text:
    Henry W. Sage et al., App'lts, v. David G. Burton, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Payment—Unauthorized indorsement by agent.
    In an action for goods sold the answer alleged payment, the only proof of payment was that a check for $100 less than the amount of the bill was given to plaintiffs’ agent, who had authority to receive payments and make reductions, and that such check had been returned. through the bank indorsed with the firm name and by the agent. It was conceded that the indorsement in the firm name was a forgery. Held, that there was no proof of authority in the agent to indorse the check or to receive one for less than the amount of the hill in the absence of proof of error or mistake, and that the proof was insufficient to show payment.
    Appeal from judgment dismissing the complaint at the close of plaintiffs’ evidence, pursuant to the direction of the court.
    The action was brought by the plaintiffs to recover of the defendant the sum of three hundred and forty-six dollars and thirty-six cents ($346.86), with interest thereon, for goods sold and d'elivered by the plaintiffs to the defendant, and services rendered, •both at the defendant’s request.
    The defendant, in his answer, admits the sale and delivery of .the goods, and the rendering of the services’ at his request, and alleges payment. He sets up no counter-claim, but merely alleges payment of the account.
    The plaintiffs compose the firm of H. W. Sage & Co., dealers in lumber.
    The only evidence of payment offered on the trial was a check drawn by the defendant (and produced by him at the trial during the cross-examination of one of the plaintiffs), to the order of H. W. Sage & Co., for two hundred and thirty-four dollars and eleven cents ($234.11), or exactly one hundred dollars ($100) less than the amount of the claim in suit.
    The check bore upon its back the words “ H. W. Sage & Co.,"’ “ J. B. Abbott,” was drawn upon the People’s Bank of Mt. Vernon, and apparently paid by said bank March 10, 1890.
    The indorsement on the check of the name of IT. W. Sage & Co., the payees named in it, was a forgery, and conceded to be such. The check never came to the possession of the plaintiffs, and Abbott, whose name also appeared on its back, had no authority to make the indorsement of their name.
    The plaintiffs had no knowledge of the existence of the check until after the bringing of this suit.
    As to the remaining one hundred dollars ($100), a statement for the amount sued for was produced by the defendant and admitted, under objection and exception of the plaintiffs’ counsel, receipted in the name of H. W. Sage & Co. by Abbott, showing a deduction of $100 on the account. This allowance was in the handwriting of Abbott and did not come to plaintiffs’ knowledge until after suit brought.

      Tracey & Cooper (James Fenimore Cooper, of counsel), for app’lts; George II. Stevens, for resp’t.
   Per Curiam.

The defendant failed to show any authority in Abbott to indorse the check. On the contrary, it appeared that he had no such power. Certainly, without any proof of error or mistake in plaintiff’s account, which is admitted by the answer, he was not shown to have possessed any power, as agent of plaintiffs, to receive a check for $100 less than plaintiffs’ conceded account in payment thereof. The check with which defendant claims to have paid the account set out in the complaint was produced on the trial by defendant, with a forged indorsement, and hence was then in defendant’s possession unpaid.

We think defendant did not show payment of plaintiffs’ conceded account, and hence that it was error to non-suit.

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

Mayham, P. J., and Putnam, J., concur; Herrick, J., not acting.


source: Caselaw Access Project

author: Per Curiam.—We

license: Public Domain

text:
    Orrando P. Dexter, App’lt, v. William Dana Dustin et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Judgment—Original answer and order allowing amendment no
    PART OP ROLL.
    Tlie original answer, which has been superseded by an amended answer, and the order directing the substitution, form no part of the judgment roll, and should not be included therein.
    3. Same.
    The fact that the order contains a provision saving the rights of the plaintiff to costs or disbursements occasioned by reason of the original answer does not change this rule, where such order was filed with the county clerk and was not presented to the trial judge.
    Appeal from order directing the county clerk to strike from the judgment roll the original answer and an order permitting the service of an amended answer.
    The following is the opinion of the court below :
    Kellogg, J.—A motion is made herein to strike from the judgment roll as filed with the clerk of the county of Franklin, where this action was tried, the original answer and the order of the court directing that the amended answer be received and treated as the answer in the case.
    The simple question is, whether as a matter of practice the original answer, which has been superseded by an amended answer, is properly a part of the judgment roll, and whether the order directing the substitution is also a proper part of the judgment roll. I think not. The original answer can no longer affect the merits, nor can the usual order of substitution affect the merits of the action. ‘ The merits of the action must be discovered from the issues raised by the complaint and the amended answer, where the amended answer is a substitute for the original answer. The trial of the action is a determination of the merits appearing from the issues formed by the complaint and the amended answer only. This being an equity action, the plaintiff claims that although the determination of the merits was in plaintiff’s favor, the court refused to grant plaintiff costs of the action, and that plaintiff has appealed or is about to appeal on that ground. He also claims that the order substituting the amended answer for the original answer had a clause saving the rights of plaintiff to costs or disbursements which may have been occasioned by reason of the original answer, and that this saving clause in the order should have been taken into consideration by the justice before the action was tried, in determining the question of costs. It is difficult to see how the existence of this order or this provision in the order could be brought to the knowledge of the trial justice on any presumption that he was bound to know of the existence of such an order on file in the office of the clerk of the county of Franklin; and it would be absurd, it seems to me, to now claim—without having brought this order to the knowledge of the trial justice— that counsel for plaintiff should ask that it be considered by the general term, as weighing upon the question of an abuse of discretion upon the part of the justice on the subject of costs. This would be presenting a different case to the appellate court from that which was presented upon the trial before the trial justice. There was one plain way in which the matter might have been brought to tiie knowledge and notice of the trial justice. If the plaintiff desired any facts should be presented to him other than the facts developed upon the trial, it would have been an easy matter to have also presented this order and the original answer as a part of his evidence, claiming that it had a bearing on the discretion of the justice in determining whether the plaintiff was entitled to costs, and how much, if any. In what way the contents of the original answer, which had been relegated out of the case by the order, or in what way the provisions of the order itself could be considered by the trial justice without being presented to him, is not clear. Certainly the justice cannot be presumed to know the contents of such an answer which is not within the case, or the provisions of an order on file in the county clerk’s office, although such an order may have been made in the case. This order is not an order affecting the merits. It relates solely to the costs; and costs can never be considered, even in an equity case, as coming under the head of merits, as understood in the practice. The contents of this original answer after It was removed from the case, and the contents of this order on file in the county clerk’s office, were facts which could be brought to the knowledge of the trial justice only on presentation and proof. This appears not to have been done in this case. They are consequently no part of the case, and are improperly attached to the judgment roll. For these reasons it is ordered that they he stricken therefrom.

      John P. Badger, for app’lt; Kellas & Munsill (John P. Kellas, of counsel), for resp’ts.
   Per Curiam.—We

We are of opinion that the order in question in this case should be affirmed on the opinion court See Brown v. Saratoga Railroad Co., 18 N. Y., 495; Thornton et al. v. The St. Paul & Chicago R. R. Co., 6 Daly, 511.

Mayham, P. J., Putnam and Herrick, JJ., concur.


author: Mayham, P. J.

text:
    Jacob M. Snyder, App’lt, v. Henrietta Church et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Ejectment—Title.
    This action was brought to recover lands claimed to be wrongfully held by one 0., since deceased. Plaintiff showed a chain of title to Kidd & Cagger; also a deed to his grantor which purported on its face to be from Kidd & Cagger, but was signed by other persons, and proof that it was in the handwriting of C., who delivered it to said grantor. Held, that plaintiff failed to show any legal title in himself, and was not entitled to recover.
    2. Same—Champerty.
    At the time plaintiff received his deed .defendant was in possession, claiming adversely to plaintiff’s grantor. Ileld, that plaintiff’s deed was void for champerty.

      Appeal from a judgment entered upon an order at the circuit dismissing the plaintiff's complaint in an action of ejectment.

      W. & G. W. Youmans (W. Youmans, of counsel), for app’lt; Marcus T. Hun, for resp’ts.
   Mayham, P. J.

The complaint is in the usual form in an action in ejectment, alleging that the plaintiff is the owner in fee of a farm, of about 130 acres of land, and alleges that Walter S. Church for about eight years before the commencement of the action had been in the wrongful possession and was wrongfully withholding the possession, and that the annual value of the use of the premises was about $200.

The complaint demanded judgment for the possession of the farm and damages for the use of the same.

The answer was a general denial. On the trial the plaintiff put in evidence a lease dated May 9, 1797, executed by Stephen Van Rensselaer to John Jose Shafer. The lease granted, sold, remised, released and confirmed the demised premises to the lessee upon conditions of payment by him or his assigns of an annual rent, and the performance of the annual service therein specified, and was in the usual form of the Van Rensselaer manorial leases, and purported to convey 253^ acres of land.

The plaintiff also put in evidence a warranty deed from John Jose Shafer to John J. Dietz, dated the 14th day of October, 1831, purporting to convey 126 acres of land, being the north half of the land originally leased by Stephen Van Rensselaer to John Jose Shafer, father of the grantor in said deed. This deed was subject to the rents, and reservations contained in the original lease.

The plaintiff also put in evidence the last will of Stephen Van Rensselaer, devising all his interest in his lands and rents reserved to his son, Stephen Van Rensselaer, which will was admitted to probate April 30, 1839; also a deed from Stephen Van Rensselaer to James Kidd and Peter Cagger, dated May 2, 1864, conveying the landlord’s interest in the premises in question.

