text:
    DAVID HALEY, Respondent, v. WILLIAM H. WHEELER, Appellant.
    Jb’espass— possession — Justice's Court — ■title to land — when not in question — effect of judgment in ejectment.

    Although, as a general rule, trespass quare clausum fregit can only he maintained by one in actual possession of the premises when the injury is committed, yet in the case of a disseisin the disseisee, after he has regained possession, may maintain the action against the disseisor for acts intermediate the disseisin and re-entry.
    Wheeler brought an action of ejectment against Haley, and, having recovered judgment therein, entered into possession of the premises ; subsequently this judgment was set aside, and upon the new trial Haley recovered a judgment, whereupon possession of the premises was surrendered to him by Wheeler. In an action of trespass quare clausum fregit by Haley to recover for acts committed by Wheeler while in possession under the first judgment, held, that he was entitled to recover. Held, further, that in such action the title to land did not come in question so as to deprive a justice of the peace of jurisdiction thereof, as the final judgment in the ejectment suit conclusively established that the title was in Haley as against Wheeler.
    Appeal from a judgment of the County Court of Cattaraugus county in favor of the plaintiff, entered upon the verdict of a jury.

      Ansley c& Vreeland, for the appellant.

      A. Storrs, for the respondent.
   Taloott, J.:

This is an action of trespass. The complaint is in form for a trespass vi et armis quare elausum fregit. The suit was originally commenced before a justice of the peace. Before the justice a judgment was rendered for the defendant, on a verdict of no cause of action. The plaintiff appealed to the County Court of Cattarau-gus, where the jury rendered a verdict in his favor for fifty-three dollars, and judgment was entered for that sum. A motion was made in the County Court for a new trial, which was denied, and thereupon the defendant brought this appeal. The answer of the defendant was, that he went into possession of the land in the complaint described, under and by virtue of a judgment in the defendant’s favor and against the plaintiff, awarding the possession of the premises to the defendant.

On the trial a record of judgment in an action of ejectment was introduced, commenced by Wheeler the now defendant, against Haley the present plaintiff, from which it appeared that Wheeler first obtained judgment in the action of ejectment. On.this judgment Wheeler was put into possession of the premises on which the alleged trespass was committed. This judgment was afterward vacated and set aside, and after various proceedings in the action a new trial was had, and Haley finally recovered judgment on the merits for a restoration of the premises, and dismissing the complaint in the action of ejectment, whereupon Wheeler gave up the possession to Haley. This judgment was afterward set aside and a new trial granted, whereupon Haley again recovered judgment, dismissing the complaint and for a restoration of the premises, and a writ of possession was issued on this last judgment, whereupon Haley, then being in the actual possession by the voluntary surrender of Wheeler, was put into formal possession by the sheriff under the writ of possession. The trespasses complained of were for mowing and -cutting the grass, rye and corn of the plaintiff and gathering the fruit, during the time that Wheeler was in possession of the premises under the first recovery. The defendant moved for a nonsuit, on the ground that no cause of action was shown by the plaintiff, and on the ground that title to land came in question. The cause of action was sufficiently made out. The first recovery in ejectment, being set aside and vacated,’became of no force and effect from the beginning. The general proposition that an action of trespass guare elatcsum fregit can be sustained only by the person who has the actual possession when the injury was committed is doubtless correct. But in the case of a disseisin the disseisee, after he has regained possession by re-entry, may maintain trespass against the disseisor for acts intermediate the disseisin and re-entry. For this doctrine the case of Dewey v. Osborn (4 Cow., 329) is a very distinct authority. The title did not come in question so as to oust the justice of jurisdiction. The recovery of the final judgment in favor of Haley against Wheeler was conclusive of the title between these parties, and, as between them, the defendant could not question the title. (Leland v. Tousey, 6 Hill, 328; Van Alstine v. McCarty, 51 Barb., 326.)

The judgment of the County Court and the order denying a new trial are affirmed.

Present- — -MulliN, P. J., SMith and Taloott, JJ.

Judgment of County Court and order denying a new trial affirmed.


source: Caselaw Access Project

author: E. DaewiN Ssiith, J.:

license: Public Domain

text:
    THE VILLAGE OF SENECA FALLS, Plaintiff, v. MICHAEL I. G. ZALINSKI, Defendant.

      Obstruction of streets — License from corporation, when presumed — Injury to traveler — liability of party causing — hound by judgment against corpoi'ation.

    The fact that a party constructing a building deposits materials therefor in the street and keeps them there during the erection of the building, with the full knowledge of the trustees and superintendent of the village, is sufficient to imply a consent on the part of the village authority to such use of the street.
    It does hot create a nuisance to deposit such materials in the street, if they are properly guarded.
    Where a party is authorized by the corporate authority to deposit building materials in a public street, it is his duty to see that proper guards or lights are erected and maintained during the night so that travelers may not be exposed to injury thereby.
    The corporation may maintain an action against such person, to recover the amount of a judgment which it has been compelled to pay, to one who was injured in consequence of his failure to erect and maintain proper guards or lights by such obstructions.
    Where he has been notified of the pendency of an action against the corporation, the judgment recovered thereon is conclusive against him so far as relates to the cause of action, the amount of damages-, and the other matters necessarily involved therein.
    MotioN for a new trial on exceptions ordered to be beard in the first instance at the General Term, after an order nonsuiting the plaintiff.
    The action was brought to recover the amount of a judgment which the plaintiff had been compelled to pay to one Benrath, for injuries sustained by him on account of obstructions placed by the defendant in Fall street, in the village of Seneca Falls. The obstructions consisted of building materials, deposited in the street by the defendant, while engaged in erecting buildings upon the adjoining lots, which were owned by him. Benrath was injured by running against the same on a dark night, there being at the time no light or guard in the neighborhood of the materials. Notice was given to the defendant in this action of the suit commenced against the village by Benrath, in which the judgment was recovered.

      P. H. Van AuJcen, for the plaintiff.
    The rule is well settled, that where a party is injured by reason of any obstructions or defects in a public street, placed, made or continued by any person, and the municipal corporation is compelled to pay the damage sustained by the party injured, the corporation has a remedy over against the person so making or continuing such obstructions or defects for the amount so paid. (Wilson v. City of Watertown, 3 Hun, 514; City of Ohioago v. Bobbins, 2 Black., 418 ; Inhabitants of Woburn v. Renshaw, 101 Mass., 193 ; Inhabitants of Stoughton v. Porter, 13 Allen, 191; Inhabitants of Milford v. Rolbrooh, 9 id., 18 ; City of Lowell v. B. and L. R. R. Corp., 23 Pick., 24; City of Lowell v. Spaulding, 4 Cush., 277.) The record of the judgment in the action of Benrath against the village was competent evidence against the defendant, and conclusively showed that the obstructions placed or continued in the street by the defendant rendered the street unsafe and dangerous for the use of the public; that the plaintiff in that action was not chargeable with any contributory negligence precluding his right of recovery, and of the amount that the plaintiff was entitled to recover of the defendant. (Mayor, eto., of Troy v. The Troy and Lansingburgh R. R. Go., 49 N. Y., 657; City of Boston v. Worthington, 10 Gray, 496.)

      Miller c& Rardley, for the defendant.
    If the village licensed the defendant to place the obstruction in the street, it cannot recover. A license is a perfect defense. (Walter v. Post, 6 Duer, 363; Miller v. A. cmd S. R. R. Go., 6 Hill, 61.) Having given the license, the village is m pari delicto with the defendant, and for that reason cannot recover. It can have neither indemnity nor contribution. (Gitry of Brooklyn v.
      Brooklyn Oily R. JR., 47 N. Y., 486, 487; Shearman & Bedfield on Neg., § 419, p. 476, and cases cited; Boston v. Worthington, 10 Gray, 496; Wendell v. Troy, 39 Barb., 329.) Having given license, the village must protect itself by a contract. (City of Brooklyn v. Brooklyn City JR. B., 47 N. Y., 475; Troy v. Troy and L. JR. R. Go., 49 id., 657; 2 Dillon on Mimic. Corp., § 582.) Jf the village did not license the defendant it could not recover, because it was the duty of the village authorities themselves to remove the obstructions and abate the nuisance. (Charter of Seneca Falls, Laws of 1865, chap. 543, §§ 18, 19; Thompson on Highways, 76; Wendell v. Troy, 39 Barb., 329.) Asa corporation may be compelled to pay damages caused by the negligent manner in which persons occupy or use streets with building material, it may impose reasonable conditions on those who wish thus to occupy the streets; for example, require them by ordinance to give bonds of indemnity. It would seem it must protect itself thus. And the village has power to pass an ordinance regulating these matters. (2 Dillon on Munic. Corp., §§ 582, 583, 584.) Having done that, it can only enforce the ordinance. (Flynn v. Gambon Go., 40 Md., 312; Kirby v. Boylston Market Ass., 14 • Gray, 249; Vandyke v. Cincinnati and JBJarberon, 1 Disney, 532; Admr. of Ghambers v. Ohio Life and Trust Go., id., 327; 13 Alb. Law Jour., 321.)
   E. DaewiN Ssiith, J.:

Under the evidence given at the trial the jury would have been warranted in finding, and I think bound to find, that the obstructions placed in the street by the “defendant were by or under a license from the authorities of the village.

The defendant testified that he and a Mr. Disky, who was building adjacent to him, went together to the office of the president of the village and asked for the privilege to unload the materials in the street for the buildings they proposed to erect, and he said “ yes; it is all right; you can do so.” Mr. Disky testified to the same interview and conversation. But aside from this evidence, the fact that the defendant and said Disky did in fact deposit the materials used in erecting their said buildings in the street, and kept them there more or less through the whole summer of 1872, while engaged in erecting said buildings, with the full knowledge of the trustees and superintendent of said village, was sufficient evidence upon which to imply a consent on the part of the village authorities to such use of the street.

Such license relieved the defendant from a liability to indictment or other prosecution for obstructing said street, but could not be considered as authorizing him to- erect and maintain a nuisance therein.

