text:
    ELEANOR TERRETT, Respondent, v. RANDALL G. COWENHOVEN, Appellant.

      Simmvwy proceedings — legal title only considered in — holder of equitable title not estopped then’eby — contract of sale.

    Where summary proceedings are instituted by a purchaser at an execution sale, before a county judge, in pursuance of subdivision 4 of section 28 of 2 Revised Statutes, 513, to remove a person holding over and continuing in possession of the real estate purchased, the judge has jurisdiction to pass upon the legal title only, and a judgment rendered therein does not estop a person removed thereunder, from subsequently asserting an equitable title to the land to which the legal title acquired by the purchaser is subject.
    A. purchaser of real estate at an execution sale who has notice of the rights of a vendee in an executory contract for the sale thereof, takes the same subject to such rights, and an actual, visible possession by the vendee gives notice of his rights, whatever they may be.
    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict dnected by tbe court.
    Tbe action was commenced and tried in tbe City Court of Brooklyn, and the appeal was removed to this court, because two of the judges of that court were incompetent to sit.
    The action was brought to recover certain lands, plaintiff’s title to which depended upon that of one Crombie, who had purchased the same, August 5, 1856, at a sale upon an execution, issued upon a judgment recovered against one Tunis T. Cowenhoven, July 12, 1853. The deed was made by the sheriff, November 18,1857. The defendant claimed to be entitled thereto by virtue of a contract of sale made by Tunis T. Cowenhoven to him on the 5th of April, 1851, for $10,000, of which $3,000 was paid down, and of a deed given in pursuance thereof on October 9,1855, recorded November 5, 1857. On March 20, 1858, Crombie instituted summary proceedings before the county judge of Kings county, to remove the. judgment debtor, the defendant and one William H. Cowenhoven from the land, and a warrant therefor was issued on April 12, 1859. On that day Crombie went to the premises and leased the same to Tunis T. Cowenhoven for six months from May 1, 1859, at a specified rent. On the fourth of April the defendant signed the following agreement:
    “ Whereas, James Crombie has this day leased to Tunis T. Oowenhoven the premises on the north side of DeKalb avenue, between Olasson avenue and Graham street, Brooklyn, till November 1,1859, and, in consideration thereof, I, Randall G. Cowenhoven, hereby agree with said Crombie that I will in no way take advantage of the possession given said Tunis T. Cowenhoven under said lease, and will not interfere with said premises till the proceedings before the Hon. S. D. Morris, to obtain possession of said premises by said Crombie against me and Tunis T. Cowenhoven and William Cowenhoven, shall be reversed.
    “ R. G. COWENHOYEN.
    “ April 4, 1859.”
    Two actions against Crombie were subsequently commenced by the defendant — one to reform the sheriff’s deed, on the ground that the premises in question were included therein by mistake, and the other to set aside the judgment under which the sale was had for irregularity and defectiveness, in both of which defendant was unsuccessful.

      Flanders & Ormsby, for the appellant.

      D. P. Barnard, for the respondent.
   Gilbert, J.:

The plaintiff in ejectment must recover upon the strength of Ms own title, and cannot rely on tbe weakness of that of bis adversary. Tbe title of tbe plaintiff rests upon a conveyance by tbe sheriff, dated November 18, 1857, executed pursuant to a sale on an execution issued upon a judgment recovered July 12, 1853, against Tunis T. Cowenboven. Tbe sale on tbe execution was made August 5, 1856. On tbe 5th of April, 1851, Tunis T. Cowenboven tbe judgment debtor, made a contract to sell tbe premises in controversy, to tbe defendant for $10,000, and tbe contract contained a receipt for tbe payment of $3,000 thereon. Tbe premises were conveyed by said Tunis to tbe defendant by deed, dated October 9, 1855, and recorded November 5, 1857. It was claimed by tbe defendant, that be was in tbe actual possession of tbe premises at tbe time of tbe sale on execution, and that be bad continued in possession thereof ever since, and evidence was given to that effect.

Pausing here, it is clear, that a direction to tbe jury to find a verdict for tbe plaintiff would be erroneous. For at tbe time tbe judgment was recovered, and tbe sale on tbe execution was made, tbe defendant bad a contract for tbe sale of tbe land on which a part of tbe purchase-money bad been paid, and it became a question for tbe jury to decide, whether tbe purchaser at tbe execution sale did not purchase with notice of those facts. For a purchaser with notice of tbe rights of a vendee in an executory contract for tbe sale of lands, takes subject to such rights, and an actual visible possession by tbe vendee of tbe lands sold, is notice o'f bis rights, whatever they may be. (Smith v. Gage, 41 Barb., 61; Chadwick v. Fonner, 6 Hun., 545; Brown v. Volkening, 64 N. Y., 82.)

Equity looks upon things agreed to be done, as actually performed. Hence tbe vendor, from tbe time of tbe contract of sale, bolds tbe legal estate in trust for tbe vendee, and before tbe contract is executed by a conveyance, tbe lands are devisable by tbe vendee, and descendible to bis heirs as real estate. (1 R. S., 751, §§ 1, 27; 2 id., 57, § 2 ; Story’s Eq. Jur., § 789, etseg., 1212; Champion v. Brown, 6

Johns. Ch. R., 398; Livingston v. Newkirk, 3 id., 312.) A purchaser from the vendor directly, or at a sale on execution against him, with notice, does not acquire the lands divested of such trust in favor of the vendee, but takes them subject thereto. (Authorities, supra.) It follows, therefore, that such a vendee in possession, cannot be held to be a disseisor, or to unlawfully withhold the possession from the person who holds the legal estate. He may retain his possession until his rights under the contract have been destroyed, and the remedy of the vendor, or of those who have succeeded to his rights, is to enforce- payment of the unpaid purchase-money, or to put an end to the contract by averring and proving a breach thereof. That may be done in an action to recover the possession of the lands, provided appropriate averments are inserted in the complaint, to show that the vendee has forfeited his rights under the contract, and such averments are established upon the trial. But when, as in this case, no such averments are made in the complaint, the defendant may stand upon his denial that he unlawfully withholds possession. {Smith v. Gage, supra)

It appears, however, that in March, 1858, proceedings were instituted before the county judge of Kings county, for the removal of the judgment debtor, the defendant, and another person from the premises, pursuant to the statute of summary proceedings to recover the possession of land (2 R. S., 513, § 28, sub. 4), and the plaintiff claims that the adjudication made in such proceedings, that the defendant and his co-respondents be removed from, and that the plaintiff be put in possession of, the premises, is conclusive against the defendant, and estops him from denying that the judgment debtor held over a part of the premises sold under the execution, and that he (the defendant) entered into possession of the residue thereof under a title derived from the judgment debtor subsequent to the lien of the judgment. No doubt that is correct. But the title of the defendant mentioned was a legal, not an equitable, title. The county judge had no jurisdiction to decide, nor did he decide upon the legal effect of the facts on which the equitable title of the defendant depends. Those facts were not before him. Nor does the omission of the defendant to set up matters, which the county judge had no jurisdiction to try, make the judgment of the latter a bar to subsequent litigation of the same matters before a court having

jurisdiction to try them. A judgment is not conclusive of any matter to be inferred by argument therefrom, but only of material matters within the issue determined. (Greenl. Ev., § 528, 529, 530.) It is doubtful, whether upon the facts stated in the application to the county judge, namely, that the defendant entered into possession and held under a deed executed after the docketing of the judgment, he had power to proceed against the defendant, The case of Hallenbeek et al. v. Garner (20 Wend., 22), cited on behalf of the plaintiff, does not decide the point, and it seems a great stretch of the statute to give it an operation which would, in any case, make the proceeding one for the determination of conflicting claims to the possession of land. The language of the statute, in our judgment, plainly imports that the persons against whom it may be enforced are those, whose rights have been cut off by the sale but who, nevertheless, hold over and continue in possession. A sale on execution passes only the interest of the judgment debtor. The lien of the judgment will be subordinated to prior equitable interests in the land, unless the sale has been made to a Iona fide purchaser. {Nat. Bk. of Norwalk v. Lanier, 7 Hun., 627, and cases cited.) In Ells v. Tousley (1 Paige, 280), the late Chancellor Waíwoeth, used this language: “ I have lately had occasion to decide that the lien of a judgment does not in equity attach upon the mere legal title to land in the defendant, where the equitable title is in a third person.” And when Judge Bronson, in the case in 20 Wendell {supra), intimated that the statute might embrace a person who entered under a title subsequent to the lien of the judgment, he could not have intended to refer to the owner of an equitable title, which was prior to the lien of judgment. The judgment of a county judge in a summary proceeding, creates as effectual an estoppel respecting all matters within his jurisdiction in that proceeding and which actually were, or might have been determined, as the judgment of a competent court rendered in an action. But no judgment of any tribunal upon matters not within its jurisdiction is binding upon anybody. As to such matters the proceeding is eorann non judiee. (White v. Coatsworth, 2 Seld., 137; Mercein v. The People, 25 Wend., 64; La Guen. v. Gouverneur, 1 Johns. Cases [2d ed.], 436, and notes.

We think, therefore, that the defendant was not estopped, by the summary proceeding before tbe county judge, from availing bimself of bis equitable title as a defense to this action. Tbe judgments in tbe Supreme Com-t no doubt constitute a bar to tbe matters litigated therein, but neither of them purport to effect tbe defendant’s right to enter into, or to remain in possession of, tbe land in controversy.

Tbe agreement of tbe defendant dated April 5, 1859, has no force or effect otherwise than as an agreement. It contains no recognition of tbe plaintiff’s, nor any waiver of tbe defendant’s title, but tbe effect of it is quite tbe contrary, and it was evidently intended to operate only during tbe continuance of tbe lease. It is impossible, therefore, to give it at this distance of time, after tbe lease has expired, tbe effect of an estoppel.

For tbe error of chreeting a verdict tbe judgment must be reversed, and a new trial granted with costs to abide tbe event.

