text:
    FRANK C. LANG, Plaintiff, v. ADOLPH KIENDL, Defendant.

      Void assessment — power of the legislature to levy a. new assessment for the same amount— it may direct the interest thereon to he included in the new assessment.

    The Court of Appeals having decided that an assessment for a local improve- ' ment was void, because the law under which it was made contained no provision for giving notice to the owners of the lands to be assessed, the assessments against certain of the lots were canceled. Subsequently the legislature passed an act directing the board of supervisors of the county where the lands were, to equitably apportion the amount of the canceled assessment, together with interest thereon, upon the said lots, and levy the said amounts- on the next ■ assessment roll of the town. It required the board to make the apportionment, but before doing so to publish for ten days in a newspaper a notice stating the ■ time and place at which it would meet to make the apportionment and hear all parties interested in the lands.

      Held, that the legislature had power to pass the act and thaf an assessment made thereunder was valid.
    Controversy submitted upon an agreed statement of facts.
    The defendant refused to fulfill a1- contract for the purchase of certain land, on the ground that it was subject to an assessment levied under section 1 of chapter 689 of 1881, which reads as follows:
    “ The board of supervisors of the county of Kings are hereby authorized and directed to levy on the assessment roll of the town of New Lots, in said county, in and for the year eighteen hundred and eighty-one, on the lands against which assessments for regulating and grading Atlantic avenue, in pursuance of chapter two hundred and seventeen, laws of eighteen hundred and sixty-nine, as amended by chapter six hundred and nineteen, laws of eighteen hundred and seventy, were canceled January twenty-ninth, eighteen hundred and seventy-nine, by the comptroller, and charged to the county of Kings, a sum equitably apportioned among the several parcels comprising said lands, which shall be sufficient to refund to the State of New York the sum its due by reason of such cancellation, which sum, amounting to forty thousand six hundred and sixty-four dollars and ninety-six cents, was duly credited August twenty-eighth, eighteen hundred and seventy-six, by the comptroller of said State to the treasurer of Kings county, and the interest charged thereon by said comptroller, as required by law, to February first, eighteen hundred and seventy-nine, amounting to eight thousand two hundred and ninety-three dollars and thirty-three cents, together with further interest thereon at six per centum per annum, from February first, eighteen hundred and seventy-nine, to the date of such levy. Before proceeding to levy such sums the said board shall apportion the same among the said several parcels of land hereinbefore mentioned, and said board shall give ten days’ notice of the time and place when they will meet to make such apportionment, which notice shall be published daily in a newspaper published in the county of Kings, and all parties interested in said lands shall be entitled to be heard before said board upon the question of said apportionment.”

      Guernsey Sackett, for the plaintiff.

      Chas. M. Earle, for the defendant.
   Barnard, P. J.:

The legislature, under chapter 217, Laws of 1869, amended by chapter 619, Laws of 1870, authorized a public improvement in Kings county, and an assessment to be levied upon the lands to be benefited thereby.

The public improvement was made and the assessment imposed, but the Court of Appeals held the laws authorizing the improvement to be unconstitutional, because no provision was made for notice to the land owner previous to taxing his property. (Stuart v. Palmer, 74 N. Y., 183.) The legislature then passed an act (chap. 689, Laws of 1881) authorizing the board of supervisors of Kings county to levy the amount of the former assessment, with interest, upon the lands against which the former and void assessment was made. The board were required, after notice to the land owner, to apportion the tax upon the several pieces of land. It will be thus seen that the objections taken by the Court of Appeals in 74 New York, 183, has been obviated.

The legislature has an unrestrained constitutional power of taxation upon giving an opportunity to be heard to the person taxed. Among the objects of taxation are public improvements. The legislature can fix the district of assessment. The apportionment must be made after notice, but when made the tax is a proper one. If a tax for a municipal improvement is invalid, the legislature may levy a new tax instead of authorizing a reassessment. (Matter of Van Antwerp, 56 N. Y., 261.) The question of the addition of interest is not important. If'the State may tax for a debt, they may tax for the interest upon it. In this case the expenditure was made by legislative direction. The law was invalid. The cost of the improvement is unpaid, with the interest upon it. There seems to be no objection .to the validity of the act in question.-

The judgment is, therefore, for the defendant upon the submitted case. The defendant is not .bound to take the title until the assessment is removed.

N o costs to either party as against the other.

Gilbert and D teman, JJ., concurred.

Judgment for the defendant upon the submitted case, without costs to either party.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    EDWARD D. MOORE, an Infant, etc., Respondent, v. JOSEPH HEGEMAN, Executor and Trustee, etc., and Others, Appellants.
    Tiwra tn this State on the ground of adultery — the guilty party may contract a valid marriage in another State.

    The wife of one Moore, both of them, being residents of this State, brought an action here for a divorce, on the ground of his adultery, and procured a judgment therein, granting her a divorce, and forbidding him to marry again during her life. Thereafter, Moore went with a woman, who was also a resident of this State, to Jersey City, in the State of New Jersey, and there married her, returning to this State after the ceremony, and continuing to reside here. A statute of New Jersey provides that “all marriages, where either of the parties shall have a former husband or wife living at the time of such marriage, shall be invalid from the beginning and absolutely void, and the' issue thereof shall be illegitimate.”

      Held, that there was no former wife living at the time of the New Jersey marriage, within the meaning of the statute of that State, and that children horn in this State of the second marriage, during the lifetime of the first wife, were legitimate.

      Van Voorhis v. Brintnall (86 N. Y., 18) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    . The action was brought to compel the defendant Hegeman, as executor, etc., to pay over to the plaintiff the amount to which he was entitled under the last will and testament of Austin D. Moore, deceased, as the lawful issue of Austin I). Moore, the son of the testator.
    • The principal question was as to the legitimacy of the plaintiff.
    Austin D. Moore, the plaintiff’s father, was first married to one Elizabeth Rowe on or about the 21st of November, 1871, and subsequently thereto, and on or about the 8th of November, 1875, the said Elizabeth Rowe obtained, in the City Court of Brooklyn,- an absolute divorce from him for his adultery, the judgment providing that it should not be lawful for him to marry again during her life.
    Subsequently, and on or about the 9th day of December, 1876, Moore and his divorced wife Elizabeth went through the form óf a marriage ceremony in the city of Brooklyn, but Elizabeth having, on or about June 26, i 877, brought a new action in the City Court for a divorce from him, it was adjudged and determined that, by reason of the prohibition of the statute and of the decree in the farmer divorce suit, the said alleged marriage of December ninth, in the city of Brooklyn, was void and of no effect.
    On the 17th of November, 1877, Moore was married io Carrie Maynard, the mother of the plaintiff, in the State of New Jersey. At the time Carrie Maynard was under age, and temporarily resided with her sister in the city of Brooklyn, her parents being residents of the State of Indiana. The plaintiff was the only issue of said marriage.
    It was found and decided by the court, at Special Term, that said marriage in New Jersey was entered into in accordance with the laws of said State, and that the plaintiff was the lawful issue of said Austin D. Moore, and entitled to the share of the estate now in the hands of Hegeman as trustee, etc.

      To this the defendants except, claiming that the marriage in New Jersey was not lawful, according to a certain clause of a sentence in the Revised Statutes of that State.

      H. M. Whitehead, for the appellants.
    Tracy, Catli/n <& Hudson, for the respondent.
   Barnard, P. J.:

The principal question in this case has been decided by the Court of Appeals. The facts are very similar to those in Van Voorhis v. Brintnall (23 Hun, 260; 86 N. Y., 18). Austin I). Moore was married in this State, was divorced for his own adultery. . While his divorced wife was alive he married again in New Jersey. Edwin Moore is the result of this New Jersey marriage. . There was no actual intent to evade the laws of Now York in this case, although both parties knew of the divorce. In Van Voorhis v. Brintnall, there was an intent to evade the laws of New York, by the marriage of the parties in New Haven. The Court of Appeals held the marriage good; that the statutes of New York had no extra territorial effect, and that a marriage good in Connecticut was good here, notwithstanding our statutes prohibited a person divorced for his own adultery from marrying again during the life of his wife so divorced.

The decision of the Court of Appeals in Wait v. Wait (4 N. Y., 95) was to the effect that the marriage was not entirely abrogated by the statute, but only so far as the statute provided, and that the first wife was entitled to dower in her divorced husband’s lands. The same principle is held in Cropsey v. Ogden (11 N. Y., 228). This decision must be deemed overruled by the case of Van Voorhis v. Brintnall, otherwise there will b§ two widows, perhaps more, of one man, equally entitled to dower in a husband’s lands and distribution, under our laws providing for distribution in cases of intestacy of the husband.

The rule probably now is that the divorce severs entirely the marriage relations. The divorced wife is no longer wife, either for dower or distribution in the divorced husband’s real or personal property. Such being the case, there is nothing in the New Jersey statute which calls for a different conclusion from that reached in Van Voorhis v. Brintnall. That statute is as follows:

“ Divorces from the bonds of matrimony shall be decreed when either of the parties had had another wife or husband living at the time of such second or other marriage; and all marriages when either of the parties shall have a former husband or wife living at the time of such marriage, shall be invalid from the beginning and absolutely void, and the issue thereof shall be deemed to be illegitimate and subject to all the legal disabilities of such issue.”

If the marriage in New York was absolutely dissolved there was no former wife existing at the time of the New Jersey marriage.-The divorced wife was by our law free to marry here or in New J ersey. The husband so divorced could marry anywhere out of the State without violating our law and the marriage be legal. If the former wife in the Yan Yoorhies case had not been absolutely free from the marriage, relations, the marriage would not have been good ii\ Connecticut.

The restricted meaning claimed for the word former in the statute of New Jersey is against the spirit of the act. The intent was to punish bigamy and to provide against bigamous marriages. The criminal part of the New Jersey law is as follows :

“ If any person being married, or who hereafter shall marry any person, the former husband or wife being alive, then the person so offending shall be guilty of a high misdemeanor.”

