author: GAYNOR, J.

text:
    Edward C. Murphy, P’lff, v. William Schnitzpan et al. Def’ts.

      (Supreme Court, Kings Special Term,

      Filed January 5, 1896.)

    Justices of the peace—Abridging teem of office.
    Justices of the peace of the city of Brooklyn are “justices of inferior local courts,” within the provisions of § 3, article 13 of Constitution of 1895.
    Action by Edward 0. Murphy against William Schnitzpan and others to restrain defendants from interfering with plaintiff’s exercise of the office of justice'of the peace in the city of Brooklyn, plaintiff claiming that his term had not expired.
    James Troy, M. L. Towns, and J. A. Wernberg, for pl’ff; Horace Graves and Jacob Brenner, for def’ts.
   GAYNOR, J.

—By statute, the city of Brooklyn is divided into judicial districts, with the requirement that a justice of the peace be elected in each district. They are given the same jurisdiction within the city that justices of the peace of towns have. Laws 1850, c. 102: Brooklyn Charter, tit. 21. The term of office is four years, beginning and ending at May 1st. The plaintiff was elected for the Third district at the general election in 1892, for a term to end at May 1, 1896. Four months of the term therefore, remain. The defendant Schnitzpan was elected to succeed him at the last general election. The new state constitution adopted in 1894 separated city elections (except in cities of a population below 50,000) from national and state elections, by requiring them to be held in odd-numered years. In order to conform terms of office to this system, it provided that all terms existing on January 1, 1895, which would expire thereafter in an even-numbered year, and not at the end thereof, were abridged so. as to expire at the end of the preceding year. Article 12, § 3. This fits the plaintiff’s case, and his term, thus abridged, expired with the year 1895, unless the proviso at the end of the section excepts the office of justice of peace in Brooklyn; and this brings us to the exact point of the controversy. That proviso is that the section does not apply “ to ,elections of any judicial officer, except judges and justices of inferior local courts.” The plaintiff insists that, within the meaning of this language as used in the constitution, he was not a justice of an inferior local court. He basis this insistence upon the assertion that courts of justices of the peace of towns never came under that designation, and that, therefore, like courts in cities do not. It seems to me that this claim grows out of the error of supposing that this nomenclature in respect to minor courts was new to the constitution of this state. Under the colonial government, all judicial officers, beginning with justices of the peace, and going up to justices of supreme court, were .appointed, not elected; and this method continued under the state government until the constitution of 1846 went into effect Street, Council Revision, pp. 22-69. The ordinance of 1691, establishing the colonial judicial system, names all the judicial officers in this scale, beginning the justices of the peace. Who doubt that, in contradistinction to the courts of general jurisdiction which it established, courts of justices of the peace were on appropriate occasion designated as “inferior” and “local ? ” for they were both in fact. This designation of courts, viz., high courts, courts of general jurisdiction, inferior courts, local courts, and special courts, is natural and obvious, and of ancient use. Bac. Abr. “Courts ;” 3 Bl. Comm. c. 4. The first state constitution, viz. that of 1777» left the colonial judicial system as it was. The next constitution, that of 1821, still left all judicial officers appointive. In 1826 a constitutional amendment was adopted which provided for the election of justices of the peace in towns. This was the first time in eolony or state that any judicial office was elective. In the next constitution, viz. that of 1846, a substantially new judicial system was established, and all judicial offices fixed thereby were made elective; and this is the first of our constitutions which used the nomenclature now under consideration. After providing for the election of judges, from those of the court of appeals down to justices of the peace in towns, and prescribing their terms of office, it further provided as follows : “ Inferior local courts of civil and criminal jurisdiction may be established by the legislature in cities.” Article 6, § 14. The people of the state, having by this constitution taken unto themselves the establishing of courts, and required that all the judicial officers specifically named therein, including justices of the peace of towns, should be elected, expressed their permission to the legislature to establish “ inferior local courts in cities,” prescribing no restriction in respect of whether they should be elective or not. They established inferior local courts in the towns, viz. courts of justices of the peace, and left the legislature to provide inferior local courts for cities. Surely, no one thought this reference to inferior local courts for cities would thereafter exclude courts of justices of the peace from that designation, either in ordinary speech or in constitutional interpretation. In the amendment of the judiciary article of the constitution adopted in 1869 (article 6, § 19), the said provision for the establishing of inferior local courts by the legislature in cities was amended by dropping the word “cities,” thus leaving it general, and it was incorporated in the same words in the present constitution (article 6, § 18).

There seems to me to be no foundation, either in the ordinary use of words, or in the terminology and nomenclature our successive constitutions, for the claim that courts of justices of the peace, either in towns, villages, or cities, do not come under the designation of inferior local courts.” They are such in fact; and those of the city of Brooklyn seem to have been judicially recognized as such within the meaning of the words as used in the constitution, though the precise point was not raised. Geraty v. Reid, 78 N. Y. 64; People ex rel. Sinkler v. Terry, 108 Id. 10; 12 St. Rep. 773. I find nothing pertinent to the question in the case of Wenzler v. People, 58 N. Y. 516, cited upon the argument. The prolonged discussion in that case was as to whether the legislature could provide for the appointment instead of the election of police justices in the city of New York, in view of the special requirement in the said judiciary article of 1869 (section 18) that “justies of the peace and district court justices shall be elected in the different cities of the state.” An additional argument is found in the designation of “superior city courts” in the Code of Civil Procedure (section 263), as it existed when the constitution of 1894 was adopted, and also in the same designation in the said judiciary article of 1869; the inference being that all other local courts in cities should be designated inferior. I conclude that courts of justices of the peace in the city of Brooklyn are embraced in the designation of “inferior local courts’’ in section 3 of article 12 of the constitution (that being the article on cities), and that, therefore, the plaintiff’s term was abridged so as to end with the year 1895.

In order to' get a decision of the question involved, counsel for the defendant Schnitzpan, upon the argument, waived the question of whether an action to restrain the claimant of an office from interfering with the incumbent would lie. It only remains to say whether the injunction shall be continued against the police. They had no right to use force in the dispute between these rival claimants, nor by their presence to contenance or encourage it. That they did so to any extent is a dangerous sign. It is the duty of a court not to close its eyes to such occurrences. It is not the business of the police to meddle in such matters, or forcibly interfere with citizens except to arrest them for crime. The contrary has become all too common. The like is not permitted in- any free government in the world, except in some of the large cities of this country, and it will not be tolerated there much longer. It is the “right” of any citizen to arrest any one, even though he be a policeman, whom he sees committing any criminal offense, or to arrest any one who has committed a crime of the grade of felony, though he did not see him commit it; and it is the “duty” of a policeman to do the same. Cr. Code, §§ 177,183. A citizen has as much right to, arrest even a policeman committing a criminal offense as a policeman has to arrest a citizen. If either make an arrest, he must take the person arrested before a magistrate. To be plain about it, as the citizens do not want to be doing police duty, they hire policemen for that purpose, but do not thereby make them their masters, nor give them any more right to interfere with individuals than they have themselves. If the police are advised that one of these claimants is without any judicial authority, it would be quite enough for them to refuse to execute his warrants, or to bring any prisoner before him. However, as it was stipulated that the question should be decided, there is not likely to be any further unlawful interfence; and the motion to continue the injunction is denied.


source: Caselaw Access Project

author: LEWIS, J.

license: Public Domain

text:
    John O’Malley, Resp’t, v. People’s Building, Loan and Savings Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Building associations—Contract—Construction.
    In construing a contract with a building association, the company’s articles of association and by-laws must be considered as part of the contract and given their proper effect. »
    S. Same—Ultra vires.
    Such association does not possess the power or authority to issue a certificate containing a fixed maturity period, and the clause in a certificate . containing a fixed maturity period, should be construed as an estimated period of maturity.
    Appeal from a judgment in favor of plaintiff.
    Chester M. Elliot, for app’lt; George L. Bachman, for resp’t.
   LEWIS, J.

— This action was brought to recover the sum of $500, claimed to be due upon a certificate of five shares of stock issued by the defendant to the plaintiff, of the par value of $100 a share. The principal question presented is whether the plaintiff is entitled to recover the par value of the shares, or whether his recovery shall be limited to the sum of $871, that being the amount, as claimed by the defendant, which the shares had earned at the time this action was commenced.

The defendant is a building, loan, and savings association. It was organized in the month of December, 1887, under chapter 122 of the Laws of 1851, entitled “An act for the incorporation of building, mutual loan, and accumulating fund associations,” and the acts amendatory thereof and supplemental thereto. Its principal office is in .the village of Geneva, Ontario county, IST.Y. Its capital stock is $5,000,000, represented by 50,000 shares of the par value of $100 a share. It is provided by section 1 of the act of 1851 that any number of persons, not less than nine, may associate in forming an incorporated company for the purpose of accumulating a fund for aiding its members in acquiring real estate, making improvements thereon, and removing incumbrances therefrom, and for the further purpose of accumulating a fund to be returned to its mem- ' bers who do not obtain advances upon their shares of stock when the funds of the association amount to a certain sum per share, to be specified in the articles of association. The act provides for the filing of articles of association, which are to be subscribed by the members, in which shall be stated, among other things, the amount of entrance fee of new members and new shares, the monthly or weekly dues per share, the redemption fee on shares on which advances shall be made, the fines and penalties for nonpayment of dues, fees, or other violations of the articles of association, the manner of redemption of shares by advances made thereon, the mortgage security to be taken on such advances, how same may be redeemed or changed, and the ultimate amount to be paid to the owners of unredeemed shares. It was further-provided by said act that corporations formed under it shall have the power to borrow money for temporary purposes, not inconsistent with the objects of their organization, but that no loan for such purposes shall have a longer duration than two years.