The plaintiff’s counsel also put in evidence a deed from James Kidd and Peter Cagger to Walter S. Church, dated July 8, 1878, conveying the landlord’s interest in the premises in question.

The plaintiff gave evidence tending to prove that Walter S. Church acted as the agent of Kidd and Cagger previous to the time of their deeding to him their interest in this land, with others; that Church had an office and did the business, except in suits, and Cagger was the attorney.

Plaintiff also gave evidence by several witnesses tending to prove that an instrument purporting on its face to be a deed from Kidd and Cagger to Jacob Dietz, dated 17th of May, 1867, and to convey the premises in question, was made out in the handwriting of Walter S. Church, but which purported to have been signed by Paul Coggerville and J. Koons. This deed was offered and received in evidence, with its indorsements, and is as follows:

“ This indenture, made the 17th day of May in the year of our Lord, 1,867, between James Kidd and Jane Maria, his wife, and Peter Dagger and Elizabeth E., his wife, of the city of Albany, and Jacob I. Dietz, of the town of Berne, in the county óf Albany, of the second part.

Witnessed), that whereas, Stephen Van Rensselaer, now deceased, by an indenture dated on the 21st day of January in the year 1801, granted and conveyed to Jacobus Dietz certain lands, embracing the lands which are hereinafter more particularly described, subject to a certain perpetual rent, and to certain reservations and conditions in and by said indenture of lease provided for, and whereas by various grants, assignments and conveyances the title to said reserved rent, and to all the estate and interest of said Stephen Yan Rensselaer in the premises so leased in fee, and particularly hereinafter described and granted, has become and is vested in the parties of the first part hereto.

“Mow, therefore, the said parties of the first part, for and in consideration of the sum of $2,000, lawful money of the United States of America, to them in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, have granted, aliened, remised, released, enfeoffed and confirmed, and by these presents do grant, alien, remise, release, enfeoff and confirm unto the said party of the second part, and to his heirs and assigns forever, all the said rent so reserved out of and chargeable upon, and all his estate and interest in certain lot, piece or parcel of land, situated now in the town of Berne, in the state of Mew York, county of Albany, and manor of Rensselaerwyck, and hereinafter more particularly described. Together with all and singular the rents, hereditaments and appurtenances thereunto belonging, or in _anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, or issuing or reserved therefrom, and all the estate, right, title, interests, claims and demands whatsoever of the said parties of the first part, either in law or equity, of, in and to the above granted premises, with the said hereditaments and appurtenances ;■ to have and to hold the above mentioned rents and hereinafter described premises, with the appurtenances and every part and parcel thereof, to the said party of the second, part, his heirs and assigns forever. And the said James Kidd and Peter Dagger for themselves, their heirs, executors and administrators, do covenant, grant, bargain, promise and agree, to and with the said party of the second part, his heirs and assigns, to warrant and forever to defend to the said party of the second part, his heirs and assigns, against the said parties of the first part, their heirs, executors, administrators and assigns, and against all and every other person or persons claiming or to claim by, under or through them, the said parties of the first part, or their or any of their acts or deeds, the said above mentioned and hereby granted rents and premises, which are more particularly described as follows, viz.: All that certain piece or parcel of land situate, lying and being in the town of Berne, and being the same lands which the sheriff of Albany county conveyed to John B. Dietz, and the same as were formerly owned by Jacob I. Dietz.

In Witness whereof the said parties of the first part have hereunto set their hands and seals the day and year above written.

Paul Coggerville, [l. s.]

J. Koons. [l. s.]

Sealed and delivered in the presence of

E. Williams.

Indorsed: Warranty deed. James Kidd and Jane Maria, his wife, and Peter Oagger and Elizabeth F., his wife, to Jacob I. Dietz. Dated the 17th day of May, 1867."

There was evidence tending to show that Church delivered this instrument to Jacob I. Dietz, the grantee therein named, at the time it bears date, and the plaintiff urges that it appears from the deed itself that Dietz paid the consideration therein expressed of $2,000.

The plaintiff also put in evidence a deed from Jacob I. Dietz to Jacob M. Snyder, purporting to convey the premises in question, dated July 3, 1890.

The plaintiff also proved the death of Walter S. Church after the commencement of this action, the probate of his will and the substitution of Henrietta Church, his executrix and devisee of his lands, as defendant in this action.

Upon these facts, the defendant, at the close of the plaintiff’s evidence, asked the court to non-suit the plaintiff. The plaintiff insisted in submitting the case to the jury. The court declined to submit the case to the jury and non-suited the plaintiff.

If this action had been to reform a deed for mistake or fraud, I should be strongly inclined to grant relief, but as the case stands I see no ground for granting a new trial.

Clearly the plaintiff has failed to show any legal title in himself, as the grantors to Dietz do not appear to have had any title to these lands cither legal or equitable.

Dietz, therefore, acquired no title which he could convey to Snyder. This being so, it is unnecessary to examine the alleged delect in the defendant's title to these premises, as the rule is well settled, that in actions of ejectment the plaintiff must recover upon the strength of his own title and not upon the weakness of the title of his adversary.

There seems to be another objection to the recovery of the plaintiff in this action upon the face of the complaint and proof. The complaint shows that the defendant was at the time of the commencement of the action, and for eight years prior thereto, had been in possession, holding adversely to the plaintiff's grantor. The plaintiff’s deeds bear date in 1890 and while the defendant was in possession ; as matter of law, as against the defendant, the plaintiff’s deed was void for champerty.

We think the learned justice was right in non-suiting the plaintiff.

Judgment affirmed, with costs.

Putnam, J., concurs; Herrick, J., not acting.


author: Per Curiam.

text:
    Peter J. Soderman, Resp’t, v. The Troy Steel & Iron Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Negligence—Defective appliances.
    Plaintiff was injured while transporting slag from defendant’s works, by the dumping of the car, which threw the slag upon him. The box of the car was a movable one, worked by hand, with hooks to hold the box in place. Plaintiff claimed tiiat the car was defective; while defendant claimed that the accident was caused by the negligence of co-employes in not adjusting the hooks before starting the train. Held, that there being evidence to support plaintiff’s theory, a verdict in his favor would not be disturbed.

      2. Same—Damages.
    Plaintiff was a man fifty-six years old and earning two dollars a day wages. The injury was o"f a permanent character, and renders him practically unable to perform manual labor. Held, that a verdict of $1,000 was not excessive.
    Appeal from a judgment entered upon the verdict of a jury at the Rensselaer circuit for one thousand dollars ($1,000), and costs.
    The action was prosecuted for alleged negligence of the defendant in furnishing an alleged defective car, upon which the plaintiff was employed to work in transporting slag from defendant’s steel works to a dump on defendant’s ground where such slag was deposited.
    The plaintiff was a common laborer, and had been in the employ of the defendant as such for about ten years, and appears to have been subject to the orders and directions of one Babcock, who was boss laborer on defendant’s works.
    On the 28th of August, 1888, the plaintiff, with other employes of the defendant, loaded several cars with this refuse material and ran one train without accident to the dump, discharged the load and backed up to the pit at defendant’s furnace, reloaded their train and started again for the dump.
    The train was run at about the rate of three or four miles an hour. Before reaching the dump the body of the car on which plaintiff was seated, without any interference by any of the employes, became unhooked from the truck, and dumped its contents, carrying the plaintiff with it, who fell under the loading of the car and was injured.
    The car on which the plaintiff was employed was so constructed that the body rested upon the truck and was attached to a centre shaft running lengthwise of the box so that the shaft could be moved b)r a crank at one end. «
    This shaft was attached to two rollers or wheels, one at each end, about six inches in diameter, which supported the box and aided in moving it. The rollers rested on cross bars running across the car on the truck. On this shaft at its central part under the car is a pinion or small notched wheel. This pinion is so placed as to engage with the rack, which is a flat strip of iron with teeth projecting above it running transversely across the frame which supported the car box.

      When this shaft, which is moved by a crank turned by hand, is set in motion, the teeth of the pinion engaged with the toothed surface of the rack and the box by the aid of the rollers is moved laterally until- its centre of gravity gets beyond the support, when the box dumps.
    There are also two chains connected on the car box with the truck, which prevent the box from passing beyond the point necessary to dump its load. The mode of fastening the car box to the truck is by means of two hooks which, are attached to the cross bar, which is immovably fixed to the truck upon the side of the truck opposite to that from which the car dumps. When the car box is in place, the books attached to this cross bar are hooked over the central shaft. These hooks are fixed by the operatives and designed to fasten the box in its place.
    If the hooks are not adjusted or placed upon the shaft, the box becomes insecure and the jar incident to the moving of the train would be sufficient to set the car box moving laterally and cause the dump. The evidence discloses that it was in consequence of these hooks becoming detached that the car box slid laterally as the train was moving and thus caused the accident. The contention on the part of the plaintiff is that this apparatus was insecure, and that the construction of the car was in this regard generally defective.
    There is some evidence in the case on the part of the plaintiff tending to show that one of these hooks had been slightly straightened and thus rendering it less secure than it would have been if the hook had been as originally intended.
    While the witnesses on the part of the plaintiff and defenW , all agree as to the general construction of nis . u ¡.her rs a marked difference in their testimony as to whether •> aoVit was the best or most approved method of constructing cars, for the purpose for which these cars were used, and there is some-'evideuce tending to show that the defendant at this time-cars for this purpose, of a different construction. X
    The controversy in this case turns largely upon the .of this method of construction of cars and the conditio‘fi-^f is :s particular car as to the hook which was intended to hold the 'ibqdy in place. SlUiilClOiiiJv
    The theory of the plaintiff was that this accident occurred by reason of the delect in the car, while the contention of the defendant is that the accident resulted from some negligence on the part of plaintiff’s co-employes in not adjusting the book before the starting of the train, raid this difference was sharply contested by the evidence on either side. There is no evidence of negligence by the plaintiff offered by the doie.'-'p-nt; which tended to produce the injury complained of.

