author: Vah Brunt, P. J.

text:
    In the Matter of the Election of Directors of The Germicide Company.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    Corporations—Proxies—Laws 1892, chap. 687, § 20.
    A stockholder in a corporation cannot give a proxy coupled with an interest, nor make a proxy irrevocable.
    Appeal from an order denying application made by a stockholder to have the election of directors of a corporation set aside- and a new election ordered.

      A. L. Sanger, for app’lt; J. W. Boothby, for resp’ts.
   Vah Brunt, P. J.

One Cohn, being indebted to one Feuchtwanger, had pledged as collateral security for the payment of the indebtedness certain stock of the Germicide Company standing in his name, and delivered as additional security to one Isaacs an irrevocable proxy for voting upon said stock, said proxy to be used by said Isaacs or by his successors. Isaacs duly appointed one Sanger as his successor and substitute; and as such substitute, at the annual meeting of the company, said Sanger offered to vote upon the stock which had been pledged to Feuchtwanger, and which was standing in the books of the company in the name of said Cohn; and if his vote had been accepted the candidates for whiph Sanger offered to vote would have been elected at said election. Cohn undertook to revoke the power which had been executed by him to Isaacs. The inspectors thereupon refused the vote offered by Sanger, and accepted the vote offered by Cohn, Sanger protesting against its receipt. This motion was thereupon made to set aside the election, and the same having been denied, from the order thereupon entered this appeal is taken.

It is urged that the proxy given by Cohn to Isaacs was irrevocable, because such proxy was coupled with an interest and was given for a valuable consideration, and it is attempted to liken the proxy to a power of attorney, which, when coupled with an interest, is irrevocable. The difficulty, with the position of the appellant is that § 20 of chap. 687 of the Laws of 1892 (which was-an act in relation to corporations), expressly provides that no stockholder shall sell his vote or issue a proxy to vote upon any stock, or bond for any sum of money or anything of value. Therefore, the act has expressly prohibited parties from issuing a proxy-coupled with an interest.

But, if this was not a sufficient answer to the application, another provision of the same act provides that every proxy shall be revocable at the pleasure of the person executing it. It is the policy of the law that proxies shall not be made irrevocable, and. in order to voice that policy in the strongest and most unmistakable language the legislature have expressly provided that stockholders in corporations shall not issue a proxy coupled with an-interest, and further than that, that every proxy issued by a stockholder shall be revocable. Parties cannot, by agreement, repeal acts of the' legislature. It might just as well be said that the .usury laws could be repealed by parties entering into an agreement that seven per cent, should be paid upon a loan, and that ithe debtor would not plead usury.

The order should be affirmed, with ten dollars costs and disbursements.

O'Brien, J., concurs.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    James P. Foster, Resp’t., v. Morris Mayer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    Tender—Monet deposited in court belongs to dependant. °
    Moneys deposited in court in an action to cancel mortgages on the ground that the amount due had been tendered, in which action an injunction to restrain foreclosure has been granted on condition of such deposit, belongs to the defendant, and he has a right to receive the same.
    Appeal from an order denying motion to direct the chamberlain of the city of New York to pay to the defendant the amount deposited as a tender.

      Sol Kohn, for app’lt; E. Schenck, for resp’t.
   Van Brunt, P. J.

This action was brought for the cancellation of record of two mortgages upon premises purchased by the plaintiff, the plaintiff claiming that he had tendered the amount due upon the mortgages, and hence the liens created by said mortgages were discharged.

Shortly after the commencement of this action the defendant 'began an action in the court of common pleas for the foreclosure of these mortgages. The defense interposed was usury, and the cause having been set down for trial, the plaintiff herein applied in this action for an order to restrain the prosecution of the foreclosure suit until the determination of this action; which motion was granted, upon condition that the plaintiff should deposit with the clerk of the court the amount admitted by him to be due to the defendant upon the mortgages, with interest The plaintiff thereupon made such deposit, and the defendant subsequently moved for a direction that the chamberlain pay over to him the money so deposited. This motion being denied, this appeal was taken from the order thereupon entered.

The right of the defendant to receive this money at any time seems to be apparent, as it is a sum admitted to be due from the plaintiff to the defendant, and was not deposited to abide the event of the action. The object of the deposit was to place within the control of the defendant the amount admitted to be due, and was made in order that equitable relief might be granted. It seems to be needless to cite authorities to show that a deposit being made under such circumstances, if the defendant desires to avail himself of the deposit, he has a right to do so at any time. But the case of Nelson v. Loder, 132 N. Y. 291; 43 St. Rep., 946. expressly disposes of this question. The court sav: “If a debtor wishes to extinguish his liability for subsequently accruing interest, or demands some affirmative relief he cannot retain the money subject to his own use, but must devote it to the specific purpose of paying the debt, and put it within the power of the creditor to receive it at any time.”

In the case at bar, as has already been stated, the equitable relief demanded was the cancellation of the mortgages and an injunction restraining the prosecution of the foreclosure action.

It would ‘seem, therefore, beyond question that the defendant, was entitled to this money, admitted to be due upon the mortgages, and therefore admitted to belong to him, at any time he-chose to take it.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.

O’Brien, J., concurs.


author: Patterson, J.

text:
    Radcleffe Baldwin, Resp’t, v. The Sullivan Timber Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    1. Charter party—Demurrage.
    When the charterer of a vessel by the charter party undertakes not only to deliver a cargo alongside a vessel within a specified time, but also to lqad such vessel, no time for the loading being mentioned, the obligation exists to complete such loading within a reasonable time, and a legal claim for damages for delay in loading arises, although the charter party, which expressly provides for damages in the nature of demurrage for failure to deliver cargo, is silent as to damages for delay in loading.
    2. Same—Damages.
    In such a case the stipulated amount of damages in the charter party is prima facie evidence of loss occasioned by an unexcused delay of the. charterer, the ship not being in fault.
    3. Same.
    Concerning the defense that the signing and delivery of bills of lading set at rest all claims under the charter party, where there is evidence that defendant threatened to withhold clearing the ship unless the bills of lading were unconditionally signed, Held, that it was properly left to the jury to say whether the payment was under compulsion, and the bills of lading given under duress.
    Appeal from judgment in favor of plaintiff, entered on- verdiet, and from order denying motion for a new trial.

      L. Laflin Kellogg, for app’lt; William D. Guthrie, for resp’t.
   Patterson, J.

A critical examination of the whole record in this cause, presented on this appeal, satisfies us that the learned judge at circuit correctly interpreted the contract between the ship owners and the defendant, properly defined in his charge to-the jury the obligations of the former and the liability of the latter under the stipulations of the charter party and the rules of law applicable to the facts appearing on the trial, and that he committed no error in the reception or rejection of evidence such as would require a reversal of the judgment The plaintiff sued as the assignee of the Neptune Steam Navigation Company, a foreign corporation, and the owner of the steamship “Albano.” On the 6th of April, 1888, the agents of the owners and the defendant entered into a charter party agreement, by which the latter chartered the steamer named for a voyage from the port of Pensacola, Florida, to a port in the United Kingdom, -or other destination as might be ordered on signing bills of lading. Among other things, it was agreed that the ship should proceed to Pensa•cola, there load (always afloat) from the charterer a full and complete cargo of sown hoards or deals, the charterer to do the stowing of the cargo, supply dogs and chains, furnish cargo as fast as required for loading, and only such as could go through the ship’s hatches, pay water men, etc. The lay days were to commence the day after the vessel was ready to receive cargo in loading berth and written notice given of such readiness to charterer, -“and should" the cargo not be delivered to vessel at Pensacola within specified time, for each and every day over and above said lay days, charterers are to pay, day by day, the sum of eighteen pence sterling per net register ton demurrage-; any detention through quarantine not to count in lay days. ” The ship’s net register tonnage was 1522 tons. The charter party also contained the following provision:

“ The charterers’ responsibilty under this charter shall cease as soon as the cargo is shipped and bills of lading signed, provided the conditions called for in this charter have been fulfilled or provided for by bills of lading.' The ship proceeded to Pensacola and loaded, but, the plaintiff claims, was unnecessarily detained, and demands demurrage, or damages in the nature of demurrage, for such detention for six days, in consequence of alleged default in stowing or furnishing cargo as fast as required for loading, and claims also to recover the expense of towage incurred to enable the steamer to lie afloat, she having been directed by the defendant’s agent to a loading berth where she grounded and from which it was necessary to remove her, and also money expended for water and for dogs and chains which the ship was obliged to pay for.

