text:
    Henry J. Pierson, as Supervisor, etc., App’lt, v. Board of Supervisors of Wayne County et al., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

      1. Limitation — Action by town — Sinking fund law.
    A cause of action by a town against a county for portion of taxes collected under chap. 987 of 1869, arises at the time the misappropriation of the money was made and is subject to the six-years’ statute of limitations.
    2. Towns — Sinking fund — Counterclaim.
    In an action by a town against a county for the portion of taxes collected under chap. 907 of 1869, there is to be deducted from the railroad taxes, collected in said town in each of the six years for which a recovery is had, the part thereof, if any, paid to the town for town purposes.
    Appeal from a judgment, entered in favor of plaintiff for part of the claim sued for.
    This is an action brought by the plaintiff, as supervisor of the town of Arcadia, in said county, against the board of supervisors and the county treasurer of said county, to recover certain tax moneys which were levied upon and paid by the Sodus Bay & Southern Division of the Northern Central Railway Company from the year 1872 to 1886, inclusive, and to which said town of Arcadia claims to be entitled under the provisions of chapter 907, Laws 1869, and the acts amendatdry thereof, and commonly known as the_ “Funding Law,” by which it is provided that “ all taxes, except school and road taxes, collected for the next thirty years, or so much .thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for whicli said town, village or city has issued or shall issue bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, city or village lies. It shall be the duty of said treasurer, with the money arising from taxes levied and collected as aforesaid, which has heretofore been or shall hereafter be paid to him (including the interest thereon), to purchase the bonds of said town, issued by said town, to aid in the construction of any railroad or railroads, when the same can be purchased at or below par; the bonds so purchased to be immediately canceled by said treasurer and the county judge, and deposited with the board of supervisors. In case said bonds so issued cannot be purchased at or below the par value thereof, then it shall be the duty of said treasurer, and he is hereby directed to invest said money so paid to him as above mentioned, with the accumulated interest thereon, in the bonds of this state or of any city, county, town or village thereof, issued pursuant to the laws of this state, or in bonds of the United States. The bonds so purchased, with the accumulated interest thereon, shall be held by said county treasurer as a sinking fund for the redemption and payment of the bonds issued or to be issued by said town, village or city in aid of the construction of said railroad or railroads.’’
    The total amount of taxes levied upon and collected from said railroad company in said town, during the years aforesaid, was $9,213.28, as more fully appears from the schedule set forth in the complaint. It is also claimed that by reason of the failure of said board of supervisors to deduct the valuation of said railroad from the aggregate valuation of the county, and to deduct the assessed valuation of said railroad from the total valuation of said town, a larger sum was levied and assessed upon said town in each of said years than should have been assessed and levied, by the sum of $3,793 12, as more fully appears in the schedule contained in the complaint. Judgment is asked for the said sums of $9,213.28, and $3,783.12, respectively, and also that the said first-mentioned sum and interest thereon be levied and collected from the taxable property of said county, and paid into the treasury thereof, and that the said county treasurer be directed to apply the same to the purchase and payment of the bonds of said town issued by it in aid of said railroad, in accordance with tlie provisions of the statutes above referred to. The court found as facts that the taxes levied and collected of said railroad company m said town from 1872 to 1886, inclusive, amounted to $9,213.28, and that said railroad company had paid during said period $3,783.12 more in state and county taxes than it should have paid; that the amounts for each year were received by said board of supervisors on the 15th day of February next succeeding the year in which they were paid; that in each of said years said board of supervisors levied, assessed and collected taxes upon all taxable property of said town, including said railroad, and in each of said years ordered and directed certain sums to be paid therefrom to the supervisor, commissioner of highways and overseer of the poor of said town, which sums were so paid to them; that the taxes assessed on and collected from said railroad were not separated or set apart from said other taxes collected in said town, but were mingled therewith, a share or proportion thereof being paid to said supervisor, commissioner of highways and overseer of the, poor of said town, by order of said supervisors in each of said years; that the moneys collected and received as taxes from said railroad were paid out by said county treasurer by order and direction of said board of supervisors for other purposes than those named in section 4, chapter 907, Laws 1869, as amended j and that none of said moneys have been used or invested as in said acts required.
    This action was commenced on the 11th day of January, 1887. The court found, as conclusion of law, that the cause of action alleged in the complaint for and in regard to the taxes which were levied and assessed in and for the years 1871 to 1880, inclu sive, and which were paid to said county treasurer more than six years before the commencement of the action, is barred by the statute of limitations, and that the plaintiff was entitled to judgment for the amount of the taxes levied, assessed on and collected from, said railroad in the years 1881 to 1886, inclusive ; that the taxes'so levied, assessed and collected during said years amounted to $1,825.26, which sum plaintiff was entitled to recover, after deducting therefrom the share or portion thereof which has been paid to the supervisor, commissioner of highways and overseer of the poor of said town. The court ordered "a reference to ascertain said amount, according to the rule laid down in its opinion, and said referee reported the sum of $1,533.48 as the amount which the county treasurer of Wayne county shall invest and use for the purposes ordered and directed in the interlocutory judgment herein, and which shall be furnished and raised by the board of supervisors as directed. The rule and method by which said referee arrived at the conclusion above set forth", appeared in his report. Final judgment was granted on the 27th day of August, 1894, confirming the interlocutory judgment and the referee’s report thereon, and overruling the plaintiff’s exceptions thereto. The final judgment directed said county treasurer to apply and invest said sum of $1,533.48 and interest in the manner prescribed by chapter 283 of the Laws of 1871; and, in case there were not sufficient moneys in the county treasury of Wayne county, the defendant board of supervisors were directed to levy, assess and collect the moneys necessary to carry the judgment of the court into effect.

      Stephen B. Williams, for app’lt; J. W. Dunwell, for resp’t.
   Werner, J.

— The first question which requires consideration is whether the six years statute of limitations applies to this case. Appellants’ counsel insists that the defendants are trustees of an express trust created by chapter 907, Laws 1869, and the laws amendatory thereof, and that the six-years statute of limitations does not apply. It is contended that this is not an action for moneys had and received, but to enforce by equitable decree the-performance of a continuing duty to apply the moneys received from taxes upon said railroad for the benefit of said town, according to the provisions of said statutes. In view of the decisions upon this question, there is no doubt as to the character of the action. It is now definitely settled that the six-years statute of limitations does apply. While the duty of the defendants is in the nature of a public trust, the law provides two remedies in case of a breach thereof. The first is by a proceeding under the statute to compel the application of moneys in accordance with the terms thereof, and this proceeding may be instituted by any taxpayer of the town whose interests are affected. The second is by action which, although brought in equity, is in effect an action for moneys had and received. Where the former remedy is invoked, the statute of limitations may have no application. This question we do not decide. Where the right is sought to be enforced by action, the remedy must be pursued within the period fixed by the statute of limitations. In such a case as this the cause of action arises when the misappropriation is made. The statute then begins to run against it, and an action brought more than six years thereafter is barred. Strough v. Board of Sup’rs, 119 N. Y. 212 ; 28 St. Rep. 967.

The case of Spaulding v. Arnold, 24 St. Rep. 879, and 125 N. Y. 184; 34 St. Rep. 890, cited to sustain the contention that the trust duty imposed upon the defendants is a continuing one, from the performance of which they cannot be relieved by pleading the statute of limitations, is not in conflict with the rule laid down in Strough v. Board of Sup’rs, supra. The Spaulding Case was a proceeding under the statute; but it was also clearly distinguishable from the present case upon another ground, as appears from the language of the court at page 199, 125 N. Y. Referring to the Strough Case, the court says:

“ From the moment of misappropriation a cause of action arose in favor of the town, and the statute of limitations commenced to run. Here there has been no misappropriation. The fund still remains in the hands of the county treasurer, and his duty to invest it as the statute requires is still as imperative as it was the first moment the funds came into his hands.”

The case of Kilbourne v. Board of Sup’rs, 41 St. Rep. 838 ; 33 N. E. 159; was an action like this. It was held that the six-years statute of limitations applies. The court of appeals, in arriving at this conclusion, has evidently taken the ground that while the action is in equity, and the decree may provide for the specific performance of the duties imposed by the statute which are necessary to make the judgment of the court effectual, the gist of the action is that the defendants have received, to and for the use of the town on whose behalf the action is brought, moneys which have been wrongfully appropriated to other uses.

If the moneys received by the county treasurer from the town of Arcadia for taxes collected from the Sodus Bay & Southern Division of the Northern Central Railway Company between 1872 and 1886 had remained in the county treasury, or there had been at all times since 1872 a general fund not appropriated to other specific purposes, which was sufficient to create the sinking fund provided for by this statute, this case would be analogous to Spaulding v. Arnold, supra, in which the continuous possession of the fund and the continuing character of the duty imposed upon the county treasurer were held tc prevent the application of the statute of limitations. Or if, the statute of limitations having been properly pleaded, .there has been no proof showing the misappropriation of the fund to other purposes than those directed by the statute, the case would come within the rule laid down in Kilbourne v. Board of Supervisors, supra. But neither of these features is presented here. The evidence shows that all of the railroad taxes received by the county treasurer went into one general account with other tax moneys, and were paid out from time to time in payment of debts of the county, and that no portion of the same were applied vto the purposes provided for in the statute under consideration.

