text:
    Anna Stedman, App’lt, v. City of Rome, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Municipal corporations — Streets—Notice.
    A provision in the charter of defendant that it shall not be liable for injuries caused by the defective condition of its sidewalks unless actual notice of such condition has, prior to the injury, been given to the mayor or common council, does not apply where the defect was created by the city officers.
    2. Same — Notice op claim.
    The notice of a claim, against the defendant for personal injuries, served in this case, was held to be sufficient and a substantial compliance with the provisions of defendant’s charter.
    Appeal from a judgment, dismissing the complaint with costs, and from an order denying a motion for a new trial made on the minutes.

      Goorge T. Davis and M. H. Powers, for app’lt; A. D. Kneeland, for resp’t.
   Martin, J.

— This action was to recover damages alleged to have been sustained by the plaintiff by reason of the negligence of thb defendant. On the trial the plaintiff was nonsuited. The grounds o£ the motion were : (1) That the evidence did not establish the fact that the injury complained of was caused solely by the negligence of the defendant; (2) that the plaintiff did not snow that she was free from contributory negligence; and (3) that the notice of the injury presented to the common council of the. defendant was insufficient. The court held the notice sufficient, but granted the defendant’s motion, and refused to submit to the jury the questions of the defendant’s negligence and the plaintiff’s freedom from contributory negligence. Prior to the-time of the accident, the defendant, by its superintendent of streets, had erected upon and across the sidewalk of Henry street, a public street of the city, a bridge, which was seven inches' above the level of the sidewalk, and sloped on each side from the bridge to the sidewalk. The plaintiff,, while passing over the sidewalk and bridge at that place, fell and broke her arm or wrist.

A careful examination of the evidence contained in the appeal book, renders it clear, we.think, that the question of the defendant's negligence was one'of fact for the jury. Clemence v. City of Auburn, 66 N. Y. 334; Urquhart v. City of Ogdensburgh, 97 id. 238 ; Bullock v. Mayor, etc., 99 id. 654. Goodfellow v. Mayor, etc., 100 id. 15; Cohen v. Mayor, etc., 113 id. 532 ; 23 St. Rep. 509 Pettengill v. City of Yonkers, 116 N. Y. 558; 27 St. Rep. 531; Bishop v. Village of Goshen, 120 N. Y. 337; 31 St. Rep. 490; Gillrie v. City of Lockport, 122 N. Y. 403; 33 St. Rep. 636; Keane v. Village of Waterford, 130 N. Y. 188 ; 41 St. Rep. 291;. Colburn v. Trustees, 15 St. Rep. 668; affirmed, 114 N. Y. 617; Higgins v. Village of Glens Falls, 33 St. Rep. 111; affirmed. 124 N. Y. 666; Sherman v. Village of Oneonta. 49 St. Rep. 267; 21 N. Y. Supp. 137; affirmed (N. Y. App.), 60 St. Rep. 867; 37 N. E. 566 ; Goff v. Village of Little Falls, 47 St. Rep. 729.

The provision of the defendant’s charter which provides that it shall not be liable for any injury caused from its sidewalks being-out of repair, or unlawfully obstructed or dangerous from snow or ice, unless actual notice of the unsafe condition thereof has, prior to such injury, been given to the mayor or common council, is not, we think, applicable to this case, as the obstruction complained of was created by the defendant’s officers, and, therefore, it had full notice of its existence. Riddle v. Village of Westfield, 65 Hun, 432 ; 48 St. Rep. 48; Brusso v. City of Buffalo, 90 N. Y. 679; Wilson v. City of Troy, 135 N. Y. 96; 48 St. Rep. 364.

We are also of the opinion that, under the evidence, the question whether the plaintiff was free from contributory negligence was one of fact, and should have been submitted to the jury. Contributory negligence is a question of fact, and should be left to the jury, unless it so clearly appears from the circumstances or uncontradicted evidence as to leave no inference of fact in doubt. It is only in very exceptional cases that it can be adjudged as a necessary legal conclusion from the facts found. Thurber v. Railroad Co., 60 N. Y. 326; Massoth v. Canal Co., 64 id. 529; Greany v. Railroad Co., 101 id. 419, 423; Kellogg v. Railroad Co., 79 id. 72.

The defendant’s charter also contains the following provision: “ All claims against the city for damages for injuries to the person, claimed to have been caused or,sustained by defects, want of repair, or obstructions from snow or ice, or other causes in the highways, streets, sidewalks or -crosswalks of the city, or because of negligence of the city as to the highways, streets, sidewalks or crosswalks of the city, shall be presented to the common council in writing three months after said injury is received. Such writing shall describe the time, place, cause and extent of the injury, so far as then practicable, verified by the oath of the claimant. The omission to present said claim, as aforesaid, within three months, shall be a bar to any claim or action therefore against the city.” Within the time required by this provision, the plaintiff presented to the common council a duly vertified claim, which described the time, place, cause and extent of her injury, as follows: “That heretofore, and on or about the 24th day of November, 1893, while your petitioner was lawfully traveling upon the street and sidewalk in the said city known as Henry street, and going westerly towards West street, and just before reaching a point on said street where the same connects with West street, and near an artificial structure known as a bridge, your petitioner, by reason of the imperfect character, slope, construction, and condition of said street and bridge and without any negligence on her part and solely by the negligence of said city, its officers, employes, agents, and servants, — your petitioner then and there received a fall by reason of the condition of the street and bridge, as aforesaid, and by the fall so received your petitioner broke her left arm, and was in consequence thereof made to suffer great pain, and was disabled,- and prevented from her usual avocations for some time, and will be so prevented for an indefinite period in the future. Tour petitioner prays that your honorable body will award her the damages which she has suffered which are at least in the sum of $1,500 and which the petitioner hereby presents as a claim against the city of Rome aforesaid.” The respondent still insists that this notice was insufficient, although the court held otherwise, and now seeks to sustain the non-suit upon that ground. We are of the opinion that this notice was sufficient, was a substantial compliance with provisions of the defendant’s charter, and hence that the respondent’s insistence cannot be sustained. Sullivan v. City of Syracuse, 77 Hun, 440 ; 60 St. Rep. 674; Werner v. City of Rochester. 77 Hun, 33; 59 St. Rep. 439; Masters v. City of Troy, 50 Hun, 485; 20 St. Rep. 273; Cross v. City of Elmira (decided by this court, but not yet officially reported) 68 St. Rep. -. It follows that the judgment should

be reversed.

Judgment and order reversed on the exceptions, and a new trial granted, with costs to abide the event.

All concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Andrew D. Ely, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Master and servant — Rules.
    A master is not liable for an omission to make rules for the protection of a servant, where it does not appear that others, engaged in business of a similar character, have adopted any rules relating to the same work, or that any rules were practicable or necessary, or that the necessity and propriety of making and promulgating any rules were so obvious as to render the question one of common experience and knowledge.
    Appeal from a judgment, dismissing the complaint.
    The plaintiff was an employe of the defendant, and had been in its employ four or five days previous to the accident. At the time of the accident the plaintiff was engaged with twenty-three other men in picking up and loading onto a flat or platform car old rails that had been replaced by new ones. These men were divided into two gangs of twelve each, one on each side of the car. The rails were taken by each gang, and thrown onto the car. The car had loops at the sides for six stakes, but none were used during the time of the loading, although there were stakes for the use of the platform cars in the tool car, which was attached to the train. The cars were three and one-half or four feet above the top of the track. The rails being loaded would weigh some 600 or 700 pounds, and were piled between the tracks. The gang with which the plaintiff was working on the north side of the car picked up a rail and threw it onto the car about the same time that the gang on the south side threw one on. The latter struck the top of the car, swung around and slid off the north side, striking the plaintiff. They had worked through the day in this manner, and no one had warned them when the rails were thrown, from the opposite side. It was the first day the plaintiff had worked at loading rails. He commenced work about seven o’clock in the morning and the accident occurred about four o’clock in the afternoon. At the time the rail slid off the rails were pilgd to the height of a foot or a foot and one-half in the center, and sloped down to the edge.

      Tuttle & Hansom,, for app’lt; C. D. Prescott, for resp’t,
   Martin, J.

— The only question raised by the appellant is as to> the propriety of the nonsuit granted by the trial court. He has cited a great number of authorities relating to the duties and liabilities of a master to his servant, the risks assumed by the servant, and upon the questions of negligence and contributory negligence. There is no uncertainty as to the rules of law established by the cases cited, but the question is as to their applicability to the facts in this case. We have carefully read the evidence and proceedings upon the trial, and fail to find sufficient proof of the defendant’s negligence to entitle the plaintiff to recover under the doctrine of the cases bearing upon that question. That a master owes to his servant the duty of furnishing reasonably safe applianees and machinery, a reasonably suitable and safe place in which to perform his work, and to exercise reasonable care in the selection of his coemployes, is a well-settled principle of the law of negligence. We fail to find in the evidence in this case any omission upon the part of the defendant to discharge any of the duties requiredby this rule. There is no evidence to show that the appliances, machinery, and the place where the plaintiff was performing his work were not reasonably safe. Neither do we find any evidence that any of the plaintiff’s coemployes were incompetent, nor that the defendant was negligent in their selection. The law also imposes upon a railroad company the duty of making and promulgating rules whicn, if faithfully observed, will give reasonable protection to its employes. This rule, however, is a reasonable one, and does not impose upon a railroad company the duty of making a specific rule for every particular act that is to be performed by its employes. The failure to adopt rules is not evidence of negligence, unless it appears that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity therefor. It was not suggested at the trial nor here what particular rule the defendant should have adopted.' In this case there was no evidence that any rule relating to the work in which the plaintiff was engaged had been adopted by other companies engaged in business of a similar character, or by experts or other witnesses to show that any rule was necessary or practicable in such a case. Nor was the evidence such as to make the necessity and propriety of making and promulgating any rule so obvious as to render the question one of common experience and knowledge. Under similar circumstances, it was held by this court in Doing v. N. Y., O. & W. Railroad Co., 73 Hun, 270; 58 St. Rep. 64, that the evidence was not sufficient to justify the court in submitting to the jury the question of the defendant’s negligence upon that ground. The same doctrine is held in Berrigan v. N. Y, L. E. & W. Railroad Co., 131 N. Y. 582; 42 St. Rep. 858, and Morgan v. Hudson River Ore & Iron Co., 133 N. Y. 666; 45 St. Rep. 112.

