text:
    Patrick F. Fitzgerald, App’lt, v. William J. Moran et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Contract—Specifications.
    Plaintiff contracted to do the plastering work on a mason’s contract, according to the specifications of a contract between the owner and principal contractor. One specification provided that the walls were to be plastered with King’s cement, under the direction of the superintendent of K. &Co., and another that the cement and sand should be mixed in equal parts. In an action to foreclose a mechanic's lien after plaintiff was discharged for not complying with the contract, Held, that the specifications were not inconsistent, and that the superintendent was not authorized to alter the ingredients or proportions of the plaster.
    Appeal from judgment in favor of defendants, entered on the decision of the court, without a jury.
    Action to foreclose a mechanic’s lien.

      Magner & Hughes, for applt; Thomas E. Pearsall, for resp’ts.
   Cullen, J.

—This is an appeal from a judgment in favor of the defendant entered on the decision of the court without a jury.

The action is to foreclose a mechanic’s lien. The plaintiff, a sub-contractor, agreed to do the plasterer’s work of the mason’s • contract. During the progress of the work a dispute arose between the parties as to the character of the work, and plaintiff’s contract was terminated.

The answer averred that the plaintiff failed to comply with the terms of the contract. There is no dispute as to the contract between the parties. It was to do the work according to the written specifications of the contract between the owner and the principal contractor.

The first question arises as to the interpretation of the contract. One specification provided that all walls were to be plastered with King’s cement under the direction of a superintendent of King & Company. Another specification provided that the cement and sand should be mixed in equal parts. It is claimed that the first specification controlled, and that the assent of King’s superintendent authorized the plaintiff to use a less proportion of cement in the mixture than that mentioned in the specification. The cardinal rule in the interpretation of contracts is to give effect to every part of them if practicable. There is no necessary inconsistency between the two specifications ; full effect can be given to each. The plastering, that is the laying -of plaster on the walls, was to-be subject to the direction of the superintendent, but the ingredients of the plaster and proportions were to be those provided for in the contract. It cannot be supposed that these were to be subject to modification at will by the superintendent, because on the proportions of the ingredients of the plaster .the cost and value of the work largely depended. The ruling of the trial' court in this respect was, therefore, correct.

We are asked to reverse the decision of the trial court on the facts. While it is our duty to examine and pass upon the question of fact, unless there is a decided preponderance of^proof to-the contrary we should respect the decision of the trial court which had the advantage of the oral examination of the witnesses. We think the evidence clearly shows that in many important respects-the plastering was not done according to the contract, and that the; variations were so great and continuous as to affect the whole character of the work. It may be that the plastering was a good job. It may have been unnecessary to have removed as much of the plastering as was actually removed, if the owner was content simply to have a good article of plaster. But clearly it was not what the owner had stipulated for or what the plaintiff had agreed to furnish and for which he was to receive a liberal price.

. The defendants were, therefore, only exercising their legal, rights in rejecting the work.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    The People ex rel. Patrick Duffy v. John Ennis, Commissioner.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Municipal cobpobations—Firemen—Removal.
    The relator after being served with charges which minutely specified, the dates of his absences without leave and the duration of such absences, failed to appear for trial. His foreman, who was authorized to grant leave of absence and who made the charges, testified that they were true-after they had been read to him. Meld, that as the facts were presumably within his knowledge, his testimony was, in the absence of explanation by way of cross-examination, proof sufficient for the action and adjudication of the commissioner.
    Certiorari to review the action of the defendant in removing relator from his position as a member of the fire department of the city of Brooklyn.
    Dailey, Bell & Crane, for relator; A. F. Jenks, for resp’t.
   Barnard, P. J.

—The relator was a member of the fire department in Brooklyn, and could only be dismissed by the defendant, commissioner, after a public trial by the head of the department,, and after being found guilty of misconduct or neglect of duty or incapacity. Chap. 583, Laws of 1888.

There were two sets of charges and specifications against the relator, stating that he was absent without leave from his official duty. The charges in one case showing such absence to have-been for twenty-six hours and a quarter on March 7th and 8th,. 1892, and the other set showing an absence of nearly seven days. The charges were served on relator March 9, 1892, with a notice-to appear for trial on March 11, 1892. He did not appear, and. Thomas Cleary, the foreman of Engine Ho. 16, to which relator was-attached, was sworn as a witness. He had made the charges and served them personally on relator. He was the officer authorized to grant leave of absence. The charges state minutely the dates of the relator’s absence from duty without leave. Hpon the trial he testified he was the foreman of Engine Ho. 16, and that the charges were true after they were read over to him by the commissioner. This would have been good evidence in a court of law under the severest of rules calling for common law proof. The absence, the absence without leave, the dates of such absence and the length, of time during which the absences continued, are all contained in the charges. The facts were presumably within the knowledge of the witness, and his direct testimony to the truth thereof was, in the absence of explanation by way of cross examining proof sufficient for the action and adjudication of the commissioner.

The proceedings should be affirmed, with fifty dollars costs.

Dykman and Cullen, JJ., concur.


text:
    Andrew Cosgriff et al., App’lts, v. Wilson P. Foss et al., App’lts, and William Dewey, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Partition—Improvements—Lessee subsequently purchasing interest IN THE LAND.
    Defendant Dewey took a three year lease of certain premises for a stone quarry, and thereafter purchased an undivided interest in the land. He extended the quarry, and deepened the access to the same from the river, and made docks. The other parties to this action purchased the remaining undivided interests. In an action for partition brought before the expiration of the lease, Held, that Dewey was not entitled to compensation for the improvements made by him; that as between himself and his co-tenants on that question he was simply a lessee, and under the lease his only right was to take oil such things as were provided for by the lease and during its existence.
    Appeal from judgment of special term in an action for partition.
    The appeal is taken from so much of the judgment as awards. ' to the defendant Dewey compensation for improvements made by Mm.

      Irving Brown, for pl’ffs, app’lts; Garrett Snider, for def’ts, app’lts; A. S. Tompkins, for resp’t.
   Barnard, P. J.

—Catherine Blauvelt in March, 1889, was the owner of a piece of mountain land in Rockland county, on the west shore of the Hudson river, being one of the pieces described in the complaint The tract consists of about ninety-six acres. There was then a stone quarry opened on the north end of the-. land along the Hudson river. The owner in March, 1889, gave a three years lease of the property for a stone quarry to William Dewey. The owner reserved her right to cut the wood on the land, and to lease to other persons any part of the premises which could be used without injury to the said business of defendant. In August, 1890, Dewey purchased seven-sixteenths of the land. In August, 1890, the plaintiff, Cosgriff, and the defendants, Conklin and Foss, bought the remaining nine-sixteenths of the land. Dewey, while in possession as tenant, extended the quarry at considerable expense, and deepened the access to the same from the river, and made docks to facilitate the working of the quarry and 'the delivery of the product therefrom. The referee has allowed for the expense of adding to the quarry, and also for the river access. The court confirmed the report as to the quarry, but disallowed the same as to the expense upon the river front and in the river. The lease provided for neither. The tenant had at least a restricted right as tenant, but he had the first right to purchase at a price which any other person would give for the same. The tenant had the right to remove at any time during the lease “ any machinery or buildings which he may erect or place on said premises.” Foss and Conklin own the lease to Dewey. As between Mrs. Blauveltand Dewey, Dewey could make no claim against the landlord. The improvements were made as a new source of profit and during the existence of the lease for years. Dewey bought subject to. his own lease to Blauvelt and so did his co-tenants in common; and Dewey attorned to them after they purchased. The lease expired in March, 1892, over a year after this action was commenced. The case should be decided without reference to the tenancy in common, but solely as between landlord and tenant. The lessee had the right to open quarries on the demised property for his own profit. He did so, and at the end of the lease he could take away his appliances and buildings. The case clearly resembles Scott v. Guernsey, 48 N. Y., 106. In that case certain devisees of a remainder, during the existence of a life estate, made improvements and they were held not entitled to recover. The case of a mere tenant making the improvements under a lease would be much stronger against his right to compensation. The case of Ford v. Knapp, 102 N. Y., 135; 1 St. Rep., 362, does not change this rule. An old mill was owned by two persons. The interest of one was sold by execution. The other owner did what “ was material and normal to the use and character of the property, and such as joint owners of equal ability might be expected to join in making.” Pending the time of the sale and of the period of redemption a peculiar equity was thus presented which does not exist in this case. Here the improvements were made upon a bare hillside and solely for the profitable return to a tenant for years. If we are right in this conclusion it is not necessary to consider the question of the docks and improvements erected below high water mark. The trial judge disallowed them, and we think that Dewey can re-’ cover for no improvements on the main land, because they were made for himself. He had the right to purchase and did not do so. The only right under the lease as between himself and co-tenants was to take off such things as were provided for by the lease and during its existence.

The judgment should be modified so that the allowance for improvements be stricken out and the judgment otherwise affirmed, with costs to appellant out of the proceeds of the sale.

Dykman, J., concurs; Cullen, J., not sitting.


author: Dykman, J.

text:
    Hugh J. Keenan, Resp’t, v. Paul Gantert, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Parties—Amendment on trial.
    On the trial of the action it appeared that the plaintiff had assigned his-claim to one 0., and the court on consent of counsel directed 0. to be made a party plaintiff. Held, that defendant by his ^assent to the amendment waived any irregularity, if any there was.
    Appeal from judgment in favor of plaintiff.

      Morrison & Langdon, for app’lt; J. Herbert Watson, for resp’t.
   Dykman, J.

—It was the object of this action to charge certain real property in the city of Brooklyn with a vendor’s lien, but the question chiefly litigated upon the trial had reference to the amount "due from the defendant to the plaintiff.

