text:
    Martin Hackett and ano., Resp’ts, v. James Stanley, Imp’ld, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1887.)

    1. Partnership—Who is a partner.
    One who participates in the profits of a business as profits, and not as a means of compensation for services, is a partner as to third persons, and is liable as such for debts.
    2: Same—Essential elements op.
    The essential elements of a copartnership, as far as the outside world is concerned, are a contribution to be'used for the general purposes of the business, and a participation in the profits as such.
    3. Same—Question when rights of creditors supervene.
    When the rights of creditors supervene, the question is, does an alleged partner by agreeing to participate generally in the profits as profits, expect to diminish the fund from which creditors are to be paid.
    4. Same—Liability of concealed partner.
    A concealed partner is liable upon contracts by or for the benefit - f the firm when he is discovered. Following L ggelt v. Hyde, 58 N. Y., 279, and Manhattan Brass Company v. Bars, 45 id., 797. Distinguishing Bichardson v. Hughitt, 76 id., 55; Curry v. Fowler, 87 id., 33, Eager v. Crawford, 76 id., 97; Burnett v. Snyder, 76 id., 344; Cassidy v. Hall, 97 id., 159.
    This is a reargument of an appeal from a judgment of the general term of the city court of New York, affirming a judgment in favor of plaintiffs after a trial before the court without a jury. The former appeal in this court was argued in November, 1886, and the judgment appealed from affirmed.
    The action is for materials and labor furnished and performed by plaintiffs in the fitting up an office for the use of defendants, as is alleged, in the business carried on by them as copartners. There is no actual dispute as to the labor performed and materials furnished, or the value thereof, but the defendant Stanley denies that he was the copartner of the defendant Gorham, and that any liability attaches to him on account of said alleged copartnership. It was proved on the trial that the defendants entered into the following agreement on Or about the twenty-third day of January, 1885:
    “ This agreement, made the twenty-third day of January, 1885, between Moulton W. Gorham, of the city, county and state of New York, party of the first part, and James Stanley, of the same city, county and state, party of the second part. Witnesseth :
    “That for and in consideration of the loan of seven hundred and fifty ($750) dollars from the said party of the second part to the said party of the first part, for use in the business of heating, ventilating, etc., for which said party of the first part has given unto said party of the second part his note at two years, with interest, bearing date of January 14, 1885, payment of which is secured by an assignment of said value in a certain $3,000 nolicy, numbed 36,888, in the Massachusetts Mutual Life Insurance Company, and also by a certain chattel mortgage bearing date January 23, 1885, and in further consideration- of services of said party of the second part in securing sales in said business, and for any further moneys he may, at his own option, advance for use in said business, the said party of the first part agrees to divide equally the yearly net profits of said business.
    “It is understood and agreed that said loan of seven hundred and fifty dollars is expressly for use in said business and for no other use whatsoever.
    “It is further agreed between said parties of the first and second part that any moneys either may advance for use in said business, that said money shall draw interest at six per cent, from the date advanced till its withdrawal—said withdrawal to be entirely at option of party advancing same.
    “It is further agreed by the said party of the second part, that the said party of the first part shall receive as a compensation for the management of said business, the yearly sum of $1,000, said compensation to be charged as an expense in said business.

      “It is further .agreed between said parties of the first and second part, that said party of the first part shall render unto said party of the second part, a quarterly statement of the condition of said business, and close the books of said business semi-annually; and also make an annual division of profits, as hereinbefore agreed, said fiscal year commencing February 12.
    “It is further agreed by said party of the first part, with the party of the second part, that any commissions that may accrue to said party of the first part from sales or purchases made in the course of said business, same shall become, and it is understood and agreed, shall be an asset in said business, subject to said division hereinbefore mentioned.
    “And it is further agreed between said party of the first and second part, that all expenses for the necessary papers shall be charged as an expense in said business.
    “In witness whereof, we have hereunto set our hands and seals this 23d day of January, 1885.
    “W. M. GORHAM. [l. s.]
    “JAMES STANLEY. [l. s.]
    “In presence of 0. L. Walker.”
    It was further proved that said agreement was in force between said defendant at the time of the performance of the labor, and furnishing of the materials for which the plaintiffs sued in this action, and the main question to be determined' upon this appeal is whether such agreement constitutes said defendants partners as to third parties.

      Alexander & Green, for app’lt; James G. Janeway, Sidney Ward, of counsel; Thomas ,C. Ennever, for resp’ts.
   Larremore, C. J.

When this question was before us on the former appeal,' I expressed the opinion that as the agreement of January 23, 1885, provides that the $750 loaned by Stanley to Gorham was expressly for “use in the business” of heating, ventilating, etc.) and for no other use whatsoever, the case was clearly within the authority of Leggett v. Hyde (58 N. Y., 279), and Manhattan Brass Co. v. Sears (45 N. Y., 797), and was distinguishable from, several later cases in the court of appeals, where, under circumstances in some respects similar to those here involved, it was decided that a partnership relation did not exist. A further examination of the authorities referred to has only strengthened me in the conclusion before reached. l

. The opinion in the case of “Leggett v. Hyde” (supra), after a careful and discriminating examination of all the authorities upon the subject, reaffirms the doctrine of the old English case of “Waugh v. Carver,” as the law of this state, to the effect that one who participates in the profits of a business as profits, and not as a means of compensation for services, is a partner, as to third persons and is liable as such for debts.

The facts in that case were closely analogous to those of the case at bar. In Judge Folgee’s language, “The prominent and important facts are that he (defendant) loaned the firm a sum of money, to be employed as capital in its business, and that, therefore, he was entitled to have and demand from it one-third of the profits of its business every half year.” The agreement under consideration has the same essential feature.

It is therein provided that “said loan of $750 is expressly for use in said business and for no other use whatsoever.” It is not stipulated that said money so loaned shall be used for any specific purpose of said business or any isolated venture therein; it is to be employed generally in said business.

That is, it is to constitute, or at least become, a part of the capital of such concern. The agreement furthermore provides for a quarterly statement of the condition of said business and an annual division of profits.

There is no limitation or special definition of the word “profit” in the agreement. In fact, it is even provided that any commissions that may accrue to the party of the first part, from sales or purchases made in the course of the business, shall become an asset thereof, subject to the division of such profits therein before mentioned. The intention is, therefore, quite clearly expressed to make the term “profit,” as far as that agreement is concerned, as comprehensive as possible, so as to include all gains of the business from all sources.

In some respects the case at bar is a stronger one for the plaintiffs than was “Leggett v. Hyde.” There the court inferred, from circumstances, that the money was to be used generally in the business; in the case at bar it was expressly stipulated that the so called loan shall be used in such business and in no other way. In “Leggett v. Hyde” the defendant “never interfered in the affairs of the concern nor exercised any control in the business.” In the present case it appears that the defendant intended to render services “in seeming sales in said business,” and oral testimony, offered by the plaintiff at the trial, tended to show that he did take an active part in directing the affairs of the partnership.

Counsel for appellants contend that “Leggett v. Hyde” is distinguishable from the case at bar because in that case the agreement expressly provided that he loan was to be returned in one year “unless other arrangements were made,” and in the present case the agreement provides that the money shall be repaid absolutely and in all events.

I cannot see that such 'distinction, as a matter of fact, exists. The absolute agreement to repay the money was just as clear in Leggett v. Hyde as in the case at bar, the mere addition of the words ‘1 unless other arrangements are made ” not affecting this liability one way or the other.

Persons are always privileged to refrain from keeping their agreements if “other arrangements are made,” that is, if a former agreement is modified or i-escinded by a subsequent one. But even if sfich distinction did exist, I do not think that it would have the effect for which appellants contend. As already stated, the essential elements of a co-partnership, as far as the outside world is concerned, under the doctrine of “ Leggett v. Hyde,” are a contribution to be used for the general purposes of the business, and a participation in the profits as such.

Counsel for appellants claim that certain later cases distinguishing Leggett v. Hyde, operate to defeat the defendant Stanley’s liability in this action. Richardson v. Hughitt (76 N. Y., 55), is cited. But in that case it is expressly stated in the opinion that the money loaned ‘1 did not constitute a portion of the capital of the firm, and was mot to go into its general business.”

“The amount of profits which were to be received by Hughitt was compensation for loaning the money, and not as the profits of a partner.” In this case specific advances of money were to be made upon specific security, so much on each wagon to be manufactured; and the defendant was to receive a sum proportioned to the profits, not of the general business of the firms to which the loan was made, but on the particular wagons upon which he made loans. In Eager v.Crawford (76 N. Y., 97), (also cited by appellants), it appears that the alleged participation in the profit was merely the agreement upon a mode of payment of the loan.

The defendant in that case lent a certain sum of money to a third person, it being known that the same was to be used in the latter’s business, and the agreement between them was in effect that a certain portion of the profits should be turned over to defendant to pay the interest and •principal on such loan. “ The court was right in charging the jury in regard to the effect of the paper if it had been signed, and that it did not amount to a partnership, but was simply an agreement that Crawford should take one-half of what was received and apply it to the payment of Crawford’s debt.” And, if it more than paid the interest, then the surplus should be applied upon the principal and extinguish it as far as it went.

Burnett v. Snyder (76 N. Y., 344), was a case in which there were five members of a partnership, and two of such five made an agreement with the defendant, whereby, in consideration of certain money advanced by him, such two partners were to pay to defendant a certain proportion of their undivided shares of the profit.

The court in that case decided that a man would not be held a partner in a firm by reason of any agreement made with certain, but not all the members of it; that it was beyond the power of two members of a firm to take in an additional partner without the assent of all. In the opinion occurs the following language: “And doubtless if the firm of Strong, Platt & Company had been composed of Strong and Platt, alone, it would have been sufficient to introduce Snyder (the defendant) into the firm and clothe him with the privilege, and subject him to the liability of a partner.”

