text:
    Edward Palmer, Resp’t v. The New York and Lake Champlain Transportation Company, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 13, 1894.)

    1. Vessels—Bight of way.
    By the statutory rule, a vessel overtaking another shall keep out of the way of the latter vessel.

      2. Evidence—Custom.
    A rule of law cannot he qualified or changed by a local custom.
    3. Appeal—Evidence.
    Though the improper evidence was offered by the appellant’s co-defendant, and not by the respondent, the appellant’s objection to its introduction is available against the respondent.
    Appeal from, a judgment and order denying a motion for a new trial.

      Poller & Lillie (J. S. Potter of counsel), for app’lt, the H. Y. & L. C. T. Co.; Smith, Weeds & Conway, for app’lt, L. C. T. Co.; Shedden & Booth (L, L. Shedden of counsel), for resp’t.
   Putnam, J.

On May 19th, 1891, the Hew York & Lake Champlain Transportation Company’s tugboat, Eobert H. Cook, left Whitehall with a tow of canal boats and was shortly followed by the tugboat, B. C. Baker, owned by the Lake Champlain Transportation Company, also with a tow of canal boats, among which was plaintiff’s. The Baker shortly came up with the Cook and gave two blasts of the whistle as a signal that they desired .to pass on the left hand side of the Cook. The Cook answered by a similar signal which signified an answer to the request of the Baker, Thereupon the Cook moved over to the right hand or Vermont side, as near as possible to the shore, continuing at the same rate of speed as before. When the boat reached a place called Maple Point, where the channel turns and is quite narrow, the Baker was 500 feet ahead of the Cook, and the canal boat of plaintiff was opposite and near that tug. In turning Maple Point the hawser of the Cook was drawn with great force against plaintiff’s boat and flew over the boat bow, striking the plaintiff and causing the injury for which this action is brought

Plaintiff brought this action against the two transportation companies and recovered judgment against both for $1,500 and costs. The Hew York & Lake Champlain Transportation Company alone appeals.

It was alleged on the trial and plaintiff claims on this appeal that at the time of the accident the two boats were racing. But on a careful examination of the testimony we do not find that it sustains this position of the respondent. The evidence shows that after the Baker made its signal of a desire to pass the Cook that boat proceeded, at the same rate of speed as before, which is variously estimated at from three to five miles an hour.

Were it not for the testimony which was allowed to be introduced by the court in regard to the local custom on Lake Champlain that when one boat overtakes another, the latter slackens its speed and allows the former to pass, the evidence does not establish a very clear case of negligence against appellant. When signalled by the Baker the Cook passed over to the right hand side of the channel, as near the bank as possible, so as to give room for the Baker to pass, and proceeded on its way at the same rate of speed as before. It is urged with much force that the accident to plaintiff was caused by the Baker and its tow (including plaintiff’s boat), running into the Cook while that tug was lawfully proceeding on its voyage, in violation of the provisions of rule 22, § 4233 U. S. Bev. Statutes, “ that any vessel overtaking any other vessel shall keep out of the way of the last mentioned vessel.” (See 16 A. & E. Ency, of Law, 300-301).

Perhaps, however, without the testimony as to the local'custom above referred to, there was evidence in the case authorizing the submission to the jury of the question of appellant’s negligence at the time of the accident At that time the Baker was 500 feet ahead of the Cook, and, although under the rule above quoted, the Cook had the right of way, yet its captain seeing that a collision with the tow of the Baker was probable, it may have been his duty to stop or back up bis boat. The fact that the Baker had violated the provisions of the statute, did not absolve the captain of the boat Cook from the duty of taking the utmost care and seeing that a collision was likely to occur, as he must have, possibly he should have stopped or slowed up his boat. See 16 A. & E. Ency of Law, 314-315; Cooper v. Eastern Transportation Company, 75 N. Y., 116.

With the testimony as to the local custom above referred to in the case, however, if such custom was controlling, the negligence of the appellant was clearly shown. In that view of the case the accident was caused by the Cook’s failing to follow such custom. Had the tug slowed up when signalled, the Baker and its tow would have passed long before reaching Maple Point.

This evidence, then, in regard to the custom of boatmen navigating Lake Champlain being important in the case, and doubtless having influenced the verdict it becomes necessary to consider the exception of the appellant to the reception of the evidence showing such custom and the charge of the judge in relation thereto.

On the trial the following questions were asked and answers given, the objections of appellant thereto being overruled:

“ Q. What is the custom among men engaged in the transportation business on Lake Champlain, captains of towing boats, with reference to allowing a steamer to advance after she has signalled her intention to pass, what is the custom with reference to slackening speed ? A. The custom is, if we overtake a boat like that where it is crooked and not fit to hang on; if we come into a straight place then we choose the side, and if they answer we usually lay over and let them pass before we get to another bad spot; if the steamer Cook had slackened her speed in the long reach there would Have been sufficient room for the Baker to have passed clear,”

. Of another witness the following question was asked:

“ Q. When you say you understood it to be the duty of the overtaking boat to keep out of the way of the other boat, do you also understand that that duty is qualified by the custom on Lake Champlain that the forward boat shall slacken its speed ? A. Yes, sir.

These questions were properly objected to by the appellants.

The court charged the jury in reference to the custom as follows: “I charge the jury that it" you find there was such a custom existing on Lake Champlain the officers of the Baker had a right to rely on that being observed by the officers of the Cook.” The appellant excepted.

The reception of this evidence, and .the charge above quoted, was in effect a ruling by the court that it was the duty of the appellant to obey the local custom, in fact rendered it unnecessary for the Baker to obey the statutory rule above quoted.

We are unable to agree with the view taken by the learned trial judge. By the statutory rule any vessel overtaking any other vessel shall keep out of the way of the last mentioned vessel. In other words, the Baker overtaking the Cook was bound to keep out of its way. But the custom proved was in direct conflict with sucli rule. By the custom when any tug overtakes another, the latter must get out of the way of the former, must slow up and allow the former to pass. We understand it to be well settled that a rule of law cannot be qualified or changed by a local custom. Wright v. Boller, 42 Hun, 77; 3 St. Rep., 495; West et al. v. Kiersted, 15 W. Dig., 549; Walker v. Trans. Co., 3 Wallace, 150; Homer v. Lord, 10 Mass., 25; The Clement, 2 Curtiss, 363; Case v. Perew, 34 Hun, 130.

The case last above cited is very nearly in point. The action was brought to recover damages sustained by the plaintiff in consequence of defendant’s propeller running into his canal boat in the harbor of Buffalo Creek. To show plaintiff’s contributory negligence defendant offered evidence to show that the persons in charge of plaintiff’s boat did not obey the city ordinance in regard to lights on said boat. Plaintiff was permitted to show a local custom not to light canal boats. The court remarked: “ The omission of other parties to observe this ordinance is no legal excuse for the plaintiff in omitting to comply with its requirements. If the plaintiff had failed to keep the out-port light as required by the ordinance it tended to prove negligence on his part, and the receipt of the evidence objected to was practically a ruling by the court, and the jury must have so understood it, as excusing the plaintiff’s violation of the ordinance, if there was in fact an omission to display the light required by the ordinance.”

So in this case, by reason of the evidence as to the custom and from the charge, the jury must have understood that the local custom was controlling, and that the appellant in failing to obey said custom was negligent.

Had there been no rule established by statute as to the course to be taken by one vessel overtaking another, doubtless the local custom on Lake Champlain could have been properly proven. (The City of Washington, 92 U. S., 31).

But the respondent claims that the evidence in regard to the custom was offered by appellant’s co-defendant, and not by him, and hence appellant’s objection to the introduction of such evidence is not available against the plaintiff on this appeal; and he cites Schneider v. Second Ave. R. R. Co., 39 St. Rep., 375. That case, however, was different from this. The objectionable evidence was in that case not received as against the party objecting. The j ury was charged that such party was not affected by such evidence. The conclusion of the court was, however, that the evidence in question was improperly received, but that under all the circumstances of that case, the plaintiff’s cause of action being established by other satisfactory evidence, that the error of the trial court was not such as to require a reversal of the judgment under the provisions of § 1003, Civil Code.

Here the evidence was received generally in the case as to all the parties, over appellant’s objection. The jury were not instructed that the objectionable evidence was not to be considered as against appellant, as in the case last cited. And the court in his charge, which affected all the parties to the action, instructed the jury that the officers of the Baker had a right to rely on the custom being observed by the officers of the Cook. In other words, that the latter were required to obey the custom. Although the plaintiff did not introduce the evidence as to the custom or request the charge above referred to, the effect of such evidence and charge being in all probability to influence the verdict wé think a new trial should be granted. The plaintiff’s position is like that of a party where a trial judge asks of a witness an improper question, which is objected to, and the objection overruled and an exception taken. If such objection is well taken a new trial will be granted on account of the error of the court, although such error oocurred without any fault on the part of the such party.

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

All concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    Horace C. Young, as Trustee, under the Last Will and Testament of Thomas Cornell, Deceased, Resp’t, v. Sarah B. Overbaugh, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 13, 1894.)

    1. Contracts—Statute op Frauds.
    A verbal contract for the sale'or leasing of land, if partly performed by the party seeking the remedy, may be specifically enforced by courts of equity, notwithstanding.the statute of frauds.
    3. Same.
    The most important acts, which constitute' a sufficient part performance, are actual possession and permanent and valuable improvements.
    3'. Same.
    Where there has been a taking possession under a parol promise to convey, and the making of permanent improvements upon the property upon the faith thereof, the value of the occupation of such premises for a long series of years, cannot be set off against the expenditures made.
    4. Same.
    Taking possession under a parol agreement, with the consent of the owner, accompanied with other acts which cannot be recalled, so as to place the party in the same situation in -which he was before, has always been held to take such agreement out of the statute of frauds.
    Appeal from, a judgment entered upon the decision of the court without a jury.

