source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    Lydia A. Glasier, Resp’t, v. The Town of Hebron, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Negligence—Defective town highway—Proximate cause.
    Plaintiff was driving along a town highway, seventeen feet wide, drifted with snow, when she met hays driving a sleigh loaded with coal barrels. At this point the hank of the highway was steep, without a fence and descending abruptly eight feet to a pond. She stopped and waited for the boys to pass; as they did this a barrel slipped off their sleigh, and frightened her horse which backed off the highway into the pond. Reid, that the fright of the horse and the absence of a fence were both proximate causes of the accident, and as the town was liable for the latter, plaintiff could recover.
    2. Same—Contributory negligence.
    There "was some evidence that the boys stopped at a point beyond the dangerous place, and told the woman to come on. To a request that if this was so, it was her duty to pass there, the court replied that the question was whether she acted as a person of ordinary prudence would have done. Held, sufficient.
    3. Same—Duty of town.
    The defendant urged that it was not hound to erect a barrier. The court left it to the jury to say whether the road was dangerous at that point. Held, correct.
    4. Same.
    The fact that an accident is rare or unforeseen is not a defense.
    5. Same—Statutory liability of town.
    The defendant requested the court to charge in effect that if the action could not have been maintained against the commissioner of the town, it could not be maintained against it. Held, properly refused. That it appears from §§ 1 and 3 of ch. 700, Laws of 1881, that there may be cases where the town itself maybe liable for negligence, where the commissioner is not; e. g., where it neglects to make repairs which it should have made, or does not furnish funds therefor when it is able to do so.
    6. Same—Evidence—Photograph.
    The admission in evidence of a photograph of the locus in quo, taken after a fence had been erected, is not error, where the court stated that the subsequent erection of such fence was not evidence of negligence.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Edgar Hull (J. S. L'Amoreaux, C. H. Sturges and L. H. Northup, of counsel), for app’lt; J. M. Whitman (Potter & Lillie, of counsel), for resp’t
   Learned, P. J.

A highway in Hebron runs for some eighteen rods by the southerly side of Eeed’s pond, and from the road there is a steep descent to the pond. For much of the distance there are trees and shrubs along the bank. On the 24th of March the plaintiff was driving along this road and had reached a place-where, for about twelve feet, there were no trees along the bank. At this point she saw, at a distance of some thirty feet, an approaching vehicle. It consisted of two bob-sleighs with some boards laid across, on which were two barrels of coal, and it was drawn by one horse. Two boys were in charge of it As she saw them they were at the horse’s head arranging the harness. She stopped; and they said they would be along in a minute. She said all right, and waited for them. Just as the boys with their horse and sleigh reached the plaintiff and turned out to pass, one of the barrels slid off, against, or in front of, plaintiff’s horse. He became frightened and backed her cutter down the-bank, and she with the horse and cutter fell into the pond, breaking through the ice. The plaintiff was injured by the accident, and the conseq uent exposure, and sues for damages.

There is some disagreement between her account and that of the boys. They say that they called to her to come on, while they stood. But this is immaterial. The jury probably accepted her account; and at any rate there is no proof that she did not, exercise her best judgment as to the place where the two vehicles-would pass.

The great snow storm, called “the blizzard,” occurred about ten-days before. Since that the snow had melted and frozen, so that the snow or ice upon the roadway was slanting. Thus probably it happene that as the boys turned out on the upper side their sleigh tipped enough to cause the barrel to slide off. The plaintiff was on the northerly side of the road, that nearest to the pond. There was no fence or other protection on the side of the road next to the pond. From the roadbed, which was about seventeen feet wide, there was a slope downwards of about eight feet, with a drop of about four feet, and from that a nearly vertical drop of about four feet to the water. It can readily be seen that as the plaintiff’s cutter was necessarily near to the edge of the bank, her horse in backing would probably soon get the rear of the cutter over the edge of the bank, and then the result which followed would be almost inevitable.

The first point urged by defendant is that the absence of a guard or rail at the bank was not the proximate cause of the injury; that such cause was the falling of the barrel of coal.

The object of having a rail or guard put up at the side of a road in such a place is, of course, to prevent travelers and vehicles from falling down the bank. It is not simply to indicate that there is a bank at the place. It is evident that when, in daylight, a person is driving a horse, not disturbed by any exciting cause, along such a place, there is hardly any danger even if there be no rail or barrier at the side. The rail then is especially to protect travelers when some f right makes a horse deviate from the ordinary track, or when darkness prevents a traveler from seeing, or when some unexpected cause puts him in danger. Experience has shown that unforeseen causes may expose the traveler to the danger of being thrown down such a bank. Hence it is proper to erect a barrier. And whether or not we call the cause which may produce such danger proximate, still that is the kind of danger against which those who have charge of the road should guard by the means above mentioned. The rail is put up because it is known that such danger will occasionally happen. To neglect to put it up is culpable.

Of course all the surrounding circumstances contribute to produce any result under consideration. Hence it is not always easy to assert any one to be the sole cause. If the pond had not been there the plaintiff would not have been wet. H she had stayed at home she would not have been hurt. If the horse had not been frightened he probably would not have backed, and so on.

There is some conflict in the cases in different states on questions similar to the present, but it seems to us of little use to discuss them, when the highest court in our state has laid down a rule which must be controlling with us. In Ring v. Cohoes, 77 N. Y., 83, the court of appeals, after referring to the decisions of other states, say: “When two causes combine to produce an injury to a traveller upon a highway, both of which are in their nature proximate, the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect” That language was applied to a case where the plaintiff’s horse became frightened without his fault and ran into a hydrant. There was also a pile of ashes which obstructed the street. The referee had found that both the ashes and the hydrant were culpable defects. The court of appeals held that the hydrant was not a defect, but that the ashes might have been. The two causes which the court spoke of as combining to produce the injury were the fright of the horse and the defect in the street. These they spoke of as “ in their nature proximate.” That case is quite analogous to the present. For here are the two causes, the fright of the horse and the defect in the highway, which may be called proximate; and it may be correctly said that these combined to produce the result.

The case of Lowery v. W. U. Tel. Co., 60 N. Y., 198, has no application. The question there was whether certain damages were too remote from the negligent act to enhance the recovery. ¡Nothing of that kind arises here. If the defendant is liable for the negligence, there have not been any damages allowed which were not the immediate result of the accident.

¡Nor is this a case where a new cause has intervened between the result and the alleged cause, as in the well-known case of the squib. Scott v. Shepherd, 2 Wm. Black., 892. In that case, however, though the principle was recognized, it was held not applicable.

It seems to us that a remark of Mr. Justice Miller in Ins. Co. v. Tweed, 74 U. S., 44, is very sound. After speaking of the numerous cases on proximate and remote causes he says: “If we could deduce from them the best possible expression of the rule, it would remain after all to decide each case largely upon the special facts belonging to it, and often upon the very nicest discrimination.” And so we think that this case must be decided. We are to inquire whether the defendant was negligent and whether the plaintiff was careful, and then whether the accident which she suffered was the result of the defendant’s negligence.

It was left to the jury to say whether the plaintiff was negligent. The defendant asked the court to charge that if the boys stopped at a point, outside of the path, where it was safe for her to pass and she saw it, it was her duty to have passed at that place. But the court left that to the jury to be considered on the point whether she acted as a person of ordinary prudence would have done. This was correct. Lent v. N. Y. C. & H. R. R. R. Co., 120 N. Y., 467 ; 31 St. Rep., 538. The defendant cites Ryan v. Man. R. R. Co., 121 N. Y., 126; 30 St. Rep., 624. The point there decided was that the court should have charged, under the proof, that if the space between cars and platforms was not more than eight inches, defendants were not negligent. That was not a question of contributory negligence, but a question whether, under the proof, eight inches could be held to be proper. The point in this case is very different. A traveler seeing another approaching on a road drifted with snow has to exercise his judgment as to the best place for passing. All that he is required to do is to act as a prudent man would do. A misjudgment is not negligence. Nor is there any evidence here that the plaintiff did not judge wisely.

Certainly the plaintiff was not responsible for the fright of the horse. She did not anticipate that the barrel of coal would slide off. And the whole question of her alleged contributory negligence was properly left to the jury.

The defendant further urges that it was not bound to erect a barrier at this point The court submitted to the jury the question whether the road at this point was dangerous, and whether a person of ordinary prudence would have considered it dangerous. The verdict of the jury on this point must stand, unless it can b@ said, as matter of law, that it was not the duty of the town to guard the place.

The defendant cites Hubbell v. Yonkers, 104 N.Y., 434; 5 St. Rep., 730. There the street was thirty feet wide, macadamized, and in good condition. There was a sidewalk on the west side ten feet wide, with a curbstone eight inches high. On the west side of that sidewalk there was an embankment twelve feet deep, with no railing. The court of appeals held that there was no lack of care in not fencing the embankment. The width of the road and the sidewalk with its curbstone were held to be a sufficient protection. But the court is careful to distinguish this from the cases of a road passing along a precipice. “ Those are cases where the roadway itself runs along such a place, and danger from the want of a railing was naturally to be apprehended.” In the present case the road was seventeen feet nine inches wide. The plaintiff had to turn out towards the pond in order to pass the other vehicle. The beaten road was not then more than three feet from the edge of the bank. It might, therefore, well be submitted to the jury to say whether danger from the want of a railing was not to be apprehended. And as a railing could be built for seventeen dollars, the negligence of defendant was still more apparent

The defendant urges that the accident was one of a class so rare, unexpected and unforeseen that the defendant could not be charged with negligence. The particular cause by which this horse was frightened may have been unexpected. But it is not rare or unexpected that horses shy or are frightened from some cause. And because this kind of event is not unexpected, such places as the one where plaintiff was injured should be protected.

