author: BARRETT, J. WILLIAMS, J.

text:
    Michael Flynn v. Metropolitan St. Ry. Co.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Street railroads—Injury to child on track.
    A boy seven years old attempted to cross a track immediately in front of a horse car. The driver promptly turned the horses off the-track, but the dashboard knocked the boy down, and he was killed by a passing cart. Held, that negligence could not be inferred from the driver’s failure to apply the brake instantaneously with the primary duty to save the child from the horses. Williams and O’Brien, JJ,„ dissenting.
    'Appeal from trial term, New York County.
    Action by Michael Flynn, as administrator, against the Metropolitan Street-Railway Company. The complaint was dismissed, and plaintiff appeals.
    The action is for damages resulting from the death of James Flynn, a child between seven and eight years of age. The child was bright and intelligent. He was sent from' his home on the 31st of May, 1895, on an errand which required him to> go to a store on the east side of Tenth avenue, between Fortieth and Forty-first streets. Returning from his errand, the boy attempted to cross Tenth avenue from east to west at Fortieth street, and at or near the north cross walk. A Belt Line car,, going south passed in front of him. One of the defendants’ cars (a green car) was following on down the avenue, about 20 feet behind the Belt Line car. On. the other side of the Belt Line car, and 4 or 5 feet west of the railroad track, was. a cart loaded with stone, and being driven up the avenue, towards the north. The boy went on the track (in his effort to cross) behind the Belt Line car, and a few feet in front of the horses of the defendants’ car. Lie was going quickly. The driver of the car swung his horses to the left, and thus avoided a collision between the .boy and the horses. But the dashboard of the car—the side of the car nearest the west side of the avenue—struck the boy and knocked him down. He fell in front of the neighboring cart, which passed over his body and killed him. The driver of the car had one hand upon the brake when, with the other, he was swinging his horses to the left, but he did not at the same instant turn the brake or stop the car. He devoted himself at the moment exclusively to turning the horses to the left, and this was necessary to save the child from being struck by the horses. The complaint was dismissed, and the plaintiff appeals.
    Frederick H. Man, for appellant; Brownson Ker and John F. Tittle, for respondent.
   BARRETT, J.

—The question in this case is whether the driver of the car was guilty of negligence; that is, whether there was anything to go to the jury on that head. Hpon the question of contributory negligence, we think the case might have gone to the jury. It cannot be said, as matter of law, that the child failed to exercise that degree of care which might reasonably have been expected of him. As to the main question, to wit, the driver’s alleged negligence, the claim is that he made no effort to stop the car; that, while he was turning his horses to the left with one hand, he did not at the same time apply the brake with the other hand. It is clear that if the driver had applied the brake, and had not turned his horses to one side, the child would have been run over. The situation was critical, and the danger imminent. The horses were almost upon the child. There was the primary and immediate danger. What the situation imperatively demanded was that the driver should lend his energies to the swerving of the horses. He met that claim upon him with promptness and vigor. But it is said that he should have done more ; that in the midst of the excitement, and on the spur of the moment, he should have perceived the possibility of a later danger, and provided against it. There was no evidence tending to show that a driver, under such circumstances, could swerve his horses swiftly with one hand, and at the same moment adequately apply the brake with the other. Assuming, however, that the jury might have inferred that this was feasible, still the appellant’s contention would extend the rule of negligence into impossible channels. What was required of the driver was the reasonable care and diligence of a person endowed with ordinary capacity, and fairly equipped for the particular service in question. What the appellant calls for is, not ordinary care and prudence, but extraordinary capacity and foresight. The driver should, in this view, possess a mind capable of thinking coolly and deliberately, yet promptly, in the midst of excitement and danger. And this great and unusual power should be coupled with the physical capacity to perform simultaneously two distinct functions, each of which,. but for this capacity, might well require the use of both hands. "What is that but saying that unless a man possesses the highest ■attributes of mind and body, and exercises these attributes in the highest degree, a jury is authorized to find him guilty of negligence. We cannot concur in this extreme view. Negligence could not have been justly inferred from the conceded facts of this case. The utmost that could have been inferred was an error of judgment, namely, the possibility that the child might have been saved by the union of thought and action upon the double function. The rule is that, where there is so little evidence of negligence that no reasonable man could find from it the fact of negligence, a nonsuit should be directed. “ Negligence,” as was said in Sutton v. Railroad Co., 66 N. Y. 243, “ is ordinarily a question for the jury, but only when the facts would authorize a jury to infer it.”' We think negligence could not here have been inferred from the failure to apply the brake instantaneously with the performance of the primary and imminent duty. That duty was at all hazards to swerve the horses and save the child. The imminence of the immediate danger from the horses overshadowed all else. It was concentration upon the one crucial object which constituted care and prudence. The danger law in diversion or deviation. It is said, however, that the jury might have found that the driver could have applied the brake and slowed down before thé horses’ heads came so near the boy, and that, if this had been done, the accident might have been avoided with or without the sudden swerving of the horses’ heads. The difficulty with this position is that there was not a particle of evidence upon which the jury could have made such a finding, or have drawn such an inference. Indeed, there was but one witness—Thomas G. Kennedy—who said that the boy was as much as six feet in front of the horses when he went upon the west track, and that witness merely guessed ” at the distance. 'This is his testimony :

“ I guess the car was about six or eight feet from him at the ifcime he started to cross. The horses were going at the usual gait,—something like six miles an hour. Q. And with the horses going at the usual gait, six miles an hour, this boy starts in, six or eight feet in front, to cross over, and the driver, to prevent the horses from running him down, had to swerve them to one side ? A. To one side. The side of the car nearest the west side of the avenue hit him.”

All the other witnesses called by the plaintiff put the distance at but between two and three feet. Mary McAuliffe says :

“ I would put it between two or three feet in front. It was so near that the driver had to swerve the horses’ heads so that they would not hit him.”

William J. Hickey says that it was about the width of the car’s platform, which the foreman of the jury said was a couple of inches over two feet. Hickey then testified as follows :

“ The boy goes in front of the horses about two feet two inches from their heads, although this stone cart is coming along on the opposite side, right close to the track,—pretty close to the track. Q. And the horses miss him, because the driver swerves them to the east, but the dashboard strikes him and knocks him down under the cart ? A. Tes, sir.”

The last witness of all, Thomas Tregoning, made this still clearer. He testified as follows:

“ The boy'WS&.t so near in front of the horses’ heads that the driver, to prevent the horses’ heads from hitting him, had to swerve the horses to the east, and that brought him away from the brake, which is on the right,—on the west. Q. So that he couldn’t attend to both at the same time, and he took the horses, instead of the brake, as the quickest way to prevent the accident. That is the way it looked, didn’t it? A. Yes, sir.

This was substantially all the testimony upon the subject. Surely, from that testimony no jury could possibly have found or inferred that the use of the brake alone might have saved the boy. This testimony also accentuates the extreme difficulty of the situation, and shows most conclusively that the swerving of the horses was the urgent requirement of the moment. The driver’s act in doing what he did must indeed have been almost involuntary. It Avas the one thing which any driver possessed of the least presence of mind Avould have done. Had the driver attempted to do more, and failed, there would have been greater plausibility in attributing such failure to his negligence than there is in the present charge. For then it might Avith some shoAV of reason be asserted that, with the child almost under his horses’ heads, the difiver should have concentrated his efforts upon the one function Avhich the imminence of the danger called into immediate and exclusive play.

We think, therefore, that the complaint Ava-s properly dismissed, and that the judgment should be affirmed, with costs.

YAH BRUNT, P. J., and PATTERSON, J., concur.

WILLIAMS, J.

(dissenting). The action Avas brought to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The order dismissing the complaint Avas made at the close of the plaintiff’s evidence, no evidence having been given on the part of the defendant. In passing upon the correctness of this order, we are required to give the plaintiff the benefit of the most favorable finding of facts Avhich the jury Avould have been justified in making from the evidence. Having this rule in vieAV, the facts Avere as follows: The deceased Avas a bright, intelligent boy, seven years and eight months old, and lived with his parents on Fortieth street, Avest of Tenth avenue, NeAv York City. He Avas sent by his mother, at 445 r. m., on an errand Avhich required him to go to a store on the east side of Tenth avenue, betiveen Fortieth and Forty-first streets. After doing the errand the boy started to return to his home. There were two street-car tracks lying substantially in the center of Tenth avenue. The boy attempted to cross Tenth avenue from east to west, near the northerly cross walk, at Fortieth street. The pavement on the easterly side of the track in Tenth avenue was torn up and being repaired, so that teams were obliged to pass along the avenue on the westerly side of the tracks. As. the boy approached the tracks, a Belt Line car, so called,, was passing along towards the south on the westerly track, and about 20 feet behind it was the defendant’s car, also going south on the same track. On the westerly side of the Belt Line car, and 4 or 5 feet from it, was a cart loaded with stone, and being driven northerly along Tenth avenue. The boy crossed the easterly track, and went upon the westerly track behind the Belt Line car, and about 6 feet in front of the horses drawing the defendant’s car. He was walking quickly, but not running. The car was going about six miles an hour. The driver had the lines in one hand, and his other hand on the brake. He did not apply the brake or slow down the car at all, but swung his horses towards the/ east, to avoid their striking the boy. The car passed along, and the dashboard struck the boy, who was then just at the west side of the track, and threw him to the ground, under the cart loaded with stone, which was then near by; and before the boy could get away the wheel of the. cart passed over him, causing his death.

