text:
    JOHN L. BREWER, Plaintiff, v. MARY BREWER and CAROLINE A. BREWER, as Executrix of, and Trustee, etc., of GARDNER BREWER, Deceased, Defendants, Appellants, MARY ELIZABETH PENNIMAN, CAROLINE AMORY and ANNA SEARS AMORY, Defendants, Respondents, Impleaded with JOHN S. NOYES and OTHERS.

      'Trust — illegal suspension of pow&r of alienation — not enured by giving •_power of sale— Bcctra allowance — cannot be made twice in the same action.

    A trust which would be otherwise void as suspending the power of alienation for more than two lives in being, is not made valid because of there being given to the trustee power to sell the trust property, the proceeds of such sale remaining subject to the execution of the trust.
    Where an extra allowance is made in a decree for partition and sale, a further extra allowance cannot be made in the same action, on the making of a decree confirming the sale and directing the distribution of the proceeds.
    Appeals by the defendants, Mary Brewer and Caroline Abigail Brewer, as executrix of, and trustee under, the will of Gardner Brewer, deceased, from a decree of distribution made after a sale in an action for partition.
    Gardner Brewer died at Boston, Mass., while residing there, leaving a last will and testament, which was admitted to probate as a will of real and personal estate both in Massachusetts and New York, and his daughter, the appellant, Caroline A. Brewer, is the executrix of, and trustee under, said will,

      Said deceased left Mm surviving Ms widow, who is the appellant, Mary Brewer, and the following, who are his only heirs at law, to wit: Caroline A. Brewer, Ms daughter; Mary E. Penniman, his daughter, and the infant respondents, Caroline Amory and Anna S. Amory, who are his granddaughters and children of his daughter Ellen .Amory, who died during his lifetime.
    At the time of his decease he was seized of 150 undivided four-hundredth parts of certam real estate situate M the city of New York.
    The question in issue arose as to the proper construction of the following articles of the will of the deceased:

      Smmtemih. All the rest, residue and remainder of my property and estate, real and personal, of which I may die seized and possessed, or to which, at the time of my death, I may in any way be entitled at law or in eqmty, not herein otherwise disposed of, charged nevertheless with the payment of the annuity of $50,000 given to my wife as hereinbefore provided, I give, devise and bequeath in three equal shares and proportions, one of which shares is designed for the benefit of my daughter Mary Elizabeth Penniman; one for my daughter Caroline Abigail Brewer; one for the two daughters of my deceased daughter Ellen Amory: That is to say, I give, devise, and bequeath the said residue and remainder of my property and estate, subject always to the charge aforesaid, to my daughter Caroline Abigail Brewer, in trust; to have and to hold the same to her, the said Caroline, her heirs, executors, administrators and assigns, but M special confidence to hold, manage and dispose of the same in the manner upon the trusts and for the purposes following, to wit: To hold and demise the real estate, and to Mvest as hereinafter directed the personal property above bequeathed to her in trust, and the proceeds of any sale or sales which she may make of any of the trust property, to collect and receive the rents, income, dividends, and profits thereof; to keep the real estate sufficiently insured and in tenantable repair; altering, improving, or rebMlding the same or any part thereof, and erecting bmldings on any land which may be unimproved, as she shall deem best, and to appropriate for such repairs, alterations, improvements, rebuilding, and new erections, so much of the said personal property, rents, income, dividends and profits as may, in her opinion, be needful for that purpose; to pay all taxes and assessments, and all charges for insurance on the said trust property; and, after all such charges and expenses, and a reasonable compensation for services, to pay to my said wife the aforesaid annuity during her life, and, subject to said annuity, to pay all the said rents, income, dividends, and profits in three equal shares; that is to say: One share to my daughter, Mary Elizabeth Penniman; one share to the two children of my deceased daughter, Ellen Amory; the other share to be retained by the aforesaid Caroline to her own use. The payments to be made quarterly, or at such other periods of time as the condition of the estate will permit. The power to make alterations and to erect new buildings is designed to protect and to make the property available, and is not to be exercised so as to delay payment of the annuity for my wife, or so as to absorb for any length of time the whole or any large part of the income intended for my two daughters and for the children of my deceased daughter. The income herein provided for my daughter Mary Elizabeth Penniman shall be paid as and for her sole and' separate estate ; the income designed for the benefit of the two children of my deceased daughter, Ellen Amory, shall be retained by my daughter Caroline Abigail Brewer, for the use of the said.two children in the same way and manner as the said Caroline Abigail Brewer is authorized and directed to pay and apply the income of the sum of $100,000 mentioned in the thirteenth article or section of this instrument.

      Eighteenth. Prom and after the decease of either of my daughters, Mary Elizabeth Penniman and Caroline Abigail Brewer, the income which may subsequently and before the final division of said trust-property accrue on the share or portion devised in trust for her benefit, shall from time to time be paid over to and among such person or persons as the said daughter may appoint by her last will and testament, or by any instrument in the nature of a testamentary disposition'; and for want of such testamentary direction, the said income shall be paid to the lawful issue of such daughter in the same manner as may be provided by the law regulating descents. The income intended for the two children of my deceased daughter Ellen to be held and applied in conformity with the provision of the thirteenth article of this instrument.

      Nineteenth. At the death of the last survivor of my wife and daughters who may be living at my death, and not sooner, I order

      and direct that all the residuary trust, property and estate held by my trustee, under the provisions of this my will, shall be divided into so many equal shares that there shall be one share for each of my daughters who may survive me and shall have lawful issue then living, or who, pursuant to the power herein given, shall have made a testamentary disposition of her share of said trust property, and one share for the lawful issue then living of either of my daughters who may have deceased during ’my lifetime, including the issue of my deceased daughter, Ellen Amory; and I do order and direct that the said shares shall severally be disposed of as follows, that is to say: Each and every of my daughters who shall survive me shall have full power and authority by her last will or any testamentary writing by her, subscribed in the presence of three or more witnesses, to direct and appoint to whom one of the aforesaid shares shall be given; but if my said daughters, or either of them, should fail to appoint, then and in such 'case the share of the daughter so failing shall be divided to and among her lawful issue in the same proportions in which they would be entitled if my daughter had died seized of the same in her own right; and the share which may have been set apart for the lawful issue then living of a daughter who may have deceased in my lifetime, including my deceased daughter Ellen Amory, shall be divided to and among such issue in the same proportions in which they would have taken the same if such daughter had died seized thereof in her own right.

      Twentieth. If there shall be no lawful issue of my body living at the decease of the last survivor of my wife and daughters, then it is my will that such of my property and estate as shall remain, excepting so much thereof as may have been disposed of by the appointment of my daughters shall go to my heirs at law.
    ■ The twenty-tbird article of the will authorized the trustee and her successor “ to sell and convey any part or all of the estates, real and personal, constituting the residue aforesaid * * * the pro-
    ceeds of any and every such sale to be held upon the trusts herein established.”
    This real estate was sold under the decree in this action, and the proceeds of the Brewer portion thereof were brought into court to await the further order of the court.
    Thereafter it was referred to William Gr. Choate, Esq., to take proof as to the respective rights of the heirs at law of said deceased and the devisees under his will to said proceeds, and to report the same with his opinion thereon; and said referee reported that as to the land in question said deceased died intestate, and that (his widow having accepted the provision made for her in said will in lieu of dower, and having waived her interest in said land), the said land descended to said heirs at law.
    Exceptions to said report were filed by the appellants; but after hearing upon such exceptions this court, by order at Special Term, bearing date the 6th day of June, 1876, confirmed said report and directed the distribution of said proceeds in accordance therewith. Erom this last-mentioned order an appeal was taken by the defendants Mary Brewer and Caroline A. Brewer, executrix and trustee as aforesaid.
    By the decree of partition of December 24, 1875, directing the sale, certain extra allowances were made to the attorneys of the several parties, and again in the decree of distribution further extra allowances were made to the same attorneys. The latter were objected to on the ground that the power to mate any allowances was exhausted by the granting of them in the decree of December 4,1875.

      Waldo BTutohings, for the appellants.

      H. 8. Anderson and Benjamin G. Wetmore, for the respondents.
   Brady, J.:

There being no doubt that the trust created by the testator was void because it suspended the power of alienation for more than two lives in being, the only question to be determined on this appeal is whether such a trust is legalized and rendered valid by the power coupled with it, authorizing the trustees to sell the trust estate.

This question has not been expressly adjudicated, perhaps, in this State, and may be said to be presented herein for the first time. The argument to sustain it is ingenious, but if it were successful it would validate many trusts that have been declared prohibited and void.

