text:
    Samuel P. Hinckley, Respondent, v. The New York and Manhattan Beach Railway Company and others, Appellants.
   Judgment affirmed on the opinion of the former General Term.


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    John Devlin, Appellant, v. Henry J. Davison, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements on the opinion of

Barrett, J.


author: Brady, J.

text:
    Moses S. Herman and Simon M. Herman, Appellants, v. Albert B. Doughty and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Edward D. Davis and others, Respondents, v. Henry C. Brooks, Appellant.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


author: Daniels, J.

text:
    Charles W. Reed, Respondent, v. Henry A. Tilden, Appellant.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Isaac Noyes, Jr., and another, Respondents, v. Jerry A. Wernberg, as Assignee, and others, Appellants.
   Judgment modified as directed. in opinion, and .affirmed. as modified.. Opinion by

Daniels, J.


author: Per Curiam.

text:
    Mary Wood Currie and another, Respondents, v. Robert H. Riley and another, Appellants.
   Judgment modified as directed in opinion, and affirmed as modified. Opinion

Per Curiam.


text:
    Louis Stern and another, Administrators, etc., Respondents, v. Joseph E. Newburger, Appellant.
   Order reversed, without costs. Opinion by

Brady, J.


text:
    Clark R. Griggs, Respondent, v. Margaret J. Courtenay, Administratrix, etc., Appellant.
   Judgment affirmed.


text:
    Horatio F. Averill, Appellant, v. George H. Tilden and another, Respondents.
   Order of reference settled.


text:
    Sherman Conant v. Milton S. Littlefield.
   Order settled.


text:
    The People of the State of New York ex rel. William Browne v. Hon. David McAdam, etc.
   Order affirmed, with costs and disbursements. Opinion

Per Curiam.


text:
    William P. Corbit, Appellant, v. The United States Reflector Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Julius Catlin, Jr., and another, Appellants, v. Ralph Moss and others, Respondents.
   Order reversed. Order entered as directed in opinion by

Daniels, J.


text:
    Adolph Bernheimer, Appellant, v. Ralph Moss and others, Respondents.
   Order affirmed, with ten dollars costs and dis-' bursements. Opinion by

Daniels, J.


author: Per Guriam.

text:
    Hiram Ham, Appellant, v. Henry Astor, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Guriam.


text:
    Edward Flaherty, Appellant, v. David Henderson, Respondent.
   Judgment affirmed, with costs. Opinions by

Ingalls, J., and by Brady, J., dissenting.


author: Barker, J.

text:
    Bernard S. Barne, Respondent, v. Edward Neuss and Samuel A. Hesslein, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Barker, J.


author: Ingalls, J.

text:
    George V. House, Respondent, v. Joseph Agate, Appellant.
   Judgment' reversed, new trial ordered, costs to abide event. Opinion by

Ingalls, J.


text:
    Lewis C. Wilson, Appellant, v. James Gordon Bennett, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Maria Metzger, Administratrix, etc., Respondent, v. Henry Herrmann, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Daniels, J.


text:
    The Mayor, etc., of the City of New York, Appellants, v. The Broadway Bank, Respondent.
   Order reversed, with ten dollars costs and disbursements to abide event. Opinion by

Brady, J.


text:
    The Irving National Bank of New York, Appellant, v. Jay L. Adams, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


text:
    Valentine Stein v. Conrad Stern.
   Judgment reversed, new trial ordered costs to abide event. Opinion by

Daniels, J.


text:
    In the Matter of Hall Bell.
   -Order modified as directed in

opinion. Opinion by

Brady, J.


author: Daniels,. J.

text:
    Catharine M. Cremin, Respondent, v. John F. Cremin, Appellant.
   Judgment affirmed, witb costs. Opinion by

Daniels,. J.


text:
    Joseph Thorn v. D. McShaw.
   Judgment and order- affirmed.

Opinion

Per Curiam.


text:
    Mary A. Kennedy, Plaintiff, v. Henry J. Hull, Defendant.
   Judgment ordered for plaintiff, with costs. Opinion

Per Curiam.


text:
    Reuben Van Tassel v. David Marks.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Brady, J.


text:
    Anna E. Yates v. William E. Stiles.
   Order modified as directed in opinion. Opinion

Per Curiam.


text:
    Elizabeth V. B. Smith and Chester Huntington, as Executors, etc., Respondents, v. Edward Roberts and Irene B. Roberts, Appellants.
   Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Nancy C. Weston, Appellant, v. Brayton Ives, Respondent.
   Judgment affirmed, witb costs. Opinion by

Ingalls, J.


text:
    Henry R. Cassel and another, Respondents, v. Daniel C. Fisk and others, Appellants.
   Order of Special Term reversed, with costs, and injunction vacated. Opinion by

Ingalls, J.


text:
    In the Matter of the Application of the Executors, etc., of Thomas T. Ferris.
   Order modified as directed in opinion. Opinion by

Brady, J.


text:
    Emil Callman, Appellant, v. The Exchange Fire Insurance Company, Respondent. Same v. The Emporium Fire Insurance Company, Respondent.
   Judgment affirmed, with costs. Opinion by

Ingalls, J.


text:
    The Union Trust Company of New York, Appellant, v. Augustus F. Whiton, Respondent.
   Judgment affirmed. Opinion by

Brady, J.


text:
    The People of the State of New York, Respondent, v. John P. Tweed, Appellant.
   Judgment affirmed. Opinion by

Daniels, J.


text:
    Francis Smith, Plaintiff, v. The Mayor, etc., of the City of New York, Defendant.
   Application for new trial denied. Opinion by

Daniels, J., and by Brady, J., dissenting.


text:
    Emil Fleis, Respondent, v. Sarah L. Endicott, Appellant.
   Judgment and orders affirmed. Opinion by

Daniels, J.


text:
    Clothilde Fleis, Respondent, v. Sarah L. Endicott, Appellant.
   Judgment and order affirmed. Opinion by

Daniels, J.


text:
    William H. Waring, Respondent, v. Moses Chamberlain, Appellant.
   Order reversed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Per Gwria/m.

text:
    The People of the State of New York ex rel. James Mulvey, Appellant, v. The Board of Police Commissioners of the City of New York, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion

Per Gwria/m.


text:
    Abel Horton, Respondent, v. Jacob R. Shipherd, Appellant.
   Judgment reversed and new trial ordered, with costs to abide the event. Opinion

Per Curiam.


text:
    In the Matter of the Estate of Charity Woodhouse, Deceased.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Per Ctoriam.

text:
    Rensselaer B. Winchell, Respondent, v. George W. Martin, Appellant.
   Order reversed, without costs. Opinion

Per Ctoriam.


text:
    The Edson Recording Company, Respondent, v. T. P. Sherman, Appellant.
   Judgment affirmed, with costs. Opinion by

Daniels, J.


text:
    Thomas S. Henry, as Receiver, etc., Respondent, v. Samuel H. Randall and another, Appellants.

   Order affirmed, with ten dollars costs and disbursements. Opinion by

Daniels, J.


author: Smith, P. J.:

text:
    MARGARET GULERETTE, Respondent, v. HAYES McKINLEY, Appellant.

      Evidence — the attempt of a party to bribe a witness may be shown — A witness to general reputation cannot be ashed, what he Tíos heard nor to repeat stories he has heard — When specific acts of lewdness committed by the plaintiff may be shown in an action for an indecent assault — when such acts may be shown, even though they occurred after the assault.

      A party may always show that the opposite party has offered a witness a bribe to induce him to swear falsely.
    Upon the trial of an action brought to recover damages for an assault with intent to ravish, the defendant called a witness who testified that according to the speech of people the reputation of the plaintiff was not good. Being asked upon cross-examination what persons he had heard speak about the plaintiff, he named her father as one. Upon his redirect-examination the court, upon the plaintiff’s objecting, refused to allow the defendant’s counsel to ask the witness what he had heard the plaintiff’s father say.

      Held, no error.
    Another impeaching witness called by the defendant testified, on his cross-examination, that he had heard certain stories about the plaintiff.

      Held, that the court properly refused to allow the defendant’s counsel to ask what those stories were.
    In an action by a female for an indecent assault, the injury to her feelings being an element of damages for which she is entitled to compensation, specific acts of lewdness on her part with men other than the defendant may be shown in mitigation of damages although not pleaded.

      U. seems, that such lewd acts may be shown, though they occurred after the assault, if they followed it so closely in point of time, as that they might properly be considered by the jury in determining the state of the plaintiff’s “moral sensibilities ” at the tim’e of the assault and the extent to which they were likely to he injured by it.
    Appeal from a judgment, entered on a verdict in favor of the plaintiff, rendered at the Onondaga Circuit, and from an order denying a motion for a new trial made on the minutes of the justice before whom the action was tried.

      Lansing & Lyman, for the appellant.

      Pratt, Brown c& Garfield, for the respondent.
   Smith, P. J.:

The complaint alleges an assault with intent to ravish, and the answer is a general denial. The plaintiff recovered a verdict for $1,500.

The appellant contends that the case made by the. plaintiff is so improbable and contradictory that the verdict is clearly against the weight of evidence. We are of the opinion,, on reading the whole case, that it contains evidence which sustains the finding of the jury, and that their verdict conclusively establishes the plaintiff’s right to recover.