Judgment and order affirmed, with costs.

All concur.


text:
    P. J. Sorg Company, App’lt, v. Charles E. Crouse et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Sale — Executoby—Inspection.
    Where a c'ontract is executory, and the article or merchandise is after-wards to be procured or manufactured, the contract carries with it an obligation that the article shall be merchantable ; and, if it is not, the vendee may rescind the contract and return the article after he has had a reasonable time to inspect it.
    2. Same.
    When, from the terms of the contract or the nature of the property, the examination can be made only when it is used, and such was, therefore, the mode of examination contemplated, the vendee is not foreclosed until the test is made.

      3. Same.
    A vendee who purchases, though on time, under an agreement giving him the right to return vany portion when lound bad, may recover pay^ ments made, on thereafter discovering that the article is bad and re turning it.
    4. Same — Returning part.
    The vendee, under a contract giving Mm the right to return any part of the goods when found bad, need rescind the contract only as to such portion.
    Appeal from a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, made on the minutes of the court.

      Charles S. Kent, for app’lt; Thomas Hogan, for resp’ts.
   Martin, J.

— This action was to recover the price of a shipment of tobacco made November 30, 1892, amounting to $178.32, and for an alleged balance of $7.97, due upon a shipment made August 17, 1892. The principal controversy between the párties arose over the defendants’ counterclaim of $108 for twenty-four caddies of tobacco received and paid for by them and returned to the plaintiff, for the reason that the tobacco was moldy and unmerchantable. This amount, with $3.47 discount upon one of the bills of tobacco by reason of its haying been paid for within ten days, was allowed the defendants, and deducted from the amount of the plaintiff’s bill, leaving a balance due it which, with interest, amounted to the sum of $77.40, for which the jury rendered a verdict.

The evidence of the defendant Ackerman was to the effect that when the first arrangement was made between the plaintiff and the defendants, in pursuance of which the dealings between them commenced, and under which all the tobacco received by the defendants was delivered, the representative of the plaintiff with whom such arrangement was made agreed with the defendants that the plaintiff would stand back of all the tobacco it sold the defendants, and, if it was not satisfactory in every way, shape, and manner, they could return it whenever they chose. The defendant Orouse’s testimony as to this transaction was, in substance, that the plaintiff’s, representative said to them that at any time any tobacco was bad, no matter how long they had had it, they might return it. Under this arrangement with the plaintiff the defendants purchased and paid for a large quantity of tobacco. The tobacco so purchased and paid for included the twenty-four caddies in question, which were purchased a year or a year and a half before they were returned to the plaintiff. After the defendants had discovered that one caddy of this tobacco was musty, and consequently valueless, they offered to return it to the plaintiff, who refused to accept it, although ah agent of the plaintiff directed them to set it one side, and charge it to the plaintiff. When afterwards it was discovered that the remaining twenty-three caddies were also defective, the defendants had a conversation with the manager of the plaintiff in regard to them, who directed the defendants to do nothing with them until he returned to the factory, and stated that everything would be arranged to the defendants' entire satisfactian. The plaintiff afterwards refused to allow the defendants for this tobacco or any portion of it. They thereupon shipped it to the plaintiff at its place of business, but it refused to accept such tobacco, and it still remains in the warehouse of the carrier who transported it. The proof tended to show that, without practically destroying the value of this tobacco, no inspection of it could be made, nor its condition ascertained, until it was placed in the hands of a retail dealer, and was opened for use. That the tobacco in question was moldy and worthless was proved, and practically undisputed. The defendants’ proof was also to the effect that this kind of tobacco, when kept in a place like that in which the defendants kept this, would suffer no injury for five to ten years, and that it was the custom of the trade not to inspect such tobacco until it was opened for use. Upon the evidence the court submitted to the jury the question whether the tobacco was unmerchantable when sold, whether the defendants could have properly inspected it when received by them, or before the time when its unmerchantable condition was discovered, and charged the jury that, if it was examined in a proper way, within a reasonable time to ascertain its condition, and it was unmerchantable when received by the defendants, they had a right to return the tobacco, and receive credit for its value. Upon all these questions the jury found for the defendants. The court held and submitted the case to the jury upon the theory that, as this tobacco was manufactured by the plaintiff, and purchased by the defendants in the regular course of trade, there was an implied warranty that it was merchantable. The rule seems to be well settled that, where a contract is executory, and the article or merchandise is afterwards to be procured or manufactured, the contract carries with it an obligation that the article shall be merchantable ; and, if it is not, thevendee may rescind the contract, and return it, after he has had a reasonable time to inspect it. Gallagher v. Waring, 9 Wend. 20; Hargous v. Stone, 5 N. Y. 86; Reaper Co. v. Thayer, 50 Hun, 516, 551; 2 Benj. Sales, p. 865, § 899 ; Hoe v. Sanborn, 21 N. Y. 555, 562; Howard v. Hoey, 23 Wend. 350 ; Cleu v. McPherson, 14 N. Y. Supr. Ct. 480 ; Peck v. Armstrong, 38 Barb. 215; Newbery v. Wall, 35 N. Y. Supr. Ct. 106. The appellant, however, contends that the defendants did not inspect this tobacco within a reasonable time, and therefore it was accepted by them, and they could not sustain the counterclaim in this action. It is clearly the duty of a purchaser to act promptly in examining goods sent upon his order, and thus determine whether they comply with it. He must also give prompt notice to the vendor of their rejection, if detective, or he cannot avail himself of his right to return them. The vendee has, however, a reasonable time in which to make such an examination, and what is a reasonable time is generally a question of fact to be determined by a jury upon all the circumstances, including the situation, liability of injury to the vendor by delay, and the convenience, and necessities of the vendee. Pierson v. Crooks, 115 N. Y. 539; 26 St. Rep. 492. But when, from the terms of the contract, or the nature of the property, the examination can be made only when it is used, and such was, therefore, the mode of examination contemplated, the vendee is not foreclosed until the-test is made. Gurney v. Railroad Co., 58 N. Y. 358, 364. Applying these rules to the facts in this case, we are of the opinion that the question whether the defendants examined this tobacco within a reasonable time was a question of fact for the jury, and that its-finding upon that question must be regarded as conclusive, especially in view of the fact that it was agreed between the parties-that the defendants might return any portion of the property that was not satisfactory whenever they chose, or any time, no matter how long, after they received it, if it was bad. This agreement shows quite clearly that the plaintiff understood and recognized the fact-that this kind of tobacco could not be inspected until it was sold to the retailer for use, and that that rule was to be applied in this case.

The plaintiff’s claim that the defendants could not recover for the tobacco thus returned after they had paid for it cannot, we think, be sustained. The payments were to be made in ten or sixty days. If made in the former time, it was doubtless before the property reached the defendants, or they had any opportunity whatever to inspect it. It was thus paid to save the two per cent, discount.’ Having the right, under their agreement, to return any portion of the tobacco purchased by them when found to be bad, it is quite manifest, we think, that upon such return they had the right to recover the money they had paid for the property returned, or have credit for it upon their account with the plaintiff. As was said in Pierson v. Crooks, 115 N. Y. 554; 26 St Rep. 492, the consideration upon which they paid the money failed, and they were entitled to recover it back. Nor we do think the plaintiff’s claim that the defendants could not rescind their contract for the purchase of the tobacco in question without also rescinding it as to the other tobacco which was purchased at the same time, and returning that as well, can be sustained. McKnight v. Devlin, 52 N. Y. 399. By the express terms ofjbe contract between the parties it was agreed that they might return any of the tobacco that was bad, no matter how long they had had it. Moreover, it. may be said that, if the evidence was not sufficient to'justify the jury in finding that the tobacco in question was in the same condition when delivered by the plaintiff as when returned by the defendants, yet, under the contract by which the plaintiff agreed that the defendants might at any time return any tobacco that was bad, no matter how long they had had it, the defendants had the right to return the tobacco in question, and to receive credit for their amount.

Having carefully examined all the evidence given upon the trial, the judge’s charge, and the exceptions and rulings by the trial court, we are of the opinion that there are no exceptions which would justify a reversal of the judgment, that the verdict is sustained by the evidence, and that the judgmentshould be affirmed.

Judgment and order affirmed, with costs.

