text:
    MORDECAI RICKEY, Respondent, v. JAMES A. CHRISTIE, Appellant.

      Practice — appearcmce of a pwrty by an attm'ney in a Justice’s Court — an objection to the tmthorüy of the attorney so to do is waived, by the failure of the adverse party to raise it— Code of Civil Procedure, secs. 8886, 2889, 2890.
    In this action, commenced by the plaintiff in a Justice’s Court, the summons was personally served on the defendant. Upon the return day the plaintiff appeared by one Bently and the defendant by one Barlow, both of whom were attorneys and counselors-at-law. Issue having been joined the cause was adjourned by consent of the parties to July twenty-first, at which time the plaintiff appeared in person, but the defendant did not appear. Upon the evidence then offered by the plaintiff a judgment was entered in his favor.

      Reid, that it should be affirmed.
    That although the plaintiff did not appear on the return day, his appearance on the adjourned day was a ratification of the act of Bently in then appearing for him.

      Underhill v. Taylor (2 Barb., 348) followed.
    That as the plaintiff did not require Barlow to show or prove his authority to appear for the defendant, or object to his' failure so to do, the justice was not bound to require proof of such authority, and was authorized to grant the adjournment and to enter the judgment.

      Ackerman v. Pinch (15 Wend., 652) followed; Sperry v. Reynolds (65 24. Y., 179, and other cases) considered and distinguished.
    Appeal from a judgment of tbe County Court of Cbemung county, affirming the judgment of a Justice’s Court.
    From the justice’s return it appears “that on the 7th day of July, 1884, a suit was commenced by the plaintiff in Horseheads, in Chemung county, by a summons issued on that day in favor of the plaintiff against the defendant, returnable July 14, 1884, at twelve o’clock at noon.” It appears the summons was returned, personally served, July 8,1884, with the constable’s “return duly indorsed thereon.”
    “At the time and place last mentioned (fourteenth) the parties appeared, the plaintiff by E. S. Bently, the defendant by Cyrus Barlow. The complaint and answer were in writing.”
    “ Issue being thus joined, the cause was adjourned by consent of parties to the twenty-first day of July, then instant, at one o’clock p. m., at the justice’s office.”
    “At the time and place last mentioned, the plaintiff again appeared. The defendant did not appear.” The return of the justice also states, viz.: “ That the persons who pretended to appear for the respective parties, or either of them, at the joining of issue in this cause, on the return of the summons, made no proof by affidavit or otherwise of their or his authority to appear in the case as attorney for the plaintiff or defendant therein; ” that “ Mordecai Rickey, the plaintiff in this action, did not appear at the joining of the issue in the above case or at any other time, other than at the trial on the 21st of July, 1884.” 'That the plaintiff “ appeared -by F. S. Bently, at the joining of the issue, and the defendant appeared by Cyrus Barlow. On the twenty-first day of July, the day the suit was tried, the plaintiff appeared in person. The defendant did not .appear.”
    The justice also returns, viz.: “ That Cyrus Barlow, who appeared for the defendant on the joining of the issue, and who con-sentedtto the adjournment, was at the time and still is an attorney and counselor-at-law, duly admitted and licensed to practice as such in the several courts of this State, and is the same person and attorney whose name is subscribed to the notice of appeal herein as attorney for the defendant and appellant, James A. Christie ; ” “ that F. S. Bently, who appeared for the plaintiff Rickey, on the return of the summons herein, was also an attorney and counselor-at-law, duly authorized and licensed to practice as such.”
    The evidence given upon the trial was sufficient to establish the cause of action stated in the plaintiff’s complaint, and to authorize the judgment for the plaintiff for eleven dollars damages. No question is made by the defendant upon the merits as to the sufficiency ■of the evidence. The judgment rendered by the justice on the 21st day of July, 1884, was as follows : “ In favor of the plaintiff and against the defendant for damages, eleven dollars; costs, two dollars and sixty cents; total, thirteen dollars and sixty cents.”
    The judgment was sustained by the County Court.

      James A. Christie, appellant, in person.

      Dailey <& Bentl/y, for the respondent.
   Hardin, P. J.:

By personal service of summons upon the defendant, as shown by the summons and the constable’s return thereon, the justice obtained jurisdiction of the person of the defendant, and over the subject-matter of the action.

In Barnes v. Harris (4 N. Y., 376), GARDNER, J., says : “It may be assumed as a principle to which, it is believed, there is no exception, that a court having authority to issue a process acquires jurisdiction of the person of the defendant, prima, facie, by a personal service of that process upon him in the manner required by law.’

The same doctrine is followed and reasserted in Wilkinson v. Vorce (41 Barb., 374), where it was said, that although a constable who has served the process by which the action was commenced was prohibited from appearing and acting for the plaintiff upon the trial, and such action on "his part was an error for which a judgment would be reversed, it was not such an error as would take away the jurisdiction.

The defendant had an opportunity to appear on the return day. He neglected to avail of that opportunity to appear in person. Although the appearance for the plaintiff on the return day of the summons was by his agent or attorney, that appearance was ratified by the plaintiff, who appeared in person on the adjourned day, which was not more than eight days from the date of joining issue* and was, therefore, a time proper for the adjournment, irrespective of any appearance on the part of the defendant.

In Underhill v. Taylor (2 Barb., 348) it was held that where, on the joining of issue, a person appeared in behalf of one of the parties without objection, and without producing any evidence of his authority, but on the trial of the cause such party appeared in person, that such appearance by the party was evidence of the authority of the person who joined the issue to appear for him. Cady, P. J., in his opinion in that case, remarks, viz.: “ Taylor appeared in person on the trial of the issue which Edwards had joined for him. This was abundant evidence that Edwards had authority to join the issue.”

Second. In article 3, part 3, chapter 2 of the Revised Statutes (2 R. S., 232) it was provided, viz.: “Any plaintiff in a suit before a justice, except persons under twenty-one years of age, may appear and conduct his suit either in person or by attorney.” (Sec. 39.) And it was also provided in section 41, viz.: “Every defendant .in a suit, except persons under twenty-one years of age, may appear and defend tbe same in person or bj attorney; but where a warrant shall have-been served on a defendant and returned, no further proceedings shall be had against him until he shall have personally appeared in court.” In section 44 it was provided as follows, viz.: “ A party authorized to appear by attorney may appoint any person to act as such attorney; but the constable who served either the original or jury process in the cause shall not appear and advocate for either party at the trial, but may act as attorney in any other stage or proceeding in the cause.” In section 45 it is provided as follows, viz. t “ The authority to appear by attorney may be either written or verbal, and shall in all cases be proved either by the attorney himself or other competent testimony, unless admitted by the opposite party; and the justice shall not permit any person to ajapear for another without such proof or admission.” (2 R. S., 233.)

Section 2886 of the Code of Civil Procedure is as follows, viz.: “ A party to an action before a justice of the peace, who is of full age, may appear and prosecute or defend the same in person or by attorney, at his election, unless he has been judicially declared to be incompetent to manage his affairs.”

Section 2S89 provides: “Any person, other than the constable who served the summons or the venire, or law ’partner or clerk of the justice, may be the attorney for a party to an action before a justice of the peace.”

Section 2890 of the Code is as follows: “ The attorney’s authority may be conferred orally or in writing, but the justice shall not suffer a person to appear as an attorney unless his authority is admitted by the adverse party or proved by the affidavit or oral testimony of himself or another.”

A careful inspection of section 45 of the Revised Statutes, which is quoted, and a comparison thereof with section 2890 of the Code, leads to the conclusion that there is no essential difference in the-language of the two provisions of the statutes. In the former ease the words “the justice shall not permit” are equivalent to the words found in section 2890, “the justice shall not suffer a person to appear,” etc. In other respects the provisions of the Code, which we have quoted, are essentially like the provisions of the-Revised Statutes above quoted. Under the Revised Statutes it was held, in Ackerman v. Finch, (15 Wend., 652), viz.: “A justice of the peace is not bound to require proof of the authority of a person who claims to appear as attorney for one of the parties in a cause prosecuted before him, if the other party does not object to such appearance. If a party does not object to the appearance of his adversary by attorney, he will be deemed to have admitted his authority to appear.” In that case, on the return of the process, the plaintiff appeared by his attorney. The defendant did not appear in person, but another person appeared as his attorney, and in delivering the opinion of the court Cowem, J., said, viz. : “Neither attorney objected to the authority of the other, and the justice neither required nor took any proof of their authority pursuant to •2 Revised Statutes (233, § 45). I think, however, the non-objection must be received for admission within the meaning of the statute that declares expressly that admission shall be equivalent to proof.” (2 R. S., 233, § 45.)