It is also contended on the part of the appellant that the court erred in allowing the plaintiff to prove that the defendant offered a witness a bribe to swear falsely against the plaintiff. The ruling was not erroneous. The testimony was competent. It has long been settled that where a. witness denies on cross-examination that he has attempted to suborn a witness to swear falsely in the cause in favor of the party calling him, the adverse party may give evidence to contradict him in that respect. (The Queen's case, 2 Brod. & Bing., 301 — 310; S. 0., 6 E. C. L. R., 156 — 160; Morgan v. Frees, 15 Barb., 352; 2 Phil, on Ev. [Oow. & Hill’s Notes], 961.) This is upon the ground that acts done by the witness,.touching the cause, which tend to discredit him are not collateral merely, in respect to which his answer is conclusive, but as they go to his credit they pertain to the issue. Phillips, in his Treatise on Evidence, says that “ where it appears that on one side there has been forgery or fraud in some material parts of the evidence, and they are discovered to be the contrivance of a party to the proceedings; it affords a presumption against the whole of the evidence on that side of the question and has the effect of gaining a more ready admission to the evidence of the other party.” (1 Phil, on Ev., .627.) Subornation of perjury, or an attempt to suborn on the part of a party being an act of like character, raises the like presumption and may therefore be proved. (Moriarty v. The Lond., Chat. and Dover R. W. Co., 5 L. R., Q. B., 314.) In the case of a witness not a party he must first be examined as to the fact in order to lay a foundation for contradicting him (The Queen’s case, supra); but that is not .necessary in the case of a party, his acts, like his oral admissions, touching the case, being evidence in chief against him.

The defendant called a witness who testified that according to the speech of people the reputation of the plaintiff was not good. The witness having been asked on cross-examination what persons he had heard speak about the plaintiff, named her father as one. On re-examination the defendant’s counsel ' asked the witness what he had heard the' plaintiff’s father say about her. The plaintiff objected to the question; the court sustained the objection and the defendant excepted. The ruling was correct. After calling witnesses to general reputation it is not competent for the party calling them to ask what they heard said.

Another impeaching witness called by the defendant testified, on cross-examination, that he had heard certain stories about the plaintiff. The defendant’s counsel then asked the witness what those' stories were. The testimony was excluded properly. . The appellant’s counsel cites Stape v. People (85 N. Y., 390). That case differs materially from this. There the cross-examination of a witness called by the prisoner to sustain his general reputation disclosed that although the opinion of the witness as to the credibility of the prisoner was not affected by what was said about him in the neighborhood, yet that reports unfavorable to his character were in circulation there, and it was held by the Court of Appeals overruling the court below that the defense was entitled to show what those reports wei’é, so that the jury might judge in what respect they affected his character, and whether they were of such a nature as to impair his credibility as a witness. The statement of the point decided shows the distinction between the two cases.

The question is presented whether the defendant was entitled to sho.w specific acts of lewdness on the part of the plaintiff with persons of the male sex other than the. defendant. This is a vexed question. In Rex v. Hodgson (Russ. & Ry. Crim. Cases, 211) and Hex v. Clarke (2 Stark., 241) it was held that on the trial of an indictment for rape, evidence of the prosecutrix’s connection with men other than the defendant cannot be given. Other authorities concurring with those cases, and others adverse to them, are cited in a note to the case of The People v. Jackson (3 Parker Cr. R., 391). Among the latter is The People v. Abbot (19 Wend., 192), in which ' Cowen, J., expressed himself adverse to the doctrine of Rex v. Hodgson and Rex v. Clarke. In The People v. Jackson (supra) Abbot’s case was overruled, the court holding that the evidence is not competent. In Bracy v. Kibbe (31 Barb., 213) it was held by •the General Term in the fifth district that in an action for the seduction of a daughter evidence of previous lascivious conduct on her part is admissible in mitigation of damages. In Crossman v. Bradley (53 Barb., 125) it was held by a divided court in the General Term in the seventh district that in an action for an assault with intent to ravish, evidence of previous lascivious conduct on the part of the plaintiff with the defendant, or in his presence, is admissible as tending to show consent on the part of the plaintiff, but that evidence tending to show improper conduct between the plaintiff and other persons than the defendant is not admissible. Judge E. D. Smith who wrote the prevailing opinion said that the latter species of evidence was admissible according to the case of The People v. Abbot, but that the case of The People v. Jackson overrules the case of Abbot upon that point and presents the true rule. The Ford v. Jones (62 Barb., 484) was an action for an indecent assault ' upon a woman, and evidence was given on the part of the plaintiff tending to show her mental suffering by reason of the shock to her moral sensibilities caused by the defendant’s acts. It was held by the General Term in the third departmént that as the plaintiff’s character for chastity was directly in issue upon the question of damages it was competent to disparage it by proving specific acts of lewdness and immorality on her part with persons other than the defendant. The cases of The People v. Abbot; Bracy v. Kibbe and Hogan v. Cregan (6 Robt., 150) were cited with approval by Potter, J., who wrote the opinion of tbe court, the last two of which cases he said must be deemed to have overruled The People v. Jackson. And he remarked, that under the seduction and abduction statutes proof of specific acts has always been admitted to show that the prosecutrix was not of “ previously chaste character.” The recent case -of Wandell v. Edwards (25 Hun, 498) was an action for seducing and debauching the plaintiff’s daughter. The trial court rejected evidence-.offered by the defendant to prove that before he had connection with the plaintiff’s daughter she had had connection with another man. No claim was made to recover punitive damages, and the evidence was rejected for the reason that the facts had not been specially pleaded. . This was held error by a divided court in the General Term, third department, on the ground that the facts sought to be proved tended to reduce the actual damages sustained by the plaintiff in grief and in injury to her feelings, and were admissible though not specially pleaded.

- The weight of authority seems to be in favor of the proposition that in an action by- a female for an indecent assault, the injury to her feelings being an element of damages, for which she is entitled to compensation, specific acts of lewdness. on her' part with men other than the defendant, may be shown in mitigation of damages, although not pleaded.

In.the present case'the complaint alleged that the “feelings ” of the plaintiff were badly injured ” by the defendant, and' evidence was given on the part of the plaintiff, from which the jury were authorized to find that such was the case. The defendant’s offer was to prove specific acts of lewdness and immorality on the part of the plaintiff with divers persons prior to the commencement of the action: It is to be- inferred from the testimony that the suit was commenced during the month next after that in which the assault was alleged to have been committed, and although the acts sought to be proved may not have preceded the assault, they followed it so closely, in point of time, as that they might properly be considered by the jury in determining the state of the plaintiff’s “ moral sensibilities ” at the time of the assault, and the extent to which they were likely to be injured thereby. Besides, the proof offered was not objected to on the ground that it was not confined to acts, occurring prior to the assault. It is apparent from the whole case that the offer was excluded on the ground that specific acts are not competent to be proved whether occurring before or after the assault, and in that view of the nature of the ruling the question has been argued before us on both sides.

"We are of the opinion that the offer was excluded erroneously, and that for that reason the judgment should be reversed and a new trial liad.

Hardin and Haight, JJ., concurred.

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


author: Smíth, P. J.:

text:
    CYNTHIA A. TOLMAN, as Administratrix, etc., of JOSIAH H. TOLMAN, Deceased, Respondent, v. THE SYRACUSE, BINGHAMTON AND NEW YORK RAILROAD COMPANY, Appellant.

      Evidence — when the testimony of witnesses that they did not hear a signal is not to he considered as against afvrmativ eevidence that it was given.

    Where, in an action to recover the damages occasioned by the alleged negligent killing of the plaintiff’s intestate by the defendant, a railroad company, the only negligence alleged is the failure of those.in charge of the train by which the intestate was struck to ring the bell or blow the whistle on approaching a crossing, it is the duty of the court to charge that, as against the affirmative evidence of credible witnesses that the bell was rung, or the whistle blown, the evidence of witnesses who were not listening for signals, and who gave no attention to the matter, that they did not hear the bell or the whistle, should not be considered.

      (iGulhane v. N. T. G. and H. B. B. B. Go., 60 N. Y„ 138, 137, followed.) .
    Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Onondaga Circuit, and fróm an order deny ing a motion for a new trial, made upon the minutes of the justice before whom the action was tried, and also from an order of the Special Term granting an extra allowance.
    Williami O. Huger and Louis Marshall, for the appellant.

      T. K. Fuller, for the respondent.
   Smíth, P. J.:

The action was brought to recover damages resulting from the death of the plaintiff’s husband, Josiah H. Tolman, alleged to have been caused by the negligence of the defendant. On the. 21st of December, 1880, the deceased had been to the city of Syracuse with his horse and cutter, and on the evening of that day he undertook to return to his home in Pompey, by way of the Jamesville plank-road, which crosses the defendant’s railroad about three miles south of Syracuse. At the crossing he was struck by one of defendant’s trains going south, and received injuries from which he died soon after. The only negligence imputable to the defendant, upon any view of the evidence, was the omission to ring the bell or sound the whistle on approaching the crossing. Upon that point the plaintiff called eleven witnesses, who were either passengers on the train or who lived near thq crossing, several of whom — eight, we think — testified that they heard no signal, and also testified in substance that they were not listening for signals, and that they gave the subject no attention at the time. On the part of the defendant, the fireman and engineer employed on the train testified positively to the fact of the ringing of .the bell and the sounding of the whistle, and that they heard them; and another witness, who was a brakeman in the employ of the defendant, and was temporarily on the engine of the train, testified to the same facts, and that the bell was rung by him part of the way. A witness, Killmore, who lived fifty or sixty rods north of the crossing, who does not appear to have been an employe of the company, testified that he was watching for the train and that he heard the whistle and the bell. The defendant’s counsel requested the court to charge that, as against the affirmative evidence of credible witnesses that the bell was rung or whistle blown, the evidence of witnesses who paid no attention to these signals, that they did not hear them, should not be considered. To that request the court replied: “ I do not say that the evidence should not be considered, but I do say that the evidence of those who testify affirmatively that they did hear, is to be given greater weight than those who simply say we didn’t hear.’ All the evidence is to be weighed according to the circumstances of the case as shown by the evidence.” The defendant’s counsel excepted to . that part of the charge.

