text:
    JOHN E. ANDREW and BENJAMIN T. KISSAM, Executors, etc., of GEORGE W. COSTER, Deceased, Appellants, v. THE NEW JERSEY STEAMBOAT COMPANY, Respondent.

      Action to proawe equitable relief— when it may be sustained as an action at law.

    The plaintiffs brought this action as owners of two-tenths of a steamboat. The complaint alleged that the defendant had purchased the other eight-tenths, and that the boat was to have been delivered to the defendant in the fall; that before that time the boat ran upon a rock and was sunk; that it could have been raised and repaired at a cost not to exceed $5,500; that defendant took from her portions of her engine, rods, joiner work, state-room glasses and mattresses, and used them in the construction of a new boat, and sold the residue of the old one. The relief demanded was that the plaintiffs might be declared entitled to an interest in the new boat, upon contributing what might be equitably due from them.
    Upon the trial it appeared that the portions of the old boat used in the construction of the new one formed but a small portion of the latter. The referee held that the plaintiffs had failed to establish any interest in the new boat, and dismissed the complaint. Held,

    That the referee rightly held that the plaintiffs had no interest in the new boat.
    That, as it appeared from the complaint and the evidence upon the trial that the defendant had wrongfully converted to its own use the plaintiffs’ interest in the old boat, the action should have been continued as an action at law to recover the damages sustained by the plaintiffs therein.

      Semble, That the General Term may direct the entry of such a judgment as it appears from the evidence a party is entitled to recover, only in cases where the facts establishing that right have all been found. It has no power to determine such facts upon conflicting evidence.
    Appeal from a judgment in favor of tbe defendant, entered on tbe report of a referee.

      E. O. Benedict, for tbe appellants.

      Ohamles Jones, for tbe respondent.
   Daniels, J.:

Tbis action was commenced by Jobn E. Andrew and George W. Coster, as owners of two-tentbs of tbe steamboat named Erancis SMddy. During its pendency George W. Coster departed tbis life, and the action was afterwards revived as to his interest, and continued by his executors with the surviving plaintiff. Its ostensible object was to establish their title to an interest in the steamboat Dean Richmond, which had been in part constructed and furnished with articles and furniture taken from the Francis Skiddy. It appeared that the defendant had entered into a contract with The New Jersey Steam Navigation Company, which was the owner of eight-tenths of that steamboat, for the purchase of that interest.

By the terms of the purchase, the boat was to be delivered to the defendant at the end of the season of navigation, in the year 1864. But before the arrival of that period, she was run upon a rock in the upper portion of the Hudson river, and in consequence of the injury received from that cause, she sank. It appeared, however, that she could have been raised and repaired for $5,000, or $5,500, but no effort was made to do that. The defendant, on the contrary, concluded to build another steamer, which it afterwards did, and called it the Dean Richmond. And in building her, it used a portion of the engine, rods, joiner work, state-room glasses and mattresses of the steamboat Francis Skiddy, which it had taken possession of under the contract for her purchase, and it sold the residue of that steamer. The articles used did not form a very considerable portion of the new steamboat Dean Richmond, which was a very large and valuable boat. For that reason the referee held that the action could not be maintained as one that had been brought for establishing the title of the plaintiffs as part owners of the steamboat Dean Richmond, and he directed the complaint to be dismissed. In this conclusion he was probably right. For merely using a portion of the plaintiff’s property in the construction of the new steamboat, chiefly built with other materials, in which they owned no interest whatever, would not entitle them to be deemed part owners of her. The authorities have not sanctioned so extended a right even in favor of the owner, whose property has been wrongfully taken and made a part of an entirely different thing, constituting the principal. (Brown v. Sax, 7 Cow., 95.) Where that appears to have been the disposition made, the owner is necessarily limited to the value of the property owned by him, which may have been improperly taken, and by the use made of it, has become incorporated in the article newly produced. In that way a transition is made of it, through wbieb it becomes an incidental portion only of an entirely different thing, and for that reason incapable of itself of being reclaimed, and creating no title to that to which it has been affixed. The law upon this subject has been fully and thoroughly discussed by the courts, but in no case has the right of the owner of the articles taken been so far extended as to sanction tbe claim preferred by the plaintiffs in this instance. (Silsbury v. McCoon, 6 Hill, 425; 4 Denio, 332; 3 Com., 379.)

But the complaint of the plaintiff should not for that reason have been, as it was, dismissed. If they could not maintain their right as part owners of the steamboat Dean Richmond, that failure did not deprive them of the right to be compensated for the value of their interest in the portions of the Francis Skiddy, which had been used in constructing and furnishing her. As to that the defendant, by its answer, offered to pay the plaintiffs, and in no way denied their right to compensation to that extent. And in view of that offer the plaintiffs could not lawfully be deprived of that measure of relief. That, as the pleadings on both sides had been framed, was treated as a proper subject of equitable cognizance, and redress should certainly, for that reason, have been to that extent awarded.

But it appeared in the case that the residue of the Francis Skiddy had been sold and disposed of by the defendant; and that, under the circumstances, established a conversion of the plaintiffs’ interest in her. The parties owned her as tenants in common, and either a sale or destruction of personal property owned in that way, by one of the joint owners, will be sufficient to entitle the other owners to maintain an action for the recovery of the value of their interest in the thing converted. (2 Hill, on Torts, 425-428.)

But it has been objected that the plaintiffs deprived themselves of the right to that redress, by what transpired at the close of the trial before the referee. A motion was then made for the dismissal of the complaint because the plaintiffs did not appear entitled to the relief demanded, or any equitable relief. But it was accompanied with the offer, if they so- elected, to have the action considered a common-law action, and to have it determined as such by the referee. The case states that the plaintiffs declined so to elect, “ and claimed that they were entitled to such relief, legal or equitable, as the referee might deem them entitled to under the pleadings and proofs in the case.” This was not an entire rejection of the offer which had been made, but a qualified acceptance of it. In substance it asserted the right to the equitable relief expected to be seemed by the action, as one of an equitable nature, but if the referee held otherwise, then that the plaintiffs should be adjudged such other relief as they could lawfully obtain under the pleadings and proofs in the action. And, according to the opinion delivered by the referee on the final disposition of the case, he understood that to be their position. That was the point to which his consideration was ultimately directed. And it was only because the action, in his judgment, could not be maintained as one dependent upon equitable principles, that he directed the complaint to be dismissed. The same thing is evident from the report which was made in the case. For that states as the reasons why the complaint should be dismissed the facts, that the plaintiffs were not entitled to the specific equitable relief demanded by their complaint, and were not joint owners with the defendant of the steamboat Dean Richmond. That they were not entitled to recover anything upon any view of the facts proven was in no way intimated. And it could not properly have been when the evidence was found to have established the fact, that a valuable portion of the property in which they owned a common interest had been appropriated by the defendant to the construction of the new boat. And with the further fact shown that the rest of the Francis SMddy which had been received, had been sold by the defendant, a right to recover for a wrongful conversion of their property, was clearly made out by the plaintiffs.

That, however, was not allowed to prevail, because the action had been brought according to the forms adapted to relief in courts of equity. And the defendant has endeavored to justify the direction given by the referee, by reason of that circumstance. But the fact that the complaint was framed on the theory of redress in equity, did not of itself justify the result which was reached in the case. For when claims both legal and equitable arise out of .the same transactions, as they very clearly did in this case, the Code has allowed both to be prosecuted in the same action. (Code, § 161.) And as the defendant had interposed an answer to the complaint, the right to relief was not restricted to that which the plaintiffs had, in terms, demanded. In that event, it has been provided that any relief may be adjudged consistent with the case made by the complaint and embraced within the issue. (Id., § 215.) The case made by the complaint depends upon the facts which have been alleged. And if they establish the right to redress in any form, it is within the issue joined and must be awarded by the court before which the trial may be had, if the evidence shall be found sufficient for the purpose. Nothing inconsistent with the existence of that right was held either in Bradley v. Aldrich (40 N. Y., 504) or Arnold v. Angell (62 id., 508). In the first of these cases the facts were not alleged upon which any recovery at law was justifiable. And the other was considered to be a failure of proof, because the case made b.y the evidence was not within the issue.

The statute has prescribed what shall be done, and that is, that the plaintiff may have such relief as shall be consistent with the complaint. In the present instance the facts were averred that the plaintiffs owned two-tenths of the steamboat Francis Skiddy, and that the defendant used her engine, apparel, furniture, iron rods, bolts, joiner work and every part thereof, so far as the same could be adapted to the model of the new boat, in the construction thereof, and that the balance of said Francis Skiddy was sold by the defendant, or otherwise converted to its own use, and -the proceeds applied to the construction of the new boat. These averments were sufficient to present a case for the unlawful conversion of the plaintiff’s property. And they were not deprived of their significance in that respect because such other allegations, were united with them as made out an equitable case in the plaintiffs’ favor. It was still within the issue that the defendant had, by its own wrong, converted property owned by the plaintiffs. The fact was distinctly charged and the defendant could not have been misled to its prejudice, even if it had been required to meet that charge by reserving the action for its subsequent trial.