One Getty had been commissioner of highways for three years prior to March 6, 1888. On that day Wilson was elected. Plaintiff’s accident happened on the 24th of that month. The defendant asked the court to charge that if the action cannot be maintained against the commissioner in office bn the 24th of March it cannot be maintained against the defendant. The court refused. The meaning of the request is probably that if the action could not, as the law was prior to chap. 700,. Laws of 1881, have been maintained against the commissioner, .it cannot be maintained against the defendant

Section 1 of that chapter is as follows: “ The several towns in this state shall be liable to any person suffering the same for all damages to person or property by reason of defective highways or bridges in such towns, in cases in which the commissioner or commissioners of highways of said towns are now liable therefor, instead of such commissioner or commissioners of highways.” It will be seen by this last clause that the liability of the towns is substituted for that of the commissioners, and is not additional. Section 3 is important in construing this act: “ If the defect in such highway or bridge shall have been caused by the misconduct or neglect of the commissioner or commissioners of highways in the town in which the same may be situated, then, and in such case, the town against which any judgment shall have been recovered by reason of such defective highway or bridge may bring an action against such delinquent commissioner or commissioners of highways to recover the amount of such judgment.” If a judgment is recovered against a town, then there must have been not only a defect, but also negligence in some one. And this section implies that there may be cases in which the defect is not caused by the misconduct or neglect of the commissioner, and yet in which the town maybe liable. For it says: “If the defect shall have been caused, etc.,’’thus indicating that there may be cases where judgment may be recovered against the town for its own neglect. Turning then to the first section we see that towns are liable in cases in which the commissioners were liable before. Those cases were when they neglected to make repairs of defects which they ought to have known, and for which they had or could obtain the necessary means. These then are the cases in which towns are liable; that is, when they neglect to make repairs of defects which they know, or ought to have known, and for which they have or can obtain the necessary means. If the neglect is that of the commissioner, he is liable to the town; if it is the neglect of the town, he is not

As to the matter of knowledge, the knowledge of the former commissioner must be treated as the knowledge of the town. The failure to provide necessary funds may be the neglect of the town. Ivory v. Deerpark, 116 N. Y., 476; 27 St. Rep., 643. This statute to a considerable extent has placed towns in this respect in the position of villages and cities. We think there was no error in refusing to charge as requested.

If the town by withholding funds from the commissioner can free the commissioner from liability, and then escape liability itself because the commissioner was blameless, the statute has left the injured traveler remediless.

An exception was taken to what was said to Getty, the commissioner, about the condition of the road That was proper as tending to show notice.

There was no error in the admission of the photograph of the place, although it was taken subsequently, and after a fence had been erected. The court stated that any subsequent change was no evidence of negligence.

The judgment and order are affirmed, with costs.

Landon and Mayham, JJ., concur.


text:
    Lydia A. Clark, Resp’t v. Maria MacDonald et al., App’lts (2 Actions.)

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

      1. Pabtnebshif—Fbaudulent conveyance.
    A partner retired from an insolvent firm and sold her interest to the partners remaining, the latter agreeing to pay the firm debts. Thereafter she conveyed without consideration premises to her daughter who held them for her. Held, that the conveyance was void as to firm creditors.

      2. Same—Intent.
    If a creditor is in fact defrauded it is not material under 3 R. S., 137, §1, whether the grantor had or had not an intention to defraud that particular person.
    3. Same—Costs.
    Where a plaintiff brought two actions upon two several judgments to reach the same property and said actions were tried as one, and plaintiff succeeded only as to a portion of the property attacked, Held, that she might be allowed her costs of both actions.
    Appeal from judgments, entered upon reports of a referee, de-claring certain transfers of real estate and personal property fraudulent and void as against the plaintiff.

      W. C. Maxwell (John L. Henning, of counsel) for app’lts ; C. S. Nisbet and W. L. Van Denbergh, for resp’t.
   Learned, P. J.

These are appeals by defendants from judgments on the report of a referee.

The actions rise out of the transactions which were the subject of controversy in McDonald v. McDonald, 33 St. Rep., 39. And these actions, like that, were brought by a judgmenter editor to set .aside conveyances alleged to be fraudulent

The plaintiff sought to recover the Main street property, as to •which the referee reported in favor of defendant, the Spring street ■property, the annuity contract, and the bank stock, as to all of which the referee reported in plaintiff’s favor.

The conveyances were made by Maria Mac Donald, the judgment debtor, to her daughter Carrie S. Mac Donald. Carrie S. Mac Donald made certain conveyances of this property to one Lillie S. Stevenson. But there is no attempt on this appeal to claim that Lillie S. Stevenson acquired any better title than Carrie '3. MacDonald had. We need only refer to what was said by this court in the former case as to the attempted conveyances by Carrie •8. to Lillie S. Stevenson. The testimony given by Lillie S. Stevenson in the former case was read in this. The referee came to the same conclusion in regard to her pretended title with that of Mr. Justice Fish in the former case. • And his conclusion is unquestionably correct.

The only question of importance then is whether these transfers and conveyances to Carrie S. were valid against the plaintiff.

In 1871 the firm, of I. C. Shuler & Co. was composed of Isaac C. Shuler, Maria MacDonald, and Augustus Clark. It so continued till 1883, when Clark’s interest in the business, being three-tenths, was bought by Maria MacDonald and Shuler, and they gave thereupon a note of $5,000 to the plaintiff, Clark’s wife, on. which note the judgment in the first suit was recovered. The-judgment in the second suit was also on notes amounting to-$1,075, made by said Maria MacDonald and said Shuler.

In 1888 Maria MacDonald sold out to Shuler. He agreed to-pay her an annuity of $800 a year for three years (which is the annuity contract) and Shuler agreed to pay all the partnership debts. The referee refused to find that the firm were then solvent and that Shuler had considerable property outside of the firm.

The three notes above mentioned are stated in the referee’s opinion to be firm notes of I. C. Shuler & Co.

.The counsel for the appellant seek to distinguish these cases from that above referred to on the ground that these were firm debts ; that Maria MacDonald had reasonably provided for their payment by her transfer of her interests in the firm to Shuler and by his agreement to pay these debts ; that she had thus become a quasi surety, and Shuler the principal debtor, and that, under these circumstances, the voluntary transfer of her property, to her daughter should not be held fraudulent.

Of course, unless the firm was in fact solvent or Shuler had property outside, there was nothing in the agreement which gave-plaintiff any protection. And in any event plaintiff acquired no additional security. When Maria MacDonald w-ent out of the firm, Shuler and the firm property were already liable ; and his agreement to pay the firm ' debts was only a matter between himself and the outgoing partner. Even if Shuler had at that time property outside of the firm, that property was already liable-for his debts. So that in. no way did Maria MacDonald, when she went out of the firm, increase the plaintiff’s security. It is further evident that the prosperity of the firm had fallen off largely before this time.

It is well settled under our statute that in such cases the question of fraudulent intent is generally one of fact. The referee finds as a fact in this case that the several transfers were made with intent to hinder, delay and defraud plaintiff, and were accepted by Carrie S. with the distinct understanding that she was to hold and manage the same for said Maria MacDonald.

And we see no reason to doubt the correctness of this conclusion. The transfers were without consideration, and they transferred all the property of Maria MacDonald. Carrie S. herself says she took this property to manage it for her mother and is managing it for her. This is plainly not a case of a gift to a child, reasonable in amount compared with the property of the parent.

The appellants claim that even if Maria MacDonald transferred this property to Carrie S. with intent to defraud some creditors, yet the transfers were not void as to the plaintiff because she was (as they claim) secured by Shuler’s agreement to pay them. We have already seen that she was not, in fact, secured by this agreement and that it was of no benefit to her. But, in any event, the statute does not say tho*t an assignment made with intent to defraud creditors shall be void as to those whom the assignor-intended to defraud, or as to those who have no security whatever. That would be a very lame statute. The statute is that the assignment is void “ as against the persons so hindered, delayed or defrauded.” 2 E. S., m. p. 137, § 1. If one makes an ■assignment with intent to defraud creditors, it is void as to a defrauded creditor, although he was not in the mind of the assignor. The creditor thus actually defrauded by the act of the debtor is not to be deprived of his rights to reach what is truly the debtor’s property by an assertion on the part of the debtor that lie supposed that that creditor could collect his debt in some other way and that Ilo was only endeavoring to defraud some other creditors. The appellants in this case say : “ True, these transfers were made with intent to defraud creditors; but Maria MacDonald was not thinking of this plaintiff, and, indeed, supposed that Shuler would pay her; therefore, although the plaintiff is actually defrauded and unable to ■collect her debt, yet the fraudulent assignee shall keep the property from this insolvent debtor.

An assignment with intent to defraud creditors cannot stand as .against any creditor who is thereby defrauded; whether the intent was specially to defraud him or not, and whether or not he may have a right to sue some other person for the debt. For the thing assigned in such a case is not rightfully the property of the assignee, but as against creditors of the assignor is still the property of the assignor.

Of course the fact that Shuler had agreed to pay these debts was a circumstance, with all the other circumstances, to be considered on the question whether the transfers to Carrie S. were made with intent to defraud creditors. But on this question of fact, on the intent of Maria MacDonald and Carrie S., we think the referee found correctly. He could hardly have found otherwise.

The appellants urge that as the plaintiff did not succeed in re■spect to the Main street property the referee should not have ■allowed costs against them in each action. Ho appeal is taken by the plaintiff in respect to the judgment as to this Main street property. Yet there are circumstances which cast suspicion on the conveyance of that property. It was without consideration. The deed was not recorded for four years. Taxes, etc., were paid ■out of Maria’s money. Fortunately for the defendants the referee decided that the conveyance was not with intent to uefraud creditors. But we think that the defendants’ success in that respect -does not make their position so meritorious that they should escape paying costs.

