text:
    Barrant W. Felthousen, Resp't, v. The City of Amsterdam, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Municipal corporations—Assessments—Amsterdam.
    Plaintiff’s land was assessed for a local improvement, the property being described by the lot numbers and boundaries and as stores and lots, but it was not described as non-resident land nor the name of plaintiff or the occupants given. Held, not a compliance with the provisions of the charter of the c.ty, requiring the assessors to “make a just and equitable assessment of the amount fixed * * against said owners or occupants and upon the lands deemed to be benefited.
    Appeal from judgment vacating assessment upon plaintiff's lands.

      Edward J. Maxwell, for app’lt; Edward P. White, for resp’t.
   Herrick, J.

This is an action to set aside a assessment upon the plaintiff’s real estate levied to pay the expense of paying Market street in the city of Amsterdam.

The statute in relation to such assessments, § 95, chap. 131, Laws of 1885, among other things, provides as follows: “ If the common council shall determine to assess the whole or any part of such expense by such special assessment, the said assessors, upon being notified so to do, shall forthwith proceed to make a certificate of such special assessment, entering thereon the names of the owners or occupants of the lands assessed, and what parcels are owned by non-residents, according to their best information, and the name of any corporation or association owning any of the lands. They shall make a just and equitable assessment of the amount fixed by the common council against said owners or occupants, and upon the lands deemed to be benefited.”

A statute delegating power to charge the property of individuals with the expense of local improvements must be strictly pursued, and any departure in substance from the formula prescribed by the statute vitiates the proceedings. Newell v. Wheeler, 48 N. Y., 486; Merritt v. Village of Portchester, 71 id., 309; Stebbins v. Kay, 123 id., 31; 33 St. Rep., 72.

In the case before us no assessment was made against the plaintiff as owner, or against the occupants of his property (admitted to be ten in number); the property is not described as nonresident property; the name of the owner or occupant does- not appear under the column headed “ Names;" the numbers of the lots and the boundaries appear, and that is all. Under the column headed “ Description of property ” appears the words “ Stores and Lots.”

There is an entire absence of compliance with the statute in assessing these lands, either as the lands of residents or to the owner or occupant. And such non-compliance, I think, is fatal. Cromwell v. MacLean, 123 N. Y., 474-88; 34 St. Rep., 85.

It seems to me a jurisdictional defect, and not a mere irregularity, which the court might disregard if it did not appear that the plaintiff had suffered substantial injury thereby.

The case of Haight v. Mayor, 99 N. Y., 280, is not in point. It turned upon a special statute which, among other things, provided that “no tax or assessment shall be void in consequence of the name of the rightful owner or owners of any real estate in said city not being inserted in the assessment rolls or lists. But in such case no tax shall be collected except from the real estate so assessed.” The court then said : “ This provision clearly indicates that the tax is to be imposed upon the land, and that it is immaterial to its validity that the owner’s name should appear upon the list, except for the purpose of imposing upon him a personal liability for the tax.”

In this case the statute just as clearly provides that the assessment shall be made against both the owners or occupants, and the lands; it says: “ They shall make a just and equitable assessment of the amount fixed by the .common council against said owners or occupants, and upon the lands deemed to be benefited.”

This we have seen has not been done, the provisions of the statute have not been complied with, and as to the plaintiff’s property the assessment should be vacated.

The judgment of the court below vacating the assessment should be affirmed, with costs.

Putnam, J., concurs.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    James W. Farrell, Resp't, v. Seth Hill, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Costs—Pleading— Claim of title.
    Where a defendant pleads title in an answer not containing a counterclaim, such plea is to be deemed controverted without a reply, and a claim of title to real property arises on the pleadings, and in such case the plaintiff on recovering any judgnnent is entitled to costs without any certificate and although in fact no evidence was offered on the trial on the question of title.
    Appeal from order vacating and setting aside a taxation of costs in favor of defendant, and ordering a retaxation in favor of plaintiff.
    The facts appear in the opinion at special term, as follows:
    Putnam, J.—The plaintiff in his complaint alleged that on March 25, 1892, he was duly possessed and in occupation of the house and premises described, and that defendant wrongfully and unlawfully trespassed and tore up carpets and oil cloths, and removed chairs and tables, and otherwise unlawfully and wrongfully ransacked and despoiled said house.
    Defendant, for answer, (1) denied the material allegations of the complaint, and (2) set up that one Seymour Colson and wife were the owners in fee and possessed of the said premises, and entitled to the right of immediate and actual possession thereto, and were removing their furniture to said dwelling-house, as they had a lawful right to do, and finding in said house some furniture, goods and chattels unlawfully therein, necessarily and carefully removed them from said house; and that defendant, at the request of said Colson, assisted him in such removal, as he had a lawful right to do.

      Plaintiff, on the trial, obtained a verdict for five dollars, which, "by order of the court, was increased to fifteen dollars, by virtue of the provisions of § 1669 of the Civil Code.
    Before the clerk on the taxation of the costs each party claimed to recover of the' other the costs of the action. The clerk awarded the costs to the defendant. This motion is made by the plaintiff to review the action of the clerk; plaintiff insisting that he is entitled to recover the costs of the action, although the recovery was less than fifty dollars, under the provisions of subdivision 1 of § 3228 of the Civil Code, on the ground that a claim of title to real property arose upon the pleadings. No certificate is produced that a claim of title to real property in fact arose upon the trial.
    If, under the provisions of the Code, a reply were required where the answer set up an affirmative defense not constituting á -counterclaim, and the plaintiff in this case replying to the allegations contained in the answer, as to the title of Seymour Colson .and wife to the premises in question, had denied such allegation, it would not be doubted but that a claim of title to real property .arose on the pleadings. Dinehart v. Wells, 2 Barb., 432.
    But inasmuch as the answer did not contain a counterclaim no reply was required, and the allegation setting up title in the Col-sons is to be deemed controverted by the plaintiff. Section 522, Civil Code.
    To the allegation of the defendant asserting the title of Seymour Colson and wife to the premises in question the statute interposes a denial on the part of the plaintiff. The statute created a legal issue as to the Colson title.
    Coming down to the trial on such pleadings defendant would be compelled to prove his allegation of title just the same as if a reply were served denying such allegation. I think, therefore, where a defendant pleads title, which by statute is deemed denied by the plaintiff, a claim of title to real property arises upon the pleadings. The question raised in this case was settled in this district long since in the case of Lillis v. O'Conner, 8 Hun, 280. The action was assault and battery, and the defense was (1) general denial and (2) son assault demesne, (3) justification in defense of defendant’s possession of his own property. Justice Bockes gave the opinion of the general term, and, referring to Dinehart v. Wells, supra, remarked: “ Under the Code no reply to the defendant’s answer was admissible, Code, § 153, and the third defense was to be deemed controverted by the adverse party as upon denial or avoidance. Sec. 168. The two cases are, therefore, precisely alike as regards the pleading. Thus, in the case in hand, according to the decision in Dinehart v. Wells, and in legal logic, a claim of title to real property was raised on the pleadings. The defendant tendered the issue by his answer; a reply was inadmissible; but the new matter interposed as a defense was by the Code to be. deemed controverted 1 as upon direct denial or avoidance.’ Sec. 168.”
    The above authority, I think, has not been questioned, but is referred to in Lynk v. Weaver, 128 N. Y., 177; 40 St. Rep., 349, and must be deemed to settle the law in accordance with the views above suggested. The case of Lynk v. Weaver, supra, referred to by counsel for defendant, is not parallel to the case before us. In that case the plaintiff in his complaint claimed title to the premises described. The answer contained no denial of his title, and the court held that where, “ viewing all the pleadings, there is no issue or dispute about the title, in no legal sense can it be said that a claim of title arises upon the pleadings. The phrase has reference to a case where both parties in the pleadings claim the title, or where one claims it and the other disputes it”
    In the ease before us the defendant pleaded title in the Col-sons. The allegation is deemed denied by the complaint, thus raising a direct issue upon the claim of title.
    Of course, under the provisions of subdivision 1, § 3228, Civil Code, where an issue as to a claim of title to real estate is thus raised by the pleadings, the plaintiff recovering any judgment is entitled to costs without any certificate, and although, in fact, no evidence -was offered on the trial on the question of title.
    An order should be entered directing retaxation of costs, and that the clerk, on such retaxation, allow to plaintiff the costs of the action, with ten dollars costs of this motion.

      Miner & Hill, for app’lt; Charles M. Davison, for resp’t.
   Herrick, J.

I think this case should be affirmed, with costs and disbursements, on opinion of special term.