Articles of association were duly subscribed and filed by the defendant. It is provided therein that persons, on becoming members of the association, shall duly subscribe a written application for shares desired to be purchased, and pay an admission fee of $1 on each share, and thereafter pay $1 a month on eaeh 'share,'and in addition thereto the sum of twenty-five cents every three months. The scheme or plan of the association is, briefly, to issue its shares of stock to persons desiring to purchase the same, and with the moneys paid by the shareholders, and the fines and penalties which may be imposed upon the members, to accumulate a fund which, after paying the expenses of the association, is to be loaned 'or advanced to the holders of the shares of stock who may make application therefor, to the amount of the par value of the stock. The moneys advanced are to be secured by the bond of the applicant, and by a mortgage upon unincumbered real estate, conditioned to pay on the amount borrowed annual interest of five per cent., and in addition thereto a premium of five per cent, per annum, the interest and premium to-be paid in weekly installments, until the mortgage matures. The certificates of stock upon which advances are not made may be held by the owner as an investment simply. The holder thereof is entitled to the dividends which may be made thereon from time to time. It is provided by the defendant’s by-laws that any member, in lieu of paying the monthly and quarterly installments, may, at the time of making application, pay $60 a share, and receive a paid-up certificate with a maturity face value of $100. The holders of these paid-up certificates are not liable for any admission fee, fines, or to the cancellation of,their stock; and they may, upon the surrender thereof, withdraw the amount they have paid on the same at any time after three years from the date of issue thereof, and before maturity, together with the annual interest of six per cent. The by-laws provide that the directors may, in lieu of the admission and other fees, deduct from paid-up certificates two per cent, per annum on the maturity face value of the stock for the estimated, maturity period of five years, and place the same in the expense fund, to defray the expenses of the association.

The purpose of the law, it will be seen, is to provide an opportunity for people of limited means to invest a portion of their income, making payments in small sums from time to time, and thereby secure to themselves homes, which they might not be able to do if they were required to make their payments in large amounts. If the affairs of such associations are conducted in conformity to the law and their articles of association and by-laws, the investments of the shareholders are reasonably safe; but if, on the contrary, they are improvidently and carelessly managed, they are quite sure to fail in their purpose.

There was issued to the plaintiff, upon his written application therefor, on the second day of December, 1889, a certificate for five shares of the defendant’s stock. It was provided in the certificate that the plaintiff was constituted the holder of five shares of stock of tiie defendant, of $100 each, “in consideration of the entrance fee, together with agreements and full compliance with the terms and conditions printed on the back of this .certificate, and the articles of association and by-laws adopted by the said association, all of which are hereby referred to and made a part of this contract.” The certificate further stated that the defendant agreed to pay said shareholder or his heirs, executors, adminitrators, or assigns, the sum of $100 for each of said shares at the end of five years from the date thereof, or, ’in case of bis death before the expiration of said term, then the sum of money equal to the amount of monthly installments paid on the shares, together with all dividends which have accrued thereon, “all of which are payable in the manner and upon the conditions set forth in the articles of association and by-laws, and terms and conditions printed on the back of this certificate.” The plaintiff in all respects complied with the rules and regulations of the defendant, and upon the expiration of the five years from the date of the certificate he presented it to the defendant, and demanded payment for its par value. The defendant declined to pay the $500 for the alleged reason that the shares had not then earned that amount, but stated that the amount they had earned was $371, which the defendant offered to pay to the plaintiff upon the surrender by him of the certificate. The plaintiff declined to accept the amount so offered and thereupon brought this action. The trial court construed the certificate to be an absolute, unconditional promise to pay the $500 upon the expiration of five years from its date, and directed judgment accordingly

The main question presented by the appeal, as stated, is whether the plaintiff is entitled to recover the face value of the certificte, or, shall his recovery be limited to the amount the shares have earned? If the language of the certificate alone is to be considered, there can be but little doubt that the decision of the trial court was right. In construing this contract, the defendant’s articles of association and by-laws must be considered as part of the contract, and given their proper effect. Gibbs v. Long Island Bank, 83 Hun, 92 ; 63 St. Rep. 854; In re Commissioners of Washington Park, 52 N.Y. 131. It is reasonably certain that if the construction contended for by the plaintiff is to prevail, it will thwart the scheme and purpose of the association, and probably bankrupt it. The plan of the organization contemplates that the holders of certificates shah be entitled to share equally in its earnings. It is a mutual association. ■It cannot with any propriety be claimed that, under the defendant’s articles of association and by-laws, it was contemplated that there should be any distinction in the time, for the maturity of the shares of stock. The officers of the defendant, however, assumed to issue to the plaintiff a certificate which, upon its face, states that the company, at the end of five years, will pay to the holder thereof the sum of $100 a share. Plaintiff’s payments were thirteen dollars a year on each share of his stock, amounting, upon his five shares, to sixty-five dollars a year, and in five years to the sum of $325. Interest, computed at six per cent, per annum on the payments from the time they were respectively made until the end of the five years, amounts to between forty-five and forty-six dollars, which, added to the payments, makes- $371, the amount which the defendant claimed the shares had earned, and which it offered to pay. If the plaintiff is entitled to recover the $500, his investment earned him from twenty-two to twenty-three ■ per cent, per annum; an amount of interest which, if paid upon all certificates issued by the defendant, would in all probability bankrupt the association, — a result which, it would seem, must have been apparent to the parties when the transaction took place.

The plaintiff was presumably aware of the general plan of the association, for it was stated in his certificate that the articles of association and the by-laws were to form a part of the contract, and, as stated, the general plan of the association contemplated that all the shareholders should be entitled to a pro rata share of its earnings. He must have been aware that it was not at all probably that the earnings of the association would be sufficient to pay the rate of interest which his construction of the contract calls for. It was not possible to know, at the time the certificate was issued to the plaintiff, when it would mature by the accumulation of dividends, for that necessarily depended upon the earnings of the association, and that could not be determined in ad vanee. The dues, fees, and penalties paid by the shareholders, with the interest and premiums paid by the borrowing members, make up and constitute the income of the association, and provide the fund from which the dividends upon, the stock are paid. People ex rel. Fairchild v. Preston, 140 N. Y. 549 ; 56 St. Rep. 480. The dividends can only be paid out of the earnings. Section 7, c. 122, Laws 1851, as amended*by chapter 546, Laws 1875. If the five-year clause be construed as an estimated time for the maturity of the certificate, then the certificate conforms to the general scheme of the organization and to the statutes. The authority to issue a certificate with a fixed period of maturity is not expressly given, either by the statute or by the articles of association or by-laws of the society. We are of the opinion that the defendant did not possess the power or authority to issue a certificate containing a fixed maturity period, and that the clause in the certificate in question should be construed as an estimated period of maturity. The amount actually earned by the certificate at the time it was presented by the plaintiff for payment was only $371.

The judgment should be reversed, and a new trial granted, costs to abide the event, unless the plaintiff, within twenty days, stipulates to reduce the recovery of damages to $371, and interest thereon from December 2, 1894; and, in that event, the judgment be so modified, and, as modified, affirmed, without costs of this appeal to either party.

A like disposition should be made of the case of Church v. Same. Defendant, infra. All concur.


text:
    John M. Church, Resp’t, v. People’s Building, Loan and Savings Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    Appeal from circuit court, Ontario county.
   _ The facts are substantially the same as in O’Malley v. Association, supra.

No opinion. Judgment reversed, and a new trial granted, unless plaintiff stipulate to reduce the recovery, on the opinion in O’Malley v. Association, supra.


author: DYKMAN, J.

text:
    Alvey A. Adee, App’lt, v. Thomas C. Arnow et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 27, 1895.)

    Towns—Employment op counsel.
    The town board, and not the town supervisor, has authority to employ counsel to represent the town in an action against it.
    Appeal from an order, requiring plaintiff’s attorney to accept the notice of appearance by Seward Baker for the town of Westchester.
    Frederic W. Adee, for app’lt; Seward Baker (J. W. Bartram, of counsel), for resp’t.
   DYKMAN, J.

—This action has for its object the cancellation of a tax lease made by the town of Westchester to the defendant Arnow, under the claim that it is a cloud upon the title of the plaintiff to certain lands belonging to him in that town. The summons was served upon the supervisor and town clerk of the town of Westchester on the 3d day of June, 1895. On the 6th day of June, 1895, Henry 0. Henderson, an attorney and counselor at law, served a notice of appearance for the town in the usual way, upon the attorney for the plaintiff. On the 18th day of June, 1895, Seward Baker served notice of appearance for the defendant Arnow on the plaintiff’s attorney ; and on the same day the latter served a copy of the complaint in the action upon each of the attorneys who had appeared as above stated. On the 21st day of June, 1895, Baker served a notice of appearance for the town upon the plaintiff’s attorney, which the latter returned by reason of the former appearance of Henderson. Baker also served an answer for the town on the 11th day of July, 1895, which was returned. On the 18th day of July, Henderson served an answer for the town; and on the 14th day of September, 1895, an order was made, upon the motion of Mr. Baker, requiring the plaintiff’s attorney to accept the notice of appearance by him for the town of Westchester. From that order we have this appeal. Mr. Henderson was employed by the board of town officers to defend the suit for the town, and Mr. Baker was employed by the supervisor of the town and the question for solution is, which employment is regular, or, in other words, who had the authority to employ counsel to represent the town in the action ?

