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

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES DUFFY, Respondent, v. THE PRESIDENT AND TRUSTEES OF THE VILLAGE OF WEST TROY, Appellants.

      Mamda/mus — party enjoined is excused from obeying it — A judgment enjoining the doing of an act — not vacated, on motion, in a collateral proceeding — Chamberlain of a milage, bound by a judgment enjoining the village.

    It is a sufficient excuse to the trustees of a municipal corporation, for disobedience of a writ of mandamus, that they have been enjoined by a judgment of the court, regularly entered in an action brought against them, from doing the very acts which, by the writ of mandamus, they are ordered to do.
    A writ of mandamus should not be granted where there is doubt as to the rights of the claimant, as in such case he should be left to his common law remedy.

      It is not proper for the court, on motion of a creditor of a municipal corporation (seeking a mandamus against its officers requiring them to pay his claim), to set aside and vacate an injunction contained in a judgment, regularly and without collusion obtained in an action (to which the creditor was not a party), against such officers forbidding them to pay such claim.
    The chamberlain is but the agent or servant of a village, and a judgment which enjoins the doing of an act by the president and trustees of the village, is binding on the chamberlain, although he is not a party to the action or named in the judgment.
    Appeal from an order, made at the Albany Special Term, requiring the president and trustees of the village of West Troy to order, and the chamberlain to pay to James Duffy, a justice of the peace of the town of Watervliet, the sum of $10J for services rendered, or, in default, that an. attachment issue, etc., and vacating and setting aside an injunction order and judgment, obtained by Morgan L. Taylor, restraining the said president, chamberlain and trustees from paying the said amount.

      John II. Gleason, for the appellants.

      J. H. Chite, for the respondent.
   Learned, P. J.:

A peremptory mandamus was issued by the Special Term requiring the president and trustees of West Troy to order the chamberlain to pay cei’tain moneys to Duffy, and requiring John Hart, the chamberlain, to pay the same. On the return thereto it appeared that they had not obeyed. Thereupon, an order was made to the same effect, and, in default of their so doing, it was ordered that an attachment issue. •

In the same order there was a further provision reciting that notice had been given to one Morgan L. Taylor, who, it was claimed, had obtained an injunction against the president and trustees, forbidding their paying this money to Duffy, and that Morgan L. Taylor had appeared, and thereupon it was ordered that the injunction obtained by Morgan L. Taylor be set aside.

From this order the present appeal is taken. On the papers returned it appears that Taylor commenced an action against the trustees of West Troy, to restrain their payment of this money to Duffy, that the action proceeded to judgment, and that at a Special Term, held in October, 1879, a final judgment was granted, perpetually restraining the trustees of West Troy from paying this money to Duffy. It further appears that, at a Special Term held in July, 1880, on notice to the plaintiff Taylor, the defendants in that action, viz., the Trustees of West Troy, moved to vacate that judgment, and that the motion was denied.

Thus there was not only a final judgment for a perpetual injunc-' tion in favor of Taylor against the Trustees of West Troy, but there was the refusal of the court to vacate that judgment on the application of those defendants. That refusal appears to have been acquiesced in, and remains conclusive between the parties.

It was, therefore, not within the proper duty of the court, on a proceeding by Duffy to obtain a mandamus, to give Taylor notice, and thereupon to vacate a regular judgment which he had obtained against the trustees of West Troy. Judgments are not to be attacked in this collateral manner-, especially when the question of vacating the judgment has previously been decided unfavorably upon an application by the defendants themselves.

So far as the order appealed from vacates the Taylor judgment, we think it was erroneous.

The question then arises, did the judgment of perpetual injunction operate as an excuse to the trustees for not obeying the mandamus. In the first place, it does not appear that that judgment was obtained by any collusion. The plaintiff in that suit, claiming to be a taxpayer of West Troy and freeholder, alleged that this claim of Duffy’s was illegal, and that the trustees were about to pay it, and, on that ground, asked for a perpetual injunction. Now, it is very possible that the trustees might, by proper pleading, have insisted that Duffy was a proper and necessary party, and perhaps they ought to have done so. But their neglect to do this does not show collusion. We must, therefore, consider that the judgment was recovered in good faith.

Next, it is true that the judgment is not conclusive upon Duffy. He is not prevented thereby from suing the village of West Troy on his claim, and the judgment will not bar such an action.

But the question here is, whether the trustees could obey the mandamus when the same court had forbidden them to do the very act which the mandamus required. It seems to us that this judgment excused them.

A writ of mandamus is not to be granted when there is doubt. Then the claimant must be left to his common law remedy. (See Charter West Troy, 1819, chap. 52, § 32.) And when it has been granted, if the persons to whom it is directed have a good excuse for not obeying it, they should not be punished for disobedience.

But still another question remains. The mandamus was directed not only to the trustees but also to the chamberlain of West Troy, and it directed him to pay this money to Duffy. It does not appear that there had been granted any injunction against the chamberlain forbidding him from paying. The mandamus, so far as can be discovered from the papers, was granted upon notice to Hart, the chamberlain, and no appeal has been taken from the order granting the ma/ndamus.

The present appeal is from the order made on the return to the mandamus, although no actual return appears on the papers, and the only question, therefore, is whether the parties to whom the mandamus was directed have excused themselves for their disobedience. So far as we can discover, the chamberlain makes no excuse.

It is not necessary for us to decide whether or not the mcmdamtts could have been sustained if the appeal had been taken from the order granting the same. That question is not before us. Nor is the question before us as to the merits of Duffy’s claim.

The order appealed from, therefore, should be reversed.

1. As to the part which vacates Taylor’s injunction; and

2. As to the part which orders the trustees of West Troy to order the payment of this money, or, in default, that an attachment issue against them; and

3. As to the chamberlain for the reasons stated by Judge Boardman.

Boardman, J.:

The chamberlain is but the agent or servant of the village. A judgment enjoining the defendant from paying Duffy is binding on the chamberlain, and excuses him as well as defendant. They are in law one and the same. It would be wrong while the defendant is enjoined from paying Duffy to order or allow its financial officer to pay. The same reasons which protect the village should equally protect the chamberlain.

The order should be reversed, with ten dollars costs and printing.

Bookes, J.:

I am of opinion that the order should be reversed m toio, for the reasons above suggested by Boardman, J.

Order reversed, with ten dollars costs and printing disbursements.


source: Caselaw Access Project

author: Bocees, J.

license: Public Domain

text:
    ESTHER K. PORTER, Appellant, v. WILLIAM H. COBB, Respondent. (Five Cases.)

      JDouble costs — Actions commenced in the Justices’ Court, and brought in'o the County or Supreme Court, core within section 3358 of the Code — amount of costs determined by the lam in force at time of taxation.

    Appeal from an order, made at the Ithaca Special Term, denying plaintiff’s motion for a new taxation of costs, and that double costs taxed by the defendant herein (a collector of taxes) be disallowed.
    The court at General Term said: “We have here five cases, all between the same parties, and alike in all respects from their commencement to the present time, in so far as the question of law involved in the appeals are concerned. They have been hitherto considered together (22 Hun, 278), and the present appeals in them were argued and submitted on like papers, briefs and points, and they in reality involve one and the same question, both in fact and law.
    The present appeals raise the question whether the defendant, a public officer, who had final judgment in his favor, is entitled to double or additional costs under section 3258 of the Code of Civil Procedure, and this is here the sole question presented for discussion.
    The actions were commenced m Justices’ Court, and final judgment on appeal was awarded to defendant in each case. On the taxation of costs, the clerk allowed to the latter, against the plaintiff’s objection, the usual costs, and one-half thereof in addition, under section 3258 of the Code above cited. The Special Term sustained the action of the clerk in that regard. The question here presented is whether this ruling by the clerk and Special Term was right.

      The allowance of costs to a party is controlled by the law in force at the time they are awarded. (Sup. v. Briggs, 3 Denio, 173 ; Ackley v. Tarbox, 19 Abb., 119; Jackett v. Judd, 18 How., 385.) Section 3258, above referred to, was in force when judgment was given in these cases. This section differs somewhat from the provision of the Revised Statutes touching the subject in hand, as will be seen on comparing its language with the former law; the decisions, therefore, under the latter have no bearing on the present question. The section of the Code cited gives double costs in terms to the defendant in whose favor “final judgment is rendered” in actions brought for acts done by him as a public officer, also for omission of official duties. It therefore embraces these actions, admitting that they belong to the class of actions above described. Cobb Avas defendant in the actions, although appellant in this court. The action AAras for money only, and final judgment was rendered in his favor.
    But it is urged that section 3258 does not embrace or have application to actions commenced in Justices’ Court. Let us examine this suggestion. Additional or double costs are given by section 3258, which section comes under the second title-of chapter 21 of the Code of Procedure. Subdivision 13 of section 3347 restricts the application of this second title of chapter 21 to actions “in one of the courts specified in subdivision fourth” of that (sec. 3347) section. The courts specified in this subdivision fourth are, the Supreme Court, Superior City Court, Marine Court of the City of New York and County Court. Thus section 3258 applies generally to actions in these courts. The restriction referred to is “ to an action in one of the courts specified in subdivision fourth ” of section 3347. The restriction is not to the actions specified in that subdivision. If this were so, then the point urged by the appellant’s counsel would be tenable. But the limitation or restriction pointed out and relied on is, to action in the courts specified in the subdivision. Actions, therefore, commenced in Justices’ Court and- brought into the County Court, and thence into the Supreme Court on appeal, where final judgment is rendered for the defendant, are within the provision of .section 3258, which gives, in certain cases, additional or double costs.”
    The question remained, whether the actions in these cases were against the defendant for acts done by him by virtue of his office, or for alleged omissions by him to do that which it was his official duty to perform. It was held that they were not, and that consequently the defendant was not, for that reason, entitled to double costs.

