author: E. D. Smith, J.: Mullin, P. J.

text:
    GEORGE B. BOOMER, Respondent, v. LEWIS E. KOON, Impleaded, etc., Appellant.

      Pleading — denial that defendant made note — its alteration may be shown under.

    Evidence showing that a nóte has been altered after execution, held, admissible under an answer denying that defendant made the note in the complaint mentioned

    Appeal by defendant, Koon, from an order directing a verdict for the plaintiff and denying a motion for a new trial. The action was brought upon a promissory note alleged to have been made by the defendant to the plaintiff, and was tried at the Onondaga Circuit. The defendant, in his answer, denied that he made the note in the complaint mentioned.

      Geo. N. Kennedy, for the defendant.

      Chamberlain <& Knapp, for the plaintiff.

       This case was decided at Rochester, at the April Term, 1875. The dissenting opinion of Mullin, P. J., following that of Smith, J., is also reported in 6 N. Y. S. C. (T. & C.), 645.

   E. D. Smith, J.:

The complaint alleges, in the usual form, the making and delivery of the promissory, note upon which the action is brought, and describes it according to its terms.

Tbe answer denies that at the time in said complaint mentioned, or at any other time, the defendant made the note in the said complaint mentioned, and also denies that he delivered the note in said coinplaint mentioned as alleged in said complaint. At the trial, the plaintiff produced the note described in the said complaint, and proved the defendant’s signature thereto.

The defendant then offered to prove that the said note had, after its execution and delivery, been altered by adding the words with interest thereto, which offer was overruled and the evidence excluded, irpou the ground that it was not admissible under the general denial of the answer. An exception to this decision presents the only question for our decision.

It is true that under the Code there is strictly no general issue, but a general denial of each and every allegation of a complaint, or a specific denial of any particular allegation therein, necessarily puts every such allegation in issue. Every fact thus put in issue, must be proved by the party affirming such fact. The making, execution and delivery of the note described in the plaintiff’s complaint, he was, under the denial in the answer, bound to prove. Proof of the defendant’s signature to such note was, doubtless, prima faeie evidence of such facts; but prima facie evidence is never conclusive. It may always be repelled by proof directed and adapted to show the actual facts. Under a general or special denial a defendant must be permitted to disprove the essential facts, relied on to establish the cause of action. The defendant denies in fact and effect, that he ever made the promissory note described in the complaint. The proof that the note produced on the trial had been altered in a material part, was clearly proof that it was not his note; that he did not make and deliver such note. It overcame and repelled the prima facie evidence afforded by proof of his signature, and destroyed the cause of action. Such proof was admissible at common law under a plea of non est factum in an action of debt or covenant. (1 Chitty Pleadings, 482, 483.)

There is no distinction in principle between the denial under a' plea of non est factum, that the deed set up was the defendant’s deed, and a denial in an answer under the Code, that a promissory note declared on is not his note, and was not, in the form and effect set up in the complaint, made and executed by him. This is asserted in principle in Schermerhorn v. Van Allen (18 Barb., 29); Andrews v. Bond (16 id., 633); Beaty v. Swarthout (32 id., 293); Van Santvoord’s Pleadings (3rd ed.), 565.

It was not new matter, such as is required to be set up in an answer in avoidance or discharge of an admitted cause of action, within the cases of McKyring v. Bull (16 N. Y., 297), and Quin v. Lloyd (41 id., 349).

It, doubtless, would be very proper, and, perhaps, the better practice where the defense in an action upon a promissory note or other written instrument is, that the same had been fraudulently altered after its execution, to set up such defense in the answer to avoid surprise at the trial. But the question raised on this appeal is, whether the defendant shall be precluded from such defense because he has omitted to set it up in his answer. We think the law is otherwise, and that the order 'denying a new trial should be reversed, and a new trial granted, with costs to abide the event.

Morgan, J., concurs.

Mullin, P. J.

(dissenting):

This action was brought to recover the amount due on a promissory note, made by the defendant Koon, for $150, bearing date October 1, 1873, and payable at the A.uburn Savings Bank on the 1st of January, 1874, to the order of Oscar P. Boomer.

The complaint alleged that the defendant Koon, made the note and delivered the same to the payee therein named, and that said payee, before said note became due, transferred the same to the plaintiff.

The defendant Koon, in his answer, denied that he made the note, and also that he delivered it to the payee. On the trial, the plaintiff called the maker and proved by him that he signed the paper handed to him, which was the note in question.

On cross-examination, the defendant’s counsel inquired of the witness whether, when he signed the note the words “ with interest” were in the note. The plaintiff’s counsel objected to the question on the ground that the evidence was not admissible under the defendant’s answer.

The court sustained the objection and the defendant’s counsel excepted. The defendant’s counsel then offered to show that when the note was signed and delivered it did not contain the words “with vnterest,” and that after execution and delivery it had been altered by adding the words “ with interest,” and that the alteration was made without the defendant’s knowledge or consent.

The plaintiff’s counsel objected to the evidence, that it was not admissible under the answer. The court sustained the objection, and the defendant’s counsel excepted. The note was then offered and received in evidence, and the court ordered a verdict for the plaintiff for the amount of the note and interest.

‘ The defendant’s counsel moved for a new trial on the judge’s minutes, and the same was denied. The defendant appeals.

The only question in the case is, whether evidence of the alteration of the note by adding the words “ with interest ” was admissible under the denial in the answer, that the defendant had executed or delivered the note, or whether it was new matter which, under the Code, must be set up by way of defense in the answer. This defense was admissible under the general issue before the Code (1 Chitty’s PL, 25, 311) in the action of assumpsit. It was also admissible under the plea of ‘■'■non est faetum,” in the action of covenant. (Id., 519.)

It was held in the Exchequer, in Cook v. Coxwell (2 C., M. & W., 291), that in an action against the acceptor of a bill, it was admissible for the defendant to prove, under a plea denying the acceptance, that the bill had been altered after acceptance, without his consent. What the rules of pleading were in England when these cases were decided we are not informed, but I apprehend they are not the same as are prescribed by the Code. Van Santvoord, in the third edition of his work on Pleading (page 565), says: “An alteration of a bill need not be pleaded if defendant deny the existence of the bill referred to in the complaint; ” and after citing the case in the Exchequer, adds, “ it is safer to allege the alteration.” The suggestion is a proper one.

It is true that if a bill or other contract is altered in a material part after execution and delivery, it is no longer the contract the party executed and delivered ; and in that view the denial of execution and delivery would impose upon the plaintiff the burden of proving the execution of the identical paper produced in evidence; and any evidence that it is not the same paper might, with a con- ■ siderable degree of plausibility, be held admissible under the denial.

The Code requires the defendant, in his answer, to deny generally or specifically the allegations in the complaint, and to set up any new matter constituting a defense or counter-claim. The legislature intended to require the defendant, in his answer, if he designed to put the plaintiff to the proof of all or any of the allegations in the complaint, to deny the same generally or specifically, and under such denial to permit the defendant to give in evidence any matters tending to disprove the allegation in the complaint. ' But if the defendant has matter of defense arising after the contract was made, and which he relies upon in bar of the action, such defense is new matter, which must be set up in the answer.

The object of all pleading is to apprise the opposite party and the court of the matters that the pleader intends to rely upon to support or defeat the action; and if it falls short of this important object it is fatally defective; and a system of pleading that would enable a party to conceal from his adversary the facts that he designs to prove, would open the door to the grossest injustice and abuse. The case furnishes an apt illustration of the mischief of reinstating, to any extent, the general issue as it was understood at the common law.

The plaintiff was required only to prove that defendant had only signed his name to the note, and had delivered the paper thus signed, to some person, as a binding contract. Upon this evidence the plaintiff was, prima facie, entitled to a verdict. The defendant then proposed to show that, after the contract was thus executed, it had been altered in a material part. The note may have passed through a dozen hands, each of whom was ignorant of the alteration. Now, how could the plaintiff be assumed to be prepared to meet a defense as to which no intimation was given in the answer, and nothing appeared on the face of the note to which attention would be called or suspicion excited.

I think the court was right in rejecting the evidence. We should give effect to the intention of the legislature in forming the rules of pleading prescribed by the Code, rather than the decisions of courts acting under a widely different system of pleading; especially where the one system prevents surprises and injustice, and the other permits both.

The order denying a new trial must be affirmed.

New trial granted.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    MARY E. CONWAY, Appellant, v. JOHN F. MOULTON, Survivor, etc., Respondent.

      Code, §. 399.
    J. Conway sold certain tools to the plaintiff, his daughter; afterward he engaged in the service of the defendants, and, with the consent of the plaintiff, agreed with them that the use of the tools should be transferred to them for an indefinite time, for whatever the use should he worth. When the work ceased the tools were left with the defendants, and this action was brought to recover them. Upon the trial plaintiff offered to prove by Conway, that he had demanded the tools from the defendant Russell, who was dead at the time of the trial, and that he had refused to deliver them. Held, that the evidence was properly rejected as inadmissible, under section 399 of the Code.
    Appeal from a judgment in favor of the defendant, entered upon the dismissal of the plaintiff’s complaint at the Circuit.

      J. C. Cochrane, for the appellant.

      W. F. Coggswell, for the respondent.
   Gilbert, J.:

James Conway sold the tools in controversy to the plaintiff, who is his daughter. Afterward he engaged in the service of the defendants, and with the consent of his daughter, himself made an agreement with them whereby the use of the tools in the prosecution of the same work in which the father was employed was transferred to them for an indefinite period, for what the said use should be worth. When this work ceased, the tools were left in the possession of the defendants, and this action is brought to recover the value thereof upon the allegation that they had been demanded from the defendant Russell, who died before the trial, and that Russell refused to deliver them. Upon the trial the plaintiff offered to prove by James Conway tbe demand and refusal. The court refused to allow the witness Jo testify to those facts, and the plaintiff excepted. This exception presents the only question in the case. Section 399 of the Code prohibits the examination of any person from, through or under whom the plaintiff derives any interest or title, as a witness, in regard to any personal transaction or communication between such witness and a deceased person against the survivor of such deceased. person. This prohibition exactly fits this case. After Bussell died the action proceeded against Moulton, as surviving partner. The plaintiff derived title to the tools from James Conway. He made the agreement with the defendants for the use of them. So far as the evidence shows, he was the ostensible party' to the transaction with the defendants. True, he testified that he spoke to his daughter about it, and she replied that she was satisfied with any tiling he did; but all the business was done with Janies Conway, as principal. For aught that appears, the defendants had no knowledge that the plaintiff or any one besides James Conway owned or had any interest in the tools. The case, therefore, is not only within the words of the statute, but is also within its object and intent. When a vendor sells property, and after the sale acts in the disposition of it openly, and in fact, as the agent of the vendee, the transaction may, perhaps, be regarded as one with the principal although had personally with the agent, and so, if within the letter, is not within the equity of the statute. But a transaction like this is, we think, clearly within both.

