author: Herrick, J.

text:
    Eugene Gardner, App’lt, v. Edward Christian et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Villages—Incorporation—Cannot be attacked collaterally.
    The validity of proceedings incorporating a village cannot be attacked collaterally, as in an action for conversion in enforcing the collection of a tax imposed by the village authorities. The remedy provided by the act, viz. : by appeal to the county judge, is exclusive.
    Appeal from judgment of the county court of Columbia county, reversing a judgment of a justice of the peace in favor of plaintiff.
    Action for conversion. The facts appear in the opinion of the county court, as follows:
    Cady, J.—This is an appeal by the defendants from a judgment rendered against them, and in favor of the plaintiff, by Jacob A. Hallenbeclc, Esq., a justice of the peace of the town of Green-port, Columbia county, on the 10th day of February, 1893, for twelve dollars and eighty-nine cents damages and costs.
    The action involves the question whether an attempt made during the year 1892 by some of the residents of certain territory in the town of Claverack, in Columbia county, to incorporate a village to be called Pliilmont, resulted in its legal incorporation or failed of reaching that result.
    That question is an important one for reasons that are so apparent that they need not be enumerated here. A formal incorporation of the village has been had. Village officers have been elected ; an assessment of real and personal property within the municipal boundaries for municipal purposes has been laid, and out of an effort made by the authorities to enforce the collection of village tax based upon such assessment this action has arisen.
    The name of the plaintiff appeared upon the assessment roll. He was assessed for real estate valued at $2,800, upon which the amount of tax levied was $5.04. This tax he declined or neglected to pay. Thereupon the defendant, Edward Christian, claiming to be the collector of the village, and acting under a warrant signed by the defendant Baker, as president, and countersigned by the defendant Vedder, as clerk of the village, respectively, did, on the 23d day of November, 1892, levy upon and carry away from the premises of the plaintiff, without the latter’s assent and authority and against his will, two barrels of flour belonging to the plaintiff, of the alleged value of eleven dollars. The actual value of the flour is immaterial. It has some value, and that is enough for the purposes of the case.
    Christian made the levy for the purpose of satisfying the tax against the plaintiff, who thereupon brought this action upon the ground that the taking of the flour was an unlawful conversion of his property, and he had judgment below sustaining his contention.
    That judgment I must reverse, and the reason for doing so seems very clear to me. The plaintiff claims, in effect, that the defendants were not protected in their conduct by the sanctity of any official character, for they were not officers of the village of Philmont because there was no village of Philmont, and the reason he assigns for there having been no incorporation is that the notice of the election to determine whether there shall be an incorporation, provided for by § 7 of title 1 of chapter 291 of the Laws of 1870, as amended, was not signed by “ twenty of the electors resident -within the bounds of said proposed village who shall be liable to be assessed for the ordinary and extraordinary expenditures of said village.”
    Evidence was produced by the plaintiff upon the trial and received that tended to show that several of the electors who signed the notice of election which was posted and published on May 80, 1892, were not liable to be so assessed, and I shall regard that fact as having been established by the proof.
    No other instance of disobedience to the requirements of the statute in incorporating the village is urged by the plaintiff, and it was, indeed, expressly admitted upon the trial, by a series of admissions appearing upon the return, that in all other respects the procedure of the incorporation was legal.
    The plaintiff’s counsel insist that the signing of the notice by at least twenty assessable electors of the territory in question was essential to confer jurisdiction upon the resident electors of that territory to hold any election at all for the purpose of deciding whether there should be an incorporation. I am rather inclined to the view of the defendants’ counsel, that the cardinal jurisdictional basis for the incorporation of villages is the existence of the minimum resident population provided for by § 1 of title 1 of chapter 291 of the Laws of 1870, as it stood amended in 1892, and that the subsequent provisions of the statute are provisions of machinery and procedure.
    That minimum of population must exist or there can be no village. ISTo proceedings, no matter how scrupulously conducted, could create a village out of a less number of inhabitants. It is not contended here that the requisite number of inhabitants did not exist upon the territory now embraced in the village of Philmont when the proceedings for incorporation were instituted. Therefore, a village could be .incorporated if the proceedings for its creation were regularly conducted.
    All the steps in the process actually taken are admitted to have been formally correct save the call for the election. That call was a part of the election process. If not signed by at least twenty assessable inhabitants it was an irregular and objectionable call, and an election based upon it was an objectionable and irregular election. A certificate showing thé result of the election that was actually held was made by the proper authorities and properly filed in the county clerk’s office.
    blow, assuming that the election thus called, held and certified was irregular and objectionable, because the call for it was objectionable and irregular, an ample and summary method of correction existed. Section 11 of title 1 of the act of 1870, as amended by § 2 of chapter 59 of the Laws of 1878, provided that: “Within ten days after such filing,” (of the certificate of the election in the county clerk’s office) “ any elector qualified to vote at such election may appéal to the county judge of the county in which such territory shall be located ***** specifying the irregularities in and objections to such election.” The county judge must thereupon, within a specified time, decide as to “the legality or illegality of such election and “ if the county judge shall decide such election to have been illegal, he shall forthwith, on rendering his decision, make an order and file the same in the county clerk’s office ***** directing another election to be held to determine the question of the incorporation of such territory.” Section 13 of the act of 1870, as amended by § 4, chapter 59, Laws of 1878. The call for this second election so ordered need not be signed by at least twenty assessable residents of the territory, but “ shall be held on notice of such election signed by some one or more of the persons designated as inspectors of election for the previous election as to incorporation, etc.” El
    The fact that the second election, which shall be final for two years if against incorporation, and from which no appeal can be taken in any event, may be thus held upon a call signed by one inspector of election, seems to me to indicate that the legislature regarded the call for the election as only an auxiliary part of the machinery.
    I have no doubt that the fact that the requisite number of assessable resident electors had failed to sign the notice of the election would constitute such an irregularity in the election and such an objection to it as would require the county judge, upon the appeal to him provided for by the act, to order a new election.
    I am equally clear, however, in my conviction that such an irregularity and such an objection can only be presented and heard upon such an appeal, and cannot be used as the basis for an action like the one before me.
    The whole statute taken together indicates an intention on the part of the legislature to establish a method for promptly and readily disposing of all questions relating to the regularity of the election, before an easily accessible tribunal vested with exclusive jurisdiction for that purpose. I do not think that those questions can be litigated in any other way nor in any other court. Plain public policy suggests that they shall be decided upon and finally disposed of before a formal incorporation shall take place. Otherwise they might be raised long after the de facto incorporation had been made, long after it had apparently been acquiesced in, and after important vested interests had been created upon the strength of a public belief in the regularity of the election of the village.
    The requirement of the statute that the appeal shall be taken to the county judge within ten days after the filing of the certificate of the election is not unreasonable. Knowledge of the election proceedings is then fresh in the minds of all concerned, and the whole subject then possesses such a vital interest as would lead to energetic prosecution and defense and tend to enforce a careful and patient review.
    These views of the legislative intent are made convincing to me by the provisions of § 2, title 8, chapter 291 of the Laws of 1870, which are as follows:
    “The certificate of the inspectors of election presiding at the first and second election at which the question of incorporating the village was decided affirmatively, or a copy of the same, certified by the county clerk of the county in whose office it shall be filed and recorded, with his seal of office, shall be final and conclusive proof of the incorporation of such village and the regularity thereof in all courts and places, and in all actions and proceedings, except in case of an appeal from the election as hereinbefore provided.”
    From the controlling effect of this enactment no way of escape has been pointed out to me that appears to be legally feasible. There can be no question that the legislature possessed ample power both to make the appeal to the county judge an exclusive remedy for the correction of irregularities in the election, and to make the certificate of the first or second election “.final and conclusive proof of the incorporation of such village and the regularity thereof in all courts and places, and in all actions and proceedings, except in case of an appeal from the election as hereinbefore provided.” An appeal to the county judge was pever taken to review the election for the incorporation of Philmont.
    The certificate of election was duly made and filed in the county clerk’s office, and a properly authenticated copy of that certificate was received in evidence by the justice on the trial in. the court below and appears in the return. That constituted final and conclusive proof of the incorporation of Philmont and of the regularity thereof. The justice should have been controlled by it in rendering his judgment. He disregarded the mandate of the legislature in failing to accord to the evidence its statutory effect, and in order to reach the conclusion embodied in his judgment he must have necessarily decided that Philmont is not a duly incorporated village. This was error, and the judgment appealed from was plainly against the weight of the evidence.
    Plaintiff admitted that all proceedings for th,e assessment, levy and collection of the tax against the plaintiff, including the sale of the property, were had in accordance with the forms and requirements of the statutes for incorporated villages, and only claimed that the same were void by reason of the irregularity and invalidity of the notice of election claimed by him to exist, and not otherwise. A similar admission was made as to the appointment and qualification of the defendant Christian, who made the seizure of the goods. I have regarded the fact that several of the electors who signed the notice of election were not liable to assessment as having been established in order to give to the plaintiff the utmost benefit of his proof upon that subject. It is contended by the defendants that such was not the fact, and that these electors were liable to assessment within the purview of the act.
    It is not necessary for me to decide the question -thus arising in view of the grounds upon which I have disposed of the case, and I have not undertaken to do so.
    Judgment reversed, with costs.

