text:
    Henry C. Wintringham, Resp’t, v. Frederick C. Whitney, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    1. Appeal—Objections waived.
    Where a demurrer to a counterclaim is treated by the court and counsel as sufficient in form, it will not be held insufficient on appeal. . .
    3. Pleading—Counterclaim—Demurrer.
    A demurrer may be taken to a counterclaim containing denials, the effect of which is to negative the existence of any relation between the defendant and the plaintiff and thus show that "the cause of action relied upon as a counterclaim cannot have arisen out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim and cannot have been connected with the subject of the suit.
    Appeal from an interlocutory judgment entered on a decision sustaining a demurrer to the counterclaim.
    Irving M. Dittenhoefer, for app’lt; R. Burnham Moffat, for resp’t.
   BARTLETT, J.

—For a first cause of action" the complaint in this case alleged that the plaintiff was a yacht and boat builder, 'doing business in the city of Brooklyn; that the defendant was the owner of the sloop yacht White Wings; that between the 25th day of June and the 30th day of August,"" 1890, the plaintiff, at the request of the defendant, performed certain work, furnished certain materials, and laid out sundry sums of money upon the said yacht, of which an account was duly rendered to the defendant; and that the reasonable value of such services and materials, together with the money expended, was $309.49, no part of which sum had yet been paid, although duly demanded. The defendant, in his answer, alleged that he had no knowledge or information sufficient to form a belief as to whether the plaintiff was a yacht and boat builder doing business in the city of Brooklyn, and therefore he denied that allegation.- He also denied positively each and every other allegation set out in the complaint as constituting the first cause of action. For a further, and separate answer and defense to the first alleged cause of action, and by way of counter claim, after reiterating, realleging, and reasserting the denials already mentioned, the defendant alleged as follows:

“That the plaintiff was, at the times hereinafter mentioned, and at the times mentioned and referred to in the complaint, a yacht and boat builder, and also engaged in the business of taking care of yachts for hire at his shipyard in the city of Brooklyn; that the said plaintiff, in connection with, and as part of the arrangement or contract claimed to have been made by him for the performance of, certain work, labor, and services, and the furnishing of certain materials in and upon the yacht White Wings, as alleged in the complaint, agreed, among other things, to take charge of said yacht White Wings at his shipyard, or dock adjacent thereto, at the foot of Fifty-fifth street, in the city of Brooklyn, at an agreed compensation, and to take extraordinary and good care of said yacht daring the continuance of the said bailment; that the plaintiff so negligently and carelessly conducted himself with respect to the said yacht, and so grossly violated bis said contract in reference to the care of the same, that the said yacht was greatly damaged, by having her starboard bow stove in, and her forward timbers loosened and strained, and various other damage done, so, that the said yacht became unfit for use and unseaworthy, and sustained damages in the sum of $500.00; that the said counterclaim and cause of action existed at the time of the commence-' ment of this action and the said cause of action arose out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, and is connected with the subject of the action.”

To the counterclaim thus pleaded the plaintiff demurred, on the ground that the same was insufficient in law upon the face thereof. The court below rendered a decision sustaining the demurrer, and from the intelocutory judgment entered thereon the defendant has appealed to this court.

The first point made by the appellant is that the demurrer is defective, because it merely states that the counterclaim is insufficient in law upon its face, and does not specify the objections to the counterclaim, as required by section 490 of the Code of Civil Procedure. That section provides that the plaintiff may demur to a counterclaim upon which the defendant demands an affirmative judgment, where one or more of five several objections (which are specified in the section) appear on the face of the counterclaim. Section 496 requires a demurrer taken under the previous section to distinctly specify the objections to the counterclaim, and provides that otherwise the demurrer may be disregarded. There is no doubt that strict practice would have required the plaintiff herein to distinctly specify one or more of the objections mentioned in section 495, inasmuch as the counterclaim to which he demurred was one upon which the defendant demanded an affirmative judgment, and, therefore, fell within the purview of the section. The demurrer, however, was evidently drawn under section 494 of the Code of Civil Procedure, which relates to a counterclaim upon which no affirmative judgment is demanded. That section provides that the plaintiff may demur to a counterclaim or a defense consisting of new matter contained in the answer, on the ground that it is insufficient in law upon the face thereof. A demurrer under that section, on that ground, is practically the same thing as a demurrer under section 495, specifying the objection that the counterclaim does not state facts sufficient to constitute a cause of action. That the court and counsel regarded it in this light may be inferred from the fact that no objection to the form of the demurrer is disclosed by the record. The case appears to have been argued and decided below on the assumption that the demurrer was sufficient in form, and, in the absence of objection, that they thought it was properly so regarded. We are also satisfied that judgment was properly rendered against the defendant on the demurrer. The counterclaim begins by adopting certain denials, the effect of which is to totally disconnect the defendant from any of the transactions which are set out in the complaint as constituting the first cause of action. It then proceeds to aver, in substance, that the plaintiff agreed to take charge of the yacht White Wings, *at its shipyard in the city of Brooklyn, at an agreed compensation, and to take good and extraordinary care of the said yacht, but conducted himself so negligently and carelessly in respect to the vessel that she was damaged to the extent of $500. It is impossible to perceive how these averments, if true, can possibly affect the defendant, or give him any claim or cause of action against the plaintiff; for, as a part of the very same counterclaim, he has denied any ownership of the yacht in question, and there is not anything in his pleading to indicate that he had any interest whatever in the vessel. The counterclaim is not aided at all by the allegation in the last clause that it existed at the time of the commencement of the action, and arose out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, and was connected with the subject of the action. No effect can be given to those statements as allegations of fact, in view of the previous denials disconnecting the defendant from the yacht and the plaintiff’s claim by reason of his work upon it. In the case of Flechter v. Jones, 64 Hun, 274; 46 St. Rep. 125, the general term of the First Department held that-a defense which contained a general denial was not demurrable, and the appellant cites that decision in support of the proposition that a demurrer never lies to a pleading which contains denials of the complaint. We think this proposition is too broad to be an accurate statement of the law. A demurrer to a defense which consists in part of a general denial cannot be sustained; but there is no reason why a demurrer may not be well taken to a counterclaim containing denials the effect of which is to negative the existence of any relation between the defendant and the plaintiff, and thus show that ' the cause of action relied upon as a counterclaim could not have arisen out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, and could not have been connected with the subject of the suit. Ordinarily, it is true, denials are no part of a counterclaim (Foley v. Bank, 33 N. Y. Supp. 414), but the pleader who has chosen to incorporate them in a counterclaim cannot successfully object to their being so considered.

The interlocutory judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: BARTLETT, J.

license: Public Domain

text:
    J. Sterling Drake et al., Resp’ts, v. Village of Port Richmond, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’y 4, 1896.)

      ' Appeal—Pbbsumption.
    Where the findings of the trial court are capable of two interpretations on an appeal which does not bring, up the evidence, the appellate court is bound to adopt that construction which will sustain the judgment.

      . Appeal from a judgment in favor of plaintiffs.
    William Allaire Shortt, for app'lt; Benjamin Estes, for resp’ts.
   BARTLETT, J.

— The plaintiffs are owners of certain lots in the village of Port Richmond. These lots were assessed for constructing an outlet to a village sewer. The plaintiffs, claiming that the assessment was illegal and void, brought this action to have it canceled and annulled, and the apparent clould upon their title thus removed. The alleged illegality consisted in including in the assessment a sum for the expense of work done on the sewer outlet under a former proceeding, which former proceeding had been adjudged void by the general term of the supreme court. The defendant does not dispute the invalidity of the assessment which is attacked in this suit, but asks us to reverse the judgment on the ground that the assessment was void on the face of the record, and therefore did not constitute an apparent lien or cloud on the plaintiff’s title, so as to justify the granting of equitable relief. The appeal papers do not contain the evidence in the case. There is nothing before us but the summons and pleadings, the findings and decision of the trial judge, the exceptions, and the notice of appeal. In order, therefore, to sustain its position, the defendant must be able to point out something in the record which shows that the invalidity of the assessment proceedings is apparent upon the face thereof; that is to say, can be ascertained from an examination of the assessment roll itself, so that any person, in examining it, would be told that the assessment was void at the same time that he ascertained that there was any assessment at all. I am unable to discover anything in the appeal book which makes it clear that the assessment is thus shown to be void upon its face. Indeed, there is a distinct admission in the pleadings that the assessment is a lien. In paragraph 18 of the complaint it is alleged that “said assessment is an apparent lien and cloud upon the title of the property of these plaintiff’s aforesaid, greatly to their damage and injuryand in paragraph 10 of the answer the defendant admits “ that the assessment mentioned in paragraph 18 of the complaint is a lien upon the title of the property of the plaintiffs, but denies, on information and belief, that the same is greatly to the damage and injury of said plaintiffs, or ■either of them.” The learned counsel for the appellant argues that the trial court, in the findings of fact numbered 7, 8, 9, and 10, explicitly and affirmatively found that the item for previous ■construction, and the unauthorized action of the board, appear on the minutes in the contract, and on the face of the assessment roll. We do not so understand those findings. They do show the fact that the expense of work done on the sewer outlet under a former proceeding was included in the contract, but they do not show that the facts rendering the insertion of this item illegal appear on the minutes of the board of sewer commissioners, or on any record of the assessment. Thus, in the finding numbered 7 it is declared that the former proceeding had been, by the general term of the supreme court, adjudged illegal, null and void. As we interpret this, it means simply that such a decision had been made, not that the fact that such decision had been made appeared of record on the minutes of the sewer commissioners,, or anywhere in connection with the assessment roll. If the findings of the trial court are capable of two interpretations on an appeal which does not bring up the .evidence, the appellate court is bound to adopt that construction which will sustain the judgment. Even if we entertained more doubt than we do as to the proper interpretation of the findings in the present case, the application of this rule would require an affirmance of the judgment.