¥e are of the opinion that the exception was well taken. In Culhane v. New York Central and Hudson River Railroad Company (60 N. Y., 133, 137), Allen, <1., speaking for the whole court, said: “As against positive, affirmative evidence by credible witnesses to the ringing of a bell or the sounding of a whistle, there must be something more than the testimony of one or more that they did not hear it- to authorize the submission of the question to the jury. It must appear that they were looking, watching and listening for it; that their attention was directed to the fact, so that the evidence will tend to some extent to prove the negative. A mere I did not hear ’ is entitled to no weight in the presence of affirmative evidence that the signal, was given, and does not create a conflict of evidence justifying a submission of the question to the jury as one of fact.” The present case is stronger for the defendant than the case of Oulhane, as there, there was simply an absence of evidence that the witnesses who did not hear listened or gave heed to the presence or absence of the signal. (See, also, Steves v. Oswego and Syracuse R. R. Co., 18 N. Y., 422, 425, and Chapman v. N. Y. C. and H. R. R. R. Co., 14 Hun, 485.)

If the testimony of the eight witnesses, standing alone, would not have raised an issue for the jury, as against the positive testimony of the defendant’s witnesses, it added nothing to the testimony of the other three witnesses called by the plaintiff, and was not entitled to be considered by the jury. But the charge, in effect, left the jury to give the bare negative testimony of the eight witnesses such weight as they might think it entitled to, and as it is probable that the testimony thus improperly submitted to them influenced their verdict, the judgment must be reversed.

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

Hardin and Haight, JJ., concurred.

So ordered.


author: Smith, P. J :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES WHITE, Respondent, v. ARPHAXED LOOMIS, Appellant.

      Lease — what agreements are to he treated as part of it — what payments are to he ■ made as pa/i't of the rent — Justice of-the peace — has four days within which to decide in surmna/iy pi-oceedings. .

    One A. Loomis leased a paper mill belonging to him to the firm of Kingston & Co., they agreeing to pay therefor two dollars and fifty cents per ton for all paper made therein. Loomis agreed to pay the expense of putting the machinery in order, and they agreed to run the mill until the rent received should equal the amount so to be expended, when they were to be at liberty to terminate the lease, or continue it for three years from the time they commenced to run the mill. After the repairs had been made and "the lessees had taken possession of and were operating the mill, the following memorandum of agreement was indorsed upon the lease:
    “A. L. to pay for new chimney and washer. If the increas.ed rent over five tons a week, does not pay the cost in one year, then Kingston & Co. agree to pay the deficiency.”
    In January, 1879, the new chimney and washer were put-in at Loomis’ expense, and ■ thereafter,. and in April of that year, the lessees, with the consent of
    • Loomis, assigned the lease to the relator, who bound himself “ to pay, perform and fulfill in all things on their part.-”

      Held, that the agreement to pay any difference that there might be between the amount of the rent to be received for the number of tons of paper in excess of five, manufactured during each week, and the cost of the chimney and washer, was an agreement to pay .it as rent.
    That the assignee was bound to pay the deficiency, if any there were, as rent.
    That for his failure so to do he might be removed by summary proceedings.
    A justice of the peace, before whom summary proceedings are instituted, has four days within which to make his decision.
    Appeal from a judgment, entered upon a decision of the Lewis Special Term, on certiorari, reversing a final order of a justice of the peace in summary proceedings, and awarding restitution.
    The appellant Loomis leased a paper mill to the firm of Kingston & Co. at a rent of two dollars and fifty cents per ton for all paper made. Loomis was to pay the expense of putting the machinery and apparatus in running order. The lessees were to run it long enough to pay by the rent the amount expended by Loomis for repairs, and were then to be at liberty to terminate the lease, or, at their option, to continue the same for the term of three years from the time they should commence running.

      Arphaxed Loomis, appellant, in person. 8. 8*, Morgan, of counsel.

      H. Olay Hall, for the respondent.
   Smith, P. J :

In August, 1678, the appellant leased a paper mill at Little. Palls, with its machinery and apparatus, for a contingent term, to Kingston & Co., who were to pay rent therefor at the rate of twp dollars and fifty cents upon each ton of paper made in the mill.. , The lessees took possession of the mill and-.operated it, and in the following November- a memorandum of agreement between , them and the lessor was indorsed upon the lease in the following words: “A. L. to pay for new chimney and washer. If the increased ■ rent over five tons a week does not pay the cost in one year, then Kingston & Co. agree to pay the deficiency.” The new chimney and washer ■were put in in January, 1879, at the cost of the landlord. In April, Kingston & Co., with the consent of the landlord, assigned the lease to the relator White, and he bound himself to “pay, perform and fulfill in all things on their part.” White paid rent from time to time, at the specified rate per ton of paper made by him, but as after paying at the rate of five tons per week there was nothing to apply on the cost of the chimney and washer, the landlord, at the end of the year after they were put in, demanded pay for them of White, and he refused. Thereupon the proceedings herein were instituted to recover possession of the premises, on the ground of the non-payment of rent.

In the view we take of the case the only, question is whether, by the proper construction of the indorsement -on the lease, Kingston & Co. agreed to pay the deficiency in the cost of the chimney and washer as rent. We think they did for several reasons. The indorsement is very concise, but it is apparent from its language and from the fact that it is written upon the lease that it refers to the rent of the premises therein demised. It shows clearly that the parties to it supposed the stipulated additions would increase the capacity of the mill to turn out paper and so add to the value of its use; that, however much its capacity might thereby be augmented, the lessees were to continue to pay rent at the rate of two dollars and fifty cents for each ton of paper manufactured, and that if the increase was sufficient over five" tons a week to pay the cost of such improvements, such cost was in that event to be paid from that source, in which case it obviously would' have, been simply an increase of rent. When the agreement provided that in case the increased manufacture should fail to pay such cost the lessees would pay the deficiency, the parties still had in view the value, of the use of the premises in their improved condition and were still providing for the payment of rent. A similar mode of fixing the amount of rent to be paid was adopted in the .original lease, which provided that Loomis should pay the expense of putting the machinery and apparatus in running order, and Kingston & Co. were to run the mill long enough to pay by the rent the amount expended by Loomis for repairs. The effect of the indorsement is the same as if it- had' been incorporated in the lease, and in that event there could hardly be a doubt that it related to the payment of the rent.

The lessees had a direct interest in having the proposed additions made during the first year as they had the option of continuing -the lease for two years thereafter.

If we are right in holding that Kingston & Co. agreed in case of deficiency, etc., to pay the cost, of the additions as rent, their assignee, White, is equally bound by his agreement to pay “ and fulfill in all things on their part.” That agreement, also, was indorsed on the lease, and as it was underneath the agreement between Kingston & Co. and Loomis above referred to, White must be deemed to have had notice of the latter agreement and to have intended to include it in his own. The extrinsic evidence is to the same effect.

The respondent insists that the justice by delaying the rendition of judgment until four days after the case was submitted to him lost jurisdiction. We think that where summary proceedings are instituted before a justice of the peace all the provisions in respect to the mode of procedure in actions in justices’ courts apply to such proceedings except as otherwise prescribed by statute. Thus the provision giving the justice four days after the submission of the cause to - him to render his final decision in certain cases is applicable to these proceedings before a justice. • (2 R. S., 247, § 124; see Laws 1849, chap. 193, § 5, sub. 1.)

For these reasons we are of the opinion that the judgment and order of the Special Term should be reversed and the determination of the justice affirmed, with costs.

Hardin and Haight, JJ., concurred.

So ordered.


text:
    ARTAMETTA SHERMAN and MARY E. PERKINS, Respondents, v. JOHN SCOTT and Others, Appellants.

      Verbal agreement to make a will — specific performance thereof witt be compelled when it has been partially performed — An attorney is not interested in an action by reason of his Men for costs —personal transactions with a deceased person may be testified to by him — when, where he acts for both parlies, the communications a/re not privileged.

    A husband and wife entered into an oral agreement by which the husband agreed to procure certain real estate, to be conveyed to her, and she agreed to execute to him a lease thereof for the term of his life, and also to make a will devising the residue to him in case he should survive her, and in case he should not, then to give certain legacies to persons named and devise the residue of the property to others.
    The land was conveyed to the wife and she executed the lease as agreed, but never made the will, although she recognized her obligation to do so. The husband survived his wife, and thereafter assigned the cause of action upon the said agreement to one of the persons who was to have received a legacy under the wife’s will.

      Held, that the legatee might maintain an action against the heirs-at-law of the wife to compel the specific performance of the agreement.
    The lien for costs which an attorney has upon his client’s (the plaintiffs) cause of action does not make him interested in the result, within the meaning of section 829 of the Code of Civil Procedure, so as to prevent him from testifying as to personal transactions had with a deceased person, through whom the defendants claim.

      Benible, that it would be otherwise if the attorney were to have a certain share of the recovery or to receive nothing unless his clients succeeded.
    When an attorney is acting-for two clients his communications with them are ' not privileged in a subsequent litigation arising between the representatives of the said clients.

      . Appeal from, a judgment in favor of the plaintiffs, entered on a decision of a justice of this court in a case tried, at the Monroe Special Term.