The judgment must be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.


text:
    THE PEOPLE ex rel. ANDREW Y. THOMPSON and others, v. THE MAYOR, Etc., OF THE CITY OF SYRACUSE and another, Respondents.

      Assessment — irregularity—return to certiora/ri — effect of.

      Geiriiorwri to review an assessment levied by the defendants of tbe expenses of paving a street in tbe city of Syracuse. Tbe return showed tbe required petition for, and notice of tbe proposed improvement; that tbe work was done under contract, and had been completed, and that all requirements of the charter had befen complied with. Held (1), that the fact that the work had been done under two contracts instead of one affected no substantial right; (2), that the validity of this assessment was not affected by the fact that it was preceded by two assessments for the expenses of the separate parts of the work done under each contract, which had been subsequently set aside and annulled.
    A return to the writ is conclusive as to the facts stated in it, and must be taken as true. If it is false, the relators’ remedy is by action.
    Oertiorari to review an assessment, and the proceeding upon which it was granted, to repave East Genesee street, in the city of Syracuse, between Grape and Orange streets.

      R. Burdick, for the relator.

      Huger db Jenney, for the respondents.
   Gilbert, J.:

The object of this oertiorari is to invalidate an assessment of the expense of paving East Genesee street, from the west side of Grape street to the east side of Almond, in the city of Syracuse.

The return made to the writ shows that on the 23d of May, 1870, a petition for this improvement, signed by a majority of the owners of the property upon the line thereof, was presented to the common council; that on the 10th of September, 1870, notices of such proposed improvement were served upon the parties to be assessed, conformably to the requirement of section 1, title 7 of the charter; that thereafter the common council entered into a contract for the making a portion of said improvement, namely, that between the west side of Grape street and the east side of Orange street, and that subsecpiently they entered into a contract for the making of the residue of said improvement, and finally caused separate assessments to be made, in the manner provided by the charter, to defray the expense of the respective parts of the work. The only irregularity, if there be any, in the proceedings of the common council, has arisen from their act in dividing the improvement into two sections. But that was effectually cured by the cancellation of the separate assessments, and causing the one under review to be made, which embraces the expense of the entire improvement, from Grape to Almond street.

The return is conclusive as to the facts stated in it, and must be taken as true. If it is false, the relators must seek their remedy by action. (Haines v. Judges of Westchester, 20 Wend., 625; People v. Morgan, 65 Barb., 473.)

The return shows the requisite petition for, and notice of, the proposed improvement; the work was done under contract, and has been completed. The fact that it was done under two contracts instead of one affects no substantial right. No legal error in the assessment has been pointed out, nor is it alleged that it was not prepared and authenticated conformably to the charter. The fact that it was preceded by assessments for the expense of separate parts of the work, which were set aside and annulled, does not, in our opinion, affect its validity.

The objections of the relators seem to us to be unfounded in fact.

The proceedings must, therefore, be affirmed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Proceedings affirmed, with costs.


author: Smith, J.

text:
    HENRY WOODIN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Writ of error —judgment.

    A writ of error to review a conviction in an inferior criminal court, will be dismissed when no judgment or judgment record has been entered, or is returned to the court issuing the writ.

      Dawson v. The People (5 Park. Crim. R, 118); Ilild&rbrand v. The People (8 N. T. S. C. [1 Hun], 19) followed.
    Writ of error to tlie Court of Sessions of the county of Ontario, to review the conviction of the plaintiff in error of subornation of perjury.

      H. G. La/pham, for plaintiff in error. Edwin Hicks, for defendants in error. .
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Writ of error dismissed.


author: Mullin, P. J.

text:
    JOHN STELLWAGEN, Respondent, v. THE MERCHANTS’ LIFE INSURANCE COMPANY, Appellant.

      Application for insurance — signature of applicant.

    An application for insurance may, in the absence of any positive regulation of the company defining the circumstances under which the applicant is excused from personally signing it, be signed by a duly authorized agent of the applicant, or in any way by which he will be bound in fact as well as in law by the contents thereof.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      E. Q. Sprague, for appellant. Delaman F. Clark, for respondent.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


text:
    THEODORE E. WHEELER, Respondent, v. JOHN P. SCOFIELD, Impleaded, etc., Appellant.

      Mechanic's lien — chapter 489 of 1878 — consent of owner.

    Under the mechanics’ lien law, chapter 489 of 1878, it is not necessary that every person furnishing materials or labor to a contractor should obtain the consent of the owner of the building to do so. It is enough if the owner, knowing that labor or materials are being furnished to the contractor, does not object to it. In such case he will be deemed to consent to it, and that is all that the legislature requires.
    If he is not satisfied that a particular person should perform labor or provide materials, for any reason, he can object to it, and thus prevent such person from ever getting a lien on his property.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      William S. Briggs, for appellant. Morris Brown, for respondent.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


text:
    SAMUEL L. NICHOLSON, Respondent, v. HEMAN WAFUL, Appellant.

      Evidence.

    In this action, brought against the defendant as the maker of a promissory note for $450, dated April 28th, 1878, he denied that he had ever made such a note, and alleged that, if he had ever signed the note, it was while he was intoxicated, and that he only received $250, for which amount he had given his note. Upon the stand he offered to show that in 1870 the plaintiff said he had not $100 ; that for some two years he was employed by a firm of millers, and received one dollar and fifty cents per day, out of which he had to support a wife and furnish a house; that in June or July, 1872, he said he had no funds, and could not raise $100; which evidence was, against the exception of defendant’s counsel, rejected. Held, error ; that it should have heen admitted, as tending to show that the defendant had never received the money.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      K. Whiting, for appellant. Lansing dc Rogers, for respondent.
   Opinion by

Mullin, P. J.

Present' — Mullin, P. J"., Smith and Gilbert, JJ.

Judgment reversed, and new trial granted before another referee, with costs to abide the event.


author: Gilbert, J.

text:
    EDWARD ABEEL and others, Respondents, v. IRA SEYMOUR and others, Appellants.

      Promissory note — anithoriiy to indm'se — how proved.

    In this action, brought to charge the defendant as the indorser of a promissory note, it appeared that he had been accustomed to assume the liability of indorser on promises on which his name had been written by his son; that he did not deny the validity of the indorsement in the present case until after his son had absconded, but impliedly admitted his liability upon it. Held, that these acts, unexplained, established, as against him, the authority of the son to indorse his name upon the note, and that he was liable thereon. (Bi’uanv. Qengelle, 3 Esp., §0; Weed v. Oa/rpenter, 10 Wend., 403; Builw'-v. Stocking, 4Seld., 408; Prescott v. Flinn, 9 Bing., 19.)
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      George N. Kennedy, for appellants. Wm. G. Ruger, for respondents.
   ■Opinion by

Gilbert, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


text:
    JOSHUA BURDITT, Appellant, v. PATRICK BARRY, Respondent.

      Collector of school district — appointment of— officers de jure and de facte.

    The verbal appointment of a collector of a school district by a trustee thereof, is invalid; such appointment must be made under the hand of the trustee and be filed in the office of the district clerk. (Laws of 1864, chap. 555, tit. 1, § 15, sub. 4; tit. 3, §§ 27-32-88.)
    Acts of officers de facto may be valid as far as the public and third persons are concerned, but when the officer himself is sued for an act done by him, which he justifies by averment that he did it as such officer, he can establish his justification only by proof that he is such officer de jure. (People v. Hopson, 1 Den., 574; Colton v. Bem'dsley, 88 Barb., 29; Newman v. Tiernan, 37 id., 159; Hamlin v. Hingman, 5 Lans., 61; People v. Nostrand, 46 N. Y., 375.)
    Appeal from a judgment of tbe County Court of Niagara county in favor of the defendant, entered upon the verdict of a jury, and from an order of said court denying a motion for a new trial made upon a case and exceptions.

      James F. Fitts, for appellant. F. Bmmdage, for respondent.
   Opinion by

Gilbert, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

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


text:
    EDWARD TICKNER, Plaintiff in Error, v. THE PEOPLE, Defendants in Error.

      Burglary — degree offeree.

    Where the door of a house is tightly 'closed, without being either bolted, locked, or fastened, it is burglary to open it and enter the house with the purpose of stealing. . (2 Whart. Crim. Law, § 1541; Curtis v. Hubbard, 1 Hill, 338 ; Bex v. Bussell, 1 Wood, 397; State v. Seed, 20 Iowa, 413; People v. Bush, 3 Parker, 552.)
    Writ, of error to the Court of Sessions of the county of Onondaga, to review the conviction of the plaintiff in error of burglary in the second degree.

      Ba/udall & Bandall, for plaintiff in error. . William James, district attorney, for defendants in error.
   Opinion by

Smith, J.

Present — Mulles, P. J., Smith and Gilbert, JJ.

Judgment affirmed.


text:
    SOPHIA A. SEARLES and another, Executors, Appellants, v. VOLMER R. HARVEY and others, Respondents.

      Writ de lunático inquirendo — Inquisition—finding in as to duration of lunacy— effect of.

    An inquisition taken by virtue of a writ de lunático mquirendo, which finds that the alleged lunatic was of unsound mind, and had been in such condition for twenty-four months, is not conclusive evidence of the incapacity of the alleged lunatic to make a will during such twenty-four months. {Wadsioorth v. Sharpsteen, 8 FT. Y.,388; Van DuesenY. Leveed, 31 id., 379; Wolcott v. Adee, 3 Lans., 173.)
    Appeal from an order of the surrogate of Jefferson county, refusing to admit to probate, a will purporting to be the will of Elisha Harvey, deceased.