Barnard, P. J., and D teman, J., concurred.

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


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    WILLIAM WILSON, Respondent, v. JUSTUS PALMER, Impleaded with THOMAS DORAN, Appellant.

      Appeal from am orde/r gramting a new trial — stipulation as to judgment absolute— effect of.

    In this action, brought to establish a mechanic’s lien and recover a personal judgment against both defendants, the complaint was dismissed at the Circuit. Upon appeal, the General Term reversed the judgment and ordered a new trial, holding, in their opinion, however, that plaintiff was not entitled to .a personal judgment. From this order defendants appealed, stipulating that judgment absolute might be rendered against them in case of its affirmance. The Court of Appeals having affirmed the order, the plaintiff entered a judgment establishing the lien, and also the personal liability of the defendants.
    Upon an appeal from an order denying a motion by the defendants to strike out so much thereof as established their personal liability, held, that the judgment was proper ; that the former judgment having been reversed, the action stood as if there had been no determination of the issues, and the consent to an absolute judgment had the effect of a stipulation that the court might determine said issues in favor of the plaintiff.

      Appeal by defendant Justus Palmer from an order made upon a motion by defendant Palmer, to strike out so much of a judgment entered on a remittitur from the Court of Appeals in this action as authorized, and directed a personal judgment against the said Palmer, and from the judgment entered in the City Court of Brooklyn, in pursuance thereof.
    The action was brought for the foreclosure of a mechanic’s lien.

      Justus Palmer, appellant in person.

      Thomas F. Jaehson, for the respondent.
   Gilbert, J.:

The appeal from the judgment and that from the order present the same question, namely, whether the former is in accordance with the judgment of the Court of Appeals. The action was tried at Special Term after a verdict of a jury upon special issues. The plaintiff’s claim was two-fold, namely: First, a specific hen under the mechanic’s hen law; and, second, a personal habihty against both defendants. The judge at Special Term found ah the facts on which the plaintiff relied to sustain his claim, but found, and decided as matter of law, that the plaintiff was not entitled to any hen, and that the complaint should be dismissed, and he rendered judgment accordingly. On appeal by the plaintiff to the General Term, this judgment, was reversed, and an order was made granting a new trial, the General Term holding, however, that the plaintiff was not entitled to a personal judgment. Both defendants appealed from the last-mentioned order to the Court of Appeals, and gave the assent required by the Code, that if said order should be affirmed, judgment absolute should be rendered against them. The Court of Appeals affirmed the order, and rendered judgment absolute against both defendants. Upon the remittitur being filed in the City Court, that court entered a judgment, which established not only the lien, but the personal liability of both defendants for the debt. The defendant Palmer moved for an order striking out and setting aside so much of said judgment as authorizes and directs a personal judgment against him. An order was entered denying such motion, and the appeals before us are from that order as well as the judgment

It is claimed by tbe defendant Palmer, that a personal judgment is erroneous, because the General Term having decided on the plaintiff’s appeal that the latter was not entitled to such personal judgment, and having ordered a new trial upon another ground, the appeal to the Court of Appeals did not embrace that matter. There would be some ground for this position if the order of the General Term had contained a clause, adjudging that the appellant was not personally liable. The plaintiff might then have been put to his appeal from that part of the order, in the absence of which, the appellants in the Court of Appeals might well have contended before that court, that their appeal brought up only that part of the order appealed from, which granted a new trial. But the order of the General Term merely reversed the entire judgment, and granted a new trial. The reasons assigned for such reversal form no part of the judgment, nor can they be used to modify its effect. When, therefore, the Court of Appeals rendered an absolute judgment against the appellants, it became obligatory upon the City Court to enter a judgment in favor of the plaintiff upon all the issues in the action, for the reason that the appellants had assented to the rendering of an absolute judgment in favor of the plaintiff, without a trial of the issues. The result of the former trial having' been reversed, the action stood as if there had been no determination of the issues, and such assent to an absolute judgment had the effect of a stipulation that the court might determine said issues in favor of the plaintiff. The plaintiff could not be compelled to a new trial of any or either of such issues, for the right of the appellants to a new trial had been barred by their assent to an absolute judgment. A new trial was unnecessaiy to the determination of the rights of the parties, for the legal effect of the assent was to accomplish that object in the manner stated. Nor were any further proceedings necessary to ascertain the amount which the plaintiff was entitled to recover, for that had been done on the trial already had. It is only where such subsequent proceedings are requisite to render the judgment of the Court of Appeals effectual, that they are required to be taken. No such necessity exists in this case.

We are inclined to think the agreement of Palmer, on which the personal judgment against him rests, is one not within the statute of frauds, still if he has lost the technical advantage of again presenting that question for adjudication, it must be attributed to bis voluntary waiver of a new trial. Upon tbe facts found, it seems to us substantial justice will be done by tbe effect which we now give to tbe judgment of tbe Court of Appeals.

Tbe judgment and order must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment and order affirmed, with costs.


text:
    WILLIAM S. VERPLANCK, as Receiver, etc., of THOMAS W. CHRYSTIE, Appellant, v. LORENZO VAN BUREN and SQUIRE VAN BUREN, Respondents.

      Forme/r judgment — founded, .upon false evidence — operates as an estoppel to second ■action for same cause.

    One Monell, as assignee of one Chrystie, commenced an action against the present defendants to procure a settlement of the amount due to Chrystie, who had been engaged in carrying on the business of manufacturing brick with them, and recovered a judgment for a certain sum on the 4th of May, 1874. Subsequently the present plaintiff, having been appointed assignee in the place of Monell, brought this action, in which he alleged, that during the period covered by the accounting in the former action the defendants had fraudulently made entries in their books of account of fictitious sales of bricks, at prices much lower than those they had actually.received for them, and sought to recover the interest of Chrystie in the excess so received. Held, that he was estopped by the former judgment, and that the action could not be maintained.
    The fraud which vitiates a judgment consists of acts or omissions whereby the court is deceived, and in consequence a judgment is given different from what would otherwise have been given; the fact that the evidence upon which a judgment was founded was false, does not justify the bringing of another action for the same cause of action set up in the first.

      State of Michigan v. Phrnnix Bcmh (33 N. Y., 25) distinguished.
    Appeal from an order granting a motion, made upon tbe minutes of tbe justice before wbom tbe action was tried, setting aside a verdict of a jury in favor of tbe plaintiff.
    Tbe defendants and Thomas W. Chrystie, on tbe 1st day of April, 1810, entered Into an agreement by which tbe defendants agreed to carry on, and did carry on, the business of manufacturing brick, on shares, on the premises of Thomas W. Chrystie, for the term of five years from April 1, 1870. By this agreement the defendants were to sell the brick and receive the receipts therefor, and to pay over one-half of the net proceeds thereof to said Thomas W. Chrystie. On the 3d day of November, 1871, John J. MoneU was appointed receiver of the goods, chattels and credits of the said Thomas W. Chrystie, and afterwards an action was brought by said receiver against- said defendants, for an accounting of the proceeds of said business for the years 1870, 1871 and 1872, and a judgment recovered therein on Mayé, 1874, for’$3,278.49. Subsequently, 'William S. Verplanek having been appointed receiver in the place and stead of said John J. MoneU, brought this action against the defendants for not accounting for aU the sales of brick made on said Ohrystie’s premises under said contract on the trial in the former action, and for fraudulently conceahng the actual sales on said accounting before said referee, aUeging that during the period covered by the prior accounting, they made “ bogus sales ” of about 7,000,000 of brick at a “ nominal price ” below the market-price to Marcus Kendall and William R. Knapp, and entered that false price in their books, and reported it to Chrystie, and deceived him thereby until after judgment in the former action; at the same time sending the same brick to the regular market in the usual way as provided by the contract, and receiving therefor $9,680.38 more than they reported. The cause came on for trial before Mr. Justice Dykman and a jury, at the court-house, in the city of Poughkeepsie, on the 6th day of December, 1876, and a verdict was rendered for $6,476.42 in favor of the plaintiff. The defendants’ counsel then moved upon the minutes and upon the whole case for a new trial and to set aside the verdict of the jury. On the 3d day of January, 1877, the verdict was set aside and a new trial granted, and an order to that effect entered, and from that order plaintiff appeals to this court.