      W. S. Oliver, for the appellants.

      W. G. Rowley, for the respondents. .
   Smith, P. J.:

The trial judge found that in October, 1873, it was agreed by parol, between Henry Babcock and his wife Bovina, who lived .together and had no children, that Babcock would cause certain lands owned by him, valued at $4,000, to be conveyed to his wife, and that she would execute to him a lease of the same for the term of his life, and that she would also make a. will, and. keep it in existence during her life, devising said land to her said husband in case he should survive her; and in case he should die first, giving to the plaintiff Artametta Sherman a legacy of $2,000, to John Scott $300, and to the plaintiff, Mary E. Perkins, the residue of said property; that' in pursuance of said agreement- Babcock caused said land to be conveyed to his wife, and she executed to him a life lease of the same, but she never made her will as she agreed to do, although she recognized her. obligation to do so on several occasions after the making of said agreement, and in February, 1875, she died intestate. Babcock and his wife occupied said land till her death, and after that time Babcock occupied it till he died, in September, 1875. Before his death he made his will, by which, after providing for the payment of his debts and the expenditure of $150 for a monument over his own and his wife’s grave, he gave to the plaintiff Artametta Sherman, his niece, a legacy of $2,000, a legacy of $100 to Willie C. Wadsworth, a legacy, of $300 to John Scott, and the residue of his property to his sister, the plaintiff, Mary E. Perkins, for life, and then to her heirs. In August, 1875, said Babcock assigned the cause of action under said parol agreement with his wife to the plaintiff Artametta 'Sherman, with power to prosecute the same for her own benefit, except that out of any recovery thereon she was to carry out the provisions of his said will. The judge held, that as Mrs. Babcock had never performed the agreement on her part, and performance had been' rendered' impossible by her death, the-deeds by which said land was conveyed from Babcock to her,.and also-said lease, should be declared null and void, and be vacated and set aside and canceled of record, and that the assignment so made by Babcock to the plaintiff Sherman was in trust for the uses and purposes declared in his said will.

The appellants’ counsel contends that the alleged agreement was ■ not proved by evidence of that character and reliability which is • required by courts of equity in like cases. We have examined the; evidence on that point carefully, in view of .the criticisms put upon it by the appellant’s counsel, and we are not prepared to say that the learned judge who tried the case, and who had the witnesses before him, has erred in finding that the parol agreement set out-by him was in fact made. •

It is insisted on the part of the appellants, as it was at the trial, that the agreement, being in parol, is’ void under the. statute of-frauds. The answer is that made by the judgte at Special Term, that as the agreement was fully performed by the husband, to permit the wife, or the appellants, who are her heirs, to keep the fruits of the agreement, she not having performed on her part, would amount to a gross.fraud upon the plaintiffs. A court of equity will not permit the statute, which was designed to prevent frauds,- to be' used as an instrument for perpetrating a fraud with impunity. (Ryan v. Dox, 34 N. Y., 307, and cases cited.) Upon this point,, and also upon the question.whether this is one of that class of contracts of which specific performance will be enforced by a court of, equity, it is unnecessary to add anything to what is so well said in the opinion delivered by the learned judge at Special Term.

A principal witness on the part of the plaintiffs to prove the parol agreement was Charles E. Yale, the plaintiffs’ attorney, and-to that end he was permitted to testify to a conversation between himself and Mr. and Mrs. Babcock. This is urged as error, on the ground that he was interested in the event of the action, and there- * fore was incompetent, under section 829 of the Code, to testify to a conversation with Mrs. Babcock, deceased, through whom the appellants claim, and with her husband, through whom the plaintiffs claim. But it does not appear that he was interested in the result, within the meaning of the section referred to. He had merely alien as attorney for liis costs on his clients’ cause of action, which would attach to the recovery and its proceeds, and that lien was confirmed by an agreement between himself and his - clients. Buthe would be entitled to his cods, let the action result as it might.- The circumstance that his clients-were poor does, not affect the question. If the agreement had been that he should have a certain share of the recovery for hii services, or that he should receive nothing unless his clients succeeded, the case would have been different. '

It was not error to .exclude parol proof of the contents of the written agreement between Tale and his clients. If the .agreement rendered -him incompetent as a witness (and that was the theory upon which the defendants sought-to prove its contents), the proof bore directly upon the issue, and secondary evidence was inadmissible. • Tales’ • testimony did not relate to privileged communications. ( Whiting v. Barney, 30 N. Y., 342.), The litigation here is between the representatives of the -two clients, respectively, with -whom he had the communications; not between his clients and a third person, as in Root v. Wright (84 N. Y., 72), cited by the appellants.

The motion to strike out the testimony of Mr. Chase,-on the ground of his incompetency, was properly denied. Without deciding whether the objection was well founded, it is enough to say that it should have been raised before his testimony was given. (Quin v. Lloyd, 41 N. Y., 351, 355.)

These considerations meet all the exceptions in the case which call for comment, and lead to an affirmance.

Hakdin and Haight, JJ., concurred.

Judgment affirmed, with costs.


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    THOMAS H. SCOTT, Appellant, v. CHARLES STEBBINS and Others, Executors, etc., Respondents.

      Legacy — when it is charged upon the real estate of the testator — Statute of limitations — when an action may he brought within ten years.

    The defendant’s testator died August 29, 1869, leaving a will, made on January-second of that year, which contained, among others, the following provisions: “ First. I give and bequeath to my son A. Hammond Hicks, in addition- to any sum heretofore given him, the equal undivided half of my lands in Iowa, .also my watch, seal and rings; and I do further give and bequeath to my said son the sum of five' thousand' dollars, payable One year after my decease. Second. I give and bequeath to my son, John F. Hicks, the remaining equal undivided one-half of my.lands in the State of Iowa, and I do discharge him from all indebtedness to me for sums heretofore ad-vanc.ed;- and I bequeath to my son, John Frank Hicks, the sum of two. thousand dolíais, 'to be paid to him by my executors when he shall arrive at the age of twenty-five years; with interest from the time of my decease, rfiaking th'e shares of my sons equal in my judgment.” Then followed certain specific bequests, two legacies, bne of $1,000 and one of $’2,000; and then the following provisions :■ “ Seventh.- I give, grant, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, not herein effectually disposed of which Imay own at the Gime of my decease, to Charles Stebbins, Jr., of Oazenovia, in trust for the following purposes, viz : 1st. - To apply the interest thereof, or so much thereof as may be necessary, for the comfortable support of my father during his natural life. 2d. Upon and after the death of my said father out of. the proceéds of said residuary estate to pay to .the Oneida Conference Seminary, located at Cazenovia, the sum of fifteen thousand dollars, and'to pay the balance of said residuary estate, with any unexpended income thereof, if any, to my said two
    • sons, share and share alike; and I authorize -and empower said Stebbins to sell and dispose of said property herein devised- and bequeathed to him in trust at public or private sale, and upon such terms and conditions as he may think best for the purposes aforesaid.” He then appointed Stebbins and two others executors.
    In December, 1868, the testator inventoried his personal property at $22,500. At the time of his death his'debts amounted to §6,775, while his personal property realized only $10,650.

      Held, that the legacies to the sons were charged upon the real estate.
    That until the accounts of the executors had been settled by the surrogate the executors were necessary parties to an action brought against the trustee to enforce the payment of any deficiencies in the legacies, and that as they could only be so joined with him in an equitable action, this action might be brought at any time within ten years from the time the cause of action accrued.

      Appeal from a judgment dismissing the complaint, entered on the decision of the court upon a trial at the Onondaga Special Term. -
    This action -was brought against the executors of the will of Russell F. ITicks, deceased, and the trustee appointed by said will, to have a legacy of $5,000 given by said will to A. Hammond Hicks, the plaintiffs assignor, declared a lien on the lands devised by said will to said trustee, and paid out of the proceeds thereof. The testator died on the 29th of August, 1869, leaving a will written on the second of January preceding, which contained the following provisions material to the present case : “ First. I give and bequeath to my son, A. Hammond Hicks, in addition to any sum heretofore given him,, the equal undivided half of my lands in Iowa, also my watch, seal and rings; and I do further give and bequeath to my said son the sum of five thousand dollars, payable one year after my decease. • Second. I give and bequeath to my sou John F. Hicks the remaining equal undivided one-half of my lands in the State of Iowa, and I do discharge him from all indebtedness to me for sums heretofore advanced; and I bequeath to my son John Frank Hicks the sum of two thousand dollars, to be paid to him by my executors when he shall arrive at the age of twenty-five years, with interest from the time of my decease, making the shares of my.sons equal in my judgment.” Then follow certain specific bequests, a legacy of $<1,000 to the testator’s brother, James F. Hicks, and a legacy of $2,000 to the trustee of a certain school district in the. towns of Clay and Cicero, Onondaga county, in trust for the purposes mentioned in the will. Next, as follows: “ Seventh. I give, grant, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, not herein effectually disposed of, which I may own at the time of my decease, to Charles Stebbins, Jr., of Cazenovia, in trust for the following purposes, viz.: 1st. To apply the interest thereof, or so much thereof as may be necessary, to the comfortable support of my father during his natural life. 2d. Hpon and after the death of my said father, out of the proceeds of said residuary estate, to pay to the Oneida Conference Seminary, located at Cazenovia, the sum of fifteen thousand dollars, and to pay the balance of said residuary estate, with any unexpended income thereof, if any, to my said two sons, share and share alike. And I authorize and empower said Stebbins to sell and dispose of said property herein devised and bequeathed to him in trust at public or private sale, and upon such terms and conditions as he may think best for the purposes aforesaid. Eighth. I do hereby nominate and appoint Charles Stebbins, Jr., of Cazenovia, James J. Belden, of Syracuse, and Artemas Baum, of Clay, executors of this my last will and testament.” This action was commenced on the 12th of August, 1879, more than six years after the cause of action originated or any payment was made thereon. The Special Term dismissed the complaint, holding that the legacy in question is not charged upon the real estate, and that the action is barred by the statute of limitations.

      Kennedy dé Traey, for the appellant.

