author: Pryor, J.

text:
    Carrie Guran Davis, Pl’ff, v. Simon Davis, Def't.

      (New York Common Pleas, Special Term,

      Filed February 20, 1893.)

    1. Divorce — Foreign.
    A decree of divorce in another state, proceeding only on a constructive service of process by publication, though valid by the law of the forum, is, by the law of New York, a nullity as to defendant spouse resident in New York.
    2. Same — Subsequent marriage.
    A marriage with the plaintiff in such divorce suit contracted after the divorce, annulled on the ground of the invalidity of the divorce.
    3. Same.
    The judgment of divorce, however, cannot be impeached in the action by the second spouse, for fraud or error, nor because the divorce was for a cause not recognized in this state.
    Action to annual a marriage. In a suit in Massachusetts by this defendant against a former wife, proceeding on a constructive service of process by publication, he obtained a decree of divorce for desertion. That decree is challenged as a nullity for want of personal service and of an appearance by the defendant therein.
   Pryor, J.

The plaintiff sues to annul her marriage with the defendant, because of the alleged invalidity of his judgment of divorce from another woman. The judgment is impugned for fraud; for proceeding upon a ground not recognized as a cause of divorce in this state; and for error in deciding that the plaintiff in the action was a resident of Massachusetts. But, that neither of these objections is available to the plaintiff in the present action, is clear on principle, and was adjudicated in Kinnier v. Kinnier, 45 N. Y., 535.

The only ground, therefore, upon which the plaintiff may invalidate the divorce between the defendant and the other woman, is defect of jurisdiction in the court pronouncing the judgment to .affect her status as a wife.

As the marriage purporting to be dissolved was not celebrated in Massachusetts; as the defendant in the divorce suit was not domiciled in that commonwealth, nor was served with process there, nor appeared in the action; it results that, by the law of New York, the judgment against her is of no effect; that she is still the wife of the defendant; and that, by necessary consequence, his marriage with this plaintiff is a nullity. Mellen v. Mellen, 10 Abb. N. C., 329; O'Dea v. O'Dea, 101 N. Y., 23; Jones v. Jones, 108 N. Y., 415; 13 St. Rep., 838; Williams v. Williams, 130 N. Y., 193; 41 St. Rep., 280; De Meli v. De Meli, 120 N. Y., 485; 31 St. Rep., 704; People v. Baker, 76 N. Y., 78.

To this conclusion I am compelled ; but I am not forbidden to .say that my reason revolts against it. By the law of Massachusetts, its court had jurisdiction of the defendant in the divorce suit, and the decree of divorce is valid and conclusive. By virtue of the supreme law of the nation a decree in divorce, valid and effectual by the laws of the state where obtained, is valid and ■effectual in all other states,” Cheever v. Wilson, 9 Wallace, 109, and jet I am to declare this Massachusetts judgment a .nullity. And why? Because the jurisdiction of the Massachusetts court rests solely on a constructive service of process by publication; and by the law of New York such service is of no avail. But, such constructive service of process is the only foundation of the jurisdiction of this court in the present case; yet, by the law of New York, such service gives jurisdiction to its court, and the judgment I am to render is not only valid but of so transcendent an efficacy as to impeach the records and cancel the judicial proceedings of another state. In reason, such service of process should be sufficient in both states or in neither.

Equally anomalous will be the effect of the judgment of this court, on the relation and rights of the parties. In Massachusetts, not the former spouse but this plaintiff is the lawful wife of the defendant; while in New York the former spouse is still the wife of the defendant, and his connection with the plaintiff a crime. Indeed, relying on the nullity of the Massachusetts decree, the former wife has instituted here an action for divorce from the defendant, on the allegation that his marriage with this plaintiff is an adulterous association. The executive of New York may demand from Massachusetts the rendition of the defendant as a bigamist; but can he be a bigamist whom Massachusetts had released from the former marriage ?

The absurd and mischievous consequences of the present judgment do not relieve me from the necessity of pronouncing it; but, perhaps, the exposition of them may not be amiss in the prevalent agitation for a uniform system of marriage and divorce.

Judgment for plaintiff.


source: Caselaw Access Project

author: Davie, S.

license: Public Domain

text:
    In the Matter of the Estate of Danforth Daggett, Deceased.

      (Surrogate’s Court, Cattaraugus County,

      Filed November 21, 1892.)

    Limitation — Waiver of by including claim in inventory.
    Including in the inventory a note or claim against the executor, without other comment or memoranda, is such an acknowledgment as to take it out of the statute of limitations.
    Judicial settlement of accounts.

      E. A. Scott, for the widow; W. R. Pindar, for adm’r.
   Davie, S.

This is a proceeding for the judicial settlement of the accounts of Nelson Daggett, as administrator of the estate of said deceased.

Danforth Daggett died intestate, at the town of Yorkshire, in the month of. August, 1889, leaving a widow and descendants, and owning real estate of the value of $1,150.00, and personal property to the amount of about $500.00, and letters were granted upon his estate September 2, 1889.

The administrator, with the aid of appraisers, duly appointed for that purpose, prepared an inventory of the estate, which was filed November 7, 1889.

In making such inventory, the appraisers sought to set off to the widow, in addition to the articles exempted to her by the Rcvised Statutes, and the $150 provided for by chap. 157 of the Laws of 1842, an interest in the real estate of the deceased in the following terms : “ Under chap. 406, Laws 1889, we set off in conformity to said law one house and lot in the village of Yorkshire Center, N. Y., and being the same house in which the said Dan-forth Daggett resided before his demise, described, etc., * * * and appraised at $1,000.”

A proceeding was thereupon commenced in surrogate court, upon the petition of the widow, to procure an order directing the administrator and appraisers to correct said inventory by setting off to the widow the entire amount of personal property to which she was entitled under the provisions of chapter 406, Laws 1889, which proceeding resulted in decree directing said appraisers to set off to the widow, in addition to what they had already allowed her, other personal property to the amount of $369.31, and the administrator appealed from the order entered therein to the general term where said order was affirmed, Matter of Daggett, general term, April 16, 1891, 37 St. Rep., 810, and the widow thereupon became entitled to the entire personal estate.

Among the items of personal property included in the inventory was a promissory note, made by the administrator to the deceased, dated September 23, 1879, for the sum of $150.18, and which, with the accrued interest, was appraised at $251.18. In the account filed the administrator credits himself with the amount of said note, so appraised, alleging that the same is not a valid claim, being barred by the statute of limitations.

Objections are filed on behalf of the widow to various items of said account, none of which are now insisted upon aside from the claim that the administrator should be charged with the amount of said note.

It is provided by statute that the naming of any person executor in a will shall not operate as a discharge or bequest of any just claim, which the testator had against such executor, but that such claim shall be included among the credits and effects of deceased in the inventory and such executor shall be liable for the same as for so much money in his hands at the time such debt or demand becomes due. 2 Rev. St., 84, § 13. And although insolvent at the time of his appointment he is bound to account for a debt so due from him and should be charged therewith on the settlement of his accounts as for so much money in his hands. Baucus v. Stover, 89 N. Y., 1.

The principle enunciated by the statute and applied by the authority above cited is recognized as equally applicable to administrators, inasmuch as the necessity for such a rule, viz., to obviate all difficulty, doubt, embarrassment and the incongruity of requiring a personal representative to proceed against himself for the collection of a debt, is equally great in both cases.

So, the inquiry in this case is, was this note a valid claim against Uelson Daggett at the time of his appointment, or has it become so by any act of his since his appointment ? If it is, then he must account for it, as for so much money in his hands.

The note, upon its face, is barred by the statute, but it is claimed that the running of the statute was suspended by an indorsement thereon of $1.50, under date of May 18, 1885.

The indorsement is in the following form : “ May 18, 1885, received on the within note, one dollar and fifty cents,” but it' does not appear that such indorsement was made with the knowledge or consent of the maker of the note, or that he, in fact, made any payment whatever thereon. Several witnesses are called who were well acquainted with the handwriting of both the intestate and the administrator, and who testify, with a considerable degree of certainty, that such indorsements are not in the handwriting of either. They further state that the note was exhibited to them at the time of making the appraisal and that the indorsement then had the appearance of having been very recently made, tha't the ink presented a bright, metalic luster peculiar to writing recently done.

The indications are that such indorsement was made by some one interested in beeping the note from becoming barred, and acting under the supposition that the mere crediting of a small amount thereon would accomplish that result, and there is nothing in the fact that the note bears such indorsement that justifies the conclusion that the note is not barred by the statute.

It is urged on the part of the widow that, assuming such note to have been barred at the time of taking the inventory, the act of the administrator in including it among the other assets of the estate was a sufficient written acknowledgment to remove the bar.

In the original inventory filed, this note was described as follows : “ One note by Nelson Daggett, dated Sept. 23d, 1879, present amount, $251.18.” No other comment or memorandum, with reference to this demand, appears in the inventory, although one other claim set forth therein is characterized as “ doubtful," and another as “ outlawed.” The inventory is verified by the administrator in the following form :

State of New York, j Cattaraugus county, f

I, Nelson Daggett, do swear that I am administrator of the estate of Danforth Daggett, the above named deceased:

That the following inventory is in all respects just and true; that it contains a true statement of all the personal property of the said deceased which has come to my knowledge, and particularly of money, bank bills and other circulating medium belonging to the said deceased, and of all just claims of the said deceased against me, according to the best of my knowledge (and also of the real estate of deceased, as required by chapter 406, Laws of 1889). Nelson Daggett.

