author: BRADLEY, J.

text:
    Edmund S. Wilson et al. v. Henry Marryatt et al.

    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    1. Claim against a0 decedent’s estate—Evidence—Declarations of
    DECEDENT.
    On the hearing of an issue as to whether money advanced to decedent by her sons for the purpose of building houses was a gift or a loan, it is not competent for other children to testify that decedent had tallied about having saved money with which to build ; that she had money in the house where she resided; that one of the houses was free, except a mortgage ; that she told of having loaned money to a certain person ; and that they never heard her say that she was indebted to her sons.
    3. Same—When prejudicial—Reversible error.
    Such evidence (considering the relationship of the witnesses) was necessarily prejudicial, as it afforded the inference that the claims were unfounded.
    Appeal from surrogate’s court, Kings Oounty.
    Application by Edmund S. Wilson, as administrator of Mary A. Wilson, deceased, for leave to sell real property of the decedent for the payment of her debts. From part of the decree, disallowing certain claims, Edmund S. Wilson, individually, and Andrew F. Wilson appeal.
    Benj. Estes, for appellants; Charles M. Stafford, for respondents.
   BRADLEY, J.

—By the petition it is alleged that at the time of her death the decedent was indebted to Edmund S. Wilson in the sum of $1,000 and interest, for money loaned by him to her, and that Andrew F. Wilson had presented to the petitioner a claim of $691, for money loaned by him to her; that, as she left no personal estate with which to pay the debts, the prayer of the petitioner was for direction to dispose, for that purpose of the real estate of which she died seised. The matter was referred to a referee to take proofs, etc., and report to the surrogate’s court. The referee having done so, whereby he concluded that the alleged claims be rejected, his report was confirmed, and decree entered accordingly. In the mean time the real property of the deceased had been sold, pursuant .to judgment in an action of partition, and by an order of the court the net proceeds of'the sale were to remain on deposit pending th e proceedings in this matter. The contest is between brothers- and sisters, the children of the decedent; and it is contended on the part of the claimants that there was error in the determination of the facts as presented by the evidence, and in the exclusion and reception of evidence. It appears that two-houses were erected by Mrs. Wilson in her lifetime,—one on Madison street, in the city of Brooklyn, and the other at New-town, in the county of Queens,—ancl that her son Robert B. Wilson was the builder of them. The alleged claim of Edmund S. Wilson was for money loaned by him to his mother to enable her to build the house on Madison street; and, on his behalf, evidence was given by his brother Robert B. Wilson to the effect that Edmund S. loaned his mother $2,000, which, came into the hands of the witness to use, and which was used, for such purpose, and that $1,000 of that stim was afterwards repaid from the proceeds of a loan obtained and secured by her mortgage on the premises. Ilis evidence, and that of Edmund S. Wilson, tended to prove that the decedent loaned to Andrew F. Wilson the sum of $691, which also went into the hands of Robert B. Wilson, and was used by him in the construction of the Newtown house for his mother. There was also some other evidence which the referee and court could have treated as-corroborative of the fact that those loans had been made, and that the moneys were appropriated to the uses beforementioned by Robert B. Wilson. There were some circumstances made to-appear bearing upon the credibility of Robert B. as a witness,, and which, it is claimed, permitted the referee and court to conclude that he was not entitled to credit; and, in view of the interests of the claimants, the effect which should be given to this evidence was a question for the detennination of the court below. The referee, in his opinion, among other things, said :

“ From the testimony, I am inclined to hold that Mrs. Wilson never entered into any agreement with her sons Edmund and Andrew whereby she became legally bound to repay them, or either, Avith or Avithout interest, for money they, or either of them, adAranced for the Madison street or the Himrod street house. Bruce [Robert B.] had lived Avith his mother until her death. Frank [AndreAv F.] had no other home Avhen not on the road, and Edmund also lived with his mother until his marriage. Edmund and Frank Avere both making money.” This is some indication that the referee entertained the víbav that the relation of claimants to the deceased Avas such that,, if they supplied any money to aid in the erection of the houses, it was reasonable to suppose that it was not with any purpose-to create the liability of their mother to repay, but was in the nature of gifts for her benefit. And he further adds, in his opinion, that “itnowhere appears that the mother ever agreed to repay Edmund or Frank principal or interest.” The question for trial, and to be determined, ivas whether those sons loaned the alleged sums of money to the decedent, and upon that question (assuming that they advanced the money) the relation between them and her was entitled to some consideration. Eobert B. Wilson testified that in an interview with his mother, Avhen talking about building the NeAvtown (Himrod street) house, she had remarked that she could do nothing without money, and he said he Avould speak to Frank, and see what he says; that, following this, when the three were together, Frank (Andrew F.) said: “ Mother, I Avill loan you the money. * * * Bruce will take Avhat is necessary to build, and charge it to me.”' The witness further testified that he had Frank’s money, and did so use some of it. The offer made to prove by him what, amount of his brother’s money he used under that arrangement-was excluded, as was also the offer to prove by Andrew F. Wilson that he advanced $691 to his brother Eobert B., to be used in the construction of the house. This Avas excluded, and exceptions taken to the rulings. Much incompetent evidence, consisting of testimony given by the contestants of the ex parte declarations of the decedent, and as to Avhat, they had not heard her say, was received against the objections and exceptions of the counsel for the claimants. Such testimony was to the effect that the mother talked about having saved money with Avhich to build, and that she had some; that the witness never-heard her say she was indebted to any of the boys ; that she also heard her say she had money in different places in the house Avhere she resided; that when the Madison street house had been built, she said it Avas free, except the $3,000 mortgage to Frost; that the Avitness had never heard her mother say she was indebted to Andrew F. or Edmund S. Wilson; that she-told the witness about having loaned money to Effie Moody. The other contestant testified that she never had heard her mother, after the building Avas completed, say anything about any indebtedness to Edmund S., and never had heard her say she ivas indebted to Andreiv F. for any money used in building the NeAvtOAvn house. All this eAddence was clearly inadmissible against the claimants. Brown v. Mailler, 12 N. Y. 118 ; Weller v. Weller, 4 Hun, 195 ; Graves v. King, 15 Hun, 367.

The remaining question is whether the errors in the exclusion and reception of evidence can be disregarded Avithout prejudice to the claimants, Avithin the meaning of the statute which provides that “ such a decree or order shall not be reversed unless it appears to the appellate court that the expectant Avas necessarily prejudiced thereby.” Code Civ. Proc. § 2515. It maybe observed that the question whether the claimants had loaned money to the decedent, and she was. indebted to them therefor, was a contested one, of fact, in support of which claim there was some evidence. The purpose of the evidence of the declarations of the decedent (in view of the fact that the witnesses were her daughters) that she had never said to them, or either of them, that she had loaned any money of the appellants, or owed them anything, would seem to have been to afford the inference that she was not indebted to them, and that their claims were unfounded. It cannot be seen that it may not have had such, or some, effect upon the result. In re Will of Smith, 95 N. Y. 516, it was said by Judge Andrews that, under that section, when the court of review finds that incompetent evidence has been received, or competent evidence rejected, it becomes its duty to determine whether the error prejudiced the party against whom it was committed. If it appears to the court that it did not, then its duty is plain. If, on the other hand, the evidence erroneously admitted or rejected was important and material, and the court cannot say that, notwithstanding the error, the judgment is right, or if it entertains a reasonable doubt upon the subject, then we conceive a case presented where the party excepting was necessarily prejudiced, within this section.” By the application of that rule, the judgment of the supreme court and that of the surrogate were reversed. And to the same effect was the rule, with the like result, applied in Re Snelling, 136 N. Y. 515, 49 S. R. 695. Within the construction and effect of that section, the claimants must be deemed to have been necessarily prejudiced by such rulings. The case in re Miner’s Will, 146 N. Y. 121, 66 S. R. 265, is plainly distinguishable from those cases, and has no necessary application to the present one.

The provisions of the decree of ;the surrogate appealed from should be reversed, with costs in this court to abide the final award of costs, and ■ the matter remitted to the surrogate’s court to proceed therein.

All concur.


source: Caselaw Access Project

author: HATCH, J.

license: Public Domain

text:
    Charles Beetz v. City of Brooklyn.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    1. Personal injury—Proximate cause—City’s liability.
    Permitting quicklime, in barrels, to be placed in a street of defendant city, for the use of a builder, is not the proximate cause of the loss of plaintiff’s eyes, where another child took some of the lime which had escaped through cracks in the barrels, and threw it into a vessel of water held by plaintiff, causing an explosion, which resulted in the injury complained of.
    3. Nuisance—Quicklime.
    Quicklime, in barrels, placed on a street for the use of a builder, is not a nuisance, though some of it escape through cracks in the barrels.

      Appeal from trial term, King’s County.
    Action by Charles Beetz, by Peter Beetz, his guardian, against the City of Brooklyn, to recover damages for the loss of plaintiff’s eyes. The complaint was dismissed on plaintiff’s opening statement of the case to the jury, and plaintiff appeals.
    Albert E. Lamb, for appellant; Alexander H. Van Cott, for respondent.
   HATCH, J.