The defendant denied in its answer the allegations of the complaint relating to the several items of the plaintiff’s claim, and set up the affirmative defenses that if any delay occurred in loading, it was the fault of the ship's master, or otherwise arose from causes beyond the control of the charterer, and that by the signing and delivery of the bills of lading after receiving cargo and an examination by the master of the defendant’s account, an adjustment .and settlement of all claims of the nature of those sued upon was had pursuant to the condition of the charter party above quoted. In opposition to the claim for demurrage, it is urged by the defendant that, under the express terms of the- charter party, no liability exists; that its provisions in that regard are limited to delays occasioned by failure to deliver cargo alongside ship, and nothing being said in the contract concerning delay in loading, all claim therefore is excluded; and a motion for a non-suit was made on that and the further ground that there was no proof either of -default in delivering as fast as possible to the vessel nor of damage for failure to load, the liability for the stipulated amount of -demurrage being confined to the specific contingency of neglect to deliver cargo to the vessel. This motion was properly disposed of. The obligation or duty of the defendant did not cease on merely bringing to the ship the material to be transported. The: ■charterer undertook and was bound to stow, that is, to load the-cargo, to put it in place on the vessel, and that being incumbent-on the defendant, and there being no time mentioned within which it was to be done, the obligation existed to complete the loading within a reasonable time. Failing that, the vessel being detained in consequence, the liability for damages in the nature of demurrage: accrued, nothwithstanding the silence of the charter party in respect thereto; for it would be absurd to assume that the charterer, because it was held liable in express words for delay in discharging one part of its duty, was to be exempt from all responsibility for detention caused by a wilful violation of another part of that, duty of equal importance.

The rule of law applicable to this case has been frequently announced. In the M. S. Bacon v. E. & W. Trans. Co., 3 Fed. Rep.r 344, the U. S. circuit court said: “An express stipulation for demurrage in a contract of affreightment is not necessary to entitle the owner of a vessel to compensation for her unnecessary or improper detention in loading or unloading. Reasonable promptitude in delivering a cargo at its point of shipment or in receiving it at its destination is a duty implied in such contracts, and for a violation of it damages in the nature of demurrage are recoverable. This is too well settled, both in England and in this country, to-need discussion or authority,” and in Scholl v. Albany Iron, etc., Co., 101 N. Y., 602, it is stated that the owner of the cargo is liable, for unreasonable delay in discharging, although the bill of lading contains no stipulation as to demurrage and prescribes no time within which the cargo shall be delivered, and further that it is “ a. question of fact to be determined upon all the circumstances," whether there was unreasonable delay on the part of the defendant in discharging the vessel." The learned judge in the court court below acted upon this view of the subject. There was no time mentioned in the charter party within which the loading was-to be done. The law, therefore, implied the obligation to do it, within a reasonable time, and it' was for the jury to say whether there had been unnecessary delay, and, if so, for how long a time.. It may be remarked at this point that these questions were left, to the jury under explicit and correct instructions, that the attention of the jury was called by the court to all the matters of fact-in controversy on this branch of the case, viz.: Whether there-was unreasonable delay of the shipper in loading, or whether the detention was caused by the stanchions of the vessel not being removed (which seems to have been the specification of the remissness or fault ascribed to the master), or by the defendant employing an insufficient number of' men to work at the four hatches, or whether there were stormy days during which it was impossible to load cargo.

The refusal to dismiss the complaint on another ground urged was also correct, and what is now said applies also to the contention of the defendant that the court erred in instructing the jury as to the measure of damages. It was insisted that it was necessary for the plaintiff to show actual damage and the amount of it. $To proof of that distinct character was offered. The court, in its charge, instructed the jury that if they found for the plaintiff on the main issue as to the delay, they must also find the number of days of detention, and that for each of the days so found, under the terms of the charter party, the demurrage was fixed at about $240 or $245. We are of opinion that the stipulated amount of damage was prima facie evidence of loss occasioned by any unexcused delay of the charterer, the ship not being in fault. The right to recover arises from the fact of detention, whereby the owners were prevented from performing service or using the vessel. If a stipulated sum is agreed upon for delay in one event, it is to be assumed that detention arising from another cause, for which the charterer is liable, would operate equally to the disadvantage and to the same amount of loss to the owner, and this view finds support in authority, Moorsom v. Bell, 2 Camp., 616; Sanguinetti v. Pacific S. N. Co., L. R., 2 Q. B. Div., 238; Harris v. Jacobs, L. R., 15 Q. B. Div., 247, and in the computation of time Sundays were properly included. Three Sundays intervened between the date of the notice of the ship’s readiness to receive cargo and the completion of the loading. The court refused to charge that such Sundays were to be deducted from the days for which demurrage might be allowed. This was not error, Lindsay v. Cusimano, 12 Fed. Rep., 503 ; The Oluf 19 id., 459, under the circumstances disclosed on the trial.

Concerning the defense, that the signing and delivery of the bills of lading set at rest all claims as provided by the charter party, proof was introduced by the plaintiff tending to show that such bills were given under coercion. The master testified, in effect, that the defendant’s agent threatened to withhold clearing the ship at the custom house unless the bills of lading were unconditionally signed; that he declared to the agent, in signing them, that he did so only because he was forced to, and would protest as to what had been done. Demands had been made on the part of the defendant for payment of certain sums claimed to be charges against the vessel. They were disputed by the master. Thereupon followed the refusal to clear unless the claims were admitted and paid and clean bills of lading signed. It was left to the jury to say whether the payment was under compulsion and the bills of lading given under duress. The judge was right in .submitting it to the jury and in his instructions to them on the subject. As the charges were improperly made—they are included in the items for which the plaintiff sued and for which he had a verdict—the refusal was equivalent to constraint.

The defendant had the exclusive power to get clearance for the vessel, § 4200, U. S. R. S., and the refusal to exercise it unless these disputed items were paid amounted to duress, as was held in McPherson v. Cox, 86 N. Y., 472.

We have examined the exceptions to rulings on evidence, but do not find any requiring special consideration. The questions relating to the custom of the port of Pensacola were directed to the number of men employed in loading vessels “ of the class of the Albano.” The questions were entirely too vague, and answers. to them would not have aided the defendant’s case. But the testimony of the defendant’s witnesses was to the effect that sufficient men were actually engaged; that from fifteen to fifty-seven were at work, as the weather permitted, and, except at occasional times, four gangs were occupied, and that they could not always-work advantageously because of the adverse currents and bad weather. All this was laid before the jury and they discredited it. The exceptions as to, the dealings'of Sullivan with the master were not well taken. Sullivan acted for the company with, and in the presence of Wheeler, the president, and he wras thus held out to the master as authorized to act. He presented the bills off lading for signature, and some of the receipts for lumber are made-out in his name as the person delivering it to the ship, as appears-by receipts signed by Kelley, the mate.

We find nothing to criticise in the rulings of the court, or its-instructions to the jury respecting the other items for which a recovery was had. The jury found that the payments for dogs and chains, and for towage, were, in effect, extorted, and there was testimony to support the finding. It was clearly the duty of the charterer to pay the water man. It was so stipulated in the charter party. The amount paid for taking back from the vessel the-excess of lumber at the ship’s side over what could be loaded, was a disbursement chargeable against the defendant, for no more was to be sent than could be taken aboard. The judgment and order denying the motion for a new trial are affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Lewis, J.

text:
    Albert C. Smith, Pl’ff, v. Charles E. Mott, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Bills and notes—Evidence.
    In an action upon a Bohemian oat note, where the defense was that defendant relied on a representation that the vendor was worth $100,000, and. a bond given by it to sell a portion of his produce the following year, two-annual reports of said vendor showing its assets to be worth only $10,000-were offered in evidence to prove the falsity of the representations, which were rejected. Seld, that defendant was not prejudiced by such rejection,, as the reports, if admitted, would have shown that the company was responsible for many times the amount of defendant’s note and any profits-he could have made out of the transaction.
    Motion of the defendant for a new trial upon a verdict directed, at circuit for the plaintiff, the exceptions directed to be heard at-the general term in the first instance.

      Charles A. Widener, for pl’ff; Thomas & Desmond, for def’t.
   Lewis, J.

This is an action to recover upon a promissory note-of $300, given for twenty bushels of Bohemian oats. The defense was that the note was obtained by the fraudulent representation that the oat company, with which the contract was made, was-worth $100,000, and that the defendant relied upon a bond given to him by the company, agreeing to sell for him the following year twice the amount of oats, out of which the defendant was to realize $400. The company failed to perform its contract. To prove the falsity of the representations the defendant offered in evidence two-annual reports made by the company and filed in the office of the-secretary of state of the. state of Michigan, showing that the company’s assets amounted only to $10,000.

One of these reports bore date and was filed the year the note: was given. The other bore date and was filed the following year.

The reports were properly certified.

• Under the plaintiff’s objection they were excluded as immaterial, incompetent and hearsay.

While the correctness of this ruling may be doubted, we don’t-see that the defendant was injured thereby.

The reports if admitted would have shown the company to have-been worth at least $10,000.

The amount the plaintiff could realize out of the transaction, in any event, was $400, the amount of the note and $100 profit.

Had the reports been admitted in evidence, they would have shown that the company was responsible for many times that, amount.

The exceptions should be overruled and the defendant’s motion ■ for a new trial denied, and the plaintiff should have judgment for the amount of the note, interest and costs.

Dwight, P. J., and Macomber, J., concur.


text:
    The Rochester Distilling Co., Pl’ff, v. Asa Razy, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Chattel mortgage—Lien—Crops subsequently planted.
    After the recovery of a judgment by plaintiff the judgment debtor gave-a chattel mortgage on his growing grass, and the corn, potatoes, oats and beans then planted or thereafter sown or planted during the next year. After levy made the mortgagee advertised and sold the crops to defendant! who harvested them and refused to deliver them to plaintiff on demand. Held, that the plaintiff had a prior lien upon the crops planted after the-delivery of the mortgage.
    Motion by plaintiff for a new trial upon exceptions ordered to-be heard at general term in the first instance.

