author: Learned, P. J.:

text:
    ISAAC G. GALE, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Excessive damages — setting aside of verdict because of— Misconduct of juror — waiver of.

    This action was brought to recover damages for injuries sustained by the plaintiff while crossing one of defendant’s tracks, and alleged to have been caused by its defective condition. Upon the trial it appeared that, prior to the accident, plaintiff had worked on a farm and could do any work connected therewith; that by the accident his right leg was broken near the hip; that he was confined to his bed from the time of the accident in July to October first; was placed in a special bed and his leg kept extended by proper appliances for eight weeks; that his right leg was one inch and a-half shorter than the other; that he could go over even ground with one crutch; and had mowed on a mowing-machine, raked with a horse-rake, and driven his team on the road somewhat, but was not able to do much farm work; that the injury was permanent and he could never recover therefrom. The jury rendered a verdict in his favor for $14,000. Held, that the verdict would not be set aside as excessive.
    During the trial, the court having adjourned, one of the jurors, who lived twelve miles from the court-house, asked the plaintiff to let him ride home with him. The plaintiff assented and the juror rode with him about ten miles, in a three-seated sleigh, plaintiff and the driver on the front seat, two other persons on the middle seat and the juror and another person on the back seat. Nothing was said about the trial. Subsequently, and before the testimony had been closed, the defendant’s counsel became acquainted with these facts, whereupon plaintiff’s counsel offered to allow this juror to be excused, if defendant’s counsel so desired. Defendant’s counsel stated he was willing to leave it to the juror’s sense of propriety whether he should or should not remain in the jury-box. Held, that even if the irregularity would, in any event, have justified the setting aside of the verdict, the acts and statements of the defendant’s counsel constituted a waiver thereof.
    Appeal from an order at Special Term denying a motion for a new trial upon a case and exceptions and affidavits.
    This action was brought to recover for injuries sustained by the plaintiff, by being thrown off his wagon, loaded with hay, when crossing the defendant’s track at Coeymans, Albany county, in consequence of the breaking of his wagon wheel. Such breaking was alleged to have been caused by the negligence of the defendant in not keeping the surface of the ground, and the timbers and planks at the crossing, in good repair. The answer alleged that the crossing was in good repair and that plaintiff’s injuries resulted from his own negligence.
    The action came on for trial at the Albany Circuit, and resulted in a verdict for the plaintiff of $14,000. The defendant moved for a new trial upon the grounds that the verdict was against evidence, and was excessive in amount; that errors were committed on the trial, and because of newly-discovered evidence, and for misconduct of one of the jury.

      Matthew Hale, for the appellant.
    The authorities show beyond question that this verdict ought not to stand. (.MeComiell v. Hampton, 12 Johns., 234; Gollims v. Albany and Schenectady Railroad Qompa/ny, 12 Barb., 492 ; Glapp v. Hudson Rimer Railroad Gompamy, 19 id., 461; Murray v. Hudson Rimer Railroad Gompamy, 47 id., 196; Tim/ney v. The New Jersey Steamboat Gompamy, 5 Bans., 507; Reck v. New York Gmt/ral amd Hudson River Railroad Company, 4 Hun, 236; Oox v. New York Central amd Hudson Rimer Railroad Gompamy, 4 id., 176; McIntyre v. New York Gentral, 47 Barb., 515; Chicago amd Rock Island Railroad Company v. McKea/rn, 40 111., 219, 237, 241; Illinois Central Railroad Gompamy v. Welch, 52 id., 183; Ghicago amd Alton Railroad Compamy v. Wilson, 63 id.', 167; Goodna v. Oskosh, 28 Wis., 300; Spicer v. Ghicago amd Northwestern Railroad Gompamy, 29 id., 580 ; Patton v. Same, 32 id., 195.)

      F. Countryman, for the respondent.
    There was no misconduct of the juror as alleged. The following cases show that where the act or thing said or done is a mere indiscretion or inadvertence, and occurred from motives of civility or kindness, without any intent to influence the juror — and where no injustice has been done — the verdict will not be disturbed: Hilton v. Soutlvworth '(17 Me., 303), Handley v. Gole (30 id., 9), Martin v. Mitchell (28 Ga., 382), Shea v. Laurence (1 Allen, 167), White v. Wood (8 Cush., 113), Jones v. YaÁl (30 N. J. Law Rep., 135), Hakim v. Morris Ganad, etc., Co. (21 N. J. L., 538), Sexton v. LeUearve (1 Coldw., 11), Morris v. Yi/oian (10 Mees. & Weis., 137). It is also distinctly held, in numerous cases, that where the alleged irregularity is brought to the knowledge of the party during the- trial, and he proceeds without objection, he thereby consents to abide the result, and he cannot afterwards raise the objection. (Fessenden v. Sager, 53 Me., 531; State v. Daniels, 11 N. IT., 383; Fox v. Hazelton 10 Pick., 275 ; Hallock v. Frankdin, 2 Met., 560; Martin v. Tickoell, 36 Ga., 332.) For so severe an injury, the amount of the verdict cannot be regarded as excessive. (Sloan v. H. Y. O. and H. Lt. B. Co., 1 Hun, 510 ; Hegemon v. Western B. B. Go., 16 Barb., 353; Shaw v. Boston and Wor. B. B. Co., 8 Gray, 16; Bansom v. Ff. Y. and Erie B. B. Co., 15 N. Y., 116; Laning v. FT. Y. G. and H. B. B. Go., 19 id., 525; Saunders v. London, etc., B. O., 98 Eng. Com. Law, 887; Wright v. London, etc., B. Go., L. R., 10 Q. B., 298; L. R., 1 Q. B. Div., 252.) The following cases of a different character, for personal torts, etc., though not strictly in point, are nevertheless illustrative of the large discretion given to juries in the assessment of damages where they are not founded on proof of items or amounts: In Chambers v. Gaulfield (6 East, 215), a case of crim. con., the verdict was £2,000 or $10,000, and sustained. In Wood v. Hurd (2 Bing. [N. C.], 185; 29 Eng. Com. Law), a case of breach of promise, the verdict was £3,500 or $17,500, and sustained. In Merret v. Harvey (5 Taunton, 112; 1 Eng. Com. Law), an action of trespass on lands, no actual damage, the verdict was £500 or $2,500, and sustained. Heath, J., in his opinion, said he knew of a case where a jury gave £500 ($2,500) damages for merely knocking a man’s hat off, and the court refused a new trial. In Townsend v, Hughes (2 Modern, 150), an action of slander, the verdict was £4,000 or $20,000, and sustained. In Fabrigas v. Mostryn (2 W. Black, 929), an action for false imprisonment, the verdict was £3,000 or $15,000, and sustained. In Leith v. Pope (2 ~W. Black, 1327), an action for malicious prosecution, the verdict was £10,000 or $50,000, and sustained. In Seherpf v. Szodeczky (1 Abb., 366), an action for enticing away a man’s wife, the verdict was $10,000, and sustained. In Morcm v. Pomes (4 Oow., 442), an action for seduction, the verdict was $9,000, and sustained. (See 24 Barb., 629.) In Fry v. Bennett (9 Abb. 45), action for libel, the first verdict was $10,000 (4 Duer, 247), which was set aside for errors of law, and the second verdict was $6,000, and sustained. In Ry ciernan v. Parkins (9 "Wend., 470), an action of slander, the verdict was $7,000, and was sustained as not excessive. In Ash v. Aston (Gen. Term, 2d department), an action of assault and battery, a verdict of $25,000 was sustained. In Puberley v. Ou/nnvng (4 Durnf. and East., 651), an action of erim. con., the verdict was £5,000 or $25,000, and was sustained, although Lord Kenton, before whom the case was tiled, would have been satisfied with only nominal damages. In Hewlett v. Grutchley (5 Taunton, 277; 1 Eng. Oom. Law), an action for malicious prosecution, a verdict for £2,000 or $10,000 was sustained as not excessive.
   Learned, P. J.:

The first and principal question is whether the verdict should have been set aside as excessive. On this point the counsel for each side has cited numerous cases. But in making comparisons of other cases with the present, we must notice two things: one is that the relative value.of money has diminished in recent times; another is that, generally, in the older parts of the country the relative value of money is less than in the newer. Furthermore it is difficult to make any just comparisons of this kind, unless we have before us all of the facts in each case, and not merely the brief statement of the reported cases.

The plaintiff’s right leg was broken near the hip. The-leg is an inch and a half shorter than the other. He can go over an even surface with one crutch. He is not able to do much farm work; but has mowed on a mowing-machine, raked with a horse-rake and has driven his team on the road somewhat. The injury is permanent; and he can never recover from it. He was confined to his bed from the time of the injury in July to the first of October; was placed in a special bed, and his leg was kept extended by proper appliances for eight weeks. Before the accident he was able to do any thing which he knew how to do about a farm. He had always worked on a farm.

On this point of setting aside verdicts as excessive we may properly follow the rule laid down in Coleman v. Southwiek (9 Johns., 45), which has been so often quoted. And while the amount recovered in this present case may seem large, we cannot say that it is beyond all measure unreasonable and outrageous and such as manifestly shows the jury to have been actuated by passion, partiality, prejudice or corruption.” A great injury was inflicted on the plaintiff; a permanent deformity produced, and a partial inability to work during the rest of his life. The plaintiff was in court and seen by the jury. The extent of the injury could be understood better by seeing it than it can be by reading the printed case. The plaintiff was, besides this, confined in bed during the healing of the fracture.

I do not think that there is much to be gained from a critical examination of all the cases of alleged excessive damages. It will generally be found that where verdicts have been set aside on this ground there have been some special or peculiar circumstances. For instance, in Peck v. New York Central and Hudson River Pailroad Company (11 S. C. N. Y., 236), the General Term evidently disbelieved the plaintiff’s statement of his injuries. In Cox v. New York Central and Hudson River Railroad Company the verdicts were set aside because there was in fact no harm whatever done to the plaintiff’s intestate.