Sworn to before me, this 7th ) day of November, 1889, j

C. S. Persons, Justice of the Peace.

While an acknowledgment or promise in writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take a case out of the operation of the statute, Code Civ. Pro., § 395, yet it has been distinctly held that including such claim in the inventory was a sufficient acknowledgment. Ross v. Ross, 6 Hun, 80; Morrow v. Moarow, 12 id., 386; Clark, Adm’r v. Van Amburgh, 14 id., 557; Bryar v. Wilcocks, 3 Cow., 159; Stuart v. Foster, 18 Abb. Pr., 305.

The evidence discloses that, at sometime during the progress of the appraisal, the administrator objected to this note being inventoried, but that is of little consequence in view of the fact that it was included among the assets and verified by the administrator as a just claim of the deceased against him. If the administrator had persisted in his refusal to include this note among the assets, or had refused to verify the inventory containing it, then, of course, no liability could be predicated upon the fact that the appraisers had enumerated it in the schedule of assets; or even if characterized in the inventory in the same manner as another claim therein set forth, “ outlawed,” there might be some opportunity of escaping, in this casé, an application of the authorities above cited; but the declaration of the administrator under oath regarding the claim in controversy does not seem to leave much opportunity for speculation.

It must be held in this case that the administrator should be charged with the amount of the note, and a decree will be entered accordingly.


text:
    In the Matter of the Estate of William F. Wheeler, Dec’d.

      (Surrogate’s Court, Cattaraugus County,

      Filed December 22, 1892.)

    1. Collateral inheritance tax — Parental relation.
    One who has been brought up by testator from childhood and treated as one of the family, although not adopted by him, is one to whom lie stood in the relation of a parent within the meaning of the statute.
    2. Same — Real estate — Equitable conversion.
    While real estate which descends or is devised directly to wife or chil- - dren is not taxable, yet if the decedent makes such a testamentary disposition of his real estate as to convert it into personalty, the shares of the legatees under such a will are liable.
    3. Same — Postponement oe assessment.
    A large part of testator’s real estate was partnership property, and the actual value of his interest depended largely on the manner in which it was controlled. The will directed the executors to continue in the partnership until it might be disposed of to the best advantage. Held, a proper case for postponement of the assessment and collection of the tax until the parties entitled came into actual possession.
    Collateral inheritance tax proceedings.

      William F. Wheeler, for ex’rs; H. O. Wait, county treas’r, in person.
   Davie, S.

William F. Wheeler died at the town of Port-_ville, Cattaraugus county, on the 6th day of June, 1892, leaving a will, which was admitted to probate by the surrogate’s court of said county on the 21st day of June, 1892, and on the same day letters were issued thereon to William E. and Nelson P. Wheeler,, sons of deceased, the executors named in said will.

Shortly thereafter an appraiser was appointed, upon the application of the executors, to determine the value of the estate of decedent subject to taxation pursuant to the provisions of the “ Act in relation to taxable transfers of property.” Chapter 399, Laws 1892. Such assessment was made, and report thereof duly filed, and this controversy arises upon the proceedings to determine the amount of tax to which said estate is liable, as required by § 13 of said act.

By the terms of the will and codicils thereto, the testator devised to his wife the use, during her life, of certain real estate designated in the will as the “homestead," and also bequeathed to her certain articles of personal property and the sum of $20,000 absolutely, one-half thereof to be paid upon the probate of the will, and the balance in one year from the death of the testator. To each of his two daughters the testator bequeathed the sum of $5,000 in addition to certain specific articles; to his son Nelson he devised an undivided one-half of the testator’s interest in certain lands in the county of Venango, Pennsylvania; and to each of his sons the sum of $5,000. By the terms of bis original will, testator bequeathed the sum of $2,400 to one Emma Godfrey, but by a codicil to said will this bequest was revoked, and in place thereof Miss Godfrey was given an annuity of $300 during her life.

The original will further provided: “ I appoint Nelson P. Wheeler and Wm. E. Wheeler (my sons) for the executors of my will, and also appoint them my trustees, to whom I give and bequeath to each the sum of four thousand dollars, in addition to the aforesaid bequests to them. All the rest and residue of my estate, both real and personal, whatsoever and wheresoever situated in any of the United States, I give, devise and bequeath to my sons,'Nelson P. Wheeler and Wm. E. Wheeler, or their survivors, and the heirs, executors and administrators of such survivor in trust, first, to pay and expend all such sums as may be necessary for the support and education of my minor children, in order that they may be supported and educated in a manner suitable to their state in life, until said children may arrive at their majority. Second. I direct my said executors and trustees to divide the remainder of my estate among my children, Nelson P., Wm. E., M. Augusta and Lilla, and my said wife, Morilla, each an equal share, which I direct my executors, heretofore named, to make as soon after the said children, or the survivor of them, shall arrive at majority, and my estate, last aforesaid, disposed of to the best advantage according to the nature thereof, and when it shall be in the minds of my executors not necessary to continue longer any of my said estate in partnership with that of other persons now holding in partnership with me.”

Then followed in the will an expresss direction to the executors to continue said estate in partnership with that of said other persons until the same might be fully disposed of to the best interest of said estate, and full power and authority was therein given to the executors to sell and convey said real estate.

The original will bears date the 21st day of March, 1866. By a codicil thereto, under date of ¡November 20, 1882, the testator further provided that “ the gift and bequest of the sum of four thousand dollars to each of my sons, William E. Wheeler and ¡Nelson P. Wheeler, in my said former will is hereby ratified, but it is to be expressly understood that the said bequests are made to them severally as compensation for their services as executors and trustees under my last will and testament, and are to be paid to them severally only in the event they serve in that capacity, and I do further will and ordain, that for their services as such executors and trustees they be severally paid in addition to said bequest each at the rate of one thousand dollars for each year of such service, and further, that the foregoing compensatory provisions in their behalf shall be in full satisfaction 'to them respectively for all such services.”

The first question which arises is upon the claim of the legatee, Miss Godfrey, to exemption from taxation under the provisions of said act.

She is of the age of fifty-six years, and no relation to the testator; the present cash value of ¡her annuity, ascertained and computed in the manner directed by § 11 of said act, is the sum of $2,759.06, and, if liable to taxation at all, is at the rate of five per cent.

This legatee had never been adopted by the testator in conformity with the laws of this state, but the reason urged for such exemption is that she is “ a person to whom the deceased, for not less than ten years prior to his death, stood in the mutually acknowledged relation of a parent.” Section 2 of said act.

The evidence shows that this legatee was left motherless and homeless at the age of six years; that she was thereupon taken into the family of the testator, and continuously resided there up to the time of his death; she was educated by the testator, and always supported and maintained by him ; she had no income or property of her own, and no communication whatever with any of her own relatives, except to occasionally visit a brother residing near by; she always enjoyed the same family privileges and social advantages as did the daughters of the testator; was‘always received in company in the community where testator lived as a member of his family; testator from time to time made gifts to his children, always giving an equal amount to this legatee; shortly before his death all of testator’s children visited him, and he presented to each the sum of $1,000, giving to Miss Godfrey the same amount; he procured a policy of insurance upon his life for the sum of $3,000, in which his two daughters and Miss Godfrey were named as beneficiaries to an equal amount. The life estate to the wife of the property designated in the will as the “homestead,” is followed by this injunction: “1 do hereby direct and ordain that it be and remain also a home for our said daughter, Lilla, and our friend, Emma Godfrey, respectively, as long as they, or either of them, may need or desire to make that their home.”

¡Notwithstanding all these facts, it is contended that, inasmuch as there was no legal adoption of this legatee by the testator, and as he designates her in his will by the term of “ friend ” and not that of “ daughter,” she is not entitled to the exemption. These suggestions impress me as having but little force; the statute under which this tax is sought to be enforced is, to some extent, penal in its nature, and should receive a liberal construction in favor of those sought to be brought within its operation. The fact that testator did not speak of this legatee as a daughter is of little importance in view of all the facts disclosed by the evidence, showing conclusively that, for a long period of years, testator treated her, in every particular, the same as he did his own daughters, always actuated by the same solicitude for her comfort and welfare as for theirs. The reciprocal relations existing between testator and his own children were no better defined than those between him and this legatee; there was an utter dependence upon the one side, and all the evidences of paternal protection upon the other; she always received from the testator the support and maintenance expected from a parent, and extended to him the obedience, deference and respect due from a child. In my judgment, it would be difficult to conceive of a case more clearly within the spirit and intent of the exempting portion of the statute, and it must be held that the bequest to Miss Godfrey is not subject to taxation under said act. Matter of Spencer, 21 St. Rep., 145; Matter of Butler, 58 Hun, 400; 34 St. Rep., 189.

The report of the appraiser shows the value of the personal estate of decedent to be the sum of $146,921.80. From this should be deducted a specific legacy to the Presbyterian church society, of the town of Portville, of $3,000, the value of the annuity of Miss Godfrey, $2,757.90, and debts of the testator to the amount of $6,000, leaving a balance of $135,163.90, subject to taxation at the rate of one per cent, making a total tax of $1,351.63, to be paid by the said legatees in proportion to the amount of their respective shares and legacies, and no reason is urged, and, in fact, none seems to exist, why said tax should not be immediately payable.

But a more perplexing question is raised m relation to the liability of the real estate to taxation. Hnder the provisions of the statute, chap. 399, Laws 1892, the real estate, if devised directly to the sons and daughters, would not be liable to taxation, but it is urged that, by the terms of the will, there is an equitable conversion of the real estate so that the legatees take no interest in the real estate itself, but in the proceeds derived from the sale thereof.

