text:
    MILES B. RIGGS, as Administrator, etc., of IRA RIGGS, Deceased, Respondent, v. THE AMERICAN TRACT SOCIETY, Appellant.

      Allegation of want of capacity to contract, because of unsoundmess of mind, — when sufficient —necessary parties to an action to recover money paid.

    The complaint herein alleged that plaintiff’s intestate was, for upwards of fifteen years next preceding his death of unsound mind, and for that cause legally incapable of making the dispositions of his property thereinafter set forth; that shortly before-his death he transferred to the defendant several sums of money,, amounting to §4,000, upon the agreement that the defendant should pay interest thereon, every six or three months, to the intestate during his life, and thereafter interest on the whole or a part of the said moneys, to either his. executor or administrator, for the benefit of his wife, or directly to his wife, and to his sister, during their respective lives; that interest was paid to the-intestate during his life; that the sister died shortly after the intestate, without having received any interest, and that none had been paid to the plaintiff, the administrator; that the plaintiff had, with the written consent of the widow, before the commencement of this action, tendered to the defendant a release of all liability under said agreement, together with the said written consent of the. widow, and demanded a return of the money which had been refused. The: plaintiff sought to recover the §4,000, with interest from the time of demand..
    Upon a demurrer to the complaint, held, that the allegation as to the incapacity of the intestate to enter into the contract was one of fact and not of law, and was sufficient.

      That as the interest was payable either to the plaintiff, or to the widow, and as her offer to release the defendant had been rejected, she was a necessary party to the action.
    As to when a court of equity will set asid e a contract made by one not wholly mm compos mentis, though no committee has been appointed, and though no inquisition has interdicted an interference with his property, considered.
    Appeal from an order of the Wayne Special Term overruling a demurrer to the complaint, and from the judgment entered upon said order. The demurrer was interposed on the grounds : 1st. That there was a defect of parties defendant, in the omission of the widow 'of the intestate, and also in the omission of the personal representatives or next of kin of his sister, deceased, and, 2d. That, the complaint did not state facts sufficient to constitute a cause of action. -

      Austin Abbott and Howard Payson Wilds, and Edward H. Avery, of counsel for the appellant.
    The widow is a necessary party. (Nevius v. Dunlap, 33 N. Y., 676; Penman v. Slocim, 41 id., 53; Gen. Mut. Ins. Co. v. Benson, 5 Duer, 168; Cuculluv. Walker, 16 La Ann., 198; Dusenbury v. Artis, 1 Duv. [Ky.], 30.) The action is one for money had and received, and the plaintiff fails to satisfy the well-settled rule that he must show an equitable right in good conscience and natural justice. (Buel v. Boughton, 2 Den., 91; 1 Chitt. PI., 368; Peters v. Gooch, 4 Blaekf. [Ind.], 515.) The transaction being not void, but voidable only, was binding on the defendants. [Allen v. Berry hill, 27 Iowa, 534; S. 01, 1 Am. R., 309; Allis v. Billings, 6 Mete., 415; Carrier v. Sears, 4 Allen, 336; Howe v. Howe, 99 Mass., 98.) Prom the title of the defendants, “ The American Tract Society,” the court may take notice of its being a charity. [Blanchard’s Gunstock Factory v. Warner, 1 Blatchf., 258, 271, 277; Dorsey Harvester Bake Co. v. Marsh, 6 Fish. Pat. Cas., 393; Ould v. Washington Hospital, 95 U. S., 303; 2 Perry on Trusts, §§ 701, 705.) To avoid a transaction inter vivos, on the ground of insanity, the party impeaching it must show either idiocy or lunacy, or an inquisition interdicting the transaction on the ground that the person had been judicially found of unsound mind within the meaning of the statutes of lunacy. [Jackson v. King, 4 Cow., 207; Person v.
      Warren, 14 Barb., 494; Osterhout v. Shoemaker, 3 Den., 37 n.) Apart from the question of incapacity, and in the absence of undue influence or fraud, there can be no question of the validity of such .a contract. [Stanton v. Miller, 1 Sup. Ct. [T. & C.], 23; 58 N. Y., 192; lie Cornwall, 9 Blatehf., 114; Spalding v. Hollenbeck, 30 Bari)., 292; 35 N. Y., 204; 39 Barb., 79.) The complaint is fatally defective. A person who is merely “of unsound mind ” is not necessarily, nor even presumptively, incapable of making such a disposition of his property. In the present state of the law of insanity, “ unsoundness of mind” isatho most indefinite term known to the law for indicating mental deficiencies. -(Browne’s Medical Jurisprudence of Insanity, § 57; Blanchard' ~r. Nestle, 3 Den., 41; Searle v. Galbraith, 73 111., 272; Kendall v. May, 10 Allen [Mass.], 59, 64; Hall yr. Unger, "2 Abb. [IT. S.] Ciro. Ct. R., 512; Dennett v. Dennett, 44 N. II., 531; Cakes Case, 8 Law Rep., 122 [Shaw, Ch. J.]; .Hindman v. Richie, Brightly, 143; Article on Confinement of Insane, 3 Am. Law Rev., 193, January, 1869; Brushe’s Case, 3 Abb. [N. C.], 325; Ayers' Case, id., 218; Spittle v. Walton, L. R., 11 Eq., 420; Kendall v. May, 10 Allen [Mass.], 59; Cartwright v. Cartwright, 1 Phill., 90; Matter of Barker, 2 Johns. Ch., 237; Breed v. Pratt, - 18 Pick., 115, and cases ■cited; Lewis v. Jones, 50 Barb., 645, and cases cited; Matter ■of Gilbert, 3 Abb. [N.C.], 222; Ddafield v. Parish, 25 N. Y., 9, :27, 29 [overruling Stewart v. Lispenard, 26 Wend., 225]; Van Guysling v. Van Kuren, 35 N. Y., 70; Banks v. Goodfellow, L. R., 5 [Q. B.], 549; Persons. Warren, 14 Barb., 495, middle of page; Anon. Z. v. X., 2 Kay & J., 441, and cases cited; Story ■ on Partn., §§ 292-297; People v. Montgomery, 13 Abb. Pr. ;[N. S.], 207, and cases cited; People v. Flanagan, 52 N. Y., 467; People ex rel. Norton v. N. Y. Hospital, 3 Abb. [N. C.] 229, ??..]; .Holcomb v. Holcomb, 28 Conn., 177; Regina v. Hill, 5 Eng. L. & Eq., 547; S. C., 5; Cox. Cr. Cas., 2592; Den. C. C., 254.) The .averment “ of unsoimd mind” is not helped by the legal conclusion added by the pleader, “ and for that cause legally incapable of making the dispositions of his property to the defendant, which are hereinafter set forth.” This is a mere legal' conclusion, ..and does not avail. [People ex rel. Purdy v. Highway Com

      missioners, 54 N. Y., 276; City of Buffalo v. Holloway, 7 id., 493; Butler v. Fieie, 44 Barb., 166 ; Simmons v. Fairchild, 42 id., 404; Commercial Bank of Rochester v. C%y of Rochester, 41 id., 341; Hofheimer v. Campbell, 59 N. Y., 274; Deshonv. Merchants' Bank, 8 Bosw., 461.) It is well settled, in this country as1, in England, that the contracts of an insane person (in the absence, of fraud, etc.) are not void, but at most only voidable. (Ingraham. v. Baldwin, 9 N. Y., 45; 12 Barb., 9; Loomis v. Spencer, 2 Paige,. 158; Matter of Beckwith, 3 Hun, 443; Fitzhugh v. Wilcox, 12 Barb., 237; Person v. Warren, 14 id., 488; Canfield v. Fairbanks, 63 id., 461; Beavan v. McDonnell, 9 Exch., 309; Beals v. $ee, 10 Barr., 60; Hiiis v. Billings, 6 Mete., 415; Carrier v. Sears, 4 Allen, 336; Howe v. Howe, 99 Mass., 98; ALiiea v. Berryhill, 27 Iowa, 534; N. (7., 1 Am. Eep., 309; Hunt v. Weir, 4 Dana, 348; Baton v. Baton, 8 Yroom [N. J.], 108; /S'. C., 18' Am. B.; Carr v. Holiday, 5 Ired. Eq., 167; 1 Story omContracts, § 82 [5th ed.]; § -42 [4th ed.]; Addison on Contracts, 140' [Banks’ ed.]; § 192, vol. 1, 192 [Morgan’s ed.]). And equity will not interiore to avoid an executed contract, where it was. made in good faith, without knowledge of the incapacity, and the. lunatic has had the benefit of it. (Loomis v. Spencer, 2 Paige, 158; Price v. Berrington, 7 Eng. L. & Eq., 254; S. C., 15 Jur.,, 999; 3 Mac. & G-., 486; Sprague v. Duel, Clarke Ch., 90; 11 Paige, 480; Neil y. Morley, 9 Yes., 478, followed in Loomis v. Spencer, 2 Paige, 153; Person v. Warren, 14 Barb., 488.) Contracts with an insane person, wholly executed, or so far executed, that the parties cannot be placed in statu quo, cannot be avoided either at law or in equity upon the mere ground of insanity. (1 Story’s Eq. Jur., § 227; Cruise v. Christopher, 5 Dana, 182 n.; Molton v. Camroux, 2 Exch., 487; 4 Exch., 17; S. C., 18 Law Journ.; Exch., 356 [1848]; Blliot v. Lice, 7 De G. M. & G., 475-487; State Bank v. McCoy, 19 Smith [Penn.], 204; Nace v. Boyer, 6 Casey, 99; Dicken v. Johnson, 7 Geo., 491; Beals v. See, 10 Barr, 56; Lancaster County National Bank v. Moore, 78 Penn., 412; Matter of Beckwith, 3 Ilun, 445; Hicks v. Marshall, 8 id., 327; Young v. Stevens, 48 N. H., 133; Mussel-man v. Cravens, 47 Ind., 1.) It is incumbent on the party who seeks to avoid a transaction by an insane person to allege and prove that the pther party hail knowledge of the insanity. ( Young v. Stevens, 48 N. H., 133; Harrison v. Richardson, 1 Moody & Rob., 504; Ingraham v. Baldwin, 9 N. Y., 45 ; affirming 12 Rarb., 9.)