A careful perusal of this evidence convinces us that, while it is not so explicit and detailed as to show precisely when and for what purposes said moneys were paid out, it is, nevertheless, sufficient to warrant and sustain as they were received by the county treasurer. The fact of misappropriation having been established, the application of the statute of limitations necessarily follows, unless it was the duty of the defendants to show affirmatively that there were not sufficient funds in the county treasury to create the sinking fund required by the statute. While the defense of the statute of limitations is an affirmative one, we think it is made out when the misappropriation of the funds designed for that purpose is shown. There is no evidence to show that there were other funds in the hands of the county treasurer during the years referred to which might have been applied to this purpose, and we are not at liberty to assume that there were such funds. The evidence was therefore sufficient to warrant and sustain the fifteenth finding of fact, to which an exception was taken but not upon the ground that it is contrary to or not warranted by the evidence. This finding of fact justifies the fifth and sixth conclusions of law, to the effect that plaintiff’s claim is barred, except as to taxes paid within six years prior to the commencement of the action.

The next question raised by plaintiff’s exceptions is whether the trial court erred in deducting from the railroad taxes collected in said town in each of the six years for which recovery was had, the part thereof paid to the town for town purposes. If this were a proceeding under the statute, Clark v. Sheldon, 134 N. Y. 337; 48 St. Rep. 279, would be decisive of the question; but since this is an action in effect for moneys had and received, we do not perceive why it is not governed by the principles applicable to actions of this character. Such an action is subject to counterclaim, set off, recoupment, and such other defenses as will tend to limit plaintiff’s recovery to the actual amount to which he is entitled. It would be absurd and unjust to hold that-in an action governed by. these principles a plaintiff could again recover what he has once had.

In Clark v. Sheldon, 134 N. Y. 337; 48 St. Rep. 279, the court of appeals, in discussing this question, says:

“ If this proceeding can be decided upon principles applicable to an action between the town and county, the decision of the general term, could probably be upheld; but that view, I think, proceeds from a misconception of the purposes and provisions of the statute, and the assumed analogy cannot be sustained. * * * The cases that have been referred to in the opinion of the general term and the brief of the respondent were actions by towns against the counties to compel the application to the sinking fund of state and county taxes which the county had misappropriated by directing the county treasurer to apply to purposes other than the sinking fund. They proceeded upon the doctrine of money had and received by the county which the law had appropriated to the payment of a corporate obligation of the town; and, of course, in such a.n action the town taxes were not involved, as they never came into the possession or under the control of the county, and consequently no question of estoppel .or waiver was presented.” We think the trial court decided correctly in deducting that portion of the railroad taxes which has been received by the town.

The court did not err in holding that plaintiff was not entitled to recover for overassessment or overpayment of taxes from 1872 to 1885, inclusive, by reason of the failure of the board of supervisóos to set aside or deduct the valuation of the said railroad from the aggregate valuation of the county, and to deduct the assessed valuation of the said railroad from the total valuation of said town. A clear remedy is provided for overassessment by the statutes, which need not here be referred to.

The judgment of the court below should be affirmed, with costs. All concur.


source: Caselaw Access Project

author: Ward, J.

license: Public Domain

text:
    George F. Tillitson, App’lt, v. Alvin E. Nye et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Usury — Compound interest.
    Compounding the interest, and promising to pay it, by the borrower, is valid and binding, if supported by a consideration.

      2. Same — When interposed.
    If the defense of usury to a mortgage exists, it must be interposed in an action in which the mortgage is foreclosed, and cannot subsequently be made the basis of an action to set it aside.
    Appeal from a judgment, dismissing the complaint at the opening of the case.

      W. E. Edmonds, for app’lt; W. A. Sutherland, for resp’t.
   Ward, J.

— The judgment in this case dismissed the complaint “on the opening,” with costs. What the opening was does not appear in the papers before us, but the counsel seems to assume, upon the argument, that the complaint was-dismissed because it did not allege a cause of action; and if it did not, the appellant’s counsel admitted the judgment should be sustained. In such a case, a motion to dismiss the complaint on the opening is proper. Sheridan v. Jackson, 72 N. Y. 170. The complaint set forth the giving of three mortgages. The second mortgage embraced certain items of interest that had accrued on the first mortgage, with the interest computed on the accrued interest, or what is usually termed “compound interest.” Upon the execution of the second mortgage, the first mortgage was satisfied and discharged. The third mortgage contained, with other considerations, an amount of compound interest, which was computed on the accrued interest, of the second mortgage. Upon the last two mortgages an action of foreclosure was instituted in the county court of Monroe county, in which the defendant was made a party. He did not defend the action, but attended the sale and forbade it.

Compounding the interest, and promising to pay it, by the borrower is valid and binding, if supported by a consideration. Young v. Hill, 67 N. Y. 162. The complaint shows a consideration for each mortgage. The ground of this action is that the mortgages are void for usury, on account of the compound interest inserted therein, and should be set aside, but the complaint, does not allege any fact which would constitute usury or make the mortgages void. Besides, if the defense of usury existed to these mortgages, it should have been interposed in the action in which the mortgages were foreclosed. Bartholomew v. Yaw, 9 Paige, 165; Moses v. McDivitt, 2 Abb. N. C. 47; Thompson v. Berry, 3 Johns. Ch. 395; affirmed, 17 Johns. 436; Vilas v. Jones, 1 N. Y. 274. If th.e foreclosure was defeated for usury in the mortgages, the .judgment in that action would have amounted to the destruction of the mortgages, and been availableias a defence whenever an attempt should be made to enforce them.

The judgment should be affirmed, with costs.

All concur.


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    Mary Smith, App’lt, v. Maria Moulson, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Appeal — Exception.
    Where there is a finding of fact without evidence, it is a question of law and an exception is necessary to bring up the case for review.
    Appeal from a judgment, dismissing the complaint.

      William H. Edmonds, for app’lt; F. E. Hr Drake, for resp’t.
   Ward, J.

— The principal objection raised to the judgment by the appellant is that the court found that a contract for the purchase of the land between the parties had not been made, and there was no evidence to support that finding. Where there is a finding of fact without evidence, an exception is necessary to bring the case up for review, as it is a question of law. Mead v. Smith, 28 Hun, 639; Underhill v. Nichols, 8 Wkly. Dig. 276; Healy v. Clark, 120 N. Y. 642 ; 30 St. Rep. 897. There was no exception to the ruling of the trial court, filed as required by sectian 994 of the Code of Civil Procedure. At all events, there should have been exceptions to the conclusion of law that the complaint be dismissed.

The judgment should be affirmed, with costs.

All concur.


text:
    James S. Glenn, Resp’t, v. Charles Rossler et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Vendor and purchaser — Dependent covenants.
    Where, under a contract for the purchase of land, payments are to be made in installments, the covenants to pay are independent, but, when the last installment becomes due, the payment of the money and the conveyances of the land become dependent acts.
    2. Same.
    Where the vendor has no title or a defective title, any precedent condition on the part of the vendee need not be fulfilled.
    8. Same — Extension of time.
    Where the vendor is without title, he has no right to time to acquire it after the deed is due.
    4. Same — Rescission.
    The fact that the vendee has, by contract, conveyed a part interest in the land to another person, does not preclude him from rescinding his contract with the vendor on the ground of a breach of contract.
    5. Same — Condition.
    Where the vendee is to give back a bond and mortgage, the declaration of the vendor that he cannot deed relieves the vendee from tendering the bond and mortgage.

      Charles F. Tabor, for app’lt Ditzell; John M. Chipman, for app’lt Rossler; Tracey C. Becker, for resp’t.
   Ward, J.

— The defendants contracted to sell to the plaintiff about 130 acres of land located on the Niagara river, in Erie county, on the 11th day of March, 1893, for $138,347, $1,000 of which was to be paid in seven days, $5;000 April 15th, $10,000 July 1st, and $10,000 October 1, 1893, with interest at the rate of six per cent per annum on all sums remaining unpaid at each payment; and the contract further provided that:

“ The party of the first part (the defendants) shall after the payments mentioned herein are fully made on this contract, at their own proper cost and expense, execute and deliver to the said party of the second part (the plaintiff) a good and sufficient warranty deed of said premises, and at the time deliver to the second party a tax and title search, made by one of the guaranty search companies of the city of Buffalo, showing good and perfect title at the time deed to the said premises is executed and delivered by first parties to second party. The party of the second part agrees to execute and deliver to first parties a bond and mortgage for the sum of one hundred twelve thousand two hundred and thirty-seven dollars, due and payable six years from October 1st, 1893, with interest at the rate of six per cent, per annum, payable semiannually.”

The defendants did not have title to the-premises they had thus contracted to sell. They had only a contract to purchase from a widow, who had a life estate, simply, in them ; the fee of the land-being in her eleven children, five of whom were infants. All of the payments due before the first of October from the plaintiff, under his contract, were made, except the sum of $3,000 of the July payment, which the jury found had been extended by the agreement of the parties until October 1st. The first being Sunday, the parties agreed to transact the business hereafter stated on Monday, October 2d. On that day the plaintiff tendered to the defendants, in money, $17,330, due, by the terms of the contract, on October 1st, including the accrued interest, and demanded a deed of the defendants of the premises, pursuant to the contract. The defendants stated, in effect, that they were unable to give title as they had contracted to do, and asked delay to procure it of the owners, and that the money be deposited in a bank to wait their procuring such title. This the plaintiff refused to do, and retained the money, and the next day demanded of them the repayment of the moneys he had advanced upon the contract to the defendants, which amounted to about $13,000. This the defendants declined to do, whereupon this action was brought bjr the plaintiff to recover, among other things, the moneys so demanded, and interest.