Mayham, P. J., concurs; Putnam, J., not acting.


text:
    John H. Van Vechten, Resp't, v. John McKone, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Chattel mortgage—After acquired property.
    A person may mortgage the future product of Ms farm, or property to ' he thereafter acquired, hut to do so he must clearly express Ms intention and the property must be described in the instrument.
    2. Same.
    One H., who occupied two farms and was indebted to plaintiff, agreed to give him a mortgage on thirty-five tons of hay, although he stated that he did not think there were thirty-five tons, but he would make it good from hay that grew that year. Plaintiff had the mortgage drawn, and it described the property as thirty-five tons of hay, ‘ ‘ said property now being and remaining in the possession of said ” H. Defendant, a constable, levied upon and sold fifteen tons of hay grown after the giving of the mortgage. Meld, that such hay was not embraced in the mortgage.
    Appeal from judgment of Montgomery county court in favor of plaintiff on a new trial had on appeal from justice’s court.
    Action for conversion of a quantity of hay.
    On the 24th of March, 1890, John Hansett, a farmer of Duanesburgh, Schenectady county, being indebted to the plaintiff, a resident of Florida, Montgomery county, upon a promissory note long past due, went to the plaintiff’s for the purpose of voluntarily executing to him a chattel mortgage upon hay and other property, the hay to be described as thirty-five tons, the mortgagor then stating to the plaintiff that “ he did not think there was thirty-five tons,” but “ would make it good from hay that grew that year.”
    Hansett, unaccompanied by the plaintiff, returned to Maria-villein Duanesburgh, and had Walpole draw the mortgage, telling him to put “ 35 tons ” in the mortgage, and left the mortgage with Walpole, who filed it.
    The description in the mortgage of hay is “ 35 tons of hay, said property now being and remaining in possession of John Hansett”
    During the spring and summer of 1890 the mortgagor had possession of two farms, one on which he cut and harvested hay, his own, the other farm, his mother’s, on which he harvested hay on shares.
    On the 31st day of May, 1890,' George Lockwood recovered judgment against the mortgagor, Hansett, for $27.75, upon which execution was issued in September, 1890, to the defendant, a constable of Schenectady county, who in pursuance of said execution levied upon, and on the 4th day of October, 1890, sold the mortgagor’s share, about fifteen tons of hay, then in his possession, harvested by him the summer of 1890 on his mother’s farm on shares.

      Simon Calkins, for app’lt; Robert J. Sanson, for resp’t.
   Herrick, J.

I think there can be no question but that a son may mortgage the future product of his farm, or property to be thereafter acquired, but to do so he must clearly express his intention, and the property must be described in the instrument.

A chattel mortgage must contain such a description of the property covered as, will enable third persons clearly to identify the property, when aided by inquiries which the instrument indicates and directs. 3 Amer. & Eng. Encyclopedia of Law, 180. Such description must cover property in being as well as that to be thereafter acquired. In McCaffrey v. Woodin, 65 N.Y., 464-67; Wisner v. Ocumpaugh, 71 id., 113; Coats v. Donnell, 94 id., 177; Kribbs v. Alford, 120 id., 519; 31 St. Rep., 564; Green v. Armstrong, 1 Den., 550; Smith v. Taber, 46 Hun, 313; 14 St. Rep., 644; Betsinger v. Schuyler, 46 Hun, 352; 12 St. Rep., 377, the instrument, whether lien, lease, or chattel mortgage, by apt words and expressions set forth the intention of covering property to be thereafter acquired, produced or raised.

In the chattel mortgage in-this case there is no reference expressly or by implication to property to be acquired or produced thereafter, and being none, the mortgage must be construed to cover only property in existence at the time of the execution of the mortgage.

The hay seized by the defendant under his execution not having been in existence at the time of the execution of the mortgage, was not embraced by it, and the defendant is not liable to the plaintiff for its conversion; it follows, therefore, that the judgment should be reversed.

Judgment of county court reversed, with costs.

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


text:
    Rebecca Van Etten, App'lt, v. John E. Van Etten, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Justice’s court—Plea oe title—Discontinuance.
    Upon a defendant’s setting forth in his answer facts showing that the title to real property will come in question and delivering to the justice the undertaking required by § 2954 of the Code, the action is ipso facto discontinued, the justice is ousted of jurisdiction and any judgment he may render is a nullity.
    2. Landlord and tenant—Estoppel.
    A tenant is not estopped from showing that the title of his landlord has terminated since the commencement of the tenancy.
    ApPEAL-from judgment of the Ulster county court, reversing a justice’s court judgment in favor of plaintiff. The facts appear fully in the opinion of the county judge, as follows:
    Clearwater, J.—The plaintiff brought suit in the court below and alleged that on the 1st day of April, 1884, shq let and rented to the defendant as her tenant a farm in the towns of Hurley and Kingston for the term of one year at a rental of fifty dollars, payable at the end of the term, she reserving the right to cut and remove firewood and fencing material.
    That the defendant entered into the enjoyment of the demised premises under the lease, and has continued in possession since that time under implied contracts of a renewal of the lease on the same terms from year to year, paying each year the annual rent of fifty dollars except the rent for the year ending April 1, 1892, which he refuses to pay.
    The defendant, in addition to a general denial, pleaded that he is the owner in fee of the premises for the rent of which the plaintiff sues, and that, therefore, the title to real property would come in question, and tendered with his plea the bond required by statute to remove the case to this, or the supreme court.
    The justice held the bond to be of proper form and the surety amply sufficient, but refused to dismiss the case and proceeded with the trial, rendering judgment in favor of the plaintiff for the amount claimed, with costs.
    The defendant appeals, and the only question presented for review is this ruling of the court below.
    It is provided by § 2951 of the Code of Civil Procedure that “ The defendant may, either with or without other matter of defense, set forth in his answer facts showing that the title to real property will come in question. Such answer must be in writing, and it must be signed by the defendant, or his attorney or agent, and delivered to the justice. The justice must thereupon countérsign the answer and deliver it to the plaintiff.”
    Section 2952 provides for the giving of the undertaking, which it is admitted was furnished by the defendant.
    Section 2954 provides: “ Upon the delivery of the undertaking to the justice the action before him is discontinued, and each party must pay his own costs. The costs so paid by either party must be allowed to him if he recovers costs in the new action to be brought as prescribed in the last two sections.”

      It will thus be seen that upon the defendant's setting forth" in Ms answer facts showing that the title to real property come in question and delivering to the justice the undertaking required by the last section, the action is ipso facto discontinued, the justice is ousted of jurisdiction, and any judgment he may render is a nullity.
    The plaintiff urges on this appeal that the defendants having originally leased the demised premises from the plaintiff, is estopped from denying her title. That is unquestionably so, unless the defendant since the execution of the lease has acquired a title superior to that of his lessor, or has acquired her title. But it is exactly this fact which the defendant has the right to show in bar of the plaintiff's suit, for it is clear that when the relation of landlord and tenant has existed, and the tenant ceases to hold under the lease, there is no estoppel. Nor is a tenant precluded from showing that the title of his landlord has terminated since the commencement of the tenancy. He cannot, of course, deny that the person by whom he was let into possession had title at that time, but he may show that such title has determined. This can be done in various ways. For instance, by an actual eviction, by title paramount, by descent cast, by devise, by purchase, by grant, or by judicial sale, all of which questions are of too grave and serious a character to be determined by a justice of the peace. The legislature, therefore, has wisely deprived such magistrates of jurisdiction in eases of this character.
    The justice should have dismissed the case as directed by the statute, and his refusal to do so was error, for which the judgment must be reversed.

      George Van Etten, for app’lt; J. E. & J. G. Van Etten, for resp’ts.
   Herrick, J.

It seems to me that title was made an issue in the case by the defendant’s answer, and that the judgment of the county court is correct.

The reasons for reversal of the judgment of the justice’s court were satisfactorily and sufficiently set forth in the opinion of the county judge and I can see no reason for any further opinion.

Let the judgment of the county court be affirmed, with costs.

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


author: Herrick, J. Putnam, J. Mayham, P. J., (dissenting).

text:
    Ellen Wilber, Resp't, v. Daniel Dwyer, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Civil damage act—Exemplary damages.
    In an action under the civil damage act exemplary damages are not recoverable without proof of facts additional to the facts required to be proved to recover compensatory damages.
    3. Same—Charge.
    In such an action the court charged that the -jury were at liberty to give exemplary damages if they chose to do so, and stated “ that part of the law was evidently designed to punish more severely those persons who. seeing that a man was drunk, or even at the verge of intoxication, still allowed him to have liquor at their bars, so that he became completely intoxicated. Of course a person who sells a glass of beer or moderate drink to a person apparently sober is not as guilty as one who sells liquor to a man who has already had too much. That is the reason why the law allows exemplary damages under such circumstances.” At the close of the charge he refused a request to charge that there was no evidence from which the jury could find damages other than compensatory, and charged that “ the law gives the right of exemplary damages from the fact of causing the intoxication, in whole or in part, and the injury resulting, if the jury think it is a proper case to award exemplary damages.” Held, error; as the jury could properly infer from the charge that they could give such damages on proof of a sale of liquor causing intoxication without proof of additional facts.
    (Mayham, P. J., dissents.)
    Appeal from judgment in favor of plaintiff, entered upon verdict for $200 damages.

      William S. Ostrander (James M. Whitman, of counsel), for app’lt; Gibson & Van Kirk (Charles C. Van Kirk, of counsel), for resp’t.
   Herrick, J.

This is an appeal by the defendant from a judgment upon verdict of a jury in an action under the civil damage act, for an alleged selling of liquor by the defendant to the plaintiff’s husband, whereby her said husband was rendered intoxicated; and while in such state of intoxication drove to death a horse belonging to the plaintiff, broke her carriage, and also was injured himself, and, for the time being, caused^ her loss of support.