Upon these facts, there would seem to be no doubt but that, the questions of the negligence of the defendant, and the absence of contributory negligence of the deceased, were for the jury, and not for the court. The boy was clearly of sufficient age and intelligence to be chargeable with his own negligence, but he was a boy of tender years, and not a mature man. It is well settled that a boy of his age would not be chargeable with the same degree of care as a mature man would be. Stone v. Railroad Co., 115 N. Y. 104, 23 S. R. 551. And we think the age of the boy must also be considered, in determining the degree of care to be exercised by the driver of the car which would relieve the defendant from the charge of negligence. It was the duty of the driver to exercise such degree of care as was commensurate with the danger to be apprehended, and clearly more danger was to be apprehended, by reason of the tender age of the boy, than if he had been a mature man. The jury would have been justified in finding that the driver ■ was negligent, under the circumstances, in not applying the brake and slowing down the car; that he saw the boy, and was in a position to see all the danger surrounding him, and especially the presence of the cart loaded with stone, moving-northerly, and before it passed the Belt Line car, so as to be visible to the boy; that these dangers were visible to him in time to have enabled him to apply the brake, slow down his car, and so avoid any accident; that it was his duty to do this ; that he could do it; that he neglected to do it, and was therefore guilty of negligence. The jury would have been justified in finding that the boy was free from contributory negligence in attempting to cross the avenue and the tracks of the street railroad at the time and place he did ; that, when he started to cross the tracks, there was apparently a clear way, and a reasonable opportunity to cross safely, at least in the judgment of a boy of his tender years; that there was an open space of 20 feet between the two cars, and that the cart loaded with stone was hidden from his view behind the Belt Line car; that when he was part way across the track his passage was cut off by the loaded cart, and though he had actually crossed over the west track, in front of the horses, he believed it better to stop and let the cart pass than attempt to go further, and risk the danger of passing in front of the cart; that he was in a place of danger, and did the best he could under the circumstances to avoid injury; that he was so in danger by reason of the negligence of the driver in not applying the brake and slowing down the car ;'and that, under all the circumstances surrounding him, he exercised as much care and caution to avoid accident and injury as a reasonably careful and prudent person of his tender years would have done ; and, if the jury found this, then they might well find he was free from contributory negligence.

It is well settled that the rules as to the respective duties of foot passengers and street-railroad companies, as to the crossing of the tracks, are different from the rules applicable to travelers in the highway and steam railroads crossing such highways. In the case of steam railroads the travelers along the highway must, when they see a train approaching, wait for the train to pass, before attempting to cross over ; but, in the case of street railroads, foot passengers may cross over, though they, see cars coming. They must exercise care in so doing, and the street-car driver must exercise care also. Each must exercise such care as the circumstances of the particular case require, and the want of proper care on the part of either is ordinarily a question of fact for the jury, in view of all the circumstances surrounding them. The jury are to consider the evidence, and to draw the inferences therefrom ; and their judgment, and not that of the court, is to be taken as to the question of negligence and contributory negligence. There are cases in which the evidence is such that no inference can be drawn by the jury, other than that in a single direction; and then the court may and should take the case from the jury, and itself determine the facts and direct the verdict and judgment. This, I think, was not such a case. The questions of fact here were for the jury, and the case was improperly taken from their consideration.

It is said that it was impossible for the driver of the car, after he saw the boy crossing the tracks, to apply the brake and slow down the car, and at the same time turn his horses’ heads so as to prevent the horses from striking the boy. This was a question of fact for the jury, and not for the court. He held the lines in one hand, and the other hand was upon the brake. He saw, or could have seen, the boy when he started to cross the west track. The boy was then six feet from the horses’ heads. He might have acted at once, using one hand in ‘turning the horses and the other in applying the brake. Certainly it was for the jury to determine whether he could or not. The driver was not himself sworn. He did not testify that he could not do this. Hntil he had spoken upon the subject, the court could not say, as a matter of law, that he could not do this. It was, at most, a matter of inference to be drawn from the circumstances; and the jury, and not the court, were to draw the inference the one way or the other. It is said that some of the witnesses gave their opinions on the subject. Their evidence was in answer to questions formulated by defendant’s counsel, he putting the words in their mouths. But, at all events, their opinions were not conclusive; the conclusion was to be drawn by the jury, and the evidence of the opinions of witnesses could, at most, aid the jury, and did not conclude them as to the determination to which they should arrive. The driver might well have refused to say, when sworn, that he could not have turned the horses’ heads and operated the brake at the same time. Hntil he had been. heard on the subject, certainly the question was not one the court could take from the jury and itself determine. Again,, it is said that the driver was called upon to act suddenly, and used his best judgment under the exigencies of the occasion, and was not guilty of negligence for an error in judgment as to the best course to adopt. But the court had no power to> determine that his action was merely an error in judgment when called upon to act in an emergency. He saw, or should have seen, the boy when, six feet in front of the horses, he went upon the west track. Before the boy had fully passed over the track, the horses’ heads had come so close to him that it was necessary to turn their heads to avoid striking him. The jury might find that due care on the driver’s part required him to apply the brake and slow down the .car as soon as he-saw the boy was stepping upon the track. How could the court say that the driver could not have done this before the horses’ heads came so near to the boy ? Certainly, until the driver had been sworn, and testified that he did not see the boy until his horses’ heads were near him,—until he asserted that his action was in accordance with his' best judgment under the circumstances,—the court could not take the question of inference from the jury, and say that the driver’s failure to apply the brake was an error in judgment under the sudden exigencies of the occasion, and was not the result of his voluntary failure to apply the brake and slow down the car. In any view of the case, the question of the defendant’s negligence was one of fact for the jury, and not of law for the court.

The judgment appealed from should be reversed, and a new trial ordered, with costs to appellant to abide event.

O’BBIEH, J., concurs.


source: Caselaw Access Project

author: PATTERSON, J.

license: Public Domain

text:
    The People v. United States Mut. Acc. Assn. of City of New York. Matter of Moses.
    (Supreme Court, Appellate Division, First Department.
    November 20, 1896.)
    Receivers—Orders of court—Who hay hove to vacate.
    A member of a mutual benefit association, acting for himself alone? cannot apply to vacate an order authorizing the receiver of the association to levy assessments and to enforce payment, as such order is not an adjudication against him.
    Appeal from special term, New York County.
    Application by Baphael J. Moses to vacate an order authorizing the receiver of the United States Mutual Accident Association of the City of New York to levy assessments on the members of said association. The application was denied, and petitioner appeals.
    R. J. Moses, in pro. per; David Murray, for respondent.
   PATTERSON, J.

—This is an appeal from an order made at special term denying the prayer of the petitioner, Moses, who applied to the court to set aside an -order made on the 10th of July, 1896, by which order the duly-appointed receiver of the United States Mutual Accident Association was authorized and directed to require the members of that association to pay into his (the receiver’s) hands a certain sum of money to meet obligations of the association, for which he claimed members thereof "were liable in varying amounts. The order last referred to contained a schedule of the contributive amounts claimed from the members for certain fixed periods of three months each, and the receiver was directed to notify the members that they were required to pay the several amounts demanded of them, and,-in the event of any member failing to make payment pursuant to such demand, the receiver was authorized and directed to institute such proceeding as he might be advised in courts of competent jurisdiction to enforce payment. On the 23d of September, 1896, the petitioner, Moses, from whom the receiver had demanded the sum of 2J cents as his contributive share of the indebtedness above mentioned, presented his petition to the court, setting forth certain facts, and asking the relief above mentioned: and, further, that the receiver be ordered to return to all parties any money that may have been paid to him in response to any demand made under such ord< r sought to be vacated.

It is apparent from all the papers now before us that Mr- . Moses, the petitioner, represents no one in this proceeding but himself. He is not authorized to speak, so far as this record shows, for any one but himself, although he says that his application is made on his own behalf and that of thousands of others similarly situated; but he shows no request or authority from them. He seeks by this petition to have determined in this summary manner the question of the right of a receiver of an insolvent mutual benefit association to require payment from the members thereof of assessments for the payment of death claims presented to the receiver by those holding them. The petitioner asserts that he was not a member of the association for several years last past, and was not a member at the time of the appointment of the receiver, or at the time of the commencement of the proceedings resulting in the appointment of such receiver; and he claims that, inasmuch as the application of the receiver for permission to levy the assessment and to enforce its collection was made without notice to him, the order is not binding upon him.

We are clearly of the opinion that the petitioner had no standing in court to make this application, and that it was properly denied by the learned judge at special term. There is no adjudication whatever made against him which compels him to pay the 27 cents to the receiver. That receiver "has merely applied to the court in the ordinary way for leave to make an assessment upon persons alleged to be liable, which assessment he claims to be necessary in order that he may realize funds to pay the existing indebtedness of the members of the association to which, it is alleged, this petitioner belonged. It is merely the ordinary application of a receiver to the court for permission to do that which he deems to be necessary to further the purposes of the receivership, and the court hass upon evidence satisfactory to it, authorized the receiver to act. The order does not require Mr. Moses to pay 27 cents, or any other sum of money. The direction to the receiver to bring suit is merely the ordinary authority given to receivers to enforce claims which they allege to ‘exist. Mr. Moses is not cut off from nor interfered with in the interposition of any defense he may have to the claim made against him. It will be time enough for him to present, by-way of defense, any objection he may have to the proceedings of the receiver, when he is brought into court in an action instituted by the receiver to enforce the extensive demand which Mr. Moses fears will be urged against him.

The order denying the petition was right, and must be affirmed with $10 costs and disbursements.

.All concur.


text:
    Henry A. V. Post et al. v. Charles H. Green et al.