It was not a nuisance to deposit such materials in the street, provided they were properly guarded, so that persons traveling said street were exposed to no unnecessary obstacles to the free passage thereof, or to any unreasonable peril.

Municipal corporations are bound to keep their streets in a safe condition for travel, and are liable to respond in damages to any person receiving a special injury from their neglect of this duty. Where streets in a city or village are used, as in this case, for the deposit of materials by the adjoining proprietor for building purposes, or dug up for the construction of sewers, the laying of water or gas pipes, or for other improvements by the corporation or by the adjoining owner, the corporation is bound to see to it that proper guards, or lights by night, be erected and maintained around such excavations or obstructions, so that travelers be not exposed to injury. (Storrs v. The City of Utica, 17 N. Y., 104.)

The obstructions in this case, put in the street by the defendant, were not thus guarded in the night, when Benrath received the injury for which he recovered in an action against the plaintiff. That recovery was therefore apparently proper. The license which the defendant received from the plaintiff to place such obstruction in the street, did not, as above stated, entitle him to create a nuisance in such street. The nuisance which gave a ground of action was the omission to place and maintain guards, or lights, around such deposits by night. It was the duty, I think, of the defendant to place such guards, or lights, around the obstructions by him placed in said street. He took the leave or license from the plaintiff to use the street for his private benefit, upon the implied agreement on his part that the city should be protected by him against loss or damages by reason of the obstructions to be by him so placed in said street.

He impliedly undertook that be would erect no nuisance in the street; that he would so guard the obstructions tobe placed by him thereon that no injury should ensue to or be suffered by any one traveling such street. This doctrine is asserted in the case of The City of Chicago v. Robbins (2 Black [U. S.], 418), which case is quite parallel with this.

In that case Bobbins was the owner of a lot on one of the public streets of the city, and excavated in the sidewalk, next to and adjoining his lot, an area of considerable length and breadth, and suffered the same to remain uncovered and unguarded so that, in the night, a person passing along said street, fell into it and was injured; for which injury he sued the city, and recovered a judgment for $15,000 and costs, which was paid by the city; and the city then sued Bobbins to recover the amount thus paid.

On the trial, evidence was given to show that the city authorities knew of the excavation of the area, and others similar, and interposed no objection to the same, though no express permission to make this one was given.

It was held, that though the city was liable to the party injured for the damages sustained by him, the corporation had a remedy over against the party that was in fault and.had so used the street as to produce the injury, and that the defendant Bobbins having had notice of the pendency of the suit, was concluded by the judgment.

In the opinion of Justice Davis, who gave the opinion of the court, he said : “ Without an express permission from the city, but under an implied license, he (the defendant) makes the area; no license can be presumed from the city to leave the area open even for a single night. The privilege extended to Bobbins was for 1ns benefit alone, and the city derived no advantage 'from it except incidentally. Bobbins impliedly agreed with the city that if he was permitted to dig the area for his own benefit, he would do it in such a manner as to save the public from danger and the city from harm.”

This case was retried and came back for review to the Supreme Court, where it is again considered and reported with the title reversed — Robbins v. The City of Chicago — in 4 Wallace, 657, where the same doctrine is reasserted.

This same doctrine is also asserted in Stoughton v. Porter (13 Allen, 191); Boston v. Worthington (10 Gray, 496); Lowell v. B. and L. R. R. Co. (23 Pick., 24), and Woburn v. Henshaw (101 Mass., 193), which cases, as -well as the above case of Robbins v. City of Chicago, as Judge Folgee stated in The City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y., 481), were recognized and approved in The Mayor, etc., of Troy v. The Troy and C. R. R. Co., decided in April, 1872 (Ot. of Appeals).

The case referred to by Judge Folgee is reported in the memo-randa at the end of volume 49 New York, 657.

In the case of The City of Brooklyn v. The Brooklyn R. R. Co. the case was put upon the ground of an express contract which existed in the case; and in the case of The Mayor of Troy v. Troy and C. R. R. Co. the brief report of the case states that the railroad company accepted a license to lay its track upon and through certain streets, upon condition that it should keep the same in repair.

The question whether a contract, not to commit any nuisance to the injury of the public or the municipal corporation, will be implied from the acceptance of a license to use a street for the private benefit of the party asking for and receiving such license was not distinctly decided, but I cannot see how the court could have recognized and approved the principles asserted in the case of the City of Chicago v. Robbins, and the other cases above mentioned, upon any other ground. The notice to the defendant of the commencement of the suit against the plaintiff by Bennett, was clearly sufficient to charge the defendant in this action with the duty to defend said action, and to make the judgment conclusive against him within the same cases, so far as relates to the cause of action and the amount of damages and the matters necessarily included in the adjudication. The question whether the plaintiff in that action was injured by obstructions put in the street by the defendant or some other party, was a question for the jury. ¡

The nonsuit, we think, was erroneously granted, and the motion for a new trial should be granted, with costs to abide the event.

Present — Mullin', P. J., Smith and Talcott, JJ.

New trial granted, with costs to abide event.


author: E. Darwin Shith, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JEPTHA W. BABCOCK and others, Respondents, v. JOHN T. MURRAY, THOMAS CLEMENT and OLIVER C. WRIGHT, Appellants.

      Quo wm'ranio — Commissioners of excise — Several persons, claiming to constitute a board, united as relators.

    In an action "by the people on the relation of three persons, claiming to constitute a board of excise, against three others whom they allege have usurped the said office, it is not necessary to allege or prove that any one of the relators is entitled to the office occupied or claimed by any one of the defendants; the object of such action is to determine which set of -persons lawfully compose or is entitled to compo e the board of excise.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This is an action of qxto warranto, the relators alleging that they had been duly appointed commissioners of excise of the city of Loekport, and that the defendants have unlawfully usurped the same. The action has already been before the General Term, the decision being reported in 12 S. 0. N. Y. (5 Hun), at page 42.

      Geo. 0. Greene, for the appellants.
    Holmes, Fitts de Chisman, for the respondent.
   E. Darwin Shith, J.:

W hen this case was before us on a former occasion, we held that the relators were legally appointed commissioners of excise, etc., and see no reason for reconsidering that question. The decision then made appears to have been properly followed at the circuit on the retrial of the cause, and we must affirm the judgment there rendered unless there are some new questions not previously considered, which require us to come to another conclusion. (Vide S. G, 12 S. 0. N. Y. [5 Hun], 42.)

At the close of the plaintiffs’ case, it appears that a motion for a nonsuit was made, among others; upon the ground that it is not alleged or proved that either plaintiff is entitled to the office occupied or claimed by any. one of the defendants. That no one of the relators claims, specifically, the office of either defendant. That several claimants of several and distinct offices cannot unite in, and maintain an action as plaintiffs against several other claimants of such several distinct offices. The motion for a nonsuit was denied, and the point thus presented for the first time in the progress of the cause, that several causes of action had been improperly united, was overruled, upon the ground that the question not having been raised by demurrer or answer was therefore waived, under sections 144, 147 and 148 of the Code.

If the nonsuit were not properly denied so far as relates to this point, upon the ground stated by the Circuit judge, I think it was not a valid objection, upon the merits, to the proceeding in the action, upon the other ground that the action was in behalf of the people to try the title of the three relators to the office claimed and occupied by the defendants, each set composing or claiming the legal right to compose a board of excise for said city of Lock-port.

The argument of the defendants’ counsel, that neither of the relators was appointed in the place of any one of the defendants, shows that the judgment asked by the relators was a proper judgment in their favor, against all three of the defendants together, as usurping the said office as members of such board of excise.

The relators were all appointed in the same manner to compose a board of excise. Neither of them was appointed in the place of either of the defendants, and there could not for that reason have been a separate judgment for either relator, as against either of the defendants. The action was therefore properly brought in the name of the people, in behalf of the three relators, against the three defendants, to determine which set of these persons claiming title to the said office lawfully composed, or were entitled to compose a board of excise for said city.

The statute (chap. 175, Sess. Laws, 1870) directs the appointment of three persons at the same time, as a board of commissioners of excise, for each of the cities and villages of the State, to hold for three years. The term begins and ends at the same time, except in the case of a vacancy, and the officer in such case would hold till the end of the term only,

The principle asserted in the case of The People v. Jones (17 Wend., 81), and reaffirmed in the Matter of the Union Insurance Co. (22 id., 600), sustains the view that the office of the defendants all expired together, and that neither of them had any right to act as commissioner of excise after the appointment of the relators.

We think the proper judgment was rendered at the Circuit, and that the same should be affirmed.

Present — Mullin, P. J. Smith and Taloott, JJ.

Judgment affirmed with costs.


author: E. DaewiN Smith, J.:

text:
    JOHN BORDEAUX, Respondent, v. THE ERIE RAILWAY COMPANY, Appellant.

      The Mie Railway Company — no obligation to keep open its ticket offices — Vrn'e— payment of, at office or to conductor’ — different rates.

    Under section 14 of chapter 224 of 1832, authorizing the Frie Kailway Company “ to fix, regulate and receive the tolls and charges by them to be received for the transportation of property or persons,” it may establish two rates of fare, discriminating between the cases where the ticket is purchased of a conductor upon a train, and where it is purchased at a ticket office.
    The company is not bound to keep its ticket offices open at or for any particular time, and the fact that a passenger is unable to procure a ticket in consequence of the office being shut, will not entitle him to be carried to his place of destination upon payment of the amount for which he could have procured a ticket at the office had it been open.
    Appeal from a judgment of tbe County Court of Cattaraugus county in favor of the plaintiff.
    The action was brought to recover damages occasioned by the ejection of the plaintiff from the defendant’s cars, upon his refusal to pay the fare demanded of him by the conductor.
    The plaintiff, on the 5th day of July, 1874, was in Olean wishing to go to Salamanca. The defendant’s road connects these places, and the defendant has a depot and ticket office at Olean. The train was due at the depot in Clean about half-past nine p. m. The plaintiff' got to the depot from ten to fifteen minutes before the train started. The ticket office was then closed, but the sitting room was open, Rlaintiff went on the train for a few moments, then went back to the ticket office; there was no one there, and he could not get a ticket. He then went on the platform, heard the conductor say all aboard, and got aboard. The conductor wanted his ticket. He told him he had none; that he had gone to the office three times and could not get a ticket. The plaintiff offered him sixty cents, which he would not accept, and asked plaintiff to pay him eighty cents, and told him if he did not pay eighty cents he would put him off the train. The distance is about twenty miles. The conductor informed the plaintiff that his orders were to take eighty cents, and that unless that amount was paid he should put the plaintiff off; and he did accordingly remove him from the train.

