author: Macomber,

text:
    John Maroney et al., App’lts, v. Margaret Boyle and Frank W. Davis, Impl’d, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Execution—Title oe pubchaseb—Vendob’s lien.
    A purchaser of real estate at sheriff's sale made under a judgment of a competent court, who has advanced his money in g;ood_ faith in the purchase of what he believed to be an unincumbered title in fact, as well as on the record, must be held to have a title paramount in law to the unrecorded and secret lien for a part of the purchase moneys of the vendor who had conveyed the premises to the judgment debtor.
    Appeal by the plaintiffs from a judgment entered in Cattaraugus county on the 24th day of ¡November, 1890, upon the decision of the court at special term dismissing the plaintiffs’ com- ■ plaint upon the merits.

      Frank Bumsey, for app’lts; F. D. Northrup, for resp’ts.
   Macomber,

form, this action is for the purpose of establishing and enforcing a lien for the. purchase money of the lands described in the complaint, which were sold by the plaintiffs to the defendant, Margaret Boyle, August 28, 1887, for a consideration expressed at $2,500. These lands consist of a lot situated on the reservation of the Seneca nation of ISTew York Indians, subject to an annual rental and have a store building thereon.- The purchaser paid in cash the sum of $500 at the time of the conveyance, and gave her note for the residue. Soon thereafter, she conveyed the lands to the defendant, Edward D. Boyle, who, when this action was brought, had paid upon such purchase the sum of $500, in sums of $80 and $420 in cash, and the balance by a discharge of the purchaser’s interest in the estate of Peter Boyle, deceased, which was represented by Margaret Boyle as administratrix, and certain other items of account amounting to about $150.

The deed to Margaret Boyle ran to her as the administratrix of the estate of Peter Boyle, and the notes which she gave for the unpaid purchase moneys were signed by her in such representative capacity. The defendant, Edward D. Boyle, became embarrassed in business, and numerous judgments were rendered against him, which became liens on the property so conveyed, and these lands were, upon executions issued upon such judgments, sold to the defendant, Frank W. Davis, by the proper sheriff, and a certificate of such sale given. At the time of such purchase, the defendant, Frank W. Davis, had no knowledge or notice that the plaintiffs had, or claimed to have, any lien upon the premises for the unpaid purchase moneys. There is evidence, also, to show that when the plaintiffs sold and conveyed the land to Margaret Boyle, they had reason to believe that the purchase was made by her for the purpose of conveying the same to Edward D. Boyle, who was to, and who did in fact, make improvements upon the lands.

Upon the whole evidence the court at special term decided, as a matter of fact, that the plaintiffs in making the deed and accepting the note relied on the individual responsibility and pecuniary ability of the defendant, Margaret Boyle, for the payment of the unpaid portion of the purchase moneys; and that the purchaser never had any notice, knowledge or information until after he had purchased the judgments, and received the sheriff’s certificate of sale, and had fully paid for the same, that the plaintiffs, or either of them, ever had, or claimed to have, a lien upon or interest in these lands after the same was conveyed by them to the defendant, Margaret Boyle. That the plaintiffs had, as between them and the purchaser, an equitable lien upon the real estate for the unpaid purchase moneys, admits of no doubt, and is not contested by t he respondents. This is a familiar rule in equity jurisprudence, and requires the citation of no .authorities to support it. But the facts disclosed at the trial of this case show that other rights have intervened, namely, those of a purchaser in good faith for value, and without notice of the plaintiffs’ lien. On principle it would seem to be clear that a purchaser at a sheriff’s sale, made under a judgment of a competent court, and who advanced his moneys in good faith in the purchase of what he believed to be an unincumbered title in fact, as well as on the record, must be held to have a title paramount in law to'the unrecorded and secret lien for a part of the unpaid purchase moneys of the vendor, who had conveyed the real estate to the judgment debtor. He must be deemed to be a purchaser for a valuable consideration without notice. Such was the decision in the case of Hulett v. Whipple, 58 Barb., 224.

It is argued by the learned counsel for the appellant that the case before us is distinguishable from that of Hulett v. Whipple, supra, because when this action was brought the defendant had not received the sheriff’s deed under this sale, but only held the certificate of the sale; whereas, in Hulett v. Whipple, it is claimed that the deed had actually been delivered. But to our minds this fact, even though it actually existed, would make no difference in our conclusions, because the essential thing upon which the court acted in the case cited, and upon which we base our judgment in this case, is that the purchaser at a judicial sale had actually paid . his money, in good faith, without knowledge or notice to put him upon inquiry, such as might lead to the disclosure of an unrecorded, and hence secret, lien for the unpaid purchase moneys.

For this reason, we think the judgment appealed from should be affirmed.

Judgment appealed from affirmed, with costs.

Dwight, P. J., concurs; Lewis, J., not sitting.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    John T. Cunningham, Resp’t, v. John M. Fitzgerald, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Injunction—Change of geode of steeet.
    Where the owner of a tract of land has sold lots thereon fronting upon a public street,and thereafter, without any ordinance or other public authority, attempts to lower the grade of the street for the purpose of reclaiming for public use certain other premises to which the street leads, his grantees are entitled to an injunction to restrain the prosecution of such work.
    Appeal by the defendant from a judgment entered in Monroe county April 15, 1891, upon the report of a referee.

      John Van Voorhis, for app’lt; H. A. Sutherland, for resp’t
   Macomber, J.

This appeal was brought to restrain the defendant from lowering the grade of a highway in the village of . Charlotte, called St. Johns Park, and to recover damages for the digging and excavation therein already made by the defendants in front of the plaintiff’s premises.

The learned referee has made a report in which he finds that the damage already suffered by the plaintiff is the sum of fifty dollars, and further, that the' defendant should be restrained from carrying out his purpose to lower the grade of the street. Judgment was accordingly entered upon such report, and from that judgment this appeal is taken.

Prior to the year 1884 this street, which was then known as Hughes Park, had been laid out and extended through the village of Charlotte running east and west, and upon each side thereof there had been plotted lots fronting on the street, and properly numbered, in accordance with a map filed in the office of the clerk of the county of Monroe. Afterwards the defendant bought this tract of land, and then sold to the plaintiff lot No. 18 by a warranty deed in which the land was described as being part of lot No. 30 in the town of Greece, designated on the map, being fifty feet front on the north side of the park and extending back of equal width one hundred and twenty-five feet. The deed contained a provision that the lot should bear its just proportion of maintaining the park. The plaintiff immediately entered into possession of this property, and has continued to occupy it since that time. When the plaintiff purchased this lot, the roadway had been improved to some extent by being scraped up towards the middle thereof from the sides, leaving a shallow gutter upon each side of the park or street, presenting a uniform grade from the original highway, known as the Boulevard, east to about the east line of the plaintiff’s premises.

It is shown that the defendant, after selling this lot, and not for the purpose of improving the street or park, but for the purpose of reclaiming for public use certain other premises to which this park or street leads, began the excavation in question, and, except for the preliminary injunction, he would have so excavated in front of the plaintiff’s premises several feet, rendering access thereto difficult, and materially injuring the value thereof.

No ordinance or other public authority for such change of grade is shown to have been given to the defendant. Under these facts, the conclusion of the learned referee, that the plaintiff is entitled to an injunction restraining the prosecution of such work, was correct and is well supported by authority. The plaintiff’s title extended to the middle of this street or park. Perrin v. N. Y. Cent. R. R. Co., 36 N. Y., 120; Story v. N. Y. Elevated R. R. Co., 90 id., 122. Such being the case, the proprietor or the owner of this tract of land had no right to change the grade of the street without the consent of abutting owners, or without the authority of some public statute or ordinance. Robert v. Sadler, 104 N. Y., 229; 5 St. Rep., 594.

A discussion of the facts further than is involved incidentally in the foregoing remarks would not be profitable, for in reality there is very little conflict in the evidence. But if there were a conflict in the evidence, and it was claimed that different conclusions should be drawn therefrom than those of the referee, we should hesitate to differ from the results reached by him, because, under stipulation of the parties, the referee, accompanied by them and their counsel, took an actual view of the premises in question. The referee consequently was put in a place of advantage, upon the facts, by his personal inspection of the premises which the court on appeal does not possess. Upon any point made arising upon a supposed conflict of evidence, we cannot, under these circumstances, properly disturb the conclusions of the referee, as we held in the case of Crouch v. Gutmann, 32 St. Rep., 254, where the principle is shown to be well supported by antecedent authority.

There was a manifest error in the printing of the deed in the record which was corrected on the argument by handing to the court the original conveyance.

The referee appears to have tried the case with great care and discernment, and the judgment entered upon his report should be affirmed.

Dwight, P. J., and Lewis, J., concur.


author: Lewis, J.

text:
    Orin S. Bacon, Jr., App’lt, v. Morris W. Hanna, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Bills and notes—Protest.
    A bank notary, relying on a business directory, mailed a notice of protest to an endorser addressed -to the wrong town; the indorser was, to the knowledge of the notary, the supervisor of the adjoining town, where he received his mail, and his proper address could have been easily ascertained upon inquiry. _ About a month later the note was sent to the proper address and received. Held, that the notary was not justified in relying solely on the directory, and that due diligence was not used in protesting the note.

