author: Follett, J. Van Brunt, P. J. O'Brien, J.

text:
    Sarah Rainey, Adm'rx, Resp't, v. The New York Central & Hudson River Railroad Co., App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Negligence—Railboad—Violation of obdinance.
    Proof that a railroad company violated a city ordinance which required it to maintain gates at its crossings, does not, in an action for damages for the death of plaintiff’s intestate, establish a cause of action, but is evidence bearing upon the question of negligence.
    2. Same—Chabge.
    In such action it is error for the court to refuse to charge that if the fact was known to intestate» that the crossing gates were not operated after seven p. m., he was not entitled to rely, in approaching the track, for the purpose of crossing or attempting to cross, upon any protection from the gates, where no such instructions had been given in the general charge, and no allusion had been made by_ the court to the fact that the intestate had lived in the vicinity a long time and must have known within what hours the gates were operated.
    8. Same.
    In an action to recover damages for the death of plaintiff’s intestate "by the negligence of the defendant railroad company, it is error for the court to refuse to charge that, if the intestate, when "he stood at a point ten or fifteen^feet distant from the nearest rail, or at any point between that and the rail, and before he entered upon the track, could have seen the approaching train, the plaintiff cannot recover.
    4. Same—Conteibutoey.
    There was but one witness who testified to seeing the accident, and that the bell was not rung, and that he did not see or hear the train before it struck the deceased. His testimony as to his subsequent actions was incredible. There was evidence that, from where the witness or deceased stood, the train could lie seen for a long distance. Held, that the burden of showing a want of contributory negligence was not sustained.

      Appeal from a judgment entered, on a'Verdict, and from an order denying a motion for a new trial made on the minutes.
    Wales F. Severance, for resp't; D. W. Tears, for app'lt.
   Follett, J.

This action was to recover sustained by the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant’s employes in the management of a train when passing a highway crossing.

In the twenty-third or twenty-fourth" ward of the city of New York, the defendant’s railroad crosses at grade a highway known as the Spuyten Duyvil road, and the crossing is called the Spuyten Duyvil crossing. At this place the railroad consists of two tracks, of the gauge of four feet and seven-tenths of a foot. The two tracks are eight feet and one-tentli of a foot apart, making the distance between the outermost rails of the track seventeen feet and a half. The highway extends along the westerly side of the railroad for some considerable distance, then crosses it, and extends along the easterly side of the railroad. The next crossing towards New York city is Eiverdale avenue crossing, which is 1,470 feet northerly of Spuyten Duyvil crossing. The railroad above and below Spuyten Duyvil crossing is very crooked, so that trains bound for New York run nearly north for some little distance. It is asserted on the part of the plaintiff that her intestate, John H. Eainey, was struck at this crossing, between eight and nine o’clock in the evening of January 4, 1892, by a New York bound train. About nine o’clock of that evening he was found lying, with his skull fractured, about 150 feet north of the Spuyten Duyvil crossing, on the east side of the railroad, near a fence. He was lying on his back, with his head towards the crossing last mentioned, and with his feet towards Kingsbridge. Ho was unconscious, and died within two days, without regaining consciousness.

The negligence sought to be established on the trial consisted of two omissions on the part of the defendant. (1) Neglecting to comply with an ordinance of the city of New York requiring the defendant to maintain gates on both sides of its grade crossings, and to attend them at all times when trains were passing, and close them at least one minute before a locomotive passed over the crossing. (2) Neglecting to ring the locomotive bell on approaching the crossing.

It was proved, and not disputed, that defendant maintained gates at this crossing, which were opened and closed as required between the hours of 7 o’clock in the morning and 7 o’clock in the afternoon, but that they were left open, without the presence of gate-men, between the hours of 7 o’clock in the evening and 7 o’clock in the morning.

Proof of the violation of a city ordinance does not establish a cause of action against the violator, but it is evidence bearing upon the question of negligence. McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y., 522; Knupfle v. Knickerbocker Ice Co., 84 id., 488; Moore v. Gadsden, 93 id., 12; Connolly v. Knickerbocker Ice Co., 114 id., 104; 22 St. Rep., 675; McRickard v. Flint, 114 N. Y., 222; 23 St. Rep., 100.

The evidence in the case at bar simply shows a violation of the ordinance of the city, but there is no evidence that the trains were run at an unusual rate of speed, that the vicinity was thickly inhabited, or that the highway crossing was much used during the night-time. The fact that two of the trains were one minute late is not important, and the evidence is quite conclusive that there was a clear view of trains approaching from either direction for six or seven hundred feet. The evidence in the record is not sufficient to sustain a judgment on the first ground of negligence above stated.

Only one witness, Robert McGregor, testified to seeing the accident. He and Rainey had been neighbors for several years. He testified that about four or five o’clock in the afternoon of January 24, he went to Rainey’s house, stayed awhile, and they then went out to walk, and entered McArdle’s saloon, which is about two hundred yards from the crossing, on the west side of the railroad, the decedent’s house being on the east side thereof, and within a thousand feet of the crossing. The witness said he left Rainey at the saloon, but seems quite uncertain as to the tima He testified that his house was about ten minutes walk away, and that he reached his home at six o’clock, or eight or nine o’clock. He says that he removed part of his clothing and lay on a bed until about eight o’clock, when he went out by appointment to meet Rainey. He says that the night was dark; that he went down to the crossing on the east side of the railroad, and was about to cross to the west side when he saw Rainey coming towards him from the west. That he, the witness, stood about three or four feet from the east rail of the east track and that Rainey was about thirty feet away on the west side of the track, which places him about ten feet west of the outer rail of the west track. Trains bound for New York run on the west track. The witness testified that Rainey, when near the track, stopped and looked both ways, started to cross, and just as he had passed the east rail of the west track a New York bound train struck him—“ that he was whipped out of my sight. ” The witness testified : “I did not hear any bell rung on the engine when it went by or as it approached the crossing. My hearing is pretty fair. There was no warning whatever given of the approach of that train that I heard. The crossing was not guarded by anybody at the time of the passage of that train. There was no watchman or gateman there.”

This was the only evidence offered to sustain the second alleged ground of negligence above stated. The witness does not attempt to identify the train which caused the injury. Defendant’s telegraphic operator, who was stationed at that time in the Spuyten Duyvil tower, testified that the only trains that passed over the road bound for New York between eight and nine in the evening of January 24 were Ho. 222, which passed at 8:21, one minute late; Ho. 6, which passed at 8:30, one minute late, and Ho. 30, which passed at 8:58.

The conductor and fireman of Ho, 222 testified that this train did not strike any one, to their knowledge, and the fireman testified that the bell was rung all the way between Spuyten Buy vil station and Kingsbridge station, and while passing the crossing. The conductor, engineer and fireman of No. 6 testified that their train did not strike any one, to their knowledge, and the engineer and fireman testified that the bell was rung as they approached and passed the crossing. The conductor, engineer and fireman of No. 30 testified that their train did not strike any one, to their knowledge, on that trip, and the engineer and fireman testified that the bell was rung as they approached and passed the crossing.

The accident happened on the 24th of January, 1892, and the trial was had November 29 of the same year. Thus stood the evidence bearing upon the second alleged ground of negligence.

“As against positive affirmative evidence of credible witnesses of the ringing of a bell, or the sounding of a whistle, there must he something more than the testimony of one or more that they did not hear it. It must appear that their attention was directed to the fact at the time.’’ Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y., 133; McKeever v. N. Y. C. & H. R. R. R. Co., 88 id., 667; Stitt v. Huidekopers, 17 Wall., 384; Whart. Ev., §415.

The witness McGregor, who testified that he did not hear the bell ring, stood on the crossing within three or four feet of the track, but his attention was not drawn to the approaching train by its headlight or by its noise. His testimony, under such circumstances, that he did not hear a bell, is entitled to no weight. Section 7 of chapter 282, Laws 1854, which provides that a bell shall be rung or a whistle sounded on locomotives for at least eighty rods before crossing a highway or street, and makes railroad corporations liable for all damages sustained by any person by reason of neglecting this duty, was repealed by chapter 593, Laws 1886. Lewis v. N. Y., L. E. & W. R. R. Co., 123 N. Y., 496; 34 St. Rep., 373; Kane v. N. Y., N. H. & H. R. R. Co., 132 N. Y., 160; 43 St. Rep., 494. The evidence of this witness is, to say the least, extraordinary. He and Rainey were neighbors and friends, and had lived near each other for several years. He testified that he saw the train strike Rainey and carry him away, and without going to look for him he went home, not by the usual route, but by a circuitous one, took ofí a part of his clothing, and went to bed ; that he might have slept, and while in bed his son informed him that Rainey had met with an accident; that he then went to Rainey’s house, between ten and eleven o’clock, and saw him. We will give the witness’ explanation of his most singular conduct in his own language:

“ The reason that I done that was that I got frightened. I thought the man was all cut up; I was afraid. Not only that, but Í was afraid of meeting anybody by going the regular road. To avoid meeting any person, or seeing any one, I passed over tiie track and went home the back way.”

This is so contrary to the usual conduct of men that it is incredible. The evidence of the absence of contributory negligence on the part of the decedent is all furnished by this witness. He testified that as he stood on one side of the railroad, and Eainey on the other, that “ he (Eainey) looked first towards Spuyten Day vil, I think he did; I am not sure I saw him stand and look up and down the track; I think he looked first towards Spuyten Duyvil and then turned his head towards Forty-second street or Eiverdale crossing. At that time I did not see the train; I am quite sure of it; I neither saw nor heard it at that time.”

