author: Macombee, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. BENJAMIN E. VALENTINE, Respondent, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK, Appellants.

      Power of the tax commissioners of the city of New Tork to remit taxes illegally imposed — section 672 of chapter 410 of 1882, as amendedby chapter 530 of 1885.
    Land owned by the relator, included within the lines of a street or avenue, known as Melrose avenue, as laid down upon the map filed by the commissioners of the department of public parks, pursuant to the provisions of'chapter 604 of 1874, was duly entered upon the books of the appellants for the purpose of taxation, in the city of New York, for the year 1885. After the property had been so listed, and on June 13, 1885, chapter 530 of 1885 was enacted, by which section 672 of the consolidated act was amended by adding thereto the following clause: “ No tax or assessment shall, after the passage of this act, be levied or assessed or collected upon any unimproved land included within the lines of streets, avenues, roads, public squares or places shown and laid out upon any map or maps filed by the commissioners of the department of public parks, pursuant to the provisions of chapter 604 of 1874, and the laws amendatory thereof, or of the act hereby amended.”
    After the passage of this amendment the respondents levied a tax upon the land in accordance with the valuation theretofore made upon it. Within six months from the completion of the tax, the relator applied to the defendants for a remission of the tax, and upon their refusal to remit the same, applied for and obtained a mandamus requiring them to entertain his application and discharge the tax.

      Held, that the order directing the writ to issue was proper and should be affirmed.

      People ex rel. New Tork Medical College v. Campbell (93 N. Y., 199) distinguished.
    Appeal from an order made at a Special Term directing a mandamus to issue.

      O. 8. Coleman, for the appellants.

      B. JE. Valentine, for the respondent.
   Macombee, J.:

This is an appeal from the order of the Special Term directing that a mandamus issue to the defendants, requiring them to entertain the application of the plaintiff for the remission of his tax and to discharge the same.

The relator and another person, for whom he is agent, own certain property included within the lines of the street or avenue, known as Melrose avenue, and which is laid down upon the map filed by the commissioners of the department of public parks, pursuant to the provisions of chapter 604 of the Laws of 1874. This land, now so included within the lines of Melrose avenue, was duly entered upon the books of the appellants for the purpose of taxation, in the city of New York, for the year 1885.

On the 13th day of June, 1885, but after the property had been so listed for assessment, chapter 530 of the Laws of 1885 was enacted, by which section 672 of the consolidated act was amended by adding the following clause: “ No tax or assessment shall, after the passage of this act, be levied, assessed or collected upon any unimproved land included within the lines of streets, avenues, roads, public squares or places shown and laid out upon any map or maps filed by the commissioners of the department of public parks, pursuant to the provisions of chapter 604 of the Laws of 1874, and the laws amendatory thereof, or of the act hereby amended.” Subsequently to the passage of this amendment the appellants levied a tax upon the land in question in accordance with the valuations theretofore made upon the land as listed for assessment. Within six months from the completion of the tax the plaintiff applied to the defendants for a remission of fhe tax and, the defendants refusing to remit the same, this proceeding was instituted.

It seems to us that the commissioners of taxes and assessments have a discretionary power under the consolidated act to entertain the application of the relator. Section 822 of the consolidated act declares: The commissioners of taxes and assessments are hereby invested with power to remit or reduce a tax imposed upon real or personal estate.” Thence follow in the same section general directions as to the manner of exercising such power. An ingenious argument has been made by the appellants’ counsel to the effect that, though this section seems to be clear and specific, it must be read in connection with chapter 410 of the Laws of 1867, by which the power of the commissioners of taxes and assessments appears to be restricted by section 4 of that act to cases where there is an error in entering the property upon the assessment-roll or books. The counsel cited us to the case of People ex rel. New York Medical College v. Campbell (93 N. Y., 199), by which it is claimed that section 4 of the Laws of 1867 still stands unrepealed.

The court held upon that question, that as the law stood at the time the case before them arose, a tax could be lawfully remitted only for cause, as where property was exempt from taxation or assessment.

The question, therefore, is not whether the legislation by which section 822 of the consolidated act was passed was wise or not, but it is rather what is the necessary construction to be given to that section and the section 4 of the Laws of 1867, as well as other preceding and subsequent statutes, not necessary now to be mentioned, which prescribed the mode and the cause for which a tax might be remitted by the commissioners. In the consolidated act, however, many of the preceding restrictions were retained, for instance, that the majority of the commissioners are required to agree before a tax can be remitted or reduced, and that a tax upon personal property cannot be remitted unless the applicant shall satisfy the commissioners that he was prevented by absence from the city, or by illness, from making his application within the time allowed for the correction of taxes, and that the application for any remission or reduction of taxes upon real property must be made within six months after the delivery of the books to the receiver of taxes for the collection of such tax.

There is, therefore, no ground now existing, as there was formerly, upon which only the commissioners were permitted to act, as, for instance, where the assessment was illegal or the property exem pt from taxation at the time of the entry of the property for assessment. Nevertheless, the action of the commissioners must be taken for good cause shown to them, and not from caprice. In the case before us, it would seem to be unfair upon the part of the city to insist upon the retention of this assessment and the collection of this tax, inasmuch as it has by its proper officers opened the land to the public, by declaring, in the most unequivocal manner, that it shall remain an avenue for the benefit of the public. It is a case where, by legislation subsequent to the listing of the property for taxation, it becomes inequitable and unfair for a municipal corporation to insist upon the collection of a tax by reason of its own action done without the knowledge of the relator, but which presumably was taken against his interest and consent.

"We are well satisfied that the court was justified in directing a peremptory mandamus to issue requiring the commissioners to consider the justice and propriety of the relator’s application with that fairness and impartiality with which every public officer is presumed to act, and to remit the tax upon the ground that the legislature had declared that taxes, upon real estate included within the lines of streets, shall not be collected where the proceedings for the levying of such tax had not become complete before the land was appropriated to the public use.

The relator’s application did not ash the commissioners to do an arbitrary and unlawful act, as in the case of the People ex rel. New York Medical College (93 N. Y., 199), but simply to exercise the power vested in them for a lawful purpose, and it is based upon high equitable considerations having the support of the statute already cited.

Nothing in our decision, or in that of the Special Term, can be properly so construed as to affect any claim for exemption from the payment of arrears of taxes for the years prior to 1885 on this property, or any other property similarly situated, under chapter 530 of the laws of that year.

The order of the Special Term should be affirmed, but under all the circumstances, without costs.

Brady, P. J., and Daniels, J., concurred.

Order affirmed, without costs.


source: Caselaw Access Project

author: Daniels, J.;

license: Public Domain

text:
    SAMUEL BINGHAM and Another, as Administrators, etc. of GEORGE S. MOULTON, Deceased, Respondents, v. THE MARINE NATIONAL BANK OF THE CITY OF NEW YORK and WALTER S. JOHNSTON, as Receiver, etc., Appellants.

      Actions by executors and administrators on contract made by them, — when tjjtey may bring them either in their representative or in their individual capacity as they may elect— Code of Civil Procedure, sec. 1814.
    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The verdict was recovered for the amount of a certificate of deposit issued by the Marine National Bank on the 14th of November, 1883. This certificate was in the usual form, stating that Samuel Bingham and Caroline F. Moulton, administrators of the estate of George S. Moulton, had deposited with the bank $50,000, payable to the order of themselves on the surrender of the certificate, with interest at the rate of four per cent per annum, provided that the deposit was not withdrawn within three days. Before and at the time when the money was deposited, which was done by a draft, the plaintiffs had been appointed administrators of the estate of George S. Moulton, by the Probate Court of Windham, in the State of Connecticut, and they were acting as such at the time when this deposit was made in the bank.
    After that and on the 17th of September, 1884, they applied for and received ancillary letters of administration from the surrogate of the city and county of New York, and afterwards brought this action against the bank and its receiver to recover this sum of money and the interest upon it, and that result was secured by the verdict of the jury.

      The court at General Term said: “ It has been urged in support of the appeal that as the action was in form brought by the plaintiffs, as administrators, under the authority of the letters issued to them in this State, it cannot be maintained inasmuch as the transaction upon which it depends had previously transpired. But the object of issuing the letters to them in this State was to authorize them to proceed as administrators in collecting the debts and securing the property of the estate, which might be situated, or owing in this State, and for that purpose all the authority acquired, under letters of administration issued in this State, was conferred upon these plaintiffs. (Code Civil Pro., § 2702.) And a part of that authority was the right to collect this demand, if in fact it was, as it appears to have been, a demand owing to the estate itself. But if the action was not regularly brought in this form by the plaintiffs, but should have been brought by them as individuals, still they are at liberty to maintain it, for all the facts essential for that purpose were set forth in their complaint. And that they had further stated the decease of the intestate and the issuing of the. letters to them as administrators, and the transaction with the bank in that capacity, in no manner deprived the plaintiffs of the right individually to maintain the action. All the facts disclosing their rights were fully set forth, and if the action should be by them as individuals, all that it is requisite to be made to appear for that object has been alleged and stated by the plaintiffs.
    “ It seems by their note to have been the design of the persons framing section 1811 of the Code of Civil Procedure to require actions, brought upon the transactions of the executors or administrators, to be prosecuted or maintained, in their representative capacity, but that design was not so expressed in this section as to require it to be carried into effect, for the causes of action there mentioned are those belonging to the executors or administrators, in their representative capacity, which, strictly speaking include only such causes of action as accrued during the lifetime of the decedent. For that reason it has been held in Thompson v. Whitmarsh (100 N. Y., 35), that this section does not include a demand accruing to the personal representatives, through a disposition of the funds or property of the estate, after the decease of the testator or intestate. This section in reality has, therefore, aecomplished no change in the law of the State, as it previously existed. Upon a demand accruing to the personal representatives through such a transaction, they were by that law legally authorized to ■ maintain an action for its recovery in their own names as individuals. (Merritt v. Seaman, 2 Seld., 168; Biddle v. Wilkins, 1 Peters, 6S6.) But while they were at liberty to proceed in that manner, the law was not compulsory that they should take that course, but they were at liberty to prosecute and maintain the action in that form, or in their representative capacity. (Kane v. Paul, 14 Peters, 33.) The cases to which reference has been made by way of supporting the appeal are in no manner in conflict with this general rule of practice, but, on the contrary, substantially conceded the existence of the rule as it has here been stated. What they have chiefly determined is, that a cause of action, which had accrued to the testator or intestate, cannot be united with another accruing to the personal representatives after his decease. (Ferrin v. Myriek, 41 N. Y., 315; Austin v. Mirnro, 47 id., 360; Patterson v. Patterson, 59 id., 574.) The plaintiffs were at liberty, therefore, either to bring this action in their own names as individuals, or as representatives of this estate, and as the facts for either action are fully stated and set forth in the complaint, they were here empowered to maintain the action if it could be sustained by them, either as individuals or as personal representatives.”
    ******

      Charles F. Miller, for the appellants.

