author: Bocees, J.:

text:
    GEORGE W. RING, Respondent, v. THE CITY OF COHOES, Appellant.

      Municipal corporation — liability of, for accident caused by obstruction in highways — for ingwry occasioned by accident.

    The defendant placed on the west side of Mohawk street, in the city of Cohoes, a hydrant, projecting several inches heyond the curb, with an iron nozzle on the side nearest the street, which projected several inches over the road-bed, at the height of about two feet. On the opposite side of the street the defendant had negligently allowed to accumulate a pile of ashes twenty feet long, ten feet wide and three feet high, the space between the pile and the west curb being about twenty feet.
    Plaintiff’s horse, which he was driving before a sleigh, took fright and ran along the street in the direction of the hydrant; plaintiff was unable to guide or direct him with precision; at that time a wagon was passing the hydrant in an opposite direction, leaving a space of about twelve feet between it and the hydrant; plaintiff’s horse-, in passing through this space, struck the hydrant or its nozzle, with the cross-bar of the sleigh, whereby the plaintiff was'thrown therefrom and injured. Plaintiff used his best endeavors to guide and control his horse, which was blind, and was guilty of no negligence which contributed to the accident.
    This action was brought to recover damages for the injuries sustained.

      Held, that the facts of the case justified a finding by the referee that the defendant was negligent in allowing the pile of ashes to accumulate and remain in the street, and in erecting and maintaing the hydrant so that it and its nozzle projected into the street, and that the plaintiff was entitled to recover.
    That the fact that the plaintiff’s horse was blind, and that the accident occurred while it was running away, did not relieve the defendant from the liability imposed by its negligence, so long as it appeared that the plaintiff was blameless and free from any negligence contributing to the accident.
    In making improvements in the public streets, and in keeping them in repair, the officers of the municipality are bound to act with due regard to the safety of travelers; and for any neglect or omission of duty in that regal’d, an action will lie by any person specially injured thereby.
    It is the duty of a municipality, bound to construct and maintain highways, to provide for the reasonable safety of travelers in reference to such accidents as may be expected to happen therein; and when a traveler is not in fault, but an injury happens to him, which is the combined result of accident, and of negligence attributable to the municipality because of its omission to keep the road in repair, the latter will be held liable for the damages occasioned thereby.
    Appeal from a judgment in favor of tbe plaintiff, entered-upon tbe report of a referee.
    Tbis action was brought to recover damages for personal injuries sustained by tbe plaintiff while driving a horse and cutter upon Mobawli street, in tbe city of Cohoes. The referee found, among other things: “That Mohawk street was a public highway and street within said city; that at the time of the accident and injury to the plaintiff, hereinafter mentioned, a large pile of ashes and cinders had accumulated upon the westerly side of said Mohawk street, at a point directly opposite the place where said injury occurred, and within the portion of said highway usually traveled by horses, vehiclés, etc.; that said pile of ashes was about twenty feet in length along the length of said street, about three feet high and about ten feet wide, and extended easterly from a point about one foot easterly of the west curb of said street towards the middle of said street to a point about eleven feet easterly from said westerly curb; that said pile of ashes and cinders had been accumulating for some weeks prior to the time of such accident and injury; that the accumulation and existence of said pile of ashes and cinders was well known to the street commissioner of the defendant, whose duty it was to remove the same; that said street commissioner and the defendant negligently allowed said pile of ashes and cinders to remain in said street, and that the same were so placed in said street with the knowledge and consent of said street commissioner and for the use of the defendant; that at the point where said accident and injury occurred, the portion of Mohawk street traveled by teams was thirty feet in width between the curbs; that directly opposite said pile of ashes and cinders; at the time said accident and injury occurred, and partly in the line of the west sidewalk and partly without and extending into the space between the curbs several inches, stood a hydrant, which had there been placed and maintained by the defendant; that upon the side of said hydrant, next the portion of said street traveled by teams, etc., was an iron nozzle which projected several inches over the space between the curbs; that said nozzle was about two feet above the surface of the ground; that on the 6th day of February, 1872, in the daytime, the plaintiff was driving on Mohawk street, at its intersection with Remsen street, abont eighty feet distant from said- hydrant, with a horse attached to a sleigh in which said plaintiff was seated; that said horse suddenly took fright and started upon a run along Mohawk street in the direction of said hydrant; that said plaintiff was unable to restrain said horse from running, and was unable to guide or direct him with any precision, although he used his best endeavors so to do; that said plaintiff was able to and did, to a certain slight extent, guide and control said horse in the direction in which he moved; that at that time, a wagon loaded with wood, and before which was a team of horses, was coming along Mohawk street from a direction opposite to that in which said plaintiff was moving, and had arrived at a point opposite said pile of ashes and between the same and said hydrant, and was moving along the side of said pile of ashes, which lay towards the middle of the street; that said wagon was between five and six feet in width; that the space between said wagon and hydrant was about twelve feet wide, and that in passing up said Hohawk street, in the direction in which he was going, the plaintiff, with his horse and sleigh, was compelled to pass between said wagon and said hydrant; that there was sufficient space between said wagon and said hydrant for said plaintiff and his horse and sleigh to have passed in safety, had said plaintiff had complete control of his horse; that within five seconds from the time said plaintiff’s horse commenced to run, he reached the space between said hydrant and said wagon and attempted to pass through the same; that in attempting to do so he ran so near to said hydrant that the cross-bar of the sleigh, in which plaintiff was riding, struck against the nozzle of said hydrant, or the portion of said hydrant which projected beyond the curbstone, whereby said sleigh was suddenly stopped and the plaintiff thrown with great force and violence against said hydrant, whereby his nose was broken, his cheek was cut and laid open, and he otherwise greatly injured; that, by reason of such injuries, said plaintiff became sick and disabled for several weeks, and has been permanently disfigured; that said horse so driven by the plaintiff was blind; that the plaintiff used his best endeavors to guide and control the horse he was so driving, and was guilty of no negligence which contributed to the accident or injury hereinbefore described; that the defendant was guilty of negligence in allowing and permitting said pile of ashes and cinders to accumulate and remain in said street, and in erecting and maintaining said hydrant so that the same and the nozzle thereof projected into the portion of the street between the two curbs, and that such negligence, on the part of the defendant, contributed to the accident and injury to the plaintiff above described; and as conclusion of law, that, by reason of the matters aforesaid, the plaintiff was entitled to recover of the defendant the sum of fifteen hundred dollars ($1,500).”

      Samuel Sand, for the appellant.
    The so-called negligent acts of the defendant, alleged by the plaintiff and found by the referee, were too remotely connected, if at all, with the accident to have caused or contributed to it in a legal sense. The proximate and legal cause of the accident was the blindness of the plaintiff’s horse, his unmanageability and his running away. {Marble v. Oii/y of Worcester, 4 Gray, 395 ; Hudson P. P. Oo. v. Mott, 1 Bobt., 585 ; Shearman & Bed. on Negligence, 39; Wilson v. Susquehamna Twnpilce Go., 21 Barb., 68 ; Austin v. New Jersey Steanriboat Go., 47 N. Y., 75 ; Lamen v. Gas-light Go., 44 id., 459.) The pattern of the hydrant, or its projection a few inches, cannot be held legal negligence at all. There was no testimony whatever that this was not the usual, ordinary and proper method of placing them. {Bongan v. Oha/mplain Go., 56 N. Y., 1.) But again, the shape, pattern, form and location of water hydrants were matters within the discretion of the water commissioners. No action lies for the exercise of that discretion, although bad judgment was shown. (City of Lansing v. Toolan, Alb. Law Journal, Sept. 8th, ’77, p. 164; Kavanagh v. Brooklyn, 38 Barb., 232; Mills v. Brooklyn, 32 N. Y., 489 ; Wilson v. Mayor, 1 Den., 595; Gole v. Medina, 27 Barb., 218.)

      Charles F. Boyle and Nathcmiel O. Moak, for the respondents
    The city having permitted one-half of its street to be filled with ashes, and built a hydrant with its nozzle into the street on the opposite side, thereby rendered itself liable to one injured in consequence of the defective condition of the street. {Chicago v. Broplvy, 2 Law and Eq. Bep., 224.) The plaintiff was entitled to recover, notwithstanding he was, for some few seconds after his horse stalled, unable to obtain entire control of him. Had there been no nozzle of the hydrant projecting into the street, he would as it was have passed the ordeal without injury. ( Bald/win v. The Greenwood Twnpike Company, 38 Conn., 238 ; 13 Am. Law Keg. [N. S.], 423; Hunt v. Pownal, 9 Yt., 411; Lower Maoungie Township v. Merlchoffer, 71 Penn. St., 276; Hey v. The City of Philadelphia, 2 "Weekly Notes of Cases, 465; Newlln Township v: Bavis, 1 Weekly Notes, 211; Pittsburgh v. Grier, 10 Harris, 54; Scott v. Hunter, 10 Wright,-194; Sherwood v. The City of Hamilton, 37 Upper Can. [Q. B.], 410.) In the State of Maine, under a statute not unlike ours, it has been in several cases held that the corporation is not liable if there be two efficient, independent proximate causes of an injury sustained by a traveler upon a highway, the primary cause being one for wbicb tbe corporation is not bable, and as to wbicb tbe traveler himself is in no fault, and tbe other being a defect in tbe bigbway. (Moore v. Inhabitants of Abbott, 32 Maine, 46; Farrrer v. Inhabitants of Greene, id., 574; Ooombs v. Inhabitants of Topsham, 38 id., 204; Anderson v. Oity of Bath, 42 id., 346; Moulton v. Inhabitants of Sandford, 57 id., 127.) In tbe State of New Hampshire, under a statute also like ours, tbe contrary is held. It is there held that where two causes combined to produce tbe injury, both of wbicb were in their nature proximate, the one being tbe defect in tbe bigbway, and tbe other some occurrence for wbicb neither party is responsible, that tbe corporation is liable, provided tbe injury would not have been sustained but for tbe defect in tbe bigbway. (Win-ship v. Fnfield, 42 N. H., 197; Clark v. Barrmgton, 41 id., 44; Tucker v. Humniker, id., 317; Morris v. Litchfield, 35 id., 271.) In tbe State of Vermont, under a similar statute, tbe courts appear to be in unison with tbe courts of tbe State of New Hampshire on this question. (Hunt v. Town of Pownal, 9 Verm., 411; Kelsey v. Town of Glover, 15 id., 708; Allen v. Town of Hancock, 16 id., 230.) In tbe State of Massachusetts, under a similar statute, tbe decisions are apparently conflicting. • In Palmer v. Inhabitants of Andover (2 Oush., 600), it was held that tbe corporation is liable for an injury occasioned by a defect in a bigbway where tbe primary cause of tbe injury is pure accident. 'But subsequent decisions have shaken it. (.Murdock v. Inhabitants of Warwick, 4 Gray, 178; Marble v. City of Worcester, 4 id., 395.) And still later it has been approved. {Powell v. City of Lowell, 7 Gray, 100.) Tbe result of tbe Massachusetts decisions would appear to be to bold that, if at tbe time tbe accident happened, tbe horses were, and for some considerable time bad been, out of tbe control of tbe driver, tbe corporation is not liable. {Davis v. Inhabitants of Dudley, 4 Allen, 557; Titus v. Inhabitants of Morthbridge, 97 Mass., 258; Horton v. Tanmton, 97 id., 266, note; Foggy. Mahant, 98 id., 678; reported, also, in Withrow’s American Cases, 464.) In tbe State of Wisconsin, where a similar statute exists, the principle of tbe last mentioned cases appears also to prevail. {Dreher v. Fitchburg, 22 Wis., 675 ; Houfe v. Town of Fulton, 29 id., 296; S. C., 9 Am. Rep., 568.)
   Bocees, J.:

The right of action rests upon the alleged improper manner of setting the hydrants as to locality. The street opposite the hydrant was obstructed by a pile of ashes which had been accumulating for a considerable period of time; but this fact was of importance only as the ash-pile Marrowed the surface of the street, open to travel at the place where the injury occurred; and hence, to some extent, bore on the question whether the road, in view of the manner in which the hydrant was placed, was, at that point, reasonably safe for public travel.

The plaintiff was driving along the street, seated in a sleigh, when the horse took fright, became unmanageable, so that the plaintiff was unable to restrain or guide it with any precision. The horse ran, at a slight angle with the street, toward the hydrant; in passing which the cross-bar of the sleigh, attached to and connecting the thills, struck it, or its nozzle, and the plaintiff was thrown from the vehicle and seriously injured. The hydrant stood partly within and partly without the line of the curbstone, with its nozzle further projecting several inches into the roadway. The referee found that the defendant was guilty of negligence in erecting and maintaining the hydrant in such locality and position, and that such negligence contributed to the injury complained of; and further, that the plaintiff was free from fault in all respects. As regards the form of the hydrant, and as to its position in the street, there is no controversy on the facts ; and the referee finds, upon sufficient evidence to sustain the findings, that the cross-bar of the sleigh struck against the nozzle of the hydrant, or against that portion of the hydrant which projected beyond the curbstone into the roadway of the street. The street in the vicinity of the hydrant, and its narrowed condition by reason of the ash-pile, were described by the witnesses with particularity; as were also the pattern of the hydrant and its location with reference to the curbstone, and its proximity to the ash-heap. As to the general facts of the case there seems to be no dispute of any moment. The question then was, and this question, it seems, still remains for us to consider even although it should rest on conflicting evidence (Godfrey v. Moser, 66 N. Y., 250), whether the roadway was reasonably safe for travel in its surface, margin and muniments ? (Glidden v. Town of Reading, 38 Vt., 52.) And this must be so when the particular highway and its alleged obstructions or imperfections are given in evidence from which negligence may or may not be deduced. The obstruction here complained of was at the extreme margin of the road-bed; and this fact was and is an important one to be considered, in determining whether the street was reasonably safe for public travel. But it must be held in mind that the defendant, having the right to control the entire width of the street, and to keep it free from obstruction from curbstone to curbstone, had a corresponding duty in that regard. (Morse v. Richmond, 41 Vt., 435.) The duty also in a city would be commensurate with the increased density of travel. (Fitz v. City of Boston, 4 Cush., 365; Bryant v. Inhabitants of Biddeford, 39 Maine, 193.) Undoubtedly in this case there was a fair question, for the trial court on the evidence submitted, whether the defendant was or was not negligent in regard to the matter of complaint. In Clemence v. City of Auburn (11 N. Y. S. C. [4 Hun], 386), the obstruction or imperfection in the street (a slight deflection in the sidewalk) seems almost insignificant as a ground of negligence, yet the court held a nonsuit improper and set it aside. This decision was affirmed in the Court of Appeals. (66 N. Y., 334.) It cannot, as we think, be held in this case that the defendant was absolutely free from negligence and consequent liability; nor that the findings of the referee to the contrary of this were without sufficient support on the evidence. As to the question of contributory negligence on the part of the plaintiff, there is an absence of all proof showing that he was in fault; and the conclusion of the referee that he was free from fault is well found. It is urged that there is no proof that the location of the hydrant in the street, partly within the line of the curbstone, with its nozzle further projecting over the road-bed, was unusual or out of the ordinary mode of setting them; nor that any like injury had ever before occurred from this or any similar cause. It was enough to show the situation and surroundings of the hydrant, and the circumstances attending the injury; then the question would arise whether the hydrant was properly placed with a view to public safety. And in case it should be found that it was improperly located, so as to constitute a nuisance in the highway, an action would lie for an injury thereby occasioned, as well for the first of such injuries as for any subsequent one. The party would not be barred of his right of action until he could show a prior injury from the same or from a similar cause. This case differs from that of Dougan v. The Champlain Transportation Company (56 N. Y., 1), in this, that there it was shown affirmatively that the nonfeasance complained of was in accordance with the general custom in similar cases, hence not against common prudence. The case in hand more resembles Blanchard v. Western Union Telegraph Company (60 N. Y., 510), where a recovery was upheld, although the injury was the first that had occurred from the alleged cause; and notwithstanding other parties had frequently passed the obstruction without injury. Nor was the defendant here protected by reason of the judicial character with which its agents who placed the hydrant were clothed. This point was settled in Clemence v. The City of Auburn (66 N. Y., 250), against the defendant. This decision is but one of many to the like effect. (Ninns v. City of Troy, 59 N. Y., 500, and cases cited on page 508.) These cases hold, that in making improvements in the public streets, and in keeping them in repair,. the duty becomes imperative on the officers of the municipality to act with due regard to the safety of travelers, and that for any neglect or omission of duty in that regard an action will lie at the suit of any party specially injured thereby.

