author: LeaeNed, P. J. :

text:
    JOSEPH HILLIS and others, Appellants, v. ADAM C. HILLIS, Respondent, Impleaded with IRA B. KERR, Executor, etc.

      Legacy — when real estate, and when peetmiary — when a charge on real estate — who takes upon lapse — jurisdiction ofsmrogate.

    A testator, by his will, gave to his wife a legacy of $1,000, declaring it to be a lien upon, and to be paid out of, his real estate, and in lieu of dower. He gave legacies to each of his children, charged on his real estate, and devised his residuary estate, after payment of debts and legacies, to the respondent. The wife died in the life-time of the testator.

      Held, that the legacy to her was simply a pecuniary one, charged upon the residuary devise, and not an exception from such devise, and that upon her death the legacy lapsed, and the residuary devisee was relieved from the payment thereof.

      Semble, that the old rule 'that where a devisee of land dies before the testator the land devised goes to the testator’s heirs-at-law, and not to the residuary devisee, is not in force in this State.

      Semble, that the surrogate has no jurisdiction to decide whether a devise of what is claimed to be real estate, has passed, upon the death of the devisee before the testator, to the heirs-at-law of the testator, or to the residuary devisee.
    Appeal from a decree of the surrogate of Delaware county, upon the final accounting of Joseph Hillis and Ira B. Kerr, as executors of the will of Adam Hillis, deceased.
    The testator made his will May 14, 1866, and died December 11, 1874. In his will he gave his wife, Elizabeth Hillis, a legacy of $1,000, besides the use of a portion of his real estate during her life-time, and declared the legacy to be a lien upon, and to be paid out of his real estate, and that it should be received and accepted by her in lieu of dower. He also gave other legacies to each of six children (the appellants hero), which he also declared to be a lien upon his real estate, and he then gave all the rest, residue, and remainder of his real and personal property, “after paying the above legacies, his just debts, and funeral expenses,” to his youngest son, Adam C. Hillis, who is the respondent upon this appeal. The testator’s wife, Elizabeth Hillis, died before him, and in December, 1872. Upon the accounting the appellants claimed that the testator died intestate as to the $1,000 given to his wife, and that the same should be divided equally among his. children as his heirs-at-law. The surrogate decided that the heirs-at-law were not entitled to the legacy of $1,000 given to the testator’s wife, on the ground that it lapsed by the death of the wife before the testator, and fell into and became a part of the residuary estate given and devised to the respondent, Adam C. Hillis, who thus took the real estate devised to him discharged from the payment of the legacy. From that part of the surrogate’s decree this appeal has been brought.

      Gleason & Murray, for the appellants.

      W. Youmans, for the respondent.
   LeaeNed, P. J. :

The will of the deceased, among other things, gave to his wife a legacy of $1,000 “to be paid out of my real estate.” It declared this to be a lien on his real estate and to be in lieu of dower. It also gave a legacy of $200 to each of his six children, which was to be a lien on real estate. After payment of all legacies and debts, the will gave the residuary estate, real and personal, to Adam C. Hillis, the respondent.

On the final accounting of the executor it was found that there was not enough personal property to pay the six legacies given to the children in full,, after paying debts and expenses; and it was directed that said legacies should be paid j/ro rata.

The wife of the testator did not survive him. On the final accounting, the heirs of the deceased (other than the respondent), claimed to be entitled to that legacy of $1,000. The surrogate in his decree says : “ The claim of the aforesaid heirs-at-law to the $1,000 given to Mrs. Elizabeth Hillis in the first clause of said will is disallowed on the ground that the legacy lapsed by the death of the said Elizabeth Hillis before the testator, and fell into and became a part of the residuary estate, given and devised to Adam C. Hillis, who takes the real estate devised to him, discharged from the payment of said legacy.” From this part of the decree the heirs-at-law of the deceased (other than the respondent) appeal.

I am not able to see what right the surrogate had to pass upon the question whether or not the heirs-at-law, by virtue of this legacy, had a lien on the real estate of the respondent. The personalty was the primary fund for the payment of this legacy, although it was charged on real estate. (Hoes v. Van Hoesen, 1 N. Y., 120.) As there was not enough personal property to pay the appellants their legacies in full, they could have received no more from the personal property, if, as they claim, this legacy did not lapse. But if this legacy be, as they insist that it is, quasi real estate, which they have inherited as heirs of the deceased testator, and not as the -next of kin of a legatee or devisee, then it does not seem to be within the surrogate’s jurisdiction. But, perhaps, this part of the decree might be conclusive against the parties in any other litigation, and therefore it should be examined.

The claim of the appellants rests on two propositions. First, that when a devisee of land dies before the testator, the land devised does not go to the residuary devisee, but descends to the heir as land not devised. Second, that a legacy charged on land is treated as land to such an extent that it follows this rule.

There is no doubt that.the law formerly was that, when a devise of land failed by the death of the devisee before that of the testator, the land thus devised' went, not to the residuary devisee, but to the heir. (Van Kleeck v. Dutch Church, 20 Wend., 498.) The reason for this was that, as to the real estate, the will was held to speak as of the time when it was made, not as of the date of the testator’s death. And, to go a step further, the reason for that rule was this.

The power to dispose of land by will was lost after the conquest. When it was regained, it came under the form of a right to dispose of uses. The appointment of uses was a present act; and therefore a will of land was held to speak as of its date. When the right of devise was given by the statute of 32 Ilenry YIII., chapter 2, the doctrine still remained that a will of land dealt with the legal interest held by the testator at the time of making the will. But this rule has been changed by our Revised Statutes; and wills of real estate now speak as of the date of the testator’s death. (McNaughton v. McNaughton, 41 Barb., 51; affirmed 34 N. Y., 201; Youngs v. Youngs, 45 id., 254.) And it seems to be the better opinion that this has changed the rules as to lapsed devises, and that lapsed devises now fall into the residuum.

But probably it is not necessary in this case to decide that question. For the legacy in controversy was a gift of money; and it must be treated as auy other lapsed legacy, unless the fact that it was charged on land gives it the character of real estate.

There are undoubtedly some cases which favor the claim of the appellants. But it will be found that in nearly if not quite all of such cases, the will contained more than a mere charge of the legacy upon land. Thus in Arnold v. Chapman (1 Ves. Sen., 108), there was a devise upon condition. In Gravenor v. Hallum (4 Bro. C. C., 321 n.; Amb., 643), a rent charge of ten pounds a year was created. And without citing other cases, we may refer to the language of the master of the rolls in Kennell v. Abbott (4 Ves., 811), who said: “It is now perfectly settled, that if an estate is devised charged with legacies, and the legacies fail, no matter how, the devisee shall have the benefit of it and take the estate.” Or, as was said again, “ if the devise to a particular person, or for a particular purpose, is to be considered as intended by the testator as an exception from the gift to the residuary devisee, the heir takes the benefit of the failure. If it is to be considered as intended by the testator to be a charge only on the estate devised, and not an exception to the gift, the devisee will be entitled to the failure.” (Cooke v. Stationers' Company, 3 My. & K., 264.)

Now, applying this rule to the present case, we see that the object of the testator was to provide for his. wife by securing to her this sum. It was not his plan to except out a certain part of the value from the devise to the residuary devisee. That is, the intention of the testator was not directed to the diminution of the residuum by taking a certain value from it; but it was directed to the making of the legacy secure to his wife.

The provision of the will in question was then simply a charge of the pecuniary legacy, not an exception from the residuary devise. (2 Red. on Wills, 173, § 25; In re Cooper’s Trusts, 4 De Gex M. & G., 757.)

It follows, therefore, that the lapse of the legacy by the death of the wife left the residuary devise unincumbered.

The decree must be affirmed, with costs against appellants.

Present — Learned, P. J., BoardmaN and Westbrook, JJ.

Decree affirmed, with costs against appellants.


source: Caselaw Access Project

author: LeaNred, P. J.:

license: Public Domain

text:
    WILLIAM EDGERLY, Respondent, v. LEONARD BUSH, Appellant.

      Chattel mortgage — when mortgagee becomes owner — sale of mortgaged chattels — goveimed bylaws of 'place — Right of purchaser at market overt in Canada — when foreign laws need not be pleaded.

    March 9,1875, one Baker, formerly a resident of Canada, hut then a resident of Moriah, in this State, executed to the plaintiff a chattel mortgage upon a span of horses, which was duly filed in the town clerk’s office in Moriah. The money secured to he paid hy said mortgage was payable in installments, the first installment being- payable June 1, 1875. Subsequently Baker removed to Canada, taking the horses with him. November, 1875, the horses being in the possession of one De Lisle, a regular trader dealing in horses, were sold by him, in Canada, to one Bromly, of Plattebui-gh. Bromly, hearing after-wards of plaintiff’s claim, took the horses back to Canada and sold them to defendant, who'had notice of plaintiff’s claim. In an action brought by the plaintiff for the conversion of the horses, defendant having refused to deliver them up after demand duly made.

      Hold, that default having been made June 1, 1875, in the payment provided in the mortgage to be then made, the plaintiff was to be regarded as the legal owner of the horses at the time of their removal to Canada.
    That the validity of the title acquired by Bromley in his purchase from De Lisle was to be determined by the laws of Canada.