While it is undoubtedly true that a will must at least be of such a character as to leave no doubt of the testator’s intent to have his real estate converted into personalty in order to sustain the theory of equitable conversion, Hobson v. Hale, 95 N. Y., 588, it would seem that the provisions of this will would admit of no other construction. It not only clothes the executors with certain powers regarding the control and management of the estate, but specifically gives them the power to contract for the sale of the same and execute deeds of conveyance thereof, directs the payment of an annuity to Miss Godfrey during her life, provides for the support and education of his minor children, and directs an equal division of the residuum after payment of the specific legacies among his wife and four children. This undoubtedly constitutes a conversion of the real estate. Hatch v. Bassett, 52 N.Y., 359; Power v. Cassidy, 79 id., 602; Dodge v. Pond, 23 id., 69.

While real estate which descends or is devised as such directly to the wife or children is not taxable, it is evident that if decedent makes such a testamentary disposition of his real estate as to convert it into personalty, the shares of the legatees under such a will are liable.

All taxes imposed by the act referred to are due and payable at the time of the transfer, provided, however, “ that taxes upon the transfer of any estate, property or interest therein limited, conditioned, dependent or determinable upon the happening of any contingency or future event, by reason of which the fair market value thereof cannot be ascertained at the time of the transfer as herein provided, shall accrue and become due and payable when the persons or corporations beneficially entitled thereto shall come into actual possession or enjoyment thereof.” Section 3, chap. 399, Laws 1892.

It appears in this case that the real estate of which testator died seized was very largely, if not entirely, pártnership property, used and occupied by him in connection with' other persons in the prosecution of the lumbering and tannery business, and that the actual value of such real estate or testator’s interest therein, is dependent largely upon the manner in which the same is controlled ; this seemed to have been the consideration which prompted the testator to clothe his executors with discretionary power regarding the manner and time of disposing of the same, and it is by no means practicable to ascertain the value of such interest at the present, but would seem to be a very proper case for postponing the assessment and collection of the tax to which the same might be subject until the parties entitled thereto come into actual possession or enjoyment thereof.

A decree will be entered accordingly.


author: Coleman, S.

text:
    In the Matter of the Probate of the Will of Jarvis Knapp, Deceased.

      (Surrogate’s Court, Orange County,

      Filed January 12, 1893.)

    Will — Revival of revoked.
    A will which has been formally revoked but not destroyed can be revived by the execution of a codicil to it without a re-execution of the will. The intermediate will is thereby revoked.
    Probate of will.

      Esmond & Ward, for petitioner.
   Coleman, S.

Jarvis Knapp, on the 11th day of April, 1885, duly executed a last will and testament, and on the 22nd day of June, 1889, he in like manner executed another will, in which he revoked all former wills by him made. On the 29th day of September, 1890, he executed a codicil, in which it is stated :

“Whereas I, Jarvis Knapp * * * * did on April 11, 1885, make my last will and testament, being the foregoing will, etc.,” and further on “I ratify and confirm my said last will so far as it does not conflict with this codicil thereto."

On the 29th of September, 1890, he executed another codicil in which he again referred to the will of April 11, 1885. The will of 1885 and both codicils are all written upon the same sheet of paper and were all executed with proper legal formalities. This will and codicils are now offered for probate.

The question presented for my consideration is whether a will which has been formally revoked but not destroyed can be revived, by the execution of a codicil to it, without a re-execution of the will in the"manner prescribed by statute.

At first thought it would appear that a valid codicil could not be made to an invalidated will; but the law seems to be that a will and codicil, under these circumstances, together constitute a valid testamentary instrument.

In 1 Jar. on Wills, 188, the author states the law in England to be that “ if a testator makes a will in 1830, and at a subsequent period, say 1840, makes another will inconsistent with the former, but without destroying such former will, and afterwards makes a codicil which he declares to be a codicil to his will of 1830, this would set up the will "so referred to in opposition to the posterior will.”

And that view of the law is sustained by the courts of this state in the cases of Storms will, 3 Redf, 327, and Brown v. Clark, 77 N. Y., 369. In'the first of these cases the surrogate admitted the will on insufficient proof as to its execution, the execution of the codicil being completely proved. In Brown v. Clark, supra, which was a case where a woman, being unmarried, executed a will and subsequently married, and after marriage duly executed a codicil to such will, it was held that any written testamentary document in existence at the execution of a will may, by reference, be incorporated into the will. And the will and codicil were sustained, although the will by law had been revoked by the marriage.

The effect of sustaining the will and codicil is to revoke the intermediate will, 1 Jar. on Wills, 188, even though not revoked in terms by the codicil, as being inconsistent. But in this case this is not material, as the provisions of the first will and codicils are practically the same as those of the other will.

An order may be made admitting the will and codicils to probate.


author: Martin, J.

text:
    Joseph G. Hitner, Resp’t, v. Enos Boutilier et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Attachment — Affidavit .
    The material averments necessary to entitle a plaintiff to a warrant of attachment must be stated positively, and not upon information and belief, unless the source of information and grounds of belief are stated.

      Appeal from order denying motion to vacate attachment.

      S. M. Lindsley, for app’lts; Jones & Townsend, for resp’t.
   Martin, J.

This is an appeal from an order denying defendants’ motion to vacate an attachment. The motion was made on the papers upon which the attachment was granted.

In the affidavits for the attachment, the only statement of the facts constituting plaintiff’s alleged claim or cause of action was as follows : “ That the grounds for said claim and causes of action are fully set forth in the complaint in this action, which is hereto annexed, and which has been duly verified by this deponent, September 20, 1892, and deponent here refers to the said complaint, and the same and the whole of it is made a part of this ■affidavit, with the same force and effect as though it was here set forth and repeated in full.” The allegations .in the complaint were all made upon information and belief, with no statement in the complaint or affidavits as to the sources of plaintiff’s knowledge or grounds of his belief.

The appellants contend that the attachment was improperly granted, because none of the affidavits upon which the warrant was issued disclosed the existence of any cause of action against the defendants.

It seems to be settled that to entitle a plaintiff to a warrant of attachment, he must, by affidavit, show sufficient facts to establish a cause of action against the defendant, and specify the grounds of his claim. Code Civ. Pro., § 636; Jacobs v. Hogan, 85 N. Y., 243, 244; Manton v. Poole, 67 Barb., 330; Walts v. Nichols, 32 Hun, 276; Belden v. Wilcox, 47 Hun, 331; 14 St. Rep., 374; Pomeroy v. Ricketts, 27 Hun, 243. In Jacobs v. Hogan, supra, Rapallo, J., in delivering the opinion of the court, said: “ The affidavit wholly omitted to show that the plaintiff had any cause of action against the defendants upon which an attachment could be founded or to specify the grounds of his claim. These were fatal jurisdictional defects, which entitled the appellants to have it set aside.”

It is obvious that in this case sufficient facts were not shown to entitle the plaintiff to an attachment, unless they appear in the complaint. But the facts in the complaint are stated solely upon information and belief, and the rule seems to be that the material averments necessary to entitle a plaintiff to a warrant of attachment must be stated positively, and not upon information and belief, unless the sources of information and grounds of belief are stated. Steuben Co. Bank v. Alberger, 78 N. Y., 252; Hill v. Bond, 22 How., 272; Ackroyd v. Ackroyd, 20 id., 93; Ex parte Haynes, 18 Wend., 611; Pride v. I. D. & W. Ry. Co., 21 St. Rep., 261; Buell v. Van Camp, 119 N. Y., 160; 28 St. Rep., 947. In Buell v. Van Camp, supra, Earl, J., said: “All that is required is that the information furnished by the affidavit shall be such that a person of reasonable prudence would be willing to accept and act upon it. The mere averment, however, of a fact upon information and belief without more is not sufficient; but the sources of the information and the grounds of the belief must be stated, so that the judicial officer to whom the affidavit is presented may judge whether the information and belief have a proper basis to rest on.” In 1 Rurnsey's Prac., 518, it is said : “In this case, as in others, a verified pleading is regarded as an affidavit. (Code Civ. Pro., § 3343, subd. 11.) When so used, however, it should comply with the requirements of other affidavits as to the manner of stating the facts.”

In the case before us, there was no verification by affidavit of the facts stated in the complaint. Such facts having been stated on information and belief only, without any verified statement showing the sources of information or grounds of belief, we think the affidavits were not sufficient to justify the issuing of the attachment.

The case of Haebler v. Bernharth (115 N. Y., 459; 26 St. Rep., 230), is not in conflict with this conclusion, as an examination of the appeal book in that case discloses that the allegations in the complaint were positively stated.

Moreover, the sufficiency of the plaintiff’s affidavits to show that the defendants had removed or were about to remove their property from the state with intent to defraud their creditors, or, had assigned, disposed of or secreted, or were then assigning, disposing of or secreting their property with like intent, is, to say the least, doubtful. But, as the order must be reversed on the grounds already stated, it is unnecessary to examine this question.

It follows, therefore, that the order appealed from should be reversed, and the attachment vacated.

