author: Follett, J. Van Brunt, P. J.

text:
    Mary S. Douglas, Pl'ff, v. Frederick H. Smith, Assignee, App'lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893)

    Assignment for creditors—Parties.
    Where an action is brought by a certain creditor to compel an accounting by an assignee for their benefit, and a referee appointed to take and state the accounts of the assignee, and ascertain amounts owing all the creditors, and subsequently a motion is made by other creditors to be brought in as plaintiffs, it will not be granted, as by presenting their claims to the referee they become parties to the proceedings, and their rights as-fully protected as if parties to the action.
    Appeal from part of an order granting the motion of Hotchkiss & Company and George W. Hill, to be joined as parties-plaintiff in the title of this action, directing that the fees and expenses of the referee be charged upon and paid out of the funds in the hands of Fred H. Smith, as assignee.
    On February 26, 1889, Benjamin Harris made a general assignment for the benefit of creditors to Frederick H. Smith, who accepted the trust. On the 27th of February, 1890, this action was begun, to establish as a claim against the estate a debt alleged to have been contracted by the assignor. It is alleged in the complaint that the assignee has in his hands money and property belonging to the assigned estate, which he neglects to distribute among the creditors, and that he has rendered no account as assignee. It is also alleged that the creditors are numerous, some unknown, and that it is impracticable for the plaintiff to bring them all before the court in this action, and for these reasons she sues for the benefit of all. A judgment is demanded that the assignee account and pay the claim of the plaintiff, and also the claims of the other creditors. ' The defendant answered that he had no knowledge or information sufficient to form a belief as to whether his assignor ever contracted the debt described in the complaint ; that he tendered with his answer his account, and prayed “ judgment that the complaint be dismissed, unless plaintiff should establish by due proof the claim alleged in the complaint, and, if the claim is so established, that then a final accounting may be had herein, and that an order may be made bringing in all the creditors of the said Benjamin M. Harris; that the accounts of the defendant, as assignee, be passed, and he be discharged from the trust; and that the defendant have such further or other relief as may be just, with the costs of this action.” January 2, 1891, an order was entered in the action, appointing a referee to take and state the accounts of the assignee. Hearings were had, and the referee made his report, which was not filed or delivered within sixty days, as prescribed by § 1019 of the Code. Thereupon the attorney for the defendant notified the attorneys for the plaintiff' that he elected to end the reference, in which he was sustained. Douglas v. Smith, 47 St. Rep., 54. Afterwards, George W. Hill and Hotchkiss & Co., a firm, the partners of which are not stated, moved that they be joined as parties plaintiff in the-action, and for the reappointment of the referee, and for such other and further relief as to the court should seem just. This motion was contested by the assignee, but not by the plaintiff. On this motion an order was entered, by which it was referred to a referee to take and state the account of the assignee. It was further ordered that the referee ascertain the amounts due to all of the creditors, and for that purpose he was directed to publish the usual notice to creditors to come in and prove their demands. The order contained the following provisions : “ Ordered, that the motion to' join said Hotchkiss & Co. and George W. Hill as parties plaintiff herein be, and the same is, granted, and they shall hereafter have the same rights, and be entitled to the same notice, as if they were named as parties plaintiff in the title of this action. * * * *" That the fees and expenses of the said referee be charged upon and paid out of the funds in the hands of Fred H. Smith, as such assignee, unless otherwise so directed by the court or said referee." The defendant appeals from the two provisions of the order above quoted, but from no other part of it.

      J. A. Shoudy, for app’lt;

      Hollín H. Lynde, for resp’ts.
   Follett, J.

Bierman v. Hake, 42 Hun, 542; 4 St. Rep., 676, was brought by creditors to compel an assignee for their benefit to account. After issue joined, a referee was appointed to take and state the account of the assignee, and ascertain amounts owing to all of the creditors of the assignor. Subsequently certain creditors moved that they be made parties plaintiff to the action, but their motion was denied, on the ground that their presence as plaintiffs was unnecessary, because they had the right to appear before the-referee, prove their claims, and protect their rights, as fully as though they were parties to the action. But it is said, as a reason for the present motion, that the plaintiff has become unwilling to compel the accounting to proceed. The answer to this is that any of the creditors who have appeared or may appear and become parties to the accounting have the same right to prosecute it and bring it to a close as have the parties to the action. It is also said in behalf of the moving creditors that they have reason to fear that the plaintiff will settle and discontinue the action, and so put an end to the accounting. This fear, we think, is groundless, for it may be the court would find a valid reason for refusing to permit an order of discontinuance to be entered in such an action, especially where all parties to it ask in their pleadings for a full accounting for the benefit of all the creditors. Should the parties to the action assume to settle it, and enter an order without leave of the court, and without giving all the creditors who had appeared on the accounting an opportunity to be heard, it would undoubtedly be vacated. The order in this case seems to be defective, in failing to provide that the new parties be brought into the action by an appropriate amendment to the complaint. The moving creditors did not ask to come in as plaintiffs, and be represented by the attorney for the present plaintiff, but apparently wish to have their interests prosecuted by their own attornev. We know of no precedent for bringing into an action several plaintiffs with the right to appear, by separate attorneys. We think that the part of the order directing that these creditors be brought in as plaintiffs cannot be sustained. But we see no objection to the other provision from which an appeal is taken. The right of the court to finally charge the costs upon’those who ought to pay them is not interfered with, and the provision was simply intended to secure, in any event, the payment of the fees and disbursements of the referee. That part of the order directing that the respondents be brought into the action as parties plaintiff is reversed, and that part of the motion denied; but in all other respects the order is affirmed, without costs to. either party.

Van Brunt, P. J.

Parties presenting claims before a referee on assignee’s accounting become parties to the proceedings, and no action can legally be taken without notice to them, and they have the same rights to compel progress as though originally parties. I, therefore, concur.

O’Brien, J.,


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Mary C. Warren, Executrix, et al., Resp'ts, v. William C. Banning, Individually and as Executor, App'lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Vendor and purchaser—Saxe by executor.
    Where an executor contracted to sell land, when his authority to sell was involved in litigation and a receiver appointed, and he knew all these facts, a failure to disclose which would be a good defense to a suit brought by him to compel the completion of the purchase, Held, that such facts were sufficient to sustain an action by the purchaser to recover the money paid on the contract.

      % Same.
    The failure of the executor to disclose such facts is his personal act and justifies a judgment against him individually.
    Appeal from a judgment entered in a common law action by which the plaintiff recovers a personal judgment against Mr. Banning for $38,055.42, and further decrees that defendant pay to plaintiffs $30,719.61 on deposit in the Union Trust Co., by executing and delivering to plaintiff his check or draft “ as executor ” on the Trust Co., and that the Trust Co. pay said sum and interest
    This action was brought to recover $32,064.16, the amount paid by the plaintiffs’ testator to the defendant on a sale of real estate; forty-five dollars, auctioneer’s fees; and $1,085, expenses of examination of title, on the ground that the title thereto was defective, and that the defendant was guilty of bad faith in making the sale without disclosing the fact that litigations in respect to the title were then pending. May 27, 1887, Abner Mellen died seized in fee of Ho. 204 Fifth avenue, and of other real estate. He left surviving1, Helen L. Mellen, widow; Abner Mellen, Jr., son ; Maria L. Kendall, daughter, and Abner M. Wilcox, grandson, who is the son of a deceased daughter, his next-of-kin and heirs-at-law. He left a will which contains, among others, the two following clauses: “ Fifth. All the real estate of which I shall die seized and possessed, or to which I shall be entitled, at the time of my decease, I give and devise and bequeath unto my wife, Helen L. Mellen, and my three children, Abner Mellen, Jr., Maria L. Kendall and Helen J. Banning, share and share alike, to them, their heirs and assigns, forever.”
    “ Eighth: I hereby give full power and authority to my said executrix and executors, or whichever of them shall qualify, and the survivors and survivor of them, for the purposes of a division or distribution, or for any other purpose that they, in their best judgment, may think proper, to grant, alien, sell and convey, either at public or private sale, all or any real estate owned by me, or to which I shall be entitled, or in which I shall have any interest, at the time of my decease, and to apply the proceeds of such sale or sales in conformity to the provisions of this, my last will and testament.” June 15, 1887, the will was probated and letters thereon were issued to Helen L. Mellen, Abner Mellen, Jr., and William 0. Banning, the persons nominated as executors by the testator, who entered upon the execution of the trust. September 28, 1888, Helen L. Mellen died intestate, leaving said Abner Mellen, Jr., Helen J. Banning and Maria L. Kendall, her children and Abner M. Wilcox, a grandson, the child of a deceased daughter, her next of kin and heirs. On the death of the widow each of the three children became entitled to an undivided five-sixteenths and the grandson to an undivided one-sixteenth of the realty of which Abner Mellen, Sr., died seized. November 5, 1888, Abner Mellen, Jr., conveyed his five-sixteenths to Lawrence E. Ellis, who on the same day conveyed the same interest to Sarah E. Mellen, the wife of Abner Mellen, Jr. Both deeds were duly recorded November 28, 1888, in the office of the register of the city and county of New York. On the 30th of November, 1888, Sarah E. Mellen began an action in the supreme court for the partition or sale of the real estate in question, and of all that Abner Mellen, Sr., died seized. Abner Mellen, Jr., Maria L. Kendall, Helen J. Banning, William 0. Banning, Abner M. Wilcox, and Winnifried, his wife, were parties defendant. The complaint and notice of the pendency of the action were filled December 1, 1888, and all of the defendants appeared and answered except Abner Mellen, Jr. January 17, 1889, a receiver of the rents and profits was appointed of all the lands involved in the partition action. On the 6th day of March, 1890, Abner Mellen, Jr., died intestate, leaving Sarah E. Mellen, widow, and three minor children, (Jordon McKay Mellen, Stanley Mellen, and Evelyn Mellen, his only next of kin and heirs. March 27, 1890, Maria L_ Kendall began an action in the supreme court against Sarah E. Mellen, (Jordon McKay Mellen, Stanley Mellen, and Evelyn Mellen, to set aside the conveyance of Abner Mellen, Jr.’s, five-sixteenths interest to Sarah E. Mellen, on the ground that it was fraudulent and void as against creditors. March 31, 1890, the complaint and notice of the pendency of this action were filed in the clerk’s office, and afterwards the defendants appeared and answered. April 2, 1890, Sarah E. Mellen began an action against William C. Banning, as the executor of the last will of Abner Mellen, Helen J. Banning, Maria L. Kendall, Abner M. Wilcox and Winnifried, his wife, Gordon McKay Mellen, Stanley Mellen, and Evelyn Mellen, fbr the purpose of having it adjudged that the power of sale had become inoperative by reason of the fact that the estate had been settled, all of the debts and legacies paid, and that the devisees had agreed to hold the lands as such, instead of the proceeds of their sale. The complaint and a notice of the pendency of this action were filed April 8, 1890, in the clerk’s office.
    This being the situation of the title, the defendant advertised that he would sell the property at auction on the 17th of April, 1890, free from all encumbrance, excepting party-wall rights, rights of lessees in occupation, and a mortgage of $50,000. The defendant did not disclose the fact that the title to the property was involved in litigation ; and the plaintiff’s testator purchased it, without notice thereof, for $270,000 over and above the mortgage, and paid down $32,064.16. It was agreed that the conveyance should be made, and the purchase price paid May 1, 1890 ; but it was subsequently postponed to May 12, 1890, when the plaintiff’s testator finally rejected the title, and refused to pay the remainder of the purchase price because of the litigation pending, and afterwards brought this action to recover his deposit, and the expense of searching the title.

