text:
    Estate of Burgess Cluff, Deceased.

      (Surrogate’s Court, New York County,

      Filed February 1, 1887.)

    1. Surrogate’s court—Appeal—Security for costs must be filed— Code Civ. Pro , § 2577.
    To render effectual an appeal from a decree of a surrogate directing an executor to pay or deposit money or to deliver property, an undertaking for costs of at least $250 must be given as provided by Code Civ. Pro., § 2577.
    3. Same—Revocation of letters testamentary—Appeal.
    To render effectual an appeal from a decree of a surrogate revoking letters testamentary and removing an executor from his office as trustee, an undertaking must be filed. Following, Fernbacher v. Fernbacher, 4 Dem., 246.
   Rollins, S.

The decree herein, on September 30, 1886, revoked the letters testamentary of Edward E. Tower, executor of this estate, and removed him from his office as. trustee under his testator’s will. It also settled and adjudi - cated his account, and directed him to make immediate deposit in this court of the sum of $10,037.98, being the principle or corpus of the estate in his hands, and to pay to Mary Cluff the sum of $2,050.76 due her as income. It still further directed him to deliver said Mary Cluff a certain promissory note, and to pay as costs taxed against .him the-sum of $868.04. This decree was duly served upon the executor’s attorneys on October nineteenth.

The executor had the right to appeal, therefore, at any time during the thirty days then next ensuing. Notice of appeal was served by his attorney before the thirty days had expired. After the expiration he applied ex parte to the-surrogate for an order giving him time in which to make a case. By an order entered on November twenty-sixth he-was allowed twenty days for that purpose.

Counsel for Mary Cluff now moves that that order be vacated, on the ground that at the time it was granted the-would-be appellant had neglected to file any undertaking, and that his notice of appeal had, therefore, become utterly ineffectual.

This, contention is unquestionably sound, so far as it relates to the provisions in the decree of September thirty, which revoke the respondent’s letters testamentary and remove him from his office as trustee. To perfect an appeal from a decree of that character the filing of an undertaking is absolutely essential. Fernbacher v. Fernbacher, 4 Dem., 227.

Whether or not the moving party is correct in claiming that failure to file an undertaking has made inoperative the respondent’s effort to appeal from those portions of the decree which direct the delivery of property and payment or deposit of moneys, is a question more difficult of solution.

Counsel for the respondent claims that, although an appeal for a decree containing such directions cannot, in view of the provisions of sections 2578 and 2580 of the Code of Civ. Pro. operate as a stay of execution, except upon the filing of an undertaking in a sum not less than twice the sum directed to be paid or deposited, etc., it may nevertheless be operated for all other purposes without the interposition of any undertaking at all.

When the second part of the Code of Civil Procedure first came upon the statute book, an appeal from a surrogate’s decree containing such directions as are here the subject of consideration, was declared by section 3578 to be “not effectual for any purpose,” in the absence of the special undertaking for which that section provided—an undertaking sufficient in amount to secure not only such costs and damages as might be recovered against the appellant, but the payment or deposit of money, or the delivery of property directed by the decree appealed from.

It was at the same time declared by the next preceding section (section 2577), that “to render a notice of appeal (that is, any notice of appeal) effectual for any purpose except in a case specified” in section 2578 (ante), * * * the appellant must give a written undertaking with at least two sureties to the effect that he would pay all costs and damages (to an amount not exceeding $250,000) which might be awarded against him upon the appeal.

(In the place indicated above by asterisks there is set forth another restriction upon the operation of section 2577. This restriction will be ignored as foreign to the purposes of the present inquiry).

On July 1, 1882, the legislature amended section 2578, by substituting in place of the words “is not effectual for any purpose” the words “does not stqy the execution of the decree appealed from.”

The respondent claims that so far as regards the direction of the decree of September thirty for payment, deposit and delivery, this case is not within the purview of section 2577, because it is “a case specified in the next section,” and that by that section, as it now stands, no undertaking is required, save for the purpose of effecting a stay of execution.

An interpretation of the act of 1882, so out of harmony with the general scheme of appeals from surrogates’ decrees which is established by article 4 of chapter 18 of the Code, should not be countenanced unless it is absolutely demanded by the phraseology of the amending statute.

Before subjecting that phraseology to critical examination it may be said in general that its apparent purpose was to relieve executors, administrators, testamentary trustees, guardians, etc., from a hardship to which they had been theretofore subjected—the hardship of giving a bond in double the amount involved in a proceeding culminating in a decree containing some such direction as is specified in section 2578, as a condition precedent not merely to a stay-'' of execution, but to the exercise of the privilege of appeal.

It would seem, in other words, that the legislature intended to say to a would-be appellant from a decree directing the payment or deposit of money or the delivery of property—“You must give an undertaking proportioned to the amount of money which you are directed to pay or deposit, or to the value of the property which you are directed to deliver, if you wish, pending your appeal, to avoid compliance with the decree appealed from; otherwise you must give such an undertaking as is ordinarily required as security for the payment of costs and damages that may ultimately be awarded against you.”

I think that this construction may be put upon sections 2577 and 2578 as they now stand without violence to their language. It seems to me that as regards a case like the present the following is a fair paraphrase of section 2577 as it was originally enacted and as it stands unaltered to-day: ‘ ‘ To render a notice of appeal effectual for any purpose, the appellant must give a written undertaking in the sum of $250, except in cases which are, by the next section, excepted from the operation of this, i. e., except in cases where the giving of an undertaking regulated by the amount of money directed to be paid or deposited or the value of the property directed to be delivered, is, in the next section, declared to be essential for rendering a notice of appeal effectual for any purpose.”

If this is "the true interpretation of section 2577, what was the effect of the amendment of 1882 % Simply this, that since its adoption section 2578 has ceased to specify any cases that fall within the category of exceptions to section 2577. In other words, the amendment to section 2578 has made altogether ineffective—has indeed actually extinguished—such exceptions to the operation of 2577 as had been worked by section 2578 before it was subjected to amendment. As a case like the present would no longer fall within any exception to the rule of section 2577, it would now fall within the rule itself, and no notice of appeal would be effectual for any purpose unless an undertaking were given in the sum of at least $250.

I hold that this is the law, and that on the day of the entry of the order giving this respondent time to make and serve a case of exceptions, his right to perfect his appeal had expired by limitation, thirty days having elapsed from the service of the decree without his filing an undertaking.

The order of November twenty-six must, therefore, «be vacated.


source: Caselaw Access Project

author: Rollins, S.

license: Public Domain

text:
    Matter of the Application for the Probate of the Alleged Will of Mary Phelam, dec’d.

      (Surrogate’s Court of New York County,

      Filed February 23, 1887.)

    Will—When an instrument offered for probate is not entitled to PROBATE
    Upon the presentation for probate of an instrument purporting to be the last will and testament of. a decedent Held, That assuming that the decedent was not altogether incapable of making a will, yet the proof not being satisfactory that her free and intelligent testamentary purpose found expression in the instrument offered, it was not entitled to probate
   Rollins, S.

—If the paper propounded as the last will and testament of this decedent shall be established as such, her entire estate, which seems to be of the value of some hundreds of dollars, will be discovered to have passed at her death to Mrs. Annie Ridal, her niece and one of her next of kin. Three other nieces of the decedent survived her, one of whom is the contestant in this proceeding The instrument in dispute was executed on December 5, 1885, at 85 East One Hundred and Tenth street, the dwelling house of its sole beneficiary. In that house the decedent had taken up her residence a few days before, and there, within the following month, she died at a very advanced age. She was a woman of grossly intemperate habits, and so eccentric in her conduct and demeanor as to attract attention and occasion remark wherever she went. In the public streets people were wont to accost her as “ Crazy Mary.”

Many witnesses testified to her practice of -muttering to herself and of staring vacantly about her as she walked. Her memory seems to have been very defective. She would often lose her way in a quarter of the city with which she must presumably have been familiar. Her acts and conversation were characterized by several disinterested witnesses as irrational and half crazy.

I shall not review in detail the evidence tending strongly to show her lack of testable capacity; for, even if it be assumed that she was not altogether incapable of making a will, I am not satisfied upon the evidence that her free, intelligent testamentary purpose finds expression in the paper before me.

Its two subscribing witnesses are Charles G. Shirmer, its draftsman; and Frederick S. Ridal, the husband of its proponent and universal legatee.

If Mr. Shirmer’s testimony is to be credited, and I see no reason to distrust it in the least, he drew the will at Ridal’s request and in pursuance of Ridal’s instructions, supposing that it embodied the wishes and purposes of the decedent as previously expressed to Ridal, but having no knowledge, information or belief upon that subject, save such as he had derived from Ridal himself. Shirmer testifies that he prepared this instrument prior to November 26, 1886, and that on that day, by appointment with Ridal, he took it to the house of the decedent, in Twenty-sixth street, with the design of superintending its execution.

The decedent declined to execute it, saying in explanation of her refusal that her brother had died on that morning. On December fifth, Shirmer, pursuant to Ridal’s instructions, attended with the paper at the latter’s house in One Hundred and Tenth street He read it to the decedent, who declared herself satisfied with it. In answer to Shirmer’s question whether she declared it to be her last will and wished Ridal and himself to act as witnesses, she said that she did.

