text:
    Daniel H. Deyoe, App’lt, v. William Ewen et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Sheriffs—Bond given by deputy to divide fees with sheriff.
    Defendant Bwen, as deputy sheriff, gave to the sheriff a bond providing for a division of fees received by Mm, both civil and criminal, wMch also provided that all business that should come into liis hands that could be done by virtue of the office < f deputy sheriff should be done in that capacity and not in any other. In an action to recover thereon certain fees received for arrests on criminal process, Held, that such fees were received by defendant in payment for services rendered as a peace officer and were not sheriff’s fees as such; and that as the agreement provided for a division of fees and emoluments' not due or belonging to the sheriff as such, it was contrary to public policy, and the bond was, therefore, void.
    Appeal from judgment dismissing the complaint.
    Action upon a bond given by defendant Bwen, a deputy sheriff, to plaintiff as sheriff, providing for a division of fees received by him.
    The following is the opinion of the court below :

      Russell, J. The plaintiff, in these actions, was sheriff of Saratoga county and sues the defendants for one-third of the fees received by the defendants, Woodworth and Ewen, during the plaintiff’s term of office, the last named defendants being two of his deputies. They- gave bonds to the sheriff providing for a division of the fees received by them, both civil and criminal, on the basis of one-third to the plaintiff and two-thirds to themselves, and the bond provided also that all business that should come into their hands that could be done by virtue of the office of deputy sheriff should be done in that capacity and not in any other. This is meant to reach the claim which Woodworth and Ewen might make that they executed warrants as constables and not as deputy sheriffs.
    Woodworth and Ewen paid in full the amounts going to the sheriff for the civil business done by them as deputies, but the defendants declined to pay the one-third of the amount received by the officers in the execution of criminal process.
    The question in this case is whether a sheriff can take a bond from a deputy who may be a constable of the county, or may not, providing for a division of the fees by that person in the execution of criminal process, and have such obligation enforced by the courts.
    I think not. The general rule is that a public officer shall not be able to take for his private emolument any obligation by color of his office. To this rule there are exceptions. He is allowed by statute to take indemnity bonds in certain instances. He is also allowed to execute civil process by means of deputies, for the increased facility of business, as it is impossible for him to execute all of the duties of his office single-handed. He may not sell such deputations, but he may provide for a reasonable division of the fees to be received. The reason of these exceptions is plain; but they do not go beyond the purpose and the necessity in view. The distinction between the execution of civil and criminal process is widely marked and the penetration of the law does not confound the two. The deputy should in some manner divide the fees in the execution of civil process because he acts as the sheriff pro hac vice. He does not act as sheriff in the execution of criminal process. He acts as peace-officer of the county. Code Criminal Procedure, § 154, taking effect September 1,1881.
    For improper execution of civil process the sheriff is liable for acts of his’ deputy. For improper execution of criminal process the sheriff is not responsible for the acts of his deputy.
    If a deputy should kill a man in making a criminal arrest, an action would not lie against the sheriff. If a deputy under a criminal warrant should destroy property, the sheriff would not be responsible. In the execution of civil process the sheriff may direct the deputy what to do, and the deputy must obey his superior. In the execution of criminal processes the sheriff may not control the deputy beyond that power which is given him in regard to all citizens of the county. The deputy acting as a peace officer is responsible to other authority than that of the sheriff himself.

      Under such a bond as was given in these matters, the sheriff could easily control the fees of the constables of the county more likely to do the largest business as constables by making them deputy sheriffs, so that his appointment of a person as a deputy would extend in its force and operation to a control of the perquisites of many of the constables of the county.
    Ho authority directly in point has been cited to me and, therefore, this case must be decided upon principle and from inferences drawn from somewhat analogous cases. Becker v. Ten Eyck, 6 Paige, 68; Tappan v. Brown, 9 Wend., 175 ; Farrar v. Barton, 5 Mass., 395 ; Mott v. Robens, 1 Hill, 21; Bliss v. Lawrence, 58 N. Y., 442 ; Thurston v. Fairman, 9 Hun, 584; 3 Birdseye Statutes, 2799, § 59.
    There is nothing in this case to show that these bonds were not taken in perfect good faith, but the considerations of public policy, in my judgment, render them ineffective, at least so far as the perquisites in criminal cases are claimed.
    Judgment is ordered for the defendants.

      Gayley, Baucus & Fleming (Edgar T. Brackett, of counsel), for app’lt; T. F. Hamilton, for resp’ts.
   Herrick, J.

The plaintiff in this action is the sheriff of Sara-toga county, the defendant Bwen is the deputy appointed by him, and the other defendants are sureties upon Ewen’s bond.

The bond given provides for a division of the fees received and earned by the defendant Bwen, both civil and criminal, one-third to the plaintiff and two-thirds to the defendant Bwen, except for, per diem attendance upon court, and also his fee for summoning jurors, all of which is to be received by the plaintiff.

It appears that the defendant Bwen earned fees in criminal cases aggregating the sum of $777.78, which sum was paid to him before the commencement of this action.

He failed to pay any portion of it to the plaintiff, who thereupon commenced an action against the defendants upon said bond for one-third of the fees received by said Bwen.

Upon the trial a judgment of nonsuit against the plaintiff was rendered, from which judgment an appeal was taken to this court.

A determination of who the fees belong to in the first instance determines the validity of the bond upon which the action is brought.

Where the sheriff is entitled to fees or emoluments an agreement for a division of them is valid.

The reason why the principal may take a stipulation for a part of his fees or profits is because the whole belongs to him. Mott v. Robbins, 1 Hill, 21; Becker v. Ten Eyck, 6 Paige, 68.

But where the fees belong to the deputy, a division of them with his principal is regarded as a purchase of the office or appointment, and an agreement for such division is therefore invalid. Tappan v. Brown, 9 Wend., 179; Becker v. Ten Eyck, 6 Paige, 68-75.

The only finding of the court of fees earned and received by the defendant Ewen, but undivided with the plaintiff, is of fees in criminal proceedings, a very large proportion of which appears from the evidence to have been for the arrest of persons charged with crime.

Such services are not. performed necessarily by the sheriff or deputy sheriff as such, they may be performed by any peace officer. Section 154 of the Code of Grim. Proc. defines a peace officer to be the sheriff, under sheriff, or deputy, or a constable, marshal, police constable or policeman of a city, town or village.

While it is true that in this particular case Ewen was a peace officer because, and only because he was a deputy sheriff, yet the fees received by him in the criminal proceedings were received by him in payment of duties discharged as a peace officer, they were not sheriff’s fees as such, but could have been earned by a marshal, constable or a policeman ; therefore in making the agreement for a division of them the plaintiff was not “ only reserving a part of his own,-and giving away the rest to another,” but, was taking to himself what in the first instance was due to another.

The bond itself recognizes that Ewen might perform services and receive fees that could be performed and received by another person than a sheriff or deputy sheriff, and provides that anything that is done by Ewen that can be done by a deputy sheriff shall be done by him in that capacity, and that he should divide the fees therefor.

It appears to me therefore, that this agreement provides for the division of fees and emoluments not due or belonging to the sheriff as such, and is therefore contrary to public policy, and that the bond and agreement therefor is void.

The judgment should he affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


source: Caselaw Access Project

author: Herrick, J.—This

license: Public Domain

text:
    Daniel H. Deyoe, App’lt, v. Herbert J. Woodworth et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Appeal from a judgment in favor of defendants, rendered upon a trial before the court, a jury having been waived. Action upon a bond given by the defendant Woodworth as deputy sheriff to plaintiff as sheriff, providing for a division of fees received by him.

      Gayley, Baucus & Fleming (Edgar T. Brackett, of counsel), for app’lt; T. F. Hamilton, for resp’ts.
   Herrick, J.—This

is a companion case to Deyoe v. Ewen, deat term court, are same.

The judgment appealed from is affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


author: Herrick, J.

text:
    William H. Townsend, Resp’t, v. Winslow M. Bell et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Riparian owners—Pollution of stream.
    In an action to restrain defendants from polluting a stream at a point above plaintiff’s land by discharging into it refuse from their plush factory, the court refused to pass upon a request to find that the use of the water was a reasonable one, on the ground that under the decision of the general term on the former appeal it was not material whether the use was a reasonable one or not. Held, error.
    2. Same—Use of water.
    There is no distinction in principle between that use by a riparian owner which obstructs the flow of water and subtracts from its quantity and that which discolors, deteriorates or pollutes it, and the test of what is a reasonable use applies to all uses by the riparian proprietor of the waters which flow through his premises.
    Appeal from judgment enjoining defendants “ from using the water of the stream described in the complaint so as to change its natural condition, or as to render the same impure, discolored or unhealthful,” and for costs.

      Linson & Van Buren (John J. Linson, of counsel), for app’lts ; J. Newton Fiero (George G. Reynolds, of counsel), for resp’t.
   Herrick, J.

This is an action brought by the plaintiff against the defendant for damages claimed to have been suffered by the plaintiff by reason of the defendants polluting and discoloring a stream of water which flowed by and in front of plaintiff’s premises.

The defendants are the owners and operators of a plush factory, situated upon a stream, and at a short distance above the premises of the plaintiff.

Upon defendant’s premises is a pond, constructed more than twenty years ago by a former proprietor of said premises.

The defendants used the water of this pond in operating their factory, drawing the water from it, and then discharging into the stream the refuse from the factory, polluting the waters by the materials used in dyeing and rinsing the goods colored at the factory.

