text:
    GEORGE W. THAYER, Appellant, v. DAVID H. KING, Respondent.

      Agreement for extension of time — an unperformed usurious agreement for, does not release a surety — when the delay of the creditor to sue the principal will not release the surety.

    In an action upon a promissory note for $180, against a surety thereto, the latter defended upon the ground that the plaintiff had, without his knowledge or consent, extended the time for the payment of the note at the request of the maker. It appeared that, after the note became due, the plaintiff agreed to extend the time of payment for thirty days, upon the promise of the maker to give him five dollars for so doing. It did not appear that the five dollars, or any part thereof, had ever heen paid.

      Held, that there was no binding agreement to extend the time of payment, and that the surety was not discharged.

      Fernán v. Doubleday (3 Lans, 216) followed.
    In order that the delay of the creditor to proceed against the principal debtor shall exonerate the surety, the latter must show explicit notice or a request to the creditor to take legal proceedings to collect the debt, or enforce the liability of the principal.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.

      George W. Atwell, Jr., and IS. A. Nash, for the appellant.

      John Hoer and J. S. Gar look, for tbe respondent.
   Smith, P. J.:

Tbe action is upon a promissory note made by Andrew Jack and tbe defendant as bis surety. Tbe note was made tbe 19th of Eebrugry, 1876, for $130, payable thirty days after date to the Bank of Lima or order. Tbe Bank of Lima was a name assumed by tbe plaintiff, who was engaged in tbe business of banking. Tbe plaintiff owned tbe bank,'and he discounted tbe note, and was its owner. He knew that tbe defendant signed tbe. note as surety for Jack.

Two grounds of defense are set up: first, tbat by agreement between the plaintiff and Jack, the time for payment was extended without the consent or knowledge of the surety; and, secondly, that the plaintiff neglected to prosecute Jack on request of the surety, and that Jack, who was solvent at the time of the request, after-wards became insolvent.

The referee found that about the time the note became due, Jack proposed to the plaintiff to pay him five dollars for extending it one month. The plaintiff accepted the proposition and agreed to and did extend the time of payment accordingly, but .at the time of the arrangement no money was paid by Jack. There is no finding or proof that Jack ever paid the five dollars, or any part of it, so that the only agreement to extend the time was an executory, usurious agreement, which was never performed by the debtor. The case of Fernan v. Doubleday (3 Lans., 216), is an authority for holding that such an agreement does not discharge the surety. The reasoning upon which the decision rests is, that as the agreement of the debtor is unperformed, and performance of it cannot be enforced by reason of its usurious character, it forms no consideration for the agreement of the creditor to extend the time, and consequently the agreement is nudum pactmn, and does not suspend the remedies of the surety. We are not aware of any adjudication in this State to the contrary. There are cases holding that when the usurious consideration is paid at the time of the agreement to extend, the surety is discharged, and in one or two cases there are dicta to the effect that it makes no difference whether the usurious consideration is paid or not. Those cases are referred to and commented on by MilleR, P. J., speaking for the court in Fernan’s case. The rule laid down in Fernan’s case is supported by the following cases in other States : Burgess v. Dewey (33 Vt., 618); Smith v. Hyde (36 id., 306); Tudor v. Goodloe (1 B. Mon., 324); Patton v. Shanklin (14 id., 17) Halstead v. Brown (17 Ind., 202). The respectable weight of authority by which the rule is sanctioned requires us to adopt it, and we hold, accordingly, that the first defense is not established^

In the recent case of Howe Machine Company v. Farrington (82 N. Y., 121), it was said by ANDRews, J., that “the rule is well settled that in order to exonerate a surety by delay of the creditor to proceed against the principal, the surety must show explicit notice , or request to the creditor to take legal proceedings to collect the debt or enforce the liability of the principal” (p. 131). Applying that rale to this case, the second defence also fails. The referee finds that in July, 1876, King told Thayer that he did not want the note to remain as it was, and requested him to collect it. The finding in that unqualified form is hardly supported by the evidence. The only witness who testifies to a request to collect is the defendant, and his testimony is to the effect that about 12th July, 1876, the plaintiff, on being inquired of, told him that Jack had paid one-half of the note and got an extension of thirty days for the balance. I,” said the witness, “ told him I didn’t want it to ran so; I wanted it collected ; he said I needn’t be scared, he knew he was perfectly responsible, for Jack was at the bank in April with $1,600 in auction notes to sell to him; I asked him why he didn’t make provision for that note, or offset enough to pay it; he said * * * that he made him an offer of ten pp cent discount on the whole amount, and Jack said he would be back again if he could not do any better.” The witness continued : “About three weeks after I had another conversation with Thayer; I asked him if Jack had been up, or he had seen Jack; he said he had not; I then told him I wanted him to sue it immediately, or write him to pay it; that is about all of that interview.” That is all the testimony in the case tending to show a request to prosecute. Taking it all together, it is apparent that when the parties separated at the first interview, the defendant did not intend, nor did the plaintiff understand, that an immediate prosecution should be had, but it was mutually understood that in view of what had occurred between the plaintiff and Jack, a reasonable time should be given to see whether Jack would arrange the note by a turn of the auction notes, or in some other way, without suit. The same idea doubtless influenced the direction given by the surety at the second interview, which, according to his own statement, was in the alternative to sue immediately or write to' Jack to pay. There was no such explicit request to sue as the rule requires.

The judgment should be reversed and a new trial ordered before another referee, costs to abide event,

HaediN and Barrer, JJ., concurred.

So ordered.


source: Caselaw Access Project

author: SMITH, P. J.:

license: Public Domain

text:
    In the Matter of the Application of the NEW YORK, WEST SHORE AND BUFFALO RAILROAD COMPANY, Respondent, v. MARY CHURCH, Appellant.

      Eeport of railroad commissioners — it will not be set aside for the improper' receipt by them of a communication from the counsel for the compomy, which did not affect their action.

    A report of commissioners appointed to appraise the damages to be occasioned by the taking of land for railroad purposes, will not be set aside for their improper action in receiving, after the submission of the case and without the knowledge of the land owner, a written statement from the counsel of the railroad containing certain computations of the value of the premises to be taken, which computation had been made orally by the said counsel before the commissioners at the hearing.
    Appeal from an order of the Erie Special Term, denying the appellant’s motion to seti aside the report of the commissioners herein, on the alleged grounds of the improper conduct of the commissioners and the improper interference of the respondent’s counsel.

      H. O. Day, for the appellant.

      Ansley Wilcox, for the respondent.
   SMITH, P. J.:

The proceedings were taken under the general railroad act. The alleged impropriety consisted in the sending of a letter by the counsel for the railroad company to the commissioners after the case had been submitted to them, which letter it is claimed infl uenced their decision. The letter does not appear in the appeal papers, but according to the tmcontro verted testimony it contained nothing-more than a statement of certain computations of the value of the appellant’s premises, which computations had been made orally by said counsel before the commissioners on the hearing.

The sending of the letter, in the circumstances stated, was an irregularity, but in view of the proof that the contents of the communication were as above described, it is difficult to see how it could have had the effect to unduly influence the decision of the commissioners, and there is no evidence that it did have such effect.

Whether the sending of such a communication to a jury would have required the setting aside of their verdict, is a .question that does not arise in this case, and need not be considered. There are cases holding that where a jury have been approached or have misbehaved, but no injury has'resulted, the verdict will not be set aside. (Nesmith v. Clinton Ins. Co., 8 Abb., 141; Smith v. Thompson, 1 Cow., 221; Horton v. Horton, 2 id., 589; Wilson v. Abrahams, 1 Hill, 207.) But however that may be, the strict rules that are designed to protect jurors against every influence outside of the evidence that may affect their decision, are not applicable, in their full extent, to commissioners under the general railroad act. As was said by HaeRis, J., in Troy and Boston Railroad Company v. Lee (13 Barb., 169), the commissioners are required “ to view the premises. Thus their own senses are made to testify. * * * Unlike a jury, they are restricted to no particular species of evidence, or any peculiar sources _of information” '(p. 171). It does not by any means follow that they may receive and act upon surreptitious communications from the prevailing party, but the foregoing considerations justify the conclusion that the bare fact of the reception by the commissioners of a communication from the prevailing party, of the character above described, without the knowledge of his adversary, is not to vitiate their report, where there is no reason to suppose that the result was affected thereby. ( Wethersfield v. Humphrey, 20 Conn., 226 ; Goodwin v. Wethersfield, 43 id., 439.)

The order appealed from should be reversed, with ten dollars costs and disbursements.

HaediN and BarKer, JJ., concurred.

So ordered.


author: Smith, P. J.:

text:
    JAMES J. O’DEA, Appellant, v. MARY O’DEA, Respondent.

      Action to have a ma/rriage declared void — pozoer of the court to awa/rd a counsel fee and alimony to the wife.

    In an action brought by a husband to have his marriage with the defendant declared void, on the ground that she had a former husband living at the time it was celebrated, the court has power to make an order allowing the defendant a counsel fee and alimony pendente lite.