      Parker & Fiero (J. Newton Fiero, of Counsel) for App’lt; R. G, Poop (A. T„ Clearwater, of Counsel) for Eesp’t.
   Herrick, J.

Thomas Cornell, deceased, was the half brother of the defendant, and prior to the year 1872, was the owner of the premises in question, which are located in Kingston, in this state, but, since the year 1872, the defendant has been in the possession and actual occupation of said premises under the following circumstances :

The defendant and her husband were residents of Catslcill, where her husband was engaged in business, during the year 1869. Thomas Cornell expressed the intention of purchasing a home for the defendant, in Catslcill, but one was not found there that suited them; subsequently, in the year 1872, at the request of the said Thomas Cornell, the defendant and her husband went to reside in the city of Kingston, where the defendant’s husband engaged in some business, and some time in the year 1872, Cornell stating that he desired to carry out the idea that he had suggested to the defendant’s husband when they were in Catslcill; asked the defendant’s husband to build a house for her on the premises described in the complaint, for the sum of $4500, to bring the bills to him, and he would pay the same; he then, and afterwards, said that the house was for the defendant, built for her, and was hers. The defendant’s husband, after such conversation, at defendant’s request, entered into a contract for the building of a house on the premises described in the complaint, and paid the cost of removing a barn on the property.

The cost of building the house exceeded, by about $1200, the sum of $4500, named by Cornell. Cornell knew of the contract, and the fact of this additional expenditure of money was communicated to him, together with the fact that defendant’s husband had paid the same.

The defendant made other valuable permanent improvements, built a barn, planted fruit trees, put in heating apparatus, etc. Cornell visited the premises, at different times, and knew that the defendant was improving the property.

The trial court has found that such improvements, as well as the payment of $1200, were made and expended on the faith of the promise made by Cornell, to give the property to the defendant, and that such expenditures and improvements were made for, and on behalf of, the defendant, and at her request, and under her promise to repay her husband therefor.

In the year 1876, the defendant’s husband informed Cornell that he had found a business that he thought would be a good thing to go into, at Yonkers. Cornell told him that “ if you take your wife and move away from the property where you now reside, it shall not be hers, as I intended it for her when you first built there, and if you now go away you shall lose it; if you remain, I will carry out my design, which was to give it to your wife.”

Thereafter the defendant and her husband reported to Cornell that they had concluded to remain in Kingston.

At various times subsequent to the building of the house, Cornell spoke of the property, to different persons, as the property of the defendant The value of the property is about $8000. The total amount of money expended by the defendants for permanent improvements, ordinary repairs, taxes, insurance, compensation to defendant’s husband for attending to the erection of the house, and the making of repairs, and of other expenses, and the ordinary care and expenditure on property of such a character, from the beginning of the erection of the house down to the present time, is $4734.26. That a fair rental value of the property during the occupancy of the defendant, a period of about twenty years, was $250 a year, aggregating $5000.

That about January, 1890, said Cornell purchased for the defendant, and presented to her, an undivided one-half interest in, and to, certain real estate in the County of Ulster, for which he paid the sum of $11,000. But there is nothing in the case to show, or from which we can infer, that it had any relation to the gift or promise in question.

The executor of the said Cornell commenced an action in ejectment against the defendant, to obtain possession of the property described in the complaint; the defendant denied that the said Cornell, at the time of his decease, was entitled to the premises described in the complaint; and that he was not the actual owner thereof; denied that the plaintiff in the action was the equitable owner or entitled to the possession thereof, and further answering, asserted that she was, in truth and in fact, the equitable owner of said premises, and entitled to the possession thereof, under an agreement with the said Thomas Cornell, which' agreement was set forth in the answer; and the defendant, in addition to the dismissal of the plaintiff’s complaint, asked that he be adjudged and decreed to deliver to the defendant a good and sufficient conveyance to the premises set forth in the complaint.

Upon the trial the facts appeared substantially as herein stated; judgment was rendered against the defendant, awarding to the plaintiff the possession of the premises in question.

The original plaintiff, the executor of Thomas Cornell, died during the pendency of the action, and the present plaintiff was substituted in his place and stead as trustee under the last will and testament of the said Thomas Cornell.

It seems to me that under the facts as stated, the defendant was entitled to the relief asked for in her answer, and that the plaintiff was not entitled to the judgment awarding to him the possession of the premises in question.

The doctrine was settled at an early day in England and has been fully adopted in nearly all the American states, that a verbal contract for the sale or leasing of land, or for a settlement made upon consideration of marriage, if part performed by the party seeking the remedy, may be specifically enforced by courts of equity, notwithstanding the statute of frauds. The ground upon which the remedy in such case rests is that of equitable fraud. It would be a virtual fraud for the defendant, after permitting the acts of part performance to interpose the statute as a bar to the plaintiff’s remedial right. The acts of part performance, therefore, in order to satisfy this principle, must be done in pursuance of the contract, and must alter the relations of the parties. The most important acts which constitute a sufficient part performance are actual possession, permanent and valuable improvements, and these two combined. Section 1409, Pomeroy’s Eq. Juris. : see also Lowry v. Tew, 3 Barb. Ch., 407; Malins v. Brown, 4 N. Y., 404-7; Dygert v. Remerschnider et al., 32 N. Y., 629 ; Freeman v. Freeman, 43 N. Y., 34 ; Pope v. O'Hara, 43 N. Y., 446 ; McFadden v. Alien et al., 134 N. Y., 489 ; 48 St. Rep., 324.

The facts in this case show that there has been an actual possession by the defendant, and permanent and valuable improvements made by her, and that such improvements and occupation were upon the faith of the promise made by Thomas Cornell in his life time.

There is not much contention as to the rule of law applicable to a case where there is a parol agreement for the transfer of land accompanied by possession and the making of permanent improvements upon it, in reliance upon such agreement, but the decision of the court below and the contention of the respondent is, that such rule is not applicable to this case, although such agreement was found and the occupation of, and making permanent and valuable improvements upon the property, upon the faith of such promise or agreement conceded because the ground upon which the court exercises its equitable jurisdiction to compel a party to fulfill a parol contract, really is to prevent a fraud being practiced upon the parol purchaser by the seller, by inducing him to expend his money upon improvements upon the faith of the contract, and then deprive him of the benefit of the expenditure, and secure it to the seller by permitting the latter to avoid the performance of his contract. Freeman v. Freeman, 43 N. Y., 34-8, and in this case it appears that the rental value of the premises for the years that the defendant has been in possession of them more than equals the amount of money that she has expended upon them, and therefore, it is contended that the defendant is not deprived of the benefits of her expenditures, because of the use and occupation of the premises by her, and the value of such use and occupation more than compensates for what she has paid out, hence no fraud is perpetrated upon her by the refusal to fulfill the parol promise made.

I think it has been generally supposed that the longer a person remained in occupation of property, making improvements upon and caring for it as his own, upon the understanding that it was his own, all based upon a promise to convey, the stronger did the equitable title of the occupant become, but if- the doctrine contended for by the respondent in this case is correct, then the longer the occupation the weaker the equity of the-occupant.

The cases to which I have been cited as sustaining the position of the respondent, to my mind fall short of it, the very important element of a gift or promise to convey, which is present in this case is lacking in all of them.

In the case of Wack v. Saurber, 1 Whar. Penn., 387, the court held that there was scarcely sufficient evidences of the contract submitted to the jury; that there was no consideration for it in the first instance; and the court held that if there were permanent improvements made to the land, that the expenditures were trivial in amount, and did not exceed in value the amount of rent for a single year, while the defendant had had the occupation and proceeds thereof for five years; the court also held that there was nothing in the case to justify the inference of a gift in the first instance. Wilton v. Wilton, 70 Ill., 142, was a case where the party claiming the parol contract, had occupied the premises and had the entire proceeds thereof, which largely exceeded the improvements made, and the taxes paid by him, and the court held that upon the facts there was no promise to convey, and none could be inferred from the mere fact of occupancy, payment of taxes and making improvements, where the proceeds and value of such occupation exceeded the expenditures made. The case of Hickman v. Crimes, 1 Marshall Ky., 86, is not in point. Crimes brought an action against the Hickmans, father and son, upon a contract that he had made with the son to erect a building and to have in return therefor a conveyance of certain premises; his claim was that the father had told the son that he would give him a deed to the property in question ; the court held that such promise by the father could not be enforced, there being no consideration given for the promise and nothing done by the son in pursuance of it; that in any event it could not be enforced by the contractor with the son, it was not a promise to the contractor.

In McMahill v. McMahill, 69 Iowa, 115, the court held the evidence to show, that the father had intended to make an advancement to his son of the premises in question, that the son occupied them and had the proceeds thereof for some years, prior to his father’s death, and 'that after his death, he took his distributive share of the estate with the other heirs, and the court held, that if he had accepted no more of the estate than, with the property in question, would have made him the equal of the other heirs, he might have been entitled to a decree directing it to be conveyed to him, but that equity would not wrong the other heirs by decreeing the enforcement of the promise of the father to convey the property as an advancement, to do so would give him, together with the distributive share he had already received, an undue proportion of his father’s estate.

The principle to be extracted from these cases is that, where there is no promise to convey, the occupation of land and the expenditure of money thereon will not be sufficient to create an implied promise to convey and that the value of the use of such promises and the receipts of the proceeds thereof will be set off against any equity created by expenditures made in permanent improvements; but that is very far from holding that where there has been a parol promise to convey, a taking possession under such promise, and the making of permanent improvements upon the property upon the faith thereof, that the value of the occupation of such premises for a long series of years, can be set off against the expenditures made; and a decree for the conveyance denied, because the value of such occupation equals or exceeds the expenditures made; the repayment of the money expended in permanent improvements will not always restore the parties to the situation they were in before the promise was made; we have no evidence that it would do so in this case, other things are to be taken into consideration besides the money expended.