Judgment affirmed, with costs. All concur.


author: PER CURIAM.

text:
    John H. White, Resp’t, v. Francis Wilson, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Deposition—Examination before trial.
    In an action to recover royalties under a contract providing for a certain royalty for each week during which defendant should produce a certain libretto, defendant,' on examination before trial, may be compelled to disclose the number Qf representations given by him of the rival versions of lis assignor’s librettos. hr-' . • *. it. • *.
    Appeal from an order, denying a motion to vacate an order for examination before trial.
    W. D. Leonard, for app’lt; W. F. Severance, for resp’t.
   PER CURIAM.

—The only point upon which the plaintiff really requires the testimony of the defendant is with regard to the number of representations given by the latter of the rival versions .of his assignor’s librettos. The plaintiff cannot know the facts on this head, nor has he the means of readily proving them. The defendant, of course, knows just when and where the productions in question were given. If the plaintiff is right in his general contention, he will be entitled to the specific sum of $50 per week for every week during which the defendant produces other adaptations of the pieces already adapted by plaintiff’s - assignor under the contracts sued upon. The examination should, however, be limited to this one specific subject.

The order appealed from should be modified so far as to require the examination of the defendant upon the point indicated, and, as modified, affirmed, without costs to either party.

INGRAHAM, J., taking no part.


author: CONLAN, J.

text:
    Eva L. Goldenson, Resp’t, v. Chester R. Lawrence et al., App’lts.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    1. Warehousemen—Conversion—Defense.
    The defense, in an action against a warehouseman for conversion of goods, that the goods were not owned by plaintiff in good faith, was held not to be sustained by the evidence.

      2. Evidence—Documentary.
    A bond and a mortgage securing it and a draft to a third person for net proceeds of the mortgage, are admissible to prove that the transfer of goods by such third person to the mortgagor, was made in good faith.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Goodrich, Deady & Goodrich, for app’lts; David Leventritt, for resp’t.
   CONLAN, J.

—Appeal from a judgment, entered upon a verdict, and from an order denying a motion for a new trial.

This action was brought to recover damages for the conversion of sixteen casks of soda ash, valued at $500. The answer, as originally interposed, admitted the delivery to the defendants (who were warehousemen) of sixteen casks of soda ash, and that the plaintiff tendered the warehouse receipt therefor, and the storage, amounting to $12, and demanded redelivery thereof, and also admitted the partnership of the defendants, and denied all the other allegations of the complaint. Pursuant to an order made herein on the 21st day of March, 1892, the defendants were permitted to serve an amended answer, which added a seventh subdivision or paragraph to the original answer theretofore served. This seventh paragraph constituted a separate and distinct defense, and alleges, in substance, that the soda ash in question was obtained by fraudulent practices and representations made by one Solomon Seligman to the firm of Welch, Holme & Clark, which firm replevied the goods in question from the defendants, and that notice thereof was given to the plaintiff. At the time of the granting of this order the defendants entered into a written stipulation with the plaintiff, which is found at folio 39 of the printed case, as a condition of allowing the amendment to the answer, whereby it was provided, among other things;

“ That if, at the close of the testimony, no evidence shall appear upon the minutes of the court that the plaintiff was the owner or holder, for full value, of the soda ash, and also, if no evidence shall appear upon the minutes of the court that the plaintiff, when she parted with such value, had knowledge of notice of the facts connected with the purchase or procurement, by one Solomon Seligman, from the firm of Welch, Holme & Clarke, of the soda ash referred to in the complaint, then and in that event all testimony that shall have been admitted in evidence to sustain the allegations of the seventh paragraph of the amended answer shall be stricken out upon plaintiff’s motion; the trial then to proceed as if paragraph seven were admitted and stricken out.”

Upon the trial of the action it appeared that one Solomon Seligman became indebted to the plaintiff, in March, 1891, in the sum of $500 for money loaned, and that the soda ash in question was not brought by Seligman until May, 189 L ; so that, at the time of the creation of the indebtedness of Seligman, knowledge or DOtice of any fraud on the part of Seligman in the procuring of the soda ash could not have been imparted or imputed to her (the plaintiff). The transaction had not taken place.

To support the good faith of the loan by plaintiff to Seligman, the plaintiff put in evidence a mortgage given by her, jointly with her husband, upon land purchased by her money, accompanied with a coupon interest note, and a memorandum of the expenses attending the execution of the mortgage, which amounted to' $36.-90, leaving as proceeds of the loan, $-193.10, which amount was handed to Seligman in a draft, he agreeing to pay the expenses, amounting to $39.09, as a condition of obtaining the loan from the plaintiff, who was his sister. This evidence is undisputed. Subsequently, as appears from the evidence, the plaintiff desired repayment of the loan, and called upon Seligman for that purpose at his place of business, and demanded the money; but Seligman said he did not have it, but, if she 'desired payment then, he would turn over to her some of his stock, and - it was agreed that she should have sixteen casks of soda ash in payment, .and the same were turned over to her at that time, and were after-wards sent, in her name, E. L. G-oldenson, to the defendants’ warehouse, and they issued their warehouse receipt therefor. The •conversation between plaintiff and Seligman was corroborated by the witness Londe. This testimony is uncontradicted by the defendants. Subsequently, the plaintiff called at the defendants’ place of business, tendered them the warehouse receipt that had been issued in the name of E. L. Gloldenson, and the amount of the storage, and demanded the delivery to her of the property, which was refused. This is admitted by the answer.

We have looked in vain for any evidence which assails the good faith of the loan by the plaintiff to the brother, Seligman, or that imputes to her any knowledge of fraudulent transactions of Seligmap, as set forth in the seventh paragraph of the amended .answer, and are of the, opinion that the motion to strike out paragraph seven and all of the testimony entered thereunder regarding the representations that were alleged to have been made by Seligman with reference to the purchase from Welch, Holme & Clarke, at folios 270 and 271, was properly granted.

With this feature of the case eliminated, the plaintiff’s title to the soda ash in question became undisputed in every particular. She had parted with her money in good faith, and, when the borrower could not pay on demand, he delivered to her, in payment, the soda ash in question, and the same was stored for her account .and in her name by the defendants, who issued to her thereafter their warehouse receipt, and on its presentation to them, they refused to deliver the goods which it called for, after being tendered the amount due for storage. s

The defendants appear to have been fully satis Bed with the •charge of the trial justice, as no exception was taken thereto; and, indeed, it was in all respects fair to them.

We have examined the other exceptions taken by the defendants, but do not think they are of any importance to the defendants upon this appeal, in view of all the circumstances attending the trial of the case in the court below. The - evidence admitted tending to show the good faith of the loan was, we think, properly admitted. The defendants had attacked the good faith of the transaction, and the documents relating to the loan were certainly the best evidence that could be offered; and, besides, they fully corroborate the testimony of the plaintiff.

For these reasons we are of the opinion that the judgment and order appealed from should be affirmed, with ycosts.

All concur.


author: BOTTY, J.

text:
    Catharine Jennings, Resp’t, v. James Lancaster, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    1. Supplementary proceedings—Jurisdiction.
    . To confer jurisdiction, under section 2435 of the Code, upon the judge who grants an order in supplementary proceedings, it is absolutely essential that the execution should have been returned unsatisfied, in whole or in part, previous to the granting of said order.
    2- Same—Waiver.
    The return of the execution is not waived by the judgment debtor’s appearing and submitting to an examination under the order without objection.
    8. Same.
    Where a fact necessary to give a tribunal jurisdiction does not exist, the defect cannot be waived, or consent cannot confer jurisdiction not vested by law.
    Appeal from,an order, adjudging defendant guilty of contempt, in having disposed of his property in violation of an injunction ordered in supplementary proceedings, issued under section 2435 of the Code.
    Charles J. Pierson, for app’lt; P. M. Brown, for resp’t.
   BOTTY, J.

—The order for the examination of the appellant as a judgment debtor in proceedings supplementary to execution, whereby he was forbidden to transfer or make any other disposition of his property, etc., was based on an affidavit showing, among other things, that an execution was duly issued to the sheriff of the county of New York upon a judgment recovered by the respondent, and that said sheriff has returned said execution wholly unsatisfied. On the return day of the order the said appellant appeared and obtained an adjournment of the proceedings, and on such adjourned day he submitted himself to an examination, and was accordingly examined. The examination discloses the fact that, on the very day of his examination under said order, he collected a claim of $1,000 due him from Cornell & Co. for a stone crushed which he had"sold to them previous to the granting and service of said order for his examination, and that he disposed of the money so received by him by applying the same towards the paying of debts other than the claim of the respondent in this action.

Assuming that the proceedings for the appellant’s examination were regular, and that the court had jurisdiction of the subject-matter as well as the person of the appellant, such a disposition of his property was clearly in violation of the injunction order, and rendered him liable to punishment-as for a contempt of court; but the appellant, on the motion to punish him for such contempt, objected to the jurisdiction of the court, upon the ground that the execution which had been issued had not been returned at the time the order for his examination was obtained. This objection; if tenable, is fatal to respondent’s proceeding. To entitle a judgment creditor to an order for the examination of a judgment debt- or, he must proceed either under the provision of section 2435 of the Code of Civil Procedure or section 2436 of the Code of Civil Procedure. Under the latter section he may examine a judgment debtor after the issuing of an execution against property, and before the return thereof, upon proof, by affidavit, that the judgment debtor had property which he unjustly refuses to apply towards the satisfaction of the judgment; whereas, under section 2435 of the Code, he.may examine the judgment debtor after the return, wholly or partly unsatisfied, of an execution against property. The plaintiff proceeded under section 2435 of the Code of Civil Procedure, and to confer jurisdiction upon the judge granting the order it was absolutely essential that the execution should have been returned unsatisfied, in whole or in part, previous to the granting of said order. The fact, however, appears to be, as shown by appellant’s affidavit in opposition to the motion to punish for contempt of court for a violation of said order, that said execution had not been returned by the sheriff at the time of the issuing of the order and examination of appellant. This being so, the order for appellant’s examination as a judgment debtor in proceedings supplementary to execution was null and void, as-til e judge had no jurisdiction to grant the same.