      Lansing & Cantwell (James Lansing, of Counsel ), for respt; B. A. Parmenter, for app’lt.
   Per Curiam.

The principal question in this caso vas whether this car was such a reasonably safe car for the plaintiff to work upon as the employer is required to furnish for the use of its employe. This question, as this case was tried, was one of fact under the evidence which the jury were called upon to decide, and as the evidence was conflicting, it became their duty to settle that controversy, and there being sufficient evidence in support of the plaintiff’s theory to uphold the verdict, this court should not interfere with their determination unless there is something in the amount of the verdict calculated to show that the jury were influenced by prejudice or passion.

It is urged on the part of the defendant that the verdict was excessive, and the. defendant moved to set it aside on that ground, on the trial. We do not think the refusal of the learned trial judge to set aside the verdict as excessive was erroneous.-

The plaintiff was a man in good health, about 56 years old, and was earning at the time of the accident about two dollars per day.

The evidence discloses that the injury is of a permanent character, and that the plaintiff by reason of it is rendered practically unable to perform manual labor.

Upon the evidence, assuming that the jury were right in finding that the injury was the result of defendant’s negligence, we cannot see that the verdict of $1,000 was excessive. There were some exceptions taken by the defendant to the ruling of the judge in the reception and rejection of evidence taken upon the trial, and to the judge’s charge to the jury.

We have examined these exceptions and see no error committed by the learned judge for which this judgment should be reversed.

Judgment affirmed, with costs.

Rtttnam and Herrick, JJ., concur.


author: Matham, P. J.

text:
    Caprie A. Racine, Adm’rx, App'lt, v. The New York Central & Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Master and servant—Negligence.
    z' The rule that an employer is bound to furnish a reasonably safe place for its employes to work and to use reasonable care in keeping such place free from unnecessary peril does not go to the length of making the employer an insurer against, injury by the breaking of machinery or the explosion of boilers, while used by an employe, provided such machinery is apparently in a safe condition and the injury results from latent weakness or defect unknown to the employer anil which the exercise of ordinary care and skill would not enable, him to detect and guard against. When an accident happens under such circumstances it must he regarded as one of the risks incident to the employment which, when no fault is chargeable to the employer, the employe assumes.
    Appeal from a judgment entered upon the order of a judge at circuit, dismissing the plaintiff’s complaint with costs.

      Chamberlain & Caldwell (Worth Chamberlain, of counsel), for app’lt; Mullin, Griffin & Walker (D. G. Griffin, of counsel), for resp’t.
   Matham, P. J.

The plaintiff’s intestate was killed, while in the employ of the defendant by the explosion of a boiler on one of the defendant’s locomotive engines, and the only question raised on this appeal is whether the trial judge should have submitted to the jury as to whether or not the defendant was negligent in furnishing an unsafe place for the plaintiff’s intestate to perform his work.

The injury occurred by an explosion of the crown sheet of the boiler, and there was some evidence that about one week before the explosion which caused the injury the water in the boiler had been lowered so that the crown sheet was not covered, and that the engineer discovered that the plate appeared white, and the attention of the master mechanic was called to it, and after some examination of the boiler by experienced engineers and by a boil-maker, who discovered no evidence of injury or weakness to the boiler, she was kept at work.

The evidence shows that the maximum capacity of the boiler to resist the' pressure of steam was between 140 and 145 pounds before she would exhaust steam or pop off, as the witness called it, automatically by forcing open the safety valve on the engine; and the evidence show's that frequently, after the alleged burning of the crown plate, she carried her full amount of steam, ana popped off regularly when the maximum pressure was reached.

The evidence also disclosed that she was used from the time of the supposed burning of the plate to the time of the explosion in hauling freight trains over the road, and showed no signs of weakness or leaking, and that on the day of the accident she had hauled a freight train from Watertown to Sandford’s Corners, where she was transferred to a passenger train which she hauled to Philadelphia, whence she started back without a train, to be again attached to the freight -which she had left, and. while carrying but 110 pounds of steam and running at the rate of ten miles an hour she exploded, and caused the injury complained of.

We think that upon these facts the plaintiff failed to establish affirmatively any negligence on the part of the defendant in not providing a reasonably safe place for the plaintiff’s intestate to work.

The doctrine is doubtless well settled by authority that the defendant is bound not only to furnish a reasonably safe place for its employes to work, but it must use- reasonable care in keeping such place free from unnecessary peril. Hawley v. Northern Central R. Co., 82 N. Y., 370; Mehan v. Syracuse, Binghamton & N. Y. R. R. Co., 73 id., 585.

But this rule does not go to the length of making the employer insurer against injury by the breaking of machinery or the explosion of boilers while used by an emploj'e in the service of the employer, provided such machinery is apparently in a safe condition and injury results from latent weakness or defect unknown to the employer, and which the exercise of ordinary care and skill by the employer would not enable him to detect, or guard against, and when an accident under such it must be regarded as one of the risks incident to the employment, which, when no fault is chargeable to the employer, the employe assumes.

The boiler in this case, after the supposed burning of the crown plate, was subjected to the test of 145 pounds pressure, its maximum capacity, and registered that pressure, and upon that test was put in service by the defendant, in hauling freight and passenger trains, under a pressure as would seem from the evidence of from 140 to 145 pounds of steam, and continued in such service for about one week after such supposed burning of the plate, to the time of the accident, without any evidence of weakness. It finally exploded while carrying only 110 pounds of steam and while running at a moderate rate of speed alone, and without a train. We fail to see from the evidence either that the place furnished by the defendant for the intestate to work was unsafe, or that the defendant was guilty of negligence in suffering it to become unsafe while the intestate was employed by the defendant. We think under the proof in this case if it had been submitted to the jury, and a verdict had been rendered in favor of the plaintiff, it would have been the duty of the trial judge to have set it aside upon the minutes.

In such a case it is the duty of the judge to non-suit and we think, therefore, that the non-suit was properly granted in this case.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


author: Mayham, P. J. Putnam, J.

text:
    John Flood, Resp’t, v. Henry Van Wormer, Com’r of Highways, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Highways—Encroachments—Injunction.
    Where a commissioner of highways serves an order directing the removal of a building as an encroachment on the highway, the court may, in a proper case, interfere by injunction to.prevent irreparable injury, as the commissioner has power under the statute to summarily remove it himself, without affording an opportunity to try the question as to the fact of encroachment.
    3. Same.
    The highway in question had been used for many years prior to 1840, but was not laid out or recorded. From 1849 it was used by a plank-road company until 1889, when it was abandoned. The traveled part of the highway remained as it had originally been, the planks being twenty-four feet from plaintiff’s house, and the fences remained as they had been for forty years. Held, that as the highway was never laid out or recorded, to became a highway only to the extent of the public user, and plaintiff’s house not being within the limits of the highway as so used, it was not an encroachment.
    Appeal from judgment in favor of plaintiff, entered upon report of referee.

      Daniel Naylon, Jr. (Alonzo P. Strong, of counsel), for app’lt; Lewis Cass (Jacob H. Clute, of counsel), for resp’t.
   Mayham, P. J.

This is an appeal from a judgment entered, upon the report of Hon. Charles 0. Tappan, as an in equity to restrain the defendant as commissioner of highways from proceeding to remove plaintiff’s house, which, it was alleged, encroached upon the public highway, and which he was about to remove as an alleged encroachment.

The defendant, at the time of the commencement of the action was, and for some time previous thereto had been the sole acting commissioner of highways of the town of Rotterdam, Schenectady county. The plaintiff, since the 29th day of July, 1887, had been the owner in fee of the lands described in the plaintiff’s complaint, and in the fall of 1887 erected a house on said premises, which has ever since remained thereon.

On the 13th day of July, 1891, the defendant, acting as sole commissioner of highways, assuming in good faith to believe that the plaintiff’s house encroached upon the public highway in his town, served or caused to be served upon the plaintiff a notice and order of which the.following is a copy:

“ To John Flood:

Take notice that an order has been duly made by" the commissioner of highways of the town of Rotterdam, a copy of which is hereby enclosed and is part of this notice; and that you are required, according to the statute in such case made and provided, to remove the building or house therein mentioned in said order within sixty days of the service of this notice upon you.

“Dated July 13, 1891.

Henry Van Worker,

Commissioner of Highways of the Town of Rotterdam."