The principal contention of the defendants here is that the payment of the money due October 1st was a condition precedent, under the contract, to the right of the plaintiff to a deed; that he could not make such payment dependent upon the deed being delivered to him ; and this was so notwithstanding the want of title in the defendants, as the covenants to pay and to deed were independent, and not dependent, covenants. This involves a consideration of the clause in the contract above quoted. We think the fair inference from that clause is that the deed was to be executed the same day as the payment, and the plaintiff was to have a tax and title search ; the object of the search being to assure the plaintiff that the defendants had title, before he should be required to pay the large sum of money due that day. When the title was shown, the payment of the money, the execution and delivery of the deed by the defendants, and of the bond and mortgage by the plaintiff, was the natural sequence. This view is strengthened by the fact that the bond and mortgage were payable with interest from October 1st, and this is the true construction, notwithstanding the provision as to the deed being given “after the payments mentioned herein are fully made upon this contract.” In determining the exact force of these words, we must examine the whole instrument, and consider the object the parties had in making it. Covenants are to be construed as dependent or independent according to the intention of the parties and the good sense of the case. Technical words must give way to such intent. M'Crelish v. Churchman, 4 Rawle, 26; Bredin v. Agnew, 3 Watts & S. 300; Wright v. Smyth, 4 id. 557. Although, where payments are to be made in installments, under contracts for the purchase of land, the covenants to pay are independent, and the vender can sue on each installment as it matures, yet when the last installment becomes due the payment of the money and the conveyance of the land become dependent acts. Beecher v. Conradt, 13 N. Y. 108; Johnson v. Wygant, 11 Wend. 49; Grant v. Johnson, 5 N. Y. 248 ; Eddy v. Davis, 116 id. 247; 26 St. Rep. 701. In the first case cited the vendor covenanted to convey if the vendee faithfully performed his covenants, among which was the payment of five annual installments of the consideration; and in the second case the covenant was, “and upon the payment thereof (the consideration) lam to receive from said Johnson a good warranty deed of said lands.” The rule in these cases is applicable here as the deed was due October 1st. In Robb v. Montgomery, 20 Johns. 15, 20, —a case largely running through the books, — the supreme court lay down the rule in this language:

“ In case the conveyance and payment are to be simultaneous acts, there then must be an existing capacity in the one who is to convey to give a good title. In the other case, where the payments are to precede the conveyance, it is no excuse for nonpayment that there is not a present, existing capacity to convey a good title, unless the one whose duty it is to pay offers to do so on receiving a good title, and then it must be made to him, or the contract will be rescinded.”

Later cases (Holmes v. Holmes, 12 Barb. 137; affirmed, 9 N. Y. 525; Lawrence v. Taylor, 5 Hill, 107, 115, and cases there cited) hold that where the vendor has not title, or defective title, any precedent condition on the part of the vendee need not be fulfilled, such as tendering payment or security; and the court, in the last case, say that to require such a performance in such a case would be “a most idle act.” This is the doctrine of the English courts, and seems to be well sustained by reason and authority. In Sir Anthony Main's Case, 5 Coke, 21 (on error), Sir Anthony leased to Scott for twenty-one years by indenture, and covenanted that at any time during Scott’s life, upon surrender of his lease, Sir Anthony would make a new lease, and gave bond to perform this covenant. In debt on the bond by Scott against Main, the latter pleaded that Scott did not surrender. Scott replied that Main, after the lease, had granted the reversion to another for eighty years, and on demurrer judgment was given to the plaintiff. The court says “ that Main had broken his covenant without a surrender, because he had disabled himself, and the law will not enforce any one to do a thing which will be vain and fruitless ; and although the lessee, by the words, was to do the first act, yet, as the lessor had disabled himself, his covenant was broken without that act.” This reasoning has never been answered. Whether we apply to the defendant’s contention the rule just stated, or the stricter one in Robb v. Montgomery, it cannot prevail, as the plaintiff made the proper tender of the money, and demand lor a conveyance, at the time fixed by the contract.

The defendants insist that they are entitled under the contract, or, if not by that, by virtue of some paroi understanding, to time to procure title of the owners. This is an action at law for the recovery of the money paid by the plaintiff. The complaint, we think, notwithstanding the defendants’ criticism of it, embraces this cause of action, and it is unimportant whether it embraces others or not. It was said by some of the witnesses that proceedings were on foot to obtain title from the infants through the court, but it did. not appear that the court had confirmed any sale of the infants’ property, and as a matter of fact the title of the infants was not secured till long afterwards. Certainly, the plaintiff could not be delayed in obtaining his title by a proceeding so full of uncertainty as this. He was entitled to his deed and title on the first of October, and, the defendants then being unable to furnish it, the plaintiff could recind the contract, which he did, and recover the money which he had advanced upon it. Northridge v. Moore, 118 N. Y. 419, 422; 29 St. Rep. 39, and cases cited. Where the vendor is without title, he has no right to time to acquire it after the deed is due. Camp v. Morse, 5 Denio, 161.

The defendants complain of the charge of the court in regard to the written agreement of August 31st, which provided, in effect, that there would be $17,330 due the defendants on the purchase of the land, October 1,1893. It is claimed that the court stated that that writing did extend the payment of the $3,000 remaining of the July payment (which had been extended to September 11 th) to October first. It is difficult to conclude otherwise from this writing, as the $3,000 was in fact embraced in the $17,350; but, be that as it may, when we take the whole charge together no exception can prevail against it, because it fairly submitted the question of extension to the jury.

The defendants also object because the plaintiff had, by contract, conveyed a half interest in the land to one Earnest, and that he could not rescind his contract with the defendants as long as that interest was outstanding. Whatever may be the rulé in cases of fraud, where there must be complete restoration by the party rescinding, the-point is not well taken here, for the reason that the recission is for a breach of the contract between the plaintiff and the defendants, which destroys the contract itself, and any rights that Earnest may have had were dependent upon that contract, and fall with it. At least, Earnest has no claim against these defendants, whatever he may have against the plaintiff. The defendants, therefore, cannot object.

The defendants finally object that the plaintiff is in default for not tendering a bond and mortgage, as well as the payment on October 2d, as required by the contract. Had the defendants been ready with their deed and title, the plaintiff was bound to have executed and delivered the bond and mortgage, but. as there was no title to deed, there was none to mortgage, and the declaration of the defendants that they could not deed relieved the plaintiff from tendering the bond and mortgage.

We find no reversible error upon this appeal, and the judgment and order should be affirmed.

All concur.


text:
    Joseph Lefrois, Resp't, v. Monroe County, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Appeal — Order- granting new trial.
    An order, granting a new trial on the merits in an action to recover damages for, and to enjoin, a nuisance, is appealable.
    3. Same — Discretion.
    An order, granting a new trial for inadequacy of damages, will not be disturbed unless the trial court abused its discretion.
    S. Trial — Jury—Waiver.
    Where a defendant, through the action of the plaintiff, is confronted in court by a claim for both equitable and legal relief, if the legal claim embraces matters that, under the Constitution or laws of the state, entitle him to a trial by jury, he may insist upon it, by taking the proper steps to have the issues settled, and he cannot be deprived of that right unless he has in some way waived it in the action.
    Appeal from an order, granting a motion to set aside a verdict on the ground that the damages awarded were inadequate.

      John Desmond, for app’lt; J. A. Stull, for resp’t.
   Ward, J.

— The respondent (to whom we shall refer as the plaintiff) brought an action in this court, in Monroe county, and alleged in his complaint that he was the owner of-about twenty-six acres of land in the vicinity of the city of Rochester, which he occupied as a dairy farm, and through a portion of which ran a small, natural stream, that had supplied his premises and his stock with pure water, which had become contaminated and rendered useless by filth and excrement that had been placed in the stream by the defendant. The defendant had public buildings near the plaintiff’s premises; also an open field, in which filth and deleterious matter had been deposited by the defendant, that, together with the polluted matter in the stream, had created offensive odor, to the great discomfort and annoyance of the plaintiff and his family, and covering a period of six years, and thereby his property became greatly depreciated in value; and claimed damages in a large ■amount, and prayed for an injunction restraining the defendant .from the pollution of the stream and a continuation of the nusiance. Issued being joined, the cause was tried in October, 1894, and resulted in a verdict for the plaintiff for $45.58 for damages before the action was commenced and $4.42 damages since the commencement of the action.' The plaintiff obtained leave of the court upon the coming in of the verdict to entertain a motion upon the minutes to set aside the verdict, under section 999, Code of Civ. Proo., among other things because the verdict was for insufficient damages, contrary of the evidence. The learned trial court set aside the verdict, and granted a new trial, without costs of the trial or of the motion to either party as against the other, on the •ground “that said verdict is for insufficient damages, and because the verdict is contrary to the evidence and weight of evidence, and not supported by the evidence on the trial.”

The respondent first meets us with the objection that the order granting the new trial is not appealable, as it is in express terms prohibited by subdivision 2 of section 1347 of the Code, which defines appealable orders, and permits an appeal from, an order where it grants or refuses a new trial, “except that where specific questions of fact arising upon the issues in an action triable by the court have been tried by a jury pursuant to an order for that purpose as prescribe in section 971 of this act an appeal cannot be taken from an order granting or refusing a new trial upon the rherits.n Turning to section 971, we find that that applies to a case where a party is not entitled as of right to a trial by jury, but to equity actions where questions of fact may, in the discretion of the court upon application by either party, be directed tobe tried by a jury. The plaintiffs contention is that this is an equity action simply, in which the court may order issues to be tried for its information and guidance in disposing of the questions arising in the case and granting the equitable relief sought, while the appellant claims that, although the plaintiff has sought equitable relief in the action it is substantially an action for a nuisance, and the defendant was entitled to a jury trial, under section 968 of the Code, which directs that such an action should be triable by a jury, or, if not under section 970 of the Code, which provides that, where a party is entitled by the constitution or by express provision of law to a trial by jury of one or more issues of fact in action specified in section 968, he may apply, upon notice to the court, for an order directing all questions arising upon those issues to be stated for trial; and, when those issues are stated, the subsequent proceedings are the same as in other cases where issues are stated, “except that the finding of a jury upon such questions so stated is conclusive in the action, unless the verdict is set aside or a new trial is granted.” The issues tried by the jury were stipulated between the parties, and an order entered thereon to the effect that the issue involving the liability of the defendant and the question of damages be tiled by a jury. The jury found that the defendant was liable as for the nuisance complained of, and fixed the damages as above stated. The question, therefore, is whether the issues were such as the defendant had a right to have tried by a jury under the constitution or the laws of this state." If so, the order was appealable.