The respondent, however, contends that, inasmuch as to the judgment debtor appeared and submited to an examination under said order, without objection, he thereby waived all objections to the regularity of the proceedings. Ordinarily this would be so, but jurisdictional defects are not thus waived. The distinction is-this: Where a fact material to the jurisdiction really exists, though erroneously, or not at all, set forth in the proof, or where a tribunal can have jurisdiction of a given subject-matter because all the essential facts for that exist, although the order or process bringing the same before it may be erroneous, such defect may be waived by the adverse party, and is waived when he fails to object on that ground at the first opportunity, but submits to the direction of the officer who has, or assumes to take, charge of the proceeding. But, where a fact necessary to give a tribunal jurisdiction—as, in this case, viz. the return of an execution wholly or partly unsatisfied—does no exist, the defect cannot be waived; for consent cannot confer jurisdiction not vested by law. The objection can be taken at any time. Sackett v. Newton, 10 How. Prac. 560; Engle v. Bonneau, 2 Sandf. 679; Dudley v. Mayhew, 3 N. Y. 9; Beach v. Nixon, 9 N.Y. 35. It therefore follows that the order adjudging the appellant (judgment debtor; guilty of contempt of court for violating the said injunction order in supplementary proceedings, which as has been shown, is null and void for for want of jurisdiction, must be reversed.

Order appealed from reversed, without costs.


text:
    Publishers’ Printing Company, Resp’t, v. Gillen Printing Company, App’lt.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    1. Attorney and client—Lien—Compromise.
    Where plaintiff’s attorney enters a judgment by default after the parties, without his knowledge, have compromised the action, he may enforce payment of his costs and disbursements by execution issued on the judgment, and a motion to set aside the judgment will be denied.
    Appeal from an order, denying defendant’s motion to vacate and set aside a judgment by default, together with the execution issued thereon, unless he should pay to plaintiff’s attorney the costs and disbursements of the action, besides the sheriff’s fees, and that, in default of the payment of sucli costs and disbursements, plaintiff be at liberty to collect the same by levy and sale under the execution.
    Smith & Cochrane, for app’lt; David Solomon, for resp’t.
   BOTTY, J.

—This action was brought to recover the sum of §291.07 for work, labor, and services rendered, and materials furnished, the. defendant. The summons and complaint were served on defendant on November 9, 1895. The time to answer expired on November 15th. On November 16th the plaintiff’s attorney, not aware that any settlement of the action had been effected between the parties, and the defendant having made default in appearing and answering, entered judgment by default for the amount of the plaintiff’s claim and interest, viz. $291.85, and $20.96, costs and disbursements,—total,$312.-81,—and issued execution thereon. The defendant then moved at special term to vacate and set aside said judgment and execution, on the ground that, on November 15th (on the day when the time to answer expired), the defendant had paid to plaintiff the sum of $291.00 in full settlement of the action, and the plaintiff and defendant had entered into a stipulation to discontinue the action, without costs to either party as against the other. The court made an order denying the motion, unless the defendant paid the plaintiff’s attorney the sum of $20.96 costs, and also the sum of $27.64, sheriff’s fees, incurred under the execution, and directed that, on payment of the same, the judgment be satisfied, and, in default of' payment of such costs and disbursements, plaintiff be at liberty to collect the same by levy and sale under the execution Issued in this action.

In view of the fact that plaintiff’s attorney had no notice of the settlement of the action, I think it was both regular and proper to enter up judgment. The defendant, having settled with the plaintiff without notice to the attorney, did so at his own risk. Such a settlement cannot affect the rights or claims of the attorney upon his client’s cause of action for compensation, which are secured him by virtue of section 66 of the Code. It is well-settled rule of practice that the attorney’s lien for costs in an action is absolute, and he should be protected to the fullest extent in the enforcement of his right in the premises. Nothing could be gained by vacating the judgment, and then compelling plaintiff’s attorney to apply to the court for leave to prosecute the action for the enforcement of his claim for costs, which application, if granted, could only result, unless the attorney’s costs were paid, in a reentry of judgment in plaintiff’s favor, and the issuance of an execution thereon for the collection of the amount due the plaintiff's attorney for costs, etc. Under the circumstances, the order made at special term, in so far as it protects the attorney for the enforcement of liis claim for costs and disbursements, incurred for sheriff’s fees, etc., was proper.

Order appealed from affirmed, with costs.


text:
    Rudolph Horrman, App’lt, v. Alexander Neuman, Resp’t.

      (New York City Court, General Term,

      Filed January 28, 1896.)

    Tbial—J uby—Communication.
    The refusal of the trial court, in the absence of counsel, to answer a, question asked by the jury after their retirement, is not a communication between court and jury.
    Appeal from an order denying a motion for a new trial.
    Thompson & Allen, for app’lt; Oppenheim & Oppenheim, for resp’t.
   CONLAN, J.

— Appeal from "an order denying the motion for a new trial. It appears from the printed case that, after the jury liad retired to deliberate, one of the number sent, by an officer in charge, two questions to the court, asking further information on matters involved in the case. The court indorsed on the paper containing the questions “ that he had no further charge to make than as already charged,” and caused it to be returned to the jury. This was in the absence of counsel, and it is claimed on the part of the appellant that this was an error for which the judgment should be reversed. We do not think the point contended for is sustained by the authorities cited. In Taylor v. Betsford, 13 Johns. 487, the justice went into the room with the jury, at their request, and privately and apart from the parties, answered questions put to him by the jury. In Loan Co. v. Mix, 51 N. Y. 558, the court caused to be answered the inquiry, “ whether the witness Moffott proved positively on cross-examination that Harris did not leave the money on the counter,” by informing them that “ no such question was asked.” This was in the absence of the plaintiffs- and their counsel. In High v. Chick, 81 Hun, 100 ; 62 St. Rep. 626, the justice went into the juryroom, against the protest of counsel for the defendant, and closed the door behind him, and while there answered questions as to the effect of the verdict It will be seen that in all these cases there was some actual communication between the court and jury bearing on the matter submitted to them. In the case at bar, there was no communication! on the subject of the inquiry. The most that can be said is that-the court caused the information to be sent to the jnry that he declined to communicate. It is not incumbent on a party claiming an irregularity to show that the act complained of was prejudicial, but rather for the person claiming the regularity of the pi’oceedi'ng to show that it was not; but where it appears affirmatively' that it could not have affected the result, it is not a sufficient reason for directing a new trial. Mahoney v. Decker, 18 Hun, 365. The refusal of rhe court to instruct the jury in the-present case was within the exercise of sound discretion, and not-such an irregularity as to warrant the reversal of the judgment.

Order affirmed, with costs. -


author: HARDIN, P. J.

text:
    People, App’lt, v. Johh E. Salisbury, Resp’t.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed Feb’y 7, 1896.)

    1. Adulteration op milk—Evidence.
    In an action to recover a penalty for selling adulterated milk, brought under § 30, chapter 338 of 1893, defendant may show that there has-been no physical interference with the milk since it was taken from the- ■ cows, though the chemical analysis shows that it contained an excess of fluids.
    3. Same—Charge.
    A charge “that, if the jury find that the analysis was not made from a fair sample, then they have a right to disregard the analysis,” is proper.
    ' ) Appeal from an order striking out portions of the answer to the amended complaint.
    Charles D. Thomas, for the People ; J. W. Rayhill, for resp’t.
   HARDIN, P. J.

—Plaintiff’s complaint alleges that, on the 12th day of July,'1894, the defendant “supplied and brought, to be manufactured, to a cheese factory conducted by Henry Davis, situated and located in the town of Litchfield, Herkimer County, N. Y., adulterated milk,—milk containing more than eighty-eight per centum of water or fluids,—contrary to and in violation of” chapter 338 of the Laws' of 1893. The complaint contained several counts, and demanded judgment against the defendant for a penalty of $100. Plaintiff relies upon subdivisions 1-3 of section 20 of the act, which are as follows:

“ 1. Milk containing more than eighty-eight per centum of water or fluids. 2. Milk containing less than twelve per centum of milk solids. 3. Milk' containing less than three per centum of fats.

Upon the trial the plaintiff gave evidence that the defendant was a patron of the cheese factory conducted by Davis, and of the circumstances attending the delivery of milk on the 12th of July, 1894, by the defendant, at the said factory, Davis, the proprietor of the factory, detailed the circumstances attending the delivery of two cans of milk by the defendant, and he stated that, before any milk was taken out, the dipper was reached down in the milk, and given a stir around to mix it, when the samples were obtained for the purpose of analysis. Serafford, an agent of the agricultural department, was present when the sample was secured, and he detailed the circumstances under which the same was obtained, and, after obtaining the samples, he states that he delivered them to Dr. Theodore Deecke, the chemist, and he also states the manner in which the milk was secured from the weigh can, and the delivery of the quantity thus secured to Dr. Deecke for analysis. Dr. Deecke was called as a witness for the people, and testifies to the results of his examination of the milk so delivered to him. He says that he found, from the first determination, that it contained 11.117 per cent, of solids and 88.883 per cent, of water, and that he repeated the operation the second time ; and he adds:

“ There is nothing absolutely correct, and so, also," a chemical analysis is not; and therefore I repeated the process. .The second showed me 11.12 per cent, of solids and 88.88 per cent, of water. The third time I received 11.119 percent, of solids and 88.881 per cent, of water. The fat was ascertained after the milk had been evaporated.”-

Section 6 of the chapter referred to provides, viz.:

“ Every certificate duly signed and acknowledged, of a chemist, analyst or other expert employed by the commissioner of agriculture, or any analysis, examination or investigation made by such analyst, chemist or expert with respect to any matter or product which the commissioner has authority to examine or cause to be ^examined, shall be presumptive evidence of the facts therein stated.”