      % Same—Evidence.
    In such a case evidence as to the inquiry made by the notary when he purchased the directory as to how the residences and post office addresses were acquired, is not admissible where it is not shown of whom he inquired or that the person inquired of had any personal knowledge on the subject.
    Appeal from judgment of the supreme court, entered in the Ontario county clerk’s office, in favor of the defendant against the plaintiff, by direction of the court, dismissing the plaintiff’s complaint upon the merits.

      John Gillette, for app’lt; Edwin Hides, for resp’t.
   Lewis, J.

This action was brought against' the respondent as an endorser upon a promissory note, which fell due June 10, 1890. The respondent was an accommodation endorser. The sole question presented upon this appeal is as to whether the note was properly- protested as to the respondent. There was no conflict in the evidence, and hence the question whether due diligence was used in protesting the note was for the "decision of the court.

Questions of diligence having been reduced to a good degree of certainty by commercial usage and a long course of legal decisions, they assume the character of questions of law, and when facts are ascertained, what is diligence is a question of law. Daniel on Negotiable Instruments, § 1058; Spencer v. Bank of Salina, 3 Hill, 520.

The note at the time it fell due was the property of the banking house of McKechnie & Co. of Canandaigua. The notary protesting the note was its cashier. He duly demanded payment of the note the day it matured, payment was refused, and he gave due notice thereof to the maker and the prior endorsers. The notice to the respondent he deposited in the post office at Canandaigua, directed to him “Canandaigua, New York,” June 10, 1890. The notice was subsequently, and about July 7, 1890, re-directed to the respondent to a post office in the town of Hopewell, in which town he resided, and he received the same on said 7th day of July. The respondent had been for many years a resident of the town of Hopewell; his post office address was Chapinville in that town. He had never received his mail matter at the Canandaigua post office. The notary had known the respondent for many years. He had often seen him about the post office, but had never seen him receive any mail from that office. The respondent was the supervisor of the town of Hopewell for the year 1890, which fact was known to the notary at the time of sending the notice.. The notary testified that he had been to the respondent’s house, but not knowing the boundary line between Canandaigua and Hopewell, he was not certain in which town he resided. On the day of sending the notice of protest he consulted Boyd’s directory for the year 1890 to ascertain the respondent’s residence, and found therein the name “ Morris W. Hanna, 158 Canandaigua,” and supposing that to be his residence addressed to him the notice as stated. Boyd’s directory was published in the city of Syracuse, and was used largely by bankers and notaries for the purpose of ascertaining the residence of people. Six months prior to protesting the note in suit the notary protested a note, of which the one in question was a renewal, and upon which note the respondent was an endorser.' In protesting that note, he mailed the notice addressed to the respondent at the Chapinville post office, in the town of Hopewell ; but in that instance there was appended to the name of the respondent, endorsed upon the note, the word “ Chapinville.” The respondent testified that he was residing in the town of Hopewell at the time the note was protested, and had resided in that town for more than twenty years; that he whs the supervisor of •that town for the year 1890, and that he had never received any mail matter from the post office at Canandaigua. The first notice he received of the dishonor of the note was by letter on the 7th of July, 1890.

At the close of the evidence the court held that the plaintiff had failed to show due diligence in protesting the note and refused to submit any question to the jury, and dismissed the plaintiff’s complaint. The respondent being a resident of the town of Hopewell, the notice should have been addressed to him to a post office in that town. Chapter 141, Laws of 1835, § 1.

"We think the trial court correctly held the appellant had failed to show due diligence in protesting the note. While the notary had an impression, as he testified, that the respondent resided in Canandaigua, he was uncertain about it. He knew that the respondent was a supervisor of an adjoining town. A supervisor must be a resident of the town he represents. 1R. S.,8th ed., 889, § 11. The notary would have readily learned, had he inquired of business men in the village of Canandaigua, where the respondent resided. He would have learned, had he inquired at the post-office in Canandaigua, that the respondent did not receive his mail matter at that office. He chose to rely upon an indefinite impression as to the respondent’s residence, and the information derived from Boyd’s directory, and neglected means which were at hand. The entry he found in the directory read, “ Hanna, Morris W., 158 Canandaigua.” No street is mentioned unless the meaning of the entry was that his residence was 158 Canandaigua street; the notice was not directed to any street number. He was not justified in relying solely upon the directory. Greenwich Bank v. De Groot, 7 Hun, 210. (The court held, on the evidence presented, that the owner of the note did not exercise due diligence to ascertain the correct address of the respondent.)

We think the court correctly excluded the evidence as to the inquiry made by the notary when he purchased the directory as to how the residences and post-offices addresses of the people were acquired. It was not stated of whom the inquiry was made, whether of an agent who was offering to sell the book, or that the person inquired of had any personal knowledge as to how the information was obtained. The question as to whether the notary at the time he protested the note recollected about the protest of the prior note was immaterial. The question was not as to the good faith of the notary in directing the notice, but it was a question of diligence.

The judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


author: Per Curiam.

text:
    In the Matter of the Application of Theodore A. Myers, as Adm’r, for an Additional Allowance. In the Matter of the Petition of Louisa Myers for an Additional Allowance.

      (Court of Appeals,

      Filed March 22, 1892.)

    Executors and administrators—Costs.
    In this proceeding to compel payment of income of a trust fund to the • beneficiaries, it not being conceded that there was to be any accumulation of income, Held, that the direction of the surrogate that the costs be paid from the principal of the trust fund should not be disturbed.
    Motion to amend remittitur.

      Foster & Thomson and George M. Thomson, for motion; Benjamin Tuska, opposed.

       See’43 St. Rep., 366.

   Per Curiam.

This is a motion to amend the remittitur so as to direct that the costs be paid out of the principal of the trust estate and not from a portion of the income, and we think it should be granted.

The court received the impression upon the argument that it was conceded that the income of one-half of the trust fund, to which Matilda Myers was entitled in her lifetime, must accumulate until the death of her sister, and that the costs might properly be paid out of such income in accordance with the suggestion in the last opinion of Justice Daniels at general term. It seems that this was a misapprehension of the position of counsel, and that the question of the disposition of this income should not be embarrassed by any intimation or suggestion from the court upon the determination of this appeal. The remittitur should be amended . by striking out the modification of the surrogate’s decree in this respect and directing an affirmance of the decree, with costs of both parties in this court and the supreme court to be paid out of the principal of the estate in the hands of the executors.

All concur.


text:
    Lydia A. Glazier, Resp’t, v. The Town of Hebron. App’lt.

      (Court of Appeals,

      Filed March 22, 1892.)

    JTegligence—Highways.
    In an action for injuries caused by backing off an alleged unprotected highway the plaintiff’s evidence showed that there were trees and brush along the side of the highway ; that there was no place where a horse could be driven off except at right angles, and that the opening through which plaintiff’s horse backed the cutter was only eight to twelve feet wide. Held, that no negligence on the part of the town was shown,
    Motion for re-argument.

      J. Sanford Potter, for motion; L. H. Píorthrwp, opposed.

       See 43 St. Rep., 319.

   Per Curiam.

The learned counsel for the plaintiff is mistaken in the assumption that there is any evidence in the case which is in trutli opposed to the view which was taken of the facts by this court. The plaintiff herself in her testimony said, “along the northerly side of the road there are trees all along the bank find the trees are quite close together, that is, between the road and the pond itself; sometimes a little clump of trees growing and ■sometimes single trees growing in addition to the trees, there are .and were at that time considerable bushes all along the road between the road and the pond. This accident was a little while .after the storm called the blizzard of 1888. There had been a very severe snow storm just before the accident and the roads all over the country had been drifted more or less, in many places .so that shovelers were required to open the roads to permit teams to pass.”

She further said that at the place of the accident there were .■some large and small trees and bush. There were trees on either side and they had long branches extending from each which may ¡have extended across the opening at that time and may have lapped each other, but there was an opening through which she •could see. She could not recollect whether there was any place along that pond at the time of the accident where a horse and sleigh could have been driven into the pond, unless at right angles . to the road. The other witnesses said they knew of none. The •accident in truth happened by the horse backing down in just that way.

The distance between the trees at this place was variously estimated at from eight to twelve feet, the latter being the greatest ■distance testified to by any one. Another of plaintiff’s witnesses said this space was about twelve feet and there were several other places wide enough for a horse and cutter to reach the pond if they went in backwards ; there was nothing but trees and bush between the brink of the highway and the water to prevent a-, vehicle from going into the water. The evidence in substance-entirely bears out the statement of the court as to the condition of the road, the existence of the trees, the shrubs and the distance-between the trees at the point in question.

We think that from the uncontradicted evidence there was no negligence proved in the case and the motion for a re-argument, should be denied, with ten dollars costs.

All concur.


text:
    Russell W. Ostrander, App’lt, v. Joseph Hart, Ex’r, et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed March 22, 1892.)