Taking possession under a parol agreement, with the consent of the owner, accompanied with other acts which cannot be recalled, so as to please the party taking possession in the same situation that he was in before, has always been held to take such agreement out of the statute of frauds. Miller v. Ball, 64 N. Y., 286.

It appears that but for the promise to convey to the defendant, she and her husband would have moved to another place, where he would have engaged in business, where he believed there was a good opening for him, but he was tied down to Kingston by the promise made; the current of their lives was changed by the promise to provide a home, whether for the better or the worse we can only guess, there is nothing certain, we only know that they refrained from taking advantage of what was believed to be a favorable opportunity to engage in business elsewhere, because of their faith in the promise of Thomas Cornell.

For twenty years the defendant has been engaged in making and perfecting a home for herself and family; expenditures were made, perhaps trivial in themselves, care and attention, which cannot be recalled, bestowed upon the premises supposed to be her own, and to be occupied as a family home, and after twenty years of such expenditures, care and attention, which one does not ordinarily make or bestow upon the property of others, to force one out of the possession of what has thus been made a home, upon the theory that the rental value of the premises equals or to a moderate extent exceeds the money actually expended, is not in my judgment placing the parties in the same position that they were in twenty years before, and is the perpetration of a fraud.

But it seems to me that there is another view to be taken of the matter, the parol agreement claimed by the defendant and the expenditures made by her upon the faith thereof, have both been found in her favor by the court, and in equity the property belonged to her from the time of the performance on her part of the things that have been done by her. In equity the property was as much hers from that time forth, as if a deed thereof had been executed then, it should have been given then, in equity it was given then. Dygert v. Remerschnider, 32 N. Y., 629-47.

She being then the equitable owner, the rents were equitably hers and cannot be charged up against her. To charge her with the rents as an off set to her expenditures, it seems to me is to beg the whole question, for if she is entitled in equity to a deed of the property, she is also entitled to the rents, or to the occupation thereof in lieu of the rents.

Some weight should be given to the promise to convey ; that is the thing the court is to enforce, it is the foundation of the whole matter coupled with acts upon the faith of it,'it is what gives the court jurisdiction, but, by the rule contended for, no consideration is given to that at all, the party replying upon a promise to convey or a gift by parol is placed in the same category with the person who voluntarily occupies and improves land without any gift, understanding or agreement. I have been cited to, and have found no authority to sustain such a doctrine, and it does not seem to me that it can be sustained upon principle.

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

Putnam, J., concurs; Mayham, P. J., concurs in result.


author: Fursman, J.

text:
    The Central National Bank of Troy, Resp’t, v. The Fort Ann Woolen Company et al., Glens Falls National Bank, Appl’t. The Central National Bank of Troy, Resp’t, v. The Fort Ann Woolen Company et al., Glens Falls National Bank, Appl’t. Stephen W. Barker, Resp’t, v. The Fort Ann Woolen Company et al., Glens Falls National Bank, Appl’t. Stephen W. Barker, Resp’t, v. The Fort Ann Woolen Company et al., Glens Falls National Bank, Appl’t.

      (Supreme Court, General Term, Third Department

      Filed February 13, 1894.)

    1. Attachment—Affidavit.
    An affidavit, in an action by a bank, by its president that he was such president at the time of the transaction, and that the indebtedness of defendant to the bank was a certain sum over and' above all counterclaims and setoffs known to the deponent, is in this respect sufficient to support an attachment.
    2. Same—Fraud.
    The fraudulent disposition of his own property by the president of a manufacturing company does not justify an attachment against the company.
    3. Same—Vacation.
    In order that a subsequent attaching creditor should be successful in vacating a prior attachment, the papers, upon which the later attachment issued, must themselves be sufficient.
    Appeals from orders denying motions to set aside various attachments granted in each of the above entitled actions.

      King & Ashley (Edgar T. Braclcett .of Counsel) for appl’t; Warren, Patterson & Faulkner and J. S. Wheeler (Charles F. Patterson of counsel) for resp’t
   Order affirmed on opinion of the Court below, with costs and disbursements in each case.

All concur.

The opinion of Mr. Justice Fursman in the court below, is as follows:

Fursman, J.

This motion is made solely upon the papers on which the plaintiff’s attachment was originally granted, and various objections are urged to the sufficiency of such papers. The first is that the affidavit of Mr. Warren (President of the plaintiff) does not state the indebtedness of defendants to the bank to be over and above all counter-claims known to the plaintiff, as required by Section 636 of the Code of Civil Procedure.

The affidavit of Mr. Warren set forth that “ he is the president of the plaintiff,” that a cause of action exists in favor of the plaintiff against the defendants, describing it, and that “ the amount of the plaintiff’s claim is $6,000 * * * over and above all counter-claims and set-offs known to deponent.” The case of The Manufacturers' Nat. Bank v. Hall, 60 Hun, 466; 39 St. Rep. 463; is relied on in support of the contention that the affidavit is insufficient in. the particular suggested. In that case the affidavit was made by the president of a manufacturing corporation, and stated the indebtedness to exist “over and above all counterclaims known to deponent, or to the plaintiff,” but did not state that the affiant was president at the time of the transaction. Van Brunt, P. J., makes a distinction between the officers of trading and banking corporations, and holds that the chief officers of a bank may be presumed to be acquainted with its financial affairs, while in the case of a trading corporation, no such presumption exists. The remaining judges hold the affidavit insufficient, because it did not state that the affiant was president at the time of the transaction, but only that he “is president,” i. e., at the time of making the affidavit. The affidavit of Mr. Warren is like it in this respect, but a careful examination of the entire affidavit satisfies me that it sufficiently indicates that Mr. Warren was president at the time of the transaction, and is familiar with the financial affairs of the bank. He states that he is president; that he has known defendant Barnett, president of the Woolen Co., for years; that Barnett had been a customer of the plaintiff for several years ; that some two or three years ago desiring to extend his line of credit, and that of the woolen company, with the plaintiff, Barnett made to him (deponent) and to plaintiff’s cashier, the statements and representations set forth; that such statements were made to him and to the cashier from time to time, down to within three months of making the affidavit; that the defendants from time to time obtained loans from plaintiff, “because of the representations made as aforesaid”; and that such loans would not have been made, but for the reliance of the plaintiff thereon. There is enough here to justify the conclusion that the affiant was president of the bank at the time of the transaction, and that he has full knowledge of the entire indebtedness of the defendant to the plaintiff. A corporation, as such, cannot have knowledge. The knowledge of its officers must be attributed to it, and when, therefore, the president of a bank declares that he is its president, that for the purpose of inducing credit certain representations were made to him, that relying upon such representations the bank made loans which remain unpaid, and that the debt thus created is due the bank over and above all counter-claims known to him, it is sufficient. I am strengthened in this view by the case of Bliss Co. v. Opera Glass Co., 60 Hun, 438; 39 St. Rep. 332 ; and the cases there cited. Essex Co. Nat. Bank v. Johnson, 16 N. Y. Supp. 71; 40 St. Rep. 919; is also in poffit.

It is also insisted that the affidavit does not charge that the defendant, The Fort Ann Woolen Company, has been guilty of any fraudulent disposition of property, and that the allegations touching the fraudulent disposition of property by defendant Barnett are insufficient to sustain the warrant. As to the latter, the affidavit states in substance that Barnett’s wife held a mortgage of about $14,000 upon his real estate, which at her death she bequeathed to him, and that recently, intending thereby to place this mortgage beyond the reach of his creditors, and to make it appear to be a valid lien in their favor upon his real estate, he had transferred the same to the children of one' Yolney Dean Richmond, without consideration, upon the pretense that as to it there was a trust in their favor created by their grandfather’s will (Mrs. Barnett having received it from him), although he well knew that such alleged trust had been declared void by the judgment and decree of this Court. I think this is a sufficient statement of an attempted fraudulent disposition of property by Barnett. It is urged that such transfer must have been made by him as Executor (for such he was) of his wife’s will, but it is sufficient to say that so far as is disclosed the transfer was made by him individually. Moreover, if it was made by him as Executor, it was still an attempt on his part to place property in which he had a beneficial interest beyond the reach of bis creditors.

But as to the Woolen Company, the affidavit is clearly insufficient. It nowhere charges any fraudulent act of the company, and the fraudulent acts of Barnett in disposing of his individual property, cannot be attributed to it. They are separate and distinct entities, possessing separate and distinct rights, powers, and privileges. They are each citizens owning property severally, and subject to separate liabilities. The corporation exists as an individual body distinct from all others, and must continue thus to exist until dissolved by judicial decree. It is of no importance whether Barnett does or does not own practically the whole of the capital stock of the company. The situation is not thereby changed. They each have an independent existence notwithstanding. If Barnett has attempted to fraudulently dispose of his1 property, there is no evidence that the company has made any such attempt as to its property, and the act of Barnett does not justify an attachment against the company. Bogart v. Dart, 25 Hun, 395; Edick v. Green, 38 Hun, 202-209.

If, therefore, this motion was made by the woolen company, or by a judgment creditor of that company, I do not think it could be resisted. But it is made by a subsequent attaching creditor, and to be successful it must appear that the papers upon which the subsequent attachment issued were themselves sufficient. Hodgman v. Nat. Broadway Bank, 60 Hun, 156; 38 St. Rep., 578.