With this testimony that of Ridal is in irreconcilable conflict. Ridal utterly denies that he ever advised Shirmer that the decedent wanted a will drawn which should make Mrs. Ridal her sole legatee, and declares that the decedent never asked him to procure such a will to be prepared. He insists that until after Mrs. Phelan’s death he was ignorant of the fact that she had made his wife the subject of her bounty, and he would have it believed that because of delicacy or indifference on the subject he had avoided or neglected inquiries as to the contents of the will in whose execution he had participated.

I am very confident that this witness deliberately swore to many things^that he knew to be untrue. The legitimate effect of this false swearing is not merely to render his testimony worthless, but to create a very strong probability that he had much more to do with shaping the provisions of the alleged will than even Mr. Shirmer knows of.

When I consider the advanced age of the decedent, her feeble capacity, the circumstances under which this instrument came into existence, the fact that its terms were dictated to its draftsman by the husband of the sole beneficiary, and that the man who thus procured the legacy in his wife’s favor has had the effrontery to deny it, I am forced to the conclusion which I recently reached in Matter of O’Rourke (6 Surr. Dec., 70), deficit probatio.

Let a decree be entered adjudging that this paper is not entitled to probate.


author: Addington, S.

text:
    Matter of the Probate of the Last Will and Testament of John Baird, Deceased.

      (Surrogate's Court, Monroe County,

      Filed February 28, 1887.)

    Evidence—Probate of will—When admission of legatee or devisee NOT ADMISSIBLE.
    Declarations of one legatee or devisee are not admissible to affect the validity of a will or defeat its probate, when there is any other beneficiary who may. be injuriously afiected by such declarations and who is not jointly interested or in conspiracy with the person making them.
    Fm. E Werner and W. D. Shuart, for proponent; Benton & White, for contestants.
   Addington, S.

In the first hearing of this matter notice was filed by the contestants under section 2618 of the Code of Civil Procedure, requiring the examination of certain persons therein named as witnesses.

There was nothing before me to show that the persons named in said notice could give material testimony in this matter, and in declining to order their examination, I distinctly stated that fact as one reason for my ruling, adding in substance that. in my opinion the statute only contemplated the examination under this section of persons who were present at the execution of the will.

It seems that only the latter remark was taken down by the stenographer, and thus upon making up the case on appeal, the fact that I did not consider the testimony material, failed to appear; and the general term, therefore, were led to suppose that I held the exact contrary of my actual ruling on the question of the materiality of the proposed testimony, and the case on this point was sent back for re-hearing.

The contestants have now had the benefit of the testimony of the three persons named in said notice, and of such other witnessess as they chose to produce.

The only point urged on the present argument of the case, is that the will in question had been procured by the undue influence of the widow, who is one of the principal beneficiaries.

The testamentary capacity of the decedent seems to have been so fully established as to admit of no question, and a careful reading of the testimony, since the trial, has failed' to discover to me any evidence upon which to base a doubt of its existence.

I think also that the evidence wholly fails to sustain the allegations of undue influence under the well-established rules of law concerning that subject. Wade v. Holbrook, 2 Redf., 378; Booths. Kitchen, 3 id., 52, 67; Children's Aid Society v. Loveridge, 70 N. Y., 387; Marx v. Glynn, 88 id., 357; Hazard v. Hefford, 2 Hun, 445; Wilson v. Moran, 3 Bradf., 172.

The will is not substantially different from the one the decedent had made some time before the death of his infant son, and such changes as appear may readily be accounted for on satisfactory grounds.

But, even a radical charge of intention, on the part of a testator, is of no importance, if there is a sound mind unconstrained. Titlow v. Titlow, 54 Penn. St., 216; McLaughlin v. McDevitt, 63 N. Y., 217; Childrens’ Aid Society v. Loveridge, 70 N. Y., 387.

Some testimony was offered by contestants to prove certain declarations alleged to have been made by the widow, both before and after the execution of the will, which, the contestants claimed, tended to show undue influence exerted" by her in procuring the making of the will. This testiwas, for the most part, excluded, according to the legal principle that the declarations of one legatee, or devisee, are not admissible to affect the validity of a will, or defeat its probate, when there is any other beneficiary who may be injuriously affected by such declarations, and who is not jointly interested, or in conspiracy with the person making them. Taylor v. Kelly, 31 Ala., 59; Blakey v. Blakey, 33 Ala., 611, 617; Burton v. Scott, 3 Rand. (Va.), 407; Titlow v. Titlow, 54 Penn. St., 216; Thompson v. Tompson, 13 Ohio St., 356; In re Will of Mary Ames, 51 Iowa, 596, Shailer v. Bumstead, 99 Mass., 112, 127; La Bau v. Vanderbilt, 3 Redf., 385, 399; Brush v. Holland, 3 Bradf., 240, et seq.; Finnern v. Hinz, 38 Hun, 465.

The interests of the beneficiaries under this are several and not joint (Clark v. Morrison, 25 Penn. St., 453), and could not, therefore, be affected by the declarations offered, since the will must stand or fall as a whole.

To set aside the part relating to the widow, and to probate the rest, would be a proceeding which the law would not approve. Van Beuren v. Dash, 30 N. Y., 425, 426; Benedict v. Webb, 98 N. Y., 460.

Decree admitting the will to probate may be settled on. "two days’ notice. _


text:
    In the Estate of Joseph Gall, Deceased.

      (Surrogate’s Court, County of New York,

      Filed March 1, 1887.)

    1. "Will—Probate of—Objection to.
    A will and a codicil thereto were offered for probate, the application for which was opposed by an infant child of the testator through her guardian, on the ground that the testator married after the making of the will, and that she was a child of that marriage, and that the wiUlindertcok to dispose of the decedent’s entire estate, making no mention of her, and that the decedent had not provided for her apart from such alleged will by settlement or otherwise. Held, that the objection alleged might be so amended as to distinctly indicate whether the marriage took place before or after the execution of the codicil and that if such amendment should be made and it should be averred that the execution of the codicil preceded the marriage, the motion for probate should be denied, otherwise it should be granted.
    & Same—Rights of child born of marriage entered into after execution of will—3 R. S . (7th ed.), 2386.

      Held, that in case the execution of the codicil was previous to the marriage, the rights of the infant, if in truth the child of the decedent, should, be determined in accordance with 3 R. S (7th ed.), 2286.
   Rollins, S.

I am asked to admit to probate two papers propounded as together constituting this decedent’s last will and testament, notwithstanding certain objections interposed in behalf of one Caroline Gall, an infant, who is claimed by her special guardian to be decedent’s posthumous child.

One of these objections challenges the jurisdiction of this court, but upon the affidavits and papers heretofore submitted I am convinced that it is not well taken. It must therefore be overruled.

In his only other objection the special guardian alleges that ‘ ‘ subsequent to the making of the said will ” the testator married one Amelia Steel; that said Amelia Steel thereafter gave birth to the infant, whom such special guardian here represents, and that such infant is issue of such marriage. It is further set forth in the second objection that the “said will” undertakes to dispose of the decedent’s entire estate; that it contains no provision for Such infant, and makes no mention of her; and that the decedent has not provided for her apart from such alleged will by setlement or otherwise.

• It is insisted by counsel for the proponent that if Caroline Gall is in truth the daughter of the decedent, born after the making of the will, she is entitled, by the express terms of the statute in such cases provided (sec. 49, title 1, chap. , 6, part 2, Rev. Stat; 2 Banks (7th ed.), 2287), to the same share in this estate which would be hers if her father had died intestate; that therefore she has no interest in this proceeding, but that she should be required to resort, after the probate of the will, to the remedies afforded by section 1868 of the Code of Civil Procedure.

Such is undoubtedly the situation of affairs if at the time the decedent executed the later of the two papers here in controversy he and Amelia Steel were husband and wife. If, however, their intermarriage occurred after such execution the rights of the infant Caroline Gall, if she is in truth the decedent’s daughter, are to be ascertained by reference to sec. 43, title 1 chap. 6, part 2, Rev. Stat., 3 Banks (7th ed), 2286.

That section provides that “if, after the making of any will disposing of the whole estate of the testator, such testator shall marry and have issue of such marriage, and the wife or issue of such marriage shall be hving at the death of the testator, such will shall be deemed revoked, uiiless provision shall have been made for such issue by some settlement, or unless such issue shall have been provided for in the will or in such way mentioned therein as to show an intention not to make such provision. And no other evidence to rebut the presumption of such revocation shall be received. ”

The special guardian’s objections do not distinctly indicate whether the marriage between the decedent and Amelia Steel is claimed to have taken place before the exe ■ cution of the codicil or after. They may be so amended as to contain a distinct allegation in this regard. If such amendment shall be made, and it shall be averred that the execution of the codicil preceded the marriage, the present motion in behalf of the proponent must be denied, otherwise it must be granted.


author: Rollins, S. Parker, J.,

text:
    In the Estate of George E Thompson, Deceased.

      (Surrogate’s Court of New York County,

      Filed April 16, 1887.)

    1. Wills—Language of bequests—Technical language not necessary.
    It is not essential to the validity oí his bequests that the testator should use the word “ give,” or the word "bequeath,” or any other word of similar significance
    2. Same—Legacy—Words constituting.
    The will of a testator directed that his mother receive an amount therein stated, being the amount of borrowed money due her. Held, that this provision was a legacy in satisfaction of a debt.
    3. Same—What will prevent operation of statute of limitations.
    The death of the legatee thus provided for occurred subsequent to that of the testator, and thereafter, in transactions had between their personal representatives, it was ascertained that the estate of the testator’s mother was indebted to that of the testator This sum was by the testator’s executor credited in part satisfaction of the claims against the estate for the amount of the provision made for payment to the relator’s mother. Held, that allowing that the subject of the claim made by the testator’s mother was not a legacy but a debt, this constituted a payment in part, and was sufficient to take it from out of the operation of the statute of limitations.
    4. Statute of limitations—Code Civ. Pro., § 395.
    The effect of a payment of principal or interest in taking a claim out of the operation of the statute of limitations is not altered by Code Civil Procedure, section 395.
   Rollins, S.