    Foreclosure—Statutory—Notice op bale.
    A foreclosure by advertisement is binding upon an assignee in bankruptcy who was appointed subsequent to the first publication of the notice, although notice of sale was not served upon him. The statute requires-service on a subsequent grantee only, in case his conveyance is on record, at the time of the first publication. • , e
    Motion for reargument.

      William Settle and M Countryman, for motion; James B. Loch-wood, opposed.
   Per Curiam.

This motion is based upon the position that the statutory foreclosure of the mortgage in question is not binding on the assignee in bankruptcy, because a copy of the notice of sale was not served upon him.

' The date of the first publication of the notice was March 27, 1879, but the assignee was not appointed until April 11, 1879. The conveyance from the register to the assignee (U. S. R. S., § 5044), was made about April 17, 1879, and it does not appear •that it was ever recorded in the county where the premises are-situated.

The assignee was a “subsequent grantee” within the meaning, of the statute authorizing the foreclosure of mortgages by advertisement that was in forcé at the date of the foreclosure under consideration. 3 R S. (6th ed.), 847, § 3 ; Laws 1844, chap. 346, § 1; Code Civ. Pro., § 2388. That statute required service of the notice of sale upon a subsequent grantee only in case his conveyance was “ upon record at the time of the first publication, of the notice.” Id.; Decker v. Boice, 19 Hun, 152; 83 N. Y., 215; Raynor v. Raynor, 21 Hun, 36; 94 N. Y., 248.

The motion should, therefore, be denied, with costs.

All concur. _


author: Bradley, J.

text:
    David H. James, App’lt, v. Isaac Sammis et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed March, 22, 1892.)

    1. Highways—Encroachments iiy fence.
    In an action against commissioners of highways for trespass in removing a fence erected in 1869, it appeared that the premises on which it stood had been used as a highway for forty years prior to that time. Held, that upon the extension of the provisions of the Revised Statutes to the Long Island counties by Laws 1865, chap. 6, the road became a public highway. The fence being thereafter erected and the road having become a public highway by user for twenty years the commissioners were justified in removing said fence as an encroachment.
    ‘3. Same—Laws 1830, chap. 56.
    The act of 1830, chap. 56, did not provide that public highways would not be created by twenty years user as such, but merely limited, as there mentioned, the duty of the commissioners to cause them to be entered of record.
    ,'3. Same.
    Where there was an informal statement as to the breadth in the order laying out a road, and the notice did not specify the breadth, but both were on one paper, Held, a compliance with the provision of the statute requiring the specification in the order and notice.
    Appeal from judgment entered upon order of general term vof the supreme court, in the second judicial department, affirming judgment entered on report of a referee in favor of the defendants.

      Charles B. Street, for app’lt; Henry C. Platt, for resp’ts Samis, Ritter and Darling; N. S. AcJcerly, for resp’t Smith; W. B. Codding, for the other resp’ts. •

       Affirming 31 St. Rep., 192.

   Bradley, J.

The cause of action alleged is trespass upon the ■plaintiff’s land in the town of Huntington, county of Suffolk, by entering upon it, taking down his fence, and doing other injury to the premises. The-defendants deny the alleged wrongful entry, .and by way of justification allege that the locus in quo was a public highway, and that what they did there was done pursuant to lawful authority in removal of encroachments upon or obstructions within such highway. Whether that defense was sustained by the evidence is the main question requiring consideration. The plaintiff’s premises are bounded on the south by the highway, and its northern boundary is the subject of controversy. The ■earliest evidence on the subject of a highway in that locality was .represented by an order of three commissioners purporting to have been made May 26. 1746, in pursuance of an act of general .assembly, in which it is-stated that they,' “ Commissioners chosen lor the town of Huntington,” laid out “ one highway two rods wide between the land of Thomas Bunce and Edward Baylis on ■the north side, and Alexander Bryan, Jr., on the south side, beginning near the said Baylis’ shipyard, bounded by a white oak sapling or stump on the north, and on ye south side of the highway by a maple sapling, so running easterly to Heck Path.” It appears that the location so described is substantially that of the highway in question, but the boundary lines of it as there repre.seated could not be definitely established by evidence, as the oak and maple saplings did not, within the memory of any of the witnesses, remain to mark the outer lines so described of the road. By several deeds of conveyance of the lands on either side of the highway from a time as early as 1816 it is referred to as a boundary. And evidence of witnesses relating to the situation for a period of sixty years before the time of the alleged trespass tended to prove the location of fences on either side of the highway, and, in reference to them, of certain trees which were referred to for the purpose of identifying the location of the fences prior to 1869, when that on the north side of the highway was moved south.

The fence in the location to which it was changed constituted the alleged encroachment upon the highway or obstruction in it. And with a view to proceedings to cause its removal the commissioners of highways of the town of Huntington, on September 7, 1885, made an order which purported to define and describe the highway. This order, with a map of the highway so described, was made of record in the town. And on March 29, 1886, the-commissioners made a further order describing the encroachment of the fence so moved, etc., and directing its removal. This order, annexed to a notice addressed to him, was served upon the plaintiff, and after the expiration of sixty days the commissioners directed the overseer of that road district to move the fence. It was done pursuant to such instruction under the direction of the overseer. The referee found that the place where this fence was situated was part of a public highway, which had been used as such continuously for at least forty years prior and up to the time when the fence was erected in 1869.- This finding the plaintiff challenged by exception, as he also did the conclusion that the-removal of the fence by the defendants was justified. The order of May 26, 1746, was found among the old records of the town in the proper official custody, and was apparently authenticated by the clerk’s endorsement upon it. And there was no error in it& reception in evidence, assuming it was within the statutory powers-of the commissioners to make such an order. It seems to have been so. (Col. Laws 1732, chap. 575; id., 1739, chap. 686. And so far as they remained in force the colonial statutes were adopted and treated as effectual in this state until altered by the legislature. Const. 1777, art. 35. The order recited that it was made-“in pursuance of an act of general assembly.” It is deemed unnecessary to determine whether, in view of the early period at which the order was made and the subsequent use of the highway, it had the support of presumption that it was duly made, as the question of its reception in evidence was one of order of proof, and no motion founded upon a want of preliminary proceedings; was made to strike it out.

The proceedings taken by tne commissioners to ascertain and define the boundaries of the highway were not had in reference to-that order of 1746, as it seems or may be inferred that they were not then advised of its existence. But as appears by the recital in their order they treated the highway as such by user from 1828, and evidently proceeded in view of the statute which provides that all roads not recorded which have been used as public; highways for twenty years or more shall be deemed public highways , 1 B. S., 521, § 100, and that proceedings may be taken for removal of encroachments and obstructions. Id., § 103, as-amended by Laws 1878, chap. 245.

It is urged on the part of the plaintiff that those statutes were-not effectual to support the proceedings taken by the commissioners because prior to 1864 they had no application to the county of Suffolk, which with the counties of Kings and Queens was in that respect governed by statutes specially applicable to them, Laws 1789; chap. 14; Laws 1830, chap. 56; and that it did not appear that the place where the fence was located was-any part of a public highway when it was erected there in 1869, as the provisions of the latter act (1830; for entering of record highways created by user included those, only, which had been used as such for twenty years or more next preceding the twenty-first day of March, 1797, and which had been worked and used as such constantly for the last six years. If the fence was not then in a public highway the defendants were trespassers and as such liable to the plaintiff. And such result would necessarily follow if the use of the locus in quo as part of a public highway for twenty years next preceding March 21, 1797, was essential to the-defense, as there is no evidence to that effect.

But it may be observed that by Laws 1864, chap. 514, the-statutes before mentioned, specially and exclusively applicable to-those Long Island counties, were repealed, as were also laws on. the subject applicable only to the counties of Suffolk and Queens ; and by Laws 1865, chap. 6, the general statutes of the state were extended to those counties. The fence charged to be an encroachment and obstruction in the highway had not yet been erected. And as the road .had then been used as a public highway for twenty years, it came within and was subject to the provisions of the statute before mentioned, 1 B. S., 521, § 100 ; and was within the force of the statute which made it the duty of the commissioners to cause such of the highways “as shall have been used for twenty years but not recorded, to be ascertained, described and entered of record in the town clerk’s office.” 1 B„ S., 501, § 1.

The act of 1830 before referred to did not in effect provide that public highways would not be created by twenty years user as such, but merely limited, as there mentioned, the duty of the-commissioners to cause them to be entered of record.

The general act of 1813 went further, and provided that when roads had been used for twenty years or more next preceding the 21st day of March, 1797, they should be taken and deemed as public highways, although no record of them had been piade, and charged the commissioners with the duty of opening to the width of two rods or more all roads which had been so used at that time. 2 B. L., 277, § 24. And until further legislation on the subject the statutory highway by user was only that which had been used as such for twenty years prior to March 21, 1797. Galatian v. Gardner, 7 Johns., 106; People v. Lawson, 17 id., 277. This remained so until 1817, when it was provided “ that when any roads have been used as public highways for twenty years or more, the same shall be taken and deemed as public highways, although no record thereof has been made,” Laws 1817, chap. 43, § 3, and this was substantially taken into the Bevised Statutes and has since remained in force. This statutory declaration probably was for its support founded upon the common law doctrine of dedication to the public by presumption (thus made conclusive) arising from acquiescence on the part of the owner in the use of a road as a thoroughfare for twenty years, a period analogous to that of the limitation applicable to incorporeal rights as between persons. 3 Kent’s Com., 451; Gould v. Glass, 19 Barb., 179.