Order reversed, with ten dollars costs and disbursements, and motion granted. -

Hardin, P. J., concurs; Merwin, J., not sitting.


text:
    The Syracuse Solar Salt Company, App’lt, v. The Rome, Watertown & Ogdensburg Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Railroad — Trespass.
    A railroad company, without authority, constructed its tracks through a certain street, the fee of which to the centre belonged to plaintiff, subject to the right of the public to use the same. While thus in possession it mortgaged all its property and franchises, of which defendant became the owner at foreclosure; none of plaintiff’s officers attended the sale, or knew that the company or defendant believed that the property sold included the right of way over its land. Plaintiff sold defendant’s predecessor a piece of land to enable it to extend its tracks. Seventeen years after the laying of the tracks plaintiff brought action to enjoin defendant from the operation of its road over its land, and to recover damages for the past maintenance and operation. Held, that as the action was to enforce plaintiff’s legal rights, which had not expired, and its laches, if any, were not accompanied by circumstances amounting to an estoppel, the complaint was improperly dismissed.
    Appeal from a judgment, entered in Onondaga county, December 11, 1891, on the decision of the court at special term, dismissing the plaintiff’s complaint on the merits with costs. The action was brought by the plaintiff, as the owner and lessee of property on Marsh street, in the city of Syracuse, to enjoin the defendant from the maintenance and operation of a steam surface railroad on the street, and to recover damages for the past maintenance and operation thereof. The material allegations of the complaint were put in issue by the answer. On the trial the court held that the plaintiff was not entitled to the relief sought in this action, and dismissed the complaint on the merits with costs.

      W. S. Andrews, for app’lt; Tracy, McLennan & Ayling and William B. Hornblower, for resp’t.
   Martin, J.

The plaintiff is the owner in fee and in possession of certain premises described in the complaint. It has been such owner and held such possession since about March 2, 1860. These premises are situated on the west side of Marsh street, and extend to the center line thereof, subject to the right of the public to use the same as a street or highway. Marsh street was, prior to March, 1860, and ever since has been, a public highway, and one of the public streets of the city of Syracuse.

On November 22, 1855, the Syracuse Coarse Salt Company leased from the state of New York the other land described in the complaint. This lease was assigned to the plaintiff March 2,1860. The plaintiff thereupon entered into possession of such land, and has ever since remained in possession thereof under its lease, which has not expired. The easterly line of these premises is also the centre line of Marsh street. The premises owned by the plaintiff in fee extend along the centre of Marsh street for a distance of about eight hundred feet, and the premises leased by it for a distance of about two hundred and sixty-four feet! Since 1860, the plaintiff has used the lands owned and leased by it for the manufacture of coarse salt by solar evaporation, and has erected thereon vats for that purpose. It has also erected upon the lands owned by it six small dwellings fronting on Marsh street, which are occupied by its tenants.

In 1871 and 1872 the Syracuse Northern Railroad Company laid the tracks of its railroad through a portion of Marsh street and past the premises owned and leased by the plaintiff, and commenced and continued to operate its railroad over and upon such tracks. In 1872, 1873 and 1874 it, with the consent of the city of Syracuse, extended its tracks from Marsh street through Franklin street to the tracks of the New York Central Railroad Company, and from Marsh street through various other streets in the city to the tracks of the Chenango Talley Railroad Company. The- defendant and its predecessors have operated this railroad through Marsh street since 1871 and 1872. In front of the premises owned by the plaintiff the tracks of the railroad were to some extent laid upon the west half of Marsh street and upon the lands of the plaintiff. Upon the same side of the street the company also placed side-tracks and switches, but the main track for substantially the whole distance is beyond the centre line of the street and upon lands to which the plaintiff has no title. The city of Syracuse consented to the use which was made of Marsh street for railroad purposes, including the laying of a switch therein, to the extension of the tracks from Marsh street through Franklin street to the tracks of the New York Central & Hudson River Railroad Company, and to the connection made between the tracks in Marsh street and the tracks leading to the Chenango Valley Railroad.

In 1873 the Syracuse Northern Railroad Company purchased of the plaintiff for $585 a piece of land containing about one-third of an acre, which adjoined the premises now owned by the plaintiff, and extended to the centre of Marsh street This land was purchased to enable the railroad-company to extend its tracks from Marsh street through Franklin street to the tracks of the New York Central & Hudson River Railroad Company. After its purchase, the company, in making such extension, laid its tracks across the land so purchased, which would have been practically useless to the company unless it could also use its tracks in Marsh street. This fact was known to the plaintiff when it sold the land.

The tracks and switches operated by the defendant in Marsh street were, however, laid and have been maintained without the express consent of the plaintiff, without acquiring any title to that portion of Marsh street owned and leased by it, without paying or offering to pay any compensation therefor and without instituting any proceeding to condemn or acquire plaintiff’s interest therein.

In July, 1874, an action was commenced against the Syracuse Northern Railroad Company to foreclose a mortgage given by it, which covered all the properly, tracks, rights and franchises it had in Marsh street. Certain towns in Oswego county and the city of Syracuse were made parties to that action, which was defended. Judgment of foreclosure was entered therein, and the property, rights and franchises of said railroad company were sold thereunder in August, 1875. The company was subsequently reorganized under the name of the Syracuse & Northern Railroad Company, and consolidated with the defendant December 15, 1875, when the defendant became the purchaser and owner of the property sold under such foreclosure. The tracks and switches in Marsh street have been used by the defendant and its predecessors from the time they were laid until the time of the commencement of this action.

The officers of the plaintiff knew of the pendency of the foreclosure action, that defenses had been interposed, that judgment of foreclosure was rendered, that the property described in said judgment was to be sold, the time and place of such sale, and that the property was sold to the defendant’s predecessor in title. No claim was made or notice given by the plaintiff of any adverse interest in the right of way in Marsh street, used and occupied by the Syracuse Northern Railroad Company and its successors, until just prior to the commencement of this action, nor was any claim made or notice given to the defendant or its predecessors of any right, title or interest in or to the property involved in this action until about that time.

The defendant was a purchaser for value of the property acquired under such foreclosure, including all the rights and property of the Syracuse & Northern Railroad Company and its predecessor in and to Marsh street, and the property owned by it therein. The defendant’s grantor had no knowledge that the plaintiff claimed any right, property or interest in the street, and was a purchaser of the property in good faith.

Before the foreclosure sale a large amount of bonds had been . issued by the Syracuse Northern Railroad Company, secured by the mortgage foreclosed. Since such sale a large amount of bonds has been issued by the defendant, secured by mortgages on the property and franchises purchased at such sale, which bonds are now in the hands of third parties who purchased them for value prior to the commencement of this action, without knowledge of any defect in the title of defendant or its grantor in orto the premises and property covered by said mortgages. The issuing of said bonds and making of said mortgages were matters of public notoriety. The present stockholders of defendant’s road have to a large extent become such since the consolidation, and before the commencement of this action. They and the holders of the defendant’s bonds paid full value for such stock and bonds without knowledge of any defect in the title of defendant or its grantors, or of any claim of the plaintiff to the property involved in this action, and were purchasers in good faith of such stock and bonds.

James J. Belden became a director of the Syracuse Northern Railroad Company June 11, 1872, and its president June 15, 1872. He continued as such president and director until October 22, 1875. The firm of Dennison, Belden & Co., of which he was a member, became stockholders of that road to the amount of $37,000 on June 4, 1872, and continued to be stockholders up to the time of the foreclosure sale. On March 8, 1877, James J. Belden became the owner of $44,900 of the capital stock of the plaintiff, which he still owns. He was a director of the plaintiff from 1877 to 1890, and was its president from 1877 to 1887. A. Caldwell Belden was also a member of the firm of Dennison, Belden & Co. He has been a large stockholder of the plaintiff from March 8, 1877, to the present time. He was a director from 1877 to 1890, and its president from 1887 to 1890.

Since 1872 a steam railroad has been maintained and operated by the Syracuse Northern Railroad Company, its grantees and the defendant, in Marsh street, partly upon that portion which is owned in fee by the plaintiff. From the time the tracks were laid in Marsh street up to the commencement of this action, the Syracuse Northern Railroad Company and its successors have operated the railroad therein without opposition from the city of Syracuse, and it has in various ways recognized the rights of the defendant and its predecessors to operate the railroad in that street, and has consented to such use of the street by the defendant and its predecessors.

The plaintiff made no objection to such use of Marsh street by the defendant and its predecessors for the period of about seventeen years, and until just previous to the commencement of this action, in 1888.

The railroad and switches in that street are lasting, intended for continuous and permanent use, and the defendant threatens and intends to continue to maintain, use and operate said railroad and switches. The defendant’s main track is laid for substantially the whole distance in front of plaintiff's premises, on Marsh street, upon the surface of the street.

This action was commenced December 7, 1888. For seventeen years prior to this action the plaintiff permitted the defendant and its predecessors to occupy and use Marsh street for railroad purposes in the manner it is now used, without objection on the part of the plaintiff, or any attempt to restrain such use, and defendant, its predecessors and grantor, spent large sums of money in the construction and maintenance of the railroad therein.

The trial court found as inferences to be drawn from the facts stated that the plaintiff, in 1873, for a valuable consideration, gave a license to the Syracuse Northern Railroad Company to use Marsh street for its tracks; that that company, its grantees and successors, acted under such license, and made large extensions to their tracks at great expense, upon the faith thereof and relying thereon, to the knowledge of the plaintiff; that the defendant and its predecessors, from the acts and conduct of the plaintiff, bad reason to and did understand and believe, to the knowledge of the plaintiff, that it consented to and acquiesced in the use made by the defendant and its predecessors of Marsh street for railroad purposes, and that in consequence thereof large sums of money were expended by the defendant in the construction of its railroad in Marsh "street, to the plaintiff’s knowledge.