It appears that the horse was blind and was running away on the occasion of the accident, and the question is put, with fairness of statement and not without great force, whether the defendant was bound to provide a safe street for a blind runaway horse ? It must be held in mind that there is no proof that the horse was vicious or addicted to running away, and that the plaintiff was free from fault in his management of the animal. Then the answer to the question is, that the defendant was bound to see to it, that the street was unobstructed for public use, or in more precise language, that it was reasonably safe for general travel. The plaintiff had a right to drive a blind horse on the public street; and If, without any fault attributable to him, he was injured while driving such animal, through the culpable misfeasance or nonfeasance of the defendant, the latter would be as much responsible to the former as if his horse had been entirely sound. (Sleeper v. San- down, 52 N. H, 244.) For any tiling that is made to appear with certainty, the same results, as in this case occurred, would have followed had the plaintiff’s horse been without the infirmity of blindness. It is a common and true remark that a frightened horse ■running away is but a “blind brute.” The mere fact that the horse was blind should not bar the plaintiff’s right of action, but doubtless this should be considered in determining the question of prudent conduct on his part. Under many circumstances, if not under all, a person driving a blind horse is bound to the exercise of increased vigilance and care in its use. But the mere fact that a person is driving a blind horse when an injury occurs by reason of a defective highway, will' not deprive him of the redress to which he would be otherwise entitled. (Davenport v. Ruckman, 37 N. Y., 568.) Of course he must be blameless in the management of the animal, otherwise he could not recover. Nor will the fact that the horse was running away at the time the injury occurred, necessarily defeat the plaintiffs action therefor. But in Maine the rule is, that in order to a recovery in a case like this, it must be proved that the injury was occasioned solely by the defendant’s negligence, and not by such negligence combined with another cause (as the fright and running away of the horse), for which it was not responsible. (Moore v. Abbot, 32 Maine, 46.) In this case Chief Justice Shipley said that to establish his action, the plaintiff must prove that the injury was occasioned by the default of the defendant alone, and not by that default and some other cause, for which the defendant was not responsible. (See, also, Farrar v. Inhabts. of Greene, 32 Maine, 574; Anderson v. City of Bath, 42 id., 346; Bigelow v. Reed, 51 id., 325; Moulton v. Inhabts. of Sanford, 51 id., 127.) It ought perhaps to be here observed that this rule was not deemed settled in this State (Maine), until the decision of Moulton’s case (supra); and then only by a divided court, the chief justice delivering a very able dissenting opinion, wherein the subject is fully considered. There are cases in Massachusetts also substantially in accordance with the rule laid down in the courts of Maine. (But see Palmer v. The Inhabts. of Andover, 2 Cush., 600.) In New Hampshire, however, the law is settled that when the plaintiff is not in fault, but the injury is the combined result of accident and of the defendant’s neglect to repair the road, the latter will be held liable. (Winship v. Enfield, 42 N. H., 197.) In this ease the learned judge, speaking for the court, says: “ The greatest precaution and the most penetrating foresight cannot prevent casualties by the safest modes of conveyance. Accidents will occur. A nut or bolt may drop, a trace may become disengaged, or a horse take fright and become unmanageable; it is under circumstances like these, when life and limb are imperiled, that the traveler who is in no fault himself, is entitled, if ever, to the benefit of a sufficient and unincumbered highway. The injuries are few that are received upon highways, however defective, that are not induced, in a greater or less degree, by some previously unknown defect, either in the carriage or harness, or by the fright of the horse, or some similar cause, usually termed accidental; and to say that under circumstances of danger and peril from those and other accidental causes, the traveler is not entitled to the safety that a highway unincumbered and without defects, that is, a highway made reasonably safe against the occurrence of such, accidents as these, would afford at a time when, of all others, he has the greatest need, would seem to be repugnant to reason and common sense.” (See also Clark v. Barrington, 41 N. Hamp., 44; Tucker v. Henniker, 41 id., 317.) The decisions in Yermont accord with those in New Hampshire. (Hunt v. Town of Pownal, 9 Vt., 411; Kelsey v. Town of Glover, 15 id., 708; Morse v. Town of Richmond, 41 id., 435, on page 442; Whitcomb v. Town of Fairlee, 43 id., 671, on page 675.) And in Connecticut, in the case of Baldwin v. Greenwood Turnpike Company (40 Conn., 238), it was decided that a traveler, sustaining an injury by reason of a defect in a highway, attributable to the negligence of a corporation bound to maintain it, was not barred of his right to recover by reason of the fact that on his own part an accident had contributed to the injury, if it was in no way attributable to his own negligence. In this case the plaintiff’s horse, when running away, fell over the side of a bridge, by reason of a defective railing which the defendant was bound to keep in repair, and was injured. The court, on a careful examination of the subject in all its bearings, held the defendant liable, laying down the law as above stated. The court remarked as follows : “ This brings into consideration the question whether the defendants are relieved from liability for an injury caused by 'their negligence, combined with an accident for which no responsibility attached to either party,” and it was said in the examination of this question, “ the plaintiff performed no negligent act, nor can we see that he failed to do any thing by the performance of which the injury might have been avoided; he was providentially prevented from acting;” and further, the court adopted with approval the following language from Hunt v. Town of Pownal (supra):It is to guard against these constantly recurring accidents that towns are required to guard in building highways. The traveler is not bound to see to it that his carriage and harness are always perfect, and his team of the most manageable character and in the most perfect training, before he ventures upon the highway.” (See also Ward v. Town of North Haven, 43 Conn., 148, on page 155.) The cases in the three States last above referred to, hold that the traveler is bound only to the exercise of ordinary care and prudence. In Pennsylvania also the rule is the same as in Yermont, Connecticut and New Hampshire. (Lower Macungie Township v. Merkhoffer, 71 Penn., 276; Hey v. Phil., 81 Penn., 44.) The case of Manderschiel v. City of Dubuque (25 Iowa, 108) is also in point; as is also Docher v. Town of Fitchburgh (22 id., 675), Houfe v. Town of Fulton (29 id., 675), Havens v. Town of Fox Lake (33 id., 438). The result of all the decisions above cited, except those in Maine, are, as I understand them, in accordance with the rule laid down in Kelsey v. Town of Glover (supra), that it is the duty of a municipality, bound to construct and maintain highways, to provide for the reasonable safety of travelers in reference to such accidents as may be expected to happen thereon, and that when a traveler is not in fault, but an injury happens to him which is the combined result of accident and negligence, attributable to the municipality by an omission to keep the road in repair, the latter will be held liable. We are not cited to any case in our own State wherein this precise question has been considered. There were some remarks in Wilson v. Susquehanna Turnpike Company (21 Barb., 79) bearing upon it, but the question was not there decided. The case of Clark v. Union Ferry Company (35 N. Y., 485) may perhaps have a bearing on it. In this case the plaintiff took a young horse on to the ferry-boat, and when attempting to drive him off the boat he reared up, became frightened, backed against the chain at the rear of the boat, which was defective and an insufficient protection, fell into the water, and was drowned. A recovery by the plaintiff was sustained. Peckham, J., speaking for the court, said: “An individual has a right to take a young horse on a ferry-boat. He may be timid or easily frightened, and yet the owner is guilty of no negligence in taking him on the boat. He must there exercise proper care in the management of the horse, and that is all that cam, be requi/red of him. If the horse be injured or lost through the negligence of the defendant, the latter is liable.” But the precise question discussed in the cases above cited was not- here raised, as will be seen by a casual examination of this case. In Wyckoff v. Ferry Company (52 N. Y., 32) a recovery was sustained under a similar state of facts. In Vincett v. Cook (11 N. Y. S. C. [4 Hun], 318) the wall of the defendant’s house being in a dilapidated condition, was blown down during a. storm of unusual violence, falling upon the-plaintiff. A recovery by the latter for the injury was sustained. In Cox v. Westchester Turnpike (33 Barb., 414) the plaintiff’s horse was injured on the highway. It was held that negligence on the part of the defendant, the turnpike company, from which the injury resulted, and the exercise of ordinary care by the plaintiff, gave a right of action. (See, also, Center v. Finney, 17 Barb., 94.) It has been repeatedly held that where an injury is occasioned by the joint negligence of several, the party injured being himself without fault, may have his action against all or either of the persons causing the injury. (Webster v. H. R. R. Co., 38 N. Y., 260; Sheridan v. R. R. Co., 36 id., 39; Colgrove v. R. R. Co., 20 id., 492; Spooner v. R. R. Co., 54 id., 230.) Nor will the comparative degrees of culpability affect the liability of either. (Barrett v. R. R. Co.,, 45 N. Y., 628.) Nor will it make any difference that the negligent acts were separate and independent of each other. (Slater v. Mersereau, 64 N. Y., 138.) If the negligence of a third party would not discharge another from liability whose negligence contributes to the injury, it is difficult to see on what principle an accidental circumstance, for which no one is responsible, can work that result. Hndoubtedly the weight of authority is in favor of the rule of law laid down in those States other than Maine. It seems the more reasonable doctrine, and, as we think, it accords with sound principle. It seems but just and right that when the plaintiff is without fault, and the injury is the combined result of pure accident and the defendant’s negligence, the latter ■ should be held liable. Highways should be constructed, protected and guarded in reference to possible accidents, and they should be made reasonably safe to travelers in case accidents should happen, as they must; such accidents as often do occur and may be expected occasionally to occur on highways. So where the antecedent cause is a pure casualty, then, as was said in one of the cases cited, the defect causing the injury must be deemed' the ecmsa próxima.

If correct in the above conclusions the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Osborn, J.: Bockes, J.:

license: Public Domain

text:
    SAMUEL B. PER LEE and HENRY M. PER LEE, Appellants, v. ANDREW J. BEEBE and JEREMIAH MEDBURY, Jr., Respondents.

      Contract — when divisible — Mull performance — when not a condition precedent to recovery.

    Plaintiffs and defendants entered into an agreement,, ■whereby the plaintiffs agreed to sell and deliver to the defendants all the coal they should want for their use, for a year, or until the next spring, at five dollars and fifty cents per ton, deliveries to be made as long as defendants should wish them, the defendants agreeing to receive the same at that price.
    A large amount of coal was delivered under this contract; but subsequently and before the expiration of the time therein specified, the price of coal having risen, the plaintiffs refused to deliver any more coal under it. In this action brought by them to recover the value of the coal delivered, held, that the contract was not an indivisible one, and full performance was not a condition precedent to a recovery by plaintiff; that, as no time of payment was specified in the contract, they were entitled to demand the pay for each lot of coal delivered, and that they were therefore entitled to recover the price of the coal delivered, subject to the defendants’ right to recoup any damages they might have sustained by reason of the breach of the contract.

      Appeal from a judgment in favor of the defendants, entered upon the report of a referee.

      Geo. W. Rcvy, for the appellants.
    Full and complete performance by plaintiffs was not a condition precedent to payment by the defendants, because there was nothing in the terms of the contract, nor outside, that made full performance a condition precedent. (Typton v. Feitmer, 20 N. Y., 423 ; Withers v. Reynolds, 2 Barn. & Adol., 882; Pattridge v. Gildermester, 1 Keyes, 93; Sielcels et al. v. Patterson, 14 "Wend., 256, 257; Tal/mage v. White, 3 Jones & Spencer; 35 N. Y. Sup. Gt. Rep., 218; Swift et al. v. Opdylee et al., 43 Barb., 274; Gardner v. Ciadle, 21 N. Y., 399 ; BaÁley et al. v. The Western Vt. R. R. Go., 18 Barb., 112; Snoolc v. Fries, 19 id., 313 ; Bowlcer v. Hoyt, 18 Pick., 555 ; Parsons on Contracts [6th ed., vol. 2], 517-524, 657, etc.)

      Oal/ovn L. Tefft, for the respondents.
   Osborn, J.:

The plaintiffs appeal from the judgment entered against them on the report of a referee, dismissing the complaint with costs. The plaintiffs are merchants in Norwich, N. Y., and the defendants hotel keepers in the same place. From April, 1870, to February, 1871, the plaintiffs had sold and delivered goods to the defendants, amounting to the sum of $572.60. On the 17th of May, 1870, and while this account was being made, the plaintiffs entered into an agreement with defendants (in parol), by which they agreed to sell and deliver to the defendants quantities of coal at an agreed price. It is in "eference to this coal contract and the proper construction to be given thereto, that this litigation seems to have occurred. Under this contract, whatever it was in fact, the plaintiffs did furnish between the day it was made and January, 1871, at different times and in different amounts, a large amount of coal, in the aggregate seventy tons, or thereabouts. During this time the defendants had paid said plaintiffs money at different times, and which, after paying the store account, amounted to the sum of $335.10, to be applied upon the coal which had been delivered. But this did not pay the coal account in full, and hence this action was brought.

There was a serious difference between the parties as to what were the actual terms of the coal contract, but as the referee has found the defendants’ version to be the correct one, it remains to be seen whether he gave it a proper or rather a legal construction. He finds the contract to be as follows: “ That May 17, 1870, the plaintiffs entered into a verbal agreement with the defendants, whereby the plaintiffs agreed to sell and deliver to the defendants all the coal they should want for their use, of all sizes, for a year, or until the next spring, or the opening of navigation the next spring, at five dollars and fifty cents per ton, and to deliver it along as defendants should want it, the defendants agreeing to receive the same at the said price. Nothing was said by the parties or either of them, as to the time of payment.”

And the referee adds to this finding the following words: “Yet they did not contemplate a settlement and payment for each parcel when it should be delivered.”