      Lansing dé Lyman, for the respondents.
   Smith, P. J.:

The cases of Lupton v. Lupton (2 Johns. Ch., 614), and Myers v. Eddy (47 Barb., 263), are relied upon by the defendants’ counsel for the position that the legacy in question is not made a charge upon the real estate.. Those cases hold that the usual formal clause of a will disposing of the residue- of the estate, both real and personal, is not enough, of itself, to evince an intention in the testator to charge a general legacy upon the real estate. In the recent case of Hoyt v. Hoyt (85 N. Y. 142), the Court of Appeals referred to the doctrine of those eases without questioning its correctness, but they were evidently disposed to seek diligently in the expressions of the will and iii outside circumstances aiding its interpretation, for evidence of a purpose on the part of the maker of the will to charge the real estate, especially as, in that case, the legacy was given to one of the testator’s own blood, who had a claim “upon his forethought.” Stress was laid by Folger, Ch. J., speaking for the whole court, upon the distinction “between a legacy to a stranger, which is a mere bounty, and a legacy that is the only provision for one of the blood of the testator who has a claim to recognition and provision.” Here the legacy in question was to the- testator’s son, and we are called upon to determine whether it is not legally perceptible from the face of the will, viewed in the light of extraneous circumstances, that the testator intended to make the payment of the legacies to his sons equally secure, at least, with that of the bequest to the seminary, which was a mere bounty, but which he charged, in effect, upon the residue of the real estate as well as of the personal property. "We will refer briefly to the features of the case, which, we think, evince such intention.

Fvrst. By the terms of the will the residuary real and personal estate are blended in one mass. The trustee is authorized to sell the real estate, and its proceeds, with the personal property, are to constitute a fund which he is to apply as directed by the will. In this respect the case differs essentially from that of Bevan v. Cooper (72 N. Y., 317). It differs also from the cases of Lupton v. Lupton and Myers v. Eddy (supra), where the residuary clause was framed in words that indicated nothing more than that the testator did not intend to die intestate as to any portion of his estate. Here the residuary clause seems to indicate the testator’s intention that, for all purposes of the trust, the real estate and personal property should be put upon the same footing and that the trustee should take simply what should remain of each after satisfying all prior gifts. That the term “ residue ” relates to what should remain after the payment of legacies is apparent from the fact that the will makes no provision for the payment of debts.

Second. The will directs that the trustee after satisfying the specific purposes of the trust shall pay the remainder of the fund to the two sons of the testator, to one of whom is given the legacy in question. It is hardly to be conceived that the testator contemplated that any part of the proceeds of the real estate should be distributed between, his sons as a surplus until their legacies were paid in full. In other words, it is to be presumed that he intended that the real estate should be applied to the payment of their legacies, before there could be any remainder of the proceeds of the real estate to be divided between them. Otherwise their legacies are deferred to the gift to the seminary, whereas the presumption is, in the absence of convincing evidence to the contrary, that the testator intended to prefer his sons to a mere stranger.

Third. The legacies to the testator’s two sons are fixed at such amounts, $5,000 to one and $2,000 to the other, as, with the specific devises to them of real estate, would make their shares of the entire estate equal. This provision is significant read in connection with the subsequent direction that any surplus of the trust fund should be divided between them equally. It tends to show that by the gift to the trustee of the residue ” of the real and personal estate the testator intended only that which should remain of each kind after payment of legacies, for until the shares of the sons had been made equal, by the payment of the legacies in full, it is not to be supposed that the testator intended that any surplus should exist or that it should be divided between them equally. An equal division of the surplus would have the effect to continue any inequality that might have resulted from a deficiency of the personal property to pay the legacies in full, thus defeating the expressly declared object of the testator to make the shares of his sons equal Had he intended that the legacies should be payable out of the personal estate only, and should be deferred to the bequest to the seminary, it is to be presumed that he would have directed the surplus to be distributed among them in such way as to apply ratably upon any deficiency in their respective legacies, and thus tend, as far as possible, to produce that equality between them which he specially designed.

Fourth. Reference has already been made to the fact that the bequest to the seminary was, in effect, charged upon the real estate. Is it to be presumed that the testator intended to be less provident for his sons ? They were his only children, with the exception of a daughter from whom his affections had been alienated for several years. Such a presumption is not to be raised upon merely doubtful words. Ve are rather to found an intention to make all parts of the estate liable for the sons’ legacies upon the presumption that the testator desired and purposed that the corporation which he was favoring should not take his estate to the exclusion of the natural objects of his testamentary bounty.

Fifth. These considerations find support in certain outside circumstances. The will was made in January, 1869, and the testator died in August following. In February, he bought of his son John land in Oswego county, at the price of $4,000, of which he paid $500, and the balance he owed at the time of his death. He built a house on his land in Onondaga county after making his will, the cost of which is not shown. The fact that he thus reduced his personal property and added to his real estate, unexplained, tends to show that he regarded his real estate liable for the payment of the legacies provided for in the will. It may be suggested in answer to this, that in December, 1868, he inventoried his personal property at $22,500. If he had kept up his personal property to what it then was, and had left no considerable debts at his death, those facts, together with the estimate he then made, would have tended very forcibly to show that he relied upon his personal property to pay the legacies. But his action was the opposite of that. In January he had a balance to his credit in the Onondaga Savings Bank of over $8,500; and he reduced it before his death to a little over $300. And he left debts to the amount of $6,775, which have been paid by his executors. His estimate of the value of his personal estate was exaggerated, the executors having realized only about $10,650 from it, of which only about $2,033 was applicable to the payment of general legacies. But assuming that he thought the estimate made by him in December, 1868, was not excessive, he reduced his personal property so that at the time of his death it amounted to only about $7,500 over and above his debts, and the specific bequests in his will, other than those to be paid by the trustee, amounted to $10,000. Thus he must have known that his personal property could not pay debts and legacies, to say nothing of funeral expenses and expenses of administration. His action cannot be accounted for upon any other reasonable presumption than that he regarded his real estate as well as his personal property as pledged by his will for the payment of legacies.

A prior devise of specific real estate has sometimes been held to satisfy the residuary clause and to repel all implication of a purpose to charge the real estate. But the cases so holding have been those in which the residuary clause was in the usual form. The rule does not apply to a case where as here the ^esiduai-y clause blends the two kinds of property into one mass; and a gift of the residue so blended imports an intention that the legacies are to be first paid thereout. (See opinion oí'Folger, J., in Bevan v. Cooper, supra, 325, 326.)

We do not overlook the fact that the question above discussed was adjudged adversely to the views above expressed by a learned justice of this court at Special Term, in an action brought for the construction of this same will. The judgment in that case is not binding upon the parties here for reasons hereafter stated. No opinion was written, and with very high respect for the learning and ability of the distinguished judge who decided that ease we are unable to concur in the conclusion which he reached. We are of the opinion that the legacy is a charge upon the real estate.

Is the action barred by the six years’ statute of limitations? We think not. It seems clear that under the provisions of the will no action at law could be maintained against the executors to recover the legacy, except to the extent of the personal property received by them. They have no power of sale and no estate in the land; and the real estate being expressly devised to a third party with power of sale no trust is created in the executors to sell the land for the payment of legacies. If such trust is created, then, so far as the legacy is a charge upon the land, the only action maintainable against the executors would be an action in equity to enforce such trust. As the property devised to the trustee is not charged absolutely with the payment of the legacy, but only with so much of the same as the personal property shall fail to pay, no action at law for the payment of the legacy could be maintained against the trustee until after an accounting as to the personal property. (Elwood v. Deifendorf, 5 Barb., 398.) The complaint alleges, and the answer does not deny, that there has been no accounting or settlement by the executors. The executors are, therefore, necessary parties to an action against the trustee and they could only be joined with him in an action in equity. The case is one, therefore, in which there is no remedy at law and the six years’ statute does not apply. As the action was brought within ten years it is not barred by the lapse of time.

The adjudication above referred to in the suit brought for the judicial construction of the will, is not a bar to this action, for the reason that the plaintiff here was not .a party to that suit. Fergúson, who once owned the legacy, was made a party defendant in that suit, but prior to the commencement of the suit he had transferred the legacy to Duff any, who assigned it to the present plaintiff. Tne judgment, therefore, was not binding upon Duffany or his assignee, the plaintiff. (Duffany v. Ferguson, 66 N. Y., 482.)

The point is taken that the Oneida Conference Seminary and the father of Russell F. Hicks are necessary parties. No such defense is raised by the answer. But it is enough that the trustee is made a-party. The legal title is in him, and he represents the interests of the cestui que trusts. As well might it be claimed that in an action against an administrator to recover a debt against the estate of his intestate, it is necessary to make the next of kin, or other distributees, parties.

It follows that the judgment should -be reversed and a new trial ordered, costs to abide event.

Hakdin and Haight, JJ., concurred.

So ordered.


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    THOMAS BROWN, Respondent, v. THE BUFFALO NEW YORK AND ERIE RAILROAD COMPANY, Appellant, Impleaded, etc.

      Corporation — action by a stockholder against it — when its refusal to bring an action need not be alleged.

    The plaintiff, a stockholder in the defendant corporation, brought this action against the corporation and its president. The complaint alleged that the plaintiff had been at the time the grievances complained of were committed, and still was, a stockholder, and that the action was brought in behalf of himself and of such other stockholders as were willing to unite, etc. It also alleged that the company- and its president had converted and misapplied corporate moneys and refused to account for the same, and that it withheld dividends due to the plaintiff and kept false books of account. The relief demanded was that the defendants be compelled to account and pay over to the plaintiff his share of the moneys which ought to have been divided among the stockholders.

      Held, on an appeal from an order overruling a demurrer interposed by the corporation to the complaint, that the complaint stated a cause of action as against the defendant corporation, although it did not allege that it had refused to bring an action upon being requested so'to do.
    Appeal from a judgment, entered upon an order overruling a demurrer to the complaint.

