author: Barker, J.:

text:
    JOHN B. KILEY, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant.

      Telegraph company — liability of, for a failure to Minera dispatch — measure of damages — speculative damages not allowed.

      On Sunday, March 11, 1888, the plaintiff delivered toan operator of the defendant, a telegraph company at Olean, N. Y., a message of which the following is a copy: “To Hilton & Waugh, Bradford, Pa. Buy the twenty-five in to-morrow morning at best; J. B. K.,” paying for its transmission fifteen cents. The message was sent to Buffalo but never delivered. Prom the evidence given upon the trial of the action it appeared that the message was to be interpreted as a direction to Hilton & Waugh, oil brokers, at Bradford, Pa., to purchase on plaintiff’s account at the opening of the market on Monday morning 25,000 barrels of oil at the market price, and that they would h.ave so understood it had it been received. The plaintiff was speculating on the market price of oil, dealing with Hilton & Waugh, sometimes buying and sometimes selling oil upon a margin; no oil was delivered by either party, the transaction amounting simply to a settlement of the differences between the prices at which the oil was bought and sold-
    The plaintiff ordered the oil to be purchased to comply with the terms of a sale of that amount w'hich he had made on March ninth. On March nineteenth the plaintiff purchased, at a price higher than the market price on the said Monday morning, the 25,000 barrels of oil to deliver under the sale of March ninth, and thereafter brought this action to recover the differenece between the price of oil on the said Monday morning and on March nineteenth.

      Held, that assuming that the dealings between the parties might be treated as legitimate and recognized as valid, the plaintiff had failed to make a case for the assessment of damages and that his recovery should be limited to the price paid for the message.
    That as the plaintiff and Hilton & Waugh dealt with each other as principals, the plaintiff’s dispatch must be regarded as a mere offer, which Hilton & Waugh might accept or reject as they thought best without violating any agreement then existing between them and the plaintiff.

      Tlie question as to the validity of the contract, and as to whether it should be governed by the laws of this State, or by the laws of the State of Pennsylvania, considered by Barker, J.
    Appeal from a judgment, in favor of the plaintiff, entered upon the verdict of a jury rendered at the Cattaraugus Circuit for $687.57 damages.
    The defendant, a corporation created under the laws of this State, owned and operated a telegraph line between Olean, N. Y., and Bradford, Pa. Hilton & Waugh were brokers and dealers in oil, having offices in Bradford and other places. The plaintiff had transactions with them in buying and selling oil. On Sunday, the 11th of March, 1883, between five and six p. m., the plaintiff delivered to the defendant’s operator, at its office in Olean, a message, of which the following is a copy: “ To Hilton & Waugh, Bradfoad, Pá. Buy the twenty-five in to-morrow morning at best. J. B. 3L,” paying for its transmission fifteen cents. This message was at once wired from the Olean office by the way of Buffalo, but never reached its destination. On Monday, the twelfth of March, the oil market opened at ninety-five cents per barrel, and the prices on change fluctuated between that point and one dollar and one cent. The next day the market was substantially the same, at no time declining to ninety-five and one-quarter. Late in the afternoon of Monday the plaintiff was advised of the non-delivery of the message. On the nineteenth the plaintiff purchased 5,000 barrels of oil at one dollar and four cents, and 20,000 at one dollar and five cents. This action was brought to recover damages arising from the failure to deliver the message. On the face of the blank on which the message was written there were printed conditions exempting the company from liability for all mistakes in transmission, and for non-delivery, unless the message was repeated. -

      Porter Norton, for the appellant.

      J. II. Waring, for the respondent.
   Barker, J.:

In disposing of this appeal it will be assumed, but not affirmed as true, that the plaintiff was ignorant of the terms and conditions printed on the blank slip on which the message was written. As we leave this question untouched, we may also pass another point presented by the respondent, that the printed conditions, which the appellant insists form a part of the contract between it and the plaintiff, do not apply where there was, as in this case, a failure to deliver the message. So far as it appears from the record, the jury were not instructed as to the law applicable to either of these questions. The only question which we deem it necessary to consider is the one in relation to the measure of damages.

The defendant having failed to perform its agreement based upon a good consideration, the plaintiff was entitled to a verdict in his favor, at least for the charges collected by the operator. The defendant asked the court to direct the jury to limit their verdict, if they found for the plaintiff, to that amount. The request was rejected and the defendant excepted. The message on its face indicated that it related to the purchase of property and nothing more, as the quantity and kind thereof were not mentioned. It was necessary for the plaintiff, in order to sustain a recovery for more than nominal damages, to give proof of the character of the business to which the message related, and that the non-delivery resulted in a pecuniary loss. The nature and character of the business to which it related was explained upon the trial in the evidence given by the plaintiff. By the aid of such statement the message may be interpreted as a direction to Hilton & Waugh to purchase on his account, at the opening of the market on Monday morning, 25,000 barrels of oil at the market price, and it might be assumed that they would have so understood the dispatch if the same had been received by them. At this time Hilton & Waugh were dealers in oil, having an office in Bradford, Pa., and the plaintiff was a resident of this State, residing at Olean, from which place the message was sent. The nature of the business transacted between these parties, and the exact condition of the same at that time, is very clearly stated by the plaintiff in his own evidence, and in substance it was this: That he was speculating on the market price of oil, and that his dealings were carried on with Hilton & Waugh, sometimes being both a buyer and seller of that product. It was conceded as a fact that there was never any delivery made by either party of the oil bought and sold. The plaintiff testified : “ The oil bought was bought oil a margin; I put up twenty per cent on this purchase; this 25,000 barrels I bought on the nineteenth, had been previously sold by me; it was sold on the ninth of the month and purchased on the nineteenth; I bought it on the nineteenth, and it had been sold on the ninth of March; I sold on the ninth to be delivered on the nineteenth of March ; I bought it on the nineteenth for the purpose of that deal, and I had put up a margin of twenty per cent; I bought tó be delivered upon call, and put up a margin with a view of getting the use of the market, and there was no oil delivered between me and Hilton & Waugh; there was none delivered to me, and I delivered none to them ; the transaction simply amounted to the differences-between the prices at which I sold to them and the prices at which I bought it in, and the amount of the' differences depended upon the fluctuations of the market during the time in question; I dealt with Ililton & Waugh in margins ; large quantities of oil were bought and sold on the market at that time in this way.”

The price at which he sold the 25,000 barrels of oil on the ninth does not appear, nor is it important in disposing of the question of damages. It is not pretended that the transaction of the ninth was in writing, or that the oil was expected to be delivered, and the difference, if any, in the .market value between those days was to be adjusted by either a debit or credit in the plaintiff’s account with Hilton & Waugh, as the market should advance or decline. If the dealings between these parties may be treated as legitimate and recognized in- the law as valid, and should not be condemned as unlawful as being mere betting on the price of oil,, then I am of the opinion that the plaintiff failed to make a case for the assessment of damages, and that the recovery should have been limited to the price paid for the message. All sums recovered beyond that amount would be contingent, uncertain and speculative in their chai’acter. It should be kept in mind, as an important fact bearing on the question of damages, that the plaintiff and Hilton & Waugh dealt with each other as principals, and that the latter were not in any sense the agents of the plaintiff. The evidence fails to disclose any circumstance from which it can-be fairly said that that relation existed between these parties. While Hilton & Waugh may have been brokers and acted for others in that capacity in buying and selling-oil, yet the plaintiff in all the transactions disclosed by his evidence traded with them as principals on the other side of the contract. The.transaction sought to be started by-this message was an original one, wholly disconnected with the prior dealings as far as Hilton & Waugh were • concerned, and they were at liberty to reject the offer made by the plaintiff, and by so doing would not have violated any agreement existing between them and the plaintiff at that time. In view of this circumstance the plaintiff’s message was but an offer to buy of Hilton & Waugh 25,000 barrels of oil on Monday at the market price. So far as the defendant is concerned the dispatch must be regarded as if the offer to purchase the ■same quantity of oil, had been addressed to another party with whom the plaintiff had never had previous dealings. I cannot see how ■any other view can be taken of this feature of the case. The message did not relate to the sale or transfer of any property owned by the plaintiff, and its non-delivery did not operate to diminish the value of, or to change the situation of any item of his estate. The •claim that a case was made for the assessment of damages is based ■upon the idea that it was an offer to purchase, for the plaintiff insists that by the failure to deliver the message, he lost an opportunity to purchase oil at the price established by the market on Monday morning, and before he was advised that the message had not been delivered oil advanced, and he seeks to recover of the •defendant the advance in the price as his damages.

If Hilton & Waugh had been his agents in fact, or he had sought ■to make them such for the purpose of making the purchase of some ■third party, then a different question would be presented. In such a case, the plaintiff having an agent on the market, with ample funds to make the purchase, and under instructions to do so, it would be reasonable to conclude that a purchase would have been made on Monday, at the figure indicated by the early quotations of that day, and thus secure the advance which took place before he was advised that the defendant had not performed its agreement. • But how can it be said with any degree of certainty that Hilton & Waugh would have accepted the plaintiff’s offer to purchase of them the quantity of oil mentioned. They were under no legal obligations to accept his proposition. The claim of the plaintiff that they would have ■done so is wholly speculative.