The referee then finds, that in pursuance of this agreement and in part performance thereof, the plaintiffs commenced delivering coal to defendants on many d^ys, from time to time, until and including January 23, 1871, amounting in all to seventy-six tons or over. That in February, 1871, defendants were out of coal, and wanted plaintiffs to furnish them more under this contract, which the plaintiffs did not do, and no more was furnished afterwards. The referee finds that coal in the meantime had advanced in price, and that defendants were compelled to pay an advanced price for what coal they wanted after that, and that they required several tons more to carry them to the time provided for and specified in the contract. He also finds that from August, 1870, to February, 1871, defendants had paid plaintiffs on divers days divers sums of money, aggregating $907.70, but such payments were not applied to any particular demand.

As a conclusion of law, he finds that, after paying the store account, there remained to apply on the coal account $335.10, which plaintiffs conld retain, but that they could not recover the balance alleged to be due for coal for the reason that such contract was entire and indivisible, and that, by the terms thereof, nothing was due until the same was fully completed and performed; “ that full performance was a condition precedent to payment or to a right of recovery.”

Tbe plaintiffs gave a different version of this contract, bnt, as I stated before, tbe rights of tbe parties must be determined according to tbe contract as found; and just bere it is proper to state tbat tbe statement of tbe referee following tbe contract, as found by bim, tbat tbe parties did not contemplate a settlement and payment for eacb parcel of coal wben it should be delivered,” amounts to nothing, and there is no evidence to sustain it aside from tbe contract itself. He says nothing was said by tbe parties as to tbe time of payment. "Whether they did or did not mentally contemplate payment amounts to nothing. Tbe question is, under tbe precise contract as found, were tbe legal conclusions of the referee correct ? Was this an entire and indivisible contract, in such a sense tbat, before plaintiffs could exact payment for any amount, they were bound to wait until tbe time bad expffed and tbe last ton bad been delivered ?

I think not. It seems to me entirely clear, on principle and authority, tbat tbe referee erred in bis conclusions. By an examination of tbe contract, it will be seen tbat nothing is said as to tbe time of payment. Tbat tbe quantity to be delivered is not suggested ; it is left wholly indefinite. It may require ten tons or a thousand to complete it, and so of tbe time when tbe several deliveries were to be made. By its very terms it is a contract to be performed in parts. Indeed, it is difficult to see bow, in any sense, it can be regarded as an entire and indivisible contract, and, with due respect to tbe referee who finds differently, it would seem quite evident tbat tbe parties did not so treat or understand it, for tbe defendants paid and plaintiffs received a large amount of money at different times on account of tbe coal tbat was being delivered. But tbe language of tbe contract must control. From an examination of tbe authorities,,I have come to tbe conclusion tbat this contract is one susceptible of part performance — one calling for tbe sale and delivery of coal at different times — making no provision in terms for any credit, and tbat, by its performance, a full and complete performance is not a condition precedent to payment for any part actually dehvered. Tbat tbe defendants could be called upon to pay for eacb parcel on dehvery; tbat is, having delivered all tbe coal tbe defendants wanted at any particular time, tbe plaintiffs could demand and receive payment therefor, and tbat upon such payment being refused an action would lie.

In a word, that, under tbis contract, plaintiffs were entitled to recover for tbe coal actually delivered, subject to tbe defendants’ right to recoup such damages as they may have sustained by tbe non-performance of tbe full contract. Tbis would seem to be tbe equitable construction, and clearly sanctioned by authority. (Tipton v. Feitner, 20 N. Y., 423; Withers v. Reynolds, 2 Barn. & Adol., 882, cited and approved in 20 N. Y., 423; Pattridge v. Gildermeister, 1 Keyes, 93; Sickels et al. v. Pattison, 14 Wend., 257; Talmage v. White, 3 Jones & Spencer, 35 N. Y. Superior Ct. R., 218.)

In tbis ease it was shown that tbe defendants’ actual damage was on account of the alleged non-performance. If tbis only bad been allowed them, there would still have remained a balance due plaintiffs for which they would have been entitled to recover.

Entertaining tbe views already expressed in reference to tbis contract, it is unnecessary to examine tbe other points raised, for it follows that tbe judgment appealed from must be reversed, tbe reference discharged, and a new trial granted, costs to abide the event.

Bockes, J.:

Tbe conclusions of tbe referee, to which tbe attention of tbe court is called on tbis appeal, have reference to tbe coal contract only.

Tbe referee found that tbe parties entered into a parol agreement, by which tbe plaintiffs were to furnish to tbe defendants all tbe coal they should want for their use for and during tbe year preceding tbe opening of navigation in 1871, at five dollars and fifty cents per ton, to be delivered from time to time as tbe defendants should want it; that nothing was said as to time of payments, but that they did not contemplate a settlement and payment for each parcel when it should be delivered; and, as matter of law, be decided, that although several parcels were delivered and accepted by tbe defendants, yet, because tbe plaintiffs in February and thereafter refused to make further delivery, tbe plaintiffs bad no right of action for tbe coal delivered. Tbe decision was put on tbe ground that tbe contract to deliver was entire and indivisible; and that no recovery could be bad by tbe plaintiffs until tbe end of tbe year, and on its fulfillment by them during tbe entire time tbe contract was to run. I am of tbe opinion that tbe referee was in error in bis construction of tbe agreement entered into by the parties. It was understood that the coal should be delivered in parcels as the defendants should want it; and the calls were left optional with them as to time and quantity. Delivery was to be made on call, and the calls were to be answered by the plaintiffs from time to time, as they should be made during the period the contract was to run. The agreement was that the plaintiffs would deliver from time to time on call, at the price specified, during a year, or until navigation opened in 1871. Extend the time during which the contract was to continue for two, three, five, ten or twenty years, and could it be maintained that no claim for payment for any coal delivered could be made until the expiration of the full time the contract was to continue ? Now, as no time of payment was expressly agreed upon, the ordinary legal inference must apply ; that the plaintiffs were entitled to payment on delivery. This, we think, is the fair, reasonable and legal construction to be put upon the agreement according to the proof submitted. This construction, is entirely just in application, too. The evidence fairly, and as we think, necessarily, sustains it. The referee’s findings, both of law and fact, which are in conflict with this construction, are, as we think, erroneous.

The contract was fulfilled by the plaintiffs when they answered the defendants’ calls for coal to the extent of the several parcels delivered to and accepted by the defendants. For the value of the coal so delivered, estimated according to the contract-price, the plaintiffs have a complete right of action.

Of course the defendants might recoup such damages as they should sustain by the refusal of the plaintiffs to deliver during the time the contract was to run; in the answer claimed to be sixty-two dollars and sixty-nine cents. The amount would depend upon the evidence.

The defendants, therefore, should have been charged'with the coal delivered and accepted by them according to the contract, deducting from the claim by way of recoupment, the damages sustained by the refusal of the plaintiffs to deliver as they had agreed.

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

Learned, P. J., concurred.

Judgment reversed, new trial ordered, reference discharged, costs to abide event.


author: Osborn, J.: Bookes, J.:

text:
    ANNA M. HOAG, Respondent, v. RICHARD PARR, Appellant.

      Oontraet for sale of lands — note given upon signing eontn'act — in an action upon the note plaintiff must prove performance of the eontn'act— Tender.

    On November 15, 1875, the parties to this action entered into an agreement, whereby the plaintiff agreed to sell certain land to the defendant, and to deliver the deed on December fifteenth, the defendant to pay on that day a note for $500, given when the contract was signed, and $3,300 in cash, being the balance of the purchase-money.
    In an action by the plaintiff upon the note, given at the time of the signing of the contract, held, that it rested upon her to prove a performance or tender of' performance of the contract upon her part, and that, failing so to do, she was not entitled to recover.
    There being no place specified in the contract for the delivery of the deed and the payment of the money, and the defendant being a resident of this State, the plaintiff, was bound to find the defendant and make a tender to him personally, or at least to show that after thorough efforts and inquiries he was unable to find him.
    In order to excuse a personal tender, it must appear that the defendant was out of the State, beyond plaintiff’s reach, or else that he intentionally avoided him or kept out of his way.
    Appeal from a judgment in favor of tbe plaintiff entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom tbe action was tried.
    Tbe action was brought upon a promissory note for $500, dated November 15, 1875, and payable December fifteenth of that year. Tbe answer was a general denial and an affirmative defense that tbe note was given in pursuance of a contract which tbe plaintiff bad failed to fulfill. The contract was for tbe sale of certain land by tbe plaintiff to tbe defendant. Tbe contract provided, among other things, as follows: “ And tbe said party of tbe first part further agrees that, on tbe fifteenth day of December, on receiving from tbe said party of tbe second part tbe sum of $3,800, tbe said party of tbe first part shall and will, at her own proper costs and expense,'execute and deliver to tbe said party of tbe second part, or to bis assigns, a proper deed of conveyance, duly acknowledged, for tbe conveying and assuring to bim and them the fee simple of the said premises free from all incumbrances, which deed of conveyance shall contain a general warranty and the usual covenants.
    “And the said party of the second part hereby agrees to purchase of the said party of the first part the premises above mentioned at and for the price and sum above mentioned, and to pay to the said party of the first part the purchase-money therefor, in manner and at the times following, to wit: On the fifteenth day of December next a note given by the party of the second part for $500, and a further sum of $3,300.”
    •It was insisted by the defendant that the plaintiff had never made a tender of the deed, and could not therefore recover upon the note.

      G. R. Hitt and R. W. JPechham, for the appellant.
    The action was on a note, which was given at the same time as the contract, and to carry it out. To recover on the note, a tender or offer of the deed must first have been shown, for the payment of the price and the conveyance of the land were dependent or concurrent acts. {Beecher v. Gomradt, 13 N. Y., 108; Smith v. McGluslcey, 45 Barb., 610; Holmes v. Holmes, 12 id., 131; Dirime v. Divime, 58 id., 264; Thomson v. Smith, 63 N. Y., 301-304.) The plaintiff failed to show a tender or an excuse for its absence, assuming the truth of the evidence upon her part. {Slingerlcmd v. Morse, 8 Johns., 414 ; Smith v. Smith, 2 Hill, 351, correcting report of same case in 25 Wend., 405; Leonard v. Smith, 44 N. Y., 618.) There must be an intentional evasion or keeping out of the way to excuse the tender of the deed, or the party must be out of the State. {Dwight v. Webster, 32 Barb., 4Y; Hale v. Patten, 60 N. Y., 233 ; Ferris v. Ferris, 16 How., 102.)