      Cadman & Peck (John P. Cadman, of counsel), for app’lt; A. Frank B. Chace, for resp’ts.
   Herrick, J.

I do not think the validity of the proceedings incorporating a village can be attacked in the manner attempted in this action. The statute providing for the incorporation of villages, chapter 291 of the Laws of 1870, provides a summary way of determining the regularity and validity of such proceedings, the remedy thus provided I think is exclusive; additional force is given to the ordinary rule in such cases by § 2 of title 8 of the said law, which provides that certificates of the inspectors of election, or a certified copy of the same, with the seal of office of the county clerk, shall be final and conclusive proof of the incorporation of such village and the regularity thereof in all courts and places, and in all actions and proceedings, except in case of an appeal from the election as provided for in such statute.

I see no occasion for an opinion, inasmuch as the learned county judge has made a very careful review of the case and the conclusion at which he arrives seems to me to be correct.

The judgment of the county court should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Application of Elizabeth Nolan, Adm’rx, for leave to take and perpetuate the testimony of Joseph Payette.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Depositions—Examination of proposed party before commencement of action.
    Plaintiffs intestate was killed while at work in an iron mine operated under the direction of Joseph Payette, who was its superintendent, and it is claimed that the death occurred by reason of his negligence, and, on information and belief, that two others named were interested in said mine. The affidavits in opposition to a motion for examination of said Payette tend to show that plaintiffs attorneys have commenced an action for another employe injured at the same time against a corporation, and that an answer was interposed therein denying that said corporation operated said mine, and alleging that it was operated by one of the persons named in plaintiffs affidavits. Held, that an examination of said superintendent so far as to elicit information as to who were operating said mine at the time of the accident, and would therefore be proper parties defendant, was properly granted.
    Appeal from order vacating an order directing Joseph Payette to appear before a referee and be examined and make a deposition as an expected party in an action about to be brought.

      Foote & Stokes ( Wallace T. Foote, of counsel), for app’lt; Weeds, Smith & Conway (Thomas F. Conway, of counsel), for resp’t.
   Herrick, J.

Elizabeth Nolan is the widow and administratrix of William Nolan, who was killed while employed and at work in and about an iron mine, known as the Nelson Bush Mine. Elizabeth Nolan made an application to a justice of this court for the examination before the commencement of an action of Joseph Payette, alleging that her husband, William Nolan, was employed by the said Payette, and while at work in the mine, controlled and operated under the direction of the said Payette, Payette negligently, carelessly and unskillfully conducted the business of mining in said mine, where Nolan was employed. That the mine became, by reason of Payette’s negligence and carelessness, unsafe and dangerous for the workmen employed therein; particularly to the deponent’s intestate, but of which danger said intestate had no notice or knowledge, and that by reason of the negligence and carelessness of Payette in conducting the business of mining, said William Nolan was, without any fault or want of care on his part, x killed, by reason of which the deponent has sustained pecuniary loss and damages to the amount of $5,000.

She further alleges in her affidavit upon information and belief that one James Vance and one John M. (Hidden were interested in common with said Payette as owners, lessees, or otherwise in the said mine, or in the product thereof. That the sources of deponent’s information and grounds of her belief are common repute in and around the neighborhood of the said mine, and from conversations had with the iritesfate, prior to his death, and with others who then worked and are now working in said mine, and ' in' other mines in the neighborhood wherein mining operations were directed by the said Payette.

That she has no other sources of information, except the testimony of Payette, as to the interest of Payette, Glidden and Vance in or to said mine, or as to whether they were in partnership in the operation of said mine. That Vance and Glidden reside in West Virginia. That she has employed attorneys of this court to bring action against said Payette and other parties interested in the said mine, if any there be, to recover the damages sustained by her by the death of her husband.

That the testimony and examination of Payette is necessary and material for her for the prosecution of such proposed action, as she is advised by her counsel, and to enable her to frame her complaint in such action, and afford her an opportunity to discover the facts in relation to the ownership of said nfine, and the control and operation thereof, at the time of the death of the intestate, so that she may make the necessary allegations pertinent to the ownership of the mine or to the possession and operation thereof, and to prove the facts material and necessary to be proved upon the trial.

That the discovery sought is necessary to ascertain the extent of the interests of the said Payette, Glidden and Vance in the said mine, or as to what those interests are, or as to whether said mine is operated by them as partners, or as to whether the said mine is operated by Payette as sole owner or lessee; or as to whether or not Payette, Glidden and Vance are partners in the ownership of the mine, or in the products thereof, or whether there are other interested parties in said mine.

That such facts are within the personal knowledge of said Payette, and not within the knowledge of the deponent.

Upon such affidavit an order was granted for the examination of Joseph Payette. In the order such examination was limited to the determination of what interests the said Joseph Payette had in the mine at the time stated, and what interest Glidden and Vance had in said mine, if any, and whether the said mine was operated by them and Payette as partners, or whether there are other parties interested in said mine.

That after the granting of such order the said Payette, upon his own affidavit, and that of his counsel, applied to a special term of this court for an order to vacate the order providing for the examination of Payette.

That in his affidavit Payette stated and alleged that there were other persons killed and injured in the same accident by which ISTolan lost his life; that the same attorneys who represent the applicant in this case had been retained by the representatives of all the parties killed or injured in said accident, to prosecute their alleged claims.

That an action has been commenced by such attorneys in behalf of one of such parties against the Arnold Ore Co.; that an answer has been interposed in such action, among other things alleging that such mine was not operated by the Arnold Ore Company at the time of the accident, but was operated by one John M. Glidden. That in that action an order was made requiring Payette to appear and be examined as to the affairs of the said Arnold Ore Company, which order was thereafter vacated and set aside.

He further alleges that he has no ihterest in the mine, or its products, and n'o ownership or title therein at the time of the ac-i-cident; that his only interest is simply that of a superintendent of Ithe mining operations therein conducted. He further alleges that he “ has no personal knowledge as to what interest either John M. Glidden or James Vance, or either of them, has in said mine, or had at the time stated.”

That at no time prior to the service of the affidavit and order upon him, in this proceeding, had he been in any way informed by Elizabeth Nolan, or anybody representing her, that she had claimed or pretended to have any cause of action against him by reason of said accident. That she had never made any demand upon him for a settlement of the same, or in any way claimed that he was in anywise liable for said accident. He also alleges in his affidavit that he believes the order was procured in bad faith and for the purpose of annoying him, and accomplishing in another way what was sought by the order that was vacated in the other action.

The special term upon such application vacated the order for the examination of Payette, ana from that order the applicant, Elizabeth Nolan, appeals to this court.

That a person intending to bring an action may examine the proposed adverse parties before a trial has been decided in Bank v. Sheehan, 101 N. Y., 176.

The appellant in this case states in her affidavit the cause of action, and that she has employed attorneys to prosecute it; that she desires this examination for the purpose, among other things, of preparing the complaint in such proposed action. That a person is entitled to an examination to discover the facts claimed by him to be necessary to enable him to frame his complaint has been decided in Glenney v. Stedwell, 64 N. Y., 120; Fatman v. Fatman, 45 St. Rep., 859; Raymond v. Brooks, 59 How., 383; Hutchinson v. Lawrence, 29 Hun, 450.

This examination is not sought for the purpose of ascertaining whether the applicant has a cause of action, but to ascertain who the cause of action is against.

It sufficiently appears, I think, from the affidavits, that there is' some doubt as to who are the owners • or operators of the mine where the accident happened.

It appears from the respondent’s affidavit that another action, founded upon the same accident, has been commenced by another party, appearing by the same attorneys who represent the appellant in these proceedings, and that an answer has been interposed, denying that the defendant in that action operated the mine at the time of the accident, and alleging that it was operated by one John M. Glidden, one of the very persons that the appellant alleges, in her affidavits, she is informed and believes was interested in operating the mine in connection with another, or others, so that it appears from the respondent’s own affidavit that a question has arisen as to who operated the mine at the time of the accident, and was responsible for any negligence in such operation.

That it is necessary, to.enable the appellant to frame her complaint, to ascertain who are the proper defendants, who were the owners or operators of the mine ■ at the time of the accident,, I do not think can be questioned. The allegation as to who were the owners or operators of the mine is a most necessary and important part of the complaint, and it seems to me that appellant is entitled to an examination to discover such necessary facts. Sweeney v. Sturgis, 24 Hun, 162.