—The opening statement made by plaintiff’s counsel to the jury in substance disclosed that: In April, 1894, the city of Brooklyn had issued to certain builders a permit to use a portion of the public streets of said city at the corner of Stanhope and Wyckoff streets for placing building material thereon, to be used in the construction of a building then in process of erection. That about two weeks prior to Hay 5, 1894, 12 or 15 barrels of quicklime were placed upon the sidewalk, opposite the building in process of erection, and about 60 feet from the corner of the aforesaid streets, where they were permitted to remain until after said Hay 5th. Some of the staves of the barrels' had opened, allowing the lime to escape' upon the sidewalk in considerable quantities, where it remained exposed during the aforementioned period. The plaintiff was a boy, about seven years of age, living with his parents, upon Stanhope street. The lime stood upon the street in front of a vacant lot. On the afternoon of the said 5th of Hay, plaintiff, in company with some other boys of about his own age, wére playing about the barrels, when it "was suggested that they should build a house in the adjoining lot. One of the boys gathered up a quantity of lime, and carried it on to the vacant lot, where plaintiff was. The latter had a tomato can containing some water, and one of the boys poured some of the lime into the can, which, coming in contact with the water, blew up into plaintiff’s face, and destroyed his eyes. The opening is in substantial accord with the allegations of the complaint, the only substantial difference being that the complaint alleges that the lime was blown in plaintiff’s eyes at the-corner of the streets, and, by inference, without the agency of any intervening cause except the wind. Upon the argument, however, it was not claimed that any allegation of the complaint changed or modified the questions presented upon the. opening.

We are of opinion that the judgment dismissing plaintiff’s complaint was right, and that no liability attached to the defendant upon the facts as disclosed by the opening. It is a well-settled general proposition of law that a party is only-liable for the natural and probable consequences of his wrongful act or omission. Ana, while difficulty frequently arises upon the application of this rule of law to particular cases, yet where it appears that the consequences which flow from the particular act are remote and speculative, no liability attaches. Usually the question of proximate cause is one of fact for the jury to answer; but where the facts present a clear case, the question is to be disposed of as one of law by the court. And the law requires that the injury must so directly result from the wrongful act “ that, according to common experience and the usual course of events, it might, under the particular circumstances, have reasonably been expected.” Jex v. Straus, 122 N. Y. 293, 33 S. R. 48. If the result is of such a character that reasonable prudence and foresight would not forecast its happening as a consequence of the act, then it may not be considered as a proximate cause. Ryan v. Railroad Co., 35 N. Y. 210; Webb v. Railroad Co., 49 N. Y. 420; Read v. Nichols, 118 N. Y. 224; 28 S. R. 867; Railway Co. v. Kellogg, 94 U. S. 469 ; Hoag v. Railroad Co., 18 Am. L. Reg. (N. S.) 214. The parties who placed the lime in the street had the authority of the defendant for what they did. It was not claimed in the complaint or opening by counsel that the lime was per se a nuisance. Upon the argument it is claimed that it was a dangerous substance, and, as allowed to escape, was a nuisance. It "was building material in common use, and we may take notice that it is an essential and necessary article for such purpose. When placed in the street in a convenient and proper manner for use in the construction of a building, it is Ssrmissible, and is not a nuisance. Vanderpool v. Husson, 28 Barb. 196; 1 Wood, Nuis. (3d Ed.) § 256. There is nothing which appears in the case having a tendency to establish that the lime, if left alone in the street, as it was placed, would have inflicted injury upon any person, or that it would be likely to be so blown about as to inflict damage. Could the defendant, in reasonable contemplation, have supposed that children would carry this lime from the street to this vacant lot, and there attempt to make use of it in the manner described? We think to ask the question is to answer it. The lime was harmless as it lay upon the street. It was only made dangerous by the active intervention' of two other agencies,—the boy who carried it, and its contact with water. It does not appear that there was any water near it, or anything connected with it, except the use to which it was commonly put, that would suggest to any one that it could be carried away and mixed in this vacant lot. It is suggested that it was as dangerous as exposed gunpowder, and constituted a nuisance. We are not able to accept this view. It is as commonly in the streets for building purposes as' building stone, is placed therein and used therein daily without danger or serious inconvenience to the general public using the streets. It will probably be found impossible to cite a case where injury has arisen in a manner similar to the one now before us; and to hold the defendant liable in damages upon these facts would, we think, establish a rule of liability beyond that of any adjudged case, and would impose, a rule of practical indemnity for injuries from accidents where the city was in any wise connected. The cases relied upon by plaintiff to sustain his appeal are cases where the danger was within the reasonable contemplation of the city, and such condition a proximate cause of the resultant injury. Such is not the case here.

The judgment should be affirmed, with costs.

All concur.


author: RUMSEY, J.

text:
    Judson S. Todd v. George D. Eighmie.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    1. Vendor and purchaser—Purchaser in good faith.
    A person who buys a title to land, after notice filed of an action to perfect an adverse title thereto, but without actual knowledge of its pendency, is a purchaser in good faith as to another unrecorded title, of which he had no notice.
    2. Same—Purchase of defective title.
    There is no inference of a fraudulent intent, from the purchase of a title known to be defective.
    Appeal from special term, New York County.
    Action by Judson S. Todd against George D. Eighmie to disaffirm a contract for the sale of land. From an order granting plaintiff’s motion for a new trial on the ground of newly- ■ discovered evidence, after the verdict for defendant had been rendered by direction of the court, defendant appeals.
    Reuben H. Underhill, for appellant; D. B. Ogden, for respondent.
   RUMSEY, J.

—The plaintiff and the defendant entered into a contract by which the plaintiff agreed to buy, and the defendant agreed to sell to him, four lots of land on 117th street, in the city of New York. The plaintiff paid $1,000 upon the contract, and incurred expenses in examining the title. As the result of that examination, he declined to proceed with the contract, and brought this action to recover báck the money he had paid and the expenses to which he had been put, for the reason, as he said, that the defendant had not a title to the premises. Upon the trial the plaintiff was defeated. From the judgment entered against him he took his appeal to this court, and the judgment was affirmed. The case is reported in 4 App. Div. 9, and 38 NT. Y. Supp. 304. After the affirmance, this motion was made for a new trial, upon the ground of newly-discovered evidence, and it was granted. From order granting a new trial, the defendant takes this appeal.

The land in question was owned before 1827 by one Ely Moore. The first transaction with regard to it which appears upon the record is a mortgage from one Furman to one Ely Moore, which was recorded in 1828, which recites a conveyance from Ely Moore to Furman. The deed thus recited was not recorded, and there was no evidence of its existence, except the recital in the mortgage. By a series of' mesne conveyances,. Furman’s title to this land was conveyed to one Therasson,. and from him the defendant’s title is derived. Therasson took his title on the 1st day of January, 1853, and has been in possession since that time, so far as appears. The defect in his title, of course, was the failure to record the deed from Ely Moore to Furman, which was only proved by the recitals in the mortgage. The adverse title, of the existence of which the plaintiff complained, arose as follows: On the 1st of May, 1845, Ely Moore gave a power of attorney to one Thomas to dispose of this land,with other lands,by virtue of which Thomas, as attorney for Moore, conveyed to one Norton, on the 1st of December, 1848. Norton retained the title to the property until the 30th of April, 1868, when he conveyed it to one Hawkes. The power of attorney from Ely Moore, and the deed executed by authority of it, were recorded on the 2d day of May, 1868. The plaintiff claimed that, because there was an apparently perfect title in Hawkes 'by deeds properly recorded, the title thus vested was good as against the grantee of Furman, whose deed from Ely Moore had never been recorded; To obviate this objection, the defendant put in evidence a deed from the heirs of Ely Moore in one Motley, made in 1864, and recorded on the 4th of January, 1865, and another deed from Motley to Callaghan, recorded on the 27th of March, 1868, and also a deed from the heirs of Ely Moore to Callaghan, recorded on the 22d of April, 1868. ' It appeared that Callaghan, in May, 1868, conveyed to Therasson. This court held that the deeds from the heirs of Moore to Motley and Callaghan, having been recorded before these creating the Hawkes title, cured the apparent defect in Therasson’s title, and that the defendant’s title thereupon became perfect under the recording acts, so that he could convey to the plaintiff, and give a title pursuant to his contract, and affirmed the judgment. .

Upon the motion for a new trial, it was made to appear that on the 28th day of October, 1864, Therasson began an action against the heirs of Ely Moore, setting out his title in full, alleging that the heirs claimed still to be the owners of the property, and had begun an action to partition it, and asking, as relief, that the heirs of Moore be restrained from proceeding with their action of partition, and that they be required to convey to him. In this action, the complaint and notice of lis pendens was properly filed, on the 28th of October, 1864. It was made to appear, also, that Callaghan was the attorney for some of the Moore' heirs, and appeared in that action for them. The plaintiff claimed that this notice of the pendency of action operated as a notice to Motley and Callaghan of Therasson’s claim adversely to the title of the Moore heirs, and he further claimed that, because they knew at the time they purchased from the Moore heirs that there was an outstanding title, they could not be bona fide purchasers, even as against another adverse title, of which they had no notice.

The question presented upon this appeal is whether that claim of the plaintiff is well founded. A motion for a new trial upon the ground of newly-discovered evidence is not to be granted unless the evidence is of such a nature as, giving it a fair and reasonable construction and effect, is likely to produce a result different from the former one. Whether it is likely or not to do so must depend upon the facts which have ‘been made to appear by the affidavits, and the party moving for a new trial is not entitled upon such a motion to have any inference drawn in his favor of the existence of the facts which have not already been made to appear, unless they are such as are necessarily to be inferred from the facts in evidence. The question raised is to be decided solely upon the facts as they have been made to appear by the plaintiff’s moving papers. From those papers it is fair to infer that the plaintiff had no knowledge of the notice of the pendency of the action in the Therasson case until after the decision of the appeal in this suit; 'and he cannot be chargeable with any laches, either in discovering the evidence or in bringing on his motion. He has therefore succeeded in presenting for our decision the question whether, considering the facts which he alleges with regard to the notice of pendency, those facts would require a different result to be reached upon the next trial. That can only be the case if the law is that, to be a bona fide purchaser under the recording acts, one must buy without any intimation whatever of a defect in the grantor’s title, however technical it may be, at the risk of losing his purchase not only because of the defect of which he has notice, but of any other defect that may exist, whether he knows anything of it or not. The statute provides that a deed, unless recorded, is void as against a subsequent purchaser in good faith, and the answer to the question turns upon the meaning of the words of the statute “ in good faith.’’ 1 Rev. St. p. 756, § 1.

