text:
    James Lawlor, Resp't, v. Magnolia Metal Company, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Attachmet—Discharge by undertaking.
    The giving of an undertaking to free the defendant’s property from the lien of an attachment does not impair the validity or discharge the power of the court’s mandate, but is practically a substitution of the sureties on the undertaking- in place of property as security for the whole or a portion of the claim.
    2. Same.
    The sheriff cannot hold the property of the defendant for the payment of his fees where the attachment has been vacated.
    3. Same.
    But he may do so, in a case where the attachment is discharged by the giving of an undertaking.
    4. Same—Vacation.
    The giving of an undertaking to discharge the attachment does not preclude the defendant from moving to vacate the attachment.
    Appeal from am order denyimg a motion to compel plaintiff to pay the sheriff’s fees and disbursements, and to direct the sheriff to deliver property in his possession by virtue of a warrant of attachment.
    Alexander S. Bacon, for app’lt; L. A. Gould, for resp’t Lawlor; Burrett S. Stone, for resp’t sheriff.
   O’BRIEN, J.

The plaintiff obtained an attachment, and levied upon the property of the defendant, which thereupon filed an undertaking, and an order was entered discharging the attachment. The sheriff refused to deliver up the defendant’s property until his fees were paid for poundage and care of the property. Ho question is made as to the amount of such fee's ,the single question presented being as to whether the defendant is obliged to pay .the sheriff’s fees before he is entitled to a return of the property.

By section 709 of the Code of Civil Procedure, it is provided that “where a warrant of attachment is vacated or annulled, or an attachment is discharged, on the application of the defendant, the sheriff must * * * deliver to the defendant, *'"* * upon payment of all costs, charges and expenses legally chargeable by the sheriff, all the attached personal property remaining in his hands, or that portion thereof as to which the attachment is discharged.” And chapter 418 of the Laws of 1892, in addition to fixing the fees for levying warrants of attachment, provides that “the sheriff may retain the property levied upon until his fees and poundage are paid.” In construing the above section of the Code (section 709), in the case of Bowe v. Reflector Co., 36 Hun, 407, it was held that, in so far as the said section attempts to compel a defendant to pay the costs, charges, and expenses incurred by the ‘ sheriff in levying upon his property under an attachment where such an attachment has been subsequently vacated and set aside,, it is unconstitutional and void, as depriving the defendant of hi® property without due process of law. That case and the reasoning upon which it is supported we regard as a controlling authority against the right of the sheriff to hold the property of a defendant for the payment of his fees where the attachment has been vacated. The question presented here, however, is different, relating as it does, to the sheriff’s right in a case where the attachment is discharged by the giving of an undertaking. The undertaking does not, in terms, provide for the payment of sheriff’s fees; and even though it be assumed that the defendant might have included them in his undertaking, and thus have secured them to-plaintiff, yet it has failed to do so. It is conceded that the sheriff’s-fees must be paid by some one and at some time; and where, as here, the time has arrived for the payment of such fees by the discharge of the attachment and provision for the return of the property, it remains to be determined by whom they should be paid.

That there is a plain and broad distinction between vacating and discharging an attachment we think too apparent to require discussion. The effect of an order or judgment vacating the attachment is an adjudication that the property was illegally seized, and that the sheriff is retaining it without any process in his hands. Where, however, the attachment is discharged by the giving of an undertaking, the attachment still lives, the undertaking being substituted in the place of the levy made by the sheriff. This provision of the Code, which permits an undertaking to be given in discarge of an a-ttaement, is an act of grace; and the provision for delivering up the property upon the giving of such an undertaking is a favor which the defendant is at liberty to accept or-refuse. The effect of the undertaking is not to vacate or nullify the-attachment; it merely suspends its vitality as effecting the property levied upon, and stays its enforcement as to such property. And we think that this is manifest from the provision allowing the undertaking in discharge of the attachment as to the whole op; part of the property attached. To illustrate, if a levy is made on ‘property which in value is less than the plaintiff’s claim, and an undertaking in discharge of such attachment is given to the extent of the value of the property attached, this would not prevent a subsequent levy upon other property of the defendant. For instance, where the plaintiff’s claim was $50,000, and a levy was made upon only $1,000 worth of the property, the giving of an undertaking for the latter sum would discharge the attachment as to that property, but would not impair the attaching creditor’s right to levy on additional property if it could be found to the extent of the balance of his $50,000. As correctly urged by the respondent, therefore, since a single warrant of attachment may not be partly efficient and partly a nullity at the same time, the giving of an undertaking to free the defendant’s property from the lien of the attachment does not impair the validity or destroy the power of the court’s mandate, but is practically a substitution of the sureties on the undertaking in place of property as security for the whole or a portion of the plaintiff’s claim. The giving of an undertaking to discharge the attachment does not preclude the defendant from moving to vacate the attachment. Currie v. Riley, 14 Wkly. Dig. 407; Claflin v. Baere, 57 How. Prac. 78; Garbutt v. Hanff, 15 Abb. Prac. 189; Rowles v. Hoare, 61 Barb. 266. This establishes the proposition that the attachment itself survives the giving of such undertaking, and that the giving thereof in no wise impairs the effectiveness of.the attachment itself.