      L. J. JDorwin, for appellants. Hubbard dé Walts, for respondents.
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order of surrogate affirmed, with costs of appeal.


text:
    CHARLOTTE E. SULLIVAN, Respondent, v. JOHN C. SULLIVAN, Appellant.

      Wages — services rendered by merriber of family — Evidence.
    Where members of the same family live together, an express, distinct and well understood bargain to pay for board on the one side, or wages on the other, should be clearly proved before such a claim should be allowed. {B/Mnson v. Oushnian, 2 Denio, 152 ; Dye y. Kerr, 15 Barb., 444; Wilcox v. Wilcox, 48 id., 329; Shirty v. Vail, 38 How., 406; Williams v. Hutchinson, 3 Comst., 312.)

      Appeal from a judgment, entered on the report of a referee, in favor of plaintiff.

      Huger da Jenney, for appellant. Johnson <& Hoyt, for respondent.
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

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


text:
    SANDY B. CASLER and others, Respondents, v. ELIZABETH SITTS, Impleaded, Appellant.

      Mutual mistakes — correction of — bona fide purchaser.

    Although courts of equity will, in actions between the parties to any instrument or transaction, or their privies, correct mutual mistakes which have occurred therein, yet this will not be done, when the interest acquired by one of the parties to such instrument or transaction has been subsequently transferred to a Iona fide purchaser without notice. (1 Story’s Eq. Juris., § 165; Gady v. Potter, 55 Barb., 463.)
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Watts T. Loomis, for appellant. Earl, Smith db Brow, for respondents.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed so far as it orders reformation of deed, and modified so as to determine the rights of the partition, and directs partition as the rights are set forth in the answer. Question of costs reserved.


text:
    PATRICK W. BRADLEY, Appellant, v. JAMES M. COLE and JOHN D. COLE, Respondents.
    Appeal from a judgment in favor of the defendant entered upon the report of a referee.
    In the latter part of 1813, the defendants, who were partners in the business of wagon making, at Phelps, in the county of Ontario, agreed with F. Baker & Co., who were at the same time engaged in the sale of groceries, at the same place, to make, from materials furnished by themselves, a democrat wagon, for the price of $125, to be paid for out of the store of Baker & Co.
    Before the wagon was finished, Baker & Co., being about to dissolve their partnership, requested defendants not to complete the wagon, and release them from the agreement to pay for it. The defendants declined to do so, as it would leave on their hands an 'unsalable article; and, after some negotiation, it was agreed that defendants should complete the wagon, and, when done, sell it, and if it brought less than the contract-price Baker & Co. would pay the deficiency. Baker & Co. paid defendants the price agreed upon for their wagon.
    Before it was completed, Baker & Co.' sold the wagon to the plaintiff, and took his note in payment therefor; and gave an order on defendants, directing them to deliver the wagon to the plaintiff.
    Plaintiff presented the order to defendants, and they refused to deliver it until a debt due from one of the firm of' Baker & Co. to one of the defendants was paid.
    When the order was presented, a small amount of work was required to be done, in order to complete the wagon. The shafts were made, but not affixed to the wagon ; and the wheels were not put upon the axles.
    Before these things were done, proceedings were taken to replevy the wagon, and the sheriff, by virtue thereof, seized said wagon, and delivered it to the plaintiff.
    When the action was commenced all the parts of the wagon were in defendant’s shop.

      The General Term held, that as the defendants did not pnt their refusal to deliver the wagon to the plaintiff on the ground that' they had not completed the wagon, and that the plaintiff was not entitled to possession until delivery, but on the specific ground that they would not deliver unitil a debt due by the firm of Baker- & Go. to one of the defendants was paid, they waived all other grounds, and could not be allowed to- abandon it and insist upon non-delivery as a defense.

      JE. W. Gardner, for appellant. D. Stephenson, for respondents.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment reversed, and new trial granted before another referee, costs to abide the event.


author: E. Darwin Smith, J.

text:
    CATHERINE T. HILL, Respondent, v. JOHN HEERMANS, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered at the Steuben County Circuit on the verdict of a jury.
    Mr. Eellows, an old man of great wealth, tired and oppressed with the care of his large estate, proposed to get relief to himself for the remaining period of his life by-trusting to the defendant the management of his property, with power, among other things, to sell the same and pay to him the proceeds, so far as such property was sold and converted into money during his lifetime ; and, with this view, executed two deeds of trust for such purpose, by which deeds he conveyed to the defendant in this action all his real and personal estate.
    This action was brought by the plaintiff for the recovery of the possession of an oil painted portrait of Mr. Eellows, which plaintiff claimed Mr. Fellows had given to her, after the execution of the deeds above mentioned. The General Term held, that as Mr. Eellows would be entitled to the proceeds- of all sales of his property, he was clearly entitled to retain any of the articles of such property to himself, and convert them to his own use in lieu of the money; and might forbid the sale of family pictures and furniture, including the portrait of himself, and give it to his sister this plaintiff, as well, and with as much right, as he might give her the proceeds of such portrait if it had been sold and converted into money. That it was not such property as he could ever have intended to sell or divert from his family; and that the charge of the judge at Circuit, that the picture did not pass by the trust deeds, was correct.
    That it was not within the spirit and intent of said deeds to convey or pass such property, any more than it was to sell the watch in his pocket or the coat upon his back.

      Brown '<& Sadden, for appellant. Geo. B. Bradley, for respondent.
   Opinion by

E. Darwin Smith, J.

Present — Mullin, P. J., Smith and Gilbert, J J.

Judgment affirmed.


author: Barnard, P. J.:

text:
    POMEROY P. DICKINSON and others, Respondents, v. THE CITY OF POUGHKEEPSIE, Appellant.

      Contraéis for public work— alteration of terms of, after receiving proposals for.

    A board, authorized by law to make contracts by publishing for proposals for the work to be done for two weeks, and by giving the contract to the lowest bidder, has no authority, after the bids have been opened, to materially alter the contract by adding a clause thereto, and then award the contract to one of the original bidders, without a new advertisement for proposals.
    Appeal from a judgment in favor of the plaintiffs and against The City of Poughkeepsie,-for $17,199.54, entered upon the verdict of a jury. Also, from an order refusing the defendant’s motion for new trial.
    The action was commenced against “The Water Commissioners of the City of Poughkeepsie,” as defendants. They interposed an answer, upon which the cause was tried at the Dutchess Circuit, in March, 1874, when the plaintiffs were nonsuited. On appeal from the judgment dismissing the complaint, the General Term ordered a new trial. (2 Hun, 615.)
    Pending the appeal an act was passed, by which the acts under which the water commissioners were organized, were consolidated with the charter of the city as then amended. This act took from the commissioners the power of prosecuting and defending suits, and provided for the enforcement against the city of any liabilities contracted or incurred by the- commissioners. (Laws of 1874, 641-681 686, § 1.) The contract upon which the action was brought contained the following clause, not contained in the form of contract annexed to the proposal for bids: “ s It is further mutually agreed by the parties hereto that for any work not herein classified or defined as to price, and which said contractors may be directed by said engineer in writing to do, the said contractors shall receive and they hereby agree to receive as full compensation for said work the actual cost of the work with fifteen per cent added for wear and tear of tools, superintendence, profits.”
    After the decision on the appeal, the court substituted the present defendant in the place of the water commissioners, and allowed it to interpose a new answer.

      O. D. M. Baker, city attorney, for the appellant.
    Nelson, Cook & Thorn, for the respondents.
   Barnard, P. J.:

This case has once before been heard in this court upon appeal. It was then against the water hoard of the city of Poughkeepsie, which board, under the then existing law, was the proper party defendant. At the Circuit it was held that a contract which specified that certain excavations should be made at certain' prices for rock excavations, and at certain prices for earth excavations, could not be varied by proof that, according to the custom and usage prevailing among contractors and builders, hard pan, was included in neither of these designations. This was held to he error under the concluding clause (paragraph s) of the agreement which provided that, for any work not classified or defined as to price, and which the contractors might be directed to do by the defendant’s engineer, in writing, should be paid for at the cost of the work ordered, with fifteen per cent added. This ruling must be accepted as final on this appeal. The defendant has been substituted according to existing law, and the case has been again tried.

The plaintiffs obtained a verdict, and the defendant appeals to this court.

The defendant interposes four defenses :

First. That.the contract was obtained by fraud practiced between the plaintiffs and the engineer of the water board.

Second. That the water board had no power to execute the contract and did not. in point of fact, execute it.

Third. That the work claimed had been paid for.

Fourth. That there was no such usage.

The first question is, was there a valid contract? This inquiry takes in the two first named defenses. The water board was created by chapter 333, of Laws of 1867. By section 6, subdivision 2, of that act, the water board could contract by publishing for proposals for the work for two weeks, and by giving the work to the lowest bidder. This board did publish the required time, and did issue proposals on which biddings could be made, and did, as part thereof, refer the bidders to a proposed contract. This contract did not contain the concluding clause (paragraph s). There were three bidders, Messrs. Leary & Co., the plaintiffs, and one Robert Nelson. Nelson’s bid ivas the lowest.

Evidence was given by the defendant tending to show that plaintiffs’ biddings were changed after the opening of the bids; that some items, not in the proposals, were added by plaintiffs and the engineer; that some were increased and some diminished; that some items were so stated in the form of proposals that no bidding could intelligibly be made; that the second and altered biddings were again changed by plaintiffs and the engineer, by adding work which the water board had expressly refused to award to plaintiffs, amounting to some thousands of dollars. The form of the contract itself was altered so as to require the plaintiffs to keep the work in good order for five months instead of six, as called for by the proposed contract, and paragraph s was added under which the claim in question is made.

It was competent for the jury, under this evidence, to find that the contract was obtained by fraud. The engineer reported to the board that the plaintiffs’ proposal was the lowest bidding.. If it was true that he had, in collusion with the plaintiffs, so framed the contract and proposal as to deter bidding; if he, with like collusion, had changed the plaintiffs’ bidding so as to make it appear the lowest, while in fact it was not so ; if he, until like collusion, had altered the proposed contract so as to benefit the plaintiffs after the biddings had been received, and had added paragraph s without the knowledge of the water board, it was a good defense.