      Comstock & Bennett, for the respondent.
    The gifts, or transfers of money, made by the plaintiff’s intestate to the defendant, as •stated in the complaint, were void, and not merely voidable. (Van Dusen y. Sweet, 51 N. Y., 378; Farley v. Barker, 6 Oregon, 105; S. O., 25 Am. R., 504; Dexter v. Hall, 15 Wall., ■9; ThompsonY. Leach, 3 Salic., 300; Estate of Sarah DeSilver, 5 Raw!., 111; Yates v. Boiven, 1 Dow & Clark, 380; 1 Sugden ■on Powers, 179; Fitzhugh v. Wilcox, 12 Barb., 235; Pearl v. McDcnoell, 3 J. J. Marsh, 658; White v. Maxwell, 5 Pick., 217.) If the several transfers were voidable, and not void, still the plaintiff, as administrator, has a right to recover; for he has a right to avoid the said several transfers, and to recover back the money for the benefit of the next of kin and creditors of the intestate. (Gibson v. Soper, 6 Gray, 279; Nichols v. Thomas, 53 Ind., 42; Ilovey v. Hobson, 53 Maine, 451; Seaver v. Phelps, 11 Pick., 304; Rice v. Peet, 15 Johns. R., 503; Henry v. Fine, 23 Ark., •417; Van Dusen v. Sweet, 51 N. Y., 384.) The allegations in the complaint are- sufficient to show that the intestate was insane .at the time of the alleged transfers of the several sums of money mentioned in the complaint by him to the defendant, and that his insanity was of such a character as to render him legally incapable of making those transfers. Ex parte Bransley, 3 Atlc., 167;' 1 R. S., 719, § 10; 2 ich, 541, § 1; 2 id., 55, 57, § 1; 2 id., 60, § 21; Stewart’s Executor v. Lispenard, 26 Wend., 297; Blanchard v. Nestle, 3 Deuio, 41.)
   Smith, J.:

The complaint alleges that the plaintiff’s intestate, Ira Riggs, was, for upwards of fifteen years next preceding his death, of unsound mind, and for that cause legally iivapíible of making the dispositions of his property .to the defendant which are therein-after set forth ; that shortly prior to his death he, in form, transferred to the defendant several sums of money, amounting in all to the sum of $4,000, which the defendant received and invested, or used in and about its business and for its benefit; that said moneys were so transferred and received under an arrangement, by which the intestate, being of unsound mind, as aforesaid,, agreed to give and did give said moneys to defendant, and defendant agreed to give and did give to the intestate certain assurances, in writing obligating the defendant to pay the interest on said money, every six or every three months, to the intestate during-his life, and thereafter, on the whole or a part of said money, to either the executor or administrator of the intestate, for the benefit of his wife, being his widow, or directly to his wife and to his sister, Marilda, for their benefit during their lives respectively. The complaint also alleges that the interest on said money ivas paid by the defendant to the intestate during his life; that his., sister, Marilda, died shortly after the intestate’s death, without, having received any of such interest; and that none of said interest has been paid to the plaintiff. The complaint further-alleges that soon after the plaintiff was appointed administrator-lie found said written assurances among the papers of the intestate, and thereupon he obtained from the surviving wife of the intestate her written consent that the plaintiff might surrender said assurances to the defendant, and he afterwards, and before the-commencement of this action, offered to surrender to the defendant the said consent of the widow, acknowledged by her, together with the said assurances and all claims of the plaintiff or of the widow based upon them, and demanded a return of said sums of money ; all of which the defendant refused. The relief demanded is a judgment for said $4,000, with interest from the time of said, demand.

The demurrer is upon the grounds : 1. That there is a defect. of parties defendant, in the omission of the widow of the intestate, and also in the omission of the personal representatives or-next of kin of his said sister, deceased; and 2. That the complaint does not state facts sufficient to constitute a cause of action.

Obviously, the cause of action intended to be stated by the-pleader is for money had and received by the defendant from the intestate under circumstances -detailed in the complaint.. which, it is claimed, equitably entitle the plaintiff, as the legal representative of the intestate, to recover it back. The basis of the claim is the alleged mental' unsoundness of the intestate. It is strenuously, contended by the counsel of the appellant, that the complaint is fatally defective in not alleging the character of the unsoundness and the connection between the alleged unsoundness and the transaction sought to be avoided. The argument addressed to us is, that in the present state of the law of insanity, the term “of unsound mind,” is no-longer a synonym for non conypos mentis; that it fails to define any particular kind or degree of mental deficiency, and that it does not, necessarily or presumptively, indicate a want of capacity to enter into such a transaction as is set out in the complaint. A concession of the argument does not lead necessarily to the conclusion that th'i- complaint is defective. The averment is, in substance, that tli t alleged unsoundness of mind of the intestate was of such a character as to render him incapable of making the alleged transfer of money to the defendant. This statement of the quality of the alleged mental unsoundness, and of its bearing upon the tri nsaction sought to be avoided, is explicit and concise, and no far.lt can be found with it as matter of pleading, unless it is to be regarded as the mere stateiuent of a conclusion of law. It is true, as a general rule, that mere legal conclusions are not to be pleaded. But it is often difficult to discriminate between what are facts, which are required to be pleaded, and what are legal conclusions which cannot bo pleaded, or rather to state the pure facts without any admixture of elements of law. Indeed, as was said by Mr. Justice Selden in Dows v. Hotchkiss (10 Leg. Obs., 281). “No declaration or complaint was ever so drawn. If a plaintiff states his title to, or ownership of, property in the usual form, is this the statement of a pure fact ? Clearly not. It comes much nearer being the statement of a mere matter of law — that is of a legal right depending on facts not stated. Again, the common averment that the defendant executed or entered into a contract is liable to the same criticism ; or even that he signed, sealed and delivered it. The delivery may have been actual, or it may have been constructive, merely. What amounts to a delivery is a question of law. It is obvious, therefore, that some latitude of interpretation is to be given to the term facts, when used in a rule of pleading. It must, of necessity, embrace a class of mixed fact's into which more or less of legal inference is admitted. A contrary construction would tend to intolerable prolixity.’? These remarks of tho learned judge seem applicable to the present case, If the plaintiff’s intestate was in fact, so far unsound in mind, as to be incapable of making the transfer set forth, although not Avholly devoid of understanding, it is difficult to see how the fact could have been stated differently, except by detailing all the circumstances relied upon to prove the alleged partial insanity. But that mode of pleading Avould be unendurable by reason of its prolixity, and it would violate another cardinal rule, to Avit: that the issuable facts, and not the evidence of them, must be pleaded.

But the couusel for the appellant contends that to establish the invalidity of a deed or other contract, inter vivos, made by a person for whom a committee has not been appointed, an entire loss of understanding must be shown, or an inquisition interdicting all interference with property. Such was formerly the rule at law. (Jackson v. King, 4 Cow., 207; Blanchard v. Nestle, 3 Den., 37, and authorities cited in note a.) But courts of equity have long recognized the principle that thecontract of a person not having sufficient mental capacity to enter into such contract, although not wholly non compos, may be avoided under certain circumstances, provided it can be done Avithout injustice to the opposite contracting party. But when the party contracting with the lunatic acted in good faith, without knoAvledge of, or reason to suspect, Iris mental incapacity, and the party cannot be put in statu quo, a court of equity will not interfere to set aside the contract. Under our present system, in Avhich the rules of law and of equity are administered in the same forum, a complaint presenting a case for either legal dr equitable relief is not subject to the objection that it does not state facts sufficient to constitute a cause of action. It is true the complaint in this case does not impute to the defendant bad faith,.or a knowledge of the mental unsoundness of tho intestate, but for aught that appears, the defendant may bo put in statu quo, if the agreement is avoided. In other words, so far as the complaint shows, the defendant, on refunding the money Received from the intestate, will be in as good a condition as it was in -when the agreement was made. If, by reason of any fact not appearing in the complaint, the defendant can not be restored to its former condition, such fact is matter of defence to be set up by answer. If these views are correct, the question whether the plaintiff can recover in an ordinary action at laAV for money had and received is not very material. Upon the facts stated in the complaint the court may exercise its equitable jurisdiction, by avoiding the contract, and directing the defendant to refund the money received from the intestate, or so much thereof as remains unrefunded, after crediting the defeu dent with all it had paid under the agreement. Under our present system of pleading, relief is to be given consistent with the facts stated, although it be not the relief specifically demanded.

