author: Vahu, J.

text:
    James B. O’Brien, Resp't, v. The Prescott Ins. Co., App’lt.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    Insurance (fire)—Waiver op condition by agent.
    An insurance policy issued in 1882 provided, among other things, that it should become void if the building became vacant unless consent in writing was endorsed upon the policy; that the company should not be bound by any statement made to or by any agent, not contained in the policy; that no part of the express conditions could be waived except in writing signed by the secretary. During November, 1885, the agent of insured called on the agent of the company “and informed him that the building was vacant, and inquired how it would be in case it burned;” the agent replied that it was all right as long as he notified the agent. In December the building burned; not long after the fire the insured transferred the policy to his son, the plaintiff herein. Held, that by agreeing that the secretary alone could waive the condition in the policy the parties necessarily excluded the agent from exercising that power, and that plaintiff could not recover for the loss.
    Appeal from a judgment of the general term of the supreme court in the third judicial department, affirming a j udgment entered on the report of a referee.
    This was an action upon a policy of insurance, whereby the defendant insured one Patrick- O’Brien against loss or damage by fire to his building in West Troy, used as a grocery store, meat market and dwelling, for the term of one year from January 3, 1882. The policy was continued in force by renewals until January 3, 1886. It was issued and countersigned by one Hulsapple, the agent of the defendant, who, “ as such agent, appraised the value of buildings on which the defendant was asked to issue policies of insurance, received applications for insurance, issued policies and renewals thereof, received the premiums in payment thereof, and in some cases adjusted losses, and transacted the general business of the defendant in the village of West Troy."
    The building so insured was partially destroyed by fire on the 28th of December, 1885, at which time it was not occupied and had not been since the middle of the preceding month. During November, 1885, the agent of the insured called on the agent of the company “ and informed him that the building was vacant, and inquired how it would be in case it burned. Said Hulsapple replied that it was all right as long as he notified the agent."
    Not long after after the fire occurred said Patrick O’Brien transferred the policy to his son, the plaintiff in this action. The referee found the foregoing facts, among others, and ordered judgment in favor of the plaintiff for the sum of eight hundred dollars besides interest
    Further facts appear in the opinion.

      A. H. Sawyer, for app’lt; John H. Gleason, for resp’t.

       Reversing 32 St. Rep., 579.

   Vahu, J.

The policy in question was issued "to the plaintiff’s assignor “subject to the folio wing terms and conditions: 1. Warranty of the assured. The assured by the acceptance of this policy hereby warrants that any application, survey, plan, statement or description connected with procuring this insurance or contained in or referred to in this policy, is true and shall be a part of this policy; * * * and this company shall not be bound under this policy by any act of, or statement made to, or by any agent or other person, which is not contained in this policy, or in any written paper above mentioned. * * * This policy shall become void, unless consent, in writing, is endorsed by the company hereon, in each of the following instances; * * * " if any building herein described be or become vacan tor unoccupied* for the purposes indicated in this contract.” Yarious other conditions follow in groups with appropriate headings, numbered from two to six inclusive, and at the end of all the conditions and just before the attestation clause is the statement that “ this policy is made and accepted upon the above express conditions, no part whereof can be waived, except in writing signed by the secretary.” The referee found that “ the building at the time of the fire was not occupied by any person for the purpose indicated in the policy cf insurance,” and that “ no written consent of any description was ever given by the company or its agent that such building might be or remain vacant or unoccupied.”

The stipulation in regard to occupancy was an express warranty, and unless it was either performed or waived, the policy became void. Halpin v. Phenix Ins. Co., 118 N. Y., 165; 28 St. Rep., 788; Herrman v. Adriatic Fire Ins. Co., 85 N. Y., 162. As it was not performed, the validity of the contract depends on whether it was waived, and the question of the waiver depends upon the power, actual or implied, of the agent who issued the policy for the defendant. The referee found, as a conclusion of law, that said agent “had authority to waive by oral consent any condition in the policy in question,” and that he did orally waive the warranty under consideration. The learned general term based its judgment of affirmance mainly upon the case of Pechner v. The Phœnix Ins. Co., 65 N. Y., 195, where it was held that a general agent, authorized to issue policies and write consents thereon, had power to bind the company by a paroi waiver of warranty against other insurance. In tliat case, however, there was no provision in the policy limiting the power of the agent, “ who testified, without contradiction, that he had issued hundreds of * * consents to further insurance.” (p. 208.) The courts below also relied upon Insurance Company v. Wilkinson, 80 U. S. (13 Wall), 222, where it was held that an insurance company is responsible for the acts of its agent within the general scope of the business entrusted to his care, and that no limitation of his authority, unless brought to the knowledge of the persons with whom he deals, will be binding upon them. Mr. Hulsapple was the general agent of the defendant at West Troy, and unless his .powers were expressly limited, and the insured had notice of the limitation, he will be presumed from the nature of his agency to have had power to modify the contract that he made, and to waive strict compliance with the conditions therein contained. While it does not appear that, except in this instance, he ever consented in behalf of the company that a building insured by it might be or remain vacant or unoccupied, the power to give such consent, in the absence of known restrictions upon his authority, may be fairly inferred from the powers that he habitually exercised. Whited v. Germania Fire Ins. Co., 76 N. Y., 415.

The policy had been in the possession of the plaintiff’s assignor for more than three years when the fire occurred, and hence, if the contract itself contains clear restrictions upon the power of the agent, the insured must be presumed to have had notice thereof. The provision that the company will not be bound by any act or statement not contained in the policy, application, etc., has no bearing upon the point in controversy, as it Mates only to acts done and statements made before the policy was issued, it is provided, however, that the policy shall become void, unless consent in writing is endorsed thereon by the company, if the building insured shall be or become vacant or unoccupied, and that the policy was made and accepted upon this as one of many express conditions, “ no part whereof can be waived, except in writing, signed by the secretary.” . This provision in regard to waiver applies to all the conditions preceding it, and not simply to those immediately preceding it, which relate only to “ proceedings in case of loss.” Upon reading all the provisions of the policy together it appears that the first part embraces the agreement of the company to insure the building in question for a certain amount during a specified period. This is followed by the agreement in behalf of the insured consisting of various “ terms and conditions,” under the following titles, viz.: £‘l. Warranty of the Assured," under which appears the condition relating to occupancy. Then follow in the order named : “2. Bisks not covered by this policy.” “3. Property not covered by this policy unless specified.” “ 4. General Privileges.” “ 5. Belative to issue and cancellation of policy.” “ 6. Proceedings in case of loss.” Under each title are different specifications relating to the subject thereof.

At the close of the last specification is the provision, said to have been printed in large type so as to attract attention, that “ this policy is made and accepted upon the above express conditions, no part whereof can be waived except in writing signed by the secretary.”