The water board proposed a contract to the bidders. The proposal for bids, the proposed contract, and the bidding under it accepted by the water board, made the contract. If there was a dispute as to the facts about paragraph s being added, it should have gone to the jury under proper instructions. The court disposed of these two defenses in a single sentence, so far as the jury were concerned.

“Now I charge;you, in that respect,'the law to be this : If the commissioners have' substantially complied with the law, and have made this contract in good faith with these plaintiffs, the defendant is bound'thereby, and the liability of the defendant is established upon this contract.”

It was not claimed that the water commissioners had acted in bad faith. The charge of fraud was made against the plaintiffs and the engineer, and that the water board was deceived thereby in awarding the contract to plaintiffs. '

“ If,” says the court, “ on the other hand, the plaintiffs were guilty of no fraudulent practices in dealing with the commissioners, if the changes were made in good faith, then you have nothing under that head [fraud] to consider.”

“If there be no contract the plaintiffs may recover upon quantum meruit / a valid existing contract governs all parties.”

“ And therefore the plaintiffs can hold the commissioners to the performance of the contract, and the plaintiffs, on the trial, say that they relied upon this contract; and even if it be invalid or informal the plaintiffs claim to recover for these services, and the law says they may.”

There is no authority given, and the board possessed no power to authorize or add paragraph s. The biddings were called for under a proposed contract, adopted by the board, which did not contain this provision.

The object of the law is plain : bidders were invited to compete with each other on equal terms.

The other bidders had no notice of this paragraph s. With it the plaintiffs are clearly not the lowest bidders. An item of nearly §15,000 is added to the contract. ch no public biddings. The added clause is of evil effect, am. ,vas not authorized by the law. (Bonesteel v. The Mayor, 22 N. Y., 162; Brady v. The Mayor, 20 id., 312.)

The added clause was never adopted by the board beyond the signature of its officers.

I think the judgment should be reversed.

Talcott and Pratt, JJ., concur.

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


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    LYDIA A. MARCUS, Plaintiff, v. THE SAINT LOUIS MUTUAL LIFE INSURANCE COMPANY, Defendant.

      Policy of insurance — assignment of.

    When a policy of insurance, payable to the assured “ or his assigns,” contains a clause providing that it can be assigned only upon the written approval of the company, it is an agreement on the part of the company to pay the amount of the policy to the assured, or to such person as shall, with its consent, become the assignee thereof. Without such consent an assignment is of no effect as regards the insurance company.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after an order dismissing the plaintiff’s complaint, in an action on a policy of insurance, brought by the wife, the alleged assignee of the assured.

      B. F. Mudgett, for the plaintiff.

      James Emott, for the respondent.
   Barnard, P. J.:

This was an action upon a policy on the life of William N. Marcus. The policy provided as follows: “This policy can be assigned only upon the written approval of the company.” The only proof of plaintiff’s title was the following testimony : James A. Rhodes, a witness for plaintiff', stated that “ Mr. Marcus came n and told me to get a policy to suit the Manhattan Oil Company in another company, and gave me this one for his wife. Said I, ‘ you need the usual power of transfer.’ He had to write his application to another company, and that took him some little time, and I told him he ought to have a written power of transfer on this one, to his wife, and he said he would come in and do it, and I never saw him again.” A Mr. Stephens who .was present at this same occurrence stated it as follows : He came in, bringing the policy with him, stating that the Manhattan Oil Company refused to take this policy, and he handed it to Mr. Rhodes and asked him if he would keep that policy for his wife. He was in a hurry then and left the office, and Mr. Rhodes took it.”

This is all the evidence on this subject, and I think it falls short of showing plaintiff’s title. The transfer needed the consent of the company, and on Mr. Marcus being informed of that requirement, he promised to come in again and do it.

It would seem from this promise to come in again, and complete the transaction at a future time, that the transfer was not complete as between the assured and the plaintiff, but the absence of the consent of the company rendered a transfer of no effect, if one were made. The policy is made payable to “Wm. N. Marcus, or his assigns.” The use of the word “ assigns ” should have no such effect given it as to destroy the right of the company to consent to any assignment, according to the terms of the policy.

I take the use of the word “ assigns ” to mean no more than this : We will pay the amount of the policy to the assured, or to such person or persons as shall, with our assent, become the assignee thereof.

We think the ruling at the Circuit to be right, and that the exception of plaintiff be overruled, and the complaint dismissed with costs.

Talcott, J., concurs. Pratt, J., not sitting.

Exceptions overruled and judgment for defendant on nonsuit at Circuit.


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    MARTIN DE LANEY and JOHN B. SKENYON, Respondents, v. DAVID BLIZZARD, Appellant

      Public nuisance — action for removal of — who may maintain — effect of long continuance of.

    No definite amount of damage is necessary to authorize a person to maintain an. action to abate a public nuisance ; if he sustain any special damage it is enough.
    Such action may be maintained by one having only a leasehold interest in the premises, injuriously affected by the nuisance.
    No length of time will legalize an unauthorized obstruction in a navigable stream.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a juryj
    The action was brought to enjoin the defendant from maintaining a permanent float in front of plaintiffs’ premises, which border on a bay in Long Island Sound.

      Field & Deyo, for the appellant.

      J. O. Dyhman, for the respondents.

      For appeal from an order in this case, sso post, p. 66.

   Barnard, P. J.:

The plaintiff has a leasehold interest in certain premises m Westchester county bounded upon a navigable stream.

In front of the plaintiff’s premises the defendant has anchored a large wooden float a few feet from the shore on plaintiff’s land, and has kept and maintained it there for twenty-seven years. The obstruction is permanent. It is used by defendant to fasten boats to, and it is approached by a platform from the highway which runs along plaintiff’s premises to the stream. This obstruction is found to be a public nuisance, and specially injurious to the plaintiff. In such ease it has always been held to be within the province of a court of equity to grant relief. The obstruction is a nuisance per se. (People v. Vanderbilt, 28 N. Y., 396; Hart v. Mayor of Albany, 9 Wend., 571.) It is necessarily, particularly injurious to plaintiff. It obstructs the free egress from plaintiff’s land to the public navigable highway and return therefrom. It is not necessary that the damage shall be considerable. If damage is caused specially to the plaintiff by the obstruction, no definite amount is requisite to sustain the action.

The plaintiff having only a leasehold interest in the adjoining land may maintain this action. (Knox v. The Mayor, 55 Barb., 404.)

No length of time will legalize an unauthorized obstruction in a navigable stream. (Dyger v. Schenck, 23 Wend., 446; People v. Cunningham, 1 Denio, 524; Renwick v. Morris, 7 Hill, 575.)

Judgment affirmed with costs.

Taloott and Pratt, J J., concur. •

Judgment affirmed with costs.


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    EUGENE A. GROUX, Respondent, v. JOHN J. McCRUM, Appellant.

      Justice’s Court — appeal from •— costs.

    Plaintiff recovered a judgment in a Justice’s Court for $125. Defendant appealed to the County Court, assigning, as oue ground thereof, that the judgment should not have exceeded twenty-five dollars. No offer was made by the plaintiff. Upon the trial in the County Court he recovered á judgment of ninety-three dollars. Held, that the defendant was entitled to costs in the County Court.
    Appeal from a judgment in favor of the plaintiff) entered upon the report of a referee, in an action to recover for services rendered by the plaintiff as a physician to defendant, originating in the Justice’s Court of the city of Brooklyn.
    The notice of appeal to the County Court stated, among other things:
    First. That the justice erred in finding that the plaintiff rendered service for the defendant, in a sum exceeding in value the sum of twenty-five dollars.
    Second. The justice should have found and decided that full payment had been made for all services rendered by plaintiff for defendant, and the said justice erred in not so finding.

      Roger H. Lyon and R. L. Scott, for the appellant.
    If the notice of appeal fairly apprises the respondent that the damages are excessive, it is enough to put him to his offer; and where one good ground is stated in the notice of appeal, it is sufficient to govern costs, irrespective of other grounds stated. ( Younghause v. Fingar, 47 N. Y., 99; 63 Bai-b., 299; Bixby v. Worden, 46 How. Pr., 239 ; Myers v. White, 37 id., 393; Fox v. Nellis, 25 id., 144; Loomis v. Higbee, 29 id., 232; Reed v. Moore, 31 id., 264; Fults v. Wynn, 2 Bans., 153.)

      H. W. Isaacson and H. B. Davis, for the respondent.
    The first clause in appellant’s notice says that the j ustice erred in finding that the plaintiff rendered service for the defendant, in a sum exceeding in- value the sum of twenty-five dollars. He does not say that the justice erred in rendering judgment for a sum exceeding twenty-five dollars, or that the judgment should not have been for a sum exceeding twenty-five dollars, and in this respect the notice of appeal is clearly insufficient. (Code, § 371; Gray v. Hannah, 1 Abb. [N. S.], 45; Hotchkiss v. Banks, 36 How. Pr., 61; Loveland v. Atwood, 31 id., 467; Wadley v. Davis, 43 id., 82; Putnam v. Heath, 41 id., 262; Wyncoop v. Halbert, 43 Barb., 266.) If the notice of appeal had stated that the justice erred in rendering judgment for the plaintiff' for a sum exceeding twenty-five dollars, it would still have been insufficient, because it did not specify any sum for which judgment should have been rendered; but the notice does not go even that far, but, on the contrary, says, in effect, that judgment should not have been rendered for any sum whatever. (Code, § 371; Hotchkiss v. Banks, 36 How., 61; Loveland v. Atwood, 31 id., 467; Gray v. Hannah, 1 Abb. [N. S.], 45; Wyncoop v. Halbert, 43 Barb., 266; Moran v. McClearns, 43 How., 77; Calverts v. Hall, id., 80; Wadley v. Davis, id., 82; Putnam v. Heath, 41 id., 262; Barnard v. Pierce, 28 id., 232; Forsyth v. Ferguson, 27 id., 67.)
   Barnard, P. J.:

The plaintiff brought an action against the defendant in a Justice’s Court, to recover compensation for his services as a physician, rendered the defendant. The defendant denied the claim and pleaded payment. The plaintiff recovered a judgment for $125, besides costs, and the defendant appealed to the County Court. The action was retried there and resulted in a judgment for the plaintiff for ninety-three dollars.

