text:
    ELLIOTT L. GREY, Respondent, v. ALBERT B. VORHIS and DAVID T. TILLOTSON, Appellants.

      Mechanic's lien — 5ill of particulars — verification of.

    ■Where, at the time of serving a notice to foreclose a mechanic’s lien, a bill of particulars was served, sworn by the claimant to be “in all respects true, to the best of his knowledge and belief.” Held, that the verification was sufficient.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to foreclose a mechanic’s lien; at the time of serving the notice provided for by the statute, a bill of particulars was served, to which was attached the following verification :
    Steuben Countt, ss. :

    Elliott L. Grey, ss., above named claimant, being duly sworn, says that the bill of particulars above mentioned is in all respects true, to the best of his knowledge and belief.
    E. L. GREY.
    Sworn to and subscribed before me this 15th day of February, 1873.
    J. H. Consolas, Justice of the Peace.

      Burrell c§ Soule, for the appellant.

      A. PL. Burrell, for the respondent.
   E. DaRwin Smith, J.:

The referee, I think, decided correctly the several questions raised on the trial, and his findings appear warranted by the evidence.

The bill of particulars annexed to the plaintiff’s notice of claim, served on the defendant in the mode prescribed by the statute for the commencement of this action, was properly verified. This notice and the bill of particulars are governed by the rules of pleading prescribed by the Code. (Duffy v. McManus, 3 E. D. Smith, 658.) The bill of particulars in these cases (Act of 1873, chap. 489, § .10), may be “ verified by the oath of the claimant or his attorney, to the effect that the same is true.”

The attorney could not ordinarily make a verification safely more positive than the one made in this case. It is in the form prescribed for verification of pleadings by the Code. If the legislature had intended to require a verification in the form of a positive allegation that the bill of particulars was true, without qualification, they would have required it to be made by the party who alone could ordinarily make such verification.

The verification stated that the bill of particulars was in all respects true, to the best knowledge and belief of the affiant. No man could testify on the point, safely and honestly, more positively, or should be required to do so.

The plaintiff might recover less than the amount claimed in his notice and bill of particulars. The notice of lien was duly filed in the county clerk’s office, and entered in the lien docket therein,- and properly proved.

The judgment should be affirmed.

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

Judgment affirmed.


source: Caselaw Access Project

author: MulliN, P. J. :

license: Public Domain

text:
    GEORGE S. HAZARD, as Receiver of THE NEW YORK AND ERIE BANK, Respondent, v. JOHN B. MANNING, Appellant.

      Bailee — lien of — not lost, because of not being expressed in receipt.

    One Briggs, the owner of certain barley, which he had transferred to the plaintiff as collateral to a loan, being desirous of having the same malted, an agreement was entered into between Briggs, the president of the plaintiff, and the defendant, by which the latter agreed to malt the barley and receive twenty cents per bushel for so doing. At that time he delivered to the plaintiff a paper, by which he agreed to hold the malt subject to the written order of the plaintiff, nothing being stated therein as to the charges for malting or any lien therefor. The defendant having received and malted the barley, refused to deliver the same until his charges for so doing were paid. Held, that the law gave him a lien upon the mall for the amount agreed to be paid, and that the mere absence of a reservation of such lien in the receipt, by which he agreed to hold it subject to plaintiff’s order, did not deprive him thereof.
    Appeal from a judgment of the Superior Court of Buffalo, entered upon a verdict for the plaintiff directed by the court.

      H. 0. Day, for the appellant.

      E. O. Sprague, for the respondent.
   MulliN, P. J. :

This action was commenced in the Superior Court of Buffalo, where judgment was rendered in favor of the plaintiffs.

Prior to the 4th day of November, 1871, Henry F. Briggs was indebted to the N. T. and Erie Bank for loans of money, to secure which Briggs had given a quantity of whiskey as collateral security.

The president of the plaintiff applied to Briggs for further security, and he informed the president that he had in the Niagara elevator a quantity of barley that he would turn out for that purpose. Briggs held the receipt of the elevator company for the barley.

Briggs had talked of malting the barley, and he called on defendant and requested him to go with him to the bank and there they met Cansón, the president of said bank.

Defendant was engaged in the business of converting barley into malt, at his malt-house in Buffalo.

Ganson inquired of defendant the amount of malt that could be made from 1,500 bushels of barley, and was told they would make 1,725 bushels of malt. Defendant told him the price of malt and of barley, and it was arranged that Briggs should transfer to defendant the elevator receipt, and defendant should go on and malt the barley and give to the bank a paper, of which the following is a copy:

“ Buffalo, Eov. 4, 1871.
“Received in store in my malt-house, which is situated on the Terrace, in this city, from Ií. F. Briggs, 1,725 bushels of malt, which I am to hold subject to written order of the New York and Erie Bank of this city. I am to assume no risks as regards fire or ■frwa e»Iojv»on4"q
(Signed) “JOHN B. MANNING.”

Briggs indorsed and delivered to defendant the elevator receipt.

The defendant testified on the trial, that at the interview in the bank between Briggs, defendant and Ganson, plaintiff’s president, the latter requested defendant, as he, Ganson, had the papers, and all the papers made in Briggs’ account, to give him a warehouse receipt for the malt, giving as a reason that he waiated the matter closed up that day. He, Ganson, requested Briggs to transfer to defendant the elevator receipt and obtain a policy of insurance on the malt, which should be secured to the defendant. The receipt was indorsed over to the defendant, together with a policy of insurance.

The defendant got the barley and malted it and notified Ganson that he had so done, and presented to him a bill for the same. Ganson made excuses for not paying, on that and on several subsequent occasions, and finally, refused altogether to pay the bill, saying that Briggs was the person who should pay.

While the defendant was trying to get pay for malting from Ganson, he told him (Ganson) he should charge for storage; and in reply to the inquiry as to how much, he told him one-fourth of a cent a bushel for each ten days or part thereof.

This charge Ganson declined to pay, but stated his willingness to pay a fhir price for storage, and made an offer of an amount which defendant refused to accept..

Plaintiff, on December the 8th, 1873, sold to one Matthews the malt mentioned in the foregoing receipt, and gave him an order on defendant requesting him to deliver the same to said Matthews.

The order was presented, and defendant declared his readiness to deliver on payment of his charge for malting and storage, but Matthews refused to pay the same and defendant refused to deliver. It was on this occasion that Ganson said he was willing to pay a reasonable price for storage ; and something was said and done about making a tender to the defendant, but no specific sum seems to have been tendered.

The plaintiff’s counsel objected in time to the admission of the parol evidence, as to what transpired at the bank between Ganson, defendant and Briggs as to the transfer of the elevator receipt, malting the barley and the price of the same, as it tended to contradict the writing signed by defendant and delivered to Ganson, a copy of which is above given.

The evidence was first taken subject to the objection, and after-wards the objection was sustained and the evidence excluded.

The defendant’s counsel excepted, on the ground that the evidence excluded does not tend to contradict but to explain the writing.

The counsel for the defendant then asked the court to direct a verdict for the defendant, on the ground that the undisputed evidence showed that plaintiff had failed to make a proper tender to discharge defendant’s lien on the malt. .The court refused and defendant’s counsel excepted.

The defendant’s counsel then asked leave to go to the jury on the question of tender, which was refused, and defendant’s counsel excepted.

The court held that the only question on the evidence, on which defendant could go to the jury was the one of damage, to which ruling defendant’s counsel excepted.

The defendant moved at the close of plaintiff’s evidence for a nonsuit, on the grounds :

First. That plaintiff failed to make out a cause of action.

Second. There is no evidence of any tender.

Third. That no tender was made, according to law, of any amount.

The motion was denied and defendant’s counsel excepted.

The court directed the jury to find the title and right of possession in the plaintiff, and a verdict for the return of the property to the plaintiff; and if a return could not be made they should find for plaintiff for the value of the property at the time it was demanded of the defendant, with interest from the time of the demand ; the amount the defendant was entitled to for storage at the same date, with interest. To each of said instructions defendant’s counsel excepted.

The defendant’s counsel asked the court to charge the jury that it was in their discretion whether interest should be allowed. The court refused so to charge, and defendant’s counsel excepted.

The jury found a verdict as directed by the court. Judgment was entered thereon, and from it the defendant appeals to this court, two of the judges of the Superior Court being prohibited by law from hearing the case.

The important question-in this case is, had the defendant alien on the malt for his charges for converting the barley into malt?

The lien for storage was conceded on the trial, and the amount was allowed by direction of the court, by deducting it from the value of the malt.

The barley was transferred to the defendant by the consent of Briggs and Ganson, to be made into malt by him, and for his services he was to receive twenty cents per bushel. Briggs and the bank, represented by Ganson, were the only persons who had any interest, legal or equitable, in the barley. There was no agreement that a lien for the labor, etc., should not be had by the defendant for his charges. Under .such circumstances the defendant had, and has a lien upon the malt, and he is entitled to the possession of it until that lien is discharged by payment of his charges.

Kent, in his Commentaries (vol. 2, 635), says: It is now the general rule that every bailee for hire, who by his labor and skill has imparted an additional value to the goods, has a lien upon the property for his reasonable charges. * * * The same right of a particular or specific lien applies to a miller * * * or whosoever takes property in the ■ way of his trade or occupation, to bestow labor or expense upon it.”

