author: Gray, J.

text:
    Charles E. Crouse, Survivor, App'lt, v. The First Nat. B'k of Penn Yan, Resp't.

      (Court of Appeals,

      Filed February 28, 1893.)

    Banks—Negligence.
    Plaintiff’s firm drew a sight draft, " protest waived,” on one D., for a portion of the account due from him, and sent the same to defendant for collection. As D. lived in the country some distance from the hank, defendant according to its custom mailed notice of the draft to him, and some days later he accepted it and agreed to' pay the same in a few days, and shortly afterwards made an assignment. Held, that the hank was not liable, as there was nothing in the relations of plaintiff’s firm with it which made it incumbent upon the hank to exercise other than that usual and ordinary diligence in the performance of the duty of the assumed agency which the circumstances called for.
    Appeal from judgment of the supreme court, general term, fourth department, reversing judgment entered upon report of referee in favor of plaintiff.
    Dinehart being indebted to the firm of Crouse & Walrath in the sum of $800, for goods sold, the firm made a draft in the following form, viz.:
    “ Syracuse, N. Y, February 14, 1886.
    “At sight (protest waived), pay to order of G. EL Eapham Esq., cashier, four hundred dollars, value received.
    “ (Signed) Crouse & Walrath.
    “ To Peter M. Dinehart, Esq.
    “Friend, N. Y.”
    On the day of its date this draft was mailed to the defendant, a bank at Penn Yan, N. Y., for collection. Dinehart lived in the country at some distance from Penn Yan. Eapham testified that upon the receipt of the draft, on February 15th, he notified Dinehart by mail. On February 21st Dinehart came into the bank, and the draft being presented to him, he said he would pay it next week, and he accepted it across its lace, making it payable at the defendant bank. On the same day Lapham wrote Crouse ■& Walrath, acknowledging their letter and the draft, and stating it was “payable sometime next week. Says this is the best he can do.” Subsequently a clerk was sent by the firm to the bank, who inquired about the draft. He said he was told that “it was all right,” but could not remember being told of Dinehart’s acceptance. Lapham, the cashier, however, testifies that he told him of the acceptance and of Dinehart’s promise to pay it the next week. On March 6th Dinehart made an assignment of his property for the benefit of his creditors. On March 3d Crouse & Walrath wrote to the bank and asked if Dinehart had made arrangements to pay his draft. On March 6th the bank answered,, informing them of Dinehart’s assignment, and as to the assets and i liabilities. On March 7th the draft was returned to the firm, and in September following the present action was commenced to recover damages, measured by the value of the draft, upon the ground of the bank’s negligence in the matter of its collection.
    The referee before whom the trial of the action was had reported in favor of the plaintiff, finding the defendant guilty of negligence in failing to present the draft for acceptance in due time, or to make proper efforts to collect it after acceptance and that, by reason of its negligence, the drawers were deprived of the opportunity to collect the draft before the drawee’s assignment. He found that the drawers had sustained damages to the .amount of the draft, with interest, and directed judgment accordingly. Upon appeal to the general term, that court reversed the judgment, and ordered a new trial, and from that order the plaintiff has appealed to this court, with the usual stipulation for judgment absolute.

      Thomas Hogan, for app’lt;

      John T. Knox, for resp’t.

       Affirming 39 St. Rep., 654.

   Gray, J.

We think the reversal of the judgment was right. The facts disclosed by the evidence did not make out a case of negligence, nor did they show that the plaintiff’s firm had suffered any damage by reason of anything on the part of the bank. The evidence was wholly insufficient to support the referee’s findings in those respects.

As we read this record, no inference was permissible from the evidence that the bank had failed in any duty towards the plaintiff’s firm. The draft in question was merely a convenient mode adopted by the firm of Crouse & Walrath to collect a portion of a debt due them from Dinehart, and the defendant bank was made their agent for the mere purpose of collection. Dinehart lived in the country, at some distance from Penn Yan, and, as it was testified to without objection, the custom of the bank in that place, where they held drafts upon parties residing in the country, was to notify them by mail, unless especial instructions were given to present the paper, in which case a notary would be employed. Here, the plaintiff’s firm had expressly waived protest of the draft, and there was no requirement for presentment by a notary or for any extraordinary course with respect to it.

There was no question in the case of holding other parties, and there was nothing in the relations of plaintiff’s firm, with the defendant which made it incumbent upon the bank to exercise other than that usual and ordinary diligence in the performance of the duty of the assumed agency which the circumstances called for. The plaintiff’s firm were notified by letter of the draft being payable in the following week, as the best that Dinehart could do about it; their clerk was sent to inquire about it, and the draft was not only left with the bank with no further instructions about it, but, on March 3d, they wrote, asking if Dinehart had made arrangements to pay the draft, thus recognizing and tacitly ratifying what the bank had done. Not only was the bank not bound to do more than it had done, but it is difficult to see what more it could have done. It was without especial instructions, and the plaintiff’s firm were sufficiently apprised of the situation to make it incumbent upon them to further instruct the bank, if they de„sired it to do more. Knowing of the nonpayment of the draft, it behooved them to act in the matter for their own interests. The strict rules which usually are applied with respect to commercial paper in matters of presentment, demand and notice, do not apply to such a case as this, as the general term very correctly observe in their opinion. The defendant acted as the plaintiff’s agent to collect a part of a debt, and, in view of the circumstances and with the knowledge chargeable to the principal as to its conduct of the matter, it could not be inferred from the evidence that it was guilty of any negligence in the discharge of its duty.

It may be added that there was an utter lack of evidence to afford a presumption of damage to the plaintiff’s firm from the conduct of the defendant. No inference was possible from the evidence that there was a reasonable probability that the debt would have been paid if Dinehart had been pressed for payment from the time when the draft was presented until he assigned.

The order appealed from should be affirmed, and judgment absolute ordered for the defendant on the stipulation, with costs in all the courts.

All concur.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    William S. Gridley, Resp't, v. The College of St. Francis Xavier, App'lt.

      (Court of Appeals,

      Filed February 28, 1893.)

    1. Appeal—New tbial.
    An exception to the denial of a motion for a new trial upon the minutes of the trial judge brings no question for review in this court.
    3. Lunatics—Idiot—Jubisdiction.
    If notice of the execution of a writ inquirendo is given to an idiot there is no ground for saying that the proceedings are absolutely void, although no notice was given of the subsequent proceedings, confirming the findings of the jury and appointing the committee.

      3. Same—N. Y. Common pleas—Jurisdiction.
    To sustain the jurisdiction of a proceeding de idiota inquirendo in the court of common pleas of the city of New York, upon a collateral attack, it may be presumed that all the proper notices were served upon the idiot, and even that she was present in court at the time any proceedings were taken, in the absence of anything in the record showing that she was not present in court or that the notices were not served.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      George Bliss, for app’lt;

      Howard A. Sperry, for resp’

       Affirming 45 St. Rep., 1.

   Earl, J.

In 1873, Ann Eliza Owens owned certain real estate, situate in the city of Mew York, subject to the life estate of her mother, Ann Owens. Ann Eliza was an idiot, and in the year mentioned her mother instituted in the court of common pleas of the city and county of Mew York a proceeding de idiota inquirendo for the purpose of having her declared incompetent to take care of herself and her property. That proceeding was carried to a. conclusion in that court. She was found to be an idiot, and a committee of her person and estate was appointed. Some years thereafter she conveyed her real estate to the defendant. In April, 1888, Ann Owens, her mother, leased the real estate for five years from the first day of May following. Ann Eliza died in June, 1890, and a few days thereafter her mother died. After the death of Ann Owens the lessee paid rent for nearly a year to the defendant, supposing the deed from Ann Eliza to it was valid and that it had the title to the real estate and thus the right to receive the rent, both he and it being then ignorant that a committee had been appointed for Ann Eliza.

The lessee claiming that the moneys thus paid to the defendant were paid by mistake, assigned his claim for them to the plaintiff, who demanded the same of the defendant. It refused to refund the moneys thus paid, and then the plaintiff commenced this action to recover them. He recovered, and the defendant has appealed from the judgment entered in his favor.

In this court we can consider only exceptions taken at the trial.

The plaintiff gave evidence tending to show that this money was paid under a mistake of fact as alleged by him. The defendant made no motion for a nonsuit upon the trial, made no request to the trial judge to charge the jury, and took no exception to the charge as made. The record contains hut three exceptions.

The assignment by the lessee to the plaintiff of the cause of action was dated on the 6th day of June, 1891, and was duly acknowledged. The plaintiff offered it in evidence without any further proof of its execution. Defendant’s counsel objected to the assignment as evidence on the ground that it was not an instrument which could be proved by the acknowledgment. It is not now claimed that that objection was well founded. Code, § 937.

After the rendition of the verdict, defendant’s counsel moved for a new trial upon the minutes of the trial judge, and that motian was denied, and the defendant’s counsel excepted to the decision. That exception, as we have frequently held, presents no question for review in this court. It was not taken during the trial, but after the trial was completed.