The verdict rendered was for the sum of $200. The question as to whether the defendant did in fact sell liquor to the plaintiff’s husband which was the cause, or partly the cause, of his intoxication, was purely one of fact for the jury; there was evidence to sustain their finding in that respect

The only serious question presented to us is one arising upon the charge of the court upon the subject of exemplary damages. The court said: “You are also at liberty, if you choose to do so, to give what the law calls exemplary damages, that is, damages by way of example as a punishment to deter others from selling whiskey or other spirituous liquors to a man till it in whole or in part produces his intoxication. That part of the law was evidently designed to punish more severely those persons who, seeing that a man was drunk, or even at the verge of intoxication, still allowed him to have liquor at their bars, so that he became completely intoxicated. Of course a person who sells a glass of beer or moderate drink to a person apparently sober is not as guilty as one who sells liquor to a man who has already had too much. That is the reason why the law allows exemplary damages under such circumstances, that is, to give in addition to the compensation another sufficient sum which should act as a punishment or as an example.”

Again, at the close of his charge, after refusing defendant’s request to charge that there was no evidence from which a jury could find damages for anything except the loss of the horse and wagon, and nominal damages for loss of support, the court charged: “ The law gives the right of exemplary damages from the fact of causing the intoxication, in whole or in part, and the injury resulting, if the jury think it is a proper case to award exemplary damages.”

In passing the so-called civil damage act the legislature created a cause of action theretofore unknown to our laws, and in the act provided that the jury might award both compensatory and exemplary damages, but did not state upon what evidence either should be awarded; consequently they are subject to the same rules as govern other cases.

Exemplary damages are not recoverable without proof of facts additional to the facts required to be proved to recover compensatory damages. Reid v. Terwilliger, 116 N. Y., 530; 27 St. Rep., 563; Neu v. McKechnie, 95 N. Y., 636.

It seems to me that it could be properly inferred by the jury from the judge’s charge that they were at liberty to give punitive or exemplary damages upon proof of the bare fact that the defendant sold liquor which caused or partly caused the intoxication of plaintiff’s husband, without proof of any additional facts. In other words, that the same evidence, no more, that would warrant them in giving a verdict for compensatory damages would also warrant them in adding to that verdict punitive or exemplary damages. That, I think, is error. There is nothing in the evidence in this case, that I can discover, that would warrant a verdict for anything more than compensatory damages; and because of the error in the charge judgment should be reversed, and a new trial granted, costs to abide the event

Putnam, J.

The trial judge charged the jury as follows : “ The law gives the right of exemplary damages from the fact of causing the intoxication, in whole or in part, and the injury resulting, if the jury think it is a proper case to award exemplary damages. It is not a matter of course.”

It is settled that in actions brought under the civil damage act-a plaintiff cannot recover exemplary damages unless, besides showing the sale of the liquor, there is evidence produced of some aggravating circumstance, or some fact besides the mere sale of liquor justifying an award of exemplary damages. Reid v. Terwilliger, 116 N. Y., 530; 27 St. Rep., 563. In this case if the judge had instructed the jury that if they found that defendant sold liquor to the plaintiff’s husband after he became intoxicated, or found some other aggravating circumstance, they might award punitive damages ; such an instruction would have been proper. But the jury were in fact instructed that the plaintiff might recover exemplary damages from the mere fact of defendant’s causing the intoxication of plaintiff's husband in whole or in part

I think the instruction erroneous, and hence that there should be a new trial.

Mayham, P. J., (dissenting).

I think the court in his charge correctly stated the rule of law in this class of cases and that the judgment should be affirmed.

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


text:
    Joseph C. Benton, App'lt, v. Benjamin W. Winner et al., Resp'ts.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Pleading—Misjoinder—Partnership.
    The complaint alleged that in 1885 W. and B. were copartners under the name of W. & Co. That in 1887 S. and D. were taken into said firm, and that in 1888 S. and B. sold out to defendants, who continued the business; that the name of the firm continued the same; that between 1885 and 1888 plaintiff sold goods to said firm, and demanded judgment for a balance claimed to be due. Held, that the complaint in fact stated three separate causes of action; that the sales were made to the persons composing the firm at the time the goods were delivered, and that there was a misjoinder of causes of action and parties.
    Appeal from order and interlocutory judgment entered thereon, sustaining demurrer to complaint.

      Alpheus Polls, for app’lt; T. F. Bush, for resp’t, Winner ; Marvins & Hanford, for resp’t, Draper.
   Herrick, J.

This is an appeal from a judgment rendered upon a demurrer interposed by defendant A. Draper to complaint of the plaintiff.

The plaintiff in his complaint states that during the year 1885, Benjamin W. Winner and one John Babcock were co-partners in business under the name and style of B. W. Winner & Co., and as such co-partners carried on the business of buying and selling wood.

That on or about the 1st day of January, 1887, the said firm of B. W. Winner & Co., received into said co-partnership as equal partners Albert H. Sewell and Charles A. Draper. That the name and style of said firm remained unchanged. That on or about the 1st day of April, 1888, Albert H. Sewell and John Babcock sold out all their interests in the said co-partnership, and in the business of the firm, to the defendants Winner and Draper, who assumed and agreed to pay all the outstanding debts of said firm and continued the business of buying and selling under the firm name of B. W. Winner & Co., and they continued the business of such co-partnership until on or about the 1st day of November, 1888.

The plaintiff further states that between the 1st day of January, 1885, and the 1st day of November, 1888, he sold and delivered to the said firm of B. W. Winner & Co. wood in each and every said years, amounting to about the sum of $5,859.58.

At different times between the same dates the said firm of B. W. Winner & Co. paid the plaintiff about the sum of $4,201.58, • leaving a balance due the plaintiff, on the 1st day of November, 1888, of $1,658, exclusive of interest, for which sum he demands judgment against the defendants jointly and separately.

. It will be observed that while in form the plaintiff sets forth but one cause of action, yet from his statement of facts there are three separate causes of action involved. While all 'his sales are alleged to have been to the firm of B. 0. Winner & Co., still, as matter of fact, his sales from 1885 to the 1st day of January, 1887 were to whatever persons that firm was composed of, Benjamin W. Winner and John Babcock, and they alone were responsible to him for the sales made to the firm during each of those years. From the 1st day of January, 1887, until the 1st day of April, 1888, the firm was composed of Benjamin W. Winner, John Babcock, Albert H. Sewell and Charles A. Draper; they were responsible for merchandise sold to the firm between those dates, and such sales constituted a separate and distinct cause of action in favor of the plaintiff against such persons.

The new copartners in the firm, Sewell and Draper not having agreed to pay the debts of the firm as it existed from 1885 until the 1st day of January, 1887, they are not responsible to the plaintiff for the goods sold by him to the firm during those years. Serviss v. McDonnell, 107 N. Y., 260; 12 St. Rep., 485.

From the 1st day of April, 1888, until the 1st day of November of the same year, the copartnership was composed of the defendants Winner and Draper, and the merchandise sold by the plaintiff to the firm during that time constituted a third cause of action. It follows from this that there is a misjoinder of causes of action in the complaint; that all of the causes of action set forth in the complaint do not exist against ail of the defendants.

That as to the first cause of action, that is for the merchandise sold from 1885 to January 1,1887, there is a misjoinder of parties defendant.

The defendant Draper not being a member of the firm during that period, and not having assumed to pay its debts when a new firm was established January 1, 1888, is not liable therefor, the persons liable for the merchandise sold to the firm up to that date being Benjamin W. Winner ánd John Babcock. ’ All these matters appear upon the face of the complaint.

The judgment sustaining the demurrer should be affirmed, with-costs, with leave to the defendant to plead otherwise upon payment of costs. ,

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


author: Putnam, J.

text:
    Rufus Heaton, Resp't, v. Theodore M. Leonard, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Limitation—Acknowledgment—Check offered in compromise.
    A check offered by way of compromise, for less than the amount claimed and more than is conceded to be due, is not such an unqualified acknowledgment of the debt as is required to take it out of the statute of limitations.
    2. Same.

      Qumre, whether a check, which is merely offered and not accepted, is a writing within the meaning of § 395 of the Code.
    Appeal from judgment of special term, affirming judgment of a justice’s court in favor of plaintiff, the appeal from the justice’s court being certified to the supreme court on account of the disqualification of the county judge.

      Shedden & Booth (John H. Booth, of counsel), for app’lt; E. C. Everest, for resp’t.
   Putnam, J.

This action was brought in justice’s court on an alleged account amounting to $29.14. The defense asserted by defendant was a general denial and the statute of limitations. During the trial plaintiff withdrew one item of five dollars. The account accrued over six years before the commencement of the action, but within six years defendant offered plaintiff a check for $24.14, signed by him, in settlement of the claim, and although plaintiff refused to receive it, he claims it was a sufficient acknowledgment in writing to take the case out of the statute of limitations.

The testimony in the case was probably sufficient to sustain the judgment of the justice, unless the defense of the statute of limitations was well taken.

The question is whether the check given by defendant to plaintiff was a sufficient acknowledgment in writing to constitute a new and continuing contract, so as to prevent the statute of limitations from running against the claim in suit, within § 395 of the Code of Civil Procedure, the check being merely offered to plaintiff, and not delivered, in consequence of his refusal to accept it.