The will of this testator directed his executor to reduce his entire estate to money, and to dispose of the proceeds as follows:

First. My wife to receive $100 in cash * * *

Third. My mother to receive the sum of $1,650, being the amount of borrowed money due her; also, interest on the same as may appear by my note held by her for above amount.

“Fourth. All the balance of my estate, after paying the items hereinbefore named, shall be paid to my wife and my child, the same to be divided equally between them.”

At the date of this will (March 7th, 1876), the testator was in fact indebted to his mother in the sum of $1,650 for borrowed money, and that indebtedness was evidenced by his two promissory notes, one for $1,150, dated September 1, 1874, and the other for $500. dated January 1, 1876.

He died in August, 1876. His mother died in March of the year following; the notes in question thereupon came to the hands of her executor, one Keese. At various times prior to April, 1880, Keese received from this decedent’s executor (Armstrong) sums of money amounting in all to $200, in part satisfaction of the claims of the estate of the testator’s mother against the estate of the testator himself.

Subsequently Keese and Armstrong had with each other certain personal business transactions, upon the settlement of which, on May 31, 1883, it was ascertained that the former was indebted to the latter in the sum of $33.44. Instead of discharging this indebtedness by the actual payment of money, Keese, with Armstrong’s approval, credited this estate with payment of a like sum in part satisfaction of the aforesaid claim of the testator’s mother.

On October 14, 1886, Armstrong filed in this court an account of his administration. Certain objections were interposed, and the issues thus raised were submitted to a referee, whose report is before me for confirmation.

The referee finds that the provision in the third clause of the will {supra) is in the nature of a legacy, and that, even if this were not the case, the claim of Sarah Thompson’s estate as a creditor of this decedent would not be barred by the statute of limitations.

The latter finding involves the notion that the transaction between Armstrong and Keese, above referred to, must be treated as, in substance a payment of $13.44 by the former as decedent’s executor to the latter as executor of the decedent’s mother. I think that the referee has reached a correct conclusion.

It is not essential to the validity of his bequests that a testator should use the word “give” or the word “bequeath,” or any other word of similar significance.

The very terms employed by this testator in the article of his will now under consideration, were held in Miars v. Bedgood (9 Leigh, 361), to constitute a legacy.

Parker, J.,

pronouncing the opinion of our court of appeals in Orton v. Orton (3 Keyes, 486), approves the definition of a legacy, which is to be found in Bacon’s Abridgement, viz.: a “ gift or bequest by testament ”—and declares that “the word gift is not limited in its meaning to a gratuity, but has the more extended signification of a thing given,.either as a gratuity or a recompense.”

I think that the provision here in dispute is a legacy in satisfaction of a debt, and that in view of section 1819 of the Code of Civil Procedure, the Statute of Limitations has not as yet begun to run against the representative of the deceased legatee.

Nor is the enforcement of the claim of Sarah Thompson’s estate barred by the Statute of Limitations, even though the claim be regarded not as a legacy but as a debt.

In May, 1883, it would have been entirely proper for Armstrong to have satisfied it in whole or in part, whether he had or had not been at that time in possession of funds belonging to the estate; and if he had made payments out of his own pocket he would thereby have entitled' himself to reimbursement out of the estate moneys thereafter coming to his hands.

If Keese had actually paid Armstrong the sum of $13.44, and Armstrong had handed back to Keese the identical money on account of the Sarah Thompson claim, it cannot. , be doubted that the transaction would have taken the claim out of the operation of the Statute of Limitations. And this was in effect what actually took place.

Section 395 of the Code of Civil Procedure, which makes an acknowledgment or promise contained in a writing, signed by the party to be charged thereby, the only competent evidence of a new or continuing contract, whereby to defeat the Statute of Limitations, expressly declares that this section does not alter the effect of a payment of principal or interest.

“Payment of a debt,” says the court of appeals of Virginia, in Huffmans v. Walker (26 Grat., 314), is not necessarily a payment of money, but that is payment which the parties contract shall be accepted as payment.”

It was held in Maber v. Mdber (L. R., 2 Exch. Cas., 153) that in determining whether a transaction claimed to be a payment has had the effect of taking the case out of the Statute of Limitations, the true test is this: Would the transaction have supported a plea of payment if the creditor had brought an action ? Tried by this test, the present case seems to me a plain one. In its essential features it closely resembles the one last cited.

See also Hooper v. Stephens, 4 Ad. & El., 71; Bodger v. Arch, 10 H. & G., 333; Amos v. Smith, 1 id., 238.

I do not think it necessary to discuss any of the other exceptions to the report of the referee. The report is in all things confirmed.


author: Lawrence, J.

text:
    Matter of James H. Breslin.

      (Supreme Court, Chambers, First Department,

      Filed June 10, 1887 )

    1. Excise laws—Laws 1857, chap. 628, § 13—Sale of liquors without LICENSE UNAUTHORIZED.
    It is provided by Laws 1857, chapter 628, section 13, that whoever shall sell any strong spirituous liquors or wines in quantities less than five gal-Ions at a time, without having a license therefor, granted as therein provided, shall forfeit fifty dollars for each offense. A license to sell liquors in quantities less than five gallons having been granted, by the terms of which the privilege to make such sales upon Sunday was expressly with held. Held, that without a license it was not permitted to any one to sell liquors,
    3. Same—License—Sale op liquors on Sunday unauthorized.

      Held, that the right to sell liquors upon Sunday being especially excepted from the powers granted, sales made on that day were unauthorized.
    3. Same—Habeas corpus—Dismissal op writ.
    Sales of liquor having been made upon a Sunday, and the party making such sales having been arrested for a breach of the excise laws: Held, that upon proof of such facts a writ of habeas corpas to inquire into the cause of such arrest should be dismissed.
   Lawrence, J.

The petitioner in this case was arrested on an affidavit of Alexander S. Williams, captain of the municipal police, of the nineteenth precinct of this city, charged with having on Sunday, the 5th day of June, 1887, sold strong and spirituous liquors, being intoxicating liquors to be drank as a beverage, contrary to and in violation of the statute. He was taken before one of the police justices, for examination, and a habeus corpus was subsequently issued, upon which the petitioner was brought before me. Upon the return to the writ, there was an elaborate discussion in regard to the construction to be given to the act of 1857, and the acts of 1870 and 1873, amending said act. In the view which I take of this case, it will be unnecessary for me to pass upon many of the questions which was discussed by counsel. The act of 1857, chapter 628, is entitled An act to suppress intemperance and to regulate the sale of intoxicating liquors.” See Laws of 1857, p. 405. And the 13th section of that act it is provided that “Whoever shall sell any strong or spirituous liquors or wines in quantities less than five gallons at a time, without Laving a license therefor, granted as herein provided, shall forfeit fifty dollars for each offence. ”

It is obvious that the petitioner has no right to sell liquor to anyone, either on Sunday or any other day of the week, without having a license, and it becomes material, therefore, in disposing of this case, to ascertain precisely under what license the petitioner claims the right to sell liquor to anyon eat any time The license was submitted upon the argument, and it reads as follows:

“ The board of commissioners of excise, in and for the city of New York, hereby certify that an application for a license to sell strong and spirituous liquors, wines, ale and beer having been made to them in writing by James H. Breslin, who proposes to keep a hotel, and the commissioners being satisfied that the applicant is of good moral character, that he has sufficient ability to keep a hotel and the necessary accommodations to entertain travelers, and that a hotel is required for the actual accommodation of travelers at the place where such applicant proposes to keep the same, license is granted to said James H. Breslin permit- . ting him to sell and dispose of strong and spirituous liquors, wines, ale and beer in quantities less than five gallons at a time, at 1202 Broadway, to be drank upon said premises (excepting on Sundays, election days, or on any day between the hours of one and five o’clock in the morning), for one year from May 6, 1887, pursuant to chapter 628 of the laws of 1857, and the acts of the legislature supplementary thereto and amendatory thereof. This license is granted and accepted upon the express condition that the licensee^ shall conform to the requirements of said acts of the legislature, and in case of any breach of such condition this license shall immediately be and become null and void.”

I can discover in this license no authority for selling on Sundays. That day is expressly excepted from the days on which a licensee can sell. Irrespective, therefore, of the provisions of the statute which were referred to on the argument, it is quite clear to my mind that the petitioner has no license which permits him to sell on Sunday, and it therefore follows that this writ must be dismissed.


author: Churchill, J.

text:
    W. Beaumont Whitney et al., v. James Haggerty.

      (Supreme Court, Oneida Special Term,

      Filed June 4, 1887.)

    Answer—Service by mail when regular—Code Civ. Pro., § 797.
    Service of an answer through the post office is regular, where the person making the service and the person to be served both reside in the same place.
    Motion to require plaintiff’s attorney to receive answer as regularly served and for other relief.