    Appeal from an order of the Monroe Special Term allowing the defendant a counsel fee and alimony pendente lite in an action brought by the husband to have the marriage declared void, on the ground that the defendant had a former husband living at the time of such marriage.

      P. B. jkhilett and E. P>. Smith, for the appellant.

      Be L. & W. B. Crittenden, for the respondent.
   Smith, P. J.:

The counsel for the appellant contends that the Code of Civil Procedure has taken away the power of this court, as the successor of the Court of Chancery, to make such an order as is the subject of this appeal. His argument is that section 1769, which is the only section of the Code recognizing the power of the court to make an order of that kind, applies only to actions brought to obtain a divorce, absolute or limited, for a cause arising after marriage, and in that particular, has worked a change in the statute. Put there is no such change in fact. The statutory provision on the subject, previous to the Code, was contained in section 68. (2 P. S., 148.) That section is a part of “ article fifth,” the provisions of which were applicable only to the two preceding articles, and not to article second, which related to divorces on the ground of the nullity of the marriage contract. The term divorce,” as used in section 58, referred only to a divorce for cause arising after marriage, as is apparent from the heading of “ article fifth.” This construction was given to section 58 by Papallo, J., in Griffin v. Griffin, (47 N. Y., 134, 136). That case, and numerous others there cited, hold that the power in question exists independently of statute, and as an incident to the jurisdiction of the court in actions for divorce on the ground of nullity. To the same effect is Brinkley v. Brinkley (50 N. Y., 184).

The motion for the order was noticed before the plaintiff appealed from the judgment of this court reversing the judgment of divorce, and the appeal did not affect the power of the Special Term to make the order.

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

HaediN and BaeKEe, JJ., concurred.

Affirmed.


text:
    ISAAC R. PHARIS, Appellant, v. R. NELSON GERE, RESPONDENT.

      Demand for damages in the complaint — condition upon which the amount claimed may he increased after verdict — the plaintiff will not be allowed to treble the damages found by the jury if the increased amount will exceed the sum demanded' in the complaint.

    The first count in the complaint in this action alleged a forcible entry and' detainer by the defendant upon lands of the plaintiff, to the latter’s damage to-the sum of $3,000, and that by reason of the statute relating thereto, the defendant was liable to pay treble the amount of said damages, and it then demanded a judgment for $3,000, besides costs. The second count alleged a forcible detainer of the said lands to the plaintiff’s damage to the sum of $3,000. The complaint, “on account of the foregoing premises,” demanded a judgment for $3,000, besides the costs of the action. Upon the trial the jury, under the instruction of. the court, found the actual damages to be $2,250. The plaintiff moved to increase the claim for damages to $7,000, and for leave-to treble the damages found by the jury. The court denied the motion to-increase the amount claimed in the complaint, but allowed the plaintiff to-treble the damages, provided he would stipulate to remit all in excess of $3,000- and interest from the date of the verdict.

      Held, that the order was proper.
    Appeal from an order made at the Onondaga Circuit and Special Term, denying the plaintiff’s motion to amend the complaint herein after verdict, by increasing the claim for damages therein to correspond with the verdict, and refusing to allow the plaintiff to treble-the damages found by the jury, except upon the condition that he remit the excess beyond the amount of the verdict and interest thereon from the time it was rendered.

      Goodelle dt Nottingham, for the appellant.

      Kennedy <& Traay, for the respondent.
   Smith, P. J.:

It has long been settled that the court will not amend the complaint after verdict by increasing the amount of damages for which judgment is demanded, without setting aside the verdict and granting a new trial, to give the defendant an opportunity to defend against the enlarged claim. Accordingly in all actions for the recovery of damages, whether sounding in tort or on contract, tbe sum in tbe conclusion of tbe declaration or complaint must be sufficient to cover the real demand, and it would be unjust to allow it to be enlarged after verdict without granting a new trial, as the defendant may have gone to trial relying that no more damages than the sum claimed could be recovered against him. (Pilford’s case, 10 Co., 117 a, í.; Tomlinson v. Blacksmith, 7 T. R., 128; 1 Ch. Pl. [14th Am. ed.], 339, 418; Curtiss v. Lawrence, 17 Johns., 111; Dox v. Dey, 3 Wend., 356; Fish v. Dodge, 1 Den., 311; Corning v. Corning, 2 Seld., 97; Coulter v. Express Company, 5 Lans., 67; Decker v. Parsons, 11 Hun, 295.) The Code has not •changed the rule. [Corning v. Corning; Becker v. Parsons, supra.)

The complaint in this action contained two counts: the first charged a forcible entry and detainer upon lands of the plaintiff to his damage of $3,000, and alleged that thereby the defendant by force of section four of the statute of trespass on lands ’ forfeited and became liable to pay treble the amount of said damages,” and the same count concluded by a demand of judgment for the sum of $3,000 .besides costs. • The second count alleged a forcible detainer of the same lands to the plaintiff’s damage of $3,000. The complaint concluded as follows: “ Wherefore, on account of the foregoing premises, said plaintiff demands judgment against said defendant in the sum of $3,000, besides costs of this action.” At the trial the court instructed the jury that they had nothing to do with the question of treble damages, but that was for the court alone, and they were only to find the actual damages, if any, sustained by the plaintiff. The jury by their verdict found, under the first count, that there was a forcible detainer, and found for the plaintiff in the sum of $2,250. Thereupon the plaintiff moved to amend the complaint by increasing the amount claimed in the prayer thereof from $3,000 to $7,000,.and that the amount of .damages found by the jury be trebled. The court denied the motion to amend, but gave the plaintiff leave to enter an order multiplying the amount of damages found by the jury by three, upon his filing a stipulation remitting all of said sum so resulting in excess of $3,000 and interest thereon from the' date of the verdict, and to enter a judgment for said sum of $3,000 with interest, and no more.

The 'order was strictly in accordance with the rule and practice of the court above stated. The complaint claimed only $3,000 damages. The fact that the first count alleged that the defendant had become liable to pay treble damages, did not enlarge the claim for damages made at the conclusion of that count and at the conclusion of the complaint. The plaintiff having limited his claim for damages to the sum of $3,000, could not take judgment for any greater sum, either as single or treble damages.

The motion to amend was properly denied. So far as appears, the plaintiff asked to be allowed to amend unconditionally and not upon the usual terms of paying costs and táfing a new trial.

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

Hardin and Barker, JJ., concurred.

So ordered.


author: Hardin, J.;

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

      JSsidence — opinion of a witness as to the solvency of a tim’d person — when it is inadmissible — when he must state facts only.