It is based on the proposition that section 14 of the article relating to the creation of estates declares distinctly what is meant by the

suspension of the power of alienation, which is prohibited, namely, such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed,” and that the testator having conferred a valid power of sale, there is a person in being by whom an absolute fee in possession can be conveyed. The answer which seems to meet the question at once, and conclusively, is that the power of sale is possessed by persons in a representative capacity, and is discretionary and limited, because it .is for the purposes of the trust only, or, in other words, to make a change in the character of the trust property for reinvestment, and therefore to continue the trust. The statute clearly means persons having an absolute and unqualified, unconditional fee by inheritance or by purchase, which can be conveyed absolutely, not only with reference to the subject of the conveyance, but to the product of its sale. The chancellor said, in Hawley v. James (5 Paige, 445), “ a mere power to exchange lands, whether such exchange is made directly or by means of a sale and new purchase, is not a power to alien the estate within the interest and meaning of the Revised Statutes on this subject.” The opinion of the learned referee against the proposition is founded upon this theory, and the further point that if the appellants’ doctrine be correct, then by the simple device of a power of sale for the purpose of reinvestment, trust estates can be limited as by the rules of the common law, during any number .of lives, notwithstanding the changes made by the Revised Statutes. If the power of sale was absolute, so that when the trustees sold they could pay over the proceeds to the cestui que trust, there might be some force in the point taken; but such is not the character of the trust here. The right to sell is part and parcel of the trust for the trust itself, and may or may not be exercised during the life of the trust. It is therefore coequal with it and for it. In Belmont v. O'Brien (12 N. Y., 105), Justice Hand, in considering the statute of trusts, said: “ In most of those cases in our courts, where the sixty-third and sixty-fifth sections were said to have rendered property inalienable, the funds, or some part of it, or the income, was to be held in trust for a period not allowed by law, and in such cases a power of sale and exchange, or of conversion for the same purpose, did not remove the objection of inalienability. But if the purpose be lawful, there can be no objection to a power of sale, under the express direction of the original owner and grantor given at the time he creates his trust.”

Justice Denio, in Williams v. Williams (8 N. Y., 525), and Bronson, J., in Handley v. James (16 Wend., 163), as shown by the referee, have expressed themselves to the same effect. These views may be called dicta, but they foreshadow the result of judicial investigation, and on a question of construction are authorities. In McSorley v. Wilson (4 Sand. Oh. [m. p.], 515) we have an adjudication declaring the trusts void, though coupled with the power of sale.

In Amory v. Lord (9 N. Y., 403, 412, 413) Justice Gardner said: In this case the trust which contained a power of sale is void, because it establishes a perpetuity which the law prohibits. The whole estate upon which it was dependent falls within it.” See, also, Field v. Field's Executors (4 Sandf. Ch. [m. p.] 528), where the same result was declared, although the trustees were authorized to sell. It seems to be quite apparent that if the trust be void the property affected by it descends to the heirs at once. (Cases supra; Beam, v. Hockman, 31 Barb., 78.) If, therefore, the trust falls, the incidental relation of the trustees falls with it. The purpose of the trust being illegal, it would follow as a natural sequence that whatever was done by the trustees to perpetuate it would be invalid also, although the courts protect trustees acting in good faith under trusts assumed to be legal. It is not necessary, however, to pursue this subject further. It seems to be beyond doubt that a power of sale, conferred upon trustees, will not sustain a trust otherwise unlawful. The judgment of the Special Term, on this subject, should, therefore, be affirmed; the learned referee having made the proper disposition of the questions involved, but the allowances objected to, except for disbursements and referee’s fees, must be excluded. No costs of this appeal to either party. Order to be settled by Justice Brady.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, allowances objected to excluded, except for disbursements and referee’s fees. No costs of appeal to either party. Order to be settled by Brady, J.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    WILLIAM T. TOOKER and others, Appellants, v. MARKS RINALDO and others, Respondents.

      Voredomre v/nder meclmnia’s lien lam — when reference may he ordered — chay. 379 of 1875.
    In an- action for the foreclosure of a mechanic’s lien, under chapter 379 of 1875, where the owner alleges that he has paid the contractor all that was due him; that hy reason of his failure to perform his contract the owner has been subjected to additional expense, and that he has a right to certain deductions, his right thereto being only determinable by an examination into the details of the work, the items to be examined exceeding 300, held, that the cause was one in which the court might order a reference.
    The provision of the statute that “ the manner and form of instituting and prosecuting any such action to judgment * * * shall be the same as in actions for the foreclosure of mortgages upon real property ” does not prohibit a reference of all the issues.
    Appeal by plaintiffs, sub-contractors, from an order directing a reference, in an action for tbe foreclosure of a mecbanic’s lien.
    Tbe defendant Rinaldo, tbe owner of tbe premises, moved for a reference on tbe pleadings and bis own affidavit, on tbe ground tbat tbe trial of tbe issues would require' tbe examination of a long account.
    Tbe answer of Rinaldo alleges, among other matters, tbat be bad paid tbe contractors tbe whole amount due them under their contract ; a breach by tbe contractors of tbe contract for tbe erection of tbe buildings; claimed a reduction in price for inferior quality; damages for neglect of tbe contractors to- complete tbe building within tbe time agreed on; abandonment of tbe work by tbe contractor, by which tbe owner was compelled to pay $1,800 for its completion. Tbe justice, at Special Term, granted a reference.

      George H. Forster, for tbe appellants.

      Albert Cardoso, for tbe respondents.
   Brady, J.:

Although this action, brought to enforce a Hen for materials furnished towards tbe construction of a building, is, in its nature, a foreclosure proceeding (chap. 379, Laws of 1875, § 10), tbe right of tbe plaintiff to recover rests upon the contract between the defendant, the owner, and the persons with whom he contracted. The state of their accounts may be a subject of investigation, and if that become necessary the case may be one involving a long account. Where, as in this case, the owner avers that he has paid his contractors, in good faith, all that he owed them under the contract, and that by reason of their failures to perform and abandonment of the contract he has been subjected to additional expense, and has the right to deductions from the price to be paid, the inquiry necessarily demands an examination of the details of which these elements consist, and in this case it is stated by the defendant, the owner, that the items on both sides, the plaintiffs’ and his, will be over 300. The deductions may not be strictly matters of account, but the payments to the contractors and the sums expended to complete the building after its abandonment by them are matters of account relating to a contract, and whether such an action should be referred is a matter of discretion.

The right to compel a reference cannot well be questioned. (Code, §§ 253, 254, 270, 271.) Under these provisions the distinction between actions at law and in equity having been abolished, issues of fact in an action for the recovery of money only, or of specific, real or personal property, or for a divorce on the ground of adultery, must be tried by a jury, if not referred, or a jury be not waived; but every other issue is triable by the court, which may order the whole issue, or any specific question of fact involved therein, to be tried by a jury, or may refer it as provided in sections 270, 271. Wliere the trial will require the examination of a long account on either side, the court may, upon application or its own motion, direct a reference, for the purpose of a hearing and decision of the whole issues by the referees. (§ 271; Draper v. Day & Orvis, 11 How. Pr. Rep., 439.) This discussion of the power to' order a reference results from the point taken by the appellant, that this being an action in which the form and manner of prosecuting it shall be the same as in actions for the foreclosure of mortgages upon real property (§ 10, act 1875, supra), a reference could not be ordered. It is quite apparent that the examination of a long account is necessary, assuming that the defense is T>ona fide, which must be done. If the defendant, the owner, was entitled to deductions when the plaintiff’s lien was filed, they must be allowed before he can be called on to pay any thing further. The same observation applies to the sums paid to complete the building after the alleged abandonment by the contractors, and so indeed as to any set-off or recoupment of damages. These elements might be considered and passed upon by the court at Special Term, but that is not the question here. It is whether the cause is referable, and whether any abuse of discretion signalizes the action of the court in compelling a reference. We think the cause is referable, and that no wrong was done or error committed in making the order appealed from. It must, therefore, be affirmed with ten dollars costs and the disbursements of this appeal.

Davis, P. J., concurred.

Present — Davis, P. J., Brady and Daniels, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Beady, J.:

text:
    CHARLES T. INSLEE, Survivor, etc., Respondent, v. ISAAC HAMPTON, Appellant.

      Oountes’-claim — used as a defense in óne action— the excess ov&r plaintiff’s claim in jw'St action cannot he recovered in a second action.

    When a factor, sued for the value of shipments consigned to him, sets up as a defense that he has made advances to the plaintiff, the consignor, in excess of the proceeds of their sale, and succeeds in such defense, and afterwards brings an action to recover such excess in which the consignor sets up the judgment in favor of the factor in the first action, held, that although no judgment for the excess of the counter-claim was asked or allowed in the first action, yet the factor could not, after having set it up and defeated the first action thereby, recover such excess in the second action. He could not use his defense first as a shield and then as a sword.
    Appeal from a judgment in favor of plaintiff, entered on a verdict directed by the court.

      II. H. Selden, for the appellant.

      H. Sheldon, for the resjiondent.
   Beady, J.:

The facts which the case presents are substantially these:

Gardner and Inslee, the original plaintiffs in this suit in 1868 and 1869, were commission merchants in the city of New York, to whom the defendant Hampton, residing in Livingston county, in October, 1868, consigned, in pursuance of a previous agreement, a quantity of wool and a quantity of butter, for sale on commission. The plaintiffs, in pursuance of the agreement, made advances to the defendant on account of the wool and butter, which they subsequently sold, and rendered their accounts of the sale of the butter in April and of the wool in July, 1869, showing a balance of over $300 due them.

The defendant Hampton being dissatisfied with such accounts of sales, both in regard to prices and weights, of which he notified them, and the parties failing to come to an agreement, he commenced an action in this court against Gardner and Inslee, stating in his complaint the shipment of the wool and butter to them, the agreement between the parties, and the breach thereof by the defendants, by sales at under prices, and neglect and refusal to account for and pay over the proceeds, and claiming judgment on account thereof to the amount of $1,700.

The defendants answered, alleging that they made advances upon the property, and that the proceeds of the sales, which were made in good faith and in pursuance of notice to the plaintiff, did not amount to enough to pay the advances and expenses.