    (Supreme Court, Appellate Division, First Department.
    November 20, 1896.)
    Conditional sales—Rights of seller—Notes given in lieu of cash.
    A note given in lieu of a cash payment, according to the terms of a contract of sale, is not invalidated by the fact that, on failure of the buyer to make other payments provided for, the seller took possession of the property, and sold it without having recourse to the method prescribed in the contract.
    Appeal from trial term, New York County.
    Action by Henry A. V. Post and others against Charles H. Green and another on a promissory note. From a judgment entered on a verdict in favor of plaintiffs, and from an order-denying a motion for new trial, defendants appeal.
    A. Gruber, for appellants; E. B. Hill, for respondents.
   PATTERSON, J.

—This action was brought to charge the defendants as indorsers of a promissory note made by the Washington City &' Point Lookout Railroad Company, which note was delivered to the plaintiffs as collateral security for a loan of money made by them to the railroad company. The note in suit is dated the 24th day of January, 1891, and was transferred and delivered to the plaintiffs on the 1st day of April, 1891. It was originally given by the maker to the American Car & Equipment Company, under and pursuant to a -contract by which the railroad company became possessed of certain rolling stock, manufactured for it by the American Car & Equipment Company, which agreement is to be in the form of a lease of such rolling stock, but which also provides that, upon the payment by the railroad company of certain amounts at certain times, the absolute title of the rolling stock shall vest in the railroad company. Among the conditions of the agreement referred to is one which required the railroad company to make to the American Car & Equipment Company “ a cash payment of $3,575, to be represented by one three-mouths note of the Washington City & Point Lookout Railroad Company, payable upon delivery of the said railroad equipment rolling stock to the party authorized by the said Washington City & Point Lookout Railroad Company to receipt for the same, the receipt of this party to be final arid conclusive evidence of the acceptance of the said rolling stock to the satisfaction of the lessee.” The agreement then provides for 36 additional payments, to be made monthly, from ando including March 15, 1891, to and including February 15, 1894. The note in suit is the $3,575 note referred to in the extract from the agreement quoted. It may appear in the proofs that the plaintiffs in this action, having other financial transactions with the American Car & Equipment Company, took an assignment of the contract between the railroad company and the equipment company on the 27th day of January, 1891, and thus became entitled to the benefits, and had imposed upon them the burdens, of .that contract. It further appears that, about October, 1891, the plaintiffs, as assignees, and standing in the place of the equipment company, brought an action in replevin against the railroad company, took possession of the property under the writ in that action, and sold the same, without giving notice to the railroad company. There was a provision in the contract between the two corporations that, upon default of any of the conditions of the contract, the property could be sold upon notice to the railroad company. No notice was given of the sale of the rolling stock.

It is ■ now claimed by the defendants, and it is the only, defense which requires consideration here, that the plaintiffs,by their act in taking possession of the rolling stock, and selling the same without notice, elected to rescind the contract referred to, and that this resulted in a failure of consideration, or partial failure of consideration, of the note in suit. It is not disputed that the note was originally given for a consideration, nor is it claimed that there was any imperfection in the note at the time it was given; but to use the language of the defendant’s counsel, it is contended that the plaintiffs “lose their right to collect the note by reason of their act in destroying the foundation of the note, the consideration for which it was given,—by rescinding the agreement of which the note was a part, and thereby destroying the note itself.” An examination of the agreement, and its true construction, shows that this position of the defendants is untenable. The note in suit was given in lieu of a cash payment, to be made upon the delivery of the rolling stock to the railroad company. It was for an amount of money to become due and payable when that delivery was made, and was a completed thing, giving rise to an enforceable obligation when the delivery of the rolling stock was made under the terms of the contract. The note was to be given concurrently with the railroad company taking possession of the rolling stock, and when it got possession of that rolling stock, the equipment company was entitled to the note in suit, and its right to enforce that note was in no wise dependent upon any of the subsequent provisions of the contract respecting the future relations to exist between the two companies. The transaction was, simply, that, instead of requiring $3,575 to be paid in cash, the equipment company agreed to receive a note at three months’ time to represent that cash payment, or in other words, a credit of three months was given on that branch of the transaction. So, when subsequent defaults were made, or the plaintiffs, as assignees of the contract, undertook to repossess themselves of the property by reason of such subsequent defaults, the alleged rescission of the contract had no retroactive effect to discharge the liability of the maker or the indorsers of the note in suit, for the giving of that note was a matter entirely independent of every other consideration connected with the contract, and stood upon the basis of an accomplished thing when the rolling stock was delivered and the note was given.

The plaintiffs, under the agreement, were entitled to resort to the rolling stock as security for the payments to be made subsequent to the giving of the initial note; and by resorting to their security, or enforcing remedies upon either of those subsequent notes, the separated- matter connected with the first note was in nowise changed or affected. The transaction of January 27th, in which the contract between the equipment company and the railroad company was assigned to the plaintiffs, was entirely distinct from and independent of that in Avhich the plaintiffs took the note in suit as collateral security ; and, that note having been given, for value, to the equipment company, which Avas entitled to it under the contract, its transfer to the plaintiffs conferred a valid title, and they received it for a good consideration, paid therefor.

The learned judge in the court below was right in directing a verdict for the plaintiffs, and the judgment should be affirmed, with costs.

All concur.


author: CULLEN, J.

text:
    The People ex rel. Edward McColgan v. George W. Palmer.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    1. Sales for taxes—Recovery of surplus.
    The owner of land sold for taxes can insist that the tax sale shall stand, and can recover any surplus (Laws 1888, c. 588), over the amount due for taxes and expenses, arising on such sale.
    2. Estate—What is—Redemption from tax sales.
    All inchoate right of dower is not such “ an estate ” as gives a wife the right, under Laws 1888, c. 583, § 5, to redeem land sold for taxes.
    Appeal from special term, Kings County.
    Application by Edward McColgan for a Avrit of mandamus to compel George W. Palmer, (comptroller of the city of Brooklyn, to pay relator two-thirds of the surplus money arising from the sale for taxes of certain premises in the city of Brooklyn, and to retain and invest the balance of said surplus and pay the income to relator, during the joint lives of himself and his wife, and on her death to pay said balance to relator, or, in case of the death of said McColgan, to dispose of said balance for the city of Brooklyn. From an order granting a peremptory writ, defendant appeals.
    Michael Furst, for appellant; A. L. Sessions, for respondent.
   CULLEN, J.

—The relator is the owner of certain property in the city of Brooklyn, which, on the 10th day of April, 1895, was sold by the registrar of arrears óf said city for arrears of taxes, to one John H. Becker, for the sum of $1,225. The sum realized by the sale resulted in a surplus, over and above the amount due to the city for taxes and expenses, of $1,182.11. The tax purchaser has given the relator no notice of such sale. On May 28, 1896, the relator applied for a writ of mandamus, directing the comptroller of the city to pay over to him the amount of such surplus. From an order granting such application this appeal is taken.

By section 6, tit. 8, of the charter of the city (chapter 583, Laws 1888), it is directed that any surplus arising on a tax sale “shall be held for the use of and paid over to the person legally entitled upon establishing his right thereto.” It is not disputed that the. plaintiff is the sole owner of the land sold, free from any incumbrance except the dower of his wife. As was intimated in Sutherland v. City of Brooklyn, 87 Hun, 187, 67 S. B. 642, the owner has a right to insist that the tax sale shall stand, and take the surplus arising on the sale, instead of redeeming his property. The statute expressly gives him the right to such surplus. No liability can now accrue from the city to the purchaser at the tax sale on account of any defect in the proceedings for sale, as, by section 4 of the title cited, the i city is only bound to refund the purchase money if the title conveyed by the sale is invalid, in case the purchaser has, within one year after the sale, caused notice of the sale to be served on the person entitled to redeem the lands. Over a year elapsed from the time of the sale to the time of this application.

The only question remaining is whether the wife of the relator has such ah interest in the lands as would enable her hereafter to redeem, and defeat the title of the tax buyer. The language of the statute (section 5) is :

“ Any person or persons having an estate in or any mortgagee of any of the lands and premises sold in pursuance of the third section of this title, whose estate or lien appears of record in the county of Kings, may at any time before the expiration of one year after the notice shall have been given to-him of such sale * * * * redeem such lands and premises,” etc.

It is" settled by authority that a wife, during the lifetime of her husband, has no estate in the land of the latter. In Moore v. Mayor, etc., 8 N. Y. 110, it was held that the wife had no’ estate as against the proceedings for condemnation. The same principle was also held in Witthaus v. Schack, 105 N. Y. 332, 782 Rep. 345. In Clifford v. Kampfe, 147 N. Y. 383, 7 S. R. 36, the right of a wife to maintain an action to set aside a deed by which, apparently, her inchoate right of dower was transferred, was upheld; but, while it was held that her inchoate right of dower was a valuable interest, entitled to protection, the rule was recognized that such interest did not amount to an estate or title. By the language of the section cited, the right to redeem is limited to persons having an estate in or mortgage upon the lands, whose estate or liens appear of record in the county of Kings. The „ interest of the wife does not fall within the language of the provision, for she has no estate; nor does it fall within its spirit, for there can be no record which would give the tax purchaser any notice or information whether the owner of the land was married, or, if married, who his wife might be. We are of opinion, however, as stated in Sutherland v. City of Brooklyn, supra, that the relator, as a condition of obtaining this surplus, should execute a release of all his interest in the land to the tax buyer, which release should be delivered to the comptroller for the purchaser’s benefit.