Upon the important question of the freedom of the plaintiff’s intestate from contributory negligence, the senses of the witness were all alert. He brought the case within the decisions, but he was not sufficiently attentive to see the headlight or hear the noise of the approaching train. Could he or Euinejr, had they been attentive, seen or heard the train ? The witness testified that, standing where Eainey stood, the approaching train could have, in daylight, been seen not more than one hundred or one hundred and fifty yards, but if you were standing on the other side (where the witness stood) you couldn’t see it fifty yards. At another place in the record the witness testified that he might have heard the train when it was within one or two hundred feet from him; The witness does not claim to have made any test as to the distance a train could be seen from the crossing. A map is in evidence which shows that the track is substantially straight for some distance on both sides of the crossing. Haviland, an engineer sworn for the defendant, testified, that standing on the crossing ten or fifteen feet west of the westerly rail, that a train could be seen 750 feet away, and that, standing thirty-four west of the rail, an approaching train could be seen 597 feet from the crossing. That the nearest building was 350 feet away from the crossing. Curtis, another engineer, testified to the same state of facts. Under the evidence, as it appears in the record, the plaintiff failed to sustain the burden which was upon her, of showing that her intestate did not contribute to the accident. It may be observed that the decedent was thirty-eight years old, and it was not shown that his eyesight or hearing had been impaired. Upon the evidence as it stood the court erred in refusing to dismiss the complaint.

The Court was asked to charge : *‘I ask your honor to charge that if John Eainey, when he stood at a point ten or fifteen feet distant from the nearest rail, or at any point between that and the rail, and before he entered upon the track, could have seen the approaching train, the plaintiff cannot recover.”

The Court: “I refuse to charge that, because I think that calls for an expression of opinion on the part of the court as to a fact. I charge the jury that that is a circumstance which they may take into consideration in making up their minds as to whether John Eainey was or was not guilty of contributory negligence.”

Defendant’s counsel: “ I except to your honor’s refusal to charge as requested, and to the qualification.”

Defendant’s counsel: “ I ask your honor to charge that if the fact was known to John Eainey that the gates were not operated after seven p. M., he was not entitled to relv, in approaching the track, for the purpose of crossing or attempting to cross, upon any protection from the gates.”

The Court: I refuse to charge further upon that subject than I have already charged.”

“Defendant excepts.”

Both requests should have been granted. There might be circumstances which would make it proper to refuse the first request, but, under the evidence in this case, it was not. On the second proposition, the court had given no instructions to the jury in its charge. No allusion had been made to the fact that Bainey had lived at Spuyten Duyvil for nine years, and in the Biley house for eight months, and must or might have known within what hours the gates were operated.

The judgment and order should be reversed on the exceptions and on the facts, and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J.

I concur. There is no but that McGregor did not see the accident, and there is, therefore, no proof in the case that the deceased was free from contributive negligence.

O'Brien, J.

I concur in the of the refusals to charge pointed out in the opinion. Upon the case, I think the question of plaintiff’s right to recover was properly submitted, upon conflicting evidence, to the jury, and were it not for the other errors pointed out, I would favor an affirmance of the j udgment.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    William J. Pell et al., Resp'ts, v. Mary Ann Folger et al., Impl'd, App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Will—Construction.
    Testator, by his will, after directing payment of his debts, gave all his property to his wife; “Every and all of said property to be used, and the income from it to be received and used for the benefit of herself and sister, during the natural life of my wife.” Held, that the sister had no interest in the estáte which she could enforce.
    8. Pleading—Trust—Action to recover property.
    The complaint in this action set forth the will of testator; that a contest arising over its probate, an agreement was entered into by which the widow and her daughter assigned and transferred the real and personal property to plaintiffs in trust to hold and manage during the life of the widow, and apply the income to her use, and on her death divide the property among those entitled to it; that plaintiffs have taken possession of the real estate, but that the widow and her sister have possession of a large quantity of money and personal property, which they conceal and retain, and demanded judgment that they account for and deliver and pay over the same. Held, on demurrer, that the widow and her sister were both necessary parties, and that the complaint stated a good cause of action.
    Appeal by the defendants, Mary Ann Folger and Emily Grant, from interlocutory judgment overruling their separate demurrers to the complaint.

      Fisher & Voltz, for app'lts; H. H. Man, for resp'ts.
   Van Brunt, P. J.

In the consideration of the demurrer interposed by the defendants it is not necessary to determine whether the plaintiffs are entitled to the relief prayed for in their complaint or not. The question is whether the complaint sets forth any causes of action against the demurring defendants; and if so, whether such causes of action have been improperly united, and whether the plaintiffs have a right to enforce the same.

The complaint sets forth the death of William B. Folger, leaving a last will and testament, and alleges that the deceased left as his sole representatives, heirs at law and next of kin, his widow, Mary A. Folger; his daughter, Mary E. Pell, and his grandson, Lee F. Hutting, the son of a deceased daughter of said testator. Such last will and testament is as follows:

“ Brooklyn, May 28, 1882.
“ In the name of God, Amen: I, William B. Folger, of the city of Brooklyn, county of Kings, state of New York, considering the uncertainty of life and being of sound mind and memory, do make and declare and publish this, my last will and testament.
“ First. First paying all debts due by me at my demise.
“ Second. To Greenwood cemetery, or those in authority to receive it, for the care and preservation of my lot in said cemetery, the sum of $500, the interest thereof to be devoted to the above purpose.
“ Third. To my wife, Mary Ann Folger, I give and bequeath all my property, both real and personal, of every description that I may possess at the time of my death, houses, lands, mortgages, both real estate and chattel, furniture, pictures, books, jewelry of any and every kind or description at my death that I may possess, including lot in Greenwood cemetery. Every and all of said property to be used, and the income from it to be received and used for the benefit of herself and sister, Emily Grant, during the natural life of my wife.
“ Fourth. At the death of my wife, the house and lot (if in her possession) 212 South Third street, I give and bequeath to my grandson, Lee F. Hutting, if living, if not living at the death of my wife, the above house and lot, 212 South Third street, to be disposed of as my wife in her judgment feels disposed for her own benefit.
“ Fifth. To Mary E. Pell, daughter of my wife, I give in cash five hundred dollars ($500). Knowing my wife will dispose of the little I have to leave, when she has no further use for it, with justice and equity to her daughter and grandchildren, I make no further disposal, believing that they will each receive according to their merits.
“ Signed May 28, 1882.
“William B. Folger.”

The complaint further alleges : “ That a contest having arisen over the probate of the will of the said testator, a compromise was duly entered into between the parties in interest, in pursuance of which compromise and the settlement of said controversy there was executed in the city of New York, under seal, an instrument in the nature of a deed of trust dated April 18, 1889 (a fearfully and wonderfully made instrument, certainly) winch was duly executed by said Mary A. Folger, the widow, by the said Mary E. Pell, the daughter, and also by Lee Nutting and William J. Pell,, the plaintiffs in this action.

It appears from this instrument (a copy of which is annexed to the complaint), after reciting the death of Folger, his leaving a, last will and testament, the contest which had arisen as to its probate and the agreement which had been made by which it was to be admitted to probate, that the said widow Folger and daughter Pell granted, bargained and sold one undivided half of all the property and estate, real, personal and mixed, whatsoever and wheresoever situated, of which said William B. Folger died seized, subject as thereinafter mentioned, to William J. Pell, Jr., Albert W. Pell and Arthur C. Pell, children of said Mary E. Pell, to-have and to hold the same absolutely and forever, for their own proper use and benefit; and the. other undivided half thereof, subject also as thereinafter mentioned- to Lee F. Nutting, to be held by him for his own proper use and benefit, absolutely and forever. And by said instrument the said Mary A. Folger and Mary E. Pell then sold, assigned and transferred to said Lee Nutting and William J. Pell all the property and estate thereinbefore described, as trustees, to have and to hold the same for and during the life-of said widow Folger, to take possession of, manage and control the same, and to pay and apply the net income arising therefrom to the use of said Mary A. Folger for her life, and upon her death to divide among the parties entitled thereto, under said instrument, the said personal property, if any, and any accrued income therefrom, etc., in the shares in which the principal of said personalty and said realty were to be divided, and to make partition and division of said realty among the persons then entitled thereto. From the trust therein created there was excepted a certain house and lot which was thereby set off, apportioned and allotted to said Mary E. Pell for her life, and at her death it was provided that the same should form a part of the property of said William B. Folger by said instrument conveyed to the children of said Mary E. Pell.

This instrument being apparently executed on the 18th of April, 1889, on the 20th of May, 1889, the will of William B. Folger was admitted to probate.

The plaintiff, then, after stating some legal conclusions as to the effect of the said will and trust deed, alleged the death of Lee F. Nutting, leaving as his heir at Jaw and next of kin his father,, the plaintiff Lee Nutting; and that the defendant, Emily Grant, mentioned in the testator’s will, claims an interest in the property left by said will adverse to the plaintiffs.