      E. O. Sprague, for the appellant.

      Ansley dh Vreeland, for the respondent.
   E. DaewiN Smith, J.:

The defendant acquired its corporate rights under special acts of the legislature. (Vide Session Laws of 1832, chap. 224, p. 402, and id., 1860, chap. 160, p. 255.) Under section 14 of the act of 1832 the defendants were authorized to fix, regulate and receive the tolls and charges by them to be received for the transportation of property or persons ” on their railroad. The defendants, accordingly, had fixed two rates of fare on their said railroad, between the villages of Olean and Salamanca ; one rate of eighty cents, with a rebate of fifteen cents at the end of the route when the fare was paid to the conductor on the train ; and another rate of sixty cents when the fare was paid in the purchase of a ticket at any of their offices for the sale of tickets.

The defendants had a clear right to fix two rates of fare, discriminating between the case where the fare was paid to their conductors on their trains, and where it was paid at a collection office for the sale of tickets. (1 Redfield on Railways, 112, §§ 26, 28 ; Hilliard v. Goold, 34 N. Hamp., 230; State v. Goold, 53 Maine, 279 ; Stephen v. Smith, 29 Vermont, 160.)

In some of the cases where the question of this discrimination between fares paid in the purchase of tickets and fares paid to the conductors of trains has beeh considered, its lawfulness was held to depend upon the question whether the passenger who was required to pay the higher fare to the conductor, had been unable to procure a ticket at a ticket office, without fault or neglect on his part.

The rule is asserted in this way in the case of Jeffersonville R. r. v. Bogers (38 Indiana, 116 ; 10 Am. Rep., 103).

In that case the plaintiff applied at the proper office to purchase a ticket from Indianapolis to Columbus, and was informed by the ticket agent that he had no ticket to Columbus. The court held that the plaintiff was entitled to ride upon the ticket fare, upon the payment or tender of that sum to the conductor. The same rule was asserted in The Chicago, Burlington and Quincy Railroad v. Park (18 Illinois, 460), and perhaps in some other cases in that State.

In these cases the question is not discussed upon principle ; and I can hardly conceive upon what principle they rest. The decisions may be correct under particular statutes in those States, or under the particular mode or terms in which the fares may have been fixed or established

The rule asserted in these cases is, in ■ substance, that applied in this State, under express legislation, in respect to the New York Central Railroad Company, as asserted in Porter v. said company (34 Barb., 353); Nellis v. Same (30 N. Y., 505); Chase v. Same (26 id., 523). These cases were all actions for a penalty given by statute for taking illegal fares. The legal fare fixed by the statute for said railroad company is two cents a mile. A special statute allowed said company to require the payment of five cents in addition to such fare, of any passenger who entered the cars without first having purchased a ticket for that purpose, at any station where a ticket office is established and open; and said statute required the said company should keep the said office open at least one hour prior to the departure of each passenger train from such station. (Vide Laws of 1857, chap. 228, p. 488.) But there is no such statute relating to the Erie Railway; and the charge of five cents, required where the fare is paid to the conductor, is not an enhancement of the legal fare, but is' within the limit of such fare. On the contrary, the price of tickets sold at the office, is an abatement of the legal fare as fixed where the payment is made on the cars. It is rather a privilege of the passenger, and an inducement to him to purchase his ticket at some office of the company before taking his seat in the cars, instead of paying his fare to the conductor on the train. (State v. Goold, 53 Maine, 282.)

The plaintiff in this action went to the defendant’s depot-on Sunday night about nine o’clock, to take the train to Salamanca, and found the ticket office closed, as he testified. He failed, for that reason, to get a ticket, and got on to the train, and when asked for his fare refused to pay the fare fixed for passengers paying the conductor on the train, and claimed to pay the ticket price of sixty cents. Upon what principle could he claim to fix the price he should pay for his passage ? The conductor’s duty was to charge him the price fixed, eighty cents, with the rebate of fifteen. He had no ticket. The conductor was bound to exact the fare fixed for such cases; he could not take less than sixty-five cents without disobedience of his instructions and without a relinquishment of part of the legal fare.

How can the plaintiff base a claim to dictate the fare he should pay, upon his failure to find the ticket office of the defendants open when he wished to purchase a ticket? The defendant was under no legal duty to have their office open at that time, or any other particular time; they had made no contract with the plaintiff to do so. They had offered to carry him, in legal effect, from Olean to Salamanca for sixty-five cents, paid to their conductor, with the privilege to him to purchase a ticket at any of the offices, when open, for sixty cents, for such transportation. They open their offices at their own discretion and for their own convenience and interest, and cannot be compelled to open them or keep them open otherwise, -except by act of the legislature.

The courts cannot say when, or for how long a time they shall open such offices each day or otherwise.

If the plaintiff failed for any cause to procure a ticket, he had no right to get into the defendant’s cars, except upon the implied engagement on his part to pay the fare fixed for, and required of passengers without tickets.

The case is within the rule-and principles asserted in the able opinion of the court, in the case of Crocker v. The New London and Palmer R. R. Co. (24 Conn., 249).

In that case, as in this, it appeared that the plaintiff went to the defendant’s office, where tickets were usually sold, and found it closed, and that he then got into defendant’s cars and claimed to ride to the place of his destination for fifty cents, the price of the tickets between the places stated when sold at the ticket-office, but • the conductor required him to pay fifty-five cents, the rate of fare when it was paid to the conductor upon the train, which he refused to do, and suffered himself to be expelled from the cars for his refusal to pay such fare. It was held by the court that the defendants were under no legal obligation to furnish tickets or carry a passenger between the place of his starting and of his 'destination for less than fifty-five cents. That the plaintiff’s claim to such passage rested entirely upon the assumed engagement of the defend-, ants to furnish tickets, or to carry passengers for less than fifty-five cents each. That such regulation of the defendant was not a contract creating a legal debt or duty, but a mere proposal which might be withdrawn or suspended at pleasure. That such proposal was withdrawn by closing defendants’ office and the retirement of their agent therefrom, and that that proposal being thus withdrawn, the defendants remained liable as common carriers to carry the plaintiff for fifty-five cents only, and that the plaintiff having refused to pay such fare was properly removed from the cars. This case was precisely like the one at bar, and the logic of the decision of the court appears to me to be unanswerable.

The plaintiff, rather than pay the small sum of five cents which was required of him by the conductor of the train in the clear discharge of his duty, preferred to invite and procure his expulsion from the cars, and the loss and inconvenience thereby consequently involved, in order to lay the basis of an action against the defendants in the assertion of a principle of very small consequence to himself.

He has had the luxury of his lawsuit also, and as it not unfre-quently happens to such martyrs to principle, he is destined, I fear, tp be disappointed in his hope of receiving the martyr’s reward.

The judgment should be reversed, with costs.

Present — MulliN, P. J., Smith and Talcott, JJ.

Judgment reversed.


author: E. DaRwin Smith, J.:

text:
    CHARLES PARDEE, Respondent, v. BYRON A. WOOD, Appellant.

      Accord and satisfaction — what constitutes.

    Plaintiff being tbe owner of two promissory notes for $2,000, made by tbe defendant, commenced an action tbereon, and also commenced an action against the wife of tbe defendant. Subsequently tbe plaintiff received from tbe defendant $1,500 on tbe notes and twenty-five dollars for costs and gave to defendant and wife a receipt “in full of notes, agreements or claims of all kinds against these parties,” it being understood that “ this transaction finishes all suits or litigation against said parties and all suits are hereby discontinued,” defendant agreeing to make no claim for certain machinery, then held by the plaintiff as collateral to an indebtedness from one Weed. Held, that this was an accord and satisfaction, and that the plaintiff could not maintain an action to recover the balance due upon the notes.
    Appeal from an order denying a motion for a new trial, made upon the minutes of tbe justice before whom the action was tried, after a verdict in favor of the plaintiff.
    The action was brought to recover the amount due upon two promissory notes given by the defendant. The plaintiff had previously commenced an action against the defendant to recover the amount due upon these notes ($2,000), and had also commenced an action against the defendant’s wife, Clementine M. Wood. During the pendency of these actions a settlement was effected, by which the plaintiff received $1,500 in full of all claims and demands and twenty-five dollars for the costs of the actions then commenced, and delivered the following receipt to the defendant:
    “Received, Skaneateles, July 15, 1872, from Clementine M. Wood and Byron A. Wood fifteen hundred dollars, and twenty-five dollars for costs, and if the costs can be settled for a less sum than twenty-five dollars, balance to be given back, and the fifteen hundred dollars is in full of notes, agreements or claims of all kinds against these parties, and against the estate of A. Wood & Son, in bankruptcy, and it is understood no claim is to be made for any machinery in the factory unless H. Weed pays his indebtedness to me, as per agreement of same.

      “ It is further understood and agreed this transaction finishes all suits or litigation against said parties of C. M. "Wood, B. A. Wood' and A. Wood & Son’s estate, and all suits are hereby discontinued.
    “0. PARDEE.”
    This action was subsequently brought to recover the balance unpaid upon the notes.

      D. Pratt, for the appellant.
    In order to avoid the effect of the settlement as an accord and satisfaction, it was incumbent upon the plaintiff to show that the payment of the $1,500 was made by defendant upon a liquidated and admitted indebtedness, and that such payment was'the only benefit which he received in the transaction. There must be no dispute as to the amount due. (Pal-merton v. Htixford, 4 Den., 166 ; Pierce v. Pierce, 25 Barb., 247 ; Longridge v. Dormlle, 5 B. & Aid., 117; Tuttle v. Tuttle, 12 IVIetc., 551.) If-the creditor receives any thing in addition to part payment in satisfaction of the whole liability, which in judgment of law may be deemed a benefit to him, it is a good accord and satisfaction. (Douglass v. 'White, 3 Barb. Oh., 621 \ Hinckley v. Arey, 27 Me., 362.) As if a part be paid and received in full satisfaction before the whole is due. (Broolcs v. White, 2 Met-c., 283; Goodnow v. Smith, 18 Pick., 414.) ‘ Or in a way more beneficial to the creditors than that prescribed by the contract. (Sibree v. Trypjy, 14 M. & M., 23.)