Prior to the Code of Procedure and the present Civil Code, it was held that to revive a demand barred by the statute there must be an express promise to pay either absolute or conditional, or an acknowledgment of the debt as subsisting, made under such circumstances that such a promise may be fairly implied. Wakeman v. Sherman, 9 N. Y., 91; Bloodgood v. Bruen, 8 id., 362; Sands v. Gelston, 15 Johns., 519.

Under said Codes the same acknowledgment has been held necessary to take a case out of the operation of the statute of limitations as before, except that the acknowledgment must now be in writing. Shapley v. Abbott, 42 N. Y., 447.

The check, however, which the plaintiff claims is a sufficient acknowledgment in writing to save his claim, appears by the evidence to have been tendered by the defendant in the way of a compromise. Defendant testified that he told plaintiff when he tendered the check' that it was more than he (defendant) owed him (plaintiff). This is not contradicted, plaintiff testifying that defendant did state “it is more than I owe you.” It does not appear how much greater defendant claimed the amount of the check was than the sum for which, in fact, he was indebted to plaintiff. It seems, therefore, that the amount due plaintiff was in dispute. The check was offered in the way of a compromise, for less than the amount claimed by plaintiff, and more than defendant conceded due, and hence was not such an unqualified acknowledgment of the debt as required by the authorities. Allen v. Webster, 15 Wend., 288-289; Sands v. Gelston, 15 Johns., 511; Creuse v. Defiganiere, 10 Bos., 122.

It is also doubtful whether under the circumstances the check can be deemed “ a writing ” within the meaning of § 395, supra. It was offered by defendant to plaintiff, but not received, and hence never had any legal inception or delivery. It was the same as if the defendant, after writing the check, had left it in his check-book. Many cases might be cited where debts have been revived by letters or writings delivered to the creditor or his agent, and in certain cases to third persons. But my attention has not been called to any authority holding that a check or-paper written, but never delivered to either the creditor or any other person, a paper that never had any legal inception, was “ a writing ” within § 395, supra. In De Freest v. Warner, 30 Hun, 94, the written acknowledgment was contained in a deed delivered to and accepted by the grantees. In Manchester v. Braedner, 107 N. Y., 346; 12 St. Rep., 263, the defendant delivered to the plaintiff orders on third persons. As if in this case the check had been delivered to and retained by plaintiff. In McCahill v. Mehrbach, 37 Hun, 504, the defendant sent a letter to the plaintiff acknowledging the debt. In Morrow v. Morrow, 12 Hun, 386, the executor inserted in the inventory sworn to by him and filed with the surrogate a note he had theretofore executed to his tes • tator. In Anderson v. Subley, 28 Hun, 16, the parties executed an agreement to arbitrate, and on such arbitration to waive the statute, of limitations. The defendant afterwards revoked the arbitration. Many other similar cases might be referred to. In all that I have examined the letter, paper or writing held to be “ a writing ” sufficient to prevent the operation of the statute of limitations had been delivered to some person. It was not a paper merely offered by the debtor, and which in fact had never left his possession.

I am in doubt, therefore, whether the check in question, which was merely offered and not accepted, was “ a writing ’’ within the meaning of § 395 of the Civil Code. But for the reason first stated, the judgment should be reversed, with costs.

Math am, P. J., and Herrick, J., concur.


text:
    George D. Clark, App'lt, v. William Hooper, Ex'r of John Woodward, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Replevin—Undertaking eor return of chattel in justice’s court— Justification of sureties.
    An undertaking for the return of a chattel given in pursuance of § 2925 of the Code does not require an affidavit of justification of the sureties to be subjoined thereto at the time of filing or before the return day of the summons, as the sureties are required to justify on the return day. The undertaking has no effect, no proceedings can be taken thereon, nor can the same be allowed until that time.
    2. Same—Code, § 812.
    The provisions of § 812 of the Code have no application to the under taking required by § 2925.
    Appeal from judgment dismissing the complaint, with costs.

      John H. Cunningham, for app’lt; Robert Dornburgh, for resp’t.
   Putnam, J.

This action was brought under- the provisions of § 2928, Civil Code. Defendant’s testator was a constable of Ticonderoga, Essex county, and, as such, on November 6, 1886, replevied a colt from the plaintiff by virtue of a summons, affidavit, undertaking and requisition in an action in justice’s court. The summons was returnable on November 13th.

On the 12th of November, plaintiff filed with the justice a notice that he required a return of the chattel replevined, also an affidavit that- he was the owner of the same, and an undertaking for $400, with two sureties, duly acknowledged.

No question was made upon the trial as to the proper form of such papers. The undertaking was not accompanied with any affidavit of justification of the sureties as required by § 812, Civil Code, nor was such undertaking approved by said justice.

On the 13th day of November, the return day of the summons, the parties appeared before, said justice, and the plaintiff in the replevin suit took the proper objection to the sufficiency of the undertaking without such affidavit to be effectual for the return of the property replevied, which objection was overruled. The defendant in such replevin suit offered sureties to justify and they were examined against the objections and exceptions of plaintiff in that suit, and they made the affidavit showing that they were each residents and freeholders in said county, and were" worth the sum of $400 over and above all liabilities that they owed, or had incurred, and exclusive of property exempt by law from levy and sale.under execution. Said sureties were then further sworn and examined, and the justice approved of the sureties to the undertaking, and allowed the same, and wrote his approval and allowance upon the undertaking. On the same day, November 13th, the defendant’s testator had notice of such allowance, and the plaintiff herein (the defendant in said replevin suit) demanded the said colt, and that the same be delivered to him. Defendant’s testator refused to deliver said colt to the plaintiff and delivered it to the plaintiff in said replevin suit.

It will be seen by the abbve statement that the only question for our consideration is whether the undertaking, which the plaintiff in this action (the defendant in the action before the justice) gave in pursuance of § 2925, Civil Code, required the affidavit of justification prescribed by § 812, Civil Code, to be subjoined thereto when filed with the justice, and his approval thereon at that time, as held by the trial judge, or otherwise.

It is apparent that such an affidavit and approval, if required, > can serve no useful purpose. Under the provisions of the statute the undertaking may be filed at any time before the return day and the sureties are required to justify upon the return of the summons, and it is at that time that the justice has authority to allow the undertaking. The undertaking has no effect, no proceedings are taken thereon, nor can the same be allowed until the return day of the summons. It would seem a useless ceremony, therefore, to require an affidavit of justification on the undertaking when filed, inasmuch as the justice cannot act in the matter until the return of the summons and the sureties are required to then justify.

Section 2925, supra, requires an undertaking similar in all respects to that required by § 1704, Civil Code. ■ Judge Rumsey, in ■ his valuable practice, holds that an undertaking given under § 1704 does not require an affidavit of justification by the defendant’s sureties to be delivered to the sheriff; that the only requirement is, that the sureties shall afterwards justify pursuant to the provisions of | 1705. 3 Rumsey’s Prac., 191.

Nor, in our judgment, do the requirements of § 812 as to the justification of sureties apply to the undertaking required by § 2925, supra. The former section should not be deemed applicable for the reason that the latter provides for the personal attendance of the sureties before the justice on the return of the summons and their justification at that time, and §§ 2925 and 2926 evidently contemplate an allowance of the undertaking after such justification. In other words, the provisions of § 812 as to an affidavit of justification by the sureties do not apply, because other provisions are made for such justification in §§ 2925 and 2926.

In cases where no justification of the sureties is required unless an exception to their sufficiency is taken, there is a propriety in requiring an affidavit of justification to be appended to the undertaking when filed. But under § 2925 the sureties are required to justify on the return day of the summons before the justice and in the presence of the parties, without any exception. Proof of the sufficiency of the sureties is then made, and the justice then allows the undertaking. Therefore, a prior affidavit is not required. See 3 Wait’s Law and Prac., 5th ed., 219.

Were it otherwise, however, if there should have been an affidavit of the sureties appended to the undertaking in question when filed, yet, as we have seen, the defect was not material. The affidavit, as above suggested, could serve no useful purpose, and, therefore, the defect was one that might properly be disregarded, pursuant to the provisions of § 729, Civil Code. Or the justice could properly allow an affidavit of justification to be appended to said undertaking on the return day, as he did, under the authority of § 730, Civil Code. These sections apply to justice’s courts. Section 3347, Civil Code, subd. 6. .

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

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


text:
    Samuel T. Guilford, Resp't, v. Cynthia Crandall, Impl'd, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Foreclosure—Code Civ. Pro., § 1630.
    Section 1630 of the Code, prohibiting a foreclosure action where a judgment has been obtained for the mortgage debt, or any part thereof, unless an execution thereon has been returned unsatisfied, applies to a judgment obtained by confession.
    3. Same—Judgment by confession.
    To secure part of the purchase price of goods purchased of plaintiff by a firm of which defendant's husband was a partner, the firm gave a note and chattel mortgage on its stock, and a mortgage was also given bv defendant’s husband and herself on property owned by him. After plaintiff had realized on the chattel mortgage, the firm confessed judgment to plaintiff for a balance admitted to be due. Thereafter the mortgage was foreclosed, pursuant to an agreement that defendant should purchase the property and give a new mortgage for the same amount as the old one, which was done. An execution has been issued on the judgment, but not yet returned. Meld, that the debt which the mortgage in question was given to secure was the balance due for the purchase price of the goods sold by plaintiff to the firm, for which he also holds said judgment, and that, under § 1630 of the Code, as he has not exhausted his remedy on the judgment, he cannot maintain an action to foreclose the mortgage.
    Appeal from judgment of foreclosure and sale.

