text:
    Keturah Willdigg, as Administratrix, etc., Resp’t, v. City of Brooklyn et al., App’lts.

      (Supreme Court, General Term. Second Department,

      Filed July 27, 1894.)

    Municipal cokfokation—Negligence.
    The evidence ivas held to be sufficient to sustain a finding that the intestate’s death was cause by the defective condition of a bridge over an excavation in a sidewalk.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes:

      Albert G. McDonald (H. O. Wood and Henry Yonge, of counsel), for app’lt city of Brooklyn; Ernest Lasche (E. B. Barnum, of counsel), for app’lt Luecke; Kellogg, Rose & Smith (Arthur H. Smith, of counsel), for resp’t.
   Dykman, J.

—While this is a border case, it is yet one in which d.fferent minds would reach diverse conclusions. The facts proven leave the case in some obscurity, but the legitimate inferences which a jury would be permitted to draw from the established facts are sufficient to sustain the verdict. The defendant Luecke, being the owner of premises fronting on Broadway, in the city of Brooklyn, and desirous of improving the same, procured permission from the city of Brooklyn to make an excavation under the sidewalk in front of his lot for the purpose of constructing a vault. After the issuing of thé permit, Luecke removed the sidewalk, made an excavation, and erected over it a temporary bridge, about three feet above the surface and covering the entire width thereof. The bridge was completed on the 18th day of September, 1892. There was testimony which tended to show that the floor of the bridge was loose in some places, and sprung under the feet of passengers; that there was no diagonal railing down the steps from the horizontal railing to the sidewalk; and that the railings on the sides was not strong. At the end of the platform, where the deceased was found, there was a step from the sidewalk, composed of two large blocks about 8 or 10 inches high, and then there was a step, about 20 inches high, to the top pf the platform. One witness said that there was a space of two inches between the ends of the boards and the upper step, and that those boards which ran lengthwise of ■ the bridge gave under the weight of a person passing over them. The deceased man was about 65 years of age, healthy, sober, and industrious. On the night of September 24, 1892, he left Beck’s saloon a little after 12 o’clock at night, and was found about 12.20 or 12.80 at the end of the bridge nearest his home, and furthest from Beck’s. His body was lying parallel with the sidewalk, with his feet about 18 inches from the foot of the platform, and his head under some flagstones which had been piled up on the sidewalk a short distance from the platform. His skull was crushed, and he was unconscious, and remained so until he died, a few days thereafter. The hand rail on the outer or street side of the platform was broken, and a brace from the top of that rail to a cross plank was loose.

This action is brought by the administratrix of the deceased against the city and Luecke, and the plaintiff had a verdict against both, and both defendants have appealed from the judgment entered thereon. The duties and obligations of the landowner and of the city were plainly and correctly stated to the jury by the trial judge. The position of the deceased man when he was found is significant of much. He was at the end of the bridge nearest his home, and furthest from Beck’s saloon. From this, in connection with other established facts, it may be assumed that he was on his way home. His feet were within 18 inches of the first step, his head was driven under some flagstones, and his skulhwas fractured. From that it may be inferred that he fell with great force from an elevated position, presumably from the bridge. Hence it may be inferred that he was crossing the bridge, on his way home. If there was a space of two inches between the ends of the floor boards and the timber which constituted the upper step, and those boards sunk under the feet of persons crossing, it is easily seen that the fall of the deceased may have been caused in that way. Further, if the hand rail gave way, and was broken, it may well be that the deceased man caught hold of the same when he stumbled, to save himself from a fall. All these circumstances, in connection with the testimony of the witness, have an important bearing, both upon the question of the negligence of the defendants, as well as the freedom therefrom of the deceased. In relation to the negligence of the city the case is reasonably plain. It had both actual and constructive notice of the defective condition of the bridge. The exceptions in the case present no errors, and the judgment and order denying the motion for a new trial should be affirrtied, with costs.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    National Spraker Bank of Canajoharie, Resp’t, v. George C. Treadwell Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Corporations—Liability.
    A corporation is liable on a note, though not executed as the by-laws require, if not diverted but received by a bona fide holder, and its proceeds go to the benefit of the corporation.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Edward F. O' Dwyer, for app’lt; William G. Cooke, for resp’t.
   Dykman, J.

—This is an action upon a promissory note, of which the following is a copy:

“ Albany, N. Y, March 10,1893. '
“ Five months after date, we promise to pay to the order of Geo. H. Treadwell five thousand 00 ¡ 100 dollars, at Hotchkiss & Co.’s Banking House, 31-33 Broadway, New York, without defalcation, for value received.
“ $5,000.00 | 100. Geo. O. Treadwell Co.
“Geo. H. Treadwell, President.”

The note was indorsed by George H. Treadwell and Hotchkiss & Co. The" defense consisted of a denial of the making of the note by the company, but that did not signify that the note was not made by the president, but was based upon the theory that the president was destitute of authority to execute the paper. It appeared from the evidence that the note was made and delivered to the plaintiff in renewal of a former note of the same party, which had been discounted by the plaintiff. When, therefore, the paper was produced by the plaintiff upon the trial, and proven, as it was, a case was made which required an answer. The fact that the paper was made by the president of the corporation, and was not signed by the treasurer, in accordance with the- by-laws of the company, constitutes no defense. The paper was not diverted from its original purpose, but went into the hands of a bona fide holder, and the company received benefit of the proceeds. The defense failed, and, as there was no disputed question of fact, the court properly directed a verdict for the plaintiff.

The judgment should be affirmed, with costs.

All concur.


text:
    William T. Reynolds, as Executor, etc., Resp’t, v. Van Buren Denslow et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Trusts—Power.
    Devise to executors in trust to sell, upon the life tenant’s death, the property, divide the proceeds into several equal parts, and distribute them as directed, and if, in the meantime, they deem it best, to convert the estate into cash and pay the income to such life tenant, creates a valid power in trust.
    Appeal from a j udgment in favor of plaintiff.

      Van Buren Denslow (Benj. B. Kenyon, of counsel), for app’lts ; J. DS. Van Cleef (Milton A. Fowler, of counsel), for resp’t.
   Dykman, J.

—The object of this action was to procure a judicial construction of the last will and testament o! Walter F. Denslow, deceased. The questions for determination are presented by the twelfth, thirteenth, and fifteenth clauses of the will, which read as follows: “ Twelfth. I give unto my wife, Susan F. Denslow, the use, during her natural life, of all my real estate, of every kind, of which I die seized of, with full power to collect and use the income and profits therefrom. Thirteenth. At the death of ply wife, or in case she shall not survive me, I give and devise all my estate, both real and personal, and not herein otherwise disposed of, unto my executors herein named, in trust for the following uses and purposes, viz.: To sell and convert the whole thereof into cash; and for that purpose I hereby give and grant unto them full power, and authority to sell the same, and give and deliver good and sufficient deeds and other instruments therefor; and I order and direct that they divide the proceeds of such sales into six equal parts, and that they pay over and deliver unto Ruby Brooks one of such equal sixth parts; and, in case that she shall not survive my wife, then I direct that said one-sixth part be paid over and divided equally among the children of said Ruby Brooks, share and share alike; and, further, that said executors pay over and deliver unto .the said Olive Sykes, wife of said Edmund T. Sykes, two of such equal' sixth parts, and in case she shall not survive my said wife, then that they pay over and divide the same equally among the children of said Olive Sykes who shall survive my wife, share and share alike; and, further, that said executors pay over to my brother Oliver 0. Denslow one of said equal one-sixth parts, and, in case he shall not survive my said wife, that then they pay oyer and divide the said one-sixth part equally -among the children of said Oliver 0. Denslow who shall survive my wife; and, further, that said executors pay over and deliver one of said equal one-sixth parts equally among the children of my brother John W. Denslow who shall! survive my wife, share and share alike; and, further, that said executors pay over and divide one of said equal one-sixth parts equally among the nephews and nieces by blood' of my said wife, Susan F. Denslow, share and share alike.” “ Fifteenth. If, at any time during the lifetime of my wife, my executors hereinafter named shall, in their opinion, deem it best for the interest of my Estate that any or all of the real estate of which I die seized of should be sold, and my wife shall consent to such sale, then and in that case I hereby authorize and empower my executors hereinafter named to sell and convey any and all of my real estate, and-give good and sufficient deeds therefor ; and I hereby direct them to invest the proceeds of such sale or sales upon securities authorized by law, and the rules and practice of the courts, and quarterly, half-yearly, or yearly, as they shall receive the income therefrom, to pay such income over unto my said wile, Susan F. Denslow, during the term of her natural iii'e.”

The cause was tried at a special term of the court, and a judgment rendered in favor of the validity of the will. The defendants have appealed from the judgment.

It is the contention of the appellants that the devise of the real property to the executors in trust is invalid as a trust because it fails to empower the trustees to receive the rents and profits, and cannot be valid and executed as a power in trust because the purpose for which the trust was intended to be created is one for which a valid trust is authorized by subdivision 2 of § 55 of the statute of uses and trusts. The respondent does not contend that the devise of the property to the executors was valid as a trust, but he insists upon its validity as a power, and so the trial court decided. The statute upon which the judgment is based is this: “ A devise of lands to executors or other trustees, to be sold or mortgaged, where the trustees are not also empowered to receive the rents and profits, shall, vest no estate in the trustees; but the trust shall be valid as a power, and the lands shall descend to the heirs, or pass to the devisees of the testator, subject to the execution of the power.’’ 4 Rev. St. (8th Ed.) p. 2438, § 56.

