author: Talcott, P. J. :

text:
    AARON McCONNELL, Respondent, v. FRANKLIN D. SHERWOOD, as Sheriff of Steuben County, Appellant.

      General assignment — construction of— a power given to the assignee to compromise with creditors invalidates it — a power to compromise with debtors also invalidates it — when the assignee is estopped from claiming that goods, seized, i wnder execution against his assignor, belonged to him individually.

    A debtor made a general assignment by which he directed the assignee to sell the property, and after paying the costs and charges and expenses of executing the trust “ to distribute and pay the remainder of the said proceeds to all the creditors of said party of the first part, for all debts and liabilities which the said party of the first part may be owing or indebted to any person whatever ”; if the proceeds were insufficient to pay the debts in full then they were to be X>aid pro rata.

      Hold, that the assignment only authorized the payment of those debts which were existing at the time of its execution, and not such as the assignor might subsequently contract.
    The assignment further provided, “that the party of the second part may have the right to compromise with the creditors of the party of the first part for all his debts and liabilities which the party of the first part may be owing- or indebted to any person if, in the opinion of the second party, it would be advantageous to the party of the first part and to the creditors of the party of the first part.”

      Held, that the power given to the assignee to compromise with the creditors of thé assignor rendered the assignment void.

      Semble, that a provision in the assignment authorizing the assignee to collect the debts and accounts, taking a part for the whole, when he should deem it expedient so to do, rendered the assignment void.
    The assignee after taking possession under the assignment of the goods, consisting of the stock of a country merchant, purchased individually a chest of tea and a small quantity of sugar and kerosene, to aid in selling the remainder of the stock. The defendant, the sheriff, levied under executions against the assignor upon the stock in the hands of the assignee, claiming the assignment to be void. At the time of the levy the assignee claimed that the chest of tea belonged to him individually, and the same was not seized. Neither at the time of the levy nor at that of the sale did the assignee ever claim that the sugar or kerosene belonged to him otherwise than as assignee.

      Held, that the assignee was estopped from claiming, in an action brought against the sheriff to recover the proceeds of the goods sold by him, that the sugar and kerosene belonged to him individually and not as assignee.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Steuben Circuit, and from an order denying a motion for a now trial made upon the judge’s minutes. The action was brought to recover the value of certain personal property alleged to have been converted by the defendant.

      J. F. Parlchursl, for the appellant.
    The provision in the assignment by Yan Housen to the plaintiff, giving the right to the assignee to compromise with the creditors, when he shall deem it advantageous to the assignor and the creditors, renders this assignment void on its face. First: Because it gives the assignee the right to give preferences. ( Wakeman v. Grover, 4 Paige, 441; Grover v. Wakeman, 11 Wend., 203 ; Burrill on Assignments [3d ed.], 310; Bump on Fraudulent Conveyances [2d ed.], 419 ; Bishop on Insolvent Debtors, 193 ; Hudson v. Maze, 4 111., 578 ; Smith v. Leavitts, 10 Ala., 92 ; Worles v. Filis, 50 Barb., 512 ; Keevil v. Donaldson, 20 Kan., 165 ; Bennett v. Fllison, 1 Am. Ins. Rep.; 26 id. [23 Minn.], 242; Whitney v. Kelley, 67 Me., 377 ; Smith v. Hurst, 10 Piare, 30 ; Boardman v. Halliday, 10 Paige, 227 ; Barnumy. Hempstead, 7 Paige, 568.) When the authority to do the illegal act appears upon the face of the instrument, it is conclusive evidence of the fraudulent intent, and the court must hold the instrument void as a matter of law. {Sheldon v. Dodge, 4 Denio, 218 ; Nichols v. McFiven, 17 N. Y., 22; Goodrich v. Downs, 6 Hill, 438; Southard v. Benner et al., 72 N. Y., 431; OavanaugliY. Beckwith, 44 Barb. 192 ; Benedict v. Hunting-' ton, 32N. Y., 223; Nicholson v. Leavitt, 2 Seld., 520 ; Barney v. Griffin, 2 Corns., 365 ; Fdgell v. Hart, 9 N. Y., 219 ; Mittnacht v. Kelley, 3 Keyes, 407; Goodrich v. Downs, 6 Hill, 438.) Second : It is contrary to the policy of the assignment law, that the assignee should be made the agent of the assignor for buying releases from the creditors for the assignor. (2 Edmonds Stat., p. 140, § 1; Willson v. Robertson, 21 N. Y., 587 ; Durham v. Whitehead, id., 133 ; Whitney v. Kelley, 67 Me., 379 ; WylesY. Beals, 1 Gray, 233; id., 239; Holdridge v. Gillespie, 2-Johns. Ch., 30; Ackerman v. Fmmott, 4 Barb., 626; Chapin v. Weed, Clarke, 464 ; Hawley v. Cramer, 4 Cow., 717 ; Gould v. Gould, 36 Barb., 270 ; Colburn v. Marion, 1 Abb. Ct. App. Dec., 378 ; Monroe v. Alaire, 2 Cai., 320 ; Quackenbush v. Leonard, 9 Paige, 334; 3 Atk., 37; 3 P. Wms., 249; 1 Salk., 155.) Third: The power to compromise vitiates the assignment, because it authorizes the assignee to delay the distribution of the estate, in defiance of the court and for the benefit of the assignor. (McCleerryv. Allen, 7 Neb., 21 ; Nicholson v. Leavitt, 2 Seld., 520 ; Bennett v. Bllison, supra; Works v. Ellis, 50 Barb., 512 ; Boardmanv. Halliday, 10 Paige, 223; Goodrich v. Downs, 6 Hill, 438 ; Barney v. Griffin, 2 Corns., 365 ; Benedict v. Huntington, 32 N. Y., 223.) The assignment is also void because of the provisions authorizing the assignee, in collecting the notes and accounts, to take “ a part for the whole when he shall deem it expedient.” Under it the assignee, whenever he deems it “ expedient,” may accept a part for the whole of any note or sum, whether good or bad, without permission of the county judge or application to him, and without showing any “good and sufficient cause,” and by this provision the assignee is exonerated from all liability therefor if he acts in good faith. (Litchfield v. White, 7 N. Y., 438; Burrill on Assignments, 14 ; Hutchinson v. Lord, 1 Wis., 286;'Bum]; on Fraudulent Conveyances, 414 ; Olmstead v. Herrick, 1 E. D. Smith, 310; Metcalf v. Van Brunt, 37 Barb., 621; Woodburn v. Mosher, 9 Barb., 255 ; Dow v. Plainer, 16 N. Y„ 562.) The plaintiff is estopped from now asserting his individual ownership, because he voluntarily mixed his owir with the assigned property, and purposely concealed the fact from the sheriff, for the purpose of leading the sheriff to believe that the property all belonged to the Van Houston estate. (Hart v. Ten Eyck, 2 Johns. Ch., 108; Lupton v. White, 15 Vescy, 432; Dezell v. Odell, 3 Hill, 215; Young v. Bushnell, 8 Bosworth, 1; Plumb v. The Cattaraugus County Mut. Lns. Co., 18 N. Y., 394; Welland Canal Co. v. Hathaway, 8 Wend., 483; Smith v. Hill, 22 Barb., 656.)

      Win. Humsey, for the respondent.
   Talcott, P. J. :

This is an action brought against the sheriff of Steuben county, for the seizing and conversion of certain personal property, constituting a stock of goods with which one Ward B. Van Housen had been carrying on business as a merchant at Howard, in said county.

On the twenty-seventh day of November the said Van Housen, being pressed by his creditors, made and executed an assignment to the plaintiff of all his goods and effects, for the benefit of all his creditors pro rata, and the plaintiff accepted the said assignment, and gave the necessary security under the statute, and assumed to go on and sell and dispose of the said goods and merchandise by virtue of the said assignment; and while he was so engaged the defendant, as sheriff of the county, and by virtue of several executions to him issued and delivered, levied upon so much of the said stock as remained unsold, and thereafter proceeded to sell so much thereof as was necessary to realize the amount of the said executions. The assignment to the plaintiff was upon the following trusts and conditions :

“ First. To pay the costs and charges of these presents, and the expenses of executing the trust declared and set forth herein.

“To distribute and pay the remainder of said proceeds tc all the creditors of the said party of the first part, for all debts and liabilities which the said party of the first part may be owing or indebted to any person whatever ; provided, however, that if there is not sufficient funds for the payment of all the debts,of the said party of the first part, then the said debts are to be paid pro rata, or in proportion to their respective demands.

“ Third. That the party of the second part may have the right to compromise with the creditors of the party of the first part for all his debts and liabilities, which the party of the first part may be owing or indebted to any person, if, in the opinion of the second party, it would be advantageous to the party of the first part and the creditors of the party of the first part. The rest, residue and remainder, if any there be, after paying said* costs, charges, expenses and debts, as aforesaid, the said party of the second part is to pay over to the said party of the first part, his executors, administrators or assigns.”

Sundry objections are made to the validity of this assignment.

It is urged that the assignment is void because it does not confine the distribution of the amount realized from the assigned property to the payment of such debts and claims as existed against the assignor at the time of the assignment, but authorizes the payment of debts which might be afterwards contracted by the assignor. If this be the true construction of the assignment, it would undoubtedly be void for that reason. But it is doubtful whether this can be the true meaning and construction of the instrument.

The doctrine applied to these assignments, like other instruments and conveyances, is that if two constructions are possible, one of which renders the instrument void, and the other renders it valid, that construction is to be adopted which makes it consistent with law, ut res magis valeat quam jpereat, and we think it reasonable to construe this assignment as relating to the present tense, and to the debts and liabilities of the assignor which existed or had been incurred at or before the making of the assignment. (Brainerd v. Dunning, 30 N. Y., 211; Townsend v. Stearns, 32 id., 209, 214.)