But Avhether this action be regarded as one for equitable or legal relief, it seems to us that the widow of the intestate is a necessary party. Upon the facts pleaded, Ave regard the agreement not as absolutely void, but voidable, upon proper terms and at the suit of the proper parties. By the terms of the agreement as set out in the complaint, the defendant, after the death of the intestate, Avas to pay the interest money to his administrator for the benefit of his Avidow, or directly to his widoAV and sister for their benefit during their respective lives. Had the money been made payable to the administrator exclusively for the benefit of the widow, the administrator alone might have maintained the action without joining the beneficiary. (Code of Civ. Proc., § 449.) But it is payable in the alternative to the administrator for the benefit of the widoAV, or to the Widow directly, for her use tluring life. The object of this provision is not entirely clear, but obviously it gives an option either to the widow to demand and receive the money without the intervention of the administrator, or to the society to pay directly to her if it chooses. In either case, the Avidow has a direct interest in the money due under the agreement, and it is difficult to see Iioav the agreement can be avoided, or the principal money ordered to be restored, in an action to which she is not a party. She might properly join with the present plaintiff in prosecuting the action, but if she should refuse to do so, she should then be made a defendant. The fact that she consented that the written assurance of the defendant, and her claim based thereon, might be surrendered, is no answer to the demurrer. The offer of surrender not having; been accepted, her interest is the same as if the offer had not been made. Her consent to a surrender was not a release or an assignment of her right. We think she is a, necessary party.

The point that the representatives or next of kin of the sister' should have been made parties, has not been argued by the: appollants’s counsel. It is enough to say that the complaint alleges that she died “ shortly after ” the death of the intestate, and it does not appear that any interest money accruing after his-death, had matured before she died. As her right to the money ceased upon her death, her representatives or next of kin have no-interest in the subject-matter of the action.

Upon the gnjund above stated, the judgment and order appealed, from should be reversed, and judgment ordered for the defendant on the demurrer, with leave to the plaintiff to amend the-complaint within twenty days, on payment of the costs of the-demurrer and appeal.

Talcott, P. J., and Hardin, J., concurred.

So ordered.


source: Caselaw Access Project

author: Smith, J. :

license: Public Domain

text:
    LEVI NICHOLS, Respondent, v. GEORGE DREW, Appellant, and others.

      Joinder of causes of action — each must affect all the parties — Assignment of a, debt for less than its face, procured by the fraud of the debtor — right of the assignor (the creditor) to set aside such assignment, credit on the debt the amount paid for such assignment and recover the balance of the debt, all in the: same action.

    Causes of action on different contracts cannot be joined in the same action, unless all parties are affected by each.

      Semble, that where a creditor has by false and fraudulent representations as to the pecuniary responsibility of his debtor, made to him by a third person, been induced to assign his claim to such third person for less than its face, #nd it appears that such representations were made and such assignment procured by a fraudulent contrivance between the assignee and the debtor, the money paid upon the same being furnished by the latter, the creditor may treat the money paid for the assignment as a part payment upon the debt, and without returning it seek in the same action to set aside the fraudulent assignment and. recover the balance of the debt.
    Appeal from judgment entered; upon an order of the Erie. Special Term, overruling a demurrer to the complaint.
    The action is against the appellant Drew, and three other' defendants, Young, McLane and Churchill. The complaint contains two counts. The first count alleges that the defendants Drew, Young and McLane, in 1873, jointly became indebted to the plaintiff, on contract, in the sum of $1,218.12, no part of which has been paid, except as thereinafter stated ; that the defendants nominally failed, and that .afterwards Drew and Churchill fraudulently contrived together to cheat and defraud, the plaintiff out of said demand ; that in carrying out such, fraudulent purpose, Churchill proposed to pay twenty-five cents, on the dollar for an assignment of said claim, and with the intent, of inducing the plaintiff to make such assignment for twenty-five cents on the dollar falsely and fraudulently made certain false and material representations particularly set forth in the complaint, some of which related to the pecuniary means of Drew, knowing them to be false, and thereby induced the plaintiff to assign said claim to Churchill for twenty-five cents on the. dollar of its face, paid to him by Churchill; that the money-paid, in fact, belonged to Drew, or was advanced by Churchill, for his benefit, and the claim so assigned was afterwards given up by Churchill to Drew, or held by him for Drew’s benefit. The count concludes with an allegation that, by reason of the premises, the plaintiff has sustained damages to the amount of' said claim, with interest, less the amount paid by Churchill.
    The second count alleges that it .repeats all the allegations, contained in the first count, and further alleges, that before said claim was assigned to Churchill, the defendants, Drew and Young,, represented that there was money in the hands of R. & P. D.. K. Sanders, a law firm in Buffalo, to the amount of $252, and verbally assigned said money to the plaintiff' to apply on his said demand, and directed and requested the plaintiff to sue said firm, for the money ; that, in pursuance thereof, the plaintiff brought, suit against Saunders and was defeated and compelled to pay costs in said action to the amount of $150 ; that he never recovered any part of said money, but whatever moneys’ were in tho hands of said Saunders were paid but by them in pursuance of the direction of Drew, McLane and Young, or one of them; and that the money so represented to be in the hands of said Saunders was not assigned to Churchill, but was reserved to the plaintiff. The relief demanded is, that the plaintiff recover from Drew, Young and McLane, the sum of $1,218.12, with interest, less the amount paid by Churchill; that he also recover as damages, the costs and expenses incurred by him in the action against Saunders ; that the assignment to Churchill be adjudged fraudulent and void; and that Churchill and Drew for their fraud and deceit, be adjudged to pay the plaintiff $2,000 damages ; and general relief is also prayed for.

      A. P. Laning (C. F. Tabor, Attorney), for the appellant.

      Thos. Coslett (Coslett & Hatch, Attorneys), for the respondent.
   Smith, J. :

The defendant Drew alone demurs. The question is, therefore, whether the complaint is good as against him, in respect to the particulars specified in the demurrer. The grounds of his demurrer are : (1.) That the complaint does not state facts ¿sufficient to constitute a cause of action; (2.) That the second count does not state facts sufficient .to constitute a cause of action; (3.) That several causes of action have been improperly united ; and (4). That tho second cause of action does not affect the defendant Churchill. The only ground which requires comment is the claim that several causes of action have been improperly united. The most favorable view for the plaintiff that can be taken of the first count is, that upon the facts alleged therein the plaintiff is entitled to have the assignment held l>v Churchill set aside for fraud, and to recover of the other defendants tho amount of his claim against them remaining unpaid. And as the count alleges, that the money paid for the assignment, in fact, belonged to Drew, or was paid for his benefit, it may be that the plaintiff is entitled to treat it as a part payment of the debt and is not required to restore it as a, condition of setting aside the assignment. There is authority for saying, also, that as against Drew alone, the plaintiff may, in the same count, seek to set aside the fraudulent assignment and recover the balance of the- debt. (Phillips v. Gorham, 17 N. Y., 270 ; The New York Ice Company v. The North Western Insurance Company of Oswego, 23 id., 357.) It may also be assumed that the real cause of action set out in the first count is for the recovery of the amount unpaid upon the contract, and that the remainder of the count is framed with a view of setting aside an impediment in the way of obtaining that relief. If this view of the first count is correct, then as the second count obviously sets out. a cause of action against Drew on contract, the two counts might well stand together in the same complaint, but for the circumstance that Drew is sought to be charged in the first count as a joint contractor with the defendants Young and McLane, and in the second count as a joint contractor with Young alone. The two contracts, not being made by the same parties, cannot be sued on in one action. On this ground the demurrer is well taken.

The judgment and order of the Special Term should be reversed, and judgment ordered for the defendant on the demurrer, with, leave to, the plaintiff to amend in twenty days, on payment of the costs of the appeal and of the demurrer.

Talcott, P. J. and Hardin, J., concurred.

Ordered accordingly.


author: •Smith, J.:

text:
    ZARA W. JOSLYN and others, as Railroad Commisioners of the Town of Mt. Morris, Plaintiffs, v. BENJAMIN F. DOW and others, Defendants.