      George D. Reed, for pl’ff; De Merville Page, for def't.
   Lewis, J.

The plaintiff obtained a. judgment against one-Philip P. Lovell, in the supreme court, county of Monroe, on the 13th day of February, 1890, for $147.44. A transcript of the judgment was filed, and the judgment docketed in Steuben county the following day.

Lovell was the lessee of a farm in the county of Steuben in the year 1890. On the 30th day of April, 1890, he gave a chattel mortgage to Esak Page, to secure the payment of money-borrowed of Mr. Page, and also to secure Mr. Page as his accommodation endorser. The mortgage was given upon the chattels and property described therein, as follows: “ The grass-now growing on the premises leased of Drake and Searle, assignee, etc. (being the farm mentioned); also, all the corn, potatoes, oats and beans which are now sown or planted, or which are-hereafter sown or planted during the next year, on the above -described premises, and two new boats made by Bennett.”

Lovell planted about four acres of the land to potatoes, and he also planted some beans. All of the planting was done after the execution and delivery of the mortgage, except about one acre of potatoes which ■ were planted before the mortgage was given.

An execution was issued upon the plaintiff’s judgment against Lovell, and the sheriff, on the 5th day of July, 1890, made a levy upon the growing crops of potatoes and beans aforesaid; he advertised and sold them on the 16th day of August, 1890, to the plaintiff. Mr. Page, hearing of the levy thus made upon the potatoes and beans by the plaintiff, advertised and sold them under his chattel mortgage on the 15th day of July, 1890, to the defendant. The defendant took possession of them, and when they ripened he harvested them and refused to deliver them to the. plaintiff upon demand made, and the plaintiff brought an action to recover possession of the potatoes and beans, with damages for the withholding thereof. At the close of the evidence, both parties asked for the direction of a verdict in their favor respectively. The court directed a verdict for the plaintiff for the beans, and for the defendant for the potatoes, to which decision the plaintiff duly excepted, and the exceptions were ordered to be heard at general term in the first instance. By consent of parties, the value of the beans was fixed at six cents, and the value of the potatoes at $118.80, with $79.20 damages for their detention.

The sale under the execution gave to the plaintiff title to the potatoes and beans, unless the contention of the defendant can be sustained that he got title to them by virtue of the sale under the chattel mortgage. The mortgage was concededly given for a good and valuable consideration, and was duly filed. It is contended by the plaintiff that a verdict - should have been directed in its favor as to the potatoes as well as the beans, but that in any event plaintiff was entitled to recover that part of the potatoes planted after the execution and filing of the mortgage.

As against subsequent purchasers and attaching creditors, a chattel mortgage cannot be given for property not in existence, so as to vest the title when it comes into being in the mortgagee. Cressey v. Sabre, 17 Hun, 120.

There are exceptions to this doctrine. It is held that as between landlord and tenant, because of the fact that the landlord owns the soil, the tenant may, even as against creditors and purchasers, pledge crops to be raised as security for the payment of the rent, thereby giving the landlord an equitable lien upon the after-planted crops. Andrew v. Newcomb, 32 N. Y., 417; Butt v. Ellett, 19 Wall., U. S., 544.

Crops not yet grown, but which grow spontaneously, the roots thereof being in the soil when the mortgage is given, are held to have such a potential existence as that they may be mortgaged. Annual crops raised from planted seed cannot be said to have even a potential existence before the seed is put in the ground.

The plaintiff and Mr. Page were both creditors of Lovell. Plaintiff secured the first lien by the levy made on the 6th of "July, and no reason is apparent why the defendant has any equity superior to the plaintiff. Page occupied the relation simply of a. creditor of Lovell. He had no interest in the farm; he took his-mortgage to secure the payment of money loaned to Lovell, and to secure him as Lovell’s endorser. There was no delivery made of the property prior to the levy of the plaintiff.

We think the plaintiff had a prior lien upon the crops planted after the delivery of the mortgage.

An embarrassment arises because of the mingling of the potatoes which were planted before the giving of the mortgage and those that were planted after. The evidence tends to show about the quantity that was obtained from each planting. The plaintiff was not responsible for the intermingling; that was done by the defendant There should have been a direction of a verdict for the plaintiff for the potatoes that were obtained from those planted after the execution and delivery of the mortgage, as well as for the beans.

A new trial should be granted, costs to abide the event of the,action.

Dwight, P. J., and Macomber, J., concur.


text:
    Charles Eels, Resp’t, v. The American Telephone & Telegraph Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Highways—Telegraph companies.
    Chapter 265, Laws 1848, as amended by chap. 471, Laws 1853, merely protects telegraph and telephone companies from indictment as for a public nuisance, if they place their poles in public highways. It does not give them the right to erect poles in the highways without the consent of the owner of the fee in the highway. The placing of the poles in the-highway imposes an additional burden upon the land, for which the owner is entitled to compensation.
    Appeal from a judgment of ejectment in favor of the plaintiff; entered in Erie county, April 5, 1892, awarding plaintiff possession of the premises described in the complaint.

      Sherman S. Rogers, for app’lt; John M. Hull, for resp’t.
   Lewis, J.

The plaintiff is the owner in fee of a twenty-five-acre farm in the town of Alden, bounded on the north by a public highway known as the Cayuga Creek road; his title extends to the center of the road. This Creek road is an ordinary country highway. The defendant is a long distance telephone company, incorporated under the laws of the state of Hew York for the incorporation of telegraph companies. In the month of August,. 1888, defendant was engaged in the location and construction of a. telephone line along said highway from Batavia to Buffalo. In constructing said telephone line, defendant placed in front of plaintiff’s .farm, on the southerly side of said highway, twelve-telephone poles, without the license or consent of the plaintiff. This action was thereupon commenced to compel the defendant to remove said poles, and to recover possession of the premises •occupied thereby, with damages, etc. At the close of the evidence, the court instructed the jury that the plaintiff was entitled to a verdict for the recovery of the premises from the defendant, with damages for the detention thereof, and that the only question for them to determine was the amount of damages. Defendant’s •counsel excepted to the instructions thus given, and the jury ■thereupon found a verdict for the plaintiff for the recovery of the possession of the premises, with eighteen dollars damages for ■their detention.

The appellant contends that chapter 265 of the Laws of 1848, -as amended by chapter 471 of the Laws of 185S, gave the defendant the right to place its poles in the highway in front of tlic plaintiff’s premises, without his consent, and unless this contention can be maintained, the defendant’s counsel concedes that the case was properly disposed of at the circuit.

The state has a general supervision over the highways; and by the acts above referred to gave its consent to the defendant to use the highways of the state with its poles and wires. Were it not for this legislation, the telegraph and telephone companies would be liable to an indictment as for a public nuisance if they placed their poles in the highways. The acts referred to protected them to that extent, and no more. The state had not the power, and •did not assume to give the companies the right to erect their poles in the highways without the consent of the owners of the fee in the highways.

If the occupancy of this highway by the defendant’s poles is one of the ordinary and legitimate uses for which highways are established, the defendant is right in its contention. Highways .are established to accommodate the public in traveling and transporting their property from place to place by any safe and proper means of communication that the traveler may choose to adopt, provided the means employed are open to be adopted by all who wish so to do. Any proper carriage propelled by electricity, steam ■or animal power may be used, if, after the vehicle has passed over the highway, it is left free and unobstructed, so that any other •citizen can use it for like purposes. If means for traveling are •adopted, the use of which necessitates appliances in the highway of a permanent character, and the use of which is private and ^exclusive, that would be an inconsistent and improper use of the highway, and would impose an additional servitude upon the fee. If the placing of permanent appliances in the highway which are under the control of corporations or individuals were tolerated, the time might soon come when the highways of the country would be practically monopolized by inventions for the transportation of persons and property. Ho reason is suggested for the ■contention of the appellant which does not with equal, or even greater, forcé apply to a claim for the use of highways by steam railroads. The defendant’s poles and wires are placed in and along highways for the use of the public in conversing with each other from distant points, for a consideration to be paid therefor to the-defendant Eailroad companies not only provide the pub-lie with rapid means of communication with each other, but they also transport people and property from place to place; they perform substantially all the functions of the ordinary conveyances in use upon the public highways; and yet it is' the settled law of this state that the appropriation of any part of a highway by the ties and tracks of a railroad is the imposition of an additional burden upon and the taking of the property of the owner of the fee within the meaning of the constitution, which forbids such taking without compensation. Williams v. N. Y. C. R. R. Co., 16 N. Y., 97; Wager v. Troy Union R. R. Co., 25 id., 526; Craig v. Rochester C. & B. R. R. Co., 39 id., 404.

In a note to § 111 of Lewis on Eminent Domain, many,authorities maintaining this doctrine as to railroads are cited. It is said in § 131 of this work, that the lines of a telegraph or telephone company are on the same footing as a steam railroad; they form no part of the equipment of a public highway, but are entirely foreign to its use. When the fee of the street is in the abutting owner, he is clearly entitled to compensation for the additional burden placed on his land. Authorities are referred to in a marginal note to this section, sustaining the doctrine of the text.

To the same effect are Dusenbury v. Mutual Telegraph Co., 11 Abb. N. C., 440; Metropolitan Co. v. Colwell Lead Co., 67 How., 365; Blashfield v. Empire State Tel. Co., 18 N. Y. Supp., 250.