That was one of the objects, designed to be secured by these provisions of the Code. It had long been the source of legal scandal that a party presenting a perfectly just case had often been turned out of the tribunal to which he applied for redress, because it was not adapted to its own forms of proceeding. In that manner, signal instances of great injustice had arisen. Actual right was subordinated to matters of form. And to avoid the continuance of that practice, it was provided, that both legal and equitable relief might be pursued in the same action when it depended upon the same facts, and that the court should award any relief consistent with the case made by the complaint and embraced within the issue joined, in the judgment required to be given. The case presented by the complaint was not made out by artistic allegations, but still the facts were contained in it. For it did appear from it, that the plaintiffs had a clear legal right to be paid for their interests in the Skiddy, on account of the disposition which it was stated the defendant had made of it. That was a legal cause of action, and it was not deprived of that character by the additional allegations, which were added for the purpose of showing that relief in equity could be consistently adjudged. These allegations were not maintained by the evidence, but the others were, and that was enough to entitle the plaintiffs to recover either before the referee or a jury to which the case could have been lawfully and properly ordered for trial. If that cannot be done, it is evident that a complete right to substantial redress may be wholly sacrificed to a mere formal defect in the mode of presenting the case by the complaint; and it was one of the objects of the present system of practice to prevent that from being done. It was claimed, in support of the appeal, that this court has been empowered to.direct the entry of such a judgment, as the plaintiffs might appear from the evidence to be entitled to recover. If the facts establishing the right had all been found, that might be done. But this court has not been invested with the power to determine upon conflicting evidence what facts shall be deemed to have been proven, when that has not been settled by the tribunal hearing and deciding the case. The preceding practice in equity did allow that course to be taken by the appellate tribunal; but the theory of the present system of practice is different. That must now be done by the tribunal seeing and hearing the witnesses, which, on that account, is much better qualified to pass upon, and correctly determine the effect of their evidence than an appellate tribunal can by any possibility be. In this case a very decided controversy existed as to the value of the plaintiffs’ interest in the Skiddy after she had stranded. Their evidence tended to show it to be large; while that which was given on the part of the defendants had a tendency to justify a different conclusion.

Which was right was a matter left undecided by the referee; and this court, certainly, has no power whatever to complete the case by making that determination for itself. The most that was shown, beyond controversy was that the plaintiffs were entitled to recover something, because of the wrongs which they had been made to suffer from the acts of the defendant. But the extent of this right was in such a degree of conflict as to be incapable of being satisfactorily settled by any tribunal, deprived of the power of seeing as well as hearing the witnesses who testified concerning it. Under the offer which was made at the close of the proof by the defendant, and the position taken in the case by the plaintiffs, that ought to have been decided by the referee. What then transpired conferred upon him full power to decide the action, as one dependent wholly upon legal, as distinguishable from equitable remedies; but that he declined to do. And he erred in his determination upon this subject as he also did in declining to award the redress, which -the answer conceded to the plaintiffs by the offer it contained.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    AUSTIN BALDWIN and others, Respondents, v. THE LIVERPOOL AND GREAT WESTERN STEAM COMPANY (limited), Appellant.

      Pa/yment, under protest, of chan'ges made by a common ctwri&r — contract of carrier — Misrepresentation as to nature of freight — Fraudulent concealment.

    The plaintiffs, who are forwarders and common carriers, received in New York from the Atlantic and Great Western Railroad Company two boxes addressed, and to be delivered, to a banker in Liverpool, and, upon inquiry, were informed that they contained incomplete bonds of no commercial value beyond that of the paper, printing, etc. The plaintiffs delivered them to the defendant without any representations on their part, or any inquiries on the part of the defendant as to their contents. The form and appearance of the boxes were not such as to mislead the defendant, and there was no deception practiced. Upon the arrival of the boxes at Liverpool, it was found that they contained $2,000,000 worth of bonds, executed and ready for delivery. The defendant refused to deliver the boxes until an additional charge of £200 sterling was paid for their transportation. In an action to recover this amount, held, that, as no artifice was resorted to, and no representation made to deceive the agents of the defendant, it was bound to inquire of the shippers, if it desired to ascertain the contents of the boxes; and having failed so to do, it must abide by its contract as to the freight charges to be received thereon.
    Appeal from a judgment in favor of plaintiff, entered on tbe report of a referee.

      George O. Holt, for tbe appellant.

      Cha/rles M. Ha Costa and William H. Hoes, for tbe respondents.
   Daniels, J.:

Tbe plaintiffs prosecuted tbis action for tbe recovery of additional freight, amounting to tbe sum of £200 sterling, paid upon tbe transportation and delivery of two boxes of undelivered bonds of tbe Atlantic and Great Westem Railway Company. Tbe bonds were taken on board tbe defendant’s steamer, Colorado, at tbe city of New York, and carried by it to Liverpool. There, after tbe delivery of one of tbe boxes, tbe other was opened and discovered to contain bonds, completed in form, of tbe railway company. Tbe defendant then detained it until tbe additional freight claimed was paid, and payment was made of it by tbe agents of tbe plaintiffs under protest, for tbe sole purpose of procuring possession of tbe box and its contents. That, as tbe law stands, was sufficient to sustain tbis action, in case tbe additional freight was illegally exacted. (Harmomy v. Bingham, 2 Kern., 99.)

Tbe boxes containing tbe bonds were delivered by tbe railway company to tbe plaintiffs as carriers, and represented to be simply printed sheets of incomplete bonds, that were of no commercial value, whatsoever, beyond tbe value of tbe paper, stamps and printing. And if they were lost, tbe cost of their reproduction would be in tbe neighborhood of tbe sum named as their value, which one witness thought was about $5,000. Upon that understanding the plaintiffs received them, and afterwards delivered them to the defendant. But there was no evidence showing that any representations, as to the contents of the boxes, were made to the agents of the defendant. They were examined upon the subject, but neither of them had any recollection of what had transpired when the boxes were received. And they did not appear to have been packed in such a manner as to create any false impression as to their contents. The receipts taken for the boxes were not produced, but were affirmed by the plaintiffs to have been lost. The defendant produced a stub, written in its receipt-book, stating that it had received from the plaintiffs five packages of samples, but as the witness did not himself remember what had transpired, he very obviously could not testify that those boxes were addressed in that manner, or represented as containing only samples, when in fact the contents were undelivered negotiable railway bonds. The stipulation read in evidence, and also one of the witnesses sworn on behalf of the defendant, described the address as it had been placed upon the boxes, without any reference to the circumstance that either had been designated as containing samples; besides that there were not five of them in number as the stub stated, but only two, and they were addressed to a well-known firm of bankers in London, whose business would not be supposed to extend to articles understood to be represented by the term samples. It was not probable that the boxes had been marked in that manner, or that they were the same packages as were mentioned on the stub. If they had been, the fact would most likely have attracted the observation of the plaintiff, whose attention was directed to them when they were received by his firm. He swore that they were addressed to bankers, and for that reason he was induced to inquire concerning the contents of the boxes. And the impropriety would have been at once apparent to him if they had been marked samples, when he was told they were bonds.

The referee, from all the evidence before him, found that the form and appearance of the boxes were not such as to mislead the defendant, that no deception was practiced, and no misrepresentations were made by the plaintiffs concerning the character and contents of the boxes. The preponderance of the evidence on these circumstances was decidedly with the plaintiffs, and, accordingly^the conclusions drawn from it by the referee must be considered final.

The evidence also failed to show that any inquiry was made by either of the defendant’s agents, as to the nature of the contents of the boxes. They did, in fact, contain $2,000,000 in amount of first mortgage bonds, which were in transit to the agents of the railway company at London, to be there delivered in exchange to the holders of preceding bonds for like amounts, and which had been secured in a similar manner and were designed to be returned. They were executed ready for delivery, but by a regulation of the London Stock Exchange, could not there be negotiated until they were countersigned . by the agents who were to receive them and make the exchange. This restriction seems to have only prevailed there, and for that reason would not have prevented their negotiation elsewhere by the mere delivery, even of a fraudulent holder. But that circumstance was not sufficient to enable the defendant to maintain its defense against the present action; for, as long as no artifice was resorted to, and no representation made to deceive the agents of the defendant, it was bound to inquire of the shippers, if any desire existed to ascertain the contents of the boxes, in order to determine the compensation which should be charged for their carriage and delivery ; and when that has not been done, the carrier must be governed by the contract he may have made. The rule upon the subject has been declared in a very recent case, in terms excluding the validity of the claim insisted upon by the defendant in this instance.

By this rule “where there is no special contract limiting the common-law liability of the carrier, nor any notice so specially brought home to the knowledge of the shipper as to have that effect, the shipper is not bound to disclose the value of the goods, unless he is asked therefor by the carrier, but the carrier has a right, to make inquiry and have a true answer, and if he is deceived by a false answer given he will not be responsible for any loss. If, however, the carrier makes no inquiry, and no artifice is used to mislead him, he is responsible for the loss, however great may be the value.” (Per Folger, J., in Magnin, v. Dinsmore, 62 N. Y., 35,40.) And the same rule was declared to be the law upon this subject in the earlier case of Walker v. Jackson (10 M. & W., 161, 168; Angell on Carriers, § 261.)

It was by no fraud or deception tbat tbe defendant was induced to contract for the carriage and delivery of tbe bonds as it did, for tbe compensation of six dollars, and tbat was all tbat was paid,. Tbat was tbe agreement voluntarily made by it, and it could not afterwards insist upon a larger compensation, because it discovered, after tbe service contracted for bad been performed, tbe existence of a fact wbicb might, when tbe packages were presented, bave justified tbe exaction of a much larger sum. Tbe agreement was made for a consideration deemed adequate at tbe time, and as tbe defendant was not induced to enter into it by any deception or other improper means, it was bound to perform it according to tbe terms in which it bad been made.

