source: Caselaw Access Project

author: PUTNAM, J.

license: Public Domain

text:
    In re Westurn's Estate.
    (Supreme Court, Appellate Division, Third Department,
    July 7, 1896.)
    l._ Inheritance tax—Appraisement of estate.
    A decision by an appraiser including as part of the estate a note payable to decedent, will not be disturbed on appeal where there was no testimony that the maker had any defense, or that it could not be collected.
    3. Same—Deduction of claims.
    A refusal to deduct from the amount of the estate claims against it will not he qisturbed where uo evidence is given to show that there were valid claims against the estate.
    Parker and Merwin, JJ., dissenting.
    Appeal from surrogate’s court, Warren, county.
    Proceeding for the appraisement of the estate of S-amuel West-um, deceased, under the inheritance tax law. Prom an order confirming the appraisal, the heirs and next of kin appeal. Affirmed.
    A. Armstrong, Jr., for app’lts; Potter & Kellogg (J. A. Kellogg, of counsel), for resp't.
   PUTNAM, J.

The heirs and next of kin of Samuel Westurn, deceased, appeal from an order of the surrogate of the county of Warren, miade and entered on the 24th day of February, 1896, affirming, as modified, an appraisal of the inheritance tax upon the interest of the said appellants. Samuel Western died on the 22d day of May, 1890. A paper purporting to be his last will and testament was thereupon offered for and admitted to probate by the surrogate of Warren county. After a long litigation, and on May 21, 1895, it was finally adjudged that said will was procured by fraud and undue influence, and was void, and that Samuel Western died intestate. Thereupon, on June 3, 1895, D. F. Keetffe and Adel Oarney were appointed administrators of the estate of said deceased. On the 6th day of July, 1895, the surrogate of Warren county appointed T. W. McArtur appraiser, under the provisions of chapter 483, Laws 1885, .as amended by chapter 713, Laws 1887, which, -as Samuel Western died in 1890, it was conceded applied to his estate. The appraiser, after hearing the proefs and 'allegations of the parties, made his report, which was confirm-eld hy the said surrogate on the 19th day of September, 1895. On the 11th day of November, thereafter, the appellant took an appeal from the said appraisement, under the provisions of section 13 of the said -collateral inheritance tax act. A hearing was had before the surrogate, and farther evidence offered and received; and upon the 24th day of February, 1896, the surrogate made the final order from which this appeal is taken.

It is urged by the appellants: That the order of appraisal made by the said surrogate under the said collateral inheritance tax act was unauthorized and erroneous, because it was made before the expiration of a year from the granting of letters of administration, and before the time advertised for creditors to present claims bad elapsed; because a large claim against the estate had been presented, and other claims were liable to be presented, which might reduce the amount of the estate liable to an. inheritance tax; and also because a note for $1,500, made by one Burgess, to recover which an action was pending, was included in the assets of the estate, although the maker disputed his liability. That, therefore, when the order from which the appeal is taken was made, it was impossible for the surrogate to determine the amount of the estate-that passed to the appellants. It is true Uia't under the provisions of section 1, chap. 483, Laws 1885, as amended by chapter 713, Laws 1887, it is only the property that passes to the '’mirs or next of kin that is subject to the inheritance tax. It has .been held that the tax becomes due and payable immediately upon the death of the testator, and that the property liable to taxation should be appraised, and the -tax assessed, as sojon after such death as practicable. In re Vassar, 127 N. Y. 1; 37 St. Rep. 239. But the act in question makes no provision as to the time when the surrogate shall appoint an appraiser or make an appraisement. In many cases, doubtless, the- appraisement may be made immediately after the issuing of letters testamentary or of administration. But it is obvious that there are other cases where such an appraisement cannot be made until the amount of the debts against an estate are ascertained by legal proceedings; as in the- ease of a deceased person leaving a large amount of* property, but against whose estate large claims are made, and contested by the personal representatives, it cannot be known what amount of claims will be allowed, and hence the amount of the estate that will pass to the heirs and next of kin, until the settlement of the estate. In such a case it is clear that a surrogate would be unable to ascertain the amount of the estate liable to a tax under the provision of section 1 of the act in question, until the amount of the debts was legally ascertained. Section 5 of the act is as follows:

“The .penalty of ten per cent, per annum imposed by section four hereof, for the non-payment of said tax, shall not be charged where in cases by reason, of claims made upon the estate, necessary litigation or other unavoidable cause of delay, the estate of any decedent, or a part thereof, cannot be settled at the end of -eighteen months from the death of the decedent, and in such cases only six per cent, per annum shall be charged upon the said tax, fr-om the expiration of said eighteen months until the cause of such delav is removed.”

This section recognizes the fact that a surrogate may find it necessary to delay an appraisement, in consequence of claims made on the estate, litigation, or other unavoidable cause of delay. The question -arises, did the surrogate err, in the case under consideration, in making the final order of appraisement on the 24th day of February, Í896, from' which this appeal is taken? It ¡should be remembered that the order was made nearly six years •after the death of Samuel Westurn. As before stated, the statute does not prescribe at what time the surrogate shall make an appraisement under the act in question. He is not compelled to wait until the final accounting of the executor or administrator. See In re Vassar, supra. He can maize the appraisement at any time when he is a,hie to determine the amount of the -estate that will pass to the heirs and next of kin.

The appellants object that the appraisement includes a note of one Burgess, of $1,500, to recover the amount of which an action was pending. The appraiser, however, received evidence in regard to the claim, and held it valid. There was no testimony on the rehearing before the surrogate to show -that the maker had any legal defense to the action upon the note, or that .he was not responsible, or that the note could not l>e collected. In the absence of such testimony, we see no reason to. interfere with the determination of the appraiser and the court below, Folding that such a note was an asset of the estate of said deceased, passing to the appellants ¡as his next o-f kin.

The -appellants also object to the order on the ground that a claim had been presented to the -administrator, and other claims were liable to be presented, that might reduce the amount of the -estate that would pass to the appellants. The appraiser had reported to the surrogate that there were no- debts against the -es-t-ate of said deceased that he had been able to ascertain. We think, on the appeal to- the- surrogate, it was the business of the .appellant to show, if they could, that the report of the appraiser wa-s erroneous. This they could have d-one by showing, or giving evidence tending to ¿how, that there were valid claims against the estate. Showing the fact that one Lucinda Taft had presented a claim for $2,160 did not avail the appellants, or show -erior in -the conclusion of the appraiser. The claim, on its face, was a suspicious one. It was for services alleged to- have been performed for the estate from March 1, 1882, to March 1, 1888. Such alleged services terminated -over two year's before the death of Pamnp.il Wes-turn, and the claim was sworn to- on the 8th -of «October, 4895,— over seven years after the alleged termination of the employment. There was no proof that any action or proceeding had been commenced. If the appellants had -offered -any testimony sufficient to maize out a prima facie case that the claim in question was a valid one, -or even a doubtful one, or that there were probably other valid claims against the estate of the said .deceased for any considerable sum, doubtless it would have been the duty of the surrogate to have delayed the appraisement. Put under the peculiar circumstances of this case, considering the long period that had elapsed since the death of Samuel Western, when the order appealed from was made, the length of time the inheritance tax on his estate bad remained unpaid, and the fact that the statute does not prescribe the time when the appraisement shall he made, we are of the opinion that the surrogate, in his discretion, was authorized to determine the amount of the estate that passed to the appellants, at the time he did, in the best manner that he was ab'letodo. And, on examining the testimony offered or given hy the appellants on the appeal to the .surrogate from the appraisement made, we are unable to determine that there was any error in the final order herein.