In the towns of this state, many old things have passed away. By a recent statute of the state, the governing board of the towns is the {own board. ' Laws 1892, c. 685, § 1. And the supervisor, town clerk, and the justices of the peace, or any two such justices constitute town board of each town. Laws 1892, p. 2258. The functions of a governing board of a town must be the government of the town. All of the internal affairs of a town must be under the control of the board of town officers, so far as official action can go. Of course, the inherent power of the people is left undisturbed and unlimited, and there is no restriction upon its action in a public town meeting. Each town is constituted a municipal corporation, and the business of the town must be transacted by the corporate officers, or, as they are now called, the governing board.” An exception is created to the general rule by subdivision 2, § 80, art. 4, c. 569, of the town law, where it is provided that the supervisor of the town shall prosecute in the name of the town for all penalties given by law for its use, and for which no other officer shall be directed to prosecute. No authority is bestowed upon him to prosecute or defend any other action. As a member of the town board, the supervisor has no more or greater authority than any of the other officers who ar§ members, thereof, and neither of them can legally act independent of the other, or outside of the board. It is highly essential to the interests of the town that all questions respecting litigation should be determined • by a governing board. It may or may not be for the interests of the town to prosecute ot defend suits, and the determination of such questions requires the exercise of judgment and discretion. The governing board is constituted for all such purposes, and their power should not be limited or restricted by construction.

The order! should be reversed, with $10 costs and disbursements, and the motion denied with $10 costs, to be paid by the supervisor.

All concur.


text:
    Adela McNish, Resp’t, v. Village of Peekskill, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 28, 1895.)

    1. Appeal—Case.
    Where a ease on appeal from a judgment and an order denying a motion for a new trial upon the minutes of the court contains no order nor a certificate that all the evidence, or all bearing upon the question sought to be reviewed, has been included in the case, only the questions presented by • the exceptions taken on the trial will be considered.
    8. Same—Dismissal—Complaint.
    Where a defendant moves to dismiss a complaint without specifying any ground and the motion is denied, he cannot maintain his exception on appeal, provided the failure of proof could have been supported.

      8. Municipal corporations—Streets—Defective.
    It is the duty of a municipal corporation to exercise care and vigilance to maintain the public streets and avenues within its borders in a safe and suitable condition for public tiavel, and it must be proved guilty of a neglect of that duty before it can be rendered liable for injuries resulting under this condition.
    4. Same.
    An essential element of negligence is knowledge of facts which render foresight possible, and the circumstances necessary to be known before the liability for the consequences of an act or omission will be imposed must be such as would lead a prudent man to apprehend danger.
    5. Same.
    Where no sidewalk has been made or ordered on a street or avenue, no • civil action is maintainable for the failure to exercise the power to construct and regulate them.
    8. Same.
    A person walking along a path on the side of a village street on a stormy night, who leaves the path, and, attempting to cross the street at an un- - trodden place, falls into a furrow in the street made that day by a contractor working for the city in preparing to build a sidewalk on the side of the street on which the path was located, cannot recover from the village for the injuries sustained, where she knew that the street had been torn up.
    Appeal from a judgment for plaintiff, and from an order denying a new trial.
    L. F. Crumb, for app'lt ; Henry W. Bates, for resp’t.
   DYKMAN, J.

—This is an appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury against the defendant. There is also an appeal from an order denying a motion for a new trial upon the minutes of the court, but the case contains no order. Neither does it contain a certificate that all the evidence, or all bearing upon the questions sought to be reviewed, has been included in the case. Under such circumstances, we can Only consider the questions presented by the exceptions taken upon the trial. Lewis v. Merritt, 42 Hun, 161 ; 5 St. Rep. 274 ; Porter v. Smith, 107 N. Y. 531 ; 12 St. Rep. 479 ; Murphy v. Board, 53 Hun, 171 ; 25 St. Rep. 154. The omission to enter an order denying a motion upon the minutes of the court to set aside the verdict, and the failure to insert a certificate or stipulation that the case contains all the evidence, is equivalent to an admission that the facts are not to be reviewed.

The only exception requiring attention is the exception to the motion made at the close of the plaintiff’s case to dismiss the complaint, on the ground that the plaintiff had made out no cause of action. It will be observed that the ground of the motion is not specifically stated, and there is some question respecting its sufficiency in that respect to raise the question intended to be presented thereby. The rule of law upon the subject requires the defendant to specify the ground of his motion ; and where a defendant moves to dismiss a complaint without specifying any ground, and the motion is denied, he cannot maintain his exception on appeal, provided the Mlure of proof could have been supported. Haines v. N. Y. C. & H. R. R. Co., 145 N. Y. 238; 64 St. Rep. 717. In this case the ground stated was that the plaintiff had made out no cause of action ; and, although the statement is a general one, yet it refers to the insufficiency of the proof to charge the defendant with negligence. It is not like the case of a failure to prove a demand or a notice which might have been supplied if attention had been directed to the omission. We are therefore inclined to examine the case to determine whether the denial of the motion was erroneous.

The facts which had been developed upon the trial when the plaintiff rested her case were these: Hudson avenue is one of the outlying streets in the village of Peelcslcill. It leads east and west, with an ascending grade towards the east, and is crossed by Washington street and Eingold street, which are about 500 feet apart, the former being west of the latter. The first house on the south side of the avenue was Eeardon’s, about 120 feet east of the latter street. The next house was'that of Scribner, the mother of the plaintiff. There was a sidewalk on the south side of the avenue west of Eeardon’s house, and the surface of the ground was in its natural condition. There was a path on the south side from Eeardon’s west to Washington street, “if,” as one of the witnesses said, “you could find it.” On the 1st day of May, 1895, a contractor with the village commenced to grade the avenue, and ran a furrow with a plow along what was probably intended to be the north side of the sidewalk on the southerly side of the avenue, in the neighborhood of Eeardon’s house. The witnesses differed about the depth of the furrow, but it must have been, of course, less than twelve inches. The earth was left undisturbed south of that furrow. In the evening of the 1st day of Ma.y, 1895, the plaintiff, with her two daughters and a Mr. Fox,, went to the house of her mother at about eight o’clock in the evening. They walked up on the north side of the avenue, which was better than the south side. While at her mother’s house, there came a violent rain shower, accompanied with lightning and thunder; and, while the storm was yet prevailing, the plaintiff and her two daughters and Fox started out of the house, to go to her home. Instead of crossing the avenue and going west on the north side, the same way they came, they started weston the south side of the avenue, along the path; and, after proceeding a short distance, the plaintiff turned to cross the street, and fell between two trees, into the furrow that had been made'that morning, and fractured her kneepan.

Are these facts and circumstances sufficient to charge the defendant with negligence, and to prove the plaintiff’s freedom therefrom ? In the administration of the law, negligence is the omission of duty; and, under well-settled principles, it is the duty of municipal corporations to exercise care and vigilance to maintain the public streets and avenues within their borders in a safe and suitable condition for public travel, and they must be proved guilty of a neglect of that duty before they can be rendered liable for injuries resulting from their condition. Ordinary care is all the law requires, and extraordinary diligence is not exacted. An essential element of negligence is knowledge of facts which rendered foresight possible, and the circumstances necessary to be known before the liability for the consequences of an act or omission will be imposed must be such as would lead a prudent man to apprehend danger. All are bound to foresee what experience will teach them. In a given case, action must be dictated by experience. Where there is no knowledge of facts which would lead to an apprehension of danger, there can be no imputation of foresight or blameworthiness, and these two ingredients are necessary to constitute negligence.

It now remains for us to apply the foregoing rules to the facts of this case. Here we have an avenue in a state of nature, with an unfrequented path on eaeh side. The path on the north side was better than the one on the south side. It is within the discretion of the municipal authorities to make improvements in streets and avenues within their domain, or to omit them. In this case no sidewalk had been made or ordered on this avenue, and, for a failure to exercise the power to construct and regulate them, no civil action is maintainable. Mills v. City of Brooklyn, 32 N. Y. 489; Danaher v. City of Brooklyn, 22 St. Rep. 641; Harrigan v. City of Brooklyn, 42 Id. 625. A municipal corporation may determine for itself the extent of the improvements it will make. In this case the authorities had made no plan for a sidewalk, and so had never invited the public to use it as such, except at their own risk. There were neither excavations nor obstructions in the street in any place. A plow had been run along the south side of the avenue on the day of the accident, but the earth remained untouched and soft. Under such circumstances, it is not too much to say that no human foresight could have anticipated such an accident as befell the plaintiff. She did not fall by reason of any defect in the path over which she was walking. That was free from obstruction. It was a good way of its sort, and, as we have already seen, no civil liability arises from the failure of the municipality to provide a better kind. The plaintiff, therefore, has no legitimate right to complain of the inaction of the corporation, inasmuch as her injury did not result from any omission of duty which the law imposed upon it. No diligence or vigilance of the corporate authorities would have arrested the fall of the plaintiff, or averted her injury. If it be true that the avenue was not lighted, it is equally true that there was no legal obligation to light it. There was, however, an electric light at Washington street 150 feet from the place where tiie plaintiff fell.

Turning now to the conduct of the plaintiff, we find it not only careless, but heedless. She went out unnecessarily into the darkness of a fearful night; and instead of returning the way which she came, on the north side of the avenue, and which she knew to be safe, she started immediately west on the south side of the avenue, upon a narrow path. More than that, and as if to augment the perils of her environment, she turned aside, and started to pass over the avenue, where there was no crossing, and where she knew the street had been torn up -that day. She unnecessarily '

' left the path over which her companions had passed in safety, in advance of her, and turned upon an untrodden way, between bushes and trees, although it was so dark she could not see where •she was stepping, and could not see at all. There was no instant from the time the plaintiff left her mother’s house on that unfortunate night that she was not in imminent and impending danger, and she encountered it all voluntarily and unnecessarily. Her willful encounter of the perils not only contributed to the injury she sustained, but it was the entire cause of all her woes.

The case of McCabe v. City of Buffalo, 45 St. Rep. 456, is quite analogous to this. It there appeared that the plaintiff, who was a woman, before dark -passed a portion of a street which was undergoing repairs, and seeing that it was torn up, and that there was no pavement or cross-walk, passed around the same upon planks temporarily laid down, and, returning in the dark, attempted to cross the unpaved space, and was injured. It was was there held that it was a case in which the plaintiff was denied the right to presume that the crossing outside of the plank was in a safe condition, because she had before observed what its condition was, and that she was guilty of contributory negligence.

