text:
    William Crisp, App’lt, v. Francis Rice, Resp’t.
   Ho opinion. Motion to dismiss appeal denied, and the order of the county court of Livingston county appealed from affirmed, with $10 costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    F. Franklin Crittenden et al., Resp’ts, v. Barbara Langnecht, App’lt.
   Ho opinion. Motion to dismiss appeal upon the ground of the non-service of printed papers granted, unless the appellant cause the papers to be served on or before the first Saturday of the term, and pay the respondent $10 costs of the motion.


text:
    Patrick H. Cumming, App’lt, v. Esther C. Cushing, Resp’t.
   Ho opinion, Judgment appealed from affirmed, with costs,


text:
    In the Matter of the Judicial Settlement of the Accounts of Nelson Daggett, as Administrator, etc.
   Ho opinion. Order of surrogate’s court of Cattaraugus county appealed from affirmed, with cosfs.


text:
    Andrew Downie et al., Resp’ts, v. New York Central & Hudson River Railroad Company, App’lt.
   No opinion. Judgment and order appealed from affirmed.


text:
    Aurelia Foy, Resp’t, v. Maud L. Dixon, App’lt.
   Ho opinion. Judgment appealed from affirmed, with costs.


text:
    Farley W. Gray, as Administrator, etc., Resp’t, v. Town of Caneadea, App’lt.
   Ho opinion. Motion for a certificate that the case is of sufficient importance to make it advisable that the judgment of the court of appeals be taken before proceeding further denied.


text:
    L. D. Harmon, as Administrator, etc., Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.
   Ho opinion. Judgment and order appealed from affirmed.


text:
    Arthur W. Hickman, Resp’t, v. Louis K. Purviance, App’lt.
   Ho opinion. Order appealed from reversed, with §10 costs and disbursements, and judgment vacated.


text:
    Percilla Hunter, Resp’t, v. City of Rochester, App’lt.
   Ho opinion. Judgment appealed from affirmed. Bradley, J., not sitting.


text:
    Thomas Jones, as Receiver, etc., Resp’t, v. Ferdinand S. M. Blunn et al., App’lts.
   Ho opinion. Judgment appealed from affirmed, with costs.


text:
    Wallace R. McArthur, App’lt, v. Lydia A. Cameron et al., Resp’ts.
   Ho opinion. Order appealed from affirmed, with $10 costs and disbursements.


text:
    John Metzler, Resp’t, v. Rochester City & Brighton Railroad Company, App’lt.
   Ho opinion. Judgment appealed from reversed, and a new trial granted upon the authority of Birmingham v. Rochester C. & B. Railroad Co., 137 N. Y. 13; 49 St. Rep. 888.


text:
    Thomas A. Myers et al., Resp’ts, v. Rochester & Honeoye V. Railroad Company, App’lt.
   Ho opinion. Judgment appealed from affirmed, with costs.


text:
    J. Felix Nassoiy, Pl’ff, v. David H. Tomlinson et al., Def'ts.
   No opinion-. Judgment and order Appealed from affirmed on the former opinion written in this case. 65 Hun, 491; 48 St. Rep. 182.


text:
    Anthony Neupert et al., Resp’ts, v. Hurbert H. Brooker et al., App’lts.
   No opinion. Order.of the county judge of Niagara county appealed from affirmed, with $10 costs and disbursements, on the authority of First Nat. Bank v. Wilson, 13 Hun, 232.


text:
    Pascal D. Parker et al., App'lts, v. Edward Webster, as Executor, etc., Resp’t.
   Judgment appealed from affirmed. Opinion by Bradley, J. (Withheld from publication by the judge.)


text:
    Henry C. Pierce, App’lt, v. J. A. Reddish, Resp’t.
   No opinion. Judgment of the county court of Steuben county, affirmed, with costs.


author: Per Curiam.

text:
    The People, Resp’t, v. William A. McDowell, App’lt.
    Motion to amend decision so as to certify that the reversal was upon questions of'law only, etc.
   Per Curiam.

It' is true that the new trial in -this case was granted upon the law; hut we cannot certify that upon the facts we would affirm the conviction, for the reason that tye think the evidence establishes, or that the jury might have found as facts, that the board of excise granted the defendant a license, that the commissioners of excise, composing the board, were one a de jure and the other a de facto officer, and that the defendant applied * to such board for a license in good faith, believing the persons composing it to be de jure officers.


text:
    The People, Resp’t, v. Philip Mayo, App’lt.
   No opinion. Motion to amend decision so as to certify that the reversal was upon the law, etc., denied.


text:
    The People, Resp’t, v. Frank Stevens, App’lt.
   No opinion. Motion to dismiss the appeal, and for an affirmance of the conviction, on the ground of nonservice of printed papers granted on default, and the proceedings are remitted to the court of sessions of Monroe county to proceed thereon.


text:
    De Witt C. Reed, Resp’t, v. Nathaniel Chilson et al., App’lts.
   No opinion. Judgment appealed from affirmed, with costs.


text:
    Joseph Reed, App’lt, v. Fred Stanley et al., Resp’ts,
   No opinion. Judgment of the county court of Orleans county affirmed, with costs.


text:
    Horace A. Reynolds, Individually, and as Administrator, etc., Resp’t, v. William P. Sisson et al., App’lts.
   No opinion. Order appealed from affirmed, with $10 costs and disbursements.


text:
    Rochester Distilling Company, Applt, v. Stewart L. Devendorf, Resp’t.
   No opinion. Motion for reargument or for leave to appeal to the court of appeals denied.


text:
    Rochester Distilling Company, App’lt, v. Mary M. Devendorf, Resp’t.
   No opinion. Motion for reargument or for leave to appeal to the court of appeals denied.


text:
    Andrew K. Smith, App’lt, v. James E. Taylor et al., Resp’ts.
   No opinion. Judgment appealed from affirmed, with costs.


text:
    Thomas Manufacturing Company, App’lt, v. Benjamin Palmer, Resp’t.
   No opinion. Motion to dismiss the appeal, upon the ground that the notice of appeal was not served within the time limited by. the Code, granted, with $10 costs. x


text:
    Charles N. Tompkins et al., App’lts, v. Charles Hunter et al., Resp’ts.
   . No opinion. Judgment appealed from affirmed, with costs, on the opinion of Bradley, J., at special term.


text:
    John D. Ward, Resp't, v. Charles H. Myers, App'lt.
   Ho opinion. Motion to strike case from c .lendar, and for affirmance on ground of nonservice of printed papers, granted on default.


text:
    Martha M. Wickham, Resp’t, v. Sanford Harter et al., App’lts.
   Ho opinion. Judgment of the county court, Niagara county, appealed from, affirmed, with costs.


text:
    Frand D. Wright, Resp’t, v. George Mastin et al., App’lts.
   Ho opinion. Judgment appealed from affirmed, with costs.


text:
    Filed March 27, 1894.
    Persons S. Barnard, App'lt, v. Mary A. Brown et al., Recp’ts.
   Ho opinion. Judgment appealed from affirmed, with costs.


text:
    Daniel Bartlett, Resp't, v. Thomas H. Dowd, App'lt.
   Ho opinion. Motion to strike case from the calendar. Granted.


text:
    Frederick Beuerlein, Jr., Resp’t, v. Cornelius O’Leary, App’lt.
   No opinion. Judgment appealed from affirmed, with costs.


text:
    Robert Y. Bowden, Resp’t, v. Lewis Galen as President, etc., et al., App’lts,
   Ho opinion. Interlocutory judgment appealed from affirmed, with costs, ■with leave to amend answer within 20 days, upon the payment of the costa of this appeal and of the demurrer.


text:
    Ruth A. Brink v. Hiram Armstrong.
   Ho opinion. Motion to strike case from the calendar and for affirmance granted on default.


text:
    Otis N. Carr, Resp’t, v. Charles D. Carr, App’lt.
   Ho opinion. Motion to dismiss appeal on the ground of the nonseiviee of papers granted, without costs to either party.


text:
    E. A. Childs, as Receiver, etc., Resp’t, v. Kirke B. Crane et al., App’lts.
   Ho opinion. Order appealed from affirmed, with ,010 costs and disbursements.


text:
    City Dime Savings & Loan Ass’n, Resp’t, v. William A. Lobdell et al., App’lts (two cases).
   Ho opinion. Order so modified as to vacate the judgment for deficiency, and direct a resale of the premises upon the condition that the defendants LohdeR and Mings, within 10 (lays after the service of this order, with notice of entry thereof upon their attorney, file security with the clerk of Erie county for th<s payment of thu costs ami disbursements in the action, and the fees and disbursements of the referee who made tile sale of April 30,1893, to an amount not exceeding the deficiency, if there be one upon the resale, and that such security be a bond or undertaking executed by the defendants, and by a surety to be approved by a judge of this court, and as so modified affirmed, without costs of this appeal to either party.


text:
    City Dime Savings & Loan Ass’n, Resp’t, v. William A. Lobdell et al., App’lts (two cases).
   Ho opinion. Appeal dismissed, unless printed papers are served on or before the second Tuesday of the term.


text:
    Charles Curran, Resp’t, v. Lewis Galen as President, etc., et al., App’lts.
   Ho opinion. Interlocutory judgment appealed from affirmed, with costs, with leave to amend answer within twenty days, upon payment of the costs of this appeal and of the demurrer, on the opinion of Adams, J., at the special term.


text:
    First National Bank of Bath, Resp’t, v. Sidney B. Roby, App’lt.
   Ho opinion. Order appealed from affirmed, with 010 costs and disbursements.


text:
    Thomas O. French, Resp’t, v. Western New York & Pennsylvania Railroad Company, App’lt.
   Ho opinion. Motion for leave to appeal to the court of appeals denied.


text:
    Mary K. Gibbs, Resp’t, v. George A. Carnahan, as Executor, etc., App’lt
   No opinion. Judgment and order appealed from affirmed. For decision at special term. ,


text:
    Sylphina Lilli, App’lt, v. John Kepple, Resp’t.
   No opinion. Judgment appealed from affirmed.