It has been insisted tbat it was a fraud upon tbe defendant to place property of this description in its custody for carriage, in tbe manner these bonds appear to bave been packed. But there was nothing in tbat circumstance from wbicb it could be held tbat tbe conduct of tbe shipper was for tbat reason fraudulent. They were undebvered securities, having, by reason of that circumstance, no great value in tbe defendant’s custody, nor in tbat of any other person, until they should be negotiated. And tbe fact tbat, in other instances, similar instruments were sent forward in valises, does not fortify this position of tbe defendant. Bor tbat was not done for tbe success of any fraudulent design, but, as tbe witness testified, simply on account of tbe suddenness of tbe occasion, and to be in a bandy shape to place on board tbe ship. Tbe bonds seem to bave been regarded by tbe railway company as of no greater value, than tbe expense of reproducing them in case they bad been lost or destroyed, and its conduct cannot be held to be fraudulent, even if it erroneously acted in good faith upon tbat belief. But this was not an inaccurate view to be taken of their value as they were held by tbe plaintiff or tbe defendant. And if they had been stolen and fraudulently negotiated by tbe thief, it is not very probable tbat tbe defendant could bave been rendered bable for their enhanced value resulting from those circumstances; for tbat would be produced by an act not necessarily caused by its own omission of care. (Ryan v. N. Y. Central R. R. Co., 35 N. Y., 210.)

But however that may be, and it is not necessary to decide it now, as no fraud was practiced upon the defendant, and it made no inquiry concerning the quality or value of the contents of the boxes, even the existence of so large a measure of liability would not relieve it from the performance of its contract, or entitle it to demand the payment- of a consideration not required by the agreement.

The witness was not improperly allowed to state why the bonds were not fully executed. The evidence was proper for the completion of the statement elicited by the defendant’s counsel. He had stated, on that examination, that the bonds were not fully executed; and he was afterwards only allowed to add in what respect their execution was defective. There could be no impropriety in permitting that to be done. And besides that, the evidence given was more essential to the support of the defendants’ position than to the advancement of the plaintiffs’ case. For it showed that no imperfection existed in the execution of the bonds, but that they' were merely defective for negotiation in the London market, because of want of compliance with a regulation of one of its local boards.

The evidence was' harmless to the defendant, owing to the manner in which this subject had been left by it. As no error can be held to have intervened in the trial or disposition which the referee made of the case, the judgment appealed from should be affirmed.

Davis, P. L, and Beady, L, concurred.

Judgment affirmed.


text:
    BENJAMIN C. THAYER, Respondent, v. JAMES MARSH, Appellant.

      Mortgages on real estate in othen' States — presumption as to place of execration — 8 R. S. (5th ed.), 29, § 159¡ — not applicable to such mortgages — Purchase-money mortgage — personal liability. of mortgagor — assumption of mortgage by subsequent grantee.

    Where a mortgage is given upon land situated in another State, and nothing is alleged or proven as to its place of execution, it is presumed to have been executed in the place where the land is situated.
    At common law a purchase-money mortgage executed in the usual form, constitutes a sufficient acknowledgment of an existing indebtedness to authorize a promise by the mortgagor to pay the same to be implied therefrom, and the liability thereby imposed upon him is sufficient to validate an agreement made in a conveyance from him by which his grantee agrees to assume the same.
    Where a person accepts a conveyance of real estate subject to a mortgage, which he assumes as a part, of the consideration-money of the conveyance, he will not be allowed to protect himself against the performance of the obligation so assumed by denying the personal liability of his grantor for the payment of the said mortgage.
    Section 159, 8 Revised Statutes, 29, providing that no mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured thereby, does not apply to a mortgage executed in another State upon land situated therein.
    Appeal from a judgment in favor of plaintiff recovered on trial before the court, without a jury.

      Ed/ma/rd H. Ecvwlce, for the appellant.

      Joseph U. Shoudy, for the respondent.
   Daniels, J.:

The plaintiff recovered as the assignee of a mortgage given by Frank Pulver and wife, to secure the sum of $3,500, as part of the purchase-price of the premises described in it. After the execution and delivery of the mortgage they conveyed the same premises, by warranty deed, to the defendant for the consideration of $6,500. This deed contained the following clause: “ This conveyance is subject, however, to the payment, by the party of the second part, of two mortgages thereon, one for twenty-five hundred dollars ($2,500), given by George A. Raymond and wife, to George S. Porter May 17, 1873, and now held by the Real Estate Trust Company, and one for thirty-five hundred ($3,500) dated June 14, 1873, made by the parties of the first part, hereto, to George S. Porter, which mortgages are assumed by the party of the second part, as part of the consideration above expressed for this conveyance.” The mortgage itself was not given in evidence upon the trial, neither was it particularly described in the pleadings. But the fact was alleged and admitted that at the time, and for the amount stated in the deed, the mortgage had been given by Pulver and wife. And the allegation that it was also given to 'secure the sum mentioned in it, as a portion of tlie purchase-price of the property, was not denied. It may be inferred from these circumstances, that the mortgage was in the usual form of a security for the pm’chase-price of the property. And if that was its character, then the security created by it for the purchase-money would be sufficient to constitute an implied acknowledgment of a liability for its payment. It was not in any form alleged that the purchase-money seemed was a debt against any other person than one or both the mortgagors. And in the absence of any suggestion of that nature, it may be reasonably presumed that their object in executing it, was to secure a debt incurred by themselves in the purchase of the land.

The land mortgaged and conveyed by the deed to the defendant was situated in the State of New Jersey. And as it was neither shown, nor in any form alleged, that the mortgage was executed in this State, that may be assumed to have been done in the State of New Jersey; for conveyances of land are presumed to be made in view of the property conveyed or incumbered. (Wendell v. People, 8 Wend., 183, 190 ; Van Wyck v. Wright, 18 id., 157, 165.) And by affording that presumption its appropriate effect, the mortgage must be deemed to have been made in the State in which the property affected by it was situated. For that reason it cannot be held to be within the provision of the statute of this State, which has provided that no mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured. (3 R. S. [5th ed.], 29, § 159.) But it must be construed according to the principles of the common law as they do not appear to have been changed by legislation in the State of New Jersey. And by them a covenant to pay will be implied from the mere acknowledgment of an existing indebtedness. (Elder v. Rouse, 15 Wend., 219 ; and cases cited.) The case of Culver v. Sisson (8 Comst., 264) is not inconsistent with this proposition, for it was decided upon the ground that the instrument relied upon in support of the action contained nothing amounting to such an acknowledgment. While it is' further sustained by that of Hart v. Bruton (7 J. J. Marsh., 322), where it was held that a promise to pay might be implied from the use of the term borrowed, in an instrument given to create a security. The deed received by the defendant was made and accepted upon the theory that the grantors had become liable, by means of tbeir mortgage, to pay tbe mortgage debt. For tbat reason they made tbis provision for tbeir protection against tbat babibty, witb tbe privity and assent of tbe defendant. It was as efEectuaby done as if so mucb money bad been placed in bis bands for tbat purpose. Tbe property was sold for tbe entire consideration of $6,500. And instead of insisting upon tbe payment of $3,500 of it by tbe defendant, it was left in bis bands to pay off tbe mortgage, and by accepting tbe deed witb tbe clause referred to, wbicb was contained in it, be undertook to make tbat. payment, and in tbat manner extinguish tbe assumed babibty of tbe grantor for tbe debt. "Within tbe cases, as they now stand, tbat was sufficient to render tbe defendant personally bable to tbe mortgagee and its subsequent assignee, for tbe payment of tbe sum secured by tbe mortgage. (King v. Whitely, 10 Paige, 465; Trotter v. Hughes, 2 Kern., 74; Burr v. Beers, 24 N. Y., 178; Van Schaick v. Third Ave. R. R. Co., 38 id., 346; Campbell v. Smith, 15 N. Y. S. C. [8 Hun] 6; Garnsey v. Rogers, 47 N. Y., 233.)

Tn tbe case of Trotter v. Hughes (supra), tbe premises were merely conveyed, subject to tbe mortgage. Its payment was not assumed as part of tbe purchase-price of tbe land, as it was in the case now under consideration. And after tbat case was decided, it was considered by tbe Court of Appeals, and so held, tbat such an agreement on tbe part of tbe purchaser, created a personal babibty for tbe payment of tbe debt. (Burr v. Beers, supra) It is true tbe grantor was, in tbat instance, personaby bable for tbe demand, but no stress was placed upon tbat circumstance in tbe decision of tbe case. Tbat proceeded upon tbe agreement made by tbe grantee when be accepted tbe deed containing a statement of it. And it was considered as extending bis babibty, and for tbat reason in conflict witb tbe early case of King v. Whitely, by tbe decision made in Garnsey v. Rogers (47 N. Y., 238, 240, 241). Tbe principle wbicb was sanctioned, is broad enough to include ab cases where one person receives money or property from another, and in consideration thereof agrees to debver tbe money or pay tbe price of tbe property to a third person. Tbe individual making tbe agreement should not be allowed to protect himself against tbe performance of tbe obbgation voluntarily assumed by him, by contesting tbe babibty of tbe party providing tbe fund. Tbe agreement made by the defendant, rendered its performance subject to no such contingency. But it was positive in its character that payment would be made on account of the property placed in his hands; for that reason he should not be permitted to refuse the payment and still hold and enjoy the property for which that was a portion of the price. And substantially for that reason it was held that the action could be maintained under circumstances similar to those now presented in the case of Vrooman v. Turner (15 N. Y. S. C., 78). The judgment recovered in this case was just and right, and it should be affirmed.

