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    Augustus Frank and Lauren C. Woodruff, Survivors, Etc., as Trustees, Resp’t, v. The New York, Lake Erie and Western R. R. Co., Impleaded with Others, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Lease of a railroad—Assignment—Sub-lease—Difference.
    The plaintiff Woodruff leased a certain railroad. By the teims of the covenant in the lease, he undertook to pay the interest on certain bonds as it accrued, and the principal at maturity. Woodruff leased said railroad to the Erie railroad company, and by the lease to them he conveyed the entire term and all the rights he had taken by the lease to him, and that company agreed to perform all the obligations he had assumed. Although this was not put in the form of an assignment of the lease and term, the legal effect was the same, as it embraced all that he had acquired from the original lessor Held, that this fact distinguished it from a sub-lease, and that the Erie railroad company became liable as upon the covenants of thqoriginal lease to pay what they required. Ganson v Tifft, 71 N. Y., 49, distinguished.
    2. Same—What will work an assignment—Liability—Evidence.
    The said lease, with all its rights, passed to the receiver appointed in proceeding taken to foreclose a mortgage on the Erie railroad And, although it was not included in the sale on the judgment, if the receiver afterward, in execution of an order of the court, therein transferred the lease to the defendant company, and it accepted such transfer, it would be charged with the relation of assignee.
    3. Same—When possession is presumed to be as assignee—Estoppel.
    The fact unexplained that the defendant company was in the actual possession of this leased road, would permit the inference that it had such possession as assignee, or held it in such manner as to charge the company with liability for the stipulated rent. But no estoppel would apply to defeat the right of the company to show that it was not in possession as. assignee of the outstanding lease
    4. Same—Validity of—Must be in writing
    The insolvency of the party to whom a lease is assigned does not affect the validity thereof. A valid transfer of the lease in question required a. written assignment of it to the defendant company.
    5. Same—Liability of one who occupies and uses leased premises.
    The defendant company went into the possession and operation of the road at a specified time. In doing so it assumed the obligation to pay rent while it continued. And until this liability was qualified by some effectual arrangement it was for the same amount of rent as that of the lessee or assignee from whom such possession was derived,
    6. Same—Liability of assignee of lessee to lessor—No privity of.
    There is no privity of contract between a lessor and an assignee, merely as such, of a lease. A privity of estate only arises out of that relation between them, and that may at any time be terminated or destroyed by means of transfer by the assignee. The assignee’s liability to the lessor is in the fact that the covenants of the lessee run with the land, and by means of the privity of estate thus produced such, liability accompanies the lease and burdens the title by which it is held.
    7. Same—Relation between lessor and lessee—How terminated.
    The relation between the lessor and lessee is that of privity of contract as well as estate, and the lessee cannot therefore terminate his liability by assignment of the lease.

      8. Contract—When there is a privity of contract.
    The legal right of a party to assert that the performance of a contract, made between two others for his benefit, cannot be revoked or modified without his consent, rests in the fact of an express promise on the part of the person whom he seeks to charge, and thus arises a privity of contract.
    Appeal from judgment entered on decision of Livingston special term.
    The action is brought to foreclose a trust deed in the nature of a mortgage, made by the defendant, The Erie and Genesee Valley Bailroad Company, to the plaintiffs and Le Grand Lockwood, as trustees, to secure the payment of the bonds of that company to the amount of $120,000. The mortgage covered all the property of the company, consisting of a railroad from Dansville to Mt. Morris, in the county of Livingston, and all lands and structures connected with it, and all its rights, privileges and franchises. The company was organized in 1868. The mortgage bears date June 20, 1871. And the complaint alleges that on or about that day the company made its negotiable bonds of the same date, amounting to $120,000, payable to the trustees or bearer July 1, 1886, and interest at the rate of seven per cent per annum, payable semiannually on the first days of January and July; that the bonds were for a valuable consideration delivered to persons who became the owners thereof; that default was made in the payment of the interest which became due July 1,1875, and semi-annually thereafter; that on the first day of September, 1871, the Erie and Genesee Valley Bailroad Company leased to Lauren C Woodruff all its property, rights, and privileges for the full unexpired term of its charter, and for the term of any renewals thereof, and that amongst other things Woodruff agreed to operate the railroad, pay the interest in the bonded debt of $120,000, and at maturity pay it or provide for its renewal, pay taxes, etc.; that on September 8, 1871, Woodruff leased the railroad property to the Erie Bailway Company, by agreement containing like provisions and undertaking on the part of the com - pany similar to that on his part in the lease to him; that the Erie Bailway Company took possession of and operated the road until in 1875, when a receiver appointed of its property went into possession, and operated it until after a judicial sale of the property of the latter company, and the organization of the New York, Lake Erie and Western Bailroad Company, when the latter company “took to itself the possession, occupation, control and operation ” of the railroad in question; that the receiver did not pay, nor has the N. Y., L. E. and W. B. B. Co. paid any rents to the lessors or to the plaintiff, but have refused to do so; that the trustee Lockwood died in 1873. And amongst the relief demanded is, that in case of deficiency, the Erie Railway Company, the N. Y., L. E. and W. R. R. Co. and Wood-ruff be adjudged to pay it.
    The N. Y. L. E. and W. R. R. Co. answers, and so do the E. and G. V. R. R. Co. and Woodruff.
    The latter demands judgment that the N. Y., L. E. and W. R. R. Co. and the Erie Railway Co. be required to perform the covenants of the lease before referred to.
    The trial court found and determined that as between the E. and G. Y. R. R. Co. and the N. Y., L. E. and W. R. R. Co., the latter was liable for the accrued interest on bonds, amounting at the time of the decision to $84,000, and for such interest as should thereafter accrue while it continues in the possession of the road;, that as between those two companies and Woodruff, it is primarily liable as principal debtor for the payment of the entire principal of the bonds maturing July 1, 1886, and directed judgment, which was entered, by which it was, amongst other things, adjudged that the N. Y., L. E. and W. R. R. Co. should be charged with any deficiency arising from the sale, with costs.
    The N. Y., L. E. and W. R. R. Co. appeals.

      E. C. Sprague, for app’lt; James Wood and Charles J. Bissell, for resp’ts; Lucius N. Bangs, for resp’t Woodruff, individually.
   Bradley, J.

The question presented is whether the appellant, the New York, Lake Erie and Western Railroad Railroad Company, is to any, and what, extent hable to the plaintiffs for the unpaid interest accrued upon the bonds of the Erie and Genesee Yalley Railroad Company, secured by the mortgage in question, and for the principal of such bonds.

This liability depends npon the existence of some relation assumed by the appellant to the lease made by the E. and G. V. R. R. Co., or to the estate or term conveyed by it, which charges the appellant with the performance of its covenants to pay in behalf of the holders of the bonds represented by the plaintiffs.

By the terms of the covenants in the lease to Woodruff, he undertook to pay the interest as it accrued and the principal at maturity. And by his lease to the Erie railway company he conveyed the entire term and all the rights he had taken by the lease to him, and that company agreed to perform all the obligations he had assumed. And although this was not put in the form of an assignment of the lease and term by Woodruff to the Erie railway company, the legal effect was the same as it embraced all that he had acquired from the original lessor. Stewart v. Long Island, R. R. Co., 102 N. Y., 601; 2 N. Y. State Rep., 557. This fact distinguishes it from the effect of a sub-lease as such, and, therefore, the case of Ganson v. Tifft (71 N. Y., 48), cited by counsel, is not applicable to the situation here.

The Erie railway company, therefore., became liable as upon the covenants of the original lease to pay what they required assuming that it was valid.

And that company did pay the interest upon the bonds up to the first day of January, 1875.

The transactions following that time, and their effect as relates to the road in question, and to the relations assumed to the covenants in the lease, constitute the matters for consideration. Early in 1875 an action was brought by the attorney general in behalf of the people against the Erie railway company, its directors and others, to dissolve the corporation and for the usual relief in such cases, amongst which was that a receiver be appointed of its property. And in May, 1875, Hugh J. Jewett, who was president of the company, was appointed in that action receiver of all its property, and vested with ample power to continue the operation of the railroads of the company; and later in the month his powers were enlarged by an order of the court, by which, amongst other things, he was authorized in tlie exercise of a sound discretion to pay rent due and to become due under any leases held by the Erie railway company, but he was not required to “adopt and confirm any such leases that upon due inquiry he shall find not to be advantageous to all parties interested.”