Thus it is evident that the parties agreed in terms, 1, that the policy should become void in case the premises became vacant or unoccupied unless the “ company ” consented in writing endorsed thereon; 2, that this condition could not be waived, except in writing signed by the secretary. Assuming that the provision relating to written consent, if it stood alone, might be waived by an agent possessing general powers, such a result cannot follow when the power to waive is taken away from the agent and conferred upon the secretary only. By agreeing that the secretary alone could waive, the parties necessarily excluded the agent from exercising that power. The apparent authority of the agent was thus limited by a restriction in the body of the policy, assented to by the assured as a' part of the contract and possessing the same binding force as any other provision therein contained. There was no usage, recognition or ratification to take the case away from the agreement as originally made. The attempt of the agent to waive by paroi was made years after the issue of the policy, and it was the duty of the assured to read his contract and conform to its provisions. By accepting the policy he assented to a limitation of the power of the agent. Having thus agreed, he was bound to know the extent of the limitation and act accordingly. The rule may be harsh in its application to a given case, but if insurance contracts are to be construed according to the language used in making them, in conformity to the principles governing the construction of other contracts, it must be applied in this case, which is thus brought within the authority of Walsh v. Hartford Fire Ins. Co., 73 N. Y., 5; and Marvin v. Universal Life Ins. Co., 85 id., 278.

The policy in the Walsh case contained a warranty against vacancy and a stipulation that no officer or agent should be held to have" waived any condition unless such waiver should be endorsed on the contract. On the day that the building insured became vacant a general agent of the company orally consented that it might remain so. When asked if it was necessary to have the consent endorsed upon the policy he replied that it was not. lie made a memorandum of the consent in his policy register, but made no endorsement on the policy or report to the company. It was held that there could be no recovery, because the oral consent was an act in excess of the known authority of the agent. The court said: “ That the agent was authorized to consent to the vacancy by a written endorsement on the policy is clearly implied from the language of the condition, and if the mode in which his consent should be made manifest had not been specified, or if no provision upon the subject had been contained in the policy, we do not doubt that he could have consented either orally or in writing and that his consent in either mode would have bound the company. * * * But the policy contains the jiro vision that no agent of the company shall be deemed to have waived any of the terms and conditions of the policy unless such waiver is endorsed on the policy in writing. This is a plain limitation upon the power of agents and can mean nothing less than that agents shall not have the power to waive conditions, except in one mode, viz.: by an endorsement on the policy. The plaintiff is presumed to have known what the contract contained and the proof tends to the conclusion that this provision was brought to his notice. He saw fit, however, to accept the assurance of the agent that an entry in the register was sufficient. It is difficult to see how, upon the law of contracts and agency, the plaintiff can recover. * * * The authority of an agent is not only that conferred upon him by commission, but also as to third persons that which he is held out as possessing. The principal is often bound by the act of his agent in excess or abuse of his actual authority, but this is only true between the principal and third persons who, believing and having a right to believe that the agent was acting within and not exceeding his authority, would sustain loss if the act was not considered that of his principal. If, however, a person dealing withean agent knows that he is acting under a circumscribed and limited authority and that his act is in excess of or an abuse of the authority actually conferred, then manifestly the principal is not bound and it is immaterial whether the agent is a general or a special one.”

In the Marvin case, supra, the plaintiff relied upon a paroi waiver of a certain condition by a general agent of the company. The policy contained a provision that any alteration or waiver of its conditions unless made at the head office and signed by an officer of said company,” should not be considered as valid. ' It was held that, although the agent had authority, unless restricted, to waive conditions, as his authority was limited by the provisions of the policy, and so brought to the knowledge of the assured, he had no authority to waive the condition or to agree that it should be waived. The court commented upon Pechner v. Phenix Ins. Co., and Ins. Co. v. Wilkinson, supra, and after quoting the rule laid down in the latter, as already stated, said : “The rule could not go further than this without violating all rule and justice. To carry it further would compel us in the end to say that insurance companies are wholly at the mercy of their general agents, and no-restraint is possible.” We regard these authorities as analogous and controlling, and we gave due effect to them in deciding the recent case of Messelback v. Norman, 122 N. Y., 578; 34 State Rep., 549.

In Steen v. Niagara Fire Ins. Co., 89 N. Y., 315, which is relied upon by the plaintiff, the powers of the general agent were not restricted. The court alluded to the Walsh case and others, and said that they were in favor of the company “ on the ground that by the terms of the policies in question the power of the agent was limited and the authority he assumed had been reserved bj the company to its officer, or was to be exercised only at the head office and authenticated by one of its officers. Such reservation is not to be found in the policy before us.” The court thus distinctly recognized the principle upon which this decision is based, but did not apply it, because the powers of the agent were not limited by the policy then under consideration.

After considering all the grounds upon which we are asked to affirm the judgment appealed from, we think that it should be reversed and a new trial granted, with costs to abide event.

All concur, except Landon, J., not sitting.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Emil Neuberger et al., App’lts, v. Henry G. Keim et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    1. Deed—By husband to wife—Effect upon subsequent creditors.
    A voluntary conveyance from husband to wife is good as against subsequent creditors, unless it was made with the intent to defraud such subsequent creditors; or there was secrecy in the transaction by which knowledge of it was withheld from such creditors, who dealt with the grantor upon the faith of his owning the property transferred; or the transfer was made with the view of entering into some new and hazardous business, the risk of which the grantor intended should be cast upon the parties having dealings with him in a new business.
    2. Same.
    On December 28, 1883, defendant, owning an interest in real estate in the city of New York of the value of $5,000, voluntarily conveyed the same through a third party to his wife, and the deeds were recorded. At this time defendant was engaged in business, and there was no proof that his liabilities exceeded the value of his properly. He had, however, had dealings with one S. for the purchase of a business similar to his own in Rochester, and in the course of the negotiations had stated to S. that he owned said real estate. On the 9th day of January, 1884, defendant and his wife visited 8. and agreed to and did purchase said business, and for the purpose of obtaining credit from 8. again stated that he was the owner of the said real estate, securing notes given by his wife’s endorsements. In 1885 he became insolvent, and p’aintiil's, as judgment creditors, endeavored to set aside the deed to his wife as being made in fraud of their rights. Reid, that plaintiffs had failed to establish their right to the relief demanded, as the conveyances were not secret, nor was it shown that th -y were made with a view of entering into a new and hazardous business, with intent of casting upon plaintiffs the risks of the dealings they may have with him in such business.
    Appeal from a judgment of the general term of the supreme court in the first judicial department, affirming a judgment entered upon a decision.

      David Hays, for app'lts; Arthur Furber, for resp’ts.

       Affirming 23 Rep.. St, 569.

   Haight, J.

This action was brought to set aside certain deeds on the ground that they were made with the intent to defraud creditors.

The defendant, Henry Gr. Keim, was the owner of an interest in certain real property situate in the city of New York of the value of about $5,000, and on the 28th day of December, 1883, he voluntarily conveyed the same to the defendant Kate Boiler, who on the same day conveyed the same to the defendant Mary A. Keim, the wife of the defendant Henry Gr. Keim, and which deeds were, on the 31st day of December thereafter, recorded in the office of the register of the city and county of New York, in Liber 1768 of Conveyances, at pages 163 to 165. At the time of these conveyances the defendant Henry Gr. Keim was engaged in the manufacture of flowers and feathers for the millinery trade, and was possessed of personal property consisting of stock in trade, fixtures, furniture, bills, notes, book accounts and the good will of his business, and there is no proof that his then liabilities exceeded the value of his property. He had, however, prior to such conveyance, had negotiations with one J. B. Sweeting, of Rochester, N. Y., for the purchase of his retail millinery business in that city, and in the course of such negotiations had stated to Sweeting that he was the owner of the real estate conveyed as aforesaid. On the 9th day of January, 1884, Keim and wife visited Sweeting at his store in Rochester and then agreed upon the terms of purchase, and on that occasion Keim, in the presence of his wife, for the purpose of obtaining credit, again stated to Sweeting that he was the owner of the real estate before mentioned. Sweeting, believing the representations concerning the ownership of the real estate, sold to Keim his stock of millinery goods in Rochester for the price of $9,500; $500 to be paid in cash, and $9,000 on a term of credit running nine years, secured by notes in part made by Keim, endorsed by his wife, and in part notes made by his wife and endorsed by himself. Keim took possession and carried on the business in the city of Rochester until the 15th day of June, 1885, at which time he made a general assignment for the benefit of creditors. In the meantime a fire had occurred in his store, destroying the greater portion of his stock of goods.