text:
    Frank H. Lovell, Resp’t, v. George W. Jacobs, App’lt.
   No opinion. Judgment appealed from affirmed, with costs.


text:
    Thomas P. McCormick, Resp’t, v. John McCormick, Jr., App’lt.
   No opinion. Order denying defendant’s motion for. new trial, appealed from, affirmed, with costs, and judgment ordered for the plaintiff on the verdict.


text:
    Bridget McCruden, Resp’t, v. Rochester Railway Company, App’lt.
   No opinion. Judgment and order appealed from affirmed, on opinion of Rumsey, J., at the circuit.


text:
    George G. Manning et al., Resp’ts, v. Lewis P. Beck et al., App’lts.
   No opinion. Judgment appealed from affirmed, with costs.


text:
    Annie Mitchell, Resp’t, v. Rochester Railway Company, App’lt.
   No opinion. Order granting new trial appealed from affirmed, with costs on opinion of Rumsey, J., at circuit.


text:
    Asa W. Russell, as Receiver, etc., Resp’t, v. George H. Miller, Impleaded, etc., App’lt.
   No opinion. Motion to strike case from the calendar and for affirmance granted, on .default, with costs, and with $10 costs of this motion.


text:
    Floyd C. Shepard et al., Resp’ts, v. Watson C. Squire et al., App’lts.
   No opinion. Order denying motion to change place of trial appealed from reversed, with disbursements to the appellants.


text:
    John J. Smith, Resp’t, v. Nathan J. Milliken et al., App’lts.
   No opinion. Interlocutory judgment appealed from affirmed with costs, with leave to the defendants to withdraw demurrer, and answer over within 20 days, on payment of the costs of this appeal and of the demurrer. ■


text:
    John E. Thomas, Resp’t, v. George A. Davis, App’lt.
   No opinion. Judgment and order appealed from affirmed.


text:
    Owen Torrey, Resp’t, v. David Torrey, App’lt.
   No opinion. Motion to strike ease from the calendar, and for affirmance granted on default, with costs.


text:
    New York Superior Court—General Term.
    Filed February, 1894.
    Minna Knoch, App’lt, v. Marie E. Von Bernuth, Resp't.
   Per Curiam.

The judgment is affirmed, with costs, on the opinion of the learned c rart below.


text:
    Filed May 7, 1894.
    Henry R. Holly et al., Resp’ts, v. Manhattan Railway Company, App’lt.
   Per Curiam.

The judgment should be affirmed, with costs.


text:
    Henry Schulz, Resp’t, v. Charles Rohe et al., App’lts.
   Per Curiam.

Under the decision of the general term of this court upon the former appeal, 4 Misc. Rep. 384; 53 St. Rep. 576. and the evidence given by both parties upon the ¡rial now under review, the case was one for the jury. It was properly submitted, and, upon the whole case, it cannot be held that the verdict is contrary to evidence, or to the weight of the evidence. No reason appears sufficient to call for a disturbance of the verdict. There were no errors in the admission or exclusion of evidence. The judgment and order should be affirmed, with costs.


author: Freedman, J.

text:
    Eliza W. White et al., Resp’ts, v. Anna Byron Benjamin et al., App’lts.
   Freedman, J.

This is an appeal from a judgment setting aside, as against the plaintiffs, a general assignment executed by the defendant Edward M. Benjamin for the benefit of creditors, and also setting aside, as against the plaintiffs, a judgment entered against him by his wife, and a certain conveyance made by him to his wife.

The case turns wholly upon a peculiar and highly complicated state of facts. They have been so fully analyzed and discussed in the extensive opinion filed by the learned trial judge that no useful purpose would be served by a repetition of them here. After a full consideration of the whole case, I am satisfied that no error was committed in the reception of evidence which calls for reversal; that the findings of fact, in view of the probabilities and inferences fairly and properly deducible from certain clearly established facts, are supported by sufficient evidence; and that tin findings of fact sustain the conclusions of law based thereon and the judgment entered Even if, in a certain aspect of the case, Mr. Benjamin was indebted to Ms wife at the time of the assignment, it was only for a relatively small amount, and this amount was fraudulently increased to a very large sum in order to consummate the fraud which was contemplated against the plaintiffs. The fraud committed was not merely a technical one, but fraud in fact. There was not only an intent to hinder and to delay, but also an intent to defraud the plaintiffs. The fraud had been planned and partially organized for years, and, upon the proofs, Mrs. Benjamin is chargeable with participation in its final consummation, because she permitted her husband, as her attorney in fact, to act for her and himself as he did. Substantial justice has been done between the parties, and the judgment should be affirmed, with costs.


text:
    New York Common Pleas-—General Term.
    Filed April 2, 1894.
    Sarah J. Burby, Resp’t, v. William J. Roome, App’lt.
   Per Curiam.

The motion fails to comply with Rule 16 of this court Denied; with $10 costs.


text:
    Filed May 7, 1894.
    George G. Fussell, Resp’t, v. Richard J. Cullen, App’lt.
   No opinion. Ordered that the appeal be discontinued, without costs.


text:
    Henry C. Jacobs v. William O’Gorman et al.

   No opinion. Motion denied, without costs.


text:
    Julian Rosenthal, App’lt, v. Peter Hunt, Resp’t.
   No opinion, Ordered that the judgment be reversed, and new trial ordered, with costs to appellant, to abide event.


text:
    Union National Gas-Saving Company, App’lt, v. Albert C. Westheimer et al., Resp’ts.
   No opinion. Ordered that the judgment be affirmed, without costs.


text:
    Filed May 9, 1894.
    Margaret Hayes, as Administratrix, etc., App’lt, v. Consolidated Gaslight Company of New York, Resp’t.
   No opinion. Order affirmed, without costs.


text:
    New York Mut. Gaslight Company, Resp’t, v. Albert Gray, App’lt.
   No opinion. Order affirmed, with costs.


text:
    Maria L. Winterson, App’lt, v. Hector M. Hitchings, Resp’t.
   No opinion. Judgment affirmed, with costs.


text:
    Filed May 10, 1894.
    Lulah Nickerson, App’lt, v. Norman H. Niver, Resp't.
   No opinion. Order affirmed, with costs.


text:
    The People ex rel. Harry W. Roseborn, App’lt, v. John J. Jeroloman, Justice, etc., et al., Resp’ts.
   No opinion. Order affirmed, with costs.


text:
    Filed May 11, 1894.
    Claude Gindre et al., Resp’ts, v. Edward M. Bengamin, App’lt.
   No opinion. Judgment affirmed, with costs.


text:
    Charles William Haddock Hatfield, App’lt, v. Alfred B. Cole, Resp’t.
   No opinion. Ordered that the order appealed from he reversed, with costs.


text:
    Henry A. Lambert, App’lt, v. George W. Carr et al., Resp’ts.
   ¡No opinion. Ordered that the order be reversed, with costs.


text:
    Filed May 16, 1894.
    Mary A. McGuire, Pl’ff, v. Agnesa Anleta et al., Def’ts,
   No opinion. Taxation affirmed. The cases referred to are not applicable to an action for partition.


text:
    Filed May 17, 1894.
    William B. Baldwin, Resp’t, v. George J. Cohen et al., App’lts.
   No opinion. Ordered that the appeal here bo dismissed, and the order confirming the report of the referee be affirmed, with costs.


text:
    John Claflin, App’lt, v. New York Standard Watch Company, Resp’t.
   No opinion. Motion for leave to appeal to the court of appeals denied, with $10 costs.


text:
    John Doherty, Resp’t, v. Samuel Lord, Jr., et al., App’lts.
   No opinion. Motion for reargument denied!" with $10 costs.


text:
    Grace D. Ives, Resp’t, v. Peter Quinn, App’lt.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    John Jackson, Resp’t, v. Frederick Rode, App’lt.
   No opinion. Motion for reargumeht denied, with $10 costs.


text:
    Joseph W. Johnson, Resp’t, v. James Girdwood, App’lt.
   No opinion. Motion for reargument granted.


text:
    August Marschall et al., App’lts, v. Eisen Vineyard Company, Resp’t.
   No opinion. Motion for leave to appeal to the court of appeals denied, with $10 costs.


text:
    Samuel B. Parmlee, Resp’t, v. Associated Physicians & Surgeons, App’lt.
   No opinion. Motion for reargument granted, provided the case is argued at the additional general term in June.


text:
    Thomas Pearsall, Resp’t, v. John Mason, App’lt.
   No opinion. Appeal dismissed, with costs.


text:
    The People, Resp’t, v. Carlton H. Betts et al., App’lts.
   No opinion. Motion granted.


text:
    The People, Resp’t, v. John Deghler et al., App’lts.
   No opinion. Motion denied.


text:
    The People, Resp’t, v. Herman Lapidus et al., App’lts.
   No opinion. Motion to remit forfeiture denied.


text:
    The People, Resp’t, v. George Lucus et al., App’lts.
   No opinion. Motion granted.


text:
    Ludwig Ruser, Resp’t, v. Union Distilling Company, App’lt.
   No opinion. Motion for leave to appeal to the court of appeals denied, with $10 costs.


text:
    Joseph H. Tooker et al., Resp’ts, v. Marion Booth, App’lt.
   No opinion. Appeal dismissed, with costs.


text:
    Lyman C. Vrooman, App’lt, v. Houston, West Street & Pavonia Ferry Railroad Company, Resp’t.
   No opinion. Motion for leave to appeal to the court of appeals denied, with $10 costs.


text:
    Alice Watson, Resp’t, v. John H. Russell, App’lt.
   Ho opinion. Motion for leave to appeal to the court of appeals granted.


author: McCarthy, J.

text:
    New York City Court—General Term.
    Filed May 18, 1894.
    Charles H. Mead et al., Resp'ts, v. Edgar Hartwell et al., App’lts.
   McCarthy, J.