In Hudson v. Caryl, 44 N. Y. 553, it was held, in an action to abate a nuisance, and recover damages occasioned thereby, that trial by jury is a matter of right, even if the complaint is in form for equitable relief against the continuance of the nuisance, and the prayer for damages may be regarded as incidental thereto, yet, as the existence of an alleged nuisance and the amount of damages were both inquired of by the jury before the adoption of the constitution, the constitutional guaranty of trial by jury applies to such actions as one of the cases which it had been theretofore used. And see Conderman v. Conderman, 44 Hun, 181; 7 St. Rep. 789. This right of trial by jury may be waived, but the defendant in this case lias done nothing to waive that right. The plaintiff cites Cogswell v. N. Y., N. N. & N. Railroad Co., 105 N. Y. 319; 7 St. Rep. 203. That was a case where the plaintiff in an action of nuisance had incorporated a demand for both equitable and legal relief, and afterwards sought a trial by jury of the legal issues. The court held that the plaintiff had waived his right too trial by jury by incorporating a.demand for equitable relief in his complaint, but quoted with approval Hudson v. Caryl; and the rule seems to be well established that where a defendant, through the action of the plaintiff, is confronted in court by .a claim for both equitable and legal relief, if the legal claim embraces matters that, under the constitution or laws of the state, entitle the defendant to a trial by jury, he may insist upon it, by taking the proper steps to have issues settled, and he cannot be derived of that right, unless he has in some manner waived it in the action. Lynch v. Met. E. Railroad Co., 129 N. Y. 278; 41 St. Rep. 541. It is not in the power of a plaintiff to deprive the defendant of the right of a jury trial on issues that entitle him to it, by incorporating in the complaint other issues of equitable character, and thereon demanding equitable relief. The case of Dean v. Benn, 69 Hun, 519; 52 St. Rep. 844; affirmed without opinion, 142 N. Y. 684; 60 St. Rep. 871, does not conflict with this view. That case went off on the questions of waiver and estoppel mainly. The question here presented was not before the court in that case, and it does not aid us.

We have reached the conclusion that this order was appealable. The evidence in the case, though voluminous and delivered from the lips of many witnesses, establish beyond question the fact that the acts of the defendant complained of constituted a serious nuisance to the plaintiff, and damage to his property. The appellant claims that we should set the order granting a new trial aside, because the evidence was conflicting, and there was evidence to justify the jury in their verdict. The cases bearing upon this subject resolve themselves into three classes: First. Where the verdict is attacked as excessive in damages, usually in cases of tort, where damages are awarded for negligence, and the trial court refuses to set the verdict aside, and the appellate court is asked to review such refusal. Second. In actions of contract, where the damages sought to be recovered were capable of being rendered certain by computation, and where it was apparent from the facts established that the jury had erred in arriving at the damages, — as in Algeo v. Duncan, 39 N. Y. 313 ; McDonald v. Walter, 40 N. Y. 551, — and where the trial court had granted a new trial. The third class involves actions of tort, such as this, where a new trial had been granted by the trial court, usually upon the minutes. In actions of tort, where the damages are so largely in the discretion of the jury, the courts have been cautious in granting new trial either for excess or insufficiency of damages, for the reason that the jury is the judge, whether there is evidence to support its verdict, of a substantial character, of the weight of the evidence and the credibility of the witnesses; but where the trial court has, with the jury, heard the witnesses, and is familiar with all the proceedings of the trial, and has set aside the verdict, the appellate courts have sustained such orders upon the principle well set forth in Barrett v. Railroad Co., 45 N. Y., at page 632, where the court say :

“Motions to set aside verdicts as contrary to evidence, as well as-motions for a new trial upon grounds of newly-discovered evidence, are not governed by any well-denied rules, but depend in a great •degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or ref used involves the inquiry whether substantial justice has been done; the court having in view solely that end.” To the same effect, see Glassford v. Lewis, 82 Hun, 46 ; 63 St. Rep. 484, and Young v. Stone, 60 St. Rep. 419, and cases cited.

In Kolly v. City of Rochester, 38 St. Rep. 797, where the plaintiff recovered a verdict for $15 for personal injuries, this department sustained the Monroe circuit in an order setting aside the verdict for insufficiency of damages. Judge Dwight says : “The verdict of the jury found both the issues tried in favor of the plaintiff, viz. the injuries and the defendant’s negligence, and .and that finding entitled him to full compensation for the in j ury which he had sustained. For that purpose the verdict was grossly inadequate, and must have been the result of unworthy and improper consideration prevailing with the jury.” •

In O'Shea v. McLear, 16 St. Rep. 482, an action had been brought under the civil damage act for damages resulting from the death of the plaintiff's husband. A small verdict was given, which the trial court set aside for insufficient damages, and the •court say that, the jury having reached the conclusion that the plaintiff had established a cause of action, it was their duty to award to her a reasonable compensation for the injuries which she had sustained. In Peck v. Fonda, J & G. Railroad Co., 25 St. Rep. 95, where a verdict in an action for damages occasioned to plaintiff’s land by the overflowing of a creek was set aside as against the weight of evidence, the general term of the Third department sustained the order, and say : •

“We are of the opinion that the justice before whom a cause is tried is generally better capable of judging in regard to the weight of evidence than an appellate court can be.”

These cases establish that the appellate court sustain orders of this character even in cases of tort, where the trial court had before it sufficient to appeal to and justify its discretion in the premises. A careful review of the evidence in this case will not justify us in dissenting from the learned trial court as to the order made, and it should be affirmed, without costs of the appeal to either party.

All concur, except Dwight, P. J., not voting.


text:
    In the Matter of the Estate of Samuel Hall, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    'Tax — Transfer—Distributive share.
    An estate is subject to the transfer tax where the aggregate amount thereof equal the sum named in the statute, though the share of each distributee is less than such amount.
    Appeal from a judgment in favor of certain of the heirs and next of kin.

      Emmet R. Olcott, for app’lt; Charles Hickey, for resp’t
   Ward, J.

— Samuel Hall, of Niagara county, died on the 27th day of October, 1892, intestate. In December following, letters of administration were issued on his estate by the surrogate’s court of that county, which estate of real and personal property amounted to about $4,400. The estate devolved upon a brother and niece of the deceased, each having a share exceeding $500, and upon John Hall and six other collateral relatives, each of whom was entitled to a share of $211.32. Proceedings were taken before the surrogate to determine the amount of collateral inheritance tax to be paid by the several beneficiaries of this estate. The surrogate decided that these shares of $211.32, being less than $500, were not taxable, and that the aggregate of those shares exceeding $500 could not be taxed under chapter 399 of the Laws of 1892, and the sole question here for review is whether he was right in that conclusion. The legislature, by chapter 483 of the Laws of 1885, imposed a tax of five dollars on every hundred dollars on “all propperty which shall pass by will, or by the intestate laws of this state,’’ of residents of the state, or which should be within the state, to collateral relatives, with a proviso that an “estate ” which may be valued at a less sum than $500 should not be subject to the tax. This statute was repealed by chapter 713 of the Laws -of 1887, but the features of the act of 1885, above stated, were retained. And by chapter 215 of the Laws of 1891, an important amendment was made to the act of 1887, to the effect that a tax should be imposed upon the “ beneficial interest to any personal property ” that should “ pass ” to or for the use of any father, mother, husband, wife, child, etc., of $1 on $100 on an estate that should be valued at $10,000 or over. The question arose under the act of 1885, whether the five per cent, tax should be imposed upon the aggregate of the property of the deceased that went to the collateral beneficiaries, or the property that went to each beneficiary. The court of appeals, in Re Cager's Will, 111 N. Y. 343; 19 St. Rep. 497, decided in 1888, and in Be Howe, 112 N. Y. 100 ; 20 St. Rep. 477, decided in January following, held that the tax was not imposed upon the aggregate, but upon the specific shares that went to each claimant, so that a share less than $500 was exempt. This was the state of the law when the legislature enacted chapter 399 of the Laws of 1892, entitled “An act in relation to taxable transfers of property,” and which was intended as a revision of all the laws upon the subject, and which repealed them all. Section 1 provided that “ a tax shall be and is hereby imposed upon the transfer of any property, real or personal, of the value of five hundred dollars or over,” whether by will or intestate laws of a person dying in this state or owning property within this state not exempt, etc., and the tax should be five per cent, of the value of such property. The second section provides that when the “ property ” passed by any such transfer to the father, mother, husband, wife, child, brother, etc., of the deceased, such transfer of property should not be taxable,. “ unless it is personal property of the value of ten thousand dollars or more,” in which case it should be taxable at the rate of one per cent, of the value of the property. Section 3 provides that all taxes imposed by that act should be due and payable at the time of the “ transfer,” except in certain contingencies. Section 22, which is entitled, a section of “ definitions,” provides that:

“The words'1 estate’ and 1 property ’ as used in this act shall be taken to mean the property or interest therein of the testator, intestate, grantor, bargainor or vendor, passing or transferred to those not herein specially exempted from the provisions of this act and not as the property or interest therein, passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees or vendees, and shall include all property, or interest therein, whether situate within or without this state, over which this state has any jurisdiction for the purpose of taxation. The word transfer ’ as used in this act shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale or gift, in the manner herein described.”' It is not assuming too much to say that the legislature, in making the revision of these statutes, and in adding important provisions in such revision, had in view the decisions of the court of appeals, and the doubts and controversies which led up to those decisions, and determined to define the law clearly upon the subject. In none of the previous acts had the legislature undertaken to define the terms it had used, but by the section last quoted, and the whole revised act, taken together, it seems to us that the judgment of the legislature is made clear; that its intention was to make the aggregate of the property that was transferred to the collateral relatives the test in determining the question of exemption. It is the “transfer” that is taxed, and not the “estate” of the beneficiaries respectively. It is the property as a whole as it descends from the decedent, and not the separate parcels into which it may be divided. This view is in harmony with the evident policy of the law, except in small estates of less than $500. In Re Hoffman's Estate, 143 N. Y. 327 ; 62 St. Rep. 245, the court of appeals considered the question whether, in the case of an estate in which there was a fund of $50,000 of personal property that had been bequeathed to several legatees, and where the amount received by one was only $9,235, the tax of one per cent, was collectible from the whole fund or upon the separate portions. It held that the aggregate of the fund was the basis upon which to determine the tax, and not the separate bequests, and, therefore, the legatee who received less than $10,000 was liable to be taxed for the amounts he received. The learned court in that case makes reference to other provisions of the statute, and to the conclusions that the court had reached, prior to the act of 1892, with reference to this subject; but the only question decided in that case is as above stated, and we must regard it as an authority for the position that we here assume, for certainly the same purpose is manifest in the act of 1892, — to tax the aggregate of the property transferred by the deceased, whether the tax falls under the one per cent provision or under the five per cent.

We are unable, therefore, to concur with the learned surrogate, and the order appealed from should be reversed, but without costs, and the proceedings remitted to the surrogate of Niagara county. All concur.


author: Hardin, P. J.

text:
    Frank Rhodes, Resp’t, v. Morris Carr, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Costs — Appeal—New trial in county court.
    Upon an appeal from a justice’s judgment to the county court for a new trial therein, the plaintiff is not entitled to costs where he recovers a judgment for less than fifty dollars, in case no offer of judgment upon the appeal has been made.
    Appeal from an order, denying a motion for retaxation of costs.
    Plaintiff brought an action in the municipal court of the city of Syracuse, and recovered the sum of $38.71 damages. Defendant appealed to the county court of Onondaga county, where a trial was had, and a verdict was rendered for the plaintiff for the sum of $38. Judgment for that sum was entered, with $70.86 costs. A motion was made for retaxation, which was denied, and the taxation affirmed, without costs of the motion. “ No offer was made to take or allow judgment by either party thereto, as provided by sections 3070-3072 of the Code of Civil Procedure.”

      Kline, Shove & Ludington, for app’lt; Talbott & Collins, for resp’t.
   Hardin, P. J.

— Chapter 522 of the Laws of^l885 amended section 3070 of the Code of Civil Procedure. In the last part of the section are found these words:

“ If neither party make an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be required to recover his costs upon the appeal. ”

That section falls under the construction in McKuskie v. Hendrickson, 128 N. Y. 555; 40 St. Rep. 619. In the course of the opinion it was said:

“ There is no provision in the Code giving the plaintiff costs in such a case against the defendant where the recovery is for less than $50, and no language was used indicating that such was the legislative intention. The only way in which plaintiff can secure his right to costs in such a case as this is by making an offer to take judgment for a sum specified, and then, if the defendant refuses to accept the offer, he will be liable to costs unless the recovery is more favorable to him than the offer. Here the plaintiff could have afforded to take the j ugdment in the county court for thirty dollars, or any other sum not exceeding thirty-five dollars, and could thus have secured his rights to costs.”

The rule laid down in the case from which the quotation has been made seems to apply to the case in hand, and the case was decided in 1891, subsequent to the decision made by this court in Sheehan v. Buller, 24 N. Y. Wkly. Dig. 168, in‘April, 1886, and .approved in Munson v. Curtis, 43 Hun,' 217, in January, 1887. Inasmuch as the plaintiff did not recover a sum sufficient to carry costs if the action had been brought originally in the county court, he is not entitled to recover costs entered in the judgment. Sherman v. Shisler, 6 Misc. Rep. 203. It seems to follow that the order of the county court is erroneous, and should be reversed.

Order reversed, with $10 costs and disbursements, and directions given to the clerk of Onondaga county to strike from the judgment the costs entered therein in favor of the plaintiff.

All concur.


text:
    Immaculate Conception Church, App’lt, v. Charles E. Sheffer, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Evidence — Easements.
    In determining the extent of a right of way, evidence as to the circumstances attending the practical and actual occupation of the land or right of way is admissible, where there is ambiguity or uncertainty as to the intention of the parties in using the language to be construed.
    2. Pleading — Proof.
    Where the complaint in trespass bases a right of recovery solely upon an allegation that the defendant tore down gates, removed a fence and injured the premises, a judgment in favor of defendants will not be disturbed merely because the evidence showed that defendant’s barn projected on plaintiff's land, where the plaintiff’s right to recover by reason of the location of the barn was not made a ground of relief during the progress of the trial.
    Appeal from a judgment in favor of defendant.

      Tompkins & Cobb, for app’lt; J. A. Elson, for resp’t.
   Hardin, P. J.

— Plaintiff’s complaint alleges ownership of certain lands, therein particularly described, situate in the city of Ithaca, in block 1Ó7, and that on the 26th of April, 1892, the defendant wrongfully entered upon the plaintiff’s land, described, “tearing down the gates and taking down the fences standing upon said land of the plaintiff, and removing the same, and injuring said premises, and thereby said defendant has deprived the plaintiff of the use and occupation of said land above described, and prevented it from enjoying the same as it otherwise would have done, to the plaintiff’s damage of one hundred dollars.” The answer contains several denials, and denies that the plaintiff is entitled “to a strip of land twelve feet wide, taken off from the north side of lot 182, the said strip of land being a portion of the premises described in this complaint in this action.” The answer of the defendant also alleges “ that he is entitled to use as a lane or alleyway, and for alley purposes, the lane, twelve feet wide, off from the north side of lot 182, block 107, on Plain street, in said city of Ithaca, said alleyway being a part and parcel of the land described in the complaint in this action.” The answer also alleges “that the said alley was reserved for a. right’ of way and alley purposes by Anson Braman, the former owner of said premises, for the use of lots 181 and 182, and also for the use of himself and his assigns." And the defendant alleges that he is the owner of lot 181, “ and has the right to use said alley or right of way off from the north side of lot 182.’’ The evidence reveals that both parties claim title to their respective-lands through Anson Braman, who, in 1847, purchased lots 182, 183, and 184, situated at the corner of Plain and Buffalo streets, in the said city. January 1, 1849, Anson Braman conveyed to Theron Seymour the corner lot, of sixty-six feet on Buffalo street, by one hundred and ninety-eight feet on Plain street, which is known in the evidence as the Wilgus or Doxstader lot. In the conveyance • so made there was a reservation, for the use of the balance of Braman’s lots, of a right of way twelve feet wide across-the north end of the land conveyed. The conveyance, after describing the premises as parts of lots Mos. 182, 183, and 184, contained the following language : “Reserving, however, to the said parties of the first part, their heirs and assigns, for the use of the balance of said lots, a right of way of an alley twelve feet wide on the north end of the premises hereby conveyed.” Subsequent to-the execution of that deed, and on May 8, 1850, Braman purchased of Williams lot 181, which was sixty feet wide on Plain street, and immediately joining his former ownership on the north. Subsequently, and on the 3d of September, 1868, Braman conveyed to Addison M. O’Daniel the west half of lot 186, being sixty-six feet by one hundred and thirty-two feet, and in that conveyance were the following words : “Together with the right of way over the lane taken off from the north side of lot 182, being a part of the same premises conveyed to said Anson Braman by deed from J. B. Williams.” The principal controversy at the trial was over the length of the lane mentioned in the language just quoted; the contention of the plaintiff being that the language vested the right to the grantee of a use of a right of way a distance of sixty-six feet from Plain street, whereas the contention of the defendant is that the lane was to. be extended one hundred and thirty-two feet from Plain street, so as to accommodate the entire length of the premises conveyed. The defendant has succeeded to all the right, title, and interest embraced in the deed last mentioned, inasmuch as O’Daniel conveyed to Mead, and Mead conveyed to Mary O'Daniel, and she conveyed to the defendant. Subsequently, and in January, 1869, Anson Braman, having published his last will and testament, died, and the devisee under his will conveyed the remaining portions owned by him to one Phillip Lynch, who conveyed to the plaintiff. Abundant evidence was given on the trial to indicate that at the time of the execution of the deed to O’Daniel, and for some time prior thereto, the lane which commenced at Plain street, and continued a distance of one hundred and thirty-two feet east over the north side of lot 182, had been used its entire length, and that a traveled way appeared, as the result of considerable use. Prior to the execution of that conveyance, Braman had carried on a nursery business on lots 181r 182, 183, and 184, for a number of years; and he resided on the east half of lots 183 and 184, and his barn was on lot 182, and faced the lane. There was also several buildings located along and adjacent to the lane, and Braman had been accustomed to use his barn and nursery grounds by passing over the lane from Plain street, that being the convenient means of ingress to his premises from Plain street; and there had been in use a portion of the time a gate at the east end of the barn, at a point one hundred and thirty-two feet east of Plain street. There was some evidence tending to show a use of the lane along the north side of lot 182 since about the year 1858, and its frequent use by Braman. It is made quite apparent by the evidence that when the defendant purchased the west half of lot 181 he had become familiar with the lane and its use prior thereto, and he had walked over the lane from Plain street, a distance of one hundred and thirty-two feet, for a period of some twenty years that he had been acquainted with it, and that prior to his purchase he had walked over it, and that he saw that it was open from Plain street to the east end of the lot which he acquired, to wit, for a distance of one hundred and thirty-two feet. In April, 1892, the defendant commenced building a barn on the back end of his lot, and using the lane for the purposes of carrying the building material through to the site chosen for the location of the barn. Before he had completed his building, and while he was still working upon it, the plaintiff', through its officers and agents, took means to close the lane, Replacing a gate across it, and locking the gate, so as to exclude the defendant from the use of the lane. After the gate had remained closed for some two or three days the defendant opened it, and resumed the use of the lane for the convenieuce of his building. During the trial the plaintiff conceded “that no part of the fence on the south side of the O’Daniel lot was taken down by the defendant, except so much thereof as was in front of, and necessary to make convenient access to, the barn.” The will of Braman, which bears date the 21st of June, 1866, devised to his vnfe that portion of the lands then owned by him, and, after a minute description of them, occur the words, viz. “including a right of way from the above described premises to said Plain street * * * ” After his will was probated his widow and heirs at law joined in an instrument executed on the 26th of April, 1876, conveying on Phillip F. Lynch the lands described in the complaint, and at the close of the description occur these words, “Together with the use of a right of way over the above described premises, to Plain street." Lynch, on the 16th of December, 1878, conveyed to the plaintiff the premises described in the complaint; and that conveyance, after the words of description, contains the following words: “Together with the use of a right of way from the above described premises to Plain street, in .the said village of Ithaca; being the same premises owned and occupied by Anson Braman, now deceased, in his lifetime, and described in the will of said Braman.”

