text:
    MARY E. MILLER and SARAH GIFFIN, Respondents, v. ABNER S. ADKINS, Appellant.

      Evidence — stipulation that statement ma/y he read as plaintiff’s testimony — If read hy defendant, on trial, after plaintiff’s decease — dffendamt cannot testify to personal transactions with deceased — Oode, § 399.
    In an action of ejectment, a stipulation was made by the plaintiff and defendant, by which a certain statement was agreed to be “a statement of the evidence that the witness Canfield (the plaintiff) would give on the trial, and that the same may be read in evidence on the trial of this action by either party, with the same force and effect as if the said plaintiff and witness were personally present and examined as a witness therein.” Subsequently, Canfield conveyed his interest in the premises to the present plaintiffs, and, upon his death, shortly after, they were substituted in his place. Upon the trial, the defendant read the said statement, and then offered himself as a witness to testify to personal transactions with the deceased.

      Held, that the evidence was properly excluded: that the parties did not intend by the stipulation to waive the right to object to the defendant’s testimony as inadmissible, under section 399 of the Code, and that the exception therein, allowing a party to testify as to any communication as to whicb. the testimony of the deceased party lias been given in evidence, only applied to cases in which such testimony is given by the adverse party, and not by the one who oifers himself as a witness to testify to such transaction.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This was an action of ejectment originally commenced by one Stephen Canfield. On the 17th of April, 1874, the parties to that action made the following’ stipulations :
    “ SUPREME COURT.
    ££ StepheN Canfield v. AbNER S. AdhiNs.
    ££ It is hereby stipulated and agreed for the purposes of this action, that the following is a statement of the evidence that the witness Stephen Canfield would give on the trial hereof, and that the same may be read in evidence on the trial of this action by either party, with the same force and effect as if the said plaintiff and witness were personally present and examined as a witness therein.”
    Tben followed the testimony.
    On the 28th of March, 1874, Canfield executed and delivered to the present plaintiff a warranty deed of the premises described in the complaint.
    In May, 1874, Canfield died, and on the 6th of October, 1874, the action was revived, and the grantees in said deed were substituted as plaintiffs in his place and stead.
    Upon the trial the defendant read in evidence the testimony of Canfield, taken in pursuance of that stipulation, and then offered himself as a witness, under section 399 of the Code, to give testimony as to personal transactions had with the deceased in relation to the matters contained in said statement. This testimony was excluded by the referee as inadmissible.

      L. Hasbrouolt, Jr., for the appellant.
    The evidence offered was admissible on two grounds: 1. By virtue of the stipulation, irrespective of section 399 of the Code. 2. By virtue of the exception contained in that section. By the stipulation made only a few days before his death, it was agreed that the statement of the evidence that Stephen Canfield would give on the trial of the action might be read in evidence on the trial by either party, with the same force and effect as if the said Canfield were personally present and examined as a witness thereon. It was read in evidence by the defendant. It was, then, to have the same force and effect as if Canfield had been personally present and examined as a witness on the part of the defendant. If he had been, unquestionably the defendant would have been admissible as a witness, not only to the transactions referred to in the stipulation, but to all transactions between him and Canfield. The effect of this stipulation cannot be limited to the narrower meaning that the statement of the testimony was to have the same effect as if it were delivered by the witness orally. It is wide enough in its terms to embrace the construction put upon it by the defendant, and should be construed most strongly against the party making it against whom it is used. The testimony of Adkins was not excluded by section 399 of the Code. The defendant was a competent witness under section 398 unless he came within the prohibition of section 399. The testimony of the deceased person having been given in evidence, the opposite party was a competent witness to the transactions or communications so testified to. It is not material on whose behalf the testimony of the deceased person is given. The Code, as it stands now, makes no discrimination.

      J. WoNaughton, for the respondents.
   BooKes, J.:

The stipulation and the statement of the deceased were put in evidence by the defendant, in order to create the opportunity for the latter to offer himself as a witness in his own behalf, as to personal transactions and communications between them. I do not think this course of procedure was in contemplation of the parties when they entered into the stipulation, nor do I think it authorized under the fair reading of the stipulation. The stipulation bore directly upon the force and effect of the statement as evidence, whichever party should see fit to put it in on the trial. This would not bar the right to insist that the other party should be excluded under section 399 of the Code, because of the death of the party. The right to such objection was not stipulated away. The question is, then, whether the prohibition contained in section 399 of the Code would exclude the defendant from testifying in his own behalf. The clause alluded to provides that the prohibition declared in section 399 shall not extend to any transaction or communications, “ as to which the testimony of such deceased person * * * shall be given in evidence.” Given in evidence bj whom? By the adverse party. Such is its very obvious meaning. This clause was not intended to help a party to the record to give evidence in his own behalf, except in answer to the testimony of a deceased person, when put in against him. The evidence offered by the defendant in his own behalf, as to personal transactions and communications between himself and the deceased, was properly excluded. -It appears that all the excluded evidence offered belonged to that class. ‘ The ruling of the learned referee was therefore correct. The record discloses no error calling for a reversal of the judgment.

Judgment affirmed, with costs.

Learned, P. J., and BoaedmaN, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Bocees, J.:

license: Public Domain

text:
    ELIFF FERRIS, Respondent, v. JOHN VAN VECHTEN as Surviving Executor, etc., and others, Appellants.

      Executor amd trustee — application of funds by, for benefit of trust estate instead of to payment of debts — remedy of creditor — charging debt on trust property benefited.

    Where an executor of a will, under which he is also a trustee, uses moneys in his hands to keep down the interest upon incumbrances upon a portion of the trust property and to repair the same, instead of applying them in payment of the debts of the deceased, a court of equity will charge such premises in favor of the creditors of the deceased, to the extent of the amount so laid out upon them.
    In such a case the court will direct the sale of the entire premises and the payment of the amount due to the creditors out of the proceeds arising therefrom, leaving any equities which may exist between the cestuis que trust, to be settled upon an application for the surplus moneys.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      Eliza Elmendorf died in 1858, leaving a will by which she appointed John Van Vechten, one of the defendants, and another, her executors. By her will she left the rents, issues and profits of all her property, in trust to the defendant, Sarah E. Elmendorf and her husband, Nicholas Elmendorf (now dead), and to the survivor of them for life, with remainder over in fee to the defendants Julia and Nellie L. Elmendorf. The will also contained a power of sale for the payment of debts.
    The plaintiff was a creditor of Eliza Elmendorf, and recovered a judgment against her said .executors in an action commenced ■before her death, on which judgment the surrogate of Ulster county, on proceedings taken for a final accounting of Van Veeh-ten, as such executor, found due the sum of $2,768.39, on the 22d day of December, 1873, and ordered said Van Vechten, his co-executor being dead, to pay that sum, with $209.87 costs, to plaintiff, on the ground that Van Vechten, as executor, had received that sum from sales of real estate of his testatrix, and neglected to apply it to payment of this debt, and had, on the contrary, expended a larger sum of the moneys so received by him on the “ homestead farm ” mentioned in the will, of which the defendants Elmendorf, are devisees, in violation of his duty to creditors. This decision was affirmed by the General Term and by the Court of Appeals, and this action was brought to compel a sale of the homestead farm under the terms of the will for the payment of this debt, and to charge the debt upon the said homestead farm in equity, on the ground that moneys arising from the sale of real estate and property applicable to this debt, had been paid out for the benefit of this farm by the executor, and for a decree of sale to satisfy plain tiff’s claim.
    The cause was tried at the Circuit without a jury. The court found that plaintiff was barred from enforcing a sale under the will by the statute of limitations, but that she was entitled to a decree in equity charging the premises with the moneys arising from sales of other real estate paid out for its benefit,’ and directing a sale and payment of plaintiff’s claim.. From this decree defendants appeal.-

      Chas. A. Fowler, for the appellants.

      Berna/rd <& Fiero, for the respondent.
   Bocees, J.:

We are satisfied with the conclusions of the learned judge at Special Term, as regards the defense of the statute of limitations. Admitting that the plaintiff was barred by the statute from her right to proceed against the real estate of the defendants’ testatrix, under the charge thereon created or declared by the will, as the learned judge found, let us examine the ease on the theory on which relief was granted. The defendant Van Vechten was executor and trustee under the will of Eliza Elmendorf, the original debtor to the plaintiff, and as such received funds belonging to the estate sufficient, and more than sufficient, to satisfy the plaintiff’s judgment, which, to the extent necessary for that purpose, ought to have been applied by him to its payment. Instead of making satisfaction of the judgment therefrom, he applied those funds to the payment of taxes assessed, and to repairs upon the premises, sought to be charged in this action, and in payment of principal and interest on a mortgage on the same, which was a lien thereon at the time of the testatrix’s decease. Thus there was a diversion and misappropriation of the trust funds, held by the executor for the plaintiff, the same having been paid for the benefit of the devisees in the protection, or for the benefit of their interest in the premises sought to be charged. The devisees had the benefit of such application of the fund by the executor and trustee. Now, in the absence of any right or claim to the lands by the devisees, other than as devisees, the premises should be held charged with the trust moneys so applied, or rather so misapplied, by the executor, to their use and benefit. They had no right or equity superior to the plaintiff, being devisees merely, and stood the same as privies to the misappropriation. So the fund could be followed into the land in which it had been invested, and reclaimed therefrom by decreeing it a charge thereon. In this view of the case, the judgment directed at Special Term was well directed. The authorities in support of these views are too numerous and familiar to render their -citation at all necessary.