The testimony was quite contradictory upon that subject, and the judge has found the amount upon evidence entirely sufficient to sustain his finding.

The appellant has no expectation of reversing the judgment-upon the facts, but he insists that fatal errors were committed upon the trial. o

The action was commenced in the name of Hugh J. Keenan, but it transpired upon the trial that before he brought the suit he had assigned the claim to Hans S. Christian, and thereupon the trial judge, upon what he deemed to be sufficient consent of all the counsel, directed Christian to be made a party plaintiff with Keenan.

That direction is now assigned as error by the defendant upon which he seeks a reversal of the judgment.

The difficulty with the defendant is that he assented to the-stipulation that Christian should be joined as a party plaintiff, and his assent is recited in the judgment. He thus waived all irregularity if any there was, and is concluded by the stipulation.

Moreover, the amendment was for the benefit of the defendant,,, and he cannot be affected injuriously by it in any way.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs; Cullen, J., not sitting.


text:
    Harriet T. Stanly et al., Pl’ffs, v. John W. Freckleton, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Foreclosure—Advertisement.
    Where there is no personal representative of a deceased mortgagor a. foreclosure sale by advertisement which in other respects is conducted in. accordance with the st itute is valid; the requirement of chap. 346, Laws 1844, as to service on the personal representative cannot he complied with, and a purchaser at such sale acquires a valid title.
    Submission of controversy without action.

      A. Edward Woodruff, for pl’ffs; Charles F. Moody, for def’t.
   Barnard, P. J.

—The title to the property in question was in Samuel B. Wilmott. In April, 1855, Wilmott executed a mortgage thereon to Lawrence Seaman, Jr. The mortgage contained the power of sale. Isaac Willetts purchased the mortgage in March, • 1869. In April, 1869, Willetts commenced a foreclosure by advertisement under the Revised Statutes, 2 R. S., 545, as amended by chap. 346, Laws of 1844. Wilmott died in 1861, leaving a will and devising his lands to his executor to sell and distribute among the children of testator’s brother. One of the executors only qualified and he died in 1862, and no administrator with the will annexed was ever appointed. Wilmott left one child only, a son ■of full age. By the amendment of 1844, in case of death of mortgagor the notice of sale was required to be served on the personal representatives. The sale of the mortgaged lands was made without the service of such notice and the plaintiff’s predecessor in title obtained a deed in July, 1869, under the sale. 'The plaintiff and Bis grantors have been in possession claiming title since that time. The defendant agreed to buy the same and the question is whether the title is a merchantable one. There are two general term decisions bearing upon the question.

Anderson v. Austin, 34 Barb., 319, holds that where there was no executor or administrator the foreclosure was.good if conducted in the mode otherwise prescribed by statute. The point was directly involved, for the judge (Emott) held at circuit that the rights of all parties were cut off.

King v. Duntz, 11 Barb., 191, and Cole v. Moffitt, 20 id., 18, seem to support this view of the statute. The case of Bond v. Finn, 51 Hun, 507; 21 St. Rep., 682, upholds the same view. Notice of salé in this case was served on certain persons other than the personal representative of a deceased mortgagor and the sale was held good as to this person. The statute as to foreclosure by advertisement was fully observed and it was not the fault of the mortgagee if those interested in the estate did not have personal representatives appointed to succeed the deceased executor. Tbe judgment should therefore be that the defendant takes the title.

Dykman, J., concurs; Cullen, J., not sitting.


text:
    Margaret Ball, by Guardian, Resp’t, v. Jeremiah Harrigan, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. False imprisonment.
    As plaintiff, with other girls, were running by defendant’s premises one of them stumbled over a beer barrel. Defendant arrested and detained plaintiff in a police box until police wagon came and then had her taken to the station and charged her with kicking the barrels over. The evidence showed that this was done by some boys. Reid, that plaintiff was entitled to recover damages for such false imprisonment.

      2. Same—Damages.
    In such, case a verdict of $450 is not excessive.
    Appeal from judgment in favor of plaintiff, entered upon a verdict for $450.
    Action for false imprisonment.
    . Ellis & Harrigan, for app’lt; R. E. & A. J. Prime & Burns, for resp’t.
   Barnard, P. J.

—The proof entirely failed to show any justification for the arrest of the plaintiff. The defendant had some empty beer barrels in the street at night and the plaintiff, with two other girls, passed by. They were running, and one of the barrels was so placed as to cause one of the girls, not the plaintiff, to stumble over it. The defendant came out and arrested her and subjected her to great indignity ; she was made to go into a police box and wait for the police wagon, and when it came she was compelled to get in the same and go to a police station. The defendant accompanied her and made complaint that she kicked over his barrels, but stated that he did not see her do it. All the others deny that they kicked over the barrels, and a witness, Brenner, testified that some boys had knocked down the kegs and that the girls came along and ran over the barrels afterwards. No •crime was proven against the plaintiff and none was committed by her. The defendant had no right to arrest her without a warrant. Code Crim. Pro., § 183.

No objection can be taken to the rule of damages. Taking this testimony as you have it and all the circumstances, what should be paid to this girl for what she has suffered by being deprived of her liberty?” There is no question raised as to vindictive damages. Humiliation, insult, wounded sensibilities, are all subjects of compensation, not as vindictive damages, which depend on malice. The compensation given is little .enough as actual damages if the jury said so.

Judgment affirmed, with costs.

Cullen, J., concurs; Dykman, J., not sitting.


text:
    James M. Stevens, Resp’t, v. John K. Van Ness, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Vendor and purchaser—Failure to convey.
    Plaintiff contracted to purchase certain land of defendant and paid all but $25. On tender of the balance defendant claimed to have a title, but refused to_ show it, to receive the money or give a deed, or to return the money paid. The record showed an incumbrance on the property, and no title in defendant, but on the trial he showed an unrecorded title and an unrecorded satisfaction of the incumbrance. Held, that plaintiff was entitled to recover the money paid by him.
    Appeal from judgment in favor of plaintiff.
    Action to recover money paid upon a contract for the purchase of certain real estate.

      W. H. Schooley, for app’lt; W. J. Powers, for resp’t.
   Barnard, P. J.

—The plaintiff entered into an agreement with the defendant, whereby the defendant agreed to sell to the plaintiff a .piece of land for $600. He paid the defendant $575 thereon, and he avers in this action that he was induced to enter into the agreement by the false statements made by defendant to him, that he, the defendant, had a good title to convey, and that the same was free and clear of incumbrance. The proof established the contract and the payment of the money thereon and the refusal by the defendant to deliver the deed. The record showed no title in the defendant, and that it was incumbered by mortgage. The defendant refused to show any title in himself when the conveyance was demanded. Upon the trial he did show an unrecorded title and unrecorded satisfaction piece for the mortgage. The case then turned upon the intent with which the defendant-made the agreement with the plaintiff and took his money. It was proven that he was asked to fulfill; that he said he had a title-hut would not show it; he refused to receive the $25 or to give a deed. He refused to pay the $575 back to plaintiff. The jury have found that the defendant meant to get the plaintiff’s money and give nothing back, and the evidence sustains the verdict. The facts cannot be explained upon the assumption that the defendant had a title and intended to give it.

Judgment affirmed, with costs.

Dykman, J., concurs; Cullen, J., not sitting.


author: Barnard, P. J. Cullen, J.

text:
    The City of Poughkeepsie, Pl’ff, v. William L. Quintard, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Municipal cobpobations—Poughkeepsie—Renewal bonds.
    The city of Poughkeepsie is not precluded by the provisions of its charter from issuing bonds under chap. 525, Laws 1889, in exchange for, or to raise money to pay maturing water bonds, as in neither case is a new debt or obligation created.
    (Cullen, ,T., dissents).
    Submission of controversy without action.
    The question involved is the power of plaintiff to issue bonds,, the proceeds of which are to be applied to the payment of water bonds maturing this year.

      C. B. Herrick, for pl’ff; Clark & Sedgwick, for def’t.
   Barnard, P. J.

—The right to exchange a new bond of the city for an old one maturing is given plainly by chap. 526, Laws of 1889, and the laws amended thereby. Tim act of 1889 went farther than the preceding acts, in that legislative permission was-given to sell new bonds under very guarded conditions, and to pay the old ones with the proceeds of the new. Neither the direct exchange*or the issue of the new bonds constitutes a creation of a liability under the city charter. Neither creates a new debt or obligation. As to the exchange, it is very plain that a substitution of one bond for another created no new liability. The application of money derived from a new bond to the payment of the old is the same thing in the spirit of the act permitting cities to meet maturing loans by an exchange or sale of new bonds.

Judgment for plaintiff upon submitted case, with costs.

Dykman, J., concurs.

Cullen, J.

(dissenting)—This is a controversy without action submitted under the Code. The sole question involved is the power of the plaintiff to issue bonds, the proceeds of which are to be applied to the payment of water bonds maturing this year.

Chapter 75, Laws of 1878, as amended by Laws of 1878, chap. 317; Laws of 1884, chap. 244; Laws of 1887, chap. 282, and Laws of 1889, chap. 526, authorize any village, city, town or county, whenever any of its bonds mature, or in anticipation thereof, to issue and sell new bonds at a rate of interest not exceeding six per cent, and also less than the rate of the bonds becoming due, to retire such bonds.

The contingency on which the plaintiff has assumed to issue the bonds in controversy is exactly the one contemplated by this statute, and it is not denied that the plaintiff would have the necessary power to issue the bonds except for the restricted provisions of the city charter.

The charter provision on this subject now stands (Laws of 1883, chap. 523) as follows :

“ Section 125. The common council shall not have power to borrow, and is hereby expressly prohibited from borrowing, any money on account of the city, except as herein provided. The said council shall not create any pecuniary obligations whatever on the part of the city which shall not be payable in the current year, and which cannot be discharged from the income of the -same year.”