      Pobert Sewell and John P. Dos Passos, for the respondents.
   Opinion by

Daniels, J.;

Bjrady, J., concurred.

Judgment and order affirmed.


author: Barnard, P. J.:

text:
    MAURICE COLEMAN, Respondent, v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

      Negligence — liability of a horse-can• company to one injured while passing from one seat to another along the outside of the car — when it is not negligence for him to attempt to change his seat.

    The plaintiff on entering one of the defendant’s open horse cars sat down on the outside of the last seat with his back to the rear platform. Other passengers having been allowed to crowd into his seat, to the discomfort and annoyance of the plaintiff, he left it intending to walk upon a step which ran lengthwise along the side of the car, in order to reach the forward part of the car where there were vacant seats. In so doing he was struck by an iron column of the elevated railroad, at a point where the defendant’s road runs closer than usual to the iron supports of the elevated road.

      Held, that it was not negligence, as a matter of law, for the plaintiff to attempt to use the 'Step to obtain for himself a new seat in the place of the one from which the defendant had permitted him to be forced.
    That it was not negligence, as matter of law, to misjudge the distance between the car and the iron column, especially when this column was nearer than they usually were.
    That a request to charge that the plaintiff was bound to stop the car or request the conductor to do so was properly refused, as the question was one of fact for the jury and not of law.
    A common carrier is bound to use the highest degree of foresight in anticipating dangers and in guarding against them.

      Appeal from a judgment, entered upon a verdict rendered at the Kings County Circuit in favor of the plaintiff, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The plaintiff entered an open car on July 6, 1880, near One Hundred and Twenty-seventh street, New York city, and “got into the rear seat,” with his “ back to the rear platform.” He testified that some other persons came into the part of the car where he was sitting; that he “ got crowded out,” and the forward portion of the car being vacant, he stepped out on the step that ran along the side of the car to go to another seat; that “ in trying to get into another seat my head came in contact with the iron column of the elevated railway.”

      Austen G. Fox, for the appellant.

      P. <& D. Mitohell, for the respondent.
   Barnard, P. J.:

The plaintiff was a passenger in the defendant’s car sitting in the rear seat. The company permitted him to be crowded out by other passengers. The car was an open one. There is a step outside the car upon which the passengers enter the car, and it can be and is used to pass from seat to seat. When the plaintiff was made uncomfortable, if not unsafe, he attempted to pass along the step to a front seat where it was less crowded. In doing so he was struck by the iron column of the elevated railroad. At this point the car track of the defendant’s street railroad is closer than usual to the iron supports of the elevated railroad. They are of uniform distance, but the street road varies sometimes in distance between its tracks, and thus their cars are brought in some places nearer the iron columns of the elevated road than in others. It was not a negligent act, as matter of law, for the plaintiff to attempt to use the step to place himself in a new seat in the place of the one from which the defendant had permitted him to be forced. (Dixon v. Brooklyn City, etc., R. R., 100 N. Y., 171.)

It was not negligence, as matter of law, to misjudge the distance between the car and the iron column, especially so when this column was nearer than they usually were, and with a car which itself projects considerably over the space between the defendant’s tracks and the elevated railroad structure. (Dobiecki v. Sharp, 88 N. Y., 203; Brassell v. N. Y. C. and H. R. R. R. Co., 84 id., 241.)

The charge of the judge in respect to the principles which govern this class of actions is supported by numerous cases. The carrier is bound to use the highest degree of foresight in anticipating possible danger and in guarding against them, and it was for the jury to say under the evidence whether this duty was performed.

The requests to charge to the effect that the plaintiff was bound to stop the car or request the conductor to do so, did not present a question of law, but one of fact for the jury. If the request was good there was no question for the jury. The plaintiff did not ask the conductor to stop, but proceeded to release himself from a difficulty in which the defendant had placed him, by using a step apparently safe to be used for the purpose.

The judgment should be affirmed, with costs.

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

Judgment and order denying new trial affirmed, with costs.


author: Barnard, B. J. :

text:
    EDWARD F. BROWNING, Respondent, v. EDWIN L. HAYES, Appellant.

      Supplementary proceedings — where the examination of a non-resident debtor must be had — Code of Givil Procedure, sea. 2434.
    The plaintiff having obtained a judgment against the defendant, in the Supreme Court in Kings county, filed a transcript thereof in the county of New York, upon which an execution was issued to the sheriff of that county, which was returned unsatisfied. Thereafter an order was made by a justice of the Supreme Court in Kings county, requiring the defendant, a non-resident of the State, having a place of business in the county of New York, to appear before a referee in the city of New York to be examined.

      Held,, that the order should be set aside as being irregular in that it did not provide that the subsequent proceedings should be had before a justice of the Supreme Court of the First Judicial District as required by section 2434 of the Code of Civil Procedure.
    A ppeal from so much of an order made at the Kings County Special Term as denied a motion to vacate an order requiring the defendant to appear and be examined in proceedings supplementary to execution before a referee in the city of New York.

      William E. Qerrcvrd, for the appellant.

      Charles 8. Simpkins, for the respondent.
   Barnard, B. J. :

The plaintiff obtained a judgment in Kings county in the Supreme Court. A transcript was filed in the county of New Y ork and an execution was issued to the sheriff of that county and returned unsatisfied.

The defendant is a non-resident of the State and has a place of business in the county of New York. An order was made by a judge of the Supreme Court in Kings county, that the defendant appear before a referee in the city of New York. The order does not provide that the subsequent proceedings be had before a justice of the Supreme Court of the First Judicial District. I think the order is irregular in this respect and cannot stand. Section 2434 of the Code of Civil Procedure is not very plain. It can be gathered therefrom, by a very strict reading, that it is only in cases where a Supreme Court justice makes the order in the place of other inferior judges, that a provision must be inserted making the order returnable before a Supreme Court justice or other local magistrate of the judicial district where the order is to be executed. This reading is not the true one. A debtor non-resident cannot be taken out of the county where his place of business is. When, therefore, an order to examine a judgment debtor is made by a justice of the Supreme Court, to examine a debtor in another judicial district, the order must be made returnable before a judge of that district, and the words “ in that case ” in section 2434, do not alone refer to orders made for inferior judges, but are intended to embrace all orders to be made “ before a justice of the Supreme Court.”

By section 2442 the referee must certify the evidence to the judge before whom the order is made returnable. This language would not be proper in the ordinary case of an order made in a county where the debtor resided by an officer therein.

The order should, therefore, be reversed, with costs and disbursements, and tlie motion granted, with costs, all costs to be applied on the judgment.

Dykman and Cullen, JJ., concurred.

Part of order appealed from reversed, with costs and disbursements to be applied on the judgment.


text:
    WADE BUCKLEY, Individually, and WADE BUCKLEY, as Executor, etc., of CHARLES W. BUCKLEY, Deceased, Appellant, v. WILLIAM A. DRAKE and Others, as Commissioners of Highways of the Town of Deerpark, Respondents.

      Opening of highway — an applicant for the highway may act as a juror — section 75 of part 1, chapter 16, title 1, article 4 of the Revised Statutes, as amended by chapter 696 of 1881 — what errors in the proceedings must bereviewed by certiorari and not by action.

    This action was brought to restrain the commissioners of highways of a town from entering upon the plaintiff’s land to open a new highway, and to vacate and set aside the proceedings taken in laying it out, upon the grounds that the jury which certified to the necessity of the highway was illegally constituted, in that one of the persons, who served as a juror, had signed the petition for the highway presented to the commissioners of highways, and that the names of a number of such petitioners were upon thelist from which the said jury was drawn.

      Held, that a person was not disqualified from acting as a juror by reason of the fact that he had signed the application for the highway.
    That if he were in fact thereby disqualified from so acting, the remedy of the . plaintiff was by certiorari and not by action.
    Appeal from a judgment dismissing the plaintiff’s complaint, entered upon the trial of this action at the Orange County Special Term.
    This action was brought to restrain the defendants, as commissioners of highways of the town of Deerpark, from entering on so much of plaintiff’s land as lies within the limits of the new Berme side highway, and to vacate and set aside all proceedings which have been had in the matter of the laying out of said highway.
    These proceedings were taken in pursuance of the Revised Statutes, as amended by chapter 696 of the Laws of 1881. The ■final order laying out the said highway was made July 22, 1884, and this action was brought about January 1, 1S86. It is admitted by the pleadings that all the legal requirements and formalities for the laying out of a highway were complied with, but it is charged by the appellant that the jury which certified to the necessity of this highway was illegally constituted in that one of the persons who served thereon had signed a petition therefor to the commis-. sioners of highways, and also in that the names of a number of such petitioners were upon the list from which said jury was drawn. No objection of this kind was made at the time of drawing or swearing the jury, nor until the commencement of this action.
    The justice at Special Term, at the close of the plaintiff’s case, dismissed the complaint upon the ground that although there might have been an error in the drawing of the jury, yet that as a complete remedy existed at law this action could not be maintained.