The order should be affirmed, with costs to the respondent to be paid out of the estate.

LARDON and HERRICK, JJ., concur; PARKER, P. J., and MERWIN, J., dissent.


author: FOLLETT, J.

text:
    People ex rel. Wm. Sears v. William R. Tobey.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    1. Office and Officer—Civil service laws—State or city office.
    The office of clerk of the police justice of the city of Syracuse was created hy a local act providing for the government of the city. The clerk is appointed hy the police justice of the city, whose office exists by virtue of the city charter, and his salary is fixed by the common council, and payable out of the city funds. Held, that the clerk is a city officer, as distinguished from a state officer; and therefore the mayor has power to place the office in the competitive class, as provided by Laws 1883, chap. 354, § 8, as amended by Laws 188'4, chap. 410.
    2. Same—Confidential position.
    Laws 1885, chap. 26 (Syracuse City Charter), § 58, requires the clerk of the police justice to file a bond conditioned for the faithful discharge of his duties, which are prescribed hy sections 57, 59, 60. Held, that such clerk does not occupy a confidential position, so as to exempt him from the application of the civil service laws.
    3. Same—Action for removal—Pleading.
    The regulations governing- the civil service of the city of Syracuse provide that applications for positions must state whether the applicant served in the army or navy of the United States in the Civil "War, and that persons honorably discharged from such-service shall he preferred for appointment. Held, that a complaint, by a person -claiming to he entitled to an office as an honorably discharged -soldier, to remove another person from such office, need not state that defendant was not an honorably discharged soldier or sailor.
    Appeal from special term, Onondaga county.
    Proceeding on the relation of William Sears to remove William R. Tobey from the office of clerk of police justice of the city of Syracuse. From an interlocutory judgment overruling a det murrer to the complaint, defendant appeals. Affirmed.
    William S. Andrews, for app’lt; Theodore E. Hancock, for resp’t.
   FOLLETT, J.

This action was begun February 19, 1896, pursuant to sections 1948 and 1949 of the Code of Civil Procedure, to recover a judgment, removing the defendant from the office of clerk of the police justice of the city of Syracuse, adjudging the relator entitled to such office, and to recover a fine of $2,000, imposed by section 1956 of the Code of Civil Procedure, for unlawfully holding an office. The defendant demurred, upon the ground that “the complaint does not state facts sufficient to constitute a cause of action.” Section 57 of chapter 26 of the Laws of 1885 (charter of the city of Syracuse), as amended by chapter 336 of the Laws of 1895, provides:

“Sec. 57. The police justice of said city shall appoint a clerk, who shall receive an annual salary, to be fixed by the common council in their discretion, and not to exceed one thousand dollars, payable in monthly payments, and shall hold office at the pleasure of the police justice, and shall have power to take oaths- and acknowledgments; to examine under oath the informant and prosecutor and any witnesses he may produce, and' take their depositions in writing and cause the same to be subscribed by the parties making them, and to adjourn trial of proceedings in the absence of the police justice. The police justice may issue warrants upon depositions taken by the clerk as herein prescribed.”

Sections 58 and 59 of the charter describe the position of clerk of the police justice as an “office,” and the clerk of the police justice is a public officer within the meaning of the statutes of this state. Section 9 of article 5 of the constitution of this state provides:

“Sec. 9. Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and' villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as-practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the TJnited States in the late civil war, who are citizens and residents of this state, shall be -entitled to preference in appointment and promotion, wit-hont regiaxd to their standing on any list from which such appointment or promotion may he made.Laws shall be made to provide for the enforcement of this -section.”

Section 8 of chapter 354 of the Laws of 1883, as amended by chapter 410 of the Laws o-f 1884, provides:

“Sec. 8. The mayor of each city in this state is authorized and is hereby directed to prescribe such regulations for the admission of persons into the civil service of such city as may best promote the efficiency thereof and ascertain the fitness of candidates in respect to character, knowledge and ability for the branch of the service into which they seek to enter, and for this purpose he shall, from time to time, employ suitable persons to conduct such enquiries and make examinations, and shall prescribe their duties and establish regulations for the conduct of persons who may receive appointment in the said service. And the regulations so to be prescribed shall, among other things, provide and declare as in the second subdivision of the second section of this act is provided .and declared in reference to regulations for admission to the civil service of the state.”

The second subdivision of the second section referred to provides for open competitive examinations and for noncompetitive examinations. Pursuant to this section the mayor of the city of Syracuse, in January, 1895, classified the officers and employes of the city and placed the- clerk of the police justice in the competitive class, which classification was, January 17, 1895, approved by the board of civil service commissioners of the state. In January, 1896, at a meeting of the civil service examiners of the city of Syracuse, William E. Tobey, the defendant, Michael McDermott, and William Sears, the relator, were examined as to their eligibility for the office of clerk of the police justice. Tobey’s percentage was 95, and the percentage of Michael McDermott and William Sears was each 94 1-2. January 23, 1896, the examiners certified in writing to the police justice that said three persons were eligible to the office of clerk, and that William Sears had presented official papera showing that he was an honorably discharged soldier of the United States in the late Civil War, having served from October 28, 1861, to June 28, 1865. January 27, 1896, the police justice refused to appoint the relator and appointed the defendant to the office, which he now holds.

Chapter 344 of the Laws of 1895- provides:

“In all examinations for positions where the compensation exceeds four dollars a day, such honorably discharged soldiers and sailors of the late Civil War shall be appointed without regard to their standing on any list from which such appointment or promotion shall be made, and shall be preferred for appointment to positions in the civil service of the state and of the cities, counties, towns and villages affected by this act, and the several acts hereby amended, over all other persons, though graded lower than others so examined and reported, provided their qualifications and fitness shall have been ascertained- as provided under this act.”

Under the provision of the statute and the section of the constitution above quoted, the relator was entitled to be appointed clerk of the police justice, provided the classification adopted by the mayor of the city of Syracuse was authorized 'by the statutes of this state.

The foregoing facts are alleged in the complaint. The defendant seeks to sustain his demurrer on three grounds: (1) That the office of clerk of the police justice is a state office instead of a city office, and that the mayor was without power to- place it in the competitive list; (2) that the office is a -confidential one, and therefore could not he included in the competitive list; (3) that it is not alleged in the complaint that the defendant is not an honorably discharged soldier of the late Civil War.