If a merchant is on his way to a commission house with an intention of making a purchase of some of the merchandise there held for sale, at the- price then placed upon it, and his arrival is delayed for a few hours because the carrier with whom he has taken passage has not kept his agreement and the hour of his arrival is delayed, and in the meantime the goods which he intended to purchase have advanced in price, is it the law that in a suit against the carrier for a breach of his contract, the latter is liable in special damages for the loss of profits which the merchant claims he has sustained because he failed to make a purchase of the goods at their price at the time when he should have arrived according to the promise of the carrier. Who can say that he would have made the contemplated purchase ? It is true that he might have done so, but there.is no certainty that he would have made and concluded a contract.

This case is to be distinguished from a class of cases where the message was erroneously transmitted, and its sense and meaning changed by an alteration, and the party to whom it is addressed acts on its-terms as delivered and thereby causes damages to the sender of the communication. In such cases the telegraph company is liable for all the direct damages arising from the mistake, and it was so held in Leonard v. The New York, etc., Telegraph Company (41 N. Y., 544).

Nor is it like the case of Squire v. Western Union Telegraph Company (98 Mass., 232) where there was a failure to deliver the message and the sender was allowed to recover special damages, which it was held in view of the facts of the case, were the certain and direct result of the non-delivery of the message. In that case the owner of merchandise, who resided in Buffalo, had a correspondence with a house in Boston for the sale of the same, and they had failed to agree as to the price. Finally the owner addressed an offer of sale in writing to the Boston parties and requested a reply by telegram. Upon receiving the letter containing the offer, the Boston parties prepared the message accepting the same. If this had been delivered in due time, it would have concluded a valid contract of sale, and the advance which thereafter took place in the price of the goods, was a direct loss to the party sending the message. In principle the case at bar is similar to Baldwin v. The United States Telegraph Company (45 N. Y., 744), where it was held that the damages sought to be recovered by reason of the nondelivery of a message were speculative and uncertain and for that reason were rejected.

It is a cardinal rule on the subject of damages that one party shall recover all the damages he has sustained, occasioned by the breach of the contract by the other party, this rule is modified in its application by two others. The damages which may be recovered must be the natural and direct result arising from the breach of the agreement, and must also be certain both in their nature and in respect to the cause from which they flow. Under the rule thus qualified, speculative, contingent and remote damages, which cannot be traced directly to the breach complained of, are excluded.

Applying these propositions in the cases as they arise, such damages are only allowed as may be fairly supposed to have entered into the contemplation of the parties when they made the contract and might naturally be expected to follow its violation. Under the rule thus formulated, we are of the opinion that the damages sought to be recovered in this case, were in their character uncertain and speculative.

The appellant makes the further point, that all the transactions on the part of the plaintiff with the Pennsylvania parties w^ere void, and in violation of the provisions of the statute of this State enacted “ to suppress betting and gaming.” That they were mere wager contracts, and that the whole affair was a mere bet or game of chance, on an unknown and uncertain event. If our own laws are applicable to the case, as no actual sale or purchase of oil was made or contemplated, such contracts are illegal and cannot be enforced, (Bigelow v. Benedict, 70 N. Y., 202; Yerkes v. Salomon, 11 Hun, 471.)

The agreement of the defendant to transmit the dispatch related to such void and illegal contracts or transactions, and the dispatch was the initiatory step on the part of the plaintiff toward carrying the same into effect. Although the defendant was not a party to the unlawful scheme, yet its own agreement to send forward the plaintiff's message was a means adopted by the mover to further that illegal enterprise, and so connected with it that it is void like the scheme itself, and the law will not take notice of its non-performance at the instance of the other party to the contract. If the message had been delivered, no valid or binding contract would have resulted from an acceptance of the offer by the parties to whom it was addressed. The plaintiff is compelled to make the unlawful enterprise a part of his case. It was essential for him to prove, as a foundation for the allowance of special damages, to what the dispatch related. If he had not made proof on the subject of the object and purpose of the message, then, as a matter of law, the damages would have been nominal. (Dung v. Parker, 52 N. Y., 494.)

These views upon this point have been expressed upon the assumption that the dealings between the parties were carried on in this State, and under such circumstances that their validity must • be determined by our own laws relative to gaming contracts. But upon the case as disclosed by the record we are of the opinion that they were Pennsylvania contracts, and their validity must be determined by the laws of that State. The statutes of that State were not given in evidence, and the validity of the plaintiff’s contracts with Hilton & Waugh are not presented for our consideration, unless such contracts are declared illegal and void as against public policy by the rules of the common law. In Kirkpatrick v. Bonsall (72 Penn. St. R., 158), it was held that buying and selling-on the market, where margins only were put up, with no intent to deliver on the part of the seller, or on the part of the buyer to receive, is nothing but a mere venture, and may be characterized as gambling, and for that reason the contract was not enforceable and is utterly void. It does not appear from the case as reported whether the decision was based upon the statutes of that State or upon the principles of the common law.

The contract upon which the suit is founded was made and concluded in this State, and was for work and labor to be done and performed on Sunday, and was in direct violation of our statutes regulating the observance of that day, which prohibits all servile labor or work of any kind, “ excepting works of necessity and charity.” A contract for the publication of an advertisement in a newspaper to be issued and sold on Sunday has been held to be void under the statute. (Smith v. Wilcox, 24 N. Y., 353.)

The service which the defendant through its agent undertook to perform was servile labor, in the same sense as the labor of a mechanic would be if done on Sunday in constructing a house. The operator in receiving and sending tbe message exposed himself to the pains and penalties of the act for engaging in a service on the Lord’s day prohibited by the statute. For this reason an action cannot be maintained for a breach of the agreement to transmit the message. There is no dispute about the facts bearing on this question, for it is conceded that the plaintiff expected, when he delivered the message, that it would be forwarded at once, and not held until a secular day, then to be transmitted. Asa matter of fact it was sent from the Olean office immediately upon its reception. Other interesting and serious questions, to which we make no reference, were presented and discussed on the hearing, but we deem it unnecessary to give them any consideration on this appeal.

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

Smith, P. J., Haight and Bradley, JL, concurred in the result upon the ground that the rule of damages adopted was speculative aud uncertain, and express no opinion on the other questions discussed in the opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    ANGUS McDUFFIE, Plaintiff, v. ADELIA CLARK and EMORY SWEETLAND, Defendants.

      Deed — when the question as to whether the grant was made to a father or Ms son should be left to the jury — when a disclaimer of title by a party in possession will not be admitted to contradict the real title.

    In an action of ejectment the plaintiff claimed title under a sale had under an execution issued upon a judgment recovered against one David Brown. The defendant claimed title by inheritance from her son David O. Brown. The premises in question were conveyed on October 28, 1873, by a deed duly executed, acknowledged and recorded, in which the name of the grantee was stated to be David O. Brown. David C. Brown was the name of an infant son of tha judgment debtor whose true name was David Addison Brown, but who was sometimes called David Brown. The plaintiff claimed that the father was intended to be the grantee in the deed, and gave evidence tending to show that he negotiated the sale and that at the time of the execution and delivery of the deed, the father delivered to the grantor a bond for the purchase-money, secured by a mortgage on the premises, which were, however, executed in the name of David O. Brown. It was also shown that the father went into possession of the premises and so remained up to the time of his death. The defendant’s evidence tended to show that the true name of the father was David Addison Brown, and that in important business transactions his name was written David A. Brown.

      Held, that it was for the jury to say which of the persons, the father or the son, was intended to be the grantee, and that it was error to direct a verdict in favor of the plaintiff.
    Upon the trial the court refused to allow the defendant to prove that David Addison Brown, after thejpurchase and while in the possession of the premises* stated and declared that they belonged to his son.

      Held, that the evidence was properly excluded.
    Motion by tbe plaintiff for judgment upon a verdict, ordered in bis favor at tlie Cattaraugus Circuit, in an action of ejectment.

      William, Woodbury, for tbe plaintiff.

      William Q-. Laidlaw, for tbe defendants.
   Barker, J.:

Jolin Manley, tbe former owner of the premises, on tbe 28th day of October, 1873, by deed duly executed, acknowledged and delivered, conveyed all bis title to tlie premises. In this conveyance tbe name of David O. Brown appears as grantee. At that time two persons, father and son, lived near the premises. The real name of tbe father was David A. Brown, and be was sometimes known by bis friends and acquaintances as David Brown. The Christian name of the son was David 0., and at the date of the deed he was only about two years of age and lived in his father’s family. The only question in the case arises over the dispute whether the' father or the son was intended as the grantee. The plaintiff claims-that the father was the grantee in fact, and that the gran tor intended to convey the land to him, and the name of David O. Brown was-inserted instead of his true Christian'name'by mistake or inadvertence. If he has a title it is derived from David A. Brown, as he purchased the premises on a sale under execution issued on a judgment rendered against him by the name of David Brown.