      J. D. McMahon, for def’t; C. D. Prescott, for pl’ff.
   Churchill, J.

March 8, 1887, the summons and complaint in this action were served personally on the defendant. March 28, defendant’s attorney deposited in the post office at Rome a copy of the defendant’s answer, properly enclosed, prepaid and directed to plaintiff’s attorney at Rome. Both attorneys resided and had their law offices in Rome. Plaintiff’s attorney received the answer through the post office on the afternoon of the twenty-ninth, and immediately returned it, with a notice endorsed that such service by mail was not permitted by the Code, and on the same day he entered judgment as by default against defendant.

The only question submitted in this motion is whether service through the post office is regular, when the person making the service and the person to be served both reside in the same place.

By the old practice, service through the post office was not good service, but if the paper was actually received in time by the person to whom it was sent, it was held good as of the day when received. Hudson v. Henry, 1 Caine’s Rep., 67; Stafford v. Cole, 1 Johns. Ca., 413; Graham’s Pr. (2d ed., 1836), 712.

About 1840, a rule of court was adopted (rule 7, old law rules), which provided that service of papers by mail should be good in all cases where the attorneys resided in different places, between which there was a communication by mail. Under this rule the deposit in the post office, in conformity with the rule, was held to be good service, whether the Saper was received or not. Brown v. Briggs, 1 How. Pr. Rep., 152.

The Code of Procedure adopted the language of the rule, with a single modification, requiring that there should bo a regular communication by mail between the two places. Code of Procedure, § 410; Schenke v. McKee, 4 How. Pr. Rep., 246.

So long as the Code of Procedure was in force, service by mail could not be made when the party serving and the party to be served wero residents of the same place.

The commissioners by whom the present Code of Civil Procedure was prepared, in their first draft, submitted to the legislature in 1873, retained section 410 of the former Code, but in a note appended to it they recommended such modifications as would do away with the restrictions which it imposed on post office service. The commissioners say in their note: “Are relics of tho past which should be swept away as similar restrictions upon service of notice of protest and of foreclosure by advertisement are abrogated.”

The legislature adopted the recommendations of the commissioners, and the result was the first subdivision of section 797, as it now stands. Mr. Throop, one of the commissioners, in his edition of the Code, in a note to section 797, says that by subdivision 1 the previous restrictions upon post office service are swept away.

If this view be correct, ,as it seems to be, the service of the defendant’s answer in this case was regular.

Let an order be entered directing that the answer as served stand as the answer in the action, and that the plaintiffs have ten days from the service of a copy of the order to be entered hereon, in which to reply or demur as they may be advised, and that the proceedings of the plaintiffs subsequent to March 28, 1887, be set aside.

As the question seems a new one, and there has been in fact among members of the profession a good deal of doubt as to whether such service is regular, no costs of the motion are given.

Let the opinion be filed and an order entered in accord- . anee with the above.


author: Smith, P. J.

text:
    Peter Weller and Catharine Weller, his wife, Resp’ts, v. Louis Weller et al., App’lts.

      (Supreme Court, General Term, Mfth Department,

      Filed March, 1887.)

    1. Deed—Action to set aside—Voluntary gift, to party standing in relation of trust, will be carefully scutinized—Burden of PROVING FAIRNESS IS ON DONEE.
    A voluntary gift will not necessarily be set aside, because made to a donee standing in a relation of trust to the donor, but transactions of that nature will be subjected to the severest scrutiny by courts of equity. The presumption is against the propriety of the transaction, and the burden rests upon the party claiming under it to show that it was fair, yell understood and freely entered into by the donor, and this must appear by evidence, in addition to that derived from the execution of the instrument conferring the gift, usually evidence is requited that a disinterested person advised the donor of all his rights.

      H. Same—Under wiiat circumstances will not be upheld.
    A deed upheld by no consideration whereby aged parents conveyed valuable real estate to their sons, who prepared the instrument and procured its execution by the grantors under a misapprehension of its contents, will be set aside at the suit of the grantors.

      3. Same—What will not be regarded as good defense
    A unilateral agreement entered into by the grantees named in the deed to support the grantor's, will be unavailing as a defense.
    Appeal from a judgment on the decision of the court in a case tried at the Erie equity term.

      Spencer Clinton, for app’lts; Fred. Grenier, attorney for resp’ts; Truman C. White, of counsel.
   Smith, P. J.

The judgment appealed from sets aside and annuls a deed of real estate, executed by the plaintiffs to the defendants, Louis and Adam Weller, in May, 1884, and orders an accounting for the rents and profits. The plaintiffs are husband and wife, and the defendants, Louis and Adam, are their sons. . The other defendants are the wives of Louis and Adam.

Jacob J. Weller, another son of the plaintiffs, died intestate, at Buffalo, 10th May, 1884, leaving his father, the said Peter Weller, his only heir-at-law. At the time of his death Jacob owned real estate, in Buffalo, of the value of about $165,000, and personal property worth about $105,000. He owed debts amounting to not more than $185,000. Shortly after the death of Jacob the plaintiffs executed and acknowledged the deed above referred to, purporting to quit claim and convey to the defendants, Louis and Adam, all of said real estate, absolutely and in fee. About the same time they executed to their said sons a bill of sale of all the personal property left by Jacob. Each of the plaintiffs was upwards of eighty years of age at the time of the execution of said deed, the husband, especially, was infirm, and neither of them could read, write or understand the English language. The husband’s occupation had been that of a mechanic or day laborer, until age and infirmity incapactated him for hard labor, and the plaintiffs had little or no property except that left by Jacob. Adam and Louis were active business men in the prime of life.

The complaint alleges, in substance, that upon the death of Jacob, the defendant, Louis, at the request of the plaintiffs, promised to look after the property left by his brother Jacob, and to take all necessary steps and proceedings to preserve the same, and to turn over to the plaintiffs the proceeds of such, if any, as he should sell or dispose of, and that the plaintiffs, relying upon Louis and believing he would be faithful to them in looking after their interest in the property left by their deceased son, entrusted to him the duty of so doing, and executed said deed and other instruments in writing presented to them by Louis and Adam, not knowing or understanding their contents, but relying upon their statements and representations that such papers were necessary for the purpose of taking care of said property. And the complaint alleges that Louis and Adam did not disclose to the plaintiffs, but concealed from them, the nature of said deed of conveyance, with intent to cheat and defraud the said plaintiffs out of said real estate. The complaint also alleges that said deed was without consideration.

The trial judge has not found, in terms, either false representation or fraudulent concealment, or a fraudulent intent, on the part of the defendants or either of them, or that the deed was without consideration, or that the defendant Louis oromised to take care of the property for the plaintiffs.

He has found that after the death of Jacob, the plaintiffs requested Louis to take charge of the property as the agent and on behalf of his father; that the plaintiffs relied upon Louis, and had confidence in his judgment, and believed he would be faithful to them in looking after the interests of Peter in said property; that they executed the deed without knowing its terms, import or effect; and that if they had known its import or effect they would not have executed it.

To those several findings the appellants excepted and" they now challenge their correctness contending that they are without evidence or against the weight of evidence.

The appellants requested the court to find, among other things, that the deed was read to Peter and explained to him before its execution; that it was executed by the plaintiffs, because Louis made it a condition of his talcing charge of the property in conjunction with his brother, that the property should be transferred to him; that the-deed was executed under an agreement with Louis and Adam to the effect that it should be executed, and that Louis and Adam should pay the plaintiffs during their joint lives the sum of $300 yearly, for their support, and in case of the death of Peter leaving his wife surviving him, should pay to her the sum of $200 yearly, during her life, for her support, and that Louis and Adam should divide the property among all the brothers and sisters of said Jacob, equally; and that the terms of the agreement under which the deed were executed was discussed soon after the death of Jacob, in the presence of the plaintiffs and of the other brothers and sisters of Jacob, except one. The several requests were declined and the appellants excepted.

In respect to the questions raised by the exceptions above referred to, it is enough to say that after a careful reading of the printed case, we find that there is evidence, which, although controverted, is sufficient, if believed by the trial judge (as we are to presume it was), to support the several, findings excepted to; and that whatever testimony there may be, tending to sustain the propositions embraced in the several requests declined by the judge, it is controverted to such an extent, as that the decision of the trial judge upon those matters is conclusive. In this view of the subject the exceptions above stated point to no error, and we are to assume the facts of the case, in the particulars above-mentioned, to be as found by the trial court.

We have said that the trial judge did not find, in terms, that the deed was without consideration. Neither did he find that it was executed for a good consideration, or a consideration of any kind. On the contrary, having been requested by the defendants’ counsel to find that it was executed upon a good and valid consideration, he declined to do so, and he also declined the defendants’ request to find that the deed was executed upon an agreement by the defendants to pay a certain sum annually for the support of the grantors, during their lives, which was the only consideration for said deed alleged by the defendants. The agreement so alleged proported to be in writing, executed by Adam and Louis only, and bearing even date with the deed. The judge found that neither of the plaintiffs knew the contents or effect of that writing, that it was never accepted by them or either of them; nor did either of them even consent to the making or execution thereof. There is evidence in the case, "which although controverted, tends to sustain those findings.

But if the agreement had been made under such circumstances as to be binding, it is apparent from the testimony that the defendants were to be reimbursed from the property left by Jacob, the amount of their advances for the support of the plaintiffs. This appears from the cotemporaneous agreement made by the defendants with their four sisters, by which they agreed to pay over to each of them one-sixth of the surplus of the yearly rents and profits of the real estate after the payment of all expenses which they might incur for the support of their parents, and also one-sixth of the proceeds of a sale of any such real estate after providing from such proceeds a fund for the future support and maintenance of their parents. The same feature appears in the declaration of trust in behalf of the sisters which the defendants executed after the commencement of this suit. In corroboration of this view of the matter is the fact found by the trial judge, that all of the moneys paid to the plaintiffs by Louis and Adam came from the personal estate left by Jacob.