      That by those laws Bromly having purchased “ from a trader dealing in similar articles,” the plaintiff could not reclaim them without reimbursing to him the price he had paid.
    That defendant could rely upon the title acquired by Bromly, even, though he had notice of plaintiff’s claim.
    In an action for conversion, a defendant may show any facts tending to show title in himself, without specially pleading them, e. g. — the laws of a foreign country.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of the referee.
    One Stephen Baker was born in Lower Canada and resided there till 1873. In that year he went to Moriah, in New York, and engaged there in the business of keeping a hotel and livery stable, and resided there. While a resident of Moriah he executed to the plaintiff, a resident also of Moriah, on the 9th day of March, 1875, a chattel mortgage for $850 on property, including the span of horses in question. This mortgage was duly filed in the town clerk’s office in Moriah, March 10, 1875. The sum was payable in monthly installments, the first payment to be made June 1, 1875. The mortgage contained a clause, that on non-payment, or in case of removal of the property, or if the mortgagee deemed it necessary, he might take possession; otherwise the property was to remain hi the mortgagor’s possession until the time for the first payment. No part of the sum has ever been paid. On the 10th of May, 1875, Baker returned to Lower Canada, taking the property with him, and there he has resided ever since.
    In November, 1875, at St. Jean Chrysostom, in Lower Canáda, one Francis De Lisle, of that place, a regular trader, dealing in horses, sold the horses in question to one Bromly, a resident of Plattsburgh, in this State, receiving in exchange another horse and something to boot. Bromly made the purchase in good faith, and in ignorance of the plaintiff’s claim. The horses were in De Lisle’s possession at the time, and were at once delivered to Bromly, and immediately brought by him to Plattsburgh. It does not appear how the horses came into the possession of De Lisle.
    On the 10th of December, 1875, Bromly learned that the plaintiff claimed to have a mortgage on the horses. To prevent their seizure by the plaintiff, be immediately removed them to Canada for the purpose of trading back with De Lisle. On the 13th of December, 1875, in Canada, Bromly sold the horses to the defendant, receiving from him in exchange a span of horses, and giving him something to boot. At that time the defendant was a resident of this State, and owned land in Canada. The horses in question remained in Canada, and since then, and up to the time when this action was commenced, they had not been brought hito this State. The defendant was informed by Bromly that he had run the horses into Canada to avoid a claim or seizure under a mortgage
    This action was brought for the conversion of, the horses, the defendant having refused to deliver them on demand. No offer was made by the plaintiff to pay to the defendant what he had paid, or what Bromly had paid for the horses. The defendant interposed a general denial, and claimed that Bromly by his purchase from De Lisle .obtained a good title under the laws of Canada, which passed to defendant in Ms purchase from Bromly.

      B. M. JBechwith, for the appellant.

      Waldo & Graver, for the respondent.
   LeaNred, P. J.:

We may assume tnat, after Baker took the horses into Canada, the plaintiff, according to the laws of this State, became the owner by the non-payment of the installments of the mortgage. We are to inquire, 1st. Whether the effect of the sale by De Lisle to Bromly was such, under the laws of Canada, that the plaintiff could not have recovered in Canada the horses from Bromly, at least without reimbursing him the price paid; and 2d. If this be so, how the present action is affected by that rule of law.

The plaintiff, in the outset, objects that the laws of Canada were not pleaded. It was not necessary to plead them. Any facts tending to show title in the defendant, or to negative the conversion, may be proved. It was not necessary for the defendant to plead the facts which showed title. Again, the plaintiff insists that the defendant was not a bona fide purchaser. It is of no consequence whether he was or not. If Bromly did not get a good title by his purchase from De Lisle, then the defendant acquired no title, whatever his bonafides. If Bromly did get a good title by his purchase from De Lisle, then the defendant has the benefit of that good title, whatever his knowledge. The purchaser always has the benefit of the bona fides of the vendor. This is an old principle. Otherwise, by notice given to those about to deal with him, the vendor might be deprived of the benefit of his bona fides.

The Code of Lower Canada contains several articles important to this controversy. Article six declares that movable property is governed by the domicile of the owner; but that the law of Lower Canada is applied in several cases, “and also in other cases specially provided for by the Code.” Article 1489 is as follows: “ If a thing lost or stolen be bought in good faith in a fair or market, or at. a public sale, or from a trader dealing in similar articles, the owner cannot reclaim it without reimbursing to the purchaser the price he has paid for it.” Article 2268. “Actual possession of a corporeal movable by a person as proprietor, creates a presumption of lawful title. * * * Prescription of corporeal movables takes place after three years. * # * This prescription is not, however, necessary to prevent re-vendication, if the things have been bought in good faith hi a fair or market, or at a public sale, or from a dealer dealing in similar articles. * * * Nevertheless, so long as prescription has not been acquired, the thing lost or stolen may be re-vendicated, although it have been bought in good faith in the cases of the preceding paragraph; but the re-vendication in such case can only talce jpla.ce upon reimbursing the purchaser for the price which he has paid."

These laws were proved as facts on the trial. It was further shown by evidence that chattel mortgages are not recognized by the law of Lower Canada; and the opinion was expressed that chattels mortgaged, in another country would not be affected by the mortgage when brought into Canada.

But, if we assume that the mortgage to the plaintiff gave him ' the title to the horses after June 1, 1875, even in Canada, yet we find that the horses were in the possession of De Lisle, as proprietor; that is, as one claiming to own them. And he was a trader, dealing in horses. Bromly bought from him in good faith. And, by article 1489, the plaintiff could not reclaim the horses, without paying Bromly the price he had paid.

If the question were between the plaintiff and Baker, or between persons claiming title through them severally, then, although the laws of Lower Canada do not recognize chattel mortgages, probably the courts of that country would enforce the rights of the mortgagee as established by the laws of this State. (Taylor v. Boardman, 25 Vt., 581; Jones v. Taylor, 30 id., 42; Cobb v. Buswell, 37 id., 337.)

But the cases last cited do not apply to the present case. For the question here is, admitting that the plaintiff' was the owner of the horses, up to the time of the sale by De Lisle, whether that sale did not convey a good title. The article above cited is an enactment of the doctrine of market overt, and of the custom of London, extended to all traders. “Sales and contracts of anything vendible, in fairs or market overt, shall not only be good between the parties, but also binding on all those who have any right or property therein. * * * In London, every shop in which goods are publicly exposed to sale is market overt, for such things only as the owner professes to trade in.” (2 Bl. Com., 449.) A sale in market overt binds infants, femes covert, idiots and lunatics, and men beyond sea or in prison. (Id., 450.) The object of the law is, “ that the buyer, taking proper precautions, may at all events be secure of his purchase.” (Id., 449.

There seems, therefore, to be no reason to doubt that, according to the law of Lower Canada, Bromly acquired a good title, subject only to the owner’s right of reclamation on reimbursing Bromly what he paid. And it may be noticed, in passing, that in regard to horses sold in market overt, the English statutes gave a similar right of reclamation to the owner, on reimbursing to the purchaser the price paid bona fide. (Id., 451.)

The case of Wheelright v. De Peyster (1 Johns., 471) involved a question somewhat similar; that is, as to the effect of a sale in a foreign country. But the court there stated that no local law was alleged or proved, and that the question was to be governed by the general principles of sales. In the absence, then, of any proof of the existence in the foreign country of a law like that of market overt, the court would presume that the law was the same there as in this State. In the present case the foreign law has been proved. Article 2268, above cited, explains the law of Lower Canada more fully. A term of three years is necessary to obtain title of movables by prescription. But this time is not necessary to prevent revendication (that is, a claim of the property), if the things have been bought in good faith * * * from a trader dealing in similar articles. Yet until that time has elapsed, there may be a revendication on reimbursing the purchaser.

If such, then, was the effect of the sale by De Lisle under the laws of Lower Canada, it remains that we inquire how this affects the rights of the present parties. We have already seen that the defendant has all the rights of Bromly. (Alexander v. Pendelton, 8 Cranch, 462.) The defendant then is the owner, unless we deny to the sale by De Lisle any effect out of Canada. The validity of a contract is to be decided by the law of the place where it was made. If valid there, it is by the general law of nations held valid everywhere. (Story Conf. Laws, § 242.) The validity of a contract of sale depends on the laws of the State where made. (French v. Hall, 9 N. H., 137; Blanchard v. Russell, 13 Mass., 4; Kentucky v. Bassford, 6 Hill, 526.) To the same effect is the elaborate opinion in Martin v. Hill (12 Barb., 631). In that case a chattel mortgage was made and duly filed in this State. The mortgagor removed the property into Vermont, where it was seized under an execution against the mortgagor. In an action by the mortgagee against the constable who seized the property, it was held that the plaintiff could recover. This was on the ground that the contract of mortgage, valid here, would be held valid in Vermont. And so the contract of sale, in the present case, valid in Lower Canada must be held valid here. So, if Bromly had been a more purchaser from Baker, we must probably have hold that Baker could give no title, even in Lower Canada, except subject to the mortgage. But Bromly was not a purchaser from Baker, or from the plaintiff. Nor does he claim under either of them; but he claims only under De Lisle and by the effect of the law of Canada above stated. That law must make that sale valid against ‘1 men beyond sea ” — against every one.

For these reasons tlio judgment should be reversed, and a new trial granted; reference discharged; costs to abide the event.

Present — Learned, P. J., Boardman and Bocees, JJ.

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


author: LEARNED, P. J.:

text:
    FRANCES M. THOMPSON, Plaintiff, v. THE COMMISSIONERS FOR LOANING CERTAIN MONEYS OF THE UNITED STATES, OF THE COUNTY OF OTSEGO, Impleaded with others, Defendants.

      Mortgage to loan com/missionei's — default in payment of interest — effect of— right of redemption, purely statutory.

    A mortgagor, in a mortgage given to tire commissioners to loan the United States Deposit Fund, having failed for more than twenty-three days after the first Tuesday of October to pay the interest due thereon, the mortgaged premises were advertised for sale and sold. The mortgagor, claiming that the proceedings preliminary to the sale were irregular and the sale void, delivered to the commissioners a notice stating that she offered to pay the amount due for principal and interest on the mortgage, and to redeem the premises, and ashing for an accounting of the rents and profits.