The defendant Adelia Clark, 'who is the mother of David O'Brown, the son, claims that be was the grantee named in the deed,, and sets up a title derived from , him by descent, he having died-intestate, and she being his sole heir-at-law. The father died before the death of his son. On the face of the deed David A. Brown does not appear to be the grantee. On the contrary, the name of another person is inserted as the grantee, and the record indicates that David O. Brown was intended as the person to whom the title was to be conveyed. If the plaintiff relies on the record alone as evidence of his title, then he failed to make out a case and should have been nonsuited. The presumption arising from the record that the person whose name is inserted in the deed as the grantee was intended as the person to whom the premises were to be conveyed, may be met and overcome by. parol proof that the grantor intended to convey the lands to the person known by the name of David A. Brown, or sometimes as David Brown, under whom the plaintiff claims to have derived a title. It was perfectly competent for the plaintiff to show that the person under whom he claimed title was well known by the name of David Brown, and that the addition of the letter “ C.” between the Christian and the surname was inserted by mistake, and if such was the fact it did not affect the grant. The law knows but one Christian name, and the omission of a middle name, or the insertion of one which does not belong to the name of the grantee, does not affect the execution of a deed. A conveyance would be effective and valid if it omitted the real name of the grantee, and otherwise described him so that his identity could be ascertained, as a grant to the wife of B. as the person intended to be designated is good if she lives with him, and is generally reputed to be his wife, although never lawfully married to him. So a name by which a man is habitually called is sufficient though different from that of his baptism. The general rule is that a grant to be valid must be to some person certain named who can take by force of the grant and who can hold in his own right. (3 Wash., 238, 239; Franklin v. Talmadge, 5 Johns., 84; David v. Williamsburgh City Ins. Co., 83 N. Y., 265.)

On the trial the plaintiff gave some evidence tending to sustain his position, that David Brown, the person against whom he recovered a judgment by that name, and under whom he now claims title to the premises, was the grantee in fact named in the deed. The wife of the grantor, who joined in the deed, testified that she was acquainted with David Brown and recollected the circumstance of executing the deed on her part; and she further testified as follows : “ Thai it was made to David Brown; that he negotiated for it; that she did not know any other David Brown; she did not know any David C. Brown at that time.” It was admitted by the defendant that David Brown, the father, at the time of the execution and delivery of the deed, executed and delivered to the grantor a bond for the purchase-money, secured by the mortgage on the premises as collateral thereto; but it appears that instrument was also executed in the name of David .C Brown, and he acknowledged the same before an officer by that name. It was also proved that he went into the immediate possession of the premises, and so remained up to the time of his death, which occurred June 5, 1875. The oral evidence on the part of the defendant related to the true name of her husband, and it tended to show that his real name, by which he was usually known, was David Addison Brown; that in his marriage certificate his name was so inserted; that in a policy of insurance on his life it was written David A. Brown, and on his tombstone the inscription was the same; that he was sometimes known by the name of David Brown, but never as David C. Brown; that in other important business transactions his name was written David A. Brown. This is substantially all the oral evidence produced on the trial as to who was intended as the grantee.

I am of the opinion that, upon the whole case, it was for the jury to say which of these persons, the father or the son, was intended as the grantee. None of the several facts and circumstances upon which the plaintiff relies, or all of them taken together, are conclusive that the son, David C. Brown, was not the grantee. Mrs. Manley’s evidence on the question, standing alone, would be far from conclusive in the face of the record and the other circumstances. The item of evidence having the greatest significance, as indicating that David C. Brown, the son, was not intended as Ihe grantee, was the bond and mortgage executed by his father to the grantor, as security for the unpaid purchase-money. As it was part óf the res gestee, it was, doubtless, competent proof in favor of the plaintiff’s contention, but it was not in law conclusive on the question in dispute. David Brown would be liable on the bond, although he did not execute the same in his true name. (David v. Williamsburgh City Ins. Co., 83 N. Y., 265.)

The grantor and David Brown being both dead, neither party is able to give direct evidence of his intention, or how it occurred that the name of David C. Brown came to be inserted in the deed as grantee. Thus a degree of obscurity and doubt is thrown about the transaction. It may seem unlikely to many minds, under all the circumstances of the case, as disclosed on the trial, that it .was the intention of the parties to vest the title in the infant child, known by the name of David C. Brown; yet he was capable, in law, of taking the title to land, and it is not an unknown nor an uncommon occurrence for parents to convey, or cause to be conveyed to their infant children, the title to real estate. The defendant has the legal presumption in her favor, that her son was intended as the grantee; and whether it has been overcome by the parol proof, wTe think should have, been left for the jury to determine. (Padgett v. Lawrence, 10 Paige, 170.)

The defendants offered to prove that David Brown, after the purchase and while in the possession of the premises, stated and declared that they belonged to his son. The same was ruled incompetent and the defendant excepted. There was no error in the ruling. This was a mere disclaimer of title, and the owner of property cannot dispossess himself of a title to real estate by a mere oral declaration. It does not fall within the principle of the rule, that the admissions of one having or claiming to have title to real estate is competent, as against him and all persons claiming under or through him, as the same is stated in Chadwick v. Fonner (69 N. Y., 404). The declarations of a party in possession are admissible in evidence against the party making them, or his privies in blood or estate, not to attack or destroy the title, for that is of record, and of a higher and stronger nature, and cannot be attacked by parol evidence. Such admissions are received in evidence simply to explain the character of the possession in a given case. (Gibney v. Marchay, 34 N. Y., 301; Hutchins v. Hutchins, 98 id., 64; Jackson v. Miller, 6 Cow., 753; Vrooman v. King, 36 N. Y., 482.) The question before us is not as to the nature and character of David Brown’s possession, or the title under which he claimed, but the controversy is rvho was the real person named in the deed as grantee.

The plaintiff’s motion for a judgment upon the verdict is denied and a new trial granted, with costs to abide the event.

Present — Smith, P. L, Haight and Bradley, JJ.

Plaintiff’s motion for judgment denied and new trial granted, with costs to abide the event.


text:
    MARGARET BOYLE, as Administratrix, etc., of PETER BOYLE, Deceased, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Liability of a railroad for cattle kiliea while trespassing upon Us tracks — it is not obliged to reduce the speed of its trains to avoid them.

    Upon tlie trial of this action, brought to recover damages for the negligent killing of three of the plaintiff’s horses, it appeared that the horses escaped from the plaintiff’s pasture upon the defendant’s tracks, through an opening in a fence which the defendant was bound to keep in repair; that such opening was caused by the removal by some person, not in the employment of the defendant, of a panel in the fence a few hours before the accident occurred. The jury found, in answer to a special question, that the defendant was not guilty of any negligence in omitting to repair the fence before the horses were killed. The evidence showed that the accident occurred in the night time, when the train was moving at its usual rate of speed, not exceeding the rate of fifteen or twenty miles an hour; that the horses moved along the track only a few rods in front of the train, and were followed by it for the distance of half a mile before they were struck, although there was no obstacle to prevent their escaping from the tracks at any moment; that the engineer sounded the whistle for the last half of the distance, during which lime the horses could be seen by him by the aid of the head-light; that the speed of the train was not reduced after the horses were discovered, although the engine could have been brought to a full stop within the distance of twenty-five rods.

      Held, that as the defendant was under no legal obligation to reduce the speed of the train, and as the evidence was insufficient to establish the fact that the engineer acted wantonly and maliciously, the court should have refused to submit that question to the jury, and that a verdict rendered by them in favor of the plaintiff should be set aside.
    Appeal from a judgment in tbe plaintiff’s favor for the sum of $692 damages and $131.85 costs, entered upon a verdict rendered at the Cattaraugus Circuit, aud from an order denying the defendant’s motion for a new trial founded upon the minutes of the trial court.
    The action was for damages caused by the defendant’s having, as alleged, negligently killed three of the plaintiff’s horses by running over the same with one of its engines.

      Sprague, Morey <£ Sprague, for the appellant.

      Ansley & Dame, for the respondent.
   Barker, J.:

The plaintiff’s horses escaped from his pasture field on to the defendant’s tracks, and were there run over and killed, by a passing train of cars. The evidence tended to show that the fence between the pasture and the tracks, which was for the defendant to support and maintain, -was out of repair and not of the height and strength required by statute, and had been so for some time previous to the accident, and that in consequence thereof the horses escaped from the plaintiff’s inclosure. The defendant’s evidence tended to rebut and contradict the plaintiff’s proofs on this point, and to establish that the fence was in good order, and that, in the afternoon of the day of the accident, and only a few hours before it happened, a panel in the fence was removed by some person not in the employ of the defendant, and that the horses escaped through the gap thus made, and that the defendant’s servants were ignorant of this occurrence. In answer to a special question submitted to the jury, they found that the horses escaped at that place. The court instructed the jury, that if the horses did escape at this point, then the defendant was not guilty of 'any negligence in omitting to repair the fence before the horses were killed, and was only liable in case they found that the defendant’s servants in charge of the train intentionally and maliciously killed the horses.

