author: Dykman, J.

text:
    Mary Smith, Resp't, v. The Town of Clarkstown, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Highways—Negligence.
    The original bed of a highway was raised to cross the tracks of a railroad, at which point there was a portion left unfilled and unguarded about ten feet wide and seven or eight feet deep. A sidewalk had been laid on piles, and the hole extended from the sidewalk towards the center of the road. As plaintiff was- riding with her husband the horse became frightened by a box car standing on the track, plunged into the hole and across the sidewalk into the valley beyond, causing injuries to plaintiff. Held, that the excavation in the highway and the absence of any guard around it, that condition continuing for a long time with actual knowledge by one of the commissioners of highways, was sufficient to •establish negligence of the commissioners and impose liability upon the town.
    Appeal from judgment in favor of plaintiff, entered upon verdict;.

      Irving Brown, for app’lt; Wm. McCauley, Jr., for resp’t.
   Dykman, J.

This is an action for the of under the following statute: “Every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town.” Section 16 of chapter 568 of the Laws of 1890.

The same section contains a prohibitory provision against the maintenance of an action for the recovery of such damages, unless a verified statement of the cause of action shall have been presented to the supervisor of the town within six months after the accrual of the cause of action, and against the commencement of the action until fifteen days after the service of such statement.

Ho question arises in this action under this latter portion of the section, because the complaint alleges and the answer admits the presentation of such claim to the supervisor in due form.

The plaintiff was riding with her husband, who was driving, in a one horse wagon along a public highway in the county of Rock-land leading from Rockland Lake to Crugers. The highway was crossed by two railroad tracks, and its grade was raised as it approached the first track and also between the two tracks to a level therewith, seven or eight feet above the original bed of the highway, except that along the north side of the highway there was a portion left unfilled. That hollow curved towards the center of the road about ten feet and left a steep declivity along the north side of the highway seven or eight feet in depth. This embankment was unprotected.

Sometime prior to this accident a sidewalk had been constructed along the north side of this highway. The sidewalk was. elevated on piles, and from the north side of the road to the sidewalk was this unfilled portion of the road. The north side of this depression sloped precipitously under the sidewalk, which was constructed on posts set in the ground.

As the plaintiff and her husband approached the crossing there was a box car standing upon the railroad track on the side of the highway, and it became necessary to turn a little to the left and nearer the car to avoid the depression in the road. As he did so the horse became suddenly frightened at the car and unmanageable. He first backed a few feet and then turned sharply to the right, plunged into the hole and across the sidewalk into the valley beyond.

That was the substance of the testimony of the plaintiff and her husband, and no other person witnessed the accident.

The defendant furnished testimony tending to show a different < state of affairs, but the jury rendered a verdict in favor of the plaintiff and must, therefore, have adopted the testimony furnished by her.

The only ground upon which the appellant undertakes to support this appeal is that the verdict is entirely against the evidence, but we cannot concur in that view.

The testimony of the plaintiff and her husband furnish ample support for the verdict.

The excavation in the highway, and the absence of any guard around it, and that condition continuing for a long time, together •with actual knowledge by one of the commissioners of the town, was sufficient to establish negligence on the part of the commissioners of highways, and impose liability upon the town.

A short quotation from the charge of the trial judge will show how distinctly the question of negligence was submitted to the jury. The extract is this: “ The case, therefore, turns upon a single question of fact. Did this horse when he shied and bolted, which is undisputed that he did, go into this hole in-the road, or did he go across this embankment out into the field beyond ? If he did the latter, the plaintiff is not entitled to a verdict. But if he did the former, then you would be justified in giving the plaintiff a verdict.”

The charge meets our approval and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Philip A. Daub, Resp't, v. The Yonkers, Railroad Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Negligence—Street Railroads.
    Plaintiff, while a passenger on one of defendant’s cars, was injured by the car running into a trench which defendant had made between and outside the rails to the depth of six inches. The driver, notwithstanding the warning of those at work, drove into the.trench at a trot, and the front wheels dropped into the trench. Held, sufficient to show negligence on the part of defendant.

      2. Same.
    When a driver trots in clear daylight into a trench against warning, a court is justified in telling a jury that, if proven, it is negligence.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action to recover damages for injuries received by plaintiff while a passenger upon a street car of defendant.

      John F. Brennan, for app’lt; Ellis & Harrigan, for resp’t.
   Barnard, P. J.

The facts from which the negligence of the defendant could be found were abundantly proven. The employees of the defendant had made an excavation between the rails and outside of them to a depth of six inches. The defendant’s driver, against the warning of those at work upon the trench, drove upon a trot into this trench, and the front wheels of the car, in which the plaintiff and other passengers, were seated, •dropped into the trench and injured the plaintiff by throwing him to the other side of the car from the side upon which he was sitting at the time of the accident. There was no question but that the plaintiff was free from negligence. He was a passenger, seated in the car, reading, and was injured without a moment's notice of danger. The digging of a trench so deep as to weaken the track so that it would not hold the car, and the disregard of warning by the defendant’s driver that he must stop his car, is such conclusive proof of the defendant’s negligence that an assessment of damages was all that was left for the jury. There was no error in the charge as to the horses running into the open trench. Running or walking was immaterial, so long as the driver threw his car in the excavation ; but when a driver trots in clear daylight into a trench against warning, a court is justified in telling a jury that, if proven, it is negligence.

The judgment and order denying new trial should be affirmed, with costs. -

Dykman and Pratt, JJ., concur.


text:
    Frederick W. Helmke, Resp't, v. Henry I. Stetler, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Master and servant—Vicious animals.
    Plaintiff, who was employed by defendant, was injured while driving, a horse which defendant had furnished for his use. The horse kicked off the dash board and then kicked so high as to strike plaintiff’s knee. There was evidence that defendant knew that the horse had kicked another person, and that he gave plaintiff no warning of its vicious propensities. Held, that such omission was sufficient to impose liability for the injury.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Abram A. Demarest, for app’lt; 0. P. Hoffman, for resp’t.
   Dykman, J.

This is an action for the recovery of damages resulting to the plaintiff from a kick of a horse.

The plaintiff was in the employ of the defendant as a foreman ' upon his farm, in Rockland county, and this horse was furnished to the plaintiff by the defendant to be used in the course of Ms business.

The testimony of the plaintiff was that while he was driving the animal along the road at a moderate rate of speed, she suddenly kicked off the dash board, and immediately gave another kick so high that her heels struck the knee of the plaintiff and inflicted upon him a very serious and dangerous injury.

There was no dispute about these facts.

The plaintiff and another witness gave testimony which tended to show that the defendant' knew that the same animal had kicked a man before while he owned her.

The jury was carefully and correctly instructed respecting the law which controls the case by the trial judge, and the plaintiff recovered a verdict of $1,000.

We must, therefore, assume that all the questions of fact were found in favor of the plaintiff, and that being the case, this appeal cannot prevail.

This is an appeal from the judgment and order denying the motion for a new trial upon the minutes of the court.

It is the duty of employers in all cases and under all circumstances to exercise care and prudence to protect those in their, ■employment from exposure to unreasonable danger.

In all cases where the danger is not apparent and visible, it is the duty of the employer to warn his servant of the risk he is about to assume.

That rule applied to this case required the defendant to inform the plaintiff of the vicious propensity of the horse which was furnished for his use, as the jury has found that such propensity was known to the defendant.

The defendant gave the plaintiff no such warning, as the jury must also have found under the charge of the trial judge.

That omission of duty was sufficient to impose liability upon the defendant for injury which resulted to the plaintiff from the kick of the horse.

If the defendant had informed the plaintiff of the vice of this animal, he could have exercised his discretion in respect to the acceptance of the service, and if he had accepted the position and consented to use her, he would have been forewarned of his danger, and conducted himself accordingly.

But without notice or warning he had the right to assume that the defendant had exercised proper care in the selection of the implements and agencies with which he was to prosecute his service, and being thus lulled into security he was unprepared for the sudden outbreak of violence which caused his injury.

These are familiar principles applicable to all cases of this character and require no reference to authority for their support.

The appeal cannot, therefore, prevail, and the judgment and order must be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Frederick W. Helmke, Resp't, v. Henry I. Stetler, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    New trial—Newly discovered evidence.
    In an action for injuries to plaintiff caused by the kick of a horse furnished by defendant, his employer, there was evidence that defendant knew that the horse had kicked another person. A motion for a new trial on the ground of newly discovered evidence was made on the affidavit of said person that the kick was a slight one, and was due to his carelessness in going between the horse in question and another one while they were fighting, and affidavits of other persons that they had not known said horse to kick any one. Held, insufficient to justify a new trial.
    Appeal from, order denying motion for a new trial on newly discovered evidence.

      Abram A. Demarest, for app’lt; C. P. Hoffman, for resp't.
   Dykman, J.

This is an from an order a motion for a new trial upon newly discovered evidence.

The action is for the recovery of damages resulting from the kick of a horse belonging to the defendant.

The plaintiff was in the employ of the defendant when he received the injury, and the action is based upon the vicious propensity of the animal.

The question of fact upon which the case would turn was well understood by the defendant and his counsel, for there were two trials of the action.

The affidavits upon which the motion is based are quite unsatisfactory, and it is by no means clear that the new testimony would produce a different result.