In June, 1875, an action was brought by the Farmer’s Loan and Trust Company to foreclose a mortgage made by the Erie Eailway Company to it, as trustee, of date February 4, 1874, to secure the payment of $40,000,000 of its bonds, of which $25,000,000 had been issued; upon which the company was in default in payment of interest. This mortgage covered all the railways of the Erie Eailway Company, and all its rights and franchises, which seem to embrace the estate and rights of the company under the Woodruff lease. The same person was appointed receiver in that action on June 15, 1875, of all the property covered by that mortgage. And he assumed the possession and operation of the railroads and property, including that in question.

By the judgment of foreclosure, and for the sale of the mortgaged property entered November 7, 1877, it was ad judged that " ‘ the plaintiff shall be at liberty to abandon and disclaim at any time before the sale any leasehold estates or interests embraced and included in the mortgage not deemed to be valuable, by giving notice of such aban - donment and disclaimer to the referee m "writing, and the referee shall not expose the leasehold estates and interests so abandoned and disclaimed for sale as part of the mortgaged premises.”

The sale was made April 24, 1878, and it appears by the referee’s report of sale that certain leases, including the. Woodruff lease, were not embraced in the property sold, and that it was by him distinctly announced that they would not be included in the sale, or the estates and interests purporting to be created by them. It also appears by the terms of sale furnished by the referee before it took, place, and by him subscribed, that the property to be sold will consist of the mortgaged property, described as in the mortgage, ‘ ‘ excepting therefrom such portions thereof as-will be declared excepted at the time and place of sale.”

The report of sale was confirmed. And the deed made, by the referee to the purchasers, pursuant to the sale and. of date April 26," 1878, contains the exception from the conveyance of the Woodruff lease, and the certain leases appearing by the report of sale not to have been included in the sale as made. And they are in like manner excepted in the conveyance by the purchasers to the New York, Lake Erie and Wester n Railroad Company, of date April 27, 1878.

The transaction of the sale and the conveyance made pursuant to it to the purchasers, as represented by the report of sale and the deéd. establish the fact that the lease in question was rrot included in such sale and conveyance, nor did it pass by the terms of the deed to the N. Y., L. E. and W. R. R. Co. And inasmuch as all the interest and estate of the Erie Railway Company in the E. and G-. V. R. R. were represented by this lease, it is difficult to see how any estate under it could pass by an instrument wdrich excepted the lease from its operation as a transfer or conveyance. It is said on the part of the plaintiffs that the sale was made to the purchasers pursuant to a scheme for reorganization or reconstruction, by which it was contemplated the company to be organized would practically become the successor of the Erie Railway Company and take property, rights and franchises of which it was possessed; and it is contended that notwithstanding the form given to the sale and the conveyances following it, the term or estate of that company given by the Woodruff lease came within the purpose and intent of the sale and conveyances, and therefore, passed by them, and the appellant was charged as assignee of the lease. And such seems to have been the view of the trial court.

It is true that a plan for the organization of a company was adopted and approved by the order of the court, and the receiver was authorized, so far as consistent with his duties, to aid in its accomplishment. The judgment was directed and the sale and purchase made with a view to such reorganization.

And the purchase committee, or trustees, to whom the sale was made, associated with themselves others in the certificate of incorporation, and the appellant was incor ated on the 27th day of April. 1878, pursuant to Laws of 1874, chap. 430, as amended by Laws of 1876, chap. 466. And we think that for the purposes of this action the appellant company must be deemed a new company and a distinct organization from the Erie railway company.

The right given by the terms of the judgment to abandon, disclaim and except from the sale of the mortgaged property certain 'leasehold estates and interests, evidently was designed to relieve the new organization from the burden of such of them as were not deemed valuable. And so far as that provision of the judgment was carried out in the manner prescribed, it must, for the purposes of this action, be deemed effectual. That it was so done is evidenced by the order of confirmation of the report of sale. The conclusion seems to follow that the leasehold interest in question did not pass by the judicial sale to the purchasers, nor by the deed of the latter to the appellant. It is, however, contended that the leasehold estate was subsequently transferred by the receiver, by virtue of his power as such, to the N. Y. L. E. and W. R. R. Co., and accepted by the company. And reference is made to the petition of the receiver of date May 3, 1878, in which, amongst other things, he pravs that if the court shall be of the opinion that it is safe, proper' and judicious for him to do so, he “may he authorized and directed to transfer, surrender and deliver to the said New York, Lake Erie and Western Railroad Company all the property and franchises in his hands and under his control,” subject to certain reservations not important upon the question under consideration; and to the order of the court of the same state, by which it was ordered that the “receiver do transfer, deliver and surrento the said New York, Lake Erie and Western Railroad Company all the property and franchises whereof he is now possessed as receiver * * * and which were embraced in the judgment of foreclosure, ” subject to the reservations specified in the petition.

This language in both these documents is quite unequivocal, and broad enough to embrace the subject of the lease in question, which he then held as receiver. And in this petition he recites the proceedings had in the two actions, and says that, in pursuance of the judgment in the Farmers Loan and Trust Company action, all and singular the mortgaged premises were sold as therein directed by the referee, “and on such sale the same and every part thereof were purchased” by the trustees. While this statement does not appear to be in accordance with the fact, it may have been within his understanding, and it is in harmony with the prayer of the petition and the order thereupon made by the court. No transfer appears prior to June 1, 1878, when it appears, by a receipt of the appellant, that it received that day of the receiver, pursuant to the order of May 3, 1878, all the property mentioned as being in the judgment and enumerated in the referee’s report of sale thereunder, and necessary to the use, management and maintenance of the railroad, being the property thereof purchased by the trustees “for the use, benefit and behoof of the New York, Lake Erie and Western Railroad Company,” excepting certain properties to which it is not now necessary to refer. This receipt in the view taken of the sale does not necessarily embrace the Woodruff lease. On the 18th day of July, 1878,' the receiver made to the appellant a transfer of various executory contracts specifically mentioned. This instrument purports to have been made pursuant to the judgment of foreclosure, and states that the appellant has assumed such contracts. It does not embrace the lease in question. By an instrument, addressed to the hoard of directors of the New York, Lake Erie and Western Railroad Company, of date December 4, 1879, the receiver makes his final transfer to that company, in which he refers to his petition of May 3, 1878, and the order of same date directing the transfer, also to a transfer and surrender on the 1st day of June, 1878, and adds: “I now propose to, and herewith do, transfer to your company all of the property of the Erie railway company, real and personal, remaining in my hands, as receiver, not heretofore transferred and surrendered to you above recited, in order that you may become completely possessed of all the property of the Erie railway company, which was sold under foreclosure and which became vested in you by such sale, and the subsequent conveyances and assignments above referred to.” And by order of the 30th of December, 1879, entitled in both actions, all the accounts, acts, doings and transactions of the receiver, in the actions to and including the 5th day of December, 1879, were “fully approved by the court and declared to be final and binding upon,all parties in interest;” and he was discharged from liability or from any accounting to and including the 5th day of December, 1879. This order was made upon the report of a, referee who had been appointed to examine the accounts and transactions of the receiver. This report was dated December 30, 1879, and purported to contain a statement of the accounts of the receiver and various transactions from and including the sale upon the judgment of foreclosure; and amongst other things it stated that the railways and all the other property and assets of the Erie Railway Company were sold to and purchased by the trustees before mentioned, and that the conveyances were made to them and by them to the appellant accordingly; that the latter claimed that under the judgment of foreclosure and sale, purchase and transfer made by the purchasers to it, that it was entitled to, and should receive from the receiver a transfer and delivery of all the railroads and property in his possession, and requested him to make such surrender; that thereupon the petition and order of May 3, 1878, before referred to, were made; that on June 1, 1878, the receiver transferred and surrendered to the N. Y., L. E. and W. R. R. Co. the said railroad of the Erie Railway Company, its equipment and all property appurtenant thereto and convenient for its use and operation, and took from the company the acknowledgment of the receipt of the property, as before mentioned; that “as of the 26th day of July, 1878, m pursuance of the requirement of said judgment, the said Hugh J. Jewett reassigned to the Erie Railway Company such of the said executory contracts of the last named company as the said New York, Lake Erie and Western Railroad Company had elected not to receive, and assume the liabilities thereof,” a copy of which reassignment was referred to as an exhibit attached to the report.