      Galmvrb Frost, for the appellant.
    The action.is on the case “for fraud and deceit ” to recover money received by defendants “ in a fiduciary capacity” as agents of the plaintiff, and fraudulently embezzled and converted. (Code, § 179, subs. 2 and 4, last clause.) The action for fraud will lie whenever any fraudulent, intent works an injury, although there might be also an action for accounting. (1 Bac. Abr., Action on the Case, F.; Benton v. Pratt, 2 Wend., 385; Goldberg v. Dougherty, 7 Jones & S., 189; Morgan y. Skidmore, 55 Barb., 263-268; Warner y. DeBaMm, 1 E. D. Smith, 261; Stowed v. OhamberlaÁn, 60 N. Y., 272; Dean v. Alien, 8 Johns., 390; Golmell v. Bleakley, 1 Abb. Ct. of App. Dec., 400; Smith y. Weeks, 26 Barb., 466.) A former adjudication pleaded as a defense may always be avoided by showing that it was fraudulently obtained, and it may be impeached collaterally for fraud wherever it is set up. (Code, § 168; Dobson v. Pearce, 12 N. Y., 165; Hackley v. Draper, 60 id., 92; Michigan v. Phoenix Bk., 33 id., 25; Whetstone v. Whetstone, 31 Iowa, 282; Dunlap v. Goaty, 31 id., 262; Borden v. Fitch, 15 Johns., 421; Jackson v. Jackson, 1 id., 425; Webster v. Reid, 11 How. [U. S-], 437; Martin v. Judd, 60 111., 85; Wilson v. Green, 25 Yt., 450-456; Story v. Norwich R. R., 24 Conn., 94; Grove v. Hodges, 55 Penn., 519.) If failure to litigate in the first suit be caused by the fraud of his adversary, a second action will lie. (Barford v. Kersey, 48 Miss., 643-649; Stewart v. Stebbins, 30 id., 66; Ferrolt v. Bradfort, 2 Fla., 508; Spicer v. Waters, 65 Barb., 233; Reigal v. Wood, 1 Johns. Ch., 405; Smith v. Weeks, 26 Barb., 466; Huggins v. King, 3 id., 619 ; Devoue v. Fanning, 4 Johns. Ch., 199; The People v. Fddty, 57 Barb., 593; West v. Kerby, 4 J. J. Marsh., 56; Brunk v. Means, 11 B. Monroe, 214; Bullcty v. Andrews, 39 Conn., 524.) Judgment may be attacked collaterally for fraud. (Rasuley v. Stott, 26 Penn. St., 126, 130; Horner v. Doe, 1 Ind., 130; Gallaban v. Gris-wold, 9 Mo., 775; Hartman v. Ogborn, 54 Penn. St., 120; Hall v. Hamlin, 2 Watts [Penn.], 354; EdgellY. Sigerson, 20 Mo., 494; 23 Ind., 493; 25 id., 456; Vandmier v. Mason, 24 N. J., 818; Woodward v. Schmidt, 5 Phil., 152; Fisk v. Miller, 20 Texas, 579; Arnett v. Terry, 35 N. Y., 256; Pearce v. Olney, 20 Conn., 544; State v. Little, 1 N. H., 257; Mansion v. Molesmith, 1 Ed$n, 18; Kennedty v. Dank/, 1 Sch. & Sef., 135 ; PMlUppson v. Lord Egremont, 6 Q. B., 587-605; Lord Brandon v. Beecher, 3 Clark & Fin., 510; Sheddon v. Patrick, 1 Macq., 535; Reg v. Saddlers Go., 10 H. L., 431; Tommey v. White, 4 id., 313.) This rule is qualified if there be negligence in the former action, but it is not negligence to rely on the truth of statements of an adversary. (Mead v. Bunn, 32 N. V., 275; Morse v. Bwitz, 19 How. Pr., 286-288; Clark v. Ba/nkin, 46 Barb., 578; Smith v. Nelson, 62 N. Y., 289; Hu/ngerford’s Appeal, 41 Conn., 322.)
    ¿Z". H. Hustis, for tbe respondents
   Gilbert, J.:

We are of opinion that the former adjudication is a bar to this action. There is no occasion to dispute the principle that fraud vitiates all acts, however solemn, or even judicial. That principle is an exception to the general rule rejecting extrinsic evidence to affect written instruments or public records. As was said in the Duchess of Kingston’s Case (20 How. St. Tr.), “ fraud is an extrinsic collateral fact, which vitiates the most solemn proceedings of courts of justice.” In.such cases, the whole proceeding is fábula non judicium. (Harrison v. Mayor, 4 De Gex, M. & G., 148.) The principle applies to every species of judgment. It matters not whether the judgment impugned has been pronounced by an inferior or by the highest court of judicature in the State. Equally well settled, however, is another principle of universal application, namely, that the judgment of a court of competent jurisdiction, directly upon the point, is, as a plea, a bar, or, as evidence, conclusive between the same parties and their privies. Such a judgment is an estoppel. (1 Gr. Ev., §§ 522-535.) Both these rules are founded on the highest public policy. On the one hand, the public interest requires that fraud shall be detected and suppressed, and on the other, that a limit shall be prescribed to litigation, and that the same cause of action shall not be brought before the court more than once for a final determination. At first blush these principles would seem to be inconsistent with each other, but, in truth, there is no repugnancy between them. As was also remarked in the Duchess of Kingstorüs Case, “ although it is not permitted to show that the court was mistaken, it may be shown that they were misled.”

The fraud, therefore, that vitiates a judgment consists of acts or omissions whereby the court is deceived, and, in consequence of such deception, a judgment is given different from that which otherwise would have been rendered. But the insisting upon rights which, upon a due investigation of those rights, might be found to

be overstated or overestimated, is not the kind of fraud which will authorize the court to set aside a judgment (Patch v. Ward, Law R., 3 Ch. App., 207); nor will a party against whom a judgment is rendered be permitted to impeach it by proof that the evidence upon which it is founded was false. (Poss v. Wood, 8 Hun, 185 ; S. C., Ct. of App., MSS.) A great wrong, no doubt, is done, and a high crime committed, by such a use of false witnesses; but the remedy for the public crime is the indictment and punishment of the parties to it, and for the private wrong, by a motion in the action for a new trial, or an appeal. There might never be an end to a suit if parties were permitted to set up the giving of false testimony against them, as a fraud which vitiated the judgment. The only fraud alleged here is of that character. The defendants, it is true, were the witnesses who, it is alleged, gave the false testimony on the trial of the former action; but that makes no difference. They were competent witnesses, and were no more guilty of fraud by testifying themselves, than if they had procured others to do so.

The case of State of Michigan v. Phenix Bank (33 N. V., 25) we think is not in point. In that case, a gross fraud was practiced directly upon the members of the board of auditors, by which alone they were induced to make the award. They were misled by the counsel for the bank.

Should the rule for which the plaintiff contends be adopted, and a judgment had against the defendants, what is to prevent their bringing another action to recover back moneys paid upon that judgment, on the ground that the testimony of the plaintiff’s witnesses on the trial of this action was false? How many adjudications must there be to constitute a bar ?

' Upon principle as well as upon authority, we are convinced that the former judgment is a bar to this action. (Smith v. Nelson, 62 N. Y., 286.)

The order appealed from must, therefore, be affirmed, with costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Order granting new trial affirmed, with costs.


text:
    ANNIE GREEN, Administratrix, and others, Administrators, etc., Appellants, v. THE ERIE RAILWAY COMPANY, Respondent.

      Negligence — action to recover' damages for — Contributory negligence — intentional mischief.

    Plaintiffs’ intestate was a passenger, on a western-bound train of defendant, for Otisville, of which place he was a resident; passengers arriving there from the east are compelled to alight upon a platform between the tracks and cross the eastern track, in order to reach the station. Plaintiffs’ intestate stepped from the smoking car, at the end nearest the locomotive, upon the platform, and from thence upon the eastern track, when he was struck and killed by a train of coal cars going east, the engine of which had been switched off. There was no brakeman on the forward end of the coal cars, nor was any signal given of its approach. The defendant claimed that the plaintiffs’ intestate was guilty of contributory negligence, as there was no evidence to show that he looked to the west before stepping on the track. Held,, that the question of contributory negligence was, under the circumstances of the case, a question for the jury, and that it was error to direct a nonsuit.

      Semble, That although, as a general rule, the plaintiff in an action to recover damages sustained by reason of the negligence of the defendant cannot recover if he has been guilty of contributory negligence, yet where the defendant could, by the exercise of ordinary care and diligence, have prevented the accident, the plaintiffs’ negligence will not excuse him.
    Appeal from a judgment iu favor of the defendant, entered upon a nonsuit directed by the court.
    The action was brought to recover damages sustained by reason of the death of the plaintiff’s intestate, alleged to have .been caused by the negligence of the defendant.
    On the 20th day of April, 1815, the intestate, a farmer, residing near Otisville, took passage for that place on a westward-bound train of defendant.
    The depot or waiting-room of the company at this place is on the south side of its railway, so that passengers arriving there on the westward-bound train to reach the waiting-rooms or depot must cross the track of the eastward-bound trains. On the arrival of the train, Mr. Green left the smoking car at the end nearest the locomotive, and alighted upon the platform between the tracks of the eastward and westward-bound trains, some few yards west of and beyond the depot. He started to go to the depot, but while on the track of the eastward-bound trains he was struck by a coal dump, loaded with coal, passing down the eastward track, and killed. The coal dumps were a portion of a train known as a pusher train. From Otisville west to Port Jervis, twelve or thirteen miles, there is, coming east up the mountain, a heavy grade, and the company was in the habit of máking up coal trains at Port Jervis known as pusher trains, which consisted of a large number of coal dumps, having an engine in front and an engine in the rear of the coal cars. On the arrival of such trains at the summit just west of Otisville, the engines are cut loose, and the forward engine is run down east of Otisville to a switch, and the coal dumps, controlled by the brakemen, are run down the grade past the station and on the switch.
    On the arrival of the train, the forward engine of one of these pusher trains had passed the station east to the switch, and the coal train was making its way to the switch, when the forward coal dump struck Mr. Green.
    There was no brakeman on the forward end of the coal dump which struck Mr. Green, or any warning or signal given of the approach of the train.
    Upon motion of defendant’s counsel the plaintiff was nonsuited, on the ground that the intestate was guilty of contributory negligence in not ascertaining whether a train was approaching from the west before stepping upon the track.

      Gilbert 0. Hulse, for the appellants.

      Lewis E. Ga/rr, for the respondent.
   Gilbert, J.:

The general rule, no doubt, is that the plaintiff, in an action for negligence, cannot succeed if it is found by the jury that he himself had been guilty of negligence or want of ordinary care, which contributed to cause the accident. But this rule, in many cases, is qualified by another one, which is that though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiffs negligence will not excuse him. (Radley and or. v. The Lond. and N. W. R. Co., Law Rep., 1 App. Cases, 754, 759 ; Kenyon v. The N. Y. C., etc., R. Co., 5 Hun, 479, and cases cited.) We think it was a proper question for the jury, whether the defendant was not guilty of such gross negligence as was equivalent to intentional mischief.

The provision made for passengers arriving at Otisville by a westward bound train, are extremely dangerous. In going from the cars to the station they are obliged to cross the track on which eastward bound trains are propelled. To send into the station an eastward bound train at the moment passengers by a westward bound train were alighting from the cars and seeking egress from the station, certainly, evinced a reckless indifference to the safety of the passengers.

The plaintiffs, however, were nonsuited, on the ground that the deceased was guilty of contributive negligence, because he made no effort to ascertain whether a train of cars was approaching from the west. No witness testified that he did not make that effort. Whether he did or not, depends upon inferences to be drawn from other facts, which are not in their nature conclusive. In .such a case it is the province of the jury and not that of the court, to draw the inferences.