The answer of the plaintiff to this claim of lien is, that by the writing given by defendant to the plaintiff, there is an absolute agreement to deliver the malt without regard to a lien for malting.

It is true that the writing is silent as to a lien for charges, and that it contains an agreement to deliver the malt to defendant, on demand, upon the written order of the plaintiff.

No express agreement was necessary to create the lien; the law gave it to the defendant upon his converting the barley into malt; and that lien continued until waived or dischai’ged by payment.

It was not necessary to the right of defendant to a lien that he should reserve it in the writing. It was an incident of the agreement between the parties, and the law implies that the delivery promised to be made was upon payment of the charges, in the absence of any express waiver, or circumstances from which a waiver could be fairly inferred.

It is insisted by the plaintiff’s counsel that the evidence of the defendant as to what transpired at the time the writing was signed and delivered by the defendant was incompetent, as it contradicted the writing given by the defendant, in that the writing contemplated and provided for a delivery of the malt without any condition whatever, whereas the parol evidence obliged defendant to deliver to the plaintiff only on payment of the charges of defendant in making the malt.

If I am right in holding that the law gave the lien to the defendant, and not the contract between the parties, the parol evidence did not vary or contradict the writing.

The defendant, having a lien on the malt, was entitled to hold it until it was discharged by payment.

There was no tender of the charge for malting, and there was therefore no question for the jury on that subject.

The judgment must be reversed and a new trial granted, costs to abide event.

Present — MulliN, P. J., Smith and Taloott, JJ.

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


author: MulliN, P. J.:

text:
    LEWIS R. MAXON, Respondent, v. AARON G. REED, Appellant.

      Justice's Court — objections as to jurisdiction, regularity, etc., toteen in — duty of County Court to pass upon.

    Upon an appeal to the County Court from a judgment rendered in a Justice’s Court, it is the duty of the former, when a new trial is to he had before it, to pass upon all questions raised in the court below as to the jurisdiction of the justice, the regularity of the process, its service and return, and whether all the proper parties are before the court; and in case it refuse so to do and compels the appellant to proceed with a new trial, upon which a judgment is rendered against him, the General Term will, upon an appeal from such judgment, reverse the same and direct a new trial, even though such objections were frivolous and devoid of merit.

      Appeal from an order of the County Court of Orleans county, denying a motion for a new trial made upon a case and exceptions.

      Reynolds dé Grandell, for the appellant.

      Geo. Bullard, for the respondent.
   MulliN, P. J.:

The plaintiff brought an action in a Justice’s Court of the county of Orleans, to recover of the defendant certain penalties imposed by sections 22, 28 and 40 of chapter 721 of the Laws of 1871, entitled an act to amend and consolidate the several acts relating to the preservation of moose, wild deer, birds and fish.

The defendant in his answer denied the complaint. As a second defense, he alleged the summons was not served by a constable. Por a third defense, he alleges that plaintiff brings the action as a game constable for one-half the penalty given by statute, and as it is in the nature of a qui tam action, it should be brought in plaintiff ’s name -as a public officer, and in the name of the people, they being a necessary party. Por a fourth defense, he alleges that the action being for a penalty, the summons is not properly indorsed. Por a fifth defense, the defendant alleges that Ohauneey Lake is a necessary party to the action.

On the return day of the summons the parties appeared, and it was agreed between the parties, in open court, that defendant was to have all rights to make any objections to the process or proceedings on any day to which the suit might be adjourned, as if taken on the return day. The cause was then adjourned till 16th May, 1873. On that day the parties again appeared, and defendant moved to set aside the summons and dismiss the suit, on the ground that the summons is not properly indorsed. The motion was denied. The defendant made the same motion on the ground that the action is brought by and in the name of a game constable, who is entitled to one-half of the penalty; it is therefore a qui tam action, and the other party in interest is not joined. The same motion was made upon the further ground that the summons was not served by a constable. The motions were denied on the ground that the objections were not raised in time.

The cause was then tried by a jury, and a verdict rendered in favor of the plaintiff for ninety-four dollars, and a judgment entered for that sum, with costs. The defendant appealed to the County Court.

When- the cause was tried in the County Court, the defendant’s counsel moved to reverse the judgment and dismiss the proceedings, on the ground that the parties never acquired jurisdiction of the person o f the defendant, for the following reasons:

First. The plaintiff was not a constable or game constable, or officer of any kind.

Second. He was not authorized by law to serve the summons, and the service was therefore void.

Third. The return made by Maxon on the back of the summons is not in writing, as required by law.

Fourth. The indorsement on the summons by the parties is not in accordance with law, in not referring to either of the amended sections of the statute under which a recovery is sought, and does not sufficiently refer to any statute, and not being indorsed as follows : “According to the provisions of the statute.”

Fifth. The people should have been joined as parties.plaintiff,

Sixth. The plaintiff cannot bring suit in his own name, after having acted as a pretended game constable, and served and returned the original process in that capacity.

The defendant’s counsel then offered to read sundry affidavits, in relation to the proceedings before the justice, to show that defendant had never been duly elected or appointed a game constable, and that a majority of the board of supervisors of Orleans county had never authorized the election of a game constable in the towns of that county ; and that one Ball was elected game constable in the town of Gaines, in which the cause of action arose; that a vacancy occurred in said office, and three justices of the town appointed Lewis R. Maxson game constable of said town.

The plaintiff’s counsel objected to the affidavits, on the grounds:

First. That defendant cannot attack the service of the papers in such collateral way.

Second. That defendant made a motion upon return at a previous term of the County Court at which the case was tried, and before the trial began, to set aside the papers, and the motion was denied, and the same question cannot again be raised.

Tbe papers used on such former return were produced, and showed that the motion had been made and denied. The affidavits were rejected, and the defendant’s counsel excepted.

The court then overruled the objection and denied the appellant’s motion, and ruled against him on each and every point so raised, and held and decided that none of these objections could now be considered; and that defendant could not be heard on the appeal to raise the question whether the plaintiff was a game constable or not, or on any of the foregoing objections, and the court thereupon refused to allow appellant to introduce such proof, -and denied his motion, and the defendant’s counsel excepted.

The only mode for reviewing the proceedings on a trial in a Justice’s Court, is by appeal to the County Court.

When the judgment recovered in the Justice’s Court is fifty dollars or less, the justice is required to return to the appellate court the evidence., proceedings and judgment. When the judgment is for more than fifty dollars, the justice is required to return the process by which the action was commenced, with the proof of service thereof, and the pleading, or copies thereof, the proceedings and judgment, with a brief statement of the amount, and return of the claim or claims litigated. When the judgment is for more than fifty dollars, a new trial is to be had in the County Court, unless the appellant shall state in his notice of appeal that the appeal is upon questions of law only. The recovery in this canse before the justice was for eighty-five dollars, and there was no notice in the notice of appeal that the appellant sought to review questions of law only.

A new trial was the only remedy the appellant had to correct errors, if any, committed on the trial before the justice. It follows that the questions raised on the trial, by the defendant, before the justice, as to the form of the process, the regularity of its service and return, whether the proper parties had been brought in, and which the justice had refused to entertain and decide, must be heard by the appellate court, or the defendant was wholly without remedy.

A solemn agreement had been entered into between the parties, in the presence of the court, that the defendant might, on any day to which the cause should be adjourned, raise any objection to the process, etc., with the same force and effect as if raised on the return day ; yet, in violation of this agreement, the court refused to hear the objections of the defendant on the adjourned day, on the very point as to which his rights were reserved. This was grossly unfair and unjust to the defendant, and should have led to a reversal of the judgment, unless the County Court could, on the hearing of the appeal, afford the defendant relief.

Questions in relation to the regularity of process, its service and return, in relation to the jurisdiction of the justice, and whether the proper parties have been brought in, and a multitude of other important questions, must be i-aised in the Justice’s Court, and if not there raised, are waived; but if raised, and an appeal is taken, the appellate court must review the action of the court below upon such questions ; and it is therefore the duty of the Justice’s Court to state in its return what questions were raised before it, and its rulings in regard thereto, and the appellate court must, if required to do so, proceed and pass upon all such questions.

In this case the court refused to pass upon the questions raised by the appellant’s counsel in the court below, and compelled him to proceed to the trial of the cause, without making any disposition of them.

The County Court having neglected to dispose of the questions relating to the form, etc., of the process, and other questions affecting the jurisdiction of the court, this court cannot review its action until it has considered and passed upon such questions: It may be that they are frivolous, but the defendant had the right to have them passed upon by the County Court, and then by this court, but until the County Court has passed upon them this court cannot consider them.

The judgment must therefore be reversed. (Code, § 360; 2 Wait’s L. and P., 770, 798, 809, 811, 836.)