And in the final judgment entered in the people’s action, November 25, 1879, also referred to in such report of the referee, it was amongst other things adjudged that the sale under the judgment of foreclosure m the Farmer’s Loan and Trust Company action, and the conveyances and assignments made by the referee pursuant to such sale to the purchasers, and by them to the N. Y., L. E. and W. R. Co., did vest in that company “a good and valid title to all the property of every kind and description embraced and described in the said judgment and in the several conveyances and assignments. These various papers and records, and the expressions in the report of the referee and elsewhere relating to the effect and extent of the judicial sale and the conveyances and transfers of the property of the Erie Railway Company, are thus quite specifically referred to, because they are treated by counsel as important, and in view of the fact that the appellant took possession of and operated the railroad in question, it is contended that they go to establish the proposition that the appellant took the rights and assumed the obligations of assignee of the Woodruff lease and of the term or estate created by it. And reference is also made to a conveyance of date June 2, 1879, made by the receiver pursuant and in obedience to a decree of the court of chancery of the state of New Jersey, containing words purporting to convey all the property of ■ the Erie Railway Company to the appellant, but it is evi- • dent that it had relation only to the property within the jurisdiction of that court, and did not embrace any leasehold interests in the state of New York.

This lease, with all the rights it furnished, being covered by the mortgage foreclosed, passed to the receiver by force of his appointment and of the powers vested in him, and by the_ conveyance and transfer which, by the judgment, the Erie Railway Company was directed to make to him. And although this lease was not included in the sale on the judgment, yet it may be assumed that if the receiver after-wards, in execution of the order of May 3, 1878, transferred the lease to the appellant, and it accepted such transfer, it would be charged with the relation of assignee.

The fact, unexplained, that the company was in the actual possession of this leased road would permit the inference that it had such possession as assignee, or held it in such manner as to charge the company with liability for the stipulated rent. Armstrong v. Wheeler, 9 Cow., 89; Bedford v. Terhune, 30 N. Y., 453; Carter v. Hammett, 18 Barb., 608.

But no estoppel applies in such case to defeat the right of a party so in possession to show that he is not assignee of the outstanding lease. Quackenboss v. Clark, 12 Wend., 555.

It is contended on the part of the appellant that it had and assumed no rights or ha bility other than such as arose from mere possession. And in connection with the fact that the lease was not included in the judicial sale, reference is made to that portion of the foreclosure judgment which provides that the purchasers “ shall not be required to assume any contracts entered into before the appointment of the receiver, and all such contracts not so assumed by such purchaser or purchasers shall be re-assigned by the receiver to the defendant company” (the Erie railway company). And it appears that by ah instrument of date July 26, 1878, the receiver, referring to the portion last inferred to of the judgment, recites that the purchasers and their successors and assigns, the New York, Lake Erie and Westery Railroad Company, have not assumed, but have injected and refused to assume certain specified executory contracts amongst which is this Woodruff lease, and he re-assigns them to the Erie railway company

This is the re-assignment- referred to in the report of the referee as before mentioned, which report was confirmed by the order of the court of December 30, 1879, made in both actions.

Under the circumstances stated in the instrument of assignment, this re-assignment was provided for by the judgment, and, assuming that it had not before been transferred to the appellant company, this act of the receiver came within the power vested in him. The receiver was the instrument of the court, and it might extend or qualify his power in respect to the property of the insolvent corporation. And no reason appears why the reassignment by the receiver to the Erie railway company, under the direction of the court, may not have been effectual to divest him of the title of the lease as receiver in the Farmers Loan and Trust Company action.

And this assignment to the Erie railway company, afterward, had the approval and confirmation of the court by an order in both that and the Peoples’ action. The final judgment in the last named action is not entirely consistent with such order.

But it may be observed that those two actions were distinct; that the New York, Lake Erie and Western Railroad Company was not a party to either of them, and that all the rights of property were derived from the proceedings in the Farmers Loan and Trust Company action.

The appellant company does not appear to have been a moving party in any sense, for the order of May 3, 1878. And it must be deemed to have been made subject to the rights reserved in the judgment, and therefore did not have the effect to vest title in that company to the property not, embraced within the sale upon the judgment or to the contracts, which the purchasers or their assigns had the right to decline to assume.

There are some circumstances appearing which may have furnished a reason for the provision of the judgment allowing abandonment of some of the mortgaged property and its exclusion from the sale, as applied to this lease, and why the purchaser and the appellant company may not have wished or intended to take it. In February, 1876, the receiver by letter advised Woodruff that he could give no assurances of the early payment of the interest on the bonds of the E. and G. V. R. R. Co.; that it was unreasonable to suppose the parties in interest would consent to operate the road at a loss of §30,000 annually. In May, 1876, the receiver was advised by the opinion of his counsel to the effect that the lease of that company to Woodruff was ultra vires, and that he could not transfer it to the Erie Railway Company. From that time the receiver insisted that he was not liable under the contract. And Woodruff, on his attention being called to it, expressed his belief that such opinion of counsel was sound, and that it settled the question of liability. These circumstances have no importance except as they may throw some light upon, the reason and purpose for the exclusion of the lease from the sale and transfer.

And in respect to the question of the possession of the railroad covered by the lease, it may be observed that Jewett was the president of the Erie Railway Company up to the time he was appointed receiver; that he continued the operation of it as such, and that on the organization of the new company he became its president, and the operation of the road was in like manner continued. During the period within which these changes of administration occurred, the management was continuous and practically under one and the same head. And the road in question constituted the smaller part of a line of road operated during the sanie time.

This situation may also be treated as a circumstance bearing upon the reason for the possession and operation of the road by the appellant company without having taken any assignment of the lease.

So far as the fact could be represented by the statement of the receiver in his instrument of re-assignment to the Erie railway company and by the order of the court confirming it, it does appear that the appellant company refused to assume the obligation of the lease and that the reassignment was made as directed by the judgment. The insolvency of the Erie railway company has no particular-importance upon the question of the validity and effect of such re-assignment. Taylor v. Shum, 1 Bos. & Pull., 21; LeKeux v. Nash, 2 Stra., 1221; Pitcher v. Tovey, 1 Salk., 81; Johnson v. Sherman, 15 Cal., 287. S. C., 76 Am. Rep., 481; Childs v. Clark, 3 Barb. Ch., 52.

A valid transfer of the lease required a written assignment of it to the appellant company. 2 R. S., 135, §§ 6, 8; Bedford v. Terhune, 30 N. Y., 459.

That company went into the possession and operation of the road about the 1st of June, 1878, and in doing so it assumed the obligation to pay rent while it continued. Carter v. Hammett, 18 Barb., 608. And until this liability is. qualified by some effectual arrangement, it is for the same-amount of rent as that of the lessee or assignee from whom such possession is derived.

The obligation of the Erie Railway Company was to pay as rental the interest upon the bonds of the E. and G-. V. R. R. Co., and such, we think the burdenassumed by the appellant-company, while its possession and liability remained unqualified to pay rent. This was the situation of the company until July 1, 1879. The question arises whether from and after that time it was relieved in character or measure, of liability to any, and what, extent to pay the rent.

On the 14th day of May, 1879, the appellant addressed a notice to the president and board of directors of the E. and G. V. R. R. Co., and to Woodruff, stating, amongst other things, that the N. Y., L. E. and W. R. R. Co. “acquired no interest in this property, but merely succeeded to the possession of the receiver. It has since continued the possession and operation cf the road for the public accommodation, but also at a large loss;” that the company is no longer willing to continue at a loss to itself; and that it will cease to operate the road on the 1st day of July, 1879. This notice was received by the E. and G. V. R R. Co., and by Wood-ruff, about the time of its date.

On June 30,1879, a proposition was made by the appellant company to the E. and G. V. R. R. Co. and Woodruff, that at their request, and upon their assent being signified, the company would continue to operate the road as theretofore, “ notwithstanding the surrender of the same on the 1st day of July, 1879,” as proposed in the before mentioned notice, upon the terms and conditions that the road shall be operated as long as the parties shall consent to its operation under the proposal, but either party may terminate it by written notice of withdrawal from the proposal, by which it was expressly understood that so long as the road is run under the proposal, the appellant company should pay the expense of running it, but that it should not be compelled to pay any rent for the use of it; that no obligation was to be implied by the execution of the proposal, the assent to it, nor shall they be construed so as to affect any of the legal rights of any of the parties thereto, as the same should exist on July 1, 1879. Woodruff requested the N. Y , L. E. and W. R. R. Co., to continue to operate the road after July 1, 1879, pursuant to such proposition, to the terms of which he assented, provided the E. and G. V. R. R. Co. assented to the same.