The clause, however, by which the assignee is authorized to compound with the creditors of the assignor for any sums for which he may be indebted to any person, seems to fall within the condemnation of -the adjudged cases, especially the leading case of Wakeman v. Grover, 4 Paige, 23 ; and Grover v. Wakeman, 11 Wend., 187. (See also Boardman v. Halliday, 10 Paige, 227; Dunham v. Waterman, 17 N. Y., 9.)

If, as a matter of fact, it appears that the intent of the assignor in making the assignment was to enable him to make a compromise with his creditors, the assignment is fraudulent and void, though the terms of the instrument do not expressly empower the assignee to make compromises, and where the authority to do the act is conferred ip express terms by the assignment itself, it must be equally void. (Work v. Ellis, 50 Barb., 512; Bennett v. Ellison, 23 Minn., 242.) It has a tendency to coerce the creditors to accept less than the full amount of their debts, and to release the debtor. The assignee in this assignment is given the right to use this power, if, in his opinion, it would promote the interests of the assignor and his creditors; and the assignee is not permitted to show that he did not intend to avail himself of this power, or use this discretion. (Barney v. Griffin, 2 Comst., 365; Goodrich v. Downs, 6 Hill, 438.) True, a debtor, while he remains in the possession and control of his property, may compromise with any or all of his creditors. But when he makes an assigumont of all his property, he has put his property out of his hands and possession so as to be screened from the process of the law, by which collection can be enforced, and being beyond the reach of legal process, he may the more easily operate upon the fears of his creditors, and induce compromises by them which they might not submit to, if his property were in li:s own possession, and open to the action of legal process. “ The only ground upon which the validity of voluntary assignments can rest is, that they contemplate nothing but a distribution of the debtor’s property to his creditors in some way,” as was said by Senator Tracy in Grover v. Wakeman, supra. “ The only safe rule is to regard every assignment which operates to delay creditors for any purpose whatever not distinctly calculated to promote their interest, as contrary to the policy of the statute of frauds.” We are, therefore, of the opinion that the assignment in this instance was void upon its face, as calculated to hinder, delay and defraud the creditors of the assignor.

We think also that the assignment in this instance was probably void by reason of a provision contained in it, and not before quoted, viz. : that part of the assignment which, in authorizing the assignee to collect the debts and accounts due to the assignor,, empowers him “ when the party of the second part shall deem it expedient so to do,” to take a part of the -whole debt, in other words, conferring upon the assignee the power to compound for the debts due to the assignor, if he, the assignee, shall deem it expedient.

Though an assignee may exercise such a discretion in a proper case, still, on the settlement of his accounts, his action in that respect is open to the examination of the creditors and of the court, and may by them be challenged for negligence, improvidence or interested motives; whereas, by this assignment, it seems to have been intended that the “ discretion ” of the assignee shall solely determine the question, whether he will accept a pai’t instead of the whole of a debt due to the assignor, and to substitute such discretion as the final and sole arbiter in the premises in place of the rules of law, and the opinions of the courts. (Townsend v. Stearns, 32 N. Y., 215, 216.)

It seems that the plaintiff as he claims, with a view of aiding the sale of the balance of the stock, had purchased a small quantity of sugar, some kerosene, and a chest of tea, -which he had added to the stock, and which at the time of the levy was mingled with the residue of the stock and was being sold by Van Housen and the plaintiff indiscriminately as part of the assigned stock. The sherff was ignorant of the fact that the plaintiff had made those purchases, and of the fact that any portion of the stock belonged to the plaintiff individually.

At the time of the levy the plaintiff did not claim any title to any part of the property, except the chest of tea, which he stated to the sheriff belonged to him individually, saying, “ you have got a chest of tea here which belongs to me individually, I suppose you have no objection to my taking it?” and by the sheriff's consent he took the chest of tea, making no claim tr any other property except as assignee. The plaintiff also, before the sale, demanded the property levied on as assignee, saying, ‘*1 came to make a demand of you as assignee of those goods.” And the sheriff having no knowledge or intimation of any claim, on the part of the plaintiff, that any part of the goods seized was claimed by the plaintiff, except as assignee of Van Housen, under the said assignment went on and sold the stock, including the said sugar and kerosene as the property of Van Housen. The sale was duly advertised, the plaintiff attended the sale, and was present at the sale most of the time. Pie forbid the sale on the executions expressly in his character of the assignee of Van Housen, not claiming or pretending to any other title to any of the property sold, nor but that the whole of the goods sold were portions of the goods assigned to him under the assignment; under these circumstances it would be manifestly inequitable and unjust now to allow the plaintiff, as against the sheriff, to set up that he owned individually a small portion of the goods levied on by the sheriff and assumed to be a part of those assigned by Van Housen. By his silence on the subject the sheriff was misled and induced to believe- that all the property levied, on and sold except the chest of .tea was properly embraced in Van Housen's assignment. “A- man who will be silent when his conscience commands him to speak shall not be permitted to speak when his conscience commands him to be silent.”

We think the plaintiff- is estopped from claiming as against the sheriff, that' he had any title to the sugar and kerosene, which he claims to have purchased with his own money and to belong to him individually and not as assignee. (Thompson v. Blanchard, 4 Comst., 303; Dezell v. Odell, 3 Hill, 215; Everett v. Saltus, 15 Wend., 474; Saltus v. Everett, 20 id., 268 ; Dows v. Morewood, 10 Barb., 183; Smith v. Hill, 22 id., 656; People ex rel. Knapp v. Reeder, 25 N. Y., 302; Roth v. Wells, 29 id., 471.) It is not necessary to an equitable estoppel that the-party should design to mislead. If bis act was calculated to mislead and actually has misled another who acted upon it in good faith, and in the exercise of reasonable care and diligence under all the circumstances, that is enough. (Manf. and Traders B’k v. Hazard, 30 N. Y., 226; Roth v. Wells [supra], 29 id., 486.)

We think, therefore, that the plaintiff was not entitled to recover for the sugar and kerosene claimed to have been added to the stock after the assignment. And the assignment being-in our jndgment void in law upon its face, the judgment and order denying a new trial must be reversed.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    ELIZABETH JORDAN, Appellant, v. JOHN C. VAN EPPS, Respondent.

      Judgment and sale in partition —bars inchoate right of dowei' — failure to pro- . vide in the judgment for ascertain inc/ the value of the dower interest does not render the judgment void — rig!, i of a purchaser unde)' the judgment.

    A judgment in partition, and a sitie thereunder, bars the inchoate right of dower of ilia wife of any owner, if she be made a party to the action.
    Although the omission to provide in the judgment for ascertaining the value of the inchoate right of dower of one entitled thereto is erroneous, yet it can only be corrected on appeal; the omission does not avoid the judgment, and a purchaser at a sale thereunder acquires a good title to the premises, free from all claim of dower therein.

      ArPEAL from a judgment of the Monroe County Court in favor of the defendant, and from an order denying a motion for a new-trial made upon the minutes of the judge.

      Daniel Wood, for the appellant.
    The judgment roll in the partition suit offered hi evidence by defendant should have been ruled out as irrelevant, incompetent and immaterial, upon the objection thereto made by plaintiff’s counsel, and as being no defence to this action. The decision of a motion by the court is never res adjudícala. (John Labor v. Deming, 56 Iiow., 209; Smithy. Spalding, 6 Robertson, 615; Belmont v. Erie R. R. Co., 52 Bar., 637; see also Easton v. Pickers gill, 8 N. Y. Weakly Dig., 37, Court of Appeals.) The judgment in the partition suit only affected or concluded the heirs and creditors of George W. Jordan, who wore made parties, and touched no lien or dower interest prior to the title of George W. Jordan. (See Jackson v. Fdioards, 7 Paige, 386; see also 2 R. S. [3d ed.], 417, latter clause of sub. 1 of § 36, § 37; Blakely v. Galder, 15 N. Y., 617, particularly on pages 624, 625 and 626; 6 N. Y., 82; 9 ich, 502.) An action for partition is an equity suit; in such action conflicting claims cannot be tried, especially “ when the title to dower is in controversy; it must be settled at law.” (4 Kent [7th ed.], 381; Badgely v. Bruce, 4 Paige, 98; Jenkins v. Van Schaack, 3 ich, 242; Burhans v. Burhans, 2 Barb. Chy., 398; Ilosford v. Memoin, 5 Bar., 51; Florence v. Hopkins, 46 N. Y., 182; ODougherly v. Aldrich, 5 Denio, 385.) Dower may also be admeasured notwithstanding a partition suit has been brought and the widow made a party. (In the Matter of Sipperly, 44 Bar., 370; see also Votings v. Garter, 10 Hun, 194; Van Schuyver v. Mulford, 59 N. Y., 426.)