      Alonzo P. Strong, for the respondent.
    When the vendee is not entitled to his deed upon the payment sought to be recovered, delivery of deed is not a condition precedent. As instances of the application of this rule, we have Morris v. Sliter (1 Denio, 59), Greenby v. Oheevers (9 Johns., 126), Ha/rrimgton v. Higgins (1Y Wend., 3Y6), Robb v. Montgomery (20 Johns, 15). In the case at hand, the defendant, reading the note and agreement of sale as an entire contract, was not entitled to a deed npon payment of the note only, bnt npon tbe further act on his part of payment of the balance, $3,300. Till that, or tender of it, the plaintiff was under no obligation to pass the deed. The matter stands, then, with the absolute, unconditional promise represented by the note on the one side, which is sought to be modified by the special contract on the other, that contract showing something still to be performed on part of defendant before plaintiff could be called upon to act. Even if failure of plaintiff to perform or offer to perform the contract of sale would prevent a recovery upon the note, the burden of proving such failure rests upon defendant, and exceptions of defendant based upon the contrary assumption are not well taken. The note, upon its face, is an absolute, unconditional promissory note. It, therefore, imports a consideration still subsisting, and the burden of proof rests upon the maker to establish the contrary. (Story on Prom. Notes, § 181; Sawyer v. MoLouth, 46 Barb., 350; Kinsman v. Bwdsdll, 2 E. D. Smith, 395; Bank of H. Y. v. Topping, 13 Wend., 557, 569 ; PresH Turnpike Go. v. Hurten, 9 Johns., 216; Bank of U. S. v. Da/ois, 2 Hill, 451, 459.) If the absolute, unconditional promise to pay be varied by some contemporaneous written agreement, showing the note payable upon some condition only, such collateral agreement is matter of defense, to be pleaded, and the plea must negative the happening of the condition. (2 Parsons on Bills, 537 ; Holbrook v. Wilson, 4 Bosw., 64; Jewnvnson v. Stafford, 1 Cush., 168; Smalley v. Bristol, 1 Mich., 153; A/uerill v. Field, 3 Scram., 390; Thayer v. Gormor, 5 Allen, 25.) The attendance by plaintiff’s agent at the residence of the defendant, with deed executed and acknowledged, and the offer to complete and perform the contract on part of the plaintiff, under the circumstances disclosed, was a sufficient tender or offer to perform. The offer was properly made at defendant’s house. The contract not specifying the place, a tender at the residence of the party is sufficient. {Smith v. Smith, 25 Wend., 405; MarrWn v. Wells, 1 Tyler [Yt.], 381; KensaTl v. Talbot, 1 Marsh. [Ky.], 321 ; Sweet v. Ha/rdáng, 19 Yt., 592.) Under the circumstances plaintiff was excused from making any effort to see defendant personally, and from making a personal offer or tender to him, and a tender at the residence was sufficient, {Smith v, Smith, 25 Wend., 351; 2 Hill, 351; Judd v. Ensign, 6 Barb., 258 ; Southworth v. Smith, 7 Cush., 391; Tasker v. Bartlett, 5 Cush., 359.)-
   Osborn, J.:

The note upon which this action was brought was given on the same day as the written contract for the sale and purchase of certain lands in Schoharie county, executed by the parties. It was made due on the day the contract was tq be consummated by the delivery of the deed and the payment of the residue of the purchase-money, $3,300. Indeed, the note was given for a portion of the purchase-price, and its consideration was clearly and only for the .conveyance of the lands to be made December 15, 1875, the very day the note became due.

In my judgment the plaintiff could no more recover on this note without showing a performance of the contract, viz., the execution and delivery of the deed called for thereby, or a tender of performance, such as the law requires, than she could recover in an action for the residue of the purchasemoney. Indeed, it was tiled upon this theory at the Circuit, and while there was some dispute as to which party had the affirmative of this issue, the learned justice who presided at the trial regarded this as a necessary and vital issue. This is apparent from the case as made, from the evidence given and the charge of the judge. It is not pretended that there has ever been a delivery to the defendant of any conveyance as called for by the contract, but the defendant still is in possession and still retains the title of the lands embraced therein.

But it is claimed that there was a sufficient tender of performance by plaintiff to put the defendant in default. The lands which were the subject of sale are located in Schoharie county. The plaintiff resides in Schenectady, and the defendant in the city of Albany. In the contract there is an omission to designate any place for the delivery of the deed or the payment of the money. On the day named for the delivery of the deed the plaintiff’s husband came to the city of Albany with a deed duly prepared and executed, and went to the defendant’s house and there had an interview with the wife of defendant. Just what took place, or rather what was said on that occasion by the plaintiff’s husband and the defendant’s wife is the subject of some conflict, but as the jury found for the plaintiff we must assume, for the purposes of this appeal, the truth of the statement or evidence given by him on the trial.

Assuming all this to be true, there was no such tender or offer of performance on the part of the plaintiff as would enable her to recover the purchase-price, or on this note, or to maintain an action for a specific performance. "Very likely enough was done to excuse plaintiff, if defendant should undertake to maintain an action against her on account of this contract, but not enough to put defendant in default so as to recover against him in any form of action. It must be borne in mind that, under this contract, taken in connection with the note, the payment of the note, the payment of the residue of the purchase-price and the conveyance of the land, were dependent and concurrent facts. (Beecher v. Conradt, 13 N. Y., 108; Thomson v. Smith, 63 id., 301-304.)

If the defendant wished a conveyance it was his duty to go to the plaintiff, tender payment on his note, the residue of the purchase price, and demand a deed. On the other hand, if plaintiff desired her money she was bound to go to defendant, tender to him a conveyance such as was called for in the contract, and such as would convey to him a title free and clear of all incumbrances, and demand her money. It is not pretended that, prior to the day fixed for the performance, the defendant had ever said or done any thing that would relieve the plaintiff from doing every thing that the law requires in order to put defendant in default. When the husband of plaintiff called at defendant’s house and stated that he had his deed ready to deliver, he found Mrs. Parr; her husband, though not in the house, was in the city all that day, and was at the very place where plaintiff’s husband was informed, he could be found. And yet the plaintiff’s agent contents himself with that one call and one interview, on that day, and with no other or further effort to find defendant, or to have a personal interview with him. The defendant swears, and this is uncontradicted, that he told his wife before leaving home to inform plaintiff where he could be found in the event of his calling, and he was at.the place named during the entire day, as is most conclusively established.

True, the plaintiff’s husband testifies that she told him he had better not try to see defendant, as he was much excited over some important suit which he hud iu court. Put this amounted to nothing, even if she had authority to make any such statement, which does not appear. There is no evidence from which a pretense can be drawn that defendant purposely absented himself from his home on that day or at any other time, to avoid meeting plaintiff or her agent, or that he kept himself secreted or concealed for any such purpose. On the contrary, he was in the court room nearly all day, awaiting the trial of an important case in which he was interested. The husband of plaintiff then left. He exhibited no deed, nor does it appear that he made any further effort or inquiry to find defendant on the occasion. On two different occasions after that day — on December twentieth and February eleventh — he called at defendant’s house, the defendant being absent on each occasion, and he did not see him at all after that before this action was commenced.

These are all the facts bearing on the question of the plaintiff’s tender of performance, or any attempted tender of performance. It seems to me that they fall far short of establishing what was necessary, in order to make a sufficient tender of performance to enable plaintiff' to maintain any action, based upon the failure of defendant to keep his contract. There being no place specified in the contract for the delivery of the deed and the payment of the money, the plaintiff was bound to find the defendant and make such tender to him personally, he having a residence within this State; at least he was1 bound to show that, after thorough efforts and inquiries, he was unable to find defendant to make such tender. No well-adjudicated case can be found that will sustain the position that here was a sufficient tender of performance to enable plaintiff to maintain any action, whether upon the note to compel specific performance, or for damages. (Slingerland v. Morse, 8 Johns., 474; Smith v. Smith, 2 Hill, 351; Leaird v. Smith, 44 N. Y., 618.) The rule seems to be well settled, that in order to excuse the tender to defendant personally, he must be out of the State, beyond the reach of the plaintiff, or else there must be-intentional evasion or keeping out of the way. It will not answer to say that because the defendant was temporarily from his residence when the plaintiff or her agent called, that he is relieved from any further effort or diligence to make the tender. (Dwight v. Webster, 32 Barb., 47; Hale v. Patton, 60 N. Y., 233; Ferris v. Ferris, 16 How., 102.)

As I am entirely satisfied that the tender of performance, as proved in this case, was insufficient to warrant the verdict or even the submission of the case to the jury, it is unnecessary to examine the other questions raised by the defendant — one as to whether the court erred in his decision as to which party was charged with the burden of proof, and another as to whether this action could be maintained, assuming there had been a complete tender of performance, and refusal; in a word, whether the plaintiffs only remedy in that event would not be a bill in equity to enforce specific performance, or an action at law to recover damages ?

It follows, from what has been stated, that the judgment appealed from must he reversed and a new trial granted, with costs to abide the event.

Bookes, J.:

Passing the preliminary and formal proof, preceding the introduction of the contract, we take the case as it stood on the trial at the time and following the reception of that paper in evidence. The case may then he considered as if the note in suit and the contract of purchase and sale (wherein the note had its origin) were put in evidence simultaneously. Having this preliminary proof as a basis, the action was an action at law ■ to recover part of the purchase-money, by the defendant agreed to be paid to the plaintiff: for certain premises which the latter had contracted to convey to the former, free from all incumbrances. The deed was to be delivered and the purchase-money was to he paid at one and the same time. The obligations of the parties were, therefore, concurrent and dependent. The contract provided for simultaneous performance by each, so neither was hound to perform, save on performance or tender of performance by the other. The plaintiff, then, in order to establish her right of recovery for the purchase-money, was bound to show performance or a tender of performance on her part. A refusal to accept performance, or a readiness and willingness to perform at the time and place where performance may be required, has sometimes been held to be tantamount to a tender. But until proof be given of performance or its equivalent by the party suing at law, his right of action remains incomplete. This proof, .as has been suggested, was a prerequisite to the right of recovery by the plaintiff in this case, yet the contrary of this seems ■ to have been held at the trial. Instead of requiring the plaintiff to show performance on his part, the onus of proof was cast on the defendant to establish the plaintiff’s default.