The order appealed from should be affirmed, with costs, upon the relator executing the release above prescribed.


text:
    New York Cent. & H. R. R. Co. v. Brockway Brick Co.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    1. Evidence—Letters patent—Certified copies.
    A grant by letters patent, being an act of government, should, in the absence of legislative action, be enrolled in the office of the secretary of state; and a certified copy of such record is admissible in evidence where the original patent is lost.
    2. Same—Copies of maps—Public documents.
    An objection to the admission in evidence of certified copies of letters patent, on the ground that they failed to contain copies of maps which the patents state were annexed to them, is untenable, where the patents show that such maps were also filed with the clerk of the county in which the land was situated, and with the commissioner of the land office.
    Appeal from special term, Dutchess County.
    Action by the New York Central & Hudson River Railroad Company against the Brockway Brick Company to recover possession of land. From a judgment in favor of plaintiff, defendant appeals.
    Ralph E. Prime, for appellant; Robert F. Wilkinson, for respondent.
   CULLEN, J.

—This is an action in ejectment to recover three parcels of land in Dutchess County, near Fishkill Landing, formerly under the waters of the Hudson River. By the judgment of the special term the plaintiff recovered all three parcels. The defendant appeals from that judgment only as to one of the parcels, that lying to the west of the railroad of the plaintiff. The plaintiff claims title under an alleged grant from the people of the State of Hew York, by letters patent bearing date the 26th day of December, 1873. Subsequent to this the defendant obtained two grants from the people, one bearing date November 11, 1886, and the other September 3, 1891, sufficient in extent to cover the lands in dispute, but by their express terms there was excepted from them the lands acquired by the plaintiff. The grants to the defendant being thus subject to the rights of the plaintiff, the only questions that arise in this case are as to the existence, validity, and effect of the grant to the plaintiff.

On the trial of the action, the original letters patent were not produced, plaintiff asserting that they had been lost. To establish the grant, plaintiff offered in evidence a certified record of the letters patent in the office of the secretary of state. The defendant objected to the admission of this copy, on the ground that there was no authority in law for the record of the patent in the office of the secretary of state, and that, as the record was without authority of law, a copy of the record was not competent evidence. This objection wms overruled, and the copy admitted, and the correctness of the ruling of the trial court in this respect presents the question most seriously urged by the defendant on this appeal. It is asserted by the counsel for the defendant that no statute can be found, either state or colonial, authorizing or directing the record of grants of land by the people or crown in the secretary of state’s office. The counsel for the respondent concedes this claim, though there are two statutes, to be noticed hereafter, which recognize the existence of such records. But, while there may be no statutory direction for the record, it does not follow that the record is not made “ pursuant to law,” within the terms of section 933, Code Civ. Proc. A grant from the sovereign, whether crown or state, differs radically from a grant by a private individual. Blackstone says (Bl. Comm, bk. 2, c. 21):

“ The king’s grants are also matter of public record. For, as St. G-ermyn says, the king’s excellency is so high in the law that no freehold may be given to the king, nor derived from him, but by matter of record. And to this end a variety of offices are erected, communicating in a regular subordination, one with another, through which all the king’s grants must pass, and be transcribed and enrolled, that the same may be narrowly inspected by his officers, who will inform him if anything contained therein is improper, or unlawful to be granted.”

In Bogardus v. Rector, etc., 4 Sandf. Ch. 633, the vice chancellor said :

The sovereigns of England never granted lands by deed. Their alienations were always of a higher character, being known in the law as alienations by matter of record. The grants were recorded in the proper office, and the great seal was affixed to the transcript, as evidence of the grant to the public. The letters of gift or transfer were thereby made patent, or open to the world. In practice, whatever rescript or authority for letters patent emanated from the sovereign personally, whether under his sign manual or by writ of privy seal, it formed the warrant for the officer holding the great seal to affix the same to the letters patent, and was retained as his authority for the act.”

The vice chancellor then goes on to show that the same practice obtained as to colonial grants in this province.

The same distinction applies to grants by the government since the Revolution. In IT. S. v. Schurz, 102 U. S. 378, it was held that a patent for public lands, signed, sealed, and recorded, took effect without delivery, contrary to the rule as to private conveyances. Justice Miller there said:

The authorities on this subject are numerous and uniform. They have their origin in the decisions of the English courts upon the grants of the crown, evidence by instruments called there, as here, ‘ patents.’ * * * These, he [Blackstone] says, are all made matter of public record, and are contained in charters or letters patent. He then recites the processes by which patents are prepared and perfected, the various officers through whose hands they pass, and the manner of affixing the seal to them, and their final enrollment. They are then perfect grants, and no mention is made of delivery as a prerequisite to their validity. * * * But, in regard to the transfer of title by matter of record, whether this record Avere a judgment or decree in a court of justice, as fines and recoveries, or the record made in the proper office (generally in the court of chancery by the lord chancellor) of tfie king’s grant, called c enrollment,’ no livery of seisin AAras necessary, nor any delivery of the document sealed Avith the king’s seal; for, Avhen this seal was affixed to the instrument, and the enrollment of it Avas made, no higher evidence could be had, nor Avas any other evidence necessary of this act or deed of the king.”

It will thus be seen that the very name of such grants, “ alienation by matter of record,” necessarily assumes that the grants are to be recorded in the proper public office, though it is true a failure to record the grant might not vitiate it. Mc-Garrahan v. Mining Go., 96 B. S. 316. When it is said that it must be recorded in the proper public office, such an office as that of the county clerk or registrar of deeds is not intended thereby. Registry in these latter offices is made to give notice of ownership to persons dealing with the property, and to preserve muniments of title. But the letters patent, being a public act of the government, are to be recorded in the same manner as. other acts of the government; that is, in the appropriate office of the government. Plainly, in the absence of any legislative action on the subject, the proper office is that of the secretary of state. From the earliest settlement of the state to the present time, all land grants have been recorded in the office of that officer or his colonial predecessor. In our experience at circuit it has been the invariable rule to prove either •colonial or state grants by certified copies from the secretary of state’s office, and none of us has ever heard the competency •of such proof questioned. The practice of recording such grants in that office is expressly recognized by two acts of the legislature. By section 5, c. 295, Laws 1839, it is provided that:

“ A copy of any deed, conveyance, or other instrument in writing relating to, or in any manner affecting the title to any real estate, which is or may be recorded or filed in the office of the secretary of state, upon being certified by the said secretary in the manner required by law, to entitle the same to be read in evidence, may be recorded in the office of the clerk of any county in this state, or in the office of the register of deeds in the city of New York with the secretary’s certificate.”

By chapter 110, Laws 1845, it is provided that:

“ All letters patent issued under the great seal of this state, granting land to any person or persons, in addition to the record thereof made in the office of the secretary of state, may be recorded in the county where the lands granted are situated * * *”

We therefore conclude that the record of the plaintiff’s grant in the office of the secretary of state was made pursuant to law, and that the certified copy of it was competent evidence.

A further objection was made to the admission of this copy, on the ground that the record was incomplete, in that it fails to contain a copy of the map which the letters patent state was annexed to them. We think this objection untenable. The patent granted to the plaintiff all the lots situated in the county of Dutchess, under the waters of the Hudson River, within the boundary line of the Hudson River Railroad, as shown upon the maps thereof filed in the office °of the clerk of said county on the 30th day of September, 1868, the 10th day of November, 1868, and the 1st day of December, 1868, and also 'with the commissioners of the land office, and upon the map thereto annexed. The railroad statute requires all railroad companies to file in the office of the clerks of the counties through which their road passes a map and profile of the lines of their roads, and of any amended or changed location thereof. The maps filed by the plaintiff became public records. Under the language of the patent, the lines and boundaries of the railroad, as established on such maps, defined and controlled the extent of the grant made to the plaintiff. If we could assume that ■ there might be some discrepancy between the map annexed to the original letters patent and the maps filed in the county clerk’s office, the latter would govern. The original maps from the county clerk’s office were produced on the trial. They showed the lands in dispute as lying within the bounds of the “ railroad, and hence within the limits of the plaintiff’s grant. It is, therefore, wholly immaterial whether the small map placed in evidence by the plaintiff as a copy of the map annexed to the original letters was sufficiently proved or not. It was shown, to be in accord with the maps in the county clerk’s office. If its admission was erroneous, it worked no harm, as the location and boundaries of the plaintiff’s grant were established by the other maps.

The judgment appealed from should be affirmed, with costs. All concur.


author: BRADLEY, J.

text:
    In the Matter of the Judicial Settlement of the Account of Frederick Noll.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Guardian and ward—Executors and administrators—Sureties.
    Where a decree settling the accounts of an administrator directs him to deposit certain sums to his credit as guardian of the heirs, he becomes liable in that capacity, and the sureties on his guardian bond •cannot set up, as a bar to their liability, that, before the decree was made, he had misappropriated the funds in his hands as administrator, and never received them as guardian.
    Appeal from surrogate’s court, Kings County.
    Judicial settlement of the account of Frederick Noll, as general guardian of Emelie Weimann, Charles J. Rasweiler, Frederick Rasweiler, and John Rasweiler. From the decree entered on the petition, John G. Landmann and Claus Torney, sureties on the official bond of Frederick Noll, Charles J. Rasweiler, Frederick Rasweiler, and John Rasweiler appeal.
    Thomas J. Farrell, for appellants; P. W. Ostrander, for respondent Weimann and the special guardian of the infants Rasweiler; James D. Bell, for respondent Noll.
   BRADLEY, J.