After Dr. Deecke had given his testimony in chief as to his examination, he was extensively cross-examined; and it is not apparent that the judge, at the trial, improperly exercised his discretion in allowing the questions propounded to Dr. Deecke in the course of the cross-examination. It is apparent, from the testimony of Dr. Deecke, that the milk in question was found by him to be but slightly below the standard prescribed in the statute. The plaintiff also called George Davis, a son of the proprietor of the factory, who testified as to the circumstances attending the obtaining of the sample for examination. When the plaintiff rested, no motion for a nonsuit was made. The defendant was placed upon the stand as a witness, and he testified that the milk of the night of the 11th of July was put in one can in a wagon near the barn, and that the milk of the morning of the 12th of July was put into another can in the same wagon. A question was then propounded to him as follows:

“Q. From the milking of the milk on the 11th, at night, until the milking of the morning of the 12th, what did you do, if anything, with the milk'in the can,—the night’s milk?’’

This question was objected to as incompetent, irrelevant, and immaterial, and the objections were overruled, and an exception taken by the plaintiff’s counsel. The witness answered ;

“Nothing, only what I have answered,—stirred up, and the cover put on.”

We think no error was committed by the trial judge in receiving the answer to the question propounded. Other questions of somewhat similar purport were allowed to the defendant’s witnesses, tending to show that there had been no physical interference with the milk after it was drawn from the animals. We think no error was committed in receiving such evidence, bearing upon the issue that was presented by the pleadings.

At the Close of the evidence the learned trial judge determined that he would submit to the jury the question whether the sample was a fair one, and in the course of his charge he commented upon the evidence relating to that question; and at the close of his charge the defendant’s counsel aslced the court to charge “that if the jury find that the analysis was not made from a fair sample, then they have a right to disregard the analysis.” In response to that the court observed: “I so charge. I have so charged in substance already.” The plaintiff’s counsel took an exception. We think the exception presents no error.

The principal question involved in the case seems to have been considered by the late general term of the Fifth department in the case of People v. Hodnett, 68 Hun, 341, 51 St. Rep. 895, and we find no occasion to apply to the case in hand a different principle from that laid down in the case to which reference has been made. The foregoing views lead us to the conclusion that the verdict should be sustained.

Order and judgment affirmed, with costs.

All concur.


author: BARRETT, J.

text:
    Bank of the Metropolis, Resp’t, v. Edberhard Faber, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Statutes—Amendment.
    Where one act amends another so as to read as prescribed in the former, the repeal of the amendatory act does not revive the original law.
    S. Same.
    The intent of the legislature must, in such case, govern, when that intent is not the subject of mere conjecture, but is apparent from the language employed and from statutes in pari materia,—all read in the light of a purpose sought to be attained.

      3. Same.
    A legislative intent to revive a law, which has by legislative action been' wholly annihilated, is not alone sufficient to accomplish such revival, but there must be some legislative expression using language equivalent to a re-enactment.
    4. Same.
    The legislature, contemporaneously with the repeal of chapter 3 of 1893, substantially re-enacted § 30, chapter 564 of 1890 and continued it as amended by chapter 688 of 1893.
    5. Same.
    When the legislature repealed chapter 3 of 1893, the prior provision of chapter 30 of 1890 was, by the operation of § 31 of the Statutory Construction Act, expressly left in force; and it was at substantially the same moment amended by chapter 688 and, as thus amended, continues.
    Appeal from, an interlocutory judgment overruling a demurrer to the complaint.
    James J. Allen, for app’lt; D. M. Porter, for resp’t.
   BARRETT, J.

—The complaint alleges that on or about December 31, 1892, plaintiff became the owner and holder, before maturity and -for value, of a note made by the F. J. Kaldenberg Company, a domestic corporation, other than a moneyed or railroad corporation; that at no time during the year 1892, or prior to-the acquisition of said note by the plaintiff, did said company tile an annual report as required bylaw; and that during the whole of said period the defendant was a director of said company. It is demurred to, upon the ground that it does not state facts sufficient to constitute a cause of action. The reason assigned in support of the demurrer is that, despite the numerous acts making directors liable for debts of the corporation in default of the filing of an annual report, under none of them can the defendant be called to account in this case. A number of the statutes must be considered.

Chapter 564 of the Laws of 1890, the original stock corporation law, took effect May 1, 1891. It provided in section 30 for the -filing of an annual report and the liability of directors in default thereof, and superseded all requirements on this head in prior acts. Chapter 2 of the Laws of 1892, which took effect January 20, 1892, amended section 30 of this act so as to read as therein prescribed. .The general 'corporation law of 1892 (chapter 687) repealed chapter 2, and in its saving clause preserved only such rights and liabilities as had accrued prior to May 1, 1891. The stock corporation law of the same year (chapter 688) then proceeded to amend the act of 1890, and, among other sections, section 30, so as to read as therein prescribed. Upon this state of facts, the” appellant claims that chapter 2 of the laws of 1892, in effect, repealed section 30 of the act of 1890; that the repeal of 2 did not revive this section 30; and that the stock corporation law (chapter 688) only amended so much of the act of 1890 as was in existence. He argues that as section 30 of the act of 1890 was, in his view, nonexistent, there was nothing there to amend. From all this he deduces the conclusion that chapter 688 of the Laws of 1892, must, with regard to section 30, be deemed a new enactment, and thus that between the 1st day of May, 1891, when the act of 1890 went into effect, and the 18th day of May,-1892, when this chapter 688 became a law, there is a hiatus, through which his client escapes.

The rule is undoubtedly well settled that, where one act amends another so as to read as prescribed in the former, the repeal of the amendatory act does not revive the original law. People v. Supevisors of Montgomery Co., 67 N. Y. 109 ; People v. Wilmerding, 136 N. Y. 363: 49 St. Rep. 651. But this canon of construction is not absolute. It is subject to the other rule that the intent of the legislature must govern when that intent is not the subject of mere conjecture, but is apparent from the language employed, and from statutes in pari materia,—all read in the light of the purpose sought to be attained. Smith v. People, 47 N. Y. 330; People v. Clute, 50 N. Y. 451; In re Rochester Water Com’rs, 66 N. Y. 413. Smith v. People is an extreme illustration of the modification of the general rule. It was then held that section 120 of chapter 137 of the Laws of 1870, which expressly repealed three prior acts, nevertheléss did not abrogate provisions included in these three acts permitting the court of oyer and terminer to be held by a single justice of the supreme, court. This case was followed In re Rochester Water Com’rs, supra, where the rule that effect should be given to the intent rather than to the literal terms of an act thus emphasized. This modification of the general rule is of itself subject to the further doctrine that a legislative intent to revive a law which has by legislative action been wholly annihilated is not alone sufficient to accomplish such revival, but that there must be some legislative expression using language equivalent to a re-enactment. The question here, therefore, is whether the legislative intent to retain and continue section 30 of the act of 1890 has been adequately expressed ; or, to speak more accurately, whether the language employed is equivalent to a re-enactment. We think it is.

The appellant’s reasoning depends wholly upon his application of strict rules of construction to what he claims to be a series of isolated and independent laws. Therein lies its fallacy. The laws in question are not independent enactments. They are, it is true, separately numbered, and they have various titles.' But they are grouped together in close connection, and are part and parcel of the scheme of revision and consolidation prepared by the commissioners of statutory revision, and reported to the legislature at this very session of 1892. We find that this legislature authorized the secretary of state- to include the chapters of this revision in a separate volume (chapter 623). Indeed, this volume is wholly given up to the work of the commission. Thus, we have chapters 677 to 691, inclusive, all passed at the same session of- the legislature, all approved by the governor on the same day, and all part of the system of statutory revision and consolidation. It is impossible, therefore, to treat these chapters as independent" enactments, having no special relation to each other or to the general scheme of revision. They should, on the contrary, for the purpose of ascertaining the legislative intent, with regard to such a question as the present, be treated as one singe act. The chapters are separately numbered, and there was a systematic arrangement of subjects. This was convenient and orderly. But the totality constituted the report and the system. Bach act should consequently be read and construed as a part of the unit. When, therefore, the legislature repealed chapter 2 of its own laws, and at the same time, and, so to spealc, in the same breath, amended section 30 of the act of 1890, it, in effect, said that the ordinary canon of construction should not apply; that section 30 was in existence; and that it should be, and was, revived, and continued as amended by chapter 688. There was here but one definite purpose and one distinct act. Chapter 2 of the Laws of 1892 amended but a single section o£ the act of 1890. The commissioners amended and revised the entire act. To accomplish this clearly and conveniently, it was essential that all special amendments should be brushed aside, and that the original law should be directly examined and dealt with, first by the commissioners, and then by. the legislature. For this purpose,' and for this purpose only, the special amendment made by chapter 2 of the Laws of 1892 was repealed. It was treated for the purpose of the revision as though it had never been passed.