The next point made by the defendant is that the plaintiff should have been nonsuited. The alleged negligence was the wearing away of plank at the crossing. The defendant claims that the weight of the evidence was that the crossing was at least fair and not such as to endanger any prudent traveler. But there was contradictory evidence upon this point; so that it was proper for the jury.

The defendant further insists that the plaintiff was negligent in driving too fast upon the track, and in using an old wagon with rotten spokes. But on these points also the evidence was contradictory, both as to the condition of the wagon and as to the rapidity of the plaintiff’s driving. And the case seems to have been fairly presented by the learned justice. The jury have decided the matter favorably to the plaintiff.

A motion was made to set aside the verdict for alleged misconduct of a juror. There is no pretense that the juror intended to do any thing wrong. During the trial the court adjourned on Friday; the juror was twelve miles from home; he asked the plaintiff to allow him to ride with him on his way home. The plaintiff consented and the juror rode with plaintiff for about ten miles and then got out of the sleigh. The plaintiff and another person sat on the front seat; the juror sat on the back seat with another person; and two others sat on the middle seat. No conversation whatever in regard to the action was had by any one ha. the sleigh while the juror was with them. After the trial had been resumed the next week, the fact that the juror had thus ridden with the plaintiff was elicited by the defendant’s counsel on a cross-examination of the plaintiff. The plaintiff’s counsel, before the case was submitted, offered to allow this juror to be excused, if the defendant’s counsel desired it. The defendant’s counsel thereupon stated that he was willing to leave it to the juror’s sense of propriety, whether he should or should not remain in the jury box. And the court said that the juror had stated the circumstances to the court and that it saw no impropriety in the act of the juror.

From these facts it seems not improbable that the defendant’s counsel might have thought that the juror in question, with a desire to show that he had not been improperly influenced, would possibly lean the other way, and would be likely to favor the defendant. If the defendant’s counsel had really supposed that the juror had been influenced in favor of the plaintiff, he would probably have accepted the offer to excuse this juror altogether.

The knowledge of this irregularity was brought to the defendant’s counsel before the testimony was closed. He made no objection to proceeding with the trial, and did not ask that a juror be withdrawn and the case go over. He must be deemed to have waived the objection. He cannot “ take his chance of a favorable verdict, reserving a power to impeach it should it happen to be against him; a proceeding inconsistent with the plain principles of fair dealing and with the frankness which ought to characterize the whole course of judicial proceedings.” (Fox v. Hazelton, 10 Pick., 275.) "When the counsel said that he left it to the juror’s sense of propriety whether or not he should sit, he must be supposed to have meant what he said.

It is not intended to imply that even if the irregularity had not been waived by the defendant it would have been ground sufficient for setting aside the verdict. (Hilton v. Southwick, 17 Maine, 303.)

The motion for a new trial on the ground of newly-discovered evidence was properly denied for the reason given in the opinion of the learned justice. The testimony and the character of the witness are also attacked so severely, as to show that little confidence can be placed in the new evidence which the defendant desires to introduce.

A witness for the plaintiff was asked on cross-examination whether he had applied to Milmine for the position of section master and had testified that he had not. Subsequently Milmine was called and asked by defendant whether Tuttle had applied to him for the position of section master and defendants offered to show that Tuttle had applied to Milmine and been refused. This was excluded and defendant excepted. If this question was asked for the purpose of discrediting Tuttle by showing that he had testified falsely it was inadmissible as touching a collateral matter. The defendant, however, claims that it was material as showing a hostile feeling to defendant. But this l’efusal by Milmine did not necessarily show any hostile feeling by the witness to the defendant. No question had been put tending to show that the feelings of the witness were hostile to the defendant. And this question to Milmine was put so as to indicate that it was intended to show a contradiction of Tuttle. It may be that evidence of the feelings of a witness towards a party is direct evidence in the case. But when a question is put like the present, the answer to which would show the feelings of the witness only deferentially, if at all, it cannot be an error in the court not to understand that possible inference. It by no means followed that Tuttle was hostile to the defendant, because Milmine had refused his application for a position. If the defendant’s counsel thought that hostility might be inferred, he should, in fairness, have explained this remote bearing of the evidence upon the merits.

Several exceptions to evidence are briefly made by the defendant. The statement by Adams was not objected to until given. No motion to strike it out appears. The conversation with Frayer, the “section boss,” was allowed only to show actual notice to the defendant of the condition of the crossing. It was his duty to attend to the repairing. And it was proper to show notice to the defendant’s officers that the crossing was out of repair.

Yeomans, a blacksmith, testified to his familiarity with wood, and gave his opinion as to the toughness of one of the wheels of the wagon, judging from its manner of breaking. This was before the accident. There seems to be nothing wrong in the admission of this evidence. The testimony of Stanton as to the manner of his own crossing the track was only a statement of the condition of the crossing which made it necessary to turn out so as to avoid the worn places.

The testimony by Reynolds as to the repairing of the crossing was expressly allowed only to show that the examination made of the crossing and testified to by him, had been made after the crossing had in fact been repaired. It was therefore proper. The same appears to be true of Stanton’s testimony on this point.

Before Tuttle gave evidence of his recent measurements of the ascent he testified to the amount of change which had been made on the railroad. This testimony made the recent measurements competent evidence.

From this examination we think that the order denying a new trial should be affirmed and judgment ordered on the verdict with costs.

Present — Learned, P. J., Boardman and Sawyer, «LJ.

Order denying new trial affirmed, lyith costs.


source: Caselaw Access Project

author: LeahNed, P. J.: Boardman, J.:

license: Public Domain

text:
    MARY W. SMITH, Plaintiff, v. EVALYN KENNEDY, Defendant.

      Married, woman — liability of, on note, when tier husband has entire control of hen'
    This action was brought to recover the amount of a promissory note made by the defendant, a married woman, who owned a farm of 330 acres, on which she lived with her husband. He had no property, but carried on the farm for her and bought and sold whatever he pleased, using her money by her consent. Every thing he bought became hers. The proceeds of the note, as soon as received, were given by her to her husband, and were not used by him for plaintiff’s benefit or that of her separate estate.

      Held, that the defendant was engaged in carrying on the business of farming through her husband, acting as her agent, and that she was liable for the amount of the note.
    Motion for a new trial on a case and exception ordered to be beard in tbe first instance at tbe General Term, after a verdict directed in favor of tbe plaintiff.
    This action was brought upon a promissory note made by defendant, payable to Mary W. Smith or bearer, for $500, with nse, and dated on tbe 4th day of July, 1865, payable one day after date. Tbe defense, among other things, was that tbe defendant at the time of tbe execution and delivery of tbe note was a married woman, and that tbe note was executed and delivered for money loaned to her husband, George W. Kennedy, and was not given for tbe benefit of her separate estate. Tbe defendant received the money and gave her note for it. She immediately gave tbe money to her bus-band, who testified that none of it was used for defendant’s benefit or for tbe benefit of her separate estate. At tbe close of tbe evidence tbe defendant made a motion for a nonsuit, which motion was denied, and defendant duly excepted. Tbe defendant then requested tbe court to direct a verdict for tbe defendant, which was refused, and defendant excepted.
    Tbe plaintiff’s counsel requested tbe court to direct a verdict for tbe plaintiff and against tbe defendant for tbe amount of tbe note and interest and costs, on tbe ground that tbe money being delivered to defendant, and she executing tbe note, was evidence that tbe money was obtained for tbe benefit of ber separate estate, and. thereupon the court directed a verdict in favor of the plaintiff and against the defendant for $652.80, to which decision and direction thus made defendant duly excepted.

      Waters <& Knox, for the plaintiff.

      K. O. Timer, for the defendant.
   LeahNed, P. J.:

On the trial of this case the counsel of each party thought there was no question for the jury and the court directed a verdict for the plaintiff.

The defendant was a married woman and owned a farm. Her husband did not own a dollar; but he carried on the farm and dealt with it by her permission, as he chose. When he bought any property he bought it for her. If he wanted to sell any thing he sold it; and he used this defendant’s money, by her consent, as he pleased. The farm was one of 830 acres, and there were, at the time of the transaction, sixty cows on it. Whatever the husband bought on the farm was the wife’s property; and his creditors could not find any property of his.

This, then, is a case where a married woman was carrying on the business of farming through her husband as her agent. He was none the less her agent because she seems to have given him unlimited power and authority to do as he pleased. The avails of the business were hers, although she choose to give them to him. In Nash v. Mitchell (MSS., decided November 13, 1871) the Court of Appeals held that the management by a married woman of her landed property, the receipt of the rents and income and the disposing of them was not a trade or business within the meaning of the statute. But in the present case the defendant actually carried on the business of farming and was not merely in receipt of rents.

She borrowed this money in her own name and received it herself. She then handed it over to her husband who was carrying on the farm. It thus became part of the property employed in that business. The fact that the husband wasted or misused it does not alter the liability of the wife who borrowed it.

The very money borrowed became a part of her separate estate by the act of borrowing, and tbe promise to repay it related to her separate estate. Her husband was not liable; and it would be utterly unrighteous if she should be permitted to cheat tbe plaintiff out of this money. (Bodine v. Killeen, 53 N. Y., 93.)

Tbe motion for new trial should be denied and judgment ordered on tbe verdict, with costs.

Boardman, J.:

Tbe case of Bodine v. Killeen (53 N. Y., 93) seems to me to sustain the foregoing views and conclusion.

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

New trial denied and judgment ordered for plaintiff on verdict, with costs.


author: Learned, P. J.: Boardman, J.:

text:
    OLIVER P. RANNEY, Appellant, v. SQUIRE A. WARREN, Respondent.

      Vrcmdulent representations — an action lies to annul bond and mortgage proewred by.