Davis, P. J., and Beady J. concurred.

Judgment affirmed.


author: Barrett, J.:

text:
      No. 1.

      No. 2.

    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE AMERICAN GEOGRAPHICAL SOCIETY v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS FOR THE CITY AND COUNTY OF NEW YORK. SAME v. SAME.

      “Public library ” — what exempt from, tarnation as — 1 JR. 8., 388, § 4, sub. 5.
    The relator, located in the city of New York, was incorporated, among other purposes, tor the encouragement and advancement of geographical science, and for “the permanent establishment in the city of New York of an institution in which shall be collected, classified, and arranged geographical and scientific works, voyages and * * * ; having especial reference to that kind of information which should be collected, preserved, and be, at all times, accessible for public uses in a great maritime and commercial city.” A public library has always been, and at the time of this application still was, kept by the relator, free and open to all. Held, that the relator was entitled to exemption from taxation as a “public library,” by virtue of 1 Revised Statutes, 388, section 4, subdivision 5.
    Oeetioeaei to the respondents to review their action in refusing the application of the relator, to have its house and lot No. 11 West Twenty-ninth street, New York, exempted from taxation.

      Two writs were issued, oue to review the action of the respondents with reference to the assessment for the year 1876, and, the other for the year 1877. The property in questson was purchased by the relator in June, 1876.

      Etial F. Hall, of counsel for the relator.

      I. A. Beall, of counsel for the respondents.
   Barrett, J.:

The Bevised Statutes provide that the real and personal property of every public library shall be exempt from taxation. (1 R. S., 388, § 4, sub. 5.) The question is whether the relator is such a public library and entitled to the statutory exemption. The question is not free from doubt. Statutory exemptions are, in general, strictly construed, and there is force in the contention that such exemption should be limited to libraries organized and maintained by the State or its political subdivisions, or to such as are established by private liberality for the free use of the public, “ and sueh use guaranteed by the charter or deed of foundation.”

There are, however, some persuasive considerations peculiar to the ease at bar. The purposes of the relator are essentially of a public character. It exists neither directly nor indirectly for private, personal, or corporate gain, but for the encouragement and advancement of geographical science, and the collection, diffusion and perpetuation of useful knowledge. Such a public-spirited and beneficial institution is entitled to a broader and more liberal construction of the statute of exemptions, than if it were a mere money-making body. The spirit of the cases favors this conclusion; for, while in Chegaray v. The Mayor (13 N. Y., 220), it was held that a private boarding-school was not within the statute exempting “ every schoolhouse and every building erected for the use of a college, incorporated academy, or other seminary of learning” yet in The Hebrew Free School Association v. The Mayor (4 Hun, 446), a society organized under the laws for the incorporation of benevolent, charitable, scientific, and missionary societies, was treated as a “ religious society ” within an act (Laws of 1852, chap. 282) limiting exemption from taxation to what is “ exclusively ” the property of a “ religious society.”

The object in the one case was private gain, and the construction was strict; in the other gratuitous instruction, and the interpretation was liberal. Assuming, then, that the construction, in the present instance, should not be too narrow, let us look at the relator’s charter. It specifies as one, and certainly not the least important, of its objects, “the permanent establishment, in the city of New York, of an institution in which shall be collected, classified and arranged geographical and scientific works, voyages and travels, maps,'charts and globes, instruments, documents, manuscripts, prints, engravings, or whatever else may be useful or necessary for supplying full, accurate and reliable information in respect to every part of the globe, or explanatory of its geography, physical and descriptive ; and its geological history, giving its climatology, its productions, animal, vegetable and mineral; its exploration, navigation, and commerce ; Timing especial reference to that kind of information which should be collected, preserved, and be at all times accessible for public uses in a great ma/ritíme and commercial city.”

It is true that this latter phrase, grammatically considered, simply characterizes the preceding sentences, but when read in the light of the entire context, and the general objects of the society thus incorporated, it possesses a deeper meaning and must be received as the expression of an independent purpose. Otherwise, the words “ which should be at all times accessible for public uses in a great maritime and commercial city,” are inapt, in part superfluous and almost bombastic. Certainly, a mere summing up or enumeration of what a primate TAbra/ry should contain, might have been expressed much more simply and naturally. Such a summing up was evidently not the legislative intention, but rather an expression of its understanding, that the library was at all times to be accessible to public uses. It was with this understanding, thus expressed, that -the charter was sought, granted and accepted.

But further, the relator has always acted upon this construction, for we find, as matter of fact, that its libraiy has always been, and still is, free and open to all. So long as the general public continue to have free access to this extensive and valuable library, surely it is practically, and to all intents and purposes, a “public library.” Under such circumstances, to criticise the library as but an incident to the relator’s purposes, would seem to be ungracious. In fact, the collection is one of the relator’s greatest achievements, and its “permanent establishment” one of its most conspicuous objects. Clearly it does not detract from its character as a public, library, that around it are clustered activities which but tend to increase its volume and widen its usefulness.

The words “ public library ” are not technical. They have acquired, by judicial decisions, no precise legal meaning. They are words of common use and ought, therefore, as between the public, which is invited to free enjoyment and a disinterested society, such as the relator, to be interpreted as they are commonly understood. Indeed it is conceded that if the free public use had been guaranteed by the express terms of the charter, it would have been a public library within the meaning of the exempting statute. We have seen that such public use is guaranteed, if not by express direction, at least by necessary implication. This construction, too, is fully conceded, and indeed taken for granted in the relator’s petition, where we find the assertion that “the use of the library by the public is specially provided for by its cha/rter.” In view of the result,¡the relator is bound by this. We are of opinion, therefore, that the house and lot in question should be exempted from taxation, as the real estate of a public library. This applies, however, only to the proceedings to review the action of the commissioners with respect to the year 1877. We agree with the learned corporation counsel that the property was not exempted from taxation for the year 1876, by reason of the relator’s purchase in the month of June of that year.

The respondents are entitled to judgment in the first proceeding affirming the assessment and quashing the writ of cert/iora/ri.

The relator is entitled to judgment on the second writ reversing the proceedings and granting the application for exemption.

Daniels, J., concurred.

Present- — -Daniels and Bareett, JJ.

Writ quashed in the first proceeding, and assessment affirmed. Proceedings reversed in the second proceeding, and relator’s application for exemption granted.


author: Davis, P. J.;

text:
    JAMES JACKSON, Respondent, v. CHARLES JOHNSON, Appellant.

      Accounting — pmtn&rship — interest on capital of pa/rtner — when allowed— Payment on account— to what items it should be applied.

    Appeal from a judgment in favor of plaintiff, entered upon the report of a referee.
    The action was brought to obtain an accounting and settlement of the affairs of a partnership carried on by the plaintiff and defendant from January, 1866, to March, 1868.
    A number of points were raised by the appellant. Those considered in the following extracts, from the opinion delivered at the General Term, are the only ones of general interest.

      “ It is insisted that the appellant should have been allowed interest on his capital. The referee finds that the compensation agreed upon for the services rendered by the l’espondent was one-half of the net profits to be made in the business. It is quite apparent from the evidence that, by mutual agreement of the parties, the respondent put his shill and labor in the superintendanee of the business, against the appellant’s capital. They considered the one equal to the other. There was no agreement that the capital of the appellant should bear interest, and under the circumstances of the case, there would be injustice in allowing it.
    There were to be monthly statements and. monthly divisions of profits; and for fourteen consecutive months after the business commenced, these statements were made and profits were ascertained, and at the end of each month the defendant paid to the plaintiff his one-half thereof. The accounts continued to be made up in the same way afterwards, and no claim was ever set up by defendant that he was entitled to any interest on his capital. These acts of the parties were a practical construction of the agreement, that no interest was to be demanded or paid. Besides, where labor and shill, under an agreement of this character, are put in against capital, it is understood by the parties that the one is deemed equal to the other, and, therefore, if interest be computed on cash capital, the same interest should be allowed upon the labor capital, to carry out the idea of equality of value, with which the parties set out in the undertaking. We think the learned referee was right in not allowing the defendant interest on his capital.
    “ The third point of the appellant is, that the defendant should not be compelled to pay one-half of the Leland indebtedness. It appeared that at the time the business connection of the parties ceased, the Lelands were indebted to defendant in a very considerable sum of money. The defendant continued the business, and the Lelands continued to be his customers for several years thereafter, until they finally went into bankruptcy. During three years prior to 1811 their dealings on credit amounted to over $20,000.. When they went into bankruptcy, the result of the continuous course of dealing was an indebt- ■ edness of less than $11,000. Exclusive of other cash dealings, they paid to Johnson, after March, 1868, more than twice as much as they owed him at that time. No specific directions were given by them, at the time of making the payments on account, as to the application of the money to any particular indebtedness. It seems to us obvious that the account was a continuous one, and the moneys paid from time to time should have been applied upon the earliest indebtedness. Both at law and in equity, in the absence of any direction by the payor and any actual application by the payee, the payments made will be applied to extinguish the indebtedness of longest standing, but especially will that be the case in equity where a-third person is interested in a part of the indebtedness on which such payments are made.
    “It was a duty the defendant plainly owed to the plaintiff to receive any moneys from time to time from the Lelands, when no specific direction as to their application was given, and to have applied them upon the indebtedness, which accrued while the plaintiff was interested in the profits of the business. Equity will do for him what he ought to have done for himself. We think the conclusion of the referee on that subject was entirely harmonious with justice and equity.”

