text:
    WILLIAM G. BUTLER, Respondent, v. THE CITY OF ROCHESTER, Appellant.

      Chap. 262 of 1859—presentation of claim to common council—when a compliance with requirements cf— costs.

    A presentation of a claim against a municipal corporation to the common council thereof, is a sufficient compliance with chapter 262 of 1859, especially when the corporate powers - are so distributed that the officer, who, from his duties, might be assumed to be the chief fiscal officer of the corporation, has no power to pay the claim if presented to him. ' - ® ;
    This is an appeal by defendant from an order made by Judge Dwight at the Monroe Special Term, denying a motion for retaxation of costs.
    The defendant claimed that the demand upon which the above suit was brought, should have been presented to the city .treasurer for payment before suit brought.
    The plaintiff claims that a presentation of the demand to the common council of defendant was proper, and that it was not necessary to present it to the city treasurer. The referee fora that the demand was presented to the common council of defenda: before suit brought and was refused.

      James Break Perkins, for the appellant.

      John W. Kelly, for the respondent.
   Gilbert, J.:

The intention of the legislature in enacting the statute, ehapt 262 of 1859, is manifest. It was to prevent the recovery of coe against municipal corporations, in cases where the creditor had n afforded the corporation an opportunity to pay before bringing I: action. That opportunity was given in this case. The claim w presented to the common council, who alone could authorize i payment, and it was rejected. The treasurer is a subordina officer. The relation between him and "the common council, matters of this kind, resembles that of an agent to his princip: and a presentation to the higher authority is equivalent to one the lesser. The presentation of the claim to the treasurer, after t' common council had refused to pay it, would have been an id ceremony. The statute does not require a supererogatory act. 1 treasurer was the chief fiscal officer, he was not authorized to ps He was not therefore the officer whom the statute, upon a fair co struction, designated. For, when the corporate powers have be so distributed that the officer who, from his duties, might language is, that the claim must be presented/^ payment. If t regarded as the chief fiscal officer, has no authority to pay a creditor when his claim is presented, he is not such an officer within the meaning of the statute.

The order appealed from should be affirmed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order affirmed, with ten dollars costs.

       McClure v. Supervisors, 50 Barb., 594; S. C. in Court of Appeals, 4 Abb. (N. S.), 202.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    JOHN ORTNER, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Perjury in affidavit annexed to claim against municipal corporation — what must he averred in indictment for.

    A prisoner was convicted of the offense of willfully and corruptly swearing false in an affidavit made for the purpose of obtaining audit of an unliquidated claim against the city of Buffalo, pursuant to the statute, which statute makes false swearing in an affidavit authorized by the act perjury. It was not averred in the indictment that the affidavit was authorized by the charter, or that it was made for the purpose required thereby, or that the claim to which it was appended was ever presented to the common council for audit. Held, that the indictment was fatally defective.
    Wbit of error to the Court of Sessions in and for the county of Erie. During the trial a motion was made to quash the indictment for the reasons stated in the opinion, which motion was denied.

      Lewis & Gurney, for plaintiff in error.
    The indictment is bad for not alleging that it was necessary for Ortner to make this affidavit in order to collect his demand for repairing the outlet to the Georgia street sewer. This must appear from the indictment. (The People v. Gaige, 1 Green Ch., 524; People v. Allen, 5 Denio, 76; Dawson v. The People, 25 N. Y., 399.) If it was not necessary to make the affidavit, then it is extra-judicial and lays no foundation for perjury. (U. S. v. Babcock, 4 McLean, 113; The People v. Jacob Travis, 4 Parker Cr., 213; Com. v. Pickering, 8 Gratt., 628; State v. Ellison, 8 Blackf., 225; Williams
      v. State, 7 Humph., 47.) The forms of indictments for perjury upon affidavits, require an allegation that the party who administered the affidavit had authority so to do. (1 Archb. Crim. Pl. and Ev. [Lond. ed.], 566, 567; 2 Bishop on Criminal Procedure, §§ 844, 845, 846.) The indictment must proceed by particular averments to negative the allegations charged to be false, and must show the defendant guilty of the offense charged. (2 Archbold Cr. Pl. and Pr., 965, note; State v. Bishop, 1 Chipman [Vt.], 120; Dodge v. The State, 4 Zab., 455.) The indictment must state all the facts necessary to make the defendant guilty of the offense charged, and- if it does not do that, it is bad in substance. The indictment in this case does not show the defendant guilty of any offense punishable bylaw, and cannot he helped by an intendment, inference or guess. (People v. Allen, 5 Denio; Dawson v. The People, 25 N. Y., 399 ; Wharton’s Am. Crim. Law, § 379 [6th ed.] ; Reynolds v. The State, 2 Nott & McCord, 365 ; State v. Barber, 18 Vermont, 195; State v. Keen, 34 Maine, 500 ; State v. Godfrey, 24 id., 232; Metzer's Case v. Hill, 5 Gratt., 682; State v. Foster, 11 Iowa, 291.) The writ of error in this case brings up all the questions we here seek to review. (3 R. S., pp. 1033 to 1036 ; People v. Blakely, 4 Parker Cr., 176.) The rule in regard to granting new trials upon the ground of newly discovered evidence, is the same in criminal as in civil cases. (1 Graham & Waterman on New Trials, 481.)

      Benjamin H. Williams, district attorney.
    The granting of a I motion to quash is discretionary with the court, and error does not! lie for its refusal. (Wharton’s Crim. Law, 519; Com. v. Eastman, 1 Cush., 189 ; State v. Putnam, 38 Maine, 296; Lambert v. People, 7 Cow., 535.) The indictment is sufficient. The perjury con-T sisted in swearing false in an affidavit authorized by section 7, of title 3, of the charter of the city of Buffalo. (Chapter 519 of Session Laws of 1870.) That section requires' claims against the city of Buffalo to be made out in a certain form, and that the4 shall not be received for audit unless made out in such form, and accompanied by the affidavit prescribed in said section. It was nol necessary to show that the city or any person had been defrauded (King v. Crossly, 7 T. R., 351; 1 Hawk. P. C., 69, § 9.) It was nol necessary that the law should have required Ortner to make the affidavit for the purpose of collecting his claim. It is sufficient if the affidavit was one authorized by the charter of the city. (Charter of Buffalo, title 16, § 11; chap. 519, Session Laws of 1870.) It is sufficient to allege the substantial and specific facts constituting the perjury. (Tuttle v. People, 36 N. Y., 431; People v. Phelps, 5 Wend., 9; People v. Warner, id., 271; People v. Tredway, 3 Barb., 470 ; 2 Chitty Crim. Law, 307; Campbell v. People, 8 Wend., 636.) If the indictment contains the substance of the offense, and informs the defendant of the allegations against him, it will be upheld. (5 Wend., 20; 8 Barb., 552; 22 N. Y., 150; 2 Rev. Stat., 720, § 52; King v. Dowlin, 5 T. R., 318.)
   Gilbert, J.:

The gist of the offense of which the prisoner was convicted, consists of willfully and corruptly swearing false, in an affidavit made for the purpose of obtaining an audit of an unliquidated claim which he had against the city of Buffalo, by the common council of that city, pursuant to section 7 of title 3 of the charter thereof. That section prohibits the common council from auditing any such claim, unless it be made out in detail, with certain prescribed specifications, nor unless accompanied by an affidavit that the claim and the items and specifications thereof, are in all respects just and correct. Section 11, of title 16, provides, that every person who shall willfully and corruptly swear false to any material fact in any affidavit authorized by the act, shall be guilty of perjury.

It is not averred in the indictment, that the affidavit was authorized by the charter, nor that it was made for the purpose required by section 7 of title 3, nor that the claim to which it was appended was ever presented to the common council for audit. The averment is, that the prisoner caused his bill to be presented to Hr. Ditto, the engineer, and that he made the affidavit before Hr. Pierce, who was a commissioner of deeds and a clerk in the office of the engineer. But it is not averred that it was any part of Hr. Ditto’s duties to receive the bill, or that he in fact received it for any purpose connected with an audit. Without the averments omitted, or equivalent ones sustained by proof, the offense would not be made out; for if the affidavit was made for any other purpose than that of obtaining an audit of the claim, and was misapplied, it was not authorized by the charter, and perjury could not be assigned upon it under section 11 of title 16. It is a familiar rule, that if the indictment does not set forth the facts requisite to constitute the offense charged, a conviction upon it must be reversed. '

The provisions of the Revised Statutes which define the crime of perjury, cannot be applied to the case. It would not, under any circumstances, fall under subdivision 1 of that section. It might possibly fall under subdivision 12, if the indictment contained an averment that the affidavit was necessary in the prosecution of a private right of the prisoner. But the indictment does not show that fact. The learned district attorney replied to the objection that the indictment was defective, by referring us to the third subdivision of that section, which applies to a case where any oath may be lawfully required by any administrative officer. There are three answers to this : First. The oath was not in fact required, but was made voluntarily; nor does it appear that Mr. Pierce, who took the affidavit, was authorized by the common council, or that it was his duty as a city officer, to make such a requisition ; or that there is any law conferring such authority upon him. Second. It could not lawfully be required, but it was optional with the prisoner whether he would make" the affidavit, or forego the audit of his bill. Verifying it without the purpose of having it presented for audit, would not be an offense. Third. The administrative qfficers, referred to in subdivision 3, are those enumerated in title 5 of chapter 5, part 1, of the Revised Statutes, and Mr. Pierce’s functions do not bring him within that class, for he was not an administrative officer of any sort, but a clerk- only in the office of the engineer.