      George Bill, for app’lt;

      Theodore De Witt and George G. De Witt, for resp’ts.
   Follett, J.

It is settled in this state that the equitable rules applicable to a suit to compel a vendee to specifically perform his executory contract to purchase land are also applicable to an action’ at law brought by him against his vendor, to recover money paid on such a contract on the ground of the inability of the vendor to vest the vendee with a good marketable title. ' Moore v. Williams, 115 N. Y., 586; 26 St. Rep., 259; Methodist E. C. Home v. Thompson, 108 N. Y., 618; 13 St. Rep., 127; Burwell v. Jackson, 9 N. Y., 535-542. Under this rule, facts which would be a good defense to a suit in equity brought to compel a vendee to take the title are sufficient to sustain an action at law brough% by him to recover from his vendor money paid on an executory contract. Another rule should be brought to mind before entering upon the consideration of the rights of these litigants, which is that a party to an executory contract for the sale of land has not an absolute right to a specific performance of the contract, but such relief is granted or refused according to the circumstances of each case. Peters v. Delaplaine, 49 N. Y., 362; Day v. Hunt, 112 N. Y., 191; 20 St. Rep., 233; Hayes v. Nourse, 114 N. Y., 595-605; 24 St. Rep., 569; Fry Spec. Perf. (3d Amer. ed.). 10, § 25; Pom. Spec. Perf., 4, § 4; Id., 47, § 35; Story Eq. Jur. (13th ed.), §§ 161-742.

At the time the sale was made the right of the defendant to sell under the power in the will was involved in two actions, which were being then- actively litigated. In one of them a receiver of the rents and profits of this and other lands had been appointed, with the assent of the parties to the action; was in possession, through tenants, who had been directed to attorn to him. By the printed terms of sale the purchaser was to become entitled to the rents and profits from and after the date of the acceptance of the deed. It is not apparent how the plaintiffs’ testator could have acquired the possession of the property, or the right to collect the rents and profits, without procuring, through the aid of the courts, a discharge of the receiver. This the purchaser was under no ob- ■ ligation to do. Kopp v. Kopp, 48 Hun, 532; 15 St. Rep., 967. It was averred on the one side, in these actions, and denied on the other, that the estate of Abner Mellen, Sr., had been settled, the ■debts and legacies paid, and that the devisees mentioned in the fifth clause of the will had elected to hold the land, as such. This was an issue of fact to be determined by oral evidence. If it is true that the estate had been entirely settled, and the devisees had elected to hold the land, as such, the power of sale was -extinguished. Sweeney v. Warren, 127 N. Y., 426; 40 St. Rep., 304. A prudent person, with knowledge of the litigation pending in respect to this property, would neither have purchased it at a fair price, nor loaned any considerable sum of money secured by a mortgage upon it. The defendant had personal knowledge of all these facts, which he must have known would, if brought to the attention of persons proposing to purchase, have affected the price of the property. Upon the trial of this action the defendant was a witness on his own behalf. He did not claim to have disclosed the- situation of the property, nor did he offer any explanation of his conduct. He did not testify that the estate of the testator had not been settled, nor that the sale was made for the purpose of settling the affairs •of the estate. The failure of the defendant to disclose these facts and circumstances would have been a good defense to a suit brought by him to compel the vendee to complete his purchase. Shirley v. Stratton, 1 Brown Ch., 440; Drysdale v. Mace, 5 De Gex. M. & G., 103; Cathcart v. Robinson, 5 Pet., 264-275; Miller v. Chetwood, 2 N. J. Eq., 199; Margraf v. Muir, 57 N. Y., 155; Jones v. Rimmer, L. R., 14 Ch. Div., 588; Livingston v. Iron Co., 2 Paige, 390; Dart Vend. (6th ed.), 112; Baskcomb v. Beckwith, L. R., 8 Eq., 100. In the last case Lord Romilly said: “ It is of the greatest importance that it should be understood that the most perfect truth and the fullest disclosure should take place in all •cases where the specific performance of a contract is required, and that if this fails, even without any intentional suppression, the court will grant relief to the man who has been thereby deceived, provided he has acted reasonably and openly.”

An attempt is made to bring the case at bar within the rule laid down in Hayes v. Nourse, 114 N. Y., 595; 24 St. Rep., 569, but the facts in the two cases are entirely dissimilar. In the case -cited, the notice of the pendency of the action related to a suit in which no steps had been taken for forty-six years, and for sixty-one years the vendor and his predecessors in the title had been in the undisputed possession of the property. Under the rule declared in Moore v. Williams, supra, and kindred cases, the plaintiffs established the right to recover the money paid on the contract and the expense incurred in searching the titles.

The general rule is that, in case a person refuses to pay money to one entitled to it, the person in default is chargeable with the legal rate of interest as damages, and we see no reason why this rule should not be applied in this case. The seventh clause of the conditions of sale exempts the vendor from the payment of interest on the deposit during the time that may elapse between the date of the deposit and the execution of the contract, but it does not relieve him in case of his inability to carry out the contract, and the vendee becomes entitled to a return of his money. The general rule is that executors are personally liable on contracts entered into by them in respect to the estate of their testators. New v. Nicoll, 73 N. Y., 127. But, without discussing the question of liability of those acting by virtue of powers, it is sufficient to say that a person acting in a representative capacity is liable to the person injured by his misrepresentation or concealment when it is his duty to speak. Cullen v. Thomson, 4 Macq. H. L. Cas., 441; 9 Jur., N. S., 85; Evans Prin. & Ag., 390. The vice of this contract lies in the failure of the defendant to disclose that which it was his duty to make known, which was his personal act, and for which he is liable to the party injured. We have not failed to observe that the twenty-sixth and thirtieth paragraphs of the complaint were stricken out on the trial, and that the case is to be treated as though those allegations had never been made. Section 1815 of the Code of Civil Procedure provides that when it is uncertain whether an executor is liable as such, or individually, an action may be brought against him in both capacities, and a judgment rendered against him as executor or individually, but that in such a case the judgment must distinctly show in which capacity the defendant is adjudged liable. The facts of this case justified a judgment against the defendant individually.

None of the exceptions taken to the rulings on the trial, or to the refusals of the court to find facts and conclusions of law, have any merit, and they require no discussion. The judgment is right, and it should be affirmed, with costs.

O’Brien and Barrett, JJ., concur.


author: Hardin, P. J.