The most significant words in Burnett v. Snyder in the present examination are the following, in which Judge Danforth distinguishes the case from Leggett v. Hyde, and other cases of like import, all of which rest upon the rule that he who takes a moiety of all the profits indefinitely shall, by operation of law, be made liable to losses, if losses arise, upon the principal, that by taking a part of the profits he takes from the creditors a part of that fund which is the proper security to them for the payment of their debts.”

In Cassidy v. Hall (97 N. Y., 159), advances were made to a corporation by the defendants, and such advances “were to be made only on such orders as the defendants approved, and the most that can be claimed from it is that the defendants were the financial agents of the company to make advances and discount their paper.” The advances were all made on specific orders for property to be manufactured by the corporation and approved by the defendants. They were not generally interested in the affairs of the company, but only for a special purpose. The court refers to Richardson v. Hughitt (supra), and considers that it is analogous and controlling.

Curry v. Fowler (87 N. Y., 33), comes nearest to distinguishing the case at bar from Leggett v. Hyde, in favor of the defendant of any of the cases cited, because in the instrument between the Messrs. McCormack and the defendant Fowler it is provided in so many words that the McCormacks agree to share the profits of the purchase and buildings with Fowler according to a plan therein stated, by which he should have one-half of the profits, and be guaranteed at least $12,500. Still the court held that such agreement applied not to the general business of the parties, but only to a; particular venture, thus recognizing in theory the distinction hereinbefore referred to.

The court further said that the case was similar to Richardson v. Hughitt, because in both cases money was advanced 01; loaned and security taken upon property; in the case cited (Richardson v. Hughitt) upon personal property, and in the case at bar by a mortgage upon real estate.

Furthermore, in Curry v. Fowler, it was not claimed that the defendant took any part, or had anything to do with construction of the buildings, or any connection with the contract except by the advances of the money; and, as that was all he did, there is no ground for claiming that by reason of making a loan which related to a building contract he became a partner with the builders.

In this case the agreement plainly shows that it was the intention that Mr. Stanley should take some active interest in said business. In Curry v. Fowler, only a single definite loan of $50,000 was concerned.' In the case at bar further advances were contemplated, presumably as the necessities ©f the business might require.

The learned judge-further says, in Curry v. Fowler : “In neither of the cases (Richardson v. Hughitt and Curry v. Fowler) can it be urged on any reasonable ground that there was an attempt to evade responsibility as a partner while reaping the advantages of the copartnership. ” Upon a careful examination of the instrument before us as a whole, and considering the admitted facts, I cannot say the same thing of the case at bar. See also Haas v. Roat, 26 Hun, 632.

I have entered into this lengthy discussion of the cases because a doubt had been raised as to whether sufficiently careful consideration was given them on the appeal, and because it is represented that this is a test case, upon the decision of whiclj, many others depend.

The distinction which appellant’s counsel attempts to draw is not, in my judgment, an essential or important one. As far as third persons are concerned, what difference can it make whether the loan is to be re-paid absolutely or on a contingency %

It is immaterial what arrangements the parties make infer sese. One partner may lend another capital and take any proper security for its repayment. ' It is a common feature for parties to be allowed interest on the capital they respectively contribute. As between themselves, they may make any agreement not in itself illegal, and on an account-lag in equity will be held to the same.

But when the rights of creditors supervene, the question is under Waugh v. Carver and Leggett v. Hyde, does an alleged partner by agreeing to participate generally in the profits as profits, expect to diminish the fund from which creditors are to be paid. In all the cases cited by appellants the court of appeals held that this feature did not exist and that the sharing of the profits were for a particular and specified purpose.

Even in Curry v. Fowler the court was able to say that the loan applied solely to a certain piece of real estate and to security by mortgage upon such specific reality for its repayment.

In the case at bar the “property in the profits ” (Richardson v. Hughitt, supra) is general if language can make it so. The security taken for the alleged loan is, as far as the record shows, entirely personal between the parties, being first a fife insurance policy, and second a chattel mortgage upon property which it does not appear had any connection with the business.

There is no direct or necessary relation. In Curry v. Fowler, as before stated, the court took into account the general appearance of the whole case and said that no intent to reap the benefits of a partnership and escape its liabilities existed.

In the case before us, I think no candid man could believe, after reading the agreement and considering the facts, that the appellant did not intend to reap all possible benefits of a partnership. If in any essential sense Waugh v. Carver and Leggett v. Hyde are still the law of this state this appellant must be held as partner as to creditors.

The question whether originally plaintiff gave credit to the firm or to the defendant Gorham as an individual is immaterial in view of the conclusion reached as to the partnership relation between the defendants. At the time of the making of the contract herein involved and its performance by the plaintiffs such co-partnership existed although it was not known to plaintiffs.

The defendant Stanley was a concealed partner in the firm, and it is elementary law that a concealed partner is liable upon contracts by or for the benefit of the firm when he is discovered. Story on partnership, sec. 139.

The judgment should be affirmed, with costs.

Daly and Van Hobsen, JJ., concur.


source: Caselaw Access Project

author: Larremore, Ch. J.

license: Public Domain

text:
    Joseph L. Spofford, Resp’t, v. David N. Rowan, App’lt.

      (New York Common Pleas, General Term,

      Filed April 14, 1887.)

    1. Appeal—Application for leave to go to court of appeals—Necessary GROUNDS OF SUCH AN APPLICATION.
    The grounds of such an application must show either that the construction of a public statute is involved; that questions of law are of public importance or affect large interests; that the principles involved are of importance to others, or that a number of cases depend upon the decision of the case at bar.

      E. P. Johnson, for resp’t; D. N. Rowan, for app’lt.
   Larremore, Ch. J.

This is an apphcation for leave to-appeal to the court of appeals.

This court has repeatedly held that the grounds of such apphcation show either of the fohowing facts: That the construction of a public statute is involved; that the questions of law are of public importance or affect large public interests; that the principles involved are also of importance to others than the parties to the suit; that a number of cases are depending upon the decision of the case at bar. Butterfield v. Radde, 38 Supr. Ct. Rep., 44; see also Josuez v. Murphy, 6 Daly, 404; Annan v. Ritchie, id. 331.

The rulings in Curley v. Tomlinson (5 Daly, 283) and. Mount v. Mitchell (32 N. Y., 702) as to motions for a re-argument apply with equal force to an apphcation of this character.

It is not shown that any statute governing the case or any decision controlling it has been overlooked. The judgment in question was affirmed by the general term of the-city court and also by the general term of this court, and we do not think, under all the circumstances, that the case is one which would authorize us to grant this apphcation.

The motion is therefore denied.

Van Hoesen, J., concurs in result; Daly, J., concurs.


author: Daly, J.

text:
    George S. Forrester, Pl’ff, v. Andrew D. Parker, Def’t.

      (New York Common Pleas, General Term,

      Filed April 4, 1887.)

    1. Mortgage—Extension of time—Ample consideration—Agreement-FOR, NEED NOT BE IN WRITING.
    An extension of time to pay a debt is ample consideration for a mortgage and for the covenant of the mortgagor to pay the debt. An agreement for extension need not be in writing, acceptance of the bond of the debtor payable in one year, upon that understanding, is sufficient.
    2. Same—Recording of.
    The recording of a mortgage is not for the protection of the mortgagor.
    It appears from the evidence in the case, that one Andrew J. • Parker, the father of defendant, was indebted to the plaintiff, and, desiring further time," brought to him a mortgage, executed by the defendant to secure the bond given by him (Andrew J. Parker), payable in one year, and asked for an extension of time and that the mortgage be not recorded.
    In the mortgage was a covenant to pay the debt.
    Further time was given, the mortgage not recorded, and the property was sold without notice of the mortgage to-the vendee.
    Plaintiff sued on the covenant in the mortgage and obtained judgment.

      Motion by defendant for a new trial upon exceptions directed to be heard in the first instance at the general term.

      Phillips & Way, for deft; Hector M. Hetchings, for pl’ff.
   Daly, J.

The plaintiff testified that he gave Andrew J. Parker, Sr., an extension of one year on receiving the mortgage executed by the plaintiff. The extension was ample consideration for the mortgage, and the defendant’s covenant ¿to pay the debt which was contained in it. It was not necessary that the agreement for extension should be in writing, the acceptance of the bond of the debtor, payable in one year upon that understanding, was sufficient.

The receipt and acceptance of the bond of the debtor and of the mortgage made by the defendant, if nothing else were done, and there were no other proof of extension, would be sufficient ground for presuming that there was an agreement to give an extension for the time that the new obligation and the security had to run. Walrath v. Thompson, 6 Hill, 540.

There is no force in the objection that the mortgagee should have recorded the mortgage. The defendant held the property and could have protected himself, when he conveyed it away, by giving notice of the mortgage to his grantees. The recording of a mortgage is not for the protection of the mortgagor.

It is not suggested that there was any question of fact in the case. Defendant moved for a direction of a verdict in his favor, and that being refused, did not ask for the submission of the case to the jury. It was therefore properly disposed of by. the judge upon the uncontradicted evidence.

The exceptions must be overruled and the motion for a new trial denied, with costs.

Larremore, Oh. J., and Van Hoesen, J., concur.


author: Van Hoesen, J.

text:
    Mary R. Hunt and George T. Riggs, Resp’ts, v. George C. Genet, as Trustee under the last Will and Testament of Caroline M. Riggs, deceased, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1887.)