The affidavits upon which the attachment in favor of- the moving party herein was issued, are as barren of any allegation of a fraudulent, or attempted fraudulent disposition of property by the Woolen Company, as are those of the plaintiff, unless the affidavit of Edward Wall aids them in this particular. This was frankly conceded by counsel on the argument. That affidavit is clearly insufficient for the purpose of charging the Woolen Company with any fraudulent act. The only part of the affidavit pertinent to this question is the statement that on the morning of June 3, 1893, he saw a load of wool drawn to and unloaded at the railroad station at Fort Ann; that one Sweet, an employe of a certain wool dealer at Troy, was in charge of this wool; that it was shipped by express instead of by freight, and that Sweet told him (Wall) that it came from the factory of the Woolen Company. The affidavit also states that the business of the company is the manufacture of wool into cloth, and that it does not deal in or vend manufactured wool. Assuming the truth to be that this wool came from the company’s factory and was being shipped away, there is nothing in that fact inconsistent with an entire honesty of purpose on the part of the Woolen Company. There is nothing to show that this is an unusual occurrence, and it may well be that this particular wool was being returned to the seller as not being of the quality ordered, or that the seller finding the company to be in failing circumstances, retook the wool before the company had acquired actual possession of it. A fraudulent or dishonest purpose in such a case, is not to be presumed. There must be some evidence from which it can be justly inferred. I do not think this affidavit contains such evidence; °but there is a fatal objection to the sufficiency of this affidavit in this respect. The statement of Sweet to the witness that the wool came from the factory of the company is the clearest hearsay. Neither of them were at the time in any way connected with the Woolen Company, or engaged in its business. It was the mere statement of a third party to one in no wise interested in knowing the facts. No one is, or ought to be, bound by the words of a stranger. It is not a part of any res gestee because it does not appear that anything was being done at that time by the Woolen Company, or in its name, or on .its behalf. The most that can be said for it is that Wall heard, from one not authorized to speak, that the wool came from the company’s factory. This is not evidence. Moreover, the affidavit of Sweet is not produced, nor any reason given for its non-production. Farley v. Shoemaker, 17 St. Rep., 205; Steuben Co. Bank v. Alberger. 78 N. Y., 252.

This affidavit being insufficient, the papers on which the attachment of the Glens Falls Bank issued are no better or stronger in respect to the Woolen Company than are those upon which the plaintiff’s attachment was granted. The motion is, therefore, denied, with costs.


text:
    Hiram Washburn, Jr., as Receiver of the Property of Peter Kalteux and John La Grange, Resp’t, v. Andrew Dettinger, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed Febuary 13, 1894.)

      Í. Contract—Building.
    The owner, by serving notice that he will complete the building upon the contract or in accordance with the provisions therefor in the contract, does not assume the responsibility for bad or defective work performed by the contractor prior to the time he ceased work upon the building.
    2. Same.
    The service of such notice does not terminate the contract.
    3. Same.
    The owner, in such case, is not liable for the collapse of the building occurring, while completing it, through the defective work of the contractor, which could not have been readily discovered by him.
    4. Same.
    To enable the contractor, or his receiver, to recover for the work done by him, he must establish that such work was done in a good and workmanlike manner.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff.

      W. FrotMngham, for app’lt; (G. J. Buchanan, of counsel,) L. Hotaling, (F. Countryman, of counsel,) for resp’t.
   Herrick, J.

The plaintiff as receiver of the property and effects of Kalteux and LaGrange, brings this action against the defendant upon a contract made by the said Kalteux and LaGrange in November 1875, for the construction and erection by them of an ice-house for the defendant. The contract price thereof was $6,000. Kalteux and LaGrange proceeded to erect said ice-house ■and received $4,000 thereon.

On or about the 21st of February 1876, it was mutually agreed by parol, that further work upon said ice-house, should be suspended until the opening of navigation on the Hudson River in the Spring.

The referee to whom the case was referred finds that at the time of such suspension of work, there remained of work and material to be done and furnished, the following:

“About twenty-three cords of saw-dust, materials for constructing six windows; materials for inside doors, materials to replace tie beams, materials for repinniiig; the necessary labor of filling in saw-dust; completing French windows, making inside doors, scarfing and, pinning the beams, repinning building, hanging and trimming outside doors.”

That prior to the suspension of such work, the defendant had partially filled said ice-house with ice, and subsequently placed more therein, and that at the time of the falling of the house as hereinafter stated, it was more than half filled with ice. Sometime in the early part of April the defendant served notice upon Kalteux and LaGrange that they must complete said ice-house or in default thereof, that after the expiration of three days from the time of said service, he, the defendant would complete said ice-house, and deduct the amount of the expense of so doing from the amount unpaid of the contract price for the erection thereof.

That a few days afterwards, the referee finds more than three, but how many does not appear; but on the 16th day of April said ice-house fell. The referee has found that it would have cost $300 to do the work and furnish the materials left undone and unfinished, as hereinbefore specified.

He reported in favor of the plaintiff in the sum of $1700, with interest thereon, amounting in all to $3481.87 for which amount judgment was entered against the defendant.

The defendant appeals from the judgment and brings up for review many exceptions to the findings and refusals to find of the referee, both upon questions of fact and law.

After a careful review of the evidence in this case, I cannot resist coming to the conclusion that the building was improperly constructed, and that it fell in consequence of defective construction, although the referee has found “ that it does not appear what caused the ice-house to fall.”

I think the learned referee erred in refusing to find as requested by the defendant that said building was not constructed in a good and workmanlike manner, and was not at the time of the commencement of this action substantially completed.”

It appears in the evidence that the building was not properly pinned together.

That the wooden pins used were not of the kind of wood proper to be used for such purposes, being brittle and easily broken; that in a number of instances where such pins were attempted to be driven in, they broke off, and other pins were not put in their places; that one of the tie beams was not properly fastened, so that for some days before the building fell, it became drawn apart from its fastening ; and there were other minor defects as the result of which the building was not solid, but vibrated in the wind.

The only architect, a man of high standing in his profession, called as a witness, testified that the workmanship was bad. The effect of this is sought to be avoided, however, upon the ground that the defendant having served notice upon the contractors that if they did not complete said building, that he, the defendant, would, at the expiration of three days, go on and complete it himself ; and the contractors not complying with said notice, that the defendant thereafter became responsible for the building, and that it was his business to complete it, and in a good and workmanlike manner; and that if he did not do so before the building fell, the loss was his, and the only relief that he is entitled to is to deduct the amount of money that it would have been necessary to expend to complete the building in a good and workmanlike manner, according to the terms of the contract from the contractor’s price.

There is evidence tending to show that after the service of the notice one of the contractors informed the defendant that he would go on with the completion of the building as soon as he could obtain the sawdust, and subsequently notified him that he'could not procure it; but that if he, the defendant, could get it elsewhere, that he would send a force of men to put it in. If this story is true, and the preponderance of evidence seems to be that it is, although the referee has found to the contrary, then the contractors still remained in charge of finishing the construction of the building, and the defendant did not assume the responsibility of it. Furthermore, not only had the contractors omitted the doing of some things that were necessary to be done to complete their contract, but it appears, as already stated, that some of the work that they had done was defectively done, so that if it is to be assumed that the defendant, in serving notice that he would go on and complete the building himself, thereby assumed the responsibility of doing the work that under the contract remained to be done to complete it, he did not assume the responsibility for bad or defective work performed by the contractors prior to the time they ceased work upon the building.

Serving notice upon the contractor by the owner, in accordance with the provisions therefor in the contract, and even proceeding pursuant to such notice to go on and do the work, does not terminate the contract. Murphy v. Buckman, 66 N. Y., 296; Taylor v. Mayor, etc., 83 N. Y., 625; Crouch v. Gutmann, 134 N. Y., 45; 45 St. Rep., 470.

The contract being still in existence, and the contractors not being released from its terms and conditions, they are responsible for any defective work done in performing it; to hold to the contrary would be to sustain the proposition that where there is a provision in the contract providing that in case of delay to complete, that the owner may go on and do so; that the contractor, by abandoning his contract and thus compelling the owner to complete it, may escape liability for defective work done by him, and throw it upon the owner; I do not think that this proposition can be successfully maintained.

¡Neither, in a case like this, can the owner be made whole by deducting from the contract price the amount of money that it would have cost to have made a perfect job; the expense of properly securing tie beiams, of putting in good pins, of taking out defective ones and replacing them by perfect ones, is trivial compared with the injury resulting from the work having been neglected or improperly done.

The expense of doing that which was left undone and of doing over again, properly, that which was defectively done, is unimportant compared with the loss occasioned by such work not having been done, or properly done, in the first instance.

¡Neither does it appear in this case that the work that was neglected to be done, or thatwhich was defectively done, was such as could have readily been discovered by the owner; and the lapse of time between the giving of the notice that he would complete the work himself, and the falling of the building, does not appear of sufficient length to hold the owner responsible for not having discovered these defects in the building and to have remedied them in time to prevent any evil results.

To enable the contractors, or the plaintiff standing in their place, to recover for the work that was done by them, it was necessary for them to establish that such work as was done by them was done in a good and workmanlike manner, and that, I think the evidence shows, there has been a failure to establish, and for the error of the referee in refusing to so find, the judgment should be reversed, the referee discharged, and a new trial granted, with costs to abide the event.

All concur.


author: Putnam J.

text:
    George Mark et al., Resp’ts, v. The Village of West Troy, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 13, 1894.)