The deed is, therefore, to be regarded as being without consideration; and the question is presented whether such voluntary conveyance, executed by needy parents in extreme old age to their sons in whom they confided, and in ignorance and misapprehension of its contents and effect, should be upheld by a court of equity, although not found by the trial court, as matter of fact, to have been induced by actual, positive fraud.

Upon well established principles, a transaction of that nature, accompanied by the circumstances existing in this case, should not be allowed to stand. A voluntary gift will not necessarily be set aside because made to a donee standing in a relation of trust and confidence to the giver, but transactions of that nature are viewed by courts of equity with suspicion and scrutinized with the extremest vigilance. It is not enough that no fraud appears affirmatively, but the presumption is against the propriety of the transaction, and the burden rests upon the party claiming under it to show that it was fair, .well understood by the donor, and freely entered into by him, and this must appear by evidence in addition to that derived from the execution of the instrument conferring the gift. And, usually, evidence is required that a third and disinterested person advised the party of all his rights. These rales are so frequently and uniformely asserted in adjudged cases and text writers that it is hardly necessary to make citations in support of them. It may be well, however, to refer to a few authorities for the'purpose of showing their decisive control in the present case.

Story, in his work on Equity Jurisprudence, after remarking that in cases of constructive frauds arising from some peculiar, confidential or fiduciary relation between the parties, there is often to be found some intermixture of deceit, imposition, overreaching, unconscionable advantage, or other mark of deceit and positive fraud, goes on to say that 11 the principle on which courts of equity act in regard thereto, stands, independent of any such ingredients, upon a motive of general public policy; and it is designed, in some degree, as a protection to the parties against the effects of overweening confidence and self-delusion, and the infirmities of hasty and precipitate judgment. Volume 1, § 307.

Again, “courts of equity do not sit, or affect to sit, in judgment upon cases as custodies morum, enforcing the strict rules of morality. But they do sit to enforce what has not inaptly been called a technical morality. They will not arrest or set aside an act or contract merely because a man of more honor would not have entered into it. There must be some relation between the parties which compels the one to make a full discovery to the other, or to abstain from all selfish projects. But when such a relation does exist, courts of equity acting upon this superinduced ground in aid of general morals, will not suffer one party standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance. ” Section 308.

And, in speaking of transactions between attorney and client, the same learned writer says: “ On the one hand, it is not necessary to establish that there has been fraud or imposition upon the client; and, on the other hand, it is not necessarily void throughout ipso facto. But the burthen of establishing its perfect fairness, adequacy and equity, is thrown upon the attorney; upon the general rule, that he, who bargains in a matter of advantage with a person, placing a confidence in him, is bound to show that a reasonable use has been made of that confidence; a rule applying equally to all persons standing- in confidential relations with each other. If no such proof is established, courts of equity treat the case as one of constructive fraud.” Section 311.

In Bergen v. Udall (31 Barb., 1), a grant without consideration from a daughter, who had just attained her majority, to her father of a valuable easement upon her land, was held to be void, and was set aside upon the application of the rules above stated. Although it was held that the evidence fell short of showing either gross intentional misrepresentation and fraud, or threats and coercion on the part of the father, yet as the grant was not the result of the deliberate, unaided and uncontrolled action of the daughter’s own mind, but was procured by the agency of means and motives and the suggestions of others, it was set aside. It will be observed that the means and suggestions made use of by others thus adverted to, were not held to constitute, per se, what the law regards as “ undue influence,” the impropriety of their use resulted wholly from the relation of confidence existing between the parties. “There is an inflexible principle,” said Emott, J., who tried the case, “both of public policy and private justice, which forbids a parent making use of his influence or his child’s affection, to impose upon her mind a purpose of bounty to him.” He referred to the case of Hoghton v. Hoghton (11 Eng. L. and Eq. R,, 134), in which Sir John Romilly, M. R., first clearly states the rule, on the authority of Lord Eldon, in Gibson v. Jeyes (6 Ves., 266), that whenever a man takes a voluntary donation, he must assume the burden of proving the transaction righteous, that is, of showing that the donor understood what he was doing; and, in the next place, upon the same authority, in the noted case of Huguenin v. Bascley (14 Ves., 273), that where the donor and donee were so situated towards each other that undue influence might have been exercised, the question is not merely what was the intention of the donor, but how that intention was produced. He then proceeds: “In many cases the court, from the relations existing between the parties to the transaction, infers the probability of undue influence having been exerted, and in such cases the court watches the whole transaction with great jealousy, not merely for the purpose of ascertaining that the person likely to be so influenced fully understood the act he was performing, but also for the purpose of ascertaining that his consent to perform the act was not obtained by reason of the influence possessed by the person receiving the benefit. The court holds, as an inseparable condition, that this influence must be exerted for the benefit of the person subject to it, and not for the advantage of the person procuring it.”

Sears v. Shafer (1 Barb., 408,) was the case of a release executed by a widow to her three brothers, of her interest in certain real estate, of which their father had died siezed in 1807, leaving a will by by which he devised the same to his sons, generally, without words of limitation or inheritance, the release reciting that the parties believed that the testator intended to devise in fee, but that the terms of the will gave only a life estate, and the release was designed to give effect to such intention. The widow having died, her children filed their bill to obtain a decree setting aside the release on the ground that it was obtained by fraud and undue influence. There was no evidence of actual fraud, and none that the particular paper—the release—had been procured by undue influence. A witness testified that a few days after Elizabeth (the widow) had been to her brother’s, the witness, while standing at the door, overheard Elizabeth tell her brother that she was not willing to sign any more papers; that he had compelled her to sign thflse papers that she had signed before against her will, and she was very sorry for it. It did not appear that the release was one of the papers referred to, and from the connection in which that item of testimony is alluded to in the opinion of the trial court, it would seem that it was not introduced by the plaintiffs as tending to show that the release was procured by undue influence, but it was brought in by the defendants, to show that the execution of the release was not kept secret, but was talked about by the grantor though, as the court remarked, the testimony tended to weaken rather than strengthen the defendants’ case. Page 417. The circumstances relied upon in granting the decree was (1) the enfeebled bodily condition of the sister, she having been afflicted with a fatal malady for years; (2) the relationship of the parties, (3) the fact that the release was prepared at the instigation of one of the brothers, and (4) the want of satisfactory proof that the sister fully understood the nature and effect of the release. Under the latter head stress was laid upon two circumstances, (1) there was no proof that the release was read over in her hearing, and (2) she was unable to read English, or even to write her name. Judge Barculo, who tried the case at special term, set aside the release, applying to the case, the principles above stated. The decree was reversed at general term, but was affirmed by the court of appeals. 2 Seld., 268.

In some material particulars the present case closely resembles that of Sears v. Shafer. Here the plaintiffs were old and feeble. They were unacquainted with business. They confided in their sons to manage their affairs. The conveyance executed by them was without consideration. It was prepared by the grantees, and nothing was known about it by the grantors till it was presented to them for execution. It was not read to them. They could not read or write English, or even understand it, except to a very limited extent. In these respects the present case is almost a repetition of Sears v. Shafer. But it exceeds it in its equities, so far as the equities depend upon the amount of. property involved.

The defendants in this case sought to prove a state of facts which, if established, would have taken the case out of the operation of the rules above stated, but in that effort they failed. Several particulars have already been referred to, in which the testimony produced by them was controverted, and the fact was found against them. Only one other need be mentioned. Louis and Adam testified positively that at the time when the deed was executed by the plaintiffs, it was read over to them by Mr. Avery, the notary before whom it was acknowledged and in whose presence the plaintiff signed it by making their mark. In that they are contradicted by several witnesses, including Mr. Avery, who^ although he did not recollect distinctly all that occurred, stated that he did not believe that he read the deed to them, and he explained the grounds of his belief. All the testimony on the part of the defendants about a prior agreement between themselves and the plaintiffs, being excluded (as it must be in the consideration of the appeal, since the finding of the trial court is against it upon sufficient contradictory evidence), the case is the bald one of a grant to the sons, without consideration, of the valuable real estate of these old people, prepared by the grantees, and by them presented to their parents and procured to be executed by them in ignorance and under a misapprehension of its contents. The presumption of improper influence is irresistible. No disinterested third person repels it by his testimony. Neither Mr. Avery, the notary, nor Mr. Wilson, who drew the deed, knew anything of the circumstances that preceded and led to its execution. The unilateral agreement of Louis and Adam, respecting the support of their parents, unilateral, because signed by them without the knowledge, consent, acquiescence or acceptance of the other parties named, obviously, avails nothing as a defense. Neither does the declaration of trust made by them, for the benefit of their sisters, after this suit, was commenced.

We have examined the several exceptions taken by the •defendant’s counsel, but do not think they point to any substantial error. Most of them have been met by the views already expressed, and the others, obviously, are immaterial.

The judgment should be affirmed, with costs.

Bradly, J., concurs; Barker, J., not voting; Haight, J., not sitting.


author: Barker, J.

text:
    Estey Manuf’g Co., App’lt, v. Elmer Waring, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Fraud—False representations alone do not constitute.
    The fact that representations made by a purchaser as to his financial standing to the party selling him goods at the time of such sale are false does not constitute a fraud without proof that he also intended that the seller should be influenced thereby.
    .2. Same—Is a question of fact not of law.
    The question of fraud is one of fact and not of law.