    Certiorari, in the nature of a writ of error founded on a bill of ■exceptions, to the Court of Sessions of Allegany county to review a trial and conviction of the plaintiff in error for false pretenses in obtaining moneys by way of deposits in the banking-house of York & Chamberlain, in the town of Wellsville, in said county ■of Allegany.
    The plaintiff in error was indicted in Allegany county for having procured deposits of money to be made with the firm of York & Chamberlain, a banking firm composed of Hiram York and Calvin T. Chamberlain, which was carrying on business in Wellsville, in •said county, by means of false pretenses, “ on or about the 1st day of January, 1878.” The indictment, among other things, charged the plaintiff in error with having falsely represented to Leonard H. Frisbey “ that ■ he and one Calvin T. Chamberlain wore copartners in the banking business * * * under the firm name of York & Chamberlain; that said Chamberlain was worth from $50,000 to $100,000, and that said bank was solvent, sound- and good,” and that Frisbey delivered to the said Hiram York $1,500, and “did then and there deposit the said money in the banking-house, which was then being run by said York under the name of York & Chamberlain, * * * as was alleged by said York at that time, and in which said Chamberlain was a copartner as said York then ■and there alleged; * * * and the*said Hiram York did then and there designedly receive and obtain of the said Leonard H. Frisbey tbe said proper moneys and valuable tilings * * * by means of tbe false pretenses and representations aforesaid, and got him to deposit the same in and with said banking-house and with intent to cheat and defraud the said Leonard LI. Frisbey of the same.” The indictment then alleged that said York & Chamberlain were not copartners in the banking business, doing business at Wellsville * * * under the firm name of York & Chamberlain; that “said Chamberlain was not in any manner connected with or interested in the banking-house or bank where said Frisbey deposited his said money as aforesaid; that York was running said banking-house alone and not as a copartner with said Chamberlain ; that said banking-house or bank was not solvent, sound and good, but was insolvent, unsound and not good, and the pretenses and representations so made as aforesaid by the said York to the said Leonard H. Frisbey were in all respects utterly false and untrue.”
    During the trial evidence was given in respect to Chamberlain’s connection with the business, tending to show that he had not dissolved his copartnership with York, which had existed many years prior to the time named in the indictment, as that at which the representations were made. It appeared Chamberlain died the last ■of June, 1878.
    The court at General Term said : “ Proof was given tending to show the representations were made as alleged as to the pecuniary standing of Chamberlain, as alleged in the indictment. There was no definite and positive proof thereof showing his assets and liabilities at the time of his death, nor in the month of January, 1878. But instead thereof, one Gabriel Bishop was called as a witness by •the people, who testified ‘ that he was conversant with Mr. Chamberlain’s business, and knew of his real estate and his personal estate, and of his bank stock and of his debts, and knew of this in 1877, and up to June, 1878.’
    “ The case states, viz.: ‘ He was then asked what, in his opinion, was the financial standing of Calvin T. Chamberlain from October, 1877, to February, 1878.’ This was objected on numerous grounds, and among others, on the ground that the witness should be confined to facts; that his opinion was not evidence.
    “ The witness was asked by the defendant’s counsel if the will of Chamberlain was admitted to probate, and he said it was, and that he was one of the executors, and that debts had been presented to him as executor; that the will disposed of real and personal estate j that the real estate was a matter of record, and mortgages given to Chamberlain and owned by him, were of record; and that Chamberlain owned a large tract of timber land in Pennsylvania, which was a matter of record.
    “.The objections were renewed and they were Overruled, cand the witness was permitted to give his opinion, and stated that he was of the opinion that Chamberlain was during such time insolvent/ Defendant took an exception to the reception of such testimony, and asked to strike out such testimony, and the motion therefor was denied, and the defendant again excepted.
    “ The ruling calls upon us to consider whether the opinion of the witness was competent. He was not asked to state as a fact the standing of Chamberlain financially, but his opinion in respect to it. The question did not call for the facts known to the witness, nor as to the fact of what his standing ■ was, but squarely for the opinion of the witness. In Thompson v. Hall (45 Barb., 216), the court said of a question in respect to a party’s being able to pay his debts at a time mentioned, that it was competent as a fact, and he added, “I do not understand the question as calling for the opinion of the witness simply.” That case is not an authority to sustain the ruling before us, but, on the contrary, indicates that the learned judge who wrote the opinion was adverse to the reception of a witness’ opinion as to the financial standing of a party. In Denman v. Campbell (7 Hun, 88), it was held error to allow a question put in the following words, viz.: “ Is Donal Campbell a man of responsibility ? ” Slvngerland v. Bennett (6 Sup. Ct. [T. & C.], 446), does not contain the ruling made in this case in hand. There the question collaterally arose as to the. standing of a party reputed to be a man of wealth. The repute of the party inquired about was not directly involved in the issue. It was very important in this case to establish the financial standing and ability of Chamberlain in January, 1878, and the fact was one which might have been proven by satisfactory testimony. The opinion of Bishop was not admissible, and it was wholly insufficient to prove what Chamberlain was worth in January, 1878. (See Haggerty v. Broolclyn City R. R. Co., 6 Abbott N. C., 131.)

      “ In the course of the charge delivered, by the court, the standing of Chamberlain, the evidence bearing upon the representation as to his being worth $50,000 to $100,000, and the evidence as to his insolvency were referred to, and the jury were left to find that the representation was made that he was worth $50,000 to $100,000, and that, when it was made, Chamberlain in fact was insolvent, and to convict upon finding such facts.
    “ The evidence of Bishop’s opinion was thereby made important and influential before the jury, and the erroneous reception of his opinion may have produced the conviction. Bor that error we think there should be a reversal and a new trial.

      “ Order and conviction reversed, and proceedings remitted to the Court of Sessions of Alleghany county, with directions for a new trial.”

      Hamilton Ward, for the plaintiff in error.

      George W. Lmeridge, district attorney, for the people, defendants in error.
   Opinion by

Hardin, J.;

Smith, P. J. and Barker, J., concurred.

So ordered.


author: Smith, P. J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. JOHN McKEON, Appellant.

      Manslaughter in the first degree — 2 B. 8., 661, see. 6— One who causes the death of another by an unlawful assault may be conmeted under it.

    Appeal from a judgment of the Court of Sessions of Seneca county, entered upon a conviction of the appellant of the crime of manslaughter in the first degree.
    The person killed was Eliza Moreland, a married woman, advanced in pregnancy about seven months at the time of the offense. The evidence tended to show that the defendant after having repeatedly demanded that the deceased let him have liquor at her saloon on a Sunday, and having been refused, with his clenched fist struck the deceased a severe blow upon her right breast, producing premature labor and convulsions, and followed by her death about fourteen hours after the blow was struck.

      The indictment contains two counts, the first of which charges that the defendant feloniously assaulted the deceased and inflicted upon her bruises and contusions of which she languished and died; the second count charges that the beating was done in a “ cruel and unusual manner.”
    The court at General Term said: “ The only statutory provision under which the conviction could be sustained, if at all, is in the following words: ‘ The killing of a human being -without a design to effect death by the act, procurement or culpable negligence of any other, while such other is engaged: 1. In the perpetration of any crime or misdemeanor not amounting to felony; or, 2. In an attempt to perpetrate any such crime or misdemeanor. In cases where such killing would be murder at the common law, shall be deemed manslaughter in the first degree.’ (2 R. S., 661, § 6.)
    “ In the present case the only crime or misdemeanor in which the defendant was engaged, was the assault and battery upon the person of the deceased, which produced her death. The defendant’s counsel contends that in order to bring a case within the definition of manslaughter in the first degree, above quoted, it is necessary to show that the accused was committing or attempting to commit some offense other than that of intentional violence upon the person killed. The question has already received some discussion in the courts, and in the view which we take of the cases the weight of authority must be regarded as adverse to the contention of the accused. The only decision in his support is that made by a divided court in the People v. Butler (3 Park. O. R., 377). Judge Strong, who expressed the views of the majority in that case, cited no authority except the opinion of Bronson, J., in the People v. Rector (19 W.end., 605). That -was a dissenting opinion, and in conflict with it are the opinions of CoweNj J., in the same case (pp. 592-3), and of Parker, J., in Darry v. The People (10 N. Y., 161-2), but they were not referred to by Judge Strong.
    The recent case of Buel v. The People (78 N. Y., 499), in which the Court of Appeals affirmed the deci|jon of the General Term in the Third Department (reported in 18 Hun, 489), we conceive overrules in effect the decision in the case of Butler. That was a conviction of murder in the first degree under 2 Revised Statute, 657 (§ 5), the language of which is the Same as that of the section under consideration, except that under section 5 an ingredient of the offense is that the person causing the death of another must be engaged at the time in the commission of, or an attempt to commit, a felony, instead of a misdemeanor. The person killed, in that case, was a young woman, and the evidence tended to show that her death resulted from strangulation produced by a strap or rope drawn around her neck by the prisoner while committing a rape upon her. The Greneral Term sustained the conviction upon the ground that the death resulted, not from the rape, but from the strangling, which was an act distinct from the rape. But the Court of Appeals did not consider that view of the matter. The argument of the prisoner’s counsel was that as the death resulted directly from the force and violence used in the commission of the rape, the statute did not apply. That contention the court ruled against expressly, and held that if death ensued in consequence of the force and violence used in the commission of the rape, the offense was within the definition of murder in the first degree (p. 497). In the same case, the opinion of Bronson, J., in the Bector case, and the decision in Butler’s case were adverted to and repudiated (p. 500). We think the authority of that case requires us to overrule the contention of the appellant’s counsel, and to hold that as the jury have found that the death was caused by the defendant while he was engaged in the commission of the assault and battery upon the deceased, the case is within the statutory definition of manslaughter in the first degree.
    “ It is insisted by the appellant’s counsel that the case is not within the statute, for the reason that it would not have constituted murder at the common law. We understand the common law to have been otherwise. ‘ Where,’ says Bussell, in his treatise on Crimes, ‘ the intent is to do some great bodily harm to another, and death ensues, it will be murder; as if A. intend only to heat B., in anger or from pre-conceived malice, and happen to kill him, it will be no excuse that he did not intend all the mischief that followed, for what he did was malum, in se, and he must be answerable for its consequences. He beat B. with an intention of doing him some bodily harm, and is therefore answerable for all the harm he did.’ (Yol. 1, p. 540; see, also, 1 East’s Crim. Law, 256, § 32; and Foster’s Orim. Law, 261, § 3.)

      “ In cases where the use of force was not malum in se, as where a master undertook to correct his servant, or a schoolmaster his scholar, causing death, it must have appeared that the beating was in a cruel and unusual manner, in order to constitute murder, but we do not understand that was a requisite in cases of unjustifiable beating.” * * *

      Manning dé Kendig and George Rabies, for the appellant.

      William O. Hazelton, district-attorney, and Peter H. Wan Auken, for the respondent.
   Opinion by

Smith, P. J.;

Hardin and Barker, JJ., concurred.