      J. McGuire, for the appellant.

      Waters & Knox, for the respondent.
   Opinion by

Bocees, J.

Present — Learned, P. J., Bookes and Boardman, JJ.

The part of the orders appealed from reversed, and motion to strike out additional costs allowed by clerk granted, with ten dollars costs in one case only, with printing disbursements in others.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE ULSTER AND DELAWARE RAILROAD COMPANY, Appellant, v. EDWARD BURHANS, Town Clerk, etc., Respondent, Impleaded with Others.

      Review of assessment under chapter 269 of 1880 — the assessment rolls should he delivered to the town cleric.

    Appeal from a judgment entered upon an order, entered at the Delaware Special Term, quashing a writ of certiorari, directed to the assessor and town clerk of the town of Roxbury, for the purpose of reviewing the assessment of the appellant’s real estate in that town.
    The court at General Term said: “ This proceeding was taken under the provisions of chapter 269 of the Laws of 1880,' to review and correct the assessment roll of the town of Roxbury, in the county of Delaware.
    The assessment roll was completed and verified by the assessors on the nineteenth of August; and on that day those officers delivered the roll in duplicate, one to the supervisor, the other to the town clerk. On the twenty-eighth of the same month they gave public notice, as required by section 9 of the act referred to, that the roll had been finally completed and delivered by them to the town clerk, and that it would remain open at his office to pub. lie inspection for the period of fifteen days thereafter. Within the time so specified, the writ of certiorari herein, directed to the town clerk and assessors, was obtained and served. Return was made by those officers respectively; whereupon a motion was made at Special Term to quash the suit as to the town clerk and to strike out his return thereto, and such motion was granted upon the ground, as stated in the order, that he was not the legal custodian of the assessment roll, and not a proper party to the suit. In this we are of the opinion that the Special Term was in error. Section 9 of the act under which these proceedings were instituted provides as follows : “ All assessment rolls, when finally completed and verified by the assessors, shall, in towns, on or before the first day of September, and in incorporated villages and cities at the time prescribed by their respective charters or laws applicable to them, be delivered to the town, village or city clerk, or other officer, to whom such rolls are or may be required by law to be delivered, and there to remain with such clerk or other officer for a period of fifteen days.” Omitting such parts of this section as have application to incorporated villages and cities, it reads thus: “All assessment rolls, when finally completed and verified by the assessors; shall in towns, on or before the first day of September * * * be delivered to the town clerk * * * and there to remain with such clerk * * * for a period of fifteen days.” Thus read, the law is clear and specific, and for the period of fifteen days the town clerk is made the custodian of the roll. But it is insisted that the clause “ or other officer, to whom such rolls are or may be required by law to be delivered,” applies to towns as well as to incorporated villages and cities, and that the law (1 R. S. [6th ed.], 939, § 26) requires the assessors to deliver the roll to the supervisor. But a fair reading of section 9 makes the clause above cited refer and apply to villages and cities when, by their repective charters, the roll is directed to be delivered to some other officer than the village clerk. A different construction of this section would wholly ignore the town clerks of towns in all cases. Yet this was not intended, because the law declares that the roll shall be delivered (in some cases) to the town clerk. The assessors understood it to be their duty to deliver the roll to the town clerk, and they did so deliver it, and gave the notice required by the law that it was with him for public inspection. It may be that the provision of the Revised Statutes requiring a delivery of the roll to the supervisor remains in force. In that case it would be incumbent on die assessors to deliver the roll in duplicate, as they actually did in this case, one to the supervisor, the other to the town clerk. But that is not the question here. The question here is whether the assessors were required by section 9 of the act of 1880 to deliver a completed and verified roll to the town clerk, as they in fact did do. We think this was required of them by law.
    Again, they did in fact deposit the roll with the town clerk, and gave public notice that it would remain with him at his office for fifteen days for public inspection. He thus became the custodian in fact of the roll, and of the only completed and verified roll to which the attention of the public was called by the assessors’ notice. The writ would therefore properly go to him under the provisions ■of sections 2129 of the Code of Procedure, which declares that “ the writ must be directed to the body or officer whose determination is to be reviewed, or to any other person having the custody of the record or other papers to be certified, or to both if necessary.” ■ So the writ was well directed to the town clerk, who was at the time an actual custodian of the roll. This provision of the Code was intended, in part at least, to prevent a failure of justice through the shuffling of the roll around from one person or officer to another, before its purpose could be made effectual by its service.”

      P. Ocmtine, for the relator.

      J. H. Maynard, for the respondent.
   Opinion by

Bocees, J.

Present — Learned, P. J., Boardman and Bockes, JJ.

Judgment reversed, with costs.


author: Learned, P. J

text:
    William C. Church, as Administrator, etc., Respondent, v. Seth Howard, Appellant, Impleaded, etc.

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

Learned, P. J


author: Boardman, J.

text:
    Thomas Edwards v. George D. Woodruff and others, Respondents, Impleaded with Addison J. Wheeler, Appellant.

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

Boardman, J.


author: Bockes, J.;

text:
    Emmett O’Neill, Executor, etc., Appellant, v. William W. Bender, Respondent.

   Order reversed, with ten dollars costs and printing disbursements. Opinion by

Bockes, J.;

Learned, P. J., taking no part.


text:
    In the Matter of the Guardianship of John A. Thompson, as Special Guardian of Catherine E. Dodge.
   Order, so far as it affects Mrs. Kamerlin, reversed; in other respects, modified in accordance with opinion of

Boardman, J.

No costs of appeal to any party.


text:
    The People of the State of New York, Plaintiffs in Error, v. John O’Connell, Respondent in Error.

   Judgment of conviction affirmed. Opinion by

Boardman, J.


author: Bookes, J.

text:
    John P. Bloomingdale, Appellant, v. David Martin and James Ryall, as Executors, etc., Respondents.

   Order affirmed, and judgment for defendants, with costs. Opinion by

Bookes, J.


author: Learned, P. J.

text:
    Jackson S. Carpenter, Respondent, v. Oscar M. Soule, as Executor, etc., Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Sewell S. Morgan, Respondent, v. James F. Clark, Sheriff, etc., and Orion Haight, his Deputy, Appellants.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Boardman, J.;

text:
    Rensselaer Riley and others, Appellants, v. John C. Hulbert and others, Respondents.

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

Boardman, J.;

Bockes, J., taking no part.


text:
    Charles H. Bowne v. William H. Bowne, Appellant, Elliott Lynde, Respondent, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Learned, P. J., and Boardman, J.;

text:
    James C. Best, Respondent, v. Benjamin F. Lyon and William H. Ten Eyck, as Executors, etc., Appellants.

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

Learned, P. J., and Boardman, J.;

Bookes, J., dissenting.


author: Bockes, J.

text:
    John Rohrbach, Respondent, v. The Germania Fire Insurance Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Rensselaer Riley and others, Appellants, v. John C. Hulbert, Respondent.

   Judgment affirmed. Opinion by

Boardman, J.;

Bockes, J., takes no part.


text:
    Harriet E. Hess, Respondent, v. John Sprague, Appellant.

   Judgment affirmed. Opinion by

Boardman, J.;

Learned, P. J., dissents.


text:
    Ellen Sitterly, Respondent, v. Andrew Gregg, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Boardman, J.;

Learned, P. J., dissents.


text:
    Ellen Urquhart. Respondent, v. The City of Ogdensburg, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    Isaac Krofft, Respondent, v. Junius Collins, Appellant.
   Judgment of County Court and justice reversed, with costs. Opinion by

Bocees, J.


text:
    John H. Kiersted and others, Respondents, v. Harriet M. West and Frank D. West, as Administratrix, etc., Appellants.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    James R. Wilmott and others, Commissioners of Highways, etc., Appellants, v. Moses Bartron, Respondent.

   Judgment of County Court affirmed, with costs. Opinion by

Bocees, J.


text:
    Samuel Law, Respondent, v. Luther S. McDonald, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Bocees, J.


text:
    Catherine E. Dodge, by Guardian, Respondent, v. Joseph T. Stevens and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


text:
    Norman Porter, Appellant, v. John Beale, Respondent.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Bocees, J.


text:
    Elizabeth C. Bennett and others, Appellants, v. Mary Bundy and Martin Swornberger, Respondents.
   Judgment affirmed, .with costs. Opinion by

Boardman, J.


text:
    Thompson Manning and others, Executors, etc., Respondents, v. Samuel Baker, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Bocees, J.


author: Board-man, J.;

text:
    Annie Dwyer, as Administratrix, etc., Respondent, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Appellants.
   Judgment and order reversed, and new trial granted, costs to abide event. Mem. by

Board-man, J.;

Learned, P. J., not acting.


text:
    Luther T. Fox, as Trustee, etc., Respondent, v. Henry Smith,, as Executor, etc., and others, Appellants, Impleaded, etc.

   Judgment affirmed, with costs, upon opinion by Justice Ingalls at Special Term.


text:
    William H. McKinney and others, Appellants, v. Dennis Collins, Respondent.
   Judgment affirmed, with costs. Opinion by

Boardman, J.;

Learned, P. J., not acting.


author: Boches, J.

text:
    Henry S. Jarvis, Respondent, v. Hugh J. Jewett, as Receiver of the Erie Railway Company, Appellant.
   Order affirmed, with costs. Mem. by

Boches, J.


text:
    The People of the State of New York ex rel. Neil Gilmour, Superintendent of Public Instruction, Respondent, v. Frederick Hyde and others, Appellants.

   Order affirmed, with costs, upon opinion of Justice Martin at Special Term.


author: Blokes, J.

text:
    The People of the State of New York ex rel. William H. Chapman, Respondent, v. Henry P. Marion and others,
      Assessors, etc., Appellants.