The first question presented' on this appeal is whether the -clerk of the police justice is in the civil service of the state- or in the civil service of the city of Syracuse, within the meaning of the section of the constitution above quoted, and chapter 354 of the Laws of 1883,—the civil service act,-—and the acts amendatory thereof and supplementary thereto-. Under the constitution and these statutes, the officers and employes embraced within their provisions are divided into two classes: (1) Those in the service of the state; (2) those in the service of the civil divisions of the state. Section 7 of the civil service act, as amended by chapter 681 of the Laws of 1894, provides:

“It shall he tlhe duty of the said commission to certify to the comptroller the name of every officer, clerk or other person in the public service of the state, in either of said classes, appointed or employed therein in pursuance of law and of the rules and regulations made in pursuance of law, stating in each case the title or character of the office or employment-, and the date of the commencement of service by virtue thereof; and, in like manner to certify to the comptroller, the name of each officer, clerk or other person in the p-uhlic service of the state, in either of the said classes appointed or employed therein in violation -of law or of the rules or regulations made in pursuance of law; and to certify to the comptroller, in like manner, every change occurring in any such office or employment forthwith, on the occurrence of the change. It .shall be unlawful for the comptroller to- draw his warrant for the payment of any salary or compensation to any officer, clerk qr other person in the public service of the state, in either of said classes, who is not so certified as having been -appointed or employed in pursuance of law and of the rules and regulations made in pursuance of law. * * * In each city of the state in which rules and regulations have been adopted under the provisions of this act, any officer of such city whose duty it is to sign or countersign warrants, shall not draw, sign or issue, or authorize the- drawing, signing, or issuing, of any warrant on the treasurer or other disbursing officer of such city for the payment of salary to any person in its service whose appointment has not been made in pursuance of this act, and the rules-in force thereunder.”

The intention of the constitution and of the statutes—clearly expiessed, it seems to me—is iliat persons appointed and serving under general laws relating to the government of the state, and who are paid out of the funds of the state, through the comptroller, are “in the civil service of the state,” and that persons appointed under local statutes providing for the government of a civil division of the state,—a city,—and who are paid out of the funds of the city, are in the civil service of the city in which they serve. The office in question e-xists by virtue of a local act providing for the government of the city of Syracuse. ' The office is to be filled by an appointment made by the police justice of that city. The office of police justice is created and exists by force ol the charter of the city. The salary of the clerk is fixed by the common council of the city and is payable out of the fund® thereof, and it follows that the clerk of the police justice is in the civil service of the city of Syracuse, and that the mayor of that city had power to provide that the office must he filled by a person certified as eligible thereto by the civil service examiners of that city.

Is the office of clerk of the police justice a confidential one? By section 58 of the charter the clerk is required to file a bond, with sureties, to be approved by the mayor of the city, and conditioned for the faithful discharge of the duties of his office, which are prescribed by sections 57, 58, and 60 of the charter. The police justice has no- power to determine what he shall or shall no't do, and the clerk is neither a confidential employe nor a deputy of the police justice, but is an independent officer whose duties are prescribed by statute.

Is it necessary that it should he alleged in the complaint that the defendant is not an honorably discharged soldier of the late Civil War? The regulations governing the civil service of the city of Syracuse are affixed to" and form a part of the complaint in this action. Regulation 5 provides:

“Applications of competitors for positions included in schedule B (in which the clerk of the police justice is placed) must be addresed to the Secretary of the Municipal Service Examining Board, City Hall, Syracuse, and the applicant must state therein, on oath, and in his own handwriting: * * * (9) If in the military or naval service of the .United States in the late war, give name of organization or vessel to which attached, date of enlistment or commission, position or rank, date and cause of discharge from the service, and any physical disability incurred in such service.”

Subdivision® 1 and 2 of the twelfth regulation provide:

“(1) Whenever any officer having the p-ower of appointment or to employment in any position in Schedule B shall so request, the board of examiners shall certify to him the names of three eligible persons who are graded highest on the proper register. indicating such of them, if any, as have been honorably discharged from the military or naval service of the United States in the late war.

“(2) From the three persons whose names are so certified, the officer shall make a selection to fill the vacant place, subject, however, to the provisions of law, giving preference to persons who have been honorably discharged from the military or naval service in the late war.”

¡Regulation 22 provides:

“Persons who have been honorably discharged from service in the army or navy of the United States in the late war shall be preferred for appointments to positions in the public service over other persons of equal standing as ascertained under these regulations, and the persons thus preferred shall not he disqualified from holding any position in the civil service on account of his age, nor by reason of any physical disability, provided snob disability does not render him incompetent to perform the duties of the position applied for.”

Under these regulations, if the defendant claimed that he was entitled to á preference by reason of being a discharged soldier, it was ¡his duty to make the claim in his application. The police justice was required to make the appointment from the list as certified, and to prefer the soldier over the other competitors, provided he was not incompetent to perform the duties of the office. It is alleged in the complaint that the examiners certified that William Sears presented official papers to said board, showing that he was an honorably discharged soldier of the late Civil War, having served in the first New York independent battery from October 28, 1861, to June 28, 1865. It is further alleged that the police justice refused to appoint the relator upon the ground that the civil service act did not apply to that office, and that the relator was not entitled to a preference as a soldier because the office was a confidential one, and excepted by the statute from the provisions of the act giving a preference to discharged soldiers. These facts being alleged in the complaint, showing that, as among tire three persons whose names were on the eligible list,' the relator was entitled to he selected therefrom, it is not necessary to allege a negative showing that for certain reasons the defendant was not.entitled to the appointment. If the relator was entitled to the place, it follows that the defendant was not. In case a person had been appointed whose name was not on the eligible list, it would not be necessary to allege in a complaint that the appointee did not possess the qnalifications necesary to entitle him to be placed thereon. The police justice was hound to appoint the person shown by the eligible list to he entitled to the place over the others on that list.

¡None of the positions of the learned counsel for the appellant are sustainable, and the interlocutory judgment should be affirmed, with costs, but with leave to the defendant to withdraw his demurrer and answer upon the payment of costs.

All concur.


author: BROWN, P. J.

text:
    James Patterson v. The City of Brooklyn.
    (Supreme Court, Appellate Division, Second Department,
    June 16, 1896.)
    1. Municipal cobpobations—Action against—Pbbsentation op claim.
    Brooklyn City Charter (Laws 1888, chap. 583), tit. 22, § 30, as amended by Laws 1894, chap, 568, which provides that no action shall be brought against the city unless a statement of the claim, duly verified, was presented to the comptroller, requires an affidavit of verification to be attached to the statement when presented to the comptroller.
    3. Same—Substantial bequieement.
    Such requirement is substantial, and an action cannot he maintained 'unless it is complied with.
    Appeal from trial term, Kings county.
    Action by James Patterson, as administrator of Thomas Patterson, bis deceased son (an infant of the age of six ye art at the date of his death), against the city of Brooklyn, to recover damages for the death of intestate. From a judgment entered on a verdict in favor of plaintiff for $2,500 damages and $236.49 costs and disbursements, and from an order denying a motion for a new trial, defendant appeals.
    Joseph A. Burr, for app’lt; Adelbert E. Carroll, for resp’t.
   BROWN, P. J.