    1. Municipal Corporation—Dedication.
    Making a survey and map of a village by the owners of land, laying out lots and streets thereon, filing such map with the county clerk, and selling lots with reference thereto, if followed by a public use of said streets or other acceptance thereof, constitute a dedication.
    2. Same.
    If the owner’s acts and declarations are equivocal, or do not clearly and plainly indicate the intention to abandon, permanently, the property to the use of the public, they are insufficient to establish a case of dedication.
    3. Same.
    A dedication, before acceptance by the public, may be revoked or modified.
    4. Same.
    Ordinarily, a dedication of a highway to the river, gives the public a right of access thereto ; and, if the bank is extended by accretion or otherwise, the highway is likewise extended.
    Appeal from a judgment enjoining defendant from removing or interfering with the fences or buildings or ferry property of the plaintiffs.

      Eugene MdLean (_E Countryman of counsel) for app’lt; Smith & Parmenter (A. A. Parmenter of counsel) for resp’ts.
   Putnam J.

We think that the legal propositions asserted by the learned counsel for the appellant, are generally correct.

The making a survey and map of the village West Troy by the former owners of the land laying out lots and streets thereon, filing said map with the county clerk, and selling lots with reference thereto, if followed by a public use of said streets, or other acceptance thereof, constituted a dedication, and it is true that a dedication once made and accepted cannot be revoked. Also, generally where a street thus dedicated extends to the shore of a river, and such shore is shifted by natural accretion or otherwise the street will be extended over such accretion to the new shore.

If then the evidence shows that there was an absolute unqualified dedication of Canal Street to the river shore, and an acceptance of such dedication by the public or the village of West Troy, we are not prepared to say that plaintiffs or their grantors, by filling in the river east of Canal Street would deprive the public of access to the shore, unless other facts appear in the case which had the effect of limiting the dedication.

It is always a question of fact whether or not a public highway has been created by dedication. Flack & Ors. v. Village of Green Island, 122 N. Y., 107; 33 St. Rep., 339.

And to effect dedication the intent of the owners of the land must clearly appear. The owners’ acts and declarations should be unqualified and decisive, manifesting a positive and unmistakable intent to permanently abandon his property to the specific public use. If they be equivocal or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public they are insufficient to establish a case of dedication. Holdane v. Trustees of Village of Cold Springs, 21 N. Y., 474-477; State v. Green, 41 Ia. 693 ; City of Columbus v. Dahn, 36 Ind. 330; Niagara Falls Suspension Bridge Co. v. Bachman, 66 N. Y., 261.

And a dedication before acceptance by the public may be revoked or modified. Holdane v. Trustees of Village of Cold Springs, (supra); Lee v. Village of Sandy Hill, 40 N. Y., 442, 443; City of Cohoes v. D. & H. C. Co., 134 N. Y., 397, 402; 47 St. Rep., 621.

A dedication of a highway is in effect a gift of a right of way over land to the public which only becomes operative by acceptance. Until accepted, the donor may change his mind at any time and withdraw his offer. , When accepted, the title of the . public to the highway becomes absolute.

The real questions in this case are of fact, and are, whether the dedication under consideration made by filing the map in 1828, which described Canal Street as extending to the river, had the effect of extending said street over the other land of the dedicators under waters east of the river shore. Whether such dedication was limited by the reservation contained in the partition deed of 1829, and hence subject to the rights of the owners to the ferry , landing at the foot of Canal street, then being used as such. If the effect of filing the map was to give to the public a right to use Canal street to the river and over the water lots of the owners, whether the fact that the latter at once and before any acceptance pf Canal street by public user took possession of and have ever since occupied the premises in question effected a revocation or modification of said dedication.

On March 7, 1828, George Tibbits and others, as trustees for certain cestui que trusts, being the owners of the lands embracing the premises in question and a portion of the village of West Troy, laid out the same into lots and streets and made and filed a map thereof. Iu said map Canal street is described as extending to the river. The defendant claims that the making and filing of the map and the subsequent use of Canal street by the public effected a dedication thereof to the river. .

The trustees at the time of filing said map were the owners by grant from the state of lands in the river under water east of and adjoining the foot of Canal street. After the making of said map, and on October 12, 1829, all the parties interested in said premises mutually executed a partition deed of said farm duly dividing said property according to their respective rights. Each grant in said partition deed had the following clause: “Excepting and reserving out of this release all right of ferrying or establishing or maintaining a ferry or ferries across the river Hudson, it being understood and expressly agreed by and between the said parties that the right of said ferriage is to remain vested in them, the said Philip Schuyler, Greorge Tibbits, Richard P. Hart and Nathan Warren, as such trustees as aforesaid until further partition is made by said proprietors of West Troy of the residue of trust estate.”

The trustees also retained the title of lot number 40 which adjoined the foot of Canal street. The title was so retained for the purpose of maintaining a ferry. At that time the Troy and West Troy ferry boats landed at the foot of Canal street. The said trustees on September 16, 1835, conveyed to John P. Cushman and Ebenezer Wiswall said lot number 40, “and also all the exclusive right and privilege of keeping and maintaining a ferry and ferries across the river Hudson from any and every part of said village of West Troy, and the right and privilege of approach to said ferries as now used and vested in the said trustees in trust as aforesaid for the said parties of the first part, their heirs or assigns, and also all the said exclusive right and privilege of keeping and maintaining a ferry or ferries across the said river which have been reserved to said trustees.”

Thereupon said Cushman and Wiswall became the owners of said “ ferry then being operated and maintained and the property belonging and appertaining to said ferry, the landing of which was then at the foot of said Canal street, as it then existed, and the exclusive right of ferriage not only at that particular landing, but also the exclusive right of ferriage all along the said shore of said Hudson river fronting on said village of West Troy. The said grantees and their successors filled in with earth to the depth of several feet from the then foot of Canal street and of lot number 40, easterly to where said ferry landing now is, at their own costs and expense. The ownership of said ferry landing and the lands pertaining to it changed from time to time by reason of sales and conveyances and transfers of undivided parts thereof, but at all times the said ferry was being maintained and the possession thereof and of the property pertaining thereto held by the owners thereof.”

It appears, therefore, that from a time prior to the filing of said map the owners of said land, conducted a ferry business from Troy to West Troy, landing the boats at the foot of Canal street. The right to conduct said business was reserved to the trustees in the deed of 1829, and conveyed by them to Cushman and Wis-wall by the deed of 1835.

The learned trial judge, made among others, the following findings: “ In transforming the Bleecker farm into village and farm lots and streets, and causing them to be placed upon the Roberts map, the then owners thereof, did not intend to dedicate to the public said Canal street, now known as Sixteenth street, any further east than as indicated on said map. Nor did they intend by such dedication as was made, to interfere with or encroach upon the publie ferry then existing, and which at that time had its landing within the side lines of said street produced easterly.

It was the intent of the owners of said Bleecker farm when they decided to lay out said farm into village and farm lots separated by streets and partitioning the lots among the several owners by the deed which expressly reserved said lot number 40, on the corner of Broad and Canal streets, and the land under the water extending into the Hudson river, to except out of such dedication the then existing ferry and the exclusive right of occupying and maintaining a ferry or ferries, subject to the sovereign power of the state at the place where the ferry' and the landing thereof then existed.”

After a careful consideration of the evidence we think the conclusions of the trial judge were correct.

As already stated, ordinarily a dedication of a highway to the river gives the public a right of access thereto, and if the bank is extended by accretion or otherwise the highway is likewise extended. But we doubt whether this doctrine applies in a case like this where the owners only dedicated to the river or water’s edge, while owning land under water east of and beyond the portion so dedicated and which was afterwards filled in with earth. We doubt whether the street could be extended over and under water which was not laid down on the map as a part of the said street. But we do not deem it necessary to discuss this view of the case.

The question to be considered is as to the intent of the owners of the land at the time in question to be gathered from the filing of said map and the deeds aforesaid, and the facts and circumstances of the case. The map filed in 1828 and the partition deed • of 1829 should be deemed one transaction. It does not appear that between 1828 and 1829, there had been any acceptance of Canal street by public user or otherwise, and hence the owners of the land in 1829 could modify or revoke any dedication made by filing the map of 1828.

When the map was filed a ferry ’business was being conducted with a landing at the foot of Canal street. In the partition deed the right to conduct said ferriage business was reserved to the trustees and they afterwards deeded it to Cushman and Wiswall, conveying to the latter the exclusive right of ferriage and the right and privilege of approach to said ferries. After Cushman and. Wiswall became the owners of said privilege they filled in the river two hundred feet from the foot of Canal street and they and their successors have ever since been in possession thereof.

We think that the evidence discloses an intent on the part of the owners of the land in making the dedication to reserve the foot of Canal street for the use of the ferry. The reservation of the right to maintain a ferry should be deemed to mean a reservation of whatever appertaining to the land was necessary to conduct the ferriage business properly — a dock, a place to erect a toll-house, with proper fences and means of access to the ferry. When, in connection with the reservation in the deed of 1829, we take into consideration the fact that then and ever since that period the said owners of the land or their grantees have remained in possession of the locus in quo / that after the deed to Cushman, and Wiswall, the latter or their grantees commenced the filling in of the river with earth at the foot of Canal street and have erected on the land so filled in fences and buildings, and have continued to occupy the same; the intent of the dedicators to reserve the premises in question for the use of the ferry business seems apparent.

We think, therefore, that in the offer of Canal street by the owners of the land in question to the public it was their intent to reserve that portion required for the use of the ferry. Such part was never dedicated but was retained by the owners of the land and their grantees. It is a fair presumption that the right to maintain a ferry means at the place where the ferry was when the map of 1828 was filed and the deeds were executed; also, means the right to control the landing where the ferry boats landed and to erect there suitable docks and buildings for carrying on the business. Such rights were inconsistent with the dedication. The intent of the givers of the land was not to include the shore of the river as far as the same was required for the use of the ferry.