It was proved upon the trial that the defendant had knowledge that the horse had kicked Robert Byer; and now he makes an affidavit that the horse did kick him, but that it wás a slight kick, and he attributes it to his carelessness.

His testimony, therefore, would prove the fact that the horse did kick him while it was fighting with another horse, and thus show that the vicious disposition of the animal induced it to kick men and fight with other horses.

The other affidavits are in many respects suspicious and inconsistent with the established facts. Our conclusion is that the affidavits are insufficient to justify a new trial, and that the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


author: Pratt, J.

text:
    The People ex rel. The City of Yonkers, App'lt, v. The New York Central & Hudson River Railroad Co., Resp't.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Highways—Failure to work for six years.
    Where a highway is dedicated to the public use, chap. 311, Laws 1861, applies, and on a failure to open or work the same for six years it ceases to be a highway.

      2. Same—Condemnation of land of railroad.
    Where a railroad has acquired title to a piece of land for its purposes, such land cannot be taken for another public purpose without special legislative authority and compensation to the owner.
    3. Same-Crossing tracks.
    A railroad company cannot be required to take a street across its tracks where such tracks are in constant use.
    Appeal from judgment denying relator’s application for a peremptory writ of mandamus to compel defendant to take Locust street in said city across its tracks under the provisions of chap. 62, Laws 1853.
    Prior to the year 1870, Locust street was opened from Warburton avenue to the easterly line of the lands of the Hudson River Railroad Company, now the lands of the defendant. Prior to that date, and during the year 1847, the Hudson River Railroad Company had acquired title to its roadway, which was at the point opposite the westerly end of Locust street seventy-three (73) feet in width. In the year 1870, on or about December 13th, an attempt was made to extend Locust street from the easterly line of the defendant’s lands to a point one foot west of the westerly line of the defendant’s lands by an assumed dedication of the lands embraced within such? extension, executed by Georgiana Bashford to the village of Yonkers, to whom the lands west of defendant’s had been granted by letters patent, and by proceedings taken thereon by the board of trustees of the village of Yonkers under § 31 of title 9 of chapter 673 of the Laws of 1868. It is in evidence that soon thereafter a notice was served on the part of the village authorities upon the railroad company, requiring it to take the alleged extension of Locust street across its tracks. The railroad company did not comply with such notice, and nothing further appears to have been done until 1891, when another notice was served upon the defendant requiring it to take the said alleged extension of Locust street across its tracks. The defendant did not comply with the requirements of this notice, and this proceeding was instituted to compel the railroad company, by mandamus, to take the alleged street across its tracks.

      Ralph F. Prime, for app'lt; Frank Loomis (Ira A. Place, of counsel), for resp't.
   Pratt, J.

This is an appeal from a judgment denying the relator’s application for a writ of mandamus and of costs to the defendant against the relator.

This proceeding was brought by the relator to compel the defendant by writ of mandamus to take Locust street, in the city of Yonkers, across its tracks, under the provisions of Chap. 62 of the Laws of 1853.

We think it is plain from the evidence and the findings that there is no merit in this application.

It could result, if granted, in no public benefit, but would sub-serve only private interests ; indeed, the people of that vicinity would be subjected to danger in the operation of the railroad, and the defendant would be subjected to much inconvenience in the curtailing of its facilities for the operation of its railroad.

We also think that the point taken by the defendant that the road in question was not opened or worked within six years from the time of its being laid out was fatal to the application and brought it squarely within the amendment to the Revised Statutes passed in 1861. Chap. 311 of the Laws of that year.

It is not necessary to discuss and distinguish the cases, which do not seem to be in full accord upon the subject, for the rule seems to be that where a highway is dedicated to the public use the amendment before referred to applies.

The case shows that the defendant had acquired the title to the piece of land sought to be turned into a public highway. Under such circumstances it could not be taken for another public use without special legislative authority and compensation to the owner; neither can the defendant be required to take the street across its tracks under chap. 62, of the Laws of 1853, where the tracks are in constant use, as was proved in this case. D. & H. C. Co. v. Village of Whitehall, 90 N. Y., 24; Pros. P. & C. I. R. R. Co. v. Williamson, 91 id., 552.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    The New York, New Haven & Hartford Railroad Co., Resp't, v. Henry Welsh, Impl'd, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Condemnation proceedings—Necessity por taking land.
    Proof that by reason of increased business additional tracks are needed to enable the company to unload passengers off the main track to avoid delays, is sufficient to show the need of the company for land sought to be condemned.
    3. Same—Right op plaintiff to condemn lands.
    The plaintiff has a right to condemn lands in this state for the purposes of its business.
    3. Same—Former adjudication.
    The plaintiff is not precluded from maintaining the proceeding by the decision in a former action brought by the village to condemn the same land for a street, as the questions involved are different.
    Appeal from judgment of condemnation.
    In opposition to this proceeding the defendant claimed, first, that there was no necessity justifying the condemnation of the land and that the proceeding was not brought in good faith or with the intention of using the land for the railroad purposes alleged ; second, that plaintiff is precluded from maintaining the proceeding because the issues involved are res adjudícala by reason of a judgment rendered in January, 1888, dismissing an application made by the village of New Rochelle, at the request of this plaintiff as a property owner, in a proceeding to open a street upon the premises now sought to be condemned, and third, that plaintiff being a foreign corporation, and having exhausted its power to condemn lands given by a special act passed in 1846, under which it received permission to do business in this state, has no authority to exercise the right of eminent domain in this state.
    On the hearing two witnesses for plaintiff testified that the company needed additional facilities because of increase of business; that it was cramped for room and wanted additional entrance into the yard and a place to unload passengers off of the main tracks; that it now had to unload passengers on the main line and delays occur, and that room for additional tracks was needed.

      Martin J. Keogh, for app'lt; Henry W. Taft, for resp't
   Pratt, J.

The need of for the land to be condemned is fully proven. And there can be no doubt that the public interest is subserved by granting full facilities to plaintiff to transact its business.

The .case of Marks, 25 St. Rep., 502, must be regarded as establishing the right of the plaintiff to condemn lands in this state.

The former action, where the village sought to condemn the same land to be used as a public street, has no bearing upon this proceeding. The question then was, whether this land was needed for a public street. The present question is, whether this land is needed by the railroad company to provide adequate facilities for its traffic. The case was well decided and the judgment must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    In the Matter of Proving the Will of Robert H. Johnston, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Will—Probate—Revocation.
    Testator made his will, by which he gave a house, a money legacy and all his personal property to a niece, and the rest of liis property to others. He subsequently made another will, by which he gave all his property to • said niece. This was properly executed, except that he stated to one of the witnesses that it was an alteration, of his will. It contained no clause revoking any former will. Thereafter he destroyed the second will with the intention of revoking it and giving effect to the first one, which he still retained uncanceled, and so declared, but not in writing. Held, that there was no revocation of the first will, and that it should be admitted to probate as his last will and testament.
    Appeal from decree of the surrogate of Queens county denying probate to will'

      Josiah T. Marean and Benj. W. Downing, for app’lt; Horace H. Deming, for resp’t.
   Pratt, J.

The facts material to the decision of this case are not in dispute. Robert Johnston made a will dated November 10, 1884, which was duly published with all requisite formalities. He thereby devised the house in which he lived to his niece, Mary E. Theall, subject to certain charges, and bequeathed to her substantially all his personal property used in the house and about the grounds, together with a money legacy of $10,000. lie bequeathed $1,000 to his sister Mary, and $1,000 to eaclr of several other relatives, and gave, devised and bequeathed all the rest of his property to his brother William. Thereafter, and during 1885, the testator drew .up another paper which he signed. He requested two witnesses to sign the same as subscribing witnesses. This paper purported to be and was in the form appropriate to a new and independent will, by which he gave, devised and bequeathed all his property to his niece, Mary E. Theall, and appointed her sole executrix thereof. The witnesses signed the same as requested. All formalities for the "publication of this paper were observed except the testator’s declaration to both witnesses that it was his last will and testament. The findings in this particular are inconsistent. Those in the decision are to the effect that he declared this paper to be his last will and testament; but the findings on contestant’s request are that the testator did not declare tor one of the witnesses that the instrument was his last will and testament, but only declared that his purpose was to make a change in his will; and again, that he declared the instrument “ to be an alteration of his will.” The instrument contains no clause revoking any former will. Subsequently, the testator destroyed this second instrument, with the intention of revoking it, and with the intention of giving effect to the first instrument as his will, and that it “ should stand ” as his will; but that intention was never manifested by any writing. That paper was then in his possession uncancelled, and he then exhibited it to witnesses, and declared his intention that it should stand as his will, deposited it in his safe, and otherwise treated it as his only will. For aught that appears he died under this belief, and I think we must so hold on these findings and on this evidence.

No question of capacity arising, the learned surrogate has held that the second instrument was this man’s last and independent will, and that it revoked the first one because it altered the disposition of his estate. He has also held that its destruction, under the circumstances hereinafter stated, did not revive or reinstate the former will. The second paper was drawn by the testator himself and all that was done thereafter by him respecting both instruments was apparently without advice of counsel and without knowledge of the technical rules governing such matters.

