text:
    JOHN LUTES, as Overseer of the Poor of the City of Rochester, Respondent, v. WILLIAM B. SHELLEY and GEORGE W. SHELLEY, Appellants.

      Conviction of a husband for abandoning his wife — right of the husband to select a home —form of the undertaking to be given on a conviction — Code of Criminal Procedure, sec. 901 — by whom an action may be brought.

    This action was brought upon an undertaking given by the defendant, as required by section 901 of the Code of Criminal Procedure, upon his conviction as a disorderly person; by which undertaking he agreed to indemnify the city of Rochester against his wife’s becoming within one year chargeable upon the public. On June 28, 1884, the defendant Shelley was convicted as a disorderly person on the charge of abandoning his wife. The defendant, although not cohabiting with his wife, had, up to that time, furnished her with means for her support. ; She occupied rooms in the city of Rochester, and on the day of the conviction . and the following day the defendant called at the rooms to see her and was refused admittance. On the evening of the latter day he wrote a letter to her in which he said that he had provided a place for her support and maintenance, with necessary medical attendance, in the family of one Aldrich, at Kenyon-ville, Orleans county, and offered to go with her whenever she was ready; he stated that he was not able to support her in any other place, and that he trusted it would not be long before he could do better.
    This invitation the wife refused to accept on the ground that she was in poor health and had lived in the city for many years; that she had no relatives or acquaintances at Kenyonville and that no physician resided there. It appeared that the Aldrich House, though not large, was comfortable and respectable, and the physical comforts of the wife could be there fairly provided for.

      Held, that the evidence did not warrant the conviction of the defendant; that the husband has a right to select a home for his wife, and his judgment, when fairly exercised, must govern in so far as to relieve him from the charge of being a disorderly person.
    The undertaking required in such cases may properly be made in the name of the people for the benefit of the municipality concerned, and may be prosecuted for a breach in the name of the officer authorized by the statute to take the place of the plaintiff in the action brought for that purpose.
    Appeal from a judgment of tbe Monroe County Court, affirming a judgment of tbe Municipal Court of tbe city of Eocbester against tbe defendants.
    Tbe action was brought upon an undertaking made on conviction of the defendant William B. Shelley, as a disorderly person, for abandoning his wife and neglecting to provide for her according to bis means. The plaintiff recovered in tbe Municipal Court $500. Tbe County Court affirmed tbe recovery.

      Win. Butler Crittenden, for tbe appellants.

      John N. Beehley and G. F. Shewn, for tbe respondent.
   Bradley, J.:

The contention of tbe defendants’ counsel that tbe undertaking is not in tbe form required by statute and therefore void; that tbe Municipal Court bad no jurisdiction to entertain tbe action and render tbe judgment, and that the aefciou upon tbe undertaking could properly be brought in the name of tbe people only, and by tbe district attorney is not supported. Tbe character of the undertaking is provided for, but its form, except as to tbe terms of tbe obligation to be assumed by it, is not prescribed by tbe statute. (Code Crim. Pro., § 901.) It was properly made in tbe name of tbe people for tbe benefit of tbe municipality concerned, and prosecution upon it for breach could be bad in the name of the officer authorized by the statute to take the place of plaintiff in the action for that purpose. The prosecution in such case may be had in the names of overseers of the poor of towns. (Id., § 905.) The same powers are devolved upon the overseer of the poor of the city of Rochester for that municipality. (Laws of 1880, chap. 14, § 79.)

The action was, therefore, properly brought in the name of the officer. .And the provision of the Code of Civil Procedure (§ 1966), requiring certain actions to be brought by the district attorney has no application. The jurisdiction given to the Municipal Court embraces this action for the purposes of recovery of the sum mentioned in the undertaking. (Laws of 1880, chap. 14, § 245.) It had no jurisdiction to direct by judgment that the defendant give new security, and the relief demanded by the complaint was not within the power of the court to effectually grant by judgment.

But the provision of the statute, that “upon a recovery on the undertaking the court in which it is had, may require from the defendant new security ” (Code Crim. Pro, § 906), does not go to the jurisdiction of the court in question to determine an action and give judgment for the amount of such an undertaking within the prescribed limit. This statute does not necessarily require that the court entertaining such action shall possess the power to extend its judgment to relief beyond such recovery.

But the inquiry of more difficulty is whether there was any breach of the undertaking to justify the recovery. The warrant in the original proceeding was issued upon the complaint of the wife of the defendant William B. Shelley on the 28th day of June, 1884, and he was convicted on that day as a disorderly person on the charge of abandoning his wife, of leaving her in danger of becoming a burden upon the public and for neglect to provide for her according to his means (Code Crim. Pro., § 899), and on the same day the undertaking in question was made. The defendant'and his wife had not cohabited for several years, but up to June 28, 1884, he had furnished her with some means for her support. Since then she has received nothing from him. She occupied rooms in the city of Rochester, and on the day of the conviction and on the following day he called at the door of her rooms and she on both occasions refused to see him, and ou the evening of tbis latter day (June twenty-ninth) he sent to her and she received the letter addressed to her, of which this is a copy:

“Eoohbstee, June 28, 1884.
“ Mrs. Shelly :
“ I have provided a place for your support and maintenance, with necessary medical attendance in ease you need it, in the family of D. C. Aldrich, at Kenyonville, Orleans county. I will go with you on Monday next or at any time you are ready. I must insist on your going there as I am not able to support you in any other place at this time.
“ Trusting that it will not be long before I can do better,
“Yours,
“W. B. SHELLEY.”

Mrs. Shelley did not accept this invitation. There is no reasonable opportunity upon the evidence for the inference that this offer was not made with the purpose of carrying it out, and it must be assumed that it was made to that extent in good faith. And the question is, whether this provision for her support was such as he had the right to tender and furnish as a performance of the condition of his undertaking, which is, that he “ will indemnify the city of Rochester * * * against her becoming within one year * * * chargeable upon the public.”

The evidence tends to prove that the Aldrich House, though not large, was comfortable, and situated in a hamlet. The family consisted of Mr. Aldrich, his wife and a son eighteen years of age. The reasons given in support of the contention that the place was not a suitable provision for her, are, that she was in poor health ; had lived in the city for many years; that she had no relatives or acquaintances at Kenyonville, and that no physician resided there. And two physicians who had treated her say that her nervous system has been shattered; her physical and mental condition is low; that she has a chronic disease of several years duration, with late developments; that in their opinion it would be injurious to her, in view of such condition, to take her from her friends and acquaintances to the place referred to. It also appears that there are doctors within one and two miles of Kenyonville.

There is nothing which fairly tends to prove that, her physical comforts would not bo fairly provided for her at that place, and nothing to detract from its respectability.

The duty is upon the husband to provide suitable support for his wife. If he has been and continues ready, and in due time offered ■ in good faith to do so, he has a defense against the charge of breach of the condition of the undertaking.

The matter of association, other than that it be respectable, is not a controlling element to be considered upon-a question of this character. With the husband is the right to select, as well as the duty to provide, a home for his wife ; and in that respect his judgment, fairly exercised, must govern, in so far as to relieve him from the charge of being a disorderly person. The defendant has some means but he is not a wealthy man. And although out of employment at the time of this offer to provide the home for his wife, so far as appears he was in good health and probably able for the time being to provide her a place to live in the city and support her there, but that does not necessarily deny to him the right to seek for her and himself a home elsewhere. This is in no sense a case to settle marital disputes between husband and wife or to harmonize their views.

It is simply a question whether he remained a disorderly person within the meaning of the statute after the undertaking was made, which depends upon the continuance of his neglect to provide for his wife. It does not appear that their condition in life has been such heretofore, or that the -means of the defendant are such now,, as to characterize the place the husband offered to provide as unreasonable, or such as to shock the sense of propriety, or that to-require the wife to live there would be harsh or cruel treatment in the sense which is applied to those terms in such relation. If they had resided at the place in question it will hardly be contended from what appears here, that a mere desire not to live there would have permitted her to leave the place and charge him for her support elsewhere, or that his refusal to provide for her at another place to which she had voluntarily and without his consent gone, would have subjected him to the charge and conviction of the offense of a disorderly person, as for not providing for her according to his means.. The statute is penal. The burden is with the plaintiff to establish a breach of the condition of the bond. The conviction had before the bond was made furnishes no evidence for that purpose. In the exercise of his right, the defendant has selected a place for his wife to live, where he offers to provide her a home and support and to supply her physical wants. It is, perhaps, unfortunate that he could not have gratified her pi-eference in respect to place of abode. And while it must be conceded that he ought to have respected her tastes and wishes in that respect, if his circumstances fairly permitted, yet the home for him to provide for her is so much the matter of his judgment and control that his action in doing so is not the subject of review by the court unless it evinces bad faith in view of all the circumstances. (Babbitt v. Babbitt, 69 Ill., 277; Hair v. Hair, 10 Rich. Eq., 163.) A place offered as a home might be such as he might suppose she would not accept, and thus indicate a purpose on his part not to furnish her support, but to so characterize it the place •designated must be an unreasonable one for her residence and home, or such that the wife would be justified in leaving the place if she resided there, and as a consequence charge him with liability for her necessary support at such other place as she might obtain it. The home provided is neither so remote or so situated as to render its .selection an unreasonable exercise of his discretion: It was in the locality where the defendant was acquainted and had friends residing.

The rule by which the failure of duty of the husband to the wife in the respect in question is measured, is that which permits the wife to sever her relations from him and his home and seek .support elsewhere at his expense. And no less reason must exist to justify her refusal to accept a home and support pi’ovided for and •offered to her by him. And such is the docti’ine applicable to a ease of this character. (People v. Pettit, 74 N. Y., 320; People ex rel. Douglass v. Naehr, 1 N. Y. Cr. R., 513.) The action is not supported by evidence of any breach of the condition of the undertaking. .