The complaint then alleges that the plaintiffs have taken possession of the real estate of the deceased; but that in respect to the personalty of the estate, although they have repeatedly demanded the same from said Mary Ann Folger, she declines and refuses to surrender the same; and that the defendants, Mary Ann Folger, and Emily Grant, have possession and custody of a large amount of money and other personal property, part of the estate -of said testator, of which they obtained custody by virtue of the powers of said Mary A. Folger as administratrix of said will, ■and which she and said Emily Grant conceal and retain from the plaintiffs, who are entitled to the custody thereof. And judgment is prayed that the defendants Folger and Grant be decreed to account to the plaintiffs for the personal property received by them, or in their control, that was of said William B. Folger, and to deliver and pay over the same to the plaintiffs, and for such other relief as might be just.

Separate demurrers were interposed upon the part of the defendants, Emily Grant and Mary A. Folger, both demurring upon the grounds that no cause of action was stated; that causes of .action had been improperly united, and that the plaintiffs had not legal capacity to sue; and the defendant Folger stating the additional grounds that no cause of action was stated for an accounting, and that no cause of action was stated to recover property which she had received as administratrix.

The points urged upon the part of the appellants are that the plaintiffs have no standing whatever to compel the defendant Emily Grant to account to them, she having substantial rights under the will; that the estate was given to Mrs. Folger for life, for the use and benefit of herself and sister, Miss Grant; that she is only accountable to the administratrix for any money or property that may have come into her hands; and that the appointment of the plaintiffs as trustees, if it had any force, was superseded by the subsequent appointment of the administratrix.

In reference to the point that Miss Grant has any legal claim under the will of William B. Folger, deceased, it seems to be only necessary to say that no such intention is expressed in the will Whatever claim Mrs. Folger has upon the property left by her husband, by reason of the devise to her, the extent of which it is not necessary now to determine, there is no gift whatever of any portion of that property or of the income thereof to the defendant Grant.

And that there was no intention upon the part of the testator to make any such gift is evident from the last clause of the will, in which he apparently gives his wife a power of disposition, by inference if not by direct language. What portion of the income was Emily Grant to receive ? What portion did the testator intend she should receive ? Was she to share equally with her sister ? Clearly, such is not the intention of the testator, because, as already observed, in the latter part of the will he gives the wife an implied power of disposition, no mention being made of Emily Grant in connection .therewith. If she was not to share equally with the widow in this income, what share was she to receive? Emily Grant was to receive only that which the widow should choose to give; because it is plain that Mrs. Folger was to receive the income and to use the income. For the benefit of herself and her sister, it is true; but it is equally evident that it was optional with her what amount should be used for the benefit of her sister, and no legal obligation which could be enforced rested upon her in that regard. It is manifestly so indefinite and so vague that Emily Grant never acquired any interest in this estate which she could enforce.

In the case of Hawley v. James, 5 Paige, 318-324, 457, it was, held that where a testator gave an annuity of $3,000 to his wife for her support and for the education of her children, such bequest being in lieu of dower, and the widow having elected to> take dower, no trust was created in favor of the children. And in the case of Clarke v. Leupp, 88 N.Y., 228, it was held that a bequest to the wife of all the property of the testator, to take charge of his property after his death, and to dispose of the same for the benefit of herself and children, gave no interest whatever in the property to the children; but the widow' took an absolute title. The same principle is illustrated in the case of Foose v. Whitmore, 82 N.Y., 405. And other cases might be cited to the same effect. Therefore, the claim that Emily Grant has any interest in this property which made her a necessary party to any agreement in respect to its disposition is entirely unfounded ; and if the parties in question chose to confer upon these trustees the legal title to this property, Emily Grant cannot be heard to say that she will not deliver property in her possession to anybody but the administratrix.

It is further claimed that there is improper joinder of causes of action against Mrs. Folger in which Emily Grant has no interest, and vice versa.

This action is apparently brought to recover property in the possession of the defendants Folger and Grant, and that is the cause of action declared upon in the pleadings. Such being the nature of the cause of action, Mary A. Folger and Emily Grant were both necessary parties.

The legal proposition that none but executors, administrators or trustees can bring an action to construe a will or other instrument is undoubtedly well put. But it has little pertinence to the questions involved upon this demurrer. . The question here is whether any cause of action is made out, and not a question as to the ultimate or temporary disposition of property under the will.

As already observed, the question as to whether an action for an accounting will lie it is not necessary now to determine, because if the plaintiffs are entitled to any relief upon the facts set out in their complaint the demurrers must be overruled.

Upon a careful consideration of those three remarkable instruments, viz. : the will, the agreement and the complaint, each being sui generis, we have come to the conclusion that the complaint states a good cause of action to recover some property of some value from the demurring defendants, and that the demurrers were properly overruled.

The judgment should be affirmed, with costs.

Follett and O’Brien, JJ., concur.


author: Per Curiam.

text:
    Daniel McCarty, Resp't, v. The Altonwood Stock Farm et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Default—Terms on opening.
    Defendants having refused to consent to an adjournment of the trial, plaintiff was compelled to come on from California to attend the trial, at which an inquest was taken. Held, that under these circumstances it was not an abuse of discretion to require.defendants, as a condition of opening the default, to pay $100 to plaintiff’s attorneys, and in case a further adjournment should be had against plaintiff’s consent, that defendants pay plaintiff’s expenses in coming from California, remaining here and returning on his present trip.
    Appeal from so much of an order made upon a motion to open a default as imposes certain terms as a condition for granting the relief.
    The following is the order appealed from:
    Ordered, that the stay granted in and by the said order to show cause why the default should not be opened» be, and the same hereby is, vacated, and the plaintiff is hereby permitted to enter judgment upon the verdict of the jury rendered upon the said inquest, and to docket the same, and that the said judgment shall stand as security for the payment of the claim in this action, until the further order of this court in the premises; and it is further ordered that the defendants pay to the plaintiff’s attorneys, within two days after service of this order upon the defendants’ attorneys, the sum of $100; and it is further ordered that this cause be restored to the general circuit calendar of this court, to be called upon Saturday, March 4, 1893, in part III of this court, and the clerk of this court is hereby ordered and directed to place this cause upon the said calendar for the purpose of fixing a day for the trial; and it is further ordered that the defendants must try this action when it is again reached for trial, unless trial thereof is postponed by the trial court for cause appealing to the court’s discretion, or unless the plaintiff’s attorneys consent to the postponement of the trial; and it is further ordered that if the trial of the cause is postponed by the court against the objection of the plaintiff’s counsel, and the plaintiff then return to California before a second trial of this action has been had, the defendants must pay the necessary and reasonable expenses of the plaintiff in coming from the state of California to the state of New York, for the purpose of attending the said inquest heretofore taken herein, and also the reasonable expenses of the plaintiff in remaining in this city since his arrival, and also the reasonable expenses of the plaintiff in returning to California upon his present trip, the amount of such expenses to be hereafter determined by the court or a judge thereof on notice to the defendants’ attorneys, and to be paid within two days after a service of a copy of the order determining the same; and it is further ordered that, upon the failure of the defendants to comply with any of the conditions specified in the foregoing order, the said motion to open the said default be, and the same hereby is, in all respects denied, with

      ten dollars costs, and the plaintiff is at liberty to issue execution upon the judgment without further notice, but, upon full compliance with the terms of this order, the default is hereby opened, and the inquest set aside.

      Frederick W. Leonard (James B. Lockwood, of counsel), for app'lts; Benjamin N. Cardozo, for resp't.
   Per Curiam.

The terms are, no doubt, stringent, but, upon the facts appearing, we cannot say that the discretion vested in the court, and which was exercised in imposing such terms, has been abused. The defendants were alone responsible for their situation, which left them without their witnesses upon the trial, and compelled the plaintiff, at great expense and inconvenience, to come from Oalifornia, for the purpose of trying the cause, which could have been obviated by defendants consenting to an adjournment. This would have given them, in addition, time to secure the attendance of their witnesses, orto have their testimony' taken.

Where, therefore, the fault was entirely on one side, and where, as here, the judge was of opinion that “ this action is not defended in good faith,” a situation was presented which might have warranted the denial of the motion to open the default. In granting it, however, the judge was, no doubt, impressed with the view that the plaintiff should be reimbursed to the extent that he was injured by the favor thus granted to defendants. To this end the cause was directed to be placed again upon the calendar for trial, and in the event that the defendants should not be ready, and a postponement of the case should result, necessitating the return of the plaintiff to California, provision was made for the expenses which he should incur through defendants’ fault in being obliged to come here, remain, and return to his home. This expense the defendants can save by being ready for trial on the date as provided in the order; but if they wish further time to procure the testimony of absent witnesses, which we think should have been given them, then the plaintiff ought, to the extent provided in the order, to be reimbursed.

When we consider the object sought to be accomplished by the calling of the general calendar, and the placing of causes .on the day calendar certain for trial, it would be subversive of the whole plan if, as in this case, counsel for the defendants, to the disadvantage of the plaintiff, could consent to the trial of the cause for a fixed day, and then, regardless of the trouble and expense to Which such party and counsel might be put, move for an adjournment upon the ground that they never had been ready, and had no assurance when they’' consented to have the cause set down for a day certain that they would be ready.

We think, therefore, that we should not interfere with the order; only it should not be construed as depriving the judge calling the calendar from granting a postponement of the time to enable the defendants to get their testimony if a proper case is made out, provided such defendants consent to pay the disbursements referred to in the order appealed from.

As thus modified, the order should be affirmed, without costs to either party upon this appeal.