The plaintiff claims that as Motley and Callaghan, when they bought the title of the Moore heirs, had notice by lis pendens of Therasson’s title, their action in buying was fraudulent as against Therasson, and therefore they cannot be holders in good faith as against Horton or anybody else. There are undoubtedly cases which hold that if the purchaser, before paying the consideration, has notice of an adverse claim to the property, he cannot be said to be a bona fide purchaser; but in all these cases the notice which destroyed the bona tides was notice of the claim which was set up as hostile, riot as here, where it is conceded that the purchaser knew nothing of the adverse claim set up, but his title is attacked because he might have known that there was another valid claim against the title which he bought. If that fact takes away his good faith as against any one who may set up a claim to these premises, it is only because it raises an inference of bad faith; that is, that he bought a title which he knew to be bad, with the intention of taking some undue advantage of or defrauding a person who had the actual title to the property. The plaintiff here says that Motley and Callaghan must have known that the title of the Moore heirs was not good, and, because they bought in that title, it must be inferred that they intended to defraud somebody b.y purchasing a title which did not exist, and making it good by getting a prior record of the conveyanees of it; and that, having such an intent to defraud, they cannot be permitted to hold that title as purchasers in good faith towards any one, even one of whose adverse title they knew nothing. If we admitted the conclusion from the premises, which we do not, the premises are not sound. There is no necessary or even fair inference of an intention to defraud or get the advantage of any one by the purchase of a title known to be defective. There may be other reasons for such purchase which would make it perfectly proper to buy the title. One who purchases an estate with knowledge of a prior outstanding title by an unrecorded deed is said not to be a purchaser in good faith as to that title, because to permit him to buy with actual knowledge of such a title would enable him to deprive the prior grantee of his right to this estate, and for that reason it is said that his purchase is fraudulent. But the term “ fraud ” here does not mean actual mala lides, a willful fraud, but only constructive fraud,—the conclusive inference which the law draws from the fact of such a purchase without regard to the actual intent of the purchaser. The buyer may have known of the deed, and have forgotten it, although, having the deed in his mind, he may not know that it was a deed of the same property or of the same estate, but that is a matter of no importance. The law charges him with the knowledge which he had, or with the inferences which he ought to have drawn, no matter how innocently he may have acted in making his purchase, because of his want of memory or of his unsound conclusion. ‘ If he once knew of the deed, or if the deed which he knew of conveyed the title of the premises which he bought, although he supposed that it did not, he is no longer a purchaser-in good faith as to that deed. This is not put upon the ground of any evil intent, but it is simply an inference which the law draws from the undisputed facts. But, in the absence of evidence to charge the purchaser with an actual evil intent in making the purchase, it cannot be said that, because he knew of one adverse title, he thereby becomes a fraudulent purchaser as to another title of which he had no information or suspicion. In this case there is no suggestion of any actual bad faith on the part of anybody. In truth, all the facts disprove it.

With regard to Siotley, there is no claim that he had any actual knowledge whatever of the Therasson title, or of the pendency of the action which Therasson brought. He was simply charged by the lis pendens with such notice as he is-required to infer from its filing, although he was not actually aware of the existence of it. As to him, that notice, of course, had only such effect as the statute prescribes (Code Proc. § 132 ; 13 Am. & Eng. Ene. LaAv, 894); and that was to bind him by all proceeding's taken in the action after the filing of the notice, to the same extent as if he was a party to the action. If he had actual notice of the pendency of the action, it may be that lie would be charged with the knowledge of «any information which he might have gotten by inquiry with regard to it; but, as he had no such notice, the only effect was that his rights, whatever they were, were bound by the judgment, whatever that -was. Page v. Waring, 76 M. Y. 463, 474. There ivas no judgment in the case, and therefore the action had no final effect upon the rights of Motley. As there is no pretence that he had any actual knowledge of the filing of the pendency of the action, he certainly cannot be charged with any actual fraud in making his purchase, because so far as appears, he had no actual notice of any adverse title whatever. If Motley’s deed had been a perfect one, that would be the end of this case. But as Motley’s deed ivas defective, because there was no seal, he only obtained the equitable interest of the Moore heirs, as was held by the prior decision; and it ivas necessary for Callaghan, in order to perfect his legal title, to get from the heirs of Moore a conveyance of the naked legal title, which apparently remained in them after the sale to Motley. This he did before the deed to Morton was recorded. When he obtained it, he knew of this adverse claim of Therasson’s because he was the attorney for the defendants in the action brought by Therasson to enforce it. He was not therefore a bona fide purchaser so far as Therasson was concerned. But there is no evidence or pretense that he bought this property with the intention of defrauding Therasson, or getting any advantage over him, nor is there any suggestion of that kind in the plaintiff’s moving papers. On the contrary, the almost necessary inference is that Callaghan Avas simply the actor in an effort to buy in this apparently outstanding title, for the purpose of protecting Therasson’s apparently defective title, and for his benefit. Therefore no actual bad faith can be imputed to Callaghan, and there is no reason why it should be said that he Avas not a bona fide purchaser as to the other titles of which he kneAv nothing.

These considerations dispose of this motion, because the new evidence of the plaintiff, as disclosed in the moAÚng papers, is not effectual to attack the good faith of Callaghan or Motley, and thereby deprive them and the defendant, as their grantees, of the benefit of the recording act. For these reasons, the motion should have been denied. The order appealed from is therefore reversed, with $10 costs and disbursements, and the motion for a new trial denied, with costs.

All concur.


text:
    Barbara Brozek v. Steinway Ry. Co.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Street cars—Injury to person crossing track.
    Negligence and contributory negligence are questions for the jury where a person, in the daytime, attempted to drive a vehicle across a track, 40 or 50 feet in front of an electric car which was approaching at the rate of § to 12 miles an hour, and was injured by the car.
    Appeal from trial term, Kings County.
    Action by Barbara Brozek, as administratrix of Alois Brozek, deceased, against the Steinway Railway Company, to recover ■damages for the death of plaintiff’s intestate. The complaint was dismissed, and plaintiff appeals.
    F. W. Catlin, for appellant ; Albert E. Lamb, for respondent.
   BRADLEY, J.

'—The plaintiff’s intestate, in his wagon, proceeding to turn from Jackson avenue into Honeywell street, in Long Island City, was, by the collision with it of the defendant’s car on the "avenue, thrown fropi the wagon, and received an injury "resulting in his death. The inquiry here is whether the evidence was such as to present questions of fact for the jury, or those of law only. The latter view was taken by the trial court, and the complaint was dismissed.

The burden was with the plaintiff to prove that the accident was attributable to the negligence of the defendant, and without negligence on the part of her intestate. He was in his bakery covered wagon, drawn by one horse, which he was driving. He occupied the right-hand side of the seat. Left of him, on the same seat, was his son. There were sliding doors on either side, and a window in front. They were open. There was no opening in the rear end of it. The deceased had for some distance driven along Jackson avenue westerly, on the north side of the defendant’s railway tracks, until he reached Honeywell street, into which he proceeded to turn southerly, to go to his home. In doing so he had to cross the two tracks of the railroad. His horse had got across the first track, and his wagon had nearly got over, when its near-side hind wheel was struck by the car, with the result before mentioned. The car was approaching in the same direction he had proceeded to the street crossing. It does not appear by the ■evidence that he saw the car. The son did not see it, nor did he look out in the direction from which it came when the wagon turned to cross over the track. And his evidence is to the effect that his father was looking out to the right, while the car could be seen only by looking to the left. The only occasion for looking to the fight was to see whether any car was approaching from the west on the second track. The evidence tended to prove that the decedent could have looked easterly, through the open door on that side of the wagon, after it turned to go into Honeywell street, but it does not appear that he did so. It is very likely that for this reason the trial court entertained the view that there was a failure of proof that he was free from contributory negligence. This view would be supported if he had, under like circumstances, been crossing steam railway tracks. While freedom from contributory negligence is no less requisite in passing over a trolley road, like the one in question, than in proceeding to -cross the tracks of a steam railroad, what may be negligence in the latter may not in the former. The distinction is in the fact that the trolley car is more subject to the control of the person operating it than is the train drawn by a steam engine. The one can, if the machinery is in order, be stopped in a short •distance, and is therefore more suitable for use in the streets ■of cities. And for that reason it is held that, as between trolley cars and other vehicles on the streets, there is no superior or paramount right of either at street crossings on which is the line of the railwaju There care to avoid collision must be exercised by both the car and the other driver. Buhrens v. Railroad Co., 53 Hun, 571, 6 N. Y. Supp. 224; Id., 125 N. Y. 702, 26 N. E. 752; Zimmerman v. Railway Co., 3 App. Div. 219, 38 N. Y. Supp. 362; Smith v. Railway Co., 7 App. Div. 253, 40 N. Y. Supp. 148; O’Neil v. Railroad Co., 129 N. Y. 125, 29 N. E. 84. While the cars are necessarily confined to the tracks, other vehicles are not thus restricted in their movements, ancl the latter cannot, without culpable negligence, be voluntarily driven upon a railroad track in such proximity to an approaching car as to give apprehension of danger of collision. This restriction in the line of movement of cars is therefore entitled to such consideration as that necessity fairly requires of others in crossing the streets where such a railway is located and operated.