The judgment of the County Court and that of the Municipal Court should be reversed.

Smith, P. J., Baeeee and Haight, JJ., concurred.

Judgment of the County Court and that of the Municipal Court ■of the city of Rochester reversed.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    In the Matter of the Claim of BETSEY B. WILBUR, Respondent, v. The Estate of ENOS WARREN, Deceased, Appellant.

      Liability of a paA'ty assuming the payment of a mortgage in a convey anee of real estate— right of one claiming under a voluntary conveyance from him, to enforce that liability.

    Id June, 1879, one Wilbur and bis wife conveyed to one Warren seventy acres of land, subject to the conditions of a mortgage theretofore given by the grantors .and the bond accompanying it, which the grantee agreed to pay as part of the consideration of the conveyance. In 1880 Warren conveyed the premises to his daughter, Wilbur’s wife, by a full covenant deed expressing a consideration of $500, but being in fact a voluntary deed founded upon a meritorious consideration. After Warren’s death the daughter, having paid interest upon the amount remaining unpaid upon the bond and mortgage, presented a claim therefor against the estate of Warren.

      Held,, that she was entitled to recover the amount so paid, upon the ground that as her grantor was personally liable to pay the debt by virtue of the covenants contained in his deed, she, as his grantee, was entitled to be subrogated to the remedy possessed by the mortgagee to charge him or his estate with the payment thereof.
    Appeal from a decree of tbe surrogate of Chautauqua county, allowing to Betsey B. Wilbur a claim made by her against the estate of Enos Warren, deceased.
    In 1866 one Loucks conveyed to Riley Wilbur ninety acres of land for the expressed consideration of $3,600. And in 1876 the grantee and his wife, Betsey B. Wilbur, gave a mortgage on the premises to one Miller to secure the payment of $2,400. In 1877 Wilbur and wife conveyed twenty acres of the land to one Blauvelt, who gave back a mortgage for $549, and in 1879 Blauvelt conveyed the same twenty acres to Enos Warren, subject to the lien of the two mortgages. And afterwards, in June, 1879, Wilbur and wife conveyed the seventy acres to Enos Warren by deed, subject to the conditions of the Riley mortgage of $2,400, and the bond accompanying it, which the grantee agreed to pay as part of the consideration of the conveyance, the conveyance stating that it was accepted by him on those conditions. In 1880 Enos Warren conveyed the seventy acres to Betsey B. Wilbur by a full covenant warranty deed, expressing a consideration of $500. But in fact the deed was voluntary and upon a meritorious, consideration only. The' grantee was bis daughter. He paid $1,400 of the principal sum secured by the mortgage prior to bis conveyance to her and there remained $1,000 unpaid. He afterwards died intestate and letters of administration were issued to Hiram P. Warren and Betsey B. Wilbur. She having paid interest upon the bond and mortgage instituted this proceeding before the surrogate, who allowed the amount so paid by her against the estate of the intestate. The administrator, Hiram P. Warren, contested the claim and appeals.

      Frcmlc Stevens, for the appellant.

      A. Hazleton, for the respondent.
   Bradley, J.:

. The deed of Enos Warren to Betsey B. Wilbur (his daughter), was made without any consideration other than natural love and affection. The question is whether, as between the parties to this conveyance, the land was the primary fund for the payment of the mortgage debt ? If it was, the claimant was not entitled to credit and allowance for the amount paid by her upon it, but if, as between them, the debt may be treated as that of her grantor, she was entitled to the relief given by the decree.

If her remedy is dependant upon the covenants in the deed, and founded upon them only, it is difficult to support the claim of the petitioner, as an executory agreement without consideration other than meritorious, creates no liability. (Fink v. Cox, 18 Johns., 145 ; Harris v. Clark, 3 N. Y., 93; Whitaker v. Whitaker, 52 id., 368.) And such covenants seem to come within the same rule. (Duvoll v. Wilson, 9 Barb., 487.) The deed was effectual as an executed conveyance of the title to the premises, and was not, by its terms, made subject to the mortgage. It is, however, contended that ; inasmuch as the covenants were ineffectual to support any remedy of the grantee founded upon them, the conveyance must be deemed made subject to the mortgage, and therefore the land is the primary fund to pay the debt secured by it. If the deed may be treated as a conveyance of the equity of redemption only, and no other rights arise out of tho relation and conveyance, the contention is supported. When Enos Warren took the deed from Riley, subject to the mortgage, and undertook to pay it, be became liable upon his covenant to do so, provided bis grantor was personally liable to pay the mortgage debt. (King v. Whitely, 10 Paige, 465; Vrooman v. Turner, 69 N. Y., 280.) And the mortgagee might have maintained an action at law against him to recover it. (Burr v. Beers, 24 N. Y., 178 ; Thayer v. Marsh, 75 id., 340.) The evidence tends to show, and the conclusion is justified, that the mortgage was given to secure the bond of the mortgagor, so that as between him and his grantee, the latter was the principal debtor and the mortgagor, had the relation of surety in respect to the mortgage debt, with all the rights incident to that relation. The debt secured by this mortgage then became the debt of Warren. And the question arises whether, as between him and the petitioner, after the conveyance to her, it remained such, because her right to relief is dependent upon that of subrogation to the rights- and remedies of the mortgagee against him and his estate. If she is required to pay the debt of her grantor to relieve her property from its lien, she has her remedy for reimbursement, (Cole v. Malcolm, 66 N. Y., 363.) The covenants expressed in the deed to her are that he had title free from incumbrance, and that she should be defended in the quiet and peaceable possession of the premises, etc. While these covenants were not effectual to create his personal obligation, for reasons before given, they may be treated as evidence of his purpose, and to show the quantmn of the estate he intended she should take by the conveyance, that it was not intended to be subject to the mortgage, or that his personal liability to pay the debt he had incurred in the purchase should continue and not be charged upon the land. A conveyance without warranty is not, for that reason, necessarily made subject to an existing incumbrance on the property conveyed. The question is one of understanding between the parties when not evidenced by provisions in the instrument. And covenants evince intent in that respect, as well as does the fact of payment of what is deemed the full value of the property conveyed. (Cooper v. Bigby, 13 Mich., 474, 475; Wadsworth v. Lyon, 93 N. Y., 201.)

The petitioner’s grantor incurred personal liability to pay a portion of the purchase-money of this land, and conveyed it to her, with an expression in the deed of purpose to vest in her the title to it free from the lien of the mortgage. Up to that time the debt was bis by force of bis covenant in tbe deed, wbicb be bad taken as effectually as if it bad been represented by bis obligation to pay so 'mueb of tbe purchase-money, and tbe mortgage as security was tbe mere incident or collateral to it. He bad tbe right, by the terms of bis conveyance, to shift the primary charge for tbe payment of tbe debt to tbe land and take tbe relation of surety, and, as between him and bis grantee, the-right of subrogation to tbe rights and remedy of tbe mortgagee; and he was no less at liberty to retain bis position as principal debtor, having tbe primary duty to pay it, and thus permit bis grantee to have the benefit of his liability and that of his estate for indemnity,, with the equitable right of subrogation for tbe purposes of remedy and relief.

But it is said that the principal upon which tbe right of subrogation is founded, and which governs its employment, will not permit its application in this case, because whatever the grantee took by bis deed was the gift of the' father, and it is not equitable or just for her to be permitted to seek more than ishe derived from the legal effect of the executed conveyance, which was the equity of redemption only. While this doctrine of subrogation does not exist in contract but is applied in support of remedies for the promotion of justice, and for that purpose is deemed guided by principles of equity, those-principles are quite well established and are in no sense capricious. It is a stable proposition that when one party is required to pay, and pays, the debt of another, and which such other ought to-pay, the former will, for the purposes of relief, be subrogated to the remedies of the creditor. There is no apparent reason why a. person may not give to another property for which he has incurred an undischarged liability to pay, and the debt be still treated as his for the purposes of relief of his donee, although secured by lien upon the property. His duty to the latter to pay it may be no less, for that reason, if such was the intent. That, in our view, is this case, and the right of subrogation for relief followed the payment of the debt, or any portion of it, by the petititioner to the extent of such payment by her; and in this respect the case is distinguished from Duvoll v. Wilson (supra). In that case there does not. appear to have been any personal liability of the grantor. If that had been the case here the respondent would have been. without remedy, because the executory covenants would not afford it to her, and as a consequence the land would necessarily have been the primary fund for the payment of the mortgage debt, but the personal liability of her grantor remaining, the superior obligation rested with him to pay, no less, because it was secured by the mortgage. The ease, therefore, fairly comes within that of Cole v. Malcolm (66 N. Y., 363), and the respondent is entitled to-be subrogated to the remedy possessed by the mortgagee, to charge her grantor or his estate, arising out of his personal liability to pay the debt for the purposes of reimbursement of the amount paid by her upon it. (Barnes v. Mott, 64 N. Y., 397-402.) This is not put upon the ground that she derived from her grantor any undertaking on his part to pay, but because it was his debt that she has been required to pay and has paid.

The decree should be affirmed.

SMith, P. J., BARKER and Haight, JJ., concurred.

Decree of the surrogate affirmed, with costs to the respondent, but to include but one argument fee.


text:
    JANE HUTCHINSON, Respondent, v. WILLIAM P. GROUT, Appellant.

      Undertaking on an adjournment in a Justice’s Court — Code of Civil Procedure, sees. 2961, 2962 — the liability of the surety extends to a judgment recovered on a new trial in the County Court on an appeal.

    In an action brought by tbe plaintiff in a Justice’s Court against one McLeod, an adjournment was, upon tlie application of tbe defendant, granted upon bis giving an undertaking in tbe form required by section 2962 of tbe Code of Civil Procedure, executed by bimself and the defendant. Tbe plaintiff, being dissatisfied with tbe judgment which be recovered in tbe Justices’ Court, appealed to tbe County Court, where, upon a new trial, be recovered a larger one, upon which an execution was issued and returned unsatisfied. More than ten days after tbe recovery of tbe judgment in tbe Justices’ Court, but before tbe new trial in tbe County Court, McLeod sold, disposed of, and secreted money and other property, both real and'personal, owned by him, and liable to levy and sale by virtue of an execution, for purposes other than for tbe necessary support of himself and bis family.