But it is insisted, on the part of the appellants, that the above considerations do not present the ease in its entirety. It is true that the devisees do not stand alike in their interests in the premises. By the third clause of the will, the testatrix devised her real estate, including the premises in question, to the executors, in trust for the use of the defendant Sarah E. Elmendorf for her life and the life of her husband, and on the expiration of such trust to convey the same in fee to the children of said Sarah, now the defendants Julia and Nellie L. Elmendorf. The husband of Sarah died before the commencement of this action. Thus there was an estate in trust for the life of Sarah, with remainder over to her children, the legal title remaining, in the mean time, in the executors, and the survivor of them in trust. The judgment directed herein charges the entire property with the payment of the plaintiff’s judgment, no note being taken of the different interests of the devisees therein. The appellant’s counsel insists that the interest of Sarah was that of a life tenant, and that, consequently, the application of the fund by the executor to the payment of taxes, and upon the mortgage in satisfaction of interest, and for repairs, was for the benefit of such life tenant alone; hence that the interest of the life tenant should be primarily charged to the extent of its value before' charging the remainder devised to Sarah’s children. But the interest of Sarah was not precisely that of a life tenant. Indeed, she was not a tenant in any sense. The estate for her life was a trust estate, and the surviving executor was the trustee holding the legal title. He was to receive the rents and profits and pay them over, or apply them, during her life, as directed in the will, and ultimately to convey the premises in fee to her children. Thus holding the legal title, he'put trust funds belonging to the plaintiff, or to which he was entitled, into the premises.

Now, in this action, to charge this property thus held by the executor and trustee in trust with this misappropriated fund, it matters not what were the rights and equities of Sarah and her children as between themselves. The plaintiff’s equitable light to the extent of his claim (the misappropriated fund being more than sufficient to satisfy it) was superior to and overrode all rights which the beneficiaries under the will could have. The plaintiff was entitled to have his money restored to him from the lands or its avails. What should-remain after his claim was satisfied would continue, subject to the provisions of the will, to answer the claims of Sarah and her children as their rights should be made to appear. The judgment provides for the deposit of the surplus, if any there should be arising from the sale, with the treasurer of the county, subject to the further order of the court. But as regards the plaintiff, her demand was justly upoñ the entire premises into which, and for the preservation of which, the executor, holding the legal title, had put her money. If these conclusions be sound, the judgment appealed from is not erroneous, because not noting the different standing of the beneficiaries under the will; and in not recognizing their rights and equities, as between themselves, in granting relief to the plaintiff.

The objections suggested by the appellant’s counsel that the plaintiff’s claim was not well proved against the estate, and that the costs of the proceedings before the surrogate and on appeal were improperly included in the judgment, are not, in our judgment, well founded. The claim seems sufficiently proved, and the costs incurred in the process of enforcing it, as remarked by the learned judge at Special Term, became a necessary incident thereto.

We are of the opinion that substantial justice has been done in the awarding of judgment, hence that it should be affirmed, with costs.

BoardMan, J., concurred.

Present — -Learned, P. J., Booees and BoardmaN, JJ.

Judgment affirmed, with costs.


text:
    JAMES H. VANDEMARK, Appellant, v. JOSEPH SCHOONMAKER, and EGBERT SCHOONMAKER, Jr., Respondents.

      Waste — judgment creditor — when injunction granted on application of , to prevent waste.

    Where a judgment is a lien upon hut one piece of real estate, from which alone satisfaction of the judgment can be obtained, the judgment debtor being dead, and where such real estate is an inadequate security for the payment thereof, a court of equity will,upon the application of the judgment creditor, restrain one in possession of said real estate from the commission of waste thereon by cutting and removing timber and wood therefrom, where such acts diminish the value of the premises, and thereby impair the only security upon which the creditor must rely for payment of his debt.
    Appeal from an order denying a motion for an injunction to stay waste.
    The plaintiff was a judgment creditor of the defendant’s devisor, with judgment liens on the premises on which it was alleged the defendants were committing waste. The complaint alleged, among other things, “ that said judgments have not been paid, or any part thereof; that the said Frederick W. Schoonmaker departed this life about the-day of-1872; that the personal estate of the said Schoonmaker has been settled by the executor under the will of the said Schoonmaker, and that under the decree and directions of the surrogate of Ulster county, there is due and payable to this plaintiff out of the personal estate of the said deceased to apply on said before stated judgments the sum of about $300, but that said sum has not yet been paid to this plaintiff.

      “ That the said plaintiff has no other fund, property or security out of or from which to collect or obtain the said judgments than the real estate hereinafter described, which said real estate belonged to the said Frederick W. Schoonmaker deceased, in his lifetime, and is all the real estate of which he died seized, and upon said real estate the said before stated judgments of this plaintiff are liens. * * * That the entire value of such real estate does not exceed the sum of $3,000.

      “ That said premises are incumbered by a mortgage now held by the Ulster County Savings Institution in the sum of principal, interest and costs of about $1,750, such lien being prior to the lien of the judgments of this plaintiff; that this plaintiff is the owner and holder of claims against the said Frederick Schoonmaker, deceased, on which said claims he has recovered judgment against the executor of said Frederick W. Schoonmaker, deceased, for the sum of $762.36 principal, interest and costs, and which said claim he intends to present against his said real estate besides the judgments before stated; and that there is no fund, property or security to pay said claims except the said real estate as before stated.
    “ That the above defendants are two of the devisees of said real estate and own an undivided interest therein; and that such defendants are of no pecuniary responsibility.

      “That there is upon said real estate some valuable timber, which adds greatly to its value, and the cutting and removal of which would greatly impair its value; that the above defendants and their servants and agents are now engaged in cutting and removing such timber and doing waste on said premises and greatly impairing its value, and by so doing impairing and jeopardizing the security of the plaintiffs; that said property with the timber and wood upon the same is insufficient to pay and satisfy the claims of this plaintiff. * * * Wherefore, the said plaintiff demands the judgment of this court that the said defendants, their agents and servants, or each and every one of them be restrained and enjoined from cutting down, falling or impairing any timber, trees or underwood standing or growing on said premises, * * * and that an injunction issue pending this suit restraining, during the pendency of this suit, the acts complained of.”
    The court at Special Term held that he was not entitled to such' relief, and made an order denying his application for an injunction. From such order the plaintiff appealed to the General Term.

      Barnard és Fiero, for the appellant.

      Chas. A. Fowler, for the respondents.
   Bocees, J.:

The denial of the injunction order at Special Term was based on the assumption that the plaintiff, as judgment creditor, and having but a general lien on the lands, had no standing in the court.to claim its protection against the commission of waste thereon by the defendants. Perhaps this position would be sound in case no other facts were alleged, than such as showed the general lien and the acts of waste; and, indeed the authorities sustain this position. But the question here presented is of broader import on the facts laid before the court. It is averred that the premises are an inadequate security for the satisfaction of the plaintiff’s liens, and that his only remedy or chance for obtaining payment is limited thereto, and that the alleged acts of waste in which the defendants were engaged would, if persisted in, materially injure his security, and to a very considerable extent deprive him of the benefits thereof. Thus, as is insisted, the plaintiff has rights to be preserved, with no adequate means of. relief against the alleged wrongs save through the exercise of the equity powers of the court by injunction. Were the plaintiff’s liens specific, as by mortgage, there would be no question about his right to relief, by injunction, on the state of facts here presented. He could then invoke the equitable aid of the court, and be protected from injury caused by the commission of waste. The question then is, should not a party having a general lien be also protected, when surrounded by faets establishing similar and egual eguities? In the one case the property stands alone pledged as security for the debt, by the act of the party; and in the other it so stands by operation of law. To this property and to this alone, according to the facts averred, is the judgment creditor limited, equally as if he were mortgagee. If, therefore, he may be protected in the one case, why not in the other? In neither has the party an adequate remedy, or, indeed, any remedy at law. But in both he may be fully protected, through the exercise of the restraining power of the court, against an admitted and palpable wrong. Waste has always been a subject of chancery jurisdiction. It is generally irreparable in its results, hence especially within the restraining power of that court. And it has been well remarked that courts of equity will exercise a liberal jurisdiction in respect to waste, and in its restraint.

Waste, to the injury of a lien-holder of property is an abuse of right, and will be prevented, because against equity and good conscience. In recognition of this principle, relief by injunction may be demanded, and it will be granted by the courts according to the exigencies of cases as they arise. So, it is said in Willard’s Equity Jurisprudence (Potter’s edition, page 408): It is hardly possible to lay down any rule that shall limit the power and discretion of the courts as to eases in which injunctions should or should not be granted; nor would the attempt so to do be wise. It is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights or redress wrongs.” And Judge Story, in speaking of the wrong and injury here under consideration (waste), says: The jurisdiction of courts of equity to interpose by way of injunction in cases of waste, may be referred to the broadest principles of social justice.” He adds: “ It is exerted when equitable rights and equitable injuries call for redress, to prevent a malicious, wanton and capricious abuse of their legal rights and authorities by persons having but temporary and limited interests in the subject-matter.” (Story’s Equity, § 919.) Thus the courts, acting in accordance with these enlightened and liberal sentiments, have gradually enlarged their scope of action in the exercise of their restraining powers, and they now interpose to prevent wrongs and injuries if, from any cause, the party is remediless at law. Now, under the facts here presented, the plaintiff is without remedy at law. He can be protected in his rights only by injunction. Without relief in that form he must suffer irreparable injury. The law has-given him rights; will not the law then vindicate and protect them ? If not, the rights thus bestowed are delusive and valueless. But we are not wholly without judicial authority on this question. In Tessin v. Wyse (3 Bland’s Ch. R. [Md.], 28-61) an injunction was granted to stay waste in a case where the party had obtained a decree for the sale of premises for the payment of a decedent’s debts. It was there shown to the court that the defendants, before and since the decree (or judgment), had been and then were felling and carrying away and selling timber and trees from the land, and that (.he whole of the real estate of the deceased would be insufficient to pay the plaintiff’s claim; whereupon it was held that the estate would be. immediately protected from injury and loss until a sale could l>e effected, and an injunction was granted.