Conviction and judgment affirmed.


text:
    Jane B. Wheeler, Respondent, v. Henry S. Dunning, Appellant.—
   Motion to strike cause from preferred calendar denied.


text:
    The Davis Sewing Machine Company of Watertown, New York, Respondent, v. William J. Best, as Receiver, etc., Appellant.—
   Motion for reargument denied.


text:
    Patrick H. Agan, Respondent, v. George W. Hey, Appellant.—
   Motion for reargument denied. Memorandum filed with clerk of Onondaga county.


text:
    In the Matter of the Final Accounting of Reuben Leffingwell, as Administrator, etc. —
   Reargument ordered and leave given to each party to move the Surrogate’s Court to open its decree and order of confirmation, and to grant leave to file exceptions to the referee’s report nunc pro tunc. This order is made upon the condition that the appellant, within twenty days, pay to the respondent’s attorney forty dollars argument fee of the appeal to this court, and the respondent’s disbursements incurred in the entry of judgment of affirmance, and if such payment be not made the motion is denied.


text:
    The National Exchange Bank of Auburn, Plaintiff, v. Henry Ogden, Defendant, Impleaded, etc. —
   Motion denied.


text:
    Mary Flannery, Appellant, v. Henry James and another, Respondents.—
   Motion for reargument granted, unless defendants stipulate within five days to modify the order appealed from by striking out the provision requiring plaintiff and her husband to vacate the premises and surrender possession thereof, in which case the motion for argument is denied, without costs to either party, and the plaintiff is to have twenty days from the tendering of such stipulation to comply with the terms of said order as so modified.


text:
    James G. Ross, Respondent, v. Rinaldo H. Stilwell, Appellant.—
   Motion denied.


text:
    George H. Converse, Respondent, v. Artemus B. Walker, Appellant.—
   Motion to modify order granted so that it will appear that the new trial was granted on the exceptions taken at the trial.


author: Hardin, J.

text:
    Carrie E. Clark, Appellant, v. The Rochester City and Brighton Railway Company, Respondent.

   — Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Hardin, J.


author: Barker, J.

text:
    M. Cornelia Brown, Appellant, v. Mary A. Warner, Respondent, Impleaded, etc.

   ■— Judgment reversed and new trial ordered before another referee, costs to abide'event. Opinion by

Barker, J.


author: Hardin and Barker, JJ.

text:
    Mary A. Brick, as Administratrix, etc., Respondent, v. The Rochester, New York and Pennsylvania Railroad Company, Appellant.

   — New trial denied and judgment ordered for plaintiff on the verdict. Opinions by

Hardin and Barker, JJ.


text:
    Homer H. Woodward and others, Appellants, v. The Mutual Life Insurance Company of New York, Respondent, Impleaded, etc.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Hardin, J.


text:
    Lewis J. Goddard, as Receiver, etc., Appellant, v. Stephen Stiles, Respondent.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Hardin, J.


author: Barker and Hardin, JJ.

text:
    George A. Green, Respondent, v. Hathorn Burt, Appellant.

   Order affirmed, witli ten dollars costs and disbursements, with leave to answer on payment of such costs and disbursements and the costs awarded at Special Term. Opinions by

Barker and Hardin, JJ.


text:
    Mary Kane, Appellant, v. John Kane and others, Respondents.

   Order reversed, with ten dollars costs and disbursements. Opinion by

Barker, J.


author: Smith, P. J.

text:
    Alfred B. Dewey, Appellant, v. Sarah M. Durham, as Administratrix, etc., Respondent.

   — Judgment and order affirmed, with costs, including ten dollars costs of one of the appeals from said orders, and disbursements in both of said appeals. Opinion by

Smith, P. J.


text:
    Horatio N. Ege and Benjamin W. Oris, Respondents, v. George Garfield, Assignee, etc., Appellant.

   — Judgment modified so as to conform to the report of the referee, and as modified affirmed, with costs. Opinion by

Hardin, J.


text:
    Lewis C. Reed, Respondent, v. Isaac Moore, Appellant.

   — Order reversed, with ten dollars costs and disbursements. Reid, that the reduction of the amount of the claim of the respective parties at the trial ivas equivalent to an amendment of the pleadings in those respects.


text:
    Claudius V. B. Barse and others, Respondents, v. Thomas Kelly, Appellant, Impleaded, etc.

   — Order affirmed, with ten dollars costs and disbursements. Opinion by

Hardin, J.


text:
    John Jones, as Administrator, etc., Respondent, v. The Utica and Black River Railroad Company, Appellant.

   — Judgment and order reversed and new trial ordered, costs to abide event Opinion by

Barker, J.


text:
    The People of the State of New York, Respondents, v. Austin Persons, Appellant.

   — Judgment and conviction reversed, and new trial ordered in the Ontario County Sessions. Opinion by

Hardin, J.


text:
    Owen D. Phelps, Respondent, v. Ella S. Davis, as Executrix, etc., Appellant.

   — Order modified by allowing defense of statute of limitations to be interposed on complying with terms of the order as to costs, otherwise order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of Will of Timothy Clark, Deceased.

   — Decree of surrogate reversed and the question whether the execution of the will was procured by undue influence ordered to be tried by a jury at a Circuit Court in the county of Genesee. The costs of this appeal to abide the event of a new trial. Opinion by

Smith, P. J.


text:
    The Town of Wheatland and others, Plaintiffs, v. Henry A. Taylor and others, Defendants.

   — New trial denied and judgment ordered for defendant on the verdict. Opinion by

Hardin, J.


author: ITardin, J.

text:
    Henry Rice, Respondent, v. Thomas Cannan, Appellant.

   — Judg- • ment reversed and new trial ordered, costs to abide event. Opinion by

ITardin, J.


text:
    Charles S. Griffin, Respondent, v. Cornelia C. Gray and David Gray, Appellants.

   — Judgment affirmed on the opinion of Mr. Justice Merwin, at Special Term, with costs to the respondents.


text:
    Lester B. Faulkner, Respondent, v. Andrew McCurdy, Appellant.

   — In case plaintiff stipulates to strike out the damages allowed, the judgment so modified is affirmed, with costs. If plaintiff does not so stipulate, the judgment is reversed as to damages and affirmed in all other respects, and a new trial is granted as to the amount of damages only ; and in case a new trial is had, if the amount of damages is reduced upon such new trial, the costs of this appeal shall be paid by the plaintiff, otherwise by the defendant. Opinion by

Smith, P. J.


text:
    Andrew Holling and another, Respondents, v. Lathrop S. Sprague, Appellant, Impleaded, etc.—
   Judgment reversed and new trial ordered in the Wayne County Court, costs to abide event. Opinion by

Hardin, J.


text:
    Robert Baker, Respondent, v. John McLaughlin, Appellant.—
   Judgment affirmed, with costs. Opinion by

Smith, P. J.


author: Barker, J.;

text:
    John P. Harvey, Appellant, v. The Village of Little Falls, Respondent.—
   Judgment reversed and judgment ordered for the plaintiff on the demurrer, with leave to defendant to answer on payment of the costs of this appeal and of the demurrer. Opinion by

Barker, J.;

Hardin, J., not voting.


text:
    Willard H. Muzzy, Respondent, v. William G. Cable, Appellant.—
   Judgment affirmed. Opinion by

Hardin, J.


text:
    Jacob Williams, Respondent, v. Ira B. Sedore and another, as Administrators, etc., Appellants.

   — • Judgment and order reversed and new trial ordered Before another referee to be appointed at Special Term, with costs to abide the event. Opinion by

Barker, J.


text:
    James Coddington, Assignee, etc., Respondent, v. Abram Vanderventer and others, Appellants.—
   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    The Discount and Deposit Bank of Clarion, Appellant, v. Samuel Osterhoudt and another, Respondents.

   — Judgment and order reversed and new trial ordered, costs to abide event. Opinion by

Smith, P. J.;

Barker, J., not sitting.


text:
    In the Matter of the Probate of the Paper Writings Propounded as the Last Will, Testament and Codicil of Malvina M. Seabra, Deceased.—

   Decree and the three orders appealed from reversed, with costs of the appeal from the decree only payable out of the fund in the final award of costs. Opinion by

Barker, J.


text:
    Jeremiah B. Taylor, Respondent, v. John J. Meldram, Appellant.—
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Smith, P. J.


text:
    The Metropolitan Bank of the City of New York, Plaintiff, v. William B. Sirret, Defendant, Impleaded, etc.

   — New trial ordered, costs to abide event. Opinion by

Hardin, J.


text:
    James Gordon, Respondent, v. Jacob Skillman, Appellant.

   — Judgment reversed and new trial ordered, costs to abide event. Opinion by

Barker, J.


text:
    A. Barton Hepburn, as Receiver, etc., Appellant, v. William H. Montgomery, Respondent (and two other actions in favor of the same plaintiff).
   — Judgment in each action affirmed, with the costs of one appeal only and the disbursements in each. Opinion by

Smith, P. J.


text:
    Margaret Drury, Appellant, v. Margaret Wigg, as Administratrix, Respondent.