      This action, brought by the plaintiff upon the undertaking, was defended by the surety upon the ground that his liability thereunder could only be founded upon a judgment recovered before the justice, and not upon one recovered in the County Court, and that the ten days within which the defendant must refrain from disposing of his property were to be computed from the time of the rendition of the justice’s judgment.

      Reid, that the claim was untenable, and that the plaintiff was entitled to recover.

      •Quaere, as to whether the transfer or assignment of real estate by the debtor is a disposition of property, “liable to levy and sale by virtue of an execution,” within the meaning of section 2962 of the said Code. (Per Bradley, J.)
    Appeal by tbe defendant from a final judgment, entered upon tbe decision of tbe Niagara County Court, overruling a demurrer to tbe complaint, after a default, in compliance with an interlocutory judgment entered on sucb decision.

      M. M. & C. M. Southworth, for the appellant

      Henry M. Dmis, for tbe respondent.
   Bradley, J.:

The plaintiff brought an action in Justices’ Court against one McLeod, who on tbe return day of the summons appeared, and after issue joined made application for an adjournment, and being so required by tbe plaintiff gave tbe requisite undertaking, executed by bim and the defendant, and an adjournment was granted. Tbe trial afterward had in tbe Justices’ Court resulted in a judgment there in favor of tbe plaintiff for thirty-eight dollars and costs, tbe amount of which judgment McLeod paid to the justice.

The plaintiff then appealed to the County Court, where the action was retried in 1884, and he recovered a verdict for $100, upon which judgment was entered with costs, on which execution was the same day issued against tbe property of the defendant therein, and. afterwards returned wholly unsatisfied, and payment of the amount of the judgment was demanded of the defendant and refused by him. Shortly after the adjournment was had in Justices’ Court, and from time to time thereafter, and before the trial in the County Court, McLeod “ sold, disposed of, secreted and, removed money and other property, both real and personal, of the value of about $2,000, owned by him in the county of Niagara,” and liable to levy and sale by execution, which was not so sold, removed, disposed of or secreted for the necessary support of himself and his family.” These facts were alleged in the complaint and judgment demanded for the amount of the recovery in the County Court. The defendant’s demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action, being overruled, with leave, etc., interlocutory judgment was entered.

The defendant being in default in not answering over, etc., final judgment was entered, from which this appeal is taken. And the question presented is whether the undertaking made by the defendant was effectual to charge him with liability.

'The statute provides that the undertaking in such case “ must be to the effect that if the plaintiff recovers judgment in the action, and if before the expiration of ten days after the plaintiff becomes entitled toan execution upon the judgment, the defendant removes, secretes, assigns, or in any way disposes of any part of his property liable to levy and sale by virtue of an execution, except for the necessary support of himself and his family, and if an execution upon the judgment is returned wholly or partly unsatisfied, the sureties will, upon demand, pay to the plaintiff the sum due upon the judgment. (Code Civ. Pro., § 2962.)

The counsel for the defendant contends that liability furnished by such an undertaking can be founded upon a judgment recovered before the justice only, and that the time within which the judgment debtor must refrain from disposition of his property for the protection of his surety against liability is ten days after the rendition of the justice’s judgment. The trial in the County Court was of the same action which was commenced in the Justices’Court, and the judgment in question was recovered in no other action. The statute does not in terms limit the effect of the undertaking to judgment and issue and return of execution in Justices’ Court, but seems to have reference to final judgment in the action. And the terms of the undertaking are, in fact and legal effect, as broad as the statute. (Richardson v. Kropf, 5 Daly, 385; affirmed, 60 N. Y., 634.)

The appeal for a new trial in the County Court operated to suspend the effect of the justice’s judgment, and by force of the statute the action was then pending in the appellate court as effectually as if it bad been originally brought there, and upon the recovery of the judgment in that court, that of the justice was in legal contemplation, and for all practical purpose, no judgment, so that the only judgment in the action is that of the County Court. (Burns v. Howard, 9 Abb. N. C., 321.) The situation is, that the action was commenced in J ustices’ Court, was tried in the County Court, and the judgment in the action there recovered. It would seem to follow that the disposition as alleged by the judgment .debtor of his property, the issue and return unsatisfied of execution on the judgment, followed by the demand of and refusal by the defendant, had the effect to charge him with liability upon his-undertaking within the meaning of the statute.

If McLeod had recovered in the Justices’ Court, and on appeal to-the County Court by the plaintiff she had obtained a verdict and judgment, it could not be said that she had before then been entitled to an execution upon a judgment in the action. And the fact that she did recover in the Justices’ Court, and may have been entitled to an execution if she had elected to take it, does not aid the defense. To make such election and take execution there,, required the waiver by her of the right given by statute to assert by appeal that it was not the judgment in the action. She had the right in that manner to deny that she was entitled to execution upon that judgment within the meaning of the statute. And in view of the effect of the judgment subsequently rendered in the County Court it cannot be said, for the purposes of the question here, that there was at any time a judgment in the Justices’ Court to support an execution.

The contention that the undertaking and its effect were confined to the proceedings in the court in which it was made, and that it had completely served its purpose when the action was taken into the County Court, is not supported by the apparent meaning or the reasonable interpretation of the statute. (Traver v. Nichols, 7 Wend., 434; Ball v. Gardner, 21 id., 270; Smith v. Crouse, 24 Barb., 433; Bennett v. Brown, 20 N. Y., 99 Doolittle v. Dininny, 31 id., 350; Humerton v. Hay, 65 id., 380.) The fact that the undertaking was made in aid of an interlocutory proceeding in the action before the justice does not seem important. Its statutory purpose is security for the protection, in the event of recovery i u the action, of the plaintiff’s remedy by execution, and that it may not be defeated by the voluntary disposition of property subject to levy and sale within the time specified. The security is not dependent upon recovery in any particular court, but in the action in whatever court it may properly be had.

But it is said that the term “ property liable to levy and sale by virtue of an execution,” so qualifies the character of the property referred to as to exclude real estate; that the execution in view is process upon which personal property only can be taken and sold, and that therefore the statute has reference only to executions issued upon justice’s judgment. While an actual levy upon personal property and custody of it, by virtue of the execution are required, to permit a sale upon such process, no formal levy is made on real property for that purpose. The judgment is but a general lien upon land, and it is by means of this process and the use made of it by th’e officer who executes it, that the judgment debtor is divested of title. This is done to collect the judgment and not to execute the lien, although the lien protects the right of the creditor so as to give beneficial priority to the effect of the sale and purchase as of the time it attached. It is by virtue of the execution that the sale is made, while the quantum of the estate sold is governed by the lien of the judgment. But unlike a levy on personal property, the officer acquires no special property in the land, nor is the owner divested of any title before sale, nor of possession until title is perfected under it. It is, however, not an inapt expression to say that the execution is levied upon the land which is subjected to and distinguished by the proceedings and sale by virtue of it, although no formal levy is required to be made. (Shepard v. Rowe, 14 Wend., 260 ; Parsons v. Bowdoin, 17 id., 14; Wood v. Colvin, 5 Hill, 228; Code Civil Pro., § 1252; Conard v. Atlantic Ins. Co., 1 Peters, 386, 443.)

In Colt v. Phoenix Insurance Company (54 N. Y., 595), the remark made is qualified by the application there made of it. The issuing of an execution, and proceedings taken by it, to sell land which was the subject of the general lien of a judgment, effected no change of property, and, therefore, was not the levy of an execution within the meaning of the condition of the policy of insurance in question there. And for like reason it is held that the general lien of a judgment is not within a condition of a policy against incumbrances. (Owen v. Farmers’ J. S. Ins. Co., 57 Barb., 518.) But if it be assumed that this section (2962) of the Code embraced in the term property liable to levy and sale by virtue of an execution, personal property only (which it is unnecessary now to determine), that is not important upon the question presented by the demurrer. The complaint alleges the disposition of personal as well as real property, which, in that respect, supports the cause of action without reference to the alleged disposal of real estate.

The judgment should be affirmed, with costs, with leave to the defendant to withdraw his demurrer and answer over within twenty days, on payment of costs of the demurrer and of this appeal.

Smith, P. J., Baeeek and Haight, JJ., concurred.

Judgment affirmed with costs, with leave to defendant to withdraw demurrer and answer over within twenty days, on payment of costs of the demurrer and of this appeal.


text:
    SELA B. BOSTWICK, Appellant, v. LYMAN L. SCOTT and NANCY A. SCOTT, Respondents.

      Effect of the payment to a sheriff, of the amount of a judgment, by one of several judgment debtors — of a subsequent assignment of the judgment to him — a judgment creditor’s action is not maintainable, until the remedy by execution has been exhausted.

    A bank having recovered a judgment against all the parties thereto upon a note made by Halleck and Nash to the order of the defendant Scott, ané$ indorsed ’by him as first, and by the plaintiff Bostwick as second indorser, issued an execution thereon to the sheriff, against the property of the defendants in the action. Bostwick paid the amount of the judgment and the fees to the sheriff, who returned the execution “ satisfied April 9, 1877, as to and out of the property of Sela B. Bostwick, and returned nulla bona as to the other defendants.” The amount of the judgment was paid to the bank, which then assigned the ■ judgment to Bostwick, who brought this action to set aside a conveyance of property by the defendant Scott as fraudulent. The referee found, as a conclusion of law, that the judgment was satisfied and that the assignment thereof gave the plaintiff no interest in it, and directed that a judgment be entered in favor of the defendant.