text:
    Derastus Swarthout et al., App'lts, v. William F. Ranier, Resp't.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Cloud on title—Mobtgasb by life tenant.
    In an action to remove a cloud on title, it appeared that S. by his last will gave and devised to his wife A. all his property, “to have_ and to hold for her comfort and support, if she needs the same, during her natural life,” and then “if there is enough of my property left at the death of my wife,” he gave $1,000 to a church. A. thereafter married defendant, and gave him a mortgage on certain real property left by S. A. died, and the action was brought by the heirs of S. to have such mortgage declared void and cancelled, alleging that no part of the proceeds therefrom had been used for A.’s “ comfort and support.” The complaint was dismissed by the special term. Held, error, as a case was made out which entitles the plaintiff to the interference of a court of equity.
    Appeal from a judgment entered in Schuyler county upon a decision made at special term in that county, dismissing the plaintiff’s complaint, with costs. The judgment recites that upon the case coming on for trial that an - order was “ then and there made upon the pleadings dismissing the plaintiff’s complaint, with costs to the defendant.” The appeal book contains no findings made by the trial court. The case states that when the cause was reached and moved for trial “ the defendant’s attorney then and there moved to dismiss the complaint and the action upon the pleadings, and, thereupon, the said court dismissed the complaint of the plaintiffs and the action, with costs to the defendant ; and plaintiffs’ counsel then and there duly excepted.” In the complaint it is alleged, viz.: That Darius Swarthout died in the Town of Tyrone, Schuyler county, on the 1st day of October, 1886, leaving his last will and testament; a copy of it is set out; that the will was probated on the 25th of October, 1886, and letters testamentary issued to Doughty, the executor; and the testator left him surviving his widow, Ann E. Swarthout, but left no children or descendants, and left no father, him surviving; that he left Joanna Swarthout, his mother (who has since died), and Derastus Swarthout, and the other plaintiffs, “his brothers and sisters and only heirs at law;” that the testator, at the time of his decease, was the owner in fee, and died seized of the lands described in the complaint, consisting of about eighty-one acres.
    It also alleged that, “ under and by virtue of the said will, the said Ann E. Swarthout took a life estate in the real and personal property of which the said Darius Swarthout, deceased, died seized, to have and to hold the same for her comfort and support, if she needed the same, during her natural life, and which was all the estate or interest which she had or took in and to said estate or any part thereof, and that she had no other or different estate or interest ip the same.” Also, that she, under and by virtue of the will, took and received all of the personal property of which the said Darius Swarthout died seized, amounting in all to the sum of $1,200; that she had the sole use, profits and enjoyment of all the lands and premises aforesaid “ for and during her natural life.” That in the month of April, 1890, she intermarried with the defendant and was his wife until the 29th day of September, 1891, at which time she departed this life at Penn Yan, leaving her husband, the defendant, her surviving. Also, “ That at the decease of the said Ann E. Ranier, the said lands and premises herein described remained intact, and had not, nor had any part thereof, been used and disposed of for the comfort and support of the said Ann E. Ranier, formerly Ann E. Swarthout, under the provisions of said will, and that the same, upon her decease, descended to ” Joanna Swarthout, the mother, during her life and the reversion to the plaintiffs * * * in fee as the heirs at law of said Darlus Swarthout, deceased. Also alleges that “ on the 1st day of •October, 1891, the defendant herein caused to be recorded in the records in the Schuyler county clerk’s office, at Watkins, N Y., in book 30 of mortgages, at page 139, a certain written instrument, purporting to be an indenture of mortgage, and which purported to be executed and acknowledged by the said Ann E. Earner, formerly Ann E. Swarthout, to the defendant, and purporting to secure to the defendant the payment of the sum of $3,000 and interest thereon, and purporting to cover and bind the said lands and premises hereinbefore described for such payment, and dated on the 1st day of July, 1890, a copy of which said instrument ” is set out. Also alleges, “ And these plaintiffs further allege that the said Ann E. Eanier had no right, power or authority to execute, acknowledge or deliver to the defendant, or any cther person, the said instrument marked 1B,’ for the purpose of binding and charging the fee in remainder of said lands and premises, and that said instrument, purporting to be executed by her, was and is, as these plaintiffs are informed and believe, wholly without consideration, illegal and void as against these plaintiffs and their several interests in said lands and premises.” Also alleges “ that the said defendant claims and insists that said instrument is a good, valid and subsisting lien and mortgage upon the whole of said lands and premises, and upon the interests of these plaintiffs therein, and that the defendant intends to insist upon the collection and payment of the same out of the said lands and premises." Also alleges that before the commencement of this action the plaintiffs “ requested and demanded of said defendant that he execute and acknowledge" a satisfaction of said mortgage, which he refused to do. Also “ that said instrument is and still remains upon the records of Schuyler county, and is and ■creates an apparent lien and encumbrance, to the amount of $3,000 and interest, upon said land and premises, and the interests of these plaintiffs therein, and is a cloud upon their interests and title thereto.” The complaint contains a suitable prajmr for relief. The testator’s will bears date the 17th day of August, 1878, and contains the following language:
    “ First. My will and desire is that all my just and lawful debts and funeral expenses be paid.
    “ Second. I will, devise and bequeath to my wife, Ann Elizabeth Swarthout, all-of my property, both real and personal, household goods of whatever name or nature, promissory notes, notes, bonds, mortgages, bank bills, &c., to have and to hold for her comfort and support all of the above named property, if she needs the same, during her natural lifetime, if she should outlive me.
    “ Third. My will and desire is that, after the death of my wife, Ann Elizabeth Swarthout, I will, devise and bequeath to the Wayne village Baptist church one thousand dollars, to be put out at interest, and the annual interest is to go toward the supporting a minister to preach for the said church, if there is enough of my property left at the death of my wife.

      11 Fourth. I hereby appoint my friend, William H. Doughty, as my only executor and trustee to this my last will and testament, hereby revoking all former wills made by me.”
    The answer of the defendant “ alleges that on the 9th day of July, 1890, the said-Ann E. Swarthout, then Ann E. Banier, executed, acknowledged, sealed and delivered to this defendant her bond in the penal sum of $6,000, conditioned for the payment of $3,000 to this defendant, his representatives or assigns, live years from July 1, 1890, with interest at six per cent, per annum, payable semi-annually, and in and by said bond she charged her separate estate with the payment thereof, and acknowledged that such indebtedness was contracted for the benefit of such estate ; and for the purpose of securing the payment of such bond, she, Ann E. Banier, executed, acknowledged and delivered to this defendant on the said 9th day of July, 1890, a mortgage, which is the same mortgage referred to in the complaint.” The answer also “ denies that said Ann E. Banier had no right, power or authority to execute, acknowledge or deliver to this defendant the said mortgage for the purpose of binding and charging the fee in remainder of said lands and premises described therein, and he denies that said instrument was or is without consideration, or illegal or void, as against the plaintiffs. ” No opinion is produced from the special term.

      Briggs & Sunderlin, for app’lts;

      James S. Havens, for resp’t.
   Hardin, P. J.

As no evidence was produced upon the trial, and as it is claimed the court dismissed the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action, “ the averments of the complaint as to matters dehors the will must, therefore, for the purposes of the present appeal, be taken as true, and no reference to the answer is necessary or proper.” Smith v. Van Ostrand, 64 N. Y., 280. The formal language found in the mortgage which was executed on the 9th of July, 1890, was sufficient to cover and bind the life estate confessedly of Ann E. during the period from the date of the mortgage to the 29th day of September, 1891.

If she only took a life estate in the premises which expired at her death, there would be no foundation for the plaintiffs’ action or necessity for the same, as the lien created by the mortgage would have ceased by the termination of her life; but the language found in the will, we think, gave her more than a life estate in the premises. She was clothed with power to use, during her natural life, the corpus of the estate for her comfort and support.” Allport v. Jerrett et al., 41 St. Rep., 32, and cases there cited. The testator gave her something more than a life estate; he gave her the right and power to break into the corpus of the estate and use the same for her comfort and support during her natural life. This power of disposition was conditional, however, she being authorized to use “for her comfort and support all of the property given to her by the will on condition that ‘she needs the same during her natural life.’ ” It seemed to have occurred to the testator that there was uncertainty as to how much, under the power thus given, of the property would be converted and applied to her “ comfort and support; ” for in the third provision of the will which gives the $1,000 to the church after the death of the widow, he states that his desire is, that the $1,000 be given after the death of the wife if “ there is enough of my (his) property left at the death of my (his) wife.” Smith v. Van Ostrand, 64 N. Y., 284, and cases there cited; Rose v. Hatch, 125 N. Y., 433; 35 St. Rep., 443; Thomas v. Pardee, 12 Hun, 151. The case is unlike Clarke v. Leupp, 88 N. Y., 228, as the devisee in that case was “ authorized to retain or dispose of the property.” The language found in the will which fell under construction in Crain v. Wright, 36 Hun, 74; affirmed 114 N. Y., 307; 23 St. Rep., 245, differs from the language in the will before us; there the widow was given the land “ to have and to hold for her benefit and support; ” and in the course of Judge Yann’s opinion in the court of appeals in that case, he said “In Henderson v. Blackburn, 104 Ill., 227, and Paine v. Barnes, 100 Mass., 470, cited by the learned counsel for the appellant, there was an express limitation of the gift by the use of the words 1 during her lifetime ’ in the former, and ‘ during her natural life ’ in the latter. In the absence of such express-terms, and when the effort to qualify the estate depends wholly upon necessary implication, a strong and clear case is required to satisfy the statute.”

In the case in hand it cannot be doubted that the widow had power to dispose of the property “ during her natural life ” if she needed the same “ for her comfort and support; ” and for that purpose she was “ to have and to hold the property during her natural life.” Greyston v. Clark, 41 Hun, 125; 4 St. Rep., 4, and cases referred to in the opinion.

The learned counsel for the respondent calls our attention to Vernon v. Vernon, 53 N. Y., 351. In that case the language in the will which fell under consideration gave to the wife “ the house in which I, testator, reside, together with the eight lots adjoining;” this language was followed by a provision that the executors-might sell the property “ and invest the proceeds in good securities of not less than six per cent, per annum, for her benefit during her natural life ; ” and in the course of the opinion of Andrews, J., it was said “it is supposed that the direction, that the executors, in case of a sale by them of the house and adjoining lots, shall invest the proceeds for her benefit 1 during her life ’ indicates an intention to give her a life estate only in that property. The language employed by the testator in the devise to his-wife, although no words of inheritance are used, is appropriate to convey a fee. Disconnected with the power of sale subsequently given, no doubt could be entertained that the gift of the fee was intended. The power of sale was contingent, not absolute. It might never be exercised. There is no limitation of the interest of the wife in the land to the use only ; and if the power of sale should never be exercised, her interest should not be cut down to a life estate by a vague and uncertain implication arising from the direction that, in case of a sale, the proceeds should be invested for her benefit for life. The direction as to investment is to be regarded simply as a careful provision made by the testator for the purpose of securing to the wife the enjoyment of the property given to her; and the proceeds arising from the sale, in case the power of sale was exercised, would belong to her, subject to the trust for investment for her benefit.”

We think the case does not support the position taken by the respondent, in which he asserts that the language of the will before .us gave the fee, “ subject only to the legacy to the church, and enough for her comfort and support during her natural life, if she needed the same.” It is not needful in this case to determine that she did not have “the right to consume for her comfort, and support during her natural life, if she needed the same,” all of the estate and property left by her husband; so that “ after the death of the wife ” there should not be enough of the property left to pay the legacy to the' church. In passing, it may be remarked that probably it was the intention of the testator that the church legacy should encounter the contingencies that might surround her, requiring or authorizing her to use the whole estate for her comfort and support, and that, if she did so, the legacy to the church would fail.