      Appeal from a judgment of the Ontario county court affirming a justice’s judgment in the defendant’s favor The action was replevin to recover a quantity of furniture. The defendant, as constable, levied upon the property by virtue of a warrant of attachment placed in his hands in an action in favor of James McKechine against one Thorp.

      Mark T. Powell, for app’lt; Henry M. Field, for resp’t.
   Barker, J.

The plaintiff is a foreign corporation engaged in the manufactuture of furniture, and sold the property in question to Charles H. Thorp, a merchant doing business in Canandaigua, this state. Thereafter the same was shipped by the plaintiff by railroad consigned to Thorp, and while at the railroad station the defendant seized the same as the property of Thorp. The plaintiff commenced the action for the purpose of regaining possession of the goods, claiming that the title never passed to Thorp, for the reason that he was guilty of making fraudulent representations as to his financial condition at the time the purchase was made, which induced the plaintiff to sell the goods upon credit, and that Thorp intended to cheat the plaintiff out of the value of the goods, the purchase price of which was $222. The plaintiff’s salesman, being a stranger to Thorp, called at his store in Canandaigua, on the 13th of March, 1885, and received an order for the goods, for which a credit was given.

The plaintiff’s salesman, as a witness, testified that Thorpstated to him that he was worth, above all liabilities, the Sum of three or four thousand dollars, and that all the-goods then in the store belonged to him free of incumbrance; that all the debts he owed he owed to James Shay, who was then present and to whom the salesman was introduced by Thorp. It appears by the proofs that at that time Thorp was indebted to Shay in the sum of $2,800, and that the latter was an indorser upon his paper for. about $3,000, and for his security Shay held mortgages-upon the goods, the same also being on file in the proper town clerk’s office. It does not appear that at that time Thorp owed other debts than those which have been men - tioned—Thayer, $2,100; McICetchnie, $165.

We think the evidence fairly tends to show that the stock of goods on hand at the time of the purchase from the plaintiff was of a value equal to the indebtedness which Thorp then owed. Afterwards, and on the 24th of- April, Thorp’s indebtedness to Shay being for the sum of $5,000, including the said indorsements, the latter purchased the goods in the store, and in payment therein discharged the mortgages and assumed the indebtedness for which her was liable as indorser, and paid Thorp $1,500 in cash. The evidence fairly established that the statement of Thorp that he was worth three or four thousand dollars, above his indebtedness, and that he owned the property m the store free from all incumbrances, was false and untrue, and that his entire property and assets at that time was no greater than the amount of his liabilities; and that the plaintiff was induced to make the sale by reason of such statements. The evidence bearing on these questions was not disputed, but to entitle the plaintiff to repudiate the sale and to reclaim the property, it was also necessary for it to establish as a fact that Thorp made the misrepresentations for the purpose of cheating and defrauding the plaintiff. As the verdict was for the defendant, we are to assume that the justice failed to find a fraudulent intention on the part of Thorp in making the misrepresentations as to his financial condition.

The counsel for the appellant contends, that as the representations related to Thorp’s financial ability, and they were proven to be false by undisputed evidence, the justice should have found as a fact that he intended to cheat and defraud the plaintiff.

Assuming that a case might be supposed, in which the evidence of fraud would be so clear and conclusive that the court might set aside a verdict of a jury, or the finding of a justice, as against the weight of evidence on the question of fraudulent intent, yet we are of the opinion that this is not such a case. The question of fraudulent intent in cases of this character is one of fact, and is generally deducible from a series of other facts and circumstances connected with the transaction, which ordinarily indicate an intention on the part of the purchaser to cheat and defraud the seller out of his property. Stitt v. Little et al., 63 N. Y., 427; Meyer v. Amidon, 45 id., 169; Oberlander v. Spiess, id., 175.

The question of fraud is always one of fact and not of- law. To establish fraudulent intent in a particular instance, the integrity of accused party must be attacked and broken down, and it must be shown that a deceitful purpose actuated him in concluding the agreement. There are some circumstances in this case which might well lead the justice to the conclusion that Thorp, although he misstated his financial condition, had no intention of cheating the plaintiff. The amount of goods purchased was small, and if they had been received before he sold out his stock of goods to Shay, they would not have largely added to their value. The evidence fairly tends to establish that if all of the property which he had on hand at the time he made the purchase had been prudently and carefully managed, it could have been converted into money sufficient to have paid his indebtedness in full. While the justice may well have found that Thorp, at the time he closed out his busi • ness and conveyed all his property to Shay, with intent to cheat and defraud the plaintiff, it does not necessarily follow that he had formed such a purpose at the time he purchased these goods. As bearing upon the defendant’s position, that Thorp had no intent to deceive the plaintiff as to his financial ability there is the circumstance, of much significance, that he introduced the plaintiff’s agent to his principal debtor, from whom the salesman could have readily ascertained Thorp’s true financial condition. If Thorp was solvent at the time of the purchase of the goods, as the evidence tends to show; then the magistrate’s conclusion, that the same was made without any fraudulent purpose, is sustained by a very significant circumstance. We, therefore, must hold that the conclusion of the magistrate, that there was no fraud in the transaction, is con elusive upon the plaintiff.

Some objections were made by the plaintiff to the reception of evidence, but as no point is made in the brief that the rulings were erroneous, and we do not readily discover that they were, the judgment should be affirmed.

All concur.


author: Bradley, J.

text:
    George R. Zimmerman, App’lt, v. Garret B. Hunt, Impleaded with Others, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Estoppel—When mortgagee is estopped from asserting his mortgage.
    The defendant Hunt having declined to accept the deed to certain premises subject to the plaintiff’s mortgage, and being afterwards induced to do so on the production of a discharge of said mortgage made by the plaintiff. Held, that the latter was estopped from afterwards asserting his mortgage to the prejudice of Hunt, or those persons holding under him.

      2. Same—Evidence—What competent.
    It was competent for the defendant to prove the request of his grantor, and the arrangement under which he consented to take a conveyance, and the circumstances of his refusal to accept the deed as it was drawn, and those under which he did accept it with a view to the question of estoppel arising out of the production of the instrument made by the ' plaintiff.
    3. Pleading—Denial on information and belief—Code Civ. Pro., §§ 600 and 522.
    The denials going to the existing validity of the mortgage as security were made upon the information and belief of the defendant. Held, that this method was sufficient to present an issue within the meaning of Code Civ. Pro., §§ 500 and 522.
    Appeal from judgment entered on decision of Erie special term, dismissing complaint as to all the defendants.

      Hunt & Whedon, for app’lt; B. H. Williams, for resp’t.
   Bradley, J.

Action to foreclose a mortgage made by the defendant, John W. Zimmerman, to the plaintiff to secure the payment of $1,000, bearing date February 3, 1876, and recorded October 3, 1879, covering land described as three parcels of twenty-five acres, one-fourth of an acre and eighty-one and a half acres, making together one hundred, six and three-fourths acres.

The defendant Hunt was grantee in a warranty deed made by John W. Zimmerman and his wife, of date December 17, 1877, and recorded December 22,1877, of the eighty-one and a half acres before mentioned, and by its terms was made subject to a mortgage of $2,000 to the National Savings Bank of Buffalo, and to two other mortgages of $1,000 each, made by the party of the first part to the plaintiff and John W. Zimmerman, Jr., “All of which the part of second party is to assume and pay.” The trial court found that, in October, 1877, the defendant, John W. Zimmerman, being indebted to the defendant several hundred dollars, requested him to take from him a conveyance of the land subject to the savings bank mortgage, and a mortgage on which was unpaid $1,331, held by Bickford & Salisbury; that Hunt should sell the premises,cand with the amount he should realize from the sale over those two mortgages last mentioned, he should first pay such indebtedness to himself and account to Zimmerman, the grantor, or his wife, for the residue of such proceeds; that Hunt assented to such request, and agreed to take the conveyance with that understanding; that the deed to Hunt was made and recorded without his knowledge; that the first time his attention was called to the deed was about the 1st of February, 1878, when it was exhibited to him by the grantor, and, seeing that by its terms it was subject to the mortgages to the plaintiff and Zimmerman, Jr., which was the first he had any information of them, Hunt declined to accept the deed; that, thereupon, the grantor stated to him that those mortgages amounted to nothing, had been destroyed and he could get them discharged; that afterwards, about February 21, 1878, the grantor again presented to Hunt the deed, and with it an instrument executed by the plaintiff as follows:

“Received, Clarence, February 21_, 1878, of Garret B. Hunt, one dollar, it being in full satisfaction of a certain mortgage executed by John W. Zimmerman to me, being the same mortgage described in a certain deed of conveyance given by John W. Zimmerman to Garret B. Hunt, and recorded in Erie county clerk’s office on the 22d day of December, 1877, in liber 368 of deeds, at page 275.
“GEO. R. ZIMMERMAN.”

And that Hunt, believing the mortgage was discharged, accepted the deed pursuant to the request of and the understanding with the grantor before mentioned. And that Hunt shortly after, by warranty deed subject only to the savings bank mortgage, and that held by Bickford and Salisbury, conveyed the premises to one Seibert, and after-wards accounted to the grantor for the proceeds of sale and settled with him. There is some conflict of evidence in respect to some of the facts so found, but the evidence on the part of the defendant is sufficient to warrant and support those findings of the trial court. The purpose of the arrangement under which the deed was made was as between the grantor and grantee, to vest m the latter the apparent title with a view to the execution of the powder of sale and trust expressed in the understanding of the parties. This was by parol, and as a matter of trust and confidence was within the statute and void. Rathbun v. Rathbun, 6 Barb.. 98, 105-6. But the parties to the deed having accomplished the purpose of it, by a complete execution and adjustment of the matter of the trust, pursuant to the parol agreement as contemplated by it, the question of its validity has no importance.