      Fanning & Williams, for the respondent.
    The partition suit is a bar to this action. The plaintiff’s right of dower in the premises was directly adjudicated in that action, and denied. It was in issue and passed upon. Van Epps being a purchaser under that decree can avail himself thereof. (Brevoort v. Brevoort el al., 70 N. Y., 140; Howell v. Mill, 56 ich, 226; Gastle et al. v. Hoyes, 14 id., 329; Gasoni et al. v. Jerome, 58 ich, 316-321; 2 Best on Evidence [Wood’s notes, 1064], 739, marginal notes ; Ereeman. on Judgments, § 304; Herman on Estoppel, § 92, p. 98; 1 Scribner on Dower, 331; Tannery. Niles, 1 Barb., 561; Jackson v. Edwards, 7 Paige, 387; S. G., 22 Wend., 517; Meady. Mitchell, 17 N. Y., 210-217; Wright y. Dunning, 46 III., 271; Clemens v. Clemens, 37 N. Y., 72; Bloméry. Sturges, 58 id., 176; Blakeley v. Oalder, 15 id., 617; Whittemore y.Shaw, 8 N. II. R., 393; Embury v. Conner, 3 Com., 511; Peniz v. Kuester, 41 Mo. R., 447-450; 5 Wait’s Sup. Ct. Pr., 116, 182; Moore v. Mayor, 8 N. Y., 110; Ehle v. Bingham, 7 Barb., 494.) Even if there was no finding as to her dower, she was a party and is bound by the judgment. (Jenkins v. Fahey, Ct. App. Api., 16, ’78; 18 Alb. L. Jour., 157; /S'. C., 7 N. Y. Wkly. D., 148.) Even if there were any irregularity in the partition suit it did not affect Van Epps’ title. A purchaser on a partition, under an order of the court, is entitled to be protected even against errors. So hold, and that the reversal of the order of sale would not affect or disturb him. (Dorsey v. Thompson, 37 Md., 26-45; Secombe y. B. B,, 23 Wal. [U. S.] R., 109-118, cited in divorce caseN. Y. Ct. App., 6 N. Y. Wkly. D., 313; Woods v. Lee, 21 Louisiana Annual R., 505 [Probate sale] ; McCahill v. Equitable Co., 26 N. J. Equity, 531-536 [purchaser would not be let off for irregularity]; Carter y. Nichols, 42 N. Y., 26; Winston v. Haynes, 49 Miss., 263; Gerard’s Abstract of Titles, 622; Spaulding y. Baldwin, 31 Iud., 376; Clowes v. Vanderheyden, 17 Johns. R., 167; Lawrence v. Hunt, 10 Wend., 81; Kingsland v. Spaulding, 3 Barb. Ch. R., 243; Birhhead y. Brown, 5 Sandf. Superior Ct. R., 135; 1 Greenleaf on Ev., § 189.) Moreover, the orders made on motions for confirmation of referee’s report in partition, and to open the partition sale and for resale, are res adjudicata. (Whittlesyy. Frantz, 7 N. Y. Wkly. Dig., 403; Dwight v. St. John, 25 id., 203-205.)
   Talcott, P. J. :

This is an appeal from the judgment of the County Coui’t of Monroe county for the defendant, on the verdict of a jury, and from an order denying a new trial in the case.

The action is ejectment for dower. The plaintiff' having proved the seizin of her late husband, the possession of the defendant, and her demand of dower in the premises, rested, whereupon the defendant introduced and proved two judgment records in the Supreme Court of this State.

1. A judgment in an action for a divorce, instituted by Christopher Jordan, the late husband of the plaintiff, charging the plaintiff with various acts of adultery, in which action the plaintiff appeared and defended, and which finally resulted in a decree of divorce a vinculo, on the ground of the adultery of the plaintiff, the record of which was filed July 8, 1858, in the office of the clerk of Monroe county, where the parties then resided, and which judgment was conceded to be in all respects regular on its face.

2. A judgment roll in partition, in a suit wherein the said Christopher Jordan was plaintiff, and the said Elizabeth, the now •plaintiff, one of the defendants, under „ the decree in which latter case, the premises in question were sold to the defendant in April, 1876. It appears that the partition suit was commenced in 1868, but by reason of various delays wras protracted, and resulted in a final decree for the sale of the premises in March, 1876.

The proof of this judgment in partition was objected to by the plaintiff’s counsel, on the ground that it was “ irrelevant, incompetent and immaterial.” The objection was overruled, and the judgment in partition and the subsequent proceedings thereon were received in evidence, and the plaintiff excepted. The plaintiff’s counsel also makes various objections to the effect of the judgment in the action for divorce, which was conceded to be regular on its face, claiming that, as the plaintiff’s inchoate right of dower was vested in her before the decree and before the alleged act of adultery took place, such decree could not operate retrospectively to bar her dower. The counsel for the plaintiff' also offered in substance to prove that the entering of the decree in the action for the divorce was fraudulent as against the plaintiff, who, as was alleged, continued to reside with the said Christopher Jordan, as his wife, for many years after the said decree was obtained, and down to the time of his decease.

In the disposition which we propose to make of the case, the various objections raised to the validity of the decree of divorce will not be considered, as we see no reason to doubt but that the decree in the action of partition, and the sale under the same to the defendant, is a bar to the plaintiff’s action to recover the premises in question which constituted the land sold mider the decree, and under which sale and purchase the defendant claims title.

The judgment record in the action for partition is not set out at length, but, instead thereof, the case contains various recitals referring to the contents of that judgment record. From this circumstance, it is difficult in all respects to fully understand all the proceedings in the partition suit; but as the appellant made up the bill of exceptions, and has caused to be inserted therein these various detached recitals instead of the entire judgment record in partition, it will be assumed that the judgment in partition was in all respects regular so far as any question relating to the jurisdiction of the court is concerned.

The complaint in the partition suit avers that ‘ ‘ the defendant, Elizabeth Jordan, claims an inchoate right of dower in said ; premises, as never having signed any deed or conveyance of said premises, which were conveyed by her husband, Christopher Jordan, in 1852, to George W. Jordan, in which conveyance she did not join.”

The roll contained, among other things, “proof of service of summons and notice of the object of action on Elizabeth Jordan (plaintiff herein), personally, on April 3, 1868,” and averred that the premises of which partition was sought were subject to the inchoate right of dower of the said Elizabeth Jordan, and that she failed to appear or to put in any answer to the complaint; and that none of the defendants had appeared or answered, except certain' infants, who appeared by guardian ad litem and answered, and the action was referred to a referee, who made a report, which was confirmed by the court, and a decree was entered thereupon on the 26th of June, 1875. This decree states that Christopher Jordan, the plaintiff in the partition suit, is entitled to one undivided one-tenth part of the premises, and Elizabeth Jordan, the now plaintiff, is entitled to an inchoate right of dower in the one undivided tenth of said premises. And the decree provides that after the payment of certain sums, for costs and debts, the referee “ pay to the plaintiffs, Christopher Jordan and Elizabeth Jordan, one-tenth thereof.” This we suppose refers to the referee who was, by the said decree, directed to make a sale of the said premises under the decree which was entered June 26, 1875.

It seems that the first decree was opened or set aside in September, 1875, in order to bring in new parties to the action, in place of some who had died pendente lite, leaving minor children ; and by the order vacating the first judgment, any or all of the defendants were permitted to serve answers. A supplemental complaint was filed, and certain of the defendants put in answers, and a guardian was appointed for the infant defendants, who put in the usual general answer, but Elizabeth Jordan did not appear or answer. The answer of the adults to the supplemental complaint denies none of the allegations of the complaint. A second reference then took place to the same or a new referee, who found, among other things, that the said Christopher Jordan, before the commencement of the partition suit, “procured, in due form of law, an absolute decree of divorce, dissolving the marriage contract between the said plaintiff and said Elizabeth Jordan. The second report of the referee was confirmed March 1, 1876, and says nothing about the right of dower of said Elizabeth. On the confirmation of the said second report, the “usual decree” of partition was made, “which also ordered a sale of the premises, and directs that the referee on the sale shall execute a deed, and the purchaser shall be lot into possession on production of the said referee’s deed.” The counsel for the defendant then put in' evidence the deed of the referee on the sale in partition, which purports to convey the whole promises described in the complaint in this action to the defendant. The deed recites the judgment and decree in the partition suit, and the order directing the referee to execute the deed.

It appeared that after the sale in partition Sarah E. Gaskin, one of the defendants in that suit, and Elizabeth Jordan, the now plaintiff, made a motion to set aside the sale in partition and to order a resale. This motion was heard at a Special Term of this court, on the 3d of August, 1876, and appears to have been founded upon the judgment roll and all the papers in the partition suit, and also upon the affidavits of said Sarah R. Gaskin and said Elizabeth Jordan, and the now plaintiff’s attorney. What the grounds of the said motion were do not precisely appear, but among other things it would seem that the plaintiff in this suit still claimed a right of dower in the premises, and asked some kind of relief as to herself, founded on that circumstance. Van Epps, the defendant in this suit, appeared by his counsel, and his affidavit was read in opposition to that motion ; and the motion to set aside the sale and for a resale was denied, and the referee’s report of sale was confirmed.

The plaintiff’s counsel, so far as we understand his positions in reference to the decree and sale in partition, seems to claim that the plaintiff’s right of dower in the premises was not contested or litigated in the partition case, and could not be, and that “ a sale in partition does not cut off or affect a widow’s dower, unless she consents or is paid her dower interest as provided by the statute.”

We do not understand such to be the law; a brief reference to the statutes relating to the partition of real estate, clearly shows, in our opinion, that a woman whose dower has not been admeasured may be made a party defendant in such an action. It is expressly provided’ in 2 R. S. (2d ed.), 208, §§ 5, 6, that she may be made a party to the petition. She may appear and answer on account of her interest, whether “ such interest be present and vested or contingent.” (2 R. S. [2d ed.], 244, § 16.)

Wo assume that the sale in this case was made upon the report of a referee, and without the appointment of any commissioners.