We are of the opinion that the appellant’s exception to the denial of the motion to dismiss the complaint was well taken, on the ground that the respondent had failed to present to the comptroller of the city such a statement of his claim as is required by section 30, title 22, of the charter (Laws 1894, chap. 568). That section requires that the statement of the claim presented to the comptroller shall be duly verified, and provides that “compliance with all the provisions of the section shall be an absolute prerequisite to the institution or maintenance of any action against the city of Brooklyn and shall he pleaded in the complaint.” The statement presented to the comptroller by the respondent was signed by his attorney, but not sworn to. We are of the opinion that the statute requires the statement to he sworn to, and that an affidavit of verification must be attached to it when presented to the comptroller. It is true that the comptroller is given power to examine the claimant, and! jhat by so doing he may verify the claim; but the term “verified,” as applied to pleadings and statements of this character, has a settled meaning in our statutory law, and it refers to an affidavit attached to the statement, as to the truth of the matters therein set forth. That the legislature, in requiring that the claim be “duly verified,” did not refer to a verification thereof by an examination of the complainant by the comptroller, is clear from the plain language of the law,—that “ no action shall be prosecuted against the city until thirty days after the statement shall have been presented to the comptroller specifying in detail and duly verified;” that is, that the statement, when presented to the comptroller, shall be verified. Unless such a verified statement is-presented, there is a statutory bar against the prosecution of the action.

The provision of the statute which requires this statement to be verified is a substantial one, and cannot be set aside or disregarded by the courts. Municipal liability is a subject wholly within the control of the legislature. That body may refuse a. right of action against municipal corporations, and it can impose and condition precedent to the maintenance of actions against such corporations which it chooses. Reining v. City of Buffalo, 102 N. Y. 308; 2 St. Rep. 10; Mertz v. City of Brooklyn, 11 N. Y. Supp. 778; Id., 128 N. Y. 617; 38 St. Rep. 1014; Curry v. City of Buffalo, 135 N. Y. 366; 48 St. Rep. 482; Simons v. City of Brooklyn (Sup.; officially reported), 36 N. Y. Supp. 1133. The case before us is within the rule applied in the cases cited, and no distinction exists between those cases where the question was presented on a demurrer to a defective complaint, and those where it is presented upon the trial of an issue of fact.

The judgment and order must he reversed, and a new trial granted, with costs to abide the event.

All concur.


author: MERWIN, J.

text:
    Patrick Moriarty v. The City of Albany.
    (Supreme Court, Appellate Division, Third Department,
    July 7, 1896.)
    Municipal corporations—Personal injuries—Notice op claim.
    Albany City Charter (Laws 1883, chap. 298, as amended by Laws 1891, chap. 286), tit. 3, § 45, requires claims against the city for personal injuries to be presented to the common council within three-months after the injury is received, and provides that the law department, when such claims are referred to it by the council, must report within three months after date of reference. Section 51 provides that no action shall he brought within forty days after a claim shall have been presented, and the common council shall have neglected or refused to make any adjustment or payment thereof. Held, that where the common council refers a claim to the law department, no action will lie until the law department has reported to the council, which it may do at any time within three months.
    Appeal from trial term, Albany county.

      Action by Patrick Moriarty against the city of Albany for personal injuries. The complaint was dismissed, and plaintiff ■ appeals.
    Eugene D. Flanigan, for app’lt; John A. Delehanty, for resp’t.
   MERWIN, J.

In the afternoon of April 11, 1893, the plaintiff, as he was walking along the sidewalk on the easterly side of Dean street, in the city of Albany, fell, and received an injury for which in this action he seeks to recover damages from the defendant upon the ground of negligence. At the place where plaintiff fell there was a driveway from the gutter to a side entrance into a building next the street line. This was used for driving horses and wagons into the building for the purpose of loading and unloading goods. This driveway was formed of plank ago-ut thirteen feet long, laid parallel -with the sidewalk, and on sleepers, and extending from the side of the building t-o within aboult eighteen inches of the line of the curbing; and from there it was stone block pavement to the gutter, no curbing being laid. The platform of the building was five or six inches above the level of the sidewalk, and descended gradually to the level of the sidewalk -at about the line of the curbing. The plaintiff testifies that -as he canle along he gave one step on the planking, and his foot wentLthrongh, and lie fell; that lie thought the walk was s-afe enough to walk on, -but after he fell he discovered that the plank he stepped on was rotten. There was other evidence tending to show that the plank broke through by reason of its being rotten, and that the space under the plank at that point was about four inches deep. It does not appeal* ivho laid the platform. Presumptively it was the owner or occupant of the building. Mor does it appear when it was laid, though there is evidence that it appeared -old. The ends of some of the plank appeared somewhat decayed, and there were two or three patches on the platform. By section 45 of title 3 of the charter of defendant (chapter 298 of the Laws of 1883), as -amended by chapter 286 of the Laws of 1891, it is provided that claims like the present one shall he presented to the common council in writing within three months after the 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 claims as aforesaid, within three months, shall he a bar to any claim or action therefor against the city; and the law department, which shall consist of the recorder of said city of Albany, the law committee of the common council and the corporation counsel, sh-all consider said claim and report thereon to the common council within three months from the date of the reference of such claim, hut no such claim shall he settled or paid except as prescribed in section 10 of title 5 of this act.” Section 10, referred to, provides for a method of compromising and settling such claims. By section 51 of title 3, as amended by chapter 286 of 1801, it is provided:

“That no action or suit shall he brought or maintained until after the expiration of forty days after said claim shall have been presented to the said common council as herein provided for; and said common council shall have neglected or refused to make any adjustment or payment thereof.”

On the 30th June, 1893, the plaintiff presented to the common council his claim in writing, duly verified, and it was referred to the law committee. In this claim the cause of the* injury is stated as follows:

“In consequence of his striking his foot against an obstruction upon the sidewalk and falling on the said sidewalk on the east side of Dean street, between Hudson avenue and State street, in the city of Albany, and on that portion thereof fronting tire west side of the building known as ‘Ho. 16 State Street/ by reason of the said walk at that point coming to an abrupt rise, ‘and covered with boards, which hoards are worn and broken, and present a ragged and irregular surface; and the sidewalk outside of the same sloping toward the gutter, and built and constructed of irregular pieces of paving.”