—This proceeding was instituted by the petition of Emelie Weimann to require Frederick Noll to file his account as general guardian, and to have it judicially settled. He filed his account, and presented to the surrogate his petition for a change of the proceeding from a compulsory to a voluntary accounting. Thereupon a citation was issued, requiring his wards, also Landmann and Torney, his sureties, to appear and attend the judicial settlement of the account of the general guardian. The sureties appeared, and filed verified answers, alleging objections to such account. They were overruled by the surrogate, and, as there were no other objections to the account, decree was entered in accordance with the statement of it as filed by the guardian. The insistence on the part of the appellants is that the court erred in dismissing the alleged objections to the account. The facts stated, and to which the answers of the appellants related, were that in October, 1893, Noll was appointed such guardian; that he was then administrator, etc., of Charles Rasweiler, deceased, who was the father of his wards; that the property to which they were entitled was then part of the estate which had come to-him as administrator; that his accounts as administrator were duly settled, and in March, 1895, a decree Avas entered in the-surrogate’s court, whereby the interests and shares of his wards and of the other next of kin of his intestate were separately stated; that in July, 1895, on the petition of Landmaun and Torney, an order Avas made by the surrogate revoking his letters of guardianship on his failure to give other sureties in his official bond; and that since such revocation he had received no money or other property belonging to his Avards or any of them. These facts are not questioned, but they allege in such answers, by way of objections, that the property referred to in the account filed Avas received by Noll as such administrator ; that the decree settling his account as administrator directed that he, as such, deposit the specified sums in separate accounts in the name of Noll, as general guardian; that he had not done so; that he did not at the time of making such decree, or thereafter, have such amounts in his hands ; nor did he ever, as general guardian, receive or become possessed of the amounts found by such decree to be due to the Avards; and that, if he eArer received or held those amounts, he received and held them as such administrator, and had misappropriated and converted the same to. his own use, prior to his appointment as such general guardian.

It evidently Avas not the purpose of the contestants to attack the decree of the surrogate’s court made on the judicial settlement of the account of Noll as administrator; but their contention is that, although he was chargeable, as administrator with the sums he was directed to deposit in his name as guardian, he did not then have in his hands any part thereof, and consequently did not comply Avith the direction of the decree. It is not asserted by the contestants that this condition was occasioned in the due course of administration of the estate of the intestate, but that, before his appointment as guardian, Noll had misappropriated and converted to his own use the funds, and therefore he, as guardian, received none from himself as administrator. This proposition is not tenable. He Avas chargeable as guardian Avith the amount to Avhich his Avards were entitled of the assets Avhich came to him as administrator. And for the performance of his trust as guardian, by the discharge of his liability as such, the security furnished by his official bond in - which' the contestants Avere sureties is effective. . To that extent, and for such purpose, the requisite amount must be deemed held by him as guardian. This sum Avas specified in the decree made on the judicial settlement, of his accounts as administrator. The contestants do not challenge this decree so far as relates to his then liability to account for the amount he Avas directed as administrator to deposit in his name as guardian. It is true that it does not appear by the terms of the decree of the surrogate that Noll was discharged as administrator; but the judicial settlement there declared was in legal effect final, the amount of the fund to which his wards were respectively entitled was adjudged, and he was directed to hold it in his relation as guardian. For that purpose it is not important in what capacity it was received by him. As to that, the statute provides that:

“ Where it was received by him, or came under his control, by virtue of letters previously issued to him, in the same or another capacity, an action to recover the money * * * may be maintained upon both official bonds ; but, as between the sureties upon the official bond given upon the prior letters and those upon the official bond given upon the subsequent letters, the latter are liable over to the former.” Code Civ. Proc. § 2596.

It does not seem necessary to determine whether or not the sureties upon the bond of the administrator would be liable for the default of Noll in complying with direction of the decree. His default in payment to his wards of the sum to which they are entitled when their right to receive it accrues is that of him as general guardian.

In the view taken, the cases cited by the appellants’ counsel in support of his contention that the sureties in his official bond as administrator are or may be liable have no essential application to the questions here for consideration. In Potter v. Ogden, 136 N. Y. 384,49 S. R. 829 ; relied upon by the learned counsel, the action was brought against the sureties in the administrator’s bond to recover the plaintiff’s distributive share in the estate of her ancestor. The plaintiff, at the time of the intestate’s death, and for many years thereafter, was an infant. A decree of the surrogate was .made, judicially settling the account of the administrator, by which the amount due the plaintiff was declared, and, by order then made, a person was appointed general guardian of the plaintiff. The questions presented were whether the decree and order were effectual against her. The court held that, for want of jurisdiction of her person, the decree and order were, as against her, void, and therefore the sureties in the administrator’s bond were liable.

It may be assumed that, if the administrator and the guardian had been different persons, the objections of the contestants would not have been summarily overruled. But where the obligation as administrator to pay, and the right and duty to receive as guardian, are united in the same person, as in the present case, he becomes charged in the latter capacity. This was the situation that arose when the surrogate’s decree was perfected; and it is no objection available to the sureties of his official bond as guardian for them to allege that, prior to that time or to the time of his appointment as guardian, he had misappropriated and converted to his own use the fund which came to him as administrator, and to which his wards were entitled. As he had received such fund, and had not disposed of it in the administration of the estate, he, in legal contemplation, had it in his custody at the time the decree was made; and his liability to account for it conclusively charges him with having the requisite fund, for the purpose of the effectiveness of the obligation assumed by the sureties in his official bond as guardian.

The decree of the surrogate’s court should be affirmed.

All concur.


author: BROWN, C. J.

text:
    Patrick Reaney v. Standard Oil Co. of New York.
    (Supreme Court, Appellate Division, Second Department,
    Nov. 20, 1896.)
    Negligence—Instructions—Burden of proof.
    It is reversible error for a court to refuse to charge “that the burden of proving that the defendant was negligent in either or any particular is upon the plaintiff.”
    Appeal from trial term, Kings County.
    Action by Patrick Reaney against the Standard Oil Company of Mew York for personal injuries. From a judgment of $3,500 damages and $129.27 costs, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.
    Charles H. Knox, for appellant; Rufus O. Catlin, for respondent.
   BROWN, C. J.

—This action was brought to recover for personal injuries alleged to have been caused by the negligence of the defendant. Prior to the judge’s charge the defendant’s counsel handed to the court a paper upon which there were written 22 requests to charge. At the close of the charge the following colloquy took'place between the court and counsel:

“ The Court: I think I have covered all the grounds in these requests of yours, Mr. Knox; and there are certain portions which I decline to charge, and do not read to the jury. Mr. Knox: I would like your honor to charge then specifically: The'Court: I have made a refusal to charge in several instances, and you can take your exception to the refusal. Mr. Knox: " Those that your honor does charge, will your honor state them to the jury % The Court: I have stated them in my general charge. I think that is covered, not in the language in which you gave them, because I do not imagine that all the points are involved in this case, and they are more confusing than otherwise. Mr. Knox: I would like to ask your "honor to charge' them as stated in requests to charge. The Court: I will decline to state them, except as I have already charged. It is thus more easily .understood by the jury, and for that reason I decline it. Mr. Knox: I, then, with your honor’s permission, except to your honor’s not. charging the specific request to charge which I make.”

Among the requests handed to the judge was the following “ Twelfth. That the burden of proving that the defendant was negligent in either or any particular is upon the plaintiff.” Under this request the court had written, “ Charged as in the general charge,” and the case shows that the defendant excepted to the. failure of the court to specifically charge as requested. There is not in the general charge of the learned judge any reference to the question of the burden of proof, and nowhere does it appear that the jury were instructed, that the burden of proving that the defendant was negligent was upon the plaintiff. We think the defendant was entitled to the instruction’ asked for, and that the refusal to charge as requested was error, for which the judgment must be reversed, and a new trial granted, with costs to abide the event.

All concur.


author: PEB CURIAM.

text:
    The People ex rel. Brooklyn El. R. Co. v. Board of Assessors. The People ex rel. Kings Co. El. R. Co. v. Same.
    (Supreme Court, Appellate Division, Second Department,
    Nov. 20, 1896.)
    Taxation—Certiorari—Amendment to petition.
    A petition for a writ of certiorari to review an assessment alleging that relator was erroneously assessed, and that other property on the same roll was assessed at a less proportionate value, gives the court jurisdiction over the cause, and it can grant leave to amend the petition" so as to specify the instances of the disproportionate valuation, as required by Laws 1896, e. 908, § 250.
    Appeal from special term, Kings County.
    Separate writs of certiorari by the Brooklyn Elevated Bail-road Company and the Kings County Elevated Bailroad Comnany to review an assessment of relator’s property for taxation. From an order granting leave to amend the petition, defendant appeals.
    Rollin A. Breckenridge, for appellant; Eugene Treadwell, for respondent.
   PEB CURIAM.

—The relator presented its petition, alleging that it was illegally and erroneously assessed, and prayed for the issue of a writ of certiorari to review such assessment. On its petition the writ was granted. The petition, besides allegations of other illegality and error in the assessments, stated that other and personal property in the city, upon the same roll, was assessed at less proportionate value than that assessed on the real estate of the petitioner. The petition failed to specify the instances in which such inequality existed, and the extent thereof, as required in section 350 of chapter 908 of the Laws of 1896. For this defect the appellants moved to strike out the petition in the allegations that other real and personal property was assessed at a less proportionate value than the real estate of the petitioner. On the hearing of this motion the court granted the petitioner leave to amend its petition by specifying the instances and extent of disproportionate valuation. From the order granting such leave this appeal is taken.