It is thus made, to appear by the general and special vei’dict that the injury which the plaintiff has suffered did not occur by any omission of duty charged upon the defendant by the statute requiring it to keep the fence in repair. The only question presented for our consideration is, whether any liability has been established by the rules of the common law subjecting the defendant to the damages whicli the plaintiff has sustained by the loss of his property. The horses were estrays, and trespassing upon the defendant’s premises when killed, and for these reasons the defendant was under no obligation to be vigilant and cautious in running its trains, with a view not to injure any cattle which might come within its inclosure without any neglect or breach of duty on its part. (Tonawanda R. R. Co. v. Munger, 5 Denio, 255; S. C., 4 Comst., 349; Terry v. N. Y. C. R. R. Co., 22 Barb., 574.)

The decisions in those cases were placed upon fundamental principles of law defining the duty which the owner of land owes towards a wrong-doer trespassing upon his premises, and they have not been departed from in any subsequent case. But injuries inflicted by design are never excused, for the law is not so unjust and cruel as to regard a trespasser upon lands of another as an outlaw, and so the wrong-doer may justly complain if an injury has been done to his person or his property intentionally and maliciously.

At the close of the evidence the defendant’s counsel requested the court to direct a verdict in its favor, upon the ground among others, that the evidence did not sustain the claim that the engineer in charge of the train acted recklessly and maliciously in running down the horses. This request was properly refused, for the reason that the evidence tended to show that the horses escaped from the plaintiff’s field at a place other than at the gap, and by reason of the defendant’s negligence in not keeping the fence in repair as required by statute. But we are of the opinion that the evidence failed to establish a case justifying the jury in their conclusion that the defendant’s servants in charge of the train were guilty of intentionally running down the horses. The evidence may, perhaps, justify the conclusion that they were careless and negligent in running the train after the horses were observed, but such conduct on their part, however reprehensible it may be in morals, is not sufficient in law to justify a recovery against the defendant for the value of the property. The train was running at the usual rate of speed, not exceeding the rate of fifteen or twenty miles an hour and in the night time. The evidence tended to show that the horses had moved along the track in front of the train, and were followed by it for the distance of half a mile befoi’e they were struck, and that the engineer sounded the whistle for the last half of the distance, and during that time the horses could be seen by the engineer by the aid of the head-light, and that they were only a few rods ahead of the engine. The speed of the train was not reduced after the horses were discovered, and the only effort to avoid injury to the'homes was sounding the whistle. The engine could have been brought to a full stop within the distance of twenty-five rods. This is the most favorable statement of the case which can be made in the plaintiff’s favor.

The defendant was under no legal obligation to reduce the speed of the train, and there is no evidence that the speed was accelerated after the engineer knew that the horses were on the tracks. The defendant was engaged in operating its road in the usual and customary way as it had a clear and lawful right to do. The defendant had the unqualified right to use its property in any way and manner it was pleased to do up to the point of doing an intentional injury to the property of another. There was no obstacle to prevent the horses escaping from the tracks to a place of safety any moment, and at any time after they were discovered by the engineer up to the instant they were struck and killed on the bridge. The usual and ordinary means adopted to drive cattle from the tracks is the noise of the train and the sounding of the whistle or bell, and such signals are generally sufficient for that purpose without checking the speed of the train. (Bemis v. Railroad, 42 Vt., 381).

Ye are not aware of any rule of law that requires a railroad company to do more with a view of avoiding injury to cattle trespassing upon its tracks. It is impossible to conjecture why the engineer should have purposely and maliciously done this injury to the plaintiff’s property. It is not even suggested that he knew whose horses they were, and the circumstance disclosed by the plaintiff’s evidence, that the train followed the horses a considerable distance and only a few rods behind them, and they having an' opportunity to escape from the tracks all this time, would indicate that he had no purpose to injure them, for if such had been his intention it is most likely that he would have increased the speed of the train and omitted to sound the whistle. The evidence was not sufficient to sustain the conclusion reached by the jury that the engineer acted wantonly and maliciously, and the question should not have been submitted to their consideration. The most that can be said in criticising his action is that his conduct was heedless and morally wrong. (Nicholson v. Erie Railway, 41 N. Y., 525.) The precise question has been passed upon in the courts of other States, and the same conclusions were reached on a state of facts similar to those before us.

In Maynard v. Boston and Maine Railroad Company (115 Mass., 458) the plaintiff’s horse while trespassing on the defendant’s tracks was killed by a passing train, and the court held that the company was not liable for anything short of reckless and wanton misconduct of those in charge of the train.

In Darling v. Boston and Albany Railroad Company (121 Mass., 118) a similar case was presented, and the court in its opinion said: “ The jury should have been instructed to render a verdict for the defendant. * * * The evidence, viewed as favorably as possible for the plaintiff, merely showed that the train was moving at a usual and proper rate of speed, and that the engineer did not stop or slacken the train in order to avoid or give way to an animal which was unlawfully on the railroad. That he was not bound to do.” (See, also, the following cases bearing directly on the question : McCandless v. C. and N. W. R. R. Co., 45 Wis., 365; Price v. New Jersey R. and T. Co., 31 N. J. L., 230; Indianapolis P. and C. R. W. Co. v. Caudle, 60 Ind., 112.)

The observance by the court of well established principles of law applicable to the rights of the parties in this case requires the judgment to be reversed as unsupported by the evidence.

Smtth, P. J., Haight and Bradley, JJ., concurred.

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


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    ISAAC GOLDWATER, Plaintiff, v. THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, Defendant.

      Agent of foreign insurance company — power of to waive conditions in a policy — when notice and consent amount, to a waiver.

    In an action brought to recover upon a policy of insurance, the defendant claimed that the policy had, by reason of other insurance having been obtained upon (he property 'without the consent of the defendant being indorsed upon the policy in question, become void under a clause contained therein, which provided that “if the assured shall have or shall hereafter make any other insurance on the prop- ' erty, without the consent of the company written thereon, then the policy shall be void.” The plaintiff sought to show a waiver of this condition by proving that notice of the other insurance had been given to the defendant’s agent, who had consented thereto. The defendant, a foreign corporation having its principal office in Liverpool, had appointed one Norton, its agent, to receive proposals for insurance, and to countersign, issue and renew policies, to fix the rate of and receive the premiums to be paid and to grant permits to persons assured, authorizing additional insurance on the property covered by the policies issued by the defendant. It was not shown that the company had placed any limitation whatever on Norton’s pov/ers, either written or oral, although a clause of the written appointment under which he acted, provided that he should be “ subject to such rules and regulations as are or may be adopted by said company, and such instructions as may from time to time be given by the officers of the company.”

      Held, that the agent had power to consent to the increase in the amount of the insurance, and to waive the condition requiring such consent to be indorsed . upon the policy.
    That a provision in the policy that “ the use of general terms or anything less than a distinct specific agreement clearly expressed and indorsed on this policy shall not be construed as a waiver of any printed or written condition or restriction therein,” was not a limitation as to the particular manner in which the agent should exercise the powers confided to him.
    Motion by tbe plaintiff to set aside a verdict of no cause of action, rendered at the Monroe Circuit by direction of the trial judge. The plaintiff took an exception at the trial and the same was ordered to be heard at the General Term in the first instance.
    On the 2d day of July, 1883, tbe defendant issued to the plain-, tiff its policy, covering his stock of merchandise in the sum of $1,500, for one year. On the third of May following the premises were destroyed by fire, and this action was brought to recover the loss sustained. Subsequent to the issuing of tbe policy above mentioned, and in October of the same year, the plaintiff- procured from another company a further insurance in the sum of $1,000 on the same property. It was admitted that the plaintiff’s total loss exceeded $2,500. The only defense interposed was that the subsequent insurance was procured without the defendant’s consent, and for that reason the policy was void by the terms and conditions therein expressed.

      William Nathaniel Ooggswell, for the plaintiff.

      Satterlee do Yeoman, for the defendant.
   Barker, J.:

The policy contains this condition: If the assured shall have,, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of the company written thereon, then the policy shall be void.” No indorsement in writing, consenting to the subsequent insurance, was ever indorsed upon the policy. It was, therefore, incumbent upon the plaintiff to prove that the company did, in fact, give its consent permitting the plaintiff to make the additional insurance, and waived the provision in the policy requiring such consent to be-indorsed thereon. On proving such facts, his right of action would have been complete. He now claims that the evidence produced upon the trial fairly tended to prove both of these essential facts, and a case was made for the consideration of the jury. The-defendant is a foreign corporation, created by and under the laws-of Great Britain, with its home offices located in London and Liverpool. It transacts in this State a large amount of business,, receiving applications for insurance and selling its policies through its established agencies. It appointed William D. Norton, of Phelps, Ontario county, its duly authorized agent to receive proposals for insurance in that village and its-vicinity, and to receive-premiums, and to countersign, issu3 and renew policies. The company placed in his hands blank policies, signed by its executive officers, which he filled up with the terms of the application, and then countersigned and delivered the same to the applicant, and in-this manner completing contracts of insurance. He was authorized to and did fix the premiums to be paid in each instance, and remitted them to the company; issued renewal certificates, and did, on many occasions, grant permits to the assured authorizing additional insurance on the property embraced in the company’s policies, and indorsed such consent thereon in writing.

