text:
    FANNY KYLE and another, Appellants, v. GEORGE A. KYLE, Executor, etc., Respondent.

      Dower—payment of its mine by executor—Contested claim by executor—power of surrogate to Tiea/r,

    Dower is recoverable by action against the person in possession of the real estate of which the deceased husband died seized. Mesne profits are not recoverable until the widow recovers judgment for her dower.
    An action will not lie for its value in money unless an express contract be proved. The statute (3 R. S. [5th ed.], 175, § 37), imposes no limitations on the power of the surrogate to hear and determine claims by executors against the estates of their testators. It matters not whether such claims are contested or not.
    Appeal from a decree of the surrogate of Cayuga county, entered May 21, 1873.

      Fanny Kyle and Charles Kyle were respectively the widow and only child of the late David Kyle, deceased, who died at Aurelius, in the county of Cayuga, about the 17th day of March, 1871, leaving a last will and testament, by which his brother, George Kyle, and William Mersereau, the father of Fanny Kyle, were appointed executors; the same was duly proved, and the said executors duly qualified for the performance of the trust thereby conferred, and entered upon the same on or about the 10th day of April, 1871, and took possession of the personal property of the deceased, and disposed of the same.
    On the 23d day of April, 1873, upon due citation for final accounting, served some time previously, the said executor, George Kyle, presented his account as executor, showing, among other things, the payment by him to his mother, an aged woman, by the name of Mary Kyle, the sum of $1,300, as and for supposed claims of her dower-right in the farm owned by said deceased at his death. The widow’s dower never was admeasured.
    The surrogate allowed the same as a payment, against the objections taken thereto. He also allowed items of fifty dollars and twenty dollars, alleged to have been paid by said George Kyle, executor, to his mother; also the sum of seventy dollars. The surrogate also charged to the said William Mersereau, executor, the sum of $224.08, as interest upon property which said executor had bid off at the sale for the widow (who claimed under the will), at her request and direction.
    He heard, tried and determined a contested claim of the said George Kyle, against his deceased brother’s estate, of $1,500, under objection, and adjudged that the estate was indebted, upon the proofs, to the said George Kyle, for the said $1,500, and ordered that it be paid to him.

      James R. Cox, for the appellants.

      M A. Woodm, for the respondent.
   Mtjllin, P. J.:

The defendant, as executor of the last will of David Kyle, was not authorized to pay his mother anything from the assets in his hands, as or for her dower on the farm on which, the testator lived at the time of his death. Dower is the interest that the widow has in the real estate of which her husband died seized, and is recoverable by action against the person in possession. Mesne profits are not recoverable until the widow recovers judgment for her dower. An action will not lie for its value in money, unless an express contract to pay for it is proved. Until assignment, the «widow has nothing but a mere right of action; so that she cannot maintain an action for use or occupation. Such an action can only be maintained by one having an estate in the land, and as between whom and the occupant the relation of landlord and tenant exists,

It is quite probable, that, had the testator promised to pay the widow the value of the use of her dower interest in the farm in which such right existed, that an action on the promise might be sustained, although dower had not been assigned to her. Ro such promise is pretended, much less proved. The surrogate erred in allowing the item of $1,300.

The claim of the executor to be paid, out of the assets, a demand of $1,500, alleged to be due him by the testator at the time of his death, has been allowed against the weight of evidence given on the hearing. The $1,500 are claimed by defendant to be due to him for one-half of the personal estate on the farm on which he and the testator lived at the time of the sale of the farm and personal property by defendant to the testator. It is conceded by the defendant that the land was paid for, but he insists that the personal was not paid for. The appellants insist that the testator purchased both real and personal for the sum of $6,000, and that no claim was made for the price of the personal, until after the death of the testator. The appellants’ counsel makes no objection in his points on the appeal, to the allowance by the surrogate of the personal claim of the defendant against the estate of the testator, provided he had jurisdiction to hear and decide it. By 3 Revised Statutes (5 th ed.),175, section 37, it is provided that no part of the property of the deceased shall be retained by an executor or administrator in satisfaction of his own debt, until it shall have been proved to, and allowed by, the „ surrogate. By the next section, it is provided that the proof of such debt may be made on the service and return of a citation for that purpose, directed to the proper persons, or on the final» account of such executor or administrator. The statute imposes no limitation on the power of the surrogate to hear and determine such claims. It matters not whether the claims of the executor are or are not disputed ; they must be proved to the satisfaction of the surrogate before he can allow them. The power of the surrogate to hear and determine claims of creditors against an executor, and disputed by him, has been uniformly denied. But his power to hear and determine claims made by the executor against the estate for debts due to him from the testator, has been quite as uniformly asserted.

The appellants’ counsel raises no question as to the allowance of the other claims by the surrogate, and they are not therefore considered by us.

The surrogate was right in refusing interest on the $1,500 claimed by the defendant. It .is not satisfactorily proved that the personal property was sold by defendant for a specific sum. It would seem that the amount was arrived at by defendant, by his estimate of the value of the property that the testator received with the farm.

The decision is reversed as to the $1,300 allowed the mother of the defendant for her dower, and affirmed as to the residue.

The proceedings are remitted to the surrogate with directions to settle the account of the executors by disallowing, instead of allowing, the item of $1,300 for money paid by defendant to his mother.

Ordered accordingly.

       3 R. S. (5th ed.), 33, §§ 19, 30, 31.

       Yates v. Paddock, 10 Wend., 538.

         Colt v. Planer, 4 Abb. (N. S.), 140; Smith v. Stewart, 6 J. R., 46. .

       See cases collected in Abbott’s Digest, vol. 5, p. 373, § 799.

       Williams v. Purdy, 6 Paige, 166; Gardner v. Gardner, 7 id., 112; Jumel v. Jumel, id., 591; Robinson v. Raynor, 28 N. Y., 494; In the Matter of the Accounting of O. N. Cunningham, 1 Hun, 214.


source: Caselaw Access Project

author: Mullin, P. J.:

license: Public Domain

text:
    FLORENCE MICHAEL, Respondent, v. BENJAMIN STANTON, Appellant.

      Master and servant—test by which to determine when such relation exists—Negligence of servant—injuries occasioned by.

    In case of an injury arising from the negligence of a servant, the true test by which to determine who is the master, and consequently who is liable to the party injured, is to determine who employed the servant, and who had the power to discharge him.
    Appeal from a judgment of the County Court of Onondaga county, affirming a judgment rendered in this action against the defendant in a Justice’s Court. The action was “in trespass” for alleged wrongful running into and damaging the wagon of plaintiff on a public highway.

      Irving G. Vann, for the appellant.
    To render one person liable for the negligence of another, the relation of master and servant, or of principal and agent, must exist between them. (Stevens v. Armstrong, etc., 2 Seld., 435; Blake v. Ferris, 1 id., 48; Laugher v. Pointer, 5 Barn. & Cress., 560; Quarman v. Burnett, 6 Mees. & W., 497; Rapson v. Cubitt, 9 id., 709; Milligan v. Wedge, 12 Adol. & Ellis, 737; Sproul v. Hemmingway, 14 Pick., 1; Story on Agency, §§ 453, 456; Weyant v. The New York & Harlem R. R. Co., 3 Duer, 360; Schular v. Hudson R. R. R. Co., 38 Barb., 653; Blackwell v. Wiswall, 24 id., 355; Norton v. Wiswall, 26 id., 618; Mayor v. Cunliff, 2 Com., 165; Pack v. Mayor, etc., 4 Sold., 222; Kelly v. Mayor, etc., 1 Kern., 432; Corbin v. American Mills, 27 Conn., 274; O'Rourke v. Hart, 7 Bosw., 511; Moore v. Sanborne, 2 Mich., 519; Clark v. Vermont, etc., R. R. Co., 28 Term., 103; Shearman & R. on Negligence, pp. 71 to 109, and cases cited; Reeves Domestic Relations, pp. 508 to 522.) If it is assumed that it appears from the evidence that Gilbert and the defendant had exchanged works, and that Gilbert sent his servant Hinckley to draw stave bolts for the defendant, then Gilbert, if any one, was alone liable for the injury. This is substantially the same as if Gilbert had undertaken to carry the stave bolts of the defendant for hire,
      when, although the team might be exclusively occupied for the use of the hirer, it would remain entirely under the control of Gilbert, and he alone would, unquestionably, be liable for its negligent management. (S. & R. on Negligence, pp. 90, 91; Story on Agency, §§ 452, 453; Dalyell v. Tyrer, El., B. & El., 899; Crockett v. Calvert, 8 Ind., 127; Fenton v. City of Dublin Steam Packet Co., 8 Adol. & E., 835.) The hirer cannot properly be said to have control of the servants, unless he has the right to discharge them and employ others in their places, in case of their misconduct or incapacity, that being the only practicable means by which free servants can be controlled. (S. & E. on Negligence, § 74; Boniface v. Relyea, 5 Abb. [N. S.], 259; Holmes v. Onion, 2 C. B. [N. S.], 790.)

      A. L. Johnson, for the respondent.
    If there is any evidence to support a judgment, the court will not reverse the judgment because it is slight. (12 Johns., 298; 1 Hill, 61; 5 Barb., 560; 11 id., 387; 31 N. Y., 480.) Every legal intendment will be made in favor of the judgment. (15 Barb., 96; 3 E. D. Smith, 115; 9 Johns., 146.)
   Mullin, P. J.:

This action was commenced in a Justice’s Court of the county of Onondaga, to recover damages done to plaintiff’s wagon by the negligence of defendant’s servant. The plaintiff had judgment, and on appeal to the County Court it was affirmed. The defendant now appeals to this court.