When the proceedings leading to the appointment of the committee were introduced, the defendant’s counsel objected to them on the ground that, on the face of the papers, the court never acquired any jurisdiction of the proceedings. The objection was overruled and the papers were received in evidence. It is now claimed, and quite strenuously argued by the counsel for the defendant, that the proceedings were utterly invalid because no-notice of them was given to Ann Eliza, the idiot. There are two-answers to this objection. The court of common pleas, upon the petition of Ann Owens, the mother, appointed commissioners de idiota inquirendo, and, in the order appointing them, required that-previous notice of the time and place of the execution of the writ-should be given to Ann Eliza Owens, and the person, or persons,, having the care of her. It was not necessary that she should have notice of the application for the commission. Without hearing her and without notice to her, the court could constitute a tribunal which was to make inquiry into her mental condition. In pursuance of the order, a time and place for the execution of the commission was appointed, and a jury was summoned by the sheriff, and it appears by proof contained in the record of those proceedings that the idiot had notice of the time and place of the execution of the commission. The record does not disclose that she had notice of any of the subsequent proceedings confirming the findings of the jury and appointing the committee. We do not deem it important now to determine whether the proceedings would be absolutely void and a nullity if no notice whatever had been given to the idiot of any of the proceedings instituted upon the petition of her mother, who had charge of her. They would have been invalid undoubtedly in the sense that they-would have been set aside as irregular upon the application of any person who had a right to be heard, as we held in Matter of Blewitt, 131 N. Y., 546; 43 St. Rep., 926. But if notice was necessary, the notice given of the time and place of the execution of the writ was sufficient to give the court jurisdiction of the matter. The person proceeded against by such a writ should have notice of the motion to confirm the finding of the j ury and for the appointment of the committee, and if such notice be not given upon the motion of any person entitled to be heard, a court having jurisdiction of the matter may set those proceedings aside.

But where the person proceeded against has had notice of the vital part of the proceeding, to wit, the execution of the writ, there is no ground for saying that the proceedings are absolutely void But there is still another answer to this objection. The court of common pleas of the city and county of Xew York is, for the purpose of such a proceeding, a court of general jurisdiction, Constitution, art. 6, § 12; Code, § 263, subd. 8, and, therefore, to uphold its jurisdiction, it may be presumed that all the proper notices were served upon the idiot, and even that she was present in court at the time any proceeding was taken, in the absence of anything.in the record showing that she was not present in court or that the notices were not served. It is one of the maxims of the law that “ nothing shall be intended to be out of the jurisdiction of a superior court but that which expressly appears to be so.” Hence, though the existence of any jurisdictional fact may not be affirmed upon the record, it will be presumed, upon a collateral attack, that the court, if of general jurisdiction, has acted correctly and with due authority, and its judgment should be as valid as though every fact necessary to jurisdiction affirmatively appeared. Freeman on Judgments, § 124. It was held in Foot v. Stevens, 17 Wend., 483, that the courts of common pleas of this state are courts of general jurisdiction, and upon a motion for a new trial it will be intended, in support of a judgment rendered in the court of common pleas, where nothing to the contrary is shown, that the court had jurisdiction of the person of the defendant, although there was no averment in the record showing the jurisdictional facts. This is a collateral attack upon the idiocy proceeding in the court of common pleas. It does , not appear from the record that all proper notices were not given, and no proof was offered upon the trial to show that the court did not, in fact, acquire jurisdiction.

Therefore, the objection made by the counsel to the proceedings was not well taken, and it follows that the defendant did not obtain title to the real estate by the deed from the idiot, and that the judgment should be affirmed, with costs.

All concur.


author: Finch, J.

text:
    Orin S. Bacon, Jr., App'lt, v. Morris W. Hanna. Impl'd, Resp't.

      (Court of Appeals,

      Filed February 28, 1893.)

    1. Bills and notes—Protest.
    A bank notary, relying on a business directory, mailed a notice of protest to an indorser addressed to the wrong town; the indorser was, to the knowledge of the notary, the supervisor of the adjoining town, where he received his mail, and his proper address conld have been easily ascertained upon inquiry. About a month later the note was sent to the proper address and received. Held, that while the error might excuse the notary, such notice would not charge the indorser.
    3. Same—Directory.
    The mere consulting of a directory is not deemed “ the best information obtained by diligent inquiry ” required by the statute.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment directed by the court, dismissing plaintiff’s complaint.

      Jno. Gillette, for app’lt;

      Edwin Hides, for resp’t.

       Affirming 43 St. Rep., 906.

   Finch, J.

The complaint involved in this appeal respects the ruling of the court, which determined, as matter of law, that due diligence had not been exercised in giving notice of protest to the indorser, and refusing to submit the question, as one of fact, to the decision of the jury. The general term sustained the ruling, and we are inclined to approve it, as justified by the facts.

The indorser lived in the town of Hopewell, and his postoffice address was at Chapinville, in that town. He had resided in the same place for nineteen years, and at the time of the maturity of the note was supervisor of his town, which adjoined the village of Canandaigua, and had held that office for two years. His home was four miles east of the east line of the village, and the notary who served the notice had been at his house and consequently knew of its location. He knew, also, that the indorser was supervisor of the town of Hopewell, and had mailed a notice of protest of a note preceding the one in suit, and of which the latter was a renewal, to the same indorser at Chapinville. Inquiry of the maker of the note at the postoffice in Canandaigua, or of business men in that village, would have disclosed the residence of the indorser easily and correctly. What the notary did was to mail a notice directed to the indorsor at Canandaigua, under the provi sions of the act of 1857, chap. 416, § 3, which permits such notice by mail where the indorser lives in the same city or town, or has a place of business therein, or has indicated such residence by a memorandum added to his signature, or where, “from the best information obtained from diligent inquiry,” he is “ reputed there to reside or have a place of business. We may assume that the notary may have forgotten for the moment his previous action in mailing a notice to Chapinville, and was in doubt about the residence of the indorser, although with the knowledge which he had and some reasonable reflection upon the subject it would seem that his memory might not have failed him, but his only effort to solve the doubt was to look into a directory of Canandaigua to ascertain the truth. He there found this entry : “ Hanna, Morris W., 158 Canandaigua.” The record does not show whether or not there is a street in the village bearing its name. If there is, inquiry at that number would have disclosed the error. If there is not, the entry was sufficiently odd and peculiar to make the notary’s alleged understanding that the figures meant number of acres owned in Canandaigua inexcusable without some further inquiry. Prior to the act of 1857 service upon the indorser residing in the same town at his place of residence therein was required. The change permitting instead a service by mail was carefully guarded and limited. When the notary relied upon a “ reputed ” residence he was required to act from “ the best information obtained by diligent inquiry.” Merely looking into a directory is not enough. The sources of error in that process are too many and too great. Such books are accurate enough in a general way, and convenient as an aid or assistance, but they are private ventures, created by irresponsible parties and depending upon information gathered as cheaply as possible and by unknown agents. Their help may be invoked, but, as was said in Lawrence v. Miller, 16 N. Y., 231, their error may excuse the notary, but will not charge the defendant. Merely consulting them should not be deemed “ the best information obtained by diligent inquiry.” Greenwich Bank v. De Groot, 7 Hun, 210; Baer v. Leppert, 12 id., 516.-These cases differ somewhat in their facts, but clearly indicate that bare reliance upon a directory is not sufficient diligence, and that should certainly be the rule upon facts such as are disclosed in the present case.

The judgment should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Paul F. O'Neill, Resp't, v. Emory M. Van Tassell, App'lt.

      (Court of Appeals,

      Filed February 28, 1893.)

    Vendor and purchaser—Encumbrances—Party wall.
    A contract for the sale of real estate recited that the north wall was a party wall, and bound the vendor to give a deed free from all encumbrances. It appeared that the south wall was also subject to a party wall agreement. Held, that the statement that the northerly wall was a party wall clearly signified that the other walls were independent structures, and that the covenant running with the land was a perpetual encumbrance which justified the purchaser in refusing to accept the deed.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.
    TFto. H. Arnoux, for app’Jt;

      Charles B. Miller, for resp’t.

       Affirming 44 St. Rep., 536.

   Per Curiam.

The plaintiff has recovered the amount of a deposit made upon the purchase of real property with the expense incurred in the examination of the title, upon the ground of the inability of the defendant vendor to execute to the plaintiff a proper deed, conveying and assuring to him the fee simple of the premises, free from all encumbrances. The defendant denies that his title is defective, or encumbered, and asks, by way of counterclaim, judgment for a specific performance, alleging all the material facts entitling him to such relief. The property which was the subject of the sale consisted of two houses and lots, Nos. 22 and 24 Renwick street, New York city. The plaintiff objected to the title (1) on account of a material discrepancy between the actual dimensions of the lots and the dimensions given in the contract; (2) because of the existence of a party wall with a perpetual covenant running with the land, which required the owner to share equally with the adjoining owner the expenses of repairing or rebuilding the wall, and that whenever rebuilt it should be on the same spot, of the same size, and of similar materials as it was on July 2, 1873; and (3) for the reason that the premises were charged ratably with other lots with the payment of the expenses of maintaining an alley for their common benefit, and of the taxes and assessments imposed thereon.