The powers of an agent of a foreign corporation are prima facie coextensive with the duties and business committed to his care and management, and are not narrowed or limited by the instructions issued to him by his principal, and not communicated .to those who deal with such agent. Whatever the company can lawfully do itself through the agency of its executive officers at its home office, can, in general, be done by the agent who represents it in the place where the contract was made, relative to the business ■of which he is the superintendent. (Insurance Co. v. Wilkinson, 13 Wall., 222; Pechner v. Phœnix Ins. Co., 65 N. Y., 195; Walsh v. Hartford Ins. Co., 73 id., 5; Kuney v. Ins. Co., 36 Hun, 66.)

The case does not disclose that the company placed any limitation whatever on Norton’s powers. I have searched the record in vain for any provision or direction on the subject. His written .appointment was given in evidence by the defendant, the concluding clause of which is as follows: Subject to such rules and regulations as are or may be adopted by said company, and such instructions as may from time to time be given by the officers of the company.” The sentence quoted does not contain any words of limitation, and does not of itself place any restraint on the powers of the agent. (Walsh v. Hart. Ins. Co., supra; Pechner v. Phœnix Ins. Co., supra) The defendant’s counsel cites the first of these cases as an authority in support of his argument, that Norton could not give a valid consent for the subsequent insurance, unless the same was indorsed on the policy. It will be observed that in that case there was an express provision written in the body of the policy, in the form of a mutual covenant, that no agent or representative of the company should waive any of the' terms and conditions of the policy, unless the same was indorsed on the policy in writing, and the words used were these: It is further expressly covenanted by the parties hereto that no officer, agent ■or representative of this company shall be held to have waived any of the terms and conditions of the policy, unless such waiver shall be indorsed hereon in writing. This policy is made and accepted upon the above express conditions.” This provision was held by the court to be a restriction placed on the agent as to the mode and manner in which he should exercise the power conferred upon him, of which the assured had dne notice, and that the agent would not waive a condition of the policy by an oral consent. As the opinion of the court refutes the defendant’s position and sustains the plaintiff’s contention, we extract the following therefrom: “ That the agent was authorized to consent to the vacancy by a written indorsement on the policy is clearly implied from the language of the condition, and if the mode in which his consent should be manifested had not been specified, or if no provision upon the subject had been contained in the policy, we do not doubt that Carpenter (the agent) could have consented either orally or in writing, and that his consent in either mode would have bound the company. He was the general agent of the company in the locality where he resided, to make contracts of insurance in its behalf, and was vested with large discretionary powers. The power of .such an agent must, in the absence of special restrictions, be deemed to include the power to modify contracts made by him, dispense with conditions, and do such acts from time to time as are necessary to prevent a forfeiture o.f policies as a consequence of changes in the ownership, situation or occupation of the insured property. * * * The company could itself dispense with this condition by oral consent as well as by writing (Trustees v. Brooklyn Fire Ins. Co., 19 N. Y., 305), and Carpenter, unless specially restricted, would have possessed in this respect the power of the principal.”

In that case the defendant was a foreign corporation and the contract of insurance was made in this State. In the policy here the provision is that the consent of the company to further insurance shall be expressed in writing indorsed on the policy. This was not intended to be a special limitation on its agents representing the company in foreign States as to the manner in which they should exercise the powers vested in them by their appointment. It was a provision of the contract reserved to the company for its own protection, which the company could at any time waive or dispense with in the same manner as it could any other provision inserted forits benefit, through the powers which it might confer upon its general agents.

Our attention is called to another provision of the policy as bearing upon the question as to the manner in which the agents of the company should exercise the powers conferred upon them, and is as follows : “ The use of general terms or anything less than a distinct specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver ot any printed or written condition or restriction therein.” We are clearly of the opinion that this clause of the contract does not have the effect claimed for it, and is not a special instruction or limitation as to the particular manner in which an agent shall exercise the powers confided to him. It is simply one of the general provisions of the agreement, and applies to all the conditions and stipulations which may be found in the contract. (Steen v. Niagara Fire Ins. Co., 89 N. Y., 315.)

Regarding the condition upon which the defense is based simply as one of the terms of the contract, and not as a limitation upon the powers of the agent, it is unreasonable to argue that the company could not waive its observance by an oral arrangement with the assured. It was inserted in the policy for its own protection, and it could voluntarily yield its observance. We refer to Pechner v. The Phœnix Insurance Company (supra) for a full discussion of the question.

But the defendant also contends, if it shall be held as a matter of law, that the agent could give a valid and binding oral consent, then, •as a matter of fact, no such consent was given and the evidence did not fairly tend to prove it. We are of the opinion from the evidence on this subject as presented by the plaintiff, together with the circumstances of the case, the jury would have been warranted in reaching the conclusion that within one week after the subsequent policy was obtained by the plaintiff the defendant’s agent was informed of that fact, and that he did immediately and unhesitatingly approve of the plaintiff’s action, and that the latter relied upon his remarks and expressions as an approval of his action in that respect.

The evidence also tends to prove that subsequent to this occasion the plaintiff presented to Norton, the agent, the policy, and he then •inspected and recognized the same as a contract still in force and binding on the defendant, and'in answer to an inquiry made by the plaintiff expressed the opinion that a certain class of property was not covered by tlie same. Norton was a witness for tbe defendant and disputed tbe plaintiff’s evidence and tbe facts and circumstances upon wbicb be relied to establish tbe oral consent, but it was for tbe. jury to pass upon tbe question of credibility presented by this conflict of evidence.

We are persuaded that tbe learned judge who presided at tbe trial did not place bis ruling,* directing a verdict for tbe defendant, upon tbe ground that tbe evidence was not sufficient to justify a finding by tbe jury that an oral consent was given by tbe agent for tbe subsequent insurance.

Tbe motion to set aside tbe verdict and for a new trial granted, with costs to abide tbe event.

Smith, P. J., Haight and Bradley, JJ., concurred.

Motion for new trial granted, with costs to abide tbe event.


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    In the Matter of the Appllication of the GERMAN BANK, as a Creditor of GEORGE FARTHING, Deceased, for the Mortgage, Lease or Sale of the Real Property of said Deceased for the Payment of his Debts.

      Pleadings — sale of the real estate of a decedent to pay his debts— Oode of Oivil Procedure, sec. 2752 — the petition— what allegations it must contain — what are sufficient.

    Section 2752 of the Code of Civil Procedure provides among other things that the petition to be presented to a Surrogate’s Court for an order directing the sale of the real estate of a decedent for the payment of his debts, “ must set forth the following matters as nearly as the petitioner can, upon diligent inquiry, ascertain them :
    1st. The unpaid debts of the decedent and the name of each creditor or person claiming to be a creditor, and the amount of the unpaid funeral expenses of the decedent, if any, and the name of each person to whom any sum is due by reason thereof. 2d. A general description of all the decedents real property, and interest in real property within the State.” * * *

      Held, that if the petitioner omitted to set forth any facts which the statute required the petition to state, then the Surrogate’s Court would not acquire jurisdiction and no valid decree could be entered directing a sale of the real property of the decedent.

      That where the petition is made by a creditor, the Surrogate’s Court acquires jurisdiction, if the petitioner sets forth any one item of indebtedness due to him from the deceased stating the amount and to whom the same is owing.
    That if the petitioner is not advised that there are unpaid funeral expenses, or is informed of their existence but is ignorant of their amount, and of the person to whom they are due, he may omit to make any reference to the same in his petition.
    A petition described fully several parcels of real estate, and alleged upon the information and belief of the petitioner that they were all the real estate within the State of New York of which the decedent died seized.

      Held, that the allegation was sufficient; that it was not necessary that it should be made positively and in unqualified terms.
    Appeal from an order, made in the ¡Surrogate’s Court of Erie county, refusing to dismiss proceedings for t'be sale of the real estate of the deceased.
    The German Banlc, claiming to- be a creditor of the decedent, presented to the Surrogate’s Court of Erie county a petition praying for the sale of the decedent’s real estate for the payment oi his debts. On the return of the citation, the surrogate made a certificate stating his disqualifications to act in the matter, which was presented to the General Term of this court, and an order was granted cx parte designating the county judge of Erie county to act in the place of said surrogate.
    The petition of the German Banlc. of the city of Buffalo, in the county of Erie, N. Y., contained the following, among other allegations:
    “ That your petitioner is a creditor of George Farthing, late of the city of Buffalo, Erie county, N. Y„ in the sum of $1,000, with interest thereon from January 9, 1882 ; that your petitioner’s claim consists of two promissory notes, both made by E. C. Bobbins, both indorsed by said George Farthing, each for the sum of $500, one dated November 2, 1881, and one dated November 7, 1881, both of which were duly presented for payment when due, payment of each was demanded and refused, and notice of such presentment, demand and non-payment as to each note given to George Farthing or to his legal representatives in due time.
    “ That the said claim is justly due and owing to your petitioner; that no payments have been made thereon, and there are no offsets against the same, to the knowledge of your petitioner, and that the same is not secured by judgment or mortgage upon or expressly charged on the real estate of the said deceased.”
    “ That your petitioner is informed by said executrix and believes the said firm of George and Thomas Farthing were insolvent at the time of the decease of said George Farthing, and it has been discovered and ascertained that the personal property of said decedent is insufficient for the payment of the debts and funeral expenses, or either, of said decedent.”
    ■» * * * «-