      Geo. Barrows, for the respondent.
   E. DaRwin Smith, J.:

It is undoubtedly true that an agreement to accept part of an admitted debt in satisfaction of the whole, or the payment of a less sum after a specific debt is due, in satisfaction of such debt, is not sufficient to discharge the debtor from the payment of the residue without a release. But this doctrine will not, I think, sustain the ruling at the Circuit, that the receipt given in evidence by the defendant, dated July, 15, 1872, was not valid and effectual as an accord and satisfaction of the plaintiff’s debts and claims against the defendant.

At the time when that receipt was given, the plaintiff had commenced an action against the defendant, and also one against his wife, and such suits were then pending. By the terms of the receipt, these suits were both discontinued, and twenty-five dollars included in said receipt was advanced by the said defendants to pay the costs in such suits. The receipt acknowledges the payment of $1,500, in full, of notes, agreements, or claims of all kinds against the said parties, and that it was understood that the transaction finished all suits or litigation against said parties of C. ]\f. Wood, B. A. Wood and A. Wood and son’s estate. And, also, it states that it is understood, that no claim is to be made for any machinery in the factory unless H. Weed pays his indebtedness to plaintiff, as per agreement of same.

This receipt, I think, upon its face, implies that it was given upon a settlement and compromise of all suits and disputes, and was designed to be a full and final settlement of all controversies, causes of action and litigation between the parties. It includes, upon its face, a relinquishment of all claims on the part of the defendants in the said suits, then discontinued, of all claims to be made by them for any machinery in the factory” therein referred to, in addition to the payment of the $1,500. This was a distinct consideration, and was sufficient to sustain the receipt as a final accord and satisfaction-of all matters in controversy between the parties.

In Douglass v. White (3 Barb. Ch., 624), the chancellor said: That “ if a debtor, in addition to the agreement to pay part of the debt, gives the creditor any thing which, in judgment of law, can be considered a benefit, and the creditor accepts it as a satisfaction of the whole liability, it is a good accord and satisfaction.

In Boyd & Suydam v. Hitchcock (20 Johns., 76), three promissory notes were given by a debtor for part of his debt, with an indorsee, which were accepted in satisfaction of the debt. The court held that here was a beneficial interest acquired, ánd a valuable consideration received by the plaintiff, and that it was a valid discharge on the ground of accord and satisfaction. To the same effect are the cases of Kellogg v. Richards (14 Wend., 116); Frisbie v. Lamed (21 id., 450); Howard v. Norton (65 Barb., 167).

The receipt, we think, was a perfect accord and satisfaction of plaintiff’s claims, and was so intended, anda complete defense to the action.

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

Present — Mullin, P. J., Shxth and Talcott, JJ.

Order reversed and new trial granted, with costs to abide event.


text:
    STEPHEN BASTABLE, Respondent, v. CITY OF SYRACUSE, Appellant.

      Oity — construction of streets — surface water — collection of into one st/recm.

    Although no action can he maintained for the diversion from its ordinary course of the surface water arising from rains and melting snow, yet if such water he collected into a single channel and cast in a large volume upon the land of an adjacent owner, he may maintain an action to recover the damages sustained thereby.
    In pursuance of an ordinance hy the common council of the defendant, a street was constructed in the city of Syracuse, whereby the surface water from a large area, which had formerly flowed through no well defined channels over the adjoining low lands, was collected into a single stream and thrown upon the land of the plaintiff. Held, that he was entitled to maintain an action to recover the damages sustained thereby.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action was brought to recover damages sustained by the plaintiff, by reason of the wrongful diversion of surface water by the defendant in grading certain streets and making other improvements in the city of Syracuse, whereby such water was conducted to and turned upon certain premises of the plaintiff.

      Hiseock, Gifford & Doheny, for the appellants.
    Liability for damages cannot result from the exercise of judicial functions, and especially this judicial authority in the ease of street commissioners and city authorities has been ruled upon, and so thoroughly fixed in the law of England and of the United States that it would seem there ought to be no question in the present ease. (Wilson v. Mayor, etc., 1 Den., 595; Mills v. Oity of Brooklyn, 32 N. Y., 489;
      Radclif’s Em's. v. Mayor, 4 id., 195; 16 Miss., 255; Kavanaugh v. Gity of Brooklyn, 38 Barb., 235 ; Clark v. Gity of Wilmington, 5 JETar., 243; White v. Yazoo, 27 Miss., 357; King v. Gomr. of Sewers, 8 Barn. & Cress., 355 ; Parks v. Gity of Newburyport, 10 Gray [Mass.], 28 ; Smith v. Gity of Washington, 20 How. [TJ. S.], 135 ; Dillon on Mimic. Corp., § 798.) City officers, by virtue of the authority conferred by charter, lay out and grade a system of streets and adjust sewers and gutters as their judgment dictates is best for the general public. The interests of the individual give way to the public good, and whatever injury he receives is damnum absque injuria. (Wilson v. Mayor, 1 Den., 595; Mills v. Brooklyn, 32 N. Y., 489; 16 Miss., 255 ;• Kavanaugh v. Brooklyn, 38 Barb., 234; Govrs., ete., v. Plate Glass Co., Term. Hep., 794; King v. Gom. of Sewers, 8 Barn. & Cress., 355.) As between individuals there is no liability against one who so fills up or grades his own land as to cause surface drainage to run upon his neighbor’s land. (Goodale v. Tuttle, 29 N. Y., 466, 467; Astley v. Walcott, 11 Cush., 193; Blither v.Wihnshume Co., 9 id., 171; 10 Gray, 28; 13 id., 601.) The same rule especially applies as between an individual and a city. (Dickinson v. Gity of Worcester [Mass.], 7 Allen, 22; Gray v. Maine Gen. R. R., 53 Me., 201; Adams v. Walker, 34 Conn., 467; Parks v. Gity of Newburyport, 10 Gray, 28; Wagner v. L. I. R. R. Co., 5 N. Y. Sup. Ct. Rep., 164, and reporter’s note at the end of the opinion of Talcott, J.; Dillon on Munic. Corp., § 798.)

      Geo. K. Oollins, for the respondent.
    The defendant was not called upon to provide means for taking charge of this surface water, nor was it liable in damages for results necessarily following from laying out and grading its streets; yet, having diverted this surface water, and undertaken to carry it away in new channels, or permitted its streets and gutters to accommodate this water in its progress to disburse itself, it was the duty of the defendant, having-destroyed the usual channels for such water to run in, to have fully provided for all water that might naturally be expected to be diverted into or flow in its streets and gutters, and to have prevented the same from flowing upon the plaintiff, where it had never been before. (Wood’s Law of Nuisance, §§ 378, 393, 397, 399, and p. 401; Bellows v. Sackett, 15 Barb., 101, 102; Moran v. MoOlearns, 63 id., 185, 196 ; Booh. White Lead Works v. Gity of Rochester, 3 N. Y., 463; Foot v. Bronson, 4 Bans., 47, 50, 51, 52; Waffle v. N. Y. O. R. R. Go., 58 Barb., 413, 422, 423; . 10 Alb. L. Jour., 401, 403 ; Kauffman v. Greesman, 26 Penn., 407, 409, 414, 415 ; Martin v. Riddle [note to above], id., 416 ; Miller v. Lubach, 47 id., 154, 155.) The defendant as a municipal corporation has no greater exemption from liability than a private person. (Moran v. Mo Gleams, 63 Barb., 196; Rochester White Lead Works v. City of Rochester, 3 N. Y., 463, 465.) The defendant in this case was also guilty of negligence and unskillfulness in the construction of its streets and gutters, and is liable for negligence, and for the failure to exercise yorojper skill in the construction of the same. (Olemence v. Gity of Auburn, 4 Hun, 386, 388 ; Gonrad v. Trustees, etc., Ithaca, 16 N. Y., 158, 171, 172, 173; Barton v. Gity of Syracuse, 37 Barb., 292, 295; McCa/rthy v. Gity of Syracuse, 46 N. Y., 194, T96 ; 10 Alb. Law Jour., 403.)
   E. DaewiN Smith, J.:

In the charter of the city of Syracuse, the mayor and common council of the said city are made and constituted commissioners of highways, and are empowered “ to lay out, make, open, regulate, repair and improve highways, streets, lanes, alleys, bridges, public grounds, sidewalks, and alter, widen, straighten and discontinue the same when they shall deem proper, subject to the provisions of law.”

The common council of said city had undoubted power to provide for the opening, grading and improving of University avenue, and the adoption of an ordinance for this purpose was a legitimate exercise of its legislative discretion and powers.

No right of action can arise out of such ordinances, unless the council exceeded their powers, or the agents of the city intrusted with the duty of carrying them into effect were guilty of some misconduct, negligence or uuskillfulness.

The power to fix the grade of streets and avenues, and prescribing the manner of improving them, in cities, includes, necessarily, the power to change the surface of the ground, to raise it when it is lower than the proposed grade, and cut it down where it is higher, and thus effect and change, more or less, the natural flow of the surplus drainage of the land affected. It is well settled that this consequence, though it may cause some apparent injury to adjacent property owners upon the street improved, gives no right of action, but is simply “ damnum absque injuria / ” and that no one had such an interest in mere surface water as to interfere with the public convenience and welfare in this connection. (Wilson v. Mayor of N. Y., 1 Den., 597; Mills v. City of Brooklyn, 32 N. Y., 496; Flagg v. City of Worcester, 13 Gray, 601; Kavanagh v. City of Brooklyn, 38 Barb., 234; Dillon on Munic. Corp., §§ 782, 783.) But while no one has any interest in the ordinary flow of surface water, arising from rains and melting snow, which will sustain an action for its diversion, yet it becomes a very different question whether the collection of such surface water into a single channel, and casting it in a large volume upon an adjacent owner, may not give a ground of action.