Judgment affirmed in both cases, with costs against defendants personally.

Landon and Mayham, JJ., concur.


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    Thomas J. Hagadorn, App’lt, v. John W. Hart, Sheriff, et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Equity—Foreclosure—Deficiency judgment.
    One John Hagaclorn died and left a will hy the residuary clause of which he left certain real estate equally to his two sons, Wilbur S. and the plaintiff Thomas J. He had no debts. He owned four mortgages-against a farm in another county belonging to Wilbur S., upon only the first of which Wilbur S. was personally liable. His executor foreclosed and' sold in October, 1866. Enough was realized to pay the first mortgage, but the avails were applied on the other mortgages. The executor entered a deficiency judgment against Wilbur S. upon the first mortgage, ayd in January, 1887, he sold the interest of Wilbur S. in the premises in question to Thomas J., the plaintiff, thereby partially satisfying the deficiency judgment. Judgment creditors of Wilbur S. prior in time to the deficiency judgment attempted to sell the interest of Wilbur S. in said premises, when Thomas J. brought this action to restrain them. Held, that the action could not be maintained, and equity would not interfere; that whatever may have been the reason for failing to apply the proceeds upon, the foreclosure sale to satisfy the first mortgage given by Wilbur S. to-John Hagadorn, that transaction could not be used to prevent the judgment creditors of Wilbur S. from reaching his interest in the lands now held by Thomas J.
    2. Same.
    As John Hagadorn had no debts one-half of the mortgages held by him. against Wilbur S. would, under the residuary clause of the will, have passed, to Wilbur S., and no reason for a foreclosure was apparent.
    3. Same.
    The plaintiff did not stand in the position of an executor attempting to-set off against a legacy a debt due the estate of his testator.
    Appeal from judgment dismissing the complaint, with costs.

      J. H. Clute, for app’lt; W. L. Norton, for resp’ts.
   Learned, P. J.

This is an appeal "by the plaintiff from a jxxfigment dismissing the complaint on the merits upon a trial "before the court without a jury. The action was brought to restrain the-sale of certain premises under two executions against "Wilbur S. Hagadorn, in the hands of the defendant Hart, asshei’iff of Albany county. The plaintiffs in the judgments in which the executions were issued are parties defendant.

John Hagadorn died March 8, 1885, having previously made-his will. By this will, after a devise to his wife for her use and for the benefit of two minor children," he gave and devised all the-rest of his property, after payment of debts, to his two sons Wilbur S. Hagadorn and Thomas J. Hagadorn, the present plaintiff, to be equally divided between them, share and share alike. The-testator was seized in fee at his death of the premises described in the complaint, situated in Albany county. These are not the-premises devised to the wife. They passed under the residuary clause above mentioned, to Wilbur S. and Thomas J. The two-judgments above mentioned were duly recovered and were docketed in Albany county, one on February 19, 1886, the other on February 28, 1886.

John Hagadorn at the time of his death held four mortgages-on a farm belonging to Wilbur S. Hagadorn, in Schuyler county. These were foreclosed by Tanner, the executor of John Hagadorn"swill, and a judgment of foreclosure was entered, June 22, 1886, for $20,002.75. The premises were sold under that judgment, October 15, 1886, "for $7,250. Wilbur S. was personally liable-only on the first of these four mortgages; and a judgment for deficiency was entered against him in that action in favor of the-executor for $6, 823.25, the amount of that first mortgage; which judgment was docketed in Albany county, November 22, 1886. Thus the avails of the foreclosure sale must have been, in some unexplained way, applied to the mortgages other than the first. No reason for this is given. On that judgment for deficiency the executor issued an execution, and by virtue thereof the sheriff of Albany county, on the 13th of January, 1887, sold the interest of Wilbur S. in the premises described in the complaint, for about $3,000, to Thomas J. Hagadorn, the present plaintiff. A sheriff’s deed of the interest of Wilbur S. in said premises was duly executed to the present plaintiff, and was recorded July 7, 1888, and the present plaintiff went into possession.

The sheriff returned said execution satisfied as to $3,008.45 and unsatisfied as to $3,814,85 ; which last sum remains unpaid. The present plaintiff now seeks to prevent the judgment creditors aforesaid of Wilbur S. from selling the interest of Wilbur S. in said premises on their execution, although their judgments were docketed several months prior to the docketing of the judgment under which he obtained his title. The plaintiff’s claim is that the judgment in favor of the executor of John Hagadorn had a preference in equity, so far as affects any property which came to Wilbur S. from, the estate of said John.

The plaintiff seeks to establish a priority contrary to the statute, on the ground of equity. One objection to this arises on the very judgment under which plaintiff claims. There were four mortgages on the same property; all foreclosed in the same action. Wilbur S. was liable personally only on the first. The avails of the foreclosure sale were, of course, first applicable on the earliest mortgage. So applied there could have been no deficiency against him. By what right the avails were otherwise applied we do not see. If by Wilbur’s consent, then he consented to a judgment against himself when there was no indebtedness. It would be inequitable that he, or the executor, should use such a judgment as an equitable ground of depriving honest creditors of their legal liens. The transaction may have been intended for -some such purpose.

There is another difficulty. It does not appear that John Hagadorn owed any debts. If this were so, then, on a division of the residue of the estate, one-half of the mortgages held by the estate against Wilbur’s farm would go to Wilbur himself. The same would be true if there had been enough other property to pay the debts. Why, therefore, a foreclosure should have been had is not apparent.

But it is urged by the plaintiff that the interests of Wilbur S. in the land inherited are subject to the debt owing by him to the estate. We have already seen that there was no valid debt owing by him to the estate after the foreclosure sale. And even if there were, the plaintiff bought, according to his own position, only Wilbur’s interests in the land. That is just what the defendants, judgment creditors, desire to sell; and they have the prior liens. The plaintiff is no better off than any other judgment creditor. He does not stand in the position of the executor attempting to set off a debt against a legacy. If the executor had any such right, he did not transfer it when he sold under judgment and execution all the interests of Wilbur S.

The plaintiff cites the well known doctrine that a debt due the testator from a legatee is to be applied in satisfaction, so far as may be', of the legacy. But that has no application here. The executor held a claim against Wilbur S. to the amount of the first mortgage. He did not attempt to set that debt off against any legacy. On the contrary he collected • the debt and received full payment by the foreclosure sale. There was then nothing to set off. And even if the plaintiff urges that the judgment of deficiency, improperly obtained, shows a debt owing by Wilbur S. to the estate, which may still be set off against Wilbur's share in the devised land, still the plaintiff, as the purchaser on the sale under the judgment, has no right to insist on this set off as against other judgment creditors intending to sell the same land and having prior liens thereon.

We are not here to consider any possible questions between Thomas J. Hagadorn, as devisee of an undivided interest in the testator’s estate and Wilbur S., or some person who may have acquired Wilbur’s undivided interest in the same land. That is not before us. We may, however, refer to the case of Smith v. Kearney, 2 Barb. Ch., 533, 549. There it was held, that while the right of the executor is well settled to retain part, or the whole of a legacy in discharge of a debt owing from the legatee, yet that this rule did not apply to the proceeds of real estate descended to the debtor from the creditor.

The real estate in that case was not converted into personal by the will of the testator. Its conversion was accidental. Much more strongly then it might be said that the rule did not apply, to real estate not converted at all. But as above stated, that question is not before us. The plaintiff insists that a debt not in judgment owing the testator at his death from one of the devisees is a lien on the devise as against a judgment recovered against the devisee. We see no authority for such a doctrine. The title to land devised or descended passes at once to the -devisee or heir. It becomes subject to judgments recovered against the devisee or heir for his debts, and such judgments take priority according to the time of docketing. The case of Pierce v. Alsop, 3 Barb. Ch., 184, is quite similar in principle to the present case, and sustains the views we have above stated.

Judgment affirmed, with costs.

Landon and Mayham, JJ., concur.


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    Anna J. Clark, Resp’t, v. Theodore W. Todd et al., Ex’rs, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Executors—Claim for services rendered to testatrix.
    A servant made a claim against an estate for services rendered to testatrix. The services were rendered during a period of four years, during which time no claim was mope by the servant, although she and her mother lived ran t free in a house of the testatrix situated near by. The services were contested, were slight and intermittent. There was some evidence that the claimant was disappointed at the terms of the will of the testatrix. Held, that the court would not imply any promise to pay the alleged servant.
    Appeal from order of special term, setting aside the report of a referee and granting a new trial.

      Francis B. Delehanty, for app’lts ; John W. Mattice, for resp’t.
   Learned, P. J.

This is a claim against executors, referred under the statute.

Part of the claim, namely, twenty-five dollars, is for services rendered after the death of the testatrix. Such a claim does not come within the provisions of 2 E. S., m. p., 88, §§ 34, 85, 86. It is a claim against the executors personally and not against the testatrix. Tracy v. Frost, 32 St. Rep., 907; Ferrin v. Myrick, 41 N. Y., 315.

The residue of the claim is for personal services alleged to have been rendered by the claimant to the testatrix as a kind of friendly servant or nurse from August 20, 1886, to June 1, 1890, the day of the death of the testatrix, with three intervals, for which no claim is made, respectively of about two months, three months and ten months.

The claimant was not one of the household servants of the testatrix. There were two such employed in the house. The testatrix was a widow and had no family. She was the second wife of her husband. His first wife was aunt to the claimant.And the mother of the claimant lived free o£ rent in a house which had belonged to the husband of the testatrix, and which after his death belonged to the testratrix. The claimant lived with her mother, but paid no board, and did not contribute to the support of the house. The house is in the rear of the house of testatrix, three doors below. The testatrix by her will gave $100 to the claimant and $100 to her mother.