      “ That the unpaid debts outstanding against the said decedent, and the particulars thereof, with the name of each person claiming to be a creditor, as far as the same can be ascertained by your petitioner, are as follows, viz.: ”

      & * * * *
    “ That the following described real estate is, as your petitioner is informed and believes, all the real estate within the State of New York of which said decedent died seized, or which in any wise belonged to him at the time of his death.”
    The Third National Bank of Buffalo and Louis Zittel, by Lewis & Moot, their attorneys, appearing especially for that purpose, objected to the proceedings in this matter being longer continued or entertained by this court, and move that the proceedings herein be dismissed upon the following among other grounds:

      Second. Because no sufficient petition has been filed to give this court jurisdiction in the matter, in that the petition filed does not show that the personal property of the estate of George Farthing, deceased, is not sufficient to satisfy the claims of the petitioner and other creditors of George Farthing, deceased; also, because said petition does not show that diligent inquiry has been made to ascertain what debts exist against the estate of George Farthing, deceased; also, because said petition does not show, the amount of unpaid funeral expenses of George Farthing, deceased ; also, because said petition does not show of what real estate said George Farthing died seized, or that diligent inquiry has been made to ascertain of what real estate he died seized, or that the real estate described is the only real estate of which he died seized; and because all of the statements of said petition, with reference to the real estate of George Farthing, deceased, are made upon information and belief, whereas that form of statement in a petition is not authorized by law, nor is it sufficient to confer jurisdiction upon this court; and because said petition is insufficient in law, and said statement of facts is insufficient in law to confer jurisdiction upon this court.

      Lewis (& Moot, attorneys for the Third National Bank and Louis Zittel, appellants.

      Titus c& Farrmgton, for the appellants Farthing et al.

      Butler S. Farrmgton, for the guardian ad litem of infants

      P. A. Matteson, for the appellant William Zanbitzer.

      Day <& Bomer, for German Bank, petitioner and respondent.

      Clinton & Clark, for Farmers and Mechanics’ Bank, creditor and respondent.
   Barker, J.:

The county judge was designated to act in the place of the surrogate, who was disqualified, before the parties summoned made any appearance. The appellants made and filed objections to the sufficiency of the petition, claiming that there was a failure to comply with the requirements of the statute, by omitting to state the amount of the unpaid funeral expenses due from the estate of the decedent and to whom the same were owing, and for that reason the court had failed to acquire jurisdiction over the subject matter, and moved for a dismissal of the proceedings, which was denied.

If the petition omits to set forth any facts which the statute requires to be stated therein, then the Surrogate’s Court failed to acquire jurisdiction, and no valid decree can be entered directing a sale of the real property of the decedent. (Bloom v. Burdick, 1 Hill, 131; Thatcher v. Powell, 6 Wheaton, 119; Atkins v. Kinnan, 20 Wend., 241.)

The Surrogate’s Court has jurisdiction to direct the disposition of the real property of the decedent for the payment of his debts and funeral expenses, when the personal estate is insufficient for that purpose, but such jurisdiction must be exercised in the manner and limited to the cases prescribed by the statute. The jurisdiction of this tribunal is specifically defined by sections 2172 and 2719 of the Code of Civil Procedure. • The proceedings may be initiated and conducted by the executor or administrator of the estate of the decedent, or by any one of his creditors, and must be by petition duly verified. (Sec. 2750.) The petition must set forth among other things, as nearly as the petitioner can ascertain, the unpaid debts of the decedent and the name of each creditor, or person claiming to be a creditor, and the amount of the unpaid funeral expenses of the decedent, if any, and the name of each person to whom any sum is due by reason thereof. In the case now here the petitioner states the amount of its debt due from the decedent to be $1,000, fully setting forth how and when it originated. There is also set forth therein other items of unpaid indebtedness, five in number, due from the decedent, stating from whom each is owing and the several amounts of each indebtedness, being in the aggregate over $8,000. All the other facts required to be set forth in a petition, in addition to the items of unpaid indebtedness, are fully and sufficiently stated.

As the petitioner has in every respect complied with the requirements of the statute in setting forth its own indebtedness due from the decedent, that alone will sustain the jurisdiction of the court. If no reference had been made in the petition to unpaid funeral expenses, then it may be presumed that none existed. The statute does not require the petition to make any negative averment upon the subject. If he is not advised, that there are unpaid funeral expenses, or is informed that there are, and is ignorant of the amount and to whom the same is due, he may omit to make any reference to the same in his petition. The requirement is that he shall state affirmatively such facts as have come to his knowledge concerning other items of indebtedness due to other parties, and of the unpaid funeral expenses of which he is cognizant. The court acquires jurisdiction of the subject-matter, if the petition sets forth any item of indebtedness due from the decedent, stating the amount and to whom the same is owing, and by subsequent proceedings, and in the manner marked out by the several provisions of the statute, the surrogate is required to hear the parties and the petitioner and all other claimants, whether they are mentioned in the petition or not, and they may prove their debts. Before any decree can be made directing the sale of real property, it is obviously the intention of the statute that all debts due from the decedent shall be ascertained, and the value of the personal estate undisposed of determined, so that all the creditors of the decedent may share pro rata in the proceeds of the real estate necessary to be sold to pay the debts in full, and for that purpose the provisions of section 2753 were enacted.

It is claimed by the appellants that as it appears on the face of the petition that there are unpaid funeral expenses it was necessary for the petitioner also to state to whom the same was due and the amount thereof. To place such a construction upon the statute would be most unreasonable, and would result, in many instances, in depriving the court of jurisdiction of the subject-matter on the application o'f a creditor. The creditor is required when he becomes a petitioner to set forth the amount and character of his own claim, and also to state such other items of indebtedness due other parties which he has ascertained upon diligent inquiry. The provisions of the Revised Statutes upon this subject have been, in substance, brought forward and incorporated in the Code of Civil Procedure.

In Atkins v. Kinnan (supra) the executor presented a petition for the sale of the real estate of his testator for the payment of debts owing by the estate, and in his petition he sufficiently, and in full compliance with the statute, set forth one item of indebtedness, stating the amount and to whom the same was owing. The other items of indebtedness were insufficiently described, there being an omission to state to whom the same were owing, and the court held that the one item of indebtedness properly described was sufficient of itself to sustain the jurisdiction of the court over the subject-matter, and that all the others might be rejected as nullities.

Each debt due from the decedent may be made the foundation for instituting proceedings for the sale of his real property, and when a petitioner sets forth that fact in a petition to the Surrogate’s Court, the same in other respects being in compliance with the statute, the court may take jurisdiction of the subject-matter and proceed thereon in the manner pointed out by the statute. Jurisdiction being thus acquired by the action of the petitioning creditor, all the other creditors and parties interested in the estate or having title to the real property sought to be sold by the proceedings, will be fully protected by the subsequent proceedings.

Several parcels of real estate are described, and the petitioner, upon bis information and belief, states that it is all the real estate within the State of New York of which the decedent died seized. The objection is made that this averment is insufficient, and that the petitioner should have stated positively and in unqualified terms, that it was all the real estate owned by the decedent at the time of his death. We do not know of any rule of law that requires a petitioner to state facts of this character as being within his own personal knowledge. The omission to-describe a parcel of real property does not bear on the question of jurisdiction and cannot seriously affect the rights of other creditors or the heirs and devisees of the decedent.

The order should be affirmed, with costs.

Present — Smith, P. J., Haigiit and Bradley, JJ.

Order affirmed, with ten dollars costs and disbursements.


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    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. THE BANK OF DANSVILLE, Defendant.

      Draft received by a bank for collection — when the sender is entitled to the amount collected in preference to the general creditors — a receiver will be directed to make payment on a summary application.

    On Marcli 15, 1881, the finn of Enger & Co., doing business in Cincinnati, being then creditors of one Hampton, who resided in Dansville in this State, to the amount of $213.75, drew their sight draft on him for that sum payable to the order of the cashier of the Bank of Dansville, and sent the same to the said bank for collection with specific instructions to remit the proceeds. On April fifteenth the draft was paid in full to the bank, which, on the next day, drew its own draft for the amount of the collection less charges, on a New York bank, payable to the order of Enger & Co., and forwarded the same to them. The draft was forwarded by them for collection but was returned dishonored. The Bank of Danville was at this time insolvent, and ceased to do business within a few days.

      Held, that the firm of Enger & Co. was entitled to have the amount of the draft so collected by the bank, paid to it by the receiver in preference to the general creditors.
    That as the funds in the hands of the receiver were custodia legis it was unnecessary for the petitioners to file a bill for the purpose of establishing their equity, and that their claim was properly directed to be paid on a summary application by petition.

      Appeal from an order of the Monroe County Special Term requiring the receiver of the Bank of Dansville to pay $226.02 to the petitionei-, George Enger & Co., in preference' to the general creditors of the bank.
    This bank was organized under the general banking laws of this State, and being insolvent a receiver was appointed of its assets. The other material facts are stated in the opinion. From the above mentioned order the receiver appealed.