The learned appellant calls our attention to Sperry v. Reynolds (65 N. Y., 179), which was decided in 1875 while the Revised Statutes were in force, and insists that that is an authority overruling Ackerman v. Finch (supra). In Sperry v. Reynolds the summons was served by copy, and it was held that the service was not good, and that it was not sufficient to authorize the justice to proceed in the action in the absence of defendant. It Ayas further held in that case, viz.: “'Where the jurisdiction of a justice in an action depends upon the voluntary appearance of a party, such party may assail or defend against a judgment rendered against him by showing that he did not appear, or that the appearance of any -one for him was unauthorized.” And it was further held that there was nothing in the record then before the court to show that the justice obtained jurisdiction. That case was decided by a divided court, and EaRl, Com., in the course of the prevailing opinion, says, in respect to section 45, Revised Statutes, viz,: “ This statute was not passed for the protection of a party for whom an attorney may appear, but for the protection of the opposite party, and hence that party can waive any proof of the attorney’s authority. The plaintiff did waive it in this case by not objecting to Crandall’s authority to appear (Ackerman v. Finch, 15 Wend., 652), and hence they were concluded by his appearance.. There is no statute requiring the justice to take any proof of the authority to appear, looting to tbe protection of tbe party for wboin tbe appearance is made.” And towards tbe close of tbe opinion tbe learned commissioner adds, “ for tbe reason, therefore, that this record does not -show an appearance of this defendant before tbe justice by an authorized attorney so as to give jurisdiction of bis person, I favor a reversal of all tbe judgments below, with costs.”

It will be observed, therefore, that tbe case now before ns differs from that one inasmuch as tbe justice bad jurisdiction in tbe case now in band, upon tbe return of tbe summons personally served. "We regard Ackerman v. Finch a binding authority applicable to tbe question now before us, although Bennett v. Brown (4 Comst., 254) and Davis v. Marshall (14 Barb., 96), and other authorities, are to tbe effect that a bond is necessary in certain attachment cases and must be given before tbe justice, obtains jurisdiction: and, so far as Ackerman v. Finch involved tbe question of tbe sufficiency ■of tbe steps to obtain jurisdiction, it may be regarded as questioned. We think in regard to tbe point involved in tbe case in band, that it remains as an authority undisturbed by any decision to which, our ■attention has been called, or which we have been able to find by our ■own research of tbe authorities.

In chapter 204 of tbe Laws of 1808, in tbe “act for tbe more ■speedy recovery of debts to tbe value, of twenty-five dollars,” passed April 11, 1808, section 25 was as follows: “ And be it further ■enacted, that it shall not be lawful for any justice, in any case to be tried at any court held before him, to admit or permit any person to appear and advocate in tbe said court in any cause to be tried before such justice, for any party in any manner whatever, provided nevertheless, that if any such person shall be prevented from attending on the trial of bis, her or their cause by reason of sickness or absence from the county in which any such cause shall be tried and proof thereof be made, such cause shall be exempt from the foregoing provision.” "While that section remained the law several decisions were made in cases arising under it. Our attention baa been called to those cases by tbe appellant.

In Rosekrans v. Van Antwerp (4 Johns., 229), decided in 1809, we find a reference to tbe Session Laws of 1808, where it was held that the justice bad no right to act mpon bis personal knowledge that tbe plaintiff was absent from tbe county, and it was held that the justice erred in acting upon such personal knowledge, and the court observed, in commenting upon the statute, viz.: “As this provision in the statute is a pretty rigorous restraint of the common law right of every party to appear by attorney, and may operate, in many cases, most severely upon a party who is wholly unskilled in conducting a cause, or even in stating a case, we could wish that the proviso admitted of greater latitude of interpretation, but as the statute is explicit that proof of the. absence of the party must be made before the attorney is to be admitted, the justice cannot act from his own knowledge and call that knowledge proof.”

Appellant calls our attention to Tullock v. Cunningham (1 Cow., 256), where it was said “ the authority of an attorney, who ajipears either for a plaintiff or defendant before a justice, must be proved.” But that case was decided in 1823, and does not aid the defendant. Nor does the case of Beaver v. Van Every (2 Cow., 429), decided in 1823, where it was held again the justice had no right to decide from his own knowledge that the party was sick and unable to attend, the court saying, viz.: He should have required the usual proof of an authority'to appear.” Nor does Fanning v. Trowbridge (5 Hill, 429) aid the appellant, where it was again held that the justice had no right to allow an appearance by an attorney upon information received out of court as to the attorney’s authority, there being no evidence, warrant or waiver of proof in the court. Nor does Lester v. Crary (1 Denio, 81) aid the appellant. The summons in that case was returnable on the fifteenth of December. It was served by copy, and the justice stated in his return that he saw the defendant on the thirteenth of December, and it was agreed between the defendant and "Weaver that they would appear before the justice on the twentieth of December. The justice entered upon his minutes that the parties appeared on the thirteenth of December and adjourned until the twentieth of December. On the twentieth "Weaver and Crary went before the justice, and at the request of Crary the cause was adjourned to the twenty-fifth of December. On the twenty-fifth Crary did not appear. Weaver appeared and took judgment, and the court held that a suit can only be commenced by process “ or. by the voluntary appearance of the parties and joining issue,” and again repeated the doctrine, viz.: That a justice has no right to act upon information relating to the parties or the suit which he has picked up when out of court; .and further, it was a mistake, therefore, to enter on his minutes that the parties appeared on the thirteenth and adjourned to the twentieth of December, and when there is no process there is no suit or action pending until the joining issue. Nor does Hughes v. Mulvey (1 Sanf. Supr. Ct. R., 92) aid the appellant. In that case the summons was served by copy and on the return thereof, the wife of the defendant appeared and put in a general issue, and the cause was adjourned and, on the adjourned day she again appeared with a lawyer, who “moved to dismiss the suit on the ground that the summons having been served by copy, the original appearance of the defendant’s wife for him was void, even if she had his authority.” The justice overruled the objection. Judgment was taken and was sustained upon an appeal, and the court said, viz.: “ As the wife of the defendant, she had no authority to act for him, but the circumstances appearing before the justice in the progress of the case were sufficient to establish the fact that she was authorized to appear and plead in his behalf.”

We find nothing in the appeal book indicating that the defendant has any defense upon the merits to the plaintifE’s claim, or that any injustice has been done by the judgment which is rendered in the court below.

By the uniform practice of the courts in reviewing proceedings had before a justice of the peace, such judgments are to be sustained by every reasonable and warrantable intendment. (Schoonmaker v. Spencer, 54 N. Y., 366.)

Being of the opinion that the judgment below should, upon authority, be sustained, and having failed to discover any technical errors or defects affecting the merits, and being commanded by section 3063 of the Code of Civil Procedure “ to render judgment according to the justice of the case,” we come to the conclusion that it is our duty to sustain the judgment of the Justice’s Court and of the County Court, affirming the same. (Snyder v. Schram, 59 How. Pr., 409.)

Judgment of the County Court of Chemung county affirming the judgment of a Justice’s Court affirmed, with costs.

Boardman and Follett, JJ., concurred.

Judgment of the County Court of Chemung county affirming the judgment of a Justice’s Court affirmed, with costs.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    WILLIAM NEWELL, Appellant, v. CORNELIUS J. RYAN and JOHN B. McDONALD, Respondents.

      Negligence — liability of a master, to one of Ms servants, for appointing an incompetent person to act for him.

    The plaintiff, an engineer in the employment of the defendants, while engaged in drawing a train of cars from a dump to the gravel pit, at night, came into collision with another train running from the pit to the dump and sustained injuries, to recover damages for which this action was brought. The evidence tended to show that the plaintiff looked down the track, just before the collision occurred, and discovering nothing commenced to oil the valves of his engine, which had to he done while the engine was in motion;, that the other train usually remained in the pit until the train returning from the dump had reached the pit or passed the switch, and that the head-lights in the engines were usually kept lighted at night.
    On the night in question the other train left the pit, before the plaintiff’s train had reached the switch, without having the head-light lighted. It was in charge of one Kinney, who was acting as engineer for the first time on that night,, he having been previously employed as a fireman for five or six months, and having had little or no experience as engineer.

      Held, that it was error to nonsuit the plaintiff upon the ground of his contributory negligence; that both that question and that of the negligence of the defendants, in placing one of their engines in the charge of an incompetent person, should have been submitted to the jury.
    Appeal from a judgment, entered in Onondaga county upon a nonsuit directed at tbe Onondaga Circuit.
    Tbe plaintiff was injured by tbe collision of two trains while-operating as an engineer upon a locomotive engine in tbe service of tbe defendants, on the 16tb of October, 1883. Tbe defendants were copartners, being engaged in tbe construction of a section of tbe New York, West Shore and Buffalo Railway, west of Syracuse.
    Tbe plaintiff alleges that the defendants “did not provide, or cause to be provided, good, safe, competent, skilled and experienced-engineers to run, manage and handle tbe other locomotives and trains, running and working in connection with the plaintiff on said construction works; but ran, managed and bandied one of the-locomotives and trains of said dumpers, running and working in connection with this plaintiff and his train, and caused tbe same to be run, managed and bandied by an unsafe, unskilled and inexperienced man.”

      The defendants allege that tlie plaintiff was injured through his own carelessness and want of skill, “ or through the carelessness and want of skill of his co-servants and co-employees.”
    The trial judge put the nonsuit upon the ground “that the evidence demonstrates that the negligence of the plaintiff contributed to the injury.”

      M. E. Driscoll, for the appellant.

      M. A. Knapp, for the respondents.
   Hardin, P. J.:

By the evidence it appears the defendants were engaged in removing, from gravel pits to the line of the railroad, gravel, by means of three engines and three trains of what are known as “ dump cars.”