By section 251 of the act cited, on the presentation of the petition the justice or court may allow a writ of certiorari to the officers making the assessment to review such assessment. The certiorari thus allowed to issue is not defined, and must be the ordinary common-law writ prescribed by the Code, except as modified by the statute which permits the taking of testimony as the alleged grievances. By section 723, Code, Civ. Prac., the court may, at any stage of the action, in furtherance of justice, amend any process, pleading, or other proceeding. This power is confined to actions, and does not include special proceedings as a class. In re City of Buffalo, 78 N. Y. 372. But in section 1997 the provisions of the Code relating to amendments are inade applicable to special proceedings instituted by state writ, including the writ of certiorari. Enough was stated in the petition to give the court jurisdiction to issue the writ. Having jurisdiction, we think it was within its power to allow an amendment to the petition initiating the application as well in proceedings subsequent to the issue of the writ, where its power would have been unquestionable. People v. Board of Sup’rs of Dutchess Co., 135 N. Y. 522.

Order appealed from should be affirmed, with $10 costs and disbursements.


author: RUMSEY, J.

text:
    Clara E. Bidwell v. Maurice J. Sullivan et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Pleading—Frivolous answers—Denial on information and belief.
    An answer by a junior mortgagee in an action to foreclose the first mortgage is not frivolous because the denial of the allegations of the complaint is on information and belief.
    Appeal from special term, New York County.
    Action by Clara E. Bidwell against Maurice J. Sullivan, impleaded, to foreclose a mortgage. From an order directing judgment for plaintiff, on the ground that the answer was frivolous, defendant Sullivan appeals.
    W. W. Hoover, for appellant; W. W. Thompson, for respondent.
   RUMSEY, J.

—The action was brought to foreclose a mortgage, and the complaint contained the usual allegations. So far as the defendant Sullivan was concerned, the only allegation as to his interest was the general one that the defendants have or claim to have some interest or lien which accrued subsequent to the lien of the mortgage sought to be foreclosed. The plaintiff alleged tho due recording of the mortgage to foreclose which the action was brought. The answer which was declared to be frivolous contained, in the first place, a denial that the defendant had any knowledge or information sufficient to form a belief as to any of the allegations in the plaintiff’s complaint contained, save and except that the defendant claims a lien upon the premises described therein. The answer then went on to allege the facts showing that the defendant Maurice J. Sullivan held a mortgage upon the premises, which was set out in his answer, and from which it appears that the mortgage was executed and recorded subsequent to the date at which the plaintiff alleges that her mortgage was recorded. The answer was adjudged to be frivolous, apparently upon the ground that the defendant was bound to take notice of the fact of the recording of the prior mortgage, and therefore was not at liberty to set up a general denial, because he had no knowledge or information sufficient to form a belief. While the record of the mortgage is undoubtedly notice of its existence to any one who has occasion to examine the record, yet it clearly is not proof of the due execution and delivery of the mortgage, although it may raise a presumption of those facts; and those facts are not put in use by the denial of the defendant, in the form in which the statute permits him to to make it, as much as any other facts. Although a defendant may be able, by inquiry, to ascertain whether the allegations of me complaint are true, he is not bound to do so; and, unless such allegations are necessarily within his personal knowledge, an answer in the form of this one is not frivolous. When, therefore, the defendant here interposed this answer, in the form which the statute authorized him to put it, he had raised an issue which the law authorized him to make ; and in the absence of any proof that the answer was sham, it was clearly not proper tor the court to order a judgment upon it.

For these reasons, the action of the court in directing judgment was erroneous, and the order appealed from should be reversed, with $10 costs and disbursements, and the motion for .judgment denied, with costs.

All concur.


author: O’BRIEH, J.

text:
    Israel C. Blake v. George C. Clauses.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Statute of limitations—Liability of trustees for" debts of corporation.
    _ The statute of limitations begins to run in favor of trustees who are liable for corporate debts because of their failure to file an annual statement (Laws 1876, o. 510) from the time the debt first became due and enforceable by action, and is not suspended by subsequent extensions, granted without the consent of the trustees. 38 N. Y. Supp.. 514, affirmed.
    Appeal from trial term, New York County.
    Action by Israel C. Blake against George C. Clausen. The-complaint was dismissed on the merits, after a trial by the-court without a jury (38 N. Y. Supp. .514), and plaintiff appeals.
    Philip Carpenter, for appellant ; Samuel Untermyer, for respondent.
   O’BRIEH, J.

—The action was brought to charge the de- - fendant, as trustee of the Brewers’ Ice Company, with liability upon a claim of $6,000, the amount of a loan made by plaintiff" to the company on December 22, 1888, for failure of the com- • pany to file its annual report. All the allegations of the complaint are admitted by the answer. The sole defense is the statute of limitations. A six months’ note was given for the - loan, which became due June 25,1887. On that day a renewal note was given, which became due October 28,1887. This latter note was allowed to run along without renewal from the date of its maturity, October 28, 1887, until April 2, 1888, when a new note was given, due in April, 1889 ; and then the final note was given, due April 5, 1890. This latter - date is the one from which the appellant insists the three-years. statute of limitations began to run. All that need to be added to the opinion of the learned etrial judge is that if we should not hold the statute as beginning to run at the date of the maturity of the first note in June, 1887, and assume that, by the renewal of the note and the extension until October 28,. 1887, the running of the statute was suspended for that intervening period, then, clearly, the debt was due, and the plain- • tiff could have enforced the liability on October 28, 1887. As ■ stated, from that date until April 2, 1888, while there is evi- - dence tending to show that there was an oral extension, no note was given therefor, and the plaintiff was at liberty at any time during that period to commence an action, and en- • force thé debt against the corporation. An action, however,, upon that note, which matured October 28, 1887, is equally barred by the statute of limitations, for the statute- then com- - menced to run; and, if once set in motion, it could not be < stayed or suspended by the new note which was: given in. April, 1888. Apart, therefore, from the question whether the statute commenced to run when the first note matured, we think it clear that, if it did commence to run in October, 1887, and thereafter was not suspended, the action, not having been brought within three years thereafter, was barred. The judgment was right, and should be affirmed, with costs.

All concur.


author: VAN BRUNT, P. J.

text:
    Bernhard J. Ludwig, et al. v. Sarah Lazarus, et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    1. Injunction—Restraining dispossessory proceedings.
    Injunction will not lie against enforcement of judgment in dispossessory proceedings pending an appeal therefrom, since the statute regulating such proceedings prescribes a method for obtaining a stay pending appeal.
    2. Summary proceedings—Process—Service on partners.
    The precept in summary proceedings to dispossess a firm need not be served on each member of the firm, but a service on one of them is sufficient.
    Appeal from special term, Mew York County.
    Action by Bernhard J. Ludwig and others against Sarah Lazarus and others to restrain defendants from interfering with plaintiff’s possession of premises Mo. 36 West Fourteenth street in the city of Mew York. An injunction was granted, and defendants appeal.
    N. S. Spencer, for appellants; W. Strauss, for respondents.
   VAN BRUNT, P. J.

—This action seems to have been instituted for the purpose of procuring a stay pending the appeal from a judgment entered in dispossess proceedings against the plaintiffs. There is no ground for the maintenance of such an .action. The law.has provided for the procedure in cases of this description, and courts of equity cannot be appealed to to secure stays of proceedings which the statute prohibits. It is sought to maintain this suit, however, upon the ground that the district court which entertained the dispossess proceedings had no jurisdiction, because it did not appear from the record that the plaintiff Isidor Ludwig was served with the precept in the manner prescribed by the Code. It appears from the papers that Bernhard J. Ludwig, the plaintiff, was the lessee of the premises in question, anil that they were occupied by Ludwig Bros, as undertenants, said firm being composed of Bernhard and Isidor Ludwig. It further appears trom the papers as presented upon the part of the defendants, that Isidor Ludwig is a person of unsound mind, and absent from the city. There is no dispute hut that Bernhard ivas duly served with the precept, and we are not aware of any rule in proceedings of this nature, where the premises are in the possession of a firm, which requires that each member of the firm shall be served with the precept in order to authorize the district court to entertain the proceeding and to issue its warrant for the dispossession of the firm. Bernhard J. Ludwig, a member of the firm, being duly served, the magistrate had jurisdiction to entertain the proceeding and to issue the final warrant. The lessee and the undertenants were served. Hence the proceeding was regular.

We are therefore of the opinion that the injunction should not have been granted, and that the order appealed from should be reversed, with $10 costs and disbursements, and the motion for an injunction pendente lite denied, with $10 costs.

All concur.


author: INGRAHAM, J.

text:
    Peter Kuhnen v. Union Ry. Co. of New York City.
    (Supreme Court, Appellate Division, First Department.
    November 13, 1896.)
    Street railroads—Injury to person on track—Negligence.
    No negligence is shown on the part of the motorman on defendant’s car which struck plaintiff as he attempted to cross the track in the middle of the block, about dusk, on a foggy evening, where the car was brilliantly lighted, and plaintiff’s view of it was unobstructed, and there is no evidence as to how long he was on the track before he was struck, or that the motorman could have stopped the car after plaintiff went on the track.
    Appeal from trial term, New York County.
    Action by Peter ITuhnen against the Union Railway Company of New York City for personal injuries. A judgment was entered on a verdict in favor of plaintiff, and defendant appeals.
    William N. Cohen, for appellant ; William P. Burr, for respondent.
   INGRAHAM, J.