To this notice was attached the following order :

“The undersigned, sole commissioner of highways of the town of Rotterdam, in the county of Schenectady, H. Y., having ascertained that the public highway in said town known as the Schenectady"& Duanesburg, plank road, leading by and in front of the premises of John Flood, in said town, is encroached upon the northerly side thereof by the farm house, the property of the said John Flood, the extent of which encroachment is as follows, viz: The southerly side or front of said farm house is in on said highway to the following extent: All that piece of land south of a straight line passing through a point in the easterly side of said house eight and nine-tenths feet, (8 9-10) north of the southeasterly corner of said house, westerly to a point in the westerly side of said house two and two-tenths feet (2 2-10) north of the southwesterly corner of said house, is a part of said highway.

“This encroachment is arrived at by a survey which I have caused to be made of said highway, which survey shows that the northerly points and limits of said highway run through said building herein referred to, and along this said straight line herein described, and that all that piece of land which lies under said building south of the northerly bounds of said highway or straight line herein described is a part of the public highway aforesaid.

“ It is further ordered by said commissioner of highways of said town that the said building or house be removed so that said highway be open and unobstructed, and free from encroachment, and of the breadth which was originally intended, which was three rods, as appears by the description of said highway on record in the town clerk’s office in the town of Rotterdam, and the Schenectady county clerk’s office.

“ Dated July 13, 1891.

“Henry Van Worker,

‘ ‘ Commissioner. ’ ’

“ I have also caused stakes to be driven along the northerly bounds or limits of said highway along the encroachment herein referred to, which stakes if connected in the order in which driven by a straight line, marks the northerly bound or limit of said highway.

“Henry Van Worker,

Commissioner.”

The evidence discloses that after the service of this notice, and before the commencement of this action, the plaintiff had an interview with the defendant, in which he asked the defendant if he intended to remove the plaintiffs house when the sixty days were up, to which the defendant replied: “ First, I will collect the twenty-five dollars ($25) fine and then I will go on and move it.” The evidence also shows that the defendant has not removed or in any ,way attempted to remove the plaintiff’s said house, or in any way interfered with or damaged the plaintiff’s house or premises, except by service of the above notice and copy order.

The complaint alleges that the plaintiff feared and ‘had reason to believe that the defendant would remove his house in pursuance of said order under the statute without any legal proceeding to determine the question whether or not he at the time of said notice encroached upon the highway. The highway in question had been in existence and use as a highway for many years before 1849, as a public road leading from Schenectady westerly to. Duanesburgh, but there is no evidence that it had ever been laid out or recorded as a public highway, otherwise than by the records of the laying out of the Schenectady & Duanesburgh plank road; nor does it appear what the width of said highway was before said plank road was laid out, except along said plaintiff’s premises it had been divided by fences on either side of the same for more than forty years.

The plank road which occupied and adopted portions of the highway in question was constructed by a corporation duly formed gnd incorporated on the 4th of June, 1849, underand in pursuance of chapter 210 of the Laws of 1847, and entitled'an act to incorporate the Schenectady & Duanesburgh Plank Road Company, and for the construction of a plank road from the city to the valley of the Schoharie creek at a point in the division line of Schoharie and Schenectady counties.

The evidence also showed that the plank road company, on the 21st of February, 1849. applied to the board of supervisors of the county of Schenectady for authority to take the necessary land for the purpose of the construction of its road, in which application the route of -the proposed road was described as in the articles of association filed by the company, and upon such application the board of supervisors made an order of which the following is a copy:

“The said company having produced the necessary evidence that the notice required by said act had been duly given to authorize them to present such application, the said application having been heard and duly considered by said board, and they being of opinion that public interest will be promoted by the construction of the road by the route proposed and described in said application, it unanimously grants said application. Therefore, it is hereby ordered that the said Schenectady & Duanesburgh plank-road be and they are hereby authorized to construct such road upon the route specified in said application, and to take the real estate necessary to be used for that purpose.

It is further ordered that the clerk of the board furnish the said corporation with a copy of this order, certified by him for the purpose of being recorded.”

The board of supervisors also appointed three disinterested persons to lay out said plank road. ,

The evidence shows that said commissioners proceeded pursuant to the authority conferred upon them by the board of supervisors, and caused a survey and description to be made of the route of the plank road so laid out by them, and of the lands to be taken by the company for the construction of said road, and the actual survey made by the commissioners and filed pursuant to law was, as far as it.related to the location of the plank road over and along the land of the plaintiff, put in evidence on this trial; but the learned referee finds that it did not appear upon the trial of this action that the course and distance of the centre line of said road are correctly and accurately given in said order and survey.

The case shows, and the referee finds, that the lands of which the plaintiff’s premises are now a part abutted upon that part of the route of the plank road as laid out by said order and survey described in the seventeenth course of said survey, and appears to have been south forty-six degrees west, as the compass bearings then were, and the length of the course about seventeen chains.

The evidence discloses that the plank road company entered upon and took possession of the land in said survey about the year 1849 or 1850, and built a plank road on the same. The case does not disclose that any compensation was paid to the owner of these lands, which now belong to the plaintiff, by the plank road company.

About the year 1857 or 1858 the plank road and franchises were sold under a mortgage foreclosure, and the purchaser under such foreclosure continued to occupy the same as a plank road for a few months thereafter. He then abandoned all of said road except the easterly end of two miles, which extended along the premises in controversy. The two miles not abandoned were con-tinned to be occupied as a plank road by different owners and occupants down to about the close of the year 1889, when the two miles were also abandoned, and that portion of the plank road has since been used as a public highway in connection with the road, previously abandoned.

The proof shows, and the referee finds, that there has been no material change of the position or the location of the traveled part of the road along the premises in question, from the time it was first used as a highway or during the time it was used as a plank road down to the present time.

The proof also shows, and the referee finds, that when the plank road was first built, and from that time down to about the year 1887, there was along the north side and extending from the toll house easterly to a point on the east line-of the plaintiff’s premises, a bank of earth and sand "varying in height from ten to fourteen feet above the grade of the plank road, and that upon the top of, this 'bank, and running easterly in a straight line and narallel to-the traveled part of the road', was a fence extending from the toll house to a point east of the east line of plaintiff's premises. Such fence so long as it existed and so far as it extended was, and its line now is, the northerly boundary of that part of said road, or highway, as such boundary is and was fixed and located by the practical location of the fence of such northerly line or boundary.

The referee also finds, upon what appears to be sufficient proof, that the plaintiff’s house is not within the bounds of said highway as defined by said fence.

At the time the defendant made the survey upon which it is alleged the encroachment was established, the planks of the old plank road remained in position as they were when said plank road was constructed, and the southerly end of these planks were thirtj'-two feet distant from the plaintiff’s house, and the northerly end of said planks were twenty-four feet distant therefrom, and the fence on the southerly side of said highway, opposite plaintiff’s house, has remained substantially the same as when said order was made and in the same location which it now is for more than forty years.

Upon these facts the referee finds as conclusions of law, that this road was a public highway before the plank road was laid out or constructed, and that after that it continued such highway, subject to the control of the Plank Road Company, and that the control of the commissioners of highways was in subordination to •the rights acquired by that company.

That the surveying and laying out of the plank road on the line of the highway did not make it a surveyed or recorded highway ; but it remained a highway only to the extent that it had been used and occupied for that purpose; and that the use of its line by the plank road was a part of the evidence of uset, competent and material upon the question of the location and extent of the highway.

That as the highway had never been laid out, surveyed and recorded as such, it became a highway only to the extent of the public user, and as the plaintiff’s house did not stand within the Emits of the highway, so used by the public, as such, it was not an encroachment upon the highway as claimed in the notice and order of the commissioner, and any removal of the same by the commissioner would be a wrongful invasion of the plaintiff’s premises, and that the notice and order above recited, with the statement made by the defendant to the plaintiff, that he would first collect the fine and then remove the house, was a threat to do the plaintiff’s property an irreparable injury, for which the plaintiff would have no adequate remedy at law, and for which an injunction would lie.

We think the holding of the referee that this house did not encroach upon the highway is clearly sustained by the evidence. The plaintiff did not comply with the terms of the notice or order of the commissioner, and took no steps to remove the house as required therein, and the commissioner at the time of the commencement of this, action had not commenced an action to recover the penalty, nor had he taken any steps, except by the service of the notice and order, to remove the house as an alleged encroachment upon the highway.

The principal question, therefore, on this appeal is whether an equitable action for an injunction will lie under the circumstances of this case.

The general rule to be observed by parties in invoking the equitable powers of the court is that they must wait until their rights have been actually interfered with, before they can enjoin another from whom they anticipate injury. Guest v. The City of Brooklyn et al., 69 N. Y., 512.

To this rule, however, there are certain recognized exceptions.

First. When the proceedings in the subordinate tribunal will necessarily lead to a multiplicity of actions.

Second. When they lead in their execution to the commission of irreparable injury to the freehold.

Third. When the claim of the adverse party to the land is valid upon the face of the instrument or proceedings sought to be set aside, and extrinsic facts are necessary to be proved in order to establish the invalidity or illegality.’’ Heywood v. The City of Buffalo, 14 N. Y., 541.

We think this case comes clearly within, at least two of these exceptions. The notice and order served by the commissioner were under § 105 of the law of 1890, (chap. 568) which reads as follows:

Section 105. How removable, and liability for not removing. The commissioner of highways shall serve upon the occupant or owner of lands adjoining that part of the highway within their town in which any obstruction or encroachment may exist a notice specifying the extent and location of such obstruction or encroachment, and directing such occupant or owner to remove the same within a specified time not more than sixty days from the service of the notice.

u If such owner or occupant shall neglect or refuse to remove such obstruction or encroachment within such time he shall forfeit to the town the sum of twenty-five dollars ($25), and the commissioner may remove such obstruction or encroachment at the expense of the town, which may be recovered by action of such owner or occupant; or said commissioner may" bring an action in any court of competent jurisdiction to compel such owner or occupant to remove such obstruction or encroachment. Actions by commissioners' of highways, as in this section provided, shall be in the name of the town.”