The defendant Hunt having declined to accept the deed subject to the plaintiff’s mortgage, and being afterwards induced to do so on the production of the receipt and discharge made by the plaintiff, the latter, in view of the facts as found by the court, was estopped from afterwards asserting his mortgage to the prejudice of Hunt, who had acted upon the faith of it. Curtiss v. Tripp, Clarke, 318; Wood v. Seely, 32 N. Y., 105; Cont'l Nat. Bank v. Nat. Bank, 50 N. Y., 575.

It was a representation that the mortgage was satisfied and not then a lien upon the property, and thus the defendant was permitted to understand that the deed when accepted by him was relieved from the effect of the provision expressed in it, that it was subject to this mortgage. And it was competent for the defendant to prove the request of his grantor, and the arrangement under which he consented to take a conveyance, and the circumstances of his refusal to accept the deed as it was drawn, and those under which he did accept it with a view to the question of estoppel arising out of the production of the instrument made by the plaintiff.

And this was the only reason which rendered the evidence of the subsequent accounting and settlement with the grantor competent. The defendant Hunt having conveyed with warranty to Seibert, accounted to his grantor for the proceeds of the sale in execution of the trust before he was advised that the plaintiff made any claim upon his mortgage. And, therefore, such claim could not, after that time, be effectually asserted without prejudice to Hunt.

This situation was important for the defense so far as it ■ rested upon the ground of estoppel, which was a question upon the proofs that rendered this evidence of accounting and settlement competent, and it supported the conclusion of the court in that respect.

The exception to the reception in evidence of the receipt made by the plaintiff was at the time well taken, because the certificate of proof of its execution by the person purporting to have been a subscribing witness did not contain the requisites of a certificate for such purpose, but the exception was overcome by evidence afterwards introduced tending to prove that the signature subscribed to the receipt was that of the plaintiff.

This was a disputed fact, but the evidence was such as to support the finding of the court that the plaintiff made it, resting on the proof of his handwriting, although denied by him. The denials going to the existing validity of the mortgage as security were made upon the information and belief of the defendant.

The contention of the plaintiff’s counsel that this method of denial was not sufficient to present an issue within the meaning of the Code (§§ 500, 522) is not supported. Wood v. Raydure, 39 Hun, 144. That question, however, does not seem to be very important in this case. The trial court has not found that the plaintiff’s mortgage was in fact paid, but did find that at the time it was made the mortgagor was indebted to the plaintiff in some amount not exceeding four hundred and fifty dollars, and that no part of it has been paid. In view of the findings as made, the success of the defense of Hunt must stand upon estoppel alone. The court has not found as a fact that the plaintiff’s mortgage was paid or discharged, or was for any cause invalid, but as conclusion of law has determined that the mortgage is not a lien upon the lands described in it or any part thereof. The conclusion does not seem to be supported by the facts within the issues and found, except as to the land covered by the deed to Hunt. And so far as shown by the record, no other defendant appeared or answered.

It appears, and the court has found that by deed of date October 12, 1877, John W. Zimmerman conveyed the twenty-five acres of land in the mortgage mentioned, to one Kelkenberg, who purchased and paid $1,250 for it to Hunt, who accounted for it to the grantor, and that at the time of the purchase Kelkenberg was ignorant of the existence of the plaintiff’s mortgage. It seems that the defendant Hunt gave to Kelkenberg his undertaking under seal of date November 20, 1577, reciting the conveyance to-him. of the twenty-five acres and the payment of the consideration by him to Hunt, and containing the covenant of the latter to defend him, in the peaceable possession, against any person lawfully claiming the same or any part thereof. There is no reference, in the answer of Hunt, to this conveyance to Kelkenberg or to the covenant referred to.

The alleged defense relates solely to the title derived from the deed given to him of the eighty-one and a half acres, of which the twenty-five acres conveyed to Kelkenberg constitute no part. Kelkenberg does not defend. And it is not seen how the decision of the court can properly determine matters not within the issues presented by the pleadings, and as to parties who do not appear, and as to whom no defense is alleged. In view of the relation, incidentally made to appear by the evidence, which Hunt assumed by his covenant, collateral to the conveyance by Zimmerman to Kelkenberg, he would have the right to appear and defend for the latter, and might for his own protection be required to do so upon receiving from him a notice that the action was commenced against him, and a request to defend it. And it may be that a defense could be effectually made in his behalf upon the ground that he was a purchaser in good faith, without any notice of the unrecorded mortgage to the plaintiff, but the finding to that effect in this action is not within any issue made by the answer. The defendant Hunt does not assume to appear and answer for Kelkenberg, nor is there any reference in the answer to any facts which would permit him to defend for that defendant.

We are to deal only with the issues presented and tried, and the decision of the court is legitimate only so far as it treats and disposes of those issues. The defaults of parties defendant, if there are any, are to be treated as such. We have nothing to do with them on this appeal. They are to be disposed of at special term on proper application. And if any party in default desires to open it and defend, the application for that purpose can properly be made there.

No other question seems to require the expression of consideration.

We think the complaint was improperly dismissed as to defendants other than Hunt and those who derived through or under him some claim or title to the land conveyed to him.

The defendant Hunt is entitled upon the findings, supported by the evidence, to such relief as will protect his title derived from the deed to him, and that of all persons holding under him, from the lien of the plaintiff’s mortgage.

The judgment should, therefore, be so modified as to adjudge that the complaint be dismissed as to the defendant Hunt, and the two defendants Seibert, and as so modified, affirmed.

Smith, P. J., and Haight, J., concur.


text:
    Stephen Hunt, Resp’t, v. Ira Raplee, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Deed—Covenant of seizin—Warranty of quiet possession—Boundary BY TOW-PATH OF A CANAL.
    In an action for the breach of the covenant of seizin and warranty of quiet possession contained in a certain deed, which conveyed a lot in the village of Penn Yan, lying between a certain street and what was formerly the Crooked Lake canal. The deed described the lot as bounded on the north by the “ tow-path " The canal had been abandoned several years before the deed was executed and was not in use, and the state had conveyed the land to a railroad company. There was evidence tending to show that the “ tow path” was visible at the time of the conveyance, and that the canal lands owned by the state extended twenty feet south of the “ tow-path,” or of the place where the “tow-path” appeared to be at the time of the execution of the deed. From that portion of the deeded premises which-belonged to the state, the plaintiff was subsequently evicted by the grantee of the state. When the parties were in negotiation the defendant took the plaintiff on the premises and showed him the lot. The “ tow-path ” was then visible, the lot was all open to the canal and nothing was said about the “state line ” Held, that by the terms of the deed, interpreted in the light of the attendant circumstances, the northern boundary designated was the tow-path, or beaten track, as and where it existed at the date of the conveyance, and not the stale line. (Cases distinguished.)

    2. Same—Presumption as to extent of grant bounded by “canal” or “tow-path."
    The state owns her canal in fee, so that in the case of a deed bounded by the “canal” or “tow-path,” there can be no presumption ordinarily that the grant extends beyond tire exterior line of the “canal” or “tow-path.”
    3. Same—Measure of damages for breach of warranty of quiet possession.
    The measure of damages in an action of this description is such part of the original price as bears the same ratio to the whole consideration, that the land to which the title has failed bears to the value of the whole premises. Ordinarily the recovery does not include subsequent improvements or a use in market value, but it is limited to an aliquot part of the value of the entire premises as fixed by the price paid with interest for not exceeding six years. (Cases cited.)

    Appeal from a judgment entered on a verdict rendered at the Yates circuit, and from an order denying a motion for a new trial on the minutes.

      Charles S. Baker, for app’lt; M. A. Leary, for resp’t.
   Smith, P. J.

Action for breach of covenant of warranty of seizin and quiet possession. The covenants were contained in a deed executed in November, 1880, whereby the defendant and his wife, in consideration of the sum of $750, conveyed to the plaintiff a house and lot on the northely side of Lake street in the village of Penn Yan, lying , between said street and what was formerly the Crooked Lake canal. The deed described the lot as bounded on the north by the “ tow-path.” The canal had been abandoned several years before the deed was executed, and was not in use, and the state had conveyed the land to a railroad company, but there was evidence given at the trial tending to show that the “tow-path” was visible at the time of the conveyance, and that the canal lands owned by the state extended some twénty-feet south of the “tow-path,” or of the place where the “tow-path ” appeared to beat the time of the execution of the deed. From that portion of the deeded premises which belonged to the state, the plaintiff was subsequently evicted by the grantee of the state, and this action .was brought in consequence.

The answer denied certain allegations in the complaint, and alleged that at the time of the conveyance neither party knew exactly where the north line of the lot, or the south line of the tow-path was located, but the intention of both parties was that the deed should convey so much as the defendant owned from Lake street northwardly towards the tow-path, and no more, and that if it should be held “that the language employed in the deed covers any of the state lands on the northerly side of the premises described therein,” it was the result of a mutual mistake; and the answer demanded that the deed be reformed in that particular.

The issue as to the alleged mistake was litigated and submitted to the jury, and upon that branch of the case no question is now presented.