We deem it necessary only to consider the second objection, which relates to the existence of the party wall and its accompanying covenants. The agreement, after describing the lot, states: “The northerly wall of number twenty-four being a party wall.” We think that this was equivalent to a representation that the southerly wall of number twenty-two was not a party wall. Such would be the ordinary understanding of the parties from the language employed in the connection in which it was used. It very clearly indicates that it was the subject of the negotiations of the parties, and that it was considered to be a material fact by them. The use of the phrase is entirely meaningless and superfluous, unless it is to be construed as a limitation of the existence of encumbrances of this character to a single party wall. The dimensions of the lots given also indicate what was in the minds of the parties in this respect. The forty-one feet frontage cannot be obtained, even approximately, without including the whole of the southerly wall. It is evident from the entire scope of the agreement that the vendor stipulated that there was only one party wall on the premises, and that was the northerly wall of number twenty-four. This case is materially different from Hendricks v. Stark, 37 N. Y., 106, upon which defendant relies. In that case there was no representation in the contract upon the subject; the dimensions of the lot included the center of the walls; it was plainly discernible from an inspection of the premises that the outside walls were party walls; and, most important of all, the party wall agreement in that case contained no covenant to rebuild or repair, and related solely to the existing wall so long as it might stand. In that case the court says: “ There was nothing in the description of the premises in question, as the 1 Collins Hotel,’ which imported ex vi termini that the walls were of this or a different character.” Here the statement that the northerly wall of one of the houses is a party wall, by the force of the expression used, very clearly signifies that the other walls are independent structures. It also appears that an inspection of the premises would not disclose the existence of the southerly party wall. But the chief point of distinction consists in the fact that there is here a covenant running with the land which compels the owner to rebuild and repair, and when rebuilt it must be on the same spot, of the same size, and of similar materials as when originally constructed. Such a covenant cannot be regarded in any other light than as a perpetual encumbrance, which in the case of urban property restricts its free use and enjoyment, and may seriously embarrass the owner in respect to its future improvement. If he desired to enlarge or rebuild, he might be compelled to build an entirely independent wall upon his own premises, and thus further reduce the available space of his own lot, and still be liable upon his continuing obligation to repair or rebuild the party wall.

The judgment and order must be affirmed, with costs.

All concur.


text:
    Anna C. Sperb, Resp't, v. The Metropolitan Elevated Railway Co. et al., App'lts. William Sperb, Jr., Resp't, v. The Metropolitan Elevated Railway Co. et al., App'lts.

      (Court of Appeals,

      Filed February 28, 1893.)
    1. Railboad—Elevated—Damages.
    The referee, in an action for damages caused by the erection of an elevated railroad, awarded the same, although he found that the rent of the premises fell prior to the erection of the railroad and increased thereafter, and that the operation of the railroad brought people to plaintiff's vicinity and was advantageous to and did produce a special benefit to the same for business purposes. Held, error; that under the evidence in the case no damage was shown.
    2. Same.
    The benefits resulting from the erection of an elevated railroad to the business portion of the premises should be offset against any consequential damages accruing to the said property from the maintenance and operation of the said railroad in front thereof.
    3. Same.
    One claiming damages for the erection of an elevated railroad is not entitled to recover any greater sum as damages to the use of the premises in suit than the net amount of the consequential injuries thereto after setting off the value of the special benefit accruing to the said property from said railroad against any injury and inconvenience therefrom.
    Appeals from judgments of the New York superior court, general term, affirming judgments in favor of plaintiffs entered upon reports of referee.

      Samuel Blythe Rogers, for app’lts;

      Edwin M. Felt, for resp’ts.

       Reversing 43 St. Rep., 972.

       Reversing 44 St. Rep., 216.

   Earl, J.

William Sperb, Jr., owns a lot No. 926 and Annie C. Sperb lot No. 924 Sixth avenue, in the city of New York. Both lots are near Fifty-second street, and each party brought an action to recover damages on account of the construction, maintenance and operation of the elevated railway through the avenue, and prayed judgment for damages and an injunction. Each recovered $1,457 for rental damages and $2,350 for fee damages. The findings in both actions are substantially the same. The damages were awarded, although the referee found “that in the year 1875, and before the defendants’ said elevated railroad structure was erected in front thereof, the rent of said premises known as No. 926 Sixth avenue fell to the sum of $2,400; that the present rentals produced by said premises known as No. 926 Sixth avenue are $2,784 per annum; that the rentals of the stores in said premises known as No. 926 Sixth avenue have increased since the maintenance and operation of the defendants’ said railroad in front thereof forty per cent, and upwards; that the maintenance and operation of defendants’ said railroad on said Sixth avenue brings a large number of persons daily into the said Sixth avenue, in the immediate neighborhood of the premises known as No. 926 Sixth avenue, and increases the traffic in and upon the said Sixth avenue at this point; that the effect of the proximity of the defendants’ said railroad on the said Sixth avenue, in front of the premises known as No. 926 Sixth avenue, is advantageous to the business portion of said premises, and produces a special benefit to the same for business purposes.”

After a careful reading of the evidence we are not satisfied that the two lots received any damage whatever from the construction, maintenance and operation of the road. The learned referee may have reached his conclusion by the misapprehension and misapplication of the rules of law laid down by this court, particularly in Newman v. Elevated R. R. Co., 118 N. Y., 618; 30 St. Rep., 36, and Bohm v. The Same, 129 N. Y., 576; 42 St. Rep., 247. We are constrained to believe that he did by further noticing his refusal to find the following facts, as requested by the defendants:

11 That the easements, if any, appurtenant to plaintiff’s premises known as No. 926 Sixth avenue, and taken or interfered with by defendants’ railwajq besides any consequential damages, if any, to said premises from the taking of the same, have in themselves only a nominal value.”

And to make the following findings of law as requested by them:

“ That the benefits resulting from the defendants’ railroad to the business portion of the premises known as No. 926 Sixth avenue, and peculiar thereto, should be offset against any consequential damages accruing to the said property from the maintenance and operation of defendants’ said railroad in front thereof.”

“The plaintiff is not entitled to recover any greater sum as damages to the use of the premises in suit than the net amount of the consequential injury thereto after setting off the value of the special benefit accruing to the said property from the said railroad against any injury and inconvenience therefrom.”

These latter requests embody correct principles of law as laid down in the cases above cited, and were rendered pertinent by the findings of fact above quoted; and in view of the facts appearing in the record, we must infer that those principles were not properly applied by the referee, and that the defendants were deprived of the full benefit of them.

For these errors, the judgment in each case should, be reversed and a new trial granted, costs to abide event.

All concur.


author: Hykman, J.

text:
    Benjamin B. Strong, Resp't, v. Louisa A. Sheffield, Imp'ld, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Bills and notes—Indorsees.
    Defendant’s husband being indebted to plaintiff, for which he held a due bill, being called upon for further security, gave him a note payable to his order on demand, with defendant’s indorsement. Iteld, that such note was a non-negotiable one, and that defendant was not liable thereon as indorser;. that even if it was negotiable, she occupied the position of second indorser, and would not be liable to plaintiff in the absence of averment and proof that she indorsed for the purpose of procuring credit for the maker.
    2. Same—Considbeation—Q-uaeanty.
    As there was no consideration for the indorsement, defendant could not be held liable as maker or guarantor.
    (Baehaed, P. J., dissents.)
    Appeal from, judgment in favor of plaintiff, and from order denying motion for a new trial.

      Martin J. Keogh, for app’lt;

      Cornelius K Kene, for resp’t
   Hykman, J.

This action was commenced against the maker and indoréer of a promissory note in these words and figures:

“$400. , “New York, July 1, 1889.

“ On demand I promise to pay to the order of Benjamin B. Strong, four hundred dollars, with interest, at New Rochelle, N. Y. Value received.

“ Gr. R. Sheffield.”

The defendants are husband and wife, and the note was indorsed by Mrs. Sheffield, but it does not appear in the record how it was indorsed.

The husband answered at first, but subsequently withdrew his answer, and the case proceeded against the wife alone.

The action was commenced in the county court of Westchester county and tried there, and the plaintiff obtained a verdict there.

From the judgment entered upon the verdict and the order denying a motion for a new trial upon the minutes of the court, the defendant, Louisa A. Sheffield, has appealed to this court.

As we have seen, from the form of the note it is payable on demand to the order of the plaintiff and is non-negotiable.

It is to be observed at the outset that this action is against the maker and indorser of a promissory note and is based upon that instrument solely, and is brought by the payee named in the paper. He states no facts in his complaint except such as relate to the paper alone, and sets up no facts which impose any liability upon the parties except such as arises from the simple act of making and indorsing the paper.

He claims to occupy no relation to the appellant except such as arises from her indorsement, and demands no relief except what the law affords to the holder of a negotiable promissory note against an indorser thereof.

Even if the paper in suit was negotiable the action would fail. The note is payable to the plaintiff, and as to him the appellant occupies the position of second indorser. It is antagonistic to the principles of commercial law which have always prevailed in relation to negotiable paper to make a subsequent indorser liable to a preceding one.

The settled rule of law is exactly the reverse, and upon the face of this note, if negotiable, the plaintiff would be liable to the appellant. Bacon v. Burnham, 37 N. Y., 614 Coulter v. Richmond, 59 id., 478.

It is a fundamental principle of the law relating to commercial paper that no person can be held responsible as an indorser of a lion-negotiable promissory note. Roe v. Hallett, 34 Hun, 128; Griswold v. Slocum, 10 Barb., 402. And the rule applies with augmented force where, as here, the note is payable to the holder, because there is no possibility of raising the ordinary obligation of an indorser.

There are adjudicated cases of which Moore v. Cross, 23 Barb., 534, and Meyer v. Hibsher, 47 N. Y., 268, are examples, where notes payable to the order of the, plaintiff and indorsed by third parties under an agreement to become security for the maker and for the purpose of securing for him a credit, in which recoveries against the indorsers have been permitted in favor of the original payee. But such recoveries have been under complaints which set out all the facts, and made an action analogous to the old action on the case, in which the theory was that justice was to be administered according to the substantial rights of the parties.