The construction claimed by the appellants would make the innocent divorced wife within the scope of this law, and yet she could marry here without offense. I think such is not the construction to be put upon the law. The former wife means an existing-wife by a former marriage, an undivorced wife, and not a wife divorced absolutely; and one as to whom the relations of marriage was wholly abrogated.

The judgment should be affirmed, with costs.

Dtkman, J., concurred; Gilbert, J., not sitting.

Judgment affirmed, with costs.


text:
    ROBERT L. CROOKE and Others, Respondents, v. THE FLATBUSH WATER-WORKS COMPANY, Appellant.

      Water-works company — chap, 787 of 1873 — right of, to lay its pipes in the streets of a town -r- when the court will net restrain it from doing so upon the application of the owner of the fee.

    Where a water-works company, formed under chapter 737 of 1873, has, in pur suanoe of the powers thereby conferred and with the consent of the town authorities, laid its water pipes in one of the public streets of the town, the court will not upon the application of one who owns an adjoining lot and the fee of the street in front thereof grant a temporary injunction, restraining the company from using the said pipes and allowing the water to flow therein until compensation be made to the owner for the damages sustained, or to be sustained, by him by reason of such occupation and use of the street.
    . (Dykman, J., dissenting.)
    Appeal from an order made at a Special Term restraining the defendant from using the iron pipes laid down by it in Clarkson avenue, in the town of Flatbush, for the purpose of furnishing water to the town, and from causing any water to flow therein until the further order of the court.
    . The defendant was incorporated, in pursuance-of chapter 737 of 1873, providing for the creation and formation of water-works com- •' panies in the towns and villages of the State. By section 4 of the act such companies are authorized to lay their water pipes in any of the streets, avenues or public places of the town.,
    . The defendant in its answer alleged, among other things, “upon information and belief, that as such corporation they, before laying their pipes in said highway, were duly authorized by the authorities of the said town, pursuant to chapter 737 of the Laws of 1873, and the acts amending the same, to lay their pipes in said highway for the purpose of improving said highway and supplying the public of said town and the residents on said avenue with water, and by virtue of said authority, and pursuant to a contract or agreement to supply the public in said town, including the residents on said Clarkson avenue, with water, and as an improvement such as the public authorities might, under the circumstances and the condition of the land referred to, make on said highway, the defendant laid its water pipes on said avenue.”

      John H. Kemble, for the appellant.

      John II. Bergen, for the respondents.
   Barnard, P. J.:

The order granting the injunction should be reversed for two reasons. The legislature have for many years assumed the power to permit the streets to be used in cities and villages for purposes not inconsistent with their use as highways. Gas, sewers and water pipes have been legalized, under streets, without compensation, and the pipes are now placed under the streets in all the principal cities and villages in the State. The Court of Appeals have not dieapproved of the power. They have said that a railroad company may not place its road upon the surface of a street without compensation to the owner. (Williams v. N. Y. Central and Hudson River R. R. Co., 16 N. Y., 97; Henderson v. Same Co., 78 id., 423.)

In Bloomfield, etc., Gas-Light Co. v. Calkin (62 N.Y., 386), the Court of Appeals seems to decide that gas pipes cannot be laid under county highways, but does not decide what would be the rule in cities. It seems to approve reasoning addressed to a different rule therein, but it does not expressly so decide. The legislature have permitted elevated railroads in the city of New York,'and it is not yet determined that the land owners are entitled to damages. It is true that the city of New York owns its streets, but it is as a trustee for the property owners, and as to the property owners should be kept open as public highways.

In Tompkins v. Hodgson (9 Sup. Ct. [2 Hun], 146) it was decided by the court that a monument in memory of dead soldiers might be erected in a public place, by the permission of the trustees of a village, who had charge over the highway.

The second reason for reversal is that the case is one where the party injured should be left to his action for damages. In this respect the case seems to be embraced in the principle decided by the Court of Appeals in Thacher v. The Trustees of Columbia College (87 N. Y., —).

The defendant had given a covenant not to use certain lots in the city of New York in a certain specified manner. The plaintiff had the right to enforce the covenant. The legislature permitted an elevated road, which destroyed in great part the basis for the covenant, which was addressed to the use of the property as residences. The railroad changed the circumstances, and the defendant used the property for stores. It was held that an injunction should not be granted but that the party be left to his action. In this case the damages are so insignificant that the plaintiff should not have the aid of an injunction. After the pipes are laid down and covered up there will be no real injury beyond a technical interference with property which plaintiff has no power to use or possesss himself of, unless the road should be abandoned as a highway.

Order reversed, with costs and disbursements.

Gilbert, J., concurred; Dykman, J., dissented.

. Order granting injunction reversed, with costs and disbursements.


author: Dtkman, J.:

text:
    MARY WOHLFAHRT, as Administratrix, Plaintiff, v. CHARLES A. BECKERT, Defendant.

      Druggist — liability of, for selling poison without labeling it as such.

    The plaintiff’s intestate, who was suffering from a diarrhoea, went, at the advice of a friend, to a drug store to procure ten cents worth of “black draught,’’ a comparatively harmless drug, of which he intended to take, as a dose, a small glassful. The druggist’s clerk testified that he came to the store and asked the proprietor, the defendant, for ten cents worth of “black drops;” that the defendant told him that that was a poison, that the dose was from ten to twelve drops, and advised him to take another mixture; he refused, and the clerk, by the defendant’s direction, gave him two drachms of “black drops ” in a bottle, with a label having those two words written upon it, but nothing to indicate the dose or that it was poison. The intestate took the bottle home, drank almost all of its contents, and died the next morning from the effects of so doing.
    In this action, brought by the plaintiff to l'ecover damages for the negligent killing of her intestate by the defendant:

      Held, that the court should have submitted to the jury the question as to whether the defendant was not guilty of negligence in failing to place upon the bottle a label showing that its contents were poisonous; and that it erred in non-suiting the plaintiff.

      Motion for a new trial directed to be heard. in the first instance at the General Term, after a verdict in favor of the defendant had been directed at the circuit.
    This action was brought to recover damages for the death of the plaintiffs intestate, Matthias Wohlfahrt, which was alleged to have been caused by the wrongful act and neglect of the defendant.
    Upon the trial evidence was given tending to show the following facts : The deceased, being temporarily troubled with diarrhoea or
    some bowel complaint, was informed by a peddler that a preparation known as “ black draught,” of which he could take a small glassful, would relieve him of his diarrhoea, and that he could get ten cents worth of this “ black draught ” in any drug store. The deceased went to defendant’s drug store, by and according to the testimony of the defendant’s clerk, purchased ten cents worth of “ black drops,” instead of “black draught.” “Black drops,” is a deadly poison, being the strongest preparation of onium, and from seven to ten drops are a dose. “ Black draught ” is a comparatively harmless drug.
    The bottle was simply labeled “black drops.” No dose was written upon the label. The word “poison” was not written or printed upon the label, nor was any word or phrase to indicate the poisonous character of the drug written or printed upon the label or bottle.
    Upon his return home the plaintiff, the wife of deceased, took the medicine into her own hand, tasted the medicine and then poured it in a little glass and gave it to her husband. The quantity in the bottle according to the testimony of defendant’s clerk was two drachms, and nearly all of it, with the exception of a few drops, was given to and swallowed by the deceased..
    The result of this dose was that Wohlfahrt died within a few hours thereafter despite of all the efforts of medical skill to relieve him.
    "Waldemar Voiegt, the clerk of defendant, testified that the deceased entered the defendant’s store and asked the defendant, who was sitting in a chair in the store, for ten cents worth of “ black drops ” for cramps in his stomach, that the defendant told the deceased that this was a poison and recommended him to take cholera drops, but that he refused; that the defendant then told him that he should take only ten or twelve drops for a dose; that thereupon the clerk, in pursuance of the defendant’s direction, gave the deceased two drachms of black drops.”
    The trial judge held that it was not necessary to call any further witnesses, directed the jury to find a verdict for the defendant, and ordered the exceptions to be heard in the first instance at the General Term.

      Samuel Greenbaum, for the plaintiff.

      Semler' dc Towns, for the defendant.
   Dtkman, J.:

Human life is among the inherent and inalienable rights of man kind. Bestowed by the Creator it cannot be wrongfully or neglectfully destroyed by man. Culpable negligence, by which a human being is killed, is a crime amounting to manslaughter, and the term culpable implies an act less atrocious than a crime. So highly does the law value human life that it admits of no justification wherever life has been lost, and the carelessness or negligence of any one person has contributed to the death of another person.” (Regina v. Swindall, 2 Car. & Kir., 232.) This was quoted with approval in Thomas v. Winchester (6 N. Y., 409), where it was also said “ this rule applies not only where the death of one is occasioned by the negligent act of another, but where it is caused by the negligent omission of duty of that other.”

Persons dealing in poisons are held to the highest degree of caution and care. It is a crime to sell any poisonous substance without the word poison written or printed on a label attached to the parcel in which the sale is made. (3 R. S. [6th ed.j, 973, § 25.)

If this defendant was guilty of negligence in the sale of this poison, he is answerable both criminally and civilly for the result. The sale was to a consumer, and the defendant knew that misuse of the article would place his life in imminent peril and might result in death. His own knowledge, the ignorance of the purchaser, the great danger of an overdose, or improper use of the medicine, all joined to demand of him the exercise of the highest degree of caution possible to human prudence.