This ruling was made principally, if not entirely, on the ground that the defendant had given his note for the part of the purchase-money sought to be recovered. But this fact, under the circumstances of this case, in no way changed the obligations of the parties as regards the duty of performance by them respectively, with a view to a right of action by one against the other, as it was expressly provided in the agreement that the note in suit should be paid, with the balance of the purchase-money, on the fifteenth of December, at which time the conveyance of the premises, free from incumbrances, was to be made and delivered. On looking into the contract it will be seen that delivery of the deed by one party, and payment of the note and money by the other, were to be simultaneous acts. That a part of the purchase-money agreed to be paid was evidenced by a note in the hands of the plaintiff made the case no different on the law, from what it would have been had no note been given. The requirements of the law remained the same, to wit, that before the plaintiff could recover the purchase-money, she was bound to show performance or tender of performance on her part. The theory of the trial, on which the various rulings were made, was this: that the plaintiff had an “ advantage ” in holding the note given for part of the purchase-money, and so the learned judge charged that the effect of such advantage was to cast upon the defendant the burden of showing the plaintiff in default. The defendant was held to this rule. to the end of the trial. In this the learned judge was in error.

It is suggested that this question of tender of performance or its equivalent was submitted to the jury, and was determined by them in favor of the plaintiff. The answer to this suggestion is: First, that it was submitted to the jury under the erroneous rule above indicated, a rule which gave the plaintiff an illegal advantage in its determination; and second, it was held in effect, that the plaintiff might recover without showing performance on her part, and in point of fact the evidence will not sustain a finding that the plaintiff either performed or tendered performance, for it appeared that the premises were apparently incumbered. If it be said tbat tbe apparent incumbrances were in fact satisfied, it must be replied tbat sucb proof was not given, and by tbe coiu't was beld to be unnecessary. Judgment reversed, new trial ordered, costs to abide tbe event.

Learned, P. J., concurred in tbe result.

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


author: OSBORN, J.:

text:
    JOHN T. BENHAM, Administrator, etc., of JOHN P. BENHAM, Deceased, Appellant, v. EBENEZER PENNOCK, Impleaded with BENJAMIN F. CADY, Respondent.

      Mortgage — direction to pay pa/rt of the amount thereby secured 'to the heirs and executors of the mortgagee — effect of assignment by mortgagee — pa/yment to

    One Benham conveyed certain real estate to one Pennock, and took back a purchase-money mortgage for $2,800, as to $1,400 of which it was provided that, as Benham’s wife had refused to join in the deed, it should be set apart as an indemnity against her claim of dower, the interest to be paid to Benham during his life, and in case he survived his wife, the principal to be paid to him or his heirs, executors or administrators; in case she survived him the interest to be paid to her during her life, if she elected to receive it instead of claiming her dower, and if not, then no interest to be paid until her death, but the principal to be paid within twelve months thereafter to the heirs, executors or administrators of Benham. Benham assigned the mortgage, and the same was paid and by the assignee satisfied of record. The wife survived the husband and elected to take the interest of $1,400, instead of her dower. After her death the administrator of Benham brought this action, claiming that Benham had no right to assign the mortgage; that the $1,400 therein reserved was made a trust fund for the benefit of Denham’s heirs, and that the payment to the assignee did not satisfy the same.

      Meld, that the assignment by Benham was valid, and that the payment to the assignee satisfied and discharged the mortgage.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of tbis action by tbe court without a jury.
    On March 23, 1863, John P. Benham, plaintiff’s intestate, conveyed certain real estate to tbe defendant Pennock, and took back a purchase-money mortgage for $2,800. As Benham’s wife did not join in the conveyance, the bond to which the mortgage was collateral, provided as follows :
    “Whereas, the wife of said Benham has not and will not join in the execution of said conveyance, and a certain inchoate claim of her right of dower will remain as a cloud upon the title of said farm to the prejudice of said Pennock and Cady, against which it is desired by the parties thereto to protect and indemnify said Pennock and Cady, as far as may be ; “ Now, therefore, it is agreed that said $2,800 shall be paid as follows: That is, $1,400 are hereby set apart, and is to be considered as a standing indemnity on interest against said claim of dower, and in the hands of said Pennock and Cady, the interest thereon to be paid to the said Benham annually, from the first day of April next, for and dm-ing the natural life of said Benham, provided he shall die before the wife of said Benham; but in case said wife shall die before said Ben-ham, the said $1,400 and interest shall be paid to said John P., or his heirs, executors or administrators, within twelve months after the death of his said wife.
    “And it is further provided that if said John P. Benham shall die, leaving his said wife surviving, and his said wife shall elect to take the use of the one-third part of said farm, to be set apart to her, instead of the use of the interest thereof, then no interest is to be had upon said $1,400, from and after the time of the death of said John P., during the lifetime of said wife, and upon the death of said wife, said $1,400 shall take interest, and the principal itself to be payable within twelve months after her death, to the heirs, executors or administrators of said John P. Benham; and in case said wife shall, on the death of said John P., so elect to take the interest upon the said $1,400, as and for her dower use, then the said interest which shall accrue after the de>th of the said John P., shall be- paid to the said wife, from and during her natural life, and upon her death, the unpaid interest and the said $1,400, shall be due and payable from said Pennock and Cady to said heirs, executors and administrators of said John P., within twelve months after the death of the said wife; the name of said wife being Elizabeth Benham.”
    On February 6, 1866, Benham assigned the mortgage to one Barlow, who thereafter, and on the 14th day of May, 1875, assigned tbe same to one Cornell, to wbom tbe whole amount due and secured thereby was, on December 17, 1875, paid and tbe same was by him duly satisfied and discharged of record.
    Benham died on April 28, 1870, leaving him surviving his wife, who elected to receive the interest on the $1,400, instead of claiming her dower in the property, and did accordingly receive it, until the time of her death on or about, July 18, 1873. The plaintiff is the administrator 'of Benham, and brought this action to recover the amount claimed to be due thereon.

      Hmry A. Merritt, for the appellant.
    The $1,400 reserved by the bond was made a trust fund for the benefit of Benham’s heirs, and the addition of the words “ executors and administrators ” only referred to a class through which that fund must necessarily pass to be distributed. (Buol&Vm v. Bucldim, 1 Keyes, 141; 1 B. S., part 2, chap. 1, art. 3, § 108 [735], 685 [Edm. ed.] ; Fellows v. Hemams, 4 Bans., 230, 239 ; Patterson v. Murphy, 17 Eng. L. and Eq., 287.) A trust can be created in favor of one’s heirs as a class. (Harding v. Ql/yn, 1 Atk., 469; 5 Yes., Jr., 501; 8 id., 571; 2 Sugden on Powers, 159, §§ 6, 7; Brown v. Higgs, 4 Yes., Jr., 708; In re Ann Fero et al., 9 How. Pr., 85 ; 2 Sugden on Powers, 160,' §9.) No form of words is necessary to create a trust. Where it appears to have been the intention of the parties to create one it is the duty of the court to declare and enforce it. (Fformam v. Burnett, 25 Miss., 183 ; Pratt v. Ayer, 3 Ohand. [Wis.], 265 ; Starr v. Starr, 1 Ohio, 321; Brown v. Combs, 29 N. J. L. [5 Dutch.], 36.)

      H. D. Walrath, for the respondent.
   OSBORN, J.:

This action was tried at the Schoharie Circuit before Mr. Justice INgaíls, without a jury, in January, 1877, upon an admitted state of facts. Upon these facts the learned justice ordered judgment for defendant, with costs, and from the judgment entered thereon an appeal was taken to this court.

The plaintiff’s claim is, that by the terms of the bond on which the action is brought, the sum of fourteen hundred ($1,400) dollars reserved therein, was made a trust-fund by plaintiff’s intestate for tbe benefit of bis heirs, and that notwithstanding its assignment by the intestate in his lifetime, for a full and valuable consideration together with the mortgage accompanying the same, and by the assignee named in the first assignment, afterward reassigned; and notwithstanding the fact that the full amount due thereon was paid to such last-named assignee before the commencement of this action, who acknowledged the complete satisfaction of such bond and mortgage, this action can be maintained.

This position of the plaintiff is clearly untenable, and the authorities cited by the counsel have no application to the facts conceded in this case. The intention of the parties to the bond and mortgage is obvious. The wife of the plaintiff’s intestate refused to unite with him in a deed of certain premises of which he had the fee. To protect the purchasers against any loss from and on account of the inchoate dower right of his wife, a certain portion of the purchase-money or price was reserved and this bond and mortgage given. This sum so kept back and reserved was simply to protect and secure the grantee under his deed, by leaving one-third of the purchase-price unpaid upon the mortgage and bond, from and against any interest of his wife in said premises, in the event that 'she outlived him. The language of the bond, so far as it affects this action, is as follows : “ The sum of $1,400 is set apart and to be considered a standing indemnity, on interest, against said claim of dower, the interest to be paid to the said Benham (the intestate) anually during his life. In case he outlives his wife, the whole sum to to be paid to him or his heirs, executors and administrators twelve months after her decease.” In the event that the wife survived her husband and should elect to have one-third of the premises set apart for her use, instead of taking the interest on the sum so reserved, then no interest was to be paid on the sum secured by the bond and mortgage during her life, but the principal sum and interest from her death to be due and payable twelve months thereafter, “to the heirs, executors and administrators of John P. Ben-ham,” the intestate. But in the event that she should take the interest on the $1,400 so secured, “ and this she did, having outlived her husband,” then in that event, upon her death the unpaid interest and the principal sum were, by the terms of said bond, made due and payable, “ to the heirs, executors and administrators of the said intestate ” twelve months after Ms death. The intestate assigned all Ms interest in the bond and mortgage in Ms lifetime, as be bad a right to do. Its conditions, so far as the wife’s interest was concerned, bad been complied with, and before this action was commenced the bond and mortgage had been fully paid to the owner and holder thereof. It would be manifestly unjust to the obligors to be obliged to pay twice, unless some principle of law requires it, and from a careful examination I am satisfied such is not the ease.