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

Judgment reversed and new trial granted in County Court, costs to abide event.


text:
    EDWARD H. PARMELEE, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Forgery — Prisoner’s belief in his authority to sign paper — Oross-examination.
    Where a person is indicted for affixing the name of another person to a written instrument without authority, he is entitled to an acquittal if it appear that he had fair grounds for "believing that he had such authority, even though in fact he had not.
    Upon the trial of the plaintiff in error for forging his father’s name to a note, the father testified that some time before the son had applied for leave to use his name ; that he had refused to allow him to do so ; that he might have given him encouragement, but did not intend to authorize him to use his name ; that he could not state the conversation. Upon his cross-examination the counsel for the prisoner asked him if he was willing to swear that, from what he did say, the prisoner had no right to infer that he intended to give him authority to use his name, which question was excluded. Reld, that this was error; that the question was proper to test the degree of confidence the witness had in the accuracy of his memory.
    Writ of error to the Court of G-eneral Sessions of the county of Genesee.
    The prisoner was indicted by the grand jury of the county of Genesee for forgery in signing the names of Harvey Parmelee, his father, and of Myron Parmelee, his brother, as makers, to a note for $600, payable six months from date to Windsor Arnold, or bearer, with intent to defraud said Harvey and Myron and Arnold, the payee of said note.
    On the trial in the Court of Sessions it was proved on the part of the People, by said Harvey and Myron, that their names affixed to said note were not in their handwriting but were in the handwriting of the prisoner, and that they never authorized him to affix their names to said note.
    The prisoner’s counsel, on the cross-examination of Harvey Parmelee, put to him the following question:
    You are not willing to swear, are you, but from what you did say, he had the right to infer that you gave him authority to use your name ?
    The district attorney objected to the question. The court sustained the objection and the prisoner’s counsel excepted.

      The jury found the prisoner guilty. His counsel caused to be prepared a bill of exceptions, which was signed by the judges of said Court of Sessions, and the case is brought into this court by writ of certiorari.

      J. A. Stull, for the plaintiff in error.

      C. Fitch Bissell, for the defendants in error.
   MulliN, P. J.:

To entitle a prisoner to a verdict of not guilty upon an indictment for affixing the name of another person to a written instrument without authority, it is not necessary he should prove express authority to affix the name of such other; • it is enough, that from the facts proved it is made out that he had fair grounds for considering that he had such authority.” (Rex v. Forbes, 7 C. & P., 224; Reg. v. Parish, 8 id., 94; Same v. Beard, id., 142.)

In the case last cited OoleRidge, J., says: If a person had reasonable grounds for believing from the acts of the party that he had authority to accept, and did in point of fact act upon that, it could not be forgery.

Harvey Parmelee, one witness whose name is alleged to be forged, testified, on direct-examination, that he never authorized the prisoner, or any one else, to affix his signature to the note.

On cross-examination he testified that he had signed paper to aid the prisoner, and that he, the prisoner, applied to the witness to allow him to use his, witness’, name. He could not state any of the conversation. He says, I may have given him encouragement, but did. not intend to authorize him to use my name.

The witness subsequently testified that no application was made to him to allow the prisoner to use his name. He also said he did not think he gave the prisoner encouragement that he might use his name, but he said something that he might have taken as encouragement.

If the prisoner might have taken the language of his father as encouragement that he would allow him to use his name, it must be assumed that he did take it as encouragement, or as partial consent to use his name.

The witness declared himself unable to state any part of the conversation in which the father used language, which the prisoner might have taken as encouragement that he might use his name; it became proper, on cross-examination, to ascertain the degree of confidence he had in the accuracy of his memory, as to the meaning and effect of what he did say in answer to the request to allow the use of his name. In the absence of the language used there was no other way to ascertain what ground the prisoner had for believing he had authority to use his father’s name, than by the question put to the witness and which was excluded.

In view of the relation between the prisoner and the father, the inability of the latter to state any portion of the conversation between them, when leave was asked by the former to use the father’s name, the question put by the prisoner’s counsel on cross-examination was competent and should have been allowed to be answered.

The conviction must be reversed and a new trial had in the Court of Sessions, to which the proceedings are remitted.

Present — MulliN, P. J., Smith and Taloott, JJ.

Conviction reversed and new trial ordered in Court of General Sessions of county of Genesee, to which the proceedings are remitted.


text:
    ANNIE J. BROWN, Plaintiff, v. ANSON G. CONGER, as Executor, etc., of ISAAC C. BROWN, Deceased, Defendant.

      /Statute of frauds— Oontn'actin consideration of marriage — pa/rtial pmformam.ce — Ghap. 375 of\849 — Practice — when exceptions may he ordered tohehea/rd in the first instance at the General Term.

    Where a man agrees by parol to give a woman certain property in consideration of her marrying him, the subsequent marriage is not such a partial performance of the contract as will induce a court of equity to compel a specific performance thereof, notwithstanding the provisions of the statute of frauds.
    The third section of chapter 375 of 1849, providing that all contracts made between persons in contemplation of marriage shall remain in fqll force after such marriage, was not intended to repeal the provisions of the statute of frauds, declaring that every agreement made upon consideration of marriage shall be void, unless it he in writing.
    Where the complaint is dismissed at the Circuit, the court may direct the plaintiffs exception to such disposition of the case to he heard in the first instance at the General Term, and that judgment he suspended in the mean time.

      Hoagland v. Miller (16 Ahh. Pr., 103) not followed.
    MotioN for a new trial on exceptions ordered to be beard in the first instance at the General Term, after an order dismissing the complaint herein.

      Abram Thorn, for the plaintiff.

      8. G. Adams, for the defendant.
   MulliN, P. J.:

.The plaintiff alleges in her complaint that on or about the 27th day of August, 1868, it was mutually agreed by and between her and Isaac 0. Brown that they would intermarry, and in consideration thereof he agreed to pay the plaintiff one-third of his property of every kind, which he stated was of the value of $13,000 and upwards. In consideration of which promise of said Brown, plaintiff consented to, and did intermarry with him, and had lived and cohabited with him until his death, in May, 1872. It was further alleged in said complaint that said Brown left a last will, in and by which he appointed the defendant executor thereof; that said will was duly proved before the surrogate of Erie county, who had jurisdiction to admit the same to probate, and defendant took upon himself the duties of said office; that plaintiff presented to said executor a claim for the one-third of the estate of the said Brown, but he rejected said claim.

The defendant, by his answer, took issue upon the alleged agreement to give to plaintiff one-third part of his estate, and set up as a defense that this agreement was void, not being in writing.

On the trial the plaintiff gave evidence by parol, tending to prove the matters alleged in the complaint, and rested. Whereupon the defendant’s counsel moved for a nonsuit, on the ground that the promise, not being in writing, was void by the statute of frauds,

The court granted the motion and nonsuited the plaintiff, to which ruling and decision plaintiff’s counsel excepted.

The court ordered that the motion for a new trial on the plaintiff’s exceptions be heard in the first instance in the General Term.

By the third subdivision of section 2 of the statute known as the statute of frauds, it is provided that every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry, shall be void, unless such agreement or some note or memorandum of it be in writing and subscribed by the party to be charged therewith.

In the following cases the Court of Appeals has held contracts entered into between a man and a woman before marriage by which the man agreed to deliver property to the wife, or to do some act for her ^benefit after the marriage, were void when the marriage was the only consideration for the promise: Dygert v. Remerschnider (32 N. Y., 629) ; Dung v. Parker (52 N. Y., 496). The same was held by the chancellor in the Matter of Willoughby (11 Paige, 257).

It is urged by the appellant’s counsel that the marriage in pursuance of the ante-nuptial agreement is such a part performance, as that a court of equity will enforce the parol contract notwithstanding the statute of frauds.

The counsel refers to no case which supports this proposition. Indeed, the cases, as far as I have examined them, are all the other way.

In Fry on Specific Performance, 263, it is said marriage is not alone, a part performance of an agreement in relation to it. To hold this would be to overrule the statute of frauds. (Id., 249; Lassence v. Tierney, 1 McN. & G., 551; Brown on the Statute of Frauds, §§ 439, 440, 444, 449.)

In 1849 the legislature passed an act entitled An act to amend an act for the more effectual protection of the property of married women,” passed April 11th of that year, the third section of which is' in the following words :

Section 3. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.

This section, the plaintiff’s counsel insists, repeals the clause of the statute of frauds above cited, and hence contracts founded ou the consideration of marriage were no longer to be in writing, in order to be valid.

It is quite manifest that the legislature did not intend to repeal the clause of the statute of frauds under consideration.

That clause was inserted in the statute to protect parties from being bound by parol contracts alleged to be made before marriage, the inducement to, or consideration of which was a future marriage. The same temptation to fraud and perjury was held out to one or other of the parties that the preceding provisions of the statute were intended to prevent. If there was any adequate reason for the repeal of the third clause it applies with equal force to the preceding clauses. The legislature has adhered with too much tenacity to the statute of frauds to justify the belief that it intended, in pass ing the act of 1849, to repeal any of its provisions.

It would be a great public calamity should the clause of the statute under consideration be repealed.

Before the passing of the act of 1849 contracts between a man and a woman entered into before marriage were, as a general rule, void upon the consummation of the marriage, without regard to the subject-matter of the contract or the equitable considerar tions that would require its enforcement. (Curtis v. Brooks, 37 Barb., 476; 1 Black Com., 442 and notes; 2 Kent’s Com. [12th ed.], 129.)

It was to get rid of this harsh and oppressive rule of law that the third section of the act of 1849 was passed, and its operation should not be extended beyond that.

When the casein 32 New York, 630, arose and was decided the act of 1849 was in force, and if the court had been of the opinion that the third clause of the statute of frauds had been repealed, the learned judge delivering the opinion would not have been permitted to assert, without some of the members of the court dissenting from the proposition, that marriage alone did not constitute a valid consideration for a contract. '

That case must be deemed to be an adjudication of the court of last resort, that the third clause of the statute of frauds has not been repealed.