On July 5, 1879, at a meeting of the board of directors of the E. and G. V. R. R. Co., such proposition, with Wood-ruff’s assent thereto, was presented, and it was resolved that the company assent to the terms of the proposition, and request the N. Y., L. E. and W. R. R. Co. to operate the road after the first day of July, 1879, pursuant to it, and that the proposition be submitted to the attorney of the company. And on the receipt of a communication from such attorney which is embraced in the proceedings, it was further resolved, “that the company desires to have its road operated in the future as in the past, * * and that it will assent to any arrangement made by Mr. Woodruff having that end in view, that will not conflict with or change the rights or obligations of Mr. Woodruff and this company respectively under the contract between them, bearing date November 1, 1871,” and directed that a copy of the resolutions be sent to the appellant company. The last named company on July 8, 1879, addressed to the E. and G. V R. R Co. and Woodruff a notice that it would continue to operate the road during the month of July, if desired by them, on the terms mentioned in the proposal of the company and request and assent of Woodruff before mentioned, but that unless some permanent arrangement should be made by the first of August, the company would “withdraw its trains absolutely on that day.”

On July 80, 1879, Woodruff addressed and made to the N. Y.., L E. and W. R. R. Co. an agreement subscribed by him, to the effect that in consideration that the company would not take its trains off the road of the E. and G. V. R. R. Co. on August first, but would continue to operate the same until September first, pending negotiations as to the permanent operation of it, he agreed that the company should have the right to operate it during the month of August free of any rental or obligation to pay any sum whatever for the use of the road during the month"of August. And on January 24, 1880, he agreed that the same terms should continue in force from the 1st day of September, 1879, until May 15, 1880. And on May 12, 1880, he made a further agreement to extend them until September 15, 1880. And on October 5, 1880, a like agreement to extend the same terms until May 15, 1881. And at a meeting of the board of directors of the E. and G. V. R. R. Co., held August 25, 1879, it was resolved that a committee be appointed to confer for purposes mentioned; and that in the meantime the N. Y., L. E. and W. R. R. Co. be requested to continue the operation of the road as theretofore operated, without liabilty to the E. and G. V. R. R. Co., for its use until such conference can be had and a settlement or compromise effected, with a view to avoid further litigation, etc. These facts go to modify the apparent liability of the appellant company to pay rent from and after July 1, 1879, if it was within the power of the E. and G. V. R. R. Co. and Woodruff to do so. We think they had the power to effectually make such arrangement with the appellant company, whatever view may; be taken of the question whether the company was assignee of the lease or of the estate represented by it. There is no privity of contract between a lessor and an assignee, merely as such, of a lease.

A privity of estate only arises out of that relation between them, and that may at any time be terminated or destroyed by means of transfer by the assignee. 1 Washb. Real. Pro, marg. p. 331; Paul v. Nurse, 8 B. & C., 486; Grundin v. Carter, 99 Mass., 16; Walton v. Cronly, 14 Wendell, 64-5; Childs v. Clark, 3 Barb. Ch., 52; Tate v. McCormack, 23 Hun, 218; Johnson v. Sherman, supra.

The relation between the lessor and lessee is that of privity of contract as well as estate, and the lessee cannot, therefore, terminate his liability by assignment of the lease.

In the former case there is no promise of the assignee, and no personal confidence founded upon any contract with him, but his liability to the lessor, is in the fact that the covenants of the lessee run with the the land, and by means of the privity of estate thus produced such liability acccompanies the lease and burdens the title by which it is held.

This relation exists wholly between the lessor and his as signs and the assignee, with the implied covenant in behalf of the lessee that his and each successive assignee will indemnify him against liability for breaches occurring during the continuance of his relation as assignee. Moule v. Garrett, L. R., 5 Exch., 132; affirmed, 7 id., 101. S. C., 1 Moak., 207.

If it be assumed that the liability of an assignee of the lease in question would enure to the benefit of the plaintiffs and might be made available to them as the representatives or trustees of the bondholders, they had no claim upon such liability of an assignee who had made no express covenant which could defeat his right to terminate his relation at pleasure by transfer or relinquishment of his interest. No contract relation in such case could arise between the assignee and the plaintiffs which would interrupt the making of an effectual arrangement between him on the one part and the lessor and lessee on the other part, modifying or qualifying his liability as assignee.

The legal right of a party to assert that the performance of a contract made between two others for his benefit cannot be revoked or modified without his consent rests in the fact of an express promise on the part of the person wdiom he seeks to charge, and thus arises a privity of contract. Such is the doctrine of Lawrence v. Fox (20 N. Y., 268), and kindred cases. And the courts are disinclined to extend the rule beyond the principle adopted in that case. Barlow v. Myers, 64 N. Y., 43; Vrooman v. Turner, 69 id., 280.

The evidence fairly requires the conclusion that the appellant company having concluded to discontinue the possession and operation of this road, was induced by an agreement between it and the lessor to continue operating it upon terms which essentially modified its liability to pay rent. How long that arrangement continued, or when, if ever, it was terminated, we are not advised. If these views are correct, the conclusion of the trial court in respect td the liability of the appellant for rent, and for any deficiency which might arise from the sale upon the judgment in this action, was error, and the exceptions were well taken to-such conclusions.

The views finally reached render it unnecessary to express any further opinion, or definitely determine the question whether the appellant company at any time took the-relation of assignee of the lease or term granted by it.

The further question has relation to the amount with which the appellant company may be charged in this action, upon the facts presented by the evidence.

The receiver was hable as such for the rents which accrued during the time he had the possessian of the road. Woodruff v. The Erie Railway Co, 93 N. Y., 609.

The judgment in The Farmer’s Loan and Trust Company action required that the_ purchasers at the sale should assume the indebtedness incurred by him and indemnify him against liability thereon. And the deed to the purchasers, and by them to the appellant, contained like provisions, by which the liability, of the latter for the amount of such rent is established. The complaint does not contain any distinct allegations upon the covenant in the deed to the company, but we think m view of the allegations and claim made against it in the complaint, and the circumstances of the trial, the liability of the company to pay may be determined in this action.

And it may also be charged with liability for rent from the time it took possession of the road up to July 1, 1879. And in the view taken, the evidence does not for the purposes of this action on behalf of the plaintiff support the claim for any further liability.

This conclusion is reached and announced without prejudice to the right of any party entitled thereto to require the appellant to account for and pay any such rent as it may be liable to pay, for and on account of the possession and operation of the road after the 1st day of July, 1879.

The discussion by counsel has taken a wide range, and by it considerations are ably presented which we think are not available in this action; whatever use and application may be made of them in another action, having in view investigation and relief not deemed pertinent or available in this action.

The judgment should be so modified as to limit the liability of the N. Y. L. E. and W. R. R. Co. for deficiency to a sum equal to the amount of interest upon the bonds of the E. and G. V. R. R. Co., from the 1st day of January, 1875, to thelst day of July, 1879, with interest upon the several installments thereof from the time they respectively became due, that is to say, $37,800, with interest as before mentioned; and, as so modified, affirmed without costs of this appeal to any party, unless the plaintiffs elect to take a new trial, and in that event judgment be reversed and a new trial granted; costs to abide the event.

Haight, Angle and Childs, JJ., concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Martha S. Bond as Administratrix, etc., of Martin W. Bond, Deceased, Resp’t, v. Edward B Smith, Townsend Davis and Gustavus Bassett, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Negligence—Contributory—Streets and highways—Traveler can ASSUME THEM TO BE SAFE.
    A person traveling upon a highway is, as a general rule, justified in assuming that it is safe, and where he is injured in consequence of a defect therein, the fact that he had previous knowledge of the existence of the fact does not per se establisn negligence on his part.

      Z. Same—Care a traveler must take—Judges charge.
    The court was asked to charge that if plaintiS’s intestate knew of the existence of a certain unguarded area abutting on a public alley, or might, with reasonable and proper use of his faculties, know of the existence of it, he was bound to take knowledge thereof and to use proper care and diligence to avoid it. Held, not error to refuse That the request was too broad.
    :3 Nuisance—A pit need not be in street to be a nuisance—Street AND HIGHWAYS
    It is not necessary that the pit or obstruction should be in the street in order to be a public nuisance. That which menaced or put in jeopardy citizens who pass along the public way is a public nuisance. It is for the jury to decide whether it was a nuisance.
    4. Same—Action for damages—What notice must be shown.
    In order to maintain an action for damages resulting from a nuisance upon the defendant’s land, where siich nuisance was erected by a previous owner before conveyance to the defendant, it is necessary to show that before the commencement of the action he had notice or knowledge (actual or constructive) of the existence of the nuisance.
    •5. Same—What is constructive notice—Duty to abate.
    The defendants had been owners of the premises in question for nearly three years The nuisance was an open, visible, unguarded area abutting upon a public alley that must have been seen and known by them had they visited the end of the premises abutting upon said alley. Held, that they had constructive notice of its existence, and owed a duty to the public to have abated it
    Appeal from a judgment entered upon a verdict at the Erie circuit and from an order of the Erie special term denying motion for new trial.

      Porter Norton, for resp’t; George Wadsivorth, for appl’ts Smith & Davis; F. Brundage, for app’lt Basse
   Haight, J.