While it is true that all express trusts are abolished, except those enumerated in § 55 of the statute, yet that statute has not stripped the owners of property of the power to impress upon their estates limitations possessing the characteristics of trusts. Trust limitations, if lawful, may be effectuated as powers in trust. Tire statute does not enumerate or define the acts which may be done under a power, as m the case of trusts, and they are practically unlimited. They may be created for any lawful purpose by any language which indicates an intention to bestow them, and to do any act which the grantor might himself lawfully perform. The cases of Blanchard v. Blanchard, 4 Hun, 288, and Belmont v. O'Brien, 12 N. Y. 405, are authority for the foregoing statements. It is easily gathered from the language of § 56, above quoted, that § 58 of the statute was not aimed against the creation of powers. The provision is that, where an express trust shall be created for any purpose not enumerated in the preceding sections, no estate vests, in the trustee,—that is the only effect of such an effort,—but, if the trust authorizes the performance of any act lawful under a power, it shall be valid as a power in trust. It requires no argument to prove that it was perfectly lawful for cthis testator to bestow a power upon his executors to sell his property, divide the proceeds into six equal parts, and distribute them as directed. In the case of Germond v. Jones, 2 Hill, 569, the testator devised and bequeathed all his real and personal property to his brother, in trust to sell and dispose of the same, and out of the proceeds to pay debts and legacies; the residue to belong to the trustee. It was held that the trustee took no estate in the land ; that the will created a power in trust, and upon the death of the testator the fee descended to the heirs. In that case, Judge Bronson, who delivered the opinion of the court, said: “ In most of its features, this appears to me to be a very plain case. The testator has devised all his property, real and personal, to his brother, Smith Hermond, in trust to pay debts and legacies. This was a good express trust, or rather power in trust, under our new Code, in relation to uses, trusts and powers. 1 Rev. St. p. 728, §§ 55, 56, 94. At the common law the estate would have passed to the trustee, but then even his widow would not have been entitled to a dower. A woman is not dowable of a trust estate, but, under our statute, Smith Grermond took' no estate whatever in the land. He had authority to sell, but was not entitled to receive the rents and profits; and in such a case the trust is nothing more than a power, and the land descends to the heir subject to the execution of the power.’’

There have ever been powers in the nature of trusts, and even some of the trusts specified in § 55 are simply powers in trust. They may be created for many useful purposes, and it was wise to leave their purposes unrestricted. We, therefore, concur in the judgment and all its provisions.

Some minor and unimportant points raised by the appellants have received examination, but they present no error.

The judgment should be affirmed, with costs.

All concur.


text:
    In the Matter of the Probate of the Will of Henderson Journeay, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Will—Undue influence.
    Solicitation and importunity do not, unless carried so far as to prevent the free exercise of the testator’s volition, constitute undue influence.
    Appeal from a decree admitting a will to probate.

      Louis S. Phillips, for app’lts; Calvin D. Van Name (Sidney F. Rawson, of counsel), for resp’t Mary L. Engelbrecht; George J. Greenfield, for the executor.
   Dykman, J.

—This is an appeal from the decree of the surrogate of Richmond county admitting to probate the last will and testament and codicií of Henderson Journeay, deceased. There were no objections filed against the will, and the contest arose over the codicil alone. The will was dated November 15, 1887, and the codicil bears date September 17, 1891. Both instruments were executed after the testator became blind, and" he died in December, 1891, in the eighty-third year of his life. The objections against the codicil were that its execution was not the unconstrained act of the testator; that the same was not subscribed and published according to the statute; that the testator was not at that time of sound mind. The testimony on the part of the contestants was directed to the question of undue influence, but it fell far short of proving the destruction of free agency. Unless solicitation and importunity are carried so far as to prevent the free exercise of volition, they do not constitute coercion, or what the law terms undue influence. The proof of the strained relations between the testator and some of the members of his family have but slight weight or influence in the case. The testator was an old man, and quite feeble, both in body and mind, but he was not imbecile, and the whole testimony shows him in the possession of his faculties down to the very last day of his life. We think the testimony was sufficient to justify the decree admitting the will and the codicil to probate, and we find no legal errors. We cannot, however, concur with the surrogate upon the question of costs. While there is always ill feeling, and perhaps improper motives, attending a controversy over a will, yet we •cannot discover sufficient reason for charging the contestant with costs, and we think the decree should be so modified as to make the costs payable out of the estate, and, .so modified, affirmed.

All concur.


text:
    Henry Berau, App’lt, v. Daniel O’Connell, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Appeal—Conflicting evidence.
    A finding, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment in favor of defendant.

      Hector M. Hitchings, for app’lt; Anthony Barrett (Chas. J. Patterson, of counsel), for resp’t.
   Dykman, J.

—This is an action for an accounting. On the 29th day of December, 1886, the plaintiff had an individual contract with the city of Brooklyn for the removal of garbage from the streets of that city; and on that day he and the defendant entered into a copartnership agreement, in writing, by which they agreed to become copartners in business, under the firm name of Henry' Berau, for five years, for the purpose of performing that contract with the city. The parties entered upon the performance of their contract. There was a settlement between them every month, and a final settlement at the termination of the partnership. The claim in this action is that the defendant drew money from the plaintiff from time to time during the continuance of the firm, under the pretense that it was to be paid over to certain parties, and, instead of paying the same over, appropriated it to his own use. The plaintiff testified upon the trial that, about five months after the information of the partnership, he had a conversation with the defendant in relation to the payment of money to parties in Willoughby street, and that they were entitled to 4 per cent of the total sum, amounting to $3,000; that the plaintiff said : “All right, I don’t know nothing about this. You have got to handle that portion, and where does my compensation come from?’’ Then I told him, ‘Who will get that money?’ ‘Well, you will find out later on.’ ’’ Then he said he paid $1,500, and the defendant $1,500, all of which was placed in an envelope, and the defendant made the letters H. B. upon two cards, one of which, with the envelope containing the money, was given to Mr. Wernberg, who was to pay the same over to some one who should produce the duplicate card. Then he said money had to be paid the next year, but does not say that he paid any. He says he paid $458 every month, and $1,200 besides, in addition to the $1,500 before mentioned. His son was called in corroboration, and testified that he drew money from the bank, and that lie saw some money handed over to the defendant. Mr. Wernberg was called as a witness, and testified that he received the envelope said to contain the $3,000 and the card from the plaintiff, but that the defendant was not present at the time of its reception. It does not appear who received the envelope from Wernberg. The defendant, in his testimony, denied all the statements of the plaintiff and his son respecting the conversation in relation to the money to be paid to other parties. He testified that no money was so paid, and that there was no necessity for such payment. r,He denied entirely the testimony of the plaintiff respecting the $3,000 placed in the envelope so far as he was connected therewith, and denied that he was present when the envelope was delivered to Wernberg. At the close of the testimony, the trial judge dismissed the complaint of the plaintiff upon the merits, and the plaintiff has appealed from the judgment entered upon such decision.

The judge refused to find that, upon the statement of the defendant it was necessary to pay 4 per cent, to certain parties in Willoughly street, the plaintiff contributed $1,500 and the defendant $1,500, which was inclosed in a sealed package, which was delivered to Wernberg. He also refused to find that, upon similar statements of the defendant, the plaintiff drew from his private bank account, in 1888, $1,300 ; in 1889, $1,200 ; in 1890, $1,200; in 1891, $1,200,—and paid, the same over to the defendant, to be applied by him to the same purpose. The trial judge also refused to find that, after obtaining the last contract from the city, the defendant falsely stated to the plaintiff that it was necessary to pay to the parties in Willoughby street, out of that contract, the sum of $10,000 per annum, payable monthly. He also refused to find that plaintiff paid over to the defendant his share of said $10,000, in bills $458 each month ; also that, during the continuance of the partnership, there was paid over by the plaintiff to the defendant the total sum of $26,552, to be paid to parties in Willoughby street. It thus appears from the findings that the trial judge did not believe the testimony of the plaintiff, and, if that was untrue, the testimony of the son fell with it. Even when considered by itself alone, the testimony of the plaintiff is very unsatisfactory. It is difficult to believe that he would baud over §1,500 to the defendant upon his simple request, without any explanation, and for no apparent purpose. He had his contract, and there was no conceivable way in which he could expect to be benefited by parting with that money. The same is true of all the sums paid subsequent to the first. He required no influence of any kind, and never requested any. In fact, his whole conduct, as he describes it, is so much at variance with the motives which actuate men in the ordinary affairs of life that it surpasses belief. Then lie is contradicted by Wernberg, who corroborates the defendant, and says he was not present when the plaintiff left the envelope with him. That is a very important point in the case; for, if the defendant was not present at that time, and the statement of the plaintiff upon that point is untrue, it is easy to conclude that the entire story is a fabrication. Moreover, the present claim is entirely dissimilar to the demand made by the plaintiff in his letter to the defendant under date of July 20, 1892. In that letter he says the defendant received various sums, amounting to some $50,000, from the profits of the firm, one-half of which belonged to the plaintiff. In his amended complaint he claims that the money was obtained from him individually by false and fraudulent representations. The change is suspicious. If he had any claim against the defendant, he knew its character as well when he wrote the letter as he did when he made his amended complaint. This is one of the cases in which much deference should be paid to the decision of the trial judge. There was an irreconcilable conflict between the testimony of the plaintiff and his son and that of the defendant. It became necessary to determine which gave out the truth. The trial judge had the opportunity of personal observation of the witnesses, which is a very important fact. Westerlo v. De Witt, 36 N. Y. 345. After a close scrutiny of the evidence and a careful consideration of the case, we reach the same conclusion as the trial judge.