      Held, that this was not such a tender as was required by section 33 of chapter 150 of 1837 to revest the title in the mortgagor. ,
    That in such mortgages a default in the payment of the interest worked a foreclosure of the mortgagor’s rights in the mortgaged premises, and his right of redemption was strictly limited to the rights given by the thirty-third section of the act.
    That under said section the mortgagor had no right to an accounting for the rents and profits.
    Motion by defendants for a new trial on a case and exceptions, pursuant to section 1001 of the Code of Civil Procedure, after a decision of the court without a jury, directing the entry of an interlocutory judgment in favor of tbe plaintiff.
    The action was brought by the plaintiff to redeem certain premises, described in the complaint, from the lien of a mortgage given to the loan commissioners appointed pursuant to chapter 150 of the Laws of 1837 to loan the United States deposit fund. It appeared that the plaintiff, Frances M. Thompson, and her husband, John Thompson, on the 9th day of November, 1872, executed and delivered to the defendants, “The Commissioners for loaning certain moneys .of the United States, of the county of Otsego,” a mortgage, conveying the premises described in the complaint, to secure the payment of $953 in four years from the date thereof, with interest thereon, to be paid annually. That this plaintiff was then the owner in fee of one-third of a portion of the land; and that on the 27th day of November, 1872, she became the owner in fee of the remaining part thereof. That the interest which became due on the 9th day of November, 1873, was not paid when the same became due. That the defendants, as Commissioners of the United States Deposit Fund for Otsego county, advertised the premises described in the complaint for sale. That under a sale so had the defendant, Philip Darwin, took possession of the promises described in the complaint without the consent of this plaintiff. ■ That said Darwin conveyed said premises to defendant, Frederick Palmer, and said Palmer sold some portion thereof to the defendant Brownel, and said Palmer and said Brownel were in possession of the premises described in said mortgage and said complaint when this action was commenced. It was claimed that the sale was void for defects in the advertisement, and in sending notices of the sale to the mortgagors through the mail. On the 29th day of November, 1875, the plaintiff served upon the commissioners the following paper: “ I hereby offer to pay the amount due, principal and interest, on the mortgage given by John Thompson and myself to ‘ The Commissioners for loaning certain moneys of the United States of the county of Otsego,’ on the 9th day of November, 1872, to secure the payment of $953 and the interest thereon, and to redeem the premises in said mortgage described from the lien thereof, or that was created thereby; and I also desire an accounting for the rents and profits of said premises since you, or any person claiming under you, took possession thereof, and the amount, when ascertained, paid to me, or to apply on the amount due on said mortgage.

      II. Sturges, for the plaintiff.

      Samuel S. JEdidc, for the defendants.
   LEARNED, P. J.:

Assuming, as was held by the learned justice who tried this case, that the attempted sale by tbe commissioners was void on account of the defects in the advertisement and in the service, the situation of the mortgagors then is that they have failed, for more than twenty-three days, to pay the interest on the mortgage. According to the express language of the statute, therefore, they are utterly barred of all equity of redemption, “any law, usage, custom or practice in courts of equity to the contrary notwithstanding.” (Laws of 1837, chap. 150, § 30.)

This is equivalent to a foreclosure of the mortgagor’s right. (Pell v. Ulmar, 18 N. Y., 139; White v. Lester, 1 Keyes, 316.) Nothing remains to the mortgagors but the statutory privilege of redemption given by section 33 of the act above cited. By that section it is provided that if the mortgagor, at or before the sale of the premises (and we assume, for the present, that there was here no sale — that is, no valid sale), shall pay to the commissioners all such sums of money as shall be due and payable on such mortgage on the first Tuesday of October then next, for principal and interest, and costs and charges of foreclosure, together with the charges for advertising, then the title in fee to the premises shall revert to and reinvest in the mortgagor.

This the mortgagors have not done. All that the mortgagors have done is this. The plaintiff delivered to the commissioners a notice, stating that she offered to pay the amount due for principal and interest on the mortgage and to redeem the premises, and that she desired an accounting for the rents and profits, and the amount, when ascertained, paid to her or applied on the mortgage. She made no tender or offer of tender; nor did she, at the time of serving the notice, have the money specified therein to pay to them, and she has not since had it.

Now, clearly she has not complied with the terms of the privilege given by the statute. It would be absurd to say that this delivery of a written notice had the effect of making the title revert to and revest in the mortgagors. It was her duty to pay to the commissioners the amount due and payable on said mortgage for principal and interest on the first Tuesday of October then next; a day nearly a year after the time when she served the notice. If they should not accept the moneys (as the statute requires them to do), certainly she was bound at the least to make a tender.

Furthermore, there is nothing in the statute right of redemption which authorizes the mortgagor to ask for an accomiting of the rents and profits, as the plaintiff did in this case. It is true that, in the case of ordinary mortgages, a mortgagor may bring an action to redeem, and the matter of a previous tender of the money is generally important only on the question of costs. But the present is not the case of an ordinary mortgage. The ordinary right of redemption, that creation of the courts of equity, is expressly taken away by the statute, and the mortgagor is left to the rights given by the statute and to those alone. The case of Sherwood v. Read (7 Hill, 431) is not in conflict with this view. That action was brought to restrain the giving of a conveyance by the commissioners under a sale alleged to be illegal. The Court of Errors held that the sale was illegal, and reversed the decree of the chancellor who had dismissed the bill. The sale being illegal, the giving of a conveyance under it should be restrained, and the case decides that the commissioners could not lawfully sell on credit.

Again, if this sale is void, as the plaintiff claims, then it is just as if no sale had taken place. The plaintiff has no greater rights against the commissioners than she would have had if they had as yet made no sale. In that case her rights Avould have been to pay the money, and thus redeem: not to bring an action for redemption on a mere offer to pay, unaccompanied even by a tender. Other questions are presented by the defendants, which, in the view above taken, it is uimecessary to consider. We do not, therefore, decide whether or not the sale was valid, or whether the plaintiff has such an interest in the property that she could alone maintain the action.

For the reasons above given, we think the judgment should be reversed and a new trial granted, costs to abide the event.

Present — Learned, P. J., Boardman and Bookes, JJ.

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


text:
    JOHN A. KATHAN, Respondent, v. HARMON ROCKWELL, Appellant.

      Possession by one tenant in common — when not adverse to his co-tenant.

    In 1820, one Rockwell owned the undivided one-half of a lot, including the premises in controversy in this action. The defendant claims title under a conveyance from him. In 183G, one Willis, who claimed to be the owner of the other half, conveyed such equal undivided half of the premises in question to the trustees of a school district, who entered into possession, built a school-house, and occupied the same until about 1873. Subsequently the district sold the premises to plaintiff, he being told after the sale, but before the execution of the deed, that the district had title to but one-half of the premises. He also had knowledge of defendant’s claim thereto.

      Held, that the possession of the district was not adverse to its co-tenant, and that it did not thereby acquire title to the whole premises.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was in trespass for a wrongful entry upon defendant's land. The question involved was the ownership of the land upon which the entry was made.

      W. J. Hillis, for the appellant.

      L. Varney, for the respondent.
   LEARNED, P. J.:

The referee found that one Jeremy Rockwell, about 1820, became the owner of an undivided half of a lot known as the “Wells and Burckmaster” lot, which included the premises in question; that the defendant has shown a conveyance of said lot to himself; that subsequently to 1820, and prior to 1836, one Wells became, or assumed to be, the owner of the other undivided half of that lot.

It appears that on the 29th of September, 1836, said Wells conveyed to the trustees of school district number five, in the town of Hadley, “the equal undivided half of” the premises in question. Under that deed the trustees in 1836 went into possession of the premises, built a school-house and a wood-shed, and graded the premises, or a part of the same. The district continued to occupy the school-house until about 1873. In 1876 the trustee of the school district executed a quit-claim deed of the premises to-the plaintiff. The district did not fence in the premises; but the adjoining owner for some ten years kept up a fence, except .on the side next to the highway. The children played on the premises. There was never a fence around the whole lot.

After the sale by the district, but before the deed was executed to the plaintiff, the trustee stated to the plaintiff that the district had title to one-half of the promises, and that they would give him a quit-claim of their interest.

There was no actual occupation by the district for two or throe years before the sale. The district had had a meeting some four years before, at which the premises had been sold to one Dryer, which sale was not consummated. Evidence was given by the witnesses that it was then announced that the district had title only to one-half. This was denied by the plaintiff.

Some time before the sale to the plaintiff, and at a time when the plaintiff was trastee of the district, one Kenyon claimed to own one-half of the premises by deed from Wells. Kenyon leased the premises and paid one-half of the rent to one of the Rockwells; and afterwards, on discovering that his own title was not good, settled with the plaintiff for the other half.

The learned referee was of the opinion that the possession of the district had become adverse to its co-tenants, the defendant and those from whom he derived title; and thus that the district had acquired a title by possession to the whole premises.

Of course, the doctrine is familiar that the possession of a co-tenant is presumptively not adverse. This is for the reason that one co-tenant has as much right to possession as the other; and, therefore, ejectment will not lie. But it is true, as stated by the referee in his opinion, that such possession may become adverse. In what way ? “ Full possession by a tenant in common for many years will not,per se, constitute adverse possession. (Jackson v. Tibbits, 9 Cow., 241.) There must be an open claim of exclusive right, a refusal to account, or a denial of title to constitute ouster. (Id.) So, again, ouster will not be presumed from a sole possession, unless accompanied with some notorious act or claim sufficient to give character to the possession; as if the tenant purchase his co-tenant’s interest at a sheriff’s sale. (Jackson v. Brink, 5 Cow., 484.) So, if his conduct shows that he means to hold out his co-tenant, and he in fact does exclude him. (Humbert v. Trinity Church, 24 Wend., 587.) In Jackson v. Whitbeck (6 Cow., 632), the father moved away in 1783, leaving a son in possession, who always asserted his title, saying his father gave him the farm. His possession and that of his successors was held to be adverse to the claim of other heirs of the father. So, in Florence v. Hopkins (46 N. Y., 182), the defendant claimed under a deed made in 1811, purporting to convey the whole property, and he and those under whom he claimed had been in actual possession ever since. Such possession was adverse in its very origin. In like manner, in Grim v. Dyar (3 Duer, 359), the defendant held under a deed which in its very terms gave an absolute title to the whole premises.

Now, in contrast with these cases, in the present case the deed which the district took is expressly a deed of an undivided half. That characterizes their possession. It is not the case of one of several heirs, taking possession of the whole property and claiming it. But the district acknowledged, when it took possession, that it was co-tenant with some one. The district has received no actual rents or profits. It has not refused to account for the same. In the nature of the case its possession could not be a source of income. The co-tenant might be willing that the premises should be used as a school-house for the public benefit.