There are authorities in some of our sister states sustaining the contention of the defendant The great weight of authority, however, is in accord with the decisions of the courts of this state. By placing its poles in the highway in front of the plaintiff's premises, the defendant imposed an additional servitude upon the highway, and thereby gave to the plaintiff a right to maintain this action.

The judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


text:
    C. Henry Amsden et al., Pl’ffs, v. Charles R. Smith, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Bills and. notes—Fraud.
    In an action upon a Bohemian seed note, the plaintiffs read the note in evidence and rested. The defendant gave proof tending to establish his defense that it was obtained by fraudulent representations, and also tending to show that plaintiffs were not bona fide holders. Held, that the case should have been submited to the jury, and that a direction of a verdict for the plaintiffs was erroneous.
    Motion for a new trial on exceptions ordered to be heard in the first instance at general term, after direction of a verdict for the plaintiffs at the close of the evidence.

      Garlock & Beach, for pl’ffs ; John Desmond, for def’t.
   Lewis, J.

This action was brought to recover upon a promissory note given by the defendant in payment of twenty bushels of Bohemian oats at fifteen dollars a bushel, delivered to him by the agents of a corporation by the name of the Bohemian Oat & Cereal Company, of Ypisilanti, Mich., and in consideration of a written agreement of the company to sell for the plaintiff forty bushels of oats the following year, raised from the twenty bushels at fifteen dollars a bushel, the company to be paid by defendant thirty-three and one-third per cent commissions for selling.

The note was dated November 6, 1886, for $300, payable to J. M. Orcutt or bearer, due in twelve months, with interest.

The payee Orcutt was the agent of the company.

- The defendant interposed the defenses that the note was obtained from him by fraudulent representations and that the plaintiffs were not bona fide holders for value.

The plaintiffs produced the note, read it in evidence and thereupon rested the case. The defendant introduced evidence tending to establish that he was induced to make the note by fraudulent representations of the agent of the company. .

The general plan of the company’s operations in obtaining such notes is fully explained in the opinion of Justice Bradley, in Watson v. Blossom, 18 St. Rep., 726, decided by this court, and afterwards affirmed by the court of appeals. It is not necessary to rehearse it here. It was held- in that case that the defendant’s evidence on the question of fraud should have been submitted to the jury.

The defendant’s evidence in this case tended quite as clearly to establish his defense of fraud as did the defendant’s evidence in the Watson case.

The enterprise, as understood by all the persons connected with it, was mainly speculative. The principal inducement to defendant to give the note were the representations made to him by the agents of the company as to the munificent profits his neighbors had realized out of similar transactions with the company the year previous; if the company had kept faith with his neighbors the defendant thought it would also treat him fairly, and he believed the representations and gave the note.

These representations were shown to be false; this evidence under the doctrine of Canajoharie National Bank v. Diefendorf, 123 N. Y., 192; 33 St. Rep., 389, placed the burden upon the plaintiffs of showing they were bona fide holders for value. Instead of relying upon the doctrine of that case the defendant assumed the burden of the proof himself.

He sought the evidence from adverse witnesses, but, notwithstanding that, he succeeded in obtaining sufficient evidence, and not too much, so that it became a question for the jury.

The manner and circumstances under which Collamer became possessed of the note, and the transactions accompanying the delivery of it to the plaintiffs, tended strongly to show that neither Collamer nor the plaintiffs were innocent holders.

The fair inference, and one the jury would have been justified in adopting, was that the plaintiffs paid nothing for the note. They took it on the last day of grace, about noon. The circumstances of the alleged discount of the note by the plaintiffs as related by Collamer, and the subsequent transactions tend to show that the transfer was colorable, only.

The case was left, taking the most favorable view of the evidence for the plaintiffs, in doubt as to whether either the plaintiffs or Collamer were bona fide holders for value.

The case should have been submitted to the jury and the direction of the verdict was error.

A new trial should be granted, with costs to abide the event of the action.

Dwight, P. J., and Macomber, J., concur.


author: Macomber, J.

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    The People, Resp’ts, v. Michael Blute, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Assault—Felonious—Motive op prosecutor—Charge.
    On the trial of an indictment for assault with intent to ravish, the complainant testified that defendant dragged her two blocks to a school-house and threw her down but was frightened away. Defendant’s evidence showed that complainant and her witness met two men by appointment; that defendant followed them to the school-house and frightened the men away. The court charged that the prosecutrix had no motive in giving her testimony touching the time and place of the assault. Held, error; as she had the strongest motive to shield herself from the embarrassment of being with a strange man at a place considerably distant from any point that she would naturally traverse on her way home.
    Appeal by the defendant, Michael Blute, from a judgment of the court of, sessions of Steuben county, held in the month of October, 1890, convicting him of the crime of assault in the second degree; and, also, an appeal from an order denying his motion for a new trial made upon a case and exceptions, and also upon affidavits upon the ground of newly discovered evidence.

      Frederick Collin, for app’lt; Frank H. Robinson, for resp’t.
   Macomber, J.

The charge made against the defendant and one John Minon, who was jointly indicted with him, was under sub-division 5 of § 218 of the Penal Code, that at the city of Corning they assaulted one Bessie Thomas, a colored woman, with intent, by force and violence and without her consent, to ravish her. Minon was acquitted by the jury.

The evidence of the People consists mainly of the testimony given by Bessie Thomas herself, which was briefly to the effect that while on her way from the city of Corning to her home in the town of Corning, she was. caught at the corner of Bridge and Pulteney streets, in that part of the city of Corning known as Knoxville, by the defendant and another man, and was dragged a distance of one block, shown to be 429 feet, and on another street a distance of about 550 feet, to a school-house, where one of the men threw her down, whereupon she screamed, and in answer to the scream a person with a lantern came to the place, and then the man let her loose and ran away. The complainant was accompanied by a girl by the name of Kittie Thompson, who, upon her direct examination, testified that she met Bessie Thomas on the corner of Bridge and Pulteney streets in Knoxville, and that two men took hold of her and grabbed her by the arm, whereupon she broke away and ran. Her testimony as a whole was designed to leave the impression that Bessie Thomas, the complainant, was at or near the corner of Bridge and Pulteney streets when accosted by the men. But the evidence in behalf of the defendant shows with much conclusiveness, as well as much testimony given in behalf of the People, that whatever assault, was committed by the defendant upon Bessie Thomas was made upon the steps or near the steps of the school-house. If this be-so, there is not any evidence which would justify the jury in the verdict rendered.

There is evidence given in behalf of the defendant to the effect, that on the evening in question, which was April 12, 1890, these two women had made an appointment with John Cogan and Martin Miles for a meeting on the Knoxville bridge. Soon thereafter it is claimed Cogan told this defendant of such appointment; that Cogan and Miles met the women according to appointment, and passed down Bridge street with them to Jennings street, to the-school house, when Miles and Bessie Thomas turned in and sat on the step of the school house, and Cogan and Kittie Thompson went on towards Flint street; that the defendant Blute had followed these people, and then with two others, John Minon and John Poland, continued to follow them for the purpose, as was-said among themselves, of having a little fun. After Bessie Thomas and Miles had gone to the school-house steps, Blute and Poland went across the road west of the school-house, so as not to be seen, and came from the other side of the school-house, when Blute, impersonating a policeman, said to them, “ What are you doing here ? I will have to lock you up.” Bessie Thomas at that point began to scream, when Cogan and the other men ran away, and when the person with the lantern appeared, Blute also went off.