If an apothecary negligently sell poison for a harmless medicine, from the effect of which the patient dies,, a right, of action in tort survives. (Norton v. Sewall, 106 Mass., 143.) By the statute of that commonwealth, actions of tort, assault, battery, imprisonment or other damage to the person survive to the personal representatives of the injured party. Justice Gray, in delivering the opinion of the court, says: “ The jury must be taken to have found .that the defendant, an apothecary, by his servant, negligently sold, as and for tincture of rhubarb (a well known and harmless medicine), two ounces of laudanum, a dangerous and deadly poison, to Patten, who procured it for the purpose of administering it, and did admim ister one ounce of it as a medicine to his servant, the plaintiff’s intestate, from the effects of which he died. The finding includes a violation of duty on the part of the defendant, and an injury resulting therefrom to the intestate, for which the defendant was' responsible, without regard to the question of privity of contract between them.”

The case of Thomas v. Winchester (supra) is to the same effect. There the agent of the defendant, who manufactured vegetable extracts for medicinal purposes, put up belladonna, a deadly poison, in a jar, and labeled it dandelion, and in that condition sold it to one Aspinwall, a druggist in New York, as and for extract of dandelion. Aspinwall sold the article to Dr. Foord, a druggist, who put it up for the plaintiff in pursuance of a physician’s prescription calling for dandelion. A small quantity of the medicine thus purchased was administered to the plaintiff and produced very alarming symptoms and placed her life in great danger.

The Court of Appeals decided that the defendant was responsible, for the injury without any privity of contract, because he committed an act of negligence imminently dangerous to the lives of others, and so was liable to any party sustaining injury therefrom. The opinion of the court also sustains the doctrine that the negligent sale of poison is an indictable offense both at the common law and under our statute, and quotes with approval an English case, where it was held that a chemist who sold laudanum in a phial labeled as paregoric, and thereby caused the death of a person to whom it was administered, was guilty of manslaughter. (Fessymond's Case, Lewin’s Crown Cases, 169.)

In the case at bar there was privity of 'contract. The defendant made sale to the plaintiff’s intestate of an article of the double strength of laudanum,-for immediate consumption as a medicine, without placing on it any label marked poison, and the result was a natural one. True he told him it was poison, and gave him caution respecting the quantity to be taken, but he placed no label on the parcel marked poison. It is plain that prudence required much more of the defendant than he gave, and it is equally plain that his action fell far short of the requirements of the law.

The cause should have been submitted to the jury, with proper instructions, respecting the caution and care required of the defendant, to determine whether he was guilty of negligence in the transaction, and whether the intestate of the plaintiff was free from fault on his part.

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

Gilbert. J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Exceptions sustained and new trial granted, costs to abide event.


author: Dykman, J.:

text:
    In the Matter of the Probate of the Last Will and Testament of JOHN HANCOCK, Deceased.

      Surrogate — he cannot admit a will to probate if he be indebted to the estate — 2 B. S., 275, see. 2— Code of Oivil Procedure, sec. 46.
    After a decree of the surrogate of Rockland county, admitting a will to probate, had been affirmed on appeal by the General Term and the Court of Appeals, it was discovered that, the surrogate was, at the time of making the decree, largely indebted to the estate by reason of his having wrongfully converted to his own use securities of the estate deposited with him at the commencement of the litigation.

      Held, that the surrogate in office at the time of such discovery properly granted an application to set aside the probate of the will and grant a new trial, on the ground that the first surrogate was, by reason of his interest in the matter, disqualified from hearing or determining it.

      Appeal from an order or decree made by the surrogate of Rock-land connty, vacating, setting aside and declaring null and void a decree made by the late A. Edward Suffern, November 10, 1879, while surrogate of the said county, admitting the will of the late John Hancock to probate.
    The decree of the surrogate had, prior to the making of this application, been affirmed by the Supreme Court and the Court of Appeals.
    The opinion of the Supreme Court at General Term is reported in 22 Hun, 39 {sub. nom. Swenarton v. Hancock).

      Amos G. Hull, for the appellant J ames M. Allen, Executor, etc.

      Rufus L. Scott, for the appellant A. Stewart Walsh, Executor, etc.

      James W. Field and Eissam dc Embury, for the appellants Isabella C. Thacher, Hannah Thacher, Josephine C. Lindsley and The Orange Orphan Asylum and others.

      Walter H. Sharpe, Charles H. Williams and S. M. Parsons, for the respondent J. W. Hutton.
   Dykman, J.:

After this cause had traveled on an appeal from the Surrogate’s Court through the Supreme Court and the Court of Appeals, it was discovered that the surrogate who adjudicated the validity of the will and the invalidity of the codicils was a debtor to the estate of the testator in a very large amount.

The indebtedness arose in this wise. At the commencement of the litigation over the will, the securities and evidences of debt of the testator went into the hands of the surrogate, and he wrongfully reduced many of them to money which he appropriated to his individual use.

On the discovery of these facts, application was made to the surrogate, then another incumbent of the office, for a new trial, on the ground of the disqualification of the former surrogate by reason of interest. The motion was granted, and from the order-we have this appeal.

By a wise legislative provision, a surrogate is now invested with power to set aside a decree or order, or grant a new trial on sufficient cause. (Code Civil Procedure, sec. 2481, sub. 6.)

There is, therefore, no question of the power of the surrogate to malee the order appealed frjtn; and on this appeal the General Term of the Supreme Court has the same power as the surrogate, and his determination must be reviewed as if an original application was made thereto.

The motion for a new trial and rehearing proceeds on the theory that the surrogate was under disability arising from interest, and that all proceedings before him are coram non judice and void It is in the Revised Statutes that “ no judge of any court can- sit as such in any cause to which he is a party or in which he is interested.” (2 R. S., 275, sec. 2.)

The Code provision is, “ A judge shall not sit as such in * * * a cause or matter * ' * * in which he is interested.” (Code Civil Procedure, sec. 46.) - ■

These are but re-enactments of the-maxim of universal -justice, that no person shall sit as judge where he has an interest. The principle has had place in every system of civilized jurisprudence, and removes officers clothed with judicial functions from the influence of self-interest. It maintains purity and impartiality in the administration of justice, and saves its ministers from reproach and disrepute.

i The law institutes no inquiry to determine whether a judicial officer can overcome the infirmities of human nature, but removes him from his seat and from the case by the peremptory command, thou shall not sit.

If this prohibition be disregarded, his action is void and may be set aside and disregarded, or questioned collaterally. (Oakley v. Aspinwall, 3 N. Y., 547; Foot v. Morgan, 1 Hill, 654.)

No restriction on this salutary rule should ever be made. Human nature is frail. “Lead us not into temptation,” is a canon of petition worthy of Divine origin, and the purity of the judicial ermine will be preserved best by removing its wearers far from all temptation.

Did the surrogate here have a disqualifying interest ? Its size or quality is notmaterial. He was debtor to the estate, and.so subject to all the influences likely to be engendered by that relation; what they were or might be is not for inquiry. By possibility they could induce departure from duty. He had interest in the estate, and on the direction it took, and the hands to which it came, might depend the vigilance or indifference of the effort to gather up the fragments of this once large and compact fortune. He was interested. Had his personal bond been held by the testator at the time of his death, his disability to entertain probate proceedings would nave been clear. It was equally so when he became debtor to the estate by conversion of its funds. He was not free and un trammeled, and “ all officers clothed with judicial authority should be free from all influences which might by possibility induce bias in the exercise of their duties.” (Darling v. Pierce, 15 Hun, 546.)

This precise point has not been adjudicated in this State so far as we can find, but in our sister State of Massachusetts the question has received determination. In Gay v. Minot (3 Cush., 352), the probate judge was indebted to the estate of the deceased, and the Supreme Court held that the relation created an interest of a like kind with that of being creditor, and divested the judge of his jurisdiction That the case being cor am non judice, the probate was void and the executors took no authority under it.

The same principle has been frequently enunciated in strong language in our own courts The prevailing opinion in Oakley v. Aspinwall (supra), contains those emphatic words : “ The provisions of our Revised Statutes on this subject profess to be merely declaratory of universal principles of law, which make no distinction between the case of interest and that of relationship, both operating equally to disqualify a judge.” He is "first excluded by the moral sense of all mankind; the common law next denies him the right to sit, and then the revisers of our law declare that they intended to embody this universal sentiment in the form of a statutory prohibition, and so they placed this explicit provision before the legislature, who adopted it without alteration and enacted it as the law. The exclusion wrought by it is as complete as is, in the nature of the case, possible. The judge is removed from the cause and from the bench.

To the same effect is Insurance Company v. Price (1 Hop., 1); Foot v. Morgan (supra); Edwards v. Russell (21 Wend., 63); Converse v. McArthur (17 Barb., 410); Schoonmaker v. Clearwater (41 id., 200). Tbis last case was affirmed by the Court of Appeals, and Judge Denio, who delivered the opinion of that court, which received the concurrence of all the members, gave full force to the decision in Oakley v. Aspinwall, and said: “ This court must be held to have determined in the case referred to, that a judgment attempted to be rendered by a judge who is disqualified by reason of consanguinity with one of the parties, is void in the most extreme sense known to the law, and therefore entirely incapable of being made good by any omission, waiver or express consent.” (1 Keyes, 310; see, also, People v. Tweed, 50 How., 434; Matter of Dodge, etc., Mfg. Co., 77 N. Y., 107.)

Our conclusion is that the surrogate was under disability by reason of his interest; and the inflexible rule of law renders his action void and of no effect.

The order appealed from should be affirmed, with costs.

Gilbert, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order affirmed, with cos


text:
    In the Matter of HUGH CARBOY.

      County officers — power of the legislature to direct the mode of their appointment — Constitution, amt. 10, sec. 3 —1880, chap. 284.
    Chapter 284 of 1880, providing that thereafter the successors to the commissioners of charities of the county of Kings should not be elected by the people, but should be appointed for the first year by the president pw tempore of the board of supervisors of that county, and thereafter by the supervisor-at-large of that county, is constitutional.
    The president pro tempore of a board of supervisors is a county authority within the meaning of section 2 of article 10 of the Constitution, authorizing the legislature to confer the power of appointing county officers upon "county authorities. ”

      Appeal from an order made at a Special Term, denying a motion for a ma/ndamns.