There is nothing in the objection of the appellants ; it is too finely drawn. The summons complies with the order and its intent. The order is therefore affirmed, with costs. All concur.


author: Dykman, J.

text:
    Isaac Knee, Jr., v. Ellen Kuykendall et al.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Partition—Judicial sale—Title—When court of equity will not ENFORCE COMPLETION OF PURCHASE.
    A judgment having been rendered in apartition suit directing the sale of the premises, and a party having bid for them at the sale, but refusing upon tender of a deed to complete his purchase, on the ground that the property was incumbered by a condition. Upon appeal from an order that he complete his purchase: Held, that a purchaser of real property at a judicial sale must be furnished with a complete and undoubted title, and if there be a reasonable doubt of the marketableness of the title tendered, or a reasonable chance that a third person may question the same, a court of equity will not compel an acceptance thereof.
    Appeal from an order made by the special term requiring Edwin R. Sheridan, the appellant to complete purchase of lands sold under a judgment in a partition suit.
    The subject of the action formerly formed part of a farm owned by Cyrus P. Smith, and sold by him in parcels to purchasers.
    One of these parcels, including the lot in question, he sold in 1851, to Henry Barclay and John Moore, conveying the same to them by deed, the habendum clause of which provided, that certain classes of buildings, should not be erected thereon and limited the buildings which might be erected to those above a specified cost. By his will he gave his executors and trustees power to sell his real property, and execute deeds therefor.
    Subsequently the executors made a deed dated May 4, 1886, to the parties then owning the premises which purported to release them from the condition. In an action for partition of the premises, a decree was made that they be sold, and at the sale a purchaser having bid thereon subsequently refused to complete the purchase because the premises were.^incumbered by the condition in the deed from Smith to Barclay and Moore.

      H. C. M. Ingraham, for app’lt; Michael Trust, for resp’t.
   Dykman, J.

A purchaser of real property at a judicial sale must be furnished with a complete and undoubted title, and if there be reasonable doubt of the marketableness of the title tendered, or a reasonable chance that a third person may question the same, a court of equity will not compel an acceptance thereof. Post v. Bernheimer, 31 Hun, 253; Shriver v. Shriver, 86 N. Y., 575; Fleming v. Burnham, 100 id., 1.

In the face of these authorities the power of this court should not be exerted to compel the completion of the purchase under the judgment in this action, for the reason that the purchaser would not receive a marketable title.

The property is subject to a condition subsequent which is quite restrictive, and might be very objectionable to many persons desiring to purchase the same for business purposes, unless the release of the same by the executors of the grantor in the deed which contains it, is sufficient for its extinguishment. That is a question which we cannot decide here by any judgment or order that would conclude the heirs of the original grantor, and the purchaser would be exposed to danger and risk of a litigation from that quarter.

The order appealed from should be reversed and an order entered releasing the purchaser and returning the money he has paid,, with his disbursements on this appeal, but no costs.

Barnard P. J., concurs; Pratt, J., not sitting.


text:
    Cornelius Ivory, Resp’t, v. The Town of Deerpark, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Negligence — Commissioners of highways — Omission of official duty.
    In an action against a town for damages for injuries sustained by reason of negligence in not properly guarding a dangerous road: Rad, that in the-allegation in the complaint charging the commissioners of highways of the town with negligence, the term signified an omission of official duty.
    2. Judgment entered on verdict—When affirmed.
    The defendants having denied the possession of funds sufficient for the erection of the necessary protection fences, and it having been shown that there were funds sufficient for the purpose under their control, the location of the highway, the negligence of the commissioners and the contributory negligence of the plaintiff having all been put in issue and submitted to the jury, who rendered their verdict in plaintiff’s favor: Held, no error appearing of record; that the judgment entered on the verdict and order denying new trial should be affirmed.
    . Appeal from judgment entered on verdict rendered in favor of plaintiff at the Orange county circuit and, from an order denying a new trial on the judge’s minutes.

      Wm. F. O'Neil, T. J. & J. W. Lyon, for resp’t; C. E. Cuddebaek, Lewis E. Carr, for app’lt.
   Dykman, J.

In its application to this action the term negligence signifies an omission of official duty, and the allegation of the plaintiff is that the commissioners of the town of Deerpark have been guilty of negligence in omiting to erect a barrier on the side of the road at the place where he received his injuries, and leaving the same in an unsafe and dangerous condition.

He was driving a team of horses over one of the public highways of the town in a dark, rainy night on a descending grade and drove over an embankment. There was neither fence nor fixture of any kind at that place, and there was a curve in the road.

The cause was tried at the circuit and submitted to the jury upon principles of law which are well settled and recognized, and the verdict was awarded to the plaintiff.

The defendants denied the possession of funds sufficient for the erection of protection fences, but the proof showed money under their control with which they might have constructed the safeguards necessary for the protection of travelers.

The location of the highway was placed in dispute, and the negligence of the commissioners of highways was denied, and the contributory negligence of the plaintiff was insisted upon, and all these questions were the subject of testimony, and they were all submitted to the jury under proper instructions and found and decided in favor of the plaintiff. The record discloses no error, and the judgment and order denying a motion for a new trial should be affirmed with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    People ex rel. Mary C. Gihon v. The Board of Assessors of the Town of Flushing.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Assessment—Erroneous assessment Correction of.
    Power is given to the supervisors by Laws of 1871, chap. 629, to correct an erroneous assessment upon the recommendation of the county court.
    2. Same—Formal error may be corrected.

      Held, that under this law forms must he followed, hut a formal error may be corrected.

      Arthur Van De Water, for resp’t; Benjamin W. Downing, for app’lts.
   Barnard, P. J.

As the assessment was entirely stricken from the roll as illegal, it is not necessary to examine the testimony as to the inequality of the assessment as compared with other property. The assessment was originally put down on the list as against the “estate of Mary W. Gryder.” The true owners were Duncan Cryder, Esther W. Chauncey and Mary E. Gihon. The tax was one of lS8i, and when the writ of certiorari was issued in the fall of that year the assessment was to the estate of Ma,ry W. Cryder. Subsequently it was charged to one agent, the true owner by order of some court, it does not appear either by what court or when this order was made. The chairman of the board testified that “the court directed the alteration, and we made it.” The parties left the matter in this state in respect to the order. Neither party asks for the court which made the order, or upon what it was based. Such an order should be deemed established upon this state of the proof. Chapter 695, Laws of 1871, seem to give powers to the supervisors upon the recommendation of the county court to correct an erroneous assessment. There is no justice in the case of the relator. Her property was the property assessed, and it should not escape the duty of furnishing a fair proportion of the burden of taxation. Forms must be followed, but a formal error under this law can be corrected. The case of Clark v. Norton (49 N. Y., 243), was decided upon the law as it was before the law of 1871 was passed.

Assuming that the erroneous assessment can be, and was amended, then the case is not one for relief by this writ.

By the case of Trowbridge v. Horan (78 N. Y., 439), it was held that the assessment" to the estate of A. B. is not an assessment which could be enforced against the land, or in any way.

The writ by chapter 269, Laws of 1880, is based upon an assessment wfifich aggrieves the relator, and that he is, or will be, injured by the alleged illegal assessment.

It cannot be claimed that the relator is injured by an illegal or void assessment, neither is it clear that proceedifigs under this writ would reach such errors as the supervisors could amend under the statute of 1871, above cited.

The order should, therefore, be reversed, with fifty dollars costs of this appeal.

Dykman and Pratt, JJ., concur.


text:
    Adolph Gubner, as Adm’r, etc., Resp’t, v. James Vick et al., as Ex’rs, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Warranty—Representations in catalogue.
    The catalogue of defendant’s testator described particularly a kind of cabbage, and also contained an assurance that purchasers would get good seed. The agent of plaintiff’s intestate bought a quantity of the seed from defendant’s intestate, not at the time disclosing his agency. Plaintiff’s intestate, who was a farmer, used the seed with proper care and cultivation, so as to raise a crop; the crop, however, failed and the seed proved to be of an improper quality. Held, that the law assumes a contract from the orders for a particular kind and quality of seed that it is such as ordered, and that it will produce the vegetable named.

      2. Same—Breach—Measure op damages.

      Held, that the measure of damages was the difference between the value of the crop raised from the seed furnished and that of a crop such as would ordinarily have been raised from the seed ordered.
    3. Same—Purchase by agent—Principal undisclosed—Principal may sue.

      Held, that it was immaterial whether or not the agent disclosed his agency at the time of the purchase; the real party may sue for a contract made by an agent who fails to disclose his principal.

      Edward Harris, for app’lt; Carpenter & Roderick, for resp’ts.
   Barnard, P. J.

Under the case of White v. Miller, (71 N. Y., 118), the sale of the seed was with warranty.

The seed was ordered by Seiger, who did not disclose his agency, but who was in fact the agent of the plaintiff’s decedent. The catalogue of the defendants’ testator described particularly the kind of cabbage called “Excelsior Large Flat Dutch,” the seed of which was ordered. The catalogue also assures purchasers that they will get good seed. The plaintiff’s intestate was a farmer in Kings county, K. Y., and used the seed with proper care and cultivation so as to produce this crop of cabbage. The crop failed. The seed turned out to be mixed. A large proportion of it failed to head, and a large proportion failed to head properly. The quality ordered always heads with good cultivation. There was very little of the cabbage ordered in the yield. The loss was almost a loss of the entire crop.

It is true that in the case of Passinger v. Thornburn, (34. N. Y., 634), there was an express warranty that the seed would produce “Bristol Cabbages,” but there is no difference between a case of an express warranty and an implied one. The law merely assumes a contract from the orders for a particular kind and quality of seed, that it is such as ordered, and that it will produce the vegetable named.

Under these cases the measure of damages is the difference in value between the crop raised from the defective seed and a crop such as would have ordinarily been raised from the kind sold.

It was immaterial whether or not Sieger disclosed his agency. The real party may sue fora contract made by an agent who fails to disclose his principal. The refusals to find the plaintiff’s requests, from 1 to 8, were proper, as wholly immaterial. So it was not error to reject proof tending to show that the deceased plaintiff’s intestate was not in the Vick books as a purchaser. It was apparently erroneous to reject the proof of the value of the cabbage in August, 1881, the year in question. The case shows that the question was put to the witness Allen. It was put on the redirect examination by defendant, and the question had been put the same witness on the direct examination, who answered that he knew nothing of the market only by reputation. He had neither bought nor sold in the market.