Respondent calls our attention to Schult v. Moll, 132 N. Y., 122; 43 St. Rep., 484, in support of his contention that the fee passed to the widow. Upon examination of that case we find the language quite unlike the language used in the case before us. After the testator had provided expressly for two-thirds of his estate, he added the words, “to my wife, Babetta Hablawitz, one-third, that is to say, her dower right to my estate; ” and those words were construed in connection with the whole phraseology to carry an absolute estate to the wife of one-third, and the conclusion was reached that if the words, “that is to say, her dower right,” were omitted, the devise would unquestionably carry the fee. For the reasons already given, the conclusion is reached that they were not employed for the purpose of restricting or cutting down the estate, and the clause should accordingly be read as devising to Babetta the fee of an undivided one-third of the testator’s real estate.

We see nothing in the case which sustains the position assumed -by the respondent.

(2) But it is claimed by the respondent that “because the courts have limited this form of action to those cases in which the alleged invalidity of the instrument attacked as a ‘ cloud ’ is such that it will not necessarily appear in proceedings to enforce the instrument ” this action cannot be maintained. In considering this question it must be assumed to be well settled by authority “that where the lien is invalid upon its face, or where the invalidity will necessarily appear in any proceeding taken to enforce title under it? then the jurisdiction of a court of equity cannot be invoked to set it aside. Then the owner must wait until his title is actually assailed under the lien, and his defense will always be at hand.” Townsend v. The Mayor, 77 N. Y., 546 and cases therein cited; Carpenter v. Carpenter, 40 Hun, 263, and cases therein cited in the opinion of the court' If the mortgagee were to bring an action to foreclose his mortgage he would be able to establish his right to a judgment of foreclosure which might produce a sale and deed by proving the execution of the mortgage by the mortgagor, his wife, the deceased. In doing so it would not be necessary in the first instance to show any facts aliunde the mortgage; nor would the mortgage upon inspection present any “illegality” which would defeat the same ; nor would any illegality appear in the mortgage if the will of Swarthout was read in evidence. Other facts and circumstances would be necessary to defeat the operation of the mortgage, and a defense to the mortgage would necessarily require facts aliunde the mortgage and the will. If it be assumed that the devisee, Ann, had power to use during her life for her “ comfort and support ” the body of the estate left by her first husband, inquiry would necessarily be made as to whether she exercised that power in her lifetime. Did she by executing the bond and mortgage mentioned in the pleadings, exercise such power ? It may be observed incidentally that the mortgage was given to secure her bond, and the defendant in his answer alleges that the bond was given for $3,000 and that “ in and by said bond she charged her separate estate with the payment thereof and acknowledged that such indebtedness was contracted for the benefit of said estate.” What separate estate was it given to benefit? If given to benefit her separate estate was it given for her “ comfort and support.” When it was given the defendant was her husband and under a legal obligation to supply her with support, and this circumstance tends rather to support the allegation that the bond and mortgage wore given for the benefit of her separate estate, rather than for her “comfort and support.”

However, upon turning to the complaint for the facts upon which our decision must rest, we find the plaintiffs have alleged that the mortgage was not given for her comfort and support, and that the same was “ wholly without consideration, illegal and void as against these plaintiffs and their several interests in said lands,” and that the lands “had not nor had any part thereof been used or disposed of for the comfort and support of said Ann under the provisions of said will and that the same upon her decease descended ” to the plaintiffs. To establish by proof adequate to support such allegations, resort must be had to paroi evidence of facts and circumstances aliunde the will and the mortgage. We think, therefore, the case falls within the rule stated and applied In Carpenter v. Carpenter, supra. Assuming, therefore, that such paroi evidence must be given, which may be lost by lapse of time, as stated in the complaint (which we must assume to be true), Smith v. Van Ostrand, supra, we think a case is made out which entitles the plaintiffs to the interference of a court of equity. Smith v. Reid, 134 N. Y., 578; 48 St. Rep., 156. If the defendant never gave any consideration for the mortgage, took the same as is alleged in the complaint, “ wholly without consideration,” it would seem to be the appropriate office of a court of equity, upon ascertaining such facts, to grant relief at the instance of the owners of the fee.

In delivering the opinion in Schoener v. Lissauer, 107 N. Y., 111; 11 St. Rep., 368, which was an action brought by the heirs •at law to procure the cancellation and discharge of a mortgage, it was said: “ The case made by the complaint and findings was a proper one for the removal of a cloud upon the title of the plaintiffs to the real estate which they had inherited from their mother. The mortgage was certainly an apparent lien upon their title, and the facts which constituted their defense to it could only be established by extrinsic evidence; ” and later on in the opinion it was said, the action is brought “to compel the cancellation of an instrument to which they have a good defense, but which constitutes an apparent lien, and, so long as it remains outstanding, injuriously affects their title, and their defense to which, resting on extrinsic facts to be established by evidence, may be imperiled by the lapse of time and the consequent loss of testimony. * * * It is an acknowledged head of equity jurisdiction, resting on these grounds, to remove clouds upon the title to land, at the suit of the owner of the fee. Such owner has the right to invoke this aid, and to have an apparent, though not real incumbrance, discharged of record at any time while he continues to be owner. * * The cause of action is not the creation of the cloud, but its existence, its effect upon the title of the owner, and his right to have it removed.” The doctrine we have just quoted was referred to approvingly in Smith v. Reed, 48 St. Rep., 162. In the case in hand, as already stated, the complaint alleges that the income and use of the estate devised was sufficient for the comfort and support of the mortgagor, and that no part of the corpus of the estate was needed or used for that purpose, and that before the commencement of this action the defendant was requested to release the premises and discharge the mortgage therefrom, and that he refused to so do; and that he insisted before the action was commenced that the mortgage was a valid, subsisting lien upon the premises, and he has taken that position in the answer that was served in this case. We think the special term fell into an error in refusing to consider the issues joined between the parties after hearing facts bearing upon the merits thereof, and that a new trial should be had where all the questions important to determine the rights of the parties may be presented and fully considered, after the evidence shall be given relating thereto.

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

Martin and Merwin, JJ., concur.


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

text:
    Andrew G. Washbon et al., App'lts, v. Nancy Cope et al., Resp'ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Will—Construction.
    The fourth clause of testator’s will was as follows: “ I give and bequeath to my daughter N. the sum of §10,000;” by the seventh clause he devised all the remainder of Ms property to Ms three children, R. K. and H., “to he divided equally,” but by the eighth clause he provides: “ I devise and direct that in the event of my daughter ÍT. shall die without children, the portion herein given to her shall be given to my sons or their heirs.” Meld, that it was the intention of the testator to provide that the portion of his estate given to ÍT., in the event of her death without issue, should pass to his sons or their heirs, and that the “ words of contingency” used by him do not refer to a death in Ms lifetime.
    (Merwin, J., dissents.)
    Appeal from a judgment of the special term held in Otsego county, dismissing the plaintiffs1 complaint. Andrew Gf. Washbon died March 1st, 1867, leaving a last will and testament bearing date the 31st day of January, 1865. He was in his seventy-seventh year when the will was executed. The first clause of the will provided an annuity for his wife. The second clause devised a farm in trust for his son, John Gf., with the remainder over to the descendants of John “who shall be living at his decease, to whom I devise and bequeath the same so that the descendants of each deceased child, if any, of my said son, John Gf. Washbon, shall take together and per stirpes one share as said deceased child, their parent, would have taken if living, and for the benefit of said descendants of said son, John Gf. Washbon.” The third clause devised a farm to his sou, Henry R., containing 188 acres. The fourth provision was as follows: “ I give and bequeath to my daughter, Haney Cope, wife of John Cope, Jr., the sum of ten thousand ($10,000) dollars.” The fifth clause gave a legacy of $2,000 to John Cope, Jr., husband of Haney. The sixth clause contained a bequest to his second son, Robert, of $12,000. The seventh clause was as follows: “ I give and bequeath and devise all rest, residue and remainder of my property, real and personal; to my three children, Robert Washbon, Haney Cope, wife of John Cope, Jr., and Henry R. Washbon, to be divided equally between them.” “Eighthly: I furthermore desire and direct that in the event of my daughter, Haney Cope, wife of John Cope, Jr., shall die without children, the portion herein given to her shall be given to my sons John Gf., Robert and Henry R, or their heirs, share and share alike.” In the ninth clause there was a provision for his sister and the tenth clause was as follows: “I furthermore direct and authorize my executors hereinafter named to spll. all real estate which I may have, except such as I have otherwise given and devised in this my last will and testament for the benefit of my heirs, at such times as said executors shall deem best.” “Eleventhly. I do hereby nominate and appoint my sons Robert Washbon and Henry R. Washbon, and my son-in-law John Cope, Jr., to be the executors of this my last will and testament, hereby revoking all former wills by me made.” The special term held that the surrogate’s decree was not binding upon Haney Cope; and secondly, that she took under the provisions of her father’s will absolutely under the provisions made in her behalf. ' ■
    Carver, Deyo & Jenkins, for app’lts;

      Burr Mattice, for resp’ts.
   Hardin, P. J.

(1) If Haney Cope only took a life estate or was “ entitled to the use of the legacy during her life and nothing more,” then this action was properly brought and the. plaintiffs were entitled to some relief. Tyson v. Blake, 22 N. Y., 558; Livingston v. Murray, 68 id., 485. Plaintiffs alleged and sought to establish by evidence that their interests would be imperiled without some security required, and to bring their case within the qualified rule stated in Graham v. N. Y. Life Ins. & Trust Co., 46 Hun, 267, and Matter of Fernbacher, 17 Abb. N. C., 339.

(2) When the will was made Nancy Cope was about forty-four years of age, having been married ten years, and was then and still is childless. It is suggested “ the words of contingency refer only to a death in the lifetime of a testator.” In the tenth clause of the will -the testator directs and authorizes his executors “to sell all the real estate ” which he had, except such as he had “given and devised * * for the benefit of my (his) heirs, at such times as said executors shall deem best ” ; and in the eighth clause he provides as follows: “ I furthermore desire and direct that in the event of my daughter, Nancy Cope, wife of John Cope, Jr., shall die without children, the portion herein given to her shall be given to my sons, John G\, Robert and Henry R, or their heirs, share and share alike.” The language used indicates an intent on the part of the testator that the portion given to her, in the event she shall die without children, “shall be given ” either to his sons, John Gf., Robert and Henry R, “or their heirs, share and share alike; ” thus a provision is made for the giving of her share upon her death without children to his sons John, Robert and Henry, and not being content to provide for their reception of it only, he provides still further for the portion being given “to their heirs, share and share alike,” using words apt to control the • estate at a time so far in the future as might be subsequent to the death of John Gr., Robert and Henry R, or either of them.