The plaintiff’s counsel calls our attention to the ease of Hoagland v. Miller (16 Abb. Pr., 103), in which the General Term of the first district held, that it is a mistrial to direct that an exception to the dismissal of the complaint be heard at the General Term in the first instance.

I am unable to comprehend the reason for the conclusion at which the learned judge arrived in the case cited. None are assigned by the judge who delivered the opinion, other than that he says he knows of no authority for directing the exception to be heard in the first instance in the General Term.

Section 265 of the Code contained the same provisions in 1863, when that case was decided, that are in it now, and as I understand the section, it expressly authorized the court, before which the cause was tried, to send the exceptions to the General Term to be heard in the first instance.

The court at the trial dismissed the complaint and the plaintiff’s counsel excepted to the ruling, and it was this exception that was ordered to be heard in the first instance at the General Term.

The plaintiff was bound to except to the ruling, or he could not avail himself of the error, if it was one, to dismiss his complaint.

Section 265 provides that a motion for a new trial on a case and exceptions or otherwise must, in the first instance, be heard or decided at the Circuit or Special Term, except that when exceptions are taken the judge trying the cause may, at the trial, direct them to be heard at the General Term in'the first instance, and the judgment in the mean timéis suspended, and in that case, they must there be heard in the first instance and judgment there given.

There was then an exception by the plaintiff’s counsel to an order of the court dismissing the complaint, thus bringing the case within the very terms of the section.

We are compelled to decline to follow the case cited, believing as we do that the practice of the plaintiff was entirely correct.

The motion for a new trial is denied and judgment of nonsuit ordered for the plaintiff.

Present — MulliN, P. J., Smith and Taloott, JJ.

New trial denied and judgment of nonsuit ordered for plaintiff.


text:
    DANIEL CROUSE and others, Respondents, v. OSCAR PADDOCK and ELIAS F. COOPER, Appellants.

      Arrest pending suit — undertaking — liability of sureties on, where one only of two defendants can be arrested on execution.

    Two defendants having been arrested, in an action brought against them by the plaintiff, the defendants in this action executed an undertaking to procure their discharge. Subsequently,upon an execution issued againsttheir personsupona judgment recovered in the first action, the sheriff arrested one and returned as to the other non est imentus. In an action upon the undertaking, held, that the arrest and imprisonment of one defendant did not relieve the sureties to the undertaking fropi their liability for the escape of the other.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      Charles P. Crosby, for the appellant.
    The plaintiffs could not have maintained an action against both Paddock and Andrus upon the judgment they recovered, so long as Andrus remained imprisoned on an execution issued upon such judgment. (Chapman v. Hyatt, 11 Wend., 41.) And if both Paddock and Andrus had been imprisoned on such execution, the plaintiffs could not have maintained an action against the defendants as bail for them, so long as such imprisonment continued. (Sunderland v. Loader, 5 Wend., 58.) A release of one of several joint debtors releases all. (Hoffman v. Dunlap, 1 Barb., 185.) A release of one of several joint wrong-doers releases all. (Bronson y.Fitzhugh, 1 Hill, 185.) If the plaintiffs had released Andrus from the judgment against himself and Paddock, such release would have operated to discharge Paddock also. So long as Andrus remains imprisoned on execution the judgment is surely satisfied as to him, as effectually as if the plaintiffs had released him therefrom. It is submitted that under the authorities the imprisonment of Andrus satisfies the judgment pro tern, against both Andrus and Paddock. It is no answer to say that we were bound to produce both judgment debtors, and have only produced one. This we concede, but we claim that by accepting Andrus alone upon our bond to produce them jointly the ordinary rule applies, and that during the imprisonment of Andrus the judgment against him and Paddock is satisfied as to us, whose undertaking is collateral to the judgment, and also for the reason that the imprisonment of Andrus, while it continues, is a discharge of our liability, as bondsmen for him and for Paddock jointly. The plaintiff might have avoided this by refusing to accept of Andrus alone. He could have sued us for our failure to produce the defendants Andrus and Paddock jointly, as our bond called on us to do. Not having done this, but having treated our bond as one for the delivery of Andrus and Paddock severally, he must abide the consequences.

      Edward H. Sisley, for the respondents.
   MulliN, P. J.:

The plaintiff brought an action in the Supreme Court against George F. Paddock and Merritt Andrus, and obtained an order of arrest on which they were arrested, and they were discharged from the arrest on giving the undertaking upon which this action is brought: that the said Paddock and Andrus should, at all times, render themselves amenable to the process of the court during the pendency of the action, and to such as might be issued to enforce the judgment therein.

Judgment was recovered in the action against Paddock and Andrus, and an execution thereon issued to the sheriff of Jefferson county, who returned the same unsatisfied.

Thereafter an execution was issued against the bodies of Paddock and Andrus, on which Andrus was arrested and imprisoned; but as to Paddock, the ea. sa. was returned non est inventus.

Thereupon the plaintiffs brought an action against the defend-ants, as sureties in the undertaking given to release Paddock and' Andrus from imprisonment.

Paddock put in an answer alleging, amongst other things, in bar ' of the action as to him, the arrest and imprisonment of Andrus on the ea. sa.

The judge at the Circuit held that the arrest and imprisonment of Andrus did not preclude the plaintiffs from proceeding against Paddock to enforce the debt, and ordered judgment for the plaintiff against the defendant.

It is well settled that the imprisonment of a sole defendant is a satisfaction of the debt while it continues. (Sunderland v. Loder, 5 Wend., 59 ; Chapman v. Hatt, 11 id., 41.)

But I find no case in which it has been held that the imprisonment of one operates as a satisfaction to his co-defendant. The cases cited by appellant’s counsel do not support the proposition.

The case of Penn v. Remsen is decisive of the question. (24 How., 503.)

The judgment must be affirmed.

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

Judgment affirmed.


author: Muulin, P. J.:

text:
    HENRY SHAFT, Administrator, etc., Respondent, v. THE PHŒNIX MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Policy of insurance — power of agent — ratification of acts of by compa/ny.

    A policy of insurance was issued to the plaintiff’s intestate, upon which was printed a notice that the agent had no authority to receive any premium after the date of its becoming due, without special permission from the officers of the company. On the twenty-sixth of July, the agent wrote to the deceased stating- that the amount of the premium due July twelfth was seven dollars and eighty-eight cents, and that the same might be sent by mail. Between the twenty-sixth and thirtieth of July this amount was sent to the agent, who acknowledged the receipt thereof on the thirtieth, and sent the renewal receipt. The insured died on the first of August. The company received the premium, and never returned or offered to return the same. In an action upon the policy the company claimed that the agent had no authority to receive the premium. Upon the trial no evidence was given as to the authority of the agent. Reid, that the acts of the agent and the company, in accepting and retaining the premium, were such as to authorize the finding that he was authorized to receive the same and to deliver the renewal receipt therefor.
    Under the circumstances, it was not incumbent upon the insured to apply himself to the company, in order to ascertain whether it had authorized the agent to receive the premium and deliver the renewal receipt therefor.

      Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff.

      Ha/nd, Hale, Swartz <& Fairohilcl, for the appellant.

      Beardsley, Oookvngham & Burdick, for the respondent.
   Muulin, P. J.:

This action was brought to recover $1,000 on a life insurance policy, issued by the defendants upon the life of William E. Shaft. The policy was dated twelfth April; the premiums were payable quarterly. Indorsed on the policy delivered to the insured was the following, viz.: The assured will please take notice that no receipt for premiums on this policy is valid, unless signed by the president or secretary of the company at Hartford, Connecticut, and that no agent has authority to receive any premiums without first presenting a regularly signed receipt from the president or secretary, or to interline or otherwise change any policy, or to receive any premium after date of its being due, without special permission from the officers of the company.

A quarterly payment came due on the policy on the 12th July, 1873. It was not paid. The agent, who received the application through whom the company communicated with the assured, wrote to the latter a letter dated the 26th July, 1873, informing him that he (the agent) had received a renewal of the policy, and that the amount due was seven dollars and eighty-eight cents, which sum he could send by mail. On some day between the 26th and 30th July, 1873, the amount called for by the policy as the premium due on the twelfth July was sent to the agent, and the receipt of it acknowledged by him on the thirtieth. In the same letter was inclosed the renewal receipt.

The insured died on the first of August; the letter and receipt were received some days after his death. A recovery on the policy is resisted on the ground, amongst others, that the premium not having been paid on the twelfth July the policy became void, and could not be renewed or continued without permission of the company, and no such permission was ever obtained.

The answer to the objection to a recovery is, that the premium was paid to the agent at Utica, and by him remitted to the agent at Albany and has been retained, and neither returned nor offered to be returned by the defendant.

The insured was fully informed of the want of authority of an agent to accept the premium after the day on which it was payable. A notice to that effect was printed on the back of the policy. But the agent might accept it if he had special authority so to do from the company. There is no evidence in the case as to whether he had such authority. Under ordinary circumstances it would be incumbent on the insured to prove the authority, if he relied upon a renewal by acceptance by an agent after the day of payment had passed. In the ordinary course of business the insured deals with the agent, applies to him for and receives the policy from him, and makes to him all payments of premiums unless, perhaps, he resides in the place where the principal office of the company is situated.

It was competent for the company to accept the payment after the day, and the insured might make the venture and pay the premium to the agent, leaving him to obtain the consent of the company.