      Sherman S. Rogers, for the appellant.

      Grover Cleveland, for the respondent.
   Smith, P. J.:

The plaintiff, a stockholder of the corporation defendant, sued the corporation and Charles G-. Miller, its president, for certain wrongful acts and omissions prejudicial to the rights of the stockholders, charged upon the company and Miller as confederates. The corporation and Miller demurred separately. Miller’s demurrer, was sustained on the ground that the complaint failed to allege that the corporation had refused to sue. The demurrer on the part of the corporation was overruled, and it is now contended that it should have been sustained upon the ground assigned for the decision upon Miller’s demurrer.

The complaint alleges that during all the time of the commission of the grievances complained of, the plaintiff has been, and still is a stockholder of said corporation, and that the action is brought in behalf of himself and such other stockholders of the company as are willing to unite, etc. The complaint charges, in substance, that the company and Miller have converted and misapplied corporate moneys, and refused to account for the same, withheld dividends due to the plaintiff, and kept false books of account, and the relief demanded is that, they account and pay over to the plaintiff his share of the said moneys which ought to have been divided among the stockholders.

As Miller’s demurrer has been sustained, the averments in the complaint touching him alone may be regarded as out of the case, and the complaint may be treated as one against the company alone.

We are of the opinion that upon the facts alleged in the complaint, the plaintiff may maintain his action against the company alone for fraudulently withholding the plaintiff’s share of moneys received by it, which ought to have been divided among the stockholders. (Angel & Ames on Corporations [2d ed.], -334, § 10 ; Prouty v. M. S. and N. I. R. R. Co., 1 Hun, 655.) The fact that Miller, the president, confederated with the company to wrong the stockholders, does not relieve the company from liability. The appellant’s counsel contends that the complaint is defective as against the corporation in not alleging that it has refused to act for the relief cf the stockholders, and in support of that contention he suggests that there is no allegation that the present board of directors or the company do now refuse to make the proper dividends, etc. But the wrongs and delinquencies charged upon the corporation are alleged, in effect, as existing and continuing down to the time of the commencement of the action, and that is enough.

"We think the complaint is sufficient as against the company, and that the order and judgment appealed from should be affirmed, with costs.

Hardin and Haight, JJ., concurred.

' Judgment and order affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. GEORGE W. COTHRAN, and Others, Appellants.

      Medical college — it cannot be formed under chapter 319 ‘ of 1848, as explained by chapter 51 of 1870 — what educational institutions may be formed under these acts.

    Chapter 319 of 1848, providing for the incorporation of benevolent, charitable, scientific and missionary societies, as explained by the declaratory act of 1870 (chap. 51), does not provide for or authorize the incorporation of medical colleges, to give instruction in the art of medicine and surgery for a compensation to be received by them, and to issue and grant diplomas to graduates. Only such educational institutions can be formed under the said acts as are connected with or controlled by some Christian church or association.
    Appeal from a judgment, entered upon an order of the Erie Special Term; overruling a demurrer to the complaint.

      Traoy G. Baker and George GUnton, for the appellants:

      Hamilton Ward, attorney-general, and A. G. Rioe, for the respondents.
   Smith, P. J.:

The defendants are charged in this action with acts of usurpation, in assuming to be a body corporate, without due authority of law, and the relief asked for is that they be adjudged not to be legally incorporated and that they be restrained from acting as a corporation. The complaint alleges" that in March, 1879, the defendants assumed to be incorporated as a medical college in the city of Buffalo, under the provisions of chapter 319 of the Laws of 1848, and of the several acts amending the same, and as such corporation to give instruction in the art of medicine and surgery, for which they demanded and received compensation, and to issue and grant diplomas to graduates, and to do all other acts pertaining to and ordinarily done by incorporated medical colleges.

The question is whether a medical college can be lawfully incorporated under the acts referred to.

The act of 1848 is entitled an act for the incorporation of benevolent, charitable, scientific and missionary societies, and the first section of the act authorizes any five or more persons possessing the qualifications prescribed by the act to associate themselves for “ benevolent, charitable, scientific or missionary purposes.” If that act stood alone a question might well be raised as to whether it was intended to authorize the formation of societies for the purpose of carrying on medical or other colleges, or any institution, whatever, which is primarily and exclusively “ educational,” and especially one in which-a compensation is demanded for the instruction furnished. An institution of the latter kind could hardly be regarded as a “ benevolent,” “ charitable ” or missionary ” institution within the ordinary meaning of those terms. In a certain sense a medical college may be termed a “scientific” institution, as it is designed to give instruction in the science of medicine, but the idea most readily suggested by the use of the term “ scientific ” in the act referred to, is that the legislature intended merely to authorize individuals to associate themselves together for the purpose of mutual co-operation in scientific investigation and pursuits.

The legislature has solved the doubt, to a certain extent, by a subsequent act declaratory of the meaning of the act of 1848. We refer to chapter 51 of the Laws of 1870. Its first section declares that the act of 1848 shall be deemed to authorize the incorporation of any society for the purpose of establishing and maintaining “ any educational institution or chapel, or place of Christian work, or any parsonage, rectory or official residence of any bishop, pastor or minister of any Christian church or association.” It is to be observed that tbe act of 1870 does not add to or vary tbe words of the act of 1848, although in its title it purports to “amend” it; but it simply declares the meaning of the earlier act, and it declares that certain educational institutions are within its scope! The defendants contend that it authorizes the establishment and maintenance of any educational institution, while it is insisted on the part of the plaintiff that it is,limited to such educational institutions as are connected with or controlled by some Christian church or association. We incline to the latter interpretation for several reasons: First. It is a well settled rule- of the common law that all legislative grants of privilege are to be liberally interpreted in favor of the public, and, as against the grantees of the monopoly, franchise or charter, to be strictly interpreted. Whatever is not unequivocally granted in such acts is taken to have been withheld. (Sedg. on Const, and and Stat. Law, 338, 339, and cases there cited in note.) That rule is fully applicable to a statute authorizing the formation of an unlimited number of corporations, and especially corporations vested with powers so directly and .vitally affecting the interests of the public as the licensing of persons to practice the art of medicine. Second. The maxim noscitur a sooiis applies. The term “ educational institution ” is classed in the statute with the terms “chapel,” “place of Christian worship” and “parsonage, rectory or official residence of any bishop, pastor or minister of any Christian church or association,” all of which imply church control. Third. The uniform policy of the State, as evinced by its legislation (unless the acts of 1848 and 1870 are exceptions), has been to create medical colleges by special charter or by special act of the Board of Regents (Laws .1853, chap. 184) prescribing various requisites, conditions and limitations looking to the increased usefulness of the institutions and to the public good. An intention to depart from that policy should not be implied from words of doubtful signification. Fourth. Furthermore, the grant of a franchise so important to the grantees and to the public as that of forming a corporation for the establishment and maintenance of a medical college with the powers claimed by the defendants ought not to be spelled out by judicial construction of doubtful language. The presumption is that if the legislature intended to confer it they would have done so in clear and unmistakable language.

The third and fourth sections of the act of 1870, relied upon by the defendants, do not strengthen the construction which they contend for. There is nothing in those sections to indicate that they refer to any other universities or colleges than those which are under church control.

The circumstance that the regents of tlie university,- in their reports, and other State officers, in their official utterances, have from time to time recognized the existence of medical colleges assuming to have been formed under the acts of 1848 and 1870, has but little bearing upon the question as to whether such institutions were legally created. The most that can be said is that those officers, finding them in existence, treated them as de facto corporations, without assuming to pass upon the question of the validity of their organization, a matter beyond the scope of their official authority.

We think the judgment and order of the Special Term should be affirmed.

Hardin and Haight, JJ., concurred.

Judgment and order affirmed, with costs.


author: Haight, J.:

text:
    JAMES DENICK, Appellant, v. WILLIAM B. HUBBARD, Respondent.

      Promissory note — ' the signing of it by a holder is not a material alteration — Extension of time — to discharge a surety it must be founded upon a good (not a usurious), consideration — Requisites of a notice by the surety requiring a creditor to enforce payment from the debtm'.

    The signing of a promissory note by an owner thereof at the end and before the signatures of the makers, without their knowledge or consent, is not a material alteration of the note and doesé not render it invalid as to those who had previously executed it.

      0happell v. Spencer (23 Barb., 584)and McVean v. Scott (46 id., 379) not followed.
    An agreement to extend the time of payment of a debt, if made in consideration of the payment of a usurious bonus is void, and does not operate to discharge the debtor’s sureties.

      In order that the failure of a creditor to enforce the payment of a debt, when requested by one who is liable as a surety therefor, shall operate to discharge the latter, the notice given to the creditor must be clear and explicit, and he must be given to understand that he is required to take proceedings in the courts to collect the debt.
    Appeal from a judgment, entered upon the verdict of a jury in favor of the defendant, at the Oswego Circuit.

      Giles S. Piper, for' the appellant.

      S. AT. Dada, for the respondent.
   Haight, J.:

This action is founded upon the following promissory note:

“ Hannibal, April 28, 1877.

“On the twentieth day of March next, for value received, I promise to pay Reuben Terpening, or bearer, eighty-two dollars, with use.

(Signed.) . “ W. B. HUBBARD.

“HENRY JAMES.

“ S. B. TERPENING. “REUBEN TERPENING.”

The note was originally executed by Henry James and S. B. Terpening, and delivered to Reuben Terpening, the payee. Reuben Terpening signed his name under that of S. B. Terpening, and transferred the note to the defendant, William B. Hubbard; William B. Hubbard subsequently transferred the note to John N. Draper. Previous to such transfer, Hubbard signed his name to ■such note at the end thereof, and above the other signatures; this he did at the request of Draper; Draper subsequently transferred the note to the plaintiff.