When, however, the district sold the premises, and the purchaser began to assert a right to the whole, then the co-tenant resisted his claim and asserted his own right.

We see by the testimony, also, that when the claim of the Rockwells to one-half of the premises was asserted at a meeting of the district, there is no evidence that it was denied. And again, before the trustee delivered the deed to the plaintiff, he stated to him that the district owned one-half. All these circumstances show that the district had not made a notorious claim to the whole title. They had only enjoyed a sole possession, and this of itself was not adverse. Some other questions are raised in this case. The view taken renders it unnecessary to consider them.

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

Present — Learned, P. J., Boardman and Bocees, JJ.

Judgment reversed; new trial granted; reference discharged; costs to abide event.


author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error, v. ANSON GORHAM, Plaintiff in Error.

      Declarations of conspirator — when admissible, as against Ms co-conspiratcrrs.

    In order to render the declarations and acts of one conspirator admissible as against his co-conspirators, they must have been made while the conspiracy was pending, and in furtherance of the common design.
    Writ of error to the Court of Oyer and Terminer of Chenango county, to review the conviction and sentence of the plaintiff in error of burglary.

      Henry M. Tefft and Issac 8. Newton, for the plaintiff in error.

      John W. Church (district attorney) and George W. Bay, for ■ the people.
   Learned, P. J.:

The prisoner, jointly with Warriner and Bowdish, was indicted for burglary in entering the stable of Shattuck and stealing a horse-brush, on the night of June fifteenth or sixteenth. He was tried separately. On the trial, Warriner, an alleged accomplice, was the principal witness for the people. His testimony tended to show that, on the afternoon of the sixteenth, he and Bowdish, with the prisoner’s consent, agreed to commit some robbery; and, if they bad no success, to return to Guilford, where Gorham was to be, and probably to do some similar crime there. .He further testified that the prisoner and Bowdish, in pursuance of this arrangement, started together and before him that evening; that he followed; that, at a certain point near Shattuck’s, he saw the prisoner’s horse in the road; that he stopped and went towards Shattuck’s barn; that a stranger came driving along the road and ran into the prisoner’s wagon and upset; that this resulted in a scuffle, in which Warriner was struck on the head and the stranger stabbed in the hand; that he returned to his house, and the prisoner and Bowdish came there ten minutes after and said they had been in Shattuck’s barn; and that he and the prisoner and Bow-dish then began to conceal property which was in Warriner’.s house. The witnesses further gave testimony tending to show subsequent acts on the next day, and afterwards, of himself, the prisoner and Bowdish, for the purpose of concealing the crime. There is other evidence tending to show that the horse-brush was taken that night from the barn.

The prisoner denies all of this testimony. The principal question on this appeal is as to the admission of the testimony of Fanny Wood. She testified, under objection by the prisoner, that, on the night in question, Warriner came to her house and asked her to stay at homo; that she did not say much about it, and asked where he was going; that he told her he was going to Smithville Flatts with Bowdish, using language which implied that their pui-pose was robbery; neither the prisoner nor Bowdish were present.

Again, she testified under like objection, that on that same night, between two and four a. m., Warriner came to her house; and she asked him what made him so bloody; he said he was hurt, and asked her to get water to wash his head; she did so, and asked him where the injury occurred; he answered, “ down belowhere,” and said that the prisoner and Bowdish were with him. Neither of them were present. The prisoner’s counsel asked the court to charge that the jury should not take Fanny Wood’s testimony into consideration, as to where they were going that night. The court declined. The court spoke of her as a corroborating witness, and left the question of her credibility to the jury, to which the prisoner excepted. It appears, therefore, that the testimony of Fanny Wood was considered by the court as important, and such as the jury should regard. ■

The counsel for the people insists that the evidence was proper, first, on the ground that Fanny Wood was a confederate in the conspiracy. * I do not see that this is proved as a matter of fact. There is nothing to show that the request to stay at home was consented to; nothing to show that if it had been consented to, it would have had anything to do with the plan for robbing. It was not proposed that the goods should be brought to her house. The relations between her and Warriner explain the request that she should stay at home. She told him that, if he went with Bowdish, she hoped. he would be caught.

I find no evidence in the case showing that she was a confederate. Again, it is insisted that this evidence was admissible, on the ground that Warriner, the prisoner, and Bowdish were confederates and conspirators. The prisoner’s counsel urges, on the other hand, that there is no evidence of a conspiracy to commit the act for which the prisoner is indicted, and that all of which there is any evidence is of a conspiracy to commit another crime, which was afterwards abandoned. And further, even if the proof of conspiracy pointed to this very crime, the prisoner’s counsel insists that the evidence was not admissible. “The evidence of what is said or done by the other conspirators must be. limited to their acts and declarations made and done while the conspiracy was pending, and in furtherance of their design; what was said or done by them before or afterwards not being within the principle of admissibility.” (3 Greenl. Ev., § 94.) Mr. Greenleaf properly says that this is the same principle of identity that governs in regard to the acts and admissions of agents when offered in evidence against their principal. And the rule in the case of agents, is that the declarations must constitute part oí a transaction in which the agent represents his principal. It must characterize the act of the agent. (White v. Miller, 71 N. Y., 118.)

Now there is nothing to show that the statement made by Warriner to Fanny Wood in the evening, was made in furtherance of the design. It was a mere statement of his own intention to commit a crime with Bowdish. And so after the alleged crime had been committed, and Warriner had come to Fanny Wood to have his head washed, his statements to her then made were, in no way, a part of the res gestae. The enterprise had been accomplished or abandoned, whichever view is taken of the conspiracy.' And Warriner’s subsequent acts or admissions were not evidence against the prisoner. (1 Whart. Crirn. Law, § 703.) The important part of his statement was that the prisoner and Bowdish were with him when he was injured. That was a mere unsworn statement made after the crime had been committed, and was in no way a part of the transaction. It will be seen that Warriner testifies that, after the affray, the prisoner and Bowdish had come to his house, and had gone away again to their own house to put away some goods (supposed to have been stolen). And it was after that time that Warriner went to Fanny Wood’s and made the admissions testified to. So the alleged crime of burglary and of stealing the horse-brush had been fully completed. The horse-brush lay on the road near Shattuck’s. It was not at the prisoner’s house.

The counsel for the people urge that the evidence was admissible, because on some subsequent days, as is claimed, the conspirators were trying to conceal the crime. But the difficulty is that this 'statement of Warriner’s was no part of the committing or of the concealing the crime. (People v. Davis, 56 N. Y., 102; Kelley v. People, 55 N. Y., 565.)

As Warriner had already testified to the fact that the prisoner was present at Shattuck’s, the proof of his unsworn statement to the same effect would probably not have been of much consequence, if it had not been made important by the charge. The learned judge spoke of Fanny Wood as a corroborating witness, and at the request of the counsel for the people charged that where an accomplice is corroborated as to material points, his evidence becomes entitled to consideration and weight with the jury. It is evident, therefore, that the evidence of Fanny Wood was intended as a corroboration of the accomplice Warriner. But proof of these statements of Warriner were no corroboration of his testimony.

“ The corroboration of an accomplice ought to be as to some fact or facts, the truth or falsehood of which go to prove or disprove the offense charged against the prisoner.” Cited in People v. Haynes (55 Barb., 450), where the principles applicable to this subject are very well stated. That Warrmer stated, not under oath, that the prisoner committed the crime did not tend to prove or disprove the offense.

Being of the opinion, then, that this evidence of Warriner’s statements was inadmissible and prejudiced the prisoner, without examining the other questions presented, we think that the judgment and conviction must be reversed, and the cause remanded to the Court of Sessions for a new trial.

Bocees, J., dissented.

Present — LearNed, P. J., BoaedmaN and Bocees, JJ.

Judgment and conviction reversed and new trial granted; case remitted to Sessions.


author: Leakned, P. J.:

text:
    ZENAS W. MITCHELL, Appellant, v. CHARLES H. MITCHELL and others, Respondents.

      Will — what not a sufficient signing, to satisfy the statute.

    The deceased came into a store where two persons were, produced a paper and said: “I have a paper that I want you to sign.” One of the persons took the paper and saw what it was and the signature of the deceased. The testator then said : “ This is my will; I want you to witness it.” Both persons thereupon signed the paper as witnesses under the attestation clause. The deceased then took the paper and said, “ I declare this to he my last will and testament,” and delivered it to one of the witnesses for safe keeping. At the time when this took place, the paper had the name of the deceased at the end thereof.

      Held, that there'was no sufficient signing of the will by the deceased in the presence of the witnesses, nor a sufficient acknowledgment to them that he had done so, to satisfy the requirement of the statute,' and that the paper was not entitled to he admitted to probate.

      BasTtin v. Baskin (36 N. Y., 416), distinguished.

      Appeal from an order made by the surrogate of Saratoga . county, admitting to probate the will of Titus M. Mitchell, deceased.