      Held, that the assignment of the judgment was effectual to vest in Bostwick the title thereto, and the right to enforce it as' against the makers and the prior indorser, but that the judgment entered in this action was proper, because it was not shown that any execution had been issued against the property Of the defendant Scott, and returned unsatisfied.
    Appeal by the plaintiff from a judgment, entered in Allegany county on the report of a referee in favor of the defendants.

      H. J. Swift, for the appellant.

      Adalbert Moot, for the respondents.
   Bradley, J.:

The action is in the nature of a creditor’s bill. The complaint charges that certain property of the judgment debtor, Lyman L. Scott, was transferred and conveyed to his wife, the defendant, Nancy A. Scott, in fraud of his creditors. The judgment was recovered by the Cuba National Bank against the makers and indorsers of a promissory note made by Halleck and Nash, payable to the order of the defendant, Lyman L. Scott, and indorsed by him as the first, and by the plaintiff Bostwick as the second indorser. Execution upon the judgment was issued against the property of the defendants therein to the'sheriff, and Bostwick paid the amount of it to the sheriff with his fees, who on the same day indorsed upon the execution the following return:

“ The within execution satisfied April 9, 1877, as to and out of the property of Sela B. Bostwick and returned nulla bona as to the other defendants.
“WM. H. WITHEY, Sheriff.
“L. B. BARTHOLOMEW, Deputy.”

And with such return the execution was on the same day filed with the county clerk. The amount of the judgment was paid to the bank and it assigned the judgment to the plaintiff Bostwick.

The referee found these facts and, as conclusions of law, determined that before the return of the execution the judgment was satisfied and discharged, and that the assignment of the judgment thereafter made to Bostwick gave him no interest in it, that after the collection of the execution he was only a simple contract creditor of Scott, the prior indorser; that the plaintiff is not entitled to maintain this action, and that the defendants are entitled to judgment.

We think the assignment by the bank of the judgment to Bosk-wick was effectual to vest in him title, and the right to enforce it as against the makers and Scott, his prior indorser. The liability of the makers and indorsers upon the note was not that of joint debtors, but was that of severalty only, and it is only by force of the statute that they can be joined as defendants in the same action (Laws of 1832, chap. 276); and the right given to join them as defendants does not have the effect to impair any other rights by way of several defenses, or any rights and responsibilities as between ■ themselves. (Id., §§ 5, 7.) The plaintiff was at liberty to pay the judgment creditor and take an effectual assignment of the judgment as against the other defendants in it; and in view of such several liability and relation of the makers and indorsers, founded as they are in fact upon independent contracts, there is no apparent reason why the payment by Bostwick of the amount of the judgment to the sheriff should so enure to the benefit of the other defendants as to enable them to assert, as against the plaintiff here, that the judgment was as to them discharged. The payment may be deemed a discharge of his liability, and he was permitted to take, as against the makers and the other indorsers, the place of judgment creditor by the assignment to him, and for that purpose the judgment may be treated as remaining operative. (Corey v. White, 3 Barb., 12; Kelsey v. Bradbury, 21 id., 531; Marsh v. Benedict, 14 Hun, 317; Eno v. Crooke, 10 N. Y., 60, 67.) This does not depend upon the right of subrogation, which is an equitable remedy for the protection and preservation of rights of sureties, or those having relations to persons or property by which they become charged or required to pay for the protection of their interests, that for which others are, as between them, primarily liable. Then equity will subrogate them to the rights and remedies of the creditor, in whatever form they may be, for relief and reimbursement. (Goodyear v. Watson, 14 Barb., 481; Barnes v. Mott, 64 N. Y., 402; Cole v. Malcolm, 66 id., 366.) And equity would do it, in a case like this, if necessary. But that is rendered unnecessary by the assignment voluntarily made by the original judgment creditor to the party entitled to the remedy; and because the several character of the relation of the defendants in the judgment, which is practically the same as between them as if the judgment had also been several, no aid of equity to enforce it in behalf of the plaintiff is necessary.

The cases cited to the contrary are those in which tiie liability of principal and surety exists in the same contract or undertaking,..or where their relations in fact are those of joint debtors, and for convenience or other purpose they have given to their agreement or •commercial paper the appearance of the relation of principal and surety, or of maker and indorser, as was the case in Booth v. Farmers and Mechanic's, National Bank (74 N. Y.,. 228). They are not applicable to the proposition here.

But although the judgment remained effectual in behalf of the plaintiff as assignee against the other defendants in it, it was necessary to the maintenance of this action that remedy by execution shall have been exhausted. And this could be evidenced only by return of execution unsatisfied as the action does not appear to be in aid of an outstanding execution. (Adsit v. Butler, 87 N. Y., 585 ; Royer Wheel Co. v. Fielding, 31 Hun., 274.) The action is founded upon the return made by the sheriff as before mentioned. But the difficulty is that the execution was paid by Bostwick while the judgment was held by the bank, and the sheriff received the money in satisfaction of it so far as related to the right of the judgment creditor. And he could not return the execution otherwise than satisfied. The officer had nothing to do with, and could not take notice of, any rights of the judgment debtors as between themselves. His duty was confined to the execution of this process as_ required by its terms and the law applicable to it. When it was paid by Bostwick the sheriff had no right to take any proceedings upon that execution other than to return it. His right to enforce it against the property of any of the judgment debtors then ceased. The return made by the sheriff cannot be treated as that of an execution unsatisfied as against any of the judgment debtors for the purposes of this action. And, therefore, the requisite steps pre-' liminary to the maintenance of the action in the form brought have not been taken. To support it required the issue of another execution and the return of it unsatisfied.

But it is contended that if the conclusions of law of the referee, as stated in his report in respect to the effect of the assignment of the judgment are not sustained, a new trial should be granted. The facts found required the result given by the decision of the referee, and there evidently is no dispute in the evidence as to the controlling fact which defeats the plaintiff’s right to maintain the action. It is not important that all the specific conclusions of law, asserted by the referee in his report are not sustained, as the judgment which he directed was the only one permitted by the facts found by him.

The judgment should be affirmed.

Haight, J., concurred ; Smith, P. J., and Baekee, J., concurred in result.

Judgment affirmed, with costs.


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    MARY MARSH, Appellant, v. WILLIAM R. McNAIR Respondent.

      Amendments to ‘pleadings — what terms will he imposed as a condition of granting them.

    Tbe plaintiff and ber son Charles assigned to one Gibson a policy of insurance upon the son’s life, as collateral security for a certain liability of the son to him. Gibson made a general assignment to the defendant, tc whom the plaintiff tendered the amount to secure the payment of which the assignment of the policy was made, and requested a reassignment of it to her, which was refused.
    .The plaintiff then brought this action, in which she alleged that the assignment was absolute in form and that she was induced to execute it iu such form by the representation made to her, and that she understood, that its only object and effect was as collateral security, and .demanded that the assignment be reformed, so as to conform to the agreement and purpose which produced it. The answer put in issue these allegations, and alleged that the assignment was in fact, as well as in form, an absolute transfer of the policy. On the first trial, parol evidence on the part of'the plaintiff was given, without objection, of the negotiations which led to the assignment and to the effect that it was made as security, which was controverted by evidence on the part of the defendant. The trial court found that the plaintiff understood, and that it was represented to her, that the assignment was only collateral security, but that the mistake was one of law, and that parol evidence was inadmissible to alter its absolute chai’acter. The General Term reversed this decision and ordered a new trial, upon which the plaintiff recovered a judgment, which was affirmed at the General Term, and reversed in the Court of Appeals, upon the ground that in the absence of allegations or findings of fraud or mutual mistake, parol evidence was inadmissible to prove that the assignment was other than its terms imported.
    A motion made by the plaintiff for leave to amend the complaint, by inserting ' allegations to show that the assignment was drawn and executed in an absolute form by a mutual mistake, was granted on tbe payment of all tbe defendant’s costs and disbursements in tbe action, and ten dollars costs of opposing the motion.

      Held, that the order should be modified by excluding from the terms imposed by it the defendant’s costs prior to the second.trial and so as to direct the payment of all the defendant’s costs from and including the second trial to the time of the amendment.
    The rules and practice of this court in imposing terms upon granting amendments considered, and the cases bearing thereon collated and examined by Bradley, J.
    Appeal from tbe portion of an order made at tbe Livingston Special Term wbicb requires tbe payment of ail tbe defendant’s costs and disbursements as a condition of tbe allowance of an amendment of tbe complaint.
    Tbis action was commenced in 1876; was first tried in 1878, when tbe complaint was dismissed. Tbis judgment was reversed and a new trial was granted by tbe General Term in October, 1881. Tbe second trial was bad in 1882, and resulted in a judgment for the plaintiff, wbicb was affirmed by tbe General Term, and on appeal to tbe Court of Appeals was reversed and new trial granted in May,. 1885. Tbe plaintiff’s motion afterwards made for leave to amend tbe complaint was granted on payment of all tbe defendant’s costs and disbursements in tbe action, and ten dollars costs of opposing tbe motion.

      J. B. Adams, for tbe appellant.

      E. A. Nash, for the respondent.
   Bradley, J.:

Tbe question presented on this appeal has relation only to tbe terms upon wbicb leave is given to tbe plaintiff to amend her complaint. The court may at any stage of tbe action, in furtherance of justice and on such terms as it deems just, amend any pleading (Code Civ. Pro., § 723), and such was substantially the provision of the prior Code (§ 173), and of 2 Revised Statutes (424, § 1). Tbe view of the court at Special Term was that precedents required-tbe terms imposed by tbe order, and referred to Prindle v. Aldrich (13 How., 466). The question is one of discretion, and there is no-governing rule furnished by adjudications wbicb excludes tbe circumstances of each particular case from consideration on such an application.