   — ■ Judgment affirmed. Opinion by

Hardin, J.


text:
    Henry Rogers, as Overseer, etc., Appellant, v. Joseph E. Massoth, Respondent (and nineteen other cases in favor of same plaintiff against other defendants).
   — Order in each case affirmed, with ten dollars costs in one action and disbursements in all. Opinion by

Hardin, J.;

Smith, P. J., not voting.


author: Per Curiam /

text:
    In the Matter of the Application of the Lackawanna and Pittsburg Railroad Company to acquire Land of Stephen N. Bennett and others.
   — Order reversed and report set aside and new appraisal ordered before other commissioners to be appointed, with costs of this appeal to be paid by the petitioner. Opinion

Per Curiam /

Barker, J;, not voting.


text:
    John A. O’Rielly, Respondent, v. The Corporation of the London Assurance, Appellant.

   — Judgment affirmed. Opinion by

Hardin, J.


text:
    Robert Lyman, Respondent, v. Louisa Royce and others, Administrators, Appellants.

   — Judgment reversed and new trial ordered before another referee, costs to abide event, unless plaintiff stipulates to reduce the judgment $334.89 and any -interest allowed thereon, in which case the judgment as so modified is affirmed, without costs of this appeal to either party. Opinion by

Hardin, J.


text:
    John P. McGovern and others, Appellants, v. Evolin B. Robertson and others, Respondents.

   — -Order reversed and judgment set aside, with ten dollars costs and disbursements. Opinión by

Barker, J.


text:
    Isaac Hampton, Respondent, v. Peter Depuy and another, Executors, etc., Appellants.—
   Judgment reversed and new trial ordered before another referee, costs to abide event unless plaintiff stipulates to reduce judgment to the sum of $170.38 with six years interest thereon, in which case the judgment as so reduced is affirmed, without costs of this appeal to either party. Opinion by

Smith, P. J.


text:
    Eugene E. Lewis, as Executor, etc., Respondent, v. Enos Merritt, Appellant.

   — -Judgment and order affirmed. Opinion by

Barker, J.


text:
    Susan Lenhart, Administratrix, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.—
   Judgment and order affirmed. Opinion by

Smith, P. J.;

Barker, J., not voting.


text:
    Betsey Gay and another, Administrators, etc., Plaintiffs, v. The New York, Lake Erie and Western Railroad Company, Defendants.—
   New trial ordered, costs to abide event. Opinion by

Hardin, J.;

Barker, J., not sitting.


author: Smith, P.'J.

text:
    Margaret Kearney, as Administratrix, etc., Respondent, v. George H. Thompson and another, Appellants.—
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P.'J.


text:
    Maria Eno, Respondent, v. Rufus Diefendorf, Appellant.

   — - Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    Stephen S. Wilson, Appellant, v. Pardon T. Dix and another Respondents.—
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Barker, J.


text:
    Ralph T. Wood, Respondent, v. Jane Holmes, Executrix, etc., Appellant.—
   Judgment reversed and new trial ordered in the Yates County Court, costs to abide event. The orders appealed from affirmed, with costs. Opinion by

Hardin, J.


text:
    Charles G. Judd and another, Respondents, v. George W. Baskin, Appellant.—
   Order affirmed. Opinion by

Hardin, J.


text:
    The People of the State of New York ex rel. Nathan Short and others, Appellants, v. Orrin S. Bacon, Sheriff, etc., Respondent.—
   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    Patrick Butler, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

   — Judgment reversed and new trial ordered, costs to abide event. Opinion by

Barker, J.


text:
    Lemuel S. Palmer and others, Appellants, v. Emily E. Hunter and others, Respondents.

   — Judgment affirmed. Opinion by

Hardin, J.


text:
    Cyrus H. Wilbur and others, Respondents, v. Asa T. Soule, Appellant. —
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Distribution of the Surplus Moneys Arising from the Sale of the Real Estate of John Logan, Deceased.

   — So much of the decree as is appealed from reversed, with costs to the appellant, and the proceedings remitted’to the surrogate’s court of Monroe county, to confirm the report of the referee, and to distribute the fund in accordance therewith. Opinion by

Hardin, J.;

Smith, P. J., not voting.


text:
    Robert R. Westover, as Executor, etc., Respondent, v. The Ætna Life Insurance Company, Appellant.

   ■ — ■ New trial denied, order affirmed and judgment made absolute. Opinion by

Barker, J.


text:
    George W. Wildrich, Appellant, v. Newton De Vinney, Respondent. —
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith, P. J.


text:
    Margaret W. Corson v. John Wilkinson and others, Executors, etc.

   — •Re-argument ordered upon the question whether the executors have power to submit under section 1279 of the Code so as to bind all the legatees in interest.


text:
    The People of the State of New York v. William Clemons.
   Motion denied, with leave to renew the same before Mr. Justice Barker, at Chambers, on five days’ notice to Rufus Scott, defendant’s counsel.


author: Learned, P. J.:

text:
    EZRA CAULKINS, Respondent, v. DANFORTH D. BOLTON and MARY L. SCRIBER, as Administrators, etc., of ZARA COMSTOCK, Deceased, Appellants, and JOHN F. GRAY, Administrator, etc., of LUCINDA COMSTOCK, Deceased, Respondent.

      Interpleader — effect of an executor’s talcing a security in his own. name, upon the loan of funds of the estate — his executors a/re entitled to collect it.

    Lucinda Comstock, executrix of Zara Comstock, deceased, loaned money belonging to his estate to the plaintiff, and took back his bond and mortgage therefor in her own name, and not as executrix. By his will she was entitled to the use of all the property of the deceased during her natural life for her support, and also to use any portion of the principal which might be necessary for that purpose, of which necessity she was made the sole judge. Lucinda Comstock having died, letters of administration were issued upon her estate, and thereafter letters of administration, with the .will annexed, de bonis non, were issued upon the estate of the said Zara. The bond and mortgage being in the possession of the administrators of Zara, and the administrator of Lucinda claiming to be entitled to recover the amount due thereon, the plaintiff brought this action of interpleader to have it decided to which party he should pay the said amount.

      Held, that he was entitled to maintain the action.
    That the money should he paid to the executors of Lucinda to whose intestate, as an individual, the bond and mortgage were given.
    Appeal from a judgment, entered upon tbe trial of tliis action by the court without a jury'.

      JE. M. Harris, for the appellants Bolton and Scriber.

      H. Stwrgis, for the plaintiff, respondent.

      Samuel A. Bowen, for the respondent John F. Gray.
   Learned, P. J.:

This is an action of interpleader brought by a mortgagor to-determine to whom he may pay the mortgage.

Lucinda Comstock, executrix of Zara Comstock, deceased , loaned money of the estate to the plaintiff and took this bond and mortgage in her own name, not as executrix. She was, under the will, entitled to the use of all the property of Zara Comstock during her natural life for her support, and also entitled, to use any portion of the principal, if necessary, for her support, and of this she was to be the sole judge.

Lucinda Comstock died. "Letters of administration on her estate were issued November 14, 1881, to Gray, one of the defendants. Letters of administration with the will annexed de bonis non of the estate of Zara Comstock were issued October 31,1881, to the defendants Bolton and Scriber. The bond and mortgage are in their possession and they claim the payment. Gray also, as administrator of Lucinda Comstock, claims the payment.

We think the bill of interpleader was properly brought. The plaintiff ought not to be required to pay Gray without receiving the bond and mortgage, nor to pay Bolton and Scriber when the administrator of the mortgagee claimed the debt.

Again, it seems to us that the learned justice correctly observed that this was not an action for an accounting. It is not an action in which the final rights between Lucinda Comstock, or her estate,, on the one side, and the legatees under the will of Zara Comstock on the other, can be determined. She was entitled, as above seen, to the income for her life, and to the principal, if necessary, and she was to be sole judge as to this necessity. How far then she may have applied in fact the principal, or how far she may have been right in applying the principal to her support, or what the effect may be of this clause1 in the will; these and other similar questions may probably be raised on an accounting between the representatives of the estate and those of the estate of Zara Corn-stock. We say nothing on those questions.

It is enough that this mortgage was taken by her, payable to herself. It cannot then be rightfully taken from her or from her estate without an accounting. To illustrate, the estate of Zara Comstock may be indebted'to her for commissions, or for debts paid, or money advanced. Her estate could not be required to give up property, thus standing in her name, until her demands, if any, should be adjusted. The case of Walter v. Walter (4 Abb. Ct. App. Dec., 512) cited by the appellant illustrates this view. That was •an action for an accounting brought by the administrator de bonis non against the executrix of tlie deceased executor. And the •question arose on a demurrer to the complaint.

Again the case of Luers v. Brunges (56 How. Pr., 282) was an action of foreclosure brought by administrators de bonis non upon a mortgage taken to the original executors as executors as aforesaid, their survivors, successors or assigns.” The letters to these executors had been revoked by the surrogate. There was a demurrer to the complaint which was overruled, and very properly. But the court remarked that if the mortgage had been, in fact, given to the mortgagees individually, and not in their representative character, other questions would have arisen.