The plaintiff and Gardner, his partner, then having commenced this action, claiming a balance of $367.03, due them on account of their advances and expenses over and above the proceeds of the sale of the wool and butter, the defendant answers, setting up the same matters alleged in the complaint in his action, claiming a balance due. He also set up as a separate defense the pendency of his action involving the determination of the same matters. It does not appear which of the two actions was commenced first, but the fair inference is, that the defendant’s was first commenced, because he set up as a defense in the case the existence of an action embracing the same subject-matter. The plaintiffs herein replied, taking issue upon the counter-claim. Subsequently the plaintiff Gardner died;, and the proceedings were continued by Inslee as the survivor of the firm. The defendant’s action was tried before a referee; the plaintiffs succeeded and a judgment was entered against him in their favor. The judgment was then pleaded by supplemental answer in this action as a bar. The record thereof was offered in evidence on the trial herein. It was objected to “ as not being evidence in this cause to determine the action, and as immaterial.” It was admitted under exception by the plaintiff. The defendant’s counsel then asked the court to direct a verdict for the defendant, which was refused, and he excepted. The court then directed a verdict for the plaintiff and the defendant excepted.

Neither party asked the court to submit any question to the jury. There was no question to submit. The defendant relied upon the record as a bar. The fact of its existence was not disputed. The value of the defendant’s appeal depends, therefore, upon the effect of the former action and judgment. The defense to the defendant’s action was, that the advances and expenses exceeded the product of property sold. It was employed only, it would seem, to the extent of meeting the plaintiffs’ claim, because no judgment for the excess was demanded by the answer and none was awarded by the referee. It was employed, however, and the plaintiff could have secured in the defendant’s action affirmative relief which would have rendered the continuance of this action unnecessary. The plaintiffs were not bound, it is true, to set up their counter-claim in that action. ¥e so declared when the matter was first argued. The defendant herein concedes that they were not obliged to interpose their counter-claim, but he insists that having done so, and having employed it to defeat his demand, and without which he must have succeeded, they could not, nor could the plaintiff, as survivor, recover for the excess in its amount over that demand. Neither he nor they could split up the counter-claim and make it answer the two-fold purpose of a defense and an action. In this he is sustained by the authorities. The plaintiff could not use his defense first as a shield and then as a sword. He must elect and stand by the choice. (O’Connor v. Varley, 10 Gray, 231; Hatch v. Benton, 6 Barb., 28 ; Farrington v. Payne, 15 Johns., 432; Draper v. Stowvenel, 38 N. Y., 219 ; O'Beirne v. Lloyd, 43 id., 248.) He did elect, and having done so the result of that act is a bar to this action. The refusal to direct a verdict in favor of the defendant on the undisputed record, was erroneous, therefore, and the judgment should be reversed and a new trial ordered, with, costs to abide the event.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed.

      Inslee v. Hampton, 8 Hun, 280. —[Rep.


author: Bradt, J.:

text:
    FREDERICK J. VISSCHER, Respondent, v. THE GREENBANK ALKALI COMPANY, Appellant.

      Contracts — several as to delimen'y — effect of acceptance of a portion of goods under.

    In a contract for the sale of goods, if the contract be severable in respect to the delivery, the purchaser may accept and use any portions as delivered, without waiving any right which 'may arise from a deficiency in the amount ultimately delivered.
    It is otherwise when the contract is a unity, and all the goods are to be delivered at one time.
    Appeal from a judgment in favor of the plaintiff, entered on a verdict and from an order denying a motion for a new trial.
    The action was brought to recover damages for an alleged partial unfnlfillmeut of an executory contract to deliver 1,200 drums of caustic soda.

      Buell da iStaats, for the appellant.

      Ohvoer J. Wells, for the respondent.
   Bradt, J.:

The defendants, through their agents, agreed to deliver to the plaintiff’s assignors, Church & Co., 1,200 drums of them “ caustic soda of their usual sise,” and at the rate of 100 drums per month. The drums delivered, in consequence of a change in their size, were smaller than the usual size referred to in the contract, and the plaintiff’s assignors were consequently deprived of the advantages to be derived from the quantity of soda which they would otherwise have received. The deficiency amounted to about 164,980 pounds. The weight of the first shipment under the contract was noticed and the agents of the defendants advised of it in writing by the

firm of Church & Co., who at the same time protested against accepting it as a satisfactory fulfillment of defendant’s obligations. The defense was chiefly that the drums sent were accepted, and that the purchasers, therefore, waived any right of action for a deficiency in quantity. It is true that the intent of the parties, as expressed by the words “of their usual size,”, was a subject of discussion, and perhaps of contest, but the main feature of the defense was as stated. The rule which is applicable to failures to perform, founded upon defects of or inferiority in the articles delivered, or upon their non-conf ormability to the requisitions of the contract, does not apply to a deficiency in the quantity. The former relate to the quality in form or substance of the article purchased. When they are thus defective they must be returned or the right of action is waived. The case of Reed v. Randall (29 N. Y., 358) is an illustration of this rule. When the quantity is deficient no such condition precedent exists. The purchaser is not bound to refrain from using the article delivered unless the contract is a unity to be performed by delivering the article contracted for in bulk all at the same time, as in the case of Flanagan v. Demarest (3 Robt., 113). If the contract be severable in respect to the delivery, the purchaser may accept and use the portions delivered. (Catlin v. Tobias, 26 N. Y., 222.) He does not waive any right which can prejudice the vendor, who may ultimately completely perform the contract. This the vendor cannot do when he fails to deliver in bulk as suggested, because the contract is at once broken when the failure stated occurs. The drums were not all deliverable at the same time, but through several months, and the contract was not, therefore, a unity in the sense suggested. This conclusion determines the appeal, because the exceptions do not present serious features, and may be disposed of generally by the observation that the examination of them does not reveal any reason why the judgment should be disturbed.

There was no exception to the charge, and all the requests save one were granted. The one refused was properly denied. We think the judgment should be affirmed.

Davis, P. J., and Daniels, J., concurred in the result.

Judgment affirmed.


author: Brady, J.: Davis, J.:

text:
    FIVE POINTS HOUSE OF INDUSTRY, Appellant, v. PETER AMERMAN, Executor of CHARLES E. CORNELL, Deceased, and others, Respondents.

      Condition — when legacy vests notwithstanding— Condition subsequent — what complicmce with sufficient.

    A testator gave $500 to tlie plaintiff “ to be applied to tbe uses of th.e farm in Westchester county,” subject, however, to the right of his sister while a widow to receive the income thereof. After the testator’s death and before that of the sister the plaintiff disposed of the farm in Westchester county. Held, That the gift vested in the plaintiff in remainder on the death of the testator. That it was not a condition precedent that it should be applied to the uses of the farm.
    That, if a condition at all, it was a condition subsequent and the gift was not defeated, because for a time the plaintiff had no farm to the uses of which the fund could be applied.
    Appeal by plaintiff from a decree of tbe surrogate of tbe county of New York.

      George F. Betts, for tbe appellant.

      Robert F. Little, for tbe respondent.
   Brady, J.:

Tbe last will and testament of Charles E. Cornell contained tbe following clause:

“ I give to my sister Louisa Adeline, wife of Salmon Booth, tbe interest upon $1,500, in case she shall become a widow, during her widowhood, payable annually. At her death I give $500 of said principal sum, each to tbe New York State Colonization Society, New York Young Men’s Christian Association, and Five Points House of Industry, under care of tbe Rev. L. M. Pease, to be applied to tbe uses of tbe farm in Westchester county. Tbe interest upon said principal sum of $1,500 for so much of tbe life of said Louisa Adeline, during which she shall' not be a widow, I give to tbe above-named institutions, to be divided equally between them, share and share alike, payable annually.”

And in reference to the status of the plaintiff herein and its rights the following facts are agreed upon:

The Five Points House of Industry is a charitable corporation, duly incorporated under the laws of the State of New York, having for its object the care of, education and moral training of poor children, especially those living at or near the Five Points, in the city of New York. And in pursuance of its colórate powers, it has always had and still has a house at the Five Points, where a home is given to some 200 children, and also a school where about 100 children are taught, and are also fed and supplied with necessary clothing.

It had also, at the testator’s death, and for several years thereafter, a farm in "Westchester county, on which some of the children were placed to labor. But that farm had been disposed of before the death of Louisa Adeline Booth, and the said corporation had no farm at the death of the said Louisa Adeline Booth, nor has it at any time since had or owned any farm.

It is also agreed that, at the time of the testator’s death, Salmon Booth, husband of Louisa Adeline Booth, was living, and that said Louisa Adeline Booth did not become a widow until May 30, 1855, six months or more after testator’s death, and that she lived a widow from that time until July 8, 1815, the date of her death.

The surrogate decided that the legacy did not vest because it was given on condition that it should be applied in a particular manner which could not be done. His opinion is as follows:

As to the legacy to The Five Points House of Industry,’ it is true that the corporation existed at the time of the decease of Mrs. Booth, but it also appears that the bequest was on condition that it devote the legacy to the purposes for which it was intended by the testator, and the term, to be applied,’ I think amounts to a condition, the non-happening of which defeats the legacy. (See Caw v. Robertson, 5 N. Y., 135; Wheeler v. Lester, 1 Brad., 213, and cases cited.”