In the present case the conclusion was warranted by the evidence that the defendant’s car was moving at the rate "of 8 to 12 miles per hour up to the time of the collision, and that, when the plaintiff’s intestate proceeded to cross the track, and his horse stepped onto it, the car was from 40 to 50 feet from that place. If that were so, could it be said, as matter of law, that the intestate would have been chargeable with negligence in driving upon the track if he had seen the car that distance away? Unless it would have been imputable to him in such case, it is difficult to see that he should nave been charged with negligence in proceeding, as he did, to cross the track. A trolley car is supposed to be under the reasonable control of the motorman; and persons with vehicles passing over the railroad tracks at street crossings may assume that care will be used to reduce the speed of cars when at sufficient distance from a passing team to permit it, so as to enable the vehicle to get out of the way. Otherwise, it evidently would at times not only be inconvenient, but quite dangerous, to drive at crossings on streets of a city in which such railways are operated.. The view taken of this case is that the evidence was sncli as to-present to the jury the question of fact whether or not the defendant was chargeable with negligence in not decreasing the-speed of the car, when the motorman should have seen that the intestate was crossing the track, and, in view of the distance from him when he proceeded to cross, and of all the circumstances, whether negligence was imputable to Mm in doing so. The time when this occurred was on a clear day in June, about-2:30 o’clock in the afternoon. The way was clear for the motorman to see the movement of the wagon, and for the deceased to see the car; and, if the car was far enough away when the deceased proceeded to cross the track to reasonably enable the motorman to abate the speed of the car so as to-avoid the collision, the jury would have been warranted in the conclusion, not. only that negligence was attributable to the defendant, but, for the same reason, unless other circumstances intervened, that the plaintiff’s intestate was free from contributory negligence. Timony v. Railroad Co. (City Ct. Brook.) 30 .N. Y. Supp. 1071; Id., 145 N. Y. 648, 67 S. R. 868.

We have examined the many cases cited by the learned counsel for the defendant, and none of them, in the view taken of the facts upon which they were determined, support Ms contention that there was no evidence in the present case to support a verdict for the plaintiff. The questions essential to the maintenance of the action were those of fact, and should have been submitted to the jury.

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

All concur.


text:
    Frank D. Phillips v. Joseph Liebmann et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    1. Guardian and Ward—Removal op Guardian—Accounting.
    Code Civ. Proc. §§ 2832-2834 (contained in chapter 18, tit. 7, relating to guardians), provide for their removal for certain causes ; but do not provide for an accounting in the proceeding for the removal. Section 2603 (contained in said chapter 18, tit. 2, relating generally to proceedings in surrogates’ courts) provides that a decree revoking-letters of guardianship may, in the surrogate’s discretion, require the guardian to account. Held, that the authority to require an accounting, conferred by section 2603, applies in proceedings for removal under sections 2832-2834.
    2. Same—Costs—Sureties’ Liability.
    Sureties of a guardian are liable for posts awarded against him by the surrogate, which were incurred in disproving his account, filed in proceedings for his removal.
    Appeal from trial term, New York county.
    Action by Frank D. Phillips, as general guardian of Lulu E.. Walker, against Joseph Liebmann and another, as sureties. on the bond of Henry Semcken and Henry Yager, as guardians of said Lulu E. Walker. From a judgment for $980.46 damages and $136 costs, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.
    Samuel Hoff and Howard P. Okie, for appellants; Frank D. Pavey, for respondent.
   RUMSEY, J.

—On the 31st of December, 1888, Henry Semcken and another were appointed by the surrogate general guardians of Lulu E. Walker, and they, with the two defendants, gave the usual guardian’s bond. Semcken alone assumed the execution of the trust, and all the money of the infant came into his possession. In February, 1895, a petition was filed in the office of the surrogate asking for the removal of the guardians, for reasons therein stated, and a citation was. issued, directed to the guardians and to the two sureties, requiring them to appear on the 26th of February, 1895, at the surrogate’s court, and show cause why the guardians should not be removed and their letters of guardianship revoked. These proceedings were taken, and citation was issued, pursuant to sections 2832, 2833, and -2834 of the Code of Civil Procedure, which are a part of chapter 18 of that statute. The citations were served upon all the parties therein named, and such proceedings were thereupon had that the guardians were removed, and were ordered to account. An account was filled by Semcken, as guardian, the accuracy of which was contested, and it was referred to a referee to take and state the accounts. As the result of the hearing it was found that there was in the hands of Semcken, as guardian, $613.16. Upon the coming in of that report, the surrogate made his decree, requiring Semcken to pay over to the plaintiff here the sum of $613.16, and, in addition, the sum of $344 costs, amounting, in all, to $957.16. This decree was properly entered, and an execution issued upon it, which was returned unsatisfied, and thereupon this action was brought against the sureties, and upon the trial it resulted in a recovery for the amount claimed.

The sureties object, in the first place, that the surrogate had no jurisdiction to direct an accounting. This objection is not well taken. The proceedings for the removal of these guardians were had under chapter 18 of the Code of Civil Procedure. By section 2603 of the Code, which is in chapter 18, it is enacted that, upon the entry of the decree revoking letters issued to a guardian, as prescribed in chapter 18, the decree may, in the discretion of the surrogate, require him to account for all money or other property received by him, and to pay and deliver over all money to his successor in office. This is just what the surrogate did, and he was authorized to do it by this section.

It is objected, in the second place, that the sureties were not liable for the costs included in the decree. These costs were properly granted by the surrogate, under the authority given to him by sections 2557 and 2558 of the Code. They are awarded to the successful party, to compensate him for the expenses necessarily incurred by him in asserting 'his right against the guardian: That bond makes the sureties liable whenever guardians shall fail to pay over any sum of money which the court has authority to require him to pay in any proceeding which the court has power to entertain against him. The costs became an inherent part of the decree against the guardian, and the sureties were as much liable for that as for any other money which he was adjudged to pay. In Douglass v. Ferris, 138 N. Y. 192, 52 S. R. 138, the court say that:

The decree against the guardian constitutes the measure of the liability of the sureties. If the decree by which the accounting is had directs costs to be included in the judgment, then the costs are a part of the debt for which the sureties are liable.”

While this statement was a dictum on the part of the court, yet it lays down the correct rule as we believe. These considerations dispose of the objections taken by the defendant to the form of the decree.

Exception is taken to some of the rulings of the surrogate ¿luring the trial. We have examined those rulings, and we .are satisfied that they are not incorrect. There is no doubt that the amount which was adjudged by the surrogate to be in the hands of Semcken was correct. Indeed, that is conceded by the offer of judgment.

The judgment and order appealed from must be affirmed, with costs.

All concur.


author: BARRETT, J.