      Haib'oad commissioners — have no powers except such as are conferred by statute — when agreement void as ultra vires — when a company not estopped from showing its contract to be invalid — guaranty falls with the principal contract.

    The plaintiffs having been appointed commissioners, in proceedings instituted to enable a town to issue its bonds in exchange for the stock of a railroad company, entered into an agreement with the company by which it was provided, that the proceeds of the bonds should be used in purchasing ties, which should be the property of the commissioners till laid in a completed railroad, and that a certain portion of the road should be completed by a specified date. The company having failed to fulfill the agreement, this action was brought against the defendant, who had guaranteed the due performance thereof.

      .Held, that the plaintiffs had no power to enter into any agreement not expressly authorized by the statute under which they wore appointed.
    That the provisions in question being- unauthorized thereby, the agreement was void, as ultra vires.

    That the company being entitled to receive the bonds -without entering into such an agreement, and having issued their stock which was the consideration for said bonds, were not estopped from insisting on the invalidity of the contract. "That the principal agreement being void, the guaranty fell with it.
    Motion by plaintiffs for a new trial, on exceptions taken at the Livingston Circuit, and ordered to be heard at the General Term, in the first instance.

      Jno. A. Vanderlip, for the plaintiffs.

      L. AT. Bangs, for the defendant Hamilton.

      Geo. M. Osgoodby, for the other defendant.'
   •Smith, J.:

The action is on a guaranty, executed by the defendants, for the performance of a contract entered into between the Rochester, Nunda and Pennsylvania Railroad Company and the plaintiffs, as .railroad commissioners of the town of Mt. Morris, for the delivery of the bonds of said town to said company to aid in the construction of their road. By the terms of the agreement, which was dated July 30, 1872, the plaintiffs agreed to deliver to -the railroad company $30,000 in the bonds of said town, on or before the 31st July, 1872, and the company agreed to use $10,000 of bonds, or their proceeds, in purchasing and paying for, in full, 30,000 railroad ties, and to use them in constructing said railroad from Nunda to Mt. Morris ; the title to said ties and the possession of them to be vested in the plaintiffs until laid in the track of said railroad, and the iron placed thereon in a railroad completed and in running order. Twenty thousand dollars of said bonds were to be, used by the company in constructing ten miles of said railroad between Nunda and Mt. Morris. The company further agreed, within five months from the date of the agreement, to pay for and secure the right of way for said ten miles of railroad, and do the labor and furnish the material necessary to complete said ten miles of road without further cost or expense to the town of Mt. Morris. Also, to indemnify said toAvn against all lions and claims of contractors or laborers upon said railroad or materials. The sum of $30,000 Avas fixed as liquidated damages.

Subsequently, the parties extended the time for completing said ten miles of road to July 31, 1873, with the consent of the guarantors.

The breaches specified in the complaint were that the company did not, by the 31st July, 1873, pay for and secure the right of way of said ton miles of railroad, and did not perform all the labor and furnish all the materials needed to complete said ten miles of road.

The complaint demands $30,000 as liquidated damages.

The answer puts in issue the alleged breaches.

The plaintiffs were appointed commisffoners of the town of Mt. Morris, by an order of the county judge of Livingston, on the 13th December, 1870, in proceedings instituted by a petition of a majority of the tax-payers of said toAvn, praying that said toAvn bo authorized to issue its bonds to the amount of $75,000, and invest the same or the proceeds thereof in the stocof said railroad compnay.

Before the making of the agreement above referred to, $45,000 of the bonds authorized in said proceedings had been issued by the plaintiffs and exchanged for stock of said company of the same amount. The $30,000 of bonds provided for by said agreement were the remainder of the bonds authorized in said proceedings.

We think tne principal agreement was ultra vires, on the part of the plaintiffs. As commissioners, they were not officers of the town, but were its mere agents, with power strictly limited by the statutes which authorized their appointment. By chapter 507 of the Laws of 1870, they had power to enter into an agreement with the railroad company, limiting and defining the time when, and the proportions in which, the bonds of the town, or their proceeds, should be delivered to the company, and the place or places where, and the purposes for which, such bonds or their proceeds should bo applied or used. And that was the extent and limit of their power in that respect. The amendment of 1871 (chap. 925, § 5) authorizes the Supreme Court to determine upon what terms and conditions the bonds therein referred to shall be delivered to a railroad corporation, in case the commissioners and the railroad corporation cannot agree, or the commissioners refuse to make any agreement, but it adds nothing to. the power of the commissioners.

So far as the agreement wont beyond fixing the time when the bonds of the town should be delivered, and the place where, and the purposes for which, they or their proceeds should be used, it exceeded the powers of the commissioners. The ’breaches assigned in the complaint, and attempted to be proved on the trial, related to matters ultra vires. The provisions that the company should use the bonds in purchasing ties ; that the ties should be the property of the commissioners till laid in a complete railroad ; that a certain portion of the road should be completed by a specified day, without reference to whether its cost would exceed the amount of the bonds agreed to be delivered, were outside of the powers of the commissioners.

It is contended by the counsel for the plaintiffs that, as they have fully executed the agreement, the defendants are estopped from setting up that it is ultra vires. All that the plaintiffs have clone, by way of executing the agreement, is to deliver the bonds of the town to the railroad company. But they have received a full equivalent in the stock of the company for the same amount. The stipulations which they now allege were broken by the company, were not only ultra vires, but they were-without consideration, inasmuch as it was the duty of the commissioners to invest the bonds or their proceeds in the stock, and they had no right to insist upon any additional compensation for such bonds. They having received full consideration for all they have parted with, it cannot be said that they, or their principal, the town of Mt. Morris, will suffer injustice from the application of the doctrine of ultra vires. The case is distinguishable from Bissell v. Michigan Southern and Northern Indiana R. R. Co. (22 N. Y., 258) ; Whitney Arms Co. v. Barlow (63 id., 62), and others of the same class cited by the plaintiff’s counsel.

The principal contract being void, the guaranty falls with it. (McGregor v. The Official Managers of the Deal and Dover R. W. Co., 16 E. L. & Eq. R., 180.)

As these views lead to a denial of the motion for a new trial, it is unnecessary to consider any of the other questions which were discussed on the argument.

Now trial denied, and judgment ordered for defendants on the nonsuit.

Talcott, P. J., and Hardin, J., concurred.

New trial denied, and judgment ordered for defendants on the. nonsuit.


author: Smith, J.:

text:
    JOSEPH MEDBURY AND EDWARD L. THOMAS, Respondents, v. THE ROCHESTER FREAR STONE COMPANY, Appellant, Impleaded, etc.

      Action to dissolve a corporation on the grown,d of its insolvency — right of a stoctcholder to maintain such an action — appointment of a receive!' pendente lite.

    The complaint alleged that the defendant was a manufacturing corporation, organized under the laws of this State; that the plaintiff's were two of the trustees thereof and stockholders therein; that three of the defendants were the other trustees; that the corporation had been insolvent for more than a year prior to the commencement of this action; that the plaintiffs were pecuniarily responsible; that the other trustees were not so; that such other trustees insisted upon continuing the business of the company, though judgments * had been recovered against it and executions issued thereon returned unsatisfied ; and that an action had been commenced ag-ainst one of the plaintiffs to chai ge him pex-sonally with the debts of the said coi'poration.
    It pi'ayed that the coi'pox'ation might be dissolved, and asked for a px'eliminaxy injunction and the appointment of a receiver pendente Vite.

      JSeld, that the action was maintainable under 2 Revised Statutes, 463, section 38, and that a receiver should be appointed.
    Appeal from an order of the Monroe Special Term, appoint-;g a receiver of the property of the appellant.

      J. S. Garlock, for the appellant.
    Plaintiffs are not entitled to maintain this action. It cau only bo brought by the attorney-general. (People v. Erie Pailway Co., 36 How., 129 ; Howe v. Deuel, 43 Barb., 504 ; Bangs v. McIntosh, 23 id., 591 ; 1 Kern., 243, 252; Allen v. JST. J. 8. P. P. Co., 49 How. Pr., 14; Greaves v. George, 69 N. Y., 154.) The corporation is not insolvent in fact, or within the meaning of the term as defined by the ■courts. (Ourtis et al. v. Leavitt, 17 N. Y., 109, 139, 198; Mann v. Pentz, 3 id., op. 419.)