Even assuming that the administrator de bonis non is entitled to the unadministered assets, we could not in this action determine that this bond and mortgage was of that character. Because under the will, Lucinda Comstock might have used any portion of the principal necessary for her support. "What appropriation, if any, she made ■ of these moneys to her use, we cannot say in this action. Nor do we mean to determine whether, or not, her estate will be liable to pay the amount of this mortgage to the administrator de bonis non on an accounting. The only question here is whether the mortgagor shall pay to the personal representatives of the mortgagee, or to the representatives of the person of whom the mortgagee was executrix. The contract was made with the mortgagee individually and should be performed to her personal representatives. (See, also, United States v. Walker, 109 U. S., 258.)

The judgment should be affirmed, with costs.

Present — Learned, P. •!., Boards!AN and Potter, JJ.

Judgment affirmed, with costs.


text:
    In the Matter of the Application of the BOSTON, HOOSAC TUNNEL AND WESTERN RAILWAY COMPANY, Appellant, to Acquire Lands of THOMAS H. TURNBULL AND MARY JANE TURNBULL, Respondents.

      Compensation for land takenfor a rail/road— when an apparent existing privilege or license may he treated as valuable by the commissioners.

    One Turnbull owned a farm of about 200 acres, which was divided into two' nearly equal parts by the Erie canal, which ran through it from east to west. The part on the north of the canal was cultivated and upon it were the farm buildings. The part on the south was hilly and there were.no buildings upon it. A railroad company sought to acquire title to a strip of land in the part lying south of the canal; the said strip being about 1,754 feet long and from 290 to 400 feet wide and lying along the line of the canal. Upon this strip'.was a never failing spring, the water from which was conducted in a pipe under the canal to the buildings on the part lying north of the canal, where it was used for the general purposes of the farm, there being no other source of supply on that side. The two parts of the farm were connected by a farm bridge across the canal. The slock which were pastured upon the south part were watered at the canal and at the spring. The pipe was laid under the canal when Turnbull bought the farm, more than thirteen years before the application was made, and it had been used by him ever since without objection made by any person. It did not appear by what authority the pipe had been so laid under the canal.

      Held, that in estimating the damages which would be occasioned by the taking of the said strip by the railroad, the commissioners properly treated the farm as a whole and considered its value to be increased by the connection which had been made between the spring on the south and the buildings on the north part of the farm.
    Appeal from the appraisal and report of commissioners appointed to ascertain and appraise the compensation to be made by the petitioner to Thomas H. Turnbull for certain lands belonging to him which it sought to acquire for railroad purposes.

      Alomo P. Strong, for the appellant.

      Alex. J. Thompson, for the respondent.
   Learned, P. J.:

These are proceedings to acquire title to land, and the railroad company appeals from the appraisal of the commissioners.

The respondent Turnbull is the owner of a farm of about 200 acres, divided into two nearly equal parts by the Erie canal, which runs through it east and west. The part on the north side is cultivated, and upon it are the farm buildings. That on the south side is somewhat hilly, and there are no buildings upon it of any conseqnence. Through this south part the New York, "West Shore and Buffalo Railroad Company had built, or were building, their road, so as to leave about fourteen acres of land between that road and the Erie canal. This piece the petitioners seek to acquire. It is about 1,754 feet long, and varies from about 290 to about 400 feet wide. On this piece of land is a never failing spi’ing of water. Mr. Turn-bull draws from that spring all the water used by him for his house .and barns on the north side of the canal, through a pipe laid under ■the canal. There is, it appears, also a farm bridge across the can,al -connecting the two parts of Mr. Turnbull’s farm. The land on the .south side of the canal is pasture land, and the stock have usually been watered, both at the canal and at the spring; but there is no ■other supply on the north side than that brought from the spring through this pipe, and the pipe was there when Mr. Turnbull bought, which was thirteen years ago.

It will be seen, therefore, that the taking of these fourteen acres by the railroad company deprives Mr. Turnbull of this spring, and •of that use which he makes of it on the north side of the canal. And the principal point which the railroad company makes is, that as the canal is the property of the State, Mr. Turnbull has no right to lay his pipe across that land, and hence that he has no right to the use of the water on the north side of which the company will •deprive him.

In order to present this question the company requested the ■commissioners to rule: 1st. That the owner had no right to lay or maintain the pipe across the canal. On this the commissioners held that there was no proof, And- they could not decide whether the ■owner had any legal right. 2d. That the owner had only a license, and the deprivation of the enjoyment thereof would not be appraised. The commissioners declined so to rule. 3d. That mere license is not property under these proceedings. The commissioners so held. •4th. That the burden rested on thepwner to show by what authority lie maintained the pipes on the land of the State. The commissioners declined so to hold as respects this proceeding.

TÜe value of the fourteen acres alone which are taken, was estimated by Mr. Turnbull at $100 per acre. The commissioners allowed $1,292. It is manifest, therefore, that they estimated the value of this fourteen acres with its spring to the farm as a whole. Now, undoubtedly, as the part on the north and that on the south side together formed one farm, it was right in estimating the damages to consider the diminished value of the whole farm after taking away these fourteen acres. (Henderson v. N. Y. C. R. R , 78 N. Y., 123.) But the company urge that the value of the whole farm was increased, in the opinion of witnesses, by the connection made with the spring through the pipes; that this privilege could have been only a license and, therefore, was not a proper item of value or of damage. We can hardly say that the value of the farm was not in fact increased by reason of this privilege, to call it by that name. It appeared that for thirteen years, at least, the owner had in fact enjoyed it. Any one who was about to purchase the farm would give more for it upon what we may at least call the probability that the State would permit the pipe to continue as it had been. And one witness who was examined as to the value of the whole farm, after estimating the whole at $25,000, said he would make $1,000 difference between a secure right to the spring and one which might be questioned. That would leave the farm $21,000. "Without the fourteen acres he estimated it at $19,000.

But there is another consideration. It appears that there is a farm bridge connecting the two parts of the farm. There is nothing to show that if the privilege of putting a pipe under the canal should be refused, Mr. Turnbull might not put a pipe along his farm bridge, and thus have the benefit of the spring as before. The existence of this farm bridge with the other facts is an abundant answer to the claim of the railroad company that the two parts of this farm were to be treated as separate parcels and the injury to be estimated only to that part which lay on the south side of the canal.

Thus the defendant’s lands were connected by this bridge and furthermore he had enjoyed for thirteen years and was still enjoying this privilege of laying a pipe under the canal. Under these circumstances the railroad company take away fourteen acres and the spring. The question is, how much has the defendant been damaged. We think it would be unreasonable to say that the injury to his farm by loss of this spring could- not be considered until the defendant had affirmatively proved that he had an indefeasible right to maintain the pipes under the canal where it had been so long. He certainly was in the enjoyment of an apparent easement. And we have seen that probably he could transfer, if required, the pipe to the bridge, which he had a right to use.

There are some objections made in regard to evidence. But we see nothing which we deem material. We have in former cases stated our views as to appeals of this kind, and need not repeat them. The commissioners saw the premises and must have judged of the value themselves.

We think the appraisal and report should be affirmed, with costs.

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

A ward and order affirmed, with costs.


author: Learned, P. J.':

text:
    In the Matter of the Application of DANIEL W. TALCOTT, Jr., for a Ferry License.

      License to run a ferry — notice to the owner of the adjoining land must he given— 1854, chap. 226 — 1 R. 8., chap. 16, art. 7, tit. 2; 2 R. 8. (7th ed.), 1268.
    Where an application is made, under chapter 226 of 1854, for a license to run a ferry between the city of Troy and the village of West Troy by a person, other than the owner of the land through which the highway adjoining the ferry runs, the commissioners cannot grant the application , without due proof that notice has been given by the applicant to such owner, .at least eight days before, of his intention to make such application.
    The objection that no such notice has been given may be raised by a person to whom a license to run a rival ferry has theretofore been granted.
    Certiorari to review an order and decision of the board of commissioners to regulate ferries between the city of Troy and the village of West Troy, by which a license was granted to the respondent.

      La Mott W. Rhodes, for the appellant.

      Sarmtel Foster, for the respondent.
   Learned, P. J.':

Section 5 of chapter 226, Laws of 1854, which makes the county judges of Albany and Rensselaer a board of commissioners to. establish ferries, declares that this licensing shall be “ subject to the provisions of title 2 of article 7 of chapter 16 of the first part of the Revised Statutes.” This title 2 is, “ Of the regulation of ferries; ” and gives power to the County Court to license. Sections 2 and 3 declare that no license shall be granted to any person other than the owner of the land through which the highway adjoining the ferry shall run ; unless such owner shall neglect to apply for such license, after notice as therein provided; and they provide, also, that if application be made by a person other than the owner, it shall not be granted until proof of eight days’ notice of such application to the owner. Those provisions then apply to the present case. .