The plaintiff was engineer and operator of the “ Della,” and she had been out to the long dump and unloaded, and was running back, and had run within thirty or forty rods of the switch, when the Henrietta, with another train of dump cars, started out from the pit and came in collision with the plaintiff’s engine, causing the injuries.

There was evidence tending to show that it was the practice during that night, as this service was being performed in the night, for the trains in the pit to remain until the return of the train that had gone out to dump. If the train moved by the Henrietta had remained in the pit until the Della had returned to the pit, or to the switch adjacent to the pit, the collision would not have occurred.

Plaintiff’s evidence tends to show that there had been such a practice during the operation of the "trains that night; that he had reasonable grounds for relying upon the Henrietta remaining in the pit until he had returned. Just before the injuries were received the plaintiff looked down the track, and discovering nothing approaching commenced oiling the valves of his engine, which process had to be performed while the engine was in motion. While thus engaged in oiling the valves the collision occurred. The Henrietta was moving out of the pit without any head-light. The evidence tends to show that it was the duty of the engineer of the Henrietta to supply a head-light. None was supplied that night by the persons operating tbe Henrietta. On the occasion of the accident John Kinney was acting as engineer of the Henrietta. That was the first night he had had charge of the engine. Prior to that he had been a fireman five or six months, with little or no experience as engineer, except such as lie derived from making a few short trips in the daytime. He had beeD engaged some little time in “firing” in the daytime. He was operating the engine that night with a head-light on the engine, but it was not lighted, and the evidence tends to show that it was his duty to have had the head-light lighted; and there is some evidence tending to show that had there been a head-light the persons on the train operated b.y the plaintiff would have seen it and the injury would have been avoided; and there is some evidence tending to show that it was the duty of the engineers to determine for themselves when to go out, and not to do so until the track -was known by them to be clear. We think there was sufficient evidence to require the question of fact to be submitted to the jury, whether or no the defendants were guilty of negligence in the premises.

In Mann v. The Delaware and Hudson Canal Company (91 N. Y., 500) Judge Andrews says, viz.: “The duty to use due care in the selection of competent servants is one of the masters duties. The duty of selection, in case of corporations, must be delegated. But any negligent act or omission in its performance is the act or omission of the master. In Laning v. The New York Central Railroad Comdany (49 N. Y., 521; 10 Am. R., 417) the actionable negligence upon the case as presented was found in the employment of Westman, who had, after his original employment by the defendant, become incompetent by intemperate habits, and who selected the incompetent man to build the scaffold. But Flike v. The Boston and Albany Railroad Company (53 N. Y., 549; 13 Am. R., 545), and Booth v. The Boston and Albany Railroad Company (73 N. Y., 38; 29 Am. R., 97), show that if Westman had been a fit man to be intrusted with the duty, his negligent employment of incompetent men would have rendered the defendant liable. In the Flike case Rockfeller was a competent man, but his omission to see that the proper number of brakemen were sent with the train, was held to be an omission of the master for which the principal was responsible. In the Booth case, arising out of the same accident as the Flike case, the point was made that as it then appeared that, by the rules of the company, it was the conductor’s duty to report to Rockfeller any deficiency of brakemen, and that the conductor omitted to perform this duty, the omission was that of a co-servant merely; but this court overruled the point on the ground that no matter whose immediate negligence it was to start the train without sufficient brakemen, it was in law the negligence of the defendant. In Fuller v. Jewett (80 N. Y., 46; 36 Am. R., 575) the same, rule was applied in respect to the duty of the master to provide suitable machinery and keep it in repair. The work of repairing the engine in ■that case was committed to competent mechanics with proper instructions, but they failed to perform the duty properly, and the master .was held responsible for the omission. In this case it does not appear that Benedict knew that Townsend was an unfit person to be sent to flag the train. The company had apparently, without any inquiry as to his qualifications, put him in the position of an extra man, who might be selected by a conductor to fill a vacancy, thereby giving an assurance of his competency for the position. Even if Benedict was negligent in selecting Townsend, he was in so doing acting in the place of the master, and his negligence was the defendant’s negligence. The power to select a temporary brakeman from the extra men was conferred upon Benedict. The brakemen were subject to his orders. It would be unreasonable that the master should confer upon a subordinate the power to select a man for so important a duty as that intrusted to Townsend, and be exonerated from responsibility on the ground that the subordinate was negligent in its performance. The primary wrong was the placing of Townsend among the extra men without inquiry as to his fitness, or instructing him as to the rules of the company. The negligence of Benedict, if it existed, was secondary and co-operative merely. These views cover the questions presented.”

In Payne v. The Troy and Boston Railroad (83 N. Y., 574), the court says : “ The testimony here as to the defendant’s negligence is not very strong, and the case is a very close one on the question of such negligence; yet it was'not so destitute of facts and circumstances for the consideration of the jury, and so clear against the plaintiff, as to leave no room for doubt, and to justify the court in holding that there was no evidence of negligence. It is a well settled rule, tliat it is a matter of right in the plaintiff to have the issue of negligence submitted to the jury, when it depends upon conflicting evidence or on inferences to be drawn from circumstances in regard to which there is room for a difference of opinion among intelligent men.”

Second. Whether the plaintiff was guilty of contributory negligence or not was a question of fact. There was some evidence tending to show that the practice adopted for the movement of the trains that night justified the plaintiff in assuming that the track would remain clear for the return train, and that the Henrietta train would remain in the pit until the return train had vacated the track. Before the plaintiff commenced oiling his valves he looked down the track and discovered nothing in the way of the progress of his train. It was for the jury to say whether or no, under all the circumstances, he was acting like a prudent and cautious man in oiling the valves at the time and place and under the circumstances attending the operation of the trains. It is to-be borne in mind that this service was being performed in the night time with the knowledge of the defendants, and that the Henrietta had theretofore not only had a head-light on its train but that light had been lighted, and it was for the jury to consider whether the antecedent practice in respect to maintaining a head-light lighted should not be kept up. It was for the jury to say what inferences should be drawn from all the evidence and circumstances disclosed with regard to the plaintiff. (Seybolt v. The N. Y., L. E. and W. R. R. Co., 95 N. Y., 562; Hart v. The Hudson River Bridge Co., 80 id., 622.)

During the trial Boyle, a locomotive engineer, was called as a witness in behalf of the plaintiff, and he stated that the ordinary time required for a man to act ¿s fireman before he is competent to take charge of an engine varies. When he was asked how long that experience should continue before he was competent, there was an objection made and the evidence was excluded. The witness continued that he knew Kinney while he was on the works, and that so far as the witness knew the business of Kinney was that of fireman. Witness was then asked whether he could say that Kinney was competent to run an engine on those works. That was objected to and the evidence was excluded. Witness continued, viz.: “ It bas always been customary for engineers to attend to tbeii head-lights ; tliey were responsible for them, and if not in order to report them.”

It would seem from this evidence that - there was a neglect on the part of the engineer Kinney, in charge of the Henrietta, to have a light on his train before moving the same. Whether that neglect arose from the circumstance that he was inexperienced and unfit to be an engineer, was a question to be considered in connection with the other evidence by the jury. The absence of the light on the Henrietta was a circumstance legitimately bearing upon the question of whether or no the plaintiff was guilty of contributory negligence at and preceding the time of the injuries received by him.

We come to the conclusion upon all the facts and circumstances disclosed by the evidence, that a question of fact was raised for the jury to determine whether or not the plaintiff was guilty of contributory negligence, and that it was error in the trial judge to hold, as a matter of law, that the plaintiff could not recover by reason of his supposed contributory negligence.

If these views are correct they will lead to a new trial.

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

BoardmaN and Follett, JJ., concurred.

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


text:
    In the Matter of the Personal Estate of ELIZABETH R. WEST, Deceased.

      Letters of administration — power of the surrogate to revoke them — for what causes it may he exercised— Oode of Civil Procedure, sec. 2685.
    As the surrogate was about to grant letters of administration to one West upon the estate of bis deceased wife, tbe appellant, Mary Jones, a sister of the deceased, and her friends applied to West for bis consent to have her associated with him as administratrix, it being then represented and stated to West that there would be in that case no conflict of interest as to the estate. To establish peaceful relations between himself and his sister-in-law, West was induced by these representations to consent to have the appellant associated with him as administratrix.

      On the day appointed for an appraisal of the property the appellant, for the first time, claimed a large portion of the personal property, averring that it belonged to her and her sisters and brothers, under the will of their father, and refused to produce for appraisal a large portion of the personal property which the intestate had used in her lifetime, and the appella-nt'then used language to and concerning West, which was disrespectful, unbecoming and uncalled for, and not provoked by anything he said.