Yak Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: O'Brien, J.

text:
    In the Matter of the Distribution of the Proceeds of the Real Estate of Elizabeth A. Stilwell, Deceased.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Decedent’s estates—Surplus moneys — Pendency op ejectment SUIT.
    The pendency of an ejectment action brought by one of the parties to the foreclosure action is no obstacle to the proceeding in surrogate’s court to .distribute the surplus moneys arising from the foreclosure sale.
    3. Same—Jurisdiction.
    Where no objection has been made to or appeal taken from the judgment directing the surplus moneys to be deposited in the surrogate’s court, pursuant to § 3798 of the Cede, it is too late, upon the proceedings before the surrogate, to object to his jurisdiction to pass upon the conflicting claims of the parties to the fund.
    Appeals by Frances Dixon, claiming to be the sole heir-at-law of Elizabeth A. Stilwell, deceased:
    (1) From a decree of the surrogate decreeing distribution of surplus arising from sale under foreclosure of real estate owned by said decedent.
    (2) From an order in effect denying her application for a stay of proceedings pending the determination of an action of ejectment, in the supreme court, begun by appellant against devisees under the will and others, to recover possession, among other real estate, of the premises so sold.

      John G. Agar and Abram F. Servin, for app'lt; Payson Merrill, for resp't.
   O'Brien, J.

Elizabeth A. Stilwell died in 1890, seized of premises No. 214 West Thirty-fourth street, in the city of New York Her will was subsequently, in 1891, admitted to probate in this county. This property at the time of Mrs. Stilwell's death was subject to a mortgage. An action to foreclose this mortgage was commenced in July, 1891, and judgment therein entered in November, 1891, and thereunder the premises were sold, and the surplus money arising therefrom was paid into the surrogate’s court, pursuant to § 2798 of the Code. An application was then made by one of the devisees of Mrs. Stilwell, in which proceeding the other devisees and the appellant, Frances Dixon, who claims to be a daughter of Mrs. Stilwell, were parties, to distribute this surplus among the parties entitled thereto.

In answer to this application, Mrs. Dixon showed that on the 14th of September, 1891, she had commenced an action of ejectment to recover possession of the mortgaged premises, which was then and still is pending.

Though at first inclined to a different view, the surrogate, on further consideration, decided that the pendency of the ejectment action was no obstacle to the proceeding in the surrogate’s court, and that that court had jurisdiction to try and decide the issues-involved in the proceeding, and directed the parties claiming the fund to present their proof before him. Thereupon Mrs. Dixon filed an answer, but on the hearing presented no proof.

The conclusion reached by the surrogate, as shown in his opinion, is based upon three propositions:

First. That appellant’s rights to the land were cut off from the land by the sale in foreclosure and transferred to the surplus, and could only be asserted in a proceeding for its distribution.

Second. That the provisions of the Code imperatively require that the surplus moneys be paid into the surrogate’s court.

Third. That these provisions, from the nature of the case, .necessitate the jurisdiction by him commensurate with the purpose of this proceeding.

It appears that the appellant was a party to the foreclosure suit, and that, by the judgment as amended, the surplus was directed to be paid into the surrogate’s court. There is nothing to show that any objection was made by the appellant to this provision of the judgment, and we fail to see, therefore, how many of the-questions now sought to be raised can be presented, or how they could be presented except by an appeal from the judgment.

If, however, we briefly consider the positions so ably presented by appellant, the conclusion will be similar to that reached by the learned surrogate. That the claim of the appellant is subordinate to the lien of the mortgage, and by the sale was cut off and transferred to the surplus, is evident. And even though a claim or right originally existing against land might be litigated in an independent action, and the party not be confined to the surplus proceeding—which is seemingly contrary to the view of the cases referred to by the surrogate—yet we think it clear that subsequent to the sale of the property an independent action in ejectment would not lie. The object of such an action is to put the plaintiff in possession of the land, and where the object sought to be accomplished no longer exists it would be requiring of the court to litigate a purely abstract question ; and though the court should take the appellant’s view that the surplus money had been substituted for the land, we cannot imagine what judgment in an action of ejectment could be rendered which would affect such surplus.

What was said in People ex rel. Morgan v. Rollins, 33 Hun, 48, head note, is here applicable : “ Where a court has acquired jurisdiction over a subject matter and the parties in interest, in the course of the exercise of its right of authority, it is its duty to proceed with the hearing until a final determination is made of the matters presented for its consideration and under its control, unless it be prevented from so doing by an injunction or some other legal process rendering such a proceeding impracticable. A mere objection, or an objection followed by an ineffectual action in another court, will not justify a delay or a refusal to exercise its own rightful authority.”

We regard it as clear that, if the surrogate had jurisdiction of the subject matter and the parties, he was not obliged to delay exercising such jurisdiction because similar questions were pending and under consideration in another fornm. In other words, where there are concurrent remedies which are resorted to by different parties, the judge or court called upon to determine questions then before them, in the absence of any good reason for not exercising jurisdiction, should not delay and await the result of an action or proceeding in another court. Of course there are instances where the facts would warrant a court in waiting for the conclusion of an action' or proceeding in another court, but the present is not one of those, and for the reasons which we have already pointed out We are of opinion, therefore, that upon the facts appearing before the surrogate he was justified in proceeding, unless he was without jurisdiction over the subject matter and the parties.

We are thus brought to a consideration of one of the most strenuous grounds relied upon by appellant, who takes this very position, claiming that §§ 2797 and 2798 of the Code of Civil Procedure, if construed as a direction to pay all surplus moneys, after an action of foreclosure in the supreme court, into the surrogate’s court, are inoperative and void because unconstitutional. The further position is taken that, though these sections should be held not to be unconstitutional, they do not authorize direct payment into the surrogate’s court of the surplus arising from a sale in a foreclosure suit.

If the language of these sections should be held to be mandatory, requiring and directing the payment into the surrogate’s court of the surplus arising from a sale in a foreclosure suit brought in the supreme court, and thus depriving the supreme court of part of the jurisdiction conferred upon it in all cases of law and equity by the Constitution, we should be inclined to hold that so much of the sections as tend to such a result would be unconstitutional. It has been held, however, by this court, construing chap. 658 of the Laws of 1867, as afterwards amended by chap. 170 of the Laws of 1870, which law is embodied in § 2798 of the Code, that it did not apply to sales made pursuant to judgments. German Savings Bank v. Sharer, 25 Hun, 409. That case is authority for the view that where, after the death of the owner of real property, an action is commenced to foreclose a mortgage thereupon and the property is sold pursuant to the judgment in the action, the surplus moneys arising upon the sale might be distributed under the direction of the court.

While, therefore, the supreme court may proceed to distribute the surplus, and is not prevented from distributing the same by force of any seeming direction requiring that it should be deposited in the surrogate’s court, it does not from this follow that, because the supreme court has jurisdiction, it must itself proceed and exercise it. Many instances might be suggested and thought of wherein, there being no dispute or questions to be passed upon, it might be entirely proper to relegate the subject of distribution to the surrogate’s court or to another jurisdiction. And it would seemingly follow that the power thus conferred by the supreme court upon either its own officer or referee or subordinate tribunal to distribute would include the necessary power to pass upon all questions essential to a just and equitable distribution of such surplus. However this may be, we do not think it can be seriously contended that the supreme court in every case would be bound itself to proceed and distribute, or that it would have no right, upon proper facts appearing and where it would be for the advantage' of all interested in the fund, to diz-ect by its order or judgment the deposit of such surplus in the surrogate’s court and leave to that court its distribution. That, in effect, is what was here done. The judgment of this court, made in an action in which this very appellant was a party, as already stated, directed the deposit in the surrogate’s court; and if there was any good reason why this provision of the judgment should not have been made, the time to object would have been when the judgment was rendered, and, if aggrieved thereby, an appeal would supply a remedy to review the merits of such a grievance. Where, however, no objection was made and no appeal taken, and the fund has been deposited pursuant thereto in the surrogate’s court, it is too late, upon the proceedings before the surrogate, to make the point that, his authority and jurisdiction being limited, he cannot determine all the questions that will arise between the parties as to their conflicting claims to the fund.

We think, therefore, that the appellant is notin a position to question the power of the surrogate or to now insist that he is without authority to pass upon the priority of conflicting claims between heir and devisee to the fund, as distinguished from their validity. Were the question, however, before us we should be inclined to adopt the conclusion reached by the leanied surrogate, that the subject having been referred to him, this, by force of the j udgment and the provisions of the Code, would necessitate the possession by the surrogate’s court of a commensurate power and jurisdiction.

This conclusion is equally fatal to appellant’s further contention that, as her answer presented questions involving the title to real estate or the validity of a will of real estate, the surrogate had no jurisdiction to decide upon such issues.

Óur opinion, therefore, upon all the questions Raised is that the surrogate was right in his conclusions, and that both the order and the decree should be affirmed, with costs.

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


author: Mayham, P. J.

text:
    Charles E. Peabody et al., App'lts, v. Charles A. Boutwell, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Guaranty—Strict compliance.
    A guarantor has the right to insist upon strict <i terms and conditions imposed by his undertaking, an! the contract guaranteed are departed from in the slig obligation is discharged. :ompliance with the 1 when the terms of htest particular his

      2. Same.
    Defendant guaranteed an order made by a member of a firm for delivery of goods to his firm, and “ similar orders” to.a certain amount. The order was filled by plaintiffs, who continued to furnish goods to the firm, and this action was brought for a balance claimed to be due on the entire dealings. All the orders except the first were made by the firm. Held, that defendant was not liable on his guaranty upon the subsequent orders
    3. Same—Ratification.
    Statements made by the guarantor after deliveries have been made, without knowledge of the departure from the terms of the guarantee, do not constitute such a ratification as will bind him.
    Appeal from judgment of the Rensselaer county court dismissing the complaint.