One Hinckley was drawing stave bolts belonging to defendant, from Jamesville into the city of Syracuse. The plaintiff met the team driven by Hinckley on a canal bridge in Syracuse; plaintiff was going down the hill, and Hinckley, with his team, was going up. The fore wheels of each of the wagons passed, but when the hind wheel of Hinckley’s wagon came up to the fore wheels of plaintiff’s, it struck plaintiff’s fore wheel and broke out a spoke and injured the spring. The plaintiff testified that he turned to the right as far as he could, and Hinckley testified that there was snow on the ground, and that the hind wheels of his wagon slipped and struck plaintiffs wagon.

It cost plaintiff six dollars to get his wagon repaired.

Gilbert and Stanton occasionally changed work with their teams. Gilbert sent Hinckley to draw the bolts for defendant, and told him where to load. He, Hinckley, had worked for defendant before in changing work, and had been at Gilbert’s when Stanton was there at work.

This is the substance of all the evidence as to the master in whose employ Hinckley was on the occasion of the injury.

To authorize the justice to render a judgment against the defend ant, he must have found that Hinckley was in defendant’s employ.

Such is not the legitimate conclusion from the evidence. It seems to me clear that Hinckley was in Gilbert’s employ, and the latter, and not Stanton, was liable for his negligence. The defendant did not employ Hinckley, and had not the power to discharge him. This is the only test by which to determine which is the master, and, as such, liable to the person injured.

No negligence was proved on the part of Hinckley. But that question was not distinctly raised on the trial, and cannot be insisted on as a ground for reversing the judgment.

The judgment of the County Court and of the justice, must be reversed.

Present— Mullin, P. J., Smith and Gilbebt, JJ.

Judgment of County Court and of the justice reversed.

       Blake v. Ferris, 1 Seld., 48, and cases cited.


author: E. Darwin Smith, J. :

text:
    JOHN HEERMANS, Plaintiff, v. ALMON H. ROBERTSON and THOMAS CREECH, Defendants.

      Trusts ■—• sale of land neither for creditors, legatees n/yr incumbrancers — no trust can be created for — Express trust—when valid as a power.

    When the primary, main object of a trust deed is to have the lands therein described sold (not for the benefit of creditors or legatees, or to discharge incumbrances thereon), and the proceeds paid over by the grantee named in the deed, no valid trust is created, and no title to the lands passes by the deed, although, until such sale, the grantee is required to collect and pay over the rents and profits.

      Whenever the principal object of a trust is to sell lands and pay over the avails, the authority to rent them in the meantime, does not take the case out of the statute.
    Exceptions ordered to be heard in first instance at General Term.
    This is an action of ejectment, tried at the Steuben Circuit, in April, 1874'.
    The plaintiff claimed title under deeds from Joseph Fellows, who, it was admitted at the trial, had the possession and title of the said premises on the 10th of October, 1868. ' The plaintiff put in evidence a deed to him, dated on said tenth day of October, in which said Fellows conveyed to him all his real and personal estate in the States of Hew -York, Pennsylvania, Michigan, Wisconsin, Indiana, Ohio, Illinois and Western Virginia, as and for the purposes therein specified. Said deed had the provisions following: “ Provided, always, that the said Heermans shall sell the said granted lands by retail for the best prices that can be got for the same, and convey them in fee simple to purchasers with covenants of warranty binding my heirs to warrant and defend the title to the lands so to be sold and conveyed; and until such lands shall be sold as aforesaid, he "shall rent such of them as can be rented for the best prices that can be got. He shall collect all debts owing to me, and execute deeds as aforesaid for all lands now under contract of sale on payment of the debts on them respectively. The avails of said real and personal estate shall be paid, distributed and disposed of as follows: First. To defray the expenses of this trust, to wit, five per cent commissions on all moneys received and paid out, and all necessary and reasonable expenditures and charges in and about the execution of the trust, including local agencies. Secondly. During my life the residue of all moneys received sba.11 be paid over to me, or appropriated to my use under my direction. Thirdly. After my decease, and after the payment of all my just and legal debts, and the expenses, of the trust aforesaid, the residue shall be distributed as directed in a writing supplementary to this deed to be executed by me hereafter; or in case such writing shall not be executed, then the residue shall be distributed to my heirs according to the laws of the State of Hew York.”
    The plaintiff also gave in evidence a supplementary deed from said Fellows to him, dated October 15th, 1868, which, referring to the above named deed and writing supplementary thereto, directed the said plaintiff, after said Fellows’ decease, to distribute the estate left after payment of debts and expenses, among certain persons therein named, and pay certain annuities to other persons therein named, all payable from the day of his decease during their natural lives.
    It was proved that the defendant Creech was in possession under the defendant Robertson, as his tenant. It was also proved that Hr. Fellows died on the 29th day of April, 18Y3, and that this action was commenced June 16, 18Y3.
    It appeared that the defendant was in possession of said premises, under a contract of sale from Joseph Fellows, dated December 16th, 18Y0, and that defendants .went into possession under said contract.
    At the close of the case, the defendants’ counsel moved for a nonsuit, upon the grounds that the plaintiff had shown no title to the premises, and that the right of the plaintiff under said deed terminated at the death of Hr. Fellows. The court granted the nonsuit, and the plaintiff duly excepted, and the exception was ordered to the General Term.

      Brown do Hadden, for the plaintiff.

      George B. Bradley, for the defendants.
   E. Darwin Smith, J. :

The questions presented upon the exceptions taken to the non-suit at the circuit, depend entirely upon the construction of the deeds from Fellows to the plaintiff. It appears that the question of the construction of these deeds, has been before this court in a former action instituted by Hr. Fellows in his lifetime to set aside said deeds, in the case of Fellows v. Heermans, reported in 4 Lansing, 230. That case was heard in the third department, and was quite fully discussed in the opinions delivered by Judges Hogeboom and Hiller ; and so far as that court clearly and distinctly decided any question involved in this action, we should feel bound to regard such decision as res adjudícala. But the court was divided in opinion, and, we think, did not clearly decide any question except that that action could not be maintained, and that the complaint was properly dismissed at Special Term. The learned judge who gave the prevailing opinion, seemed to be in doubt whether the said deeds created a valid trust, but upon the whole concluded that they did create a valid power in trust; and the decision of the case, I think, should be considered as deciding nothing else in respect to the real estaté. That ground was sufficient to warrant the decision dismissing the complaint.

This is an action of ejectment, and the plaintiff was nonsuited at the trial, upon the ground that he showed no title in himself. Ejectment is a possessory action based upon a legal title, and the plaintiff was bound to show that he had the legal title to, and was entitled to, the possession of the premises in dispute. His title solely rested upon the deeds of the 10th and 15th of October, 1868.

The counsel for the plaintiff, in his argument, claims that said deeds did create a valid trust, and did vest in him the legal title to the land in dispute, and that he was therefore erroneously non-suited at the circuit. By the Revised Statutes, uses and trusts were abolished, except as authorized in said article. In section 55, it was declared that “ express trusts may be created for any or either of the following purposes: First. To sell lands for the benefit of creditors. Second. To sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon. Third. To receive the rents and profits of land, and apply them to the use of any person during the life of such person, or for a shorter time, subject to the rules prescribed in the first article of said title. Fourth. To receive the rents and profits of land, and to accumulate the same for the purposes and within the limits prescribed in the first article of said title. It is not contended that within these specifications any valid trust was created by said deed, except under the third specification or subdivision.

It is also urged by the counsel for the plaintiff, that the provision in the deed of the tenth of October, directing that the trustee shall sell the lands at retail, and until said lands shall be sold as aforesaid, he shall rent such of them as can be rented for the best prices that can be got; and, by a further clause in the deed, that the avails of the real and personal estate shall be paid and distributed as follows: Secondly. During my lifetime the residue of all moneys shall be paid over to me and appropriated to my use under my direction,” — constitute a trust to receive the rents and profits of the land, and apply the same to the use of the grantor named in the deed, during his lifetime, and thereafter, to the use of any person during the life of such person.

But this view, I think, is hardly tenable. The provision to collect the rents is merely an incidental power. This was not the primary object of the contemplated trust. It was a mere casual and temporary provision in respect to the use of the property while said lands were awaiting sale. It was not the object or intent of the grantor to create any distinct trust for that purpose. It was at most a mere power.

A provision authorizing a person to collect the rents due a party and pay them to him, would be nothing more than a mere power of attorney, revocable at any time. It would create no trust in favor of the attorney to whom the power should be given. It would be like the ordinary power to an attorney to collect debts, which would give the attorney no beneficial interest in the debts, and would create no trust, more than would be implied in all cases where one person has received the money of another by his authority.

Said subdivision number 3, of said section number 55, does authorize a trust to receive the rents and profits of land, and apply them to the use of any person during the life of such person.

The case in the Matter of the Petition of Livingston presents an instance of such a trust. The deed in that case was made by William Winters, and conveyed the land “ upon the trust to receive the rents and profits thereof to the use of him, the said William Winters, during the term of his natural life.” This was the chief object of the trust. The deed contained no power to sell the land, and the alienation of the same was necessarily suspended during the life of said Winters. This was essential to the object and purpose of the trust. But such was not the object of Mr. Fellows in the execution of the deeds in question; his object was not to keep said property unsold, and to preserve the same during his life, that he might derive his support and maintenance from the income thereof. He directed the property to be sold immediately, and was to receive the whole proceeds of the sales. The whole of such lands might have been sold in his lifetime. This would have defeated the object of the trust, if one had been created or designed merely to secure to himself the income of the property during his life.