It will be seen by a perusal of this section that the commissioner determines, in the first instance, whether or not an encroachment exists upon the highway, and upon such determination serves the required notice and order. The consequence of the disobedience of such an order subjects the person charged with the encroachment to the hazard of being prosecuted for the penalty, or of having the commissioner without further notice remove the encroachment, or of being prosecuted in an action in equity to compel this removal.

It is probably true that in an action for the penalty, which is an action at law, the party charged with the encroachment could interpose a common law defense, and thus try the question of the alleged encroachment; but if the commissioner saw fit to adopt the other method provided for in this section, and to summarily remove the encroachment, as he may do under this section, the party would be remediless, except such remedy as might be afforded in an action for trespass.

Such a remedy would not be an adequate one and afford adequate relief against the injury which might be inflicted in the demolition or removal of the plaintiff’s house. As this section affords no opportunity to arrest or prevent the destruction of the plaintiff’s property by the commissioner, no opportunity .exists to try the legal rights of the parties, or the truth of the charge of encroachment, until the prosecution and possibly effectual remedy of an action of trespass at law. We are clearly of the opinion that against such innovation of the rights of the citizen the court of equity may in a proper case, and we think in this, interpose by injunction; nor can the plaintiff be compelled to wait and seek his remedy in a court of equity after the injury has been actually inflicted.

The prima facie rights of the commissioner to remove being established by his order under this section, it would require some evidence on the part of the plaintiff to show that that right was improperly exercised in this case, and that the house which was charged to be an encroachment was not located within the bounds of the public highway.

This would bring this case within the third exception referred to in Heywood v. Buffalo, supra.

“'Where the claim of the adverse party to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, and extrinsic facts are necessary to be proved in order to establish the invalidity and illegality.”

There is another equitable principle which would seem to authorize the maintenance of this action for the protection of the plaintiff. As we have seen the order is prima facie evidence of the right of the commissioner to remove the obstruction, and that it would require some evidence on the part of the plaintiff to defend himself and his possession from the operation of that order. That,being so, the order being a matter of record in the office of the town clerk, and constructive notice to all, as far as this highway is concerned, of its extent and of this alleged encroachment, the order would operate, it seems to us, as a cloud upon the plaintiff’s title, which equity alone would have the power to remove. Scott v. Onderdonk. 14 N. Y., 9; Heywood v. Buffalo, supra; Ward v. Dewey, 16 N. Y., 519; Hatch v. City of Buffalo, 88 id., 276; Allen v. City of Buffalo, 39 id., 386; Croolce v. Andrews, 40 id., 549; Newell v. Wheeler, 48 id., 486.

We are therefore clearly of the opinion that for the reason, and within the authorities stated, this case is one proper for the equitable cognizance of this court

We think, therefore, the decision of the learned referee in this action was correct, and that the judgment must be affirmed.

Judgment affirmed, with costs.

Putnam, J.

I have entertained doubts as to whether the action can be maintained on the conditional threat of defendant to remove plaintiff’s building after he had collected the penalty of twenty-five dollars.

But I conclude that the very existence of the order declaring plaintiff’s house an encroachment on the highway constituted a threat justifying the action. If the house was an encroachment the duty devolved on defendant to remove it, and he could at any time, without a moment’s warning, proceed to do so.

Without considering the question as to whether the order constitutes a cloud on the title I think there should be an affirmance of the judgment.


text:
    Agnes Mickee, Adm’rx, App’lt, v. The Walter A. Wood Mowing & Reaping Machine Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

      1. Master and servant—Assumption of risk.
    The risk assumed by-the servant who undertakes a hazardous employment is such only as naturally arises out of the nature of the employment, and does not relievo the master from the obligation to furnish such reasonably safe place and tools as the nature of the employment may reasonably enable him to furnish.

      2. Same—Duty of master to furnish safe place to work.
    Plaintiffs intestate was employed by defendant to grade a railroad belonging to it, and was set at work by an unfinished building which defendant was erecting, A post ten inches square and ten feet long, which was set perpendicularly on. the plate of the third floor to support the fourth floor, fell and killed the intestate. Held, that this was not a risk incident to the work which intestate assumed, and that the question whether the place was such a one as was contemplated by the employment, and whether defendant could safely rely on the assertion that it had no reason to apprehend danger to deceased should have been submitted to the jury and a nonsuit was error.

      Appeal from a judgment entered upon the order of a trial court granting a nonsuit.

      Martin & Kelly (Olin A. Martin, of counsel), for app’lt; Hinsdill Parsons (George E. Greene, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff’s intestate was killed by the falling of a post which had been placed perpendicularly on end on a plate of a building of the defendant in process of construction. The plate on which the foot of the post stood was about thirty-five feet from the ground at the point when the accident occurred.

This post had stood there three or four days before it fell. The foot of this post stood on a level with the third floor of the building, which was partially laid, and the post which fell stood with several other posts, about twelve or fifteen feet distant from each other on the beam or plate on which the third floor was laid, on a line with the outside of the building, flush out with the side of the supporting timber, and the railroad track on which the plaintiff’s intestate was at work ran along that side of the building parallel with, and close to it. These posts were placed there to support the fourth story of the building, and the evidence does-not disclose how they were secured or fastened in that position.

They were of spruce timber, ten inches square and about ten feet long. The building from which this timber fell was a new wood building in process of construction and was sided up to the =timbers on which the foot of this post rested.

There seems to be no dispute but that plaintiff’s intestate was killed by the falling of this post, which fell upon him at the place at which he was directed to work, and while engaged in the service of the defendant, and the building and the railroad were the defendant’s property, and being constructed by it.

Intestate was not working on the building. The plaintiff was non-suited on her own proof, no evidence having been given by the defendant, and the principal question raised on this appeal is as to whether or not the defendant furnished a reasonably safe place for plaintiff’s intestate to work, or whether under the evidence in this case that question should not have been submitted to the jury as one of fact.

It is urged on the part of the respondent, as the condition of the building in process of construction was equally open to the observation of the intestate and the defendant, he was equally negligent with the defendant in not avoiding the danger if the place in which he worked was a dangerous one.

But the difficulty with that contention is that the evidence shows that the deceased did not work on the building, and fails to show that he had any knowledge of its condition, or of any fact to put him on inquiry as to safety of the place in which he was required to work, while it was the absolute legal duty of the defendant to see to it that it was a reasonably safé place.

In George Levy v. Frank Hall et al., cited by the respondent, it was held that it is the duty of the master to use proper care and prudence in the selection of the place and appliances used by his. servants in the discharge of the duties of his employment. Such duty is imposed by law, and implied against him by the contract with the servant. The servant has a right to shape his conduct, and act in reliance upon the protection and security which the proper discharge of the legal duties and obligations of the master will afford.

It is true that the servant who undertakes the performance of hazardous duties assumes the risk naturally and necessarily incident to such employment. Evans v. Lake Shore & Michigan Southern R. Co., 12 Hun 289.

But that risk must be such only as naturally arises out of the nature of the employment, and does not relieve the master from the obligation to furnish such reasonably safe place and tools as the nature of the employment may reasonably enable the master to furnish.

It is also true that if the servant has accepted the service with knowledge of the character and position of the structure from which he may be liable to injury, he cannot maintain an action against his employer for indemnity for such injury if it happen, De Forest v. Jewett, 88 N. Y., 264.

We have examined all the cases cited by the learned counsel for the respondent, and find none that relieves the employer from the well settled rule that requires him to furnish a reasonably safe place, considering the nature of the employment, for the performance of the work by the employed.

But it is insisted by the counsel for the defendant that the respondent had no reason to apprehend danger of the happening of the event which produced the injury to the deceased, and we are referred to the case of Haskins v. Stewart, 32 St. Rep., 962, and several other cases of a kindred character upon that branch of the case. We are inclined to the opinion that whether or not the place was of the character from which the employer might be presumed to assume it was free from danger not incident to the ordinary employment of the deceased, was one that should have been submitted to the jury for their determination, and that it was error to dispose of that question, under the circumstances of this case, as one of law.

It needed no evidence to show that a stick set up on end of the dimensions of the one by which the injury was inflicted, unless the same was well guyed and secured, was liable to fall. With that fact in the case we think it was for the jury to say whether the place was such a one as was contemplated by the employment, and whether the defendant could safely rely upon the assertion that it had no reason to apprehend danger to the deceased.

The risk in this case was not the ordinary risk incident to grading on a railroad, and not, therefore, the risk which the decedent naturally assumed when engaging in that employment. The hazard was increased by the proximity to the unfinished building of the defendant which it was constructing, and we are of the opinion that the question of increased hazard was a proper question for the jury. Kranz v. The Long Island R. R. Co., 33 St. Rep., 46; Cullen v. Norton, 36 id., 362.

The case presents a different question from that of Racine v. R. R., decided at this term.