The plaintiffs are judgment creditors of Keim, and their judgments were recovered for goods sold and delivered to him, in the spring of 1885, for his millinery business in Rochester.

The trial court found as a conclusion of law that the deeds mentioned are good and valid conveyances as against the plaintiffs, and vested the title of the property in the defendant Mary A. Keim, and refused to find that Keim, at the time of executing the deed, was insolvent, or that he made the conveyance with the intent to hinder, delay and defraud his creditors in the business in which he was about to engage in Rochester, including the plaintiffs.

The representation made by Keim to Sweeting at the time of the purchase of the millinery stock in Rochester might be the subject of criticism and indicate a fraudulent intent to cheat and defraud him were it not for the fact that the notes given to secure the payment of the purchase price bear the signature of Mrs. Keim, the then owner of the real estate. It is not, however, important for us at this time to consider the relations existing between Keim and Sweeting, or of the liability of one to the other, further than to determine whether the transaction establishes an intent to cheat and defraud subsequent creditors. Sweeting is not a party to this action, and the liabilities upon which the plaintiffs have obtained their judgments were contracted more than a year subsequent to these conveyances. As to them there is no evidence that there was any representation made by Keim as to his ownership of real property to induce them to give him credit, or that they relied upon any such representation or appearance of ownership in giving him credit; neither is there evidence that the millinery business in which he was about to engage at Rochester was hazardous.

The rule we regard as well stated by Mr. Justice Brewer in the case of Schreyer v. Scott, 134 U. S., 411: “ It is evident that the rule obtaining in New York as well as recognized by this court is, that even a voluntary conveyance from husband to wife is good as against subsequent creditors; unless it was made with the intent to defraud such subsequent creditors; or there was secrecy in the transaction by which knowledge of it was withheld from such creditors who dealt with the grantor upon the faith of his owning the property transferred ; or the transfer was made with the view of entering into some new and hazardous business, the risk of which the grantor intended should be cast upon the parties having dealings with him in a new business." See, also, Todd v. Nelson, 109 N. Y., 316, 327; 15 St. Rep., 270.

Applying this rule to the facts as found by the trial court, it is apparent that the plaintiffs have failed to establish their right to the relief demanded. The conveyances were not secret, for they were recorded in the office of the register on the third day after their execution, and it is not shown that they were made with the view of entering into a new and hazardous business with the intent of casting upon the plaintiffs the risks of the dealings they may have with him in such business.

It is claimed that the complaint was dismissed at the close of the plaintiffs’ case, and that it was in effect a nonsuit, and if there are any disputed questions of fact or inferences to be drawn therefrom which upon a jury trial would require the submission of the case to a jury, the judgment must be reversed, and our attention is called to the case of Place v. Hayward, 117 N. Y., 487; 27 St. Rep., 710.

In that case the complaint was dismissed, and the court considered the question as to whether the defendant had the right to retain in the judgment the statement that the dismissal was upon the merits.

In this case, after the plaintiffs rested, the counsel for the defendants moved to dismiss the complaint on the ground that the plaintiffs had failed to prove facts sufficient to constitute a cause of action. The court replied: “ I will not dismiss the complaint, but I say upon the evidence as it now stands I would not feel justified in finding that this conveyance in question was made with the intention of defrauding creditors.”

Both parties prepared findings and submitted them to the court The complaint was dismissed upon the merits. It appears to us that under these circumstances the case must be deemed to have been submitted to the court in such a way as to permit it to weigh the evidence, draw the legitimate inferences therefrom and determine the facts. The trial, as we have seen, was before the court, which was charged with the duty of determining the facts. It is quite different in a trial before a j ury. In such a case it is the province of the court to declare the law, and that of the jury to determine the facts. We do not regard it as'necessary that a court charged with the duty of deciding the facts should be required to continue its sittings and take the evidence that the defendant may be able to produce when its mind is satisfied upon the close of the plaintiff’s case that under the facts disclosed the plaintiff ought not to recover.

We do not regard the conversation of Sweeting with Keim and wife in August, 1884, in reference to Mrs. Keim’s signature upon the notes, as material. If she had a desire to be relieved from liability upon the notes at that time it would not tend to establish the fact that she had an intent to defraud at the time they were executed.

The judgment should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    Grant B. Taylor, Resp’t, v. P. Elbert Nostrand, App'lt.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    Corporation—Liability of director for services rendered to—Principal AND AGENT.
    Plaintiff was directed by defendant, who was director, secretary and engineer of a water company, to procure contracts for lands for such company, pursuant to a resolution of the company, which also provided that the contracts should contain a clause as to liquidated damages. Subsequently he was directed by defendant to take such contracts in the name of one A, as trustee, and to omit such clause as to liquidated damages, for which direction no_ authority of the company was clearly shown. Held, that defendant in his directions to plaintiff so far exceeded his authority as to relieve such company from all liability to plaintiff for the services rendered, and became liable himself.
    Appeal from a judgment of the general term of the supreme court, second department, entered on an order affirming a judgment in favor of the plaintiff, entered on the report of a referee

      William S. Andrews, for app’lt; Grant B. Taylor, for resp’t.
   Parker, J.

The judgment under review awards to the plaintiff $754.71 for services rendered, and disbursements incurred, in procuring contracts for the purchase and sale of several parcels of real estate in the town of Highlands, Orange county, H. Y.

The value of the services rendered was not disputed, nor was the amount of the expenses incurred questioned, the defendant’s contention being that the Ramapo Water Company is plaintiff’s debtor, and not the defendant

The plaintiff’s position is that the defendant, while acting as agent for the Eamapo Water Company, in the directions which he gave to the plaintiff, so far exceeded his authority as to relieve such company from all liability to the plaintiff for the services rendered, and by reason thereof the defendant became chargeable-with the responsibility of saving the plaintiff from loss.

It is of course well settled that an agent who exceeds his authority in dealing with a third party may, through some form of action, be compelled to respond therefor. Sumner v. Williams, 8 Mass., 178; East Ind a Co. v. Hensley, 1 Esp., 112; Jones v. Downman, 4 A. & E., N. S., 237; Meech v. Smith, 7 Wend., 315; Feeter v. Heath, 11 id., 477; White v. Skinner, 13 Johns., 307; Baltzen v. Nicolay, 53 N., Y., 467; Paley on Agency, 386; Story on Agency, § 264.

Ho question has been made as to the form of the action at-any stage of the controversy, and its consideration is not required.