The judgment should therefore be affirmed with costs:

Pratt, J., concurs.


author: Pratt, J.

text:
    Maria L. Hood, v. Frederick Hood, et al.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Waiver of appeal—By receiving benefits of order appealed from.
    Defendant demurred to the complaint on the ground, among others, that plaintiff had not legal capacity to sue in that the action must be commenced by the executrix of H., deceased. The demurrer was sustained, and plaintiff permitted to amend the summons, and also to amend the complaint, upon payment of costs. The plaintiff served upon the defendant the amended complaint, at the same time giving him a check for the costs. . Both were retained, and the defendant’s attorney thereafter served his answer to the amended complaint: Held, that he thereby waived his appeal from the part of the order amending the summons and complaint.
   Pratt, J.

This is a motion to dismiss the appeal in the above entitled case.

The defendant filed a demurrer to the complaint on the ground, among others, that the plaintiff had not legal capacity to sue, in that the action must be commenced by the executrix of the estate of Andrew Hood, deceased, which was sustained by the court, and the plaintiff permitted to amend the summons by adding after the plaintiff’s name the words, ‘ ‘As executrix of the last will and testament of Andrew Hood, deceased; and on her own behalf, and on behalf of all persons interested in the said estate;” and also to amend the complaint upon paying twenty dollars costs.

The defendant appeals from so much of the order as allowed the amendment, and noticed his appeal for argument at this general term.

The plaintiff prepared his amended complaint and duly served it upon the defendant, at the same time giving him a check for the twenty dollars. The amended complaint and check were accepted and retained, and the defendant’s attorney thereafter joined issue upon the amended complaint by serving his answer.

Under this state of facts we think the appeal ought to be dismissed. By accepting the amended complaint and check, he waived his right to prosecute his appeal.

He had a right to appeal from so much of the order as allowed the amendment, but he had no right to accept the benefit which was made a condition of granting that part of the order.

The plaintiff had a right either to make the amendment or retain his money; the latter the defendant has deprived him of doing, and this appeal seeks to deprive him of the former. Such practice cannot be tolerated. This decision renders it unnecessary to pass upon the appeal papers.

Motion to dismiss appeal granted, with ten dollars costs and disbursements.


text:
    Samuel D. Hoyt, Resp’t, v. New York, Lake Erie and Western R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Railroad crossing—Obligation of company to keep crossing in REPAIR.
    The defendant operates a railroad which crosses the street in the village of M. Held, that both by Laws of 1850, chapter 140, and by common law, the defendant was bound to keep its road at the crossing in safe condition, so that a traveler upon the highway exercising ordinary care can pass over the same in safety.
    3. Liability to repair—Cannot be shifted.

      7:1 Id, that the liability of the defendant was not changed by the assumption of the village officials to keep the crossing in repair. Where the law imposes a duty on a person or a corporation, it cannot be evaded by casting it upon another.
    3. Contributory negligence—Error in judgment not. A mere error in judgment is not of itself contributory negligence.

      Lewis E. Carr, for app’lt; Wm. F. O’Neill, for resp’t.
   Barnard, P. J.

The defendant operates a railroad which crosses North street in the village of Middletown in Orange county. Both by the statute chap. 140 Laws of 1850, and by the principle of the common law, the defendant was bound to keep its road at the crossing, in safe condition so that a traveler upon the highway exercising ordinary care can pass over the same in safety. Gale v. N. Y. C. R. R., 76 N. Y., 594.

It was proven upon the trial that the accident was caused by the wearing away of the plank which was next the rail so that a hole some seven inches deep and over a foot across was occasioned by the public travel on the highway across it. At least evidence was given tending to show this state of facts and the finding of the jury is in favor of its truth. Proof was also given tending to show an injury to the plaintiff in consequence sufficient to support the verdict.

The injuries were severe, painful and permanent. The judgment, is therefore correct, if the case was tried without errors in law. The liability of the defendant was not changed by the assumption of the village officials to keep the crossing in repair.

When a duty is imposed upon a person or a corporation, it cannot be evaded by casting it upon another. The objection to the exclusion of the evidence tending to show that the village had kept the crossing in repair, was not well taken.

So far as the evidence was pertinent to the question, or whether or not there was an ill-kept crossing, it was admitted. The case of Sewell v. City of Cohoes (75 N. Y., 45), is only an authority to this extent, that a city which assumes to keep in repair a piece of land as a public street, cannot in case of injury to the traveler by neglect, deny that it is a legal highway. The case of Babcock v. N. Y. C. and H. R. R. R. Co. (20 Week. Dig., 477), goes no further than that when it is a question whether the duty of restoring a crossing by a railroad extended to the maintenance of a sidewalk, the conduct of the parties was admissible. In the present case there is no question as to the duty of defendant to restore the highway and keep it safe where it crosses the railroad.

The evidence offered as to another accident to the plaintiff’s wagon by the fall of a bolster, was properly rejected. The plaintiff claims an injury from a certain defect in the street. The defendant claimed among other things that the load of straw was too narrow and too high. No defect was proven in the wagon and if the bolster did fall on another occasion that fact had no relevancy on this trial.

The assumption is that the bolster fell ‘ ‘ in an effort to turn.” There was no effort to turn on the occasion in question. The non-suit was properly denied. The liability to restore carried with it all things necessary to make a safe passage over the rails. While the decisions hold that the obligation exists to keep the space between the tracks safe, it must be that a plank or some other means of rising to the level of the iron rail, from the outside, is included in the duty of restoration. The street is neither safe nor passable without such appliances or means of approach to the track.

The charge was right in réspect to errors in judgment. A mere error in-judgment is not of itself contributory negligence. The rule was correctly stated. If the plaintiff driver was ordinarily prudent and careful under all the circumstances, it was all which the law required of him.

There is no other material question raised by the charge, or by the requests to charge.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Matter of the application of Henry M. Eliott for a writ of mandamus to William H. Thomas, Jr., et al.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Constitutional law—Justice of the peace—Appointment to fill, vacancy—Laws 1875, chap. 166, constitutional.
    That part of chapter 166, Laws 1875, which provides that a person appointed to fill the vacancy of a justice of the peace whose term of office would have expired on the 31st day of the December next succeeding such appointment, shall hold office until said 31st day of December, is constitutional.
    Appeal from an order of the supreme court special term of Kings county denying a writ of mandamus.
    Voorhees Overbaugh was a justice of the peace of the town of Flatlands until June 23d, 1885, when he resigned his said office. His term would not have expired until December 31, 1886. The town authorities appointed Albert H. Van Dyke to fill the vacancy.
    At the following annual town meeting, held April 6, 1886, it was necessary, according to the claim of the relator, to elect to fill both the short term caused by the resignation of Overbaugh, and for a full term to commence on January 1, 1887.
    At said town meeting an election was held for justice of the peace; there were cast 121 votes for John M. Wilson and 97 for Henry M. Eliott, the relator, and they having received the highest number of votes cast were each elected a justice of the peace.
    The respondents, the election officers of the town, refused to certify the relator’s election, and contended that but one justice was elected, and certified to Wilson’s election.
    The relator insists that he also was elected, that the constitution required the mentioned vacancy to be filled by election, and that the ballots cast for him having designated him for the full term he is entitled thereto, no such designation being upon Wilson’s ballots. It was then the duty of the respondents, as the election officers, to determine that the relator had been elected for the full term as such justice; this they refused to do. At a special term the relator’s application to compel the respondents to certify to his election was denied, and he appealed.

      John H. Kemble, for relator, app’lt; William J. Gaynor, for res’pt.
   Pratt, J.

The term of Overbaugh, who resigned, was to expire December 31st, 1886.

By the act of 1875, the term of Van Dyke, appointed to the vacancy February 16th, 1886, did not expire until December 31st, 1886.

There was therefore no vacancy to he filled at the election in April, 1886. The office to be voted for, was for the long term beginning January 1st, 1887. To that office Wilson was elected and not the relator.

The relator is in error in claiming that by force of the constitution an election must in all cases be had to fill a vacancy occurring before the expiration of a full term. To determine how that shall be is within the power of the legislature. The constitution merely provides that when the legislature directs an election to fill a vacancy occurring before the expiration of a full term, the person elected shall hold for the residue of the unexpired term.

That provision is not infringed.

In the absence of any constitutional prohibition the legislature exercises the sovereign will of the people.

There is no inhibition upon the legislature declaring in a certain instance that there is no vacancy.

The act of 1875 did not fall within any constitutional provision, and was valid.

Order affirmed with costs.

Barnard and Dykman, JJ., concur.


text:
    Elizabeth Stilwell, individually and as Executrix of Lena Stilwell, deceased, Resp’t, v. August Zinsser, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Pleading—Cause of action for injury to reversion—When stated.
    The plaintiff alleged ownership of a farm in Kings county, and that defendant maliciously destroyed and injured and defaced the grass and sod of plaintiff and carried it a"way. The farm at the time of the acts complained of was in the possession of a tenant. Held, there "was a cause of action stated for injury to the reversion.
    3. Trial—Proof of cause of action for injury to land—Dismissal of complaint.
    On the trial the plaintiff proved her title and the wrongful cutting and carrying away the sod, the amount taken and its value. Held, that a cause of action had been made out for injury to the freehold, and that the motion for a dismissal of the complaint was properly denied.
    3. Same—Variance—Code Civ. Pro., § 1207.
    Plaintiff failed to prove that the acts were maliciously done. Held, there was no variance between the complaint and the proofs, and that the case did not fall within Code Civil Procedure, § 1207.
    Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the Kings county circuit and from an order denying a motion for a new trial made on the judge’s minutes.
    The plaintiff was the owner of a certain farm in the town of Gravesend, county of Kings, state of New York, which she leased to one John Steinninger from year to year, who Eved in the house upon the premises and cultivated the land. This tenant, Steinninger, sold to defendant, and received money in payment therefor, eighty-five loads of sod ab fifty cents a load, and directed defendant to come and get it on his premises, and he, the tenant, furnished him with the tools for cutting the same. For these acts of the defendant under the Ecense of Steinninger, the tenant of the plaintiff, the plaintiff brought suit against the defendant and declared in subdivision 2 of her complaint as follows:
    “ That at divers times between the first day of July, 1884, and the 20th day of August, 1884, the defendant maliciously and wantonly destroyed, injured and defaced the grass and sod, the property of the plaintiff, growing on the land of said plaintiff, to wit: on the highway immediately adjoining the above-described premises, by cutting and removing therefrom about one hundred loads of grass, sod and loam, of the value of $200; whereby the defendant, by force of the statute for the more effectual prevention of wanton and malicious mischief, became liable to the said plaintiff in the sum of $1,000.”