This action was brought to recover damages resulting from the death of Martin W. Bond through the alleged negligence of the defendants. The appellants, Smith and Davis, are the owners of a four story brick' building on the east side of Main street, in the city of Duff alo, running through to Webster’s alley. This alley runs southerly from Seneca street along the rear of the buildings fronting on Main street and is a cul-de-sac. The buildings on each side of the appellants’ store are built out to the line of the alley, but the rear wall of the appellants’ building is about three feet from the alley. Between the rear wall and the alley there is an open area about three feet wide and eight feet. deep. The plaintiff’s intestate was employed as a detective and watchman by Watts & Curtin’s Detective Agency, and it was his duty as such watchman to go through Webster’s alley at least once an hour during the night and examine the doors and windows of buildings owned or occupied by subscribers to that agency to see that everything was right. That the defendants were not subscribers to the agency and it was not his duty to examine their store. There were stores, however, on either side which it was his duty to examine and watch. Between twelve and one o’clock A. M., on the lHh day of September, 1884, he was found lying on his back in the northerly end of the area with his head to the south. No one was present or saw him fall into the area. He was taken out and carried to his home where he died on the seventh day of October from injuries received in falling into the area.

It is contended on the part of the appellants that the plaintiff ought not to recover herein for the reason that the evidence does not establish that her intestate was free from contributory negligence which caused the injury and that it was error on the part of the court to refuse their motion for a non-suit. In support of this -contention, the general rule is invoked that a person in order to recover for a personal injury must show himself free from fault and negligence. Undoubtedly this is the general rule, and the burden of establishing these facts rests-upon the plaintiff. When a person is approaching a known and visible place of danger, it is his duty to make a vigilant use of his senses in order to apprehend and avoid the danger, and when the circumstances point just as much to» the negligence of the deceased as to its absence or point in neither direction, the plaintiff should be non-suited, and that the presumption that every person will take care of himself from regard to his own life and safety can not take the place of proof, for the reason that persons exposed to danger will frequently forego the ordinary precautions of safety. But, on the other hand, it was admitted by the appellant Bassett that Webster’s alley was a public alley. The evidence presented upon the trial and the records of the common council of the village of Buffalo, which were presented to the general term upon the argument of this appeal, and which we admit, we think establishes the fact that it was a public alley and had been for upwards of fifty years, and the rule is that a person travelling upon a high way is, as a general rule, justified in assuming that it is safe, and where he is injured in consequence of a defect therein, the fact that he had previous knowledge of the existence of the fact does not per se establish negligence on his part. Weed v. Village of Ballston Spa, 76 N. Y , 329

The public are entitled to an unobstructed passage upon the streets, including the sidewalks of a city, and a person obstructing the same or digging pits therein, producing a nuisance, may be held liable for damages resulting therefrom. Clifford v. Dam, 81 N. Y., 52.

But it is" claimed that the area in the rear of the defendant’s building was not within the street and was not a public nuisance. As we have seen, the area was in the rear of the building and came up to the line of the street or alley. The only guard was a stone wall that extended six or seven inches up above the surface of the alley, just high enough so that a person in a dark night could stub a foot against it and fall over into the area. It is not necessary that the pit or obstruction should be in the street in order to be a public nuisance. That which menaced or put in jeopardy citizens who pass along the public way is a public nuisance. Cain v. City of Syracuse, 29 Hun, 105; S. C., 95 N. Y., 83-89.

As for instance, a wall of a building standing upon private lands, but next to the street, in a dangerous condition, so as to put in jeopardy those who pass along the street is a public' nuisance. Riley v. City of Kansas, 69 Mo., 102.

So also is a dead limb of a tree extending over the public way in a condition liable to fall and injure persons a public nuisance. Jones v. City of New Haven, 34 Conn., 1

So that in case this area was so near to the alley as to endanger persons passing along the alley it was a public nuisance. The question as to whether or not it was a nuisance was properly submitted to the jury, and their verdict upon the question is conclusive.

In the case under consideration, it was the duty of Bond to pass through this alley every hour during the night. The alley was a paved alley but fifteen feet wide. On either side there were brick buildings from four to six stories high. There was a public lamp in the alley, but the evidence tends to show that it was not lighted on the night in question. It was his duty to examine the doors and windows of buildings on either side of the area in question. He was there in the discharge of his duty and was subsequently found in the bottom of this area. It does not appear whether or not he knew of its prior existence, but the fact that he had passed through the alley on numerous occasions on other nights, may lead to the inference that he knew of it. But, even suppose that he did. Its precise location may not have been easily discernible in the darkness, and although exercising ordinary caution, his foot may have hit against the wan surrounding the area upon the line of the alley, causing him to stumble and fall in. At least, we think the evidence is such as to justify the jury in drawing this inference. McGuire v. Spence, 91 N. Y., 303; Beck v. Carter, 68 id., 283.

It is claimed on the part of the appellants, Smith & Davis, that even though the defendant Bassett is liable, that they are not. Bassett had been the owner of these premises, and had occupied them for some twenty-eight years. In December, 1881, he sold and conveyed them to the defendants, Smith & Davis, but continued in the use and occupation as their tenant until after the death of Bond. The lease provided that Bassett, the lessee, should keep the premises and every part thereof in good repair during the term, and leave the same in as good condition as when taken, reasonable use and wear thereof excepted, and it provided that the lessors, Smith & Davis, in person or by agent, should be permitted to enter the premises at all reasonable times of the day to examine the same to make such repairs therein as they shall think requisite. The area was made many years before the accident for the benefit and convenience of the owners and occupants of the building. The defendants, Smith & Davis, testified that they did not know of its existence until the accident in question. It appeared from the evidence that they were residents of the city of Buffalo, and that their office was nearly opposite the building in question, upon Main street; that they had passed this building a great many times and liad been in it, and that they had been the owners of it for nearly three years. We, consequently, think that they were chargeable with constructive notice if the jury did not find that they had actual notice. We are aware that in the Conhocton Stone Road v. The Buffalo, New York and Erie Railroad Company (51 N. Y., 573), it was held that in order to maintain an action for damages resulting from a nuisance upon the defendant’s land, where such nuisance was erected by a previous owner before conveyance to the defendants, it is necessary to show that before the commencement of the action he had notice or knowledge of the existence of the nuisance. In that case the court does not discuss the question of constructive notice.

And, again, in the case of Wolf v. Kilpatrick (101 N. Y., 146), it was held that the defendants, who were owners ■of the premises, which they had leased to a tenant who built vaults under the sidewalk, with a coal hole through the walk, which had been broken by the wrongful act of a .stranger, and that because thereof the plaintiff stepped upon it and fell, that the defendants were not liable for the reason that they had no notice. It will be observed -in this case that the vault and coal hole through the sidewalk was constructed by the tenant of the defendants, and that the tenants had entire and exclusive control over the premises. The court says in reference to the nuisance, that the defendants, the owners, could not be deemed to have ■suffered it to continue if they had no knowledge, actual or •constructive, of its existence. So that we are led to infer that had they had constructive notice a different result might háve been reached.

The nuisance in the present case was a public nuisance. The defendants, Smith & Davis, reserved the right under the lease to enter the premises and to make necessary repairs. They had been the owners of these premises for nearly three years, and it was a duty that they owed to the public to abate any nuisance that endangered the life or limb of persons passing along the alley. It was an open visible area that must have been seen and known by them had they visited the end of the premises abutting upon the alley. They should consequently be chargeable with constructive notice.

As to the defendant Bassett, there is no pretense but that he knew of the condition of the area and had for a number of years. He was in the actual occupancy of the building •and had the power under his lease to repair and protect the area. There is evidence also tending to show that he knew of the dangerous character of the place, and that another policeman some years before had fallen into the same place and broken a shoulder.

The defendant’s counsel requested the court to charge the jury that if the plaintiff’s intestate, Bond, knew of the existence of this area, or might, with reasonable and proper use of his faculties, know of ths existence of it, he was bound to take knowledge thereof and to use proper care and diligence to avoid it. The court remarked: “I have charged upon that ■subject and I decline to alter my charge, or to change it in respect to cases of abstract proof.” Counsel for the defend•ants excepted to the refusal to so charge. The court did charge the jury in reference to the contributory negligence of the deceased, that it was claimed by the defendants that Bond knew of the existence of the hole and had abundant opportunity to know about it, and that he should have kept a lookout for it, and if he fell into it he must have fallen into it carelessly, and that there was no evidence that betook proper care of himself to avoid the falling in; whilst on the part of the plaintiff it was claimed that he was lawfully in the alley, and he had the right to assume that the alley was all right; that he had no charge of the particular building in front of which the area was constructed; that it was no part of his duty to look for holes, and it does not appear that his attention was ever, directly called to it, although hetravelled there nights a great many times. Whether he-did or not, it was not his duty to bear in mind whether or not it was there. That the night was dark and there was no light, and that he being lawfully upon the ground, that the jury had the right to determine that he was not guilty of negligence. The court, after thus stating the claims of the respective parties, stated that he left the question to the jury to determine whether or not the deceased exercised diligence and whether he was guilty of negligence. As we understand the .court, it stated the claims of the respective parties as presenting the law of the case, and that it was for the jury to determine which were correct as to the facts. That the negligence of Bond depended upon such determination.