As we understand from the opinion, the surrogate did not question that the legacy vested subject to the supposed condition. There does not seem to be any doubt about it. It was the intention of the testator and so declared expressly that the interest of the sum named should be paid in its proper proportion to the plaintiff, from his death until his sister became a widow. The payment of the legacy itself was dependent upon the life estate of his sister who simvived him and was to be paid upon her death. There can be no doubt that the legacy vested upon the death of the testator. (1 R. S., 723, § 13; Barber v. Woods, 1 Sandf. Ch. Rep., 129 ; Conklin v. Moore, 2 Bradf. 179 : In the Matter of the Trustees of the N. Y. Prot. Epis. Pub. Schools, 31 N. Y., 589.) In the last case, Denio, Oh. J., said: The general, if not the universal rule is, that where there is a person in being in whom the estate in remainder would vest in possession, if the precedent estate should immediately terminate, it is vested in interest, though it may not be certain that such person will be living or qualified to take at the actual cessation of the prior estate.” In the case of Blamore v. Geldet (16 Ves., 314), the language was, I give and bequeath to George Pringle £200 three per cent consols at my wife’s decease; all the residue of my estate I give to my wife. It was held that it was not a condition that the legatee should survive the widow and that the legacy vested immediately upon the death of the testator. The case of Patterson v. Ellis (11 Wend., 272), contains nothing in conflict with this view. The cases cited sustain it.

The decision of the smrogate, however, does not rest upon the converse of this proposition, but on the supposed condition annexed to the legacy, which, he thinks, defeats it.

It may be said, in reference to this proposition, preliminarily, that conditions are not favored, and, further, that they are generally expressed by words which ex vi termini create them, although no particular words are necessary to their formation, and they may become manifest as matter of intention without regard to the particular language employed. The phrase in general use is, upon condition, or provided, or upon the understanding, thus presenting something indicating the contingent reservation in the mind. In the clause under consideration the language employed is to be applied to the uses of the farm in Westchester county.” The testator gave the sum, but annexed a wish or direction that it should be applied in a particular manner. The wish or direction, however, followed the gift. There is nothing in the language adopted indicative of an intention to make a condition. The legacy is not on condition, or provided, or upon the imderstanding, but absolute as a gift, with a

direction or wish annexed to, or coupled with it, although there is no such feature in relation to the interest to be paid upon it, while the sister was not a widow. It must be said, farther, that the word “uses” may be justly construed to mean “purposes” of the farm, which formed the general object of the plaintiff’s society, namely, care and succor and protection of the children gathered within their fold. This was the object and design of' the farm, and constituted its uses. It was entirely within the scope of the plaintiff’s organization and purpose. The gift was to be applied to the uses of the farm, and not to the farm itself. It was not, therefore, a condition, but a wish or suggestion, coupled with the gift, that it should be employed for a general purpose, namely, the uses of the farm. If, however, the words considered in their place have the force of a condition, then it is a condition subsequent and not precedent. Whether it be one or the other often depends much upon the intention. “ If,” said Chief-Justice Marshall, in Finlay v. King’s Lessees (3 Pet., 375), “ the language of the particular clause or of the whole will shows that the act on which the estate depends must be performed before the estate can vest, the condition is, of course, precedent, and unless it be performed the devisee can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it, if this is to be collected from the whole will, the condition is subsequent.” In that case the will contained the following clause: “ In case of having no children I then leave and bequeath all my real estate at the death of my wife to William King, on condition of his marrying a daughter of William Griggs and my niece, Rachel, his wife.” The court held this to be a condition subsequent, and that the devise was in respect to the time of taking possession, as if it had been unconditional.

The rule is also similarly stated in Underhill v. Saratoga Railroad Company (20 Barb., 455).

“ If the act may as well be done after as before the vesting of the estate, or if from the nature of the act to be performed, and the time required for its performance, it is evidently the intention of the parties that the estate shall vest and the grantee perform the act after taking possession, then the condition is subsequent.”

The clause under consideration both by the provision for the payment of the interest while the sister named should not be a widow.

and the nature and form of the supposed condition, shows clearly that the testator designed the payment of the legacy to the legatees. They could not apply it to the uses of the farm until it was received, and if the contingency by which it was to become payable had happened when the legacy vested, it coidd have been applied as directed. The plaintiffs then had the farm. It is a general rule, however, that if an estate be given on a condition for the performance of which no time is limited, the devisee has his life for performance. (Finlay v. King’s Lessees, supra.) The result is that a devise to A on condition that he shall marry B, if uncontrolled by other words, takes effect immediately, and the devisee performs the condition if he marry B at any time during his life. (Id.) Won constat, but the plaintiff may yet apply the money to the farm in "Westchester county. If a legacy is subject to being divested on a failure of performance of the condition, it vests nevertheless. ( Wheeler v. Lester, 1 Bradf., 218, and cases cited.) If the legacy to the plaintiff is not absolute, but depend npon a subsequent condition, on these authorities the time of performance has not expired. The mere fact that during a period it has no farm to which the fund can be applied does not affect the right to receive the legacy. The condition may yet be performed. The decree of the surrogate would, for these reasons, seem to be erroneous, whether the legacy be regarded as conditional or otherwise, and the decree must, therefore, be reversed.

Daniels, I., conem’red.

Davis, J.:

I think the direction as to the application of the bequest was not a condition which can be held to defeat the gift, and for that reason concur in the conclusion of Brady, J.

Decree reversed.


text:
    THE WESTERN RAILROAD COMPANY, Respondent, v. LAWRENCE P. BAYNE and HENRY J. ROGERS, Appellants.

      Contract made by corporation — how it may be modified — deposit of bonds to meet payments under — assignment of, to dwecloi' of eompamy.

    The plaintiff, by resolution, authorized its president and three directors to contract with Hunt & Co. to build their road. The contract provided that a part of the compensation for the work should be j>aid for in plaintiff’s bonds according to monthly estimates, 885 bonds to be placed in the hands of an agent (the defendants), to be held subject to the joint order of the plaintiff’s president and the contractors; that the contract should not be transferred without the assent of plaintiff’s engineer. Payments on the contract were to be made according to monthly estimates of the engineer.
    December 5, 1870, the contract was assigned by Hunt & Co. to Lutterloh, one of the three directors who signed the contract. December tenth, a joint order of the president and Hunt & Co. was given defendants to hypothecate sufficient bonds to pay $20,000, the defendants having accepted a draft for that sum. On December twenty-one, by a joint order from the president and Hunt & Co., defendants were directed to turn over the bonds, subject to the payment of the draft, to said Lutterloh. January 5,1871, a paper, ratifying the assignment to Lutterloh and modifying the original contract so as to place all the mortgage bonds in the hands of said Lutterloh, was signed by the president and the director of the road, and a director of the company. The defendants surrendered to Lutterloh 460 of the bonds and gave him a receipt, stating that they held the remaining 425 bonds to secure their acceptance of the draft, and such other advances as they might make. The funds obtained upon the draft accepted by defendant, were not employed for the benefit of the road. The work of Hunt & Co., under the contract, did not exceed in value $8,500, and that of Lutterloh $900. In an action by the plaintiff to recover the 425 bonds, held,

    That the agreement of January 5, 1871, modifying the contract, was-void, as it could only be modified by action of the directors, the power of the president and committee being exhausted when the first contract was executed.
    That the president had no authority to act for the corporation, no acquiescence by it in such acts on his part being shown.
    That Lutterloh could not act as committeeman and assignee of the contract at the same time.
    That defendants knowing the terms of the contract, occupied the position of trustees for the plaintiff, and were bound to investigate the power arrogated, to modify the original contract, and before accepting- the draft to determine if work to its amount had been done.
    That the defendants had no lien, as against the plaintiff, upon the bonds held by them for the acceptance of the draft or for any advances made to Lutterloh.

      That although, under a contract with Hunt & Co., defendants were entitled to a commission of five per cent to he paid them, and to which they were entitled as soon as the bonds came into their custody, yet the discharge of their duty was a prerequisite to their earning it, and as they were derelict in their duty towards plaintiff, whatever their claim might he against Hunt & Co., they had no claim for commissions against the plaintiff.
    Ajppeal from a judgment in favor of the plaintiff, entered on the report of a referee. The action was brought to recover 425 one thousand dollar bonds of the plaiptiff. The answer alleges that the defendants have a lien on the bonds for money advanced.

      Algernon 8. Sullwcm, for the appellants.

      Moocby B. 8ndth, for the respondent.
   Beady, J.:

The plaintiffs, by resolution, authorized the president of their road and a committee of three directors, with the assistance of the chief engineers of the road, to contract with Hunt & Scales, or other parties, to build their road from Egypt to Greensboro. D. J. Underwood, W. B. Richardson and T. S. Lutterloh, were appointed such committee. On the 11th of October, 1810, a contract was accordingly made with Hunt & Scales. It contained, among other provisions, the following articles:

“ Article 10. On condition of the fulfillment, by said contractors, of the foregoing provisions of the contract, the said Western Railroad Company doth hereby promise and agree, that the said corporation shall and will, for doing and performing the wort as aforesaid, pay or cause to be paid to J. Hunt & Co., the said contractors, or their heirs, executors or administrators, for so much of said wort as is paid for in cash, according to the rates specified in the bids of said contractors, made on the 10th day of July, 1810, filed in the office of the said railroad company, and accepted by the committee of the board of directors, a copy of which bid is hereby appended, marked A, and made part of this contract, the remaining portion of said work to be paid for in the first mortgage , bonds of the said railroad company, at their par value, according to the rates specified in the bid of the said contractors filed in the office of the said railroad company, and dated July 10, 1810, a copy of which bid is hereto appended, marked B, and made a part of the contract.
“ Article 11. Monthly estimates, during the progress of the work, will be made of work done to the acceptance of the engineer, to an amount equal to a fair average value of the same, agreeably to this contract, and of the amount so estimated, the contractor will be paid ninety per cent, and when the whole work hereby contracted for shall have been accepted by the engineer, or completed agreeably to this contract, the balance due shall forthwith be paid to the said J Hunt & Co., them heirs, executors or administrators.
“ Article 12. The said railroad company agree to place the said mortgage bonds in the hands of an agent to be held subject to the joint order of the president of the said railroad company and the said contractors.”
On the 9th of December, 1870, the defendants, who constituted the firm of L. P. Bayne & Co., received the bonds under article 12, and on the terms expressed as follows: “ Received of A. J. Jones, president of the Western Railroad Company, 885,000 first mortgage bonds of the stun of $1,000 each, deposited with us as agents in accordance with the provisions of the contract made between Messrs. Hunt & Seales of the one part, and the Western Railroad Company on the other part, which contract is on file in the office of said company, at Fayetteville, North Carolina, and said bonds subject to the joint order of the president and contractor, to be drawn and used at their discretion, and for no other purpose.
“This December 9, 1870.
“ (Signed) L. P. BAYNE & Co.
“Witness, Chas. Houoh.”