      John W. Lyon, for the appellant.

      G. E. Guddebaok, for the respondents.
   Barnard, P. J.:

There was no error in the drawing of the jury. The application to open the highway was signed by a great many persons, and the jury was drawn under legal form. The statute directs how the jury is to be formed, and this way was explicitly followed. The town clerk is directed to deposit in a box the names of all persons then residents of his town whose names are on the list ” as jurors, who are not interested in the lands,” “ nor of kin to the owner.” The disqualification is of those who are interested in the lands and of persons of kin to the owner. (Chap. 696, Laws of 1881.) Under the phrase interested in the land,” the legislature could not have intended to cover those who signed the application for a road through it. An applicant for a highway is no more interested in the land than a freeholder who is in favor of the road and has not signed the application. Such a juror would undoubtedly be proper. If an absolutely impartial jury was designed, the law would have provided some way for a challenge to review those jurors who had formed an opinion. The old way of obtaining a certificate permitted an applicant, by a notice, to call everybody to view his proposed road, and if he could get twelve to sign the certificate, the road went before the commissioners of highways for tlieir action.

In 1871 the legislature changed this mode by requiring a certificate from a jury drawn (twelve in number), from the town jury list, except those interested in the land and related to the owner, and it required nine of this number to sign the certificate. Ten signed the certificate in question, but one of them was one of the 159 persons who signed the application.

Under the precise requirement of the law he was a capable juryman. If there was an error, it would have been reviewable by certiorari. The application and the certificate would necessarily have been returned, and it would have appeared by the return that one of the applicants was a drawn juror and one who sat upon the proceedings. When there is a remedy it is by certiorari or appeal. When the case requires no proof of facts outside of the return, the remedy for an error is to be brought by a writ of review of the case itself.

On both grounds, therefore, the judgment should be affirmed, •with costs.

Dykman and Cullen, JJ., concurred.

Judgment affirmed, with costs.


text:
    FELIX JELLENIK, as Assignee of the Creditors of ADOLPH GRUNBERG, Respondent, v. MOSES MAY and MICHAEL LEVY, Appellants.
    Evidence— admissibility of admissions of an insolvent debtor'made after the delivery of a general assignment, but while he was in possession of the property.

    'This action was brought by the plaintiff, as the assignee of one Urunberg, to recover certain goods levied upon on February 28, 1885, by the sherifE of Kings county under an execution issued upon a judgment recovered against Drunberg. The assignment was dated N ovember third and acknowledged November 6, 1884. Upon the trial evidence was given tending to show that the assignor ■continued in possession of the property, manufacturing and managing the stock of goods and materials as usual, until November 8,1884, when they were seized under an attachment by the sheriff of New York county, who returned •them to the plaintiff on February 28, 1885, when they were levied upon by the sherifE of Kings county.

      Held, that it was error to refuse to allow the defendants to prove admissions of the assignor made while he continued in possession of the property.
    That the court also erred in rejecting evidence of the acts of the assignor at and about the time of the assignment.
    Appeal from a judgment, entered upon tlie verdict of a jury at the Kings County Circuit, and from an order denying a motion for a new trial.
    On the 28th of February, 1885, the sheriff of Kings county levied upon certain goods, and took them out of the possession of the plaintiff, who held them as assignee of Adolph Grunberg for the benefit of creditors. The plaintiff having claimed the goods, the present defendants, Moses May and Michael Levy, indemnified the sheriff. The goods were sold under execution, and brought $1,568 on such sale. The plaintiff having sued' the sheriff, the defendants May and Levy intervened, and were substituted, pursuant to sections 1421 to 1427 of the Code, upon their own motion.
    The defendants sought to introduce at the trial testimony as to admissions made by the assignor, and by one of the preferred creditors, prior to the assignment and thereafter. This was excluded, and it is upon the exceptions to the exclusion of this testimony that the appeal substantially rests. The defendants claim that the testimony showed that the assignee had not taken immediate and held continued possession of the goods, and that the admissions of the assignor and preferred creditors were, therefore, admissible. The sheriff of New York county seized the goods on the eighth of November, under attachment. On the twenty-eighth of February he returned them to the plaintiff, and then the sheriff of Kings county made the levy which is the basis of this action.

      Ira Leo Bamberger, for the appellants.

      John 8. Davenport, for the respondent.
   Barnard, P. J.:

The proof of fraud in the assignment by Grunberg to the plaintiff is very light, but it was sufficient to admit the declarations of Grunberg. The assignment was dated the 3d of November, 1884, and acknowledged the 5th of November, 1884, and there is proof tending to show that the assignor continued in the possession of the property manufacturing and managing the stock of goods and material as usual until the 8th of November, 1884, when it was seized by tiie sheriff of New York. The assignee formally locked the door of a work-room in the house, and there is proof tending to show that the key was at once returned to the assignor. Under this state of the proof it was error to exclude the declaration of the assignor. (Adams v. Davidson, 10 N. Y., 309.)

"When an assignment is followed by a change of possession the declarations of the assignor are not evidence. (Coyne v. Weaver, 84 N. Y., 392.) The admissibility of the testimony depends upon the assignee being in possession. .

In Coyne v. Weaver (84 N. Y.), the answer of the defendant alleged that the assignee was in possession at the time of the levy, and the court held that the assignor’s declarations were inadmissible “ because made after the assignment and delivery of possession under it.”

The acts done by the assignor at about the time of the assignment, and the declarations made by him, were evidence, and their rejection was improper. The question of a lack of a change of possession, as the case was left, was one for the jury. The necessity for a jury may be further shown by proof of a fictitious debt or that the assignment was made to defraud creditors by other proof.

Judgment reversed and new trial granted, costs to abide event.

Dvkman and Cullen, JJ., concurred.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES L. ANDERSON, Appellant, v. THE POLICE COMMISSIONERS OF THE CITY OF YONKERS, Respondents.

      Member of police force— what acts justify his dismissal from the force.

    The relator, a policeman of the city of Yonkers, was tried and proven to have falsely stated that one of his associates had been found in bed with' another man’s wife, and had asked a reporter to publish the statement in the Police Gazette.

      Held, that the charge was sufficient to call for his dismissal from the force.
    Certiorari to review the action of the Police Commissioners of the City of Yonkers in dismissing the relator from the police force of the said city, which was organized under chapter 163 of 1873.
    The relator was proven to have falsely stated to a reporter of the Police Gazette that another member of the force had been found in bed with another man’s wife, and asked him to publish the statement in the paper.

      Ambrose H. Purdy, for the relator, appellant.

      Joseph F. Daly and Matt. II. Filis, for the respondents.
   Barnard, P. J.:

There is sufficient proof to establish the charge made against the relator. It is only partially denied. The proceedings were regularly instituted. A charge was formally made and served upon the relator, and he had notice of the hearing before the commissioners and duly attended, and was himself sworn in his own defense. The only-question, therefore^ for this court to determine is, whether the charge itself was one sufficient to call for the relator’s dismissal, if true. The relator was a policeman of the city of Yonkers. He is proven to have falsely stated that one of his associates on the police force was guilty of agrave, immoral act, and one injurions not only to him, but as implicating an associate in guilt with him. The relator, in addition, tried to get the false statement published in a largely circulated newspaper. Such conduct is injurious to the public peace and welfare, and is unbecoming a police officer. By the falsehood the respect for the police is weakened, and a lack of friendly unity is created in the force itself. There can be no properly disciplined force such as the service demands, if the members are permitted to falsely accuse each other of immoral and disgraceful offenses. The commissioners constituted a tribunal vested with disciplinary powers, and not a court limited in its functions within the provisions of the Constitution. (People ex rel. Flanagan v. Police Comrs., 93 N. Y., 97.)

The removal of the .relator by the commissioners is, therefore, affirmed, with costs and disbursements.

Dvkman and Cullen, JJ., concurred.

Order affirmed, with costs and disbursements.


text:
    JACOB HAAG and PHILIP HAAG, Claimants, Respondents, v. CHARLES HILLEMEIER, Owner and Appellant. ALEXANDER HIGINBOTHEM, Claimant, Respondent, v. CHARLES HILLEMEIER, Owner and Appellant.

      Mechanics' lien —1854, chap. 402, sec. 20, as amended by chap. 188 1871 — the lien, continues until a final judgment is rendered.

    Tlie plaintiff brought this action to foreclose a lien claimed by him under chapter 402 of 1854, and the acts amendatory thereof, which provide that “ every lien created under the provisions of this act shall continue until the expiration of one year, unless sooner discharged by the court or some legal act of the claimant in the proceedings, but if, within such year, proceeding's are commenced under this act to enforce or foreclose such lien, then such lien shall continue until judgment is rendered therein, and for one year thereafter. Such lien shall also continue during the pendency of any appeal and for one year after the determination thereof.”
    The plaintiff obtained a judgment which was, upon appeal, reversed, a new trial, with costs to abide the event, being ordered. The case not having been reheard and more than a year having elapsed from the time of the reversal of the judgment, the defendants moved to dismiss the action upon the ground that the lien had ceased to exist.