      Hubbard & Rushmore, for resp’t; M. L. Towns, for app’lt.
   Pratt, J.

The plaintiff alleged ownership of a farm in Kings county, and that defendant maliciously destroyed and injured and defaced the grass and sod of plaintiff and carried it away. It also alleged that under chapter 451, Laws of 1877, the defendant became liable, etc., and demanded damages in $1,000. The farm, at the time of the acts complained of, was in the possession of a tenant who had given defendant license to enter and carry away the sod.

Treating all the complaint stated about the statute as surplusage, there was a cause of action stated for injury to the reversion.

On the trial, the plaintiff proved her title and the wrongful cutting and carrying away the sod, the amount taken and its value. Defendant then moved for a dismissal of the complaint.

The court ruled that the case did not come within the statute, but that a cause of action had been made but for injury to the freehold.

In such ruling there was no error. The fact that the plaintiff supposed that the case was within the statute, and so alleged and prayed for relief accordingly, was wholly immaterial.

There was no variance between the complaint and the proof; she simply failed to prove that the acts were maliciously done, and therefore the case did not fall within the statute. Code Civ. Pro., § 1207; Murtha v. Curley, 90 N. Y., 372, 377.

The defendant could not have been surprised, for he was fairly apprised of _ everything the plaintiff could claim. Neither the complaint nor answer required any amendment.

We have examined all the exceptions and find no error sufficient to warrant the granting of a new trial.

Judgment affirmed, with costs.

Barnard and Dykman, JJ., concur.


text:
    Charles P. Berdell, App’lt, v. Eliza W. Parkhurst, Resp’t. Same, App’lt, v. James W. Hoyt, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886)

    Judgment—Court has jurisdiction to set aside satisfaction of.
    The court has jurisdiction to set aside a satisfaction and reinstate a judgment under an agreement by the parties to that effect.
    Appeal from an order of Kings county special term setting aside the satisfaction of judgments.

      Alexander Cameron, for app’lt; Fullerton & Rushmore, for resp’t.
   Pratt, J.

The only question raised upon this appeal is, whether the court had jurisdiction to set aside a satisfaction and reinstate a judgment under an agreement by the parties to that effect.

The case of Hatch et al. v. The Central National Bank (78 N. Y., 487) is a direct authority upon this question.' That case holds that it is within the discretion of the court, after satisfaction of a judgment, to vacate it in the furtherance of justice. It is one of the inherent powers of the court to control its own judgments in aid of justice.

That the court had jurisdiction cannot be questioned, and that the power was properly exercised in this instance is equally plain.

Order affirmed, with costs.

Barnard and Dykman, JJ., concur.


text:
    John B. Hopkins, App’lt, v. Franklin J. Lott, as Adm’r, etc., of Sarah E. Lott, deceased, Res’pt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Refe'rence of a disputed claim against the estate of a deceased person —Special proceeding—Right to costs and disbursements on—Code Civil Pro., § 3246.
    A claim against intestates estate was presented to the administrator, who rejected it and offered to refer, which was accordingly done. The referee found plaintiff entitled to six cents damages. Retd, that it was a special proceeding and that defendant was entitled to costs under Code Civil Procedure, § 3246.
    Appeal from an order of the Kings county special term confirming the report of a referee and awarding defendant extra allowance and costs and disbursements.
    _Henry A. Monfort, for app’lt; Henry H. Smith, for resp’t.
   Pratt, J.

This was a matter arising upon a claim by plaintiff against the estate of Sarah E. Lott, deceased, which was presented to, and rejected by the defendant, administrator, who at the same time offered to refer, and the claim was accordingly referred on consent of both parties, and with the approval of the surrogate.

The claim was for $1,000 damages for breach of a covenant of quiet enjoyment in a lease.

The referee reported that plaintiff was entitled to six cents damages. The referee’s fees were sixty dollars, which plaintiff refused to pay, and defendant took up the report and moved at special term for costs.

The court rendered judgment for the plaintiff for six cents damages, and in favor of the defendant for costs and disbursements.

It seems to be settled that this proceeding is not an action, but is a special proceeding. 88 N. Y., 556; 81 id., 305.

We think the order made below was right. The Revised Statutes, under which the reference was had, provide that the “court may adjudge costs as in actions against executors and administrators.” Then comes the provision of the Code of Civil Procedure, section 3426, as follows: “In an action brought by or against an executor or administrator in his executive capacity, costs must be awarded as in an action by or against a person prosecuting or defending in his own right.”

On the question of costs, the defendant here was the preventing party. In this special proceeding the costs are to be adjudged as in an action prosecuted or defended by a person in his own right.

The Code of Civil Procedure was intended to provide a complete system upon the subject of costs. See sections 3246, 3228, 3229, 3230 and 3256,. which seem to cover the case in hand.

The confusion seems to have arisen from the fact that the Code of Civil Procedure refers to actions when treating of costs, but when it is seen that this particular proceeding is assimilated to an action in regard to costs, there seems to be no difficulty in the question.

This view is in consonance with the general purpose of the legislature in allowing costs, which is to make the burthen of litigation fall upon the party who causelessly invokes it.

Order affirmed, without costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


author: Barnard, P. J. Pratt, J.

text:
    The General Synod of the Reformed Church in America, App’lt, v. Eliza L. Lincoln et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Mortgages—Foreclosure of—Power of court of equity to regulate PROCEEDINGS.
    The premises owned by the respondents were bought by them at a sale on the foreclosure of a mortgage, and were subject to a first mortgage, and also a second mortgage, covering them and other premises. Held, that the respondents having bought their property at a legal sale, a court of equity might make them parties to an action for the foreclosure of the first mortgage pending at the time of the purchase, and so control the proceedings under the several incumbrances as to produce a just result and protect the rights of all.

      W. S. Logan, for Edward H. Coffin and Howard S. Jones, resp’ts; C. D. Bust, for Ralph Gf. Packard, assignee of pl’ff, app’lt.
   Barnard, P. J.

The protection of the respondent under the facts of this case requires the order appealed from.

There are fourteen houses and lots, each subject to a separate mortgage. There is a second mortgage which covers all the houses and lots, of $14,000. The respondent obtained a title to one of the houses under a foreclosure subsequent to both these mortgages. She then stood with a title subject to the first separate mortgage, and to a just proportion of the $14,000 mortgage. The mortgage was given by one Parker to Packard, the appellant. After the respondents purchased they applied for an assignment of the first mortgage, and the holder, after taking time to deliberate, assighed the same to Packard. Packard presses the foreclosure of this mortgage. The fee of eleven of the houses is in Parker, the mortgagee of the $14,000 mortgage, and the facts show a strong probability that Packard and Parker are acting together. If the $14,000 mortgage is first foreclosed, the rights of all the owners can be protected and the just proportion of each established. A junior mortgagor should not use his right of redemption to effect a wrong.

If the first mortgage is foreclosed, the respondents will be placed in a dangerous position. The lot is liable for the separate mortgage and for a proper portion of the second mortgage over this lot and thirteen others, and there is no way in this action to determine it. The order permits the appellant to keep the first mortgage if Packard will sell under the second, otherwise the assignment of the first mortgage is ordered, but it is not to be foreclosed for six months, and then only on application to the court to be relieved from the condition. The order is just and hurts no one.

The lot continues subject to the first mortgage. It continues subject to the second mortgage. It cannot be used against the second mortgage. If the respondents should pay the amount of the first mortgage the advantage will accrue entirely to the holders of the second mortgage and make the lands of the respondents by so much pay an inequitable amount of the $14,000 mortgage.

The respondents bought their property at a legal sale, and a court of equity may make them parties to the foreclosure action pending at the time of the purchase. The right to so control the proceedings under the several incumbrances as to produce a just result and to protect the rights of all is settled. Twombly v. Cassidy, 82 N. Y., 155.

The order should, therefore, be affirmed, with costs and disbursements.

Pratt, J.

The order appealed from carefully guards the interests of all parties.

If the owners of the first mortgage proceed, as in good faith they should, to foreclose the second mortgage, they are permitted to retain all the securities they now hold.

No reason can be given for seeking to foreclose the first mortgage in advance of the second, that can receive the favor of the court.

And unless the relief sought by the motion is granted, the moving parties will be in great danger of not only paying the first mortgage, but being compelled to pay the $14,000 second mortgage, of which in equity they should only pay the one-fourteenth part.

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


author: Pratt, J. Dykman, J.

text:
    Frank W. Halstead et al., App’lts, v. Isaac W. Sherrill et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Gift—Causa mortis. ■
    Where a person at the point of death, as he was advised by his physician, told the defendant, to take certain bonds either to his office or to put them in his safe, and said that he had not much “money,” but what he had he gave to “ them,” and on further questioning told who it was that he referred to by “ them.” Held, that the testimony failed to support a gift causa mortis, that the language did not clearly describe the property referred to, nor the donees, nor did it clearly express his intention to make a gift.
    Appeal by the plaintiffs from a judgment against them in favor of the respondent, entered upon the dismissal of their complaint at Dutchess county circuit, in an action brought to establish an alleged gift by the late G-. German Sharpsteen, of “about $20,000 in securities, and comprising nearly all his estate.

      Henry M. Taylor, for app’lts; Abbett & Fuller, for resp’ts.
   Pratt, J.