From the view that I have taken, it is unnecessary to set forth all the facts of the case found by the trial court. The case was tried before the court without a jury.

Amongst other things found by the court was that the use which defendants made of the stream is necessary in carrying on their business.

The defendants requested the court to find as a matter of fact that “ the use by defendants of the waters is a reasonable one.” In response, the court said: “ I refuse to pass on the question sought to be presented by this finding, on the ground that, under the decision of the general term in this case, whether the use was a reasonable one or not is not material.”

This, I think, was error. It is elementary law that a riparian proprietor is entitled to a reasonable use of the stream of water running through his property as a part of his proprietary rights in the soil. Gould on Waters, 220; Angell on Watercourses, 240; Bullard v. Saratoga Victory Co., 77 N. Y., 525; Prentice v. Geiger, 74 N. Y., 341; Gould v. Boston Dock Co., 79 Mass., 442 ; Merrifield v. Worcester, 110 id., 216.

Hence it becomes a question in every case where a particular use of water is sought to be enjoined whether such use under all circumstances, taking into consideration the equal rights of other riparian proprietors, is a reasonable exercise of the rights of a riparian owner or proprietor.

I do not understand that when the case was in this court before, 62 Hun, 306; 42 St. Rep., 229, the court decided that the ques- ' tion as to whether the use of the water was a reasonable or unreasonable one was not a material question in the case. The prevailing opinion would seem to have been more to the effect that the use of the water in this particular case, as shown by the facts then before the court, was one that the defendants had no right to exercise, and that in fact it was an unreasonable and illegal use, and one which, therefore, irrespective of any special injury that could be shown to have resulted therefrom to the plaintiff, the defendants were not entitled to enjoy.

I do not see, taking into consideration the various uses to which water and streams of water are put for milling and manufacturing purposes, by means of which streams of water are necessarily used and have been found time and again by the courts to have been ■'more or less discolored, polluted and lessened in quantity, that any distinction in principle can be drawn between that use by the riparian proprietor which obstructs the flow of water and subtracts from its quantity, and that which discolors, deteriorates or pollutes it.

" Running streams cannot be used for commercial or manufacturing purposes, and the waters thereof retain their pristine clearness and purity.

The test of what is a reasonable use, I think, applies to all uses by the riparian proprietor of the waters which flow through his premises.

The question whether a particular use of water by one riparian owner is consistent with the rights of other owners is generally a question of fact to be determined by a jury.

“ And the test, in the absence of a right by prescription or grant, is whether the particular use under the circumstances, having regard to the maxims covering the right of property, is a reasonable one.” Prentice v. Geiger, 74 N. Y., 341-5.

What is a reasonable use is also a question of fact to be determined by a jury or trial court. Herman v. Roberts, 119 N. Y., 37-45 ; 28 St. Rep., 843; Bullard v. Saratoga Victory Co., 77 N. Y., 530.

The question as to whether the use was a reasonable one then being material, and one necessary to be determined in rendering a final decision in the case, and that being as we have seen a question of fact for a jury, or for the court acting in place of the jury, a refusal to make any finding at all in respect thereto, on the ground that it was not material, was error of law. Baumann v. Pinckney, 118 N. Y., 615-16 ; 30 St. Rep., 60; James v. Cowing 82 N. Y., 449.

For that error the judgment should be reversed, and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concur.


author: Putnam, J.

text:
    Peter J. Smith, Resp’t, v. John Mack, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Venue—Affidavit for change for convenience of witnesses. '

    While it is necessary for the affidavit for a change of venue on the ground of the convenience of witnesses to show the advice of counsel that the witnesses are material and necessary, if it states that each and every of the witnesses mentioned are material, and that without the testimony of each and every of them thfe moving party cannot safely proceed to trial as he is advised by his counsel and believes, the necessity as well as materiality of the witnesses is thereby shown, and the word ‘ ‘ necessary ” need not be used.
    3. Same.
    It is not necessary that the affidavit should state what information the affiant has which enables him to state that the several persons named will testify to the facts set forth.
    3. Same.
    Where the greater number of witnesses reside in the county in which the transaction took place, a motion to change the place of trial to that county should be granted.
    Appeal from order of special term, denying motion to change the place of trial from Columbia county to that of Albany.

      Edward J. Meegan, for app’lt; Chancellor Hawver (Eugene Burlingame, of counsel), for resp’t.
   Putnam, J.

Appeal from an order of the Albany special term, denying a motion made by defendant to change the place of trial from the county of Columbia to that of Albany.

■ The plaintiff insists that the defendant’s moving affidavit is fatally defective in omitting to state that the witnesses named are not only material, but also “necessary.” The part of the affidavit referred to, after stating the names and residences of each of the witnesses, is as follows: “ are each and every of them mate-

rial witnesses for this deponent on the trial of this cause, as he is advised by said counsel and verily believes; and that without the testimony of each and every of said witnesses deponent cannot safely proceed to the trial of this cause, as he is also advised by said counsel and verily believes.” Plaintiff’s contention is that the affidavit should have contained the words “ and necessary" between “material” and “witnesses.”

It will be seen that the form of the moving affidavit is the same as that set out in the note in Brittan v. Peabody, 4 Hill, 66. In the form therein given the word “ necessary ” is not used. In the note in the same case (4 Hill, 65) the following doctrine is laid down: “ It mtist be shown moreover, that they are each and every of them material to the defense, or for the defendant, Anonymous, 1 Hill, 668, as the defendant is advised by his counsel and verily believes. Anonymous, 8 Wend., 425; Anonymous, 7 Cowen, 102. They must appear to be necessary also, as well as material, Satterlee v. Groot, 6 Cowen, 33 ; see Young v. Scott, 8 Hill, 32-35; and for this purpose the affidavit adds that without the testimony of each and every of the witnesses the defendant cannot safely proceed to the trial of the cause, as ■ he is advised by his counsel and believes. Satterlee v. Groot, 6 Cowen, 33; Anonymous, 7 id., 102; Anonymous, 3 Wend., 425.”

We think it appears from the above quotation and the authorities therein cited that on the motion to change the place of trial for the convenience of witnesses, while it is necessary to show the advice of counsel that the witnesses are material and necessary, if the affidavit states that each and every of the witnesses mentioned are material, and that without the testimony of each and every of them the moving party cannot safely proceed to trial, as he is advised by his counsel and believes, he does show that the witnesses are necessary as well as material.

The respondent also claims that the moving affidavit is defective in not alleging what information the affiant had which enabled him to state that the several persons named as necessary witnesses would testify to the facts as set forth in the affidavit. As the general term of this district, in Myers v. Village of Lansing-burgh, 54 Hun, 623; 28 St. Rep., 250, has held that such an allegation is unnecessary, this objection need not be considered.

The action was brought to recover $1,888 from defendant as a stakeholder for wagers made with him in the city of Albany between November 1, 1891 and February 5, 1892. There were 214 different bets set out in the bill of particulars and all made in the city of Albany. We do not deem it necessary to discuss at length the affidavits of the parties read on the motion. But all the transactions set out in the pleadings occurred in the city of Albany, and from that fact, as well as from said affidavits, we think it appears that the convenience of witnesses will be promoted by a change of the place of trial from the county of Columbia to the county of Albany. The papers show a greater number of witnesses in the latter county. In such a case as this it is well settled that the place where the transactions between the parties occurred is an important element in determining where the trial shall be had. Maynard v. Chase, 30 St. Rep., 348; Trope v. Saratoga Association, etc., 36 id., 127, 128.

The order should be reversed, with ten dollars costs and disbursements, and the motion to change the place of trial granted, with ten dollars costs to abide the event.

Mayham, P. J., and Herrick, J., concur.


text:
    Warner E. Sprague, Resp’t, v. William B. Cochran, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Mortgage—Reformation—Limitation.
    The ten year limitation applies to an action to reform a mortgage.

      2. Same—Agreement to include other real estate.
    It was claimed in this action that an agreement to execute a mortgage on all the mortgaaor’s real estate was in equity a mortgage thereon, and that a portion having been omitted by mistake from the mortgage given, should be treated in equity as being embraced therein and that no reformation of the mortgage was necessary. Reid, untenable; that while equity might have reformed the mortgage so as to conform to the agreement had the action been commenced in time, the right to reform having been lost by lapse of time the written contract must govern.
    Appeal from so much of a judgment in foreclosure as decrees a reformation of the mortgage, and from order granting leave to to amend the complaint so as to claim such reformation.
    In 1876 defendant, whose partner had died, to induce the widow to loan him $3,000 which she had obtained as the proceeds of a policy of insurance on her husband’s life, and to become his partner, agreed to give her a mortgage on all his real estate to secure .said loan. A mortgage was accordingly given, which, however, omitted one of the lots belonging to defendant. The widow -assigned the mortgage to plaintiff.
    On the trial before the referee plaintiff moved to amend the. •complaint so as to claim a reformation of the mortgage, but the referee did not decide the motion, preferring to leave the matter to the special term, which granted it. The court adjudged that the facts found constituted an equitable mortgage on the lot in controversy, and directed a foreclosure of the mortgage and a sale of all the property agreed to be mortgaged.

      George H. Carpenter, for app’lt; T. F. Bush, for resp’t.
   Putnam, J.