      Meld, that the motion was properly denied; that the provision that the lien should continue “until judgment is rendered,” meant until a final judgment is rendered.

      Appeals from orders made at the "Westchester Special Term, denying a motion made to dismiss and discontinue the action in each of the above entitled cases.
    Both motions were made upon the ground that the mechanics’ liens, which these suits were brought to foreclose, had ceased through lapse of time, and that the liens having ceased these suits fall also, and must be discontinued, and from the denials of these motions the defendant owner, Charles Hillemeier, appeals. Botlj of these proceedings were brought to foreclose mechanics’ liens filed under chapter 402 of the Laws of 1854, as amended, against the defendant Hillemeier’s property in Mount Yernon, N. Y. Both suits proceeded to judgments which were rendered in favor of the respective claimants, and from these judgments the defendant Hillemeier appealed to the General Term, where said judgments were reversed and new trials granted.
    In the Haag case said General Term judgment, with notice of entry, was duly served on claimants’ attorney on December 24,1884. In the Higinbothem case said General Term judgment, with notice of entry, was duly served on claimants’ attorney on September 23, 18S4. No appeal was taken in either case to the Court of Appeals, and neither case has been again brought to trial.
    In February, 1886, the motion papers in these motions were served, and the motions were argued on February 27, 1886.

      Henry W. Hayden, for the appellant.

      Joseph S. Wood, for the claimants and respondents.
   Barnard, P. J.:

The motion to dismiss the action was properly denied. The plaintiff seeks to establish and foreclose a lien under chapter 402, Laws of 1854, section 20, as amended by chapter 188 of 1871. It is provided by the act, as it now stands, as follows: “ Every lien created under the provisions of this act shall continue until the expiration of one year, unless sooner discharged by the court or some legal act of the claimant in the proceedings, but if within such year proceedings are commenced under this act to enforce or foreclose such lien, then such lien shall continue until judgment is rendered therein and for one year thereafter. Such lien shall also continue during the pendency of any appeal, and for one year after the determination thereof.” The claimant obtained a judgment, which was appealed from and reversed with a direction for a new trial, costs to abide event. This determination upon the appeal was made over a year ago in June, and the case has not been yet reheard. The section saves the proceedings until a judgment is rendered. None has yet been rendered. A faulty judgment was obtained and that was set .aside. The case is still ona where proceedings are commenced, arid the lien continued until judgment is rendered,” that is, until a final judgment is rendered. The appeal proceedings have no relevancy except to prolong the period between the commencement of the proceedings and judgment therein.

The order should be affirmed, with costs and disbursements.

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

Orders in each of these cases refusing to dismiss action affirmed, with costs and disbursements.


author: Dykman, J.:

text:
    In the Matter of the Application of the STATEN ISLAND RAPID TRANSIT RAILROAD COMPANY to Acquire Title to Certain Real Estate of CHARLES K. HAMILTON and Others.

      Commissioners to appraise ¡and to be taken for railroad purposes — their report will not be set aside because they charged and received from the company more than the statutory compensation for thevr services.

    A motion to confirm tlie report of commissioners appointed to appraise the damages to be awarded to the owners of land taken for railroad purposes was denied and the report was set aside, upon the objection of certain of the property owners that the commissioners had received from tlie railroad company compensation fpr their services exceeding that prescribed by the statute. It did not appear that the commissioners required any stipulation in advance respecting their fees, or that there was any agreement on the subject at any time. After their services were completed they made out a bill which was presented to and paid by the company.

      Held, that the court erred in setting aside the report.
    That while it was true that courts will guard against improper influence and will require the avoidance of the very appearance of evil, yet no rule has yet been established which makes it necessary or proper for the court to set aside a report of commissioners simply because they have charged and received a fair and adequate compensation for the time they have devoted to the discharge of their duties and the services they have performed.
    The objecting laud-owner was present at a meeting of the commissioners, when his counsel requested a postppnement, which was opposed by the counsel for the company, who stated, as one ground of his opposition, that the commission . was costing the company $100 for every day it was in session.
    Held, that this was á plain statement that the commissioners would receive over thirty dollars a day, and that any objection which the owner Inight have should have been then made.
    Appeal taken by the Staten Island Rapid Transit Railroad Company from an order made at the Kings County Special Term, and entered in Richmond county, setting aside the report and appraisal of commissioners appointed to condemn property for railroad purposes.
    The ground upon which the order was made was that after the report had been filed the commissioners charged, and the company-paid to them, for their services larger fees than the per diem, allowance of five dollars fixed by statute. It appeared that the company had been in the habit of paydng all the commissioners in such proceedings twenty-five dollars each per day, and that the commissioners employed in these proceedings had served in similar proceedings.

      Stewart ds Boardman, for the railroad, appellant.

      Henry E. Knox, for the land-owners, respondents.
   Dykman, J.:

This is an appeal from an order setting aside a report of commissioners of appraisal because they received compensation for their services beyond the allowance prescribed by the statute. It does not appear that they required any7 stipulation in advance respecting their fees, or that there was any agreement on the subject at any time, but, after their services were completed and their report made and filed, they made a bill which was paid by the company, the only source from which they could derive their fees. Their position was not similar to that of a referee to hear and determine an action, whose fees are to be paid in the first instance to him by the successful party. The compensation must come from the railroad company without recourse to the property owner, and without reference to the amount of their reward. It cannot be assumed that any advantage enures to the company from that fact, but if it has any influential operation it cannot be attributed as a fault either to the commissioners or the company. The property owner has neither duty nor interest respecting the fees of the commissioners, and so long as he secures a just result by the award they make he cannot be heard to complain. In this case there is no complaint against the commissioners or their award and no abuses of any kind are even suggested.

The commissioners performed their duties, and then, after all was over and done, made a charge for their services such as they deemed just and proper, and the company paid the bill instead of precipitating a controversy. The facts seem to furnish no adequate reason for setting aside a just report. Besides all this, the land-owner himself states that he was present at a meeting o.f the commissioners when his counsel requested a postponement, and when the counsel for the company stated, as one ground of his opposition, that the commission was costing the company $100 for every day it was in session. This was a plain statement that the commissioners would receive over thirty dollars a day, and yet no objection was made, and certainly if any was contemplated the appropriate time to,make it was then.

It is quite true that courts have and will guard against improper influence, and will require the avoidance of the very appearance of evil, but no rule yet established makes it necessary or proper for the court to set aside a report of commissioners simply because they have charged and received a fair and adequate compensation for the time they have devoted to the discharge of their duties, and the services they have performed.

The order should be reversed, with ten dollars costs and disbursements, and the motion to set aside the report should be denied, with ten dollars costs, and the motion to confirm the report of the commissioners should be granted, without costs.

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

Order setting aside report reversed, with costs, and motion denied, with costs and disbursements, and report confirmed, without costs.


author: Dyicman, J.:

text:
    THEODORE CONROW and Others, Respondents, v. JOSEPH J. LITTLE and WILLIAM J. DEMOREST, Appellants, Impleaded with ALEXANDER C. BRANSCOM.

      Election of remedies — when the commencement of an action and the issuance of a warmnt does not constitute an election — a pa/rty cannot acquire a lien upon property not owned by his debtor.

    In August, 1884, the plaintiffs were induced, by the delivery to them by the defendant Branscom of a forged note, to enter into an agreement to manufacture for him a large quantity of paper to be used in printing a book. In September of that year, Branscom, by the deli very of a similar forged note, induced the appellants above named to enter into an agreement to print the book. Pursuant to the contract and the direction of Branscom, the plaintiff delivered 150 reams of the paper to the appellants, who at the time of the commencement of this action had used but four reams of the paper and still had the remainder. Upon the receipt of the forged note the appellants had commenced the work of composition, electrotyping and printing, and claimed a lien on the paperforthe amount due them for so doing.
    When the plaintiffs discovered that the note received by them was a forgery, they brought an action in the Superior Court of New York against Branscom, in which an attachment was issued upon an affidavit charging him with having obtained their goods and money by fraud, and demanding damages. When they ascertained that the appellants still held the 146 reams of paper, they discontinued the action in the Superior Court, in which no complaint had been served, and brought this action to recover the said property.

      Held, that the action could be maintained. (Cullen, J., dissenting.)
    That the issuance of the attachment in the action in the Superior Court, and its discontinuance without the entry of a judgment, constituted no bar to this action.
    That the appellants could acquire no lien upon the paper by virtue of any arrangement with Branscom, for the reason that the latter had no right in or to the property which could be the subject or foundation of a lien.
    Appeal by tbe defendants, Little and Demorest, from a judgment in favor of tbe plaintiffs, entered upon tbe trial of tbis action at tbe Kings County Circuit by tbe court without a jury.
    Tbe action was brought to recover tbe possession of 146 reams of paper, which is a part of 150 reams that were delivered to tbe defendants Little & Co. by tbe plaintiffs under a contract made by tbe latter with tbe defendant Branscom.

      James R. Marvin, for tbe appellants, Little and Demorest.

      Henry Parsons, for tbe respondents.
   Dyicman, J.:

In the month of August, 18S4, the plaintiffs entered into an agreement with the defendant Branscom to manufacture a large quantity of paper for him to be used for printing a book, and it was to be of such kinds and quantities and ready for delivery at such times as he might direct, to the amount of $7,000.

As security for the payment, or as payment for the paper so to be made and delivered, Branscom delivered to the plaintiffs a promissory note for $7,000, purporting to be made by the Mississippi Mills, but which was in fact a forgery. ' It seems that the plaintiffs also received another counterfeit note from Branscom, but it has no especial influence in this case further than to swell the amount of their claim.