      King & Ashley (H. Prior King, of counsel), for app'lt; J. H. Bain, for resp’t.
   Putnam, J.

The firm of Crandall & Boynton, composed of William H. Crandall (husband of defendant) and Loren D. Boynton, on March 8, 1888, bought of plaintiff his stock of goods for $2,764.67, paying in cash $500, and securing the balance of the purchase price by the note of the firm for $764.67, and a mortgage of said Crandall and his wife (the defendant) on real estate owned by him..

On the 14th day of February, 1889, to further secure the same debt for the purchase price of said goods, Crandall & Boynton executed to plaintiff a chattel mortgage covering their entire stock, and also an assignment of all their accounts and choses in action. On the 6th of March, 1889, under said mortgage, plaintiff took possession of said stock of goods, and on the 29th of March sold the same, and on such sale bid them in himself for $1,140. The amount realized by plaintiff from said chattel mortgage and accounts does not clearly appear.

On the 10th day of April, 1889, Crandall & Boynton executed a confession of judgment to the plaintiff for $1,400, containing the following statement: “ This confession of judgment is for a debt or liability justly due to the said plaintiff, arising from the following facts: On the 8th day of March, 1888, the defendants purchased from the plaintiff goods, wares and merchandise, for and to a large amóunt, and upon which said purchase there is now due, owing and unpaid the sum of $1,400, and said sum is now justly due and owing from the defendants to the plaintiff therefor.”

The referee found that this statement executed after plaintiff had collected his chattel mortgage and accounts, sworn to by each of the members of the firm of Crandall & Boynton, should be deemed to represent the true indebtedness of said firm to plaint-' iff at that time, the balance due plaintiff for the purchase price of said stock of goods. He states in his opinion : “ From this it would clearly appear that these parties understood and had agreed that after all the money and property which plaintiff had received; had been applied, there still -remained an indebtedness from Crandall & Boynton to plaintiff on account of said purchase, the said sum for which said judgment was given. Plaintiff had at that time realized on the goods sold under the mortgage, and had realized on all property received, so far as appears, excepting the Monty judgment, which was paid in some months or more, afterwards.

“ It is quite evident from the testimony in the case and the facts and circumstances proved that this debt acknowledged by Crandall & Boynton in the confession of judgment was all the firm owed plaintiff at that date, and'that this judgment is as binding and conclusive on the plaintiff as it is upon the defendant therein is a proposition so plain as to need no argument”

The referee, therefore, determined that the balance due plaintiff for the purchase price of said goods was said sum of $1,400 less the amount of the Monty judgment, which was collected after said judgment was made.

I think the evidence sufficient to sustain the finding of the referee in this regard on the question of fact submitted to him, and that such finding could not properly be reversed on the facts.

At this time, therefore, there was due plaintiff $1,400, secured by a judgment by confession, and also by the mortgage executed by Crandall and wife on Crandall’s real estate. This mortgage plaintiff foreclosed, obtaining judgment May 18,1889, the amount reported due thereon being $1,607.50. The property was sold on July 9, 1889, and bid in by plaintiff’s attorney in the name of defendant for $1,450. The defendant thereupon executed the mortgage set out in the complaint for the amount of the prior mortgage and interest. The findings of fact of the .referee as to this transaction are as follows:

“48th. That the indebtedness of Crandall & Boynton men-1 tioned in said confession of judgment, and for which judgment was entered on said confession, was and is a part of the same indebtedness secured by the bond and mortgage dated March 8, 1888.”
“ 50th. That the consideration of the bond and mortgage mentioned in the complaint in this action was the indebtedness which ■Crandall & Boynton owed the plaintiff, and for which the bond and mortgage dated March 8, 1888, was given to secure, or a part thereof.”
“ 53rd. That said mortgage was foreclosed pursuant to an agreement between the plaintiff and the defendant that the attorney for the plaintiff would bid in the property for the defendant, Cynthia Crandall, and she was to give plaintiff a mortgage on the same property to secure the same, or a part of the same, indebtedness represented by the mortgage of March 8, 1888.”

These findings of fact are not excepted to by plaintiff, and must be deemed to establish the facts as therein stated and set out. I think also, that the determination of the referee is amply sustained by the evidence. The mortgage in suit being given for the amount of the old mortgage, instead of for the sum at which the property was bid off for, shows the intent of the parties that the indebtedness secured by the confession of judgment and prior mortgage should not be extinguished, but remain and be secured by the mortgage now sought to be foreclosed. The referee determined that the amount due plaintiff on said mortgage was the amount of said judgment less the sums collected since its confession. It was conceded that an execution on said judgment had been duly issued, and was not returned when the action was commenced.

Appellant claims a reversal because of the judgment entered in favor of plaintiff on the confession of Crandall & Boynton for the same debt secured by the mortgage in suit, and on which an execution has been issued and not returned.

By § 1680 of the Civil Code it is provided that “ where final judgment for the plaintiff has been rendered in an action to recover any part of a mortgage debt an action shall not be commenced or maintained to foreclose the mortgage unless an execution * * * has been returned wholly or partly unsatisfied.” It will be seen by the language above quoted that such judgment must be obtained on account of the mortgage debt or some part thereof, but need not be recovered on the bond or mortgage or against the mortgagor. Pattison v. Powers, 4 Paige, 550-551-549; and see Scofield v. Doscher, 72 N. Y., 494.

In this case it appears by the findings of the referee that the debt which the mortgage in suit was given to secure was the balance due plaintiff for the purchase price of the goods sold to Crandall & Boynton over the amount he had received from the chattel mortgage and accounts. To secure this he had a judgment by confession and the mortgage of March 31, 1.888. This latter was foreclosed and the property bid off in the name of defendant for $1,450. She did not pay this sum, but executed the mortgage in suit for the amount of the foreclosed mortgage. The foreclosure of the first mortgage and the sale to defendant might have operated to extinguish the claim which plaintiff held against Crandall & Boynton and the said judgment. But it was competent for plaintiff and defendant to make an agreement that such foreclosure and sale should not have that effect, as they did. The agreement in fact made was that the mortgage which plaintiff held made by Crandall and wife should be changed for one of the same amount made by defendant. It was an exchange of securities, leaving the original indebtedness unpaid. All the parties interested consenting, such an agreement is valid.

It is suggested by respondent that § 1630, supra, does not apply to a judgment by confession ; that only a final judgment in an action is referred to; and that under § 1273, Civil Code, a judgment entered on a confession is one recovered without action. The language of the former statute was as follows: “ If it appear that any judgment has been obtained in a suit at law for the moneys demanded by such bill, or any part thereof, no-proceedings shall be had in such case unless to an execution against the property of the defendant, * * * the sheriff shall have returned that the said execution is unsatisfied, etc.” 2 R. S., 191-192.

This provision of the Revised Statutes, which it will be seen is similar to § 1630, supra, was held to prevent a foreclosure of a mortgage where a judgment by confession had been obtained for a part of the - mortgage debt. Pattison v. Powers, 4 Paige, 549; Lovett v. German Reformed Church, 12 Barb., 67.

There seems to be no reason why the provisions of the Civil Code that a foreclosure action should not be maintained when a final judgment for the plaintiff has been rendered in an action to recover the mortgage debt, or any part thereof, should not apply to a judgment obtained by confession as well as by action. The object of the statute is to compel the plaintiff to exhaust his legal remedies before coming into equity, and hence § 1630, supra, should apply as well to a judgment by confession as if rendered in an action. Section 1273 of the Civil Code provides that a judgment by confession “may be docketed and enforced against property in the same manner and with the same effect as a judgment in an action rendered in the same court; and each provision of law relating to a judgment in an action, and the proceedings subsequent thereto, apply to a judgment thus taken.” I think under this section the provisions of § 1630, supra, may be deemed to apply to the judgment by confession entered in favor of plaintiff and against Crandall & Boynton for the debt secured by the mortgage in suit, and hence plaintiff having failed to exhaust his legal remedy on the judgment cannot maintain this action.