      GTumies J. Patterson, for the appellant Carboy.

      William C. De Witt, for the respondents, The Board of County Canvassers of Kings County.
   Dykman, J.:

In the past the administration of the system of public charities in the county of Kings, embracing the asylums for the insane and the infirm, the parentless and the sick, together with the general distribution of relief to the necessitous, has been in the hands of the commissioners elected by the people.

In May, 1880, the legislature of the State, in the exercise of its legitimate functions, made a law creating a new board of commissioners of charities and corrections, with enlarged powers and duties, ' and interdicting the exertion of the power of choice for such office by the electors.

Temporarily to fill vacancies new commissioners were made appointable by the president pro tempore of the board of supervisors, but permanently the offices are in the future to be filled by appointment by the chairman of the board of supervisors of the county. (Laws of 1880, chap. 28é.)

To place him in an attitude antagonistic to this law, about 200 votes were cast for the relator in one of the towns of Kings county at the last general election for the office of commissioners of charities for that county.

These votes were returned to the board of county canvassers, where they were entirely ignored and thrown out, and now he desires the court to compel the canvassers to state the vote and declare his election.

All claim founded on any view of power of the canvassers is waived, and a decision on the merits is desired.

The relator challenges the abolition of the elective system for the office in question, and claims that the legislation by which it is accomplished, is in contravention of that portion of the fundamental law of the State, providing that all county officers whose election or appointment is not provided for by this Constitution shall be elected by the electors of the respective counties or appointed by the boards of supervisors or other county authorities as the legislature shall direct.

The relator is beset with many difficulties. The office which he seeks was not created by the Constitution, but the legislature bestowed on the electors the right to elect such officer. The same authority that conferred the power may restrict and limit its exercise, or take it altogether away. (People ex rel. Furman v. Clute, 50 N. Y., 459.) This has been done, and the franchise of the electors relating to this office is removed; as a necessary result all ballots cast for this office by electors are invalid.

It has been said that the office sought by the relator was not created or continued by the Constitution, because these commissioners stand in place of county superintendents of the poor. That office had statutory origin (Laws of 1824, p. 383, chap. 331), and was filled by appointment until 1847, after the adoption of the present Constitution of the State, when it was made elective by legislative enactment. This being so, it was within the competence of the legislature to abrogate the elective system for this office. • It might indeed abolish the office altogether. (People v. Snedeker, 14 N. Y., 52.)

The board of canvassers therefore acted wisely and well to impute invalidity to the ballots returned for the relator for the reasons already stated. As votes thrown for an office unknown to law must be ineffective and inoperative, so votes for an office not elective by the people must be the same.

This examination shows that the relator can secure no title to the office he seeks, but his claim that the act. of the legislature contra- . venes the Constitution is equally untenable.

In the first place if the provision for temporary appointment by the chairman pro tempore of the board of supervisors falls under the inhibition of the Constitution, the remainder of the act is not thereby invalidated, because the remnant is complete and capable of being executed. (Matter of Village of Middletown, 82 N. Y., 196.)

In the next place it must be held that th& pro tempore chairman of a board of supervisors is a county authority within the meaning of the Constitution. It is not needful to hold that he is a county officer, because county authority may be lodged where there is no office in the strict sense of that term.

Counties have corporate 'capacities and supervisors of counties are corporate bodies and represent their counties, and the chairman of these boards are clothed with certain powers and duties pertaining to their transactions, and they make him a county authority. His acts have authority and force coextensive with his county, and he may .issue process running to its utmost bounds.

In no view, therefore, can the relator assert title to the office in question, and his application was properly refused.

The order appealed from should be affirmed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Order denying mandam.us affirmed, with costs.


text:
    STEPHEN D. CALLAHAN, Administrator, etc., Respondent, v. THOMAS R. SHARP, Receiver, etc., Appellant.
    Negligence— when the contributory negligence of the driver of a coach ban’s a recovery ' „ by the hirer of it — When a child is liable for the negligence of its parent.

    The plaintiffs wife having hired a two-horse coach and a driver from a livery stable, went with her four children to attend a funeral. On their return as they came near to a railroad crossing the flagman signaled them to stop on account of an approaching train. They stopped about sixteen or seventeen feet from the crossing, whereupon the flagman signaled the train to come on.
    The driver then reined up his horses and struck them with the whip. They made one or two plunges and were then struck by the engine and one of the children was killed. In an action by the father, as the administrator of the child, to recover damages for its death:

      Held, that as the driver of the coach was subject to the control and commands of the mother, his negligence was imputable to her; and that as the mother and four children were engaged in a joint enterprise, in which she acted for herself and them, the negligence so imputed to her might be attributed to the deceased, and prevented a recovery by his representatives. (Barnard, P. J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered under the decision of the court upon the verdict of a jury assessing the damages, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Edward E. Sprague, for the appellant.

      Roger A. Pryor, for the respondent.
   Dykman, J.:

This action is on the statute for causing the death of a child about thirteen years of age, under these circumstances: The wife of the plaintiff, and mother of the deceased child, ordered a two-horse coach, with a driver, from the keeper of a livery stable, to attend a funeral in the city of Brooklyn. The coach, horses and driver were furnished, and the wife, with four children, including the deceased, rode in the coach to the funeral, and at the close of the ceremonies all re-entered the coach, and the- driver started to drive them home. As they came near Atlantic avenue, a train of cars on the defendant’s railroad approached from the east, and the flagman waived his red flag to the driver and the horses were brought to a stand and stopped about sixteen or seventeen feet from the track, and the flagman stood in front of the horses and waived the engine forward with his white flag, as a signal that all was right. The train proceeded and the driver gathered up the reins and struck the horses with the whip, and swung them to the right of the flagman and they made two or three plunges and the engine struck them as they reached the track, and so the disaster came.

These facts came from the witnesses of the' plaintiff, and there was nothing in contradiction. The offer of the defendant to prove that the driver was guilty of negligence which contributed to the accident, was rejected, and there was an exception. Then the defendant asked to go to the jury on the question of the driver’s negligence, and there was to that, refusal and exception.

A motion for nonsuit was made, on the ground that the deceased was chargeable with contributive negligence, .and that there was no evidence of negligence on the part of the defendant, and that was denied, and the defendant excepted.

The request to go to the jury on the question of the defendant’s negligence, was withdrawn and there was no exception to the determination of that question by the judge as a question of law. Yet if there was no evidence of negligence on the part of the defendant, it was error to refuse a nonsuit.

An important and serious question presented in this case is whether negligence of the driver of the coach can be imputed to the occupants, and its solution depends on the relation they sustained to each other. The coach and driver were hired by the wife of the plaintiff to proceed entirely on her business; she had entire control and direction of the driver, and he was her servant and she was his superior so far as orders and directions went in relation to that excursion. She had absolute control of the business in which the driver was engaged, and exclusive direction of the means and manner of its accomplishment, and the power and right to direct the conduct of the driver in all matters pertaining thereto. When the flagman brought the horses to a stop, she had authority to direct and command him to stand or to recede, and to forbid a forward movement; and a prudent regard for the safety of herself and family would have dictated such direction. The disaster resulted from failure to exercise caution at that time in that manner. Plainly the power of control over the driver existed without exertion, and thus -unrestrained and carelessly he precipitated the occupants of the coach into danger, resulting in death. If, therefore, this driver was imprudent and careless, it was because he was' left unrestrained, and his want of care is fairly imputable to the wife of the plaintiff, who had control and management of the whole business, and could have prevented the misfortune. His omissions are her omissions.

There are cases where one travels in a vehicle over which he has no control, in which he is not responsible for the negligence of the driver. (Dyer v. Erie R. Co., 71 N. Y., 228; Robinson v. N. Y. C. and H. R. R. R. Co., 66 id., 11; Masterson v. N. Y. C. and H. R. R. R. Co., 84 id., 247.) But these cases proceed on the ground that the plaintiff had no control of the vehicle or the driver, and had no authority to give directions for their movements.

So it is held that a passenger by railroad has no identity with the proprietors of the train conveying him, sufficient to prevent a recovery against the proprietors of another train for damages resulting from a collision through their negligence, though there was such negligence in the management of the train conveying him as ■would have defeated an action by its owners (Chapman v. New Haven R. R. Co., 19 N. Y., 341), but this is on the ground that the plaintiff had no control over the train on which he was riding. ( Webster v. Hudson R. R. R. Co., 38 N. Y., 262; Colegrove v. N. Y. and N. H. R. R. Co., 20 id., 492.) These authorities have no application to the present case.

It may be stated for a general rule that where the relation of superior and subordinate exists, the maxim respondeat superior has application coextensive with the relation. '“Where a master temporarily lends his servant to another, under whose immediate control he is for the time being, and whose work he is doing, the master will not be responsible for his servant’s torts, committed during such temporary employment by another.” (Moak’s Under-hill on Torts, 42.)

As the conduct of the driver of this coach was subordinate to the direction and command of the plaintiff’s wife, negligence on his part was attributable to her.

Yet it remains to find the status of the deceased boy ; because, if his position was that of a stranger accepting an invitation to ride with a person, and in a vehicle, with no control over either, then negligence of the driver cannot affect him. Was that his situation ? His mother hired the establishment for the family as an entirety, for a purpose involving the interest and desire of all, and so acted for all. This child had no independent place, and his mother acted for him, with 1ns assent, implied from the family relation. They were all engaged in a joint enterprise, and the mother acted for all in procuring the establishment and in controlling and directing its movements after the ride commenced. If she had personally taken-the reins and directed the movements of the horses in that way, her control would have been no more complete than it was, and yet if she had done so and brought on the same result by her negligence, it would not be contended that this action or a similar one would lie against her, and yet if his position was independent, like that of the plaintiff in Kobinson’s case {supra), such action would be maintainable either against the mother or the defendant.