In the month of September, 1884, Branscom made an arrangement with the defendants to print the book for which the paper of the plaintiffs was intended. A portion of the paper furnished by the plaintiffs under their contract with Branscom was by his direction delivered by them to the defendants, and the book was to be printed thereon. The paper, constituting the subject of this action, was ordered from the plaintiffs and manufactured and delivered by them to the defendants under and in pursuance of their contract with Branscom in the month of October, 1S84. The quantity delivered was 150 reams, four of which were printed upon prior to the commencement of this action, but the remaining 146 reams had not been used, and remained in the same condition as when delivered to the defendants, and this action is for the recovery of the possession of that paper or its value.

On the 9th day of September, 1884, Branscom gave the defendants a note for $5,000, similar in all respects to the note he delivered to the plaintiffs, and that was also a forgery. The defendants received it on account of their printing, and then commenced the work of composition, electrotyping and printing, for which they claim a lien on the paper in question. When the plaintiffs discovered their note to be a forgery they commenced an action in the Superior Court of the city of New York, in which an attachment against the property of Branscom was procured on affidavits charging that their goods and money had been obtained by fraud and demanding damages to the extent of the money and the value of the goods. When the plaintiffs ascertained that 146 reams of their paper had not been printed upon nor used, but remained with the defendants as it had been delivered to them, they made a demand for the same, and upon refusal to deliver it they commenced this action for its recovery. The action in the Superior Court has been discontinued, no complaint having been served therein.

The contention of the plaintiffs now is, that the fraud of Branscom vitiated his contract with them, and that they never parted with the title to the paper, but had the right to follow and reclaim and recover the same from any party not a purchaser thereof in good faith and for value. The defense of the action is based on the ground that the plaintiffs elected an inconsistent remedy by bringing their action in the Superior Court against Branscom for the recovery of the value of the paper with full knowledge of the fraud perpetrated by him, and that such election constituted an affirmance of the sale, and estopped the plaintiffs from following or recovering the paper. The defendants also claim a lien upon the paper in question for the value of the work performed under their contract with Branscom.

It is also claimed by the defendants that the plaintiffs realized, a portion of their claim in the attachment suit; but the claim is scarcely justified. The admission of the counsel was that Branscom gave his check for $2,915, representing a portion of the money attached, which amount was applied on the $5,000 note which the plaintiffs had discounted with the consent of Branscom.

So far as the defense to this action is based on the doctrine of estoppel arising from the election of a remedy inconsistent with that pursued in this action, it cannot succeed. The issuance of the attachment in the action in the Superior Court, and its dicontinuance without the entry of judgment, constitute no bar to the present action. (Equitable Foundry Co. v. Hersee, 33 Hun, 169; Wright v. Ritterman, 1 Abb. Pr. [N. S.], 428.) Neither can the defendants stand on their lien upon the paper in question. Independent of the fact that they performed no service, and bestowed no labor on that paper, the fraud perpetrated by Branscom upon the plaintiffs vitiated his transaction with them, and as their sale to him was induced by such fraud, they had the right áfter its discovery to retake and reclaim their property from any person except a transferee in good faith for a valuable consideration. The defendants were not such transferees. In fact, the property never was transferred to them at all; as the title of Branscom was vitiated by his fraud, he had nothing to transfer to the defendants, and never did and never could vest them with any right or title to the property. The lien they claim is against Branscom, and must attach, if at all, to his title or to his property in the goods. As, therefore, he had no property in the goods, and as the title to the property never passed from the plaintiffs, the defendants could acquire no lien upon it by virtue of any arrangement with Branscom, for the simple reason that he had no right in or to the property which could be the subject or foundation of a lien. Under the defendants’ claim against him they could acquire no right in the property, because he possessed none himself. In no view can this action be successfully defended.

The judgment should, therefore, be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Dykman, J. :

text:
    JANE J. WORAM, Appellant, v. WILLIAM NOBLE, Respondent.

      Defective cover to a coal hole under the sidewalk — when one purchasing the premises, subject to a lease, is not liable for injuries resulting from such defect, when ignorant of it.

    This action was brought to recover the damages resulting to the plaintiff from an injury sustained by a fall through a coal-hole in the sidewalk in front of the defendant’s premises, in the month of April, 1884. The coal-hole was circular, having a diameter of about fifteen inches, a groove being cut in the stone around its edge to receive and hold the cover. At the time of the accident the stone on the southerly side of the cover had sunk so as to allow the cover to tilt when trodden upon in a certain way, or in a certain place where the stone had sunk. The cover tipped when the plaintiff stepped upon it and her right leg went into the hole, and the upper part or edge of the cover struck her inflicting the injury complained of.
    Upon the trial of this action brought by her to recover damages for the injuries so sustained, it appeared that the defendant became the owner of the premises in September, 1883, subject to a lease to a tenant expiring May 1, 1884, which required the tenant to make all repairs. The coal-hole was then in the sidewalk, but it had not been constructed by the defendant, nor did he have any notice or knowledge of its defective condition, although the tenant had noticed the depression in the stone about a year previous to the accident.

      Held, that although it must be assumed, in the absence of proof of a permit for the construction of the coal-hole, that it became a nuisance after the subsidence of the stone which formed the bed of the cover and gave it support and security, yet the defendant could not, in the absence of any evidence to show that he was responsible for its construction, or had knowledge of its defective condition, be held liable for the injuries sustained by the plaintiff.
    Appeal from an order, entered at the Kings County Circuit, setting aside the verdict of a jury in favor of the plaintiff, and directing judgment for tbe defendant, and from the judgment entered thereon.

      Charles J. Patterson, for the appellant.

      John H. V. Arnold, for the respondent.
   Dykman, J. :

This action was commenced for the recovery of the damage resulting to the plaintiff from an injury sustained by a fall through a coal-hole in the sidewalk in front of the defendant’s premises in the month of April, 18S4.

The defendant became the owner of the property by a conveyance to him in September, 1883. It was. conveyed subject to a mortgage and also subject to a lease expiring May 1, 1884, and the lessee under that lease continued in the occupation of the premises until the expiration of his lease, and was in such occupation at the time of the accident. By the terms of the lease the lessee was to make all repairs.

The coal-hole was circular, about fifteen inches in diameter, and the cover laid in a groove cut in the stone around the edge of the hole to receive and hold it. At the time of the accident the stone on the southerly side of the cover had sunk so as to allow the cover to tilt when trodden upon in a certain way' or in a certain place where the stone had sunk. The depression in the stone was noticed by the tenant about a year previous to the accident. The cover tipped when the plaintiff stepped upon it, and her right limb went into the hole, and the upper part or edge of the lid struck her and inflicted the injury complained of, the cover itself was not defective.

The coal-hole was in the sidewalk when the defendant became the owner of the premises, but he did not construct it and knew nothing of it in any way, and had no notice or knowledge of its defective condition previous to the accident. After his purchase he received the rent from the tenant until the expiration of his lease.

The trial judge refused to dismiss the complaint, and the jury rendered a verdict for the plaintiff, but it was turned to a verdict for the defendant by the judge, on the law, under a right reserved for that purpose, with the consent of the plaintiff. The appeal to this court is from that order.

There is no proof of permission to build the coal-vault or open the hole in the sidewalk, and no complaint of any defect in the original construction of either, and the depression in the stone which allowed the cover to tip on its edge was gradual and from natural causes, commencing while the premises were in the actual occupation of a tenant before the defendant became the owner thereof.

While, therefore, it must be assumed, in the absence of proof of a permit for its construction, that the coal-hole became a nuisance after the subsidence of the stone which formed the bed of the cover, and gave it support and security, yet to impose liability upon the defendant for the disaster that befell the plaintiff, would be to hold him responsible for the nuisance when he had no agency in its creation, was without knowledge of its existence, derived no benefit from its continuance, and was destitute of authority for its abatement. Being innocent of everything but the ownership of the reversion at the time of the accident, no rule of justice requires a visitation of the consequences of the accident on the defendant, and nothing but a severe rule of law will justify a decision producing such a result. Our examination discloses no such rule, for while there have been many decisions in cases similar to this, yet we find no authority for holding a defendant liable for damages in a case parallel with this.

In the case of Clancey v. Byrne (56 N. Y., 129) the judge who wrote the opinion of Court of Appeals made the following specification of the grounds of liability of defendants in cases similar to this, viz.: “ That he owned or had right in the premises, and leased them with the nuisance upon them; that he was in the possession of the premises and used them in their defective condition ; that he was under a contract enforceable by plaintiff to keep the premises in repair and failed so to do; that he, in the first instance, created the nuisance, and put it in the power of others to continue it; or that being a municipal corporation there was a duty upon it to repair.” This is a comprehensive classification, but the facts of this case disclose no ground of liability therein laid down. The case falls within neither class, and we have found no case similar to this in which a liability has been imposed.

In the cases of Dygert v. Schenck (98 Wend , 447); Congreve v. Morgan (4 Duer., 439; 5 id., 495); Congreve v. Smith and another (18 N. Y., 79, 84); Clifford v. Dam (81 id., 52), the obstructions causing the injuries were created by the defendants, who utilized them or leased them in connection with their premises.

In the case of Davenport v. Ruckman (37 N. Y., 568), the defendant Ruckman was the owner of the house and had allowed the cellar-way to become dangerous, and had leased the premises and put his tenant in possession while the premises were in that condition.