In submitting the case to the jury, the learned Circuit judge said to them, that if the evidence led them to believe there was an interference with the natural course of the water, and interference with the surface water, so as to cast unusual quantities of it upon the land of the plaintiff; if they were satisfied, in the next place, that the defendant authorized these acts, authorized this interference, then it is liable, because it entered upon that very act which produced it.”

The judge further charged, in response to a request of the defendant’s counsel, “ that there must have been negligence in the construction, in the making of the gutter, or the making of the street, in the way the work was done, to entitle the plaintiff to recover.”

The counsel for the plaintiff also excepted to what the judge had said in his charge, “ that when the city set about doing this work, they must see to it that they .do not interfere with the rights of adjoining owners.” The judge said, in response, that “that is to be done with the precipitation of surface water.” The exception to the charge upon this branch of it is, in substance, an exception upon the single question submitted to the jury in respect to the unusual flow of water cast upon plaintiff’s land.

It appears, in the evidence in this cause, that in the improvement of University avenue, in connection with other streets crossing the same, the surface drainage of about thirty-two acres of land, which previously had flowed off to the low lands in no particular channel, was diverted and collected into said avenue, and flowed off, in and over the same, with a descent quite rapid, from the high land above at the head of the street, for much of the distance through said street, till 'it finally ran over- the sidewalks of the same in a large volume on to the plaintiff’s land, causing him much injury. I cannot think the plaintiff is bound to submit to such injury, and has no redress for the damage sustained.

As between two owners of adjacent lands, one could not construct ditches or drains on his own land, thereby collecting the surface water over a large territory, and cause such water to flow in a single chan^i upon the adjoining owner, without responsibility for the damages thereby occasioned. This was so held in this department in Foot v. Bronson (4 Lans., 47); and also in Dickinson v. City of Worcester (7 Allen, 22); Livingston v. McDonald (21 Iowa, 160); Bents v. Armstrong (8 Watts & Ser., 40). The case of Mills v. The City of Brooklyn decided nothing in conflict with this view. It decides nothing more than that an action cannot be maintained against a municipal corporation, for its omissions to legislate upon a subject within its power. It was there held that such action could not be maintained against such corporation for not providing sufficient sewerage for every or any part of the city. The same omission to construct a sewer adjacent to plaintiff’s lot to carry off the surface water that collected thereon, together with a complaint that the defendant had raised the grade of the street adjacent to her premises, were the grounds of action set up in the case of Wilson v. The Mayor of New Work (1 Den., 596); and, also, in Kavanagh v. The City of Brooklyn (supra), the city had raised the grade of a street adjacent to the plaintiff’s house, leaving the house below the grade of the street, where it had been erected upon a lower grade previously fixed.

The mayor and common eouncilmen of the defendant are simply commissioners of highways with enlarged powers. In determining to make any city improvement, in opening, grading or paving streets, laying curbs or gutter-stones, sidewalks, etc., they act under the authority of their charter, and exercise a large discretion. Dor their acts the city is responsible, precisely as the highway commissioners of towns are responsible for their acts and neglects. The corporation is liable for the positive misfeasance, and for the negligence of its officers, public agents and servants, or persons acting under its authority, while particular officers, doubtless, in most cases, would be exenqjt from any personal responsibility. It is in respect to this class of acts and duties, and this immunity on the part of the individual aldermen of a city or trustee of a village who may vote for resolutions or ordinances, directing or authorizing public improvements, that judges sometimes speak of the acts and duties as judicial, and deny responsibility on that ground. In Mills v. Brooklyn (supra), Judge DeNio well said such duties were not judicial, for it did not concern the administration of justice, but did say that it was of a judicial nature because it required the same qualities of judgment and deliberation. I think, with more accuracy and precision, it might be said that such duties were of a legislative character, involving the exercise of discretion and judgment, and a regard to many governmental or prudential considerations. The duties of all public officers involve and require, more or less, the exercise of discretion and judgment. It is a confounding of terms to call the exercise of discretion and judgment in such case judicial.

If a municipal corporation directs, by vote, resolution or ordinance, an illegal act or thing to be done, the party who proceeds to do the unlawful thing will, ordinarily, be a trespasser, and the corporation responsible for his acts. So if the administrative officer of a municipal corporation is guilty of negligence in the discharge of duties intrusted to him, the corporation will be liable for his neglects. (Dillon on Munic. Corp., § 189.) In this view, the defendant was properly held, at the Circuit, responsible for the neglect of its officer, in omitting to remove the large accumulation of filth from the street and gutter where it had been deposited by the water flowing down University avenue and overflowing the sidewalks, if its superintendent of streets or other officers had knowledge of such accumulation and failed to act with proper dispatch. It is upon this ground that this same city was held responsible for the neglect of its officers to properly construct and keep in repair its sewers in Barton v. Syracuse (37 Barb., 293), and in McCarthy v. Syracuse (46 N. Y., 194); and for tbe unskillful and negligent construction of a sewer the city of Rochester was held responsible for the damages resulting therefrom in the Rochester White Lead Co. v. City of Rochester (3 N. Y., 464); and for unskillfulness and negligence in the construction of a sidewalk the city of Auburn was held liable in Clemence v. Auburn (11 S. C. N. Y. [4 Hun], 386).

Upon both grounds upon which the cause was given to the jury I think the charge was substantially correct, and the exceptions thereto not well taken, and that the judgment should be affirmed.

Present — Mullot, P. J., Smith and Talcott, JJ.

Judgment affirmed.


author: E. DaewiN SMith, J.:

text:
    MARION B. P. WILSON, Respondent, v. CYRUS B. LAWRENCE, Interpleaded, etc., Appellant.
    Int&iplead&r— Code, % 122 — supplemental complaint.

    Where upon the application of the defendant an order is made, in pursuance of section 122 of the Code, directing that he pay into court the money, to recover which the action is brought, and that a third person, by whom the same is claimed, he substituted as defendant in his place, the plaintiff should apply for leave to serve a supplemental complaint setting forth such additional facts, as may be necessary to show that he has a right to recover the amount claimed as against the defendant.
    If tbe plaintiff fail so to do, and proceed to trial upon the original complaint, the substituted defendant may move to dismiss the same, on the ground that as to him it does not state facts sufficient to constitute a cause of action.
    In an action by a widow to recover the amount of a policy issued to her upon the life of her husband, which has, prior to his death, been assigned to the defendant upon his paying to her the sum of $2,000, a court of equity will not decree the restitution of such policy to her and the cancellation of the assignment, without requiring her to restore the money so received by her. (Per Smith, J.)
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a j ury.

      The action was originally brought against the Connecticut Mutual JLife Insurance Company to recover $2,500, the amount of a policy of life insurance upon the life of John Gr. Wilson, who was husband of respondent.
    After action was brought an order was granted by this court, at a Special Term thereof, upon the application of the insurance company, substituting Cyrus B. Lawrence as defendant in place of said insurance company, and that the insurance company be released from all further liability upon paying the clerk of Ontario county the money payable upon said policy. No notice of the application for said order was given to said Lawrence.
    Lawrence served an answer, claiming that respondent had, on the 2d day of April, 1873, assigned the policy of insurance to him, and that he was the owner and holder of the policy.
    The cause was heard on the same complaint as originally served.
    No summons was ever served on Lawrence, but a copy of the order granted on the 27th day of March, 1876, with the complaint of plaintiff, was served on Lawrence, and he answered by his attorney.
    The plaintiff claimed to recover on the complaint and the admissions in Lawrence’s answer, and was allowed to prove on the trial, against the objection of appellant, the said order of March 27, 1876, and also that the insurance company had paid the money on the policy into court.
    The court denied appellant’s motion to dismiss plaintiff’s complaint, on the ground that the complaint did not state a cause of action against Lawrence, and that the court had never acquired jurisdiction over the subject-matter of the action.
    The policy in question bears date the 9th day of October, 1868, upon the. life of John Gr. Wilson, husband of plaintiff, and by it the said life insurance bompany agreed to pay $2,500 to the plaintiff, her executors, administrators or assigns on the death of said John G-. Wilson. The death of Wilson was admitted, and the company, by paying money into court, admitted its liability on the policy in question.
    It appears by the policy itself, and also by admissions on the trial, that the.premiums on the policy were paid by plaintiff herself.
    On the trial the appellant offered in evidence an assignment of tbe said policy, bearing date tbe 2d day of April, 1873. Tbe assignment was executed by the said Marion B. P. Wilson, and was also signed by her husband and duly acknowledged before a notary public, and Mrs. Wilson acknowledged that she executed tbe same “ without- any fear or compulsion of her husband,” The consideration of the assignment was $2,000, and the assignment covered the policy in question, “together with all sum or sums of money, interest, principal and advantage whatsoever, now due, or hereafter to arise, or to be had or made by virtue thereof.”
    The appellant also proved that he had been in possession of the policy and said assignment, since the date of the said assignment.
    The court decided that plaintiff was entitled to judgment, awarding to her the money in the hands of the clerk of Ontario county, and that she have judgment for costs against Lawrence.

      Henry M. Field, for the appellant.

      Robert P. Willson, for the respondent.
   E. DaewiN SMith, J.:

The provision in section 122 of the Code that “A defendant against whom an action is pending upon a contract or for specific real or personal property may, at any time before answer, upon affidavit that a person not a party to the action and without collusion with him makes against him a demand for the same debt or property, upon due notice to such person and the'adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct, and the court may, in its discretion, make the order,” was designed to give a new remedy as a substitute for and concurrent with a bill of interpleader in equity. (McKay v. Draper, 27 N. Y., 256 ; Patterson v. Perry, 14 Howard, 505.)