      W. B. French, for the appellant.

      L’Amoreaux, Balee & Whalen, for the respondents.
    The will was properly executed as a will of real and personal estate. (Willis v. Mott, 36 N. Y., 486, 496, 497; Jauncey v. Thom, 2 Barb. Ch. It., 40; Gilbert v. Knox, 52 N.Y., 125, 129; affirming Baskin v. Baskin, 36 id., 416; Matter of Will of John Kellum, 52 id. 517; Kinne y. Kinne, 2 N. Y. S. C., 391; Hoysradt v. Kingman, 22 N. Y., 372; Robinson v. Smith, 13 Abb., 359; Kedfield on Wills, 210, 215, note; Thompson v. Seastedt, 6 N. Y. S. C., 78, 80.) The will being in due form and properly attested on its face, and having been drawn by one who was accustomed to drawing and executing wills, authorized the surrogate to find the due execution of it. A substantial compliance with the statute is sufficient. (Matter of Kellum, 52 N. Y., 519; Thompson v. Seastedt, 6 N. Y. S. C., 80; Trustees of Auburn Seminary v. Oalhouse, 25 N. Y., 425; Belding v. Leichardt, 56 id., 680; Sisters of Charity v. Kelly, 67 id., 414; Kinne v. Kinne, 2 N. Y. S. C., 391; Ossar v. Ossar, 24 N. Y., 53; Brinckerhoff v. Brincker-hoff, 8 Paige, 488; Rieben v. Hicks, 3 Bradf. S. B.., 353.) The will was properly published. {Coffin v. Coffin, 23 N. Y., 15; Lewis v. Lewis, 11 id., 227: Brinckerhoff v. Brinckerhoff, 8 Paige, 488.)
   Leakned, P. J.:

The deceased came into the store where the two witnesses were and handed out a paper, and said: “I have a paper that I want you to sign.” One of them took the paper and partly opened it, and saw what it was. The witness probably, from his testimony, saw the signature. The testator said, “this is my will; I want you to witness it.” Then the two witnesses signed the paper under the attestation clause. It does not apper that the other witness saw the testator’s signature. The testator then took the paper and said, “ I declare this to be my last will and testament,” and delivered it to one of the witnesses for safe keeping. At the. time of this transaction the paper bad the name of the deceased at the end of the paper. But the witnesses did not see him sign, nor was there any acknowledgment by him of his signature in their presence, unless the facts above stated are such acknowledgment.

The statute provides a simple mode of executing wills. It provides certain definite safeguards, which are intended to protect both the testator and his heirs and next of kin. The distribution of the property of the deceased person by law is so' equitable, that courts should not attempt to break down these safeguards in order to establish a paper which lacks any of them.

There are four separate clauses in the statute, each of which has its own distinct object. One should not be confused with the other. The second clause is, that the subscription of the testator shall be made in the presence of each of the attesting witnesses. The principal object of this is, that the witnesses may be able to say, from positive knowledge, that the subscription was made by the testator. This is, of course, a matter entirely distinct from their knowledge of the nature of the instrument. Then, inasmuch as a testator might sometimes have subscribed the instrument out of their presence, the clause adds: “ Or shall bo acknowledged by him to have been so made to each of the subscribing witnesses.” That is, the testator must acknowledge that that which purports to be his subscription was in fact made by him. This, too, is quite distinct from the testator’s declaration of the nature of the instrument, which is necessary in either case. Now one defect in this case is obvious. It does not appear that Hawkes, one of the witnesses, saw the testator’s signature, and therefore it cannot be said that the testator acknowledged that signature to him. Acknowledgment of the signature must include the same identification of the written wards as necessarily exists when the witnesses see the testator write.

But again, the signature was not acknowledged to either of the witnesses. If we suppose for a moment that there was no such clause in the statute as the one under consideration, then the testator would, in order to comply with the other clauses, have been obliged to do all that he in fact did. That is, to comply with the other clauses of the statute he would have had to sign the will; to request two persons to witness it; to declare (or acknowledge) to them that the instrument was his last will and testament. All these things he did. But there is in fact one more clause in the statute. Either that clause means nothing, or else it requires something which is not required by the other clauses. It certainly is not meaningless; and we have seen that all which this testator did was required by the other clauses of the statute. Hence it follows that he did not do the acts required by the clause in question.

And such is the fact. He never acknowledged or stated to either of them that the subscription which appears at the end of the paper was made by him. He did, it is true, declare that the whole instrument was his will. But that is not enough. It will be seen by the statute that such declaration is to be made at the time of making the subscription, or at the time of acknowledging the same. Clearly, then, the declaration is a thing distinct from the subscription, or from the equivalent thereof — the acknowledgment. Plainly, then, the declaration cannot include the acknowledgment.

This view is fully sustained by the latest decision of the Court of Appeals on this subject. (Sisters of Charity v. Kelly, 67 N. Y., 409.) The same rule is laid down in Lewis v. Lewis (11 N. Y., 220); in Chaffee v. Missionary Society (10 Paige, 85). It is the doctrine also of Willis v. Mott (36 N. Y., 486). For it will be seen in that case that there were three witnesses, one of whom was dead. The attestation clause was in proper form. One of the witnesses testified that the testator told him that he had signed it in the presence of Hegeman, the deceased witness. Thus there was evidence, by the attestation clause and by this testimony, of a subscription in presence of one of the witnesses, and of an acknowledgment to another of the actual making of the subscription. Thus the testator in that case complied with the provisions of the statute as it is construed above.

The case of Baskin v. Baskin (36 N. Y., 416) appears to be an exception to the course of decisions. It was decided by a divided court; and even in that case, the prevailing opinion says that the testator must verify the subscription of his name as authentic. The opinion further says that there could be no more unequivocal acknowledgment of a signature than the presenting it (that is the signature) “to the witnesses for attestation and publishing the paper so subscribed as his will.” Thus, that remark recognizes the two acts — one, the presenting of the signature to witnesses for attestation; the other, th& publication of the paper as the will of the testator. And the opinion, in the case of Sisters of Charity v. Kelly, declares that the case of Baskin v. Baskin is not in conflict with the rule established by the cases cited above, which are approved in that opinion. And under the facts of the present case there was, at least as to one witness, no presenting of the signature to him for attestation, and .no act done by the testator, which was more than the declaration that the instrument was his will.

The decree of the surrogate 'admitting the will to probate should bo reversed and probate denied.

Present — LeaeNed, P. J., BoardmáN and Bocees, JJ.

Decree reversed; probate denied; proceedings remitted to surrogate, with directions to deny probate. Taxable costs of proceedings before surrogate, and on appeal of both parties, to be allowed and to be paid out of the estate.


author: LeakNED, P. J.:

text:
    CHARLES A. WINDBIEL, Appellant, v. JOHN M. CARROLL, as Executor, and MARY CARROLL, as Executrix, etc., of DAVIS L. CARROLL, Deceased, Respondents.

      Payment under mistake of fact — what is not.

    Plaintiff purchased certain real estate subject to a mortgage owned by defendant, and assumed its payment. Upon settling with defendant, plaintiff claimed that a payment of some $200 bad been made by the mortgagor, which was not credited on the bond; which was denied by the defendant. Plaintiff said that he would pay the amount claimed, but would at once commence an action to recover back the over-payment. Plaintiff haying accordingly made the payment, 'brought this action to recover the money as paid under a mistake of fact, and produced a receipt for $164.66, paid by the mortgagor to the defendant, and not credited on the bond.

      Held, that as plaintiff paid the money with full knowledge of all the facts, he could not maintain this action.
    Ignorance of the means of proving a fact is not ignorance of the fact.
    1 Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit.
    Xavier Misselbeck and Mary, his wife, executed and delivered to Davis L. Carroll, defendants’ testator, tbeir bond conditioned to pay the sum of $1,200, with their mortgage accompanying the same. Thereafter Xavier and Mary conveyed said real estate to Charles Windbiel, this plaintiff, subject to the lien of this mortgage, he assuming the payment of the same. Both Misselbeck and the plaintiff had made payments on said bond before such conveyance to Windbiel. On June 10, 1876, the plaintiff paid the balance claimed by the testator, Dr. Carroll, seven hundred and ten dollars and some cents. At that time plaintiff claimed there had been paid upon such bond and mortgage two sums which had not been credited thereon, one of $90.30 and the other of $164.66, together $254.96. And to recover said two sums so alleged to have been over-paid, this action was brought. On the trial, plaintiff produced a receipt for $164.66, given by Davis L. Carroll to Xavier Misselbeck, which amount was not allowed to the plaintiff when he made the above-mentioned payment on the bond and mortgage.

      Z. S. Westbrook, for the appellant.

      W. L. Van Denbergh, for the respondents.
   LeakNED, P. J.:

When the plaintiff paid up the mortgage to Dr. Carroll, he “ claimed it was not right and that there was not so much due.” He claimed that there had been an over-payment of $200 more than the doctor had credited him on the bond and mortgage. He said that he would pay the mortgage and would commence an action against the doctor to recover it ■ back. There was a dispute between the plaintiff and the doctor ffbout the amount due. And tbe plaintiff, when he paid the bond and mortgage, told the doctor that he would ascertain whether he had overpaid him, and if he had taken out of him more than was due, he would sue him.

This is the testimony of the plaintiff’s own witness, and it is not contradicted. Two or three days afterwards the plaintiff commenced this action. The plaintiff, therefore, when he paid the bond and mortgage, knew (or believed) that he was paying more than was owing. The very fact on which he now seeks to recover was known to him and insisted upon by him at that time, and he made the payment with the intention of suing to recover part of it back again. What he has since discovered (as he claims) is not the fact that $200 more than was credited had been paid, but only the means of proving that fact.

Ignorance of a fact is one thing; ignorance of the means of proving a fact is another. When money voluntarily paid is recovered back, it is because there was a mistake as to some fact. But here the plaintiff was not mistaken as to the fact. Only at the time he did not know how to prove it. The subsequent discovery of evidence to prove a fact, known to the party when he makes the payment, cannot authorize a recovery back of the money. Such a principle would be most dangerous.

I think the judgment should be affirmed, with costs.

Bocees, J., concurred; BoaedMAN, J., dissented.

Judgment affirmed, with costs.


author: BoardmaN, J.

text:
    JAMES POLLOCK, Respondent, v. HORACE WEBSTER and PHILINDA WEBSTER, Appellants.

      Award — agreement signed in pursuance of — when not binding on a married woman —Judgment on alleged joint liability of husband and wife — wife not liable — the judgment cannot be reversed as to the wife, and sustained as to the husband —plaintiff on appeal allowed to discontinue as to wife, and judgment as to husband affirmed.