As conclusions of law, the court held that the plaintiff gave the defendant’s predecessor a license to maintain its road in Marsh street, which was acted on by the defendant and its predecessors, and that plaintiff was estopped from denying such license or revoking it; that its acquiesence in the use of Marsh street for seventeen years rendered the plaintiff guilty of such laches as deprived it of the right to maintain this action, and that defendant was entitled to judgment dismissing the complaint, with costs.

The broad questions presented upon this appeal are, first, whether the court was justified by the evidence in finding that the plaintiff gave the defendant or its predecessors any such license to enter upon its premises in this street, and lay and maintain its tracks as was found by the trial court, or as would estop it from claiming its legal rights to the land in question; and, second, whether by its acquiescence in the use of such land for railroad purposes it was guilty of such laches as would deprive it of any right to the equitable relief sought in this action.

The purpose of the action was to restrain the defendant from operating its road upon that portion of Marsh street which was upon the plaintiff’s premises until it should acquire the right to the use of the same, and for damages previously sustained by reason of the defendant’s use and occupation thereof.

It seems to be well settled in this state that the dedication of land to the use of the public as a street or highway does not preclude the owner in fee, subject to the public easement, from maintaining an action against a railroad, which, without his consent or an appraisal of his damages, enters upon and ■occupies such highway with the track of its road. Such an appropriation of the highway by the railroad company is the imposition of an additional burden upon, and a taking of the property of, the owner of the fee, within the meaning of the constitutional provision which forbids such taking without compensation. (Williams v. N. Y. C. R. R. Co., 16 N. Y., 97; Mahon v. N. Y. C. R. R. Co., 24 id., 658; Wager v. Troy Union R. R. Co., 25 id., 526; Craig v. Rochester City & B. R. R. Co., 39 id., 404; Henderson v. N. Y. C. R. R. Co., 78 id., 423.) Where a railroad is unlawfully constructed in a street, the adjacent owner, whose title extends to the center, it would seem has three remedies : 1. He may bring successive suits to recover his damages ; 2. he may bring an action in equity to restrain the operation of the road; or, 3, when the highway has been exclusively appropriated, he may maintain ejectment. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98.) That in cases like this a suit in equity may be maintained to restrain the defendant, from unlawfully using the plaintiff’s land and for damages sustained by such use, is well established by the authorities in this state. Henderson v. N. Y. C. R. R. Co., 78 N. Y., 423; Murdock v. Prospect Park & C. I. R. R. Co., 73 id., 579; Shepard v. Manhattan R. Co., 117 id., 442; 27 St. Rep., 705; Galway v. M. E. R. Co., 128 N. Y., 132; 40 St. Rep., 145; Lynch v. M. E. R. Co., 129 N. Y., 274; 41 St. Rep., 541.

It follows, therefore, that the plaintiff was entitled to the relief sought, and the court erred in dismissing the complaint, unless the plaintiff was estopped from enforcing its right against the defendant, or its acquiescence in the taking and occupation of the land by the defendant and its predecessors, and its laches in not before asserting its rights, have deprived the plaintiff of the right to maintain this suit. This leads to the consideration of those ■questions.

Did the plaintiff perform or omit to perform any act which estopped it from asserting its right as against the defendant or those whose interest it represents ? That the owner of real property may, by a course of conduct which induces other persons to deal with it without informing them of his claim, debar himself from asserting his title to their injury, is a well established principle of the law of estoppel. In Wendell v. Van Rensselaer, 1 Johns. Ch., 344, Chancellor Kent said: “ There is no principle better established in this court, nor one founded on more solid considerations of equity and public utility, than that which declares that if one man knowingly, th'ough he does it passively, by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel."

In the late case of Trustees, etc., v. Smith (118 N. Y., 641; 30 St. Rep., 105), it is said : “ The general rule deduced from all the authorities is that if one is induced to purchase land by the acts or representations of another designed to influence his conduct, and creating a reasonable belief on his pal’t under which he acts that he is -thereby acquiring a valid title to the. same, the party who thus has influenced him is estopped from setting up his own title, existing at the time of the purchase, against that of the purchaser. ”

“ To authorize the finding of an estoppel in pais against the legal owner of land, there must be shown, we think, either actual fraud, or fault or negligence equivalent to fraud on his part, in concealing his title; or that he was silent when the circumstances would impel an honest man to speak; or such actual intervention on his part as to render it just that, as between him and the party acting upon his suggestion, he should bear the loss." Andrews, J., in Trenton Banking Co. v. Duncan, 86 N. Y., 230. “The vital principle (of the doctrine of estoppel in pais) is, that he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood, and the law abhors both. * * * No estoppel can be created by mere silence or acquiescence, unless there are some special circumstances which make it necessary, to speak. * * * The true rule seems to be, and with it goes the later and better considered cases, that, the mere presence of the owner, if he have concealed no fact of which he was informed, and which the purchaser could not have learned by the use of reasonable diligence, will not create an estoppel, unless the purchaser can show that he had reason to suppose, from the presence of the owner, that he sanctioned and acquiesced in the sale. * * * One essential element of every equitable estoppel, by which a man is to be precluded from claiming what is his own, is ignorance on the part of the purchaser or party claiming the benefit of the estoppel as to the true state of the title. To estop a vendor of real estate by statements in regard to the effect of his deed or extent of the grant, such ignorance on the part of the purchaser must concur with knowledge of his title and wilful concealment or misrepresentation in regard to it on the part of the vendor, or such gross negligence or indifference to the rights of others as under the circumstances to be equivalent to actual and premeditated fraud. It must also appear that the language or conduct of such vendor was the direct inducement to the purchase by the other party, and that the purchaser will suffer if the vendor is permitted to deny it." Herinann on Estoppel, §§ 934, 937, 947, .949.

In the present case we find no sufficient evidence to justify the finding that the plaintiff gave the defendant, or its predecessor, any express license to enter upon or construct its road over the lands in question. Nor do we think any such license is to be presumed or implied. It must be assumed, therefore, that the defendant’s predecessor entered upon the premises in question without authority, and was a trespasser in so doing. While it was thus in possession, it gave a mortgage upon all the property and franchises owned by it. That the mortgage in fact covered the land in question is not pretended, unless it was included therein by reason of the maps made by that company and filed June 12, 1871, and August 5, 1872. All that appeared from those maps was, that the line of the railroad in question was laid through Marsh street. We can find in them no evidence that the company had acquired, or even believed it had acquired, the title to the plaintiff’s land over which the tracks were laid, or from which the purchaser at the mortgage sale was justified in believing that the title was in the company, while the record disclosed that it was in the plaintiff. The record was constructive notice to the purchaser of plaintiff’s title, especially as the mortgage referred to the maps, deeds and orders to show what title the railroad company had. Surely no title could be claimed from the mere fact that it appeared upon a map that the railroad was laid on the plaintiff’s land, with no evidence or claim that it had been otherwise acquired. It is, therefore, difficult to see how the purchaser under that mortgage could have supposed or believed that he acquired any title other than that which had been actually conveyed to or acquired by the railroad company that executed the mortgage.

It is, however, claimed by the respondent that, although the railroad company was a trespasser, and the purchaser under the foreclosure sale acquired no legal title by such purchase, still the plaintiff is estopped from asserting its legal title against the defendant because the plaintiff’s officers knew of the foreclosure proceedings at the time, knew that the judgment embraced all the property owned by the railroad company, knew the time and place of the sale, and that all the property of the railroad company was sold under such judgment, but made no claim, and gave no notice of plaintiff’s title to the land until about the time of the commencement of this action. Also because the defendant was a purchaser for value, and had sold its bonds and stock to bona fide holders, who had no knowledge of any defect in the defendant’s title to these premises.

There was, however, no proof that any of the plaintiff’s officers attended the foreclosure sale, or that they knew or understood that either the railroad company or the purchaser was led to believe, or believed, that the property sold included the right of way over the plaintiff’s land. Neither was there any proof that any representation whatever as to such right was made, or that the company sold, or offered for sale, any property or interest save that which was owned by it, or to which it had acquired title by deed, purchase or condemnation. Nor was there any evidence tending to show that the purchaser was in any way deceived or mistaken, or that he did not acquire all the title he supposed he would under such sale, or was not fully apprised of the facts as to plaintiff’s title, or that he relied upon any statement made, or upon the omission of the plaintiff to assert its title in making such purchase.

Under these circumstances, we think it cannot properly be held that the plaintiff was estopped by the transactions attending the mortgage, its foreclosure and the sale under it, from asserting its title to the land in question against the defendant, or any persons that it represents as holders of its bonds or stock.

In New York Rubber Co. v. Rothery (107 N. Y., 310; 12 St. Rep., 53), a riparian owner saw the owner on the opposite side of the stream erecting a factory and digging a race, which she knew would return the water diverted from the stream to a point below her land, and it was held that her omission to object in any way to the proposed diversion of the water did not constitute an estoppel barring an action to recover for such diversion, and the court said : “ To constitute it, the person sought to be estopped must do some act or make some admission with an intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, and which act or admission is inconsistent with the claim he proposes now to make. The other party, too, must have acted upon the strength of such admission or conduct. In cases of silence there must be not only the right, but the duty to speak before a failure so to do can estop the owner."