From the language found in the conveyances just alluded to, it in apparent that it was the intention that the right of way should be for the convenience of the properties, to wit, the property owned by the defendant and the property owned by the plaintiff. In order to subserve fully the purposes of the right of way, and especially to enable the defendant to have full benefit thereof, it is quite reasonable to suppose that the intention of the parties- was that the right of way mentioned in the conveyance by Braman to O'Daniel should be of the entire length of the premises thereby conveyed to him. A careful perusal of the oral thestimony, although it is very conflicting, and would, perhaps, have warranted the referee-in reaching a different conclusion from the one he states in his report, seems to indicate that the language found in the conveyance to O’Daniel was used for the intent and with the purpose of giving him a continuous right of way from Plain street to the rear of his premises, to wit, for a distance of 132 feet. The referee received evidence from both parties as to the circumstances attending the practical and actual occupation of the land or light of way, and we think, doing so, he kept within the rule of law which permits such evidence to be received where there is ambiguity or uncertainty as to the intention of the parties in using the language to be construed. In Herman v. Roberts, 119 N. Y. 37; 28 St. Rep. 843, it was held by Ruger, C. J., viz.:

“ In considering the extent of the rights of the respective parties in the grant of a right of way, it is not proper to refer to the paroi negotiations which preceded its execution, or the colloquium accompanying it. Bayard v. Malcolm, 1 Johns. 467; Renaud v. Sampson, 12 N. Y. 561; Long v. Railraad Co., 50 N. Y. 76. But we -are to regard the language of the grant, and when there is uncertainty or ambiguous words, the circumstances surrounding it, and the situation of the parties, with a view of arriving at the true intent of the parties.”

We find no occasion to disturb the rulings of the referee, or his report, because he received the facts and circumstances as to the situation of the property at the time the language was used by the parties in creating the easement. As we have before said, there was a great conflict in the evidence; and after a careful review of it, and awarding to the referee's report such influence as we think it should receive, we accept his conclusion upon the facts, and we are of the opinion that his conclusion upon the facts accords with the weight of the evidence. Barnard v. Gantz, 140 N. Y. 249; 55 St. Rep. 541. Nor do we find any occasion to disturb the conclusions of law stated by the referee in his report, which were as follows, viz.:

“(1) That by the deed of September 3, 1868, Anson Braman conveyed to Addison M. O’Daniel, with the western portion of lots 181, an easement appurtenant thereto, for the right of way over a strip of land twelve feet in width, taken off from the north side of lot 182, and extending eastward from the line of the Seymour property, which was sixty-six feet east of Plain street, to a line one hundred and thirty feet east from Plain street, and at the same time granted to said O’Daniel and his assigns the right of way, so far as it was in the power of the owner of the premises now held by the plaintiff to do, over that portion of said lane which extends from Plain street sixty-six feet eastward. (2) That the defendant, as the successor of the title and interests so conveyed to said O’Daniel, did on the 26th day of April, 1892, have the right as against the plaintiff, to use the lane, throughout its entire length, as a means of ingress and egress to bis premises; the right to ojien, by force, if necessary, the gate across the lane at the west line of the plaintiff’s property; and also had the right to remove so much of the fence in front of his barn as was necessary to make convenient access' thereto from the lane."

2. Appellant complains of a ruling made by the referee. When the witness Catherine M. King was being examined, the following question was propounded to her: “Q. Did you have a conversation with Mrs. Braman, now Mrs. Starr, before the premises were sold to Lynch, and after Mr. Braman’s death, in which a lane on the north side of the Braman’s barn was referred to? ” This question was objected to by the plaintiff as leading, incompetent, and improper. The objections were overruled, and an exception was taken, and the answer of the witness was, “ I did,” and then the question was propounded, “State what it was.” Thereupon, plaintiff’s counsel stated that as Mrs. Srarr was at the time of making, the statement only life tenant, and had no right to convey, her evidence could not be received. Plaintiff had theretofore placed Mrs. Starr upon the stand, and examined her atx length, with a view of giving facts and circumstances tending to show that no use of the lane was made beyond a distance of sixty-six feet from Plain street. (Folio 333 et seq.) In the course of her cross-examination she was asked especially as to having had conversation with Mrs. King, and especially as to whether she had stated that “whoever owned the O’Daniel lot had a right to use the lane,” and she answered that she did not state that. Some other questions of a similar character were put to her, Which led to her denials. The referee was therefore warranted in delivering his ruling, which he did in the following language: “The witness may state what Mrs. Starr said, if anything, with regard to the existence of a lane at that point, a.t that time; confining herself to that simple fact, and also to the conversation to which Mrs. Starr’s attention was called.” Immediately after this intimation of the referee the counsel for the defendant stated, viz.: “ The question is asked the witness for the purpose of contradicting Mrs. Starr. * * * The plaintiff took an exception to the ruling, and the witness answered, viz.: “She proposed to sell me the land between my lot and the O’Daniel line for a certain price. I said, if I paid that price for it, I should want to have the land clear through to the O’Daniel line. She said she could not give that, because O’Daniel had a right of way across there. I think I have stated all that she said.” We think no error was committed by the referee, under the circumstances apiaarent to him when he made the ruling. Sloan v. Railroad Co., 45 N. Y. 125; People v. Brockett, 65 St. Rep. 667.

3. Many other rulings were made during the progress of the trial. In some instances, after the particular question was propounded, and the objections thereto sustained, it appears the evidence was subsequently received which the question apjrarently called for. We observe that the referee allowed considerable latitude to either side in developing the evidence that related to the situation of the premises and the acts of the parties in respect thereto. We have observed no ruling that presents prejudicial error, calling for us to interfere with, the result reached by the referee. Numerous exceptions were taken to the referee’s declining to make some more minute findings of fact in response to requests that were made. In several instances the requests related to matters involved in conflicting evidence, and the referee, in declining, committed no error which should lead us to interfere with his refusal. And in some instances the requests were for facts which were immaterial, in the light of the principal findings made by the referee upon the leading features of the case.

4. It is contended in behalf of the appellant that, as some evidence cropped out during the trial which indicated that “ the defendant’s barn being two feet over on plaintiff’s land,” it is therefore apparent that the defendant “is not entitled to cover a portion of the land with his barn; ” and it is insisted in behalf of the plaint-tiff that by so doing he “trespassed upon plaintiff’s rights, and therefore plaintiff is entitled to recover.” If it be assumed that the plaintiff is right in the construction of the evidence to the effect that the barn is over the line to some extent, still we think the plaintiff is not entitled to have us disturb the report of the referee. By turning to the complaint, from which we have already quoted, it will be seen that the gravamen of this action is for an entry on the 26th day of April, 1892, and that it is alleged the defendant tore down “ the gates,” and took down “ the fence standing upon said land of the plaintiff, and removed the same, and injured said premises”; and no other wrongs or trespasses are mentioned in the complaint, and we find no language that would bear us out in construing the complaint as applicable to the circumstance that the barn was, as claimed by the plaintiff, over the line two feet, and therefore a trespass. Nor do we find the question of the plaintiff’s right to recover by reason of the location of the barn made a ground for relief during the progress of the trial.

The foregoing views lead to the conclusion that the report of the referee should be sustained.

Judgment affirmed, with costs.