The only matter necessary to be considered by us is whether plaintiff’s right to a reformation of the mortgage in suit was barred by the statute of limitations, and if so, whether such a reformation was necessary to sustain the judgment rendered.

It is suggested that the question involved has not been passed upon by the court of appeals. But there are several well considered cases in this court holding that an action to reform a deed .must be brought within ten years, and we deem it right to follow those decisions. Hoyt v. Putnam, 39 Hun, 402; Oakes v. Howell, 27 How., 145; Cramer v. Benton, 4 Lans., 294. Burnett v. Wright, 44 St. Rep., 14, was an action to foreclose and reform a mortgage drawn on one of the usual blanks, the scrivener omitting to insert in the defeasance clause the amount of the mortgage debt. It read thus: “ This grant is intended as security for the payment of -,” without inserting any amount. The action was brought nineteen years after the execution of the instrument.

This court held that it was a case where it was necessary to reform the mortgage, and that the action for the reformation must be brought within ten years. The judgment was reversed by the court of appeals, 135 N. Y., 541; 48 St. Rep., 541, on the sole ground that no reformation was required; that the morlgage had as much force as if drawn in the form of a deed, and that a defeasance need not ever be in writing, but may be shown by parol. The court of appeals did not overrule the doctrine declared by the general term, that an action to reform a deed must be brought within ten years, but apparently acquiesced in that regard in the ■decision of the court below. Hence the case cited is an authority that ten years limitation applies to an action to reform a mortgage.

I am unable to concur in the view stated in Syms v. The Mayor, 50 N. Y. Supr. Ct., 289-294, as applicable to such a case as this. The error in the description of the mortgage in suit was caused by a mutual mistake, as found by the referee. There was no fraud, actual or constructive. Hence the provisions of sub-division 5, § 382, Civil Code, are not applicable. The cause of action accrued on the delivery of the mortgage, over ten years prior to the commencement of the action. It is a case where the provision of § 388 applies. The case of Welles v. Yates, 44 N. Y., 525, was a case of fraud, and hence not similar to the one under consideration. We therefore conclude that the right to reform the mortgage was barred by the statute of limitations.

But the learned counsel for plaintiff claims, as I understand his position, that the agreement of defendant, in consideration of the $3,000 advanced to him, to execute a mortgage upon all of .his real estate, was in equity a mortgage thereon, and that a portion of the said real estate being omitted by mistake, and not included therein, will be treated in equity as being embraced therein, and that hence in fact no reformation of the instrument was necessary. That there being a valid equitable mortgage upon .all of defendant’s premises, the action thereon is not barred while the bond remains in force. This position is a novel one, and we think cannot be sustained. The parties having reduced their ■contract to writing, the writing, unless reformed, must govern. Doubtless if the action had been commenced in time equity could have reformed the contract and made it conform to the real agreement of the parties. But the right to reform having been lost by the lapse of time, the written contract must govern.

In Burnett v. Wright, supra, it did not apparently occur to the members of the court, at general term or in the court of appeals, that the mortgage in that case was an equitable one and was to all intents and purposes as valid as though the agreement of the parties had been wholly embraced therein. The general term in effect held a contrary doctrine, and the court of appeals decided that it was not an equitable, but a legal mortgage. In that case, had the mortgage only covered a part of the premises agreed to be covered I infer from the opinion that the court of appeals would have held a reformation necessary.

Our conclusion is that the order allowing an amendment should be reversed and the motion denied, and the judgment should be modified in pursuance of this memorandum, with costs to the appellant.

Mayham, P. J., and Herrick, J., concur.


author: Per Curiam.

text:
    Clara M. Jacobie, App’lt, v. Henry Mickle, Impl’d, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Foreclosure — Action on first mortgage unnecessary where'.
    HOLDER WAS MADE A PARTY AND HIS RIGHTS PROTECTED ON FORECLOSURE OF SECOND MORTGAGE.
    Plaintiff held a fifst mortgage on certain premises. She was made a. party to the foreclosure of the second mortgage, in which a sale was> directed and her mortgage directed to he first paid out of the proceeds. Pending said action she commenced this action to foreclose her mortgage. Held, that she was hound hy the judgment in the other action, and that her complaint was properly dismissed.
    2. Appeal—Court bound by the facts appearing in the case.
    The appellate court is compelled to decide the questions submitted to it. on the facts appearing in the printed case.
    Appeal from judgment dismissing the complaint on the-merits.
    This action was brought in September, 1891, to foreclose a> mortgage upon real estate in Warren county.
    The defendant, Guilford, has a second mortgage upon the same-premises, and he brought an action in this court in July, 1891,. prior to the commencement of this action, to foreclose his mortgage, making the plaintiff in this action a party defendant. The complaint contained an allegation that the defendant, Jacobie, was the owner and holder of a prior mortgage to that of plaintiff therein upon the premises, which was past due, giving in detail date, record, etc.
    A decree was asked for the sale of the mortgaged premises free-from the lien of plaintiff’s and defendant Jacobie’s mortgage, and that defendant Jacobie’s mortgage be first paid out of the proceeds of the sale of the mortgaged premises.
    Tlie defendant, Jacobie, did not answer or demur to the complaint, and as to said defendant the bill was taken as confessed. After the issues joined by the answer of the defendant, Crandallr had been tried, an order of reference was duly made by Mr. Justice Stover upon the application of the plaintiff (Guilford) in said action to ascertain and report the amount due upon the defendant, Jacobie’s, mortgage (being the mortgage in suit in this action.)
    Evidence was given upon said reference by said Jacobie, and also by Guilford, the .plaintiff therein, and a report was duly made, from which it appeared that there was due thereon $1,203.85, July 7, 1892.
    Upon said report and the report upon the trial of the issues, and upon plaintiff’s application in said action, judgment was duly granted for the sale of the premises in question and for the payment first of the mortgage of Jacobie, and then of Guilford’s mortgage, and the usual provision in said decree which forever barred and foreclosed the rights and interests of all the parties to said action. This decree was granted by Mr. Justice Stover at his special term, in July, 1892.
    The defense in this action is, first, the pendency of the former action; and second, the decree granted therein in July, 1892) which is pleaded by a supplemental answer as res adjudícala.

    The amount due is conceded to be $1,203.85.

      King & Ashley (H. Prior King, of counsel), for app’lt; J. H. Bain, for resp’t.
   Per Curiam.

We think the court below reached a correct conclusion. In the foreclosure action brought by Samuel T. Guilford .against the plaintiff and others on the second bond and mortgage, plaintiff was made a party defendant, and did not answer or demur, and judgment in the action was regularly and properly entered for the sale of the mortgaged premises and for the payment of plaintiff’s bond and mortgage out of the first proceeds.

We think, under the circumstances, plaintiff being a party to that action, and not having answered or demurred, is bound by the judgment. See Guilford v. Jacobie, 52 St. Rep., 837-838.

It would seem almost absurd to allow the plaintiff to obtain another judgment for the sale of the mortgaged premises.

It is suggested that the “ Guilford ” j udgment has been reversed. But we are compelled to decide the question submitted to us on this appeal on the facts appearing in the printed case. The fact of the reversal of said judgment does not appear in the case, and did not appear on the trial in the court below.

The proper remedy for the plaintiff, under the circumstances, is probably by motion in the court below. Parkhurst v. Berdell, 110 N. Y., 392; 18 St. Rep., 193.

The judgment should be affirmed, with costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.


text:
    Joseph Wood, App’lt, v. John A. Munson, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Physicians—Professional services rendered by health officer of town—Claim cannot be made against town and patient.
    In an action for services, defendant counterclaimed for professional services as physician rendered to plaintiff’s family during an epidemic of typhoid fever. It appeared that defendant was health officer of the town, and that he had included the services, rendered to plaintiff’s family in his verified bill presented to the town; that the town board, in auditing his bill, allowed him twenty-five dollars for such services, which he accepted, and the counterclaim was for the balance. Held, sufficient to justify a finding that defendant’s bill for such services was a charge against the town; that the audit was a legal adjudication of the amount due thereon, and that that transaction extinguished his claim against plaintiff, if any such claim ever existed.
    Appeal from judgment of the county court of Sullivan county, reversing judgment of justice’s court in favor of plaintiff.

      George H. Decker, for app’lt; George H. Smith, for resp’t.
   Putnam, J.

This action was brought in justice’s court to recover the sum of twenty dollars, a balance due plaintiff for services performed for defendant.

The latter is a physician, and the health officer of the town of Pallsburgh (where the parties reside) and had attended the family of plaintiff through an epidemic of typhoid fever, making forty visits, of the value of eighty dollars. He, was paid twenty-five dollars, as below mentioned, on account of said services, and the balance, fifty-five dollars, he set up before the justice as a counterclaim.

It was shown upon the trial that defendant, after the attendance upon the family of plaintiff as aforesaid, presented a verified bill to the town for said attendance and for other services, of which the following is a copy, to wit:

“Town of Fallsburgh,
To Dr. J. A. Munson, Dr., as Health Officer of said Town.
1888.
July 6th. To distributing notice through town....... $2 05
10th. “ “ “ “ “ ....... 2 05
Aug. 17th. To investigating nuisance upon premises of
Ed. Yielee........................ 2 05
To attending the family of Joseph H. Wood through an epidemic of typhoid fever from October 16, ’88, to December 26,
’88 (inclusive) 40 visits at $2.00....... 80 05
Dec. 18th. To meeting with board ................. 2 05
To reporting 19 births at 25 cts........... 4 75
To reporting 14 deaths at 25 cts.......... 3 50
Total........................ $96 25
“State of New York, 1
“ Sullivan County. j 551
“ Dr. J. A. Munson, being duly sworn, says the items mentioned and set forth in the annexed account have been in fact performed or rendered, and are correct, that the whole amount thereof is justly due and that no part thereof has been paid or satisfied.”
“ Dr. J. A. Munson.
“Sworn to before me this 6th day of November, 1889.
“ Benjamin Yernoot,
“Notary Public.”