Considering the language just referred to, as well as the facts and circumstances surrounding the testator at the time of his execution of the will, and the whole language of the instrument, and observing the rule “ that all the parts of an instrument are to be taken together in ascertaining its meaning, and that no part of it should be rejected as inoperative if the whole can reasonably stand together,” Norris v. Beyea, 13 N. Y., 283, the conclusion is reached that it was the intention of the testator to provide that the portion of his estate given to Nancy, in the event of her death witiiout issue, should pass to those of the blood of the testator. And that the words of contingency ” used by the testator do not refer to a death in the lifetime of the testator. Executors of Moffat v. Strong, 10 Johns., 12; Greyston v. Clark, 41 Hun, 125; 4 St. Rep., 4; Nellis v. Nellis, 99 N. Y., 513; Vanderzee v. Slingerland, 103 id., 56; 2 St. Rep., 732; Buel v. Southwick, 70 N. Y., 581; Britton v. Thornton, 112 U. S., 526, and the opinion of Learned, P. J., in Mead v. Maben, 131 N. Y., 255; 43 St. Rep., 167.

In speaking of the rule referring to death without issue to a time prior to the death of a testator, Andrews, J., in Vanderzee v. Slingerland, supra, says, “ But the rule established by the courts applies only where the context of the will is silent, and affords no indication of intention other than that disclosed by words of absolute gift, followed by a gift over in case of death, or of death without issue or other specific event. Indeed the tendency is to lay hold of slight circumstances of the will to vary the constructiunjmd to give effect to the language according to its natura;! import.” See also his opinion in Soper v. Brown, 49 St. Rep., 206.

In Mullarky v. Sullivan, 49 St. Rep., 333, O’Brien, J., in giving construction to a will, says, “ It is perfectly true that in determining what the testator meant every part of the will must be considered, and that the natural and ordinary meaning of the words of a particular clause may be modified by other provisions.”

(3) As the foregoing views if adopted would lead to a reversal, it is not important to consider the effect of the surrogate’s decree declaring a construction of the will in accordance with the views already expressed. There should be a reversal and a new trial.

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

Martin, J., concurs.

Merwin, J.

(dissenting.)—Andrew Gr. Washbon died March 1, 1867, leaving a will dated January 31, 1865. In the first clause of this will he made provision for his wife in lieu of dower. In the second clause he gave and bequeathed to his executors, thereinafter named, a certain farm of about 250 acres upon which liis son John Gr. Washbon then resided, together with the farming utensils and live stock thereon belonging to him at the time of his decease, “ and also the sum of four thousand (4,000) dollars, and also the equal one-fourth part of the residue of my estate as hereinafter mentioned, and also any other’s share or interest which may be hereinafter devised or given to them as trustees, in trust to receive the income, rents, interests and profits thereof, and to apply the same to the use of my said son, John Gr. Washbon, during his life, and, at his decease, to grant, convey, transfer and pay over the same to the descendants of my said son, John Gr. Washbon, who shall be living at his decease,” and he provided that if any deceased child of John left descendants they should take the share their parent would have taken if living. Then came the following clauses:

“Thirdly. I give and devise to my youngest son, Henry R Washbon, the farm in the town of Morris, aforesaid, on which I now live, containing one hundred and eighty-eight (188) acres, more or less, with all the farming utensils and live stock thereon, belonging to me at the time of my decease.

“ Fourthly. I give and bequeath to my daughter, Haney Cope, wife of John Cope, Jr., the sum of ten thousand (10,000) dollars.

“Fifthly. I give and bequeath to my son-in-law, John Cope, Jr., the sum of two thousand (2,000) dollars.

“ Sixthly. I give and bequeath to my second son, Robert Washbon, the sum of twelve thousand (12,000) dollars.

“ Seventhly. I give and bequeath and devise all rest, residue and remainder of my property, real and personal, to my three children, Robert Washbon, Haney Cope, wife of John Cope, Jr., and Henry R Washbon, to be divided equally between them.

“ Eighthly. I furthermore desire and direct that in the event of my daughter, Haney Cope, wife of John Cope, Jr., shall die without children, the portion herein given to her shall be given to my sons, John Gr., Robert and Henry R, or their heirs, share and share alike.”

In the ninth clause he made provision for a home and residence for his sister on the farm he had devised for the benefit of his son John. In the tenth clause lie authorized and directed his executors to sell, at such times as they deemed best, all his real estate except such as he had otherwise devised, and lastly he appointed as his executors his sons, Robert and Henry, and his son-in-law, John Cope, Jr.

His four children named in the will were his sole heirs and next of kin. The testator, at the date of the will, was in his seventy-seventh year, and his daughter, Haney, was then about forty-one years old, and had been married about eight years. She has never had any children. The will was proved, and letters issued to the executors on 12th March, 1867. During the years 1867 and 1868 the executors paid to Haney Cope in full the amount of the legacies bequeathed to her by» the terms of the will, which amounted to the sum of about $13,500, and she has ever since that time had the absolute possession and control of the same, and has always claimed full title under the will. The legacies to Robert Washbon and to Henry R. Washbon were also paid wholly, or to a large extent, about the same time. Henry R. died about 1st April, 1884, leaving children, who are parties defendant. On 9th March, 1890, John Gr. Washbon died, leaving as his only heirs at law and next of kin the plaintiffs herein.

On the 23d Hovember, 1887, the plaintiffs filed in the surrogate’s court a petition asking that the executors be required to file an inventory of the estate, and an intermediate account of their proceedings as executors and trustees. Thereupon a citation was issued to the executors returnable on 16th December, 1887. Thereafter the executors filed an inventory and an account of their proceedings. Objections thereto were filed by the petitioners and evidence was taken before the surrogate and a referee, and the matter was adjourned from time to time to the 20th September, 1888, when the executors applied for a judicial settlement of their accounts. A citation was issued in the usual form, returnable on 30th October, 1888. In this citation Haney Oope was named as one of the parties in interest. A hearing was had on December 4, 1888, and by consent of parties who appeared the accounts, objections and evidence taken and filed in the prior proceeding were admitted in the latter as if originally taken and had therein. On the 26tli July, 1889, a decree was made by the surrogate which, among other things, adjudged that the bequests to Haney Oope by the fourth and seventh clauses of the will are not absolute, but her interest is reduced to a life estate by the eighth clause in the event of her dying without children, and that this contingency relates to her death without children after as well as. before the death of the testator.

The decree recited that the citation was returned with proof of service on the parties therein named, which would include Nancy Cope. The proof of service as filed does not show service on her. Upon the hearing on December 4, the attorney for the executors in the proceedings caused to be entered upon the record that Nancy Cope appeared in such proceedings by him as her attorney, and he thereafter acted 'therein as her attorney. It is, however, found by the special term upon sufficient evidence that the citation was not in fact served upon her, and that the appearance by the attorney was without any authority from her and without her knowledge, and that she never employed him to .appear or act for her and did not know that he assumed to do so.

_ The present action was commenced in May, 1890, and the question is whether Nancy Cope had an absolute title to the legacies which she has received. This depends upon whether the death without children referred to in the eighth clause of the will means ■only a death before the testator. If it does, then the title of Mrs. Cope is absolute. If it does not, then her title is defeasible and the plaintiffs, it may be assumed, would be entitled to some relief. The plaintiffs in support of their position claim (1) that the decree of the surrogate’s court is a binding adjudication upon the subject and, if not, (2) then that the will should in fact be so construed.

It was held at the special term that the decree of the surrogate’s court did not bind Mrs. Cope, mainly on the ground that she was not bound by the appearance of the attorney and that, therefore, the surrogate had no jurisdiction of her person, and that the will should be construed to refer only to a death before the testator. ,

The fund in controversy here was received by Mrs. Cope in 1867 and 1868. The undisputed finding of the court is that the amount she then received was in full of the legacies bequeathed to her by the terms of the will. That being so, she had no interest in fact in the accounting in 1888, as the surrogate had no power to compel her to pay back in case she had received more than she was entitled to. Matter of Underhill, 117 N. Y., 471; 27 St. Rep., 720. She was entitled to nothing farther under the decree, and claimed nothing. There was, therefore, no fund then in the hands of the executors, so far as Mrs. Cope or her legacies were concerned, upon the status of which the surrogate’s court was called upon to pass or in regard to which there was any occasion to construe the clause in question. The only parties who made objections to the executor’s accounts were the plaintiffs, and in these objections no reference was made to the legacies in question, although presumptively the payments thereon entered into the accounts as filed. Indeed, upon the trial before the surrogate, no question seems to have been raised on the subject until the submission of the briefs of counsel upon the final argument. No brief was then submitted on -the part of Mrs. Cope, but on behalf of the executors upon one side and the plaintiffs upon ■other. They were in fact the litigants. There was no issue between the plaintiffs and Mrs. Cope. The latter had held the legacies for twenty years and upwards and claimed absolute ownership. As the surrogate’s court under the rule of the TJnderMU case had no jurisdiction to compel her to refund, it had none to qualify or limit her ownership. That was not a matter within the scope of the accounting, and any opinion or decision on the subject did not conclude Mrs. Cope. Hymes v. Estey, 116 N. Y., 509; 27 St. Rep., 555. It is, therefore, not important to consider whether Mrs. Cope was bound by the appearance for her by the ■attorney.

We then cometo the question of how the will should be construed, In this state it is, I think, well settled that where there is a testamentary gift to the person absolutely and then a subsequent provision that in case of his death without children it shall ..go to other parties, the words of contingency refer only to a death in the lifetime of the testator unless there is something in the context indicating a contrary intent. Quackenbos v. Kingsland, 102 N. Y., 128; 1 St. Rep., 175; Vanderzee v. Slingerland, 103 N. Y., 47; 2 St. Rep., 732; Mead v. Maben, 131 N. Y., 255; 43 St. Rep., 167; Black v. Williams, 51 Hun, 280; 21 St. Rep., 263. The reason given in some cases is that the absolute gift, which is in the first instance made, should not be cut down or limited by .any subsequent doubtful expression, and that as the limit of death without children may refer to a death in the lifetime of the •testator, that should be the construction adopted in order to give full force to both provisions, unless a different intent appears elsewhere.