text:
    In the Matter of Spaulding’s Estate; In the Matter of the Judicial Settlement of the Accounts of Horace E. Garth et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    .Trustees—Commissions in two capacities.
    Trustees are entitled to commissions in addition to those received as executors, where the will naming them as executors also appointed them trustees of certain funds which they had to separate from the estate, and use according to the terms of the trust.
    Appeal from surrogate’s court, New York County.
    Judicial settlement of the accounts of Horace E. Carth and ■others, as sole surviving trustees under the will of Henry F. Spaulding, deceased. From a decree settling the accounts Thomas H. Spaulding, a legatee, appeals.
    The first clause of the will of Henry E. Spaulding appoints .his executors. The second, third, fourth, and fifth give certain legacies to specified individuals. The sixth clause gives,, devises, and bequeaths to his executors all the rest, residue, and remainder of his estate, both real and personal, in trust to pay his wife, Kate B. Spaulding, the sum of $10,000 annually during her life. The principal sum used to produce this income is given to his children, Thomas Hunt Spaulding and Margaret Thompson Schley, upon the death of his wife, and that portion of his residuary estate not necessary for such purpose is given to said children at .his death.
    The opinion of Surrogate FITZGERALD is as follows:
    Estate of Henry F. Spaulding. The accountants previously accounted as executors, and in the decree settling their accounts they were awarded commissions for receiving and paying out the funds respecting which they are now accounting as-trustees, and as to the reception and disbursement of which they claim additional commissions. This claim is contested,, and to sustain the claim it must appear that the testator conferred upon his executors the function of trustees as well as those of executors, and contemplated such a separation of these functions as under the law would entitle the accountants to double commissions or compensation in both of their capacities of executors and trustees. By his will the testator directed the payment of his debts, funeral and testamentary expenses, certain general and specific legacies, and gave to his widow the use during life of the residence, which was leasehold property.' The residue of his estate he devised and bequeathed to his executors in trust, to set apart and invest a sum sufficient to produce a clear net annual income of $10,000, and to pay such income semi-annually or quarterly to his widoiv during her life ; and to set apart and invest an additional sufficient sum, and to pay from the income thereof the ground rent and other specified charges affecting the leasehold given for her use.- After providing the funds mentioned, the executors were directed to divide the rest of -his residuary estate among his-two children, with disposition over to their issue in the event-of their predeceasing his widow. Upon her death the funds mentioned were to be similarly disposed of. The will appointed three executors, who were empowered to sell the-property not specifically bequeathed, and retain for “ any of the trusts created by the will ” certain specified securities, if owned by the testator at the time of his death. By a codicil a fourth executor was appointed “ to become one of the executors of and trustees ” under the will and the appointment of the others “ as executors and trustees ” was ratified and confirmed.
    The decree above referred to, and which was entered upon the previous accounting, which purported to be exclusively that of executors, ordered the distribution among the children of the testator of the residuary estate not necessary for providing the funds for the benefit of the widow and for supplying an annuity bequeathed for another purpose. To produce this annuity, the executors were directed to retain a sufficient sum for the purpose. With reference to the funds for the benefit of the widow, the decree adjudged and directed that “ the executors transfer and deliver to themselves, as trustees under the will,” certain specified securities, “ in trust ” for the purpose of meeting the charges affecting the leasehold property, and the remainder of the estate in their hands in trust to supply the annuity. The foregoing statement seems to me to make out a clear case for the allowance of the commissions in dispute. The direction to the executors, who in one of the codicils are appointed trustees and to whom was given the residuary estate, to separate from the body of the same the funds to yield the income to pay the annuity to the'widow, and the charges affecting the leasehold, and the provisions for the appropriation for “ the trusts created by the will ” of the securities designated, are a clear manifestation of the intention of the testator to constitute separate and distinct trusts as to the funds specified to be held and managed by the accountants solely in their character and capacity of trustees. The severance from the rest of the estate of the funds necessary for the trusts, and of the relation of the executors to such funds, and the consequent assumption of the possession "and administration thereof by the trustees, were obviously intended to take place upon the ascertainment of the adequacy of the residuary estate to supply the same, and their separation from such estate. Such separation was, in fact, made in pursuance of the decree which was made upon the executors’ accounting, and which determined the amount of the residuary estate and directed its disposition. That clecree'recognized, and, in effect, determined, the intention of the testator to be such as I have previously indicated. It terminated the connection of their executors with the funds in question, and directed the distribution and transfer to the trustees, to be held and managed by them as such. Under these circumstances the right of the accountants to commissions as trustees is undoubted. In re Mason, 98 N. Y. 534; In re Jackson, 32 Hun, 200 ; In re Willets, 112 N. Y. 296, 20 S. R. 735; Laytin v. Davidson, 95 N. Y. 263 ; Johnson v. Lawrence,.Id. 154, 165 ; Wildey v. Robinson, 85 Hun, 362, 66 S. R. 423; Hulburt v. Durant, 88 N. Y. 121.
    William J. Moran, for appellant; John Notman, for accounting trustees, respondents; David McClure, for executors of Kate B. Spaulding, respondents.
   BARRETT, J.

—We concur in the main conclusion arrived at by the learned surrogate. The duties imposed upon the executors by the sixth clause of Mr. Spaulding’s will were not executorial. They were distinctively trust duties. The executorial duties ended when the directions contained in the first five clauses of the will Avere fully executed. Thereupon the rest, residue, and remainder of the estate came into being. Upon that rest, residue, and remainder the trust then for the first time operated. It did not operate during the period of executorial duty, for the fulfillment of that duty was requisite to the ascertainment of the residue. This is not affected by the fact that the income from the trust fund was payable from the date of the testator’s death. The creation of the trust was one thing. The period over which its operation and execution should extend was quite another.

It is also contended that tne trust duty might have been imposed upon the executorial office,—might, in fact, have been declared to be an executorial duty. The answer is that the testator .has not so provided, that he has created a distinct trust, that he has specified the executorial duty, and that he has devised the residue, after the fulfillment of that duty, upon this distinct trust. Nor is the question affected by the permission given to retain the original securities which came into the hands of the executors. That was a mere matter of detail, When the executorial duty was completed without their use, they became a part of the residuary estate. They then became a part of the trust estate. The turning over of these securities from the one account to the other may have been, as matter of fact, a mere formality. But the right to commissions under the statute depends upon fixed rules, not upon the extent of the trustee’s labor. These rules are not affected. by such illustrative incidents as the appellant suggests.

We may add that the creation of the trust estate was not only effected by the terms of the will, but was judicially recognized by the surrogate’s decree of 1894. This decree, acting upon the avowedly separate functions of the executors and trustees, directs the executors to transfer to themselves, as trustees, the corpus of the trust estate, namely, the residue found in their hands upon the executorial accounting. This was an express adjudication, in a proceeding to which the appellant was a party.

The question as to Mrs. Spaulding’s right to a share of the commissions need not be specially considered, as the appellant was not préjudiced by its allowance to her executors. Mrs. Spaulding’s co-trustees have not complained. If the surrogate has allowed her representatives a share of these commissions to which her co-trustees were entitled, they alone can complain. The appellant is not harmed so long as but three full commissions in all have been allowed.

The decree of the surrogate should be affirmed, with costs.

• BUMSEY, O’BBIEN, and INGBAHAM, JJ., concur. VAN BBUNT, P. J., not voting.


author: BROWN, P. J.

text:
    Adolph Simis v. Andrew Wissel et al.

    (Supreme Court, Appellate Division, Second Department.
    Nov. 20,1896.)
    Statute of frauds—Waiver.
    The statute of frauds is waived when it is not pleaded, and no objection is raised on the trial to oral proof of an agreement; and a motion, at the close of plaintiff’s testimony, to amend the answer by-pleading the statue, is properly denied.
    Appeal from trial term, Kings County.
    Action by Adolph Simis, Jr., against Andrew Wissel and Edmund Wilson, to recover $4,300 for breach of contract. From a judgment entered oii a verdict in favor of plaintiff for $1,700, and from an order denying a motion for a new trial, defendants appeal.
    S. S. Whitehouse, for appellants; Edward M. Grout, for respondent.
   BROWN, P. J.

—This action was brought in - December,. 1892, to recover a sum which, it was alleged, the defendant had agreed to pay the plaintiff for legal services to be rendered during the years 1892 and 1893, and also to recover for the breach of an alleged contract of employment for the term of five years. The plaintiff testified that prior to January, 1892, the clefendants were contractors with the city of Brooklyn for the removal of dead animals and offal. In December, 1891, such contract was about expiring, and the defendants, desiring-to procure an agreement more favorable to them than the prior one, agreed with the plaintiff that, if he would aid them in procuring such a contract, and render to them all the necessary legal services during the term thereof, they would pay him the sum of $1,000 per year during the life of the contract. This-agreement was not in writing, but was entirely oral.

We are of the opinion that the agreement was within the statute of frauds. While it is true that, in the form in which the plaintiff alleged it and testified to it, it was not an agree- - ment which by its terms was not to be performed within one • year, it clearly appears from the testimony that such was its ■ character. By the charter of the city of Brooklyn (chapter 583, tit. 12, § 7, Laws 1888) such a contract as was made with the defendants was authorized for a term not to exceed five years. The contract which, in December, 1891, was about expiring, had been for that period, and the city had advertised for bids for a new contract. The defendant Wissel testified that the advertisement called for bids to do the work for five-years from January 1, 1892. The defendants made separate bids in response to the advertisement, and both were prepared for them by the plaintiff. The plaintiff testified that he prepared a bid for Mr. Wissel “ to do the work for' five years from January 1, 1892,” and that he also “prepared a bid for Mr.. Wilson about the same time.” He further testified that his conversation with the defendant Wissel, in December, 1891, at which the contract sued upon was made, was “ in reference to the contract for the ensuing five years.” After the bid was accepted, a form of contract was prepared by the plaintiff for a term of five years, and the one finally executed was expressed to be for the years 1892 to 1896, inclusive. This testimony permits of no conclusion except that the contract sued upon was for tjie period of five years. In order to fall within the statute, it was not essential that it should have expressed numerically the number of years during which it was to run. If it expressed a period that was, by a reference to any other fact, made definite and certain, such fact, to which reference was so made, became incorporated into the agreement, and a part thereof. When, therefore, the parties made an agreement which by its terms was to be performed during the life of the contract between the defendants and the city, it became by its terms an agreement for the period of five years, with precisely the same force as if that term had been written into it. The statute of frauds was, however, not pleaded as a defense, and no objection was taken to the proof of the agreement by oral testimony; and under these circumstances the defense that the contract was void could not be made available at the trial. Crane v. Powell, 139 N. Y. 379 ; 54 S. R. 659.

The motion to dismiss the complaint, made by the defendants at the close of the plaintiff’s testimony, presented the question whether there was any evidence tending to show that a contract was made, but nothing else. Crane v. Powell, 139 N. Y. 384, 54 S. R. 659. Upon the denial of the motion to dismiss the complaint, defendants moved to amend their answer by pleading that the contract was void by the statute of frauds, and to the denial of this motion the defendants excepted. We are of the opinion that the ruling of the court upon this motion was proper. The defendants must have known of this defense when their answer was prepared. They Enow, of course, that the contract that they had with the city was for five years, and they must have Enown that an agreement with the plaintiff for the life of that contract was also for the term of five years. Although they had not pleaded the statute, it was still possible for them to have raised the question on the trial that the contract was void, by objecting to the oral testimony given' to establish it. But,1 when they failed to object to that testimony, and permitted the plaintiff to prove his agreement by oral evidence, we think they waived the provisions of the statute, and that the court properly denied the motion to amend the answer. It is also doubtful whether the court had power, under section 723 of the Civil Code, to grant the motion, as to have done so would have changed substantially the defense.

The judgment and order must be affirmed, with costs.