    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee.
    The action was brought to recover damages for the breach of a written agreement, signed by the parties hereto in pursuance of an award of arbitration, and as a final settlement of all differences between the parties. Upon this appeal it was insisted that the judgment was erroneous as to Philinda Webster, because she had no separate estate, and because it did not relate thereto, and because the instrument did not charge the same with the payment of damages.
    With reference to this point the court at General Term said : “ The pleadings and evidence show that the defendants were husband and wife, and joint owners of the farm on which they lived. There is no evidence of a satisfactory nature that the wife ever owned any other property. It may be suspected, but it is not proved that plaintiff lent defendants money to pay upon the farm owned by defendants jointly. Assuming that to be true, and that the money was so applied, it would not make her the owner of a separate estate. The title which she has as joint-tenant with her husband does not constitute a separate estate. (Baker v. Lamb, 11 Hun, 519, and cases'cited.) Other claims between defendants and plaintiff are frequently referred to in the pleadings, proofs, and submission. But the nature and character of such claims do not so distinctly appear as to sustain the referee’s fifth finding of fact, that the agreement sued upon was for the benefit of her separate estate. It is possible on a further trial it may be shown that the wife had a separate estate to be benefited, and that this contract was made for its benefit. But we are quite clear there is no sufficient evidence of it in this case, and it is probable' it is not true in fact. The learned referee has possibly been led into the very natural error of holding that her estate in the farm was a separate estate under the law. For this error the judgment against the wife must be set aside. * * * From what has been said, it appears that a cause of action was established against the defendant Horace Webster. We see no reasons in the points urged by the appellant for disturbing the judgment as to him, were it not for the error committed against Mrs. Webster. As to her, the judgment is wrong and must be reversed. But under section 1317 of the new Code (section 330 of old) we cannot reverse as to one and affirm as to the other defendant in this case, because the cause of action is joint, and a several judgment would not be proper. (Geraud v. Stagg, 10 How., 369, 373; Story v. FT. Y. & II. B. It. Go., 6 N. Y., 86, and note; Arthur v. Griswold, 55 id., 400.) Hence we are compelled to reverse this judgment and grant a new trial; costs to abide event; and discharge the reference; unless the plaintiff stipulates that the complaint be dismissed as to the wife, with costs, in which case judgment is affirmed as to the husband, without costs.”

      O. F. Thompson, for the appellant. S. W. Bussell, for the respondent.
   Opinion by

BoardmaN, J.

LearNed, P. J., and Bocices, J., concurred.

Judgment reversed and new trial granted; costs to abide event; reference discharged; unless plaintiff stipulate that complaint be dismissed, with costs, as to the wife; in which case judgment affirmed, without costs, as to the husband.


author: per Curiam.

text:
    JAMES WILEY, Respondent, v. ELISHA M. BRIGHAM, Appellant.

      Account stated — what constitutes — powei- of referee to allow amendment.

    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee.
    The court at General Term said: “ This action is brought on a balance struck or account stated, and also for labor and services since the time when the account was stated. No question seems to be made as to these labors and services since the account stated. The question is, whether under the facts proved there was an account stated between the parties.
    “ There is no dispute as to the fact that the plaintiff had worked for the defendant for some fifteen years. During that time, about the 3d of April, 1875, the parties had a settlement, and a note was given by the defendant to the plaintiff. It is proved that the defendant, through his clerk, Brewster, occasionally rendered statements to the plaintiff, taken from the defendant’s books. The defendant knew that his book-keeper was accustomed to render to workmen and jobbers statements of their accounts, if they called for them; and they did occasionally call for them. He knew that the plaintiff was in the habit of receiving such statements, from time to time, during all the twenty years he had worked for him. And the defendant regarded his book as containing a correct statement of his accounts with the men with whom he had dealings. The book-keeper testified that he rendered these two statements which were produced to the plaintiff, and that they were made from the books. These statements come down respectively to January, 1876, and to May 16, 1876. The second commences with the balance shown on the first. The book-keeper testifies that he was not authorized to agree on any balance.
    “ About December 20, 1876, the book-keeper, at plaintiff’s request, delivered to him a statement of account, purporting to be the account between plaintiff and defendant. Part of this was prepared under the defendant’s personal direction. The first item in this account is the balance shown by the account of May, 1876, above mentioned. The plaintiff at once objected to certain items in this account last rendered.
    “ Now we think that the referee was justified in holding, as a matter of fact, that under all the circumstances the rendering of the accounts and the acceptance of them made an account stated. The effect of this, as said, ‘is to establish prima facie the accuracy of the items without other proof, and the party seeking to impeach it is bound to show affirmatively the mistake or error alleged.’ (Lockwood v. Thorne, 18 N. Y., 285.)
    The defendant asked leave to amend his answer by setting up a breach of contract by the plaintiff in 1874 and 1875. The referee declined to grant the motion, giving the defendant, however, the opportunity to make such motion at the Special Term. We see no error in this. (Ford v. Fori, 35 How., 321.)”

      F. L. Westbrook, for the appellant. Van Ftten & Clearwater, for the respondent.
   Opinion

per Curiam.

Present — LeaRned, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


author: Learned, P. J.

text:
    ELISHA W. HYDORN, Respondent, v. MARIA J. CUSHMAN, Appellant.

      Agent — admissions of— when inadmissible against Ms principal.

    Appeal from a judgment-in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The defendant, in 1871 and 1872, had the title to certain lots of land, but had verbally contracted, in 1870, to sell them to one Clement for $1,300. He paid them about $27. Clement built a house on the lots, costing about $1,200, and the defendant advanced him for that purpose about that amount. In 1871 the city ordered the lots and the street in front to be filled, and the plaintiff did the work. Afterwards, in 1872, Clement abandoned the property, and the defendant took it back. The question litigated in this action is, whether or not the defendant employed the plaintiff to do this work, or whether he had been employed by Clement. B. Tallmadge Cushman, a son of the defendant, had acted as her agent in taking charge of her property, and was claimed by plaintiff to have been present at an interview when defendant agreed to have plaintiff do the work.
    The court, at General Term, after examining the evidence and holding that the verdict could be sustained, said: “ Another question of importance relates to the admission of evidence. The plaintiff called a witness, Fuller, who testified that B. Tallmadge Cushman employed him to ascertain the amount of filling put in these lots. There was evidence enough of Cushman’s agency to permit evidence of a contract or transaction made by him, which was material to the case. The witness was further allowed to state that Cushman told him 1 he thought it was going to be very burdensome on them, and they might as well let the lots go.’ This was objected to, and an exception taken. Its value as evidence for the plaintiff was only as an admission by Cushman, the agent of the defendant, that the lots were defendant’s, and -that she was the person who was to have the work done. Again, at another interview the witness testified thatB. Tallmadge Cushman said, 1 he supposed he had bargained with Mr. Hydorn to fill it.’ This was objected to, and an exception taken.' This, too, was material only as an admission by the agent of the defendant that the work was done under contract with her.
    What an agent does in the scope of his employment is a fact, material and admissible. “ What he says is not binding on his principal, unless it modifies the contract or characterizes the act which he is doing for the principal. It must be a part of or connected with some transaction then being done by him for the prin* cipal, so as to be a part of the res gestae. The admissions of B. Tallmadge Cushman did not in any way qualify the only act which he was then doing, which was the requesting Fuller to have an estimate made of the amount of the filling.

      “We think, therefore, that it was error to admit this evidence. On reading the whole case, any one who has had experience in the trial of causes, will probably be satisfied that this evidence did not affect the result. The charge of the court shows that the case was made to turn on the question, whether or not there was an actual contract made between the parties. This was what the .jury really passed upon. But it is assumed, as a rule of law, that the jury remember every part of the evidence as accurately as the stenographer takes it down; and, therefore, the improper admission of this evidence is ground for a new trial. Justice would be promoted, if new trials were granted only when the court could see that the evidence had in fact injured the appellant.” (Baird v. Gillett, 47 N. Y., 186.)
    Judgment reversed; new trial granted; costs to abide event.

      JEseh Gowen, for the appellant. Henry A. Merritt, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Bocees and Boardman, JJ.

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


author: BabNAUD, P. J.:

text:
    JOSEPH W. MARSHALL, Respondent, v. JULIUS LIPPMAN and MORRIS SHILBERG, Appellants, Impleaded with HERMAN STERNBERGH. SAME v. SAME.

      Assignment of lease — privity between the lessor and the assignees of his lessee— Proof by subscribing witness — when waived.

    May 25, 1874, plaintiff leased certain premises to one Sternbergh for five years. In June, 1874, Sternbergh assigned the lease, subject to the rents and conditions thereof, to L. & S., who entered into possession and paid the rent in the name of Sternbergh. Subsequently Sternbergh assigned to the plaintiff all his claim against L. & S. for all accruing rents from the date of such assigment.

      Held, that these facts established a privity of contract between the plaintiff and L. & S., and that an action would lie by the former against them to recover the rent reserved by the lease.
    The objection that an instrument was not proved by the subscribing witness, if not taken at the trial, is waived.
    Appeal from a judgment of the County Court of Kings county, affirming a judgment of a Justice's Court in favor of the plaintiff.
    The action was commenced before a justice of the peace, on the 8th day of November, 1877. The plaintiff, in his complaint, alleged that the defendants were indebted to him in the sum of $125, with interest, for two months’ rent of premises No. 96 Ewen street, from the 19th day of April to the 25th day of June, inclusive, in the year 1877, at $62.50 per month. The defendants Lippman and Shilberg answered by a general denial. The defendant Hiram Sternbergh appeared, but made no defense. It appears from the evidence that on the 25th day of May, 1874, the plaintiff leased the said premises, No. 96 Ewen street, to the defendant, Herman Stern-bergh, for five years, from May 25th, 1874, at the yearly rent of $750, to be paid in equal monthly payments in advance; that on the 10th day of June, 1874, the defendant, Herman Sternbergh, in consideration of $200 assigned said lease to the defendants and appellants, Julius Lippman and Morris Shilberg, subject to the rents, covenants, conditions and provisions therein mentioned. They entered upon and occupied said premises and paid rent thereunder, in the name of Sternbergh, to the plaintiff; that on the 10th day of March, 1876, said defendant, Herman Sternbergh, executed and delivered to the plaintiff an instrument in the nature, and having the force of an assignment to the plaintiff of all the claim of said Herman Sternbergh against Lippman and Shilberg, for all accruing rent from the date thereof.