When the trust is created for the express purpose of authorizing a trustee to receive the rents and profits of lands, and apply the same to the use of any person during the life of such person, the very object and intent of such trust imply that the lands shall be inalienable during the continuance of such life. The case of Belmont v. O’Brien illustrates the rule. In that case Belmont, in contemplation of marriage, made a settlement in favor of his contemplated wife, by a deed to trustees, in which they were authorized and directed to receive the rents and profits of the estate, and apply the same to the sole and separate use of his intended wife, as if she were a feme sole, during her life. The trustees were authorized to sell any part of said lands, and invest the proceeds of such sale in other real estate, or upon bond and mortgage, or in public stocks. The question in the case was, whether a sale by the trustees under said last mentioned clause of the said deed, would be valid. It was doubted, inasmuch as section 63 of the statute forbids the assignment or disposition of the interest of a person beneficially interested in a trust for the receipt of the rents and profits of land; and by section 65, every sale, conveyance or other act of the trustee, in contravention of the trust, is declared absolutely void when the trust is declared in the instrument creating the trust, whether a sale of the trust .estate or any part of it could be lawfully made. But, using the language of the chancellor, in Hawley v. James, where he held that the “ mere exchange of one piece of property for another by a trustee under a valid power in trust, is not considered as an alienation of the estate or interest of the cestui que trust, or person beneficially interested in the trust estate,” it was held that such sale for the purpose of exchange and reinvestment of the proceeds in other property, under the power given in the deed of the trust, would not conflict with the statute, and could not be regarded as an alienation of the trust estate. A sale, in such a case expressly authorized in the deed of trust, was regarded as an act in furtherance, and not in contravention, of the object of the trust. It was a sale to preserve or improve the estate, or to increase the fund, or keep it from diminution or loss. Such a sale would be clearly admissible, and would not be an alienation of the estate, in conflict with the statute or the intent and spirit of the trust. But a provision in a deed, authorizing and directing a sale of the whole estate absolutely, without any provision for the preservation of the proceeds, or their reinvestment, or their perpetuity in any shape, would be in clear conflict with the statute, and repugnant to all idea of .a trust in such lands to receive the rents and profits, etc.

The provision in the deeds in this case, directed the sale of the whole estate, and made no provision for the reinvestment of the proceeds in other lands, or for their preservation in any way whatever that looked to the maintenance of them as a trust estate, or the proceeds of trust property, or the continuance of the trust for the life of the beneficiary of the trust.

The object of the legislature, in allowing express trusts to be created to receive the rents and profits of lands and apply them to the use of some beneficiary, as was well said by Senator Young, in Coster v. Lorillard, was “ to enable provisions to be made for individuals destitute of the will, discretion or power to manage property for themselves.”

In .such case a trust term is necessarily created for the life of the beneficiary, or for some shorter period. This involves a suspension of the power of alienation during such term, in the very nature and character of the trust, and to effectuate its object. In such a case, the whole scope of the trust has respect to the rents and profits, which can only arise from the continued use and occupation of the land. The grant in such case would speak of leases and terms and tenants, and not of sales or deeds, or the avails of sales. The lands described in or referred-to in these trust deeds, were scattered over the States of Few York, Pennsylvania, Michigan, Wisconsin, Indiana, Ohio, Illinois and West Virginia, and'were, doubtless, mostly wild lands, and utterly unproductive, although I do not see as there is any particular proof on the subject in the case. The doctrine of the cases, in respect to the inalienability of the estate so held in trust, has respect to the preservation of the trust estate or property, during the continuance of the term, or period, for which the trust was created. When • the trust is to receive the rents and profits during the life of a person, the doctrine means that the trust property must not be alienated during the life of the beneficiary, so that he may have and enjoy, without risk or contingency, the fruit of the trust. If it had been the purpose of Mr. Fellows to create a trust estate to provide for his support during his life, it would be repugnant to such object to allow the whole estate to be sold during his life. It is doubtless true, that a grant or devise to receive the rents and profits of an estate, may contain a provision for the termination of the trust, or the expiration of the trust term. Such was the case of Marvin v. Smith. In that case, one Smith granted certain lands to one Bennet, upon a trust to receive the rents and profits, and appropriate them to the sole and separate use and benefit of said Smith’s wife during her life, with remainder to her heirs. The deed also contained a provision that said trustee, whenever the wife of said grantor should desire a sale or mortgage of said land, or any part thereof, then the said trustee should sell or mortgage according to her directions, and pay over the proceeds to her, or reinvest the same according to her directions. The primary object of this deed was to create a trust to receive the rents and profits of the land, and apply the same to the use of Mrs. Smith, during her life, and a trust term for her life was created for that purpose; but the provision allowing a sale or mortgage, coupled with it a clear special power in trust, making it the duty of the trustee to sell upon the direction of the appointee of the power, and thus close the trust.

An express trust to sell land is valid as a power under the express provisions of section 58 of the statutes providing that when an express trust shall be created for any purpose, not enumerated in said section 55, no estate shall vest in the trustee; but the trust, if directing the performance of an act which may lawfully be performed under a power, shall be valid as a power in trust.

The deeds set out in the case did not create a valid trust to sell lands, under the first subdivision of section 55, for the benefit of creditors; they contained no provision in respect to creditors or debts, except in the provision in the supplementary deed, directing distribution of the remainder of his estate, after his decease, after the payment of his debts.-

It seems to me quite clear, therefore, that no estate was created or vested under the clause of the statute referred to, “ to receive the rents and profits, etc., and pay them to the grantor during his life.” The provision in the deed is “ to sell the land.” This was the primary, main object and intent of the trust specified in the deed; and for such purpose no valid trust could or can he created under the statute. The trust attempted to be created in this deed for that purpose, is therefore clearly void, and no estate passed by the deed to the plaintiff.

I concur entirely with the views expressed by Judge Miller in Fellows v. Heermans, on this point: that “ whenever the principal object of the trust is to sell land and pay over the avails, the authority to rent them in the meantime cannot take the case out of the statute.”

The plaintiff at the trial showed no legal title to the lands in dispute, and was, therefore, necessarily and properly nonsuited.

The motion for a new trial should, therefore, be denied.

Present—Mullir, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

       1 Revised Statutes, article 2, part 2, § 45, p. 727.

      34 N. Y., 556.

      Lang v. Ropke, 5 Sandford S. C., 369; Kane v. Gott, 24 Wend., 662; Boynton v. Hoyt, 1 Denio, 57; Hawley v. James, 16 Wend., 166.

       12 N. Y., 396.

       5 Paige, 444.

      14 Wend., 365.

       56 Barb., 600.

       Hotchiss v. Elting, 36 Barb., 46.

       4 Lansing, 254.


author: E. Darwin Smith, J.:

text:
    JOHN HEERMANS, Appellant, v. S. STEWART ELLSWORTH, Respondent.

      Debtor—paying debt to Ms creditor—presumption in his favor as against assignee of the debt—Burden of proving notice of assignment—Deed conveying personal property in trust—when revocable as power of attorney.

    When a debtor pays Ms debt to Ms creditor in person, the presumption is in Ms favor that he paid it properly and lawfully.
    The burden in such case is with the assignee of the debt to show that it was unlawfully paid after notice.
    A deed conveying all the real and personal property of the grantor, with directions to the grantee therein named to sell the lands and collect the debts due to the grantor, and to pay over the proceeds under the instructions of the grantor, so far as they relate to the personal property, has no other effect than a simple power of attorney, and may be revoked at the pleasure of the grantor.
    Appeal from a judgment in favor of defendant, entered at the Steuben Circuit.
    The action was brought by the plaintiff, as trustee of the estate of Joseph Fellows, -to recover for money loaned by Fellows to the defendant. The defense set up was payment to Fellows.
    The plaintiff claimed title under deeds from Joseph Fellows. The plaintiff put in evidence a deed to him, dated on said tenth day of October, in which said Fellows conveyed to him all his real and personal estate in the States of New York, Pennsylvania, Michigan, Wisconsin, Indiana, Ohio, Illinois and Western Virginia, as and for the purposes therein specified. Said deed had the provisions following: “ Provided, always, that the said Heermans shall sell the said granted lands by retail for the best prices that can be got for the same, and convey them in fee simple to. purchasers with covenants of warranty binding my heirs to warrant and defend the title to the lands so to be sold and conveyed; and until such lands shall be sold as aforesaid, he shall rent such of them as can be rented for the best prices that can be got. He shall collect all debts owing to me, and execute deeds as aforesaid for all lands now under contract of sale on payment of the debts on them respectively. The avails of said real and personal estate shall be paid, distributed and disposed of as follows: First. To defray the expenses of this trust, to wit, five per cent commissions on all moneys received and paid out, and all necessary and reasonable expenditures and charges in and about the execution of the trust, including local agencies. Secondly. During my life the residue of all moneys received shall be paid over to me, or appropriated to my use under my direction. Thirdly. After my decease, and after the payment of all my just and legal debts, and the expenses of the trust aforesaid, the residue shall be de distributed as directed in a writing supplementary to this deed to be executed by me hereafter; or in case such writing shall not be executed, then the residue shall be distributed to my heirs according to the laws of the State of Sew York.”
    The plaintiff also gave in evidence a supplementary deed from said Fellows to him, dated Otctober 15th, 1868, which, referring to the above named deed and writing supplementary thereto, directed the said plaintiff, after said Fellows’ decease, to distribute the estate left after payment of debts and expenses, among certain persons therein named, and pay certain annuities to other persons therein named, all payable from the day of his decease during their natural lives.
    The cause was tried at the circuit in Steuben, in April, 1874, and a verdict rendered for defendant. Judgment was perfected upon the verdict, from which the plaintiff appealed to this court.

      Brown de Hadden, for the appellant.

      George B. Bradley, for the respondent.
   E. Darwin Smith, J.:

This case comes before us upon exceptions taken during the trial, and presents some points not embraced in any other of the various cases arising under the trust deeds from Joseph Fellows to the plaintiff, heard and submitted to us at the General Term. This action was brought to recover a balance claimed to be due the plaintiff, as trustee, etc., for money loaned by Mr. Fellows to the defendant, and which the defendant had in fact paid to Mr. Fellows in person, after the execution of said trust deed. The plaintiff claims that such payment was unauthorized, and was made with or after notices of the execution and delivery of such deeds. This was the chief question of fact litigated at the trial, and the only one sub Knitted to the jury. The counsel for the plaintiff requested the judge to charge the jury, that the burden of proof was upon the defendant, to show that the payment was made without notice and in good faith. The court refused so to charge, and the plaintiff’s counsel duly excepted; and he excepted also to the charge on this subject as made, in which the learned judge had charged that the burden of proof upon this point was upon the plaintiff.