We are satisfied that the indictment is insufficient, and for that reason the conviction must be reversed; and, as no conviction can legally be had upon it, the prisoner must be absolutely discharged,

Present — Mullin, P. J., Smith and Gilbert, JJ..

Judgment reversed, and prisoner discharged.

      2 Laws 1870, 1179, § 7,

       2 R. S., 681, § 2.

       2 R. S., 741, § 24.


author: E. Darwin Smith, J.

text:
    GEORGE W. NICHOLAS and AMOS A. NEWSON, Respondents, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Common ca/rri&r—when contract sufficient to exempt from liability for negligence.

    Where the plaintiff, at the time of shipping certain quince trees, released the defendant from all liability for “damage to perishable property of all kinds, occasioned by delays from any cause, or change of weather * * * or loss or injury by fire or water, heat or cold:” held, that the defendant was not liable for the damage caused by the freezing of the trees, though such freezing occurred through its own negligence.
    Appeal from an order made at Special Term, denying a motion for a new trial, in an action tried at the Ontario Circuit in February, 1873, where a verdict was rendered in favor of the plaintiffs.
    The action was brought to recover damages for the loss of a quantity of quince stock, claimed to have been destroyed by frost through the negligence of -the defendants. The stock was shipped in New York, March 4, 1872, and consisted of fifteen cases of trees delivered to the company on the said fourth of March, and arrived at Geneva, the place of destination, on the twelfth of the same ' month. The proofs show that a. heavy snow-storm began on the said fourth of March, and continued for several days thereafter, blocking up the defendant’s road westwardly of Utica, and at Syracuse particularly, accompanied by very cold weather. When the property was delivered at the defendant’s depot, in New York, the plaintiff executed an instrument of release which recited the fact of the said shipment, and released the defendants, among other things, from all liability for any loss or “ damage to perishable property of all kinds, occasioned by delays from any cause or change of weather; ” also, for “ breakage or chafing, or loss or injury by fire or water, heat or cold.”
    At the close of the evidence the defendant’s counsel asked the court to nonsuit the-plaintiff on the ground that, by the terms of the said contract, the defendant was absolutely discharged from the claim of damages mentioned in the complaint, irrespective of the question as to whether it was occasioned by the neglect of the defendant or otherwise, and also asked the court to direct a verdict for the defendant on the same ground, which motions the court denied respectively, and the defendant’s counsel duly excepted.
    The case was submitted to the jury, who found a verdict for the plaintiff for $2,000 damages.
    The defendant’s counsel excepted to the charge upon the same ground stated in the motion for a nonsuit, and moved for a new trial at Special Term, which was denied.

      E. G. Lapham, for the appellant.
    The release in question exempted the defendant from liability for want of ordinary care. (7 Alb. L. J., p. 15, citing 27 L. T. R.; also p. 10 of same vol. ; 42 Barb., 102; French v. R. R. Co., 4 Keyes, 108; Keeny v. R. R. Co., 59 Barb., 104; Cragin v. R. R. Co., 51 N. Y., 61.)

      Theodore Sill, for the respondents.
    The alleged release does not extend to negligence of the defendant, its servants or agents. (Alb. L. J., Dec. 13, 1873, pp. 371, 372, and cases there cited; 44 Barb., 665 ; 25 N. Y., 442; 1 Kern., 485; 24 N. Y., 222; Alb. L. J., May 30, 1874, p. 357; id., Nov. 15, 1873, and cases there cited.)
   E. Darwin Smith, J.

The issue submitted to the jury was, simply, whether the loss of the plaintiff’s quince stock was caused by the defendant’s negligence. The judge stated to the jury that the gist of the action was the alleged negligence of the defendant, and that if they came to the conclusion, in view of all the evidence, that the freezing — the injury to the trees — was the result of neglect — of the want of due care on the part of the employes of the railroad company, the plaintiff was entitled to recover. No complaint is made that the judge did not direct or allow the jury to take into consideration all the facts relating to the snow-storm and the extreme cold weather accompanying the same, so far as such facts furnished an excuse for delay in the delivery of said property and repelled the charge of negligence. The verdict of the jury must therefore be deemed a conclusive finding against the defendant on the issue of negligence.

The only question for our consideration is, therefore, the same raised, discussed and decided at the Circuit: whether the instrument of release, executed by the plaintiff, includes this question of negligence, and discharges the defendant from all loss and damages consequent therefrom.

It is well settled in this State and country that a common carrier may, by express contract, limit his common-law liability as an insurer, in respect to property received by him for transportation, as against all loss and damage, however occasioned, except as against his own persona] negligence or fraud. The cases in this State which assert and sustain this doctrine have recently been reviewed and considered in the United States Supreme Court, in the case of Railway Company v. Lockwood, in an elaborate opinion by Judge Bradley, in which he questions the soundness of these cases so, far as they allow the carrier to exonerate himself by contract for his own negligence or that of his servants. If the courts of this State have erred in relaxing too far the rule of the common law on this point, they have done so in a large degree from respect to the decision of the Supreme Court of the United States, in the case of the New Jersey Steam Navigation Co. v. Merchants' Bank, which they have generally followed and regarded, as it is, the leading case on this subject. The cases of this State have uniformly held that a contract of a carrier, exempting himself from liability for loss or injury in the carriage of goods, should not be deemed to include negligence by any general words, nor unless the contract, in clear and explicit terms, embraces negligence. In this particular, too, they have followed the case of New Jersey Nav. Co. v. Merchants’ Bank, in which Judge Nelson said: “ If it is competent at all for a carrier to stipulate for the gross negligence of himself and his servants or agents in the transportation of goods, it should be required to be done, at least, in terms that would leave no doubt as to the meaning of the parties.” The release in this action, set up by the defendant, does not, by its terms, embrace negligence, or purport to discharge the defendant from loss or damage caused by or resulting from the negligence of the defendant, its agents or servants. The question, therefore, arising upon such release, is, whether it does not necessarily embrace - negligence to give it any real or practical effect. It must do so, as Judge Nelson states the rule, in terms that would leave no doubt as to the meaning of the parties.” In the said instrument of release, the plaintiff, in express terms, “ releases the defendant from liability for loss or damage to perishable property of all kinds, occasioned by delays from any cause, or change of weather; ” also, for damages or loss from breaking or chafing, or loss or injury by fire or water, heat or cold.” The' loss or damage in this case was clearly occasioned by “ delays,” by change of weather, and by cold. All three of these elements or causes of loss and damage, are expressly mentioned in the release, and are particularly and expressly released and discharged. It is difficult to give any force to these terms in the release, which shall leave the defendant liable for negligence from such causes. The property was perishable. The defendant, in respect to such property, would not be liable at common law for loss by heat dr cold, unless it or its servants were guilty of some negligence in its care or dispatch. For mere delay in its transportation, the defendant is discharged. This was really the only ground, of complaint, and would constitute the only basis for a cause of action, independent of this release. While these trees were in the process of transportation by the carrier, they were injured and destroyed by cold— by change and severity of weather. This was an act of God, against which the defendant could not guard, and in respect to which it was not responsible. The case seems to me to fall completely within the rule asserted in Cragin v. The New York Central R. R. Co. In that case the contract stipulates, in regard to a lot of hogs transported from Buffalo to Albany by the defendant, “that the defendant should not be liable for any loss or damages which might be sustained by reason of any delays, or in consequence of heat, suffocation or ill effects from being crowded.” The hogs, for the loss of which the action was brought, died from the effects of heat, the result of the negligence of the defendant’s agents id not watering, wetting, washing and cooling off said hogs on the way to their destination. The Commission of Appeals held that, to give any effect to this stipulation, it must be held to be intended to exempt the defendant from negligence, in consequence of which the hogs died 'from heat. I do not see how the two cases can be distinguished. The damage in this action was the result of cold) and, in the case of Cragin, it was the result of heat. The parties must have intended that the release should have some effect. The particular risks are specified in the release, and the contract must be applied to the risks particularly named, and to which the property, at that season of the year when it was made, was especially exposed. The plaintiff stipulated, in consideration that the defendant received and carried such property, liable to extra hazard, at ordinary tariff' rates, to release them from the risks in question.

This release should be considered and construed, like all other contracts, in view of the facts existing when it was made. The plaintiffs’ quince trees were presented for shipment at the defendant’s depot in New York, on the fourth of March. They were perishable property, and were liable to be injured or destroyed by freezing. It was essential, therefore, to their preservation in the then state of the weather, which was very cold and growing colder, that they should be forwarded to their place of destination, where they could be housed and protected, with dispatch. The defendant’s agents, understanding these facts as well as the plaintiff, acted in reference to them, and caused the car containing these trees to have attached to it a large card, nailed to the door and marked : “ Perishable property; hurry through. This car must not he detained.” And, also: “ If this car is disabled transfer the property and hurry forward.” Also one other large card marked: Trees, perishable, hurry through.” These cards indicate the exigency of the case, as related to said trees, as understood by both parties at the time. With the knowledge that these instructions were thus given, and upon the assumption that they would be observed and obeyed by the agents and employes of the defendant with ordinary care and diligence, the plaintiff might not unreasonably execute the release in question, and take upon himself all the risks attending the transportation of said trees from New York to Geneva. At least, the release was executed by him under these circumstances, and is before us. We can only hold that it, by its explicit terms, does clearly and necessarily include all negligence committed by the agents and. employes of the defendant in the charge and transportation of said property, which occasioned its loss.