In no view of this case is the plaintiff entitled to a recovery, and the judgment must be reversed, and a new trial granted, with costs to abide the event.

BROWN, P. J., concurs; PRATT, J., dissents.


text:
    William Bridgen, as Executor, etc., Resp’t, v. Charles H. Osman, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    Rew trial—Inadvertence of counsel.
    A new trial is properly granted where the verdict is contrary to the admitted facts to which the attention of the court was not called through the inadvertence of counsel.
    Appeal from an order setting aside a verdict in favor of defendant.
    David M. Dean, for app’lt ; S. Edwin Day, for resp’t.
   LEWIS, J.

—The conclusion we have reached as to* the proper disposition to be made of this appeal makes it necessary to state but a very few of the many facts which were fairly established by the evidence. The plaintiff’s testatrix, during her lifetime, advanced and paid out the sum of $1,800, under circumstances which made the defendant liable to refund and pay to her one-half of said arpount. By an arrangement made between the widow and heirs at law of Milo Pierce, deceased, the principal part' of his estate was divided between them. This division occurred before any judicial settlement of the estate had taken place. The testatrix was a daughter of the deceased, and, as such, received her proportion of the property so divided. The amount she received was several thousand dollars. When the final settlement of the -estate was had, the assets remaining were not sufficient to pay the debts. The testatrix died after receiving the money, and before the final settlement of the estate was had. The amount which the estate of the testatrix was liable to pay to make up its proportion of such deficiency was $643.23, which sum the plaintiff, as executor, paid on the 25th day of November, 1892. It was established upon the trial that the defendant was legally liable to the plaintiff for one-half of the sums so paid. Two causes of action were stated in the complaint The first was for the $900 paid by the testatrix for the defendant. The second cause of action was for the one-half of the $643.23 paid by the plaintiff, as stated. The testatrix died in the month of April, 1892.

The question, and the only question, about which there was any -controversy upon the trial, was to whether the deceased had, during her lifetime, released and discharged the defendant from any and all claims on account of the payment of said sums of money. Such a defense was not pleaded by the defendant, but, notwithstanding his omission to interpose such a defense, the question was litigated, and the jury rendered a general verdict for the defendant. By the inadvertence and oversight of the plaintiff’s counsel, the court’s attention was not called to the fact, which had been assumed upon the trial, that the $643.23 was in fact paid by the executor after the death of the testatrix; that she was not aware of the existence of such a claim, and hence could not have released and discharged the defendant therefrom. The case, as settled, states that “payment of the sum of $643.23 by plaintiff to William Pierce, administrator, etc., of the estate of Milo Pierce, deceased, and that the same was paid on November 25th, 1892, were facts assumed on the trial.” It is the contention of the appellant’s counsel that this statement was not sustained by the evidence. It was inserted in the case by direction of the justice before whom the trial was held. It was not claimed in the complaint that the $643.23 was paid by the testatrix, but, on the contrary, it was claimed to have been paid after her death. We assume, in deciding the appeal, that the fact was as stated in the case. Upon the attention of the trial court being called to this error, an order was granted setting aside the verdict and granting a new trial, upon the payment by the plaintiff of the costs of the former trial and $10 costs of the motion. As to the claim of $900 paid by the testatrix during her lifetime, there would seem to be no good reason why the plaintiff should have a new trial. The jury found that the defendant had been released from any liability to pay that claim. As to the other claim, by the oversight and error of his counsel the plaintiff was unjustly defeated, and is entitled to relief.

The order should be affirmed, with $10 costs and disbursements, unless the defendant, within twenty days, gives to the plaintiff a stipulation consenting to allow judgment to be entered against him in said action for the sum of $321.61, with interest thereon from the 25th day of November, 1892, with costs of the action. If such stipulation be given, then the order appealed from should be modified accordingly, without costs of this appeal to-either party.

All concur.


text:
    William H. Rowerdink, App’lt, v. William H. Bitner, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Judgment—Reversal.
    An order, denying plaintiff’s motion to set aside a judgment by default for defendant on appeal to the county court from a judgment of the rnuni- . cipal court in favor of plaintiff will be reversed, where it appears that plaintiff's showing of excuse for nonappearance was not considered, but that the court based its denial of the motion on the ground that defendant was entitled to a reversal for the reason that the municipal court had given judgment for plaintiff for costs when his recovery had been less than defendant’s offer of judgment, and where it further appears that defendant’s offer of judgment was in fact less than plaintiff’s recovery, and no other error of the municipal court appeared to uphold said order.
    2. Same.
    Where there is error in the allowance of costs to the plaintiff in the municipal court after the service of an offer of judgment, the judgment should not be entirely reversed for that reason. The county court has power to correct the error by so modifying the judgment as to allow the defendant costs after the offer of judgment was made and deducting the amount from the judgment.
    Appeal from an order denying a motion to vacate a default judgment for defendant.
    John B. Kiely, for app’lt ; Hiram R. Wood, for resp’t.
   LEWIS, J.

— This action was commenced in the municipal court of the city of Rochester. The complaint alleged that the defendant was indebted to the plaintiff upon a promissory note dated January 5, 1893, for $40, and interest thereon from that date. Other causes of action were alleged in the complaint. The answer admitted the making and delivery of the note; alleged certain counterclaims and partial payments. Upon the return of the summons in the municipal court, the defendant filed a written offer to allow judgment to be taken against him for the sum of ,$39, with interest thereon from January 5, 1893, and costs. The case was tried on the 16th day of January, 1895, and a judgment was rendered for the plaintiff for $44.66 damages; being for the amount of the note mentioned, with interest from its date, and $11.60 costs. The defendant appealed to the county court of Monroe county, where said judgment was reversed by default, and the defendant recovered judgment against the plaintiff for $50.34, costs of such appeal. The plaintiff moved in the county court, upon affidavit, to open such default. The facts stated in the moving papers tended very strongly to excuse plaintiff’s default in not appearing in the county court when the case was reached. The court did not consider the question of excuse, but denied the motion upon the ground, as stated in the order, that the defendant would, in any event, be entitled to a judgment of reversal. It appears from the record presented to us that the offer of judgment in the municipal court was not considered by that court in rendering its judgment, for the reason that the offer had been inadvertently removed from the files of the court; and the judge, when rendering his judgment, was not aware that the offer had been made, and therefore omitted to consider the question of the defendant’s right to costs after the service of the offer. It is the contention of the respondent that the judgment in the municipal court was not more favorable to the plaintiff than the offer of the defendant, and that, therefore, the defendant was entitled to costs after the offer, and for the error in not allowing him costs the judgment must necessarily be reversed on the merits; and that seems to have been the view taken by the county court. Mo other reason for denying the motion appears in the papers. .A simple computation of interest upon the amount for which judgment was offered shows that the offer was less, by nearly one dollar, than the amount of plaintiff’s recovery in the municipal court. The judgment in the municipal court seems to have been, in all respects, entirely correct. If, however, there was error in the allowance of costs to the plaintiff in the municipal court after the service of the offer of judgment, the' judgment should not have been entirely reversed for that reason ; for the county court had power to correct the error by so modifying the judgment as to allow the' defendant costs after the offer of judgment was made, and deducting the amount from the judgment. Shaw v. Davis, 55 Barb, 390, and cases cited. The motion having been denied upon a ground which had no real foundation, and no other error appearing to uphold the order appealed from, it should be reversed.

Having come to this conclusion, it is not necessary to consider the question as to whether the return’s not having been filed in the county clerk’s office until the day appointed for the term of the county court to begin gave the county court jurisdiction of the case to render a judgment by default.

The order appealed from should be reversed, with $10 costs and disbursements of the appeal.

All concur.


author: MERWIN, J.—

text:
    William E. Pratt, as Receiver, etc., App’lt, v. Charles H. Baker el al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Fixtures—Furnace eor dwelling.
    Where the owner of lands provides anything of a permanent nature, fitted for and actually applied to use upon the premises, by annexing the same, it becomes a part of the realty as between mortgagor and mortgagee, though it might be removed without injury to the premises. So held, in case of a hot air furnace for a dwelling, which was set on a cement base in the cellar and had pipes that slip on collars on the casing of the furnace and extended therefrom to different parts of the house, and which was put into the dwelling for permanent inprovement and used as such for several years.

      Appeal from a judgment, reversing the judgment of the justice of the peace.
    H. E. Miller, for app’lt ; Walter S. MacGregor, for resp’ts.
   MERWIN, J.—

The subject of this action is a No. 9 Howard warm-air furnace, placed by Mr. and Mrs. John Schaefer, or by their direction, in the cellar of a brick dwelling house on Henry street, in the city of Syracuse, in the spring or summer of 1891. In November, 1891, Mr. and Mrs. Schaefer executed to the defendants, or one of them, a mortgage on the premises. This was afterwards foreclosed, and upon the judgment of foreclosure a sale was made by the sheriff, and the property bid in by the defendants Baker and Plumb, to whom a deed was given by the sheriff on or about October 15, 1892, and they went into possession. The mortgage and deed were put in evidence before the justice, and, although they are not attached to the printed record before us, a description sufficiently definite appears. By order, dated the 3d day of October, 1892, and recorded October-11, 1892, in proceeding supplemental to execution, the plaintiff was appointed receiver of the property and effects of John Schaefer. On November 4, 1892, Mrs. Schaefer assigned to the plaintiff, as receiver, all her interest in the furnace. On the 8th April, 1893, the plaintiff, after a demand, brought this action in replevin to recover the furnace, or its value in case delivery could not be had. He recovered before the justice, but the judgment was reversed by the county court. The county judge was of the opinion that the furnace was a fixture, and part of the real estate. The claim of the plaintiff is that the furnace is personal property, and did not pass by the mortgage and deed on foreclosure to the defendants.