Here there was no act of the party by way of pledge as there is said to be in the case of a mortgage, but a right secured by compulsory .proceedings in the court. This right so obtained was protected by injunction. This subject is treated with marked ability, clearness and entire fairness in Camp v. Bates (11 Conn., 50). It was there held, that where land of an insolvent debtor has been attached in a suit at law, it is competent for a court of chancery, during the pendency of such suit, to enjoin him against the commission of waste. The case cited differs from the one in hand in this, that the lien was .by attachment instead of by judgment. Both, however, are liens procured by compulsory proceedings, not voluntary pledges by the debtor; and the right to protect a lien on real estate, obtained through legal proceedings, was considered and declared in the case cited. Williams, Ch. J., says: “The land, then, upon which the waste complained of is committed, is the land of the defendant, taken into the custody of the law to secure the plaintiff’s debt. It is, in short, a pledge for the debt, taken by the creditor, not by the debtor’s consent, but in pursuance of the provisions of law. It is a lien thus created.” So here the judgment is a lien, by which the land stands pledged for the debt by operation of law. As Judge Williams remarked: “The question then arises, does the law give this privilege, and then leave the debtor to take it away or destroy it % Does the law give a privilege, and allow a party against whom it is given to render it useless ? Is a court of chancery so entirely impotent, or is it so fettered by its own rules that this may be done, and the court have no power to prevent it ? ” These significant inquiries the learned judge answers in the negative, and in the course of his argument observes, with reference to the power of the court to protect the lien holder, that the case in principle seems much like that of a mortgagee; that in both cases the land is appropriated as security for the debt. “ Why then,” he asks, should not a court of chancery have the same power to prevent waste upon this property in the one case as well as the other ? If it is done in the one case, that the security given by the party should not be destroyed, it should be done in the other, that the security gimen by the law i should not be destroyed ; ” and he adds, “ surely the law must be as anxious to guard its own enactments as the promises of the parties themselves.” The decision in Rohrbach v. Germania Ins. Co. (62 N. Y., 47) has, I think, also direct bearing on this case. The reasoning and conclusion of the learned judge who spoke for the court in that case, sustains the views above expressed. It is there held, in effect, that a judgment creditor and a mortgagee stand upon the same footing as regards the real property on which they have liens, when the creditor makes a case showing that he must look to such property alone for satisfaction of his claim. Judge Folger says, as the real estate was bound by the lien, “ as it alone was bound, as there was naught else, nor any person liable for the debt, it is difficult to see why, in effect, the debt was not as if a specific lien upon this real estate.” He well adds that although the judgment lien may not be in technical language a specific lien upon that real estate, yet it is true, in fact, that there is a specific piece of property from which alone satisfaction must be obtained, which is alone legally bound; and that practically the judgment creditor is just like one to whom that piece of real property has been specifically pledged for a specific debt; and the learned judge adopts, with approval, the remarks of Judge DeNio, in Herkimer v. Rice (27 N. Y., 163), that “ creditors, having ño other means of enforcing their debts, but having a direct and certain right to subject the real estate to a sale for their benefit, have an interest as positive and absolute as one having a specific lien.” We are cited to the ease of Lanning v. Carpenter (48 N. Y., 408), as an authority in support of the decision of the Special Term. But what was there decided was this: that a judgment creditor, having but a general lien on his debtor’s lands, could not recover damages for waste committed before sale under his judgment. The greater, then, the reason why his lien should be protected in equity, until he could make it of value according to the forms of law. On this point, however, see Yates v. Joyce (11 Johns., 136); Southworth v. Van Pelt (3 Barb., 347, on page 350, et seq.); Gardner v. Heartt (3 Denio, 232). The action for damages for waste after sale is given by statute. (2 R. S. [Edm. ed.], 347, §§ 20-23.) But neither the decision in Banning v. Carpenter nor the statute referred to deprives a party of his equitable remedy to stay waste under the facts here presented ; and the decisions, which are supposed to maintain the doctrine that a general lien-holder may. not have the remedy here sought, as is remarked by Judge Folger in Rohrbach v. Germ. Ins. Co. (supra, p. 55), go “ very .much upon the fact or assumption that the judgment debtor had other property, real or personal, to look to than the real estate damages; and that they do not touch the case of a judgment creditor whose only or principal reliance for payment was upon the property destroyed.” It seems monstrous injustice to permit the only security a judgment creditor may have from which to obtain satisfaction of his claim to be destroyed and lost to him, by the act of a party without right, or whose rights, if any he may have, are entirely subordinate to the judgment lien. It may be asked, with emphasis, whether the law gives the creditor a lien, yet leaves the debtor, and even third persons, to destroy or take it away; whether a court of chancery is so utterly impotent that this may be done without the power to prevent it. In my judgment the lien-holder, in a case like this now before the court, is entitled to have his lien protected to him upon the commonest principles of rational justice ; and his sole protection is in the restraining power of the court.

The order appealed from should be reversed, and a preliminary injunction should be granted according to the prayer of the complaint ; and the appellant is entitled to ten dollars costs of the motion, and ten dollars costs and disbursements on the appeal. These costs, however, should be made to abide the event of the suit; to be allowed to the plaintiff only in case he should establish his cause of action.

BoaedmaN, J., concurred.

Present — Learned, P. J., Bocees and Boardman, JJ.

Order reversed and injunction granted; ten dollars costs of appeal and printing, and ten dollars costs of motion to the plaintiff to abide the event of the action.


author: BooKes, J.:

text:
    SAMUEL LAW, Respondent, v. LUTHER S. McDONALD, Appellant.

      Water pi'imlege — acquisition of by user — License — by whom it must be proved, — EquitaXle actions — costs in— Oode, § 804
    A right to the use of water in a particular manner may he acquired by an uninterrupted adverse enjoyment thereof for a period of twenty years.
    In such a case it rests upon the party submitting to such user to show that it was by license or permission. It is not necessaryfor the party claiming it to prove ■ an express claim of right, in order to characterize the user as adverse.
    Where in an action in equity each party succeeds as to part of the matters in litigation between them, costs are not allowed to either as against the other.
    Where in an equitable action the complaint set forth two causes of action, as to one of which the plaintiff succeeded and as to the other of which he failed, held,, that it was error to award him the costs of the entire action, including those incurred in the trial of that cause of action as to which the defendant succeeded.

      The discretion vested in the trial court to award costs in equitable actions is subject to review at the General Term, when it has been exercised in manifest disregard of equity and right.
    Section 304 of the Oode, awarding costs to the successful party, as a matter of right, in cases where the title to real property is brought in question, applies only to actions at law as distinguished from actions in equity.
    Appeal from a part of a judgment in favor of the plaintiff entered on tbe report of a referee.
    The action was in equity. The complaint contained two independent causes of action: one for an alleged unlawful obstruction and diversion of an arm of the Delaware river; the other, for an alleged unlawful removal of, and interference with a water pipe, through which the plaintiff drew water to his premises from a spring situated on the defendant’s lands. Equitable relief was sought as to each alleged cause of action. The referee found in favor of the defendant on the first count of the complaint, and against him on the second; and awarded costs generally to the plaintiff. From the judgment entered against the defendant he appealed to the General Term.

      O. W. Olarh, for the appellant.

      D. D. Niles, for the respondent.
   BooKes, J.:

The referee found that the plaintiff established his right to draw' water from the spring situated on the defendant’s land, by adverse use. It was proved beyond controversy that water had been taken from the spring and conducted through a pipe to the plaintiff’s premises, as claimed by the latter, for a period of about twenty-seven years prior to the defendant’s interference with, and removal of the pipe. But it was insisted by the defendant that such use of the water was merely permissive under license, and otherwise without right.

The plaintiff was without paper evidence of any grant of the right to or use of the water. He, however, showed as he insisted, and as the referee found, definite, continuous, and as to the defendant and his predecessor in title, an exclusive and notorious use of the water for á period of twenty-seven years. It was held in Townsend v. McDonald (12 N. Y., 381), that a party acquires a right to the use of water in a particular manner, by an uninterrupted adverse enjoyment of such use during twenty years. The entire doctrine is stated by Judge DeNIO in this case (page 391), that “if one proprietor has, during a period of twenty years or more, possessed and used a portion of the hydraulic property belonging to another proprietor, not by license or favor, but adversely and in derogation of the rights of such proprietor, the law, upon considerations of policy, -and for the purpose of quieting a long possession, will presume a grant from the proprietor thus intruded upon to the other, and will preclude the party who has thus acquiesced from asserting the right which he otherwise would have had and the learned judge cites several cases in support of this proposition. And it was held in Hammond v. Zehner (21 N. Y., 118), that it is for the party submitting to the user in such case, to show that it was by license or permission, and not for the party exercising it to prove an express claim of right, in order to characterise the use as adverse. The learned judge in delivering the opinion of the court in this case, and referring to Parker v. Foote (19 Wend., 309), says : If the user be wrongful — if it be a usurpation to any extent upon the rights of another, it is of itself adverse, and if acquiesced in for twenty years a reasonable foundation is laid for presuming a grant.” These principles of law, however, are not at all controverted by the appellant’s counsel; but he insists that there is evidence in abundance to show that the use of the water was under license — was merely permissive on the part of the defendant and his grantor. On this question of fact, the case is not entirely free from difficulty. There is some evidence tending to support the position urged by the defendant’s counsel. But after careful reading of all the proof I am inclined to accept the conclusion of the referee as correct. He has given the evidence, as I think, a very careful and fair examination ; his analysis and application of the proof seems just and sound, under the explanations of which it is susceptible and to which he holds it justly subject. Agreeing with him in his views and reasonings as regards this question of fact, comment here would be but useless repetition. It is also sufficient to say that no error appears in the admission or rejection of evidence calling for a reversal of tbe judgment.

But there still remains in the case a question of considerable importance. The referee directed a recovery against the defendant for the entire costs of the suit, amounting to $436.22, notwithstanding the latter succeeded as to one of the causes of action charged in the complaint, the trial of which alone consumed six out of the nine days occupied in the hearing. On this branch of the case the referee finds as follows : (1) That six out of the nine days occupied in the trial of the cause were used in the trial of the first cause of action set forth in the complaint, and as to which the defendant succeeded; (2) that over thirty exhibits relating entirely to the first cause of action were given in evidence by the plaintiff'; (3) that more than two-thirds of the oral evidence given on the trial of the cause related solely to the first cause of action, and had no relation to the second ; and, (4) although requested by the plaintiff so to find, refused to find that the defendant’s act in removing the pipe from the spring was malicious and vindictive.