The nonsuit was clearly erroneous ; and for that reason the judgment must be reversed and anew trial granted, with costs to abide the event.

Barnard, P. <L, concurred; Dyjqian, J., not sitting.

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


author: Dykman, J.:

text:
    JOHN QUINN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Burgla/ry — “ dwelling-house ” — what is.

    The owner of a building divided the lower part into a store and bar-room, no communication existing between them, and carried on business therein, he living over the store and other people over the bar-room, which could only be entered from the street. Sold, that the bar-room was part of the dwelling-house, and that the breaking- into it for the purpose of committing larceny constituted burglary in the first degree.

      People v. Snydm' (2 Park. Or., 23) followed.
    Writ of error to the Court of General Sessions of the county, of Richmond, to review the conviction and sentence of the plaintiff in error of the crime of burglary in the first degree.

      Mm O. Huébner, for the plaintiff in error.

      Jolm Orook, for the defendant in error.
   Dykman, J.:

The plaintiff in error was indicted in Richmond county for burglary in the first degree, for breaking and entering in the nighttime the dwelling-house of----, in which there was at the time some human being, with intent to commit the crime of grand larceny.

On the trial it appeared that the portion of the building which was broken was used for a bar-room ; that no person lived or slept in that room, but there were people living over it, and the owner lived over the store adjoining, and there were people living in other parts of the building and that all were under the same roof.

The court charged the jury that the offense of burglary in the first degree consists of forcibly breaking into a dwelling-house occupied by human beings in the night-time, with the intent to commit a crime ; and the offense of grand larceny consists in stealing property to the value of twenty-five dollars.

That upon the evidence in this case, which is undisputed, there was a breaking into the building in the night-time, and such breaking, by the evidence, constitutes burglary in the first degree.

The counsel for the prisoner excepted to that portion of the charge which states that upon the evidence in this case, which is undisputed, there was a breaking into the building in the nighttime, and such breaking by the evidence constitutes burglary in the first degree.

The jury found a verdict of guilty, and this case is brought here on the allegation of error presented by the exception to the charge of the court.

The question thus presented is, whether this bar-room which was broken was a dwelling-house or a part of a dwelling-house, within the meaning of the criminal law relating to burglary ? It is quite true that a room or other portion of a house may be so severed from the rest as not to be the subject of burglary in the first degree.

Such would be the case if a parcel or room of the house was leased to a trader who worked and traded in it, but did not he in it. Such portion of the house would then become a shop or store, and entitled to the protection which the law give it as such, and would not be entitled to the protection which the law, for obvious reasons, throws around a dwelling-house. That rule cannot control this case, however1, for here there was no severance, as the owner himself carried on the business both in the bar-room and the store adjoining, and lived over the store under the same roof.

At-common law, where burglary could only be committed in respect to a dwelling-house, every building for the dwelling and habitation of man was a dwelling-house. (3 Black. Com., 224.)

It seemed to be necessary that the occupier and his family should usually dwell and lie in it, but our statute provides that every house, prison, jail or other-edifice which shall have been usually occupied by persons lodging therein at night shall be deemed a dwelling-house of any person so lodging therein. (3 R. S. [6th ed.], 929.)

The question, then, is, whether breaking in the bar-room of this building can be considered a breaking of the dwelling-house of the owner ? He lodged under the same roof, over the adjoining room, but there was no connection between the two rooms, and it was necessary to go out of the store into the open air to get to the room over it. There is a negative provision in our statute that no building shall be 'deemed a dwelling-house, or any part of a dwelling-house, within the meaning of the statute, unless the same be joined to, immediately connected with, and part of the dwelling-house ; and it seems to be fair to infer the converse of the proposition, and to hold that a building or room immediately connected with, and forming a part of, the dwelling-house, must be deemed such or a part of one.

This room which was entered certainly did form a part of the dwelling-house of the owner, and it seems reasonably to follow, from the provisions of the statute referred to, that it was a part thereof.

It would be against common sense to say that a store or shop or bar room, situated as this was, without any severance in law, was not parcel and part of the dwelling-house in which it was, and entitled to the protection given to such by the law.

In the case of - The People v. Snyder (2 Park Or., 23), the prisoner was indicted for burglary for breaking and entering the dwelling-house of William Stratton. The place in which the burglary was committed was in a room in the dwelling-house of Stratton, occupied by him as a shoe shop. There was no communication between the shop and the other part of the house, which was occupied by Stratton’s family, except by an outside door, which opened into a yard, surrounding the whole building, which was all erected together under the same roof. Some of the rooms occupied by the family were above, some on the same floor with the room occupied as a shop, and some below it. The Court of Oyer and Terminer, Walworth, circuit judge, presiding, held that the shop, as it was situated, constituted a part of the dwelling-house. It was built at the same time, under the same roof, occupied by the same person, and nearly surrounded by rooms occupied by his family. That case was much like the one under consideration, and the conclusion reached meets our full approbation.

After a full and careful examination, we find in this case all the essential elements of the crime of burglary in the first degree, and the indictment properly describes the place where it was perpetrated as the dwelling-house of the owner.

The conviction must, therefore, be affirmed.

Present — Barnard, P. J., Gilbert and Dvkman, JJ.

Conviction affirmed.


text:
    BRIDGET E. McNULTY, as Administratrix, etc., of JAMES McNULTY, Deceased, Appellant, v. LYMAN M. HURD, Respondent.

      Surrogate — jurisdiction of — to direct payment of judgment against am, intestate.

    A surrogate has power, on an application made by the owner of a judgment against the intestate, to require the administrator to pay the same, where the validity of the judgment is not disputed, but only its ownership and the amount due thereon.
    Appeal by tbe administratrix from a decree of the surrogate of Kings county, directing the appellant to pay the amount of a judgment against her intestate to the respondent.

      McGuire da Kuhn, for the appellant.

      Jolm 8. Berry and Joseph Ccorson, for the respondent.
   Dykman, J.:

The respondent is the owner of a judgment obtained . against James McNulty, the intestate of the appellant, and on his application, the surrogate of Kings county made an order requiring the appellant to show cause why he should not be required to pay the same.

The appellant denied that the respondent was the owner of the judgment, .claimed that it had been paid, and then denied the jurisdiction of the surrogate to determine the issue so raised.

The objection was overruled, and a decree for the payment of the amount remaining unpaid upon the judgment was made, after testimony had been taken which established the judgment, the respondent’s ownership of the same, and the amount unpaid thereon. The only question on this appeal is, whether the surrogate had power to decree the payment of the judgment.

Surrogates’ Courts are of limited jurisdiction, and their powers are special, and given and defined by statute. The provisions which relate to the subject under consideration are, that every surrogate shall hold a court, and shall have power to direct and control the conduct, and settle the accounts of executors and administrators, to enforce the payment of debts and legacies, and the distribution of the estates of intestates. (2 R. S., 220, § 1.)

It is further provided, that when an account shall be rendered ^.nd finally settled, and any part of the estate remains to be paid or distributed, the surrogate shall make a decree for the payment and distribution of what shall so remain, to and among the creditors, legatees, widow, and next of kin, and in such decree, shall settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share, to whorn the same shall be payable and the sum to be paid to each person. (2 R. S., 95, § Yl.)

The judicial construction of these statutes is, that under them the surrogate has no power to adjudicate in reference to a disputed claim. The considerations which have induced this construction, seem to have been, that these disputed claims often involve tedious litigation and intricate questions of law and fact; and that it would devolve upon Surrogate’s Courts labor and responsibility beyond the object of their institution, if they could be called upon to determine all the controversies that arise in respect to such disputed claims.

Now, although the rule is well settled in our courts, yet it must be acknowledged, that the reason for it is not very satisfactory, and is not so strong as' to require it to be extended further than it has already been carried.

So far as our researches have gone, we do not find that it has been applied to the case of a judgment where the claim has been liquidated and no further litigation is to be had, where the claim is not disputed, but only its ownership, and the amount remaining unpaid upon it. Let it be borne in mind, that here was an account rendered by the administrator and. an inquiry into the assets, and that they were found sufficient to pay the judgment.

There is no reason, either in the analogies of the law or in public policy, why the surrogate should not have entertained jurisdiction of this case. The original claim against the appellant’s intestate had been liquidated and fixed by the judgment, and to compel the claimant to establish his judgment before any other tribunal, would have been an idle ceremony, especially as the validity of the judgment was not questioned.

We think this was not a disputed claim within the true meaning and intention of the statute. The judgment was the claim, and about that there was no controversy. The appellant does not gainsay it; all he says, is, the respondent does not own it and it has been paid. This amounts to an admission that the claim was at some time valid and subsisting, and is entirely inconsistent with the idea of any dispute in relation to its validity as a claim. It is true this judgment is not conclusive upon the appellant, and she might show it was paid and thus destroy its existence as a claim; but there is no reason why the surrogate should have refused to proceed further with the respondent’s petition, merely because there was an allegation of payment.

Whether the judgment was paid in whole or in part or was owned by the claimant, were questions relating to the claim which assumed its existence; and the statute requires the surrogate to settle and determine all questions concerning any debt or claim. The foregoing views, which seem to be so consonant with reason and principle, are not without support from authority.

The chancellor had the question before him in the case of Kidd v. Chapman (2 Barb. Ch., 414), and gave it a fair examination, and he there held that the surrogate had the power to decree the payment of a judgment recovered against the testator in his lifetime, although the executor does not ask for a final settlement of his accounts.

In The Matter of Phyfe (5 New York Legal Observer) it was held that the fact of admission as well as of judgment could be tried, and the surrogate had jurisdiction for that purpose. It is true, hlr. Justice Brown made some criticism of the case of Kidd v. Chapman, in his opinion in the case of Wilson v. The Baptist Society (10 Barb., 319), but one of his associates did not concur in that part of his opinion, and the other expressly dissented from the whole of it.