. The furnace was put into the house by the Howard Furnace Company under a written agreement, dated April 1, 1891, between the company as party of the first part, and Mr. and Mrs. John Schaefer as parties of the second part. By this agreement the company agreed “ to put into the dwelling (brick), No.Henry street, for second party, one No. 9 Howard warm-air furnace (with double casing, brush for cleaning, and all attachments complete), and warm-air pipes, registers, and other connections necessary to heat the following rooms: First floor—hall, two parlors, and dining room; second floor — chambers over parlor, sitting room, dining room, and kitcken. Three upright pipes. All registers and cold-air faces to be black japanned, of Tuttle & Bailey make, and shall be placed, one in each of the above-named rooms. The furnace to be provided with the Howard nickel-plated damper regulator, for regulating the drafts from the first floor. The furnace shall be connected with two wooden cold-a:r boxes, one from hall and one from dining room. . The necessary lumber shall be furnished and boxes built by second party. All necessary carpenter and mason work to be done by second party.” The cotnpany guarantied that under proper care the furnace shall heat to seventy degrees Fahrenheit, in zero weather, the rooms connected with said furnace.” The price was $140.

A witness on the part of the defendants testified as follows:

“ The furnace is located in about the center of the cellar, with two hot-air pipes attached. The hot-air pipes are attached to the furnace by collars on the furnace, and the pipes run up through the building. There is a smoke pipe attached to the furnace Which goes into the chimney. The base of the furnace is set in. cement, with one or two inches of cement close up around the furnace. The furnace has been used in the house since it was put in, and has been used for heating the house about two years.”

A witness on the part of plaintiff testified as follows:

“ This is a hot-air furnace. It can be taken down and moved the same as a large stove? (Objection overruled.)• Ans. Yes. Q. It is suitable in one house as well as another, the houses being of equal size ? (Objection.) Ans. Yes. The inside of this furnace is of cast iron, covered on the outside with galvanized iron double cased. The jacket is circular, and about forty-eight and. a half inches in diameter, and stands fifty-two inches high. I took the men to the house in question, and bad them lay a brick foundation ; a circle of bricks a little greater than the diameter of the jacket; one row of bricks in the foundation. The mortar is then, put around the base ring, which is laid on top of the brick foundation. The base ring is separated from the furnace, and the furnace stands upon it. After the brick work the top of the brick was about two inches above the surface of the cellar. As I recollect, the cellar was not grouted when I put in the furnace. When the base ring is placed, the remaining sections of the furnace are put on, one above the other, and the jacket put on over ail. The hot-air pipes are simply connected with the jacket. There is a galvanized iron collar onto which the pipe is dovetailed. The elbows slip over the collar without being soldered. The elbows may be slipped off, and the furnace removed, and another furnace, taking off the pipe at the side, substituted, if desired. There was a little mortar on each side of the base ring when I left it,—enough to keep out the air.”

The defendants are in possession, and claim the furnace under the mortgage given by the parties the plaintiff represents. The defendants are therefore entitled to the benefit of the law on the subject of fixtures applicable to the case of mortgagor and mortgagee.

As between vendor and vendee, and mortgagor and mortgagee, the rule is laid down that if the owner of lands provides anything of a permanent nature, fitted for and actually applied to use upon the premises, by annexing the same, it becomes a part of the realty, though it might be removed without injury to the premises. 1 Washb. Real Prop. (4th ed.) 22 ; Voorhees v. McGinnis, 48 N. Y. 282. In McRea v. Bank, 66 N. Y. 489, it is said if the article is attached for temporary use, with the intention of removing it, a mortgage cannot interfere with its removal by the morí» gagor; but it attached for the permanent improvement of the free» hold, he may. In Buckley v. Buckley, 11 Barb. 44, 63, it is said by Judge Hand:

“ The rule in this state, as between grantor and grantee, vendor and vendee, mortgagor and mortgagee, and heir and personal repfesentative of the deceased, still is that whatever is annexed or affixed to the freehold, by being let into the soil'or annexed to it, or to some erection upon it, to be habitually used there, particularly if for the purpose of enjoying the realty or some profit therefrom, is a part of the freehold.”

In Ewell, Fixt. p. 275, it is said the general rule undoubtedly is that all fixtures, whether actually or constructively annexed to the realty, pass by a conveyance or mortgage of the freehold, where there is nothing to indicate a contrary intention. The intention is sometimes presumed, or it maybe inferred from circumstances. In re Eureka Mower Co., 86 Hun, 312 ; 67 St. Rep. 200.

In the present case neither Mr. nor Mrs. Schaefer was sworn as -a witness. Having in view the very apparent object and purpose of putting in this Furnace, as particularly indicated by the contract under which it was put in, and by the manner in which it was put in, as testified to by one of plaintiff’s witnessess, it is very clear that it was put in for a permanent improvement, and so remained until the Schaefers left the property in October, 1892, and was there, undisturbed, when the defendants took possession under their deed. The fact that the furnace might be taken to pieces and put up in some other house of equal size does riot change the effect of the situation. A great many articles, undoubtedly fixtures, could be treated in that way. The appellant suggests that it was not shown that the Schaefers owned the property in the spring of 1891. They were in possession, acting as owners, and as such gave the mortgage. The plaintiff cannot complain if the defendants are deemed to have the rights of mortgagees.

The appellant further suggests that the intent of the Schaefers was a question of fact, and that the presumed finding of the justice on that subject should be deemed to be conclusive. The answer to that is that the material facts and circumstances on the subject of the intent are undisputed, and they do not warrant the conclusion that the furnace was put in as a temporary structure, or for temporary use, or with the intention of removing it. We are of the opinion that the furnace should be deemed, is against the plaintiff, a part of the realty.

Judgment affirmed, with costs. ;

All concur.


author: MERWIN, J.

text:
    Ada S. De Van, Resp’t, v. Commercial Travelers’ Mutual Accident Association of America, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Insurance—Accident—Drowning.
    Involuntary death, by drowning is a death" by external, violent and accidental means, within the meaning of an accident life certificate or policy.

      2. Same—Presumption.
    "Where, from the facts of the case, it appears that a violent death was either the -result of accidental injuries or of a suicidal act of the deceased, the presumption is against the latter.

      3. Same—Question for jury.
    • Where there is direct and positive proof as to the cause of the death and of the surrounding circumstances, from which it is for the jury to say whether or not the death is the result of design on the part of the member, the question whether the decedent committed suicide is for the jury.
    4. Same—Intoxication—Question for jury.
    Where there is evidence that the insured drank liquor on various occasions • during the four days prior to his death, but the witnesses who saw him during the time, and last on the night before be was drowned, testified • that he was all right, was not intoxicated and not under the influence of • liquor, the question whether he was under the influence of liquor when the accident occurred, and whether death occurred in consequence of his having been under the influence of liquor, are for the jury.
    -5. Same—Proof of loss—Estoppel.
    Where the proofs of loss are made on blanks furnished by the company,' and the company retains them over a month, and then refuses to pay the claim, it cannot object then to such proofs.
    Appeal from a judgment entered on a verdict of the jury in favor of plaintiff, and from an order denying a motion for a new trial.
    M. M. Van Auken, for app'lt ; S. M. Lindsley, for resp’t.
   MERWIN, J.

—This action is based on a certificate of membership issued by the defendant to Theodore J. De Van, the husband of the plaintiff, on the 17th day of March, 1888, in and by which, the defendant, for certain considerations therein named, agreed to pay to the plaintiff the sum represented by the payment of $2 by each member of the association, not to exceed the sum of $5,000, “within ninety days after satisfactory proof shall have been duly filed with its seceretary that the said Theodore Jay De Van, at any time during the continuance of this membership, shall have sustained bodily injuries effected through external, violent, or accidental means, within the intent and meaning of this contract, and this conditions hereto annexed, and such injuries alone shall" have occasioned death within ninety days from the happening thereof.” In one of the conditions annexed it was provided that the benefits under the certificate should not extend “to any case except where the injury is the approximate and sole cause of the death or disability, or when the injury may have happened while the member was, or in consequence of his having been, under the influence of intoxicating drinks, or to any death or personal injury, unless the ■ claimant under this certificate shall establish by direct and positive proof that the death or bodily injury was caused by external, violent, and accidental means, and was not the result of design on the part of the member.” The defenses were : (1) That the insured committed suicide; (2) that his death occurred in consequence of his having been under the influence of intoxicating liquors; (3) that it occurred while he was under the influence of intoxicating liquors; (4) that the claimant did not establish by direct and positive proof that the death was caused by external, violent, and accidental means, and was not the result of design on the part of the member.

The body of De Van, theinsured, was found between fiveand six o’clock in the morning of July 16, 1893, in the canal at the foot of Mulberry street, in the city of Syracuse, at or near the termination of a sidewalk running up to the margin of the canal, and which was then unprotected. There had previously been a bridge there, and one was then in process of construction. De Van was last seen alive abouttwo o’clock of that morning, at or near a hotel in that vi'cinity. It was a very warm and muggy night, and the claim of the plaintiff is that the decedent, in attempting to cross the canal,, accidentally fell in and was drowned. It was practically undisputed that De Van came to his death by drowning. Involuntary death by drowning is a death by external, violent, and accidental means, within the meaning of a certificate or policy of the kind here in question. Tucker v. Mut. B. L. Insurance Co., 50 Hun, 51; 23 St. Rep. 957 ; Indemnity Co. v. Dorgan, 7 C. C. A. 581; 2 Bac. Ben. Soc. § 484. Where, from the facts of the case, it appears that a violent death was either the result of accidental injuries or of a suicidal act of the deceased, the presumption is-against the latter. Mallory v. Insurance Co., 47 N. Y. 52.