The complaint alleges that a policy of insurance on the life of her son Charles, of $5,000, was issued by the National Life Insurance Company to her, and that she afterwards joined with her son in an assignment of the policy to one Gibson as collateral security for a certain amount of liability of the son to him; that the son died, and ■Gibson, by his general assignment for the benefit of his creditors, transferred the policy to the defendant, to whom the plaintiff tendered the amount to secure the payment of which the assignment of the policy was made, and requested reassignment of it to her, which was refused, and that the assignment to Gibson was absolute in form and she was induced to execute it in such form by representation made to her, and she understood, that its only object and effect were as collateral security. The relief demanded is that the assignment to Gibson be so reformed as to conform it to the agreement and purpose which produced it, and that the plaintiff have the consequent benefits. The answer puts in issue those allegations of the complaint and alleges that the assignment to Gibson was in fact, as well as in form, an absolute transfer of the policy. On the first trial parol evidence ■on the part of the plaintiff was given, without objection, of the negotiation which led to the assignment, and. to the effect that it was made as security, which was controverted by evidence on the part of the defendant. The trial court found that the plaintiff •understood, and it was represented to her, that the assignment was ■only collateral security, and determined that such representation was •a mistake of law; that it was absolute and that parol evidence was not competent or effectual to give to it the character of collateral security, and that the complaint should be dismissed. When the •case came to the General Term it was held that parol evidence was •competent to show that the assignment was intended as security and that court reversed the judgment and ordered a new trial. (25 Hun, 314.) And the plaintiff’s recovery on a new trial having been affirmed by the General Term and appeal taken to the Court of Appeals, it was there held that, as the instrument by which the assignment was made embraced the elements of an agreement beyond a mere assignment, parol evidence under the complaint was not competent to prove that it was other than what its terms imported. And that, in the absence of allegation or finding of mutual mistake or fraud, it must be treated as absolute. And reversed the judgment and directed a new trial. (99 N. Y., 174.)

The plaintiff’s proposed amendment is to insert that the assignment was, by mutual mistake of the parties to it, drawn and executed in absolute form, and some other mattters incidental to such allegation. 'The purpose of the action and the character and extent of the relief will not be changed by the proposed amendment, but it is, nevertheless, of vital importance within the holding of the court, because without the amendment the plaintiff can have no standing with her action in court. Similar statutes providing for amendments of pleadings have been in existence for more than half a century, and if the courts have adopted a well defined governing rule applicable to this case in respect to terms upon which they may be granted, it must be followed.

In Saltus v. Bayard (12 Wend., 228), after a cause had been at issue two years, and twice noticed for trial, the plaintiff was allowed to amend his declaration by adding a new count upon the same cause of action on payment of only costs of the motion, unless the pleas were withdrawn or a new defense rendered necessary by the amendment, in which case on payment also of the pleas. Without the amendment the plaintiff could not there recover.

In Downer v. Thompson (6 Hill, 377) the plaintiff was non-suited at the trial, which was affirmed by the Supreme Court, and reversed and new trial granted, with costs to abide the event, by the Court of Errors. The declaration was for goods bargained, sold and delivered, and the nonsuit and affirmance were upon the ground that the evidence did not support that form of action, and that it would not lie except on special assumpsit for not accepting goods. And although the Court of Errors held that there was sufficient to go to the jury upon the cause of action alleged, the plaintiff moved for leave to amend, and it was granted upon his payment of all the defendant’s costs subsequent to the plea. This was treated as permission to make a new declaration by way of amendment to the old one.

In Alston v. Mechanics’ Mutual Insurance Company (1 How., 82) the plaintiff moved to amend his declaration by changing the form, of the action from covenant to assumpsit, and the motion was granted on tbe payment of costs of the motion only. The motion was made after the cause had been through the Court of Errors on-review of the first trials, and the recovery on the second trial had been set aside by the Supreme Court.

The cause of action alleged was covenant on a policy of insurance, which was not in fact under seal and, therefore, covenant would not lie, but the objection was not taken until on review of the second trial. And that case is distinguished by the court from Downer v. Thompson, in the fact that in the latter case the objection was taken by the defendant at the first opportunity, and say that, “ in all these cases of amendments, the terms are discretionary, depending upon the circumstances of each case.”

In Carrier v. Dellay (3 How., 173) leave was given after a trial, and a new trial granted, to amend the declaration by changing the form of the action from trespass to trover, which, was necessary to sustain it. The court there required the payment of all the defendant’s costs, which is stated to be the rule when the amendment changes the entire form of the action, and the objection is-taken at the first opportunity.

In Brown v. Babcock (3 How., 305), the action was debt on a bond, and the administrator of the deceased obligor and the survivors were joined as defendants, which would defeat recovery. The motion was before trial, and the amendment applied for was to strike out the names of all the defendants, except that of the administrator, and it was allowed on payment of all the defendant’s costs, and of the motion if the defendant abandoned his defense, but if he asks to jilead and set up other defenses, the plaintiff was required to pay only the costs of the former plea and ten dollars costs of opposing the motion.

In Chapman v. Webb (6 How., 390) the complaint was for goods sold, and the plaintiff moved to amend by alleging that the goods were procured by fraudulent representations to overcome the-alleged defense that they were sold on a credit which had not expired. The amendment was allowed on payment of the costs of the term and of the motion unless the defendant changes his defense, in which case on payment of all his costs.

In Troy and Boston Railroad Company v. Tibbits (11 How., 168) the application to amend was made after recovery by the plaintiff had been reversed, and a new trial granted. And it was allowed on payment of all the defendant’s costs. The subject of the action remained the same, but the amendment proposed would add new and essential allegations, present new issues and require a new line of defense.

In Prindle v. Aldrich (13 How., 466) the terms upon which the plaintiff was allowed to amend his complaint required the payment of all the defendant’s costs and costs of opposing the motion, and this was after the plaintiff’s recovery had been reversed and new trial granted.

His action was to recover $510 on open account, and the proof established a settlement and agreement of the defendant to pay the plaintiff $100, which was the situation requiring the amendment. The court distinguished the case from one where the amount and character of a claim remained essentially the same after as before the amendment, and the amendment is only an additional averment of fact necessary to charge liability on a defendant, and cites some cases where such amendments have been allowed on more moderate terms.

In McGrane v. The Mayor (19 How., 144) the plaintiff was allowed to amend his complaint by inserting an essential condition precedent to his right of action, on payment of all the defendant’s costs after the answer. This was allowed after the plaintiff’s recovery had been reversed and new trial ordered.

In Turner v. Hillerline (14 How., 232) the motion to amend by striking out the name of a defendant improperly joined, was allowed on payment of ten dollars costs, and five dollars more if the defendant amended his answer. '

In Flowers' Executors v. Garr (20 Wend., 668) the motion to amend was made after trial. No objection was made by the defendant until after the evidence was closed. He fully understood the object of the action, and the cause had been litigated without any reference to the pleadings. The amendment was allowed on payment of the defendant’s costs from and after the time the objection was taken. And in Proctor's Administratrix v. Andrew (1 Sandf., 70), and Smith v. Proctor's Administrators (Id., 72), the motions to amend were in like manner disposed of.

The authorities to which our attention has been called, quite uniformly aro to the effect that in the allowance of amendments which change substantially the nature or subject of tfie cause of action, such terms are imposed as may indemnify the defendant for Iris taxable costs incurred in the action, provided he has raised the objection at the first opportunity; but when the litigation has proceeded without reference to the character of the pleadings, that fact is considered in the imposition of terms, and then such rule is-not deemed the governing nor necessarily the guiding ono for the discretion of the court. In the case at bar no change in the subject of the action, its purpose or relief is sought by the amendment, but the new allegations are necessary to permit the introduction of evidence to establish the cause of action. The purpose of the action,' as appears by the original complaint, is to obtain an adjudication that the instrument in question was made as security only, and the relief in view would follow as the result. The defendant understood all this, and by his answer he controverted the allegations of the complaint in that respect.

On the first trial no objection was taken to the parol evidence, tending to prove that such was the purpose of the assignment as it was understood by parties to it, and showing the circumstances and negotiation leading to and attending the making of such assignment. And we are not led to understand from the decision and opinion of the trial court, that any question on the pleadings was raised before- or considered there, but that the court put its decision on grounds, which embraced the conclusion that the mistake related to the legal effect of the instrument, and was a mistake of law rather than of fact, and for that reason no relief by way of reformation could be afforded by parol evidence. The second trial evidently proceeded in conformity to the decision of the General Term, and- parol evidence was probably received only with a view to the question whether the instrument was intended as security. It does not. appear how the exception was taken on that trial, which presented to the Court of Appeals the question there determined, but it must, have been taken in some manner upon the trial, as in the opinion there delivered the court held that parol evidence was incompetent to prove that the assignment was intended as collateral security. We think, in view of what appears, the terms imposed ought not to-include the payment of the defendant’s costs incurred prior to the-second trial, if the defense is continued after the amendment; but that those of, and subsequent to, that trial were in the exercise of the discretion of Special Term properly embraced in the terms. While the amendment does not change or enlarge the subject of the action or the relief, it does, in view of the decision of the Court of Appeals, add substantial allegations which constitute the ground upon which the right to maintain the action rests. The alleged cause of the-action is that the written instrument does not correctly represent the agreement made between the parties to it, • and the purpose of the action is the reformation of such instrument.

The ground which gives support to an action for such purpose is-the mutual mistake of fact of the parties to a written instrument, and in the absence of fraud such mistake is the sole ground upon which such relief is founded. The omission of such allegations in a pleading is not a clerical or technical defect, but is a failure to-allege the substantial cause which affords the remedy by action and the right to relief, yet if evidence to that effect were received without objection, a finding of the fact of such mistake might, under the system of practice furnished by the Code, support the conclusion of relief; and if deemed necessary the complaint would, in such case, be amended to conform it to the facts proved. On the first trial this may not have been done, for the reason that the court there treated the mistake as one of law only; and on the second trial the case proceeded on the theory directed by the decision of the General Term, and it may be that objections then taken did not permit the court to find such mistake if warranted by the' evidence. At all events the exceptions which presented the questions decided by the Court of Appeals were in the record for review of that trial, and the matter sought to be added by the amendment is vital and fundamental to the right of action and to furnish cause for relief. In view of the circumstances before adverted to, the order should be modified by excluding from the terms imposed by it the defendant’» costs prior to the second trial, só as to direct the payment of all the defendants’ costs, from and including the second trial, to the time of the amendment; and as thus modified the order should be affirmed, without costs of this appeal.