The justice and equity of awarding to the plaintiff the costs and expense incident to the trial of the first cause of action, as to which he was defeated, is not obvious. The burden of this part of the trial was also, as it seems, to the extent of two-thirds of the entire litigation.

It has long been the settled rule in equity actions to refuse costs to a party who fails in his claim, although he may succeed in pa,rt. So in that class of actions where each party succeeds as to part of the matters in litigation between them, costs are not allowed to either against the other. (Caldwell v. Leiber, 7 Paige, 483; Crippen v. Heermance, 9 id., 211; Stafford v. Comstock, 3 id., 100; Ten Eyck v. Holmes, 3 Sandf. Ch., 428; Barker v. White, 3 Keyes, 617.) The awarding of costs in equity cases stands on the same footing now as before the Code. (Pratt v. Stiles, 17 How., 211; Phelps v. Wood, 46 id., 1; Church v. Kidd, 10 Sup. Ct. N. Y. [3 Hun], 254.) While the awarding or withholding of cofcts in this class of actions is' discretionary with the court, still such discretion is to be exercised in accordance with fixed principles, having their basis in equity and justice. This discretion may not be capriciously exercised in violation of right; otherwise discretion becomes tyranny indeed, without the power of redress. So it is well said in Barbour’s Chancery Practice (vol. 2, p. 323), that in exercising this discretion courts of 'equity are generally governed by certain fixed principles which they have adopted upon the subject of costs; and do not, as is frequently supposed, act upon the mere caprice of the judge before whom the cause is heard; that the discretion to be exercised is a sound discretion. Doubtless, too, the discretion of the trial court will be conclusive in the case, save when it appears that its exercise has been in manifest disregard of equity and right. So it has been said that the court will not, on appeal, attempt to control this discretion except in cases of its manifest abuse. (Barker v. White, 1 N. Y. Ct. of Ap. Dec., 97, 98; Barker v. White, 3 Keyes, 495; Church v. Kidd, 10 S. C. N. Y. [3 Hun], 254, 271.) But if the question is an open one it is difficult to see how it can be considered other than de novo. Now, in the case in hand, according to well settled rules of equity practice, based on principles of justice and right, the entire costs of the action should not have been awarded against the defendant; he succeeded on one entire cause of action alleged against him, the burden of which was, as to the entire litigation, in the proportion of two to one.

There was nothing in the case, as we can see, indicating other than a mistaken confidence in his defense; and it seems that he was not under mistake as to that, as regards one of the two charges made against him; and judging from the labor and expense attending its development before the referee, that charge was the principal one in .the litigation.' Thus, in the observance of settled rules, costs should have been denied to each as against the other, putting the case in the most favorable light for the plaintiff. This seems so manifest, that the action of the referee in charging the whole costs of the suit against the defendant must be deemed to be error; and to correct such error an appeal will lie to the General Term. (Leslie v. Leslie, 6 Abbott [N. S.], 193; People v. N. Y. Central R. R. Co., 29 N. Y., 418, 422; Bank of Geneva v. Reynolds, 33 id., 160; Hanover Fire Ins. Co. v. Tomlinson, 58 id., 215.) But it is said that the plaintiff was entitled to costs as matter of law, under section 304 of the Code, because the title to real property arose on the pleadings. It has always been understood that this section of the Code had application to actions at law as distinguished from equitable actions. So inasmuch as the latter class of actions were made to depend on equitable principles, costs which were but an incident should also be controlled by like considerations. This seems to he a sound construction of the two sections of the Code here brought under examination (sections 304, 306); and I am constrained to adopt it as a rule, because of the settled understanding of the courts and the profession, as also of its manifest justice.

The conclusions here reached require that the judgment should be modified so as to stand without costs to either party as against the other ; and as so modified it should be affirmed without costs of appeal.

Boardman, J., concurred in affirming the judgment as modified by the opinion of Bocees, J.; Learned, P. J., dissented as to reviewing of costs below.

Judgment modified so as to be without costs to either party, without costs of appeal.


author: Per Curiam:

text:
    JOHN McDONNELL, Respondent, v. MARK S. STEVENS and SOLOMON S. STEVENS, Appellants.
    Reference— examination of long account— Code, § 271.
    An action to recover damages for a breach of a contract to finish certain houses, on the ground that they were not completed and ready for occupancy as required by the contract, cannot be referred, under section 271 of the Code, on the ground that the trial of the action will require the examination of a long account.
    Appeal from an order referring this action to a referee to hear and determine the same.

      Ira D. Warren, for the appellants.

      F. Fish, for the respondent.
   Per Curiam:

This is an appeal from an order referring the action to a referee to bear and determine. The order was made on the pleadings, and on an affidavit stating that the trial of the action would require the examination of a long account. This fact, stated in the affidavit on the part of the plaintiff, was denied on the part of the defendant. No bill of particulars liad been demanded or furnished. The case on the motion, therefore, rested on the pleadings alone.

The action was based on a contract which provided for the finishing of certain buildings by the defendant, and it was charged that they were not completed, ready for occupancy, according to the agreement, and damages were claimed for the breach. It was in regard to such damages that the claim of an examination of a long account was made, It is plain, however, that such damages were not in any respect a matter or subject of account. The measure of damages for the breach would be the difference in value between the houses as they were, and their value had they been finished according to the contract, with, perhaps, such additional damage as the plaintiff had sustained by reason of their not being finished at the time agreed upon for their completion. There was no matter of account embraced in such claim for damages. Even if the plaintiffs were allowed to show numerous particulars in which the defendant was in default in the performance of the contract, and the damage growing out of such cases of specific default, still the damages could not be made matter of account between the parties in any sense.

Order reversed, and motion denied, with ten dollars costs of motion, and ten dollars costs and disbursements on the appeal.

Present — LbaeNed, P. J., Bocees and BoaedmaN, JJ.

Ordered accordingly.


author:
BocKes, J.:
      BoaedMAN, J.: LeaRNEd, P. J.

text:
    HELEN REID, a Lunatic, by WM. H. REID, Committee, etc., Respondent, v. HOSEA SPRAGUE, Impleaded with GEORGE J. J. BARBER and CATHARINE BARBER, Appellant.

      Trust — right of cestui que trust to follow tn'ust property — assignee of bond and mortgage.

    A testatrix devised all her estate of which she was possessed, or which was held in trust for her, to her daughter Catharine, the income to he expended for the support of her daughter Helen during her life with remainder to Catharine, and directed her “ trustee ” to convey her real estate in accordance therewith. Catharine sold a piece of the real estate and took back a mortgage payable two years after the death of Helen. Catharine after having applied the interest of the mortgage for many years to the support of Helen, assigned the mortgage to one Sprague, to secure a note then given to him by her husband.
    Sprague having refused to apply the interest to the support of Helen, a lunatic, this action was brought by her committee to secure the payment thereof. Held (1), that under the will Catharine became a trustee for the benefit of Helen; (2), that the mortgage was a portion of the trust fund held for her benefit; (3), that Sprague acquired no greater rights than his assignor had, and that the mortgage was subject, in his hands, to the execution of the trust created by the will.
    An appeal by tbe defendant Sprague from a judgment entered on the direction of Mr. Justice James, before whom the action was tried without a jury.
    The action is in equity, and was brought for and in behalf of Helen Reid, a lunatic, by her committee, to protect her beneficial interest in a bond and mortgage given to the defendant Catharine Barber, and- by the latter assigned to the defendant Sprague. The facts of the case are as follows : In 1851, one Jane Chamberlain died seized of the premises described in the complaint.
    Her will, which was duly admitted to probate, contained this clause: “I, Jane Chamberlain, of Johnstown, devise and bequeath all my real and personal estate of which I am possessed, or which is held in trust for me, to my daughter Catharine Barber, the income of which is to be expended for the support of my daughter Helen during her life, and then the principal to belong to my daughter Catharine Barber, her heirs and assigns, and I direct my trustee to convey my real estate according to the above devise.”

      In 1852, said Catharine, under the direction to convey or power of sale contained in the will, sold and conveyed the premises to one Rodney Johnson, who gave back to her a bond and mortgage thereon to secure the purchase-price ($1,500), the interest on which is the subject of controversy in this suit. The bond was conditioned for the payment “of $1,500, in two equal annual payments, from and after the day of the death of Helen Reid * * * with annual interest.” The interest accruing upon the bond, from its date to March 3, 1872,was duly paid to Catharine, and applied to the support of Helen.
    In April, 1872, George J. J. Barber, the husband of Catharine, borrowed $1,500 of the defendant Sprague, and gave his note to the latter therefor, payable ten years from its date with annual interest, and Catharine then assigned the bond and mortgage to Sprague, as collateral security for the payment of such note. Sprague testified that he loaned the money to Barber on the faith of the assignment. The note remained unpaid, except the sum of $736.20, paid thereon in June, 1873 ; and the defendant Sprague claimed to hold the bond and mortgage, both principal and interest, under the assignment, and declined to allow the interest to be used or applied to the support of Helen. The learned judge held as conclusions of law: (1), that Catharine, under the will,' took an estate as trustee for the life of Helen, in the premises devised, with a power of sale and a vested remainder in fee; (2), that as such trustee she was to receive the property given and devised to her in trust, and apply it to' the support of Helen during her life; (3), that under the power of sale, Catharine was authorized to sell and convey the premises absolutely, and that the grantee took the entire estate, both present and future; (4), that the bond and mortgage received by her on the sale became a fund in her hands as trustee, so to remain and continue so long as Helen should live; and that Helen was the beneficiary of the trust fund to the extent of the interest accruing thereon during her life. Judgment was directed and entered in accordance with such conclusions of law, declaring the assignment of the bond and mortgage to Sprague void, as to the interest which should accrue thereon during the life of Helen; and it was further adjudged, that as between the defendants, after the death of Helen, the bond and mortgage should be the property of Sprague under the assignment, as security for what should remain due on the note given him, as also for such costs and interest thereon as he should be required to pay the plaintiff in this action; and costs of the action were awarded against him. Catharine was removed from the trusteeship and another' was appointed in her place, to collect the interest on the bond and mortgage, and to apply such interest to the support of Helen during her life. The defendant Sprague alone appealed from the judgment to the General Term.