This provision has been in the charter substantially in the same form since the incorporation of a city in 1854. The object for which the maturing bonds were originally issued was not authorized by the charter or its amendments. It was by a special act (Chap. 333, Laws 1867) that the city was empowered to acquire a water supply and to issue bonds therefor. But by the act of 1883 the water supply was brought under the charter provisions and under the charter restrictions. It is to be observed that while power is given by this act to the water commissioners constituted thereby to acquire on behalf of the city lands and water, the authority to create debt therefor given by the original act is omitted. At the same time the debt thitherto contracted on this account is incorporated into the general debt of the city, because by § 223 the five per cent on the amount of water stock levied annually as a tax is to be placed in the public debt fund. Therefore, after the amended charter of 1883, the water debt stood on the same footing and was subject to the same provisions of law as the other debts of the city.

The question then arises whether the act of 1878 shall prevail over the charter provision governing the city of Poughkeepsie. Admitting that the amendments to that act subsequent to 1883 make it the later statute on the subject, still the rule is that a general act will not be construed to repeal or amend a prior special act unless such intention is manifest. Matter of The Evergreens, 47 N. Y., 216; Matter of Central Park, 50 id., 497; Buffalo Cemetery v. Buffalo, 118 id., 61; 27 St. Rep., 749.

It is contended, however, on behalf of the plaintiff, that the provision of the charter cited is no more than a statutory expression of the general rule of law that municipal corporations-cannot borrow money without authority.

We think the language used is too broad and comprehensive to be thus limited. But this is not the only charter provision on the subject. By § 93 it is made the duty of a common council to levy annually a tax sufficient to meet any instalments of public debt maturing. It was thus not only directed that no debt should be incurred except as provided for in the charter, but also-that all debt should be paid as it matured. To construe the act of 1878 as authorizing the plaintiff to issue these bonds would obliterate both these charter provisions. This we think the well settled rules of statutory construction will not permit. It was the-duty of the common council to raise the amount necessary to pay the maturing bonds by tax.

We think that the bonds are not authorized by law, and there should be judgment for the defendant on submitted case, with costs.

Judgment for plaintiff, with costs.


author: Cullen, J.

text:
    The New Rochelle Water Works Co., Resp’t, v. Edward F. Brush et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Eminent domain—Water companies—Petition.
    A failure to state in a petition to condemn lands by a water company that the water to be supplied under the contract made by it with the village was “for the extinguishment of fires and for sanitary and other public purposes,” is cured by proof upon the trial and a finding of a contract in the express terms of the statute.

      2. Same.
    Where the proceeding is to acquire land and the riparian rights of am owner .whose remaining property will thereby be severed from such, riparian rights, it is not necessary to describe in the petition the whole-property which may be injuriously affected by the severance, but only that sought to be acquired.
    Appeal from judgment of special term condemning lands of the appellants, and appointing commissioners of appraisal.

      Isaac N. Mills, for app’lts; M. J. Keogh, for resp’t.
   Cullen, J.

—This is an appeal from a judgment of the special-term condemning lands of the appellant and appointing commissioners of appraisal. The plaintiff, a water company organized under the statute and having a contract with the village of ¡New Rochelle, sought to acquire the lands for the purpose of a reservoir.

The objections taken to the proceeding by the appellants relate to the sufficiency of the petition.

The first defect pointed out in the petition is its failure to state the residences of persons holding liens on the lands sought to be acquired, the residence of the owners alone being given. To obviate this defect an order was made by the court amending the petition by stating such residences. Ample power for this amendment is given by § 3368, which makes all the provisions of title 1, chapter 8 of the Code applicable to these proceedings. It may be that the petition as amended should have been verified anew, but no such objection Was taken.

The second objection is that the petition merely alleged that the plaintiff had made a contract to supply the village with pure and wholesome water, without stating that the water was to be supplied “for the extinguishment of fires and for sanitary and other public purposes.” This defect (if defect it was) was cured by the proof adduced on the trial, and the finding by the court of a contract in the express terms of the statute. This course was authorized by the section already cited.

The last objection relates to the sufficiency of the description of the property to be condemned. So far as such description relates to lands sought to be acquired in fee, no criticism can be made. Those lands are described with great accuracy. The question arises by the insertion in the petition of the desire to acquire certain easements, which are in many respects stated with great indefiniteness and uncertainty. The land taken from the appellants is the bed of the stream and a strip of upland adjacent thereto. The petition seeks to acquire the fee of the river and the waters thereof “ and the right to intercept and divert the flow of the water of the said river from the lands of said riparian owners, and the right to prevent the flow or drainage of noxious or impure matters from the lands of said riparian owners into plaintiff’s reservoirs or sources of supply, .and also the riparian rights in and to Hutchinson’s river.”

The appellants’ tract is a portion of a large farm which adjoins the river. Their only right to the stream arises from the ownership of its bed and the adjacent upland. The ownership of this piece sought to be taken from them may be of great advantage to the remainder of the farm, and the severance of the strip may depreciate the value of such remainder. For this the appellants will be entitled to compensation, but it is not necessary to describe in the petition the whole property which may be injuriously affected by the severance, but only that sought to be acquired.

With the acquisition of this strip the “ riparian rights ” of the owner will cease. But if the plaintiff seeks to acquire anything more than such rights as would enure to it by law from the ownership of the land and stream, such rights must necessarily be appurtenant to other lands. In that case the other lands to which the easement is supposed to be appurtenant must be described. We assume, however, that such is not the intent of the plaintiff, but the appellants’ rights in the rest of the farm should not be jeopardized by the broad language of the petition. The condemnation should be limited to the lands described in the petition and the waters of the river.

The order appealed from should be modified as indicated, and as modified affirmed, without costs to either party.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Margaret S. Ives, App’lt, v. Gustave Ranger et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Jury—Struck, will only be ordered in extraordinary cases.
    Where a case involves only private interests and assumes no public im" portance, and there is no fear of inability to obtain a fair and impartial jury, the court will not order a struck jury merely because on the trial of a similar action the jury disagreed. Such a jury will only be ordered in an extraordinary case.
    Appeal from order of special term for a special jury for the trial of this action.

      Charles F. Mac Lean, for app’lt; Hoadley, Lauterbach & Johnson, for resp’ts Ranger et al., Emmett & Robinson, for resp’t New York Life Ins. & T. Co.
   Dykman, J.

—This is an appeal from an order made at the special term for a special jury for the trial of this action, and the justification of the order requires us to determine from the papers presented that a fair and impartial trial cannot be had without such a jury, and that the importance and intricacy of the case requires it.

The action is ejectment for the recovery of two parcels of real property in the town of Greenburgh, and the plaintiff is a granddaughter of Francis W. Lasak, who died seized and possessed of the premises.

The plaintiff claims to recover by descent as one of the heirs of Lasak, and proceeds upon the theory of his intestacy.

The defendants, on the contrary, claim that Lasak left a last will and testament which disposed of this property to the exclusion of the plaintiff.

There has been a trial of another action of ejectment brought by a daughter of Lasak, which proceeded upon the same lines with this, and the jury failed to agree upon a verdict.

The case is no more important than any other action involving the testamentary disposition of property.

In such actions the capacity of the testator and his subjection to undue influences are brought in question to be determined by the jury, and that is the only method we have for the decision of those questions.

It is to be noted here that only private interests are involved, and the case assumes no public importance.

The case has excited no public interest, there is no fear manifested of any inability to obtain a fair and impartial jury, and no claim of any unfairness or partiality upon the former trial.

It may be mentioned that we have now in Westchester county a commissioner of jurors under a new law of the last legislative session, and a new method of making and revising the jury list, which is an improvement upon the former system.

The beaten way of judicial procedure is provided for the administration of justice, and experience demonstrates the propriety of continuance therein. Extraordinary and unusual proceedings involve the employment of new machinery and new methods, and thus raise and present new questions, and continue litigation.

Moreover, the teaching of experience is in favor of the jury summoned in the ordinary manner. The most important questions involving life, liberty and property are constantly submitted to the ordinary jury with satisfactory results, and it requires an extraordinary case to justify the issuance of an order for a special jury._

If it is to be assumed that a special jury is to be composed of extraordinary members, it is quite doubtful whether such men will be as likely to agree and produce results as satisfactory as the jury of conservative men such as are ordinarily found upon juries.

We find nothing in the circumstances of this case which requires a departure from the ordinary mode of procedure, and we think the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Barnard, P. J., and Cullen, J., concur.


author: Ransom, S.

text:
    In the Matter of the Estate of Hezron A. Johnson, Deceased.

      (Surrogate’s Court, New York County,

      Filed June 16, 1892.)

    Collateral inheritance tax—Time of vesting of estates.
    Testator, after making a will giving his property to his wife and issue, executed a deed of trust by which he transferred his property in trust for the support and maintenance of himself and family and on his death to distribute it according to the provisions of the will. Held, that the lega-, tees took by virtue of the will and not the deed, and that the law in force at the death of testator should govern, and such death having taken place subsequent to the passage of the act of 1891, the interests of the wife and children were taxable.
    Motion for reargument.
    The report of the appraiser was overruled by the surrogate in the following opinion:
    Ransom, S.—The appraiser has reported that the property to which the wife and children of testator became entitled vested at the time of the execution and delivery of the deed, and passed by such deed and not by his will; that the time of such vesting being before the act of 1891, the deed is not affected thereby, and, consequently, their interests are not subject to the payment of the tax imposed by the amendment of 1891. It is very plain that no interest vested in these legatees by virtue of the deed. Townshend v. Frommer, 125 N. Y., 446; 36 St. Rep., 133. Whatever interest they received from the decedent they became entitled to bv virtue of the provisions of the will, and they are unaffected by the deed except so far as by it the grantor reserved to himself the right to dispose of his estate by will. The interests of the wife and children are subject to the amendment of 1891. The matter will be remitted to the appraiser to report anew in accordance with these views.