It appears by the papers that the proposed ferry was to be from a point .on the premises of the Burden Iron Company to a point near the foot of Mansion street, in "West Troy. It does not appear that the owners of the property on the east side, the Burden Iron Company, or that the owners of the land on the west side through which Mansion street runs, apply for .this ferry.

Counsel appeared to oppose on behalf of another ferry and also on behalf of a landowner adjoining Mansion street. And objection was taken that no notice had been served upon the landowners.

The respondent claims that, as the act of 1854 requires notice to the mayor of Troy and the president of West Troy, the notices-required by the Revised Statutes are not necessary. But we do not agree with this view. The object of the notice to the owner is that he may avail himself of his right as owner if he chooses to do so. The object of the notices to the mayor and the president is that the-public may be protected in the granting of the license. (Sec. 4 of the act.)

The twelfth section of the act further authorizes one who has received a ferry license to obtain a.certificate from the commissioners (the county judges) as to the necessity of lands, etc., for ferry-houses, etc., and then authorizes the taking of such lands as land is taken for railroads. And the respondent’s counsel urge that this provision protects the riparian owner, and prevents the taking of his land without due compensation. But we think that the Revised Statutes intended more than this. They recognized not merely the right of the owner to compensation for his land, but also his right to the benefit and advantage of running the ferry, if he chose to do so and could give the proper security. This benefit we think the owner still has under the act of 1854. It may be a valuable right to run a ferry, and if the owner is willing to run the ferry and can run it, he should be allowed to do so; at least he should have the opportunity afforded by the eight days’ notice.

Again, the respondent urges that no one can complain of this -want of notice except those, who werfe entitled to it. The parties who bring this certiorari are owners of a ferry in the neighborhood and claim to be injured' by the decision. It seems to us that they may lawfully insist on any of the positive regulations of the statute. It could hardly be claimed that the commissioners might act without the notice to the mayor and to the president required by the act of 1854. The language of the Revised Statutes is equally imperative. 41 No license shall be granted,” etc. “The court shall not grant a license unless ” etc. And if a notice be necessary to the mayor and president, on the same principle it is necessary to the owner when he is not himself the applicant.

We are of the opinion that the order should be reversed and the application denied, without prejudice to its renewal on proper notice.

.Present — Leaened, P. J., Boaedman and Pottee, JJ.

Decision of commissioners reversed, with fifty dollars costs and with disbursements.


author: Learned, P. J.: Potter, J.

text:
    PETER BARTON, Respondent, v. GEORGE SCRAMLING and BURT MATTICE, as Executors, etc., of SAMUEL S. BURNSIDE, Deceased, Appellants.

      Evidence — when a witness is interested, in the event of the action— Oode of Qivil Procedure, sea. 829.
    One Farnbam, a deputy of tbe plaintiff, received an execution against one Bueldey and levied thereunder upon certain property belonging to a Mrs. Buckley, for the taking of which a judgment was recovered by Mrs. Buckley against the plaintiff. This action was brought to recover the amount of the said judgment, against the executors of the attorney who issued the execution,upon a parol indemnity against any loss which might be occasioned by the levy, which he was alleged to have given to the plaintiff. Upon the trial Farnham was called as a witness for the plaintiff to show that the deceased attorney gave the alleged indemnity.

      Held, that he was interested in the event of the action, and that his testimony was inadmissible under section 829 of the Code of Civil Procedure. (Potter, J., dissenting.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.

      Burr Mattice, for tbe appellant.

      Samuel H. Bowen, for tbe respondent.
   Learned, P. J.:

Tbe plaintiff was sheriff; Earnham bis deputy. Tbe plaintiff through Earnham received an execution against one Buckley, which be, through Earnham, enforced against personal property of Mrs. Buckley. For this Mrs. Buckley sued and recovered against plaintiff. The plaintiff’s action seeks to recover against the executors of one Burnside now deceased, the attorney in that execution, upon a parol agreement made by Burnside with Earnham to indemnify him against loss by reason of levying on that personal property.

Farnham is called as a witness; and the objection is taken that he is incompetent under section 829 of the Code of Civil Procedure. He is not a party to this present action. Is he “ interested in the event ? ”

Earnham is called to show that the deceased Burnside indemnified the sheriff against certain wrongful acts which Earnham committed. If the defendant is liable it is because the acts were wrongful; if wrongful, Farnham is liable to the plaintiff and is directly interested in having the plaintiff recover against the indemnitor.

True the judgment recovered against the plaintiff may not be evidence against Farnham if he were not notified to defend. But the fact of his liability to the sheriff could be proved by other means than that judgment.

If this evidence is inadmissible, I do not think the case can be allowed to stand on the other proof.

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

Boardman, J., concurred.

Potter, J.

(dissenting):

This is an appeal from a judgment entered pursuant to an order of this court upon a motion to confirm the referee’s report upon a disputed claim under the statute, and overruling the exceptions taken to the report on behalf of the appellants. A preliminary objection is made by the respondent that the notice of appeal is from the judgment only, and not from the Order directing the judgment, overruling these exceptions and confirming the referee’s reports.

The objection is a technical one, and I think the court would not be warranted in sustaining the objection upon the authorities cited in support of the objection, especially in view of the fact that the case has been fully argued upon its merits, and that in the notice of the appeal from the judgment, the appellants gave the further notice that they intended to bring up for review upon such appeal all the questions of fact and law passed upon by the referee in this action, both upon the trial and at the making of his report.

If I rightly apprehend the appellants’ points, they make no question that a parol promise to indemnify an officer making a levy by a party interested in having the levy made is a valid promise. (Banrry v. Ransom, 2 Kern., 462.)

The first point made by the appellants was that Farnham, who was the deputy of the plaintiff in making the levy, was an ineom-' petent witness under section 829, Code of Civil Procedure, to prove the promise of the deceased to indemnify against-the levy. There is some embarrassment in passing absolutely upon that point upon this appeal. If Farnham, the deputy of the sheriff in making this levy, and for which the plaintiff in this action or claimant in this proceeding was sued, and a recovery had against him, had been notified of or requested to defend the action against the plaintiff, then the judgment against the plaintiff would have been evidence against him for the illegal levy by the sheriff. (Thomas v. Hubbell, 15 N. Y., 407; People ex rel. Tuthill v. Russell, 25 Hun, 526.) In that event he would have been interested, and so incompetent to testify to the communication or agreement which he had with the deceased against his executors. (Sec. 829, Code of Civil Pro.; Miller v. Montgomery, 78 N. Y., 282.) If he had not such notice the judgment against the plaintiff is not evidence against Farnham. Now the case upon appeal leaves the fact of the notice in doubt. Farnham himself testified: The case against plaintiff was tried in July, 1881, after the death of Burnside; I did not attend.” Of course this is mere hearsay, and does not show when or how he heard of the action. The witness Wilbur testified that he notified Farnham of the trial by mail. There is no evidence that Farnham received the letter, and Wilbur’s statement that he notified Farnham, is a conclusion. But I am of the opinion, that if it clearly appeared that Farnham had notice, and so was incompetent, under section 829 (supra), the-evidence is abundant and entirely uncontradicted to prove that Mr. Burnside agreed to indemnify Farnham for making the levy. Indeed the evidence is so conclusive that, without the testimony of Farnham, the referee could not have found against the indemnity, and if he had, his finding would have been set aside. (Schenck v. Dart, 22 N. Y., 420; Johnson v. Hicks, 1 Lans., 150.) Upon appeal in such a case as this the whole case is to be examined as well upon the facts as the law, and the court will not inquire whether witnesses were or were not competent when the facts to which they testified were established by other unobjectionable evidence. (Schenck v. Dart, supra) I do not think that Farnham is incompetent to testify for any other reason or upon any other ground than that the judgment in this action would be evidence for or against him in .an action hereafter to be brought against him. The interest of a witness no longer renders him incompetent to testify (sec. 828), unless it be an interest coupled with the circumstances specified in section 829 of the Code of Civil Procedure. Under the former law, as well as under 829, the witness must be interested in the event of the action in which he is offered as a witness. The witness was not a party to this action, and we have seen that, for want of notice of the action against the sheriff, the judgment in that action would not be evidence for or against him in an action to be hereafter brought against him by his principal, the sheriff. That he might be hereafter sued by his principal for his illegal acts of levying upon the property of another, than the defendant in the execution, is not a legal interest in the event of this action, and is altogether too remote to exclude him as a witness in this action. I doubt if it' were ever held that a wrong-doer was incompetent to testify that another was equally guilty with himself of the wrong in an action against that 'other alone for the wrong. It is true the witness would have a species of interest, such as every man has, in having somebody else answer for his sins or pay his liabilities or his taxes; but that is not an interest, im the event of the action, which renders him incompetent to testify.