The effect of the sale is declared by the Revised Statutes (2 R. S., 327, § 61), which provides that the sale shall be a bar, both in law and equity, against all persons interested in such premises in any way, who shall have been named as parties in the said proceedings, and against all other persons claiming from such parties or either of them. That it was intended that a sale under a judgment in partition should cut off an inchoate right of dower is apparent from the provisions of chap. 177, of the act of 1840, entitled “ an act for the better securing the interests of" married women in lands sold under judgment or decree in partition.” Section 1 of that act provides that “in all cases of sales under judgment or decree in partition, where it shall appear that any married woman has an inchoate right of dower in any lands divided or sold, or that any person has any vested or contingent future right or estate in such lands, it shall be the duty of the court under whose judgment or decree such sale is made to ascertain and settle the proportional value of such inchoate, contingent or vested right or estate, according to the principles of law applicable to annuities and survivorships, and to direct such proportion of the proceeds of the sale to be invested, secured or paid over in such manner as shall be judged best to secure and protect the rights and interests of the parties.”

From the statement of the judgment roll in partition, which appears in the case, it seems that the right of the now plaintiff, Elizabeth Jordan, was admitted in that partition suit, and it does not appear upon what ground the decree omitted to provide for an ascertainment of the value of that right, whether by virtue of a release to her husband of such right, or by reason of the fact of such decree of divorce found by the referee. If it proceeded upon the latter ground, the omission of the court to provide for the ascertainment of the value of such inchoate right of dower, under the act of 1840, was probably error, in respect to which the said Elizabeth might have had redress by an appeal from the judgment, inasmuch as it does not appear that there was any issue in the case under which the decree of divorce was admissible in evidence; and it is possible from the statements contained in the bill of exceptions that this was one of the grounds on which the now plaintiff moved to set aside the sale in the partition suit. But, however this may be in fact, the judgment for a sale in the partition suit was not void, but should, if erroneous, have been corrected on appeal.

A judgment rendered by a court having power lawfully conferred to deal with the general subject involved in the action, and having jurisdiction of the parties, although against the facts or without the facts to sustain it, is not void as rendered without jurisdiction, and cannot be questioned collaterally. (Hunt v. Hunt, 72 N. Y., 217 ; Jenkins v. Fahey, 73 id., 355.)

A purchaser under a sale in partition is protected against all irregularities in the judgment or in the proceedings upon which it was founded, which do not affect the jurisdiction of the court over the subject-matter or the parties. (Alvord v. Beach, 5 Abb., 451; Brevoort v. Brevoort, 70 N. Y., 136; Jenkins v. Fahey, 73 id., 355.) In this case the Supreme Court had general jurisdiction of the subject-matter, and by its process obtained jurisdiction of the person of the plaintiff; and we think, within the meaning of the statutes before referred to, and the cases above cited, the defendant acquired a valid title to the premises by the sale on the judgment in partition, and the conveyance to him on such sale.

The judgment of the county court and the order refusing a new trial are affirmed.

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

Ordered accordingly.


author: Talcott, P. J.:

text:
    THEODORE S. DEAN, Appellant, v. CHARLES S. CAMPBELL, Respondent.

      Execution — vihat is a sufficient levy under — the execution binds goods from the time of its delivery to the sheriff, except as against purchasers in good faith — subsequent executions.

    An execution having been delivered to the sheriff, he went to the office of the defendant, a lawyer, and found him out; he then went to the defendant’s farm, looked over certain articles of personal property and made a minute of them; he then returned to the defendant’s office, and finding him still out, he looked over his library, opened the cases, handled the books and made a memorandum of them. On the next day he saw the defendant, showed him the execution and told him he had levied on the books.

      Held, that the levy was sufficient as against a subsequent purchaser from the defendant.
    That such levy continued in force for the benefit of executions, received by the same sheriff subsequently and up to the time that the execution under which the levy was made was paid.
    Except as against a purchaser in good faith the goods of the debtor are bound from the time of the delivery of the execution to the sheriff.
    Appeal from a judgment in favor of the defendant, entered upon tlie verdict of a jury.

      A. JP. Butts, for the appellant.

      Geo. TI. Humphrey, for the respondent.
   Talcott, P. J.:

This is an appeal by the plaintiff:from a judgment rendered against him, on a verdict at the Monroe Circuit, in 1879. The action was for wrongfully taking and detaining sundry articles of personal property. The defendant justified as sheriff of Monroe county by virtue of sundry executions against the property of Horace J. Thomas (which were, from time to time, during the years 1874 and 1875, delivered to him as such sheriff to be executed), and a levy by him on the property in question, as the property of the defendant in the executions. The property described in the complaint was sundry law books, the contents of a law library levied on as the property of Thomas, at his office in Brockport, Monroe county. One of the .questions principally litigated was whether a levy had been made upon the contents of this law library on the 6th day of November, 1873. On that subject the deputy sheriff testified 'as follows: “ I went to Thomas’ office ; he was not in; I went to the farm first, and looked over the property there was there, and made a minute of it and came back; then I went to the office and he was not in ; I looked over his library and made a levy on that; then I went back to work, and in the evening or next morning I saw Thomas; I opened the cases and handled the books, and made a memorandum of them in writing; when I saw him I showed him the execution, and asked him what he was going to do about it; and he said it was all right, and he should pay it within sixty days ; I said I should have to make the levy,; he said the library was worth from $2,000 to $3,000, or from $3,000 to $4,000, and it would be good security ; I told him I had already made a levy.” The memorandum of the levy was as follows :

“I have levied on the within described property on the farm of Horace J. Thomas, and in his possession. One bean drill, one horse rake, one roller, three cultivators, one bag of beans untouched, one bag bean straw, twenty-one bags of beans and n quantity threshed on floor, one straw stack, Mohawk Valley reaper, one plough, one fanning mill, one lumber wagon, one wagon truck, one field of wheat, from eight to ten cases of books in his law library in his office, to. satisfy execution the Bank of Monroe v. Horace J. Thomas.

“ Brockport, November 6, 1873.

“CHARLES S. CAMPBELL, Sheriff.

“By Andrew Boyd, Deputy Sheriffs

In', order to make a valid levy it is not necessary that the sheriff should take manual possession of the goods or remove them from the custody of the judgment debtor. It is enough if he assumes to control the property, gives notice to the debtor of the levy, and makes a minute thereof. The law-books were in the view and under the control of the officer, and the facts' testified to by the deputy constituted a valid levy. (Elias v. Farley, 3 Keyes, 398; Roth v. Wells, 29 N. Y., 471.)

The execution of the Bank of Monroe was finally fully paid on the 21st .day of February, 1874, but in the meantime sundry other executions against Thomas had been delivered to the sheriff for execution, and had been placed in the hands of Boyd, the deputy, at Brockport. And amongst others several of those upon which the law library was advertised for sale in May, 1874, at which time this suit was commenced to take from the sheriff the possession of the law library.

On the trial there was some controversy about the question whether a levy had been made on the law library on the execution in favor of the Bank of Monroe, and especially whether the fact of such levy had been communicated to Thomas. But this question was disposed of by the verdict of the jury on the question of fact distinctly presented to them in the form of the following question : 1. Was there a levy on the law library at the time the bill of sale was made ? ” To which the jury answered in the affirmative. There, was no pretence of any other levy than that which was made on the 6th November, 1873. The deputy continued to attach his minute of the levy to the various subsequent executions as they came to his hands.

The levy of the 6th of November, 1873, continued and enured to the benefit of all the executions which subsequently came to the hands of the sheriff at any time before the execution of the Bank of Monroe was fully paid, some executions also came to the hands of the sheriff subsequent to the 21st February, 1874, when the execution of the Bank of Monroe was .fully paid.

On the 18th day of February, 1874, Horace J. Thomas, the judgment debtor, executed a bill of sale of all his right, title and interest of, in and to the law library in question, to Theodore S. Dean, the plaintiff in this suit, who then was, and for some time previously, had been the law partner of said Thomas.

The professed consideration of this bill of sale was $1,000, which it was claimed between the two that Thomas had drawn more than his share of the receipts of the firm.

The jury upon the evidence, which, without recapitulation, it is enough to say warranted the verdict, answered the specific question: “ 2. Was the bill of sale made with intent to hinder, delay or defraud the creditors of Thomas ? ” in the affirmative.

The levy, therefore, of the 6th of November, 1873, enured to the benefit of all the executions which came to the hands of the sheriff subsequent to that levy, who was, from the time of the levy, in legal contemplation in custody of the property, and there never was a moment of time, taking the several dates when the executions came to the hands of the sheriff, but when the executions held the property. (Peck v. Tiffany, 2 N. Y., 451; Crocker on Sheriffs, § 413.) By the Revised Statutes, the goods and chattels of a judgment debtor are bouiid only from the time of the delivery of an execution to the proper officer to be executed (2 R. S., 365, § 13), and the title of a purchaser in good faith cannot bo divested by the mere delivery of an execution without a levy: (Id., 366, § 17.)

But, as the jury have found, the plaintiff was not a purchaser in good faith. So that without any reference to the actual levy, which, as wo have seen was sufficient and continued till the 21st day of February, 1874, the sheriff could probably have held the goods, which, under the finding of the jury, as against creditors, were still the goods of Thomas, the judgment debtor. But the original levy of November 6th, with the subsequent executions continued the title in the sheriff, down to the time when the sale was advertised to take place, and he was, therefore, entitled to a verdict in the action.