All concur.


text:
    Katie MacMahon v. Brooklyn & N. Y. Ferry Co.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    1. Negligence—Collision with ferryboat.
    A ferry company is liable when a collision, which the pilot of its ferryboat could have avoided by reasonable care, causes the death of one of the crew of a launch, though the ferryboat was in her usual course, and the crew of the launch did not observe the rules of navigation.
    2. Appeal—Harmless error.
    It is not error prejudicial to defendant for the court to test the eyesight of the pilot in charge of defendant’s steamer when an accident occurred, where such pilot is introduced by defendant, and testifies as to his eyesight, since his eyesight at the time of the trial is immaterial, unless as good as when the accident occurred.
    Appeal from trial term, Kings County.
    Action by Katie J. MacMahon, as administratrix of John Joseph MacMahon, deceased, against the Brooklyn & New York Ferry Company, to recover damages for the death of' plaintiff’s intestate. From a judgment for $21,000 damages, $934.50 interest thereon, and $1,238.15 costs, entered on a. verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.
    James & Thomas H. Troy, for appellant; Charles J. Patterson, for respondent.
   BRADLEY, J.

-—On the evening of July 21, 1895, the plaintiff’s intestate, with John Williamson and Charles L. McCann, was in a steam launch, with which the defendant’s ferryboat collided, in the East river, and his death by drowning resulted from the collision. The plaintiff charges- that the accident-was attributable solely to the negligence of the defendant. Much, and some conflicting, evidence was introduced as to the circumstances and attending conditions under which it occurred, hearing upon the issues presented for trial. Those three gentlemen embarked in the launch at the Wallabout Basin, and proceeded up the Brooklyn side of East river to a slip at the-foot of South Second street, passing several ferry slips, including that of the Twenty-Third Street Ferry. After remaining there for a time they proceeded to return. There was a strong flood tide, which retarded the progress of the launch, so that it proceeded very slowly. It was a small boat, evidently having weak motive power. When it came near to the Twenty-Third Street Ferry slip (its then particular locality does not very clearly appear), Williamson testified that he saw the ferryboat distant 450 feet, coming down the river, headed towards the Brooklyn shore, and at some point below that slip, until after it came within 200 feet of the launch ; that when at that distance the launch whistle was blown, and blown repeatedly. The course of the ferryboat very shortly after Avas turned in the direction of the Twenty-Third Street Ferry slip. The launch Avas in front of it, and thereupon Williamson ineffectually attempted to reverse the engine, and go Avith the tide out of the Avay. Failing in that, he directed the use of the hand oars, which Avere brought into requisition for a momentary or brief space of time, Avhen the ferryboat came on to the launch. Williamson and McCann Avere taken aboard the ferryboat.

An important fact, bearing upon the question of the alleged negligence of the defendant, Avas Avh.eth.er or not it Avas daylight at the time the ferryboat approached the place of the occurrence. There Avas a marked conflict in the testimony of witnesses on that subject. That of the pilot on the ferryboat Avas to the effect that, although he heard the whistle, he did ■ not see the launch until he came within 50 feet of it, and that up to that time he had seen nothing to deter him from proceeding into the slip by reason of the darkness; that, if he had seen it at 200 feet from the slip, the course of the ferryboat Avas such that he could have avoided the collision. Other Avitnesses testified that it was cloudy, and had then become dark, or partially dark, so as to render the view of objects at much distance dependent upon artificial light. And in support of this fact evidence on the part of the defense was given tending to prove that it was 8 o’clock, and after. The sun set on that day at 26 minutes past 1 o’clock. On the part of the plaintiff evidence was giAmn to the effect that, at the time of the accident, it was not later than half-past 7 o’clock and that it was daylight—“ perfectly clear daylight.” Some of the passengers on the ferryboat testified that the launch Avas plainly visible, and seen by them Avhen the ferryboat Avas more than 200 feet from it; and some others, who Avere on the Brooklyn shore, and much further than that from the launch, testified, to the same effect. In view of the evidence, the question whether the pilot of the ferryboat ought to have seen the launch when its whistle Avas first blowji, if not before, Avas one of fact for the jury, as Avas also that of negligence of the defendant, in consequence of its failure or omission to observe the launch, and the danger of its occupants, if the ferryboat proceeded into the slip, and to avoid the collision, and the consequences which followed.

It is urged Avith much force by the counsel for the defendant that the plaintiff failed to prov'e that the death of the plaintiff’s intestate was not attributable to the negligence of the persons on • the launch, or of some of them, or that such negligence did not contribute to the accident. It may be that they Avere so situated, Avhen the ferryboat was seen 450 feet away, that if they had supposed that it was destined for the slip which it entered they may have avoided it, although there is some evidence which may be construed to import the contrary. But it may now be assumed, upon the evidence, that they did not know that the ferryboat Avas on its way to that slip, and that they were led to suppose she was not because her bow was headed towards some place below that slip on the Brooklyn side of the river. The pilot says the course of the boat Avas not in line with the slip, but was towards the Navy Yard below, until Avithin 200 feet of the slip, and then turned to port towards it, Avhich was his usual method of doing it, and he then saw nothing in the Avay. They had no lantern on the launch. There Avas one on her when they started up the river, but it had been lost. None, hoAvever, Avas necessary at the time in question, if it was then clear daylight. Those persons in the launch were not expert navigates. Neither of them had before had much experience in running a boat. Williamson was an engineer, accustomed to running engines. The engine and sideAvheel propellers of the launch were somewhat peculiar. It was a new design of his oavu. He, prior to this time, had run the boat some on the river, but not in that locality. This was a pleasure trip. He ran the engine, and MacIVIahon steered, with the tiller, at the stern. McCann occupied a seat in the bow.

It is said that they had failed to observe the requirements of the federal statutes relating to navigation, in respect to licensed skill requisite, and in other respects. Those are matters entitled to consideration, but default in that regard does not necessarily, under all circumstances, impute to a party contributory negligence, and deny to him relief for injury resulting from the negligence of another. Nor will a Aressel be excused,-if it fail to adopt reasonable precautionary means to avoid collision with another, although, by the rules of navigation, she would otherwise have the right to keep her course. If, therefore, by the exercise of reasonable care, the running against the launch may have been avoided by the pilot of the ferryboat, the defendant Avas not relieved from liability by the mere fact that those rules were not observed in the means or method of navigation of the launch, although the former was in her usual course, and as she otherwise would have been entitled to run. The Sunnyside, 91 U. S. 208; Cooper v. Transportation Co., 75 N. Y. 116. It is true that those in the launch knew that ferryboats were going from and coming into the slips on the Brooklyn side every few minutes, and, as a boat had recently gone out of the Twenty-third Street Ferry slip they had reason to suppose that another would shortly return to it; and, when they got outside the pier, to go down the river, they must have observed that the tide Avas so strong that it was difficult for a small boat to run against it,—at all events, Avith much headway. If dark, or less than tAvilight, it would seem, without any artificial light on the boat, to have been quite hazardous for them to proceed Avith it. But, assuming, as Ave may, upon the findings of the jury, that it Avas daylight, they Avere entitled, in addition to their oavu efforts, to the reasonable care and precaution of the ferryboat pilots for protection against danger from them. When the ferryboat veered to port, and thus changed its course to proceed into the slip, the launch was in front of it, and the reversal of her engine not being available to push her back with the tide, she became apparently helpless for her own protection against the approaching ferryboat. At least, such conclusion was permitted by the evidence. It may have been by the want of reasonable precaution that the launch got into the position and place in .which it was at that time, and those having her in charge may not have exercised the best judgment in the attempt to get her away from the course to the slip after the ferryboat had turned in that direction; but the fault in navigation of the launch,'which placed her in that relative position did not, nor did such error in judgment necessarily, render the accident attributable to the contributory negligence of those in her. The situation may be viewed as it existed just before and at the time the ferryboat turned its course to the slip. Her pilot had no right to run into the launch, if he saw and could reasonably have avoided her ; nor was the defendant necessarily, by the circumstances before mentioned, relieved from the charge that its negligence was solely the1 cause of the calamity, and from liability as the consequence, if its pilot, by the exercise of reasonable care, would have seen and avoided the collision which resulted in the death of the plaintiff’s intestate. Austin v. Steamboat Co., 43 N. Y. 73 ; Hoffman v. Ferry Co., 47 N. Y. 176, 58 N. Y. 385 ; Blanchard v. Steamboat Co., 59 N. Y. 292; Harris v. Uebelhoer, 75 N. Y. 169; Minerly v. Ferry Co., 56 Hun, 113 ; 29 S. R. 960.

The examination of the record leads to the- conclusion that the jury were permitted to find that the facts essential to the plaintiff’s recovery had the súpport of the weight of the evidence, and therefore the motion to dismiss the complaint was properly denied.

The defendant’s counsel complains of inquiries made by the court of the pilot of the ferryboat, while he was on the stand as a witness, to test his power of vision. This witness, having stated that he was 61 years of age, and could at the time of the trial see “ all over,” and further than some young men,” his attention was called by the court to some printed objects and figures in the court room, and inquiries made of him . to test his eyesight, to which no objection was taken. His ability or inability to see objects at that time, nine months after tho occurrence in question,was not a relevant fact, unless his eyesight was as good at the later as at the other time. The import of the testimony of the witness which led to this further inquiry by the court was that his power of vision was unimpaired and remarkably good at the time he was testifying. We think there was no error to the prejudice of the defendant in the examination of the witness by the justice presiding at the trial.