      Held, that these facts authorize the surrogate to revoke the letters of administration issued to the appellant:

      First. Under the authority so to do, conferred by subdivision 4 of section 2685 of the Code of Civil Procedure, authorizing him to revoke letters where the ■grant was “ obtained by a false suggestion of material facts;” or

      Second. Under the authority conferred by subdivision 2 thereof, on that by reason of “misconduct” in the execution of her office, the appellant was unfit for the due execution thereof.
    • Appeal from a decree of the surrogate of Oneida county, revoking letters of administration granted to Mary Reynolds Jones, who was appointed administratrix, in conjunction with Joseph E. West, who was appointed administrator of the goods, chattels and credits of Elizabeth R. West, deceased.
    The petition was filed and the pr oceedings instituted on April 4, 1884, .by Joseph E. West, who was the .husband and sole heir of the intestate. The petition stated that the intestate was the owner of large and valuable real estate in her own separate right and in fee simple, and of considerable personal property, “mostly in the .possession cof ¡said co-ad ministratrix.” It appears -that before the husband consented to the joinder of Mary R. Jones, there was a solicication that such consent should be given by one of her brothers, “ and upon his representation that there would be no conflict of interests as to said estate and upon the supposition that all the personal property of which said decedent died in possession was to be administered upon as her sole and separate estate; that he consented to the joinder of said sister in a spirit of amity, and in the hope and expectation that she would co-operate with him in the .settlement of said estate, and in the distribution, after the payment of debts and expenses, of .the proceeds of the personal property.” It appears that the husband had no notice or “ intimation of the conflicting claim ” at the time the appointment was made, and he first learned thereof about the time appointed for the appraisal of the personal property, when Mrs. Jones claimed that she and her brothers and sisters, in virtue of certain provisions in the will- of Richard Reynolds, their father, owned a large portion of the personal property in the possession of the deceased at the time of her death.
    Mrs. Jones refused to allow an appraisal to be made of a large part of the personal property which had been in the possession of the deceased, and served a written notice upon Mr. West, and upon the appraisers, to the effect that a large portion of the personal property which was in the possession of the deceased preceding her death was “ claimed by the executors of the last will and testament of Richard Reynolds, deceased, to be assets, to be administered and distributed under said will, and it is also claimed by the heirs-at-law and next of kin of said Richard Reynolds, deceased, and said- Elizabeth West, deceased, and her survivors, as belonging-to them, and both said executors and said heirs demand the possession of the same * * * as their exclusive and joint property. The undersigned verily believes that said personal property herein mentioned does belong- to said executors, or the said survivors, heirs-at-law and next of kin, and does not belong to or form any part of the estate of said Elizabeth-West, deceased, and should not be mentioned’ as such, and the undersigned does not nor will not present the same to said appraisers for appraisal, nor consent that the same- shall be so appraised, nor form any part of the- said estate of said Elizabeth West, and she forbids the same, both as administratrix of the estate of Elizabeth West and also as one of the survivors and heirs-at-law and next of kin of said deceased, and, further, as devisee under the will of Richard Reynolds, deceased.”
    When the appraisers and Mr. West sought to obtain possession of the personal property described in the notice from which the quotation has been made, a heated conversation took place, and, among other things, said Mrs. Jones accused Mr. West of having “ killed ” her sister.
    It appeared that in February, 1877, Richard Reynolds made his last will and testament, disposing of his property to Mary Jones, Jennie Hopkins, Elizabeth Reynolds, Margaret Whiting, Richard S. Reynolds and George A. Reynolds, his children.
    Subsequent to his death Mr. West intermarried with one of the children, viz.: Mary Reynolds, the intestate. When the petition was filed with, the suri’ogate of Oneida county, asking that the letters of administration issued to Mrs. Jones be revoked, a citation was issued, and she appeared upon the return of the citation and filed objections and made answer to the same, and set up a claim to a large portion of the personal property theretofore in the possession of her sister, the intestate. Numerous affidavits were produced before the surrogate on either side of the issue involved, and thereafter the surrogate ordered a reference to Mr. D. E. Wager, who took a large volume of evidence, and made his report to the surrogate on the 7th of January, 1885. On the 31st of January, 1885, a hearing was had before the surrogate. He ordered the matter referred back to the referee “ to pass upon and find all questions as the surrogate might have passed upon them if not referred,” and March 2, 1885, the referee made a supplemental report, in which he stated, among other things, viz.: In my opinion said Mary E. Jones should be removed and her letters of administration be revoked, under subdivision 1 of said section 2685 of the Code, upon the following grounds, viz.: Had Mrs. Jones, prior to and at the time of her appointment as administratrix as aforesaid, set up the same claim to this property that she afterwards did, she would not have been a proper person to have been appointed, and the surrogate would not have appointed her as administratrix (assuming objections had been taken on that point), as it would have been his duty to ap>point a person whose interest in and claims to the property were and are not adverse to and in conflict with those of the cesUíi que trust. As Mrs. Jones makes such claim subsequent to her appointment, and has thereby become incompetent and disqualified by law to act as such, and the ground of the objection did not exist and the objection, therefore, was not taken at the time of her appointment, she is brought within subdivision 1, which authorizes the revocation of her letters for matters occurring afterwards.
    The report of the referee, the evidence taken before him and the affidavits theretofore used in the pi’oceedings, were brought before the surrogate on the 16th of September, 1885, who granted the decree, which, among other things, provided, viz.: “ That the letters of administration granted to Mary E. Jones be revoked upon the ground and for the reasons set out and exposed in said two reports of said referee, and that the exceptions filed by Mary E. Jones be, and the same are, overruled.” The decree also required Mary R. Jones to account for all moneys and other property received by her, and upon such accounting the question of the right of said Mary E. Jones to any allowance, fees and expenses in these proceedings, and as to the amount of the same, and as to any other expenses was to be heard, determined and passed upon by the court.

      D. C. Stoddard, for Mary R. Jones, appellant.

      N. C. White and William Kernan, for Joseph E. West, as administrator, etc., petitioner and respondent.
   Hardin, P. J.:

■ West, the husband of the intestate, was entitled to letters of administration upon his deceased wife’s estate. About the time the surrogate was to grant letters of administration Mrs. Jones and her friends applied to West for his consent that Mrs. Jones be associated with him as administratrix, and a representation and statement were made to West that there would be no conflict of interest as to the estate, and in the interest of the establishment of peaceful relations between West and his sister-in-law, Mrs. Jones, he was induced,' upon such representations as were then made to him that there would be no conflict of interest, to consent that Mrs. Jones be associated with him as administratrix. As soon as the day for an appraisal was named an attempt was made to appraise the property of which the intestate died possessed. Mrs. J ones set up a claim to a large portion of the personal property, averring that it belonged to her and her sisters and brothers under the will of their father, Richard Reynolds, and Mrs. J ones refused to produce for appraisal a large portion of the personal property which the intestate had enjoyed the use of in her lifetime, and the referee finds that on the occasion of the attempt to appraise the property Mrs. Jones “became much excited and exhibited considerable spirit, feeling and temper towards petitioner, and used language towards, to and concerning him that was disrespectful, unbecoming and uncalled for, and not provoked by anything he said.”

A careful inspection of the evidence taken before the referee in the protracted hearings had before him, as well as the consideration of the matters disclosed in the affidavits used before the surrogate, lead'to the conclusion that the representations and suggestions made at the time that West was induced to consent that Mrs. Jones be associated with him as administratrix, were false and unfounded, and that the grant of letters to Mrs. Jones “was obtained by a false suggestion of a material fact.”

Under the Revised Statutes it was held that surrogates have power to revoke letters whenever it shall appear to them that they have been granted on or by reason of false representations made by the persons to whom the same were granted. (Perley v. Sands, 3 Edw. Ch. R., 325.)

Code of Civil Procedure, in section 2685, authorizes a creditor or person interested in an estate to present a petition to the surrogate from whom letters issue, and to aslc to have a decree revoking letters, viz.: “ Where the grant of hie letters was obtained by a false suggestion of material fact.” Under this provision of the section evidence was taken which was entirely sufficient to satisfy the surrogate that West’s consent “was obtained by a false suggestion of material fact.”

Notwithstanding the fact that Mrs. Jones, in her own behalf and in behalf of her sisters and brothers, claimed a large portion of the personal property under the will of their father, and that it did not pass to the intestate,, and that she was not the owner of it at the time of her death, she might have consented to the inventory of the property, with reasonable and suitable notice that she insisted that it did not belong to the intestate, but, on the contrary, she stubbornly refused to have it inventoried or appraised, and the evidence taken before the surrogate furnishes strong ground for the assertion that she has been guilty of misconduct in the execution of the office of administratrix, and an inspection of the evidence leads naturally to the conclusion that “ by reason of misconduct in the execution of her office she has become unfit for the due execution of the office.”

In section 2687 it is provided that, upon the return of a citation issued as prescribed in the last section, “ if the objections, or any of them, are established to the surrogate’s satisfaction, he must make a decree revoking the letters issued to the person complained of.”

We think the surrogate was called upon to determine somewhat summarily the issues presented to him. (McGregor v. Buel, 24 N. Y., 169 ; Matter of Chase, 32 Hun, 320.)