The charge of the learned judge was clearly correct. When a debtor pays his debt to his creditor in person, the presumption is in his favor, that he paid it properly and lawfully. The burden in such case, is with the assignee of the debt or demand, alleging that it was unlawfully paid, and, after notice of the assignment, to make proof of such allegations. The affirmative of such an issue, rests upon the assignee who purchases a chose in action not negotiable. Until notice is given of the assignment of such chose in action, the debtor may always treat with and pay his original creditors.

The fact of payment, the defendant in such case must establish. On this point he holds the affirmative, but upon the allegation that he made such fraudulently, and after notice of the assignment of the claim or demand, the party making such averment must prove it. The onus is upon him. The substance of the allegations to be tried, determines upon whom rests the burden of proof.

The defendant’s counsel offered in evidence a deed, or instrument in writing, under the hand and sea.1 of Mr. Fellows, dated December, 28, 1868, and served upon the plaintiff about January 1, 1869. The plaintiff’s counsel objected to the reception of such instrument in evidence as immaterial. The objection was overruled, and the plaintiff’s counsel duly excepted. This instrument, in express and explicit terms, revoked and withdrew each and every of the deeds in trust above mentioned, and all powers and authorities in and by them, or either of them, vested in any party, referring to the two deeds executed by said Fellows, dated October 10 and 15, 1868.

I cannot see why this instrument was not admissible in. evidence. What its force and effect may be is another question. That was for the court to decide, after it was produced and proven, and read ' in evidence. If this instrument is valid, as a deed of revocation of the powers of the plaintiff under said trust deeds, it is necessarily a complete defense in this action. The defendant settled his account with Mr. Fellows, and paid the balance of it in 1869, and -long after the execution and delivery of said deed of revocation.

■ So far as this deed or instrument of revocation relates to the personal property of Mr. Fellows, I do not see why it does not entirely operate to revoke all the powers conferred upon the plaintiff by. the deeds of the 10th and 15th October, 1868. Whether those deeds created a valid express trust, or power in trust, in respect to the real estate, they could operate only as a mere common law power of attorney to collect his debts and pay over to him the proceeds. This power is not affected by the provisions of the Revised Statutes, relating to uses and trusts and powers. These provisions of the statutes only apply and relate to real estate. On this point, and so far as relates to the personal property of Mr. Fellows, I agree with the opinion of Judge Miller, in Fellows v. Heermans, that the deeds referred to, have no other force and effect than a simple power of attorney, which could be revoked at the pleasure of Mr. Fellows, at any time.

The provisions in the statutes, in relation to powers in trusts, that every such trust is irrevocable, unless an authority to revoke it is granted or reserved in. the instrument creating the power, do not apply to the power to collect debts, or such a power as is conferred in these deeds in relation to personal property. In the various cases arising under said deeds, heard and submitted at the last term, each ease has been necessarily considered and decided upon its own facts. In none of them, except in this case as above stated, and the case of Heermans v. Robertson, which was an action of ejectment, has the validity of these deeds been called in question. The several cases have been decided upon the assumption or claim of Heermans, that he had valid title, or at least a power in trust ' under said deed, with full power and authority to convey a valid title.

None of the exceptions taken at the circuit in this case, were well taken, and the judgment there rendered should be affirmed.

Present — Mullet, P. J., Smith and Gilbert, JJ.

Mullet, P. J., concurred in the result, but doubted upon the point whether a trust did not exist in respect to'the personal property, which was irrevocable by Fellows.

Judgment affirmed.

       Field v. Mayor of New York, 2 Selden, 188; Anderson v. Van Alen, 12 Johns., 343; Briggs v. Dorr, 19 id., 95; Wilkins v. Batterman, 4 Barb., 50 Meghan v. Mills, 9 Johns., 64.

       Hollister v. Bender, 1 Hill, 153.

       4 Lansing, 259.


text:
    CHARLES SHIELDS, Respondent, v. THE NIAGARA SAVINGS BANK, Appellant.

      2 B. 8., chap. 7, art. 4, §54—Jurors — summoning of talesmen — chap. 210 of 1861 —chap. 409 of im — chap. 16 <1871.
    The provision's of the Revised Statutes (§54, art. 4, chap. 7 of 2 R. S.), only authorize the summoning of the talesmen for a single cause, ready and moved for trial. They do not authorize the summoning of jurors to serve for the whole term, and this statute is so far modified by chapter 210 of the Laws of 1861, that the summoning of talesmen from the bystanders can only be done by consent of the parties; otherwise the panel of jurors must he filled by drawing from the box of jurors of the city or town where the court is held. The act of 1861 is not affected by chapter 409 of 1870, or chapter 16 of 1871.
    This is an appeal from an order at the Special Term denying a new trial, and from the judgment there rendered.
    This action was brought upon two certificates of deposits, which the plaintiff alleged were made by one Morgan Van Waggoner, in the defendant’s bank, a corporation duly chartered by the legislature of the State, and doing business at Lockport.
    The certificates of deposit were as follows :
    “ $100.
    “No. 1909. Banking House of D. Morse & Co.,
    “ Lockport, N. V., October 26, 1867.
    “Morgan Van Waggoner has deposited in this bank one hundred dollars to the credit of himself, and payable to his order only on the return of this certificate, in current bank notes.
    “ $100.
    “(Signed) DANIEL MORSE & CO.”

      The other certificate was in the same form, except it was for $150, and was dated September third, and was No. 1893. These certificates, before the commencement of the action, were duly indorsed, and sold and delivered by said Waggoner to the plaintiff.
    On the trial it was proved that Gr. W. Jermain was president of said bank at the date of the said certificates, and Daniel Morse was its secretary and acting financial officer. That at the same place, the said Morse also carried on a private or individual insurance, brokerage and banking business, under the name of Daniel Morse & Co. That over the door and window of said bank was "a sign, in large letters: Niagara County Savings Bank; and that on the window curtain, on the inside of the window, was a sign indicating the private or personal business thefe done by said Morse. It appeared on the trial that said Morse had failed and gone into bankruptcy before the transfer of said certificates to the plaintiff, and that said Waggoner had duly proved his debt for the amount of said certificates in such proceedings, and had received a dividend of $38.34 from the assignee in bankruptcy of said Morse.
    Upon the impanneling of the jury, on the trial, it appears that ten of the jurymen were talesmen, summoned by the sheriff under an order of the conrt, made on the first day of the court, which, it appears from the minutes, commenced on the first day of September, and this trial took place on the sixth of the same month; that these ten jurymen were summoned and sworn as talesmen, and the name of not one of them was drawn from the box containing the names of jurors for said county. The counsel for the defendant challenged these ten jurors, for the reason that they were not drawn from the box from which the names of petit jurors are drawn on the regular panel. The challenge was overruled, and the defendant’s counsel duly excepted.
    The defendant’s counsel, at the close of the plaintiff’s case, and also at the close of the trial, moved for a nonsuit, on the grounds: 1st. That there was no sufficient evidence of any deposit "by Wag-goner with the defendant as claimed; 2d. That Waggoner having proved his claim against Morse in bankruptcy, the demand was extinguished as against the defendant, if it ever existed; and 3d, that the plaintiff had proved no demand of the defendant before the suit was brought. These motions were respectively denied, and the defendant’s counsel duly excepted.
    The jury found a verdict for the plaintiff for $301.57, upon which judgment was entered up, from which the defendant duly appealed to this court.

      L. F. & 6r. W. Bowen, for the appellant.

      B. J. Ehmting, for the respondent.
   E. Darwin Smith, J.:

The first exception for our consideration, relates to the impanneling of the jury.

Ten of the jurors drawn for the trial of the cause were talesmen, not drawn from the box containing the names of petit jurors for said county, but summoned by the sheriff, by the order of the court, to serve for said circuit. They were drawn on the first day of the court, and their names placed in the box to serve for the term, and not for the trial of this particular cause. The court began on the first day of September, and this cause was tried on the sixth.

I cannot see how the regularity of the proceedings, in impanneling the jury, can be upheld. A talesman is a juror summoned to fill up a panel, for the trial of a particular cause. The court, under the Revised Statutes, could supply the deficiency in the panel by order made at the time. It could, whenever a sufficient number of jurors duly drawn and summoned did not appear, and could not be obtained to form a jury, direct the sheriff to summon from the bystanders, or from the county at large, so many persons qualified to serve as jurors, as should be sufficient.

This provision only authorized the summoning of talesmen for the single cause ready and moved for trial. It did not authorize the summoning of jurors too fill the panel, to act or serve” for the whole circuit. And this provision, in respect to talesman, is clearly repealed or modified by the act of 1861, entitled “An act to amend the Revised Statutes in relation to trials by jury,” so far that the summoning of talesmen, by order of the sheriff, from the bystanders or from the county at large, can only he done by the consent of the parties to the action. Otherwise, the, panel in such a case can only be filled by drawing from the box of jurors of the city or town where the court is held, kept and produced for that purpose, pursuant to the provisions of said act. This act of 1861 expressly repeals all acts and parts of acts inconsistent therewith.

This provision has, and can have, no other operation or effect than to repeal said section 54 of the Revised Statutes, so far as it provides or allows the summoning of jurors from the bystanders, or from the county at large, by the sheriff, to serve as jurors in any court except as above stated. The object of this statute, and the mischief it was intended to remedy, was-to prevent sheriffs from filling up the panel of jurors, when there was a deficiency in the regular panel, from a class of professional jurors, or from persons standing by in the court rooms, ready to he summoned and called for such purpose.

This statute has no application to criminal trials. In the case of The People v. Mallon, it was held that section 3, of title 5, chapter 11, part 4 of the Revised Statutes, page 733, providing for the filling of the panels for the criminal trials when twenty-four names of jurors duly drawn did not appear, was not repealed, and was not affected by the statute of 1870.