This would be the true construction of the acts in question even if the 'statutory construction law were not a part of the revision. We think, however, that the statutory construction law especially enacts the same rule. It is there provided (chapter 677, § 31) as follows:

“ The repeal hereafter or by this chapter of any provisions of a statute which amends a provision of a prior statute, leaves such prior provision in force, unless the amendatory statute be a substantial re-enactment of the statute amended.”

It is entirely clear that the amendatory act (chapter 2 of the Laws of 1892) is not a substantial re-enactment of section 30 of the act of 1890. The variations are numerous and material. What, then, is the language quoted but a legislative enactment that the repeal of the amendatory act (by chapter 687) leaves the prior provision (section 30 of the act of 1890) in force? It is contended that section 33 of the statutory construction law indi-, cates that this section 31 was not intended to apply to statutes passed at the same session of the legislature. This contention confuses repeal with construction. What section 33 provides is that nothing in the revision shall supersede or repeal by implication any law passed at the same session. But what of that? That simply retains the repeal. Section 31 provides for the construction to be given to the repeal. What was meant by section 33 was that, in accepting and enacting in bulk the general body of the revision, the legislature desired to make sure of the retention of all the special laws on cognate subjects which had been passed before the revision went into effect, and which had not been expressly repealed. It had no reference to the general laws embodied in the revision itself. We'have examined Ottman & Co. v. Hoffman, 7 Misc. Rep. 714; 58 St. Rep. 320, but we find nothing in that case which affects the conclusion at which we have arrived.

Our conclusion is that, contemporaneously with the repeal of chapter 2 of the Laws of 1892, the legislature substantially re-enacted section 30 of chapter 564 of the Laws of 1890, and continued it as amended by chapter 688 of the Laws of 1892. Our further conclusion is that, when the legislature repealed chapter 2 of the Laws of 1892, the prior provision of section 30 of the act of 4890 was, by the operation of section 31 of the statutory construction act, expressly left in force; and it was at substantially the same moment amended by chapter 688, and, as thus amended, continued.

It would not aid the appellant to contend that, even if the original section 30 were held to be revived by the repeal of the amendatory act, this would not make him liable, since it was the amendatory, and not the amended, act which imposed the liability upon him. We have discovered the legislative intent, namely, that the whole of chapter 564 of the Laws of 1890 and chapter 688 of the laws of 1892 should take the same course and have the same effect as though chapter 2 of the Laws of 1892 had never existed; and the amendment of the original stock law by the revising law retained all liabilities which had accrued under any law since the passage of the former. In re Prime, 136 N. Y. 347; 49 St. Rep. 658. This being the intent, it matters not under which law the defendant became liable. He would have been liable under the original law if the amendment - had not been passed, and all liabilities incurred under the amendment which would have been incurred if it had not been passed were retained when it was repealed. "We may add that the liability imposed by the revised law (chapter 688) is almost precisely the same as that which was imposed by the repealed law. The defendant is therefore held to no other or greater" responsibility than that which rested upon him throughout.

Liability such as is sued on here has already been enforced in a number of cases. Providence Steam and Gas Pipe Co. v. Connell, 86 Hun, 319 ; 67 St. Rep. 196 ; Novelty Manufacturing Co. v. Connell, 88 Hun, 254 ; 68 St. Rep. 697. The conclusion at which we have arrived makes it unnecessary to decide whether it would have been proper to follow these cases on the principle of stare decisis, in view of.the fact that the point here raised was not considered in them.

The judgment overruling the demurrer should be affirmed, with costs, with leave to the defendant to answer within twenty days from the entry of judgment upon payment of costs of the appeal and costs of the court below.

All concur.


text:
    Holmes, Booth and Hayden, Resp’t, v. Eberhard Faber, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.
    James J. Allen, for app’lt; D. M. Porter, for resp’ts.
   BARRETT, J.

—This case is similar in its facts to Bank v. Faber (previously decided) 37 N. Y. Supp. 423, and the result reached in that case controls this one also. The judgment overruling the demurrer should be affirmed, with costs, with leave to the defendant to answer within twenty days from entry of judgment, upon payment of the costs of the appeal and costs of the court below. • '

All concur.


text:
    Charles Leonard et al., Resp’ts, v. Eberhard Faber, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.
    James J. Allen, for app’lt; D. M. Porter, for resp’ts.
   BARRETT, J.

—This case is similar in its facts to Bank v. Faber (previously decided) 37 N. Y. Supp. 423, and the result reached in that case controls this one also. The judgment overruling the demurrer should be affirmed, with costs, with leave to the defendant to answer within twenty days from the entry of judgment, upon payment of costs of the appeal and costs of the court below.

All concur.


author: MCCARTHY, J.

text:
    National Wall-Paper Company, App’lt, v. Charles A. Gerlach, Resp’t.

      (New York City Court, General Term,

      Filed February 8, 1896.)

    1, Contempt—Supplementary proceedings—General assignment.
    A judgment debtor, in transferring and paying out moneys, and in executing and delivering a general assignment of his property, afterthe service of an order in supplementary proceedings containing an injunction forbidding him from transferring or otherwise disposing of his property, is guilty of contempt of court.
    2. Receiver—Supplementary proceedings—Bond.
    The appointment of a receiver in supplementary proceedings is not com. '• _ píete until his bond has been filed.

      3. Same.
    Such receiver must file his bond with the clerk, as provided by the statute, before he is authorized to act.
    Appeal from a judgment, refusing to find defendant guilty of contempt for disposing of his property after he was enjoined in supplementary proceedings from so doing.
    Gayley, Baucus & Fleming, for app’lts ; George W. Carr, for resp’t.
   MCCARTHY, J.

—An examination of the testimony taken in these supplementary proceedings bears but one construction, and leads but to one conclusion,—that in transferring and paying out the moneys testified to, and in executing and delivering the general assignment of his property, by the defendant, after the service of an order in supplementary proceedings containing an injunction forbidding him from transferring or otherwise disposing of his property, he was and is guilty of contempt of court. It •was his voluntary act, and the plaintiffs were injured by the same, •since they had taken steps by which they would have procured .a lien on the estate, real and personal, of the judgment debtor. It matters not how slight the lien might have been, the judgment ■debtor could not assume the power to judge and determine the issue, and thus violate a positive order of the court, because, in his judgment, there was not enough to meet the creditors’ claim. He could not be the judge of this, but must leave it to be determined by the regular and orderly proceedings. The case of Canda v. Gollner, 73 Hun, 494 ; 56 St. Rep. 153, we think, is directly in point. See McCorkle v. Herrman, 117 N. Y. 297; 27 St. Rep. 333 ; Stevens v. Ogden, 130 N. Y. 185, 186 ; 41 St. Rep. 331.

It is claimed, however, that there was no contempt, because in a similar proceeding, on March 29, 1894, in which Ellen B. M. •Connolly was plaintiff, and this defendant was the defendant, a receiver was appointed ; but it is declared, and not contradicted, •xliat no bond fiad been filed in the office of the clerk of the city mid county of New York, as required by statute, and which requires that, before he (the receiver) enters upon the execution of the trust, be shall execute to the people of the state of New York a bond with sufficient sureties, to be approved by a justice of this court, and file said bond with the clerk of the city and county of New York, and that such powers as receiver, upon filing such bond, be invested with all the rights and powers as receiver, according to law, and the receiver’s appointment is not therefore complete until his bond is filed. The receiver’s title to the real ■estate is, at most, a qualified title in the nature of a security for the plaintiff in the judgment, and did not exhaust the title of the judgment debtor. Subject to the rights of the receiver to resort to the land to pay the judgment, the title remains in the judgment debtor. Moore v. Duffy, 74 Hun, 78, 80; 57 St. Rep. 746.

The defendant was therefore guilty of contempt, and the order appealed from is reversed, with costs, and the proceeding remitted to the special term, to fix amount of a fine sufficient to indemnify the plaintiffs for their loss and damage. The special term justice may allow, as an item of expense, a reasonable fee to the plaintiff’s attorney in these proceedings. People v. Rochester S. L. R. Co., 76 N. Y. 294, 301. All concur.


author: ARNOLD, S.

text:
    In the Matter of the petition by Barbara Ellensohn, for Revocation of Probate of the Will of Antoine Ruppaner, Deceased.

      (Surrogate's Court, New York County,

      Filed December 19, 1895.)

    1. Winns—Revocation of probate.
    The legislature, in enacting section 2653a, did not repeal the other sections of the Code providing for proceedings for revocation of probate, and. the intention appears to have been to embrace the provisions of section 2653a within the existing system, not to substitute it therefor.
    2. Same—Decision in supreme court.
    A party to a supreme court action, under such section, is hound by the judgment therein and is concluded from further questioning the validity of the will and its probate and further prosecution of a proceeding o n her part in the surrogate’s court for revocation of the probate.
    3. Same—Parties.
    The mere fact that necessary parties are not before the court on a trial, does not oust the court of jurisdiction so far as the persons are concerned who are made parties to the action, and the only effect of such omission is that the judgment is not binding upon a party who has been omitted.
    4. Same—Who may Maintain Proceeding.
    Under section 2647 of the Code, such proceeding must he brought by the husband or wife, heirs at law or. next of kin, who would share in the estate in case of intestacy, and not by one to whom a contingent interest is devised. '
    5. Same—Substitution of parties.
    Where the petitioner, in such a proceeding, is shown to he estopped from maintaining a proceeding because of a prior judgment to which he was a party, a respondent whose answer admits the allegation of the petition in respect to the validity of the will, cannot be substituted and allowed to continue the proceeding in the petitioner’s place.
    6. Same—Limitation.
    Under section 2648 of, the Code, the time limited for the revocation of probate of a will begins to ran from the date the decree was actually entered and filed with the clerk of the court where the probate proceedings were had.
    7. Same—Distribution—Conflict of laws.
    The succession to an intestate’s personal property is governed by the law of the actual domicile of the intestate at the timé of his death.
    Motion to dismiss proceedings for revocation of probate of a will. _____
    Isaac N. Miller, for petitioner; Lucius H. Canton, for proponent.
   ARNOLD, S.