      John JE. Pa/rsons, for the appellant. EUas J. Beach, for the respondent.
   Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurred.

Judgment affirmed.


author: Brady, J.;

text:
    MIDDLETON BELL, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, and THE HEALTH DEPARTMENT OF THE CITY OF NEW YORK, Appellants.

      Beference — long account— what constitutes.

    Appeal from an order directing a reference.
    The court at General Term said: “ This is an action sounding in damages. The defendants contracted to deliver for a term certain, the contents of sinks and privies, and failed to do so.
    The pleadings present several issues relating to the subject-matter of the action, and the issues in turn present questions of law which may, considered with reference to the Code of Health, be difficult.
    The plaintiff’s case depends, however, chiefly upon the number of loads or quantity of soil which could have been taken from the sinks and privies during the period covered by the complaint; but this proof does not necessarily involve the examination of a long account. The number of sinks and privies form one or two items; the average size, one, and, therefore, the quantity another; the value, per load, of the quantity, aggregated and reduced to loads, another; and, doubtless, one or two more matters of figures which a jury could readily handle and easily understand, under the direction of the court and a tabular statement prepared for them. The proposition of the counsel for the defendants seems to present the plaintiff’s case concisely, namely : proof as to the number of cart loads which the defendants failed to deliver, and their value per load. It is true that many details must be proved before the damages are to be estimated ; but it is very clear that, in arriving at that result, the number of loads not delivered and their value form the basis of the estimate of damages. The account which the plaintiff claims must be examined, in fact, constituted the items of damage, and relates, therefore, to the subject of the damages sustained, and not to an account proper which is for goods sold or moneys received or collected, or paid out, loaned or expended. It is the commercial or financial account to which the Code relates — the account in trade or in finance, and not a statement of items or elements of damages for a contract broken, which, if fulfilled and prosecuted, might require an examination of items in detail. For example, if the defendants had agreed with the plaintiff to deliver the contents of sinks and privies at a price per load, and had done so, and the plaintiff had refused to pay, the examination of the account in detail might be necessary. It may be said, indeed, that there is in this case no account whatever within the meaning of the Code. It may be said, in addition, that it frequently happens in actions to recover damages under a contract, and tried by a jury, that many items are proved and are to be considered. For example, to recover under a policy of insurance when the defense of fraud is set up, and the proof of the stock destroyed becomes essential. For these reasons the action was not one in which a compulsory reference should have been ordered.”

      F. L. Stetson and W. P. Prentice, for the appellants. Thomas Hooker, for the respondent.
   Opinion by

Brady, J.;

Davis, P. J., and Daniels, J., concurred.

Order reversed, costs to abide event.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. AUGUSTUS MILLER, v. THE BOARD OF POLICE COMMISSIONERS.

      O&rttorwri — what it brings up for review.

    ’Certiorari to review the proceedings of the board of police commissioners, in removing the respondent from the office of sergeant of police.
    • With reference to what questions were brought up by the certiorari, the court, at General Term, said: “ If we were to look at the returns in this case as a bill of exceptions upon the trial of an action at law, we might be constrained to hold that some of the rulings of the board upon this trial, touching the admission or rejection of evidence, were erroneous. But we do not understand it to be the province of a certiorari of this kind to bring such questions before us for review. In our judgment all that is before us for consideration are the questions whether the board had jurisdiction of the subject-matter and person of the relator; whether the relator was regularly tried in accordance with the rules and regulations established by the board, having an opportunity to be present to be heard; and whether upon such trial competent and legal testimony, sufficient to justify the conclusion of the board in finding him guilty upon the charges. If we go beyond those questions we subject this special and statutory tribunal to all the rules, technical and otherwise, that attend trials in courts of common law, and we substantially disarm the board of commissioners of the summary powers intended to be conferred upon them for the purpose of preserving a competent and efficient police. Every removal of a member of the force will be the subject"of review; and every technical error or departure from the established rules of evidence in courts of law, will be instruments to thwart the discipline sought to be maintained by the rules of the board, and to keep unfit persons in the position of members of the force. Besides, the calendars of this court and the Court of Appeals will be thronged with cases of this kind, for the purpose of reviewing the decisions of the board upon questions of evidence, independently of the guilt or innocence of the officer charged with the breach of discipline. We think the numerous and extremely conflicting cases upon questions arising upon the common-law writ of certiorari do not require us to go this length. The evidence upon the question whether the relator was guilty of the charge and specification in this case was conflicting. There was enough, however, of positive and direct evidence, corroborated by circumstantial evidence, to justify the commissioners in reaching their conclusion.”

      W. W. Ladd, for the relator. Charles J. McLea/n, for the defendants.
   Opinion by Davis, P. J.; Brady and Daniels, JJ., concurred.

Proceedings and decision affirmed and writ quashed, with costs.


author: Boabdman, J.:

text:
    THE ULSTER COUNTY SAVINGS INSTITUTION, Plaintiff, v. JOHN T. DECKER and others, Defendants.

      Inswanee — collat&t'dl to mortgage — when com/pamy entitled to subi-ogatíon.

    The plaintiff held as collateral security to a mortgage a policy of insurance for $3,000, issued by the Home Insurance Company, on the mortgaged property, payable to it, in case of loss, to the extent of its mortgage interest. By the terms of the mortgage the mortgagor was to keep up the insurance, and on his default the mortgagee was authorized so to do. The mortgagor having failed to pay the premium the mortgagee subsequently paid the same and thereafterwards foreclosed the mortgage and recovered a judgment for the debt and the premium, which it had paid.
    On April 1, 1874, the property burned, and on the 80th of July, 1874, and before the sale under the decree of foreclosure, the plaintiff, in consideration of the payment of the policy, assigned its decree for foreclosure to the Home Insurance Company to the extent of $3,000, subject to the balance due to the plaintiff which was to be first paid; the assignment being made in pursuance of an agreement by which the Home Insurance Company agreed with plaintiff to keep good all policies which might be held by the plaintiff as mortgagee, although they had become invalid as to the interests of the mortgagor. In this application for the surplus moneys arising from the sale of the real estate, held,

    That the insurance was contracted for the benefit of the owner of the property, and that the company was not entitled to be subrogated to the rights of the mortgagee.
    That the fact that the company had, by a contract with the mortgagee, waived a defense available against the mortgagor, did not affect the right of the insured to hqve any payment made in CEjse of loss applied in payment of the mortgage,

      Appeal from an order directing the distribution of the surplus moneys, arising from the sale of certain mortgaged premises under a decree of foreclosure.
    This action was brought to foreclose a mortgage executed by John T. Decker and wife to the plaintiff to secure the sum of $3,000, with interest thereon from April 1, 1872. The mortgage contained the usual clause requiring the mortgagor to keep the property insured and the policy assigned to the mortgagee to protect his claim. In pursuance of this provision the Home Insurance Company issued a policy for $3,000 thereon, payable to the plaintiff to the extent of its mortgage interest. In pursuance of the terms of the mortgage the plaintiff, upon default of the mortgagor, procured the insurance to be renewed and subsequently foreclosed the mortgage and recovered a judgment for the amount due, together with the premium which it had been compelled to pay. Subsequently, and April 1, 1874, the premises were destroyed by fire. On the 30th of July, 1874, and before the premises were sold under the decree in foreclosure, the plaintiff assigned to the company $3,000 of its judgment of foreclosure, subject to the prior payment of the balance still due to it. The premises sold for $3,000. The referee paid therefrom the balance due plaintiff under said decree and the expenses of the sale, and had left in his hands $1,800. This application by the company for the payment of the $3,000 out of the surplus money was contested and decided in favor of the subsequent lienors as against the Home Insurance Company.

      Charles A. Fowler, for the Home Insurance Company, appellant.

      8. L. Magoun, for W. C. Herrick, respondent.

      H. Ghvpp, Jr., for H. Osterhoudt, respondent.

      Bernard de Fiero, for J. L. Hasbrouck, respondent.
   Boabdman, J.:

The policy of the Home Insurance Company was in the ordinary form of an insurance upon property, issued in the name of the owner of the equity of redemption, but payable, in case of loss, to tbe plaintiff to the extent of its mortgage interest therein, the balance to such owner. The plaintiff held a mortgage for $3,000 upon snch property. By the terms of the mortgage the mortgagor agreed to keep the buildings insured for $3,000, and assign the policy to the plaintiff. In case of failure to do so the plaintiff was authorized to effect such insurance, and the premium paid by it became a lien on the premises. The insurance was, therefore, a collateral security for plaintiff’s mortgage. Such insurance was not kept up by the mortgagor or his grantee, and plaintiff effected the insurance as provided for by the mortgage, paying the premium. Upon a subsequent foreclosure of the mortgage this premium was included as a part of the debt secured, and a decree obtained against the mortgagor and owner of the equity of redemption for such premium and debt. The property was burned April 1, 1874. On the 30th July, 1874, the plaintiff assigned its decree for a foreclosure and sale, under the mortgage, to the Home Insurance Company, to the extent of $3,000 thereof, but subject and junior to the balance due plaintiff under such decree, to be first paid. This assignment was made in pursuance of a contract, March 27, 1869, between plaintiff and the Home Insurance Company, whereby the insurance company agreed that all policies issued by it which might be assigned to or held by the plaintiff as mortgagee, shall be binding, and the interest of the said plaintiff shall be absolutely insured so as to save plaintiff from loss. The contract also provides for an assignment of the bond and mortgage to the insurance company in case of loss (if the policy has become invalid as to the interest of the mortgagor) upon full payment to plaintiff of its claim.