—The plaintiff was injured by being struck by a car of the defendant’s road on 3d avenue, just below 138th street, in the city of New York. At that point there is a double track ; the cars going from the Harlem bridge to the-north running on the east track, and the cars going from the north towards Harlem bridge running on the west track. The plfl.int.iff attempted to cross the street, not upon any street crossing, but in the middle of the block, from the west to the east siete. He stopped out in the street; says he looked both ways; saw the car coming from the south, which must have been upon the east track, the track furthest from him ; stopped to let that car pass, when the car coming down upon the west track, Re track nearest to the witness, struck him. The evidence is quite clear that the car in question was brilliantly lighted with electricity, and at the time of the accident it was just about dusk on the 19th of August, 1893, a little before 8 o’clock in the evening. It was a foggy night, and had been raining. This condition of the weather might have prevented the motorman from seeing plaintiff, but could not have prevented plaintiff from seeing the lighted car. Roth the witnesses who testified to seeing plaintiff distinctly saw the car. ‘One who saw the plaintiff leave the sidewalk, starting to cross the street, saw the car coming down town, and at that time said to his friend who was with him, “ That old man is going to get hit.” And the witness said that the occasion of that remark was because the car was coming so fast that “ if he [the plaintiff] kept on his course,—if he did not stop before he got to the track,—the car would just about strike him.” There was nothing to obstruct plaintiff’s view of the approaching car. It was brilliantly lighted, and could be easily seen; and in full view of this car the plaintiff started to cross the street, waited until a car upon the other track, furthest from him, passed, and then, without paying the slightest attention to the approaching car, placed himself in such a position that he was struck by it. There was no evidence to show that he ivas upon the track in front of the car that struck him for any appreciable time before he was struck, nothing to show that the motorman of the car that struck him could have stopped the car after he was upon the track, and nothing from which an inference of negligence on the part of the defendant could be drawn. The plaintiff does not state that he stopped upon the west track to let the north-bound car pass, nor how long it was after the north-bound car passed before the south-bound car struck him. The burden of proof is on the plaintiff to show that the defendant was negligent, and that he (the plaintiff) was free from contributory negligence. Neither of the witnesses saw the car when it struck the plaintiff. A witness testified that, while the car going north ivas ringing its bell, the car going south was not; but, as the car was not at the crossing at the time of the accident, there does not seem to be any particular reason why the bell should have been rung. It has not yet been held that it is the duty of a railroad company to constantly ring its car bells from one end of the route to the other. The speed of the car is also testified to, but there is no evidence as to how fast the car was going, or that its speed exceeded that allowed. We do not think that this case can be distinguished from the case of Fenton v. Railroad Co., 126 N. Y. 625, 36 S. R. 385. In that case the court say:

“ This accident did not happen at a street crossing, but between the upper and lower crossings of the street, and hence the drivers did not have the same reason to expect any one there as at a street crossing. * * * Street-railway cars have a preference in the streets, and while they must be managed with care, so as not to carelessly injure persons in the street, pedestrians must nevertheless use reasonable care to keep out of their way.”

Accepting the story as told by the plaintiff as true, it is quite apparent that this accident was not the result of any carelessness of the defendant, but was the result of plaintiff’s attempting to walk across this railroad track without looking for an approaching car upon the west track, and without using any care to keep out of the way of the car that struck him. If, after waiting to allow the north-bound car to pass, he had waited but a few seconds, the car would have passed, and he could have then crossed in safety. He chose, however, to attempt to cross the track without waiting to see whether or nor a car was approaching, and the accident was thus the result of his own carelessness, and not the carelessness of the defendant’s agent, "who could not have any reason to expect that a person would attempt to cross the street at that particular point, and who could not, from the evidence, be charged with having neglected to see the plaintiff in time to stop the car.

The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur. •


text:
    Abraham Katz et al. v. Joseph Kaiser.
    (Supreme Court, Appellate Division, First Department.
    November 13, 1896.)
    1. Vendor and purchaser—Defective title—Unsatisfied mortgage.
    A title is not defective because there is,, on record an unsatisfied mortgage which is apparently barred by the statute of limitations, and no fact is shown which would interrupt the running of the statute.
    2. Same—Encroachment on-street.
    - A purchaser cannot refuse to take title because the house on the lot encroaches half an inch on the street, where such house has stood for 30 years without any objection to the encroachment.
    3. Same—Encroachment on adjoining lot—Union of titles.
    An objection by a purchaser of a city lot that the house on the lot encroaches several inches on an adjoining lot is not sustainable where it appears that both lots had formerly been owned by the same person, and that the vendor’s title is under a mortgage executed by such former owner with covenants of warranty, the location of the house • being conclusive on subsequent owners as to the extent of the lot.
    4. Same—Inappreciable encroachment.
    An encroachment of one-fourth of an inch on an adjoining lot is so small as not to warrant denial of specific performance of a contract of purchase.
    Appeal from special term, New York County.
    Action originally brought by Abraham Katz and Louis Maier against Joseph Kaiser, for specific performance of a contract by which defendant agreed to purchase certain real - estate from plaintiffs. Abraham Katz died pending the action, and Mary Katz, as executrix of his-will, was substituted as plaintiff in his stead. There was'a judgment in favor of plaintiffs, and defendant appeals.
    T. M. Tyng, for appellant; Samson Lachman and Theodore Baumeister, for respondents.
   RUMSEY, J.

—In March, 1895, Abraham Katz and Louis Maier made an agreement with the defendant to sell him a certain piece of property situated on Ninth street. When the time came for the execution of the conveyance, the defendant declined to take the property, for certain reasons, which will be more particularly stated hereafter, and refused to carry out the contract. This action was then brought by the executor of Katz and by Maier, to compel a specific performance on the part of the defendant of his contract to take the property. The case was tried at the special term, and resulted in a judgment for the plaintiffs, directing the specific performance of the contract, and from that judgment this appeal has been taken.

Two objections were made by the defendant to the title. The first was that there was an unsatisfied mortgage upon the property. The facts in relation to that mortgage, as they appear by the proofs, are that there is unsatisfied of record a mortgage, dated on the 7th day of January, 1839, and recorded on the 22d of February in the same year, to secure something over §1,500. It does not appear by whom the mortgage was made, but for the purposes of this opinion it will be assumed, as it was assumed on the argument, that it was executed by some one who at that time had title to the property, as that was probably made to appear by the evidence upon the trial. The time when the mortgage became due does not appear, and therefore it must be assumed that it ivas payable on demand, and at its date. Martin v. Stoddard, 127 N. Y. 61, 63 ; 37 S. R. 330. The cause of action, therefore, accrued before the 1st day of July, 1848, and the statute of limitations in force at that time applies to the cause of action upon this mortgage. Code Civ. Proc. § 414. That statute reads as follows:

“ After the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument for the payment of money, such rights shall be presumed to have been extinguished by payment, but such presumption may be repelled by proof of the payment of some part or by a written acknowledgment of the right of action within twenty years.” 2 Rev. St. p. 301, § 48.

• No proof that any payment had been made upon the mortgage was given at the trial, nor was any written acknowledgment of the right of action produced. The case, therefore, stands upon the presumption of extinguishment which is created by the statute. That presumption is undisputed in this case, and in view of it the court is required to assume that the mortgage had been extinguished, and was no longer an incumbrance upon the property. Belmont v. O’Brien, 12 N. Y. 394. The case just cited is precisely in point. That was a proceeding to compel a purchaser to take title to the property which he had bid off at a judicial sale. One objection to the title, among others, was that there was an unsatisfied mortgage which was an incumbrance upon the property. The mortgage had been due for something over 60 years, and the judge at the trial, relying upon the presumption of extinguishment created by the statute, cited above, held that the mortgage was no longer an incumbrance upon the property. His holding was affirmed by the court of appeals, which held that, under such circumstances, the burden of proving that a payment had been made to take it out of the statute was upon the person setting up the mortgage as an incumbrance, and, if that were not done, the presumption applied, and the mortgage must be held not to be an incumbrance.

The principal objection to this title, however, is that the lot which had been sold encroaches upon the street, and also upon the adjoining lot upon the west. It is claimed that the lot encroaches one-half inch upon the street: That is disputed by the evidence, and substantially disproved; but, if it existed, it would be of no importance. It appears from the evidence that the building has stood where it now does for over 30 years without objection on the part of anybody, and in such a case as that the fact that it projects a small portion of an inch upon the street is no valid objection to the title. Webster v. Trust Co., 145 N. Y. 275 ; 64 S. R. 698.