    The complaint in this action alleged that the plaintiff was induced, by the fraudulent representations of the defendant, to purchase from him a farm for $18,000, which, if his representations had been true, would have been worth $20,000, but it was, in fact, worth not over $12,000; that he paid $5,000 in cash, assumed a mortgage for $2,000, and gave a bond and mortgage back for $11,000, payable in $1,000 annual installments, one of which he had paid, and prayed that the bond and mortgage might be canceled, and for damages. At the Circuit the complaint was dismissed, on the ground that no damages had as yet been sustained, and that the facts alleged would prove a defense to an action brought to foreclose the $11,000 mortgage.

      jHeld, that the court erred in dismissing the complaint; that, upon the facts alleged therein, the plaintiff was entitled to maintain an action in equity to have the bond and mortgage canceled and delivered up to him.
    Appeal from a judgment in favor of tbe defendant, entered upon a nonsuit directed at tbe Circuit.
    Tbe plaintiff’s complaint alleges that by tbe defendant’s fraudulent representations be was induced to purchase a farm of tbe defendant for tbe sum of $18,000 ; that tbe farm was, in fact, worth not over $12,000; that if tbe defendant’s representations bad been true tbe farm would have ,been worth $20,000; that the plaintiff paid in cash $5,000, assumed a mortgage of $2,000, and gave a bond and mortgage for $11,000, payable in $1,000 annual installments, one of which he has since paid.
    He asks that the bond and mortgage be declared void and canceled, and given up to him, and for damages and costs.
    The justice who tried the case held that damages had not been sustained, and that it was not certain that they would be sustained, since the defendant left unpaid the purchase-price of the farm, to an amount greater than the daniages claimed, and if the allegations of the complaint were true, that he could defeat a recovery on the bond.

      P. O. Betts, for the appellant.

      Tanner da Potter, for the respondent.
   Learned, P. J.:

Without discussing the correctness of the learned justice on the mere question of damages it seems to us that he overlooked the fact that a part of the relief demanded, and perhaps the principal part, was the equitable relief of a surrender and cancellation of the bond. If the allegations of the complaint were true the defendant had by fraud procured the plaintiff to execute this bond and the accompanying mortgage.

Now fraud is often a defense at law to an action upon an instrument. Put on the other hand fraud is a ground for affirmative relief in equity; that is, for the relief of decreeing a surrender and cancellation of the instrument, the execution of which was obtained by fraud. And there are some cases where the relief in equity is much more safe and complete. In the present case, for instance, this bond is payable in installments. It will be ten years from the time of the transaction before the last installment becomes payable. The proof of the alleged fraud may by that time be difficult. Questions may arise as to the statute of limitations. For these and for other reasons the present seems to be a case (assuming the complaint to be true) where it would be proper for equity to grant affirmative relief against this bond and mortgage.

It is not necessary to refer to authorities to show that where a person has by fraud procured another to execute a bond equity may sustain an action to compel the surrender of the instrument, although no actual money damage has yet been sustained. It cannot affect this general principle that the fraud was committed in the sale of land to the obligor, provided the fraud was in fact practiced ; and provided the circumstances show that the equitable relief is needed to do justice between the parties.

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

Boardman, J.:

I concur in the result, but think the error consisted in holding that a cause of action for fraud was not stated in complaint, and that no damages could be recovered because the damages alleged were less than the unpaid purchase-price of the farm.

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

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


author: Leakned, P. J.:

text:
    JAMES W. RICHARDSON, Appellant, v. SAMUEL S. WARNER and others, Administrators etc., of MICHAEL WARNER, Deceased, Respondents.

      Sec. 399 of Code — “assignee” — meaning of — what witnesses excluded by — § 829 of the Code of Oivil Procedme.

    This action was brought upon a promissory note made by the defendant Warner, to the order of and indorsed by one Ayer, and subsequently indorsed by one Alexander, and by him transferred to the plaintiff. Alexander died before the trial. The signatures of the maker and indorsers were proved. Ayer was called by the defendants, the legal representatives of Warner, and against plaintiff’s objection and exception allowed to testify as to a personal transaction, between himself and Alexander, tending to establish the defense of usury.

      Held, that Richardson was an “assignee” of Alexander, within the meaning of section 399 of the Code:
    That Ayer was a person “from, through or under whom” Richardson derived title within the meaning of that section.

      That the fact that the defendants, the legal representatives of Warner, by whom Ayer was called, did not derive title from him, did not render him competent. That the evidence should have been excluded.
    Under section 829 of the Code of Civil Procedure, which is the substitute for section 399 of the old Code, the witness would have been competent, as by that section the witness is only prohibited from being examined in his own behalf or interest, or in behalf of the party succeeding to his title or interest.
    Appeal from a judgment in favor of the defendants entered upon tlie report of a referee. The action was brought to recover on three promissory notes, one for $3,000 and two for $2,500 each, made by Michael Warner, the original defendant and the intestate of the present defendants, and indorsed by one Daniel Ayer.
    The answer admitted the execution of the notes, but alleged that they were made solely for Ayer’s accommodation, and that Ayer indorsed them and procured them to be discounted at a usurious and unlawful rate of interest. The plaintiff gave in evidence the notes indorsed by Daniel Ayer and Andrew Alexander, and it was admitted that Alexander was dead at the time of the trial. Defendants then called Daniel Ayer as a witness, and offered to prove by him an oral usurious agreement for the discount of the notes, made between himself and Andrew Alexander, deceased. His testimony was objected to by plaintiff’s counsel as incompetent and inadmissible under section 399 of the Code. The defendants’ counsel then delivered to the witness a release of all claims, executed by the defendants. This was objected to by the plaintiff as immaterial, and that it did not make the witness competent, or affect his right to testify; and that a release by administrators for a nominal consideration was unauthorized and invalid; but it was received in evidence, and the witness was then allowed, under the objection and exception of plaintiff, to give evidence of a personal transaction between himself and Andrew Alexander, deceased. He testified that the notes were made by Michael Warner for his, witness, accommodation; that he got them discounted by Alexander at a rate of not less than ten per cent, and Alexander gave him the avails of the three notes, deducting the discount.
    The plaintiff moved to strike out Ayer’s testimony as to the discount of the notes and rate of discount on the same ground as stated in the objections. The motion was denied, and the plaintiff excepted.

      The principal question in the case is, whether Ayer was a competent witness in this case as against the plaintiff.

      Matthew Hale, for the appellant.

      Parker c& Countryman, for the respondents. Ayer was not examined against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of Alexander. The plaintiff was not the assignee of Alexander. (Ba/rtlett v. Ta/rbox, 1 Keyes, 495; Porter v. Potter, 18 N. Y., 52; Gardner v. Gordon, 3 Bosw., 369; Anderson v. Busteed, 5 Duer, 485 ; Trayhagam, v. Trayhagam,, 40 Barb., 537; McCray v. McCray, 12 Abb., 1; Byaldmg v. Hollenbeck, 39 Barb., 79.) “Assignee”, does not include “ legatee.” {Eight v. Sackett, 34 N. Y., 447.) Ayer did not come within either of the three classes mentioned in the first part of section 399. He was not the party; he was not interested, for he had been released. He was not a person from whom the party calling him derived title. A co-party defendant is excluded by section 399. {Alexander v. Dutchess, 7 Hun, 439; Genet v. Ba/wyer, 61 Barb., 211.) But the restriction has never been held to apply to an adverse party.
   Leakned, P. J.:

The witness offered is Ayer. The personal transaction is, between him and Alexander, deceased. And Ayer is examined against Richardson.

The first question then is, whether Richardson is the assignee of Alexander, deceased, under the meaning of this section. The defendants, to show that he is not, cite Bartlett v. Tarbox (1 Keyes, 495), and Porter v. Potter (18 N. Y., 52). But these decisions do not apply. The section of the Code, as it then stood, was quite different. In the latter of these cases Judge Denio remarked that the decision would not be a precedent, because the Code had been changed (see Code of 1851); Mattoon v. Young (45 N. Y., 696), held that the word assignee in this section included a grantee, and the court said that the intention was to exclude the testimony as to all persons who have succeeded to or acquired the right of the deceased. (See, also, Cary v. White, 59 N. Y., 336; Andrews v. National Bank of North America, 14 S. C., N. Y., 20.) And if we look at the reason of the rule it is plain that the section should apply to Richardson as to an assignee of Alexander. Ayer is about to testify to a personal transaction between him and Alexander, and Alexander is not living -to contradict him. Richardson took the note from Alexander., He is the assignee of Alexander, as was held by the referee.

The next question is, whether Ayer belongs to any one of the three classes of persons who are excluded. 'He is not a party. Is he a person from through or under whom a party to the action derives any interest or title ? The latter part of the section which we have been examining above enumerates the persons against whom certain witnesses may not testify. The first part, which we are now considering, defines who these witnesses are. They are, first, parties; second, persons interested; third, persons from, through or under whom parties or persons interested derive title or interest.

The note was made by Warner to the order of, and was indorsed by, Ayer. The signatures were proved to be genuine and the death of Alexander was proved. At this point Ayer was offered as a witness. Now the plaintiff derived his title to the note through and under Ayer. It was necessary to prove Ayer’s transfer of the note by indorsement in order to show the plaintiff’s title. And the plaintiff’s title had in fact been shown in that way.

True, the plaintiff’s title did not come directly from Ayer, but passed through Alexander. But the language of the section is broad — “from, through- or under,” “derives any interest” “by assignment or otherwise.” The plaintiff has a title to the note and thus a right of action against Warner. How does he derive it? From Ayer’s transfer to Alexander and Alexander to him.

It is argued by the defendants (and it was so held by the learned referee) that as the defendants called Ayer as a witness and as they did not derive their title from him, he was competent. There is force in this view. But it seems to us that we must follow the language of the section. In Mattoon v. Young (ut supra) it was held by the Court of Appeals that this section in some instances rendered witnesses incompetent who had been competent by the common law. In Alexander v. Dutcher (14 S. C. N. Y., 439), affirmed in the Court of Appeals) it was held, that this section, made a witness incompetent in a case where previously he had been competent by statute. So that the section had been held to have a restrictive and not always an enlarging, effect. And the language of the section is general. It does not say: “Any person from, through or under whom the party calling him derives any interest. (Le Clare v. Stewart, 15 S. C. N. Y., 127.) Since the trial of this action the legislature have changed the section so as to conform to the position of the defendants, by inserting, after the word “ witness,” the words “ in his own behalf or interest.” (Code of Civil Procedure, § 839.) This change of language indicates that the section, as it stood at the time of the trial, was not to be construed as if it contained those words. So far as this construction of the section should seem to apply to a party when called as a witness it is probably controlled by the previous section, 390. The evil which section 399 guards against can hardly exist when the party is called against himself by the other.