    1. Jurisdiction of city court of ÍTew York—Action to oust a trustee.
    The city court has jurisdiction, of an action wherein the complaint demands judgment against a natural person or against a corporation for a sum of money only. When the complaint demands judgment against a trustee for a sum of money and that he, as trustee, has no claim to the same, the city court has no jurisdiction.
    2. Same—Interpleader.
    If the statute does not give to the city court the right to oust a trustee by proceedings instituted for that particular purpose, it cannot turn him out through the ancillary proceedings of an interpleader.
    This suit was originally brought, in the city court of New York, by these plaintiffs, against the New York Refining Company, an alleged corporation, to recover $73.33 rent under an alleged lease, made to said company by one Franklin C. Field, as trustee, of a portion of premises No. 141 Maiden lane, New York city, at $880 a year. The defendants thereupon moved the court to substitute this appellant as defendant in their place upon their paying the amount of rent into court, less ten dollars for costs of the motion, which order was granted, and plaintiffs were also allowed to amend their complaint. •
    The amended complaint demanded that it may be adjudged that they are entitled to the money deposited in court and that defendant, George C. Genet, as trustee, has no claim to the same.
    The trial resulted in a judgment in favor of the plaintiff, which was affirmed by the general term of the city court, and the defendant appealed to this court.

      Albert B. Genet, for app’lt; Lord, Day & Lord, for resp’t; Daniel Lord, of counsel.
   Van Hoesen, J.

The only question to be considered is this, had the city court jurisdiction of this action? That court had “jurisdiction of an action against a natural person or against a corporation wherein the complaint demands judgment for a sum of money only.”

The complaint in this action demands this judgment against Genet, the trustee, “that the plaintiffs are entitled' to the said sum of sixty dollars, and that the defendant George 0. Genet, as trustee as aforesaid, has no claim to the same.”

It is plain that instead of demanding judgment for a sum of money only, the complaint demands the further judgment that Genet, in his character as trustee, has no claim upon the money.

This may at first blush seem like catching at words, but the criticism that I have made upon the prayer for judgment involves the point that is decisive of this case.

What are the plaintiffs seeking to accomplish by this action?

To have their mother’s will declared void, to have the trust created by the will adjudged invalid because it is a violation of the statute against alienation, to oust the trustee from the performance of his official functions, and thus to get possession of a fund that the will confides to the trustee.

The complaint sets out every allegation necessary to support the prayer for relief, and the city court, in order to warrant the judgment that it rendered in favor of the plaintiffs, was compelled to adjudge the trust invalid. The first finding of law is, ‘ The will of Caroline M. Riggs is not valid.”

If the trustee fails to pay to his cestui que trust the money to which the latter is entitled, is the right to enforce the trust to be treated as a mere demand for money, and upon the theory that he is only demanding judgment for a sum of money, may the cestui qui trust compel the performance of the trust by suing the trustee in the city court? Such appears to have been the opinion of the city court.

In this case, the object of the plaintiffs was to remove the trustee and terminate his powers. If this judgment stands, that object has been accomplished. As between trustees and cestui que trust it is res adjudicata that the trust is invalid, and that the trustee has no right to the rents, or to do any act that falls within the sphere of a trustee’s duties. The trustee is displaced as completely as he would be by the judgment of the supreme or of a superior city court.

Did the legislature contemplate anything like this when they conferred upon the city court jurisdiction of a demand for “money only.”

The order of interpleader cannot enlarge the original jurisdiction of the city court. If the statute does not give to the city court, the right to oust a trustee by a proceeding instituted for that particular purpose, it is preposterous to suppose that it may turn him out if it can succeed in getting hold of him through the ancillary proceeding of an interpleader.

It seems unnecessary to enlarge upon the point. I think the judgment against the trustee, Genet, should be reversed. We are asked to award no costs if the judgment be reversed, and it is argued by the plaintiffs that there is no doubt that the city court had jurisdiction of the action against the New York Refining Company, the original defendant; and that it is no fault of the plaintiffs that the Refining Company succeeded in obtaining an order of interpleader, and the substitution in its place as defendant of Genet the trustee.

I do not concede that the city court had jurisdiction of the action as it was brought against the Refining Company. The Refining Company is the tenant; the trustee under the marriage settlement of Caroline M. Riggs was lessor; and Genet is the testamentary trustee to whom Mrs. Riggs devised the demised premises, under the power of appointment contained in the marriage settlement.

The plaintiffs as heirs at law of Mrs. Riggs sought to place themselves in the position of successors to Field, the trustee under the marriage settlement, and thus to make themselves the landlords of the Refining Company. Accordingly they sued the Eefining Company for a month’s rent of the demised premises. In order to succeed they were compelled to attack the validity of the will of Caroline M. Eiggs.

The Eefining Company in self-defence was forced to make the trustee under the will a party to the action. He was a necessary party, and the plaintiffs could not possibly have maintained their action without impleading him. His estate could not be taken from him without giving him his day in court.

Of his own motion, if the refining company had not taken exception by answer or by demurrer to the defect of parties, the court would have been compelled, under section 452, to cause Genet to be brought in as a defendant, because, in his absence, it could not determine the controversy as between the parties to it without prejudice to the rights of Genet, or by saving his rights.

The action then from the very first was neither more nor less than a controversy between trustees and cestuis que trustent for the possession of the trust estate, and it ought not to have been brought in the city court.

For the costs and expenses that have been incurred the plaintiffs are morally liable, and their application to be relieved from costs ought not, therefore, to be granted.

A very different case would have been presented if the will had been adjudged invalid by the judgment of a competent court, and if that judgment had been pleaded and proved as a final adjudication of the rights of the parties. In that case there would have been no contest in the city court over the validity of the will, and the ownership of the trust estate, for Genet,'if he claimed the rents, would be acting as an individual and not as a trustee performing his duties.

The judgment should be reversed, with costs.

Larremore, 0. J., and Daly, J., concur.


text:
    Catharine Brennan, Resp’t, v. Germain Lachat, Appl’t.

      (New York Common Pleas, General Term,

      Filed February 7, 1887.)

    1. Landlord and tenant—Consolidation act—§ 652—Duty imposed upon landlord—Right op action for breach op. ■
    The complaint in an action by a tenant against a landlord, alleged that defendant was the owner of the premises, winch building was a tenement house occupied by plaintiff and other tenants; that the building was negligently kept, inasmuch as the stairs were covered with zinc, or some other metal, which had become so worn that the edges became sharp, jagged and curled up, and defendant negligently permitted them to remain so; and that plaintiff while lawfully using the stairs and carefully passing down the same, and without any fault or negligence on her part, tripped and fell and broke her right hand and wrist. Held, that it states a good cause of action under the statute, section 652 of the consolidation act, requir. ing, in respect to tenement houses, that all stairs shall he kept in good repair. The duty thus imposed by lay? upon the landlord is for the benefit of the tenants, so that they may have a safe passage from their apartments to the street, and a breach of the duty imposed by statute gives a right of action.
    2. Same—Pleading.
    It was not necessary to plead the public statute.
    Appeal from, judgment of general term of city court, affirming judgment entered upon verdict of a jury for $400 damages for injuries sustained by plaintiff through the alleged negligence of defendant.

      Peter Mitchell, for resp’t; Emile Beneville, for app’lt.

       Affirming, 5 N. Y. State R

   Daly, J.

The allegations of the complaint that the defendant was the owner of tho premises, ¡No. 9 Varick Place, in the city of ¡New York, which building was a tenement house, occupied by plaintiff and other tenants of defendant; that the building was negligently kept by defendant, inasmuch as tho stairs of the first hall were covered with zinc, or some other metal, which had become so worn that the edges became sharp, ragged and curled up, and defendant negligently permitted the same to remain so; and that plaintiff, lawfully using the stairs, and carefully passing down the same, and without any fault or negligence on her part, tripped upon said zinc, or other metal, and fell and broke her right hand and wrist, etc., states a good cause of action; tho statute, sec. 652 of the consolidation act, requiring, in respect of tenement houses, that all stairs shall be kept in good repair. The duty thus imposed by law upon tho landlord is for tho benefit of the tenants, so that they may have a safe passage from their apartments to the street, and a breach of the duty imposed by statute gives a right of action. Willy v. Mulledy, 78 N. Y., 311.

_ It was not necessary to plead the public statute; the motion to dismiss upon the complaint and opening, on the ground that there was no allegation of duty, or of facts showing duty, was properly denied.

The plaintiff testified that her fall was caused by her dress catching on something that was on the stairs, but she did not know whether it was the zinc or a nail, both of which were there; that the stairs were ragged, and the zinc, or whatever it was that covered the steps, had got turned up so that it would catch everything.

As it was in the dark, and late at night, when plaintiff fell, there was a sufficient reason for her not being able to state positively what caught her dress, but the condition of the zinc, or metal covering, was described with such accuracy, that the inference might fairly be drawn that that condition caused the accident. The defendant’s motion to -dismiss on the ground that there was no evidence of what particular defect caused the accident was therefore properly-denied.

The objection that no notice of the particular defect which caused the injury had been given to the landlord, was not well taken, because the person who was agent of the premises for some time before the accident had his attention called to this condition of the metal covering, through complaints of the tenants, and he called the housekeeper’s attention to it. He says he found that it was a little ragged upon the edges; that is, that the edges were turned.

Mrs. Katner, a tenant, testified that a month before the plaintiff’s accident the nails were left on the stairs where-the tin had been taken off, and that she told the defendant to have the nails taken out.

Miss Frazer, another tenant, testified to the bad condition of the metal covering of the first stairs as early as January (the plaintiff was injured in May), and also testified to the housekeeper’s husband tacking down a piece of tin which, at that time, had caught her dress on the second stairs. The plaintiff’s son testified that there was tin on the stairs where his mother fell, nailed on here and there.