Very clearly the question whether the decedent committed suicide was for the jury. There was direct and positive proof as to the cause of the death and of the surrounding circumstances, from which it was for the jury to say whether or not the death was the result of design on the part of the member. The character or grade of the evidence was, we think, sufficient to answer the requirement of the condition on that subject. Peck v. Equitable Ac. Association, 52 Hun, 259; 23 St. Rep. 465; Utter v. Insurance Co., 65 Mich. 545; 2 May, Ins. (3d Ed.) p. 1191.

The main question in the case relates to the defense that the death occurred when the insured was under the influence of intoxicating liquors. This proposition the jury in effect answered in the negative, and the claim of the appellant is that the verdict in that regard is against the evidence. It was shown on the part of the appellant that De Van was at Syracuse on the night of Wednesday, July 12th, and that at divers occasions from that; time until a short time before he was found drowned in the canal he drank intoxicating liquor. Ho doubt the jury might have found from the evidence that he was under the influence of liquor when he fell into the canal, but whether they should necessarily; have found that is another question. One of the witnesses for the defendant, who was with the decedent a large portion of Fridays night and Saturday, testified that when he last saw him, about! half past six Saturday evening, he was all right. On the part of; the plaintiff it was shown by Mr. Larrabee, who for several years, had business dealings with De Van, that he (De Van) came into-, the office of the witness about four o’clock in the afternoon of; Friday, July 14th, and remained there about an hour, so that the, witness had opportunity to observe whether he was under the influence of liquor; and that at that time there, was no indication of his being intoxicated, or that he had been drinking ; and that, in his judgment, he was perfectly sober. Mr. Young, the partner of Larrabee, was present on the same occasion, and corroborates-the evidence of Larrabee. Mr. Mills, who was with De Van for several hours Saturday night, and up to a short time before he was found drowned, and was the lust person who saw him alive, testified that, although during the night De Van drank several times, he was not intoxicated, and that he couldn’t say that he was under the influence of liquor. This witness also described the situation and appearance of De Van during the night, and when he left him. Another witness testified that ten o’clock, or a little after, on Saturday night, De Van came into a restaurant where she was at work, talked with her, and remained a short time, and that there were no indications in the least that he had been drinking. Whether or not De Van was at the time of the accident in the condition claimed by the appellant was a matter of inference to be drawn not only from such oral evidence as the jury considered credible, but also from all the surrounding circumstances that appeared in the case. It was peculiarly a question for the jury, and their conclusion should not, we think, be disturbed. The case of Couadeau v. Accident Co., 95 Ky. 280, seems to be quite in point as to the right of plaintiff to have the question determined by the jury. For similar reasons the question whether the death occurred in consequence of the insured having been under the influence of intoxicating liquors was for the jury.

It is suggested by the appellant that the proofs of death furnished by the the plaintiff to the defendant were not sufficient Blanks were used that were furnished by defendant, and the proofs were delivered to the defendant on the 29th of January, 1894, within the time allowed by the certificate. The were retained by the defendant, and not objected to, and on the 8d of April, 1894, the defendant refused to pay the claim. The de-, fendant is not in a position to object to the proofs. Titus v. Insurance Co., 81 N. Y. 410. The judgment should, we think, be affirmed.

Judgment and order affirmed, with costs.

All concur.


text:
    South Brooklyn Sawmill Company, Resp’t, v. Richard Cronin et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)
    PltlNCIPAL AMD AGENT—AUTHOBITY.
    The evidence, in this case, was held to establish that the pile driver was hired to a third party by the defendants and that the agent of the plaintiff was to collect the hill for them, and that the arrangement imposed no liability upon the plaintiff and constituted no counterclaim in favor of the defendants.
    Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial.
    James C. Church, for app’lts; Hyland & Zabriskie, for resp’t,
   DYKMAN, J.

—This is an appeal from a judgment and an order denying a motion for a new trial upon the minutes of the court. The action was for the recovery of $101, with interest, for goods sold and delivered by the plaintiff to the defendants. The answer admitted the claim of the plaintiff, and set up a counterclaim of $96, for the use of a pile driver, and the counterclaim was controverted by the plaintiff. The testimony of one defendants upon that subject was that Mr. Buckley, who was acting for the plaintiff, said to him:

“ T have got a big job down there,’ he says, ‘for you to hire a pile driver, and I-told him $10 a day.’ Says I, ‘Who is it for?’ He said, ‘McBean,—a fellow by the name of McBean.' Says L ‘I am told that this man is a great blower,’—so I heard,—‘and Bucldey,’ says 1, ‘I will collect this bill from you.’ And Buckley says, T am all right; we are good for the bill; ’ and so I gave it to Bucldey.”

The true construction of that testimony is that the pile driver was hired to McBean, and Buckley was to collect the bill for the defendants. That arrangement imposed no liability upon the plaintiff, and constituted no counterclaim in favor of the defendants. The verdict was properly directed for the plaintiff, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

All concur.


author: BROWN, P. J.

text:
    Ann Minott Mitchell, as Administratrix, etc., Resp’t, v. Village of White Plains, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 2, 1895.)

    1. Action—Legal or equitable.
    A complaint, which states that the plaintiff was in possession of certain premises, and that the defendant entered on a strip thereof, broke down the fence, dug a sewer and appropriated said strip for highway and sewer purposes, and demands judgment for a certain sum as damages, but does not ask for a permanent injunction, states only a legal cause of action.
    3. Same—Compelling trespasser to purchase land.
    An action to compel a trespasser to purchase land at a price to be fixed by the court, cannot be maintained at law or in equity.
    3. Same.
    In an action to restrain the continuance of a trespass and to prevent a multiplicity of actions at law to recover damages, the court may determine the amount of damages which the owner would sustain if the trespass was permanently continued, and may provide that, upon payment of that spm, the plaintiff shall convey the right to the defendant. _ ' ,
    4. Same.
    But. in all cases, wherein judgments of this character have been granted the offending party had the right to exercise the power of eminent domain and acquire the property on which the trespass was committed or the right to do the acts complained of.
    Appeal from a judgment in favor of plaintiff. •
    H. T. Dykman, for app’lt; Wm. P. Fiero, for respt.
   BROWN, P. J.

—This action was commenced by Isabella H. Mitchell. In her complaint she alleged that she was the owner, and in possession, of about ten acres of land in the town of White Plains, Westchester county, and that on September 9, 1894, the defendant unlawfully entered npon a strip of said land adjoining Mamaroneck avenue, which is described as being 50 feet in width and 450 feet long, broke down the fence, and dug a sewer thereon and appropriated the same for highway" and sewer purposes. Judgment was demanded for $5,000 damages. The answer put in issue the title to the land, but that question, upon a former appeal (62 Hun. 231 ; 41 St. Rep. 787 ; 138 N. Y. 627 ; 51 St. Rep. 934), has been determined adversely to the defendant’s contention. The referee found that the acts of trespass were committed as alleged in the complaint; that the value of the fence which was $138.33. In reference to other damages, he found “ that the depreciation in value of the property of the plaintiff, fifty feet in width and four hundred and fifty-three feet in length„taken, used, and appropriated by the defendant, was the sum of three thousand five hundred dollars.” He further found that the plaintiff had offered to convey said strip of land to the defendant upon payment of the amount fpund due by the referee, with costs, and directed judgment to be entered against the defendant for the aforesaid sum and interest, and that upon payment of said judgment by the defendant, the plaintiff should execute and deliver to the defendant a deed conveying to" it. the aforesaid strip of land in fee-simple absolute. The referee’s report was'dated January 23, 1895. On February 9, 1895, Isabella H. Mitchell died intestate. Judgment appears to have been entered on February 18, 1895. On February 25,1895, the plaintiff was appointed administratrix of said Isabella H. Mitchell, and was, by an order of the court dated March 14, 1895, substituted as plaintiff in this action.

It is the claim of the respondent that this action is in equity, and the appeal has been argued by her upon that assumption. If such is the character of the action, it is plain that the proper parties are not before .the court, and we should be compelled to defer consideration of the case until they are brought in. The plaintiff, as administratrix of Isabella H. Mitchell, has no title to the land, and she could not comply with the provisions of the judgment, which required a deed for the land to be executed and delivered to the defendant on payment of the judgment. The title to the land is vested in the heirs of Isabella H. Mitchell. It does not appear from the record who such heirs are, but they alone can execute a conveyance of the land, and are entitled to be paid its value. The plaintiff, as administratrix, took title only to such damages as had been sustained prior to the commencement of the action. Shepard v. Man. Railroad Co., 117 N. Y. 442; 27 St. Rep. 705; Griswold v. Met. E. Railroad Co., 122 N. Y. 102; 33 St. Rep. 232. While, therefore, it was proper, upon the death of Isabella H. Mitchell, that her administratrix should have been made a party plaintiff, her interest in the recovery was limited to the damages sustained before the commencement of the action, which the referee has found to be $138.33.