The respondent, Payette, is a very proper person to examine for that purpose; he is the one who employed the intestate ; he was, according to his own affidavit, the superintendent of the mine at the time of the accident, and presumably he knows who his employers were, and who were engaged in operating the mine; he would be a proper person as defendant in the proposed action, and, therefore, a proper person to examine as a party.

His sworn denial of his ability to furnish the information sought is not sufficient to defeat the application, even where that denial is broad enough to cover any or all knowledge upon the subject. Davis v. Stanford, 37 Hun, 531-3; Olney v. Hatcliff, id., 286.

But in this case the respondent does not say that he has no personal knowledge as to whether (Hidden or Yance had any interest in the mine at the time stated; his denial is in this language : “ The deponent has no personal knowledge as to what interest either John M. (Hidden or James Yance, etc.,” which is not inconsistent with his having personal knowledge that they had some interest in operating the mine, or were co-partners therein.

The order for the examination was so limited in its scope that it could not be used for fishing purposes; it was confined to the eliciting of information as to who were operating said mine at the time of the accident, and would, therefore, be proper parties defendant.

It seems to me, therefore, that the order for the examination was properly granted, and that the order of the special term vacating the same should be reversed, with costs of motion, together with ten dollars costs of this appeal, and printing and other disbursements.

Mayham, P. J., and Putnam, J., concur.


author: Per Curiam.—The

text:
    David J. Johnston, Resp’t, v. John Garside, Mayor, et al., App’lts. Charles F. North et al., Resp’ts, v. John Garside, Mayor, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Discontinuance—Costs—Equitable action.
    The special term has power, in an equitable action, and especially where a change in the law has rendered the litigation unnecessary and fruitless, to allow a discontinuance without costs.

      Appeals from orders allowing a discontinuance, without costs. The actions were brought against the defendants as the major" and fire commissioners of the city of Cohoes, to prevent waste and prevent the defendants from meeting and appointing another commissioner, and then, claiming to be the fire board, unlawfully seizing and taking the fire department and its property from the possession of the plaintiffs in the second action, who were also fire commissioners, wasting, plundering and destroying the same. After service of the preliminary injunction upon the defendants, defendant Gfarside went out of office, and by chap. 671, Laws 1892, the new charter of the city, the whole board of fire commissioners were legislated out of office, and a new board has been appointed.

      J. F. Crawford and P. D. Niver, for app’lts; C. H. Sturges and J. L. Henning (Charles F. Doyle, of counsel), for resp’ts.
   Per Curiam.—The

action was an equitable one, and upon that ground, as well as the change in the law, by which the parties were legislated out of office before the trial of the action, the court at special term could allow a discontinuance without costs.

The application was addressed to the discretion of the court below, and we are of the opinion that no such an abuse of discretion, or misapprehension of the facts, or of the rights of the parties, appear in the case as would justify a reversal of the order. Crosby v. Fitzpatrick, 23 W. Dig., 35; Morss v. Hasbrouck, 13 id., 393; Byron v. Durrie, 6 Abb. N. C., 135; Smith v. Banker, 3 How., 142.

The order should be affirmed, with costs and disbursements.

Mayham, P. J., Putham and Herrick, JJ., concur.


text:
    Abram Freligh, Resp’t, v. The Directors of the Village of Saugerties, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.

    1. Villages—Negligence—Notice.
    The word “ powers ” in chap. 808, Laws 1884, giving to officers of a village incorporated under a special charter the same powers as are prescribed in any general act for the incorporation of villages, includes not only the ability to act, but the same capacity to be acted upon.
    3. Same.
    Plaintiff’s horse, harness and cart were injured by collision with a pole set outside the curb line in one of defendant’s streets. The accident occurred in May, 1891. Held, that an action therefor could not be brought until a notice as required by chap. 440, Laws 1889, had been served.
    8 Same
    The notice served stated that the claim was for injuries to the claimant’s person and property, and loss of wagon, by reason of coming in contact with a pole which stands in P. street. Held, that such notice was defective in not stating when the accident occurred and the particular place.
    4. Same—Premature action.
    The purpose of the notice is to give the village authorities an opportunity to investigate the claim and a chance to pay it if just, and so avoid the expense of litigation; and hence commencing an action the same day, although after the notice has been presented, is not a compliance with the statute.

      Appeal from judgment in favor of plaintiff, entered on verdict.

      Charles Davis (Peter Cantine, of counsel), for app’lt; Carroll Whitalcer, for resp’t.
   Herrick, J.

The defendant in the above entitled action appeals from a judgment rendered against it in the Ulster county court, upon a verdict of a jury, for the sum of $311.26 damages and costs.

The action was brought to recover damages for the alleged negligence of the defendant in placing, causing or permitting to be ¡haced, a large pole in one of the defendant’s streets, outside of the curb line, against which pole the plaintiff’s cart, .carriage or wagon collided, and his horse, harness and cart were thereby inj ured.

The accident happened May 10, 1891. On May 14th the plaintiff through his attorney mailed a notice, directed “ to the board of directors of the village of Saugerties, U. Y.”

The notice was that the plaintiff had placed in the hands of the writer a claim against the village for the loss of a wagon, and for injuries to his person and property, by reason of coming in contact with a pole which stands in ¡Post street. Such notice or letter contained no statement of the time when the accident happened, nor the particular portion of Post street where it happened.

It appears that the board of directors of Saugerties has regular meetings once a month; that it had its regular monthly meeting on the 4th day of May; the next meeting thereafter was a special meeting, held May 21st. At that meeting this notice or letter was presented, and on the same day a summons dated May 20, 1891, was served upon the defendant’s president.

Objection was made in behalf of the defendant to the plaintiff’s notice or letter being received in evidence upon the grounds that it had not been pleaded in the complaint, that the time of the accident was not stated, and that it was not such a demand as the law required; the objection was overruled, and it was received in evidence.

The court held that, as a notice, it was insufficient; it held that the act of 1884, hereafter referred to, did not apply to the defendant; that defendant being incorporated under a special act or charter which did not require any notice or claim for personal injuries to be given to it, that, therefore, no notice was to be given before commencing an action; but allowed the plaintiff to amend his complaint so as to plead that he had given notice under the law of 1889, so that plaintiff could raise the question as to whether the notice was sufficient. Chapter 308 of the Laws of 1884 reads as follows : “ The trustees and officers of any village of this state, created by special charter, shall have and possess the same powers as are prescribed in any general act for the incorporation of villages within this state, except as such special charter may be in conflict with any provision or provisions of said general acts.”

This law was evidently intended, as far as possible, to make the general laws of the state in relation to villages applicable* to all villages of the state, except where there is something in the special charter granted to a village in conflict with such general law. It was intended to have one harmonious system of law in relation to the villages of the gtate.

In 1889, by chapter 440, the general law in relation to villages was amended as follows: “ Ho action shall be maintained against the village for damages for personal injuries, or for injuries to property, alleged to have been sustained by reason of the negligence of the village, or of any officer, agent or ■employe thereof, unless the same shall be commenced within two years after the cause of action therefor shall have accrued, nor unless the claim shall have been presented, and a notice of the time and place at which such injuries were received shall have been filed with the village clerk, or duly presented to the board of trustees, within one year after such cause of action shall have accrued.”

That became, and was at the time of the happening of the accident in question, a part of the general village law of the state. When we come to apply chapter 308 of the Laws of 1884 we apply it to the general act for the incorporation of villages as it is at the time of the happening of the event which •calls for a construction of the law; the law in relation to villages, at the time of the happening of this accident, was chapter 291 of the Laws of 1870, as amended by chapter 440 of the Laws of 1889, with which we are to couple chapter 308 of the Laws of 1884 and read them as one law, all of them having relation to the same subject, and intended for the same purpose, and in all its provisions I think applied to the defendant.

But it is said that chapter 308 is a grant of power to trustees .and officers of villages incorporated by special charter, and that the provisions of chapter 440 of the Laws of 1889 do not come within the meaning of the word “powers;” that they do not confer any authority or ability upon villages or village officers, but are restrictions or limitations upon the acts of third persons against villages and village officers ; the contention is, that all that was meant by the use of the word powers was ability to act, capacity to do something positive. I think that is too narrow a meaning, that the legislature intended something broader.

“The word “power” is sometimes tised in the same sense as ■“right.” Bapalje & Lawrence Law Dictionary.

Sometimes the liability to be sued is spoken of as a corporate power, in defining the powers of corporations. Am. & Eng. Encyclopedia of Law, vol. 4, pages 188-89.

“ The capacity to be acted upon in some particular manner,” is also one of the definitions of “ power.” Worcester’s Dictionary.