      Smith & Wellington (George B. Wellington, of counsel), for app'lt Frank S. Black, for resp't.
   Mayham, P. J.

This is an appeal from a judgment of the Rensselaer county court, entered upon an order of the county judge dismissing the plaintiffs’ complaint

The action is upon a guarantee made by the defendant securing to the plaintiffs payment for goods ordered by him. The order guaranteed by the defendant to the plaintiffs is in this form:

“ Troy, N. Y., Feb, 27, 1892.
“ Messrs. Peabody & Parks, Lansingburgh, N. Y:
“ Gents—Please deliver to 0. W. Hart the three hundred cans you have made, and send bill to
“C. H. Van Arnum
“ of Hart & Co.”
“ I will be responsible for the above and similar orders to the amount of one thousand dollars.
“ O. Boutwell & Son.”

On this order it appears from the case that the plaintiffs delivered goods of the value of $197. The plaintiff after filling the order continued to furnish goods to Hart & Co., until on the succeeding October the plaintiffs had furnished in all goods to'the value of $1,723.52, on- which Hart & Co. had paid the sum of $880.38, leaving a balance of $842.94.

None of the goods, except those furnished on the first order, were delivered on orders like the one on which the defendant had made his guarantee, but such goods seem to have been furnished to Hart & Co. on their order.

For the balance remaining unpaid two notes were given, one by 0. H. Van Arnum, indorsed by Hart & Co, and one by Hart & Co., indorsed by 0. H. Van Arnum. These notes went to protest, and the plaintiffs seek to recover the amount of the same from the defendant upon his guaranty above set out.

The defendant insists that as the first bill of goods were paid for, and as the balance of the same .was delivered to Hart & Co. on their order, and not on such an order, or one similar to the one he guaranteed, he is not liable.

The trial court concurred in the view of the defendant on this question, and nonsuited the plaintiffs, and the plaintiffs appeal. At the trial the plaintiffs’ counsel stated to the court that he did not ask to go to the jury upon any question, but f excepted to the decision of the court on the motion for nonsuit, and now urges two grounds for the reversal of the judgment.

First, that the defendant is absolutely liable upon his guaranty upon Hart and Company’s accounts to an amount not exceeding $1,000, and is not released from that liability by the variation in the order on which the goods were sold from the order upon which the guaranty was made.

The defendant’s undertaking in this case was in the nature of surety, and he had a right to insist upon strict compliance with the terms and conditions imposed by his undertaking, and when the terms of the contract, or obligation guaranteed, is departed from in the slightest particular, the guarantor’s obligation is discharged.

In Cornell v. Eagan, 1 St. Rep., 265, the court say: “ Any alteration or departure by the parties from the terms of the contract, for the performance of which one becomes a surety for another, discharges the surety whether the alteration was injurious or beneficial to the surety. * * * The court will not stop to inquire whether the alteration is or maybe prejudicial on beneficial to the surety. He is a sponsor for his own contract, and no one has a -. right to make another for him.” ,

In Evansville Bank v. Kaufmann. 93 N. Y., 273, the defendant guaranteed any draft that B. might make on F. of New York city. B. made several drafts on F., and had them discounted at plaintiff’s bank, some of which were not paid. In an action upon the guaranty, the court say: “It is always competent for the guarantor to limit his liability, either as to time, amount or parties, by the terms of his contract, and if any such limitation be disregarded by the party who claims under it, the guarantor is not bound.”

In National Bank v. Conkling, 90 N. Y., 116, the court, in discussing the liability of a surety, say : “ Surety is never to be implicated beyond his specific engagement, and his liability is always strictissimi juris, and cannot be extended by construction.’-’ In Barns v. Barrow, 61 N. Y., 39, the court, at page 46, upon the subject of the liability of guarantors, say: “ The ¡consideration of the contract does not enure to him. He assumes the burden of a contract without sharing its benefits. He has a right to prescribe the exact terms upon which he will enter into the obligation, and to insist on his discharge in case these terms are not observed.

“ It is not a question whether he is harmed by a deviation to which he has not assented.

“ He may plant himself upon the technical objection: This is not my contract”

Applying these well settled rules to the case at bar, the sale of goods to Hart & Co. upon a different order than the one prescribed in the guarantee" releases the guarantor from his guarantee, unless with a full knowledge of the departure from the terms of the guaranty he ratified the act of the plaintiffs and Hart & Co. This the plaintiffs claim he did in the interviews with him in the presence of Van Amum. There is little doubt but that the defendant’s statement in those interviews would bind him if made with .a full knowledge of the fact that the goods had been sold on the order of Hart & Co., and not the order prescribed by the terms of the guaranty.

But the proof, as it stands, establishes beyond reasonable doubt that the defendant, in making those statements, had no knowledge ■of any departure from the terms of the guarantee and supposed that they were delivered on an order such as was prescribed by the guarantee. What he said, therefore, was not a ratification with knowledge of the facts, and did not, for that reason, amqunt to such a ratification as would bind the defendant. Kelly v. Geer, 101 N. Y., 664-666.

In Ritch v. Smith, 82 N. Y., 627, it was held that “ to establish •a ratification by a principal of an unauthorized act, it must appear that the principal acted with knowledge of the facts; he ■cannot be held to have ratified acts which did not come to his knowledge.” In Brass v. Worth, 40 Barb., 654, the court hold that “Ratification is an act with knowledge, and must be unequivocal in its character. * * * In order to make the ratification of an unauthorized act binding, it must be made with full knowledge of the facts affecting the rights of the principal.” Hays v. Stone, 7 Hill, 128. Story on Agency lays down the rule upon this subject, as follows:

“The principal, before ratification becomes effectual against him, must be shown to have had previous knowledge of all the material facts and circumstances in the case, and if he assented or confirmed the acts while ignorant of the circumstances, he can afterwards, when informed thereof, disaffirm it.”

The defendant not having, with full knowledge, affirmed the acts of the plaintiffs and Hart & Co., is not bound by his statements subsequent to the time of the delivery of the goods.

On the whole case we discover no error committed by the learned county judge for which this judgment should be reversed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


text:
    George H. Peaslee, Ex'r, App'lt, v. The Town of Chatham, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Negligence—Contributory.
    Plaintiff’s intestate resided on the opposite side of a creek from his mills, which he was accustomed to visit in the evening. The bridge over the creek was of iron, having two spans and supported by two arches, the ends of which passed through the floor, but from the arch to the corner of the bridge there was no railing. On the evening in question testator went to the mills about five o'clock, taking no lantern with him. It soon after became dark and rainy. Nothing was seen of him until about eight, when persons attracted by his groans discovered him sitting against the abutment in the bed of the creek. Held, that there being no evidence as to how he came there, there was a failure to show want of contributory negligence, and that a nonsuit was properly ordered.

      Appeal from judgment entered upon a nonsuit.

      Charles M. Hall (J. Rider Cady, of counsel), for app’lt; George K. Daley (R. E. Andrews and L. E. Longley, of counsel), for resp’t.
   Mayham, P. J.

This is an appeal from a judgment entered ■upon a nonsuit granted by a judge at the Columbia circuit.

The action was prosecuted by the plaintiff against the defendant to recover for the alleged negligence of the defendant in failing to place a suitable railing along the outer side of a bridge over the Kinderhook creek, which the defendant was bound to maintain as a part of a public highway in that town, by reason of which the plaintiff’s intestate fell from the bridge and was killed.

The evidence discloses that the plaintiff’s testator for many years previous to his death resided at Malden Bridge in the town of Chatham, where he owned or operated two paper mills and a farm.

That he resided on the opposite side of the creek from that on which his mills were located, and that access from his residence to the mills was over an iron bridge of about one hundred and sixty feet in length, having two spans of eighty feet each, and which had stood there since about 1869, in substantially its present condition.

The testator at the time of the accident was 78 years of age, active and in good health. The bridge was supported by two iron arches, the ends of which passed through the floor and rested on abutments, and at the corner where the alleged accident occurred the distance from where the arch passed through the floor to the corner of the bridge was about 5 and one-half feet, and from the point where such arch passed through the floor of the bridge to the corner of the same there has never been any railing. There are two drive-ways across the bridge, with a dividing curb of a few inches in height above the floor, and the same kind of coping extends along the sides of the bridge the whole length of the same. Extending from the corner of the bridge along the creek and connecting with the abutment of the bridge is a wall built by the testator on his own land, called a wing wall, which is about a foot lower than the bridge, and along the outer side of this wall there is no railing or barrier.

The proof shows that the testator was for many years accustomed to pass across this bridge from his house to the mills and return several times a day, and also in the evening of almost each day.