There was no error in admitting evidence that the day after the accident the small pieces of tin were taken off the stairs, and the place was smoothed. These repairs made immediately after the accident may be regarded as some-evidence that they were needed. Dale v. Del. and L. R. R., 73 N. Y., 468-70.

The judge properly refused, for the reasons already given, to charge that there was no evidence of any duty imposed upon the landlord, nor of any violation of any duty or contract.

The defendant requested the judge to charge a proposition as to contributory negligence, and the judge declined except as he had already charged.

He had repeatedly impressed upon the jury the obligation of plaintiff to establish that she was not guilty of contributory negligence; he had left to them to say whether it was-negligence on her part, with her knowledge of the defects-in the stairs, to go over them in the dark.

She had sworn that she descended the stairs, having hold, of the banisters with her left hand, and was not in a hurry, but went down as she usually did.

The proposition which defendant requested the court to charge, was that if she ventured upon them in the dark without exercising such extra precaution as the unsafe condition of the stairs and the absence of light seemed to demand, she was guilty of contributory negligence. But-there was no proof in the case that she had not exercised the precaution required by the circumstances, nor what. extra precaution, if any, beyond those she took were required, and the request was properly refused.

The evidence amply sustains the verdict, and that judgment should be affirmed, with costs.

Larremore, C. J., and Van Hoesen, J. concur.


author: Per Curiam.

text:
    The People ex rel. The New York Electrical Lines Co., App’lt, v. Rollin M. Squire, as Commissioner of Public Works, etc., Resp’t.

      (New York Common Pleas, General Term,

      Filed February 7, 1887.)

    Mandamus—“When should be denied.
    The commissioner of public works was correct in his refusal to allow a permit to the relator to open the streets for the purpose of laying its wires, on the ground that its plans had not been approved by the'board of subway commissioners, as required by section 3 of the act of June 13, 1885, and a mandamus must be denied.
    Appeal from an order denying a motion made at special term, for a writ of peremptory mandamus.

      Jesse Larrabee and E. H. Benn, for app’lt; E. H. Lacombe, corporation counsel for resp’t.

       Affirming 1 N. Y. State Rep., 633.

   Per Curiam.

The learned judge who made the order appealed from, after a careful examination of the law, denied the motion for a mandamus; and he has fully, and very clearly given his reasons therefor. See S. C., N. Y. State Rep., 633.

We have examined the questions raised by the appeal, and fully agree with him, both in the conclusions to which he has arrived, and the grounds on which such conclusions are based.

A similar application was made to Mr. Justice Freedman, in the case of the New York Electric Lines Co. v. John D. Crimmins and others and by him denied. MSS. opinion N. Y. Sup. Ct., Sp. Tm., Nov. i, 1886.

For the reasons stated in the opinions, we think the order appealed from should be affirmed.


text:
    Soloman Brooks and Mark Brooks, Resp’ts, v. William B. Dinsmore, as President of the Adams Express Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 7, 1887.)

    1. Carrier—Negligence—How proved by damaged condition op property WHEN DELIVERED.
    A party is bound to prove the condition of property at the time it went into the hands of a carrier, in order to show by the damaged condition of said property when delivered, that the carrier was negligent.

      3. Same—When the burden oe explaining, put on carrier.
    Proof of the good condition of property when received by a carrier and the injured condition when delivered, throws on him the burden of explaining how it became so.
    8. Same—Bill op lading—Proof op condition when received by carrier.
    The bill of lading, or the document that answers that purpose, acknowledging the receipt of property in good order and in good condition would be sufficient in the first instance, to show that the property was uninjured at the time it was shipped.
    4. Same—No presumption as to condition op property.
    There is no presumption that property is in good order when shipped, nor that it remains in good order while in the hands of a third party, intermediate the receipt and time of shipment.
    Appeal from a judgment of the district court in favor of the plaintiff, for the value of certain goods claimed to have been damaged by defendant.
    It appeared from the evidence, that plaintiff shipped goods to Hopkinsville, Kentucky, a part of all of which were returned, and plaintiff alleges that when delivered in Hew York on such return, the goods were wet, and brought this action to recover damages by reason of the injury thus caused.

      D. C. Morrell, for resp’t; Sewarcl, Da Costa & Guthere, for app’lt.
   Per Curiam.

In order to show that the defendant was negligent, the plaintiffs were bound to prove the condition of the goods at the time they went into the hands of the carrier at Hopkinsville, Kentucky.

As the goods were wet when the defendant delivered them to the plaintiffs, it would have been incumbent upon defendant to explain how they became so, if the plaintiff proved that they were in good condition at the time of their shipment. Russell Manuf’g Co. v. N. H. S. B. Co., 50 N. Y., 127.

The bill of lading, or the document that answers the purpose of a bill of lading, acknowledging the receipt of the goods in good order and in good condition, would have been sufficient, in the first instance, to show that the goods were uninjured at the time they were shipped. Koenigsheim v. Hamburg Packet Co., 12 Daly, 123.

There is no presumption that the goods were in good order when shipped, nor is it to be presumed that they remained in the same condition in which they were at the time the plaintiffs forwarded them to Hopkinsville for inspection by their customer at that place.

The goods had been out of the possession of the express companies, and in the hands of the plaintiff’s customer, and there can be no presumption that whilst out of the defendant’s control the goods were always in safe hands.

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


text:
    Ezra Waterhouse, as Administrator, etc., of Lurana Waterhouse, App’lt, v. Frazier Gilman, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 4, 1887.)

    Witness—Evidence of transactions with agent of deceased principal NOT OBJECTIONABLE UNDER SECTION 829, CODE' ClVIL PROCEDURE.
    In an action by an administrator on a note where the defendant testified as to transactions with the agent of the deceased payee, and the plaintiff objected that the evidence was incompetent under section 829, Code Civil Procedure, in that it was “ concerning a personal transaction between the witness and the deceased party.” Held, that the evidence given by defendant was not of any transaction with the plaintiff’s intestate; that the testimony as to transactions with the agent of the latter was not objectionable.
    This action was brought in the city court of New York upon a promissory note given to one Orrin F. Waterhouse, who died and bequeathed the note in suit to Lurana Waterhouse, whose administrator sues.
    The defense is usury and the defendant himself was the only witness called to establish the defense. The transactions in relation to the note, when given, were with a Mr. Hudson, who represented the promisee, who, it does not appear, was present.
    The plaintiff objected that the testimony of defendant was incompetent in that a “party should not be examined as a witness in his own behalf against the administrator, etc., concerning a personal transaction between the witness and the deceased person.” § 829 Code Civ. Pro.
    The trial resulted in a judgment for the defendant, which has been affirmed both by the general term of that court and of this. Motion is made for leave to appeal to the court of appeals.

      Raphael J. Moses, Jr., for app’lt; Henry E. Knox, for resp’t.
    Motion for leave to appeal to court of appeals.
   Daly, J.

No evidence was given by defendant of any personal transaction with the plaintiff’s intestate. Testimony as to transactions with the agent of the latter was not objectionable. The cases cited by the appellant on this motion do not touch the questions involved by the ruling complained of. Lerche v. Brasher, 4 N. Y. State R., 335,

Motion for leave to appeal to the court of appeals denied with ten dollars costs.

Larremore, C. J., and Van Hoesen, J., concur.


author: Larremore, C. J.

text:
    Hamilton W. Shipman, Pl’ff, v. William H. Scott, Def’t, and Resp’t, Theodore W. Frech, Impleaded, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1887.)

    Interpleader—When proper.
    In a case of the sale of a piece of property in which each of two brokers claim brokerage, and to have negotiated the sale, and to have induced the purchasers to sign a contract, and one brings an action to recover his commissions, even if the contracts were entirely different, it is proper for the court to make an order of interpleader substituting the other broker as defendant, the question to be tried being which one was the procuring cause.
    This action is brought by plaintiff to recover a broker’s commission amounting to $710 for negotiating the sale of a piece of real estate formerly owned by defendant. The defendant has not answered. In affidavits he admits his liability to pay such amount, but avers that one, T. W. Freeh, another broker, claims such commission for procuring such sale.
    An order of interpleader was thereupon granted directing defendant to pay said sum into court and substituting said Freeh as defendant in the place of the defendant above named. From such order this appeal is taken.

      John C. Shaw, for app’lt; William H. Scotty for resp’t; Philip Van Alstine, for plt’ff.
   Larremore, C. J.

The present case is not one where an owner of real estate, having employed two brokers, becomes liable for more than one commission because each broker has procured a separate purchaser. The only purchaser mentioned is Sarah J. Doying, to whom the property was actually sold, and each broker claims that he negotiated such sale.

The general term of the city court, therefore, properly affirmed the order of interpleader on the ground that, as both brokers claimed to have been employed, the question to be tried was which one was the procuring cause. Dryer v. Ranch, 3 Daly, 434.

The present appeal is taken by the broker, brought into this litigation through the order of interpleader; the plaintiff, though' he opposed the motion, seems to have acquiesced in the decision. Counsel for the appellant claims that in this case there is lacking one of the essential elements of a valid application for interpleader because the court “requires two parties to contest a fund which neither one hiaim a is the fund he is entitled to,” or in other words, because the two brokers do not claim the same thing. This contention is founded upon a real or supposed difference in the contract of sale which each broker maintains he procured to be executed by the purchaser. It is agreed that the appeal papers show that Shipman claims that he induced Mrs. Doying to sign a certain contract of sale, and that Freeh claims that he induced her to sign a different one. An inspection of the contract, as it is set forth in the affidavits of the respective brokers, does not reveal any essential divergencies, except the fea-ture of procuring Mr. Shaw’s guarantees which appears in one and not in the other.