Upon the trial the plaintiff produced some checks of his own, upon which he testified he drew money from his bank to pay to the defendant. They were offered in evidence, and excluded, and their exclusion is assigned as error. The plaintiff was permitted to testify that he drew the money upon the checks to pay to the plaintiff, and that was all that was necessary for him. The checks themselves were not evidence against the defendant. We find no error in the record, and the judgment should be affirmed, with costs.


author: Dykman,

text:
    First National Bank of City of Brooklyn, Resp’t, v. Herman Stuetzer et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Corporations—Contracts—Officers—Liability.
    The holder may ¡reat, as the personal obligation^ of the makers, a note, with the name of a corporation in the margin, signed by persons designated as “ president and secretary,” respectively, if discounted for the payee without inquiry as to whether it was the note of the corporation or of the individual makers.

      Appeal from a judgment entered on a verdict directed in favor of plaintiff.

      Wilson & Wallis (Hamilton Wallis, of counsel), for app’lts; Jackson & Burr (Jos. A. Burr, of counsel), for resp’t.
   Dykman,

—This is an appeal by the defendants, William T. Wallis and George T. Smith, from a judgment entered against them and the other defendants. The action is upon a promissory note in the following form:

On the day of its date, the note was presented by the defendant, Herman Stuetzer, one of the members of the firm to whom it was payable, to the plaintiff, for discount, and it was discounted by the plaintiff, and the proceeds paid to Stuetzer. When the note was discounted, no knowledge had been communicated to the plaintiff respecting the purpose for which the note was given. The discount was made on the faith of Stuetzer, without inquiry or knowledge whether it was the note of the. Wallis Iron Works, or the individual note of the defendants Wallis and Smith, except what appeared upon the face of the note. Under such circumstances, the plaintiff was authorized to treat the note as the personal obligation of the persons whose names are signed to the paper as makers. The plaintiff was a bona fide holder for value, and the case is controlled by the cases of Casco Nat. Bank v. Clark, 139 N. Y. 307; 54 St. Rep. 590, and Merchants' Nat. Bank v. Clark, 139 N. Y. 314; 54 St. Rep. 593. The judgment should be affirmed, with costs.

All concur.


text:
    Solomon Newdoll, as Administrator, etc., App’lt, v. Julia Young et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Negligence—Contributory.
    The owner of land, on which an excavation has been made, is not liable for the death of a child while playing therein, where its parents knew the danger and had forbidden it from going on the premises.
    Appeal from a judgment dismissing the complaint as to each defendant.

      Coley & Powell, for app’lt; Horace Graves, for resp’t Young; William S. Cogswell, for resp’t Thatcher.
   Dykman, J.

-—This is an action for negligence. The charge in the complaint against the defendant Julia Young is that she carelessly maintained a sandpit or excavation upon her land, and permitted various persons to take and carry away sand therefrom, and allowed the sand to be taken from an overhanging bank without support, without fencing or guarding the same in any way. The charge against the defendant Thatcher is that he carelessly excavated underneath a portion 'of the sandpit, and' left it open and exposed. It is then stated that the child of the plaintiff, under seven years of age, entered the excavation to play in the sand, and was killed by the falling in of the overhanging bank. The complaint was dismissed upon the trial, and the plaintiff has appealed from the judgment of dismission.

It was essential to the maintenance of the action that the plaintiff should-establish the freedom of his intestate from negligence, which contributed to the unfortunate result, if the deceased was sui juris. If he was non sui juris, then the same proof was requisite in relation to his parents, and the burden also rested upon the plaintiff to prove the violation of some duty by the defendants which they owed to the deceased. The facts relevant to the first two questions are these: The deceased boy was over six years of age. He went voluntarily upon the premises, without inducement or invitation from the defendants, and etitered the excavation to play in the sand. The excavation was deep and large, open and visible, and was overhung by a bank of earth. The dangerous character of the place was evident and apparent. The parents of the child both had knowledge of the existence of the dangerous opening in the earth, and had warned their child'of the dangerous character of the place. Nevertheless, the child went directly into the pit, and commenced to play in the sand under the overhanging bank, and was killed as a consequence. We think the facts make a plain case of contributory negligence against the child or the plaintiff, or both. Respecting the negligence of the defendant Young, assuming the lot in question to belong to her, it is to be said that she had the legal right to use the land according to her wish, and leave it as her interest or her convenience might dictate. The record discloses no circumstance which created any duty on her part to keep the premises in a safe condition. No duty was imposed upon her to protect the excavation. It is true the public had been permitted to cross th.e lot, but it was a case of mere permission, and the excavation was old and well known to the deceased and the plaintiff. As regards the defendant Thatcher, there is not the slightest ground for liability. He neither made the excavation, nor controlled it in any way. All he did was to take sand from the pit, as many others had done before him.

Our conclusion is that the complaint was properly dismissed, and that the judgment should be affirmed, with costs.


text:
    Milton T. Woolley, Resp’t, v. Sarah L. Loew, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Brokers—Commissions.
    A broker is entitled to commissions, though the sale was made by the owner after negotiations begun by the broker had terminated unsuccessfully, unless the owner terminated them in good faith.

      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      Cannon & Atwater (Henry G. Atwater, and A. B. Cruikshank, of counsel), for app’lt; W. T. Birdsall, for resp’t.
   Dykman, J.

—This is an action by a real estate broker for the recovery of his commissions for the exchange of real property. It is alleged in the complaint, and admitted by the answer, that the plaintiff was employed as broker by the defendant to sell or exchange her real property in Rockland county. The complaint alleges, further, that the plaintiff produced Edward Cunningham to the plaintiff; that he was willing to exchange property with the defendant for her Rockland county property; that the defendant accepted one of the offers of the customer _ so produced by the plaintiff, and made a contract with him for the exchange of their property, which was consummated. The answer admits that the defendant exchanged her property with Cunningham, but denies that such exchange was procured by the plaintiff. It appeared upon the trial that, after much negotiation between the plaintiff and Cunningham, the defendant made the final contract with Cunningham, and that the plaintiff was not consulted respecting its consummation. It was the claim of the plaintiff upon the trial that, after he had started the negotiation with Cunningham, the defendant took up the negotiations, and completed the exchange of the property herself, for tlje purpose of avoiding the payment of commissions to the plaintiff; that her conduct in that respect was in bad faith, and designed to defraud the plaintiff. That position raised the important and decisive question in the case, and upon that point the trial judge charged the jury as follows : “ The owner may, if the negotiation is fairly terminated, resume negotiations with the customer, and not be liable to the broker; but at the same time, if the owner of a piece of property puts it in the hands of a broker, and the broker starts the negotiation, the owner cannot end it in bad faith, and cannot cast the broker aside and carry on the negotiation to completion on his own account, and then claim that he is not liable to the broker for commission. So the question in this case, which is for you to determine, is just this, was this plaintiff either the efficient cause or agent in producing this contract of sale between the defendant and Cunningham, and did this defendant dishonestly cast the plaintiff out of the negotiation, and go on and complete the transaction himself, or through another broker? If you find in favor of the plaintiff on that question, he is entitled to his commission ; but if he was not the efficient cause, and if the negotiation was not dishonestly terminated, and the plaintiff turned out, then he is not entitled to his commission.”

The charge thus presented the question fully and fairly, and the jury found a verdict in favor of the plaintiff for $125. We must, therefore, assume that the question of fact involved was solved in the plaintiff’s favor, and the verdict is sustained by the testimony and the circumstances developed upon the trial.

The judgment and order denying the motion for a new trial should be affirmed, with costs.


text:
    Isaac O. Woodruff et al., as Executors, etc., Resp’ts, v. Alfred T. Ackert, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Mortgage—Foreclosure—Setoff.
    In an action of foreclosure, set-off in favor of the mortgagor against the deceased mortgagee is not established where, according to the latter’s testimony, such claim existed at the time the mortgage was executed.
    Appeal from a judgment in favor of plaintiffs.

      George Esselstyn (H. M. Taylor, of counsel), for app’lt; Alfred L. Manierre (William Fullerton, of counsel), for resp’ts.
   Dykman,

—This is an action to foreclose a mortgage, and the defense was a counterclaim for professional services by the defendant, who is a lawyer, for the testator of the plaintiffs. The defense was disallowed by the trial judge, and the defendant has appealed from the judgment entered against him. The amount of the claim now made by the defendant is much more than sufficient to extinguish the mortgage, which was made to secure the payment of $1,500. Moreover, according to the present position of the defendant, the testator of the plaintiffs owed him $1,500, and more, of which he could have demanded payment at the time when he borrowed the money; but that, instead of doing so, he applied for a loan for that amount, and executed a mortgage upon his property to secure its payment. Such a transaction is so inconsistent with the methods of men of affairs, accustomed to the transaction of business, that it surpasses belief. It is inconceivable that this defendant, who was a lawyer, would apply to the plaintiffs’ testator for the favor of a loan of $1,500, when he could have demanded it as a payment, as a matter of right. The first charge of the defendant is under date of March, 1869, and the testator of the plaintiffs died in December, 1892, more than thirteen years after the first date; so that the defendant allowed the statute of limitations to run twice over against some portion of his claim, without any effort to collect the same. All the facts and circumstances of the case tend to confirm the conclusion of the trial judge that the services of the defendant .were rendered without the expectation of pecuniary reward.