All concur.


author: Hardin, P. J.

text:
    Theodore L. Wilcox, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Negligence — Contributory—Question op fact.
    In order to warrant the granting of a nonsuit, in an action for personal negligence of the person injured, such negligence must be established conclusively by evidence which leaves nothing either of inference or of fact in doubt, or to be settled by the jury.
    2. Same — Question for jury.
    The conflicting evidence was held to justify the trial court in holding that a question of fact was presented for the consideration of the jury in respect to whether the bell was rung or whistle sounded and reasonable precaution taken by the defendant, and as to whether the plaintiff exercised reasonable care and caution in approaching the tracks at the time of the injury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions.
    Plaintiff alleges that on the 9th of June, 1888, in the city of Elmira, while he was upon Water street, he received injuries occasioned by the negligence of defendant in operating its train of cars, and that he was free from contributory negligence at the time of receiving the injuries ; and it is alleged in the complaint that, “on the morning of the said 9th of June, the defendant, in violation of its duties, negligently failed and omitted to guard the said Water street crossing in any proper manner, and negligently failed and omitted to warn travelers upon said street of the approach of the passenger and express train above referred to.” And it is specifically alleged in the complaint that the defendant failed and omitted to ring the bell on the locomotive of the passenger and express train at the proper distance from the said Water street crossing, and to keep the same ringing, and neglected to sound the whistle attached to the locomotive of said passenger and express train, upon crossing Water street. It is also alleged that the plaintiff was a driver upon an omnibus connected with one of the hotels in the city, and that while in the line of such employment he was engaged in driving the omnibus down Water street, and was obliged to pass over the tracks of defendant’s railroad, where the same crossed Water street, and that while he was attempting to cross defendant’s tracks, the omnibus which he was driving was struck by the defendant’s passenger and express train, and the plaintiff was violently thrown therefrom, and received the injuries particularly detailed in the complaint and in the evidence given at the trial. The answer of the defendant consists simply of denials of certain allegations of the complaint. When the plaintiff rested, no motion for a nonsuit was made: but after the defendant’s evidence was in, a motion for a nonsuit was made on the grounds: “ First, that no evidence of negligence has been shown on the part of the defendant; second, that the plaintiff was guilty of negligence which contributed to the accident.” The motion was denied, and an exception was taken.

      D. C. Robinson, for app’lt; Bacon & Aldridge, for resp’t.
   Hardin, P. J.

— Appellant’s learned counsel contends that the evidence was insufficient to warrant the submission of the question of the defendant’s negligence to the jury. Plaintiff, when injured, was driving an omnibus from the depot towards the hotel, about six o’clock in the morning of the 9th of June, 1888, and while crossing the tracks of the défendant, where they intersect Water street in the city of Elmira, the approaching train of the defendant collided with the omnibus, and caused the plaintiff to receive the injuries of which the complains. There are some buildings which obstructed a person’s view while passing down Water street from the west, until within about fifteen feet of the east-bound track, and the defendant has a bridge, built in spans, with iron girders, over the river, through which bridge the trains of the defendant pass on approaching Water street, and a person, in order to observe an approaching train from the east, is required to be very near the tracks of the defendant. At the time the injury occurred, there was no flagman at the crossing, nor were the gates operated. It appears by the evidence that the plaintiff stopped his team, and looked and listened, and did not discover any train, and he started on, and was struck by the train approaching on the west-bound track. Thejewas some evidence tending to indicate that the train was running at a high rate. of speed. The witness Parker (at folio 109) says, in speaking of the speed, that it was “between 45 and 50 miles an hour ” when it passed him, and that he stood in the lane between Henry and Hudson streets, about 100 feet from the railroad track. Ohalker, who was with the plaintiff at the time of the collision, riding on the steps of the Rathbun omnibus, says: “Thetrain was running rapidly.” The witness Tubbs, who saw the accident, says the train was “ running rapidly.” The witness Bancher, who was near the corner of Main and Water streets when the accident occurred, testified that the train “ was going very rapidly. * * * When I say the train was running very rapidly, I mean very fast. I mean, I don’t know how many miles an hour, but more rapidly than I have seen trains run through that crossing.” The policeman, Powell, testified that the train was moving very rapidly. The witness Fitch testified that he saw the accident, and that the train was “ going so fast it could not stop quick." There was evidence given tending to show that, at the time, and prior to the accident, the bell was not rung or the whistle sounded. The plaintiff testified : “ I didn’t hear the bell ringing. All I mean to say is that I didn’t hear any bell. I didn’t hear any train at all, until it came out the end of the bridge, and I saw it, and no whistle.” The witness Houts, who had turned down Water street, and who saw the train strike the plaintiff’s omnibus, says: “I didn’t hear the train coming up to the time that it struck him. Then they rang the bell. I heard no whistle blown. I saw the train strike the bus. I shduld say the train was running very rapidly. It struck the bus in the rear.” The witness Parker says he heard the train blow Henry street, and adds: “ What I mean to say is, the bell was not ringing when it passed me. I was two blocks from the railroad bridge at the time the train passed me, over 1,200 feet south of the bridge. I was going in the direction of the train.” The witness Ciialker testified: “I didn’t hear tne bell or anything else.” The witness De Groat testified that he was on the east side of the railroad, near the space going down under the bridge, in front of Tucli & Taylor’s store, and that he saw the bus coming down Water street, and that he stopped there and looked on the bridge.. The witness adds : “ I heard no bell rung or whistle blown on the train as it carne along over the bridge. I stood there listening. There was no bell rung on the bridge.” The witness Tubbs testified that he saw the plaintiff drive down to the crossing, within a short distance of the track, and that he stopped and looked both ways to see if he could see a train, and not seeing any, he started on, and the horse had got on the west-bound track. The witness adds : “ And I saw the train coming out of the bridge. * * * When I stood there looking at the bus, I didn’t hear any train of cars coming, or see any. * * * It was very foggy on the bridge that morning. The fog hid the approach of the train coming over the bridge from my view, about halfway across the bridge, I should think.” The police officer, Powell, testified: I heard nothing but the crash of the bus; didn’t hear any bell rung or whistle blown.” And this witness adds that it was very foggy on the bridge. The witness Fitch, who saw the crash, testified: “I heard no whistle blown or bell rung.” In contradiction of the evidence offered by the plaintiff on the subject of the ringing of the bell or sounding of the whistle, defendant called its engineer and Clark, the fireman, who testified that he himself rung the bell; and also produced the testimony o£ Mosher, the brakeman, 'who testified he heard the bell ringing ; and also the testimony of Shirley and of Shepard and of Buckley. And when their evidence is looked into, it is found to be in opposition to, and in contradiction of, the testimony offered by the plaintiff on the subject of whether the bell rung or whistle sounded. The rule laid down in Culhane v. Railroad Co., 60 N. Y. 133, was reviewed and explained in Greany v. Railroad Co., 101 N. Y. 419. According to the doctrine laid down in the Greany Case, we think the trial judge was correct in receiving the evidence produced by the plaintiff tending to show that the bell was not rung or the whistle sounded; and that after evidence contradicting the testimony of the plaintiff’s witnesses was received, the trial judge committed no error in holding that a question of the fact was presented for the consideration of the jury in respect- to whether the bell was rung or whistle sounded, and reasonable precaution taken by the defendant, on the occasion of the injuries occurring. Where similar conflicting evidence was made the subject of review in Greany v. Railroad Co., 101 N. Y. 423, in the course of the opinion therein delivered by Dauforth, J., it was said: “Ajury must ascertain. An appellate court cannot say that the testimony of either should be rejected. Nor should a trial judge be required to determine its weight, or the fact which it did or did not ascertain, if it has any legal effect.” In the course of the charge, the trial judge carefully presented the questions of fact, as they were developed by the evidence, in respect to the defendant’s negligence, to the jury, in as favorable language as, in our opinion, the defendant was entitled to have employed.

It is contended by the appellant that “there is certainly sufficient proof of the plaintiff’s contributory negligence to bar his recovery, as a matter of law.” It is apparent from the evidence that he was “very .thoroughly familiar with all the dangers and circumstances of the crossing, and of the manner in which it was operated.” However, upon looking into his testimony, and the testimony of the witnesses who detailed the facts and circumstances attending the collision, we are of the opinion that the question of whether the plaintiff exercised reasonable care and caution in approaching the tracks at the time of the injuries was a question for the jury to determine. In the case of Oreany v. Railroad Co., stvpra, it was said that, although a party is bound to make all reasonable efforts to see, when approaching a crossing, that a careful, prudent man would make in like circumstances, “his failure to see an approaching train does not of itself discharge the company from liability for negligence on its part in omitting the statutory signal.” And in the course of the opinion it was said: “It would be error for a trial court to grant a nonsuit, if by any allowable deduction from the facts proved a cause of action might be sustained by the plaintiff; and, when such ruling has been upheld by reason of the contributory negligence of the person injured, it appeared that such negligence was conclusively established by evidence which left nothing either of inference or of fact in doubt or to be settled by a jury.” — citing Massoth v. Canal Co., 64 N. Y. 524. See, also, Chisholm v. State, 141 N. Y. 246; 56 St. Rep. 811; Mills v. Brooklyn City Railroad Co., 10 Misc. Rep. 1; 62 St. Rep. 645; McPeak v. Railroad Co., 66 St. Rep. 29, and cases cited. Perhaps, if the jury had followed implicity all the facts and circumstances disclosed in the testimony of Tanner and Shepard, a different result might have been reached; but it must be borne in mind it was the province'of the jury to weigh and consider the facts and circumstances disclosed in the testimony of those witnesses, in connection with the facts and circumstances disclosed in the testimony of the other witnesses. In fine, it was for the jury to determine whether the plaintiff had exercised reasonable care and caution, under the circumstances disclosed \?y the whole evidence before them. No other questions are made by the learned counsel for the appellant, and it therefore follows from the views already expressed that the verdict should be sustained.

Judgment and order affirmed, with costs.

All concur.


text:
    Nancy M. Skinner, Resp’t, v. James Steele, App’lt

      (Supreme (Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Deposition — Examination op party before trial — Laohes.
    Delay in making an application for an order to examine a party before trial is no reason for its refusal, if the necessity exists for it at the time of making the application.

