author: Bockes, J.

text:
    LAWRENCE J. FITZGERALD, Plaintiff, v. CHARLES FULLER, Defendant.

      Sale of chattels — agreement that title shall not pass until paid for — when bona, fide purchaser not affected thereby.

    The plaintiff delivered wagons to one Hughson, not for his use, but that he might sell and deliver them and receive the price thereof, it being agreed, however, that the title of the wagons should not pass to Hughson until he had paid the plaintiff therefor.

      Held, that the title of a bona fide purchaser of the wagons, who had-paid full value therefor, and who was ignorant of the secret agreement between the plaintiff and Hughson, was not affected thereby.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendant.
    This action was brought to recover the value of a wagon alleged to have been converted by the defendant.
    On the 25th day of June,-1877, the plaintiff delivered to one K. A. Hughson, twenty wagons, and shipped them to him in four lots, under the provisions of the following written agreement :
    “Cortland, N. Y., June 25, 1877.
    “Received of the Cortland Wagon Company, of Cortland, N. Y., twenty wagons of their make. Said wagons to be returned to them within thirty days, at my expense, or to be returned to them upon demand, unless within thirty days from date I shall pay said company for said wagons, at the regular price list of 1877, of said company, less seventy-five dollars discount per wagon. It being expressly agreed and understood that said wagons and the title thereto shall be and remain in said company until they are fully paid for.
    “K. A. HUGHSON.”
    The wagon in question, which was one of the twenty thus delivered to Hughson, under the above contract, had been sold by him to. George H. Clark, from whom defendant claimed to hold it as bailee.

      Palmer & Huntington, for the plaintiff.

      J). A. Johnson, for the defendant.
   Bockes, J.

The case was given to the jury upon the proper theory for its just disposition.

By the writing given by Hughson to the plaintiff, the wagons were, it is true, to remain the property of the plaintiff until they were fully paid for. It was so expressly agreed in the paper. 'This would have protected the plaintiff in his property if there were no other understanding between them on the subject, and this would be so, even as against a bona fide purchaser from Hughson. (Cole v. Mann, 62 N. Y., 1; Austin v. Dye, 46 id., 500; Ballard v. Burgett, 40 id., 314.) But the jury have found upon sufficient evidence of the facts (1), that the plaintiff contemplated a sale of the wagons by Hughson to third parties and delivered them to him so to be sold ; and (2) that the defendant held the position of Clark, who was a bona fide purchaser from Hughson for full value. This case is, therefore, entirely different from those above cited; and with this difference, the learned judge was correct in saying that the secret agreement in regard to the title remaining in the plaintiff until the property was paid for, was of no importance. Judge Grover, in Ballard v. Burgett (supra), when examining this subject, placed stress upon the fact of a contemplated use and enjoyment of the ' property by the party entrusted with it, until he should make payment. So, in Cole v. Mann (supra) Judge Ratallo, when speaking of a case like this, where the property was delivered with authority to sell, or with an understanding that the party might sell, says, that this authority to sell might have au important bearing upon the rights of a bona fide purchaser to whom a sale and delivery should be made without notice of the limitations upon the vendor. In the case now under examination, there existed (giving effect to the verdict of the jury) just the distinction marked by Judge Grover and Judge Batallo, above noted. It was not intended that Hughson should retain the use and enjoyment of the property until the plaintiff was paid ; on the contrary, it was understood that he might sell the property, deliver it, and receive pay for it from the purchaser, and 'this is what he did do, as regards the-wagon, for which the recovery here was claimed. The purchaser had no notice of the limitation imposed upon Hughson in the-agreement between the latter and the plaintiff, but bought in good, faith, received delivery of the property, and paid full consideration. Therefore, in view of the just rule of law suggested by the-learned judges, and above referred to, the jury in this case were properly instructed, that if a man, owning property, delivers it to-a third person, and sends him forth to sell it, and to receive pay for it, no secret agreement between the former and him can affect. the right and title acquired by a purchaser from him, who buys in good faith, without notice of their agreement, and pays full consideration. In such case the purchaser will be protected against the claim of the original owner. This should be so upon the plainest principle of justice and right action. To allow the owner of property to send his agent abroad to sell it, and to receive-pay for it, with the purpose of reclaiming it from the purchaser in case the agent should not make return of the proceeds of sale, the-, purchaser having no notice of his intention to reclaim, would, if he should be allowed to succeed in his purpose against the purchaser, work a gross fraud upon the latter. The law will not. tolerate so great injustice.

The case was tried, on the part of the plaintiff upon the mistaken theory that the latter would be protected in his property under his agreement with Hughson until he was fully paid for it even as against the claim of a bona fide purchaser from Hughson: notwithstanding it was understood between the latter and the plaintiff that he might sell it,’ deliver it to the purchaser, and receive pay for it. The exceptions to the charge of the judge interposed by the plaintiff’s counsel, and the propositions embraced in the several requests to charge, were based upon the correctness of this theory. This theory, we have seen, is not sound in law, hence the exceptions to the charge, and to the refusals to charge as requested, present no good ground of error. The rights of the plaintiff were fully recognized in that branch of the charge, wherein, after stating the rule of law above considered, the learned judge said: “If you find, on the other hand, that it was the agreement and understanding that these wagons were to be held by Hughson for thirty days, and not to be sold until he had paid for them, and that Hughson, without the knowledge and consent of the plaintiff, scattered them, then, and in that case, the plaintiff will be entitled to recover.” This was a full, clear and just presentation of the question to the jury, with a view to the protection of the plaintiff’s rights.

It cannot be maintained that there was no evidence in the case on which the proposition challenged by the plaintiff’s counsel could rest. The evidence tended to show, and I concur with the jury in the opinion, that it did very manifestly show that the wagons were delivered by the plaintiff to Hughson, not for his own use, but that he should sell them, deliver them to purchasers and receive pay for them; and, further, that Clark bought the wagon in suit in good faith, without- notice of the agreement between the plaintiff and Hughson, and paid full value for it. T he verdict is well supported by the evidence.

It is urged that the court erred in excluding evidence that the fil m of Freeman & Farley was insolvent. This firm had purcb ased wagons of Hughson and had given the firm notes for them. It stood proved that the notes remained unpaid. This fact was not dii iputed, and this was all that could be of importance in the case.

It is also urged that there was error in excluding the evidence that the notes taken by Hughson on sales were made payable to the plaintiff. This proposed proof was wholly immaterial in this action.

It is further urged that the questions to the plaintiff, “ Did you expect to have to retake them ? ” and “ Did you expect Mr. Hugh-son would sell them ? ” (referring to the wagons delivered to Hughson) were improper. To the first question the witness answered, “ I don’t know,” and no answer was given to the second. There was nothing harmful either in the questions or the answer. Besides, there was no exception taken to either question or answer. The record discloses no ground of error.

It seems that, at the close of the trial, an order was made that the case and exceptions be heard in the first instance, at General Term. Regarding this as the condition of the case, the order should now be, that the motion for a new ti’ial, on the case and exceptions, be denied; and that the defendant have judgment on the verdict, with costs. But it appears that judgment was, in fact, entered ; and an appeal was taken from the judgment.

The order then should therefore now be, motion for a new trial, on the case and exceptions, denied, and judgment affirmed, with costs.

Learned, P. j., and Boardman, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    PATRICK ORGAN AND JOHN FARRELL, Appellants, v. EDWARD WALL, MALONA STEVENS, JOEL STEVENS, 2nd, AND ANNIS STEVENS, Surviving Partners of ROBERT R. STEVENS, Respondents.

      Judgment on firm note — bringing in other• persons, alleged to be partners, but not named in the original summons — summons to show cause why they should not be bound by the judgment — improper.

    August 12, 1872, a judgment was recovered against Edward Wall, as survivor of a firm composed of himself and Robert R. Stevens, on a firm note. The complaint alleged that Wall and Stevens had been partners; that Stevens was dead and that Wall was the sole survivor. On this judgment an execution was issued and partially collected. In 1878, on notice to Wall, the summons and complaint were amended by adding thereto the names of Malona Stevens, Joel Stevens, 2nd, and Annis Stevens, as surviving partners of the said firm. Thereafter, a summons was issued requiring the additional defendants to show cause why they should not be bound by the said judgment, entered in 1872, and amended by the order of January 7, 1878.

      Held, that the summons was irregularly issued and should be set aside.
    Appeal from an order made at Special Term, setting aside a summons issued herein.
    A judgment was recovered on the 12th day of August, 1872, by the plaintiffs, against Edward Wall, as the survivor of a firm composed of himself and Robert R. Stevens, on which an execution was issued and the judgment partially collected. The complaint alleged that Wall and Stevens were partners ; that Stevens was dead, and that Wall was the sole surviving partner. The action was on notes alleged to have been made by the firm.
    Thereafter, and in January 1878, on notice to Wall, the summons and complaint were amended, by an order of the court, by adding thereto the names of Malona Stevens, Joel Stevens 2nd, and Amiis Stevens as surviving partners of the said firm.
    In January, 1878, a summons was issued, entitled in favor of the plaintiffs against Edward Wall. Malona Stevens, Joel Stevens, 2nd, and Annis Stevens, surviving partners of Robert R. Stevens, requiring them to show cause why they should not be bound by dhe said judgment “amended by order of Justice Bockes, at Saratoga Special Term, of date, January 7, 1878, and filed and entered January, 9, 1878,” in the same manner as if they had been originally summoned therein.
    The defendants, Malona Stevens and Joel Stevens, thereupon moved to set aside this summons and the service thereof. In reply, the plaintiffs’ attorney makes an affidavit “That the amended summons and complaint, herein, named said Wall, Malona Stevens and Joel Stevens and others, defendants, as stated in the summons to show cause in this action. That the said amendment was made by special order of the court, on notice to said Wall, the-only defendant on whom the process was served.”
    The Special Term set aside the summons, and the plaintiffs appeal.

      F. F. Bullard, for the appellants.

      B. Q. Betts, for the respondents, Joel and Malena Stevens.
   Learned, P. J.:

This summons is issued under section 375, Old Code, having attached the affidavit required by section 378. It is very plain that the judgment, as originally recovered, would not authorize any such proceeding. For it was a judgment against one person only, and not against “ one or more of several persons jointly indebted.” The judgment was against Wall, solely. Execution was issued against him, and something was collected. Besides, the judgment must bo one recovered by proceeding, as provided in section 136, Old Code. And this proceeding can be had only when the action is against two or more defendants.