On the 2d September, 1893, the plaintiff served on the corporation counsel notice of intention to commence .this action, and the action was commenced on the 7th September, 1893. Prior to that time, no report had been made on the claim to the common counsel by the law department of the city, and there had been no settlement of the claim. It was claimed on the part of the defendant on the motion for nonsuit, and is here claimed: (1) That the defendant cannot he charged with a neglect or refusal to make any adjustment until after the lapse of three mouths from the date of .the presentment of the claim, unless the law department sooner reports thereon; and that, as no such report was made, and this action was commenced before the expiration of three months, it was prematurely brought; (2) that the claim as presented did ,not comply with the statute in its statement of the cause of the injury; (3) that the evidence is mot sufficient to justify a finding that any negligence on the part of defendant caused the injury. By section 51, above referred to, there must not only he the lapse of forty days, hut also it must appear that the common council have neglected or refused to make any adjustment or payment. By section 45 it was provided that the law department “shall consider” the claim, and report thereon, and it had three months within which to do it. It may he, the common council might have refused to adjust or pay without referring the claim, but under the statute it had a right to refer it. Oan it be said that, because it exercised the right the law gave it, it is chargeable with neglect or refusal to adjust or pay? The two sections are a part of the same amendatory act. Gan it be said that, although the city, by its law department, might investigate for the period of three months, still, if the common council did not act in forty days, it was chargeable with neglect? It is to he presumed that -the legislature designed that 'the provisions of both sections should be operative. They should, therefore, he construed so as to give effect to all the provisions. Manifestly, it was the design that the common council, if it so desired, should have the benefit of the judgment of the law department, and that in such case the law department bad three months in which to act. Pending this investigation, and until the law department reported, the common council had a right to wait, and should not he charged with negligence in so doing. The law.clearly contemplated a full opportunity to investigate 'before a suit should he commenced, and provided a method for such investigation. If, however, the common council absolutely refused to adjust or pay without a reference to the law department, or if the law department made its report before the expiration of the forty days, and the common council did not act thereon, then at the expiration of the forty days .a suit would he in order. This construction would give effect to the provisions of both sections, and is in harmony with the view taken by the court in Jones v. City of Albany, 62 Hun, 353, 356; 42 St. Rep. 235, in a case arising under the same statute-before the amendment. In the present case the claim was, immediately upon its presentment, refered to the law committee, and no report had been made when the suit was commenced, which was done before the expiration of three months, and there was no evidence of any refusal to adjust or pay. I see no escape from the conclusion that the common council had a right to wait, and should not, because they waited, he charged with neglect or refusal; and that, therefore, the action w,as prematurely brought. The notice of intention to sue, which was served on the 2d September, 1893, was apparently served under the provisions of chapter 572 of the Laws of 1886. ‘ That was a general act, and would not override the special provisions in defendant’s charter. Besides, the sections of the charter involved here were enacted in 1891. So I do not see- how the plaintiff can get any benefit from his notice of intention to sue.

The defendant also claims to sustain the nonsuit for the reason that the plaintiff's notice of claim did not properly state tie cause of the injury. According to the notice, the plaintiff fell in consequence of his foot striking against an obstruction upon the sidewalk. According to the evidence, he fell by reason of his foot breaking through one of the planks, which was rotten. The notice stated a cause, hut, as the defendant claims, did not state the cause within the meaning of the statute. This question, however, as well as the question whether, by reason of the latent defect in the plank, and the absence of proof of actual notice (Hunt v. Mayor, etc., 52 N. Y. Super. Ct. 198; 36 Barb. 226; Jorgensen v. Squires, 144 N. Y. 283; 63 St. Rep. 686; McCarthy v. City of Syracuse, 46 N. Y. 194, 198; Rapho Tp. v. Moore, 68 Pa. St. 404, 408; Shear, — R. Neg. § 148; Bostwick v. Barlow, 14 Hun, 177; Harrington v. Village of Phoenix, 41 id. 270), the defendant is chargeable with negligence as to the condition of the walk, need not, m view of the conclusion on the first proposition, be here considered.

Judgment and order affirmed, with costs.

All concur.


author: McADAM, J.

text:
    Peter Kehrbaum v. Albert Kegal.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    1. Mutual benefit insubance—Nonpayment of dues.
    A member of a mutual benefit association is not in default for nonpayment of dues, where the branch to which he was attached has been dissolved.
    3. Same—Fa'ilube of benefit fund.
    In an action on a mutual benefit certificate, the burden is on defendant to show that the failure of the association to realize the fund from which the benefit was payable was not due to any fault, or negligence on its part.
    Appeal from Eighth district court.
    Action by Peter Kehrbaum against Albert Kegal, president of the United Wood Carvers’ Association of New York. There was a judgment in favor of plaintiff, and defendant appeals. Affirmed.
    A. P. Wagener, for app’lt; O. H. Wefing, for resp’t.
   McADAM, J.

The action was to recover $150 death-benefit moneys from the defendant, an organization known as the United Wood Carvers’ Association of New York, branch of the International Wood Carvers’ Association of North America; the former having headquarters in New York city, with a constitution and by-laws of its own, and the latter located in Boston, Mass. Section 7 of article 3 of the defendant’s by laws provides that “each and every member of this association who may die, his family or next of kin shall he entitled to the death benefit as prescribed in the international constitution: provided he he not more than three months in arrears for dues,' special taxes or death assessments for one month (after date of levy), at the time of his death.” Article 9 of the constitution of the International Wood Carvers’ Association of North America provides (section 1) “that upon the death of a member in good standing the sum of fifty dollars shall be ‘paid to his wife, nearest of kin, or legatee ;” and (section 2) “that upon the death of a member who has been continually in good standing for a period of six months, dating from the timo of his admission or reinstatement, the sum of one hundred and fifty dollars shall be paid to his wife, nearest of kin, or legatee.” The father of the deceased', as the nearest of kin, sues to recover the $150.

It appears that the deceased was a member of the Grand Rapids branch of the International Association, and that branch had disbanded prior to. April, 1894, when application was made by him to the defendant for membership. The minute book of the defendant shows that on April 27, 1894, the defendant inquired of the Grand Rapids Association whether the applicant was indebted to that body. It was ascertained that the applicant was .•so indebted to the amount of $7.50, which was paid prior to October 27, 1894, and the amount sent to the International Association, in Boston. The constitution of the International Association provides (article 7, § 7) that “affiliated associations are prohibited from initiating expelled or dropped members of sister associations until said members have placed themselves in good •standing with the association from which they were expelled or dropped.” The purpose of paying the arrearages was to make the applicant eligible for admission to the defendant association. Having settled all delinquencies, he was reported to he in good' standing, and was eligible for admission as a member of the local body October 27, 1894, though not formally initiated therein until January 4, 1895, if on any theory any formal admission -or further initiation was necessary. The deceased had all along been a member of the International body, and had never been •expelled o-r dropped by it or any of its subordinate lodges. The Grand Rapids branch disbanded, so that dues could no longer he paid to- i t. The result was somewhat analogous to that brought about by the suspension of an insurance company. In such case a poli by holder do-es not forfeit his policy by omitting to pay the annual premium thereon. People v. Empire Mut. Life Ins. Co., 92 N. Y. 105; Attorney General v. Guardian Mut. Life Ins. Co., 82 id. 339. But, even if the deceased had been formally suspended by the Grand Rapids branch, the acceptance of the back dues by the defendant and the International Association operated as a reinstatement of the deceased to membership. They thereby acknowledged that he was a member of the order, and entitled to be regarded as such, not for one but all purposes. The law does not favor forfeitures, and sometimes slight acts, with full knowledge o-f the facts, will he held to be a waiver sufficient to estop the setting up of the forfeiture as a defense. The authorities hold that where a member has done all he is required to do under the ■contract of insurance to entitle him to resolution to membership, or to vote upon the question o-f his restoration, he may not arbitrarily be refused re-admission. The courts will protect- his rights during his life, and those of his beneficiary after Lis death. Manson v. Grand Lodge, 30 Minn. 509; 16 N. W. 395; McDonald v. Supreme Council, 78 Cal. 49; 20 Pac. 41; Roeding v. Sons of Moses (Com. Pl), 11N. Y. Supp. 712; Hoffman v. Supreme Council, 35 Fed. 252; Marck v. Supreme Lodge, 29 id. 896. At the time of the death, On June 25, 1895, the deceased was therefore a member of the defendant in good standing, and ha.d been such for more than six. months at the time of his decease, within the meaning of the by-laws. The plaintiff in consequence became entitled to $150,' the full benefit allowed by the by-laws, and twarded by the judgment appealed from. The suspension or clearance certificate from the international body was not (according to the evidence of the defendant’s corresponding secretary) necessary to the admission of the deceased into the local lodge, and in this instance he was admitted four days before it bears date. The delays of the International Association or of the defendant could not prejudice the membership rights of the deceased, and do not constitute any defense to the demand for the full death benefits.