      2. Same — Necessity.
    Such application will not be denied on the ground that the affidavit does not show any necessity for the examination before, rather than on, the trial.
    '3. Same — Privilege.
    Where it appears that the only material evidence that can be given by the part)r, sought to be examined, will tend to show that he is guilty of a crime, or subject him to a penalty or forfeiture, the order should not be granted ; but, if it appears that any testimony material to the case may be given not necessarily having that tendency, the examination may be had, and the party left to assert his privilege on the examination.
    4. Same — Second order.
    A party need not obtain leave of the court before applying for a second order for the examination of his adversary, where a previous order was vacated by reason of the insufficiency of the papers upon which the application was made.
    5. Same.
    A failure to comply with the provisions of rule 25 of the general rules of practice is at most an irregularity, and does not compel the court to refuse the order, or to vacate it after it has been granted.
    Appeal from an order, denying a motion to vacate and set aside an order for defendant's examination before trial.

      Steile & Prescott, for app’lt; Reed & Thomas, for resp’t.
   Martin, J.

— The appellant moved to vacate the order for his examination before trial upon the grounds (1) that the plaintiff was guilty of loches in obtaining the order; (2) that the papers upon which it was granted were insufficient, in that no necessity for the examination of the defendant before trial was shown, as no reason was given why the defendant should not be examined as a witness on the trial; (3) that the matters in reference to which the plaintiff proposed to examine the defendant were privileged; (4) that a previous order granted had been set aside, and the order setting it aside did not give leave to the plaintiff to apply for another ■order; (5) that the affidavits did not show what new facts are claimed to be shown on the application for the second order, or whether or not there were any new facts to be shown, as required by general court rule 25.

The appellant’s claim that the order for the examination of the defendant should have been set aside because the plaintiff did not make her application for such an order earlier cannot, we think, be sustained. The right of examination or discovery is given by the Code, and the fact that a party does not apply for the order as soon as possible is no reason why it should 'not be granted, if the necessity for it exists when the application is made.

Mor do we think the court erred in refusing to vacate the order on the ground that the papers upon which it was granted were insufficient. The affidavits and papers which were the basis of the order were full, and stated the matter required by the statute. They clearly disclosed the necessity for the examination of the defendant; that the plaintiff would be unable to prove the existing facts upon which her action was founded otherwise than by his •evidence; and that the plaintiff had no personal knowledge of the facts upon which her action was based. The appellant, however, contends that, as no reason was stated in the affidavit why he-might not be called and examined as a witness on the trial, no-necessity for his examination before trial is shown. It has been said in some of the cases cited by the appellant that, where it is-shown that the evidence of the party can be secured on the trial, it is not the practice of the courts to direct the party to submit to-an examination, at the instance of his adversary, before trial. Williams v. Folsom, 54 Hun, 308; 27 St. Rep. 375. Waters v. Shayne, 82 St. Rep. 435. But an examination of the Williams' Gase discloses that the decision in that case was based upon the case of Jenkins v. Putnam, 106 N. Y. 272; 8 St. Rep. 710, and that the decision in the Waters’ Gase was based upon the decision in the Williams’ Gase. When we examine the case of Jenkins v. Putnam, upon winch the decision in those cases seems to have-been based, we find that the only question involved in that case-was whether the statute was mandatory, and absolutely required a judge to grant an order for the examination of a party, or whether it was so far discretionary as to permit a judge to whom such an application was made, in his discretion, to deny it, where he could see that the examination was unnecessary. In discussing the question in that case, Earl, J., said:

“The nature of the controversy shows that the facts of the case were probably within the knowledge of the defendant, as the contract is alleged to have been made with him, and the services were claimed to have been rendered in the sale of his property. It is scarcely possible that the facts were not as well known to the defendant as to the plaintiff, and, as the defendant could examine the plaintiff at the trial, it does not appear that it was essential that he should have his examination before trial. * * * While the whole examination is placed within the absolute control of the judge, by the power given him to place limits upon it, it cannot be supposed that it was intended to absolutely bind him to grant it, whatever might be his judgment as to its propriety or necessity. Where the judge can see that the examination is sought merely for annoyance or for delay, and that it is not in fact-necessary and material, he ought not to be required, and cannot absolutely be required, to make the order.”

We find nothing in this case which justifies the contention of the appellant.

In Herbage v. City of Utica, 109 N. Y. 81, 82; 14 St. Rep. 845,. Danforth, J., said:

“ The cases cited by the respective counsel show that the practice in relation to the subject is not uniform throughout the various departments of the supreme court, but we are of the opinion that a party litigant may, in the discretion of the judge to whom application is made, under the provisions of sections 870, 872, 873, of the Code of Civil Procedure, have a general examination of his adversary as a witness in the cause, as well before as at the trial, and that it is not, as of course, to be limited to an affirmative cause of action or an affirmative defense set forth in favor of the party desiring that examination.”

In Grout v. Strong, 20 N. Y. Supp. 881, it was held that where the testimony sought is solely within the defendant’s control and knowledge, and an examination of the defendant is necessary to enable the plaintiff to maintain his action on the trial, such an examination before trial may properly be ordered. The same doctrine was laid down in Whale v. McMillen, 1 Misc. Rep. 89; 48 St. Rep. 32. The decision in Carter v. Good, 57 Hun, 116; 32 St. Rep. 501, was to the effect that the strictness or the rule usually governing the granting of an order for the examination of a party before trial will be relaxed when a relation of trust and confidence has existed between the parties to the action and that where the information desired seems to be important to the proper presentation, of the cause of action alleged, and wholly within the knowledge o£ the defendant, or more within his knowledge than that of the plaintiff, an order for the examination of the defendant should be granted. In this case the Williams' Case was referred to, and it was held that the rule stated in that case was not applicable to one like this. Without further examination of the authorities bearing upon this question, and without attempting to harmonize or further discuss them, we are of the opinion that the granting or refusal of this order was discretionary; that as it plainly appeared from the papers in the case that the facts sought to be proved by the defendant on his examination before trial were to be used on the trial, and could be proved only by him, a relation of trust and confidence existed between the parties to the action, and that the facts sought to be proved were wholly within the knowledge of the defendant, or at least more within his knowledge than that of the plaintiff, — the affidavits and papers upon which the order was granted must be held as sufficient.

This brings us to the consideration of the question whether all the matters as to which the plaintiff proposed to examine the defendant were privileged, upon the ground that any testimony that he might give upon such examination would tend to convict him of crime, or form a link in the chain of testimony tending to convict him of crime, or expose him to a penalty or forfeiture. It is admitted by the respondent that if the sole purpose of an examination under such an order to prove the party guilty of a criminal offense, or to subject him to a penalty or forfeiture, it should not be granted, and if granted, should be set aside. But he contends —and we think, correctly — that that rule applies only where there are no matters respecting which the party may give material and competent evidence which is not privileged. The rule is that if it appears that the one material evidence that can be given by the party sought to be examined will tend to show that he is guilty of a crime, or subject him to a penalty or forfeiture, the order should not be granted; but, if it appears that any testimony material to the case may be given not necessarily having that tendency, the examination may be had, and the party left to assert his privilege upon the examination. Orguinette Co. v. Haynes, 19 Wkly. Dig. 535; Corbett v. De Comeau, 5 Abb. N. C. 169: Ball, v. Publishing Co., 12 Civ. Pro. R. 4; Shipping Co. v. Sinclair, 49 N. Y. Supr. Ct. 242; Spraque v. Butterworth, 22 Hun, 502; Kinney v. Roberts, 26 id. 166; Trading Co. v. Brown, 27 id. 248 ; Fogg v. Fish, 30 id. 61; Andrews v. Prince, 31 id. 233; Manufacturing Co. v. Taussig, 33 id. 32; Davies v. Fish, 35 id. 430; Farmer v. Nat. L. Association, 73 id. 522; 56 St. Rep. 154; Judah v. Lane, 12 St. Rep. 130; Franks v. Reimer, 28 id. 156; Haynes v. Hatch, 39 id. 805. Applying to the rule stated to this case, it is quite obvious that the court committed no error in refusing to vacate the order upon the ground that any evidence which the defendant might be called upon to give upon such an examination was privileged, as manifestly there are facts material to the issues in this case, as to which the defendant may give evidence, which are not so privileged.

We are not aware of any statute, law, or rule of practice which requires a plaintiff to obtain leave of the court before applying for ,a second order for the examination of a defendant, where, as in this case, a previous order vacated by reason of the insufficiency ■ of the papers upon which the. application was made.

The only remaining ground upon which the appellant contends that the order should have been set' aside is that the respondent did fully comply with the provisions of rule 25 of the general rules of practice. This failure was, at most, an irregularity, and did not compel the court to refuse the order, or to vacate it after granted. Bean v. Tonnelle, 24 Hun, 353.

These considerations lead to the conclusion that the special term properly denied the defendant’s motion, and that the, order should be affirmed.

Order affirmed, with ten dollars costs and disbursements.

All concur.


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    Daniel J. Francis, Resp’t, v. William H. Porter, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Discovery and inspection — Reverence.
    Where an application for the inspection of books and papers is denied, with leave to renew, but no steps for a renewal have heen taken, the court has no power to order a reference to take proof as to what books and papers the opposite party had the power to produce for inspection.
    3. Same — Appeal.
    An order, directing a reference in such a case(i is appealable.
    Appeal from an order, requiring the defendant to allow an inspection of his books and papers.

      Hatch & Wickes, for app’lt; Edward H. Burdick, for resp’t.
   Martin, J.