We think the criticism was unwarranted, and that the opinion of . the chancellor takes the correct view.

The decree of the surrogate must be affirmed, with costs.

Barnard, P. J., dissented.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Decree of surrogate affirmed, with costs.


text:
    GEORGE COCHRAN’S EXECUTOR and others, Appellants, v. OLIVER R. INGERSOLL, Impleaded, etc., Respondent.

      Adjustment of costs — on remittitv/r from Oowrt of Appeals — Oode, § 311.
    Where an order of the General Term is affirmed by the Court of Appeals, with costs, and the cause is remitted to the Supreme Court, that court has power to adjust the costs in cases where the clerk of the court cannot do it.
    Appeal from an order made at a Special Term, April 1Y, 18YY, entered on the filing of a remitbibwr from the Court of Appeals.
    The rermtbitm' from the Court of Appeals directed “that the said order be in all things affirmed, with costs.” The order appealed from provided that, “ on reading the remittitur from the Court of Appeals in this action, filed in the office of the clerk of the county of Kings, on the 16th day of December, 18Y6, it is ordered, that the decision of the Court of Appeals affirming, with costs, the order of the General Term of this court, which was made and entered on the 9th day of May, 18Y6, be and stand as the decision of this court. And it is further ordered, that defendant Ingersoll do recover of the plaintiffs the sum of $103.00, his costs and disbursements, on said appeal to the court of appeals, the same being adjusted by me at that sum as per bill of costs filed with the clerk of this court on this day, and that the precept of this court issue for the collection thereof.

      P. Y. R. Sta/nton, for the appellants.

      Britton, Ely & Snell, for the respondent.
   Dykman, J.:

In this action an appeal to the Court of Appeals was taken from an order of the General Term of the Supreme Court. The order was affirmed, and the proceedings were remitted to the Supreme Court by a remitbiim', which was filed in Kings county on the 16th day of December, 18Y6. On the 21st day of March, 18YY, an order was made ex parte, by which the order of the Court of Appeals was made the order of this court, and the costs were directed to be adjusted by the clerk of this court on the usual notice.

A motion was then made to modify this order, in deciding which the judge marked on the papers the words “ motion denied, and order amended to conform to the practice,” and thereupon an order was made by which the order of March twenty-first was amended so as to read as follows: “ On reading the reTmtUtur from the Court of Appeals in this action, filed in the office of the clerk of the county of Rings, on the 16th day of December, 1876, it is ordered that the decision of the Court of Appeals affirming, with costs, the order of the General Term of this court, which was made and entered on the 9th day of May, 1876, be and stand as the decision of this court; and it is further ordered that defendant Ingersoll do recover of the plaintiff the sum of $103, his costs and disbursements on said appeal to the Court of Appeals, the same being adjusted by me at that sum as per bill of costs, filed with the clerk of this court on this day, and that the precept of the court issue for the collection thereof.” •

From this order an appeal is now brought to the General Term. The questions presented by this appeal are very technical, and do not affect the merits of the case or the rights of the parties in any way. Whether the decision of the Court of Appeals is called an order, a decision, or a judgment, can make no difference. It determines the question presented, and sent the record to the Supreme Court to enforce the decision. In the remitbiim' it is stated that the notice of appeal, the return thereto, and the judgment of the Court of Appeals, are remitted to the Supreme Court to be enforced according to law; and, it would seem from this, that the decision was regarded as a judgment in the court in which it was made, and ought, in strictness, to have been so designated in the order. The •question relating to the adjustment of the costs must be determined, and has even more general importance.

The last part of section 311 of the Code, provides that whenever it shall be necessary to adjust costs in any interlocutory proceeding in an action, the same shall be adjusted by the judge before whom the same may be heard, or the court before which the same may be decided or pending, or in such other manner as the judge or court may direct, and the appellant now invokes the benefit of this provision for the reversal of the order appealed from, and as the court before which this proceeding was decided was the Court of Appeals, that court had the only power to adjust the costs if the proceeding was interlocutory, but we do not think it was; such a proceeding is something that is intermediate and done between the commencement and termination of an action. This was no such proceeding, and is not included within the provision of the statute quoted. Besides, we think this provision has no application or reference, to an appeal to the Court of Appeals from an order. Such costs have never been adjusted by that court, nor by one of its judges, neither has it been usual for the rermtbvfru/r to contain any direction for the adjustment of the costs of that court. After the cause is remitted to the Supreme Court, it must be considered as pending therein, and, therefore, a judge of that court has the power to adjust the costs in cases where the clerk of the court cannot do it, and this is such a case. The order should be affirmed, with costs and disbursements.

Present — Barnard, P. J., and Dykman, J.; Gilbert, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    In the Matter of the Estate of RUTSEN SUCKLEY, Deceased, in Accountins by the Executors and Trustees.

      Statute of distribution— no, representation after ehildn'en of brothers and sistm’s.

    Wliere an intestate dies unmarried, leaving him surviving, as his next of kin, a brother and sister and four grandchildren of a deceased half-brother, held, that the personal estate should be distributed between the brother and sister, and that the grandchildren of the deceased brother had no interest therein.
    Appeal from the decree of the surrogate of Dutchess county, directing a distribution of the estate of Rutsen Suckley, deceased.

      Lewis L. Delafield, for the appellants.

      Thompson <& Weeks, for the respondent.
   Dykman, J.:

Rutsen Suckley died on the 22d day of June, 1875, leaving a last will and testament, which disposed of all his property to his brother and sister; but by the death of his sister prior to that of his own, the one-half of his devise lapsed, and the one-half of his property remained undisposed of by his will, and so descended to his heirs at law. The real estate so descending has been partitioned and the personal property came into the hands of the executors of the will.

The testator left him surviving one brother and one sister and four grandchildren of a deceased half-brother on his father’s side. The executors have been called to an account before the surrogate, and he has given the one-half of this fund to the brother of the deceased and the other half to his sister.

From this decree of the surrogate the grandchildren of the deceased brother have appealed, and claim now, as they did before the surrogate, that they are entitled to the one-third of the fund. The distribution of the estate of intestates seems to have been first regulated by the law of the Twelve Tables at Rome. It was then provided that if a pater fcurmUas died intestate and left no lineal descendants through males under his power to take the succession, his nearest agnate, that is, his nearest male relation by his father’s side, should have the succession. This rule was changed bythe 118th Novel of Justinian, which provided for them ranks of successors. First, descendants; second, ancestors; third, collaterals, and, failing, descendants and ancestors. This novel provided that there come first brothers and sisters of the whole blood, and following them brothers and sisters of the half blood generally. The children of a deceased brother or sister represented their father or mother, and succeeded jointly with the surviving brothers and sisters, but grandchildren did not represent them parents.

Failing, brothers and sisters, or children of brothers and sisters, the blood relation nearest in degree, succeeded, and if there were several in the same degree, they succeeded per capita.

The statute of 22 and 23 Charles II was prepared by Sir Walter Walker, who was a civilian of great eminence, and Sir William Blackstone acknowledges with reluctance that the doctrine and limits of representation, as laid down in this statute, seems to have been principally borrowed from the civil law of Rome. By that statute, as explained by the 29 Charles II, it was enacted that the estates of intestates, except married women, should be distributed, one-third to the widow and the residue in equal proportions to the children, or, if they were dead, to their lineal descendants; if there were no children nor legal representatives, then a moiety went to the widow and a moiety to the next of kindred in equal degrees, and their representatives. If there was no widow, then the whole went to the children, and if there was neither widow nor children, then the whole was distributed among the next of kin in equal degrees, and their representatives; but no representation was admitted among collaterals further than the brothers and sisters of the intestate. Our statute of distribution is founded upon the English statute of Charles, and so far as that portion of it which is involved in this case is concerned, is like it, and provides that no representation shall be admitted among collaterals after brothers’ and sisters’ children. (§ 90, subd. 11.)

In this casé the claimants, instead of being a brother’s children, are grandchildren of a half-brother. • There is no difficulty, however, on this last point, for our statute provides that relatives of the half blood shall take equally with those of the whole blood in the same degree ; but the objection raised to the distribution of any portion of this fund to these grandchildren is that they are one degree beyond the statute.

For the purpose of removing the obstruction thus thrown in the way ctf these grandchildren, they refer to the fifth subdivision of the same section of the statute, which provides that, in case there be no widow and no children and no representatives of a child, then the whole surplus shall be distributed to the next of kin in equal degree to the deceased and the legal representatives.

The ease at bar, in its facts, falls within this subdivision of the statute, and the contention is that it must be controlled by it, and but for the eleventh subdivision of the section, above quoted, the proposition would be unanswerable, for, beyond all doubt, if the statute had stopped here, these grandchildren of the deceased brother of the intestate would have taken. To give this eleventh subdivision of this section the full force of its intention, however, it must be held to cut off all representation among collaterals, with a single exception in favor of brothers’ and sisters’ children.

The reason for this statutory rule is not satisfactory. It has been supposed to have had its origin in the 118th Novel of Justinian, which elevated the brothers and sisters to the first degree, and so gave them a preference over grandparents, who stand in the second degree; but how this can be applied to the case of brothers’ and sisters’ children is not so easily perceived.

It is not necessary, however, to find out the reason for this statutory rule, as it is more important to find the legislative intent than to find the reason which induced and controlled it. If there was any difficulty in this case on principle there is such abundant authority on the question as to preclude all hesitation. The English statute has been frequently under consideration, and has always been construed so as to exclude all collateral representation beyond brothers’ and sisters’ children. In considering this statute Chancellor Kent, in his Commentaries, vol. 2 [m. p.], 425, says: “As the statute of distribution says that no representation shall be admitted among collaterals after brothers’ and sisters’ children, it was held in Pett v. Pett (1 Salk., 250), that a brother’s grandchildren could not share with another brother’s children. And, therefore, if the intestate’s brother A be dead, leaving only grandchildren, and his brother B be dead, leaving children, and his brother C be living, the grandchildren of A will have no share, and cannot take.” A similar doctrine is held in relation to our own statute, in the case of Doughty v. Stillwell (1 Bradf. R., 302), and in Hallett v. Hare (5 Paige, 316). So far as our researches have extended the English decisions are all the same way; and though the counsel for the appellants insists that they ought not to have any control in the construction of our statute, yet we think the English statute is substantially like oursj and that those decisions are entitled to great consideration. '

In no view of this ease, that we can take, can these grandnieces of the intestate be admitted to representation, and the decree of the surrogate must therefore be affirmed, with costs.