It must be borne in mind, however, that such a course can only be adopted and such remedy be obtained against a party who has indorsed the note to procure a credit for the maker with "the payee, and we shall presently see that this note was indorsed under no such agreement or circumstances, and for no such purpose.

It may be remarked in passing that the county judge in his charge to the jury made some effort in that direction. He left it to the jury to find whether the appellant indorsed this note in question to induce the plaintiff to extend the time of payment of the antecedent debt of $400 due from her husband to him. But the effort was erroneous and unjustified either by the complaint or the evidence. There is not a word of testimony in the case respecting any extension of the time of payment of the original indebtedness.

The origin of this note according to the testimony of the plaintiff, which was not contradicted, was this: He said he transferred his stationery business to the husband of the appellant for $700, received $300 in cash and a due bill for the remainder of $400, upon which he was paid interest down to the date of this note. That he finally told the husband he must have some security for the money, and that he must give him a note with some good indorser as security, and when the husband asked him who he wanted for an indorser, he said he wanted his wife Louisa. The husband said he could not do that, because his wife was in business now in her own name, and if her creditors ascertained that she was indorsing notes it would injure her credit, and might injure her business. Thereupon he told the husband if he would give a note with his wife’s indorsement as further security for what he owed him, he would give him his word as a man, and an affidavit that he would not pay the note away, and would not place it in any bank, but would hold it until he wanted the money.

He further said that in a few days he saw the husband, who told him to draw up a note and Louisa would indorse it. That he drew up a note and gave it to him, and he took it away, and brought back this note, and said the other did not exactly suit, his wife, and he drew up this one, and he promised again to retain it until he wanted the money.

It thus appears that this note was given for the pre-existing debt of the husband to the payee, .that there was no stipulation for any extension of credit, and this note did not even suspend the right to sue, for it was payable on demand, and an action, could have been commenced upon it or upon the old note at any time.

This examination has been sufficient to show that no recovery can be sustained against this appellant, but it will be incomplete-without examination of another class of cases in which it has been held that a person who writes his name on the back of a non-, negotiable promissory note can be held as a maker or guarantor..

In the case of McMullen v. Rafferty, 89 N. Y., 458, Judge Earl, in writing the opinion of the court, said this: 11 As these were-non-negotiable notes, the defendant did not, in a commercial sense,, become an indorser of them with the rights and liabilities of a simple indorser. But he can be held as a maker of the notes or-as a guarantor of their payment.”- And cites the case of Cromwell v. Hewitt, 40 N. Y., 491, for his authority.

Turning to the latter case we find that the action was brought', to charge the defendant as the guarantor of two non-negotiable notes made by William Ryan payable to Richard Hewitt, and indorsed by James R. Hewitt and Richard Hewitt. James R. Hewitt, was originally made a defendant, but the action was discontinued as to him before the trial. One of the plaintiffs testified that James-R. Hewitt, the defendant, was indebted to them, and it was understood between them when these notes were passed over by him in. payment to them, that they were taken solely upon his responsibility and that he assured them the notes should be paid.

The action, therefore, was against the payee in the notes who> had indorsed them over to the plaintiffs in payment of his indebtedness to them, and the complaint was framed to charge him as the guarantor of the notes. That case does not aid the plaintiff here.

In the case of Jaffray v. Brown, 74 N. Y., 394, the note was given by the maker to the plaintiffs for goods sold to him by them, and was payable to their order, they subsequently called u]3on him for further security for his debt and redelivered the-note to him to procure an indorser, and he procured the indorsement of the defendant Maria Brown upon the note.

In that case the note was given for the goods, and in that respect differs from this.

But the court, in answer to the contention that there was no-consideration for the indorsement because the goods for which the note was given had been delivered without promise of security before the indorsement was demanded, said : “ Even if it be conceded that a debtor cannot voluntarily give additional security to his creditors for a subsisting indebtedness, the further fact ex-, ists in this case that the creditor claimed that he had been defrauded in the sale and threatened to, and was about to, reclaim his goods unless further security was given, and that, in consideration of the indorsement in question, he relinquished that remedy and the purchaser averted the breaking up of his business which would have ensued.” To the same effect is Griswold v. Slocum, 10 Barb., 402.

These examples might be easily multiplied, but our object is only to show that the principles upon which they proceed can have no application to this case.

There was no consideration for the indorsement of the appellant, and if she had written a guarantee of payment over her signature it would have been void for want of consideration.

There is, in fact, no consideration either for the note or the indorsement It was given as security for the old note, and it does not appear that that note was surrendered.

At all events, there is nothing in this case to show that the appellant ever intended to assume any responsibility except that of •a second indorser of a promissory note, and, therefore, no other or further liability can be imposed upon her.

In the case of Hall v. Newcomb, 7 Hill, 418, the chancellor said the courts had gone quite far enough in repealing the statute to prevent frauds and perjuries by introducing paroi evidence to •charge a mere surety for the principal debtor by showing that his written agreement means something beyond what, upon its face, it purports to mean.

In the same case, Senator Bockee characterizes the contrivances to which resort had been had to impose liability upon indorsers of paper as a sort oí finesse and shuffling game below the dignity of the law, and then says: “We must take this contract as the parties left it, complete and perfect when the note was delivered to Hall, and we have no right to ask "him to resort to practices bordering on trickery and deception for the purpose of changing the character and liability of the parties.”

Courts of justice cannot become resorts for the reparation of blunders. If contracts are not made in conformity with law the courts cannot complete or vary them by ascription or legalize them by construction. Intentions cannot be attributed to parties which they have not entertained or expressed.

There should be no relaxation of the elemental and salutary rule of law which prohibits the variation of written instruments by paroi testimony.

The rights of makers and indorsers of promissory notes are well defined. These instruments are drawn in different forms <2 with reference to the law as settled in relation to each, and with relation to the liabilities which the different parties design to assume.

If they are so drawn and executed as to fail in the accomplishment of the purpose intended by some of the parties, the law is powerless without a reformation of the instrument.

Applied to this case, these remarks are designed to manifest the impropriety of holding the appellant responsible in any character or manner beyond that signified by the act of writing her name on the back of the note in suit

The legitimate inference from that act is that she intended to become liable as the second indorser of the note, and as she cannot be held responsible in that capacity, her intention is frustrated, and she escapes liability.

Such results are not uncommon. Persons who promise to answer for the debt of another intend to incur responsibility, but the law will not enforce the promise.

In no view can the appellant be made responsible upon this note, and the judgment and order denying the motion for a new trial should be reversed and a new trial ordered, with costs to abide the event.

Pratt, J., concurs; Barnard, P. J., dissents.


author: Dykman, J.

text:
    Charles W. Buchholz, App'lt, v. The New York, Lake Erie & Western Railroad Co., Resp't.

      (Supreme Court, General Term, Second Department,

      Filed, December 12, 1892.)

    Eailroad—-Alteration oe street.
    One of -the streets of a village passed plaintiffs premises to the east and . crossed defendant's road at grade. Defendant changed said street before it leached plaintiff, turned it to the south and carried it over its road on a bridge about 150 feet from the former one, and tore up the street east of the old crossing, but left the street open from plaintiff s west to the point where it turned. Thereafter the village authorities accepted the new street and discontinued the old one east of the crossing. Plaintiff is not deprived by the change of light, air or access. Retd, that he was not entitled to a mandatory injunction to compel the restoration of the grade crossing, or to damages.
    Appeal from judgment dismissing complaint.

      C. M Cuddebaclc, for app’lt;

      Lewis M Carr, for resp’t.
   Dykman, J.

The plaintiff owns a house and lot and grounds in the village of Port Jervis, on the north side of Main street and 54 feet west of the tracks of the defendant’s road.

Prior to March, 1890, Main street continued on east past the plaintiff’s property, across the railroad on the same grade, and then made a short curve to the south and continued on an ascending grade to and over the Delaware & Hudson Canal. In March, 1890, the defendant changed Main street by turning it to the south before it reached the plaintiff’s house and then turning it in a sharp curve to the east, and carrying it over the railroad on a bridge about 150 feet south of the old crossing, and from the bridge east until it again struck the street as it formerly was.

Subsequently the defendant tore up the planking at the old crossing and rendered the street impassable from the railroad to-the point where the new street runs into the old one, but left it open from the plaintiff’s house west to the point where the street was turned to the south. The change in the location of the street was entirely upon the land of the defendant, and the old crossing was. also in the defendant’s yard and was considered dangerous.

The alteration was made to escape the danger of the old crossing. The plaintiff has entire freedom of access to his property and the light and air are undiminished and unaffected, so that none of his property rights are invaded. Upon the application of the defendant the trustees of the village of Port Jervis adopted and ratified the alteration of Main street made by the defendant and accepted the new bridge and its approaches in lien of the former grade crossing, and Main street easterly from the old crossing to its intersection with the alteration was discontinued.

The trial court found that Main street in front of the plaintiff’s premises and west of them was open as before and that the plaintiff had the same freedom of access to his property from the street as before, and that his light and air were unaffected.

This suit was instituted to procure a mandatory injunction, which would require the defendant to restore the old grade crossing of the railroad, and to recover damages.

Under the statute of this state railroad companies may locate their lines so as to intersect and cross highways, and as a condition of such privilege a duty is imposed to restore the highway to its former state, or to such state as not necessarily to have impaired its usefulness. Laws of 1850, chap. 140, § 28, subd. 5.