The first question presented on the part of the appellant is, that the signing of the note by the defendant Hubbard, at the end thereof, and above the names of all .the others to the note, without their knowledge or consent, and before the note became due, was .a material alteration of the note, so as to render it invalid to those who had previously executed it, and that the note thereby became .the note of Hubbard alone, as maker. Upon this question there is some conflict in tbe authorities. In the case of Chappell v. Spencer (23 Barb., 534), it was held, that the addition of a name to a joint and several note, under the names of the makers, was a material alteration which vitiated the instrument. This same doctrine was again held in the case of McVean v. Scott (46 Barb., 379). The opinion in each of these cases was written, by the same judge. They are the only cases in this State that we have been able to find that sustain the doctrine. On the contrary, it has been held, that such signing was not a material alteration so as to invalidate the instrument in the case of Cobb v. Titus (13 Barb., 45-49; S. C., affirmed 10 N. Y., 198). (Partridge v. Colby, 19 Barb., 248; Burton v. Baker, 31. id., 241-257; McCaughey v. Smith, 27 N. Y., 39; Brownell v. Winnie, 29 id., 400; Card v. Miller, 1 Hun, 504-506.) Our views are in accord with the latter cases cited. It is true that in those eases the signing of the additional name was under the name of the makers, but it does not appear to us that the distinc: tion is material.

We are next called upon to consider whether the defendant is discharged from liability upon the note by reason of any extension of time given by the holder to the original maker. The evidence given upon.the trial''tended to show that Hubbard signed the note as surety, that James was the maker, and the person who ought to pay the note. Evidence was also given tending to show that James' entered into an agreement with the plaintiff to forbear the payment of the debt for eight months, in consideration of the sum of five dollars, which it is claimed was paid; that this agreement was made without the knowledge or consent of the defendant or other sureties upon the note.

The law is well settled that if the holder of a note enters into an agreement with the maker by which the time for payment is extended, without the consent of the indorsers Or sureties upon the note, they become discharged from all liability thereon. Such agreement, however, must be a valid and binding agreement upon the parties, such as either can enforce against the other. The mere agreeing not to sue, unaccompanied with any consideration, without taking any new security, is not sufficient. It is but a nuebum pactum, and will not discharge the indorsers or sureties upon the note. (Halliday v. Hart, 30 N. Y., 474-488, 489.)

If the agreement made to forbear the payment of the debt was made upon a usurious premium paid for such forbearance, such agreement is in violation of the statute, and void, and does not operate to discharge the sureties. (Vilas v. Jones, 1 Comstock, 274-278; The Real Estate Trust Co. v. Keech, 69 N. Y., 248; Church v. Malloy, 70 id., 63.)

Whilst the payment of the five dollars for the extension of time would not invalidate the note, it did vitiate the agreement to extend the time of payment. The holder was not bound thereby, and could have proceeded at once to the collection of his demand.

We next inquire as to whether the plaintiff has been guilty of negligence in not enforcing collection upon his note when it matured and became due and payable. It is claimed on the part of the respondent that the holder of the note was called upon by Reuben Terpening, one of the sureties, and requested that he should proceed and collect the note; that Terpening was a prior surety upon the note to the defendant, and that by discharging Terpening, this defendant would also be discharged. Whatever conversation there was upon the subject was had with Draper, the prior holder of the note. If the plaintiff purchased this note before maturity, and for full value, as he claims, then he occupies the position of an innocent holder, and would not be bound by this conversation. It is only upon the theory that he purchased after maturity, and took the note with all its infirmities, that he could be bound. Terpening testifies that “Draper called at my house a few days before the note was due and said to me that he held a note with my name on it and his business there was to see if I would sign an extension; Mr. James wanted him to hold the note a certain time; I don’t recollect how long, but I think till fall; I told him I was not to pay the note and it was not for me to give consent to any extension; told him to go and see the other parties; that I wouldn’t give any consent but that I would see him again before the note became due ; the last day of grace I went to Fulton to see Draper; he was in his brother’s grocery store; I asked him if he had seen the other parties to the note; he said he was going to have the money ; that he had got to have the money on the note; I told him I was glad of it, that 1 waavted it collecced immediately ; that it was collectible and I did not wcunt my name on it any longer; tie said that James had made arrangements with James Deniclc to take up the note.” Draper testified: “ Reuben Terpening never told me to go on and collect the note as I recollect; I don’t remember of ever having any conversation with him at my brother’s store; I don’t remember positive, but might have had; the conversation I related was before the note was due at his house ; I do not say he did not come into the store and tell me to collect the note ; he came in there and we had some conversation about the note; I don’t remember what it was.”

This is all the evidence that was given upon the subject. There is also a conflict in the evidence as to the time the plaintiff purchased the note in suit. He testifies that he purchased it on the 30th day of March, 1878; that he paid full value for the note including the interest that had accrued thereon. If so he purchased before maturity and is an innocent holder. Other evidence, however, was given tending to show that he purchased the note at a later date and after it had matured. It appears from the evidence that at the'time the note matured and became due that James was solvent. It does not appear that he has since become insolvent. It does, however, appear that he has departed from the State and now resides in Ness city, in the State of Kansas. "Whether or not he still has property in this State does not appear from the evidence.

A surety upon a note or other instrument has the right-to give the creditor notice to proceed against the principal and enforce collection of his demand by action, if not otherwise paid; and a failure to so proceed within a reasonable time will operate to discharge the surety, provided it be shown that the surety suffers by such delay. The solvency of the principal debtor at the time the surety requires the creditor to proceed with the collection of his demand, and the subsequent insolvency of the debtor, are good cause for discharging the surety. The notice of the creditor, however, must be clear and explicit, and the creditor must be given to understand that he is required to take proceedings in the courts to enforce the obligation, • otherwise the surety will not be discharged. (Hunt v. Purdy, 82 N. Y., 486; Toles v. Adee, 84 id., 222-239.)

In the case at bar, after Draper had told Terpening that he had got to have the money on the note, Terpening merely replied that he was glad of it; that he wanted it collected; that he didn’t want his name on it longer. He was then told by Draper that James had made arrangements with the plaintiff to take up the note. To this information Terpening made no response. Was Draper by this conversation given to understand that Terpening then demanded that he should institute legal proceedings to collect the note, or else release him as surety? We think not. The conversation does not bring the parties within the rule of Hunt v. Purdy (supra). In that case the surety said to thb holder of the mortgage, “ Collect that mortgage in the spring; don’t let it run over the. time it is due.” And yet the court in that case held that the words were not sufficient to give notice to proceed to collect by action.

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

Smith, P. J., and Hardin, J., concurred.

So. ordered.


author: Haight. J.:

text:
    ALFRED BENNETT and Others, Respondents, v. HENRY EDWARDS, Appellant.

      Attachment — what must be stated in an affidavit used upon an application therefoi' — ' when and in what form the afflda/dt may be made by one not having personal knowledge of the facts — proceedings to compel the making of an affidavit, not required.

    Tie affidavit upon which an attachment is applied for should be explicit and state in clear and concise terms a cause of action, and such facts as will satisfy the court or officer to which or to whom the application is made of the intent and attempt of the defendant to cheat and defraud his creditors. In general these facts should be slated upon positive knowledge, but when, from the circumstances of the case, they cannot be so stated they may be stated upon information and belief, giving the names of the persons and the sources from which the information is derived and the reasons why the affidavits of those having positive knowledge cannot be procured.
    Where the party having positive knowledge of the facts refuses to make an affidavit the applicant is not obliged to procure an order, under section 885 of the Code of Civil Procedure, requiring him to appear before a referee and submit to an examination.

      Appeal from an order of the Onondaga Special Term, denying a motion to vacate a warrant of attachment.

      Edward H. Eisley, for the appellant'.

      S. M. Imdsley, for the respondents.
   Haight. J.:

The warrant of attachment was issued upon the ground that the defendant has departed from the State with, intent to defraud his creditors, or to avoid, the service of a summons; or that he has removed or is about to remove property from the State, with the intent to defraud his creditors; or has assigned, disposed of or. secreted, or is about to assign, dispose of or secrete the property with like intent. It is contended on the part of the appellant that the affidavits are not sufficient to authorize the issuing of the attachment; that the facts relied upon are stated upon information and belief, and not from positive knowledge, etc.

The rule, as we understand it, is that the affidavits upon which an attachment is granted should be explicit arid in clear, concise terms state a cause of action, and such facts as will satisfy the court or officer to whom the application is made of the intent and' attempt of the defendant to cheat and defraud his creditors. In general, these facts should be stated upon positive knowledge; buf where, from the circumstances of the cáse, they cannot be so stated, they may be stated upon information and belief, giving the names of the persons and the sources from which the information is derived, and the reasons why the affidavits of those having positive knowledge cannot be procured ; we do not understand this rule to be in conflict with that stated in the case of Yates v. North (reported in 44 N. Y., 274); and followed in the case of the Steuben County Bank v. Alberger (reported in 78 N. Y., 252). In that case the court says: “Neither a general statement of fraud nor a statement on information and belief, without showing that the person from whom the information was obtained is absent, or that his deposition cannot be procured, is sufficient to authorize the granting of an attachment.” From this the appellant argues that if the person having positive knowledge is not absent from the State his deposition can be procured; that in case he refuses he can be compelled, under section 885 of the Code of Civil Procedure. True, he can be required to attend before a referee and submit to an examination. It has been so held by the Court of Appeals in the case of Allen v. Meyer (reported in 73 N. Y., 1). The court in that case, however, did not hold that such proceedings were necessary, and we think ought not to so hold. For, if it should be held to be the inflexible rule that the affidavit or deposition of the person having positive knowledge of the fraud must be procured where it is impossible to enforce it by legal process before an attachment can issue, it would, in most cases defeat the remedy that the statute sought to afford. Persons seeking to defraud their creditors are not apt to advertise the scheme by which they purpose to accomplish the result. In many instances a few hours time is all that they require. A merchant in the city of Buffalo can pack up a stock of goods during the night, and before noon of the next day have them sáfe in Canada. The creditor ofttimes has but short notice of the intended fraud. The attachment has to be procured at once, or it is of no use-. If he should be required to resort to proceedings under section 885, in most cases the debtor would get notice and succeed in removing or disposing of the property before the attachment could be obtained.