Then the plaintiff might contend well that the contributive negligence of another person for whose acts the plaintiff’s intestate was not responsible, furnished no excuse for negligence of the defendant-.

The conclusion reached is that the negligence of the driver may be imputed to the wife, and that being engaged in a joint enterprise in which she acted for herself and her children, the negligence so attributed to her may be ascribed to the deceased child.

This leads to a new trial without examination of the question respecting the negligence of the defendant. Yet, if it were not so, there is not much to be said on that question as the caséis presented. There was no exception to its withdrawal from the jury, and we cannot therefore look into it here. The most that can be said is that when the plaintiff rested there was possibly sufficient testimony to justify a refusal to nonsuit, but the case was not so plain as to justify its determination as a question of law.

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

Gilbert, J., concurred, Barnard, P. J., dissented.

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


author: JDykman, J. :

text:
    THE FARMERS’ LOAN AND TRUST COMPANY, as Trustees, Respondent, v. THE LONG BEACH IMPROVEMENT COMPANY, HENRY HILTON, WILLIAM LIBBEY and Others, Appellants.

      Mortgage upon after-acquired pn'operty — when invalid as against subsequent creditors of the moi'tgagor.

    A corporation, in order to secure the payment of certain bonds issued by it, executed and delivered two mortgages, conveying all its property, both real and persona], then owned or thereafter to be acquired by it, together with all its furniture, carpets, beds, etc. After the execution and delivery of the mortgages, it bought articles for and used them in furnishing a hotel kept by it. Having failed to pay for such articles, a judgment was recovered against it for the purchase-price thereof, and under an execution issued upon the said judgment, a levy was made upon the said articles, and upon other furnjture purchased by it after the execution and delivery of the mortgages. Thereafter the plaintiff brought this action to foreclose the mortgages.

      Held, that the plaintiff acquired no interest in or lien upon the said articles by virtue of the mortgages, which would authorize a court of equity to restrain the judgment creditor fronji selling the property so levied upon, and applying the proceeds to the payment of the judgment.
    Appeal from an order made at a Special Term, restraining tlie defendant Wright, as sheriff, and certain of the other defendants, from selling or interfering with certain articles of personal property, which had been seized under an execution issued against the defendant corporation. The action was brought to foreclose two. mortgages given by it, one dated May 1, 1880, the other February 19, 1881. The first granted “all of the corporate property of said • party of the first part, both real and personal, now owned or hereafter to be acquired, including,” etc.; a specific parcel of real estate was also described. The description of the property granted in the second mortgage was the same, except that there was added, after the description of the real estate, “ also all its furniture, carpets, beds, bedding, fixtures, utensils, tools, machinery, coal, wood, supplies of every kind belonging to or appertaining to the party of the first part.”

      Henry II. Rice and Winchester Britton, for the appellants Hilton and Libbey.

      Herbert B. Turner, for the respondent.
   JDykman, J. :

The Long Beach Improvement Company executed to the plaintiff two mortgages dated May 1, 1880, and February 19,1881, to secure the payment of bonds of the company. The first mortgage granted all the eoiqDorate property then owned or thereafter to be acquired by this corporation, real and personal, and the second did substantially the same thing.

After the execution and delivery of both mortgages the defendants Hilton and Libbey sold and delivered to the improvement company on credit a large quantity of articles for furnishing the hotel, and in August, 1881, they recovered a judgment against the company for $11,381 for the property so sold. On this judgment an execution against the property of the company was issued and delivered to the defendant Wright, the sheriff of Queens county. Under this execution he levied on all the property so purchased of the plaintiffs in the execution and some furniture purchased from another house, all of which was acquired after the execution of the last mortgage.

While the property was under the levy this action was commenced for the foreclosure of the two mortgages, and on the petition of the plaintiff an order made at the Special Term restraining the sale of the property seized and requiring the sheriff to deliver the same to the receivers who have been appointed. From that order we have this appeal. Either this order must be sustained on the theory that the mortgages created a lien on the after-acquired property, paramount to the lien and right under the execution and the levy, or it must fall.

It may be stated, first, that the property in question has no annexation to realty to deprive it of the character of personal property, and it cannot therefore pass under the mortgages as incidental to the land.

A mortgage has all the elements of an executed conditional sale, and like a sale requires a subject in existence and in the ownership and control of the mortgagor. A mortgage can have no validity where neither the property nor the agent of its production is in possession. Sometimes a potential existence will be sufficient, and many instances and illustrations of this are given in Van Hozer v. Cory (34 Barb., 12), but the principle underlying them all is that the right to the property when it shall come into actual existence is a pi’esent vested right, such as the “ wine that a vineyard is expected to produce, or the grain that a field is expected to grow, or the milk that a cow may yield during the coming year, or the future young cow of a female animal owned by the vendor.” This rule has no application here because at the date of the mortgages the property involved may not have been made up, and the' mortgagor had no possession or interest in the agent of its production.

It is familiar and elementary that no sale can be made of personal property thereafter to be purchased, even though it may afterwards come to possession. (Shep. Touch., tit. Grant, 241; Oom. Dig., tit. Graut D.)

No principle known to our law will allow a chattel mortgage operation on property not in existence, either actual or potential, .and on authority the case stands no differently. Gardner v. McEwen (19 N. Y., 123.) was founded on a cíiattel mortgage on property in possession and which might thereafter be purchased, and the decision was that the mortgage was valid as to the property in hand, and inoperative so far as it professed to convey property afterwards purchased. To the same effect is Edgell v. Hart (9 N. Y., 213); Conderman v. Smith (41 Barb., 404); Van Hoozer v. Cory (34 id., 10); Milliman v. Neher (20 id., 37); Otis v. Sill (8 id., 102). The legal rights of these parties may, therefore, be set down thus. On the purchase of this post-mortgage property from the merchants the title became vested in the corporation, and there remained without subjection to the mortgages until its seizure by the sheriff.

While this position is substantially yielded by the plaintiff, a contention is set up that there is an equitable lien in favor of the mortgage paramount and superior to the lien acquired by the execution and levy, which a court of equity will protect and enforce.

This assumption finds no encouragement in any part of our system of jurisprudence. The equitable system lays on the same foundation as the legal system. Equity is the synonym for justice and the spirit of law, and never arrests its course or abates its. rigor. Courts of equity administer justice in conformity with settled principles of law, and in no other manner; and they are controlled by the law of the land like courts of law. The only substantial difference between the two with us consists in the modes of relief. The judgments of the former may be given a wider scope and operation than judgments of the latter. They may enforce equitable liens, contingent interest, specific performance of contracts, and regulate liens so as to protect all equitable interests. But none of these subjects are involved here.

The question does not here come up between parties to a mortgage, where courts of equity may enforce a lien on post-obtained property in furtherance of justice to secure a bona fide claim. Such was the case of Seymour v. Canandaigua, etc., R. R. Co. (25 Barb., 284, and 14 How., 531). Where the railroad company executed a mortgage on its railroad, constructed and to be constructed, it was held that this was an agreement for a lien which equity would enforce against the claims of subsequent creditors. This was a mortgage on land. The judge, in the opinion, says: “Considering, therefore, the rule in equity to be, that a grant.of particular lands to be acquired infutv/ro is valid, and takes effect as a specific lien upon the lands as soon as they are acquired, it remains to apply the principle to the facts of this ease.” Without assenting to this for a general proposition, it was well enough in that case, for there was in that mortgage a particular specification of the propei’ty, while here there is none; and the question came up on a mortgage on land betweent he parties to the instrument. The judge also said that it was “a fundamental maxim of the common law that a man cannot grant or convey what he does not own.” He said further, that the case of Otis v. Sill (supra), where it was held that a chattel mortgage could not operate on property not in existence at the time of its execution, was clearly right. The case, therefore, is not in our way. Stevens v. Watson (4 Abb. Ct. App. Cas., 302) is a similar case.

McCaffrey v. Wooden (65 N. Y., 460), much relied on by the plaintiff, was an action to recover for farm produce taken in this way. The defendant took the property for the lessor by virtue of a provision in a lease to the plaintiff for the farm which produced the crops, in this language: “ It is agreed that the said party of the first part shall have a lien, as security for the payment of the rent 4 aforesaid, on all goods, implements, stock, fixtures, tools and other personal property which may be put on said premises, and such lien to be enforced on the nonpayment of the rent aforesaid by the taking and sale of such property in the same manner as in cases of chattel mortgages on default thereof.” The plaintiff was refused a recovery, on the ground that the agreement operated as a license and power to seize the property, and coupled as it was with a right to sell and appropriate the proceeds, it constituted a grant.

This is entirely harmonious with all we have said. If some part of this property had no actual existence at the execution of the instrument, it had a potential existence, and the plaintiff was in the possession of the agent for its production, and had the right to the property when it came into actual existence. We have made allusion above to similar cases. Much learning is displayed in the leading opinion in the last case, but much of it was unnecessary and received indorsement from one member of the court only. The decision was unquestionably right, but it has small application here.

If this corporation had expended money in the purchase of property after the execution of the mortgages, then the claim might be set up with plausibility that it would oe unjust to ■ allow the appropriation of such property to the discharge of other claims, because in that case the purchase-price would be paid from the proceeds of the bonds secured by these mortgages. But the case is not so. On the contrary, the property in question was furnished by the merchants without payment of the purchase-price, and it would be little better than confiscation to permit the plaintiff to seize and hold it under the mortgages.

The naked technical title passed to the corporation without payment, and if the voice of equity is heard, it will direct that the property, or its proceeds, shall return in payment of its purchase. Certainly a court of equity will not interpose its assistance to hand over to the mortgagee this property, which, in all good conscience and justice, should go back to the merchants.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Barnard, P. J., concurred; Gilbert, J., not sitting.