We are called upon to determine the effect of such a contract and the action of the parties thereto. In the absence of that contract the insurance was solely for the benefit of the owner of the property. (Excelsior Fire Ins. Co. v. Royal Ins. Co., 55 N. Y., 343 ; Clinton v. Hope Ins. Co., 45 id., 467.) Can that contract convert a policy, issued for the benefit of the owner, into an insurance of plaintiff’s interest as mortgagee ? Can the insurance company, by virtue of such contract with plaintiff, and assignment, acquire a greater interest against the owner of the equity of redemption than the plaintiff had % I think it evident that the plaintiff could not receive the $3,000 of the insurance company and still claim the whole amount of its mortgage, without allowance for such payment. It was not plaintiff’s interest as mortgagee that was insured, but the property mortgaged, and for the benefit of the mortgagor or his assigns. He or they paid the premiums, either in person or by the plaintiff, as their agent. Such premium is charged to the insured hy the terms of the policy, and is included in the judgment recovered. If the position of the insurance company is correct it will recover bach the $3,000 paid, and would also recover again the premiums paid upon the policy, provided the property mortgaged is worth enough, but for the limitations in the assignment.

But this was not an insurance of plaintiff’s interest as mortgagee. It was an insurance of the property of the owner of the equity of redemption, for the benefit of the mortgagee. The plaintiff and the insurance company could not qualify the effect of the receipt of the insurance money or modify the contract of insurance. If the insurance company saw fit, with or without consideration, to indemnify the plaintiff against the loss of its debt, that would not affect the right of the insured to have the insurance money, when paid, applied towards the satisfaction of the debt. That was the contract. (Waring v. Loder, 53 N. Y., 581.) In this case Andrews, J., says (p. 585): “ The plaintiff received from the underwriter, after the judgment was entered, an amount sufficient to pay it, and upon the receipt, the law giving effect to the contract between the mortgagor and mortgagee, applied it in payment of the debt.” In their essential facts the two cases are alike, and the language quoted is applicable to each. (See, also, Graves v. Hampden Fire Ins. Co., 10 Allen, 281; Cone v. Niagara Fire Ins. Co., 60 N. Y., 619 ; Kernochan v. Bowery Ins. Co., 17 id., 428.)

In Excelsior Fire Insurance Company v. Royal Insurance Company (55 N. Y., 343) the insurance was of the mortgagee’s interest in the premises, and the mortgagor was not a party to the contract, and had no rights under it. The case of Foster v. Van Reed (5 Hun, 321) was like the last case cited, an insurance of the mortgagee’s interest and not of the mortgagor’s interest. It is, doubtless, for this reason, that case was reversed in the Court of Appeals in May last.

Nor is it deemed of any importance that the company might have defended successfully its liability to tbe mortgagor or his grantees. Quoting again from Judge Andrews’ opinion in Waring v. Loder (write): “ Tbe company and tbe plaintiff could not, by their contract, qualify tbe effect of tbe receipt by tbe mortgagee of tbe insurance money, as between tbe plaintiffs and defendant.”

In tbe case of The Springfield, etc., Insurance Company v. Allen (43 N. Y., 389) tbe right of tbe insurer to be subrogated was a part of tbe contract of insurance, and hence bound tbe party insured.

I conclude, therefore, that this was an insurance of tbe property and interests of tbe mortgagor as collateral security for tbe payment of bis mortgage; that tbe insurance company could and did waive defenses that might have been available against tbe insured, without bis knowledge or consent, by a contract with tbe mortgagee; that such contract did not invalidate the contract of insurance between tbe company and tbe insured, whereby any payment made by tbe company, in case of loss, was to be applied in payment of tbe mortgage. Hence, I conclude tbe Home Insurance Company was not entitled to be subrogated to tbe rights of tbe mortgagee upon payment of tbe $3,000, and is not entitled to any portion of tbe surplus arising on tbe sale under tbe foreclosure of tbe mortgage.

Tbe order is, therefore, affirmed, with ten dollars costs and expenses of printing.

Bockes, J., concurred; Learned, P. J., taking no part.

Order affirmed, with ten dollars costs and printing.


author: Boardman, J.:

text:
    HIRAM BAKER, Respondent, v. JANE LAMB, Appellant.

      Married women — land conveyed to husband and wife — interest of wife therein not a separate estate — false representations.

    Where a farm has been conveyed to a husband and wife jointly, the wife is not seized of a sufficient separate estate therein to enable her to charge the same with the payment of a promissory note made by her.

      Semble, that a married woman cannot give herself capacity to contract by falsely representing that she has it and is not estopped by such representations.

      Semble, that although a debt may be charged upon the estate of a married woman by parol, yet this can only be done when the debt itself exists only by parol and the intent to charge the separate estate forms a part of the contract.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought upon the following note, executed by the defendant, a married woman:
    “ $100. Bain-bridge, Chenango Co., N. Y., March 21, 1870.

      “ Eight months after date, for value received, I promise to pay to the order of Hiram Baker $100, with interest.
    (Signed) “ JANE LAMB.”

      Belknap <& Edson, for the appellant.
    The defendant had no separate estate. (Albamy Fire Ins. Go. v. Bay, 4 N. Y., 11; 4 Barb., 407, 414 ; Bouviers’ Law Die., “ Separate Estate ;” Farmers and Mech. Fat. BJe. of Rochester v. Gregory, 49 Barb., 155; Gotel v. Gosi, 31 id., 314 - 319; Wright v. Sadler, 20 N. Y.', 32, 34; Torrey v. Torrey, 14 id., 430; Freeman v. Barber, 3 S. C. [T & C.], 574; Willard on Real Estate, 180, 182; .Beach v. Hollister, 3 Hun, 519.)

      Bu/ndy c& Scrambling, for the respondent.
    When the consideration of a debt contracted by a married woman is one going to the direct benefit of her estate, or for the benefit of herself on the credit of her estate, the intention to charge the separate estate need not be stated in the contract or instrument evidencing the indebtedness. (Quassadc Bank v. Waddell, 1 Hun, 125, and case cited; Miller v. Hunt, 1 Hun, 491; Kelley v. Long, 1 id., 714; Owen v. Griffin, 2 id., 670; WilUa/mson v. Dodge, 5 id., 497; Kelley v. Long, 4 N. Y. S. C. [T. & C.], 164; Maxon v. Scott, 55 N. Y. 247; Carpenter v. O'l Dougherty, 50 id., 660 ; Smith v. Dunning, 61 id., 249; Spencer v. Humiston, 16 N. Y. R. [9 Hun], 71.) Even if the money borrowed was not in fact used for the benefit of her separate estate, the representations made by her that she wanted it for that purpose would make (her liable. (1 Hun, 714, above cited, and same case fully reported in 4 T. & C., 164, also above cited; Hier v. Staples, 51 N. Y., 136.)
   Boardman, J.:

This action is upon a promissory note in the ordinary form given by the defendant to the plaintiff for $100. The defendant, who was and is a married woman, answered, setting np her coverture and that the note was not given for the benefit of her separate estate, and was not made a charge thereon. The referee finds the coverture as alleged; that defendant had a separate estate prior to 1867; that, in that year, $1,000 of her separate estate was expended in connection with moneys of her husband in the purchase of a farm which was deeded to the defendant and her husband jointly; that they have since lived on such farm, their interests remaining the same therein; that the remainder of defendant’s separate estate has been expended in the support of the family, and that she had no other separate estate, except the interest in said farm. The referee also finds that defendant asked for the loan of said money for the benefit of her separate estate, viz., to improve the dwelling-house on said farm, and to pay for a horse then used thereon, and plaintiff loaned the money for such purposes. Upon these facts, and others not contested, the referee found plaintiff entitled to recover the amount of the note and interest.

Upon the facts as found, it is apparent the defendant had no separate estate to be benefited by, or charged with, the payment of the note in suit. All she had was in the farm, the title to which was in her husband and herself jointly. ■ That did not constitute for her a separate. estate. (Firemen's Ins. Co. v. Bay, 4 Barb., 414; S. C., 4 N. Y., 11.) The husband and wife do not hold as joint tenants or tenants in common, but by entireties. They hold as one person. Neither has a separate or divisible interest. Neither can sell the entire fee without the consent of the other; and during then joint lives the husband is entitled to the possession, rents, issues and profits. (Farmers, etc., Bank v. Gregory, 49 Barb., 162; Beach v. Hollister, 3 Hun, 519, and cases cited; Torrey v. Torrey, 14 N.Y., 430.)

The defendant having no separate estate or property, her promissory note was a nullity. Except she possessed property to be benefited by her contract, she is not authorized by the acts of 1860 (chapter 90) and 1862 (chapter 172) to make contracts. The only power given to married women, by these acts, is to contract in reference to their separate estate. If they have no separate estate they have no power to contract in reference thereto. I speak simply of the power to bind themselves by their promissory notes. Such notes are prima facie nullities. (Second Nat. Bank v. Miller, 63 N. Y., 639; S. C., 2 Th. & Cook, 104; Kinne v. Kinne, 45 How., 68; Bodine v. Killeen, 53 N. Y., 93.) To remove such presumption of worthlessness, the existence of a separate estate must be shown, and that such note was given for the benefit thereof, or by its terms charges the same with its payment. There being no separate estate to be benefited by the making of this note or charged with its payment, it was invalid.