      J. P. Varnum, for the respondent.
    The action is properly brought by plaintiffs, who are .both trustees and stockholders. (1 R. S. [Edm. ed.], 465, § 38; 6 Wait’s Pr., 270; Mídeles v. Pochester Oity B’/c, 11 Paige, 118; Gonroy v. Gray, 4 How. Pr., 165; Gonroy v. Gray, approved, 12 B., 27.) The court has power to appoint a receiver during the pendency of this action. (Mickles v. Rochester City D’7c, 11 Paige, 118; Oonro v. Gray et al., 4 How. Pr., 165; Galwey v. U S. Steam Sugar Ref’ g Co., 36 Barb., 256; Howe v. Deuel, 43 Barb., 504; Old. Code, ■% 244.)
   Smith, J.:

The complaint alleges that the defendant, the Rochester Frcar .'Stone Company, is a manufacturing corporation organized under the laws of this State; that the plaintiffs are two of its trustees or directors, and also stockholders therein; that three of the defendants are the other trustees; that the corporation has been insolvent for more than a year prior to the commencement of the action; that the plaintiffs are pecuniarily responsible, but the other trustees are irresponsible, but insist upon continuing the business of the company; and that judgments have been recovered against the company, and an execution on one of 'them has been returned unsatisfied, and an action has been commenced by one creditor against the plaintiff Mcdberry to charge him personally with a debt of the company. The complaint asks that the company may be dissolved, the trustees required to account, that the company be enjoined from further carrying on its business and incurring obligations, and that a receiver be appointed. It also asks for a preliminary injunction and the appointment’ ■of a receiver pendente lite.

The motion for a receiver was opposed upon affidavits denying the alleged insolvency. On reading the papers we are satisfied that the fact of insolvency for more than one year before suit is established.

The objection that the plaintiffs cannot maintain the action is unfounded. Section 38 of the article of the Revised Statutes, relating to proceedings against corporations in equity, provides that whenever any incorporated company shall have remained insolvent for one whole year, it shall be deemed to have surrendered its franchise, and shall be adjudged to be dissolved. (2 R. S., 463, § 38.) Under the provisions of that section, a creditor or a stockholder may proceed to have the dissolution, of the insolvent company 'judicially declared and to wind up its affairs. (Ward v. Sea Insurance Co., 7 Paige, 294; Mickles v. The Rochester City Bank, 11 id., 118.)

That the court has power in such a case to appoint a receiver pendente lite, to preserve the property of the company, is not questioned.

The order of the Special Term should be affirmed, with ten dollars costs and disbursements.

Talcott, P. J. and Hardin, «T., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    WILLIAM MANNING, Respondent, v. KATHRINE M. EVANS, Appellant.

      Supplementary proceedings — title to real estate passes to receiver appointed in, without a transfer from the debtor ■— beneficial interest under a trust cannot be reached in.

    Defendant’s father died, leaving a will by which he devised to his trustees, among other property, a house and lot in Rochester, in trust to give to the defendant “the free and unrestrained use, occupation and possession thereof during the term of her natural life only,” and on her death to convey it to her-children in fee. He also directed the trustees to pay to his widow a specified, amount out of the income to arise from certain personal securities, and to-divide any surplus of such income among his children, and on the widow’s, death, to pay each daughter then living the income of a certain share of the estate during her life. The widow was still living, and in possession of the house and lot, and it was not shown that there was any surplus income to divide.
    The order appealed from required the defendant to transfer to a receiver appointed in supplementary proceedings, all her interest in said house and lot and all her right, title and interest, in possession and expectancy, of, in and to-the annual income arising from the personal property.

      Held, that so far as it required the transfer of any legal estate she might have in the real estate it was unnecessary, as all her alienable interest therein vested in the receiver on his appointment and the filing and recording of his bond and the order appointing him.
    That so far as any beneficial interest she might have in the rents and profits of the land, or the income of the personal property was concerned, only so much. thereof could he reached as was unnecessary for her support, and that only-in a direct action for that purpose.
    That the order should he reversed.
    Appeal from an order made by the special county judge of Monroe county, in supplementary proceedings, directing the defendant to assign certain specified property to a receiver.

      J. <fi Q. Van Voorhis, for the appellant.

      'O. J. McDowell, for the respondent.
   Smith, J. :

The defendant is a married woman, residing in Rochester; Her father, who resided in Canada, died in 1874, and devised the greater part of his property to trustees. Part of the property was a house and lot in Rochester. In respect to that, the trust was to give to the defendant “the free and unrestrained use, occupation and possession thereof during the term of her natural life only,” and after her death to convey the same to her children in fee. The testator left personal property also, of the value of $29,000, invested in British Securities, the income of which the trustees were directed by the will to pay to .the testator’s widow to a specified amount, and in. case there should be a surplus, to 'divide it among the testator’s children, and after the death of the widow to pay to each of the daughters then living the income of a certain share of the estate during her life. The widow is still living, and it does not appear that there is any surplus. The defendant is in possession of the house and lot in Rochester.

The order appealed from directed the defendant to execute an assignment to the receiver of her interest in said house and lot, and also “ all her right, title and interest, claim and demand whatsoever, both in law and equity, and in possession and expectancy of, in and to the annual income ” arising from the said investments.

We think the order cannot be upheld, as to the real estate. 'That being situated within the jurisdiction of the court, an assignment is unnecessary. Whatever title, estate or interest the defendant may have had in it capable of being aliened, if she had any at the time of the appointment of the receiver, became vested in the receiver, by virtue of his appointment, followed by the filing of the requisite security, and the entry and recording of the order of appointment in the proper clerk’s office, without any conveyance being executed to him by the judgment-debtor.

(Wing v. Disse, 15 Hun, 190.) If, however, she is to be regarded as taking a beneficial interest in the rents and profits merely, and not in the land itself, then, under our statutes of uses and trusts, her creditors can reach only the surplus of such rents- and profits beyond the sum that may be necessary for her support. (1 R. S., 729, § 57.) The same rule applies to the income of the personal estate. (Williams v. Thorn, 70 N. Y., 270.) But, in either case, the technical legal interest of the beneficiary in the surplus-cannot pass to a receiver in supplementary proceedings. Such surplus is not ascertainable in proceedings of that nature, but only in a suit where direct issue is made on the amount necessary forthe debtor’s support. (See Graff v. Bonnett, 31 N. Y., 9; Campbell v. Foster, 35 id., 361; Scott v. Nevius, 6 Duer, 672; Williams v. Thorn, supra.)

These views lead to a reversal of the order.

Talcott, P. J., and Hakdin, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements.


text:
    DENNIS McCARTHY, Respondent, v. HARYEY WHALEN, Appellant,

      Order laying out a highway — the commissionei' may act of his own motion — when the survey is sufficiently incorporated in the order — consent of owners ■ — what sufficient proof of — what is a sufficient woi'king of a highway to prevent ceasing to be such— Evidence.

    On January 14,1854, there was filed in the office of the town clerk of the town of Penfield an instrument in writing, bearing date January 2, 1854, signed by the sole commissioner of highways, ordering the laying out of a highway therein, “ upon the application of Samuel Strowger, and passing through the improved lands of said Strowger and others, who have consented thereto; said road commences on the five mile line at Alpheus S. Clark’s south-east corner; thence running westerly to the Drew farm, and between Ichabod Leonard Jr.’s land and William R. Thomas’ land, twenty-six rods, according to the survey thereof.” The order was recorded in the book of town records, and on the same day, and on the following successive pages of the same book, were • recorded an instrument under seal, reciting the laying out of the same highway on April 9,1858, by which the owners of the lands through which it passed released their claims for damages, and also a survey of the said highway, dated April 9, 1853, and signed by the said Strowger.

      Meld, that the surrounding circumstances sufficiently identified the survey, dated April 9, 1853, as the one referred to in the order of the commissioner, and that the statute requiring the survey to be incorporated in the order was substantially complied with.
    That the release signed by the owners sufficiently showed their consent to the laying out of the highway.
    It is not necessary to the valid laying out of a highway that there should have been a written application therefor; the commissioner may act of his own motion. *
    The west end of the road had never been opened, but the east end of it, to the distance of about three-quarters of a mile, was worked and traveled before and for several seasons after the order was made; it was crossed at different points by gates, with bars erected by the owners of adjoining lands to keep cattle from straying thereon, and not with the intent of preventing the use of the road; the gates were open in winter, and travelers were allowed to. remove them in summer for the purpose of passing through; the road had been worked under the direction’ of the public authority after it had been laid out and up to the time of the commencement of this action.

      Meld, that there was sufficient proof that the eastern portion of the road had been opened and worked, and that it did not cease to be a public highway because the western portion thereof had not been opened and worked within six years from the time it was laid out.
    The plaintiff was allowed, against defendant’s objection, to testify to declarations made to him by Samuel Strowger, his grantor, to the effect that the attempt to open the road had been abandoned, and the commissioner had refused to open it further, and that for that reason he, Strowger, had fenced it up.' Held, error.
    Appeal from a judgment in favor of the plaintiff entered on the report of a referee.
    The action was for trespass quare clausum fregit. The defendant in his answer alleged that the locus in quo was a public highway and justified as commissioner of highways. The only question litigated was as to the existence of the alleged highway.
    The action was commenced originally in a justice’s court and was discontinued there on title being pleaded.