In stating his defence, the defendant had particularly set out only one of the executions which had been delivered to him, viz.: that in favor of Thomas Cornes and Charles C. Comes, setting out the substance of the execution, and the defendant afterwards averred in his answer, that prior to about the loth of April, 1874, there were delivered to him eleven other executions, each of which had been duly issued out of the Supreme Court of the State of New York, reciting, as defendant is informed and be-' lieves truly, that judgment had been duly recovered in the said Supreme Court in favor of the plaintiffs therein named against said Horace J. Thomas, the defendant therein named for an amount exceeding fifty dollars as therein set forth, and stating the county where said judgment roll was filed, and the clerk’s office in which said judgment was docketed, and the amount actually due thereon, and stating the command of the said executions in the ordinary form, but in his answer had omitted specifically to set forth the issuing of the said execution in favor of the said Bank of Monroe, which, as before said, had been paid prior to the commencement of the action against the sheriff. It seems that a case had been printed in this action previous to the said trial, and the plaintiff’s attorney had made a stipulation, in writing, as follows : After entitling the action, “ I agree to admit, on the trial of the above entitled action, the issuing of the executions set forth in the printed case in this action as therein stated and at the times therein mentioned to the sheriff of Monroe county, and that the same were in all respects regular and valid; also 1 Exhibit A,’ in said case set forth, but subject to all objections, not formal, to the competency of said exhibit.” Dated January 8, 1879. — Alexander P. Butts, plaintiff’s attorney.

As it is stated in the case, the plaintiff’s counsel read from the printed case and offered in evidence the executions in said stipulation, being the said execution in favor of the Bank of Monroe and another in favor of George Upton against said Horace J. Thomas, which was objected to by the plaintiff’s counsel as not alleged in the answer. “ The defendant was therefore permitted to amend and did amend his answer by setting forth the issuing of said executions and the rendition of the judgments on which the same were founded. Objection overruled by the court and the same were received, in evidence and an exception taken by the plaintiff. We are at a loss to understand the point of this objection. But, assuming that the evidence was offered by the defendant’s counsel, we do not see that it raised any material question. The executions were admitted by the stipulation which reserved no objection except to some paper in that former case which was known as “ Exhibit A.” What that paper was we are not advised, nor is it material.

The issuing of the executions to the sheriff, and that the same were in all respects regular and valid was admitted by the stipulation, and the objection seems to have been to the admission of the executions. The plaintiff did not claim that he was in any way misled by the proof of the executions, as it did not probably require any amendment to render them admissible after the stipulation. Sundry' other executions were also offered and received in evidence, being, as we suppose, the executions which were alleged in the answer but not particularly set forth therein. To the admission of these the plaintiff made only a general objection, stating no grounds therefor. If the executions were not set forth with sufficient particularity tire defect should have been corrected by an order to make the answer more definite.

There are no other exceptions in the case which seem to require any particular remark. Substantial justice does not seem to require a new trial of the action, as the jury has found that the levy was made as stated by the deputy sheriff, and especially as they have found that the title set up by the plaintiff was void as to creditors.

Judgment should be affirmed.

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

Judgment affirmed.


text:
    WILLIAM RYAN, Respondent, v. CHARLES KNORR, Appellant.

      Seneca Nation — right of Indian to lease land — act of Congress of 1875, chapter 90, confirms prior leases — it supersedes a prior treaty — when the same lot is leased to two persons the one receiving the fi/rst lease has the bettei• title.

    The act of Congress of February 19, 1875, chapter 90 of that year, authorizing the Seneca Nation of New York Indians to lease lands within their reservations, and confirming existing leases, was intended to give validity to all existing leases given by Indians to white persons, for the period of at least five years from the passage of the said act, and to render them binding upon the parties thereto, and upon the Seneca Nation.
    Even if the act of 1875 was in conflict with the' provisions of the prior treaties entered into between the United States and the Indians, yet the act superseded the prior treaties, and the consequences arising from such conflict are beyond the sphere of judicial cognizance.
    "When an Indian, prior to the passage of said act, leased the same land to two different persons, held, that the one who received the first lease had the better title.
    Powers of Congress and of the State in reference to the Indians, considered.
    Appeal from a judgment iu favor of the plaintiff, entered upon the report of a referee.
    The action was in ejectment to recover the possession of certain land in the Indian Reservation.

      James O. Johnson, for the appellant.

      Henderson & Wentworth, for the respondent,’
   Talcott, P. J.:

This is an appeal from a judgment in favor of the plaintiff, entered on the report of a referee. It comes up on the report of the referee alone, no case containing the evidence being submitted. The action is ejectment for thirteen acres of land, situated in the village of Salamanca, in Cattaraugus county, in this State, and beiug within the bounds of the'“Alleghany Reservation.”

This reservation is a tract of land, by certain treaties between the United States and the Seneca Nation of Indians, reserved to that nation. Neither of the parties is a Seneca Indian, both being white men. From the report of the referee it appears, in substance, that on the 31st of January, 1868, one George Jemison, a Seneca Indian, residing on the said reservation, executed and delivered to the plaintiff a lease of the premises described in the complaint, for the term of twelve years, at the annual rent of twelve dollars. Soon after the making of the said lease, the plaintiff entered under the same, and made some improvement thereon, clearing a portion thereof from timber and stumps, and improved a portion thereof for agricultural purposes. On or about the 26th of April, 1870, the same George Jemison executed and delivered another lease of the same land to the defendant, who also entered and made improvements of the same character. Neither party resided on the land, and each has paid the rent reserved in his lease. In February, 1875, the plaintiff commenced to build a dwelling-house upon the said premises, when the defendant forbid his doing so, and claimed the exclusive possession of the whole of said premises under his (the defendant’s) lease. Both the said leases were “formal and existing” leases at the time of the approval of the act of Congress of February 19, 1875, on which day the act of Congress, entitled “an act to authorize the Seneca Nation of New York Indians to lease lands within the Cattaraugus and Allegany reservations, and to confirm existing leases ” became a law. (18 U. S. Statutes at Large, chap. 90, p. 330.)

The said act of Congress, amongst other things, provided that all leases of land within the Cattaraugus and Allegany reservations in the State of New York, heretofore made by the authority of the Seneca Nation of New York Indians to railroad corporations, are hereby ratified and confirmed, and said Seneca Nation may, in accordance with their laws and form of government, lease lands wfithin said reservations for railroad purposes. The act then provides that the president of the United States shall appoint three commissioners, whose duty it shall be, as soon as may be, to survey, locate and establish proper boundaries and limits of six specified villages within said Allegany reservation, “ including therein, as far as practicable, all lands now occupied by white settlers, and such other lands as in their opinion may be reasonably required for the purposes of such villages; and they shall cause a return of their doings in writing, together with maps of such surveys and locations, duly certified by them, to be filed in the office of the county clerk of the county of Cattaraugus in said State, there to be recorded and preserved. The boundaries of said villages so surveyed, located and established shall be the limits of said villages for all the purposes of this act.” The act then proceeds in section 3 : “ That all leases of land situate within the limits of said villages, when established as hereinbefore provided, except those provided for in the second section of this act, in which Indians, or said Seneca Nation, or persons claiming under them are lessors, shall be valid and binding upon the parties thereto and upon said Seneca Nation, for a period of five years from and after the passage of this act, except such as by their terms may expire at an earlier date, and at the end of said period, or at the expiration of such leases as terminate within that time said nation, through its counselors shall be entitled to the possession of the said lands, and shall have the power to lease the same,” and the said section then goes on to provide that the said leases, at the expiration of said period or at their termination shall be renewable for periods not exceeding-twelve years, and that the owners of improvements erected on said lands shall be entitled to such renewed leases upon terms to be agreed upon between them and the said counselors ; or, in case they are unable to agree on the terms, then they are to be settled by referees to be appointed as therein specified; and the said act further provides, in section 4, that the said Seneca Nation is authorized by resolution of its counselors, duly elected according to the laws and system of government of said nation, to lease lands within said villages to which, by the laws or customs of said nation, no'individual Indian or Indians, or other person claiming under him or them, has, or is entitled to the rightful possession. The act further provides, that it shall be the further duty of the said commissioners to cause all lands within said villages now leased to be surveyed and defined, and to cause the same to be designated upon the maps of such villages, and for the recording of all such leases in the office^ of the clerk of Cattaraugus county, and that the courts of the State of New York in the county of Cattaraugus having jurisdiction in real actions, and the Circuit and District Courts of the United .States for the Northern District of New York, shall have jurisdiction of all actions for the recovery of rents and for the recovery of the possession of any real property within the limits of said villages.

Before the commencement of this suit the commissioners, under the said act of Congress, had made the surveys specified, had made and filed their report and maps pursuant to the said act, and the premises in question are surveyed and mapped as a part of the village of Salamanca, one of the six villages named in the act. The premises in question in this suit are designated on the said map as leased land, and both the said leases were by the said commissioners entered in a “lease book” prepared by said commissioners, and filed as apart of their report. The plaintiff’s said lease was duly recorded pursuant to said act, in the office of the clerk of Cattaraugus county on the 6th day of December, 1875.

Under the constitutional power to regulate commerce with the Indian tribes, and under the treaty power the general government has assumed control over the lands lying within the limits of the United States, occupied by any nation of Indians still retaining to any extent their tribal relations, and this control and jurisdiction has been exclusive, except that the States have been permitted to legislate, so far as necessary to preserve the peace and to protect the Indians from trespasses and intrusions on their lands. (People ex rel. Cutler v. Dibble, 21 How., 366.)

The Indian tribes are not foreign nations. Their relations to the United States resemble those of a ward to his guardian. They are independent political communities, retaining the right oft self-government, subject to the protecting power of the United States, and a State Legislature has no jurisdiction over the Indian territory contained within the territorial limits of such State. (Cherokee Nation v. Georgia, 5 Peters, 1; Worcester v. Georgia, 6 id., 515.) “ The power of the general government over the Indian tribes and the territory occupied by them, within the constitutional limits of legislation, is plenary. To what extent it shall be exercised rests in the sound discretion of Congress, limited only by considerations of policy and humanity. (The Cherokee Tobacco, 11 Wall., 616.)