Barnard, P. J., and Gilbert. J., concurred.

Decree of surrogate affirmed, with costs.


text:
    PATRICK McMAHON, Respondent, v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

      Bepaw of streets — contract made by public authorities with raitt'oad compcmy as to —party injured may enforce.

    While the plaintiff was driving in that portion of Second avenue occupied by the defendant’s tracks, one wheel slipped into an excavation between the tracks, whereby he was thrown from his truck and injured. The excavation was made in order to connect with, the sewer, by an adjoining property owner, who had notified defendant of his intention to make-the same, whereupon the defendant bridged it over, so that horses could pass. The defendant had agreed with the city “to pave the streets, in and about the rails, in a permanent manner, and keep the same in repair.” Held, that the contract made by the city inured to the benefit of the plaintiff, and that he was entitled to enforce it.
    Appeal from a judgment iu favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of tbe justice before whom tbe action was tried.
    On tbe 4th of February, 1876, plaintiff, in company with George Grau, was driving three horses attached to a beer wagon up Second avenue, in New York city, upon tbe up or rigbt-band track of defendant’s railroad, tbe rigbt-band or off wheels of tbe wagon running in tbe groove of tbe eastern rail, and tbe left-hand wheels running just outside of tbe left-hand rail of tbe up-track, between tbe up-track and tbe down-track, which, at this point were about seven feet apart. As they approached Seventy-eighth street, tbe left-hand wheels of tbe truck sbpped into a deep trench running under tbe street, which was concealed at tbe time by a covering of snow, and plaintiff was hurled from tbe seat on which be was sitting to tbe ground, and sustained injuries which were admitted to be of a permanent and serious character.
    It appeared that one Hiss bad commenced this excavation for tbe purpose of connecting bis bouse with tbe sewer, and bad notified defendants, in advance, that be was going to dig under them tracks; whereupon tbe railroad company bad taken up tbe street pavement for six or seven feet on each side of tbe trench from tbe space between their tracks, and bad laid down in its place planks or joists to bridge it over.
    JBy their agreement with tbe city of New York it was made a condition of tbe grant of defendants’ franchise, that “ tbe said company should pave tbe streets in and about tbe rails in a permanent manner, and keep tbe same in repair, to tbe entire satisfaction of tbe street commissioner, and that all tbe rails should be laid down in such a manner as to cause no impediment to tbe common or ordinary use of tbe streets and avenues for all other purposes.” .

      Ausimi G. Fern and Waldo Ekotelmbs, for tbe appellant.

      F. A. Ward, for the respondent.
    Having made this covenant with the city as the express condition of, and sole consideration for, a grant, they thereby voluntarily assumed the obligations which the •city owed to the public as respects that portion of the street which is embraced between their double tracks, and over which they have absolute and exclusive control. (City of Brooklyn v. Brooklyn City JR. JR. Go., 47 N. V., 485.) The liability of the covenantor is not confined to cases of ordinary and gradual wear and decay, but extends to injuries occasioned by the elements, tempests, accidents and the acts of third persons. (Beach v. Cram,, 2 N. V., 95; Taylor on Landlord and Tenant [6th ed.], § 364; McIntosh v. JLown, 49 Barb., 550; Philli/ps v. Stevens, 16 Mass., 238; Platt on Covenants, 275 ; Myers v. Brums, 33 Barb., 405 ; Cook v. Champlain Transportation Co., 1 Den., 104.)
   Dykman, J.:

This is an action brought to recover damages for injuries sustained by the plaintiff from the negligence of the defendant. As the plaintiff was driving a wagon along the avenue where the defendant’s track was laid, one of the wheels of the wagon slipped into an excavation made under the track, the plaintiff was thrown from his seat and received the injuries complained of, which were very serious. The excavation had been made by a property owner on the avenue, by permission from the city authorities, for the purpose of making a connection with the sewer. The defendant had entered into an agreement, in writing, by which it was bound to pave the streets in and about the rails in a permanent manner, and keep the same in repair. The defendant had laid timbers over the excavation, and the plaintiff’s testimony tended to show that the wheel of the wagon broke through or went through these timbers.

The judge at the Circuit, in his charge, submitted it to the jury to find whether the excavation was made in a part .of the street which the defendant undertook to keep in repair by the contract with the city, and if it was, and the defendant had failed or had been negligent in the performance of the duty imposed by that contract, and the injury to the defendant resulted therefrom, he had a remedy against the defendant.

He further charged that if the property owner, as he testified, notified the defendant of fiis intention to connect with the sewer and make the excavation, and the defendant assumed the duty of protecting the public against its consequences, and thereby released the property owner from the obligation which the law cast upon* him to protect the public against accident, and had been negligent in the performance of the duty so assumed, then a liability ensued. There seems to have been no claim that any negligence of the plaintiff contributed to the injury.

The defendant’s counsel moved to dismiss the complaint, and requested the court to charge that the defendant was not.liable upon the facts proved. Both were very properly denied, and there is no legal objection which can be raised to the charge as made.

The duty of keeping the streets in a city in repair is imposed primarily upon the municipal authorities, by reason of the power vested in them to control and repair them. The functions which are usually discharged by officers of the city or State may be performed by other persons than officers, and in such cases the contract made with the public authorities is deemed to inure to the benefit of all persons interested in its performance. The case of Robinson v. Chamberlain (34 N. Y., 389) was decided on this principle. In that case, the defendant was employed by the State to keep a portion of the canals in repair, and neglected to do so, and the plaintiff sustained damages by reason of such negligence. The court held the defendant liable for the injury, and enunciated the doctrine that a contractor who engages to perform the duties of a public officer is liable to the same extent as an officer upon whom the law imposes this duty.

The City of Brooklyn v. The Brooklyn City Railroad Company (47 N. Y., 475) was a case where' the defendant had made a contract with the city to keep the pavement in repair within the tracks, and three feet on each side of them, and from failure to do so the city had been made liable to a person for injuries sustained by reason of such negligence, and then brought that action to recover the damages so sustained. The coux’t held the defendant liable, and laid down the principle, substantially, that where one contracts with a municipal corporation to keep any portion of the stx*eets in repair’, he, in effect, contracts to pex’fox’nx that duty to the public in the place and stead of the municipality.

This principle is certainly broad enough to include this case, and, as we think no error was committed on the trial, the judgment must be affirmed, with costs.

Barnard, B. J., concurred; Gilbert, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


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    JOHN G. JENKINS, Appellant, v. MICHAEL FAHEY, Respondent.

      Beal estate of inf amt — sale thereof — possession Try the imfamt in fact or la/w — necessary to authorize.

    Under tlie statute providing for the sale of the interest of an infant in real estate, a sale can only he ordered in those cases in which the infant is in the actual possession of the land, or entitled to the immediate possession thereof. Expectant estates and estates in remainder cannot he sold thereunder.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      John M. Stearns, for the appellant.

      Thomas F. Jaokson, for the respondent
   Dykman, J.:

The plaintiff in this action made an agreement in writing with the defendant to sell and convey to him two lots of land in the city of Brooklyn, and afterwards tendered him a deed of conveyance for the same in execution of the agreement. This the defendant refused to accept, by reason of certain objections to the title.

This action is now brought for a specific performance of that agreement; it has been tried before a referee who re^prted in favor of the defendant, and a judgment has been entered upon the report from which an appeal has been taken to this court.

We are thus confronted with the question whether the objections raised against this title have any foundation in its history, which is as follows : Francis Titus died, in the year 1836, seized of a farm which included these lots, leaving a last will and testament which contained the following provision:

“ First after all my lawful debts and demands and funeral expenses are paid and satisfied, which I direct to be done in due season by my executors hereinafter named, I do give and bequeath unto my daughter Cornelia all my estate, personal and real, except the following sums: ”
Then after giving some legacies to relatives, the will proceeds as follows: all my remaining property, dwelling house, lands, outhouses, furniture, moneys, moveables, etc., I give, devise and bequeath to my daughter Cornelia for her support and comfort, to be held and controlled by her and at her death, to pass to her heirs or, if she leaves no heirs, to be disposed of by her will to whom and for what purpose she may deem right and proper.”

This will received a judicial construction in our highest court, in the case of Taggart v. Murray (53 N. Y., 233), which was, that the gift in the first clause was qualified and limited by the residuary clause; that the will gave to the daughter an estate for life in'the lands of which the testator died seized, with remainder to her issue living at her death, and with power, in default of issue, to appoint the fee by will, and that therefore, a conveyance by the daughter and her living children, did not give an absolute title to such lands, as it was subject to the contingency that children might thereafter be born, who would take an interest as purchasers under the will.

Before 1848, Cornelia Titus, married Simon Phelps, by whom she had three children, all of whom are now living, but she is dead, and her husband also. In 1847, Cornelia and her husband conveyed these lots to James 'Waterburry, and subsequently the same title came to "William Layton, Lawrence Waterburry and Julia "Wateiv burry. Theirs was an estate for the life of Cornelia.

In 1861, John F. Phelps and Maria Louisa Phelps, two of the children of Cornelia, executed quit-claim deeds of conveyance for these lots with others, to Alvah 0. Bush, reciting therein that they were intended to grant all their right, title and interest, conditional, contingent, in remainder or otherwise, in and to the lands of which Francis Titus died seized. In the same year, Ida 0. Phelps, the other child of Cornelia, then an infant under twenty-one years of age, in pursuance of proceedings under the statute for that purpose, conveyed all her interest in the premises to Mr. Bush, the same grantee.