      Martin W. Cook, for the receiver "Whiteman, appellant.

      Charles J. Bissell, for the claimant Enger, repondent.
   Barker, J.:

The firm of George Enger & Co., doing business in Cincinnati, were creditors of one Hampton, who resided in the village of Dansville in this State, where the bank of Dansville was located, and they on the 15th of March, 1881, drew their sight draft on him for the sum of $213.75, payable to the order of Luther Grant, the cashier of the bank. The drawers sent the same to the bank for collection with specific instructions to remit the proceeds. On the 15th of April, 1881, the draft was paid in full to the bank. On the next day the bank drew its own sight draft for the amount of the collection less charges, on the Seventh Ward National Bank, New York, payable to the order of George Enger & Co., and forwarded the same to them, which they immediately on its receipt forwarded for collection and the same was returned dishonored. The bank of Dansville was at this time insolvent and closed its doors and ceased to do business within a day or two thereafter, and the appellant was in a judicial proceeding appointed receiver. , The claimants had no prior dealings with the bank.

. The instructions given by the drawer of the draft constituted the bank their collecting agent and no other relation than that ever existed between them. (Montgomery County Bank v. Albauy City Bank, 7 N. Y., 459.) The title to the moneys collected by the bank m payment of the draft was in the drawers, as much so as was the obligation which they held against Hampton. When the latter paid over to the bank the amount of his debt, it became the bailee or trustee of the fund, but in no sense the owner. Nothing can be gathered from the letter of instructions indicating that it was the intention of tlie drawers that the bank should become their debtor for the avails of the draft, or that the title to the money should pass to them for any purpose. On the contrary the instructions were most specific that the proceeds should be remitted to them immediately. The particular mode of making the remittance was not mentioned, so the bank, under the general authorization contained in the letter of instructions, could adopt any of the usual and customary modes of remittance in use by banks or business men at that place. It could have purchased a draft of some third party, on some bank or banker, in the usual course of business, and if it had used the money for that purpose, and in good faith, it would have been an act within the limits of its agency. But it was not authorized to use the funds and send its own draft on its own correspondent as a means of payment. It could not in that way discharge the duties it owed to its principal. Until its own draft was paid the transaction would not amount to a remittance. The relation which the parties held towards each other, and the duty which the bank assumed on receipt of the draft for collection, rests on principles of law so elementary that an attempt at illustration seems superfluous. . It may be said, however, that when a bank consents to act as a collecting agent it assumes precisely the same duties and obligations towards its principal as an individual does when he acts in the same capacity. This case is readily distinguishable from the case of The People v. The Merchants and Mechanics' Bank (78 N. Y., 269), cited by the learned counsel for the receiver. The facts are dissimilar and nowise the same in effect. In that case the depositor with the bank became its creditor in the usual course of business, and drew out the deposits on its own checks, at its convenience, with a view of paying its obligations to third parties. The circumstances were such that the court held that the bank became a debtor to the depositor. Thereafter the depositor drew its own check on the bank in favor of a third party, who, on receipt of the same, sent it forward for payment. The bank on receipt of the check charged the amount to the drawer’s account and surrendered up the check to the drawer and then forwarded its own draft to the payee of the check as the mode of making the remittance. The draft was never paid, and the bank being insolvent a receiver was appointed of its assets, and it was held, as the check was sent forward for payment and not for collection, and as the bank had not received, in any sense, money on the check for the payee of the draft, and as no fund had been set apart and appropriated by the bank for the payment of the check, so as to constitute a trust fund, that by the transaction the payee of the check became pro tanto a creditor of the bank in the place of the original depositor.

The general rule, as established by the authorities on the subject, may be stated as follows : "Where one person .receives into his hands the funds of another, he is deemed to hold them in a fiduciary capacity, such as bailee or trustee, unless they were so received with the understanding, express or implied, that the same should be turned into a debt. (Libby v. Hopkins, 104 U. S., 307; Rose v. Hart, 8 Taunt., 499; People v. City Bank of Rochester, 96 N. Y., 32.) The receiver of the bank, as its representative, received its assets subject to the same equities and impressed with the same trust under which they were held by it. (In re Howe, 1 Paige, 125; Le Roy v. Globe Ins. Co., 2 Edw., 657; In re Le Blanc, 14 Hun, 8; People v. City Bank of Rochester, 96 N. Y., 32.) If the identical moneys collected by the bank did not pass into the hands of the receiver it makes no difference, for in some shape or form they went to swell the assets which fell into his hands.

In Cook v. Tullis (18 Wall., 332) the rule is laid down as follows: “ It is a rule of equity jurisprudence, perfectly well-settled and of universal application, that where property held upon any trust'to keep or use, or invest in a particular way, is misapplied by the trustee and converted into different property, or is sold and the proceeds are thus invested, the property may be followed wherever it can be traced through its transformations, and will be subject, when found in its new form, to the rights of the original owner or cestui que trust.”

As the funds in the hands of the receiver were custodia legis, it was unnecessary for the petitioners to file a bill for the purpose of establishing their equity, and their claim was properly directed to be paid on a summary application by petition. (In re Le Blanc, 14 Hun, 8.) As none of the facts set forth in the petition were denied by the receiver in his reply thereto a reference was wholly unnecessary, and besides it does not appear that any was demanded on the hearing at Special Term.

The order appealed from is affirmed, with costs and disbursements to be paid out of the funds in the hands of the receiver.

Smtch, P. J., and Bradley, J., concurred; Haight, J., not sitting.

Order affirmed, with ten dollars costs and disbursements to be paid by the receiver out of the trust funds.


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    PFANDLER BARM EXTRACTING BUNGING APPARATUS COMPANY, Respondent, v. CASPAR PFANDLER and Others, Appellants.

      Costs — traveling fees of a witness — when allowed from the place of service of the subpoena— copy of stenographer's minutes — when the amount paid for it wiU not be allowed as a disbursement.

    Upon the trial of this action the plaintiff subpoenaed a witness who was then in the city of New York on business, but whose permanent residence was Rochester. The witness having refused to attend unless paid his statutory traveling fees, as computed from New York, the plaintiff paid him that amount.
    Held, that in the absence of any evidence to show that the plaintiff had been guilty of negligence in not sooner subpoenaing the witness, the amount so paid was properly taxed, with the costs.
    The plaintiff procured from the stenographer a copy of his minutes for which he paid forty dollars, which was allowed as a disbursement. The trial judge made a certificate in which he stated that on the trial he desired the stenographer’s minutes to be furnished to the court, and that the stenographer’s fees he taxed as a disbursement.

      Held, that as it did not appear that the plaintiff’s copy was procured or used for that purpose the item should have been disallowed.
    Appeal from an order of the Monroe Special Term, denying the defendants’ motion for a retaxation of the plaintiffs costs.
    The action was tried at the Monroe Special Term.

      J. ds Q. Van Voorhis, for the appellants.

      Theodore Baeon, for the respondent.
   Barker, J.:

The travel fees paid the witness Hawley were properly allowed. At the time of the trial the witness’ permanent residence was in the city of Rochester. "When subpoenaed he was temporarily in the city of New York on business. He refused to attend unless he was paid the statutory travel fees. The plaintiff thereupon complied with this demand and paid him thirty-three dollars and thirty cents. Hawley made an affidavit that he was obliged to travel from the city of New York to the city of Rochester for the purpose of attending the trial, and after it was over to return to New York.

Upon these facts and circumstances the parties submit the question as to the right of the plaintiff to tax the fees of the witness. We cannot say that the plaintiff wab in fault in omitting to serve a subpoaua on the witness, at his permanent home, before he left on businéss for the place where he was found and served. As it appears that the witness was compelled to make the journey in obedience to the demands of the process, it was just and proper for the plaintiff to indemnify him for his traveling expenses. The rule is to allow travel fee when paid to a witness in such cases, unless it appears that the party was in fault and guilty of negligence, in omitting to serve the subpoena before the witness left his home.

In view of the facts as disclosed, it was incumbent on the party resisting the allowance to show the fault of the party paying the travel fee. (3 Wait’s Pr., 303; 2 Abb. N. Y. Dig., 413.)

The plaintiff procured from the stenographer a copy of the evidence, whose fees amounted to forty dollars and five cents, which was allowed as an item of disbursement in the bill of costs as taxed. The affidavit as to the disbursements was made by the plaintiff’s attorney, and it states that the items of disbursement set forth in the bill were actually made and incurred.” The trial judge made a certificate, in which he stated that on the trial he desired the stenographer’s minutes to be furnished the court, and that the stenographer’s fees be taxed as a disbursement.

The defendant presented an affidavit, that at the close of the trial he called for and procured a copy of the stenographer’s notes, for which he paid. It does not appear that the court used the copy procured by the plaintiff, or that it was obtained by him for that purpose. For this reason that item should have been disallowed. The judge’s direction to the stenographer for a copy of the minutes of the trial did not direct that the fees Be paid by either party, and it is therefore to be presumed, if a copy was in fact made for the use of the court, it was without any charges to be paid therefor. (Code of Civ. Pro., § 84.)