But the plaintiff claims that, by an order obtained by him, six years after the judgment, the amended summons and complaint names other defendants. By what right can that which was a judgment against one be turned into a judgment against several ? This is not an amendment to correct some clerical omission. But it is a change of the judgment itself. And, furthermore, the affidavit does not aver that there is now any “judgment against, one of several persons jointly indebted.” It does not appear that, there is any allegation in the complaint that the defendants are jointly indebted.

Under the decision in Lane v. Salter (51 N. Y., 1) the plaintiffs might have commenced an independent action against these defendants (Old Code, § 136, sub. 4), and they would not, as there held, be barred by the fact of a former recovery against one of such defendants.

The Old Code (§ 379) provides that the party, thus summoned to show cause under section 375, may make any defence which he might have made to the action, if the summons had been served upon him at the time when the same was originally commenced. It is possible, therefore, that the statute of limitations is no defence in this case, unless it would have been a defence when this action was commenced against Wall. Thus, we have this position, that no action in form, or otherwise, was commenced against these defendants before January, 1878. But then, by an order of the court, to which they were not parties, they are made to have been defendants to a suit in 1872. And they are summoned to show cause why they should not be bound by a judgment to which, even in form, they were not parties.

If the plaintiffs had chosen to act under section 453 of the New Code, and had obtained an order allowing them to bring in new defendants, then it would seem to have been necessary to vacate the original judgment and to issue a supplemental summons. This is not the course they have taken. This summons is not issued imder that section.

The order should be affirmed, with ten dollars costs and printing disbursements.

Bockes, J., dissented.

Present — Learned, P. J., Bockes and Boardman, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    E. CLARK CARLEY, as Executor, etc., of MARVIN BALCH, Deceased, Respondent, v. ALEXANDER HODGES, Appellant.

      Chap. 40 of 1848, § 12 —failure to file report — tmstees liable for then existing debts — right of a meditan''s exeoutcn's to enforce such personal liability.

    A failure to file the report required hy section 12 of chap. 40 of 1848, renders the-trustees liable for the debts then existing as well asfor those thereafter contracted.^ Where the failure to file the report occurs after the death of the creditor, the trustees are personally liable to his executor.

      California Hank v. Collins (5 Hun, 209), distinguished.
    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 recover a debt due from The Stillwater Cheese Manufacturing Company to the estate of Marvin Balch, the plaintiff’s testator. It was claimed that the defendant washable for said debt as a trustee of said corporation, because-of a failure to file the report required by section 12 of chap. 40 of 1848. The debt accrued in 1867. The failure to file the report occurred in the years 1877 and 1878. Balch died in 1874, leaving a will, by which the plaintiff was appointed executor.

      McDowell & Lewis, for the appellant.

      Wm. J. Mantanye, for the respondent.
   Learned, P. J.:

It is not disputed that the defendant had been a trustee of the manufacturing company from 1878 down to the time of the commencement of the action in 1878; and that, in 1877 and 1878, the report required by section 12, chap. 40, Laws of 1848 as amended, was not made. Since 1874 the plaintiff, as executor of one Balch, has been a creditor of the company.

The defendant insists that he is not liable; first, because he was not a trustee when the debt was contracted. The statute makes trustees, who are such when a failure to file the report occurs, liable as well for debts then existing as for those afterwards contracted. The defendant cites Shaler & Hall Company v. Bliss (27 N. Y., 297), and quotes the language : “ Only those who are ‘ trustees' when the debts are contracted come within these terms.” But the point there decided was only that one was not liable for debts contracted after he ceased to be a trustee. The case of Boughton v. Otis (21 N. Y., 261), also cited by the defendant, states that trustees are liable for debts existing while they are in default. And that rule applies to this case.

The defendant also insists that a right of action, on this statute, does not survive to the executor. (California Bank v. Collins, 5 Hun, 209.) Without accepting the correctness of that decision. (Pier v. George, 14. Hun, 568; Bolen v. Crosby, 49 N. Y., 187) we may say that it does not apply here. The default occurred after the death of the testator.

The plaintiff, as executor, was the owner of the debt; the debt was in existence when the default of the trustees occurred, and. the •defendant was then a trustee. It seems to us that he is liable.

The judgment is affirmed, with costs.

Present — Learned, P. J.; Bocees and Boardman, JJ.

Judgment affirmed, with costs.


text:
    WILLIAM RYAN, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Chap. 390 of 1879 — did not depñve Courts of Gem,eral Sessions of jurisdiction over pending indictments — Cross-examination of a witness — questions tending to degrade him— Irresponsive answer, 'stricken out — Effoi'ts of a prisoner to avoid airest — proof of, admissible.

    Chapter 390 of 1879, providing that Courts of Special Sessions “shall, in addition to the powers now possessed by them, have also exclusive jurisdiction, in the first instance, to hear and determine” certain offences, did not deprive a Court . of General Sessions of jurisdiction to try an indictment for one of said offences, pending in it at the time of the passag-e of the said act.
    ■One of the prisoner’s witnesses was asked, on cross-examiniation, if he had been indicted for assault and battery. An objection thereto was made by the pris•oner’s counsel and overruled by the court. Held, no error.

      "Where a witness adds to his answer an expression of his opinion, not responsive-to the question, it may "be properly stricken out on the motion of the party-putting it.
    The prisoner may he asked, on cross-examination, whether he made any effort to keep out of the .way of. the sheriff, as attempts, to escape or to avoid arrest, are "some evidence of a guilty conscience.
    Writ ok Error to the Court of Sessions of the county of Ulster, to review the conviction and sentence of the plaintiff in error of assault and battery.

      F. L. Westbrook, for the plaintiff in error.

      A. T. Clearwater, district attorney, for The People.
   Learned, P. J.:

It is not necessary, for the purposes of this case, to decida, whether or not chapter 390 of the Laws of 1879 is constitutional.

The language of the first section is, that Courts of Special Sessions “shall, in addition to the powers now possessed, have also exclusive jurisdiction,” etc. The use of the phrase, “ in addition to,” and of the word “also,” indicates that the primary object was to extend the jurisdiction to other classes of cases, rather than to deprive another court of a jurisdiction which it possessed, to try an indictment then pending therein. The decision in Gardner v. The People (62 N. Y., 299), where, in a statute similar to this, the word “exclusive” was held not tc. deprive the Court of General Sessions of the power to try' indictments, seems to apply to this case. We think, therefore, that the Court of Sessions had jurisdiction to try this indictment.

On a cross-examination of one of the prisoner’s witnesses, the Peoples’ counsel asked him if he had been indicted for assault and battery. The prisoner objected, and the court overruled the objection and the prisoner excepted. The point here presented does not involve the right of the prisoner, when himself a witness, as in People v. Brown (72 N. Y, 571). Nor does it involve the right of a witness to refuse to answer, when the answer will degrade him. The only point is, whether an objection, on the part of the prisoner, to a question of this kind, if overruled, is a ground of error. We think not. The extent to which inquiry shall be made as to the past life of a witness, with a view to show to the jury who and what he is, must be, to a great extent, a matter of discretion. (Real v. People, 42 N. Y., 270.) And this, too, even when the prisoner is the witness. (Brandon v. People, 42 N. Y., 265; Connors v. People, 50 id., 240; Southworth v. Bennett, 58 id., 659.)

Cases illustrating the rule that the admission of such evidence is no error are Maine v. People (9 Hun, 113); Vaughn v. Westover (2 id., 43); Stokes v. People (53 N. Y., 164); Russell v. St. Nicholas Fire (51 id., 643); Allen v. Bodine (6 Barb., 383).

The counsel for the prisoner insists that the finding of the indictment might be used to affect the character of the witness, though the indictment were afterwards quashed, or he were acquitted on the merits. The answer to this is, that the witness may always explain.

The witness, Hallihan, when asked a question, added to his answer an expression of his opinion. This was not responsive, and was properly stricken out on the motion of the district attorney. A witness has no right to thrust into a case improper evidence, which is not responsive to the question asked.

The prisoner, when cross-examined as a witness, was asked whether he made an effort to keep out of the way of the sheriff. Attempts to escape, or to avoid arrest, may be proved, as some evidence of a guilty conscience.

We see no error in the trial. The conviction and judgment must be affirmed.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment and conviction affirmed.


author: Bearned, P. J. :

text:
    CORNELIA M. STEWART, Plaintiff, v. CORNELIUS FONDA, ALEXANDER S. HAYS AND JOHN D. CURTIS, Defendants. HENRY HILTON, Plaintiff, v. SAME, Defendants.

      Jfon-resident land — when the owner cannot olrject that it is assessed to him, instead of to the occupant — proper?'form of assessing it.

    'The plaintiff, a resident of the city of New York, owned certain real estate situated in the village of Saratoga Springs, a portion of which was used as a hotel and the remainder underneath the hotel for stores. In 187<i, the property being then assessed to one A. T. Stewart, then deceased, the agent of the pjlaintiff, the plaintiff being the devisee and widow of the said Stewart, told the assessors to assess the same to her, which was done. In 1878 the agent of the plaintiff appeared before the assessors, Objected to their valuation of the property and examined witnesses in relation thereto. No objection was made to the form of the assessment, nor to the fact that the land was assessed to the plaintiff and not to the occupant. The land being assessed to the plaintiff, a tax was imposed upon her, and the amount thereof collected ■ by the seizure and sale of her property under a collector’s warrant. This action was brought to recover the amount thereof against the assessors, on the ground that the plaintiff being a non-resident they had no jurisdiction to impose a personal tax upon her.