The defendant, in his notice of appeal, stated the following grounds of appeal:

First. That the justice erred in finding that the plaintiff rendered services for the defendant in a sum exceeding in value the sum of twenty-five dollars.

Second. The justice should have found and decided that full payment had been made for all services rendered by plaintiff for defendant; and the said justice erred in not so finding.

Third. That said judgment is contrary to law and evidence.

Fourth. Judgment should have been for defendant, with costs, instead of for plaintiff.

The question is presented as to which party is entitled to costs. The appellant’s right to costs depends upon his notice of appeal. He must state in his notice in what particular or particulars he claims the judgment should have been more favorable to him. If he does so state, and no offer is made by respondent to correct the judgment in any of the particulars mentioned in the notice of appeal, and the appellant recovers a more favorable judgment, to the amount of at least ten dollars, he shall recover costs. (Code, § 371.) The notice of appeal seems to come within the principle laid down by the Court of Appeals in Younghause v. Fingar (47 N. Y., 99). In that case the notice claimed a.more favorable judgment in this particular, that it should not have been for more than, twenty-five dollars damages. In this case the first particular ground of appeal is that the justice erred in finding a sum exceeding twenty-five dollars. This means the judgment is far too much, and should only have been for twenty-five dollars. This threw upon respondent the necessity of making an offer to correct the judgment in the amount, or to be liable to pay costs if the judgment was reduced ten dollars. No offer was made and the judgment was so reduced. The appellant was entitled to costs in the County Court. Order reversed, with ten dollars costs, besides disbursements.

Talcott, J., concurs.

Order allowing costs to plaintiff reversed, and co.sts allowed to defendant, with costs and disbursements.


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    CATHERINE GRAHAM, JOHN GRAHAM and ROSANNA GLACKEN, Respondents v. MARY C. LIVINGSTON, Executrix, JOHN TOMFORD and HENRY TOMFORD Appellants.

      Will — conversion of real inJo personal estate — discretion given to executors.

    Ail intention on tlie part of a testator; to llave Ms real estate converted into personalty, or treated as such, is not rendered less imperative, nor will the real estate fail to he regarded as personalty, by reason of his giving to his executors a discretion, as to the time, manner and terms of sale.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought by the heirs at law of John Graham, who died July 9, 1854, for the purpose of setting aside a .foreclosure, of a mortgage made by him, on premises in the city of Brooklyn, on the ground that the summons in the foreclosure suit was not served upon his heirs at law but only upon his executors. The second clause of his will was as follows:
    Second. All my estate, both real and personal, I do hereby give and devise to my executors hereinafter named, and to the survivor or survivors of them, to have and to hold the same and every part and parcel thereof, to them and to the survivor or survivors of them, in fee simple, absolute,, in trust; nevertheless, at such time or times, and whenever my said executors, or a majority of them, shall deem it fit or proper, to sell at public or private sale all or any part of my estate, upon such terms and conditions as they, or a majority of them, may deem proper or fit, and to execute to the purchaser or purchasers thereof good and proper deed, deeds, or other instruments in fee simple absolute, and to receive from such purchaser or purchasers the consideration money for such purchase or purchases, and to take securities for the amount of the sale or sales so made by them. And upon this further trust, to pay and apply the said purchase-money to my wife, during the time she shall remain my widow, hut no longer, for the support of herself and any children of mine bom or who may be born in lawful wedlock. And upon this further trust, after the death or marriage of my said wife, to divide any residue left of my estate to and among my children, share and share alike, and to and among any heirs of any of my children who may be deceased at the time of the death' of my said wife, so that the heirs of such children shall receive the share or portion that would have come to the deceased parent if living.
    It was decided at the Special Term that the legal effect of this clause was only to create a power in trust in the executors; that the real estate descended to the 'plaintiffs subject to the power; that they were necessary parties to the foreclosure, and that not having been made parties, their rights and interests were not affected by it.

      Elial F. Hall, for appellant Livingston.

      Clement & Crook,e, for appellants Tomford.

      JD. P. Barnard, for the respondents.
    There was no conversion of the real estate into personalty in this case. An action for relief, not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued. But section 101 says: “If a person entitled to bring an action mentioned in the last chapter (section 97 is in the last chapter), * * * be at the time the cause of action accrued, either one within the age of twenty-one years.” The time of such disability is not a part of the time limited for the commencement of the action. In this action one of the plaintiffs, at the time of the commencement of this action, was within the age of twenty-one years, and still is, and was when the cause of action accrued. This being a bill to redeem, it was necessary that all the plaintiffs should bring the action. {Harris v. Clark,, 3 Seld., 212; Allen v. Dewitt, 3 Comst., 276; Hallr. McLau,ghlen,%ld\,&&., 107; Germand,v. Jones, 2Hill, 569; Stenieher v. Dichinspn, 9 Barb., 576; Slocum v. Slocum, 1 Edw., 613; Wright v. Trustees of Methodist Episcopal Church, 1 Hoff., 202 ; Nodine v. Greenfield, 7 Paige, 551; Cation v. Taylor, 12 Barb., 578; Brownson v. Gifford, 8 How. P. B., 389; Boynton v. Hoyt, 1 Den., 53; Reid v. Underhill, 12 Barb., 113; Jacksonr. Schauber
      7 Cow., 187; Jaohson v. Potter, 4 Wend., 672; In re Fox's Will, 52 N. Y., 537.)
   Barnard, P. J.:

The devise to the executors in trust conveyed to them no estate in the lauds, for the reason that no power is given them by the will to recover the rents and profits. (2 R. S. [5th ed.], 20, § 75 [old § 56].) I think, however, by the will itself, the real estate in question was equitably converted into personalty at the death of the testator. The real and personal estate combined is given the executor in trust, “at such time or times, and whenever my said executors, or a majority of them, shall deem it fit and proper to sell, at public or private sale, all or any part of my estate upon such terms and conditions as they, or a majority of them, may deem proper and fit, and to execute to the purchaser or purchasers thereof good and proper deed or deeds, or other instruments in fee simple absolute, and to receive from such purchaser or purchasers the consideration 'money of such purchases or purchase, and to take security for the amount of the sale or sales so made by them ; and upon the further trust, to pay the said purchase money to my wife during the time she shall remain my widow, but no longer, for the support of herself and any children of mine born or who may be born in lawful wedlock; and upon the further trust, after the death of or marriage of my said wife, to divide any residue left of my estate to and among my children, share and share alike, and to and among any heirs of any of my children who may be deceased at the time of the death of my said wife, so that the heirs of such child -shall receive the share or portion.that would have come to the deceased parent if living.”

By a subsequent clause of the will the provision thus made is “in lien and bar” of dower. It was absolutely the intention of the testator to “out and out” convert all the real estate into personalty, and that the proceeds of such real estate should be made into one fund with the personalty. The plaintiff claims, however, that the testator did not absolutely direct the sale, but left it to the discretion of the executors whether to sell or not. In such case it is clear that the doctrine of equitable conversion does not apply.

As I read this will the testator has unconditionally directed the sale, leaving the time, the manner and the terms of sale to the discretion of the executors. ,

No other provision is made for the support of his family but from the entire fund, made up of real and personal estate. It could not have been the intention of the testator to leave it in the power of the executors, by a refusal to sell the land, to prevent the formation of the fund out of which his family were to be supported. The application of the entire fund derived from real and personal estate is to be made, and not solely of the interest or proceeds thereof. Until a sale of the land therefor, the first step toward the execution of the will is not taken. The failure to give to the -executors power to receive rents and profits of the land favors this view. It was turned into personalty and treated as personalty in the will. It was not intended that it should remain laud. The distribution after his wife’s death is of “any residue left.”

It being the intention of the testator to have a sale made of his lauds, and that the proceeds be turned into personalty. This will does not, in this respect, become inoperative by giving his executors a discretion as to the time, manner and terms of sale.

In Phelps v. Pond (23 N. Y., 69), the power to sell was “ either at public or private sale, and upon such terms as they (the executors) might think conducive to the interests of my estate.” It was held that the real estate was converted into personalty “upon the established principles of equitable conversion.”

In Stagg v. Jackson (1 Comst., 206), power was given to sell “ whenever they (the executors) should see fit,” the court say : The intent and direction of the testator to sell the land was absolute or “ out and out ” for all purposes.

The discretion of the executors, in respect to the sale, related merely to the time when, etc., citing many authorities.

Under these cases the direction wa,s absolute, and the performance of the duty could have been enforced. (2 R. S. [2d ed.], 734, § 96.)

My conclusion is that the children of the deceased had no legal title to the land, and that the judgment is erroneous and should be reversed.

Talcott and Pratt, JJ., concur.

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


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    EDWARD J. WILSON, Respondent, v. FRANCIS M. RANDALL, Appellant.

      Sale of land by acre — mistake in survey — action to recover money paid for.

    Tie plaintiff agreed to purchase of the defendant certain land, supposed to contain fifty-four fifteen one-hundredths acres, at $350 per acre. Subsequently, and before the delivery of the deed, defendant caused the land to be surveyed and found that it contained fifty-six fifteen one-hundredths acres, for which number of acres the plaintiff paid the agreed price. Subsequently it appeared, from a survey, made by the plaintiff, that the farm only contained forty-eight forty-seven one-hundredths acres. Held, that the plaintiff was entitled to recover the difference between what he actually paid, and what he should have paid for forty-eight forty-seven one-hundredths acres, at $350 per acre.

      Held, further, that it was competent to prove what transpiredi between the parties, prior to the execution and delivery of the deed.
    Appeal from a judgment, in favor of the plaintiff, entered upon tlie trial of this action by the court, without a jury.

      Marshall c6 Verplanclc, for the appellant.