On the 10th of December, 1870, the president of the road and Hunt & Scales delivered to the defendants a joint order authorizing them, in accordance with the powers conferred upon the former by the contract, to hypothecate or sell a sufficient amount of the bonds to pay and meet a draft of $20,523.93. The draft was drawn by John A. Hunt & Co., in favor of R. Y. McAdam, and the amount of it appears to have been paid to the president of the road. On the 5th of December, 1870, the contract was assigned by Hunt & Scales to Thomas S. Lutterloh, and on the 5th'of January, 1871, an agreement was executed relating to such assignment in favor of Lutterloh, which was signed by the president, W. B. Richardson, the director of the road, and D. J. Underwood, a director of the company. By this instrument, the seventh article of the contract, which prohibited the contractors from letting or transferring it or any portion of it without the consent of the engineer, was rescinded and made void and of no effect, so far as Lutterloh was concerned It was also provided by that instrument as follows:

“ And it is further covenanted and agreed that article 12 of the said agreement with J. Hunt & Oo., shall be revoked, made void and of no effect, and the following article shall be substituted in lieu thereof, viz.:

“Article 12. The said mortgage bonds shall be placed in the hands of the said Thomas S. Lutterloh, contractor, to be held and used by him for the purpose of securing advances of money for the performance of work to be done under this contract; and the said contractor shall account with the said company, whenever thereto required, for all moneys paid to him heretofore, or which may be paid hereafter, and all bonds delivered to him heretofore, or which may be delivered to him hereafter, at the par value thereof.”

Before this agreement was executed, and on the 21st of December, 1870, by a joint order from the president and the contractors, J. A. Hunt & Co., the defendants were directed to turn over to T. S. Lutterloh the bonds deposited with them subject to the draft in favor of McAdam, which was to be secured in that way. The defendants then surrendered 460 of the bonds for which the receipt of Lutterloh was given as contractor. On the 22d of December, 1870, Lutterloh gave the defendants an order which, referring to the 425 bonds held by them on his account subject to the lien of their acceptance for the McAdam draft, concluded as follows : “You will hold the same as collateral for any advances made me and for such purposes you are authorized to hypothecate the same.”

The defendants, on the same day, accepting the new relations thus created, gave their receipt as follows:

“New York, December 22, 1870.
“Received of T. S. Lutterloh, Esq., contractor of Western Railroad Company, four hundred and twenty-five bonds, the same held by us for his account, subject, however, to our acceptance of a draft for twenty thousand five hundred and twenty-three dollars and ninety-three cents in favor of R. Y. McAdam, Esq., of N. C., and subject also to such advances as we may make upon his order, we, for the above advance and acceptance, having power to hypothecate said bonds or any part of them.
“ L. P. BAYNE & CO.”

It seems to have been considered necessary, in order to make Lutterlok the custodian of the bonds, to rescind article 12 of the contract, which provided that they should be placed in the hands of an agent, subject to the joint order of the contractor and of the president, and to provide by further agreement that the bonds should be placed in his hands. This was accordingly done, as we have seen by the instrument of January 5, 1871. It appears also that the McAdam draft was a renewal draft. It does not appear that the funds received through its agency were employed for the benefit of the road. There is no pretense that it had any legitimate relation to the contract for which alone the bonds were deposited with the defendants, while it does appear that the joint order of Hunt & Co. and the president to hold the bonds for its payment was made after Hunt & Co. had assigned their contract. It is true that Lutterloh accepted the situation of affair’s thus existing, and renewed the order for the security of the payment of the draft after he became the assignee and contractor. An important question here presents itself, seriously affecting the rights of the defendants, and that is whether the agreement of the 5th January, 1871, which is in effect a new contract, was authorized by the plaintiffs, because if it was, it is quite apparent that a part of the defendant’s claim would be secured. It seems to be clear, however, that it was not authorized. The by-laws 'of the plaintiffs provide that contracts shall be made under such rules and regulations as the board of directors may prescribe, and again, that the president and directors shall have power to employ engineers and such other officers and agents as they may think proper. The power to make the original contract was granted by the directors and conferred, as stated, on the president and a committee of three directors, with the assistance of the chief engineer of the road. The contract was made. There was no authority given to change It, and if there had been, the change was not made through the instrumentality of the persons designated. The presumption of authority does not arise in this case from the