      Held, that as the land was within the territorial jurisdiction of the assessors and liable to taxation, and as the plaintiff did not object to its being assessed to her instead of to the occupant, she could not now claim that the assessors were without jurisdiction in making such assessment, and hold them personally liable for the tax collected from her in virtue thereof.
    The proper form of assessing land, owned by a non-resident, on which is a hotel, with stores underneath occupied by tenants, considered.
    Motions for new trials on verdicts directed at the circuit, subject to the opinion of the court at General Term.
    These cases were considered together, the questions involved in each being the same.
    The actions were brought against the defendants on the ground that, as assessors of the town of Saratoga Springs, in 1878, they wrongfully assessed plaintiffs on their real estate in said town as resident taxpayers, instead of placing said real estate on the assessment-roll as non-resident lands, or assessing the same to the occupants thereof. No question was raised in either case but what the plaintiff was the owner of the real estate in question; that the same was situate in said town and properly assessable there. But it was insisted that it should htive been assessed as non-resident lands, the plaintiff in each case residing in the city of New York; and that, in consequence of its being assessed to plaintiffs as residents, warrants to collect the tax levied in pursuance of the assessment were issued to the collector and personal property of plaintiffs’ was sold to satisfy the tax. A portion of the property was. used for a hotel and the residue underneath the hotel for stores.
    It appeared, in each case, that in 1878 an agent of plaintiffs appeared before the assessors at the time they advertised, pursuant to law, for persons aggrieved to appear before them, and examined the assessment-roll then made out, and on which the real estate in question was then assessed to the plaintiffs, as residents, and then objected to the valuations of the property, but made no objection to the manner of the assessment.
    It further appeared that in 1876, the property being then assessed to A. T. Stewart, the agent of Cornelia M. Stewart (the plaintiff in the first suit, who was the devisee and widow of said Stewart), told the assessors to assess the property to her, which, was done.

      Charles 8. Lester, for the plaintiff.
    The action of the assessors resulted in a personal assessment against the plaintiff in the nature of a personal judgment. The plaintiff being a non-resident, the defendants had no jurisdiction of her person, and were only authorized to assess her lands in the manner provided by statute. For this unauthorized and illegal act the defendants are personally ■liable. (Whitney v. Thomas, 23 N. Y., 281; Sharp v. Spier, 4 Hill, 76; Doughty v. Hope, 1 Comst., 79; Merrill v. Village of Portahester, 71 N.- Y., 309; National Banlc of Chemung v. City of Elmira, 53 id., 49; Overing v. Foote, 65 id., 269; In re Second Avenue Church, 66 id., 395; Newmans. Supervisors of Livingston Co., 45 id., 676; 1878, chap. 153; 1851, chap. 176; IE. S. 387; Mygattv. Washburn, 15 N. Y., 316; Dorn v. Barker, 61 id., 261; Dorn v. Fox^ 61 id., 264; New York and Harlem JR. JR. Co. v. Lyon, 16 Barb., 651; Prosser v. Secor, 5 id., 607; Clark v. Nat'lon, 49 N. Y., 243; Darwin v. Strickland, 57 icl., 492; Palmer v. Laiorence,
      6 Lans., 282; Wade v. Matheson, 4 id., 158; Smith v. Shaw, 12 Johns., 257; Suydam v. Keyes, 13 id., 444; Cowen & Hill’s. Notes, 1002; In re Catholic Protectory, 20 Alb. Law J., 135.) The claim that the appearance before the assessors without making objection to their jurisdiction waived such objection and conferred jurisdiction on the assessors, and estopped .plaintiif from maintaining an action against the assessors is untenable. (Crawford v. Lockwood, 9 How. Pr., 550; Muller v. Pondit, 55 N. Y., 334; Brewster v. Striker, 2 Com., 19; Hutchins v. Hubbard, 34 N. Y., 24; Shapley v. Abbott, 42 id., 447; In re Faulkner, 4 Hill, 598; Phillips v. Allen, 8 B. & C., 477; Homan v. Brinkerhoff, 1 Denio, 184; Cadwell v. Colgate, 7 Barb., 253; Bissell v. Briggs, 9 Mass., 469; Pawling v. Birds Ex., 13 Johns., 206; Cuyler v. Trustees of Rochester, 12 W., 165; Starr v. Trustees of Rochester, 6 id., 564; Dudley v. Mahew, 3 Comst., 9; Buckley. Eckhart, id., 132; Oakley v. Aspinwall, id.,' 547; Beach v. Nixon, 5 Seld., 35; Ilamotl v. N. J. R. R. Co., 8 Abb., 284; Davis v. Packard, 7 Peters, 276; Jones v. Norwich and N. T. Co., 50 Barb., 193; Coffin v. Tracy, 3 Cai., 129; Blin v. Campbell, 14 Johns., 432; Woodward v. Paine, 15 id., 493; Preston v. The City of Boston, 12 Pick., 7; McCormick v. Pa. C. R. R. Co., 49 N. Y.,. 303; Bumstead v. Reed, 31 Barb., 661.)

      A. Pond, for the defendants.
    The duty imposed upon the assessors, and which they cannot escape, to decide the various questions arising in the course of their inquiries pertaining to the assessment, and to make up the assessment-roll therefrom, is manifestly judicial in its essence and nature, and therefore, an error, if one is committed by them in its performance, is a judicial error, for which they cannot be made or held personally liable in an action therefor. (1 R. S. at Large, p. 360; § 1; p. 363, § 8; p. 364, § 11; p. 365, § 17; Laws 1851, chap. 176, p. 332, § 1; p. 333, § 3; p. 334, § 8; Johnson v. Learn, 30 Barb., 616, 619; Van Rensselaer v. Witbeck, 7 Barb., 133, 137; Van Rensselaer v. Cottrel, id., 117, 129; S. O., affirmed, 1 Sel. Notes, 25; Western. R. R. Co. v. Nolan, 48 N. Y., 514, 518; Buff, and State Line R. R. Co. v. Suprs. Erie Co., id., 93, 99, 105; Foster v. Wyck, 41 How., 493, 496, 497; Barhydt v. Shepherd, 35 N. Y., 238;
      Swift v. Poughkeepsie, 37 id., 511, 514; Bank Com. v. Mayor, etc., 43 id., 184, 186; Weaver v. Williams, Ct. of App. [7 Week. Dig. 513]; Youmans v. Simmons, 7 Hun, 466; Horton v. Auchmoody, 7 Wend., 200, 203; Butler v. Potter, 17 Johns., 145; Voorhees v. Martin, 12 Barb., 508; Clark v. Holdridge, 58 id., 6.1, 71; Lange v. Benedict, 73 N. Y., 12, 36; Bradley v. Fisher, 13 Wall., 335, 353; Scott v. Stansfield, 3 L. R. Ex., 220; Calder v. Halket, 3 Moore’s P. C. Rep., 28; Lorillard v Town of Monroe, 12 Barb., 161, 167; Brown v. Smith, 24 id., 419, 422; Hunt v. Hunt, 72 N. Y., 217, 229, 230; King v. Poole, 36 Barb., 242, 245; Schaettler v. Gardiner, 47 N. Y., 404; Boderigas v. Fast River Savings Inst., 63 id., 460; Bumstead v. Reed, 31 Barb., 661, 667; Porter v. Purdy, 29 N. Y., 106, 111; People v. Liscamb, 60 id., 559, 568.)
   Bearned, P. J. :

The principle which holds an assessor personally liable, in certain cases, for his official acts to the party injured, is certainly hard, and ought not to be extended. The assessor is' obliged to act, and to act upon the facts as he can learn them by inquiry. (1 R. S., 390, § 8.) If, on such inquiry, the facts are presented to him in one form, and subsequently, in an action brought against him, a different state of facts is proved by evidence, seems to be unreasonable that he should suffer. He is not like some inferior officers, who act upon a written and sworn application, and who are to judge from that alone whether they have jurisdiction. But he must determine whether he has jurisdiction by “inquiry,” and is to act on the decision based thereon.

It is worth while, then, to examine the cases with some care, and to see what has been decided as to such liability.

In Dorn v. Backer (61 N. Y., 261), the plaintiff owned a farm dying partly in each of the two towns, of Ava and of Boonville. He occupied and worked the whole, and for some years had lived in Boonville, where he voted, and where his farm was taxsd. The assessors of Ava also assessed him for his farm, and collected the tax. He sued the assessor and was nonsuited by the court below. See 61 Barb., 597, where the facts appear. This was reversed by the Commission of Appeals. In this case, therefore, there were these facts : the property was not within the jurisdiction of the assessors (1 R. S., 389; § 4), and the plaintiff had been unjustly compelled to pay a double tax.

The case of the The National Bank v. The City of Elmira (53 N. Y., 49) was not an action against assessors.

In Mygatt v. Washburn (15 N. Y., 316), the plaintiff was-assessed for personal property in a town where he did not reside. He was also assessed and paid taxes in the town of his residence. This, then, is a case where the assessors had no jurisdiction of the person, and hence had no jurisdiction to assess his personal property. (1 R. S., 390, 391, §§ 8, 9, subd. 4.)

In Clark v. Norton (49 N. Y., 243), the assessor assessed th& plaintiff for personal property after the time when, by law, their roll was to be completed. Hence, then- jurisdiction had altogether expired.

In Dorwin v. Strickland (57 N. Y., 492) the assessor assessed for personal property a non-resident of the town, and was held liable for damages. Of the same nature are the cases of Palmer v. Lawrence (6 Lans., 282); Wade v. Matheson (4 Lans., 158), and Suydam v. Keys (13 Johns., 444).

Prosser v. Secor (5 Barb., 607) was the case of a recovery, where a minister of the gospel was assessed for personal property.

Thus, in all the cases of recovery against assessors, cited by the plaintiff, there has been an assessment against the personal property of a person not within the jurisdiction of the assessors, excepting the first case, in which the land assessed was, for the purpose of assessment, out of their jurisdiction, as if it had been out of their town.

Section 1, 1 R. S. (m. p. 387) declares that all lands and personal property shall be liable to taxation. The land in question was within the town where the defendants were assessors, and was within their jurisdiction; and it was their duty to assess it. (1 R. S., 390, § 8.) In that respect the present case differs from all those on which the plaintiff relies. The subject-matter was within the jurisdiction of the defendants.

It appears, then, that in 1876 this property had been assessed to A. T. Stewart, and that the agent of the plaintiff then told one of the assessors, when consulted by him for this purpose, that the property should be charged to the plaintiff. In pursuance of that information the assessment roll was made out. In 1878, when the assessment was made which is now complained of, the agent for the plaintiff appeared before the assessors in due season, and gave evidence and examined witnesses. All the evidence thus given was on the question of the value of the real estate thus assessed. No objection was made to the form of the assessment, or to the fact that the land was assessed to the plaintiff. The evidence thus produced states that the property assessed is the plaintiff's ; and, indeed, her ownership is undisputed.