   Action affirmed, without costs. Opinion by

Blokes, J.


text:
    In the Matter of the Attorney-General v. The Continental Life Insurance Company.
   Two appeals. Order affirmed, with ten dollars costs and printing disbursements in each case. Opinion by

Boardman, J.


text:
    Catharine Kane, Respondent, v. Ansel K. Prentice and Catherine Prentice, Appellants.
   Re-argument ordered.


text:
    Howkin Beardslee, Appellant, v. Edwin R. Lawrence, Respondent.

   Four cases. Orders affirmed, with ten dollars costs and printing disbursements, on opinion of Justice Osborn at Special Term.

Boardman, J., dissents.


text:
    Samuel S. Bliss, Respondent, v. Royal L. Johnson and Abner Johnson, as Administrators, etc., Appellants.

   Judgment and order affirmed, with costs, upon opinion at Special Term.


text:
    Eliza Pierce, Appellant, v. Helen A. Long, Respondent.
   Judgment reversed and new trial ordered, costs to abide event Opinion by

Boardman, J.


text:
    Edmund C. Alger, by his Guardian, Appellant, v. Joseph C. Alger, Respondent

   Judgment affirmed, with costs. Opinion by

Bockes, J.


text:
    Elijah B. Smith, Appellant, v. Frederick C. Lowman, Respondent, Impleaded, etc.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.


text:
    Henry C. Spaulding, Appellant, v. Marcus M. Knowles and John H. Redeker, Respondents.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Ira Lawrence, Appellant, v. Jervis Lawrence, Respondent.

   Judgment affirmed, with costs.


text:
    Gilbert C. Place, Respondent, v. Henry B. Caverly and George W. Young, Appellants.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Casper J. Hallenbeck, Respondent, v. John P. Collier, Appellant.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Job G. Viall and William Johnson, Respondents, v. Elizabeth Dater, Appellant, Impleaded, etc.

   Judgment reversed and new. trial granted, reference discharged, costs to abide event. Opinion by

Learned, P. J.


text:
    David Bailey, Respondent, v. Myron Ennis, Appellant.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Ornan Stimpson, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    John Boody, Appellant, v. Jordan Rexford, Respondent.

   Judgment reversed, and new trial ordered, costs to avide event. Opinion by

Learned, P. J.


text:
    Asaph H. Carpenter, Appellant, v. Wilbur Butler, Respondent.

   Judgment of County Court affirmed, with costs. Opinion by

Learned, P. J.


text:
    In the Matter of the Application of the New York, Lake Erie and Western Railroad Company, for the Appointment of Commissioners to Examine the Proposed Route of the New York, Lackawanna and Western Railway Company in the County of Chemung.
   —Order denying appointment of commissioners affirmed, with costs. Mem. by

Boardman, J.


text:
    In the Matter of the Fidelity and Casualty Insurance Company of New York.
   Application denied.


text:
    Feeney v. Pier.
   Motion denied.


text:
    Eckler v. Eckler.
   -Motion denied, without costs and without prejudice.


text:
    In the Matter of Spring Hollow Highway.
   Motion granted. See order oil hie.


text:
    The People of the State of New York ex rel. Henry C. Adams, Appellant, v. Zerah S. Westbrook, Surrogate, etc., and others, Respondents.

   Order affirmed, with ten dollars costs.

Bockes, J., not acting.


text:
    Calvin Surdam and others, Commissioners, etc., Appellants, v. Solomon Fuller, as Commissioner, etc., Respondent. Same v. David English, as Commissioner, etc., Respondent.

   Orders affirmed, with ten dollars costs in one case, and printing disbursements in both.


text:
    Henry Y. Attrell v. The Rockaway Beach Improvement Company (Limited) and others.
   Order of Justice Learned affirmed, with ten dollars costs and printing disbursements.


text:
    John Consalus, as Executor, Catharine Consalus, as Executrix, etc., Appellants, v. John Brotherson, Respondent, Impleaded with Charles Adams, Appellant.

   Judgment against plaintiff, with costi^.


text:
    Charles A. Langdon, Appellant, v. James C. Rogers, as Administrator, etc.

   Judgment affirmed, with costs.


text:
    The People of the State of New York ex rel. James O. Buck and others, Plaintiffs in Error, v. Robert S. Coleman, Justice of the Peace, etc., Defendant in Error.
   Certiorari quashed with ten dollars costs and printing disbursements. Mem. by

Bockes, J.


text:
    The People of the State of New York ex rel. Richardson H. Thurman, Respondent, v. James Ryan, Jr., and others, Appellants.

   Order affirmed on opinion of Justice Westbrook, with costs.


text:
    Catharine A. Jewell, Administratrix, etc., Appellant, v. Delos W. Cameron, Executor, etc., Respondent.

   Judgment affirmed,, with costs.


text:
    William L. Storke, Appellant, v. A. Fayette Tracey and Ellen S. Tracey, Executors, etc., Respondents.

   Judgment affirmed, with costs.


text:
    Samuel Bonnell, Jr., Respondent, v. Chester Griswold, Appellant, Impleaded, etc. Eli W. Blake, Respondent, v. The Same.
   Judgments affirmed, with costs.


text:
    Francis N. Fitch, Appellant, v. Ransom Montgomery.
   Judgment reversed, new trial granted, costs to abide event. Mem. by

Learned, P. J.


text:
    George H. Jockow, an infant, etc., Respondent, v. Sarah M. Gould, Appellant.

   Judgment affirmed, with costs. Mem. by

Bockes, J.


text:
    Alice Carthy, Administratrix, etc., Respondent, v. The Village of West Troy, Appellant.

   Judgment reversed; new trial granted; reference discharged; costs to abide event. Mem. by

Learned, P. J.


text:
    Stephen O. Folant, Respondent, v. Charles M. Preston, Appellant

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Emma Kay, Appellant, v. Sarah N. Churchill and others, Respondents.
   Order affirmed, with ten dollars costs and printing disbursements. Mem. by

Bockes, J.


text:
    Winifred Nolan, Respondent, v. John Skelly and others, Appellants.

   Order affirmed, with ten dollars costs and printing disbursements. Mem. by

Boardman, J.


text:
    The Madison University, Respondent, v. John L. White and others, Appellants.

   Order denying new trial on newly discovered evidence. Judgment affirmed, with costs.


text:
    Eugene Salsbury, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.

   Conviction affirmed.


text:
    James Robertson, Respondent, v. Edward S. Bink, Appellant.
   Judgment reversed and new trial granted, costs to abide event. Opinion by

Boardman, J.


text:
    William Gleason, Supervisor, etc., Respondent, v. William Youmans, Appellant
   Judgment affirmed, with costs. Mem. by

Boardman, J.;

Learned, P. J., not acting.


author: Barnard, P. J.:

text:
    JACOB CARPENTER, Appellant, v. THE MANHATTAN LIFE ASSURANCE COMPANY, Respondent

      Costs — after reversal on appeal and new trial ordered, costs to abide event — party successful on second trial, entitled to costs of first trial. ■

    Where a judgment in favor of the plaintiff, for so small an amount as to entitle the defendant to costs, is reversed on appeal, costs to abide the event, and a new trial is granted on which the plaintiff obtains a judgment sufficient to entitle him to costs, he is entitled to costs as well of the first trial as of the appeal and the new trial.
    Appeal from an order made at Special Term, affirming the action of the county clerk of Westchester county, in disallowing plaintiff costs and disbursements of a first trial.
    The action was brought to recover damages for the conversion of personal property and was twice tried. Upon the first trial the plaintiff had a verdict for the sum of ten dollars. A motion was made for a new trial on the minutes and denied, and a judgment was entered in favor of the defendant for costs. The plaintiff thereupon appealed to the General Term from the judgment, and also from the order denying a new trial, and the General Term reversed the judgment and order and granted a new trial, with costs to abide the event.
    Upon the second trial at the Westchester Circuit the plaintiff had a verdict of $491.25 damages. The clerk disallowed the plaintiff’s costs and disbursements for the first trial, and upon appeal by plaintiff therefrom an order was made at Special Term affirming the action of the county clerk, and from such order this appeal is taken.

      M. M. Sillimcm and O. M. Close, for the appellant.

      Martin J. Keogh, for the respondent.
   Barnard, P. J.:

If the correct judgment had been reached upon the first trial the plaintiff would have been entitled io costs. An incorrect rule of damages having been laid down, he thereby failed to get a verdict for an amount sufficient to entitle him to costs. He was bound even to pay costs to his adversary. Upon appeal the judgment was reversed and a new trial granted to the plaintiff, costs to abide the event. This event was the result of the second trial. It was in favor of the plaintiff for an amount establishing plaintiff’s right to costs.

This includes all the costs of the action as well of the first trial as of the appeal and the new trial. The order should be reversed, with costs and disbursements, and the notice to retax costs denied, with costs.

Gilbert, J., concurred, Dykman, J., not sitting.

Order reversed, with costs and disbursements, and motion to retax costs granted.


text:
    PETER SUTTER and Others, as the Board of Commissioners of Excise of the Town of New Lots, ex rel. M. S. REEVE, Appellant, v. GEORGE FAUBLE, Respondent.

      Mccise law — Action for penally under, in whose name to he brought.

    Chapter 109 of 1878, conferring power upon boards of excise to sue for penalties for violations of the excise law, does not, in case they fail to prosecute for the penalty, enlarge the right given by chapter 820 of 1873, providing that “ any other person may prosecute therefor in the name of the overseers of the poor,” and authorize “any other person” to prosecute in the name of the board of excise.

      Appeal by M. S. Reeve, the relator in the above entitled action, from an order of the Kings County Special Term, setting aside the summons herein and dismissing the action.
    The action was commenced by the service of a summons, and, so far as appears by that paper, by the commissioners of excise, no relator’s name appearing therein. 1 It was brought to recover a penalty under chapter 628 of 1857, chapter 175 of 1870, and chapter 549 of 1873, and chapter 820 of 1873, relating to the sale of intoxicating liquor.

      Wm. II. Mundy, for the relator, appellant.