The defendant denies all liability, upon the ground that the action should be against the International Association, the grand lodge of the defendant, located at Boston. There is no force in this contention. The by-laws of the defendant are in the nature of a contract with the member thait on his death his wife, nearest of kin, or legatee shall be entitled to receive from it the amount agreed to be paid. Bac. Ben. Soc. § 90. Such meaning seeme to be consistent with the fair import of the words used, having reference to the purpose and object of the parties in entering into the agreement; and, as the language is that of the defendant, a construction ought not to be adopted which will defeat a recovery, if it is susceptible of a meaning which will permit one. The by-laws do not prescribe that the beneficiary shall have a claim against the International Association, nor point out the mean® by which he can enforce the obligation against it.

The defendant claims that, according to the custom of subordinate lodges, it receives the proofs of death, forwards them to the giand lodge, collect the death benefits, and pays them over to those entitled to them. The defendant received the proofis of death in this instance, and sent them on to the International Association at Boston; and there is evidence that the treasurer of the defendant had $150, the full benefit money, in his possession, to pay over. This certainly establishes a cause of action for the sum stated. Even if the defendant had not collected the money from the International Association, it was hound to prove in defense that it had made every effort to do so; for it could not lie by, and neglect to put in operation the means possessed by it to obtain the fund to which the plaintiff was entitled, and omit payment because of its own breach of duty. Fitzgerald v. Association (Com. Pl.), 5 N. Y. Supp. 837; Freeman v. Benefit Soc., 42 Hun, 252; Peck v. Association, 52 id. 255; 5 N. Y. Supp. 215; O’Brien v. Benefit Soc., 117 N. Y. 310; 27 St. Rep. 326; Cushman v. Society (Com. Pl.), 13 N. Y. Supp. 428; Hankinson v. Page, 12 Civ. Proc. Rep. 279, 288; Fulmer v. Association, 46 Hun, 678.

The judgment must be affirmed, with costs.

All concur.


author: BISCHOFF, J.

text:
    Barney McKay v. Buffalo Bill's Wild West Co.
    (Supreme Court, Appellate Term, First Department,
    July 27, 1896.)
    Master and servant—Fellow servants.
    Plaintiff, whose particular duty in defendant’s employ was to maintain order and discipline among defendant’s employes, "was a fellow servant of another employe whose position was that of watchman at the gates of defendant’s show grounds and claimed to have been injured through a fire caused hy a stone insecurely fastened. Held, that he could not recover, as the accident was the fault of a co-employee.
    Appeal from Eighth District Court.
    Action by Barney McKay against the Buffalo Bill’s Wild West Company to recover damages for the destruction of personal property by fire through the alleged negligence of defendant, hy whom plaintiff was employed. There was a judgment in favor of plaintiff, and defendant appeals.
    S. L. Samuels, for app’lt; James E. Brown, for resp’t.
   BISCHOFF, J.

The plaintiff complained of the loss of his personal effects hy a fire which occurred about noon of ¡November 30,1895, in a car forming part of the equipment of the defendant company’s itinerant show. The car was at the time stationary at the defendant’s grounds at Philadelphia, Pa., and was used for the lodging of some of the defendant’s employes,—the plaintiff, whose particular duty it was to maintain order and discipline among the occupants, and a number of men engaged to take part in the show. The interior of the car was arranged with berths on each side, leaving an aisle extending from end to end; and, to insure the comfort of the occupants during occasional inclement weather, the defendant had provided -an oil stove, which was about three feet in height, and supplied with iron props attached to and under the base in quadrangular position. When in use, the stove stood in the center of the aisle. At the time of the fire, the stove had been in use for a month or more, and was then in use. The fire was caused hy contact with the interior of the car of the ignited oil which had escaped by the overturning of the stove. T'he litigants, both conceding that its presence was known to all the occupants, and that the stove was plainly visible, varied in their explanations as to how it came to be overturned; the plaintiff’s version being that it was done by one MeDermott, then also in the defendant’s employ, as a watchman at the g*ates of the show grounds, in walking backward up to and against the stove, while conversing with others in the ear; the defendant’s, that the stove "was upset in a scuffle between McDermott and some others of the employes and occupants. It nowise appeared upon the trial that the stove was in anything but good order, that the place of its use was not ordinarily safe and free from the risk of fire, or that the defendant had been remiss in the selection of any of its employes. That the defendant did provide a means of enforcing order and discipline among its employes was apparent from the fact of the plaintiff’s employment for such purpose. From the record, therefore, we are forced to conclude that the defendant’s negligence was predicated of the fact alone that it had omitted to securely fasten the stove to the floor of the car, su'ch omission having been repeatedly alluded to by the plaintiff’s counsel.

We do not approve the conclusion of the court below. The plaintiff and the person or. persons who were directly responsible for the accident were engaged in the same general service, worked under the same master or control, and severally derived their authority and compensation from the same source. True, the plaintiff’s services differed in kind from McDermott’s, and both differed from the services of the other employes. But the plaintiff, McDermott, and each of such other employes co-operated to the same end,—the conduct and maintenance of the defendant’s business in and about which they were particularly employed. They were, therefore, fellow servants, each having assumed the risk of loss from the others’ careless conduct, as an accident of the employment, and no liability whatever attached to the defendant because of such conduct. Cooley, Torts (2d Ed.), 639; Thomp. Neg. 1026; 7 Am. & Eng. Enc. Law, 834.