Wo have, then, a case where the assessors had jurisdiction to assess the land, and where, therefore, they were to decide the questions of fact and law involved in making the assessment. They were, therefore, to determine the manner of making the assessment. And in this they acted judicially, as decided in Buff and State L. R. R. Co. v. Supervisors (48 N. Y., 93) ; and see p. 105, notes 23 ; and also Van Rensselaer v. Cottrell (7 Barb., 127) ; affirmed, 1 Selden Notes, 25.

In fact they assessed the land to the true owner. And certainly the owner of the land might prefer that it should be assessed directly to her, rather than to the occupant, or as non-resident land. That is a matter which concerned her only. The provisions as to assessing to the occupant, and the like, are intended, not to indicate that the owner is not the proper person to pay the tax, but to facilitate the collection thereof. That the owner is to pay the taxes is recognized by chapter 327, Laws of 1855, and by the equity doctrine of apportionment.

If, then, the owner of the land should appear before the assessors, and should-admit that she was a resident of the town, and request that the land owned by her in the town should be assessed to her as a resident, and if, in compliance with such admission, the assessors should thus assess the land, on what’ principle could she recover damages against them for their act ? To permit such a,recovery would be unjust. But, practically, this is what the plaintiff did. By the request of her agent, the property had been assessed to her. By his omission to object, she waived, as against these assessors, any right to complain of their acts. Volenti non fit injuria.

It is evident that no wish, that any other manner of assessment .should be followed, was hinted at by her. No wrong has, in fact, been done to the plaintiff. She has not been assessed in two places on the same property ; she has not been assessed in property not taxable ; she has paid taxes on her own property ; and that is what she ought to do. And the whole case loóles as if it were intended merely for revenge on the assessors for not reducing the valuation of the property as she desired. Courts .ought not to aid such an attempt to punish these, and to hold a. rod over futui-e assessors.

The case of Preston v. Boston (12 Pick., 7) is cited by the plaintiff to show that are quest to assessors to assess a person in one place, does not give jurisdiction. That differs from the present in two respects. It was not an action against the assessors; and it was an assessment for a poll tax. There was no property to give jurisdiction.

The recent and well-known case of Lange v. Benedict (73 N. Y., 12) seems to show that the act of an officer may be void, and yet not always render him civilly liable. And, therefore, the decisions in Whitney v. Thomas (23 N. Y., 281), and in similar cases, do not determine the question of the defendants’ liability.

Whether or not the defendants’ proceedings were so strictly regular that a sale of the land would have conveyed a title is not the question. The question is, simply whether the defendants were utterly without jurisdiction, and therefore liable.

In the view which we have taken of this case, Ave have not deemed it necessary to, discuss the question whether this land was, or was not, assessed in the proper form ; whether it should have been assessed to the occupants, or whether it should have been assessed as non-resident land, under all the peculiar provisions of section 13 ; some of Avhich appear to be inappropriate to a hotel building with tenants in stores therein.

The views above expressed apply to the case of Hilton against the same parties. In that case there does not seem to have been the positive request in a former year to assess the property to Mr. Hilton instead of Mrs. Stewart. Substantially, however, the case is the same ‘with hers. A jury would be fully justified in trading that the agent of Mr. Hilton had. in a former year, requested that the assessment be made to him. And, at any event, we have in this case the same attendance of the agent, the same attempt to reduce the amount of the assessment, and the same absence of objection as to the maimer of entering the assessment on the rolls. In this case, also, the refusal of the assessors to reduce the assessment is the only act with which they had any reason to believe that the plaintiff was dissatisfied.

For the reasons above given, the motion for judgment on the verdict must be denied, and a new trial granted, costs to abide the event in both of these cases.

Present — Learned, P. J., and Boardman, J.; Bockes, J.f taking no part.

Motion for judgment on verdict denied ; new trial granted,, costs to abide event in each case.


author: Boardman, J..:

text:
    JAMES McDERMOTT, as Administrator, etc., of BERNARD McDERMOTT, Deceased, Respondent, v. CITY OF KINGSTON, Appellant.

      City — liability of, for the negligence of a gas company in negligently excavating* a ditch in the street.

    The action was brought to recover for injuries sustained by the plaintiff’s in e» ate,, by his falling into an excavation in one of the streets, in the city of Kingston,, alleged to have been negligently left unguarded. The excavation was made by a gas company, under one of the city ordinances, passed in pursuance of a provision of the charter authorizing it to regulate and superintend the laying of all gas pipes. The ordinance required the company to keep proper lights burning, but reserved no right of supervision to the city officers, and no supervision was, in fact, exercised by them.

      Held, that to render the city liable for the injuries, it must appear, not only that the accident resulted from the negligent manner in which the excavation was made and left, but also that the city had notice, actual or constructive, thereof.
    The fact that an alderman of the city saw the excavations being made is not-per se evidence that the city was guilty of negligence.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a now trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages sustained by the plaintiff’s intestate in falling, in the night, into a ditch, excavated in one of the streets of the city of Kingston, by a gas company, which had been negligently left unguarded.
    Subdivision 23 of section 33 of the charter of the city of Kingston (chap. 150 of 1872), provides that “the said common council shall have full power * * * to regulate and superintend the laying of all gas pipes in said city, and to require any corporation or company, after laying or repairing such pipes in any street or highway in said city, to put such street or highway in good condition or repair, and to remove all incumbrances or obstructions which such corporation' or company may have placed, or caused to be placed, in any such street or highway without any unnecessary delay, and to require such corporation or company to keep proper signal lights burning at night at all holes or ditches or other places which may have been rendered dangerous to persons traveling such streets or highways; and in case such corporation or company shall neglect or refuse to do any of the acts so required of it, the said common council shall have power to cause the same to be done at the cost and expense of such corporation or company, and to collect such cost and expense by suit at law, or as hereinafter provided.”
    In pursuance of this section an ordinance was passed providing that “ § 2. Any corporation or company laying, or preparing to lay, any gas or water pipe or pipes in any street or highway in said city, shall, during all the time while doing so, and until full-compliance with the first section of this ordinance, keep proper signal lights burning at night at all holes or ditches or other obstructions which such corporation or company may thus have made, dug or placed in, on or across any or either of the streets- or highways of said city, and at all other places which such cor-. poration or company may thus have rendered dangerous to persons traveling such streets or highways.”

      Charles M. Preston and Howard Chipp, Jr., for the appellant.

      John. J. Linson, for the respondent.
   Boardman, J..:

For any obstructions or defects created by the city for its own purposes, in its streets or its sidewalks, whereby persons are injured, the city will be liable, if the injury be due to the negligence of the city officials or employes. The same result follows if the work on the streets or sidewalks be done by others, by the consent and under the supervision of the city authorities. (Wendell v. City of Troy, 4 Abb. Ct. App. Cas., 563.) If a trespasser obstructs the ways of a city, whereby an injury occurs to an individual, the city will not be liable, except after notice, actual or constructive, and neglect to put the street in good condition after such notice. (Hume v. Mayor, etc., of N. Y., 47 N. Y., 639; S. C., 57 How., 359, in Court of Appeals, second time; Gorham v. Village of Cooperstown, 59 N. Y., 660.) But, if the work is done by the consent only of the city, and not under its immediate supervision, the city will not be liable for the negligence of those doing the work, but only for its own negligence in not correcting the evil after notice, actual or constructive. (Masterton v. Village of Mt. Vernon, 58 N. Y., 391; Dorlon v. City of Brooklyn, 46 Barb., 604).

The last principle stated applies to the present case. The excavation was made by the gas company for its own private purposes. Its license, authority or consent for so doing was derived from a city ordinance regulating the laying of gas and water pipes. By virtue of this ordinance, the act of the gas company was lawful, so far as excavating the ditch. In the absence of such authority, the gas company would have been a wrong-doer. The ordinance provides for ho supervision by city officers, and none in this case was had. “ Under these circumstances, it is held,” says the learned judge in his charge, “ that if the excavation was left in an unsafe condition, and the plaintiff, while traveling upon the sidewalk and using due and ordinary care, was injured solely by reason of the unsafe condition thereof, the defendant is responsible to him for the injuries sustained thereby.” An exception being taken thereto, its correctness is now presented for review.

We think this charge cannot be sustained upon authority. It would make the defendant an insurer against injuries of this character. The city did not make this excavation. It was not made at its instance or request. It did not supervise, direct or control the act done. It had no notice of any defect. The element of negligence, on the part of defendant, is wholly ignored. The fact that one of the aldermen saw excavations being made is not perse evidence that the defendant was guilty of neglect. It might have been a circumstance to have been submitted, with other evidence, for the consideration of the jury. The judge, however, says, in substance, the gas company had' the right to dig this ditch, an alderman saw its employes digging in that vicinity, though he did not see the dangerous and careless way in which the work was left at night; therefore, the defendant is liable, if the employes of the gas company were negligent, and plaintiff’s intestate ivas free from negligence, for the damages caused thereby. This goes too far in imposing liabilities upon municipal corporations. The defendant did not consent to the leaving of an open or unsafe ditch across the sidewalk. The consent given was upon condition of thorough and adequate protection of the public against danger or injury. It was the wrongful act of the gas company and its employes in leaving the ditch at night in an unsafe and dangerous condition. To that extent the gas company was the wrong doer. The city could only be made liable for its own neglect to repair or protect, after notice of the danger. (Hume v. Mayor, etc., of N. Y, 57 How. [Ct. of App.], 359.) The error consisted in making the city liable for the wrongful act of the gas company in leaving this ditch in a dangerous condition without notice to the city of its defects. Until such notice had been brought home to the defendant it was not guilty of any negligence. Without negligence it cannot be held liable for the acts or misconduct of others to which it is not a party. (2 Dillon on Corp., § 790.) At the most, it may have been a question for the jury whether, under the facts, there was any evidence of negligence on the part of the defendant. Instead of that the city is made liable under the charge.