When he pays the agent and a renewal receipt is received by him from the agent, he has the right to assume that the agent has sent the receipt with the knowledge and approbation of the company.

The money and the receipt, in the ordinary course of business, pass through the agent’s hands. The insured, on the receipt of the renewal receipt, might, by way of precaution, inquire of the agent whether the officers had given him special authority to deliver the receipt, and if he should answer in the affirmative, and the company should keep the money, it would not be contended that the renewal was not valid.

The conduct of the agent and of the company in this case was just as high evidence that the officers of the company had consented to the acceptance of the premiums by the agent, as if it had been uttered in words.

The agent knows as well as the insured that he has no authority to deliver a renewal receipt without the approval of the company, when the premium was over due.

When be accepted tbe premium, it was his duty to inform tbe company of it, and obtain their approval if he could, and it was only in tbe event that be obtained it, that be was authorized to deliver tbe receipt. Tbe delivery of it was equivalent ■ to a declaration that be had applied for and obtained such consent.

Tbe insured could not get access to the correspondence that passed between the agent and tbe company. He must depend entirely upon tbe acts and declarations of tbe agent.

It may be said it was tbe duty of tbe insured to apply to the company itself in order to ascertain whether tbe acceptance of tbe premium by tbe agent was approved. This he was not obliged to do, and it would be a serious annoyance if any such practice should be sanctioned, not only to the insured, but to the company itself.

Agents are appointed to stand between the company and those insured by it, and the action of the company is learned through the agent.

It seems reasonable and just that in a case like this it should be held that the agent was bound to consult the company, as to whether he should accept the premium and deliver the renewal receipt, and' if consent was refused, then it was his duty to notify the insured of it; and if not done, and especially if the premium paid is not returned, but kept by the company, the company should be deemed to have assented.

The plaintiff was not informed that the policy was not properly renewed until 26th September, 1873, when Fillow, an agent of the defendant, called on him and informed him that the policy was void.

When the evidence was closed the court inquired of the counsel whether there was any question of fact they desired to be submitted to the jury. No request to submit any question was made, and the court assumed that neither party desired a submission. He therefore ordered a verdict for the plaintiff, and directed the exceptions to be heard in the first instance in the General Term.

The court, with the acquiescence of counsel, assumed to determine the question of fact. These questions were: 1st. Whether the insured was guilty of misrepresentations as to his health in his application for insurance. 2d. Whether the release defendant obtained from the plaintiff was obtained by the fraud of the defendant’s agent.

On these questions I think the decision of the court was correct. No fraud is proved as to the first question of fact, but it is clearly proved as to the second.

The defendant’s counsel excepted to the order that the jury render a verdict for the plaintiff, and a verdict was thereupon rendered for the amount of the policy, less $150, which had been paid by defendant to the plaintiff as the consideration for the release.

The motion for a new trial should be denied and a judgment ordered for plaintiff on the verdict.

Present — Mullin, P. J., Smith and Taloott, JJ.

New trial denied.


text:
    ROBERT E. HILL, HARVEY ROBINSON and ALFRED HIGGINS, Respondents, v. E. CLARK CARLEY, Impleaded with LUCIEN E. CRAIN and JOHN J. WHEATON, Appellants.

      M'audulent representations— made to the agent of one firm — -when acted upon by another firm, by whom such agent is aftemom'd employed — liability for.

    The firm of Lynde Bros., in order to induce a firm in Buffalo to sell them goods, made certain false and fraudulent representations as to their financial condition to Robinson, the salesman of the Buffalo firm. Subsequently the plaintiffs succeeded to the business of said Buffalo firm, and retained Robinson in their employment. Shortly after Lynde Bros, applied for other goods, which were sold to them by Robinson, he relying upon the representation previously made by them. In an action by the plaintiffs to recover the goods so sold, on the ground that they were procured through fraudulent representation, held, that they were not entitled to recover; that, in order to maintain such action, the representations must be made to the vendors, or to some person acting in their behalf, while in this case the representations were made to the agent of another firm, and before that of the plaintiffs came into existence.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee in an action of replevin.

      B. T. Wright, for the appellants.

      Irving tí. Vann, for the respondents.
   MulliN, P. J. :

The action is replevin for a quantity of goods sold by the plaintiffs to the Messrs. Lynde Brothers, of Marathon, in the county of Cortland, upon false representations, as is alleged, of the ability of the purchasers to pay for them. The price of the goods was $162.40.

Harvey Robinson was a son of one of the plaintiff’s firm, and intrusted by the firm with determining to whom sales on credit should be made. Robinson had been in the emploj1’ of a firm that preceded plaintiffs in the business. The Messrs. Lynde had traded with the older firm and had not met promptly their notes.

One of the Messrs. Lynde, in January or February, 1873, applied to Robinson, who was in the employ of such former firm, to sell them a bill of goods on credit. Robinson said to him that it had been rumored that they (the Lynde Brothers), were pretty close,up for money, and were being bothered to meet their bills. He (Lynde) said they had been, somewhat. Robinson told him he did not wish to make the account any larger, as they recently asked to renew notes ; and he remarked to Robinson that every thing was all right now ; that they had been looking over their accounts and goods and found themselves in better shape than they expected. Robinson asked him about the indorsement of his father on the note they wanted to renew. He (Lynde) remarked that that was all right now, it made the paper good. Robinson asked him what he thought was the difference between their liabilities and their assets. He said he thought their assets were at least $3,000 above their liabilities. Robinson told him he did not wish to injure his feelings in any way by speaking of it, and if they were in that shape, would be willing to sell them all the goods they needed. He, Lynde, again remarked, you need have no fears ; you shall never lose a cent by us.

Subsequently, in March, 1873, the Messrs. Lynde applied to one of plaintiffs’ traveling agents for a quantity of goods on credit. The order was transmitted to plaintiffs, and by them handed over to Robinson to decide whether the credit should be given. Relying on the truth of the representations made the winter before, he consented to sell them, and did sell them, and deliver to them a bill of goods on credit to the amount of $162.40.

On the 5th April, 1873, the Lynde Brothers made a general assignment of their property to the persons named as defendants in this action. On examination, it was ascertained that they assigned property only sufficient to pay twenty-five per cent of their liabilities.

The referee finds that when the representations were made to Robinson the partners knew they were insolvent.

The plaintiff, in bringing the action, proceeded on the assumption that the sale was fraudulent, and that title to the property had not passed to the purchasers, by reason of the fraud. To establish the fraud, the plaintiff's called Robinson, who was asked to state the representations made to him by one of the firm of Lynde Brothers. The evidence was objected to as incompetent, as being between persons not parties to the action. The objection was overruled and the testimony received.

At the close of the plaintiffs’ evidence, the defendants moved for a nonsuit, on the ground, amongst others, that there is no proof that the Messrs. Lynde, or either of them, made any false or fraudulent representations to the plaintiff's to procure the goods in question. The motion was denied, and the defendants’ counsel excepted.

To render a sale void, because of false or fraudulent representations, it is essential that they be made to the vendor, or to some other person, to be communicated to him. (Van Kleeck v. Le Roy, 37 Barb., 544; 1 Wait’s L. and P., 504; Murfey v. Brace, 23 Barb., 561; Durbrow v. McDonald, 5 Bos., 131.)

When the representations were made to Robinson, the plaintiffs’ firm was not in existence, and, of course, Robinson was in no way connected with them. The evidence fails, therefore, to prove that the Messrs. Lynde e^ver made any false or fraudulent representations to the plaintiffs:

The case of Van Kleeck v. Le Roy seems to us to be decisive of the question ; and as a new trial must be granted, because of refusing to nonsuit the plaintiffs, it is unnecessary to consider tbe other questions presented by tbe appellants’ points.

Tbe judgment must be reversed,.and a new trial granted, costs to abide tbe event, and tbe order of reference must be vacated.

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

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


author: Mullin, P. J.:

text:
    ANDREW O. NORCOTT and WILLIAM B. NORCOTT, Appellants, v. THE FIRST BAPTIST CHURCH OF ROME, Impleaded with WILLIAM R. WILLIAMS, Respondent.

      Mechanic's lien — bill of particulars — effect of failure to seme.

    If, in an action brought to foreclose a mechanic’s lien, the plaintiffs fail to serve with the notice the bill of particulars required by section 10 of chapter 402 of 1854, the remedy of the defendant is to move, before answering, to set aside the proceedings, or stay them until such service be made.
    Such defect is waived by the service of an answer, and cannot be taken advantage of upon the trial.
    ■Appeal from a judgment dismissing the proceedings herein entered upon the report of a referee.
    The action was brought to foreclose a mechanic’s lien filed under chapter 402 of the Laws of 1854.

      W. Kerncm, for the appellants.

      Johnson <& Prescott, for the respondent.
   Mullin, P. J.:

Appeal from judgment in an action to foreclose a mechanic’s lien.

At some time prior to the 5th October, 1872, W. R. Williams entered into a contract with the Baptist Society of Rome to furnish the material, and erect and finish a church edifice for the use of said society, the roof of which was to be covered with slate,

On the last mentioned day the plaintiffs entered into a contract, in writing, with said Williams to furnish the slate to cover said roof, and lay the same, for which, they were to receive $940.