If the relation of facts as given in behalf of the defendant is true, it is quite plain that the defendant did not commit the crime charged against him. And it is somewhat difficult to account for the verdict except upon the ground that the jury’s minds must have been unduly influenced, as is claimed by the learned counsel for the appellant, by the charge of the learned county judge. The judge began his charge by telling the jury that the defendants had been indicted by the “ diligent efforts ” of the grand jury, but that such indictment was “ not conclusive evidence of guilt, but it is a charge by which they say by their indictment should be investigated and tried by a trial jury as you are.” After calling their attention to the rule that before an indicted person can, be convicted the jury must be satisfied of his guilt beyond a reasonable, doubt, the learned judge instructed the jury that “it is for you to say what shall be a reasonable doubt, whether it exists in this case. A reasonable doubt must rest upon some reason ; a jury must not say I have got it, unless he has got some reason to doubt the evidence or the whole evidence in the case. * * * So that, gentlemen, you will discover that you are, to use a common expression, you are to a great extent master of the situation ; the responsibility of this matter is with you, and while the defendants have a right to expect fair treatment and fair consideration, the public, society and the people are looking out to see that the public are protected and not violated. * * * The prosecution places their evidence upon the evidence of two witnesses, Bessie Thomas, who is the complainant, is a woman, a married lady, pursuing a legitimate and worthy enterprise, her husband being a barber working at Painted Post, her home being; up in that direction, and she a hairdresser, and working for such, customers as employ her, and the two having the care and bringing up of their little children. She comes upon the stand andl tells you in a plain and earnest manner,” etc. He further instructed the jury that there was nothing to contradict the statement of Kittie Thompson, that she ran when the men came ándi grabbed Mrs. Thomas. He further said in respect to these twowitnesses: “ They told their story, and adhered to it. They answered all the questions; no hesitation; no disposition to excuse or shirk the answers; they told their stories, and then submitted! to the cross-examination,” etc. In speaking of the defendants^ and the other men who were with them, the court said: They range from the age of twenty-one to thirty-four years. It does not appear that any have families, although at the age when yomight naturally expect in the natural course of human events that they would be men of families. If they are not, then they were at liberty, as far as the family was concerned, as far as domestic relations were concerned, to seek out their own line of conduct. If they are men of families, then it is to their shame that they engaged in any such enterprise as they went over into Knoxville for. They tell a story upon which all concur; and they are all friends, all confidants, or they would not attempt to engage with each other in such Ian undertaking as they undertook that night It is not the way good men or good citizens conduct themselves. What business had they over there,, any of them ? The two claim they made this engagement with these two women; another one tells Blute of it, and he felt safe in trusting Blute, goes on according to his story, and. says they would have some fun with them. How all this may be true, but how does it impress you? You are not to determine this case, or any other, by the mere testimony, or what is sworn to, or by the number of witnesses on either side,, but by what you really and honestly think is the truth.. * * * They give such character to themselves as; they see fit, and you are to take that as true. How many o£ them had been arrested, and how many times had they been arrested? What is the character of the offenses that they have been arrested for; and beyond and above all, what was their purpose in going across the river that night, following these two women ;• what was their purpose? It is for you to say whether their credibility as witnesses is affected by these considerations. * * *' How, on the other hand, how is it with these two women ? Is there anything from the time they were born down to the time of this trial that is shown that should affect their credibility? * * * Has there been any object on the part of these two witnesses, these two women, to tell anything but the truth? If this was an action for damages where you were sitting in a trial jury in a case of damages, where you might award five hundred or a thousand dollars to Bessie Thomas for this assault, then it might be said she had a purpose in telling her story against Blute, or against any of the persons, but there is not anything of that kind in this case. Is she an interested witness in any way? Not a dollar or a penny can she receive from any results that may come from this trial. * * * Now you will recollect that the witnesses in this case for the defendant, and they have been at liberty to call upon everybody on earth that they wanted to, to excuse themselves; and they have been at liberty to produce evidence of their own good character, which they have not done. The People cannot attack their characters until they give evidence of their good 'character. This they have not done, and the People have to be silent on the subject of character for that reason, and they have called all the witnesses they desired to. Those five men constitute 'substantially the defense; their evidence constitutes substantially the evidence, whatever it is.”

After the delivery of this charge the defendant’s counsel, among other requests to the court to charge, submitted the following: That there is no evidence in this case that lawlessness and crime go unpunished in Corning, as stated by the district attorney in his address to the jury.” Court: “I will leave that with the jury ■to say.”

Exception was taken by the counsel to certain portions of the-charge as delivered.

While it is true that the precise remarks made to the jury by the district attorney are not given in the case, yet it was assumed upon the trial that in his address he had used the language attributed to him, because there was no denial thereof. But this extrinsic fact, whether lawlessness and crime went unpunished in Corning, was submitted to the jury.

The counsel also asked the court to instruct the jury as follows : “ I ask your honor to charge that the fact that the defendants were indicted by the grand jury is.no -proof presumptive or otherwise of their guilt Court: I have so charged.”

- The case .as printed does not contain such instructions. But assuming that the learned court intended by its remark last given so to charge, we are still of the opinion that the effect of the charge, as a whole, was calculated to, and doubtless did, influence the minds of the jury in a manner prejudicial to the rights of the defendant Moreover, there was an actual error in the charge respecting the motive of Bessie Thomas, the prosecutor. The jury were positively instructed that she had no motive in giving her testimony touching the time and place of the assault. But it appears to us, hoyever, that there might have existed a bad motive on her part, and that was to shield herself from the effect^ of the testimony given by the witnesses as to the appointment which slie and the young woman had made, and particularly had she the strongest motive to shield herself from the embarrassment of being with a strange man on the steps of a school-house, a place considerably distant from any point that she would naturally traverse on her way home. . ...

On the whole we think that the motion for a new trial should' have been granted by the court of sessions on the defendant’s motion, which was made on a case and exceptions.

Judgment and conviction reversed and new trial granted, and the case remitted.]» the court of sessions of Steuben county, with instructions to proceed therein.

Dwight, P. J., and Lewis, J., concur.


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    William Delzer, Resp’t, v. The Buffalo Star Brick Co., Limited, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    ¡Referee — Findings—¡Hot disturbed on appeal ip any evidence to SUPPORT.
    Where there is evidence to support the findings of a referee, they will not be disturbed on appeal, even though the appellate court conclude that such findings are against the weight of evidence.
    Appeal from a judgment entered upon the report of a referee herein in Wyoming county clerk’s office, January 25, 1892.

      Andrews & Hill, for app’lt; Clarence H. Bean, for resp’t.
   Lewis, J.

This action was brought to recover compensation for services and materials furnished by the plaintiff in the drilling of a well for the defendant in the town of Lancaster, Mew York, in pursuance of an oral agreement made by the parties, by the terms of which, as claimed by the plaintiff, the defendant agreed to pay him for drilling the well $1.50 per foot through earth and rock other than flint rock, and $3 per foot through flint rock; that he drilled the well and furnished certain materials by the direction of the defendant, and that defendant was indebted to him therefor in the sum of $163.31.

The defendant denied that it owed the plaintiff anything, and alleged that it was engaged in manufacturing brick at Lancaster, and wished to obtain for use in its business a well that would furnish a stream of water one inch and a half in diameter; that the plaintiff applied for the job of boring the well, and represented himself as skilled in locating subterranean water courses by the use of a plum, cherry, peach or witch hazel branch; that he represented to defendant that he could not only determine the location-of subterranean streams, but that he could ascertain their size, and the point where they crossed each other, by the use of a twig as aforesaid. That he claimed to designate a location near defendant’s brick yard, where he could by drilling reach the desired stream of living water, and agreed that if defendant would employ him to drill a well that he would guarantee a well which would furnish the required amount of water, and that in case he failed to furnish such a well, he would not charge anything for his labor and materialsand that upon these conditions he was given the contract to drill a well; that he bored a well, but that it was a failure, and did not furnish the agreed amount of water, but was in fact substantially a dry hole.

The plaintiff, while admitting that he represented to defendant. that with the use of one of the twigs mentioned he could perform nil the alleged representations, says that he did locate & large, living subterranean stream, but that because it was too remote from the brick yard to suit the defendant, he was directed by the defendant to bore at a place where the twig indicated a subterranean stream, but One of smaller dimensions; that he expressed to defendant his doubts of the propriety "of putting a well down at that place, and did not warrant success, but by defend-,antis -direction bored for the smaller stream.

Plaintiff testified that in his conversation with defendant he did .guarantee that he would reach a living stream, but did not agree .to reach one of the dimensions testified to by the defendant’s witnesses. That nothing was said about a well furnishing an inch ■and .a half stream.

The'defendant’s theory of the bargain was sustained by a number of witnesses, while the plaintiff’s,contention was supported by bis own evidence mainly.

The referee adopted the' plaintiff’s contention. • A perusal of the printed evidence leads our minds to the conclusion that the referee’s findings are against the weight of the evidence, but there being evidence to support his findings, and he having had the advantage of seeing and hearing the witnesses, his findings in our judgment shoul'd not' be disturbed.

The judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


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    Kenneth B. McEwan, App’lt, v. Daniel Butts and Louisa Carpenter, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    4. Appeal—Judgment of non-suit will not be disturbed if evidence to support.
    Where there is evidence to sustain a judgment of non-suit, it will not he disturbed on appeal.
    2. Foreclosure—Sale.
    A sale under a judgment of foreclosure will not be set aside in the absence of fraud, simply because a higher price can be reasonably anticipated on a re sale, even where relief is sought by motion.
    Appeal by the plaintiff from a judgment in favor of the defendants, dismissing the complaint on the merits.
    The action was brought to set aside a sale of a farm situated m the town of Greece, Monroe county, upon a mortgage foreclosure judgment. . .
    . . The action was tried at a Monroe county equity term m September, 1891.

      John Desmond, for app’lt; Albert H. Harris, for resp ts.
   Lewis, J.

The defendant, Daniel Butts, was indebted to his father, Christian Butts, at the time of the desa^h of his father, February 19, 1888, in the sum of about $900.

0Simon Butts was appointed executor of the will of Christian Butts, and as such executor obtained a judgment against Daniel ' Butts on said claim for $1,082.77 in January, 1890.

An execution was issued upon said judgment against Daniel Butts’ property and returned wholly unsatisfied, and thereafter the said executor sold the judgment to the plaintiff for the sum. of $175.

Daniel Butts was the owner of a farm in the town of Greece,. Monroe county, at the time of bis father’s death, and while he was owing his father the debt aforesaid. The farm was mortgaged Ito the Rochester Savings Bank for $2,000, which mortgage was dated March, 1887. The mortgagor, Daniel Butts, neglected to pay the interest as it fell due on the mortgage, and the bank commenced an action to foreclose the mortgage and recovered a judgment and the farm was sold as directed by the judgment, November 17, 1888, to the defendant Louisa Carpenter, she being the highest bidder at the sale.