—This is a proceeding for revocation of probate of the will of the decedent, under section 2647 of the,Code. The sole petitioner is Barbara Ellensohn, the half-sister of the testator, and a person interested in his estate. All the parties entitled thereto under section 2649 have been duly cited herein, and all oppose the revocation except one. Anna Kristof, an infant, who appears by guardian, and files an answer admitting the allegations of the petition in respect to the invalidity of the will. Upon the opening of the case, the respondents, with the exception above stated, moved for a dismissal of the proceedings upon grounds set forth in their respective answers. These are— First, that the proceeding was not commenced within the period limited by section 2648 of the Code; second, that the petitioner is estopped from maintaining such proceeding by reason of a judgment entered in an action to which she was a party, brought in the supreme court of this state by the executors of the will, under section 2658a of the Code, to determine the validity of the probate which is herein attacked, and which judgment established such validity. It appears from the judgment roll in such action, which is put in evidence here, that Barbara Ellensohn was made a party defendant in the action, was duly served with the summons therein, and appeared and answered by attorney, and is concluded by the-judgment, which adjudges that the will is valid. This action was brought within one year after the will had been admitted to probate. The legislature, in enacting section 2653a, did not repeal the other sections of the Code providing for proceeding for revocation of probate, and the intention appears to have been to embrace the provisions of section 2653a within the existing system, not to substitute it therefore. Long v. Rodgers, 79 Hun, 443; 61 St. Rep. 462.

It is expressly stated in that section that the verdict in an action brought thereunder shall be conclusive as to real or personal property, with exceptions which it is not claimed apply to this-case. As the petitioner herein was a party to and is bound by the judgment in the supreme court action, she is concluded from further questioning the validity of the will and its probate, and further prosecution of the proceeding on her part in this court for revocation of the probate would be futile. In re Peaslee’s Will, 73 Hun, 113; In re Soule’s Will, 19 St. Rep. 532.

The petitioner, however, insists that the judgment is void because the plain tiEs in the action were permitted, by an order of the supreme court, to discontinue as against the infant defendant, Anna Kristof, the contention being that, as the statute provides that certain specified classes of persons must be made parties to actions brought under it, a trial could not be had until all such parties were regularly before the court, so as to be bound by any judgment entered therein. Opposition was made on behalf of the infant to the application fora discontinuance of the action against her, but the motion was granted; the court holding that the infant had no possible interest except under the testator’s will; that she was not one of the next of kin; and that her grandmother (the petitioner herein), who is a next of kin, was bound by the judgment. From the order entered on this motion no appeal was taken, but thereafter an application was made by the petitioner, Barbara Ellensohn, at special term, to vacate the said judgment establishing the will, upon the ground that the whole judgment should be vacated as to all the defendants, because it had been as to the said infant, that the latter had not been properly served, ■and that all proceedings at and after the trial were void, although participated in by the adult defendants; the claim being that the statute peremptorily requires that a trial shall not be had until all necessary parties are regularly before the court. This application, however, was denied, it being held that it had already been adjudged by the order discontinuing the action against the infant that the latter was not a necessary party; that question having been necessarily involved in the disposition of that matter. From the order entered denying the motion to vacate the judgment the petitioner appealed to the general term, which affirmed the order, holding that the mere fact that necessary parties are not before the court on trial does not oust the court of jurisdiction so far as the persons are concerned who are made parties to the action, and the only effect of such omission is that the judgment is not binding upon a party who has been omitted. Keyes v. Ellensohn, 82 Hun, 13; 63 St. Rep. 227. On appeal to the court of appeals the •order was again affirmed, without opinion. 144 N. Y. 700 ; 70 St. Rep. 866. It seems to be thus definitely established that even if the infant, Anna Kristof, was a necessary party to the action brought to establish the will, the omission to make her such party is not available to Mrs. Ellensohn for the purpose of attacking the judgment.

The guardian of the infant, nevertheless, contends that, even if the petitioner is estopped from maintaining the present proceeding by reason of this judgment, still his ward may continue the same by reason of her having by her answer admitted the allegations of the petition in respect to the invalidity of the will, and asked that the prayer of the petition be granted. This proposition is untenable. There is no provision of .law which authorizes the substitution of an assenting respondent in these proceedings, in the place of the petitioner. See In re Soule’s Will, 19 St. Rep. 532.

The infant was made a party to the proceedings solely by reason of the contingent interest devised to her by the will, and it is •quite apparent that she could not have instituted the proceeding for revocation herself, the only parties who are entitled to maintain such a proceeding being those interested in the estate—that is, the husband and wife, heirs at law, or next of kin, who would share in the estate in case of intestacy—the proceeding being one to remove the obstacle presented to such distribution by the existence of the will. In order to overcome this difficulty, the guardian has put in evidence the laws of Austro-Hungary, where the minor, as well as her parents and her grandmother, Mrs. Ellensohn, reside, from which it appears that there is a limitation on the right of parents in that country to disinherit their children, except under certain prescribed conditions; and he claims that, therefore, his ward has an interest in the estate which must at some future period come to her through her said grandmother. But the succession to an intestate’s personal property (and this testator’s estate exclusively consisted of personal property) is governed by the law of the actual domicile of the intestate at the time of bis death; and it devolves upon those entitled to take it as next of kin, according to the law of such actual domicile; and, as the decedent was at the time of his death an actual resident of and domiciled within the state of New York, the laws of that state in respect to such succession must prevail, and under those laws the said infant would not, in case the testator died intestate, be entitled to any interest whatever in his estate. Code, § 2694.

The first ground upon which the motion to dismiss is made is, also, I think, well taken. It is claimed on the part of the petitioner that she filed her petition within one year after the recording of the decree admitting the will to probate, and this she insists is the date when the record of the probate proceeding was remitted from the court of common pleas (where that proceeding was had) to and filed in this court. The decree admitting the will to probate was actually entered and filed in the office of the clerk of the court of common pleas, more than a year before the filing of. the petition ; and I am of opinion that any proceeding for the revocation of such probate should have been initiated within one year thereafter, and it is conceded that this has not been done here. The motion to dismiss the proceeding is granted.


author: ADAMS, J.

text:
    John C. Rich et al., Resp'ts, v. William B. Tiffany et al., Deft’s. Congregational Educational Society, App’lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed February 7, 1896.)

    1. Wills—Right to contest validity.
    The heirs at law of a testator are entitled, by reason of their relation, to avail themselves of the provisions of chapter 360 of 1860, however remote their relationship may be.
    2. Same.
    Whether a will, which gives to testator’s wife for life the income of the estate, with power to the executors to devote such part of the corpus of the estate to her support as they judge proper, with remainder to charitable corporations, violates chapter 360 of 1860, is a matter for computation after the death of the wife.
    Appeal from a judgment in favor of plaintiff.
    The undisputed facts in this case show that one Jonathan C. Taylor, who resided in the city of Rochester, died upon the 13th day of February, 1891, leaving a last will and testament and also a codicil thereto. By the provisions of his will he directed his executors to pay his just debts and funeral expenses, and to erect suitable gravestones to mark the final resting place of himself and his wife, Harriet A.' M. Taylor, if she should survive him. He also gave to his wife, for and during the term of her natural life, the income and profit of his estate, both real and personal, but provided that, in case such income and profit were insufficient to afford his wife a proper and suitable support and maintenance, his executors could sell and dispose of so much of his personal and and real estate as might be necessary to provide for her personal • comfort during her lifetime. He also gave, after the death of his wife, the sum of $1,000 to the First Congregational church and society of Northbridge, Mass., but by his codicil this bequest was changed into a devise of a certain wood lot, which he owned, in Sutton, Worcester county, Mass., the value of which is conceded to be $750. All the rest and residue of his estate, both real and persona], he gave to the American College and Education Society, which is the same corporation known as the “ Congregational Education Society,” its name having been changed by chapter 81 of the Acts and Resolves of Massachusetts for the year 1894. Mrs. Taylor, who was seventy years," six months, and sixteen days old at the death of her.husband, survived the latter for a period of about three years. During her widowhood the executors expended for her support and maintenance nearly $1,175 each year, about $300 of which sum was derived from the net income of the estate, which consisted, in the main, of two houses and lots in the city of Rochester, valued at about $8,000 each, and upon one of which there was a mortgage incumbrance of $2,900. The testator died leaving neither father, mother, brother, sister, nor child ; nor the descendant of any child; and this action is brought by the plaintiffs, who, with the defendants other than the two corporations, are 'the heirs at law of Mr. Taylor, to obtain partition of the real estate of which he died seised, upon the theory that the defendant the Congregational Society is not entitled to take the entire residuum of his estate under the fifth clause of his will, for the reason that it is in violation of the statute of 1860.
    Horace McGuire, for app’lt; Charles A. Widener, for resp’t Rich et al.; Charles M. Williams, for resp’t Congregational Church and Society.
   ADAMS, J.