In a carefully considered opinion by Judge Selden in White v. Madison, 26 N. Y., 117, the conclusion was reached that the liability of the agent rests on the ground that he warrants his authority, not that the contract is to be deemed his own; and' on the question of damages it was held that the agent’s liability is not necessarily measured by the contract, but embraces all injury resulting from bis want of power, which was held to-include the costs of an unsuccessful action against the alleged principal.

Before referring to the facts which the plaintiff insists bring this case within the rule to which we. have, alluded, it may be-proper to observe that the respondent also insists that the judgment should be affirmed on the ground that the incorporation of the Eamapo Water Company has not been duly proven, but as we have concluded that the judgment should be affirmed on the ground already suggested, that question need not be passed upon and the case will be considered as if the incorporation were properly established.

Pursuant to a resolution adopted by the trustees of the Eamapo Water Company, an authorization for the defendant to act-as agent for the company in making certain contracts in the form following was made out and delivered to the defendant:

“ Hew York, Jan'y 15, 1889.

“Mr. P. Elbert Hostrand, of Brooklyn, H. Y, is hereby appointed agent of the Eamapo Water Company, for the purpóse of plaiting contracts on property on Stony Brook in Orange and Rockland counties, necessary for our purposes in accordance with .printed contracts furnished by the company.

“G-eo. A. Bvajsts, Pres.”

About the date of such authorization the defendant wrote the plaintiff, asking him to call and see defendant about “ our water matters." It appears that about a year before such writing the plaintiff had rendered professional services to the company, in the -course of which he met'the defendant and learned that he was connected with it as an officer or employee. Such services resulted in the purchase of a tract of land for the alleged use of the ■company, but the title was taken in the name of this defendant, whose personal check was given to the plaintiff for his compensation.

In compliance with the request contained in defendant’s letter the plaintiff called at the place designated, where he met defendant and one C. A. Lamont, who was also officially connected with the Ramapo Water Company.

At that interview he was informed that his services were desired in procuring contracts for the purchase and sale of certain lands in ■Orange county. He accepted the employment, and pursuant to the direction of the defendant and Lamont he performed all the •work required of him, and in the manner designated by them.

Subsequently he asked the defendant to whom his bill should be rendered, and was directed to present it to the Ramapo Water Company, which he did about the 1st of March, 1889, but the ■company neglected to pay the bill or take any action indicating nn intention to pay it. This action was then commenced against the defendant, the plaintiff asserting that an action would not lie .against the Ramapo Water Company, because the contracts were not taken in the manner authorized by the company.

The authority for Nostrand to act declares that he is appointed an agent of the company “for the purpose of making contracts on property, * * * necessary for our purposes in accordance with printed contracts furnished by the company.”

The blank contracts referred to in the resolution of the trustees •do not appear in the record before us, but the referee has found that they provide “ for a bilateral agreement for a sale to and purchase by said company of real estate, and for the signing and sealing of the instrument by all the parties thereto; and contain a clause fixing and liquidating the damages to be paid by the party of the second part (the company), in case it failed to fulfil the contract."

The defendant, however, did not so instruct the plaintiff. On the contrary he directed him to take all contracts in the name of “ William S. Andrews, trustee; ” authorized him to leave out of several of them the clause relating to liquidated damages ; and to omit from all but one the signature and seal of the party of the second part.

These facts appearing, the defendant became burdened with the necessity of showing either an express authority on the part of the company to change the form of the contracts provided for in the resolution, permitting them to be taken in the name of “ William S. Andrews, trustee,” or its subsequent ratification of the acts of defendant in such respect.

This he failed to do. He claimed to have been authorized by Lamont, the “general agent and manager ” of the Ramapo Water Company. And Lamont asserted the right to direct the change, but no resolution or official action by the trustees in any form was presented purporting to confer upon him any such authority. On the contrary, Lamont testified that “ the taking of the contracts in the name of William S. Andrews, trustee, or individually, was never authorized by the Ramapo Water Company in any way except by myself, the fully authorized agent of the Ramapo Water Company.”

In the absence of evidence of official action by the board of trusteees conferring upon him any authority whatever, it will not be assumed from his mere assertion that he was “ the fully authorized agent ” of the company; that upon him had been conferred the authority to set at naught the directions contained in resolutions formally adopted by the trustees.

While it is true, as claimed lay appellant, that when an agent in the attempted execution of a power conferred exceeds his authority, ratification will be implied from slight acts of confirmation, the difficulty which now confronts him is that the burden of showing ratification rested on him. That burden he failed to meet, the referee finding that there is no proof that the contracts were ever submitted to or approved of by the Ramapo Water Company, and that no proof was given to connect Andrews in any way with the Ramapo Water Company, or to show authority for the use of his name in making the contracts.

The facte so far considered lead to the conclusion that the Ramapo Water Company could not be compelled to pay for the services rendered by the plaintiff in procuring contracts in tho name of “William' S. Andrews, trustee,” and we are now to-consider whether the appointment of the plaintiff by the Ramapo> Water Company "to make contracts for the purchase of lands operated to relieve the defendant from the claim now made against him for damages resulting from his misdirection of the plaintiff. The appellant contends that, being empowered directly by the company to act for it, he chose to obey the instructions of the defendant rather than the company, and must, therefore, bear the consequences resulting from acts done in excess of authority conferred by it.

If it were the fact that the plaintiff and defendant had equal authority in the premises, and each so understood it, and the plaintiff chose to follow the advice of the defendant, the appellant’s position would be well taken. Such was not the situation of the parties, however. Nearly a year prior to January, 1889, the plaintiff had rendered services for the company, which resulted in the taking of a deed for certain lands in the name of the defendant, and they were subsequently paid for by his check.

These facts led.the plaintiff to place reliance upon the defendant’s assertion of authority to represent the company in the taking of contracts for the purchase of lands, and, as we have already observed, the defendant did, in fact, have authority within the limits prescribed.

It does not appear that the defendaiit showed to the plaintiff the resolutions of the board of trustees, or the writing appointing the defendant as agent, so the plaintiff cannot be .charged with knowledge of the limitations surrounding his agency, and in that, respect, therefore, he could rely as he did, as against the defendant, on his representations as to the extent of his authority to act for the company.

It seems that the Ramapo Water Company had, by resolution, appointed the plaintiff an agent to make contracts covering a. portion of the territory embraced in the appointment of defendant, and the defendant insists that at the first interview with the' plaintiff he showed him the resolutions, together with the written appointment. While Lamont differs with him as to what took place, his testimony, to a certain extent, supports the defendant’s contention. The plaintiff, on the other hand, positively contradicts such testimony, asserting that he never knew of the resolution or saw the alleged written appointment until the trial. That at the first interview Nostrand opened a drawer and took out a paper, at the same time saying to Lamont, “ Shall I give Mr. Taylor an authority to act as our agent ?” And Lamont said, “ No, don’t do that now; we may want to form another company,n and Nostrand then put the paper back.

One Houston, who was also directed by the defendant to do-similar work, and whose employment the company had authorized by a resolution and written appointment substantially like that of the plaintiff, also testified that the resolution and writing-were not shown him b}r the defendant,» who testified to the contrary.