The testimony as to services rendered by claimant is given by her mother and by her aunt, Mrs. Fuller. Mrs. Fuller states that the claimant said that she was happier with Mrs. Perry, the testatrix, than with her mother, and that her mother’s house smelled so badly that the testatrix thought it was bad for her. Mrs. Fuller testifies that the claimant dressed the testatrix hair and gave her hot baths, aided her to the carriage and went on errands. The testimony of the mother is similar. Mrs. Fuller, however, says that she has often talked with the claimant about this claim; that she made a memorandum the night before giving the testimony ; that the claimant came to her and took care of her in 1885 or 1886, for which she never paid her. She refuses to show the memorandum and cannot state how many times she has seen the claimant bring meals and assist to the carriage.

The two servants in the employ of testatrix testified. One of them was there all of the time in question; the other nearly all. Ellen Flynn says that the claimant came there two or three times a week, for an hour or two, that she never gave the testatrix a bath or rubbed her or did anything for her. Once she was seen to comb tlie hair of the testatrix. That she never sewed quilts; that she once or twice went on errands.

Margaret Struthers, the other household servant, had never seen the claimant give the testatrix baths; had seen her combing the hair of testatrix several times and rubbing her a dozen times; had seen her make comfortables, and assist the testatrix in undressing and in getting up and out of her chair.

Mary H. King testifies that she knew the testatrix intimately; called two or three times a week; had seen the claimant come in the back way; go up stairs, inquire of testatrix how she was, stay a few minutes and go away; that the only tiling she ever saw claimant do was to rub testatrix, who suffered with rheumatism.

Upon the testimony of which a partial abstract has been given above, the referee decided in favor of the defendants as a matter of fact. The learned court at special term set aside the report and ordered a new trial, and the defendants appeal.

The testimony on behalf of the claimant comes from her near relatives. And certain expressions appear, showing that there is, as often in such cases, a disappointment as to the testamentary disposition of her estate by the testatrix. The mother of the claimant says she herself took care of the testatrix and got no pay ; that she supposed she was to have the house. And the claimant said she was sorry she had rubbed the testatrix, etc., because the testatrix had not remembered her.

Now these expressions show that the kind acts of the claimant and of her mother were done in the hope that their rich friend would be induced to give them a bequest or legacy. These acts therefore were gratuitous. The mother and her daughter were living free of rent in the house belonging to the testatrix and these acts of the claimant were but the suitable return for the home which the testatrix was thus affording them.

In view then of these facts it seems to have been a proper case in which the referee should weigh the testimony and decide thereon. As the witnesses for the claimant were her near relatives, he might take that circumstance into account and might give less faith to their statements than to those of the defendant’s witnesses, who seem to be disinterested.

In cases like this the question must be, was there any mutual understanding between the parties that the services were to be paid for. Such services are sometimes performed for friendship’s sake; sometimes to obtain the favor of the recipient; sometimes on a plain understanding that payment shall be made. Unless they come within the last class no debt is contracted. The friendly acts and kindnesses of near neighbors and connections, however frequently repeated, create no liability on which an action can be maintained. But it sometimes happens that dissatisfaction with the will of the deceased induces the kind neighbor to try to get pay for services which were rendered with a better motive. Courts should not permit this. And it is easy to understand the truth of the case. Of course we are to inquire as to the understanding of the parties at the time the services were rendered. When services are rendered and accepted with no thought at the time of compensation, it will not do, after the death of the recipient, to set up a claim that the services were rendered for hire. A claim which the claimant would not have ventured to make during the recipient’s life-time has no validity after her death.

When it is mutually understood that such services are to he paid for, and the recipient is abundantly able to pay, it is not common to allow four years to pass without presenting a bill. In such case, too, the services will be uniform. If there is to be a payment, the recipient of the services will require that they be regularly performed, and that they be not at the caprice of the person who is to be paid. In the present case the claimant is not shown to have ever presented a claim until after the death of the testatrix; and further, the so-called services seem to have been rendered just whenever she chose to come to the house of the testatrix, and to do these little favors which might naturally have been done by any friend. This is plainly a case in which the claimant acted either in gratitude for the home which she and her mother enjoyed, or with the less worthy motive of ingratiating herself into the favor of the testatrix, and obtaining a larger legacy than she in fact received. It is not a case of contract

The claimant’s counsel cites the case of Smith v. Railroad Co., 102 N. Y., 192 ; 1 St. Rep., 403. That was very different from the present. The railroad company had elected the plaintiff secretary. His predecessor had been paid a salary. The services were not nominal; and the referee found that he should recover their value. This the court of appeals affirmed. But here the claimant had no fixed employment in the house of the testatrix. Mor did she succeed to the position of one who had been paid wages. The referee on hearing all the proof found as a fact that she was not employed by the testatrix, and that she had rendered no services for which there was liability to pay.

It seems to us that this finding was correct and that the report should be confirmed.

Order reversed, and report confirmed and judgment ordered for defendants, with costs.

Landon, J., concurs; Mayham, J., not sitting.


author: Mayham, J.

text:
    Jennie Hochstrasser, App’lt, v. George B. Martin and Alvin C. Eaton, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Nuisance—Evidence—Decision of boabd of health.
    The decision and determination of a board of health upon an ex parte examination not in the presence of the defendants cannot bind or affect their interests, and is not competent evidence against them in an action to abate a nuisance.
    2. Same.
    Proof that a witness is a botanic physician, who has no license to prac tice, but had his medicines patented, is not sufficient to entitle him to testify as an expert that sickness was caused by the alleged nuisance.

      3. Same—Damage.
    While it is competent in such an action for the defendant to prove the rental value of plaintiffs premises as they were without the alleged nuisance, this should be done by showing the market value of their use, and not by the estimate that a witness may put upon the same for his own use.
    4. Same—Permitting—Charge.
    In such an action it is error to refuse to submit to the jury the question whether the defendants permitted their foul and refuse water to flow' on plaintiff’s laud. Permuting a nuisance to exist, which was caused by the person creating it, is a repetition of the nuisance.
    The plaintiff prosecuted this action for an alleged nuisance in maintaining and using a bam on the lands of the defendant Martin, occupied by the defendant Baton, from which the defendants caused or permitted water used by the defendants in washing wagons on the premises to leak through manure heaps suffered to accumulate thereon, over and above the premises of the plaintiff, causing offensive and unwholesome odors upon his premises and in his dwelling, and in the complaint asked that the defendants be enjoined and restrained from continuing such nuisance, and asked judgment for damages.
    The answer was in substance a denial, but admits the ownership and occupancy by the defendant of the premises, as set forth in the complaint, and alleges that the barn therein referred to has been upon such premises for over fifty years.
    On the trial the justice formulated two interrogatories which he submitted to the jury, both of which the jury answered in the negative. On which findings the defendants moved for judgment, and the court, adopting the findings of the jury, gave judgment for the defendants. The plaintiff moved for a new trial upon the minutes, which was denied, and now appeals from the judgment and order denying a motion for a new trial to this court.

      E. F. Bullard, for app’lt; John Foley, for resp’ts.
   Mayham, J.

The appellant insists that the judgment should be reversed on the ground of the rejection of evidence offered by the plaintiff on the trial..

The plaintiff’s husband, while being examined, testified that be made complaint to the board of health. He was then asked this question : “ What did the board decide in regard to it ? ” This question was objected to by the defendants, and before any ruling was made by the court the plaintiff made the following offer: Plaintiff offered to prove that the health officer refused to interfere and stated that the public had nothing to do with it, as it was a matter of private damage.

The court sustained the objection and excluded the evidence, to which plaintiff duly excepted.

We see no error in this ruling by the court. The decision and determination of the board of health upon an ex parte examination not in thé presence of the defendants could not bind them or affect their interests and was not competent evidence against them.

It could neither confer a right of action upon the plaintiff nor deprive the defendant of any ground of defence and when objected to by the defendants was properly excluded.

bTor do we see that it was error for the court to exclude the opinion of this witness as to the cause of the illness of his son. It-was objected to on the ground that that inquiry was not within the questions raised by the pleadings and not proper on the question of damages, and also that the witness was not competent to give the opinion asked for.

We think the objection well taken on the latter ground. There was an allegation of special damages for sickness of the plaintiff’s son, under which proof, if competent in other respects, might have been admissible. But there is no proof in this case that the witness was qualified to give the opinion called for by the question. The only evidence of the qualification of the witness to give the opinion asked for was his statement that he was a botanic physician, that he had no license to practice but had his medicines patented,- and had a right to sell it anywhere.

That evidence does not show, or tend to show, that the witness had any special knowledge in reference to the causes of disease. After proving, as above indicated, all of the knowledge, or sources of knowledge, of the witness bearing upon his skill as an expert, the plaintiff asked this question : “ In your judgment would such a smell in your yard, as it was at the time your son was taken sick, have a tendency to produce such a sickness?” This question was objected to by the defendant on the ground, among others, that witness was not competent, and that objection was sustained, as we think, correctly, for the reasons above stated.

The plaintiff also objected to evidence tending to prove the condition of the plaintiff’s premises. The witness Waterbuvy was permitted to answer, under the plaintiff’s objection, that on account of the filthy condition of the plaintiff’s henyard on plaintiff’s premises he would not live there if it was given to him. The precise question, in answer to which this evidence was given, does not appear, but we are left to the inference that it was testimony called for by some appropriate inquiry, especially as the answer was not disclaimed by the defendant, but the testimony retained after objection by the plaintiff, which the case shows was taken in due time.