—The facts above recited seem to present two questions for our consideration, and these are : First, is this will, so far as the devise of the appellant is concerned, within the condemnation of chapter 360 of the Laws of 1860 ? and, second, did the court below adopt the correct method of ascertaining that fact? It is conceded by all the parties that the appellant- is one of the corporations referred to in the statute just mentioned, which reads as follows

“ No person having a husband, wife, child or parent shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society,' association or corporation, in trust or otherwise, more than one-half part of his or her estate after the payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half and no more. ”

As has been stated, the testator left a wife, but none of the other kindred specifically mentioned in this statute ; and the first query which presents itself to our minds is whether or not the respondents, whose relationship to the testator was very remote, are in a position to avail themselves of its provisions. In the case of Church of Redemption v. Grace Church, 68 N. Y. 570, 582, it was held that, to enable a person to make inquiry into an excess on the part of a corporation in its accumulation, he must be in a position to claim an interest in the property, if it is adjudged that the corporation may not. And in discussing the same question, which arose under the statute of 1848, RAPALLO, J., in the case Stephenson v. Short, 92 N. Y. 433-441, says:

Conceding that the purpose of the two-months’ clause is to prevent the testator, when in extremis, from devoting his estate to charitable or religious purposes, to the disinheriting of his kindred and heirs, and that it is intended for their protection, we find nothing to indicate that it ever was the policy of the legislature of this state to confine that protection to the wife, children, or parents of the testator.”

We also discover that this question has been expressly adjudicated in at least two instances, by the supreme court of this state, (Harris v. Slaght, 46 Barb. 470 ; McKeown v. Officer, 25 St. Rep. 319), and that, in the case last cited,-an appeal to the court of appeals was dismissed without any expression of disapproval by that court of the conclusion reached by the court below upon this feature of the case, 127 N. Y. 687 ; 40 St. Rep. 223. In the Fayerweather will case (Trustees v. Ritch, 36 N. Y. Supp. 576), recently decided by the general term of the first department, the learned presiding justice appears to entertain a different view of the scope and meaning of this statute; but, inasmuch as the view expressed by him was not necessary to the decision of that case, it cannot be regarded as an authority in conflict with those already cited.

We conclude, therefore, that the respondents, inasmuch as they are the heirs at law of the testator, having an interest in his estate, provided they make good their contention, are entitled, by reason of their relation, to avail themselves of the provisions of the statute in question, however remote their relationship may have been. Having reached this conclusion, we are unable to discover any error in the method adopted by the learned referee in determining the value of the testator’s estate. Had the testator given to his wife simply a life estate, with the remainder over tú the appellant, the rule contended for by the learned counsel for that corporation would, *" undoubtedly, have been the correct one to have applied, because, in that case, it would have been proper to have ascertained the value of the testator’s estate at the time, of his death, and also the value of the life estate, which was easily ascertainable by the aid of the annuity tables.. Hollis v. Theological Seminary, 95 N. Y. 166. But here the testator not only left his widow a life estate, but he gave to his executors discretionary power to devote such portion of the corpus of the estate as, in their judgment, would be reasonable for her proper support and maintenance. What portion was necessary or proper for that purpose could only be ascertained by experience, and it follows, therefore, that a computation must necessarily be deferred until the death of the widow, because no^ possible basis could be furnished therefor at any previous time. At all events, the late general term of the fifth department, in Re Teed, 59 Hun, 63 ; 35 St. Rep. 531, and 76 Hun, 567 ; 58 St. Rep. 235, established the rule adopted by the referee, in a case the circumstances of which were very similar to those in the present case, and we are content to follow the rule there established.

The views thus expressed lead to an affirmance of the judgment appealed from, with costs to the respondents to be paid out of the estate; and, inasmuch as the appeal, so far as it affected the Congregational church and society, was expressly waived upon the argument, we think that that respondent should also have a separate bill of costs from the same source.

Judgment affirmed, with costs to the plaintiffs (respondents), to be paid out of the estate, and a bill of costs to the Congregational church and society, also payable out of the estate.

All concur.


text:
    Catharine A. Whitlock, Resp’t, v. Town of Brighton, App’lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed Feb’ry 7, 1896.)

    1. Towns—Liability,
    It is incumbent upon a town, through its commissioner of highways, to-employ all reasonable efforts to keep its highways and. bridges in a proper state of repair.
    2. Same—Want of funds to bepaib.
    Though the complaint contains an allegation that the commissioner of highways has in his possession adequate funds, or the means to procure the same, to defray the expense of proper repairs to a bridge, it does not require that the party injured should affirmatively establish the facts pleaded.
    3. Same. To relieve the town from liability to one who has been injured by neglect of its highway commissioner to repair a defect known by him to exist in a. public highway, it is not sufficient to show that the commissioner had no funds in his possession wherewith to cause the necessary repairs to be made, but it must also be shown that he had sought, through the proper channels, to procure the same.
    4. Same.
    The statute enables the commissioner, with the consent of the town hoard, to make such repairs as are necessary to the highways and bridges within his territorial jurisdiction, though he has no funds available therefor.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    On the 21st day of January, 1893, the plaintiff was walking along one of the highways in the town of Brighton. There had been a heavy fall of snow the night before, reinforcing snow already upon the ground; and, as she reached a bridge over one of the streams crossing the highway upon which she was walking, she was overtaken by a gentleman in a sleigh, driving his horse upon a trot. As she stepped out of the beaten path to allow him to pass, her foot and leg passed through a hole in the bridge, and she received the injuries of which she complains. The hole detained, her leg in the bridge so that she could only be released therefrom by the gentleman’s going to the neighbors, and obtaining an ax and cutting away a portion of the wood of the bridge. The evidence tended to show that the hole had continued in the bridge, in practically the same condition as it was at the time of this injury,, since some time in the fall of 1891, and that the commissioner had been notified of its existence, and the necessity of reparation. It also appeared that after the plaintiff’s injuries an abcess formed upon the injured member, which was subsequently lanced, but it continued to discharge, and was treated by a physician for nearly two months, and that during the greater portion of that time she was confined to her bed, and suffered to such an extent that at one time her life was despaired of.
    Theodore Bacon, for app’lt; William F. Cogswell, for resp’t.
   ADAMS, J.

—It was incumbent upon the defendant, through its commissioner of highways, to employ all reasonable efforts to keep its highways and bridges in a proper state of repair; and this action is brought uptin the theory that the defendant has been guilty of an omission of its duty in this regard. The question of the defendant’s negligence, as well as that of any want of care om the part of the plaintiff which may have contributed to the injury of which she complains, was submitted to the jury, as was also the-question of the extent of the plaintiff’s injuries; and, as- the evidence in the case is ample to justify the conclusion reached, their verdict must be regarded as controlling upon these issues. Several questions, however, are presented upon this appeal which arise upon exceptions taken during the progress of the trial, and more particularly to certain portions of the charge of the learned trial justice, and' to his refusal to charge in accordance with the various requests made by the defendant’s counsel.

The exception upon which the defendant apparently relies with some confidence, and the only one which we think requires any especial consideration from this court, is that which relates to what was. said by the trial justice in regard to the liability of the defendant, in view of the fact that it was claimed the evidence showed the commissioner was not in possession of any funds available for highway reparation, although it is quite likely that the same question was involved in the defendant's motion for" the dismissal of the complaint at the close of the evidence. It appears that the plaintiff’s complaint contains an allegation that the commissioner of highways had in his possession adequate funds, or the means to procure the same, to defray the expense of proper repairs to the bridge in question. This, however, did not require that the plaintiff should affirmatively establish the facts pleaded, because, as had been repeatedly held, the want of funds or the means of procuring the same is always a matter of defense. Bidwell v. Town of Murray, 40 Hun, 190 ; Getty v. Town of Hamlin, 46 Hun, 1 ; 11 St. Rep. 96 ; Hover v. Barkhoof, 44 N. Y. 113-118 ; Clapper v. Town of Waterford, 131 N. Y. 382 ; 43 St. Rep. 316. In other words, to relieve the defendant from liability to one who has been injured by neglect of its highway commissioner to repair a defect known by him to exist in a public highway, it is not sufficient to show that the'commissioner had no funds in his/possession wherewith to cause the necessary repairs to be made, but it must also be shown that he had sought, through the proper channels, to procure the same. It did appear upon the trial of this action that at the time this accident occurred the commissioner was not in possession of any funds with which to repair the defect in this bridge; but it also appeared that the defect had existed for upward of a year prior to the accident, and that the commissioner had actual knowledge of its existence. With these facts established, it is hardly sufficient to say that the necessary funds were lacking at the time the plaintiff received her injury, for it is manifest that at some time during the existence of this defect—that is, within a year preceding the accident—the commissioner must have been possessed of ample means to repair the same; and this, of itself, ’ would seem to be a perfect and complete answer to the claim which is now made. • But, were this not the case, the opportunity to obtain sufficient funds for such purpose was clearly available to him. The learned trial justice, in that portion of his charge which is criticised, said to the jury that where a commissioner discovered that a bridge needed repairing, and had no funds in his hands for that purpose, he might apply to the town board for permission to repair it, and, if the town board gave its permission, he might pledge the credit of the town for such repairs. Strictly speaking, the last part of this statement was possibly a trifle inaccurate, but the court doubtless had in mind the provisions of the statute which enable the commissioner, with the consent of the town board, to make such repairs as are necessary to the highways and bridges within his territorial jurisdiciion, although he has no funds available therefor; and, had he taken this step, the expenditure made by him would have been a claim against the town, which it would have been obliged to reimburse him for. Laws 1890, c. 568, § 10, as amended by Laws 1892, c. 686, p. 2183. Thus, it will be seen that practically the credit of the town is pledged for the expense of necessary repairs. Having this means at his command, it was obligatory upon the defendant to show that he had availed himself of it; and, failing so to do, it was clearly a neglect of a duty which was owing to this plaintiff, as well as to every other person who had occasion to travel over this bridge. Warren v. Clement, 24 Hun, 472, and cases were cited, We conclude, therefore, that the learned trial justiec com-' mitted no error in submitting this question to the jury, and that no sufficient reason is presented for disturbing the verdict rendered. The judgment and the order appealed from should consequently be affirmed.