For these reasons we think Ayer was improperly admitted and there must be a new trial, costs to abide the event; reference discharged.

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

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


author: Sawyer, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. DANIEL STEPHENS and others, Appellants.

      What lands taken for canals mazy be abandoned— Const, of 1846, azrt. 7, § 6 —power of legislaiazre to dispose of canals — Letters patent — presumption as to issue of.

    Section. 3 of chapter 352 of 1849, authorizing the commissioners of the land office to convey “lands taken for canal purposes,” which the canal hoard shall have determined may he sold beneficially to the State, and chapter 267 of 1857, authorizing them to convey any “lands taken for the purposes of the canals of this State ” when the canal board shall have determined that they h^ve been abandoned, authorize a conveyance of lands taken for the bed of the canal itself, when that portion of the canal has fallen into decay, and ceased practically to be used as a canal.
    Section 6 of article 7 oflthe Oonstitution'of 1848, providing that “ the legislature shall not sell, lease or otherwise dispose of any of the canals of this State, but they shall remain the property of the State and under its management forever,” only applies to the canals while they continue to be canals, and not to cases in which, as the result of natural causes, not fraudulently produced, the canals cease to be used as canals and are of no further use to the people of the State.
    In determining the extent of the authority conferred upon a board of State officers, resort may be had to the subsequent legislative construction of the statutes conferring the same.
    Letters patent are presumed to have been regularly issued.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to vacate letters patent issued by the governor of this State to the defendant Daniel Stephens and others, of the southern terminus of the Chemung canal.
    The justice before whom the action was tried found, among other things, that the canal commissioners of this State, in pursuance of an act of the legislature thereof, passed April 15, 1829, authorizing and requiring them to construct and complete a navigable canal from the head waters of Seneca lake to the Chemung river at Elmira, took and appropriated for that purpose lands hereinafter described in letters patent issued to the defendants, Daniel Stephens, Frederick C. Steele and one Elijah P. Brooks, and constructed and completed said canal in 1832, and in the construction and completion thereof, for the purpose of permitting the passage of boats, rafts and other water craft from said river to and upon the canal, and from said canal to and upon the river, constructed near the intersection of said canal with said river a canal lock, known as lock forty-nine, the north end of which was about 250 feet from the intersection of said canal with the river; that said canal was, including said lock and the intersection of said canal with said rivei', one of the canals of this State when the Constitution of 1816 took effect; that said lake and said river were each navigable waters, and that one object of authorizing and requiring the constructing of said canal was to connect the navigable waters of Seneca lake with those of Chemung river, and not only to increase for public benefit the use of said lake and river, but to gain for the canal profits to be derived from the commerce of both lake and river. Afterwards the Junction Canal Company, a private corporation, constructed a navigable canal, known as the Junction canal, in which the State had no interest and over which it had no control, commencing at and intersecting the Chemung canal about one mile north of its terminus at the Chemung river, and extending therefrom in a south-easterly direction about one and a half miles to, and then intersecting the Chemung river about two miles below or down the river from the southern terminus or intersection of the Chemung canal with the river; that said junction canal was completed and opened for business in 1856 ; that the southern terminus of the Chemung canal, including lock forty-nine, continued to be used as it had theretofore been used, for the purpose of navigating boats, rafts and other craft from said river to and upon said Che-mung canal, and from said canal to and upon said river, until 1858, after which it was permitted to become out of repair, insomuch that a portion of it, including said lock forty-nine, became unfit for use until it should be placed in repair; that while the southern terminus of said canal, including said lock forty-nine, was in this condition unfit for use, and prior to the 11th day of June, 1866, one Charles Hulett and others applied to the canal board to have certain lands declared abandoned; that, on the 17th day of July, 1866, the commissioners of the land office resolved that certain lands in the city of Elmira, declared abandoned by a resolution of the canal board passed that day, be granted to Daniel Stephens, Frederick O. Steele, Elijah P. Brooks, Charles Hulett and William Beach, grantees of the original owners, etc.; that, on the said seventeenth day of July, the governor of this State by letters patent granted and quitclaimed to the defendants, Daniel Stephens, Frederick O. Steele and to Elijah P. Brooks a parcel of the said premises; that said premises described in said letters patent included said lock forty-nine, then an existing and material portion of the Chemung canal, though at the-time out of repair and unfit for use, and which was the only passage owned by the State through which boats, rafts or other water craft could be passed from said canal to and upon the river, or from said river to' and upon the canal, or for the water let into said canal for the purposes of navigation to pass therefrom at or within several miles of its southern terminus, and for that purpose alone it was material and necessary not only for the preservation of the canal north of it, bnt to prevent an overflow of the banks of the canal, thereby injuring the property of private owners, unless other means were devised for the discharge of the waters; that the governor issued his letters patent in ignorance of the fact that the premises described therein embraced lock forty-nine; that the same or any portion thereof had not been abandoned by reason of any other means provided by the State for the passage of boats or other craft to and from said river, and that said lock was tlien an existing portion of the Chemung canal, though out of repair and unfit for use; that each and all of the defendants rely upon and claim title under said letters patent, and found as a conclusion of law from the foregoing facts, that the plaintiffs were entitled to the judgment of this court that said letters patent be annulled or removed as a cloud upon the plaintiff’s title to said premises, with costs to be adjusted.

      G. 8. Fawehild, attorney-general, for the plaintiff.

      Robert Stephens, for the defendants Stephens and Steele.

      Tu/rner, Dexter c& Vcm Duzer, for the defendant S. B. Iiubbelh

      Rufus Kwig, for the defendants L. A. and J. S. Humphrey.
   Sawyer, J.:

It is to be presumed in the first place that these letters patent were regularly issued. (People v. Mauran, 5 Den., 398; Jackson v. Marsh, 6 Cow., 282.) Their validity depends, therefore, in the first place, upon the construction to be given to the various acts of the legislature conferring authority upon the canal board to sell and dispose of lands taken for the use of the canals. Section 3 of chapter 352, Laws of 1849, authorizes the conveyance, by the proper officers, of lands taken for canal purposes, and which the canal board shall, by resolution, determine, maybe sold beneficially to the State. And in 1857, by chapter 267, the legislature enacted, section 1: “ Whenever the canal board shall, by resolution, determine that any lands taken for the purposes of the canals of this State have been abandoned * * * it shall, or may, be lawful for the commissioners of tbe land office to sell, grant and convey tbe right, title and interest of the State in such lands.” Section 2: “ The original owner or owners of said abandoned canals, their heirs or assigns who may be the owners of lands adjoining thereto, shall have the preference, etc., in purchasing.” The power to grant the lands in question depends upon the authority conferred by these statutes upon the canal board.

And it is contended that because some part of these lands once constituted a portion of the canal itself, therefore the canal board had no right under these statutes ever to declare it abandoned, and per consequence, the commissioners of the land office ever to grant or convey the same.

It seems an over refinement in the construction of language to say that the expressions “lands taken for canal purposes,” and lands taken for the purpose of canals,” necessarily import lands that have not been used for the bed of the canal, and that the authority to declare, by resolution, “that lands taken for the purposes of the canal have been abandoned,” may not include a portion of the canal that has ceased to be used, fallen into decay, been filled up and ceased practically any longer to be a canal. If we may resort to legislative construction to determine whether authority was intended by these statutes to be given to abandon what had once been a portion of the canal, it will appear that the portion of the canal upon the lands covered by the defendants’ patent has been most unequivocally treated as abandoned.

By chapter 471, Laws of 1864, the legislature authorized the canal commissioners to build, in place of lock 49, an arched stone culvert to act as a waste-weir.

By chapter 785, Laws of 1872, the legislature authorized a portion of the bed of this canal to be used for á public street, and by chapter 607, Laws of 1875, authorized the city of Elmira to fill in and'use a certain other portion of the canal bed for a street.

Besort may also be had to the title of a statute, to aid in determining its meaning, when its meaning is doubtful. (Jackson v. Gilchrist, 15 Johns., 89; Constantine v. Van Winkle, 6 Hill, 184; U. S. v. Fisher, 2 Cranch, 358; Potter’s Dwarris on Statutes, 269.) And recurring to the title of this statute (chap. 267, Laws 1857), we find it thus : An act in relation to abandoned canals.” It would seem, therefore, that the terms lands taken for the purpose of the canals,” and “lands taken for canal purposes,” might include the former bed of an abandoned or disused canal, or a portion of it. (See, also, chap. 361, Laws of 1869.)

I do not think section 2 of chapter 169, Laws of 1862, was intended to limit the previous acts or construe them. That act specially mentions the canals intended to be affected by it.

The act is, “An act in relation to the enlargement and completion of the canals,” and refers to the canals mentioned in section 3 of article Y of the Constitution, among which is not the Chemung canal. That had long prior to the Constitution been completed, and its enlargement not provided for or contemplated.

These considerations lead to the conclusion that the letters patent issued in this case and the resolution of the canal board were authorized by the statute and fully warranted by the facts, no fraud being claimed or proven, unless they are in violation of section 6, article Y of the Constitution of 1846. In The People v. Dayton (55 N. Y., 367), the court say: “ The practical construction given by the legislature to a constitutional provision acquiesced in for years, acted upon by the executive and administrative officers, unquestioned for years, is entitled to controlling weight in its interpretation.”

The legislature, since the adoption of the Constitution of 1846, have passed various acts for abandoning and selling portions of the canal, which have received the approval of the executive and have never been questioned; among which are chapter 214, Laws 'of 1850; chapter 361, Laws of 1869.