If, however, the dedication as originally made in 1828-9 was not so limited, the subsequent acts of the owners of the land must be deemed a revocation of the dedication as to that part of the foot of Canal street required for the use of the ferry. The village of West Troy was not incorporated until 1836. In 1835 when the deed to Cushman and Wiswell was executed the evidence does not show that the dedication had been accepted. It does not disclose the fact that there has been any public use of Canal street. Hence the dedicators or their grantees, could modify or revoke "said dedication. Lee v. Village of Sandy Hill, 40 N. Y. 442. The trustees conveyed the exclusive right to maintain said ferry and the approach thereto, and it appears that Cushman and Wiswall and their grantees took possession of said ferry, continued the business, and filled in the river at the foot of Canal street with earth several feet in depth, erecting on said filling the structures necessary to carry on their business, and have remained in possession ever since such conveyance, a period of almost sixty years. Hence, if the filing of the map in 1828 by the owners of the land and the transaction of 1828-9 should be deemed an act which, if followed by a public user of the street, would have given the public a right to a street extending to the river, yet as it is not made to appear that there was any public user of the street prior to 1835 when the conveyance was made to Cushman and Wiswall, and as it appears that the latter and their grantees entered into possession of the loqus in quo and have ever since remained in possession, it must be held that there was a revocation or modification of the dedication. But in fact the evidence shows a possession by plaintiffs and their grantors of the premises in question since prior to 1828. We are of opinion that the fact that plaintiffs or their grantors ever since a period prior to the alleged dedication have remained in the quiet and peaceable possession of the premises in question and the fact that such premises-have never been in the occupation of defendant shows the absence of an intent on the part of the proprietors of the land ever to dedicate the lot described in the complaint.

It is suggested by the learned counsel for the respondent that it does not appear that the grantors who reserved the right of ferriage had ever acquired such a right from the sovereign power of the State which is the only- source for its exercise. We do not deem it important in this case to consider whether the said grantors were conducting the ferriage business under authority conferred on them by the State or not. Or whether it should be presumed that they were legally conducting said business or otherwise. They were in fact carrying on the ferriage business. The question for our consideration in this case is as to their intent in making the dedication in question under the circumstances appearing in the case. Whether they carried on the ferry business with or without the authority of the State is not important on the question of their intent.

We think that the trial judge disposed of the case correctly, and that the judgment should be affirmed with costs.

Mayham, P. J., concurs; Herrick, J., not acting.


author: Per Curiam.

text:
    Edmund F. Bennett, Resp’t. v. James I. Thompson et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed Feb’y 13, 1894.)

    Trial—Substitution of Parties.
    Notice of a motion to substitute the assignee in the pláce of the dedeceased assignor need not be given to the latter’s personal representatives, in the absence of a denial of the assignment.
    Appeal from an order granting a motion for the substitution of parties.

      King & Specie (Henry J. Speck of counsel), for app’It; George P. Dorman, for resp’t.
   Per Curiam.

We think the court below had power to grant the motion. His authority to. do so seems unquestionable since the decision of the court of appeals in Schell v. Devlin et al., 82 N. Y., 333. In that case the motion was not granted, as counsel for appellants suggests, under the provisions of section 1298 of the Civil Code, no appeal having been taken, and the authority seems directly in point.

It is difficult to see what interest the personal representatives of the deceased plaintiff had in the motion. The assignment by plaintiff previous to his death to the moving party was clearly proven and was not denied by appellant. In the absence of a denial of the assignment there was no necessity of giving any notice to the personal representatives of the deceased plaintiff. As Judge Andrews remarks in Schell v. Devlin et al., (supra): “The interests of the appellants in the question is that the person sub. stituted should be the real owner of the claim, or if not, that the real claimant shall be concluded by the order.”

The court below, in his discretion, overruled the objection of defendants to the motion on account of laches, and we see no reason to overrule his ruling in that regard. The plaintiff died a few days after the assignment, and defendants did not satisfactorily show any injury to them resulting from the delay.

The order should be affirmed with costs and disbursements.

All concur.


author: Putnam, J.

text:
    Henry W. Sage et al., Resp’ts., v. Shepard & Morse Lumber Company, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed Feb’y, 13, 1894.)

    Reference—Compulsory.
    Where, under tlie pleadings, the plaintiff will be compelled to establish the delivery and price or value of over four hundred items, a reference should be directed in the absence of difficult questions of law.
    Appeal from order directing a reference.

      Hah & BuVceley (Alpheus T. Bulkeley of counsel), for app’lt; Tracey & Cooper (James Fenimore Cooper of counsel), for resp’ts.
   Putnam, J.

In this case we deem an opinion unnecessary. Under the pleadings plaintiffs on the trial will be compelled to show the delivery of the various items of lumber for which the action is brought. It is not denied that the account set out in the first cause of action in the complaint consists of 147 items, and in the second 295 items. Plaintiffs on the trial must establish, before resting, each of the items, showing the delivery of the lumber and the price at which the same was sold or the value thereof.

It will not be practicable under the pleadings to try the question of the power of Abbott and of defendant’s knowledge of the limitations of that power separately. The question as to whether defendant had notice as to the power of Abbott, plaintiff’s salesman, is not, properly, an issue in the action. The evidence given in that regard will bear on the real issue, the price at which the lumber was sold or whether any price was agreed upon.

We do not think that difficult questions of law are involved in the case. The questions to.be tried are of fact.

As to the second cause of action in the complaint, plaintiffs having waived the tort, it is to be deemed a cause of action on contract and referable.

Had defendant, in the answer, admitted the delivery to it of the several items of lumber set out in the complaint averring that it purchased said lumber at a specified price, which had been paid, it may be that a reference should not have been directed. As it is, plaintiffs, as a part of their case must show, before resting, the delivery of over four hundred items of lumber and the price or value thereof.

We think the order should be affirmed with costs,

Mayham, P. J., concurs, Herrick, J., not acting.


text:
    Elizabeth Winegard, Resp’t, v. Benjamin Fanning, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 13, 1894.)

    1. Contract—Validity.
    An unlawful agreement between principal and agent to foreclose the former’s mortgage in the latter’s name, does not deprive the principal of his title thereto, or of the proceeds thereof, in the hands of such agent.
    2. Same—Former Adjudication.
    The foreclosure judgment, in such case, will not conclude the principal, as between him and such agent, on the question of the actual ownership of the said mortgage or proceeds.
    3. Witness—Impeachment.
    A party who cross-examines a witness as to 'a collateral matter, is concluded by his answer.
    Appeal from, a judgment in favor of the plaintiff.

      L. W. Baxter, for app’lt; John B. Holmes, for resp’t.
   Putnam, J.

On December 27,1882, one John W. Yroman and his wife, executed and delivered to defendant, a mortgage on certain lands in Schoharie County, to secure the bond of the former, conditioned to pay $3,500, and interest as therein specified. On or about March 31, 1883, by an assignment absolute on its face, and citing a consideration of $3,500, defendant transferred said bond and mortgage to plaintiff. The assignment was not recorded. On the tenth day of April, 1886, defendant commenced an action to foreclose said mortgage in his own name, and afterwards obtained judgment therein, under which the mortgaged premises were sold on March 5,1887, and bid in by him for $4,183.54, he acknowledging said bid to be a satisfaction of the mortgage debt and costs. Defendant, prior to the commencement of this action, conveyed the mortgaged premises so bid in by him.

Plaintiff claiming that under the assignment above mentioned, in consideration of the payment of $3,500, she became and remained the absolute owner of said bond and mortgage, and that she delivered said bond and mortgage to defendant to foreclose for her benefit, brought this action to recover the sum of $4183.54 so realized by the defendant on said bond and mortgage, by the sale of the mortgaged premises. Defendant contended that the assignment was made as collateral security for a loan of $1,500, and that prior to the foreclosure of said mortgage be had fully paid the amount of said loan, and that when he commenced the foreclosure plaintiff had no interest in said security.

On this question, in the language of the trial judge, there was “ a rugged dispute between the parties.” The jury have found in favor of the plaintiff, it is clearly one of those cases where the conflicting evidence given on the trial was properly submitted to the jury, and where the verdict cannot be disturbed'by us. No objection was made on the trial to the submission to the jury of the evidence as to the ownership of the bond and mortgage. Nor do we understand that the learned counsel for the appellant seriously insists that we could properly, on this appeal, interfere with the verdict of the jury as to such ownership. In our consideration of the case, we shall therefore assume that plaintiff being the owner of said bond and mortgage, delivered the same to defendant to foreclose and collect for her benefit.

The appellant urges that the alleged agreement between Mrs. Winegard and himself, to foreclose the mortgage of which she was the owner, in his own name, was illegal and void, and made in violation of the provisions of § 449, Code of Civil Procedure, which provides that “ every action must be prosecuted in the name of the real party in interestthat said agreement was contrary to the provisions of a positive statute, and that the foreclosure was an illegal proceeding in execution of an illegal agreement; that no remedy can be had in a court of justice on an illegal contract where both parties are in pari delicto; that hence no recovery can be had in this action.

From the evidence it is not clear that defendant foreclosed the mortgage in his own name by direction of plaintiff. She and her husband gave testimony which, if believed by the jury, authorized a finding that appellant brought the foreclosure action in his own name, of his own volition, and without the knowledge or consent of plaintiff.