The judgment must be affirmed, with costs.

All concur.


text:
    Jewelers' League of the City of New York, Pl’ff, v. Ellen B. De Forest, App’lt, and Anna B. De Forest, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Assignment—Duress.
    A threat by the widow that she will take decedent’s body to a certain place for burial unless his mother, who has executed an assignment of a policy on his life, acknowledges such execution, is not such duress as will vitiate the assignment.

      3. Same—Ratification.
    An agreement by the beneficiary of a life insurance policy with the assignee, in consideration of a certain part of the proceeds, to aid in its collection, is a ratification of the assignment.
    Appeal from a judgment in favor of one against the other defendant.

      Rochfort & Stayton, for app’lt; Charles N. Judson and W. B. Hale, for resp’t.
   Dykman, J.

—This is an action of interpleader brought by a mutual benefit association to determine conflicting claims to the sum of $5,000, the amount due upon a certificate of membership of one Charles S. De Forest, who died in December, 1892. In his application for membership, he designated his mother, Ellen B. De Forest, as the beneficiary to whom the money was to be paid., Subsequently, he so far modified that designation as to provide that his wife, Anna B. De Forest, should receive the money, if his mother predeceased him. The mother and wife are both defendants in this action, and each claims the moneys, the mother as the designated beneficiary, and the wife as the assignee of the fund under an assignment made by the mother. The mother now repudiates the transfer, and alleges that it was obtained from her by duress and undue influence. The assignment of the money was executed at St. Louis, December 25,1892, and down to that time only solicitation had been employed for its procurement. After the execution the parties started for the east with the body of the deceased, and, upon reaching Albany, the wife, and a friend who accompanied her, desired the mother to acknowledge the execution of the assignment. Upon her hesitating to do so, the wife threatened to take the body back to St. Louis for interment if she did not do so, and thereupon the mother made the acknowledgment. That was December 27, 1892. The party then proceeded to Birmingham, in Connecticut, where the body was buried December 28, 1892, as we gather the dates. The next day the mother executed a power of attorney to the friend of the wife, authorizing the pursuit of the proper measures for the collection of the money. On the 30th day of December, 1892, an agreement was made between them that the mother should receive $500 of the fund, and the wife the rest, and the mother then executed an instrument in writing, by which, in consideration of that sum, she agreed to facilitate the wife in the collection of the money.

The nullification of instruments obtained by fraud, duress, or undue influence is a well-recognized head of equity jurisprudence, and the civil law also sets aside contracts procured by fear or undue influence. Dorn. Civ. Law, bk. 1, tit. 18, § 2, arts. 1-10. Judge Story says relief is administered, in such cases, to a party, “ when he does an act or makes a contract when he is under the influence of extreme terror, or apprehension short of duress, for in cases of this sort he has no free will, but stands in vinculis." 1 Story Eq. Jur., § 239. We do not find that the mother in this case was at any time subjected to such influence as would overcome her free agency. She was never terrorized in any way, and she never was intimidated by the apprehension of any serious evil. There was no constraint over her person, and she was not placed in dread of any personal injury. At St. Louis, where the first paper was signed, there was no threat of any kind made to her. At Albany the only threat was to take the body of the dead son back to St. Louis. If that operated upon her affections, it could not have operated upon her fears or constrained lier will. She was neither placed under apprehension of injury nor subjected to intimidation, and that seems to be essential, within all the authorities. Independent of the foregoing, the agreement of December 30, 1892, seems to have been entirely consensual and voluntary, and must be deemed a ratification of the former assignment, with the modification which secured $500 of the fund for the mother. The leading case on thé subject in this state is Eadie v. Slimmon, 26 N. Y. 9, and the latest case is Adams v. Irving Nat. Bank, 116 N. Y. 606 ; 27 St. Rep. 733. Both of those cases manifest the severity with which courts of equity scrutinize transom tians in which covenants or written instruments have been obtained by threats or undue influence, but the facts in this case do not bring it within the scope of the decision in either of the cases. The judgment should be affirmed, with costs.

All concur.


text:
    Carrie S. Lounsbury, as Administratrix, etc., Resp’t, v. Wilson P. Foss, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Nuisance—Keeping explosives.
    Whether keeping explosives on one’s own premises is a nuisance, depends upon circumstances, and is a question for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Irving Brown, for app’lt; Foster & Ackley (Roger Foster, of counsel), for resp’t.
   Dykman, J.

—This action is for the recovery of damages result ing from the death of the plaintiff’s intestate, which was caused by the explosion of the dynamite works of the defendant. The action is based upon negligence, but there are questions involved beyond those which ordinarily relate to actions of that character. The defendant was engaged in the manufacture of explosives near Snedeker’s Landing, in Rockland county, near to the Hudson revir; and in the month of December, 1891, there was an explosion at the defendant’s factory, by which the plaintiff’s intestate was instantly killed. The defendant was the lessee of the land upon which his works were erected, and he claimed that the lease covered the land under water of the river in his front. Of that fact, however, there was no positive proof. It-was the claim of the plaintiff upon the trial that her intestate had permission from the agent of the defendant to land upon the beach of the river. In relation to this point there was also some dispute. The case belongs to that class of cases where actions are brought for damages resulting from the prosecution of a legitimate business on the premises of the owner, but which are dangerous to the persons of others who may be passing in their vicinity, or to the property of others in their neighborhood. Hay v. Cohoes Co., 2 N. Y. 159, and Tremain v. Cohoes Co., id. 163, and Myers v. Malcolm, 6 Hill, 292, are examples of that class. This action is to be controlled by the principles laid down in the case of Heeg v. Licht, 80 N. Y. 579. It was there decided that the keeping of gunpowder or other explosive materials in a place or under circumstances where it will be liable, in case of an explosion, to injure the dwelling houses or the persons of those residing in close proximity, may constitute a private nuisance, for which the person so keeping them is liable to respond in damages in case of injury resulting therefrom, and that without regard entirely to the question whether he was chargeable with carelessness or negligence. The keeping of such materials- does not, however, necessarily constitute a nuisance per se ; that depends upon the locality, the quantity, and the surrounding 'circumstances. The consequential result of the authorities is that each case like this must be left to the jury, under proper instructions from the court. That course was pursued in this case, and while the parties upon the trial put the question of negligence prominently forward, and the trial judge did the same in his charge, yet. he did charge that no person had a right to carry on a business which was imminently dangerous to the community, and to persons who have occasion to pass in that vicinity, which is liable to cause an explosion and injury to people; that the maintenance of such a business is a nuisance per se, but that it depends upon the place where it is carried on, and the manner in which it is prosecuted. The last clause embodies the correct rule, and, if either party desired it to be made more full and specific, a request to that effect should have been made to the trial judge. The verdict and judgment are in accordance with settled principle, and .the judgment and order denying a motion for a new trial should be affirmed, with costs.

All concur.


text:
    Moses Hawkins, Resp’t, v. John G. Beakes et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Mobtgages—Chattel—What subject to.
    Lessee does not have mortgagable interest in crops raised on leased land, where the title to them remains in the lessor until payment of certain claims against the lessee, before they are paid.
    Appeal from a judgment in favor of plaintiff.

      John L. Wiggins, for app’lts ; Bacon & Merritt, for resp’t.
   Dykman, J.

—This is an action for the recovery of 60 tons of hay. The cause was tried before a judge without a jury, and a judgment was rendered in favor of the plaintiff against the defendants. The plaintiff was the owner of a farm, which for several years had been in the possession o£ John McCarthy under a lease from the owner. In January, 1893, the plaintiff took possession of all the personal property on the farm belonging to McCarthy under chattel mortgages and claims which he held against him foils,629. On the 17th day of January, 1893, McCarthy sold and transferred his equity in all the property to the plaintiff. Subsequently, on the 21st day of January, 1893, by an agreement in writing, the plaintiff agreed to give McCarthy an option to repurchase the said property in two years. All the hay cut and the crops raised upon the said farm were, by the said agreement, to be and remain the property of the plaintiff. The hay, for the recovery of which this action was brought, was raised upon the farm in the summer of 1893. In November, 1892, John G. Beakes recovered, a judgment against McCarthy, and, upon an execution issued thereon against the property of McCarthy, the sheriff levied upon the hay in question. The hay was taken into the possession of the sheriff, and advertised for sale under the execution. Thereupon, this action was commenced, the hay was replevied by. the sheriff, and delivered to the plaintiff.