      Wm. J. Gaynor. for the respondent.
   Barnard, P. J.:

There is no legislative power enabling the relator Reeve to maintain this action in the name of the plaintiffs as commissioners of excise.

By the act of 1857 (chap. 628) certain penalties for unauthorized sales of strong and spirituous liquors and wines were to be sued for by the overseers of the poor of the town or city in which the penalty was incurred. (Sec. 22, as amended by chap. 820, Laws of 1873.) In case the parties, whose duty it was to prosecute for the penalties, failed to do so, then “ any other person may prosecute therefor in the name of the overseers of the poor ” of the town. (Sec. 30, as amended by chap. 820, Laws of 1873.) In 1878, the legislature again amended section 22 of chapter 628, Laws of 1857, by conferring the power upon boards of excise to sue for these penalties in their town when there was no overseer of the poor.

Section 30, as amended in 1873, was left unamended so that all persons who sued by reason of the neglect of “ parties or persons whose duty it is to prosecute,” would still be compelled to sue for the same in the name of the “ overseer of the poor ” of the town in which the alleged penalty was incurred. There is no overseer of the poor in New Lots, but that fact would not authorize courts to enlarge the power of a relator to sue in the name of the plaintiff beyond the plain words of the act.

No doubt it was the intention of the legislature to permit suits in the name of boards of excise when they neglected their duty, but no such intent is expressed, on the contrary a different plaintiff is named.

The order should be affirmed, with costs and disbursements.

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

Order affirmed, with costs and disbursements.


text:
    JOHN LEE, Appellant, v. MICHAEL DELEHANTY, FRANCIS DELEHANTY and BRIDGET DELEHANTY, Respondents.

      Judgment — assignment of, without notice to judgment debtor — rights of assignee as to payments made by the judgment debtor.

    A. recovered judgment against B. for $150 and assigned it for a valuable, consideration, and without notice to B., to his attorney 0., who took it in good faith. B. thereafter recovered judgment against A. and assigned it to his attorney D.
    D. obtained in supplementary proceedings on the judgment so assigned to him an order that B. pay to D., out of the $150 supposed by B. to be due to A., (but in fact due to A.’s assignee) fifty dollars on the judgment held by D. against A.

      Held, that the proceedings in which such order was made could not prejudice the rights of C. in the judgment assigned to him by A.
    That the payment made by B. under such order was not a payment to C. on the judgment assigned to him.
    That A., the assignor of C., was entitled to appeal from the order directing the payment of the fifty dollars to D.
    Appeal by the plaintiff above named from an order made at the Westchester County Special Term, on the 29th of January, 1881, denying a motion made by plaintiff’s attorney to vacate an order granted by Mr. Justice Dykman on the 5th day of May, 1880, ordering the defendant Bridget Delehanty to pay to William H. Sweny, alleged assignee of a judgment in favor of the said Bridget against the plaintiff, the sum of fifty dollars, by her admitted, on examination as a third party in supplementary proceedings, to be due from herself to the plaintiff.
    On the 27th day of April, 1880, the plaintiff recovered a judgment in the County Court of Westchester county against the defendant Bridget Delehanty for about $150, which he duly assigned for value to James Ferguson, his attorney, on the 1st of May, 1880.
    On the 5th day of May, 1880, said Bridget Delehanty recovered a judgment for sixty dollars and seven cents costs against the plaintiff, in another action pending between her and the plaintiff in the Supreme Court.
    On the same day she assigned this judgment to her attorney, William H. Sweny, Esq., who, on the same day, issued execution on said judgment, and on the same day applied for and obtained an order for the examination of said Bridget Delehanty as a third party indebted to the judgment debtor, which order was made returnable on the same day.
    On the same day the said Bridget appeared and was examined, pursuant to the order, and admitted that she was indebted to the plaintiff on the judgment recovered by him against her, as aforesaid, in upwards of fifty dollars, whereupon an order was made commanding her to pay said fifty dollars on the said judgment for costs recovered by herself against the plaintiff and assigned to her attorney as before stated, and that said sum be credited and applied to the satisfaction of the judgment.
    James Ferguson (the assignee of the County Court judgment against the defendant) moved to vacate this order for injustice and irregularities. The motion was denied, and from the order denying it the present appeal is taken.

      James Ferguson, for the appellant.

      Ellis & Swem/, for the respondent.
   Barnard, P. J.:

The papers clearly show an assignment of the judgment in favor of plaintiff and against Bridget Delehanty on the 1st of May, 1880. The judgment in favor of Francis and Bridget Delehanty against the plaintiff was not recovered until May 5, 1880.

The complete title to the assigned judgment passed to Ferguson without notice to the defendant therein. (Richardson v. Ainsworth, 20 How. Pr., 521; Muir v. Schenck, 3 Hill, 228.)

The proceedings against Bridget Delehanty to compel her to pay over moneys in her hands belonging to Lee could not prejudice the prior assignee in good faith. (Robinson v. Weeks, 6 How. Pr., 161.) She then held no property belonging to Lee, the plaintiff. She held property of Ferguson, the assignee. Her admission that she owed Lee could not affect Ferguson. He was not a party to the proceedings against Bridget Delehanty.

The payment under the order was not a payment to Ferguson, and the order directing that the sum paid, fifty dollars, be applied in ■ satisfaction of the judgment should be reversed, with costs and disbursements, and the order vacated, with ten dollars costs.

The plaintiff has the right to appeal. He is made liable to pay bach this sum to his assignee.

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

Order reversed, with costs and disbursements, and order vacated, with costs.


text:
    NARCISSUS E. CHAMBERLAIN, Appellant, v. THOMAS A. CHAMBERLAIN, Respondent.

      Costs in County Cou/rt, on appeal from Justice’s Cou/rt — when the appellant is entitled to.

    A plaintiff recovered a judgment in a Justice’s Court and the defendant appealed, stating in his notice of appeal, as the ground thereof, “ that the judgment should have been in favor of the defendant and against the plaintiff for costs.” No offer was made by the plaintiff, and upon the trial the judgment was reduced forty dollars.

      Beld, that the Code did not require the appellant to state in his notice of appeal the exact amount of the error in the judgment, and that he was entitled to recover his costs.
    Appeal by the plaintiff from an order made at the Kings county Special Term, denying the plaintiff’s motion to vacate and set aside the defendant’s bill of costs and disbursements as taxed.

      Edward Russell, for the appellant.

      Michael Furst, for the respondent.
   Barnard, P. J.:

Costs were properly taxed to the defendant whether the taxation was under the Code of Procedure or under the Code of Civil Procedure.

The plaintiff recovered a judgment against the defendant before a justice. The defendant appealed, and in his notice of appeal he stated the ground thereof to be that “ the judgment should have been in favor of the defendant and against the plaintiff for costs.” In other words he denied all indebtedness and claimed that the judgment should have been in his favor for costs, and was entirely erroneous.

There was no offer made, and upon the trial the judgment was reduced about forty dollars.

The Code of Procedure did not require that the appellant should state the exact amount of the error in the judgment. He was to specify an. amount,, and then the respondent was at liberty to make his offer.

In this case the appellant claimed the judgment to be entirely wrong. It would be a hard construction to hold that the Code designed in such a case to put an appellant in a worse condition than if the judgment was only claimed to be less erroneous.

The order should be affirmed, with costs and disbursements.

Gilbert and Dykman, JJ., concurred.

Order affirmed, with.costs and disbursements.


author: ■Gilbert, J.:

text:
    FRANCIS GOLDSMITH, Plaintiff, v. GEORGE H. SWIFT, etc., and Others, Defendants.

      Additional issue of stoeh — when principal — when income.

    Where shares of stock are issued to one holding oertain corporate stock as trustee for another, who is entitled to the income and dividends thereof only, and such additional shares are issued simply for the purpose of equalizing the value of the interests of the stockholders in two corporations about to be consolidated, such additional shares of stock constitute part of the corpus of the trust, and the trustee should hold them as part of the capital of the estate.
    Where, however, certificates of stock are issued to, and do, represent earnings or income of the corporation they should be treated by the trustee as a dividend, and be paid over by him to his cestui que trust. ■

    The right to'dividends accrues when they;are,‘declared, independent of when the earnings were made.
    Controversy submitted without action. The following is a statement of the case as agreed upon:
    I. On the 23d day of September, 1856, one Henry Swift, of the city of Poughkeepsie, with the intent to make a sure provision and advancement for his daughter, Frances Goldsmith, the plaintiff above named, executed and delivered to his son, Charles W. Swift, a certain deed of trust, in and by which he transferred and set over to his said son 100 shares of the capital stock of the “New York Central Railroad Company,” the said Charles W. to hold the same upon the following trusts, viz.: “ To pay to the said Henry Swift, as the said Charles may receive the same, all such dividends as may from time to time be declared and paid on said stock, for and during the natural life of the said Henry; and at and after his decease, to pay over to the said Frances, if she survive him, for her sole and separate use, as a feme sole, and upon her personal receipt, all dividends that may thereafter be declared and paid on said stock, during her natural life; and after the decease of the said Frances, and of the said Henry, then to transfer said stock to her descendants then living,” etc.
    II. That said Charles W. Swift accepted said trust, and acted as trustee down to the time of his death, as hereinafter stated. That subsequently, and on the 19th day of December, 1868, the board of directors of the said “New York Central Railroad Company” adopted a resolution in manner and words as follows :
    “ Whereas, This company has hitherto expended of its earnings, for the purpose of constructing and equipping its road, and in the purchase of real estate and other properties, with a view to the increase of its traffic, moneys equal in amount to eighty per cent of the capital stock of the company;

      “And whereas, The several stockholders of the company are entitled to evidence of such expenditure, and to reimbursement of the same, at some convenient future period, now, therefore,