A loan is mentioned in both, but only in one are the particulars of the loan given. These two contracts, or these two versions of the same contract, are in no respect inconsistent with each other. The only difference between them seems to be that one is fuller and more explicit than the other. But even if the contracts claimed to have been negotiated by the respective brokers were essentially different and inconsistent, it would not be an argument against granting an order of interpleader.

The undisputed fact is that Sarah J. Doying purchased the premises in question. Each broker claims a commission for negotiating such sale. The court had directed that the brokers litigate between themselves the question which one was the procuring cause.

If the contracts of sale claimed by each to have been negotiated are different agreements, then in determining which was the procuring cause necessarily there will have to be determined which contract the purchaser as a matter of fact executed. If they are essentially different and inconsistent she cannot have entered into both, and under the circumstances the determination which contract she became a party to and followed in making the purchase would in itself be the determination of which broker was the procuring cause.

This question, therefore, far from being a legal objection to the order of interpleader, would, according to appellant’s own theory, be an additional reason for making it, and would be the very matter of fact to be tried between the plaintiff and the substituted defendant.

The order should be affirmed.

Daly and Van Hoesen, JJ., concur.


author: Larremore, C. J

text:
    Mary Lee, as Ad’mx of the Goods, Chattels, etc., of Michael Lee, deceased, Resp’t, v. Barrow Steamship Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1887.)

    Negligence—Master and servant—Duty oe master in furnishing
    IMPLEMENTS.
    A master is bound to exercise due care in selecting and furnishing fit implements for the use of his servants, but he is not a guarantor of the safety of the machinery.
    2. Same—Contributory negligence.
    A servant whose duty it is to inspect materials before putting them into use, and who neglects so to do, and it results in an injury to him, is guilty of negligence, which if it had resulted in an injury to another person, would have been imputed to the master, and would certainly defeat any recovery on behalf of himself.
    8. Same—Assuming duties of another servant.
    If it were not the duty of a servant to inspect the materials to be used, but in the absence of the one whose duty it was he assumed and undertook, to perform the duty of another, and injury resulted from an improper performance, such injury would be the result of his own negligence, for which his estate cannot recover.
    The defendant is a foreign corporation, and is the owner of a steamship known as the Devonia. Plaintiff’s intestate was a longshoreman employed by the firm of Henderson Brothers of New York, and worked for them as a gangway man in February, 1884.
    On the 20th of February, 1884, said steamship was lying at pier 21, North River, discharging cargo. Said intestate was gangway man in charge of the hatch. Between three and six o’clock in the afternoon of that day he got orders from the foreman to rig up hatch No. 5, abaft the third or mizzen mast. He went with two other longshoremen and fellow employees to a small house on pier 21, where rigging was stored. They went in and selected two' “whips,” “straps ” and “blocks ” from among a large number there.
    These they took aboard the Devonia and, with the assistance of said fellow employees, said intestate rigged the rope straps to a wire span about twenty-five feet about the deck, hooked the blocks into the bights of the straps and into these blocks rove the “ whips ” to run down into the hatch.
    The following day said intestate took charge of this hatch and superintended the work of unloading pig iron, by means of the tackle rigged as aforesaid, from 7 A. M. until about 3 P. M., when, as a drought of iron was being lifted from the hold, both bights of one of the straps on the span broke and the block, being thus released fell .and struck said intestate on the head and killed him.
    This action is for damages for alleged negligence of defendant in causing (through their agents) such death. Upon the trial plaintiff had a verdict for $2,500 and from the judgment thereon entered and an order denying a. motion for a new trial this appeal is taken.

      Frederick G. Gedney, for app’lt; A. G. Vanderpoel, for resp’t.
   Larremore, C. J

While a master is bound to exercise due care and diligence in selecting and furnishing fit implements for the use of his servants, he is not a guarantor of the safety of the machinery. Painton v. N. C. Railway Co., 83 N. Y., 7.

It is not claimed on behalf of plaintiff that the tackle provided was originally of inferior quality. The contention is that the rope in question had been affected by dry rot and thereby weakened, that such defect was discoverable by inspection, and that it was the duty of defendant to so inspect and discover such imperfection. But the defendant is a corporation and must act in this matter as in all others by its agents or employees, and the question arises whose duty was it to make the proper inspection under all the circumstances of this case.

I am of opinion that it was the duty of plaintiff’s intestate to inspect the rope, chosen by himself, before putting it to use, and in neglecting so to do he was guilty of negligence which, if it had resulted in an injury to another person, would have been imputable to the master and must certainly defeat any recovery on behalf of himself or his estate.

The evidence shows that the deceased, who was “gangway man,” and two fellow employees went, on the day named, to a storehouse on the pier, where all the tackle was kept, and themselves selected the “straps,” “whips,” etc., to be used in rigging the hatch for unloading cargo. The defendant was familiar with the appliances there at his disposal, and, being “gangway man,” was charged with the duty of putting up a proper and safe rigging. Obviously in selecting the materials to be used he was required to inspect them and not to use any which were unfit for the purpose.

To hold otherwise would be in effect to say that if any worn out or defective “strap” happened to be hanging in the storehouse, no matter how many perfect ones were there also, and an employee, charged with preparing a proper rigging, used such defective strap without testing or inspecting it, and was injured in consequence, the master would nevertheless be liable. In other words it would be to require the master to guarantee every piece of rope that chanced to be in the storehouse. According to plaintiff’s own theory the alleged defect was discoverable by inspec- ' tian.

If, therefore, the rope broke by reason of such defect it must have been because the person whose duty it was to make the examination neglected it. As this person was plaintiff’s intestate himself such negligence must prevent a recovery herein.

Plaintiff’s case is not strengthened by the claim that the accident resulted from the negligence of the storekeeper. It seems that such a person was employed to take general care of the storehouses or shanties on piers 20 and 21, in which the tackle was kept, and of the tackle itself. An attempt was made to show that it was the exclusive duty of such storekeeper to select the materials to be used in rigging any hatch, and that the longshoremen and stevedores were not permitted to help themselves to tackle, but were bound to apply to the storekeeper and use what he handed them.

The evidence on this point is by no means satisfactory. Plaintiff’s own witnesses admit that they have on occasions taken their own tackle and defendant’s witnesses deny that it was the exclusive province of the storekeeper to select tackle for the men, and aver that his duties were merely general and supervisory and that a “gangway man” was allowed and required to choose his own materials. But, however this may be, the storekeeper was absent when the intestate procured the tackle in question.

The fact is undisputed that he and his companions selected it themselves. If he then assumed and undertook to perform the duty of another man, and injury resulted from an improper performance thereof, such injury would still be the result of his own negligence for which, of course, his estate cannot recover.

I am of opinion, therefore, that, in any view of the case, the plaintiff’s intestate was guilty of negligence and that the complaint should have been dismissed.

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

Daly and Van Hoesen, JJ., concur.


author: Van Hoesen, J. Daly, J.

text:
    Wm. W. Badger, Resp’t, v. Wm. H. Appleton et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1887.)

    1. Security for costs—Remedy when judgment reversed on which MONEY WAS DRAWN FROM COURT, AND COLLECTED ON UNDERTAKING.
    Where one Newhall, a non-resident plaintiff, had deposited money in court as security for costs, and as further security had given an undertaking and on a judgment in defendants’ favor, they had drawn the amount from the court and had collected a further amount upon the undertaking and afterwards the judgment is reversed, the plaintiff is at liberty to apply for an order of restitution under which defendants would be compelled to refund the money received or to bring an action for money had and received. ,
    2. Same—Power of the court in case of insolvency.
    The court had the power, in case of the insolvency of Newhall or his inability to pay a judgment to make an order for the disposition and safe keeping of the money to await the final determination of the action.
    3. Same—Order permitting re-deposit no bar to assignee’s action for THE AMOUNTS.
    Where the assignee of Newhall brings an action for the money so obtained by the defendants and before issue joined, they obtain an order granting leave to them to deposit the two specific sums with the clerk of the court, the order, being merely permissive and not restraining Newhall from prosecuting his claim, is no bar to the action.
    The facts gathered from the evidence are, that one New-hall, the assignor of the plaintiff, in 1878, brought suit against the defendants, and upon the second trial of the action the defendants obtained a judgment for costs, and the clerk of the court paid over to them $500. That had been deposited by Newhall, a non-resident, as security for costs.
    Newhall having appealed from the judgment, he was obliged to give further security for costs, as a non-resident, and gave an undertaking. The general term affirmed the judgment, with costs, amounting to $113, which amount the surety paid, being reimbursed by Newhall.
    On appeal to the court of appeals, the judgment was reversed and new trial granted, and upon a new trial the plaintiff (Newhall) obtained judgment, from which defendants have appealed, but which has not yet been decided.
    Newhall, on August 24, 1886, assigned his claim to the moneys drawn from the court and collected from the surety by the defendants to this plaintiff, and on August 25 this action was commenced to recover the same.
    A motion was made by defendants August 26, and an order obtained September 4, by which they were “granted leave to pay the said sums of $500 and $113 to the clerk óf the court, to be retained until the determination of the action as security for costs on the part of the plaintiff (Newhall), as a non-resident,” etc., and the defendants set up these facts in their answer.
    Plaintiff obtained judgment in the city court, which was affirmed by the general term of that court, and from that judgment the defendants appeal to this court.- ' . -i

      Campbell & Paige, for appl’ts; William W. Badger, for resp’t.
   Van Hoesen, J.

The defendants Appleton drew from the clerk of the superior court the moneys that Newhall had deposited with him as security for costs, and collected also $113 from the surety who had signed an undertaking for costs that Newhall had been ordered to give, upon- Appleton’s application.