If the Supreme Court of the United States is right in the view as stated in one of the conclusions in the case of Lockwood, that it is not just and reasonable, in the eye of the law, for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants, the law can now only be changed in this State by. an act of the legislature, as it has been in England by an act of parliament, passed in 185i, called the railway and canal traffic act.

The order denying the motion for a new trial must therefore be reversed, and a new trial granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Morgan, JJ.

Order reversed and new trial granted, costs to abide event.

       To wit: Dorr v. The New Jersey Steam Nav. Co., 1 Kern., 485; Parsons v. Monteath, 13 Barb., 353; Welles v. N. Y. C. R. R. Co., 26 id., 641; S. C., 24 N. Y., 184; Smith v. Same, 29 Barb., 132; 24 N. Y., 222 ; Bissell v. Same, 29 Barb., 602; S. C., 25 N. Y., 442 ; Poucher v. Same, 49 N. Y., 263; Perkins v. Same, 24 id., 196, and others.

       17 Wall., 366.

         6 How. (U. S.), 384.

        Swpra.

       Page 383.

       51 N. Y., 61.

       17 Wall., 366.


author: Morgan, J.:

text:
    HIRAM RAY, Respondent, v. HORACE H. ADAMS and others, Appellants.

      Judgment — lien of, as against subsequent mortgage—purchase-money mortgage — party advancing money to pay for land und&r an agreement that it should hi secured hy mortgage thereon.

    One Eeese, who held a contract for the purchase of certain land, applied to the plaintiff, whom he already owed $500, for a loan of $500 more, to enable him to pay up his contract, agreeing to secure the whole amount, $1,000, by a mortgage to be executed upon the land as soon as it was conveyed to him. The day after the land was conveyed to Eeese he deposited the deed with the plaintiff to hold as security for the $1,000, and about a year afterward executed a mortgage to him for that amount. The mortgage and deed were recorded the same day. Prior to the date of the conveyance to Eeese, one Adams had recovered a judgment against Eeese. Held (1), that as to the $500 advanced for the purchase of the land, the lien of the mortgage was prior to that of the judgment; (2), that as to the prior debt of $500, included in the mortgage, the judgment was entitled to priority.

      Appeal from a judgment for plaintiff at Special Term. The facts found by the court are set out in the case substantially as follows:
    The defendant Reese held a contract for the purchase of certain lands in the town of Le Ray, Jefferson county, on which he had paid $100; and there remained unpaid $900, which was to be paid before he should be entitled to a deed. In March, 1870, he applied to the plaintiff, Ray, for a loan of $500, to enable him to pay up the contract. Reese already owed Ri-.y $500, previously loaned. Ray agreed to make the loan upon condition that Reese would, when he acquired the lands, give him a mortgage on said premises to secure the payment of both sums. Reese took the loan of $500, and the same was paid toward the purchase-price of said land; and Reese took a conveyance of said land under his contract of purchase, March 1, 1870. The next day he placed the deed in the custody of Ray, to hold as security for the $1,000, and the interest, until the mortgage should be executed. On the 7th day of January, 1871, Reese executed the mortgage, and both the deed and mortgage were recorded on the same day. There was a judgment obtained, and docketed in Jefferson county against Reese, May 3, 1865, for $132.05, subsequently assigned to the defendant Horace H. Adams. Before the commencement of this action, an execution was issued upon the judgment, and it appears from the testimony of the sheriff, that he advertised this land for sale, but was prevented from selling it by an order of injunction, granted in this action.
    This action was brought to foreclose the plaintiff’s mortgage, and for a judgment declaring it an equitable lien on said premises prior to the lien of the said judgment. The court decided in favor of the plaintiff, and judgment was entered accordingly.
    The defendants’ counsel excepted to the decision. He also requested the court to decide that the plaintiff’s mortgage, embracing an old debt of $600, could not be regarded as a purchase-money mortgage, except for the loan of $500 advanced to pay toward the purchase-price. This the court declined to hold, and. the defendants’ counsel excepted.
    The defendants’ counsel insisted that the mortgage could not, in any event, be regarded as a lien precedent to the judgment, beyond the $500. The court declined to hold in accordance with defendants’ request in this respect, and the defendants’ counsel excepted.

      F. W. Hubbard, for the appellants.

      Levi H. Brown and M. Ballard, for the respondent.
    An agreement for a mortgage is in equity a specific lien on the land. (In Matter of Howe, 1 Paige, 125, and cases there cited; 6 Johns. Ch., 402; Story’s Eq. Jur., § 790, 791,792, 793; Willard’s Eq. Jur., 567; Griffin v. Bennett, 4 Edw. Ch., 673; In Matter of Howe, 1 Paige, 125, 129, 130.) By advancing money to pay the purchase-money under the circumstances and agreement, Ray acquired like equities, and his mortgage the same priority as to the general lien of judgments against the vendee, as would the vendor on taking a mortgage on sale to secure payment of purchase-money, at least to the extent of the loan, although Ray’s mortgage was not in fact or literally a “ purchase-money mortgage.” (Jackson ex dem. v. Austin, 15 Johns., 477; Tallman v. Farley, 1 Barb., 280; Heywood v. Nooney, 3 id., 643; Chase v. Peck, 21 N. Y., 585; Lane v. Ludlow, 6 Paige, 316; Parker v. Jackson, 11 Wend., 442.) What, in good conscience, ought to have been done in execution of the agreement to protect the rights of the plaintiff and secure him for money parted with, equity will regard as done. (In Matter of Howe, 1 Paige, 125; Willard’s Eq. Jur., 47, 298, 299 ; Lanning v. Tompkins, 45 Barb., 308, 316; Burch v. Newbury, 1 id., 648, 664.)
   Morgan, J.:

It is very difficult to find any principle in the adjudged cases, upon which the judgment in this action can be sustained. The liens of judgments are declared by statute. And it is also provided that, “ whenever lands are sold and conveyed, and a mortgage is given by the purchaser at the same time, to secure, the payment of the purchase-money, or any part thereof, such mortgage shall be preferred to any previous judgment which may have been obtained against such purchaser.” The same provision was contained in the Revised Laws; and it was decided in Jackson v. Austin, that this preference over a prior judgment is not restricted to the case of a mortgage to the vendor of the land; but if the purchase-money be advanced by a third person, to whom the purchaser, at the same time that the conveyance is executed to him, executes a mortgage of the same land to secure the money advanced, such mortgage is entitled to the same preference over a prior judgment as the vendor of the land would have had, had the mortgage been executed to him. It was decided that such a mortgage to a stranger for purchase-money, is within the terms of the statute. Under this decision, it is plain that the plaintiff here cannot be regarded as embraced within the terms of the statute giving his mortgage priority, for it was not executed at the same time as the conveyance.

As to the. deposit of the deed with the plaintiff by way of security until the mortgage should be executed, if it should be regarded as an equitable mortgage, it appears that the deposit was not in fact made until the next day after Reese obtained the conveyance ; and in the mean time the judgment became a lien prior in point of time to the deposit of the deed. That feature.of the case may be disregarded- entirely, for it is obvious that the subsequent mortgage is just as good as the deposit of the deed, to create a lien. Both were subsequent to the conveyance. Indeed, if the mortgage had been executed the same day of the deposit of the deed, it would not in any way change the rights of the parties. In either case the lien of the judgment creditor would attach before the deposit of the deed, or the making of the mortgage. It is enough, perhaps, to say of this deposit by way of security, that it is not sufficient .to create an equitable mortgage, for it was not an actual, immediate and bona fide deposit of the title deed with the creditor, when the loan was made. It may, however, be regarded as some evidence of the agreement to give a mortgage.

It is said, that when the conveyance and incumbrance of the land are simultaneous, no opportunity is given for the judgment lien to attach. But it has been held, that if, upon acquiring the land, the judgment debtor immediately executes a mortgage, not for the purchase-money, the lien of the mortgage will be subordinate to that of the judgment. Some other reason must be found, therefore, for giving precedence to a purchase-money mortgage, than that of simnltaneousness. Hence it is said that a purchaser who has paid only a portion of the sum contracted to be paid, has no title which is not liable to be subjected to the lien of the vendor for unpaid purchase-money. It is argued that the mortgage for unpaid purchase-money represents an interest in the land, never in fact owned by the incumbrancer; and it is said this gives it precedence over judgment liens of anterior date.