The testimony offered by the plaintiffs, fails in many respects, to make a gift causa mortis.

The language used does not clearly describe the property referred to, nor the donees, nor does it clearly express an intention to make a gift.

The only property referred to with any distinctness was the “money,” and whether that meant money in hand, or his bank credit, or his property generally, we can only conjecture.

Neither were the donees referred,to with any precision.

In answer to a question whether “mother and the children” were meant, we are told the answer was “yes.” But what estate or share was to go to any one was left uncertain.

The direction to Sherrill to take the box to his office and take care of it, was not expressed to be, and cannot be construed as a delivery to.Sherrill as the agent of the donees.

If the dying man had an intention to make a donation causa mortis, he failed to so express himself as to enable the court to carry it into effect.

Giving to the evidence the utmost force that can be claimed, it fell far short from being sufficient to justify a verdict for plaintiffs.

Judgment affirmed with costs.

Cullen J., concurs.

Dykman, J.

(dissenting).—This action is brought to establish a benefaction from the intestate of the defendants, and to recover the property bestowed, and the proceeds of such portion thereof as have been disposed of by them.

It is the claim of the plaintiff's that the intestate of the defendants gave the property described in the complaint to them and their mother, who has assigned her claim to them, in the prospect and contemplation of" his death.

The cause was tried at the circuit, and the close of the plaintiffs’ testimony their complaint was dismissed on the ground that the transaction proven did not constitute a valid gift.

The decision of the trial court is to be examined and tested on the assumption that the testimony adduced is true, and we are required to determine whether in that view a valid donatio causa mortis has been established by the plaintiffs’ proof.

On the morning of the 18th day of March, 1884, Mr. Sharpsteen, the deceased intestate, was very sick and was advised by his physician that his recovery was doubtful. About ten o’clock in the forenoon of that day he caused the box containing his securities to be placed on his bed and opened and he then took from it an envelope containg two bonds belonging to Harry Thurston, together with ten other bonds for $1,000 each, and placed the ten bonds and the envelope together and put a strap around them, and directed Harry Thurston to take them down stairs and put them in the safe.

Then he said he desired Virginia Sherrill to have five Wilksbarre bonds in payment of a note which she held against him. These Wilksbarre bonds were not among those delivered to Harry Thurston. Then in the language of the witness: “he says T don’t want the folks to object. ’ I says, ‘ who do you mean by the folks? ’ ‘ Do you mean mother and the children?’ He says, ‘yes.’ I says, ‘they won’t object.’ He says, ‘I don’t want them to, I don’t want them to; I have not got very much money, I have not got much, but what I have I give them, and I want you to carry out my arrangements.’ ”

Q. Who was referred to in your intercourse with him by the term mother ?

1. Mrs. Halsted.

Q. She was your mother-in-law ?

A. Yes, sir.

Q. What did you do after that ?

A. Well, there was nothing of any importance or between us until just before I left the room. The doctor came at that time, or came to the door and roused up and said to me, “ Isaac I want you to take the box, lock it up, take it over to_ your office, and either he said to your office, or take it and put in your safe, I am not positive which, but I think put it in your safe, and take care of it, he either said one or the other, I think he said over in your safe and take care of it.

Q. What did you do ?

A. I took the box, locked it up, and took it over.

Mr. Sharpsteen died the next day.

Gifts causa mortis had a well recognized place in the Roman civil law, and under that system of jurisprudence very formal solemnities were prescribed to ensure their validity. Under the common law of England, however, no special ceremony is required, but the courts are cautious and require clear proof of the gift and of the delivery of the property to the donee or to some person for him, and then the donation becomes perfected by the death of the donor.

It is essential that the gift be made with a prospect of the donor’s death, and he must die of that ailment or peril, and there must be a delivery, and all these requisites must concur in every case to afford validity to the gift.

In this case the testimony discloses the clear and unequivocal intention of the deceased to bestow the property on the plaintiffs and their mother. His language was: “I have not got much, but what I have I give to them, and I want you to carry out my arrangements.” The donation was made in prospect of approaching dissolution, and the donor actually died the next day of the ailment that brought him in view of death. These two facts were not seriously controverted, and the donation became perfect, and the title vested on the death of the donor if there was a sufficient delivery to supply the requirements of the law.

It is not essential that such delivery should be to the donees personally. A valid gift is established if a delivery of the subject of the gift be made to the donees or to some person for them, so as to divert the possession and title of the donor himself.

If a delivery be made to a third person with intent to divert the title and possession of the donor, and to vest in the donees dominion and control over the property, it is sufficient to validate the gift. Bedel v. Carll, 33 N. Y., 581; Westerlo v. De Witt, 36 id., 345; Grymes v. Hone, 49 id., 17; Young v. Young, 80 id., 622; Jackson v. Twenty-third Street R. R. Co., 88 id., 520.

In this case the proof shows that the intestate declared the gift by saying, what I have I give them, and I want you to carry out my arrangement. Then as the doctor came to the door he roused up and said: “Isaac, I want you to take the box, lock it up, take it over to your office, or take it and put it in your safe and take care of it, and the box was locked and taken in obedience to that direction.

The intention of the donor is a necessary element in the case, and if by the request to carry out his arrangements, he referred to the gift then declared, and if he delivered the box and securities to facilitate the execution of his purpose and placed them in the possession and control of Isaac to be delivered to the donees in the event of his death, the essential requisites of a valid delivery were established.

The inference of such intention from the circumstances and facts disclosed by the testimony would create no strain, and if drawn by a jury would certainly not be destitute of support. Reduced to words, the transaction was this: The donor said in substance, “I give all my property to the plaintiffs, and I wish you to carry out my arrangements, and for that purpose I desire you to take the box with the securities, lock it up and take it over to your office and take care of it until my death, for if I recover, the gift I have made will be invalid and void.” Isaac was to take the box to carry out the arrangements,- otherwise it would have .been returned to the bank and deposited there as it had been. There was no other apparent reason for change of the custody or of the custodian of the box and securities.

This examination leads to the conclusion that the case should have been submitted to the jury under proper instructions for the solution of the questions of fact involved.

It appears that the securities claimed by the plaintiffs were inventoried by the personal representatives of the deceased as a portion of his estate, but that fact can be allowed no force against these plaintiffs.

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


author: Barnard, P. J. Dykman, J. Pratt, J.

text:
    James White, App’lt, v. James Boyce et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Injunction restraining proceedings under judgment—What necessary to obtain.
    The fraud which will induce a court of equity to restrain the enforcement of a judgment of a court must be actual and must reside not in the issues tried in the action, but in the practice imposed upon the court or the opposite party during the prosecution of the action or the acquisition of ' the judgment.
    Appeal by plaintiff from a judgment of Kings county special term dismissing the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

      Charles W. Brooke, for app’lt; Marsh, Wilson & Wallis, for resp’t.
   Barnard, P. J.

The complaint states no cause of action.. A judgment was recovered against the plaintiff in the supreme court of New York for conversion of personal property of the Maryland Union Coal Co. The case was tried upon its merits and a judgment rendered in favor of the company plaintiff. Much of the complaint in this case has no relevancy. The previous situation of the plaintiff herein, and why he became an employee of the corporation, and his agreement to buy a large portion of its stock at a fixed price, and the position of James Boice, Jr., in the corporation and his compensation, have no tendency to support a cause of action by the plaintiff under his complaint. Stripped of this verbiage, the allegation seems to be that the elder Boice owned the coal mines; that the plaintiff and Boice bought an old charter and. organized a corporation under it; that all the shares were allotted to Boice except five shares of one hundred dollars each which were issued to five more names; and that when the company was organized the shares were all re-transferred to Boice, so that he held stock for $5,000,000 and no other person had any. The plaintiff became president of this corporation and Boice secretary. It was this company which brought the action against its own president. A defense that there was no company, or a defense that it was a form only and that Boice was the real party, could have been pleaded in the supreme court. The plaintiff shows by the complaint to have known all the alleged misrepresentation as to the extent of acreage of Big View coal when the suit was commenced against him. An equitable action to set aside the supreme court judgment under these allegations is not authorized by law. Ross v. Wood, 70 N. Y., 10; Hunt v. Hunt, 72 id., 227; Verplank v. Van Buren, 76 id., 257.

The plaintiff knew everything he alleges before the action. He could have denied the existence of the corporation and could have set up any defense against Boice which he had under the allegation that there was only Boice and no company. If the plaintiff lost evidence by the fault of the Boices the supreme court could have aided him in having it restored to him.

The judgment should, therefore, be affirmed, with costs.

Dykman, J.

It is the primary object of this action to restrain the enforcement of a judgment obtained against the plaintiff by the Maryland Union Coal Company after a trial in an action at law, and its secondary purpose is to procure the possession of certain papers now under the control of the defendants, James Boyce and James Boyce, Jr.

The case was here before upon an appeal from an order continuing a preliminary injunction, and is not therefore unfamiliar to the court.

Without an examination of the merits at that time, we concluded to permit the continuation of the preliminary injunction until the trial of the action.

The judgment from which the present appeal is taken recites a trial of the action and the rendition of a decision dismissing the complaint for a failure to state facts sufficient to constitute a cause of action.

The story of the plaintiff is long, and the complaint which contains it covers forty pages of the printed book on this appeal, but in the long recital of facts not one of importance is presented that was unknown to the plaintiff at the time of the commencement of the action against him which ultimated in the judgment which he desired to stay.

All the facts now set up by the plaintiff were in his possession, and if now they constitute a cause of action in his favor, they were then available to him for a defense in that action.

If, for instance, Boyce was the coal company, and that company was Boyce, then all the claims of the plaintiff against Boyce were available by way of defense and counter-claim in that action.

The whole length of the complaint contains no allegation of fraud in the procurement of the judgment; there is not .even a statement that any judgment was obtained or entered. The complaint declares the commencement of the action and its reference to Henry J. Scudder, a referee, to hear and determine the same, but fails to state that any trial was had or any judgment made.

So there is an entire absence of any charge which would justify equitable interference to arrest the judgment or restrain its execution.