The same doctrine was considered in the case of Viele v. Judson (82 N. Y., 32), where it was held that to sustain an estoppel because of omission to speak, there must be both the specific opportunity and the apparent duty to speak. The party maintaining silence must have known that some one was relying thereon, and was either acting or about to act as he would not have done if the truth had been told. •

A similar question arose in the case of Leonard v. Spencer (108 N. Y., 338; 13 St. Rep., 653). In that case it was held that the fact that a dam had been maintained a great number of years, and that, with the knowledge of the plaintiff and without objection on his part, the defendants had erected a large factory, in place of a former one destroyed by fire, to be and which was operated by the water drawn from the pond, was not such an acquiescence on his part as precluded him from maintaining the action, at least in the absence of evidence that defendants took some action in reliance1 upon the silence or acquiescence of the plaintiff.

So, in the case of Chapman v. City of Rochester (110 N. Y., 273; 18 St. Rep., 133), where the - defendant constructed a series of sewers which discharged into a creek above the plaintiff’s land, without objection from the plaintiff while the work was progressing, in an action to enjoin the city from polluting the stream' it was held that, in the absence of proof that the plaintiff encouraged the adoption by the defendant of its system of sewerage, or by any act or word induced it to so direct the sewers that the flow from them should reach his premises, plaintiff was not es-topped by acquiescence.

In discussing the doctrine of estoppel in Thompson v. Simpson (128 N. Y., 291; 40 St. Rep., 164), Andrews, J., says: “The owner of property which another has assumed to convey without authority, is not precluded by mere silence from subsequently claiming it. There must, in addition, have been both an occasion and a duty to speak, and it must appear that the omission to speak, upon opportunity being presented, was intentional or in negligent disregard of the plain dictates of conscience and justice. * * * The mere fact that another may act to his prejudice, if the true state of things is not disclosed, does not render silence culpable, and mere inaction in such a case is not sufficient. The true owner owes no duty of active diligence to protect the other party from injury. There,must be a standing by and encouragement, or, at least, an acquiescence, on the part of the true owner in acts inconsistent with his right, knowing that the other party, acting under a false impression, is about to do what will result in his injury. * * * The security of legal titles to real property and the uniform policy of the law require that the doctrine of equitable estoppel, when invoked to bar the assertion of a legal title to land, should be cautiously applied, and only when the grounds for its application are clearly and satisfactorily established."

Mor do we think the plaintiff was estopped from asserting its title to the land owned by it in Marsh street by reason of its sale to the defendant’s predecessor of an adjacent piece to enable it to extend its tracks to other portions of the city. The only fact shown in relation to the transaction,' except the transfer of the land by plaintiff and the use made of it by the purchaser, is that the plaintiff knew when the purchase was made that the purchaser intended to build a railroad across it. This was conceded. These facts are not, we think, sufficient to estop the plaintiff from asserting its title to its lands in Marsh street.

If it be admitted that the land was purchased for the purpose of the extension of the railroad through Franklin street to the tracks of the Mew York Central & Hudson Eiver Eailroad Company, and that the extension would be useless unless the tracks in Marsh street could be used, yet we do not perceive how those facts would estop the plaintiff from claiming its title to its land in Marsh street. Surely the corporation making that purchase knew as well as the plaintiff that it had acquired no right to the land in question by condemnation or otherwise. Mo representations were shown to have been made, and the plaintiff’s silence could not have in any way misled the purchaser. It could have condemned the plaintiff’s land then as it can now. We are unable to discover any principle upon which it can be held that the purchase of this adjacent property in any way estopped the plaintiff from asserting its right to the property in question, nor do we find anything in the authorities cited that would sustain that claim. Hence, we conclude that the plaintiff neither did nor omitted any act which estopped it from asserting its right to the property in question as against the defendant or those whom it represents.

The respondent seeks to uphold the judgment in this case upon the principle that where a party for a valuable consideration grants to another a license to make partial use of his land, under circumstances amounting to an implied contract for an easement, and such license is executed and large sums expended by the licensee upon the faith and credit thereof, to the knowledge of the licensor, and such use continued without opposition for a long period of time on his part, the latter is estopped from asserting his rights by a suit in equity; and cites as sustaining this doctrine the cases of Wiseman v. Lucksinger (84 N.Y., 41); Cronkhite v. Cronkhite (94 id., 323), and various authorities in foreign jurisdictions. The cases in this state do not, we think, uphold the decision and judgment of the court below.

An examination of those cases discloses that no such license or estoppel will be held to exist except under circumstances which would make the assertion of a legal title operate as a fraud upon the persons claiming under such. license or estoppel. The question presented by this contention of the respondent is controlled by the doctrine of equitable estoppel, and as we have already examined that doctrine, so far as it is applicable to the facts in this case, any further consideration of it seems unnecessary.

This brings us to the consideration of the question whether the plaintiff has lost its right to maintain this action by its acquiescence in the use of the land in question by the defendant and its predecessors and its laches in not sooner asserting its rights. The opinion of the trial judge renders it manifest that the ground upon which it was held that the plaintiff could nothnaintain this action was, that the relief asked for was purely equitable and not in aid of or to enforce a legal right. It must be regarded as settled in this state that the doctrine of acquiescence or laches as a defense to an equity action is limited to actions of an equitable nature exclusively, or to those where the legal right has expired or the party has lost his right of property by prescription or adverse possession, and that where a legal right is involved, and upon grounds of equity jurisdiction the courts have been called upon to sustain the legal right, the mere laches of a party, unaccompanied by circumstances amounting to an estoppel, constitute no defense. Galway v. M. E. R. Co., 128 N. Y., 132; 40 St. Rep., 145. The same doctrine is also recognized in Calhoun v. Millard, 121 N. Y., 69; 30 St. Rep., 759; Fullwood v. Fullwood, L. R. (9 Ch. Div.), 176; In re Baker, L. R. (20 Ch. Div.), 230.

We cannot agree with the learned trial judge in his conclusion that this suit was exclusively equitable in its nature. The action was to enforce the existing legal rights of the plaintiff, which had neither expired nor been lost by prescription or adverse possession. The relief sought by “ the injunction of the court and its alternative damages are to be deemed a substitute for the ordinary proceedings for condemnation, with the practical difference only that in one case the company is the moving party and the other the owner.” (Finch, J., in A. B. N. Co. v. N. Y. E. R.. R. Co., 129 N. Y., 270; 41 St. Rep., 531.) We think the plaintiff’s legal rights were clearly involved in this action, and that the mere acquiescence or laches of the plaintiff, not amounting to an estoppel, constitute no defense.

These considerations lead to the conclusion that the trial court erred in dismissing the plaintiff’s complaint, and that the judgment appealed from should be reversed.

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

Hardin, P. J., and Merwin, J., concur.


text:
    In the Matter of the Application of The Board of Public Works of the City of Watertown to take lands. Sterling A. Willard et al., App’lts, v. The Board of Public Works, Richard G. Keyes et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    Condemnation proceedings — Streets—Laws 1891, chap. 180.
    Chapter 180, Laws of 1891, which provides for the establishment of a hoard of public works in the city of Watertown, vests in such board the sole power to open streets and take lands for that purpose.
    Appeal from an order entered in Jefferson county May 14, 1892, confirming the report of commissioners appointed to ascertain and assess the damages caused by the taking of land for the opening of Clay street in the city of Watertown. No appeal was taken from the order appointing such commissioners, nor is there any statement in the notice of appeal from the final order of condemnation that the appellants intended to bring up such order for review, as provided by § 1301 of the Code of Civil Procedure.
    On September 7, 1891, the board of public works of the city of Watertown passed a resolution setting forth that an application had been made to open Clay street from Academy street to Keyes avenue; that in the judgment of the board such extension should be made, and directing the city engineer and surveyor to prepare a map, profile and description of the land necessary to be taken for that purpose. On September 21, 1891, such map being presented and filed, a further resolution was passed by the board that Clay street be extended and opened; that the land described therein he appropriated for that purpose; that notice be given as required by the charter to all persons interested in the land taken to file their claims for damages with, the chamberlain of the city before October 3, 1891; that in case any claim was filed an application would be made to the county court of Jefferson county on the 25th of November, 1891, for the appointment of three commissioners to ascertain the damages as claimed, and directing the city attorney to take such legal steps as might be required to carry such resolution into effect. Claims were filed by Henry Court and Sarah Court. On November 25, 1891, the county court of Jefferson county made an order appointing three commissioners to assess the damages caused by-opening such street. The commissioners thus appointed took the oath of office, fixed the time and place of their meeting and gave notice of the same as required by law. At the time and place so appointed, and on subsequent days to which the proceedings were adjourned, the commissioners viewed the premises and heard the proofs and allegations of the parties.
    On January 23, 1892, they duly made a report of their proceedings, and the same was filed in the office of the chamberlain of said city. Notice was given of the filing of the report, that it might be examined by all persons interested, that all persons desiring to object thereto should file their objections in writing with the city chamberlain before the 23rd of April, 1891, and that on that day such report would be presented at the special term of this court for confirmation. Objections were filed to the report. Upon such report, the testimony taken by said commissioners, objections to the report, the affidavits of E. C. Emerson, Sterling A. Willard, J. B. Wise, W. W. Conde, 0. E. Brown and Norris Winslow, and upon all the papers and proceedings had, and after hearing counsel in favor of the confirmation of such report, and counsel in opposition thereto, an order was made in all things approving and confirming such report.
    E. C. Emerson, for app’lts; John N. Carlisle, for resp’t, city of Watertown; Watson M. Rogers, for other resp’ts.
   Martin, J.

The determination of the special term, from which this appeal is taken, is sought to be reversed upon the ground that under the charter of the city of Watertown the power to open streets and take lands for that purpose is vested solely in the common council, and not in the board of public works, and, therefore, that the proceedings in this case were void for want of jurisdiction. Hence, the first question to be determined upon this appeal is whether such power is vested in the board of public works.