The bill was presented to the board of town auditors of said town, who allowed thereon the sum of forty-one dollars and twenty-five cents, twenty-five dollars of which was so allowed on the claim for attendance upon the plaintiff’s family.

The justice gave judgment for the plaintiff for the full amount of his claim, disallowing the counterclaim of defendant. We think he reached a conclusion warranted by the evidence.

The defendant was a health officer and attended the family of plaintiff, who were ill with a contagious disease. He afterwards made out a bill charging the town for said atiendan ce_aud for other services and verified it. The town officers acted on the bill and allowed it at forty-one dollars and twenty-five cents, which sum defendant accepted and received.

The verified bill of defendant so presented to the auditors was evidence, as against him, that he was employed by the town to attend the family of plaintiff. In fact, in the affidavit attached to the bill, he swears he was so employed. The fact that the auditors allowed a portion of defendant’s charge for attendance on the family of plaintiff is also evidence tending to show such employment. The town auditors had no right to make the defendant a present of twenty-five dollars, or to make any allowance on account of the services in question, unless a legal charge against the town. The justice, therefore, had sufficient evidence before him to justify a finding that defendant’s bill for attendance on plaintiff’s family sought to be interposed as a counterclaim was a charge against the town. He had before him the claim of defendant to that effect sworn to and the action of the town authorities allowing a portion of the bill.

It is true defendant testifies that he was not authorized by the board of health or the overseer of the poor to attend plaintiff’s family; but it was a question for the'justice what force, if any, he would, give to the testimony of a party to the action, contradicted as he was by his own affidavit and the action of the town board of auditors. The justice was not compelled to believe what the defendant testified to. Hodge v. City of Buffalo, 1 Abb. N. C., 356. He could properly determine on the evidence before him that defendant’s said services were performed on the credit of •the town and on the employment of the town officers.

It follows, therefore, that on the evidence presented to him the justice was authorized to find that defendant’s bill interposed as a counterclaim was for services performed for the town of Falls-burgh, and for which that town was liable. The defendant presented his bill against the town therefor, which was acted upon by the town auditors, and allowed at twenty-five dollars, which sum defendant voluntarily accepted and received.

The presentation, audit and acceptance, we think, extinguishes defendant’s alleged counterclaim. He voluntarily presented it as a claim against the town, and the audit of the town board of auditors was a legal adjudication of the amount due thereon. People ex rel. Myers v. Barnes et al., 114 N. Y., 317; 22 St. Rep., 164; 23 id., 795.

The sum audited he accepted, and the effect of said transaction was necessarily to extinguish the claim as against the town. If there was any liability on the part of the plaintiff, as well as the town, for the defendant’s attendance on his family, which defendant might have properly claimed, his presentation of the bill to the town, and acceptance of the amount at which it was audited, we think must have the effect of also extinguishing the claim as against the plaintiff.

As said by Landon, J., in Coonley v. Wood, 36 Hun, 559-561, a case where one of two joint and several debtors had obtained a satisfaction of a judgment as, against himself, “ but, if the debt be satisfied by either, nothing remains for either to pay. If the judgment was satisfied the debt was satisfied, and to allow the plaintiff to recover again would be to allow him to receive satisfaction twice upon one debt”

So, in this case, defendant presented his claim to the town auditors as against the town, and accepted the sum that they allowed thereon in payment. We think the transaction extinguished his claim against the plaintiff, if any such claim ever existed. |

The judgment of the county court should be reversed, and that of the justice affirmed, with costs to appellant in this court and in the county court.

Mayham, P. J., and Herrick, J., concur.


text:
    Kate M. Brennan, App’lt, v. William Ellis, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    ^Landlord and tenant—Negligence—Injuries caused by want op repairs.
    Where a landlord is notified of the dangerous condition of a portion of the premises resulting from a want of repairs which he is hound to have done, he does not discharge his duty by contracting with a competent man to repair it, but remains liable where the contractor fails to do the work for an injury caused by the want of such repair.
    Appeal from judgment in favor of defendant, entered upon verdict of jury and. from order denying motion for a new trial on the minutes.

      Lansing & Cantwell (James Lansing, of counsel), for app’lt; Merritt & Ryan (James II. Ryan and Henry L. Landon, of counsel), for resp’t.
   Putnam, J.

The action was brought to recover damages for the alleged negligence of the defendant, the owner of an apartment house in the city of Troy, in allowing .a bridge laid from the second story of said house to the water closet in the rear to remain out of repair, in consequence of which plaintiff was severely injured.

It is not denied that it was the duty of defendant to use reasonable care in keeping the bridge in a safe condition, nor that the testimony in the case rendered it proper to submit to the jury the question whether said care was in fact used.

The court in his charge used the following language, viz.: “ So that the question is not necessarily disposed of when you find (if you should find) that Mr. Wylie did not nail these boards. You may say it is sufficient, that it was sufficient, for this defendant to go to an experienced carpenter, if he did as he says he did, and as the carpenter says he did, and say 1 This structure, which was originally safely constructed, is out of repair, and I want you to go over it and look it over and make repairs and put it in condition.’ How that he testifies he did; that Mr. Wylie testifies he told him to do, and that he says he undertook to do. * * If

you say as prudent, reasonable men that in your judgment that is all that could be expected of a man under such circumstances, that it is what any other careful and prudent man wonld do, it would be your duty to find, of course, that he had not neglected to perform any duty which he owed to this plaintiff,, or to any other tenant in the occupation of this building.”

The only question necessary to be considered is as to the propriety of the portion of the charge above quoted.

Assuming that the relation of master and servant, or principal and agent did not exist between defendant and Wylie, and that the latter occupied the position of a contractor, see Larow v. Clute, 37 St. Rep., 859; Wood v. The City of Watertown, 58 Hun, 304; 34 St. Rep., 808, the question arises whether defendant, being notified of the dangerous condition of the bridge, discharged his duty by contracting with a competent man to repair it, and was not thereafter liablé, although the contractor failed to do the work.

It is well settled that where an owner enters into an agreement with a contractor to do work, the former is not ordinarily liable for damages arising from any negligence of the latter in the doing of the work. But we understand that if the work is a repair which the owner is bound to have done and the contractor fails to do it, the owner remains liable for the injury caused by the want of such repair. Sturges v. The Theological Society, 130 Mass., 414, 415; Gorham v. Gross, 125 id., 232, 240.

In Pickard v. Smith, 100 Eng. Com. Law Rep., 470, it is held, page 479, “If an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or ■ negligence, the employer is not answerable. * * * * That rule is, however, inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do; nor, by the parity of reasoning, to cases in which the contractor is intrusted with the performance of a duty incumbent upon his employer, and neglects its fulfilment, whereby an injury is occasioned.” See also Worthington v. Barker, 11 Daly, 545-546.

We think, therefore, that the defendant was not relieved from liability for the defective condition of the bridge in question by employing a competent contractor to repair it, and that in consequence of the instructions above quoted, given to the jury by the trial court, there should be a new trial.

We think, also, that the exception of plaintiff to the refusal of the court to charge as requested sufficient to raise the question above considered. But if not, this is a case where a new trial should properly be granted without an exception, within Whittaker v. D. & H. C. Co., 49 Hun, 400, 405; 22 St. Rep., 405, and Roberts v. Tobias, 120 N. Y., 5, 6; 31 St. Rep., 950.

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

Herrick, J., concurs.


author: Bischoff, J.

text:
    Moritz Berkowitz et al., Pl’ffs, v. Ignatz Brown, Def’t.

      (New York Common Pleas, Equity Term,

      Filed February 27, 1893.)

    1. Husband and wife—Conveyances between, prior to 1887—Title.
    In 1858 a married woman attempted to convey mortgaged premises by deed directly to her husband. Held, that such deed was void and upon her death intestate the title descended to her heirs at law, notwithstanding the deed, and that the rights of certain of said heirs who were not made parties to a subsequent suit to foreclose the mortgage were valid and existing in the property.
    2. Judgment—Presumption as to service op process.
    The presumption is that a court would not have rendered a judgment except upon due proof of the service of process, and such presumption is strengthened by a recital in the judgment ‘ ‘ upon reading and filing due proof of the service of the summons and complaint.” Jurisdiction will he presumed unless want of sufficient service of process either affirmatively appear from the judgment roll or be established in an action or proceeding impugning the judgment.
    3. Adverse possession—Husband and wipe.
    Adverse possession of the premises above referred to by the husband against the wife is not predicable of his residence therein with her after the attempted conveyance to him.

      4. Same.
    ■ Title hy adverse possession cannot be made out hy “tacking” a period of possession after tike wife’s death by the husband and those claiming under his alleged title, and a, subsequent period of possession by the purchaser at the foreclosure sale and his grantees.
    Action by vendors against vendee for specific performance of an agreement for the sale and exchange of real property.
    A. H. Berrick, for pl’ffs; A. Stern, for def't.
   Bischoff, J.