That the fire was wholly caused by the carelessness of one or more of the plaintiff’s fellow servants was conclusive from the facts in evidence, whether the plaintiff’s or the defendant’s version of the happening of the accident be accepted as the correct one. It may be that, if the stove had been fastened to the flor of the car, the actual violence of McDermott’s impact therewith would -not have been sufficient to overturn it; but the fact remains that the accident did result from such impact, under circumstances which admitted of no inference that it was owing to anything but the disregard of ordinary care upon the part of one or more of the defendant’s servants and the plaintiff’s fellow servants. The master is held to the same degree of care to which his servants are held,—reasonable care, that degree of care which an ordinarily prudent person may be expected to exercise under the like circumstances. The defendant was not, therefore, required to ex■ercise extraordinary caution, and to resort to unusual means to avoid an accident. It had the right to assume that each of its servants would be ordinarily vigilant to avoid inflicting damage upon himself or upon his fellow servants. Hence negligence "upon the defendant’s part was not predicable of the fact merely that the accident might not have happened as it did if something that was omitted had been done. The test of negligence is not that the person charged therewith might have avoided the accident by a particular measure to that end, but that he either did what an ordinarily prudent person would have done, or did net do what an ordinarily prudent person would have done, under che like circumstances. Leonard v. Collins, 70 N. Y. 90. That He defendant was censurable in such a regard did not appear from the •evevidence in the record. Our conclusion to reverse the judgment for insufficiency of the evidence makes the discussion of other grounds urged for the appellant unnecessory.

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


author: LANDON, J.

text:
    Daniel Lynch et al. v. William Sanders.
    (Supreme Coprt, Appellate Division, Third Department,
    July 7, 1896.)
    Vendor, and purchaser—Bona ride purchaser.
    One who buys Ian." in the possession of a third person is chargeable with notice of such person’s rights.
    Appeal from special term, Essex county.
    Actions by Daniel Lynch and Henry C. Hoblee against William Sanders, and by William Moore against Taylor J. Eldridge. The complaint in each case was dismissed on the merits, and plaintiffs appeal. Judgment in first case reversed. Judgment in second case reversed in part.
    Nelson S. Spencer and J. S. L’Amoreaux, for app’lts; J. W. Houghton, for resp’ts.
   LANDON, J.

The controversy in each case is over a garnet mine. In the first case, if the mine is situate upon lot 59, Totten & Crossfield’s purchase, township 14, Pond’s survey, made in 1802, then the right to work the mine is in the plaintiffs under a license from the state. If, however, the mine is not upon lot 59, then it is upon lot 62, owned by the defendant, and holding title as the lot is described by said Pond’s survey. These lots adjoin each other, and the problem is to locate the boundary between them according to Pond’s survey. In the second case, if the mine is upon the east half of lot 57, in the same township, according to Pond’s survey, then the plaintiff has the right to work it. If not upon the east half of 57, it is on the west half of the lot, and the defendant has the right to work it, unless, for reasons ¡hereafter to he considered, the plaintiff has the right to the garnet on the west half of the lot. The determination of the westerly boundary of 57 will aid in fixing the boundary between the easterly and westerly halves of the lot, and the westerly boundary of 57, prolonged northerly, will give the boundary between lot. 59 and 62. The two cases were tried together, and may now-be considered together.

The exterior lines of the Fourteenth township of Totten & Crossfield’s patent were originally surveyed and indicated by marked trees in 1772 by Israel Thompson, and he platted upon a map the interior lots, 144 in all, some of which he surveyed. In 1802, John Ireland, having acquired title to the north half and the southeast quarter of the township, caused his three-quarters of the township to be surveyed by Benjamin Pond and subdivided into lote. The northerly central part of the township is rocky and mountainous, and Pond did. not locate the lot lines -of this portion upon the ground, but drew them on his map. The map then made by Pond and the field notes of his survey constitute-the “Pond’s survey,” referred to in the titles of the respective parties. This survey the plaintiffs produced in evidence. This.is the controlling survey in these cases. All other surveys, unless based upon Pond’s survey, or shown to correspond with it, are irrelevant. By Pond’s survey it appears that township 14 embraces a rectangular tract, 520 chains (or 6 1-2 miles) long from north to south, by 6 miles less 7 chains (or 473 chains) wide from east to west. The three-quarters of the township acquired by Ireland are divided into 108 lots, each 40 chains square, except those in the most westerly tier, which are 33 chains wide from east to» west, and those in the most northerly and southerly tiers, which the 60 chains long from north to south. Thus, all the lots, except thost next the north, south, and west sides, are mapped as being 40 chains square, each lot containing 140 acres. To this there is this exception: A branch of the Hudson river flows through the township, and the field notes show that some of the lots cut by the river take the river for a boundary, although laid down as squares upon the map.

Our examination results in the conviction that we must reverse these judgments. The main ground for this conclusion is that the testimony upon the part of the plaintiffs as to the boundaries in question tended to locate them according to Pond’s survey, while the testimony on the part of the defendants was not shown to do so, except incidentally. It tended to show that the defendants established a corner of a lot a mile and a half distant from the nearest lot in controversy, and ran a compass line according to an estimated course and distance to the lots in question without seeking to identify it upon the ground with the line so far as Pond established it on the ground. These are not cases where the surveyors contradict each other, but where they adopt different methods of finding the line, and each one tells the truth as to his methods and discoveries. Further discussion will be clearer by reference to the outlines of Pond’s map, a copy of which we insert:

Pond’s field notes, or such portions of them as were given in evidence, show that lie surveyed and marked upon the ground the boundary lines of some of the lots. We have shaded these lines heavily in red, It will be seen from the map thus shaded that the line between the fifth and sixth north and south tiers of lots is the fine sought. Pond located this line upon the ground from the south line of 53 and 68 to the north line of 57 and 63, thus giving the west boundary of 57. If this line is prolonged northerly, it will give the boundary between 59 and 62. The best way to determine this line is to find it on the ground, so far as it was marked upon the ground by Pond, and then prolong it in the same course between 59 and 62; for the line fixed by Pond upon the ground, as described in his field notes, is the line that he intended to draw upon his map, and, if there is any difference between them, the actual location is to be preferred to the theoretical one, since the actual location is the contemporaneous designation of his theoretical line.

The plaintiffs, by their surveyors, attempted to find this line. They first located the east line of the township, and the defendants concede that they did so accurately. They next sought the east and west center line, which the field notes refer to as the south line of 42 and 55, and the north line of 54. The field notes, as the shaded line indicates, show that Pond located this line from the eastern boundary of the township to the southwesterly corner of 73, a distance of 480 chains. The field notes show that the center line, and the corners of lost upon the center line, were indicated by marked trees. The evidence tending to show that the plaintiffs’ surveyors found, traced, and identified this center line, at least from the eastern boundary of the township to the southwest corner of lot 55, is very convincing. It was a line which one oE the surveyors, Mr. Morse, had traced many year; before. His father was a surveyor, the agent of Ireland for the sale of lots in the township, and, as such agent, had the custody of Pond’s survey from 1837 until his death in 1866, when the survey passed into the custody of this witness. The witness, with his father, had been over the line, and his father had pointed it out to him, especially the southwest corner of 55. Since his father’s death, he had traced it again. Mr. Morse assisted Mr. Colvin, the chief surveyor for the plaintiffs, and Mr. Colvin found some of the marke indicated by the field notes of Pond, and found corroboration of Morse’s statements in marked trees, corners, fences, and in courses and distances.