It seems to me, therefore, that in chapter 308 of the Laws of 1884, when the legislature said that the officers of any village incorporated by a special charter shall have and possess the same powers as are prescribed in any general act for the incorporation of villages, it meant that such officers should thereby not only have the same ability to act, but the same capacity to be acted upon, and the same rights as are granted to villages or the officers of villages incorporated under the general laws of the state; and as under the general laws of the state an action for an injury could not be brought against a village until a notice had been served, that the plaintiff in this action could not commence his case without serving the statutory notice. The presentation of such notice is a condition precedent to the bringing of an action. Reining v. City of Buffalo, 102 N. Y. 308; 2: St. Rep., 10; Curry v. City of Buffalo, 135 N. Y. 366; 48 St. Rep., 482.

In this case the notice is defective in that it did not specify the time of the accident, and I also think it was defective in that it was not more particular in specifying the place where the accident happened.

The notice was directed to the board of directors; of course it could not reach them until they met; they met on the evening of the 21st of May, and that same day the suit was commenced. Even if the notice had been regular in form, I do not think that, that would have been a compliance with the statute; its purpose is to give the village authorities an opportunity to investigate the claim, and a chance to pay it if just, and so avoid the expense of litigation.

To receive the benefit intended by the statute they must have-a reasonable opportunity to examine the claim after it has been presented; commencing an action the same day, although after, the notice has been presented, is not a compliance with the spirit and intention of the law.

The plaintiff having failed to comply with the law requiring him to give notice of his claim, he is not entitled to maintain his action, and judgment should be reversed, with costs.

Mayham, P. J., and Putnam, J., concur.


author: Putnam, J.

text:
    Eugene H. Ladd et al., App’lts, v. The Ætna Insurance Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Insurance (fire)—Effect of contract to sell insured property.
    Subsequent to procuring a policy of insurance upon their saw mill, plaintiffs executed a contract of sale of the mill to It. & T., and notified defendant’s agent thereof, who indorsed on the policy a statement that the title was in K. & T., and that the loss, if any, was payable to plaintiffs, as their interest may appear. Held, that plaintiffs remained the legal owners of the property with an insurable interest therein, and their policy did not. become invalid in consequence of said contract.
    2. Same — Suspension of operation of manufacturing establishment.
    The suspension of work in a mill or other manufacturing establishment that will avoid a policy must be-either permanent or something more than a suspension of work from some temporary cause. A < essation of work in a saw mill for one month, caused by the illness of the sawyer, is not such a suspension as to avoid the policy.
    Appeal from a judgment in favor of defendant, entered upon a verdict directed bv the court at the close of the evidence on the trial at the circuit, and from an order denying plaintiffs’ motion for a new trial.
    The action was brought by plaintiffs to recover $2,500 on a policy issued by defendant upon a water power saw mill and machinery therein.
    On February 26, 1891, the defendant through Samuel B. Skinner, its agent at Malone, who, it is admitted, had full power from defendant to enter into contracts relating to insurance, in consideration of $125 paid, issued to plaintiffs its policy of insurance for $2,500, as follows: “ $1,000 on their frame water power saw mill and additions connected, occupied as a water power saw mill, and $1,500 on machinery fixed and movable therein.” Plaintiffs were then the owners in fee of the premises. On June 29, 1891, plaintiffs sold the property to King & Trushaw under contract of purchase and conveyance, and they immediately entered into possession thereof and continued in possession and occupancy until the time of the fire, which occurred on January 9, 1892.
    By the terms of the contract of purchase King & Trushaw were to pay $2,200 for the property, $500 down and the balance in five equal annual payments. For the first payment they gave Ladd & Smallman Mr. Gibson’s note for $300, which was received on the contract, and two notes of another party, one for $100 and one for $75, which were to be applied when paid. These two notes had not been paid at the time of the trial, leaving due plaintiffs $1,900 and interest from June 29,1891.
    Immediately after selling the property to King & Trushaw, Mr. Smallman took the policy and went to Mr..Skinner, the agent, and told him just what trade he had made and for what price he had sold the property, and asked him to make the necessary indorsement on the policy providing that the loss, if any, be payable to them as their interest might appear, and Mr. Skinner agreed to do so. He made an indorsement on the policy, stating that the title was in King & Trushaw, but provided that the loss if any be payable to Ladd & Smallman as their interest might appear, and returned the policy by mail to Ladd & Smallman.
    After King & Trushaw purchased the property they made extensive repairs upon the mill and run it, working together in it until their stock was pretty well cut out late in the fall. King lived near the mill and Trushaw lived some ten miles away towards Malone. Trushaw went home to attend some other work, and King with an assistant continued to run the mill until about December 11th, when he was taken sick, and because of this sickness was unable to run it. King had a Mr. Fullerton assisting him, and expecting an early recovery Fullerton worked at other work. When King was taken sick there were logs and lumber at the mill, belts all on, mill in first class repair, and he and Fullerton were going to begin to get out a bill of building lumber the next morning for a Malone party, but he was taken sick that night and was unable to go to work the next morning. Hot recovering, he sent for Trushaw and explained to him his condition and the of out the lumber he was about to get out when taken sick, and Trushaw and men were going to begin to saw the following Monday. During King’s sickness and before the fire he engaged logs and logs were being drawn to the mill and lumber away, and everything was going on as usual, except that no sawing was done in the mill for a few days. And Trushaw about three days before the fire run the mill about half a day sawing and planing lumber and was to begin the following Monday to run it to saw the lumber King had undertaken to get out. It was a custom mill. Before suit King _ & Trushaw assigned their interest in the loss to Ladd & Smallman. Proofs of loss were furnished in due time, and no question was-raised by defendant as to proofs of loss or agency of Skinner. The court, at the close of the evidence, on motion of defendant, held the mill was a manufacturing establishment and ceased to be operated for a period of ten days, and hence the policy was void and directed a verdict for defendant.

      Kellas & Munsill (John P. Kellas, of counsel), for app'lts; A. H. Sawyer, for resp’t.
   Putnam, J.

It is not claimed that the policy of insurance on which this action was brought, when issued, was invalid. Plaintiffs were the owners of the property insured, and received the policy from the duly authorized agent of defendant.

But it is urged that the policy became void in consequence of the contract executed, after the issuing thereof, to King & Trushaw, which transferred to the latter the equitable title to the mill, and by the alleged erroneous indorsement on said policy that the title was vested in them.

Notwithstanding the contract plaintiffs remained the legal owners of the property, and could insure it, probably for the whole value, but certainly to the extent of their interest in it. Ins. Co. v. Updegraff, 21 Pa. St., 513; Tollman v. Atlantic Fire & Marine Ins. Co., 4 Abb. Ct. App. Dec., 345; Wood v. The Northwestern Ins. Co., 46 N. Y. 421.

Plaintiffs remaining the legal owners of the property and with an insurable interest therein, their valid policy did not become invalid, in consequence of the contract, if they correctly represented to defendant’s agent the facts as to such transfer. There was evidence on the trial from which the jury could have found that defendant’s agent was notified that the sale to King & Trushaw was by contract, and hence, a nonsuit having been granted, we must now assume that the agent was truly informed as to the said contract. Under such circumstances we understand it is well settled that the mistake of the agent in making the indorsement will not avoid the policy. Mowry v. Agricultural Ins., 64 Hun, 144; 45 St. Rep., 70; Van Schoick v. Niagara Fire Ins. Co., 68 N. Y., 434; Berry v. American Central Ins. Co., 132 id., 49; 43 St. Rep., 400.

We do not regard the cases cited by respondent, Quinlan v. P. W. Ins. Co., 133 N. Y., 356-364; 45 St. Rep., 200; Allen v. G. A. Ins. Co., 123 N.Y., 6; 33 St. Rep., 216, parallel to the cases under consideration. These are not cases where a valid policy was issued to the insured, and by a mistake of the agent of the insurers the proper indorsement of a transfer was not placed upon the policy of insurance, the agent being duly and properly notified of such transfer.

The indorsement made was as follows:

“ End’t made on policy No. 9932, fiStna Ins. Co., June 30» 1891.
“ It is hereby understood that the title of this property is now vested in P. King and N. Trushaw, and loss, if any, is payable to Ladd & Smallman as interest may appear,
“ S. B. Skinner, Agent.”

It has been decided that the company by the words “ as interest may appear ” insured the plaintiffs for any insurable interest which they might have in the insured -property, and waived the condition requiring a specific statement of such interest in the policy. De Wolf v. Capital City Ins. Co., 16 Hun, 116; Burk et al. v. Niagara Fire Ins. Co., 34 St. Rep., 702, 703.

We have assumed that in making the indorsement above set out the agent incorrectly stated that the title to said insured property was in King & Trushaw. The latter, however, under the contract, were the equitable owners of the property, and there are authorities holding that such vendees who have taken possession under a contract have the title, and may insure as the owners. Pelton v. Westchester Fire Ins. Co., 13 Hun, 23; 77 N. Y., 605.