Plaintiffs agreed with defendant to convey to him their premises, 114 Willett street, in the city of New York, in exchange for his premises, 102 Columbia street. At the time appointed for the exchange of deeds, defendant refused to accept the one tendered him by plaintiffs, on the ground that it did not assure a marketable title, and thereupon plaintiffs brought this action for specific performance of the agreement.

On April 1, 1849, Catharine Wirth joined her husband, Jacob Wirth, in the execution of a mortgage to Samuel Leach upon the Willett street premises to secure the payment of $3,500. On June 25, 1858, it is conceded, Catharine Wirth was seized of the premises in fee, and by deed of that date she attempted to convey them directly to her husband. She died in June,. 1867, intestate, and without issue, leaving her surviving her husband, said Jacob Wirth, and five sisters and four brothers, Catharine Lafore or Lafour, Phillipina Blaut, Elizabeth Miller, Caroline Gfettell or Guttel, Anna Maria Scliier, Philip Geib, Nicholas Geib, Adam Geib and Peter Geib, her only heirs at law. The marital relations of Catharine and Jacob Wirth appear to have been continuous up to the time of her death, and for fourteen years immediately preceding the last mentioned event they resided together upon the' premises in question. No issue appears to have been born of their, marriage at any time.

Upon his wife’s death Jacob Wirth continued in possession until some time in 1870, when he purported to convey the premises to Philip Geib, a brother and one of the heirs at law of his deceased wife, by deed duly executed for such purpose. Philip Geib assumed possession under the deed to him, and so continued until the time of his death. In 1873 or 1874, Philip Geib also died intestate and left surviving Phillipine, his widow, and five children, Philip, Catharine, Jacob, Charles Peter and Louisa, his only heirs at law, who continued in possession of the premises until October, t1877. In May, 1877, Silas Davis, to whom the mortgage of Catharine and Jacob Wirth to Samuel Leach had been assigned,, commenced an action in the supreme court to foreclose it. At this, time all of the heirs at law of Catharine Wirth, except Philip Geib, and the heirs at law of the latter, his five children, were; surviving, two of such children and heirs at law of Philip Geib,, Charles Peter and Louisa Geib, being then infants finder the age of fourteen years. Jacob Wirth, the husband of Catharine Wirth, Phillipine Geib, the widow of Philip Geib, and all the surviving heirs at law of Catharine Wirth, except Phillipina Blaut, Caroline Gettell, Anna Maria Schier, Adam Geib and Peter Geib, as well as the surviving heirs at law of Philip Geib, were made parties defendant to the foreclosure action. Judgment was therein entered and a sale thereunder had, at which Silas Davis was the purchaser, and under the referee’s deed to him, which is dated October 12, 1877, the latter entered into possession. Davis continued in possession until October 16, 1889, when he conveyed the premises to Luny and Parker, who in turn conveyed them, on March 3, 1890, to Bernard Silberstein, and the last named grantee conveyed them to plaintiffs by deed dated October 1, 1890, under which they obtained and held possession. From the affidavits of service of the summons annexed to the judgment roll in the foreclosure action, it appears that Charles Peter Geib and Louisa Geib were served with the summons by delivery of a copy thereof to each of them; but it does not appear therefrom that a copy was also delivered for either to their mother, Phillipine Geib, with whom both infants at the time resided.

Upon the foregoing facts, defendant’s counsel contends that plaintiffs’ title to the Willett street premises is defective, because the deed from Catharine Wirth to her husband, Jacob Wirth, was void and ineffectual to convey the fee; that upon the death of Catharine Wirth her heirs at law were seized of the premises; that Phillipina Blaut, Caroline Gettell, Anna Maria Schier, Adam Geib and Peter Geib, five of said heirs at law, were not precluded by the judgment and sale in foreclosure, because they were not made parties to the action; and that Charles Peter Geib and Louisa Geib were not thereby precluded, because it does not appear from the judgment roll that jurisdiction either of their persons or of their property was acquired by service of the summons as prescribed by law.

I concur in the view that Jacob Wirth acquired no interest in the premises from his wife’s attempted conveyance thereof to him. Before the enactment of chapter 537 of the Laws of 1887, which declares that conveyances from husband to wife, and vice versa, thereafter made, shall be valid and effectual, the deed of a married woman made directly to her husband was void, absolutely in law, White v. Wager, 25 N. Y., 328; Winans v. Peebles, 32 id., 423 ; Hunt v. Johnson, 44 id., 31, and presumptively in equity. Pomerov’s Eq. Jur., Vol. 2, §§ 955, 963; Dean v. M. E. R. Co., 119 N. Y., 540; 30 St.Rep., 81; Darlington's Appeal, 27 Am., 726. To sustain the validity of the deed in equity it was incumbent upon him who asserted it to show affirmatively that it was advantageous to 1 the wife, that it was given not only for valuable, but also fo$ adequate consideration, and that its execution and delivery were free from the exercise of undue influence by the husband. The mere recital of acknowledgment of the receipt of a consideration was palpably deficient for these purposes.

That upon the death of Catharine Wirth intestate and without issue, therefore, her heirs at law were seized of the premises, and that such of them, and the heirs at law of such as had since died, who were omitted as parties to the foreclosure action, or of whoso persons or property jurisdiction was not therein acquired, are not bound by the judgment and sale thereunder, are self-evident propositions, which require no discussion.

I do not, however, agree with defendant’s counsel that the judgment of foreclosure and the sale thereunder' arc inoperative respecting the interests of the defendants Charles Peter Gfeib and Louisa Gfeib in the mortgaged premises. Both defendants were, at the time of service of the summons upon them, infants under the age of fourteen years. The Code of Procedure continued in force, as the Code of Remedial Justice, subsequently designated the Code of Civil Procedure, had not yet taken effect. Laws 1876, ch. 448, § 1496. passed June 2, 1876; Laws 1877, ch. 416, § -4, passed June 5, ■ 1877.

It provided then, § 134, subd. 2,.as the Code of Civil Procedure now provides, § 426, subd, 1,-that service of the summons upon an infant defendant under fourteen years of age must be made by delivery of a copy to the infant personally, and another to his father, mother or guardian, or if there be none within the state, then to the person having the care and control of the infant, or with whom he shall reside, or in whose service he shall be employed; and the omission to deliver a copy of the summons to one of the ¡rersons designated, as well as to the infant, has been adjudged to prevent the acquisition of jurisdiction of the person or property of the latter, and that as to him a judgment or decree in the action would be without any force or effect whatsoever. Ingersoll v. Mangam, 84 N. Y., 622 ; Bellamy v. Guhl, 62 How. Pr., 460. But in both of the cases cited the omission to make sufficient service was affirmatively shown. The presumption is that the court would not have rendered the judgment, or made the decree, except upon due proof of the service of the summons in the action in the manner prescribed by law, and this presumption is in the instance of the judgment under examination materially strengthened by the fact that it recites that it was made upon “ reading and filing due proof of the service of the summons and complaint.” Precarious, indeed, would the rights sought to be acquired by judicial decree seem if their tenure were dependent .upon the safe keeping of the affidavit or other instrument from which its jurisdiction was apparent to the court when the decree was made. The fact, therefore, that the proofs of service which are annexed to the judgment roll are deficient, in that they do not show sufficient service, does not impeach the jurisdiction of the court to render the judgment which was entered, and in terms precluded the infant defendants of their respective interests in the mortgaged premises. To destroy the presumption of jurisdiction the want of sufficient service of the summons must either affirmatively appear from the record of the foreclosure action, or the fact of non-service of the summons upon the mother of the defendants Charles Peter and Louisa Geib should have been established in this action. Bosworth v. Vandewalker, 53 N. Y., 597. Neither is the case.

As to Phillipina Blaut, Caroline Gettell, Anna Maria Schier, Adam Geib and Peter Geib, five of the heirs at law of Catharine Wirth, who were not made parties to the foreclosure action, plaintiffs insist that they have acquired title by adverse possession; but an analysis of the evidence adduced on the trial points irrofragably to the contrary.

Adverse possession of sufficient duration operates to transfer the title and right of possession of the true owner to the possessor as effectually as if conveyed by deed, Baker v. Oakwood, 123 N. Y., 16; 33 St. Rep., 223; but to have that effect it is not enough that the true owner has not been in actual possession for twenty years and upwards. It must appear that the person claiming under adverse possession, and those under whom lie claims, have been in continuous possession under the same claim of title exclusive of any other right for not less than the statutory period. Code of Civil Procedure, §§ 368, 369; Buttery v. R., W. & O. R.R., 14 St. Rep., 131; Casey v. Dunn, 29 id., 355 ; Baker v. Oakwood, supra; Ward v. Warren, 82 N. Y., 265 ; Jackson v. Burton, 1 Wend., 341; Jackson v. Johnson, 5 Cowen, 74; Doe v. Thompson, 5 Cowen, 371; Thompson v. Burhans, 79 N. Y., 99; Buss v. Johnson, 94 N. Y., 235; Sherman v. Kane, 86 N. Y., 57. If adverse possession once commenced ceases within twenty years, the possession will be deemed to have been returned to the owner of the legal title. Bliss v. Johnson, 94 N. Y., 235. The dispossessor of him who has the legal title, or the persons claiming under the dispossessor, must not have recognized the legal title within twenty years. Mayor v. Mott, 39 St. Rep., 329 ; Greene v. Couse, 127 N. Y., 386 ; 38 St. Rep., 926; Jackson v. Britton, 4 Wend., 507; Jackson v. Cuerden, 2 Johns. Cases, 353; Same v. Croy, 12 Johns., 427; Same v. Given, 8 id., 137; Same v. Smith, 13 Johns., 406; Northrop v. Wright, 7 Hill, 476; Duetrich v. Noe, 51 Am. St., 788; Am. & Eng. Ency. of Law, vol. 1, p. 272; Lawson’s Rights, Remedies and Practice, vol. 6, p. 4403. Nor can several successive and independent possessions be “ tacked"’ to make adverse possession of sufficient duration. Lawson’s Rights, Remedies and Practice, vol. 6, p. 4405; Am. & Eng. Ency. of Law, vol. 1, p. 269. To render the successive possessions of several persons continuous there should appear to be some privity of title or possession between them.