The evidence clearly establishes, and the findings of the learned judge before whom this case was tried confirm, the fact that, for all practicable purposes, this portion of the canal between the basin and the Chemung river, covered by this grant, had become utterly useless to the State and had been practically abandoned as far back as 1858. The clear.and obvious meaning of this section of the Constitution is, that the State will not lease and sell the canals while they continue to be canals; but will it be contended that if, by any convulsion of nature, the bed of the canal, or any portion of it, should be reversed, so that instead of a ditch there was a ridge, that the State would be bound to keep the lands, worthless for navigation, worthless to the State, worthless and unusable for all the purposes for which they were obtained. If so, the action of the canal board in selling tbe old bed of tbe Erie canal, where curvatures had been cut off to straighten it, and the old channel abandoned, was clearly unconstitutional; and yet I fail to find that the strictest constructionist has ever so held.

But it will be said that by this theory the whole of the canals might eventually be absorbed; granted; and what then ? If the gradual abandonment be the result of natural causes, be not fraudulently produced, by which the canals cease to be canals and of no further use to the people of the State, clearly the Constitution did not contemplate that the people should remain the owners of these waste lands forever; they are not to be leased or sold so long as they continue to be canals. When they cease to be canals, the reason for the inhibition ceases, and with it the inhibition. Oesscmte ration» legis cessat ipsa lex. These views render it unnecessary to consider the other questions raised by this appeal.

The judgment should be reversed and judgment directed for the defendants, dismissing plaintiff’s complaint with costs.

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

Judgment reversed and judgment ordered for defendants, dismissing complaint with costs.


text:
    FLOYD PELTON, Plaintiff, v. THE WESTCHESTER FIRE INSURANCE COMPANY, Defendant.

      Inswranee on interest of purchaser of land —in possession and in defcmlt under a contrast for the sale thereof.

    A policy of insurance issued to one in possession of land under a contract for the purchase thereof, is not rendered invalid by the fact that, at the time of issuing the policy, the assured has, by a failure to perform the contract on his part, rendered the same voidable at the election of the vendor, where such right has not been exercised, although the fact that he was in default was not stated to the company.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict for plaintiff directed by the court. .

      The plaintiff was the owner of a lot in the village of Monticello. On the 3d day of May, 1872, he entered into a contract with one Samuel K. Brown for the sale of said lot to said Brown, which contained, together with the usual provisions of executory contracts for the sale and purchase of land, a covenant on the part of Brown that he would erect on the premises a building worth, at least, $1,000; and that he would keep the premises insured and the policy assigned to Pelton, the plaintiff. Under such contract, Brown took possession of the property and erected the building.
    On or about September 1, 1872, Brown and defendant’s agent made a contract for the insurance of such building, upon which a policy in due form, bearing such date, was issued. The agent testifies that, in that conversation, Brown told him that he (Brown) was the owner of the building; that there was no mortgage on it; that he owed something on it for labor and materials.
    On the 8th of October, 1872, the following indorsement was made on this policy : “ Oct. 8, 1872. Loss, if any, payable to Floyd Pelton, mortgagee, as his interest may appear.” The word “ mortgagee” was subsequently erased by defendant’s agent, and the words “ as collateral ” were inserted in their place. This was done at the request of plaintiff’s attorney. When the year expired, a new policy was issued in renewal of the old one, containing the same clause relative to payment to plaintiff. The word “ mortgagee ” was retained, however, by mistake, the change having been made at Monticello, and not having been noted on the books of the agency, which were at Ellenville. While this latter policy was in force, the building was totally destroyed by fire. At the time of the fire the plaintiff was still the owner in fee of the premises, and Brown was in possession under his contract. Due proof of loss having been made, and the defendant having refused to pay, this action was brought on the policy. The defendant claimed that, at the time of procuring the insurance, Brown had not the entire, unconditional and sole ownership of the premises, but that he was in possession thereof under a contract to purchase the same; and that the sum he had agreed to pay had not been paid pursuant to the terms thereof, by reason whereof the contract had become forfeited. It came on for trial at the Sullivan Circuit, where a verdict was ordered for the plaintiff for $1,189, and the presiding justice directed the exceptions to be heard at the General Term in the first instance.

      A. SehoonmaJcer, for the plaintiff.

      A. O. da T. A. Niven, for the defendant.
   Sawyer, J.:

All of the question’s raised by the appeal in this action have been adjudicated adversely to the appellants (Frink v. Hampden Ins. Co., 1 Abbott [N. S.], 343; Grosvenor v. Atlantic Ins. Co., 17 N. Y., 391; Acer v. Merchants' Ins. Co., 57 Barb., 68; Ætna Ins. Co. v. Tyler, 16 Wend., 385; Dohn v. Farmers' Ins. Co., 5 Lans., 279; Maher v. Hibernian Ins. Co., 6 Hun, 353; Rowley v. Empire Ins. Co., 36 N. Y., 550; Owens v. H. P. Ins. Co., 56 id., 565; Pitney v. Glens Falls Ins. Co., 65 id., 6), except the question, what effect was produced in the relations between the insured and the insurer by the fact that at the time of .effecting the insurance Brown, the insured, was in default in making the payments called for by his contract of purchase, such fact not having been brought to the direct knowledge of the defendant.

Brown’s contract of purchase contained, among other things, this provision: “ On failure to perform the contract on the part of Brown, the said Pelton may declare the contract void and retain whatever moneys have been paid thereon.” Brown was confessedly in arrear in making his payments, but he was in possession of the premises and had erected thereon the building called for by the contract which was the subject of this insurance. Pelton, the vendor, had not availed himself of his legal right to declare the contract void. How, then, did this affect the relative rights of the parties ? This provision did not, upon default in payment, render the contract void, but voidable only, at the election of the vendor ; he having not so elected, no change in the relative positions affecting the title was produced. Either party might still insist upon a specific performance. (Lawrence v. Dale, 3 Johns. Chancery, 23; Hutchins v. Munger, 41 N. Y., 155.) The contract, therefore, as between the parties to it, was still a valid and subsisting contract, enforceable by either party upon tendering performance. (Kort right v. Cady, 41 N. Y., 343.) Brown’s equitable title to tbe premises and insurable interest in tbe buildings erected tbereon bad not ceased by reason of tbe default, and witliin tbe doctrine of tbe cases cited (supra) be did not misstate bis interest nor violate tbe conditions of tbe policy in not disclosing that fact.

Tbe exceptions, therefore, must be overruled and judgment ordered upon tbe verdict for tbe plaintiff, with costs

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

Motion for new trial denied, and judgment ordered for plaintiff on verdict, with costs.


author: Sawyer, J. :

text:
    ELIZABETH M. ALVORD, Plaintiff, v. NICHOLAS H. HAYNES and CHARLES TOWER, Defendants.

      Levy by sheriff — when sufficient to sustain replevin or action for conversion — plaintiff in judgment — when responsible for acts of sheriff.

    A sheriff, by virtue of an execution against one Alvord, levied upon property belonging to his wife.

      Held, that the act of the sheriff in levying upon the property was such an exercise of dominion over it as would sustain an action for its conversion or one of replevin, although there was no actual removal of the property.
    That his liability was not affected by the fact that he claimed to levy upon, and advertised for sale the interest of the husband alone, when the husband had, in fact, no interest therein.
    The facts that the plaintiff, in the judgment, directed the sheriff to get the executions, and consulted and advised with him and approved of his making the levy, are sufficient to sustain a verdict against him.
    Motion for a new trial on a case, and exceptions ordered to be beard in tbe first instance at tbe General Term, after a verdict in favor of tbe plaintiff, directed by tbe court.
    Tbis was an action for tbe claim and delivery of personal property consisting of farming tools, farming stock and unharvested crops, brought by tbe plaintiff, who is a married woman, against tbe defendant Haynes, who is sheriff of Cortland county, and who, by virtue of two executions issued out of tbe County Court at tbe instance of tbe defendant Tower, who was plaintiff in said executions, levied upon the aforesaid property. There was no removal of the property levied upon, and the sheriff claimed to levy upon and advertise for sale only the interest of Fenn G. Alvord, the plaintiff’s husband, in said property. The evidence showed that the plaintiff leased the farm upon which said property was, of her father-in-law, and had carried it on for several years, paying the rent herself, and disposing of the products of the farm and receiving the avails thereof, and that the property levied upon was the growth of said farm, or arose out of the products thereof. It appeared that the plaintiff had some property or money in her own right, and that she managed said farm and disposed of the products thereof through her husband, as her agent. It also appeared that the defendant Tower directed the sheriff to procure said executions and advised and consulted with the sheriff in regard to levying upon the property.
    This action came on to be tried at the Cortland Circuit in September, 1876, before Mr. Justice Foklett and a jury. At the close of the testimony the court held that there was no question of fact for the jury, and directed the jury to find a verdict for the plaintiff for the return of the property, assessing its value as proved on the trial, and as to which there was no dispute, and six cents damages for the detention thereof, to which direction the defendant excepted. The jury found a verdict for the plaintiff in accordance with the foregoing directions, to which the defendant excepted. The court directed the exceptions to be heard in the first instance at the General Term, and that judgment be in the meantime suspended.

      Waters & Knox, for the plaintiff.

      O. Porter, for the defendant.
    This property was all made by the labor of Fenn G. Alvord and his minor son. (.Buehley v. Wills, 42 Barb., 569;- Goss v. Cahill, 42 id., 310; Vroomam, v. Griffiths, 4 Ct. App. Dec., 505; Merehcuni v. BrnmeTl, 3 id., 280.) If the capital is furnished by the wife, and her husband has no interest but that of a mere agent or servant, she is entitled to the profits. If there is no capital but the husband’s labor and the labor of his minor son, she cannot have the profits.