      “Resolved, That a certificate, signed by the president and treasurer of this company, be issued to the stockholders, severally, declaring that such stockholder is entitled to eighty per cent of the amount of the capital stock held by him, payable ratably with the other certificates issued under this resolution, at the option of the company, and of its future earnings, with the dividends thereon, at the same rates and times as dividends shall be paid on the shares of the capital stock of the company; and that such certificates may be, at the option of the company, convertible into stock of the company, whenever the company shall be authorized to increase its capital stock, to an amount sufficient for such conversion.
    “ Resolved, That such certificates be delivered to the stockholders of the company, in the city of New York, and on the presentation of their several certificates of stock, and that the receipt of the certificate provided for in these resolutions shall be indorsed on the stock certificate.”
    III. That under and by virtue of said resolutions, the said “New York Central Railroad Company” issued and delivered to said Charles W. Swift certificates equal in amount to eighty per cent of the said 100 shares of stock held by him as trustee as aforesaid.
    IY. That subsequently, and by an agreement, bearing date the 15th day of' September, 1869, the said “New York Central Railroad Company ” was consolidated with the “ Hudson River Railroad Company.” That as a part of said consolidation, and for the purpose of equalizing the values of the two companies, it was agreed by and between them that “The New York Central and Hudson River Railroad Company ” (that being the corporate name of the newly formed consolidated company) should issue consolidated certifieates to an equal amount with, and in place of the said eighty per cent issue of certificates hereinbefore referred to, and should' also issue like consolidated certificates for twenty-seven per cent of the amount of the stock of the said “New York Central Railroad Company,” and that in addition each shareholder in the last named company should receive for his stock therein an equal amount in the new consolidated company.
    Y. That subsequently, and in conformity with the foregoing resolutions and agreement, regular certificates of stock in the “New York Central and Hudson-River Railroad Company” were issued to and received by said Charles W. Swift as trustee as aforesaid, said certificates being for 207 shares of said stock, and being in place of the 100 shares mentioned in said trust deed, and of the eighty per cent and twenty-seven per cent issues of certificates. And said Charles W. Swift, either as trustee or otherwise, paid out no money or other valuable consideration for the increase or alteration of said stock.
    YI. That said trustee paid over to said Henry Swift, from and after the execution of said trust deed, and down to his, said Henry Swift’s, death, in 1866, all dividends received on said hundred shares of Central Railroad stock.
    That from and after the death of said Henry Swift, and down to the death of said trustee, which occurred on November 19, 1877, the said Charles W. Swift paid over to said Frances Goldsmith all dividends declared on said original 100 shares of stock, and subsequently on said 207 shares of consolidated stock.
    YII. That on the 18th day of Januai-y, 1878, the defendant herein, George H. Swift, was, by an order of the Supreme Court, duly appointed as a trustee under said trust deed in the place and stead of Charles W. Swift, deceased. That he accepted said trust and took and received, and now holds, said 207 shares of stock, and that he has paid over to said Frances Goldsmith the dividends declared-thereon down to the 15th day of January, 1881.
    YIII. That said Frances Goldsmith has two children, who, in the event of her death, will be entitled to said trust fund, to wit, the defendants herein, Rebecca S. Beaman and Mary M. Patterson, both of whom are of full age.
    Hpon the foregoing statement of facts the parties pray the judgment of this court as to whether Frances Goldsmith is entitled to have and receive at once, as dividends or otherwise, the whole or any part of the 107 shares of stock held by said trustee as aforesaid, over and above said original number of 100 shares, or whether the said trustee should hold and retain as such the said 207 shares of stock, paying said Frances Goldsmith, during her lifetime the dividends ■declared thereon, and after her death distributing said stock as provided in said trust deed.

      Thompson (& Weeks, for the plaintiff. -

      G. II. Swift, for the defendants.
   ■Gilbert, J.:

The duty of the trustee to retain twenty-seven additional shares of ,sto.ck,-and,to -hold tho-sanm-as part of, the ...corpus of. the trust seems to us quite plain. Those shares do not in any sense represent earnings or income, but they are simply an accretion to the ■original stock, wdiich was made in the process of consolidating the two corporations, for the purpose of equalizing the value of the interests of the stockholders therein respectively. No dividend was intended, or was in fact made, by the issue of those shares. 'On the contrary, 100 shares of the stock of the old corporation, held by the trustee, were worth 127 shares of the stock of the new corporation. When issued, they represented capital, and not earnings or profits, or anything which could be the subject of a dividend.

With respect to eighty shares of the stock held by the trustee, the case is different. Those shares were issued in payment or in lieu of antecedent certificates, and -the- latter represented the earnings of one of the old corporations, which had accrued before the certificates were issued. Those certificates were redeemable either in money or stock, at the option of the corporation that issued them. No time for redemption was fixed, but they were transferable, and the holder of them was entitled, at the like option, to dividends thereon out of the future earnings, at the same rates and times as dividends should be paid on capital stock. Such certificates are, in ordinary parlance, called scrip, and the distribution of them among stockholders, is usually called a scrip dividend. It is true that the property of the corporation remained intact notwithstanding the issuing of the certificates. No money was distributed, nor was the property which had been acquired by an expenditure of the past earnings of the corporation in any manner converted. All. that the corporation possessed before the certificates were issued it retained as its own property afterwards. Nor did the certificates create any absolute indebtedness against the corporation. (People ex rel. Williamsburgh Gas Co. v. Assessors, 76 N. Y., 202.) Still, the-agreement to apply future earnings or stock to the redemption of the certificates, though optional on the part of the corporation, was of some value to the holder, and when the certificates were converted into stock the holder derived the same benefit from them,, that he would have received if they had imported an absolute-obligation to that effect. We think, therefore, that such certificates should be treated by the trustee as a dividend within the meaning of the trust (Bailey v. Railroad, 22 Wall., 604), and, of course, that the stock with which they were redeemed is of the same-character. Such seems to be the rule, so far as one has been established in this State. (Clarkson v. Clarkson, 18 Barb., 646;. Simpson v. Moore, 30 id., 637; Woodruff Estate, 1 Tuck., 58 ;. Brundage v. Brundage, 60 N. Y., 544.) The question generally is fully discussed in Perry on Trusts, section 545 and note.

It is hardly necessary to add that the right to dividends accrues when they are declared, no matter when the earnings were made. (22 Wall., supra.)

There must be judgment for the plaintiff in accordance with this-opinion.

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

Judgment for plaintiff on submitted case, with costs.


author: Gilbert, J.:

text:
    MARY DEVLIN, as Administratrix, etc., of HUGH DEVLIN, Respondent, v. JOSIAH T. SMITH, Impleaded, etc., Appellant.

      Liability of employer—where he intrusts entirely, to a skillful person, the section of a scaffolding.

    ■Where an employer, not having the requisite skill to do the work himself, intrusts the erection of a scaffolding entirely to a competent and skillful contractor, the employer is not liable for injuries resulting to his own employes from using such scaffolding.
    Nor is it negligence in such employer not to inspect the scaffold, before allowing his employes to use it.
    Appeal by the defendant Josiab T. Smith from a judgment against him, entered on the verdict of a jury at the Kings County ■Circuit against said Josiah T. Smith and one John Stevenson (to which latter a new trial was granted), and also from an order denying a motion for a new trial as to the defendant Smith.
    This action was brought for the purpose of recovering damages for the benefit of the next of kin of plaintiff’s intestate.
    The defendant, Josiah T. Smith, agreed with the “board of ■supervisors of Kings county to paint, fresco, and repair the inside of the county court house, and to do this work he employed the defendant, Stephenson, a scaffold builder, to build a scaffold about eighty-five feet high, and forty-five feet wide, Stephenson furnishing the labor and materials therefor. After the scaffold was built, by direction of the defendant, Josiah T. Smith, Hugh Devlin, the deceased, and other workmen in the employ of said Smith, went upon the top of the scaffold to paint the interior of the dome of the court house, and- while at work there the scaffold broke, and Hugh Devlin was killed. He left surviving a widow and four children.

      B. F. Tracy, for the appellant.

      Morris c& Pearsall, for the respondent.
   Gilbert, J.:

Assuming that the cause of the accident in this case was the defective construction of the scaffold, yet for such defect the defendant Smith was not responsible. Smith had agreed to paint and fresco the inside of the dome of the court house. To do this work the scaffold referred to became necessary. Smith being a fresco painter and paper hanger, and not a scaffold builder, employed Stephenson to build the' scaffold for him. No negligence has been, or can be, imputed to Smith by reason of his employment of Stephenson to build the scaffold, for the evidence showing that Stephenson was a skillful and competent scaffold builder is undisputed. Stephenson was not a servant or agent of Smith, but was an independent contractor. Smith exercised no control or direction in respect to Stephenson’s work. The case is brought, therefore, directly within the principle often decided, which limits the liability of masters for injuries to their servants to their own personal acts or omissions of duty, orto the acts or omissions of persons who, for the time being, occupy their position or act in their stead, unless the work which the contractor is employed to do be in itself dangerous or unlawful. (Blake v. Ferris, 5 N. Y., 48 ; Town v. Loveless, 72 id., 211; Storrs v. Utica, 17 id., 104.) This principle is one founded in public policy as tending to induce proper care on the part of servants, and of protecting employers against undue and indefinite responsibility.