— This was a proceeding under the Code of Civil Procedure for the discovery of books and papers. The statute required it to be commenced by petition, and it could not be by motion. Code, § 805; Dick v. Phillips, 41 Hun, 603; 5 St. Rep. 228. A petition was prepared and presented to a justice of this court, who made an order requiring the defendant to allow the discovery sought, or to show cause at a special term of the supreme court, to be held in the city of Syracuse on the 12th day of February, 1895, why the prayer of the petition should not be granted. Upon the return of that order, affidavits were read by the defendant, in which it was stated that most of the books and papers of which a discovery was sought were not under or within his control. The court, after reading and filing the papers of both parties read on the application, and after hearing counsel for the respective parties made an order requiring a certain assignment to be deposited with the clerk of Onondaga county, to remain there until the further order of the court, and in other respects denied the motion or application, with ten dollars costs to abide the event, but with leave to the plaintiff to renew his application for inspection upon the same papers without reservice, and to furnish further papers alleging certain facts more fully than they were alleged in the original petition and papers accompanying it. The court also ordered a reference to take proof as to what books and papers the defendant had the power to produce for inspection to be used upon a further application, and gave the plaintiff the right upon such hearing to cross-examine the defendant in relation thereto. From the latter portion of the order the defendant appealed. His contention is that, inasmuch as the court denied the plaintiff’s application for discovery, no motion or proceeding was pending in which an order to examine a party as upon a motion could be made, and hence that the portion of the order appealed from should be reversed. That the plaintiff’s application for an inspection was denied, is admitted by the respondent. It is manifest that, except as to the assignment ordered to be filed with the clerk of Onondaga county, the court denied the plaintiff’s application for the reason that upon the papers produced upon the hearing it was of the opinion that the plaintiff was not entitled to the relief asked for. With the exception mentioned, and that giving a right to renew, the order was one absolutely denying the plaintiff's application, with costs to abide the event of the action. Thus the question arises whether, after the application had been absolutely disposed of by granting a portion of the relief sought and denying the remainder, the court had authority to make an order appointing a referee to take the proof mentioned. Unless the legislature has, by some statute, conferred upon courts the power to make such an order, it does not, we think, exist. While the Code provides that where a court is authorized by that act to make an examination or inquiry it may direct a reference (section 827), that it may appoint a referee to report upon a question of fact arising upon a motion (section 1015), and that a referee may be appointed to take the deposition of a person not a party, to be used on a motion (section 885), yet we find no authority in these or any of the provisions of the Code which authorized the court to appoint a referee to take proof on a motion or application of this kind, when it had been already decided, and no question in relation to it was pending before the court. In this case no steps had been taken under that portion of the order which gave the plaintiff leave to renew his application, and consequently no proceedings in renewal of such application were pending. If the court, instead of absolutely deciding the application of the plaintiff, had suspended the hearing, and directed a reference to ascertain or talce proof as to certain questions of fact that were before it, another question would have been presented. The respondent has called our attention to no authority, statutory or other, which would uphold this order. We are of the opinion that the court was not justified in granting the portion of the order appealed from, and that it should be reversed. The respondent’s contention that the order was not appealable to this court cannot, we think, be sustained. The portion of the order appealed from affected a substantial right of the defendant, and reviewable upon the merits-upon appeal under subdivision 4 of section 1347 of the Code of Civil Procedure. Central Trust Co. v. New York C. & N. R. Co., 42 Hun, 602 ; 4 St. Rep. 639 ; Whitaker v. Desfosse, 7 Bosw. 678; Moffat v. Moffat, 3 How. Prac. (N. S.) 156.

Order, so far as appealed from, reversed, with $10 costs and disbursements. All concur.


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    Uri C. Van Vleck et al., Resp’ts, v. Emilus J. Enos et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed June 5, 1895.)

      1. Mortgage — Foreclosure—Statutory.
    The entry in the book, kept by the clerk for such purpose, of the time-of receiving and affixing the notice of sale upon foreclosure by advertisement, the subscription by the clerk and indexing of the notice to the name of the mortgagor, are among the requirements of the statute, a compliance-with which is essential to the validity of the foreclosure.

      2. Same — Affidavit of auctioneer.
    The affidavit of the auctioneer, who made the foreclosure sale, cannot be taken by the county clerk.
    3. Ejectment — By whom maintained.
    Ejectment cannot be maintained by one to whom a conveyance absolute in form is made merely as security.
    4. Decedent’s estate — Sale to pay debts.
    In a proceeding under section 3778 of the Code, even though a greater right than that possessed by the decedent at the time or his death can be sold, a purchaser with notice that the land, though conveyed to decedent by deed absolute, was so conveyed merely as security, will hold it as such security merely.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes.

      N. Foote, A. A. Foote, and C. A. Hitchcock, for app’lts; Mason & Cushman and John E. Smith, for resp’ts.
   Martin, J.

— This is an action of ejectment to recover the possession of a farm situated near the village of Hamilton, N, Y. The plaintiffs’ alleged title is based upon the claim that Dewitt C. Enos owned the premises, and gave a mortgage thereon, which, after his death, was foreclosed, and the farm was purchased by Eneas E. Enos, who thereupon became the owner, that, after the death of Eneas E. Enos, proceedings were instituted by his administrators to sell his real estate for the payment of his debts, which resulted in a sale of the premises to the plaintiffs and others; and that under and by virtue of such sale they acquired the title in fee to the farm in question. The defendants, however, claim that the mortgage given by Dewitt C. Enos was never properly foreclosed, and hence no title whatever passed to Eneas E. Enos; that, if it was properly foreclosed, it was purchased under an express arrangement or agreement whereby Eneas E. Enos took only a mortgage interest in the premises, while the fee belonged to Emilus J. Enos; that subsequently Emilus J. Enos became insolvent, and made a general assignment for the benefit of his creditors; that his assignee sold the interest of Emilus J. Enos in the premises, which was purchased for and belongs to the defendants Alanson T. Enos, Frank Enos, and Hetty Mitchell; and as the only title that Eneas E. had, or that the plaintiffs acquired, was that of a mortgagee, that neither Eneas nor the plaintiffs could maintain this action.

At the time of his death, Dewitt C. Enos was the owner of the premises in question, subject to a mortgage upon which there was then unpaid $2,500. He died December 14, 1868. At that time the premises were worth about $8,000. His wife and three infant children survived him. His widow was appointed administratix of his estate. After his death a plan was devised by and between the widow of Dewitt C. Enos, Alanson Trask, her father, and Emilus J. Enos, a brother of the decedent, by which the mortgage upon the premises was to be purchased by the widow and Emilus, foreclosed, and the title transferred to some other person for the purpose of divesting the title which the defendants Alan-son T. Enos, Frank Enos, and Hetty Mitchell, the then infant children of the decedent, had in the premises. In pursuance of this plan the widow of Dewitt C. Enos furnished $1,000 of the funds belonging to his estate, and Eneas E. Enos, a son of Emilus J. Enos, furnished $1,500 for the purpose of purchasing the mortgage upon the premises, foreclosing it, and thus divesting the title of the infant children of the decedent in the premises. The mortgage was purchased, and assigned to Alanson Trask, who immediately commenced proceedings to foreclose it by advertisement. The premises were sold June 28,1869, for $2,528, and bid off by Eneas E. Enos, under an agreement which had been made between himself, Emilus J. Enos, and Alanson Trask, by which Eneas E. was to bid off the premises for Emilus J., hold them as security for the $1,500 furnished by him to purchase the mortgage, give a mortgage to Anna F. for the $1,000 she had advanced, and give to Emilus J. a defeasance to convey the premises to him when he (Encas E-) was paid the $1,500 advanced, with interest. Such a defeasance was subsequently-executed, under seal, acknowledged, and delivered to Emilus J. Enos, and a mortgage for $1,000 was executed and delivered to Anna F. Enos. The premises continued in the possession and under the management and control of Emilus J. and his wife, and they received the entire proceeds thereof, until the commencement of this action. The premises were never conveyed by.Eneas E. to his father, Emilus J. In December, 1886, Emilus J. made a general assignment for the benefit of his creditors. September 10, 1887, his assignee sold all his right, title, and interest in the premises in question, which was purchased for the children of Dewitt C. Enos, to whom a deed was given October 29, 1887, which was recorded January 6, 1888. November 24, 1886, Eneas E. Enos died insolvent and intestate, leaving a widow, but no children. His widow and David C. Mott were appointed administrators of his estate. Subsequently, proceedings were instituted in surrogate’s court to sell the real estate of Eneas E. Enos for the payment of his debts. Under those proceedings the premises in question were sold March 80, 1888, to the plaintiffs and two other persons, who have since died, and an administrator’s deed, in the usual form, was given to the purchasers, and recorded April 18, 1888.

The evidence discloses that the purpose of the foreclosure and sale under the mortgage was to change the title to the property from the infant children of Dewitt 0. Enos to some one else, so as to provide a home or secure the property for Emil us J. and his wife. While it is true that this was to be principally at the expense of the infants, who were incompetent to consent, yet that the widow, or Trask, who was their grandfather, intended to deal fraudulently or unjustly by them, is not to be supposed. The result of the transaction to the infants was .the same, however commendable the motive may have been. The purpose of this transaction, and the -manner in which it was carried into execution, were well known to the widow, Trask, Emilus J., arid Eneas E. In the first place, the plaintiff’s title and right of recovery are dependent upon the validity of the mortgage foreclosure. If that was invalid, obviously, this judgment cannot be upheld. The appellants contend that the foreclosure proceedings were void, and consequently the judgment should be reversed. In foreclosure by advertisement, the statute, as it stood in 1869, required that a copy of the notice of foreclosure and sale should be-delivered, at least twelve weeks prior to the time specified for the sale, to the clerk of the county -in which the premises were situated, who-should immediately affix the same in a book prepared and kept by him for that purpose, and that the clerk should also enter in said book, at the bottom of such notice, the time of receiving and affixing the same, duly subscribed by him, and should index such notice to the name of the mortgagor. The affidavits of foreclosure and sale are the only evidence the plaintiffs have of their title to the premises. No deed was given. The affidavits contain no proof that the clerk entered in the book iq which notices of foreclosure and sale were affixed, at the bottom of the notice, the time of receiving and affixing the same, or that he subscribed it, or indexed the notice to the name of the mortgagor. As to these requirements offfhe statute, the affidavits are silent, and no other evidence was given upon the trial to show that these provisions of the statute were complied with. In Mowry v. Sanborn, 68 N. Y. 153,161, where a history of proceedings for the foreclosure of mortgages by advertisement was given, and the requii-ements of the statute on that subject were considered, after stating what the requirements of the statute were — that, among others, a copy of the notice should be delivered to the county clerk, to be affixed in a book in his office, and that an entry of the time of receiving and affixing the same should be made — Andrews, J., said :

“All these several acts required to be done were parts of the notice to be given, and were to be performed prior to the sale, at the times specified in the statute. These statute requirements were conditions precedent to a valid sale under the power, and have the same effect as if they were inserted in the mortgage, and a person claiming title under a statute foreclosure assumes the burden of showing that they were performed.”