Judgment should be reversed and a new trial ordered, costs to abide tire event,

Putnam and Herrick, JJ., concur.


author: Van Wyck, J.

text:
    The Mechanics & Traders’ Bank, Resp’t., v. Frederick Livingston et al, App’lts.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Bills and notes—Accommodation paper—Pledge—Evidence.
    In an action upon a note which was pledged with others by the payee as collateral for a loan, where it is admitted that the amount of such loan has been collected from the other collateral, it is error to refuse to allow defendants to show that they were accommodation makers, as a pledgee has no cause of action against the accommodation maker if the debt for which accommodation paper was pledged has been paid in full.
    Appeal by defendants from judgment against them, entered on a verdict directed for the bank, and from the order denying motion for new trial.

      Charles Strauss, for resp’t; Geo. F. Martens, for app’lts.
   Van Wyck, J.

The action is by the bank on a promissory note made by defendants to the order of Haas & Pohalski, and by them indorsed and delivered to the bank. The alleged defense of defendants, the makers, is that the note was given to Haas & Pohalski for their accommodation and without consideration, and that Haas & Pohalski delivered this note, together with twenty-six other promissory notes, aggregating with this one $6,024.77, to the bank as collateral security for the páyment of a note for $3,000- made by them to order of, and delivered to the bank at the same time for full Value, and that this $3,000 note has been fully paid by collection by the bank of over $3,000 on the other twenty-six notes, given as security as aforesaid. The record shows that the uncontradicted testimony of defendants’ witness Byttenberg is that “ At the time the bank made the loan of $3,000 there was a list of notes which were given as collateral for this loan. I took the notes contained in this list along with me, with the $3,000 demand notes, to the bank. I gave $3,000 as a demand note to the bank, subject to the bank’s order.

The other notes mentioned in the list, there were about twenty-six of them, were not discounted, and were given as collateral security for the $3,000 loan,-made by the bank to Haas & Pohalski on the demand note.” As this witness was proving payment of the other twenty-six collateral notes, the plaintiff admitted as follows: “Plaintiff admits that about $3,000 of those collateral notes have been paid,” and thereupon the list of these twenty-seven notes, including the one in suit, was marked in evidence. Defendant’s exhibit 1. This uncontradicted proof made out a complete defense under the law of this state, provided that the defendants were accommodation makers of the note sued upon. Continental Bank v. Bell, 125 N. Y., 38; 34 St. Rep., 481, in which Judge Andrews writing says : “Assuming that there was no wrongful diversion of the note by Crosby, nevertheless, the bank cannot enforce it against the accommodation maker for any amount beyond that for which it was pledged, nor for a debt for which it was not pledged.” If the debt for which accommodation paper was pledged has been paid in full, the pledgee has no cause of action against the accommodation maker thereof. Upon the trial o£ this cause the defendants were denied the privilege of proving that they were accommodation makers of the note sued upon, and the record shows that they made proper effort to do so, and duly excepted. liad they made such proof, then the verdict should have been directed for the defendants. Hence the direction of a verdict in favor of the plaintiff was error, and the judgment and order appealed from must be reversed, with costs to appellant to abide the event, and new trial ordered. McGown and Fitzsimons, JJ., concur.


text:
    The Mechanics & Traders’ Bank, Resp’t, v. Frederick Livingston et al., App'lts,

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Bills and notes—Accommodation paper—Pledqe—Evidence.
    In an action on a note delivered as collateral security with others to plaintiff by the payee, the evidence was conflicting as to whether such pledge was made for the amount of a note or as security for the payee’s account in general and for overdrafts, the amount of the note having been collected from the other collateral. The court charged the jury that if it was made as security for the note plaintiff could not recover, and that the burden of proving that it was made as security for future indebtedness was on plaintiff. Held, that by returning a verdict for plaintiff the jury found that the pledge was made for future indebiedness, and hence the exclusion of evidence that defendants were merely accommodation makers was not fatal error, as in that case defendants would be liable although accommodation makers.
    Appeal by defendants from a judgment entered on a verdict returned by jury against them, and from the order denying new trial.

      Charles Strauss, for resp't; Geo. F. Martens, for app’lts.
   Van Wyck, J.

The plaintiff bank sues "upon a promissory note made by defendants to order of Haas & Polialski, and by them indorsed and delivered to the bank. The defendants allege by way of defense, that they were accommodation makers of the note; that the payees delivered it, together with twenty-six other notes, to tliq bank as collateral security for the payment of a note for $3,000 which such payees, at that time, made and delivered to the bank for value, and that the bank has collected $3,000 of such collateral twenty-six notes, and hence has been paid said $3,000 note in full. The proof on trial as to the conditions under which the note in suit and the other twenty-six notes were delivered to the bank by Haas & Polialski was conflicting. The plaintiff bank contending by evidence that these notes were delivered by Haas & Polialski and left with it as collateral security for their account in general, and for any overdrafts they might make, and that they continued to make overdrafts every day up to the time of their failure, and that at the time of their failure they owed the bank about $10,000, and still .owe it about $6,000; On the other hand, the defendants’ evidence shows that the note in suit and the other twenty-six notes were delivered to the bank specifically as collateral security for the payment of the $3,000 note, and that such note has been fully paid. The determination of these disputed questions of fact were properly left to the jury, under a careful charge by the court, to no part of which either side excepted, and by which the jury were told that, “ If you believe that those notes, the one in suit included, were given as collateral security for the note of $3,000, then plaintiff cannot recover.”

This was an instruction to the jury that defendants could not be held liable on the note in suit if it, with the others, had been delivered to the bank as security for the $3,000 note even though the defendants had made and delivered it to Haas & Pohalski for full value received, because it was in proof that the bank had collected more than $3,000 on the other twenty-six notes. Hence it was not fatal error to exclude the proof offered by defendants, that they were accommodation makers of the note in suit. And, moreover, the court instructed the jury, as requested by defendants’ counsel, “That the burden of proof that the note was given for the future indebtedness of Haas & Pohalski to the bank was upon the plaintiff,” and that “ They must establish by a fair preponderance of evidence that the note was given as collateral for future indebtedness, and that unless they do, the defendant is entitled to a verdict.” By returning a verdict for plaintiff under these instructions, they found that the note in suit was given to the bank as collateral security, not for the $3.000 note', but for the future indebtedness of Haas & Pohalski to the bank, and so finding, the defendants would be liable although they were accommodation makers. The judgment and order appealed from are affirmed, with costs.

McGown and Fitzsimons, JJ., concur.


author: McGrown, J.

text:
    Henry C. Bicknell, Resp’t, v. Gilbert M. Spier, Rec’r, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    Money loaned—Amount advanced to coepobation.
    The complaint herein set forth an agreement between the plaintiff’s assignor and the corporation of which defendant is receiver, by which the' former was to loan and advance to the corporation the sum of $8,750, to be used as working capital, and alleged that said assignor advanced $1,500 in cash and his note for $3,250, which was accepted as a compliance. The answer denied the agreement alleged, ar.d averred an agreement between the corporation and said assignor and three others by which $15,000 was to be raised as working capital by them equally; denied performance by said assignor and set up a counterclaim for overpayment for services. On the trial plaintiff introduced in evidence an agreement as alleged by him, while defendant gave no proof of the one alleged in the answer. The court rendered judgment for the $1,500, with interest, less the over-payments for services. Held, no error.
    Appeal from a judgment entered on the 14tli day of January, 1892, in favor of the plaintiff, for the sum of one thousand six ¡hundred and sixty-one dollars and, seventy-six cents ($1,661.76) upon the decision of the trial justice, a jury trial having been waived.

      Bullard & Shannon, for resp’t; J. C. O' Connor (S. B. Brownell, of counsel), for app’lt.
   McGrown, J.

The plaintiff herein, the assignee of one Clinton ¡E. Jackson, in his complaint alleges that on or about April 4, 1890, an agreement in writing under seal was duly executed between the Vertical Tube Boiler Company, the defendant herein, of the first part, and one Clinton E. Jackson, of the second part, whereby among other things it was agreed that the said Jackson would loan and advance to the defendant the sum of three thousand seven hundred and fifty dollars ($8,750) to be used as working capital in the business of the defendant, etc.

That in pursuance of said agreement the said Jackson, about April 4, 1890, loaned and advanced to said defendant the sum of one thousand and five hundred dollars ($1,500) in cash, and also his negotiable promissory note for two thousand two hundred and fifty dollars ($2,250), which was accepted as a compliance with the requirement of said contract in that regard.

Also alleges assignment of said Jackson’s claim, and demands judgment for the sum of one thousand five hundred dollars ($1,500) and interest.

By an order made herein on the 7th day of July, 1891, Gilbert M. Spier, Jr., the receiver of the said Vertical Tube Boiler Company, was substituted in the place and stead of the said Vertical Tube Boiler Company.

The defendant Spier, Jr., as receiver, in his answer denies that the agreement between said Clinton E. Jackson and the Vertical Tube Boiler Company is in the complaint correctly stated, and avers and sets up an agreement made on the 4th day of April, 1890, between the said boiler company and Edward P. Steers, Richard Webber, Thomas Crawford and the said Clinton E. Jackson, whereby the said Steers, Webber, Crawford and Jackson agreed that they would pay into the treasury of said boiler company, for the purpose of working the said company, the sum of fifteen thousand ($15,000) -dollars, which said sum was to be equally divided between them, that is to say, each and every one of them ymuld pay to the said company the sum of three thousand seven hundred and fifty ($3,750) dollars, to be used as working capital for said company.