That statute legalized the crossing of highways by railroads, and devolved upon them the burden and expense of restoration. A discretion is reposed in the companies to select in the first instance the place of crossing, and determine the mode of restoration, subject to judicial review at the instance of the commissioners of highways of towns or municipal authorities of villages. Bryant v. Town of Randolph, 133 N. Y., 70; 44 St. Rep., 85; People ex rel. Green v. Railroad Company, 58 N. Y., 152.

Section 24 of the law already quoted conferred the privilege upon the railroad companies to carry the highway under or over their tracks as they deemed most expedient. The requirement for the restoration of the highway was designed for the protection of the public, and the performance of that duty must be enforced in the interest of the public by indictment or mandamus, or by civil action by the commissioners of highways under chapter 255 of the Laws of 1855. People v. N. Y. C. & H. R. R. R. Co., 74 N. Y., 302.

In the process of restoration of the highways by the railroad companies, they stand in the position of highway commissioners, and if they act with prudence they are entitled to the same immunity for damages to property bounded by the highways and streets as those officers. Conklin v. Railroad, 102 N. Y., 112; 1 St. Rep., 677; Bellinger v. Railroad, 23 N. Y., 42; Uline v. Railroad, 101 id., 98.

The plaintiff here claims no private rights in Main street beyond those of an abutting owner thereon, and he holds those in common with the general public. Such rights cannot be enforced in any private action.

In the exercise of a right conferred by statute therefor the defendant carried the street over its tracks, and restored it to its former state of usefulness in a manner which met the approval of the municipal authorities, and which neither invaded nor subverted any property rights of the plaintiff.

The celebrated case of Story v. Railroad, 90 N. Y., 127, teaches no doctrine beneficial to the plaintiff. That case wrought no change in the law of this state respecting surface railroads of any kind. Fobes v. Railroad Company, 121 N. Y., 517; 31 St. Rep., 828.

It only applied settled principles to a new state of facts. In that case a structure had been erected in mid air, which prevented the inflow of light and air to the building of the plaintiff, who was an abutting owner, and the court held that such an owner had an easement appurtenant to his land fronting upon the street for the purpose of receiving light and air, and any interference with ■such rights was deemed property within the meaning of the constitution.

The plaintiff here has suffered no privation of light, air or access to his property. Main street is merely altered. The Siory case left unquestioned and undisturbed the Kerr case, and the ■doctrine there enunciated, and that case fully sustained the action ■of the defendant.

It was decided in the Fobes' case, cited above, that a railroad company duly authorized to operate its road and lay its tracks upon the surface of a city street, under a license from the city, took no property of one who owned land adjoining the street bounded by its exterior line, and, further, that there was no difference in that respect between a railroad operated by steam and one operated by horse power.

All property is held by a tenure more or less subject to the vicissitudes 'incident to the progress and improvement dictated by public necessity, and inconvenience or even decrease in value incident to the changes in streets and highways where no property rights are invaded, are not such injuries as furnish a cause of action, either for damages or an injunction.

In the case of Coster v. Mayor, 43 N. Y., 413, the claim of the plaintiffs was that the best approach to their property had been removed and damage had resulted thereby, but it was held that the damage was too indirect and remote. Hier v. Railroad, 40 Hun, 310.

The change in Main street was an alteration only, and opens no hew route of travel. The street is the same and makes a turn to the south before reaching the property of the plaintiff, instead of a sharp curve to the right after it passed his property and the railroad track. People ex rel. Bowen v. Jones, 63 N. Y., 310.

This careful examination demonstrates the correctness of the judgment rendered, and the same should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting, -


author: Barnard, P. J.

text:
    Elizabeth Alsop, Resp't, v. The Southold Savings Bank, Resp't., and Mary I. Parr, Adm'rx, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    <Jn?v—Evidence insufficient to prove.
    The aunt of plaintiff died at her house, leaving a mother, brothers and sisters. She had lived with plaintiff three years, but no intimacy or kind attentions were shown. Plaintiff claimed certain bank deposits by virtue of an alleged gift from her aunt, and testified that five days before her death the aunt gave her the bank books, but it was not shown that she said anything about her health at the time or that she was then deemed seriously sick. Plaintiff also testified that two days thereafter her aunt again gave the hooks to her in the presence of her husband and brother in law. These witnesses, however, contradict plaintiff’s testimony as to what was afterwards done with the books. Held, that the evidence was insufficient to establish a gift of the books.
    Appeal from judgment in favor of plaintiff, sustaining the plaintiff's claim to a deposit in the defendant bank, by virtue of an alleged gift causa mortis from her aunt, Eliza Gray.

      Roger M. Sherman, for app’lt;

      Joseph F. Mosher and Albert A. Wray, for resp’t.
   Barnard, P. J.

Eliza Grey died intestate in Queens county on the 22nd day of April, 1891. She left a mother and brothers and sisters. She was a woman of about sixty-five years of age. She was a healthy woman up to the week before her death. She had lived for three years and over with the plaintiff, who was a niece of the deceased. The estate of the deceased amounted to about <$8,000, almost entirely represented by savings bank books in three savings banks. This action is brought by the plaintiff to recover the amount on deposit in the Southold Savings Bank and is based upon a title alleged to have been obtained by gift from the deceased, on the Friday before her death. She died on the following Wednesday. The gift is claimed to have included the three books and the deposits shown upon them. The claim of title is supported by evidence of two separate transactions. One on Friday before her death, at which the plaintiff alone was present and the other on the following Monday night, at which the plaintiff and her husband and her husband’s brother were present This transaction purported to have been a repetition of the one of Friday preceding. The plaintiff testifies that the deceased went to bed on Friday ; about five o’clock in the afternoon, and just after she had taken to her bed, she took out of a pocket in her flannel petticoat the three books and gave them to her; that deceased was in the habit of wearing this flannel petticoat and kept the books there. The deceased said not a word about her health. She had said nothing about giving the books before this. The plaintiff subsequently stated that she knew nothing of the books before deceased produced them.

On the second occasion, the plaintiff says that deceased told her to get the books," which she did from her own room, and that deceased then said, calling upon plaintiff’s husband’s brother, “ I give these books to Lizzie in the presence of you. I want you to be a witness to it.” If the books were given' on Friday they were not the property of deceased on Monday. The plaintiff testifies that on the second occasion she put the books back where she got them from. She subsequently stated that she believed M. L. Alsop, her husband’s brother, took them down-stairs. He testithat he did not, but that plaintiff had them down stairs afterwards on the same evening, and he footed up the amounts. He also states the gift on Monday very differently ; he states that the deceased stated that she had given the books before but that she wanted him. “ to see me give them to her.” Both witnesses testify to a delivery of the books, but the plaintiff says that she, after she received them from deceased, gave them to her brother-in-law. He says he did not take them, and that his sister-in-law produced them down stairs in the evening, as has already been stated. The plaintiff never looked at the books or the amount due upon them between the first gift and the second. The plaintiff testified that the deceased whispered to her to bring the bank books on the Monday night. Her husband states that he heard the deceased say: “ Lizzie, I wish you would bring me the bank books.” He says that his wife carried the books away with her oht of the room and fetched them down stairs in the evening, where they were added up. Under this condition of the evidence the gifts ought not to be decreed sufficiently proven. No intimacy was shown between the parties, bic kind attentions are proven and to be considered. There was no mortal sickness apparent either on Friday or Monday. The deceased was a woman whose savings had been accumulating during a long, active life as a housekeeper, and she is not proven to have been, by herself or others, deemed seriously sick on Friday, and, if that gift fails, the other should also. The three witnesses so vary on vital points in respect to their credibility that it is unsafe to take this large amount from her estate upon their testimony, considering their relation to each other and to deceased. The deceased is entitled to a vigilant scrutiny of the evidence where she was in so unprotected a situation in respect to property which could be transferred by delivery. The property was in the plaintiff’s house, and after the death of deceased it would be in the possession of the plaintiff and her family.

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

Dykman and Pratt, JJ., concur.


text:
    John T. Barnard, Adm'r, App'lt, v. John T. Gantz et al., Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Trust—Undue influence.
    An old lady, eighty years old, ignorant, deaf and passionate, executed a trust deed to her son-in-law, who was her attorney, and her son, by which the income of her property was to be paid to her for life, and upon her death §13,000 went absolutely to her son-in-law, and the remaining $30,000 after certain life estates to two sons, was to be divided equally between the trustees. She left six children; and at the time of making the deed was on ill terms with her two daughters, who were left without anything. At the same time she made a will with similar provisions, which she after-wards destroyed. During her lifetime she brought this action to set aside this trust deed on the ground of fraud and undue influence in its procurement. Held, that the transaction was one which should not stand.
    Appeal from judgment dismissing the complaint.
    Action brought by Ann E. Crouse, in her lifetime, to reform a certain trust deed by inserting in it a power of amendment or revocation.

      George G. Barnard (E. B. Barnum, of counsel), for app’lt;

      Hatch & Warren (Thomas F. Wickes, of counsel), for resp’ts.
   Barnard, P. J.