After the judgment in Appleton’s favor had been reversed by the court of appeals, Newhall was at liberty to apply to that court for an order of restitution, under which the Appletons would have been compelled to refund to him the moneys they had received from the clerk and collected upon the undertaking, or to bring an action against the Appletons for money had and received. The remedy by action, and the remedy by motion for restitution, are cumulative. Lott v. Swezey, 29 Barb., 87.

Newhall did not at once resort to either of those remedies. As the judgment of reversal provided that there should be a new trial, with costs to abide the event, he determined to wait till he had recovered a judgment in his favor before making an effort to compel the Appletons to repay to him the sums that they had collected as costs.

In time he succeeded in getting judgment against the Appletons, and then he demanded from them the return of the moneys that they had held in their hands for almost five-years. Of course, the Appletons were liable to pay interest, on those moneys, but their counsel devised a plan that it was hoped would save them from the payment of interest.

That plan was to re-pay to the clerk of the superior court the moneys they had drawn out, and also to lodge in his hands the money they had collected from Newhall’s surety, and then have the aggregate sum treated as if it had always been in the custody of the court. Accordingly the Appletons moved that leave be granted to them either to retain in their possession the moneys they had collected, or to pay those moneys to the clerk, to be by him retained till the final determination of the action, “as security for costs on the part of the plaintiff as a non-resident.”

' It was in the power of the superior court, in case of the insolvency of the appellant (Newhall), or his inability to pay the judgment in case the respondents (the Appletons) should be successful upon the new trial, to withhold the moneys collected to await the final determination of the action, and to make such order for their disposition and safe keeping meanwhile as it deemed proper. Marvin v. Brewster Iron Co., 56 N. Y., 670.

The only question here is, whether the superior court did exercise that power ? The order of the court is, “The defendants are hereby granted leave to pay said sum of $500 and $113 to the clerk of this court, to be retained by him until the final determination of this action, as security for costs on the part of the plaintiff as a non-resident, and that when so paid, the clerk of this court shall retain said sums, accordingly. ”

It appeared to the superior court that the Appletons had appealed from the judgment that Newhall had recovered against them, and that some litigation must be had before the action reached its end. The first inquiry is, what construction would the superior court have placed upon its own order if Newhall had applied for an order of restitution against the Appletons ?

Would it have held that the meaning of the order was that the money should be impounded till the appeal of the Appletons had been disposed of, and the action definitely decided; or would it have held that the order did not affect the rights and remedies of Newhall, because it merely granted to the Appletons, at their solicitation, permission to do an act that could not injure Newhall, that is, to pay into the clerk’s hands money that was not his, and which he made no claim to ?

I find in the language of the order nothing that restrains Newhall from prosecuting his claim for reimbursement, or adjudges that until the final determination of the action his right to reimbursement should be held in abeyance.

As respects the Appletons the order is merely permissive, for it did not command them to deposit the money with the clerk. As it imposed no obligation upon one party to the action, it is not likely that it was intended to take away the rights of the other. Surely it was not the intention of Judge Freedman to make Newhall’s right to reclaim his money depend upon the action that the Apple-tons might determine to adopt respecting the deposit of the money with the clerk.

Again, if Judge Freedman supposed that he was determining what the rights of Newhall were, it is highly improbable that he would have failed to require the Appletons to make provision for the payment of interest upon the money for the years that they had the use of it.

There is no doubt as to what the counsel for the Apple-tons intended to be the effect of the order, but there seems to me to be great doubt as to whether the court intended to do anything more than decide that there was no good reason why the money should not be placed in safe custody, and that as the rights of Newhall were not affected, he had no occasion to object to the order.

The intention of the court to deprive Newhall of his right of action, and his right to restitution, is not so clear as to warrant us in holding that the order of Judge Freedman is a bar to this action. We therefore affirm the judgment, with costs.

Daly, J.

I concur in the decision reached by Judge Van Hoesen, on the ground that the party who deposited the money and gave the undertaking as security for costs has recovered judgment in his favor, and is therefore entitled to an action for the moneys which his adversary had drawn out of court and collected on the undertaking in satisfaction of the judgment which he originally recovered.

If Newhall had merely secured a reversal of the latter judgment, he would have an action for the recovery of the money collected on the undertaking, but as to the money drawn out of court, he would be only entitled to an order that it be restored to abide the event of the action.


text:
    Joseph S. Cohn, and others, as Adm’rs of Henry S. Cohn, Resp’ts, v. Joseph Husson, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1887.)

    1. Bills and notes—Exchange notes—Action on.
    Each party upon an exchange of notes is bound to pay his own, neither to have vitality as against the other unless so respectively paid, and when the administrators of 0. have taken up the notes given by him, an action is properly brought on a note of H., given in exchange for one of them.
    2. Same—Practice evidence—Proving course op dealing.
    Notes that the parties had exchanged with each other were properly admitted to show the course of dealing between them. In proving a course of dealing between parties it is discretionary with the court to say how far back the proof shall go, as long as all the evidence is of the same character.
    3. Same—Answer to question by witness—Refusal of court to strike out—Remedy.
    When f£n improper answer, which might have been properly stricken out was not, the remedy of the injured party is to ask that the jury be instructed to disregard the evidence.

      Abraham Kling, for resp’ts; Edward P. Wilder, for appl’t.
   Daly, J.

The action was brought upon a promissory note for $750, dated December 11, 1878, made by Joseph Husson, the defendant, to the order of Henry S. Cohn, Plaintiff’s intestate, payable five months after date at the Brooklyn Bank in the city of Brooklyn.

It was an exchange note; Cohn having made and delivered to Husson ms own note of the same date and amount, which Husson used, having it discounted by George B. Ripley & Co., and which, after it fell due and was protested, was taken up by the administrator of Cohn, with two other notes of his which had also been discounted for Husson by Ripley & Co., all three aggregating $2,200. Cohn, in his lifetime, had paid $1,700 to Ripley & Co. on account of the three notes, and after his death A. B. Cohn, one of his administrators, gave his own note to the holders for the balance and received the notes for the estate. This gave the administrators the right to recover upon the notes of Husson which had been given to Cohn in exchange for the latter’s notes thus paid and taken up by him and by his estate. Bach party, upon an exchange of notes, is bound to pay his own, and this action is properly brought upon defendant’s note. Wooster v. Jenkins, 3 Den., 187.

The answer sets up the agreement which the law implies, viz.: That each was to pay his own note, and that neither (note) was to have vitality as against the other unless so respectively paid.. The defense pleaded was that Ripley & Co. were still the holders of Cohn’s note, but on the trial it was shown they had been paid as above stated, and that his administrators held them, and the defense, therefore, failed.

It is urged, however, on this appeal that plaintiffs should not recover because the said three notes of defendant are set forth in the inventory of the estate of Cohn as “accommodation” notes, which represent the amount of $1,700 paid by deceased; also that the administrators, in making personal demand of payment of defendant before action, did not claim upon defendant’s three notes, but the notes of their intestate which they had taken up, and that the plaintiffs, on the trial, claimed to recover on such notes; and the argument is that those notes were discounted by Ripley for. Cohn’s benefit, and not for defendant’s, and, therefore, that defendant’s notes given in exchange for them never became legal obligations.

All the elaborate speculation on this point in appellant’s brief, goes for naught, however, in the fact of defendants admission in his answer, that he used the plaintiff’s intestate’s notes, and transferred the same to George B. Ripley & Co., and his statement on the trial that he got the money on them.

It is also urged that neither Cohn nor his administrators had the right to take up his notes, as Husson might have a good defense upon his endorsement as against Ripley & Co., who had it is alleged discounted them usuriously for less than their face. As an exchanged note is given for value, and may be sold for any sum less than its face there is no force in this objection. Wooster v. Jenkins, above cited.

The further objection is made that the administrators can recover on the notes of defendant no more in the aggregate than the $1,700 paid by Cohn on taking up his own notes: and that as they have already obtained judgment in another action upon another note for $750, the balance should be be apportioned in some way upon the note in suit, and the other unpaid note still held by them.

The payment by the administrators of the difference between the $1,700 and the $2,200 which the notes aggregated, although such payment was by a note of one of them accepted by Ripley & Co., must be taken into account the same as a cash payment, the presumption being that the maker of the note is solvent and will pay. But if it were not to be so considered, the recovery on the note in suit here, together with that in the former action, does not appear to be greater than the $1,700 cash paid by Cohn, and the defendant is not yet compelled to pay more upon his own notes than Cohn was compelled to pay upon his. There is, however, no force in the objection.

The defendant set up in his answer as a counter-claim, a note made by Cohn on August 11, 1879, for fifty dollars, payable two months after date to the order of Joseph Hus-son. The plaintiffs in their reply alleged that the said note had no legal inception, and was one of a series of notes given to the defendant without consideration and purely for his accommodation.

The chief contention upon the trial was upon this issue, and the principal exceptions taken by defendant were to rulings upon evidence with regard to it.

The allegation of the reply that the note set up in the counter-claim was given for defendant’s accommodation was amply proved. The plaintiffs put in evidence a note of defendant for the same amount, dated the same day, and payable at the same time to the order of their intestate.

It was to be inferred from the two obligations that they were exchanged one for the other. The fact that notes were in defendant’s possession at the time of the trial is claimed to be evidence that his own note was taken up and paid by defendant after it had been used and discounted by Conn, while Cohn had not paid his note on which the counter-claim is based, and that the latter is, therefore, established as a valid obligation in defendant’s hands.