Order granting injunction reversed,- with costs and disbursements, * and motion denied, with ten dollars costs.


author: Cullen, J.:

text:
    THOMAS WHITE, Respondent, v. THOMAS R. SHARP, as Receiver of the LONG ISLAND RAILROAD COMPANY, etc., Appellant.

      Negligence — master and servant — for what defects in the machinery used the master is not responsible.

    The defendant had in his shops a machine used both for punching and shearing. In consequence of a fracture in. the end containing the punch, the punch and the shears were transposed, thereby causing the large cog-wheel, which had formerly turned from the pinion wheel on its top outwards towards the punch, to turn-inwards towards the pinion wheel and away from the punch. In punching, the machine was disconnected from the power after each blow by a lever, but its momentum was sucb that, if left to itself, it would continue to work for a short time after this was done. To prevent this, and the injury to the plate which would result from it, the workmen were accustoned to seize hold of the large cog-wheel with their hands and stop it. The plaintiff, a boilermaker by trade, was directed to assist in punching a plate. He seized the cog-wheel, as was customary, but continued to hold on to it until his hand came in contact with the pinion wheel, by which it was caught and crushed.
    In an action brought by him to recover the damages thereby sustained:

      Held, that, as the evidence-established contributory negligence on his part, and -none on the part of the defendant, he should have been nonsuited.
    Reargument upon an appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes-of the justice before whom the action was tried.
    The action was brought to recover the damages sustained by the plaintiff while in the employment of the defendant. The defendant had in his shops a machine used both for punching and shearing. In consequence of a fracture in the end containing the punch, the punch and the shears were transposed, thereby causing the large cog-wheel, which had formerly turned from the pinion wheel on its top outwards towards the punch, to turn inwards towards the pinion wheel and away from the punch. In punching, the machine was disconnected from the power after each blow by a lever, but its momentum was such that, if left to itself, it would continue to work for a short time after this was done. To prevent this, and the injury to the plate which would result from it, the workmen were accustomed to seize hold of the large cog-wheel with their hands and stop it. The plaintiff, a boilermaker by trade, was directed to assist in punching- a plate. He seized the cog-wheel, as was customary, but continued to hold on to it until his hand came in contact with the pinion wheel, by which it was caught and crushed.

      E. B. Hinsdale, for the appellant.

      Clifford A. TI Bartlett, for the respondent.
   Cullen, J.:

The plaintiff, an employe of defendant, was a boilermaker by trade, and on the occasion of the accident, which is the subject of this suit, was placed at work on a punching machine. After a hole was punched it was 'necessary to stop the machine and reset the plate or sheet to be bored. For this purpose the power operating the machine was detached, but, as it appears, the momentum of the machine was such that it would continue in motion for a short time. To stop it the workmen were in the habit of seizing hold of the cog-wheel. On this occasion the plaintiff caught hold of the cog-wheel to stop its motion, and continued his hold till his hand came in contact with the pinion in which the wheel worked, and was thus caught and crushed.

The sole question presented by this appeal is whether the cause should have been submitted to the jury, or the complaint should have been dismissed.

The rule that the master is bound to furnish suitable and safe machinery for Iris servants is clear, but it is also settled by authority that the master may, as against his servant, choose his own appliances, and that if the risk be apparent the servant assumes it. (Gibson v. Erie R. Co., 63 N. Y., 449.) In this case the plaintiff contends there were two defects in the machine used :

First. That it appears the machine had originally a double use, at one end to punch and the other end to shear, and that in consequence of a fracture the shears and punch were transplaced, and as a result the cog-wheels, which had originally turned outward from the top, now revolved inwards.

Second. That some machmes have brakes attached for the purpose of stopping them after the power is detached, and thus avoid the hazard of stopping the machine by hand.

It is not claimed that the fracture of one end of the tool had any other effect or bearing on its operation than that already noticed.

Now, it may well be doubted if either of these alleged defects made the machine unsafe or dangerous.

There was danger of injury to the plate then being worked upon from the absence of a brake, but none to the workmen unless they chose to adopt the hazardous mode of stopping the machinery by hand, which would require caution suitable to the'danger.

But, were it otherwise, the absence of these appliances and the risks attendant were obvious and known to the plaintiff.

There was but one danger in any aspect, that of holding on to the cog-wheel until it came in contact with the wheel into which it worked. The wheels were, apparent and the danger patent.

As the plaintiff said:- “Why, anybody would know it.” We think, therefore, that there was no negligence shown on the part of defendants, as the plaintiff took these risks. But further, we think there was plainly contributoiy negligence on the part of the plaintiff. We do not say that simply taking hold of the cogwheel was negligence per se. Had he done so, and from some accident the power again become attached or in some other way the machine suddenly again put in motion, it might well be that the jury would not have imputed negligence to him. But here it is conceded that after seizing the wheel he voluntarily continued his hold until it came in contact with the pinion.

This plainly occurred from inattention on his part and shows the entire absence of any caution or care whatever.

The case of Cone v. Delaware, Lackawanna and Western Railroad Company (81 N. Y., 206), is not in point. In that case the defendant sought. to exonerate itself from liability on the ground that the casualty occurred not alone from defective machinery but also from the negligence of a co-servant. It was held to be no defense.

But there is this crucial distinction between the case cited and the one at bar; in the former it was not the plaintiff but a co-servant upon whom it was sought to fix contributory negligence.

As to the negligence of that servant the court remarks: His omission may have been negligence toward the defendant.” The case only holds that such negligence does not excuse the principal from liability to a co-employe. To carry the principle to the extent of authorizing a negligent servant to recover, would overthrow the whole doctrine of contributory negligence.

We think, therefore, that the plaintiff should have been nonsuited.

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

Present — Gilbert, Dykman and Cullen, JJ.

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


author: Parnard, P. J.;

text:
    ELEANOR VINCENT and MARY J. BELL, Appellants and Contestants, v. DAVID McMASTER, as Executor, etc., of HUGH S. DUNN, Deceased, Respondent and Proponent.

      Evidence — the declaration of an attorney who drew a will, made in order to induce a witness to sign it — when admissible on the hearing of an application for its

    Appeal from a judgment in favor of the defendants, entered upon the verdict óf a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. The trial was had upon the reversal by the General Term, of a decree of the surrogate of Westchester county, admitting to probate the last will and testament of Hugh S. Dunn, deceased. Upon the trial the court refused to allow one of the witnesses of the will, Dr. Crump, to testify as to a conversation had by him with Mr. Shiel, who drew the will, in a room adjoining the bedroom of the testator.
    The court at General Term said: “ The conversation between Mr. Shiel and Dr. Crump was improperly excluded, although it did not take place in the presence of the alleged testator. The inquiry involved the capacity of the testator to make a will, which was denied, and the question whether the testator made the will without undue influence being exerted upon him. It appeared that the will was drawn and its formal execution directed by Mr. Shiel, who was an attorney. Dr. Crump was the physician in charge of the alleged testator, who died some five or six days thereafter. He at first declined to witness the will, Shiel thereupon called him out of the room, and told him that he only, by signing the will as a witness, attested the formal execution, and not the capacity of the alleged testator.

      “ It was not a question of agency in Shiel to bind the deceased. It was a part of the transaction ; it was more. The will gave all the property, some $14,000, to McMaster, a stranger, and made him sole trustee. Assuming the testator to be capable to make a will 'and to have employed Shiel to prepare it, the case would be a clear one of agency to bind the deceased. This is the claim of the executor. The contestants do not claim this agency; they say the deceased was deprived of his reason. The inquiry is widened beyond mere agency — Shiel was an actor in the subject of inquiry. It was his declaration thus engaged, to a witness to the will, and it was a declaration made whereby he induced him to sign his name as a witness to the will that was rejected. It was rejected although the contestants avowed their ability and intention to prove that Shiel and McMaster were acting in concert, .and that Shiel was the agent of McMaster.” ,
    • Thomas H. Hartwell and S. Chittenden, for the appellants.
    ■ Martin J. Keogh, for the respondent.
   Opinion by

Parnard, P. J.;

Gilbert, J., concurred; Dyicman •T„ dissented.

Yerdict, judgment and motion- denying new trial reversed, and new trial granted, costs to abide event.


author: Dykman, J.;

text:
    LEVY MELHADO, as Administrator, etc., Respondent, v. THE POUGHKEEPSIE TRANSPORTATION COMPANY, Appellant.

      Action for negligently causing death — when the complaint is sufficient —when freedom from contributory negligence need not be alleged.

    Appeal from an order overruling a demurrer interposed to the complaint in this action, brought under the statute, for causing the death of the plaintiif’s intestate by a wrongful act of the defendant. The defendant demurred on the ground- that the complaint did not state facts siifficient to constitute a cause of action. The allegations in substance are that the defendant is a corporation, and that while the deceased was a passenger on one of the boats of the company he came to his death by being drowned in the waters of the Hudson river; that his death was caused by the wrongful act, neglect and default of the defendant in refusing to stop the boat or render him any assistance whatever, though requested so to do.
    The court at General Term said: “ These words set down a cause of action against the defendant. The general rule of law with us certainly is that absence of negligence contributive to the misfortune must be shown by the plaintiff as an essential prerequisite to recovery; yet this rule is limited and qualified by an exception or rather another rule, that where the exercise of ordinary care on the part of the defendant would have avoided the misfortune, the negligence of the plaintiff will not excuse nor avail as a defense. (Kenyon v. The Ralroad, 5 Hun, 479.)

      “ If this complaint fails to allege freedom from negligence on the part of the deceased, it yet does allege wrongful and willful neglect and default in refusing to stop the boat and save a human life. Culpable negligence resulting in death is a crime, and where life has been lost by the carelessness or negligence of another the law admits no justification. £ This rule applies not only where the death of one is caused by the negligent act of another, but where it is caused by the negligent omission of duty of that other.’
    “ There was due from the defendant to the deceased passenger protection and safety so far as they could be secured by reasonable care and exertion; certainly this obligation did not cease at the supreme moment when his life was in peril.”
    The order should be affirmed, with costs.