The judge at the Circuit was right in his conclusions of law upon the undisputed facts, and the judgment appealed from must be affirmed, with costs.

LeaRNed, P. J., and Bockes, J., concurred.

Judgment affirmed, with costs.


text:
    ALMIRA CUCK, Appellant, v. MILTON QUACKENBUSH, as Executor of DAVID QUACKENBUSH, Deceased, Respondent.

      Services rendered by ma/rried ‘woman — ■ husband must maintain action foi' — Mutual account — proof of.

    This action was brought by the plaintiff, a daughter of David Quackenbush, deceased, against his executor, to recover for services rendered by her in attending upon her father during his last illness, she being then married and living with her husband. Seld, that the husband, and not the plaintiff, was the proper person to bring the action.
    She also claimed to recover for services rendered before her marriage, to which the statute of limitations was pleaded. To remove the bar of the statute, she proved an account in which she had charged her father with the services and credited him with various amounts, the credits being for such articles as a- father would naturally give to a daughter living with him, although of age. No account was kept by her father. Seld, that the simple presentation of an account containing such credits to the executor was not sufficient; that an account of her father against her should be regularly proved, in order to have the effect of taking the case out of the statute,

      Appeal from a judgment in favor of defendant, entered upon tbe report of a referee.

      B%i/nd/y & Soramlwig, for tbe appellant.

      S. S. Burnside and J. IB. Keyes, for tlie respondent.
   OSBORN, J.:

.Tbe plaintiff, wbo is a daughter of David Quackenbusb, presented a claim against bis estate, to tbe defendant, tbe executor, and claimed there was due to her thereon for principal and interest nearly tbe sum. of $3,000; with tbe exception of a few dollars, this amount was made up as follows: For her services in working for her father and in bis family for twelve years, from 1850 to 1862, after she attained her majority and before her marriage ; also for some forty days’ service after her marriage in attending ujDon her father in his last illness, this last service rendered in 1873. Tbe executor rejected tbe claim and it was by consent duly referred by tbe surrogate of Otsego county, to Hon. Edwin Countryman, as sole referee to hear and determine tbe same. As to any claim for services rendered by plaintiff before her marriage, tbe learned referee held that tbe same was barred by tbe statute of limitations, while as to the claim for services rendered after her marriage, she could not recover for the reason that such claim belongs to her husband and that be only could maintain tbe action for that, and as a conclusion of law that defendant was entitled to judgment. Judgment was entered and'plaintiff appealed therefrom to this court.

Tbe plaintiff insists that tbe referee erred in bolding that tbe statute of limitations attached to any portion of tbe demand in question, for tbe reason that there was an open, mutual and subsisting account between tbe parties through all these years, for articles furnished to her by her father, and also for $500 paid by him to her in 1870, on account of this labor.

As to tbe money paid, it would seem to be entirely clear that tbe claim that ’it was paid on account of this work, or that it can be regarded as a charge tending to establish an open account, is entirely unwarranted. A receipt for such money was given back, signed by tbe plaintiff and her husband, and speaks of it as money advanced by bina, deceased, to apply to ber portion of bis estate, as an beir at law. It bad no reference to any account or 'demand sbe bad. It was a simple advancement, or in tbe nature of an advancement. After tbe plaintiff attained ber majority, sbe lived with ber father and in bis family as before, and was treated as before; tbe residue of tbe account claimed by way of credits seems to be for clothing and so forth, just such articles as a parent would naturally furnish to a daughter living with him, although over age. It is not pretended that tbe deceased ever kept any account against bis daughter. It is one presented by tbe plaintiff, with tbe evident purpose of avoiding tbe statute of limitations. But tbe pretended account was not proved. Tbe account as presented to tbe executor contained these credits. This was offered in evidence and rejected. If plaintiff desired to prove any account of ber father against ber, so as to show an open, mutual, subsisting account, sbe was certainly obliged to make proof of it in tbe ordinary way of proving an account. Simply crediting him on ber account with articles furnished would not answer, when sbe was tbe one trying to establish tbe credit. In tbe case of a promissory note, outlawed except for an indorsement of payment, such payment must be proved. Not so where it is not necessary to rely on tbe payment to keep tbe note alive. So in this case. Her claim was barred unless deceased bad an open account against ber. Can sbe prove it by simply offering a paper of ber own production on which sbe has given such credits ? It seems to me clearly not. There was then no proof before tbe referee, of any account on behalf of tbe father against tbe plaintiff, and tbe proof offered was clearly incompetent and properly rejected. This being so, tbe referee committed no error in bis refusal to find as requested.

As to tbe claim for services rendered after ber marriage I see no reason for not following tbe decision of Beau v. Kiah (4 Hun, 171), bolding that for such services tbe husband must bring tbe action. (See also Birkbeck v. Ackroyd, 11 Hun, 365; N. Y. Weekly Digest, 4th vol., 576.)

Tbe fact that tbe executor was willing or offered to pay plaintiff thirty-five dollars on ber claim as presented for services, etc., and in payment thereof, does not change tbe legal rights of these parties. Sbe did not accept it. He may have thought she was entitled to recover for ber services rendered after ber marriage and in ber own name. But tbis does not make it so; or be may bave thought it advisable to pay something, rather than involve bis estate in litigation. It is enough to say that plaintiff refused to accept tbis sum, and tbe parties now stand precisely as though no such offer bad been made.

I bave looked at tbis case with care — bave examined tbe evidence and tbe authorities cited — and am unable to see that any error has been committed by tbe referee in bis conclusions of fact or law.

Tbe judgment appealed from must, therefore, be affirmed, with costs.

LeaRned, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


author: Osborn, J.:

text:
    DAVID SHELP, Appellant, v. HATTIE R. MORRISON, Respondent.

      Refusal, of pa/rty to action, to produce paper ■— contempt — striking out complaint.

    Upon the trial of this action, brought to foreclose a bond and mortgage, in which the defense was payment, the plaintiff having been subpoenaed-to produce the bond was called as a witness and asked if he had it, to which he said he did not have it; that he did not have it in his possession when subpoenaed. The court then staled that the question was, whether he had control of it. After about an hour had been occupied by counsel in his efforts to find out where the bond was, the counsel for the plaintiff stated that he had it in his pocket, and being asked by the court if he would produce it said that he declined to do so at present, whereupon the justice ordered the complaint to be stricken out. Held, that this was proper.
    Appeal from a judgment in favor of tbe defendant, entered upon an order made at tbe Circuit striking out tbe plaintiff’s complaint.

      J. E. Dewey, for tbe appellant.

      M. L, Stover, for tbe respondent.
   Osborn, J.:

Tbis appeal is from a judgment entered against plaintiff and in favor of defendant for fifty-nine dollars and fifty-seven cents, tbe complaint having been stricken out by tbe court. Tbe action was for tbe foreclosure of a mortgage executed by tbe defendant in 1870, to one Edwin Groat, for tbe sum of $585 and interest, upon certain lands and premises in Montgomery county. Accompanying tbe mortgage is a bond in tbe usual form. Tbis bond and mortgage was duly assigned by Groat to one John E. Morris, and afterwards by Morris to one Myndert "Wemple, and by "Wemple, in January, 1877, to plaintiff, wbo, in about a week thereafter, commenced tbis action, and in tbe complaint claims that there is due and unpaid thereon fifty-eight dollars and sixty-eight cents, with interest from June, 1876. Tbe answer simply alleges payment in full, and upon tbis issue tbe cause came on to be tried in October last at tbe Montgomery County Circuit. On tbe trial, Justice Potter bolding such Circuit dismissed the complaint, and tbe only question presented for review on tbis appeal is, whether be was authorized in so doing.

Tbe defendant bad subpoenaed tbe plaintiff to produce tbe bond in suit, and after tbe plaintiff bad rested, and tbe defendant was endeavoring to establish tbe defense of payment, tbe plaintiff was called as a witness and testified that be bad been subpoenaed to' produce tbe bond, but that be did not have it; that be supposed be was tbe owner of tbe bond and mortgage; be further stated that be did not have tbe bond in bis possession when be was subpoenaed, and did not know as be bad ever bad it in his possession exactly. At tbis point the court stated that tbe question was, whether witness bad it or ought to have it, or has got control of it.” Tbe counsel for tbe defendant then stated to tbe court that it was proved that the witness was tbe owner of tbe bond and mortgage, and asked if tbe court denied a motion to strike out tbe complaint, and tbe reply was “ yes, on the present state of facts.” He further said to tbe counsel, “ find out where tbe bond is.” Just at tbis point, Mr. Dewey, counsel for tbe plaintiff, remarked that be bad tbe bond in bis pocket, and upon-being asked by tbe court if be produced it, be replied that he declined to do so at present, -and was proceeding to make some further state-meat wben tbe learned justice ordered the complaint stricken, out, to which an exception was taken. The question now is, was this court legally empowered or authorized to do this ?

It would seem from the record as though this whole discussion in reference to the production of this bond occupied but a moment, and yet it is apparent from a remark made by the judge that an hour or thereabouts was consumed in the effort to find out from the plaintiff where the bond was, and if possible to procure its production. All this time it was in the custody of the plaintiff’s counsel, there in court, and that fact was undoubtedly known to the plaintiff. It was the plaintiff’s instrument; he owned it; he had been subpoenaed to produce it. It had, without question, been the subject of conversation between plaintiff and his counsel. In one sense it was in plaintiff’s possession and under his control, while he was evasively answering the questions put to him with a view to its discovery. Such conduct is clearly contumacious, and such a practice is not to be tolerated. It was an unnecessary waste of time, an evident trifling with the court and not at all in keeping with the due and orderly administration of justice.