The statute already cited, seems to recognize the doctrine, that only a simultaneous mortgage for the purchase-money will displace the lien of a prior judgment against the vendor; but courts of equity have long asserted the priority of the vendor’s lien for the unpaid purchase-money, as against prior judgment creditors and subsequent purchasers affected with notice. This lien, when it has not been waived, would allow the vendor of land to enforce it for the unpaid purchase-money, as against the prior creditors of the vendee. Nor do I see any reason why the taking of a mortgage subsequent to the conveyance, should place the vendor in a worse condition than he would be in if he had relied upon his implied lien. But no authority can be found, I think, which would allow the vendor in such a case to tack another debt to his mortgage, and make it a lien to take effect prior to a former judgment against his vendee. There is, in my opinion, no ground for holding that a precedent debt, not for purchase-money, can be incorporated into a mortgage so as to displace a prior judgment, even if given simultaneously with the conveyance. The contrary has been held in Root v. Curtis. Much less can it be claimed that such a mortgage, given by the vendee subsequent to the conveyance to him, can operate to defeat the lien of a prior judgment.

The judgment of the Special Term is therefore erroneous, so far as it gives priority to the old debt of $600. It was not claimed to have been advanced as purchase-money, for only $100 had been paid on the contract when the $500 loan was made. There is doubtless more difficulty with the other question, and I do not propose to discuss it at length. It may be unnecessary to decide it, as doubtless the judgment must be satisfied without regard to the lien of $500. That there is some ground for asserting the priority of lien as to the loan of $500, will be readily conceded. I have assumed that it might be asserted in favor of the vendor; and perhaps, in case of accident, fraud or mistake, in favor of a stranger who advances the purchase-money upon an agreement of the vendee for a mortgage simultaneously with his obtaining the title. Though the mortgage is not given till long afterward, perhaps a court of equity would regard that as done which was agreed to be done, and at the time it was to be done. As against judgments which are general and not specific liens on the debtor’s estate, the claim of a stranger who has advanced money to the debtor to help him purchase the lands, under an agreement for a mortgage as security on the same lands when obtained, stands upon strong grounds of equity, and unless he has lost his preference by his neglect to take a simultaneous mortgage, there is no reason why he should not be preferred over a prior judgment creditor. Whether the courts in this State will establish such a doctrine, remains to be seen.

There are decisions which seem to be adverse to extending these equitable liens, or multiplying them so as to embrace doubtful cases. The case of Griffin v. Burtnett, cited by the respondent’s counsel, is apparently in favor of the claim to priority as to the $500 loan. But the vendee in that case worked out his claim through a mortgage to secure future advances for improving the property, which was prim' in point of time to the judgment. Another person than the mortgagee made the advances upon the security of his mortgage, and he was adjudged to have a prior equity. The mortgage was prior to the judgment, but the moneys advanced were subsequent. Without the aid of this prior mortgage, which contemplated these advances, there is no ground of equity stated, upon which the preference could be sustained. Indeed, the case of Cook v. Banker would reject this claim to priority, if it was founded simply-upon an agreement to give a mortgage. In Tallman v. Farley the subsequent mortgagee had advanced money on the credit of the land; and, upon obtaining title, the mortgagor at the same time executed the mortgage. But Edmonds, J., in delivering the opinion of the court, says: “If the judgment creditors could find a moment of time in which their debtors had a right to sell or incumber the premises in preference to the claim of the second mortgagees, they might perhaps find some aliment on which their legal claim might be fed.” Haywood v. Nooney, was a case within the decision of Jackson v. Austin, and does not profess to decide anything more. Other cases are cited by the respondent, but I am of opinion that they do not decide the question in favor of the plaintiff. No case has been cited in this State, which recognizes an equitable lien in favor of a stranger who advances a portion of the purchase-price. It is not pretended that he can proceed in equity to establish a lien, as the vendor may, for unpaid purchase-money. His claim must therefore rest entirely upon the agreement for a lien. The statute comes to his aid if he has- taken a simultaneous mortgage for money advanced to pay for the land. If be neglects to take such security until the lien of a former judgment attaches to the land, he is remediless, unless he is able to make a case for a court of equity to relieve him by declaring that to be done which ought to have been done at the time. I see nothing in this case to call upon a court of equity to give effect to the subsequent mortgage, as though it had been executed when it was agreed to be executed. If the deposit of the deed had been made at the very time of obtaining it, that might have operated to create a simultaneous lien. Can J it be regarded as having been made at the same time, although defer-1 red till the next day? I well see that there may have been some] reasonable excuse for it; but none is proffered in this case; and no] fraud or "accident is alleged, which calls upon the court to interfere] and declare that what was done afterward should be treated as| though it had been at the time agreed upon.

In my opinion it is a case of simple neglect or carelessness ; and! courts do not relieve parties who lie by and allow other creditor?! to gain-a legal advantage. But it has been held that a farol agree] ment to deposit or mortgage will not be enforced; nor will equitu consider that as done which ought to be done, unless the court has authority to order that the act be done.

Now, I am opposed to extending our jurisdiction to doubtful eases, and reaching out to see if we cannot find some plausible excuse for creating an equity which will deprive a creditor of his legal advantage. The' judgment is clearly erroneous in relation to the $600 included in the plaintiff’s mortgage; and, in my opinion, there are no grounds of equity stated in the pleadings, or proved on the trial, which will uphold the judgment as to any part of the plaintiff’s mortgage.

The defendant Adams has, by the neglect of the plaintiff, obtained a prior lien on the lands ; and I have found no well considered authority which calls upon this court to deprive him of it in favor of a subsequent mortgagee.

On both grounds I think the judgment should be reversed and a new trial granted, costs to abide the event.

Mullin, P. J., and Smith, J., concur in the opinion as to the old debt secured by the mortgage, but are of opinion that the judgment is right in preferring the loan of $500. The judgment must, therefore, be modified accordingly, and as modified affirmed, without costs of appeal to either party.

Judgment modified, and as modified, affirmed, without costs of appeal to either party.

      2 R. S., 359, §3.

       1 R. S. (Edm. ed.), 700, § 5.

       1 R. L., 375, §15.

       15 Johns., 477.

      2 Story’s Eq. Jur., § 1020.

       See Freeman on Judgments, § 373, and cases, there cited.

       38 Ill., 192; and see Freeman on J., § 378; Dwight v. Newell, 3 Comst., 185.

       See, however, Hilliard on Mort., 599, 600, and notes.

       See 2 Story Eq. Jur. (11th ed.), §§ 1227,1228, and notes.

         See Meech v. Allen, 17 N. Y., 300; Cook v. Kraft, 60 Barb., 409; Cook v. Banker, 50 N. Y., 655.

       4 Edw. Ch., 673.

       50 N. Y., 655.

       1 Barb., 280.

      3 Barb., 643.

       15 Johns., 477.

         Jackson v. Austin, supra.

       4 Kent, 151, and cases cited; 2 Story Eq., §1020; 1 Hilliard on Mort., 600.

       1 Hilliard, 600, note (a), citing Clabaugh v. Byerly, 7 Gill, 354.


text:
    CHRISTINA GUNDLACH, Respondent, v. THE GERMANIA MECHANICS’ ASSOCIATION, Appellant.

      Corporation — Benevolent society—powers of—amendment to a/rtides of association— when not retroactive.

    A corporation whose general purpose is declared to be the welfare of its members, and particularly their relief in" times of sickness and distress, may extend its benefits to the families of its members, and make provision for the widows of deceased members.
    The defendant’s articles of association provided that upon the death of one of its members, bis widow should be entitled to receive four dollars monthly during widowhood. After the death of plaintiff’s husband the article was amended so as to entitle the widows to receive one dollar from each member of the society. Held, that the new article was not retroactive, and that plaintiff was entitled to receive the monthly allowance provided for by the original article.
    Appeal from a judgment in favor of the plaintiff, rendered upon the decision of Mr. Justice Hardin, in Onondaga county, at the January Circuit, 1874, the cause having been tried before him without a jury. The facts are contained in a stipulation, and may be briefly stated as follows:
    The defendant is a corporation formed. January 10, 1860, under which the subscribers associated themselves together, “ for the general purposes of improvement and welfare ” of themselves “ and others,” by. signing their names to the constitution and by-laws of the association, “ and for the particular object of mutual relief of the members of the association, in times of sickness and distress.”
    The plaintiff’s husband and the husbands of her assignors, each signed the constitution and by-laws, and became members of the society. One of the articles of the association contained this provision, viz.:
    “ Upon the death of one who has been a member of the association for six months last prior to his death, his widow shall be entitled to receive the sum of four dollars monthly during widowhood.”
    The plaintiff’s husband and the husbands of her assignors, died after a membership of six months, immediately prior to their decease. Subsequently to their decease the article above set forth was revised, under authority of a provision which reads as follows, viz.: “ A revision or alteration of the articles of the association can be made at a general meeting of the members thereof, by a majority of the votes of the members present.”
    The revised article, adopted in conformity with the provision, reads as follows, viz.: “ Upon the death of a member, each person who may be a member of the society shall pay to the widow of the deceased member the sum of one dollar.”
    The arrears due to the plaintiff under the original article were allowed by the decision of the court, against the defendant’s objection and exception.

      W. C. Ruger, for the appellant.

      I. C. Hunt, for the respondent.
   Morgan, J.:

No question is made as to the right of the plaintiff to maintain a suit to recover her allowance under the original article, unless that right is taken away by the subsequent revision. A point is, however, made that the provision for the benefit of the widows of deceased members is ultra vires, and not within the scope of the powers of the society, under the articles of association. The objects of the society are not very artistically defined.