But again, we are inclined to the opinion that the request was broader than the defendants were entitled to under the authorities of Irvine v. Wood (51 N. Y., 224), McGuire v. Spence (91 N. Y., 303) and Clifford v. Dam (81 N. Y., 52).

Other exceptions appear in the case, but none which we deem it necessary to here discuss.

The judgment and order should be affirmed.

Smith, P. J., and Bradley, J., concur.


author: Bradley, J.

text:
    Mary Barker, App’lt, v. Benjamin M. Baker, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Landlord and tenant—Duties of landlord with regard to premises—Obligations to maintain in safe condition
    This action was brought to recover for injuries alleged to have been received through the defendant’s negligence. The plaintiff, in leaving an office on the upper floor of a building, owned and rented by the defendant, fell on the stairs and received the injuries complained of. It was not claimed, on the trial, that the stairs were in bad condition or improperly constructed, but that they were insufficiently lighted By the evidence it appeared that the light on the stairs was received through a window at the end of the hall, and through the office door; also that there was pendant at the head of the stairs a gas jet not lighted at the time of the accident. The proof showed that the light at that particular time was rendered dim by passing clouds that the stairs had been in the same condition for twenty years and that thisliad been, during that space of time, a source of occasional annoyance. Held, that it was the duty of the defendant to exercise reasonable care in maintaining in suitable order and condition the stairs and passage ways to the rooms occupied by his tenants, with a view to their safety, and that of others, going to and from their rooms and offices.

      2. Same—Liability of landiobd

      Held, that if the plainitffs injury was attributable solely to the want of care in that respect, on the part of the defendant, she was entitled to recover.
    3. Same—Limit of liability.

      Held, that it was the duty of the landlord to keep the premises in repair ' and that, having done that, he could not be charged with consequences resulting from their use from other causes
    Appeal from judgment entered upon non-suit directed at Monroe circuit. The action is brought for personal injuries suffered by the plaintiff and alleged to have been occasioned by the defendant.

      George D. Forsyth, for app’li; Jno. D. Lynn, for resp't.
   Bradley, J.

On the 4th day of November, 1884, the plaintiff, while walking down a stairway in a building known as Baker’s Block, in the city of Rochester, and owned by the defendant, fell and received the injury complained of. She had shortly before gone up the stairs to the law office of Mr. Amsden in the third story, and it was on her way down the first or upper flight of stairs, about eleven o’clock in the forenoon, that she fell on to the landing between the two flights leading from the second to the third story. Each stairway has eight steps, and the landing between them is about nine by seven and a half feet, and the stairs are of suitable width, and in all respects properly constructed with banisters at their sides. The only difficulty complained of is that they were not sufficiently lighted. And in the want of light consists the alleged negligence of the defendant.

The natural light furnished to the upper flight of these stairs was evidently not very abundant at any time. There was a window at the east end of a hall leading to the top of the stairs which gave some light there, and some escaped through the glass of the doors of the offices, and through the transoms over them into the hall of this third floor. There was also a pendant gas jet near the head of the stairway.

This was a cloudy, dark day, and the gas jet was not lighted. It was used to light the passage nights, and it was not usual to have it lighted during the day, although it had been occasionally lighted in the daytime by somebody. The plaintiff says that she could hardly see; that it was dark there; that she took hold the banister; that she did not “trip or anything;” that she could not see where to put her foot, and fell.

The structure was in the same condition it had been for twenty years, and the rooms on the third floor weie situated, so far as appears, as they had been during-that ' time. The occupants were tenants of the defendant, and it was his duty to exercise reasonable care in maintaining in suitable order and condition the stair and passage ways to the rooms occupied by the tenants, with a view to their safety, and that of others going to and from their rooms and offices. _

_ If this injury of the plaintiff is attributable solely to his want of care or negligence in that respect, she is entitled to recover. Henkel v. Murr, 31 Hun, 28.

And if there was any evidence tending to prove, or from which it might be legitimately inferred, that the injury was occasioned by the negligence of the defendant, the plaintiff should not have been non-suited. Totten v. Phipps, 52 N. Y., 354.

The structure and condition of the stairway, stairs and landing where the plaintiff fell were without fault. There was no difficulty in passing down them except that which the want of light produced. The defendant had not caused this by any changed condition. The clouds had dimmed the penetrating light. This did not relate to the structural means he had provided for passage to and from the third story of his building, but was an annoyance incident to the use, arising wholly from the limited supply of natural light at the place where the stairway was located.

It had been so for twenty years, and the use of the_ passage had in like manner been subject to the inconvenience from such cause on cloudy days.

The situation was no different than it appeared, and there was no want of uniformity in the steps of the stairs, or in the spaces between them, so far as appears. The fact that it was dark there on certain occasions, for the cause before mentioned, was the fault of the original plan of construction of the building, and the location of the stairway in it, and not the result of any negligence of the defendant in subsequently impairing its safety or usefulness. His duty was to keep them in repair, and having done that there was no occasion to charge him with the consequences which might result in their use from other causes.

The difficulty, such as it was, was apparent to the parties passing there. Toomey v. L. B. and S. C. R’y Co., 3 C. B. N. S., 146; Crafter v. Metropolitan R’y Co., 1 L. R. C. P., 300; Crocheron v. N. S. S. I. F. Co., 56 N. Y., 656; Loftus v. U. F. Co., 22 Hun, 33.

Nothing appears to justify the inference that the defendant was required to place a light there, or to have the gas jet lighted at the time in question. It was evidently placed near the head of the stairs for the convenience of the occupants of the third story. It does not appear who was in the habit of lighting it, but it may fairly be assumed that they could do it when occasion required.

We see no support for the action upon the evidence.

The view taken of the case renders it unnecessary to consider the exception taken to the exclusion of evidence, as that rejected had no relation to the main question which the right to maintain the question depended.

The judgment should be affirmed.

Smith, P. J., and Haight, J., concur; Barker, J., not voting. _


text:
    Eliza H. Douglass, as Adm’x, with Will annexed, etc., Resp’t, v. John T. Murray, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April, 19, 1887)
    1. Statute of limitations—When it commences to run—Action for MONEYS RECEIVED BY ATTORNEY
    In an action brought by the administratrix, a client, to recover moneys collected for the decedent by her attorney on various occasions during the period during which he was employed as such Held, the right of action arose and the statute of limitations began to run in respect to the sums collected when they were respectively received by the defendant

      2. Same—Application op payments

      Held, that the payments made by him on account of such collections not having been applied upon any particular items, were applicable, and must be deemed applied to the payment of those first received by him and in ex tinguishment of the several sums collected by him for the decedent in the order in which they came into the hands of the defendant.
    3. Same—Application op payments—Sums collected at intervals considered AS FORMING ONE SUM

      Held, also that for the purpose of the application of payments and its effect, the sums collected by the attorney for his client and remaining in is hands, might be considered as becoming one entire amount, and 'that ayments on account of it within six years prior to the commencement of he action, would have the effect to defeat the operation of the statute of limitaiions
    4. Evidence — What will not raise a presumption op payment by ATTORNEY

      Held, that the execution by the client of a satisfaction piece to a mortgage which had been placed in the hands of the attorney for collection of the moneys secured thereby, raised no presumption that she had received the sum collected by him
    Appeal by the defendant from judgment entered on report of referee.

      J. T. Murray, for app’lt: David Miller, for resp’t.
   Bradley, J.

The action is brought to recover for moneys alleged to have been received by the defendant as the attorney and agent of the plaintiff’s testatrix, and not accounted for by him. On or about the 10th day of June, 1868, Mrs. Tucker, the testatrix, took from one Hodge his bond and mortgage to secure the payment to her of 822,000, in twenty-two equal annual payments, and interest annually; and she placed this bond and mortgage in the hands of the defendant, as her attorney and agent, to collect the moneys to become due and to account for them to her.

And in November, 1870, she took an assignment from one Greene of three instalments of a mortgage, made by Aiken and Bottsford to him, which she also put in the defendant’s possession for like purpose.