It is plain that, if the plaintiffs’ surveyors found the southwest corner of 55 as located by Pond’s survey, they found a point in the line sought, from which it was safe to proceed northerly. It appears from the field notes that the southwest comer of 55 is on. the center line, 24 chains west from the west bank of the Hudson, river. The plaintiffs’, surveyors located it 23 chains west of the west bank of the river, where Mr. Morse testified the corner was pointed out to him by his father, and 197.86 chains from the east line of the township, the survey calling for 200 chains. The location found is more favorable to the defendants by 2.14 chains than the survey calls for. From this point northerly the line seems to have been traced and identified, and, according to this line, the garnet mine in dispute between 59 and 62 was found to be upon 59, and the mine upon 57, upon the east half thereof. Mr. Ireland was the owner of these lands, and sold most of the lots on either side of the boundary, between the fifth and sixth north and south tiers of lots according to Pond’s survey. Presumably, therefore, the lines and corners of these lots, so far as they the marked upon the ground and acquiesced in by the adjoining-owners, are substantially the same as fixed by Mr. Pond. In the absence of evidence to the contrary, we may assume that they remain where they were originally placed. Evidence as to some of these lines and corners tending to corroborate the line as claimed by the plaintiffs. The plaintiffs adduced other corroborative evidence which we do not deem it important to dwell upon..

We will notice the survey upon which the defendants rely. Mr. Arnold was the principal surveyor. He did not have Pond’s survey, although lie had a map made bv Mr. Richards, which was a substantial copy of Pond’s map. He did not have a copy of Pond's field notes. He had a copy of Israel Thompson’s survey, made in 1772, including his field notes. Mr. Arnold seems to-have placed large reliance upon Thompson’s field notes. These make the township 480 chains wide, instead of 473 chains wide, as stated in Pond’s survey. Twelve years before, Mr. Arnold had measured from what he assumed to he the southeast corner-of the township, along a course which he assumed as its south boundary, 130.87 chains, to the east bank of the Hudson river, where it crosses such course or boundary. This point on the river bank he assumed as the starting point of his survey.. It is-distant in a straight line from the south line of the east and west tier of lots, in which lot 57 is situate, 4 1-2 miles, or 340 chains. He thence crossed the river upon the same conrse, 5.03 chains, to-the middle of the Indian Lake road, which follows the river for some distance, and ran a traverse line by various courses and distances t-o what was described by him as the north line of 68, and then located the northeast corner of 68, “a chain or two of (from) the river” on its west side, at a distance which he computed (not measured) to he 198 chains 67 links from the east line of the township, and from that point ran his line upon a compass conrse, north 25 degrees 45 minutes west, and thus established the line-sought far enough to the east to place the garnet mines upon the defendants’ lots. He passed the southwest corner of 55, 3.85-chains easterly of the corner as fixed by the plaintiffs’ surveyors. It is proper to state that he supports his line by reference to-marked trees and other measurements, but he ,did not have Pond’s-field notes, and made no effort to find the line as established by Mr. Pond.

It would not be useful to review the voluminous testimony adduced by the respective parties in support of their respective lines. The plaintiffs’ theory of the case was right, namely, to find and designate the boundary line as fixed by Pond’s survey ; and from the evidence it is apparent that it is practicable to do this. The defendants’ theory was to locate a line on a fixed course and distance from the northeast corner of lot 68, a corner not ascertained from Pond’s survey, and not shown to be the same as designated by it. Pond’s field notes describe the four lots which have this comer in common. It would be proper, according to Pond’s field notes.

It is true that the burden was upon the plaintiffs to establish the line claimed by them, and the weakness of the defendants’ proofs does not assist them in making a prima facie ease, though it may in defending it after it is first made out. It is plain that the court gave an effect to the defendants’ plan to which it was not entitled. The plaintiffs made various requests to find, notably the twelfth, thirteenth, and fourteenth in Moore v, Eldridge,, and the eleventh, twelfth, and "thirteenth in the other case, which, as the practice then was, they were apparently entitled to have found in their favor.

It follows that the judgment in Lynch v. Sanders should be reversed, and a new trial granted, costs to abide the event.

In Moore v. Eldridge, the plaintiff, in addition to his conceded right to the garnet in the east half of lost 57, also claimed the right to mine all the garnet upon the west half, east of Racquette brook. Mrs. Connors was the owner of the west half of lot 57, and she agreed, in consideration of ten dollars, with Wood and Shields, under whom the plaintiff claims, to convey to them a right of way from the highway across the west half of the lot to the east half. Wood and Shields caused the -deed for the right of way to be prepared, and to be inserted therein a clause giving them the right to mine the garnet on the west half of 57, east of Racquette brook, and by deceit procured Mrs. Connors to execute such deed, without her knowing that it contained the clause conveying the garnet. This she did in May, 1890. Wood and Shields recorded this conveyance in June, 1890. Wood and Shields sold the interest thus acquired from Mrs. Connors to the plaintiff, April 13,1891, for $500, but at the time of this sale the defendant’s principals were in possession of the mine, claiming-under Mrs. Connors, and the plaintiff withheld, by agreement with Shields and Wood, $300 of the purchase money until he-should obtain possession. Mrs. Connors subsequently sold the-right to mine the garnet upon her west half of the lot to the defendant’s- principals. The court found these facts upon the evidence, and also that the plaintiff was not a bona fide purchaser of the garnet upon the west half of the lot, east of Banquette brook, and held that so much of the deed as conveyed the garnet on the west half of 57 was void, -and such is one of the decrees of the judgment.

We are satisfied that the fraud was established, and that, if Mrs. Connors had been a party to the action, she would have been entitled to a reformation of the deed limiting the grant to the right of way, without offering to restore the ten dollars consideration. The defendant is in under Mrs. Connors, and therefore can make the same equitable defense that she could make. Crary v. Goodman, 15 N. Y. 266; Webster v. Bond, 9 Hun, 437. This cause of action is in the nature of ejectment, and, if Mrs. Connors had an equitable title, or has an equitable defense, she transferred the same to the defendant, so far as he neede them for his defense. Ho affirmative relief is necessary. The defendant is based upon Mm. Connors’ deed to plaintiff’s grantors of the gar-merely seeks to defeat the plaintiffs’ cause of action, so for as it net on the west half of the lot, east of Racquette brook. The judgment declaring the deed void is only operative to protect the defendant.

The judgment in Moore v. Eldridge is reversed as to that portion thereof relating, to the east half of lot 57, and a new trial granted, and as to the west half affirmed, without costs of the appeal. All other costs to abide the event.

HERRICK and PUTNAM, JJ., concur. MERWIN, J., dissents.