      Miller, Peckham & Dixon, for ex'rx; Edgar J. Levey, for comptroller.
   Ransom, S.

—The testator, by his will, executed May 13, 1882, and a codicil executed May 22, 1889, gave his property in certain proportions to his wife and issue. On November 29, 1889, he executed a deed of trust, by which he transferred the bulk of his property, real and personal, to a trustee in trust to invest the same and apply the income therefrom to the support and maintenance of the grantor and his family, and upon the death of the grantor to distribute and pay over the property and its proceeds to and among the heirs or representatives of the grantor in accordance with the provisions of his will. The testator died in September, 1891, subsequent to the passage of the act by which the law was amended so as to subject to taxation the personal estate of decedents bequeathed to wife or children, where the beneficial interest exceeds $10,000.

The appraiser reported that the legatees were exempt, holding that they took by virtue of the deed a vested interest in the estate. The surrogate, in a decision appearing at page 200 (April 26, 1892), overruled the appraiser, and held that the legatees took by virtue of the will; consequently, their interests were taxable. The executrix now moves for' a reargument, basing her motion upon the decision of the court of appeals in Genet v. Hunt, 113 N. Y., 158; 22 St. Rep., 774. That case was brought for the construction of the will of Caroline M. Riggs, who, in anticipation of marriage, executed a trust deed, by which she conveyed all her estate, real and persona], to trustees to receive the income and apply the same to her use during coverture, and upon the further trust, if she should die during coverture, to convey the same to such devisee or devisees, in such share or proportion, as she by her last will and testament may direct; and in default of any such direction to convey the same unto such persons living at her death, and being her heirs at law, as would be entitled to take the same by descent in case the same was land belonging to her in the state of New York. Testatrix died during coverture, having executed a will by which she directed that said estate be set apart into two equal shares for the benefit of her children. She directed her executors and trustees to take charge of the property, to manage the same, and to apply the income to the support, maintenance and education of said two children during minority, and upon their respectively attaining twenty-one years of age to pay over to each child after so attaining that age the net income of one-half said estate during their respective lives; and after their deaths respectively the respective shares of said estate set apart as above directed shall go to and belong to their heirs at law and next of kin respectively, in the same manner as though they were respectively absolute owners of the same. In case of the death- of either of said ■children before attaining majority and without issue, the share set apart for the benefit of the one so dying to be applied to the use of the survivor. If issue, then the issue to receive the same. In case of the death of both children without issue, before attaining majority, then upon the death of the longest liver the property was given, after the payment of certain legacies, in equal shares to her brothers and sisters and their issue. The question presented was whether the trusts created were valid. If 'the testatrix was the absolute owner of the property at her death, then the trusts were valid, for the absolute ownership was to vest at the furthest within the lives of the two children. The court held that the validity of the trusts was to be determined by the test whether it would be valid if it had been part of the limitation in the trust deed and had been inserted therein at the time the deed was executed ; that for the purpose of determining this question the deed and the will must be read and construed together, and inasmuch as when so read they provided for a possible suspension of the power of alienation for three lives they were invalid. An additional reason was that the two children upon whose lives the trusts in the will are limited were not in being when the trust deed was executed and could not have taken such an estate as was.limited under the will if it had been limited in the same manner in the trust deed.

It was absolutely necessary that the will should be executed and admitted to probate for the purpose of giving effect to the power reserved in the deed. 4 Revised Statutes, part 2, chapter 1, article 3, § 115. Without the will the legatees named therein would not have taken the same interest While the two instruments are construed together for the purpose of determining the disposition made thereby, and for other purposes, it is a fiction of law which is only resorted to for equitable purposes and its application is not unlimited. As is said by Lord Sugden : “ Where a person takes by execution of a power, whether of realty or personalty, it is taken under the authority of that power, but not from the time of the creation of that power. The meaning that the persons must take under the power, or as if their names had been inserted in the power, is that they shall take in the same manner as if the power and instrument executing the power had been incorporated in one instrument; then they shall take as if all that was in the instrument executing had been expressed in that giving the power. So it is in the appointment of uses. If a feoffment is executed to such uses as he shall appoint by will, when the will is made, it is clear that the appointee, cestui que use, is in by the feoffment, but has nothing from the time of the execution of the feoffment so as to vest the estate in him. The estate will vest in him according to the nature of the act done and appointment of the use from the time of the testator’s death. This, therefore, is not a relation so as to make things vest from the time of the power, but according to the time of the act executing that power; not like the referring back in cases of assignment in commission of bankruptcy, that is, by force of the statute, and to avoid mesne wrongful acts,” citing the decision of Lord Hardwicke in the Duke of Marlborough v. Lord Godolphin, 2 Ves., Sr., 61; 2 Sugden on Powers, 23.

The doctrine thus stated is approved in this state in Jackson v. Davenport, 20 Johns., 536-550; the chancellor saying: “This doctrine, that a deed executing a power refers back to the instrument creating the power, so that the party is deemed to take under the deed from the grantor by whom the power was created,- and not from the power, is, a fiction of law, and so it was considered in Bartlet v. Ramsden, 1 Keb., 570, relatio est fictio juris, according to the resolution in Menvil's Case, 13 Co., and is upheld to advance a right, not to advance a wrong, or to defeat collateral acts which are lawful, and especially if they concern strangers.”

In Seibert's Appeal, 110 Pa. St., 329, testator, by his will, bequeathed his property to' certain collateral relatives, and for religious and charitable purposes; subsequently he transferred all his property, by deed duly acknowledged, to the persons named as executors in his will, they to receive the income of the same to their own proper use during the life of the testator, and at his death to hold the same for the uses and purposes set forth in said will. The court said: '> “ The intent of the testator is to be deduced from the language of his will. An examination thereof clearly leads to the conclusion that its main purpose was to prevent his property from liability to a collateral inheritance tax. The property which he sought to transfer was not to take effect in enjoyment until after his death. This clearly • subjects the property to a collateral inheritance tax under § 1 of the act of 1826. The deed executed by the testator on the 14th of August, 1882, did not change the time of enjoyment previously designated in his will. It expressly declared the vendees shall hold the property in trust for the uses and purposes set forth in said will.” Citing Reisch v. Commonwealth, 10 Out., 521; S. C., 106 Pa., 521.

It will be seen that the Pennsylvania courts, in the cases cited above, while recognizing the fiction of law that the deed granting the power and the will executed thereunder are to be construed as one instrument, hold that the instrument is to,be regarded as a deed to take effect in enjoyment upon the decedent’s death. The statute of this state corresponds in its language to the Pennsylvania act, and should receive a similar construction. The law when the deed goes into effect, viz.: the death of the testator or donee of the power, should govern, not the law at the time the deed was executed.

In New York Life Ins. & Trust Co. v. Livingston, 44 St. Rep., 102, Judge Andrews, writing the opinion of the court of appeals, says: “ The testator owned the property embraced in the trust prior and up to the time the deed was executed. He reserved therein a beneficial interest during his life and a power of appointment by will. This was little less than ownership, and the statute, for the purpose of construing a disposition by will under á power of appointment, treats the subject of the power as the property of the donor of the power, and, conclusively, infers an intention in a testator to execute a power where the will disposes of all his property, and the inference is not rebutted except by express language or necessary implication.”

The language of the Revised Statutes, 1 Rev. Stat., 737, § 126, is not entirely without significance: “Lands embraced in a power to devise shall pass by a will purporting to convey all the real property of the testator unless the intent that the will shall not operate as an execution of the power shall appear expressly or by necessary implication.”

Some test of the logic of the position of the executrix may be gained by suggesting, could it be successfully claimed that, for the purpose of charging interest or penalty upon a bequest given in a will which was executed under a power contained in a deed, that the legacy would relate back to the execution of the deed, and that, therefore, the tax accrued at the date of the delivery of the deed, and at that time interest began to run ?

Motion for reargument denied.


author: McAdam, J.

text:
    The People ex rel. Walter Jones, v. The New York Homœopathic Medical College & Hospital.

      (New York Superior Court, Special Term,

      Filed June 27, 1892.)

    Mandamus—Will not lie to compel issue op diploma by medical college.
    A mandamus will not lie to compel a medical college to issue a diploma to a student. In passing on the qualifications of the student as to granting a diploma the faculty of the college act as a quasi judicial body, exercising an ample discretion which cannot be reversed by mandamus.

    Application for mandamus to compel the dean and faculty of the above college, and the board of trustees thereof, to deliver to the relator the diploma of said college as a graduate thereof.

      Nelson G. Green, for relator; Roger H. Lyon, for resp’t.
   McAdam, J.

—The relator became a student in the (defendant) college, which maintains a seat of learning in the city of New York, under the authority of a special charter from the state.

The college neither expressly nor impliedly agrees to issue diplomas to its students, nor to confer upon them the right to practice medicine, unless the student has first satisfactorily passed certain preliminary studies, and his qualifications have been approved by the faculty and censors of the college, and unless he has been recommended by them to the board of trustees for graduation. The relator claims that he performed all of the duties required of him and passed all of his examinations, and that he is entitled to his diploma under the rules governing the college. These rules, in the nature of things, leave it to certain medical experts to determine whether the examination of the applicant has been satisfactorily passed or not, and these gentlemen have decided adversely to the claim of the relator, his qualifications have not been approved by the faculty and censors of the college, and they have therefore declined to recommend him to the trustees for graduation, and the college has, in consequence, refused' to grant him the privilege of practicing medicine. This seems to be a complete answer to the application.