Does such an intent appear in this case ? The construction claimed by the plaintiffs would in effect give to Mrs. Cope only a life estate. The testator provides in terms a life estate for one of his children with remainder over. His failure to so provide for Mrs. Cope does not at least aid the plaintiffs’ view. Hor does the use in the second clause of the expression also any other’s share or interest which may be hereafter devised or given to them as trustees.” Ho such interest was in fact given to the trustees, and if the testator had then in mind the share of Mrs. Cope, his failure to follow up any idea he may then have had does not take away or affect the meaning which presumptively is to be given to his subsequent language. It is urged that on the theory of the defense the eighth clause was unnecessary, as the legacies to Mrs. Cope in case of her death before the testator would by law have passed to her brothers as intestate property. Assume this might be so, still the provision would prevent partial intestacy and the law prefers a construction which will prevent partial intestacy to one which will permit it. Thomas v. Snyder, 43 Hun, 15; 6 St. Rep., 592. The same feature existed in the Quackenbos case and does not seem to have been considered of any special importance. In that case too, as here, there was one or more life estates provided for, and the failure to provide such for the share in •controversy was held to support the interpretation that the first taker, having survived the testator, took the absolute title.

I fail to find anything in the present case to overcome the presumed intent. It follows that the decision of the special term is-correct and should be affirmed.

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


text:
    Edwin Butterworth et al., Resp'ts, v. Enos Boutilier et al., App'lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    1. Attachment—Affidavits.
    An attachment will not be set aside upon the ground that some of the affidavits used to obtain it have a “want of a title,” where the affidavits “intelligibly refer to the action.”
    3. Same.
    An affidavit for an attachment made by an agent is sufficient where it appears therein that he had knowledge upon the subject, as well as information bearing upon the essential points contained in the affidavits.
    On the 16th of September, 1892, an attachment was issued by a justice of this court, and at the special term held in Onondaga county, October 1, 1892, a motion, on the papers used to obtain the attachment only, was made to set the same aside, which motion was denied. Defendants appeal from the order of the special term held in Onondaga county.

      Smith M. Lindsley, for app’lts;

      Jones & Townsend, for resp’ts.
   Hardin, P. J.

notwithstanding some of the affidavits used to obtain the attachment upon inspection are found to have a “ want of a title,” we think no error was committed in refusing to set aside the attachment on that ground, as the affidavits “ intelligibly referred to the action or special proceeding.”' Code Civil Procedure, § 728.

(2) In the affidavit of Demorest he says, “that he is the agent of the plaintiffsand that “he has charge of the business of these plaintiffs at the city of Hew York, and made the sale of the goods to these defendants for plaintiffs as above set forth, and has personal knowledge of the transfer to plaintiffs of the notes above mentioned, and has in his possession the said notes and the written assignment thereof. * * * And that the amount of the plaintiffs’ claim in said action is $4,409.64, and interest thereon from the day of , 1892, over and above all counterclaims known to deponent or to plaintiffs,” and then the affidavit proceeds to set out the grounds of the causes of action, with allegations that correspond to the averments in the complaint as to the plaintiffs’ causes of action.

In Crowns v. Vail, 51 Hun, 207; 21 St. Rep., 208, in speaking of an affiant who had made an affidavit to obtain an attachment, Judge Yan Brunt says, “He is not required to swear as to counterclaims existing against his assignors; the requirement is that the affidavit must show that the plaintiff is entitled to recover the sum stated therein over and above all counterclaims known to him, and not known to him or his assignors.”

In Cribben v. Schillinger, 30 Hun, 248, the attachment was vacated because the affidavit “ did not show either that the attorney had any knowledge, or the sources of his knowledge, that the amount named was due, over and above all counterclaims known to the plaintiffs,” and in the course of the opinion in that •case Smith, P. J., said; “ As the attorney had no knowledge or information on that point, there was no proof whatever on the subject and that lack of proof was a jurisdictional defect. Ruppert v. Haug, 87 N. Y., 141. We do not say that a sufficient affidavit cannot be made by an agent in any case, but when made by him there should be proof that he has knowledge, or at least satisfactory information as to the essential facts stated by him, and where he acts upon information only, the sources of his information should be stated and the reasons why the affidavit is not made by someone having knowledge of the fact.” We think the case before us is distinguishable from that one and that it falls within the language just quoted; for in the affidavits before us it does appear that the agent had knowledge upon the subject, as well as information bearing upon the essential points contained in the affidavits. And in Gribbon v. Back, 35 Hun, 541, it was held that << The affidavit which § 636 of the Code of Civil Procedure requires the plaintiff to furnish on applying for an attachment need not be made by the plaintiff himself, but may be made by an agent.” That was a case where the agent personally sold and delivered the goods. Globe Yarn Mills v. Bilbrough, 49 St. Rep., 702.

(3) Taking the affidavits altogether undenied, we think they furnished a prima facie case calling upon the officer to exercise his judgment when the attachment was applied for. Conklin v. Dutcher, 5 How. Prac., 386; Van Alstyne v. Erwine, 11 N. Y., 340; Buell v. Van Camp, 119 id., 160; 28 St. Rep., 947; James v. Wilkinson, 39 Hun, 399.

Order affirmed, with ten dollars costs and disbursements.

Martikt, J., concurs; Merwih, J., not sitting.


text:
    Arthur S. Grout, Resp't, v. John B. Cottrell, App'lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    1. Malicious prosecution—Probable cause.
    In an action to recover damages for malicious prosecution, it appeared that defendant was the owner of a saw mill which plaintiff occupied under a verbal lease; that some controversy arose between the parties as to plaintiff’s possession, and a sharp altercation occurred; that thereafter defendant claimed to have missed some shafting and a belt from their accustomed places, and to have been informed by one S. that plaintiff had told him that he had taken care of them, and would like to see defendant get them; that defendant applied for a criminal warrant to a justice of the peace, obtained the same, and plaintiff was arrested for larceny, and after trial before a jury was acquitted, he showing that he had hid the articles froin certain boys. Plaintiff gave evidence tending to show that such criminal proceedings had been maliciously instituted for the purpose of forcing him from the premises, though the evidence was conflicting. Reid, that a nonsuit was properly refused.
    3. Same—Damages.
    In such case a verdict for $700 in favor of plaintiff was not excessive.
    (Merwin. J., dissents.)

      Actios for malicious prosecution. Verdict in the Cortland circuit for $700 in favor of the plaintiff. A motion was made for a ■ new trial on the case and exceptions and denied by the judge presiding at the circuit. From the order refusing a new trial and from the judgment entered in Cortland county for damages and costs, the defendant appeals. From the evidence it appears that, in the year 1888 the defendant was the.owner of a saw mill and grist mill in the town of Scott, Cortland county, and that' some-arrangement was entered into between the plaintiff and defendant in respect to the plaintiff’s occupation of the mill property, and under that arrangement the plaintiff entered into possession, and, as he testifies, under a verbal lease for the use of it for one year from the spring of 1888 until the spring of 1889, unless the same should be sooner sold by the defendant. Some controversy arose about the 18th of November, 1888, between the parties as to the plaintiff’s possession and rights, and the defendant and the-plaintiff had a sharp altercation, exhibiting heated temper and using warm words towards each other in respect to their rights in the premises.
    On the 24th of November, 1888, the defendant claimed to have “ missed from their accustomed places a piece of shafting, weighing about fifty pounds, used in running the saw,- also a belt used for the same purpose." He also claimed that he had made inquiry in respect to the same and had been informed by one Sweet that, the plaintiff “ told him that he had taken care of that shafting and belting and would like to see Cottrell get them.” The defendant applied to a justice of the peace in the town for a criminal warrant and obtained the same on his complaint and caused the arrest, and prosecution of the plaintiff for the alleged crime of larceny. The plaintiff, having been arrested, was taken before the magistrate and pleaded not guilty, an adjournment was taken for two days and the plaintiff went to the village of Cortland and consulted a lawyer and returned on the adjourned day, to wit, the 26th of November, and asked for a venire and without counsel proceeded to the trial before a justice and a jury and a verdict of “not guilty’’ was rendered and entered in the justice’s minutes and the plaintiff here was discharged. The plaintiff at the trial before the justice and upon the trial at the circuit gave evidence tending to show that, having been antioyed by “ the boys’’ running the mill in his absence, he dropped the piece of shafting into the sawdust, beneath and had hidden the belt; he also claimed the right to do so as the lessee of the premises, having the possession, control and management thereof under the arrangement made with the defendant. And upon the trial of this action gave evidence tending to show that after the quarrel between the parties which commenced about the 18tli of November, the defendant maliciously instituted the criminal proceedings and caused his arrest for the purpose of harrassing the plaintiff and of forcing his removal from the premises in question. Upon many of the main features of the troversy between the parties the evidence was conflicting.

      B. A. Benedict, for app’lt;

      A. P. Smith, for resp’t.
   Hardin, P. J.

Upon the evidence given upon the trial the court committed no error in refusing to grant a non-suit, and in submitting the questions arising upon the evidence to the jury. Wass v. Stephens, 128 N. Y., 123; 38 St. Rep., 882. In the case just cited, Andrews, J., in delivering the opinion, said “there was at least evidence to go to the jury upon both the question of probable cause and of malice. While it is true that what constitutes probable cause, where an arrest has been made, does not depend upon the question whether an offense has been actually committed, or upon the innocence of the accused, but upon the prosecutor’s belief of his guilt, based upon reasonable grounds, 1 Cush., 288; Fagnan v. Knox, 66 N. Y., 525, nevertheless, applying this test in this case, the jury were justified in their conclusion that the defendant had no reasonable ground for believing that the charge made by him was true.”