In 1814, William Layton, brought an action for a partition of these and the other lots, in which he made Bush and the Waterburrys defendants. Bush was a non-resident of the State, and an order was obtained in the action, for the service of the summons on him by publication, and he was served personally out of the State, but did not appear in the action. The cause proceeded to judgment, and under it the premises in question were sold to the plaintiff, who received the referee’s deed therefor, and then made the agreement with the defendants which has been mentioned.

It results from this statement that Layton and the Waterburrys, took only an estate in the premises for the life of Cornelia, for the very simple reason, that she had no other to give, and she was their only source of title. Whatever, therefore, the plaintiff took from them has passed away with her, and if he got no other title by the sale, then he has none to give to the defendant under his agreement.

It will be well to determine, in the first instance, what Bush took under his deed from the special guardian of Ida C. Phelps, for if he did not become vested with her interest under that conveyance, then, as she was not a party to the partition suit, her interest in the property is still outstanding and then this action must fail.

Our statute under which that proceeding was taken provides, that any infant seized of any real estate or entitled to any term for years in any lands, may, by his next friend or by his guardian, apply to the Supreme Court or a County Com-t, for the sale or disposition of his property, in the manner hereinafter directed (2 K. S., 194, § 170), and the power of the court to order the sale of the real estate of an infant, is derived entirely from this statute.

There was no original or inherent power in the Court of Chancery to direct the sale of the real estate of an infant, and there is none in this court. (Rogers v. Dill, 6 Hill, 415.) To authorize the court to direct a sale, the infant must be seized of the property, and this word seizin” at the common law signifies possession. It is of two kinds. Seizin in deed, which is actual possession of the freehold ; and seizin in law, which is a legal right to such possession.. Now at tbe time of tbe application to tbe court for permission to sell ber real, estate, Ida C. Pbelps was not in tbe actual possession of tbe land, nor bad sbe tbe legal right to sucb possession, and her case could not, therefore, be brought under tbe statute. This word seizin ” was used designedly by tbe legislature in this statute for tbe purpose of preventing sucb applications in sucb cases. This statute was only intended to be used in a case where tbe infant was either in tbe actual possession of tbe land or entitled to immediate possession, ■so that possession could be given to tbe purchaser at once on tbe sale being made. If tbe expectant estates of infants could be sold under tbe statute, tbe practice would be bable to very great abuse, and their property would be liable to be sacrificed to tbe interests of bfe-tenants, who, in many instances, have them under absolute control. We have no hesitation, therefore, in bolding that tbe interest of this infant was not divested by tbe sale, under tbe order of tbe court, to Bush.

There are other objections to this title which are very serious; but as we tbiulr this sufficient to justify tbe defendant in refusing to accept it and cany out bis agreement, tbe judgment must be affirmed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Judgment affirmed, with costs.


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    RICHARD BURKE, Appellant, v. De CASTRO AND DONNER SUGAR REFINING COMPANY, Respondent.

      Negligence — remedy of pa/rty iiyjw'ed, by — liability of pan-ty renting impmfect machines.

    The defendant owned a wharf upon which was a derrick owned by it and worked by an engine in its building. A vessel loaded with sugar consigned to defendant, having arrived at the wharf, her master contracted with a stevedore to unload her, and the latter, in order to do so, hired the derrick and engine from the defendant by the hour. The plaintiff, an employe of the stevedore, was, while working in the hold, struck and injured by a basket of sugar which was being hoisted from the ship, and which fell through the hatch by reason of

      the breaking of the rope to which it was attached. The rope belonged to, and was furnished by the defendant, and evidence was given tending to show that it had broken before and that defendant’s engineer had knowledge of the fact. In an action by plaintiff to recover damages for injuries so sustained, held, that the defendant owed the plaintiff no duty in regard to the machinery rented to his employer, and that the action could not be maintained.
    Where an act of negligence is eminently dangerous to the lives of others, the guilty party is liable to any person injured thereby, whether there exist any privity between them or not. Otherwise the negligent party is liable only to the person with whom he contracts.
    •Apreal from a judgment in favor of the defendant, entered upon ' a verdict directed by the court.

      S. 0. Soutlmorth, for the appellant.

      A. P. Whitehead and M. W. Pivvne, for the respondent.
   Dykman, J.:

In August, 1815, there came a vessel to the defendant’s wharf, in the city of Brooklyn, to discharge a cargo of sugar which was consigned to them, and which, by the bill of lading, was to be delivered to them upon their wharf by the master of the ship. The master of the vessel contracted with a stevedore of the name of Smith to deliver the cargo upon the wharf by the ton, and the plaintiff was employed by Smith to assist in the discharge of the cargo. The sugar was hoisted from the hold of the vessel in baskets by a rope running over a derrick and through pulley-blocks to a drum, near to an engine, which was in a building belonging to the defendant. The engine, and all the apparatus for hoisting, also belonged to the defendant, and were all operated by an engineer in its employ, and were rented to Smith by the hour to be so operated to unload this vessel.

While the plaintiff was in the hold of the vessel placing baskets of sugar under the fall, preparatory to their being raised through the hatch and landed upon the wharf, one of the baskets fell upon him and broke his leg and disabled him for life. The fall of the basket was caused by the breaking of the rope, which was attached to it for the purpose of hoisting it up and placing it upon the wharf. There was evidence which tended to show that the rope used all belonged to tbe defendant, except that part which run from the wharf close to the vessel over the derrick, and that this last piece belonged to Smith, and had been spliced on to the main rope which belonged to the defendant. One witness testified that the break which caused the accident was in the rope which belonged to the defendant, and another witness testified that the break was at or near the splice.

The defendant’s portion of this rope had parted three or four times while unloading this vessel, and the superintendent of the defendant knew that it broke once. The evidence tended to show that the men on the dock who were unloading the vessel knew the rope had so parted, but the plaintiff did not.

The plaintiff brought this action against the defendant to recover the damage for his injury, and the cause came on for trial at the Circuit. At the close of the plaintiff’s case, his counsel requested the court to submit the question of fact to the jury, with instructions that if the jury found that the rope which broke and caused the injury was the property of the defendant, and rented to Smith as a part of the apparatus to unload the vessel, and was improper and unsafe for the use for which it was so rented, then the defendant was liable for any injury to the employes of Smith. The court refused this request, and directed the jury to find a verdict for the defendant, to which plaintiff took exceptions, and the case is brought here for review.

In determining the case here, we must assume that the jury would have found that the rope which broke and caused the accident was the property of the defendant, and was rented to Smith as a part of the apparatus for unloading the vessel, and with this assumption the question is whether this action can be maintained.

There being no privity of contract between the plaintiff and defendant, if no duty was violated except that which the defendant owed to Smith, under and by virtue of the contract made with him to furnish the hoisting power and apparatus, then this action cannot be maintained. The obligations of the defendant to Smith, whatever they were, arose solely out of the contract between them, and as the plaintiff had nothing to do with it, so he can take nothing under or by virtue of it.

The case of Winterbottom v, Wright {10 Mees and Wels., 109) was much like this. There the defendant made a contract with the postmaster-general to provide a vehicle to convey the mail along a certain line of road, and some other persons made a contract with him to horse the coach along the same line, and they paid the plaintiff to do the driving. In consequence of a latent defect in the coach it broke down, and the plaintiff was thrown from his seat and injured, and it was held by the court that the action could not be maintained, because the defendant’s duty to keep the coach in good condition was a duty to the postmaster-general under his contract, and not a duty to the plaintiff, who was employed to do the driving by the owner of the horses.

Did the defendant owe any duty to the plaintiff ? The negligence of the defendant, in furnishing an unsafe apparatus for hoisting the sugar, furnishes no cause of action to the plaintiff, unless it establishes a breach of duty. There is a well-recognized distinction in the law between an act of negligence which is eminently dangerous to the lives of others and one that is not so. In the former case, the guilty party is liable to any person who sustains an injury by the act, whether there exists any privity between them or not, while in the latter case, the negligent party is liable only to the party with whom he contracted, on the ground that his negligence constitutes a breach of his contract.

The defendant cannot .be made liable under the first part of the rule here stated, because it cannot be said that the act of which it was guilty was imminently dangerous to the lives of others. Acts within that meaning are, where the owner of a loaded gun puts it in the hands of a child of indiscretion Dixon v. Bell (5 Haul. & Sel., 198), and where a dealer in drugs carelessly labels a deadly poison as a harmless medicine, and sends it so labeled into the market. (Thomas v. Winchester, 6 N. Y., 397.) In both of these cases the party is liable to any person who sustains damages from the carelessness, for the reason that death or great 'bodily harm is almost certain to ensue therefrom.

The negligence of this defendant, however, was not of this character, and does not fall within this rule. It was neither natural nor certain that injury or death would result therefrom, and only imposed a liability in cases where a duty or obligation arose from the relation of the parties; but the plaintiff and defendant sustamed no such relation. If the plaintiff has a cause of action against the defendant, he has against the vendor’ or manufacturer of the rope also. No case has yet gone to this extent, and there are many cases where the liability has been denied which involved this jirinciple. It cannot be said that the motive power and the hoisting apparatus were under the control of the defendant. It is true all of it belonged to the defendant, but it was hired to the stevedore, and was all under his control and direction, together with the engineer who had charge of the engine.

Whatever the duties and liabilities were which existed between the plaintiff and the stevedore, and whatever liability over to him there was against the defendant, as to him, we conclude that the plaintiff cannot maintain this action against the defendant, and that the judgment must be affirmed, with costs.

Present —• Barnard, P. J., and Dykman, J.; Gilbert, J., not sitting.

Judgment affirmed, with costs.


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    J. T. E. LITCHFIELD and H. C. LITCHFIELD, Respondents, v. CAROLINE DEZENDORF, Appellant.

      Action agwinst ma/rried women —• is an action at law — Jwry trial.