This act and the act of 1871 provide for procuring additional jurors for the Circuit Courts and Courts of Oyer and Terminer, by order directing the drawing of the names of such required jurors from the county box containing the names of petit jurors for said county. These acts do not affect the act of 1861, which still remains in full force.

The challenge of the ten jurors at the circuit was valid, and the exception to the decision overruling such exception, well taken.

But upon the merits I think the plaintiff ought to have been nonsuited. The plaintiff showed no tight of action. The certificates upon their face, in form and legal effect, were contracts between Yan Waggoner and Morse. If by reason of any fraud of Morse or the bank, the certificates were put in their present shape, and the name of Daniel Morse & Co., signed thereto was substituted for that of the proper officer of the defendant’s bank, to bind said bank upon the face of the certificates, Yan Waggoner was bound to act promptly in disaffirming said contract, and demanding his money or a certificate proper in form to bind the bank. The certificates were given and dated, one September 3, and one October 26, 1867. Yan Waggoner could read and write, and was bound to look at and read the certificates taken, and must be presumed to have done so at the time.

On the 7th of October, 1868 Yan Waggoner proved his demand on said certificates against said Morse, in bankruptcy, making affidavit that said Morse was justly indebted to him in the amount of said certificates; and on the 28th of April, 1873, received a dividend upon such demand, in the sum of $38.34.

After this delay in seeking to disaffirm the contract, and after distinctly affirming it by proving the certificate in bankruptcy as a debt of Morse, and receiving a dividend thereon from the assets of said Morse from his assignee in bankruptcy, it seems to me it is too late to seek to disaffirm the contract made by and in said certificate between said Yan Waggoner and Morse, and seek to charge the bank as the real debtor; and that all claim upon said certificates, as against said bank, is waived and relinquished.

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

Present — Mullin, P. J., Smith and Gilbert, JJ.

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

       Section 54, art. 4, chap. 7, p. 437 of 2 Revised Statutes,

       Chap. 210, Session Laws, p, 528.

       3 Lans., 224.

       Chapter 409, page 952.

         Chapter 16.


author: E. Dakwin Smith, J.

text:
    WILLIAM RICH, Respondent, v. THE NIAGARA COUNTY SAVINGS BANK, Appellant.

      Wi'audulent representations—contract induced by—right to rescind—Credit of interest takes principal out of statute of limitations.

    A party induced to enter into a contract by fraudulent representation's, has, upon discovery of the fraud, the right, if exercised promptly, of rescinding the contract.
    A credit for interest on a sum of money is a sufficient admission of indebtedness to take the entire sum out of the statute of limitations.
    Appeal from a judgment in favor of the plaintiff, entered at the Niagara Circuit, and from an order denying a new trial.

      The action was for money alleged to have been deposited in defendant’s bank. The cause was tried at the Niagara Circuit, in September, 1813, and a verdict was rendered for the plaintiff for $149, upon which judgment was duly entered, and defendant thereupon appealed to this court upon a case with exceptions.
    The defendant carried on business at Lockport, Niagara county. During that time Daniel Morse was the secretary and principal financial officer of defendant, and transacted its financial business and received all the deposits made with defendant.
    In the same room, over the same counter, and at the same place at the same counter, said Daniel Morse carried on a private or individual insurance, brokerage and banking business, under the name of Daniel Morse & Co., which was carried on by Morse personally, and by his clerks, who also did the business of the defendant.
    The principal question in the case, was, whether certain money deposited by plaintiff, was deposited with Morse & Co., or with the defendant.

      L. F. ds G. W. Bowen, for the appellant.

      B. J. Hunting, for the respondent.
   E. Dakwin Smith, J.

The views expressed in the opinion in the case of Shields against this defendant, decided at this term, so far as the same relates to the merits of the action, are in a large degree applicable to this case. The plaintiff should have been nonsuited at the circuit. The complaint was entirely unproved. The plaintiff did not establish that he ever deposited any of the money for which this action was brought, in the defendant’s bank, or that the defendant ever received a cent of his money. His proof, on the contrary, clearly showed that said moneys were in fact deposited with Daniel Morse & Co. His bank book was headed Daniel Morse & Co., with Wm. Rich.” Morse received his money in fact, and credited it in his pass-book, and paid his checks. There is not a particle of proof that any of these transactions were, in form or name, with the defendant’s bank. No fraud or deception is charged' in the complaint as against the defendant, and there is no pretense for the recovery of this money, as against the hank, upon the basis of any fraud in fact, or any imposition practised by the bank or its officers upop the plaintiff. Upon the face of the transaction, the plaintiff dealt and contracted with Daniel Morse. It is true that said Morse was an officer of the defendant’s bank, but it is also true that he carried on openly and notoriously a separate private banking business, at the same place, under the name and style of Daniel Morse & Co. The pass-book given to and received by the plaintiff, and in which his account of the money deposited, and checks paid, were kept, bad indorsed upon the outside of the book, and printed in large letters: Banking Office of D. Morse & Co.” The entries in this pass-book of debits for deposits, are respectively equivalent, in legal effect, to a receipt or certificate of deposit of the separate amounts, which, like a promissory note payable on demand, bound Morse to pay the amount of such deposits upon request. The first entry in this pass-book, on the debit side, is dated March 12, 1866, for thirty dollars, and this entry is followed by four other debits in that year; by six others in the year 1867, and two in 1868, with credits for checks and other items in the same years, on the other side of the account. These entries were necessarily all made on the production of the pass-book, and were, made by Morse. The plaintiff could read and write, and must be presumed to have read the entries in his pass-book, and the indorsement upon the cover of the book. He knew he was dealing with Morse, in fact, and that he deposited with him his money and took his receipt thereof in said pass-book. He knew that Morse was doing a banking business, and had known him and dealt with him for seven or eight years; and he testified that he always supposed that his business was attending to the insurance business, collecting notes, and buying notes and receiving depositsand he also testified that he did not know anything about there being a savings bank, except seeing the sign; that he saw that sign there, and the sign of D. Morse & Go., under it. It does not appear that he ever checked on the savings bank, or did any act professedly with it, or in its name. Morse, it appears, failed in April, 1868, and left the place. Plaintiff applied to him some two weeks before he left for payment of his money, and Morse promised to pay him in a week.

While in all these transactions, in form and in fact, Morse was the debtor of the plaintiff, and so treated and recognized by him, yet, I think, when, in April, 1868, Morse failed, and the plaintiff found that he and the savings bank were different persons, and that he had no contract with the bank, if he had immediately demanded his money of the bank, or a certificate or voucher admitting the receipt of his money by the bank, and disaffirmed the contract with Morse, and claimed that he had been deceived and imposed on by him, and asserted that he intended to deposit his money in the said savings bank, and supposed it was so deposited when he left it with Morse, and that the pass-book was given by and for the bank, and in its customary way of doing business, I think the bank, if the plaintiff could have proved these facts, might have been held responsible for such moneys as the principal debtor. He would have established a clear case of fraud by an officer of the bank.

In Coleman v. The First National Bank of Elmira, the plaintiff received in the bank aocertificate of deposit, signed nominally by the president of said bank, unofficially. As soon as the plaintiff found that it was not ’the certificate in proper form to bind the bank, he returned it to the bank, and disaffirmed the arrangement ' as formally made by the certificate, and demanded his money or a proper voucher. This was a clear case of fraud, as held by the court.

Hpon the assumption before mentioned, that the plaintiff had been misled and deceived by Morse, he . had the election, I think, to consider the defendant or Morse as his debtor for the money so deposited; but, as in all cases of fraud when such right of election exists, he would be bound to act promptly in disaffirming the formal contract with Morse, if he sought to hold the bank as the principal debtor. Judge Grover states the rule, as generally held in such cases, in Curtiss v. Nowell as follows : “ It is a settled principle that a party induced to enter into a contract by fraudulent representations has, upon discovery of the fraud, the right, if exercised promptly, of rescinding the contract,” etc. In Masson v. Bovet, Judge Beardsley, said: If a party defrauded would disaffirm the contract, he must do so at the earliest practicable moment before he takes any step in affirmance of it, for this will waive the fraud.

_ .This right of election to disaffirm the contract as to Morse, and hold the bank as the principal debtor, was not exercised promptly after the discovery by the plaintiff that the pass-book was not given by, and did not bind, the bank. He did not immediately elect to disaffirm said contract by any step, act or declaration, if he ever did, before or until he signed a check for the balance of his money and interest so deposited with Morse, as shown by said pass-book; which check is dated, and was presented, and -payment demanded thereon, at the defendant’s bank, on the 14th day of January, 1873.

In the meantime, during this period from April, 1868, to January 14, 1873, the plaintiff treated with Morse, and recognized him as his debtor for such deposits; demanded payment of him, and received two payments from him, on such account at different times, in response to repeated requests for payment. After these repeated acts of affirmance of the contract with Morse, it was too late for the plaintiff to disaffirm the contract, when he drew the check aforesaid, in January, 1873. He had lost his right to disaffirm the contract. He had made his election to hold Morse as his debtor, and the election, once made, was final and conclusive, This is not like the case of a factor or agent purchasing goods for an unknown principal. In such case, generally, it is well settled that the vendor may recover the price of the principal, when discovered. In such case the principal is liable for the goods, because he has received them and had the benefit of the purchase; and in this class of cases, when the vendor, with full knowledge of the facts, elects to hold the agent for the debt, he will be bound by such election, and will have abandoned his right to proceed against the principal.

In respect to the exceptions in the case, none of them, I think, are well taken, except the one taken to the charge upon the question of the statute of limitations. It was not error to admit the pass-book- in evidence. ' It was not such a contract as to preclude parol evidence in regard to all the plaintiff’s transactions which tended to bind the bank or show the conduct of its officer with the plaintiff. That rule only applies as between the parties to a contract, and does not then apply to receipts.