On the 24th of August, 1883, Ann E. Grouse, now deceased, executed a trust deed to Washington Hall, a son-in-law, and John E. Gantz, a son, who were, by the deed, to collect the interest on the property covered by the deed. The property assigned was $33,000 in value. The income was to be paid to Mrs. Ann E. Grouse during her life. After her death, $13,000 of the property went absolutely to Washington A. Hall. Two separate trusts were created by which the income on $10,000 was to go for life to two children of Mrs. Gantz, and after their death the property was to go to the trustees, Hall and Gantz, equally in each trust fund. The trust property took almost the entire estate of Mrs. Grouse. She left six children when she died who were the children of her former husband, Gantz. In the absence of explanation, the result is very unjust. Hall, who is only the husband of a daughter, gets fully more than half of the whole trust estate, and his co-trustee, a son, gets what is left, some $10,000. The inequality as to the trustee, Gantz, is not so great as in the case of his co-trustee. The $20,000, after taking out the Hall gift, is subject to a life estate; one-half to one brother and the remaining half to another brother; and then, after the life estate expires, he gets $10,000. Two daughters get nothing. Hall was, for many years, the confidential adviser of the deceased, Mrs. Grouse. Mrs. Grouse, in her lifetime, commenced an action to set aside the trust deed because of fraud and undue influence in its procurement by Hall, which was, after her death, continued by plaintiff.

The question presented is whether the trust deed is valid or not. Mrs. Grouse was examined in her lifetime, but as Hall was then dead, her examination is not of the completeness which would have reached the whole transaction if her testimony had been unrestricted. She states that she thinks she executed a will at the time of the trust deed. The complaint states that the will divided the property in the same way as the trust deed. Mrs. Grouse states that when this trust deed was given she was on ill terms with her two daughters. The lawyer, Wilber, who drew the trust deed and witnessed it, does not remember the will, but his remembrance is clear that he read over the deed to Mrs. Crouse; that she was a bright, capable old lady of some eighty years of age. There is no proof that the trustee Gantz ever knew of the trust deed before its execution. Hall had been for many years a confidential adviser of Mrs. Grouse ; and the lawyer presumably even certainly employed the lawyer who drew it. 1 think there was a will drawn when the deed was drawn. Hall tells his wife, in speaking of the trust deed, that Mrs. Grouse had also made her will. The witness Clark says he has a recollection that an envelope was found in the Oriental bank where Hall kept the papers marked “ Will of Mrs. Grouse. ” Mrs. Grouse thinks she subsequently destroyed the will. Hall 'told his wife that the will and trust deed substantially gave the whole estate to her and her brothers. Why was there a will drawn if the deed was to be absolute and operative? The referee has found that she did not know that the legal effect of the deed was to irrevocably transfer the bonds. She was eighty years old and quite deaf. She was very ignorant and passionate; her letters show a savage temper. A transaction with her ought to be proven to have been understandingly made. She had a right to be better *' informed. Her adviser profited by her ignorance. The referee’s finding is supported by the transaction as well as by the proof. The subsequent ratification is without weight unless it was made with an understanding that the first deed did not take absolutely the property from her. She supposed that both deed and will could be changed by her at pleasure and the ratification was not intended by her to change her relation to her property as she understood the effect of the papers. The transaction is one which should not stand under the proof. Matter of will of Smith, 95 N. Y., 522.

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

Dykman and Pratt, JJ., concur.


text:
    The United States Trust Co., Trustee, v. Philip V. R. Stanton, Impl'd, Resp't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Limitation—Payment.
    Proof of the entry by the bookkeeper of a trustee in his books of a payment of interest on a mortgage, and an endorsement thereof on the bond, with testimony of the bookkeeper that the payment was so made to him, contradicted only by the mortgagor’s testimony that the payment was not made to said witness, is sufficient proof of such payment to take the mortgage out of the statute.
    3. Executors and administrators—Mortgage—Set-pee. ,
    Services performed for an estate cannot be set-ofE against a mortgage held by it, in the absence of an agreement by the executor that they should be received as payment on the mortgage.
    Appeal from judgment in favor of defendant, except so much as dismisses the counterclaim.
    Action to foreclose a mortgage given to the estate of which plaintiff is the substituted trustee.

      Edward W. Sheldon (Samuel H. Benton, of counsel), for app’lt;

      P. V. B. Stanton, resp’t in person.
   Barnard, P. J.

On the 19th of May, 1862, the defendant executed a bond and mortgage for $2,500 to the executors of the last will of George W. Bowne. The plaintiff, on the 23d of November. 1886, was appointed to succeed the executor as trustee, and thereby acquired the title to the bond and mortgage. The last surviving trustee under the will of Bowne was John Beveridge, and the question first presented is, whether a payment of interest was made to him on the 23d of October, 1867. If not so made, the statute of limitation has run against the bond and mortgage. This payment is clearly proven. George Beveridge, a son of the trustee, John Leveridge, kept the books of the trust estate at that time. On this 23d day of October, 1867, there appears an entry made by the bookkeeper, George P. Leveridge, of the payment of a half year’s interest, $87.50. At the same date and by the same person an entry was made of the payment upon the bond. The witness testifies directly that the payment was made to him on that day ; entries of this particular payment were also made in the joint cash book and upon the ledger. The proof of the payment is complete, and is entirely uncontradicted, except that defendant testifies that the last payment was not made to this witness. The case shows that the defendant, Stanton, was the attorney for the estate before the plaintiff was substituted. The finding is that he performed services for a very large amount, and that the payments thereon had been small. The question, as a general question, is unimportant, as the court of appeals has held that the attorney has no lien or claim against the estate in the hands of the present -trustee. Stanton v. King, 76 N. Y., 585.

The trial court has found that the services were of a greater amount than the amount of the mortgage, and this presents the only remaining question. Was it right to set off the services against the mortgage and thereby pay it ? The counterclaim for services would not be supported by the evidence if the action was directly brought upon it against the plaintiff as generally representing the estate. Code, § 502 ; New v. Nicoll, 73 N. Y., 127.

There was no agreement that the alleged services should be received as a payment on the bond and mortgage. The defendant testifies that he does not remember he ever “ had any conversation with anybody on that subject.” A payment not being proven it follows that the defendant Stanton must rest upon his counterclaim, and that, as settled by the protracted litigation shown by the papers, he cannot do.

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

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


text:
    The Mathushek Piano Manufacturing Co., Resp't, v. James Pearce, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Arrest—Motion to vacate.
    In an action for the conversion of moneys received on the sale of plaintiff’s goods on commission, an order of arrest was granted on the ground of fraudulent representations in procuring the contract for their sale. This was after the appearance of defendant in the action, but the papers did not show that it was granted without notice. Held, that a motion to set aside the order was properly denied.
    Appeal from order denying motion to set aside an order of arrest.

      J. H. Whitelegge (D. McMahon, of counsel), for app’lt;

      J. W. •Alexander {J. F. Daly, of counsel), for resp’t.
   Barnard, P. J.

This action was commenced on the 19th of April, 1892. The defendant appeared by attorney on the 20th of April, 1892, and demanded that copies of all papers in this action "be served on him. On the 14th of May, 1892, an order of arrest was signed by a judge of this court. The appeal papers do not show that the order of arrest was granted without notice to the defendant’s attorney. The affidavit upon which the application for the order was made was sworn to on the 1st of May, 1892, but the papers are silent as to the fact of notice being given upon the granting of the order.

The complaint states but a single cause of action. The facts stated are to the effect that the defendant, by false representation, procured a contract for the sale of plaintiff’s pianos. That defendant received, under the contract, large values and converted the proceeds to his own use. The gist of the action is the fraudulent procurement of the contract and thereby the possession of the property converted.

The order should be affirmed, with costs.

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


author: Babnabd, P. J.

text:
    John R. Drake, App'lt, v. The New York Iron Mine et al., Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Pleading—Answer.
    In an action "by the holder of certain notes .purporting to be those of a foreign corporation, the complaint alleged that they were issued without authority by defendant W., a stockholder, who charged himself with such notes and authorized the company in writing to apply the dividends to the payment of such notes. The fourth defense of the answer alleged that such notes were a part of a large number of notes negotiated at the same time and in the same manner, and that such authorization included the whole of these notes, and that any right acquired by the writing was acquired by all the holders of all the notes, without preference in favor of plaintiff. Held, that such answer -was a good defense, as far as it went, but merely limited plaintiff to his share of such dividends, and that a demurrer thereto was properly overruled, although it stated a defect of parties.
    2. Same.
    A plaintiff need not bring in parties because a defendant avers that parties are necessary.
    Appeal from interlocutory judgment overruling demurrer to the fourth separate defense in the answers of defendants, Wetmore and Maynard.

      Roger M. Sherman, for app’lt;

      Barlow & Wetmore, for resp’ts.
   Babnabd, P. J.

The fourth defense in the several answers of Wetmore & Maynard, assignees, is a proper defense so far as it goes, and should be left in the answers. The plaintiff is the owner of notes given in the name of the New York Iron Mine by Wetmore without authority from the corporation to give them. Wetmore Was a large, owner of stock in the company. The complaint states that Wetmore assigned certain dividends on the stock by charging the plaintiff’s notes against himself, and by entry on the books authorized the corporation to apply such’ dividends to the payment of the plaintiff’s notes. The fourth defénse avers that the plaintiff’s notes were part of a large amount of notes all of one general character, and were negotiated at about the same time, and this defense further avers that the entries on the books concerning the whole of these notes were of the same purport and effect, and that any right acquired by the entries was acquired by all the other holders of the other notes without any preference whatever in favor of the plaintiff as against the other holders. It is true that this fourth defense states that there is a defect of parties, but the substance of the answer must remain, whatever the order may be on the trial. If the plaintiff has not a prior lien on the dividend found, but others sharing with him, there is no difficulty in giving the plaintiff judgment for his share. As the pleadings stand, the plaintiff avers a prior lien, and the defendant avers that others must share equally with him. The plaintiff need not bring in parties because a defendant avers that parties are necessary. The demurrer to the fourth defense was properly overruled, but no new parties are needed, and this order is affirmed with the modification that the fourth defense stand as it is.