Mandamus will not issue in cases of doubtful right. The legal right of the party to that which he demands in the writ must be clearly established. Peo. ex rel. Sherwood v. Bd. Canvassers, 129 N. Y., 360; 41 St. Rep, 912; People v. The Supervisors, 11 N. Y., 563; People v. Canal Board, 13 Barb., 444; 8 Pet., 291; 11 How., U. S., 272.

The practice of medicine is one in which a person cannot engage unless authorized to do so by a license or diploma from some chai’tered school, etc. Penal Code, § 356; Laws 1874, chap. 436. The purpose of these acts was to protect the public from medical practitioners not possessing the qualifications required in their delicate calling to discharge the duties thereof. Certifying to such qualifications is a responsible duty, cast by the law upon colleges, and it must be performed conscientiously in the interest of the public. The case is unlike The People v. Perry, 13 Barb., 206, where an application was made to compel the mayor of Albany to issue a license to the relator to carry on the vocation of booking emigrant passengers, and in which the writ was issued because the only discretion lodged with the mayor was whether the bond offered was satisfactory, and this had been passed upon in favor of the relator.

The court, while illustrating the question before it in that case, said : “ The statute relating to excise, and the regulation of taverns, etc., besides requiring, as in this case, a bond satisfactory to the commissioners, declares that a license shall not be granted unless the commissioners are satisfied that the applicant is of good moral character; that he is of sufficient ability to keep a tavern; that he has the necessary accommodations to entertain travelers, and that a tavern is absolutely necessary for the actual accommodation of travelers at the place where the applicant resides, or proposes to keep the place. 1 R. S., 679, § 6. Under this statute no man can claim a tavern license as a matter of right until all these questions have been determined in his favor.” See, also, Ex parte Persons, 1 Hill, 655, and People v. Com’rs, 7 Abb. Pr., 34. Courts may be versatile, but they must be careful not to infringe upon the discretion vested in excise boards, colleges or inferior tribunals, nor to substitute its discretion for theirs. The determination by these bodies of any questions within the scope of their jurisdiction is, as it should be, as conclusive and free from control upon mandamus as that exercised by the highest jurisdictions in the country.

The People v. Medical Society, 32 N. Y., 187, was a case in which a licensed physician was held to be elegible to membership because he had a “diploma,” the only qualification required.

That case has no application whatever to the question involved here.

In the present instance, the (defendant) college in passing on ' the qualifications of the relator acted as a quasi-judicial body, exercising an ample discretion vested in it by the act under which it was incorporated, and its determination cannot be reversed upon mandamus.

Stated in general terms, the principle is that mandamus will lie to compel the performance of duties purely ministerial in their nature, and so clear and specific that no element of discretion is left in their performance, but as to all acts or duties necessarily calling for the exercise of jxidgment and discretion on the part of the •officer "or body at whose bands 'their performance is required, mandamus will not lie. High, in his work on Extraordinary Legal Bern., p. 26, says: “ And whenever such officers or bodies are vested with discretionary power as to the performance of .any duty required at their hands, or where, in reaching a given result of official action, they are necessarily obliged to use some degree of judgment and discretion, while mandamus will lie to' set them in motion, and to compel action upon the matters jin controversy, it will in no manner interfere with the exercise of ■such discretion, nor control or dictate the judgment or decision which shall he reached

The relator charges, bad faith and ill will upon the part of some of the officials of the college, but these allegations do not .alter the underlying fundamental principle which controls. The ■court cannot re-examine the relator as to his qualifications to practice medicine, nor go over the studies in which he is said to be deficient. If it attempted to do so, the relator's road would be easy, for, with his experience, imperfect though it may be, he would no doubt pass a better medical examination than any court could be expected to give him. The law wisely intended no such result. It leaves the subject where it belongs; with those qualified to master it.

The application for the writ must be denied, with ten dollars •costs.


text:
    Mary G. Sigel, Pl’ff, v. Rudolph F. Sigel, Def’t.

      (New York Superior Court, Equity Term,

      Filed June 22, 1892.)

    Divorce—Confessions.
    Where the confessions of adultery are free from taint of collusion, confirmed by circumstances and the conduct of the accused, the evidence is sufficient to justify a decree of divorce, especially where the defendant refuses to testify in his own behalf.
    Bill to dissolve a marriage on the ground of adultery. The .•answer admits the marriage but denies the charge made.

      C. J. Kracht, for pl’ff; R. N. Waite, for def’t.
   McAdam, J.

—The suit was plainly adverse in its character and seriously resisted, circumstances which repeal all idea of collusion, Vance v. Vance, 8 Greenl., 132; Baker v. Baker, 13 Cal., 87, and still the defendant’s counsel insists that the confessions of adultery made by the defendant are insufficient to warrant a decree dissolving the marriage. Courts have, in many cases, refused to grant ■divorces on such evidence upon the ground that it was practically a divorce by consent; that it opened the door to collusion between the parties and imposition on the court. While such evidence is to be viewed with suspicion and acted upon with caution, it will not ■do to assume that all defendants are liars and frauds, particularly where there is no motive at the time to be otherwise than truthful. Where the confessions are perfectly free from taint of" collusion, ■confirmed by circumstances and the conduct of the accused, the •evidence is sufficient. Shelford on M. & D., 411. The true rule may be gathered from the following cases:

In Lyon v. Lyon, 62 Barb., 142, it is said: “The foundation of the rule which forbids the granting a decree of divorce on the unsupported confession of a party is the fear of collusion and imposition on the court. When, however, the reason of the rule fails, the rule itself ceases. Hence, when the confessions are made under circumstances which entirely preclude suspicion of collusion or imposition, the confession will be received and a decree-granted thereon without other evidence.”

In Billings v. Billings, 11 Pick., 461, there was no other evidence but a letter written by the husband, who had been living for fourteen years in another state, to his wife, which stated that he had lived with another woman, by whom he had children, but expressing penitence and a desire to be reconciled to his wife. The court held that the circumstances repelled collusion, and granted the decree on the confession of the letter alone.

In Madge v. Madge, 42 Hun, 524; 4 St. Rep., 609, the court (general term, first department), per Davis, P. J., said: “ In actions for divorce on the ground of adultery, the confessions of the defendant are always admissible in evidence, but, to avoid the danger of collusion, the court, before granting the decree, will require such corroboration of the confessions as to remove all just suspicions of collusion. When that is satisfactorily done the confessions become a sufficient basis for a judgment of divorce. In this case the competency of the confessions is undoubted. The circumstances under which they were made tended strongly to remove all suspicion of collusion. * * * There is in the case before us undoubted proof that the confessions were made, that they were clear and distinct, and that they were sincere and not collusive.”

In Matchin v. Matchin, 6 Penn., 332, the court, per Gibson, C. J., said: “ It is a rule of policy, however, not to found a sentence of divorce on confession alone. Yet, where it is full, confidential, reluctant, free from suspicion of collusion and corroborated by circumstances, it is ranked with the safest proof.”

The admissions were made at various times to different individuals, and under circumstances which leave no doubt of their truth. They are confirmed by acts, and, all combined, carry conviction to the judicial mind.

, Evidence that induces belief and carries conviction must control. No other can.

Since the amendment to § 831 of the Code, a husband or wife, charged with adultery, is a competent witness to disprove the allegation. The court called the defendant to the stand, and referring to the charges made against him, offered to permit him to avail himself of the privilege of denying the accusations or offering any explanation concerning them he chose to make. He declined to avail himself of the privilege, and thus the court was deprived of all benefit which his testimony might have afforded.

It was not a criminal proceeding, but a civil action, and the Code amendment merely removed a prohibition formerly existing, which the legislature, in furtherance of justice, did not deem it wise to continue. In criminal prosecutions, the fact that the prisoner does not avail himself of the law allowing him to testify •on his own behalf is not to militate against him. Indeed, the Code of Criminal Procedure (§ 393), expressly provides that “ the prisoner’s neglect or refusal to testify does not create any presumption against him.” There is no such qualifying clause in the provision applicable to actions for divorce, Code of Civ. Pro., § 831, and there is no logical reason why a defendant’s refusal to vindicate himself against a charge, in reference to which he is peculiarly qualified to speak, should not have its proper weight. Taylor on Ev., § 737; Smith v. Gunn, 35 St. Rep., 429; Gibson, v. Park Bank, 98 N. Y., 95.

Of course all these things must be carefully watched and guarded to detect and prevent collusion or simulated conduct on the part of suitors, but where it is clear that the proceeding is hostile, the •admissions true, the conduct of the parties real, it seems proper to give that weight to the testimony offered which would be given to it in other civil actions. There is little trouble discriminating between admissions made to permit a divorce and those made with no such sinister object in view. Words are sometimes powerful things, and admissions against interest have always been regarded as a species of evidence on which courts may safely rely and act. Greenl. on Ev., § 169. Such evidence .must be accepted and accorded whatever weight its inherent probability, •as confirmed by the circumstances, requires. As was said in Baker v. Baker, 13 Cal., at p. 94: “The public can have no interest in suppressing the truth; and, as a means of its ascertainment, the confessions of parties against their interests have always been regarded as evidence of the most important character.” The law must protect the innocent and punish the guilty, and where the proof makes out a case which satisfies the conscience, and •carries conviction to the legal mind, it would be monstrous for the court to hold that, while the evidence sufficiently proves the fact alleged to its satisfaction, it must find the other way. If the trial had been before a jury, the court could not have withheld the question of the defendant’s guilt from them; and if, after such submission, the jury had, on the same evidence, found for the plaintiff, a court would hesitate long before setting their verdict aside. In this case the court must determine the facts as a jury would have done, and its finding thereon is equally conclusive. There being no collusion, there is no question of public policy concerned other than that which enters into every divorce case. The charge has been proved, and it is the plain duty of the court to redress the wrong in the manner pointed out by law. The plaintiff is entitled to the usual decree in such cases, with a permanent continuation of the alimony awarded.


author: McAdam, J. McAdam, J.

text:
    James Talcott, Pl'ff, v. Morris Levy et al., Def’ts.