It is the theory of the defendants, upon which the defense to the action is based, that the agreement of January '21, 1893, is a chattel mortgage upon the growing crops, and therefore invalid and ineffectual, as between third parties, because it was not filed as a chattel mortgage. -That position, however, is faulty, because the title to the property was already in the plaintiff when that agreement was executed, and was reserved by the plaintiff by the terms of the instrument. Such title could only be divested by the payment of the amount stipulated to be paid by the instrument. The agreement amounted to a stipulation that the products of the soil of the plaintiff’s own land, when they came into existence, should be and remain his property until the fulfillment of the agreement by McCarthy, and that he never completely performed. There was money due from him to the plaintiff when this action was commenced. The following cases are authorities in favor of the plaintiff, and fully justify the judgment in his favor : Andrew v. Newcomb, 32 N. Y. 417 ; Van Hoozer v. Corey, 34 Barb. 9 ; Schroeppel v. Dingman, 17 Wkly. Dig. 257; Booher v. Stewart, 75 Hun, 215; 58 St. Rep. 666.

The judgment should be affirmed, with costs.


author: Mayham, P. J.

text:
    August Schmidt, Resp’t, v. John Brown et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    1. New trial—Judge’s own motion.
    The trial judge may. on his own motion set aside a verdict on the ground that it is against the weight of evidence.
    S. Same—Against evidence.
    The court may, on the trial, set aside a verdict, where it is against the evidence, or so manifestly against the weight of evidence that it is apparent that the jury either misapprehended the same, or were influenced by passion or prejudice in rendering tlieiv verdict.

      Appeal from an order made by the trial justice, of his own motion, on the minutes, setting aside a verdict in favor of defendant, and ordering a new trial upon the minutes, on the ground that the verdict was against the weight of evidence.

      Frank H. Osborn, for app’lts; D. H. Daley, for resp’t.
   Mayham, P. J.

—This action was prosecuted by the plaintiff to recover damages of the defendants for an alleged breach of contract by the defendants, in the furnishing of materials and the construction of a dwelling house, the plaintiff claiming in his complaint to recover $1,000. The answer alleged a substantial performance of the contract, except in some slight particulars, the completion of which could be made at an expense of a small sum, and also alleged that the time of the completion fixed in the contract was enlarged by agreement between the parties. The answer also set up a counterclaim for items advanced and delivered to the plaintiff by the defendants. The reply denied the counterclaim. The jury found for the defendants, and the trial judge set aside the verdict, and granted a new trial, on the minutes.

We have examined the evidence, and think the learned trial judge violated no rule of law in setting aside the verdict. By § 999 of the Code of Civil Procedure, the justice presiding at a trial by a jury may, in his discretion, entertain a motion to set aside a verdict upon the minutes. In this case the justice exercised the discretion without an actual motion, but in the presence of the attorneys for the parties. There seems to be nothing to prevent a justice from making the order on his own motion, and the fact that the order was made on the motion of the justice does not seem to be a ground for the reversal of his order. There was some evidence in the case tending to establish a failure on the part of the defendants to complete this job according to the contract, which does not seem to be expressly disputed by the evidence of the defendants upon the trial. While, upon many points in controversy, there is a conflict of evidence, on which, if standing alone in the case, the judge would not be at liberty to interfere with the verdict of the jury, Morss v. Sherrill, 63 Barb. 21, yet there seems to be some undisputed testimony upon which the plaintiff would seem to be entitled to recover. When there is sufficient legal evidence in a case to sustain the determination of the trial judge in setting aside the verdict of a jury, and the question turns upon the apparent weight of evidence, the trial judge, having seen and heard the witnesses, is better qualified to determine where the truth lies than the court on appeal is, from the printed record only. The rule seems originally to be that the trial court could not set aside a verdict where there was a scintilla of evidence to sustain it. But the rule has been modified by the recent decisions so that in any case where, from the undisputed evidence, the court may properly direct a verdict for the plaintiff, or where there is such an entire failure of evidence on his part that the court may nonsuit the plaintiff, it may set aside a verdict where he is not entitled to it, tested by the above rule. In other words, where the verdict is against the evidence, or so manifestly against the weight of evidence that it is apparent that the jury either misapprehended the same, or were influenced by passion or prejudice in rendering their verdict, the court on the trial may set it aside. In Baulec v. N. Y. & H. Railroad Co., 59 N. Y. 366, Allen, J., says: “ It is not enough to authorize the submission of a question, as one of fact, to the jury, that there is ‘some evidence.’ A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendant, would not justify the judge in leaving the case to the jury.”

In Dwight v. Germania L. Ins. Co., 103 N. Y. 359 ; 3 St. Rep. 115, Ruger, C. J., quotes with approbation, and adopts, the rule laid down by the supreme court of the United States in Improvement Co. v. Munson, 14 Wall. 442, as follows : “Nor are judges any longer required to submit a question to the jury merely because some evidence has been introduced by a party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict for that party. Formerly, it was held that, if there was what was called a ‘ scintilla of evidence ’ in support of the case, the judge was bound to leave it to the jury; but recent decisions of high authority have established a more reasonable rule,—that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus rests.”

The learned chief judge also cites, to the same effect, Pleasants v. Fant, 22 Wall. 120; Commissioners v. Clark, 94 U. S. 284; Griggs v. Houston, 104 U. S. 553 ; and other cases.

We think, within the rule as above stated, the learned trial judge properly exercised the discretion vested in him by § 999 of the Code of Civil Procedure, in entertaining a motion on the minutes for a new trial, and that there was no error committed by him in his disposition of the same.

The costs were not awarded by the judge on setting aside the verdict and granting a new trial, and no question was raised by the counsel for either party upon that subject. We do not see how error can be predicted on that question here. The order must be affirmed, with $10 costs and printing disbursements.

All concur.


author: Andrews, J.

text:
    Colberg, Pl’ff, v. Emerson, Def’t.

      (Supreme Court, New York Special Term,

      Filed March 5, 1894.)

    Sheriffs—Poundage.
    Where a copy of a writ of attachment and a notice of a levy are served upon the keeper of animals belonging to defendant and then in the hands of the collector of customs, the sheriff is, on a discharge of the writ, entitled to poundage on the value of the property, though he has never had actual possession.
    Application by sheriff for taxation of poundage and keeper’s Í66S.

      Burritt S. Stone and W. E. Stilling, for motion; John A. Deady and Goodrich, Deady & Goodrich, opposed.
   Andrews, J.

—The Code of Civil Procedure (§ 649) provides that an attachment shall be levied upon personal property, capable of manual delivery, by taking the same into the sheriff’s actual custody, and upon other personal property by leaving a certified copy of the warrant and a notice showing the property attached with the person holding the same. The former Code of Procedure contained similar provisions, and the expression “ property incapable of manual delivery ” has been the subject of judicial interpretation. In Clarke v. Goodridge, 41 N. Y. 214, the judge delivering the opinion of the court said: “I agree with the superior court in holding that the expression, 1 property incapable of manual delivery to the sheriff,’ is applicable to property which not only in its nature is thus incapable of manual delivery, but also to that which has become so from its peculiar position, and where- it is under pledge or consignment, with advances made upon the property.”

In Warner v. Fourth Nat. Bank, 115 N. Y. 251; 26 St. Rep. 213, the court held that an attachment would lie against securities in the hands of a party, where the party holding said securities had a lien upon the same, and the sheriff could not take it into actual custody. In Colman v. Orser, 5 Duer, 250, an attachment had been issued against goods which were in the custom house. In that case it was said by the court that: “ The alleged service, which is relied on as to a valid levy, was made in August, 1853; and as the goods were then in the custom house, and the duties unpaid, the counsel for the defendant was right in saying that the sheriff could not require a manual delivery of the goods; but according to the decision of this court in Brownell v. Carnley, 3 Duer, 9, could only execute the attachment under the mode prescribed by § 235 of the Code.”

In the case at bar an attachment was issued on January 31, 1894, by this court, and the affidavits submitted on the part of the sheriff state that he levied upon the animals therein referred to, on the steamer Tauric, lying at pier 38, North river. Such affidavits also state that after the goods had been removed to 600 Greenwich street, in this city, the deputy sheriff having the attachment served upon the person in whose care and custody the said property was placed for and on behalf of the United States government a certified copy of said warrant of attachment, and a notice showing the property attached. The notice in question is a general one, and does not specify any particular property, but it was held in O'Brien v. Merchants' & T. F. Ins. Co., 56 N. Y. 55, that such a general notice is sufficient. In view of the interpretation which, as above stated, has been placed by the courts upon the expression, “ property incapable of manual delivery,” I think that in the case at bar a valid levy was made under the warrant of attachment. This view seems also to have been taken by the attorneys for the defendant, for on the 8th of February an order was obtained by them, discharging the attachment. This order is as follows : “ A warrant of attachment having been duly granted herein, on the 31st day of January, 1894, and issued tto the sheriff of the county of Mew York, and the defendant having applied for a discharge of said attachment, and having given the undertaking required by § 688 of the Code, and the same having been duly approved and filed: Mow, on motion of Goodrich, Deady & Goodrich, attorneys for the defendant, it is ordered that the warrant of attachment granted herein, January 31, 1894, by Mr. Justice Lawrence, be, and the same is hereby, discharged.” This order does not recite that a levy had been made, but it is difficult to understand why the attorneys for the defendant thought it necessary to obtain an order discharging the attachment if no levy had been made. Under these circumstances, I think -that the sheriff is entitled to poundage. Section 2 of chapter 418 of the Laws of 1892 provides that where the warrant of attachment is vacated, set aside or discharged by order of the court, the sheriff shall receive poundage upon the value of the property attached, not exceeding the amount specified in the warrant. I understand that it is conceded that the value of the property attached largely exceeded the amount specified in the warrant, which was $10,000. The sheriff will therefore be allowed $275 for his poundage. In view of the fact that the property was not actually taken into the custody of the sheriff, the claim for keepers’ fees has, I understand, been withdrawn.


text:
    John Freston, App’lt, v. Lawrence Cement Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.)