As the Code prescribes no mode of proceeding under this section, the practice under it should be, I think, as far as practicable, that adopted by the courts of equity in eases of interpleader in analogous cases,

The order made at Special Term allowing the original defendant, the Connecticut Mutual Life Insurance Company, to pay into court the amount due on the policy of insurance referred to in the plaintiff’s complaint, and that Cyrus B. Lawrence be substituted as defendant in the action in the place of the said insurance company, and that such insurance company be discharged from liability to either party, and that the said Cyrus B. Lawrence appear and defend the action within twenty days after service upon him of a copy of said order and a copy of the complaint, or that the plaintiff might apply to the court for the sums so deposited, was equivalent, I think, in effect, to the order usually made upon bills of interpleader after both parties had appeared and answered, adjudging that the plaintiff in such bill be paid his costs, and upon depositing the money in dispute with the clerk, be dismissed from the further prosecution of the action, and that the defendants inter-plead, settle and adjust their claims and demands in respect to such fund as between themselves.

The said order having been granted exporte, so far as relates to the said Cyrus B. Lawrence, was irregular and void as against him, but this irregularity was, however, waived by his appearance and answer in the suit. Such appearance should be deemed to admit that the said order was properly granted, to the same effect as a defendant in a suit of interpleader would admit by not contesting it, that the bill was properly filed as above stated.

The court having clearly jurisdiction of the subject-matter of such action, such appearahce by the said Lawrence was also a submission of his person to the jurisdiction of the court, and he is therefore properly to be regarded as the defendant in said action.

Notwithstanding such appearance and submission to the jurisdiction of the court, the defendant Lawrence was not debarred the right to raise at the trial the question that the plaintiff’s complaint did not state any cause of action against him, and that, admitting every-fact therein stated to be true, no judgment could be obtained in the action against him. This objection was clearly well taken, and the motion to dismiss said complaint was erroneously overruled.

The complaint set out a cause of action against the Commercial Mutual Life Insurance Company ; it contains no allegations relating to the defendant, or which he was called upon to answer or deny. The order aforesaid was also improperly received in evidence. It was not directed or adapted to prove any issue in the action. Causes must be tried at the Circuit upon the pleadings, and no evidence is admissible not directed to prove some issue made by the pleadings, and no judgment can be rendered for the plaintiff not based upon proper allegations of the complaint.

After the making of the said order of substitution, the Connecticut Insurance Company was dismissed from the action, and the same was to proceed against the defendant Lawrence, to reach the fund deposited with the clerk. The plaintiff should have obtained an order of the court, as suggested in Moak’s Yan Sant-voord’s Pleadings (p. 358), under section 177 of the Code, allowing him to make a supplemental complaint alleging the facts occurring after the commencement of said action, the making of the order of substitution and the dismissal of the insurance company as a defendant and the substitution of Lawrence in its place, and the deposit of the amount due upon the policy of insurance with the clerk, with such other appropriate allegations in relation to the defendant, as said plaintiff would be required to prove to maintain the action for the restoring to her the policy of insurance and the revocation or rescission of the assignment of said policy to him.

The defendant was entitled to have a complaint served upon him containing proper allegations relating to him or his claims, which he might controvert in his answer.

Of this right the defendant was not, and could not be deprived by the order of the court — certainly not by an ex-parte order. He was entitled to have his rights presented, contested and asserted in appropriate pleadings.

The judgment upon the findings of the learned judge, I am inclined to think, also, upon the merits, independently of these considerations, was erroneous. He finds that the said policy of insurance was assigned and transferred by the said plaintiff to the defendant Lawrence, the consideration therein, having been received by the plaintiff and her husband, being $2,000, and that thereupon the said policy was delivered to said Lawrence. I cannot think this court should decree the restitution of said policy to the plaintiff and the invalidity and cancellation of said assignment thus made for a present consideration, paid in band to the plaintiff, without requiring her to account for and restore the said sum of $2,000 so received.

This proceeding is of an equitable nature, and the fund in court should be distributed or paid out upon equitable principles. No judgment, I think, should have been rendered for the plaintiff which directed any thing more than that the excess over $2,000 and interest to be paid from the fund in court to the plaintiff This view is upon the assumption that, as the plaintiff before the assignment of said policy was the absolute owner of the same, as her separate estate, 'she must have received such money to her own use. She cannot be allowed, as I conceive, to keep this money so received by her from the defendant, and also to take the full amount arising from this policy from the fund in court. This would be too gross a fraud for this court to sanction.

The judgment should, therefore, be reversed and a new trial granted; and I think the plaintiff may be allowed, without further ap2ilication to the court, to make a supplemental or amended complaint, as above suggested, and serve the same upon the defendant within twenty days after the entry of the order upon this decision, upon payment of the costs of the appeal; and the costs, otherwise, to abide the event of the decision.

Present — Muluin, P. J., Smith and Taloott, JJ.

Judgment reversed and new trial granted, with leave to plaintiff to inaké and serve a supplemental complaint within twenty days after entry of the order of within decision, on payment of the costs of the appeal, otherwise costs to abide event.


author: E. Darwin Smith, J.:

text:
    JOHN McCAIG, Respondent, v. THE ERIE RAILWAY COMPANY, Appellant.

      Baib’oad company —fire occasioned by spcvrJcs — Negligence —• bwrden of proof.

    The mere fact that a Are is occasioned by sparks emitted from the smoke-stacks of locomotives used by a railroad company does not, of itself, establish negligence on its part, nor would it be sufficient to authorize a jury to infer negligence, unless the emission of the sparks was unusual in degree or character, or the sparks were of an extraordinary size and such as would not he emitted from' perfectly constructed locomotives.
    In a case not within such exception, the burden of proving that the railroad company did not exercise due precaution rests on the plaintiff.
    Upon the trial of an action to recover damages sustained by a fire started by sparks from a locomotive owned by the defendant, the judge charged the jury ‘ ‘ if all the evidence satisfied them that there had been negligence on the part of the defendants, although they might not be able to satisfy themselves in what that negligence consisted, they would be authorized to find a verdict for the plaintiff.” NeM, that this was error; that if the jury could not find in the evidence any rational ground upon which to impute negligence to the defendant, they should give a verdict in their favor. ,
    Appeal from an order of tbe County Court of Steuben county, denying a new trial on a motion made on a case and exceptions.
    The action was brought to recover for damages caused by fire, alleged to have been set by sparks from defendant’s locomotives.

      E. F. Babooclc, for the appellants.

      J. W. <& H. J. JDinninny, for the respondent.
   E. Darwin Smith, J.:

It cannot be doubted that the fire which caused the injury of which the plaintiff complains was caused by sparks, proceeding from one or more of the three locomotives of the defendants which passed the plaintiff’s premises immediately before such fire. But the defendants are clearly not responsible for such injury unless such fire was caused by some negligence on their part, or that of their servants or agents in charge of such trains. And the fact that such fire was caused, as must have been the case, from sparks emitted from some one of the defendants’ locomotives, did not necessarily imply negligence on their part. (Collins v. N. Y. C. and H. R. R. R. Co., 12 S. C. N. Y. [5 Hun], 504; Sheldon v. Hudson R. R. R. Co., 29 Barb., 227; 4 Kern., 224; Field v. N. Y. C. R. R. Co., 32 N. Y., 350.)

Negligence in such cases cannot be presumed from the use of fire in propelling their engines by the defendants, for this use was lawful, and duly authorized by the legislature. Nor can it be presumed from the fact that a fii'e occurred doing damage, but such negligence must be clearly proved affirmatively, (Whart. on Neg., §§ 869, 870, 872; Sher. & Red. on Neg., § 12.)

When the plaintiff rested at the trial, he had proved simply the' fact of the fire, and the mode of its origin from sparks, and the damages sustained. He had proved affirmatively no improper act, or the omission of any duty or fact involving any negligence on the part of the defendants or their servants. The judge said, in his charge to the jury, that the “ plaintiff had given no direct evidence of any omission or negligence of defendants, and had left it entirely with them to establish the negligence of which he complains, by the circumstances.”

The fire in question occurred on the plaintiff’s premises, situate adjacent to the defendants’ railroad, between the villages of Addison and Hornellsville, in the county of Steuben. The trains referred to were three extra freight trains going west, following each other between those places, three-fourths of a mile apart. The defendants proved, by their officers, engineers and other servants, that the locomotives upon these trains were all first-class engines, with the most approved kind of spark-arresters, all in good order at the time of the fire; and that they were all inspected on their arrival at Hornellsville, some twenty miles west of plaintiff’s premises, on the day in question, and that the stack, netting and grates were all found in good order.

In respect to the class of evidence given by the defendants, the judge charged that they were to take that evidence into consideration and give to it such weight as it was entitled to; and, also, that “ now the burden of proof is changed from the plaintiff to the defendants. It rests upon them to satisfy you that they did exercise due precaution. If you are convinced that such was the case, you will be justified in finding a verdict for the defendants.” This portion of the charge was duly excepted to by the defendants’ counsel.

The judge also charged the jury that if they were satisfied that there had been negligence on the part of the defendants, although they might not be able to satisfy themselves in what the negligence consisted, they were authorized to find a verdict for the plaintiff. This portion of the charge was also duly excepted to. The defendants’ counsel also excepted to the refusal of the court to nonsuit the plaintiffj upon motion for that purpose duly made at the close of the plaintiff’s evidence.

In overruling the motion for a nonsuit, the judge, at the trial, must have held, in effect, that the fire having been occasioned by sparks thrown from one of the defendants’ engines, the jury might infer or presume negligence from such fact. In his charge to the jury afterwards, he states that it was not pretended to show what particular negligence was the cause of the fire, but, from the distance at which the fire was caught, it was sought to be shown that it was thrown from the smoke stack, and carried by the wind to some distance. If this were so, it seems to me the evidence was not sufficient to warrant a verdict for the plaintiff, without further proof showing that such emission of sparks was unusual in degree or character, or the sparks were of an extraordinary size, and such as would not be emitted from perfectly constructed locomotives. (Rood v. N. Y. and E. R. R. Co., 18 Barb., 80.) But the motion for a nonsuit being overruled, the defendants’ evidence was properly given and directed to repel such presumption or inference of negligence, arising from such emission of sparks.