Since the amendment in 1878 of the Revised Statutes, relating to proceedings to remove encroachments has made them applicable to public highways which have become such by user, there is no objection to the making use of them in the present case, -unless, as claimed by him, some vested right existed in the plaintiff to defeat the application of those proceedings at the time they were taken. That contention cannot be supported if the place where the fence was located was a public highway at the time it was erected there in 1869. This statutory -remedy is merely an ■additional one, in the cases to which it was extended, for the protection of highways to the public use, and in which the adjacent ■owner had and could by his wrongful act take no vested right as ■against the public to defeat the remedy, although such particular remedy did not exist at the time he sought to interfere with the public use of some portion of the highway by encroachment and appropriation to his own use.

We have proceeded upon the assumption that the only statutes ^applicable to the highways in the county of Suffolk prior to 1864-5 were those only which related exclusively to those Long Island counties. But, although if that were so it would not in the view taken essentially affect any question in the present case, we think that such was not the situation. It is true as a rule that laws special and local are not deemed repealed by general ■statutes upon the subject without clear manifestation in some manner of such legislativé intent. People v. Quigg, 59 N.Y., 83. And it may be assumed that the provisions of the statutes relating specially to those counties were not superseded by any general legislation, but general statutes consistent with them for purposes for which no provision was made by -the local statutes upon the ■subject of highways may have been effectual there as well as •elsewhere in the state. The provision of the act of 1817 before mentioned, and which became part of the Revised Statutes, declaring the creation of public highways by user, was general and, was applicable to the entire state, subject' to special and local ■statutes with which such provision would not be in harmony. _ It provided for no proceeding, but simply declared that roads which have been or shall have been used as such for twenty years or more shall be deemed public highways. Our attention is called ■to no statute or statutory system relating exclusively to those ■counties upon the subject, by which any reason is furnished why that provision of the Revised Statutes was not applicable alike to them and other portions of the state prior to as well as since 1865. It is clear that prior to 1869 there was a public highway bounded north by the land of which the plaintiff afterwards became the owner, and that it has continued to be such highway.

The remaining questions are whether the fence was within it,, and whether the proceedings taken and had to remove the encroachment were legally effectual for the purpose. There was evidence tending to prove that the road as represented by the location of fences on either side and use for more than twenty years prior to 1869 was at least two rods wide ; and the highway as described by-tlie survey contained in the order of the commissioners of highways and represented by the accompanying map was of the width of two rods. There was also evidence tending to prove that the northern boundary of the highway was no farther south than that described by such survey. This evidence related to a period of upwards of forty years next preceding 1869, and was sufficient to present a question of fact and to warrant the conclusion of the referee that the fence was within the highway and the encroachment such as was described by the survey and represented by the order.

It follows that the facts were such as to permit the successful-application of proceedings for the removal of the encroachment. In conducting them it was essential to their validity that the statute be strictly pursued.

It is insisted by the plaintiff that there was a failure on the-part of the commissioners to do so. The order as well as the notice, to which it was annexed, for removal of the encroachment was addressed to the plaintiff. The statute provides that “ every such order and notice shall specify the breadth of the road originally intended, the extent of the obstruction or encroachment- 'and the place and places where the same shall be.” 1E. S., 521, § 103, as amended by Laws 1878, chap. 245. It is urged that the order served did not sufficiently or correctly describe the extent of the encroachment. At one point in the description of it there was an apparent clerical error in representing the encroachment in the order, but it is not seen how this could have had the: effect to mislead the plaintiff, and by reference to the order and the ipap therein referred to, it seems quite clearly that it could not

It is also urged that the notice was defective in that it did not specify the breadth of the road originally intended, the extent, and places of encroachments. The specification in the order of the breadth originally intended was somewhat informal, but. was sufficiently made there. The construction contended for is that it is not sufficient to have the specification in the order, but its repetition in the notice was essential. The cases cited upon that subject do not to that extent support the proposition. The order-containing the specification was annexed to the notice and referred to by it. Both were upon the same paper and practically constituted a single document. This, we think, was a compliance with the provision of the statute requiring the specification in the order and notice.

These views render it unnecessary to proceed to the consideration of the powers of the commissioners, incident to their general care and superintendence of the highways, to remove obstructions in them irrespective of any statutory proceeding, im their application to the present case.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.

       See 42 St. Rep., 513.


author: Andrews, J.

text:
    Anna B. Hall, Resp’t, v. Edward B. Germain et al., App’lts.

      (Court of Appeals,

      Filed March 25, 1892.)

    1. Civil damage act—Landlord.
    Knowledge of an agent at the time he leases premises for a saloon that intoxicating liquors are to be sold thereon and their subsequent use for that purpose is imputable to his principal.
    S. Same.
    The landlord is not liable,-however, where he lets his premises, not knowing that they are to be used for the sale of liquor, on the mere ground the premises were in fact so used by the tenant. He can only be made liable when it is shown that he knew when the lease was executed that the premises were to be used for the sale of liquor.
    3. Same.
    The landlord is not required to insert a covenant on the part of the tenant in the lease not to sell liquor on the premises in order to escape liability.
    -4. Same.
    If the liquor sold contributed in the slightest degree to the intoxication, . and the intoxication resulted in the injury, the case falls within the statute.
    (Earl, Oh. J., dissents.)
    ' Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff entered on verdict of jury.

      J., A. Stull, for app’lts; George P. Decker, for resp’t.

       Affirming 37 St. Rep., 320.

   Andrews, J.

We concur in the opinion of Judge Dwight at general term, that knowledge by the agent, Edward B. Germain, at the time he leased the premises for a saloon, that intoxicating liquors were to be sold therein, and their subsequent use for that purpose, is imputable to his principal.

The words of the statute “ and having knowledge that intoxi■cating liquors are to be sold therein,” were inserted to prevent an interpretation which would subject the landlord to liability when intoxicating liquors should in fact be sold on the leased premiases, although they were not let for that purpose, and the landlord did not know or understand at the time the lease was made that liquor was to be sold therein. The liability of a lessor under the act is to be determined by his knowledge at the time the lease was given. If he does not then know that the premises are to be used for the sale of liquor and does not intentionally shut his eyes, he is hot liable under the act, although the tenant does subsequently during the term use the premises for the sale of liquor. It would be most unreasonable to charge a .landlord with liability, who let his premises not knowing that they were to be used for the sale of liquor, on the mere ground that the premi■ses were in fact so used by the tenant. The landlord could not terminate the léase because liquor was sold therein, unless it was •so provided in the lease, or unless the sale by the tenant was unlawful, that is to say, without his being licensed to sell. If the sale by the tenant was unlawful, that ipso facto under the statute works a forfeiture of the lease, and if the landlord after knowledge that the forfeiture has been incurred, failed to enforce the forfeiture and enter upon the premises, a different question would be presented.

Nor is-the landlord required to insert a covenant on the part of the tenant in the lease not to sell liquor on the premises, in order to escape liability. He can only be made liable when it is shown 'that he knew when the lease was executed that the premises were to be used for the sale of liquor. It would not, we apprehend, be sufficient to establish his liability under the act that he let the premises for a store, except the jury should find that he knew, or had reason to know, that the sale of liquor would be a part of the business to be carried on. This being the construction of- the ■statute, it is apparent that the words “ having knowledge," etc., were not inserted to change in these cases the rule that the knowledge of the agent of any facts which are part of the res gestae of his agency is imputed to the principal. The civil obligations and liabilities of the principal in these as in other cases of agency are to be regulated upon this presumption.

Of course the landlord’s knowledge may, like any other fact, be established by direct or circumstantial evidence, but however •¡established, it must relate to the time of the lease. Where the lease is at will or sufferance, or the occupation of the premises is by mere permission of the owner, without any lease, it would be ■fille duty of the owner to interpose on the fact coming to his knowledge that liquor was being sold on the premises, if he would .protect himself thereafter from liability.

In the present case the agent let the premises knowing that they were to be used for the sale of liquor. They were occupied for years as a saloon, and rents were received, and as the evidence tends to show, accounted for to the principal, although the latter had no actual knowledge of the purpose for which the premises were rented or used. But under the general principle knowledge of the agent was knowledge of the principal.

The statute should have a just and fair construction. It would afford a wide opportunity for evasion, if a landlord could leave the management of his property to his agent, and take the benefit -of his leases for the business of liquor selling, and escape liability on the ground that he had no actual knowledge that the premises were let for such a purpose, although the agent at the time of the letting had such knowledge.

There was no error in the offer by the defendants’ counsel to» •show by the witness Guelf that when he leased the premises from Edward B. Germain in 1878, the witness agreed not to sell intoxicating liquors therein. The lease to Guelf was for one year, but he continued in occupation until 1882, when he sold his stock to McGovern, who thereafter occupied the premises until 1887, and he sold the liquor to the plaintiff’s husband which caused- the intoxication and the consequent injury upon which the action is founded. Guelf testifies that he had no lease when he sold to McGovern, and that in the sale to the latter-nothing was said about any lease. McGovern was at most a tenant from year to year, and the evidence leaves no doubt that he was permitted by Edward B. Germain to occupy the premises-as a saloon and for the sale of liquor as part of the business.