      M. M. Waters, for the appellant.

      Martin MeMartin, for the respondent.
   BocKes, J.:

There can be no question, I think, but that the bond and mortgage became, or represented a trust fund in the hands o.f Catharine Barber, as to which Helen Reid was the beneficiary for and to the extent of the interest which should accrue thereon during her life. Those instruments were given to secure the purchase-price of trust property, sold by the trustee pursuant to the power conferred on her under the trust; and the sum secured to be paid thereby was made payable in terms substantially in accordance with the requirements of the trust, thus indicating, in addition to what equity and the law would declare, a purpose on the part of the trustee that such securities were dedicated to the trust. But it is sufficient that the bond and mortgage were given on the purchase of trust property. This alone made it a trust fund in the hands of the trustee; certainly would this be so to the extent necessary for the protection of the interest and rights of the cestui que trust. Therefore the eestui que trust (Helen) could have taken proceedings against Catharine, while the latter held the bond and mortgage, to protect the fund, if proceedings were necessary for its protection or preservation, with a view to save the trust, and her rights as beneficiary thereunder. If proceedings for that purpose could have been maintained against Catharine, they may also be maintained against her assignee. It is now the settled rule that an assignee of a bond and mortgage occupies precisely the position of his assignor in regard to the securities, with no better rights or equities. (Bush v. Lathrop, 22 N. Y., 535; Sheldon v. Edwards, 35 id., 283; Mason v. Lord, 40 id., 487; Ingraham v. Disborough, 47 id., 421, 423; Union College v. Wheeler, 61 id., 88.) In the last case cited, it was said {semble), that an assignee of a bond and mortgage, in good faith and without notice, occupied simply the position of the assignor, and took subject to the same rights and equities. It must follow therefore that Helen, the beneficiary in this bond and mortgage, is entitled to be protected in her rights therein. The defendant Sprague must be held to have taken those instruments subject to Helen’s rights.

But the appellant’s counsel may insist that this conclusion is based on a misapprehension of the facts. He insists' that Catha-rine w?.s not a trustee with power to convey the trust estate. In this, however, I think he is under mistake. On referring to the will of Jane Chamberlain, it will be seen that she devised to Catharine the entire estate, that is, all her real estate of which she was possessed, and then declared how it was to be enjoyed. The income thereof was to be expended for the support of Helen during her life. Thus, holding the entire estate, the duty devolved on Catharine to apply the rents and profits as was directed. She became trustee, therefore, ex necessitate rei, as much trustee as if named as such; and this was the plain intention of the testatrix, as she afterwards alludes to “ my trustee,” with manifest reference to Catharine, the devisee. Then she directs “ my trustee ” to convey the real estate, evidently intending the passing of the absolute and entire title, according to the terms of the devise, that is, so as to give Helen the income thereof during life. This construction of the will is obviously in accordance with the intention of the testatrix, and is within the fair meaning of the language employed in the instrument, arid certainly, under this construction of it, the rights of the beneficiary may be fully protected.

In the view above taken of the case, the judgment directed at Special Term was right, and it must be affirmed, with costs against the appellant, but without recourse by the latter to the bond and mortgage as his indemnity therefor.

Judgment affirmed, with costs.

BoaedMAN, J.:

I think the will of Jane Chamberlain gives to Catharine Barber, her devisee and legatee, the power to sell the real estate devised. The income from the real estate till sold and the interest upon the proceeds after sale, were to be received by Catharine in trust for Helen, and applied by her to Helen’s use. In pursuance of such a construction Catharine, in March, 1852, sold the real estate described in the complaint to one Johnson, and took back his bond and mortgage, secured upon this and other real estate, for $1,500, payable in two equal annual payments, after the death of Helen Reid, with annual interest. For more than twenty years the interest was annually paid to Catharine, and by her applied to the use of Helen, under the provisions of the will. In 1872 Cath-arine assigns the bond and mortgage to defendant Sprague, as collateral to a debt of her husband.

Now, the will may not clearly bear the construction which I have given it upon the language therein used. But we have, in case of ambiguity, a right to resort to surrounding circumstances and the conduct of the parties, to aid in its interpretation. There is no evidence that any property was held in trust for the testatrix, or that there was a trustee for any such property. The clause in the will would lead us to suppose the testatrix thought she had such property, but it is far from being evidence of the fact. The will was evidently drawn up by an inexperienced person, and the language used is uncertain in its meaning and wholly defective in its description of property. If Jane Chamberlain had no property held in trust for her by a trustee, then it follows almost inevitably, that Catharine Barber was the person designated by the words my trustee,” in the will. To Catharine was given the fee charged with the direction to sell, and she was charged with the supjoort of Helen out of the income or interest derived therefrom. So, the deed from Catharine assumes to sell, and in form does sell to Johnson the entire title to the land. The whole value is secured by Johnson’s bond and mortgage, payable after Helen’s death. This is thereafter treated as the trust fund ; and for over twenty years the trustee and the cestui que trust treat the $105 interest derived from this mortgage security as the fund, and only fund, applicable to the support of Helen. During the same time the real estate is held by the purchaser free and discharged from its trust character. This conduct of the parties for so long a period, without objection, and with apparent acquiescence on all hands in the disposition of the trust property, goes very far towards aiding in the interpretation of the ambiguous language used in the will. The condition of the plaintiff, a lunatic, forbids the idea of a confirmation or ratification unless it arises from the act of her committee. But it does not appear when he was appointed or what he has done that could by possibility have that effect.

In this view of the case the findings of facts and the conclusions of law of the learned judge are correct, and the judgment should be affirmed.

I therefore concur in the conclusion of Mr. Justice Bookes upon this appeal.

LeaRNEd, P. J.

(dissenting) :

The will of Jane Chamberlain, although inartificial, is sufficient to create a trust estate in Catharine Barber, to receive the rents and profits of the real estate, and to apply them to the use of Helen Reid, during the life of Helen; with remainder in fee to Catha-.rine. (1 R. S. [m. p.], 728, § 55.) The trust estate is only for the life of Helen. (1 R. S., 730, § 86.) It is inalienable. (1 R. S. [m. p.], 730, §§ 82 and 84; Cruger v. Jones, 18 Barb., 467; Tucker v. Tucker, 5 N. Y., 416.)

Catharine, then, could sell the remainder, but had no power to sell the life estate held in trust for the life of Helen; unless, indeed such power was expressly given by the will.

The only part of the will which is claimed, as I understand, to confer this power, is the concluding clause, in these words: “ I direct my trustee to convey my real estate according to the above devise.” Now the testatrix had previously in her will devised all land which is held in trust for me,” to Catharine Barber, for the purpose above specified. It seems to me, therefore, that this concluding clause was intended to direct the trustee of the testatrix to convey the land which was held in trust for her to her devisee, according to the above devise, and that it has no application to Catharine Barber’s powers as trustee.

For several reasons: 1. Catharine Barber was not the trustee of the testatrix, blit of Helen Reid. 2. The testatrix had not previously spoken of Catharine Barber as a trustee. 3. The clause is directory, not permissive, and could not be intended to give a mere power to sell, or not, at a trustee’s discretion. 4. If Catharine Barber was the trustee referred to in this clause, it was meaningless to direct her to “ convey according to the above devise.” She was not to convey the property, but to hold it for the support of Helen, as had been previously stated. 5. The conveyance directed was of “ my real estate.” After the devise had taken effect and the land was held by Catharine Barber, on the trust, it would not be the real estate of the. testatrix. While on the other construction, the language used would be appropriate to direct some person holding land in trust for the testatrix to make a conveyance thereof according to the terms of her will. 6. If it had been intended to give a trustee power to sell trust estate, there would be no meaning in the words according to the above devise such a salé would not be according to the devise. 7. The trustee referred to is not authorized to sell, but directed to convey. And the language does not imply any compensation to be received by the trustee.

For these reasons the only meaning which I give to that clause is that the testatrix had, or thought she had, some real estate held in trust for her; that she desired such real estate to go according to her previous devise, and that she deemed it best to direct her trustee to convey it accordingly. So far as the construction of the will is to be derived from the meaning of testatrix, it is immaterial whether she had, or only thought she had, land held in trust for her.

With this view of the will, I think that Catharine Barber had no power to convey to Johnson the trust- estate, free from the trust imposed. (1 R. S. [m. p.], 730, § 84.) Her conveyance may have been valid to transfer to him the remainder, after the trust life estate.

The statute absolutely protects the cestui que trust. She cannot be deprived of her right to the rents and profits. She is not bound to accept, and indeed has no power to accept, the bond and mortgage as a substitute for the land. To hold that she has any interest in the bond and mortgage, is practically to hold that she has lost her right to the rents and profits of the land ; a right declared by statute to be absolutely inalienable. (1 R. S., 730, § 30.) I think that the cestui que trust is still entitled to those rents and profits wherever the title to the land may be.

For these reasons I think that the judgment should be reversed.

Judgment affirmed with costs.


author: LgaRNEd, P. J.:

text:
    JAMES C. WHITNEY, Respondent, v. THE BLACK RIVER INSURANCE COMPANY, Appellant.

      Policy of insurance — increase of risk — “ Vacant and unoccupied" — meaning of— intention of insured.

    In an action upon a policy of insurance, the company defended on the ground that, after the issuing of the policy, the premises, a saw-mill, had been so used as to increase-the risk, by keeping and running a planing machine therein. It appeared upon the trial that the planing machine was in the mill prior to and at the time of issuing the policy, and that no attempt was made to conceal the same. Sold, that, as the defendant did not set up false representations or a breach of warranty as a defense, but simply that the risk has become greater than at the time of the issuing of the policy, that the defense was properly overruled.
    The words “ vacant and unoccupied,” as used in policies of insurance, must be construed with reference to the kind of structure or building on the premises.