“The rights of the Indians do not depend on this or any other statutes of the State, but upon treaties which are the supreme law of the land; it is to these treaties we must look to ascertain the nature of these rights, and the extent of them.” (Per Nelson, J., in The New York Indians, 5 Wall., 768.)

Before and after the adoption of the Constitution of the United States, the Federal government made several treaties with the New York Indians, the treaty of Canandaigua, to which the Seneca Nation was a party, being one; and by that it was agreed that the land in the several reservations mentioned belonged to the said Indians, and that the United States would never claim the same, nor disturb the Indians, but it should remain theirs until they chose to sell the same to the people of the United States.

By the treaty of 1838 with the Seneca Nation, several of the reservations, including the Cattaraugus and Allegany reservations, were, with the consent of the United States, agreed to be ceded to the pre-emption owners, the assignees of Massachusetts ; but, differences having arisen between the Indians and the pre-emptive owners, a new treaty was made in 1842, by which it was agreed that the Indians should remain in the possession of the Allegany and Cattaraugus reservations, with the same right and title in all things which they had before the sale (the treaty of 1838), which was the original and absolute right of occupancy. Two other reservations, the Buffalo Creek and Touawahda reservations, being ceded to Ogden and Fellows, as the representatives of the owners of the pre-emptive title, the Indians accordingly remained in possession of the two retained reservations. In the year 1845, the Legislature of this State passed an act giving its sanction to a form of government for the Indians residing on the Allegany and Cattaraugus reservations, having more semblance of a systematic government than had theretofore prevailed among them, which act provided that the Seneca Nation of Indians, residing on the Allegany and Cattaraugus reservations in this State, shall be deemed to hold and possess said reservations as a distinct community, and authorizing them by the name of the “ Seneca Nation of Indians,” to prosecute and maintain, in all courts of law and equity in this State, any suit or proceeding necessary or proper to protect .ilife rights and interests of the said nation in and to the said reservations.’

This, in the ordinary form of a legislative enactment, contained many other provisions and regulations in regard to the powers and duties of the officers of the said, Seneca Nation, in respect to which it may be doubted whether the Legislature of New York had any jurisdiction or authority. (Laws of 1845, chap. 150.) This act was materially amended hi 1847 (chap. 365). It is understood that both of these acts ivere passed at the request of the Seneca Nation, and they appear to have been acquiesced in by their people. By the act of 1847, the. right of the chiefs of said nation to sot apart to the use. of any individual Indian, or Indian family, so much of said land ivithin said reservations “ as the chiefs shall deem reasonable and an equitable proportion in reference to .the whole number of Indians not possessing land,” is acknowledged, not to say conferred.

By the 12th section of the act of Congress of 1834 (4 U. S. Statutes at Large, chap. 161, p. 729), it was provided that “ no purchase, grant, lease or other conveyance of lands or of any title or claim thereto from any Indian nation or tribe of Indians shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution, ” etc.

And by the 11th section of the same act-, all persons were prohibited from making “a settlement on any lands belonging, secured or granted by treaty with the United States to any Indian 'tribe,” or to survey or to attempt to survey such lands or designate any of the boundaries by marking trees, etc., and the president was authorized to take such measures and employ such military force as he should deem necessary to remove such trespassers. By the act of Congress of June 14, 1862, chap. 101, 12 U. S. at Large, p. 427, it was provided, “ that whenever any Indian, being a member of any band or tribe with whom the government has or shall have entered into treaty stipulations, being desirous to adopt the habits of civilized life, shall have had a portion of the lands belonging to his tribe allotted to him in severalty in pursuance of such treaty stipulations, it shall be the duty of the agent and superintendentof such tribe to provide that such Indian shall bo protected in the peaceful and quiet occupation and enjoyment of the lands so allotted to him.”

Prior to the passage of the act -of Congress before referred to (approved February 19, 1875), one or more railroads, with the consent of the said Seneca Nation, had occupied portions of said Allegany and Cattaraugus reservations, claiming the right of way by or under contracts with the Seneca Nation to which the general .government was not a party and to which it had not given any express sanction, and many white persons had settled upon the Allegany reservation, forming the villages composed of white settlers mentioned in the second section of the said last mentioned act. The -white settlers in general occupied their respective lots under leases given by individual Indians residing on said reservation, presumptively under allotments to the various Indian lessors, pursuant to the laws and customs of the Seneca Nation, and under the supposed sanction of the act of Congress of 1862 above quoted, and also of the legislative authority of this State in the act of 1847. They had made valuable improvements on their respective lots, had built the several villages mentioned, where before it -was a wilderness, and lived in general harmony with the Indians on the reservation ; under such circumstances the act approved February 19, 1875, was passed and grew out of the necessities of the case. It will be perceived by an examination of its provisions that its intent is to maintain generally all the rights of the Indians to the soil, and so to speak, to the fee simple of the reservation, and only to legalize such leases as they should thereafter, in accordance with their system of government and their usages, consent to, or presumably had theretofore consented- to.

Though the act of February 19, 1875, was, in many respects, carelessly and inartificially drawn or engrossed, one thing is quite apparent from its provisions, to wit: that, among other things, it wras designed to give validity to all existing leases where white persons hold under Indian lessors, for at least the period of five years from the passage of the act, and to render them binding upon the parties thereto, and upon the Seneca Nation. It may be suggested that such an act of legislation would bo in contravention of the treaty which secures to the Indians the land of the said reservation until they should', willingly cede the same to citizens of the United States. But the Indkm lessors were, by Congress, presumed to be acting under.,the authority and with the consent of the Seneca Nation, which had consented to the allotment of the lands leased, to the individual occupancy of the several Indian lessors, and the prohibition agáinst white persons taking a lease from an Indian, being a matter of congressional regulation, its violation could be condoned, or ’excused, or ratified by Congress. But, assuming that the provision which purports to bind the Seneca Nation to the validity of the leases would be in contravention of such part of the treaty as secures the land to the nation, it is well settled that an act of Congress may supersede a prior treaty. The consequences in all such cases give rise to questions which must be met by the political department of the government. They are beyond the sphere of judicial cognizance. (Case of the Cherokee Tobacco, 11 Wall., 616.) Congress being supreme on the subject of intercourse with, the Indians, both to reghlate commerce with them and to make, treaties with them, we think the constitution and laws of the Strife of New York, so far as they are in conflict'with the act of Congress of February 19, 1875, are in effect suspended or abrogated by that act. There is nothing in the act of Congress, giving validity to leases, which determines whether the lease to the plaintiff, or the subsequent lease to the defendant, is entitled to priority. Therefore, the only rule to be resorted to is one not only of natural equity, but of positive law;, qui prior est in tempore potior est in jiire, and apply the law as it would be applied if the lease’s had heen .between white persons. Wc think the plaintiff was entitled to recover, unless the defendant stands'. in the position of a bona fide lessee without notice, which is not found by- the referee or,' so far as appears, claimed by the defendant.

The judgment should be affirmed.

Present — Tadcott, P. J., Smith and Hardin, JJ.

Judgment affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CLINTON LARRABEE v. THOMAS MULHOLLAND, Police Justice, etc., Respondent.

      Oiiy of Syracuse — common coundl may compel milk dealers to take out licenses — 1857, chapter 63.
    The common council of the city of Syracuse has power, under its charter (chapter 63 of 1857), to pass an ordinance prohibiting any person from peddling or delivering milk in any of the public squares, streets or alleys of the city without first obtaining a license so to do from the mayor, and also the further power to authorize the mayor, within certain limits, to fix the license fees.

      Certiorari to review the conviction of the relator, in the Police Court of the city of Syracuse, of a misdemeanor in violating an ordinance of the said city.

      I). Pratt, for the relator.

      Martin A. Knapp, for the respondent.
   Talcott, P. J. :

This is a certiorari which brings up the record of a conviction of the relator for the violation of an ordinance of the city of Syracuse. The ordinance was passed July 16, 1877, and is as follows: “ It shall not be-lawful for any person or persons to peddle milk, or to deliver the same to the inhabitants of the city, from any cart, wagon or vehicle whatever, in any of the public squares, streets or alleys of said city, without first having been duly licensed to do the same by the mayor of said city, as hereinafter provided, and any person guilty of the violation of this ordinance shall be adjudged guilty of a misdemeanor, and upon conviction subject to a fine of not more than fifty dollars for each offence. The mayor of said city shall have power, and is hereby authorized, to grant a license to such person or persons as in his judgment shall appear proper and the best calculated to secure to the inhabitants of said city pure and wholesome milk, and any person applying for a license to sell and distribute milk shall before and upon granting the same pay to said mayor, for the use of said city, a sum not less than five dollars, nor more than ten dollars, to be fixed by said mayor, and made in all casés uniform, for one year from the issuing of said license, for each and every wagon, cart or vehicle used by him in the peddling or distribution of milk, in any of the public squares, streets of alleys of said city. Upon such payment being made, and license granted to any applicant therefor, the said mayor shall give ■ to such party or person a written license to peddle, sell and deliver to the inhabitants of the said city pure and wholesome milk,” , /

■ The relator was arrested for. a violation of this ordinance, for-peddling and delivering milk to the inhabitants of the said city of Syracuse, upon one of the public streets of the said city, from a vehicle used by him for that purpose without having a license, as provided by the said ordinance, and on due proof of the facts was convicted and sentenced to pay a fine of five dollars for such offence, and to stand committed until.such fine was paid.

On a return to the writ of certiorari in the case, the validity of the ordinance is challenged.

We think there can be no doubt of the power of the common council to pass the ordinance as a matter of police and sanitary regulation.