      A. J. Willein, for the appellant.

      J. & Q. Van Voorhis, for the respondent.
   Smith, J.:

The alleged highway started in a westerly course from what is known as the “ five mile line,” in the town of Penfield, and extended by various courses a mile and 138 rods, crossing a farm owned and occupied by the plaintiff:

The referee, in his original report, aid not find whether the road was lawfully laid out, but he found certain facts bearing upon that question, which will be referred to presently. Subsequently, on being requested by the plaintiff’s counsel to find as matter of law that the road was lawfully laid out, he declined to End as requested, except as stated in his report. The report contained no finding on the point, as matter of law, but the following facts were found, to wit: On January 2, 1854, the sole commissioner of highways, in the town of Penfield, executed and subsequently filed with the town clerk of that town, an instrument, of which the following is a copy: “It is ordered and determined by the commissioner of the town of Penfield,'county of Monroe, that a highway be laid out in said town upon the application of Samuel Strowger, and passing through the improved lands of said Strowger and others who have consented thereto ; said road commences on the five mile line at Alpheus S. Clark’s south-east corner ; thence running westerly to the Drew farm, and between Iohabod Leonard Jr.’s land and William R. Thomas’ land, twenty-six rods, according to the survey thereof; said highway is to be three rods in width. In witness, etc. “ (signed) Amos Sherwood, commissioner.” That instrument was recorded in the town clerk’s office of said town on January 14, 1854, in the book of records of the highways of said town, at page 241 of said book. On the same day was recorded in the same book, on page 242, an instrument under seal, which recited the laying out of said highway on April 9, 1853, by the commissioner of highways of said town, and whereby the owners and occupants of the lands through which said highway passed, including the said Samuel Strowger, severally released all claim for damages by reason of laying out and opening said highway. On the same day another instrument was recorded in said book on page 243, signed by the said Samuel Strowger,. and purporting to be a survey made by him, dated April 9, 1853, which described a highway by courses and distances for a length of one mile and 138 rods. The referee found that the highway described in the survey is, in fact, the same highway referred to in the said order ; but he also found that no mention is made in said order of the said survey of Samuel Strowger. It appeared in evidence that the plaintiff purchased his farm, through which said road passes, of Samuel Strowger and took title thereto from him.

The statute requires that the survey shall be incorporated in the order. (1 R. S., 513, § 55.) That was not done, literally. But the order purports to accord with a survey; the survey in question is recorded at the same time with the order; and it is found that both papers describe the same highway. The presumption arising from the difference in dates is, that the survey and release were made in April, 1853, but were not acted upon by the commissioner until January, 1854, and that the commissioner, soon after deciding the matter, filed both papers with the town clerk, as it was his duty to do. (1 R. S., 518, § 83.) It is also to bo presumed, from the date of the recording, that both papers were filed at one and the same time. Furthermore, the papers, including the release, were recorded in the proper book, on. continuous pages, and so far as appears, with .nothing intervening between them. There is no evidence that the order referred to any other survey of the road in question, or that any other was ever made or recorded. These circumstances identify the survey, beyond all doubt, as the one referred to in the order, aud so, the purpose of the statute, which was to* secure a record of the route of the road, seems to have been fully answered. A mere informality should not be deemed fatal, there being a substantial compliance with the requirements of the statute. (Van Bergen v. Bradley, 36 N. Y., 316.)

It is not necessary to the valid laying out of a highway that, there should be a written application therefor. The commissioner may act of his own motion. (1 R. S., 513, § 55; Gould v. Glass, 19 Barb., 179; The People v. The Supervisors of Richmond County, 20 N. Y., 252.) The recital in the order that the highway was laid out upon the application of Strowger is proof of the fact recited, or it is not. If it proves the fact, the application is to bo presumed to have been in the form prescribed by law, nothing appearing to the contrary ; if it does not prove the fact, then, for aught that appears, the commissioner acted of his own motion.

A parol consent to the laying out of a road through improved lands is good until revoked. (People v. Goodwin, 1 Seld., 568.) It appeared that the persons who signed the release were the-owners, and all the owners, of land on the line of the road. The release, in connection with the other circumstances of the case, was sufficient evidence, uncontroverted, of the fact that the persons who executed it consented to the laying oiit of the road.

Sufficient appears then to show that the commissioner had jurisdiction to proceed, and to lay out the road where he did, and that showing being accompanied by proof of a valid order, the evidence of a laying out of the alleged road is complete. Extremis probatis, media presumuntur.

The west end of the road was never opened, but about three-fourths of a mile of the road next to the five mile line had been, known as “Fullam’s lane,” and had been traveled and worked considerably by the occupants of the lands adjoining it, before-the road was laid out. At that time, it was crossed by fences, and gates or bars, at intervals, through which said occupants were allowed to pass, but without claim of. right on their part.. These facts in respect to the existence and use of the lane were found, by the referee, and he also found that after the aforesaid order-laying out the road was made, no change took place in respect, to the line of fences, or in respect to the cross-fences and gates- and bars, except that one cross-fence and gate was removed a few rods west of its former position; and he further found as a-fact, that said highway was never opened. That it was never opened the entire length of the survey is undisputed ; but it-also appears by a decided preponderance of evidence that, after the order was made, the easterly part of the road already referred to was worked several seasons under the direction of the public authorities, it was opened to travel and was traveled, without interruption, except that some of the occupants of the-lands adjoining kept up cross-fences, for the purpose of restraining cattle or protecting crops, but not for the purpose or with the intent of preventing the use of the road, and #that such cross-fences were supplied with gates or bars which were open in the-winter, and which travelers were at liberty to open, and did open, habitually, in the summer season, for the purpose of passing-through. At times, some of the adjoining occupants disputed the right of the public to use the road, but the right seems to have been persistently asserted each year, either by user, or by the action of the public authorities in working the road, and. sometimes by both. This state of things continued until the commencement of this action in 1874.

The statute prescribing that a laid out road shall be opened and worked within six years after making the order does not prescribe how much or how well it shall be worked ; if opened and worked at all, it will not lose its legal existence. (Marble v. Whitney, 28 N. Y., 297.) The most that can be claimed in the present case is that the westerly portion of the surveyed route, which was-not opened or worked at all, ceased to be a public highway, but the remaining three-quarters of a mile, if opened and worked within six years, was not so aifected.

Neither is it any objection to this view of the case that the portion of the road so kept in existence did not connect at its-western terminus with any other highway. A cul de sac may constitute a highway. (The People v. Kingman, 24 N. Y., 560.)

The fact that the public authorities permitted occupants of lands on the line of the road to keep up cross-fences for , their own -convenience, which, however, were so constructed, by means of "bars or gates, as not to prevent the public from passing and repassing, did not divest the road of its public character. At most it shows an acquiescence by the public and the public authorities, in a partial obstruction of the highway, for the convenience of the occupants ; but such acquiescence is no evidence that the road was not opened and worked as a public highway, or that it was abandoned as such. (Marble v. Whitney, supra, op. of Wright, J., 305.)

One of the numerous exceptions taken on the trial by the -defendant’s counsel points to an erroneous ruling. The plaintiff, testifying in his own behalf, was allowed, against the defendant’s objection, to state declarations made to him by Samuel Strowger, his grantor, to the effect that the attempt to open the road had been abandoned, and the commissioner had refused to ■open it further, and for that reason he, Strowger, had fenced it up. The testimony was inadmissible, and as it bore upon the very point on which the case was decided against the defendant, it is impossible to say that it did do harm.

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

Talcott, P. J., and Hardin, J., concurred.

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


text:
    CATHARINE De FOREST, as Administratrix, etc., of LEVI W. De FOREST, Deceased, Respondent, v. HUGH J. JEWETT, as Receiver of the Erie Railway Company, Appellant.

      Master and servant — duty of the master,, in providing suitable machinery and premises — what risk is assmned by the set'vant.

    The plaintiff’s intestate, an employe of the defendant, was killed while attempting to couple cars. At the place of the accident there was placed under the tracks, for the purpose of draining them, an open ditch about six or eight inches deep and about the same in width, with perpendicular sides, formed by two railroad ties. Plaintiff’s intestate while advancing with a moving car, to couple it with a. stationary one, caught his foot in the ditch, and being unable to extricate it, was run over and killed. Upon the trial the evidence was conflicting as to whether or not it was practicable or advisable to construct a covered ditch at the point in question. The judge charged that if the jury found that the ditch was more unsafe, or dangerous than a covered ditch would have been, then the-defendant was guilty of negligence, even though he had made due inquiry as, to the kind of ditch to be employed, and employed an uncovered one because he believed it to be better and safer than a covered ditch.

      Held, that this was error.
    It appeared that the deceased had been employed in the yards for several months, during all of which time the ditch had been there and was plainly visible.

      Held, that as the defect, if any, was a patent one, he must be regarded as having assumed the risk growing out of its existence, and could not recover for damages occasioned by it.
    Appeal from a judgment, in favor of the plaintiff, entered on a verdict rendered at the Erie Circuit.
    The action was brought to recover damages sustained by the death of plaintiff’s intestate, Levi W. De Forest, whose death was alleged to have been caused by the defendant’s negligence.