      Semite, that to render a saw-mill vacant and unoccupied, there must he an entire abandonment of it by the owner.
    Although in most cases the question of the intent of the owner is immaterial, yet, in the case of a saw-mill, it is admissible as bearing upon the question of abandonment.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to recover the amount of a policy of insurance, issued upon a saw-mill belonging to the plaintiff.
    The action was defended on the ground of a fraudulent overvaluation of the property, and on the further ground that it was forfeited by a violation of a. provision of the policy, to the effect that, if “ the aforementioned premises shall be occupied or used so as to increase the risk, or become vacant and unoccupied,” then the policy should be void.

      James F. Sta/rbuck, for tbe appellant.
    The defendant, by the covenant for occupation, secured the right to have the property continue to be occupied as it was when the policy was issued, or at least substantially in the way such property is usually occupied. {Keith v. The Q. Fi/re Ins. Co., 10 Allen, 228; Paine v. Agrl. Ins. Co., 5 N. Y. S. C., 619 ; Harrison v. City Fire Ins. Co., 9 Allen, 231; 15 Wis., 138.) The policy contained a provision to the effect that, if the premises should be used so as to increase the risk, or the risk be increased without consent, the policy should be void. The mill did contain a planer, and the defendant did not know it; such planer did increase the risk, and this being so, the policy was void. ( Webber v. F. R. Co., 2 Met., 117; Merbry v. M. Ins. Co., 5 Gray, 541; Lymam. v. State Ins. Co., 14 Allen, 329.) It is not necessary that the use of the planer should have caused the fire. It is enough that it was there, and that the risk was thereby increased. (May on Insurance, §§ 582, 223, 224; Merriam v. M. Ins. Co., 19 Pick., 162; Wood v. 27. Ins. Co., 3 Seld., 530.) The fact that the planer was in the mill and in use prior to fire, does not affect the question of the forfeiture. {Mead v. .Northuniberland Ins. Co., 3 Seld., 530; Wall v. F. R. M. Ins. Co., id., 370; Hobby v. Dacey, 17 Barb., Ill; Smith v. Her. M. and T. F. Ins. Co., 32 N. Y., 399; Jennings v. Ch. M. Ins. Co., 2 Den., 751; Alb. Law Jour., vol. 8, p. 308; Apfleby v. Foreman’s Hernd. Ins. Co., 45 Barb., 459; Glen v. Lewis, Weis., Hurl. & Gord., Exch., 607; Riee v. Flower, 1 Gray [Mass.], 426 ; Lockner v. Home M. Ins. Co., 4 Qhio, 285 ; Fire Association v. Williamson, 26 Penn., 196; HoweY. Baltimore Eg. Ins. Co., 16 Ind., 377; Gurry v. Commonwealth Ins. Co., 10 Pick., 535 ; Stetson v. Mass. M. Ins. Co., 4 Mass., 330; Johnes Mfg. Co. v. Mfg. M. Ins. Co., 8 Conn., 82 ; Schenck v. Union M. Ins. Co., 4 Zab. [N. J.], 447; Parmler v. Hoffman F. Ins. Co., 54 N. Y., 193; Celt v. Phoenix Ins. Co., id., 595.)

      Leslie W. Russell, for the respondent.
    The courts have decided that the mass of printed conditions in printed policies of insurance, are to be strictly construed against the underwriter. {McMasters v. Presdt., etc., Ins. Co. N. Am., opinion of the court, 55'N. Y., 232; Reynolds v. Commerce Ins. Co., 47 id., 604; Rowley v. Empire Ins. Co., 36 id., 550; Rcmn v. Home Ins. Co., 59 id., 388.) And the breach of any condition must be set up affirmatively, and the defense strictly limited to those allegations. (Williams v. Mechanics and Traders' Ins. Co., 54 N. Y., 577.) And admission of evidence under it, not pleaded, is error. (D'vmon v. Dunn, 15 N. Y., 498 ; Wright v. Delafield, 25 id., 266.) In the absence of warranty the name is merely a description, and used for a description; it is no guarantee that the building is and will not be used for other purposes. (Burr v. Broadway Ins. Co., 16 N. Y., 267 ; Honkers, etc., Ins. Co. v. Hoffman Ins. Co., 6 Rob., 316; Smith v. Mechanics and Traders' Ins. Go., 32 N. Y., 399; 2 Pars, on Con., 325.) And there is no such thing as a constructive warranty. It must be expressed. (Jeff. Co. Ins. Co. v. Cotheal, 7 Wend., 73; Philips on Ins., 112.) Mere concealment, without actual fraud, cannot affect policy. (Cates v. Mad. Co. Ins. Co., 5 N. Y., 469.) Even if there had been ambiguity in the name, yet the presumed knowledge of the agent, and the light in which the plaintiff believed the agent acted, is competent evidence to lead the court aright. (Reynolds v. Comm. Ins. Co., supra ; Benedict v. Ocean, Ins. Co., 1 Daly, 8; affirmed, 31 N. Y., 389; Mayer v. Exch. Ins. Co., 3 Abb. Ct. App. Dee., 269; Leslie v. Enich. Ins. Co., 5 N. Y. S. C., 193.) Even if any part of the description be false, if enough remains to point out the place it is sufficient. (Bryce v. Lorillard Ins. Co., 55 N. Y., 240.) And even had there been a warranty that the building had been a, saw-mill alone, presumed knowledge of the defendant was sufficient answer. (Bidwell v. N. W. Ins. Co., 24 N. Y., 302.) These' premises certainly could not have become vacant and unoccupied until abandoned for all use, and the time cannot be defined when all of its uses ceased. (May on Ins., 668.) Even in the case of a dwelling-house, a man need not be on the premises all the time. (Shermcm v. Niagara Ins. Go., 46 N. Y., 533.) He.may have a reasonable time for repairs. (2 Pars, on Con., 329.)
   LgaRNEd, P. J.:

Three defenses are set up in the answer: non-occupation of the mill; increase of risk, after the issue of the policy, by using a planing mill; excessive valuation at the time of obtaining tbe policy.

Of the last there seems to be no evidence. The testimony as to the price paid for the premises might have aided the referee in determining the value; but there is no finding on this point.

The clause in the policy on which the second defense depends is: If the above mentioned premises shall be occupied or used so as to increase the risk.” The policy was issued May 28, 1872. There had been a planing machine on the premises, connected with the saw-mill, before December, 1871, and it was there when the policy was issued. There was no change afterwards. The planing machine had been used before. G-oodno, the defendant’s agent, had been on the premises before the policy was issued; he had a general knowledge of insurable property at Morley (where these premises were), including the mill. There was no concealment of the machine.

The defense set up is not false representation, or a warranty as to the mode of use of the building. It is, that after the policy was obtained, the risk was increased. This must mean that, by some act of the plaintiff, the risk became greater than it was at the ¿ime of insurance. Several cases are cited by the defendants showing that where there is a warranty as to the present or the future use of the premises, and such warranty is broken, the insured cannot recover. (Mead v. North. Ins. Co., 7 N. Y., 530; Wall v. E. R. M. Ins. Co., 7 id., 370.) In a later case (Smith v. H. M. and T. F. Ins. Co., 32 N. Y., 399), it was held that the description of the premises was a warranty of their present, not of their future use. But it is not necessary to consider what the warranty is. The defense is not made to depend upon it, but upon an actual increase of the existing risk.

If the use of the planer was a breach of the warranty contained in the description of the premises then, as was said in the case last cited, the warranty would have been broken i/npresentí. But the defendants do not claim this; they assert only that, by a subsequent act, the risk was increased, contrary to the condition of the policy. The defendants evidently appreciated this, because they asked leave to set up an amended answer containing allegations of fraudulent misrepresentation as to the condition of the property in respect to this planer; and leave was refused.

The third defense is, that the premises were “ vacant and unoccupied,” from April 1 to May 16, 1873.

The referee finds that the mill had been used as a custom mill. and to saw the owner’s lumber; that in the winter of 1873 one man did most of the sawing; that the gang broke down in February, 1873; that some work was done by the English gate until April seventh, when a portion of the belts were taken to the plaintiffs store, and no more sawing was done until ,the last days of April, when the belts were taken back and two to four days of sawing was done; that no more use was made of saws or machinery till the .fire; that the plaintiff’s men were occasionally at work about the mill handling lumber, and a few sales of lumber were made from the mill after April seventh. At the time of the fire there were about 100 logs remaining at the mill yard, and about 160 standard logs about 100 rods above the mill, intended to be cut at the mill. The referee finds that the premises did not become vacant and -unoccupied.

The words “ vacant and unioccupied ”' must be construed with reference to the kind of structure or building on the premises. Occupation of a dwelling-house is living in it.” (Paine v. Ag. Ins. Co., 5 N. Y. S. C. R., 619.) But people do not live in a sawmill. In Keith v. Quincy Fire Ins. Co. (10 Allen, 231), the plaintiff closed up a trip-hammer shop, the property insured, and it was held to be vacant. A shop of that kind, ordinarily, has people working in it on every working day. A saw-mill is different. If a custom mill it must depend on the logs brought to it for business. In any case, when driven by water power, it must rely on the supply of water, and must be idle when that fails. Nor does it appear to me that the intent of the owner is of any use in determining the question of mere vacancy of the building. A house is none the less vacant because the owner intends to occupy it again. And, in like manner, if a saw-mill can properly be said to be vacant and unoccupied in any ease, then, if for want of water it lies idle a week, it is vacant, although the owner is ready to resume work as soon as he can. I cannot think that such should be taken to have been the meaning of the parties.