This testimony is referred to in order that the scope of the finding of the referee touching that subject may be properly estimated. He does not find that plaintiff saw at the first interview, or ever saw, the minutes of the trustees or the written appointment, but that the substance of the resolution was made known to him. His reliance therefore was not placed on the resolution, which it does not appear he ever saw, but on defendant’s statement of the substance of it, who then and afterwards asserted the right to give plaintiff directions as to what he should do, and to supervise his work in every detail.

It cannot be inferred from that finding, nor from the evidence which the record presents, that the plaintiff understood, or that, defendant intended he should understand, that he was to be guided by a resolution of the board of trustees in making contracts, but rather that he was to follow the instructions of the defendant, who was apparently responsible for his appointment, and who assumed and asserted the right to determine what property should be contracted for; how much should be paid for it, and to supervise generally every step taken.

The views expressed lead to the conclusion that the judgment Tendered was required by the facts found.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.

         Affirming 35 St. Rep., 333.


author: Lewis, J.

text:
    Orrin Patten, App’lt, v. Thomas Findley, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    .Ejectment—Boundary lines.
    In an action of ejectment it appeared that plaintiff’s and defendant's lands adjoined on three sides; that a dispute arose over the division lines; that a surveyor was employed who ran the lines so as to give defendant a strip of land on the easterly and southerly sides, and took a piece on the westerly side from him; that the parties agreed to abide by the survey and move their fences on the new line; that this was done on the easterly and southerly side, but that defendant would not move his part of the fence on the westerly side, and employed the surveyor to resurvey that side, which he-did and made the new line thirty feet west of his other survey, and defendant placed his portion of the fence on this line, whereupon plaintiff moved his portion of the fence back on the western line to its original position, and brought suit to recover the land lying between the old line and the new fences. Held, that plaintiff was entitled to recover.
    Appeal from an order made at the Allegany circuit on January 6, 1890, entered in that county, setting aside the verdict of the jury in favor of the plaintiff in an action of ejectment, and granting a new trial therein, with costs to abide the event of the action, upon the minutes of the court

      E E. & G. W.'Harding, for app’lt; H. EL Rélya, for resp’t.
   Lewis, J.

The parties were the owners of farming lands in the county of Allegany.

The lands of the plaintiff adjoined those of the defendant upon the easterly, southerly and westerly sides.

There being an uncertainty about the division lines, a dispute arose between the parties, and they made an agreement to employ a surveyor to run the lines, and Mr. Henry Shallies was employed for that purpose.

The lines of ,the survey of Shallies ran east and south of the easterly and southerly lines of defendant’s farm as theretofore occupied by him, giving to the. defendant a narrow strip of land upon the easterly and southerly side of his farm.

The lines run by the surveyor upon the westerly side of defendant’s farm, took from him a piece of land theretofore occupied by him.

Upon the completion of this survey, the parties agreed to abide by it, and arranged to move their fences upon the new line as thus established, and for that purpose divided the fences between them. They placed them upon the new line upon the easterly and southerly sides of defendant’s farm, and the plaintiff moved his portion of the fence upon the new line on the westerly side.

The defendant neglected and refused to place upon the Shallies line that portion of the fence upon the westerly side of his farm allotted to him.

The plaintiff served upon him a written notice to build this portion of that fence.

The land set off to the plaintiff upon the westerly side of the defendant’s farm deprived him of the use of a stream of water theretofore enjoyed by him.

After being notified to build his fence, the defendant again employed Shallies, and at defendant’s request the surveyor ran the westerly line along an old stone fence "that had been used as a line fence between the adjoining farms, and by this survey the line ran some thirty feet westerly of his first linn

The defendant thereupon placed his portion of the westerly fence upon this new line. After the removal of the fence upon the southerly side of defendant’s premises upon the line run by Shallies, defendant entered upon the land thereby assigned to him, and cut and carried away therefrom some hemlock trees. The plaintiff protested against the defendant’s building the westerly fence upon Shallies’ new line.

He testifies: “ I told him if he persisted in building the fence there and held the land on both sides of me I couldn’t stand it' I would sue him.

“I gave him to understand he could not steal that land away from me without letting me know it. I told him he could not hold the land on both sides of me; it was unreasonable’’

The plaintiff employed a Mr. Minard, a surveyor, to run the lines between the farms, and his survey ran along the old lines as the farm had been occupied before the Shallies’ survey, and the plaintiff thereupon placed his portion of the westerly fences upon the line as run by Minard, and brought this action to recover the lands lying in betweén the new fences and the old lines of the farm.

The defendant’s answer did not deny, the plaintiff’s title to the-lands claimed in the complaint, but denied that he wrongfully or unlawfully held the possession thereof from the plaintiff.

The plaintiff recovered a verdict, which was set aside by the-trial court upon the ground that the evidence failed to establish that the defendant ever entered upon the disputed lands upon the east side of his fifty acres, or ever exercised any dominion by overt act or by claiming the same, or ever refused to surrender the same, or denied the plaintiff’s right to possession.

The arrangement by which the easterly fence was removed so as to include in the defendant’s premises a strip of land upon the easterly side of his farm, the possession of which the plaintiff sought to recover in this action, was part of an entire agreement by the terms of which the defendant was to surrender a piece of land upon the westerly side of his farm.

He refused to carry out his agreement and surrender this part of the land.

It thereupon became his duty to at once surrender all that he had acquired under his arrangements with the plaintiff.

This he neglected to do, and the plaintiff, as he had a right to do, brought the action. The defendant could -not avail himself of the benefits secured to him by the contract, unless he was willing to perform upon his part; refusing to carry out the agreement, lie should have surrendered the possession of the premises acquired by him under the agreement.

He had no better right to the piece of land upon the easterly •side of his farm than a vendee would have under an executory ■contract to purchase the land, and when he refused to pay for it by surrendering the land assigned to the plaintiff upon the westerly side of the farm his possession of the land assigned to him upon the easterly side became tortious and he was not entitled to notice to surrender before bringing the action.

But if it should be held that he was entitled to notice we think there was sufficient evidence to justify the jury in finding that the plaintiff had in effect given such notice by the demands he made upon the defendant when he ascertained that the defendant was building his fence upon the second line run by Shallies.

We think the plaintiff made a case entitling him to the verdict which he recovered, and that it was error to set aside the verdict, ■and the order appealed from should be reversed.

The verdict as rendered by the jury was informal, but as the •order appealed from was not made because of any informality in the verdict, we do not pass upon this question but leave the plaintiff to a correction of the verdict by such action as he shall be advised to take.

The order appealed from should be reversed, with ten dollars •costs and disbursements of the appeal.