The case seems to have been fairly submitted to the jury, and none of the exceptions to charge as made were well taken. The verdict was quite large in amount, but, in view of the age, character, habits, and business capacity of the deceased, as they appeared by the evidence to have been, of the age of his children, and of the income derived from his services and business occupation, it cannot well be seen that the damages were excessive, or more than the jury were warranted in finding that his widow and next of kin, who were dependent upon him for their support and education, had sustained pecuniarily by the death of the plaintiff’s intestate.

The judgment and order should be affirmed.

All concur.


author: BARRETT, J. VAN BRUNT, P. J.

text:
    Francis T. Baker v. Sarah F. Georgi et al.

    (Supreme Court, Appellate Division, First Department,
    Nov. 20, 1896.)
    1. Fraudulent conveyances—Husband and wife.
    A conveyance to a wife by a husband in failing circumstances is not absolutely void as against creditors, but is valid as a mortgage, where the facts were that she had borrowed money for him on her property on condition that he would make the conveyance as security.
    2. Same—Evidence .
    The fact that a conveyance to his wife, by a husband in embarrassed circumstances, remained unrecorded for six months, and until judgments had been entered against him, is not sufficient evidence to prove it fraudulent, where it was made pursuant to a promise to secure a loan obtained on a mortgage of the wife’s property, and the only evidence that it’was not executed when it purported to have been was that of the commissioner before whom it had been acknowledged. Van Brunt, P. J., and Eumsey, J., dissenting.
    Appeal from special term, New York County.
    Action by Francis T. Baker against Sarah F. Georgi, impleaded with others, to foreclose a mortgage. From so much of the judgment as decrees that a conveyance made by defendant Otto H. Georgi to defendant Sarah F. Georgi is void as to the grantor’s creditors, and also from so much of the judgment as decrees that certain lands of Sarah F. Georgi are primarily liable to be sold in satisfaction of plaintiff’s mortgage, said Sarah F. Georgi appeals.
    The action was brought for the foreclosure of a mortgage on property fronting on the westerly side of 3d avenue, in the City of New York, and south on 163d street. The most southerly portion of the premises, having a frontage of about 72 feet, was owned by the defendant Otto II. Georgi prior to July 16,1890. On January 6,1891, there was recorded a deed of the premises bysaid Georgi to his wife, the appellant Sarah F. Georgi; said conveyance being dated July 16, 1890, and the acknowledgment clause reciting that it was acknowledged on this day. This portion of the mortgaged premises is spoken of as the “ appellant’s second parcel.” After the commencement of the action, it was referred to a referee to hear and determine all the issues arising between the-parties. lie decided this conveyance to be voicl as against certain defendants, judgment- creditors of Otto H. Georgi, and the other creditors of said Georgi; that the liens and rights of said defendants were not impaired or affected by said conveyance; and that they were entitled to be paid in full out of the proceeds of sale before the appellant received anything. From this part of the judgment entered upon the referee’s report, the defendant Sarah F. Georgi appeals.
    John Aitken, for appellant; T. M. Tyng, for respondents the receiver and judgment creditors of Otto H. Georgi; Edward Russell, for respondents, Lisette Georgi and Emma Georgi.
   BARRETT, J.

—The only branch of the appeal which we need consider is that relating to the validity of the conveyance of the appellant’s second parcel. That portion of the judgment relating to the order of sale of the different parcels seems to have been acquiesced in by the appellant, since no ground of error with regard to it has been raised on the argument, or presented in her brief.

The judgment below decides the conveyance of July 16,1890, to be absolutely void as against the creditors of Otto H. Georgi. There are certain undisputed facts bearing upon that conclusion which should be noted. It is, for instance, undisputed that the appellant on July 15, 1890, mortgaged property belonging to her for $6,000, and lent the money to her husband. The appellant and her husband testify, without contradiction, that she declined to let him have the money unless he gave her a deed of this second parcel, and that the loan was made upon his promise to do so. At the time the loaji xvas made, there xvere two mortgages on the property. The first xvas the plaintiff’s, for $4,000. It covered other property than the second parcel, but that parcel xvas nearly 70 per cent, of the xvhole. The second mortgage xvas one for $25,000, given to indemnify one Ilupfel against liability as surety upon a bond of Otto H. Georgi’s. It ultimately transpired that Hupfel xvas not held liable, and thus the mortgage did not, in the end, detract from the value of the equity. This, hoxvever, xvas not known until Rovember 29, 1890. Upon the other hand, Murphy, the commissioner xvho took the aclcnoxvledgment, and upon xvhose testimony the case for the respondents mainly rests, testified that the deed xvas not executed until the early part of December. He is contradicted, hoxvever, by Georgi, xvho says that the execution xvas only a xveek or two after the date of the deed. Georgi seems to be a much more trustworthy xvitness than Murphy. Upon Murphy’s oxvn showing as to his position and conduct in the matter, but little reliance can be placed upon his testimony. We should thus hax'e great difficulty in affirming the judgment, and finding that the conveyance xvas fraudulent, even if it xvere necessary to axvard the xvhole of the proceeds of sale either-to the creditors, on the one hand, or the appellant, on the other. We do not think, however, that the agreement of the appellant was to purchase the second parcel outright for the sum of $6,000. The appellant simply testifies :

“ I mortgaged that lot for $6,000, Avith the understanding that he was to deed me the remaining land.”

Gfeorgi says:

“ I was very short of money in July, 1890. I tried to raise-money then, but couldn’t get any. I asked her, Avould she mortgage that lot I had conveyed to her,—I could get the money from Mr. Hupfel on it,—and she said,£ Yes,’ if I Avould give her a deed for the balance of the property that Mr. Hupfel Avas holding that indemnity bond against. She did not care to let me have the money Avithout the deed. I said, ‘Yes,’ and so she mortgaged that lot for $6,000. I received the money paid on that mortgage, and used it in paying for material and labor on the contract at Nbav Rochelle.”

It seems quite plain from the foregoing, which is substantially all the testimony on the point, that the conveyance Avas given as security merely. The sole occasion and cause of the deed was Gfeorgi’s need of a loan. The appellant’s unwillingness at first Avas the natural unwillingness of one person to-lend money to another where there is any doubt about the-latter’s ability to repay. The promise of the deed solved this difficulty, and the loan was thereupon made. The idea of a transfer seems never to have before occurred to either husband or xvife, and, when the arrangement therefor is considered in connection Avith the need xvhich gave rise to and the circumstances Avhich attended it, there can be no doubt that it Avas intended as security. A sale implies a balancing of the value of the property, on the one hand, and the consideration, on the other. Nothing of the kind appears here. The promise to-give the appellant a deed was made at a time xvhen it was not. even knoxvn hoAV much she Avas to lend. She did not have the-money in hand, but was obliged to raise it by mortgage on other property belonging to her ? She got $6,000, but there is. nothing to show that this was the sum agreed upon. On the.contrary, it appears that G-eorgi Avas anxious for as much money as he could get, and that the appellant was willing to-lend him all she could raise on her other property. Real estaféis not usually conveyed by one party to another for such an indefinite consideration as this. What Georgi obtained was a loan, and what he gave was security for it. There is no fact, in the case from which it can be reasonably inferred that the-deed xvas given in payment of the loan. Where it appears, that an agreement to convey real property is occasioned solely by the solicitation of a loan by the grantor, and there are no^ facts showing that the essential nature of the transaction Avas afterwards altered from that of a loan, but, on the other hand,, circumstances tending to show the contrary, the presumption is that the conveyance Avas intended as security merely, and it. will be held to be a mortgage.

The result reached is not affected by the form of the appellant’s answer. In her pleadings she simply sets out-the fact of the conveyance to her, and claims, as a legal consequence, to-be entitled to the whole of the proceeds. In stating the result believed to follow from the facts, she erred. If, however, the pleading hould properly be construed as alleging ownership in fee, the evidence adduced at the trial, and not the pleading, must control. A party may, in his pleading, and often does, allege a state of things more favorable to himself than the proofs at the trial warrant. But the latter are what determine the judgment to be rendered.

We think that the undisputed evidence shows that the conveyance of July 16, 1890, was given merely as security for the loan of the appellant; and the judgment appealed from should be reversed, and a rehearing ordered, with costs to abide the event, unless the respondents, the receiver and judgment creditors of Otto H. Georgi stipulate to modify the judgment so as to provide that the appellant is entitled to be paid out of the proceeds of the second parcel the sum of $6,000, and interest from July 15, 1890, next after the payment of the plaintiff’s mortgage, and the necessary expenses of foreclosure charged by the judgment against this parcel. In case this stipulation is given within 10 days, the judgment as thus modified will be affirmed, with costs to the parties represented upon this appeal,, payable out of'the property.

O’BRIEN and INGRAHAM, JJ., concur.

VAN BRUNT, P. J.