The first- and perhaps vital question is this: Did this testator ever revoke the first will ? If yes, then to what extent? It has been answered that he did revoke it in toto simply because the provisions of the second instrument were partly inconsistent with ■ those of the first one. But that is not the turning point. Did he intend to revoke the first one in toto, when he published the second one? Did he publish that document with that purpose? It may be conceded that, if the case were to turn on the force of the paper alone, we should have a pretty close question to decide. But here stands the plain finding that he never declared it to be his last will at all to the witnesses, i e., to both of them. To one of them he declared it to be a mere alteration of his will, and not that it was his will or last will, or anything of that sort. It is, perhaps, fair upon these findings to say that he may have stated to the other witness that the instrument was his last will and testament; but on this finding, even if he did that, it was simply for the purpose of effecting an alteration in the first document. Here then we have a case upon these findings where a man simply intended to alter his will by giving all his property to one of his formerly chosen legatees, i. e.} to take nothing from her, but to take all from the others and give that thus taken to this one. But, through failure to understand the technical requirements of law, he fails to observe certain forms and thereby places himself in a false position ; and we are now asked to hold that this mistake in that regard shall frustrate his intention respecting his property.

For my part I cannot so hold. This is not the first time that we have declined to allow forms to frustrate substance. Under the circumstances I feel bound to hold that the second instrument cannot stand as an independent last will and testament, because it was not published as such. It was not declared to be a last will and testament to both subscribing witnesses and that is essential to give it force and effect as a last will and testament.

It, therefore, follows that whatever else may have been its effect, there was no revocation of the first will in its entirety either by implication or otherwise. What was then the force and effect of this second paper? It was designed and published as a mere alteration of the original will and nothing more. In that view it was at best a mere codicil to the original, and that involves the salvation, indeed the republication of the original in its entirety, but attests a coincident modification and revocation only of the inconsistent parts. But this case is peculiar in this: the will gave only a part of his property to Mary E. Theall. This second paper purported to give the whole of it to her. It is, therefore, especially plain that he never intended to take anything from her which was given by the original will. What he intended to do by the second paper was to confirm the whole of his original provision for her, and then increase that provision. It was in no sense a change in the original so far as she was concerned, but an addition to it, just as he might have done by a new legacy or devise. The publication of the second instrument was, therefore, not inconsistent with the first in this respect, and, hence, was not a revocation of the legacy to Mary E. Theall. On the contrary, it was a recognition and. reaffirmation of that original provision pro tanto so far as it had any force and effect at all upon Mary E. The-all. It did, by implication, revoke the provisions of the original will so far as it related to other legatees and devisees. It may be possible, though I shall hold otherwise, that they have lost the benefit of its provisions on the theory that the destruction of the second instrument, animo revocandi, was ineffectual to revive the clauses which were there apparently revoked by implication. But I do not think that even that result should follow, for the reason that the statute does not in terms apply to such a paper as this second instrument was ; and, besides that, I have serious doubt if the testator’s declaration to the witnesses to the second paper was sufficient to give it any force even as a codicil.

I shall, therefore, advise that the surrogate’s decree be reversed, and that the instrument dated November 10,1884, shall be admitted to probate in toto as testator’s last will and testament.

Order refusing probate reversed, and probate ordered, with costs to all parties out of the estate.

Barnard, P. J., and Dyicman, J., concur


text:
    Eugene Ham, Resp't, v. The Newburgh, Dutchess & Connecticut Railroad Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Railroad—Cattle guards.
    An open bridge upon which the railroad runs, commencing in a highway and constructed of string pieces and cross ties with open spaces.of six inches, is in no sense sucir a cattle guard as the statute requires a railroad to construct, and any person injured by the failure of the company to perform its duty in this respect can recover his damages.
    Appeal from judgment in favor of plaintiff, entered upon the decision of the court on a trial without a jury.
    This action was brought by the plaintiff to recover damages from the defendant for an injury received by his horse while upon the railroad track of defendant; the injury was such that it became necessary to kill the horse.
    The defendant's railroad crosses a public highway on the farm of the plaintiff. No cattle guard has ever been constructed at this crossing, although" the railroad has been in operation for many years.
    About the 9th of August, 1891, the plaintiff, to provide his horses with better pasture, decided to change them from a lot on the north to one on the south side of said highway, and before doing so he had the fences between the highway and lot put up in good condition. The fence was from four to six feet high. After the fences had been repaired, the horses were changed to the lot on the south side of the highway, and within a few days thereafter they escaped from this lot into the highway, and one of them entered from the highway on to the track and railroad bridge of the defendant. He probably stepped through a hole in the bridge, and then fell off, because his shoulder joint was wrenched or split out, and the bones broken.
    The defendant’s answeradmits that it has never constructed or maintained what it terms “a technical cattle guard,” but in lieu thereof it has constructed and maintained a railroad bridge, which it claims served for the purpose of a cattle guard.
    This bridge commenced in the highway and is constructed of string pieces, upon which are laid sawed cross ties, about seven ¿nches top face, and placed about six inches apart.

      W. S. Eno (Milton A. Fowler, of counsel), for app'lt; Hackett & Williams, for resp't.
   Pratt, J.

The structure which defendants call a cattle guard was in no sense such an one as their duty were more likely to be enticed upon the track than to be turned back. Had a proper guard been constructed, the accident would not have taken place. The duty which the company violated was one owing to the public. Any person injured can recover his damages.

Judgment affirmed, with costs.

Dvkman, J., concurs; Barnard, P. J., not sitting.


text:
    In the Matter of the Estate of Honora Callaghan, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed, May 8, 1893.)

    1. Decedent’s estates—Liability oe real property por debts.
    Surplus moneys arising fro » a sale on foreclosure of the real estate of a decedent, made within four years, and paid in to the surrogate,'are properly applicable to the payment of his debts and funeral expenses in case of a deficiency of personal estate.
    2. Same.
    While a creditor’s right to apply for a sale of real estate is limited to-three years, the real estate is not discharged from liability for debts so long as it remains in the hands of legatees or heirs at law.
    Appeal by creditors of the deceased from a decree of the surrogate of Kings county, directing the distribution of certain surplus moneys deposited with him to the heirs of the decedent.
    Honora Callaghan died intestate at the city of Brooklyn, November 18, 1888. Letters of administration were granted by the-surrogate of Kings county to her son, John B. Callaghan, December 3, 1888. She died seized of certain real estate in the city of Brooklyn. Mortgages thereon were foreclosed by two actions in the city court of Brooklyn, and after the sale thereof the surplus arising in said actions, viz., $1,525.98 in one action and $2,119.98, in the other was, by the order of said city court-, paid to and deposited with the surrogate of Kings county, November 24,1890.
    On or about March T7, 1891, Katie C. Callaghan, a daughter of decedent,' filed her petition with said surrogate setting forth these-facts, stating the names of the heirs of decedent, and that there were certain debts of decedent unpaid, including those of these appellants, and praying that such surplus moneys be distributed to those entitled thereto, and that a citation be issued to the parties designated in the petition.
    A citation was thereupon issued to and served upon the heirs and the creditors of the decedent, including these appellants, and was served on all the parties, and these appellants appeared by Theodore Burgmyer, their attorney. No answers or objections were filed to said petition, but on the return of said citation the surrogate required John B. Callaghan, the administrator, to file his accounts as such administrator, and on or about May 6, 1891,, he filed his account.
    To this account objections were filed by Moffett & Kramer for Stephen McCabe, and by John B. Lord for the infants, Joseph A., Dennis and Agnes Callaghan,
    An order of reference was then, on May 6, 1891, made by the surrogate to Charles Bradshaw, “ to examine the account rendered by John B. Callaghan, as administrator, * * * and to hear and determine all questions arising upon the settlement of such account which the surrogate has power to determine, to take proof of the facts stated in the petition, and of the claims against or debts of the estate of Honora Callaghan, deceased, and to make report thereon, which report shall be subject to confirmation or modification by the surrogate.”
    On December 31, 1891, the referee filed his report, in which he finds, among other things, that the total amount of assets of the estate of Honora Callaghan, deceased, which have come to the hands of John B. Callaghan, as administrator, is $662.04. That he expended properly $602.14, and that he has now in his hands, available for the payment of debts, $59.90. He also found that there came into the hands and control of said administrator “ a saloon business, with the stock and fixtures thereof, at the corner of Nostrand and Flushing avenues, which he took possession of and conducted and managed for at least six months after the death of decedent, appropriating to his own use profits thereby made, for which profits the said John B. Callaghan has never accounted,” which, as matter of law, he has in his hands available for the payment of debts in addition to the $59.90.
    He also finds the following to be just and valid claims against the estate :
    D. M. Koehler................................. $304 95
    T. C. Lyman & Co.............................. 116 00
    Amsdell Bros.................................. 1,103 00
    On January 18, 1892, and before the report of the referee was considered, George M. Amsdell and Theodore M. Amsdell, composing the firm of Amsdell Brothers, filed in the surrogate’s office of Kings county a petition setting forth this debt from the estate of Honora Callaghan, and the other debts or claims reported by the referee, and all other necessary facts, and prayed the disposition of this surplus to pay the debts of decedent, as prescribed by chapter 18, title 5 of Code of Civil Procedure, and that a citation may issue.
    The surrogate, in his findings and decree, sustains the referee, and directs the distribution of the surplus to the next of kin, ignoring the creditors, and decides that the administrator is liable to account for the profits of the saloon business.
    To the findings of the surrogate these appellants excepted, and from his decree appealed.