      Thompson, Weeks ds Town, for the appellant.

      Wm. R. Wood-in, for the respondent.
   Opinion by

Dykman, J.;

Gilbert, J., concurred; Barnard, P. J., not sitting;

Order overruling demurrer affirmed, with costs.


author: Barnard, P. J.

text:
    Brady Searles, Respondent, v. Benjamin Buckhout, Appellant.
   Motion denied, with ten dollars.costs. Opinion by

Barnard, P. J.


author: Gilbert, J.

text:
    William Rickets, as Receiver, v. Gerhard Wessels.
   Motion denied, with ten dollars costs. Opinion by

Gilbert, J.


author: Dykman, J.

text:
    William P. Roome, v. Thomas Riley, Sheriff, etc.
   Motion granted, without costs. Opinion by

Dykman, J.


text:
    In the Matter of the Petition of William M. Richardson in Behalf of the Fidelity and Casualty Company.
   Order granted.


text:
    Levi W. Flagg v. Samuel Swift and others.
   Motion denied, with costs and disbursements. Opinion by

Dykman, J.


text:
    - Davis v. - Leopold.
   Order to correct return denied,

without costs. Opinion by

Gilbert, J.


author: Gilbert, J.;

text:
    Peter B. Cromwell and others, Plaintiffs, v. James W. Wiltsie and others, Defendants.
   Order affirmed, with costs and dis-

bursements. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


text:
    Samuel B. Caldwell, Respondent, v. William V. Bloor, Appellant
   Papers not submitted according to stipulation, and therefore judgment affirmed.


author: Barnard, P. J.;

text:
    In the Matter of Allan Campbell, as Commissioner, etc., to Acquire Lands, etc.
   Order confirming report of commissioners as to parcel 59 affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Michael Hessberg, Appellant, v. Thomas M. Riley, Sheriff, etc., Respondent.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    The People of the State of New York ex rel. Ross E. Terry, v. William S. Mould and others.
   Conviction of relator by board of excise affirmed, with costs. Opinion by

Gilbert, J.


text:
    Jacob Stroher, Respondent, v. Philip B. Elting, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., dissenting.


author: Gilbert, J.';

text:
    The Breslau Co-operative Association, Respondent, v. Franz Krautz and Louisa Krautz, Appellants.
   Judgment reduced to $115, with interest from January 1, 1879; and if the plaintiff do not consent to such reduction, then a new trial is granted, with costs to abide the event. Opinion by

Gilbert, J.';

Barnard, P. J., not sitting.


text:
    William D. Wood, Respondent, v. William F. Schafers and others, Appellants.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.;

Gilbert, J., not sitting.


text:
    Ellen Cunningham, Appellant, v. James T. Wright, Respondent.
   Exceptions C'"emiied and judgment for defendant. Opinion by

Gilbert, J.


text:
    Merwin Sniffen, Respondent, v. Phoebe Jane Sniffen, Appellant, Impleaded, etc.
   Appeal withdrawn.


text:
    William F. G. Shanks, Respondent, v. Sinclair Tousey, as President, etc, Appellant
   Judgment, affirmed, with costs. Opinion by

Gilbert, J.


text:
    Elizabeth Welsh, Appellant, v. John T. Wilson, Respondent.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Dykman J., dissenting.


text:
    William B. Forrest, Appellant, v. The Edwin Forrest Home, Respondent, Impleaded, etc.
   —Judgment reversed and new trial granted, costs to abide event. Opinion by

Gilbert, J.;

Dykman, J., not sitting.


text:
    John Clare, Respondent, v. The Brooklyn City Railroad Company, Appellants.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    John Clare, Appellant, v. The Brooklyn City Railroad Company, Respondents.
   Order refusing extra allowance reversed, and allowance of $500 made.


text:
    James W. Murphy, an Infant, etc., Appellant, v. John C. Orr and others, Respondents.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.


text:
    Joseph H. Van Winkle and others, Respondents, v. John Flower and John E. Eldred, Appellants.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Leopold Knupfle, as Administrator, etc., Appellant, v. The Knickerbocker Ice Company, Respondent.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Gilbert, J.


author: Gilbert, ‘J.;

text:
    John Burnside, Respondent, v. Hugh McCrossan, Appellant.
   Judgment affirmed, with costs and disbursements. Opinion by

Gilbert, ‘J.;

Barnard, P. J., not sitting.


text:
    Samuel M. Pettingill, Appellant, v. Alfred S. Barnes, Respondent.
   Judgment and order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Robert Beales, Appellant, v. James Lyons, Respondent.

   —Judgment reversed and new trial granted, costs to abide event. Order of reference vacated. Opinion by

Barnard, P. J.


text:
    William H. B. Totten, Respondent, v. Abraham L. Sprague and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    George Henderson, by Guardian, Respondent, v. Samuel Smith, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Gilbert, J.


text:
    Horace Dodd, Administrator, etc., Appellant, v. Joseph Neilson, Administrator, etc.
      George H. Smith, Purchaser, Respondent.
   Order denying motion reversed, with ten dollars costs and disbursements, and motion granted, with costs. Opinion by

Barnard, P. J.


text:
    Eliza Jane Guion, Appellant, v. Isaac Clark, Respondent.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Dykman, J., not sitting.


text:
    Frederick Diedrick, Respondent, v. John Kean and Edward G. Brown, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    John Reid, Appellant, v. Hugh McKrumm, Respondent, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Ivan W. Von Szaldinoff, Appellant, v. Frederick C. Havemeyer and others, Respondents.
   Order dismissing complaint and judgment affirmed, with costs. Opinion by

Gilbert, J.


text:
    In the Matter of Daniel D. Chamberlain, a Supposed Lunatic.
   Inquisition, order affirming same and order directing commission affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    In the Matter of the Brooklyn Rapid Transit Company.
   Motion to confirm report of commissioners denied as unnecessary and improper, when the report is adverse to the application. Opinion by

Gilbert, J.;

Dykman, J., not sitting.


text:
    In the Matter of the Application of Francis Swift.
   Order denying writ of certiorari affirmed, with costs and disbursements.

■ Opinion by

Gilbert, J.;

Dykman; J., not sitting.


text:
    Edward Clark, Appellant, v. Sylvester L. Woodhouse, Respondent.
   J udgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Gil- ' bert, J.;

text:
    Owen Taffany, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Gil- ' bert, J.;

Barnard, P. J., not sitting.


text:
    The Commercial Bank, Respondent, v. Josephine Trau and others, Appellants.
   J udgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


text:
    In the Matter of the Application of the New York, West Shore and Buffalo Railway Company, etc.
   Order to appraise lands of Elizabeth W. Christie and others, affirmed, with costs and disbursements. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    In the Matter of the Judicial Settlement of the Accounts of Peter M. Baum, Executor, etc.
   Decree affirmed, with costs. Opinion by

Dykman, J.


text:
    Michael Cunningham, Respondent, v. John Reed, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    The Poughkeepsie National Bank, Respondent, v. Frank Hasbrouck, as Trustee,. etc., Appellant.
   Judgment affirmed, with costs. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


author: Cullen, J.

text:
    Lewis Cuddeback, Appellant, v. Oscar F. Sherman, Respondent.
   Judgment affirmed, with costs. Opinion by

Cullen, J.


text:
    Henry Seibert and Charles Seibert, Respondents, v. Eleonora Mayer and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    Theodore D. Holmes and another, Appellants, v. Augusta F. A. Winans, Respondent.
   Motion for reargument denied, with ten dollars costs.


text:
    The People of the State of New York ex rel. John D. Negus v. William Dwyer, Appellant.
   Order convicting Dwyer of contempt affirmed, with costs and disbursements.


text:
    Same v. Philip Casey, Appellant.
   Order convicting Oasey of contempt affirmed, with costs and disbursements.


text:
    Same v. Thomas Bowers, Appellant.
   Order affirmed, with costs and disbursements.


text:
    Same v. William H. Waters, Appellant.
   Order affirmed, with costs and disbursements. '


text:
    Same v. Benjamin R. Seaman, Appellant.
   Order affirmed, with costs and disbursements.


text:
    Same v. James Donovan, Appellant.
   Order affirmed, with costs and disbursements.


text:
    Same v. James Kane, Appellant.
   Order affirmed, with costs and disbursements.


text:
    Same v. James Weir, Jr., Appellant.
   Order affirmed, with costs and disbursements.


text:
    Same v. John McCarthy, Appellant.
   Order affirmed, with costs and disbursements.


text:
    Same v. Philip Schmitt, Appellant.
   Order affirmed, with costs and disbursements.


text:
    Same v. William J. Lepine, Appellant.
   Order affirmed, with costs and disbursements.


text:
    Same v. Patrick J. Kelly, Appellant.
   Order affirmed, with costs and disbursements.


text:
    Same v. Thomas R. Armitage, Appellant.
   Order affirmed, with costs and disbursements.


text:
    Same v. Felix W. Doyle, Appellant.
   Order affirmed, with costs and disbursements.


author: Dykman and Cullen, JJ.

text:
    Same v. William Allison, Appellant.
   Order affirmed, with costs and disbursements. Opinions by

Dykman and Cullen, JJ.


author: Learned, P. J.: Landon, J.: Boardman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN H. LIVINGSTON, Appellant.

      Jüuisance — when one cannot be convicted for continuing it, if he be not the owner of the land upon which it stands— Public highway — evidence as to the dedication of land for the pmposes of

      A. man cannot be convicted of erecting and continuing a nuisance, an obstruction of a highway, when it appears that the land upon which the obstruction stands belongs to his‘wife and that he erected the same as her agent.
    The"i[uestion as to what evidence of the user of land by the public is insufficient. to establish the dedication of the land for a public highway, considered by
    LANDON, J.
    Appeal from a judgment of the Court of Sessions of Albany county, convicting the defendant of erecting and continuing an obstruction in a public highway.