The court charged the jury that if the liquor sold by McGovern to the deceased contributed in the slightest degree to his intoxication, and such intoxication resulted in the injury complained of, the case was within the statute. The language of the statute is, “shall have caused the intoxication in whole or in part.” We-assent to the proposition that it must appear that liquor sold by a defendant charged under the act must have contributed in an appreciable degree to the intoxication. We-do not understand the charge as contravening this principle.

No exception raises any question as to the right to recover' against Edward B. Germain, the agent who leased the premises.If the point was before us, it would have to be considered whether an agent who lets premises or permits their occupation for liquor selling is within the purview of the act.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Earl, Oh. J., dissenting, and Finch, J.,. absent.


author: Maynard, J.

text:
    James C. Rogers, Resp’t, v. William G. Wiley et al., App’lts.

      (Court of Appeals,

      Filed March 25, 1892.)

    1. Stocks—Waiver of demand for margins—Consideration.
    The plaintiff had sold a stock "short,” and had agreed wjth his brokers-to keep with them a margin of twenty per cent. The slack rose and the brokers demanded more margin. The plaintiff had an interview with them, in which they advised him not to buy more stock, as he insisted upon doing, but to remain short, and said that if he would do so they would carry the stock for him until he could get out all right. They afterwards, bought in 1,000 shares at nearly the highest point reached, which purchase plaintiff immediately repudiated, and subsequently directed them to buy at a lower price, which they neglected to do. Held, that the defendants’' agreement to carry plaintiff was founded on a good consideration.
    2. Same—Measure of damages.
    The measure of damages in such a case is the difference between theamountf paid by the brokers upon the unauthorized purchase of the stock and what it might have been bought for when plaintiff subsequently gave-the direction to buy.
    Appeal from judgment of the supreme court, general term,, third department, affirming judgment for plaintiff entered upon, verdict of jury.

      J. Sanford Potter, for app’lts; James G. Rogers, for resp’t.
   Maynard, J.

Prior to July, 1882, the defendants, who were* stock brokers in New York city, were carrying for and on the account of the plaintiff, who is an attorney residing at Sandy Hill, 1,000 shares of Delaware & Lackawanna stock . of the par value of $50 each, upon a short sale which had been previously •effected at 120, some time before March 1, 1881.

The original contract between the parties was of the usual -character and required the plaintiff to keep on deposit with the defendants, either in money or acceptable securities, at least twenty per cent of the amount necessary to make good the short sale according to the existing state of the stock market fpm time to time, and to pay interest at the usual rates upon daily or periodical balances stated, and broker’s commissions. The defendants, on the other hand, were bound to carry the stock until plaintiff directed them to close the transaction, so long as he •complied with the terms of the contract on his part, and to give the plaintiff reasonable notice of the want of sufficient margin .and of their intention to buy in the stock and cover his short account if the margin was not made good in accordance with the terms of the notice. Markham v. Jaudon, 41 N. Y., 235; White v. Smith, 54 id., 522; Hess v. Rau, 95 id., 362; Gillett v. Whiting, 120 id., 402; 31 St. Rep., 495.

The plaintiff had ample margin to his credit when this account •was opened with the_ defendants in March, 1881, but the market value of the stock immediately began to appreciate and continued to advance with some fluctuations until July 22, 1882, when defendants wrote plaintiff that the price had reached 137 with an upward tendency, and stating that his margin with them would ■carry the stock to 149, and wishing to be instructed what the plaintiff desired them to do in case the stock should suddenly run up to that price, and whether the plaintiff intended to margin it ¿higher, or whether he wished the stock bought in.

The plaintiff replied by letter July 24th expressing an opinion, that the stock would not be likely to reach the point named, but stating that he would be in Saratoga the next day and would instruct them by wire if necessary. The plaintiff went to Saratoga the next day and there met the senior member of defendants’ firm. Plaintiff asked his advice as to what he had better do, and defendant said it was not their habit to advise customers, but plaintiff was up there in the country and the stock had gone against him, and the defendants would be glad to help him out. Plaintiff stated that he thought of closing his short account and going long of the stock. Defendant advised him not to do so, stating that he thought he could find out what course the market would take, and if he concluded the stock was going up he would telegraph the plaintiff and, in that case, plaintiff had better .buy in short and make a turn in the market. At that time the stock was selling at about 137. The plaintiff went home and, not hearing from defendant Wiley, returned to Saratoga on July 27th and had another interview with him, in which he said he had heard nothing •definite about the course of the market. Plaintiff replied that he was becoming greatly concerned and did not like to remain short •of the stock, and, from what lie could learn, and from the papers, •the stock was in a strong clique and might be cornered and go np very high; that the papers said it was going to 150, and he ¡had come down with the idea of covering his short stock and going with the tide. The defendant said that would be a good operation if the stock was going up, but he was not sure it was; if plaintiff acted on their judgment he would not do anything or buy any of the stock just yet; but defendant would keep watch of it, and would like to help plaintiff out, and if he learned it was going higher he would let plaintiff know at once and, at any rate, would telegraph him as soon as it touched 140. July 28th plaintiff received a letter from the firm in New York dated the 26th, stating that the stock was very strong and might run up to where plaintiff’s margin would be exhausted and that they were awaiting instructions from him. July 30th another letter -was received, dated the 29th, stating that the stock stood at 138-J-, but the market showed signs of weakness.

Nothing more was heard from defendants until August 9thy when a telegram was received saying that 143 was bid, and requesting to be advised what to do; that there was talk of the stock going to, 200 ; and wanting an answer quick. The plaintiff replied by telegram the same day, directing defendants to buy 2,000 shares at market price and stop loss with margin either way. The same day plaintiff received another telegram from defendants, stating that they did not wish to carry 1,000 shares on six points margin, as they might not be able to stop it, and that if the stock went up they would buy in plaintiff’s shares when the margin urns-exhausted. The defendant Wiley- was still at Saratoga and telegraphed plaintiff the same evening that he would like to see him before ten o’clock the next day. Plaintiff went over and defendant told him he wished to explain why they did pot fill his order. Plaintiff said that if defendants were not going to obey .his orders and wanted to slaughter him, he wished to know it then ; that he did not think he had been treated fairly; that he had been over there twice and proposed to cover his sale and go long of the stock-and had been advised by defendant not to do so, and defendant had promised to let him know when it touched 140, and the first information he got w'as when 143 was bid; that if he had done as he had first proposed he would have made $6,000 and if his orders were not to be obeyed he wanted to close-the thing right up and transfer the account. Defendant replied that he was afraid plaintiff would feel so and for that reason had telegraphed him to come over, but that he had acted in good faith and believed it would come out all right; that he had information that plaintiff could rely on, that the stock would not go any higher ; that it would go off ten points before it would go up two, and plaintiff could depend upon it. Plaintiff said defendant talked that way before and he did not know what to depend on; that he had come over that morning to close the matter up ;■ that if they wanted more margin he could give it to them. Defendant said he did not want to carry the stock at the price and be long of it for anybody. Plaintiff replied that as it was, he-was liable to be closed out within a day or two, or when the stock-reached 149 or 150, and he did not want to leave it in that shape;: he wanted to end it and save what few thousand dollars he had left.

Defendant then said that he did not think he was mistaken in regard to the matter; that he had information which the plaintiff would have confidence in, if he was at liberty to divulge it; and that if the stock should go up to 149 or 150 the defendants would 0 not close plaintiff out, but would carry the stock for him until he could get out all right; that they had rather do it than buy it and be long of it at this price. Plaintiff replied that with that understanding he was willing to leave the matter as it was, and defendant said that was right; they would work it out for him, and he would yet make money. August 14th, plaintiff received -a telegram from defendants that the stock closed at 146J, and the next day a telegram that defendants had bought in 500 shares at 148§ and 500 shares at 149. The plaintiff then wrote defendants a letter expressing surprise at the purchase and repudiating it, if made on his account, and refusing to accept of it and calling upon defendants to cancel the purchase and if they did so he would immediately send them $2,000 and more soon if necessary.

The defendants claim they never received any such letter. The stock did not go above 150 but almost immediately began to decline, closing on the day of the purchase at 147f, and nine days afterwards it had dropped nine points, and on February 9, 1883, it was quoted as low as 120. February 8th plaintiff wrote defendants directing them to purchase on his account 1,000 shares of the stock to cover the stock theretofore borrowed by them for him ; to sell the securities belonging to him and to render an account of the purchase and sales, which defendants declined to do upon the ground that they had already bought in the stock for his ac■eount on August 15th at 148f and 149. If plaintiff’s direction of February 8th' had been followed and no stock had been bought in for him on August 15th, there would have been a saving of •over $16,000 by the transaction.