In respect to the statute of limitations, the judge in his charge said: “This suit was commenced January 14, 1873; six years .previous to that would be January 14, 1867; and here was a credit on the book of interest to April 4, 1867; so that here was an entry made within six years of the time .the suit was commenced; ” and this entry was held by the judge sufficient to take the whole account out of the statute. This credit of $22.49, for interest on the previous entries on debit side in the pass-book, doubtless was an admission of- indebtedness by Morse, at that point of time, of the items of the account, and was equivalent to a payment of interest by him on said items, to that amount. But this credit or payment was not made by the defendants. They had received none of these deposits; none of them were credited on their books, and all of the entries relating to these moneys, were in the private books of Morse. The entries in this pass-bpok created and constituted a contract upon its face between him and the plaintiff, but not as to the bank, and did not bind the bank as matter of contract; and these entries could not charge the bank with an admission of indebtedness, or of payment not in fact made by it, or payable from its funds. The exception to this part of the charge, therefore, is well taken.

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

Present — Mullin, P. J., Smith and Mobgah, JJ.

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

       See page 477.

       53 N. Y., 390.

       39 N. Y., 214

         1 Denio, 74.

       See also Stevens v. Hyde, 32 Barb., 178, and 2 Denio, 138.

       Firemen Ins.Co. v. Lawrence, 14 Johns., 55.

         Paterson v. Gandassequi, 15 East, 62; Pentz v. Stanton, 10 Wend., 271.

       Same case and also Addison v. Gandassequi, 4 Taunton, 574; Thomson v. Davenport, 9 Barn. & Cres., 78.

         Barry v. Ransom, 12 N. Y., 464; Ford v. Williams, 21 How. (U. S.), 287.


text:
    EPHRAIM F. CURTISS, Appellant, v. JOHN AYRAULT, Respondent.

      Running water — diversion of—right of land owner to drain off surface water — Maps — when admissible in evidence.

    This action was brought to restrain defendant from unlawfully diverting the water from a ditch, called the Cove ditch, running through the lands of the parties to this action; the plaintiff having acquired a right to have the said ditch kept open, and to have the water continue to flow therein. Prior to the commencement of this action, the defendant had dug a ditch upon his own land, which prevented the surface water therein from running into the Cove ditch, as it had been accustomed to do. Held, that, if the defendant had dug the ditch simply to relieve his land from the water which accumulated thereon and was left there to its injury, in consequence of the neglect of the plaintiff and others to keep the Cove ditch in proper repair, he could not he held to have wrongfully diverted the water from the said Cove ditch.
    Maps and plats are admissible, when referred to in deeds, as original evidence, and also to exhibit the present visible condition of the premises in controversy, and to explain, illustrate and apply testimony.
    An appeal from an order of the Special Term, denying a motion for a new trial.
    The action is for the wrongful diversion of the water of a stream, called Indian creek, from plaintiff’s premises, commenced in a Justice’s Court, and removed into this court upon a plea of title being interposed before the justice. It was first tried at the circuit, in Livingston county, in January, 1868, when the plaintiff had a verdict, which was set aside by the General Term of the seventh district. The cause was retried in April, 1869, when a verdict was ordered for the defendant, which was affirmed at General Term, and judgment ordered for the defendant, from which the plaintiff appealed to the Court of Appeals, where the judgment was reversed, and a new trial ordered. The cause was again tried in May, 1873, and a verdict rendered for the defendant; whereupon the plaintiff moved for a new trial, at the same term, upon the minutes of the proceedings on such trial, which was denied. From the order denying such new. trial, the plaintiff appealed to this court.

      & Hubbard and A. J. Abbott, for the appellant.

      Q. F. Hanforth, for the respondent.

       Curtiss v. Ayrault, 47 N. Y., 73.

   E. Darwin Smith, J.:

The chief point presented on the argument, and in the points of the plaintiff’s counsel, is founded upon his exception to the refusal of the circuit judge to direct a verdict for the plaintiff, at the close of the evidence, as requested. The grounds stated by the counsel, and upon which the request is based, are, in substance, clearly correct, but they do not cover the whole case. In the charge of the judge to the jury, such views of the plaintiff’s rights are substantially assumed or held. And the charge, in this particular, is in substantial conformity with the decision of the Court of Appeals on this branch of the case.

The learned judge charged, in effect, that the ditch, called the Cove ditch, having been constructed by Hewbold, the original owner of the whole tract crossed by said ditch, and the same being in existence, and the water of Indian creek flowing therein, in 1849, when he subdivided said tract into four parcels, and sold the several parcels thereof to different persons, the original purchasers from him acquired the right to have said ditch' kept open, and the waters then flowing therein to continue to flow in it as it then flowed at that time in its accustomed channel, and that the grantees of such original purchasers took said land with all the rights of their respective grantors. He then submitted to the jury the question of fact, whether the defendant had diverted the water from such ditch, and advised them that so long as the water flowed therein, in sufficient quantity for any practical purpose, the defendant had no right to do anything which prevented that flow. Did the defendant divert the water ? That was the question put to the jury. It was undeniably proved, and, in fact, admitted, that the defendant had constructed a ditch on his own land, which drained said land, and took the waters of Indian creek off of the same in another direction, being the same waters which formerly ran in said Cove ditch, and which it was originally constructed to carry off to said Cove, on the plaintiff’s land. But it was contended at the circuit, by the defendant, as the judge states the defense on this point, that the flow of the water through this Cove ditch had become obstructed, so that the waters of Indian "creek had ceased to flow where they were intended to flow, and had spread over the defendant’s lands, and had reduced such' lands to practical sterility, by covering them with a marsh. It was in this view of the facts, if so 1 found by them, that the jury were allowed to find that there had been no unlawful diversion of the waters of said creek from the said Cove ditch, by the construction of the ditch so. made by the defendant, and it was, doubtless, upon this ground, that the verdict of the jury for the defendant was based. The action was for the diversion of the water which should have flowed in said Cove ditch, by the wrongful acts of the defendant. If he had done nothing more than construct a ditch to relieve his own land from the water accumulating thereon, and which was left there -to remain to the injury of said land, in consequence of the . neglect of the plaintiff and others interested in the flow of such water in said Cove ditch, to keep the same in proper repair, he could not properly be held to have wrongfully diverted the water from said ditch. This is, in substance, what the judge held at the circuit, and the verdict of the jury was necessarily in affirmance of such view of the facts upon the evidence. The request of the plaintiff’s counsel, that the court direct a verdict for the plaintiff, virtually overlooked, or ignored entirely, the issue arising upon the defense, as thus stated and held by the circuit judge, and subsequently sustained by the jury. Upon this branch of the case; upon the great mass of testimony taken in the case, and more or less material and conflicting; upon the issue really in dispute, I do not think that it was the duty of the judge to take the case from the jury, and think the plaintiff’s exception to his refusal to direct a verdict in his favor, not well taken. In respect to the various other exceptions to the charge, and to the refusal of the judge to charge as requested, and to the omission or exclusion of testimony, they are either not well taken, or so inconsequential that the verdict of the jury might, I think, have been sustained, and this protracted litigation ended, except for one single error, which precludes us from affirming the order of the Special Term. The plaintiff introduced a witness by the name of Joseph W. Holmes, who testified that he was a practical surveyor and engineer, and had recently made a map of the lands, mentioned in the proceedings on the trial, and their surroundings, and of the ditches thereon, and took levels of the ditches, and produced such map and testified that it was a correct map of the lands referred to, and the ditches and water-courses and surroundings, and that such map showed the general features of the said land and the ditches and the streams, etc. This witness gave considerable testimony upon the merits, referring to such map, and explanatory thereof, and of the situation and relative condition of the several parcels of land marked thereon, and of the several ditches upon the defendant’s lands, and respecting the question's and matters in controversy in the action relating to such land and ditches and localities; and quite a number of other witnesses gave like testimony in chief, referring to said map to illustrate their testimony, and corroborative of its correctness as a correct representation of the condition of the localities and other matters delineated therein, after which the plaintiff’s counsel offered it in evidence, and the same was objected to by the defendant’s counsel, as immaterial, and the objection was sustained, and the plaintiff duly excepted.

I do not see how this ruling can be sustained. A large portion of the testimony received in the cause, referred more or less to this map, and to data and marks and figures of measurements appearing on its face, all of which testimony is in a large degree unintelligible without the map. It would be indispensable, I should think, that the map be before the jury, and that the counsel be at liberty to use it and refer to it in argument, and apply and explain the testimony of witnesses by it. Maps and plats are admissible, when referred to in deeds, as original evidence, and they are also admissible to exhibit the present visible condition of'the premises in controversy, and to explain, illustrate and apply testimony, In actions of ejectment, and other actions relating to real estate, and in many other cases, maps are made for use at the trial, and are constantly used at the circuit, and, in most cases, are quite useful, if not actually indispensable, to enable courts and juries to comprehend readily the question in dispute. In such cases when proved to be correct by the surveyor or engineer by whom they are made, they are received in evidence, in connection with the testimony of witnesses, substantially as part of their testimony, and are clearly admissible as explanatory of such testimony. They are received for the consideration of the jury, so far as they are shown to be correct in connection with other evidence, and to enable them to understand and apply such evidence, and not as independent evidence. Such, in substance, was the ruling of the judge at the circuit, who tried the case of Johnston v. Jones, in reference to a large number of maps received in evidence, and used on the trial of that cause, all made by living witnesses, and verified by thend at the trial, as was done by Holmes at the trial in this action.

The ruling was approved by the Supreme Court, H. S., in bank; the said maps all being embraced in the case, and used in the argument.

The exclusion of this map, after so much testimony had been taken in the cause upon the merits referring to it, and which could not be understood without it, we think was clear error, making it our duty to grant a new trial.

The order of the Special Term should therefore be reversed, and a new trial granted, with costs to abide the event.

Present—Mtjllin, P. J., Smith and Gilbert, JJ.

Order reversed and new trial granted, costs to abide event.