Ho costs to either party on this appeal.

Dykhan and Pratt, JJ., concur.


author: Pratt, J.

text:
    James B. Horton, Resp't, v. William H. S. Wood, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Evidence—Entry ob contract.
    In an action upon a contract where the terms thereof are in dispute, a memorandum of the contract made by the person with whom the contract was made, and who has since died, is inadmissible unless shown to have been read or shown to the other parly, even though the same was entered in a book.
    Appeal from judgment in favor of plaintiff, entered upon verdict and from order denying motion for a new trial.
    Action to recover commissions claimed to have been earned as a book canvasser. The parties disputed as to the terms of the contract, plaintiff claiming that he was to have commissions on all accepted sales, the defendant that he was to pay commissions only on the amount he collected on plaintiff’s subscriptions.
    Plummer, the clerk with whom plaintiff made the contract, had died; and defendant offered in evidence a memorandum of the terms of the contract, made by Plummer, in defendant's books. The evidence was rejected by the court, unless it was shown that the memorandum was read to or shown to the plaintiff.

      Walter Edwards, for app’lt;

      Andrew J. Provost, for resp’t.
   Pratt, J.

The verdict was not contrary to the evidence. The letters of plaintiff upon which defendant relies are entirely consistent with plaintiff’s evidence. We think they might be said to corroborate it so far as to show it is not an afterthought, but that he frankly stated his views when the dispute first arose in the same manner that he states them now.

The exception to the exclusion of Plummer’s statement cannot be sustained. Entries in books of accounts are sometimes admitted, jas are records kept by public officers, after the death of those by whom they were made. But no authority is cited to show that a written statement of the facts in a disputed cause can be proved after the death of the writer simply because entered in a book.

Judgment affirmed, with costs.

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


author: O’Brien, J.

text:
    Frank McNally et al., App'lts, The Phenix Ins. Co. of Brooklyn, Resp't.

      (Court of Appeals,

      Filed February 28, 1893.)

    1., Insurance (Fire)—Premature Action.
    On June 17, 1885, proofs of loss by fire occurring ten days before were served on the insurer, which did not containa magistrate’s certificate, and the same were rejected. On June 7, 1886. proofs of loss and the certificate were served, and this action commenced the same day. Held, that the action was not prematurely brought. "
    3. Same—Unoccupied building.
    Plaintiffs applied 'directly at the principal office of defendant to its cashier, stating that he wished to insure a building in course of construction, not quite complete and not yet occupied or used ; that when complete it was to be used as a storage ice house. The written application, made for plaintiffs by IT., who was to become a mortgagee of their premises, described the building as “used as a storage ice-house.” Held, that the jury were justified in finding that the provision in the policy as to occupancy was waived by defendant.
    (Earl, Peckham and Gray, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, second department, overruling exceptions heard in the first instance after dismissal of complaint at close of plaintiffs’ testimony, and giving judgment for defendant.

      Matthew Hale, for app’lts ;

      James & Thomas H. Troy, for resp’t.

       Reversing 42 St. Rep., 21.

   O’Brien, J.

The plaintiffs sought to recover upon a policy of insurance for $2,500, issued May 2, 1885, upon a building situated on the shores of Gravesend bay, which was destroyed by fire June 2, 1885, or a little more than a month after the insurance was effected.

At the close of the plaintiffs’ testimony on the trial the court, upon the motion of counsel for the defendant, granted a nonsuit, to which the counsel for the plaintiffs excepted, after having requested that the case be submitted to the jury. The motion for a nonsuit was made and granted upon three grounds:

1. That there was a breach of the warranty in the policy that the building was occupied at the time of the insurance.

2. That the final proofs of the loss were not furnished until June 7, 1886, a year from the time of the loss.

S. That this suit was commenced on the same day that the final proofs of loss were served, and as the claims were not due, by the terms of the policy, until sixty days after compliance with all the requirements thereof, the action was premature.

In reviewing a judgment upon a nonsuit the plaintiffs are entitled to the benefit of every fact that the jury could have found from the evidence given, and to every legitimate inference that is warranted by the proofs. This disposition of a cause by the trial court is never warranted unless it appears that the plaintiff is not entitled to recover, after giving him the benefit of the most favorable view that a jury would be warranted in taking of the evinence. The plaintiffs’ theory with respect to the facts, so far as they are supported by evidence, must be deemed to be established, and where inferences are to be drawn from facts and circumstances not in themselves certain or incontrovertible, it is generally for the jury and not the court. It appears from the evidence that one of the plaintiffs applied for the insurance directly at the principal office of the company in Brooklyn, and it was not procured through any local agent, as it generally is. He was introduced to-a person in charge of the office and who, it seems, was the defendant’s cashier. He stated to him the amount of the insurance required ; that the building wras in process of construction, not quite complete, and not yet occupied or used; that when complete it was to be used as a storage ice-house. Tire policy was not then procured, but the cashier made a memorandum of something, told him he would not do anything in the matter until the secretary arrived, and to call in a few days after. It seems that the party who introduced him to the officers of the company had an office in the same building, and had some claim upon the property which was the subject of insurance by way of mortgage. This mortgage, however, was paid off by the owners before this suit was commenced, and no question was made in regard to it upon the trial as an obstacle to the right of the plaintiffs to recover. The circumstance is important now only as it tends to show that the party thus introducing the owners or one of them to the defendant, and to whom the policy was afterwards delivered, was perhaps as. much interested in procuring the insurance as the plaintiffs themselves. It does not appear that any of' the plaintiffs had any further negotiations with the company prior to issuing the policy, but they left the matter with Nostrand, who had or was about to take the mortgage, and who had opened the transaction by introducing one of the owners, and had himself one or more interviews with some of the defendants’ officers in regard to the matter, representing, as he says, himself and his interest as well as the owners. The policy was delivered to him on the day of its date, and on the same day Nostrand, describing himself as agent, signed a written application in which the building is described as “ used as a storage ice house.” The building was entirely new, and at the date of the policy and at the time of the fire was unoccupied. The evidence tended to show that the building was constructed and intended for use in the business of receiving and storing ice to be transferred by boat down the Hudson river, but was destroyed before the owners commenced to use-it for that purpose.

Notwithstanding the statement in the application as to the use- and occupancy of the building, the jury might have found, from the testimony, that the officers of the defendant had been fully informed prior to the execution .or delivery of the application or the policy of the condition of the subject of the insurance with respect to its use and occupancy, and of all the facts bearing upon the nature of the risk, and if the company had knowledge before the contract was made that the building was not quite completed, and was neither used nor occupied, that would be evidence upon which to base a waiver on its part of the condition that the policy should become forfeited in case' of non-accupotion.

When a policy is issued with full knowledge on the part of the underwriter of facts in direct conflict with the statement on the same subject in the application, it is reasonable to assume that there was no intention to insist upon the condition, or claim a forfeiture under it. Van Schoick v. Niagara Fire Ins. Co., 68 N. Y., 434; Richmond v. Niagara Fire Ins. Co., 79 id., 230; Woodruff v. Imperial Ins. Co., 83 id., 133; Short v. Home Ins. Co., 90 id., 16; Haight v. Continental Ins. Co., 92 id., 51; Bennett v. North British Ins. Co., 81 id., 273; McCall v. Sun Mut. Ins. Co., 66 id., 517.

If it be true that when the contract was made the defendant had knowledge that the building was, in fact, unoccupied, it is necessary to presume that the statement in the application and in the policy to the contrary was inserted by mistake in order to relieve it from the imputation of a fraudulent intent to deliver and receive pay for an invalid instrument, or that it intended to hold itself estopped from setting up a breach of the condition or warranty as a defense. If an action to reform the contract was necessary, as to which we now express no opinion, it is sufficient to say upon this appeal that no such point was made at the trial. It appeared that after the defendant had received the proofs of loss from the plaintiffs that it returned the same, for the reason, among others, that a magistrate’s certificate, required by the policy as to certain facts which will be hereafter noticed, was not attached, and which was subsequently supplied by the plaintiffs. If the defendant at the time intended to avail itself of the breach of the warranty •above referred to, this requirement was, of course, wholly unnecessary ; and when an insurance company, with knowledge of, all the facts constituting a breach of a condition or a warranty, requires the assured by virtue of the contract to do some act or incur some trouble or expense, the forfeiture is deemed to have been waived, as such requirement is inconsistent with the position that the contract has ceased to exist, and consistent only with the theory that the obligations of the contract are still binding upon both parties. Titus v. Glens Falls Ins. Co., 81 N. Y., 410, 419; Benninghoff v. Agricultural Ins. Co., 93 id., 495; Roby v. American Central Ins. Co., 120 id., 510; 31 St. Rep., 560.

The written application was made, as we have seen, by a person who assumed to act as agent of the plaintiffs, and in their absence the policy was written and delivered to him, and the testimony tended to show that he had no authority from the plaintiffs to insert such a statement in the application or the policy. It was not shown that the plaintiffs in any way, with knowledge of the facts, ratified this act, and, in the absence of any evidence on the part of the defendant, it would be reasonable to assume that the statement in the application and in the policy as to the occupancy of the premises was the result of some mistake, either on the part of the agent or the company. Benninghoff v. Agricultural Ins. Co., supra.