Judgment reversed, and new trial granted, costs to abide the «vent

Herrick, J., concurs.


text:
    Ephraim Bond, App'lt, v. The New York Central & Hudson River Railroad Co., Resp't.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Negligence—Railboad cbossing—Gates.
    A traveler approaching a railroad crossing guarded hy gates is not required to exercise the same vigilance in looking and listening as when the approaches are not so guarded.
    S. Same.
    One S., on approaching defendant’s tracks, waited for a train to pass, when the gates were raised and the gate tender signalled him to come on. His view was obstructed by a train, and, on attempting to cross, his wagon was struck by a fast express train, and the box thereof thrown upon plaintiff, who was walking on the sidewalk. Held, that it being a descending grade, it was not necessarily negligent for S. to go on the_ track on a trot, nor, if on first seeing the train close upon him, he did not act with the best judgment in whipping up his horses, ■ could he be held negligent as matter of law, and that a direction of a verdict for defendant was error.
    Appeal from judgment in favor of defendant, entered on verdict directed by the court.
    Action to recover for damages, alleged to have been caused by defendant’s negligence. One Struing, who was driving an empty coal wagon, approached defendant’s tracks at a crossing and waited for a freight train to pass. After it had passed, the gate-man raised the gates and signalled to Struing to come on, which hé did at a trot, the grade being a descending one. When he arrived on the third track he discovered a train approaching, and the gateman called to him to stop. Struing whipped up his horses and had almost crossed when the train struck the hind end of the wagon, crushed the wheels and threw the box upon the plaintiff, who was walking on the sidewalk, injuring him severely.

      R. J. Sanson, for appl't; C. D. Prescott, for resp't.
   Putnam, J.

The questions involved in this case are so well settled and have been so an opinion is unnecessary.

The trial court having directed a verdict for defendant, on this appeal plaintiff is entitled to the most favorable construction of the evidence. Rehberg v. Mayor, 91 N. Y., 141.

There was testimony given tending to show negligence on the part of the defendant in the management of its gates, which, if submitted to the jury, would have sustained a verdict for the plaintiff. Kane v. N. Y., N. H. & H. R. R. Co., 31 St. Rep., 741; 132 N. Y., 160; 43 St. Rep., 494; Phillips v. N. Y. C. & H. R. R. R. Co., 25 id., 91.

If contributory negligence on the part of Struing, the driver of the coal wagon, constituted a defense to plaintiff’s action, as claimed by defendant, the question as to such negligence was, under all the circumstances of the case, one of fact for the jury, and not one of law for the court.

A traveler approaching a railroad crossing guarded by gates, as was the crossing in question, is not required to exercise the same vigilance in looking and listening as when the approaches are not so guarded. Kane v. N. Y., N. H. & H. R. R. Co., 132 N. Y., 160; 31 St. Rep., 741.

It appears that when Struing approached the crossing the gates were down and he stopped his team. A train passed and the gate tender raised the gates, at the same time signalling Struing to cross. Struing’s view was obstructed to the west by buildings, and by a train standing on the track. Being invited by the open gate, and by the gate tender, to cross when he did, and it being a descending grade, it was not necessarily negligent for Struing to. allow his team to go on to the track on a trot. Nor, if Struing, when he first saw the approaching train so nearly upon him, and was called to act suddenly in the fact of great danger, did not act with the best judgment in whipping up his horses,can he be held as a matter of law negligent Twomley v. C. P., N. & E. R. R. R. Co., 69 N. Y., 158.

It is only in rather exceptional cases that the question of contributory negligence can be taken from the jury. Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y., 364; 22 St. Rep. 697.

Judgment should be reversed, and a new trial granted, costs to abide the event

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


author: Daly, Ch. J.

text:
    Ferdinand Mayer, Pl'ff, v. The Temple Beth El, Def't.

      (New York Common Pleas, Special Term,

      Filed February 3, 1893.)

    Religious corporations—Right of pbwholdbr to pbw in new edifice ON REMOVAL.
    Upon the sale of a house or place of worship, and the removal of a religious society therefrom, it is the duty of the trustees to tender to a pew-holder a pew in the new edifice corresponding in location to that which he owned in the former building, upon the payment of such a sum as, in equity, he ought to pay if the cost of the new structure exceeds the proceeds of the sale of the old property together with the sums in the treasury of the society; and if they fail to allot him such a pew, he has a cause of action to be indemnified in damages for his loss.
    Demurrer to complaint

      W. G. McCrea, for pl'ff; Kurzman & Frankenheimer, for def't.
   Daly, Ch. J.

The facte admitted by the demurrer are: that the plaintiff was the owner of pew number 24 in the Temple Beth El, a religious edifice on the corner of Sixty-third street and Lexington avenue in the city of New York, which pew he had purchased from the defendant corporation about October 1, 1874, for the sum of $3,050; that he continued to be such owner until the sale of the said edifice by the corporation, under leave of the court, in the year 1891; that, with the moneys obtained from the sale, the corporation purchased property on the corner of Fifth avenue and Seventy-sixth street, and erected a house of worship thereon, corresponding with the former building as to the interior plan and arrangement of pews; that the trustees and officers of defendant, in order to induce the members of the congregation and pew holders to consent to the said sale and erection of a new house of worship, represented and agreed that each owner, lessee or holder of a pew in the old building should, upon the completion of the new house, be allotted and receive a pew therein corresponding in location, as nearly as might be, with the pew so owned and held in the old building; that pew number 453 in the new edifice corresponds as to location with plaintiff’s pew in the old edifice, and is worth $4,300; that plaintiff was entitled to said pew, but the trustees or other officers of defendant, assuming to act in its behalf, wrongfully allotted to plaintiff another pew which does not correspond with the pew that he formerly owned, but is in a less desirable location, and, as plaintiff is informed and believes, has no present market value; and that pew number 453 has been sold or leased for about $4,500, and possession thereof delivered to the purchaser; and plaintiff demands judgment for $3,050, thy value of his pew in the former edifice, and that his claim be declared a lien upon the church property.

It would seem that the so-called agreement, which the plaintiff alleges was made between the corporate officers and the pewholders as to the allotment of pews in the new edifice, is no more than the duty to which, in equity, the trustees of a religious corporation would be held under the circumstances. When a church edifice is destroyed by fire or any casualty, or becomes unfitted for use from age, or is demolished from necessity, the strictly legal rights of the pewholder are gone, but in a new edifice built to replace the former he has an equitable claim to be reinstated in a position corresponding to his former one, upon bearing his fair proportion of the expense, and if his rights in that respect are disregarded he is entitled to compensation. “The pewholders 'who shall be deprived of their rights in the pews must be content with a just and adequate compensation; * * * generally, no expense of this kind would be incurred, and a seat or right of occupancy during public worship, which was all that any one possessed, would be provided • and if as good and equally commodious and comfortable, although in different form, no claim for damages could be sustained.” Cooper v. First Presbyterian Church of Sandy Hill, 32 Barb., 222. “Let the trustees go on and prostrate the present old building, leaving the complainant to his legal and equitable rights with regard to a pew in the new building.” Heeney v. St. Peter's Church, 2 Edw. Ch., 608.

In the case of Trinity Church, cited by Hoffman in his “ Ecclesiastical Law,” holders of pews in the old edifice were allowed an abatement on the price of new pews by express arrangement, and he says of it: “Let it be granted that this course was not in consequence of a legal obligation, yet it is so strong in equity that it has been made an express statutory provision in the state of Maine;” and he quotes Tyler, American Ecclesiastical Law, § 339. “ If the meeting house is altered or rebuilt the appraisers, after the work is completed, must assign to pewholders pews to conform, as near as practicable, to those previously held by them;” and he continues: “The new edifice being completed, the rights are so far revived as that the pewholder should be entitled to occupy, upon the same terms as before, a pew in the same position as his former pew, or as nearly conformable to that position as can be.” * * * “ The trustees replacing pews destroyed would, in equity, be bound to appropriate them to the holders of the destroyed pews, they paying the cost of reparation.” Hoffman’s Ecc. Law, 250.

The same equitable view found early expression in the statutes of Massachusetts, which, indeed, in many respects, are said to be only declaratory of the common law, Cooper v. First Presbyterian Church of Sandy Hill, above; and so it has been there held: “ If the plaintiff has suffered in his property by the destruction of the old meeting house and the erection of a new one, he can have his action on the case, in which he will recover his reasonable damage ; or, perhaps, he may hold a property in the new pews corresponding with his property in the old ones by submitting to his share of the expense.” Daniel v. Wood et al., 1 Pick., 102. “A parish may, when necessary, take down the house and rebuild on the same ground, or may alter the form and shape of it, for the purpose of making it more convenient. If, in doing this, the pews are destroyed, the parish must provide an indemnity for the pewholders oh just and equitable principles.” Gay v. Baker, 17 Mass., 435. The parish may take down their meeting house in order to rebuild, either as a matter of necessity or of expedience. In the former case they are not, and in the latter case they are bound to indemnify the pewholders. Howard v. First Parish in North Bridgewater, 7 Pick., 138. “ When, by reason of altering or enlarging a meeting house, the pew shall be destroyed, means should be provided for indemnity.” Wentworth v. First Parish in Canton, 3 Pick., 344. “A pew owner cannot be despoiled of his property.” He is entitled to compensation, except when the house has become ruinous and unfit for use. Kimball v. Second Congregational Parish in Rowley, 24 Pick., 347. “If a change is made merely for conience, as if A. owns the two front pews of the church edifice and the vestry determined to extend the chancel, by reason of which improvement he is deprived of his pews, he shall be entitled to indemnity, either by having assigned to him new pews or by pecuniary compensation.” Humphry’s Law of the Church, 53. And in this state the same rule has been stated, as appears from the cases first above quoted and others. “ If, for convenience, or from expediency, and not from necessity, the pew is destroyed, the owner has a right to indemnity.” Voorhees v. Presbyterian Church at Amsterdam, 17 Barb., 103. “ If the change in the internal arrangement is merely expedient, or matter of convenience to the society, still the trustees, on behalf of the corporation, may legally direct the alteration, and the pew holders who shall be deprived of their rights in their pews must be content with a • just and adequate compensation. * * * He has no exclusive right in the soil below the pew or in the timbers or materials of which the house or any of its parts are composed, and when this use is destroyed, his right, if any, remains to him as a right of indemnity or compensation for the injury. If the authorities settle anything, they demonstrate and establish this conclusion.” Cooper v. First Presbyterian Church of Sandy Hill, supra.