       Morris v. Lessee, 7 Peters, 554; Ryan v. Dox, 25 Barb., 446.

       Johnston v. Jones, 1 Black (U. S.), 216.

        Supra.

       1 Black, 222.

         Vide same case, 18 Howard, 150.


text:
    AMANDA McN. STARR, Appellant, v. SAMUEL K. WINEGAR, Respondent.

      Confusion of goods—meamre of damages.

    In the case of a confusion of goods by act of defendant, when the action is for damages, they are to be given to the utmost value the article will bear.
    Where the defendant had mingled plaintiff’s wheat with his own, held, that he was bound to prove the true quantity belonging to the plaintiff, or stand the loss or risk of mistake in the calculation of the jury, resulting from such confusion.
    In cases where an express agreement is proved, it is not admissible for a jury to imply an agreement of the same nature and effect.

      Appeal from a judgment in favor of defendant.
    The action is in the nature of a trespass for the wrongful taking and conveying away and converting to his own use 1,000 bushels of wheat by the defendant, to the plaintiff’s damage of $2,000, as stated,, in the complaint. The cause was tried at the Livingston Circuit, in January, 1873, where a verdict was rendered for the defendant.
    It was proven that the plaintiff was the owner of certain premises in Livingston county, which, on the 30th of January, 1868, she leased to the defendant for one year from April 1st, 1868, with privilege of three, and he kept it three.
    His lease expired, and after its expiration he entered upon her premises, and harvested wheat from twenty-four or twenty-five acres, carried it away, threshed it, and mingled it with his own.
    The defendant claimed that he was entitled to a portion of the wheat that grew on fifteen or sixteen acres of the twenty-four or twenty-five, by virtue of an arrangement with the plaintiff, and that he rented or took the rest of the land on which the wheat grew under an agreement with the plaintiff, by which he was to pay seven dollars per acre for its use.
    The counsel for the plaintiff asked the judge to charge, that if the jury came to the conclusion that there was a contract by which Mr. Winegar was to have the privilege of putting in such an amount of wheat as was equivalent to what was on the ground when he took possession, and no agreement for the residuum, if Mr. Winegar has mingled the two," he must submit to any amount the jury may find. The court declined so to charge, and the counsel for the plaintiff duly excepted.
    The plaintiff’s counsel also excepted to that portion of the judge’s charge which allowed the jury to find the existencé of an implied agreement in this case. Plaintiff moved at Special Term for a new trial upon a case and exceptions, which was denied.

      G. F. Da/nforth, for the appellant.

      A. M. Bwigham, for the respondent.
   E. Darwin Smith, J.:

The chief exception discussed in this case was taken to .the ^ refusa^pf the circuit judge to accede to the request made by the defendant’s counsel at the close of the trial, to charge that if the jury came to the conclusion that there was a contract by which the defendant was to have the privilege of putting in a certain amount of wheat as was equivalent to what was on the ground when he took possession, and no agreement for the residue, if Winegar had mingled the two, he must submit to any amount the jury might find.” The argument of counsel in support of this request, is, that although the jury might find that there was an agreement between the parties, that the defendant should sow to wheat, as much land before the termination of his lease, and harvest it afterward, as had been sown before the commencement of his lease, and afterward harvested by the plaintiff, yet, as this agreement did not apply to all the wheat sown and harvested by the defendant, that the plaintiff was entitled to recover for all the residue taken off, in case the jury should find that it was not sown and taken off under a new and independent agreement, as claimed by defendant. The action was brought for the entire quantity of 1,000 bushels of wheat. The plaintiff had demanded payment for the whole crop of wheat taken off by the defendant, without distinguishing between any parcels, and denied on the trial and contested the defendant’s right to take off any of such wheat. The circuit judge held, in effect, that there was no basis in the evidence, to distinguish between the two parcels of wheat taken off by the defendant under the two contracts set up by him in his defense, and the plaintiff must consequently recover for all or none. It seems to me that this is a mistaken view of the evidence, and of the law applicable thereto. The defendant claimed to sow, under the agreement first made with the plaintiff, fifteen or sixteen acres of wheat, in lieu of the same quantity sown before he took his lease, and that all the land sown to wheat above said fifteen acres, he had rented at seven dollars per acre. The fields of wheat sown and harvested by the defendant, amounted to twenty-four or twenty-five acres. For all the wheat taken off these fields, except the fifteen acres, the defendant had no claim or title, unless he established such new and independent agreement therefor, to pay rent for said land at seven dollars per acre. The wheat taken off the land by the defendant, was all mingled by him, and he could not tell how much came from the fifteen acres, or any particular fifteen acres of said land, or how much from the residue; but he could not deprive the plaintiff of the right to recover for the wheat grown, on nine or ten acres of the rented land, because he had mingled it with his own. That was his fault, if he had no title to such wheat, and the request of the defendant’s counsel, in this view, was a sound and proper request.

The jury had several elements of evidence or data, upon which they could have apportioned the wheat, and determined how much damages the plaintiff was entitled to recover, provided they found that the defendant had established no agreement to sow more than fifteen acres. They had the quantity of land sown with the wheat, the quantity threshed at the barn, which the defendant said was 620 or 630 bushels, and evidence besides, that four loads were drawn away unthreshed, and that these loads would average twelve or fifteen shocks to a load, and a bushel to a shock. The defendant said also, that there were about 500 bushels in all after it was cleaned, and the value was two dollars a bushel. From these data I have no doubt, assuming that the defendant was entitled to the wheat growing on fifteen or sixteen acres, and no more, that a jury of farmers in Livingston county, where this cause was tried, would very soon have determined how much the plaintiff was entitled to recover for the wheat grown on the remaining eight or nine acres, if the plaintiff was entitled to recover for such wheat. But if there was any uncertainty in respect to the quantity for which the plaintiff was entitled to recover upon this assumption, the defendant, having caused such uncertainty by mingling the plaintiff’s wheat with his own, was bound to prove the true quantity belonging to the plaintiff j or stand the loss or the risk of mistake in the calculation of the jury resulting from such confusion of the wheat. And this was, in substance, the proposition which the counsel for the plaintiff requested the judge to submit to the jury, and the same was so understood and construed by him in his opinion denying the motion for a new trial. The rule in respect to the confusion of goods assumed in the request, is so stated by Chancellor Kent, in Rcurt v. Ten Eyck, and the same rule is asserted in Lupton v. White, and when the action is for damages, the damages are to be given to the utmost value the article will bear, In that case Judge Rtjggles, cites with approval the case of Bullock v. Dibler, where the plaintiff had mixed his own hay with the defendant’s, and the latter had taken and carried away all the hay thus intermixed. It was held that, the plaintiff having intermixed the hay, the defendant should not he guilty for any part of the hay, for by the inter-mixture, he should not be prejudiced in taking the hay.”

The exception to that part of the charge which instructed the jury that they might find an implied agreement in respect to the sowing, reaping and taking away either part of the said wheat, I think was also well taken. In the absence of -any express agreement, claimed or proved, in many cases an agreement may be implied from circumstances, as stated by the judge, but, as in this case, where an express agreement was claimed and proved, it can hardly be admissible or strictly correct for a jury to imply an agreement of the same nature and effect. The proof in this case, upon which the jury were advised they might imply an agreement, was all properly received, and admissible as corroborative of the defenddant’s testimony, asserting and tending to establish an express agreement. The defendant had testified positively to an express agreement made between him and the plaintiff, in respect to the sowing of the two parcels of land, and, if the jury would not believe him on this point with the evidence so given in corroboration of his testimony, I cannot see upon what principle on such evidence separately considered, or otherwise, they could imply an agreement of the same nature, and to the same effect. Ho error I think, was committed in the ruling, in respect to the other exceptions stated in the case.

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

Present—Mullin, P. J., Smith and Gilbert, JJ.

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

       2 Johns. Chy., 108.

       15 Vesey, 440.

         Armory v. Delamirie, 1 Strange, 505; Rockwell v. Saunders, 19 Barb., 473, charge of Cady, J.; Silsbury v. McCoon, 3 N. Y., 389.

      Popham, 38.


text:
    JOEL P. MILLINER, Appellant, v. CHARLES LUCAS, Respondent.

      Statements of vender of personal property—inadmissible against Ms vendee— When judgment not reversed, for improper admission of evidence.

    The statements of a véndor of personal property are inadmissible as against a. party claiming such property from him, except in cases where such last named party really defends the action for the benefit of such vendor.
    A judgment will not be reversed for the admission of improper, irrelevant, immaterial or cumulative testimony, when abundant competent evidence was given to sustain it, and the court can see that it has occasioned no injury to the party complaining.
    Appeal from a judgment of the County Court, reversing the judgment rendered by a justice.
    This action was brought to recover the price of a quantity' of potatoes, sold and delivered to the defendant. The plaintiff claimed that the potatoes were his property, and the defendant claimed to have purchased them of one - Slocum, who raised them on the plaintiff’s land. The justice found for the plaintiff, and rendered judgment in his favor for §101.84, besides costs. The defendant appealed to the County Court, where the judgment was reversed upon the law.

      A. P. Butts, for the appellant.

      H. J. Thomas, for the respondent.
   E. Darwin Smith, J.:

The judgment rendered by the justice upon the facts, was clearly warranted by the evidence, and could not be disturbed for any error in that particular.

The only ground of error stated in the notice of appeal, which I think is sufficient to raise any valid ground for the review of the case, and' upon which the judgment was doubtless reversed, is the fourth specification: that the justice erred in overruling the objection by the defendant’s counsel to the question put by the plaintiff’s counsel, asking the witness to go on and state what the arrangement was between plaintiff and Slocum, asked of plaintiff himself, and the same objections to the testimony of Allen Marshall, Hiram Doty and others, on the subject of Slocum’s admission of what the arrangement was, etc.