At common law the husband was entitled to possession of his wife’s lands during coverture, and to the usufruct thereof. Tyler on Infancy and Coverture, ch. xxii., § 260, p. 393. He, therefore, obtained possession as of right and in subordination of his wife’s seisin. His possession was her possession, and to urge that lie was in possession in hostility to his wife’s right of possession is to maintain that he could hold adversely to himself. Hence, the doctrine of adverse possession never applied as between husband wife Am. & Eng. Ency. of Law, vol. 1, 250; § 18, title “Adverse Possession.” The act of 1848,as amended in 1849, Laws 1848, Ch. 200 ; Laws 1849, ch. 375, enabled a married woman thereafter to acquire and hold land with like effect as though she were a feme sole, but did not otherwise destroy the legal unity of husband and wife. His place of residence remained her residence, and her possession of his dwelling house remained hi,s possession. Adverse possession of the Willett street premises, therefore, by Jacob Wirth, as against his wife is not predicable of his residence there, it appearing at the same time that she resided with him and that their marital relations continued uninterruptedly up to the time of her death. Dunham v. Townshend, 118 N. Y., 281; 28 St. Rep., 864; see also Vandevoort v. Gould, 36 N. Y., 639.

No issue was born of their marriage; hence Jacob Wirth, upon his wife’s death, was not entitled to continue in possession of his wife’s realty as tenant by the curtesy, Wasliburn on Real Property, vol. 1, ch. vi, § 7, as otherwise he would have been, Hatfield v. Sneden, 54 N. Y., 280; and for the purposes of this action we will,.therefore, assume that immediately upon his wife’s death, in June, 1867, Jacob Wirth’s continuance in possession became adverse to the right of possession of her heirs at law, and that this adverse possession was transferred to his grantee and descended to the latter's heirs at law. Those in possession under Jacob Wirth, however, were themselves turned out by the entry into possession in October, 1877, of Silas Davis under the referee’s deed in foreclosure to him. Any adverse possession, therefore, having its origin in Jacob Wirth’s continuance in possession after his wife’s death came to an end after a duration of only little more than ten years. On the trial plaintiffs disclaimed the accrument to them of any title to the premises or right to the possession thereof through the foreclosure action, and obviously if the disclaimer be persisted in, there is no privity either of title or possession between them and Jacob' Wirth, or those deriving possession under him.

In so far as the adverse possession having its origin with the entry of Silas Davis is concerned, it is wholly independent, therefore, of those ousted or dispossessed by him. On the other hand, if the disclaimer of the accrument of title or right of possession through the foreclosure action be withdrawn, and it be now insisted that the judgment of foreclosure therein and the sale thereunder operated to transfer the possession of those claiming under Jacob Wirth to the purchaser, then it must be conceded that the judgment and sale effected a like transfer of the right of possession and legal title of such of the heirs at law of Catharine Wirth who were made parties defendant to the action; and tbs fact of their having been made such parties to bar them of the equity of redemption and their right of possession, with the further fact that the purchaser under the foreclosure sale entered into possession under the judgment and sale to him, amounts to an unequivocal admission of the legal title in the heirs at law of Catharine Wirth at the time of foreclosure. There is nothing to indicate that Silas Davis entered and continued in possession pursuant to the transfer of Jacob Wirth’s adverse possession to him rather than under the transfer of the legal title of Catharine Wirth’s heirs at law to him, supposed to have been accomplished by means of the foreclosure action. Hence, the adverse possession of Jacob Wirth, commencing with the death of his wife, in June, 1867, cannot be said to have continued after Davis entered into possession, in October, 1877. Adverse possession depends upon the intention of the possessor to hold adversely. Culver v. Rhodes, 87 N.Y., 348; Jackson v. Thomas, 16 Johns., 293.

The presumption always is, until the contrary appears, that the person in possession has derived it from and holds it with the consent of the owner of the legal title. Code Civ. Pro., § 368. A claim of adverse possession, therefore, necessarily requires strict proof to substantiate it, Jackson v. Sharp, 9 Johns., 163 ; Schwallback v. C. M. & St. P. R. R. Co., 2 Am. St., 740, and until it has ripened into title nothing will be presumed in its favor. A. B. N. Co. v. N. Y. E. R. R. Co. et al., 129 N. Y., 252, 260; 41 St. Rep., 531. Davis, the purchaser, having by means of the foreclosure sale acquired the legal title of such of the heirs at law of Catharine Wirth who were made parties to the action, and who with the heirs omitted as parties were entitled to rightful possession of the premises as tenants in common, he cannot, as matter of law, be said to have entered into and retained possession under an adverse holding founded upon a different claim of title which may have been transferred to him at the same time, in preference to the rightful possession secured from some of the heirs at law who were legally entitled to possession, in the absence of evidence demonstrating that such was his intention. A. B. N. Co. v. N. Y. E. R. R. Co. et al., 129 N. Y., 252, 260; 41 St. Rep., 531. Hence, it cannot be successfully urged in this action that there was a continuity of adverse possession, originating with Jacob Wirth upon the death of his wife, in June, 1867, under the same claim of title and exclusive of any other right, Code Civ. Pro., § 369, after Davis’ entry in October, 1877, under the foreclosure sale to him. Davis’ claim of title and right of possession is founded upon the foreclosure judgment and sale, and in so far as his possession is adverse to the claims of the heirs at law of Catharine Wirth it has not yet endured for twenty years and is ineffectual as a bar.

Por the reasons stated, I am of the opinion that such of the heirs at law of Catharine Wirth who were not made parties to the foreclosure action may still recover their rights or interests in the Willett street premises; that plaintiffs, therefore, did not, and cannot now, tender defendant a title to or right of possession of the premises free from reasonable doubt. Pomeroy on Specific Performance of Contracts, § 198 ; Kilpatrick v. Barron, 125 N. Y., 751; 36 St. Rep., 15.

Judgment must, therefore, be for defendant, with $250 damages, besides the interest thereon and the costs of this action.


author: Giegerich, J.

text:
    Samuel T. Walker, Pl’ff, v. Mary A. Scott, Def’t.

      (New York Common Pleas, Special Term,

      Filed April 1, 1893.)

    1. Pleading—Action removed from district court—Counterclaim:.
    An answer in an action removed to this court from a district court, where the pleadings were oral, and in which an order has been entered requiring the pleadings to he reduced to writing, which sets up new defenses and a larger counterclaim, without leave of the court, is unauthorized and a violation of said order.
    2. Same.

      Semble, that in such case a counterclaim cannot he set up in the answer in excess of the amount for which (he district courts can entertain jurisdiction.
    Motion to strike out an answer.
    The action was commenced in the district court in the city of New York for the ninth judicial district. The pleadings were oral. The complaint was for $162 commissions on the exchange of real estate, and the answer was a general denial and a counterclaim for $100. On the defendant’s application, the case was removed to this court. Under an order that the pleadings be in writing, a sworn complaint was served. The written answer of the defendant admits that the plaintiff was the broker through whom the negotiations were made, and interposes a counterclaim for $500, the alleged difference between the actual value of the property purchased and the price paid upon plaintiff’s representation of its value. The answer also alleges that the plaintiff has assigned his interest in the claim or demand sued upon, and that the plaintiff is not the real party in interest. The plaintiff then moved to strike out the answer served upon him.

      Robert J. Robeson, for pl’ff and motion; Jared F. Harrison, for def’t, opposed.
   Giegerich, J.

The rule that the issues created by the pleadings in an action commenced in one of the district courts in this city are those to be tried on its removal to this court, Smith v. White, 23 N. Y., 572; Salter v. Parlchurst, 2 Daly, 240; Druckenmiller v. Shoninger, 15 id., 477; 29 St. Rep., 142, is subject to the qualification that the action so removed “ continues in all respects to be an action in a district court, the trial of which is to be had in this court.” Salter v. Parkhurst, supra, per Brady J.; Latteman v. Fere, 11 Civ. Pro., 217-222, Bookstaver, J. As was well said by Bookstaver, J., in Latteman v. Fere, supra: “If it continues to. be, in effect, an action in a district court, then it must be subject to the incidents of such an action, among which is the right of an amendment of the pleadings within the limits of the jurisdiction of the district courts.” Section 2944 of the Code of Civil Procedure (which § 1347 of the consolidation act, Laws of 1882, chap. 410, expressly makes applicable to district courts), prescribes; “The court must upon application allow a pleading to be amended at any time before the trial, or during the trial, or upon appeal, if substantial justice will be promoted thereby.” I concur in the opinion expressed by the learned judge in Latteman v. Fere, supra, that pleadings “ may be amended within the limits of original jurisdiction.”