    Contract—Construction.
    An agreement by one to quarry, burn and deliver cement requires him to furnish the necessary fuel to burn such cement.
    Appeal from a judgment dismissing the complaint.

      William Lounsbery, for app’lt; Bernard & Van Wagonen, for resp’t.
   Mayham, P. J.

—There is no disputed question of fact in this case. The whole "case turns upon the construction to be given to the contract under which the cement was furnished by the plaintiff. The trial judge held that, as the plaintiff undertook to quarry, burn, and deliver the cement at the dock, he was by the terms of the contract required to do, at his own expense, all that was necessary to accomplish that purpose, and that, as it required wood and coal to prepare the cement, be was required, at his own expense, to furnish the same. 0 His monthly deliveries of cement were therefore properly charged in the receipts with the coal received of the defendant, and the considerations for the receipt were not open to examination. We think his interpretation of the contract was correct, and that he committed no error on. the trial for which the judgment should be reversed. Mo opinion seems to be required. The judgment must be affirmed, with costs. All concur.


author: Lawrence, J.

text:
    Haas, Pl’ff, v. Swick et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed February 5, 1894.)

    Attachment—Claims by third person—Bond.
    The filing of an undertaking by an attachment plaintiff, within two days after the sheriff’s jury find for claimant, is a compliance with § 658 of Code.
    Claim by third persons to property taken under an attachment.

      S. B. Stiles, for pl’ff; Campbell & Murphy (James Murphy, of counsel), for claimants.
   Lawrence, J.

—In this case there are two motions. One is by third party claimants, claiming the delivery to them of certain property levied upon by the sheriff under and by virtue of a warrant of attachment issued in this action, on the grounds that a sheriff’s jury has found the title to the goods claimed by them to be in the claimants, and on the further ground that no bond or undertaking of indemnity has been given to the sheriff. The second motion is made by the plaintiff to compel the sheriff to accept the undertaking which he claims has been given by' him, and to file the same in accordance with the statute. The proper disposition of these motions involves a construction of § 658 of the Code of Civil Procedure, as amended by the Laws of 1888. That section provides, in substance, that if, by their inquisition, the jury find the property of the goods or effects to have been in the claimant at the time of the levy, the sheriff must forthwith deliver them to him or his agent, unless the plaintiff gives an undertaking, with sufficient sureties, to indemnify the sheriff for the detention thereof. The section also provides that, if the undertaking is given, the sheriff must detain the goods or effects as the property of the defendant; and in the county of Hew York, where an undertaking is given to indemnify the sheriff, lie must, within two days after the giving of the said undertaking, cause the same to be filed in the office of the court out of which the attachment was issued, and serve upon the claimant or his agent, and the attaching creditor or the attorney whose name is subscribed to the warrant of attachment, a copy of the said undertaking, with a notice of the justification of the sureties thereon. It is then provided that the justification must take place before a judge of the court out of which the attachment was issued, at a time to be specified in the notice, which must be not less than two nor more than five days after serving the said notice. The remainder of this section provides as to the procedure on said examination, and it is not necessary to be recited for the purpose of disposing of these motions.

It is conceded in this case that the sheriff’s jury found the property levied upon to be in the claimants on the Í5th of January, 1894, and it appears by the plaintiff’s affidavits that a bond of indemnity was furnished to the sheriff by the plaintiff on the 17th of January, 1894, with two sureties, each making affidavit tnat he was worth $60,000 over and above all his liabilities; and, as the property levied upon is shown by the affidavit on behalf of the plaintiff to have been worth $14,500 in all, it is claimed by him that the bond furnished good and ample security to the sheriff for all damages that he might sustain by reason of the detention of the goods, and that it was the sheriff's duty, within two days thereafter, to cause the same to be filed, and to have given to the claimant the notice of justification required by § 658 of the Code. It will be observed that the section under consideration, if the property is found in the claimant, provides that the sheriff must forthwith deliver the goods to the claimant, unless the plaintiff gives an undertaking, etc. The word “forthwith" does not necessarily mean at the very instant of the rendition of the verdict of the sheriff’s jury. It means within a reasonable time; without unreasonable delay; with due diligence, under the circumstances of the case. • In New York Cent. Ins. Co. v. National Protection Ins. Co., 20 Barb. 468, where the policy required notice of loss to be given forthwith, and the insured knew of the loss on the 18th, and sent notice to the insurers by mail on the 23d, the notice was held to be a sufficient compliance with the condition of "the policy. See, to the same effect, Inman v. Western F. Ins. Co., 12 Wend. 452, and particularly Bennett v. Lycoming C. M. Ins. Co., 67 N. Y. 274. The bond having been given in this case within48 hours óf the rendition of the verdict of the sheriff’s jury, I think that the requirements of the Code were satisfied, and that it then became the duty of the sheriff to file the same, and to give notice of justification. I shall therefore direct the filing of the bond, and that notice of justification of the sureties be given as required by § 658 of the Code of Civil Procedure. Settle order on notice.


author: Hatch, J.

text:
    Louis W. Gay, Pl’ff, v. Earl D. Haskins, Def’t.

      (Buffalo Superior Court, Equity Term,

      Filed May, 1894.)

    Contract—Building—Architect’s certificate.
    Under a provision in the contract to such effect, the final certificate of the architect that the work was completed to his satisfaction, is conclusive, in the absence of fraud, mistake or collusion between the architect and the contractors.
    Action to foreclose a mechanic’s lien.

      Whitcher, Sawyer, Smith & Fybush, for pl’ff; William L. Jones, for def’t.
   Hatch, J.

—The parties to this action entered into a written contract whereby plaintiff was to furnish and place in the house of the defendant a hot-water heating apparatus, according to certain plans and specifications. The contract contains 16 articles, by the first of which it is provided that plaintiff shall well and sufficiently perform and finish the work, under the direction and to the satisfaction of the architect, acting ás agent of the defendant, agreeably to the drawings and specifications made by the architect. By the second, if any dispute arises respecting the true meaning of the drawings or specifications, the architect’s decision thereon is made final and conclusive. By the third, if any alteration in the work was made and the parties could not agree upon valuation, the matter was to be determined by three arbitrators, one chosen by each party, and these parties to choose a third, no person personally connected with the work to be chosen. Other provisions in the articles, relating to delays, failure to furnish materials, and matters relating thereto, the architect was to determine, with the right of appeal in some cases to the arbitrators provided for in article 3. Payment of the contract price was to be made in installments upon the architect’s certificate as certain portions of the work were completed. The thirteenth article provided : “It being understood that the final payment shall be made within 30 days after this contract is completely finished : provided, that in each of the said ,cases, the architect shall certify in writing that all the work upon the performance of which the payment is to become due has been done to his satisfaction.” And, by the fourteenth, “it is further mutually agreed between the parties hereto that no certificate given or payment made under this contract, except the'final certificate or final payment shall be conclusive evidence of the performance of this contract, either wholly or in part.” It is apparent from this contract that the parties have chosen to make the architect the arbiter, except in certain specified instances, of which no complaint is made, and to make his certificate of performance a condition precedent to the right to demand pay, and conclusive upon the defendant, in the absence of fraud or mistake Wyckoff v. Meyers, 44 N. Y. 143 ; Whiteman v. Mayor, etc., 21 Hun, 117; Pucci v. Barney, 1 Misc. Rep. 84; 48 St. Rep. 30. The contract price was $1,045, payable in three installments,—two of $470, and one of $105. The last payment of $470 was only to be made when the .entire apparatus was set up and completed, and the $105 30 days later. Plaintiff gave evidence tending to show completion of the contract, and obtained and produced upon the trial the architect’s certificate that the work was completed to his satisfaction. This certificate, within the meaning of the contract, was final, as by its terms appears everything necessary to entitle plaintiff to full payment, and, although it was given before the final payment fell due, yet it certified to all the facts upon which the final payment depended. It was, therefore, the certificate contemplated by the contract Defendant gave evidence tending to show that there was a failure to perform the contract in essential particulars But his evidence did not tend to - establish that there was any collusion, fraud, or mistake upon the part of the architect in giving the certificate, or between him and plaintiff, nor is such matter alleged in his answer by way of defense. The case is, therefore, one where the parties have stipulated by their contract for an arbitrator, and his action, not being shown to be based upon fraud or mistake, is, within the authorities cited, conclusive.

Plaintiff therefore becomes entitled to judgment

Ordered accordingly.


author: Brown, P. J.

text:
    Gorham, Resp't v. Eastchester Electric Company, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Deed—Boundabibs.
    A deed, which describes land as bounded by a certain street, conveys title to the centre of the street.
    2. Damages—Cutting shade tbbbs.
    The measure of damages for cutting a shade tree on the street in front of plaintiffs premises is the diminution of the value of such premises.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a'new trial.

      Milo J. White, for app’lt; Odell D. Tompkins, for resp’ts.
   Brown, P. J.