The case does not disclose that any accident had ever happened at this point in the bridge. It appears to have been a custom of this intestate to visit his mills in the evening, and on Sunday evening of the 11th of January, at about five o’clock, which, at that season of the year, was after sundown, the deceased left his house and went to the mill, taking with him no lantern; as the evening advanced it became very dark and rainy, so that others who crossed the bridge testify that they carried lanterns. The evidence does not disclose the whereabouts of the deceased from the time he went to the mill, at about five p. M., until his groans attracted attention at half past eight, and he was found seated against the abutment of the bridge, in or near the bed of the creek, at the base of the abutment. The evidence shows that the commissioners of highways of the defendant had funds with which they might, if they desired, or deemed it necessary, have constructed a railing on this part of the bridge near which the testator was found. Ho complaint appears to have been made to the commissioners that this was a dangerous place, or that the public safety required the construction of a railing at that point.

At the conclusion of the testimony the defendant asked the court to dismiss the complaint upon the following grounds:

First. The plaintiff has failed to show any act of negligence on the part of the defendant, the town of Chatham.
Second. There is no evidence whatever authorizing the jury to find that the deceased was free from negligence contributing to cause the injury complained of.”

In granting the nonsuit on this motion we think the learned trial judge decided correctly. The absence in the proof of either of the essential elements which the plaintiff must affirmatively establish to enable him to recover in this class of actions is always fatal to his right of recovery.

He must show by competent proof, first, the negligence of the defendant, and second, that the injured party was himself free from contributory negligence.

In this case the learned judge held that the proof was sufficient to justify the submission of the question of the defendant’s negligence to the jury.

But that alone would not justify a recovery. The other element must also be proved.

There must upon the other branch be such evidence as will authorize the jury to find from it that the plaintiff’s testator was free from contributory negligence. Harshly as this rule may seem to operate in some cases, it is nevertheless too thoroughly crystalized into our jurisprudence to be ignored or questioned.

In Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y., 330, the rule is reiterated by Earl, J., in the following emphatic language: “ To maintain this action the plaintiff must show that the death of the intestate was caused solely by the negligence of the defendant, and this she must show by competent proof. It must not be left to mere speculation. She has the burden upon the whole case to show that the negligence of the intestate did not in any degree contribute to the accident."

In Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y., 248, the court, per Andrews, J., say: “We think the judgment must be reversed, on the ground that there was no evidence in the case upon which the jury was authorized to- find the absence of negligence on the part of the plaintiff’s intestate which contributed to his death.” “ The jury must be authorized to find affirmatively that the person injured was free from fault which contributed to the accident, or the action is not maintained. If this element is wanting in the case, the court may nonsuit or set aside a verdict for the plaintiff. This rule is now°too firmly settled in this state to be disturbed."

And in Connolly v. Knickerbocker Ice Co., 114 N. Y., 104; 22 St. Rep., 675, the court, Bradley, J., say: “ The further question is whether it appeared that the plaintiff exercised the care required of him. The burden was with him to make it so appear by evidence,

In Bond v. Smith et al., 113 N. Y., 378; 22 St. Rep., 666, the plaintiff’s intestate fell down an areaway in an alley where he was employed as a watchman. The area was protected only by a stone coping a few inches high. The evidence showed that the intestate had passed this area more than 200 times since he had been on duty in the alley. The court, per Earl, J., said: “ There is not the least evidence showing how the accident happened. When lie was found and taken out he gave no account of it.” “ The alley was not lighted on that night, and as all the buildings were from four to six stories ‘high, it must have been dark. But the ■darkness was obvious and the danger known ; and hence, care was demanded of the intestate. How, then, did the accident happen ? How came he to fall over this stone coping into this known place of danger ? The evidence does not tell us. It is an unsolved mystery. Ho plausible theory can be suggested to account for it. We have no right to guess that he was free from fault; it was incumbent upon the plaintiff to show it by a preponderance oj evidence. She furnished the jury with nothing from which they could infer the freedom of the intestate from fault. She simply furnished them food for speculation, and that will not do for the basis of a verdict. The law demands proof, and not mere surmises. The authorities are ample to show in such case the plaintiff should have been nonsuited.”

Judgment for plaintiff reversed.

It is quite true that the court, in Hart v. Hudson River Bridge Co., says that: ‘’When, from the circumstances shown, inferences are to be drawn which are not certain and incontrovertible, and may be differently made by different minds, it is for the jury to make them.” But I fail to see the application of that rule to this case. Here, the case is barren of all facts about which any rational opinion can be formed.

It is true the field for conjecture is wide, but that conjecture is not fortified by any evidence except that the deceased was out in the dark and was found at the foot of the precipice injured and dying. As was said by the learned trial judge in pronouncing his opinion on the nonsuit:

“I think there is an utter absence of proof that the'deceased was free from negligence. ' The evidence is silent on the subject. .There was no railing on this bridge, and the night was dark; he was familiar with the place, presumably knew of its dangerous character; he is found at the foot of this abutment, underneath this place, suffering from injuries in consequence of which he ■died. Whether he himself was free from negligence, thoughtlessly-walked over that place without taking any steps whatever to guard himself from doing it, what he was doing at that time, there is no evidence whatever. The law cannot presume freedom from negligence.

Like other facts, it must be proved either by direct evidence or by circumstances which the jury may properly consider.

The judgment must be affirmed, with costs.

Pütham and Herrick, JJ., concur.


text:
    In the Matter of the Probate of the Will of William Van Wagonen, Jr., Dec'd.

      (Supreme Court, General Term,, Third Department,

      Filed May 9, 1893.)

    1. Surrogates—Disqualification.
    The appointment by the surrogate of his brother as special guardian of an infant litigant in’his court does not disqualify him from hearing and deciding as to the validity of the will in question.
    3. Same—Guardian ad litem.
    A guardian ad litem, is not a party within the meaning of § 46 of the Code.
    Appeal from an order of the surrogate of Ulster county, denying a motion to set aside and revoke the probate of the will of William Yan Wagonen, deceased.

      G. D. B. Hasbrouck, for app'lts; D. B. Deyo, for ex’r; A. T. Clearwater, for resp’t.
   Mayham, P. J.

Only one point seems to be urged on this appeal for the reversal of the order of the surrogate denying the motion to set aside and vacate the decree of the surrogate admitting the will of the deceased to probate, and that is that the guardian ad litem, appointed by the surrogate on the probate of the will is the brother of the surrogate before whom such will was propounded for and admitted to probate. The evidence taken before the surrogate on the proof of the will has not been returned, and this court is not called upon to look into the merits of the question as to whether or not the will was properly admitted to probate on the proofs.

Were the proceedings vitiated or rendered illegal by reason of the appointment of the brother of the surrogate as special guardian ? Section 46 of the Code of Civil Procedure provides: “ That a j udge shall not sit * * * or take any part * * * in matters * * * in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties.”

This provision would not in terms exclude the surrogate in this case unless the special guardian is a party in the sense in which the word “ party ” is used in that section. While the guardian represents the infant in person and in interest, I think it cannot be maintained that he is the party within the meaning of § 46 above referred to.

The infant after the guardian is appointed still remains and retains all the interest in the matter in controversy and is represented by the guardian who is the officer of the court and not the party in interest.

None of the fruits of the litigation belong to him, nor is he personally liable for any of the consequences of the controversy, and is really no more a party than the attorney who prosecutes, or defends in the interest of the party whom he represents.

The only qualification required is that the person appointed shall be competent and responsible. Code Civ. Pro., § 2530. It is true that by § 2529 of the Code Civ. Pro. certain persons therein named are prohibited by reason of business relations or kinship from practicing before a surrogate, but this inhibition does not extend to a brother of the surrogate.

Whatever may be said of the ethics of a judicial officer’s appointment of a near kinsman to a position within the gift of such officer, we do not think that this appointment by the surrogate of his brother as special guardian of an infant litigant, in his court, comes within any of the statutory prohibitions, or of any statute which disqualifies the surrogate from hearing and deciding as to the validity of the will in question, or as to its admissibility to probate. *

The correctness of the conclusion of the surrogate upon the merits of this case not being assailed on this appeal, this court should not interfere to set aside the decree unless some positive violation of law affecting the jurisdiction of the surrogate to make the decree is apparent

The guardian being only an officer of the court and not a party in the statutory sense of that term, we think the surrogate had jurisdiction to hear and determine the case.

In the Matter of Hopper, a lunatic, 5 Paige, 489, the court of chancery held that a vice chancellor might appoint his own son the committee of a lunatic, and as such committee was an officer of the court, and had no personal interest in the subject of the litigation, the case did not come within the provisions of 2 R. S.,. 275, § 2, prohibiting a judge from acting as such in a suit in which he is a party or in which he is interested^ or when he is related to either of the parties by affinity or consanguinity.

In Underhill v. Dennis, 9 Paige 202, it was held that a surrogate might appoint a guardian for an infant in proceedings pending before the surrogate, although the guardian so appointed was a relative of the surrogate, on the ground that such guardian was the officer of the court, and had no personal interest as a party.

I find nothing in the Code which renders a special guardian appointed by the surrogate in proceedings before him any less an officer of the court, or any more a party, than such guardian was under the Revised Statutes, and am, therefore,clearly of the opinion that the objection, that the surrogate was disqualified from hearing and deciding this case, cannot prevail.

The order appealed from must be affirmed, with costs and printing disbursements.