Dwight, P. J., and Macomber, J., concur.


text:
    Clarissa C. Lathrop, App’lt, v. Helen C. Lathrop et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

      1. Will—Construction—Trust estate.
    Testatrix by the fourth clause of her will bequeathed to her executors “ all moneys in bank and other personal property not heretofore disposed of, for the purpose of the payment by them of debts and to fulfill trusts contained herein; ” by the fifth clause she devised to her daughters H. and C., as tenants in common, share and share alike, certain land, and by a subsequent clause gave her executors " power to sell and convey, mortgage or lease said real estate, at their option, for the best interests of my estate.” “ Whenever a sale and conveyance shall be made of said premises,” A. was to receive $500 out of the proceeds, and H. and 0. the residue, "share and share alike, and all personal property not herein bequeathed.” Then came “ this restriction and direction I do wish observed as to O.’s portion; that is, that it be safely invested for her by my executors, and paid to or for her, as to interest, when collected from year to year, and the principal paid in instalments, as they shall deem proper and for her best interests,” and the executors were constituted trustees as to her share. Held, that C. took an undivided one-half of the real estate in fee, subject to a power of sale, mortgage or lease in the executors, and that if they exercise such power she would be entitled to the interest on the proceeds, and such portion of the principal as they might deem proper to give her, and that the proceeds of the personalty given her were to be held likewise in trust.
    3. Same—Testamentary powers.
    The power of sale given the executors by the will is authorized by §§ 74, 77 and 94 of the articles of the Revised Statutes relating to powers.

      Appeal from a judgment entered in this action on the 9th day ■of April, 1891, in the Monroe county clerk’s office, upon the decision of the court at the Monroe equity term in December, 1890.

      Shuart & Sutherland, for app’lt; John F.Kinney, for resp’ts.
   Lewis, J.

The purpose of this action is to obtain a construction of the will of Jemima W. Lathrop, who was the mother of the parties to the action. The> will was probated by the surrogate of Monroe county, July 28, 1890. The testatrix, by the second and third clauses of her will, disposes of some articles of personal property. The controversy is over the fourth, fifth and sixth clauses of the will. The material part of these clauses is as follows:

“4th. All moneys in bank and other personal property belonging to me, not bequeathed by the foregoing second and third provisions of this will, I give unto my executors hereinafter named as such, for the purpose of the payment by them of debts and funeral expenses, and to fulfill the trusts contained therein.

“5th. I give and devise unto my daughters Helen and Clara, as tenants in common, share and share alike, the premises known as Ho. 68, upon the east side of Jones street, in Eochester, to include all buildings thereon and fixtures. In every way they are to become equal owners, and to maintain all repairs and improvements, and each to have and receive one-half of the rents, issues and profits therefrom, and to contribute in the same ratio to all taxes thereon. Whenever a sale and conveyance shall be made of said premises and the purchase price realized to my two said daughters, I give from the said moneys five hundred dollars to my daughter Anne should she be then living. My wish is that no sale of said premises be made until after eighteen months from my decease, and no conveyance thereof shall be made earlier than said period, unless my daughters Anne and Helen concur in writing and deem the same feasible not only, but for the best interest therein under this last will.

“ 6th. I hereby nominate, constitute and appoint my daughters Helen and Anne the executors of this my last will and testament, and I do give them, or to the survivor of them, the power to sell and convey, mortgage or lease said real estate at their option for the best interests of my estate. From the proceeds of such sale, if necessary, they shall pay any balance of debts or funeral expenses not susceptible of being paid from my general personal estate not hereinbefore bequeathed.

“After deducting said $500 charged on said real estate in favor of Anne, the said Helen and Clara shall receive the remaining proceeds, share and share alike, also all personal property not herein bequeathed. This restriction and direction I do wish observed as to Clara’s portion; that is, that it be safely invested for her by my executors, and paid to or for her as to interest when collected from year to year, and the principal paid in instalments as they shall deem proper and for her best interests. For this last defined purpose I constitute Helen and Anne as trustees as relates to Clara’s said share of such proceeds.”

The testatrix died seized of the bouse and lot mentioned in the will, worth over and above the incumbrance thereon twenty-five-hundred dollars. She left a personal estate amounting to about two thousand dollars over all her debts and the expenses of administration.

Plaintiff's contention is, that there is no trust created by the-will over her share of the personal estate; and that she is absolute owner in fee simple of one undivided one-half of the real estate, subject only to the lien of the mortgage, and to the naked power of sale given by the will to the defendant executors; and that no trust is created by the will over her share in the proceeds of the sale of the real estate, if a sale be made; but that she will be entitled immediately upon the sale of the premises to her full share in the proceeds thereof.

The chief difficulty in construing this will arises from an inapt and somewhat careless use of words, and an unfortunate arrangement of some of its sentences and clauses. It is our duty to endeavor to ascertain the meaning and wishes of the testatrix, and give such construction to her will as will carry out her wishes, if possible.

“ If the plain and definite purposes of a will are endangered by inapt or inaccurate modes'of expression, and we are sure we know what the testatrix meant, we have the right, and it is our duty, to subordinate the language to the intention. In such a case the court may reject words, supply them, or transpose them, to get at the correct meaning.” Phillips v. Davies, 92 N. Y., 199.

It is apparent that it was the wish of the testatrix that her daughter Clara should have one-half of her estate, after payment of her debts and funeral expenses, the expenses of administration, and the bequest of five hundred dollars to Anne, which is made by the will a charge upon the real estate. For some reason satisfactory to herself, she did not wish to give Clara power'over the corpus of the estate. There is a clear devise in fee to Helen and Ciara of the'real estate, each to have one-half of the rents and profits, and to contribute equally to the payment of taxes, but this devise is made subject to a power of sale, mortgage or lease, which is given to the executors, to be exercised at their option for the best interests of the estate. Until such time as the executors shall exercise their power of sale, Clara is to receive one-half of the rents, etc., of the real estate. This right in Clara to receive one-half of the rents and interests is not inconsistent with the main purpose of the will, which is that she shall not be at liberty to dispose of the principal.

In giving construction to the part of the will relating to the personalty, no embarrassment arises on account of the statute of uses and trusts, for the statute has no application to that class of property. Cutting v. Cutting, 86 N. Y., 545.

Does the will create a trust in the executors in the. personal property ? As we have seen, by the fourth clause of. the will, all moneys in bank and other personal property not specifically bequeathed she gave to her executors for the purpose of payment of debts and funeral expenses, and to fulfill the trusts contained therein. Then follow the fifth and sixth clauses, disposing of the fee of the land, and giving a power of sale to the defendants. “ She then says Helen and Clara shall receive the remaining proceeds, share and share alike,” referring, obviously, to what remains from the sale of the real estate, and then adds, “ also all personal property not herein bequeathed.” But the next subdivision states “ this restriction and direction I do wish observed as to Clara’s portion; that is, that it be safely invested' for her by my executors, and paid to or for her, as to interest when collected from year to year, and the principal paid in instalments, as they shall deem proper, and for her best interests. For this last defined purpose, I constitute Helen and Anne as trustees as relates to Clara’s said share of such proceeds.”

We think the testatrix intended, by the use of the word portion, to include the proceeds of both the personal estate and real estate. If, however, she used it in a restricted sense, and intended thereby to refer simply to her portion of the personalty .as distinguished from the proceeds of the sale of the land, reading the fourth clause inconnection with this subdivision, it must be held, we think, that she intended to create a trust in the personalty.

The testatrix, in language that cannot be misunderstood, makes Helen and Anne trustees of Clara’s portion of the proceeds of the sale of the real estate, as will be seen at the close of the sixth clause.