    The complaint herein alleged that defendant was a married woman and possessed of a separate estate; that plaintiff sold to her building materials; that the same were used for the benefit of her separate estate in the erection of buildings thereon, and judgment was demanded for the amount due, and that her separate estate be applied to the payment of the same, and that for that purpose a receiver thereof be appointed. Eeld, that the action was an action at law, and defendant was entitled to a trial by jury.
    Appeal from an order denying a motion made by the defendant, to strike this action from the calendar of the Special Term of this court.

      J. Stewcvrt Boss, for the appellant.

      Geo. V. Brower, for the respondents.
   Dykman, J.:

The complaint in this action alleges, that the defendant is the wife of John Dezendorf, and is the owner in fee of a lot of land described in the complaint. That the plaintiff sold and delivered to the defendant, at her request, lumber and other building materials, of the value of $901.97; that no part of the same has been paid, except $400; that said materials were furnished for the benefit of, and did benefit, the separate estate of the defendant, and were used in the erection of four buildings on said premises. That there is now due and owing from the defendant to the plaintiffs for said materials, the sum of $500 with interest from the 18th day of May, 1876. Wherefore, the plaintiffs demand judgment against the defendant, for this last-mentioned suin, with interest and costs, and that said separate estate be applied to the payment of the said sum,. and that a receiver be appointed to take possession of the same for that purpose. The summons was for relief.

Thfe answer of the defendant admits that she is the wife of John Dezendorf, and is the owner of the premises described in the complaint ; and denies each and every allegation in said complaint, not specifically admitted. The cause was placed on the calendar of the Special Term of the Supreme Court for trial, on the 4th Monday of December, 1876; and a motion was then made, to strike the same from the calendar, which was denied, and an appeal has been taken from the order of denial.

The motion to strike the cause from the calendar was based on the ground that the defendant was entitled to a trial by jury, and whether she is so entitled depends upon the question whether the action is at law or in equity. The allegation of a separate estate in the defendant; that she is a married woman, and that the materials were furnished for the benefit of her separate estate, are special and proper allegations in a complaint in an action at law against a married woman, and the- demand for a money judgment shows, that this is an action for the recovery of money only. It is true that the complaint also prays for the separate estate to be applied to the judgment, and that a receiver be appointed to take possession of the same for that purpose; but this does not change the fact that the action is one for the recovery of 'money only. Section 274 of the Code provides that in an action brought by or against a married woman, judgment may be given against her as well for costs as for damages, or both for such costs and such damages, in the same manner as against other persons, to be levied and collected of her separate estate, and not otherwise; and section 287 provides that an execution may issue against a married woman, and it shall direct the levy and collection of the amount of the judgment against her from her separate estate, and not otherwise.

These provisions show that the judgment demanded in this action may be entered and enforced against the defendant, precisely as if she was a single woman, by a procedure appropriate only in an action at law.

The action must therefore be considered an action at law. This being so, it needs no argument to show that the action must be tried by a jury unless a jury trial be waived; that right is absolute and one of which the defendant cannot be deprived.

It is quite true, that the distinction between legal and equitable remedies are, to a great extent abolished, since both remedies are now administered in the same courts. We must not sacrifice substance to form, but when an issue of fact is joined in an action to recover a judgment upon an account or claim for goods sold and delivered, it is not in accordance with our law to deny either party a trial by jury. -It is more than form and cannot be withheld by the court. If these views are correct, then the defendant could not be forced to trial at the Special Term, and the motion to strike the cause from the calendar of that court should have been granted.

The order appealed from must be reversed, with costs and disbursements to abide event, and case sent to Circuit for trial.

Barnard P. J., concurred; Gilbert, J., not sitting.

Order reversed, with costs and disbursements to abide event, and case sent to Circuit for trial.


author: Barnard, P. J.:

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    JOHN C. T. SMIDT, Appellant, v. PETER A. H. JACKSON, Respondent.

      Mortgage — wTiere a deed is found to be — Tiow mortgagor's (grantor’s) rights foi'eelosed.

    Where a deed, absolute upon its face, is found by the court to be a mortgage, the mortgagor is entitled to have the premises sold thereunder in the usual way. An order allowing the plaintiff to redeem before a certain time, and in case of his failure so to do providing that the deed be considered absolute, is error.
    Appeal by plaintiff from so much of an order at Special Term (February 24, 1877) as provided, “ but that in case tbe said plaintiff shall fail within said time to pay said sum and redeem said premises, then and in that case the conveyance of said premises, referred to in said complaint, shall be deemed to be an absolute deed and conveyance.”
    The order was made on the return of an order to show cause why an injunction, restraining the defendant from instituting or prosecuting any proceeding or action at law, or otherwise to dispossess the plaintiff of certain land, and for other relief, should not be continued. The complaint asked judgment that a certain deed be declared a mortgage, and that plaintiff be given an opportunity to redeem therefrom. The order appealed from decided that the transactions set out in the complaint, constituted a mortgage ; gave the plaintiff till May 1,1877, within which to redeem, and in case of his failure so to do, provided that the conveyance of said premises should be deemed to be an absolute deed.

      Allan Lee Smith, for the appellant.

      G. S. (& J. K. Stitt, for the respondent.
   Barnard, P. J.:

The plaintiff, upon the motion papers, made out a clear, presumptive case that the transaction between the parties was a loan, though in form a sale. This was denied by the defendant, but in order that the condition of the property should not be changed by the defendant, pending the litigation, an injunction was proper. The court, at Special Term, held on February 24, 1877, granted an injunction to continue only until the 1st of May, 1877. The order gave the defendant a right to redeem until that time, by paying the sum advanced by plaintiff to defendant, with interest, and contained also this provision: “ But that in case the said plaintiff shall fail within that time to pay said sum and redeem said premises, then, 'and in that case, the conveyance of said premises, referred to in said complaint, shall be deemed to be an absolute deed and conveyance.” From this part of the order the defendant appeals.

Assuming that the conveyance was in fact given for a loan (and the court so determined on the motion papers), that part of the order appealed from, cannot, I think, be upheld. If the deed is held as a mortgage, then the defendant is entitled to a sale of the property in the usual way. He may not be able to pay the amount by a given day, but a public sale may call out some one who will pay the value of the premises. The value is shown by the papers to be nearly or quite double the amount advanced by plaintiff. That part of the order appealed from reversed, with ten dollars costs and disbursements to abide the event of the action.

Gilbert, J., concurred.

Present — Barnard, P. J., and Gilbert, J.; Dykman, J., not sitting.

Part of order appealed from reversed, costs to abide event.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CASPER C. CHILDS, Jr., Respondent, v. GEORGE W. CARTWRIGHT, President of the Village of Sing Sing, Appellant.

      Contempt of cowi’t — punishment for— interrogatories — when they need not be filed.

    Tbe provisions of tbe statute, in relation to contempts, providing that when tbe defendant shall have been brought into court upon an attachment, the court shall cause interrogatories to be filed, specifying the facts and circumstances, and require him to answer the same, are only applicable to cases in which the act or omission constituting the contempt is either denied or not admitted ; and when such act or omission is expressly admitted by the defendant, it is unnecessary that interrogatories should be filed.

      Appeal by defendant from an order adjudging him guilty of contempt of court.
    A writ of mandamus was served on tbe defendant, commanding him to sign a certain draft upon the treasurer of the village of Sing Sing for the payment of seventy-two dollars and seventy-five cents to the relator. The defendant did not sign the draft.

      I. T. William,s, for the appellant.

      /Samuel Watson, for the respondent.
   Dykman, J.:

A writ of mandamus was served on the defendant on the 12th day of January, 18JJ, commanding him to sign a certain draft, or show cause at Special Term on the twentieth day of the same month. The defendant did not sign the draft on the twentieth day of January, neither did he appear to show any cause for not doing so, and upon the return of the writ on that day, and also upon proof of the service of it, and that its requirements had not been complied with, an attachment was ordered on the same day against the defendant, returnable on the twenty-seventh day of the same month. The defendant signed the draft on the twenty-third day of January, and on being brought before the court on the attachment, on the twenty-seventh, so far purged his contempt that no punishment was imposed upon him therefor, but he was required to pay the. costs of the proceedings, amounting to thirty-four dollars.

Now, although the defendant seems to have had no intention of treating the order of the court with disrespect, yet he had not complied with it on the twentieth, and an attachment was the appropriate method of enforcing obedience thereto, and that was the proper time for it to issue. The proceeding, therefore, was entirely regular' and proper down to that time.

Objection is now made that the conviction was not legal, because no interrogatories were filed, and the statute does require that when any defendant, arrested upon an attachment, shall have been brought into court, or shall have appeared therein, the court shall cause interrogatories to be filed, specifying the facts and circumstances against the defendant and requiring his answer thereto.

This statute, however, contemplates a case in which the act or omission, constituting the contempt, is either#denied or not admitted ; whereas, in this case, the omission to sign the draft stood confessed, and the order shows that the defendant appeared on the return day of the attachment, and admitted that he had not complied with the requirements of the.writ of mcmdcmms. Surely it was not necessary, after this admission, to enter into interrogatories which could only have for their object the eliciting of this same confession.

It cannot be held that the legislature has prescribed a certain formula to be observed in all cases, whether there is any necessity for it or not.

The object of the statute is to prescribe a mode of getting something tangible on the record upon which the court can act — some evidence that the party proceeded against is guilty of a contempt. In this case, the same end had been attained before the order was made, and there was no necessity for any interrogatories.

The judge, making the order, exercised a very lenient discretion in favor of the defendant, and only obliged him to pay the costs and expenses which had been incurred in consequence of his failure to obey the command of the court, contained in the writ of mcmdamus ; certainly nothing less could have been required. The costs had been made and it was proper they should be paid, and as the defendant had caused them to be made, it was but just that he should pay them. We find no error, and the order appealed from must be affirmed, with costs.

Gilbert, J.,' concurred; Barnard, P. J., not sitting.

Order affirmed, with costs and disbursements.