¡Now, was the interposition of the counterclaim for a sum in excess of the amount claimed in the court below warranted under the circumstances ? The consolidation act (§§ 1361, 1318, 1383)--permits a counterclaim to be interposed in district courts. The same, however, omits to make the provisions of the Code of Civil Procedure relative to counterclaims in justices’ courts (§§ 2945, 2950) applicable. See Laws 1882, chap. 410, §§ 1285, 1343. It is to be regretted that these provisions have not been made a part of the consolidation act, because ample remedy is thereby afforded to those having counterclaims in excess of the amount for which the-district courts can entertain jurisdiction. Under the old practice the jurisdiction of the district courts was' restricted to cases- “ where the sum recovered shall not exceed $250, notwithstanding the accounts oí both parties may exceed $400.” Laws 1857, chap. 344, § 3, subd. 1; Langbein’s List. Ct. Pr., Ed. 1872, p. 33. A careful scrutiny of the consolidation act shows that these provisions have not been retained, and that the jurisdiction of these-courts has been limited to cases “ where the sum claimed does not exceed $250. Laws 1882, chap. 410, § 1285.

Further examination shows that § 3215, subd. 1, of the Code of Civil Procedure, expressly provides that subdivisions 1 and 4 of § 2863 do not apply to an action brought in the district courts, the latter providing: “ 4. Where, in a matter of account, the sum total of the accounts of both parties proved to the satisfaction of the justice exceeds $400.” These views, I think, are confirmed by the cases of Ludwig v. Minot, 4 Daly, 481, and Druckenmiller v. Shoninger, supra. The former arose under the act of 1857, and it was held therein that more than $250 may be recovered in an action removed from a district court to this court, if claimed in the summons. The latter arose subsequent to the enactment of the consolidation act. That case was commenced in a district court to recover $250, and was removed to this court on the defendant’s application. The complaint subsequently served demanded judgment for $700.. The defendants answered denying the jurisdiction of the court. The plaintiff demurred to the answer, and the demurrer was overruled on appeal, and the order appealed from affirmed. Larrcmore, C. J., in delivering the opinion of the court in that case-(p. 478) says: “It might be said that no meritorious objection could be made to plaintiff serving a written complaint, after removal to this court, demanding damages for a sum in excess of the amount the district courts could entertain jurisdiction for-, but such practice would unsettle all orderly methods of procedure.”

Inasmuch as the counterclaim interposed by the written answer is for a sum greater than this court has power in this action to-entertain jurisdiction of, I am of the opinion that the court would not have had the power to amend the answer as served even had the defendant applied for permission to do so. Assuming, however, that I am in error as to the views above expressed, still the service of the answer which sets up new defenses, and interposes a counterclaim for a larger sum, without leave of court, was unauthorized, and in violation of the order entered herein, “ that the pleadings in this action, originally brought in the district court in the city of New York for the ninth judicial district, be reduced to writing.” Smith v. White, supra.

Motion granted, unless the defendant shall apply for and obtain leave of court to amend the answer within a period of time to be specified in the order to be entered on this decision; but in view of the novelty of the questions involved no costs to either party will be allowed.


author: O’Brien, J.

text:
    David M. Koehler, Pl’ff, v. Henry Hughes et al., Def’ts.

      (Supreme Court, Special Term, New York County,

      Filed June 20, 1893.)

    1. Taxes—Right of equitable mortgagee of undivided interest to
    REDEEM.
    A person holding an equitable mortgage upon an undivided interest in real estate cannot pay the taxes assessed against the whole property, without a request from the co-tenant of the remaining interest or any compulsion to make such payment, and become subrogated so as to obtain, as against such co-tenant, to the extent of the money so paid, a lien against the land which can be enforced by a sale.
    3. Same.
    Under §§ 847 and 942 of the consolidation act he may pay the proportion of the taxes or redeem from the sale for the proportion of the taxes justly assessable to his share, and the amount thus paid can be added to the mortgage and recovered on a foreclosure thereof.
    Action to subrogate plaintiff, who had redeemed land from a tax sale, to the rights of a lienor upon the land, and to compel payment by a sale of the land.

      David McClure and Charles Goldzier, for pl’ff; Lewis Johnston and Edward W. S. Johnston, for def’t.
   O’Brien, J.

This action was brought by plaintiff, who holds a deed given as security for a loan made to one claiming to be a tenant in common of a parcel of land, and it is alleged that plaintiff was compelled to redeem the land from a tax sale, to be subrogated to the- rights of a lienor upon the land, and to compel payment of the money thus expended by a sale of the land.

The plaintiff claims to have established by competent proof that his grantor, Henry Hughes, was, as alleged in the complaint, seized and possessed of one undivided eighth share, title and interest in and to the premises. The deed from Henry Hughes to plaintiff is dated December 10, 1889, and is in form a bargain and sale deed, the consideration mentioned being t,he sum of $1,000. The proof shows that this deed was given as security for a loan to Henry Hughes. It is alleged in the complaint that the first payment of taxes was made on September 11, 1889, and as the plaintiff’s interest in the property is not claimed to have existed until the date of the deed to him, which was December 10th, this would be fatal to the plaintiff’s right to recover for such payment, were it not shown by the proof that this date of September 11th is a mistake, and was intended for December. 11th, as shown by the check given in payment and the payment itself.

It thus appears that, subsequent to the receipt of the deed by plaintiff, with a view to protect his interest- in the property, he paid the taxes which were assessed against it, and it is to recover the amounts thus paid, by having the same charged upon the land and the whole property sold to satisfy the same, that this action is brought.

Upon the proof made there are many insuperable objections to according any such relief, one of which only it will be necessary to mention. Whether, in view of the judgment in the court of common pleas, plaintiff’s grantor, at the time of making the ■deed, had a one-eighth or any interest in the property is exceedingly doubtful. But, assuming that this judgment is not conclusive upon the plaintiff, and that he had such interest, the question then is, whether a person holding an equitable mortgage upon one-eighth of the property could pay the taxes assessed against the whole property and become subrogated so as to obtain, to the extent of the money so paid for taxes, a lien against the land which ■could be enforced by a sale.

It is not even intimated that this payment was made at the request of the defendant, Joseph Hughes, who was the owner of at least seven-eighths of the property. Yet, under the authorities, it ■would be necessary for the plaintiff to prove that he was no volunteer in the payment of these taxes, and that he paid them under such circumstances as would entitle him to be subrogated lo the rights of the purchaser of these tax certificates.

“ Money voluntarily paid out by one person for another cannot be recovered back. To maintain an action to recover moneys paid out and expended, it is essential to prove a request on part of the person benefited either expressly or fairly to be implied from the circumstances.” City of Albany v. McNamara, 117 N. Y., 168; 27 St. Rep., 166.

" One who is a volunteer may not invoke the aid of subrogation, as lie can establish no equity. To entitle him to its benefits he must have paid upon request or as surety to protect his own rights.” Acer v. Hotchkiss, 97 N. Y., 395.

“ No person can make himself a creditor of another by voluntarily discharging a duty which belongs to that other, and no obligation can be implied in law by the payment of the debt or -obligation of another, without his request, by one who is under no legal liability or compulsion to make it.” First Nat. Bank of Ballston Spa v. Board of Supervisors, 106 N. Y., 488; 11 St. Rep., 150; Brennan v. Chapin, 46 id., 769 ; Preston v. Fitch, id., 588.

From these authorities it will be seen that in the absence of a request by a person to be benefited, a third party cannot make a payment who is under no legal liability or compulsion to make it, and thus make himself a creditor of the person benefited. The plaintiff was under no legal liability.or compulsion, nor was he requested by Joseph Hughes to make the payment.

The suggestion that because the plaintiff, by his deed, had beeóme a mortgagee in equity of the whole land, and therefore could not take advantage of the provisions of the consolidation act by paying so much of the tax as would be a fair and proportionate1 amount according to the interest claimed, is without force. Section 847 of the consolidation act provides for the payment of undivided parts of taxes in cases where a sum of money in gross has-been taxed upon premises, by which any person or persons claiming either a divided or an undivided part thereof will be permitted to pay that proportion which, by the comptroller, shall be1 deemed just and equitable, leaving the interest which has thus, paid its proportion free from any further claim. So where the-property has been sold, § 942 provides the means of redeeming any portion of the land sold within the time limited for redemption. What plaintiff could and should have done was to-pay the proportion of the taxes or redeem from the sale for the proportion of taxes which was justly assessable against his share; and the amount thus paid, .under the authorities, he could have added to the mortgage, and upon foreclosure and sale of the undivided interest upon which lie had his mortgage lien he could have been reimbursed. I cannot find, however, any authority, nor, in the face of the provisions of the consolidation act which were intended to meet just such a case as is here presented, any reason which would justify the plaintiff’s theory that, by paying the taxes upon the entire property, he thereby had a lien thereon which could be enforced by a sale of such property-without his either proving a request on the part of the other co-tenants or showing that he was under a legal liability or compulsion to-make such payment.

It will thus be seen that, irrespective of the question whether the plaintiff’s grantor had or had not any interest in the property, plaintiff could not subject to a lien and sale the interest of the-other co-tenants. Regarding, therefore, the question of title as immaterial, I have refused findings, in favor of or against the respective contentions on. this point; my conclusion-being that as against the defendant, Joseph Hughes, the plaintiff was a mere volunteer, and that there should be a judgment dismissing the complaint, with costs.


author: McAdam, J.

text:
    Morris Levy, Pl’ff, v. Samuel Brothers et al, Def’ts.