“ Statutory foreclosure, or foreclosure by advertisement, is exclusively a creature of legislative enactment. * * * Every requirement of the statute must be strictly complied with, as failure to comply with any of its material directions will render the foreclosure irregular and void.” Wiltsie, Mortg. Forec. p. 879, § 768, and cases cited in note.

The respondents’ contention that the entry, in the book kept by the clerk for the affixing of such notices, of the time of receiving and affixing the notice subscribed by the clerk, and the indexing such notice to the name of the. mortgagor, were immaterial and unessential requirements, and need not be proved to establish the validity of the foreclosure, cannot; we think, be sustained. The entry in such book of the time of receiving and affixing the notice, the subscription by the clerk, and the indexing of the notice to the name of the mortgagor, are among the requirements of the statute, and are made a part of the act of affixing the notice in the book kept by the clerk. It would not be contended, we appehend, that if the notice had not been in any manner affixed in the book kept by the clerk the proceedings would be regular and the foreclosure valid. If to affix the notice in the book is material and necessary to a valid proceeding, it would seem that it should be affixed in the manner required by the statute, which includes the entry of the time when received and affixed, subscribed by the clerk, and that it should be indexed in the name of the mortgagor. This omission was a material one. and, as there was no evidence except the affidavit as to the manner of affixing such notice, it was, we think, insufficient to show that the requirements of the statute had been complied with.

Another objection to the validity of the foreclosure rests in the fact that the affidavit of the person who officiated as auctioneer at the sale was not verified before an officer authorized to take it. It was taken before the deputy clerk of the county of Madison. The statute regulating the foreclosure of mortgages by advertisement, as it then stood, provided that the affidavit might be taken and certified by any judge of a court of record, any supreme court commissioner, any commissioner of deeds, or a justice of the peace. 2 Rev. St. p. 547, § 11. There was no provision of statute which authorized even the county clerk to take such an affidavit. Craft v. Merrill, 14 N. Y. 456, tends to sustain the appellants’ theory that the affidavit was not properly verified. When we consider the provisions of the section above referred to, and examine section 49, p. 284, Rev. St., which conferred upon county clerks all the powers to take affidavits which they possessed at the time this affidavit was taken, and find that such oaths as were required by Jaw to be taken before particular officers were excepted, it is quite obvious that the depty clerk had no authority to take the affidavit in question. It is contended by the respondents, however, that the question whether the affidavit of sale was or was not sufficient is immaterial, because the sale was proved to have taken place. It was competent to prove the sale by common law evidence. Mowry v. Sanborn, 68 N. Y. 153. The statute required proof of the time and place at which the sale took place, the sum bid, and the name of the purchaser. It is true, the witness Foote testified that he thought he followed the statutory proceedings and went through the regular form of foreclosure, and that his other evidence tended to show that a sale took place. Yet we fail to find sufficient positive evidence of the facts required by the statute to be stated in the affidavit of sale to render it clear that the matters required to be stated in the affidavit were proved as distinctly and clearly as was necessary to sustain the validity of such foreclosure. We are therefore of the opinion that the evidence was insufficient to justify the court in holding, or the jury in finding, that the plaintiffs acquired a valid title to the premises through or under such foreclosure and sale.

If, however, it should be held that the proof of the foreclosure and sale under the mortgage was sufficient, still it is quite obvious from the evidence that the title to the premises was to vest in Eneas N. Enos, for a special purpose only, which was that he should execute a mortgage to Anna F. Enos for the $1,000 furnished by the estate of Dewitt G. Enos to purchase the mortgage foreclosed, retain the title, subject to such mortgage, as security for the payment of the money advanced by him for the same purpose, and upon repayment, convey the premises to Emilus J. Enos. That, as between the parties, Eneas E. Enos acquired only a mortgage interest in the premises, there is, we think, no doubt. A deed absolute in form, but in fact given simply as security for a debt, does not convey the title, but is, both at law and equity, a mortgage only. Barry v. Hamburg-Bremen Fire Insurance Co., 110 N. Y. 1; 16 St. Rep. 634. The rule that a deed absolute upon its face can, in equity, be shown by paroi, or other extrinsic evidence, to have been intended as a mortgage, has been, upon the fullest consideration, deliberately established by the decisions in this state, and will not, it seems, be departed from. Horn v. Keteltas, 46 N. Y. 605. One claiming under a conveyance in form a deed, but given as a mortgage, cannot maintain ejectment against the grantor, or any other person, and a reconveyance by the grantee to the grantor is not necessary to reinvest the latter with the absolute title. It is necessary only to clear up the record title. Shattuck v. Bascom, 105 N. Y. 39; 6 St. Rep. 775. To establish that a conveyance or transfer of property, absolute on its face, was intended as a mortgage, and to give it effect as such, it is not material that the conveyance should be made by the debtor, or by him in whom the equity of redemption is claimed to exist. Whenever property is transferred, no matter in what form or by what conveyance, as a security for debt, the transferree takes merely as a mortgage. Carr v. Carr, 52 N. Y. 251. The fact that a conveyance vests the legal title in the grantee is not decisive of the question whether it was an equitable mortgage. It may be a mortgage, although the defeasance be to another than the grantor. Pardee v. Treat, 82 N. Y. 385. There are many other cases holding the doctrine of those cited, but, as these principles seems to be well established in this state, we deem it unnecessary to cite further authorities. As the premises in question were purchased at the mortgage sale for the benefit of Emilus J. Enos, and the title given to Eneas E. Enos to secure him for the money advanced for the purchase of the mortgage, and to give a mortgage thereon to secure the $1,000 advanced for the same purpose by the widow of Dewitt 0. Enos, it is manifest that the title or equity in the premises was to belong to Emilus J. Enos, that it was held by Eneas E. Enos in trust for him, and that as such trustee, he was authorized to execute the mortgage to Anna F. Enos. The giving of this mortgage did not, we think, in any way affect the relation of the parties, or change that of Eneas E. Enos from that of mortgagee holding the equity or legal title in trust for Emilus J. Enos. Stoddard v. Whiting, 46 N. Y. 627. The principle of the cases cited fully sustains our conclusion that the only interest that Eneas E. Enos acquired to the premises in question was that of a mortgagee, and that he could not, as such, have maintained an action of ejectment.

This brings us to the consideration of the question whether the plaintiffs have any other or better title than Eneas E. Enos possessed at the time of his death. As we have already seen, the plaintiffs claim to have acquired their title to the premises by. virtue of an administrator’s sale for the payment of the debts and funeral expenses of Eneas E. Enos. The statute under which these proceedings were instituted provides only for the sale of the real property of which the decedent died seised, and the interest of a decedent in real property held by him under a contract for the purchase thereof made either with him, or with a person from whom he derived his interest. It also provides that a sale pursuant to the statute vests in the grantee all the estate, right, and interest of the decedent in the real property so conveyed, at the time of his death, free from dower not assigned, but subject to all subsisting charges, by judgment, mortgage, or otherwise, which existed at the time of his death. Code, §§ 2749, 2778. The evidence discloses that Eneas E. Enos was never in fact seised of the premises in question, but that the only interest he possessed was that of a mortgagee who held the legal title, as security for the payment of his debt. Under these circumstances, it is difficult to any justification in the statute for the sale of these premises under the proceeds instituted by the administrators, as the decedent was not seised of them at his death. It may be that in a proper action the plaintiffs would be entitled to recover the interest which Eneas E. had in the premises, but that question is not here. Even if the sale was authorized, the only estate, right, or interest which would vest in the grantee, under such a conveyance, would be that which the decedent had in the property at the time of his-death. In re Application of Dolan, 88 N. Y.l 309, 322. And as the only estate, -right, or interest that he had was that of a mortgagee, it would seem to follow that if the plaintiffs succeeded t» that interest they could not maintain this action. It may be that as between Eneas or Emilus, and a third person, who was a purchaser in good faith and for value, Eneas was to be considered astir e legal owner of the premises, and the purchaser would obtain a title to which the equity of Emilus would not attach ; but if the-purchase was -with notice the purchaser would be in no better position than his grantor, and his deed would be, at most, an assignment of Eneas’ interest in the property. If. therefore, we are incorrect in our conclusion that under the statute no greater right-could be sold than that possessed by the decedent at the time of his death, and the purchaser acquired the legal title to the premises upon recording his conveyance, then the question whether the plaintiffs were purchasers in good faith properly arises. Upon that question much evidence was given. It was shown that Emilus J. Enos and his wife were in actual, open, and visible possession of the premises, and had been so possessed of them for many years. This was constructive notice of the interest of Emilus J. in the premises, and was sufficient to put the plaintiffs upon inquiry to ascertain what the rights of the defendants were in the premises. Bassett v. Wood, 55 Hun, 587 ; 29 St. Rep. 901, and cases cited in opinion.