The learned counsel for the appellant calls our attention to Anderson v. How, 116 N.Y., 336; 26 St. Rep., 787. Attention was given to that case'by Andrews, J., in the opinion from which wo have just quoted, and we need make no further comment upon it.

(2) Appellant urges that it was error to admit the justice’s docket in evidence to prove proceedings, in the criminal case. The justice was dead and his docket was produced by the town clerk, and upon an inspection of the contents thereof nothing is found therein beyond the formal entries of the issuance of the warrant on the 24th of November, 1888 ; the arrest and return of the prisoner; his plea of not guilty; that subpoenas were issued to both parties ; that an adjournment was had to the 26th of November; and that on the 26th of November a venire was issued and a jury summoned and trial had; and the names of the jurors; the names of the witnesses sworn and the verdict returned November 27th, of, not guilty, and that the defendant was discharged. All the material facts shown by the record appear in the testimony before the objection and exception had been taken to the admission of the docket; we are, therefore, of the opinion that the exception presents no prejudicial error.

(3) When plaintiff was upon the stand he testified that he purchased the mill of the defendant twenty-seven years previous, and that he paid interest on $3,000 for upwards of twenty years. The evidence was objected to and the court observed: “ That may stand, that he paid a portion of it.” An exception was taken.

When the defendant was upon the stand his counsel proposed to show the value of the property to be $4,500, when he purchased it in 1869. The court observed : “ I don’t think it is important on either side; I don’t think the subject is competent. I will strike that evidence of value and payments out if there is any importance to it.” Thereupon the defendant’s counsel observed: “ What we propose to show is that the property was worth $4,500, and cost this man that.”

Thereupon, the court observed: “ I don’t think it is competent. I will strike out the plaintiff’s evidence of what he paid for the purpose of saving rights that you have in the matter; the amount they paid.; statements who paid it; ” thereupon the plaintiff’s •counsel observed: “I thought it was competent to show his good faith in the matter that he bought the property and kept it for •quite a long time.’’ The case then states, viz. : “The court to plaintiff’s counsel: Do you insist on his evidence stating the amount he paid? Plaintiff’s counsel: Yes, sir. The Court: Then I think I will let it stand, and let in the other, and give you an exception.”

Thereupon the defendant’s counsel propounded the following question: “Now you may state what that property was worth? A. $4,500; a little over $4,500. (Asked to strike out the amount he paid.) The Court: I refuse to strike it out on the ground you insisted on the evidence being kept in that the court says is incompetent.” We think, under the circumstances, the defendant could not complain of the rulings made by the court on the subjects embraced therein.

(4) Appellant’s learned counsel has called our attention to some ■other exceptions taken during the progress of the trial. After a careful examination of the case and the questions made in respect to the exceptions, we are of the opinion that no error is presented warranting an interference with the trial.

(5) We are urged by the learned counsel for the appellant to rule and hold that the verdict is excessive. It was delivered by a jury after a full consideration of all the circumstances disclosed by the evidence bearing upon the intent, motive and acts of the defendant, and after a charge made in respect to the evidence which presented the law quite as favorable to the defendant as he was entitled to have the same delivered, and the question of damages was one fairly within the discretion of the jury. We are disposed to say as the court said in Kingsland v. The Mayor, etc., of New York, 39 St. Rep., 433, “Under the circumstances of the case, the amount awarded by the jury was not excessive, and on going over the whole record we find nothing whatever which should induce us to reverse the judgment entered below.”

Judgment and order affirmed, with costs.

Martin, J., concurs; Merwin, J., dissents.


text:
    Eliza Dering, Adm'rx, App'lt, v. The New York Central & Hudson River Railroad Co., Resp't.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    ¡Negligence—Contributory.
    Plaintiff’s intestate, who was employed by defendant in its freight yard as a switchman, after operating his switch to allow four cars to pass, with the engine that had pushed them in full view on the adjoining track, attempted to pass from his switch on to the track on which the engine was slowly following the cars he had switched, apparently attempted to cross in front, was heard to helloa, and was found under the wheels of the truck of the engine, dying shortly from the injuries received. Deceased was a careful, temperate man, sixty-two years old. Held, that a non-suit was properly granted.

      Appeal from a judgment entered in Oneida county upon a non-suit granted at the circuit in that county. Plaintiff’s intestate was in the employ of the defendant for a period of about thirty years, and was about sixty-two years of age when, on the 3d of March, 1890, he was injured in the freight yard at Bast Utica by being run over by an engine and tender belonging to the defendant, then in use in its business in said freight yard. The deceased was a switchman. About four o’clock in the afternoon of the 3d of March, the deceased, after operating his switch to allow four cars to pass, with the engine that had pushed the cars in full view on the adjoining track, for some reason not disclosed by the evidence, attempted to pass from his switch north on to the track on which the engine which produced the injury was slowly following the cars he had switched. ISTo witness described his movements just before the injuries were received.
    Apparently he attempted to cross in front of the moving engine, and he was heard to helloa and was found under the wheels of the truck of the engine. As soon as his voice was heard by the engineer in charge of the engine the engine was stopped, and it was found that one wheel" of the truck had passed over his right arm and leg, and the other wheel stood on the left foot so that the engine had to be started to extricate him. He was picked up by the servants of the defendant and shortly thereafter died from the injuries which he received. Apparently the deceased was a careful, temperate, prudent man. He was seen, just before he was injured, sitting on the branch near the round house on the second or third branch. The second switch from the round house is on track number one. There was an engine east of the deceased and the engine blew for the deceased to come and shift a branch on track number four, and he thereupon started to go across, looking toward the east, toward the engine that was blowing; the engine that injured him stood west of him on track number two. It is claimed, in behalf of the plaintiff, that at the time the accident occurred the fireman was not on the engine, but had temporarily gone therefrom to secure oil. The engine was moving, apparently, at the rate of three or four miles an hour. At the close of the evidence the defendant moved for a non-suit on several grounds, among others, that: “ The evidence fails to show affirmatively that there was no negligence on the part of the deceased producing or tending to produce the injury; ” also, “ The evidence shows that ordinary and usual care and prudence on the part of the deceased would have avoided the injury which produced his death.” Also, that “The evidence fails to show that the defendant was guilty of negligence that alone produced the injury claimed uponalso, “ The deceased, in accepting and continuing in the employment of the defendant, assumed all the hazard and risk of the situation from which it is claimed that he was injured.” When the motion for a nonsuit was granted the plaintiff took an exception.

      M. V. B. McGrawn for app’lt;

      OyrusD. Prescott, for resp’t.
   Hardin, P. J.

Plaintiff’s evidence failed to show any specific act or definite omission on the part of the defendant which warranted a finding that the injury was occasioned solely by the negligence of the defendant towards its employees. Morrison v. The N. Y. C. & H. R. R. R. Co., 63 N. Y., 643.

In Dobbins v. Brown, 119 N. Y., 193; 28 St. Rep., 957, in speaking of actionable negligence, it was said that it “ must be proved, either by direct evidence or the proof of facts from which the inference of negligence can be legitimately drawn by the jury. It cannot be supported by mere conjecture or surmise, but must be made referable by the proof to some specific cause or defect. It has been held that the mere fact that an accident occurred which caused an injury is not generally, of itself, sufficient to authorize an inference of negligence against a defendant. Curtis v. R. & S. R. R. Co., 18 N. Y., 534.”

In Powers v. The N. Y. C. & H. R. R. R. Co., 38 St. Rep., 561; S. C. affirmed, 128 N. Y., 659; 40 St. Rep., 979, it was said by Martin, J., speaking for this court, viz.: “ While it must be admitted that negligence is generally a question for the jury, still it is only when the facts would authorize a jury to find it that it should be submitted to them. Sutton v. The N. Y. C. & H. R. R. R. Co., 66 N. Y., 243,” and that learned judge in his opinion used language and stated numerous authorities that are pertinent to the question now under consideration.

(2) Plaintiff was called upon to prove by affirmative evidence, or to produce facts and circumstances, coupled with the occurrence of the accident, which would indicate or tend to establish a freedom of the deceased from contributory negligence, and that the deceased used care and prudence preceding and at the time the injuries occurred. Tolman v. S., B. & N. Y. R. R. Co., 98 N. Y., 198. It is true, as claimed by the appellant, that in considering this motion we must give the most favorable construction of and inference that can be reasonably drawn from, the evidence to the plaintiff. Galvin v. Mayor, etc., of New York, 112 N. Y., 230; 20 St. Rep., 569. With that rule in mind we are unable to say that the facts proved fairly tended to support an affirmation that the plaintiff’s intestate was free from negligence. Cahill v. Hilton, 106 N. Y., 512; 11 St. Rep., 26.

The deceased had been in the employ of the defendant, engaged in the business which occupied his attention on the day he received his injuries, for many years, and was conversant with all the incidents and dangers surrounding the occupation. And in Gibson v. Erie Railway Co., 63 N. Y., 449, it was said of an employe, viz.: “ If he accepts service with knowledge of the character and position of structures from which employes might be liable to receive injury, he cannot, * * * in case of injury, hold him liable.” The same doctrine has been repeated in numerous cases. See Cahill v. Hilton, 106 N. Y., 518; 11 St. Rep., 26; Shaw v. Sheldon, 103 N. Y., 667; 3 St. Rep., 679. And in Powers v. The Central Road, supra, Martin J., said: “ Where a servant enters upon an employment from its nature necessarily hazardous, he assumes the usual risks and perils of the service, and also those that are known to him or which are apparent to ordinary observation.”

In Williams v. D., L. & W. R. R. Co., 116 N. Y., 629; 27 St. Rep., 760, the rule was adverted to and stated in the following language : “ The rule is, that a servant who enters upon employment from its nature hazardous, assumes the usual risks and perils of the service, and of the open, visible structures known to him, or of which he must have known had he exercised ordinary care and observation.”