Putnam and Herrick, JJ., concur.


author: Putnam, J.

text:
    Addie La Chapelle, Resp't, v. Mary Burpee, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Will—Devise to one imprisoned for felony.
    One imprisoned for a term of years may take or convey by grant or devise, and the power to take implies the power to accept.
    3. Same—Acceptance of devise—Title.
    A will gave a home to testator’s widow for life and also one to his daughter as long as she remained single, and conveyed the house to his son on condition that after he was liberated from prison he should live in the house with his mother and sister and furnish firewood and board for them, and provided that if he elected not to accept the provision, the property might be sold. The son was then imprisoned for felony, but was pardoned and accepted the devise. Held, that there was no suspension of the power of alienation ; that the son could accept the devise at once subject to the condition, which was a condition subsequent; that the title vested in him immediately on his father’s death, and that a conveyance by the widow and son,, the daughter having married, conveyed a good title.
    Appeal from judgment awarding possession of certain real estate to plaintiff in an action of ejectment.

      Charles R. Patterson, for app’lt; Delcour S. Potter, for resp’t.
   Putnam, J.

This was an action of ejectment, brought to recover land in Warren county, of which one Orin Lashua died seized.

On October 26, 1883, deceased executed a will which, after his decease, and on November 16, 1885, was admitted to probate by the surrogate of Warren county, and contained the following provisions :

“ Second. I give to my wife, Margaret Lashua, a home in my dwelling house during her natural life, and also to my daughter Gertie I give a home with her mother as long as she remains •single or unmarried; the above is subject to conditions hereinafter named.
Third. I give and bequeath to my son, Edward Lashua, my house and lot, on condition that, after he is liberated from prison, he shall live in the house with his mother and sister Gertie, and •shall furnish fire wood and comfortable board for them in the same manner as I have done, as long as his mother shall live, and the household goods that belong to me shall remain for their use in the house.
•“ Fourth. I further direct, in case my son Edward shall elect not to accept the provisions of the legacy to him, then my executors hereinafter named are authorized, if they shall think it advisable, to sell the premises and apply the interest from the proceeds to the support of my wife and daughter, as above provided.
Fifth. I also further direct, if my son declines to accept, that whatever is left at my wife’s death shall be equally divided between my children that survive her.”

At the time of the probate of said will Edward Lashua was in the state prison under sentence of felony, about six years of his sentence being unexpired. He was, however, pardoned on July 27, 1886, and the court below finds that he elected to “ and did accept the terms and conditions of said will, and entered into the possession of said property, on or about the 27th day of July, 1886, as devisee and owner thereof under the said will, and continued in the possession thereof, as such owner, until the 22d day of March, 1888, when he joined with his mother in a conveyance by deed to the plaintiff in this action, for a valuable consideration, whereby each of them assumed to and did convey to the plaintiff all the right, title and interest which either of them had in said property; * * * that the beneficiary, Gertie Lashua, named in said will, was married prior to the execution of said deed.

“That at.the time of the execution of said deed, Edward Lashua and Margaret Lashua were the only persons who had any interest in or title to said property.”

It will be seen by the above quoted provisions of the will that the widow of the testator was bequeathed a home in his dwelling during her natural life. She was to have this home from the date of his death, but was not entitled to firewood and board until the liberation of Edward from state prison. The latter, under the terms of the will, took the house and lot from the dale of the death of his father, but was not compelled to furnish board and firewood for his mother and sister until the expiration of his sen-, tence.

Counsel for defendant claims that at the time the will took' effect Edward Lashua, being in state prison under sentence for a felony, and all his civil rights being suspended, Penal Code, § 707, could not accept the provisions of the will of his father in his favor. Also that by the terms of the will Edward was not called upon or authorized to act or accept the bequest in his favor until his imprisonment ended. That hence, under provisions of the will, and also because of Edward’s imprisonment, the title to the property was in abeyance until his discharge from state prison. And, therefore, the bequest in favor of Ed,ward was void as illegally suspending the power of alienation. It is well settled that the power of alienation cannot be suspended for an absolute term, however short. Home's Ex'rs v. Van Schaick, 20 Wend., 566; Tucker v. Tucker, 5 N. Y., 408.

Therefore, if it is true that the fact of his being a convict, by the terms of the will, or from Edward was not called upon, or could not accept the bequest in his favor until the expiration of his sentence, if the title of the property was in abeyance until that period, the bequest was void.

The construction to be placed upon § 707, Penal Code, is not well settled. In Miller v. Finkle, 1 Park. Crim.; 374, under a similar provision of the Revised Statutes it was, /in effect, held that one sentenced for a felony to state prison c/ould not transfer personal property. It has been held that a< convict could be sued but could not maintain an action. Davis v. Duffie, 8 Bos., 617; 4 Abb. Pr., N. S., 478: Bowles v. Habermann, 95 N. Y, 249 But, in Avery v. Everett, 110 N. Y., 317; 18 St. Rep., 213, the effect of a life sentence, as to the próperty and civil rights of a convict, was considered at grqat length. Under the statute, one sentenced for life is thereafter to be deemed “ civilly dead." While, under § 707 of the Penal Code, the sentence for a less term suspends the “ civil rights ” of the person sentenced. Certainly a convict who, under the statute, is “ civilly dead," is to be deemed as much deprived of “ civil rights " as if those' rights were suspended.

In the authority last cited it was shown that, at common law, one attainted could be grantor and grantee after attainder, and the grant would be valid against any person except the king; he can take a grant or grant to others; while he cannot enter into executory contracts and enforce them, he may transfer his property by will or deed. The case also holds that the provisions of the Revised Statutes, which were similar to those of the Penal Code, supra, should be considered as merely declaratory of the common law.

The authority cited thus determines that one under sentence of imprisonment for life, though civilly dead, may take by grant or devise, or transfer his property by will or deed. It naturally follows that one imprisoned for a term of years may also take or convey by grant or devise.

Therefore Edward Lashua, on his father’s decease, could take the house and lot bequeathed to him. He could be the devisee; The power to take by grant or devise implies the power to apcigd and he could, therefore, accept the bequest so made in his--ia vujv I do not think the position of the appellant can be sustained, that by the terms of the will the acceptance could not be made until Edward was discharged from state prison, and until that time the title of the house and lot was in abeyance. Under the provisions of the will the title of the lot at once vested in Edward, subject to the condition or covenant compelling him to furnish board and fire-wood to his mother and sister. He could accept the bequest at once after his father’s decease, of course subject to the condition or covenant above mentioned.

I conclude, therefore, that the title vested in Edward Lashua on the death of his father, and hence that there was not an illegal suspension of the power of alienation. If the bequest in question created an estate upon condition, it was a condition subsequent. The title vested in Edward prior to his discharge from prison, and, therefore, prior tó his liability for board and fire-wood, and hence the condition was subsequent. This being so he could at any time convey his interest in the house and lot, subject to the condition. Mich. State Bank v. Hastings, 1 Doug. (Mich.), 225-52. See 3 Amer. & Eng. Encyl, of Law, 422-23. It follows that there was no suspension of the power of alienation.

In the opinion of the trial court it is suggested that the provisions of the will requiring Edward to furnish meals and wood to the widow of deceased was not a condition, but a covenant and personal charge upon the devisee. He cites the • case of Jackson v. Martin, 18 Johns., 31. The language of the will in that case, however, differs from that used in the bequest under consideration. In that case there was an unqualified devise to the son of the testator without condition, but with certain directionc for the devisee to obey. Here the house and lot is left to Edward “ on condition ” that he should furnish fire-wood and meals to his sister and mother.

The language of the devise in the case last cited is so differ"ent from that contained in the will of Lashua that it can hardly be deemed an authority. Although it is held that conditions subsequent are not favored, Ludlow v. The N. Y. & Harlem R. R. Co., 12 Barb., 440; Chapin and wife v. School District, 35 N. H., 450-51; 4 Kent’s Com., 132, yet the language of the bequest under consideration is such that it is not clear that its effect was not to create such a condition. But if the effect of the bequest was to create an estate with a condition subsequent, the estate was not thereby rendered inalienable. There were persons in being who could convey an absolute title, viz: Edward Lashua, the devisee, and the widow and daughter of testator, for whose benefit the condition was created. These parties united could convey an absolute title. See 23 Abb. N. C., 416, note entitled “Suspension of alienation by conditions.”

The daughter Gertie having married prior to the death of the testator, and the widow having joined in the deed to plaintiff and thus consented to the conveyance under which plaintiff claims, I think she established her title to the premises described in the complaint, and that the judgment should be affirmed, with costs.

Herrick, J., concurs.


text:
    James Fitzgerald, Resp't, v. The Burden Benevolent Association of the City of Troy, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Benefit societies—Membership.
    By § 3 of art. 1 of defendant’s constitution it is provided that its membership should be unlimited; by a subsequent section as to membership it was provided that the association should be open to any employee of the Burden Iron Co. between the ages of 18 and 50, who is sound in health, etc. Held, that the first provision was qualified by the latter, and that one not an employee of the Burden Iron Co. was not eligible to membership.
    8. Same—Admission of ineligible member.
    The corporation cannot, by admitting an ineligible member, bind itself so as to be compelled to pay benefits to him.
    Appeal from judgment of the Rensselaer county court, affirming judgment of justice in favor of plaintiff.
    Action to recover four weeks benefits by reason of an injury received by plaintiff.

      R. A. Parmenter, for app’lt; John P. Curley, for resp’t.
   Mayham, P. J.

The appellant is a corporation organized according to law, and as such has adopted a constitution and bylaws for its government:

By § 3 of article 1 of its constitution it is provided the membership of this association shall be unlimited.