      Theo. Burgmyer, for app’lts; Moffett & Kramer, for Stephen McCabe, resp’t; John H. Steenwerth, for John B. Callaghan, resp’t; John Bradley Lord, special guardian; Frank L. Barnard (John T. Barnard, of counsel), for Meyer, assignee, etc.; Dana & Clarkson, for Katie C. Callaghan.
   Pratt, J.

I think the learned surrogate has proceeded on an erroneous theory in this case. He has held that, notwithstanding a deficiency of personal estate, the decedent’s debts and funeral expenses are not payable out of surplus moneys arising from the sale of his real estate made within four years, under foreelosuie, apparently on the theory that the real estate is discharged from the lien or trust for the payment of debts after the expiration of three years from the original grant of letters of administration. That is not the law as I understand it. A creditor’s right to apply to the surrogate’s court for the sale of real estate to pay debts, etc., is now limited to three years after issuance of original letters, § 2750, except in the case provided for in § 2751. But it by no means follows that the real estate is thereby discharged from those claims so long as it remains in the hands of legatees or heirs-at-law. That limitation, and the other provisions bearing on the point, were intended for the protection of bona fide purchasers of real estate made after the lapse of three years. Slocum v. English, 2 Hun, 78, affirmed 62 N. Y., 494.

The heir-at-law or legatee derives only an incidental benefit from this provision that, after that lapse of time, his purchaser may no longer fear unknown liens arising from decedent’s debts and hesitate to buy from that cause.

Various considerations seem to me sufficient to sustain this view. An owner of property holds it primarily in trust for his creditors. Candee v. Lord, 2 Comst., 269. The law respects this trust especially for the benefit of creditors. During the lifetime of the owner he is bound to respect it; and all his honest dealings therewith bind his creditors on the theory of privity. But even that rule is designed mainly for the protection of bona fide purchasers. Candee v. Lord. At the death of the owner the estate passes by mere succession to his legatees or heirs-at-law. They pay nothing therefor, and stand in the same relation to it which voluntary grantees occupy during his lifetime. A resulting trust or equitable lien arises in favor of creditors and for funeral and administration expenses.

The able opinion of Mr. Justice Cullen in Mead v. Jenkins, 29 Hun, 253, shows that the remedy by sale under the authority of the surrogate was formerly limited only by reasonable lapse of time. That opinion and that of the court of appeals, 95 N. Y., 34, 35, show that even a purchaser who bought with notice of a creditor’s claim would not be protected notwithstanding the statute of 1873, chap. 211. He is not, in that case, a purchaser in good faith. This clearly shows that the particular limitation, § 2750-1, does not discharge the lien or trust, as against the legatee or heir at law. Indeed nothing can accomplish a discharge of that lien or trust in his favor except payment or the statute- of limitations. He remains liable personally for debts to the extent of the property which he receives. Code, §§ 1837-1843. If he sells it to a bona fide purchaser after three years, the consideration .received is merely substituted in place of the land; and, upon familiar principles of equity jurisprudence,‘may be followed and, in such a case as this, may be taken to pay his obligation.

The provisions of the Code, §§ 2797-9, were designed to follow this general view in cases where a surplus arises from the sale of real estate “ within four years ” after the issuance of original letters. § 2798. Why, otherwise, the limit of “four years?” The limit for the commencement of the creditor’s proceeding under §§ 2750-1 is three years. Suppose no such proceeding and a sale on foreclosure daring the fourth year resulting in a surplus. It must, nevertheless, be paid into the surrogate’s court under § 2798. To what end is this requirement except that the decedent’s general creditors may be protected. Nor is this limited to cases whére proceedings have been or shall be duly commenced in the surrogate’s court under §§ 2750-1. It applies, just as in this instance, to cases where such an application has been rendered impossible because the real estate was swept away by a sale within the three years. And for aught that I can see it also applies to any case of a surplus arising from a sale within four years after the ietters.

Surely the court in which the foreclosure occurred would be competent to settle all rights of the parties to that action in the surplus; if it was the design of the statute to limit the distribution to them, why then pay it to the surrogate’s court except for the reason that the administrator was there to protect himself for expenses of administration, the funeral expenses and to represent general creditors, none of whom would be necessary parties to the foreclosure suit? And, again, it is certain that this money must be distributed under § 2799, and the surrogate’s court is bound to investigate and settle the “rights and priorities” of interested persons. What priorities are there to settle ip such a fund except among classes of creditors under §2793? We should scarcely think of using that phrase of the right of a creditor over a legatee or heir-at-law.

I think the decedent’s general creditors and funeral expenses ought to have been paid out of this fund, so far as necessary, and that the decree should have provided for such payment. There is no suggestion that any of these claims were barred by the statute of limitations, nor do I see how such'a suggestion could have been reasonably made.

We, therefore, reverse the decree so far as it relates to appellants, and direct that they shall have their share of the fund, and that their costs of this appeal shall be paid therefrom as a part of the expenses of distribution. The judgment will be without prejudice to any remedy which the other creditors may have, if any.

Barnard, P. J., and Dykman, J., concur.


author: Merwin, J.

text:
    Ann E. Barton, App'lt, v. Patrick Lynch et al., Resp'ts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1893.)

    1. Deed—Mortgage.
    In an action to have a deed declared a mortgage, it appeared that the consideration expressed in the deed, $37,000, was made up of the amount of mortgages on the premises, interest and taxes. Plaintiffs witnesses testified that in their judgment the property was then worth from $65,000 to $80,000, one witness having been city assessor at the time, and evidence was given tending to show that the rents were in excess of the expenses. Defendants’ witnesses placed the value of the property at $35 000 to $40,-000, and testified that the rents were not sufficient to pay the expenses, and that plaintiff could not find a purchaser at any sum above the incumbrances. At the time of the giving of the deed no debt was due defendants from plaintiff nor was she on the bonds given with the mortgages. The plaintiff’s and her witnesses’evidence of an oral agreement at the time of the giving of the deed was conflicting, and denied by defendants. Held, that the complaint was properly dismissed.
    2. Same—Evidence.
    In such case there was evidence that the management and control of the property in question while the plaintiff held the title was left by her entirely with her husband, as was all her other business. _ Held, that the admission in evidence of the husband’s declarations during the negotiations which led up to the deed, and of interviews by him with defendants after the giving of the deed regarding indorsements for the plaintiff and in fixing the rent of a portion of the property to be used in plaintiff’s business, was not material error.
    Appeal from a judgment entered in Onondaga county on the ■6th January, 1892, upon the decision of the, Onondaga special term, dismissing the complaint, with costs.

      W. G. Tracy, for app’lt; Hiscock, Doheny & Hiscock, for resp’ts.
   Merwin, J.

On or about the 9th May, 1879, the plaintiff, then being the owner of certain real estate in the city of Syracuse, executed and delivered to the defendants a conveyance thereof, which was dated May 6,1879, acknowledged May 9,1879, and recorded May 10, 1879. The husband of the plaintiff, Joseph Barton, joined in this deed as one of the parties of the first part. The consideration therein stated was $87,000, and it purported also to convey all leases and rents from May 1,1879. The parties of the first part covenanted that the premises were free and clear of all incumbrances except two mortgages, one for $25,000 and interest from July 1, 1878, to the Onondaga County Savings Bank, and the other for $10,000 and interest to the Syracuse Savings Bank The deed also contained the usual covenant of warranty. The present action was commenced May 4, 1889, and its object is to have the deed above described declared to be a mortgage, and to obtain redemption and an accounting of rents and profits.

The premises in question were situated on Genesee street, with .a frontage of about one hundred and thirty-two feet, and in or before 1868 Joseph Barton became the owner thereof at the cost of about $29,000. In 1868 or 1869, at an expense of about $80,000, he built thereon a block having six stores upon the first floor, and in the upper part there being rooms and offices and a large opera house. In order to obtain in part the means for the erection of this block, Barton and his wife executed the two mortgages above referred to, one being dated February 12, 1868, and the other July 28, 1868, and together they covered the whole block, each being upon a distinct portion. Bonds executed by Joseph Barton accompanied the mortgages. In 1878, and for some years before, insurance was carried on the building of $90,-1)00, and then, and for some time previous, the premises liad been assessed at $53,000 On the 7th June, 1874, Joseph Barton executed and delivered to his wife, the plaintiff, his bond for the payment of the sum of $26,000 in one year, and as security therefor a mortgage upon the said premises for the same amount

This sum was the amount agreed upon as due the wife upon a settlement between her and her husband of certain business transactions. This mortgage was afterwards foreclosed by Mrs. Barton by action. Upon the sale under the judgment Mrs. Barton became the purchaser at the price of $1,000, and a deed was given to her on July 31, 1875. The plaintiffs title upon this sale was subject to the lien of the two savings banks mortgages. For the deficiency upon plaintiff’s debt, a judgment was entered against Joseph Barton on 19th October, 1875, for $27,197.33. Immediately upon the foreclosure sale the plaintiff took possession, and so continued until the deed to defendants, the husband meanwhile managing and controlling the property for her as her agent.