All concur.


text:
    Vogt Manufacturing and Coach Lace Company, App’lt, v. Carl Oettinger, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Pleading — Demurrer.
    j A demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action should be sustained, if the facts stated in the complaint do not entitle the plaintiff to the relief specifically demanded therein, even though they would have entitled him to some other or different relief had he demanded it.
    2. Replevin — When maintainable.
    Replevin will not lie to recover property which the defendant received in exchange for the property which he wrongfully took from the plaintiff.
    Appeal from an interlocutory judgment, sustaining a demurrer to the second clause of action alleged in the complaint.

      Wile & Groff, for app’lt; George M. Williams, for resp’t.
   Ward, J.

— There were two counts in the plaintiff’s complaint, the first alleged the ownership of the plaintiff in, and that it was entitled to, the possession of a kodak camera and other articles of personal property, of the value of $180, and that it was detained from the plaintiff. The second cause of action alleged that the defendant wrongfully and unlawfully took from the possession of the plaintiff, and carried away, the personal property of the plaintiff, to wit, money in various amounts, aggregating and to the value of $468; that defendant did pay and exchange the money so taken, or some part thereof, for the following described personal property, to wit, (enumerating the specific articles set forth in the first cause of action ; and proceeds:) that the above-described property thereupon became and is the property of the plaintiff, and plaintiff is the owner thereof, and is’entitled to the immediate possession thereofand then alleges the value of said property at $180.95, and the demand thereof of the defendant before the commencement of the action, and his refusal to deliver the same upon such demand to the plaintiff; and concludes: “ Wherefore plaintiff demands judgment against defendant for the recovery of the possession of said goods, or the sum of one hundred and eighty and ninety-five one hundredths dollars, the value thereof, in case a delivery cannot be had, together with the costs of this action.” The defendant demurred to the second cause of action, on the ground that it appeared on the face of the same that it does not state facts sufficient to constitute a cause of action. A cause of action would have been stated in the complaint demurred to for the wrongful conversion of the plaintiff’s money, if an appropriate demand for judgment had accompanied it. The judgment there demanded was for the specific property that was purchassd with the money, or, in case delivery could not be had, of the value thereof. The action, therefore, seems to be in replevin purely for the specific articles enumerated. A demurrer to a complaint upon the ground that it does not state facts sufficient to constitute a cause of action should be sustained, if the facts stated in the complaint do not entitle the plaintiff to the relief specifically demanded therein, even though they would have entitled him to some other or different relief had he demanded it. Edson v. Girvan, 29 Hun, 422; Swart v. Boughton, 35 id. 281, and cases there cited.

The remaining question is whether replevin can be maintained upon the facts alleged in the pleading demurred to. The theory of the plaintiff is that the defendant acquired no rights in the substituted property, and is not permitted to assert any, and that the plaintiff is entitled in a court of law to pursue the substituted property with the same proceedings and remedies that he would have as to the property taken from it; and to sustain this position the plaintiff cites Silsbury v. McCoon, 3 N. Y. 379, and cases there cited ; Van Alen v. Bank, 52 N. Y. 1; Baker v. Bank, 100 id. 31. The first case cited was where corn had been converted into whisky, and kindred cases are there referred to where logs have been converted into lumber or shingles, leather into boots or shoes, gold into cups, etc., and asserting the proposition that the common law recognizes the same rule as the civil law in such cases, — that, where the rights of innocent persons did not intervene, any value or accretion added to the original property wrongfully taken from the owner belongs to the original owner, although by the change in the propert)r affected by the wrongdoer it could no longer be identified, but evidence was required, from the changes affected by the wrongdoer, to trace it back to the original property. This was an action of trover to recover the whisky. In Van Alen v. Bank, an agent had deposited money of his principal to his own account, and the principal brought an action to recover the money. The principal recovered, and the court say, at page 4, “ that so long as money or property belonging to the principal, or the proceeds thereof, may be traced or distinguished in the hands of the agent or his representative or assignees, the principal is entitled to recover it, unless it had been transferred.for value without notice.” This money was realized by the agent by the sale of certain bonds of the plaintiff, although the identical money received for the bonds was not deposited, but money that was substituted for it. The plaintiff recovered a judgment for the money, the bank having refused, upon a presental tian of the agent’s check, to pay the money. The case of Baker v. Bank, supra, was. a similar case to the one last cited. It wilbe observed that in these cases the property taken by the wrongdoer, or the direct proceeds of that property, was recovered, though the identity of the property taken was lost by the act of the wrongdoer, and evidence was necessary to trace it back to the original condition. If the plaintiff recovers in the case before us, if must be upon the theory that the plaintiff adopts the acts of the defendant in using the stolen money to purchase the property sought to be replevied, and thus obtains title, as it were, by ratification. This may be permitted in an equitable action, but not in an action at law, where the action is based upon the wrongful taking or detention of the personal property of the plaintiff. The county court had no equitable power in this regard, even if this may be treated as an equitable action, to reach the proceeds of the plaintiff’s property in the hands of the defendant. The interlocutory judgment sustaining the demurrer should be affirmed, with costs, with leave to the plaintiff to amend the complaint within twenty days upon payment of the costs of the demurrer and of this appeal. All concur.


author: Lewis, J.

text:
    Vogt Manufacturing and Coach Lace Company, Resp’t, v. Carl Oettinger, App’lt.
    ( Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Costs — Demurrer—Amount.
    Where the court determines that the successful party upon the trial of a demurrer, is entitled to costs, he is entitled to statutory costs, and the court cannot fix any different amount.
    Appeal from an order, denying a motion to modify and correct the decision^of the court.

      George Williams, for app’lt; Frank M. Goff, for resp’t.
   Lewis, J.

— There was a joiner of an issue of law and an issue of fact in this action, between the same parties. The issue of law was tried and decided while the issue of fact was still undisposed of. Whether the successful party should have costs of the demurrer was a matter in the discretion of the court. Code Civ. Proc. § 3232. The trial court exercised its discretion in favor of the party demurring and decided that he was entitled to costs. The decision was as follows: “Demurrer sustained, and said second cause of action in plaintiff’s complaint dismissed, with ten dollars costs against plaintiff.” The defendant moved the court to correct its decision by striking out the words “ ten dollars.” The motion was denied. The court having determined that the defendant was entitled to costs, he was, we think, entitled to the statutory costs. We do not see upon what theory the court could arbitrarily fix any different amount. It is provided by section 3251 of the Code that costs awarded, to a party to an action must be at the following rates : “For the trial of an issue of law twenty dollars, etc. Van Gelder v. Van Gelder, 13 Hun, 118.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion for the modification of the decision granted. All concur.


author: Martin, J.

text:
    Norris Winslow, as Trustee, etc., Pl'ff, v. Carthage, Watertown and Sacket’s Harbor Railroad Company, App’lt. Addison L. Upham, County Treasurer, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    County treasurer — Fees.
    A county treasurer, to whom a trust mortgage, debt was paid as a tender in an action to foreclose such mortgage, should not ask for an adjustment of his fees as county treasurer in the receiving and paying out such money before a formal order to pay it out has been made.
    Appeal from an order, directing the payment of certain commissions to the county treasurer.
    The order appealed from is as follows :
    “ A motion having been made in behalf of Addison L. Upham, treasurer of Jefferson county, based on his affidavit, dated March 14, 1894, and upon the orders, judgments, and appeals in the above-entitled action, duly entered and filed in the office of the clerk of Jefferson county, M. jY.; and on the testimony of Addison L. Upham, Smith T. Wool worth, and Daniel G. Griffin, taken upon the hearing of said motion by the mutual stipulation of the attorneys for the respective parties, and on proof of service of said notice of motion and affidavit on the Carthage, Watertown and Sacket’s Harbor Railroad Company and Morris Winslow, as trustee of the first mortgage of the Carthage, Watertown and Sacket’s Harbor Railroad Company, the plaintiff in this action, and proof of service of said notice of motion on George H. Sherman and Roswell P. Flower, as trustees and defendants in said action ; and on the affidavit of Daniei G. Griffin ; andón the demand made by the plaintiff in the action on the said Addison L. Upham, as county treasurer, on the hearingof this motion, for payment of the fund involved in the motion, with interest thereon to him, the plaintiff, as such trustee; and after hearing Hannibal Smith, of counsel for Addison L. ITpham, treasurer of Jefferson county, and Daniel G\ Griffin, of counsel for Norris Winslow, the plaintiff in the action, in opporition — it is
    “Ordered: That the fees of Addison L. Upham, treasurer of Jefferson county, for receiving and paying $160,200, placed in his hands, be, andaré hereby, established at five hundred dollars; and that the said Carthage, Watertown and Sacket’s Harbor Eailroad Company be, and hereby is, ordered to pay to said Addison D. Upham or his attorneys the sum of five hundred dollars for such fees upon the service of a certified copy of this order on the said defendant the Carthage, Watertown and Sacket’s Harbor Eailroad Company.
    “It is further ordered, that said Addison L. Upham, as treasurer of Jefferson county, be, and he is hereby, directed to refuse the demand of the plaintiff, Norris Winslow, as trustee, hereinbefore recited, and that said Upham deliver over the bonds of the Carthage, Watertown and Sacket’s Harbor Eailroad Company in his hands to the said Carthage, Watertown and Sacket’s Harbor Eailroad Company on its payment of his fees as hereinbefore provided ; and that the said Addison L. Upham, treasurer of Jefferson county, shall be discharged from all further liability in relation to the said fund.
    “It is further ordered, that the Carthage, Watertown and Sacket’s Harbor Eailroad Company pay to the attorneys for the said Addison L. Upham the sum of $2.67 disbursements incurred by the said Addison L. Upham on account of this motion.”