The determination of this question is dependent upon the construction of § 9, chap. 180 of the Laws of 1891, entitled “An act to establish a board of public works in the city of Watertown.” To a proper understanding of the intent of the legislature, it is, perhaps, necessary to examine the statutes relating to the subject as they existed at the time the act of 1891 was passed.

The city of Watertown was incorporated by an act of the legislature, passed May 8, 1869. (Laws 1869, chap. 714.) Title 7 of that act provided for the care of the streets, highways, bridges and public improvements of the city. ■ That title, as it was amended by chap. 162 of the Laws of 1886, declared: “The common council shall have the power to perform the duties and be subject to the liabilities of commissioners of highways in towns, with the exceptions and modifications contained in this act; the common council shall have full power and authority, by order, recorded in the city records, to lay out, open, make, mend, build, repair, alter, widen, construct, straighten, extend or discontinue streets, lanes, public squares, alleys and highways, walks, bridges, drains and sewers in the city, whenever they shall deem the public good to require it.”

It then provided the manner of laying out such streets and highways, how the damages should be assessed and collected, and specified in detail the procedure to be adopted.

While the law stood thus, the act of 1891 was passed, providing for the appointment of four commissioners, to be known as the commissioners of public works of the city of Watertown. It then provided : “ Sec. 9. The said board shall have all the powers and discharge all the duties of commissioners of highways of towns, as given by and with the exceptions and modifications contained in an act entitled ‘An act to incorporate the city of Watertown,’ passed May eighth, eighteen hundred and sixty-nine, and the several acts supplemental thereto and amendatory thereof. They shall have the exclusive control of the construction, improvement, repair and cleaning of streets, highways, alleys, avenues, gutters, sewers, culverts, sidewalks, crosswalks, parks and bridges; of the sprinkling of the streets; of the paving of the streets, and of the purchase of supplies and materials therefor. This provision shall not be construed as transferring to said board the power conferred on the mayor and common council to grant the right of use of streets by railroad corporations, and prescribing conditions thereof.” It also provides: “The board may make such rulés and regulations as it may deem best * * * for the manner of excavating and opening of any of the streets and highways of said city.” (Sec. 15.)

While the language of the statute of 1891 is inapt and ambiguous, so far as it relates to the question before us, yet, when we consider the then existing statutes and the various provisions of that statute, we are led to believe that the legislature intended to transfer the powers and duties that were conferred upon the common. council by title seven of the charter to the board of public works, including the power to lay out streets and highways therein, and that the procedure therein provided should be pursued by the board in exercising these powers and in performing these duties.

It will be observed that § 9 confers upon the board all the powers, and imposes upon it all the duties “ of commissioners of highways of towns, as given by and with the exceptions and modifications contained ” in the charter of the city as amended.

When we turn to the charter, we find that no powers are granted or duties imposed upon commissioners of highways of towns, as such, but find that the common council is given the power to perform the duties, and is made subject to the liabilities of commissioners of highways in towns with certain exceptions and modifications contained in that act, and that full power and authority is conferred upon the council to lay out and open streets and highways in.the city. The only commissioners of highways mentioned in the act incorporating the city to whom any powers are granted, or upon whom any duties are imposed, is "the common council. It was to the common council as commissioners of highways of the- city, and to the powers that were given to the council by the charter, that the legislature referred in § 9. That the legislature intended to confer upon the board of public works substantially the same powers and duties as were previously given and imposed upon the common council, is also indicated by the provision that the first two sentences of § 9 should not bo construed as transferring to the board the power conferred upon the mayor and common council to grant the right of use of streets by railroad corporations. This exception, we think, discloses that it was the purpose of the legislature to confer upon the board of public works all the duties and powers that had previously rested in the common council in relation to the streets and highways of the city, except in the particular mentioned.

Moreover, if it was the intent of this statute to vest in the board of public works only the powers possessed by commissioners of highways of towns, which includes the power to lay out highways, and that the power vested in the common council in that respect should remain, it would follow that the board and council would have concurrent power to lay out and discontinue highways in the city. If such was the law, much confusion would arise and a conflict between the board and council would be liable to occur. That the legislature intended to vest such concurrent power in the board and council, when it must have been manifest that conflict and confusion might be the result, we cannot believe.

We think the court properly held that the board of public works had power to lay out the street in question, and that the order appealed from should not be reversed upon the ground that such power rested in the common council.

If we are correct in this conclusion, it is at least doubtful if the other questions raised by the appellants as to the form of the report of the commissioners, and their method of apportioning the damages, are the subject of review on this appeal. The statute which prescribed the mode of procedure in laying out a street or highway in the city of Watertown declares that if the court confirms the determination and assessment of the commissioners, it shall be final and conclusive,” thus plainly indicating the intention of the legislature that every question connected with the determination and assessment should be finally determined by the court making such order of confirmation. Matter of Com. of C. P., 50 N. Y., 493; People ex rel. S. & U. H. R. R. Co. v. Betts, 55 id., 600; Matter of D. & H. C. Co., 69 id., 211; Matter of P. P. & C. I. R. R. Co., 85 id., 489.

But be that as it may, we think the order should be affirmed, as we have examined the other questions raised by the appellants, and have found no reason to disturb the decision of the special term.

We are of the opinion that the board of public works had jurisdiction to lay out the street in question, that the proceedings were valid, and that the order appealed from should be affirmed.

Order affirmed, with one bill of costs on this .appeal to be paid by the appellants.

Hardin, P. J., and Merwin, J., concur.


author: Barnard, P. J.

text:
    George Gerbig, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Master and servant — Negligence—Evidence.
    In an action for injuries to a servant while loading coal from a bin by the giving way of the partition, where it is shown that the timber, hemlock, of which it was constructed, was commonly used for that purpose, it is error to permit a question calling for the opinion of a witness as to whether hemlock was a proper material for that purpose.
    2. Same.
    So, also, as to whether the braces or anchors were sufficient to hold the crib-work.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Lewis E. Carr, for app’lt; Arthur S. Tompkins, for resp’t.
   Barnard, P. J.

The plaintiff on the 27th day of November, 1891, was injured by the giving away of a partition by which a great mass of coal was thrown upon him. He was an employe of the defendant and was loading coal from a bin on the pier at Piermont. After the coal in the bin in which he was working had been partially removed, the partition between this bin and the next one east gave away, causing the accident. The partition was constructed with hemlock timber. The partition and bins were constructed in the usual way and there was no objection that the accident was caused by an unsafe or faulty plan. Proof was given tending to show that the timber, hemlock, was such as is commonly used for that purpose. Under this state of the evidence it was improper to permit this question:

“ Yon have made cribs or bins or partitions to hold quantities of coal, fifty or a hundred times. Is hemlock a proper material for that purpose ? The question was objected to and admitted under defendant’s exception. The answer was as follows. Well, it depends altogether on how you use it. If you use hemlock alone it is not worth much ; but where I have built bins, we take posts of chestnut and then board them up ; well, the posts hold certainly; the hemlock is just to keep the coal from running in through the posts.
“Would the hemlock alone be sufficient to support? Same objection and ruling and exception as before.
“ No, it would not.”

It was error to permit the question of the sufficiency of the anchors. It was proven that braces of timber were connected with the partition and run into the next bin so that the weight of the coal in that bin, when it was filled, would hold, by means of these braces or anchors to the partition; the coal being filled in these braces and holding them by its weight. A question was received under defendant’s exceptions that they were not sufficient to hold the crib work. ^ The court of appeals in a recent case has examined the admissibility of such testimonv in the case of Roberts v. N. Y. Elevated R. R. Co., 128 N. Y., 455; 40 St. Rep., 454. Under that case these questions were not proper as exceptions to the general rule of evidence that testimonv should consist of facts and not opinions; that whenever opinions are admitted it is in cases where the facts are not descriptive, and cannot intelligently be communicated to others. Van Wycklen v. City of Brooklyn, 118 N. Y., 424; 29 St. Rep., 790.

It is not, therefore, necessary to examine the question whether the proof established a case of negligence on the part of the defendant under all the proof as it was given, and assuming this evidence to have been properly received; a new trial may change it

The judgment and order denying new trial should be reversed and a new trial granted, costs to abide event Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    Katharine C. Ferris, Resp’t, v. Mary C. D. Fisher et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Res adjudicata — Evidence.
    It is no objection to the admission of a judgment in a former action between the parties involving' the issues in question, that the testimony on which the first action was determined is not shown.
    2. ' Same — Default.
    Nor is it any objection that such judgment was taken by default.
    S. Same — Judgment.
    Where the judgment roll in such action has been admitted in evidence, the objection that it was not shown that final judgment had been rendered in that action cannot be taken for the first time on appeal.
    4. Same — Pleading.
    A judgment in a former action between the parties in relation to other property may be introduced in evidence by plaintiff in support of his case without pleading it.
    Appeal from an interlocutory judgment in favor of plaintiff. Action of partition.

      Martin J. Keogh, for app’lts; Wilson Brown, Jr. (Isaac N. Mills, of counsel), for resp’t.
   Pratt, J.

This action is brought for the partition of certain lands formerly held by Eliza H. Fisher. The complaint sets up a will and codicil made by said Eliza, and avers they were executed by her solely by reason of undue influence and while mentally incompetent to make a will. These allegations are denied by the answer.

Upon the trial, the plaintiffs were allowed to put in evidence the record of a former action in partition between the same parties, but concerning other property, in which it was determined that Mrs. Fisher, at the time she made the codicil now in question, was of unsound mind, and that the codicil was, therefore, void.