To this it is a sufficient answer to say that defendant, although he went upon the stand as a witness in his own behalf, and testified, did not attempt to show that he had taken up and paid his own note, nor that Cohn had used and discounted it, and the presumptions from his possession of it are destroyed by this silence and his admissions.

These admissions, as testified to by one of the administrators, and by Horace Ripley, of Ripley & Co., respectively were as follows: When Ripley & Co. held the notes above referred to as discounted by them, the defendant told Horace Ripley that he intended to pay the notes, and never at any time made any claim that Cohn owed him; and after the administrators had taken up the notes, A. B. Cohn, one of the administrators, went to him for payment, and he stated that he would pay them, that Cohn had nothing to do with them and he never made any claim that he held any note against the estate, nor made any claim of any kind; but stated that the deceased loaned him his notes frequently when he wanted them, and that he got them discounted, and that,the estate had nothing to do with paying them; he would settle with Ripley.

It was also shown by the introduction of a number of notes on both sides that the deceased and Husson had exchanged notes frequently up to the time of the death of the former. Objection was made to the introduction of these notes on the part of plaintiffs, but they were properly admitted to show the course of dealing between the parties, and did not mislead the jury. In fact, as defendant produced a greater number of such notes than plaintiffs did, the real danger lay in their possibly deeming that the ballance of indebtedness was against plaintiffs’ intestate, and finding accordingly. They found on the contraiy for plaintiffs on the counterclaim, a result which was justified by the admission of defendant tacit and other, and by the production of the duplicate or exchange note of August 11, 1879, to which I have already referred.

All exceptions to the admission of these notes, and of admissions of defendant concerning them, and of the claim he made or did not make concerning them, are not well taken. The evidence was material.

The court excluded two notes offered by defendant as too remote to bear upon the issues, because they were made in 1877, and the note counterclaimed was made in August, 1879. This, was not error. The defendant had proved a larger number of notes than plaintiff had, so that these were not essential to show a balance in his favor, and they had no relation whatever to the counterclaim. In proving the course of dealing between the parties, it was discretionary with the court to say how far back the proof should go, as long as all the evidence was of the same character.

The exclusion of the mutilated note of the plaintiff’s intestate did no injury to the defendant, because, as has been said, the notes admitted showed a balance in his favor, and he had all the benefit of any inference from that fact. The exclusion of defendant’s check, paid in taking up some note of the intestate which had not been proved, was not error.

The last exception remaining to be considered is that taken by defendants to the refusal to strike out the answer of the witness to the question, “What became of the other two notes which are mentioned in this inventory?” The question was objected to, but the objection was overruled, because the interrogatory was not improper and did not ° call for incompetent testimony. The answer: “On one of them suit was brought and judgment recovered about four weeks ago, and the money was paid up on it; the other one is in suit still, and the third one is here,” was, however, improper, and might have been stricken out with propriety when the motion was made.

I think it was not error, however, for the court to refuse to do so, the remedy of the injured party in such a case being to ask for instructions to the jury to disregard the evidence. Platner v. Platner, 78 N. Y., 101.

The jury had ample evidence before them upon which to find a verdict in the plaintiff’s favor—evidence which is satisfactory and convincing, and the verdict should not be disturbed.-

The judgment and order appealed from should be affirmed, with costs.

Larremore, Ch. J., and Allen, J., concur.


text:
    Max Doctor and Simon Hatch, App’lts, v. Patrick J. Gilmartin, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 4, 1887.)

    1. Principal and agent—Notice of revocation of agency.
    Where third persons deal in good faith with one who was duly authorized as an agent, a revocation of the agent’s authority will not affect the-dealings of such third persons with the agent until notice is given to them.
    2. Same—Fraudulent representations of agent—When cannot recover BECAUSE OF. ,
    If the plaintiffs have a right to recover the value of goods from the former principal, they are in no position to claim damages from the agent on the ground that he fraudulently represented himself to be the agent.
    3. Same—Evidence of representations of fraudulent intent.
    Where a representation is shown to have to have been true if made at. one time and untrue if made subsequently, the evidence that it was made after it ceased to be true ought to be clear and positive, and in order to convict the defendant of having bought goods with fraudulent intent there must be some evidence to warrant a jury in finding that he never-intended to pay tlie balance.

      Charles A. Hess, for app’lts; T. C. E. Ecclesine, for resp’t.

       Affirming 5 N.Y. State Reporter.

   Per Curiam.

Where third persons deal in good faith-with one who was duly authorized as an agent, a revocation of the agent’s authority will not affect the dealings of such third persons with the agent, until notice of the revocation is given to them. Wait’s Law of Actions and Def., vol. 1, 290; Story on Agency, sec. 470.

There is no doubt that Gilmartin had at one time a valid power of attorney from Gillen, and that if there ever was a. revocation of that power the plaintiffs did not have notice of it at the time the goods were delivered to Gilmartin.

It is difficult to see, therefore, why the plaintiffs have not a right to recover the value of the goods from Gillen; and if such a right exists, they are not in a position to claim damages from Gilmartin on the ground that he fraudulently represented himself to be Gillen’s agent.

But aside from "that, we think that the evidence fails to-support the charge that Gilmartin obtained the goods by false representations, or that his intention was to defraud the plaintiffs.

In 1880 or 1881, Gilmartin failed, and Gillen appears to have established himself in the business of a butcher, and to have employed Gilmartin as his agent and manager. He gave to Gilmartin a power of attorney to buy, sell, draw checks, and do any act necessary to be done in the conduct of the business.

Gilmartin thereafter bought some goods of the plaintiffs for cash, and for several years bought goods on credit, for a large part of which he paid by checks drawn in the name of “Gillen, by Gilmartin, attorney.” At the end of several years Gilmartin ran up a bill, the whole amount of which he did not pay, and the plaintiffs, discovering that Gillen had continued in the business only three or four months, now seek to hold Gilmartin liable on the ground that he obtained the goods for which he failed to pay by fraudulently representing himself as Gillen’s agent during the entire course of his dealings with them.

One of the plaintiffs, Mr. Hatch, swore that Gilmartin told him that Gillen took charge of the inside of the shop, and that he (Gilmartin) did the buying. This was not a representation that Gillen was the purchaser of the goods, or the owner of the shop. At most, it was a representation that Gillen assisted in the business.

But even if it were to be regarded as a statement that Gillen was the responsible principal, it would have been true, and it was for the plaintiffs to prove that at the time it was made it was not true. Hatch cannot say at what time the statement was made, though he thinks that it was between 1883 and 1884. Where a representation is shown to have been true, if made in 1881, and untrue if made subsequently, the evidence that it was made after it had ceased to be true ought to be clear and positive. It certainly is not so in this case.

Again, the intent to defraud was not proved. For several years Gilmartin made partial payments on account, and in order to convict him of having bought the goods with fraudulent intent, there must be some evidence to warrant a jury in finding that he never intended to pay the balance.

The case contains no such evidence.

The judgment should be affirmed.


text:
    Cornelia C. Carswell, Resp’t, v. Ellen S. Alden, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1887.)

    1. Practice—Action for chattels—What answer mat contain in justices court—Code Crv. Pro., § 1733. 1
    Section 1733, Code Civ. Pro., is not applicable to courts of the justices of of the peace or to district court of the city of New York.

      2. Same—Evidence—Judgment in another action.
    The judgment in another action brought by a third party against the plaintiff herein, was not evidence in this action of any matter that might have been decided in that other action.
    Appeal from a judgment of the district court of the city of New York. The action was brought to recover the possession of certain chattels or their value, and judgment was given in favor of the plaintiff for damages and costs.
    The defendant set up in her answer that the property was in the possession of and held by one William H. Alden, Jr., who was entitled to the possession by virtue of a special property or lien under the statute for board due him and also by virtue of an agreement.
    On the trial the defendant offered in evidence, for the purpose of showing that the plaintiff was indebted to the said Alden for board, a judgment obtained in an action by him against plaintiff for board and lodging, which was admitted in evidence.

      Charles H. Lovett, for app’lt; C.H. Machín, for resp’t.
   Per Curiam.

Section 1,723, upon which the defendant relies, is not made applicable to courts of justices of the peace, or to district courts of the city of New York. The defendant was not, therefore, in a position to avail herself of the sale of the lien, which it is said that William H. Alden, Junior, claimed upon the chattels that are the subject of the controversy. Stowell v. Otis, 71 N. Y., 368.

The judgment in the action brought by William H. Alden, Jr., against the plaintiff was not evidence in this action of any matter that might have been decided in that action. Though the evidence would have warranted a judgment against the plaintiff, upon the ground that the goods were not detained from her by the defendant, there is nevertheless sufficient evidence to support the judgment in the plaintiff’s favor.

Judgment affirmed._


text:
    Emanuel Weil, Resp’t, v. Frank Eckstein, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1887.)

    Appeal—When leave to go to court of appeals will be denied.
    A motion for leave to go to court of appeals will not be granted where there is nothing in the appeal worth considering, but questions of fact.

      S. H. Randall, for app’lt; Herman Fox, for resp’t.
   Per Curiam.

There is absolutely nothing in this case to warrant us in sending it to the court of appeals.

The exceptions taken at the trial present no question of law that is either novel or unsettled. It is impossible that any court could consider the testimony that was excluded admissible.

Of course the court of appeals is not the proper tribunal to Esten to arguments concerning controverted questions of fact; and there is nothing in this appeal worth considering but questions of fact.

Motion for leave to go to the court of appeals must be denied with costs.


author: Landon, J. Learned, P. J.

text:
    Jansen Hasbrouck, Resp’t, v. Nelson H. Burhans, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed January 24, 1887.)