We do not think, however, it is necessary to pursue this question, as we concur in the views expressed in the opinion of Mr. Justice Ingraham in the case of Bank v. Reichman, decided by him at special term, which,"not being reported, we give in full:

“The attachment in this case was not vacated, and there is no claim by defendant that the attachment was improperly granted, or that the defendant’s property was not properly levied upon under the attachment. The defendant, by complying with the provisions of the Code, and giving an undertaking to secure the payment of the plaintiff’s claim, has procured an order that the attacment be discharged; but the court was justified in granting the attachment, and the sheriff was jusified in proceeding under it. I think it clear that the legislature had power to provide that the sheriff could retain the property levied on under the attachment until his fees were paid, where the attachment was properly issued, and where it was discharged only because the defendant had availed himself of the provisions of the Code allowing him to substitute the personal obligation of the sureties in place of the property, attached to secure any judgment that the plaintiff might obtain. The cases cited by the moving party, the principal one of which is Bowe v. Reflector Co., 36 Hun, 407, do not apply, for in that case the attachment had been vacated, and not discharged, because of the substitution of other security. I think the legislaure intended, by subdivision 2 of section 17 of chapter 523 of the Laws of 1890, as amended by chapter 418 of the Laws of 1892, to allow the sheriff to retain possession of the property levied upon until his fees and poundage are paid, whether the attachment was discharged by order of the court or the action was settled; and while that provision would be inoperative in a case where the attachment was vacated because it was improperly granted, and the plaintiff was not entitled to have the defendant’s property held to secure any judgment that he might obtain, it is operative where it appeared that the attachment was properly obtained, and the action was either settled or the attachment discharged by reason of the substitution of other security. I think, therefore, the sheriff is entitled to hold the property levied upon under the attachment until his fees are paid, and, upon the payment of such fees, he is directed to deliver the property to the defendant. The amount of the fees can be taxed on notice.”

Our conclusion, therefore, is that the order appealed from is right, and should be affirmed, with ten dollars costs and disbursements.

All concur


source: Caselaw Access Project

author: WARD, J.

license: Public Domain

text:
    In the Matter of Thomas Lofthouse, an Alleged Lunatic.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March, 1896.)
    1. Lunacy proceedings—Payment op costs.
    As soon as proceedings for the appointment of a committee of a lunatic have been successfully instituted, the court is authorized to direct the payment of the cost of the proceeding out of the property of the alleged lunatic.
    2. Same.
    The death of the lunatic, before confirmation of the return of the commission, does not deprive the court of the power of allowing" such costs and directing their payment.
    3. Same.
    When such costs are so allowed and ordered paid, they become such an obligation against the property of the deceased lunatic that the executor will be authorized to pay them.
    Appeal from an order of the special term, adjusting certain bills of cost and expenses in the proceeding for the appointment of a committee to inquire into the lunacy of Thomas Lofthouse.
    S. B. McIntyre, for app’lt; Gilbert & Estey, for resp’t.
   WARD, J.