      (New York Superior Court, Equity Term,

      Filed July 11, 1892.)

    Fraudulent conveyances—Deed prom husband to wipe.
    Defendant Levy, in 1888, while doing a prosperous business, executed a deed of real estate to his wife, but being informed that a deed from hus* band to wife directly was void did not have it recorded. Subsequently, when embarrassed and having reason to expect insolvency, he conveyed the-same property through a third person to his wife, no consideration passing. Meld, that while the first deed would have been valid against subsequent creditors if recorded at the time of its delivery, yet it having been kept from record and the defendant having continued the owner of Record to the presumed injury of creditors, the subsequent deeds, although made in confirmation of the former one, must be held fraudulent as to creditors.
    Bill filed to set aside transfers as fraudulent against judgment, creditors.
    Carter, Pinney & Kellogg, for pl’ff; Ira Leo Bamberger, for def’ts.
   McAdam, J.

—The bill was filed by a judgment creditor to set aside- as fraudulent two deeds of premises No. 170 East Ninety-fifth street, in the city of New York, one made by the judgment debtor to Mahlke Charmack, July 9,1888, and the other made by Charmack to Rebecca Levy, the wife of the judgment debtor,. July 10, 1888.

The conveyances were subject to a $10,000 mortgage, and the-property was worth about $14,000. The transfers were made without consideration, and for the purpose of putting the title in Rebecca Levy, Charmack acting as a mere conduit.

The conveyances, if they rested upon these facts, would have to be set aside, but the explanation offered requires serious-thought before- reaching that conclusion. It appears that the-judgment debtor, on February 17,1888, while doing a prosperous business, and before the debt was contracted for which judgment, went against him, execuied and delivered a deed of the realty in question to his wife Rebecca, intending to make a gift of the property to her. The deed was not.put upon record, because the defendant was advised that a deed executed from a husband direct-to his wife was void, and following this advice the two deeds in question were subsequently executed and recorded in confirmation of what bad been done before. This feature requires us to review the entire transaction, and to construe the three deeds as links in one chain, that the strength of all may be tested together. Separate ownership by the wife is now possible, and she may take the legal title to personal property (even a transfer of the purchaser’s interest in a contract for the sale of land) by gift direct from her husband. Fruhauf v. Bendheim, 127 N. Y., 590; 40 St. Rep., 185; Kelly v. Campbell, 2 Abb. Ct. App. Dec., 492. A husband honestly indebted to his wife may give to her a chattel mortgage to secure the debt, although he is at the time of executing it unable to pay all his debts in full. Spaulding v. Keyes, 125 N. Y., 113; 34 St. Rep., 588. As to real estate the rule is somewhat different. Thus, in White v. Wager, 25 N. Y., 328, it was held that a deed executed by a wife to her husband was ineffectual to pass title. ,To-the same effect is Winans v. Peebles, 32 N. Y., 423, in which case it was held that the deed might, however, be established in equity where a consideration had been paid. In Hunt v. Johnson, 44 N. Y., 27, the conveyance was by the husband to the wife, and the court, referring to White v. Wager, supra, said: “ That case differs from the present action in this, that it was a conveyance by the wife to the husband; this was by the husband to the wife. They do not necessarily stand on the same basis in equity. It is the duty of the husband to provide an assured and comfortable support for his wife during his life, and after his death. Ho duty rests upon the wife to provide for the husband. * * * An application of the husband’s property for her comfort is eminently equitable, and has been favored by the courts from their earliest existence.”

In Dean v. Met. El. R. R. Co., 119 N. Y., 540; 30 St. Rep., 81, it was held that prior to, the passage of the act of 1887, ch. 537, a deed of lands from husband to wife, or from wife to husband, was void, and did not operate to divest the grantor of title unless, founded upon valuable or meritorious consideration, such as would enable a court" of equity to sustain it.' This case, like White v. Wager, supra, was, in the language of the court in Hunt v. Johnson, 44 N. Y., at p. 35, “ well decided upon its facts, and that without trenching upon the well-settled powers of the court to afford equitable relief in a proper case, and when presented by the parties entitled to ask for it.” Winans v. Peebles, supra, was decided upon the ground that the deed from the wife to the husband “ being wholly without consideration, a court of equity would not interfere to sustain it.”

The deed executed by the judgment debtor to his wife Rebecca, on February 17, 1888, being after the act of 1887, ch. 537, expressly authorizing such transfers, was good both at law and in equity, and being founded on love, affection and the obligation to-support bis wife and family, might have been held valid as. against all but existing creditors if it had been placed on- record at the time of its delivery to her, and if the grantee, in her answer, had pleaded its execution and delivery. See, also, Laws of 1892, chap. 594, authorizing a married woman to enter into-any compact with her husband, which act is supposed to destroy the last remnant of marital disability to contract.

Bump, in his work on Fraudulent Conveyances, at p. 82, says “A deed, not at first fraudulent, may become so by being" concealed, because by its concealment persons may be induced to give credit to the. grantor. In such a case the use that is made of it relates back and shows the intent with which it was made. The omission to place a deed on record, or leaving it in the hands of the grantor, or placing it in the hands of a third person, to be produced or suppressed accordingly as exigencies may demand, are instances of secrecy under the rule ” (citing cases).

It will not do to leave title apparently in one, while it is, in fact, in another. This is out of the ordinary course of business, unnecessary, and directly tends to the injury of those not in the secret. Conveyances to the wife, kept off record, cannot be sustained where the grantor yet continues in possession without any apparent change of ownership. In such case the fraud consists in the design to obtain credit by means of continued possession and .apparent ownership, after attempting to place the legal title of his property beyond the reach of creditors. Savage v. Murphy, 34 N. Y., 508, aff’g 8 Bosw., 75; Case v. Phelps, 39 N.Y., 164. Such secret transfers have a direct tendency to induce persons to credit the apparent owner on the faith of his continued ownership, and where they are made without any new consideration, they should mot, in justice to creditors, be upheld to their prejudice. As was .said by the court of appeals, in Neuberger v. Keim, 45 St. Rep., 396: “ The rule we regard as well stated by Mr. Justice Brewer in the case of Schreyer v. Scott, 134 U. S., 411. ‘It is evident that the rule obtaining in New York, as well as recognized by this court, is, that even a voluntary conveyance from husband to wife is good as against subsequent creditors, unless it was made with intent to defraud such subsequent creditors, or there was secrecy in ■the transaction by which, knoioledge of it was withheld from such creditors, who dealt with the grantor upon the faith of his owning the property transferred, or the transfer was made with the view to entering into some new and hazardous business, the risk of which the grantor intended should be cast upon the parties having dealings with him in a new business.’ See, also, Todd v. Nelson, 109 N. Y., 316, 327; 15 St. Rep., 270.”

It is not contended that the failure to record a deed is conclu.sive evidence of fraud, but that unexplained it is a suspicious and strong circumstance tending to prove fraudulent intent. 15 Week. Dig., 153; 22 id., 430. The difficulty with the explanation offered here is that it strikes at the integrity and validity of the deed itself. The grantor was advised and believed that the transfer, because made to the wife, was illegal, hence, in contemplation of law, no conveyance at all. He acted on the belief that the deed was inoperative, and permitted his name to continue as the owner “ of record ” to the presumed injury of creditors, until the two deeds complained of were executed, when it for some reason occurred to him that recording was a prudent or necessary safeguard.

' Steele v. Coon, 27 Neb., 586, presented a somewhat similar question to that which arises here. In that case land had been conveyed by a husband to his wife, through a third party, the deeds being dated March 27, 1883, but not recorded. These deeds having been lost or mislaid, as the defendant alleged, new deeds were executed on October 13, 1884, and at once recorded. The husband’s liability - to the plaintiff was upon a note executed August 22, 1884, and maturing October 22d of the same year. The defendant expressly claimed that the first deed was not kept from the records with any intent to defraud the creditors of the grantor. Upon this point the court said: “Neither of, the conveyances can be upheld as a voluntary conveyance; the second, for the obvious reason that at this date the grantor, Archibald F. Coon, has already incurred the obligations upon and for which the several judgments of the plaintiffs were afterward rendered against him; and the first conveyance, for the reason that the deed was in law concealed and not pursued, not being placed upon record, in the due and ordinary course of business in like transactions, nor until after the incurring of the obligations by the grantor which are now sought to be enforced against the farm; indeed never was recorded.” The question again came up in Hilliard v. Cagle, 46 Miss., 309. There it appeared that a debtor who believed himself solvent executed a deed of trust of his plantation, stock, store house and merchandise on December 19, 1886, to secure a ninety day note for $40,000. The deed was not recorded until January 30th of the next year, 1887. The evidence as to the reason for this delay was conflicting, and did not convince the court that the arrangement was made with a fraudulent scheme and purpose to defeat-existing or future creditors.