—This action was brought to foreclose a mortgage of $4,000 upon certain real property upon the westerly side of 3d avenue, between 162d and 163d streets, in the city of New York. The plot covered by the mortgage had a frontage of 109 feet on the westerly side of 3d avenue. Of this frontage, the most northerly 12 feet was owned by the infant defendant Lisette Georgi, in which 12 feet her mother, the defendant Emma Georgi, had vested dower interest. The adjoining 25 feet had been conveyed to the appellant by deed dated June 24, 1889, executed by her husband, the defendant Otto II. Georgi, and recorded November 27,1889 ; and the remaining 72 feet of said frontage had been conveyed to appellant, by her said husband, by deed dated July 16,1890, recorded January 6, 1891. Various parties were made defendants, as judgment creditors of said Otto H. Georgi, many of whose judgments were' entered prior to the 6tli of January, 1891, the date of the record of the deed last above mentioned, but subsequent to the date of the deed July 16,1890. The defendant Sarah E. Georgi, by her answer, claimed ownership of the land conveyed to her by her husband ; stating an alleged consideration for the conveyance, and asking affirmative relief against her co-defendants, that her title thereto be judicially established against all claims of her co-defendants, and also asking that the mortgage debt be apportioned, as between the several owners of the mortgaged property, and that she be allowed to redeem upon payment pro rata of the mortgage debt. This answer was served upon all of her co-defendants, as well as upon the plaintiff, and the court ordered a reference to hear and determine all the issues arising in the action. Answers were put in by some of the other defendants, but were not served upon any of the co-defendants. The action being tried before a referee, the referee found that the conveyance of the first parcel mentioned by Otto H. Georgi to his wife, Sarah F. Georgi, was valid as against the creditors of Georgi," but that the conveyance second above mentioned was made and received with intent to hinder, delay, and defraud the creditors of Otto H. Georgi, and was fraudulent as against them. The referee further reported that the portion of the premises conveyed to Sarah F. Georgi by deed dated July 16, 1890, •should be first sold, under the judgment of foreclosure and sale, to pay the plaintiff’s debt, and the claims of the judgment creditors of Otto H. Georgi, and that, if the sale of this parcel was insufficient to pay the amount of the mortgage debt, then that the second parcel should be sold, and, if the sale of the two parcels should not produce sufficient to pay the mortgage debt of the plaintiff, with interest, then that the portion belonging to the defendant Lisette Georgi should be sold, and that if the sale of the three parcels should not be sufficient, then that the balance of the mortgaged premises should be ■sold. A decree was entered directing a sale of certain of the premises, and adjudging the conveyance of the premises described in the deed of 16th íjuly, Í890, to be fraudulent and void as against the creditors of Otto II. Georgi. And from so much of the judgment as determines that the lands conveyed to appellant are primarily liable for the payment of the mortgage debts, without contribution by the owners.of the other mortgaged premises, and from that part of the judgment which adjuclges that the deed of July 16, 1890, from Otto II. Georgi to the appellant, ivas made with fraudulent intent, this appeal was taken.

The appellant’s .counsel neither upon the argument nor in his brief points out any ground upon which he .claims that the determination of the judgment that the lands conveyed to the appellant are primarily liable in payment of the entire mortgage debt is erroneous; and as the principle of the inverse order of alienation has been applied, which is well recognized, there seems to be no ground for interference with the decree in this respect. He, however, insists that the evidence before the referee did not justify him in coming to the conclusion that the deed of July 16, 1890, was fraudulent and void as against the creditors of Georgi; that a full and adequate consideration was paid by Mrs. Georgi for the premises in question; and that the mere fact that the deed was- not. recorded until after the entry of the judgments did not justify any conclusion that it was fraudulently withheld from the record. In respect to the question of consideration, that depends entirely upon the question as to how much of an incumbrance the mortgage of §25,000 given to secure the surety of Otto II. Georgi upon his -contract could be considered to be. As it turned out, nothing whatever became due upon this mortgage and premises, which the evidence shows were worth about $25,000 when conveyed to Mrs. Georgi for less than one-half their value. It is true that this mortgage was outstanding, but the liability upon it had not been liquidated. It was not certain that there would be any liability upon it at all; it was not expected that there would be; and there seems to have been an inadequacy of consideration. That this conveyance was made by Otto H. Georgi for the purpose of placing this property out of the' reach of his creditors cannot be disputed, upon the evidence, and the only question is whether his wife is to be considered a bona fide purchaser for a valuable consideration. The evidence in regard . to the execution of this deed seems to justify the conclusion of the referee that it was not acknowledged until early in December, instead of on 16th of July, as the certificate states, or in August, as claimed by the defendant Otto II. Georgi. The circumstances testified to by the witness Murphy and the witness Mohr, and the reasons given by the witness Murphy for being positive that it was certainly after September, show •clearly that there is good foundation for the contention that this conveyance was-executed in view of the judgments which were about being obtained against the grantor, Georgi. It appears that on the 29th of ¡November the indemnity mortgage -of $25,000 was gotten out of the way, and that a short time thereafter the conveyance was made, executed, and delivered. It is undoubtedly true that the action of Murphy, the commissioner of deeds, in certifying that this mortgage was acknowledged in July, when it was taken in December, shows a gross violation of his duty, and the commission of an offense against the law, and naturally causes a court of justice to look at his testimony with considerable suspicion. But, when the testimony of a witness of this character bears internal evidence of verity, it must be received, though not corroborated. But in the case at bar it seems to be singularly well corroborated by the evidence of the witness Mohr. The excuse given by Mrs. Georgi for failure to record this deed for six months after its execution—that she had not the money to pay for the recording of the same, and that she only had it recorded when she found that judgments were being entered against her husband —does not seem worthy of credence. The deed was given to her as an afterthought, in view of the embarrassed circumstances in which her husband found himself after the settlement of ¡November 29, 1890, and not in pursuance of any agreement made at the time the $6,000 loan was made. It is true that the deed might have been given in payment of that debt. But it would not make Mrs. Georgi bona fide holder for a valuable consideration, because it is well settled that that means a present consideration.

Under all the circumstances of the case, we see no reason for interfering with the conclusion of the referee in respect to this matter, and are of opinion that the judgment should be affirmed, with costs, as against the appellant.

RUMSEY, J., concurs.


author: McADAM, J.

text:
    David Stevenson Brewing Co. v. Margaret Culbertson.
    (Supreme Court, Appellate Term, First Department.
    November 25, 1896.)
    1. Landlord and tenant—What constitutes relation.
    Defendant agreed to purchase a store from plaintiff, on installments. A lease of it, which defendant held from another person, was assigned to plaintiff. A new lease was executed between plaintiff and defendant, and plaintiff executed a bill of sale to defendant.- All this represented one transaction, and defendant paid rent thereafter. Held,. that the parties were landlord and tenant.
    2. Same—Delivery of lease.
    A landlord suing a lessee in possession, for rent, need not prove delivery of the lease, when its execution is conceded.
    Appeal from Eighth district court.
    Summary proceedings by the David Stevenson Brewing-Company against Margaret Culbertson. There was a final order in "favor of petitioner, and defendant appeals.
    Benjamin Patterson, for appellant; L. J. Somerville (W. G. McCrea, of counsel), for respondent.
   McADAM, J.

—This is an appeal from a -final order made-in a summary proceeding, on the petition of the David Stevenson Brewing Company, to disposses the tenant for nonpayment of rent. The facts, as we gather them from the return,, are substantially these: About December 15, 1895, the tenant, went to the office of the brewing company, a corporation, which was the owner of the store and fixtures No. 384 Tenth avenue, this city, and made a contract for the purchase thereof for $3,000 ; $300 to be paid in cash, $200 in indorsed notes, and $2,500 in installments, secured by chattel mortgage. In some manner which does not clearly appear, the tenant held a lease from one Higgins, expiring May 1^ 1896. By the arrangement made, this lease was assigned to the company, and it thereupon executed to the tenant a lease, ivlierein it, as lessor, demised unto the tenant the store in question for the term of 3 years and 4-J- months, from December 15, 1895, at the annual rent of $1,400, payable in equal monthly payments, in advance. The Higgins lease is not annexed to the return; but the assignment thereof recites that the lease bears date December 15, 1895, the day on which the transaction was closed ; so that the various documents represent the consummation of one transaction. The lease by the company to the tenant was executed on behalf of the former by its president, and by the tenant personally under seal, and was duly acknowledged. The company thereupon made a bill of sale of the store to the tenant, in conformity with the arrangement; the intention evidently being that,- notwithstanding whatever relations existed before, the tenant should, after December 15, 1895, become the tenant of the company at the rental stated. Pursuant to this agreement, the tenant’s brother, on her behalf, paid the January rent to the collector of the company, and took a receipt therefor in her name. The rent for February, March, and April was not paid after demand therefor, whereupon the proceeding was commenced that culminated in the order appealed from.

These facts clearly established the conventional relation of landlord and tenant between the parties, and authorized the landlord to invoke the aid of the statute. Upon the trial, the tenant claimed that no such relation existed; that she was still the tenant of Higgins, and the proceeding ought to have been instituted by him. She conceded that the rent claimed had not been paid to any one, and did not dispute the demand on her therefor by the petitioner, as landlord. How the tenant’s contention could prevail in the face of the lease executed by her, and the fact that she had paid rent to no one, it is difficult to understand. Her counsel claimed that the lease from the petitioner had never been delivered, and it had therefore no efficacy. But there was no satisfactory evidence on that subject produced by the tenant. She did not take'the witness stand, and, having actual possession of the property under the arrangement stated, it is fair to assume that the lease was delivered at the time of its execution. Oneto v. Restano (Cal.), 26 Pac. 788. As it was signed by both parties, it was immaterial whether she had a counterpart or not, so long as she was content to be without one. If the landlord had sued for rent upon a lease under which the tenant had declined to enter into possession, delivery might have been material, as bearing on the question whether the lease became operative or not, and the ‘landlord might have been obliged to prove it. Witthaus v. Starin, 12 Daly, 226 But that is not this case. This was a proceeding to require the. tenant either to pay the rent or surrender the possession she. was enjoying under the lease in question.

There being no substantial defense, the justice properly awarded possession of the premises to the landlord, and the final order must "be affirmed, with costs.