Judgment and order affirmed, with costs. All concur.


author: CULLEN, J.

text:
    Mary A. Archibald, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    1. Ejectment—Defense.
    The plaintiff’s right to recover, in an action of ejectment, cannot be defeated by the fact that the defendant has abandoned possession of the premises after the action was brought.
    S. Adverse possession—Constructive.
    Section 369 of the Code does not apply to a grant to a railroad company of land under water, consisting of a series of strips extending a distance of 140 miles, but the adverse possession will in such case he confined to
    , the portion,actually occupied by the grantee
    3. Tenants in common—Eights of cotenants.
    Where a railroad company, pending an action to remove its tracks from certain land, acquires an undivided interest in the laud, a judgment directing the removal of the tracks is erroneous, as neither party has a right to exclusive possession.
    Appeal from a judgment in favor of plaintiff,
    Frank Loomis, for app’lt; R. E. & A. J. Prime and Mr. Burns, for resp’t.
   CULLEN, J.

—This action is, or to speak more accurately, should be, in ejectment to recover the possession of two plots or parcels of land adjacent to the line of defendant’s railroad, one on the easterly side and the other on the westerly side. The plaintiff, besides seeking to recover possession of the premises, also sought, as equitable relief, that the defendant should be decreed to remove its tracks and structures, and restrained from further maintaining them. No objection was taken as to the form of the action, and no complaint is made as to the equitable relief granted, except as to the first parcel, and that not based on the question of the form of the action, but on the respective rights of the parties as tenants in common. This objection will be noticed hereafter.

The' defendant, by its answer, did not deny the plaintiff’s title to the second or westerly plot, but it denied that it was in possession thereof or claimed title thereto. The evidence on this subject shows that, at the time of the commencement of the action, the defendant at least maintained on the premises a flagman’s shanty. This was sufficient to justify the institution of the action, and the fact that the defendant abandoned its possession, by removing the shanty, subsequent to the corn-commencement of the action, could not defeat the plaintiff’s right to recover. The plaintiff alleged title to an undivided half of the first or easterly plot. The defendant denied the title of the plaintiff, and set up title in itself to the whole plot. It is unnecessary to recite at length the plaintiff’s chain of title. It is exactly of the same character as the title of the defendant” in the case of N. Y. C. & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83; 48 St. Rep. 373. The land was originally under water, the defendant’s railroad at this point being constructed in the river. The record title under which the defendant claims is the same grant as that discussed in the case cited. The title of the plaintiff in this case, like that of the defendant in the case cited, is deduced from a grant of the land commissioners, antedating the grant to the railroad company. The rights of the respective parties under these sources of title have been definitely settled by the decision of the court of appeals in the Aldridge Case, and the decision in- the case of Saunders v. N. Y. C. & H. R. R. R. Co., 135 N. Y. 613; 48 St. Rep. 381. I see no criticism to be made on the chain of plaintiff’s title, save the claim that the later deeds were void for champerty. The only ground which- is now left open to the defendant, on which to sustain its own title, is that of adverse possession. The learned trial court found the fact, against- the defendant on this claim. An examination of the evidence not only justifies this finding of the trial court, but shows that, on the conceded facts, the finding could not have been otherwise. To make out the claim of adverse possession it was necessary for the defendant to show continuous occupation and possession, for a period of twenty years, of the premises in dispute. Assuming that it went into possession of the property, by filling it in, when it built its station in this part of the town it erected a fence along its old right of way and the limit of the premises to which it had title by conveyance. The only structure to the east of that line was the ticket office, which was situate to the south of the lands in dispute. Thus, during all the time that the station was maintained, a period of seven or eight years, the defendant had no occupation of this land. On the removal of the station, a freight house was erected on the site of the old ticket office, and, of course, this building also was - not on the locus in quo. In fact, the evidence shows that there was no physical pessession of the lands in dispute from the time of the erection of the station until the defendant laid a track and erected a derrick on the lands. The time of this entry by the defendant is not distinctly settled by the testimony of any witness. The closest approximation to the time is given by one of the plaintiff’s witnesses, who fixes it as after the first deed .to the plaintiff. Adverse possession is an affirmative defense, and it was incumbent on the defendant to show clearly the time during which it was in occupation of the premises. But, during the seven or- eight years that the station was maintained at this point, clearly it was not in possession of the premises in suit, and this period alone is sufficient to destroy its claim of twenty years’ possession. The only answer that can be made to this is that, under section 369 of the Code, -under an occupation of some part of the premises described in a written instrument, all the premises included in it are deemed to have been held adversely, and hence it is claipied that the occupation by the defendant of the land to the south, by the construction of its freight and ticket depot, and its construction of tracks, was in law an occupation of the premises in dispute. This rule has no application to possession or occupation under a grant of the nature of that to the defendant. The grant assumed to convey to the defendant all the plots of land shown on the new map of the route of its railway from Westchester county to Rensselaer, both inclusive. While the conveyance mentions “ lots,” the map of the defendant, on which the conveyance was based, so far as put in evidence in this case, shows that there were no plots, but a single continuous strip from headland to headland. If so, it is a series of strips extending about 140 miles along the Hudson river. Under the defendant’s claim, an occupation of the land at Yonkers would operate as an adverse possession, in its favor, of land at Troy. The language of this provision of the Code is misleading. If it is to be construed that the occupation of a portion of the premises described in a conveyance operates as constructive possession of the whole,, regardless of the character of the land and the connection of various parts of it, one with the other, it would be entirely possible, not only that two, but twenty, persons could establish an irrefragable title at law, by adverse possession, to the same plot, which had never been in the actual possession of any one of them ; and it would be difficult, if not impossible, to determine to which of the parties possession should be awarded. The difficulty thus suggested is not imaginary. It occurred in the case of Northport R. E. & Improvement Co. v. Hendrickson, 139 N. Y. 440; 54 St. Rep. 934. B. owned a farm, and conveyed a strip of it to an adjoining neighbor Br. Br. conveyed this strip with his own farm, which it abutted, and through mesne conveyances the title finally vested in the defendant. B., after his conveyance to Br., ignoring that deed, conveyed his whole farm to H., and by a series of conveyances that title was vested in the plaintiff. Each party and his predecessors had continuously occupied the land respectively conveyed to them, except the premises in dispute, which consisted of a piece of woodland. Each, therefore, claimed that he was in constructive possession of such strip. The case was decided in favor of the defendant, on the ground that, before the plaintiff took its title, the tract claimed by the defendant had been occupied and managed as a separate tract. The court say; “ The case is not free from doubt, but we think the best reason can be assigned for the affirmance of the judgment, and it therefore should be affirmed,”— a frank'acknowledgment of the' difficulty created by the statute. There is, however, another case to be noted, on the question of constructive possession,—that of Thompson v. Burhans, twice in the court of appeals (61 N. Y. 53, and 79 id. 93). The plaintiff claimed under a tax sale of some 25,000 acres, and entered into possession of a few acres, and cut logs there, and built a shanty. The same learned judge that delivered the opinion in the Hendrickson Case wrote in this: •

“ But it is claimed by the plaintiff that his possession in the southeast quarter, under his deed claiming title to the whole, gave him constructive possession of the whole. This claim is not sustained by any authority, and not well founded. This township of over 25,000 acres was not one farm. It never would and never could be used as such. The balance of the whole township was not, and could not be used in connection with the cleared portion for any purpose appertaining thereto. The furthest that any case has gone which has come under my notice is to hold that where a person claims title under a deed, and thus has color of title to a farm, or a lot of proper size to be possessed for a farm, or to be managed or used in a body, according to the custom and business of the country in which it is situated, and is in possession of a portion of the same, then he is constructively in possession of the whole. This rule has never been applied to a tract of land containing thousands of acres.”

The rule thus enunciated must be held to govern any possession or occupation under the defendant’s grant. From its enormous extent, and the character of the lands granted, lying under water the premises could not be used, cultivated, improved, or occupied as an entirety. Any adverse possession that the defendant has acquired under such a grant must be strictly confined to so much of the lands granted as it has been in actual, physical occupation of.

The testimony of one of the witnesses for the plaintiff shows that the first physical occupation of any part of the locus in quo was after the deed from Mary E. Burr to the plaintiff. Hence, that deed of conveyance, if the witness was credited, was not champertous. If the subsequent deeds of the plaintiff to Kniffen, and Kniffen back to the plaintiff, be regarded as champertous, of course the only effect is that the plaintiff may stand on the title acquired by her from the conveyance by Burr. We think, however, that so much of the judgment as directs the defendant to remove from the first piece of land all tracks, derricks, and other buildings and contrivances is erroneous. The defendant, pending the trial of the action, acquired the title of the plaintiff’s tenants in common, and thus at the time of the judgment was itself a tenant in common with the- plaintiff. Neither had the right to exclusive possession, and the defendant should be no more entirely ousted that the plaintiff. Because there are railroad appliance on the land, we do not see that that prevents -a common occupancy by the plaintiff. The case of Muldowney v. Railroad Co., 42 Hun, 444, does not support this judgment. ■ In that case the judgment did not turn the railroad company out, but, on the contrary, left it in sole possession, and decreed that it should pay an annual sum to the cotenant. Hence, in this respect, it entirely differs from the judgment before us. Nor is there any necessity for our seeking some new or extraordinary remedy for the plaintiff.

The very fact that the defendant occupies the land with tracks and railroad appliances puts it at the plaintiff’s mercy.

The judgment appealed from should be modified, by striking therefrom all provisions for the removal of defendant’s tracks and. appurtenances from parcel No. 1, as modified, affirmed, without costs.

All concur.