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

Learned, P. J. and Bockes, J., concurred. •

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


author: Boardman, J. :

text:
    In the Matter of the Accounting of ANTHONY RIESER AND JOHN D. DERRENBACHER, Assignees of J. & J. P. DERRENBACHER.

      Insolvent firm — the assignee of one partner cannot enforce as a firm debt a debt due from the firm to his assignor.

    A firm indebted to one of its partners, for goods sold to it by him, became insolvent and made a general assignment. The partner also became insolvent, and made an assignment for his creditors. Upon an accounting the assignee of the partner was allowed to prove the amount due from the firm to his assignor as a firm debt, and to share in the distribution of the assets of the said firm with the other firm creditors.
    ,.Held, that this was erroneous; that such debt could be paid only after all the other creditors.of the co-partnership had been fully xiaid.
    Appeal from an order of the Ulster County Court, in reference to the settlement and distribution of the estate of an insolvent firm.

      J. Newton Fiero, for the creditors, appellants.

      F. 8. Wood, for the respondents.
   Boardman, J. :

John and John P. Derrenbacher were partners from January, 1873, to December, 1877, dealing in groceries and supplies. During the same period John was a dealer, on his individual account, in flour, feed and grain, and sold such articles to the film. The firm made payments to John from time to time on account of said purchases. On the 13th of December, 1877, there was due John from the firm upon said account a balance of $11,281.03. On the day last named both John and the firm of J. & J. P. Derrenbacher, being insolvent, made assignments in trust for their respective creditors. Upon an accounting had by the assignees of the co-partnership, the above balance of account was proved and allowed as a debt against the firm entitled to share in the distribution of the assets of said firm as other creditors of the firm. The creditors appeal from such order and insist that, on the facts shown, John, an insolvent partner of the insolvent co-partnership, cannot claim pay upon such indebtedness until the other joint creditors of tho co-partnership have been fully paid and satisfied.

The rule is now well settled that partnership assets are first to-be applied to the payment of partnership debts, and individual assets to the payment of individual debts. If partnership assets-shall not suffice to pay partnership debts, resort may be had to-any surplus of personal assets after payment of personal debts,, and vice versa. This rule is not questioned by counsel. But it is. claimed that under it this debt'of over $11,000 is as much entitled to share in the firm assets as any other, and that the creditors of' John, in equity and justice, should have whatever dividend is due to it as a firm debt, to be distributed to them under John’s assignment. It is difficult to see why such claim is not just and equitable ; but the authorities seem to be against it.

“ Where all the parties become bankrupt the general rule is, that the separate estate of one partner shall not claim against the joint estate of the partnership in competition with the joint creditors, nor the joint estate against the separate estate in competition with separate creditors.”. (Collyer on Part., § 948.)’ There are two exceptions to this general rule : one arising out of fraud, etc., not applicable in this case, and the other where two firms are dealing with each other,’ and some of the parties are the. same in both firms, as in Cole v. Reynolds (18 N. Y., 74).

The same rule is laid down in Parsons on Part. (pp. 499, 500), and in Gow on Part. (chap. 5, § 3, p. 290, el seq. [3d Am. ed.]; Ex parte Reeve, 9 Vesey, 589; Ex parte Adams, 1 Rose, 305; Ex parte Harris, id., 438, and 2 Ves. & Bea., 212.) In the latter case Lord Eldon says: “If one partner lend £1,000 to-the partnership, and they became insolvent in a week, he cannot be a creditor of the partnership, though the money was supplied to the joint estate ; that is, no proof can be admitted to affect the' creditors, though the individual partners may have the right against each other.”

The principle upon which this doctrine is founded is this : the-creditor partner, if solvent, could not claim anything against the co-partnership assets until its creditors, who are also his creditors,, are fully paid, and hence his creditors, upon his insolvency, can take no greater rights than he had. The authorities cited in the text-books referred to seem to sustain the principle as stated, above.

Our own reports seem quite destitute of authorities upon the precise question involved. Hayes v. Bement (3 Sand. S. C. R., 394) recognizes, however, the rule as stated. The principle is also sustained in White v. Hackett (20 N. Y., 178), in which Judge Gray says : “ Had Schenck been a general partner, the indebtedness to him would have been postponed until the creditors of the firm should be satisfied.”

Upon authority we are satisfied the order of the county court, ,so far as it allowed the claim of John Derrenbacher as a debt .against the partnership assets, to be paid its distributive share with other creditors of the firm, was erroneous, and should be reversed, with ten dollars costs and expenses of printing.

Learned, P. J., and Bocees, J., concurred.

Order reversed, with ten dollars costs and printing disbursements.


text:
    GEORGE C. JOHNSON, Executor of ALEXANDER G. JOHNSON, Deceased, Respondent, v. THE CITY OF TROY, Appellant. Robert H. McCLELLAN AND JAMES LANSING, Respondents, v. THE SAME, Appellant.

      Bowi'd of education of Troy — (drafts d/rawn by it on the chamberlain — the board cannot employ counsel to assist the drawee in collecting them.

    'The board of education of the city of Troy, having purchased coal for the schools from a merchant, audited his account, and drew a draft upon the chamberlain of the city for the amount due. The chamberlain having refused to pay the draft because not countersigned by the comptroller, or audited by the common ■council, proceedings were instituted to compel its payment, in which counsel were retained by, and appeared for, the board of education. Subsequently the draft was countersigned by the comptroller and paid.
    In an action by the counsel who appeared for the board of education to recover for their services, held, that the board of education had no authority to aid the drawee in-collecting his draft, or any rights to be protected in such proceedings, and that they, therefore, had no authority to employ counsel, and their action in so doing was illegal and created no obligation against either the board or the Hty.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and an from order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought against the city for professional services rendered for the board of education, one of the departments thereof..
    The board of education was created by chapter 198 of 1849. The charter of the city, in force at the time the services were rendered, was contained in chapter 598 of 1870.
    Both of the above entitled cases were founded upon the same facts.

      R. A. Parmenter, for the appellant.

      James Lansing,.for the respondents.
   Boardman, J. :

The board of education of the city of Troy became indebted to Barton & Tupper, coal merchants, for a supply of coal for the schools of said city. On September 5, 1871, .the board of education audited the account, and gave to Barton & Tupper its draft upon the chamberlain of the city for the amount due. The chamberlain refused to pay the draft when presented, because it was not countersigned by the comptroller of the city as required by law, and upon the further ground that the claim had not been audited and allowed by the common council. Proceedings were taken to compel the chamberlain to pay the draft, which was after-wards, upon being countersigned by the comptroller, paid. Professional services were obtained for such proceedings by the board of education, and drafts of the board given in payment therefor. The comptroller refused to countersign such drafts. Upon proceedings to compel such signature, a mandamus was granted at Special Term, and upon appeal to the General Term the order granting such mandamus was reversed, but no opinion written. It was contended, upon such appeal (1), that the employment of counsel by the board was illegal and unauthorized, and (2) xthat expenses for counsel were not. “ contingent expenses;” within the charter of the city. In August, 1875, this action was brought against the city, and a recovery had.

It is apparent, upon these facts, that the board of education fully discharged its duty when it gave its draft upon the chamberlain in favor of Barton & Tupper for the bill of coal. Thereafter, the presentation, collection and payment of that claim was a matter between the city and Barton & Tupper. The board of education was under no kind rrf obligation, nor was it its duty, to employ counsel to enforce such claim. It had no such power. The proceedings to enforce the payment of the draft were in the interest anu for the benefit of Barton & Tupper, and not of the ¡board. The act of the board, therefore, in employing counsel to collect Barton & Tapper’s debt was outside of any authority given the board by law — a voluntary act, unsupported by any obligation, legal or moral. Such employment was thus illegal, and imposed no obligation upon the city.

Nor do we think the board of education had any rights to be guarded which could justify the employment of attorneys. It had given its draft to Barton & Tupper. Whether such draft' was to be audited by the common council, or countersigned by the comptroller, was the holders’ business to. find out, not the drawers. The payees were entitled to their money when the draft was presented to the chamberlain in proper shape. It was not the duty of the board to follow its draft, and attempt to enforce its payment against or in spite of the law. The ignorance or misconduct of co-ordinate branches of a city government may create much trouble or mischief, but it does not give to either any rights as against the other to be guarded. If there be friction and diverse opinions, they must be adjusted by agreement, or settled by the courts. But it is no part of the duty of one department to enforce against.another department of the same city the claims ■and obligations of third persons. It is sufficient for each department to do its duty, and that does not require a vindication of its ■authority by legal action.

We conclude, therefore, that the board of education had no authority to employ counsel to enforce the claim of Barton & ‘Tupper against the city, and hence such action was illegal, and created no obligation against either the board or the city.

It follows that the judgment and order below must be reversed -and a new trial granted, costs to abide event.

The same order must be made in the case of Robert H. McLelan, etc., v. The City of Troy, which is founded upon the same state of facts.

Learned, P. J., and Bockes, J., concurred.

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


author: Boardman, J.:

text:
    LEWIS L. MILLER, Respondent, v. ZINA A. LINDSEY, Appellant.

      Mortgage — when not discharged by a conveyance of the fee to the mortgagee— Bona fide purchaser — when bound by an assignment of a mortgage of which he had no notice.

    January 27, 1872, Terwilliger mortgaged certain premises to Drake, without any bond or covenant to pay the debt. Drake recorded the mortgage June 15, 1872, and on February 21, 1873, sold it to the defendant, who paid full value therefor, but failed to record his assignment. March 11, 1S73, Terwilliger deeded the premises to Drake, in satisfaction of the mortgage and for other considerations, without demanding a satisfaction piece, or making any inquiries as to its whereabouts. The deed was recorded March 28,1873. On December 23,1873, Drake conveyed the premises by warranty deed to the plaintiff, who was ignorant of defendant’s ownership of the mortgage, his deed being recorded January 10, 1874.

      Held, that the mortgage held by the defendant was not satisfied or discharged by the conveyance of the fee to Drake.
    ’That the plaintiff, though a purchaser in good faith, and without knowledge of the assignment, was not protected from the lien of the mortgage or entitled to have it canceled.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to have a mortgage held by the defendant declared void and canceled, as a cloud upon the plaintiff’s title.

      Johnson and Carver, for the appellant.