Of course the policy is the contract between tile parties. But still, in construing this contract, it is just to notice that this condition, on which the defendants rely, is contained in those two or more, finely (almost microscopically) printed pages which follow .the written part of the insurance policies, and which, probably, no insured person ever reads. It is especially necessary, therefore, that the written part should control the printed; and it seems to be hardly possible to apply the words, “ vacant and unoccupied,” with the meaning which they ordinarily have, to a saw-mill like this, driven by water power. If a few days of non-user of the sawmill are to be construed to avoid the policy, that construction seems inconsistent with the contingencies of use, which must have been contemplated by the parties who had knowledge of the nature of the property.

Perhaps there might be such entire abandonment of the mill as would be, in respect to such property, equivalent to the closing and leaving unoccupied of a dwelling-house. But I think that such abandonment was not proved; that the referee correctly decided that this defense was not made out.

The defendants, while examining one of their own witnesses, offered to show that the plaintiff had endeavored to prevent him from testifying. The plaintiff objected, but subsequently this testimony was admitted, so that the defendants are not injured.

Evidence of arrears due from the property, to maintain the dam, was excluded. This was not error. A lien on the property did not tend to show an overvaluation.

The defendants insist that proofs of an arrangement made by the plaintiff for logs to stock the mill was improperly received to show absence of intent to abandon. They say that there is no question of intent, but only a question of practical vacancy andt non-occupation. I think, as above stated, that this view is correct whenever the words “vacant and unoccupied” can accurately be applied as to a house or shop. But in regard to such property as a saw-mill, as already stated, if these words can be applied at all, it seems to me they can only be used as expressing an abandonment; and to this the intent of the owner is material.

I find no exceptions in regard to the evidence requiring a reversal of the judgment.

The judgment should be affirmed, with costs.

Present — LeaRned, P. J., BooKes and BoakdmaN, JJ.

Judgment affirmed, with costs.


author: LearNed, P. J.

text:
    WALTER S. BROWN, JOHN D. MOWRIS and HIRAM ELMENDORF, Appellants, v. HIRAM H. DAVIS, Respondent.

      Bxempt propee'ty — ‘ team ” — what is — wagon, when exempt.

    Where property is claimed, to be exempt from execution, the burden of proof rests upon the party claiming the benefit of such exemption.
    The plaintiffs, who were householders, owned a wagon worth $100, which was the only lumber wagon they had, and which was used in and necessary for the carrying on of the business in which they were engaged as copartners. Held, that these facts did not show that the wagon was exempt from execution.
    A wagon is only exempt from execution as constituting part of a “team,” which consists of one horse or two horses, with their harness and the vehicle to which they are customarily attached for use.
    This is an action brought in a Justice’s Court by the plaintiffs, to recover possession of a lumber wagon, of the value of $100. The defendant was the purchaser of the wagon at sheriff’s sale, under execution against the plaintiffs, who now claim its return on the ground that it was exempt property.
    In the County Court the .facts were agreed upon, and are that the plaintiffs were partners under the firm name of Brown, Mow-ris & Co., and were engaged in the manufacture of paper, flour and feed; that as such partners they were the owners of the lumber wagon in question; that they used it in their said business; that it was the only lumber wagon they used, and was necessary to the successful carrying on of their said business, and the support of their respective families; that they were householders, and the wagon was worth $100; that the defendant purchased it at sheriff’s sale, under an execution issued on a valid and subsisting judgment against the plaintiffs ; that such judgment was regular, the execution regular, and regularly issued, and all the proceedings of the sheriff were regular.

      The justice rendered judgment for $110 damages, and five dollars and fifty cents costs, in favor of plaintiffs.
    The defendant appealed to the County Court of Ulster county, where judgment was given for defendant, and the plaintiffs bring appeal to this court.

      Hull & Childs, for the appellants.

      Charles A. Howler, for the respondent.
   LearNed, P. J.

The facts in this case are admitted by stipulation; and it is further agreed that if the wagon was exempt the plaintiffs are entitled to recover, if not, then defendant is entitled to judgment.

The only facts admitted, which are material on the question of' exemption, are these: The plaintiffs were householders; this wagon was the only lumber wagon they owned; it was used in their business, and was necessary for the carrying on of their business; it was worth $100.

It is for the plaintiff to show affirmatively that the wagon was exempt. (Dains v. Prosser, 32 Barb., 290.) A team “ consists of one horse or two horses with their harness and the vehicle to which they are customarily attached for use /” and a wagon, if exempt, is exempt because it is embraced in the description of a team. (Id., 290.)

The facts admitted do noc show that this wagon was part of a “ team ” used by the plaintiff. Each of the plaintiffs may have had a horse or two horses with harness, and with “ a vehicle to which they were customarily attached for use.” If so, these would have been the team ” of that plaintiff. The admission that this was the only lumber wagon owned by the plaintiffs does not show that, either jointly or severally, they did not own other wagons customarily used with their horses, and thus forming parts of their teams.”

In Stewart v. Brown (37 N. Y., 350), a case of partnership owning of the property, it appeared that the plaintiffs had no other-property except a few articles of household property of trifling value.

In Wilcox v. Hawley (31 N. Y., 648), it is said : “It was sufficient for tbe plaintiff to show that this horse constituted his team; that he was a householder; and that his household furniture, working tools and team did not, in the aggregate, exceed in value the sum of $250.’.’

Now, if the facts which are admitted in this case, establish the exemption of the wagon, the proof of similar facts would show the exemption of a pair of horses belonging to the plaintiffs and worth $200. So that an exemption could be established beyond the value of $250.

It has been .held that when the debtor has property of the class or character defined by the statute, which exceeds in value the statutory limits, he may make a selection. (Finnin v. Malloy, 33 N. Y. Superior, 382; Twinam v. Swart, 4 Lans., 263. But no selection is stated to have been made in this case, and there is nothing to show that the plaintiffs property of this character, did not exceed in value the statutory limit. (Seaman v. Luce, 23 Barb., 240; Brooks v. Hathaway, 15 S. C. N. Y. [8 Hun], 290.)

Upon the mere facts stated in the admission and found by the court, the judgment should therefore be affirmed, with costs.

Present — Leaened, P. J., BooKes and BoaedmáN, JJ.

Judgment affirmed, with costs.


author: LEARNED, P. J. :

text:
    MARY ADAMS, Executrix, etc., of WILLIAM ADAMS, Deceased, Respondent, v. THE GREENWICH INSURANCE COMPANY, Appellant.

      Policy of insurance — non-occupation cla/ase — waiver of — other insurance — contribution.

    In an action upon a policy of fire insurance, the company claimed that the same was, by the terms and conditions thereof, forfeited, by reason of the non-occupation of the premises for a period of more than thirty days. Upon the trial it was proved that, about a week after the premises first became unoccupied, notice thereof was given to the secretary of the defendant and he was requested to indorse his consent in writing thereto upon the policy, as was required by its terms, and that he then said, “ we waive all that.” Held, that as the assured, if she had not been misled hy this verbal consent, might have taken steps to prevent the forfeiture, the company could not insist thereon in an action to recover damages for a loss occasioned by the burning of the house while it remained unoccupied.

      Semble, where a policy provides that, “in case of any other insurance upon the property hereby insured,” the assured should be entitled to recover no greater proportion of the loss sustained, than the sum thereby insured should bear to the whole amount insured thereon, that “ th e other insurance ” does not include an insurance effected by a mortgagee, upon his interest as such.
    As between the assured and the company, a heater, set in brick, forms part of the real estate, and is covered by the policy.
    Appeal from a judgment in favor of the plain tiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the case was tried.
    This action was brought upon a policy of insurance, issued by the defendant to Mrs. Emily Adams, upon certain premises owned by her. On the 5th of May, 1874, the dwelling-house so insured was destroyed by fire. On the twenty-fourth -of June Mrs. Adams assigned her interest to the plaintiff’s testator, by whom this action was commenced.
    Upon the trial the defendant insisted that the policy was forfeited by the non-occupation of the premises for more than thirty days, without notice to and consent of the company, as required by the terms of the policy. The defendant also claimed that, under the seventh paragraph of its policy, it was only liable, for a proportionate part of the amount thereof, on the ground that another policy had been issued upon the building. The said paragraph was as follows:
    “ Seventh. In case of any other insurance upon the property hereby insured, whether prior or subsequent to the date of this policy, the assured -shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon, whether such other insurance be by specific or by general or floating policies; and it is hereby declared and agreed that, in case of the assured holding any other policy in this or any company on the property insured, subject to the conditions of average, this policy shall be subject to average in like manner. •
    “ If at the happening of any fire the assured shall have a policy or policies, more general in extent of area, or more general in extent of property or interests insured than is described on this policy, and yet which includes the premises, property or interests herein insured, such more general policy or policies, as between the insured and this company, shall be considered co-insurance for its or their full amount on the property and interest hereby insured, and liable to contribution with this policy; any thing in such more general policy or policies to the contrary notwithstanding.”
    The plaintiff was allowed, against the objections of the defendant, to recover the value of a heater, resting upon a brick foundation, and surrounded by brick, extending about twelve inches above the top of the heater.

      Q. Mg Adam, for the appellant.

      J. Smith, for the respondent.
   LEARNED, P. J. :

The defendants claim that there was no proof of the ownership by Emily Adams of the insured property. On looking at the case it -is apparent that the contest was not on this point, but on the value of the property and the alleged waiver of the non-occupation clause. When the plaintiff rested, the defendants moved for a nonsuit on the ground that there was no proof of the plaintiff’s right or title to have or recover from the defendants the amount of the loss or damage to the property insured.”

The plaintiff is the executrix of William Adams, assignee of Emily Adams, the insured. The defendants,-therefore, did not point out, as a ground of nonsuit, a failure to prove title to the property in Emily Adams. The plaintiff had proved a conveyance of the premises to her, and one witness, at least, had spoken of the property as owned by her. If the defendants relied on the insufficiency of this evidence to show title in Emily Adams, they should have called attention to such alleged insufficiency, so that the plaintiff; might have supplied further proof of title.