The defendant from time to time, prior to August 3, 1883, collected and received payments upon the Hodge mortgage, amounting together to $32,584.15, and on the day last mentioned Mrs. Tucker executed and acknowledged in due form for record satisfaction of such bond and mortgage; and prior to and on October 2, 1874, the defendant collected and received upon the Aiken and Bottsford mortgage $1,038, and on that day Mrs. Tucker executed and acknowledged a re-assignment to Greene of that moneys thus making the amount received as such attorney and and agent on both securities $33,622.15. These moneys were so received by him in instalments each year from 1869 to 1883, both inclusive.

The plaintiff’s testatrix died December 20, 1883. And the referee has found that the defendant made advances and payments to her and on her account during the years from 1869 to 1883, inclusive (including $251 for her funeral expenses paid in 1884), amounting to $20,395.09, and directed judgment against him for $12,000.

The defendant pleaded the Statute of Limitations, and now urges its application to defeat recovery of the balance that remained due the plaintiff six years before the death of the testatrix.

This action was commenced October 28,1884. The right of action arose and statute commenced to run in respect to the several sums when they were respectively received by the defendant. Stafford v. Richardson, 15 Wend., 302; Carr v. Thompson, 87 N. Y., 160.,

But the payments made from time to time by him on account of such collections, not having been applied upon any particular items, were applicable and must be deemed applied to the payment of those first received by him, and in extinguishment of the several sums collected by him for the testatrix in the order which they came to the hands of the defendant. Pardee v. Markle, 111 Penn. St., 548; S. C., East. Rep. 493; Hammett v. Dudley, 62 Mel; Webb v. Dickenson, 11 Wend., 62-64; Hunter v. Osterhoudt, 11 Barb , 33; Truscott v. King, 6 N. Y., 147.

By such application of the payments made by the defendant to and for her, no balance remained due to her as of the time of the commencement of the action for collections made by him for her more than six years before it Was commenced, but an amount of the moneys in question exceeding that recovered by the plaintiff was collected and received by the defendant within that time, which seems to dispose of the question of the statute of limitations adversely to the defendant. And the further reason might be added, that for the purpose of application of payments and its effect, the sums collected by him for the testatrix and remaining in his hands become one entire amount. And payments made on account of it within the six years would have the effect to defeat the operation of the statute. Smith v. Velie, 60 N. Y., 106; Gilbert v. Comstock, 93 N. Y., 484.

This doctrine does not depend upon the statutory rule in relation to mutual accounts, which has no application to this case. It is also contended that the fact that the testatrix executed the satisfaction and discharge of the Hodge mortgage, goes in support of the defense and raises the presumption that she had received the moneys which had been collected by the defendant upon it inasmuch as she took from the defendant no written promise or security for any money remaining in his hands and due to her. It may be observed that the right of the mortgagor to discharge of the mortgage depended only upon the payment of the amount secured by it, and when that was done, the duty of the testatrix was to make it.

This was a matter between the mortgagor and mortgagee, and did not presumptively have the effect of adjusting matters between her and her attorney and agent further than to ascertain that the mortgagor was entitled to the discharge.

And her omission to require of the defendant to give some security for money remaining due her from him, was not inconsistent with the confidence which she had apparently reposed in him "as her agent and attorney for fifteen years.

The defendant also contends that the referee has not allowed to him the full amount to which he is entitled for payments made for and on account of the plaintiff’s testatrix. It may be that the defense was embarrassed by her death, and that he, for that reason, was unable to furnish evidence of all the payments made to her. He complains mainly of the disallowance of payments of money he claims to have made to Mr. Sawyer, who was a merchant at Lockport, N. Y., and to Mrs. Douglas, daughter of the testatrix.

During a considerable portion of the time that he was making these collections for Mrs. Tucker, he was also collecting rents for Mrs. Douglas, and making remittances to her, and sometimes moneys for both .were included in the same drafts. Sawyer testified in respect to the accounts on his books against Mrs. Tucker, which were paid; and the referee has allowed to the defendant the amounts appearing, by such evidence.

And so far as it appeared by the defendant’s testimony, that payments were made on account of Mrs. Tucker, they seem to have been allowed. The amount of payments to Sawyer allowed is $1,209.37, and $100 to Sawyer and Cook.

He claims to have made additional payments to Sawyer, and considerable (not allowed) to Mrs. Douglas, which he contends should have been allowed. And for that purpose claims an implied authority from the testatrix.

We have carefully examined the evidence and are unable to conclude that the referee was required by it to allow to the defendant as against_ the estate of Mrs. Tucker, any greater sum than that which he did allow to him.

The judgment should, therefore, be affirmed.

Haight and Lewis, JJ., concur.


author: Smith, P. J.

text:
    Thomas Derum, App’lt, v. Paul D. Carpenter, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    Evidence—Pabol when allowed to explain becobd of judgment.
    The judgment in another action was pleaded as a bar to the action herein. Held, that it was competent to show by parol evidence upon what issues the said judgment was rendered, as the record was silent on the subject.
    Appeal from a judgment of the Monroe county court, entered on the report of a referee.

      William E. Edmonds, for app’lt; John M. Steele, for resp’t.
   Smith, P. J.

The plaintiff commenced this action in a justice’s court and alleged in his complaint that in November, 1881, he agreed with the defendant to render services for him to apply on the rent of a house leased to plaintiff by defendant at $1.50 a week, and that, after moving into the house, he rendered other services for defendant at his request, not included in said agreement, no part of which had been paid, and for which he demanded judgment. The defendant denied the complaint, and set up a former recovery in bar. The plaintiff recovered judgment before the justice for twenty-five dollars damages, besides costs, and the defendant appealed to the county court, where a new trial was had before a referee.

The referee found, among other things, that in November, 1881, defendant rented a house, in Pittsford, to plaintiff at $1.50 per week; that plaintiff agreed to do chores for defendant at $1.50 per week, to be applied in payment of the rent; that plaintiff occupied the house from November, 1881, to April, 1884; that chores were done by plaintiff and his son for defendant till 23d November, 1883; that during that time, extra or outside labor was performed by plaintiff for defendant, for which bills were rendered and payments made in money and by application upon the rent of said house; that in February, 1884, defendant instituted summary proceedings before a justice of the peace, against plaintiff, to recover possession of said house, alleging an indebtedness of $6.50 for rent due 15th February, 1884; that the plaintiff appeared therein and answered, alleging, in substance, that said rent was fully paid in doing the chores and in extra work, which it was agreed should be applied in payment of said rent; and the fact of such application was not controverted by the plaintiff herein; that the claims for extra labor and services, interposed as a defense to said proceedings, are identical with those on which this action is brought; and that the question whether or not any thing was due plaintiff from defendant by reason of said claims, was fully litigated before said justice, and he decided and rendered judgment that defendant owed nothing upon said claims, and awarded defendant possession of said premises. The referee held that said adjudication was a bar to this action and ordered judgment, dismissing the complaint.

The only question raised by this appeal is whether the referee erred in holding that the adjudication in the summary proceeding is a bar. We understand the contention of the appellant’s counsel to be, that all that was decided in that proceeding is that the agreement that the services should be applied by the landlord in payment of the rent was not established. We do not so understand the case. Undoubtedly, one of the issues presented in the summary proceeding was whether there was an agreement that the services should be applied in payment of the rent; and next, if it was so agreed, whether the landlord was indebted to the tenant for such services in an amount equal to the rent in arrear. It was competent to show by parol evidence upon which of those issues judgment was rendered, as the record was silent on the subject. Doty v. Brown, 4 N. Y., 71. The justice was called as a witness for the defendant, and he testified on his direct examination that there was no dispute before him except for extra charges, and it was conceded before him that, striking out the extra charges, plaintiff owed the defendant $6.50 rent. He also testified that he found there was that amount due the defendant for rent, and that he did not allow the Elain tiff anything on the account. On cross-examination, e testified that he undertook to determine in dollars and cents whether anything was due the plaintiff on his claim.

Now, is true that the summary proceeding was not brought to recover for rent due, nor could the tenant recover therein a balance due him for services. The justice had no jurisdiction in that proceeding to try the question whether any, or what sum, was due to the tenant from the landlord for services, except upon the theory that the agreement set up by the tenant was established, but the agreement being found, the issue' then to be decided was whether there was a sum due the tenant for services equal to the amount of rent due. The testimony of the justice that he undertook to determine whether anything was due the tenant on his claim, and that he allowed him nothing, warrants the conclusion that he found the agreement was made. And we understand the referee to have found that the agreement that the services should be applied upon the rent rvas not controverted before the justice by the defendant herein. We think, therefore, that the evidence supports the conclusion of the referee that it was adjudged in the summary proceeding that the defendant owed the plaintiff nothing upon the claim herein, and, consequently, that the judgment is right and should be affirmed.