If the foregoing principles are correct, in their application to this case,- a new trial must be granted, and a further consideration of the legal questions raised by counsel would be unnecessary. But, I think it proper to add, that a married woman cannot give herself a legal capacity to contract by falsely representing that she has such capacity. She cannot do that by indirection which cannot be done directly. (Bodine v. Killeen, ante.) Hence, the defendant is not estopped by her declarations alleged to have been made to the plaintiff when the note was given and the money borrowed.

But if such declarations are relied upon to establish a charge upon separate estate, I think it will not do, for such intention must be expressed in the very contract which is the foundation of the charge. (Yale v. Dederer, 18 N. Y., 265 ; S. C., 22 id., 450.) Doubtless the charge may be created by parol, but only when the contract also is by parol, and the intent to charge the separate estate is a part of such contract. (Maxon v. Scott, 55 N. Y., 247, 251.)

For the reasons assigned the judgment must be reversed, a new trial granted, costs to abide the event, and the reference discharged.

Learned, P. J., and Bookes, J., concurred.

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


author: Board-man, J.:

text:
    DWIGHT BEEBE, Respondent, v. HERMAN L. ESTABROOK and ROBERT C. ESTABROOK, as Administrators, etc., and as Individuals, and others, Appellants.

      Attmcmeements — who entittecl to insist upon — ■grandchildren — S B. 8., 97, § 76.
    Under the provisions of the Revised Statutes in relation to advancements, grandchildren are entitled to insist that advancements, made to his children by the intestate, shall be brought by them into hotéhpot, and that the grandchildren shall be entitled to share therein.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.
    The action was brought by the plaintiff for an accounting and settlement of the estate of one Hobart Estabrook. The only question raised was whether or not certain gifts of money made by the deceased to his sons were to be treated as advances; the plaintiff, a son of the intestate’s daughter, insisting that they should be so treated and that the defendants should be compelled to bring the sums into hoiefvpot. The referee found this fact in favor of the plaintiff.

      J. MoGwi/re, for the appellants.

      8. G. Keeler, for the respondent.

      K. P. Ha/rt, for the infant defendants.
   Board-man, J.:

Among heirs equality is equity. The law relating to advancement is founded upon that maxim. Every advancement is a gift, but every gift is not an advancement. When a gift of money or property is made by a parent to a child, the presumption in general is that it is an advancement. Such presumption may be repelled by evidence of a different intention. (Hatch v. Straight, 3 Conn., 31; Clark v. Warner, 6 id., 359, and see cases cited in 1 Wait’s Actions and Defenses, 205-212.) Recognizing these principles, enough was shown upon this trial to sustain the findings of the referee upon questions of fact. The purpose of the intestate is declared by him in the entry of payments of $500 to each of his children. That is the only entry made by him. Afterwards, in his ill health, he caused the entries of the gift of $200 to each of his sons to be made by one of his sons. The last gift of $3,000 each to his sons was not entered. May it not fairly be presumed that the intent existing in the first gift continued and gave character to the others ? It seems quite plain that the purpose of the intestate was to distribute and apportion a part of his estate, in anticipation of his death, among his adult heirs. The infancy of the other heirs may have made it unwise or inconvenient to give to them an equal share. The parol testimony to characterize his acts, purposes and intentions is conflicting, but there is enough in that to sustain the presumptions arising from the gifts in the absence of other evidence. We are not at liberty, therefore, to reverse the findings of the referee on the ground that they are opposed to the weight of evidence so clearly as to call for such action.

It is contended by the counsel for the appellants that the grandchildren have no right, under the statute, to raise this question or claim a share in the gifts made to the children.

The language of the statute is : “If any child of such deceased person shall have been advanced by the deceased, by settlement or portion of real or personal estate, the value thereof shall be reckoned with that part of the surplus of the personal estate which shall remain to be distributed among the children.” (2 R. S., 97, § 76.) By 1 Revised Statutes, 754, section 23, after using similar language, it is provided that the value of such advancement shall be reckoned “ as part of the real and personal estate of such intestate, descendible to his heirs, a/nd to be distributed to his next of 1cm, according to law.” The next section provides for making “ all the shares of the children in such real and personal estate and advancement to .be equal as near as can be estimated.” (See, also, 1 R. S., 737, § 127.)

I think the purposes to be accomplished by and the reason for the law of advancements as contained in our Revised Statutes are alike hostile to the appellant’s view. They were made with reference to the statute of distribution in ease of intestacy and do not, in terms, contemplate any different rule. The word children stands in a collective sense for grandchildren when the justice and reason of the cáse requires it. (4 Kent’s Com., 419, and cases cited.) The precise question presented in this case has not been decided in this State, but I am cited to Power’s Appeal (63 Penn. St., 443-4); Dutch's Appeal (57 id., 465), as authorities under a similar statute for the construction above given to the New York statute. I conclude the grandchildren of the intestate have the right to insist upon advancements being brought into hotchpot, and that they shall share in the distribution with reference thereto.

No error is seen in charging the administrators with the forty-eight dollars commissions, earned and received by the intestate in his lifetime as the agent of the State of Connecticut.

No other questions are presented for consideration by the appellants. The judgment is therefore affirmed with costs against appellants.

Learned, P. L, and Bocees, J., concurred.

Judgment affirmed with costs against the appellants.


author: Per Curiam:

text:
    THE HUDSON RIVER BRIDGE COMPANY, Appellant, v. JOHN A. PATTERSON and others, Respondents.

      Toll bridge — taxation of real estate of.

    The real estate of a toll bridge is subject to assessment and taxation in the town in which it is situated.

      Oswego Stwreh, Oonvpany v. BoUowa/y (21 N. V., 152) followed, and Utica Ootton Manvfact/ming Oom/pa/ny v. Supwrisors (1 Barb. Oh., 117) overruled.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The referee found that plaintiff was a corporation duly created and organized by and under an act of the legislature of this State, passed April 9, 1856 (chap. 146, Laws of 1856); that under the authority conferred by said act, plaintiff had acquired title to lands in the town of Greenbush, in the county of Rensselaer', and had erected a bridge over and across the Hudson river, the westerly portion of which is in the city and county of Albany, the easterly portion, from the center of the channel of the river to about low-water mark, is in the town of North Greenbush, Rensselaer county, and the residue or portion east of low-water mark is in the town of Greenbush aforesaid; that a portion of the lands owned by plaintiff in said town of Greenbush is used and occupied for and by the bridge' and its approaches, but a portion of said lands is not so used. Plaintiff, when parts of lots were needed and required for the purpose of the bridge, purchased the whole of said lots, and whatever use was made of the parts of said lots not required for bridge purposes, if any, was separate and independent of the bridge; that up to the time of the assessment and taxation hereinafter set forth the said bridge had been -used exclusively for passage over and across it of railroad trains; that there was no carriage or foot-way for the accommodation of the general public, and the passage of the bridge by persons on foot was forbidden to all except the servants and employes of the railroad companies whose trains crossed the bridge, and the only compensation for the use of the bridge was paid by the said railroad companies; that plaintiff received compensation from the said railroad companies, but under what agreement or how the amount of the compensation was fixed and determined did not appear; that the compensation so collected and received by plaintiff was paid to it at the office of its treasurer in the city of Albany; that on December 5, 1872, the defendants herein were the legally elected and acting trustees, and members of the board of education of a joint school district, formed partly of lands situate in said town of Greenbush, and partly of lands situate in said town of North Greenbush, known as “ Union Free School District No. 6 of the town of North Greenbush, county of Rensselaer ; ” that as such trustees, and for the puipose of collecting a tax legally and properly voted, the said defendants made out an assessment list or tax roll, and annexed thereto their warrant in due form, directed to the collector of said school district, directing him to collect of the taxable inhabitants and corporations named, and of the owners of real estate described in said list, the several sums of tax carried out in the last column opposite each name and description; that there were described therein parts of the aforesaid lots belonging to the plaintiff; that defendant Dollar, under and by virtue of said warrant, on or about June 4, 1873, levied upon a steam tugboat belonging to said plaintiff for tbe purpose of collecting tbe sums so carried out as tax upon said roll opposite the description of plaintiff’s bridge and real estate as aforesaid, wbicb tax bad not been paid by plaintiff, or any item or portion thereof, and after having duly advertised tbe same, and on tbe 12th day of June, 1873, tbe said collector sold said tugboat at public auction for tbe purpose of collecting said tax.

      Matthew Hale, for tbe appellant.

      Amasa J. Parker, for tbe respondents.
   Per Curiam:

"We think tbe real estate of a toll-bridge should be assessed in tbe town in wbicb it is situated. Such is tbe rule in regard to all incorporated companies (1 R. S., 389, § 6), and we do not think tbe concluding clause of that section was intended to create a different rule in regard to toll-bridges. ~We think that clause refers to tbe place of taxation of tbe personal property, and to that only. There is no apparent reason why a different mode of assessment should prevail in case of toll-bridges. Tbe views of tbe chancellor in Utica Cotton Manufacturing Company v. Supervisors (1 Barb. Ch., 447), and of Judge Denio in Oswego Starch Company v. Dolloway (21 N. Y., 452) on this subject are in direct conflict, and both are obiter. We prefer to follow Judge Denio. In chapter 259, Laws of 1848, section 14 (3 Edm. St., 571) tbe legislature has so declared tbe law as to all bridges built under that act. It seems to be some confirmation of our view, since it would be very extraordinary to have one rule of taxation for bridges built under that act and a different rule for all other bridges.