The testimony taken upon the first trial is not shown, and it appears from the record of that action that when the cause was called for trial the defendants sought a postponement, which was refused by the court, whereupon an inquest was taken, the defendants not opposing further.

The findings were in the form usual in partition, reciting the determinations of law and fact, establishing the rights of the parties, and directing a sale of the property.

The appellants now claim that admitting the record was error; that a judgment by default is not evidence in a subsequent action; that the testimony upon which it was rendered should have been shown, and that there is no proof that final judgment was entered upon the findings.

That the testimony is not shown upon which the first action was determined is clearly no objection to the admission of the record. The reason why a record of a former judgment is admitted as evidence is that parties may not be burdened with proving the facts a second time. If the testimony upon which a judgment went must again be produced, a principal benefit of the rule of res adjudicata would be lost.

Nor is it any objection that the judgment was taken upon default. The inference to be drawn from a failure to prove a defense is that no defense exists.

The plaintiff who brings a suit may reasonably expect to settle the facts in that action, [f a defendant, by refusing to answer, could deprive the plaintiff of the benefits of his action it would be apt to work injustice.

To the suggestion now made that a final judgment is not shown to have been rendered in the first action, it may be answered that the objection is late. When the record was offered, it seems to have been assumed by counsel and the court that judgment had been entered. The case recites that plaintiff put in evidence “judgment roll” in action No. 1 ; that the “ judgment roll ” was marked as an exhibit. Then follows the admission by counsel that “ the judgment in action No. 1 was taken upon default, as appears from the judgment roll itself.” And at defendants’ request the court finds that “ the judgment ” in action No. 1 was taken by default.

If we are to give language its ordinary significance, we must consider that the entry of judgment was tacitly, if not expressly, conceded.

Now, we are asked to assume on appeal that no judgment, has been entered.

If defendants intended to require more proof that the final judgment had been entered, the attention of counsel and court should have been called to the supposed defect in evidence. If it be that the evidence is deficient in that respect, we think the defect was waived.

The appellants also object that the former judgment not being pleaded could not be admitted in evidence, and cite authorities that where a former adjudication is relied on as a “bar” it must be pleaded, or it is hot admissible.

Had there been a previous determination between the parties of their rights in the property now in suit, that would be “ defense ” or “ bar ” to this action. Like other defenses that would require to be pleaded; like other defenses, if not pleaded, it could not, if objected to, be proved.

•In the present case defendants have not pleaded that any previous determination has been had of the rights of the parties in this property. On the contrary, it is admitted that the previous litigation concerned other property. The record was not offered; in “ bar ” of this suit, but in its support. To plead evidence is contrary to the present rules. The plaintiff pleaded that the codicil in question was executed by the testator when of unsound mind, and was, therefore, void; and proved that allegation by producing the record wherein it had been so adjudged in a previous action between the parties. When received in evidence it was conclusive.

Judgment affirmed, with costs.

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


text:
    Gottlob Gunther, Pl’ff, v. Rudolph Mayer et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Corporations — Mortgage.
    At a meeting of a corporation the stockholders voted to give a mortgage to secure bonds to secure a debt to a bank for moneys had and future loans. The bonds were issued and given to the bank, but the mortgage was not executed until after the corporation became insolvent. Held, that the mortgage was valid and was not in violation of the statute prohibiting corporations from making assignments in contemplation of insolvency.
    Appeal by the defendants, the Holland Trust Co. and Twelfth Ward Bank, from order confirming report of referee in surplus proceedings, holding void a trust mortgage held by said defendant trust company. On foreclosure of a first mortgage against property of the Vertical Tube Boiler Co. there was a surplus of' $7,000, which was claimed by the trust company under its mortgage. The referee, however, adjudged said mortgage void, and awarded said surplus to judgment creditors and the receiver of said corporation.

      George M. Van Hoesen (William N. Dykman, of counsel), for app’lt, Holland Trust Co.; Joseph F. Stier (Frederic J. Swift, of counsel), for app’lt, Twelfth Ward Bank; P. Q. Eckerson, for resp'ts.
   Barnard, P. J.

The Vertical Tube Boiler Company, a domestic corporation, executed a mortgage to the Holland Trust Company upon its lands in Queens county to secure $75,000. This amount was represented by seventy-five bonds of $1,000 each. The Holland Company was simply a trustee. The mortgage is a first record lien on the surplus money in question, but it was given when the tube company was insolvent and in contemplation of insolvency, and is, therefore, void. The trust company and a creditor holding some of the bonds seek to escape this result by proof that the mortgage was given under an agreement to execute the same at a time long prior to the insolvency ; that money was acquired under the agreement, and that, thereupon, the mortgage was not in contravention of the statute. Paulding v. The Chrome, etc, Co., 94 N. Y., 334.

The referee has found against the agreement, and the only question is whether the finding is supported by the evidence. It appears that the tube company in April, 1888, had an account with the Twelfth Ward Bank in the city of New York. That then the tube compañy borrowed money of the bank. During the year 1888 notes were given and renewed, and in March or April, 1889, it was agreed by the president and treasurer of the tube company and the president of the bank that security must or should be given to secure the existing debt and all future advances, and that a meeting of the tube company should be called to consider the subject, which meeting met on April 5, 1889. The meeting resolved to give a mortgage for $75,000 to a trust company to secure bonds in that amount. The bonds were soon thereafter drawn, but the drawing of the mortgage was delayed by the attorney until October, 1890, when the company was insolvent. The bonds were not signed by the treasurer of the tube company until September or October, 1889. The whole issues were delivered as collateral security to the Twelfth Ward Bank. Forty-five thousand of these are still held by the bank and thirty thousand by the trust company. No question can be made as to the authority of the parties who contracted for the security in the spring of 1889. The president and secretary represented the tube company and the President Steers represented the bank. The negotiations were initiatory only, and the tube company voted the security and the requisite number of stockholders approved the vote. The bank received the bonds with the official approval of the tube company written thereon and received them at once when printed, long before the mortgage was given. It is immaterial whether the money on them was to be raised by selling the bonds by the bank and paying their debt out of it or not. The security was voted to pay, the bank debt and the bond which recites the agreement was at once delivered to the bank, and an agreement to give a mortgage to a naked trustee was an agreement in equity to give the mortgage for the security of the persons who held the debt The trustee’s signature was not at all vital under the circumstances presented by the case. The tube company delivered the bonds as good bonds and the approval of the trustee could cover at any time thereafter.

The order should be reversed and the motion to confirm referee’s report denied, and the surplus ordered to be paid to the Holland Trust Company, with costs to appellant out of fund.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    Oscar Miersch, Resp’t, v. Felix C. Bivin, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Landlord and tenant — Proof of relation — When a question for jury.
    The owner of certain property conveyed the same, reserving the use thereof for life and agreeing to pay taxes and insurance, and afterwards conveyed his life estate to one who leased the same to plaintiff. Plaintiff claimed to have leased the property to defendant for the remainder of his term. In an action for rent defendant testified that he bought the premises of the owner of the fee and went into possession under her, and that she was in possession at the time. He also offered to prove that the life tenant had failed to pay the taxes and insurance and had committed waste, which was excluded. Held, that there was an issue of fact for the jury, and that a direction of a verdict for the plaintiff was error.

      Appeal from judgment in favor of plaintiff, entered upon a verdict directed by the court.
    Action to recover rent of farm claimed to have been rented by plaintiff to defendant.

      Eugene B. Travis, for app’lt; Clayton Ryder, for resp’t.
   Barnard, P. J.

Henry R. Baldwin rented to the plaintiff a farm of thirty acres in Carmel, Putnam county, for one year from the 15th day of January, 1890, at the yearly rent of $350 payable monthly. On the 8th of October, 1887, the farm belonged to one Henry S. Baldwin and he, on that day, conveyed the title to Laura Baldwin, reserving a life estate to himself, the grantor, therein. On the 10th of February, 1888, Henry S. Baldwin conveyed this life estate to Henry R. Baldwin. It will be seen from these facts that when the plaintiff took his lease, Henry R. Baldwin owned the right to use the farm during the life of Henry S. Baldwin. The plaintiff gave evidence tending to show that he leased the property to defendant for the remainder of his term at the same rent he was to pay his landlord, Henry R. Baldwin, therefor, and that the defendant agreed to pay the same to plaintiff and entered into possession under that agreement. The defendant denies this agreement and gives evidence to the effect that he bought the property of Laura Baldwin and entered into possession in May, 1890, under an agreement to purchase of Laura Baldwin. That Laura Baldwin was in possession before the defendant entered and that she delivered possession of the premises to him. This made an issue of fact for the jury.

The plaintiff was bound to prove the conventional relation of landlord and tenant between himself and the defendant, and he gave plain and apparently convincing evidence that there was such a relation created by the act of the parties. The defendant gave equally clear and apparently convincing testimony to the contrary, and further, that he toolc possession under a contract to purchase from an owner of the fee in possession and that no such relation of landlord and tenant existed between the parties. It is not clear that Laura Baldwin did not have the right of re-entry. As the case stands, proof that the life estate had not paid taxes and insured the property, as bound by the- clause reserving the life estate was offered and excluded. At all events, the defendant, on his theory, was not plaintiff’s tenant and was bound to acknowledge his own lease. Tilyou v. Reynolds, 108 N. Y., 558; 13 St. Rep., 853.

There should be a new trial, with costs to abide event.

Pratt, J., concurs; Dykman, J.,. not sitting.