The fraud which will induce a court of equity to interfere with the solemn adjudication of a court must be actual and must reside, not in the issues tried in the action, but in the practice imposed upon the court or the opposite party during the prosecution of the action or the acquisition of the judgment. Ward v. Town of Southfield, 102 N. Y., 292; 1 N. Y. State R., 689.

The complaint in this action is entirely destitute of allegations to constitute a cause of action of equitable cognizance within the rules which must control this class of cases.

The possession of the papers sought by the plaintiff in this action must be procured by an action at law, and as this court does not retain the case to administer the relief sought primarily, it has no jurisdiction of the action for the claim and delivery of the papers. Our conclusion, therefore, is that the complaint fails to state a cause of action, and was properly dismissed by the trial court.

The judgment should be affirmed, with costs.

Pratt, J.

(dissenting).—This cause was fully considered upon a former hearing. We then determined that the complaint states a cause of action. We see no reason to recede from the views we then" expressed, and adopt them as a statement of the present views of the court.

It follows that the judgment appealed from should be reversed. We think the order of March 5, 1886, is in the proper form.

Judgment reversed, costs to abide event.

Judgment affirmed.


text:
    Emma L. Wendling, Resp’t, v. Hannah Bainbridge et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Master and servant—Extent op duty to warn servant op the DANGERS OF THE EMPLOYMENT.
    A servant put into a dangerous employment should he instructed and warned against latent dangers, but where the dangers are obvious or well known to the servant, the instruction and warning not being necessary, is not required.
    Appeal from judgment in favor of plaintiff and an order denying a new trial.

      Charles J. Patterson, for resp’t.
   Pratt, J.

In order to sustain the judgment the respondent invokes the rule that a servant put into a dangerous employment should be properly instructed and warned against latent dangers. This rule is subject to a limitation that where the dangers are obvious or are well known to the servant the instruction and warning-not being necessary, are not required.

In the present case it does not appear that the employment could fairly be considered dangerous. Some of the witnesses had been in the business for many years, none of them had ever heard of such an accident before.

Nor does it appear that instruction could make such danger as existed any more obvious than it must have been at the first glance to any person possessed of average intelligence.

It does affirmatively appear from the testimony introduced by plaintiff, that a very complete and startling notice was given of the possible consequence of being caught in the cog wheels, viz.: When the girl’s dress was entangled in the wheels and destroyed.

If such a warning did not induce care, it is not probable that any verbal notice would be of use. It must be borne in mind that instruction was given the witness, which, if followed, would have prevented the accident.

_ We do not think the alleged instruction to ink one particular press, where there were no dangerous wheels in view, in a different manner, takes away the effect of the instructions already given.

Manifestly after such a warning it cannot be claimed that the servant was ignorant of the dangers to which she was exposed.

It is proper to remark that no claim is made of any unusual or extraordinary peril connected with the machinery. The press was of ordinary make, such as has been used for many years, and no defect in its construction is suggested.

We fail to find any ground upon which the judgment can be sustained, and think the motion for nonsuit should have been granted.

It is proper to remark that the testimony of plaintiff’s principal witness was entirely without corroboration.

According to the testimony of numerous witnesses the injury was due entirely to her own negligence, against which she had been repeatedly warned. The preponderance of testimony in favor of defendants would have justified a dismissal of the complaint on that ground. .

Judgment reversed. New trial ordered, costs to abide event.

Barnard, P. J., and Dykman, J., concur.


author:
Barnard, P. J.
      Pratt, J.

text:
    Frank Bowman, Resp’t, v. Charles G. Johnston, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Mortgage—Foreclosüe—Deficiency.
    A lot of land was purchased for the benefit of an association but title thereto was taken in the name of one of its members, and a mortgage given by the party who appeared as grantee in the deed. The receipt for the money loaned which was executed at the same time with the mortgage, specified that the purchase was for the association. It appeared that as between the parties to the mortgage it was designed to cover the land as corporate property, in an action to foreclose the mortgage. Held, that the mortgagor should be exonerated from the payment of any deficiency arising on the sale.
    Appeal from a judgment of foreclosure and sale entered in this action after trial at Kings county special term.

      A. L. Martin, for app’lt; Smith & Woodward, for resp’t.
   Barnard, P. J.

As between the plaintiff and the appellant it appears that the lot was purchased for the Rescue temperance union and Christian association. The title was taken in the name of Johnston, the appellant, but it was expressly understood between Bowman and Johnston that the purchase was made for the association. The association was incorporated, and the reason why the title was not taken directly to the corporation does not appear, but probably it was so done to avoid the inconvenience of a mortgage to be given by a corporation. The receipt for the money loaned, executed at the same time as the mortgage and the only consideration for the bond and mortgage, specifies that the purchase was for the company, and this receipt was given by the mortgagor to the mortgagee and accepted by him. The real transaction is to be collected from all the papers, and as between the parties the mortgage was designed to cover the land as corporate property. The decree of the special term should therefor be modified so far as to exonerate the mortgager from the payment of any deficiency arising upon the sale. The appellant is entitled to costs, but not to the exclusion of the mortgage debt and costs of foreclosure, nor is he entitled to costs against the plaintiff personally. The decree should be further modified so that the appellant be entitled to costs out of the moneys upon the foreclosure sale after the plaintiffs debt is paid with the costs and the expense of the sale. As between the plaintiff and the corporate society the whole mortgage is right. It cost $228.69 to obtain a loan of $2,500 from the Equitable Life Ins. Co. by the plaintiff upon his own property. This could be allowed as between the parties upon the property which they bought for the corporation. The corporation can take the property subject to it or not, as it deems best. The question of the delivery of the deed to the plaintiff subject to the mortgage is not important under the conclusion at which we arrive.

The title was held in either event for the corporation.

Judgment modified according to the views expressed herein without costs to respondent upon this appeal.

Pratt, J.

The transactions disclosed upon the trial show such a lack of ordinary business judgment, as well as legal knowledge, that it is not easy to determine exactly what the parties intended at any stage of the affair.

Yet we may be reasonably sure that the plaintiff did not make his loan upon the individual liability of defendant, Johnson.

If plaintiff thought so far into the future as that he might ever need to collect his money, he probably supposed a sale of the lot would make him whole.

There is no evidence that he asked or expected Johnston to make himself individually liable for the money expended to buy the lot, and apparently the bond and mortgage were thus made for the reason that neither party knew any other way, or that it made any difference what the papers contained.

We think that if the bond and mortgage are so far sustained as to secure the value of the lot to the mortgagee, it is all the plaintiff, at any time, had a right to exact.

Moreover, we think it was agreed between the parties that upon conveyance of the legal title to Bowman, defendant Johnston should be discharged from any further demand in the premises.

To that end the deed was made and apparently accepted, until such time as Bowman began to be doubtful of getting back the money he had loaned. Then he sought to avoid the effect of his acceptance, but too late.

Some question is made as to whether the deed to Johnson may not be defective as seeking to create a trust not authorized by law. As a sale may be advisable to remove this question, the better disposition of this appeal will be to reverse so much of the judgment as holds Johnston liable for a deficiency, leaving the judgment in other respects in force.

No costs of appeal.


text:
    Patrick Myles, App’lt. v. The New York, New Haven and Hartford Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Master and servant—Duty to furnish safe appliances.
    The master is bound to furnish the servant safe, sound and suitable, tools, implements, appliances and machinery, and cannot escape this liability by delegating the duty to a subordinate.

      James A. O’Gorman, for app’lt; William E. Barnett, for resp’t.
   Barnard, P. J.

The point taken by the respondent that the proof fails to connect the ladder which broke and occasioned the injury with the defendant as master, ought not to be considered upon the appeal. After the close of the evidence the plaintiff asked to show this fact and the application was denied. If the fact was a material one the plaintiff ought to have been permitted to prove it.

The sole question then is whether the proof shows a case of negligence against the master on the assumption that the ladder was one formed for the purposes of the employment by the master. The plaintiff was working under the orders of one Maher. Both were carpenters in the employ of defendant, and both were of a common grade working under a boss carpenter one Coghill. Coghill ordered Maher on the day before the accident (June 21, 1884) to take the plaintiff and to put up a smoke jack on the defendant’s Forty-seventh street round house, “to rig up a scaffold and put it up.” The scaffold that was there was too small and Maher in completing the work procured the ladder.

The two men used the ladder safely until the plaintiff went up with a hook to nail in the rod. While doing this one side piece of the ladder broke about three feet from the top, and the plaintiff fell about twenty-four feet and was severely injured. The ladder was properly placed and used. The ladder showed a crack at the place of fracture made by driving in the rungs too tight or else the ladder had beeii exposed to the weather and had split for that reason.

It was an old ladder, and the crack had so been filled up with dust and grease that it looked strong, but the defect could be discerned by making a careful inspection. The ladder was used four or five times by the two workmen alternately before it broke. The case does not fall within Burke v. Witherbee (98 N. Y., 562). There a hook was provided to hold cars going down an incline. The cars were good and the hook was in order, but in some way became detached as an empty car was descending. The only proposition involved was whether the master was bound to so fasten the hook as to insure it against the liability to become detached. The master was not bound to furnish the best known appliances, but only such as a prudent man would furnish if his own life was exposed to the dangers from the use of the appliances.

Neither is the case like Powers v. N. Y. L. E. and W. R. R. (98 N. Y., 274). The employee in that case used a broken hand-car, by using a crowbar in place of a broken walking-beam. This wrenched a lever so that it broke. It was held that the employee, by using the machine with knowledge of the defect, assumed all risks of injury resulting therefrom. The case does not fall within the case of Marsh v. Chickering (101 N. Y., 396). The employee in that case got a ladder himself at the order of the master. He used the ladder for over six weeks safely. He asked that it be hooked and spiked, and it was proved by the superintendent that it should be so fixed.

The labor was ordinary, and no great care or skill in the work to be done, which was simply lighting lamps in front of the defendant’s building. This case was held by the court of appeals to fall within the principle, which exempted the master from furnishing the best known appliances.