Assuming, however, that an agreement was made between the plaintiff, Mrs. Winegard, and Mr. Fanning, she being the owner of the bond and mortgage, that he should foreclose the same in his own name for her benefit, does this illegal agreement deprive her of the bond and mortgage, and, in effect, transfer the same to Mr. Fanning, as claimed by him? We are unable to find any authority among those cited by appellant to sustain such a claim. We are of opinion that the principle invoked by defendant does not apply to this case. Here plaintiff was the conceded owner of a bond and mortgage. She became such owner by an assignment long prior to the alleged illegal agreement. Being such owner she delivered the same to her agent to collect or foreclose, at the same time making an agreement with him that the foreclosure should be conducted in his name, in violation of the provisions of the statute. This illegal agreement as to the foreclosure, has been executed. Had it not been, doubtless, it could not be enforced. If any claim were made by either party, arising directly out of the unlawful contract, it could not be sustained. But we can find no authority upholding the doctrine urged by appellant, that such an unlawful agreement, as to the manner of foreclosing the mortgage made by her with her agent or trustee, deprived plaintiff of her title thereto. Notwithstanding the illegal contract, as to the manner of foreclosure, which could not be enforced, respondent remained the owner of the bond and mortgage, and could at any time, we think, demand and recover the same of defendant, or the proceeds thereof, if collected.

Again, the agreement between plaintiff and defendant as to the foreclosure, was not immoral or malum in se, but merely prohibited by statute. The right of parties who have entered into a contract which is merely malum prohibitum, is clearly stated by Judge Andrews in Pratt et al., v. Short et al., 79 N. Y., 437, 445, as follows: “ It is, no doubt, the general rule of law, that no right of action can spring out of an illegal contract. And the rule that an illegal contract cannot be enforced, applies as well to contracts malum-prohibitum as to contracts malum in se. But it does not necessarily follow that all the consequences attending a contract which is contrary to public morals or founded on an immoral consideration, attend and affect a contract malum prohibitum merely. The law in the former case will not undertake to relieve parties from the position in which they have placed themselves, or to adjust the equities between them. But in the latter case, while the law will not enforce the prohibited contract, it will take notice of the circumstances, and if justice and equity require a restoration of money or property received by either party thereunder, it will, and in many cases has, given relief.” See also The Utica Insurance Co. v. Scott, 19 Johns, 6-7; Rome Savings Bank v. Krug, 102 N. Y., 331-333; 1 St. Rep., 694.

In Pratt et al. v. Short et al., supra, a savings institution discounted commercial paper, such discounting being prohibited by statute. It was held that the discounted paper was void and could not be enforced. But as the Institution was authorized to loan money,-it could recover the money actually loaned. In other words, the Institution had delivered money to parties on a prohibited security, the contract being prohibited by statute, and yet could recover the money received by defendant under such prohibited contract. So, in this case, plaintiff delivered her bond and mortgage to defendant, with an unlawful agreement as to its foreclosure, but, nevertheless, justice and equity demanding that defendant should return the bond and mortage or the amount collected thereon to plaintiff, as held in the authority above cited, the law will give her the relief to which she is entitled.

Other answers might be made to the position asserted by defendant, but we do not deem any further discussion necessary.

It is suggested by appellant that respondent is bound in this action by the foreclosure judgment. Assuming, that she consented to the foreclosure by appellant in his own name, she is undoubtedly estopped as to the defendants in the foreclosure action ; but she does not seek in this action to impeach or invalidate that judgment as to the defendants therein or the purchasers thereunder. The foreclosure judgment is not an estoppel as between the plaintiff and defendant as to the question litigated in this action. It was adjudged in the former action as between Fanning and the defendants therein that Fanning was the owner of the bond and mortgage, and as to said defendants, plaintiff consented to such foreclosure in the name of Fanning and is estopped. But the judgment in said action cannot be held to conclude plaintiff in this, because as between plaintiff and defendant the question of the actual ownership of the bond and mortgage was not tried in the foreclosure suit.

We have examined the exceptions taken on the trial and are of the opinion that none of them require a reversal of the judgment.

If the evidence as to the deeds of Benjamin to Elmira J. Fanning, and by the latter to Robert J. Walrad, and as to the market value of the mortgaged premises was immaterial, it is clear that defendant was not injured by its reception. The jury were instructed by the trial court, that if they fonnd for the plaintiff, that she was entitled to recover $4,185, and interest. No objection or exception was made to the charge in that regard, and the jury found as instructed by the court. The evidence above referred to, could not therefore in any manner have affected the verdict.

The court did not err in excluding the evidence of the assignment of the mortgage from Richard to Abram Winegard. This evidence related to a collateral matter, and the defendant could not contradict the evidence given by Abram Winegard in that respect. A party who cross-exandnes a witness as to a collateral matter, is concluded by his answer. Carpenter v. Ward, 30 N. Y., 243.

The evidence offered by defendant to show improvement put on the mortgaged premises was immaterial; also the testimony taken on the trial of the case of Fanning v. Vrooman, the foreclosure action, was clearly incompetent.

The court below also properly sustained the objection to the following question: “ Who paid the taxes on the bond and mortgage while he held it ?” If defendant had offered in connection with this question to show that he paid the taxes, to the knowledge and with the consent of plaintiff, the evidence might have been material. His payment of taxes unless done with the knowledge and consent of plaintiff, would not affect her rights, and hence the evidence sought to be introduced by plaintiff was properly excluded. It will be seen that defendant in connection with the question, made an offer, but not to show plaintiff’s knowledge in regard to the payment of taxes.

We conclude that no errors were committed on the trial, and that the judgment should be affirmed with costs.

Herrick, J., concurs; Mayham, P. J., not acting.


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    Daniel E. Mason, App’lt, v. Benjamin M. Secor et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 13, 1894.)

    1. Contract—Renewal.
    Where parties have entered into a contract for services for a certain period, which has elapsed, and their connection still continues, they are deemed to have renewed the contract without executing a new agreement.
    2. Same.
    But this principle does not apply where the employer in the original contract was an individual who, at its termination, formed a copartnership under which the services continued.
    3. Partnership—Effect of Dissolution.
    The dissolution of a firm, by the death of a member, terminates all contracts with its employes.
    Appeal from a judgment in favor of the defendants.

      Andrew Vanderzee for app’lt; I. & J. M. Lawson (Isaac Laiuson of counsel) for resp’t.
   Putnam, J.

Plaintiff was employed as a salesman by one 'Charles G% Craft for several years "prior and up to January 1st, 1890, at a yearly salary of $1,000. At that time Craft formed a partnership with defendants for two years to carry on the same business previously carried on by him. Plaintiff continued to work for the firm as he had before worked for Craft until discharged as below mentioned. Said Craft died on March 13, and defendants discharged plaintiff on March 17, 1890, he claiming an employment for a year, commencing January 1, 1890, at a salary of $1,000. Plaintiff brought this action to recover damages on account of his discharge.

At the close of the evidence the defendants moved for a non-suit, which was granted, and plaintiff excepted.

There was no evidence produced showing that the firm of Charles Gr. Craft & Co., formed on January 1, 1890, ever made any express contract with plaintiff to employ him for any length of time or at any agreed salary or otherwise. It seems that having been at work for Craft prior and up to January 1, 1890, as a salesman, he continued in the same employment with 'the new firm without entering into any express contract with it.

Under such circumstances, ordinarily, an employer can discharge the servant when he elects and is only liable to pay him the value of his services for the period of his employment. But the plaintiff contends that, having been employed by Charles Gr. Craft for several years at an annual salary of $1,000 and defendants having, on January 1, 1890, formed a copartnership with Craft and continued the same business and he (plaintiff) having continued after the formation of the partnership in their employ the presumption is that he continued in the service of defendants on the same terms as when in the employment of Craft alone. Douglass v. Merchants Ins. Co., 118 N. Y., 486; 29 St. Rep., 944; Vail v. Jersey Little Falls Mfg. Co., 32 Barb. 564.

The learned counsel for the appellant fails to cite any authority to sustain his contention as applicable to such a case as this. It is conceded that had Craft continued in business alone after January 1, 1890, and plaintiff had remained in his employ after his last year service a contract to employ him another year on the same terms might have been implied. If there was such an implied contract to employ him in this case it was made after January 1, 1890, that is, after the formation of the co-partnership, and was implied because plaintiff had been employed by Craft some years prior to January 1, 1890, and after the formation of the firm and continued in their employ. In fact, it is a well settled principle, that where parties have entered into a contract for service for a certain period which has elapsed and their connection still continues, they are deemed to have renewed the contract by tacit novation without any new agreement being entered into. 14 A. & E. Ency, of law 770-771.

But we are of opinion that this principle does not apply to such a case as this. The connection between Charles Gr. Craft and plaintiff was not continued. The firm of Charles Gr. Craft & Co., composed of said Craft, Benjamin M. Secor and Josiah D. Chapin, is an entirely different party from the one who employed plaintiff prior to and up to January 1, 1890. At that time Craft ceased to do business and a co- partnership took his place, and there could be no renewal of the contract then existing between Craft and plaintiff unless by an express contract.

Certainly, the plaintiff failed to show any renewal of the contract existing between Craft and himself, because it was not made to appear when the personal agreement between Craft and the plaintiff terminated or in fact that it was ended prior to the discharge of plaintiff by the defendant. Also it does not appear that one of the defendants Secor, ever knew the terms of the contract between plaintiff and Craft.

The plaintiff, therefore, failed to show any contract with defendants to employ him for any definite length of time and the trial judge properly granted a non-suit. (See Morrison v. O. & L. C. R. R. Co., 52 Barb. 173-182.) There was no question of fact for the jury. There was no evidence given from which the jury could have properly found an agreement on the part of defendants to employ plaintiff for a year.

We also think that the position taken by defendants that if there were a contract of employment for a year between the defendants and plaintiff as claimed by him, the said firm having been dissolved by the death of Charles G. Craft, such contract was thereby terminated and defendants could therefore lawfully discharge the plaintiff. Greenburg v. Early, 4 Delehanty 99 ; 53 St. Rep., 130; Lacy v. Getman, 119 N. Y. 109; 28 St. Rep. 546.