      Michael Nolan, for the respondent.
   Barnard, P. J.:

The plaintiff agreed to buy of the defendant, a piece of land in Westchester county, described by metes and bounds in the written contract, and stated therein as, “ containing fifty-four and fifteen' one-hundredths acres of land, be the same more or less, for the sum of $350, per acre.” Before the deed was given therefor, the defendant stated to plaintiff that there was, by accurate measurement, two acres more. Plaintiff took the deed for the land and paid for fifty-six acres and fifteen one-hundredths of an acre at $350 per acre. It is now established that there were but forty-eight acres, and forty-seven one-hundredths of an acre. As to the two acres paid for beyond the quantity stated in the contract, there is a clear case proven, where $700 has been paid under a mutual mistake of facts. The plaintiff however claims to recover $2,688, being for the excess paid by him for the 'land beyond the real quantity at '$350 per acre. On the trial it was proven that the land was sold by the acre; that a survey was made before the contract was signed, and by mistake was made to contain fifty-four and fifteen one-hundredths acres. This quantity was put in the contract. The defendant caused a new survey to be made after the contract was signed and before the deed, and found it to contain two acres more. The deed was given for this quantity and payment made for this quantity. The real quantity was forty-eight and forty-seven one-hundredths acres. The plaintiff had judgment for the whole sum. Two objections are urged on appeal. First, that the evidence of what happened before the contract was inadmissible; and second, that the complaint does not aver a mistake and the evidence was therefore inadmissible.

As to thelast objection, the complaint states that the land was sold by the acre and so bought. That both parties believed the land to contain fifty-six and fifteen one-hundredths acres, and that under this mistaken belief one party paid and the other received $2,688, over and above the proper amount. These averments seem to be sufficient. I think the evidence of the transaction was admissible. It was admissible to show the surrounding circumstances and thus furnish evidence on which to construe the contract.

Similar evidence was introduced to show fraud in an executed contract in Belknap v. Bealey (14 N. Y., 143). The court found no fraud, but did find mistake and gave relief. The Court of Appeals upheld the judgment. In this case the court cite with approval, a case where relief was granted for a mistake in an executed contract. (Thomas v. Perry, 1 Peters’ C. C., 49.)

I think the judgment should be affirmed, with costs.

Talcott and Pratt, JJ., concur.

Ordered accordingly.


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    THE PEOPLE ex rel. CHARLES C. WILLIS v. JAMES P. SMITH, OSCAR B. WILLIS and JOHN H. TREADWELL, Commissioners of Highways of the Town of North Hempstead, County of Queens and State of New York.

      Laying out of highways — notice to owners — recital in order — effect of.

    Commissioners of highways acquire no jurisdiction to make an order laying out a highway, until notice in writing has been given to the occupants of the lands-through which the road is to run, as required by section 77, article 4, part 1,. title 1, chapter 16 of the Revised Statutes.
    The order contained the following recital: “and notice in writing of at least three days having been given in form of law ” to the occupants of the lands through which the highway was to run. Held, that this recital was not proof of the facts therein stated.
    Certiorari to review the proceedings of the commissioners of highways of the town of North Hempstead, in laying out, straightening and widening a highway in said town.

      Mias J. Beach, for the relator.

      Wm. II. OnderdonJc, for the respondents.
   Barnard, P. J.:

The commissioners never acquired jurisdiction to make the order laying out the road in question. By statute, before they could lay out such highway, after it was certified to by the jury, they must have given three days’ notice in writing to the occupants of the land through which the road is run, of the time and place at which they would meet to decide on the application. (§ 77, art. 4, part 1, title 1, chap. 16, R. S.)

The only proof of the service of this notice is a recital in the order of the commissi on ers laying out the road, as follows : “ and notice in writing of at least three days having been given in form of law,” to * * * occupants of the land through which said highways are to run. This recital is not proof of the fact stated.

The writ of certiorari was granted for this omission, among others, on the sworn statement of one of the occupants, that he was not served with such, notice, and he is one of the persons stated in the recital to have been served. The omission to give the notice was fatal. (People v. Supervisors of Allegany, 36 How., 547; People v. Robertson, 17 id., 75; People v. Judges of Herkimer, 20 Wend., 186.)

This conclusion renders unnecessary the consideration of the other points presented.

Proceedings reversed, with costs.

Present — Barnard, P. J., Talcott and Pratt, JJ.

Proceedings of commissioners of highways reversed, with costs.


author: Barnard, P. J.: Pratt, J.:

text:
    ELICETT SOUTHARD, Respondent, v. ANDREW PHILIPS, Appellant.

      Justice's Court— appeal from — Beturn — payment of fees for— Code, § 353.
    'Upon appeal from a judgment rendered in a Justice’s Court, the payment of the fees for making a return is jurisdictional, and without it no appeal can he perfected.
    Appeal from an order of the County Court of Suffolk county, dismissing an appeal from a judgment in favor of the plaintiff, .rendered in a Justice’s Court.

      George Miller, for the appellant.

      T. M. Griffing, for the respondent.
   Barnard, P. J.:

This appeal seems to have been brought under a mistake of law. The appellant claims to reverse the order dismissing an appeal conditionally, for the reason that the appellant had thirty days in which to appeal from a justice’s judgment.

By section 353, Code, the time to bring such appeal is limited tc twenty days.

The judgment was obtained before the justice on 1st August. 1873. On the sixteenth of August notice of appeal was served on the justice, and no eosts or fee for making a return was paid him. On the 22d of August, 1813, the justice made an affidavit, that no costs or fee for return was paid, and on this affidavit the plaintiff made a motion before the County Court of Suffolk county to dismiss the appeal. The defendant produced an affidavit of a Mr. Benson that he, during the twenty days after the judgment was rendered, offered to pay the amount of the justice’s “ fees and costs, in this action ” oh receiving the items, and that the justice promised to send them, which he failed to do. No mention was made of the fee for making return. The County Court on these papers made an order that the appeal be dismissed unless the return be filed in ten days, and from the order the defendant appeals to this court.

There was no appeal. The payment of the fee for making the return is jurisdictional; without it the appeal was not perfected. This has been repeatedly held in this court. The County Court should have dismissed the appeal absolutely.

The order appealed, from should bo affirmed with costs and disbursements. ‘

Pratt, J.:

The time for appealing from a judgment rendered by a justice of the peace, is limited to twenty days after the rendition of the judgment. (Code, § 353.)

In order to perfect the appeal, it is necessary, not only, that the notice be served on the justice and on the adverse party, but also that the costs, and the fee of two dollars for making a return, be paid to the justice at the time of the service of the notice of the appeal on him. (Sec. 351.)

The appellant confessedly failed to comply strictly with the requirements of the statute. Instead of paying or tendering to the justice the costs and fees, he chose to wait for the justice to send a statement of the amount required, and payment was not actually made until long after' notice of the motion to dismiss the appeal was served.

It has been held that service of the notice of appeal gives the appellate court jurisdiction of the case, but the omission to pay the costs and fees at the time of service of the notice, is good ground for dismissing tbe appeal. (Van Heusen v. Kirkpatrick, 5 How. Pr., 422.)

The county judge followed the practice adopted by Mr. Justice Harris in the case above cited, and granted an order dismissing the appeal, unless the appellant should cause the proper return to be filed within ten days, and pay costs of the motion. The order certainly does the appellant no injustice; it gave him a favor to which he was not strictly entitled. It is always hazardous to substitute something else for a strict compliance with the plain provisions of a statute; and when a party does it he must abide by the consequences.

The point made by the appellant, that the motion was premature, is based on the erroneous assumption that the term limited for perfecting the appeal is thirty instead of twenty days.

The order appealed from should be affirmed with costs.

Tatcott, J., concurs in opinion of Barnard, P. J.

Judgment of County Court affirmed, with costs.


author: Barnard, P. J. Pratt, J.

text:
    NORMAN ANDREWS and others, Executors of JAMES M. WATERBURY, Deceased, Respondents, v. THE NATIONAL BANK OF NORTH AMERICA OF NEW YORK, Appellant.

      Oode, § 399 — assignee.

    Y., 'defendant’s president, purchased certain shares of Gregory mining stock through B., one of defendant’s clerks, to whom a loan for its price was made by the defendant, and the stock taken as collateral. Subsequently B. loaned to Y. 410 shares of Mariposa stock, to enable.him to meet the examination of the affairs of the bank, by the board of directors. Y. delivered both the Gregory and Mariposa shares to the bank, as collateral to the loan to B., and the same were subsequently retained by the defendant. In this action, brought to recover the Mariposa shares on the ground that they belonged to plaintiff's testator, and had been placed by him in B.’s hands, B. was allowed to testify against the defendant. Held, that this was error, under section 399 of the Oode; that B. was interested in the action, as a judgment against the defend, ant would relieve him from liability for converting the plaintiff’s testator’s stock, and that the defendant was an assignee of Y.

      Appeal from a judgment in favor of the plaintiff entered upon the report of a referee, in an action for the conversion by defendant of 400 shares of Mariposa Company stock, the property of James M. "Waterbury.

      ELihu Root, for the appellant.

      8. P. Wash and James Maurice, for the respondents.
   Barnard, P. J.

On the 23d of January, 1867, John O. Yelverton died. lie was, at the time of his death, president of defendant’s banking corporation, and had so been president for over a year previous to his death. A Mr. Bockee had been for many years a clerk in the bank, but had entered into business on his own account about the 1st of December, 1866, and had left the employment of the bank. In the latter part of July, 1866, Bockee, apparently, made a loan of the bank of $10,400, payable on call. There was held, as collateral to the loan, 550 shares of consolidated Gregory mining stock. This stock was, in fact, purchased by Bockee for Yelverton, aud was paid for by the proceeds of this call loan, in Bockee’s name, the credit being given Bockee by the president to pay for the president’s stock. About the middle of December, 1866, Bockee loaned the stock in question, 400 shares of Mariposa stock, to Yelverton, to enable him to tide over the semi-annual examination of the bank. Yelverton, on the examination, exhibited and delivered to the committee the Gregory and Mariposa stock as being held by the bank as collateral security for the Bockee loan. The bank so held the stock, both Gregory and Mariposa, until after Yelverton’s death. It is now claimed that the Mariposa stock belonged to plaintiffs’ testator. Bockee is admitted as a witness for plaintiffs to testify as to the transaction with Yelverton, under defendant’s objection and exception. The Code, which swept away all the rules of evidence which prevented witnesses from testifying by reason of their interest in the event of the action, introduced a new rule by section 399. By this section no person, interested in the event of an action, can be a witness in regard to any personal transaction or communication between such witness and a person dead, against the assignee of such dead person. Bockee was interested in the event. He had converted, on his own testimony, the stock in question. A judgment against the defendant directly relieves him from liability foi snob conversion. .