The principal question in the case is presented by the contention of the learned counsel for the defendant, that the description in the deed, properly interpreted, carries the plaintiff no further north than to the southerly line of the canal lands, the two-path having been situated on the south side of the canal. His argument is understood to be that the word “tow-path,” as used in the deed, is a general and not a particular designation of the north boundary of the premises, and that it includes, not merely the beaten path, but also the adjacent lands proper and necessary for its construction and maintenance; in other words, the entire strip of land owned by the state on the tow-path side of the canal.

There maybe cases in which the interpretation contended for should prevail; whether this is one of them, depends to a great extent, in our opinion, upon the particular circumstances.

When the parties were in negotiation, the defendant took the plaintiff, and his wife on to the premises and showed them the lot in the rear of the house. It is apparent from the testimony that the tow-path, or the beaten track, was then visible, and that the plaintiff saw it, although, as he testified, he did not notice particularly its location with Reference to where the railroad track was that had been built subsequently. The plaintiff testified that on that occasion—

Nothing whatever was mentioned about any state line, or any land belonging to the state, or tow-path. There was a tow-path there, and that was all I understood about it. The words “state land,” that he was going to deed me to the state land, was not mentioned at all. I had no idea where the state lands were, but I could see the tow-path. When Raplee and I were over there talking, there wasn’t any line located where the deed was to go, not a word; and it was all open so that I could look down to the water, except a little fence on the north side I most certainly want the jury to understand there wasn’t a word said, about where the north line was when we were there.

The fence spoken of was elsewhere described by the same witness, as a length or two of an old fence standing about a foot and a half north of one of the out-houses, which was stated to be four or five feet from the main building. Soon after that interview the parties met at the office of Mr. Andrews, who drew the deed. The plaintiff’s version of what then occurred is as follows :

My wife and I sat away back in the office, and Mr. Raplee and Andrews were talking together. I think Raplee went and got another deed. We didn't know what they were really talking about till my wife and I heard Mr, Andrews say something about the tow-path, but we couldn’t understand what it was they were talking about. It was not stated in my hearing in the office by Mr. Andrews that he considered the tow-path included all the land belonging to the state, and Raplee did not say he would only deed me what he himself owned; that he would only deed to the state land. I did not hear anything said by Raplee to Andrews upon the subject as to where the line was.

This testimony was controverted, but in view of the manner in which the case was disposed of by the court, we must regard the statement of the plaintiff as having been accepted as true. The court charged the jury that the plaintiff was entitled to recover, unless there was mutual mistake in drawing the deed, thus taking from the jury every question of fact except that of mistake and the amount of damages. To that charge there was no exception. The jury having found that the description was not the result of a mutual mistake, the only question is whether the parties intended by the use of the word “tow path ” to designate the south line of the state land as the boundary. Whether that question is one of law purely or a mixed question of law and fact, it is obvious from the course of the trial that it was left to the decision of the judge. If it was a question of fact, his decision is conclusive. If it was a question of law merely, arising upon a given state of facts, then the statement of those facts, given by the plaintiff’s witnesses, although controverted, must be regarded as having been adjudged to be true.

Now, as has been said, there may be cases where the construction contended for by the defendant’s counsel would apply. If, in this case, the limit of the canal land had been marked by a fence or other visible boundary, to the knowledge of both parties, it might well be held that the parties, by the use of the word “tow path ” meant the land included within such boundary, and not the mere beaten path. As the term “highway” would be held to include the entire width of the road, as laid out and fenced, and not merely the traveled track. But here there was nothing to indicate the location of the boundary of the state land, or that the state owned any land south of the beaten track of the tow path. The state map, which the defendant’s counsel put in evidence, and on which he relies very much in his argument, was not referred to in the deed, and does not appear to-have been known to the parties. The fact that the location of the beaten track was changed to some extent, from time to time when the canal was in use, is immaterial, the question being whether the deed referred to the visible, worn track, as it appeared at the time of the conveyance.

The appellant’s counsel cites the case of Northrop v. Sumney (27 Barb., 196), which holds that when a grantor bounds the land which he conveys by the land of another, he does not undertake that the visible division fence is upon the true line, but he leaves the true line to be ascertained. If Raplee in deeding to Hunt had bounded by the lands of the state, the case cited would have been an authority for-saying that he could not be held to have undertaken that the visible tow path was the true line. But suppose, in the case cited, the land had been bounded by the fence, could it have been successfully claimed that the grant extended to the actual boundary line beyond the fence?

The appellant’s counsel contends that the case is analogous to that of a highway named as a boundary, and refers to the general rule that in such case the center of the highway, as laid out and established, is the boundary, unless the language excludes it and limits the grant to 'the-exterior line. That rule is founded upon the presumption that the ground was originally taken from the adjoining owner, and for the sole purpose of being used as a thoroughfare. Dunham v. Williams, 37 N. Y., 251. But the state owns her canal in fee (Rexford v. Knight, 15 Barb., 627; S. C., affirmed 11 N. Y., 308, 314), so that in the case of a deed bounded by the canal or the “ tow path,” there can be no presumption ordinarily that the grant extends-beyond the exterior line of the canal or tow path. The case of Dunham v. Williams (supra), is cited by the defendant’s counsel as an exception to the rule above stated as to the presumption that a grant bounded by a highway goes to the center.

That was an action of ejectment to recover to the center line of lands that had been taken years before for a highway. The highway had been abandoned. The plaintiffs based their claim to recover upon the fact that the deed through which they deduced title bounded their land on the highway. But it appearing that the highway was laid out on land belonging to another, it was held that the presumption was repelled, and the plaintiffs could not recover. But that case, we conceive, has no application here, except as an authority for holding that Hunt, by his deed, acquired no title beyond the southerly limit of the lands of the state, and that fact constitutes his grievance. We are of the opinion that by the terms of the deed, interpreted in the light of the attendant circumstances, the northern boundary designated was the tow path, or beaten track, as and where it existed at the date of the conveyance.

These views would lead to an affirmance of the judgment, but for a question presented by one of the exceptions. The plaintiff, testifying in his own behalf, was asked how much in his judgment the premises were worth with the land in the rear taken off. What then occurred is stated in the printed case as follows: “Mr. Baker” (defendant’scounsel) “objected as incompetent and immaterial, and is not the proper measure of damages; that the rule of damages is the value of the land taken.” “By the court: My impression is, that the rule of damages in this case, is the value of the property taken, or the value of the property from which there has been an eviction, considered as a portion of the whole lot conveyed. ” “By Mr. Leary ” (plaintiff’s counsel): “I claim the rule of damages to be the difference in the value of these premises as they were with this land annexed, and as they are without it.” “By the court: That is my opinion. I think you should prove the value at the time of the purchase of the whole, and then the value of that which remains. ’’ ‘1 Mr. Baker excepted. ” The question was then repeated in the following form: “ How much, in your judgment, are these premises worth with the land taken off ? What would it be worth in the market ?” Answer: “It would only be worth half to me.” Question: Not to you, but to any man wanting it as a place of residence?” Answer: “If I am allowed to say, the place has cost me, with the improvements I have put on it, $900, and anybody can take it for half of that money if they will take it now.” Question: “I would like to have you answer my question. How much less are the premises worth in consequence of this loss of the land fourteen inches south of the line ? ” Answer: “Three hundred dollars.”

It is obvious from this transcript of the case that the defendant’s objection was overruled and the testimony offered was received upon the idea that the measure of damages is the difference in value between the entire premises described in the deed and the portion remaining after the eviction. That is not the rule. The measure of damages in actions of this description, we understand to be such part of the original price as bears the same ratio to the whole consideration, that the value of the land to which the title has failed bears to the value of the whole premises. Morris v. Phelps, 5 Johns., 49; Giles v. Dugro, 1 Duer., 331. Ordinarily the' recovery does not include subsequent improvements, or a use in market value, but it is limited to an aliquot part of the value of the entire premises as fixed by the price paid with interest for not exceeding six years. Staats v. Ten Eyck's Executors, 3 Cai., 111; Pitcher v. Livingston, 4 Johns., 1; Kinney v. Watts, 14 Wend., 38, and cases there cited by Sutherland, J., p. 41; Kelly v. Dutch Church of Schenectady, 2 Hill, 105, 116; Rawle on Cov. (4th ed.), 235. The reception of the testimony was error.

The error cannot be regarded as cured by what followed. The examination of the witnesses, subsequently called on both sides, upon the subject of value, seems to have been conducted with a view to the rule above laid down as the true one, and the judge charged the jury in accordance with such rule. And there was unobjectionable testimony given which warranted the amount of the verdict. But the improper testimony above pointed out was allowed to be considered by the jury. It is impossible to say that it did not influence the verdict. The error, therefore, was not cured. Erben v. Lorillard, 19 N. Y., 299. Had the objectionable testimony been withdrawn, or had the jury been directed by the court to disregard it, the error, perhaps, would have been cured. Mandeville v. Guernsey, 51 Barb., 99; S. C. affirmed, 50 N. Y., 669.

It was probably error to sustain the objection taken to the question put by the defendant’s counsel, to the plaintiff, on cross-examination, as to whether, when he was looking at the premises, Raplee did not tell him that he did not know where the north fine was. The question related to an interview and transaction upon which the plaintiff had given testimony in his own behalf, and the inquiry seems to have been within the strict limits of a cross-examination. But it is unnecessary to decide the point, definitely, as there must be a new trial, and it may then be avoided.

For the error above pointed out, the judgment and order should be reversed, and a new trial granted, costs to abide the event.

Haight and Bradley, JJ., concur.