That said Jackson has failed to comply with his agreement.

Inasmuch as no claim is made herein by the plaintiff for services rendered by the said Jackson, as manager of the Vertical Tube Boiler Company, he only claiming to recover for money loaned by the said Jackson, it is unnecessary to consider, for the purpose of this appeal, any such claim, or the evidence therein, introduced upon the trial, except so far, only, as may apply to the counterclaim set up in defendant’s answer.

The plaintiff offered in evidence a paper, which defendant’s counsel admitted was executed by the defendant corporation, and the same was admitted. (Plaintiff’s Exhibit ¡No. 1.)

By-the terms of the agreement (Plaintiffs’ Exhibit No. 1), made by and between the Vertical Tube Boiler Company, party of the-first part, and Clinton E. Jackson, party of the second part:

“ First. The party of the first part agreed to raise and place in its treasury the sum of fifteen thousand dollars ($15,000) in cash,, of which sum the jDarty of the second part agrees to forthwith loan and advance to the party of the first part the sum of three thousand seven hundred and fifty dollars ($3,750), which total sum of fifteen thousand dollars ($15,000) is to be used as working capital to carry out the purposes and terms of this agreement."

, An assignment of the claim of said Jackson to the plaintiff herein was also received and admitted in evidence.

No evidence' was offered by defendant, of the agreement set forth in defendant’s answer, and the trial justice upon the evidence herein found among other facts:

That said Jackson had loaned and advanced to said defendant corporation, with accrued interest thereon, the sum of one thousand five hundred and fifteen dollars ($1,515).

That said Jackson had received, over and above the amount due him for liis services as manager for defendant, the sum of one-hundred and fifty thirty-nine-one-hundredth dollars ($150.39).

That said sum of one thousand five hundred and fifteen dollars, with interest to October 7, 1890, amounted to the sum of one thousand live hundred and sixty forty-five-one-hundredth dollars, and that after deducting the said sum of $150.39, being the amount received by said Jackson over and above the amount due him for his services as manager, there was a balance of one thousand four and ten six-one-hundredth (1,410.06) dollars due said Jackson, which, with interest thereon to the date of trial amounted to the sum of $1,505.15.

And found as a conclusión of law, that plaintiff is entitled to recover of the defendant in this action, as such receiver, the sum of one thousand five .hundred and five dollars and fifteen, hundredths ($1,505.15), with costs.”

Judgment was thereupon, and on the 14th day of January, 1892, entered for said amount of $1,505.15, with $156.61 costs,, amounting in all to the sum of one thousand six hundred and sixty-one dollars and seventj^-six hundredths, ($1,661.76).

We find no error on the part of the trial justice, and no merits: in the exceptions taken by defendant's attorneys to the rulings of the trial justice on the admission of evidence, or to the findings of fact or conclusions of law, and the1 judgment appealed from must be affirmed, with costs to the respondent.

Van Wyck and Fitzsimons, JJ., concur.


text:
    Francesco Romano et al., Resp’ts, v. Francis Irsch, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    1. Charterpaiity—Liability of consignee for freight.
    Certain freight was carried.by plaintiffs’ barque consigned to-defendant., who sold the same and directed its delivery, and stated an account of the freight to the vessel’s agent and thereafter promised in. writing to pay the same as soon as the proper person appeared who could show he was the legal receiver of the freight for said vessel. Held, that plaintiffs, on showing that they were entitled to receive freight for said vessel, were entitled to recover.
    2. Same—Evidence.
    Defendant set up a counterclaim based on a breach of the charter-party. Held, that the admission of the charterparty in evidence was not prejudicial to him, as without it he would not be entitled to go to the jury on his counterclaim, and plaintiffs would have.been entitled to a direction in their favor.
    Appeal by defendant from judgment entered against him on verdict of jury, and from order denying new trial.

      Convers & Kirlin, for resp’ts; John Mulholland, for app’lt.
   Van Wyck, J.

The plaintiffs’ alleged cause of action is that they are owners of the barque “ Giulio R.,” that the defendant is indebted to the plaintiffs on an account for work, labor and services of the plaintiffs and their servants, in carrying in their barque, “ Giulio R,” from the port of Rosario, Argentine Republic, South America, to the port of Philadelphia, Pennsylvania, a cargo of bones, which were consigned to the defendant, and by the plaintiffs’ servants delivered to him, and by liim accepted on or before February 23, 1889, in the sum of two hundred and ten dollars and forty-three cents ($210.43) and interest thereon from the said 23rd day of February, 1889, according to the account annexed hereto and marked exhibit “A,” and that no part of the said balance of two hundred and ten dollars and forty-three cents has been paid.

The exhibit “A” annexed to the complaint is an account stated. by the defendant to T. Romana, of the bark “ Giulio R,” and shows that defendant is indebted for $210.45, the balance due for the freight of the cargo of bones mentioned in the complaint. This account is marked exhibit “ B ” in the case, and is shown to have been made and sent by defendant to the agent of the owners of the vessel. Months thereafter defendant writes that he “ will pay over the amount,” and again one year after he stated the account lie writes “ as soon as the proper person appears who can show that he is the legal receiver of freight for “ Giulio R” it will be paid promptly." See exhibits “0” and “D,” which are proven to be in the handwriting of the defendant. The plaintiffs prove that they are the proper persons to receive this balance of freight admittedly owing by defendant Moreover, the defendant assumed full control of this cargo of bones and sold it to Baugh & Sons Co., and directed its delivery to them from the vessel. The defendant’s counterclaim is specifically based upon the charter party, which lie now claims should not have been marked in evidence by the plaintiffs, and it was his counsel who objected to this question:

“ Q. To whom was the cargo consigned ? ”

-Defendant’s counsel: “The contract in writing will be the best evidence.”

Plaintiff’s counsel: “I ask the defendant to produce the charter-party.” And he produced it and it was then put in evidence. Eliminate this cbarterparty from the case, and then defendant would not have been entitled to go to the jury on any part of his ■counterclaim, for his entire counterclaim is, by the sixth paragraph of the answer, made dependent upon an alleged breach of the •charterparty, and the plaintiffs then should have had a direction in their favor. Mpreover, it is questionable whether the defendant should have had his counterclaim submitted to the jury at-all; however, it was so submitted, and the jury very properly returned .a verdict for the plaintiffs for the full amount claimed.

Judgment and order affirmed, with costs.

Fitzsimons, J., concurs.


text:
    John A. Snell et al., Resp’ts, v. James Rogers et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    ■Contract—Statute op frauds.
    Defendants’ firm, as contractors for building a portion of a railroad, entered into a written contract with one Lally to do said work. Plaintiff,
    . with his teams and men, worked for Lally for some time by the day, and agreed with Daily’s agent to make a written contract for grading and excavating a place known as Cooney Creek, at an agreed price per cubic yard. The contract was not signed by the parties, but plaintiff went on and completed the work at Cooney Creek. While the plaintiff was at work at that place one of the defendants told him to go on and complete the-work and defendants would pay for the labor. Held, that this constituted an original undertaking by the defendant to pay plaintiff for the work thereafter .performed, and was not within the statute of frauds.
    Appeal from a judgment entered in favor of the plaintiffs upon :the report of a referee.

      Kellas & Munsill (John P. Kellas, of counsel), for app’lts; Badger & Ide (John P. Badger, of counsel), for resp'ts.
   Mayham, P. J.

The complaint in this action alleges that the defendants are indebted to them in the sum therein specified for work, labor and service done and performed by plaintiffs, their agent, servant and teams for the defendants and at their request.

The answer is a denial of the principal allegation in the complaint ; an allegation that the work was performed for a person other than the defendants, and that any alleged agreement by the defendants to pay plaintiffs for the same, was a parol collateral promise to answer for the debt of another and void by the statute of frauds.

The case shows that the defendants as partners were contractors for the building of that portion of the St. Lawrence & Adiron■daclc. railroad as lies between the village of Malone and the northerly line of Franklin county.

That as such contractors they entered into a contract with one Martin T. Lally to perform the work required by their contract on a portion of the line of said railroad.

That contract was in writing specifying the duties and obligations of the respective parties. The plaintiff with his hands and teams worked for Lally, for some time by the day, on this contract, and about, the 26th of August, 1891, contracted with Lally through one Livingston, his agent, who was empowered hy Lally make such contract for grading and excavating at a place known as Cooney creek, at an agreed price per cubic yard, with an understanding that the agreement was to be reduced to writing and presented for execution at a designated day in the future, and in the meantime plaintiff with his hands and teams were to, and did, commence excavating and grading at that point.

A contract was afterwards prepared and presented for signature, but was not executed for the reason assigned by the plaintiff that it was not in accordance with the parol understanding between Lally through his agent, and the plaintiff Livingston, the agent of Lally, swears that plaintiff’s son said when the contract was presented that he would continue the work by the day until the contract was perfected and signed and the referee finds that Livingston assented to that proposition. That contract was not signed by the parries, but the plaintiff went on and completed the work in the Cooney Creek cut' and fill.