The defendant was Yelverton’s assignee. The certificates of the stock in question had an assignment in blank upon them, and the stock was thus transferable by delivery. The name of the plaintiff’s testator did not appear in the certificates. The stock was loaned by Bockee to Yelverton individually, to be used for his own benefit. If the bank had any right to the stock it came from Yelverton. “ The idea of an assignment is essentially that of a transfer by one existing party to another existing party of some species of property or valuable interest.” (Hight v. Sackett, 34 N. Y., 447.) The word assignee is held to include a grantee. (Mattoon v. Young, 45 N. Y., 696.) The spirit of the section is broken by permitting Bockee to be heard as to the transaction, when the other party to it, Yelverton, cannot contradict him. An apparent loan to Bockee by defendant, with collateral security given for it, is destroyed, and a deceased person is made the principal debtor. One of the items of the collateral is given as delusive security after the loan had stood some months, and then the security was loaned by Bockee to Yelverton, when it belonged to another party and so known to be owned, by Yelverton when he borrowed it for the purpose named. I think Bockee was improperly admitted as a witness, and that the judgment should be reversed and a new trial granted, costs to abide event.

Pratt, J.

(dissenting):

The bank cannot be considered the assignee of Yelverton. He never had or claimed to have any interest in the stock.

He never undertook to pass any title thereto to defendants.

Section 399 of Code, therefore, does not apply.

The other ¡joints are sufficiently considered in the opinion of the referee.

Judgment affirmed.

Present — Barnard, P. J., Talcott and Pratt, JJ.

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


author: Barnard, P. J.: Talcott, J.:

text:
    In the Matter of the Petition of THOMAS F. MASON and others, Respondents, v. DIEDRICH WILLERS, Jr., Secretary or State, Appellant.

      Mandamus — motion for, where tote made — 812.8. (5th ed.), 898, § 16 — Oode, § 471.
    A motion for a mandamus to compel tlie Secretary of State to file a certificate of incorporation can only be made in the third judicial district, or in a county adjoining thereto.

      People ex rel. Dagger v. Supervisors (2 Abb. [ET. S.], 78), followed.
    Section 471 of the Code does not authorize a motion for a mandamus to be made in any different place, from that designated for motions in other cases.
    Appeal from an order made at Special Term, in the county of Kings, directing the issuing of a peremptory mandamus to the Secretary of State, requiring him to file in his office a certain certifi cate whereby the petitioners proposed to create a corporation.

      Daniel Pratt, attorney general, and Peter JB. Olney, for the appellant.

      Robert Sewell, for the respondents.
   Barnard, P. J.:

The motion for a mandamus against the Secretary of State was made on the petition and notice to defendant of its presentation in the county of Kings. If an issue should be found in proceedings for mandamus, the same would be triable in the county of Albany. (3 R. S. [5th ed.], 898, § 16.) In a similar case the General Term of the third district decided that the motion could not be made, except in the district in which the issue would be triable, or in a county adjoining the county in which it was triable, according to section 401 Code, subdivision 4. (2 Abb. [N. S.], 78.)

It is argued by the respondent in this case, that that case is not binding, because the court overlooked section 471 of the Oode. By that section it is ‘provided that the second part of the Oode (in which section 401 is contained) shall not affect proceedings for mandamus. I do not think this section was designed to authorize a different place for a motion for a mandamus on notice, than from that designated for motions in other cases.

There is no reason to suppose that the General Term of the third district overlooked this section.

Talcott, J.:

This is an appeal from an order made at a Special Term, in the county of Kings, directing the issue of a peremptory mandamus to the Secretary of State, requiring him to file in his office at Albany a certain certificate whereby the petitioners propose to create a certain corporation. The attorney-general appeals from the order, and takes the preliminary objection that the motion cannot be made in Kings county, but should have been made in the county of Albany. The office of the Secretary of State is by law located in the city of Albany, and the ground of this proceeding is an alleged failure and refusal of the Secretary of State to file a paper in his office which was tendered and offered to him there. The precise point as to where this motion should be made is ruled against the petitioners by the General Term of the third district, in the case of Cagger v. the Supervisors of Schuyler county (2 Abb. [N. S.], 78). So far as we understand, that decision has been acquiesced in, at least generally. In view of the great inconvenience and detriment to the public business which must result if motions of this character can be made in any one of the numerous Special Terms of the State, and public officers be compelled to justify their official acts, at all times, away from the neighborhood of their offices and their books and papers, we áre disposed, without going in derail over the reasoning by which the General Term of third district reached the conclusion, to adhere to the decision referred to until it shall have been reviewed by some higher authority.

Order reversed with costs and disbursements of appeal.

Present •— Barnard, P. J., and Talcott, J. Pratt, J., not sitting

Order reversed, with costs and disbursements.


text:
    ORSON J. FERGUSON, Appellant, v. STEPHEN H. CRAWFORD and others, Respondents.

      Unauthorised aqypeamnae —forged notice of— effect of.

    An appearance by an attorney, without authority so to do, gives jurisdiction to the court in which the action is pending, and the subsequent proceedings therein cannot be attacked in a collateral proceeding, on the ground that suck appearance was unauthorized or forged.
    Appeal from a judgment in favor of the defendants, in an action brought for the foreclosure of a mortgage on premises on which a first mortgage had been foreclosed, in an action in which the present plaintiff appeared by attorney. Plaintiff offered to show that the notice of appearance was a forgery; the evidence was excluded.

      Wm. F. Purdy, for the appellant.

      J. O. Dylcman, for the respondents.
   Barnard, P. J.:

This appeal presents a question which has been the occasion of long and serious disagreement between judges. The plaintiff seeks to foreclose a second mortgage on a piece of property situated in Westchester county. The defense is, that there was a prior mortgage on the same premises which, many years ago, was foreclosed ; that defendant was a party in the foreclosure suit, and that the defendant Purdy, who is now the owner, became such through the purchaser at the foreclosure sale, who was a stranger to the title. The plaintiff (then defendant) appeared in the action for the foreclosure by John N. Mills. The plaintiff offers to prove, in this action, that Mills had no authority from him, and did not, in fact, appear, but his notice of appearance was a forgery. An appearance, without authority, has been held, in this State, to give jurisdiction, and could not be attacked collaterally. (Brown v. Nichols, 42 N. Y., 26; Denton v. Noyes, 6 Johns., 296.)

In Brown v. Nichols, the court says : “ I think a party should always seek relief for an unauthorized appearance, in the suit in which it has been put in, when the rights and equities of all parties can best be protected;” also, “ if a party will omit to apply to the court for relief, lie should not be-allowed to attack proceedings collaterally upon such ground.” The rule rests upon grounds of public policy, and not wholly upon the law of agency. The judgment in the foreclosure action was ordered by the court, on certain evidence of service on the several defendants. A formal appearance and Waiver of objection is annexed to the roll signed by a respectable attorney of the court. The plaintiff says it is forged. That is not an issue to be tendered to a Iona fide purchaser at a foreclosure sale, in a collateral action. In the foreclosure action all the parties can be protected. I do not see that the question of the forgery of the notice of appearance takes the case out of the rule laid down by the Court of Appeals.

Judgment affirmed, with costs.

Taloott, J., concurs. Pratt, J., not sitting.

Ordered accordingly.


text:
    GEORGE A. STARKWEATHER and another, Appellants, v. DANIEL J. QUIGLEY and another, Respondents.

      Trespasses — 3 S. 8. (5th ed.), 624, § 4— Treble damages.

    Wliei'e in the complaint in an action of trespass, reference is made to section 4 of 3 Revised Statutes (5th ed.), 624, providing for the recovery of treble damages, such reference will not operate to destroy or prevent the maintenance of the action for a trespass, not of such a character as to authorize the assessment of treble damages. If not entitled to treble damages, the .plaintiff may recover single damages, if entitled thereto, by the evidence given upon the trial.
    Appeal from a judgment of the City Court of Brooklyn, in favor of the defendant, entered upon an order dismissing the plaintiff’s complaint.

      A. H. Dailey, for the appellants.

      Winchester Britton, for the respondents.
   Barnard, P. J.:

A Mr. Powell, as attorney for the owners, made a lease of certain premises in Brooklyn, for five years, from April 18, 1872, to one Patrick Hays. Hays associated himself with one Finnigan, and was in possession under the lease, carrying on the business of selling liquors. They conveyed the business, with the personal property used in the business, to a Mrs. Pudra, and she gave back to Hays and Finnigan a mortgage on the personal property to secure a part of the purchase-price, being for $900. This transaction took place on the 22d of January, 1873, and the mortgage was made payable on or before 22d of July, 1873. The mortgage in express terms conveyed “ the unexpired term of the lease of said premises this day assigned,” by Hays & Finnigan to Mrs. Pudra. Hays & Finnigan, it seems, assigned this mortgage to the plaintiff. The court rejected the assignment. Mrs. Pudra'sold the stock, and I suppose her right in the lease, to the defendant Gordon, subject to the mortgage.

Gordon, for purposes of his own, it does not distinctly appear for what reason, wished the mortgage foreclosed before it was due, and gave his consent thereto, and employed an auctioneer to make the sale. On the sale, the property was purchased by plaintiffs.

There appears to have been some negotiation between plaintiffs and Gordon, with a view to a sale by plaintiffs to Gordon, which failed in resulting in a sale. The plaintiffs then, with Gordon's consent, took possession of the property, including the possession of the premises. Gordon was left in charge of the property as plaintiffs’ agent. Gordon then attempted to sell to Quigley, the other defendant, and was told by plaintiffs of their interest in the property. The plaintiffs then dispossessed Gordon as agent, and locked up and bolted a,nd nailed the premises securely. This was on the 9th of March, 1873. On the 10th of March, 1873, Quigley is found in possession, asserts his title to it, and says that lie had been advised that plaintiffs’ action in regard to the mortgage had vitiated their claim, and that he had a good title, and had taken possession from Gordon. Gordon is proven to have entered on to the premises, “found the place open and walked in.”