About the time of the foreclosure action Joseph Barton failed in business. On the 19th November, 1875, a petition in bankruptcy was fiied against him upon which he was adjudged a bankrupt, and thereafter, on the 5th day of March, 1878,' he received in that proceeding a discharge from .his debts. Meanwhile, the business of manufacturing and selling cigars and tobacco, which before his failure he had carried on in one of the stores of the block, was carried on at the same place by the firm of J Barton, Jr., & Co., which was composed of the plaintiff and her oldest son, Joseph Barton, Jr. When Joseph Barton was discharged in bankruptcy in March, 1878, the plaintiff withdrew from the firm, and her husband took her place, the name of the firm then becoming J. Barton & Son, and the business was continued at the same place. The business of J. Barton & Son was not successful, and in March, 1879, the firm was in failing circumstances, with debts amounting to about $25,000, and with assets of the value of from $12,000 to $15,000, about one-half of which was the stock and property in the store, and the other half was in accounts. The principal creditor was one Crawford, whose debt was about $16,000, and who was pressing for payment. At this time, and for some years prior thereto, the defendant Lynch was and had been a banker in the city of Syracuse, and connected with various banking institutions, at which Joseph Barton and the firms succeeding him had been accustomed to do business and procure discounts upon the credit to a considerable extent of Lynch. The latter had also assisted Barton on previous occasions in procuring settlements with his creditors, for which assistance he had been paid by Barton. In the spring of 1879, Lynch held or was liable upon a note of J. Barton & Son for $5,000, which was the only indebtedness to him 6f Joseph Barton, or of any member of his family, and it had existed for some time, and was amply secured by a mortgage of $8,000, dated March 4, 1874, executed by the plaintiff and her husband to Lynch upon a house and lot in Syracuse, the title of which was in the. plain tiff, and the value of which exceeded $20,000. The debt of Crawford, above referred to, was in two notes, one for- about $15,000 and the other about $1,400.

On the 20th April, 1879, the defendant, Lynch, at the request óf Joseph Barton, and after negotiations between Barton and Crawford, and between Lynch and Crawford, which were commenced. about the 1st of April, purchased the larger note for the sum of about $1,500. Upon this note Lynch, on the 29th April, 1879, commenced a suit in the supreme court against J. Barton & Son, and on the 26th May, 1879, recovered a judgment thereon for $15,370.21 damages and costs. Execution was at once issued thereon, and levy made upon the stock of J. Barton & Son, and the same was sold at public sale in the first week of June, and bid in by Mrs. Barton for about the sum of $2,100. She paid nothing upon the bid except the fees of the sheriff. She immediately took possession of the property, and continued the business in her own name. Upon the judgment, proceedings supplementary to execution were instituted, and a receiver appointed, to whom the accounts of the firm were assigned. Joseph Barton was made agent of the receiver for the collection of the accounts, and he, with his son, Frank E. Barton, proceeded to the collection of the same. From the proceeds of such collections Lynch was paid the amount he had paid for the claim and interest, and also the sum of $300 charged by his attorney for the prosecution of the claim. This was all that Lynch received from the proceeds of the judgment, and on the 8th November, 1886, he assigned the judgment to William E. Barton, a son of plaintiff.

The facts thus far stated are substantially as found at special term, and are not disputed. It is also found that the purchase by Lynch from Crawford, and the subsequent proceedings thereon, were in pursuance of an arrangement between Joseph Barton and Lynch, by which Barton, in order to obtain a transfer of the stock and property of J. Barton & Son to the plaintiff, and a continuance of the business in her name, requested Lynch to purchase the Crawford claim as cheaply as possible, put it into judgment, sell upon execution the leviable property, of which plaintiff should be the purchaser, and collect the accounts, and that when reimbursed for his disbursements the balance of the judgment and its avails should belong to Joseph Barton or some member of his family, and that Lynch assented to this proposition. There is abundant evidence to sustain this finding. The existence of such an arrangement in substance is hardly disputed by the plaintiff, but the claim on her part is, there is more of it, and that the arrangement in fact made included not only the Crawford claim, but the subject of the block, its mortgages and repairs, and the deed in controversy.

From the time the plaintiff acquired title to the block in 1875 to the spring of 1879 the rents of the premises were not collected by the plaintiff, but by her husband or her son, Joseph Barton, Jr., and were turned into and used in the business carried on by them, and from the business the plaintiff and her family received their support. In the spring of 1879 the interest upon the savings banks mortgages that fell due January 1, 1879, and the taxes for the year 1878 were unpaid, and the opera house needed considerable and extensive alterations. The plaintiff claims that it was then verbally agreed between Lynch and the plaintiff and her husband that Lynch should advance the sums necessary to buy up and compromise the debts of Joseph Barton & Son, advance money to pay interest on the mortgages, indorse for the plaintiff when she succeeded to the business of Joseph Barton & Son, as then contemplated, advance what moneys were needed to put the opera house in better shape and make it pay better, and as security for such advances take a? deed of the block, and that, when his advances were repaid out of the block or by plaintiff with compensation for his services, he would reconvey the block to the plaintiff, and that in pursuance of this arrangement the Crawford claim was bought, and the deed to defendants given.

The court declined to find this arrangement. On the contrary, it was found that in the latter part of 1878 and to May, 1879, the receipts from the premises for rents and for the use of the opera house, that occupied the upper stories of the block, were not equal to the expenses of the propertj'- for interest on the mortgages, taxes, insurance, water rents and repairs; that rents and the value of real estate in the city were considerably depressed and property difficult of sale at its value; that by reason of these things and the need of alterations to the opera house and the arrears in interest and taxes, Joseph Barton, the husband of the plaintiff, and her managing agent for this property, was of the opinion that it was for the interest of plaintiff to sell the premises at a price not less than the incumbrances, which then, with interest and taxes, amounted to $37,000; that in the spring of 1879 Joseph Barton personally and by others offered the premises for sale at sums ranging from $40,000 to the amount of the incumbrances, or $37,000, but was unable to find a purchaser, and at last offered the same to the defendant Lynch at the last named sum, which was accepted by Lynch upon the defendant Moore agreeing to unite with him in the purchase; that, in pursuance of this offer and acceptance the deed was given, the defendants verbally agreeing to pay the incumbrances and taxes and save the plaintiff and her husband harmless therefrom, which agreement was performed by defendants;'that this deed was executed and delivered with intent to convey thereby to defendants an absolute estate in fee.

Immediately upon the execution and delivery of the deed the defendants took possession of the premises and have ever since been in possession, claiming to hold as absolute owners, as the court finds. The plaintiff in continuing the business after the execution sale remained at the same store in the block as previously occupied by J'. Barton & Son, but at a fixed monthly rent agreed upon between her and the defendants and paid by her to the defendants. This continued for about a year when, by direction of defendants, she left. She, however, continued the business elsewhere until 1886, when she failed and made a general assignment. A reassignment was made to her under an order of court in March, 1888.

The defendants about the first of July, 1879, wishing, as the court finds, to improve their title to the premises and cut off any claims that the creditors ofJoseph Barton might have, requested the holders of the savings banks mortgages to foreclose the same as they were past due. This was accordingly done by actions in the supreme court, Joseph Barton and his wife being the parties defendant with others. Judgments of foreclosure were obtained in each case and a public sale made by the sheriff on November 1, 1879, and the property in each case was struck off to the defendants at the amount due upon the mortgage and the costs, that being the highest sum bidden and they being the highest bidders, Deeds were given by the sheriff to the defendants in pursuance of the sales. Prior to May 1, 1880, the defendants spent in repairs and improvements upon the opera house and block about $30,-000, and about $45,000 prior to 1888. In September, 1888, the block was partially destroyed by fire and the defendants received for insurance the sum of $47,000, a portion of which was for loss on personal property. The whole amount of insurance on the building was about $35,000. Soon after this the plaintiff caused a demand to be made upon defendants for an accounting and a reconveyance, and again in April, 1889, shortly before the commencement of this suit.

The main claim of the appellant is that upon the evidence she was entitled to the finding that the deed was given as security. The agreement, if any to that effect, was verbal and is sought to be shown from the negotiations between the plaintiff and her husband with Lynch, or from declarations of Lynch, and also divers surrounding circumstances are shown as bearing upon the probability of such an agreement. So far as the evidence rests in proof of negotiations or declarations, it is conflicting. Upon the one side the plaintiff and her husband give their recollections of what was said at divers interviews between them and Lynch, and they are corroborated more or less by the testimony of their three sons Joseph Barton, Jr., William B. Barton and Frank B. Barton. The defendant Lynch denies all the material portions of their testimony. The manifest interest of the plaintiff and her husband and sons was an element on the question of credibility. Besides, the reputation of Joseph Barton was specially attacked, and it appeared that the sons William E. and Frank B. were the owners of judgments against their mother to the amount of about $30,000, and since the commencement of this action a receiver of the property of the mother had been appointed for their benefit It is claimed that the plaintiff’s theory is corroborated by a witness, Heyne, who testifies that in 1881 Lynch said to Mrs. Barton that he didn’t see any reason why she shouldn’t have the block back in a few years. Circumstances, however, were shown as to this witness and his evidence that would make it evidently proper for the trial court, who saw the witness and heard his evidence, to fix the weight to be given to his evidence, and the like may be said as to the evidence of the witness Hamilton. So that as to all these witnesses the trial court, having seen them and heard them testify, had better opportunity than we have to determine the weight to be given to their evidence. In view of this, it would not be appropriate for us to interfere with the conclusion of that court, unless there exists some decisive circumstance or circumstances in favor of plaintiff’s theory outside of the verbal negotiations or declarations. The plaintiff claims that such circumstance . does exist in the valué at the time of the block. The consideration of $37,000 stated in the deed was made up of the amount of the mortgages and interest and taxes, so that plaintiff received nothing beyond the incumbrances. Several witnesses are called by her who state that in their judgment the block was then worth from $65,000 to $80,000. One of these witnesses was city assessor at the time, and had occasion to then consider the value of the property. In 1878 it was assessed at $53,000.