We, therefore, conclude that the policy was not avoided in consequence of the contract to King & Trushaw.

The court below granted the nonsuit on the ground that the insured property ,being a" manufacturing establishment, ceased to be operated as such, for at least ten days, at some time prior to the fire, and hence under the conditions in the policy it became void. The conditions referred to provide that if the subject insured be a manufacturing establishment, and ceases to be operated for more than ten consecutive days, or if the building therein described, whether intended for occupancy by the owner or a tenant, be and become vacant dr unoccupied, and so remain for ten days, that the policy shall be void.

We think the position of appellants correct that ordinarily the term “occupy ” as applied to such a saw-mill must be deemed synonymous with “operate.” It is held “that to constitute occupancy of a building used for manufacturing purposes there must be some practical use or employment of the property. ” Halpin v. Phenix Ins. Co., 118 N. Y. 174; 28 St. Rep., 788.

A condition of the kind above set out is to be construed in view of the circumstances and character of the property insured and in view of the contingency as to its use within the reasonable contemplation of the parties. Caraher v. Royal Ins. Co., 63 Hun, 93; 44 St. Rep., 141.

The property insured was a saw-mill run by water power. It was destroyed by fire on January 9, 1892. The mill was kept running up to December 9th, when King, the'sawyer, was taken ill, and work was suspended until three days before the fire, when the witness Trushaw sawed two logs. He testified he was intending to go to the mill the following Monday to saw the logs there. When King became ill, he had arranged to saw out a bill of lumber the next day. There was quite a quantity of logs at the mill to be sawed, and arrangements had been made to have others drawn, and logs were drawn there during King’s illness, and up to the time of the fire, and lumber taken away. He stopped work on account of the illness.

If an insurance policy on a saw-mill run by water power is vitiated by a temporary suspension of the operation of the mill •in consequence of the illness of the sawyer, absence of logs, low .water, or any circumstances which must necessarily cause such suspension from time to time, such a policy would have but little value.

In Whitney v. Black River Ins. Co., 72 N. Y., 117; 9 Hun, 37, a case of insurance upon a saw-mill, at the time of the fire no sawing had been done for sixteen or eighteen days, but there were logs in the yard which the plaintiff intended to saw; lumber piled in the yard and in the mill from which sales were made from time to time before the fire. It will be seen that the facts were similar to those in this case.

In that case it is said; “ Delays and interruptions incident to the business of conducting a saw mill, although involving a temporary discontinuance of the active use of the mill for sawing purposes, would not, we think, make the mill “ vacant ” and “ unoccupied ” within the meaning of the policy. Take the case of the insurance of a church building, or school-house, or cider-mill. Would the fact that the church was closed for six days consecutively each week be a violation of the condition in question, or would the school-house in vacation time, or the cider-mill when no apples were to be had, be without the protection of the policy ? These illustrations serve to show that the condition against vacancy and non-occupation is to be construed and applied in view of the subject matter of the contract, and of the ordinary incidents attending the use of the insured property.”

In Poss v. Western Assurance Co., 40 Am., 68, it was held that a clause similar to the one in question in an insurance policy is not avoided by a temporary cessation of work caused by an epidemic. In Albion Lead Works v. Williamsburg City Fire Ins. Co., 2 Fed. Rep., 480, it is determined that such a clause is not violated by a temporary suspension of work at the mill.

We think the above cited cases place the proper construction on such a provision in a policy. The suspension of work that would avoid a policy in such a case must be either permanent or something more than a suspension of work from some temporary cause. The distinction between this case and such oases as Halgin v. Phenix Ins. Co., 118 N. Y., 165; 28 St. Rep., 788, is apparent. In the latter case the insured property had been occupied as a morocco factory, but the tenant had left and the building was locked up and in the hands of the agent to rent, and it remained in that position for months. It had ceased to be operated at all until another tenant could be found. The suspension of work in the case cited was very different from the temporary suspension in the case under consideration, which was only continued during the illness of the sawyer.

We conclude that the policy of insurance in question was not rendered void by the brief suspension of the operations of the mill in consequence of King’s illness, and that the court erred in taking the case from the jury, and in granting the motion for a nonsuit, and hence, without considering the other questions raised in the case, the judgment should be reversed, a new trial granted, costs to abide the event.

Mayhah, P. J., and Herrick, J., concur.


text:
    Abraham Veeder, App’lt, v. Abram Relyea, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Easement—Prescription—Evidence.
    In an action of trespass, where the defendant claims a right of way by prescription and adverse user, evidence in disproof of any knowledge of plaintiff of any claim of right is competent and material, and the exclusion thereof error.
    3. Same—Mutual grants.
    In such an action the only proof of any grant, mutual or otherwise, was the fact that each party used a portion of the other’s land as a way; that defendant forbid the use of his land in that manner, and that plaintiff then forbid defendant to use his land. The court charged that “There being no direct evidence of an agreement under which the user commenced, there is nothing to rebut the presumption of a mutual grant.” Held, error; that whether there was such a grant was a question for the jury to be determined on all the evidence, and the notices given by each of the parties was evidence to be taken into consideration as to how the parties themselves understood the matter.
    Appeal from judgment in favor of defendant, entered upon the verdict of a jury.

      Robert J. Landon, for app’lt; J. H. Clute, for resp’t.
   Herrick, J.

This is an appeal by the plaintiff from a judgment entered upon the verdict of the jury in favor of the defendant.

The action was brought by the plaintiff against the defendant for an alleged trespass committed by the defendant upon plaintiff’s land and private road, breaking the lock and entering through the gate of the plaintiff, and in and upon the land and private road of the plaintiff and damaging it.

Hpon the trial the plaintiff limited his claim for damages to the trespass committed upon the road, and no other place.

The defendant in his answer denied the trespass and alleged that the private road mentioned by the plaintiff in his complaint was a private road belonging to, and "in possession of the defendant as a right of way from a public highway, and alleged that he had been in possession and occupation of the same for over thirty years, and that his grantor had had uninterrupted possession, occupation and use thereof for some years before the plaintiff purchased the property from his, the defendant’s, grantor.

Upon the trial the plaintiff proved title in himself to the premises in question, and the defendant attempted to prove the use and occupation by himself and his grantor of said private road, and attempted to establish a right of way in himself by user.

After the close of the defendant’s case, evidence .having been given in his behalf tending to show that he had for a long series of years been accustomed to traverse the land of the plaintiff over the private road in question, or in the immediate vicinity thereof, the plaintiff in rebuttal was recalled as a witness in his own behalf, and was asked the following questions: "

Q. Since Abram Relyea moved on to his farm in 1858, have you up to the time of the commencement of the present trouble known that he claimed a right of way over your land? ”
“ Q. From 1858 down to the commencement of this trouble, did you know that Abram Relyea when he ■ crossed your land crossed under a claim of right to cross ? ”
“ Q. From the use made of your lands by Abram Relyea in passing from the rear farm to the highway and from your use of his lands in order to get to your back lot, how did you understand the way to be used ? ”
“ Q. Did you believe and understand that Abram Relyea’s use of your road during the time you used his lands was a matter of mutual convenience ? ”

Objections were made to each of them on the part of the defendant, and the objections sustained and the evidence ruled out.

The evidence introduced by the defendant had been to prove a right of way in himself over the land of the plaintiff by prescription and adverse use; there is no claim or pretense of any grant. To make title by prescription or adverse user, the use and possession must be under a claim of title. Trustees of East Hampton v. Kirh, 68 N. Y., 459-65.

This claim of right or title must be with the knowledge of the person against whom it is made; it must not be a use or occupation clandestine or by stealth, and unknown to the servient owner. Ward v. Warren, 82 N. Y., 265.

It may be established by showing actual knowledge on the part of the person against whom the adverse user is claimed that the person using the land claims he has a right or title to use it, or by a visible, open and notorious use, so visible and notorious that knowledge of such use or claim by the servient owner will be presumed. Treadwell v. Inslee, 120 N. Y., 458-65; 31 St. Rep., 534.

4Thus it will be seen that there are two ways of establishing a right of way or use by prescription or user, one by use combined with actual knowledge on the part of the owner whose land is being used that the one using his land claims a right to so use it, and the other by use so open and notorious that knowledge of a claim of right will be presumed.

It follows, it seems to me, that evidence in negation of either one or both of these ways of acquiring the right by use is perfectly competent and material; evidence disproving actual knowledge of any claim of right compels the party to rely upon the other way to establish his claim, that is, that the user was so visible, open and notorious that the law would presume knowledge, where a party has actual knowledge of the claim, much less evidence would be necessary to establish a right by user than when it appears that, as a-matter of fact, he did not have actual know-edge of the claim which the person made who was using his land.

For that reason, I think the learned trial justice erred in sustaining the objections to the questions herein set forth.