It would seem, therefore, from the cases, that it was the duty of the trustees to tender to the pewholder a pew in the new edifice corresponding in location to that which he owned in the former building, upon the payment of such a sum as, in equity, he ought to pay if the cost of the new structure exceeds the proceeds of the sale of the old property together with the sums in the treasury of the society; and if they failed to allot him such a pew, it would seem that he should be indemnified in damages for his loss. The complaint, therefore, states a good cause of action, and the demurrer should be overruled, with leave to the defendant to answer in twenty days on payment of costs.


author: Lawrence, J.

text:
    The People ex rel. Peter Conlin v. James J. Martin et al. The People ex rel. Alexander S. Williams v. James J. Martin et al.

      (Supreme Court, Chambers, New York County,

      Filed February 3, 1893.)

    Municipal cobpobations—Police—Seniobity op insfectobs.
    Where two inspectors of police are appointed on the same day, the one whose resolution of appointment is first passed is entitled to precedence over the other, although his oath of office is taken last, so long as he does nothing to work a forfeiture, and in case of a vacancy in the office of senior or chief inspector, is entitled to succeed to that office.
    Applications for writs of mandamus.

      Charles W. Dayton, for relator Conlin; George Bliss, for relator Williams; William H. Clark, for resp'ts.
   Lawrence, J.

In each of these applications the relator asked for a writ of peremptory mandamus, compelling the respondents, as commissioners of the board of police of the city of New York, to recognize and install him as chief inspector of the police force of said city, from and after the 1st of October, 1892.

Section 265 of the consolidation act, chapter 410 of the Laws of 1882, prescribes “ that the police force shall consist of one superintendent of police, four inspectors of police, captains of police, not exceeding in number one to each fifty of the total number of patrolmen, sergeants, not exceeding four in number to each fifty of the total number of patrolmen, etc."

Section 271 of said act provides that sergeants of police shall be selected from among patrolmen assigned to duty as rounds-men, captains from among sergeants, and inspectors from among captains."

Chapter 137 of the Laws of 1888 provides, among other things, that “ the senior inspector shall be known as chief inspector, and shall have charge of the detective bureau of the police department of said city, and in the absence of the superintendent of police shall discharge all the duties of that office, and his salary shall be $5,000 per annum, payable in the usual manner, but nothing in this section shall be construed as affecting the civil service laws now in operation in this state.”

It is under this amendatory law that the controversy which is the subject of determination upon these applications has arisen. It is conceded that prior to the 1st of October, 1892, Henry V. Steers was the senior inspector of the police force, and that on that day he was retired from said force, and each of the relators claim that he, at the date of the retirement of Steers, was the senior inspector, and became, under the provisions of chapter 137 of the Laws of 1888, above referred to, chief inspector, in the place of said Steers.

There is very little controversy in regard to the facts.

On the 9th day of August, 1887, there were two vacancies in the office of the inspector of police, and on that day each of the relators was appointed an inspector of police by resolution of the commissioners. The resolution appointing Peter Conlin to be inspector was passed first by the board. The resolution appointing Alexander S. Williams as inspector was then adopted, and the entry upon the records of the police commissioners shows that such was the fact. It also appears that each of the relators took the oath of office on the 10th day of August, 1887, the relator Williams taking such oath at half-past nine o’clock A. M., and the relator Conlin at 11:40 A. M.

It appears from the affidavits submitted on behalf of Conlin that, on the 9th day of August, when he was appointed, he was absent on leave at Moriches, Long Island, and that having received a telegram informing him of his appointment, he took the first train for New York on the morning of the 10th of August, 1887 ; that he reported immediately upon his arrival at police headquarters, and upon so reporting was instructed by the then superintendent of police to proceed to the office of the clerk and there take his oath of office as inspector of police, which he immediately proceeded to do.

It is obvious that the resolution appointing Conlin to the office of inspector preceded in time the resolution appointing the relator Williams, and it is also obvious that the board was acting strictly within its legal powers in selecting each of the relators as an inspector. . § 271'of the consolidation act.

The fact that the relator Williams was an older captain in service than Conlin did not require the commissioners to make him the senior inspector. Section- 271 provides that the inspector shall be selected from among the captains, but it does not require that the commissioners shall appoint a senior captain to a senior inspectorship, nor preclude them from promoting a younger captain over an older captain to such office.

The question, therefore, which is presented in this case is simply whether the fact that-the relator Williams took the oath of office two hours and ten minutes before the relator Conlin entitles Williams to the position of senior inspector.

My examination of the authorities leads me to the conclusion that the relator Williams cannot consistently make such claim. Conlin was first selected as inspector, and his appointment, so far as the commissioners were concerned, was complete upon the passage of their resolution. Marbury v. Madison, 1 Cranch, 137. Unless he committed some act intermediate the time of his appointment and the time of taking the oath, forfeiting the office, Conlin cannot be ousted of the priority in rank which the passage of the resolution gave to him. He certainly was guilty of no laches in taking the oath of office. Section 270 of the consolidation act prescribes that “ each member of the police force shall, before entering upon the duties of his office, take an oath of office and subscribe the same before any officer of the police department who is empowered to administer an oath.” That oath was taken by Conlin on the morning succeeding the date of the resolution appointing him, and as soon as he could reach the city from Long Island, where he was absent on leave. When that oath was taken, Conlin had complied with the statute and necessarily became inspector as of the date of the passage of the resolution. Foot v. Stiles, 57 N. Y., 399; Matter of Kendall 85 id., 302; Cronin v. Gundy, 16 Hun, 523; Horton v. Parsons, 37 id., 45.

In commenting upon the cases of Matter of Kendall, 85 N. Y., 302, and Fool v. Stiles, 57 id., 399, Finch, J., in delivering the opinion of the court in the case of The People ex rel. Wood v. Crissey, 91 N. Y., 635, says: “ These cases decide that the officer elected, and who by the certificate of the proper authority to that effect is or has become duly qualified to hold office, is the rightful officer, although holding by a defeasible title, when he does not take the oath of office. That omission may work a forfeiture, but unless and until such forfeiture is adjudged he remains the rightful officer as if he. had taken the proper oath.”

In this case, as has already been stated, the appointment of Conlin, so far as the action of the commissioners was concerned, was complete on the 9 th of August, 1887, and his appointment was prior to that of the relator Williams. He took the oath of office promptly and did nothing to work a forfeiture or to defeat his title. It is said, however, that the law does not take notice of the fractions of a day, and that, as the appointments of Gonlin and Williams were made at the same meeting of the board of police commissioners, Gonlin cannot successfully maintain that his appointment is to be regarded as being prior to that of Williams.

In commenting upon this principle of law in the case of the National Bank v Burkhardt, 100 U. S., 689, the court says : “For most purposes, the law regards the entire day as an indivisible unity, but when the priority of one legal right over another depending upon the order of events occurring on the same day is involved this rule is necessarily departed from”

In volume 5 of the American and English Encyclopedia of Law it is said: “The general rule, however, that the law admits no fractions of a day, is subject to numerous exceptions. It is generally regarded as a mere fiction, and if by resort to such fiction manifest injury and wrong will result, the truth and fact in point of time may always be averred and proved.”

In the Matter of Richardson, 2 Story U. S. Circuit Court Reports, 571, Judge Story says: “I am aware that it is often laid down, that in law there is no fraction of a day, but this doctrine is true only sub modo, and in a limited sense where it will promote the right and justice of the case. It is mere legal fiction, and, therefore, like all other fictions is never allowed to .operate against the right and justice of the case. On the contrary, the very truth and facts in point of time may always be averred and proved in furtherance of the right and justice of the case, and there may be even a priority in an instant of time, or in other words, it may have a beginning and an end. * * * Indeed, I know of no case where the doctrine of relation, which is á mere fiction of law, is allowed to prevail unless it be in furtherance and protection of rights pro bono publico.”

Gonlin having the prior appointment, and having taken the oath of office, without any laches on his part, could not be divested of his title by the fact that Williams took the oath of office two hours and ten minutes before he did, it being shown that he was absent from the city on leave. The determination of the commissioners upon that point could not be nullified by the result of a race between the two appointees in taking the official oath.

To recapitulate, lam of the opinion, first, that as the resolution appointing Gonlin preceded that appointing Williams, the former is to be regarded as having been selected by the commissioners for the senior inspectorship. Second. That Gonlin did no act which worked a forfeiture of his appointment or of the priority accorded to him by the commissioners intermediate the passage of the resolution and the taking of the oath of office. Third. That the fact that Williams took the oath of office shortly before Gonlin, on the. same day, does not nullify Conlin’s right tobe regarded as the senior inspector.