      Tbe property is tbe fruit of tbe labor of tbe husband and bis minor son. (Rider y. Hulse, 24 N. Y., 372 ; 33 Barb., 264; 42 id., 310; id., 569.) Tbe plaintiff was in tbe actual possession of tbe property at tbe time this action was commenced. To maintain replevin, tbe property must be taken out of tbe actual possession of tbe owner. (3 Wend., 280; 4 Comst., 183; 20 Johns., 465; 14 Wend., 201, 202.)
   Sawyer, J. :

There were no disputed questions of fact in this case to be submitted to tbe jury.

Tbe plaintiff’s title to tbe property in question was clearly established by tbe evidence. She leased tbe farm and paid tbe rent, and tbe property taken in execution was either purchased with her money or raised on tbe farm. True, her husband labored on tbe farm, and acted as her agent in disposing of its products, but tbis did not vest tbe title thereto in him, or give him any interest therein. The right of a married woman to purchase or lease real or personal property and to manage the same through an agent, though that' agent be her husband, and to hold to her own use tbe avails thereof, in cases free from fraud, was fully settled in Knapp v. Smith (27 N. Y., 277). In tbe case at bar there was no proof of fraudulent intent.

Tbe act of the sheriff in levying upon the property of Fenn G. Alvord for sale was such an exercise of dominion over it as would sustain an action for its conversion, or replevin, although there was no actual removal. (Stewart v. Wells, 6 Barb., 79, approved by tbe Court of Appeals in Knapp v. Smith, supra.)

Trover and replevin in such cases are concurrent remedies. (Allen v. Crary, 10 Wend., 349; Fonda v. Van Horne, 15 id., 631.)

It does not change tbe rule nor aid tbe defendants that the sheriff claimed to levy upon and advertised for sale the interest only of Fenn G. Alvord in the property, it appearing that he had no interest therein. (Neff v. Thompson, 8 Barb., 213.) There was sufficient evidence that tbe defendant Tower, authorized tbe proceedings to sustain the verdict as against him; be directed tbe sheriff to get the executions, consulted and advised with him and approved of bis levying upon the property. Slight interferences in such cases will sustain a verdict. (Knapp v. Smith, supra; Farrar v. Chauffetete 5 Denio, 527.)

Tbe exceptions must be overruled, and judgment ordered for tbe plaintiff upon tbe verdict.

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

New trial denied, and judgment ordered for plaintiff on verdict, witb costs.


author: Boardman, J.:

text:
    HORATIO SEYMOUR and others, Executors, etc., Appellants, v. ELIZABETH F. CAGGER, Administratrix, etc., Respondent.

      Services rendered by an attorney — effect on recovery for, of death of attorney during pendency of action — Negligence of attorney — burden of proof as to.

    The defendant’s intestate and the plaintiffs’ testator entered into an agreement whereby the former, an attorney, agreed to collect the rents due on certain manorial leases belonging to the latter, and to receive for such services the taxable costs of the actions to he brought; under which agreement some twenty or thirty actions were commenced. At the time of the death of defendant’s intestate, plaintiffs had been defeated in one action because of a failure to notify the tenant of an assignment of the lease, two actions had been discontinued and the costs paid, and seven were pending; to the two actions discontinued and the seven actions still pending, the same defense of neglect to give notice of the assignment of the lease had been interposed. Upon an accounting, the referee found that the amount of the taxable costs in said nine actions was $901.81, hut refused to allow that amount to the defendant. The court at Special Term held that as the notice was not properly a proceeding in the action, that the mere fact that the defendant’s intestate commenced the actiensfor the assignee of the lease, without ascertaining that the tenant had been notified of the assignment, was not sufficient to show that he was guilty of negligence or wanting in reasonable professional skill, and allowed to the defendant the $901.81.

      Held, that the defendant should be allowed that amount.
    Where a client refuses to pay an attorney’s hill on the ground that he had been defeated and damaged by reason of the negligence and want of skill of the attorney, such negligence or want of skill must he established by him affirmatively.
    A failure to succeed in a law suit is not prima facie evidence of negligence or want of proper skill.

      Appeal from an order of the Albany County Special Term, sustaining defendant’s exceptions to the report of a referee.
    This is a reference, under the statute (2 R. S., 88, 89, §§ 36, 37) of a claim made by the executors of John Magee, deceased, against the administratrix of Peter Cagger, deceased.
    The facts are, that, in 1861, Mr. John Magee was the owner of certain leases known as Yan Rensselaer manor leases; that Mr. Oagger agreed to act as the attorney of Mr. Magee, to collect the rents due on the leases, and to make the collections on the leases for the taxable costs; and that Mr. Magee was in no case to be personally liable for the costs of collection. Under this agreement, Mr. Cagger commenced twenty or thirty suits, on some of which collections were made, and some of which were settled, and some are still pending undetermined. Mr. Cagger was defeated in one of the cases, on the ground that the assignee had not notified the tenant of the assignment to him as required by 1 Revised Statutes (739 § 146). Mr. Cagger collected $2,218.09. The costs of the suits in which this sum was collected was $631.60, which was, by the referee, deducted from the amount of the collections, and judgment ordered for the balance, with interest, amounting to $2,523.30.
    Mr. Cagger died July 6, 1868. At the 'time of his death two suits had been discontinued and costs paid, and there were pending, undetermined, seven suits on these leases. The taxable costs in these nine suits were $901.80. These suits were commenced without giving the tenants notice under the Revised Statutes. At the trial of this reference they were still pending. The referee refused to deduct the taxable costs in these nine cases from the amount collected, and the defendant excepted to such refusal. The plaintiffs moved for judgment on the report, and the defendant made a case and exceptions, and brought them to a hearing at Special Term at the hearing of the motion to confirm the report. The court allowed to the defendant the $901.80, and modified the report accordingly, and from that order the plaintiffs appeal.

      William Rwns&y, for the appellants.
    The. exceptions are based upon the proposition that the death of Mr. Cagger, the attorney of Mr. Magee, rendered it impossible for him to perform the entire service he had contracted to do, by prosecuting the actions to final determination, and, therefore, the defendant, as his personal representative, was entitled to be credited for what services had been rendered by Mr. Cagger up to the time of his death. The rule of law is that: 1. One who, under a contract requiring his personal services, performs services valuable to the employer, but before the full performance of the service is disabled by death from completing the contract, is entitled to recover as upon a quantum meruñt for such services as he rendered. ( Wolfe v. Howes, 20 N. Y., 197, 203.) 2. The recovery in such a case cannot exceed the rate of the contract-price for the part of the service performed. (Gla/rlc, v. Gilbert, 26 N. Y., 279, 283.) 3. It is also essential that the employer should have received actual benefit from the services of his agent; and where the services are worthless, no compensation can be recovered for part performance. ( Wolfe v. Howes, 20 N. Y., 197,203; Clarice v. Gilbert, 32 Barb., 576; Fahy v. Worth, 19 id., 341.) The plaintiff insists that the services in the nine actions not finished at his death were worth absolutely nothing. If, to sustain the report of the referee, it is necessary to assume that he fouiid the fact that these services were of no value, the court will do it, if there is evidence to sustain such a finding. (Walsh v. Powers, 43 N. Y., 23, 27; MeKeon v. See, 4 Robt., 449,' affirmed 51 N. Y., 300.) The statute requiring the notice was one of long standing, and was peremptory in its requirements. Mr. Cagger should have known of it before he brought the actions. The notice not having been given, and the actions not being sustainable without it, there can be no possible benefit to Mr. Magee’s estate from the bringing of them. (Add. on Con., 612; Hv/ntley v. Bul/wer, 6 Bing. [N. C.], Ill; Long v. Orsi, 18 O. B., 610; Shear. & Redf. on Neg., § 221, and note.) When, from negligence, carelessness or inadvertence, the attorney’s services are of no benefit to his client, he is not entitled to compensation. (Add. on Con., 455 ; 1 Pars, on Con., 116; Hill v. Featherstonhcmgh, 7 Bing., 569 ; Braeey v. Carter, 12 Ad. & E. [N. S.], 373; Hu/ntley v. Bul/wer, supra; Hoppi/ng v. Qui/nn, 12 Wend., 517; Bowman v. Tallma/n, 40 How. Pr., 1; Pa/rlcer v. Bolls, 14 C. B., 691; Goodman v. Walker, 30 Ala., 482.)

      Samuel Hand, for the respondent.
   Boardman, J.:

This is an appeal from an order at Special Term modifying the report of a referee, confirming the same as so modified, and ordering judgment thereon. The mode of practice pursued in this instance is not the subject of review, since stipulations at the Special Term and upon the argument at General Term, waive all such objections and seek a review only upon the merits.

Was the learned judge at Special Term correct in modifying the referee’s report and allowing the defendant the taxable costs, $901.81, rejected by the referee ? The services were in fact rendered. That is conceded. It is also conceded that the $901.81, constitute the taxable costs in the actions brought, but not concluded by Cagger. It is in effect conceded that Cagger’s services in those actions were worth $901.81, if they were not in fact worthless. If the services were valuable to Magee, the defendant was entitled to have such value allowed her, notwithstanding the death of Cagger before complete performance. (Wolfe v. Howes, 20 N. Y., 197.) The amount to be allowed for such services would ordinarily be controlled by the terms of the contract. (Clark v. Gilbert, 26 N. Y., 279.) But cases may exist, where a failure to perform may result in such serious damage or loss as to prevent or reduce very greatly the recovery for services rendered. The plaintiff contends these services of Cagger were in fact worthless, and hence should not be allowed. The referee has not found either way upon this subject, but in his addenda to his report, says he has not taken into account the two actions settled without costs to either party, or the seven actions still pending. Now, I understand, from the stipulations of the parties, that the judge at Special Term took the place of the referee in deciding whether these costs ought to be allowed, and he has found, as appears by the order, that the $901.81 was the amount of costs and disbursement proved on the trial, and allowed the same to the defendant in the accounting. That is in effect finding that such services were valuable and of the value stated. The order and the opinion together, find that Cagger was guilty of no negligence or want of proper skill, which should prevent the recovery for these services. If that be correct the order of the Special Term should be confirmed. (Bowman v. Tallman, 40 How., 1.) The reasoning of the judge in his opinion is quite satisfactory. No negligence or want of skill was proved. That should have been established affirmatively by the plantiff. There is nothing to show what would have been the result of the seven cases pending. It does not appear that the notice to be given the tenants should have been given by the attorney, or that it was any part of his duty in the preparation or conduct of the actions. But if it were conceded that the failure to serve the notice was a fatal defect, it does not then follow that the defendant should not be allowed those costs. Failure of success in a law suit is not prima faeie evidence of negligence or want of proper skill. (Bowman v. Tallman, ante.)