We agree with the learned'counsel for the appellant, that their client took, by the will, the fee to the undivided half of the real ■estate, with the right to the rents and the possession thereof; incumbered, however, by the power given to the executors to sell, mortgage or lease the same, and when they shall exercise the power of sale, and pay the five hundred dollars legacy to Anne, they become trustees of the balance of the proceeds, and thereafter, Clara, instead of receiving the rents and profits of the real estate, she will be entitled to the interest from year to year received from her portion of the proceeds of this real estate, as well as the interest on the investments of the personalty, with such portions of the principal as in the judgment of the trustees she may need, from time tó time. This power of sale given the executors by the will is authorized by §§ 74, 77 and 94 of the articles of the Bevised Statutes relating to powers.

Section 74 provides, “A power is an authority to do some act in relation to lands or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform.”

Section 77. “A power is general, where it authorizes the alienation in fee by means of a conveyance "x" * * to any alienee whatever.”

Section 94. “A general power is in trust, when any person or class of persons other than the grantee of such power is designated as entitled to the proceeds or any portion of the proceeds or other benefits to result from the alienation of the lands according to the power."

“A trust-to sell lands and divide the proceeds among the cesiuis que trust, as beneficiary owners, and not as creditors, is void as a trust, but is valid as a power in trust.” Seldeñ v. Vermilyea, 1 Barb., 58.

Our conclusions are that the defendants are by the will given the power to sell the real estate, and are made trustees of the proceeds remaining after paying the devise of five hundred dollars to Anne; and that they are made trustees of the personalty ; and this leads to an affirmance of the judgment.

Judgment affirmed.

Dwight, P. J., and Macomber, J., concur.


author: Dwight, P. J.

text:
    Henry H. Fults, App’lt, v. Wilbur Paul, Adm’r of Erwin Paul, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Fraudulent conveyance—Knowledge of grantee—Evidence.
    In an action by a creditor to reach real estate conveyed by defendant G. to the defendant-F., his son, and by the latter to E., brother of G., the referee found that the deed from G. to F. was given and accepted with intent to defraud plaintiff, and was void as to him. Defendant E. testified on his direct examination that there were forty-two acres in the farm, and that it was worth $20 per acre, and that he paid F. “ so much” and was to take care of his father till he came back. On his cross-examination he testified that the farm was worth no more than $20 an acre, that he was informed there were forty acres in it when ho took the deed; that he agreed to pay F. $1,000 and to pay G. the rest; that no time was specified in which he was to care for G.; that that was the consideration of the deed; that he did not agree to give $20 an acre; that he did not agree to give $1,800, but $1,200 or $1,300 in all. And on his re-direct examination he testified that F. owed him $500, and he gave F. a note for $500. On his examination in supplementary proceedings he testified that he paid about $3,000 for the farm; that he paid F. $1,000, all in cash except what F. owed him; that he did not remember how much F. owed him; that he was to pay the balance to G. as he wanted it. Held, that the evidence did not-support the finding that defendant E. purchased in good faith.
    Appeal by the plaintiff from that portion of a judgment, entered In Steuben county, on the report of a referee, which dis- ' missed the complaint as to the defendant, Wilbur Paul, as administrator, etc., with costs.

      J. F. Dorihy, for app’lt; J. W. Dininny, for resp’t.
   Dwight, P. J.

The action was a creditor’s bill to reach real estate, consisting of a small farm, conveyed by. the defendant , George Paul to the defendant Frank Paul, his son, and by the latter to Erwin Paul, the brother of George. Erwin Paul was made a defendant in the action, and answered as such, but died after the. evidence was taken and pending the decision- of the referee, and Wilbur Paul, as his administrator, was substituted for him as defendant. The referee found that the deed from George to Frank was given and accepted with intent to hinder, delay and defraud the creditors of the former, particularly the plaintiff, and was void as to the plaintiff; but that the deed from Frank to Erwin Paul was accepted by the latter in good faith and for a valuable consideration paid by him, and without any intent to hinder, delay or defraud the plaintiff or any creditor of George Paul, and without any notice or knowledge of any fraudulent intent on the part of Frank or George Paul, or of any fraud rendering the title of Frank Paul void. Judgment was directed and entered accordingly, adjudging the deed from George to Frank fraudulent and void as to the plaintiff, but dismissing the complaint as to the defendant Wilbur Paul, as administrator, etc.

We are not satisfied with the findings, nor with the disposition of the case, in the respect last mentioned. The deed from George to Frank being fraudulent and void, it'became necessary for Erwin, in order to maintain his title as the grantee of Frank, to show affirmatively, and by satisfactory evidence, that he was himself not only a purchaser in good faith, without fraudulent intent on his own part and without notice of the fraudulent character of the title of his grantor, but also for a valuable and sufficient consideration actually paid or parted with by him, on the faith of the apparent title of his grantor, and before he had notice of the fraudulent character of that title. An examination of the record before us leads to the conclusion that the findings of the referee in the respect last mentioned are not supported by the evidence, and that the exceptions of the plaintiff to those findings, and to the refusal of the referee to find in that respect as requested by the plaintiff, were well taken.

The case on the part of Erwin Paul rests upon his own testimony, a part of which was given on the trial of the action and a part in proceedings supplementary to execution taken by the plaintiff. The testimony thus presented is full of inconsistencies, ■contradictions and evasions, and is very unsatisfactory, especially on the question of consideration for the deed to him. On his direct examination in the trial of the action, he testified that there were forty-two acres in the farm, and that it was worth twenty dollars per acre, and that he paid Frank “ so much ” and was to take care of his father till he came back. On his cross-examinatian, he testified that the farm was worth no more than twenty dollars an acre; that he was informed there were forty acres in it when he took the deed ; that he agreed to pay Frank $1,000 .and to pay George the rest; that he was to take care of George till Frank came back, no time specified; that that was the consideration of the deed; that he thought the price was fixed at twenty dollars per acre; that he had not figured up how much the farm would come to at twenty dollars an acre; that he did not agree to give twenty dollars an acre when he bought it he considered it worth twenty dollars an acre; that he was to pay Frank $1,000 and take care of his father until he came back; that he did not agree to give $1,800, but $1,200 to $1,800 in all. And on his redirect examination he testified that Frank owed him $500 and he gave Frank a note of $500.

On his examination in supplementary proceedings he testified that he never saw Frank’s deed and knew nothing about his having a deed except what Frank told him. That he paid in the neighborhood of $2,000 for the farm; that he paid Frank $1,000, all in cash except what Frank owed him; that he did not remember exactly how much Frank owed him, that it was about $300' and he paid $700. in cash; that he paid Frank that sum before he went off; that he was to pay the balance to George and he wanted it along ; that he agreed to pay $1,800 for the farm provided he should pay George as he needed ; that he considered the farm worth $1,800, what he gave for it; that he gave Frank a note when he bought the place, for about $500, due in five years, and $200 in money; that the $500 note had not been paid; that he heard before he took the deed that Frank bad given a life lease to his father and mother; that he furnished provisions and support for George Paul and his family, in this way; he rented the farm on shares and George was to have his (Erwin’s) share to live on. He also testified that he had heard that George was indebted to the plaintiff before he bought the farm; that be heard that George endorsed the note to Fults about the time he took the deed; that he knew they got a horse from Fults and turned out the McTamery note for it. This was the note on which the plaintiff recovered a judgment which is the basis of this action.