As to that part of the recovery which was basecl upon the value of the land appropriated for the sewer, the heirs of Isabella H. Mitchell were the sole persons interested, and they have not been made parties to the action. We are of the opinion, however, that the complaint sets out a common-law action for trespass only. There is no prayer for a permanent injunction, and none is granted by the .judgment. The theory of the action appears to have been that the owner could recover the value of the strip of land taken, and that, upon payment of its value, the land could be conveyed to the defendant; in other words, that the defendant could be compelled to purchase the land at a price to be fixed by the court. But an action of that character is unknown and unprecedented, and cannot be maintained at law or in equity. Galway v. Met. E. Railroad Co., 128 N. Y. 143-146 ; 40 St. Rep. 145 ; Pappenheim v. Met. E. Railroad Co., 128 N. Y. 436 ; 40 St. Rep. 445. It is settled in this state that no action at law c»n be maintained by an owner to recover prospective damages for injuries to real property. Uline v. Railroad Co., 101 N. Y. 98 ; Pond v. Met. E. Railroad Co., 112 id. 187 ; 20 St. Rep. 479 ; Tallman v. Met. E. Railroad Co., 121 N. Y. 119 ; 30 St. Rep. 491. An action in’ equity may be maintained by a landowner, not for the purpose of recovering the value of land appropriated by a trespasser, but to restrain the continuance of a trespass, and to prevent a multiplicity of actions at law to recover damages. In such an action the court may determine the amount of damages which the owner would sustain if the trespass were permanently continued, and may provide, upon payment of that sum, the plaintiff shall convey the right to the defendant. But a court of equity cannot adjudge that the defendant shall pay, and the plaintiff shall convey. The privilege of securing the right to continue the acts complained of is granted as a favor to the offending party, and notas a matter of right to the injured owner; and, in all cases wherein judgments of this character have been granted, it will be found, I think, that the offending party had the right to exercise the power' of eminent domain, and acquire the property upon which the trespass was committed, or the right to do the acts complained of. The rules applicable to equitable actions of this character, and the power of the court therein, are fully discussed and stated in Galway v. Railroad Co., and Pappenheim v. Railroad Co., supra. An owner of land trespassed upon may sue at law to recover damages for the trespass, or he may resort to equity, and have an injunction restraining its continuance. The trespasser is under a legal obligation to discontinue his acts, and the law presumes he will do so. . But where it is conclusively determined that the acts complained of are to be continued, and the case is one wliere the defendant may acquire the right to continue them, a court of equity, as an act of grace or favor, will withhold its injunction, upon condition that defendant pay the value of the right. In that way condemnation proceedings are avoided, and. the owner recovers the permanent damages,to his property.

In this case it was decided, upon the former appeal, that the statute under which Mamaroneck avenue was laid out (chapter 552, Laws 1868) was unconstitutional, and we are not referred to any law which grants to the defendant the right to acquire title to the strip of land in disputa The right to recover was therefore limited to damages sustained prior to the commencement of the action. The only damage of that character proven was the value of the fee destroyed, which was found by the referee to be $138.— 33. The judgment must be reversed, and a new trial granted, unless the respondent stipulates within twenty days to reduce the recovery to $138.33, with interest from September 9, 1890, and if such stipulation is filed, the judgment so modified is affirmed, without costs of appeal.

All concur.


text:
    Patrick J. Gleason, Pl’ff, v. Henry J. Blanc et al., as Inspectors, etc., Def’ts.

      (Supreme Court, Kings Special Term,

      Filed December, 1895.)

    Elections—False returns—Mandamos.
    Where a false copy of the statement of the total number of votes cast and the number thereof cast for each candidate is filed with a city clerk who, accepting the same as true, issues a certificate of election to the person apparently receiving the most number of votes, the candidate in fact elected is entitled to a peremptory writ of mandamus requiring the inspectors to reconvene and file with the city clerk a true copy of the original statement, and also requiring the city clerk to recanvass the returns, following the true statement.
    Application by Patrick J. Gleason for a peremptory writ of mandamus to Henry J. Blanc and others as inspectors of election, and to the city clerk of Long Island City.
    Jesse Johnson, for motion ; W. E. Stewart, opposed.
   GAYNOR, J.

—In the recent general election Strong, Madden, Gleason, and Woodruff were candidates for the office of mayor of Long Island City, in Queens County. By the election law the Inspectors of election in each election district of the said city were required to make and sign a written statement of the canvass of the votes, showing among other particulars, the total number of votes cast for .each office, and the number thereof cast for each person voted for (Laws 1892, c. 680, § 115), to file such original statement in the office of the county clerk, to deliver a certified copy thereof to a supervisor of said city, and to file another certified copy thereof with the city clerk (id. § 117). It needs to be noted that an original statement and two copies are thus provided for. The original is to be filed in the county clerk’s office, and is necessarily the sol.e authentication of the result of the canvass. The two copies provided for have no validity, except as they are true copies. In this case the said original sets forth that in the first election district of the Fourth ward the total vote for mayor was 300, of which Strong received 147 votes, Madden 109, Gleason 68, and Woodruff 6. The certified copy given to the supervisor is correct. The paper filed with the city clerk as a certified copy is false, and upon its face appears tó be intentionally false and fraudulent. It gives the total vote as 328 (instead of 300), the vote for Strong as 123 (instead of 147), that for Madden as 147 (instead of 109), that for Gleasan 52 (instead of 68); and no vote for Woodruff. There is no clerical error here, but a change of every number. It cannot, therefore, be said that the inspectors complied at all with the requirement to file a certified copy of the original with the city clerk. They omitted their duty, and filed', instead, a false paper. The court is asked to issue a peremptory writ of mandamus requiring them to reconvene and perform their duty by making, certifying, and filing with the city clerk a true copy of the original which is on file in the county clerk’s office, and also requiring the city clerk, upon receiving the sanie, 'to re-canvass the returns in his office, rejecting the said false statement' and following the true one. The city clerk is the canvassing officer of Long Island City by law, and he hastily made the canvass after election, accepting the said false copy as true. It also appears, before me, by the original statement of canvass of the second district of the First ward and by the certified copies delivered to the supervisor and city clerk, that Madden received in that disrict 125 votes. In making his said canvass, however, the city clerk chose to read these figures as 175, although he thereby added fifty more votes than were cast in that district The result of his canvass showed a plurality for Madden, whereas the true, returns elect Gleason. He issued a certificate of election to Madden, who speedily took the oath of office. The foregoing facts are not questioned. On the contrary, they were conceded to be the facts by the respondents upon the argument. Beyond a dispute or a pretense, except a criminal one, Gleason was elected. It is contended, however, that in the face of such iniquity this court is powerless to afford present redress, but must wait the slow progress of an action by Gleason to oust Madden from the office after he takes possession the 1st of January next. It is pointed out that there is no specific provision of the election law prescribing a writ of mandamus for such a case. There does not need to be. This court has the general power to compel the performance of official duty. In respect of the false statement filed with the city clerk by the inspectors of the first district of the Fourth ward, the case is the same as though they had filed no statement at all. The one case is as much a complete failure to perform the ministerial duty required of them as is the other, and such a failure is ground for ordering a writ of mandamus to compel the official duty to be-done. People v. Schiellein, 95 N. Y. 124. The suggestion that the filing of a true certified statement by the inspectors of election, and the making of a true canvass by the city clerk, resulting in a certificate of election to Gleason, will do him no good, because he will still have to bring an action to oust Madden, who holds'a false certificate of^election, and has qualified, is without foundation. Madden is not yet in possession of the office, and if Gleason gets his certificate as the result of obedience to the writ of mandamus, he, and not Madden, will be entitled to take the office on the 1st of January, and it will be for the latter to go to expense and trouble of an action to get possession, if he be so disposed. And if this were not so, the least that could be said would be that the writ of mandamus would be the means of putting Gleason on even terms with his adversary, by enabling him to qualify and present himself, and try to get first possession ; and that alone would prevent the writ from being futile, and not to be granted for that reason. The suggestion to the contrary in the case of People v. Supervisors of Greene Co., 12 Barb. 217, has not been deemed the law. The motion is granted.

Motion granted.


author: HARDIN, P. J.

text:
    Peter A. Ward, as Receiver, etc., Resp’t, v. Norman Petrie et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Feaudulent conveyances—Hindering collection oe debt.
    An action by a receiver in supplementary proceedings to recover damages sustained by fraud may be maintained against a mortgagor and mortgagee, where the mortgage was executed to hinder a collection of a debt of the mortgagor.
    Appeal from a judgment in favor of plaintiff, and from an order denying a new trial.
    Wayland F. Ford, for app’lts; Rogers & Atwell, for resp’ts.
   HARDIN, P. J.

—The jury were instructed that, unless fraudulent intent was found to exist on the part of both defendants, the mortgage should be found to be valid.' The evidence is sufficient to sustain the finding that the mortgage was fraudulent as to both mortgagor and mortgagee, and made to hinder and delay the collection of the debt represented by the plaintiff, as receiver. Billings v. Russell, 101 N. Y. 227 ; Baldwin v. Short, 125 id. 553 ; 36 St. Rep. 138 ; Plow Co. v. Wing, 85 N. Y. 421. We think the plaintiff, as receiver, was in position to attack the mortgage. Code, § 2649 ; Alden v. Clark, 86 Hun, 357 ; 67 St. Rep. l54 ; Stephens v. Perrine, 143 N. Y. 482 ; 62 St. Rep. 843. The action w;as to recover damages sustained by- fraud. Oil Co. v. Everest, 30 Hun, 586 ; Quinby v. Strauss, 90 N. Y. 664 ; Murtha v. Curley, id. 372 ; Pilcher v. Levino, 80 Hun, 399 ; 62 St. Rep. 42 ; Mandeville v. Avery, 124 N. Y. 377 ; 36 St. Rep. 338. We think none of the exceptions taken upon the trial present an error requiring us to interfere with the verdict.

Judgment and order affirmed, with costs.

.All concur.


text:
    Clarence G. T. Smith, Resp’t, v. Leopold Leo, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Pleading—Complaint—¡Sufficiency.
    A complaint, which alleges that, on defendant’s invitation, plaintiff presented himself at defendant’s dancing school on a certain evening for the purpose of dancing with defendant’s dancing class, at that time and place congregated, that the plaintiff was admitted to the hall occupied by the dancers upon payment by him to defendant of the sum demanded as the price of admission ; that after plaintiff made himself ready for dancing and had been in the hall some time, he was expelled from the hall by the defendant and that by reason thereof he was greatly injured in his good name, fame and credit, and brought into public scandal, infamy and disgrace, is sufficient.
    2. Same.
    As the plaintiff had, at the invitation of defendant, paid the admission fee and entered the hall, the defendant had no right to turn him out in the absence of sufficient cause.
    8. Damages—Measure—Tort.
    The measure of damages for the expulsion from a place of amusement includes indignity as well as amount paid for admission.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions.
    Tompkins & Cobb, for app’t; C. G. T. Smith and W. B. Estabrook, for resp’t.
   MERWIN, J.