It appears in the case that the private road, so called, reached to the defendant’s premises, and that the plaintiff was accustomed to cross the defendant’s, premises for a short distance to reach a back lot belonging to him, so that they mutually used each other’s land.

Sometime in the year 1877 the defendant, through his attorney, forbid the plaintiff the use of his land, and thereafter plaintiff notified the defendant that he must not use his land.

The only evidence of any grant, mutual or otherwise, is the fact that each used a portion of the other’s land; just where it was used, or whether the same line of travel had always been used by them, seems to be in some doubt; there is a conflict in the evidence in relation thereto.

In submitting the case to the jury the court charged, among other things, the following: “ There being no direct evidence of an agreement uudey which the user commenced, there is nothing to rebut the presumption of a mutual grant.”

This in substance is a direction to the jury that the evidence raised the presumption that there was a mutual grant, and that there was no evidence in the case to the contrary, and substantially took from the jury all consideration of the evidence, and did not leave them at liberty to determine from the evidence whether there was or was not a mutual grant, but was practically a decision by the court that as a matter of law upon the evidence presented “ there was a mutual grant of a right of way.” This, I think, was error. Whether there was or was not such a grant was a question of fact to be determined from all the evidence in the case; the notice given by each of the parties to the other was evidence to be taken into consideration by the j ury as to how the parties themselves understood the matter.

For the errors indicated the judgment should be reversed, anda new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concur.


author: Per Curiam.

text:
    Betsey E. McClellan, App’lt, v. Lucy Jane Zwingli, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Deed—Presumption op delivery.
    Where a deed is properly acknowledged and in the possession of the grantee, delivery will he presumed.

      2. Ejectment—Title of plaintiff’s qrantob must be shown.
    The fact that the deed under which the plaintiff claims is more than thirty years old does not change the rule which requires the plaintiff in ejectment to show title or possession in his grantor; especially in the absence of evidence showing that the deed ante-dated the occupancy of the defendant of the land in suit.
    Appeal from, judgment dismissing the complaint on the merits, entered upon report of a referee, in an action of ejectment.
    The action was commenced by the present plaintiff’s husband, who has since died, and the action has been continued in her name. The parties occupied adjoining premises, separated by a division fence, and the action was to recover possession of the premises occupied by defendant, who was the sister of the original plaintiff.
    On the trial plaintiff introduced in evidence a deed executed in 1856 by one Blair and wife to her husband, purporting to convey both lots.
    At the close of plaintiff’s evidence the referee dismissed the complaint, finding that the -deed was "not shown to have been delivered, and that the grantors therein were not shown to have owned or been in possession of the premises in question, and, therefore, that plaintiff had not proved any title or right to possession.

      S. W. Russell, for app’lt; Westfall & Graham (C. M. Westfall, of counsel), for resp’t
   Per Curiam.

We think the finding of the referee that the deed under which plaintiff claimed title was not shown to have been delivered was erroneous. Being properly acknowledged and in the possession of the plaintiff, delivery will be presumed.

But the error of the referee in the regard above mentioned did not injure plaintiff, for the reason that she failed to show any title to the premises in suit. The deed referred to was received in evidence by the referee, and after plaintiff had introduced the same she rested without any evidence showing title in the grantors named in said deed or any possession in said grantors of that portion of the premises occupied by the defendant

In Adams’ Trial Evidence (page 705), the proof required in such a case is correctly stated, viz.: “Plaintiff relying on a

conveyance to him from a grantor other than the state must show that his grantor had either title or possession claiming title.” The fact that the deed under which plaintiff claimed was more than thirty years old does not change the rule which requires in such a case proof of the title or possession of the grantors. This is especially true in the absence of evidence showing that the deed ante-dated the occupancy of the defendant of the land in suit. In this case there was no evidence whatever showing the title of plaintiff’s grantors to the premises occupied by defendant or that said grantors had ever been in possession thereof.

Tim judgment should be affirmed, with costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.


text:
    Charles O. Barber et al., Resp’ts, v. George W. Palmer et al., App’lts. The First National Bank of Champlain, Resp’t, v. George W. Palmer et al., Appl’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Mortgage—Partnership—Mortgages between partners.
    Mortgages given by individual co-partners upon their undivided interest in the partnership lands are to be interpreted as attaching only to the surplus after payment of the partnership debts and the settlement of the equities of the partners, and are not entitled to preference over a mortgage by the firm executed subsequent to the giving of such individual mortgages.
    S. Same.
    A partner who is also mortgagee on an undivided interest in firm lands belonging to his partner, when he executes with the other partners a mortgage on said lands, presumably includes in such mortgage all his interest, legal and equitable, including his interest as mortgagee.
    Appeals by defendants William M. Foote, Wallace H. Foote and Phillip V. N. McLean, as executors, and Edwin G. Moore, as trustee, from judgments in favor of plaintiffs in each of the above entitled actions, entered on the decision of the court, after a trial without a jury. The facts appear fully in the opinion of the court below, as follows:
    Kellogg, J.—The two actions above entitled were tried together, the issues being practically the same, and the material evidence the same.
    These actions were brought to foreclose mortgages; one made by G. W. Palmer & Co. to Charles O. Barber and others; one made by the same party to the First National Bank of Champlain. Both mortgages are signed by George W. Palmer, Frank Palmer, Owen A. Palmer and Charles G. Palmer, being all the co-partners in the firm of G. W, Palmer & Co.
    tfThe defendant, Edwin G. Moore, as trustee, etc., makes answer that he is the owner of a mortgage given in 1887 for $1,000, by Owen A. Palmer to Frank Palmer, on an undivided one-twelfth of this land covered by plaintiff’s mortgage, and the lien of this mortgage upon the fractional part must take precedence to plaintiff’s lien.
    The defendants, William M. Foote and others, executors, answer also that they are the owners of a mortgage given by Charles G. Palmer to Frank Palmer, in 1887, for $1,000, on an undivided one twelfth of the land covered by plaintiff’s mortgage, and that the lien of this mortgage must also take precedence of the lien of plaintiff’s mortgage.
    These two mortgages set forth in the answers of these defendants aptedate the mortgages of the plaintiffs in both of these actions, and they were both recorded in Clinton county clerk’s office before either of the mortgages here sought to be foreclosed was given.
    In the mortgage running to the plaintiff, the First National Bank of Champlain, reference is made to the fa¿t of the existence of such mortgages, but the language used is simply declaratory of the fact which the record makes constructive notice of, and the fact being'declared in the mortgage neither adds to nor detracts from the rights of parties.
    We are of the opinion that the contention of the defendants cannot prevail, for the reasons:

      First. It is undisputed that this co-partnership was formed in June, 1879. That at that time the lands in question became with other lands the property of the copartnership, and formed the staple of their stock in business. The business of the co-partnership was the making of iron, using charcoal in Catalan forges, and covering a large wooded territory of necessity. It makes no difference in whom the title to the realty stood, so long as it was conceded to belong to the copartnership. It is clear from the evidence, indeed is undisputed, that at the organization of this company in June, 1879, the land became the property of the company, and was ever afterwards used in its business. It is hardly worth while to inquire what the interest of each copartner was at the date of organization. And in view of the fact that these copartners, George W. Palmer, Frank Palmer, Owen A. Palmer and Charles G. Palmer, at that date agreed upon the terms of the copartnership, and the business and the property which should belong to it, and agreed that the lands in question, with other lands, should belong to the company so formed, and from that date such lands were used and treated always as the property of the copartnership, it is hardly worth while to inquire upon what terms the said Owen and Charles were to increase their shares in the copartnership by acquisition from either of the other partners. Whatever changes were contemplated or afterwards carried into effect by original agreement, or otherwise, the ownership of the property never changed, it was always the property of the copartnership. While the interest of each copartner might increase or diminish at any time by agreement among themselves, the copartnership remained intact. Any deed or other evidence of transfer from one to the other did not affect the company, or the title of the company, as a whole, to the assets, real or personal. The effect could only be to determine, as between themselves, the rights to profits or liability for losses, and the share of each in the surplus after the company’s debts were discharged, and the copartnership equities adjusted.
    The claims of these defendants, therefore, that the mortgages given by Owen and by Charles to Frank Palmer were the outcome of an agreement between these parties, made at the organization of the copartnership, or later, to purchase a portion of the interest of Frank Palmer in the business, or the property of the copartnership, and by so much increase their holding and diminish the holding of Frank Palmer in such copartnership, has no bearing to detract from, or give additional force to the lien of such mortgages.
    It must be considered at this date almost elementary law that the lien of a mortgage made by one copartner upon his interest in copartnership property attaches only to the surplus, after all the copartnership debts are paid. Menagh v. Whitwell, 52 N. Y., 153.
    Rapallo, J. says, p. 144: “Assuming, however, that the mortgage was intended to pass the undivided interest of the mortgaging partners, * * * it is clear that the remaining partner was entitled to control the firm property so long as he retained his interest, and apply it to the firm debts, and that the mortgagee acquired only a- right to the surplus, if any, which would be found to belong to the mortgagor on the settlement of the assets.”
    The suggestion here occurs, what would have been the effect upon the interest of George W. Palmer, in the copartnership, if the contentions of the defendants were sound in law ? George W. Palmer, it seems, under the copartnership agreement, owned two-sixths of the business and property of the copartnership, and was not a party to the deal between Frank Palmer and Owen and Charles. His interest was created when the copartnership was created. It was then definitely determined that these lands were copartnership lands, and liable as a whole to company disposition, and for use in the company business. Could Frank Palmer, through his mortgages from Owen and Charles, take out of the copartnership these lands, one-sixth of the company property, and leave the whole interest of George W. Palmer liable for the company’s debts ? Obviously not.
    In Tarbell v. West, 86 N. Y., 286, Justice Andrews says: “ It is now well settled that a purchaser from a partner of his interest in the partnership acquires no title to any share of the partnership effects, but only his share of the surplus on accounting and the adjustment of the partnership affairs.”
    In the case last cited the titles to the lands were not in the company, but in a third person, but the court held that a mortgage from the person holding title would not improve the mortgage if the mortgagee had notice that these were company lands, and he would take by his mortgage a lien only on the surplus, after all the partnership debts .were paid.
    This cannot be otherwise, on the theory that a copartnership is an entity, and deals as such with all the world. The property of the company is held “pro indivisio,” by all the partners, and in trust responsible for the debts of the partnership, and subject after debts paid to division. And while a partner may mortgage and sell his interest in the partnership, whether to purchase an increased interest or otherwise, or whether to a partner or a stranger, such mortgage or sale affects only the surplus after debts are paid and the equities of partnership are settled. If it were otherwise the rights of the other partners and of creditors would be always in peril, and practically under the control of a single partner.
    The co-partners can unitedly dispose of the corpus of the partnership property for any purpose when not insolvent, and when enough is retained to satisfy creditors, but no individual partner can divest himself of his interest, or in any manner incumber it to the injury of the co-partner or creditors. And this is the reason that mortgages by an individual co-partner are interpreted as attaching only to the surplus after debts are paid and the equities of partners are settled.
    For such reason the mortgages given to Frank Palmer must be construed to attach only to the surplus after payment of the company debts, and subject to the mortgages given by all the partners uniting in security for partnership debts.
    The other reason why the contention of the defendants cannot prevail would be operative if the foregoing were insufficient. The defendant, Frank Palmer, was the owner of these two mortgages, and mortgagee named in them, when the mortgages were executed by the company to the plaintiffs in each of these actions. He was also an owner as one of the co-partners of an undivided interest in all the lands. He knew that the land was the property of a co-partnership. He knew the property was in equity first liable for partnership debts. He knew that after the pai'tnership property was applied, he was individually liable for the claim of plaintiffs in each case. He without reservation executes these mortgages, which are here sought to be foreclosed. From these facts the inference is natural and imperative that he intended, when he joined the other co-partners in the execution of these mortgages, that they should embrace all the interest he had in the property, whatever that might be, whether as owner or mortgagee. So that if it becomes a matter of interpretation or construction founded in intention, he must be concluded by the findings which the court is impelled to make upon this point
    The philosophic reasoner may urge that because of the change in the common law rule which declared the title to the realty vested in the mortgagee to the present holding of the courts that the title remains in the mortgagor, that therefore the mortgagee takes no interest in realty which he can affect by subsequently joining in a mortgage upon the same property. But the reasoning is specious, and rather a play upon terms and words, than a sensible dealing with the substance.
    The mortgagee takes some substantial interest in the realty covered by his mortgage. The words used are apt and sufficient for a grant of the fee. A seal is necessa27 to a valid mortgage of real estate because some interest in the real estate is taken through the mortgage, The law applicable to the recording of deeds and conveyances of any real estate interest is held to be applicable to mortgages. That such an instrument intended to convey some interest in realty as security is held not to convey the title, but only the right to reach the title in case of default, is no warrant for holding that such an interest is not a substantial interest in the realty. The mortgage given to secure a note, or any other promise to pay, is not different from one given without any promise to pay by the mortgagor. But when a mortgage is given without a promise to pay, all the mortgagee can do is to resort to the land in case of default. Ruger, J., in Spencer v. Spencer, 95 H. Y., 353, says: “ The mortgagee should look to the premises mortgaged.” Surely some interest must have been vested in the mortgagee through his mortgage in such a case. Some substantial interest in the realty, though he may be forced to take steps to make such interest ripen into a fee. Why, then, is not such an interest mortgagable in equity ? Any interest whatever in realty may be in equity mortgaged. Whether such interest be a contract interest, an interest in remainder, an interest in equity, where the title is actually vested in another, 86 N. Y., 280, or any other conceivable interest, legal or equitable, it may, as well as the fee itself, be the subject of a mortgage. And when the mortgage contains language found in the two mortgages herein sought to be foreclosed, to wit: “ Have granted, bargained, sold, conveyed, and by these presents do grant, bargain, sell and convey (description of land) * * * and all the estate, title and interest of said par-
    ties of the first part therein,” it would be absurd to say that the mortgagors meant to limit the subject-matter mortgaged to the fee simple. The mortgagor says he meant to mortgage not the fee only, but “ all the estate, title and interest ” which be possessed. He could hardly have employed language which would embrace more clearly every equitable interest which he owned.
    In the mortgage to the plaintiff, the First National Bank of Champlain, in addition to the language above quoted, is found this language, describing the lands, etc., mortgaged: “All that portion of lot 110 (the land covered, also, by defendants’ two mortgages) * * * which was purchased by Gr. W. Palmer & Co., and is now owned by said Gr. W. Palmer & Co., or by any o£ the members of said company, which company is composed of the male persons named as parties of the first part herein,” such persons being the same named also in the findings of the court herein as forming such company. Here, also, is an express declaration at the time the mortgage was given, and two thousand dollars in money, a new loan, was obtained by the company, that such lands were company lands, and purchased by that company, presumably, as the evidence in the case discloses, at the date of formation of the co-partnership, in June, 1879. There is no evidence of any purchase since.
    While this view is supported by every reason, and appears to be the only aspect in which the subject is capable of being viewed without wholly overlooking general principles universally recognized, we are not left entirely without judicial declaration for our guidance. That a mortgagor, who is also part owner of the fee, and also owner of an interest in same lands as mortgagee, does, when he executes his mortgage, presumably include in such mortgage (unless an intent is apparent to exclude such interest) all his interest legal and equitable, including his interest as mortgagee, is fully supported by Chancellor Walworth, in Williams v. Thorn, 11 Paige, 165. He says: “ In other words, a mortgagor of premises, who himself held a mortgage thereon at the time he mortgaged his interest in the premises to another, cannot set up such prior mortgage or any interest he has acquired under the same against his own mortgage or against any person claiming under it. And a purchaser under a foreclosure of the mortgage given by Strong will take the premises discharged of any incumbrance thereon which Strong, either as mortgagee or otherwise, held at the time he mortgaged such premises.”

      No different adjudication has been made since this decision on the subject It is true cases may be found in which the court has relieved a wife from the effects of this legal principle, holding that she having no interest in the land except an inchoate right of. dower, and no interest in the object of the mortgage itself, her intention was manifestly only to subject. her inchoate right of dower. c-
    In Qillig v. Maass, 28 N. Y., 210, Wright, J., says: “Of course, a mortgagor of premises who himself holds a mortgage thereon at the time he mortgages his interest in the premises to another cannot set up such prior mortgage or any interest he has acquired under the same against his own mortgagee, or any person claiming under him.”
    I find no authority equal to this which seeks to at all qualify this plain declaration of a principle—a principle which ought to commend itself to any judicial mind by reason of its sheer common sense.
    I have made no comment upon the claim of defendant that the collateral interest which the Merchants’ National Bank of Plattsburgh had in the two mortgages now owned by defendants at the time of the execution by the mortgagee, Frank Palmer, of the two mortgages here sought to be foreclosed, prevented such mortgages from being affected thereby. I see no force in the claim, since the claim, if of-any value, could only be made by such bank. As the bank has been satisfied, and the collateral released to Frank Palmer himself, the claim ceased to exist, if any there ever was, the moment of such release by the bank, and that moment the claim of these plaintiffs extended over and absorbed all the interest the bank possessed; and any subsequent transfer by Palmer must be held subject to plaintiffs’ superior liens.
    The bank holding the mortgages as collateral could not assign the mortgages to Theodora Palmer or any other person so as to conv.ey any title thereto. The bank could only release, or else it must only transfer the notes for which the mortgages were held as collateral security in order to convey the slender interest it held in the mortgages.
    For the reasons stated the defendants cannot in this action set up either of their said mortgages against the mortgages of plaintiffs.