The executor, Simon Butts, held the claim as executor against Daniel Butts at the time the sale took place, he neglected to attend the sale to protect the claim, although he was informed in due time that the sale was to take place, and he neglected for more than a year after the debt was due and after the. sale to put the claim in judgment.

The defendant, Louisa Carpenter, after purchasing the farm sold a portion of it and borrowed of the Rochester Savings Bank $2,000, and gave to the' bank in payment her bond with a mortgage, as collateral thereto, upon that portion of the land purchased at the sale which the plaintiff seeks to reach by this action. The bond and mortgage are unpaid still. The land brought or. the foreclosure sale considerably less than its true value.

The plaintiff, as the owner of the judgment against Daniel Butts, purchased as aforesaid of the executor of Christian Butts, brought this action in September, 1890, against Daniel Butts and Louisa Carpenter to set aside the sale under the savings bank foreclosure judgment and the sheriff’s deed of the premises to Louisa Carpenter, on the ground-’ that the judgment and sale and conveyance were procured by fraud and collusion of the defendants. That portion of the premises which the defendant Carpenter conveyed after the sale is not sought to be reached by this action.

The cause was tried at the Monroe county special term and resulted in the dismissal of the plaintiff’s complaint on the merits.

From the view we have taken of this appeal the foregoing or& all the facts we deem necessary to particularize.

The plaintiff’s evidence tended with considerable force to prove the allegations of fraud in his complaint, but his evidence was met by the evidence of Mrs. Carpenter, Daniel Butts and other witnesses called by the defendants, so that the case presented' questions of fact for the determination of the trial justice, and he found them in favor of the defendant. We have carefully-read the evidence and cannot say that it so preponderated in favor of the plaintiff that we would be justified in disturbing the judgment. The trial court had the opportunity of seeing the witnesses and hearing their testimony. If Mrs. Carpenter and her witnesses testified truthfully she was a Iona fide purchaser for value, and both herself and father were free from any fraud in the premises.

Stress is laid on the fact that the land sold for considerably less, than its value. This would be a more important factor had the plaintiff sought relief by way of a motion to set. aside the sale, addressing himself to the favor and discretion of the court. By the form of his action he claimed the legal right to set aside the deed and sale because of fraud, and having failed to prove fraud, the price the land brought is of no importance.

A sale under a judgment will not be set aside in the absence of fraud, surprise, or well grounded misapprehension, simply because a higher price can be reasonably anticipated on a r.e-sale of the premises, even where relief is sought by motion. Kellogg v. Howell, 62 Barb., 280; Burchell v. Voorhis, 49 How., 247.

The plaintiff’s exceptions to the admission of the evidence as to the value of the life estate of the defendant Daniel Butts in a part of the property sold, are unavailing, as he failed to establish fraud.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


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    Henry Nicholas, Resp’t, v. John E. McIntire et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Lease—Consideration for promise to emplot.
    A lease to A. by If. furnishee a good consideration for the promise of M. to employ If.
    2. Guarantee— Construction.
    Defendants guaranteed A.’s lease “to the amount of five hundred and sixty dollars, or until January the first, 1891.” In such lease A. covenanted to make certain repairs, which he failed to do. Held, that defendants were liable to pay damages for the breach of A.’s covenant in regard to repairs.
    3. Same—Parol evidence admissible.
    In such case, if the clause quoted created any ambiguity, it was proper to resort to paroi evidence to relieve the guarantee of such ambiguity.
    Appeal from a judgment entered in the cleric’s office of the county of Erie, on the 21st day of December, 1891, upon the report of a referee.

      M. Fillmore Brown, for app’lt; Edward T. Durand, for resp’t.
   Lewis, J.

The claim of the plaintiff for damages for breach of the contract to furnish him employment was established by the evidence.

The lease to Armstrong furnished a good consideration for the promise of defendants to employ the plaintiff. The breach of the agreement on the part of the defendants and the damages sustained were proven.

The terms of defendants’ guarantee that Armstrong would perform the covenants of the lease are sufficiently broad to cover the payment of the rent up till January 1, 1891, and also any damages which might follow by the failure of Armstrong to leave the premises is as good condition as they were when taken.

The rent Armstrong paid, but he failed to perform the covenant as to repairs. If the words appended to the guarantee, to wit: “To the amount of five hundred, and sixty dollars, or until January the first, 1891,” are to be construed as limiting the defendant’s liability for the payment of rent that should accrue by the first of January, 1891, it did not relieve them from their liability to pay damages for the breach of Armstrong’s covenant in regard to repairs.

The paroi evidence shows that the defendants agreed to guarantee that Armstrong should perform the last mentioned covenant, and jf the clause quoted created any ambiguity it was proper to resort to paroi evidence to relieve the guarantee of such ambiguity. Dodge v. Zimmer, 110 N. Y., 43 : 16 St. Rep., 657.

The report of the referee is sustained by the evidence, and we find no reason for a reversal of the judgment.

The j udgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


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    In the Matter of Proving the Will of John McCarthy, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Will—Competency of testator—Evidence.
    Upon the application for probate of a will it appeared that the testator was over eighty-two years of age at the time of its execution; that he had been, for some time prior thereto, very seriously ill with an incurable disease, his mind in a feeble condition his physician had ceased to treat him, giving as a reason that he could do nothing further to arrest the disease; that on the day the will was signed he was lying helpless upon his bed, and his mind so impaired, that lie was unable to carry on conversation, and that it was with great difficulty, if np£ impossible, for him to comprehend the questions put to him. The surrogate found that the testator did not have sufficient strength of mind to execute a will. Held, that the finding was justified by the evidence.
    2. Same—Conversation of widow of deceased and attorney.
    In such proceeding a conversation between the widow of the deceased and an attorney, occurring after the death of her husband, and consisting mainly of advice to her not to oppose the probate of the will, and promises by the attorney that he would not take an active part in the proceedings to prove the will, is incompetent.
    3. Same—Evidence.
    So, also, a question put to the attorney who drew the will, as to who gave him the instructions to draw it, such instructions not being given in the hearing or presence of any other person than the testator and witness, is incompetent.
    4. Same—Physician’s contradiction.
    In such proceeding a physician gave evidence tending to show that, nr his opinion, the testator was competent to make the will, and denied that he had stated otherwise. Held, competent to contradict him by showing that he had stated that in his opinion the deceased was not competent to make a will.
    Appeal from a decree of the surrogate of Ontario county,, entered on the 24th day of October, 1891, refusing probate to an instrument alleged to be the last will of John McCarthy, deceased, on the ground that the decedent was mentally incompetent to make a will.

      John E. Bean, for app’lt; D. B. Backenstose, for resp’ts.
   Lewis, J.

The will in controversy bears date the 16th day of November, 1888, and the deceased died on the 22d of December following.

The surrogate found that McCarthy was at the time of the alleged execution of the instrument propounded as his will of unsound .mind and memory and not competent to execute the same.

The deceased was eighty-two years old and upwards when he died. He had been for. some time before the 16th of November, the date of the will, very seriously ill with an incurable disease. His mind was in a very feeble condition, his physician had ceased to treat him, giving as a reason that, he could do nothing further to arrest the progress of the disease.

The evidence tends to show that on the day the will was signed McCarthy was lying helpless upon his bed and that his inind was ■so impaired that he was unable to carry on conversation. The testimony as to his condition was quite conflicting, but it fairly ■establishes that it was with great difficulty, if not impossible for him to comprehend the questions that were put to him, and it is very doubtful if he had sufficient strength of mind to comprehend the nature and effect of the act of executing the will. The surrogate, who saw the witnesses and heard their testimony, has found as a fact that he did not have sufficient strength of mind to execute a will. His findings, we think, were justified by the evidence and should not be disturbed, unless errors were committed mpon the trial requiring a reversal..

Section 2545 of the Code of Civil Procedure provides that the decree of a surrogate admitting or rejecting a will must not be reversed for an error in admitting or rejecting evidence unless it appear to the appellate court that the exceptant was necessarily prejudiced thereby.

The conversation between Mrs. McCarthy, the widow of the deceased, and the attorney, Nicholas, was incompetent and immaterial. She testified that it occurred after the death of her lius-’ band It consisted mainly in the advice of Mr. Nicholas to her not to oppose the prob&te of the will, and promises on his part that he would not take an active part in the proceedings to prove the will. While it was incompetent evidence, it is not apparent that it necessarily or probably had any effect upon the decision of the surrogate.

The question put to ’ Mr. Nicholas, the attorney who drevr the will, as to who gave him the instructions to draw the will, was, we think, properly excluded. He testified that he did not get the instructions from any other person than John McCarthy, the testator. The surrogate properly held that the testimony was incompetent unless the instructions were given in- the hearing or presence of some other person than the testator and the witness. Loder v. Whelpley, 111 N. Y., 239 ; 19 St. Rep., 631; Matter of Coleman, 111 N. Y., 220; 19 St. Rep., 501.

Dr. Rodenberger gave evidence tending to show that in his •opinion McCarthy was competent to make the will He denied that he had stated otherwise. It was competent to contradict him by showing that he had stated that the deceased was, in his opinion, not competent to make a will. The question put to the witness Mary Ann Lynch, viz.: “ Could McCarthy at any time after the 15th of November, 1888, carry on a connected conversation with anybody,” was objectionable as calling for the opinion of an inexpert witness, but it is apparent from what followed that the answer did not injure the proponent's case. The surrogate understood her answer to mean simply that the witness thought that McCarthy was so weak that he did not possess sufficient physical .strength-to carry on a connected conversation.