—The plaintiffs recovered a verdict against the appellant for damages caused by cutting the limbs from a shade tree which stood on Valentine street, in the city of Mt. Vernon, immediately in front of premises which plaintiff owned and occupied. The privilege of erecting poles and stringing wires along all the streets of the city had been granted to appellant by the municipal authorities; but this grant conferred upon it no authority to interfere with or destroy private property, and the main question presented for review is whether the plaintiffs’ title extended to the middle of Valentine street. The plaintiffs acquired title in 1883, prior to the incorporation of the city of Mt Vernon, under a deed which described' the land as being in the town of Eastchester, and known as lot “ number four hundred on a map entitled ‘Map of Central Mount Vernon,’ etc., filed in the office of the register of the county of Westchester, and bounded easterly by Fifth avenue and southerly by Valentine street. ” This description, we think, conveyed title to the centre of Valentine street Bissell v. N. Y. C. & H. R. R. R. Co., 23 N. Y. 61; Wager v. Troy Union. Railroad Co., 25 N. Y. 526; Hennessy v. Murdock, 137 N. Y. 317; 50 St. Rep. 717. The rule is different when the description bounds the land on the side of the street, and such are the cases cited by the appellant. Kings Co. F. Ins. Co. v. Stevens, 87 N. Y. 287; Blackman v. Riley, 138 N. Y. 318; 52 St. Rep. 865; Holloway v. Southmayd, 139 N. Y. 390; 54 St. Rep. 676. There is fio evidence to show that plaintiffs’ grantors did not own to the center of the street, and as, at the date of the deed, the city of Mt. Vernon was not incorporated, the inference must be that the fee of the highway was in the proprietors of the adjoining lands. Wager v. Troy Union Railroad Co., supra. The city was incorporated in 1892, but we are not referred to any proceedings under its charter by which the plaintiffs’ ownership in the street had been extinguished. Under these facts, the plaintiffs' right to maintain the action was established. The court charged the jury that the defendant, under its grant from the city, had the right to trim away the limbs of the tree so as to free its wire from contact with them, but were bound, in exercising that right, to proceed with ordinary care, and submitted to them the question whether there was an unnecessary cutting away of zthe limbs of the tree. This was certainly as favorable a view of the case as defendant had a right, to claim, and the evidence fully sustains the verdict of the jury upon that question.

Evidence was admitted, over the defendant’s objection and exceptions, to the effect that the destruction of the tree had diminished the market value of the plaintiffs’ premises. This was the correct rule applicable to the case, and the exception to the ruling of the court must be overruled.. Dwight v. Elmira, C. & N. R. R. Co., 132 N. Y. 199; 43 St. Rep. 723. The judgment and order are affirmed, with costs.


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    Charles H. Clark, App’lt, v. New York, Lake Erie and Western Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Ne&li&ence—Contributory.
    The facts, in this case, were held to establish that plaintiff was guilty of contributory negligence.
    Appeal from a judgment entered on an order dismissing the complaint.

      John W. Lyon, for app’lt; Lewis E. Carr, for resp’t.
   Brown, P. J.

—The complaint in this action was properly dismissed on the ground of the plaintiff’s contributory negligence. The plaintiff was a brakeman who had been employed by defendant three or four months prior to the accident. On March 4, 1887, he was assigned to work at a stone crusher near Otisville. A train of cars was being loaded with crushed stone, and stood upon a switch north of the two main tracks. The road at that point was through a rock cut, and the crusher stood on the rocks immediately north of the switch. The stone was loaded onto the cars through a chute. In order to make the load as nearly level as possible, it was necessary to move the cars about two feet at a time, and in order to do that plaintiff was stationed on the car to give the necessary signals to the engineer. After the first car was loaded, finding the dust from the crusher interfered with his seeing the engineer, plaintiff got down from the car onto the main tracks. From there his line of vision was clear. He stood there four or six minutes, when he. was run over by an engine going west, and received the injuries complained of. It appeared that plaintiff stood on the west-bound track, and he testified that he did not know that fact, but obviously his failure to know it was the result of the utmost indifference to his surroundings and his safety. He knew the tracks were there, and that engines and trains were constantly passing that point, vet he failed totally to observe whether he stood on or between the tracks. No one had directed him to go there, and there was nothing to interfere with his observation in each direction. Intent upon his work, he failed to observe the dangerous position that he occupied, or the approach or an engine in full view. The accident was the result of carelessness of the grossest kind, for which plaintiff has no one to blame but himself.

The judgment is affirmed, with costs.


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    Joseph Weil, Resp’t, v. Aaron Levy, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Appeal—Appealable.
    An interlocutory judgment, directing an accounting, is appealable.
    Appeal from an interlocutory judgment directing an accounting.

      M. L. Towns, for app’lt; J. Stewart Ross, for resp’t.
   Brown, P. J.

—The interlocutory judgment in this action is appealable. Code Oiv. Proc. § 1349. Upon the evidence in the case the defendant was a trustee of the chattel mortgage for the payment of the two notes held by himself and the plaintiff. The complaint alleged that it was given “ as collateral security for the payment of said two notes,” and that allegation was admitted by the answer. Coggeshall, the payee of the notes and the mortgagee, testified that the agreement at the time of the assignment was that defendant was to pay his own note and turn the balance over to him for the payment of plaintiff’s note, and this was substantially corroborated by Mr. Lubin, who drew the assignment. After defendant took possession of the mortgaged property, the evidence tended to show bad faith in relation to the sale thereof. But whether there was bad faith or whether there was a bona fide sale are questions which have not been determined. The court in its decisions did not find that there had not been a sale, but it refused, on defendant’s request, to find that there had been one, and this question is left to be determined by the referee. It did decide, however, that the assignment of the mortgage was executed and delivered to defendant for the benefit of the holder of said two notes secured thereby, and that defendant had taken possession of the mortgaged property. This entitled plaintiff to an accounting, and that is all that the interlocutory judgment has determined. The value of the mortgaged property, and whether there was a bona fide sale thereof, and what sum defendant received or is to receive therefor, are questions to be determined by the referee appointed by the judgment. The appellant claims that, as his note matured before that held by plaintiff, it carried with it a pro tanto, and not pro rata, interest in the security. This proposition is not now before us. The trial court did not decide to the contrary, and no exception presents the question for review. It will be determined by the final judgment that will be entered upon the referee’s report, and until that is rendered discussion of the question is premature.

The judgment is affirmed, with costs.


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    Victor M. Sutphen, Resp't, v. Town of North Hempstead, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

      1. Towns—Highways—Negligence.
    A gutter along a highway, with the vertical side towards the traveled track, is not such a defect as will render the town liable to one who is -injured from running his bicycle too near the edge.
    2. Same.
    The injury, in this case, was held to have resulted from contributory negligence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      A Britton Havens, for app’lt; Harrison S. Moore, for resp’t.
   Brown, P. J.

—The accident which resulted in the plaintiff’s in-j uries occurred upon a public highway in the town of North Hemp-stead about sundown on an evening in August, 1892. The highway ran east and west on a hill, upon the top of which it passed through a deep cut. A gutter or ditch existed upon the side of the road to carry off the surface water. Shortly before the accident, the commissioner of highways had deepened the ditch, and at the place of the accident the bottom was about two-and-a-half feet below the crown of the road. The side next to the beaten track was cut down vertically about a foot or eighteen inches. The beaten track of the road was about twenty-five feet wide, and extended right up to the side of the gutter, and was in good condition. The soil was sandy, and the wheels of vehicles passing over it sank into it a few inches. There was no sidewalk, and pedestrians walked along the edge of the road nearest the gutter, and, as a result of this, the surface there was packed harder and the road was smoother than elsewhere. The plaintiff, alad between twelve and thirteen years of age, was riding a bicycle, and, finding that his machine cut into the soft sand in the middle of the road, he turned into the smooth track near the gutter and rode within a few inches of the vertical side. The front wheel cut through the soft earth, and, the side of the gutter giving way, he was thrown from his machine and received the injuries complained of. There was nothing to obscure from plaintiff’s view the gutter,0 or the manner of its construction, and he testified that there was light enough for him to see the road, and that he could have seen the gutter if he had looked at it. In our opinion, the town was not chargeable with negligence upon the facts stated, and the complaint should have been dismissed. The gutter into which plaintiff fell was not an obstruction in the highway, but was constructed to carry off the surface water flowing from the hill, and thus keep the road in a proper condition for travel, and no negligence can be imputed to the commissioner of highways from the fact of its existence. No claim is made that the road itself was not in good order and safe for the ordinary uses of a highway in the country. It was of ample width for all kinds of travel, and the injury which plaintiff received was primarily due to the fact that he rode his vehicle so near to the gutter that the wheel cut through the soft ground and caused his fall. Reasonable care in the construction and maintenance of highways is the measure of duty resting upon the commissioners of the town, and municipalities are not liable for injuries, the result of accidents which are not, by the exercise of reasonable forethought and prudence, to be anticipated. The case is within the rule applied in Hubbell v. City of Yonkers, 104 N. Y. 434; 5 St. Rep. 730; and Glasier v. Town of Hebron, 131 N. Y. 447; 43 St. Rep. 319.