Without passing upon the question of whether the claim set up. by Mrs. Jones, in her own behalf and that of her brothers and sisters, was valid, or whether the personal property, which was the subject of dispute at the time the appraisers assembled, was the property of the intestate or not, we are of the opinion that the evidence abundantly supports the decree pronounced by the surrogate revoking letters of administration issued to Mrs. Jones. Evidently she intended then, and still intends, to dispute the title set up by the husband of the intestate to the property, a large- portion of the property found in the possession of the intestate. The determinar tion of the question in that regard need not be had on this occasion. We are of the opinion that the decree of the surrogate revoking letters of administration to Mrs. Jones should be sustained.

Decree of the surrogate of Oneida county revoking letters of administration to Mary K. Jones affirmed, with costs against the appellant.

BoaRDMáN and Follett, JJ., concurred.

Decree of the surrogate revoking letters of administration to-Mary R. Jones affirmed, with costs of this appeal against appellant, personally.


author: Hardin, P. J.: Boardman, J.:

text:
    HENRIETTA M. WILCOX, Appellant, v. ONONDAGA COUNTY SAVINGS BANK, Respondent.

      Deposit in a savings lank — what acts of the depositor are a ratification of the act of one who has drawn oat the money as her' agent — effect of a ly-lam protecting the lank in paying the checks of persons producing the pass-book.

    This action, was brought by the plaintiff, as the assignee of one Olive A. Wilcox, to recover moneys deposited' with the defendant, a savings bank, to the credit of “ Olive A. Wilcox, David J. Wilcox, agent.” The defendant in its answer-alleged that a pass-book was issued at the time the deposit was made, and that from time to time upon the presentation of the pass-book and the written receipt, order, check or other written request of said Olive A. Wilcox, personally, or of said Olive A. Wilcox by David J. Wilcox, agent, accompanying the same, the whole amount of said deposits was paid out by the bank, and that in making such payments it exercised due care and diligence m the effort to ascertain as to tire genuineness of the written checks or order. It also alleged that during the, whole existence of the said account David J. Wilcox was the husband and agent in fact of Olive, and as such duly authorized and empowered to draw and receive all sums so paid on said account. Upon the trial before a referee the defendant was allowed to amend its answer by setting up a general denial.

      Eeld, that it was proper for the referee to allow this amendment to be made.
    The referee found that the moneys had been deposited and drawn out by David Wilcox, as the agent of Olive; that the pass-book had been twice written up and the balances entered and carried forward; that prior and -subsequent to the time of the entry of these balances the book was in the possession of the said Olive and also of the said David; that on or about April 17, 1880, the balance was drawn out by David, redeposited to his own account and subsequently drawn therefrom by him; that a portion at least of the money so drawn out was applied and used in Olive’s business.

      Held, that those facts showed a ratification by Olive of the authority of David to draw, and of the bank to pay the money.
    That as the facts in this case authorized a finding that the defendant had not been guilty of negligence in making the payments, the bank was also protected from the claim of Olive by a regulation contained in its by-laws providing that “ the treasurer will endeavor to prevent frauds, and all payments made to persons producing the pass-book shall be valid payments and shall discharge the bank from any further liability.”
    Appeal from a judgment, entered in Oswego county, upon tbe report of a referee dismissing the plaintiff’s complaint, with costs.
    The action was brought upon certain demands alleged to have been assigned to the plaintiff by Olive A. Wilcox.
    The complaint alleges that “ during .the years 1878, 1879, 1880 and 1881, Olive A. Wilcox deposited in the defendant’s bank and with the defendant, and it collected and received for her $1,000 in money.”
    The original answer, among other things, alleged that at the opening of an account with the defendant a pass-book was issued to the depositor, wherein was entered the credits, and it was alleged that an agreement was made at the time an account was opened to the effect “ that said defendant might and should, from time to time, pay to any person presenting the pass-book the whole or any part of any sum remaining to the credit of said account, as the ■same might be demanded in accordance with the rules and regulations of said bank for the conduct of its business, which said rules and regulations were well known and assented to by said depositor, * * * and from time to time upon the presentation of said, pass-book and the written receipt, order, check or other written request of said Olive A. Wilcox personally, or of said Olive A. Wilcox by David J'. Wilcox, agent, accompanying the same, the whole amount of said deposits was paid out by said bank, and defendant avers that upon each and every one of the several occasions of such payment, it exercised due care and diligence in the effort to ascertain as to the genuineness of the written checks, order or receipt.”
    The said original answer also alleged “ that during the whole existence of said account, and- until the same was wholly paid and ■ settled, said David J. Wilcox was the husband and the agent in fact of said Olive A. Wilcox, and as such was duly authorized and empowered to draw and receive all sums paid upon said account on his request.”
    The answer also alleged that the defendant had paid all of the deposits.
    The referee found among other facts the following, viz.: “ That David J. Wilcox up to and including April 17, 1880, was her agent and authorized, on presentation of the pass-book, to draw out the money deposited to her credit; that on the 15th day of October, 1878, Olive A. Wilcox, by David J. Wilcox, deposited with the defendant two thousand dollars, and took a pass-book in which the money was credited ‘ Olive A. Wilcox, David J. Wilcox, agent;’ that subsequent deposits ‘ were made in the same way and credited on the same book, mostly by David J. Wilcox;5 that the money was mostly drawn on orders made by D. J. Wilcox as agent, and paid on presentation of the book and entered thereon ; that the book was written up August 30, 1879, and a balance carried forward of $1,067.41; that the book was again written up in January, 1880, and the balance stated, entered and carried forward at $671.74; that both prior and subsequent to the entry of this balance the book was in the possession of said Olive A. Wilcox ; that the book was also in the possession of David J. Wilcox, both prior and subsequent to these entries; that on or about the 6th of April, 1880, the book was written up and the balance of $536.36 carried forward ; that on or about the 17th of April, 1880, there is a credit to the amount of $3.84 for interest and on that day David J. Wilcox, as agent, drew out the whole balance ($560.20) and the account was closed and the book surrendered; that on the same day, April seventeenth, the same sum of $560.20 was credited to David J. Wilcox, personally; that such amount remained to the credit of David J. Wilcox until after the 23d of April, 1881, and was thereafter drawn out by him and paid to him by defendant.” He also found “ that the entries in the book and the fact that the book was twice written up and balance struck without any objection on the part of Olive A. Wilcox as to the payment in fact or as to the form of the checks and orders, was a ratification in fact of the authority of David J. Wilcox to draw out the money and of the payment to him by the bank ” and “ that a portion of the money, at least, drawn by David J. Wilcox, was applied and used in Olive A. Wilcox’s business.”

      George W. Bradner, for the appellant.

      C. L. Stone, for the respondent.
   Hardin, P. J.:

On the second day of the hearing before the referee the defendant “ asked to amend his answer by setting up a general denial.” Caso was then adjourned, and the defendant moved to have this amended answer allowed, or be allowed to serve it. Thereupon the plaintiff objected on the ground that it set up a new defense and that the referee had- no power to allow it, and further, that the amendment would change the position of parties. Thereupon the referee allowed the amendment, and the plaintiff took an exception.

In considering this exception it must be borne in mind that the original answer to the complaint, which demanded an accounting, contained averments to the effect that the defendant had paid up all the moneys it had received from Olive A. Wilcox, or David J. Wilcox as her agent, or otherwise, when she made the complaint. Such averments were repeated in the amended answer, and it also-contained denials of any indebtedness on the part of the defendant.

Section 1018 of the Code of Civil Procedure, provides, viz.: Hpon the trial of an issue of fact the referee exercises also the same power, as the court to allow amendments to the summons or to the pleadings.” The effect of this provision is to give to the referee before whom an issue of fact is being tried the same power as the court possesses in respect to amendments.

The section from Which we have quoted confers the power upon a referee to allow an amendment, such as was allowed in this case. (Knapp v. Fowler, 26 Hun, 200.) We are of the opinion that the referee did not exceed his power or abuse his discretion in the premises, and that there is no force in the exception taken to his ruling. (Knapp v. Fowler, supra ; Peyser v. Wendt, 87 N. Y., 322.)

The case of Bockes v. Lansing (74 N. Y., 437), referred to by the appellant’s counsel is unlike the one before us. That was a case where the court held that the referee had no power to change a cause of action from “ one for equitable relief to one in ejectment.” If such an amendment had been made the cause would have been triable by a jury and not by a referee.

In Conway v. Mayor (8 Daly, 306) it was held that the court upon the trial has power to amend the complaint by striking out an admission contained therein.

In Howard v. Johnson (82 N. Y., 271) the defendant was allowed to amend his answer on the trial by setting up an overpayment to the plaintiff on the contract in suit, and demanding judgment for the amount of the same.

Joslyn v. Joslyn (9 Hun, 388), cited by the appellant’s counsel, Is inapplicable to the question now before us. It is a case which -arose and was decided under section 173 of the old Code, and it was ■there held that the referee did not possess the power to allow a ■complaint to be amended upon the trial so as “ to convert the action for use and occupation” by one tenant in common “into the action for an account for money had and received authorized by the Revised Statutes.”

It is claimed by the appellant that the referee erred in allowing Dawson, the treasurer of the defendant, who was called as a witness, to produce the bank ledger and state what the account contained therein respecting the transactions referred to in the pleadings in this case. We think the evidence was entirely competent as bearing upon the question of the manner in which the accounts were kept, and for the purpose of ascertaining the several items thereof and the dates when moneys had been received and disbursed by the defendant.