      C. McLean (Henry E. Barnard, of counsel), for app’lts; D. F. Dobie, for resp’ts Barber et al; T. F. Conway, for resp’t Bank.
   Affirmed on the opinion of court below.

Mayham, P. J., Putnam and Herrick, JJ., concur.


author: Babbett, J.

text:
    Mary Duffy, Resp’t, v. Catharine Duffy (John McArdle, Adm’r) et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Dower—Acceptance of provision of will in lieu of.
    Where a widow makes no claim for dower within one year, her election

      to accept the provisions of her husband’s will in lieu thereof becomes fixed * and settled, and cannot be affected by a subsequent incorrect claim in an action for partition that he devised all his real estate to her, and in case of her death before a sale, her administrator is entitled to the proceeds of the interest so devised.
    Appeal from three orders of the special term described in the •opinion.

      Rufus M. Williams, for app’lt; Sidney H. Stuart, for pl’ff resp’t; W Irwin, for Susan Daly, resp’t; Doherty, Durnin & Hendrick, for Francis Duffy et al., resp’ts.
   Babbett, J.

There are here three appeals. First, an appeal from what is called an order made by Mr. Justice Lawrence at special term on the 3ist day of May, 1892, confirming a referee’s report of sale in partition and decreeing distribution of the proceeds of sale. Second, an appeal from an order made by the same justice at special term on the 22d day of June, 1892, denying a motion to resettle the previous order by varying the direction therein as to the distribution of a certain part of the proceeds of sale. Third, an appeal from an order made by Mr. Justice In-graham at special term, denying a motion to amend the interlocutory judgment in the particulars as to which relief had been sought by the motion last referred to.

The substantial question brought up by these appeals is whether Catharine Duffy, the widow of Philip Duffy, did or did not elect in her lifetime to accept the provision made for her in her husband’s will in lieu of dower. That provision was a devise of the undivided half of the property sold under the decree of partition herein, “or one-half of the net proceeds thereof, to her or her heirs or devisees forever.” Philip Duffy died on the 3d day of June, 1886. Catharine made no claim to dower within one year thereafter. Under the statute, then, her election to accept the provisions of the will became fixed and settled. She could not thereafter reject such provision and claim her dower. 1 R. S., 741, § 14; Akin v. Kellogg, 119 N. Y., 447, 448; 29 St. Rep., 561.

It is contended, however, that there was an express repudiation of the provision of the will; not in the manner contemplated by the statute, for Mrs. Duffy neither entered upon the lands individually, nor did she commence proceedings for the recovery or assignment of dower, but by the assertion in her answer in this action of a greater right than that conferred by the provision of the will. We say that Mrs. Duffy never entered upon the lands individually, because it is claimed that her acts in collecting rents ■emphasized her refusal to accept the provisions of the will. But she .collected these rents as executrix, and her acts in that regard :had no bearing upon the question of her individual election.

In her answer Mrs. Duffy denies the tenancy in common setup ■in the complaint; alleges that, by the will, her husband devised all his real estate to her; and asserts absolute ownership in fee of -the premises in question and of the whole thereof. We do not think that Mrs. Duffy was concluded by this claim of superior .right. By making it she did not reject the provision of the will as between such provision and the dower right. The question whether she would accept such provision rather than dower was. not involved in the assertion of another and a different right which was greater than either; and the assertion of the greater right was not inconsistent with the acceptance of the lesser. Her claim of absolute ownership involved an inaccurate construction of her husband’s will, not repudiation of what was really provided. If the situation had been reversed, her baseless assertion of absolute ownership would not have relieved her from the running of the-statutory year, nor would an election thereafter to take dowei; have been permitted. The election to accept the testamentary provision follows the running of the statutory year, unless in the-interim there is, as was said in Chamberlain v. Chamberlain, 43 N. Y., 424, “ an unequivocal assertion of a claim to dower and a renunciation of the provisions made by the will.” Here there was neither assertion of the one right nor renunciation of the other. There was simply what amounted to an unfounded claim, based upon an inaccurate opinion, that the will gave her more than it really did give her; and, as a sequence, that she not only accepted, but actually insisted upon, all that it gave her, the remaining one-half as well as the one-half clearly devised; that is, the whole.

It is contended, however, that the order of distribution was. right, because it followed the interlocutory degree which was made on the 19th of December, 1887. By this latter decree Mrs. Duffy was required to indicate her refusal -of the provisions of' the will and her election to accept dower by an instrument in writing to be filed, and a certified copy thereof to be delivered to the referee, within thirty days after the sale. In case she failed to do this, the decree provides that she shall be deemed to have accepted the provisions of the will. These words then immediately follow this latter expression:

“ To be fixed by the said referee according to the principles of law applicable to annuities, and to be paid over to,,her in a, gross sum; or, at her election, one-third of the proceeds of said sale to be paid into court according to law and the rules and practice of the court for the purpose of being invested for her benefit, according to law.”

This is somewhat confusing, but the meaning can be gathered from the context. It is quite evident that the words which we-have quoted were intended to apply to an election to receive-dower, and not to the acceptance of the provisions of the will. Plainly, they could not have applied to an acceptance of the provisions of the will. The decree should be read as though all. that preceded these words, with regard to the manner of refusal and election, had been embraced in a parenthesis. It would then read clearly enough, and, doubtless, as was intended, to wit: “The dower of the said defendant Catherine Duffy, wife of Philip Duffy, deceased, in case she refuses to accept the provisions of said will of said Philip Duffy and elects to receive said dower * * * to be fixed by the said referee according to-the principles of law applicable to annuities," &c.

Mrs. Duffy died long before the sale, and she never filed a¡refusal to accept the provisions of the will or an election to receive dower. It will be observed that she was not required to file an election to accept the provisions of the will. Acceptance was deemed to follow her failure to file “ such refusal or election ”—that is, such refusal of the provisions of the will or such election to receive dower. Whether this part of the interlocutory decree was authorized we need not consider. It attempted to give the widow more than the statutory year to determine whether she would prefer dower to the provisions of the will. But, even if the decree was right in this respect, it did not. justify the recital in the order appealed from of May 31, 1892,. upon which recital Mrs. DuEy’s representative has been deprived of any share of the proceeds of the sale.

This recital is as follows: “And it appearing to the satisfaction of the court, by the affidavits of' William Irwin and Sidney H. Stuart, that the defendant, Catherine Duffy, died on the 19th day of November, 1890, without having accepted the provisions of the will of Philip Duffy, deceased, in lieu of her dower in his estate, and without having elected to receive the same in lieu thereof.”

This, as we have seen, does not follow the interlocutory decree, nor is it warranted by the facts. Mrs. Duffy had accepted the provisions of the will by failing to commence proceedings for the recovery or assignment ” of her dower within one year after the death of her husband; and she thereby had elected to receive such provisions, whatever they were and however they might he construed, in lieu of dower.

What has been called the order of May 31, 1892, was in reality the final judgment in the action entered pursuant to § 1577 of the Code of Civil Procedure. It was founded upon the report of sale and upon the pleadings, interlocutory judgment and all the proceedings in the action. But it was not founded upon the affidavits of William Irwin and Sidney H. Stuart, which are recited therein. The notice of the application makes no mention of these or of any affidavits, nor are they to be found in the record. These gentlemen made affidavits to oppose the subsequent motion for a resettlement of this judgment, but none, apparently, to support the recital under which the court adjudicated against- Mrs. Duffy’s representative. All that could be finally adjudged, following the interlocutory decree alone, was that Mrs. Duffy died without having refused the provisions of the will or elected to receive dower. Even as to that, the interlocutory decree ceased to be operative upon her death. For she had thirty days after the sale thereunder to file her refusal. It is apparent that upon her death further directions became imperative, and that her representative was entitled to a hearing in the usual way upon proper proofs.

We think, however, that all the facts essential to a final disposition of the question in dispute were before the court upon the motion for a resettlement of the order or judgment of distribution, and that the right of Mrs. Duffy’s representative to one-half of the. net proceeds of the sale then sufficiently appeared.

The order of June 22,1892, should, therefore, be reversed and the motion granted, and, accordingly, the order or judgment of May 31, 1892, should be modified by striking out the recital above referred to, and instead thereof adjudging that Catherine Duffy did elect to accept, prior to her death, the undivided one-half interest in the property first described in the complaint and in said judgment of partition in lieu of her dower, and that her estate and next of kin are entitled to receive the same, and that the referee named in the judgment of partition be directed to pay over to the administrator of the estate of the said Catherine Duffy, deceased, one-half of the net proceeds arising from the sale of said premises, with ten dollars costs of this appeal and disbursements, payable out of the general proceeds of the sale.

And the appeal from the order of March 23, 1893, should be dismissed without costs.

Yan-Brunt, P. J., and Follett, J., concur.