      M. Holheimer, for the appellants.

      II. D. Birdsall, for the respondent.
   BabNAUD, P. J.:

The plaintiff demised to defendant Sternbergh certain premises in Ewen street, Brooklyn, for five years from 25th May, 1874. In June, 1874, Sternbergh assigned the lease to defendants Lipp-man and Shilberg, who entered into possession, and paid rent therefor in the name of Sternbergh for about three years. Sternbergh has assigned all his interest to the rents reserved by the lease to plaintiff. The plaintiff brings these actions for rent against Sternbergh, Lippman and Shilberg. The objection that the three defendants could not be joined in one action is too late. Unless such objection is taken by answer it is to be deemed waived. (Code of Civil Procedure, §§ 498, 499.) It is no answer to the objection, that the complaint was too indefinite. The defendants should have required it to be made more definite, and then demurred for misjoinder of parties defendant. The complaint did not refer to the premises for which rent was claimed, and this was sufficient notice of the facts upon which the plaintiff made the joint claim against all the defendants. Sternbergh made no defense, and does not appeal. The other two defendants are the assignees off the lease. They entered into possession as such. They paid rent to the landlord repeatedly, as they were bound to do, by taking the lease subject to the rents reserved. They paid no rent to Sternbergh. The proof made out privity of contract between plaintiff and Lippman and Shilberg. (McFarlan v. Watson, 3 N. Y., 286.)

The objection that the papers were proven on the trial by proving the signature of the parties to them, by other evidence than the evidence of the subscribing witness, cannot be held error, because there was no such objection taken on the trial. By not taking this specific objection the defendants waived it. The inference is that, if taken, the subscribing witness would have been called. The question whether Levy occupied the premises in fact was immaterial, and, therefore, it was not erroneous to reject an offer to prove it. The question was whether Lippman and Shil-berg were liable. If they were, Levy was their tenant.

Judgment should be affirmed, with costs.

Gilbert and DykmaN, JJ.; concurred.

Judgment affirmed, with costs.


author: Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE BOARD OF SUPERVISORS OF WESTCHESTER COUNTY, Respondent, v. STERLING G. HADLEY and others, State Assessors, Appellants.

      Board, of State Assessors — appellate powei'S of, in reviewing town valuations.

    Upon an appeal under chapter 49 of 1876, to the Board of State Assessors from the decision of the board of supervisors in the equalization of assessments, it is the duty of the State Assessors to determine whether or not injustice has been done to the town so appealing, by comparing its assessed valuation with that of all the other towns of said county: a decision of the State Assessors that injustice has been done to the appealing town, as compared with some of the other towns of the county, is unauthorized by the act, and of no effect.
    The State Assessors are to examine into and compare the valuations in the several different towns with each other, only to ascertain to the valuations of what towns the amount deducted from that of the appealing town should be added.
    The State Assessors can only direct what amount shall be deducted from the assessed valuation of the town so appealing, and to the valuation of what town it shall be added; they have no power to decide how much the tax levied and collected on the excessive valuation amounts to, and direct such amount to be collected from certain specified towns.

      Semble, that the appellate power of the State Assessors is limited to the equalization of the valuations of the real estate, and does not extend to the assessments for personal property.
    Appeal from a judgment of tbe Supreme Court, reversing the decision of the State Assessors, rendered bj them on an appeal, by the supervisor of Yonkers, from the equalization of assessments for the year 1876, by the board of supervisors of West-chester.
    The judgment appealed from was rendered at Special Term, on a hearing had upon a writ of certiorari, and the return of the State Assessors thereto.

      Ralph M Prime, for the appellants.

      Wm. Romer, for the respondent.
   Barnard, P. J.:

The question presented in this case is whether the Board of State Assessors had power to make the decision brought up for review by the certiorari. Their powers, upon appeals from the decisions of boards of supervisors in the equalization of assessments, are all conferred by and embraced in the third section of chapter 49 of Laws of 1876, as follows :

“ On every such hearing or trial the evidence shall in part relate to the assessment and full and true value of real and personal property, and the said State Assessors shall determine whether or not injustice has been done to the town, ward or city so appealing, in the equalization of real and personal property assessed therein, as compared with the other wards, towns or cities of said county, and shall determine whether any, and if any, what deductions ought to be made from the aggregate corrected valuation of said real and personal property, as made by the board of supervisors, and shall also determine to what town or towns, ward or wards, city or cities, in such county, said deductions, if any, shall be added, and shall certify their determination in writing to said board of supervisors, and forward the same by mail within ten days thereafter to the clerk of said board of supervisors, directed to him at his post-office address.” On receiving such certificate, it becomes the duty of the board of supervisors in the assessment and collection of the taxes of the next following years to credit such town or city with the amount of taxes levied from it, 011 such excess of valuation, and the same shall be levied and collected from the other towns and cities of the county. • (Laws of 1859, chap. 312, § 13.)

I11 the decision of the State Assessors in the present case, they find and certify that the board of supervisors “ did equalize the value of real estate of said city of Yonkers, in said county, at an excess of $973,717 above its proportional value, as compared with some of the towns of said county.” It was the duty of the State Assessors to compare the valuation of Yonkers with the valuation of all the other towns of the county, and to determine in that way whether injustice had been done to the appellant town. Instead of doing so, they have based their determination upon a comparison of the valuation of Yonkers with only eleven of the twenty-one other towns in the county.

It is impossible for this court to determine whether this error has or has not led to an unjust result. It is sufficient for the determination of this case, that the decision of the assessors is one which they had no jurisdiction to make. The duty of the State Assessors, in a case of this kind, is, first, to compare the assessed valuation of the town appealing with the assessed valuation of all the other towns in the county, and, by such comparison, determine whether injustice has been done to the town appealing, and what deduction, if any, should be made from the valuations of such town. Where, as appears to have been the case in the present instance, there is a great inequality in the assessment of the different towns, some being assessed at less than forty per cent of the true value, and others at varying rates, up to one hundred per cent, it is manifest that no just, or fair result can be attained by merely comparing the town appealing with a selected part only of the remaining towns. It was proper for the State Assessors to examine into and compare the valuations in the different towns with each other, but only for the purpose of ascertaining to what towns the amount deducted from the appealing town should be added. If, as between the other towns (apart from the town appealing), some were assessed too high and others too low, that would be a proper matter for the State Assessors to consider in determining to what towns the amount deducted from the appealing town should be added; but such a comparison is not proper in determining whether the appellant town has suffered injustice and the amount of the deduction, if any, to be made on the valuation of such town.

The decision of the State Assessors, in the present case, also contains another equally fatal defect. • Instead of determining, as directed by the statutes, to what towns the amount deducted from the valuation of Yonkers should be added, the State Assessors have undertaken to decide how much the tax levied and collected on the excessive valuation of Yonkers amounted to, and to direct that the amount of such tax be divided among and collected from certain towns as specified in the decision. They had no power to decide how much tax has been collected on the excessive valuations, or to give any direction for the crediting, of the amount to Yonkers, or the collection thereof from other towns; they were merely to decide how much, if anything, should be deducted from the valuation of Yonkers, and to what towns, and in what sums to each the amount of such deductions should be added. The further steps, to carry into effect the decision of the State Assessors, were for the board of supervisors to take, as directed by the act of 1859 above referred to.

The question is presented in this case as to whether, on appeals to the State Assessors in equalization cases, they are to take the assessment of personal estate, as made by the local assessors, or whether they have the same power over assessments for personal as for real estate. I am of the opinion that inasmuch as the board of supervisors are limited to the valuations of real estate in making equalizations, the State Assessors having only an appellate power are equally restricted, notwithstanding that the act of 1876 above cited directs them to inquire into the valuation of real and personal estate; but without further considering this point, I am of the opinion that, because the decision of the State Assessors was not such as the law authorized them to make, the judgment appealed from reversing their decision should be affirmed.

Gilbert, J., concurred; DticmaN, J., not sitting.

Order affirmed.


author: BARNARD, P. J.:

text:
    DAVID R. DE WOLF, Respondent, v. THE CAPITAL CITY INSURANCE COMPANY, Appellant.

      Oonst/ruction of a policy insuring one “as interest may appear”— The policy and claim thereunder may he assigned after a loss — Inswa/nee effected by mortgagee — right of company to suhrogation — Evidence.

    A policy was issued by the defendant, by which it insured, according’ to the conditions thereof, “Van Tuyl & Co., as interest may appear, to the amount of ■ $2,500 on two houses.” The houses stood on leased ground, the lease being then owned by Gilbert & Co., who had given to Van Tuyl & Co. a mortgage thereon for $2,500. An action on the policy was defended on the ground of an alleged breach of a condition, requiring that where one procured a policy, otherwise than as sole owner, that fact should be stated; and of a further condition requiring that when the building stood on leased ground it should be so stated.
      Held, that by the words “ as interest may appear,” the company insured Van Tuyl & Co. for any insurable interest which they might have in the insured property, and waived the conditions requiring a specific statement of such interest in the policy.
    That the fact that the mortgage covered sufficient property, after the fire, to pay the debt, furnished no defense to the company; it was the property and not the debt that was insured.
    That .Van Tuyl & Co. could, after the loss, assign the policy and their claim under it, without assigning the mortgage.
    It is not en'or to overrule a question, as to whether or not there are any indorse-ments on a paper in evidence and before the jury.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court at the Kings County Circuit.
    On the 21st day of April, 1875, the appellants issued a policy, by which they, “ in consideration of the sum of thirty-seven 50-100 dollars do insure, according to the conditions of this policy, against loss or damage by fire, Van Tuyl <& Oo., as interest may appear, to the amount of tioenty-five hundred dollars on briolc buildings Nos. 526 and 528 Water street, running through and being Nos. 273 and 275 Oherry street, city of Nexo York. Other insurance permitted, etc. Occupied for the manufactory of foundry facings.” All of the above that is in italics is the written portion of the policy. The buildings were destroyed by fire December 13, 1875. On June 7, 1876, Van Tuyl & Co. assigned their claim under said policy, by reason of said fire, to the respondent. The buildings stood on leased lands. At the time of the insurance and of the fire, Gilbert & Co., of the city of New York, were the owners of the lease and of the buildings insured, and Van Tuyl & Co. had a mortgage thereon for $2,500, made by said Gilbert & Co., which was unpaid, and Van Tuyl & Co. had an interest, as mortgagees in said buildings, to the amount of $2,500.