At some time prior to the twenty-ninth of September, the plaintiffs filed a notice of lien on the said church in the office of the clerk of Oneida county, to the amount of $940 and interest from the 30th of January, 1873, when said contract was completed by them for the slate, and labor in laying the same under said contract of the 5th October, 1872. In this notice the church is called the First Baptist Church of Rome.

’ In May, 1872, the plaintiffs served on the Baptist Church of Rome a notice alleging the making of the contract with Williams ; that they had performed the contract on their part entered into with Williams, a copy of which, was annexed to the notice, and that the sum of $940 was due them, and that they had filed a notice of lien required by the statute within twenty days of the completion of said contract, and requiring said church to appear in the Supreme Court at the end of twenty days from the service of the notice, and submit to an accounting and settlement in said court of the amount due or claimed to be due to them, for the labor done and materials furnished under the contract with Williams.

The petition, or claim, as it is called in the affidavit annexed to the same, then proceeds as follows: The bill of particulars and claim is for the labor and materials named in said contract annexed, and said contract is referred to for said bill of particulars.

It then asked judgment that said lien may be enforced under the statute relating to mechanics’ liens, or that said house be sold to pay the same and costs, or that the officers of the church be ordered to pay said amount out of any moneys of the church in their hands not paid over to said Williams.

At the foot of the said papers is an affidavit, of which the following is a copy:

Andrew O. Norcott, one of the above named claimants, being duly sworn, says that he has heard the foregoing petition or claim read' and knows the contents thereof, and the same is true of his own knowledge except as to those matters therein stated on information and belief, and as to those matters he believes it to be true.

The church put in an answer denying performance of the contract by Williams to erect and finish the church, but alleging that he had left the same unfinished; that the work was defectively done, and denying that there was any thing due him. Other defenses were set up that are not material to be considered here.

The case was referred, and on the trial the objection was taken, among others, that the plaintiffs had not served a bill of particulars at the same time with the notice, and that by reason of such omission the proceedings were so defective that plaintiffs were not entitled to judgment nor to give evidence of their claim.

The referee so held and ordered judgment for the defendants, dismissing the proceedings, with costs.

Section 6 of chapter 402 of the Laws of 1854 provides that the person having a lien for labor or materials may bring an action in the Supreme Court, when the amount exceeds fifty dollars, to enforce said lien, which action shall be commenced by serving a notice containing a statement of the facts constituting the claim and the amount thereof, on the owner of the property or his agent, requiring said owner to appear in person or by attorney within thirty days after such service and answer the same, or he will take judgment, etc.

By the next section it is provided that within thirty days after service of said notice and bill of particulars, the defendant shall personally serve the claimant or his attorney with a copy of his answer, duly verified, to the effect that the same is in all respects true or his default may be entered.

Section 10 provides that at the time of serving said notice a bill of particulars of the amount claimed to be due from such owner, verified by the oath of the claimant or his attorney, to the effect that the same is true, shall be served on the owner.

It will be seen that by section 6 the action is commenced by the service of the notice provided for in that section, nothing being said about a bill of particulars. Section 10 requires the service of the bill of particulars, with the notice, and by section 1 the time for answering is reckoned from the date of the service of the notice and bill of particulars.

The question before us is whether, conceding that no bill of particulars was served with the notice, the refei’ee was right in refusing to hear the plaintiffs’ evidence and dismissing the proceedings.

Tbe defendant, by serving an answer to the notice or complaint, waived the error committed in not serving the bill of particulars.

The service of the notice is the commencement of the action, and the service of the bill, is not essential to its commencement.

The notice sets forth the nature of the claim, and. the bill only gives the details or particulars of it.

Section 10 compels the plaintiff to do what the defendant, after the commencement of the action, might compel him to do.

I am unable to perceive why the service of a bill required by section 10, should be held to be any more.important than the service of a bill in any other form of action.

The omission to serve the bill with the notice could only be taken advantage of by motion, before answer, to set aside the proceedings or stay them until such service was made.

Such a motion not being made, the defect was waived by answering. The question could not be raised on the trial.

The judgment mirst be reversed and new trial granted before another referee.

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

Judgment reversed and new trial granted before another referee, costs to abide event.


author: Smith, J.

text:
    WILLIAM D. SHERMAN, Plaintiff, v. THE TOWN OF HAMBURG, Defendant.

      Claims against town — right to sue — Town auditors — Board of Supervisors — Commissioner of highways.

    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after an order directing the dismissal of the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
    This action was brought by the plaintiff to recover his costs and disbursements, incurred in defending himself in an action brought against him, while in the discharge of his official duty as commissioner of highways of the town of Hamburg, in said county.
    In 1869 the defendant, by a former commissioner of highways, took proceedings under the statute to open a highway, and filed and recorded an order, pursuant to statute, with the town clerk of that town, opening up the highway.
    In March, 1870, the plaintiff was elected commissioner of highways, and found the record of the highway, and took proceedings to have the same opened, and removed the obstructions.
    In September, 1870, one Hannah Cockle commenced an action against him for removing the obstructions on the line of the highway, claiming that the proceedings taken in carrying out the highway were irregular. A judgment was recovered therein for something over $300, damages and costs.
    This plaintiff brought this action to recover the costs and disbursements incurred in the defense of that suit; and the judge at Circuit dismissed the complaint, holding that the town was not liable to the plaintiff for his expenses in defending the suit against him, and ordered the exceptions taken to be beard in the first instance at the General Term.
    The court at General Term say: “ The nonsuit was clearly properly granted at the Circuit. The plaintiff could not maintain an action against the town for the costs and expenses of the litigation incurred and paid by him, as stated in his complaint, within the eases of Bell v. The Town of Bsopus (49 Barb., 506), and Marsh v. The Town of Little Valley (4 N. Y. S. C., 116).
    The claim was unliquidated. If the town auditors have not, the board of supervisors of the county have ample power, and it is their duty to audit the accounts of town officers against their respective towns, and direct the raising of such sums as may be necessary to defray the same. (1 R. S., 367.)
    If, in a proper case, the town auditors or the board of supervisors neglect or refuse to audit and allow a just and legal claim of a town officer, the party has an ample remedy by mandamus.
    The motion for a new trial should be denied.”
    New trial denied.

      Walker <& Titus, for the plaintiff. A. O. Calkins, for the defendant.
   Opinion by

Smith, J.

Present — MulliN, P. J., Smith and Taloott, JJ.

Motion for new trial denied, and judgment ordered upon the nonsuit.


author: Taloott, J.

text:
    THE PRESBYTERIAN SOCIETY OF KNOXBORO, Appellant, v. JACOB BEACH, Respondent.

      Subscription — for erection of church — payments to be made to treasurer to be, ,appointed by subscribers — not enforceable by church corporation, created after subscription.

    Appeal from a judgment entered upon an order setting aside the verdict of a jury and dismissing the complaint herein, and from an order denying a motion for a new trial, made upon a case and exceptions.

      This action was brought to enforce a subscription by the defendant, of $250 for the purpose of erecting “ a Presbyterian church edifice” in the village of Knoxboro. The Presbyterians and Methodists had alternately occupied, for purposes of public worship, a building in that village belonging, so far as appears, not to any religious corporation or society, but to citizens of both persuasions. Most of the persons of the Presbyterian denomination belonged to, or were members of the Presbyterian society at Augusta Center, a neighboring village. The defendant, with .many other subscribers, was a member of the Methodist church, and the project of building a Presbyterian church edifice, seems to have been founded on the understanding, that those persons of the Presbyterian persuasion who were interested in the ownership of the building which had theretofore been occupied by the two denominations, should relinquish all their right and title therein to the Methodists, and-an express written condition to that effect accompanied the subscription. The difficulty in complying with this condition, or the delay likely to be occasioned by a compliance with it, seems to have led to a misunderstanding between the two denominations, and after some negotiation on the subject, between committees of the two denominations, the Presbyterians proceeded to erect a church edifice on ground and according to plans of their own selection. The defendant, amongst others, protesting that he would not pay his subscription.
    The contract (subscription) on which the action was brought, was in the following form :
    “We, the undersigned subscribers, believing that the erection of a church edifice in the village of Knoxboro is required for the promotion of both the convenience and benefit of the inhabitants of said village and vicinity, hereby agree to pay the sums set opposite our respective names to a treasurer to be appointed by us, for the purpose of building a Presbyterian church edifice in said village of Knoxboro, payable, one quarter on each of the following days, viz., 1st April, 1st July, 1st October, 1872, and 1st January, 1873; provided the sum of $6,000 is subscribed, otherwise our subscriptions are not binding.”
    Dated Knoxboro, New York, 4th March, 1872.
    To this paper, numerous names purported to be subscribed, for various amounts, .and amongst others that of the defendant for $250. Neither the subscription nor the evidence in the case showed that at the time of the signing of the subscription the organization of any corporation was contemplated or expected. The plaintiff was not then in existence as a corporation. The preliminary meeting for the organization of the plaintiff as a corporation was not held until the tenth of April.
    The court at General Term say: “ The first question which naturally presents itself is, upon what principle can the plaintiff maintain any action to recover the subscription by the defendant ?
    “ The contract is not with the plaintiff or any of its officers, or in any manner for its use. The contract is to pay a treasurer to be appointed by the subscribers, not the treasurer of the plaintiff, in whose election or appointment the defendant and many other subscribers could have no voice. Assuming a treasurer to have been appointed by the subscribers, within the meaning of the subscription, he does not, as such, represent the plaintiff, and has not, in any manner, transferred the contract to the plaintiff. In the case of The Reformed, etc., Church v. Brown (24 How., 76), decided by the Commission of Appeals, stress was placed on the provisions of the statute by which a church corporation, when incorporated, is authorized to take possession of all the temporalities belonging to the church, whether given, granted or devised directly to the church, or to any other person for its use, and to take and recover all the debts, etc., belonging thereto, ‘ as fully and amply as if the right or title thereto had originally been vested in said trustees,’ and in the opinion of the court it is said : ‘ The facts above stated do not show, nor is it expressly found by the referee, to or with whom the promise or agreement was made, but it does appear that it was made at the time of the formation of the society and that it was made by the subscribers. It will, therefore, in the absence of an express statement or finding, be presumed that it was a legal subscription, in and by which he, in some way, legally obligated himself to pay the sums subscribed for the use and benefit of the society. In all the other cases cited it appears that the subscription was made for the use and benefit of a particular society or corporation. In the present case, no such thing appears, or can be spelled out from the subscription paper, nor can it be inferred from any evidence in tbe case; we are, therefore, of the opinion that the plaintiff has no title to the subscription, conceding that in other respects it was valid and enforceable as a binding contract to pay the sums subscribed. (See Van Rensselaer v. Aikin, 44 N. Y., 126.)
    The order dismissing the complaint and the order denying a new trial are affirmed.”