The general rule is that the servant takes the risk incident to his employment. It is very true that ordinarily the risk arising from dangerous or defective tools or machinery is not such a risk, but the master is bound to furnish for his servants machinery and appliances of all kinds which are reasonably safe. Still, he is not a war-ranter of the absolute safety thereof. While the law implies a contract or duty on the part of the employer to use reasonable care and diligence in supplying structures and appliances of all kinds that are safe, and in keeping them in a safe condition, yet it does not comprehend an indemnity of his employe against the negligence of any one but himself, or one who for the time being is charged by him with the jierformance of his duties. The law also implies a contract on the part of the employe that he will assume the ordinary risks which are incident to the business in which he is employed. One of these risks is, that structures or appliances may turn out to be defective notwithstanding the exercise of due care by the employer to provide such as are safe and proper for the purpose for which they are designed. In this State the rule stated is well settled. Whenever the employer has been held liable, not for his own negligence but for the negligence of another person, it was upon the ground that the latter was charged with his duties. {Ryan v. Fowler, 24 N. Y., 410; Wright v. N. Y. C. R. Co., 25 id., 566 ; Laning v. N. Y. C. R. Co., 49 id., 521, 534; Flike v. B. and A. R. Co., 53 id., 549; Malone v. Hathaway, 64 id., 5; Fuller v. Jewett, 80 id., 46 ; Kain v. Smith, id., 458; Crispin v. Babbitt, 81 id., 516.) That is not the case where the employer, not having the requisite skill to do the work himself, intrusts the performance of it entirely to a competent and unexceptionable contractor. The employer cannot escape the responsibility of exercising due care by delegating that duty to an agent, but he can employ a competent and unexceptionable contractor to construct tools, machinery, etc., and such conduct would be the exercise of that care which the law requires. The employment of a contractor is not a delegation of the employer’s duty. It is, when properly done, an exercise of the care, and a fulfillment of the duty which the law exacts. It would be unreasonable and unjust to hold aiu employer liable for the negligence of such a contractor so employed, for the employment of him would not be negligence, and the contractor’s negligence could not be attributed to the employer, because no relation of agency would exist between them. Unless, therefore, the employer knew of the defect which caused the injury, or his ignorance thereof of itself indicated a breach of duty on his part, thei’e would be nothing of which negligence could be predicated. (Cases, supra, Priestley v. Fowler, 3 M. & W., 1.)

The evidence shows that Smith had no knowledge of the defect in the scaffold. Neither the fact that it was defective nor the nature of the defect affords any ground for the conclusion that an inspection of the scaffold by Smith would have revealed a defect in the fastenings thereof. He was not a scaffold builder, nor was any attempt made to show that he had the requisite skill to enable him to determine whether the support which gave way was properly fastened or not. Experts who testified upon the trial differed upon the latter point. Smith having used due care in procuring the scaffold, and having no knowledge nor any reason to apprehend that it was in any respect defective, he was justified in subjecting it to immediate use without inspection. It is true an inspection might have disclosed the fact that the support which gave way was fastened with nails instead of ropes. But no reason has been shown why that fact should have admonished Smith that the scaffold was unsafe. Not being an expert, his inspection must have been merely that of a common observer. If the defect in the scaffold would have been apparent to him, the deceased was equally bound to take notice of it; one was as competent to determine whether the fastenings referred to were sufficient or not, as the other.

The court, therefore, erred in submitting to the jury the question whether Smith’s omission to inspect the scaffold was negligence, and whether he used due care in employing Stevenson. There was no evidence to warrant the imputation of negligence on either ground. (Baulec, Admr., v. The N. Y. and Harlem R. Co., 59 N. Y., 356; Chapman v. Erie R. Co., 55 id., 579.) The jury had no guide to direct them in determining either question, and as the action was tried against both Stevenson and Smith it is not difficult to perceive that the jury probably transferred the fault (if any) from Stevenson to Smith.

~We are of opinion that the evidence is quite insufficient to prove any negligence on the part of Smith, and for that reason the motion for a nonsuit should have been granted.

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

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

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


author: Gilbert, J. :

text:
    WILLIAM CUNNINGHAM, Respondent, v. THE BAY STATE SHOE AND LEATHER COMPANY, Appellant.

      Convict labor — relation of master and servant does not exist between the contractor and the convict.

    The relation of master and servant does not exist between a convict and one who enters into a contract with the county for his services.
    The party thus entering into a contract for convict labor is not liable for injuries resulting to a third person from the negligence of the convict in the course of his employment.
    Appeal from a judgment in favor of the plaintiff in an action brought to recover damages, sustained through the alleged neglect of a convict in the Kings County Penitentiary in leaving open an elevator hole into which plaintiff fell, and from an order denying a motion for a new trial, made on the minutes of the court.
    The convict was engaged in work for the defendant under a contract between the county of Kings and the defendant, containing the following, among other provisions:
    The said party of the first part doth let out, and by these presents has let and farmed out to the said party of the second part, the labor and services of 400 male convicts and fifty female convicts confined or imprisoned in the Kings County Penitentiary.
    The said convicts are to be employed at the business of making boots and shoes or other articles of merchandise connected with the business of the said party of the second part.
    The party of the first part hereby covenants and agrees to fur- • nish, free of charge, suitable and convenient shop rooms in which to employ said convicts, and heat the same when necessary; also to furnish, free of charge, one convict for each eighteen men as shop waiter; also to furnish, without charge to the said party of the second part, an assistant keeper for each shop room whose duty it shall be to preserve order, enforce discipline and see that the convicts do a fair and reasonable day’s work, and to keep a time book thereof. No charge is to be made for time lost by reason of sickness, punishment or any other cause which shall not result from the fault or omission of said party of the second part.

      It is further agreed and understood, by and between the parties hereto, that the said party of the second part .shall be privileged to have, at their own charge and expense, a suitable number of men in the shops to oversee the work and instruct the convicts therein; said instructors to be subject to the approval of the keeper of the penitentiary.
    The said party of the second part hereby covenants and agrees to and with the said party of the first part to hire, and by these presents doth hire, the labor and 'services of the 400 male and fifty female convicts, be the same more or less in number, in accordance with all the provisions, stipulations, forms and conditions herein mentioned; and further agrees to furnish all the tools, machinery and stock necessary to keep said convicts herein named fully and constantly employed.
    It is also agreed that nothing herein contained shall be construed to abridge the rights of the keeper of said penitentiary to carry out the rules of discipline and enforce the regulations and laws of the prison.
    It is also mutually understood and agreed that a complete and efficient system of discipline shall be enforced and maintained in the shops during working hours.

      J3. F. Tracy, for the appellant.

      Morris <& Pearsall, for the respondent.,
   Gilbert, J. :

Without considering whether the plaintiff had a right to be where he was when the accident happened, or whether the defendant owed him the duty of protecting him against falling into the pit of the elevator, we are of opinion that the convict, through whose negligence in leaving the elevator hole open and unguarded it is averred the accident to the plaintiff happened, was not the servant of the defendant and that the defendant is not liable for the convict’s negligence. The convict was undergoing a sentence upon a criminal conviction in the Kings county penitentiary, and was performing labor for the defendant by virtue of a contract made between the defendant and the county of Kings, by which the county let and farmed out to tbe defendant tbe labor and services of four hundred male convicts and fifty female convicts, confined or imprisoned in the said penitentiary, for a price per day specified in the contract for the labor of each convict. Personal control of the convicts by the keeper of the penitentiary was preserved by the contract. Indeed such control could not be lawfully transferred or delegated to any person. The statute which authorized the making of the contract conferred no such power. Clearly the relation of master and servant between the defendant and the convict could not arise out of such a contract.

While it is not necessary to constitute that relation that there should be a formal hiring by the defendant of the convict, yet such relation cannot exist unless the person who performs the service is subject to the control and direction of the person for whom the service is performed. In the instance before us such is not the case. On the contrary, the county of Kings, acting under legislative authority, made the contract referred to for the two-fold object of enforcing the salutary discipline of the convicts, and obtaining recompense for their maintenance. The defendant merely assisted the public authorities in the accomplishment of those objects. It became entitled to the use of the building in which the convicts worked, and to their labor only by virtue of that contract. That building was a part of the penitentiary. The defendant neither employed or selected the convict, nor had it power to enforce obedience from him or to discharge him.

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

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

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


text:
    ANDREW L. BUSH and WILLIAM B. HALSTED, Executors and Trustees, etc., of NEWBERRY D. HALSTED, Deceased, Respondents, v. ELIZA JANE BABBITT, Appellant.

      Married woman — liability of, for rent of premises leased by Ties-.

    The defendant, a married woman, leased of the plaintiff at a stipulated rent, and occupied under such lease, certain premises in Eye for one year. In an action brought to recover a balance of such rent unpaid, the defendant set up her coverture as a defense:

      Reid, that the defendant was authorized by chapter 90 of the Laws of 1860, as amended by chapter 172 of the Laws of 1862, to malte such a contract of lease, and that the plaintiff was entitled to judgment for the balance of the rent unpaid.
    Appeal from a judgment in favor of tlie plaintiffs in an action tried before the court without a jury. The action was brought to recover a balance of rent alleged to be due from the defendant under a lease of certain premises in Rye, Westchester county, at the rent of $250 a year. The defendant answered alleging that she was a married women living with her husband at Rye.

      Peter Van Antwerp, for the appellant.

      J. Adrianee Bush, for the respondents.
   Gilbert, J.:

The defendant, a married woman, leased certain premises in Rye for the term of one year from April, 1875, at the yearly rent of $250, and occupied the premises during the entire term. She now sets up her coverture as a defense to the plaintiff’s claim for a balance of the rent which accrued pursuant to the lease.

We have no doubt that she is liable. By chapter 90 of the Laws of 1860, as amended by chapter 172 of the Laws of 1862, the powers conferred upon married women, and the obligations which they are authorized to incur, have been enlarged. They may acquire property by purchase as well as by devise, bequest, gift or descent; and they may, while married, sue and be sued in all matters having relation to the same, in the same manner as if they were sole. A lease for one year is a contract for the possession of the demised premises during that term for a stipulated price called rent. The lessee is, in legal effect, a purchaser of the term. Clearly the legislature did ' not intend to confer the right to purchase, without imposing the correlative obligation of paying for the thing purchased. The authorities on the subject are decisive against the defendant. (Prevot v. Lawrence, 51 N. Y., 219; Frecking v. Rolland, 53 id., 422; Westervelt v. Ackley, 62 id., 505 ; Herrington v. Robertson, 71 id., 280; Cashman v. Henry, 15 id., 103, 115.) The case of Eustaphieve v. Ketchum (6 Hun, 621) is not conflicting because it was put upon the ground, that a lease to husband and wife jointly of a dwelling for their family was not a contract which had reference to the separate property of the wife, but that the wife became merely a surety for her husband.