      Edward K. ClarJc, for the respondent.
   Boardman, J.:

Mrs. Terwilliger, on the 27th day of January, 1872, gave her mortgage, upon the premises described ill the complaint, for $250, to one Drake. There was no bond, accompanying the mortgage or covenant, to pay the debt. The mortgage was recorded June 15, 1872. On the 21st of February, 1873, he sold and assigned such mortgage to the defendant, who paid full value therefor. His assignment was not recorded. On the 11th of March, 1873, Mrs. Terwilliger deeded to Drake said premises, in satisfaction of said mortgage and for other considerations, without knowledge of its assignment to the defendant. Mrs. Terwilliger did not demand a satisfaction of the mortgage, or any receipt for its payment or its production, nor did she make any inquiry as to it or its whereabouts. On the 26th of December, 1873, Drake, by warranty deed, conveyed the premises to the plaintiff, who was ignorant of defendant’s ownership of said mortgage and claim, under it. The deed to Drake was recorded March 28, 1873, and the deed to plaintiff, January 10, 1874.

If the purpose of Drake, in receiving Mrs. Terwilliger’s deed, was to - satisfy and extinguish this mortgage before that time assigned by him to the defendant, and then held by the defendant, it was a fraudulent and dishonest purpose, and no court of equity would aid in its accomplishment. So far as Mrs. Terwilliger is concerned, .the mortgage might be treated as paid. But it is of no consequence whatever to her, since she was not personally bound to pay the debt. The effect of the transaction was to put the title of the real estate in Drake’s hands, subject to the payment of this mortgage in the defendant's hands. (Brown v. Blydenburgh, 7 N. Y., 141.) As between Drake and the defendant, the mortgage was a good and valid lien during the time Drake had the title. It cannot be claimed there was a merger, since Drake at no time combined in himself the two estates by deed and mortgage, nor was he, at any one time, bound to pay the mortgage and entitled to receive the pay. (Purdy v. Huntington, 42 N. Y., 334.) The case of Warzer v. Cary (12 Hun, 403), does not apply. That was a payment of the mortgage debt by the transfer of other real estate than that mortgaged. It was the same as if the mortgage had been paid in cash, without notice of the assignment. In the case at bar, the equities of the parties are not disturbed by the transfer of title, and no one is prejudiced by the continued lien of the mortgage. We think the learned referee erred in his second conclusion of law, whereby he found that the mortgage of the defendant was satisfied by the deed from Mrs. Terwilliger to Mr. Drake.

The referee has correctly found that the plaintiff, though a purchaser in good faith, and without knowledge of the assignment to defendant, is not protected from the lien of the mortgage or entitled to have it canceled. (Purdy v. Huntington, 42 N. Y., 334.) This case is directly in point, and is conclusive against the plaintiff upon the facts relating to his title. It also holds that the deed cannot operate as a transfer of the mortgage, or be construed to be a subsequent assignment of the mortgage under the recording acts, so as to cut off the defendant’s lien in equity.

Being satisfied the judgment is erroneous, it must be reversed and a new trial granted, costs to abide the event. Referee discharged.

Learned, P. J., and Bocees, J., concurred.

Judgment reversed, new trial granted, reference discharged, costs to abide event.


text:
    ADA BORST, Respondent, v. JOHN CROMMIE and others, Appellants.

      Support of daughter charged on farm — farm may he sold subject to — right of daughter to choose residence — annual sum allowed for Clothes,— value of support and clothes, hqw proved — does not inelude education.

    Plaintiff1’s father devised Ms homestead farm to Ms three sons, “subject, however, to the liens thereon herein imposed and reservations hereinafter mentioned,” and directed that each of his three daughters, of whom the plaintiff was one, “ shall be well supported at my dwelling-house, and furnished with good and sufficient food and suitable clothing, by my three sons, George, Clayton and De Witt, during the time she shall remain single and unmarried, which support I hereby make a lien upon my said farm above devised to my said three sons.” Plaintiff was so supported until 1873, when the sons sold the farm and the family left. In 1877 she returned, and after living for a, time with and at the expense of a tenant of the owner, left, after having made a demand for clothing, which was not furnished to her satisfaction. The ■brothers having failed to discharge their obligations under the will, this action was brought to recover for her support and maintenance from 1873, and to have that sum, together with her future support, charged upon the farm or paid from the proceeds of its sale.

      Held, that the brothers might lawfully sell the farm, subject to the charge in favor of the plaintiff, and give a good title thereto.
    That the plaintiff, upon the failure of the brothers to support her, was not bound to live with a tenaut of the purchaser, but might select her own place of abode, provided no needless expense was thereby created.
    That she was entitled to recover such reasonable sum as it would have cost to support and clothe her at the place and in the manner prescribed in the will; that she could not be compelled to diminish this amount by her own labor and services beyond such as are ordinarily rendered by a member of the family.
    That the allowance for clothing might be computed at an annual sum.
    That the value of her support and clothing, and the time when they were due, might be ascertained by the evidence of persons acquainted therewith.

      Held, however, that the cost of the plaintiff’s education was not charged upon the farm.
    Evidence Of the value of the farm and the chai'ges upon it, and of the amount of the testator’s property, held to be admissible as tending to show what sum it would be reasonable to allow for her support and clothing.
    Appf.au from a judgment in favor of the plaintiff, entered upon the r _ >rt of a referee.
    The action was brought to have the value of plaintiff’s support, which had been charged upon a farm, determined, and to have the farm sold to satisfy the same. Plaintiff’s father, by his will, devised his homestead farm to his three sons, “ subject, however, to the liens thereon herein imposed and reservations hereinafter mentioned.” He also ordered and directed “ that each of my daughters, Cynthia, Ann, and Ada (the plaintiff), shall be well supported at my dwelling-house, and furnished with good and sufficient food and suitable clothing, by my three sons, George, Clayton and De Witt, during the time she shall remain single and umharried, which support I hereby make a lien upon my said rfarm above devised to my said three sons.”

      Henry Smith, for the appellants.
    The clause of the will does not create a personal burden that could only be discharged by the sons. { Wilson v. Wilson, 38 Me., 18; Simmunds v. Simonds, 3 Met., 552.) Defendants are only bound to support plaintiff on the farm. ÍMealcin v. Duvall, 43 Md.,'380; Ogle v. Taylor,' 1 Md. Law Rec., 73; Hawley v. Morton, 23 Barb., 255; Converse
      T. McArthur, 17 icl., 410; McKillip v. McKillip, 8 id., 552; Pool v. Pool, 1 Hill. 580; Holmes v. Fisher, 13 N. H., 1; Howe v. .Howe, 10 id., 88.) The plaintiff was not entitled to commutation for the time she was living away from the homestead and not supported by defendants. {Meakin v. Duvall, supra; Ogle v. Taylor, 1 Md. Law Rec., 73.)

      J. F. Dewey, for the respondent.
    The provision, for Ada’s ■support, was a personal trust and confidence reposed in her brothers; and the duties enjoined upon them and charged upon the farm, and which, by accepting the devise, they agreed to perform, were for their personal services, and were not the subject of assignment or substitution. ■ {Robson c6 Sharpe v. Drummond, 2 ..B. & A., 303; Henritty v. McGuire, 6 N. Y. W. Dig., 393, first-department, Ingalls, J.; Boston Ice Co. v. Potter, 123 Mass., 28, 30; Story on Bailments, § 428; Story on Agency, §§ 12-15; Planche v. Colburn, 8 Bingh., 14; S. C., aff’d, 5 Carr & P., 58; Chitty on Cont., 447-449, 570-571; Schmaling v. TomlMnn, 6 Taunt., 147.) It is, however, directly and fully settled by authority, that compensation, in lieu of past ancl future support, will be adjudged where the language contemplates, or the circumstances indicate a personal trust or duty, which those, in whom it is reposed, have violated, byrefusing or omitting its performance; or where they have rendered themselves incapable of performing such duty by selling and transferring the land, which is subject to the charge ; and have thereby subjected the beneficiaries to the necessity of either finding a home among strangers, or of supporting themselves elsewhere afid receiving compensation equivalent to the support intended. {Clinton v. Fly, 1 Fairf. R. [Me.], 292, '296-297; Flanders v. Lamphear, 9 N. H., 201, 203-204; Feast-man v. Batchelder, 36 id., 141, 148, 149-152; Bethlehem v. Annis, 40 id., 34, 41-44; Hoyt v. Bradley, 27 Me. R., 242; Wilder v. Whittemore, 15 Mass. R., 262-263; Stillwell v. Pease, 3 Green Ch. R. [N. J.], 74; Ripple v. Ripple, 1 Rawle R. [Pa.], 386; Donnelly v. Edelleh, 40 Md. R., 117-123; Mealdn v. Duvall, 43 id., 372, 382; McKillip v. McKillip, 8 Barb., 556-557; Loomis v. Loomis, 35 id., 624; Tolley v. Greene, 2 Sandf. Ch., 91; »Crocker v. Crocker, 11 Pick., 252; Thayer v. Richards, 19 id., 398.) No demand was necessary after the devisees had, by their transfer, become unable to perform the duty enjoined. (2 All.,, 548; 23 Barb., 255, 259; 20 Pick., 43, 51; 8 Bingh., 14; 107 Mass. R., 474, 481; 25 N. Y., 194, 196-199, 202-203.) A lack,, or want of support, is a proper subject for compensation, past or future. And, so held, in cases where the premises, charged with such support, were sold to strangers. (Austin v. Austin & Raymond, 9 Term. R., 420, 422; Ferguson v. Kimball, 3 Barb. Ch., R., 616, 617-618; Conant v. Stratton, 107 Mass. R., 474; Formanv. Whitney, 2 Kejes, 165.) The proper amount for past or future support must depend upon, and be according to her condition in life as it was or would have been if her father had lived and his-condition had remained the same as at the making of the will-(11 Pick., 256, 258; 3 Sandf. Ch., 120, 130; 2 id., 91, 94-95; Willet v. Carroll, 13 Md., 459; 35 Barb., 629; Ferguson vIiimball, 3 Barb. Ch., 617-618; Redmond v. JBorroughs, 63 N. C., 242; Forman v. Whitney, 2 Keyes, 165, 168; S. C., 2 AbbCt. jgf,App. Dec., 163, 166; Matter of Burlce, 4 Sandf. Ch., 617,. 619, 620.) Even if fully able, she was not bound to support herself by her labor, or by any other means she may have had. (17 Barb., 482, 487; 11 Pick., 256, 257; 19 id., 399; 2 Keyes, 168; 2 Abb. Dec., 163, 165, 166.)
   Boardman, J. :