The other witnesses do not seem to have had their attention particularly called to the value in 1878 or 1879. Evidence was also given tending to show that the rents for 1878 were considerably in excess of the expenses, including interest and taxes. Upon the other hand, several witnesses are called by the defendants, who place the market value in the spring of 1879 at from $35,000 to $40,000. Five of these witnesses had occasion to examine the property in the spring of 1879 with a view of forming a judgment of its value, and they profess to speak upon the information then obtained. The defendants also gave evidence tending to show that the rents for 1878 and 1879 were not sufficient to pay the expenses, including interest and taxes, so that there was no margin of profit to the owner. It was shown that the block in 1879 was assessed at $35,000, and in 1880, after the defendants had expended $30,000 in improvements upon it, it was assessed at $50,000. It may be assumed that in 1868, when the savings banks mortgages were given, the block Was deemed to be worth double the amount of those mortgages. There is, however, some evidence that in the spring of 1879 not only was payment of the interest pressed, but payment of a portion of the principal was asked for.

The evidence justifies the finding that Barton in the spring of 1879 made efforts to sell the block, but was unable to find a purchaser at any sum above the incumbrances. The evidence would justify a finding that the market value did not, in the then state of the market, exceed the amount paid by the defendants. Barton had been managing the property for many years in connection with his business, but did not seem to make a success of it. He failed in 1875, and was again about to fail Concededly the block needed repairs or improvements. One of the plaintiff’s witnesses testifies that in one of the interviews with Lynch, Barton told Lynch that he had tried to raise money by mortgage but did not succeed. If repairs were needed and money could not be raised by mortgage, it reflects somewhat not only on the value of the property, but of the rental. We think the evidence justifies the finding made by the court below that in the latter part of the year 1878 and to May, 1879, the receipts for rents and Use of the property were not equal to the expenses for interest on mortgages, taxes, insurance, water rents and repairs.

Inadequacy of price in cases of this kind is always a circumstance to be considered, 1 Story Eq., §§ 245, 246; 1 Jones on Mortgages, § 329; Holmes v. Grant, 8 Paige, 243, and the weight to be given to it depends upon the degree of inadequacy. If in the present ease the market value of the property at the time of the deed did not substantially exceed the consideration, the element of inadequacy ceases to be of any practical importance.

There are some other circumstances that may be briefly adverted to. It will be observed that the transfer by Crawford to Lynch was on 20th April, 1879; while the deed was not given till May 9, 1879. No other debt of the firm was purchased by Lynch or compromised by him. The deed was drawn by Lynch, and sent to Barton on May 6, 1879. On May 8, 1879, Lynch wrote to Mr. Barton to return the deed, and that he didn’t want it executed. Instead of doing this, Barton and his wife executed, the deed, and sent it to Lynch. Barton in his evidence testifies: that before the date of che deed propositions as to the block had been exchanged between him or his wife and Lynch, but that nothing definite had been concluded upon. If that be so, it may be argued with some force that the giving of the deed was entirely separate from any agreement for the compromise of debts.

A part of the agreement between plaintiff and Lynch, as claimed by plaintiff, was that Lynch should indorse for her, upon her continuing the business. Still very soon after she commences business, and on the 13th June, 1879, she gives to Lynch a mortgage of $10,000 upon her house and lot, upon which the $8,000 mortgage above referred to had been given, and also upon other real estate owned by her, and this was as collateral security to Lynch for all money he might advance to her, and for any notes he had, or might have, against her, or might indorse for her benefit. This mortgage was recorded July 3,1879. Lynch thereupon indorsed for her benefit in her business, or helped her get credit to more or less extent until August, 1885, when he declined to indorse farther, and demanded payment of the $5,000 note given by J. Barton & Son, and for which he held the $8,000 mortgage. Upon this note being paid, Lynch, upon the 18th August, 1885, cancelled both mortgages. It is claimed that the giving of the $10,000 mortgage was inconsistent with the claim of plaintiff that the deed was given partially for the same purpose. It apparently has some force in that direction.

At the time of the deed there was no debt in existence from plaintiff to Lynch, nor was she liable upon the bonds given with the savings banks mortgages. She did not become liable to pay to Lynch any of the moneys which he might expend upon the buildings. If there was a loss, she was not liable. But, as she claims, she had an option, for an indefinite period in the future, to call for an accounting and redemption. The defendants immediately took full possession, plaintiff becoming for a time a tenant, and, after she left, friendly relations seem to'have continued between the parties until 1885. In the meantime, the defendants expended largely for improvements, far more, it is claimed, than a mortgagee in possession would be likely to do. and after the fire in 1888 they rebuilt at an expense of $100,000 and up: wards.

The circumstance that the defendants, after receiving the deed, procured the foreclosure of the mortgages is not necessarily inconsistent with their claim of absolute ownership. The atmosphere' about the mortgage under which plaintiff claimed title was not entirely clear. The plaintiff, when she took it, knew, as she herself testifies, that her husband had got to fail. - The manner in . which the block hacj been managed might give opportunity for a question as to who was the real owner. The withdrawal' of the wife from the firm was only about a year previous. It was certainly discreet to perfect title before making costly permanent improvements.

The plaintiff claims that as, upon the giving of -the deed, she obtained nothing "over and above the incumbrances and taxes, she would not be likely to make an absolute conveyance. Upon the Other hand, it is said that the management by the plaintiff and her family was not a success, none of them had means or ability to properly carry it on, and, therefore, the only option plaintiff had was either to allow it to be sold on foreclosure of the mortgages or make the conveyance to the defendants, and that the fact that, under the circumstances then existing, she and her husband chose to convey to defendants is not inconsistent with the absolute conveyance. The defendants were business men, and it is urged that they would not be likely to take a defeasible conveyance, running all the risk of large expenditures, and liable to be prevented from enjoying the profits.

The evidence required to snow that a deed absolute in form was intended to be a mortgage must be clear, unequivocal and convincing. Cadman v. Peter, 118 U. S., 73; Erwin v. Curtis, 43 Hun, 292; 6 St. Rep., 116; 112 N. Y., 660; 20 St. Rep., 978. In Ensign v. Ensign, 120 N. Y., 655; 31 St. Rep., 657, it is said that the existence of an oral defeasance must be established beyond a reasonable doubt. In Lance's Appeal, 112 Penn. St., 467, it is said, that “ to convert a deed, absolute on its face, into a mortgage by parol testimony, such testimony must be clear and specific, of a character such as will leave in the mind of a chancellor no hesitation or doubt, and failing this the effort to impeach the legal character of the deed must be regarded as abortive.” The testimony must be entirely plain and convincing beyond reasonable controversy. Hunt, J., in Howland v. Blake, 97 U. S., 626. The fact that the grantor may have understood the transaction to be a mortgage is not alone sufficient to prove it to be so, in the absence of fraud or mistake. 1 Jones on Mortgages, § 335.

In view of the strict rule of evidence applicable to such cases, and of the fact that in some features of the case the credibility of ■* witnesses was at issue, which was a matter that could be dealt with by the trial court better than by this court, we fail to find any sufficient reason for interfering with the finding that the deed in question was executed and delivered with intent to convey to the defendants an absolute estate in fee. There are no circumstances in the case so decisive in favor of plaintiff’s theory as to require us to overturn the decision of the trial, court.

If the deed, at its execution, was not intended as a mortgage, then, within the authority of Sturtevant v. Sturtevant, 20 N. Y., 39, it would not be competent for plaintiff to show by parol that the deed was in fact in trust for her benefit

Our attention is called to some exceptions to rulings upon evidence. Error is claimed in the admission of certain declarations of Joseph Barton. There was evidence that the management and control of the block, while the plaintiff held the title, was left by her entirely with her husband, and that he had full charge and management of her business then and afterward, until she failed, and that he was, in fact, her general agent. Evidence was received of his declarations as to the block in the negotiations that led up to the deed, and of the interviews between him and Lynch with reference to indorsements for plaintiff in the business after the deed, and in fixing the rent of the store to be used in plaintiff's business, and as to leasing some portion of the block before the deed. The declarations of Barton, in transactions within the scope of his authority, would bind the plaintiff. Story on Agency, § 134. Within this principle, no material error is apparent.

There are no other questions that call for special consideration. It follows that the judgment should be affirmed.

Judgmentaffirmed, with costs.

ardin, P. J., and Martin, J., concur.


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

text:
    Eliza Mahaney, Resp't, v. The Mutual Reserve Fund Life Association, App'lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1893.)