The judgment must be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    SAMUEL B. HIGENBOTAM, Respondent, v. JAMES S. GREEN and JOSEPH B. MORTON, Appellants, Impleaded, etc.

      Bill of pwrticulwrs — as to alleged acts of insanity.

    In an action charging physicians with a conspiracy, causing the incarceration of the plaintiff in an insane asylum, they answered that from their professional examination and knowledge of the plaintiff’s health and mental condition, from frequent observation of plaintiff’s actions, conduct and habits, and from information as to the same, they believed him to be insane.

      Held, that it was an improper exercise of discretion for the court to order the defendants to furnish to the plaintiff a bill of particulars, specifying the time and place, when and where the actions of the plaintiff so referred to occurred, and what such actions were, when and where the observations referred to were made and^what was observed, and to preclude the defendants from giving evidence of any matter in the premises not specified in the bill of particulars.
    Appeal from an order made at tbe Kings County Special Term, by which it was ordered and adjudged that the defendants do, within twenty days, furnish to the plaintiff —
    I. A bill of the particulars of the “ plaintiff’s actions, conduct and habits,” upon which the opinions of the defendants James S. Green and Joseph B. Morton, respecting the sanity or mental condition of the plaintiff, mentioned or referred to in the eighth paragraph of the answer of the said defendants Green and Morton, as having been observed by them respectively, were respectively based, formed or founded.
    II. It is further ordered that said bills of particulars respectively specify the time and place when and where the acts or actions of the plaintiff so referred to in the respective answers of Green and Morton occurred.
    That said bills of particulars also respectively specify what such acts or actions were, and when and where the observations referred to in said answers of Green and Morton, respectively, were made, and what was observed.
    III. It is further ordered that on the trial of this action the defendants Green and Morton be precluded from giving evidence of any matter respecting the plaintiff’s actions, conduct or 'habits, beyond that which they may specify in the bill or bills of particulars above ordered.

      Wm. Henry Arnoux and Robert S. Green, for the appellants.

      8. B. Iligenbotam, for the respondent.
   Dykman, J.:

This action is for conspiracy and false imprisonment, in causing the incarceration of the plaintiff in a mad-house in the State of New Jersey.

The defendants set up in their answer, among other defenses, that application in pursuance of law was made to one of the judges of the State of New Jersey by the wife of the plaintiff alleging his insanity, and that the judge thereupon called on the defendants, who are physicians, as witnesses in the investigation of such alleged insanity. That in obedience to such summons, as required by law, they attended before the judge as witnesses and were examined by him respecting the mental condition of the plaintiff and gave certificates that in their opinion the plaintiff was then an insane man. They then aver that such was their opinion as physicians, and that such opinion was formed from their personal acquaintance with the plaintiff, from their professional examination and knowledge of the plaintiff’s health and mental condition, from frequent observation of plaintiff’s actions, conduct and habits, and from information as to such actions, conduct and habits from members of plaintiff’s family and others, which they believe to be true.

On motion of the plaintiff an order was made at Special Term requiring the defendants to furnish to the plaintiff a' bill of particulars of the “ plaintiff’s actions, conduct and habits ” upon which the opinions of the defendants respecting the sanity or mental condition of the plaintiff mentioned in their answer were respectively based, formed or founded, and that such bills of particulars specify the time .and place, when and where, the actions of the plaintiff so referred to occurred, and that such bills of particulars also specify what such actions were, and when and where the observations referred to in the answers were made, and what was observed.

It was further ordered that on the trial the ■ defendants be precluded from giving evidence of any matter respecting the plaintiff’s “ actions, conduct or habits ” beyond that which they specified in the bill so ordered.

This last paragraph is sufficient for the condemnation of the whole order. By it they are required to furnish particulars of the “ actions, conduct and habits” upon which their opinions were based at the time they were given and precluded from giving evidence beyond that which they so specify. Conduct of the plaintiff there may have been theretofore, proving beyond doubt the visitation of insanity, but if it had not come then to the understanding of the defendants, under this order, they are deprived of its use and benefit on the trial. We, however, place our decision on broader ground.

The office of a bill of particulars is to amplify a pleading and indicate specifically the claim set up, while its effect is to restrict the proofs and limit the demand. It is neither given nor required for the purpose of disclosing to an adverse party the case relied upon, nor the proof to substantiate the same. Its entire scope and nature is to furnish information to an opponent, and to the court, of the specific proposition for which the party contends.

There is jurisdiction and power in the court to order such particulars, to be exercised in its discretion in a proper case. Usually the power is exerted in actions on contract involving accounts, but it may be used in all cases. It rests in discretion, however, and in this case its exercise was not in the line of wisdom.

The portion of the answer complained of fully apprises the plaintiff of the claim of the defendants in that behalf. They say that, in obedience to legal requirement, they attended before a lawful tribunal, in which the mental condition of the plaintiff was under judicial inquiry, and there gave their honest opinion that he was laboring under a visitation of insanity, and that such o}3inion was founded in part on personal observation of the actions, conduct and habits of the plaintiff. This apprises the plaintiff that the defendants rely upon these facts for their justification, and will make proof of them on the trial, and that is all he can require in a pleading. In this case it is all that is necessary. The plaintiff cannot be misled or surprised, as nothing is left uncertain or indefinite. To require more would be to ask for a disclosure of the proof intended to be adduced on the trial.

Nothing in the cases of Tilton v. Beecher (59 N. Y., 176) and Dwight v. Germania Insurance Co. (23 Alb. L. J., 354) is antagonistic to these views. The first case decided that there was power in the courts to order particulars in all cases. The last case was an action on a life policy of insurance, and the company, in the answer, set up that the deceased had bronchitis and spitting of blood, and the court ordered a bill of the particular times and places at which the deceased had these ailments. Certainly this order receives no approbation from these cases.

Here we have two physicians charged with conspiracy and perjury to confine the plaintiff in an asylum for the insane, which they deny. Then they set up in justification of their action that they are respectable physicians and gave their opinions upon evidence which produced honest conviction upon their minds that the plaintiff was insane, and they state the facts presented which were proof to them.

This is sufficient for a pleading, and the discretion of the court was improperly exercised in making the order appealed from.

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

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

Order reversed, with costs and disbursements, and motion denied, with costs.


text:
    CLEMENCE B. BLOOMFIELD, Plaintiff, v. STEPHEN A. KETCHAM, Defendant.

      Dedication of land as a street — power of executors, having a power of sale, to dedicate land to the public use by the description used in conveying adjoining land.

    Executors acting under a power of sale, but not holding the title to the land, conveyed two parcels thereof, describing one as “beginning at the southeasterly corner of Sixty-seventh street and the Third avenue, and running thence easterly along the southerly side of Sixty-seventh street;” and the other as “beginning at the north-easterly corner of Sixty-scventli street and the Third avenue, and running thence easterly along the northerly side of Sixty-seventh street.” On a map of the city of New York, made in 1811, a street, designated Sixty-seventh street, was laid down over the land in question; but such street was never opened or used, nor did any owner of the land consent to its being laid out..

      Held, that as it did not appear that the map was made by the owner of the land, and as the executors had no interest in the land but only a naked power over it, that the owners of the lots conveyed by the executors as aforesaid had no right or easement in the land referred to as Sixty-seventh street.
    Case agreed upon in a controversy submitted without action.
    Clemence B. Bloomfield claims to recover of Stephen A. Ketcham the sum of $1,000, and Stephen A. Ketcham resists the said claim.
    The following are the facts upon which the said controversy depends:
    Smith Bloomfield died on the lith day of May, 1865, being the owner in fee simple of the property in question which formed a part of a large tract of land owned by him at the time of his death. His title was perfect and at the time of his death there were no liens or incumbrances or servitudes upon the property, but said Smith Bloomfield was entitled to the absolute and exclusive ownership and possession thereof.
    Said Smith Bloomfield left a last will and testament, which wras duly admitted to probate as a will of real and personal estate, whereby he devised an equal fifteenth part or share of this property to the above-named Clemence B. Bloomfield.
    In said will the said Smith Bloomfield empowered his executors to sell his real estate.

      The words in which said power was given are -as follows:

      “ Eleventh. I do authorize and empower my executors hereinafter named, or such of them as may take upon themselves the burden of executing this my will, and the survivors and survivor of them, for the purpose of dividing my estate, or otherwise, to sell all or any part of real estate not hereinabove specifically devised at public or private sale, for cash or upon credit, and upon such sale to execute all deeds or conveyances necessary to carry such sale into effect, which sale so to be made shall be an effectual bar against any claim to the property so sold, by any person or persons claiming through or under me.”
    There is no other provision in the will in any way increasing or altering the power as conferred by the language set out above. On the 1st day of February, 1866, the executors of said will (having duly qualified) executed a conveyance in fee in the usual form used by executors, whereby they conveyed the property described therein. In describing said property in said deed said executors used the following words: “ Beginning at the north-easterly corner of Sixty-seventh street and the Third avenue, and running thence easterly along the northerly side of Sixty-seventh street.” Said property was also described as lying “between Sixty-seventh and .Sixty-eighth streets.” Said executors on the same day also executed a certain other conveyance in fee, in the usual form, of certain othef of said property, whereby they conveyed the property described therein. In describing such property in said deed the said executors used the following words: “ Beginning at the south-easterly corner of Sixty-seventh street and the Third avenue, and running thence easterly along the southerly side of Sixty-seventh street.” Said property was also described as lying “ between Sixty-sixth and Sixty-seventh streets.”
    There were no other references in said deeds to Sixty-seventh street. The lands conveyed by the above deeds front on the Third avenue, and there is ample access to them from said Third avenue.
    The property in question lies between the two pieces of property sold by said executors, as above set forth, and consists of a plot of land 100 feet deep by sixty feet in width, fronting on Third avenue, and on the map of the city of New York, made in the year 1811, a street is laid out in such a manner as to embrace the property in question. This street is called Sixty-seventh street on such map. Said Sixty-seventh street has never been opened as a street over the property in question, nor has said property ever been used as such. Nor have the owners of the fee, to wit, the devisees of Smith Bloomfield, or said Smith Bloomfield himself, ever consented or agreed that the said property should be used as a street.
    After the death of said Smith Bloomfield, and after the above conveyances by his executors, the said Clemence B. Bloomfield agreed with said Stephen A. Ketcham, in writing under her hand and seal by her duly authorized attorney, to sell and convey an equal fifteenth part or share of said property, covenanting to convey the same free and clear of all incumbrances, servitudes or easements, and to give a title as full, absolute and exclusive as said Smith Bloomfield had at the time of his death, and to execute a valid deed therefor. A valid deed of said property has been duly tendered by said Clemence B. Bloomfield to said Ketcham, but said Ketcham declines to comply with said agreement upon the ground that the executors by referring to Sixty-seventh street have dedicated the same as a street, and, therefore, the property in question, coming as it does within the lines of said street as laid down on said map, has been itself dedicated to the public use and is, therefore, burdened with a very grievous servitude, to wit, a public right of way. v.
    None of the admissions herein contained are in anywise to affect either party, or to be regarded as made except for the purpose of this submission of this controversy.
    The question submitted to the court upon this case is as follows:
    Did the executors of Smith Bloomfield by describing the property conveyed by them in the two deeds above mentioned, in the manner above set forth, dedicate the property in question as a street, or give to the purchasers named in said deeds any right to have the same maintained as a street, or give said purchasers any right to use the same as a street as against the owners of the fee, to wit, the devisees of said Smith Bloomfield.

      F. F. c& A. Blackwell, for the plaintiff.

      Oha/rles Benner, for the defendant.
   Dykman, J.:

This is a submission of a controversy upon admitted facts. The plaintiff claims to recover $1,000 from the defendant, for her interest in a lot of land in the city of New York, which he has agreed to purchase. The case states that the lot was owned by Smith Bloomfield in his life time, and that he died in the year 1865, leaving a last will and testament, which has been proved, by which he devised the equal fifteenth part of this lot to the plaintiff. The-executors had power of sale under the will, and in the execution of it, on the 1st day of February, 1866, they conveyed a lot of land by a description commencing as follows : “Beginning at the northeasterly corner of Sixty-seventh street and the Third avenue, and running thence easterly along the northerly side of Sixty-seventh street.” On the same day the executors conveyed another lot of land by a description commencing as follows : “ Beginning at the south-easterly corner of Sixty-seventh street and the Third avenue,, and running thence easterly along the southerly side of Sixty-seventh, street.” These lots both front on Third avenue, and the lot in question lies between them, and is 100 feet deep and sixty feet front on Third avenue. On a map of the city made in 1811, a. street is laid down over this lot called Sixty-seventh street, but it. never was opened; no owner of the land ever consented that there should.be a street there.

The defendant has agreed, by writing, to purchase the interest of the plaintiff in this lot, and she has tendered him an executed deed of conveyance therefor, which he refused to accept because the grantees, in the two conveyances above mentioned, have acquired the right to the use of Sixty-seventh street as an open way, and the question submitted is : Did the executors of Smith Bloomfield, by describing the property conveyed by them in the two deeds mentioned, in manner described, dedicate the property in question as a street or give to the purchasers any right to have the same maintained as a street, or give said purchasers any right to use the same as a street, as against the owners of the fee under the devise in the will of Smith Bloomfield ? It may be observed at the outset, that this lot did not pass as an appurtenant to the lots granted by the executors for the reason that it never was so used.

Where the owner of land lays it off in lots and plots and intersects it with streets and avenues, and makes conveyances of tbe lots in wbicli the streets and avenues are designated as boundaries, the use thereof, as between the parties to the grant, becomes an easement annexed to the estate granted, and the grantees acquire the right to have the same remain open for their use. (Taylor v. Hopper, 62 N. Y., 649.)

In this case several essential elements are wanting to bring it within this rule of law. Ve may assume, although it is not stated, that the map mentioned in the statement was not. made by an owner of this land, as it was a map of the city of New York, and there is, therefore, the entire absence of action by the owner' evincing any disposition to set apart this lot for a street.

In the next place the conveyances of the lots on the northerly and southerly sides of the lot in question, in which the street is named as a boundary, were not made by the owner or owners of this lot and their estates therein cannot be prejudiced or diminished thereby.

As we understand the statement, the executors took no interest in this land under the will, but merely a naked power, in trust, the title being all the while vested in the devisees under the will, of which the plaintiff is one.

It was competent for these devisees to convey this property and thus extinguish the power of the executors to convey the • same. (Prentice v. Janssen, 79 N. Y., 478.) But even though this was not done, it was beyond the scope of the executors’ power to create incidental rights or easements therein.

Our conclusion is that the ownership of the plaintiff to the undivided fifteenth part of this lot of land is complete and unimpaired, and that she should be permitted a recovery in this action.

Judgment for the plaintiff, with costs.

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

Judgment for plaintiff upon submitted case, with costs.


text:
    WILLIAM J. BEST, as Receiver, etc., of the National Trust Company of the City of New York, Respondent, v. DAVID J. BROWN, Appellant, Impleaded, etc.

      Deed containing covenant by the gramtee to pay a mortgage — delivery to, and acceptance by grantee, necessary.

    A deed was made, executed and recorded by A., tbe owner of the land described therein, to B., who, when advised of the fact, refused to accept the deed but at the request of the grantor executed a deed to him which purported to reconvey the title. The deed made and executed by A., contained a clause by the provisions of which B., the grantee, assumed payment of a mortgage on the land.

      Held, that B., by executing the deed of reconveyance to A., did not recognize the validity, or assume the obligation of the deed to himself.
    Appeal by the defendant David J. Brown from a judgment in favor of the plaintiff, by the provisions of which the defendant Brown is required to pay any deficiency that may exist on the sale of certain mortgaged premises.
    Winfield, Leeds (& Morse, for the appellant.
    ' Andrew Fallon, for the respondent.
   Dykman, J.:

This action is for the foreclosure of a mortgage executed by James C. Brown, and it is sought to hold the defendant David J. Brown, a brother of the mortgagor, personally liable for deficiency, as the grantee in a deed from his brother containing a clause by which the payment of this mortgage is assumed. The position of David J. Brown is, that this deed was not accepted by him and never was operative as such. The facts are these: After the execution of the mortgage in suit, J ames O. Brown, without the knowledge of his brother David J. Brown, executed to him a deed of conveyance of the premises, in which he was made to assume the payment of the mortgage.

When this was communicated by James to his brother David, he repudiated it at once, and refused to accept the deed orto have anything to do with it, and, at the request of his brother, executed a deed to him of the premises, which his brother caused to be prepared, in which the grantee was made to assume the payment of the mortgage. David never purchased the property and never agreed to do so, and never paid anything for it, or for either of the deeds. These facts are proved by both the brothers and are undisputed.

It will be thus seen that the instrument executed and recorded by James C. Brown to his brother never attained validity. A deed is a writing executed and delivered, and delivery is essential to give it legal force. Of old the definition of a deed was “ an instrument consisting of three things, viz.: Writing, sealing and delivery, comprehending a bargain or contract between party and party, man or woman.” (Co. Litt., 171.) Delivery includes a surrender and acceptance, and both are necessary to its completion. This must be the result of a contract, the meeting of two minds, the accord of two wills. The grantor must be willing and agree to deliver, and the grantee must be willing and consent to receive, and this accord of wills must be evinced in some way to show the unequivocal intention of both parties that the instrument shall take effect according to its purport and tenor. (Fisher v. Hall, 41 N. Y., 416; Brackett v. Barney, 28 N. Y., 333.)

In the March Term of the year 1875, there came before the General Term of this department a similar question, and Judge Gilbert, in giving the opinion of the court, said in relation to it: “All that was done was to insert his name in the deed as grantee and put it on record. These acts were done without his authority or assent, and when they were brought to his knowledge he promptly disavowed them. Whether there has been an acceptance of a deed by a grantee depends altogether upon his intention in respect to the matter. The recording of the deed by others, without his sanction, cannot have that effect. (Day v. Mooney, 6 Thomp. & Cook, 382.) This is the rule of the authorities and has full application to'this case.

As, therefore, there was no acceptance of the deed to David J. Brown, no title passed under it to him, and it never became operative for any purpose, certainly not to charge him with the payment of this mortgage. It would be a strange anomaly if one could be made personally liable for tbe payment of a mortgage by the execution and recording of a deed of conveyance to him, containing a clause by which he was made to assume the same, without his knowledge or consent.

In the case of Deyermand v. Chamberlin (22 Hun, 110), decided by us in September, 1880, the grantee consented to take the conveyance and hold the title, but, without his knowledge, in the preparation of the deed, he was made to assume the payment of a mortgage, and it was sought to hold him personally liable for deficiency kin that action. We there held that, as he had not agreed to assume or pay the mortgage, no liability was imposed on him by the insertion of the clause in the deed, and no judgment for a deficiency could be entered against him. That case was stronger for the plaintiff than this, because there the deed was valid and did pass the legal title. It is claimed, however, that the grantee in this deed recognized its validity by undertaking to reconvey the title to his brother, but, in our view, that act had no such effect. It did not infuse life where before there was none. It was well enough to prevent embarrassment in the future disposition of the property, but as no rights or. obligations passed to him under the deed to him, so none were imposed upon him by the reconveyance, and nothing passed from him thereby.

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

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

Part of judgment appealed from reversed, with costs.