By Henry Borst’s will, he gave to his fhree sons his homestead farm, “subject to the liens thereon therein imposed and reservations thereinafter mentioned.” By a subsequent clause, he directed and ordered that his daughter Ada, the plaintiff, should be well supported at his dwelling-house, and furnished with good and sufficient food and suitable clothing by his said three sons, during the time she should remain single, which support ho made a lien upon said, farm devised to his three sons. She was so supported at such dwelling-house until May, 1873, when, by l’eason of the sale of the farm by the three.sons, the family removed to Brooklyn. In 1877, she returned to the farm, and, for a short time, lived there with a tenant of the owner, and at his expense. The plaintiff then left of her own volition, after having made a demand for clothing, which was not supplied to her satisfaction. This action is then brought by the plaintiff to recover for her support and maintenance from May, 1873 ; that the same should be charged ■upon the farm; that the farm should be sold to pay for such support in the past; that the amount of her support for the future should be determined, and that the same should be charged upon the farm and be paid by its owners or out of its proceeds. The plaintiff recovered in the action, and the owners of the farm appeal, claiming that the obligation imposed by the will was not to be personally discharged by the three brothers, and that the defendants were only bound to support the plaintiff, at the homestead of .the deceased, on said farm.

The rights of these parties are to be determined by the language -of the will, as the expression of the intention of the testator. ^Doubtless the expectation was that the farm would remain the property of the.sons, and that plaintiff would live with them, in the old homestead, until she married or died. But, by reason of the sale of the farm, such a performance became impracticable. I think, after that change, it became the primary duty of the three brothers still to support the plaintiff", while the charge upon the farm would remain as a security for such support. I do not think they were bound to support her at the testator’s dwelling-house after they had ceased to own it. But they might lawfully have fulfilled their duty by making provisions for her support at that place. The essence of the intention was, that the plaintiff should have her support at the expense of her brothers, who had received the larger share of the property. But the brothers might, in like manner, have provided for her support, after the sale of the farm, in their own families, or elsewhere, so long as they gave the kind and quality of support required by the will. The three brothers could not bo required to live together, so that the ■plaintiff might live with them, nor could they be expected jointly to occupy the farm for the same purpose. The obligation was not so far personal as to compel the support of plaintiff in their families ;. nor do I think it was so free from personal considerations that the owners of the farm could elect to board her upon the farm, and compel her to accept that or nothing. In buying the farm, it must be assumed they estimated the possible obligation they assumed, and hence it will be no hardship to require them to discharge it in money. But it does not appear that the three brothers are unable or unwilling to support the plaintiff, or that she has been unable to secure her support from or. through them. No question, however, was made upon this point upon the trial, or on this appeal. We shall assume, therefore, that the three-brothers have failed and refused to discharge their obligations, under the will, whereby the plaintiff is permitted to enforce her equitable lien on the farm of defendants.

We conclude, then, that the brothers might lawfully sell and convey the farm, subject to the charge in favor of the plaintiff, and give a good title thereto. (Simonds v. Simonds, 3 Metc., 558.) That the plaintiff, upon the failure of her brothers to support her, was not bound to go into the testator’s dwelling-house and live there with the tenant of the owners, but might select her own place of abode. (Crocker v. Crocker, 11 Pick., 252; Wilder v. Whittemore, 15 Mass., 252; Stillwell v. Pease, 3 H. W. Green. [N. J.], Rep., 74; Tope v. Tope, 18 Ohio, 522; Loomis v. Loomis, 35 Barb., 624; McKillip v. McKillip, 8 id., 556.) That in enforcing her lien the plaintiff is entitled to recover such reasonable sum as it would have cost to support and clothe her at the place and in the manner prescribed in the will — that is, asoné of the household in the testator’s surviving family; that beyond the services so ordinarily rendered by a member of the-family, the plaintiff cannot be required to diminish the charge-upon the land by her own labor or money, lior should the extent of defendants’ liability be diminished thereby. (Crocker v. Crocker, ante; Thayer v. Richards, 19 Pick, 398.) That the-allowance for clothing may bo computed at an annual sum. (Conant v. Stratton, 107 Mass., 474.) That the value of plaintiff’s support and clothing at the place where, and at the time when, and under the circumstances under which said support and clothing were due, may be ascertained by the evidence of persons-acquainted therewith ; but if she selects her own abode, she shall-create no needless expense, nor be allowed any sum beyond that-necessary to a strict compliance with the requirements of the will. (Wilder v. Whittemore, ante; Tope v. Tope, ante.)

These suggestions dispose of the general principles of law applicable to this cause of action.

Upon the trial the plaintiff proved, under objection, what it would cost to send her away to school. This element of damages does not arise from any breach of the conditions contained in the will. The farm was not charged with the cost of plaintiff’s education. Her support, good and sufficient food and clothing, were to be furnished by the three brothers, “ which support” was made a lien upon the farm devised. By no' fair construction Of the will can the charge be made to include the plaintiff’s education. The learned referee erred in admitting this evidence, and including the value of plaintiff’s education, as we must assume ho did, as an element of damages which plaintiff ivas entitled to recover. For this reason the judgment must be reversed.

By the findings of the referee it appears the net income of the farm devised to the three sons is less than $400 per annum. Yet more than the entire not income of the farm is given to the plaintiff by this judgment. It is not, perhaps, necessary to review such a question of fact upon conflicting evidence, which varies in estimates from $200 to $500. But, when it is considered that this farm was charged by testator’s will with the support and clothing of his widow, Maria, during widowhood, and his two daughters, Cynthia and the plaintiff, until married, we must hesitate to believe it was the intention of the testator to impose so heavy a burden as is indicated by this decision upon his three sous. In view of the value of the farm and the reasonable cost of support, as indicated by this judgment, it would not take many yéars to extinguish .and wipe out all of the interest of the three sons under the devise in the will. This, however, is rather a circumstance tending to show the intention of the testator, the nature, purpose and extent of the maintenance to be given, and is only of value in determining the allowance to be made.

But, without relying upon this consideration, we think, for the error above stated, the judgment should be reversed, the referee discharged, and a new trial granted, with costs to abide the event.

Learned, P. J., and Bockes, J., concurred.

Judgment reversed, new trial granted, reference discharged,, costs to abide event.


author: Boakdman, J. :

text:
    DAVID P. BARRINGER, Plaintiff, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Defendant.

      When a foreman does not repi-esent a company, so as to renden' it liable to a fellow-servant for the foreman’s negligence.

    The plaintiff, an employe of the defendant, was injured while riding on a handcar, owing to its defective condition. One Brown, as “section boss,” had charge of about five miles of track, and was foreman of the men employed,,!» keep it in repair, hiring and working with them. He was responsible for tools and machinery, and if any were wanted, or out of repair, he applied or reported to the trackmaster, who furnished the necessary machinery, and directed as to the repairs. If machinery was defective,' Brown was ordered to have it repaired. The trackmaster employed the foremen of the sections, and they were subject to him. Brown knew of the defect in the hand-car, but had not notified the trackmaster thereof.

      Held,, that Brown did not represent the company so as to render it liable for his negligence, resulting in an injury to a fellow-servant.
    Motion for a new trial on exceptions ordered to be heard, in the first instance, at the General Term, after a verdict in favor of the plaintiff, and an appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, after a verdict in favor of the plaintiff.
    The action was brought to recover damages for injury sustained by the plaintiff’ an employe of the defendant, in being thrown from a hand-car on which he was riding, owing to the defectivo condition of the crank thereof.
    It appeared that Don Brown, under whose direction the plaintiff worked, was a “section boss” on the defendant’s road. He had charge of about five miles of track, and was foreman of the men employed to keep such track in repair, working with them. He had charge of and was responsible for the tools and machinery used. He hired his men, or some of them. If he required machinery or tools, he applied to the track-master therefor. If machinery gave out, or was defective, he was ordered to take it to the shop and have it repaired.
    Over him, and in a superior position, was the track-master, who .superintended the track, who employed the foremen of the sec-lion and other proper men, and furnished the tools and machinery necessary. To such track-master or his assistant all reports were made. If repairs were necessary, or tools needed, notice was to be given by the section foreman to the track-master, who supplied the tools or directed as to the repairs. The foreman was subject to the track-master and bound by his orders. Brown was a competent man for his position, but he had given no notice to the track-master of the defect in his car.

      S. W. Russel, for the plaintiff.
    The section boss, in regard to the care and repair of this section of defendant’s road, and the tools and machinery used for that purpose, is to be considered as occupying the place of the corporation, so that notice to him under the rule must be regarded as notice to the corporation. (Warner v. Erie R. R. Co., 39 N. Y., 475; Leming v. N Y. C. R. R. Co., 49 id., 521; EliJce v. Boston and Albany R. R. Co., 53 id., 553; Chapman v. Erie R. R. Co., 55 id., 579; Corcoran v. Holbrook, 59 id., 517; Brady v. The N. Y. C. R. R. Co., 62 id., 99; Malone v. Hathway, 64 id., 9; Louisville and Nashville R. R. Co. v. Bowler, noted in 11 Alb. Law Jour., No. 8, issued Feb. 20, 1875.)