      Edward J. Meegan, for the appellant.

      D. Üady Herrick, district-attorney, for the people.
   Learned, P. J.:

The defendant’s wife, without dispute, is the owner of the land in question; and he, acting for her, ejected the alleged obstructions. He was indicted, not only for erecting, but for continuing these obstructions to an alleged highway. And the jury have found' him guilty as charged in the indictment. On such a verdict, the judgment is that defendant at his own costs abate the nuisance within a certain time, and in default thereof that process issue to the sheriff commanding him to abate the nuisance at the defendant’s costs. (Munson v. People, 5 Parker Crim. Cas., 16; Wharton’s Grim. Law, §§ 2368, 2369.) Because the verdict of the jury has found the defendant guilty of continuing the nuisance, therefore the court, on this verdict, may adjudge that the defendant abate a nuisance on property which, it is admitted, does not belong to him. And if he fails to do this, then the court may direct the sheriff to abate a nuisance on property of a person, viz. Mrs. Livingston, who has never been heard as to her right to maintain the structure and who is not a party.

I do not mean that a person who erects a nuisance cannot be convicted of that act and lined. Possibly, (although I express no opinion on this,) the jury in this ease might have rendered a verdict of guilty of erecting, but not of continuing. But the fact is that the jury have convicted the defendant of continuing, as well as of erecting the nuisance. While, as it is shown that the' defendant is not the owner, he cannot, in my opinion, be convicted, at least on this proof, of continuing. If Mrs. Livingston were the success«r to the .defendant she would be liable for the continuance of the alleged nuisance. (Brown v. Cayuga and Susquie. R. R. Co., 12 N. Y., 486.) This defendant would not be liable, unless he derived ’ some benefit as by demising the premises and receiving rent or by conveying with covenants, for the continuance of the nuisance. (Mayor v. Cunliff, 2 N. Y., 174; Hanse v. Corning, 1 Lans., 288.) Much less would the defendant be liable for the continuance if Mrs. Livingston was not his successor; and if he had erected the nuisance, only as her agent.

. It may be said that it is not necessary that the court should adjudge that the defendant abate the nuisance, and that the court may merely impose a fine. But I do not think that a verdict can . stand, which finds the defendant guilty of continuing a nuisance which he does not continue and.which exposes him to a judgment which he cannot perform.

There are perhaps other reasons why this conviction should be reversed, but I deem this sufficient. '

It should be said in justice to the learned judge who' tried the case that his attention was not in any way called to the point above suggested, and that he could not be expected to notice it, as he very probably did not see the indictment.

Conviction reversed and new trial granted.

Landon, J.:

I advise the reversal of this conviction, upon the ground that the evidence entirely fails to show that the loom in quo was a public highway, and it was therefore the duty of the .court to direct an acquittal. (People v. Bennett, 49 N. Y., 137.)

Fifty years ago the owner of the lot told some of his neighbors that if they would help him build a stone wall from the main road to the lake, they could drive their sheep to the lake and wash them there. They helped him build the wall, and since then these persons and their successors, as they had occasion, drove their sheep across this lot, which adjoined the Knox road on one side and the lake on the other, to an inclosure upon the lake shore, and there washed them. As this lot was unfenced along the Knox road, the public in passing to and from the lake crossed it where it was most convenient. Picnic parties, fishermen and others crossed over it to and from the lake. In. the winter icé was drawn from the lake across it, and sometimes when the lake was frozen teams were driven across it to and from the lake. There is no regular traveled road across the lot, and the evidence is, that when people crossed it they crossed it in different places. The sheep, it is true, made a beaten path from the Knox road to the sheep pen, but there does not appear to have been any other well defined path. All over the lot were wagon and cattle tracks, and the evidence fails to show that the travel, except by the sheep, was in an uniform route, and except that at the shore of the lake the tracks were more united. After suffering this miscellaneous trespassing for so many years, doubtless from motives of kindness and good nature, and because the land was not regarded as valuable, the owner has thought proper to inclose it and erect some buildings upon it; thereupon her husband, who has acted as her agent in the matter, has been convicted of wickedly creating and maintaining a nuisance in a public highway. The sheep path, upon which the buildings in part stand, is charged to he the public highway, and the east fence or side of the sheep pen is charged in the indictment to be one of the termini of this highway.

The license given by the owner of the land to those who helped him build his stone wall, to drive their sheep across his lot, conferred no rights upon the public. The public did not build the wall; the license was to the wall builders, and it does not appear that it was ever extended to any except those claiming under that license. This was a particular use permitted to a certain class of persons in consideration of service rendered, and in no way inured to the benefit of the general public. Leaving the sheep path out of the case and no road across the lot ever existed, unless the whole lot should be condemned for that purpose. The indictment describes a road forty-nine feet wide along the stone wall and covering the sheep path. It is probable from the evidence that that particular part of the lot was used less than any other.

If all the travel across the lot for the last twenty years had been ■confined to one route, it is not improbable that a highway by user would have been located and established, but the burden was upon the people to prove a highway over the route they described, and this they utterly failed to do.

The conviction should be reversed.

Boardman, J.:

I concur in the opinion of Learned, J., but dissent from a new trial on the facts.

Judgment and conviction reversed and new trial granted, on •opinion of Learned, P. J'.


author: Boardman, J.:

text:
    THE NATIONAL BANK OF GLOVERSVILLE, Appellant, v. WILLARD R. BURR and Others, Respondents.

      National bank — its indorsement of a note for a commission — does not affect its righ to collect the note after it has been compelled, to pay it.

      A. note made by the defendant Burr, and indorsed by the defendant Wells, was delivered to the plaintiff, which indorsed it by its cashier, and procured it to be discounted by an Albany bank, the proceeds, less a charge for the plaintiff’s indorsement of it, being credited to the defendant Burr. The note not being paid at maturity, the plaintiff paid the amount due thereon to,the Albany bank, received from it a transfer of the note, and brought this action upon it.

      Held,, that the plaintiff was the owner of the note, and entitled to maintain the action.
    Although the agreement to indorse the note for a compensation and the subsequent indorsement of it in pursuance thereof were unlawful acts, and in excess of the powers of the bank, yet they.did not aifect its title to the note, or its right to enforce the collection thereof.
    Appeal from a judgment in favor of the defendants, entered upon a nonsuit directed at the circuit, and from an order denying a motion to set aside the nonsuit and for a new trial.

      J. M. Garroll, for 'the .appellant.
    Dudley, Dennison & Dudley, for the respondents.
   Boardman, J.:

This is an appeal from a judgment of nonsuit. The action was brought upon a promissory note made by the defendant Burr, indorsed by defendant Wells. When so made the note was delivered to plaintiff, which, by its cashier, indorsed it and had- it discounted by an Albany bank, and the proceeds were then credited by plaintiff to defendant Burr, less a possible charge for plaintiff’s indorsement. ' The note not being paid when due, the plaintiff, being such indorser as stated, paid the amount of the note to the Albany bank, by which -the note was again transferred to the plaintiff, and this action brought upon it by the plaintiff as the owner. The plaintiff was nonsuited upon the ground that it had shown no title to the note in suit. The position of the defendants’ counsel and the court being that, in the indorsement of the note by the plaintiff to the Albany bank, and in the procuring of the note by the plaintiff from the Albany bank after it was due, and by payment thereof, the plaintiff acted ultra vires, and could acquire no title. As the nonsuit was put upon this ‘‘naked question,” to use the language of the court, the judgment must stand or fall upon the correctness of such decision, unless there be some other ground for a nonsuit which could not have been obviated. No other ground was suggested upon the trial, except as to defendant Wells, and no other valid ground for a nonsuit appears in the case.

The learned court, it is believed, erred in its decision. It is cer fainly hostile to the opinion of this court when this case was formerly before it.. (15 Hun, 51, 57.) It is true the decision of the General Term was afterwards (79 N. Y., 498) reversed, but not upon the above question. We then held the plaintiff to be the owner of the note in suit, and that the' note could be enforced by plaintiff, even if its indorsement thereon were void. But we do not think its indorsement was void as to the Albany bank. That bank was a purchaser, in good faith, for full value of the note before its maturity, and on the faith of plaintiff’s indorsement. Plaintiff received the proceeds of the note from the-Albany bank. Under these facts, the plaintiff was liable to the Albany bank upon the indorsement. (People's Bank v. National Bank, 101 U. S., 181.) Nor does it help the defendants, if it were a conceded fact, as it is not, that the plaintiff charged the defendants a five per cent per annum commission for its indorsement. Such an agreement was unlawful, and the indorsement in pursuance of it was ultra vires / but it did not affect the title to the note in the plaintiff, nor the right of plaintiff to enforce its collection. The gov-1 ernment granting the charter must interfere for acts of a bank in excess of its power. (Atlantic State Bank v. Savery, 82 N. Y., 291; Gold Mining Co. v. National Bank, 96 U. S., 640; Duncomb v. N. Y., H. and N. R. R. Co., 84 N. Y., 205; Nat. Bank v. Whitney, 103 U. S., 99, and cases cited.) The laws relating to State and national banks are the same. (Pattison v. Syracuse Nat. Bank, 80 N. Y., 82; Johnson v. Nat. Bank of Gloversville, 74 id., 329, affirmed in U. S. Sup. Court Dec., 1881.)

The reasons and authorities for the position taken are well presented in the ease of National Bank v. Mathews (98 U. S., 621); and the considerations there stated commend themselves to the principles of justice.

From what has been said about the alleged five per cent commission, it becomes unnecessary to consider the allowance of the amendment of the defendants’ answer granted during the trial.

"We conclude .the judgment and order appealed from should be reversed and a new trial granted, costs to abide event.

Learned, P. J., and Landon, J., concurred.

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