The general purposes were declared to be the welfare of the associates and others, and particularly the mutual relief of the members in times of sickness and distress. I am of opinion that the society could extend its benefits to the families of its members, and that such provision in favor of the widows of deceased members, was not only highly meritorious, but fairly within the scope of the general purposes of the organization. Indeed, the revised article is just as objectionable as an excess of power as the original article itself. The constitution and by-laws should have a liberal interpretation for the purpose of promoting the general objects of the society, and, as such a provision, for the benefit of the families of the members is in no way hostile or opposed to the general plan of the organization, I am of opinion it should be upheld as a proper exercise of the powers conferred upon the association.

The main question is, whether the allowance to the plaintiff was cut off by the adoption of a new article after the death of her husband. It does not, in terms, attempt to do so by any language which points to such a result. It is not in form retroactive / and, upon familiar rules of interpretation, ought not to be so construed as to cut off rights already fixed.

It must be conceded, I think, that the provision in favor of the plaintiff was in all respects binding, as a contract between the association and her husband. The association undertook to pay to his widow a monthly allowance after his death, if at the time of his death he was a member, and had been such member for the preceding six months. After his death it is not perceived how the association can, by adopting a new article or by repealing the old one, relieve itself from this obligation.

But, independent of this consideration, it is safe to say that the new article does not, in form or substance, attempt to repudiate its obligations where they had already become fixed by the death of one of its members.

The judgment should be affirmed.

Present — Mullin, P. J., Smith and Morgan, JJ.

Judgment affirmed.

      Dash v. Van Kleeck, 7 Johns., 477; Quackenbush v. Danks, 1 Den., 128; S. C., 3 id., 594; Johnson v. Burrell, 2 Hill, 239; Wood v. Oakley, 11 Paige, 403.


text:
    JOSEPH FIELD, Respondent, v. SYLVESTER E. PARKER, Appellant.

      Justice of the Peace—execution issued by—need not show on its face jurisdiction by the court of the subjecPmatt&r of the action—Ministerial officer —when protected by process.

    An execution issued by a justice of the peace who has general jurisdiction to issue executions in his court, need not state facts necessary to give the justice jurisdiction of the action, in which the judgment upon which it is issued is entered.
    If the process be such as the court or officer issuing it has general jurisdiction to issue in proper cases, the officer executing it is protected by it. The defect must appear upon the face of the process, to render the officer executing it liable.
    Appeal from an order of the Special Term in Genesee county, granting a new trial.
    The plaintiff brought his action to recover the possession of a horse, levied upon by the defendant (a constable) under an execution purporting to be issued upon a judgment rendered in a Justice’s Court. The principal question litigated on the trial was, whether the property levied upon was exempt property. The jury found for the defendant. The justice at Special Term granted a new. trial upon the sole ground that the execution was no protection to the officer for making the levy, as it did not appear on its face that the justice had jurisdiction of the subject-matter upon which he rendered judgment. The judgment before the justice was recited in the execution, but not proved on the trial. The execution was in the following form:
    “ THE PEOPLE OF HEW YORK.
    “ Genesee County, )
    “ Town of Bergen, j
    “ To any Constable of said Cov/nt/y :

    “ Whereas, judgment has been rendered before me, the undersigned, against Joseph Field and Morris Gifford, defendants, in favor of Mrs. Mary E. Gleason, plaintiff, for $103.55: These are, therefore, to command you forthwith to levy of the goods and chattels of the said defendant (except such as are exempt by law), the amount of the said judgment, with interest thereon from the 4th day of October, 1873, on which day judgment was rendered, till received, and bring the money before me at my office, in sixty days from the date hereof, to render to the said plaintiff for her debt and costs.
    “ Dated at the said town this 4th day of October, 1873.
    “Debt........................................... $100 00
    “ Costs.......................................... 3 55
    “Judgment................................... $103 55
    “THOMAS D. DEAH,
    “ Justice of the Peace.”

      Lent & Crosby, for the appellant.

      J. M. Dunning, for the respondent.
   Morgan, J.:

The form of execution complies with the direction of the statute, and has been in use for over thirty years. It is in the form prescribed in the text books and printed for use of justices ever since the enactment of the Revised Statutes. The justice who issued it has general authority to issue executions upon judgments in. his court, and nothing in it indicates a want of jurisdiction in the justice to render such a judgment. Indeed, at the bottom we have the information that the judgment is for debt, $100; costs, $3.55; judgment, $103.55. It is, however, held by the judge at Special Term, that it should also appear that the cause of action is one over which the justice had jurisdiction. Since the forms of action have been abolished by the Code, it would be somewhat difficult for the justice to comply with such a rule. All actions now are actions on the case, and many of them do not come within the jurisdiction of the justice. Must he state that the case before him was upon a note, or upon some other obligation coming within his jurisdiction ? In my opinion, it is sufficient in this case that the execution is regular and legal in form, and issued by a justice who has general authority0to issue executions upon judgments in his court. Ever since the case of Savacool v. Boughton, the courts have been inclined to disregard many of the niceties formerly insisted upon in relation to the sufficiency of process to protect ministerial officers; and the principle of that case would certainly support the execution in this case as sufficient to protect . the officer. If the process be such as the court or officer has general jurisdiction to issue in proper cases, the officer is protected. He need not look behind his process to know that there is authority to issue it.

The officer is protected, although the court or officer had no jurisdiction in fact, if the defect does not appear on the face of the process. In Cowen and Hill’s notes to Phillip’s Evidence, the question is fully discussed and the conclusion reached, that to expose the officer, the want of jurisdiction over the subject-matter must not only exist, but appear upon the process. As to the rule laid down by Marcy, J., in Savacool v. Boughton, the author says it is expressed too cautiously, whereas his principle would have fully warranted him in saying, within Gwinne v. Pool, that to expose the officer, the want of jurisdiction over the subject-matter must not only exist, but must appear on the process, unless he had clear knowledge of the facts some other way. The case of Gwinne v. Pool was a remarkable case, and fully considered. It may be found in black letter, reported in 1704 by Lutwytelie, and afterward translated by Nelson.

I will cite a single paragraph of the opinion by Baron Powell : ’Tis true, when actions are brought in inferior courts, the plaintiff must always entitle such court to jurisdiction by showing that the cause did arise infra j-urisdictionem, / but when a justification is made of a supposed trespass under any warrant or judgment given in such court, all the proceedings there shall be intended regular until the contrary is shewed; and therefore, when the defendant justified by a warrant out of the Coúrt of Admiralty, and did not aver that it was for a maritime cause, the justification is good; and it was my Lord Hale’s opinion that it is sufficient to show the warrant which the officer is bound to obey, and is not obliged to show that the cause of action did arise i/nfra jurisdietionem.”

And the rule is thus stated by Savage, J., in Rogers v. Mulliner. He says :• Ministerial officers are not responsible for executing any process, regular on its face, so long as the court from which it issues has general jurisdiction to award such process.”

Now, justice’s courts have general jurisdiction to issue executions to enforce the collection of judgments rendered by them. The execution in this case is regular on its face, and no objection is made, except the single one that it does not affirmatively show that the action in which the judgment was rendered was in fact within the jurisdiction of the justice. It does appear that the judgment is for a debt of $100, if we have liberty to refer to the written memorandum at the bottom of the execution. So far, it appears affirmatively that the justice did not render a judgment in an action for slander or malicious prosecution, or other prohibited cause of action, nor go beyond his jurisdiction as to the amount.

On the whole, I am of opinion that this form of execution is sufficient to protect the constable. It is regular on its face, and one which a justice of the peace has general authority to issue to. enforce judgment in his court. We ought not to encourage a technical objection of this nature, unless compelled to do so by undoubted authority. It would show us less liberal in the protection of ministerial officers than the judges were 150 years ago. There is no occasion, no necessity, and no reason why we should disturb the universal practice in this State in regard to the forms of executions in justice’s courts.

I do not feel compelled, by the authorities cited, to uphold the objection. None are cited directly on the point, and unless some direct authority is found which we are bound to respect, I think we ought to overrule the objection.

It is admitted that there is a strange confusion of authorities on the general subject, and they are collected and commented on by Cowen and Hill, in their notes .to Phillips’ Evidence, at the pages already cited; but the conclusion finally reached by them is reasonable and just, and is, I think, correctly stated in 2 Wait’s Law and Practice, 49.

The order of the Special Term should be reversed and a new trial denied.

Present — Mullin, P. J., Smith and Morgan, JJ.

Order reversed and new trial denied.

      2 R. S., 249, §131.

      2 Wait’s L. and P., 714; Cowen’s Treat. (4th ed.), § 1568; Benedict’s Treat., 480.

       5 Wend. ,170.

       2 Wait’s L. and P., 49.

       Paige, J., in Fullon v. Hunter, 1 Barb., 555.

       1007 to 1009, part 2.

       5 Wend., 170.

       2 Lutw., 938, 1560.

       See Kelson’s Translation, 290.

         6 Wend., 602.


author: E. Darwin Smith, J.:

text:
    JOHN BORST, Respondent, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, Appellant.