Among the specific grants of power to the municipal corporation of Syracuse (Laws of 1857, chap. 63, title 4, § 4) is to be found the following power :

“ To license and regulate cartmen, porters, # * * hawkers, peddlers, pawn-brokers,” etc., “ and fix the rates to be paid to or by them, to prohibit unlicensed persons from acting in either of such capacities,” to’authorize the'mayor,to grant such license, etc.

In addition to this there is in the charter a general grant of power, as follows: “ The common council shall have power to make, alter, establish, modify, amend and repeal, all such ordinances, rules, fire and police regulations, by-laws and resolutions, which are not in violation of.the laws of this State or of the United States, as they shall deem necessary and proper.” (Laws of 1857, chap. 63, § 6, p. 114.)

The provisions of the charter fully authorized the enactment of the ordinance in question. (Dillon on Mun. Cor., §§ 93, 250 to 264; People ex rel Cox v. Justices Special Sessions, 7 Hun, 214; Blazier v. Miller, 10 Hun, 435; City of Brooklyn v. Breslin, 57 N. Y., 591; State v. Clark, 28 N. H. [8 Foster], 176.)

The objects.and purposes of the ordinance are indicated on the face thereof, and it is' plain that it was intended as a sanitary and police regulation, and not as a tax for the puipose of raising a revenue. (Johnson v. Philadelphia, 60 Pa., 445.)

It appeared that, at the time when the defendant peddled the milk in question, ho was'in the employ of the “ Oiiondaga'County Milk Association,” a body corporate created by act of the Legislature (Laws of 1872, chap. 102), employed to sell and deliver milk for that corporation in the city of Syracuse, but it was admitted that the corporation had no license under'the ordinance. Some immunity was claimed for the defendant, on the ground that ho was in the employ of that corporation. But we have looked through the charter of that company, and wo have failed to discover anything therein which exempts either it or its employes from the ordinances of the city applicable to the subject.

The conviction should be affirmed.

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

Conviction affirmed.


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    JOHN F. SMYTH, as Superintendent of the Insurance Department of the State of New York, Respondent, v. JULIA T. MUNROE, AND JAMES J. BELDEN, as Assignee in Bankruptcy of ALLEN MUNROE, Appellants, Impleaded, etc.

      Assignment of mortgage— certificate of mortgagors as to the validity of the mortgage— when the assignee will be presumed to have relied thereon — when the mortgagors are estopped, by — when a married woman is estopped by.

    December 12, 1873, the defendants, Allen Munroe and Julia his wife, executed to an insurance company a mortgage for $40,000 upon land belonging to the ■wife. The mortgage was assigned by the company to the supezlntendent of the insuz-ance depaz-tnzent to procure the suz-z-ender to the company of $40,000 of government bonds which had been deposited by it with that depaz-tment.

      At the time the assignment was executed the said Allen Munroe and Julia his wife signed and acknowledged an instrument in which they stated that they were the owners in fee of the land described in the mortgage; that they consented to the assignment of the mortgage to the superintendent of the insurance department; that the whole amount named therein, with interest from'its date, was unpaid, and that there was “no offset to, or legal or equitable defence ag'ainst the sameJ
    In an action, to foreclose the mortg-ag-e the saidTJuiaroe and wife, and the assignee in bankruptcy of Munroe; set up the defence of usury.

      Held, that asdlie statement signed by Mmirbo and wife had been'.made to the superintendent af thp insurance depártniout,' in view of aiid for the purpose of the 'assignment'.-to'' him, and in pursuance of the usual custom shown to have been adopted by that department in taking assignments of mortgag-es, it was to be presumed that the superintendent acted on the faith of the representation as an essential element in the transaction.
    That as the certificate contained a consent to this particular assignment of the mortgage, the signers were chargeable with, and could not deny knowledge of the use which was made of it.
    That the defendants were estopped by it from setting up-the defence of usury as against such assignee. . ■
    Such a certificate signed by a married woman is to receive the same construction, and may be as much relied upon as that of her husband, by parties dealing with the security to which such certificate ora’epresentation relates.
    . Appeal from a judgment in favor of tire plaintiff, entered upon the trial of this action by the court without a jury.

      George N. Kennedy, for the appellants.

      Beach & Brown, for the respondent.
   Talcott, P. J.:

This is an action to foreclose a mortgage upon land of which the defendant, Julia T. Munroe, is the owner in fee. The mortgage was made December 12,j 1873, to the NeAv York State Life Insurance Company, to secure the.sum of $40,000, loaned to Allen Munroe, the husband of said Julia T. Avho, together with Belden, the assignee in bankruptcy of Allen Munroe, were the only parties who answered the complaint, and whose ansAvers severally set up the defence that the mortgage was made upon a usurious contract and consideration.

The mortgage was by the Life Insurance Company transferred and assigned unto Orlow W. Chapman, the predecessor in office of the plaintiff, as such superintendent, and in consideration of such transfer and assignment, the said Life Insurance Company received from the said superintendent $40,000 in government bonds, which had theretofore been deposited in the insurance department as security to policyholders, in pursuance of law, and in place of $40,000 at the par value of the said bonds, the said mortgage with a bond accompanying the same was substituted, and was thereafter held as security for the policyholders of the said company pursuant to tho statute in such case provided. Simultaneously with tho execution of the assignment of the said bond and mortgage to the superintendent of the insurance department the said Allen Munroe' and Julia T. Munroe executed an instrument, as follows :

“ The undersigned, mortgagor or mortgagors in the mortgage above mentioned, and tho present owner or owners in fee of the mortgaged premises, do hereby consent to the assignment of the said bond and mortgage to tho superintendent of the insurance department of the State of New York, and do hereby certify and agree that there is now unpaid and due or to become due, on said bond and mortgage tho principal sum of forty thousand dollars, with interest thereon from, the 12th day of December, 1873, and there is no offset to, or legal or equitable defence against the same.

“ Dated this 12th day of December, 1873.

“ALLEN MUNROE.

“JULIA TOWNSEND MUNROE.”

Which said instrument was duly acknowledged on the day of its date, before a notary public of Onondaga county.

This instrument, with the acknowledgment thereof, appeared upon the same paper upon which the assignment from the life insurance company to the superintendent of the insurance department was written or printed. The defence of usury as between the life insurance company and the mortgagors was clearly established by the evidence. But the justice before whom the cause was tried at the Special Term held that Allen Munroe, Julia T. Munroe, and James J. Bolden, the assignee in bankruptcy of Allen Munroe, were estopped from setting up that defence by reason of the representation and agreement as to the facts which was signed by the .¿aid Allen and Julia T., and that the plaintiff was entitled to a ’judgment for a foreclosure of the said mortgage to collect the amount of the principal and accrued interest mentioned therein.

It is the well settled law of this State that such a statement as is contained in the written certificate or representation signed by Allen Munroe and Julia T. Munroe. made for the purpose of inducing a purchaser to believe, the statement to be true, and to the effect that the bond and mortgage therein mentioned were, in fact, as stated in said certificate and representation, not subject to any defence, legal or equitable, ancljn case the assignee, confiding in the truth of the said statement, -advances any valuable consideration on taking such assignment,’ then the mortgagor and all persons claiming through him are, by .force of the certificate and statement, estopped from asserting the actual fact to be different frorii the representation, and this is upon the familiar doctrine of estoppel in pais. And for this reason the parties bound by the estoppel are prevented from availing themselves of the benefit of the defence of the statute of usury, as well as of other defences covered by the representation. (D'Amoreux v. Vischer, 2 Comst., 278; Real Estate Trust Co. v. Seagreave, 49 How., 489; Payne v. Burnham et at, 62 N. Y., 69.)

The counsel for the defendants requested the court to find the facts constituting the usury, which the court refused to find.

Also, that the superintendent of- the insurance department did not rely upon the statements in the certificate contained, and was not influenced thereby in taking the assignment of the bond and mortgage, and in paying therefor. Also, that the said superintendent, at the time he took the' assignment of the said bond and mortgage, was informed, or had sufficient knowledge to put him upon inquiry, of the true consideration upon which the bond and mortgage had been made to the life insurance company. The court also refused to find either of said propositions as requested.

The court properly refused-to .find, the facts constituting the usury, if the defendants were by the said certificate estopped from sotting* up those facts as a defence to the action.

The court also properly refused to find that the superintendent did not rely upon the statements in the certificate. Tire statement having been made to him in view of and for the purposes of the assignment to the superintendent of the insurance department, and in pursuance of the usual custom shown to have been adopted by that department in taking assignments of mortgages, it is to be presumed that he acted-on the faith of the representation as an essential element in the transaction, and there was ho evidence to counteract this presumption.

The court also properly refused to find that the superintendent had notice of the true consideration of the bond and mortgage as between the mortgagors and the life insurance company. Or, that he had sufficient knowledge of the transaction to put him upon inquiry. There was no evidence upon which such a finding could have been sustained.

Among other findings of fact the court did find, “ that at the time the said Julia T. Munroe executed the said certificate she had no knowledge of the purpose for which it was required, or that it was to be used in any manner whatever, and that in the absence of of such knowledge she signed the same at the request of her said husband, and without any knowledge or information of the use which was to be made of the same.”