      E. C. Sprague, for the appellant.
    The selection of the facilities or appliances in the business of the employer requires the exercise of ordinary care and prudence, and whether or not this care and. prudence have been exercised is the test of the master’s liability in this particular. He does not guaranty the safety of his employes. (Wright v. N. T. O. R. R. Co., 25 N. Y., 562, 565, 566; Laning y. If. Y. G. II It. Co., 59 id., 521, 528; Hike y. Boston and Albany It. It., 53 id., 549; Leonard v. Gollins, 70 id., 90; Be Graff v. Af. Y G. and II. It. B. B. Co., 3 N. Y. S. C. [T. & C.], 255;: Warner v. Brie Bailway Co., 39 N. Y., 468; Wharton on Negligence, § 213; Kelly v. Silver Sjgring Co., 'The Reporter, vol. VII, 60; Be Graff v. AT. Y. O. and II. B. B. B. Co., Court of Appeals, 19 Alb. Laiv Jour., 134; Banoell v. Boston and Worcester B. It. Co., 4 Mete., 49.) The deceased "by accepting his employment assumed the usual risks and perils of the servicó, and also the risks and perils incident to the use of the machinery and property of the defendant as it then was, so far as such risks were apparent. (Wharton on Negligence, §§ 206, 214; Gibson v. Brie It. B. Co., 63 N. Y., 449; Mehany. Syracuse B. Co., 73 id., 585; Be Graff y. AT. Y. G. amd II. B. B. B. Co., 3 N. Y. S. C. [T. & C.], 255; Laning y. If Y. G. and II. B. B. B., 49 N. Y, 521, 534, 535; Wright y. Ai. Y. G. B. B. Co., 25 id., 562, 566, 569, 570; Owen v. AT. Y G. B. B. Co., 1 Lans., 108; Jones y. Boach, 4 N. Y. Super. Ct., 248; Bvans v. L. S. and M. S: B. Co., 12 Ilun, 289; Loonam y. Brockway, 3 Robertson, 74 ; L. S. and M. S. B’y Co. y. Knittal, Ohio Supremo Court, 19 Alb. Law Jour. 37.)

      A. G. Rice, for the respondent.
    It was the duty of the defendant to furnish a safe, secure and proper yard for its employes to work upon, so far as human sagacity, care and skill, would enable him to do it, and the neglect to use that sagacity, care or skill is negligence which renders the defendant liable. Plank v. Af. Y O. and H. B. B. B. Co., 60 N. Y, 607; S. O., 1 N. Y. S. C., 319; O'Donnell y. Allegany B. B. Co., 59 Pa., 239.) The faulty construction or maintenance of a switch yard is not one of the risks taken by an employe. {Plank y. AT. Y. C. and II B. B. B. Co., 60 N. Y. 607; 1N. Y. S. C. [T. & C.], 319; 59 Pa., 239.)
   Smith, J. :

The injury of which the plaintiff complains occurred at the yard of the Erie Railway Company, on Louisiana street, in the city of Buffalo. The deceased was in the employment of the defendant, and was engaged in coupling cars. One car had been run off upon a track and left standing. When the next car was “ kicked” off, it approached the standing car at the rate of from "three to four miles an hour. In order to couple the two cars, it was necessary that the coupler should step in between them while the moving car was advancing, and couple the two at the instant •of contact. This the deceased attempted to do. There was an •open ditch under the track, six or eight inches deep and about the same in width, the sides of which were perpendicular, and made by two ties laid six or eight inches apart. It happened that the point at which the two cars came in contact was directly over the ditch, and as the intestate advanced with the moving car and .stepped in between the two to put in the ’ coupling pin, his foot was caught in the ditch so that he could not extricate himself and he was run over and killed. The ditch was constructed some years before the injury, for tho purpose of draining the track. It was uncovered and plainly visible. There was a conflict of evidence as to whether it was practicable to construct a covered ditch at that point, owing to the lowness of the surface of the ground ; whether a covered ditch would have answered as well as an open one for the purpose of drainage ; and whether, if covered with wood, it would not have been more unsafe than an ■open drain, by reason of the liability of its covering to give way from decay or other causes and be broken in.

Of the exceptions argued by counsel, it will be -necessary to notice only some of those which relate to the char'ge.

The judge charged the jury that if they should find that the ditch was unsafe or dangerous, the negligence of the defendant was established. We think the exception to this was Well taken. ‘To establish negligence it was necessary to show that the ditch was an improper or unfit construction, as well as a dangerous one. It was not shown to be dangerous or unsafe except by reason of its being uncovered, and there was a- question upon the evidence whether it was not only prdp'er but necessary to keep the ditch open in order to drain the track. The true rule is that the master is liable to his servant for any injury happening to him from the misconduct or personal negligence of the master ; and this negligence may consist in the employment of unfit and incompetent servants and agents, or in the furnishing for the work to be doné, or for the use of the servant, machinery or other implements and facilities improper and unsafe for the purposes to which they are to be applied. (Wright v. The New York Central R. R. Co., 25 N. Y., 562, per Allen, J., p. 565, and cases there cited by him; Laning v. N. Y. C. and H. R. R. R. Co., 49 id., 521, 528.) In these respects, the master is hold to the exercise of ordinary care only. (Leonard v. Collins, 70 N. Y., 90.) Yet the learned judge, .adhering to the position taken by him in the portion of his charge already referred to, subsequently declined to charge that the defendant was not guilty of negligence if, as a matter of judgment and with due care, he used an uncovered instead of a covered ditch, upon the theory, honestly entertained, that it was the best. And he further charged as follows : “If the defendant used care in the selection of the kind of ditch employed, and after duo inquiry employed an uncovered ditch because, after inquiry, ho had satisfied himself that it was safer and better than a covered ditch, yet if the jury should find that he was mistaken in this respect, and that, in fact, a covered ditch was safer than an uncovered one, the use of the uncovered ditch would be an act of negligence for which the defendant would be responsible.” Thus, the defendant was held liable for an error of judgment, although he exercised due care in determining the mode of constructing the ditch. The charge was a departure from the true rule.

But if the drain was so defective as to constitute negligence on the part of the defendant, the evidence is that the defect was patent and that it was known by the deceased, or he had ample opportunity to know it, he having been employed in the yard several months, and the open ditch having been there during the entire period of his employment. He is, therefore, to be regarded as having assumed the risks incident to his employment growing out of the existence of the ditch and the mode of its construction, so far as they were apparent. (Gibson v. Erie R. W. Co., 63 N. Y., 449; Mehan v. Syracuse R. R. Co., 73 id., 585; De Graff v. N. Y. C. and H. R. R. R. Co., 3 N. Y. S. C. R., 255.) The judge declined to charge that upon the evidence it is to be presumed that the deceased knew of the existence of the ditch, buf he left it as a question of fact to the jury. In these respects we think he erred. The plaintiff should have been nonsuited on this ground.

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

Talcott, P. J. and Hardin, J. concurred.

Judgment reversed aud a new trial ordered, costs to abide event.


text:
    BARNA C. ROUP AND JAMES INGERSOLL as Administrators de bonis non of WILLIAM INGERSOLL, Deceased, Appellants, v. ALONZO BRADNER AND LEWIS W. THOMPSON as Executors of DANIEL INGERSOLL, Deceased, Respondents.

      Action against administrator — when barred by the six years statute — Equitable interest in real estate passes to heirs, and not to next of kin — when an administrator cannot sue for proceeds of sale.

    William and Daniel Ingersoll jointly purchased certain lands, the title being taken in the name of Daniel who agreed in writing, with William, to account to him for one-half of the rents and profits and of the proceeds of any sale thereof. William died in 1859, -intestate, and Daniel and one Roup were appointed his administrators. In 1860, Daniel, as such administrator, received and appropriated to his own use certain assets of the estate of his brother. Thereafter he received money for the sale of timber growing on the land owned jointly by himself and his brother’s estate, and subsequently contracted to sell a part of said land to Roup, and received a portion of the purchase-money. Thereafter, and in 1871, Daniel died and the defendants were appointed his exeeutors. Roup died in 1874, leaving William’s estate unadministered, and in February, 1877, the plaintiffs were appointed administrators de bonis non of William’s estate.
    Thereafter the land contracted to be sold to Roup was sold under a foreclosure of the contract in an action brought by Daniel’s executors, and the proceeds were delivered to the surrogate, to whom was also, delivered the proceeds arising from a sale of the balance of the lands owned jointly as aforesaid, which sale was ordered by the surrogate to pay the debts of Daniel Ingersoll.
    In an action by the plaintiffs as administrators de bonis non, against the executors of Daniel Ingersoll, to recover the amount of William’s estate converted to his own use by Daniel Ingersoll, and one-half of the proceeds of sale of the • timber, and also one-half of the proceeds of the sale of the land which latter . amounts were held by the surrogate.

      Held, that the claim against the estate of Daniel for the moneys received by him as administrator of William was barred by the six years statute “of limitations.