constant or general exercise of such a power with the knowledge of the board of directors, because there is no proof of such exercise of power. The contract expressed the source of authority for making it, namely, the resolutions stated. The power conferred must be exercised as granted, and the officers of a corporation can exercise only the powers expressly conferred, or such as they are permitted to perform sufficiently long to justify the conclusion of acquiescence by the board of directors. (Beatty v. Marine Ins. Co., 2 Johns., 109; Fulton Bank v. The N. Y. and Sharon Canal Co., 4 Paige, 127; Elwell v. Dodge, 33 Barb., 336 ; Jaokson v. Campbell, 5 Wend., 572; Life and Fire Ins. Co. v. Mechanics' Ins. Co., 7 id., 31.) The power of the committee and the president' was expended, therefore, when the contract was executed. Lutterloh could not be committeeman and assignee of the contract at the same moment, and hence the necessity of further action by the board of directors. The joint services of the persons named were desired by the plaintiff, and the duties assumed could not be delegated. When Lutterloh determined to purchase the contract, if with an honest design and new conditions, he should have communicated the fact to the board and they could have selected another in his place. ■ He did not do so nor did any of the others chosen, so far as disclosed by the evidence. Lutterloh could not complain of such a rule. He was a director of the company, and knew that by the charter and by-laws of the corporation which were proved herein, the persons who signed the agreement could exercise no such power, unless it was conferred in the manner provided. He also knew what the original contract was; that it had been made by.the committee selected for the purpose; that they had discharged that duty, and that the contract was complete. He also knew that the modification of the contract was not executed by the committee selected to make it. He was not only a director of the company, but dealing with the corporation, and must be presumed to know exactly what authority the president possessed and the object and design of the deposit of the bonds with the defendants. So far as he was concerned the agreement was void, absolutely so. The case shows no ratification of the contract altered as suggested by the corporation. It seems to have been a part of a scheme for some purpose other than the building of the road in which the president, Hunt & Co. and Lutterloh were concerned. This is the more apparent from the fact that the work done under the contract by Hunt & Co. did not exceed $3,500, and that under Lutterloh, if any thing was done, did not amount to-more than $900. The defendants knew that the original deposit of the bonds with them was under the contract between the plaintiffs and Hunt & Co., and that they were for no other purpose. They knew also that Lutterloh was a director. They were fully advised, therefore. The receipt which they signed contained a statement of the place where the contract was filed and its relation to the deposit was clearly defined. They thns assumed and occupied the position of trustees for the plaintiffs and the contractors, and not mere holders or depositaries, and were bound to discharge the joint obligation thus assumed, faithfully. When, therefore, the modifications of the contract was made, it became their duty to investigate the power arrogated to make it and to determine thereupon whether the bonds of the plaintiffs could be placed under the control of the contractor alone, with the right to employ them at his pleasure, regardless of the question whether he did any thing under the contract or not, and thus to divert them from the purpose for which they were expressly appropriated. They are chargeable with actual notice of the provisions of the contract, its object and design. With such knowledge they accepted at once the draft of hlcAdam, and at a time when the whole amount of work done did not exceed $3,500, if any had been done, and when, by reference to the contract, it would have appeared that the work was to be paid for on monthly estimates. They not only did this but surrendered 460 of the bonds, although it is apparent, from the manner in which it was done, that they doubted the legality of the proceeding and changed them relations to the plaintiffs by receiving the balance of the bonds, namely, 425, subject to the payment of that draft, and also to such advances as they might make upon the order of Lutterloh, thus agreeing absolutely to make advances upon his order, without reference to the provisions of the contract, which, as the plaintiff’s agents, they were bound to regard and observe. The effect of the modification and the understanding, as suggested, was to place these bonds entirely in the possession of the contractor, and in advance of and without regard to any work under the contract to be done by him in accordance with its terms. He acquired no right, however, to the bonds or any of them, except as assignee of the contract, and subject, of course, to its provisions. He was a director of the company, and chargeable with knowledge that the plaintiff’s then president had no authority, under its charter and by-laws, to make the modification which gave him the control of the bonds, and that he and the defendants all became wrong-doers in regard to them when they attempted to deal with them other than as the property of the plaintiffs, to be disposed of only when the terms of the contract and deposit were complied with. There is no pretense that there was any power given to any person to make the modification. The contract was complete when signed. The defendants were dealing with a corporation which was represented by its directors and officers, the latter limited in their authority to contract obligations which the corporation was bound to fulfill. This sale applied as well to the draft of $20,523.93, unless it was made good by the earnings of Hunt & Scales, under the contract of which the defendants took the risk. Hunt & Scales did not earn it, and it became a debt of Hunt and not that of the plaintiffs. We are not advised by the case what the.opinion of the referee was upon this subject, and left to conjecture if we seek to learn it. The case is one in which an opinion would have been of service upon the facts, because it rarely happens that an appellate tribunal, from a study of the printed evidence, can get the more impressive view which is made by hearing and noting the testimony as it is given. It is true that there is much testimony in reference to an attempted compromise between the plaintiffs and the defendants, after the succession of another president, but it was objected to by the plaintiffs on the ground that it related to a compromise by which the plaintiffs hoped to get their bonds, and was inadmissible. The objection was well taken, and the testimony received, in considering the whole case, ought not to weigh against the plaintiffs. The parties did not settle, and the defendants, for advances and commissions, claimed a much larger sum than that which the plaintiffs were willing to pay, although the defendants were willing to take less. The payments under the contract were not to be made until the engineer approved of the work done, and the validity of the advances under the contract affecting the plaintiffs’ property, necessarily depended, therefore, upon that incident which did not occur. This observation is made to meet the claim for alleged advances by the defendants over the draft of Hunt & Scales, to which reference has been made. These views dispose of the lien of the draft and the advances in addition thereto, which are not sustained, bejng subject to the same reasoning and result. The defendants claim, in addition to the advances, a commission of five per cent, which they say was to be paid them, and to which they, became entitled as soon as the bonds were placed in their custody. It was not necessary, they say, that they should be negotiated. It mattered not, under this alleged agreement, what disposition of the bonds was made, the commission was earned. The defendants admitted, however, that the discharge of their duty was a prerequisite to the earning of the commissions. The agreement was made with Hunt & Co. The defendants’ right to commissions as a lien on the bonds, must be determined by the relations existing between them and the company. If the result stated herein be correct, namely, that they were derelict in duty, whatever claim they may have against Hunt & Co. or Lutterloh, they have none against the plaintiff. Nor have they any claim against Hunt& Co. or Lutterloh, which is a lien on. the bonds of -the plaintiffs, because the bonds could only be affected by a proper use of them, namely, an appropriation in accordance with the contract and the terms of the deposit, which was a trust. If the defendants, in other words, were ■innocent holders, the lien .for commissions might be upheld. It is true that the agreement alleged to have been made was extraordinary, because, as we have seen, the commissions were due at once as soon as the bonds were deposited with the defendants. It was doubtless necessary to give it this sweeping character because 460 of the bonds were surrendered to Lutterloh and not negotiated or advanced upon. It is not necessary, however, to dwell upon that feature of this appeal. It is enough that the defendants omitted their duties, as trustees, to the prejudice of the plaintiffs. The plaintiffs have received nothing, comparatively, for the bonds which were appropriated to the completion of the road. They were hypothecated for other purposes both by the then existing president and by Hunt & Co. and Lutterloh, and were dealt with as if they could be bartered without any observance of the acts which alone could properly send them abroad, namely, the performance of the conditions of the contract. The failure of the defendants rests, therefore, on the broad proposition that in receiving the bonds as the agents of the plaintiffs, although subject to the joint order of the president and the contractors, they had a duty to perform and could not part from them except in conformity to the original contract and for the purposes thereof. The case is not free from embarrassment, and perhaps not free from doubt, but the conclusions stated are in harmony with legal principles and with the equities growing out of the transactions. The defendants cannot be regarded as haying acted in good faith and innocently. Them learned counsel urges that they not only were acting in good faith but with due regard to all their obligations. He thus presents a summary of this case, and which, he thinks, states it correctly both as to the facts, the justice and equity of it. “ The case then sums up in a narrow issue. A railroad company made a contract for the completion of their railroad, the work and materials to be paid for either in their bonds or in the proceeds thefeof, if sold. They place said bonds in the hands of their president and of their contractors, for purposes contemplating the raising of money thereon. The only notice given to the public was in a clause of said contract that said bonds should be deposited with an agent, subject to £ the joint order ’ of said president and said contractors. L. P. Bayne & Co., in good faith, made them agreements and made large advances, relying on the authority of said president and contractors, and having such £ joint-orders ’ duly in their possession. Even if the acts of said A. L. Jones, or of the contractors, were fraudulent (which is not proven), there is no ground for any charge that L. P. Bayne & Co. were cognizant of it. This railroad company assume that their officials and contractors defrauded them, and, taking their assumption for proof, that third parties who dealt with them in good faith, when aetmg within the seope of their cmthority, must lose their ackxmees.” It will be perceived that this is more favorable than the facts warrant. The notice given was, that the bonds were deposited in accordance with the provisions of a contract, and were to be used for no other purpose than the contract. The report of the referee should, for these reasons, be confirmed, with costs, because it restores the bonds held by the defendants to the rightful owners of them.

Davis, P. J., and Daniels, J., concurred.

Referee’s report confirmed, with costs.


author: Daniels, J.: Bradv, J.:

text:
    PATRICK O’CONNOR, Appellant, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      New York city — employes of — appointment of, how limited — payment of — prerequisite to § 32 chap. 137 of 1870.
    The charter of New York provided that the number of employes in every department and their compensation should be such as the head of each department should designate. The plaintiff received from the superintendent of public works the employment of water policeman, but never, though ready to act, was employed as such, nor was there any employment for him. In an action to recover his salary, held, that the intention of the law was that the power given should not be exercised beyond the limits of reasonable necessity, and plaintiff was not entitled to recover.
    The charter further provided that “No expenditure for work or supplies, involving an amount for which no contract is required, shall be made except the necessity therefor be certified to by the head of the appropriate department.” Reid, that his employment came within this provision, and that no certificate of the necessity of his employment having been given, he could not recover.
    Appeal from judgment in favor of defendant, recovered on trial at the Circuit.

      8trahcm c& Fvndley, for the appellant.

      D. J. Deem, for the respondent.
   Daniels, J.:

In June, 1871, the plaintiff received from the superintendent of public works, the appointment or employment of water policeman, and he continued to hold it until the early part of January, 1872.

■ During that time he performed no service whatever beyond going away with some letters for Mr. Cornell and Mr. Tweed. He did nothing as a water policeman, nor in any other capacity, except some errands, but waited around for instructions, which were never given. He was paid his compensation until October, 1871, and brought this action to recover it for that and the two following months. The amount claimed was $250. But he was prevented from recovering that by a dismissal of his complaint when his case was closed.

It is entirely evident from the testimony of the plaintiff that his position was of the description known as a sinecure. There was no employment for him and he never entered on the discharge of any of the duties appertaining to the water police. He was not appointed to any office, but simply employed in carrying notes and letters to certain parties, for the convenience of the persons who have been named. He was a mere excrescence on the public service of the city, placed there to be benefited by the compensation, without returning any equivalent by way of services. And his retention was a plain abuse of authority, a perversion of law to increase the public burthens.

It was a fraud upon the city which should not be sanctioned unless that has been required by the authority of law. The charter conferred very full authority, upon the superintendent of public works to make subordinate appointments and bestow employments upon others. (Laws of 1870, Vol. 1, 373, chap. 137, § 32.) But it was still the intention of the law that its exercise should not be extended beyond the limits of reasonable necessity. No formal words were required to be used for the expression of that intention, to warrant the conclusion of its existence. It is always to be inferred that authority is created to be used for the public benefit, and not to be perverted into a mere expedient for the increase of needless expenditures. And that was the power which was given to the superintendent of public works for the appointment and employment of the subordinates of his department. It was designed to be limited to such as were required to enable it to discharge its duties and enforce its authority. And it is plain, from another section of the act, that this general provision was positively designed to be subordinated to that restraint. By that it was provided that “no expenditure for work or supplies, involving an amount for which no contract is required, shall be made except the necessity therefor be certified to by the head of the appropriate department.” (Laws of 1870, Yol. 1, 392, chap. 137, § 105.) This provision was made exceedingly broad for the purpose of excluding the construction through which needless employments might otherwise have been eolorably made.

It has been urged that this restraint should be limited to the work mentioned in the preceding section. But there is no reason why it should be held to include the work there mentioned and exclude all other work which might be required on behalf of the city or any of its departments. The same restraint which was needed in one case was as much required in the others. The object was to shield the public against unnecessary expenditures of its revenues. And the provision should be construed with reasonable liberality for the purpose of seeming that result. That can very well be done, however, without extending the words used beyond them ordinary import. They relate to all expenditures for work, for which no contract was required. And the employment of the plaintiff presented a case of that description. He was employed nominally -to perform services or work, for the department. In reality nothing of that kind was probably designed, for no work or services appears to have been assigned to him. But in theory, he was employed to work, and this provision declared that he could only be paid, when the necessity of his employment should be certified by the head of the department in which he was engaged. That never has been done, and no excuse was given for the omission to produce the certificate. Bor this reason the plaintiff’s complaint was properly dismissed, and the judgment recovered should be affirmed.

Davis, P. J., concurred.

Bradv, J.:

I concur in the result although I think there is reason to doubt whether the provisions of section 105, referred to in the opinion of Justice Daniels, applies to services rendered. •

Judgment affirmed.


author: Davis, P. J.:

text:
    JOHN J. O’BRIEN v. JOSEPH G. BROWNING and others.

      Judgment debtor — fraudulent convey anee by — action to set aside — another creditor defeated in a mrnktrr action, estopped from uniting in it.