This finding of fact seems to bo without any evidence to'support it, and appears to be contrary to the evidence. The certificate contained a consent to this particular assignment to the superintendent of the insurance department, and the signers thereof were chargeable with notice that such was the use to bo made of the bond and mortgage, and the certificate was attached to the assignment itself. Mrs. Munroe was not examined as a witness, and her knowledge of the purpose of the certificate is only to be inferred from the contents of the certificate itself, and from the surrounding circumstances. These all imported that the design of the certificate was to induce the superintendent of the insurance department to take an assignment of the mortgage in reliance upon the statement that there existed no legal or equitable defence thereto, and the surmise that Mrs. Munroe was ignorant of the.purpose of the certificate seems to have been founded, not so much upon the legal evidence in the case as upon the assumption that married women in relation to such transactions trust the business .to their husbands, and neglect to inform themselves of the object and purpose of business transactions, which are shown by the result to have largely involved their own individual interests.

A married woman may be estopped by such a certificate (Payne v. Burnham, supra), and there would be no safety in allowing- her to set up her ignorance of the object and purposes of such an instrument, in the absence of any fraud committed on her by misrepresentation, or otherwise, if innocent parties could not rely upon the simple statements of fact contained in it. We think the certificate of a married woman under such circumstances is to receive the same construction, and may be as much relied upon as that of her husband, ’by parties dealing with the security to which the certificate or representation relates.

Though we think the finding in this case referred to is not sustained by, but is contrary to the legal import and effect of the evidence,' still it made no' difference in the result of the case, as notwithstanding such finding, the court arrived at the conclusion that Mrs. Muuroe was estopped by the certificate from setting up the defence of usury against the mortgage. The counsel for the appellant claims that there was no evidence that the certificate of the mortgagors was ever shown to the superintendent of the insurance department, or that he knew of its existence at the time he took the assignment of the bond and mortgage. .The finding of the court of the fact is contrary to this claim, and we think the evidence clearly established the truth of the finding. The certificate was on the same paper with the assignment, and the evidence .shows that all the papers were delivered together at the insurance department.

The judgment should be affirmed, with the costs of" the appeal.

Present — Talcott, P. J., and Smith, J.; .Hardin, J., not sitting.

Judgment affirmed, with costs.


text:
    WILLIAM T. HARVEY, as Administrator, etc., of WILLIAM F. HARVEY, Deceased, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Railroad company— liable for injury to its servant occasioned by its failure to provide a sufficient number of employes to perform the work — employment of additional servants after an accident — when evidence of, admissible — notice to master of incompetenoy of sei'vant — master liable if his negligence is the proximate cause of the accident, though another’s negligence contributes thereto.

    The plaintiff’s intestate, a fireman on one of defendant’s engines, was killed by ■ reason of the engine leaving the track while xoassing a station, owing to the misplacement of a switch. It apioeared that the switchman on duty at the time of the accident had heen originally employed as a baggageman and general helper, working from 7 A. M. to 11 P. M. That subsequently the force of men was reduced and he was compelled to take charge of the switches, working from twelve at night to twelve or one the next day. There were ten switches at the station, three to the west and seven to the east of it. In each day there were two local freight trains which had i¡o -be switched from one track to another; nine passenger trains which stopped at the station, and about eighty which passed it in the course of every twenty-four hours. The plaintiff claimed to recover on the grounds that the defendant negligently entrusted the duties of switching the trains to an inconqoetent and inexperienced person, and that it had failed to provide sufficient hands to discharge such duties, and had knowingly and unreasonably imposed upon the switchman labors which were too numerous and distracting for one man to perform.

      Held, that the question of the defendant’s negligence and failure to provide a sufficient number of employes should have been submitted to the jury, and that it was error for the court to direct a nonsuit.
    Upon the trial the plaintiff offered to prove that immediately after the accident the company employed an additional switchman at the station.

      Held, that it was error for the court to refuse to admit the evidence.
    Upon the trial the plaintiff offered to prove that the switchman employed at the time of the accident had complained to his superiors, that the services required of him were too much work for one man to do, and that he had not the requisite experience to perform them.

      Held, that it was error for the court to refuse to admit the evidence.
    It was claimed by the defendant that the accident was due to the negligence of the engineer in failing to observe the condition of the switch, and that for his neglig'ence the company was not liable.

      Held, that the negligence of the engineer was no excuse if the accident was occasioned by the want of sufficient servants to do the business of the company at that station, or by the incompetence of the switchman, of which the company had notice.

      Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term; after a nonsuit ordered at the circuit.

      J. H. Martindale, for the plaintiff.

      W. H. Adams, for the defendant.
   Talcott, P. J. :

This is a motion for a new trial after a nonsuit at the Wayne Circuit. The action is by the plaintiff, as the administrator of William F. Harvey, for the alleged negligence of the defendant, by .which it is claimed by the plaintiff that the intestate was killed.

The intestate was a fireman in the- employ of the defendant, and was killed in the course of his employment at the village of Lyons, in Wayne county, under the following circumstances : On the 5th day of January, 1877, a freight train was passing Lyons station, upon the line of the defendant’s road, going west. At this time there were four tracks at the 'station. For the purpose of throwing cars from one track to another,- there were ten switches, throe at the west end of the station, and seven at the east end ; one switch at the east end of the station, and one at the west end were used for the purpose of letting the local freight trains into the freight yard, and the other switches were used for the purpose of shifting the trains from one track to another; There were two local freight trains, daily, one running each way. There were also niue passenger, trains stopping at the station in the course of the twenty-four hours, but these latter trains did not ordinarily use any of the switches. The intestate was, on the day in question, employed as a fireman on an engine drawing a freight train westerly past the station; and ivas killed by the sudden plunge of his engine into a race way. The engine had left the track by reason of the displacement of a switch.

The gravamen of the plaintiff’s case was, that the defendant had wrongfully and negligently entrusted the duties of switch-man at that station to an incompetent and inexperienced person, and had failed to provide sufficient hands to discharge the care and duties of the station, and had knowingly and unreasonably devolved upon the switchman labors which were too numerous and varied, and distracting at that station for one man to perform.

The switchman in question was one John Baldwin, who was the principal witness for the plaintiff upon the main issue in the case.

John Baldwin entered the service of the defendant as baggage-man and general helper about the promises in 1870. When thus employed ho commenced work at- seven o’clock in the morning and remained on duty until eleven o’clock p. m. Afterwards the force at this station was reduced, and Baldwin, in addition to his duties as baggageman, was entrusted with the care of the switches. Baldwin’s hours of duty wore then from twelve o’clock at night to twelve or one the next day,‘and another person taking the duties fiora twelve m. to twelve at night. Usually about eighty trains passed the Lyons station in the course of the twenty-four hours. The various duties which woro expected to be performed by Baldwin during the time of his “ beat,” as also the manner in which the force had been reduced, are stated in detail in the case. The nonsuit was granted after the close of the proofs on both sides, and was excepted to by the defendant, and was granted notwithstanding the request of the defendant’s counsel for leave to go to the jury on the facts.

It did not distinctly appear how the switch in question came to bo displaced. Baldwin was discharged from the employ of the defendant the day after this accident, and immediately -another man whs put there “ to take care of the switches.” It is undoubtedly true that it was the duty of the railroad company to the intestate to provide competent servants at Lyons to attend-to the switch, and have the track in order for the passage of the train on which he was employed, and it cannot be justly claimed that the intestate, by reason of his employment, took any risk which would relieve the company as a principal from the performance of .that duty. (Flikes Case, 53 N. Y., 564; Wharton on Neg., § 233.)

And we think that the manifold. and more or loss distracting duties which were expected of the defendant afforded some evidence that the number of men employed to perform them was insufficient to their due discharge. In the case of Tinney v. The B. and A. R. R. Co. (52 N. Y., 632), cited'by the defendant’s counsel, it is expressly stated in the opinion delivered in the Court of Appeals, that the evidence failed to show that there were not enough switchmen employed to transact the defendant’s business in safety. This is not a fact capable of being mathematically demonstrated, and the opinions of witnesses on the subject would bo inadmissible. It is an inference to be drawn by the jury from all the facts proved in regard to the duties which were required to bo performed, and the number of men employed in their performance. The jury, from their general knowledge of the ability of men engaged in various employments of life to endure labor and to concentrate and fix their attention on the .performance of various duties, is the tribunal to determine the question of fact so long as there is evidence from which it may be reasonably claimed any inference against the defendant is .justifiable, and wo think there were facts proved in this case which made it a proper case to bo -decided by the jury.

We think also that error was committed in excluding the evidence that the company immediately after the accident employed- an additional switchman at this station. This was so immediately after the. accident -that within the cases on the subject it was proper to be submitted to the jury, as a kind of admission on tiro part of the company that the service had been theretofore insufficiently supplied. (Dale v. Del., etc., R. R. Co., 73 N. Y., 472; Westfall v. The Erie R. R. Co., 5 Hun, 75.)

Also, that an error was committed in excluding the evidence that Baldwin complained to his superiors, by whom he was employed, that the services required of him wore too much work for one man to do, and that he (Baldwin) had not the requisite experience to perform it. The ’ evidence was at all events admissible as showing notice to the company of those facts. (Wharton on Neg., § 242; Flike's Case, 53 N. Y., 564.)

And we do not think that, if it- were true that F. F. Purdy, the engineer on the train, was guilty of negligence in failing to observe the condition of the. switch; that the company was thereby excused from liability, provided the accident was occasioned by the want of sufficient servants to do the business at that station, or by the incompetency of the switchman, of which the company had notice. “If there is a proximate and discoverable cause which may have produced the injury, and which the evidence will warrant a jury in finding was sufficient for that end, it in no respect conduces to the defendant’s impunity, that another cause existed which was perhaps adequate to the production of the result.” (Brehm v. Great Western R. R. Co., 84 Barb., 261, 276.)

We think, therefore, that there ought to be a new trial of the case.

Hardin, J., concurred in the result; Smith, J., not sitting.

New trial granted, costs to abide event.