The objection is also taken that the building upon the lot encroaches something more than 3-¡- inches over the western boundary. It appears upon the evidence that the property was conveyed to one Roberts in 1851, by a description which fixed the east line at a point 93 feet west of Avenue D, and described the property as extending thence west, on the north side of Ninth street, 25 feet, and completed the description by describing a lot 25 feet wide, front a"nd rear, and 92 feet 3 inches deep. Roberts continued to own the property until some time after 1880. In 1867, as it appears, lot No. 116, which adjoins the lot in dispute on the west, was also conveyed to Roberts, so that he was the owner of both lots. The house which stands upon the lot in question was built, as appears, over 30 years ago, and whether, at that time, it encroached upon the lot immediately west of it or not, there is no doubt that after Roberts became the owner of that lot there ceased to be any encroachment by Roberts upon anybody else’s property, but he was the owner of all the land upon which the house stood. Such being the condition of affairs, Roberts, in the year 1880, mortgaged the property in dispute to the Mutual Life Insurance Company, with covenants of warranty and further assurance, by a description which is precisely like the one in the contract sought to be enforced. In that description the southeast corner of the lot is fixed at a point 93 feet 2 inches west from the corner of Avenue D and. Ninth street, and the lot is described as being 92 feet 3 inches deep and 21 feet 8-|- inches wide. This description is followed in the subsequent conveyance, which grew out of- the foreclosure of this mortgage under which the plaintiffs claim, and is used in the contract in suit. It appears from the testimony that, as a matter of fact, the house in front is 93 feet 2 or 3 inches from Avenue D, and in the rear is precisely 93 feet from that avenue. Whichever it is, there is no doubt that it stands either within the east line of the lot as owned by Roberts or precisely on that line. In front the width of the house is 21 feet 6 inches or 21 feet 8| inches ; but, whichever may be the accurate measurement, it is still inside or upon the west boundary of the lot as conveyed to Roberts. In the rear the house is 25 feet wide, or 25 feet \ inch. If it is 25 feet wide, it stands in the rear precisely on the west line of the lot 115 as conveyed to Roberts ; and if it is 25 feet ¿ inch, of course it encroaches just £ inch. The condition of affairs when the property was mortgaged by Roberts was that he owned all the land included in lots 115 and 116. He mortgaged this lot, upon which stood the house, the east line of which was entirely upon his land, and the west wall of which was also entirely upon his land, but extended a few inches over the boundary as measured in the description. So we have the fact that Roberts had practically located the proper place for the wall of this house by his own act, and upon his own land, when he had a right to so do, and had conveyed the house by a description which misstated a few inches the precise measurement of the house. This is a clear case for the rule that natural or artificial boundaries, plainly referred to, must control measurements and distances with which they do not agree. Meyer v. Boyd, 51 Hun, 291, 4 N. Y. Supp. 328 ; Race v. Stewart, 5 App. v. 598. In any event Roberts did not convey more than a quarter of an inch of the land embraced in the boundaries of lot 116, even if he conveyed that much, and so small an encroachment as that is not .of sufficient importance to warrant a denial of the relief which the plaintiff asks for.

When Roberts gave this mortgage under which the plaintiff olaims, he executed with it covenants of warranty and for further assurance ; and at that time, as is said, he owned both lots, and was therefore at liberty to convey so much of either lot as he saw fit, and locate the line of lot number 115 wherever he desired to, and his action binds the grantees of that lot from him, as also does the covenant of warranty, which is binding upon his subsequent grantees as well as upon himself. Tefft v. Munson, 67 N. Y. 97. So the location of this house, which he made when he owned both lots, is conclusive upon .any person who subsequently became the owner of either; and a title taken by the description that he then gave, which included the property as it actually existed and was occupied by him, conveys a good title to the house as it then stood.

The judgment of the special term.- was therefore right, and should be affirmed, with costs.

All concur.


author: O’BRIEN, J.

text:
    Bendet Isaacs v. Jacob Cohn et al.

    (Supreme Court, Appellate Division, First,Department.
    November 13, 1896.)
    Secondary evidence—Foundation—Discretion oe trial court.
    Refusal to admit evidence of contents of letter alleged to have been lost will not be disturbed on appeal, where the witness who testified on his examination in chief that the letter was lost gave such evasive answers on his cross-examination as to leave it in doubt as to whether he was testifying truthfully.
    Appeal from trial term, New York County.
    Action by Bendet Isaacs against Jacob Cohn and others on a promissory note for $3,500 made by defendant Cohn to the order of the defendants E. H. Hein & Co., and indorsed by the payees to plaintiff. From the judgment of the amount of the note, with interest and costs, entered on a verdict in 'favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.
    J. Murray Downs, for appellants; David Bandler, for respondent.
   O’BRIEN, J.

—The action was brought on a promissory note for $3,500 made by the defendant Jacob Cohn to the order of E. H. Hein & Co., and delivered to the plaintiff in payment of an antecedent debt. The defense of the defendant Jacob Cohn was that he was an accommodation maker of the note in question, and that its use by Hein & Co. was restricted to its-discount by the New Amsterdam Bank of New York; that the note was wrongfully diverted by Hein from the use and purpose for which it was executed; and that the plaintiff is not a bona fide holder for value, having received it upon an antecedent debt of the firm of E. H. Hein & Co. to him. There was another defense,—that the note was received -by the plaintiff under an agreement to have it discounted, and pay one-half of the proceeds to Hein & Co.; but this was practically abandoned upon the trial, it need not be considered. The learned trial judge fully and fairly presented the question to the jury as to whether there was or was not a diversion of the note, and correctly stated the law to be that, the plaintiff having received the note in payment of an antecedent debt, he could recover upon it, unless the use of it had been restricted by the accommodation maker; that the latter might restrict the use of the note; and that, if he did so restrict it, no person could recover against him, except the one for whom it was intended, or bona fide purchaser for value. In his charge the judge said:

“Now, the question in this case, as this note was taken to be applied on an antecedent debt, is whether it was restricted originally, and that is a question of fact for you to determine upon the evidence. You have first the oral testimony of Mr. Cohn and Mr. Hein that Mr. Hein applied to Mr. Colin for his note, stating that he was going to open an account at the New Amsterdam Bank, and to get a large discount there, and wanted this note for the purpose. You have a letter written by Mr. Hein to Mr. Conn, stating _ that, if Mr. Cohn would make this note for $3,500, Mr. Hein would get it discounted at the New Amsterdam Bank. Hpon that testimony the defendants claim that there was a positive restriction placed by Mr. Cohn upon the use of this note by Mr. Hein, and it is a fair inference from the conversation and from the letter that Mr. Cohn designed this note for a cash discount at the bank of New Amsterdam, and for no other purpose. The plaintiff claims that this evidence is not conclusive ; that it only evidences a representation by Mr. Hein that he would make that use of it. But -there is nothing in it to show that Mr. Cohn intended it should be restricted to that use, or intended that Mr. Hein might not make such use of it as he found most beneficial to himself. According to the testimony of the plaintiff and the testimony of Mr. Ilirschman, about the 14th of .June there was an interview at which the plaintiff, Mr. Ilirschman, Mr. Cohn, the maker of the note, and Mr. Jlein were present; that at that interview it was arranged, for the purpose of getting some financial assistance for Mr. Hein, that Mr. Cohn was applied to, and he stated at that túne he had done all he could for Mr. Ilein, because he had made certain notes, and, among others, that he Avas liable on a note for $3,500 to Mr. Isaacs. That, however, is denied by Mr. Hein and by Mr. Cohn, and you have a conflict of testimony betAveen these Avitnesses as to Avhether any such statement Avas made. If it Avas made, then it Avould seem to be an admission by Mr. Cohn that that note had been properly used by Mr. Hein in transferring it to the plaintiff, because it Avould be probable, if there had been a diversion at that time, that he would have disputed the note, whereas, according to that conArersation, he admitted his liability upon it, Avhich would not be consistent with his knoAvledge that it had been diverted from any purpose to Avhich he had restricted its use. If the admission was not made, then, of course, the question rests upon the original transaction between Mr. Hein and Mr. Cohn.”

The burden to show that there Avas a restriction Avas upon the defendant, and neither at the end of the case, nor at any other time during the trial, Avas any motion made for a direction of a verdict, or the dismissal of the complaint; but both regarded the testimony as of a character requiring the submission of the question of diversion, as one of fact, to the jury. Nor Avas any exception taken to the charge of the court, or any part thereof, or to any refusal of the court to charge. And as we think the submission of that question to the jury, under the •circumstances, was proper, and was presented in a manner as favorable to the appellant as he was entitled to, so much of the motion as asked that the verdict be set aside because, contrary to the evidence, or to the weight of evidence, and the law, was properly denied.

We have left then for consideration only the exceptions taken on the trial to the admission or rejection of evidence. The only ruling in that regard brought in question is that relating to the exclusion of secondary evidence as to the contents of a letter, after the appellant had produced some evidence tending to show that the letter was lost. The appellant insists that sufficient foundation was laid as to the loss of the letter to justify the admission of secondary evidence. Upon this question, as to the proof requisite to be furnished, it is said in McCulloch v. Hoffman, 73 N. Y. 615 :

The question as to the sufficiency of proof of loss, and of unavailing search," to authorize the admission of parol evidence of the contents of a written instrument, is very much in the discretion of the trial court; and the case must be quite without proof to authorize an appellate court to find error.”

And in Kearney v. Mayor, etc., 92 N. Y. 617, it is said :

“The point which the appellant must establish is that the proof was so conclusive that it was error of law not to hold it sufficient, and, if there was nothing else in the case, the fact that the only witness called to testify to the loss was the plaintiff himself was enough to preclude this court from reviewing the decision of the trial judge and general term; for the court below was not bound, as matter of law, to credit the statements of a witness thus interested, given in his own behalf, though uncontradicted by any other witness.”

Here the witness Cohn, who was an interested party, and Avho displayed a desire to aid his uncle, who was the other defendant Cohn, started out in his testimony with the statement that he had made diligent search for the letter, and could not find it, and that, in his opinion, it was lost. On cross-examination, hoAvever, when asked as to testimony which he had giA^en in another action as to where his books and papers were, it having been made to appear that they had been removed from the place where he did business, on Broadway, at the time the letter was received, he kept shifting back and forth as to the whereabouts of his books and papers, and, by the evasive an-SAvers which he gave to direct questions, left it in doubt as to whether he Avas fairly and honestly testifying. This was so apparent to the trial judge that he personally subjected the Avitness to a searching examination, and this, together with the cross-examination by plaintiff’s counsel, undoubtedly impressed the court with the insincerity of the witness. It was Avith the full adArantage of his víbav, based on the character ■and actions of the Avitness on the stand, as well as upon the testimony, and his judgment as to the credibility of the witness, that he decided to exclude the evidence of the contents of the letter. Under these circumstances, we cannot say that it was error for the trial judge to exclude secondary evidence.

We think the judgment should be affirmed, with costs.

All concur.