      Henry Smith, for the defendant.
    Plaintiff cannot recover for an injury arising from the negligence of Brown, the “ section boss,” in failing to notify defendant of the defective hand-car. They were co-employes, engaged in a common employment, and injury arising from the negligence of competent fellow-servants was one of the dangers incident to the employment. (Hard v. Vt. and •Canada R. R., 32 Vt., 473; approved in Warner v. Erie R. R. Ho., 39 N. Y., 468; Searle v. Lindsay, 11 C. B. [N. S.J, 428; Sherman v. R. and S. R. R., 17 N. Y., 153; Coons v. S. and U. JR. R., 5 id., 492; Hqfnagle v. N Y. C. R. R., 55 id., 608; Rose v. B. and A. R. R., 58 id., 217; Wright v. N. Y. C. R. R., 25 id., 562; Malone v. Hathaway, 64 id., 5; Albrov. Agawam Canal Co., 6 Cush., 75; Wonder v. Balt, and Ohio R. R., 32 Aid., 411; Columbus and I. C. R. R., 31 Ind., 174; Lovegrove v Piper, 16 C. B. [N. S.], 668; Lehigh Valley Coal Co. v. Jones, ■6 Reporter, 125; McAndrews v. Burns, 5 id., 120.) The mere fact that Brown employed the men on his section does not make him the representative of the company. (Lawlor v. Androscoggin JR. JR., 62 Maine, 463; Hamilton v. Iron Mt. Co., 4 Mo. App. R., 564; Lehigh Valley Co. v. Jones, 86 Penn. St., 432; Wilson v. Merry, L. R., Scotch & Div. App., 326; Feltham v. England, L. R. [2 Q. B.], 32.)
   Boakdman, J. :

There is no controversy between the parties touching the principles of law applicable to this case. The defendant was bound to furnish its workmen with good and suitable tools and machinery. If such tools or machinery become defective and dangerous, to the knowledge of the defendant, it becomes responsible for all injuries caused thereby to its employes using the same, if such employes arc guilty of no negligence contributing to such injury. The injury of an employe by the negligence of a fellow-servant cannot bo charged to the defendant, provided there has been no neglect on its part in the selection or retention of such fellow-servant. When,-however, the servant, through whose negligence' the injury is done, is the superior servant, having the entire control of the business, and is the representative of the company in the work to be done, his knowledge is the knowledge, and his negligence is the negligence of the company. These principles, are well established, and to this extent counsel do not differ.

The position of Don Brown, the section “ boss,” is claimed, by the plaintiff, to be that of a superior servant, representing and standing in the place of the company. Brown knew of the defect, and his knowledge should be attributed to the defendant. Such was the rule laid down by the learned judge in his charge to the jury. lie said: “Don Brown stood, as between plaintiff and defendant, in place of defendant, and represented it.”'

The defendant claims Don Brown did not represent or stand in the place of defendant, but was a co-servant with the plaintiff, engaged in the same service, co-operating in the same business.

Brown, as a section “boss,” had charge of about five miles of track, and was foreman of the men employed to keep such track in repair, working with them. He had charge of and was responsible for the tools and machinery used. He hired his men, or some of them. If he required machinery or tools, he applied to-the track-master therefor. If machinery gave out, or was defective, he was ordered to take it to the shop and have it repaired.

Over him, and in a superior position, was the track-master, who superintended the track, who employed the foremen of the section and other proper men, and furnished the tools and machinery necessary. To such track-master or his assistant all reports were made. If repairs were necessary, or tools needed, notice was to be given by the section foreman to the track-master, who supplied the tools or directed as to the repairs. The foreman was subject to the track-master and bound by his orders. Brown was a competent man for his position, but he had given no notice to the track-master of the defect in his car.

Under such a state of facts, we think that the learned judge ened in holding that Brown represented the defendant and stood in its place. Brown was an employe just as plaintiff was. They were in the same circle of employment; they worked together for a common purpose. Each knew his relations to the other when the employment began, and each took the risks attending-the same. The negligence of either was one of those risks. That Brown was foreman, and directed the action or hired the others, does- not change the rule. Perhaps the track-master did represent the defendant. We are not called upon to decide that. Possibly no one below the superintendent stood in the place of' the defendant in inspect to the matter in . dispute. It is enough, that two officers of a superior grade stood between Brown and the defendant, either of whom presumptively could have hired or discharged Brown at will. So Brown’s position was that of an employe, and not a representative of the company.

Such is the reasoning upon the facts. The authorities aid us somewhat by way of analogy. In Malone v. Hathaway (64 N. Y., 5), Bagley, the carpenter, had entire charge of repairs in the brewery, was employed solely for that purpose, was supplied with all necessary materials, and spent his whole time in the building and about that business ; it was held that he was an employe, and that his master was not responsible for his neglect to make repairs, whereby another was injured. Searle v. Lindsay (11 C. B. [N. S.], 429) resembles this case closely. Plaintiff was third engineer on a. .steamer. While turning a winch, the handle came off for want of a nut or pin to secure it, and the plaintiff was injured. He was working there by order of the chief engineer of the vessel. The chief engineer and plaintiff were held to be fellow-servants, and the master not responsible.

Without further reference to authorities, we conclude the verdict should be set aside and a new trial granted, costs to abide the event.'

Bocees, J., concurred; Learned, P. J., taking no part.

New trial granted, verdict set aside, costs to abide event.


text:
    WALTER S. CHURCH, Respondent, v. THOMAS B. SIMMONS, Appellant, Impleaded with WILLIAM WHITBECK.

      Judgment for recovery of land — undertaking on appeal — agreement to prevent loaste — when liability under, is terminated.

    In July, 1864, plaintiff recovered a judgment- against oneWhitbeck for the possession of certain real property. Whitbeck appealed to the General Term, and to stay proceedings, gave an undertaking, signed by the defendant Simmons, by which the latter agreed, among other things, “ that during the possession of such prop-erty by the appellant, he will not commit, nor suffer to be committed, any waste thereon.” The. judgment was affirmed September 28, 1865, and Whit, beck, six days thereafter, appealed to the Court of Appeals, giving- an undertaking, with other sureties, to stay proceedings. In January, 1867, the judgment was affirmed by the Court of Appeals. In the winter of 1866 and 1867 Whitbeck committed waste upon the property.
    In an action to recover the damages occasioned thereby, held, that Simmons was not liable therefor, that his liability became fixed upon the giving of the undertaking upon the appeal to the Court of Appeals, and could not be affected by any subsequent acts of Whitbeck.
    Appeal from a judgment in favor of the plaintiff’ entered upon the report of a referee.
    The action was brought, upon an undertaking given upon an appeal, by one Whitbeck, from a judgment for the recovery of a farm in Rensselaer county. The defendant Thomas B. Simmons-was a surety on such undertaking.

      Martin I Townsend, for the appellant.

      Matthew Hale, for the respondent.
   Boardman, J.:

On the appeal to the General Term defendant Simmons undertook to become responsible, if the judgment was affirmed, for all costs and damages which should be awarded against Whitbeck on said appeal, not exceeding $250. These have been paid. He also-agreed to pay the amount of the judgment, if affirmed. That has been done. In the same event he agreed to pay the value of the use and occupation of the property, not exceeding $100. This-has not been paid, and the defendant does not deny the right of the plaintiff to recover such $100, and interest, in accordance with the report of the referee. Simmons, as surety, also agreed, that during the possession of said property by Whitbeck, he should not commit any waste upon the property. The undertaking of Simmons was given in July, 1864, and judgment of affirmance was rendered, under the decision of the General Term, in September, 1865. Six days thereafter an appeal was taken by Whitbeck to the Court of Appeals, and a new undertaking, with other sureties given, by which proceedings were stayed pending that appeal. In January, 1867, the judgment was affirmed by the Court of Appeals. In the winter of 1866 and 1867 Whitbeck committed waste upon the property in litigation. We are asked to determine whether Simmons is liable for such waste under his undertaking.

His undertaking was given that the surrender of the possession of the land might not be required from, or enforced against, Whit-beck. It operated as a stay of proceedings to get the possession. So long as Whitbeck retained possession by virtue of the stay so created, so long Simmons was liable for his acts. The contemplation of the parties, and the purposes of the law were, that Simmons' liabilities should be fixed when the judgment was affirmed, and a reasonable time allowed to take or enforce the surrender of the possession. So long as Whitbeck viciously might refuse to surrender the possession, under the decision of the General Term, so long would Simmons’ liability continue for his acts. From October, 1865, to January, 1867, the plaintiff in that judgment was at liberty to enforce it against Whitbeck, and take possession of the land in dispute, so far as Simmons was concerned. This was prevented by the giving of the new undertaking on appeal to the Court of Appeals. At the time when that was done, the liability of the defendant Simmons was fixed. No waste had then been committed by Whitbeck. He no longer remained in possession by virtue of Simmons’ undertaking. He stayed because the new undertaking permitted it. More than a year after Simmons’ liabilities had become fixed by the judgment of the General Term, and more than a year after the plaintiff in that judgment might have taken possession under it, Whitbeck commits this waste. We think the spirit and intent of the law continues the sureties’ liability during the time the plaintiff is kept out of the possession by virtue of the undertaking, and for a reasonable time after judgment of affirmance to enable him to enforce the surrender of possession. If no stay had been obtained, on appeal to the Court of Appeals, it would have been the duty of the plaintiff to have enforced his judgment by taking possession of the land in dispute. It would not be just to allow him to neglect that duty to the prejudice of a surety. There must be some period when the .surety would cease to be. liable by reason of laches and neglect. In the present case, Simmons was discharged from responsibility, .for the acts of Whitbeck, after the new undertaking had been given. His liability being once fixed and determined could not thus be indefinitely extended and prolonged.

The cases of Robinson v. Plimpton (25 N. Y., 484), and Hinckley v. Kreitz (58 id., 583), do not materially aid us. The former holds sureties liable upon a judgment of affirmance of the Supreme Court, though done in obedience to the mandate of the Court of Appeals. The latter holds the sureties not liable for costs of affirmance, in the Court of Appeals, of a judgment of affirmance in the Supreme Court. The same principle of justice would exempt sureties in the Supreme Court from liability for damages for waste during the pendency of an appeal in the Court of Appeals, where proceedings had been stayed, as in this case. For the damages .and costs in the Supreme Court, the sureties are liable Avhen the new appeal is taken, and that liability is not discharged thereby. In this case, that liability has been discharged by Simmons, except the $100, and interest, for use and occupation;

We conclude the judgment is wrong, so far as it charges defendant Simmons with $825, for waste committed by Whitbeck. long after the appeal to the Court of Appeals, and the giving of a new undertaking staying proceedings upon such appeal, and providing for Avaste thereafter committed.

The judgment appealed from is, therefore, modified by reducing the damages therein to $164.64, and, as so modified, is affirmed, without costs to either party of this appeal.

Learned, P. J., and Bocees, J., concurred.

Ordered accordingly.