    This action was brought by a judgment creditor on behalf of himself and all other creditors who should unite with him, to set aside a fraudulent conveyance by the judgment debtor. The conveyance was decided to be fraudulent. Thereafter a judgment creditor, who had previously brought and been defeated in an action for the same purpose, applied to be joined as a party plaintiff. Seld, that the judgment in the action brought by him operated as an estoppel, and prevented, so far as the judgment upon which such action was brought was concerned, his being made a party plaintiff in this action.
    Arpead from an order made at Special Term denying tbe petition of appellants, to come in and be made parties to tbe above-entitled action.

      Jolm J. Townsend, for tbe petitioners.

      Malcolm Ga/m/pbeTl, for tbe respondents.
   Davis, P. J.:

Tbe above-entitled action was brought by tbe plaintiff on bebalf of himself “and all other persons being judgment creditors of tbe defendant, Joseph G. Browning, and similarly situated, who should come in and contribute to tbe expenses thereof.”

Tbe object of tbe suit was to set aside certain conveyances of lands, made, as alleged, in fraud of tbe creditors of said Browning. Such proceedings were bad that judgment was finally rendered in tbe action, by which tbe conveyances were set aside, and a receiver of tbe property was appointed to sell, etc., and collect rents and profits, and pay tbe proceeds into court; and among other things it was ordered and adjudged “that any judgment creditor of said Joseph G. Browning upon whose judgment an execution bad been returned unsatisfied may apply for leave to become a party to this action upon contributing to tbe expenses thereof.” Under this judgment tbe appellants, Ganslee and Eausel, filed their petition praying leave to come in as such judgment creditors. They showed by their petition that on tbe 2d day of July, 1869, they recovered a judgment against Browning for $718.86, upon which an execution bad been issued and returned unsatisfied except as to $286.58, and also that on tbe 11th day of October, 1875, they recovered against Browning another judgment for the sum of $14,110.79, upon which execution had been duly issued and returned wholly unsatisfied.

In opposition to the prayer of the petition it was shown that the petitioners and several other judgment creditors of Browning, in 1870, commenced an action to set aside the same conveyances, as fraudulent as against their several demands and judgments; that the judgment of the petitioners set forth in the complaint in that action was the first above described, recovered on the 2d day of July, 1869, for the sum of $718.86, and that the defendants answered said complaint; and that upon the trial of the issues joined therein, final judgment was given in favor of the defendants, adjudging that such conveyances were not fraudulent, and dismissing said complaint without costs.

Upon the trial of that action, the court, among other findings of facts, found “ that the said several conveyances and said mortgage were executed and delivered to the defendants, Sarah E. Browning and Anna Maria Browning, and by them taken in good faith for valuable consideration, and without any notice or knowledge on their part of any fraudulent intent on the part of the defendant, Joseph G. Browning, in making such conveyances and mortgage, or any intent to hinder, delay and defraud the plaintiffs in the collection of their several demands included in the said judgments, or any, or either, of them, and without any such intent on the part of said Joseph G. Browning.”

It was insisted, and the court below held, that this judgment was and is now an estoppel on the petitioners which prevented their alleging that the several conveyances mentioned in said judgment were or are fraudulent as to them, and on that ground the prayer of the petitioners to. be allowed to come in and be made parties to the above-entitled action was denied. We are of opinion that the court below erred in the application of the estoppel to both of the judgments recovered against Browning by the petitioners. The action of petitioners in which the judgment was rendered against them was based, so far as they were concerned, only upon the judgment recovered in July, 1869; and as to that judgment it was adjudged that the conveyances were not made with intent to hinder, delay or defraud the petitioners in the collection of the several demands included in the said judgment. It may well be that the judgment rendered in that action precludes the petitioners from now asserting, in any form, that the conveyances were made with fraudulent intent as to the judgment on which they then prosecuted. They would in legal effect be doing this, if suffered to come in as parties to the present action upon the basis of the first judgment, because they thereby, of legal necessity, adopt and assert the several averments of the complaint touching the alleged fraudulency of the deeds and mortgage. As they could not do this in an original action of their own, on the basis of that judgment, on account of the estoppel created by the judgment still remaining in full force against them,'they are not, we think, at liberty to do so by uniting in the action of the present plaintiff. But we think a different rule prevails as to the judgment recovered by petitioners in 1875. TJpon the question whether or not the conveyances and mortgage were fraudulent as against the demand upon which that judgment was recovered, there has been no adjudication. Indeed, the language of the judgment relied upon as an estoppel is limited, as will be seen by the above quotation, to the several demands upon which the judgments described in the complaint were respectively recovered, and the court pronounced judgment upon no other.

We think, therefore, the petitioners should be allowed to come in under the judgment in this action upon proper terms in respect of the expenses of the litigation, and establish the judgment recovered by them in 1875.

We, of course, pass upon no question in respect of the rights oí the petitioners to participate in the proceeds of sales and collections made by the receiver, except the single one of estoppel by force of the judgment against them as it appears in the paper before us. If there be any other reason why such judgment should not participate in such proceeds, any party to the judgment in the above-entitled action will be at liberty to assert it, and such objection will be tried and disposed of in such manner as the court shall then direct.

The order below must be modified accordingly and affirmed as modified, without costs of this appeal to either party.

Brady and Daniels, JJ., concurred.

Order modified as directed in opinion and affirmed as modified, without costs to either party.


author: Brady, J".: Daniels, J.:

text:
    THE HOME INSURANCE COMPANY, Respondent, v. THE PENNSYLVANIA RAILROAD COMPANY, Appellant.

      Insurance convpcmy — subrogation to rights of the insured — Local action — interest
    la an action brought in this State by an insurance company, which had paid to the insured the loss covered by its policy, to recover for the burning of a barn (the building insured) in the State of Pennsylvania, through defendant’s negligence, held,

    That the statutes of this State requiring that actions to recover for injuries to real property be tried in the county where the subject of the action is situated, related only to causes of action arising within this State.
    That the grcmamen of the present action was the negligence, and actions of such a character were personal and transitory.
    That the objection that the owner (the insured), and not the company, claiming by right of subrogation, should be party plaintiff, to be available, should have been taken by answer.
    In such an action, evidence of emission of sparks by plaintiff’s engines, prior and subsequent to the time of the burning in question, is admissible.
    It is error for the judge in such case to charge that interest must be added, by the jury, to the amount paid to the insured by the company, in case a verdict be rendered in the company’s favor.
    In actions sounding in damages the jury may allow interest or not.
    The proper charge to a jury in an action of this nature considered.
    Appeal by the defendant from a judgment in favor of plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial.

      Ashbel Green, for the appellant.

      Geo. W. Parrson, for the respondent.
   Brady, J".:

The plaintiff is an- insurance corporation of the State of New York, and the defendant is a railroad corporation of the State of Pennsylvania, incorporated under a charter allowing it to use steam locomotives. In and before October, 1866, Dr. "W. W. Rutherford was the owner of a bam situated near the line of the defendant’s road, a few miles from Harrisburg, in the State of Pennsylvania, The nearest part of this barn was thirty-seven feet from the track. This barn and its contents were insured with the plaintiff, by Dr. Rutherford, for $1,600, $800 on the barn and $800 on hay and grain and stock contained therein. About the 3d of October, 1867, the bam and its contents were consumed by fee; and on the 23d of December, 1867, the plaintiff paid Dr. Rutherford $1,600. This the plaintiff now seeks to recover from the railroad company, defendant, upon the doctrine of subrogation, Dr. Rutherford having refused to assign his claim.

The charge against the defendant was, that the fire was caused by sparks emitted from one of their locomotives which passed the premises on the day of the fire, and that the smoke-stacks connected with them were not of the most approved pattern in reference to the suppression of the emission of sparks. The testimony on the subject of the efficiency of stacks was in conflict. It appeared that another form was in practical use better adapted to the object to be accomplished. It also appeared that the barn, which was a short distance from the track, had been built before the road was constructed. There was evidence also bearing upon the subject of contributory negligence. It was shown, for example, that some loose straw was lying in the barn-yard, and that some chips of wood were also there which had accumulated. The presence of the straw in the yard was partially explained. The defendant accounted by the evidence for the good condition of their respective engines going east and west, in addition to the proof showing the fitness of the smoke-stacks used by them for the purpose for which they were employed.

The testimony was duly submitted to the jury, who found in favor of the plaintiff.

Several questions were presented on the argument which it may be necessary to consider. The defendant then asserted for the first time that this court had no jurisdiction of this action, because it was one to recover for injuries to real property, and was, therefore, local. The answer to this proposition is--Üaat-4ho-^taliute-jff our State on that suhiegf relates only to causes of action arising within it. (Barney v. Burstenbinder, 7 Lans., 210.) In the case just cited, which was for injuries to the personal and real estate of the plaintiff in California by the negligence of' the defendants, the court said, the injury to the real estate'is only one element of the damages. Thg_ distinction was further presented that th.q gravamen of the action was negligence, and actions of that character were peiv sonal andjuansitory^ The question presented has, therefore, been considered and determined in effect in this district, and the result remains the law until reversed by the court of last resort. (The case of Gardner v. Ogden (22 N. Y., 327) furnishes illustrations of the ■ instances in which this court may exercise its authority relative to land in a foreign State, when jurisdiction has been acquired by the appearance of the parties?)