The defendant insists that the evidence was harmless, especially as it was the manner adopted by the witness in expressing his estimate of the rental value of the plaintiff’s premises without the existence or effect of the alleged acts or omissions of the defendant. We cannot agree with the defendant in this conclusion. It was, doubtless, competent for the defendant to prove the rental value of the plaintiff’s premises as they were without the alleged injury to them by acts or omissions of the defendant. But it should have been done, if at all, by competent evidence. The rental value of premises may be estimated by a witness and testified to, but it must be the market or merchantable value of the use of the premises arid not the estimate that the witness may put upon the same for his own use.

To the individual witness who may have no use for the article, the value of which he is asked to estimate, it may be valueless, while in the general market it may be valuable, and hence the inquiry always is confined to market value. The inquiry upon this subject should have been confined to the rental value with and without the alleged nuisance, and that should be estimated by what it would rent for, and not by the estimate that the witness would put'upon it for his own use. Francis v. Schoellkopf, 53 N. Y., 152 ; Van Buren v. Water Works Co., 50 Hun, 448 ; 21 St. Rep., 438; Barrick v. Schifferdecker, 48 Hun, 355; 16 St. Rep., 449.

The appellant also insists that the learned trial court erred in not submitting to the jury after the word “ caused ” in his second proposed question for the jury the words “ or permitted ” upon the request by the plaintiff, which the court refused, and to which refusal the counsel for the plaintiff excepted.

If the amendment proposed by the plaintiff’s counsel had been adopted by the court the question would have read as follows : “ Did the defendants by any improper or unreasonable use of their barn lot cause or permit foul or refuse water drainage to flow on plaintiff’s land so as to depreciate its value ?” If the defendants by any improper or unreasonable use of their barn lot permitted the refuse water drainage to flow on plaintiff’s land so as to depreciate its value, it is difficult to see why they would not be liable. Permitting a nuisance to exist which was caused by the person creating it is a repetition of the nuisance. In Brown v. Cayuga & Susquehanna R. R. Co., 12 N. Y., 492, Denio, J., says: Every continuance of a nuisance is in judgment of law a fresh nuisance.” But in this case, under the question as submitted and from the charge of the learned judge, the jury might well have inferred that the continuance of the conditions injurious to the plaintiff furnished no ground of action, and unless they found that the defendants caused it the plaintiff was remediless. This, we think, was restricting the inquiry of the jury within too narrow limits, and the court in adopting the findings of the jury must be held to have been restricted in the same manner. In the case above quoted the same learned judge added: “But I am of opinion that an action on the case will lie against one who continues a nuisance by which damage is occasioned to the plaintiff without notice first given to remove it.”

In this case some question was raised as to the exercise of the equitable power of the court to compel a defendant to abate a nuisance without a request made to abate the same. But no such question can arise in the case at bar, as the uncontradicted evidence is that a request was made of both defendants before the commencement of the action to abate the alleged nuisance. We are of opinion that the error referred to in the admission of evidence and the erroneous refusal of the learned judge to submit to the jury the question as to whether or not the defendants permitted the existence of the alleged nuisance may have improperly prejudiced the rights of the plaintiff, and that for these reasons the judgment should be reversed.

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

Learned, P. J., and Landon, J., concur.


author: Landon, J.

text:
    The People, Resp’ts, v. Orson M. Wilson, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Municipal corporations—Ordinances—Streets.
    Provisions in a city charter to the effect that the common council should have the powers of commissioners of highways with power to lay out, make and open streets; cause the same to be graded, paved or repaired and prescribe of what materials, “ and for the purposes of exeucting the powers conferred * * the common council shall have full power to make, establish * * * ordinances,” authorize the passage by the common council of an ordinance prohibiting any one from drawing or transporting a load weighing from two and a half to five tons over any macadamized, paved or top dressed street in a vehicle having a tire less than four inches wide on its wheels.
    2. Same—Proof of ordinance.
    The city clerk testified that he knew the wide tire ordinance and produced a copy thereof, with certificates attached, certifying to its passage, record, correctness and due publication, which iwas received in evidence without objection. Held, a sufficient proof of the ordinance and its record.
    3. Same—Proof of weight of load.
    One who has handled blues tone and been in that business'for twenty years, and has seen the load in question, is competent to testify as to the weight of a load of bluestone rubbish.
    4. Same—Evidence of violation.
    Proof that defendant was seen with his load on the avenue in question and on the same day was seen with his load on another street is sufficient to prove that he was drawing or transporting the load over said avenue.
    Appeal from a judgment of the Ulster county sessions, affirming judgment of conviction and sentence of the defendant by the recorder’s court of the city of Kingston.

      William Lounsbery, for app’lt; G. D. B. Hasbrouck, for resp’ts.
   Landon, J.

The defendant was convicted before the recorder of the city of Kingston of the violation of an ordinance of the city prohibiting any person from drawing or transporting a load or burden weighing from two and one-half to five tons over any •macadamized, paved or top dressed street of the city in any vehicle having a tire less than four inches wide on its wheels.

The defendant urges that the charter of the city does not authorize the making of such an ordinance. The power is not expressly conferred, but the charter, chap. 150, Laws 1872, § 91, provides that “ The common council shall have the powers and discharge all the duties of commissioners of highways in said city,” and are vested with power “ To lay out, make and open streets ” -* * * “and cause the same to be repaired,” § 93. “ To cause any street * * * to be graded, paved or repaired,” § 98, and to prescribe “ of what materials.” Section 100. “ It shall be the duty of the superintendent of streets * * * under and subject to the control of the common council, to act as overseer of highways, and take general supervision and charge of all highways and streets.” Section 51. “ And for the purposes * * * of executing powers conferred upon the common council or upon the city by this act or otherwise, the said common council shall have full power to make, establish * * * ordinances.” Section 33, subd. 51.

The specific grant of powers for the making, grading and repairing streets, and for their care and superintendence, coupled with the power to make such ordinances for the purpose of executing such powers, vests in the common council the power to make such ordinances as shall be reasonable for the purpose. It is reasonable to protect paved streets from being crushed and ruined by loads of enormous weight borne upon vehicles with wheels of narrow tires, which cut through the pavement, when a broader tire will bear the load without causing such injury. It is reasonable that the carrier of heavy loads should so exercise his own rights as not injuriously to affect those of others. Such an ordinance was upheld in People v. James, 16 Hun, 426, and we concur in the views there expressed upon the subject.

The charter requires that an ordinance “ shall be published at least twice in the two newspapers published in said city, designated for such purpose by the common council, before it shall take-effect.” The city clerk testified as follows: “Am city clerk, and was so during the year 1890 ; it is my duty to keep the minutes of the common council; know the wide tire ordinance (a copy produced and recognized, and put in evidence, marked A.)” Exhibit A consists of a copy of the ordinance with such certificates appended thereto, made by the city clerk, certifying to its passage, record, correctness, and due publication, as the charter requires to be entered of record upon the minutes or records of the common council, which “record or a copy thereof, certified by the clerk of said city, shall be presumptive evidence in all courts and places * * of the due passage of such ordinance, * * *■ and of its having been duly published.” Section 33, subd. 51. The criticism that the certificate presented was not a certificate of a copy of the record, but was the certificate which should be entered of record, and that the whole record itself or a certified copy of it should be produced, would, undoubtedly, be valid, if the ordinance had not been proved by common law evidence. The city clerk as a witness produced what we may assume was a transcript of the record, and it was read in evidence without any objection or question.

The record contained the statutory certificate of the due publication of the ordinance. The statute makes the record itself proof of the passage and publication of the ordinance. The record may be proved like any other fact by common law evidence. Secondary evidence is admissible. at common law, unless objection is made to that mode of proof. None was made here, and hence-the record was competently proved by producing and reading a copy of it

The weight of the load of blue stone rubbish was shown by the testimony of a witness who testified that he had handled blue-stone and been in the blue stone business for twenty years, that he saw the load in question; he gave an estimate of its dimensions, and testified that in his judgment its weight was about four tons. The objection was taken that the opinion of the witness was not competent ■ or proper. We do not think the objection tenable. Under the circumstances it seems to have been the best evidence obtainable. Clearly the witness was qualified to make an approximate estimate; that is to say, he knew something about the weight of that load, and knew more than the inexperienced observer. There was no other way in which he could express more accurately what he knew respecting its weight, than by giving his opinion or estimate o£ it. It was competent for him to testify to what he knew and to do so in the most accurate form in which he could express it. Quantities, values, times, distances, and other measurable subjects, must often be measured in this way because no better exists. Collins v. N. Y. C. & H. R. R. R. Co., 109 N. Y., 243; 14 St. Rep., 783; Harpending v. Shoemaker, 37 Barb., 270; Smith v. Gugerty, 4 id., 614; Townsend v. Brundage, 6 Thomp. & Cook, 527; McDonald v. Barton, 1 id., 12.

A witness testified that he saw the defendant on Union avenue with his team of horses and wagon, having on the load of blue stone rubbish; and another witness testified that he saw him on the same day with the load on another street. This testimony is criticised as not showing that the defendant was “ transporting, carrying or drawing the load over ” Union avenue. To conclude from this testimony that the defendant transported the load over the street on which he was seen with it is a reasonable and not a violent inference. We do not think the other objections require comment

The judgment should be affirmed.

Learned, P. J., and Mayham, J., concur.


text:
    John M. Holmes, App’lt, v. The Union Telegraph & Telephone Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Telegraph companies—Negligence.
    It is not incumbent upon a telegraph company to look after and keep in position the wires of a messenger service which have been strung on its poles without its affirmative consent, and it is not liable for injuries caused to third persons by the negligence of the messenger service in permitting its wires to fall and remain on the ground.
    Appeal from a judgment rendered upon a verdict by a jury, •and fi’om an order denying a motion for a new trial made by the plaintiff upon the minutes of the judge.
    The action was for the negligence of the defendant in permitting the wire upon its telegraph poles to become detached from the poles and fall into the public street, over which the plaintiff tripped, fell, and was injured. The defense was a general denial At the trial the jury rendered a verdict for the defendants.