      John JB. Knox, for the appellant. W. H. Bright, for the respondent.
   Opinion by

Taloott, J.

Present — Mullin', P. J., Smith and Taloott, JJ.

Order dismissing complaint and order denying new trial affirmed.


text:
    EDWIN HINMAN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Writ of error — to Court of General Sessions — tested and signed by Qounty Judge — a nullity.

    Writ of error to the Court of General Sessions of Livingston county, to review the conviction of the plaintiff in error of the crime of burglary with intent to commit rape.
    The court at General Term say : “ This case is not properly before us. It comes before us upon a writ of error to the Court of Sessions of thehounty of Livingston.
    The writ of error appears to have been issued by the County Court of Genesee county. It is tested in the name of the county judge of that county and signed by the said county judge. It does not appear to have been signed or sealed by any clerk of this court. It is upon its face a nullity.
    It does not bring before this court the proceedings of the Court of Sessions, and confers upon us no authority to review such proceedings.
    Said writ must be dismissed.”
    Writ of error dismissed.

      F. 0. Peek, for the plaintiff in error. 0. Olney, for the defendant in error.
   Opinion by

Smith, J.

Present — MulliN, P. J., Smith and Taloott, JJ.

Writ of error dismissed.


author: Bocees, J.:

text:
    NILES HIGGINBOTHAM and others, Plaintiffs, v. GROVE W. STODDARD, Defendant.

      Deed — natural monuments — measurements — construction of in case of vcmance— Adverse possession.

    Wliere a deed conveyed a lot on the south side of Madison street “extending from Madison street to Phelps street, said building lot being ten feet on Madison street, thirty-two feet in rea/r on the noi'therly side of the mill race, and 100 feet in depth from front to rear, containing 2,100 square feet of ground,” held, that the lot did not extend back to the mill-race, but only to a line distant 100 feet from Madison street.
    Although the rule is well settled that in construing deeds, courses, distances and quantities must yield to fixed and known objects and monuments, yet the entire description must be read in order to determine its fair import; and if there be words of qualification or explanation, they must be considered in order to arrive at the intention of the parties.

      Semble, that when lines are so short as to admit of entire accuracy in their measurement, such measurement is entitled to great weight in determining what is intended by the language.
    To constitute such an adverse possession of land as will render a conveyance thereof void, it must be held under a claim of some specific title; a general assertion of ownership, irrespective of any particular title, will not avail.
    MotioN for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiffs,

      The action was in ejectment. It was commenced in July, 1873, to recover the possession of a strip of land in the village of Oneida, Madison county, described in the complaint as “ bounded on the east by Market alley in said village, on the south by the now existing water line of the milL-race, on the west by the easterly line of lands belonging to the State of New York, and on the north by land of the said defendant; being a strip of land about five feet wide on the easterly end, and extending at about the same width westerly twenty-four feet, and from thence narrowing by a contraction on the southerly side, to about two feet in width at a point thirty-two feet west of said Market alley.”
    The defendant claims to own this strip by virtue of a conveyance from the plaintiffs’ grantor. The court held that the lot in question was not included in the description of the land conveyed to the defendant (this description is set forth in the opinion), and directed a judgment in favor of the plaintiffs.

      G. Garskaddan and Henry A. Foster, for the plaintiffs.
    It was clearly the intention of the parties to limit the southern boundary of defendant’s lot to a line 100 feet south of the south line of Madison street. {Kvngslemd v. Chittenden, 6 Lans., 18 ; French v. Garhart, 1 Comst., 102.) That the words “ on the northerly side of the mill-race,” were not intended as a fixed boundary, is well established by the following cases: Wilson v. Inloes (6 Gill [Md.], 121); Bex v. Johnson (5 N. H. R., 520); Bowman v. Farmer (8 id., é02); Marsh v. Marshall (19 id., 301). Even if the words “ on the northerly side qf the mill-race ” were used as descriptive of the premises; and even though they might be considered equivalent to the words “on the northerly line of the millrace,” yet, as they are not clear and explicit, they must yield to the more specific and certain description of the lot which confines it to 100 feet in .depth from Madison street. (Washb. on Real Property, [2d ed.], 672, § 39, 673, § 40; Herrick v. Sixby, L. R., 1 P. C., 436 ; Heard v. Qarritt, 34 Miss. [5 Gage], 152 ; Bell v. Sawyer, 32 N. EL, 72.) “Words of general description in a deed are controlled and made certain by the particular, description of the premises in question.” (Smith v. Strong, 14 Pick., 128; Barnard v. Martin, 5 N. EL, 536 ; Seaman v. Hogeboom, '21 Barb., 407, 408 ; Townsend v. Hayt, 51 N. Y., 656, 657; Frost v. Spaulding, 19 Pick., 445 ; JBlaney v. Bioe, 20 id., 62; B., N. Y. and E. B. B. Go. v. Stigler, 61 N. Y., 348.) The rule that a deed where the description is uncertain, must be construed in favor of the grantee, has no application to this case. (Washb. on Real Property [2d ed.], 669, § 36 ; Oity of Boston v. Biohardson, 13 Allen, 146; Kent’s Com., vol. 2 [5th ed.], 556.)

      M. J. Shoeoraft, for the defendant.
    The defendant’s deed, properly construed, gives him title to all the land between Madison street and the northerly side of said mill-race, which included the land in dispute, as it was when the defendant received his said deed in 1864, from Sands Higginbotham and wife. The rule of law is, that courses, distances and quantities must yield to fixed and known objects and monuments, whether natural or artificial. (Allerton v. Johnson, 3 Sandf. Oh., 72; Wendell v. The People, 8 Wend., 183, 190; Jackson v. Gamp, 1 Cow., 605 ; Jackson v. Ives, 9 id., 661; Baynor v. Timerson, 46 Barb., 518 ; Smith v. McAllister, 14 id., 434; see opinion of the court, 440; Jones v. Halstien, 47 id., 311; 44 id., 463; Washburn on Real Estate, vol. 2, p. 662, and cases cited; Boat v. Puff, 3 Barb., 353 ; Jackson v. MoGonell, 19 Wend., 175; 15 Johns., 471; 3 Sandf. Ch., 72; 27 Barb., 196.)
   Bocees, J.:

After careful study of this case I am led to the conclusion, that the construction given to the defendant’s deed by the learned judge at the Circuit was correct. He held that the defendant’s title extended southerly from the south line of Madison street 100 feet, and no more ; under which ruling the plaintiff was entitled, according to the proof, to the strip of land south thereof, as claimed in the complaint. This ruling was based on the language and legal import of the description contained in the defendant’s deed. The deed bore date March 7, 1864, and purported to convey to the defendant certain premises'therein described, as follows, to wit: “ All that certain building lot or piece of land situate in the village of Oneida, on the southerly side of Madison street, between the easterly line of the canal feeder and the public alley, of thirty feet in width; extending from Madison street to Phelps street; said building lot being ten feet on Madison street, thirty-two feet in rear, on the northerly side of the mill-race, and 100 feet in depth from front to rear, containing 2,100 square feet of ground.”

The defendant insisted that under the language of this description, when properly construed, he had title to all the land'between Madison street and the northerly side or line of the mill-race. The court held otherwise, and decided that the deed gave him no title south of a line 100 feet .from Madison street, and directed a verdict for the plaintiff. It is a well settled and very familiar rule of law, that in giving construction to deeds of conveyance, courses, distances and quantities must yield to fixed and known objects and monuments, whether natural or artificial. So, it is claimed here, that the mill-race was given as a fixed and certain object or monument designating the southern boundary of the lot intended to be conveyed. But the entire description must be read in order to determine its fair import; and if there be words of qualification or explanation, they must be considered in order to arrive at the intention of the parties.