      William Barnes, for the appellant.

      F. E. Dana, for the respondent.
   BARNARD, P. J.:

This is an action upon a policy of insurance. The policy covered two houses made of brick, and situate in Cherry street, in the city of Now York. The houses were built upon lease land. Gilbert & Company owned the lease at the date of the policy, and a firm of Yan Tuyl & Company had a mortgage of $2,500 thereon. The policy required that when a person procured a policy otherwise than as sole owner, that fact should be expressed in the policy; also, that if the buildings to be insured stand on leased ground rthat fact should be expressed in the policy. In case of failure in these respects the policy was to be void. No such expression, in either case, appears in the policy in question. The policy does contain, however, a clause insuring Van Tuyl & Co., “as interest may appear.” It is difficult to give any meaning to these words unless they are held to waive the specific statement of interest, as required by the policy. The words state, in effect, that the company will insure the applicants, Yan Tuyl & Co., for any insurable interest which they may have in the insured property without stating such interest in the policy specifically. The words must have been inserted for a purpose, and there can be no purpose fairly to be inferred, except that the policy was issued to Yan Tuyl & Co., not as owners, but as having an insurable interest in some way other than as owners. It is no defense to the policy that Yan Tuyl & Co. assigned the same to plaintiff after the loss. If the defendant is entitled to subrogation of the mortgage, the assignment to plaintiff does not deprive them of that right, and it is well settled that a policy may be assigned after loss when there is no right of subrogation. There is no force in the objection taken by defendant that the mortgage covered sufficient property after the fire to pay the mortgage debt. The buildings were worth $16,000, They were burned down entirely. The plaintiff could look to the insurance company for the amount of the policy. The insurance was an insurance of the property destroyed, and not of the debt secured by the mortgage. (Kernochan v. N. Y. Bowery Fire Ins. Co., 17 N. Y., 428; Excelsior Fire Ins. Co. v. Royal Ins. Co., 55 id. 343.)

It was quite immaterial, as to the defendant, whether or not Gilbert & Co. or Yan Tuyl & Co. had used the premises as permitted by the lease. If the premises were not used in such manner as to violate the policy, it furnished no defense to the policy. The points for appellant mention other alleged errors. The objection to the jury was too late. The jury were sworn without objection, and the trial commenced. Soon after the commencement, objection was taken that the jury were not called originally for this case, but for another preceding case which did not come on, and they were sworn, without objection, for the trial of this ease. The objection is too late when no injustice is apparent. It is not erroneous to overrule a question calling for the fact, as to whether or not there were any indorsements upon a paper in evidence and before the jury. The jury could see that there was none as well as the witness.

The judgment should be affirmed, with costs.

Dykman, J., concurred; Gilbert, J., not sitting.

Judgment affirmed, with costs.


text:
    ANTONIO BRULO, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Failure ofprisonen• to produce evidence — whenjwy may consider it against him.

    "Where a party on trial for an offense has evidence at hand, by which he could prove a given fact material to his defense, and does not produce it, it is for the jury to say whether, in deciding upon their verdict, this omission should be considered against him.
    Writ of Error to the Court of Sessions of Kings county, to review the conviction and sentence of the plaintiff in error of larceny.

      Win. F. .Howe, for the plaintiff in error.

      Isaac 8. Gatlin (district attorney), for the people.
   Barnard, P. J.:

The plaintiff in error, an Italian, was indicted for larceny. The larceny was committed by inducing Joseph Manairo, also an Italian, to deliver to a stranger $390, upon the assurance that the stranger delivered to Manairo a bag of gold. Brulo and this stranger were joint-actors, or the plaintiff in error was not guilty. To establish joint guilt, it was proven on the trial that Brulo made the acquaintance of Manairo, who was a poor peanut seller; that he represented himself as doing a large business connected with ships. Shortly after he made such acquaintance, he invited Manairo to accompany him to buy flannel, as he (Brulo) didn’t know the English language. Brulo started to do this, and Brulo invited Manairo to drink, which he did; 'then the two, without doing their errand, started back and met another Italian, Avho expressed great grief at the death of his father, who had left him all his money, saying, “that he was going to get some prayers done.” The stranger and Brulo finally induced Manairo to give the stranger $390 and take a bag to keep for the stranger, which they both said contained gold. Both these parties requested to return immediately. He did so, and on his return found both gone, and ho did not again see Brulo until after his arrest. The bag Manairo to go and leave the bag of gold in Manairo’s house, and contained no gold, but things of weight wrapped up in newspapers. The evidence is abundant to show that Brulo was guilty. He pretended wealth; he brought in the stranger; he aided the stranger in getting the money upon falsehoods, and he and the stranger ran away together when they had succeeded in their common purpose. The court did not err in receiving the evidence of the acts and declarations of Brulo before the actual transfer of the money. Such acts and declarations were evidence for the jury to determine whether the prisoner was a joint-actor or not. Upon this question depended'the conviction or acquittal of the prisoner. It was not error to refuse to charge in the words of the request, “that failure of the prisoner to produce evidence is not to be considered by the jury.” The court charged, that when a man has evidence at hand, by which he could prove a given fact material to his defense, and does not use it, it was for the jury to say whether it should be considered against him or not. The prisoner had been sworn and testified to an alibi. The request was not addressed to the omission of a prisoner to testify, when the law expressly directs that a refusal to testify shall not create an impression against him. The prisoner testified that he did not come into this country until November, 1877. The larceny was committed in October, 1877. The trial was in March, 1878. It is apparent that there must have been a record kept by the emigration officials of his arrival. It was proper for a jury to consider the absence of such evidence. , [People v. Dyle, 21 N. Y.; 578; Gordon v. The People, 33 id., 501.)

The conviction should be affirmed.

Gilbekt, J., concurred.

Present — Barnard, P. J., Gilbert and Dyicman, JJ.

Judgment affirmed.


author: BakNard, P. J.:

text:
    WILLIAM H. NEARPASS, as Administrator, and SARAH BROWN, as Administratrix, etc., of THEODORE L. BROWN, Deceased, Appellants, v. WINTHROP W. GILMAN, Respondent.

      Code of Civil Procedure, § 829 — what witnesses emwpetentto testify under.

    This action was brought upon promissory notes made by defendant, and delivered to and owned by plaintiffs’ intestate at the time of his death. The notes were signed with defendant’s name by Alfred Gilman, his agent.

      Held, that Alfred Gilman was a competent witness for defendant, to prove payment of the notes to the intestate.
    One of the notes was made to the order of one Freedman, and had been by him indorsed to the intestate; but he had never been charged as indorser thereon.

      Held, that he was a competent witness for the defendant, to prove declarations of the deceased to the defendant, showing that the notes were paid.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The action was brought in the Supreme court to recover on two promissory notes and two checks. One note for $1,100, one note for $450, one check for $300, and one check for $65, made by one Alfred Gilman, the general agent of the defendant, and delivered for value to plaintiffs’ intestate by said agent, except the $1,100 note, which was indorsed by one Edward Freedman, and transferred to plaintiffs' intestate through such indorser. Freedman, however, had never been charged as indorser. The answer admitted all the allegations of the complaint in reference to the execution, indorsement and delivery of the notes and checks, and the general agency of Alfred Gilman for the defendant, but alleged payment of all the notes and checks except the note of $450, and made offer of judgment for the same with the interest then due, but set up a counter-claim of $360 for lumber sold plaintiffs’ intestate. The action was referred to R. C. Coleman, Esq., to hear and determine. It was admitted that Alfred Gilman was the general agent of the defendant, and gave all the notes and checks in suit as such agent, and used the proceeds thereof in' the business of the defendant. Upon the trial the defendant called Alfred Gilman as a witness, and was allowed, against plaintiffs’ objection and exception, to prove by him payment by him of all the notes and checks (except the $450 note) to plaintiffs’ intestate during his life-time. Defendant then called Edward Freedman (the person who indorsed the $1,100 note in suit) as a witness, and was allowed, against plaintiffs’ objection and exception, to prove by him declarations of the deceased to the defendant showing that said agent of the defendant, Alfred Gilman, had paid the $1,100 note to plaintiffs’ intestate.

      James W Lyon, for the appellants.

      Lewis JE. Carr, for the respondent.
   BakNard, P. J.:

Theodore F. Brown died holding certain notes made by defendant. These notes were in fact signed by Alfred Gilman in defendant’s name, and as defendant’s agent. Alfred Gilman was a proper witness upon the trial of the action brought to recover the notes, by the administrator of the deceased, against the maker of the notes. The agent was not a party, and he was not interested in such a manner as to exclude him on that account. The judgment, either way, would have no direct legal effect upon the agent, and the record of the judgment would not be evidence for or against the agent in any other action to which he might be a party.

One of the notes described in the complaint was made by defendant payable to the order of Edward Freedman. After it was indorsed by him it was transferred to plaintiffs intestate. Freedman was received as a witness upon the trial, to prove that this particular note had been paid to Theodore F. Brown in his life-time. The testimony received from Freedman to evidence such payment, was a declaration made by deceased in the presence of Freedman and defendant. Freedman had never been charged as indorser, and therefore he was not interested in the suit. (Stark-wheather v. Matthews, 2 Hill, 131.) He was not a party to the record. He was not called on behalf of the plaintiffs, who had succeeded to the title to the note from and through him. Section 829 of the Code of Civil Procedure only prevents a person from whom a party derives title from being a witness “in his own behalf or interest, or in behalf of the party succeeding to his title or interest.” Freedman does not seem to fall within this prohibition. The remaining question presented is one of fact. The evidence is sufficient to sustain the findings of the referee. It is very conflicting, but if no rule of law was violated upon the trial, the case is one where the decision of a careful referee should stand.

Judgment affirmed, with costs.

GilbeRT and DykmaN, JJ., concurred.

Judgment affirmed with costs.