The right of the plaintiff to recover depends upon the construction to be placed upon the conversation between plaintiff and defendant Wiley, at Saratoga, on August 10, 1882, taken in connection with the previous conversations and communications which led up to it. If the defendants then agreed through their representative to carry the ¡plaintiff's short interest in the stock, even after his margin was exhausted, and until there should be a favorable turn in the market which would permit him to cover the transaction without loss, the judgment appealed from cannot be disturbed. For the purposes of this review, the testimony of the plaintiff •must be accepted as true. His account of the conference with the defendant was sharply contradicted by Wiley, and many circumstances are pointed out by the counsel for the appellants which it is insisted invest his evidence with an air of improbability. But the verdict of the jury has foreclosed all discussion "in this court upon that point, and we cannot doubt that if his statements are true the minds of the parties met upon' that occasion and there were present all the elements of a valid agreement. In fact, it is not assailed as such, except for an alleged want of consideration. A sufficient consideration, however, for the promise of the defendants to carry the stock without additional margin was shown when it was made to appear that the plaintiff forebore his determination -to immediately cover the stock and close his account without the risk of further loss. It is not necessary to seek for the advantages which the defendants might derive from the retention of plaintiff as a customer and a continuance of his account. It is-enough if the plaintiff was induced to act to his pecuniary prejudice upon the faith of the assurance given him by the defendants that they would carry his stock without exacting any additional security until the condition of the market was such that he could buy without loss.

The plaintiff could have closed his account at any time. Ora August 10th he had a surplus to his credit of between $3,000* and $4,000. He proposed to buy in then rather than take the risk of losing this sum, and was persuaded to keep the account open upon the faith of the defendants’ agreement. Plaintiff also proposed to go long of the market, which might have afforded-him some protection if he sold at the right time, but refrained from making the investment for the same reason. It might also-be inferred that he omitted for the same cause to put up additional margin. Emery v. Wilson, 79 N. Y., 78, is authority for the proposition that where one party is in a business venture-with another from which he may retire at his will, his continuance therein is a sufficient consideration to uphold a promise to-allow him an advantage which was not embraced within the terms of the original contract between the parties.- In such a case it may be inferred that the promisee continued in the business, upon-the strength of the promise.

Clarke v. Meigs, 10 Bosw., 337, was like the present case in all its essential features. The plaintiff had failed to keep his margin good and the defendants had agreed not to sell his stock unless it fell to a certain point, but did so; and it was held that the plaintiff was entitled to recover. ' The defendants’ counsel requested the court to charge the jury that the agreement was-void for want of consideration, which was refused, and the court; charged that if the defendants agreed to hold the stock without a. further deposit, the plaintiff was entitled to a verdict. The general term, Bosworth, Ch. J., delivering the opinion, held that the-request to charge that the agreement was without consideration and void was properly overruled. The court also held that the transaction operated both as a waiver and as an equitable estoppel.

It is true that in the case at bar the trial justice held and charged the jury that there was no consideration for this agreement “ moving to the defendants; ” but he did not charge-that there was no consideration at all for the agreement. He-did so state in giving the reasons for the denial of defendants’ motion for a nonsuit, and it may fairly be inferred that he intended the jury should understand that in his judgment, as matter of law, the testimony did not disclose a valid consideration. ’But the defendants were not harmed by such an instruction, and cannot now complain of it. The court did submit to the jury in a charge which was eminently fair the question whether the transaction between the plaintiff and the defendant Wiley occurred at Saratoga substantially as set forth in the evidence of the plaintiff, and the jury, by their verdict, have determined this issue in favor of the plaintiff. It is immaterial how the transaction may be characterized in law; whether as an agreement having a sufficient consideration to support it, or .as a waiver of the notice previously given to plaintiff to furnish more margin, or as an estoppel. If it took place as plaintiff represented it, his right to recover was established, and the judgment cannot for that reason be reversed.

We see no error in the measure of damages adopted by the trial court; which was the difference between the amount paid by the defendants upon the unauthorized purchase of the stock August 15, 1882, and what it might have been bought for February 10, 1883, when plaintiff gave the direction to buy. It was the rule sanctioned by this court in Campbell v. Wright, 118 N. Y., 594; 30 St. Rep., 32.

The judgment should be affirmed, with costs.

All concur, except GrRAY, J., dissenting.

       Affirming 38 St. Rep., 231.


author: Gray, J.

text:
    Samuel H. Randall, Resp’t, v. Jacob H. Sherman et al., App’lts.

      (Court of Appeals,

      Filed March 25, 1892.)

    Reference—Attorneys.
    In an action for services rendered as attorney and counsel between certain dates in defending an action, the answer denied the services to be of the value alleged. Held, not a proper case for a compulsory reference.
    Appeal from order of the New York superior court, general term, affirming order of reference.

      John Brooks Leavitt, for app’lts; Samuel 11. Randall, resp’t in person.

       Reversing 43 St. Rep., 960.

   Gray, J.

We think that the court did not have the power to •order a compulsory reference of the trial of the issue in this •action. Such a reference can only be ordered when the -trial will require the examination of a long account and will not involve the decision of difficult questions of law. Code Civ. Pro., S 1013.

The complaint in this action alleged an indebtedness of the defendants to the plaintiff in a certain sum, upon an account for services rendered to them as attorney and counsel, between certain dates, in defending a certain action and that the services were of the reasonable value stated. The answer put in issue the indebtedness and alleged the reasonable value of the plaintiff’s services to be less than averred. When the plaintiff made his op-' plication for the order of reference, upon the pleadings, those conditions did not appear, nor did they exist, which the Code prescribes as essential to the granting of the order.

No account was involved in the issue as the subject of investigation; and the only sense in which it can be pretended that an account could come under consideration at all would be that, in. deference to some request of the defendants, the plaintiff had, before bringing his action, rendered an account, or bill, itemizing, his services. The question presented in such ah action is that of quantum meruit. The services were rendered as the defendants’ attorney and counsel in and about the one action and although they are capable of more or less itemization, that fact does not bring the action into that class which becomes referable as requiring the examination of a long account.

The plaintiff by making out his bill so as to specify the numerous acts and services required in the various stages of the litigation does not make that the “ long account ” which the statute-speaks of. The bill itself does not include anything but services rendered upon the one retainer. His cause of action was single, as his contract was entire. The service he was retained to render was essentially single; although it required distinct steps and proceedings on his part, before the purpose of his employment was fully accomplished. Bathgate v. Haskin, 59 N. Y., 533. The demand in his complaint was for a sum which represented an aggregate charge for several, and more or less' different, acts and services. These are, of course, the subjects of valuation; but. their proof, in any mode adopted upon the trial, would not convert the subject of plaintiff’s action into one involving the “ long-account” of the statute

The orders of the general and special terms should be reversed and the motion for a reference denied, with costs.

All concur, except Finch, J., absent.


author: O’Brien, J.

text:
    The Norfolk & New Brunswick Hosiery Co., App’lt, v. Anna M. Arnold, Resp’t.

      (Court of Appeals,

      Filed March 25, 1892.)

    Appeal—Waives.
    Plaintiff brought an action for fraud and breach of warranty in the sale of sewing machines,, and attached defendant’s property. On defendant’s-, motion the attachment was vacated at special term. Three days after defendant demurred to the complaint as improperly uniting causes of action, and plaintiff served an amended complaint dropping the breach of warranty claim. In the meantime plaintiff had appealed to the general term, from the order vacating the attachment, and on defendant’s motion plaintiff's appeal was dismissed. Held, error; that plaintiff by serving the amended complaint did not" waive its right to prosecute the appeal.
    (Gray, J., dissents.)
    Appeal from order of the supreme court, general term, first department, granting a motion dismissing an appeal from an order vacating an attachment.

      Walter D. Edmonds, for app’lt; George E. BlaclcweTl, forresp't.

       Reversing41 St. Rep., 953.

   O’Brien, J.

The complaint in this case contained two causes-of action; one for fraud in the sale of one hundred sewing-machines for which the plaintiff paid the defendant $16,000, and the other for damages in the sum of $16,000 for breach, of warranty in the sale of the same machines. Upon this complaint, an affidavit and undertaking the plaintiff procured an attachment against, the property of the defendant. It is stated in the warrant that it was granted upon both causes of action stated in the complaint. Afterwards the defendant moved to vacate the attachment upon. the papers on which it was granted and on the 25th of September, 1891, at special term, after hearing the parties, the court granted the motion and made an order vacating the attachment. Three; days afterwards, on the 28th of September, 1891, the defendant-served a demurrer to the complaint in which it was stated, among' other grounds, that causes of action were improperly united. On the 17th of October, 1891, the plaintiff, apparently recognizing; the question raised by the demurrer, served an amended complaint The amendment consisted in dropping out entirely the cause of action for damages by reason of a breach of warranty. The cause of action based .upon fraud in the sale of the machines-as stated in the original complaint was retained. But in the meantime, two days before the service of the amended complaint, and' on the lath of October, 1891, the plaintiff duly appealed to the-general term from the order of the special term vacating the attachment. It is not alleged that there was any delay or failure on the part of the plaintiff to perfect and prosecute this appeal. The defendant a few days after the service of the amended complaint, upon an affidavit showing the various proceedings had in the cause as above stated, moved at the general term to dismiss the plaintiff’s appeal from the order vacating the attachment and that court granted the motion and dismissed the appeal.