Again, the premises were sold by the assignee of Emilus J. in September, 1887, and purchased for the children . of Dewitt C. Enos, to whom a deed was given, which was recorded January 6, 1888, — more than two months before the premises were sold to-the plaintiffs, and more than three months before thejr deed was recorded. The proof also disclosed that a portion of the plaintiffs and the attorneys who was acting in the matter for all, acquired information in regard to the interest of the children of Dewitt C. Enos in the premises, and as to the interest of Emilus J. therein, which, if credited, was sufficient -to show that the plaintiffs were not purchasers in good faith. On the other hand, the plaintiffs introduced evidence which tended to show that some of thejn were informed by Emilus J. -that he had no title to the premises, and .that information as to the rights of the defendants was sought from one of the attorneys who foreclosed the mortgage, and who was the attorney for the assignee of Emilus J., and that no information showing that the title of Eneas was less than the legal title to the premises, subject to the $1,000 mortgage, could be obtained. That, at or about the time when it was offered for sale by the administrators, any of the plaintiffs made direct inquiry of Emilus J., or his wife, as to their interest in the farm, for the purpose- of ascertaining if they had any interest therein, is not pretended. The statements which were proved to have been made by Emilus J. were made at other times, and had no relation to this sale. Indeed, as to most of the plaintiffs, they made no effort to ascertain what rights Emilus J. and his wife had in the premises, although they were known to them to be in actual, open, and visible possession thereof. Nor was any effort made by them to ascertain the rights therein of the defendants Alanson T. Enos, Frank Enos, and Hetty Mitchell, although they had a deed of the premises, which had been recorded more than two months prior to the time of the administrator’s sale, which was known to some of the plaintiffs independent of the record, and some of them were informed that the foreclosure sale was in fraud of the rights of the children of Dewitt C. Enos. It may be that, as to some of the plaintiffs, the court was justified in submitting to the jury the question whether they were purchasers in good faith, and for value; and yet, as the burden of proof was upon them to show they were such purchasers (West-brook v. Gleason, 79 N. Y. 23 ; Seymour v. McKinstry, 106 N. Y. 230; 8 St. Rep. 580, an examination of the whole case renders it so improbable that they had neither constructive nor actual notice of the rights of the defendants in the premises as to lead us to the conclusion that, as to them, the verdict of the jury was against the weight of the evidence. As to the other plaintiffs, the evidence was insufficient to justify the submission to the jury of the question whether they were purchasers in good faith. In other words, we are of the opinion that the plaintiffs have not sufficiently borne the burden of showing that they were purchasers in good faith, and for value, to justify us in upholding the judgment herein upon the ground that they, as such, acquired a greater or better title than that possessed by Eneas C. Enos, at the time of his death. These views lead to the conclusion that the judgment should be reversed.

Judgment and order reversed, on the facts and law, and a new trial granted, with costs to abide the event.

All concur.


text:
    Eillene E. Niles, Resp’t, v. David Crocker et al. as Executors, etc., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895

    1. Executors — Disputed claim — Presentation.
    The demand of the executors by the claimant of the possession of a note executed by the testator and payable to the claimant, which was then in the possession of the executors, is not such a presentation of a claim for the amount of the note against the estate as to entitle the claimant to costs under section 1835 of the Code.
    2. Same — Disbursements.
    The provisions of section 317 of the former Code, which authorizes the recovery of disbursements in a proceeding for a claim against a decedent’s estate, is preserved by chapter 245 of 1880, and is still in force.
    Appeal from a judgment, in favor of plaintiff.
    The action or proceeding was under section 2718 of the Code, to recover the amount of a promissory note made by the defendants’ testator, and delivered to one of the defendants, to be delivered to the plaintiff in case of his death, and, in case he should recover from the illness from which he was then suffering, it "was to be returned to him. The testator died a few days after the making of the note, and the defendant, to whom it was delivered, retained it in his possession until an action was brought ■against him to recover its value, when he surrendered the note to the plaintiff. Thereupon, and on the 29th of November, 1893, the plaintiff presented to the defendants a claim for the amount •of such note and interest. The claim was rejected by the defendants, and a stipulation entered into by the parties referring the matter in controversy to a referee to hear and determine. The referee found in favor of the plaintiff, and awarded her a judgment for the amount of the note, and interest, with costs.
    Babcock, Sperry & Van Cleve, for app’lts; Millard & Stewart, for resp’t.
   Martin, J.

— After an examination of the evidence and rulings, contained in the appeal book, we have reached the conclusion that there were no rulings on the trial which would justify us in disturbing the judgment herein, and that the findings of the referee were sustained by the evidence. It, therefore, follows that the judgment, so far at least, as it relates to the amount of damages recovered, should be affirmed.

The appellants, however, contend that the referee erred in awarding the plaintiff costs, and that to that extent the judgment should be reversed or modified by deducting the amount of the costs from the judgment. The referee had power to award costs if the plaintiff was entitled to them. Code Civ. Proa § 2718. This authority is not denied by the appellants. The question whether the plaintiff was entitled to costs is regulated and controlled by sections 1835 and 1836 of the Code. If, under those sections, the plaintiff was not entitled to her caste, the referee erred in allowing them.

Section 1835 provides:

“Where a judgment for a sum of money only is rendered against an executor or administrator, * * * costs shall not be awarded against him, except as prescribed in the next section."

The next section declares:

“ Where it appears, in a case specified in the last section, that the plaintiff’s demand was presented within the time limited by a notice, published as prescribed by law, requiring creditors to present their claims; and that the payment thereof was unreasonably resisted or neglected, * * * the court may award the costs against the executor or administrator.”

It is conceded by the appellants that under the statute two things are necessary to entitle the plaintiff to costs: (1) That the demand must be presented within the time limited by a notice published as prescribed by law ; and (2) the demand must be unreasonably resisted or neglécted. The cases are also to that effect. Supplee v. Sayre, 51 Hun, 30 ; 20 St. Rep. 554; Horton v. Brown, 29 Hun, 654; King v. Todd, 15 N. Y. Supp. 156. That the written claim presented by the plaintiff was presented within the time limited by a notice, published as prescribed by law, does not appear. On the contrary, all the proof there is in .the case upon the question tends to show that it was not presented until long after such a notice was published. We think it may be admitted that the demand was unreasonably resisted or neglected, and yet the plaintiff not be entitled to costs. The only attempt made by the plaintiff to show any presentation of her claim within the time limited by the published notice was that one of the executors had possession of the note in question from the time it was delivered to him by the testator until about the time the written clause was presented. There is nothing to show that any claim was made upon the note against the estate of the testator previous to the delivery of the written one, but the only demand made of the defendant in whose possession it was was that he should deliver the note to the plaintiff or her attorney. It seems to us that this was not a sufficient presentation of a claim against the estate of the testator to constitute a compliance with the requirements of the statute. In Re Morton’s Estate, 58 St. Rep. 515, it was held that knowledge by a representative of the existence of a claim against his estate did not avoid the necessity of its due presentation, and that the presentation must be in writing, stating the nature and amount of the claim, and demanding its payment. In King v. Todd, supra, it was held that a mere verbal notice of a claim was not sufficient and that it should be presented in writing. In Cruikshank v. Cruikshank, 9 How. Prac. 850, it was held that, to entitle a party to cost against an executor or administrator, it must appear that an account or some claim against the estate, which would be supported by vouchers and affidavits, was presented to the executor, and that a vague demand of a gross sum was not sufficient.

The respondent seeks to uphold the decision of the referee as to costs upon the authority of Ganesvoort v. Nelson, 6 Hill, 889. If we assume the correctness of that decision, still it is not decisive of the question here, as that case is clearly distinguishable from this. In that case a claim was presented by letter, while in the case at bar there was no presentation of any claim whatever by the plaintiff. These considerations lead to the conclusion that the referee erred in allowing the plaintiff the costs of this action.

The only remaining question is whether the plaintiff was entitled to her disbursements.

Section 317 of the Code of Procedure contained the following provision:

“And whenever any claim against a deceased person shall be referred, pursuant to the provisions of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law.”

Subdivision 8, § 8, chap. 245, Laws 1880 (an act repealing the Code of Procedure), contained the following provision:

“The repeal effected by the first section of this act (which included the Code of Procedure) is subject to the following qualifications: * * * (8) It does not affect the right of a prevailing party to recover the fees of referees and witnesses and his other necessary disbursements upon the reference of a claim against a decedent, as provided in those portions of the Revieed Statutes left unrepealed after this act takes effect.”

The provisions of the Revised Statutes providing for and regulating the reference of a claim against a decedent were not at that time repealed. While the law stood thus, it was held that upon such a reference the prevailing party was entitled to recover his necessary disbursements, and that the provisions of the Code of Procedure allowing such disbursements were not repealed by the repealing act of 1880, but the right thereto was preserved by subdivision 8 of section 3 of that act. Larkins v. Maxon, 103 N. Y. 680; 3 St. Rep. 642. See also, Hallock v. Bacon, 64 Hun, 90; 45 St. Rep. 485, and cases cited in the opinion of Hardin, P. J.