When there is a real contest on one point, parties often take other matters almost as admitted. Nor did the defendants, at the close of the case and after the charge of the court, call any attention to this alleged deficiency of proof. And that charge assumes that Emily Adams was the owner at the time of the insurance.

The next question is on the waiver of the non-oceupation clause. It is not disputed that the premises were unoccupied for over thirty-days. Such non-occupation by the terms of the policy worked a forfeiture, unless there were notice to the company and its consent in writing.

It was claimed by the plaintiff that notice, on behalf of the owner, was given to the secretary of the company at its office; that he then and there consented to this non-oceupation ; that he was asked to put this consent on the policy, which was there present, and that he said, “ we waive all that.” This was contradicted by the defendants and was left to the jury as a question of fact.

This is alleged to have taken place on the ninth of April, about one week after the premises first became unoccupied, and about four weeks previous to the fire. Now, at this time, the forfeiture for non-occupation had not taken place, because thirty days had not elapsed. It would, therefore, have been in the power of the insured, if she had not been misled by the verbal consent of the company, through its secretary, to cause the house to be occupied and thus to prevent a forfeiture. The jury has found that the company verbally waived this provision of the policy, while there was yet time for the insured to prevent any forfeiture. The company cannot insist on a forfeiture for an act which they themselves induced the insurer to do. ( Underwood v. Farmers’ J. S. Ins. Co., 57 N. Y., 500.)

Another defense is claimed to arise on the seventh paragraph of the defendants’ policy. Under this the defendants insist that the plaintiff can recover, if at all, only pro rata with another policy ; that is, two-thirds of the amount of loss. But the true construction of this paragraph is, that the “ other insurance ” mentioned does not include an insurance made by a mortgagee upon his interest as such. This construction is 'favored by the language of the latter part of the paragraph : “ In case of the assured holding any other policy,” etc. It has been the construction given by the courts to similar clauses. (Tyler v. Ætna Fire Ins. Co., 12 Wend., 507; S. C., 16 id., 385; Mutual Safety Ins. Co. v. Hone, 2 N. Y., 235; Acer v. Merch. Ins. Co., 57 Barb., 68.) In that last case the language was: “ If the assured or any other person or parties interested shall have, etc., any other contract or agreement for insur-anee,” etc. It was held that the plaintiff’s policy was not avoided by a policy issued to one Curtis, to whom the plaintiff had contracted to sell the property.

In the present case the only evidence (if it be any evidence) bearing on this point is the statement by Emily Adams, in her proofs of loss, that there was another insurance of $4,000, made by another company to Mrs. Anna Plank, executrix, on her interest as mortgagee in the dwelling and additions. Nothing is proved of the existence of any such 'mortgage, or of the amount secured thereby, or of any obligation resting on the mortgagor to insure and assign the policy to the mortgagee.

Giving then the widest construction to paragraph number seven, and taking the statements of the proofs of loss as evidence, the defendants failed to show another valid policy, because they showed no interest existing in any mortgagee.

There was no error in including the heater in the value of the building. It was bricked in and formed a part of the real estate as between these parties..

The questions to Yan Read as to the value of the property were put on cross-examination, and were intended to discredit the estimate he had given in reply to the defendants’ inquiry. For this purpose they were proper. For the same reason it was proper to inquire as to his testimony on a former trial, and as to the value he placed upon the property when selling it. All such questions were intended to show that the estimate given by him at the trial was not truthful. The judge, at the trial, can best determine how far such inquiries are, in each case, to be allowed.

Adams, a witness, had been asked by the defendants, on cross-examination, whether, on a certain interview with Yan Read, he did .not make light of the fact that the house was unoccupied. He had answered that he did not remember. The defendants offered to contradict him by Yan Read, and, on objections by the plaintiff, the court excluded the testimony. This was proper. The matter was collateral, and therefore the witness could not be contradicted.

The judgment and order should be affirmed, with costs..

Present — Learned, P. J., Bocees and BoardmaN, JJ.

Judgment and order affirmed, with costs.


author: Leaened, P. J.:

text:
    HARRIET C. PIERCE, Administratrix, etc., Appellant, v. NORMAN PIERCE, Respondent.

      Mmriage settlement— not performed by husband — does not release dower — Sepm'ation by wife from husband — liability of husband for moneys thereafter expended by wife in Ties' support.

    When, a man, in contemplation of marriage, agrees to make a settlement on his wife, in consideration of which she agrees to relinquish her rights in his property at his decease, and he fails to make the settlement, the widow is not barred of any right which she might have asserted if no such agreement had been made.
    When a wife leaves her husband, on account of his ill-treatment, and lives separate and apart from him for a period of eight years, she has no claim against him or against his estate for moneys expended by her during that period for her support and maintenance.
    In such a case she must obtain a limited separation and an allowance for her support, or she must imrchase such articles as are necessary to her support and maintenance on his credit.
    Appeal from a decree of the surrogate of Delaware county upon the final accounting of the appellant as administratrix of Náthan Pierce, deceased.
    Tbe principal question presented upon the appeal related to the effect of an ante-nuptial agreement entered into between the appellant and her deceased husband, and to a claim made by her for moneys expended by her in her support and maintenance during a period of eight years while she was living apart from him, having left him, as she alleged, on account of his ill-treatment of her.

      Gilbert <& Maynard, for the appellant.

      Gleason <$} Murray, for the respondent.
   Leaened, P. J.:

By the ante-nuptial agreement Nathan Pierce, the intestate, agreed to pay or cause to be paid, to Harriet C. Pierce, his intended wife, if she survived him, $500, for her sole and separate use. In consideration of the $500 “paid to her,” she covenanted and agreed that the money so assigned to her should be in full satisfaction of ber dower, and should bar her from claiming the same, and that she would not claim any share in his personal estate, unless some part were given her by his will, or some act done subsequently to the execution of that agreement.

Nathan Pierce died intestate; never paid his wife the $500, and made no settlement of the same upon her.

When a man, in contemplation of marriage, agrees to make a settlement on his wife, in consideration of which she agrees to felin-qnish her rights in his property at his decease, and he fails to make the settlement, the widow is not barred of any right which she might have asserted, if no such agreement had been executed. (Bliss v. Sheldon, 7 Barb., 152. This case is affirmed, 8 N. Y., 81.) The doctrine is laid down by the text books. (Clancy’s Married Women, 103 ; 1 Greenleaf’s Cruise, p. 203; Tyler on Inf. and Cov-erture, 465.)

In the case above cited the ante-nuptial agreement was to give and assure, by will or otherwise, fifty dollars per year during the natural life of the intended wife, and the use of a certain part of the house and garden. This was to be received in lieu of dower, or any portion of the husband’s estate. The husband’s will gave an annuity to her, only duri/ng widowhood. It was held that the ante-nuptial agreement did not preclude her from claiming the property directed by statute to be inventoried and set apart for her use. And in affirming the judgment the Court of Appeals said: It is idle to talk of the wife being bound by an agreement which the husband in his lifetime virtually repudiated.”

This same doctrine may be found in Howman v. Corie (2 Vern., 190); Pyke v. Pyke (1 Ves., Sen., 376); Mitford v. Mitford (9 Ves., 87).

In Hastings v. Dickinson (7 Mass., 153) the wife was held not to be barred by her covenants from claiming dower, when the husband had not fulfilled the ante-nuptial agreement. In Gibson v. Gibson (15 Mass., 106) such covenants were held not to operate as estoppel. In Vance v. Vance (8 Shepley, 364) the same rule was applied, both to dower and to the distributive share of the personal estate.

In Woodward v. Woodward (5 Sneed, 49) the husband’s estate was sufficient to enable the ante-nuptial agreement to be.carried oat. But inasmuch as the husband had not in fact carried out the agreement, it was held not to be binding on the widow.

It is not the promise, or the executory covenant, of the intended husband which the intended wife accepts in lieu of her future interests in his estate, but it is the actual vesting in her of property in the place of that which the law will give her. Otherwise, as in the present case, the wife would lose her dower and distributive share, and become simply a creditor of the estate. The intestate, Nathan Pierce, never did pay, or cause to be paid, to Harriet 0. Pierce, the sum agreed upon. He never secured it in his lifetime, and he did not even make a provision for it by will. As he “ virtually repudiated the agreement,” she is not bound to accept its terms. She is therefore entitled to the distributive third of the estate and to the $150 ; and of course is not entitled to the $500.

The administratrix appears to be charged with interest on moneys in her hand from October 10, 1870 ; she is credited with the $150, as of the time of filing the account, February 21, 1873. She Should be credited also with interest on this $150, from October 10, 1870.

The widow claims for board, clothing, medical attendance, and other necessaries furnished for herself, during eight years, when she was living separate from her husband; compelled to leave him as she claims by his ill treatment. The claim was properly disallowed by the surrogate. The so-called married women acts have not changed the law of husband and wife, except to the extent expressed or necessarily implied. The decision in Adams v. Curtis (4 Lans., 164), was only, that a married woman, having worked for a firm of which her husband was a member, might recover. The husband did not defend. This does not show that a married woman, living separate from her husband, may sue him or his estate for her board and necessaries. If she has been ill treated she has other remedies. She may obtain a limited separation and an allowance for support. (2 R. S. [m. p.], 146.) She may purchase necessaries on her husband’s credit, if he has turned her out of doors, or the like. (Blowers v. Sturtevant, 4 Denio, 46.) If she takes neither of these courses but prefers to support herself while living separate from him, she has no claim against him for the money thus expended. It is, in that case, reasonable to infer that she acquiesced in the separation, and that it was not altogether owing to his fault. It would be a dangerous principle to hold a man liable to his wife, for money expended on her own support, when she had been living separate from him for eight years, without taking legal proceedings for a separation, and without making purchases on his credit.

The views above expressed render it unnecessary to examine any of the questions as to the exclusion of evidence. The decreé should be modified in accordance wfth these views; and neither party should have costs of this appeal.

Present — Leabned, P. J., Bocees and BoabdmaN, JJ.

Judgment modified, as stated in opinion of Leabned, P. J., and to be settled by him.