So far as the defendant’s objection related to the testimony called for by the questions put to the witness, it was clearly not well founded. The question at issue was: in whom was the property in the potatoes ? They were planted on the plaintiff’s land by Slocum, and it was clearly proper for the plaintiff to show the contract between him and Slocum, in regard to the planting, cultivation and marketing of said potatoes. This was part of the res gestee, and this was all that was called for by, or stated in answer to, the question put to the plaintiff. It was: What was the conversation or arrangement with Slocum about the potatoes, and how did the potatoes belong to you ?

The testimony of the witnesses Marshall and Doty, stand upon different grounds. They were asked whether they heard a conversation between plaintiff and Slocum, and they respectively, in answer, testified to a conversation between plaintiff and Slocum, some two weeks before the trial, in October, 1873, the previous conversation testified to by the plaintiff, being in the spring previous. This testimony is corroborative of the testimony so given in respect to the contract by the plaintiff. This testimony, if it had been distinctly objected to as -an admission or declaration of Slocum, the defendant’s vendor, made long after the making of said contract with the plaintiff, should have been held inadmissible at the time, or stricken out afterward, if there had been any mistake or surprise in receiving it, unless its reception can be justified on the ground that the defendant was really defending the action in the interest, and for the benefit of Slocum, within the exception to the general rule stated and allowed in Paige v. Cagwin, Gardner v. Barden, Tousley v. Barry, Foster v. Beals.

The defendant really had no interest in the defense of the suit, for he had not paid for the potatoes. He had advanced Slocum, in all, twenty-five dollars on his lot of 600 or 800 bushels of potatoes, which he purchased at fifty cents a bushel. Slocum was, in this view, the real defendant in interest, and his admissions might properly be received, to affect his interest, but if this were not so, the reception of the evidence of Marshall and Doty did the defendant no injury. The evidence was merely corroborative of the plaintiff’s, upon the question of the original contract between him and Slocum, which was abundantly proved without such corroboration by the plaintiff’s testimony, which was not contradicted by Slocum, although he was sworn as a witness, and was really not disputed. A judgment should not be reversed for the admission of improper, irrelevant, immaterial or cumulative testimony, when abundant other competent evidence whs given to sustain the find-, ing, and the court can see that it has occasioned no injury to the party objecting to it.

The judgment of the County Court should be reversed, and that of the justice affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment of County Court reversed, and that of justice affirmed.

       7 Hill, 375.

       34 N. 1., 433.

         16 N. Y., 500.

       21 N.Y., 250.

       Wells v. Cone, 55 Barb., 585 and 589; Crary v. Sprague, 12 Wend., 41; Spencer v. Saratoga and Washington R. R. Co., 12 Barb., 383; Buck v. Waterbury, 13 id., 116, and not even in a capital case; The People v. Gonzalez, 35 N. Y., 49 and 59.


author: E. Dabwin Smith, J.:

text:
    ALBERT B. SHELDON, Appellant, v. JOHN L. PARKER, Respondent.

      Oonlñ'aet for sale of note—title to— when passes.

      . This action was brought upon a promissory note transferred to the plaintiff by the payee. Prior to the time of the transfer to the plaintiff, the payee had agreed, in writing, to sell the note to one Parks, of which agreement plaintiff was aware at the time he purchased the note. Held, that he was not entitled to recover; that by the agreement entered into with Parks, the title to the note 1 was vested in him, and that the payee had no interest remaining therein to transfer to the plaintiff.
    Appeal from a judgment of the County Court, in favor of the defendant, entered upon the trial of this action by the court without a jury.

      This action was brought to recover the amount of a promissory note. It was commenced in a Justice Court, where a judgment was rendered in favor of the plaintiff, for ninety-two dollars damages and costs, from which an appeal was duly taken to the County Court, where the cause was retried by the court without a jury. The note was given for eighty-seven dollars, dated December 1st, 1871, and was payable to Samuel F. Hawley or order, four months from date, and was duly transferred by Hawley to the plaintiff, for a valuable consideration, before maturity.
    The judge who tried the cause found that, on the 22d day of March, 1871, and before the maturity of said note, the payee agreed in writing to sell and-assign said note to Hiram Parker, and the said Hiram Parker agreed to purchase the same, for fifty cents on the dollar. That before and at the time of the indorsement and delivery of said note to the plaintiff, the said plaintiff well knew of the agreement for the sale and transfer of said note by said Hawley to the said Hiram Parker. The judge held that said plaintiff was not a bona fide holder of the note, and the indorsement and delivery to him passed no title; that the title to said note passed to said Parker upon the execution of the agreement of Hawley to sell the same to him, and that such agreement operated as a present sale of said note. He dismissed the complaint and directed judgment for the deféndant accordingly, which was duly perfected, and the plaintiff thereupon appealed to this court.

      Levi Brown, for the appellant.

      L. B. Sessions, for the respondent.
   E. Dabwin Smith, J.:

The judgment rendered by the county judge, we think, was not erroneous. The contract of sale of said note to Hiram Parker was complete — was in writing, and binding upon the parties, and not affected by the statute of frauds.

It is quite clear, by the laws of England, that the sale of a specific chattel passes the property therein to the vendee without delivery. In Gilman v. Supple, Sir Creswell Creswell, in giving the opinion of the court, said that, “ by the laws of England, by a contract for the sale of specific, ascertained goods, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the intention of the parties.”

By the statute of frauds, a contract for the sale of goods and chattels exceeding fifty dollars, valid at common law, is declared invalid, without delivery and acceptance, or payment of the whole or some part of the purchase-money, unless it is in writing, In this case, the contract was for the sale of a specific article; nothing was to be done to perfect it before delivery. The vendor was entitled do the price, and the vendee to the delivery of the note. It was a case of perfect bargain and sale at common law, and the title passed to the vendee. The plaintiff, as held by the judge, acquired no title to the note. Hawley had no title to it to sell, and ‘the plaintiff, having full knowledge of the facts, could acquire none

The judgment was correct, and should be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

      1 Chitty on Contracts, 11, American ed., 518; 2 Story on Contracts, § 1018; Benjamin on Sales (Book 2), chap. 1, p. 226 (2d ed.).

      2 Moore’s Privy Council Cases, 556.

       Shindler v. Houston, 2 Comstock, 261.


text:
    LYMAN H. BRYAN and others, Plaintiffs, v. HENRY LANDON, Commissioner of Highways of the Town of Lima, and ROBERT CHAPIN, Commissioner of Highways of the Town of West Bloomfield, Defendants.

      Commissioners of Highways—bridges between adjoining towns—effect of neglect to repair— liability of commissUmm's. .

    The same liability which commissioners of,highways are under to repair roads and bridges in their respective towns, is imposed jointly upon the commissioners of adjoining towns by chapter 325 of the Laws of 1841, as amended by chapter 383 of the Laws 'of 1857, as to bridges crossing a stream dividing such towns.
    The law is well settled that commissioners of highways are liable to respond in damages to any person suffering special injury in consequence of their neglect of duty.

      Motion for a new trial, on exceptions ordered to be heard at the General Term in the first instance. The action was brought to recover damages, sustained by the plaintiff from the breaking down of a bridge over Honeoye creek, which formed the boundary between the town of Lima, in Livingston county, and the town of West Bloomfield, in Ontario county, of which towns the defendants were respectively commissioners of highways. The plaintiff had a verdict at the circuit. The defendant moved for a nonsuit, which was denied, and also took exceptions to the refusal of the circuit judge to charge as requested in some particulars.

      W. S. Newman, for the plaintiffs.

      E. A. Nash, for the defendants.
   E. Darwin Smith, J.:

That the towns of Lima and West Bloomfield were bound to construct and maintain the bridge in question at their joint expense, was assumed and not disputed at the trial. The bridge crossed a stream dividing said towns, and connected two public highways, laid out, opened and in use, in said towns respectively. The defendants were the commissioners of said towns, and as such were charged with the ,duty of giving directions for the repair of the roads and bridges of their respective towns, and by force of the act of 1841, as amended by chapter 383 of the Laws of 1857, they were also charged with the power and duty of providing for the building and maintaining such bridge between said towns. The bridge in question having been erected and long maintained as a joint bridge between said towns, the defendants, as commissioners of said, towns, having sufficient funds in their hands for that purpose, were clearly bound to.keep it in repair, and in a safe condition for use by the traveling public. The second section of the act of 1841, as amended in 1857, as above stated, expressly provides that, “ commissioners of said towns so liable ” [that is, liable to make and maintain highway bridges, crossing á stream between two towns, at the joint expense of said towns], may be proceeded against jointly, for any neglect of duty in reference to such bridges.”

The same liability which, under the statute and at common law, would attach to these defendants for neglect to repair roads and bridges in their respective towns, we think, under this statute, attaches to them jointly for any neglect in keeping in repair any highway bridge between said towns, constructed at the joint expense of said .towns, and thus by said act, made a joint bridge. As was held in Beckwith v. Whalen, the law imposes an obligation upon two towns, separated by a creek, to build and maintain at their joint expense a bridge over said creek, when such bridge is necessary to connect two highways in the towns respectively.

That is this case; and the duty imposed upon the said towns, the defendants, as the highway commissioners of their respective towns, were bound to discharge. They were held liable at the circuit, in the charge of the judge, only upon the ground of negligence and joint negligence on their part in the discharge of their duty. The verdict of the jury was founded and based upon proof tending to show that the defendants, having notice of the insecurity and defective condition of this bridge, negligently omitted to repair the same. The law is well settled, that commissioners of highways are liable to respond in damages to any person suffering any special injury in consequence of their neglect of such duty.

No error in law was committed by the judge at the circuit in the charge and various rulings, and the motion for a new trial should be denied.

Present—Mullir, P. J., Smith and Gilbert, JJ.

Motion denied, and judgment ordered on verdict.

       1 R. S., 501.

       Chap. 225, Session Laws, 207,

         Page 788.

       5 Lansing, 376.

       Robinson v. Chamberlain, 34 N. Y., 389; Hover v. Barkhoof, 44 id., 113.