The real question between the parties was not as to the amount •of money received by the defendant or the amount of money disbursed by it. It was whether the disbursement by the defendant was binding upon plaintiff’s assignor. The case is, therefore, different from Ocean National Bank v. Carll (55 N. Y., 440). In White v. Ambler (8 N. Y., 170) the boohs of the bank were relied upon as evidence that the account of the defendant was overdrawn» That case differs from the one before us.

We are of the opinion that there was evidence warranting the referee in finding that David J. Wilcox was the agent of his wife Olive, and that she allowed the bank to act in the faith that he was her agent, and that she ratified numerous acts performed by him in the course of such agency, and that she and her assignee were concluded from disputing his authority to receive the moneys from the bank. Ilis wife received and used some of the moneys that came from the bank through his hands. She had possession of the passbook after it contained numerous entries of moneys drawn by him as her agent and entered in the pass-book.

We think, therefore, the referee was warranted in concluding upon the evidence that there was an authority on the part of David J. Wilcox to withdraw the moneys from the defendant as the agent of his wife. Besides, when the plaintiff’s assignor received the passbook among the by-laws printed therein was the following, viz.: The treasurer will endeavor to prevent frauds, and all payments made to persons producing the pass-book shall be valid payments and shall discharge the bank from any further liabilities. No depositor shall be entitled to withdraw any principal or interest without producing the original pass-book and having the amount entered therein.” This by-law became a part of the contract between the depositor and the bank, and the depositor was chargeable with notice thereof. Whether or not the defendant had been guilty of negligence in the premises, whether or not it had used “ endeavor to prevent frauds ” to the extent required in the by-law from which we have quoted, were questions of fact for the referee upon all the evidence bearing upon these questions. His finding is favorable to the defendant. Such questions were eminently' questions of fact for the judgment of the referee upon a careful consideration of all the circumstances and testimony disclosed. His finding seems tobe in accordance with the weight of evidence upon that subject. We ought, therefore, to accept it. It comes, therefore, to this: that the defendant paid the moneys, having used this endeavor to prevent frauds, and having been guilty of no negligence in the premises. (Allen v. Williamsburgh Savings Bank, 69 N. Y., 314.) In that case the payment was not upheld under the by-law, for the reason that there were some circumstances which the court thought were such as would necessarily excite suspicion and inquiry,” and in that ease the jury found, under the conditions of the by-law, that the defendant had not discharged its full duty, and, therefore, the by-law did not stand as a ¡protection to the bank. Near the close of Judge Folger’s opinion in that case, he states the doctrines which we deem eminently applicable to the case now in hand, and says, viz.: “ We hold that, in the absence of any rules assented to by its customers, a savings bank is to be governed by the same legal principles which apply to other moneyed institutions. When it has prescribed rules, and its depositor has assented to them, they are the agreement, and each party must keep it to preserve rights against the other. The extent of the duty which the savings bank is under will in some degree be measured by the strictness or extent of the rules it has put upon itself. Ordinarily, it is bound to the exercise of reasonable care and diligence, which will be a question of law or of fact, as the proofs are conclusive and undisputed or debatable and conflicting.” The latter case was approved, and the doctrine which we have quoted therefrom restated in Boone v. The Citizens' Savings Bank (84 N. Y., 83).

In chapter 371 of the Laws of 1875, providing for the organization of savings banks and the administration of their affairs, authority is given to the board of trustees to prescrme such regulations in respect to the repayment of deposits as the board of trustees shall deem advisable, and for the printing of the same in pass-books or other evidence of deposit furnished by the corporation,” and it is therein provided that such regulations shall be evidence between the corporation and the depositors holding the same of the terms upon which the deposits therein acknowledged are made.”

In The People v. The Third Avenue Savings Bank (98 N. Y. 663) it was again held that where a payment has been made by a savings bank, with due care and diligence, to the one presenting the deposit book, such payment being made in pursuance of the by-laws and regulations under which the deposit was received, that it was effectual, citing with approbation Appleby v. Erie County Savings Bank (62 N. Y., 12) and Allen v. Williamsburg Savings Bank (69 id., 314).

We are of the opinion that the referee disposed of the issues properly, and that the exceptions to his rulings in respect to the admission and rejection of evidence, present no prejudicial errors. (See Code of Civ. Pro., § 1003.)

The judgment should be affirmed, with costs.

Boardman, J.:

The pass-book on which the moneys were credited having been issued to “ Olive A. Wilcox, David J. Wilcox, agent,” to the knowledge of Olive it was a recognition of David J. Wilcox’s authority to draw the funds from the bank as agent, and such authority would continue until the form of the account was changed or the bank was notified that his agency was ended, or that his checks as agent should not be honored. I concur in the affirmance of the judgment.

Follett, J., concurred.

Judgment affirmed, with costs.


author: Boardman, J.:

text:
    S. AUGUSTA MUNDY, Respondent, v. ISAAC MUNSON and RICHARD H. HUNTINGTON, as Administrators, etc., and Others, Appellants.

      Equitable lien upon the properly of the grantor of an annuity —as against his creditors, the property upon which it is gimen must be descs'ibed with certainty.

    The plaintiff, the widow of one Pearson Mundy, brought this action to enforce an alleged equitable lien which she claimed to have acquired upon the real and personal property of the deceased under an ante-nuptial agreement entered into between the parties. By the ante-nuptial agreement Pearson agreed that he would by grant or by bequest devise or otherwise provide for and assure unto the plain, tiff, in case she should survive him, an annuity of $1,200, from and after hia decease,for and during her natural life.. The agreement further provides that the said party of the first part, Pearson, “does hereby promise, covenant and agree, that the same shall be, and the same is hereby made and constitutes a lien a/nd

      charge upon all the property and, estate, real and personal, of every name and nature, hind and description, which he ma/y own and to which he may he entitled at the time of his decease."

    The plaintiff agreed to accept the annuity in lieu of her dower, and of any distributive share in his estate, and to join in the conveyance of any real estate during his life, and after his death to release her claim to dower, or to a distributive share, to his heirs-at-law, next of kin, etc., upon the annuity being sufficiently secured. The estate of the deceased was not sufficient to discharge his debts.

      Meld, that the agreement did not give to the plaintiff any equitable lien, as against the creditors of Pearson, upon the property which he owned at the time of making the agreement, or at the time of his death, for the reason that it failed to designate, with the certainty which the law requires, the property.to be charged therewith.
    Appeal from a judgment of tbe Jefferson Special Term, adjudging a certain ante-nuptial agreement to be an equitable mortgage on all the real and personal property of which Pearson Mundy, defendants’ intestate, died seized, and directing a foreclosure and sale.
    The contract upon which the suit was brought by the widow of the intestate contained, among others, the following provisions : “ Now, therefore, the said party of the first par.t does hereby promise, covenant and agree, that immediately after the consummation of such intended marriage he will, by grant ■or by bequest, devise or otherwise provide for and assure unto the said party of the second pai’ty, in case she shall him survive, the payment of an annuity of $1,200 from and after the decease of the said party of the first part for and during the natural life of the said party of the second part, to be paid semi-annually.; that is to say, the sum of $600 at the end of each and every six months from and after the decease of the said party of the first part, during the life of the said party of the second part, and for the payment of said annuity the said party of the first part does hereby promise, covenant and agree, that the same shall be, and the same is hereby made and constitutes a lien and charge upon all the property and estate, real and personal of every name and nature, kind and description which he may own and to which he may be entitled at the time of his decease.
    In consideration thereof, the said party of the second part hereby promises, covenants and agrees, that she will and hereby does accept of such annuity, to be secured and paid to her as above provided, in lieu of all dower and dower interest in tbe estate of tbe said party of tbe first part, and in lieu of any, all and every distributive share and shares to which she might otherwise by law be entitled. And the said party of the second part, in consideration aforesaid, does hereby further p2’omise, covenant and agree that at any and all times on request of the said party of the first part, she will join with him in the conveyance of any and all real estate he may desire to convey during his life, and to duly execute and acknowledge all such conveyances as required by law, and that after the decease of the said party of the first part, and in case the said party of the second part shall him survive, and in case the payment of the annuity as above provided shall be sufficiently secured, that she, the said party of the second part, on request of the heirs-at-law, next of kin, legatees and devisees of said party of the first part, will duly release all dower and right of dower of, in and to the estate of the said party of the first part and all and every distributive share to which she might otherwise be entitled.”

      Watson M. Rogers, for the appellants, Munson and Huntington.

      Dor win d? Brown, for the appellant, Norris W. Mundy, trustee, etc.

      George S. Hoolcer, for the respondent.
   Boardman, J.:

Two questions are presented by the opinion of the learned justice at Special Term, which go to the plaintiff’s right of recovery to the extent and in the manner provided for in the judgment appealed from. It is conceded that the plaintiff has a valid cause of action against the estate of the deceased under the ante-nuptial contract, but it is denied that she has any equitable lien, and her claim to priority of payment over the general creditors of the estate- is also denied. When the contract was made in 1873, the defendant’s intestate was in independent circumstances, but at his death, in 1885, he was insolvent and unable to pay his debts. The contest, therefore, is one between the plaintiff in her own right and the defendants as representatives of the other general creditors. If the plaintiff prevails, she will take all the assets, real and personal, belonging to the estate. If she fail, tbe assets remaining will be divided between her and tbe general creditors in proportion to their respective claims. If no equitable lien was created by the terms of the contract upon the property of which intestate died seized, the plaintiff would certainly acquire no rights superior to those of the general creditors.