The testimony of Mrs. Nobles as to what her father’s physical condition was when she reached home, and whether he left his bed room after she arrived, did not relate to any personal transaction •or communication between her and her father, and was not objectionable.

This case has been thoroughly litigated; it has been tried by the surrogate three times, and this is the third appeal to this court. We think the findings of the surrogate fairly sustained by the evidence and as we find no errors occurring upon the trial of sufficient importance to justify a reversal, the decree appealed from should be affirmed, with costs to the proponent and contestants, to be paid out of the estate.

Dwight, P. J., and Macomber, J., concur.


author: •Follett, Ch. J.

text:
    The Third National Bank of Springfield, Mass., Resp’t, v. Orlando B. Hastings, App’lt.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Bills and notes—Effect of insolvency discharge upon rights of SURETY.
    Defendant, a citizen of New York, made Ms promissory note to the EL Paper Co., a Massachusetts concern, due Sept. 13,1887,for its accommodation. It was indorsed by the H. Paper Co. and sold before maturity to plaintiff, also situated in Mass. In July, 1887, the H. Paper Co. was adjudged insolvent. On Sept. 30, plaintiff learned that it was an accommodation note, and began this action the next day, but in Oct. plaintiff proved Its claim on said note against the H. Paper Co. in the insolvency court, and on a compromise received its percentage. Held, that plaintiff did not after Sept. 30 voluntarily discharge the principal debtor or in any way impair the surety’s rights or remedies against the principal.
    3. Same.
    The plaintiff being within the jurisdiction of the court, its claim would have teen discharged though it had refrained from proving it, and had it refused to prove its debt it would have had no effect upon the proceedings, nor upon the rights of defendant, except it would have deprived him of the benefit of the percentage paid in the compromise.
    Appeal from a judgment of the general term of the supreme court of the first judicial department, which affirmed a judgment •entered on a verdict directed for the plaintiff.
    This action was to recover the amount unpaid on a promissory note, and was brought by an endorsee against the maker. It- was defended upon the ground that the maker had been discharged from liability.
    April 11, 1887, the defendant, at the city of New York, made his promissory note, whereby he promised to pay, at that city, to the order of Hurlbut Paper Company, $2,904.46, five months after date. The note was made for the accommodation of the payee, a firm composed of Thomas 0. Hurlbut and Henry C. Hurlbut. It was endorsed by the payees, and by them sold to Fennessy, Armstrong & Co., of Springfield, Mass., who, before maturity, sold and delivered it to plaintiff.
    The Hurlbuts were resident citizens of Massachusetts, and were there engaged in business. The plaintiff was a National bank, engaged in business in the same state. The defendant was and is a resident citizen of the state of New York. The note fell due Sept. 14, 1887.
    On the 19th of July, 1887, the Hurlbut Paper Co. was, upon its own petition, adjudged to be insolvent by a court of insolvency of the state of Massachusetts. The note was presented for payment at maturity, but it was not paid, and was protested. September 80, "1887, the plaintiff’s president was told that the defendant made the note for the accommodation of the payee. On the next day the summons and complaint in this action were personally served. Oct. 8, 1887, the plaintiff duly proved "its claim on said note against the Hurlbut Paper Co. in the insolvency court, and on the 5th of that month the insolvents filed with the court a proposal to compromise, by which they offered to pay in full all debts entitled to priority, the expenses of the proceedings, and twenty per cent, of all other debts. A notice to the creditors was issued by the court, and the hearing was set for Dec. 6, 1887, on which date the court found," “ that the required proportion in number and value of the creditors who have proved their claims have assented in writing to said composition in accordance with the law, and all the requirements of law having been complied with, it appears, and I find that said composition has been duly assented to and is consistent with justice and for the interest of the creditors.”
    It was thereupon adjudged that the insolvents should pay the sums into court, that the register should pay it over to the persons severally entitled thereto, and further: “ That when said sums of money shall have been paid into court as aforesaid a certificate of discharge shall thereupon be granted to said debtors.”
    January 3d, 1888, the insolvents paid the required sum into court, and thereupon they were discharged from all copartnership debts provable against their estates founded on any contract made- or to be performed by them within the state of Massachusetts.
    February 1, 1888, the plaintiff received from the register its percentage on the note and endorsed thereon the following receipt:
    “ Received of E. T. Slocum, Register of the Berkshire County,, Mass., Court of Insolvency, five hundred and seventy-five 66-100' dollars, in full of the liability of the Hurlbut Paper Co. on within note, paid under the terms of the composition of said Hurlbut Paper Go., in insolvency duly confirmed by said court
    F. H. Harris, President.”

      Flamen B. Candler, for .app’lt'; James L. Bishop, for resp’t.

       Affirming 35 St. Rep., 475.

   •Follett, Ch. J.

In case two persons are liable for a debt, one. as principal and one‘as surety, a voluntary release by the creditor of the principal with knowledge of the relation existing between the debtors discharges the surety. As between the Hurlbut Paper Go. and the defendant, the former was principal and the latter surety, of which fact the plaintiff was told September 30, 1887. The question presented by the record is, did the plaintiff after that date voluntarily discharge the principal debtor or in any way impair the surety’s rights or remedies against the principal. If this question is answered in the affirmative, the judgment must be reversed; but if in the negative, it must be affirmed. The discharge alleged, and attempted to be established, arises out of the insolvency proceedings, and the acceptance by the plaintiff of the percentage paid in those proceedings.

Among other provisions in the statutes of Massachusetts, regulating insolvencies, and proceedings by and against insolvents, are the following:

“ Sec. 81. The debtor shall thereupon, except as provided in § 84, be absolutely and wholly discharged from debts proved against his estate, and from all debts provable under this chapter, and founded on any contract made by hinp * * * while an inhabitant of this state, if made within this state, to be performed within the same, or due to any person resident therein at the time of the first publication of the notice of the issuing of the warrant.” Chap. 157, p. 892, Public Stat. of Mass, of 1882.

The debt sought to be recovered is not within the exception mentioned in § 84.

The Hurlbut Paper Go. was a.firm engaged in business in Massachusetts, and both of the partners were resident citizens of that state, in which they made the endorsement by which the debt was incurred whicn they promised to pay in the city of New York, but it was due to a resident of the state of Massachusetts. The insolvents and the plaintiff being resident citizens of that state, were bound by its statutes and subject to the decisions of its courts in all matters of which they had jurisdiction, provided jurisdiction over their persons was acquired. The insolvency court had jurisdiction of the subject matter and acquired jurisdiction over the insolvents by their petition, and of the plaintiff by issuing a warrant against the estate of the debtors and serving notice thereof on the plaintiff. Having jurisdiction, the court was authorized to make a decree discharging the insolvents from all liability on their -endorsement of the note held by the plaintiff, no matter whether it appeared in the proceedings' or not Had the plaintiff voluntarily procured the discharge of the Hurlbut Paper Co. from its liability on the note, the defendant would have been released. Gardner v. Oliver Lee & Co.'s Bank, 11 Barb., 558; Phelps v. Borland, 103 N. Y., 406; 4 St Rep., 233.

In the cases cited the creditors were not within the jurisdiction of the insolvency courts, but voluntarily appeared, thus giving-the court jurisdiction over them and authority to discharge the debtors from all liabilities to them. But such is not the case a-t bar. The plaintiff did not institute the proceedings against the insolvents, nor did it consent to the compromise approved- by the court, and nothing that it did or omitted to do procured or contributed to the discharge of the insolvents. The bank being within the jurisdiction of the court, its claim would have been, discharged though it had refrained from proving it. Had the plaintiff refused to prove its debt it would have had no effect upon the proceedings, nor upon the rights of the defendant, except it would have deprived him of the benefit of the percentage paid on the compromise, of which he would have had just cause for complaint.

The judgment should be affirmed, with costs.

All concur.


author: Landon, J.

text:
    Abram M. DeWitt et al., App’lts, v. The Elmira Transfer Railway Co., Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Statutes—Construction of—Laws 1878, chap. 171.
    By chap. 171, Laws 1878, the city acquired the fee to the lands therein named, which had formerly been a portion of the Chemung canal, and not a mere easement, and the phrase “for the uses and purposes of a street ” was no reservation of any part of the title, but means that the city should use the canal for that purpose.
    Appeal from a judgment dismissing the complaint, entered upon an order granted upon the decision of the general term of the fourth department, reversing an interlocutory judgment of the special term, directed upon overruling the defendant’s demurrer to the plaintiff’s complaint, and bringing up for review the decision upon the demurrer.
    The facts are sufficiently stated in the opinion.

      Louis Marshall, for app’lts ; Frederick Collin, for resp’t.

       Affirming 29 St. Rep., 613.

   Landon, J.