      (New York Superior Court, Special Term,

      Filed June 6, 1893.)

    Easements—Ancient lights—Right op adjoining owner to darken windows.
    While an owner of property may place windows in the walls of his . house though they overlook his neighbor’s land; the latter has a right, if he chooses to do so, to build to the extreme end of his land and thus shut off the offending windows, irrespective of the motive with which it is done, or whether the erection consists of poles with sheet iron plates or of solid! brick.
    Motion to continue injunction pendente lite.

      Abraham Levy, for motion; Epstein Brothers, for Samuel Brothers; Goodhart & Phillips, for defendant Lewis.
   McAdam, J.

The plaintiff is the owner in fee simple of the premises No. 47, 49 and 51 Pike street, in the city of New York, with the six-story building thereon, extending back eighty-six •feet in depth. The defendants are the owners of the property immediately in the rear of that belonging to the plaintiff. The windows of the plaintiff’s building look over into the premises of the defendants and invade their privacy. The defendants, to avoid this, commenced to erect upon the extreme rear of their lots large poles upon which it was designed to place sheet iron plates, all for the express purpose of shutting off the light from the offending windows. The bill of complaint was filed by the plaintiff to restrain the acts as being maliciously done, and upon the ground of irreparable injury to his property, and the present is a motion to continue the temporary injunction. The decision ■of the question involves the legal rights of the adjoining owners, which will now be considered. The English rule in regard to ancient lights has been repudiated in this state and generally throughout the country. See cases collated in Knabe v. Levelle, N. Y. L. J., January 14th, 1893.

Under the rule prevailing here an owner of property may place windows in the walls of his house, though they overlook his neighbor’s land. This is his right. The neighbor has some rights also, for he may, if he chooses to do so, build to the extreme end -of his land, and in that way shut off the offending windows. Indeed, he may build for the express purpose of shutting them •off, and whether the erection consists of poles with sheet-iron plates, or of solid brick, is all the same, and the motive of no consequence whatever, for where an act is legal, - the motive with which it is done is wholly immaterial. Nullis videtur dolo facere qui suo jure utitur. The acts complained of are not, within a legal sense, the use by the defendants of their property to the injury of another, for no one, legally speaking, is injured or damnified unless some legal right of his has been infringed. Mahan v. Brown, 13 Wend., 261; Parker v. Foote, 19 id., 309; Palmer v. Wetmore, 2 Sandf., 316; Myers v. Gemmel, 10 Barb., 537; Shell v. Kemmerer, 13 Phila., 502 ; Shipman v. Beers, 2 Abb. N. C., 435; 2 Washburn on Real Prop., 5th ed., 361, 365 ; Gerard on Titles, 3d. ed., 763; Doyle v. Lord, 64 N. Y., 432. Goddard in his work on Easements (Banks’ ed., 1871) says: “The erection of a wall or other obstacle is indeed the only remedy available to a land owner, if he is annoyed by the opening of windows overlooking his grounds; he can maintain no action, nor can he obtain relief at law or in equity, for disturbance of privacy is not an injury which the law will recognize.” This brief summary finds support in the authorities, cited by the author, and in the case above collated, and accord with the views of other eminent writers upon the subject of easements of that character. It will not do for a man to build to the extreme end of his lot, and then complain because his rear neighbor in exercising the same privilege has cut off the light, air or prospect he formerly enjoyed. He should not rely upon the generosity of his neighbor, and must depend upon himself, by reserving space enough on his own land for all his requirements, light, air and vision included. These elements form valuable easements to be acquired only by grant or prescription, neither feature forming any part of this controversy.

The rule is certainly an equitable one, and in harmony with the principle that a man may do what he pleases with his own, so long as he does not infringe upon some right or title of another. See cases on all the above propositions collated in 28 Am. Dccis., at p. 464.

It follows that the motion to continue the injunction must be-denied and the temporary writ dissolved, with ten dollars costs.


author: McAdam, J.-—In

text:
    In the Matter of the Application of Caroline A. Day, for writ of habeas corpus against Oswald G. Day.

      (New York Superior Court, Special Term,

      Filed June 19, 1893.)

    Parent and child—Right of father to custody of children.
    In the absence of proof that the father has been guilty of abuse, or that the welfare of the child requires a change, the courts will not interfere to-take the custody of the child from the father.
    Habeas corpus to obtain the custody of a child of the parties.

      Louis J. Grant, for petitioner; Poor & Puffy, for resp’t.
   McAdam, J.-—In

In Paine v. Paine, 4 Humphrey, 533, the presiding judge said: “ Among the multiplied duties of a court, there are none the discharge of which is attended with more pain and regret than those which interfere with 'the domestic relations of husband and wife, parent and child. These relations are of so-sacred a character, and involve to so great an extent the peace and happiness of mankind in general, that it cannot be otherwise than a source of deep mortification to a well regulated and humane mind to be compelled publicly to investigate and determine conflicting rights arising out of feuds between them.”' Courts may redress wrongs and enforce rights, but should never interfere with matrimonial broils further than required by imperative necessity. This gets us down to the question whether, in this instance, any wrong has been done to the petitioner which calls for judicial interference. The father has possession of his child, and the mother asks that it be taken from him and given to her. At common law the father was master of the household. It was his duty to support his wife, maintain and educate his offspring, and to discharge these duties he possessed the paramount right to the custody and control of his minor children, except in case of gross breach of duty.

The common law rule was subsequently modified by the court of chancery, which, at an early day, assumed a jurisdiction over the persons and estates of infants, making the claims of justice and the interests of the infant override all claims of parental authority. 17 Am. & Eng. Ency. of Law, 365. Lawson, in his work on Rights and Remedies, vol. 2, end of p. 1477, laj^s down the rule that, whenever the father already has the custody, the court will not take it from him, unless he be guilty of abuse, or the welfare of the child requires a change.

Mo charge has been made against the father, he seems devoted to the child, and it has also the care and attention of his mother and. sisters, who are willing to attend to its every want. Under these circumstances, it is impossible for the court to decide that the welfare of the child requires that it should be taken from the father and given to the mother. It could not receive better care in any hands, and it is safe to let “ well enough alone.”

The court has purposely abstained from making any allusions to the charges against the mother, in the hope that the parties may forget the past and come together again.

It is clear that the child is not illegally restrained or deprived of its liberty, and that there is no good or sufficient ground upon which the court is called upon to interfere.

The writ will, therefore, be dismissed, without costs, and upon condition that the mother be permitted to see the child at times to be stated in the order; and with leave to renew on the termination of the divorce suit now pending.


text:
    Anna Forman, Pl’ff, v. Frank Willis Forman, Def’t.

      (New York Superior Court, Special Term,

      Filed June 25, 1893.)

    Bivokce—Lunacy.
    An action to annual a marriage on the ground that the defendant is a lunatic cannot be maintained unless it appear that such cause existed at the time of the marriage; a subsequent affliction furnishes no ground for divorce.
    Bill filed for nullity of marriage contract.

      Robert Goeller, for pl’ff; Wm. H. Clark, for def’t.
   McAdam, J.

In order to maintain an action to annul a marriage on the ground • that the defendant was a lunatic, it must appear that such cause existed at the time of the marriage. Code, § 1743.

The law proceeds upon the ground that the party was, in fact, incapable of making such a contract for want of the proper understanding necessary to yield an intelligent assent to the obligation. The defendant seems to have had sufficient mental ability to comprehend the obligation and its function, for his wife cohabited with and had two children by him. Misfortune overtook him, and he is now confined in an asylum for the insane. The subsequent affliction furnishes no ground for divorce. The parties took each other for better or worse, to care for the other in sickness as well as health, and must perform this vow until death discharges the obligation. While the prospects of the wife are blighted by the misfortune, she must bear it with fortitude. A suit to annul a marriage is to rescind it as if the contract had never been entered into, and the aggrieved party must elect to rescind within a reasonable time after the grievance has been discovered. If, however, the party mentally sound continues to cohabit with the alleged lunatic and has children by him, it proves one of two things: 1st. That the party was not insane at the time. 2d. Or, that the other party has elected to treat the contract as a valid and subsisting one. Either ground forms a complete answer to the application.

In Ward v. Dulaney, 23 Miss., 410, it was observed: “ What •degree of mental imbecility, what extent of intellectual aberration will suffice to annul a contract of marriage, it is difficult to pronounce ; certainly, mere weakness of intellect, or even great eccentricity of conduct, unless it reaches a point that evinces inability to comprehend the subject matter of the contract, will not suffice; .and every principle of sound policy and humanity admonishes us that a contract so important in its soc.ial relations, and bearing so materially on the peace and happiness of families, should not be •set aside upon slight grounds, or on less proof than would suffice to annul contracts less sacred and important in their nature.” Suppose the defendant should recover (a thing possible), and, on seeking his home, found his wife living with another man to whom she had. contracted a new marriage under the license of the divorce •court. 'What a commentary that would be on justice! The defendant’s present condition almost Jirecludes a trial; for a being in his state of mind can make no defense whatever. The policy ■of the law is to protect the weak and helpless, and for that reason courts exercise a zealous care over their interests.

The court sympathizes with the plaintiff, but can furnish her no relief. Application for decree denied.