Did she acquire an equitable lien by virtue of the contract ? If the estate had been solvent no such question could have arisen, because as to the heirs-at-law and next of kin the contract is valid and could be enforced. But as against the general creditors, she must have acquired an equitable lien under the contract to entitle her to priority in payment. Such lien, if existing, must have been created by the contract, because by the seventh and eighth findings of fact it appears that nothing was ever afterwards done to establish or create it. She acquired no lien in presentí. The intestate, during his lifetime, was at liberty to sell and convey any or all of his property. The contract so provides. She does not even agree to release her right of dower to the lands of which the husband shall die seized, unless the payment of the annuity shall thereafter be satisfactorily secured. As that has never been done; she is still entitled to dower in his estate. The contract in this and other provisions contemplates that other and further action is to be taken to secure the annuity, which was never done. If the case rested here there would not be an equitable lien. But the contract further says: “And for the payment of said annuity the said party of the first part (the intestate) does hereby promise, covenant and agree, that the same shall be and the same is hereby made and constitutes a lien and charge upon all the property and estate, real and "personal of every name and nature, kind and description, which he may own and to which he may be entitled at the time of his decease.” This language is very broad and comprehensive, but it does not create an equitable lien on any property. Clearly not in presentí upon property then owned by him, because such a construction is repugnant to other provisions, giving him the absolute right of disposition of such property. Can it charge such property as he may have possessed at his death ? We are of the opinion that it cannot. The charge or lien must have taken effect, if at all, at the date of the contract, and must plainly designate the property charged. In the present ease that was impossible. The property to be charged was not known to the contracting parties. The intestate may not then have owned it. It was utterly uncertain what property, if any, he Would own at his death. The contract could not have been enforced specifically as to such property in his lifetime, because the court could not possibly ascertain the property to be bound by its decree. If the property had been then owned by him and described the equitable lien would have attached. This is conceded by the appellants. But it does not appear that the property owned by the intestate at his death was owned by him twelve years before when this contract was made. It was wholly uncertain whether property owned by him in 1873 would remain his at his death. Between the parties to the contract there was no obligation to retain it. As to such property the intestate owed no duty to the plaintiff. We apprehend this does not constitute that decree of certainty in designating the property to be charged, which the law requires. This conclusion is sustained by Freemoult v. Dedire (1 Peere Williams R., 429); Williams v. Lucas (2 Cox’s Cas., 160); Seymour v. Railroad Company (14 How. Pr., 531, 537); Winslow v. Merchants’ Insurance Company (4 Metc., 306); Otis v. Sill (8 Barb., 102). It is not enough that at some future time the descriptions will become certain. (2 Story’s Eq. Jur., § 1249 and note.)

It must not be forgotten that, as against the party himself, his heirs-at-law and those claiming under him voluntarily, such an agreement may raise a trust which will be enforced in equity. But, as to purchasers and others acting in good faith and without notice, a diffm-ent rule applies. The cases cited by the learned justice at Special Term do not seem to us to justify his decision. In Payne v. Wilson (74 N. Y., 348) an imperfect mortgage was declared an equitable lien as against a mechanic’s lien thereafter filed against the property, because, when filed, it was affected by all outstanding equities then existing. Until the lien was filed the equities of the mechanic were no greater than those of the general creditors. In Husted v. Ingraham (75 N. Y., 251) an equitable lien for the price of personal property imperfectly secured and in a manner at variance with the contract was enforced against the receiver of the debtors. The receiver stood in the place of the debtors and took only sucb title as the debtors possessed. In Chase v. Peck (21 N. Y., 581) there was an equitable lien upon the specific real estate evidenced by a contract. It was bold that the agreement constituted an equitable mortgage upon the land, and that a judgment creditor purchasing the land under execution took subject to the equitable mortgage. In all of these cases the subject of the lien was clear and distinct, and made so by the instruments creating the lien. In no case did the element of uncertainty exist. For these reasons we conclude that no equitable lien was created by the contract by reason of its failure to designate with that certainty, which the law requires the property to be charged therewith.

• There are other questions necessarily arising on the facts as found at Special Term, among which may be suggested the following: Should it have been made out that the property owned at his death was owned by him when the contract was made ? If not so owned could it be held that such after acquired property was so far in expectancy as to be capable of being included in or designated by the contract ? Is an instrument, which by the bare force óf a contract can have no force or operation until after the death of the party, testamentary in its character where an adequate, consideration exists? Have the general creditors of a deceased person an equitable lien upon the property of the deceased, who was insolvent, equal to that of an equitable lien which takes effect also on the death of the party, the creditors having no notice of its existence ? These and other questions we deem it unnecessary to consider in view of the conclusion reached upon the point first discussed-.

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

HardiN, P. J., and Follett, J., concurred.

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


author: Boardman, J.: Hardin, P. J.:

text:
    JOHN P. HIER, Respondent, v. THE NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, THEODORE HOUSTON and HORACE RUSSELL, its Receivers, Appellants.

      Conveyance of a lot by reference to a map — rights acquired by the grantee in streets appea/ring thereon — when such rights do not extend to portions of the streets beyond the parts immediately bounding the block in which the lot is situated.

    In 1858 the State of New York caused its lands lying north' of Church street and west of Salina street, in the city of Syracuse, to he mapped for sale by B. F. Green, and copies of such map to he filed in the office of the state engineer and surveyor, and in the office of the clerk of Onondaga county. Thereafter the people of the State conveyed by letters patent lots 1 and 2, in block 8, as the same had been surveyed and were described in the said map of the said lands, to the plaintiff’s grantor. The lots are situated on the south-east corner of Olive and Wallace streets. At about 240 feet east of Wallace street, and 150 feet east of the east line of the plaintiff’s property, Olive street is crossed by Franklin street, which runs north and south, and is again crossed by Clinton street,- at a point about 300 feet east of Franklin street.
    The defendant acquired title to the block fronting on Olive street, between Franklin and Clinton streets. The whole of thasaid block is used by it for a depot, and the whole of Olive street, between Franklin and Clinton streets, is substantially occupied by it so as to be practically impassable for teams, this obstruction of the street being authorized by the legislature and the city of Syracuse in so far as they had power so to do. The situation of the plaintiff’s promises was such as to permit of access to them over Wallace street without obstruction, and the obstruction of Olive street by the defendant was merely an inconvenience in one of the several ways of approach to the plaintiff’s premises.

      Hetd, that the plaintiff acquired no interest in that portion of Olive street, lying east of the block in which his lots were situated, which authorized him to maintain an action to recover damages for the obstruction of that portion of the street, or to enjoin the defendant from obstructing the same.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to restrain the defendant from obstructing a street in the city of Syracuse.
    The court found that in the year 1853 the State of New York caused its lands lying north of Church street and west of Salina street, in the city of Syracuse, in the Onondaga Salt Springs Reservation, to be mapped for sale by B. F. Green, then city surveyor and engineer, and said map to be filed in the office of the state engineer and surveyor, and a copy thereof in the clerk’s office of the county of Onondaga, N. Y., on the 5th day of May, 1843. That the people of the State of New York, hy letters patent dated December 29, 1865, and May 9, 1878, conveyed to the plaintiffs grantor lots 1 and 2 in block 8 of the lands lying north of Church street and west of Salina street, in the city of Syracuse, in the Onondaga Salt Springs Reservation, as the same has been surveyed and are described on the map of said lands made in 1853 by B. F. Green, on file in the office of the state engineer and surveyor, recorded in Onondaga county clerk’s office July 10, 1878, in Book of Deeds 225, page 100; that by conveyances duly recorded in the said Onondaga county clerk’s office, said lots 1 and 2, in said block 8, with the appurtenances, and according to said map made and filed by said B. F. Green in 1853, were conveyed to the plaintiff JohnP. Hier, his deed bearing date September 10, 1878, consideration expressed, $4,500 ; recorded in the clerk’s office of the county of Onondaga, N. Y., September 12, 1878; that said Hier took possession of said • lots 1 and 2, in said block 8, and erected eight houses thereon as dwellings, prior to the obstructing of Olive street by the defendant railway company; that said Olive street was used by plaintiff and his tenants and servants for ingress and egress to his said lots and dwelling-houses prior to the obstructing of Olive street by the defendant railway company; that plaintiff has a right of .way over said Olive street for ingress and egress to his said lots and dwellings, and so has had since his conveyance in 1878. That the plaintiff’s premises were and are situated on the south-east corner of Olive and Wallace streets, in such a manner as to permit access to them over Wallace street without obstruction. Franklin street crosses Olive street about 240 feet east from Wallace street, and about 150 feet from the easterly margin of plaintiff’s property. Clinton street crosses Olive street about 300 feet easterly from Franklin street.
    That the defendant the New York, West Shore and Buffalo Railway Company, in the construction of its railway, went in and upon said Olive street, andón said Olive street, particularly between Clinton and Franklin streets, and raised the grade of said Olive street from two to three feet, and placed its ties and rails thereon and across said Olive street in its usually traveled route, so as to practically close said • Olive street to travel tbereon, prior to tlie commencement of this action, without plaintiff’s consent or appraisal or payment of damages.
    That the railway company’s depot building occupies the whole block between Franklin and Clinton streets facing on Olive street, and the whole of Olive street between Franklin and Clinton streets facing on Olive street is substantially occupied by the railroad company, so as to be practically impassable for teams. The tracks, as they pass westerly of Franklin street, leave Olive street in front of plaintiff’s property substantially unobstructed, bearing off to the north of Olive street. The obstructions in Olive street complained of are in that part of the street between Clinton street and the westerly side of Franklin street. The depot building is situate back south-easterly from Olive street about 100 feet, and behind this depot building the railway company have left a space open for the use of the public, from Franklin to Clinton street, fifty feet wide. Noxon street lies south and about 300 feet from Olive street, so that there is a passage from plaintiff’s property to Salina street in various ways, including the fifty feet passage-way behind the depot building, but not along Olive street, between Franklin and Clinton streets. That before commencing this action the plaintiff herein-requested the said railway company to restore said Olive street, as near as possible, to its former condition, which said defendant did not do ; that plaintiff has sustained damages by reason of the acts of said defendant, said railway company, in the sum of $800.
    The only title which the plaintiff ever acquired or claims to the bous in quo, whereon the obstructions complained of exist, or ever existed, is that which accrued to him by virtue of the deed from his grantors of said lots 1 and 2 of block 8. The obstructions complained of are authorized by the legislature and by the city of Syracuse and its common council, so far as the said legislature, the city and the common council had the power to authorize the construction of said defendant’s railway over Olive street.