The negligence of which it is claimed the commissioners were guilty was—First, constructing the gutter with a vertical side next to the roadway; and, second, omitting to erect a rail or guard between the gutter and the road. The highway was not dangerous to persons using it with ordinary vehicles by reason of either of these facts. It was twenty-five feet wide—a space on which four wagons could stand abreast—and there was no occasion for any one to ride upon the extreme edge of the road near the gutter; and the fact that the soil was soft, into which a wheel would sink, counteracted any damage which might have existed if the vertical edge of the gutter had been cut through solid material. The accident which happened to the plaintiff was unusual, and incidental to the character of the vehicle he was riding. It was not one within the anticipation or apprehension of a reasonable, prudent man, and there was, therefore, no occasion for extraordinary precautions to prevent it. It cannot be successfully claimed that a larger measure of duty on the part of the commissioners of highways is due to bicycle riders than to persons traveling upon the road in ordinary vehicles. It is apparent that a bicycle rider upon an ordinary country road is exposed to greater dangers than a person riding in a wagon, and the great increase in the users of these vehicles has created a demand for better and safer roads, but under the present highway laws a road in a condition which is reasonably safe for general and ordinary travel is all that the commissioners of highways are bound to maintain. The road in question was safe for travel in ordinary vehicles and on foot, and the evidence did not, -in our opinion, permit the conclusion by the jury that the defendant was negligent in its construction and maintenance. The plaintiff was also guilty of contributory negligence. In his desire to find that part of the road best suited to his mode of travel, he rode so near the edge of the gutter as to cause the accident. He failed to observe conditions which were open to his observation, and which he could have seen if he had looked; and was therefore guilty of such1 carelessness as deprives him of the right to recover.for his injuries. Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493.

The judgment must be reversed, and a new trial granted, with costs to abide the event

All concur.


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    John J. Radley, as Administrator, etc., Resp’t, v. Lillie A. Riker, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)
    Fraudulent conveyance—Consideration.
    An agreement by a wife to remove from the city and live with her husband in the country, is not a sufficient consideration to support, as against his creditors, a conveyance to her from him.
    Appeal from a judgment in favor of plaintiff.

      George F. Mastens, for app’lt; James E. Kelly, for resp’t.
   Brown, P. J.

—This action was brought to set aside two deeds which transferred to the appellant, from her husband, William H. Riker, real estate in Dutchess county. The deeds were dated in July, 1891, and the evidence clearly established that at that time "William H. Riker was owing large amounts of money, and was insolvent. No consideration was paid by the grantee in either deed, but the appellant sought to sustain them by evidence that the property in question was acquired by the husband in exchange for property situated on Sixty-eighth street, in New York, and that when such exchange was under discussion she refused to execute the deed, and that it was thereupon agreed that, in consideration of the release by her of her inchoate right of dower in the New York property, the Dutchess county property should be transferred to her, subject to a mortgage of $5,000. The trial court refused to find that such an agreement was made, and this finding is supported by the testimony. The interest of the appellant and her husband in the result of the trial was such as to make the credibility of their testimony, a subject for the consideration of the court, and we are not disposed to disturb its conclusion. The only other testimony on the question was that of Mr. Williams, the grantor of the property in question. His testimony was as follows: That at the interview with Mr. and Mrs. Riker at their home, prior to the sale, Mrs. Riker seemed to object to the exchange, and he (the husband) told her, if she would consent, he would give her the deed of the Millerton property. Q. And she assented to it at that time ? A. I don’t know as she did at that time. I gave the deed to the husband. Q. How came it that you made the deed to him? A. I suppose he asked me to. I made it as he required it.” This evidence, while it corroborates the appellant to some extent, did not show that an agreement was made; and the fact that the title was taken by the husband, and remained in him for upwards of a year, and until he became insolvent, was strong evidence that the conveyance was not made for such consideration. After the exchange was made, and prior to the conveyance to the appellant, her husband had contracted large obligations, among which was that upon which the judgment held by the plaintiff was recovered; and Mr. Gfrenousrh, one of the firm, with whom he had contracted, was informed by him that he was the owner of the property in suit. The circumstances all tended to contradict the appellant’s claim, and we are of the opinion that the conclusion of the court is amply sustained by the evidence.

The appellant also contends that a consideration for the deed exists in an agreement upon her part to remove from the city, and live with her husband in Dutchess county. That fact, if true, would not constitute a legal consideration, and would not sustain the deed against the claim of creditors.

The judgment must be affirmed, with costs.

All concur.


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    In the Matter of the Application of the Brooklyn Elevated Railroad Company.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Eminent domain—Award—Vacation.
    Where, in condemnation proceedings, one commissioner is absent at every hearing, though with the consent of the adults, and the commissioners were not all present when the award was made, the report will he set aside and a new appraisal, before new commissioners, ordered.
    Appeal from orders setting aside the reports of commissioners and directing a second appraisal before new commissioners.

      W. N. Cohen, for app’lt; Francis Russell Whitney, for resp’ts ; Thomas H. Troy, guardian ad litem.

   Brown, P. J.

—-The misconduct of 'one of the commissioners in these proceedings was of so gross a character that the reports should not be confirmed unless the landowners have waived all objections thereto. One of the commissioners was absent from every hearing, frequently two were absent, and very much of the testimony was given before a single commissioner. Two reports were made. The one made by Commissioner Huber states that lie had viewed the premises described in the petition, and had been informed, and believed, that his co-commissioners had heard the proofs and allegations of the parties, and that the testimony had been reduced to writing; that he had been furnished with a copy of said testimony, which was stated to be correct; that he had carefully read the same, and had determined the compensation which ought justly to be made to the owner. The compensation awarded in each case was six cents. But in the Sinnott Case no award was- made by either report to the infant Charles P. Sinnott, and Commissioner Huber omitted also to make any to the infant John F. Sinnott. A trial conducted as these were is a farce, and the misconduct of the commissioners deprived the reports of that respect which is always due to the determination of a judicial tribunal. But it is said that the property owners consented that the testimony should be taken and the hearings proceed, on each occasion, in the absence of one, and sometimes two, commissionérs, and such is the record, so far as the adult owners are concerned. Notwithstanding such consent, we are of the opinion that the orders appealed from should be sustained, unless the awards have the support of the decided weight of the evidence. A litigant ought not to be placed in the position where he is required to proceed with the trial in the absence of the judge. There is a sort of moral coercion in the suggestion that he do so which is opposed to our sense of justice. And gentlemen who are appointed to such responsible positions as commissioners to appraise the value of property taken by the state against the will of the owner should devote to the trials the time and attention necessary to a fair and just consideration of the case, or else resign. Commissioner Huber violated nearly every duty imposed upon him by statute, and evidently misunderstood the character 'of the position he held; and, if his failure to attend the hearings had been called to the attention of the court, there is no doubt that he would have been promptly removed. The guardian ad litem, however, did not consent, and, if he had, the question whether the award should stand as to the infants would depend upon what was for the best interests of their estate, and not on what the guardian had agreed to. And in the case of John and Charles Sinnott we should hesitate, in any event, to deny to them the right to be upon an equality with their co-owners, and enjoy the award of six cents, which the commissioners denied to them alone of all the owners. But, in relation to the adult owners, there is one objection to the award which they have not waived. The statute requires that, after the testimony in each case is closed, the commissioners, or a majority of them, “ all being present,” shall, without unnecessary delay, ascertain and determine the compensation to be awarded to the owners, etc. Code Civ. Proa, § 3370. This requirement was not complied with. Commissioner Huber made a separate report, in which he stated that he was not present at any of the meetings. The report signed by the other two commissioners states that, after the testimony was closed, they determined the compensation to be made to the owners, and made use of the expression “we all being present.” It is apparent, however, from the context of the report, that this expression referred only to the two commissioners who signed it The purpose of the statute was that the landowner should have the benefit of the exchange of. views and the comparison of ideas which would come from a consultation together of all the commissioners. This has been denied them in these cases, and, while I do not think the result would have been different if such a consultation had taken place, the failure to comply with the command of the statute is an objection of sufficient weight to support the orders appealed from.

The learned counsel for the appellant contends that the reports - of commissioners in proceedings of this character should be set aside only for gross and palpable errors of law. If such be the rule, I think I have pointed out sufficient grounds for its application in the cases before the court. But such is not the rule under the present condemnation law. Section 3371 of the Code of Civil Procedure expressly confers the power upon the special term to set aside the report for “irregularity, error in law or upon the ground that the award is excessive or insufficient.”

The rule which requires the testimony to be reduced to writing and attached to the report, and the power given to the special term to set aside the awards when excessive or insufficient, and the right of appeal which each party has upon a case made as in civil actions, all import that the intention of the legislature was that the award should be reviewed at special and general term upon the facts, as well as upon the law. We therefore come to the question whether the awards before us have the support of the weight of the testimony. As we have determined that there must be a new trial, upon which the evidence before us may be reproduced, an extended discussion thereof would not be proper. As is usual, the expert witnesses who testified as to the effect of the railroad upon the value of the property did not agree, and, assuming that the commissioners adopted the views of the witnesses called by the railroad company, their award cannot be said to be without some evidence to support it. But a pre-eminent fact in all the cases is that the rents of the property have decreased since the construction of the road, and this fact is not satisfactorily explained by those witnesses who think that the property has, during the same period, increased in value. It is sufficient to say that the testimony is of such character that it would have permitted a different result, and it does not clearly preponderate in favor of the award. Taken in connection with the fact that there has not been a fair trial, and no just or proper consideration of the case by the commissioners, the reports were properly set aside, and a new appraisal ordered. The orders appealed from should be affirmed. All concur.