On April 20, 1894, the petition of George Lofthouse was presented, by his attorneys, to the special term of the supreme court, praying for a commission de lunático inquirendo to inquire into the lunacy of his father, Thomas Lofthouse. The court at special term appointed G. II. Ray as special guardian for the said Thomas Lofthouse, to attend to his interest in the proceeding under a commission, which was granted, and appointed E. W. Hamm, Esq., a commissioner to execute the writ. A jury was summoned, and on the 22d day of June, 1894 after several days’ session, in a proceeding in which the alleged lunatic appeared by counsel, and in which the attorneys for the petitioner and the said guardian also appeared, they found that the said Thomas Lofthouse was of unsound mind, and incapable of governing himself or managing his property. The inquisition was returned, and filed with the county clerk; and, on the 18th day of July, Thomas Lofthouse died, there having been no confirmation of the finding of the jury and appointment of committee prior to such death. Thomas Lofthouse left a will, in which he appointed an executor. The will was duly admitted to probate, and the executor duly qualified and entered upon the duties of his trust. On the 30th day of January, 1895, the special term of the supreme court, upon petition duly presented to the court, and upon notice to the executor, and upon affidavits presented in support of the claims, and in opposition thereto, adjusted the claim of C. H. Ray as special guardian at the sum of $74.50, and Commissioner E. W. Hamm, his fees in the sum of $80, and a further sum of $27.25 for expenses and disbursements of the said commissioner in the proceeding, and allowed the petitioners, for their counsel fees, costs, and disbursements in the said proceeding, the sum of $176.50, and directed that the foregoing sums he allowed and payable out of the estate of Thomas Lofthouse, deceased, the alleged lunatic. The executor, upon said motion, through his counsel, objected to these items, and to the allowance thereof, and denied the power of the court to allow and adjust the same. The appeal from the order making such allowance brings the matter before us.

It is now insisted by the counsel for the appellant that the court had no jurisdiction of the matter upon which it acted; that its jurisdiction in the premises ceased upon the death of Thomas Lofthouse, at which time the lunacy proceedings were at an end; that, after his death, the inquisition could not be confirmed, nor the claims allowed, and it is only where the inquisition is confirmed and a committee appointed that the courts can allow costs and disbursements of a petitioner in lunacy proceedings, under section 2336 of the Code of Civil Procedure; that it was error for the court to thus adjudicate upon those claims, and allow them; that, if the claims had any validity, they should have been presented to executor as a debt against the deceased, to be adjusted and allowed, if at all, upon the same principle that other debts are presented and allowed against the estate of a deceased person.

There seems to he no objection to the amount of the claims allowed, or the justice of such claims, if they are allowable at all. 'These claims arise in special proceedings, instituted under sections 2320—2340, inclusive, of the Code of Civil Procedure, and being title 6 of chapter 17 of that Code, authorizing the appointment of a committee of the person and property of lunatics, etc., and defining its general powers aud duties. The codifiers of this Code say, in referring to this chapter, “that they have carefully endeavored to avoid inserting statutory restrictions upon the courts, tending to deprive them of any part of the large discretion now vested in them, which it is necessary to preserve for the benefit of the unfortunate individuals to whom this title applies.”1 The care and custody of lunatics and persons of unsound mind were formerly vested in the chancellor; hut, by the constitution of 1846 and the judiciary act supplementing it, this power became vested in the supreme court and in the county courts of the several counties as to persons residing in those counties, concurrent with the supreme court; so that the original chancery jurisdiction vesting in this court upon this subject has not been circumscribed .or limited by the Code; the chapter referred to providing the procedure to he adopted in appointing the committee, and defining its 'duties, rather than defining the jurisdiction of the court over the person, and property of a lunatic. By section 2333 of the Code, the commissioner is entitled to such compensation for his services as the court directs. The jurors are entitled to the same compensation as jurors upon the trial of an issue in an action in the same court. The petitioner must pay the compensation of the commissioner, sheriff, and jurors. These expenses accrued before the death of the alleged lunatic, and a duty is expressly imposed upon the court to allow them. It is provided by section 2336 of the Code: “Where a committee of the property is appointed, the court must direct the payment by him out of funds in his hands of the necessary disbursements of the petitioner and such a sum for his costs and counsel fees as he thinks reasonable.” The disbursements of the petitioner for his costs and counsel fees and the fees of the special guardian bad been earned, so to speak, by the counsel for the petitioner and the special guardian prior to the death of Lofthouse. Ho committee had been appointed. Hone could be apponted after such death, but the lunacy of Thomas Lofthouse had, in fact, been declared and established by a jury prior to that time, and these costs and expenses had been incurred in a proceeding in good faith to establish such lunacy. The precise question here is whether the claimants for the allowances made by the court have been deprived of their right to enforce them, by the death of Thomas Lofthouse. We do not think that those claims are debts against the estate of Thomas Lofthouse in any such sense as to be enforced and collected in the ordinary manner that debts against a deceased are collected, because the claims did not become perfected, and the property of the lunatic not liable therefore, until the court has fixed the amount of the claims, and ordered them to be paid. That was done in this instance. When they are so allowed and ordered paid, they become such an obligation against the property of the deceased that the executor will be authorized to pay them. In Re Clapp, 20 How. Prac. 385, 388, 389, it was held that if, upon the execution of the commission of lunacy, it had been found that the alleged lunatic was of sound mind, then the court would have acquired no control over his property, and could not have charged the costs of the proceeding upon his property, as in that case it would have found no property under its control out of which the costs might be paid; but after a jury had passed upon the question, and found the alleged lunatic of unsound mind, the court, upon confirming the inquisition, acquires complete jurisdiction over the lunatic and his property,-—citing In re Giles, 11 Paige, 638; 1 Collin. Ln. 461; In re Arnhout, 1 Paige, 501.