The action is against Gordon and Quigley, and the court dismissed the complaint upon the ground that the action was for treble damages under the statute, and had not been proven.

I think the court erred in this decision. The plaintiffs owned the lease. It was of no consequence whether the title was acquired by an assignment contained in a personal mortgage or by an inde pendent instrument; it was assigned to plaintiffs’ assignor as security for a debt, and the debt was unpaid. What the terms of the assignment were does not appear, as it was rejected by the court and is not returned. Gordon, however, assented to the transfer and took possession under plaintiffs as their agent. Plaintiffs then had the title and possession under it, and securely locked the premises; Gordon unlawfully enters, and Quigley fakes immediate possession under Gordon. It was for the jury to say whether this was or was nota joint trespass; whether the entry was not made in fact by Gordon and Quigley, in furtherance of a common plan, and in the execution of a common purpose. In deciding the rights of the parties, when a nonsuit is ordered, one must assume those facts as true which a jury could find fairly under the evidence.

The complaint is for trespass on premises and for a tortious taking of personal property found therein. The reference in the complaint to the statute, which in certain cases warrants treble damages, can have no such effect as to destroy a trespass, not such as to permit the assessment of such damages. If not entitled to treble damages he may have single damages, if .entitled thereto, under the evidence. No action should be dismissed because the plaintiff claims too much. If the form of the action is right and covers the claim he is entitled to it.

I think the judgment should be reversed, and a new trial granted, costs to abide the event.

Pratt, J.:

The plaintiff, by the allegations of the complaint, and by direct references therein to the statute, brought the action under section 4, title 6, chapter 5 of part 3, Revised Statutes, giving treble damages for trespass on lands by forcible entry or detainer. But the evidence wholly failed to prove either an entry into or a holding out of possession, accompanied by that degree of force which is necessary to sustain the action under the section referred to. (See Willard v. Warren, 17 Wend., 257.)

The complaint was, therefore, properly dismissed, unless the plaintiffs, on abandoning the claim for treble damages (as they assumed to do), were entitled to have the action considered as foi trespass simply, and recover actual damages.

The first section of the same title provides for awarding treble damages in actions of trespass for cutting standing timber, which, however, is qualified by the second section, providing that when the trespass is casual and involuntary, or under a supposed rightful claim, only actual damages shall be recovered.

It is quite well settled .that in actions under the first section, a recovery may be had for a simple trespass, and judgment rendered for the actual damages, although the proof fails to sustain the allegation of the complaint as to the willful character of the trespass. (Sprague v. Irwin, 27 How. Pr., 51; Dubois v. Beaver, 25 N. Y., 123.)

It is said that the plaintiff may waive the claim for treble damages, and thereupon the reference to the statute is to be regarded as out of the case. (Dubois v. Beaver, supra, p. 125.)

No good reason is perceived for malting any distinction, in this respect, between actions brought under the first and those brought under the fourth section of the statute, all of which relate to trespasses on lands.

In the one class of cases the statute gives three-fold damages as a penalty for willful misconduct, and in the other class the same penalty for the exercise of that degree of force calculated to incite a breach of the peace.

The object of the reference in the complaint to the statute, is to apprise the defendant of the extent of the claim made against him. (Newcomb v. Butterfield, 8 Johns., 342.)

But why may not the plaintiff at the trial withdraw the statutory claim, and thus limit his recovery to the actual damages proven ? He could not be permitted to do so if the effect was to change the form of action. (Barnes v. Quigley, 59 N. Y., 265.) But such is not the effect.

The statute does not give the right of action under either section, but merely prescribes the damages to be awarded in actions of trespass in certain specified cases. It seems to have been settled practice in the cases referred to in the first section, to have the jury find as to the character of the trespass and assess single damages, and have the question of trebling the damages determined by the court, on motion. (Newcomb v. Butterfield, supra.)

The same practice is equally well adapted to trials under the fourth section. Under the Code, the court is bound to disregard a variance between the facts proved and the allegations of the pleading, unless there is an entire or substantial failure of proof. This can hardly be affirmed when, in an action for trespass, the proof only fails to sustain the allegation of the pleading, as to the degree of force with which the wrongful acts were accompanied.

The plaintiffs were entitled, under the complaint, to recover on making proof of a trespass on the locus in quo, although failing to prove the degree of force alleged. The evidence was certainly sufficient (though it may have been slight and inconclusive) to go to the jury, upon the question whether the defendant had not unlawfully entered upon the premises. Indeed, it does not seem to have been urged, on the motion for á dismissal of the complaint, that no actual entry had been proven. The position taken was, “ that no such forcible entry and detainer has been shown sufficient to maintain this action as matter of law.” And the decision of the court granting the motion was placed on the distinct ground that the plaintiffs’ “ right to recover rests entirely upon the point whether the entry was with force aud arms.”

The plaintiffs proved that they were put in possession of the premises by the sheriff, March 9, 1815, and that they securely fastened the same, and they gave evidence tending to show that the defendants subsequently entered into the premises withoi. license, and claimed the right to hold possession thereof. This proof, uncontradicted, entitled the plaintiffs to a recovery of at least nominal damages, and the complaint should not have been dismissed.

Judgment reversed and new trial ordered, costs to abide the event.

Present — Barnard, P. J., Talcott and Pratt, JJ.

Judgment of City Court of Brooklyn reversed and new tria, ordered, costs to abide event.


author: Pratt, J.:

text:
    ALBERT COLE, Respondent, v. ROBERT MALCOLM, Impleaded, Appellant.

      Fraudulent conveyance — rights of heirs of grantee —subrogation.

    One Crawford conyeyed-certain real estate to liis wife, with intent to defraud his creditors. Subsequently his wife died intestate, and the property descended to • her heirs, all of whom assigned their interest to one Malcolm. Subsequently one ■ of the creditors of Crawford recovered a judgment against him, and thereafter instituted an action in which the said conveyance was adjudged to be fraudulent as to him, and a sale of the property was directed. Thereafter Malcolm tendered the judgment creditor theamount due to him, and demanded an assignment of the judgment against Crawford, and upon his refusal to assign, he next applied for an order requiring him so to do, so that Malcolm might be subrogated to his rights. Held, that the application was properly refused; that the -wife took the property subject to the rights of the creditors, and that any one claiming under her must take the same rights she had and no more.
    Appeal from an order made at the Special Term, denying a motion made by the appellant, Malcolm.
    Prior to December, 1869, John Crawford,1 of the city of New York, was indebted to Albert Cole in the sura of $4,000 and upwards. He was then the owner of certain lots of land situated in Yonkers, in the county of Westchester. These lots, on December 7, 1869, he conveyed to his wife, Sarah E. Crawford, without consideration, and for the avowed purpose of securing the same to her and saving the same from the claims of all parties whomsoever, and for the purpose, also, of hindering, delaying and defrauding his creditors, he being at the time largely indebted and having no other real estate, and but little personal property, and such personal property being insufficient to pay his debts.
    Mrs. Crawford died, childless and. intestate, on the 7th day of August, 1870. The lots in question descended to her heirs at law, of whom the appellant, Robert Malcolm, her nephew’, was one. As such he was entitled to a one-fourteenth interest in the estate. Since then, and since the recovery of judgment in this action, he became the assignee of the interests of several of the other heirs of Mrs. Crawford.
    On the 11th day of November, 1870, Cole recovered judgment in this court against Crawford for the sum of $5,134.68, which was on that day docketed in the office of the clerk of the city and county of New York, and a transcript was filed in the office of the clerk of the county of Westchester. Execution was duly issued thereon and returned unsatisfied. Thereupon this action was brought by Cole against John Crawford and the heirs at law of his deceased wife, to set aside the conveyance of the said lots to Mrs. Crawford, as fraudulent, and on the 29th day of March, 1871, judgment was entered as prayed for in the plaintiff’s complaint.
    This judgment was affirmed by the General Term and again by the Commission of Appeal!.
    The plaintiff then advertised the lots for sale under the said judgment. Thereupon the defendant Malcolm made a tender to the plaintiff’ or his assignee, ITiram K. Miller, of the amount due on the judgment against Crawford, and demanded an assignment of the decree in this case, and also of the said judgment of November 11,1870. Miller offered to assign the decree, but not the judgment, against Crawford. Malcolm then made a motion that Miller be compelled to assign to him (Malcolm) “ the judgment herein,” and also “ the original judgment in the ease of Albert Cole against John Crawford,” and that he (Malcolm) “be subrogated to the rights of the plaintiff in this action.”
    The motion was denied, and from the order of denial Malcolm appealed.

      Hamilton Odell, for the respondent.

      John R. Dos Passos, for the appellant.
   Pratt, J.:

There is no merit in this application.

The conveyance by Crawford to his wife was without consideration, and fraudulent as against creditors.

In equity Crawford’s creditors had a right to be paid their claims out of the property so conveyed, and she took the title subject to such equity.

Any one claiming under her must take the same rights she had, and no more.

The appellant must be held to have made the payment voluntarily, as Ire was not compelled to pay in order to protect his rights.

He got all that Mrs. Crawford had at the time of her death, ndiieh consisted of the real estate conveyed to her by her husband, subject to the claims of creditors. The claims being put by a judgment in the form of an active lien upon the property, he is entitled to redeem the property, but it cannot be tolerated that because a specific gift from Crawford to his wife failed, that it shall be made good by Crawford, out of property subsequently acquired by him.

I cannot accede to the doctrine that the appellant stands in the position of a surety. He was in no manner bound to pay the debts of Crawford. Neither was Mrs. Crawford, under whom be claims, bound to pay. The fact that the conveyance from Crawford to his wife was valid, “inter partes” is not material. This proceeding is not based upon any covenant. .

That the gift from Crawford to his wife did not meet the expectations of her heirs is their misfortune. The defendant has lost nothing that he could rightfully claim.

The order should be affirmed, with costs.

Barnard, P. J., concurred.

Present — Barnard, P. J., Taloott and Pratt, JJ.

Order affirmed with costs.