      Waters dh McLennan, for the appellants.

      Hwnt, Leamenworth <& Everson, for the respondent.
   Boardman, J.:

The plaintiff is the owner of lots in block 8 facing on Olive street, situate between Wallace and Franklin streets. The defendant’s road crosses Olive street on an adjoining block P. B., between Franklin and Clinton streets, nowhere touching.the plaintiff’s premises. At the point of crossing Olive street, and opposite block P. B., the defendant by its depot obstructs Olive street. Such obstruction prevents the free use of Olivo street as a public highway opposite block P. B. Olive street for a considerable distance is a public street by dedication, acceptance and user. Plaintiff’s lots abut on and by his deed are bounded by said' street. The plaintiff claims that he has a. ■right of way over the wholedength of Oli ve street, which constitutes an easement appurtenant to his lots, and that by reason of such obstruction such easement has been obstructed and the value of his lots-impaired. The action is brought to recover such damages, or in default therefor an injunction against such use. This appeal is brought to review a judgment in favor of the plaintiff, giving him the relief demanded.

Had the plaintiff any easement appurtenant to his lots, in that portion of Olive street between Franklin and Clinton streets, beyond what the public possessed ? As to the portion of Olive street in front of plaintiff’s lots, and between Wallace and Franklin streets,, no question is made.

The defendant’s rights to obstruct Olive street opposite block P. B., are derived from the laws of the State and from the city of Syracuse. (The laws of the State, chap. 300, Laws of 1835; Laws of 1850, chap. 140, § 28, sub. 5, as amended by Laws of 1864, chap. 582, § 1.) The language used by the legislature does not in terms-authorize the erection of buildings within a street, but it does contemplate the use of the street (chap. 133 of Laws of 1880; § 2. amending § 28, sub. 5 of chap. 140 of 1850), and in such a manner as to change the location of the .street with the consent of the corporation of a city. In the present case the city of Syracuse has given its consent to the crossing and the obstruction complained of. As against the rights of the public in Olive street the provisions of the law and the consent of the city have conferred upon the defendant the right to such use of the street as is now being made thereof, it being assumed that compensation has been made to the owners directly affected thereby. If the plaintiff has a legal title by way of easement on that portion of Olive street, he has-not been paid therefor, and whether he has or has not is the question to be determined. If the plaintiff has such an easement; for which pay may be demanded of the defendant, it will follow that every owner of land fronting on Olive street has a like interest and is equally entitled to be paid therefor If it be true of Olive street it must be true of every other public highway, because there is no distinction between a highway originating by dedication, acceptance and user and any other public highway. (Wash. on Easements, * 145, § 25; Mercer v. Pittsburgh, etc., R. R. Co., 36 Penn., 99.)

Plaintiff’s theory has not, we think, been the understanding of the profession, nor has such been the practice in acquiring title by right of eminent domain. The persons deemed legally interested by a railroad crossing are those, and those only, whose lands are directly within the line of the track. It has often been adjudged that such lands only suffer damages by the location of a railway track as are touched by it. Thus the owner of a lot in a city, not touched by it, may not recover damages, however much its location may be injured thereby. (Radcliff v. Mayor, etc., 4 Comst., 195.)

Put we are of the opinion that the plaintiff acquired no interest in Olive street beyond the general public (except a way by necessity), by reason of the description contained in his deed and reference to ■Green’s map. The conveyance does not purport to give any right in orto the street or along its course. (Wheelers. Clark, 58 N. Y., 267, 271, 272.) Nor would an easement pass as an appurtenant, unless it were directly necessary to the enjoyment of the estate •granted. A mere convenience is not enough to create a right or easement. (Ogden v. Jennings, 62 N. Y., 526, 531.) Here plaintiff •had free access to his lots by Wallace and Franklin streets, and hence there was no necessity, though there might be a convenience in using the obstructed portion of Olive street, opposite block P. B. (Voorhees v. Burchard, 55 N. Y., 98.)

The learned justice at the Special Term was embarrassed by the absence of any authority directly in point, and no such authority is now presented to us. But the case of Coster v. Mayor of Albany (43 N. Y., 399) is quite analogous. There a bridge and way, connecting a pier, on which plaintiff’s property was situated, with the main land, was taken up, but another way more circuitous and less convenient was left available for the plaintiff’s use. In an action brought to recover damages, for such removal, to plaintiff’s.property, tbe court says (p. 414): “ No part of tbe bridge was on tbe property of tbe plaintiffs. They bad no interest or right in it as property. There is left to tbe plaintiffs an approach to their property by tbe State street bridge, though less near, less easy, less commodious. Tbe damage to tbe plaintiffs’ property from this cause is entirely indirect and remote. * * * Over streets and highways tbe legislature has control, and may, when no private interests are involved or invaded, close them and altogether relinquish their use by the public. (People v. Kerr, 27 N. Y., 188-192.) And if in the exercise of this right a street be discontinued and the value of lands abutting on other parts of the street and on neighboring streets is lessened, it is not such an injury to the owner as to entitle him to damages.” (Smith v. City of Boston, 7 Cush., 254.)

In the last case Shaw, C. J., says: The inconvenience sustained by the petitioner,'if any, was not such an injury done him in his property as to entitle him to damages within the true intent of the law. Remote and contingent damages are not recoverable. * * * The petitioner has free access to all his lots by public streets. * * * Judge Folger proceeds to say of the injury in Coster’s case (p. 415), it is “ not the direct and immediate result of the removal of the bridge first mentioned. * * * Assuming that the statute did not, by some particular provision or phraseology, provide for the payment of consequential damages or such as may result to persons whose lands are not taken or immediately injured, the State would not have been liable for the damages claimed by the plaintiffs from the removal of this bridge, nor is the city liable.” (Radcliff Exrs. v. Mayor, 14 N. Y., 195.) To the same effect is Sixth Avenue Railroad Company v. Gilbert Elevated Railway Company (3 Abb. N. C., 398, 399). The case of Smith v. City of Boston (supra), seems particularly applicable to the present case. (Fearing v. Irwin, 55 N. Y., 486, 490.)

In Story v. Elevated Railway Company (90 N. Y., 122) and elsewhere, the damages sought to be recovered were for injuries to the plaintiffs’ property by the obstruction and use of the street immediately in front of his lands abutting thereon. They are not authority, •therefore, in this case. .

We "conclude, then, that the plaintiff has no right or interest in Olive street beyond the block on which he is situated and the streets bounding the same. "Whether the plaintiff has or can invoke any remedy in CQmmon with the general public for the removal of the obstructions, or whether the right of way or space for public use fifty feet wide from Clinton to Franklin streets in the rear of the depot provided by the defendant is an adequate equivalent for the loss of the use of Olive street in front of the depot, are questions-which we are not called upon to consider. It is enough to say that in our opinion the plaintiff has no private rights or interests in the part of the street obstructed by the defendant, which will entitle him to claim or recover damages from the defendant.

The judgment should be reversed, and judgment ordered for the defendant, with costs of the action and of this appeal.

Follett, J., concurred.

Hardin, P. J.:

I concur with the views expressed in the foregoing opinion. (See, also, Burnet v. Bagg, 67 Barb., 154; and Anderson v. Rochester, etc., R. R. Co., 9 How., 561.)

Judgment reversed, and judgment ordered for defendants, with costs of action and of this appeal.