The defendants also claim that tins action cannot be maintained by the plaintiffs in their own name. The response is that such an objection must be taken by answer or it is waived (Code, 144, 148), and this answer thus given is equally responsive to the proposition that although the right of subrogation may exist, the action to enforce it must be in the name of the assured, he holding the' legal title. "Whatever may have been the rule prior to the Code, the action, if brought now in the name of the person holding the equitable title, which is the plaintiffs’ right, may be maintained if the answer does not set up as a defense the assumed defect. When the objection goes to the form only, and therefore to the shadow, and not to the substance, the provisions of the Code and the spirit of the system inaugurated by it require that it be regarded as technical, and to be effective only where it is averred, and this is required that any amendment necessary to overcome it may be made at once. This is a just rule where a right of action exists in any form, legal or equitable. The right of the plaintiffs acquired by subrogation does not seem to be seriously contested. Under these circumstances we are not called upon to consider more particularly the objection mentioned, the answer being silent on the subject.

The further objection that proof of prior and subsequent emission of sparks by the defendant’s engines, or some of them, was improp erly permitted, is untenable. Such evidence has been declared to be admissible in actions of this class. (Sheldon v. The Hud. R. R. R. Co., 4 Kern., 218 ; Field v. The N. Y. Cent. R. R. Co., 32 N. Y, 339; Webb v. R., W. and O. R. R. Co., 49 id., 420.) The proof of the direction in which the wind was blowing was also entirely competent. (Sheldon v. The Hudson R. R. R. Co., supra.) The exception to the exclusion of a part of the evidence of Charles W. Gordon, and by which it might have certainly appeared that he examined the smoke-stack of the locomotive 379 on the day of the fire, and that it was in perfect order, is not available to the defendant. There was no evidence to the contrary. James Philips, the engineer of that locomotive on the day of the fire, was examined on behalf of the plaintiff, and testified that his engine was in good condition, and that statement, it is apparent from his evidence, included the smoke-stack.

He did not regard them as separated from each other. This being the ease the plaintiff had shown that the smoke-stack was in good condition. Beside that it' is very clearly apparent, that the case was submitted to the jury on the proposition that the defendant did not employ the improved or better smoke-stack then in use by other companies, and by which it was claimed greater security was accomplished. The charge of the learned judge relates to this subject and not to the condition of the smoke-stack. It treats the issue as one involving the form or construction of the smoke-stack and not its condition as to repairs. There can be no doubt of this view after a careful perusal of the charge, and we cannot see, therefore, that, under the circumstances, the exclusion mentioned could have affected the interests of the defendant. There was no dispute about the condition of the smoke-stack of engine 379, and the testimony was unnecessary, therefore; and, again, the issue submitted to the jury, as we have seen, did not involve any proposition connected with such condition. The dispute was as to the mode of construction. In that regard the witness Philips testified that the kind of smoke-stack employed by the defendants had been in use.by them for six months prior to the fire; that the reputation of it was very good, and that he knew of none better, and this was in their favor. This is the only exception arising either from the admission or exclusion of testimony, to which we deem it necessary particularly to refer.

The right of the plaintiff to succeed depended entirely upon the negligence of the defendant and the absence of contributory negligence on the part of the assured or his agents. These questions were submitted to the jury, with full instructions, and were found against the defendant. There was no direct proof of the fact that the sparks from the defendant’s engines, or one of them, occasioned the fire, bnt there was evidence of the emission of sparks and of the transit of defendant’s locomotives about the time of the fire. This evidence was sufficient to justify the conclusion that the fire originated from that cause. Indeed there was no pretense of any other origin. The defendant’s counsel secured by exception and a faithful and able discharge of his duty, every advantage which could spring out of the proceedings on the trial and on the argument, but it is patent that the judgment may be sustained in part at least. The charge of the learned justice presiding was as favorable to the defendants as they could properly require it to be. Of the numerous requests made few were denied, and those which were refused were properly rejected. For example, this ingenious request was asked: “ In this case the emission of sparks from the stack of a locomotive is not in itself illegal.” If the court had charged that proposition unqualifiedly it would have substantially disposed of the case. It was qualified by a union with the rule that it involved the question whether the defendants used the best-known appliances in practical use. The emission of sparks from a locomotive, which in that respect was imperfect and dangerous, would be in itself illegal because the defendant cannot employ such constructions in the use of their franchise with impunity.

The learned justice was also asked to charge as follows:

8. “As matter of law, there is no evidence of any knowledge, on the part of the defendant, in October, 1867, of any better smokestack than the one in use by them, which had been established by known practical use.” But the court said: “I do not think it is matter of law; I think that is matter of fact. I refuse to charge that as matter of law.” This disposition of it was proper. There was some evidence bearing upon the subject, and the question was one of fact, and not of law exclusively. When the jury said they did know if they should so decide, then it became, as to them, matter of law by the application of the fact found.

The learned justice was also requested to charge as follows :

“ That even if the jury find that the fire was actually caused by a spark from the ’defendant’s locomotive, still, if they also find that the engines of the defendant were properly and skillfully made, and furnished with such appliances for the prevention of fire as had been found practically serviceable, and that they were in the charge of skillful and proper persons, the plaintiff cannot recover.” To which the answer was properly made and the law expressed: “ I will say — ‘with the best appliances for the prevention of fire, which had been found practically serviceable ’ — with that alteration, I charge the proposition.” The exception taken cannot, therefore, be sustained. The learned justice was also requested to charge that the jury could not allow for any damages to the barn or other real estate, and, also, that the court should direct a verdict for the defendant. Both requests were denied, and separate exceptions taken. The first of those is predicated of the assumed want of jurisdiction, and is untenable. The second was not seriously proposed on any other doctrine than want of jurisdiction and the inability of the plaintiff to sue. Neither of the exceptions were, therefore, well taken.

It thus appears that out of sixteen requests to charge, ably, ingeniously prepared, the defendants were allowed ten; among them were the following:

1. The use of locomotives in the business of railroads is lawful, and no presumption of negligence arises from the mere fact that fire has been communicated from them.

2. Negligence cannot be inferred from the simple fact of causing the fire.

4. The jury must have no reasonable doubt that the fire originated from the defendant’s locomotives; it is not enough that' it might have so originated.

3. The defendants were not bound to use every possible preventive which the highest scientific skill might have suggested, nor to adopt an untried machine or mode of construction.

4. The defendants are not to be held guilty of negligence because they did not adopt another kind of smoke-stack, even if the jury believe it better than the one used, unless practical men had put it into such use, and so established its capabilities as that it ought to have become known to the defendants.!

5. “ That the plaintiff has no greater rights than Rutherford would have had if he were the plaintiff in this action.”

6. “ That Rutherford and his tenants were bound to use such care in protecting his premises as a man of ordinary prudence would have employed under the circumstances; and if, through his neglect or that of his tenants, his property was destroyed, or if such neglect, on the part of Rutherford or his tenants, concurred with negligence on the part of the defendants in producing the result, the plaintiff cannot recover.”

7. “ That the plaintiff cannot recover unless it appears that Rutherford was free from any negligence, without which the fire would not have happened.

8 The greatest negligence on the part of the defendant will not cure the defect of the least negligence contributing to the injury, on the part of Rutherford or his tenants.”

The requests on the part of the plaintiff granted and excepted to were in harmony with the rales of law applicable to this class of cases, and therefore unobjectionable. They were warranted by the facts disclosed and the testimony given. Upon the questions of negligence on either side the jury were the arbiters, and seem to have disposed of them in accord with the evidence given. "We do not feel called upon to express any dissatisfaction with the verdict.

When a corporation exercises a dangerous right, it should be done in such a manner as to insure the safety of life and property, if it can be accomplished. This duty should not be limited by the imposition of greater vigilance on the part of the injured person to protect himself against the errors and infirmities of the corporation, its agents, instruments or employes. Reasonable care on the one hand, and resort to all known appliances for safety on the other, is the golden rule determining and controlling the relations between the public and the corporation. The auxiliaries to the application of that rule, called into play in this case, have been extended to both sides without error, and, therefore, without injustice, and the result in that resjjeet must be sustained.

These views present the judgment of this court upon all the questions which we consider it necessary to examine in detail, save one exception which was well taken, and that was to the direction of the court that the interest must be added to the sum of $1,600, if the jury found for the plaintiff. The defendants were liable for damages, and in actions sounding in damages the jury may allow interest or not, as they shall determine. If given, it is a part of tbe damages. It is an element of them. Tbe plaintiffs were in tbe place of tbe assured, and bound by tbe rules which would have controlled him. The allowance of interest was, therefore, a matter of discretion for the jury. Diligent search has revealed no case sustaining the converse of this proposition, which is familiar, and the plaintiff’s case does not present any element which calls for the application of a new rule. The interest was said, by the learned justice presiding, to be $700, and there must, therefore, be a new trial, unless the plaintiffs consent to reduce the judgment that amount. If such consent be given, it will be affirmed for the balance, without costs to either party, otherwise it is reversed, and a new trial ordered, with costs to abide the event.

Daniels, J.:

The fire by which the barn, and the property it contained, were destroyed occurred in the afternoon of a day in October, 1867. It was the only afternoon which had become an important subject of reference diming the trial; for that reason when the witness Gordon stated that he examined the engine “ on that afternoon,” it plainly referred to the afternoon of the fire, and must have been so understood by the jury. That rendered the preceding statement, which the court excluded, that it was on the day of the burning of the barn that he made the examination, a mere repetition of the evidence which was received, and its exclusion was not error. In other respects, I concur in the opinion of Mr. Justice Brady.

Davis, P. J., concurred.

Judgment reversed, new trial ordered, costs to abide event, unless plaintifE consent to reduce the judgment as suggested in opinion, in which event judgment, as so reduced, affirmed without costs.