      Sailroad crossing—Flagman—duty of railroad to passenger signaled to cross— escape of steam — nonsuit for contributory negligence—standing engine on brack crossing public highway

    When a flagman who is stationed at a railroad crossing beckons a person waiting for an opportunity to pass, to cross the track, the person has a right to suppose that no change will take place in anything under the control of the railroad company which will increase the danger, and the sudden increase in the escape of steam from a locomotive, such as to frighten his horse, makes the railroad company liable for the injuries resulting from it.
    Except in very clear cases the plaintiff, in an action brought to recover damages for negligence, should not be nonsuited on the ground that his own negligence has contributed to bring about the injury.
    Semble, that stopping an engine on a railroad track where it crosses a public highway, in such a manner as partially to block up the highway, is an act of negligence.
    Appeal from a judgment of $631.80, damages and costs, recovered against the defendant at the Erie county Circuit.
    The action is brought to recover damages alleged by the plaintiff to have been sustained by him by reason of the defendant’s leaving one of its engines standing in Elk street, in Buffalo, and thereby frightening plaintiff’s horse while passing along upon said street, and causing him to shy over to the side of the street, and finally to run against a wagon which was then coming from "an opposite direction, whereby plaintiff was thrown out and injured. It was also alleged by plaintiff that defendant’s flagman was negligent in giving signals for said teams to pass.
    The accident occurred at the crossing of Elk street and defendant’s railroad in the city of Buffalo. Defendant’s engine was engaged in moving a train of cars across the street, and came to a standstill near the side of, or a few feet more or less inside of, the north boundary of the street. The plaintiff, coming from the east, drove his horse up near to the east railroad track, and there stopped. The flagman signaled the plaintiff to come on.
    The plaintiff claimed that the steam from defendant’s engine blew out more while plaintiff was crossing the track than it did when he was signaled to do so, and that this caused his horse to shy and produce the injury complained of.
    At the close, of plaintiff’s evidence, and again after the close of all the proofs, the defendant’s counsel moved for a nonsuit on the ground of plaintiff’s contributory negligence, which was denied.
    The court charged the jury that some of the testimony, as it understood it, tended to show “ that the violence with which this steam was blown out from the locomotive, at the time plaintiff crossed in front of the engine, was increased, and the horse was frightened in consequence of that; if that was so, that was negligence on the part of the company for which they would be liable.” Whereupon the counsel for the defendant requested the court to further charge, that unless such increase of noise was caused by the negligence of the defendant or of its servants, the defendant was not liable therefor in this action, which request was denied and an exception taken.
    The court further charged the jury: “I think that when the flagman, who is stationed there for this purpose, beckons the passenger who is waiting in the highway for an opportunity to cross the track, the traveler has a right to suppose that no change will take place in anything under the control of the railroad company, that is likely to increase the danger. That seems to be the common sense of it, and I have no doubt it is the law. They have a right to rely upon the action of the flagman who is indicating to them; that is, that there are no trains coming in either direction, and in sight, and nothing which is in the' control of the company shall be changed, as to quantity of steam that is being emitted, or noise made.”
    The jury rendered a verdict for $500 in favor of the plaintiff.

      A. P. Laning, for the appellant.

      Thomas C. Holmes, for the respondent.
   E. Darwin Smith, J.:

The motion for a nonsuit, on the ground that the plaintiff was guilty of negligence contributing to the injury, I think, was properly denied. The question of negligence in all this class of actions is a complex one, involving a species of double issue, primarily one in respect to the negligence of the defendant, and then a counter inquiry, whether the plaintiff was free from negligence contributing to the injury. Some times the evidence may be so clear and undisputed upon one branch of the issue, and so entirely fail to make out a cause of action, that the court may properly nonsuit the plaintiff; but, as the whole question is one of fact, and one upon which different minds may come to opposite conclusions, even among judges, I think the better opinion is well expressed by Lord Denman, in the late case in the House of Lords of Bridges v. The North London Railway Company (30 L. T. [N. S.], 844; 10 Alb. L. J., 464), that nonsuiting the plaintiff in this class of cases is generally a departure from the old maxim of the English law, “ ad gucestiones faoti non respondent jwlicesL

The conduct of the plaintiff in all this class of cases is generally so mixed with, and dependent upon, the conduct and acts of the defendant and the surrounding circumstances of the case, that this question, in most cases, fairly belongs to the jury, in the general consideration of the whole facts of the case.

At the close of the charge, the counsel for defendant requested the judge to charge, that if the jury should find that there was any additional noise coming from the engine after the plaintiff started to cross the track, that unless that increase of noise was caused by the negligence of the defendant or its servants, the defendant was not liable therefor in this action, although such noise frightened plaintiff’s horse, and contributed to this injury.” The Circuit judge did not, in form, charge as requested, but said, in explanation, “ that he thought, when the flagman, who is stationed there for this purpose, beckons the passenger who is waiting in the highway for an opportunity to cross the track, the traveler has a right to suppose that no change will take place in anything under the control of the railroad company likely to increase the danger. That seemed to him the common sense of it, and he had no doubt it was the law. They have a right to rely upon the action of the flagman who is indicating to them that there are no trains coming in either direction, and in sight, and nothing which is in the control of the company shall be changed as to quantity of steam that is being emitted, or noise made.” The counsel excepted to this charge, and also to the refusal of the judge to charge' as requested. This explanation of the charge seems to me substantially correct. The judge asserts, in substance, that this plaintiff, when beckoned two or three times by the flagman to cross the track, had a right to assume that it was safe to do so, so far as the acts of the defendant and its agents were concerned; and if more steam was emitted from the engine while he was passing than before, that was an unfair surprise to the plaintiff, and if it contributed to the injury, it was the fault of the defendant’s agents, for which the defendant was responsible.

The judge was not called upon, I think, in response to the request, to charge that if there was any additional noise coming from the engine after the plaintiff started to cross the track, unless that increase of noise was caused by the negligence of the defendant or its servants, the defendant was not liable in this action. The very position of this engine in the public highway, and the occupation and blocking up of said highway by it, was of itself an act of negligence; and all its concomitants are parts of such negligence, and a continuation and aggravation of the original wrong to the public and to the plaintiff.

It appeared in evidence that, at the time of the accident, the defendant occupied a considerable portion of the roadway of Elk street, where the accident occurred, with one of its engines facing the street and fired up, and letting off steam, more or less, at the time the plaintiff attempted to cross the track, and for some twenty minutes previously, as the plaintiff states the time, while he was obstructed and hindered from passing, and waiting to pass over the railroad track, through a space thus narrowed from its proper width of forty-two feet between the sidewalks by the engine on one side, and by the cars on the other, to the space of about eighteen or twenty feet. This is the .statement of the plaintiff and his wife. It is true there is some conflict in the evidence in respect to the extent of the obstruction in said street caused by said engine and the defendant’s cars on the opposite side of the street; but I think it cannot be doubted, upon the evidence, that the said engine, attached to cars behind it, occupied on one side the whole width of the sidewalk, and tjie engine projected some feet south of the sidewalk, which was ten feet in width, into the traveled part of the highway, or the jury were authorized so to believe and find.

The point of the request to charge, was directed to a portion of the charge in which the Circuit judge had said that there was some evidence given on the part of the plaintiff, which, as he understood it, tended to show that the violence with which this steam was blown out from the locomotive at the time he crossed in front of the engine, was increased, and that the horse was frightened in consequence of that — if that was so, that was negligence on the part of the company,” etc. The judge had thus stated that such increase of steam which caused the noise, etc., was negligence, and it was hardly his duty to repeat that remark. The view of the counsel making the request was, doubtless, to ask the judge to discriminate between the negligence of the defendant and that of its agents and servants, and to cast the blame of such increase of steam and noise upon the engineer in charge of the locomotive, as a matter of personal wrong on his part, for which he alone, and not the company, was responsible. There was not any ground for such discrimination, no evidence calculated to relieve the defendant from the consequenceresuiting from the location of the locomotive and the injury caused by the emission of the steam therefrom, whether increased or not at the time the plaintiff was passing the same. Mo error was committed, I think, by the judge, in not acceding to the request so made to charge otherwise than as above stated, Or in his ruling in other respects, and the judgment should be affirmed.

Present—Mullin, P. J., Smith and Morgan, JJ.

Judgment affirmed.


text:
    WILLIAM W. WRIGHT, Appellant, v. SYLVESTER P. PIERCE and others, Respondents.

      Vendor and vendee—sede in expectation of immediate payment— conditional —how condition waived—Inconsistent remedies — election of one—effect of.

    Where a vendor delivers property in the expectation of immediate payment therefor, the delivery is conditional; but such condition may he waived, and will he deemed to he so after a considerable period of time has passed without any steps being taken by him to assert his right to repossess the goods.
    An election of one of two inconsistent remedies, whenever made, is conclusive against the right of the party to adopt the other.
    Appeal from a judgment, entered on the report of a referee.
    The action was for the wrongful taking and conversion of personal property.
    The defense was, that the sheriff of Onondaga county seized and took from the possession of one Abijah J. Wright said property, by virtue of an attachment issued in an action in the Supreme Court in favor of defendants against said Abijah J. Wright, and that subsequent to the seizure, the defendants recovered judgment against said Abijah J. Wright, and issued execution to said sheriff, who, by virtue thereof, sold said property; and that said property was not the property of the plaintiff, but was defendants’ property.
    On the 30th day of November, 1871, the defendants in this action sold and delivered to Abijah J. Wright goods to the amount of $209.21, he to pay $100 on delivery, and the balance in monthly installments of twenty-five dollars each. The vendeebeing in possession on the 4th of December, 1871, mortgaged the goods to the plaintiff for value.