It was held, however, that in ascertaining the motive the court must look through the conduct, and from it make the deductions, and inferences. A man must be conclusively taken to intend the natural and logical results of his acts. They say: “ The natural and logical effect of knowledge by the public of the existence of the deed would be to destroy his credit and stop his business, except for liquidation. * * * The concealment of the deed, on the other hand, would enable him to prosecute his business. He could buy merchandise on credit, keep his warehouse full, and deal largely in cotton. He might be able to pass through the active business season with'unshaken credit, and come out successful. * * * To come to this result it is not necessary to hold the deed itself to be fraudulent in its inception ; for, as was declared, in 1692, by Lord Commissioner Hutchins, in Hungerford v. Earle, 2 Vern., 261, 'a deed not at first void may become so by being concealed or not pursued, by which creditors are drawn in to lose their money.” * * * We are of opinion that the natural and logical effect of the agreement and assignment, and the conduct of the parties thereto, was to mislead and deceive the public, and induce credit to be given to Baggett (the grantor) which he could not have obtained if the truth had been known, and therefore the whole scheme was fraudulent as to subsequent creditors, as much so as if it had been contrived with that motive and for that object.”

In Scrivenor v. Scrivenor, 7 B. Mon., 374, a son executed a deed to his father as security in 1834, when the grantor was a trader, purchasing hogs on credit, borrowing money and inducing others to become his security. It was not recorded until seven years-later, when he had become greatly indebted, and was probably insolvent. Held, that it was void. The court says: “ It is, moreover, conclusively shown that notwithstanding the execution of the deed, and until some time after these suits were brought, in 1841, the grantor remained in possession of the land, using and apparently claiming it as his own, by listing it for taxation and otherwise just as he did before, and that he continued to purchase-on credit and to borrow and become indebted until his credit, founded in part upon the possession and apparent ownership of this land, was entirely lost. The deed has thus evidently been the means of deceiving and defrauding others, and there is some ground to infer that it was originally so intended. At any rate, it has, by being so long kept secret, and finally put upon the record after the grantor had become embarrassed, and without any designation of the real consideration, been made the instrument of fraud against the creditors of the grantor.”

In Hildeburn v. Brown, 17 B. Mon., 779, the court, referring to an unrecorded mortgage, said: “ Such contrivances or acts, though not designed to perpetrate an actual fraud upon other persons, have an inevitable tendency that way, and are obviously opposed to the general policy of the law requiring the public registration of all liens and incumbrances upon property permitted to be regained and claimed by debtors." See, also, Mead v. Gregg, 12 Barb., 653, at 656; Blennerhassett v. Sherman, 105 U. S., 100; Beecher v. Clark, 12 Blatchf., 256, at p. 268.

The judgment debtor was engaged in a business in which purchases were made on credit, and the failure which occurred was one of the hazards to be reasonably apprehended; and the plaintiff, though a creditor subsequent to the voluntary transfer to the wife, is entitled to complain of it. Young v. Heermans, 66 N. Y., 374; Mead v. Gregg, supra. The conveyances to Charmaclc, .and by him to the wife of the judgment debtor, were made while the latter was embarrassed, and had reason to expect insolvency, Coleman v. Burr, 93 N. Y., 17; they were made without consideration, and to put the property beyond the reach of creditors, and while made in confirmation of the deed previously executed, that being ineffectual as to creditors, the whole scheme fails. Upon the entire case, and particularly on account of the secret unrecorded conveyance, the plaintiff is entitled to a decree declaring the two subsequent deeds fraudulent and void as to him; that plaintiff’s judgment be declared a lien upon the premises conveyed, and that the same be sold under execution to satisfy said judgment. Cole v. Tyler, 65 N. Y., 73; Kennedy v. Barandon, 4 Hun, 642; Union Nat. Bank v. Warner, 12 id., 306; Belgard v. McLaughlin, 9 St. Rep., 38. Submit findings and decree.

Decree in favor of plaintiff.

Subsequently, on July 20, the following opinion was filed:

McAdam, J.

—Mrs. Levy having obtained $4,000 upon the property conveyed to her in fraud of judgment creditors, and the property not being worth more than the $4,000 and the prior liens thereon, the plaintiff is entitled to a personal judgment .against Mrs. Levy, according to the rule declared in Fullerton v. Viall, 42 How. Pr., 294; Swinford v. Rogers, 23 Cal., 233; Jones v. Reeder, 22 Ind., 111; Hubbell v. Currier, 92 Mass., 333; Dilworth v. Curts, 29 Northeastern Rep., 861, and kindred cases. The •court has adapted the findings and decree to the exigencies of the case, Murtha v. Curley, 90 N. Y., 372, and in conformity to the principles decided by the courts in the books cited.


author: Bischoff, J.

text:
    John F. Sherman, Pl’ff, v. Mathilda Sherman, Def’t.

      (New York Common Pleas, Special Term,

      Filed May 9, 1892.)

    Marriage—Annulment—Duress.
    " Duress of the plaintiff occasioned by a third person, but of which the defendant was wholly ignorant at the time of entering into the marriage contract, cannot be used as aground for annulling such marriage.

      Action to annul a marriage on the ground of duress.

      Ira Shafer, for pl’ff; L Albert Englehardt, for def’t.
   Bischoff, J.

—This action was brought to obtain the annulment of the marriage of the parties, on the ground that, at the time of its contraction, plaintiff was deprived of the exercise of "his free will and capacity to consent, by reason of his intoxication and the fear of imprisonment and bodily harm threatened to be inflicted upon him if he should fail to marry the defendant. Specific questions of fact were framed to be tried by a jury, and the trial thereof resulted in favor of the defendant, except as follows: to the question, “ Was the plaintiff on or about the 3d day of June, 1882, threatened with the loss of his life and with imprisonment in the jail in the city of New York if he did not then and there marry the defendant, as alleged in the complaint ? ” the jury responded “Yes,” as they also did to the further question, “Was •a marriage ceremony between plaintiff and defendant performed while the plaintiff was under the fear induced by such threat ? ”

When the cause was reached in equity, for final disposition, defendant’s counsel moved for a new trial, urged in support of the motion alleged errors in the rulings of the judge presiding at the trial of the questions of fact, and plaintiff’s counsel moved for judgment for the relief demanded in the complaint, ■ founding his motion on the verdict and pleadings.

I am of the opinion that both motionscshould be denied. Respecting defendant’s motion, the only exceptions to be considered are those affecting the questions determined adversely to her by the jury, and, observing the form of the questions tried and submitted, the rulings were proper, and the exceptions of the defendant have no validity. As to those questions, it may be further said the verdict is sustained by abundant evidence..

But, to justify the annulment of the marriage, it should appear that plaintiff’s duress was occasioned by the defendant, and that she uttered or instigated the threats of imprisonment or bodily harm, and was cognizant of them; or, at least, that at the time of the marriage ceremony she knew or had reason to believe that plaintiff was impelled to marry her by fear that the threats of imprisonment and bodily harm would be carried into execution if he did not marry her. These facts are denied by the answer and were not included among those determined by the jury in plaintiff’s favor, and duress of the plaintiff occasioned by a third person, but of which defendant was wholly ignorant at the time of entering into the marriage contract, cannot be used as a means of setting that contract aside.

The legal principles governing the authority of the court to annul a marriage on the ground of duress of one of the parties thereto are essentially the same as those applied when the annulment of any other contract is requested upon the like ground, Bishop on Marriage and Divorce, vol. 1, § 210, and to be available as a ground for relief it must appéar that the duress of the party asking to be relieved was occasioned by the other contracting party, or that he knowingly used or availed himself of such duress as a means of procuring the contract sought to be annulled. Wharton on Contracts, vol. 1, § 154; Leake on Contracts, 425. Judgment for defendant.


text:
    The Village of New Rochelle, App’lt, v. Henry S. Clarke, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Villages—Ordinances—Fires in street. .
    The ordinance of the village of Hew Rochelle prohibiting the burning-of combustibles in the streets or lots in the village is intended to forbid fires in the streets at any time but to permit a fire in a lot between sunrise- and sunset.
    Appeal from judgment of the Westchester county court, reversing judgment of justice in favor of plaintiff
    Action for a penalty.

      C. H. Noxon, for app’lt; C. H. & A. J. Young, for resp’t.
   Barnard, P. J.

—The question presented involves only a construction of an ordinance of the plaintiff which is in these words :

“ Section 2. No hay, straw, chips, shavings or other combustible substance, shall be set on fire or burned in any street at any time or in any lot of the village except between the rising and set-sing of the sun, under th^ penalty of ten dollars, by any person directing or causing the same to be done.” The defendant directed a fire to be made in a street of the village. The case does not show whether the fire was made between sunrise and sunset or not. ■ If a fire could be kindled in the street at any time, the justice was wrong and his judgment was properly reversed. The ordinance forbids fires in the street 11 at any time ” but permits a fire in any lot of the village between sunrise and sunset. To make the exception's cover streets and lots, violation would be done to the section by striking out the words as to the streets which forbid fires at any time. If the section be read so as to except fires in lots in the day time, all the words will have a place and meaning. Statutes are to be construed so as to give effect to all the language employed. Matter of N. Y. & Brooklyn Bridge, 72 N. Y., 527.

I think the true meaning of the law is that fires are out of place in the streets of a village at all times, and fires in lots at night are terrifying and dangerous when the people are not awake to meet the danger.

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

Cullen and Dykman, JJ., concur.


text:
    Henry L. Beakes, App’lt, v. The Commercial Union Assurance Co., Limited, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Insurance (Fire)—Lightning—Verdict.
    The policy in question covered direct loss by lightning and excluded loss by cyclone tornado and wind storm. The building insured was destroyed during a rain storm accompanied by lightning, thunder and a hurricane. There was no fire, but there were evidences oí heat and the exertion of great force, and of injury by the wind. The amount claimed was over $2,000, and the jury rendered a verdict for §100. Held, that under these circumstances the amount of damage to "be attributed to the lightning alone was not so certain that an appellate court could decide that the amount allowed therefor by the jury was inadequate.
    Appeal from judgment in favor of plaintiff, entered upon ver•dict, and from order denying plaintiff’s motion to set aside the verdict for inadequacy and for a new trial.