The evidence given by the. defendants tended to show, and I think did show quite conclusively, that the said engines were properly constructed, and had the best and most approved apparatus to prevent the emission of fire or sparks. It was error, therefore, to hold, in respect to such evidence, that the burden of proof was upon the defendants. The defendants did not seek to establish any affirmative issue, but simply to negative the plaintiff’s case by disproving the ground upon which it was based. The inference from the fact of the emission of sparks by said locomotives was that they, or some one of them, were out of order or improperly constructed. The defendants simply sought to show that such inference was unfounded. The plaintiff had the burden of evidence upon the whole issue, which was to establish negligence on the part of the defendants. The other exception to the charge that “ if all the evidence satisfied them that there had been negligence on the part of the defendants, although they might not be able to satisfy themselves in what that negligence consisted,” they would be authorized to find a verdict for the plaintiff, is also, I think, well taken. This portion of the charge is very little better than saying to the jury, that if they could find no evidence of any particular improper act or omission of duty on the part of the defendants, and none had been shown or specified by the counsel or the court, that would warrant a verdict; yet if they believed that there was negligence, although they could not specify how it arose, or satisfy themselves in what it consisted, they might, nevertheless, find a verdict upon such belief. This doctrine is unsound and unjust. It would make jury trials a very uncertain and unsafe mode of determining the facts in judicial proceedings. To let a jury find a verdict imputing negligence or crime thus upon conjecture, or without evidence, or such evidence as will bear the light of examination and discussion, or evidence which shows what constituted the crime or the negligence imputed, could not be otherwise than of dangerous consequence.

The party who imputes negligence to another -must prove that the defendant, in some act or omission, violated a .duty resting upon him; he must show that the accident or injury resulted from the want of some precaution which the defendant might and ought to have resorted to; and, as Welles, J., says, in Daniel v. The Metropolitan Railroad Company (L. R., 3 C. P., 222), “ the plaintiff should also show, with reasonable certainty, what particular precaution should have been taken.” The burden of proof in such case rests upon the plaintiff, and he must clearly prove the facts from which it can fairly be inferred that defendant’s negligence, in some certain and clear particular, caused the injury. (Sher. & Red. on Neg., p. 14, § 12.) When these facts are not established, the plaintiff should be nonsuited, or the jury should be instructed to find for the defendant. If they cannot find in the evidence any rational ground upon which to base a verdict imputing negligence, they should find that no negligence was established. The plaintiff should make out his case by a clear preponderance in the evidence.

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

Present — Mullin, P. J., Smuth and Taloott, JJ.

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


text:
    MARIA G. HUBBELL, Respondent, v. GEO. H. BLAKESLEE and others, Appellants.

      Mortgage — afterpayment—cannot be made to continue, as a valid security — in'ust in relation to.

    No trust can be created and attached to an existing mortgage, so as to make it a valid security for any greater amount than that specified in the body and upon the face thereof.
    After the execution and delivery of a mortgage, but on the same occasion, and while the parties were still together, it was agreed between the mortgagor and the mortgagee that the latter should hold the mortgage until his debt was paid, and then assign it to the plaintiff, to be held by her as security for a debt owing to her by the mortgagor.
    The debt of the mortgagee having been paid, the mortgage was assigned to the plaintiff, who brought this action to foreclose it. Held, that the payment of the debt to the mortgagee extinguished his mortgage, and the assignment to the plaintiff was a nullity.
    Appeal from a judgment in favor of the plaintiff', entered upon the trial of this action by the court without a jury.

      J. S. GarlocJc, for the appellants.

      J. A. Stall, for the respondent.
   E. Darwin Smith, J.:

The complaint in this action sets out a promissory note, made by Charles Burgess for $3,150.72, payable to Allen Todd, six months1 after date (November 1, 1871), and a mortgage given at same date as collateral to said note, and the assignment of the said note and mortgage to the plaintiff, and prays for the usual judgment of foreclosure and sale of said mortgaged premises for the non-payment of said note, claiming that there was, at the commencement of said action, actually due on said note and mortgage the sum of $3,653.25.

Several of the defendants in said action, being judgment or attaching creditors of the said Charles Burgess, defended on the ground that said note and mortgage had been paid and satisfied.

The proofs in the case clearly show that the said note and mortgage were afterwards secured also by a conveyance of real estate, together with other debts of the said Burgess, amounting in the aggregate to the sum of $8,626./T9. That said Todd had given to the wife of Burgess an agreement for a sale and conveyance to her of said real estate, on the payment of such debt. That such repurchase was never made or debt paid by Mrs. Burgess, but on the contrary she gave up said contract of sale to the executors of said Todd, who received said real estate in full payment of said debt, they at the same time agreeing to assign said note and mortgage in suit to the plaintiff.

The clear legal effect of this arrangement was to pay and satisfy the said note and mortgage. The debt to Todd which said note and mortgage were given to secure was paid; it no longer existed as a valid claim in law or equity, and the assignment of said note and mortgage to plaintiff was a nullity. It was a simple assignment of a paid up security.

In this view the defense to said action was complete, and the complaint should have been dismissed.

But in answer to this view it was shown at the trial, that after the execution and delivery of said note and mortgage, but on the same occasion and while the parties were together, it was agreed between them that “ said Todd should hold said note and mortgage, as well for the security of the indebtedness of said Burgess to the plaintiff (being a liability as guarantor in the sum of $3,500) as for his own claim against said Burgess; ” that is to say, that said Todd should first hold the same as collateral security for h'is own claim as aforesaid, until the said claim should be discharged, and thereupon the same should be assigned to and held by the said Maria G-. Hubbell, as collateral security for her said claim as aforesaid ; and that Allen Todd accepted and received said note and mortgage upon said agreement and understanding; and directly after tbe execution and delivery of said promissory note and mortgage to said Todd, the terms of said agreement and the fact that it had been made were communicated both by said Todd and said Burgess, jointly, to said plaintiff, who assented thereto; and the agreement was made without fraud and in good faith,” as set forth in the findings of the judge at Special Term.

Upon this finding of fact the learned judge held, as matter of law, “ that the said Allen Todd and his legal representatives held the said promissory note, for $3,158.72, of Charles Burgess and the mortgage in suit, in part for the security for his own debt and partly as trustee for the plaintiff; and that said note and mortgage were not, as to said Charles Burgess and his other creditors, paid or satisfied by the payment in full of said Todd’s indebtedness against him merely, nor until the payment of said debt of the said plaintiff against him as well; ” and gave judgment for the full amount of the plaintiff’s debt, with interest and costs.

The legal effect of this decision is, that a complete executed mortgage given as security for a debt of $3,158.72, specified in said mortgage, is thus duplicated by parol and made a valid and existing mortgage also, for another debt to the plaintiff of $3,500. Or, in other words, a mortgage which upon its face is security for $3,158.72, is in fact made by parol a valid mortgage for $6,658.72.

I cannot see how this can be done, or how such decision can be sustained.

It is in distinct conflict with the sixth section of title 1, chapter 7, part 2, vol. 2, page 134 of the Bevised Statutes, which is as follows: “ No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or -declared unless by act or operation of law or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto, authorized in writing.”

A mortgage, though a security for a debt, is also a conveyance of . real estate, and is recorded as such, and the registry must show the true amount for which it is made and held.

It is doubtless true, as held in Truscott v. King (6 N. Y., 147), and other cases cited by plaintiffs counsel, that a mortgage may be given or a judgment confessed to secure future advances to the extent of it,which will be effectual as a security for such advances against subsequent incumbrancers having notice of such mortgage, or judgment and advances. But in these cases the judgment or mortgage are or must be given for a definite amount upon their face, and the advance must be within the limits of such amount.

This case is not within the principle of that class of cases ; it is simply an attempt to tack to or graft upon a written and executed mortgage, under hand and seal of the mortgagor, a parol mortgage for one double its amount.

This I think cannot be done directly, or by any indirection. It is in the teeth of the statute. (Stoddard v. Hart, 23 N. Y., 556; Bank of Utica v. Finch, 3 Barb. Ch. Rep., 293.)

No trust can be created and attached to an existing mortgage in such case, that can make it a valid security for any greater amount than that specified in the body and upon the face thereof.

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

Present — MulliN, P. J., Smith and Talcott, J J.

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


author: E. DarwiN Smith, J.:

text:
    FRANK ARROWSMITH, Appellant, v. NELSON ARROWSMITH and DEBORAH TALLINGER, Respondents.

      Tenancy by the curtesy — subject to debts of wife —• Surrogate — sale of lands — Power of, to distribute surplus.