In the case of Irvine v. Wood (51 N. Y., 224), there was a recovery against both the landlord and the tenant, but the former abandoned his appeal and the decision is authority only against a tenant, and it was said in the opinion that the “ liability attached not only to those who made the excavation, but to those who continued and used it in its improper and unsafe condition.”

In the case of Anderson v. Dickie (26 How., 105), the owner constructed the coal-vault under the sidewalk for his own convenience and covered it with an insecure circular grating, and then rented the premises.

In the case of Swords v. Edgar (59 N. Y., 34), the judge writing the opinion of the Court of Appeals said: “ Where there has been a nuisance of continued existence upon demised premises, the lessor and the lessee may both be liable for damages resulting therefrom. Tire lessee in the actual occupation of the premises if he continues the nuisance after notice of its existence and request to abate it, and the lessor if he at first created it and then demised the premises with the nuisance upon them, and at the time of the damage resulting therefrom, is receiving a benefit therefrom by way of rent or otherwise.”

In the case of Edwards v. New York and Harlem Railroad Company (98 N. Y., 249) it is said: “The responsibility of the landlord is the same in all cases. If guilty of negligence or other delictum, which leads directly to the accident and wrong complained of, he is liable; if not so guilty, no liability attaches to him.”

In the case of Wolf v. Kilpatrick, in the Court of Appeals (101 N. Y., 146), which was an accident case similar to this, it was said: “ The recovery must stand, if at all, upon the sole ground that an owner who has constructed vaults under the sidewalk lawfully and with due prudence and care, and transferred possession of the premises, if he ever had it, to third persons without covenant on his part to repair, is liable for a defect in the vault covering which .afterwards occurs through the interference of a stranger, although he may have had neither notice nor knowledge of the defect.” Again, in the same case, it is said: “It may be that the condition •of the coal-hole in the sidewalk became a nuisance while Macpherson -was in possession, and after the stone was broken. (Swords v. Edgar, 59 N. Y., 34.) But if so, the party responsible can only be the ^person who either creates the nuisance or suffers it to continue. 'The owners did not create it; that was the wrongful act of strangers. How can it be said that they suffered it to continue and so failed in their duty, if they had no knowledge, actual or constructive of the •defect, and were out of possession and control.” The judgment for the plaintiff in that action was reversed and the doctrine of the ■decision is in favor of the defendant in this case.

In the case of Conhocton Stone Road v. Buffalo, New York and Erie Railroad Company (51 N. Y., 582) it was decided by the Commission of Appeals that proof of the mere continuance of a nuisance •on the land of a defendant, without such knowledge or notice of its •existence as to charge him with fault for such continuance, was •■insufficient to maintain an action therefor. This review of the ¡authorities manifests the establishment of the law in our State on a basis that administers relief and affords protection to all; while it imposes liability for wrong and negligence, it exacts no unreasonable vigilance and creates no responsibility where neither wrongful action nor negligent omission are established. "We find no judicial •decision and no principle enunciated in any elementary work that will furnish a basis for a recovery against the defendant in this action. He did not construct the work that became a nuisance, and he did not continue it in any legal sense as we have already seen.

¥e are, therefore, conducted to the conclusion that the judgment and order appealed from should be affirmed, with costs.

Harnaed, P. J., concurred; Cullen, J., not sitting.

Order setting aside verdict and directing judgment for defendant, and judgment therein affirmed, with costs.


text:
    In the Matter of the Compulsory Judicial Settlement, etc., of the Executors of JOHN COLLINS, Deceased.

      Practice — when an appeal ioill not lie from an.interlocutory order of the surrogate.

    A witness having refused to answer a question put to him upon a hearing before a referee, appointed by a surrogate to take .testimony and report the same to 1dm, in proceedings instituted to procure the settlement of the accounts of an executor, an order was made by the surrogate directing the witness to answer the question before the referee, reserving all. questions respecting the competency of the proposed testimony until the coming in of the referee’s report.
    Held, that an appeal from the order was premature; that if the ruling was erroneous, the error would be corrected on an appeal from the final decree.
    Appeal from an order of the surrogate of Kings county, directing a witness to answer a question put'to him on his examination before a referee.

      M. B. Hoxie, for the executors, appellants.

      Julius JJ. Seymour, for the petitioner, respondent.
   Dykman, J.:

This is an appeal from an order of the surrogate of Kings county, directing a witness to answer a question propounded to him before a referee. The proceeding was inaugurated for the settlement of the accounts of the executors of John Collins, deceased. One of the executors died, and when this proceeding was instituted, the surrogate appointed a referee to take testimony and report the same to him. Andrew G. Collins, a son of the testator, was appointed an executor and received letters testamentary on the attainment- of his majority, and he was called as a witness before the referee and requested to read from an account book kept by the deceased executor, O’Leary. Objection was interposed by the counsel for the executor, which was overruled by the referee. The witness refused to answer the question. Thereupon an order was obtained from the surrogate requiring the witness to show cause before him, on a certain day, why he should not be punished for contempt, and on the return day of that order to show cause the surrogate made an order directing the witness to answer the question before the referee, and reserving all questions respecting the competency of the proposed testimony until the coming in of the referee’s report. From that order we have this appeal, which is plainly premature. Interlocutory rulings, respecting the admission or exclusion of testimony on the trial of a cause, cannot be reviewed separately as they are made. The order appealed from directs the witness to answer a question before the referee, and does no more and has no greater effect than the ruling of the referee in favor of the admission of the testimony. If the ruling be erroneous, the error is to be corrected on appeal from the final decree, when all the questions presented by the recorded will fall legitimately under review.

The order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Cullen, J., concurred.

Order of surrogate of Kings county affirmed, with costs.


author: Cullen, J.:

text:
    HENRY M. BIRKETT, as Administrator, etc., of JENNIE WOODHULL BIRKETT, Deceased, Respondent, v. THE KNICKERBOCKER ICE COMPANY, Appellant.

      Negligence — duty of a driver approaching a cross-tcalh in a city street — token it is not negligence, as a matter of law, for a mother to allow a four year old child, to play on the sidewalk — measure of damages in an action to recover for the negligent hilling of an infant.

    Upon the trial of this action brought to recover damages for the death of a child four years of age, who was fatally injured by horses drawing an ice cart of the defendant, it appeared that the child was crossing one of the streets in the city of Brooklyn at a cross-walk; that upon being called to by other children who noticed the approach of the wagon, she hesitated, apparently bewildered, and was struck down by the horses.

      Held, that the driver was bound to anticipate that pedestrians might be at the crossing and to take reasonable care not to injure them, and that the question of the defendant’s negligence was properly left to the jury.
    The mother allowed the child to go out to play on the sidewalk on an August afternoon, in company with her brother, a child of some six years. Some half hour afterwards, while attempting to cross the street alone, the child was injured.

      Held, that it could not be said, as a matter of law, that the mother was negligent in letting the child thus go in the street.

      Hartfield v. Soper (21 Wend., 615) distinguished.
    The court refused to charge the jury that the damages should be restricted to the loss of services during the minority of the child.

      Held, no error; that the action was not for the loss of the child’s services, but was based on the statute, and that the measure of damages would be the whole pecuniary loss occasioned by her death.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Kings County Circuit.

      Albert Stiekney, for the appellant.

      James Troy, for the respondent.
   Cullen, J.:

This is an action for the death of a child, four years of age, who was fatally injured by the horses drawing an iee cart of defendant. The child was crossing the street at a cross-walk, and upon being called to by other children, who noticed the approach of the iee wagon, hesitated, apparently bewildered,, and was struck down by the horses drawing the wagon. The question of the negligence of the driver was certainty property submitted to the jury. The driver was bound to anticipate that pedestrians might be at the crossing, and to take reasonable care not to injure them. (Murphy v. Orr, 96 N. Y., 14.) The evidence of plaintiff’s witnesses, if believed, tended to show the presence of the child at the crossing when the ice wagon was at a sufficient distance for the driver to have observed her and avoided striking her.

The most serious question is the contributory negligence of the deceased. Being non sui juris, she could not be charged with personal negligence, though the negligence of the parents, in suffering her to be in a place of danger, would be imputed to her. To have such negligence defeat the action, the child itself must be guilty of what would be negligence in an older person. .Both these elements must exist, and so the trial judge correctly charged. (McGarry v. Loomis, 63 N. Y., 107.) The exception to the charge, in this respect, was, therefore, not well taken. But a motion was made to dismiss the complaint at the close of the plaintiff’s case, and it is necessary to examine the evidence in these respects, to see if it was plain that, as a matter of law, negligence on the pax’t of both parent and child existed.

The accident happened on an August afternoon. The mother let the child go out to play on the sidewalk in company with her brother, a child of some six years. Some half hour afterwards, while attempting to cross the street alone, the child was injured. We think it cannot be said, as a matter of law, that the mother was negligent in letting the child thus go out in the street. Though the child was assumed on both sides to be non sui juris, still at four and a half years it had some little intelligence; an intelligence which, though slight, is enough to save the great mass of city children of her age, whose sole place for air and recreation is the sidewalk, from peril or injury.

The deceased was not allowed to go unattended; the brother, six years old, was sent with her. The child had not remained out so long that care on the mother’s part would necessarily have warned her that the child was alone.

The case of Hartfield v. Roper (21 Wend., 615) differs much from this. There the child -was but two years old, sitting in the traveled part of a country highway. To leave a child of that age alone was plainly folly or worse. As said by the court, the driver had no reason to anticipate such a situation. But in a populous city, one driving a vehicle must always be on the alert to discover foot passengers, and especially to look out for children. The case is a close one, bxxt on the whole, we think, the question was properly left to the jury as a qxxestion of fact, and that the motion for a nonsuit was rightly denied.