      Noxon & Cowles, for the appellant.

      E. Butler, for the respondents.
   E. Darwin Smith, J.:

Assuming that the referee was correct in finding that the property for which this action was brought was originally sold by the defendants to Abijah W. Wright upon the agreement that he should pay upon delivery $100 toward the purchase-money, and the balance in twenty-five dollars monthly payments thereafter, and that the title to said property should not pass to the said vendee, but should remain in the defendants until the whole purchase-price was paid, the referee I think erred in holding that the title •remained in the defendants at the time of the commencement of this action. The property having been delivered to the vendee, the defendants’ rights in respect to it were like those of a vendor who sells property without any terms of credit, and delivers the same upon the expectation of immediate payment. The delivery in such case would be conditional, and the condition might be waived, and would be deemed waived after a considerable lapse of time without any steps taken to assert his rights to repossess the goods. (Hennequin v. Sands, 25 Wend., 640.) In this case the delivery was made on the 30th November, 1871, when the vendee paid $100 toward the purchase. The vendee, being in possession of the goods, mortgaged the same to the plaintiff, on the fourth of December afterward, who took said mortgage for value and in good faith. The vendee failed to make any further payments, and the defendants, it appears, took no steps to assert their right to reclaim said property before the 2d day of October, 1872, when they commenced an action against the said vendee for the price of said goods. The complaint in the said action, in the ordinary form, set forth that the said defendants, during the years 1870 and 1871, had sold and delivered goods, wares and merchandise to the said Abijah J. Wright, and that a certain balance thereon then remained due and unpaid to them for such goods; and the said complaint was duly verified by- one of the plaintiffs in said action. This complaint was followed by an attachment in the said action, issued on the fourteenth October, on which the said goods were seized, and judgment on the twenty-ninth of the same month, on which execution was immediately issued, under which the said goods were levied on by the sheriff. The commencement of that action was a clear waiver of the right of the defendants to reclaim said goods — treating the delivery as conditional, and the title thereto as still remaining in them — and was an election or evidence of an election previously made to treat said sale as absolute. Ah election of one of two inconsistent remedies, whenever made, is final and conclusive upon the party. (Morris v. Rexford, 18 N. Y., 552; Rodermund v. Clark, 46 id., 356 ; Bank of Beloit v. Beale, 34 id., 473.)

The effect of such election, in respect to the plaintiff, was the same as if the right to make it and reclaim the said goods, had never existed. It operated, by relation, to give validity and effect to the plaintiff’s mortgage as of its date.

The judgment must therefore be reversed and • a new trial granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Morgan, JJ.

Judgment reversed and new trial granted, costs to abide event.


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    WILLIAM H. GRIMES, Plaintiff, v. JOSEPH HILLENBRAND, Impleaded, etc., Defendant.

      Negotiable paper — illegality in consideration — when void in hands of abona fide holder.

    Negotiable paper in the hands of an innocent holder, who has received it in good faith and in the ordinary course of business, for value and without notice of any defense to it, is not rendered invalid by reason of any illegality in its consideration, unless it is expressly declared void by statute.
    Motion for a new trial upon exceptions taken at the Circuit, and ordered to be heard in the first instance at the General Term.
    The action was upon a promissory note of $500 against maker and indorser.
    The defense was, that the note was executed to prevent opposition by a creditor of the maker, to the discharge of the said maker in bankruptcy, and in fraud of the bankrupt law; and also that it was given in pursuance of the terms of a composition deed executed by the creditor of the maker, the creditor to whom it was given receiving a greater percentage of his debt than the other creditors. Plaintiff was a bona fide holder of the note, having received it before its maturity for a full consideration.^

      Humphrey & Lockwood, for the plaintiff.

      Daniel Pratt and Rowan & Helm, for the defendant.
    The note in suit is-void under the insolvent laws, and also void under the general provisions of law, it being given to induce the creditor to sign a compromise, and thereby gain a preference over other creditors, and perpetrate a fraud on the other creditors. (Payne v. Eden, 3 Caines’ Cases, 213.) It is a well settled rule of law that any separate advantage attempted in composition with creditors is void. (Townsend v. Newell, 22 How. Pr., 164; Higgins v. Mayer, 10 id., 364.) Every secret advantage to one creditor, and every security not provided for in the deed, are void. (12 Johns., 309 ; 1 P. Wms., 768 ; 4 East, 372; 3 Caines, 213;) It is not only a fraud upon the other creditors, but is against public policy. (4 Johns., 410; 12 id., 306; 19 id., 311; 2 id., 386; 3 Caines Cases, 213.) A note is of no greater validity than a naked promise. (Bliss v. Matteson, 45 N. Y., 22-25; Carroll v. Shields, 4 E. D. Smith, 466; 36 N. Y., 129; Beach v. Ollendorf, 1 Hilt., 41; Higgins v. Mayer, 10 How., 363.)
   E. Darwin Smith, J.:

The verdict of the jury settles the question of fact, that the plaintiff was a bona fide holder of the note in suit, and that he 'received it before maturity, and without notice of any of the circumstances which would have made it invalid in the hands of the original owner; and also that said note was not given to induce Scheti, the original holder, to refrain from opposing the discharge of the maker in bankruptcy. The jury were properly instructed, that if the note was given and received for that purpose, it was void, and their verdict should be for the defendant. If the note was given, as the jury must have found under the charge and the evidence of the witness Schen, to induce said witness to sign the compromise deed, or agreement, produced in evidence and set out in the case, although it was fraudulent and void as between the original parties, it still was valid in the hands of a bona fide holder.

The judge stated the rule correctly, that negotiable paper, in the hands of an innocent holder who had received it in good faith, and in the ordinary course of business, for value, and without notice of any defense to it, is not invalid by reason of any illegality in the consideration, unless it is expressly declared void by statute. (Chitty on Bills, 92 ; Hill v. Northrup, 4 N. Y. S. C., 120; Edw. on Bills, 336, 337; Story on Prom. Elotes, § 192.) It is doubtless true as the defendant’s counsel insists, that all transactions forbidden by statute are void, as are also all agreements for suppressing evidence or compounding criminal prosecutions, felonies or misdemeanors, or against sound morals, public policy or interest, as between the original parties. The case of Conderman v. Hicks (3 Lans., 110), illustrates the rule. The action in that case was upon a promise to pay money, not negotiable, given to compound a criminal offense. The defense to it was good and available, the same as it would have been between the original parties.

These views meet, I think, all the substantial points presented upon the defendant’s exceptions.

The case was very fairly submitted to the jury upon a charge quite elaborate and clear, and essentially sound. Rone of the exceptions taken to it, or to the refusals of the judge to charge, or modify the charge, I think, are well taken.

The motion for a new trial should he denied, and judgment ordered for the plaintiff upon the verdict.

Present — Mullin, P. J., Smith and Morgan, JJ.

Ordered accordingly.


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    HUNTINGTON BEARD, Respondent, v. JAMES ROOT, Appellant.

      Promissory note —what amounts to an extension of time of payment of— Indorser —discharge of.
    In this action brought against the defendant as indorser of a promissory note, the defense was interposed that the plaintiff, after the maturity of the note, had, by an agreement with the maker, extended the time of payment without defendant’s consent. By the agreement, the maker of the note assigned to the plaintiff a bond and mortgage for $600, having six months to run, upon which the plaintiff advanced $100; the agreement providing that from the proceeds of the mortgage he was to retain the $100 with interest, the amount of the note, and enough to make up the sum of $525; that if, before the maturity of the mortgage, the maker of the note should repay the $100 with interest, together with the amount of the note, then thirty dollars should be deducted from the amount to be retained from the proceeds of the mortgage. Held, that the agreement operated to extend the time of payment of the note until the maturity of the mortgage, and that the defendant was discharged thereby.
    Appeal from an order made at Special Term, directing judgment for the plaintiff upon a verdict, and denying a motion for a new trial. The action was brought against the defendant as indorser of a promissory note for $226.25.
    The defendant claimed that he was discharged from all liability upon the note by an agreement entered into between the maker thereof and the plaintiff, after its maturity, by which the time of payment was extended. The evidence of the agreement was the following receipt given upon the assignment of a mortgage by the maker to the plaintiff:

      “ I have this day received the assignment of a bond and mortgage, executed by Elijah Eason to Wm. Brown, dated July 25, 1871, for the sum of ($600) six hundred dollars and interest, payable six months from date, upon which I have this day advanced him ($100) one hundred dollars, and I also hold his promissory note for an amount I am not now able to determine, but it is between two and three hundred dollars. Now, if the said Brown shall pay me the amount of the said note and cash advanced, with interest thereon, before said mortgage becomes due, I am to discount to him the sum of thirty dollars from the amount he is to deduct on the mortgage, and if he does not pay the same before due, then the assignment to be absolute for the sum of $525. The balance due on said mortgage to be paid to said Brown when the mortgage is due and collected.

      “ August 11, 1871.
    “HUNTINGTON BEARD.”