While the plaintiff was at work in that cut a conversation occurred between the plaintiff and the defendant, Farquher, at which, as the plaintiff testifies, the defendant, Farquher, told plaintiff to go on and complete this work and they, the defendants, would pay them for their labor. This Farquher denies, but the referee finds that there was such an agreement. Whether there was or was not, such an agreement is purely a question of fact, and while it is parol this court from the printed record might have reached a different conclusion if it were an original question, we do not feel authorized on this appeal to revise the findings of fact of the referee, as there is sufficient evidence to sustain this finding, especially as the referee enjoyed the advantage of seeing the witnesses and hearing their evidence as given upon the witness stand; an advantage which the appellate court does not possess, and one which is always important in determining disputed questions of fact

Assuming, therefore, as we must, that the defendants made this .agreement, and that the work performed by the plaintiffs after it was made was done under it, and in reliance upon the defendants’ promise to pay for it, the contention of the defendants that it was a parol collateral agreement by the defendant to pay the debt of Lally cannot be sustained, but it became an original undertaking by the defendants to pay the plaintiffs for the work thereafter performed and is not, therefore, within the statute of frauds, especially as the contract between Lally and the plaintiffs was never signed, or executed, and the referee finds upon sufficient evidence that until the contract was signed the plaintiffs’ work was by the day ; and as the work to be performed was for the benefit of the"defendants on their job, the agreement to pay for it by the defendants was supported by a sufficient consideration. Bayles v. Wallace, 32 St. Rep., 3-41-2; Gallagher v. Nichols, 60 N. Y., 445; Quintard v. De Wolf, 34 Barb., 97. But it is insisted that the contract to cut and fell at Cooney Creek by the yard wits a binding agreement between Lally and the plaintiff, and that the alleged change to a contract by the day with Livingston was unauthorized and, therefore, inoperative to bind the defendant.

But the plaintiff at the time of the alleged agreement with Farquher was at work on this job by the day, as the written contract had not been signed, and if, as we have seen, that was a valid agreement, we do not see how the question of Livingston’s authority can affect the question of the defendants’ liability to ¡Day for the work done under it.

We have examined the objections and exceptions taken by the appellant to the receipt and rejection of evidence, and find no-error affecting the result in this case, and as the question upon which the case turns are largely questions of fact and the findings and conclusions -supported by the evidence, the judgment, must, on this appeal, be upheld.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


author: Putnam, J.

text:
    Arthur W. Shultes, App’lt, v. Nicholas A. Sickles, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. E-jectment—Execution by leave of court.
    An execution by leave- of the court may be issued on a judgment of ejectment for non payment of rent at any time, even after the lapse of twenty years from the rendition thereof.
    2. Same—Attornment.
    The lessor, VanR., obtained judgment of ejectment for non-payment of -rent in 1864 against John Sickles, then in possession. In 1883 Church, the assignee of said judgment, obtained an order to issue execution and he was put in possession, and John and Nicholas A. Sickles, then in possession, executed a paper acknowledging that they held the same as tenants at will of Church, and the la: ter executed a deed to defendant. Held, that such attornment was not in violation of the provisions of the statute, as ihe judgment was obtained in pursuance of the provisions of the durable lease under which plaintiff claimed title, and its effect was to terminate the lease, and furthermore Church had absolute title as the time for redemption had elapsed.
    3. Same.
    In January, 1885, Church gave Shultes a release “ for all rents which have accrued on 126 acres of land owned by him, which lease was given,” etc. Held, that this was not intended as a release or conveyance of Church’s interest in the farm, as he conveyed said premises to defendant the same day, and the instrument was not under seal, but was merely intended as a release for rents accrued.
    4. Same.
    In October, 1883, Church made to one Joseph J. Shultes an offer of release of the lands for a certain sum, and again in November. 1884, offered to settle the arrears of rent if the judgment of Nicholas Sickles against Shultes, and assigned to Church, was paid. Held, that the rights of the parties were not affected by the two offers by Church, as Shultes did not act on the offers.
    Appeal irom judgment in favor pf defendant, entered upon verdict directed by the court.
    W. & G. W. Youmans (W. Youmans, of counsel), for app’lt; Stedman, Thompson & Andrews (G. L. Stedman, of counsel), for resp’t.
   Putnam, J.

This is an appeal from a judgment entered in Albany county on October 27, 1892, upon a verdict for the defendant directed by the trial court. The action was ejectment Both parties derived title under the lease executed by Stephen yan Eensselaer to Johannes Shafer, dated May 29, 1797, reserving an annual rent.

Under said lease the lessor, Yan Eensselaer, obtained judgment ■of ejectment for non-payment of rent on April 28, 1864, against John Sickles, then in possession .of the premises in question. The rights of Yan Rensselaer in said judgment and premises were duly transferred to Walter S. Church prior to January, 1883. The latter on June 19, 1883, obtained an order of the special term giving leave to him, as assignee of the judgment, to issue execution thereon, the order reciting that it was granted on the affidavit of Walter S. Church, and on proof of the due service of said affidavit and notice of motion. Execution was issued, and the return of the sheriff indorsed thereon shows that Church was put in possession of said property on July 27, 1883. On that day John Sickles, the defendant in the action, and Midiólas A. Sickles, who were in possession of said premises at the time, executed a paper whereby they surrendered the possession thereof to Church, and acknowledged that they held the same as tenants at will under him. Church afterwards executed a deed of the land to defendant

If the proceedings of Church under the judgment of ejectment were regular and authorized, it is clear that defendant, as assignee of the landlord's interest in said lease, has a title to the farm in question under the judgment of re-entry superior to that of the plaintiff, who claims title under the lessee named in said durable lease.

When the order of June 19, 1883, allowing the issuing of the writ of possession or execution, was offered in evidence, the only objection made by plaintiff to its reception was that the statute provides that no writ shall be issued to revive a judgment after ten years from the time of filing the judgment roll, and the court had no power to issue the writ. This objection was not well taken. Van Rensselaer v. Wright, 121 N. Y., 626; 31 St. Rep., 897. An execution by leave of the court may be issued on such a judgment at any time, even after the lapse of twenty years from the rendition thereof.

It is suggested by plaintiff that the notice of motion should have been served on Shultes, the plaintiff. But no such objection was made on the trial. Perhaps if then made it could have been obviated. Again, the statute only requires notice to be served on the defendant in the action. Therefore, it was not necessary to serve on Shultes. Civil Code, § 1378.

In the action of ejectment for non-payment of rent brought by Yan Rensselaer, John Sickles, the party in possession of the demised premises, was properly made a defendant. It was not necessary to name Shultes as a party to the action, and the judgment against Sickles, while not conclusive against Shultes as to the averments of the complaint, yet, as it was obtained against the person in possession of the farm, it enabled Church and his grantee to defend his title and possession against plaintiff. Bradt v. Church et al., 110 N. Y., 537; 18 St. Rep., 551.

The plaintiff proved by the certificate of the sheriff that lie-delivered possession of said property to Church on July 27, 1883, and also read in evidence a written attornment made by John Sickles, the defendant in the action, and Nicholas A. Sickles, who were then in possession of said premises. The judgment having been obtained in pursuance of the provisions of. the durable lease under which plaintiff claims title to said premises-as lessee, and the effect of the judgment being to terminate the-lease, Van Rensselaer v. Wright, supra, we think the attornment was not in violation of the provisions of the statute. See Wit-beck v. Van Rensselaer et al., 64 N. Y., 32; Newell v. Whigham et al., 102 N. Y., 20; 1 St. Rep., 666.

Under the execution Church having been put in possession of the premises on July 27, 1883, the writ and return thereon were filed in the county clerk’s office on August 4, 1883. After the lapse of six months from the time the landlord was so put in possession under said judgment, viz., on January 27, 1884, his-title to the property became absolute. The lease then, if not before, was terminated. Church then became the owner of the property, the rights of the tenants therein being extinguished the same as if said lease had never been executed.

But it is claimed by the plaintiff that Church released to the plaintiff his right to said premises derived under the aforesaid judgment and the execution issued thereon.

The release executed by Church to Shultes on January 12, 1885, does not appear to be intended as a release or conveyance of liis interest in said farm, of which the former had become the absolute owner. It was apparently not so intended, for on the same day Church conveyed said premises to the defendant. Again, Church having absolute title and the time for redemption having expired could only convey to plaintiff the premises in question by an instrument under seal. Again, the paper in question does not purport to be a release by him of his right derived under the aforesaid judgment on a redemption by the tenant. It is apparently intended to be a mere release to Shultes from liability for rents that had accrued upon the lease.

We are unable to see that the rights of the parties are at all affected by the two offers made by Church to plaintiff. The first offer, dated in October, 1893, recited the recovery of the judgment in favor of Yan Rensselaer against John Sickles and that. Church, in July 27, 1883, had duly taken possession of the premises and offered, within the time prescribed by statute for redemption, to receive from Shultes, who, the notice stated, claimed some interest in said land, $300 as his proportion of the rents, and on payment of said sum to release the judgment. There is no evidence whatever that Shultes accepted the proposition or complied with the terms of the offer, or ever paid the $300. The second offer, dated November 12,. 1884, as far as pertinent to the question under consideration, contains an agreement on the part of Church that on the payment of the judgment, for $1,500 obtained by Nicholas Sickles against Joseph I. Shultes, which was assigned to Church on or before April 1, 1885, to release Shultes from “ arrears of rents and reservations and soil on the land and premises known as the Sickles farm.” The offer provided that notice should be given of acceptance by said Shultes within five days from date. It was not shown that Shultes ever gave such notice or acted upon the offer.

We think the learned trial judge took the correct view of this case and that the judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.