It was not error for the court to refuse to charge the jury that the damages should be restricted to loss of service during minority. This action is not for loss of services. Such an action could not be maintained where death ensued. This action is based on the statute. If the deceased had been of full age, so that the plaintiff had no right to her service, this action would lie, and the measure of damage would be the whole pecuniary loss occasioned by her death. That the deceased was an infant does not change the measure of damages.

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

Present — Barnard, P. J., and Dykman, J.

Judgment affirmed, with costs.


text:
    WILLIAM HAYES, Respondent, v. THE BUSH & DENSLOW MANUFACTURING COMPANY, Appellant.

      Negligence — an employee violating a rule, which is necessarily or habitually violated, is not chargeable with contributory negligence.

    Upon the trial of this action it appeared that the plaintiff, a boy of fifteen years, was employed by the defendant to feed a press with strips of tin, out of which were stamped “ bottoms,” twelve “ bottoms ” out of each strip. While pushing the strip under the punch for the last bottom, his finger passed under the punch and was injured by it. In the factory were conspicuous notices forbidding the placing of hands or fingers between the dies for any purpose. The evidence of the boy tended to show that it was necessary, in the ordinary prosecution of his work, to place his fingers under the punch when the last bottom of the strip was to, be stamped, and that such was the ordinary custom in the factory.

      Held, that it was error to dismiss the complaint on the ground of the contributory negligence of the boy; that if the defendant prosecuted the work in such a manner as to render a violation of the rule necessary or probable, or if it suffered and approved its being habitually disregarded, the rule was rendered inoperative.
    Appeal from a judgment in ^ favor of the defendant, entered upon an order dismissing the complaint made at the Kings County Circuit.

      Charles J. Patterson, for the appellant.

      WilterM. Posébault, for the respondent.
   Cullen, J.:

This action is brought by an employee to recover damages for personal injuries received while working on a press. The plaintiff’s evidence tends to show that the machine was defective, and that injury occurred from such defect. The complaint was dismissed at the circuit because of the contributory negligence of the plaintiff. The plaintiff, a boy of fifteen years, was employed feeding a press with strips of tin, out of which were stamped “ bottoms,” twelve “bottoms” out of each strip. While pushing the strip in under the punch or die for the last bottom, his finger passed under the punch, and the press being set in motion he was injured. In the factory were conspicuous notices forbidding placing hands or fingers between the dies for any purpose. The evidence of the boy tended to show that it was necessary, in the ordinary prosecution of his work, to place his fingers under the punch when the last bottom of the strip was to be stamped, and that such was the ordinary custom in the factory.

We do not think the notice or printed rule conclusive on the question of plaintiff’s negligence. Ordinarily, disobedience of a rule would be negligence, but if the defendant prosecuted the work in a manner that rendered a violation of the rule necessary or probable, or if it suffered and approved its habitual disregard, the rule was inoperative. We think the question of the plaintiff’s negligence should have been submitted to the jury.

Judgment reversed and new tidal ordered, costs to abide event.

Present — Barnard, P, J., and Dtkman, J.

Judgment reversed and new trial granted, costs to abide event.


author: Cullen, J:

text:
    GEORGE G. SICKLES, Appellant, v. THE NEW ROCHELLE BOARD OF HEALTH, Respondent.

      Injunction — when not granted to restrain the enforcement of ordinances Try a hoard of health.

    In this action, brought by the plaintiff to enjoin the defendant, the New Rochelle Board of Health, from interfering with the lands or premises of the plaintiff, and from bringing actions against him for violating its ordinances, the complaint alleged that the defendant had notified him to discontinue the discharge of the contents of drains from his houses into a ditch or water-course in the rear of his premises, and had required him to construct cess-pools ; that the acts complained of were not a nuisance, and that it was not necessary to construct the cess-pools.
    Held, that an order sustaining a demurrer interposed to the complaint should be affirmed, as the complaint set forth no cause for equitable relief
    That so far as the action sought to restrain the imposition of a fine or penalty, the illegality of the defendant’s acts would furnish a complete defense at law.
    That if it were considered as brought to restrain a trespass, it was not a proper case for an injunction, as the legality of the acts of the hoard could be determined in an action in trespass.
    Appeal from a judgment, entered in Westell ester county upon an order sustaining a demurrer to the complaint.

      W. H. H. Russell, for the appellant.

      Charles Ii. Young, for the respondent.
   Cullen, J:

This is an action to enjoin the defendant from interfering with the lands or premises of the plaintiff, and from suing the plaintiff for violating its ordinance.

The defendant notified the plaintiff to discontinue the discharge of drains from his houses into a ditch or water-course in the rear, and to construct a cess-pool. The complaint alleges that the acts complained of are not a nuisance, and that the cess-pool is unnecessary. The defendant’s demurrer to this complaint was sustained at Special Term, and from the order there made this appeal is taken. We think that the complaint set forth no right to equitable relief. So far as this action seeks to restrain the imposition of a fine or penalty, it should not be maintained, because if the defendant’s acts are illegal, the plaintiff has a complete defense at law to any suit to enforce the penalty. (Wallack v. Juvenile Society, 67 N. Y., 23.) If the action is to be considered as also seeking to restrain a trespass by defendant (which is very doubtful.), still it is not a proper case for injunction. By the statute the duty is imposed on the defendant to examine any place or premises- where nuisances or conditions dangerous to life or health are. known or believed to exist, and to order the suppression and removal of such nuisances or conditions, and to make all orders and regulations as they shall think necessary and proper for the preservation of life and health. (Chap. 270, Laws 1885.) The matter of drains and cess-pools is properly within the cognizance of the board of health. The subject-matter being within their jurisdiction, it is not proper that their action should be restrained, and the question first tried in equity, whether the thing complained of is a nuisance. If the board proceed without authority or irregularity (though in what respect these irregularities exist is not stated in the complaint), the plaintiff has a complete remedy by a suit in trespass. No ground of equitable relief in this aspect of the case is shown.

The order sustaining the demurrer should be affirmed, with costs.

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

Order sustaining demurrer to complaint and judgment therein affirmed.


text:
    GEORGE S. WHEELER, Appellant, v. THEODORE F. JACKSON, as Registrar of Arrears of the City of Brooklyn, Respondent. WILLIAM M. MACFARLANE, Appellant, v. SAME, Respondent.

      Constitutional law — right of the legislature to fix a time within which rights, then existing under prior contracts, must he enforced —1885, chap. 405.
    Chapter 405 of 1885, amending the charter of the city of Brooklyn, provides that no action or special proceeding shall thereafter he brought or maintained against the city of Brooklyn, or the registrar of arrears of said city, to compel the execution or delivery of a lease upon any sale for taxes, assessments or water rates made more than eight years prior to the passage of the act, unless such action or special proceeding shall be commenced within six months after the passage of the act. It further provides that after the expiration of the said six months it shall be the duty of the registrar of arrears to cancel in his office all such sales made more than eight years prior to the passage of the act upon which no leases shall have been given and no action commenced.
    The plaintiffs, who held certificates for such sales, bearing dates extending from March, 1868, to May, 1877, by the terms of which they were entitled to leases after the expiration of the two years, unless redeemed, or to the money paid without interest, if any irregularity was discovered, brought this action to restrain the registrar of arrears from canceling such sales, upon the ground that the provision of the act requiring such cancellation was unconstitutional and void, as impairing the obligation of their contracts.

      Held, that the act did not impair the obligation of any contract, but operated as a statute of limitations, fixing a time within which the rights secured by the contracts must be enforced, and that as the time allowed for that purpose was a reasonable one, the act was valid.
    Appeals from judgments, entered upon orders sustaining demurrers interposed to the complaint, and from orders denying motions for temporary injunctions.
    The actions were brought by the respective plaintiffs, who had purchased property in the city of Brooklyn upon sales for unpaid taxes and assessments, to restrain the registrar of arrears from canceling said certificates as required by chapter 405 of 1885, upon the ground that the said act violated the provisions of the Constitution in impairing the obligations of a contract.
    The following opinion was delivered at the Special Term by Cullen, J.:
    Under the provisions of the charter the purchaser at a tax sale is entitled to a lease of the premises sold after the expiration of two years, unless the sale has been redeemed by the owner. The purchaser obtains for his purchase-money the right to possession oi the land for the term for which it was sold. The statute, the validity of which is assailed, directs that after the expiration ot six months from the date of the act, as to sales made more than .eight years previous, no lease shall be given, and the sales shall be canceled by the registrar of arrears. The effect of this act is to compel the tax buyer to take out a iease, or bring an action to foreclose the sale within six months, or in default thereof to forfeit his purchase. No question is made that the time allowed by the act is not reasonable; but it is claimed that the right of the purchaser * cannot be subjected to any limit not prescribed at the time of the sale to him. I think this claim untenable. It is settled by authority that the lien of a tax may be barred by the statute of limitations (Fisher v. Mayor, eta., 67 N. Y., 73), and it seems conceded that a sale falls within the same rule. (Jmlcins v. Fahey, 73 N. Y., 364.) This court ■ has held, in Orr v. Femsen, that tax and assessment sales more than twenty years old, upon which no lease had been executed, did not constitute valid objections to a title offered a purchaser at a judicial sale. If the claims of the tax-buyers are subject to any statute of limitations, it is undoubtedly within the power of the legislature to shorten the time prescribed by the statute, so long as a reasonable time is left after such alteration in which the claim may be enforced. (Morse v. Goold, 11 N. Y., 288 ; Hawkins v. Barney, 5 Peters, 466 ; Cooley Const. Lim., 357.)
    As before stated, the right acquired by the tax-buyer was the right to possession of the land. This right was vested, and doubtless could not be invaded by legislation. But the legislature might act on the remedy and prescribe any formalities to be observed by the buyer ; and for a failure to comply with such formalities direct the forfeiture of the rights acquired, always provided that the substance of the contract was not affected. In this case the buyers had the right to a lease. That right is not taken away, but it is provided that the lease must be taken in six months, otherwise that the right be lost. In Butler v. Palmer (1 Hill, 324), mortgaged premises had been sold under foreclosure during the existence of a statute giving the mortgagor or his assignee the right to redeem at any time within one year from the sale. Subsequently the statute was repealed, the repeal to take effect on November first following, less than a year after the sale mentioned. It was held that the statute affected prior sales, and that the defendant’s right to redeem was lost after November 1, 1838. I think the principle in this ease is not to be distinguished from the one decided in the case cited. It follows that the act under consideration is valid, and that the motion for an injunction should be denied and the application for a mandamus granted. Ten dollars costs to prevailing party in each case.