      Geo. F. Kennedy, for the appellant.
    L. C. Gardner, for the respondent.
   E. Darwin Smith, J.:

The offer of the defendant’s counsel to show that the arrangement made by the plaintiff with Brown, the maker of the said promissory note, was made without the knowledge or consent of the defendant, I think was improperly overruled. The arrangement referred to, embraced in the assignment of the $600 bond and mortgage and the receipt therefor, was a contract, as held by the judge, and involved upon the face of the transaction an extension of time for the payment of said note during the period the said bond and mortgage had to run before maturity. The note was then past due, and an extension of the time for the payment thereof without the consent of the indorser, would discharge such indorser. It was, therefore, the right of the defendant to make this proof, if he was able to do so. It is doubtless true that the mere taking of collateral security for a debt, without an agreement to extend the time of payment, does not discharge a surety. (Bank of Utica v. Ives, 17 Wend., 502; Van Etten v. Troudden, 3 N. Y. S. C., 604; Cary v. White, 52 id., 144.) But it is not necessary that the agreement to extend the time of payment be in express terms.

The contract in this case unavoidably, and by clear implication, includes such an agreement. The debtor sells and assigns to his creditor a bond and mortgage for $600, having six months to run, for the consideration of $525, and interest on the mortgage which was paid and to be paid, as follows: $100 in cash was paid in hand, and the note, amounting to the sum of $241.78, making $341.78. In addition to this sum, the defendant, on the payment of the bond and mortgage, was to retain from the proceeds thereof an amount sufficient to make up the sum of $525, and pay the balance to the said debtor, with the condition therein contained, that if said Brown should pay the amount of said note and the cash advanced, before the said mortgage became due, the sum of thirty dollars was to be deducted from the amount the plaintiff was otherwise entitled to receive out of said mortgage. In other words, if Brown should pay the cash advanced and the amount of said note, he might redeem said mortgage by the payment of $495, these sums included, instead of the said sum of $525.

The arrangement provided for the payment of said note, absolutely, if not immediately, by the assignment of said bond and mortgage, out of the proceeds of said bond and mortgage, and implied a necessary extension of the time of payment thereof till the maturity of said bond and mortgage. The assignment of the bond and mortgage was absolute, with a condition in favor of Brown, allowing him to redeem the same. If he did not redeem, the plaintiff was entitled, by the contract, to retain the said sum of $525 out of the proceeds of said bond and mortgage. This was not the mere taking of collateral security for the payment of the note. It was, on the contrary, an agreement providing for the payment of said note at the expiration of six months, and paying the plaintiff, for such extension of time, a bonus of $183 besides interest; and, in any event, in case Brown redeemed the mortgage, a bonus of $153.22. In this way the plaintiff was paid, or agreed to be paid, a very large bonus for the extension of the time for the payment of said note. He could not have sued this note during the period of six months, if he was entitled to retain it; and if the defendant had applied to .him to pay the same, he could not have transferred to him the said note, with a right to immediately enforce payment thereof.

This is precisely the case stated in the opinion of Judge Allen, in Cary v. White (supra), where he says: “If the legal implication is that by taking of collateral security, payable in future, the creditor agrees to forbear to sue upon the original indebtedness for a time, then, in all cases, sureties would be discharged.”

It was error, I think, to deny the motion for a new trial. The order denying such motion should, therefore, be reversed, and a new trial granted, with costs to abide the event.

Present — Mullin, P. J., and Smith, J.

Order reversed and new trial granted, costs to abide event.


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    ANSON U. BECKER, Respondent, v. GEORGE HOWARD and BRONSON C. RUMSEY, Appellants.

      Lis pendens — Tam sale—effect of, on prior mortgage—chap. 437, Laws of 1855.
    A lis pendens only relates to and affects voluntary alienations of property pending a suit in respect to it, by or from the defendant therein, and in no way affects independent parties asserting adverse rights in respect to it.
    Where land, upon which there is a recorded mortgage, is sold for unpaid taxes, and a deed thereof is subsequently given by the comptroller, the purchaser acquires the legal title to the land, subject only to the right of the mortgagee to redeem as provided by sections 76 and 77 of chapter 437 of 1855.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. This was an action of ejectment brought to recover the possession of certain land in Cattaraugus county. The plaintiff claimed to be the owner of the premises by virtue of.a conveyance from one Salmon, who had purchased the same upon the foreclosure of a mortgage. The defendants’ title was founded upon a certificate of sale for nonpayment of taxes and a deed from the comptroller given in 1869. It was proved that the notice to redeem required by sections 76, 77, 80 and '81 of chapter 427, Laws of 1855, had not been given.
    The judge found, as a matter of fact, that the plaintiff was seized in fee simple of the premises, and was entitled to the immediate possession of the same, and gave judgment accordingly, from which the defendant duly appealed to this court.

      Sherman S. Rogers, for the appellants.

      Geo. W. Cothran, for the respondent.
   E. Darwin Smith, J.:

In his findings of fact, the learned judge who tried this cause at the Circuit, besides the affirmative finding that the plaintiff was seized of the premises in fee simple, found also that the defendants had no title to the said lands arid premises, nor any right to the possession of the same, or any part thereof. These findings, it seems to me, were erroneous.

The defendants introduced in evidence a certificate of the sale of the said premises, made by the comptroller of this State to the defendants, dated November 24, 1866, for the non-payment of taxes levied thereon, and also a deed from the comptroller in the usual form, made in pursuance of such' sale, and dated February 16, 1869, conveying the same premises to the defendants, which deed was recorded in the clerk’s office of the county of Cattaraugus, October 16, 1869. This deed was presumptive evidence that the sale and all the proceedings prior thereto, including the assessment of the land and all notices required by law to be given previous to the expiration of the two years’ allowed to redeem, were regular, by the express terms of the _ statute. (Section 65, of the act relating to the collection of taxes on lands of .nonresidents, passed April 13, 1855; Session Laws of that year, page 793.) The necessary force and effect of this deed was to vest in the defendants the title to these premises by title paramount to the plaintiff’s. Such title is not at all affected by the plaintiff’s suit to foreclose the Baldwin mortgage, or by the Us pendens filed in said suit. A lis pendens filed under the statute only relates to and affects voluntary alienations of property, pending a suit in respect to it, by or from the defendant in the action. It is constructive notice to any such grantee or the persons dealing with the defendant in the action, and has nothing to do with independent parties asserting their own adverse rights in respect to the property. (Harrington v. Slade, 22 Barb., 166; Sears v. Hyer, 1 Paige, 483; Stuyvesant v. Hall, 2 Barb. Ch., 151; S. C., 1 Sandf. Ch., 419.) The doctrine of lis pendens applies only to persons who might be made parties. (Parks v. Jackson, 11 Wend., 442.)

Persons claiming in hostility to a mortgage, or by title prior or paramount, are not proper parties to a foreclosure of such mortgage, and cannot be affected by the decree, unless they come in and voluntarily submit to litigate their rights in such action (Corning v. Smith, 2 Selden, 82; Lewis v. Smith, 5 id., 514), and such parties cannot be affected by a lis pendens filed in such action. The defendants’ rights arose at and relate to the time of their purchase at the tax sale, which was November 24, 1866, and before the commencement of the foreclosure suit and the filing of the lis pendens, which was filed August 17,1868. The defendants had their certificates of sale in hand when the said suit was commenced, and had paid to the comptroller the purchase-money for said land,’ and had an initiate right to a deed thereof, provided the same was not redeemed, according to the statute, before the expiration of the two years from the date of their certificate, which period expired on November 24, 1868, subject only to the right of the plaintiff in the said foreclosure suit, or other assignee of said mortgage before the sale in such action, or of the plaintiff aforesaid, to redeem said premises within six months after service of notice requiring them so to do by the defendants, according to the provisions of sections 76 and 77 of said act of 1855. Section 63 of said statute provides, that if no person shall redeem such lands within two years after the sale, the comptroller shall, at the expiration thereof, execute to the purchaser, his heirs or assigns, in the name of the people of this State, a conveyance of the real estate so sold, which shall vest in the grantee an absolute estate in fee simple, subject to all claims of the State for taxes thereon, or other liens or incumbrances.”

Such is the defendants’ deed and its effect. They acquired, by the comptroller’s deed, the fee simple in the lands, subject to the lien of .the plaintiff’s mortgage, which, said section 76 declares, shall not be affected by such sale, except as provided in the next section (79), if the plaintiff or other party interested in said mortgage should fail to redeem in six months after, notice so to do, in which case such lien is absolutely extinguished. The rights of the parties I conceive to be precisely "the same, in legal effect, as they would have been if the State had had a mortgage for the tax on this land prior to the Baldwin mortgage, and had duly foreclosed such mortgage and sold the premises, upon the foreclosure sale, to the defendants, subject to the Baldwin mortgage, or omitting to make the mortgagee or the assignees of said mortgage parties to such foreclosure. In such case, the legal title to the premises would have passed to the defendants, subject to the right of the assignee or owner of the Baldwin mortgage to redeem from such sale. Such rights the plaintiff doubtless acquired by the purchase at the foreclosure sale. He has acquired and possesses the rights of a subsequent mortgagee, unforeclosed, where the title is vested in a purchaser under a prior foreclosed mortgage. He is simply a mortgagee, and as such cannot maintain an action of ejectment till he has extinguished the prior title of the defendants.

These views involve the reversal of the judgment and the granting of a new trial, with costs to abide the event.

Present—Mullin, P. J., Smith and Morgan, JJ.

Judgment reversed and new trial granted, costs to abide event.