Haight and Bradley, JJ., concur; Barker, J., not voting.

So ordered.


text:
    People of the State of New York, App’lt, v. David Snyder, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887 )

    Criminal law— Practice—People cannot appeal from judgment of court of sessions—Code Crim Pro., § 518
    The people cannot take an appeal to the supreme court from a judgment of the court of sessions reversing a judgment of a court of special sessions convicting the defendant in a criminal action-
    2 Same—Code Crim Pro §t5 524 and 526, not applicable to appeals from COURT ,OF SPECIAL SESSIONS
    The pi ovist ns of Code Ciim Pro . §§ 524 and 526, have application only to cases in which appeals may. pursuant to other provisions of the statute, he taken to the supreme coutt and have no reference to cases arising in courts of special sessions.
    Appeal by the people from judgment of Ontario sessions, reversing the judgment of a court of special sessions convicting the defendant of an assault.

      O. C. Armstrong, dist.-att’y, for app’lt; John E. Robson, for resp’t
   Bradley, J.

The right of the people to take an appeal in a criminal case is wholly dependent upon the statute. People v. Corning, 2 N. Y., 9. It provides that an appeal to the supreme court may be taken by the people in the following cases and no other:

1. Upon a judgment for the defendant on a demurrer to the indictment.

2. Upon an order of the court arresting the judgment. Code Crim. Pro., §*518.

The subject of appeals from courts of special sessions is embraced in Code Crim Pro., part 5, title 3.

And it is provided that if on such appeal the judgment be against the defendant, he may appeal to the supreme court, and that its judgment upon the appeal is final. Id., §§ 770, 771.

We find no other statute permitting an appeal from a judgment of the court of sessions on an appeal thereto from a court of special sessions in criminal cases. It seems to follow that the people cannot in such case take an appeal to this court.

The provisions of sections 524 and 526 have application only to cases in which appeals may pursuant to other provisions of the statute be taken to the supreme court, and have no reference to cases arising in courts of special sessions.

The appeal should be dismissed.

Smith, P. J., and Haight, J., concur.


author: Smith, P. J.—The

text:
    People of the State of New York, App’lts, v. Hanford West, Respt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Criminal law—Adulteration of milk—Form of indictment.
    The indictment charged that at a place named, -and on a certain day named, the defendant "did, wrongfully, unlawfully and knowingly, supply and bring to be manufactured into cheese, to a cheese manufactory then and there situate, a certain quantity of milk, to wir ten gallons, which said milk was then and there diluted with water. The said Han-ford West then and theie bringing the said milk so diluted to the factory for the purpose of having the same manufactured into cheese contrary to the form of the statute, etc. Held, on demurrer that the indictment was good; that it stated all that was necessary to constitute the offense, that it was not necessary to state that the cheese was to be manufactured for market.
    2. Adulteration of milk—Law prohibiting constitutional — Laws 1885, chap. 183.
    For the purpose of preserving the public health, the legislature has power to prevent, by reasonable enactments, the sale or the putting on the market of articles of food which are deleterious to public health by reason of impurity, adulteration or any unwholesome quality or condition Laws 1885, chap 183, to prevent deception in the sale of dairy products, etc., is such an act and is constitutional.
    3. Same—Legislature to decide what injurious to the public health.
    It is for the legislature, and not for the courts, to decide whether the impure oi adulteiatcd aiticle, the sale of which is prohibited, is or is not injurious to the public health.
    4. Same—Dilution of milk prohibited by Laws 1885,®chap. 183
    The dilution of milk with water is an adulteration thereof, and is prohibited also by section 16, chap. 183, Laws 1885

      Appeal from a judgment of the court of sessions, Erie county sustaining a demurrer to the indictment therein.

      George T. Quimby, district attorney, for appl’ts: A. J. Kniglit, for resp’t.
   Smith, P. J.—The

indictment charges that at the town of Sardinia, Erie county, on the 8th day of July, 1886, the defendant “did wrongfully, unlawfully and knowingly supply and bring to be manufactured into cheese, to a cheese manufactory, then and there situate, a certain quantity of milk, to wit: ten gallons, which said milk was then and there diluted with water; the said Hanford West then and there bringing the said milk so diluted to the factory for the purpose of having the same manufactured into cheese, contrary to the form of the statute,” etc,

The thud section of chapter 202, of the Laws of 1884, entitled “ An act to prevent deception in sales of dairy products,” provides, among other things, that “no person or person shall sell, supply or bring to be manufactured to any butteror cheese manufactory, any milk diluted with water, or any unclean, impure, unhealthy, adultered, or unwholesome milk, etc. And it provides that whoever violates the provisions of said section shall be guilty of a misdemeanor.

The same provisions are contained in the third section of chapter 183 of the Laws of 1885, entitled “ An act to prevent deception in the sale of dairy products, and to preserve the public health, being supplementary to and in aid of” the act first above referred to.

If these statutes are a valid exercise of legislative power, the act charged in the indictment is a misdemeanor. The defendant's counsel contends that the statutes violate the constitutional provision that no person shall be deprived of his property or liberty without due process of law, and are therefoie void. The object of the statutes referred to is to protect the public health. Although that purpose is not specified in the title of the earlier act, it appears very clearly hour many of its provisions, and it is specified in the title to the act of 1885, which is declared to be in aid of the former act, and which re-enacts most of its provisions, in haeo verba, including the section under which the indictment is framed. To that end, the legislature has power to prevent, by reasonable enactments, the sale, or the putting on the market, of articles of food, which are deleterious to public health, by reason of impurity, adulteration, or any unwholesome quality or condition. If is tor the legislature, and not for the courts, to decide whether the impure or adulterated article, the sale of which is prohibited, is or is not injurious to the public health. People v. Cipperly (37 Hun, 319), dissenting opinion of Learned, P. J. (page 327), adopted by the court of appeals (101 N. Y , 634), Powell v. Commonwealth (Sup. Ct. of Pa., 26 Am. L. Reg. [N S.], 83, and note). The dilution of milk with water is an adulteration. One of the definitions of the term “adulterate” given by Worcester, is “To corrupt by some foreign mixture, or by intermixing what is less valuable.” And section 13 of the act of 1884 clearly implies that the law makers regard milk diluted with water as adulterated. Likewise section 16 of the act of 1885. Another object intended to be accomplished by the statutes referred to, as is indicated by the title of each of them, is to prevent deception in sales of dairy products.” Both the objects of the statutes are had in view by the provision prohibiting the selling or furnishing of milk adulterated by dilution with water, to a cheese or butter factory, to be manufactured into cheese or butter. The difficulty of detecting the deception in the manufactured article undoubtedly led to the enactment. The case is not analogous to that of In re Jacob (98 N. Y., 98), cited by the defendant’s counsel, where a statute passed ostensibly for the public health was declared unconstitutional, on the ground that it had no relation to that subject.

In Commonwealth v. Waite (11 Allen, 264), where a similar enactment to the one in hand was upheld, the court said: “It is notorious that the sale of milk, adulterated or mixed with water, is extensively practised with a fraudulent intent. It is for the legislature to judge wfiat reasonable laws ought to be enacted to protect the people against this fraud, and to adapt the protection to the nature of the case.”

Similar statutes, prohibiting the sale of milk reduced below a certain standard or account of the presence of water, was held constitutional in Commonwealth v. Evans (132 Mass., 11,) and State v. Smyth (14 R. I., 100), and see The People v. Cipperly (supra), and People v. Shaeffer (41 Hun, 24; 2 N. Y. State R., 705).

The defendant’s counsel contends that the indictment is demurrable for the reason that for aught that is alleged in it, the factory to which the milk was brought was a private factory, used by the defendant alone, and the cheese was not to be manufactured for the market, and no third per son could be injured by the act charged against the defendant. We are of the opinion that if any of the circumstances suggested exist they are matters of defense. They need not be negatived by the indictment. As that alleges all the facts necessary to constitute the offense, as defined by the statute, it is sufficient. Even if the cases supposed had been excepted from the operation of the statute, by its own terms, it would have been incumbent on the defendant to show that his case is within one of the exceptions. People v. Walbridge, 6 Cow., 513; Fleming v. The People, 27 N. Y., 329.

We think the judgment should be reversed and the case remitted to the court of sessions, with directions to overrule the demurrer and require the defendant to plead to the indictment.

Haight and Bradley, JJ., concur; Barker, J., not voting.

So ordered.