In all other respects we concur in tbe views of tbe learned referee as expressed in his opinion. This bridge is not a toll-bridge within tbe meaning and intent of tbe statute. Tbe lands in Greenbush, not used or necessary for tbe construction or maintenance of tbe bridge, were bable to assessment and taxation in tbe same manner and to tbe same extent that a farm, or store, or bouse and lot owned by tbe company would be assessed and taxed. Tbe migration of tbe treasurer, the removal of the toll-house or the principal business office from one side of a stream to the other, or from one town to another, would not and ought not to cany along the right of taxation of the houses, lots or vacant real estate.

This suit is brought to determine the question where the real estate of the plaintiff should be taxed. It is important that its right in that respect should be authoritatively declared, so that double taxation by conflicting powers claiming jurisdiction should not embarrass and do injustice. We have, therefore, preferred to put our decision upon the broad basis of absolute right to tax the real estate in the town or ward where situated. If we shall be sustained upon appeal to the Court of Appeals, that will be an end of ail doubt and uncertainty.

Por the reasons given the judgment should be affirmed, with costs.

Present — Bookes and Boardman, JJ.; Learned, P. J., taking no part.

Judgment affirmed, with costs.


author: Per Owriam:

text:
    ANDREW SPARROWHAWK, Respondent, v. EMMA E. SPARROWHAWK, Appellant.

      Action for divorce — report of referee in —is not a special verdict — costs of application for judgment on.

    In this action brought for a divorce on the ground of adultery, the referee, to whom it was referred to take and report the evidence, reported in favor of the defendant. Thereafter, the defendant moved for and obtained a judgment in her favor, and then sought to tax twenty dollars for application for judgment before argument and forty dollars for argument thereon. SM, that the application, was rightly refused.
    Appeal from an order denying a motion for a readjustment of defendant’s costs herein. This action was for a divorce a vinculo, and was commenced by service of summons and complaint March 27, 1875. Answer was duly served, and by consent the action was referred to Stillman Eoote, Esq., as referee, to take and report the evidence. Hearing was duly had before the referee, who made a report in favor of defendant August 8, 1876, which report was filed with the clerk of St. Lawrence county. Motion was made at Special Term for judgment on the referee’s report before Justice Potter at Whitehall, September 12, 1876, and an order granted by said justice ordering judgment according to the facts found by the referee, with costs to be taxed. Said order was duly filed with the clerk of St. Lawrence county, and a bill of costs for defendant sent said clerk with due notice of taxation. Among the items of said bill of costs were, viz.: “Application for judgment on special verdict before argument, twenty dollars“ application for judgment on special verdict for argument, forty dollars.” The said clerk refused to tax said items and struck the same from defendant’s costs and disallowed them in the judgment entered therein.
    Defendant made a motion at a Special Term of this court, held by Justice Potter at Whitehall, January 9, 1877, for an order directing the clerk of St. Lawrence county to set aside the adjustment as then made and to correct the same by adding to defendant’s bill of costs said items, of twenty dollars and forty dollars stricken therefrom. Said motion was duly heard at said Special Term and an order made denying said motion, which order was filed and entered January 17, 1877. This appeal is from said order.

      Vary dk Stone, for the appellant.

      Ohas. G. Myers, for the respondent.
   Per Owriam:

There is no sanction for the position of the defendant either in the Code or reports. In no case is it believed that the successful party may tax the twenty dollars before argument, and forty dollars for argument on application for final judgment upon the coming in of the referee’s report giving the evidence and the facts. The defendant has been allowed fifteen dollars before trial, and thirty dollars for trial of the issues between the parties. Her present claim, if allowed, would give her sixty dollars extra for the argument of the legal questions presented by the case. Both allowances cannot be made for a single trial and argument and judgment,

The defendant’s theory that the referee’s report is a special verdict is unfounded. “A special verdict is that by which theywy find the facts only, leaving the judgment to the court.” (Code, § 260.) That chapter of the Code relates only to trial by jury. Such a special verdict gives the right to costs before argument twenty dollars, and for argument forty dollars, on application for judgment under subdivision 5 of section 307 of the Code. This was not a special verdict, and the motion was not founded upon a special verdict. It was the hearing at Special Term required by Rule 92 after the trial of the issue or upon the coming in of the proofs. By the same rule it is provided: “No judgment in an action for a divorce shall be entered except upon a special direction of the court.” It evidently contemplates that the proceedings before the referee and the motion for judgment together, constitute a trial of the issues joined between the parties for which costs may be taxed, as in fact they have been, by the clerk in this case.

The papers on which this appeal is founded are very defective in not giving the order of reference, the report of the referee, and the order for judgment upon which the motion at Special Term was made. Enough, however, appears to satify this court that neither the clerk nor the learned judge at Special Term erred in refusing to the defendant the sixty dollars costs before and for argument on application for judgment.

The order of the Special Term is therefore affirmed, but as the parties are husband and wife such affirmance is without costs.

Learned, P. J., and Bookes, L, concurred.

Order affirmed, without costs.


author: Learned, P. J.:

text:
    MARY McGUFFIN, Respondent, v. THE CITY OF COHOES, Appellant.

      Gha/rter of OoJtoes — cJiwp. 912 of 1869 — limitation of actions against — negligence.
    Section 5 of title 18 of the charter of Cohoes (chap. 912 of 1869) providing that “ no action against the city on a contract, obligation or liability, express or implied, shall be commenced, except within one year after the cause of such action shall have accrued,” construed with reference to the other provisions of that title, does not apply to an action to recover damages for injuries occasioned by the negligence of the defendant.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover damages alleged to have been sustained by injuries occasioned through the negligence of the defendant in not keeping its sidewalks in good repair.
    The defense was that the action had not been commenced within one year’ after the cause of action had accrued as required by the charter of the city (chap. 912 of 1869).

      Matthew Hale, for the appellant.

      JSt. P. Hmmcm, for the respondent.
   Learned, P. J.:

This case affords another illustration of the evil which arises from carelessly drawn statutes. The legislature did not clearly express their meaning, if they had any, on the question now presented. That is, whether the words, “No action against the city on a contract, obligation or liability, express or implied, shall be commenced except within one year after the cause of such action shall have accrued,” apply to an action to recover damages for injuries occasioned by the negligence of the defendants.

The words are found in the charter, Session Laws 1869, chapter 912, title 13, section 5. The title is, “ City Expenditures.” Section 1, says: “No account, claim or demand shall be audited, allowed or paid by the common council, unless the same was duly authorized by vote.” It is plain, then, that in this section the words, “account, claim or demand” are limited to matters of contract, previously authorized by vote. Although the word “ demand ” is often of the most general signification, it does not, in this instance, include a right of action for negligence, because such a right of action could not be said to have been “ authorized by vote.” This is also seen by the preceding part of the section, which forbids the contracting of any debts without special authority from the common council.

Section 5 begins by saying: “All accounts, claims and demands against the city must be presented to the common council in writing.” It is a reasonable construction to understand the words “ accounts, claims and demands ” in this section to have the same meaning with the words “ account, claim or demand ” in section 1 of the same title. And these have been already shown to apply solely to matters of contract “ duly authorized by vote.” The section then speaks of “ the several items; ” of an affidavit showing the rendering of services, or making disbursements, etc., and that no item has been audited. This is language applicable rather to matters of contract and of account than to a claim for damages by reason of tort. The claim is to be referred to the “ appropriate committee.” This indicates that it is a claim arising out of the lawful action of the city; not out of its neglect of duty.

The disallowance of any claim, or of a part thereof, is made a bar unless an action be brought within six months from the auditing. And then the section concludes with the words above quoted, which are the city’s defense in this case. And the question comes up, does a fair construction of this whole title show that these words apply to actions for tort like the present. The answer must depend on the general scope' of the title. As has been shown above, this seems to refer to the ordinary and proper business of the city; to its “expenditures;” its necessary contracts, express or implied ; its liabilities incurred in the due discharge of municipal business. It does not seem to refer to its malfeasance; its neglect of duties; its torts.

True, a neglect of duty causes a “ liability; ” and even “ obligations,” according to the civilians, arise from tort. But, in this place, these words must be construed according to the subject-matter of the whole title. It is not to be supposed that they were to have a wider extent than the rest of the title indicates.

So far as the construction already given to a charter, similar but not identical in language, affords any light, the case of Howell v. Buffalo (15 N. Y., 512) supports the view above taken.

It may be said truly that this construction makes the word “ liability ” surplusage. That is nothing unusual in statutes. On the construction claimed by the defendants, no effect can be given to the whole clause: “ on a contract, obligation or liability, express or implied.” It would have been enough to say: “No action against the city shall be commenced except,” etc. There was no reason for the qualifying clause, if actions of all kinds were to be barred by this provision. Both the plaintiff and the defendant refer to section 91 of the Code; yet the decision of this question should depend not on what the words “obligation and liability” would include, or do include, in some other statute, and in one treating of the subject of limitations. It should rather depend on what they are fairly to be supposed to include, in this place, taking them in connection with the subject of this legislation, the special topic of this title.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.