There is nothing in the record to show upon what ground or for. what reason the general term dismissed the appeal, but it is to be inferred from the argument here that it was dismissed upon the ground that the plaintiff, by serving an amended complaint, in which one of the original causes of action was abandoned,, waived the right to an attachment and to further prosecute the appeal from the order vacating it. At all events, that seems to be the ground upon which the defendant now seeks to uphold in this court the order of the general term dismissing the appeal. It cannot be denied that the appeal of the plaintiff from the order of the special term vacating the attachment was in all respects regular. The plaintiff had the right when the appeal was made to have the question decided by the order reviewed in the general term. That question was whether upon the papers which were before the special term that court committed any error in vacating the attachment. Subsequent to the appeal the plaintiff did nothing to waive it, unless it can be said that the service of the amended complaint in response to the defendant’s demurrer had that effect The order appealed from certainly did not grant any favor to the plaintiff, and it has not acquiesced in or derived any bénefit or advantage therefrom. In serving the amended complaint the plaintiff did not waive its right to prosecute the appeal. That act was but a regular and proper step in the course of procedure and in strict compliance with the rules of practice. It may be said that the plaintiff has withdrawn from the record a part of the case upon which the attachment was issued, but the only way .that the defendant can take advantage of that is by a new motion .to vacate on the amended complaint in case the plaintiff’s appeal from the present order is sustained. Then the question will .arise whether the plaintiff by amending the complaint has impaired its right to the attachment. The effect of such an amendment cannot be determined on a motion to dismiss an appeal regularly taken from an order previously made, and which must stand or fall upon the case as it then appeared. We are unable to discover any ground for holding that the plaintiff 'waived the right to prosecute the appeal or that could warrant the court in -dismissing it. The plaintiff was entitled to have it heard and decided upon the merits.

The order appealed from should, therefore, be reversed and motion to dismiss denied, with costs in this court and ten dollars ••costs of motion.

All concur, except Finch, J., absent, and Gray, J., dissenting.


text:
    In the Matter of the Petition of Julia Blewitt for the Appointment of a Committee of the Person and Property of James Blewitt.

      (Court of Appeals,

      Filed March 25, 1892.)

    1. Lunacy—Jurisdiction—Notice to lunatic.
    Where a lunatic has lucid intervals a failure to give notice to him of the presentation of a petition for the appointment of a committee will render the proceeding and the adjudication thereon invalid. •
    3. Same.
    On the proceedings in this case there was a full opportunity afforded the alleged lunatic to present and litigate the question of his sanity, and it was litigated and decided adversely to him without his raising any question of jurisdiction, and on subsequent proceedings asking alternative relief, viz.: that the proceedings should be vacated or that the petitioner be permitted to traverse the inquisition, he was allowed to traverse both the inquisition and the original petition, and all proceedings were allowed to stand, Held. that under the circumstances this court would affirm the order denying the motion to set aside the proceedings.
    Appeal from an order of the general term of the supreme court affirming an order made at special term, which denied the .motion of James Blewitt, an alleged lunatic, to vacate and set .aside a commission and proceedings in lunacy,' and the appointment of a Committee, on the ground that the alleged lunatic had no notice of the proceedings and that they were otherwise irregular. The notice of motion was made in the alternative, demanding that the proceedings should be vacated for the want of notice ■and other irregularities or that an issue be awarded to try the fact of lunacy, etc.
    The court at special term, while denying the relief to vacate, made an order permitting the alleged lunatic to traverse the allegations of the (original) petition in the lunacy proceedings, and directed the trial of the issue before the commissioners appointed therein and by a jury. The lunacy proceedings were commenced its June, 1890, upon the petition of the wife of the alleged lunatic., supported by the affidavit of a physician. The petitioner alleged, in her petition that her husband on the 21st day of April, 1890, was seized with a hemorrhage of the brain, resulting in a partial paralysis of the body, and that since said date he “ has shown continuous symptoms of insanity- and has been at times and frequently since the said 21st day of April, 1890, violent and dangerous to* himself and those about him.”
    It further alleged that the family consisted of the petitioner and her husband and two sons, all of whom-resided in the city of New York, and that her husband owned a house and lot in that-city and was possessed of about $5,000 personal property. The affidavit of the physician attached to the petition confirmed the-statement of the petition as to the condition of Mr. Blewitt, and alleged that “ he shows pronounced symptoms of mental derangement, being excessively emotional, irascible, incoherent and irrational,” and he further stated that he considered. him incompetent to manage his business or personal affairs. The court, upon the presentation of the petition, granted an order that a commission issue to three persons named “ to inquire into the matters .set forth in the petition,” and also as to the value of the real and personal property of the alleged lunatic.
    A commission was subsequently issued to the persons designated in the order, directing them to inquire by the oath of good and lawful men whether “James Blewitt, etc., is an insane and incompetent person, with or without lucid intervals, by reason of which infirmity he is incapable of governing himself or of managing his affairs,” etc. They were further directed to cause a jury to be summoned and to give reasonable notice of the time and place of the execution of the commission to “James Blewitt, Julia Blewitt, his wife, Charles A. Blewitt and George A. Blewitt,. his sons.” The inquisition was taken on the 23d day of June,. 1890, and. it found that Mr. Blewitt was “ an insane person with lucid intervals, but was incompetent and incapable of managing his business or personal affairs, or of properly taking care of his affairs, lands, tenements, goods and chattelsand it also found in respect to his property, and who were his heirs and next of kin. The inquisition does not appear to have been formally confirmed, but on the 25th day of June, 1890, an order was made, entitled in the proceeding, appointing his wife,'Julia Blewitt, committee of the person and property of the alleged lunatic, “ during his insanity or incompetency, or until another committee shall have been appointed, upon her giving a bond,” etc.
    The order purported to have been made upon affidavits of Julia Blewitt and Ed. Hamilton Cahill annexed, “ and on all the proceedings heretofore taken in the above entitled matter, certified copies of which are hereto annexed.” There was no proof in the papers upon which the order was made appointing the committee of any notice having been given to the alleged lunatic at any stage of the proceedings, and it is set forth in the affidavit of Mr. Blewitt, on which the present proceeding is taken, that no notice-was served on him. at any time, and that the first intimation.he had that any such proceedings had been taken was in November, 1890. Mrs. Blewitt, in her opposing affidavit in the present proceeding, states that she received, from her attorneys who conducted the original proceedings a written notice dated June 21, 1890, directed to her husband, herself, and their two sons, notifying them that the commission would be executed on the 23d day of June, 1890, at four o’clock of the afternoon of that day. Her .affidavit then proceeds as follows: “On Sunday, June 22d, went into her husband’s room and informed him that she had applied to the court to have a committee appointed so that his property would be'secure and the business continued, and that the hearing would take place on the next day at the court house at four o’clock. Deponent further says that the said James Blewitt was •confined to his bed at this time, and in a very weak condition botli mentally and physically, and deponent has considerable doubt whether the said James Blewitt has sufficient mental capacity to understand the purport of said communication.”
    It appears in the papers on the appeal that prior to the motion now under review, and in January, 1891, the alleged lunatic made a motion before Mr. Justice Ingraham to supersede the commission in question and proceedings, on the ground that he had recovered from the attack of April, 1890, and “ is now (at the •date of the motion) of sound mind and understanding.”
    Numerous affidavits were presented on that motion in behalf •of the alleged lunatic of physicians and other persons, tending to show that when the original proceedings were taken, in June, 1890, he was of sound mind, and was so at the date of the motion. In opposition affidavits of physicians and of Mrs. Blewitt were presented, tending to show that he was insane when the proceedings were instituted, and so continued. Judge Ingraham denied the motion.
    The present motion was made in February, 1891, after the denial of the former motion.

      Isaac N. Miller, for app’lt; Lorenzo Semple, for resp’t.

       Affirming 41 St. Rep., 429.

   Andrews, J.

The jurisdiction which formerly was vested in the chancellor over the person and estate of lunatics, is now exercised by the supreme court. But the supreme court exercises the power under the same rules as appertained to and regulated the jurisdiction of the chancello!’, subject to such statutory provisions on the subject as are contained in the Code of Procedure. Code, § 2320 et seq. The power of the court to appoint a committee of the ¡Derson and estate of a lunatic is very essential, but it should "be exercised with scrupulous regard to the rights of the alleged lunatic, and under the protection which attend other judicial proceedings affecting person or property, modified only so far as the peculiar nature of the inquiry and the condition of the alleged lunatic may render modification necessary. The fact of lunacy must be ascertained judicially before the court can deprive the lunatic of the custody of his estate, or submit his person to the control of a committee. The proceeding for the appointment of a committee is no exception to the rule that the person proceeded against must have notice of the proceedings to give validity to an adjudication against him. Where the lunacy is •of such a character as to wholly deprive him of his understanding, and this is made to appear to the court on the initiation of the proceedings, it was the practice in chancery for the •chancellor to direct notice of the proceedings to be served on •some relative or other person in order that opportunity might be afforded to protect the interests of the alleged lunatic.