(3) When Walyers, a witness who was near the scene of the accident,- was being examined, he testified as follows: “ I found him with his right arm cut off, and his right leg and his left foot was right under the tank of the engine when I found him; the engine had to slack ahead a little to let him out; his left foot was smashed through his boot when I found him; he asked me then how he got there, and I couldn’t tell him.” This last expression was objected to, and the court remarked, “Leave that out.” An exception was taken. We think the exception presents no error. First, it was a declaration of the deceased sought to be given in favor of the plaintiff; second, if it had been allowed to remain in the case, it is not apparent that it would have produced a different ruling upon the motion for a nonsuit than the one that was made at the circuit. We. think the trial judge committed no error in his rulings at the circuit, and that the nonsuit there granted must be allowed to remain.

Judgment affirmed, with costs.

Martin, J., concurs; Merwin, J., not sitting.


author: Hardest, P. J.

text:
    Edward J. Davis, Resp't, v. Warren C. Willis, App'lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Conversion— Evidence.
    The complaint alleged that plaintiff was the owner of twenty tons of hay worth ten dollars per ton, that defendant converted said hay to his own use and to plaintiff’s damage of $200. The answer alleged that defendant sold to V. certain lands by written contract, which was forfeited and became void and all rights thereunder surrendered by V. to him prior to the time of the taking of the hay. Plaintiff testified that he purchased the hay of V. and gave his note in payment, and then the note was offered in evidence and admitted under objection. Held, no error.
    Appeal from a judgment of the county court of Delaware county entered on a verdict for the plaintiff for $129.76 damages, taken in the county court on the 26th day of October, 1891. In the notice of appeal dated March 10, 1892, from the judgment entered on the 4th of March, 1892, it is stated: “ And appellant intends to bring up for review upon such appeal the order herein, dated the 29th day of October, 1891.” Ro such order is found in the appeal book. Plaintiff’s complaint alleges that the plaintiff was the owner of twenty tons of hay, on the so-called Oliver Baxter farm, in the town of Masonville, Delaware Co., R Y., worth ten dollars per ton ; that the defendant converted said hay to his own use to the plaintiff’s damage of $200. The action was brought in the justice’s court, and in the defendant’s answer it is alleged that in February, 1886, he sold to one Hiram Vanderhule, by a written contract, certain lauds belonging to the defendant; and that subsequently the contract was forfeited and declared void, and it, and all rights under it, surrendered by Vanderhule to the defendant prior to the time named, etc.
    The action was tried in a justice’s court and a verdict was rendered for the plaintiff of fifty dollars ; an appeal was taken to the county court and it was tried there in March, 1888, and a verdict was recovered for the plaintiff of $120; an appeal was taken to this court and the judgment was reversed principally on the ground that an error was committed by the trial judge in the course of his charge to the jury. The cause was again tried in county court on the 19tli of October, 1891, resulting in a verdict for the plaintiff for $129.76. Judgment was entered thereon and the appeal therefrom was taken to this court.

      Warren G. Willis, in person, for app’lt;

      James R. Baumes, for resp’t.
   Hardest, P. J.

Upon the appeal before us the appellant is not entitled to have us review the facts and determine whether the verdict was against the weight of evidence, as there is no order denying a motion for a new trial in the appeal book. Matthews v. Meyberg, 63 N. Y., 656; Hume v. Mayor, 74 id., 268; Burger v. Burger, 111 id., 528; 20 St. Rep., 105; Momeyer v. New Jersey Sheep & Wool Co., 20 N. Y. Supp., 814; 49 St. Rep., 414; Smith v. Simmons, 21 Supp., 47; 49 St. Rep., 302; Carlson v. Winterson, 20 N. Y. Supp., 897; S. C., 49 St. Rep., 39. There is, however, an order in the appeal book made at the close of the first trial in the county court which we reversed on the former appeal. 57 Hun, 200; 32 St. Rep., 529. That order cannot be considered in reviewing the last trial. We have, therefore, before us on this appeal only the exceptions taken during the trial, as the appellant’s appeal from the judgment is only effectual in bringing them before us. Boos v. World Mutual Life Ins. Co., 64 N. Y., 236; Third Avenue Railroad Company v. Ebling, 100 id., 98. The trial* seems to have proceeded in accordance with the views expressed in our opinion on the former appeal. 57 Hun, 200 ; 32 St. Rep., 529. In presenting the case to the jury the trial judge kept within the principles stated in the opinion „of Judge Martin, speaking for this court, and no exception was taken to the charge.

(2) The jury found a verdict “for the plaintiff for fifteen tons -of hay, at $7, equal to 105,” and allowed interest upon that amount. Were there any rulings made which were prejudicial to the defendant ? When the plaintiff purchased of Vanderhule the contract, and the property he claims to recover for, he paid for the purchase by giving a note with a surety on the 24th of October, 1887. That note was offered in evidence, and defendant objected to it and took an exception to the ruling admitting it_ in evidence. The witness had already testified without objection that he gave the note and that it had been paid. We think the defendant was not prejudiced by the ruling. In Roe v. Hanson, 5 Lansing, 304, the price at which a cow sold at private sale was held to be inadmissible; and the case does not contain anything which condemns the ruling before us.

(3) Plaintiff called McKinnon as a witness, who testified that he went to the bays where the hay was stored; and added: “While there, Davis, Yanderhule and I looked at the hay in the barn and measured the mows; Yanderhule and Davis measured the hay in my presence, and they called off the different dimensions of the bays.” Thereupon the following question was propounded to the witness: “ Q. "What were the size of those bays, Mr. McKinnon?” This was objected to “ upon the ground that it does not appear that he knows; ” the court ruled, viz.: “He may answer.” Defendant took an exception, and the witness answered “ They were thirty feet long and fifteen feet wide; I saw the height of the hay; this was a double floor or overshot barn; the hay was above the upper floor about three feet; it would average three feet on both sides; some places a little more; it was seven feet between the floors; I observed the quality.” We think the exception presents no error.

(4) Plaintiff called as a witness Mr. Sisson, who stated that he was a farmer, and that he lived within about a mile of the farm upon which the hay in controversy was situated; and that be had attended a sale of hay that fall in the neighborhood of the farm, and that he had heard the quality of this hay described. He was then asked to give an opinion of the value of the hay; an objection was taken to the question by stating “ That the evidence called for is incompetent; ” the objection was overruled and an exception was taken, and the witness answered: “ The average price would be, I should judge, nine or ten dollars; between nine and ten;” an exception was taken and the witness added:

“ I think the fair market price was nine dollars.” There was no motion to strike out the witness’ answer last given, and from several other witnesses like testimony was given and the jury found specifically the value of the hay to be $7.00 per ton. Under such circumstances we are of the opinion that the defendant was not prejudiced by the ruling.

(5.) During the cross examination of the defendant, after he had stated that the contract was cancelled in the early dajm of July, 1887, the following question was propounded to him : “Q. How what time was this pretended or alleged cancellation of the contract?” This was objected to by the defendant on the ground that it “assumes that the contract is a pretended one; it is not proven.” The objection was overruled and an exception taken; thereupon the witness answered, viz : “Itwas early in July, perhaps the 5th, 6th or 7th, I can’t tell the date; I made no particular minute or memorandum. I have none that I know of that I can tell the precise date. I know it was early in July. I did not state on the other trial that it was the 9th ; I want the scale to slide a few days if you want it stated in that way.” We think the defendant cannot successfully maintain that an error was committed or that he was prejudiced by the ruling.

(6.) During the further cross examination of the defendant the following question was propounded: “ Q. They put you on the list in the first place for $10,000?” that is, the assessors.. This was objected to as entirely immaterial; it was overruled, an exception was taken, and the answer which the witness made was as follows: I didn’t know only from hearsay. I heard they had. I don’t think I went before them later, on what is called grievance day.” We think the ruling presents no prejudicial error.

(7.) In the assignment executed by Yanderhule on the 24th day of October, 1887, which transferred to the plaintiff the contract as to the land, there were words broad enougli to cover the hay on the farm. The assignment purported to transfer “ all and every claim I (Yanderhule) have to the personal property mentioned in said contract, and to the hay now in the barn on said farm, or that, was cut on the farm this year and in other places of storage, etc.” The jury, in effect, have found that Yanderhule owned the i hay in question at the time the assignment was made. We think there was some evidence tending to support that claim.

(8) Several witnesses were called to impeach the plaintiff’s general character. The witness, Bourne, among other things on that subject, stating as to the plaintiff, viz.: “ I am sorry to say I could' not believe him under oath as soon as I would men in general.” During the cross-examination considerable latitude was allowed by the court, and the following questions were propounded to him:

“ Q. Good men are spoken ill of in that town, are they not ? ” This was objected to as improper, immaterial and irrelevant; the objection was overruled; an exception taken, and the witness answered: “They are.” Then followed the question:

“ Q. Haven’t you heard as good men as Mr. Willis berated there ? ” This was objected to as immaterial and irrelevant, and the objection was overruled, and an exception taken, and the witness answered: “ I have.” Before this testimony was given, Mr. Willis had been sworn as a witness. Then the defendant called one Wells as a witness as to the general character of the plaintiff, and during his direct examination he said: “ I would not believe him under oath as soon as men in general.” During his cross-examination he was asked, to wit, “Citizens in that vicinity, the best of your citizens, are spoken against sometimes, are they not; some fault found? ” This was objected to as immaterial and irrelevant; the objection was overruled, and an exception was taken and the witness answered: “I dare say they are; I presume they are.”

“ Q. You have heard as good men as Mr. Willis criticized very severely, have you not? ” This was objected to as immaterial; objection overruled, and exception taken, and witness answered: “ Certainly I have.” While we can see that the latitude allowed in cross-examination was liberal, and that the trial judge might, without impropriety, have exercised his discretion by excluding some of the answers made, we are not.prepared to say that he committed such an error as requires us to disturb the verdict. Some other exceptions are found in the appeal book, and have been considered, and we are of the opinion that none of them require us to interfere with the verdict. Evidence was given strongly tending to support the theory of the plaintiff. The trial judge seems to have laid down the law as favorable to the defendant as he was entitled to have the same stated. The verdict must be allowed to stand as a fair determination of the rights of the respective parties.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.