      A. J. Cheritree, for app’lt; King & Ashley, for resp’t
   Mayham, J.

The defendant erected its poles and strung its wires along or upon a public street in the village of Glens Falls for the purpose of telephone service, and had so used the poles, for more than a year at the time of the alleged injury.

The undisputed evidence also shows that wires used for messenger service were also strung along on these poles, but without, the affirmative consent of the defendant.

On the occasion of a rain and snow fall ice accumulated on the wires attached to these poles in such quantities that some of the wires were broken and fell down upon the sidewalk, and one of the defendant’s employes pushed the broken wire from the sidewalk into the gutter, where it was permitted to remain for some time and to become frozen into the ice or mud upon the street, forming a loop through which plaintiff tripped, fell, and was-injured.

On the trial the defendant contended and sought to establish by-proof that the fallen wire, by reason of which the plaintiff fell and. was injured, was not the wire of the defendant but the wire of the messenger service, which the defendant did not erect, and over which the defendant exercised no control, and out of this contention arises the chief point of controversy on this appeal.

The learned trial judge charged the jury in various forms in. substance and effect that if it was not the defendant’s wire that-caused the injury then the defendant was not liable, that the defendant was obliged to take care of its own wire, but it was not. obliged to take care of its neighbor’s. If it owned or had charge of this wire, then it was its wire to take care of. The plaintiff excepted to this part of the court’s charge and upon that exception and alleged misdirection of the learned judge the plaintiff seeks to reverse the judgment in this action. We see no error in this direction or charge of the learned judge.

The complaint in this action charges the defendant with negligence, and the action was prosecuted upon the theory that the-injury was caused by the negligence of the defendant, and not upon the theory that the defendant had permitted the use of its poles by another in such a manner as to become a nuisance. The complaint alleged : “ That the defendant so carelessly and negligently took care of, managed and used said telegraph poles and the wires strung upon the same, did carelessly and negligently permit the wires to become broken or detached from the poles, so as to lay upon and along the highway and street, etc.”

There was no averment in the complaint for keeping, maintaining or suffering a nuisance, but mainly for negligence in permitting the wire on its poles to fall upon the street. If this had been the act of the defendant it would clearly have presented an act of negligence which unexplained would have presented ground of recovery by the plaintiff for the injury, or at least the jury might have so found, under the instruction of the learned trial judge in his charge. But the case was not tried upon the theory that the-defendant was liable for maintaining a nuisance by permitting-some other person to use its poles in such a manner as to create a. nuisance, and we do not think that position should be now assumed for the purpose of reversing this judgment.

In Dickinson v. The Mayor, 92 N. Y., 588, the court says r “The allegations in the complaint tend to establish that the defendant neglected to perform a duty in not removing the ice and snow from the walk. This is not an averment for keeping, maintaining or suffering a nuisance, but merely for neglect in not removing the ice and snow. The complaint was not for a positive wrong committed by the defendant, but for injury caused by reason of defendant's neglect. The authorities establish a distinction between actions for wrong and actions for neglect,” and the court in the case from which the above is quoted cites numerous cases sustaining that doctrine.

The court in this case hold that when the gist of the action alleged in the complaint is negligence, the plaintiff in order to. recover must show that the defendant lias failed in the use of ordinary diligence in the discharge of some duty incumbent upon it.

Was it incumbent upon the defendant to look after and keep' in position the wires of the messenger service, which was a distinct and independent company, and which put up its wires on defendant’s poles without the permission of the defendant? We-think not. There is nothing in this case which shows that the defendant bore such relation to the messenger company as to make the former liable for the negligence or misconduct of the-latter. The rule seems well settled that to render one person liable for the negligence of another the relation of master and servant, or principal and agent, must exist. Stevens v. Armstrong, 6 N. Y., 435; English v. Brennan, 60 id., 609. There seems to be no evidence in this case from which it can be found or reasonably inferred that either of the above relations existed between the defendant and the messenger company. If we are right in that conclusion, then the negligence of the messenger company cannot be imputed to the defendant. They were, so far as the management of their respective wires were concerned, each independent of the other, and one in no way responsible for the acts or negligence of the other as to third persons, unless the implied license by the defendant to the messenger company to attach its wires to the defendant’s poles in some way created a liability on the part of the defendant for the negligence of the messenger-company.

There is no pretense that the defendant’s structure or telegraph pole was unsafe, or that any injury resulted to the plaintiff from it. It was the wire either of the telegraph company or of the messenger company that produced the injury. If the wire of the-telegraph company, then the judge charged the defendant would be liable. If of the messenger company, then the defendant was. not liable. But it is insisted by the appellant that the fact that the defendant permitted the messenger company to attach its wires to defendant’s poles made the defendant liable in any event for the injury resulting from negligence of the messenger company in negligently permitting its wires to become detached from the poles by reason of which the defendant was injured.

Thus is presented the question whether a party who owns and possesses a structure lawful and safe in itself and who permits another, under an implied license, to use for a lawful purpose some-portion of the same, is liable for the negligence of the one using-to third persons who are injured thereby. The principal authority -cited urged by the learned counsel, for the appellant in support of appellant’s contention on this point is the case of Timlin v. The Standard Oil Co., 54 Hun, 44; 26 St. Rep., 42; affirmed in court of appeals in 126 N. Y., 514; 37 St. Rep., 906.

We think that case clearly distinguishable from the one at bar. In that case the Acme Oil Oo. leased of the owner for the use of the Standard Oil Go. a wall which was, as was found by the jury to be, a dangerous structure at the time of taking the lease. The ■other defendants were tenants and agents of the Standard Oil Company. The owner of the premises was not made a party. The defendants were all either lessees and occupants of ■the defective wall or the agents of such lessees. The wall was, therefore, in the natural occupancy and control of the defendants, and as the jury found it to be a nuisance, the defendants who occupied and maintained it were liable to the person who was injured by its fall. In that case the wall which fell was in the possession of the defendants and under their control. In the case at bar the wire of the messenger company was in its possession and -under its control, and not under the control of the defendants. If •the defendant’s poles had fallen and produced the injury and the action had been brought against it for the injury, the cases would ■have been parallel.

Then it would have been the duty of the defendant' in the use and possession of the wire to have exercised care in preventing its wire from falling and injuring the plaintiff. The defendant owed a duty to the plaintiff and the public in relation to its own wire ■and wires in its possession and under its control. But it owed no duty to the plaintiff in relation to the wire of the Messenger Co., unless the Messenger Co. was the servant, employee or agent of the defendant.

Ho such relation existed between the defendant and the Messenger Co. Timlin case, supra. Landon, J., says: “The defendants are liable if they owed a duty to the plaintiff’s intestate respecting this wall which they failed to perform, and because of such failure the wall fell and killed him.”

The duty in that case arose out of the defendants’ possession of the wall and its control over it. Ho such duty can be charged •upon the defendant here arising out of the Messenger Co.’s wires, which were not in the defendant’s possession and over which defendant exercised no control.

The charge to the jury was therefore correct and the judgment should be affirmed.

Judgment affirmed, with costs.

Learned, P. J., concurs; Landon, J., not acting.


author: Landon, J. Mayham, J. Learned, P. J.

text:
    Jennie K. Hamilton, Resp’t, v. Edwin L. Patrick and Sarah G. Tremain, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Vendor and purchaser—Contract.
    Plaintiff drew-up and signed a contract in the usual form for the sale of land and sent the same to defendant, who added a condition that plaintiff should fence the land, signed the condition and returned the c mtract. Plaintiffs’ husband procu; ed a surveyor to make a survey and defendant executed a deed, but did not tender it, and plaintiff never signified her acceptance of the condition. Two months after the date mentioned in the contract, defendant conveyed the land to Mrs. Tremain. ITeld, that, until the assent of plaintiff to the modification of the proposal there was no completed contract and defendant could withdraw the proposal to sell; that no such assent was manifested within the time fixed by the contract, and hence specific performance should not be decreed
    2. Same—Admissions.
    An admission in the answer of the execution of the contract cannot be-construed as an admission of an acceptance of the modification proposed.
    (Leabned, P. J., dissents.)
    Appeal from a judgment entered upon the decision of the court in Warren county upon the trial without a jury.
    The action was for the specific performance of an alleged contract for the sale of land.

      Charles E. Patterson and John S. Durand, for app’lts; A. D. Wait, for resp’t.
   Landon, J.

We think this judgment must he reversed because no contract was ever completely made between the plaintiE and the defendant Patrick for the purchase and sale of the premises. On the 14tli of January, 1885, the plaintiff sent by one Truesdell to the defendant Patrick a writing signed by herself as follows:

“I, Edwin L. Patrick, hereby agree to sell, and Jennie K. Hamilton agrees to buy, for two hundred dollars, the following described premises, located in the town of Caldwell, county of Warren and state of Hew York, viz(Here follows a description.) “A deed of said premises with the usual full covenants of warranty, &c., in which deed the wife of said Edwin L. Patrick shall join, is to be executed and delivered to said Jennie K. Hamilton on or before March 1,1885, at which date said money shall be paid. This contract is to bind the heirs, executors and administrators of each party.

“ Dated January 14, 1885.

“Jennie K Hamilton.”

The defendant Patrick received the writing, and added thereto at the bottom thereof the following, and signed the same and delivered it to Truesdell for the plaintiff:

I sign this contract with the consideration that you agree to build all of the line fence on said south line, running from said road described above to the shore of Lake George, so that I have-no expense.