I conclude, therefore, that the services were rendered by (Dagger; that the value of such services was $901.81; that the defendant is entitled to have such value allowed, because it is not shown that (Dagger wras guilty of negligence or want of proper skill in the conduct of such actions, and that it does not appeal’ that plaintiff or their testator has suffered any damage by reason of negligence or want of proper skill in Cagger.

The order of the Special Term is, therefore, affirmed, with ten dollars costs, and expenses of printing.

Sawyer, J., concurred. Learned, P. J., did not act.

Order affirmed, with ten dollars costs, and printing disbursements.


author:
      Learned, P. J.:
      Boaedman, J.

text:
    OLIVER PORTER, Appellant, v. AUGUSTUS W. KINGSBURY and CHARLES O. NEWTON, Respondents.

      Pendency of formes' action — -plea of — relates to time of commencement of suit in which it is interposed,.

    On July 7,1875, the plaintiff herein commenced an action against the defendants upon an undertaking given by them. A demurrer interposed by them was overruled at the Special Term, but sustained upon an appeal to the General Term; and on January 3, 1876, judgment was entered therein dismissing the complaint with costs. On February 17, 1876, this action was commenced by the same plaintiff against the same defendants upon the same cause of action. March 11, 1876, the plaintiff appealed, in the first action, from the decision of the General Term to the Court of Appeals, March seventeenth the defendants served an answer in this action, setting up as a defense that another action was pending between the same parties for the same cause of action.’'

      Held, that the plea referred to the time of the commencement of the action; that, at that time, the former action had been terminated by a final judgment upon the demurrer, and was no longer pending, and that the plea should, therefore, be overruled. (Boardman, J, dissenting.)

      Semble, that the defendant’s remedy was to apply for a stay of proceedings in this action, during the pendency of the appeal in the first.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court, without a jury.
    On the 7th of July, 1875, plaintiff Porter commenced an action upon an undertaking executed by the defendants Kingsbury and Newton, to recover the amount alleged to be due thereon. To that complaint defendants demurred on the grounds:
    I. That the complaint does not state facts .sufficient to constitute a cause of action.
    II. That the court has no jurisdiction of the persons of the defendants or the subject of the action.
    The issue of law, thus joined, was tried at the Cortland Special Term, September, 1875. The demurrer was overruled and defendants given leave to answer. Defendants appealed to the General Term from the order overruling the demurrer. At November term, 1875, the order of the Special Term overruling the demurrer was reversed, and the demurrer sustained, and the complaint dismissed with costs. (5 Hun, 597.) Judgment was entered dismissing the complaint with costs, January 8, 1876.
    February 17, 1876, this present action was commenced upon the same undertaking set forth in the complaint in the action commenced July 7, 1875. After the commencement of this present action, viz., March 11, 1876, Porter appealed to the Court of Appeals, in the first action, from the judgment entered January 3, 1876, dismissing the complaint with costs, and gave the undertaking provided for by section 334 of the Code. March 17, 1876, the defendants answered, in this present action, setting up: “ That there is another action pending between the same parties for the same cause of action as that stated in the complaint in this action” and that an appeal had been taken by the plaintiff therein.
    Upon the trial the court found among other things, as follows, viz: “ the subject-matter sought to be litigated in this action is the identical subject-matter being litigated in the aforesaid action between the same parties, commenced July 7, 1875, and now pending and undetermined in the Court of Appeals.”

      O. Porter, for the' appellant.
    The appeal brought March 11, 1876, is not good as a plea in abatement. An appeal from a final judgment at common law is the commencement of a new- suit and not the continuation of an old one. It. is so held in the following cases: Corml/y v. McIntosh (22 Barb., 271), Bice v. Floyd (1 Comst., 608), Enos v. Thomas (5 How., 361-366), Pratt v. Allen 19 How., 450-456). The appeal may be brought and prosecuted by a new attorney without substitution. (Pratt v. Allen, 19 How., 450-456; McLaren v. Charrier, 5 Paige, 530; Fernno v. Dickinson, 4 Henio, 84.) At the time this present action was commenced, a right of action had accrued against the defendants upon the undertaking, and that right of action is not divested by the appeal, taken after the commencement of this action, from the final judgment dismissing the complaint in a prior action, upon the ground that it did not state facts constituting a cause of action. (Bwrall v. Yanderbilt, 6 Abb., 70, 73; Bowman v. Cornell, 39 Barb., 69.) This defense arose after the action was commenced. (Curtis v. Cobb, 8 Johns., 470, 471; Lowry v. Lcmrence, 1 Caines R., 69-71; Jenkins v. Pepoon, 2 Johns. Cases, 312.)

      Waters & Knox, for the respondents.
    The subject-matter is identical, as both actions are founded upon the same undertaking to recover the same amount upon the same promise and against the same parties. The former action is pending while the appeal is pending. (4 Denio, 84; 7 Wend., 434; 21 id., 270; 25 N. Y., 485; 8 How., 140; 12 Abb., 247; 2 Duer, 611.) The pendency of another action between the same parties for the same cause is a defense, and the objection may be taken by demurrer if it appear on the face of the complaint (Code, § 144), and by answer if it do not appear on the face of the complaint. (Code, § 147; 16 Barb., 461; Gould’s PL, chap. 5, § 122, p. 283; 14 Ább. Pr. R., 206 ; 9 How., 228; 2 Duer, 611; 9 Paige, 296; 13 Barb., 183 ; 17 How., 69.)
   Learned, P. J.:

The plea of. another action pending, was an allegation that such other action was pending at the time when the action was commenced in which the plea was put in. So distinctly did the plea have reference to the time of the commencement of the action in which it was pleaded, that it was not nece'ssary to aver, that the former action was still pending at the time when the plea was pleaded, although it was customary to aver this. (1 Chitt. Pl., 454, note 2.) This matter was discussed at some length in Commonwealth v. Churchill (5 Mass., 174), where an old case is cited at length from the year books. And in the Massachusetts case it was held that where a defendant pleaded the pendency of a former action, and there was a replication that since the plea pleaded the plaintiff in the former action had become nonsuit, the replication was bad. The court say that it must appear that the first writ was pending when the second was purchased.

Now when this present action was commenced the former action had been terminated by a judgment for the defendant upon the demurrer. This was a final judgment, and the action was no longer pending. "When, therefore, this present action was commenced there was no other pending for the same cause.

It is true that after this action had been commenced the plaintiff appealed to the Court of Appeals from the judgment in the former action. And it may be asked, what was the remedy of the defendant ? It seems to me that he should have applied for a stay of proceedings in this action during the appeal in the former. In that case, if the former judgment should be affirmed (as we were informed on the argument that it had been), the present action could have proceeded. If it had been reversed, the court could have perpetually stayed proceedings in this present action.

But now the defendant has pleaded in bar the pendency of the former action, which was not pending when this action was commenced, and which (as above stated) is now finally disposed of, and the plaintiff is defeated both in this and in the former action, without having been heard on the merits.

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

Boaedman, J.

(dissenting):

If the Court of Appeals should sustain the decision of the Special Term in the former suit pleaded by the'defendants in this action, the plaintiff would recover upon the same instrument now sued upon and the same amount now claimed in this action. There is, therefore, no doubt of the identity of the causes of action in the two cases. If they were pending at the same time the first action may be alleged as a reason why the second action should not be sustained. (Code, §§ 144, 147.) Until the former action is finally disposed of the second one is improperly brought. In tbis instance the second action was brought after the General Term had sustained the defendants’ demurrer to the complaint in the first action on the ground that the complaint did not state a cause of action. If the case had stopped there no doubt the plaintiff could properly have brought this new action. But after bringing this new action the plaintiff appeals from the decision of the General Term to the Court of Appeals. By such conduct he is so situated that he may recover two judgments upon one cause of action. To prevent such a result the defendants necessarily interpose the former suit still pending by virtue of the plaintiff’s appeal to the Court of Appeals. It is not deemed of importance that the appeal was taken in the first action after the second action was begun. The alleged defense existed when the answer was put in, and was properly included therein. The plaintiff, by his own act, had rendered it not only proper but necessary that such defense should be interposed. The plaintiff should have continued the pursuit of his rights under the first action or, abandoning that, brought the present action. He had an election which course to pursue, but the law would not and ought not to tolerate both. If the second action can be permitted at all, the proceedings in it should have been stayed until the Court of Appeals had finally disposed of the former action. Neither party asked this upon the trial. Both, apparently, sought a trial of the issue. As the plaintiff did not ask that the action should stand over, nor the defendant ask for a stay until the decision of the Court of Appeals, nothing remained for the court but to try the issue. On the facts found (and they are conceded) it is difficult to see how the learned judge could find otherwise than he did. It is evident the same relief sought in this action might be afforded by the Court of Appeals in the former action, and that until the termination of the former action adversely to the plaintiff\ he ought not to be permitted to pursue to judgment another and different, remedy. These views are sustained, in my judgment, by the following cases: Fenno v. Dickinson (4 Den., 84), Nones v. Homer (12 Abb., 247), Traver v. Nichols (7 Wend., 434), Groshon v. Lyon (16 Barb., 461), Robinson v. Plimpton (25 N. Y., 484), Johnson v. Yeomans (8 How., 140).

It is believed the decision at Special Term is correct and the judgment should, therefore, be affirmed with costs.

Present — Learned, P. L, Boardman and Sawyer, JJ.

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


author: Learned, P. J.: Sawtee, J.

text:
    JANE W. BOCKES and others, Appellants, v. ELEANOR LANSING and others, Respondents.