      John J. Townsend, for the appellants.

      Almet F. Jenks and liiahard B. Greenwood, for the respondent.
   Dykman, J.:

It is the object of this action to procure a perpetual injunction against the defendant, who is the registrar of arrears of the city of Brooklyn, which shall restrain and prevent the cancellation of certain sales for taxes, and also the records of such sales in his office. The plaintiffs in these actions became purchasers at various sales of real property for unpaid taxes and assessments, and received certificates of such sales bearing dates from March 17,1868, to May 22, 1877, inclusive. By the terms of these certificates the holders were, entitled to a lease of the lots designated therein after the expiration of two years from their respective dates unless they were redeemed, and if any irregularity was discovered they could recover the money paid without interest. Such were the rights and such the relative situation of these parties down to the 6th day of June, 1885, when an act was passed by the legislature of the State, amending the charter of the city in many respects enumerated therein.

The portion brought into view by this action is section 15, in these words: “None of the provisions of this act hereinbefore contained shall affect any sale for taxes, assessments or water rates heretofore made in said city, or the rights of the parties or the proceedings thereunder, but the same shall remain the same as though this act had not been passed, provided, however, that no action or special proceeding shall hereafter be brought or maintained against the city of Brooklyn, or the registrar of arrears of said city, to compel the execution or delivery of a lease upon any sale for taxes, assessments or water rates made more than eight years prior to the passage of this act unless such action or special proceeding is commenced within six months after the passage of this act, and notice thereof filed in the office of -the registrar of ax-rears, but this pi-ovision shall not opex-ate to extend any statute of limitations now applicable in such cases, and after the expiration of six months from the passage of this act it shall be .the duty of the registi-ar of arrears to cancel in his office all such sales made more than eight years prior to the passage of this act, upon which no lease shall have been given and no action commenced, and notice thereof filed as aforesaid, within the pex-iod hex-einbefox-e limited therefor-, and thereupon the lien of all such certificates of sale shall cease and determine.” i ' "

It is the claim of these plaintiffs that the second clause of this section of the law annxxls their -contracts, and is therefox-e void, because it is interdicted by that portion of the Constitution which inhibits the passage of laws impairing the obligation of contracts. If the fact assumed in this proposition was established, the result claimed would necessarily follow, but the difficulty encountered by the plaintiffs is that the assumption cannot be maintained. The section of the law construed together does not operate on the rights of the plaintiffs except to preserve them. It imposes on the registrar of arrears a duty to cancel in his office all such sales made more than eight years prior to the passage of the law, where no leases have been given, six months after the passage of the act. This is a short statute of limitations, affording the plaintiffs six months from its passage in which to exercise their right to demand their leases; after the expiration of that period their rights were barred, and their sales were required to be canceled.

The statute left a substantial remedy remaining in the hands of the plaintiffs, and, therefore, the obligation of their contract was not impaired within the meaning and prohibition of the fundamental law. That restraint extends to the impairment and suspension of the duty of performance of the contract, and not to a modification of the remedy in the wisdom of the legislature. The limitations prescribed by positive law constitute no part of a contract, and legislation which merely alters or limits a remedy, but yet preserves an existing remedy in substance in the ordinary course of justice, is not violative of the organic law. (Cooley’s Const. Lim., 358.) Before the passage of the law under consideration the claim of a tax purchaser might be barred by lapse of time, and all that this affects is the curtailment of that period.

Our view coincides with the opinion of Mr. Justice Cullen delivered at the Special Term, and the judgment there rendered should be affirmed, with costs.

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

Judgment affirmed, with costs.


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

text:
    BENJAMIN S. MILLS, as Executor, etc., of CLARISSA DARLING, Deceased, Respondent, v. LESTER H. DAVIS, as Executor, etc., of ELIZABETH JAYNE, Deceased, Appellant.

      Evidence — admissibility of proof as to indorsements of payments on a note, to remove the bar of the statute of limitations — testimony as to the time when an indorsement of a payment was made on a note — when it is not inadmissible under Code of Oivil Procedure, sec. 829.
    This action was brought by the plaintiff, as the executor of Clarissa Darling, deceased, to recover the amount due upon a promissory note for $300, dated November 17, 1864, made by the defendant’s testatrix, to the order of the said Clarissa Darling. The maker of the note died in 1884. The defendant having pleaded the statute of limitations as a defense to the action, the plaintiff was allowed, against the defendant's objection and exception, to prove by his own testimony and that of his wife, that indorsements of the payment of interest were made upon the note during the lifetime of the maker by the plaintiff, as the agent of the payee, during her lifetime, and thereafter by him as executor.

      Held, that neither the plaintiff nor his wifé were disqualified by section 829 of the Code of Civil Procedure from testifying as to the time at which the indorsements were made.
    That the indorsements were admissible as being in the nature of declarations against interest, without proof that they were made in the presence of the debtor, or at the exact time at which the payments were made. (Barnard, P. J., dissenting.)

      Boseboom v. Billington (17 Johns., 182); Bisley v. Wightman (13 Hun, 163) followed ; McLaren v. McMa/rtin (36 N. Y., 88) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered in Rings county upon the report of a referee.
    The action was brought to recover the amount alleged to be due on a promissory note for $300 made by Elizabeth Jayne, the defendant’s testatrix, to the order of one Clarissa Darling, the plaintiff’s testatrix, which was duly presented to the defendant and by him disputed and duly referred. pursuant to the statute. The defense is that the note is without consideration, and that a recovery is barred by the statute of limitations. The note is dated November 17, 1861, and has upon it six different indorsements of interest, one of which was made by plaintiff, as agent of the payee, during her lifetime and all the others by himself as executor of the payee’s estate and during the lifetime of the maker. It was not shown that it was ever produced to the maker thereof, or that she ever paid a dollar on it, or that in any way she ever recognized it or knew that any indorsements had been made upon it.

      Thomas J. Ritoh, Jr., for the appellant.

      Thomas S. Strong, for the respondent.
   Cullen, J.:

The indorsements of the payment of interests, if proved to have been made at or about the time they bear date, were competent evidence to take the note out of the statute of limitations. (Roseboom v. Billington, 17 Johns., 182; Risley v. Wightman, 13 Hun, 163.) Neither the plaintiff nor his wife were disqualified from testifying, as to the time indorsements were made. The indorsements, though evidence of a personal transaction with the deceased debtor, were not themselves such transactions. For to make them competent evidence, it was not necessary to show that they were made in the presence of the debtor, nor at the exact time of the payment by the debtor. The theory on which such indorsements are admitted in evidence is not that the debtor was cognizant of them, but that if made before the obligation was outlawed, they are in the nature of declarations against interest. The rule allowing such indorsements as evidence, though severely criticised, seems settled by authority here and in England. The case of McLaren v. McMartin (36 N. Y., 88) is not in conflict with it. The note in that caso, even accepting as the fact the payment of 'interest indorsed on it, was outlawed before the death of the testator. It was held that the administrator could not, by a subsequent payment, revive the debt. The remarks of the learned justice delivering the opinion that the indorsements written by the payee were mere declarations in his own favor were obiter, and possibly may have referred to the fact that there was no evidence as to the time the indorsement was made. However, the case was decided upon the other ground.

The note jprima facie imported a consideration. If given without consideration, as claimed by defendant on this appeal, the defendant should have requested the referee so to find. There was no such request, and there is no exception in the case that presents this question to us for review. Tke judgment should be affirmed, with costs.

Dykman, J., concurred.

Barnard, P. J.

(dissenting):

There is no proof in the case that any payment was made'upon the note by the maker or by any one for her. An indorsement on the note, if made by the holder or by any one for her, would be an admission against herself that she had received what she admits to have received. The defendants claim nothing by reason of the admission, and the case stands upon the sole question whether a holder of the note can by indorsement, without payments, keep alive a note. I think it clear she cannot even if she made the indorsement of interest or authorized it. Still less, if her son-in-law made such indorsements without her knowledge. The case of Roseboom v. Billington (17 Johns., 182) is not an authority in favor of a revival of, or the continuance of a claim by an indorsement like this. The evidence of the indorsements was improperly received under section 829 of the Code. If the indorsements were acts of the plaintiff’s testator, the plaintiff could not prove them in his own behalf. It is no answer to say that the indorsements are evidence for a jury as admissions of a party to a note against her own interest. Such admissions must be proven by a witness unobjectionable, under section 829 of the Code. I do not think the indorsements were made in the lifetime of the testator. The parties who testify to it are interested and their examination is not convincing, but quite the reverse.

The judgment should be reversed and a new trial granted at circuit, with costs to abide event. ■ '■ ■

Judgment and order confirming report of referee affirmed, with costs.