“E. L Patrick.”

This additional paper was never signed by the plaintiff. Trues-dell sent the paper to the plaintiff. The plaintiff resided in Hew York ; the defendant Patrick at Lake George. The land in question is situated upon the west shore of Lake George. Truesdell had acted for the plaintiff in the negotiations with Patrick, but did not assume to give her assent to the modification added by Patrick. The plaintiff did not communicate to Patrick her acceptance of the terms added by him until after May 1st, following. On February 2, 1885, plaintiff’s husband wrote a letter to Brown, a surveyor at Lake George, extracts from which are here.after set forth, enclosing a copy of the alleged contract, requesting him to survey the land, draw a deed of it to plaintiff, and have Patrick and his wife execute it, and, if Patrick consented, hold the deed in escrow until he should forward a check. Brown read the letter to Patrick, who told him to make the survey, and also that he would not sell the land unless the plaintiff would make the line fence. Brown made the survey February 7th, drew the deed,, •omitting reference to the line fence, and handed the deed to Patrick. February 18th, Patrick asked Brown if he had received the check, and Brown replied he had not. February 24th, Patrick and wife executed and acknowledged the deed, and Patrick notified both Brown and Truesdell before March 1st that it was .ready for delivery. He retained it and never tendered it to plaintiff or asked performance. The plaintiff did not demand the deed ■or tender performance until July following. The parties did not further communicate with each other respecting the matter until after the plaintiff learned that Patrick had sold the premises to the ■defendant Mrs. Tremain. Negotiations between Patrick and Mrs. Tremain commenced about March 13th, and Patrick delivered the ■deed to her April 30, 1885. Three days prior to that date the plaintiff, then being at Lake George at the house of Truesdell and near to Patrick’s house, heard that Patrick had sold the premises to Mrs. Tremain. On May 6, 1885, the plaintiff asked Patrick for the deed of the premises, and in July following tendered him $200, with interest thereon from March 1, 1885, and demanded the deed, and Patrick refused.

It was not necessary that the plaintiff should sign the contract as modified by the addition made to it by Patriele. Justice v. Lang, 42 N. Y., 493 ; McCrea v. Purmort, 16 Wend., 465. But it was necessary that the plaintiff should in some way assent to it in its modified form ; otherwise there would be no meeting of the minds of the parties; and it was necessary that she should communicate that assent or acceptance to Patrick within a reasonable time, or place the notice of assent or acceptance in the proper way of reaching Mm within a reasonable time. White v. Corlies, 46 N. Y., 467. The court said, in the case cited: “Where the offer is made by one party to another when they are not together, the acceptance of it by that other must be manifested by some appropriate act. * * * A mental determination, not indicated by speech or put in course of indication by act to the other party, is not an acceptance which will bind the other.”

An acceptance not thus communicated to the proposer or his agent does not make a contract. Chicago & G. E. R. R. Co. v. Dane, 43 N. Y., 240; Pollock on Contracts, 26; McIver v. Richardson, 1 M. & S., 557; Mozley v. Tinkler, 1 C. M. & R., 692; Russell v. Thornton, 4 H. & M., 788.

Where the parties are together, and the proposal as written and signed is delivered and received as a completed contract, the assent thereto of the non-signing party may be inferred from the transaction. Here the plaintiff was in New York, and the defendant Patrick at Lake George, and until the plaintiff should ■communicate or transmit her acceptance to Patrick there would be no actual meeting of the minds of the parties.

The appeal book recites: “ The contract (that is the writing) was put in evidence, its execution being admitted. Marked Pl’ff 24.” Tliis was an admission of the execution of the paper, but no admission of any thing else. Certainly not that its effect was iu•ereased or augmented beyond its terms. Practically the same admission was made in the answer of the defendant Patrick, and the same effect should be given to it. The defendant Patrick expressly took the point on the trial that no actual contract had been made between him and the plaintiff.

The letter written by plaintiff’s husband to Brown, the surveyor, and Brown’s communication of its contents to Patrick was not the act of the plaintiff. But, if it had been, it fell short of an acceptance : it was rather an act showing that acceptance was held in abeyance. The letter stated: “ We desire to have included in the piece of land as much of the shore as can fairly and properly be done under the contract, and as many of the trees as can fairly be included within the lines. If there is any vagueness or error in the description, I hope you will confer with Dr. Patrick, and have it made right. I drew the description in the contract A ’ without being on the spot, and for that reason it may need correcting.” Nothing was said in the letter about the line fence, but Patrick at the time told Brown that he would not sell the land unless plaintiff would build the line fence. Thus the plaintiff’s husband clearly intimated his fear that the “ contract ” was inadequate to secure to him all the land he wanted, and Patrick was still uncertain as to whether his proposition about the line fence was acceptable, or would be accepted. One party kept aloof from closing the contract until the survey should prove satisfactory, .and the other kept aloof until the line fence should be brought within the agreement. They never by mutual acts came any nearer together.

A proposal may by its terms limit the time for acceptance. Especially is this so in the sale of an option, or where the contract embraces one. In such cases the right of acceptance is a contract right, and the proposal cannot be revoked otherwise than within the terms of the contract. When no limitation is expressed in terms in cases where"the right of acceptance is a contract right the rule is that the acceptance must be made within a reasonable time, and what is a reasonable time depends upon the circumstances. Fitzpatrick v. Woodruff, 96 N. Y., 561; Wooster v. Sage, 67 id., 67.

When Patrick made the addition to the plaintiff’s proposal the whole paper became Patrick’s proposal. It was not founded upon any consideration. Patrick proposed in anticipation of receiving an acceptance, not in consideration of any present promise or benefit. His proposal therefore vested no contract right in the plaintiff The only right she had was to accept the proposal while it was open. As it was a purely voluntary proposal, Patrick could withdraw it at his pleasure. It is plain that he kept it open until the first day of March had passed. It is not clear that he kept it open any longer. The proposal itself implies the necessity of acceptance on or before that day. It is therein proposed that the deed should be executed and delivered to the plaintiff “on or before March 1, 1885, at which date said money shall be paid.”

Acceptance must precede any' obligation to perform, and of necessity must be made so as to admit of performance as proposed. Any subsequent acceptance would imply a contract different from the terms proposed. Such a change cannot be unilateral, but must be mutual. Patrick could not be forced by the plaintiff to make any change, however slight. Parties may be as unreasonable as they please about entering into a contract. The equitable rules which the courts sometimes resort to in construing a contract after it is made cannot be resorted to to compel a party to adhere to his voluntary proposal to make one. A proposal may be revoked at any time before acceptance. Quick v. Wheeler, 78 N. Y., 300.

It is plain that an offer to sell made without consideration is a nudum pactum, and, therefore, the proposer may change his mind ; if the other party accepts after such change their two minds do not meet, and hence no contract is made. It will not, however, be presumed that he has changed his mind within the time obviously allowed .for acceptance unless he does some act indicating such change. Suppose that notwithstanding March 1st had passed, Patrick still kept the proposal open for a time; on the 30th of April he conveyed the land to the defendant, Mrs. Tremain ; he thereby indicated in the most decisive manner that he had finally changed his mind. The plaintiff had meantime done nothing to raise any equities in her favor. She learned the fact of this conveyance, and afterwards gave Patrick notice of her acceptance. She then knew that the proposal to her was 'withdrawn, that their minds could not meet, that no contract could be made. In Dickinson v. Dodds, 2 Ch. D., 463 ; 16 Moak, 854, it was held that an offer to sell property may be withdrawn before acceptance without any formal notice to the person to whom the offer is made; that it is sufficient if that person has actual knowledge that the person who made the offer has done some act inconsistent with its continuance, such as selling the property to a third person. The court, adopts the line of reasoning which we have set forth. It seems to be conclusive.

The learned trial judge was of opinion that the tender of performance by the plaintiff in July, and the subsequent commencement of this action, constituted such an adoption by the plaintiff of the proposal as rendered the remedies between the parties mutual. This would no doubt be true as between Patrick and the plaintiff, if Patrick had elected so to treat it. But he did not so elect. Such an acceptance was too late to bind him against his will, and even if he had elected to be bound, it was too late for him to change his position with respect to his grantee, the defendant, Mrs. Tremain, so as to impair the title he rightfully conveyed to her.

The defendant, Mrs. Tremain, urges further grounds for reversal based in part upon facts touching the good faith of her purchase from Patrick. As the judgment must be reversed for the reasons above considered, we do not deem it needful to set forth such facts or prolong this discussion.

Judgment reversed, new trial granted, costs of this appeal to abide event.

Mayham, J.

I do not think the answer in this case was such an admission of the terms of the contract as alleged in the complaint as to justify the plaintiff’s recovery upon the pleadings alone. The proof at the trial fails to show that the minds of the parties met upon the proposition as to building fence, imposed by the ■defendant as a condition of signing the proposed contract.

Learned, P. J.

(dissenting.)—The complaint alleges that by a writing dated January M, 1885, signed by plaintiff and defendant Edwin L. Patrick, the said defendant contracted to sell a certain lot of land to plaintiff for a certain price, and that a copy of the agreement is annexed, marked A.

That, subsequently, plaintiff caused the land to be surveyed and a description made ; and that the same was submitted to Patrick and approved by him, and that it was agreed that the land .should be conveyed by that description.

The answer of defendant Patrick admits that at the time of the ■execution of the agreement referred to in the complaint he owned the land, that the agreement referred to in the complaint was signed by himself and plaintiff, and was similar to schedule A., but he cannot state whether said copy is an exact copy of the agreement or not He avers that by the terms of the agreement the purchase price was to be paid on delivery of the deed. He admits the making of the survey and the description; and avers that he and his wife did, on or before March 1, 1885, execute and tender to plaintiff a deed substantially according to said description.