      Action in equity to remove a cloud on tide — when not maintainable — Bemedy by

    The plaintiff herein claimed that one George Webster, the owner of a house and lot described in the complaint herein, on September 26, 1846, made a general assignment of all his property, including the house and lot in question, to one Russell, who, on May 6, 1847, conveyed the same to Simeon D. Webster; that thereafter, and on July 6,1859, the said George and Eleanor, his wife, conveyed the said premises to the said Simeon D.; that the plaintiff had succeeded to the rights of the said Simeon D.; that on April 18, 1861, a receiver, appointed in supplementary proceedings instituted by a judgment creditor of George Webster, sold the said land to one Humphrey, through whom the defendants, who are in possession thereof, claim title.
    This action was brought to have the receiver’s deed set aside as irregular, and canceled, and for an accounting as to the rents and profits received by the defendants. Held, that the facts of the case would not sustain an action in equity, such as the present one, to set aside the deed as a cloud upon plaintiff’s title; but that the plaintiff’s remedy, if any, was by ejectment.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.

      On September 23, 1846, George "Webster, tbe owner of tbe house and lot described in tbe complaint, executed to David Eussell a general assignment of all bis property for tbe benefit of bis creditors. On tbe 6th of May, 1847, David Eussell, tbe assignee, conveyed tbe premises to Simeon D. "Webster, a son of George "Webster, by deed executed that day and recorded June 12, 1847.
    At tbe time of tbe assignment George "Webster was indebted, among others, to Joseph S. Keeler, who, on tbe 19th of October, 1846, recovered judgment in tbe Supreme Court thereupon for $1,057.07. This judgment was assigned to David H. Humphrey, on February 21, 1861, for fifty-five dollars, paid by him, and Humphrey instituted supplementary proceedings thereupon, which resulted in tbe appointment of a receiver, to whom George assigned all bis property, and on tbe 18th of April, 1861, the receiver was duly authorized to sell tbe premises in question at public or private sale, with or without notice, and did convey tbe same to said David H. Humphrey on tbe 25th of April, 1861, at private sale and without notice, for tbe consideration of $2,000, and on tbe 30th of April, 1861, Humphrey conveyed tbe same for fifty-five dollars to Eleanor, tbe widow of George "Webster, both deeds being recorded May 4, 1861.
    Eleanor "Webster died in possession of tbe premises and tbe personal property, July 26, 1872, and tbe defendants own her interest in tbe premises, while tbe plaintiffs represent Simeon D. Webster’s interest therein. Tbe plaintiff also claimed title by virtue of a deed executed by George "Webster and Eleanor, bis wife, dated July 6, 1859. The referee held, however, that such deed was only valid to transfer tbe dower right of tbe wife.
    Tbe plaintiffs claimed that tbe proceedings instituted in 1861, which resulted in tbe appointment of tbe receiver, were irregular for tbe reason that tbe lien of tbe Keeler judgment bad expired as to Simeon D. "Webster, a purchaser in good faith, at tbe time tbe proceedings were instituted, and prayed “ that the said order of tbe Supreme Court authorizing tbe said receiver, as such, to sell and convey tbe said premises; tbe sale and conveyance thereof to tbe said Humphreys, and tbe conveyance thereof by tbe said Humphreys to tbe said defendant may, by tbe judgment of this honorable court, be adjudged a fraudulent and inequitable cloud upon tbe title of said plaintiffs to said premises; that the same may be ordered to be
      canceled of record, and declared null and void, and of no force or effect; that the said defendant may be perpetually enjoined from using the same or the record thereof for any purpose or under any pretense whatever; and that in the meantime the said defendant may be restrained from selling, incumbering or disposing of the said premises, or any interest therein, or leasing the same, or any part thereof, till the further order of the court; and that an account may be taken, by and under the direction of this honorable court, of the mesne profits of said premises since the termination of the tenancy at will therein of the said defendant, and that the said defendant may be adjudged to pay the same to the said plaintiffs, and that the said defendant may be compelled to release to the said plaintiffs all or any right or title she may have obtained to said premises by or under the fraudulent, collusive and inequitable proceedings had as aforesaid, and pay to said plaintiffs their costs in this behalf, or that such other or such further relief in the premises maybe granted as shall seem meet to this honorable court.”
    The referee held as matters of law that the assignment was void on its face; that Simeon Webster was not a purchaser in good faith; that the lien of Keeler’s judgment had not expired because Simeon was not a purchaser in good faith; that the receiver in supplementary proceedings was not bound to bring an action to set aside the assignment, because there had never been any change of possession and because the assignment was void on its face; that if the receiver’s title was imperfect, the jolaintiffs’ was no better, and defendant being in possession would continue to hold it; that if the proceedings on the Keeler judgment were irregular, still this action cannot be maintained because such proceedings would constitute no cloud on plaintiffs’ title; that such proceedings were regular and gave title, and that plaintiffs have no cause of action.

      James Gibson, for the apjrellants.

      Jamies Lansing, for the respondents.
   Learned, P. J.:

The plaintiffs, successor’s to the title of Simeon D. Webster, claim to own the land in fee by virtue of conveyances from George Webster. Tbe defendants, wbo are in possession, claim title by virtue of supplementary proceedings against George Webster and in favor of a creditor of his, taken subsequently to tbe time of tbe execution of tbe conveyances under wbicb tbe plaintiffs claim.

This is a case then, as it seems to me, where tbe plaintiffs’ remedy was by ejectment. But tbe present action is brought in equity to set aside tbe proceedings supplementary and tbe conveyance by tbe receiver and bis grantee under tbe same, through wbicb tbe defendants claim, as a cloud on tbe plaintiffs’ title, etc., and for an accounting of tbe rents and profits, etc. I do not think that this action can be maintained. Whether the judgment under wbicb these proceedings were taken bad, or bad not, ceased to be a lien, was a matter for George Webster to litigate; not for tbe plaintiffs. Tbe plaintiffs (and Simeon D.) claimed adversely to George ; and they bad no right (nor bad Simeon D.) to notice of proceedings which were to have tbe effect solely of transferring to some creditor whatever property George Webster then bad.

If tbe plaintiffs’ title was good, it was of no consequence to them, or to Simeon D., what proceedings should be taken against George. If their title was not good, then they and Simeon D. bad no interest in tbe matter of tbe proceedings. And if tbe plaintiffs urge, that while George could not dispute their title, as void against bis creditors, yet that bis creditors might, tbe reply is that, if tbe plaintiffs have a good title they can recover in ejectment. If not, they should not recover in any action.

It may be said that all tbe facts appear in this case, and therefore that tbe court should give relief, without regard to tbe form of tbe pleadings. But that remedial rule is not to be carried to this extent. A plaintiff is not to sue on a promissory note and recover for an assault and battery. The action of ejectment is distinct. It is for tbe recovery of tbe possession of land and thus for establishing tbe title. Tbe present action is solely an action in equity, such as might be maintained, in a proper case, by a party in possession to remove a cloud.

Tbe plaintiffs may urge that George Webster continued in possession as tenant of Simeon D., and that hence tbe defendants are to be deemed tenants of tbe plaintiffs. That does not alter tbe case. Tbe defendants are bolding, or claiming to bold, adversely; and the plaintiffs should dispossess them by suit or by some proper proceeding.

I do not mean to express any opinion whatever as to the validity of the assignment, or as to the title which Simeon D. obtained by the conveyance from Russell, or by the direct conveyance from George or upon the merits in any particular. And in the view above taken it is unnecessary to examine any questions as to the admission of evidence or the conclusions of fact. The judgment should be affirmed with costs; but this must be without prejudice to any action of ejectment, should such action be brought by the plaintiffs.

Sawtee, J.

(dissenting):

Without attempting to pass upon all of the numerous questions raised by this appeal, it is apparent that there must be a new trial for errors in the court below in the reception and rejection of evidence.

All of the parties to this action claim under George Webster as the common source of title; the plaintiffs under deeds executed by him; the defendants through Eleanor Webster, who claims under a receiver’s deed in proceedings supplemental to execution upon a judgment against George Webster, her husband. Both George and Eleanor Webster at the time of the trial were dead.

On the trial the plaintiffs offered in evidence a deed from George Webster and Eleanor Webster, dated April 30, 1859, to Simeon D. Webster, through whom plaintiffs claim as a part of their chain of title. This was objected to and the referee held it inadmissible under the pleadings, except to show a release of Eleanor’s inchoate right of dower, and confined its force and effect to that alone.

In the complaint the plaintiffs allege that the judgment under which defendants claim, had ceased to be a lien upon any real estate of. the said George Webster as against David Russell, a purchaser and grantee of George Webster, “ and as against Simeon D. Webster, a purchaser from the said David Russell, and also from the said George, by deed executed April 30, 1859, in good faith.”

These allegations we think amply sufficient to require the reception of the deed in evidence for all purposes, and that the limitation imposed and acted upon by the learned referee was error.

Again, the defendants called as a witness David H. Humphries, the grantee of the receiver, in the deed executed by him, and the grantor in the deed to Eleanor Webster, and under which conveyances the defendants claim title to the premises, in hostility to plaintiffs’ title, and offered tó prove by the witness communications made to him by George Webster in his life-time, tending materially to affect injuriously plaintiffs’ title and strengthen the defendants’. This evidence was objected to by the plaintiffs’ counsel, on the ground that the witness was incompetent under section 399 of the Code. The objection was overruled and the evidence received. Under the construction given to this section of the Code by the Court of Appeals, in Mattoon v. Young (45 N. Y., 696), and by this court, in Richardson v. Warner (13 Hun, ante, p. 13), the witness was clearly incompetent and his evidence inadmissible; he had owned and transferred the very title under which the defendants claim.

The findings of the referee show that this evidence must have materially affected his decision, and without passing upon the other questions raised, I am of the opinion that the judgment should be reversed, the reference discharged, and a new trial ordered, costs to abide the event.

Present- — -Learned, P. J., Boardman and Sawyer, JJ.

Judgment affirmed, with costs.