BARKER and Haight, J J., concurred.

Order modified so as to exclude from the terms imposed by it the defendant’s costs prior to the second trial, and to direct the payment of all the defendants’ costs, from and including the second trial, and as so modified affirmed, without costs of this appeal to either party.


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    ALONZO HORTON, as Overseer of the Poor of the Town of Hanover, Respondent, v. ADNA P. PARSONS, Appellant.

      Evidence — when insufficient to establish an unlawful sale of spirituous liquors.

    Upon the trial of this action, brought to recover penalties for selling spirituous liquors without a license, it appeared that on each of the three different occasions, upon which it was claimed that the offense had been committed, one Knapp was by another person furnished with a half-pint bottle and twenty-five cents and requested to get some whisky; that Knapp went to the defendant’s drug store, where the bottle was filled with whisky and taken away by him. No evidence was given as to what occurred in the store. The defendant was a practicing physician and surgeon, and kept whisky in his store for the purpose of preparing and compounding medicines.

      Held, that the evidence was not sufficient to sustain a verdict finding the'defendant guilty of selling the whisky, and that the court erred in denying a motion for a nonsuit.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Chautauqua Circuit, and from an order denying a motion for a new trial made upon a case and exceptions.
    The action was brought to recover penalties for selling spirituous liquors without a license. The complaint charged the sale by the defendant of strong or spirituous liquors or wines without license in the town of Hanover, county of Chautauqua. The defendant by his answer denied such charge. The plaintiff recovered a verdict for $150.

      Julius A. Parsons, for the appellant.

      W. S. Thrasher, for the respondent.
   Bradley, J.:

The question whether the original plaintiff had the right to institute the action, and the plaintiff on being substituted as such to continue it, have been contested in another action between the same parties and decided adversely to the defendants. (37 Hun, 42.)

The defendant’s motion for a nonsuit was denied and an exception taken. And thus is presented tbe question whether the evidence was sufficient to support the verdict. The evidence justifies the conclusion that on each of three occasions one Knapp was, by another person, furnished with a half-pint bottle and twenty-five cents, and requested to get some whisky; that Knapp went to the defendant’s drug store, where the bottle was filled with whisky and taken away by him ; what occurred in the store, and the circumstances attending the transaction of obtaining the whisky does not appear hy any evidence given on the trial. The question is whether the facts thus given support the charge upon which the right to recover depends. The action is brought under the statute which provides that “ whoever shall sell any strong or spirituous liquors or wines in quantities less than five gallons at a time, without having a license therefor, granted as herein provided,,shall forfeit fifty dollars for each offense.” (Laws of 1857, chap. 628, § 13.) A sale is therefore requisite to the cause of action. While it may be assumed that the whisky was obtained from the defendant with his consen tit does not necessarily follow that it was sold by the latter or that it was obtained by purchase. The defendant was a practicing physician and surgeon, and the evidence tends to prove that he kept whisky and other liquors in his drug store “ for the purpose of preparing and compounding medicines.” This he had the right to do in a proper manner. And so far as relates to the cause and the purpose of this action, he was not charged with liability if he gave the whisky to Knapp on the occasions in question. The case presents the proposition whether, when an act may be done with or without violation of law, the latter is to be inferred in preference to innocence. The general rule is that illegality is not to be presumed, but, on the contrary, everything must be presumed to be legally done until the contrary is proved. (Bennett v. Clough, 1 Barn. & Ald., 460.)

The violation of law by the defendant must, therefore, depend upon proof and cannot rest in presumption. The sale and purchase did not require payment for the whisky to render it illegal, nor necessarily, upon any express promise, to pay for it. If the person who obtained the liquor had asked the defendant for it, and the latter, without qualification, had, upon such request, delivered it to ' ' him, it might have been treated as a sale, because such a transaction ordinarily would produce an implied promise to pay. And for the-purposes of an action the fact that the performance of the promise could not be enforced by reason of the invalidity of a sale, would not be important as matter of defense. And a gift will not usually be presumed. When a party keeps property for sale, the obtaining of it from him will furnish some evidence that it was obtained by purchase, and such, without explanation, would be the presumption, but it cannot be presumed that the defendant kept strong or spirituous liquor at his store for sale in violation of law, and proof is required to establish that he made the alleged sales or that the delivery was made with intent to sell the liquor. (Commonwealth v. Packard, 5 Gray, 101.)

The plaintiffs counsel contends that the inference was permitted by the circumstances, that the liquor was obtained by purchase, and that it is supported somewhat by the failure of the defendant to testify on the subject. There are cases where the omission of a party charged, to furnish the evidence under his control, may be taken against him as a circumstance, but that rule applies when there is sufficient evidence to justify the finding of the fact against him, and in such case his omission to produce evidence at his command to controvert it if not true, may be considered in support of such evidence and the fact which it tends to prove. There may and may not have been a sale, and to constitute it required an agreement, express or implied. Without the element of sale in the transaction, the act of the defendant in letting the person who obtained the liquor have it, was, in the legal sense and for the purposes of this action innocent, and the delivery of it to him consistent with innocence, and to give it the contrary effect, requires the presumption that the defendant intended to, and did, violate law when the act as proved may have been otherwise. A delivery unqualified by any explanation may, under ordinary circumstances, be evidence of sale. In this case it may be assumed that the liquor was received from some one in the defendant’s store, but without any evidence other than that of inference, can it be presumed that the delivery was of such character and under circumstances which charged the defendant with the offense in question %

There is nothing here tending to prove that the defendant kept liquor for sale, or that be bad been in tbe babit of making any sales of it. Tbe charge made by tbis action is penal, and tbe burden is with tbe plaintiff to establish by evidence tbe violation of law by tbe defendant. Tbe mere fact that the liquor was obtained at his store, unsupported by any evidence other than inference that it was delivered by tbe defendant or some one in bis service, does not satisfactorily establish tbe offense charged. The case is not that which would be presented if evidence had been given of tbe act of delivery without qualification of purpose.

"Where inference alone is relied upon for the act of delivery and tbe circumstances attending it, tbe character of tbe act must, as evidence, be dependent upon presumption. There is nothing here of suspicious conduct apparently to conceal tbe act of furnishing liquor by tbe defendant which might characterize it and furnish evidence of guilt and liability. -But the bare question is presented whether the fact that a party obtains spirituous liquor at a place where it is not lawful or customary to sell it, and without the aid of evidence of any attending circumstance, is fairly sufficient to justify the conclusion that the transaction is a sale, in support of an offense charged of violation of law and of liability for a penalty. It is difficult, and we do not now attempt to define any rule by which the sufficiency of evidence in such cases should be governed. A charge of violation of the statute may be supported by evidence of circumstances which indicate a purpose to evade it. And subterfuge will not, when exposed, be allowed to defeat the operation and enforcement of the statute.

We think a new trial in this, case must be granted. The judgment and order should be reversed and a new trial granted, costs to abide the event. ■

Smith, P. J., and Barker, JJ., concurred.

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


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. PETER A. PORTER and Others v. HENRY S. TOMPKINS and Others, Assessors of the Town of Niagara, and THE BOARD OF SUPERVISORS OF NIAGARA COUNTY, Respondents.

      Writ of certiorari to review an erroneous assessment — it must issue before the roll lias been delivered to the boa/rd of supervisors.

    A writ of certiorari was issued on December 5, 1885, to the assessors of the town of Niagara and the hoard of supervisors of that county, to review an assessment made against the relators on certain 'lands known as the Goat Island property. The relators claimed that at the time when the assessment must be deemed to have been made, viz., on July 1, 1885, the title to the lands in question had passed from the relators and vested in the State, under the proceedings instituted under chapter 836 of 1883, and chapter 182 of 1885.

      Held, that even if this were the fact, yet, as at the time of the issuing of the writ the roll had passed from the possession and control of fhe assessors, the writ should be quashed.
    That the fact that the writ ran to the board of supervisors, in whose possession the roll was, as well as to the assessors, did not change the result.

      People ex rel. Ra/plee v. Reddy (43 Barb., 539) and People ex rel. Bay State 8. andL. Company v. McLean (5 Abb. N. C., 137) distinguished and not approved.
    Proceeding by certiora/ri to review an assessment made by the assessors of the town of Niagara against the relators on lands known as the Goat Island property.

      Sprague, Morey db Sprague, for the relators.

      Demid Millcvr, for the respondents.
   Bradley, J.:

The assessors of the town of Niagara assessed the property in question to the relators at the sum of $225,000. The main ground upon which the alleged claim for relief is founded is, that at the time the assessment was made, the title to the property was not in the relators, but had passed from them to the State of New York by appropriation of it pursuant to chapter 336 of Laws of 1883, entitled An act to authorize the selection, location and appropriation of certain lands in the village of Niagara Falls for a State reservation, and to preserve the scenery of the Falls of Niagara,” and chapter 182 of Laws of 1885, entitled An act to provide for the payment of the awards made for the lands selected and located by the commissioners of the State reservation at Niagara,” and pursuant to the proceedings taken under the first mentioned act, which provides for the appraisal of compensation to owners of certain lands, including those in question, by commissioners, and for application to the court for the confirmation of their report, the purpose of which was to acquire the title to them for the objects mentioned in the title of the act. The appraisal and report were duly made, and, in October, 1884, were confirmed by the order of the court.