    Insurance (life)—Warranty—Age of insured.
    On the trial of an action to recover on a life insurance policy, it appeared that the insured, in her application for insurance, had stated that she was horn in Ireland in 1834, and that her maiden name was D. Defendant introduced in evidence affidavits made by the insured upon applications for a pension, wherein she stated ages inconsistent with the date of birth given the defendant. Also a transcript from the register of an Irish parish showing that the insured was married in 1841, and transcripts of entries of births of her children between 1844 and 1848. To rebut such evidence, plaintiff introduced a large number of witnesses who had known the insured, and who placed her age at death, in 1890, at fifty-six, one witness testifying that he had known her in 1850, she being known by the name of G., and unmarried. It appeared that one of insured’s daughters was married in 1863, and was then seventeen or eighteen years old. The court charged that if tlie age of the insured was more than stated in her application, plaintiff could not recover. Held, that a verdict for plaintiff was against the weight of evidence.
    Appeal from a judgment entered in Oswego county, on the 5th February, 1892, upon a verdict at the Oswego circuit, January, 1892, in favor of the plaintiff, for $1,090; also from an order denying a motion on the minutes for a new trial.
    The action is upon a certificate of membership, issued by the defendant to Catharine Mahaney, the mother of the plaintiff, on the 9th June, 1885, in and by which it was declared that within ninety days after receipt of satisfactory evidence of the death of the member, there should be payable to the plaintiff, if she was then alive, otherwise to the legal representatives of the member, the sum of $1,000 from the death fund of the association, or from any moneys that should be realized to that fund from the next assessment to be made as therein stated. Catharine Mahaney died on the 8th April, 1890, and the proofs of death were furnished to the defendant on the 23d April, 1890.
    The defenses relied on are, first, that there has been a breach of a warranty in the application for membership that the applicant was born November 10, 1834; and, second, that there was fraud in making the statement as to the age of the applicant.

      W. H Kenyon, for app’lt; Whitney & Bulger and J. B. Higgins, for resp’t.
   Merwin, J.

In the application of Catherine Mahaney for membership in the defendant, it was stated that she was born on the 10th day of November, 1834, in the county of Waterford, Ireland, and that her age at next birth day, being November 10, a 1885, was fifty-one years. The court charged the jury that if the age of the applicant was more than as stated, the plaintiff could not recover. The jury, therefore, in finding for plaintiff, in effect found that the agé was correctly stated. The main point presented by the appellant upon this appeal is that such finding is against the weight of evidence.

The applicant and her husband, Cain O. Mahaney, came to this country from England prior to 1860. It was shown, by the testi-. mony of Ellen Delong, a sister of plaintiff, and not denied, that the maiden name of her mother was Catharine. Dudley, that she had altogether seven children; three of whom died before she came to this country, and' that the other four who came over with their parents and are still living were the witness, the plaintiff, whom she called Lizzie, Cornelius and Mary. In 1862 Cain O. Mahaney enlisted at Oswego as a soldier in the service of the United States, and it appears that he died in May, 1878. The defendant puts in evidence an affidavit made by Mrs. Mahaney on the 14th August, 1878, for the purpose of obtaining a pension. This was made at Oswego before a special agent of the pension office and was produced by him from the records of the pension bureau, and he testifies that it was written by him at the dictation of Mrs. Mahaney and that he then read it over to her and she signed and swore to' it. There is nothing in the case to discredit his testimony. In this affidavit Mrs. Mahaney states among other things that “ her age is fifty-five or sixty years,” that she was married to Cain “in Chelsea, county of Middlesex,- England, about in 1842,” and came with her husband to this country in 1857; that her husband at his death was about sixty-six years old.

The defendant also puts in evidence another application made by Mrs. Mahaney for a pension on 26th September, 1889.' This was filed in the pension office October 3, 1889, and was signed at Oswego in the presence of two witnesses and certified to by the county cleric of Oswego county. The deputy clerk who certified to the paper and one of the subscribing witnesses were called as witnesses at the trial, and both testified that the paper was at the time read over to Mrs. Mahaney. The evidence of these witnesses was not discredited. In this application it was recited that Mrs. Mahaney was sixty-six years old, and it stated among other things that Cain 0. Mahaney, her husband, enlisted at Oswego on the 29th August, 1862, and that she, under the name of Catharine Dudley, was married to him “on the ** day of July, 1844, by Bev. Bobinson, at London. England.”

The defendant also puts in evidence a transcript from the register of marriages of the parish of St. Nicholas, Deptford, of the county of Kent, England, showing that on the 2Sd May, 1841, Cain Mahaney and Kittie Dudley, both of full age, were married in the parish church by A. E. Kitchley, vicar; also a transcript from the register of births for the sub-district of South Chelsea, in the county of Middlesex, England, showing the birth, on the 10th March, 1844, of Ellen, daughter of Cain Mahaney and Kitty Mahaney, formerly Dudley; also another transcript from the register of births of the same district, showing the birth on the 24th September, 1849, of Elizabeth, daughter of Gain Mahaney and Catharine Mahaney, formerly Dudley; also another transcript from the register of births for the sub-district of Chelsea, northeast, in the county of Middlesex, showing the birth, on the 21st March, 1852, of Cornelius, son of Cain Mahaney and Catharine Mahaney, formerly Dudley. Transcripts of similar entries of births in the general register office, Somerset house, London, were given in evidence, as well as the law providing for the registering of marriages and births, and in pursuance of which the registers were kept. Photographs were also given of the original entries in the registers, and these were verified by the testimony of the person under whose supervision they were taken. Beside these records, the defendant introduced a large number of witnesses who had been acquainted with Mrs. Mahaney for different periods of time since her arrival in this country, and who gave their opinions as to her age, based upon her appearance, as they had observed it, and some of them had heard her speak in general terms of her age. The testimony of these witnesses was to the effect that she was from ten to twenty years older than she had stated in her application in question.

To rebut this evidence the plaintiff introduced a large number of witnesses who had been acquainted with Mrs. Mahaney, to more or less extent, and who, in most, instances, placed her age at the time of her death at about fifty-six years. One of these witnesses, Mr. Cunningham, whose evidence is particularly relied on by the plaintiff, testified that he had seen Mrs. Mahaney and Cain 0. Mahaney in Bristol, England, before 1850, and that they were not married then, that he khew of. He does not profess to give the age of either at that time, except that he says he thinks that Mrs. Mahaney was older than he was. Of himself, he says that he was born at Bristol in 1835- or 1837, and made Bristol his home until about 1850, and was seventeen or nineteen when he left there. Of Cain O. ijtahaney, he says he saw him in the city of Bristol; “ I didn’t know him long, perhaps two or three months; I was quite young.”

Of Mrs. Mahaney, he says that he met her after he knew Cain, and that she then went by the name of Kitty Gaul. He does not state where she lived, except that he understood she lived with some relations by the name of Gaul in an adjoining parish. He admits testifying upon another occasion that he did not see her at any other place than on the street. He does not say where it was that he first saw Gain or where Cain, in fact, lived. This witness is very uncertain in his dates, and while his evidence standing alone may throw some doubt as to whether these parties lived in London at the date of the marriage record, it fortifies but very little the proposition that Mrs. Mahaney was born as late as November, 1834.

There appears to be no reason why Mrs. Mahaney, at the time of making the pension applications in 1878 and in 1879, should state her age greater than she thought it was in fact, or place the date of her marriage earlier than it was according to her then understanding. She evidently had no records to guide her. There is in the case no record evidence of her birth. She was a woman of some education, as she wrote her name to the application of 1878. Both of those applications are utterly inconsistent with her age being only fifty-one in November, 1885; and the fact that those applications, although eleven years apart and taken under different circumstances, are substantially harmonious in the matter of age, adds materially to the weight that should be given to them in the case.

“ The four English records are in the same direction, and, assuming the identity to be established, are entitled to great weight. Ordinarily, identity of name is prima facie evidence of, identity of person, Jackson v. Boneham, 15 Johns., 226; Jackson v. King, 5 Cow., 237, and a middle letter will be deemed no part of the name. Milk v. Christie, 1 Hill, 102; Van Voorhis v. Budd, 39 Barb., 479; Arnold v. Nat., etc., Bank, 3 T. & C., 769. Each case, however, will depend largely upon its own circumstances. In regard to the parties to the marriage record, there may be some doubt as to the identity not only by reason of the evidence of Cunningham, but by reason of different dates being given of the marriage in the pension applications, one stating it as about in 1842 and the other as in July, 1844, and before a different clergyman. But as to the birth records, a careful consideration of the evidence leaves hardly room for doubt as to the identity. If that be so, and the daughter Ellen was born on March 10, 1844, there is scarcely any ground for believing that her mother was born as late as November 10, 1834.

There is another consideration that has some bearing. There is evidence that the daughter Ellen was married at Oswego in 1862, and that she was then seventeen or eighteen years old. These facts are not disputed, and the plaintiff was apparently in a position to be able to ascertain whether they were true or not. If Ellen was then eighteen, that would place her birth in 1844, as stated in the birth record. It also appears that in a written application by plaintiff for membership in the Flour City Life Association, dated July 29, 1889, and signed by the plaintiff, the age of her mother is stated to be sixty-five. The person who took this application undertakes to say that the age of the mother was not filled in by plaintiff or from her statements, but his evidence on the subject is not very satisfactory. The plaintiff, herself, does not speak on the subject. She is not sworn as to the age of her mother, nor are either of her two sisters, though they appear to be accessible. Ho reason appears why they are not called to speak on the subject. The witnesses upon either side who express their opinion as to the age of the deceased do not appear to be her relatives.

