of mandamus to compel such signature.

It further appears, that, on the 27th of January, 1874, the common council of the city unanimously passed a resolution directing that said assessment be paid; that the money was then and is now in the city treasury, raised for that special purpose, and that the mayor approved and signed such resolution, on the 27th January, 1874.

With respect to the point raised on behalf of the city, that the appointment of commissioners of estimate was not at a regular Special Term, the fact seems to be otherwise. The Special Term of the Supreme Court for "the county of Kings, commencing the first Monday of November, 1871, continued throughout that month, with the exception of Sundays and holidays, and until the commencement of the next succeeding Special Term, appointed to be held in Kings county, on the first Monday of the following month. The court will not presume an order to have been made at an irregular term.

With respect to the validity of the assessment, the city authorities have treated it as valid, and have authorized, under the act, the levying of a tax to meet it; the money has been collected, and is subject to demand by the park commissioners; its payment to them has been ordered by the legislative branch of the city government, and by the comptroller, who has signed the warrant. .All the objections, therefore, that are now presented, must be deemed to have been waived on behalf of the city; and the rule laid down in The People ex rel. New York and Harlem, Railroad v. The Mayor of New York, is decisive of the case, and of all the questions presented by it.

The order of Special Term, granting peremptory writ of mandamus, should he affirmed, with ten dollars costs.

Present—■ Barnard, P. J., Tapfen and Donohue, JJ.

Order affirmed, with costs.

       People v. Central City Bank, 53 Barb., 413.

       4 N. Y. Supreme Court R. (T. & C.), 366.