It is the paramount duty of the court to carry such intention into effect when consistent with the rules of law. Now, in this description the lot is designated as “ on the northerly side of mill-race ; ” and to make the description of the south line certain and quite exact, it is added, and 100 feet in depth from front to rear, containing 2,100 square feet of ground.” The front was on Madison street, a well defined and recognized line, and 100 feet was given therefrom ; and that this monument should unmistakably control, there was further added, “ containing 2,100 square feet of ground; ” which would be the precise number of square feet in the lot ten feet wide in front, thirty-two feet wide in rear and 100 feet deep. The words, “ on the northerly side of mill-race,” do not of necessity fix and. determine the exact location of the line. These and similar words may be, ■ and frequently are, but descriptive of general location, the exact line being made certain by other words, or terms importing precision and exactitude. This has been repeatedly held in the reported cases. (Wilson v. Inloes, 6 Gill, 121; Rix v. Johnson, 5 N. H., 520; Bowman v. Farmer, 8 id., 402; Marsh v. Marshall, 19 id., 301.)

It is manifest, I think, that these words, as used in this description, are not so entirely controlling as to fender nugatory the very explicit declaration that the lot should front on Madison street and extend therefrom 100 feet in depth, and should contain the precise number of square feet of ground, which that depth would afford estimated by the given'width. It has been remarked by high authority that in some cases, when the lines are so short as to be evidently susceptible of entire accuracy in their admeasurement, and are defined in such a manner as to indicate an exercise of this accuracy in describing the premises, such description is regarded with great confidence as a means of ascertaining what is intended by the language. And, again, the rule is well settled that words of general description in a deed will be controlled and made certain by particular description. But it may be here observed that there is, in point of fact, no incongruity in the description which locates the lot “ on the northerly side of mill-race,” and yet limits its south line to 100 feet from Madison street. The following cases have a bearing on the case in hand in a greater or less degree, and as is believed, favorable to the views above expressed : Seaman v. Hogeboom (21 Barb., 398); Townsend v. Hayt (51 N. Y., 656); Frost v. Spaulding (19 Pick., 445); Blaney v. Rice (20 id., 62); B., N. Y. and E. R. R. Co. v. Stigeler (61 N. Y., 348).

Now, there are points of entire certainty in the description of the lot conveyed by the defendant’s deed which, as it seems to me, must control its construction. Madison street is undeniably its northern boundary; on this ■ street it abuts ten feet; the lot was declared to extend back therefrom 100 feet, and was-to have there thirty-two feet width. These lines are short and are susceptible of entire accuracy of measurement. So, too, the area is expressly declared in square feet, corresponding precisely with this measurement. In this view of the case it must follow that the construction given to the deed by the learned judge at the Circuit was the correct one.

There is no basis for the claim that the deed to the plaintiffs was void, because of the defendant’s alleged adverse holding of the locus in guo at the time it was given. To render such point available the adverse holding must have been under a claim of some specific title. A general assertion of ownership, irrespective of any particular title, will not avail. (Crary v. Goodman, 22 N. Y., 170; Hallas v. Bell, 53 Barb., 247.) Here the defendant made no show of title covering the premises in controversy. Nor is there any basis for the claim that the defendant had acquired title by adverse possession. All' the rights he obtained prior to his deed, which bore date March T, 1864, were such as originated in the license to Buswell, and such as he acquired under his lease for ten years, dated October 5, 1854; yet both instruments under which he occupied recognized Sands Higginbotham, who was plaintiff’s predecessor in title, as owner.

Thus it seems that the evidence given on the trial, tending to show possession and acts of ownership on the part of the defendant, as detailed in the bill of exceptions, was quite immaterial, and the learned judge was right in holding that the defendant was not entitled to go to the jury on the questions proposed by him and for the purpose declared.

The plaintiffs are entitled to judgment on the verdict, with costs.

LEARNED, P. L, concurred ; BoarDman, J., took no part.

Motion for new trial denied and judgment ordered for plaintiff on verdict, with costs.


author: BooKes, J.:

text:
    Le ROY E. BOWE, Respondent, v. PHILIP GANO, Appellant.

      Statute of limitations — what payment amoids — Practice — nonsuit — exception to— request to go to ju/ry.

    Where a payment, larger than any one item thereof, is made upon a claim for professional services with no directions for the special application thereof, and there are no circumstances from which such direction can be inferred, such payment is effectual to avoid the statute of limitations, and an action may be maintained upon such claim at any time within six years of such payment.

      Qucere, whether, when a nonsuit or a verdict is directed at the Circuit, the party excepting thereto should not ask that the case be submitted to the jury, if he desires to insist upon appeal, that the court erred in not making that disposition of the case?
    This is an appeal by the defendant from a judgment rendered od the verdict of a jury.

      The plaintiff, an attorney and counselor of this court, rendered professional services for the defendant amounting in value, including disbursements, to the sum of $134.01. The defense was payment and the statute of limitations.
    The first service for which a charge was made was in 1861, and the last was in November, 1863. There were three payments made by the defendant on the bill: one of five dollars in 1865 ; one of five dollars in July, 1868, and a third of fifty dollars in July or August, of the same year. The balance due, with interest, at the time of the trial, was $171.43 for which sum the court directed a verdict in favor of the plaintiff. The action was commenced April 15, 1874. The plaintiff testified to the services and disbursements as charged, and also to the payments as above stated. He also testified to the making out of the account and its presentation to the defendant in 1868. The defendant on his examination did not deny the rendition of the services nor the expenditure for disbursements, nor the payments as sworn to by the plaintiff, but denied that he ever received an account from the plaintiff, or saw his account or the items, until November 22, 1872. The defendant did not ask to go to the jury on the proof; but merely excepted to the ruling of the court in directing the verdict. From the judgment entered on the verdict, the defendant appealed to the General Term.

      Bowe db Shumwcvy, for the respondent.

      Lynes <& Van Horne, for the appellant.
   BooKes, J.:

The defendant made no request to have the case submitted to the jury on the evidence. Having omitted so to do, it may, perhaps, be a question whether the exception to the ruling of the court, in directing a verdict for the plaintiff, raises the point that the case was one proper for the consideration of the jury. In Bidwell v. Lament (17 How., 357), a nonsuit was directed against an exception. It was held that there should have been a request to submit the case to the jury, if the party had so desired. (See also, Clark v. The Mayor, 24 How., 333; Terry v. Bonesteel, 25 id., 422; Hotchkins v. Hodge, 38 Barb., 117, 123; O’Neill v. James, 43 N. Y., 84, 93; Winchell v. Hicks, 18 id., 558; People v. Holmes, 5 Abbott, 420; Dows v. Crary, 28 Barb., 157, 180, 181; McGuire v. Sinclair, 47 How., 360, 367; Carnes v. Platt, 6 Rob., 270; Bunge v. Koop, 5 id., 1; Mallory v. Tioga R. R. Co., 5 Abbott [N. S.], 420, 424; but to the contrary see Bridgeport City Bank v. Empire Stone Dressing Co., 30 Barb., 421; Sheldon v. F. and M. Ins. Co., 26 N. Y., 460; Low v. Hall, 47 id., 104; Stone v. Flower, id., 566; Train v. Holland Purchase Ins. Co., 62 id., 598; Backman v. Jenks, 55 Barb., 468.) This question, however, need not here be determined, for even if there had been such request, I think the case was properly disposed of by the court. There was no conflict of evidence on its controlling points. The performance of the services, and the value of such services, including the items for disbursements, were not disputed; nor were the payments denied as testified tp by the plaintiff. Nor was it denied that such payments were made to apply on the account or indebtedness which the plaintiff held and claimed against the defendant. The last payment was of fifty dollars; a sum exceeding any one item of indebtedness, showing an intention to make payment upon the entire claim. This payment was, too, within six years prior to the commencement of the action. Thus the case was left to stand on the question of law, whether a payment on the indebtedness by the defendant to the plaintiff within six years prior to the bringing of the suit, saved the plaintiff’s demand from the operation of the statute of limitations. The case was, therefore, for the court; and it became the duty of the court to direct a verdict. The ruling in favor of the plaintiff on 'this question, was also in accordance with the law,- as declared in a long and uniform line of decisions. It has long been held that payment by the debtor of part of a debt, or of a sum to apply on the indebtedness, is evidence from which acknowledgment of the residue will be implied. So it has been held repeatedly, that payment is equivalent to a new promise. This was the law prior to the Code and remains the same since. (Code, § 110; Miller v. Talcott, 46 Barb., 167; Rich v. Niagara Co. Savings Bank, 10 N. Y. Sup. Ct. Rep. [3 Hun], 481; Mensch v. Mensch, 2 Lans., 235; Peck v. Steamship Co., 5 Bos., 236; Shoemaker v. Benedict, 11 N. Y., 176, 186; McLaren v. McMartin, 36 id., 88, 90; Smith v. Velie, 60 id., 106, 111.) Here we have a ease of payment on a claim of general indebtedness, with no direction for special application of it,.nor circumstances from which such direction could be inferred. Such pay-' ment was effectual to avoid the statute, according to the cases cited; and the learned judge was right in-directing a verdict, the question presented being one of law merely.

As regards the interest which was allowed, no question was raised on the trial.

The judgment must be affirmed, with costs. The case shows an order at the Circuit, that if a case and exceptions should be made and served, then the same should be heard in the first instance at General Term. But it also appears that judgment was entered on the verdict, and that an appeal in due form was taken therefrom. The case is consequently treated as here on the appeal from the judgment.

Judgment affirmed, with costs.

Learned, P. J., and BoabdmaN, J., concurred.

Ordered accordingly.