In view of the evidence furnished by the pension applications, by the birth records, and as to the marriage and age then of the daughter Ellen and the declaration of the plaintiff, and in view of the necessarily uncertain and inconclusive character of the opinion evidence on the subject of age, we are strongly impressed with the idea that upon the case as it stands before us the verdict is against the weight of the evidence.

It is suggested by the respondent that the statements of the assured were not competent evidence against the plaintiff, and that, therefore, they should not be considered on this appeal. On the contrary we must assume that they were competent, and if the respondent took any exception to their admission, it is not now before us. Bridgford v. Crocker, 3 T. & C., 273. As to such evidence, see Steinhausen v. M. A. Assn., 59 Hun, 336; 36 St. Rep., 70.

It follows that a new trial should be granted upon the ground that the verdict is against the weight of evidence. This will be upon the usual terms in such cases.

Hardin, P. J.

Although as a rule we do not disturb a verdict founded upon conflicting evidence, Clemans v. The Supreme Assembly, Royal Society of Good Fellows, 50 St. Rep., 519, still in a case where so much doubt exists as to the correctness of the finding, as is clearly shown by the foregoing opinion, I am disposed to favor another trial when the parties may, if possible, present more satisfactory evidence upon the vital questions. I, therefore, vote for a new trial.

Judgment and order reversed, and a new trial ordered upon the payment by the appellant of the costs of the trial and without costs of this appeal to either party. In case such costs are not paid within twenty days, then judgment and order affirmed, with costs.


text:
    James H. Phelps, Resp't, v. William H. Delmore, App'lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1893.)

    Contract—Agreement to work farm on shares.
    Plaintiff and one O. entered into a written agreement to the effect that O. should carry on plaintiff’s farm for o e year, the produce of the dairy to be divided, three-fifths to plaintiff and two-fifths to O., and the product of the farm divided equally at the end of the year. At the end of the year the parties entered into a verbal agreement that O. should carry on the farm for another year under the same agreement as before, except that O. was to pay plaintiff $700 in twelve equal instalments for his three-fifths interest in the produce of the dairy. Under this agreement O. worked the farm till midsummer, when he absconded. Held, that plaintiff was entitled to an undivided half of the crops.
    Appeal from a judgment entered in Jefferson county on the 25th March, 1889, upon the report of a referee in favor of the plaintiff for $282.41, damages and costs.
    Action for the conversion of a quantity of wheat and oats in the straw raised by one Owens upon the farm of plaintiff, in the year 1886; also of a half interest in two milk wagons and some other chattels'; also of a third interest .in a quantity of oats in the straw raised upon the farm of one Pierce. The defendant claimed under an attachment and execution in his favor against Owens. The referee decided that the plaintiff was the owner of a half interest in the wheat and oats raised upon his farm, and of a third interest in the oats raised on the Pierce farm, and ordered judgment against defendant for the value of such interests.

      Kilby & Kellogg, for app’lt; H. C. Cook and John Lansing, for resp’t.
   Merwin, J.

The main controversy here is over the. ownership of the wheat and oats raised upon the farm of plaintiff in the year 1886. The farm consisted of about 220 acres and had "thereon about forty cows, together with farming tools and teams. On March 1, 1885, the plaintiff and Owens entered into a written agreement, to the effect, among other things, that Owens should work and cany on the farm for one year from that date, and the produce of the dairy for the term should be divided in the proportion of three-fifths thereof to plaintiff and two-fifths to Owens; that the produce of the farm should be divided equally at the end of the year, and each should furnish one-half the seed; that the hay raised on the farm should be fed to the stock, and if there should be a surplus the same should be left on the farm, and if a deficiency it should be supplied by the plaintiff. Owens went into possession and carried on' the farm under the agreement until March 1, 1886. In February, 188,6, the plaintiff ahd Owens entered verbally into another agreement to the effect, as the referee finds, that Owens should carry on the "farm for one year, commencing March 1, 1886, under the same agreement as in 1885, except that Owens was to pay plaintiff, for his said three-fifths interest in the produce of the dairy, $700 in twelve equal monthly instalments. Under this agreement Owens worked the farm until about August 17, 1886, when he absconded, leaving the wheat and oats partially unharvested. Under the finding of the referee as to the character of the agreement for 1886, it would follow that the plaintiff was the owner of an undivided half of the wheat and oats. Reynolds v. Reynolds, 48 Hun, 144; 15 St. Rep., 464. It is, however, claimed by the defendant that the finding of the referee is not sustained by the evidence; that the agreement was sim- • ply that Owens should pay $700 for the rent of the farm for the year, and that under this Owens became the entire owner of the crops. There was, however, direct evidence in substance that the .agreement was as found by the referee. There was other evidence from which a different conclusion might have been reached. It was for the referee to consider and pass upon the whole and his conclusion should not, I think, be disturbed. Under the attachment procured by defendant against Owens, the whole of the wheat and oats was sold as the property of Owe.ns. This was by the procurement of the defendant, and he indemnified the officer for so doing. The defendant cannot, therefore, complain if he is ■charged as having converted the one-half belonging to plaintiff. Pool v. Ellison, 56 Hun, 108; 30 St. Rep., 135.

As to the oats raised upon the Pierce place, there seems to be no particular question as to the right of the plaintiff to one-third thereof. It was not error to exclude evidence of what happened to some portion of the oats the year after the sale under defendant’s attachment.

The defendant claims that the referee erred in refusing to find certain requests. The record before us does not show any such refusal, or that the referee acted thereon at all. There is a paper headed “ defendant’s requests to find; ” but there is nothing indicating what action, if any, the referee took in regard to the requests referred to. In such a case there is nothing reviewable, according to the rule laid down in Harris v. Van Wart, 96 N. Y., 642; McCulloch v. Dobson, 133 id., 114; 44 St. Rep., 89. Assuming, however, that the referee refused to find the requests, it is not made to appear that any error was committed that would affect the judgment.

The defendant further claims that the referee erred in allowing the plaintiff to amend his bill of items. The case, however, does not' show any bill of items. Proof of the matters. concerning which an amendment was allowed was admissible under the complaint.

Our attention is called to some exceptions to rulings upon evidence, but we find no error that calls for a reversal.

It follows that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J:, and Martin, J., concur.


author: Per Curiam.

text:
    The People ex rel. The Edison Electric Illuminating Co., App'lt, v. Edward P. Barker et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Corporations—Taxes.
    Where the statement submitted to the assessors by a corporation is of a general character, containing no items or details, the assessors are not bound to accept it -as absolute, but have a right to judge for themselves, and their action in rejecting it should not be reversed in the absence of affirmative evidence showing that the company has been aggrieved thereby.
    . Appeal from a judgment at special term dismissing writ of certiorari to review assessment of taxes.

      C. E. Miller, for app’lt; William H. Clark (G. S. Coleman, of counsel), for resp’ts.
   Per Curiam.

In order that the court should interfere with an assessment, the party complaining must show affirmatively that he has been aggrieved. In the case at bar, upon the coming in of the return to the writ, the relator moved for judgment. It appeared from the return that the relator had submitted a statement of its property of the most general character, containing no items or details so that its accuracy could be judged. It is. probable that large amounts were deducted in the statement as the value of patent rights, but what they were, or'what they were worth, does not appear. We do not think that the commissioners were bound to accept these wholesale statements as absolute, but had a right to judge for themselves. If the relator desired to impeach their judgment, it had ample opportunity in this proceeding by evidence to show that the valuation of the respondents was erroneous, and thus to have relief. If the relator’s position is correct, the tax commissioners are powerless to reject a statement which they know to be false or misleading, as they have no power to call and examine witnesses before them. The commissioners have a right to be guided by their own judgment, and in order that their action shall be reversed such judgment must be shown to be erroneous by legal evidence, and not by lump swearing by a person who is not shown to have the requisite knowledge to be a competent witness. -

The writ should be dismissed, with costs.

Yan Brunt, P. J., and O’Brien, J., concur.


text:
    William Palen, Rec'r, App'lts, v. Adelaide E. Bushnell et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Supplementary proceedings—Appeal.
    An appeal will not lie from an order made by a judge out of court in supplementary proceedings; if a review of such order is desired a motion to vacate such order should be made, and from the order made on such motion an appeal will lie.
    Appeal from an order appointing in proceedings supplementary to execution one Adolph Bierck, Jr., receiver of all the debts, property, etc., of the appellant William Palen, as receiver of Henry Bange, the judgment debtor.

      W. G. Holbrook, for app’lt'; H. M. Whitehead, for resp’ts.
   Per Curiam.

The order appealed from was an order made by a judge out of court, and not by the court, under the title of the Code relating to proceedings supplementary to execution. By § 2433 it is provided that an order made in the course of'a proceeding can be reviewed only as follows: First, an order made by a judge out of court may be vacated or modified by the judge who made it, as if it was made in an action, or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution was issued. If the appellants,, wished tq review the order of Justice' Beach they should have made a motion, on notice either to Justice Beach or to the court, to vacate that order, and from the order granted on that motion an appeal would lie; but we think no appeal could be taken until such motion was made. The appeal must, therefore, be dismissed, with ten dollars costs and disbursements.

Tan Brunt, P. J., O’Brien and Ingraham, JJ., concur.