In 1893 the legislature passed an act amending the Code of Civil Procedure by making the provisions of the Revised Statutes a part of the Code. Section 2718 now contains substantially the same provisions as were contained in the Revised Statutes as to the reference of claims against decedents, and the provisions of the Revised Statutes, which related to such a reference were repealed. Thus, the question is presented whether a substantial re-enactment of the Revised Statutes, by making them a part of the Code of Civil Procedure, and the repeal of that part of the Revised Statutes, have changed the rule in regard to referees’ fees, witnesses’ fees, and other disbursements paid or incurred by the prevailing party on the reference of a claim against the estate of a decedent. We have found no statute which repeals the portion of section 317 of the Code of Procedure to which we have referred, nor have we been able to find that subdivision 8 of section 3 of chapter 245 of the Laws of 1880 has been repealed. Assuming that these provisions of the statute are unrepealed, the question is whether they apply to a reference under section 2718 of the Code of Civil Procedure. We are disposed to think the provisions of those statutes are still in force. The purpose of the statute of 1880 was to retain the provision of the Code of Procedure which gave the right to a prevailing party to recover his necessary disbursements upon a reference of a claim against a decedent. It is true that the act added a description of the statutes under which a reference might then be had; but when the legislature in substance re-enacted the same law, making it a part of the Code of Civil Procedure, and did not repeal the provision of the Code of Procedure referred to, nor the provision of the repealing act of 1880, which preserved the right to such fees and disbursements, we are inclined to the opinion that it indicated an intent upon the part of the legislature to leave the provisions as to disbursements in such proceedings as they originally existed. If correct in this conclusion, it follows that the judgment should be modified by deducting from the amount of costs and disbursements the sum of $60, thereby reducing the judgment from the sum of $395.47 to the sum of $335.47, and that, as so modified, the judgment should be affirmed.

Judgment modified by reducing therefrom $60, costs allowed to the'plaintiff, thus reducing the judgment from the sum of $395.47 to the sum of $335.47, and so modified, affirmed, without costs of the appeal .to either party. All concur.


author: Herrick, J.

text:
    Georgiana Longyear, App’lt, v. Charles H. Carter, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    Attorney and Orient — Lien.
    Unless the answer sets up a counterclaim, the defendant’s attorney’s can have no lien under the provisions of section 66 of the Code.
    Appeal from ail order, vacating and setting aside an ex parte •order of the county judge, which dismissed the appeal to the county court from a final order of a justice of the peace in summary proceedings.

      Brinner & Newcomb, (A. S. Newcomb, of counsel), for app’lt. George Van Etten, for resp’t.
   Herrick, J.

— We are of the opinion that no lien exists in this case, in favor of defendant’s attorney, that prevents a settlement between the parties. By chapter 542 of the Laws of 1879, § 66 of the Code of Civil Procedure was so amended as to give attorneys a lien upon their clients’ causes of action, before judgment, which could not be affected by any settlement between the parties. To bring himself within this section, the defendant’s attorney should .have shown that the defendant had set forth a cause of action by way of a counterclaim in her answer to the plaintiff’s complaint. That is the only thing that would give him a lien before judgment. It is incumbent upon him to allege and prove those matters which entitle him to a lien. Hone having been set forth in the motion .papers herein, we must assume that no counterclaim was alleged in the'defendant’s answer, and that, therefore, there was nothing to which the defendant’s attorney’s lien could attach before judgment His claim, therefore, must rest upon the liens of attorneys as they existed at the common law. Pierson v. Safford, 30 Hun, 521; Levis v. Burke, 51 Hun, 71; 20 St. Rep. 789; Bevins v. Albro, (not yet officially reported) 68 St. Rep. At common law .an attorney had no lien before judgment, and the parties were at liberty to settle between themselves, and such settlement would not be disturbed unless it was shown that it was made collusively, and for the purpose of defrauding the attorneys out of their costs. Randall v. Van Wagenen, 115 N. Y. 527; 26 St. Rep. 438. There is nothing in the record before us to show that there was any fraud or collusion between the parties for the purpose of defrauding the attorneys, or either of them, out of their costs. In passing, it ¡nay be well to observe that the case of Randall v. Van Wagenen, supra, was decided upon an alleged cause of action that arose in 1887, prior tp the amendment of the Code herein referred to, which extended the liens of attorneys; and the decision of the court in relation thereto is therefore not an interpretation of the Code as it has existed since 1879, and consequently such decision is not in conflict with anything herein set forth as to the extent of an attorney’s lien.

The order appealed from should be reversed, with $10 costs and disbursements.

All concur.


text:
    Abner Mills, App’lt, v. Etta Stewart, Resp’t

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    Appeal — Order appointing referee.
    The only mode of reviewing an order, appointing a referee, is by a-separate appeal, without submitting to such order and proceeding to a hearing on the merits.
    Appeal from an order granting a reference.

      John A. Thompson, for app’lt; George H. Carpenter, for resp’t Scott.
   Herrick, J.

— The order appointing the referee cannot be reviewed upon this appeal. It is not an intermediate order, nor is this an appeal from a final judgment, within the meaning of section 1316-of the Code of Civil Procedure. Fox v. Matthiessen, 84 Hun, 396; 65 St. Rep. 554. The only way to review such an order is by a separate appeal. The appellant cannot submit to an order, and proceed to a hearing upon the merits, and take his chances of a favorable decision, and then, in the event of its being adverse to-him, attack the regularity of the order, or the authority of the-court to make it.

The question then comes upon the merits of the decision of the referee so appointed. The plaintiff’s attorney had the right to act for him in all matters relating to the foreclosure suit, until final judgment, at least. The proceedings here had not gone to that length. Only an interlocutory decree had been entered. The agreement between the plaintiff's attorney and Scott was in effect, nothing more than the law would award to Scott upon payment of the mortgage. Twombly v. Cassidy, 82 N. Y. 157 ; Arnold v. Green, 116 id. 566-572; 27 St. Rep. 724. The amount paid to Scott is undisputed. The person to whom it was paid being the plaintiff’s attorney, and in the very proceeding in which it was paid, the amount thereof should be credited on the interlocutory judgment.

The order should therefore be affirmed, with costs and disbursements.

All concur.


text:
    The People, Resp’t v. William B. Carter, App’lt

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Information — W aiver
    Where a defendant is brought before a magistrate for intoxication in a public place and without any other action on his part pleads guilty to-the oral charge, the requirements of section 699 of the Code of Criminal Procedure are waived, and his conviction will not be reversed because the-charge was not reduced to writing.
    Appeal from a judgment of the court of sessions, affirming a judgment of the police court of the city of Syracuse.

      M. F. Sherlock, for app’lt; B. J. Shove, for People.
   Martin, J.

—The charter of the city of Syracuse (Laws 1885, chap. 26) authorizes a police justice of that city to hold courts of special sessions for the trial of all offenses triable in a court of special sessions, and confers upon such court the powers and jurisdiction conferred upon courts of special sessions by title 6, chap. • 1, § 56, Code Cr. Proc. He is also given power and jurisdiction to try all offenses of the grade of misdemeanor under the laws of the state of New York. Section 35 of chapter 401 of the Laws of 1892 provides : “Any person who shall be intoxicated in a public place shall be guilty of disorderly conduct, may be arrested without warrant while so intoxicated, and shall be punished by a fine of not less than three nor more than ten dollars or by imprisonment not exceeding six months.” This offense was a misde-. meaner. Pen. Code, §6. Thus it is obvious that the trial court had jurisdiction to try the offense of which the defendant was charged.

From the papers and return in this case it is manifest that the defendant was arrested for being intoxicated in a public place in the city of Syracuse. He was arraigned before one of the police-justices of that city, and charged with that offense. He pleaded guilty, and it was thereupon adjudged that he should be imprisoned in the Onondaga county penitentiary for the term of thirty days. It seems to us quite clear that when the defendant was arraigned, which presumably involved a statement of the* charge made against him, and he pleaded guilty, the court had the right to convict him of that offense. The only ground upon which the appellant claims the judgment herein should be reversed is that the charge to which the defendant pleaded guilty was not sufficient to justify the court in convicting him of the crime, because it was not in writing and verified, and the officer making-the arrest was not sworn in reference to the offense. As sustaining that proposition, he cities in People v. Beatty, 39 Hun, 476. In that case the defendant was convicted of disturbing certain oyster beds. Upon- the hearing of an appeal from a judgment of the court of sessions affirming a judgment of the court of special sessions it was for the first time objected that in the charge before the court-of special sessions the prefix “un” had been omitted, making the-charge allege that the defendant “lawfully” did the acts set forth. The court in that case said that, if the question had been raised by the affidavit required by section 751 of the Oode of Criminal Procedure, it might have been sustained; but, as it was not so specified, it could not be considered. We find in that case no authority for the contention of the appellant. While the Code of Criminal Procedure (section 699) provides that, where such courts have jurisdiction, when the defendant is brought before the magistrate, the charge must be distinctly read to him, and he must be required to plead thereto, still we are of the opinion that an omission to reduce the charge to writing does not deprive the magistrate of jurisdiction, and that where, as in this case, a defendant is brought before a magistrate, and without any other action upon his part pleads guilty to the oral charge, the requirements of section 699 are waived, and his conviction should not be reversed because the charge was not reduced to writing. The filing of an information in writing was not required, as the statute expressly gives authority to arrest any person, intoxicated in a public place, without a warrant. A magistrate acquires jurisdiction of a person when the person is placed in custody, charged with crime. People ex rel. Gunn v. Webster, 75 Hun, 278 ; 58 St. Rep. 225: If, as we have already suggested, this omission was not jurisdictional, but a mere irregularity, it could be waived by the defendant. Pierson v. People, 79 N. Y. 424, 429. In People v. Rathbun, 21 Wend. 509, 542, Cowen, J., said : “He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.” See, also, People v. McIntosh, 43 Hun, 55; 6 St. Rep. 541. If, therefore, under the circumstances of this case, ánd under the statute creating the offense of which the defendant was •convicted, any written charge was necessary, we think its omission was at most-an irregularity, which was waived by the defendant when he pleaded guilty; and that the judgment of the court of sessions affirming the judgment of conviction by the court of special sessions should be affirmed.

Judgment of the court of sessions of Onondaga county, affirming the judgment of conviction and sentence of the court of special sessions, affirmed. All concur.