He avers that on and for a long while prior to the 1st of March, 1885, and at all times, he was ready and willing and able to perform said agreement with plaintiff, until plaintiff failed and refused to perform it on her part, and that she failed to perform it on her part for many weeks after March 1, 1885.

On the trial the original contract was put in evidence and its execution admitted. It agrees with schedule A. attached to the complaint

How, upon these pleadings, I do not see how it can be in the power of Patrick to claim that a valid written contract was not made. His defense rests on his readiness to perform, and the refusal of plaintiff to perform on her part

It is true that the contract consists of an agreement in an ordinary form for Patrick to sell and plaintiff to buy the land at a certain price. This is signed by the plaintiff. Below it is the following: “I sign this contract with the consideration that you agree to bui'ld all of the line fence,” etc. At the foot is the signature of Patrick.

The plaintiff alleges that she made this contract, giving a copy of the whole, including the clause underneath her signature. Patrick admits the making of the contract, although he cannot say whether the schedule is a correct copy. The original is proved to have been executed and correspond with schedule A. Patrick’s answer is an admission that the written contract was executed. He evidently includes in that admission the paragraph between plaintiff’s signature and his own. So that we have the statement of both the parties that this contract (probably including that paragraph),was their written agreement. I think it is not open for Patrick on these pleadings to show that no contract was made'. That was not a matter in issue between the parties. Patrick admitted the contract, averred that he had made and tendered a deed in compliance therewith, and that plaintiff had refused to perform. Whether or not he could have successfully denied the execution of the contract by both parties, certainly he did not. And it is not in his power at this time to say that the evidence failed to prove a contract. It is not necessary, therefore, to consider whether the circumstances testified to on the trial established a binding agreement between the parties. The defense of defendant Patrick, as set forth in his answer, is the failure of plaintiff to perform a contract which he says he was willing and offered to perform.

If, then, this written contract was binding, its terms were that Patrick and his wife were to execute and deliver the deed to plaintiff on or before March 1,1885, at which elate the money was to be paid. The defendant Patrick and his wife executed the deed about February 24. Ho doubt existed in their minds at that, time that Patrick had contracted in writing to sell the land to plaintiff. And he supposed that unless plaintiff paid him the money by March 1 the contract was at an end, and he might make a better bargain if he could. It is evident from the letter of Patrick that in his view of plaintiff’s rights she “ slept on her privilege,” and by neglecting to tender him the $200 on or before-March 1, lost all claim to the land. In that belief he proceeded subsequently to sell it to Mrs. Tremain, one of the defendants.

The delivery of the deed and the payment of the money were-to be cotemporaneous. If either party therefore would put the other in default he must tender performance and demand performance from the other. Time is not generally regarded in equity as the essence of the contract. Duffy v. O'Donovan, 46 N. Y., 223; Hubbell v. Van Schoening, 49 id., 326; Edgerton v. Peckham, 11 Paige, 352.

Fronrthe time of making the contract equity regards the vendeeas the owner of the property and the vendor as a creditor for the purchase money with security therefor on the land. Lewis v. Smith, 9 N. Y., 502. Hence it comes that as the vendor is treated as equitably a mortgagee, the vendee is not to lose his equitably mortgaged - land by mere non-payment of the debt at the law day. The rules on this point are well settled in Webb v. Hughes, L. R., 10 Eq., 281, where it is said: “ A purchaser may by the terms of the agreement make time the essence of the contract. But it requires a very strict stipulation to effect that object.” 3 Pomeroy’s Equity, § 1408; 2 Story Eq. Jut., § 776.

Now it appears from the testimony of defendant Patrick, that lie heard that plaintiff and her husband were sick ; then that they wore getting better and it came so near the 1st of March that he felt anxious about the money. He did not, however, write to plaintiff, who was then in New York, nor did he tender or cause to be tendered to her the deed. His daughter about the 25th of April told him that plaintiff considered the contract good and that she, the daughter, was afraid he would have trouble. He said he would risk all trouble. And on the 30th of April he conveyed the land in question to defendant, Mrs. Tremain. It is evident then that defendant Patrick put himself on the ground then, as he did in his answer in this case, that because plaintiff had not tendered him the money on or before March 1st, he was free from all obligation to her. I do not think this was correct. At the very time when he delivered the deed to Mrs. Tremain, the plaintiff was staying at the next house to him. He might have tendered plaintiff the deed and demanded the money without any difficulty.

I think that the finding of the court that defendants Mrs. and Mr. Tremain had notice of plaintiff’s contract with Patrick before the deed was delivered to Mrs. Tremain is sustained by the evidence. Mrs. Tremain drew up the deed to herself from the dictation of Patrick. He read from the deed which he had executed to plaintiff and told her what that deed was. She said she was astonished, and that if plaintiff had any rights she, Mrs. Tremain, would have nothing to do with it. Patrick said plaintiff had none, and Mrs. Tremain said she would take his word for it A letter of Patrick to Mrs. Tremain of March 12th refers to the contract

It is not necessary to repeat the other testimony tending to show either actual notice or facts sufficient to put Mr. and Mrs. Tremain upon inquiry. They did not inquire of the persons who could have told them, their near neighbors and old friends, plaintiff and her husband. Reed v. Gannon, 50 N. Y., 349.

In my opinion, the judgment of the court below was right, and should be affirmed, with costs.

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


text:
    Peter A. Strack, Resp’t, v. John Hurd, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Contract—Performance.
    Although a contract for the performance of work is an entire one, the law will not compel the contractor to perform all he had agreed to do under it, after the other party has failed on his part to pay the stipulated instalments when they fell due, and while he is in default in such payments. In such case the contractor may recover for the work actually performed at the contract price.

      Appeal from a judgment entered upon a verdict at a Franklin county circuit, and from an order denying a motion made upon the minutes of the judge for a new trial.

      S. A. Beman, for app’lt; Gordon & Main, for resp’t
   Mayham, J.

This action was prosecuted to recover a balance claimed to be due the plaintiff from the defendant on a contract between plaintiff and defendant for cutting and skidding logs and cutting and piling wood along the track of the ISTorthern Adirondack Extension Railroad.

The complaint alleges that the plaintiff entered into an agreement with the defendant to cut the timber along the right of way of the ISTorthern Adirondack Extension Railroad from Big Marsh, so called, to Tapper’s Lake station, a distance of about eighteen miles, timber fit for that purpose to be cut into saw logs at an agreed price of thirty-five cents per 19-inch standard, to be paid for twenty-five cents per standard when said logs are skidded and accepted by the defendant, and ten cents per standard when the contract was completed, and the remainder of the timber along such right of way to be cut into cord-wood at and for the agreed price of seventy-five cents per cord, to be paid by the defendant as follows: Sixty-five cents per cord when measured and accepted and the balance of ten cents per cord when the contract is completed. The complaint further alleges that the plaintiff under this contract cut 404 cords of wood and about sixty standard logs, admits payment of $272.60, being sixty-five cents per cord for the wood and ten dollars to apply on the logs.

The complaint also alleges the cutting of 202 cords more of wood and sixty-eight standard saw logs, and admits payment thereon of $56.00, but alleges the refusal to pay according to the contract the sixty-five cents per cord for wood and twenty-five cents per log for the logs, and charges that as a breach of the contract of the defendant and claims damages in the sum of $800. The answer sets up the contract substantially as that alleged in the complaint, except that the cord wood was to be cut four feet and four inches long, and that it was to be good merchantable cord wood, and cut and piled in a good merchantable manner, and that the logs were to be skidded at a suitable height to be conveniently loaded on railroad cars, and alleges a breach of the contract on the part of the plaintiff in various particulars, and claims damages to the amount of $200.

The main contention in this case seems to be whether this was an entire contract for the performance of this work, so that a complete performance" was a condition precedent to the liability on the part of the defendant to pay for the same, and, if it was, then which of the parties was first in default in the performance of his obligation.

The complaint alleges that the plaintiff contracted to cut the wood and logs on the right of way for the whole eighteen miles between the swamp and Tupper Lakestation. This would seem to make the performance of this work one entire job, for the performance of which the plaintiff would be liable, and proof o£ performance would be a pre-requisite to plaintiff’s right of recovcovery, unless the failure of the defendant on his part to perform some of the conditions obligatory upon him relieved the plaintiff from full and complete performance. McMillan v. Vanderlip, 12 Johns., 165; Hiram A. Crane v. Herman Knubel, 61 N. Y., 645. But it is insisted by the plaintiff that the defendant was guilty of a breach of the agreement on his part in not measuring and accepting the 202 cords of wood and the sixty-eight logs last cut, and by reason of that failure on the part of the defendant the plaintiff was at liberty to abandon the further performance on his part, and sue for and recover upon the contract price the balance at that time not paid. If the plaintiff was right in this contention upon the facts, the rule of law contended for by him would apply. The law would not compel the plaintiff to proceed with the contract, and perform all he had agreed to do under it, after the defendant had failed on his part to pay the stipulated instalments at the time they fell due, and while he was in default on such payments, Moore v. Taylor et al., 42 Hun, 45 ; 5 St. Rep., 202, and if such default existed, the plaintiff for the work actually performed could recover at the contract price. Whelan v. The Ansonia Clock Co., 97 N. Y., 293. There was a conflict in the evidence whether the work as far as performed was done in accordance with the terms of the contract, and whether the defendant had failed to pay the instalments on the contract as the fell due.

These disputed facts were, we think, properly submitted to the jury under proper instructions from the learned trial judge, and their verdict upon the disputed facts should not, we think, under the evidence in this case, be disturbed.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.