In this condition of the case it could not be held, as matter of law, that the policy was forfeited for breach of the conditions, or that it was rendered void by a breach of the warranty. The two other grounds specified in the motion for a nonsuit may be considered together. Both are based upon the proofs of loss and matters occurring after the fire, and here it may be proper to note a manifest distinction to be observed in giving construction to the two classes of conditions to be found in a policy of insurance. Those conditions which operate upon the parties and the contract prior to the loss, such as the condition and situation of the property and the relations of the insured to it, and all statements and representations preceding the contract, are matters of substance, upon which the liability of the insurer depends. Such stipulations are important, as their general object is to define and determine the limits of the risk assumed and to point out the conditions and circumstances under which the insurer has agreed to become liable in case of loss. Those conditions are to receive a fair construction according to the intention of the parties. Those conditions which relate to matters after the loss have, for their general object, to define the mode in which an accrued loss is to be established, adjusted and recovered, after the reciprocal rights and liabilities of the parties have become fixed by the terms of the contract, and are to receive a more liberal construction in favor of the insured. In determining the liability of the defendant it is entitled to the benfits of its contract fairly construed, and can stand upon all of its stipulations. But when its liability has become fixed by the capital fact of a loss, within the range of the responsibility assumed in the contract, courts are reluctant to deprive the insu.red of the benefit of that liability by any narrow or technical construction of the conditions and stipulations which prescribe the formal requisites by means of which this accrued right is to be made available for his indemnification.

If, in this case, a right of action accrued to the plaintiff by reason of the destruction of the property by fire on the 7th of June, 1885, a liberal and reasonable construction of the stipulations of the contract which prescribe the formal acts on the part of the injured necessary to the recovery of the loss is sanctioned and required by the rules of law. May on Insurance, 3d. ed., § 217; Hinman v. Hartford Fire Ins. Co., 36 Wis., 159; McLaughlin v. Washington County Mutual Ins. Co., 23 Wend., 525; Griffey v. N. Y. C. Ins. Co., 100 N. Y., 417; Kratzenstein v. West Ass. Co., 116 id., 54; 26 St. Rep., 453; Hoffman v. Ætna Fire Ins. Co., 32 N. Y., 405.

The policy in question contained the following conditions: 'That the assured “shall give immediate notice of the loss, in writing, to the company.” * * * “Aparticular statement of the loss shall be rendered to the company at their office as soon after the fire as possible, signed and sworn to by the assured, stating such knowledge or information as the assured has been able to obtain as to the time, origin and circumstances of the fire, * * * and shall, if required, furnish a certificate, * * under the hand and seal of a magistrate nearest to the place of the fire, not concerned in the loss as creditor or otherwise, nor related to the assured, stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has honestly sustained loss on the property herein described to the amount which such officer shall certify. * * * The adjusted claim under this policy shall be due and payable sixty days after the full completion by the assured of all the requirements herein contained.” Proofs of loss were prepared by the plaintiffs upon blanks furnished hy the defendant, and sworn to as required, and were served on the defendant June 17, 1885, ten days after the fire. These proofs were returned by the defendant with two objections only. (1) That they omitted to state “such knowledge or information 'as the assured has been able to obtain as to the origin or circumstances of the fire;” and (2) That no magistrate’s certificate was procured. No objection wras made to these proofs on the ground that they were too late, and if they were sufficient in other respects it cannot be said as matter of law that they were not served in time, especially in view of the fact that the policy is silent as to the time within which they should be furnished. The plaintiffs were, doubtless, bound to furnish them within a reasonable time, and no claim was or can be made that a delay of ten days was, as matter of law, under the circumstances, unreasonable. If the proof of loss served on the 17th of June, 1885, was a substantial compliance with the terms of the policy, the sixty days commenced to run from that date and the action was not premature. It will be seen that the magistrate’s certificate is not one of the absolute requirements of the policy. The plaintiffs were, doubtless, bound absolutely to furnish the particular statement of the loss, and were bound to furnish the certificate, '■'■if required." The company could call for it or not, as it deemed necessary. It could call for it at any time before payment, unless waived, and when called for the assured could comply with the demand in a reasonable time and before the commencement of the action. It was not necessarily a part of the “ particular statement of the loss.” It was a certificate that could be made on a separate paper, and while the defendant had the right to require it and the plaintiffs were bound to furnish it, or use due diligence to procure it, the fact that it was not attached to the proofs of loss when served furnishes no ground or reason for returning these papers. The company could call for the certificate, but had no right to discard the proofs of loss served for that purpose, if they were sufficient in other respects. The certificate was something that the company could require, but it was not an absolute requirement of the policy to be complied with before the sixty days began to run, and had the defendant failed to call for it the proofs would have been perfectly good without it. Jones v. Howard Ins. Co., 117 N. Y., 103; 26 St. Rep., 844.

The requirements of the policy that the assured should in the proof state such knowledge or information as they were able to obtain with reference to the origin and circumstances of the fire were substantially though, perhaps, not literally complied with in the first proofs of loss. It was there stated, “ that the fire originated about eleven o’clock on Sunday night, June 7,1885, and that said building was entirely destroyed. That said fire did not originate by any act, design or procurement on their part, or in consequence of fraud or overt practice done or suffered by them; nothing has been done by or with their privity or consent to violate the conditions of the policy or render it void.” The plaintiffs proved at the trial that they had no knowledge or information whatever as to the origin and circumstances of the fire and all that they could say further than they did would be a statement of the absence of such knowledge, which would certainly be a compliance with the requirement. Jones v. Howard Ins. Co., supra. But the policy did not require the plaintiffs to state affirmatively that they had no such knowledge or information. It only required from the plaintiffs as full a statement on this point as, without fraud on their part, they were able to furnish and, therefore, the statement in the proofs was sufficient. Bumstead v. Dividend Mut. Ins. Co., 12 N. Y., 81. The defendant, therefore, did not change the situation by returning the proofs of loss, but it did require the certificate •of a magistrate, which was not furnished till the 7th day of June, 1886, just one year from the date of the fire. On that day the plaintiffs presented new proofs of loss, with a certificate in the form required by the policy. The new proofs differed from the old as to the statement of the value of the property, which was less than in the first proof, but the plaintiffs’ testimony tended to show that the value was thus reduced in consequence of some negotiations for settlement with officers and agents of the company, from which they expected that if the claim was reduced it would be settled and paid.

They also contained the statement that the plaintiffs had no knowledge or information, nor any means of knowledge or information, in regard-to the origin and circumstances of the fire. The defendant returned all of these papers with only one specific objection, namely, that they were served a year after the fire and loss. If the proofs of loss first served were sufficient, then the service of the last papers was a superfluous act that may have ” been induced by the promise or hope of a settlement, but would not necessarily extend the sixty day limit which was fixed by service of proofs, in compliance with the policy, nearly a year before. In this view the proofs served on the day the ■action was commenced raise only the question of diligence in procuring the certificate of the magistrate. The other papers were unnecessary, because the requirements of the policy had already been complied with in that regard, but the certificate had not yet been furnished, though called for on the preceding 18th of June. The failure for nearly a year to procure this certificate, if unexplained, might be held to be a failure to comply with a provision of the contract necessary to establish the loss. But here again' the testimony tended to show that the plaintiffs applied to the magistrate in the town for the certificate. I am not aware of any provision of law which requires an officer to give such a certificate. It is quite conceivable that cases may occur where the assured would be unable to procure the certificate, and if he could not, after reasonable diligence, it would be a harsh rule that would deprive him of his cause of action for that reason.

The first magistrate to whom the plaintiffs applied finally declined to make the certificate on the ground that he was not sufficiently familiar with the property or the facts. The second one happened to be a lawyer, who, after keeping the papers some three months, informed the plaintiffs that he was unable to make the certificate as, in the meantime, he had been retained as counsel for the other side. On the third application to a magistrate the plaintiffs succeeded in obtaining the certificate, but in the meantime there was some talk between the plaintiffs and defendant’s secretary in regard to a settlement, and one of the witnesses states that he promised to settle and pay the claim if the plaintiffs would bring their figures “down to hard pan,” and in the new proofs the figures were reduced. Under these circumstances, the delay in procuring the certificate did not, as matter of law, defeat the plaintiffs’ cause of action.

Whether the conduct of the plaintiffs with respect to the certificate was diligent or unreasonable was a question for the jury. There is a provision of the policy to the effect that no action shall be maintained to recover the loss unless brought “ within twelve months next after the fire shall have occurred.” The limitation did not date from the time of the loss, as in some cases, but from the time of the fire. This action was brought on the last day of the twelve months. The plaintiffs evidently 'preferred to meet the defense that the suit was premature, rather than wait another day and then be obliged to encounter the other horn of the dilemma, that they were too late. It is quite clear that the plaintiffs could not delay the bringing of the suit any longer without meeting with an obstacle that would be quite difficult, if not impossible, to overcome, and the other conditions of the policy should be so construed in connection with the short statute of limitations as to avoid such a dilemma if possible, and at the same time give the fullest possible effect to all. Mayor, etc., v. Hamilton Fire Ins. Co., 39 N. Y., 45.

The answer of the defendant charges fraud of the most serious nature on the part of the plaintiffs, but as no evidence was given on the part of the defendant, it is impossible to say what the results of the claim are. It may be that upon a full trial and with all the facts fully investigated, some of the defenses interposed may be established. All we hold now is, that upon the record before us the case was not so clearly with the defendant as to justify a nonsuit.

The judgment should, therefore," be reversed and a new trial granted, costs to abide the event.

Finch and Maynard, JJ., concur; Andrews, Ch. J., concurs in result. Earl, Peckham and Gray, JJ., dissent.