      W. F. O'Neill, for applt; Butler, Stillman & Hubbard, for resp’t.
   Dykman, J.

—This is an action upon a policy of fire insurance, which covered direct loss and damage caused by lightning and excluded loss and damage by cyclone, tornado, and wind storm.

The insurance was upon several buildings, and considerable personal property, and the plaintiff claimed that two barns included in the policy were destroyed by lightning.

The defense was that the barns were destroyed by a tornado.

The proof was that the barns were destroyed during a rain ■storm accompanied by lightning, thunder and a hurricane. There was no ignition and no fire, but there were evidences of the presence of heat, and of the exertion of great force. There were also evidences of injury by the wind for the buildings were prostrated.

The damage was large, and the amount claimed in this action was $2,747.50.

The case went to .the jury upon a charge that the plaintiff could recover for the damage caused by the lightning, but not for the destruction resulting from the force of the wind.

The jury rendered a verdict in favor of the plaintiff for one hundred dollars.

The plaintiff moved for a new trial, and to set aside the verdict for inadequacy, and the motion was denied and he has appealed to the general term for a new trial.

Our difficulty is that we cannot certainly say the verdict is inadequate, because we cannot say how much 'of the plaintiff’s damage resulted from lightning. That question was within the peculiar province of the jury and was left to that body for determination.

The proof of the action of lightning upon the buildings was only inferential, and drawn from the evidence of the appearance ■of the effect of heat around the soldering of the tin sheets which covered the cupolas. Some of the foundation stone were thrown nut of place and their removal from their position was by the plaintiff attributed to the action of electricity.

So the amount of damage which can be attributed to the action of the lightning is not so certain that we can estimate it and decide that the amount allowed for it by the jury was insufficient.

It will be seen that the policy covers only direct loss and damage caused by lightning, and that language is quite restrictive.'

A rain storm in the summer months in this lattitude, accompanied with lightning and thunder, is usually brought up and attended with high wind, and where a current of electricity passes through a building during such a commotion of the elements without causing a fire, and the structure is thrown down af the same time, it is plainly difficult to determine the damage to be attributed to the lightning alone.

In such a state of uncertainty an appellate tribunal would not feel at liberty to interfere with the verdict of a jury which settled .the question.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Cullen, J., concurs; Barnard, P. J., not sitting.


text:
    Charles S. Knapp, Resp’t, v. James S. Gregory et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Chattel moiitqag-e—Evidence.
    In an action "by a mortgagee of chattels to recover damages resulting from the seizure and sale of the chattels under a judgment against the mortgagor, it is incumbent upon him to show that his mortgage is free from fraud, and hence evidence as to the consideration for it is admissible and proper.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for a new trial on the minutes.

      Joseph W. Gott, for app’lts; Thomas Watts, for resp’t.
   Dykman, J.

—This is an appeal from a judgment entered upon a verdict of a jury in favor of the plaintiff and from an order denying a motion for a new trial based upon the minutes of the court.

The basal facts are these: In the month of October, 1890, Calvin B. Gale executed and delivered to the plaintiff and Richard D. Osborn a chattel mortgage upon farm stock and utensils.

■ The defendants, who were creditors of Gale, thereupon obtained judgments against him and issued executions thereon against the property .of Gale to the sheriff of Orange county, who sold the property under such executions.

Thereupon this action and one in favor of Osborn was commenced against the sheriff to recover the damages resulting from such sale, and the defendants were substituted as defendants in the place of the sheriff in the actions.

This action was tried at the circuit in Orange county, and the jury rendered a verdict in favor of the plaintiff for $700.

Like most cases involving a chattel mortgage, the validity of that instrument was the serious question litigated upon the' trial of this action. The counsel for the defendants conducted a searching inquiry into the consideration and the honesty of the mortgage, but there was evidence which the jury might believe sufficient to establish its honesty.

The appellants upon this appeal complain of the rulings of the trial judge, which permitted the plaintiff to prove the consideration for the mortgage, but they were not erroneous, on the contrary, the plaintiff was called upon to show the transactions free from fraud, and the best way to do that was to manifest its honesty.

It is quite true that there were contradictions and inconsistencies in the testimony of the plaintiff, but they all went to the jury with the entire evidence in the case, and we must assume that the truth was extracted.

The charge was so full and fair that- it escaped exception, and the finding of the jury under it cannot be disturbed.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Cullen, J., concurs; Barnard, P. J., not sitting.


text:
    In the Matter of the Application of Alicia Smiddy. In the Matter of the Application of James Grogan et al. In the Matter of the Application of Bridget Mullen et al. In the Matter of the Application of Andrew Chrystie. In the Matter of the Application of Thomas R. Fisher et al. In the Matter of the Application of Robert C. Fisher. In the Matter of the Application of Alicia Smiddy and Ellen Ryan. In the Matter of the Application of Maria Jewell.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)
    Villages—Charge of grade of street—Statutes.
    The special acts of 1888 and 1889 creating a special system of sewerage for the village of New Rochelle, and authorizing the commissioners of drainage to change the grade of its streets, do not repeal the provisions of the general act of 1883 in relation to special damages, and property owners affected by a change of grade made by such commissioners are entitled to proceed under the general act to have their damages ascertained.
    Appeal by the village of Hew Bochelle from order in the above entitled proceedings, appointing commissioners to ascertain the damages sustained by the petitioners by a change of grade of a street in such village.

      W. T. Emmet and John J. Crennan, for app’lt; Martin J. Keogh, for resp’ts.
   Barnard, P. J.

—The village of New Rochelle was incorporated by act of the legislature, chap. 249, Laws of 1864. The village was made a separate road district under the control of the village authorities. By chap. 113, Laws of 1883, all incorporated villages were made liable for damages to real property adjoining any highway occasioned by a change of grade. By chap. 311, Laws of 1888, the legislature created a special system of sewerage for the village, and by chap. 201, Laws of 1889, amended it so that the commissioners of drainage were empowered to change the grade of streets (§ 9) and to make payment of the damages to piivate property occasioned thereby. The village-was directed to issue its bonds to defray the expense of the construction of the sewers and drains and all other expenses, not exceeding $2,750. All other expenses were to be paid by general-tax on the village property. Sec. 23. The act of 1889 does not provide any mode of assessing the damages from change of grade. The papers are silent whether or not any bonds have been issued, and whether or not the amount authorized was sufficient to pay' all costs and expenses. Neither of the two acts in relation to-special damages repeals the general act of 1883, which did provide a method of ascertaining the damage in such cases. The special acts did not either in terms or by implication repeal the general act. By this act alone the petitioner could have her damages assessed.

The village pays under either the general or special act. The special acts do not take away the power of the village over its streets generally. The village is still liable to maintain its streets, and the petitioner has the right to the order asked for, whether the change of grade be made by its trustees or by the commissioners of drainage. These commissioners are but a special department of the municipal government, and the damages are chargeable upon the village chargeable with the maintenance of the street.

The order should therefore be affirmed, with costs and disbursements.

Cullen, J., concurs; Dykman, J., not sitting.


text:
    Albert F. Gescheidt, Ex’r, App’lt, v. John Drier and Frederika Drier, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Gift—Causa mobtis—Delivery must be shows.
    Prior to her death testatrix had promised to give her niece her bank book “when she died.” On the day of her death the niece got the bank book from a wardrobe pointed out by testatrix, but put it back, locked the wardrobe, and placed the keys under testatrix’ pillow, where they remained until her death. Held, that thé proof did not show a delivery by deceased in her life-time with intent to transfer title, and that a gift was not made out. A delivery is equally essential in cases of gifts causamortis and inter vivas.

    Appeal from judgment in favor of defendants entered upon verdict.

      L. C. & W. P. Platt, for app’lt; Wilson Brown, Jr., for resp’ts.
   Barnard, P. J.

—The plaintiff is the executor of Eva Schmidt. She died on the 4th of August, 1890, in Westchester county, and at her death there was a deposit in the East Chester Savings Bank of $1,145, with interest, standing in her name. The defendant, claims a title to the deposit by a gift of the bank book to her in the life-time of testatrix. The plaintiff produced evidence tending to show that the bank book was taken by defendant out^ of Mrs. Schmidt’s wardrobe after testatrix’ death. The testatrix died at the house of a Mrs. Miller, and defendant, who was a niece, nursed her during her last illness. The defendant gave evidence tending to show that the deceased promised to give the book to her “ when she died," and that she spoke of the money as belonging to defendant. The proof fails to show any completed gift before the day of testatrix’ death. On the morning of that day the defendant had “ this bank book; ” she got it from a place pointed out by testatrix, “ and I took it out and put it back in the wardrobe again." The defendant locked the wardrobe after she put it back and put the keys under Mrs. Schmidt’s pillow. The book remained in the wardrobe until after her death. The evidence wholly fails to make out a gift.

There was no proof of a delivery with intent to transfer the title made by the deceased in her life time. The possession of the book by defendant and its replacement in the wardrobe by her" and the return of the keys to the deceased, taken together, fail to show a delivery. The case is not like Bedell v. Carll, 33 N. Y., 581, where a plaintiff who produced a promissory note endorsed by the payee, in the absence of explanatory evidence, was held entitled to judgment. A delivery is equally essential in cases of gifts causa mortis and inter vivas. Curry v. Powers, 70 N. Y., 212.

“ To consummate a gift, whether inter vivas or causa mortis, the property must be actually delivered and the donor must surrender the possession and dominion thereof to the donee.” Ridden v. Thrall, 125 N. Y., 572; 35 St. Rep., 913.

The evidence did not sustain the defense and the verdict of the j ury for defendant should be set aside and a new trial granted, costs to abide event.

Cullen, J., concurs; Dykman, J., not sitting.