There is but little more of the testimony of Erwin Paul which is at all material to this action, and none which relieves it, as a whole, from the effect of the apparent contradiction and prevarication which characterizes that recited above. It is unnecessary to argue that testimony of- this character does not support the affirmative of the issue of good faith and full consideration, which was laid upon Erwin Paul as the grantee of a title which was. void in the hands of his grantor.

The judgment must be reversed and a new trial granted.

So ordered, with costs to abide the final award of costs.

Macomber and Lewis, JJ., concur.


text:
    The County of Orleans, Resp’t, v. Mary E. Winchester et al., Def'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Criminal law—Jurisdiction of villag-e police justice.
    A warrant issued by a police justice of a village, who is given by its-charter the same powers as justices of the peace, for an offense committed within the village, may he executed by a peace officer any where within-the county, and the fact that the defendant was arrested outside of the village will not deprive the justice of jurisdiction.
    Appeal by the defendant, Ira H. Watson, from a judgment of the supreme court, entered in the office of the clerk of the county of Orleans, on the 8 th day of June, 1891.

      H. B. Dayton, for app’lt; Whedon & Ryan,' for resp’t.
   Lewis, J.

The defendant, Mary E. Winchester, was arrested September 1, 1890, on a warrant issued by Morgan L. Brainard, police justice of the village of Medina. The warrant, and the deposition upon which it was issued, charged her with the crime, committed within the village of Medina, of being a disorderly person, contrary to the provisions of the charter of the village.

The village of Medina was incorporated by chapter 39 of the Laws of 1874, as amended by several acts subsequently passed. The arrest was made in the town in which Medina is situated, but outside the territorial limits of the village.

The defendant Winchester was placed upon trial, and the case being adjourned, she as principal, and the defendant Ira D. Watson as surety, executed an undertaking to the people of the county of Orleans hi the penal sum of $200, conforming substantially to .§ 738 of the Code of Criminal Procedure, conditioned that the defendant should appear at such police court from time to time until judgment; she failed to appear upon the adjourned day, and the police justice declared the undertaking forfeited, and this action was commenced against the defendants to recover the amount of the penalty of the bond.

A verdict was rendered for the plaintiff for the sum of $200, and judgment was entered against the defendants, and this appeal was taken from the judgment by Watson and his contention is, that the arrest having been made outside of the village of Medina, the police court did not acquire jurisdiction to try the defendant, and hence had no authority to require the execution of the bond.

Concededly the police justice had jurisdiction of the subject matter of the offense, and had the arrest taken place in the village of Medina, his jurisdiction would not be questioned.

The charter of the village provides for the election of a police justice, and declares that he shall possess the same powers and authority in all criminal proceedings as justices of the peace in the several towns of this state. His jurisdiction is limited to offenses committed in the village. Complaint having been made to him as police justice against the defendant for violation of the village charter, he issued a warrant in proper form, directed to any peace officer of the county of Orleans, directing the arrest of the defendant. The peace officer, who had authority to execute warrants in any part of the county, arrested the defendant outside of the limits of the village. The defendant was at the time a resident of the village.

A police justice is a magistrate having power to issue a warrant for the arrest of a person charged with a crime.” Sections 146 and 147 of the Code of Criminal Procedure.

Section 155 of the Code of Criminal Procedure provides that if a warrant be issued by a justice of the supreme court, or judge of the superior court, or court of common pleas, or a recorder, city judge, or judge of the court of general sessions in the city and county of Hew York, or by a county judge, or by a judge of the city court, it may be directed generally to any peace officer in the state, and may be executed by any of those officers to whom it may be delivered. It is provided by § 156, that if it he issued by any other magistrate, it may be directed generally to any peace officer in the county in which it is issued, and may be executed in that county ; or if the defendant be in another county it may be executed therein, upon the written direction of a magistrate of such other county endorsed upon the warrant, etc.

The language of § 156 is sufficiently broad to give to Mr. Brainard authority to issue a warrant to be executed throughout the county of Orleans ; and while it has been held in a number of cases that the legislature has not the power, under the constitution, to give to these local officers jurisdiction beyond the limits-of the city or village in which they are elected, we are not aware of any authority holding that a criminal warrant issued by a police justice of a village or city may not be executed within the-county outside of the limits of the city or village.

The place of arrest is not the test to apply in determining the-power and jurisdiction of the cour-t to hear and determine the guilt or innocence of the defendant; but it is the place where the offense was committed which confers the jurisdiction. The question is, not as to the constitutionality of a law conferring jurisdiction upon the court to hear, try and determine the guilt of the defendant of the offense charged, but rather, as to the constitutional power of the legislature to authorize the police magistrate of a city or, village, and other local magistrates specified in the Penal Code, to issue a warrant for the apprehension and arrest of a person charged with crime within their county, and to direct and authorize any peace officer of the county to make the arrest anywhere within the county. The charter of Medina does not limit the power of the peace officer to execute the warrant. The legislature has, from time to time, clothed officers not possessing' judicial powers with the power to issue warrants for the arrest of offenders. Such authority has been given to aldermen and mayors ; the prisoner, when arrested, is required to be taken, however, before a magistrate having judicial powers for examination or trial.

The defendant was a resident of Medina; she committed the-crime there; under the advice of her counsel, with a v-iew to raising the question, she left the village, and was found by the officer and arrested outside of the village limits and taken before the police magistrate. Her counsel failed to raise the question of the jurisdiction of the court to try the defendant. The trial proceeded and it appears from the record that an adjournment was had byconsent of the defendant, and the undertaking was thereupon given. The doctrine contended for by the appellant would necessarily lead to great inconvenience and absurd results. If after committing the offense the criminal steps outside the village limits, some other official beside the police justice must be applied to for a warrant. When the offender is secured, he must be taken before the police justice for examination or trial. We are not prepared to assent to "this doctrine.

Warrants issued by police magistrates of cities and villages have been, ever since the courts were created, executed in the counties outside of the limits of the city or village, and we are not aware of any adjudicated case where the question was presented holding that they cannot be thus éxecuted.

We are referred by the appellant’s counsel to several authorities, where, in the opinions of the court, language is used which may be claimed to sustain the appellant’s contention ; but upon an examination óf the cases, it will be found, that the question here presented was not before the court for decision.

In the case of the People v. Terry, 108 N. Y., 1; 12 St. Rep., 773, the defendant was charged with committing a crime in the village of Canton. He was, so far as the case shows, arrested in the village; hence the question here presented was not before that court

In the case of Landers v. Staten Island Railroad Company, 53 N. Y., 450, it was held that the process issued out of the city court of Brooklyn could not be served outside of the city of Brooklyn. In that case, the cause of action arose, and the process was served, in the city of New York, so that the court had not jurisdiction of the subject matter.

It was held in the case of the International Bank v. Bradley, 19 N. Y., 245, that in an action where the cause of action arose in the city of Buffalo, a summons issued out of the superior court of that city could be served upon a party outside of the limits of the city. The case was decided when the superior court was not a constitutional court, and its jurisdiction was limited to causes of action arising in the city, unless the process was served upon the defendant in the city.

We think the police court had jurisdiction of the defendant, and of the proceeding, and had power to accept the undertaking given by the defendants.

We have examined the question raised by the appellant as to the form of the bond; while it is somewhat informal, we think it, substantially conforms to the form of undertaking provided by the Code of Criminal Procedure.

The judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.