The only additional point made by the appellant is the gross negligence of the plaintiff in failing to defend the action against the plaintiff. I do not think that position is tenable. The executors of Burnside and his former law partner, and into whose hands Burnside had placed the case to defend, were, informed of the action and the trial of it, and the counsel of Burnside attended the trial. The duty rested primarily upon Burnside, the indemnitor of the deputy sheriff, rather than upon the sheriff, to defend the action. Besides there is no proof that the facts testified to by the deputy, Farnham, upon this, trial, and which it is claimed would have made a defense in the act:on against the sheriff, were known to the sheriff.

I think the judgment should be affirmed, with costs to be collected out of the estate of Burnside, deceased.

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


author: Learned, P, J.:

text:
    EDMUND C. ALGER, by his Guardian, etc., Respondent, v. JOSEPH C. ALGER, Appellant.

      Jurisdiction — when the courts of this State will not entei'tain jurisdiction over an action affecting trust property in another State.

    One Alice Branch died, a resident of Connecticut, in 1850, leaving a will, which was there duly admitted to prohate, hy which she disposed of her real and personal property, all of which was in that State. Upon the petition of the devisees an act was passed by the general assembly of that State, in 1854, hy which the defendant and one Stanton were appointed trustees and authorized to sell the whole or a portion of the said real estate and invest the proceeds in certain securities, which, together with the increase therefrom, they were to hold and apply in the same manner as the real estate so sold, was itself disposed of hy the will. They were required to give to a court of probate in that State a bond, with sureties, conditioned for the faithful performance of the duties of their office, and which required them to make a return of their doings to the said court and to render an annual account of the trust. No trust was created hy the will, and the act was passed on account of the infancy of the persons interested and the difficulty of keeping the property in repair, etc.
    One of the trustees having died this action was brought hy the son of one of the devisees, who had also died, against the defendant, as surviving trustee, to compel him to account and pay over to the plaintiff the share he was entitled to receive.

      Held, that the court should refuse to entertain jurisdiction over the action and leave the plaintiff to his remedy in the courts of the State of Connecticut, as no circumstances were shown which would prevent him from there receiving any redress to which he might he entitled.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to recover certain moneys alleged to be in the hands of the defendant, as trustee under the will of one-Alice Branch, deceased.

      Duett db Benedict, for the appellant.

      A. W. Curtis, for the respondent.
   Learned, P, J.:

Alice Branch, a resident of Connecticut, died there about May, 1350, having previously made her last will and testament which was duly admitted to probate before tbe Probate Court of Yoluntown, in that State. She was the owner at her death of.real and personal estate, all in Connecticut. In May, 1854, on the petition of the devisees, the general assembly of that State passed a special act, by which this defendant and one Stanton were appointed trustees and authorized to sell the real estate of the deceased (or a certain part of it), to invest the proceeds thereof in certain securities; and to hold the principal and increase, and appropriate it to the same persons and in the same manner as the real estate is itself disposed of in said will, to carry out the ultimate interest (intent?) and purposes of said testator (testatrix ?). Provided that the trustees should first give a bond to the Court of Probate for Yoluntown, with surety payable to the judge thereof, his successors conditioned for the faithful performance of their duties, etc. And in case either or both should die or become incapacitated, said Court of Probate should appoint some person or persons in their place to execute the trust.

Without mentioning the provisions of the will in detail it may be here remarked that the will did . not create a trust. The act was passed on account of the infancy of the persons interested and the difficulty of keeping the property in repair, etc.

Stanton and the ^defendant gave the bond required, and sold the property and received the avails, $3,832.72. The case states that the avails were received in January, 1854, which appears to be prior to the passage of the act. But it seems to be admitted that the sale was in pursuance of the act.

Stanton died before the commencement of this action, and the avails remain in the hands of the defendants. This action is brought by the infant son of one Silas J. Alger, who was a devisee, to recover of this defendant one-fourth of these moneys, and also one-third of one-fourth, which the plaintiff claims now belong to him under the will of said Alice Branch. The defendant resists the claim: First, upon the ground that this court ought not to entertain jurisdiction of the matter, but that the matter belongs to the courts of Connecticut. Second, that the plaintiff was not under the will entitled to recover. Third, that he was not entitled to interest.

The court rendered a judgment for the amount claimed, with interest from the death of Silas J. Alger, and the defendant appeals.

■ The first question then is, whether this court should take jurisdiction of this action ? It may be noticed here that the defendant was executor of the will, and was probably named, for that reason, as trustee in the act. As a condition for the appointment of these trustees they were to give and did give a bond to the Court of Probate of Yoluntown. This binds them to perform their duties, to make a return of their doings to the court, and an annual account of the trust.

What defense to that bond will this judgment be ? The Court of Probate has taken security that they shall return their doings to that court. If an action should be brought upon that bond, no recovery in this State would show performance of the condition. This land was property in court. When sold the avails were property in court, for which, by the very authority for the sale, the trustees were to account in Connecticut. The very able opinion in Parsons v. Lyman (20 N. Y., 103, at page 115 et saq.), seems to me clear on this point. The question is not here presented even of an executor appointed in one State who has received money by voluntary payment in another State. Because in this case, from first to last, the property was in Connecticut, and subject to the courts of Connecticut; unless the fact that the trustee is now here has withdrawn the matter from their jurisdiction.

A ease very similar to the present is that of Peck v. Mead (2 Wend., 470). An executor, by order of a court of probate in Connecticut, had sold lands in the State of Connecticut. He was sued in this State for a debt of the testator. It was held that the funds were not assets here. Por, the court say, the defendant is under bonds to dispose of the avails pursuant to the laws of that State, and it would be manifestly improper by any proceeding in our courts, in reference to funds obtained in Connecticut,' to embarrass the defendant in the discharge of duties incumbent on him there. The argument applies directly and forcibly to this case. (Story Confl. Laws, § 523.)

I do not mean to say that where an express trust is created by act of the donor, a trustee might not be called to an accounting by a cestui que trust in a State other than that where the deed was executed. That is not this case. There was no trust created by the testatrix. The legislature appointed persons to sell the land and account to the court of probate. The whole authority came from the State of Connecticut, and in that State, too, lay the land. (See Story Confl. Laws, § 513, et seq.)

And this rule is more important inasmuch (as was said in Parsons v. Lyman, ut sirpra) the decision of this case must rest upon Connecticut law. It is unnecessary to cite authorities to show that the validity and the construction of this devise will depend on the law of Connecticut. And it is plain also that the statute of Connecticut authorizing a sale, made no change as to tlae rights of the parties, except to substitute personal for real property. The language of the act shows this; and no other construction would be tolerable. Hence in deciding whether this plaintiff or some one else is entitled to take under the devises, we should be obliged to decide by the law of Connecticut. Yet no proof of that law was given on the trial. And the learned counsel for the plaintiff, in his very able brief, has argued the question as to the effect of cross remainders and the like, and as to restraints upon alienation from the decisions and the statute law of this State. And he urges that the statute law of Connecticut will be presumed, in the absence of proof to the contrary, to be the same as our law. That is probably correct as to the common law. (Savage v. O'Neil, 44 N. Y., 298.) That it is so as to our statutes I doubt. That the rule in Shelly’s case has been abolished in New York appears to me to afford no presumption that it has been abolished in Connecticut. Or if it does, we ought not to try this case on presumptions, when there is a proper tribunal to which the defendant is accountable elsewhere.

There is another difficulty. The devise is to Isaac W., Silas J., William II. and Charles O., each to have an equal share of my real estate during their life, then my will is to give it to their male heirs.” Isaac W. is dead, leaving no male heirs, i. e, no male descendants. Silas J. is also dead, as above stated. The other two are living. There has been no division of the fund. William H. and Charles O. should be parties that they may be heard as to the proportion of the fund which should go to the plaintiff.

If we were to attempt a construction of this devise, we might notice certain principles. A deed to a man and to his heirs male, gave a fee simple by the common law. (Coke Lit., § 31, p. 27.) A devise to a man and his heirs male, gave an estate tail; the law supplying the words “ of his body.” (Id.) By our statute an estate which would have been an estate tail previous to July 12, 1782, is a fee simple. (1R. S., m. p. 722, § 3.) The devise over in the will if any one of the first takers died without male heirs (that is, without male issue), is hardly material here, as the contingency did not arise. What however may be the law as to estates tail in Connecticut, we cannot tell. Hence we are in no position to decide upon the rights of the parties.

This refusal of courts to take cognizance of such cases as the present is not always put upon the broad ground of want of jurisdiction ; but often on the ground of comity. This principle requires the courts of one State to leave courts of other States untrammeled in matters which are strictly within their control. There might be circumstances which would deprive the plaintiff of any remedy in the courts of Connecticut, and which from necessity might require this court to take cognizance of the matter. But nothing of that kind appears. The defendant is under an obligation to the judge of probate of Yoluntown, payable to him and to his successors. If the defendant has not faithfully performed his duties, the obligee in the bond may enforce it. And it may be questioned whether the defendant undertook any obligation to any other person, unless upon .some statutory right of action given in Connecticut on such a bond.

On the evidence before the court we think. the complaint should have been dismissed without prejudice to plaintiff’s rights.

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

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

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