      D. G. Griffin, for app’lt; Hannibal Smith, for resp’t.
   Martin, J.

— Upon a former appeal from this order by the plaintiff, Norris Winslow, as trustee, this court modified it by striking out the second paragraph, beginning with the words, “It is further ordered,” and ending with the words, “shall be discharged from all further liability in relation to the said fund," thus leaving the order, as modified, so that it directed the present appellant, the railroad company, to pay to the respondent $500 for his fees, and $2.67 for his disbursements, with that portion of the order which required the respondent upon this appeal to deliver to the appellant herein its bonds to the amount of $160.000, which were in his hands, upon payment of such fees, stricken out, at least so far as the plaintiff, the then appellant, was concerned. The whole order was not reversed upon the former appeal for the sole reason that the Carthage, Watertown & Sacket’s Harbor Eailroad Company had not appealed, and it was, therefore, assumed that it was satisfied with it. Upon tins appeal the question is presented whether the whole order should or not be reversed. Although it is difficult to discover any principle upon which the special term could properly require the appellant to pay the respondent $500 for his fees, yet, without discussing that question, and independent of it, - we are of the opinion that the whole order should be reversed, so as to-avoid any complications that may arise by reason of the reversal of a portion of the order and leaving the rest undisturbed ; as, under such circumstances, it may perhaps be claimed with some show of reason that the respondent is entitled to recover his fees and disbursements without complying with that portion of the order which required him, upon the payment of his-fees, to deliver the bonds in his hands to the railroad company. It is manifest from the opinion of this court delivered upon the former appeal that, if the present appellant had then appealed from the whole order, it would have been reversed. As it is now appealed from, in view of our former decision, we think it should, be reversed, thus leaving the whole matter open to future action by the court below, thereby avoiding the complications suggested. But, as the appellant did not join in the former appeal, we think' no costs should be allowed.

Order reversed, without costs to either party.

Hardin, P. J., concurs; Merwin, J. concurs in result.


author: Hardin, P. J. Martin, J. Merwin, J.

text:
    The People ex rel. James McLoughlin, App’lt, v. Sylvester Wilson, as Sheriff, etc., et al. Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Habeas coepüs — ErNAL judgment.
    Where it appears that the prisoner is in custody by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, the habeas corpus proceeding should be dismissed and the prisoner remanded.
    Appeal from an order, dischargitig the relator from custody.
    On the 28th day of November, 1894, the county judge of Herkimer county granted on order discharging the relator, James Mc-Loughlin, from custody, which order contained the following lan-. guage: “Ordered, that said James McLoughlin be, and he hereby is, discharged from the custody of said Sylvester Wilson, as such-sheriff, and from further imprisonment under and by virtue of said execution against the person, by which he was held and restrained by said sheriff.” The order was filed and entered in the Herkimer county clerk’s office December 12, 1894. The relator applied to the county judge on a petition dated November 27th, and verified on that day. The sheriff made a return to the writ of habeas corpus allowed by the county judge on the petition, in which return the sheriff stated that on the 27th day of November, 1894, and before said writ came to him, James McLoughlin was in his custody, and detained by him in’ the county jail of Herkimer county, under and by virtue of a commitment, a copy of which-Was returned: “Issued by H. 0. Brown, Esq., police justice of the village of Little Falls, in said county, that the said James Mc-Loughlin is still in my custody under said commitment." Notice-of the issuance of the habeas corpus was given to Mary Haley. Annexed to the return was the execution given by the police justice-upon a judgment rendered on the 31st of October, 1894, for the-sum of $40 damages, and $1190 costs. The execution contained' the following recital: “And whereas, this action was brought to recover damages to house and premises occupied by the defendant, and an order of arrest was granted and duly executed herein, and not vacated.” The execution then proceeded to state in the usual form that the constable was required to satisfy the same out of the property of the defendant McLoughlin, and then it contained the following clause:
    “And you are also commanded, if sufficient personal property cannot be found to satisfy the judgment, to arrest the said James McLoughlin, and convey him to jail of the said county, there to remain until he pays the judgment or is discharged according to-law; and do you return this execution within sixty days from the date hereof.
    “ Dated Nov. 20th, 1894.
    “(Signed) H. C. Brown, Police Justice.”
    Upon the return of the writ, the relator traversed the return by-stating: First, that said police justice, H. C. Brown, Esq., had no authority and jurisdiction to issue said mandate or said execution against the person of this relator; and, second, the said execution issued by the police justice was “ upon a judgment on contract, and not in tort, nor in any manner sounding in tort, nor for a penalty. That the complaint filed with the plaintiff in the-action before the said police justice or in his court, in which said judgment was rendered, and the evidence given before said police justice, neither alleged, nor established, nor tended to establish, any wrong or tort. * * * And your relator further alleges that no order of arrest or any other process except a summons was issued or served therein, except the ordinary summons to commence the action.” In the complaint filed in the justice’s court in the suit of Mary Haley against James McLoughlin it was-averred: “That on or about the 1st of March, 1891, plaintiff, rented-her said premises to defendant, and defendant occupied said premises of plaintiff for about three years, and during such occupancy of defendant he damaged the said premises and house of this plaintiff to the amount of $40, of which amount he never paid any part, nor repaired none of such damage, and is now owing this plaintiff therefor the sum of $40.” It appears by the minutes taken before the county judge upon the hearing before him that the papers already referred to were presented, “and no other evidence was given,” and that, after hearing counsel for the parties, he made the order which is the subject of this appeal.

      C. J. Palmer, for app’lt; J. D. Beckwith, for resp’t.
   Hardin, P. J.

— Section 2015 of the Code contains a general provision for the allowance of a writ of habeas corpus to be made, “ except in one of the cases specified in the next section.” The-next section, to wit, section 2016, prescribes expressly as follows: “A person is not entitled to either of the writs specified in the last section, in either of the following cases: * * * (2) Where he has been committed, or is detained, by virtue of the final judgmeat or decree, of a competent tribunal of civil or criminal jurisdiction. * * *"

Section 2032 of the Code provides as follows:

“The court or judge must forthwith make a final order to Temand the prisoner, if it appears that he is detained in custody for either of the following causés, and that the time for which he may legally be so detained has not expired: * * * (2) By virtue of the final judgment or decree of a competent tribunal of •civil or criminal jurisdiction. * * * ”

Chapter 602 of the Laws of 1886 conferred upon the police justice of Little Falls “ all the jurisdiction, power, and authority * * * in all respects as are or may by law be vested in or required from justices of the peace of the town of Little Falls." In People ex rel. Danziger v. Protestant Episcopal House of Mercy, 128 N. Y. 185; 40 St. Rep. 147, Ruger, C. J., says :

“ The Code of Civil Procedure provides that when it appears, among other things, that the prisoner is detained in custody ‘ by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction,’ and the time for which he is required to be retained has not expired, the court must remand him. Section 2032. Section 2034 of the same Code enacts that the court or judge is prohibited in such case, on a return to the writ, from inquiring into the legality of a mandate, judgment, decree, or final order.”

In a later part of the opinion, the learned chief judge says: “We are of the opinion that the order of the judge was erroneous, and that, it having been established by the conceded facts that the prisoner was held under the final judgment of a competent tribunal of criminal jurisdiction under the express provisions of the Code, she should have been remanded.”

Nothing appeared before the county judge to indicate that Brown, the police justice, did nqt have jurisdiction of the parties, and especially of the defendant, in the suit before him; nor did •anything appear to indicate that the police justice did not have jurisdiction of the subject-matter.

In article 3, title 2, chap. 19, of the Code, authority is given to a justice to grant an order of arrest of the defendant. In the second subdivision of section 2895 of the Code, it is provided that -an order of arrest shall not be granted except where -the action is brought “to recover damages for a personal injury, of which a justice of the peace has jurisdiction; an injury-to property, including the wrongful taking, detention, or conversion of .personal property.”

In People ex rel. Lotz v. Norton, 76 Hun, 7; 58 St. Rep. 736, it was said to be irregular to go into proof before a county judge to a return of habeas corpus, except to traverse the return, and that: “ It is a general rule that a habeas corpus cannot be used to review trials before magistrates. If it appears that the magistrate had jurisdiction of the person and the subject-matter, and the mittimus shows upon its face these two facts, the writ will be dismissed.”

In Re Donohue, 1 Abb. N. C. 10, it was said:

“It is safe and better, when a judgment has been rendered, which an express statute authorizes, to leave its review to the regular and more deliberate process of the higher courts than to make of every court and officer authorized to issue this writ a tribunal summarily to decide such grave and momentus questions. People v. Fancher, 2 Hun, 226.”

We are inclined to the opinion that it was the duty of the county judge, by virtue of section 2032 of the Code, to make an order to remand the prisoner, as it appeared that he was detained in custody “by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction,” and that it is not necessary upon this appeal to consider the questions urged by the learned counsel for the respondent as to the nature and character of the complaint filed in the justice’s court. In respect to that, however, it may be suggested that great liberality is allowed in justice’s courts, and that the cases cited by him — Goodwin v. Griffis, 88 N. Y. 631, and Wood v. Henry, 40 id. 124, and Austin v. Sawdon, 44 id. 63 — differ from the case in hand.

The foregoing views lead to the conclusion that an order should be made in this case similar to the one pronounced in People ex rel. Danziger v. Protestant Episcopal House of Mercy, supra.

Order reversed, and the defendant remanded to the custody of the sheriff of Herkimer county.

Martin, J.

— I am of the opinion that the action was for injury to property, and an execution against the person was authorized. I, therefore, concur in the result.

Merwin, J.

— I think it was a case for a body execution, and that the order should be reversed.