For these reasons the motion made by the relator Gonlin must be granted, and that of the relator Williams denied.


author: McAdam, J.

text:
    John J. Tait, Pl'ff, v. Annie Tait, Def't.

      (New York Superior Court, Equity Term,

      Filed April 24, 1893.)

    Marriage—Fraud—Representations as to pregnancy.
    A marriage cannot be set aside on the ground that plaintiff was induced to enter into it by the representations of defendant that she was pregnant by him, which representations he believed to be true, but which were, in fact, false.
    Bill filed to have marriage contract declared null on the ground of fraud.

      Jacob Monheim, for pl'ff.
   McAdam, J.

The plaintiff bad been carnally intimate with the defendant, who was then a widow. To induce him to marry her she represented that she was pregnant by him, and that the birth of the child would bring upon the three shame and disgrace, whereupon, to avoid the humiliation, he married her, believing the representation to be true. The marriage was never consummated by cohabitation. The plaintiff now asks that the marriage contract be annulled on the ground of fraud. The defendant makes no defense. The most important contract of life is marriage, the essence of which is consent, and where this is obtained by fraud it goes to the root of the obligation and avoids it. The party guilty of the wrong cannot take advantage of it, while the other party, if he chooses, may waive his objection and make the marriage good. The fact of the marriage not having been consummated has, therefore, in many instances influenced the court in favor of setting it aside. Bish. on M. & D., 4th ed., § 214.

What ought to be done in this case ? The plaintiff, by his immoral act, put himself in a position where he could not tell whether the defendant was or was not in the condition she described; in other words, he put himself, by his own act, into her power. The question presented came before the court in Hoffman v. Hoffman, 6 Casey, 417, where it was held that if a woman pretends to a man that she is pregnant by him, and she is not pregnant at all, but he marries her, believing her representation to be true, he cannot have the marriage set aside for this fraud. This case is conclusive against the present application. In Jackson v. Winne, 7 Wend., 47, it was held that the circumstance of a party being under arrest as the putative father of a bastard child is not enough to avoid a marriage on the ground of fraud or duress, and in a somewhat similar decision, Scott v. Shufeldt, 5 Paige Ch., 43, the fact that the child, when born, turned out to be black instead of white, the color of the parents, did not seem to have much weight in the determination of the legal proposition involved. See, also, Crehore v. Crehore, 97 Mass., 330; Foss v. Foss, 12 Allen, 26; Scroggins v. Scroggins, 3 Dev. N. C. L., 535; Barden v. Barden, id., 548. The fraud practiced on the plaintiff was the outcome of his illicit relations with the defendant, and, while his “ marriage was a failure ” from the time of its ceremonial, the result may be imputed to concubinal origin rather than to any imperfection in the institution itself.

For these reasons the court declines to grant the decree applied for.


text:
    Phelim O'Neill et al., Pl'ffs, v. James J. Breese et al., Def'ts.

      (New York Superior Court, Equity Term,

      Filed May 2, 1893.)

    Easement—Eight op tenants op basement to light through floor lights above.
    The tenant of the basement of a building has an easement of light through the floor lights in the floor above him, and the tenant above him has no right to cover the floor lights with matting or carpet and thus shut off his light.
    Action to restrain defendants from.covering the floor lights in their premises so as to prevent the light from reaching plaintiffs’ premises in the basement.
    The lot known as No. 130 West Twenty-third street belongs to one Goldberg. It is twenty-five feet in width and 100 feet deep. There is erected thereon a four-story brick building, running from the front to a depth of forty-eight feet. It is known as the main building. Connected therewith, and extending back to almost the entire depth of the lot, is an extension, consisting of one-story and basement. The first floor is divided into what is called the parlor, and the rear parlor extension. The basement in the main building and that in the rear extension is divided by a thin partition, with two doors opening into the rooms.
    The plaintiffs use the front basement as a saloon, and the rear extension as a billiard room. The contention concerns the right to light in the rear extension. Over the parlor extension are two skylights, which reflect their rays into the room on that floor. In the rear extension are floor lights, intended, as their name implies, to convey the light from the parlor extension through the floor into the basement below. Goldberg, the owner, gave a lease of the basement to the plaintiffs, and a lease of the entire parlor floor to the defendant, Morse, who sub-let the extension to the defendant, Breese.
    The leases were delivered almost simultaneously, and the respective terms demised commenced at the same time. After the defendant, Breese, moved into the rear parlor extension, he covered the entire floor with carpet matting, and in that manner prevented the light from reaching the basement through the floor lights. The plaintiffs, by their bill in equity, seek to enjoin the continuance of this alleged wrong.

      Jeroloman & Arrowsmith, for pl'ffs; Freling H. Smith, for def't Breese.
   McAdam, J.

An easement is a without which the owner of one tenement has a right to enjoy, in respect of that tenement, in or over the tenement of another person, by reason whereof the latter is obliged to refrain from doing anything on his own tenement to the detriment of the former. Goddard on Easements, Banks’ Ed. of 1871, p. 2. The right to the free passage of light is classed among these privileges and ranks with other easements. The right of property entitles the owner to so much light and air as fall perpendicularly on his land, and this, when transmitted through his building according to its peculiarities of structure, and distributed to its different parts, may make them desirable to tenants for residences or trade purposes. Whether a particular tenement is light or dark may have influenced the tenant to hire, and it will not do after he has contracted with reference to these existing advantages to hold that he has acquired no right to them, as an incident of the hiring in the nature of an easement, because not so specifically designated in his lease.

While it is true that easements are generally acquired by grant or prescription, it is equally true that they may be gained by contract, although not specified, where, from the nature of the subject matter, it is evident that the parties intended that conveniences permanently constructed for the distribution of light and air should form an inseparable incident of the main agreement.

Such easements may be implied from the very nature of the subject matter and demise, the two being considered together, and, unless the lease contains some restriction upon the right, it will be assumed that the tenant shall possess his portion of the tenement in the manner and with the same beneficial rights as were then in and belonging to it.

The interest thus acquired may be termed the dominant tenement, the other the servient, and the duty imposed on the latter is of that passive character which merely requires the occupant of that part to refrain from doing any act of a positive character calculated to produce undue injury to the right of the occupants underneath. The defendant Breese, as tenant of the rear parlor extension, acquired an undoubted right to light from the two skylights over his room, and the plaintiffs, as tenants of the basement, gained the right to whatever light they might obtain through the floor lights.

The easements in both cases were apparent, and, therefore, passed, whether named in the demise or not. Wood on L. & T. {2d ed.), 429. The very name “ floor lights ” was notice that the •occupants underneath were to receive whatever rays of light they might reflect, and, however indifferent the light reflected below might be, the tenants above had no right arbitrarily to cover the floor lights with matting and in that manner shut out the light entirely. The doctrine sic utere tuo ut alienum non Icedas applies to lights as well as to solid or tangible property, Whart Max., and the occupant of the servient tenement was bound to use it in a manner that would not infringe upon the rights of the tenants on the floor below. . The owner could not lawfully have disregarded the rights of easement in the dominant tenement, and his tenants with notice thereof have no greater rights than he would have had if he had not rented the servient tenement. It is evident that when the owner erected the rear extension he intended that 1 the skylights should light the rear parlor, and that light should in turn be reflected through the floor lights into the basement below. This scheme of the building must have been apparent to anyone inspecting the building with a view to hiring, and the leases given were evidently made with reference to it, and this being the manifest intention of all the parties, no rule of law stands in the way of giving that intention full effect. In Spies v. Damm, 54 How. Pr., 293, this court enjoined the tenant of the store floor from covering the grating in front of his premises with a showcase, on the ground that it cut off the light from the tenant of the basement and infringed upon one of the rights or incidents of his demise. In Underwood v. Burrows, 7 C. & P., 26, it appeared that the plaintiff rented two rooms on the second floor of the defendant’s house. There was a water closet, knocker, skylight, etc. Subsequently the defendant took up the water closet and darkened the skylight, and plaintiff brought an action on the case. The defendant offered to show that nothing was said about these things at the time of the demise. Lord Abinger, C. B., rejected the evidence, saying they spoke for themselves; they were there when the rooms were rented, arid were accessories to their enjoyment, and the tenant had the right to have them remain, excepting they were specially excepted in the lease to him.

The same principle applies to the rights of tenants to use the yard, coal bins and other incidents of a tenement house, all of which are matters of common familiarity.

In Morgan v. Smith, 5 Hun, 220, the court held that “ the skylight constructed for the use of the store leased by plaintiff to the defendants was an appurtenance to the demised premises. The right to enjoy its use passed under the lease.” Other cases are to the same general effect The defendant, Breese, and his visitors, have the undoubted right to walk over the floor lights as part of the floor of the servient tenement, but he cannot cover these lights permanently with carpet or matting, so as to forever shut out the light that might otherwise find its way to the floor below, for this is clearly contrary to the spirit and intent of the demise under which he holds, and unlawfully infringes upon the rights of the plaintiffs as occupants of the basement. The defendant had no power to extinguish or impair the plaintiffs’ easement, which is a valuable right under protection of the law.

The plaintiffs are, therefore, entitled to a mandatory injunction, restraining the defendants from continuing the wrong complained of. Judgment accordingly, with costs.