It was also provided by the first act that unless the legislature, within two years after its passage, made an appropriation to pay the owners of the lands the compensation awarded, the proceedings taken under it should be void. "Within that time, and on the 30th day of April, 1885, the secondly above mentioned act was passed making the requisite appropriation for such purpose, which continued the operation of the previous act and gave effect to the proceedings taken under it to acquire the lands in question.

The right of the assessors to assess this land to the relators depended upon the ownership of it by them on the day the assessment is deemed by statute to have been made. That day was the 1st day of July, 1885. (1 R. S., 390, § 8 ; Mygatt v. Washburn, 15 N. Y., 316 ; Clark v. Norton, 49 id., 243; Overing v. Foote, 65 id., 263.) Prior to that time the right of the State to take land and that of the relators to obtain the awarded compensation had become fixed. This was accomplished by the confirmation of the report and appraisal and the appropriation to pay it. (Matter of R. and C. R. R. Co., 67 N. Y., 242; affirming, 8 Hun, 34.) It is contended, on the part of the relators, that this situation operated to vest the title in the State, and there is some force in this contention. The statute does not, in express terms, declare when title shall pass, but it does provide that the proceedings are taken for the purpose of acquiring title to the lands (Laws 1883, chap. 336, § 3); and “ that the State shall not take possession of the said appraisedt premises until the amount awarded for the same shall have been duly appropriated by act of the legislature of this State for this purpose.” (Id., § 9.)

There is no expressed, qualification of the right derived from such confirmation and appropriation in respect to the title, and the question is one of their legal effect in view of the purpose for which they were taken. The fundamental principle and rule that private property shall not be taken for puplic use without just compensation (Const., art, 1, § 6), requires that the payment of the compensation be made certain before the title or possession of the owner can be divested. Hence, payment by a private individual, seeking to take property for a public purpose, is a prerequisite to the right because the credit of such person or corporation would not give certainty, in the legal sense, that the compensation would be made or could be obtained, bur such rule does not apply to a municipal corporation or the State, when an appropriation has been made and the right afforded to the property owner to proceed to obtain the sum awarded. Then there is an adequate fund provided and the means of obtaining payment rendered certain. (Bloodgood v. M. and H. R. R. Co., 18 Wend., 9, 18; Rexford v. Knight, 11 N. Y., 308, 314; Rider v. Stryker, 63 id., 136; Chapman v. Gates, 54 id., 145; Ballou v. Ballou, 78, id., 325.)

In the case last cited, the statute provided that the title should vest in the State when the appraisement should be made and recorded (1 R. S., 226, § 52), but when the statutory declared purpose is to acquire the title, and the proceedings and means provided by the statute are requisite to accomplish it, and they have been fully observed and completed, it would seem to be sufficient to effectuate such purpose without the aid of an express declaration of the statute of such result. That was the situation in respect to the premises in question on the 1st day of July, 1885. The requisite completed proceedings had been taken and the funds provided for the payment of the compensation, and the relators had adequate and certain remedy to obtain them.

This is all that was required to enable the State to take title for the public purpose in view, unless the statute may be so construed as to make the vesting of it with title dependent upon something further, or as to delay such result until some later event or time. It is suggested that the provision of the statute that upon deposit or tender of said awards respectively, the commissioners may enter upon said lands and take possession thereof on behalf of the State of New York ” (Laws of 1885, chap. 182, § 1), had the effect to make the vesting of title depend upon payment or tender of the sum awarded.

There is some apparent force in this view, but it is difficult to ■see that this provision of the statute had the effect to modify the relation of the parties to the land, in respect to the title given by the prior act, and the proceedings under it supported and effectuated by the appropriations of the requisite funds, although it may have had the effect to delay the act of taking possession.

Their rights of property would seem to have become fixed when such appropriation was made in April, 1885. Then subsequently, and in May, 1885, another act was passed in respect to the occupation and management of the property by the State (Laws of 1885, ■chap. 286), which accomplished so far as required by legislation the purpose and plan in view and initiated by the first mentioned act. JBut in any view that may be taken of this question of title, we are unable to see how any relief can be afforded to the relators in this proceeding. The writ of certiorari was issued in December, 1885, directed to the assessors and board of supervisors. At that time the assessment-roll had passed from the possession and control ■of the assessors, and any attempt to require them to correct the roll would necessarily be ineffectual. They are by statute directed to deliver the assessment-roll to the supervisor of their town on or before the first day of September. (1 R. S., 394, § 27.) And by their return it appears that this was done by the assessors. The writ, therefore, as to them, is not supported. (People ex rel. Marsh v. Delaney, 49 N. Y., 655 ; People ex rel. Law v. Commissioners, etc., 9 Hun, 609; People ex rel. Raplee v. Reddy, 43 Barb., 539 ; People ex rel. L. S. and M. S. R. R. Co. v. Dunkirk, 22 N. Y. W. Dig., 240; People ex rel. Heiser v. Assessors, 16 Hun, 407.)

But it is contended that as the writ was issued to the' board of supervisors while the roll was with them, it brings it up and the court may declare the assessment illegal and order it stricken out. The •office of the writ of certiorari is to review and correct errors committed by tribunals or officers when exercising judicial or quasi judicial powers. (People v. Mayor, 2 Hill, 9; People ex rel. Oneida Valley Nat. Bank v. Supervisors, 51 N. Y., 442 ; People ex rel. S. and U. H. R. R. Co. v. Betts, 55 id., 600.) When it involves the inquiry whether the action and determination were legal and should be set ■aside or confirmed, it may be seen that the writ may be effectual after the powers of the tribunal or officers have ceased as to the matter in question, because it is mere matter of review, but when the purpose of the proceeding is to have the direction of the court for those to whom the writ is issued, to do soma act by way of correction of an error, it must, we think, be within the power of such officer or tribunal to perform the act. The writ was sent out to review the action of the assessors. They acted judicially in respect to the question of the assessment of tho property, and had the power to strike out any assessment which its correction required. But the board of supervisors, after the roll went to it, could exercise only such powers as were conferred upon them by statute.

While they had some judicial duties to perform, they did not embrace the ¡lower of striking out an assessment. Amongst them is the power to equalize, by increasing or diminishing the aggregate valuations of real estate in any town, by adding or deducting a percentage of the valuations, so as to produce a just relation between al'l the valuations of such estates in'-the county, “ but they shall in no instance' reduce the aggregate valuations of all the towns below the aggregate valuation thereof as made by the assessors.” (1 R. S., 395, § 31 ; Bellinger v. Gray, 51 N. Y., 610.)

Our attention is called to no case in which the question arose supporting the contention that the writ in such case may effectually issue and go to the board of supervisors after the roll has come to them, or that review can be had and such relief given when the writ has been issued after the roll had legitimately passed from the assessors to the board of supervisors. In People v. Reddy (supra), the justice delivering the opinion remarked that “when it appeared upon this return that the roll had been delivered to the supervisors, we could have directed a writ of certiorari to him or to the board of supervisors, if the roll had been delivered to such board, to bring the same before us. The writ would reach the record and bring it up wherever it might be, until it had passed beyond our power to review the assessment, by delivery to the collector, with the warrant of the board of supervisors annexed.” The question did not there arise, and this suggestion was obiter.

In People ex rel. Bay State S. and L. Company v. McLean (5 Abb. N. C., 137) the return made by the assessors to the writ was that tlie roll bad -been delivered to the supervisor, and a supplemental writ was issued to tlie supervisor directing bim to produce tlie record before tlie court, wliieli was done, and the court held that there was “ no difficulty about striking the assessment from the roll, as that has been brought into this court by the supervisor, in whose hands it now is.” This was affirmed at General Term (17 Hun, 204) and by Court of Appeals (80 N. Y., 254) ; but in the latter court the question was not considered further than to say that the appellants were concluded from now raising the objection that certiorari was not a proper remedy, * * * assuming that, if seasonably taken, the objection should have prevailed.” (And see People v. Supervisors, 31 How., 237.) It is difficult to see how, by the writ issued to the board of supervisors, can be effectually reviewed the action of the assessors for the purpose in view.

We are inclined to think that the relators have mistaken their remedy, that the proceeding by certiorari cannot be supported, and that the writ must bo quashed.

BARKER and Haight, JJ., concurred; Smith, P. J., concurred in result.

Writ of certiorari quashed, without costs.


text:
    In the Matter of the Probate of the Last Will and Testament of TIMOTHY CLARK, Deceased.

      Probate of a will — a motion for a new trial, after a verdict of a jury upon a trial ordered by ike General Term, must be made at Special Term— Code of Civil Procedure, sees. 3548, 2588 — a husband is not interested in the event of an action affecting his wife's title to real estate — Code of Civil Pi'ocedure, sec. 829 — declaro.-tions of a testator — when admissible to show his mental condition.

    Where a decree of a surrogate admitting a will to probate has been reversed by . the General Term, and the question as to whether the execution of the will has been procured by undue influence has been directed to be tried by a jury, which has answered the question in the affirmative, a motion for a now trial should, since the adoption of the Code of Civil Procedure, be made at Special and not, as formerly, at General Term.
    The facts of this case were held to be sufficient to justify a verdict finding that the execution of the will was the result of undue influence.

      The contestants called the husbands of two of the daughters of the testator who took nothing under the will, and these husbands gave evidence of conversations had by them with the testator, to which objections and exceptions were taken upon the ground that the witnesses were interested in the event and that their testimony was inadmissible under section 839 of the Code of Civil Procedure, for the reason that they might take, as tenants by the curtesy on surviving their wives a life estate in the real property which the wives might inherit.

      Held, that the husbands had no interest in the event of the action, in the legal sense of that term.
    The will was made on September 5,1883, and the testator died on the nineteenth of the following November at the age of fifty-nine years. The testator, although of sound and disposing mind and memory, was, at and from the time the will was made until his death, in feeble health. Upon the trial the contestants were allowed, against the objection and exception of the proponents, to prove declarations of the testator, made in November after the execution of the will, relating to the will he had made, and to one which had been prepared in accordance with his instructions, but which he did not execute, and as to which he said that his wife objected and he had to make another.