The order is modified by directing the costs to be readjusted, striking out the item of forty dollars and five cents, stenographer’s fees, and striking out the allowance of costs to the respondent on the motion at Special Term. No costs of this appeal to either party.

Present — Smith, P. J., Barker, Haight and Bradley, JJ.

Order modified by striking out the bill of costs, the item forty dollars and five cents stenographer’s fees, and as modified affirmed, without costs of this appeal to either party.


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    HOLATIO M. SPENCE and JACOB C. CUPLER, Respondents, v. WILLIAM CHAMBERS, Appellant, Impleaded with JOSHUA BOURNE.

      Practice — settlement of a case, when a referees findings of fact are to he reviewed as being against the weight of evidence — as having no evidence to support them.

    Where a party appealing.from a judgment, entered upon the report of a referee, desires to raise in the appellate court the question that any finding of fact is against the weight of evidence, he must have the case so prepared as that it shall appear therefrom that all the evidence, bearing on the finding of fact sought to be reviewed, is set forth therein.
    Where however, he claims that a particular finding of fact is without any evidence to support it, and he has excepted thereto as provided in section 993 of the Code of Civil Procedure, 'thereby presenting for review only a question of law, it is unnecessary to state in the case that all the evidence hearing on such finding is set forth therein.

      Porter v. Smith (7 Civ. Pro., 195) followed; Perkins v. Sill (56 FT. Y., 87) distinguished.
    Appeal from a judgment in the plaintiff’s favor, entered upon the report of a referee for the sum of $227 damages.
    The action was for goods sold and delivered by the plaintiffs to the appellant and his co-defendant Eliza S. Bourne, upon their joint-account and promise to pay for the same. The appellant alone-appeared and answered and admits that the plaintiffs were copartners and denies every other allegation, and pleads payment of their entire demand excepting the sum of $200. The referee found that-the appellant and one-Eliza Bourne, the wife of Joshua Bourne,. were the owners of an oil lease and held the same as tenants in common, each owning an undivided one-half part thereof, and that they drilled oil wells on the land, and that such mining operations were carried on by them jointly; that the plaintiffs furnished torpedoes and the same were exploded in the wells for the purpose of increasing the yield of oil, and that Joshua Bourne acted as agent for his wife and had charge of the business and-property for her, but did not disclose his agency to the plaintiffs; that he was held out by himself and the defendant Chambers as the owner and party interested in such property and business, and that his wife was not known in connection therewith; that such torpedoes as were furnished by the plaintiffs were sold by them to and upon the credit of the defendant William Chambers and the said Joshua Bourne, and as a conclusion of law, that the plaintiffs were entitled to judgment for the sum of $227 damages. To the report the defendant filed exceptions to the findings of fact and to the conclusions of law. The action was originally against Joshua Bourne, and after the trial and beforé judgment, on an order of the court, Eliza S. Bourne was substituted as a defendant in his place. No objection was made by the defendant in his answer or on the trial as to the misjoinder of Eliza B. Bourne, nor as to the misjoinder of Joshua ■ Bourne.

      Benton O. Rude, for the appellant.

      Norton <£s Cheesemcm, for the respondents.
   Barker, J.:

The evidence on the questions of fact was largely contradictory. When the plaintiff rested the proofs were ample to support the plaintiff’s claim and the conclusions of the referee as set forth in his report. The evidence produced by (he appellant tended to prove that the goods supplied and used on the property, jointly owned by himself and his co-defendant, Eliza S. Bourne, were sold to the agent of the latter as the purchaser and upon his sole credit, and that the defendant was not liable as a party to the sale. The appellant now claims that the findings of fact excepted to were against the weight of evidence, and his counsel has made an elaborate argument in support of this contention.

This court upon an appeal from a judgment, entered upon the report ot a releree, lias the power to review the findings of fact and determine from the evidence whether they are without any evidence to support them or are against the weight of evidence. There is no certificate of the referee attached to the case that all the evidence given on the trial is set forth therein, or all of the same bearing on either of the questions of fact sought to be reviewed on this appeal. The point was made by the respondents’ counsel on the oral argument. As it does not appear that all the evidence given on the trial is contained in the case, this court must assume that the evidence was sufficient to sustain the finding of fact. This presents a question of practice of great importance and constantly arises on the argument of cases tried by the court without a jury or by a referee, and often produces much embarrassment on the part of the counsel for the appellant and not less so to the court. We arc of the opinion that under the present Code, by a fair construction of its provisions, the rule to be adopted is, if the case does not show that it contains all the evidence given on the trial, or all bearing on the findings of fact sought to be reviewed, this court will assume that the evidence was sufficient to uphold the findings of fact. Such was the rule adopted in another department of this court after a careful consideration of the question. (Porter v. Smith, 7 Civ. Pro. R., 195.) A party dissatisfied with the findings disposing of an issue of fact on a trial by the court without a jury, or by a referee, cannot take an exception thereto. This is positively prohibited by section 992. All exceptions are limited to rulings on questions of law. A finding of fact without any evidence to sustain it is declared by section 993 to be a ruling upon a question of law, to which an exception may be taken by either party. It has therefore been held, and very properly, as we think, that this court may determine on appeal whether a finding of fact is against the weight of evidence without ^taking exception thereto. (Mead v. Smith, 3 N. Y. Civ. Pro. R., 171; S. C., 26 Hun, 639.)

Unless the provisions of the Code are susceptible of such a construction, then neither party can have any review in this court on questions of fact. Under the old Code (§ 268), a party desiring a review of a question of fact could take an exception to the finding thereon and it was necessary to do so to secure that right, and thus the opposite party was advised before the settlement.of the case of the particular findings of fact which were to be reviewed on appeal. Under this provision the General Term in the then Fourth Department held, in the case of Perkins v. Hill, that unless it appeared by the case that it contained all the evidence the court would assume that evidence was given upon the trial sufficient to sustain the findings of fact. The Court of Appeals, in the same case (56 N. Y., 87), thought it was not a sound rule and in remarking thereon said: “•When exceptions are taken to findings of fact and a case is made for the purpose of reviewing those findings, it must be assumed that all the evidence in support of the findings excepted to is inserted in the case. If the party making up the case omits any such evidence it is the plain duty of the other party to cause to be inserted by amendment, all evidence which he deems material to sustain the findings excepted to. * * * The exceptions here being to findings of fact it must be assumed that the case contains all that is necessary to enable the court intelligently to pass upon the exceptions.”

As no exception is now required or permitted to a finding on a question of fact, we think the rule of law there laid down is no longer applicable. As no exception is now required or permitted, the defeated party may, on appeal, claim and argue that either or all of the questions of fact upon which the conclusion of law excepted to are based is against the weight of evidence, and it is the duty of the court to examine all the evidence in the record and determine therefrom whether the appellant’s position is well founded. In many cases the issues of fact are numerous and conflicting, and but one question of law is involved and may be disposed of in a single finding, yet, if an exception is taken to the legal conclusion and an appeal is brought from the judgment to this court, a review may be invoked by the appellant of every material question of fact where the claim is made, that the same is against the weight of evidence. If this proposition is correct it furnishes the true ground and reason for the rule of practice laid down in Porter v. Smith (supra), which we have concluded is the proper one to be adopted. If this rule is not to prevail then it will be absolutely necessary for the successful party, in every instance, to demand on the settlement of the case, that every item of evidence, bearing on any material issue, be fully set forth therein, for he can not be advised of the particular question, of fact intended to be reviewed on the appeal, and he cannot compel the appellant to disclose his position. It is most obvious that an appellate court cannot intelligently review a question of fact unless all the evidence is presented to it upon which the trial court, acted in disposing of the issues. In view of the change of practice effected by the new Code, it seems to be reasonable and fair to require a party demanding a review of questions of fact in this court, to present a case in which it shall appear that all the evidence bearing on the questions of fact which he seeks to review is fully set forth therein. This seems to be contemplated by section 997, for it is there provided, that the ease must contain so much of the evidence and other porceedings upon the trial as is material to the questions to be raised thereby, and also the exceptions taken by the party making the case. A judge or referee, with a view of observing this provision, would ascertain, on the settlement of the case, from the party proposing the same the findings of fact intended tobeieviewed on appeal. Having adopted these views, we decline to examine the proofs and see if the findings of fact were against the weight of evidence. For the purpose of avoiding all misapprehension as to the rule adopted by us in this opinion, we restate the points intended to be decided. First. In a case where the appellant intends to raise the question on appeal, that any finding of fact is against the weight of evidence, then it must appear by the ease that all the evidence bearing on the finding of fact sought to be reviewed is set forth therein. Second. If it is claimed by the appellant that a particular finding is without any evidence to support it, and is excepted to as provided in section 993 of the Code of Civil Procedure, and thus presenting'a question of law only, then it is unnecessary that any statement that all the evidence bearing on the finding is set forth in the case.

We have carefully examined each of the exceptions taken during the progress of the trial on the receipt and rejection of evidence, and it does not appear that they disclose any error.

The judgment should be affirmed, with costs.

Present — Smith, P. J., Haight and Bradley, J J.

Judgment affirmed.