The complaint to which the demurrer was interposed sets forth in detail a series of facts which the plaintiffs claim show that two lots, which they own, on the easterly side of State street in the city of Elmira, extend to the center of the-street, and that the fee to the center of the street is in them subject to the public easement for street purposes; that the defendant, a street railroad corporation, obtained the consent of the city to lay its railroad tracks and operate its railroad in State street, and over the portion thereof of which the fee is in the plaintiffs, but has not obtained any right from the plaintiffs, and was proceeding to lay its tracks. This action was commenced to enjoin, the defendant. The material facts are hereinafter stated.

On July 17, 1866, the canal board of, the state declared abamdoned by the state for canal purposes certain of the lands of the Chemung canal, in the city of Elmira, embracing the locus in quo,. and what now constitutes State street in that city. The state was. the owner in fee of such lands. The city of Elmira subsequently acquired from the state, under chapter 785, Laws 1872 ; chapter-834, Laws 1873, and chapter 171, Laws 1878, whatever title to the portion thereof now constituting State street that the terms» of those acts granted to the city, or authorized it to acquire. Before the abandonment of the canal the plaintiffs owned two lots-then adjoining the easterly side of the canal, and now adjoining the easterly side of State street. Under chapter 482, Laws of. 1881, the plaintiffs acquired from the state whatever title then remained in it to the land embraced by extending the side lines o£ their adjoining lots to the center of the prism of the canal, and making such center line their western boundary. Such center line is now the center line of State street.

If the city acquired from the state only an easement in the-land used for State street, then the plaintiffs are owners of the fee, subject to the easement, and are entitled to relief, otherwise; the judgment is right and should be affirmed.

Chapter 785, Laws 1872, purported to confer upon the city of Elmira authority to convert the abandoned canal into a public, street and to use it for that purpose, but it expressly reserved the fee in the land to the state. Chapter 834, Laws 1873, was-a recognition of the authority conferred upon the city by the previous act, and conferred upon the Utica, Ithaca & Elmira.-; Railroad Co., subject to the consent of the city of Elmira, tlmright to use such bed of "the canal for its railroad. Section 6, art. 7 of the constitution of 1846, provided that: The legislaturc shall not lease or otherwise dispose of the canals of the-state.” It is not necessary to consider the scope of this constitutional provision further than to remark that it is not improbable that the legislature did not grant the fee of the abandoned canal to the city, lest such a grant might contravene the provision.

Prior to April 25, 1878, the city had accepted the privilege conferred by the state respecting the use of the canal bed for a street, but owing to a claim of title made by Lucius and Joseph Humphrey and Samuel Hubbell to the fee of another portion of the abandoned canal," forming part of the proposed street, the actual grading and opening of the street had not been-completed. The claim of Humphreys and Hubbell to title was-under letters patent from the state, which were granted to their grantors July 17, 1866, the same day that the canal board declared the canal within the city of Elmira abandoned.

In 1876 the People of the state brought an action to vacate-the letters patent, and in the same year obtained judgment te that effect at special term, which in 1878 was reversed by the general term. People v. Stephens, 13 Hun, 17. No judgment upon the decision of the general term was entered. Ho appeal was taken. The Humph revs and Hubbell claimed $23,000 as-. ■the value of the land involved in the litigation and to be taken for the street

The city proposed to assess this sum upon other property benefited in case the letters patent were sustained ; the result of an ■appeal to the court of appeals was considered doubtful, and on April 25, 1878, chap. 171 of the laws of that year was passed. All its provisions material to the title granted to the city were .-subsequently complied with. It is upon this act that the nature of the city’s title chiefly depends. The act is entitled “ An act transferring a portion of the Chemung canal to the city of Elmira for street purposes.” Its material parts areas follows: “Sec. 1. All that portion of the Chemung canal (describing it), is hereby released and transferred to the city of Elmira for the uses and purposes of a street upon condition that the city of Elmira pay to Lucius A. Humphrey and Joseph S. Humphrey jointly the sum of five thousand dollars, and to Samuel A. Hubbell the sum -of three thousand dollars, for the title and interest of the state .and of the said persons therein respectively, and also pay the sum of twelve hundred dollars, the costs, charges and expenses of the state incurred ” in said suit respecting the letters patent, and also upon the condition that the city of Elmira should raise such sums of money by assessment upon the lands to be benefited by changing the canal into a street.

Thus, under the act of 1872, the city had acquired the right to use all that part of the" bed of the abandoned canal that it needed for a street, except the portion thereof claimed by Humphreys .and Hubbell. The validity of their claim was in litigation at the suit of the state. While the suit was pending the construction and use of the street were delayed.

In 1874 the section of the cohstitution above referred to was amended, the amendment taking effect January 1, 1875. The •section was changed so as to read, “ The legislature shall not lease -or otherwise dispose of the Erie canal, the Oswego canal, the ■Champlain canal, the Cayuga and Seneca canal or the Black river canal.” The Chemung canal was thereafter exempt from the constitutional prohibition of lease or disposal by tlfe legislature. The •state was thus enabled to confer upon the city the title to the ■canal bed which it had thus far withheld, and had not granted by the letters patent in litigation. It was willing to settle the pending litigation with Humphreys and Hubbell and vest in the city whatever title and interest it had in the canal bed, if Humphreys and Hubbell would do the same in respect to their title, upon condition that the city would pay the state its costs and expenses of the litigation and pay Humphreys and Hubbell $8,000. Hence the act of April, 1878. Its terms were accepted by all parties in interest and complied with.

Thus, whatever title to the canal remained in the state and in Humphreys and Hubbell, was paid for by the city both to the state and to Humphreys and Hubbell. Unless the terms of the act of 1878 granted to the city less title than it paid for, the city acquired all the title that was outstanding. By the terms of the act, the state “released and transferred ” the canal to the city. If Humphreys and Hubbell had any title, they, by accepting the. payment made to them for it by the state through the city under the terms of the act, consented that the state should transfer to the city their title along with its own. The payment by the city was “ for the title and interest of the state, and of said persons (Humphreys and Hubbell) therein respectively.” Ho reservation or exception of title is expressed in the act. Its second section does, indeed, contain a reservation, but it is of the right of the state to connect the sewer running from the state reformatory in Elmira with the sewer in the transferred canal, and to maintain-the same. There is no other reservation; the expression of this reservation, and no more, is some evidence that no more was intended. It is true that the canal was released and transferred to the city for the uses and purposes of a street. But the city had the right, so far as the state alone could confer it, to use it for such purposes under the act of 1872. The new grant under the act of 1878 was manifestly intended to be of something more than the-existing right to use it for the same purpose, and we find this addition to the former grant in the transfer of the canal itself as distinguished from and supplemental to the existing authority to use-it, and in the express statement that the consideration to be paid is for the title both of the state and of Humphreys and Hubbell.

The phrase “ for the uses and purposes of a street ” is no reservation of any part of the title, but here undoubtedly means that the city should use the canal for that purpose ; thus showing that an additional consideration for the grant moved to the state in the-benefit to result from such use. Title thus acquired is undoubtedly to be held in trust for the public use, and the legislature, if necessary, could control and direct the trust, but this is not inconsistent with title in fee to the land forming the street. Kellinger v. Forty-Second Street R. R. Co., 50 N. Y., 206-209.

We conclude that the city acquired the fee under the act of 1878.

It is undoubtedly true, as the learned counsel for the appellant contends, that certain grants by the sovereign are to be strictly construed in favor of the grantor, and are not to be expanded by construction so as to embrace more than is strictly necessary to satisfy their terms. In the recent case of Syracuse Water Co. v. City of Syracuse, 116 N. Y., 167; 26 St Rep., 864, the grant of a. franchise claimed by the grantee to be exclusive was tested by this rule. The same rule of strict construction applies to the grant of large tracts of land by the state to corporations to' promote the construction of railroads and other objects of public utility, but. also of private ownership and profit. Leavenworth, etc., R. R. Co. v. United States, 92 U. S., 733.

The same rule is applied against the state itself or the grantees of its power of eminent domain, when private property is taken for public use; the policy of the law is to protect the private-owner in his title so far as the act of the legislature and the public-purpose will permit. Washington Cemetery v. Prospect Park, etc., R. R. Co., 68 N. Y., 591.

The principles involved are clear; the state should be protected against the encroachment of private interests upon its sovereign rights, and against the overreaching rapacity of monopolistic corporations ; and private parties should also be protected against the. -unnecessary exactions of the state.

It is obvious that the reason of these rules does not apply to dhe present case. The land here in question had ceased to be useful to the state, was a small strip suitable for a public street, .and could best be devoted to that purpose by a grant of it by the state to the city. Undoubtedly the original grant of the mere easement for that purpose would have sufficed if no complications had arisen over Humphreys and Hubbell’s claim of title. But •they did arise, the state was a party to them, and the city was the .sufferer. The way to compose the difficulty was to buy out Hum-phreys and Hubbell 'and the state, and since it was uncertain •whether the title was in one party or the other, to take all the title both could confer. This was sought to be accomplished by the act of 1878, and we think was accomplished. If the state thereby also parted with its title to the other part of the street not claimed by Humphreys and Hubbell, it was because it did not choose to «except or reserve it

Ho reason is perceived why the statute should not apply which provides that all the estate or interest of the grantor shall pass by "the grant, unless the intent to pass a less estate shall appear by ■express terms, or be necessarily implied in the terms of the grant 1 R S., 748, § 1.

The judgment should be affirmed, with costs.

All concur, except Bradley, J., not voting.