In this case Smith was the clerk, and kept the books of the defendant. He had positive knowledge of many facts and circumstances tending to show an intent to cheat and defraud the creditors. Smith had brought an action to recover and secure his own claim. Upon his own affidavit he had procured an attachment. He was requested by the attorney for the plaintiff to make an affidavit stating the facts as stated in his own affidavit in the case, but he refused. He was seeking to secure his own claim, and did not care to have it embarrassed by others. Under these circumstances we think the plaintiff should be excused from procuring an affidavit from Smith. The affidavit already made by him is on file in the office of the clerk of the county, and the person making the affidavit upon which the attachment was issued, refers to such affidavit, quotes it in this affidavit and states that to be the source of his information, and that he verily believes it to be true. We think this to be a compliance with the rule. The facts stated in the affidavit of Dtuimore, upon his own knowledge, together with the facts stated by him upon information and belief, which information was derived from the affidavit of Smith, make out a case in which a warrant of attachment should issue upon the grounds upon which the attachment was applied for. (Schoonmaker v. Spencer, 54 N. Y., 366.)

Order affirmed, with ten dollars costs and disbursements.

This result makes it unnecessary to further consider the motion to dismiss the appeal. That motionis denied without costs to either party.

SMrrH, P. J., and Hardin, J., concurred.

So ordered.


text:
    GEORGE FOX, Respondent, v. GILES EVERSON and Others, Appellants.

      Sale of seed — duty of the purchaser to examine it — measure of damages if clover seed he mixed with seed of plantain — how damages to land ma/y he proved.

    The plaintiff applied to one of the defendants who kept a seed store, to purchase some clover seed. He told him he wanted good clean seed; that he could not see for himself as he had left his glasses at home and that he would have to leave it to the defendant to put it up. The defendant said that they always examined their seed before buying it, with a microscope; that they would not have bad seed in their store, and added, “leave it to me and I will put up pure clover seed.” The plaintiff took the seed home mixed it, without making any examination of it, with some timothy seed worth about three dollars a bushel and sowed the mixture upon his farm. While he was sowing it one of his neighbors examined the seed, discovered it contained plantain seed and called the plaintiff’s attention to that fact The plaintiff sowed about one acre more and then stopped. This action was brought by him to recover the damages occasioned by the presence of the plantain seed.
    Held, that it was his duty to have examined the seed when he reached home, and that if by a fair examination he could then have discovered the plaintain seed he was not entitled to recover.
    That, if entitled to recover, the measure of damages was the difference between the value of pure clover seed and that of the seed actually sown, together with the difference between the value of the farm before the sowing of the plantain seed and its value after it had been sown.
    That the value of the timothy seed with which it was mixed could not be recovered.
    That in determining the damages sustained to the land it was competent to show the extent, to which the weed had grown upon it, the expense and labor, together with the difficulty of removing and killing it, and the extent to which it would interfere with the growth and production of crops.

      Appeal from a judgment, entered upon the verdict of a jury for $550 damages in favor' of the plaintiff, at the Onondaga Circuit.

      Randall & Randall, for the respondent.

      O. B. Sedgwick, for the appellants.
   Haight, J.:

This action was brought to reco.ver- damages alleged to have been sustained by the plaintiff upon the purchase of four bushels of clover seed, at eight dollars per bushel. ’ The defendants were the keepers of a feed store in the city of Syracuse. The plaintiff claims that he went to their store and asked for some medium sized clover seed, of the defendant Frisselle; that he told him he wanted some good clean seed ; that he could not see for himself, as he had left his glasses at home, and would leave it to him to put it up for him. The defendant to whom application was thus made, said that they always examined their seed before they bought it with a magnifying glass, and would not have bad seed in their store. He said, “ leave it to me and I will put you up pure clover seed.” The seed thus purchased of the defendant was taken home by the plaintiff' and mixed with twelve bushels of timothy seed, worth about three dollars per bushel, and was then sowed upon the plaintiff’s farm. While it was being sowed, one of the'plaintiff’s neighbors examined the seed and discovered that it contained plantain seed, and called the plaintiff’s attention to it-The plaintiff thereupon sowed about an acre more, and then stopped. The plaintiff, after arriving at home, did not make any examination of the seed to see whether it was pure clover seed, prior to his attention being called to it by his neighbor. There was some conflict in the evidence upon the trial as to whether plantain seed was plainly visible, and easily distinguishable from clover seed. At the conclusion of the evidence the defendant requested the court to charge the jury that a purchaser of personal property has no right to proceed without inquiry or examination, and use an article which will damage his farm or business, relying upon a warranty which only goes to the nature or character of'the article, and not to the effect of using it; and then hold the vendor responsible for tbe remote consequences of his own action, this was refused, and exception taken. The defendant also asked the court to charge, that if the plantain seed mixed with ,the clover seed was so plainly visible that a farmer, examining with a view of purchasing it for use, could have discovered them, on a fair examination, that then the ¡Dlaintiff is not entitled to recover. This the court declined to charge, and the defendant excepted.

"We are of the opinion that the requests were proper and should have been charged. "Whilst the representations made by a vendor respecting the property sold may relieve the purchaser from the use of that care, caution and observation that he would ordinarily be bound to exercise in the purchase of property, still it will not do to permit the vendee, having the property before him and defects plainly visible, to shut his eyes and rely solely upon the representations. In the case under consideration' at the time of making the purchase the plaintiff did’ not have an opportunity to see and examine the seed. His eyesight was defective; his glasses were left at home and without their aid he was unable to see. He was, therefore, at that time excused from making the examination and had a right to rely upon the representations of the vendor. This excuse, however, did not exist after he had taken the seed home where he had the opportunity of inspecting it before spreading it over his farm. It is possible that on making such-an inspection he would not have discovered the presence of plantain seed. If, however, it was plainly visible and easily distinguished from the clover seed, -it is probable he would have discovered it. We think that under the circumstances of the case it was the duty of the court to have submitted to the jury the question as to whether of not the plaintiff ■was guilty of negligence in not making an inspection of the seed before using1 it. (Vandewalker v. Osmer, 65 Barb., 556; Milton v. The Hudson River Steamboat Co., 37 N. Y., 210; Hamilton v. McPherson, 28 id., 72; Day v. Pool, 52 id., 416; Miller v. The Trustees of the Mariners’ Church, 7 Me., 38.)

It is contended on the part of the appellants that an improper measure of damages was adopted. The court instructed the jury that the plaintiff might recover as an item of damages the value of the clover seed, the value of the timothy seed, and also damages to the farm on account of the sowing of the plantain seed thereon. Damages for the breach of a contract are those which are incidental to and directly' caused by the breach, and which may reasonably be presumed to have entered into the contemplation of the parties. Speculative profits or accidental or consequential losses cannot be recovered. It is the duty of a person suffering from the breach of a contract to make reasonable exertions to render the injury as light as possible. The ordinary, rule in the sale of goods is that the party may recover the difference between the value of the goods, if they had corresponded with the warranty, and their actual value. This rule, however, has its exceptions, as where the goods are purchased for a particular purpose and that pairpose is made known to the vendor. In such case a recovery can be had for the damages sustained by reason of the use of the articles for that puipose. (Milburn v. Belloni, 39 N. Y., 53; Hamilton v. McPherson, 28 id., 72.)

If, after the plaintiff had discovered’ that plantain was growing upon his farm, he could, by reasonable means, have rooted it out, and prevented its further growth, it was his duty to have done so. He would not be justified in lying id'e and permitting the noxious weed to seed and spread over his entire farm, and thus enhance his damages. He is only entitled to recover such damages as he has actually sustained, and that necessarily would be expected to follow from the sale of the impure seed. It is contended on the part of the appellant that he is not entitled to recover any damages resulting to the land; that the evidence does not show that the plaintiff stated to the defendants, or either of them, at the time of making the purchase, that he wanted the seed for the purpose of sowing. Ordinarily this evidence would be necessary, in order to entitle the party to recover for such damages. But was not this intended use understood by the parties at the time of the sale ? Clover seed has little, if any, commercial value, except for the purposes of seeding. It is merchantable, becfuse it can be used for that purpose. We think it must have been understood by the defendants at the time of selling this seed that it was for the purpose of sowing it upon land. This being within the contemplation of the parties, the defendants are properly charged with such damages as must of necessity follow the sowing of the impure seed. Nothing, however, was said about the intention of the plaintiff to mix the seed with timothy seed; and it cannot be contended that such act was understood by the defendants, or contemplated by them, in their contract. For this reason there could be no 'recovery for the timothy seed. The difference in value between pure clover seed and the seed actually sown, fully compensates the plaintiff for what he lost upon the purchase. The difference between the value of the land or farm before the sowing of the plantain seed, and the value of it after the sowing, furnishes him full compensation for the injury to the land, and in our judgment becomes the measure of damages in the case. For the purpose of determining'the damages to the land it is doubtless competent to show the extent to which the noxious weed had grown upon the land from the seed sown; the expense and labor, together with the difficulty of removing and killing it; the extent to which it would interfere with the growing and production of crops.

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

Hardin, J., concurred; Smith, P. J., concurred in result.

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