When the discovery was made, I think the counsel should at once, upon the request or suggestion of the court, have produced it. This he declined to do at that time, and for this refusal, taken in connection with all that had transpired previously, I think the court was justified in striking out the complaint. (Code, § 858 ; Brett v. Bucknam, 32 Barb., 655; Bonesteel v. Lynde, 8 How., 226; Gaughe v. Laroche, 14 id., 451; Valiente v. Dyckman, 24 id., 222; Boynton v. Boynton, 25 id., 490.)

It can easily be seen how this paper might be of the greatest importance to the defendant; non constat, its production would establish the alleged payments by the indorsements appearing thereon. I see no force in the offer which was made to show that the bond and mortgage had passed into the hands of a receiver. The bond was in court aud this proof, if made, would furnish no excuse for its non-production, nor is there any force in the point raised by the appellant that the contents of the subpoena do not appear, or the time when service of the same was made. No such objection or suggestion was made at the trial, and it cannot now be urged here. Indeed, as this was a material paper and in the possession of tbe plaintiff or bis counsel on tbe trial, tbe court, on request of tbe defendant, could order its production, and if refused could properly strike out tbe complaint as was done in this case, although no subpoena or notice bad been served. (See cases above cited.)

It was quite evident that for some reason or other tbe plaintiff and bis counsel did not propose to present this bond, for, after the court bad ordered tbe complaint stricken out, no offer was made to produce tbe same. If this bad been done tbe court might have, and quite likely would have, reconsidered its action. Tbe offer was to'prove something by way of excuse for not producing it, and which, if proved, as we have seen, would not have amounted to any legal excuse.

For tbe reasons stated, tbe judgment appealed from must be affirmed, with costs.

Learned, P. J., and BooKes, J., concurred.

Judgment affirmed, with costs.


author: Per Gu/riam:

text:
    ELISHA COMSTOCK, Appellant, v. ELECTUS DYE and FRANKLIN CARPENTER, Sheriff of Saratoga County, Respondents.

      JHew trial on ground of nmly-diseov&red evidence — costs of former trial — must be paid by applicant for.

    A new trial, on the ground of newly-discovered evidence, should only be granted upon condition that the party applying therefor shall pay the costs of the former trial.
    Appeal from an order made at tbe Special Term, setting aside a judgment in favor of tbe plaintiff entered upon tbe report of a referee, and a levy made under an execution issued thereon, and directing a new trial, costs to abide tbe event.

      P. H. Cowen, for tbe appellant.

      PAmoreaux, Poke c& Whalen, for tbe respondents.
   Per Gu/riam:

On the trial of this action one Luther was called as a witness for tbe plaintiff. He testified that be was not tbe owner of tbe claim in suit, but that be bad a power of attorney to collect it, and that tbe power of attorney could not be found. Other evidence was given tending to show that tbe instrument, executed by tbe plaintiff to Luther, was not an assignment of tbe claim, but only a power of attorney. Tbe defendants were, therefore, unable to give any evidence of statements made by Luther, tending to invalidate tbe claim. Since tbe trial it has been discovered by tbe defendants that tbe instrument mentioned was an assignment of tbe claim. They moved, therefore, to set aside tbe judgment and report of tbe referee, and tbe motion was granted, tbe costs to abide tbe event.

This was substantially a motion for a new trial upon newly-discovered evidence. Tbe rule in such cases is that the motion, when granted, is on tbe terms that tbe moving party pay tbe costs of tbe former trial. In this present case tbe learned justice, who granted tbe motion, probably thought that a fraud bad been practiced by tbe plaintiff, and that for this reason the defendants should not pay tbe costs. It may be that, so far as Luther is concerned, this view is correct. But tbe plaintiff is not distinctly connected with any supposed fraud on tbe trial. And although, on tbe affidavits, it appears now that Luther is at least tbe principal owner of tbe claim, still tbe plaintiff may, on another trial, be able to contradict Luther’s ownership. We 'cannot therefore assume, beyond doubt, that Luther is tbe only person affected by this question of costs.

And there are general reasons why tbe right to a new trial on newly-discovered evidence should be granted with caution and upon terms. Parties should make every preparation'for tbe trial as if it were to be final. It is only as a favor that they can have a new trial on tbe ground that they have better evidence to produce. Under all tbe circumstances we think that this case should follow tbe ordinary rule. And tbe order must be modified so that tbe relief granted shall be on payment by tbe defendants, within twenty days of notice of this order, of the costs and disbursements of tbe former trial and of entering judgment, as already taxed.

No costs on this appeal to either party.

Present — Leabned, P. L, Booxes and Osbobn, JJ.

Order modified so as to set aside judgment and grant new trial on payment of costs of former trial and of entering judgment. No costs of this appeal.


author: Learned, P. J.: Bocees, J.:

text:
    In the Matter of the GUARDIAN MUTUAL LIFE INSURANCE COMPANY. In the Matter of the WIDOWS AND ORPHANS’ BENEFIT LIFE INSURANCE COMPANY. In the Matter of the NEW YORK STATE LIFE INSURANCE COMPANY. In the Matter of the RESERVE MUTUAL LIFE INSURANCE COMPANY.

      Receiver of insolvent insurance company — not entitled to security deposited with superintendent of insurcmce department— chap. 463 of 1853.
    A receiver of an insolvent insurance company, appointed under chap. 463 of the Laws of 1853, is not entitled to have transferred to him the securities deposited hy the company with the superintendent of the insurance department. Chapman v. Buggies (59 N. Y., 163) and People ex rel. Buggies v. Chapman (64 N. Y., 557) followed.
    Appeal from an order of tbe Special Term directing tlie superintendent of the insurance department to transfer to the receiver of the above companies securities to the amount of $400,000, which had been deposited with him by those companies, under chapter 463, Laws of 1858.

      A. H. Schoonmaker, Jr., attorney-general, and E. W. Paige, for the appellant, the superintendent of the insurance department.

      Peckham <& Tremam, for the respondent, H. R. Pierson, receiver, etc.
   Learned, P. J.:

In the ease of Ruggles v. Chapman (59 N. Y., 163) the Court of Appeals decided that the receiver of the Eclectic Life Insurance Company was not entitled to have a transfer to him of the securities deposited with the superintendent of the insurance department. Tbe receiver in that case was appointed under tbe provisions of tbe Revised Statutes, in a suit brought by a creditor and a stockholder.

In tbe present cases tbe application for a similar transfer is made by a receiver appointed under chapter 463, Laws of 1853. And it is urged, on bis behalf, that tbe foregoing decision is not applicable; because in tbe seventeenth section of that act it is declared that tbe court shall decree a dissolution of tbe company and a distribution of its effects, including the secwriUes in the hands of the superintendent.

But a statute was passed in 1815 in regard to that Eclectic Life Insurance Company to facilitate tbe distribution of its effects. (Laws of 1815, chap. 331.) That act recited tbe appointment of a receiver of tbe company, and provided that tbe attorney-general might apply to tbe Court of Common Pleas for an order directing tbe distribution of tbe securities' deposited with tbe insurance department; and that upon tbe granting of such order tbe superintendent of that department should transfer such securities as might thereby be directed. That act therefore gave substantially as much power to tbe Court of Common Pleas in tbe action which bad been commenced by a creditor, and as to tbe Eclectic Insurance Company, as is given by chapter 463 of tbe Laws of 1853 to tbe Supreme Court in' proceedings.taken by tbe attorney-general, as to life insurance companies generally. After tbe passage of that act tbe receiver of that company obtained an order from tbe Court of Common Pleas, directing tbe transfer of those securities to tbe receiver. And thereupon a manda/nms was granted in tbe Supreme Court to compel tbe superintendent to make such transfer. On appeal to tbe Court of Appeals, tbe order for a mandamus was reversed. Tbe court held that tbe transfer of tbe securities from tbe superintendent to the receiver was not contemplated by tbe act, nor authorized by its requirements. They held that tbe transfer was a needless proceeding, which might increase expense and be detrimental to those who were interested in tbe fund. (People ex rel. Ruggles v. Chapman, 64 N. Y., 557.)

That decision seems to be conclusive on tbe matter before us. Tbe power given by tbe act of 1815 to tbe Court of Common Pleas to distribute these securities is as full in its language, and appears to be as great in its extent, as tbe power given to tbe Supreme Court by tbe act of 1853. As it was held that tbe act of 1875 did not contemplate or authorize a transfer to a receiver who is even mentioned in the act, certainly the act of 1853 does not require any transfer, in its general application to the subject.

It is true that the act of 1853 gives the Supreme Court power to decree a distribution of these securities. That provision means a distribution to those who are entitled as policyholders or otherwise. There is no necessity whatever, in order to carry out such distribution, that the securities should be removed from the present lawful custodian. If the court could decree a distribution, in case the securities were in the hands of a receiver, they can decree the same distribution by the superintendent. All of the questions which are said to be intricate can be determined on the application of the superintendent, or of the parties interested, or in some proper form, as well if the securities remain where they are, as if they should be put in a receiver’s hands.

We see no authority in the court to take the property out of the hands of the superintendent, who is the official trustee, except by decreeing a distribution. (See Ruggles v. Chapman, ut supra.) And it is evident that such a transfer as is asked for would be undesirable. It would burden those securities with the taxable fees and expenses of a receivership instead of leaving them in the management of a salaried officer of the State.

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

Bocees, J.:

The decision by the Court of Appeals in the cases cited seems conclusive of the question here presented. I confess I should have readily, as it seems too readily, reached a different conclusion in the absence of the binding authority of those cases. It strikes me that the correct mode of working out an application of the funds to be obtained from the securities held by the superintendent to the use and benefit of those entitled to share them, would be through the receiver; and that to this end the latter, under proper safeguards, should have the custody of such securities with a view to their collection and the proper distribution of the avails. This mode of administering the assets for the benefit of those entitled to them, appears to me the most simple, expeditious, and least expensive ; and, for aught I can see, it would be, or could be made to be, entirely safe. But, under the binding authority of the decisions cited, the question is not open to discussion. The orders appealed from must be reversed.

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

Orders reversed, with ten dollars costs and printing disbursements.