      That the.moneys received by him on the sales of the land were received by him in his individual capacity, and that as an action at law could have been maintained against him therefor, under his written agreement with William, the action was barred by the six years statute of limitation.
    That on William’s death his interest in the land descended to his heirs-at-law, and did not pass to his personal representatives, and that, any action to recover the proceeds arising from subsequent sales must be brought by such heirs and not by the plaintiff.
    That the heirs-at-law were entitled to one-half of the proceeds arising on the foreclosure of the contract of sale, and one-half of the proceeds arising from the sale of the balance of the lands, subject to any claims of the creditor's of William.
    Appeal from a judgment m favor of the defendant, entered upon the report of a referee, on a reference, under .the statute, of a disputed claim against the estate of Daniel Ingersoll, deceased, and also from an order of the Special Term in Monroe county, denying a motion for a new trial on a case and exceptions, and confirming the report of the referee. The claim was for cei’tain assets of the ebtate of William Ingersoll not accounted for hy Daniel Ingersoll, who was one of his administrators, and also for one-half of the proceeds of sale of certain timber, and of the land on which it stood. The title to which land and timber was held in 1he name of Darnel for the benefit of himself and William Ingersoll.

      Bingham <& Sutherland, for the appellants.
    j". A. Vanderlip, for the respondents.
   Smith, J.:

William and Daniel Ingersoll, brothers, jointly purchased and paid for certain land in Ossian, Livingston county, containing 128 T8-¡ro acres. Daniel took the legal title to the, whole in his own name, and agreed in writing, with William, who was the equitable owner of one-half, to account to him for one-half of the proceeds of said land and the rents and profits thereof, whenever the land should bo sold. Daniel sold one-half of the land before the death of William, and accounted to him for one-half of the avails of such sale. William died intestate, on September 5, 1859, and in November following his brother Daniel and John Roup were appointed administrators of his estate. In the year 1860, Daniel, as such administrator, received and appropriated to his own use certain assets of the estate of his brother, of the value of $769.12. In the years 1860, 1861 and 1862, Daniel received from the sale of timber growing on the portion of said land remaining unsold, the sum of $278. On December 12, 1866, Daniel contracted in writing to sell and convey to said John Roup fifty acres of said land, and during his life-time ho received from Roup, on said contract, timber of the value of $664.82. Daniel died March 4, 1871, and in the following June the defendants were appointed executors of his will. Roup diedJtme 22, 1874, leaving the estate of "William Ingersoll unadministcrod, and on February 26, 1877, letters of administration de bonis non of said estate were granted to the plaintiffs. On February 23, 1877, the land contracted to Roup was sold under a decree of foreclosure, in an action brought by the defendants as executors of the will of Daniel, to foreclose the contract, default having been made on the part of Roup and his heirs ; and upon the sale there was bid the sum of $292.63, besides costs, of which sum the purchaser paid $61.38 in money, and for the remainder he gave his bond and mortgage. The money and the bond and mortgage were received by the attorney of the defendants, and wore delivered by him to the surrogate of Livingston county, who now holds them. The remaining 14 i-0-0- acres of said land purchased by the brothers jointly have been sold since the death of Daniel, under an order of said surrogate granted upon the petition of the defendants, as executors, for the purpose of paying the debts of Daniel, hig personal estate being insufficient. The avails of such sale amounted to the sum of $269.19, one-half', of which is secured by a bond and mortgage, now in the hands of said surrogate.

Upon these facts found by the referee, he decided that the claim of the plaintiffs for everything received by Daniel, as administrator, not including the avails of the real estate received by him, is barred by the statute of limitations, and that before the claim for the proceeds of the trust property can bo maintained a successor should be appointed to Daniel, as trustee. He also held that the defendants are liable personally, only for anything received by them since the death of their testator; that the next of kin of William Ingersoll, or their representatives, are the proper parties to sue for the avails of the real estate; and that causes of action are improperly united, to wit: a claim against the defendants, as executors, for personal property which came to the hands of their testator, as administrator, and also a claim against them, as executors, for the proceeds of the sale of the lands which their testator held as trustee.

It is difficult to see upon what ground a recovery can be had against the present defendants for the money received by their testator, as assets belonging to the estate of his brother, of which he was one of the administrators, and in which capacity he received the same. The moneys were received by him in 1860, and he died in 1871. His co-administrator survived him three years. No steps were taken to compel either of them to account for the estate of their intestate. Aside from the fact that there is no proof that the defendants ever received a dollar of assets from their testator, the claim is barred by the statute of limitations. It would have been barred if the testator were now living and the claim were made against him. The suggestion of the appellant’s counsel, that the next of kin of William Ingersoll, as such, had no right of action,against Daniel, in his life-time, does not meet the point. It is not strictly accurate as to the law, for if the administrators of William had more than sufficient assets in their hands to pay the debts, either of the next of kin, entitled to shai’e in the distribution, could have maintained an action against the administrators to recover his distributive share, after the expiration of one year from the granting of letters, on giving a bond as required by the statute. (2 R. S., 114, §§ 9, 10.) And after the expiration of eighteen months, he might have required them to account before the surrogate. But those remedies are barred by the statute, after the expiration of six years from the time when they accrued. The limitation applies to the claims of creditors as well as to those of legatees and next of kin. (McCartee v. Camel, 1 Barb. Ch., 455; Souzer v. De Meyer, 2 Paige, 574; American Bible Society v. Hebard, 51 Barb., 552; S. C, affd. June, 1869, 41 N. Y., 619, Mem.; Smith v. Remington, 42 Barb., 75.) The case of Decouche v. Savetier (8 Johns. Ch., 190), cited by the appellants’ counsel, seems to be in conflict with the cases above cited, but it was overruled by tlie same chancellor who decided it, in Kane v. Bloodgood (7 Johns. Ch., 90, 125-127). The claim was barred by the statute, long before the plaintifls were appointed administrators de bonis non.

The claim for the one-half of the moneys received by Daniel for the proceeds of the sale of the land and the rents and profits of the same is also barred by the statute. Daniel received those moneys in his individual capacity and not as administrator. It is immaterial whether he received them as a trustee or not, so far as the question of the statute of limitations is concerned. In view of the agreement, by the terms of which Daniel was authorized to sell the laud and account to his brother for the proceeds and for the rents and profits received by him, the money could have been recovered in an action at law upon' the contract. Assuming that there was a trust which a court of equity would have enforced, there was also a concurrent remedy at. law, upon the agreement, and the six years limitation applies.

There is another insuperable difficulty in the way of this part of the plaintiffs’ claim. The various remedies above suggested, whether legal or equitable, followed the right to the laud. It is very clear that on the death of William, his equitable title to the land then unsold descended to his heirs, and they, and not his administrators, are entitled to recover the moneys thereafter arising from the sale of the land and from the rents and profits thereof. In order to become personal estate for the purposes of administration, the money must have belonged to tiro decedent as personalty. Whatever once descended to his heirs cannot be diverted from them, except for the purpose of liquidating some superior claim. In accordance with this rule, it has been held frequently that surplus moneys arising from a mortgage sale, after the death of the owner of the equity "of redemption, go to his heirs. (Moses v. Murgatroyd, 1 Johns. Ch., 119; Cox v. McBurney, 2 Sandf., 561; Dunning v. Ocean National Bank, 61 N. Y., 497.) It is otherwise where one having an interest in lands dies intestate after the sale thereof; his interest in the money realized from the sale is personal estate, and goes to the administrators, not to the heirs. (Denham v. Cornell, 67 N. Y., 556.)

When the action of Ingersoll and another against the present defendants, which is referred to by the respondents’ counsel in his brief, was tried at the circuit, the question whether the heirs or the administrators.were the proper persons to sue for the moneys received by Daniel Ingersoll on account of the land was not fully considered, it not being essential to the disposition which was made of the case. It was there said that the plaintiffs in that action could not maintain a suit, as next of kin, to recover a distributive share of the personal estate and of the trust moneys alleged to have been received by Daniel as administrator, but that the suit must be brought by an administrator.' The remark related to the incapacity of the next of kin to sue for any portion of the estate, and had no reference to the question whether the right to recover Tor the proceeds of the real estate was vested solely in the heirs-at-law.

The incapacity of the administrators de bonis non, to maintain an action for the proceeds of the real estate, is also fatal to that part of the claim which relates to the money and securities in the hands of the surrogate.

But as it may save further litigation and aid the surrogate in disposing of the fund in his hands, we express the opinion that, upon tho facts now before us, the heirs of William are entitled to one-half of the proceeds of the land sold under the surrogate’s order, and of the surplus made on the foreclosure sale, subject, of course, to the rights of creditors of William, if any there are.

The judgment and order appealed from should be affirmed, with costs of the appeal against the plaintiffs in their representative character, to be paid out of the goods of their intestate in their hands.

Talcott, P. J., and Hardin, J., concurred.

Ordered accordingly.