The present case seems to be covered by the case of Benzing v. Steinway (101 N. Y., 541). It was there held that the master was bound to furnish ‘1 safe, sound and suitable tools, implements, appliances and machinery.” That the master cannot escape liability by delegating the duty to a subordinate: An employee was told to use a platform, and one of the boards composing it was rotten and broke, whereby he fell and was injured. The plaintiff in the present case was ignorant of the defect in the ladder. The master, by furnishing it, legally said that it was safe for the purpose designed. The defect could not be discerned except by careful inspection. The master owed the duty of making that inspection, and it was a question for the jury to pass upon whether the master was guilty of negligence in using the ladder in question for a purpose so dangerous to the employee, if it failed to support him.

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

Dykman, J., concurs.

Pratt, J.

(dissenting).—Plaintiff, while in defendant’s employ, was required to nail some rods upon the rafters of its round house. Owing to the peculiar construction of the building it became necessary to place a ladder about nineteen feet long upon a car eleven feet high which served for a platform. While plaintiff was upon the ladder near the roof, the ladder broke, throwing him to the ground and causing him personal injury. The work was under the control of one Mabie, a fellow-workman, who had been directed by the boss carpenter of the defendant to go to the round house and rig up a scaffold, and do what was necessary to perform the work.

The ladder was old, and broke in consequence of a split or crack that had existed for a long time, possibly since its construction. The crack could have been discovered by careful examination.

Upon this state of facts the plaintiff was nonsuited, and, we think, it must be sustained. It is to be observed that there is no proof whatever that this ladder was furnished by the defendant for the use of its employees, or for the purpose.to which it was put. The presumption would seem to be against such a view, as it was not adapted to the purpose, and could only be used upon the top of a car. The ladder was in the neighborhood, and Mabie, the fellow workman, brought it and placed it on the car for the plaintiff to mount. But assume that the ladder was furnished by the defendant for the use of its employees in the yard, the case still lacks an important element to charge the defendant. There is no sufficient evidence that the defendant knew of any defect, or that it had not used ordinary care in discerning any such defect, if it existed.

That it had been used for a long time is evident, and that it was as open to the plaintiff as to the defendant to examine and discover if any defect existed. If the defect was patent, then the plaintiff was guilty of negligence; if it was latent and secret, the defendant could not be held hable. If it was a part of the duty of the defendant to test this 1 adder from time to time to see that it was safe, what would a test have disclosed at the time of the accident ? It was tested just before the accident. Mabie had been up the ladder twice, and the plaintiff had just been up himself, so that neither an examination or test would have disclosed any more to the defendant than the plaintiff knew. But the law did not make any such exaction. All that was required of the defendant was to exercise ordinary care, diligence and foresight in keeping the appliances in such a condition as to be reasonably safe for the use of their employees.

The evidence in any view, fails to prove a breach of this duty. It is to be observed that neither plaintiff nor Mabie were told to use this or any ladder. They were simply told to go and do a certain job of work, and they selected their own means of accomphshing it. They were acting on their own discretion, and took the risk incident to the employment. If there were not adequate means at hand to accomplish the work, it was their duty to wait until they were furnished. If they took any implement that was never furnished or intended for that kind of work they did it at their own risk. A master who furnishes powder to blast rocks does not guarantee that it is safe stuff to kindle fires.

_ It is not necessary to discuss any question of presumption, as there is an utter failure to connect the defendant with the ladder in the use made of it by the plaintiff. A-careful examination fails to disclose any error, and the judgment must be affirmed, with costs.


text:
    People ex rel. Patrick Carlin, App’lt, v. The Board of Supervisors of Kings County, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Supervisors—Board of Kings county—Laws 1884, chap. 280—Right to REJECT BIDS.
    Under Laws 1884, chapter 230, the ho rd of supervisors advertised for sealed proposals, and reserved the right to reject any and all bids. Held, that a party having given his assent to such right of rejection by laying proposals before the board in answer to the advertisement, could not challenge this power to exercise the right.
    Appeal from the relator from an order entered in Kings ' county denying a motion for a peremptory mandamus.
    The relator claimed to be entitled to the relief demanded by virtue of the provisions of section 3, chapter 230, of Laws of 1884, providing for the purchase of a county farm and the erection of buildings thereon by the supervisors of Kings county.
    The section is as follows:
    1 ‘ Section 3. Whenever any such plan or plans and specifications shall be approved by the said Board of Supervisors, it shall advertise as now provided by law for proposals for the erection of the buildings and improvements thereby contemplated to be erected and made, and shall award the contract to the lowest responsible bidder or bidders. But the work so to be done may be let in one or more contracts as to the said Board of Supervisors shall seem for the best interest of the county. The' buildings aforesaid when erected shall be used for the care, custody, relief and support of the poor persons who are or shall hereafter become a charge upon the county of Kings, and of the persons committed or who may hereafter be committed to the asylum for the insane in said county.”

      M. F McGoldrick, for app’lt; J. B. Meyenborg, for resp’t.
   Pratt, J.

The relator moved for a peremptory mandamus to compel the respondents to contract with him for sixteen cottages, two boilers and a donkey engine.

Under chapter 230 of the Laws of 1884, the board of supervisors advertised for sealed proposals, and reserved the right to reject any and all bids. The relator and a number of others submitted proposals for separate portions of the work and a portion of the work was awarded to the relator, but a number of his bids were rejected.

It is claimed by the relator that the board of supervisors had no power under the statute to annex the conditions to their advertisement of reserving the right to reject any bid, but having once advertised for proposals were bound to award the contract to the lowest responsible bidder.

It is not necessary to decide whether the respondents had that power or not, the fact is that they did it, and the relator having made his bids under such advertisements, he cannot complain that they exercised the right he so conceded to them.

It was the plain condition of his bid that the board might reject it, and having given his assent to such rejection, he cannot challenge their power to exercise the right.

The plain object of the statute was to prevent the supervisors from arbitrarily awarding a contract to any one except the lowest responsible bidder.

There is no restriction as to the form or the number of times of advertising, but the statute contemplated that there should be competition, and that the contract should, in the end, be awarded to the lowest bidder.

The statute was intended to be beneficial to the county, and if such a construction can be spelled out of its terms, it is the duty of the court to be sedulous in giving it such an interpretation.

If the respondents had the power only to make one advertisement and were bound to award a contract if there was only one bid, the county might be subjected to the most glaring fraud. By using the terms the ‘ ‘ lowest bidder,” the intent of the statute that there should be competition is manifest.

If there is no bid with which a comparison, can be made, how can it be said that a bid is the lowest, and if there is no lowest, how can the contract be awarded ?

The return shows that the relator was the only bidder upon portions of the work where his bid was rejected, he was therefore, not the lowest bidder, within the meaning of the statute. He might be called the highest bidder as well as the lowest bidder. It seems to be a fair interpretation of the act that when the contract is awarded, it shall be to the lowest bidder.

It does not seem possible that the legislature intended to take from the local law making power, is, the board of supervisors, all discretion as to the making of contracts for the people of the county. Suppose, from accident or design, it should happen that there was but one bid and that was for grossly exorbitant prices, could it be claimed that the board of supervisors must nevertheless award the contract ? Such a construction would turn a statute intended for the protection of the public into an instrument of fraud and robbery.

Under the facts disclosed, we think the respondents had the power and did right in rejecting the relator’s proposals, and the order is accordingly affirmed with costs and disbursements.


text:
    Aaron S. Robbins, Resp’t, v. Joel J. Austin, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Deed—What sufficient execution of a deed made by an attorney , IN FACT.
    A deed commenced as follows: “This indenture made * * * E. M. of, etc., by F. M., her attorney, under and by virtue of a certain power.” The attestation clause was as follows; ‘ In witness whereof the said party of the first part, by her attorney, hath hereunto set her hand and seal the day and year first above written,” and the instrument was signed by F. M., attorney, and by B. M. Held,, that the deed conveyed good title to the lands of the principal included therein.
    Appeal from a judgment in favor of plaintiff entered upon the trial of the action at the Kings county special term by the court, without a jury.

      George C. Case, for app’lt; John Z. Lott, for resp’t.
   Pratt, J.

This is an action for the specific performance of a contract for the exchange of land. The only question involved is the execution of the deed from Eliza Meriam to William A. Bradley, through which the plaintiff claims title.

The deed begins: “This indenture, made the 9th day of June, 1874, between Eliza Meriam; of Ac., Ac., by Francis Meriam, her attorney, under and by virtue of a certain power.” The attestation clause is: “In witness whereof, the said party of the first part, by her attorney, hath hereunto set her hand and seal the day and year first above written,” signed, “Francis Meriam, attorney, by Eliza Meriam.”

We think this deed conveys a good title. The instrument fairly shows by its terms that it was the deed of Eliza Meriam, owner of the fee. The grant purports to be the grant of the principal, and the attestation clause shows that the principal is attesting to it—her hand, her seal. This complies with the requirements of the law.

In Wilks v. Back (2 East, 142), it was held that the signature, “for James Brown, Mathias Wilks,” was a good execution by Brown, and that authority is not overruled by any authority in the state, but is recognized law. See 23 Wend., 435.

In Wilks v. Back, Justice Grouse says: “I accede to the doctrine in all the cases cited, that an attorney must execute his power in the name of his principal, and not in his own name; but here it was so done, for where is the difference between signing T. B., by M. W., his attorney, which must be admitted to be good, and M. W. for T. B. In either case the act of sealing and delivery is done in the name of the principal, and by his authority, and whether the attorney put the name first or last cannot affect the validity of the act done.”

The cases upon which the defendant relies, namely: Townsend v. Corning (23 Wendell, 435), and Spencer v. Field (10 Wendell, page 88), do not contravene this doctrine, as in that case the deed was signed merely by the attorney, Harvey Baldwin, neither the hand nor seal of the grantor purport to be affixed to the instrument, and for that defect it was held invalid. Jones v. Carter.

4 Hen. and Mumf. 196, a deed executed by “Bushrod Washington, attorney for Carter,” was held to be good.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J. concur.