    1. Execution—Sheriff has no power to sell property without.
    The issue of the execution to the sheriff is vital to his power or jurisdiction to sell the judgment debtor’s property under it. He has no power to sell unless he has the execution.
    2. Same—Sheriff has no power or duty to judgment creditor without—Issuing execution a private act.
    The sheriff, though a ministerial officer, is charged with no power or duty touching the property of a judgment debtor, with respect to the judgment, except at the instance of the judgment creditor, who in order to set him in motion and clothe him with power must first place an execution in his hands. The doing of this is strictly a private act in which the public has no concern,
    3. Same- -Recital of the issuing of, in sheriff’s deed, does not prove it —Hot admissible in evidence.
    The recital of the issue of an execution to a sheriff, in a sheriff’s deed given on the sale of the property of a judgment debtor, standing alone, unsupported by any evidence of possession under the deed, or recognition by the judgment debtor of its validity, or other acts in pais tending to support the deed or the recital, is not evidence of the fact of the issue of the execution against those claiming under the judgment debtor. And was properly excluded as irrelevant and immaterial.
    4. Same—Presumption of issuing.
    The search by the county clerk and his failure to find an execution, standing alone, affords no presumption of its loss. There must in addition be some evidence that the execution some time existed.
    5. Presumptions—Ancient deeds must be supported by matters in pais.
    Presumptions are indulged either in favor or in opposition to ancient deeds according to the matters in pais which accompany them.
    6. Same—Adverse possession—When it commences—Code Civ Pro., 88
    365, 368.
    Where there is no written lease the tenancy will not be presumed to continue after twenty years from the last payment of rent. After that time it will be presumed that the former tenant held under a right adverse to his former landlord. Twenty years of such adverse possession bars an action to recover possession.

      Preston & Chipp, for resp’t, Howard Chipp, Jr., of counsel; William Lounsberry, for appl’t.
   Landon, J.

The action is ejectment. Both parties claim title under Philip Smedes, who was in possession of the premises in 1810 and continued in possession until his death, about the year 1826.

The plaintiff claimed to establish title as follows: He proved the recovery of a judgment by one Swart against Philip Smedes in the court of common pleas of Ulster county, January 19, 1818, for the sum of $506.72 and $18.83 costs. He then proved by the deputy county clerk that he had made diligent search for an execution or fieri facias upon this judgment and could not find any in the clerk’s office. He then read in evidence, over the objection of the defendant, a deed dated October 15, 1818, from Charles Bruyn, sheriff of the county of Ulster to Abraham Hasbrouck, purporting to convey to him the interest of Philip Smedes in the premises in question. This deed recited the issue to the sheriff of the writ of fieri facias, commanding him in the usual form of an execution to collect for William Swart $506.72, etc., of Philip Smedes, and that having thereupon seized and sold the premises in question to Abraham Hasbrouck. No other evidence was given of the existence or issue of the writ of fieri facias. The plaintiff next proved that he was the residuary devisee of Abraham Hasbrouck, which devise vested in him whatever title Abraham Hasbrouck had to the premises.

It appeared that Abraham Hasbrouck never took possession of the premises. Philip Smedes continued in possession during his fife; upon his death his widow Margaret, remained in possession until her death, which occurred about 1848. Philip and Margaret had a daughter Maria, who lived with her mother on the premises and continued in possession until her death in April, 188L Maria left two children, James and Sarah, and the children of a deceased son, Andrew.

In 1882 James and Sarah conveyed to Sarah Turk, who thereupon brought an action of partition, making the children of Andrew Smedes parties. This resulted in a judgment and sale, under which the defendant, in 1883, obtained the title under which he took and retains posession.

The court gave judgment for the plaintiff, finding among other things that an execution was duly issued to the sheriff upon the judgment of 1818 against Philip Smedes.

We think this finding cannot be sustained.

The issue of the execution to the sheriff was vital to his power or jurisdiction to sell. He had no power to sell unless he had the execution. Jackson v. Hasbrouck, 12 Johns, 213; Yates v. St. John, 12 Wend., 74, He was a ministerial officer, but as such was charged with no power or duty touching these premises with respect to this judgment, except at the instance of William Swart, who, in order to set him in motion and clothe him with power, must first have placed an execution in his hands. The doing of this by Swart would have been strictly a private act, in which the public would have no concern, unless the recital of the issue of the execution in the deed is evidence of its issue, there is no evidence, and the deed of 1818 would be worthless, because not shown to be authorized.

It is undoubtedly settled law that the recital, standing alone, unsupported by any evidence of possession under the deed, or recognition by Philip Smedes of its validity, or other acts in pais tending to support the deed or the recital, is not evidence of the fact of the issue of the execution. Parks v. Jackson, 11 Wend., 425; Hill v. Draper, 10 Barb., 454; Hardenberg v. Lakin, 47 N. Y., 109; Reed v. McCourt, 41 id., 435; Williams v. Peyton, 4 Wheat., 77.

The learned counsel for the plaintiff cites cases in which it is held that public officers are presumed to have done their duty, and that official acts are presumed to have been regularly and properly performed. Hartwell v. Root, 19 Johns., 345; Doe v. Phelps, 9 id., 169; Ford v. Walsworth, 19 Wend., 334; Wood v. Morehouse, 45 N. Y., 368; Clute v. Emmerich, 21 Hun. 12; Rice v. Davis, 7 Lans, 393; Ensign v. McKinney, 30 Hun, 249.

These cases do not aid the plaintiff, for the reason that until it is shown that the sheriff had an execution, it is not shown that he had any duty to do. The recital in the deed may bind the plaintiff and all persons in privity with him, but with respect to Philip Smedes and the defendant, the recital remains the mere declaration of a stranger, until the authority to make it is produced. The objection to the admission of the deed was, that it was irrelevant and immaterial; this objection was made after the evidence of the existence of an execution had been exhausted. The plaintiff could not have produced any further evidence, and honce the objection was sufficient.

The search by the county clerk and his failure to find an execution, standing alone, affords no presumption of its loss. There must, in addition, be some evidence that the execution sometime existed. Leland v. Cameron, 31 N. Y., 115; Mandeville v. Reynolds, 68 id., 528.

Presumptions are indulged, either in favor of or in opposition to ancient deeds, according to the matters in pais which accompany them. Clark v. Owens, 18 N. Y., 434; Wilson v. Betts, 4 Den., 212.

If the plaintiff were defending a possession timely taken under the deed of 1818, and since continued, the presumption would be strong that the recital of the issue of the execution was true. We should naturally reason that if it had not been true, Philip Smedes would not have surrendered his land, and that the end accomplished resulted from the performance of all the acts necessary to that end.

But where there has been no possession, and no other acts indicating any claim under the deed, and the deed recites an execution upon which its validity depends, and no other trace of that execution can be found, we should naturally conclude that the deed had performed no function, because, from the lack of the execution, it could not rightfully perform any. Such a deed, under such circumstances, instead of gathering vigor with time, waxes stale.

The omission to take possession may be excused or explained consistently with the right to take it. Here no explanation is offered except that the Smedes were poor colored people. If their long possession was an indulgence granted by Hasbrouck, some slight evidence to that effect ought to be given.

Philip Smedes was in possession as owner in 1818, the date of the sheriff’s deed. Before the deed his possession was adverse to Abraham Hasbrouck; after the deed there is no affirmative evidence that it was changed. The justice finds that he continued to occupy the premises after the deed as before. After him, his widow, his child, and his grandchildren, in their turn succeeded him down to 1883, sixty-five years after the date of the deed. The twenty years which the law fixes as the limit, beyond which it is not usually necessary to preserve evidence of a right actually claimed and exercised, have been three times ex-haused. They, or the defendant, their grantee, need not prove the origin of their right; the right is presumed because they have held it so long.

Besides the plaintiff is barred by the statute of limitations, neither he nor his devisor having been seized or possessed of the premises within twenty years before the commencement of this action. Code, §365.

Suppose the deed of 1818 to have been valid, then the occupation by Philip Smedes would be deemed to have been under and in subordination to the legal title. Code Civ. Pro., § 368. Such subordinate possession, in the absence of explanation, will be deemed a tenancy at will. Jackson v. Sternbergh, 1 Johns. Cas., 153; Russell v. Doty, 4 Cow., 576; Jackson v. Graham, 3 Caines, 188.

There was no written lease, and no rent reserved or paid. Peter Smedes, and those holding under him, would, therefore, be deemed to. be such tenants at will for twenty years after the date of the deed of 1818. Code Civ. Pro., § 373. Whiting v. Edmunds, 94 N. Y., 314.

The section last cited, which is a reenactment of the revised statutes, declares that “this presumption shall not be made after the periods prescribed in this section.” That is to say, where there is no written lease, the tenancy will not be presumed to continue after twenty years from the last payment of rent. It must, therefore, thenceforth be presumed that the former tenant held under a right adverse to his former landlord; such adverse holding would have been stated in 1838, and having continued for forty-two years suffices to bar the plaintiff’s right of action.

Some evidence was given of the declaration of James Smedes, one of the three heirs at law of Maria Smedes, to the effect that the plaintiff owned the premises. Maria Smedes died in April, 1881, James died in August, 1882, and the plaintiff’s son, who testified to this declaration, fixes the date of it a year, and possibly two, before James’ death. If it was made while Maria was living it would not be competent to characterize her holding, however it might characterize his own if made after her death. If force should be given to this declaration, it would affect only one-third of the premises, and the plaintiff has recovered them all.

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

Boches, J.,. concurs.

Learned, P. J.

I think that this action is barred by the statute of limitations. The possession of Philip Smedes was originally adverse to any rights of plaintiff or of his ancestor, and it seems to me that the possession of Philip Smedes and of his successors has continued to be adverse.

I concur in the result.