—There are two questions that may be considered in this case—First, whether the complaint is sufficient; and second, whether the court erred on the subject of damages.

1. The complaint is somewhat indefinite. Still, its allegations are to be liberally construed, with a view to substantial j ustice. Code Civ. Proc. § 519. And it has been said that less strictness should be observed in considering objections to the complaint not made until the trial than if they were raised by demurrer. St. John v. Northrup, 23 Barb. 26. Facts may be impliedly averred. Marie v. Garrison, 83 N. Y. 23. In the complaint it is alleged that the plaintiff, upon the invitation of the defendant, presented himself at defendant’s dancing school on a certain evening, for the purpose of dancing with defendant’s dancing class, at that time -and place congregated; that the plaintiff was admitted to the hall occupied by the. dancers upon the payment by him to the defendant of the sum demanded as the price of admission; that after plaintiff made himself ready for dancing, and had been in the hall some time, he was expelled from the hall by the defendant, by the means of.the committing of which grievance by the defendant the plaintiff has been and still is greatly injured in his good name, fame and credit, and brought into public scandal, infamy, and disgrace with and among his associates and others, to the damage of the plaintiff of $2,500. Judgment for that amount was demanded. In substance it was alleged that the defendant had willfully deprived the plaintiff of the enjoyment of a right that he had purchased of the defendant The method of expulsion is not stated, but the word “expel” ordinarily means to drive or force out, or eject. So that the defendant impliedly, not only deprived the plaintiff of his right, but with indignity and disgrace put him out of the hall where, by his contract with defendant, he had a right to be. The action is quite analogous to that of a passenger for illegal removal from a railroad train, and is. we think, maintainable under the allegations of the complaint. The plaintiff having, at the invitation of the defendant, paid the admission fee and entered the hall, the defendant had no right to turn him out in the absence of sufficient cause. Magoverning v. Staples, 7 Lans. 145, 148; Drew v. Peer, 93 Pa. St. 234, 242. See, also, MacGowan v. Duff, 14 Daly, 315; McCrea v. Marsh, 12 Gray, 211.

2. A point is made by the defendant on the theory that the court allowed the jury to give exemplary damages. This, however, is not a correct assumption. Taking the whole charge together, the jury were only allowed to give compensatory damages, and there is nothing in the amount of the verdict that indicates that the jury did otherwise. The court, in effect, charged that the plaintiff might be compensated for the indignity and disgrace. In Hamilton v. Railroad Co., 53 N. Y. 25, which was an action for being improperly ejected from the defendant’s car, it was held that, as a part of the compensatory damages, there could be a suitable recompense'to plaintiff’s feelings. A like view was taken in Buck v. Webb, 58 Hun 184, 33 St. Rep. 824, and Fisher v. Railway Co., 34 Hun, 433, and the fact that no actual force was applied was not deemed to vary the rule. In 1 Sedg. Dam. (8th Ed.) p. 67, § 47, it is said: “Sense of insult or indignity, mortification or wounded pride, is a .subject of compensation. A common instance is where a passenger is wrongfully ejected from a railroad train,”—and numerous cases are cited. The difficulty in estimating such damages is no objection to their recovery. Id. p. 63, § 46. The plaintiff paid, as the price of his admission, $1.45, and the defendant claims that the recovery should be limited to that amount Upon this subject, the plaintiff having been limited in his recovery to the damages actually sustained by him, we think the court did not erf.

It is suggested by the defendant that the court, at the commencement of the trial in denying a motion by plaintiff to amend the complaint, limited the scope of the action in stating that it was an action for damages, under a contract, for being expelled from a hall. The most that the court held was that the plaintiff must stand by the complaint and the facts therein alleged. We find no sufficient ground for reversal.

Judgment and order affirmed with costs.

All concur.


text:
    Leonor Van Etten Taylor, Resp’t, v. William J. Welsh, as Executor, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Parent and child—Emancipation.
    Where the services of an infant are performed under an arrangement between the employer and the infant’s father, or between the employer and the infant with the assent of the father, that the infant should be compensated by will, that is, in substance, a relinquishment by the father of all claims for such services, and permits the infant, so far as that transaction is concerned, to work on her own account.
    3. Witnesses—Section 839 os the Code.
    Testimony by plaintiff, in an action against decedent’s estate for services, as to what she did, and as to the time when services were rendered, is incompetent under § 839 of Code.
    8. Appeal—Harmless error.
    Such evidence is not harmless, where it is a serious question in the case whether there was any expectation for payment for the services except such as the testatrix laight voluntarily choose to give, and it appears that, if the / services were of the character and extent testified to by paintiff it would be a • circumstance worthy of some consideration on the subject of a promise to ■' pay therefor, though the other evidence is sufficient to support the judgment.
    Appeal from a judgment entered in favor of plaintiff;
    ■ W. J. Welsh, in pro. per.; Arthur More, for resp’t.
   MERWIN, J.

—On December 13, 1893, the defendant’s testatrix died, being then about ninety years of age. In September, 1894, the plaintiff presented to the defendant a claim against the estate of the deceased in the sum of $320.45 for “ services rendered for staying with her from August 4, 1883, to October14, 1888, making five years and two months, at $1.25 per week

............................................$345 45

By cash.................. 25 00

_ $320 00”

_ .—The defendant doubted the justice of the claim, and thereupon, ^ by stipulation, with the approval of the surrogate, it was, under the statute, referred. In his report the referee finds that from, August 4, 1883, to October 4, 1888, the plaintiff attended upon the testatrix, “slept with her nights, done errands for her, emptied ashes, brought in coal, shovered snow, done a great many things for her, all at her request, and for which she' said she would satisfy plaintiff in her will” ; that the services so rendered were reasonably worth the sum of $1.25 per week; that the plaintiff, at the time the services were rendered, was an infant residing with and supported by her father, and at the time she completed the services was about eighteen years of age; that “ the father of this plaintiff, upon the promise made by the said testatrix that she; would satisfy plaintiff for said services in her will, consented that the plaintiff might perform such services, and such promise was made by the testatrix direct to the father, and he makes no claim for such services, and never has made any claim for them” ; that the testatrix made no provision for plaintiff by her will; that the testatrix, at the time of her death, was indebted to the plaintiff in the sum of §310 for the services so rendered, and the claim was not due till the death; that the payment of the claim was unreasonably resisted by the defendant. As matter of law the referee decided “ that the father of said plaintiff, by consenting that plaintiff might perform such services, and be compensated by the testatrix satisfying plaintiff therefor in her will, in effect agreed that plaintiff was to have the pay for the services só performed as aforesaid for her own use and benefit, and be is es-topped from ever claiming pay for said services himself ” ; that the plaintiff was entitled to recover the sum of $310 and the costs of the action.

It is claimed by the defendant that plaintiff is not entitled to recover, for the reason that at the time the services were rendered she was an infant, residing with and under the control of her father. We are, however, inclined to the opinion that, if the services were performed under an arrangement between the deceased and the father, or between the deceased and the plaintiff, with the assent of the father, that the plaintiff should be compensated by will, this was in substance a relinquishment by the father of all claim for such services, and permitted the plaintiff, as far as that transaction was concerned, to work on her own account. The legacy, if one had been given, would have belonged to plaintiff, and, if so, the debt for which the legacy was to be given should be considered as belonging to her also. See Stanley v. Nat. Union Bank, 115 N. Y. 134; 23 St. Rep. 966; Kain v. Larkin, 131 N. Y. 313; 43 St. Rep. 197; Shirley v. Bennett, 6 Lans. 515; Lind v. Sullestadt, 21 Hun, 366; Schouler, Dom. Rel. (2d Ed.) 346. Whether the evidence in the case was sufficient to establish such an arrangement is not necessary here to determine, in view of our opinion on another feature of the case. At the trial the plaintiff was called as a witness in her own behalf, and was allowed to testify as follows, over objection and exception properly taken that the evidence was inadmissible under section 829 of the Code:

“Q. Did you attend her (the testatrix) in her lifetime, and stay with her nights for a considerable time? A. I did. Q. When did you commence ? A. August 4, 1883, and I left there on or about October 4, 1888. Q. What did you do there ? A. I stayed there with her nights, done.errands, emptied ashes, brought in coal, shoveled snow, and a great many things. I did many errands for her about town.”

This evidence involved transactions and communications between the plaintiff and the deceased, and very clearly it was within the prohibition of section 829. Campbell v. Hubbard, 38 Hun, 306; Heyne v. Doerfler, 124 N. Y. 505, 510; 36 St. Rep. 497; Ross v. Ross, 6 Hun, 182. It is, however, urged by the plaintiff that without this evidence there is enough in the case to sustain the judgment. The referee, in his finding of the character and extent of plaintiff’s services, evidently followed the testimony of plaintiff. It not only had a material bearing on the question of the value of the services, but also as to the- probability of the existence of an arrangement for compensation by will. It was a serious question in the case whether there was any expectation for payment for the services except such as the testatrix might voluntarily choose to give. If the services were of the character and extent testified to by plaintiff, it would be a circumstance worthy of some consideration on the subject of a promise to pay therefor. It should not be said that the evidence was harmless. The exception to the admission of this evidence is, we think, a good one and calls for a new trial."

A point is made by the appellant as to the Statute of limitations, but it is not claimed that that defense would be effective if there was an agreement to compensate by will. Quackenbush v. Ehle, 5 Barb. 472. The appellant also claims that the referee improperly found that the claim had been unreasonably resisted, and so awarded costs. There seems to be some plausibility, at least; to this contention, but it need nob be considered now.

Judgment reversed, and new trial ordered; costs to appellant to abide the. event

All concur.