The Court properly refused to allow plaintiff to amend his complaint on the trial. But as no exception was taken to such refusal this point does not require any discussion.

The judgment should be affirmed with costs.

. Herrick, J., concurs in result.


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    Edith M. Lamb et al., Infants, by their Guardian ad litem, etc., App'lts, v. Jessie M. Lamb, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February, 13, 1894.)

    1. Infants—Accounting.
    One who occupies the land of an infant wrongfully or without right can be made to account in a proper action.
    2. Same—Consent of Guardian.
    But a person in such occupancy by consent of and under the general guardian is not wrongfully in possession.
    3. Same—Agreement of Guardian.
    The general guardian has a right to allow a person to occupy the infant's premises free of rent, if the arrangement made is a reasonable and fair one.
    4. Use and occupation—Accounting.
    An agreement for use and occupation may not he implied where the attendant circumstances show clearly that there was no intention to demand, or expectation to pay rent.
    Appeal from a judgment entered upon a verdict rendered for the defendant, and from an order denying a motion for a new trial, made upon the minuter-.

      J. F. Crawford (F. Countryman of counsel) for app’lts; Henry A. Strong (Matthew Hale of counsel) for resp’t.
   Putnam, J.

The appellant urges that the court below erred in holding that the action did not lie to recover the value of the use -and occupation of the premises described in the complaint, in the absence of an agreement, express or implied between defendant ■and the guardian to pay rent therefor; that an intruder upon, or a mere occupant of, the lands of an infant, is liable to account in .an action for rents and profits.

It is undoubtedly true that one who occupies the land of an infant, wrongfully or without right is an intruder thereon, and can •be made to account in a proper action.

Is this one of those cases, under the pleadings, or the facts appearing on the trial, where the defendant could be made to account in the absence of an express or implied agreement to pay rent ?

The complaint certainly is not drawn to recover a claim for mesne profits or rents accrued to plaintiffs by reason of a ■wrongful occupancy of the lands belonging to plaintiff’s.

It is held that a mere intruder on the lands of an infant is considered in equity as entering in the character of guardian; and after the infant comes of age he may, by a bill in chancery, recover the mesne profits. Martin's Admr. v. Fielder, et al., 82 Va., 455-459 ; Van Epps v. Van Deusen, 4 Paige, 64-71; Drury v. Connor, U. Harris & Gill, 220.

It does not appear that the complaint is drawn as a bill in -equity to recover the mesne profits, under the above cases. It •does not state facts to justify such a recovery. It does not allege how defendant entered or occupied said premises; or that she occupied them wrongfully or as an intruder or without the consent of plaintiffs’ general guardian. It does not ask an accounting. The complaint is evidently framed to recover rent for the use and occupation af the premises described in the complaint due to plaintiffs under an express or implied contract. We are therefore inclined to agree with the position taken by respondent that under the pleadings, the plaintiffs to recover, were compelled to •show an express or implied contract with the defendant to pay rent.

But, assuming the complaint is sufficient to justify a recovery in the absence of such contract, we are of the opinion that under the facts established on the trial, the court below made the proper disposition of the case.

The authorities cited by appellant to sustain his position above referred to are not applicable to such a case as this. In Boylan v. Dienzer, (35 N. J., Eq., 485) the defendant wrongfully retained possession of lands of plaintiff after her term had expired. The case merely affirms and old doctrine stated in Story’s Equity Jurisprudence 571 viz.: “ Thus for instance, if a man intrudes upon an infant’s lands and takes the profits, he is compellable to account for them, and will be treated as a guardian or trustee of the infant. And this is but following out the rule of law in like ,cases, for so greatly does the law favor infants, that if a stranger enters into and occupies an infant’s lands, he is compellable at law to render an account of the rents and profits, and will be chargeable as guardian or bailiff.

In Hicks v. Sallitt, 3 De Gex M. & G. 782, it was held that a party found wrongfully in the possession of property is to account for the rents and profits. All the other authorities cited by plaintiff’s are to the same effect,-bolding that a mere intruder or one wrongfully or without right, in possession of the premises of an infant in a proper action may be made to account for the rents and profits.

In this case, plaintiffs failed to produce any evidence showing that the defendant was an intruder or wrongfully in possession of the premises in question. The testimony shows that she was rightfully occupying the same. It will not be questioned but what James White, as general guardian of plaintiffs’ had power to control their real estate. He could bring ejectment or trespass, could lease, manage or protect the same. (See 2 Kent’s Com. 228; Torry v. Black, 58 N. Y. 185). The evidence fairly shows that the defendant remained in possession of plaintiffs’ real estate by consent of and under the general guardian. There is a dispute as to the terms of her occupancy, she claimed that lie agreed she might have the use of the house and $1,000 a year, for the board and clothing of the children; and he testifying to facts from which a conditional agreement to pay rents might be inferred. But by the testimony of both, there being no other evidence in the case on the subject, it appears that after the death of her husband, defendant continued in the occupation of the premises with the consent of the guardian. She testified, as already stated, that she was to remain in possession of the house and receive $1,000 a year for the board and clothing of plaintiffs. He testified in regard to her occupancy of the house as follows: “I told her that Mr. Crawford bad told me it was necessary for me to make up an annul report of the business I had done for the children as guardian. She said: ‘I suppose we will know how much the rent is going to be now.’ I said I suppose so. I made up my report, and expected to go down with it, and Mr. Crawford came in and said it was not necessary for me to go down ; that he would go down. * * * Q. Did you after-wards have a.conversation with Mrs. Lamb? A. Yes,sir. * * " Q. What was said between you? A. I said Mr. Crawford has returned. They have said nothing in regard to the rent. That is, the surrogate had said nothing. '* * * Q. What did you say to her about rent for that residence? A. I said hern ade no remarks about the rent of the residence, and she said: ! Probably he don’t intend to charge me anything.’ Q. Speaking of the surrogate? A. Yes, sir. I said it looks so. Q. Before that time had remarks passed between you and Mrs. Lamb upon the subject of the surrogate fixing the rent ? A. Yes, sir. The witness: we had talked about it. "x" * * Q. From what had occurred between you what did she say about her impression, and what did about giving ? A. That he had the stating of the amount of the rent. Q. That is the surrogate had? A. Yes, sh*. Q. Or whether rent should be paid at all? A. Yes, sir."

Plaintiff’s testimony therefore shows that defendant was in occupation under an agreement to pay rent if the surrogate required it, otherwise not. Hence, by the testimony of both parties, defendant was rightly in possession of said premises by consent of the guardian.

Hence, the authorities referred to by appellant, and on which he relies, are no applicable. The defendant being in possession of the premises in question -under an agreement with the guardian (and he was in fact the landlord) that she should have the rent of the said premises and $1,000 for boarding and clothing said children, or under the circumstances and agreement as detailed by the plaintiff in his testimony, in either case, was so in occupation under the guardian, by bis permission, and hence was not an intruder or wrongfully on the premises. It follows, we think, that respondent, if liable at all to pay rent, was so liable under an expressed or implied contract to make such payment. She could not be made responsible as a wrong-doer or intruder or one unlawfully in possession. The trial judge therefore properly charged the jury that unless there was an express or implied agreement to pay rent the plaintiff could not recover.

As to whether the evidence disclosed such an agreement on the part of the defendant was a question of fact, which was properly and fairly submitted to the jury by the trial court, and we cannot say that the verdict of the jury was unsupported by the evidence. It is held that while the possession of real property with the consent of the owner is ordinarily sufficient to sustain an action upon an implied agreement for use and occupation, such an agreement may not be implied where the circumstances attending the use and occupation show clearly there was no expectation to pay rent by either of the parties. Collyer v. Collyer, 113 N. Y., 442; 22 St. Rep. 723.

Even if we should not take into consideration the testimony of defendant in the case, we think the other evidence was sufficient to support the conclusion of the jury. The petition to the surrogate signed by defendant stating that no rent was derived from the premises in question; the testimony of White before the surrogate that he thought as long as defendant and her children occupied the house-she should live there rent free; his annual reports to the surrogate, in which he made no mention of rent; his semi-annual payment to defendant without deducting anything for the use of said premises; the fact that she remained in the oceupation five years without plaintiffs making any claim on account of the occupancy; all the facts proved on the trial tend to show that it was not the intention of the parties that defendant should pay for the occupation of said house, but that she should have the use of the homestead for herself and the plaintiffs in addition to the payment of one thousand dollars.

It is suggested that if plaintiffs permitted defendant fo occupy the premises .she had no right to use them, and plaintiffs had no right to allow her to do so without the payment of rent within the principles established in Torry v. Black, (supra) and kindred cases. But the guardian had a right to allow defendant to occupy the premises free of rent if the arrangement he in fact made was a reasonable and fair one. He could allow her to remain therein in part payment for the board and clothing of his wards. The guardian and defendant could not make a contract, the effect of which was to defraud the plaintiffs. But such a fraudulent arrangement was not alleged in the complaint or proved on the trial. It was not-shown that the use of said premises and the payment of $1,000 was not a proper and just arrangement. The defendant was entitled to the use of one-third of the premises, and she therefore received the use of two-thirds thereof and $1,000 for taking care of the three plaintiffs, the latter occupying the house with her. It certainly does not appear from the evidence that a contract which allowed her the use of the house was improper. If the view taken by the plaintiffs is correct, respondent furnishes a house worth $60*0 per annum for the purpose of keeping the three infants, receiving $1,000 per year for their board and clothing. Such an arrangement might be deemed unfair, it not being probable that she would have required such a house except for the purpose of boarding the plaintiffs.

We have examined carefully the various exceptions taken on the trial. We do not think either of them require discussion or a reversal of the judgment.

Judgment affirmed with costs.

Mayham, P. J., concurs in result, Hebrick, J., not acting.