The Code now prescribes that in all cases the court must require notice to be given of the presentation of the petition in lunacy proceedings to the husband or wife, or to one or more relatives, or to an officer specified, unless • sufficient reasons are ■set forth in the petition or accompanying affidavits for dispensing with such notice. Code, § 2325. This section does not touch ■the question of the right of the alleged lunatic to have notice also.

It was said by the chancellor in the Matter of Tracy, 1 Paige, 580, that if there “ were any peculiar circumstances in the case which rendered it improper or unsafe to give notice to the party, as in some cases of furious madness, the facts should be stated in the application to the court so that a provision might be inserted in the commission dispensing with the necessity of notice.”

In our opinion a very clear case should be made before the court should proceed in lunacy proceedings, in the absence of .actual personal and written notice to the party, and that unless such a case is made by the petition or affidavits, and an order made by the court dispensing with personal notice and providing for notice to relatives or’others in lieu of personal notice, an adjudication in the absence of such notice should be set aside. The cases must be very rare in which a notice may not be served on the alleged lunatic, and it seems to us the better practice would be to require service of notice upon the party (if within the jurisdiction) in all cases, in' addition to notice to relatives and others, as required by § 2325 of the Code. Attempts by interested persons to get control of the person and property of another by the aid of lunacy proceedings, or proceedings cri the ground of habitual drunkenness, are not infrequent, and no precaution should be omitted which may apprise the party of the proposed action and enable him to appear and defend. The authorities and text writers assume that the party proceeded against should have notice of the time and place of executing the commission. In re Tracy, supra; In re Petit, 2 Paige, 174; Chase v. Hathaway, 14 Mass., 222; 2 Barb. Ch. Pr.. 231.

In the present case there was no ground presented in the petition why the alleged lunatic could not be served with notice, and as his insanity was with lucid intervals there is no reason for supposing that notice would have been useless. We are of opinion that the proceeding and adjudication were invalid for want of notice to the party. The statement of Mrs. Blewitt that .she informed her husband, on the day before the inquisition was taken, that she liad applied to the court to have a committee appointed, and that hearing was appointed for an hour on the next day, was not notice within the requirement. It would be dangerous to bind a party by a notice so informal.

There is no reason to suppose that these proceedings were instirtuted by the petitioner in bad faith, but justice and the possible-grave injuries which may flow from irregular proceedings in these-cases .admonish courts to guard them with great strictness, and to* require an observance of all practicable safe-guards against fraud and injustice. YYe have concluded that the order appealed from may be affirmed without weakening the principle which we have-announced, on these grounds: first, that on the proceedings instituted before Judge Ingraham by the alleged lunatic, there was a. full opportunity afforded him' to present and litigate the question, of his sanity, and it was litigated and -decided adversely to him-without his raising any question of jurisdiction : second, that the appellant in his present motion asked alternative relief, viz : that the proceedings should be vacated, or that the petitioner be permitted to traverse the inquisition, which latter relief, or relief more-favorable bas been awarded him; third, that the order below allows the appellant to traverse not the inquisition, but the original, petition, thereby putting him in the same position as upon an. original hearing thereon; and fourth, that it was discretionary with the court, pending the traverse, to let the inquisition and proceedings stand until the termination of the inquiry. In re Tracy, supra.

The other objections taken to the procedure which resulted in. the appointment of a committee are not we think available as a, ground of reversal.

• The orders of the special and general terms should, therefore, be affirmed.

Order affirmed, without costs.

All concur, except Finch:, J:, absent.


text:
    Leman C. Miner, Jr., Resp’t, v. Bernhard Baron et al., App’lts.

      (Court of Appeals,

      Filed March 25, 1892.)

    1. Evidence—Contract.
    On the trial of an action upon a contract relating to patent rights, plaintiff claimed that it had been modified, while defendant alleged that it had been utterly abandoned and cancelled. On cross-examination of plaintiff a letter from him to defendants was introduced in which he referred to the fact that “ the contract * * * was cancelled by mutual consent."’ Upon his re-direct examination he stated that he wrote the letter because-he saw an article in the newspaper giving the public to understand that the defendants owned the patent. The plaintiff was then allowed over defendants’ objection to put said newspaper in evidence. Held, no error; that it was justifiable in explanation of plaintiff’s letter and of the cause of. writing it.
    2. Pleading—Amendment.
    The exercise of discretion by the trial judge in refusing to-allow defendant to amend his answer on the trial after plaintiff had closed his case will not be reviewed by this court.

      Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff ■entered on verdict

      Leopold Wallach, for app’lts; George W. Roderick, for resp’t.

       Affirming 39 St. Rep., 893.

   Gray, J.

The complaint set forth a contract between the parties by which the plaintiff, as the owner of certain letters patent, issued to him as the owner and patentee of an invention for a segar perforator, agreed, for a consideration moving from the defendants, at the expiration of three months, either to .transfer his interest in the patent for the sum of $3,250, or, at the option of flle defendants, to give them the sole and exclusive right to manufacture and sell the patented article upon terms which required them to guarantee the manufacture within three years of at least 13,000 of the perforators, and to pay plaintiff a royalty of twenty-five cents for each. It alleged that the defendants elected under the contract to take the exclusive right for the three years, provided for as the alternative to a purchase of the patentee’s interest. It then alleged that subsequently to the making of that ■election, by mutual consent, the contract was modified or altered in such wise as that the defendants were to manufacture and to pay the royalties upon 4,000 of the perforators during one year, and that the plaintiff in consideration of this modification should have the right to manufacture and sell the article to other persons. The plaintiff demanded judgment for a sum which would represent the difference between what would be due for royalties upon the 4,000 perforators, if manufactured as agreed under the modification of the contract, and the amount paid upon 200 perforators actually manufactured, with interest upon the amount so due. The answer admitted the allegations as to the contract and as to the election by the defendants under its provisions, but set up as a separate défense that it had been subsequently agreed between the parties that the contract and the election made thereunder should be utterly abandoned and canceled.

The issue thus presented was, what did the parties in the end agree to ? The plaintiff recovered a verdict for the amount of his demand.

Upon the trial the plaintiff gave evidence that at an interview, in January, 1888, between himself and one of the defendants, they agreed to the modification or alteration of the contract as he had alleged in the .complaint. Upon his cross-examination by defendants’ counsel a letter from him to the defendants was introduced, written subsequently to the interview, in which he demanded an explanation of a cut, or ' illustration, and an accompanying article just appearing in a newspaper called Tobacco,” ■and which gave the public to understand that the defendants owned and controlled the patent. The plaintiff accused the defendants in this letter of practicing a sharp and cunning ” piece of business, in view of the fact that a short time previously “ the ■contract * * * was cancelled by mutual consent.” Upon his redirect examination the plaintiff was asked to state how he -came to write the letter, and ho said that it was because just after the agreement made between him and the defendants he had seen, the article in the paper called “ Tobacco.”

The paper was then offered by the plaintiff in evidence and ans objection to its reception was overruled and an exception taken. The defendants insist that the ruling was erroneous; because as it, appeared that the article had not been inserted nor authorized by the defendants it was both irrelevant to the issue and, as evidence in the case, tended to prejudice the defendants in the minds of the-jurors. The exception, however, is untenable. The introduction in evidence ,of the paper was justifiable in explanation of the-plaintiff’s letter and of the cause for writing it. The defendants,, obviously, had called out the letter, in order to show, by expressions of the plaintiff, a cancellation of the contract, and thus-to establish their defense. It was competent, therefore, for the-plaintiff to put in evidence the newspaper article, as the subject of his letter, to explain and qualify what he had written, and to rebut any inference which the defendants might argue as deducible-therefrom.- The paper was not admissible.as evidence in support of the plaintiff’s allegations respecting the agreement arrived at,, nor as proof in support of his case; but he was entitled to have the newspaper article, referred to in his letter, considered in connection with and as an explanation of the letter itself. Nor could its reception in evidence be considered, in any light, as prejudicial to the defendants. The only issue in the case was whether at the-interview in January the contract 'had been modified, as the plaintiff alleged and testified; or whether it had been wholly-abandoned, as the defendants alleged and testified.

The -recovery of the plaintiff depended upon the credence which-the jury should attach to the evidence; and its amount was not a variable sum, to be fixed according to the caprice or whims of the-, jurors, but was a certain sum. With respect to the liability of the defendants, the trial judge' charged the jury that it must be for the sum demanded and that they might give interest upon it..

After the plaintiff had rested upon his evidence, and the defendants’ part of the case was being made out, a motion was made on-their behalf to strike out the admission in their answer that they had elected, under the terms of- the contract, to take the right for three years to manufacture and sell 13,000 perforators. This-was to obviate the effect of defendants’ evidence contradicting it, and was urged to have been a mistake of the pleader. But the-motion was denied. The denial was not placed on the ground of any want of power. ■ This is apparent from the remark of the judge, that be did not think it was fair to allow the change to be made at that stage of the case. It was an exercise of discre-. tian on his part, and, therefore, will not be reviewed in this court

No other error is presented calling for our consideration, ancL the judgment should be affirmed, with costs.

All concur, except Finch, J., absent.