    Where a wife, who has acquired title to real estate since the acts of 1848, dies intestate, her husband is entitled to an estate, as tenant by the curtesy, in the lands of which she dies seized, subject to the payment of her debts.
    The surrogate has power to direct the sale of such lands in payment of the debts of the deceased; and the husband will acquire the same interest in the surplus remaining, after payment of the said debts, as he had in the land itself.
    Although the surrogate has power under the Revised Statutes (3 Rev. Stat. [6th ed.], 116, and chap. 150 of I860), to order the investment of such surplus, on the ground that the husband is entitled to an estate for life therein, he has no power to direct that such property he applied in payment of the debts of the husband. He can pass upon the claims of creditors of the intestate, but not upon those of creditors of the husband.
    Appeal from a decree of the surrogate of Monroe county distributing the proceeds arising from the sale of the real estate of Margaret Arrowsmith, intestate, by Nelson Arrowsmith, her administrator.
    On the 25th day of June, 1875, Nelson Arrowsmith, as administrator of Margaret Arrowsmith, petitioned the surrogate of Monroe county for leave to mortgage, lease or sell the real estate of which Margaret Arrowsmith died seized, for the purpose of paying her debts.
    Such proceedings were had as that on the 10th day of August, 1875, a sale of the real property of the intestate was ordered, and on the fifth day of November said property was sold for $2,625, Frank Arrowsmith; the appellant, becoming the purchaser.
    On the 23d day of February, 1876, the surrogate of Monroe county made a decree distributing the proceeds of said real estate sold, and it is from this decree that the appeal is brought.
    The surrogate, in the decree, directs that a life estate of Nelson Arrowsmith in the lands sold be deducted from the purchase money realized on the sale of the lands, $2,600, which life estate the surrogate adjudges to be $1,110.69 ; cost of the proceedings, $177.63; debts of the intestate, $1,233.53; balance to Frank Arrowsmith, heir at law of intestate, $103.15 ; making the $2,625.
    He also directed that the life estate adjudged to Nelson Arrow-smith be-paid to one Deborah A. Tallinger, who was the owner of a judgment recovered against him October 31st, 1866.
    On June 20th, 1868, Nelson Arrowsmith executed and delivered to Frank Arrowsmith a deed or instrument, in writing, for the consideration of $658.23, by which he transferred to the said Frank Arrowsmith certain interests in the property so sold by said Nelson Arrowsmith, as administrator, which he, the said Nelson, claimed to hold in said property.
    The grounds of error alleged were :
    That the life estate of Nelson An’owsmith, as tenant by the curtesy, should attach and be estimated only in the surplus of the estate, after paying the debts of the intestate, instead of the whole amount of $2,625 derived from the sale, and that the surrogate had no power to consider and estimate this life estate.
    That the deed executed showed only a conveyance, and there was a conveyance only, of the estate of Margaret Arrowsmith. That Nelson Arrowsmith had not conveyed any life estate under these proceedings, and was not entitled to any share of the proceeds of the sale.
    That Deboi’ah Tallinger, as assignee of the judgment against Nelson Arrowsmith, was not entitled to any portion of the proceeds of this sale as a judgment creditor, as aforesaid, or otherwise.
    That Frank Arrowsmith, as heir at law of Margaret Arrowsmith and grantee or assignee of Nelson Arrowsmith under the deed of June 20th, 1868, was entitled to the money derived from the sale after paying expenses and debts.

      L. N. Bangs, for the appellant.
    The surrogate erred in holding that the life estate claimed by Nelson Arrowsmith in said lands, as tenant by the curtesy attached to the proceeds of the whole estate, before deducting the debts of the intestate. (1 Bouv. Law Dictionary, title “ Curtesy ; ” id., title “ Estate,” sxrb. 20 ; Watson v. Watson, 13 Conn., 83-86 ; 1 Wash. Real Prop. [2d ed.], 142; id. 143, § 50; In the Matter of Winne, 2 Lans., 21-23; 1 Bright, Husband and Wife, 143 ; Tyler on Infancy and Coverture, 418.) By the proceeding to sell real estate only the interest of the intestate can be sold. Any specific charge in any judgment or mortgage maintains its lien, as does any paramount estate. (3 R. S. [6th ed.], 113, § 37.) There is no provision in the statute, that an -estate as tenant by the curtesy of the husband is to be taken into account, when it existed; it must have been considered as a paramount estate covering the entire property that descended, and was recognized as one of the charges classed with judgments and mortgages, subject to which the purchaser takes his title. If any estate, as tenant by the curtesy, existed in Nelson Arrowsmith, it has not been sold or conveyed; he has, therefore, no interest in these moneys derived from the sale; neither has his judgment creditor, Deborah Tallin-ger. ( Vcmdervoort v. Oould, 36 N. Y., 639-641; Oage v. Dauchy, 34 id., 293-296.)

      De L. Crittenden, for the respondents.
    The common-law estate, by curtesy, was vested by the death of Margaret Arrowsmith. {Billings v. Baker, 28 Barb., 343; Beamish v. Hoyt, 2 Robt., 313; In re Winne, 2 Bans., 21; Hatfield v. Sneden, 54 N. Y., 280 ; Young v. Bangbein, 7 Hun, 156.) After the death of the wife this estate became consummate ; but only in that event can it be strictly defined “ as a continuance of the wife’s estate.” (Crabb’s L. of Real Prop., §§ 1110, 1075 ; Roper on Husband and Wife, 35; In re Winne, 2 Bans., 24.) Her debts, unless charged as specific liens upon the premises, by way of mortgage or judgment, can in no manner be made a basis for affecting the interest or estate of the husband in the entire proceeds of their sale. A devise to executors “ for payment of debts,” does not affect the estate of tenant by curtesy. (1 Greenl. Cruise on Real Prop., title “ Curtesy,” 156; Gurnards Case, 8 Rep., 96, a; 4 Coke, pts. 7 and 8, p. 324; Robertson v. Stephens, 1 Iredell Eq. [N. C.], 250; 1 Hilliard Real Prop., 7, 113.) An interest of the husband, as tenant by the curtesy initiate, is a well defined legal estate which will exist after the wife’s death. (4 Kent, 22-26; 1 Rev. Stat., 722, § 5.) As under attachment during the joint lives a judgment against the husband operates, at the instant of its entry, as a lien upon this legal estate. (Bag et al. v. Cochran, 24 Miss., 261-273, opinion of Smith, Oh. J.; Adair v. Lott, 3 Hill, 186; Ellsworth v. Cooke, 8 Paige, 643; Van Duzer v. Van Duzer, 6 id., 366; Schermerhorn v. Miller, 2 Cow., 439.) Dower controlled by statute, not by rule 85. (2 N. Y. Sup. Ct., 485; Robertson v. Morris, 11 Ad. & Ell. [N. S.], 916; Ewell’s Bead. Gas., 478.) Judgment binds and is a charge upon the lands, tenements, real estate and chattels real which the debtor has either at the time of the docketing, or which such person shall acquire at any time thereafter. (2 Rev. Stat. [Edm. ed.], 371, § 3; Roberts v. Whiting, 16 Mass., 186.) That estate became bound by the judgment entered October 31, 1866, assigned to respondent Mrs. Tallinger. If sold, the purchaser would acquire the same title the husband could by grant give to his grantee. (In re Winne, 2 Bans., 25; Shortall v. Hickley, 31 Ill., 219; Canby v. Porter, 12 Ohio, 79 ; 2 Crabb Real Prop., 119; 1 Roper Husband and Wife, 35; 1 Wash. Real Prop., 143.) Equity will not interfere in favor of a child to prevent due application in favor of husband’s creditor upon this estate. (1 Broom & Hadley Com., 50, notes; Van Duzer v. Van Duzer, 6 Paige Oh., 366; Roberts v. Whitney, 16 Mass., 186 ; Burd v. Doursdale, 2 Brim [Penn.], 80 ; Mattocks v. Stearns, 9 Yt., 326.) Judgment lien being created upon the estate of the husband previous to the sale under the surrogate’s order, became, after sale consummated, a lien to the same extent upon the fund. (Ellsworth v. Cooke, 8 Paige, 643.) Appellant’s position that the contracting of a simple contract debt by a married woman creates a lien, even if she expressly charged her estate with its payment in other form than by mortgage or judgment, is not tenable. {Yale v. Dederer, 22 N. Y., 453; Ballin v. Dillaye, 3Y id., 35-38; Maxon v. Scott, 55 id., 251.)
   E. DarwiN Smith, J.:

On the decease of Margaret Arrowsmith, the intestate, her husband, Nelson Arrowsmith, the respondent, undoubtedly succeeded to her estate as a tenant by the curtesy. (Hatfield v. Sneden, 54 N. Y., 285 ; Ransom v. Nichols, 22 id., 110; Barnes v. Underwood, 47 id., 351; Matter of Winne, 2 Lans., 21.) Though they were married before the passage of the act of 1848 for the more effectual protection of the rights of married women, her title to the land in question was acquired after the passage of that act.

The respondent, however, took such estate subject to the payment of the debts of his wife. During her life the property was absolutely hers and she was entitled to receive the rents and profits thereof to her own use, and all debts by her contracted became a charge upon her property, as much as if she had been in fact an unmarried woman.

The surrogate had full power, therefore, to order the sale of the lands of which she died seized, after her personal property was exhausted, for the payment of such debts. The whole property might be, as it was, sold for that purpose, and the interest of'the respondent was the same in respect to the surplus, after the payment of such debts and the expenses of the sale, that it would have been in any portion of such lands not required for the payment of such debts and not sold. The surplus moneys arising from' the sale represented land, and the surrogate had no power, I think, to dispose of it definitely. If it was land the respondent would primarily be entitled to possess and enjoy it as tenant by the curtesy for his life. In his hands it would be subject to the claims of liis creditors, like other property, and his interest in it might be sold on execution.

The surrogate had no jurisdiction to dispose of such property in payment of the debts of the respondent, and could not adjudicate such questions. He could only pass upon the claims of the creditors of the intestate.

Under section 55 of the statute relating to the proceedings of the surrogate in such eases (3 R. S., m. p. 107 [6th ed., p. 116] ; and chap. 150, Sess. Laws, 1850, p. 315), he might order the investment of such moneys on the ground that the respondent was entitled to the interest thereof during his life, but he could not pay them to him or to the heir, who would only have been entitled to the reversion of the land sold and represented by such money upon the termination of the life estate.

The order of the surrogate is erroneous, therefore, so far as it conflicts with these views. It was error to deduct the estimated amount of the value of the life estate of Nelson Arrowsmith from the proceeds of the sale before the payment of the debts of the deceased. These were entitled to priority of payment. But, as the debts of the intestate were all paid, this is a matter of no consequence, except so far as the decree allows to the respondent the amount of the balance of such estate, which was estimated at $1,110.69, and directs its payment to him.

It was error to pay to the appellant the sum of $103.15, as the heir at law of the deceased. This was so much deducted from the surplus arising from said sale after payment of the debts, but there is no appeal in respect to this item. The question whether the judgment of Mrs. Tallinger was a charge upon the surplus fund, or whether the deed of the respondent to the appellant, dated June 20, 1868, conveyed all the interest of the respondent to the said appellant, were questions which could not be adjudicated by the surrogate. The decree of the surrogate should so far be modified, as to direct him to hold the surplus moneys received from said sale for investment as above stated? subject to the adjudication of the proper tribunal in respect to its disposition, and otherwise it may be affirmed, without costs to either party.

Present — MulliN, P. J., SMith and Taloott, JJ.

Ordered accordingly.