By § 1 of article 5 of the same constitution it is provided as follows, under the title Membership; “ This association shall be open to any employee of the Burden Iron Company who shall have attained the-age of eighteen, and who is not over fifty years of age, who is sound in health and of good moral character and able to support himself and family.”

It is quite apparent that this latter provision limits and qualifies the provisions of § 3 of article 1 to the class of persons mentioned in article 5, and that within that class of persons membership is by § 3 of article 1 unlimited.

Ho negative words or words of restriction are required in § 1 of article 5 to authorize that construction. The maxim expressio unius est exelusio alienas clearly applies in the construction of that section, and a person not an employee of the Burden Iron Company would not under this constitution be eligible to membership.

But independently of this rule of construction of the two sections above quoted, it is manifest from the whole tenure of the constitution and by-laws of this association that it is confined in its membership to the employees of that company.

We are of opinion, therefore, that the respondent was ineligible as a member of this association; and this brings us to the consideration of the question of the effect of the illegal admission by the association of one not eligible to membership when the subject of benefits arises between such member and the association.

Did this corporation as such bind itself by its illegal act so as to be compelled to pay benefits to one not eligible to membership? Upon this subject we are cited to authorities containing the familiar principle that an individual acting sui juris can waive a statutory or even a constitutional provision in his own favor affecting his own property or alienable rights not involving considerations of public policy. 45 N. Y., 104.

This is doubtless true, but acts by an individual which would be waivers of a reserved right and which would be an estoppel as to him, would, when performed by a corporation which derives its existence from and can only act under and within its charter, be ultra vires and not binding upon the corporators without their individual consent.

If, therefore, this corporation received a member not eligible in violation of its charter, it is difficult to see how it could bind the corporators by that act in the nature of an executory promise to pay benefits to one not entitled to become a member.

I think, therefore, that the judgment of the justice in awarding the respondent benefits, and that of the county court in affirming such judgment, were erroneous, and that both of said judgments should be reversed.

Judgment of the justice and that of the county court reversed, with costs.

Putnam and Herrick, JJ., concur.


text:
    John W. Kerr, App'lt, v. The Union Mutual Life Insurance Co., Resp't.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Insurance (life)—Parties.
    A husband who procures a policy on his life in favor of his wife is a trustee of an express trust in relation thereto, and may maintain an action on the policy in his own name without joining his wife with him.
    2. Same—Action for paid up policy—Pleading.
    The complaint in this action set out two policies of insurance on plaintiff’s life in favor of his wife, which stated that after two or more annual premiums had been paid the policy “.becomes a non-forfeiture policy for an amount equal to one-tenth of that hereby insured for each and every premium which shall have been paid; ” that five annual premiums had been paid; that defendant had agreed to state and render an account of the ratio the policies had contributed to the surplus accumulations and to issue paid up policies, but had failed to do so, and demanded judgment for an accounting and the delivery of paid up policies. Held, that the complaint did not state facts constituting a cause of action; that the policies became paid up non-forfeiting policies by their own terms, and the court would not require a new or other policy; that an action for the pro rata earnings would not lie during plaintiff’s lifetime, and that the agreement stated was void for want of consideration.
    Appeal from final judgment entered upon interlocutory judgment sustaining demurrer to complaint.

      Linson & Van Buren (A. Van Buren, of counsel), for app’lt; Sawyer & Getty (Robert P. Getty, of counsel), for resp't.
   Mayham, P. J.

The complaint alleged the issuing to the plaintiff by the defendant of a life policy on the plaintiff’s life for $3,000, in consideration of the payment by the plaintiff of an annual premium of $213 each year for ten successive years for the benefit of Elizabeth Kerr, plaintiff’s wife.

The complaint then set out in haec verba the condition of the policy as follows: “ And it is hereby understood and agreed that after two or more of said annual premiums have been fully paid this policy becomes a paid-up non-forfeiture policy, for an amount equal to the sum of one-tenth of that hereby insured for each and every premium which shall have been so paid, requiring no further payments of premiums, subject to no assessment, but entitled to its apportionment of the surplus accumulations in the ratio of its contributions thereto.”

The complaint alleged that the plaintiff paid five annual premiums on the policy.

The complaint further alleged that the plaintiff requested an accounting with the defendant of the ratio of said policy’s contribution to the surplus accumulations of said defendant, and that defendant repeatedly promised and agreed to state and render said account and issue to the plaintiff a paid-up policy for the amount of said ratio, but has failed and neglected to do so.

The complaint also alleged that the defendant had a large surplus accumulation, during all the times of the transaction set out in the complaint.

The complaint also set out a second cause of action on another policy of insurance on his life for $5,000, on substantially the same terms, and rate of premium being for $225 annual premiums, which the plaintiff had paid annually for about five years, for the use and benefit of the said Eliza D. Kerr, or, in case of her death, her surviving children.

The complaint then demanded judgment that an account be taken between the plaintiff and defendant, in order that the surplus accumulations on each of the policies might be ascertained, .and that the defendant be directed to pay such sum to the plaintiff, or issue and deliver to him a paid-up policy or policies for the same.

To this complaint the defendant interposed the following demurrer :

“ The defendant demurs to the complaint of the plaintiff herein, and states the following as the ground thereof:
First. That there is a defect of parties plaintiff, in that Eliza D. Kerr, the wife of the plaintiff, is a necessary party plaintiff.
Second. That causes of action have been improperly united, in that the first cause of action stated in complaint does not affect the children of the plaintiff, while the second cause of action does.
Third. That the complaint does not state facts sufficient to constitute a cause of action.
“ The defendant further demurs to the first cause of action separately, and states, as the grounds thereof, that there is a defect of parties plaintiff, in that Eliza D. Kerr, the wife of plaintiff, is a necessary party plaintiff, and also that the said first cause of action, as stated therein, does not state facts sufficient to constitute a cause of action.
“ The defendant also demurs to the second cause of action separately, on the following grounds: First. That there is a defect of parties plaintiff in that Eliza D. Kerr, wife of plaintiff, is a necessary party plaintiff, and also that the surviving children of the plaintiff are necessary parties plaintiff. Second. That the said cause of action, as alleged, does not state facts sufficient to constitute a cause of action.’"’

This demurrer was sustained by the trial judge, and the defendant had leave to enter interlocutory judgment, with costs, with leave to the plaintiff, on payment of coste within twenty days, to amend his complaint, and in default of which defendant to have judgment dismissing the plaintiff’s complaint, with costs.

The appellant failed to pay the costs and amend the complaint, and after twenty days from the service of the same the defendant entered judgment dismissing the complaint, and from that judgment and the order for interlocutory judgment the appellant appeals.

The first question raised by this demurrer is, is there a defect of parties plaintiff appearing upon the face of the complaint? The complaint, upon its face, shows that the policy is for the use and benefit of bis wife. Standing upon that allegation alone, the wife, on the execution and delivery of the policy, became a party in interest in the same, and to any action which might affect her interest therein she would be a proper and necessary party unless the plaintiff who made the contract of insurance was a trustee of an express trust. Code of Civil Procedure, § 449.

The policy on its issuance became the property of the beneficiaries named in it.

Mrs. Kerr, therefore, became the beneficial owner of the first policy on its delivery to the plaintiff, and as the complaint docs not show that she had children, the same for the purposes of the questions raised on this complaint is true of the second policy, and the plaintiff became her agent only for the purpose of perfecting the same. Chapter 80 of Laws of 1840 ; Whitehead v. N. Y. Life Ins. Co., 102 N. Y., 143; 1 St. Rep., 344.

Did that make her a necessary party in an action by the plaintiff upon that policy? We think not. The section of the Code above referred to requires every action to be prosecuted in the name of the real party in interest, except that executors, administrators, trustees of an express trust, and persons expressly authorized by statute may sue without joining with them the persons for whose benefit the action is prosecuted.

The same section defines a trustee of an express trust to be “ a person with whom, or in whose name a contract is made for the benefit of another.” Within this language the plaintiff, who made this contract for the benefit of his wife, may sue without joining her with him.

The remaining question is, does the complaint state facts sufficient to constitute a cause of action ? If this question is to be answered alone upon the terms of the policy set out in the complaint, I am clearly of the opinion that the answer would be in the negative.

Assuming the clause of the policy set out in the complaint is to control, then no cause of action would exist in favor of the plaintiff, for the reason that the policy by its terms became, on the payment of two or more payments, a paid up non-forfeiting policy, and the court would not require a new or other policy of the same kind in, legal effect. Nor would the court on that clause alone compel the defendant to account and pay over to the plaintiff in money the pro rata surplus earnings, for the reason that they would not by that provision of the policy be due until the death of the plaintiff. Lyon v. Union Life Ins. Co., 44 St. Rep., 581.

But the complaint does not stop with that recital from the policy. It sets up an agreement on the part of the defendant to state an account of these policies and issue to the plaintiff a paid up policy for the amount of the ratio as fixed in the terms of the policy.

It is difficult to see upon what grounds such an agreement if made can be enforced, if it be held, as I think it must, that by the terms of the policy it became a paid up policy on the payment of the premiums, without liability of forfeiture for non-payment of future premiums, and without any agreement in the policy itself for accounting or payment during the life time of the assured.

I think the agreement as stated in the complaint is void for want of consideration, and that for that reason it does not st.-u'facts constituting a cause of action, and that the demurrer was properly allowed by the trial court.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.