      Held, that the declarations were admissible as bearing upon the mental vigor and condition of the testator at the time of the testamentary act.
    Appeal from an order of tbe Erie Special Term, denying a motion for a new trial of issues tried at tbe Genesee Circuit.
    The will of Timothy Clark, deceased, was admitted to probato and record by the surrogate of Genesee county. And on an appeal taken by the contestants to the General Term of this court, the decree of the surrogate was reversed, and a trial by jury directed of the question, “ Was the execution of the will procured by unduo influence?” The trial was had and the jury, by their verdict, answered in the affirmative. The proponents’ motion for a new trial was denied, and they appealed.

      L. N. Bangs, for the proponents, appellants.

      George Bowen, for the contestants, respondents.
   Bradley, J.:

The practice of the proponents in making their motion for a new trial at the Special Term, instead of the General Term, was correct, although it was otherwise before the provisions of the Code of Civil Procedure, became applicable to proceedings in and arising •out of Surrogates’ Courts. Before then the only statute providing for the trial of such issues by jury, on reversal of a surrogate’s decree in wiil cases, and for granting new trials, was given by 2 Revised Statutes (67, § 58), by which the power was in the Supreme Court ■to grant a new trial of such issue u in the same manner as if it had been formed in a suit originally commenced in such court.” At the time of the adoption of the Revised Statutes the Supreme Court consisted of a chief justice and two justices (Const. 1821, ■art. 5, § 4), and its powers and jurisdiction are mentioned and its terms designated by 2 Revised Statutes (196, 197, §§ 1, 3). Special Terms were first provided for and to hear non-énumerated business by Laws 1830 (chap. 185, § 1); and Special Terms in counties for specified purposes not embracing motions for new trials by Laws, of 1847 (chap. 280, § 20). Thereafter appeals from surrogates’ decrees were taken to the General Term. (Id., § 17; Whitbeck v. Patterson, 22 Barb., 85.) It would seem that a motion for a new trial, pursuant to the Revised Statutes, which might be granted by the Supreme Court, was necessarily made at General Term. (Marvin v. Marvin, 3 Abb. Ct. App. Dec., 193 ; S. C., 4 Keyes, 10; Sutton v. Ray, 72 N. Y., 484, 485; Johnson v. Hicks, 1 Lans., 150.) But the present statute, which was made applicable to proceedings of this character, commenced on or after the first ■ day of September, 1880 (Code Civ. Pro., § 3347, sub. 11), provides that a new trial may be granted by the Supreme Court (Id., §§ 2548, 2588), which is represented and acts for such purposes by Special as well as General Terms, and except as otherwise provided, the former is the proper place to make original motions for new trials in this court. This embraces the motion in question, which was properly heard at Special Term.

The evidence, while it by no means is conclusive, was sufficient to go to the jury on the question whether the will was produced by undue influence. The will was made September 5, 1882, and the testator died on the nineteenth of the following November, at the age of fifty-nine years. He had a wife, three married daughters and two sons, one of whom was married. The younger one, Prank, was unmarried. By his will he gave substantially the use of his real estate to his wife; a. legacy of $500 to a grandson if and when he should arrive at the age of twenty-one years, and the residue of his real estate to his two sons, Michael and Prank. His property was mostly realty and valued at from $7,000 to $8,000. On the day the will was made the testator was in his bed and quite ill; by his consent or direction a lawyer was sent for and came to draw his will, and after an interview with him prepared one as the testator had directed. Iiis wife then entered the room and the will was read to her by her request, followed by direction of the husband to do so, and after hearing it she said that was no way to make a will, and complained because no provision was made for the’ son Frank, and said that she “ would allow no one to enter the house to witness such a will as that * * * that if he executed that will she would curse him and dance on his grave, and that she would get a lawyer and law all the property away * * * that he was out of his head * * * and had been so for six months and she could prove it.” This draft of his will made no provision for the son Frank, and he was purposely so left out, for reasons which were given by the testator. It does not clearly appear what the other provisions of it were. The draughtsman says that it contained $500 to the grandson, and he thought a little was provided for the daughters, and that at this interview the wife said the daughters had had enough, and that the grandson (son of one of them) ought not to have anything; that the testator yielded so far as to direct the will drawn as finally made, with which the wife was satisfied, and the evidence tends to prove that the testator expressed approval of the change. This evidence, relating to what was said on the occasion, to some extent was contradicted by that of the widow. And the jury were permitted, upon the evidence, to find that the will was not the result of any undue influence, but came from the more deliberate consideration of the testator, had after the suggestions made by his wife, and that it had the approval of his judgment. The subject of the testamentary disposition of his property was properly one for consultation between the testator and his wife, and upon which she, with no legal impropriety, could advise, and in a reasonable manner endeavor, by the exercise of influence, to move and satisfy his judgment, the accomplishment of which does not come within the meaning of undue influence. That to which the law gives effect to defeat testamentary action and deny probate to a will, is the result of influence amounting to coercion, or such as deprives the testator of the free exercise of his will, and not the influence springing from family relation or from considerations of service, affection of gratitude. (Gardiner v. Gardiner, 34 N. Y., 155; Hazard v. Hefford, 2 Hun, 445.)

In view of tbe feeble bealtb of tbe testator, wbicb may to some extent have impaired tbe vigor of bis mental faculties, we think the evidence presented a question of fact for tbe jury upon tbe issue presented, and was sufficient to support their verdict.

Tbe contestants called two of tbe husbands of the daughters of tbe testator, who gave evidence of conversations bad by them with him, to wbicb objections and exceptions were taken, upon tbe ground that tbe witnesses were interested in the event, and their testimony within inhibition of tbe Code (Code Civ. Pro., § 829), for tbe reason that they might take, as tenants by tbe curtesy on surviving their wives, a life estate in the real property of which they should die seized. Tbe test of interest of a witness is that be will either gain or lose by the operation of tbe judgment, and it must be present and certain, not uncertain, remote or contingent. (1 Greenl. Ev., § 390; Hobart v. Hobart, 62 N. Y., 80-83.) They bad no interest in tbe event of tbe controversy in a legal sense. Their right to take, as survivors of tbe wives, a life estate in the lands of which tbe latter should be seized during coverture (assuming that other requisites exist), is dependent upon their omission to dispose of them by devise or otherwise. This power of disposition makes such right contingent, and as much so as that of one who may be the heir and take, by descent, lands which his ancestor may leave undisposed of at his death. Such fact furnishes no interest to the heir apparent in the event of an action in the lifetime of the latter, respecting his title to lands, because it cannot be said that he has any certain and vested interest. (1 Greenl. Ev., § 390.) Tenancy by the curtesy initiate ceased to be a certain interest in lands thereafter acquired when the statutes permitted the wife to dispose of her estate in them. (Laws of 1848, chap. 200, and 1849, chap. 375.) The rule is otherwise in respect to the inchoate right of dower of the wife of which she cannot be divested by her husband, and her interest is deemed certain as well as vested, and this was the reason which was applied for' the exclusion of her testimony in Steele v. Ward (30 Hun, 555).

The proponents also took exception to the admission of declarations made by the testator' in November following the time of making the will. These declarations had relation to the-terms of the will he had made, and the one he first undertook to make, and in respect to this added, that his wife objected to it and he had to make another. This evidence was clearly incompetent to prove the contents of the will in question or those of that he first had the purpose to make or to show that the one made was caused or produced by duress. The validity of' the will cannot be affected or impeached by his declarations. They were no part of the res gestee and, therefore, were not any or competent evidence of the facts stated by them. (Waterman v. Whitney, 11 N. Y., 157; Marx v. McGlynn, 88 id., 357; Sanford v. Ellithorp, 95 id., 48.)

But the question on trial was whether the will was the result of' undue influence which involved the consideration of the mental condition of the testator at the time he made it. Although he was then of sound disposing mind and memory, his susceptibility to the-influence and1 control of others depended somewhat upon the vigor and character of his mind and will power. He was in feeble health at and from the time the will was made until his death, notwithstanding he improved in that respect and was out some in the-meantime. His declarations were only competent as bearing upon the state and condition of his mind at the time of the testamentary act. The declarations were made about two months afterwards, and were not separated from the act by such length of time, nor were there such intermediate changes of condition as to enable the court to-hold, as matter of law, that it was not competent to prove them, with a view to the inquiry as to his mental vigor and condition at the time the will was executed, as bearing on the question of undue influence.- This was so treated when the case was before the General Term, on review of the surrogate’s decree, and we think that view was correct. (Waterman v. Whitney, 11 N. Y., 157; Cudney v. Cudney, 68 id., 148; Marx v. McGlynn, supra.) It was for the-court, in its instruction to the jury, to guide them in the consideration of this evidence so as to give them an understanding of the limited purpose for which it could, and could not, be considered or applied, and as the charge is not contained in the record it may be-assumed that it was in this respect, as well as in others, satisfactory to the proponents.

Tbe evidence of one of tbe daughters as to wbat she did with her earnings before marriage was received solely to contradict tbe statements of her mother in that respect, and an exception was taken. Tbe order in which tbe evidence appears in tbe record places tbe testimony of tbe mother later in tbe trial than that of tbe witness, and assuming that such was the order in”which it was given, it is not treated as error prejudicial to the proponents, as it does go in contradiction of that given by tbe mother as relates to tbe use by tbe witness of her earnings. We see no occasion upon tbe evidence to disturb tbe verdict of tbe jury, and none of tbe exceptions seem to have been well taken.

Tbe order should be affirmed.

Smith, P. J., and Barrer, J., concurred; Haight, J., not voting-

Order affirmed, with costs to tbe respondent, payable out of the-estate.