We are of the opinion that the moment these proceedings, which terminated, so far as they had gone, successfully, had been instituted, the court obtained such jurisdiction over the property of the alleged lunatic as, 'by virtue of its general powers in such cases, it could provide for the payment of the costs of the proceedings out of such property. The report of the inauisitiou was not formally confirmed in this case, but it was sanctioned by the court as far as it was necessary to give vitality to these claims, and to that extent was a confirmation of the inquisition. Further proceedings, such as the appointment of a committee, were rendered impossible by the death of Thomas Lofthouse; but such death did not deprive the court of the power of allowing those claims, and directing their payment. Section 2336 is imperative: Where a committee is appointed, “the court must direct the payment by him, out of the funds in his hands,” of the costs and disbursements. The Code contains no prohibition upon the court, either in language or by inference, against allowing costs and expenses under circumstances like those in the case before us. The ordinary course of such proceedings results in the appointment of a committee, who is an officer of the court, and takes possession of the property of the lunatic; and in that event the committee must be directed to pay the costs, etc.; but in this case the court, by virue of its inherent powers, having secured substantial control of the lunatic’s property, may lawfully make the order appealed from.

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

All concur.


text:
    Artis v. Buffalo R. and P. Railway Company.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March, 1896.)
    For majority opinion, see 73 St. Rep. 519.
   WARD, J.

(dissenting). I am unable to concur with a majority of the court in reversing this judgment and order, and •directing a new trial in the case. The plaintiff’s employment with the defendant as a brakeman commenced after dark on the •evening of March 28, 1892. While he had been a brakeman “upon other railroads, and had experience in their service, he had no knowledge at the time of the accident to him of the condition of the track upon which he was called to work, or the place where be was at work; and, in performing the service of attempting to couple the cars at the place of his injury, he was obeying the direction of the defendant’s yard master, who had set him at work. There was evidence sufficient to go to the jury in the plaintiff’s behalf that, at the place of the injury, there was a hole in the track, between two ties, about eight inches deep and ten inches long, that evidently had been left there by men at work upon the track in ballasting it. There was evidence, also sufficient to go to the jury, that no work had been done by defendant’s track-men at that point for a considerable period of time prior to the accident; so that , if the doctrine were applicable at all to this case, the jury might infer it, as stated by the learned tiral judge in denying the motion for a new trial herein, that “they might have found from the testimony that the hole had been there for some days, for it appeared that no work had been done in that place for some days.” But it is difficult to see how the doctrine of notice of the defects in this track could have any application. The master’s duty to provide a reasonably safe place for a new servant to work, ignorant of the situation, cannot be delegated to any servant or employe; but, whenever there is negligence in that regard, it is the negligence of the master, and not of a fellow servant. Kuhn v. Railroad Co., 92 Hun, 74; 71 St. Rep. 233. The prevailing opinion in this case seems to put the reversal upon the ground that the negligence, if any, in leaving this hole in the track, was that of a fellow servant, and therefore the master is exonerated. It seems to me that the bare statement of such a reason contains its own refutation. There is no claim of contributory negligence on the part of the plaintiff in this case. He was performing his duty in ignorance of the place where he ivas set to work at the command of the master, and. in performing that duty he stepped into the hole, and was maimed for life. In my judgment, the verdict was justified, and the judgment should he upheld, and the motion for a new trial denied, with costs.


author: PER CURIAM. WARD, J.

text:
    Jonothan Osman, App'lt, v. Albert N. Barker, Resp't.
    (Supreme Court, General Term, Fifth Dept.,
    Filed December 28, 1895.)
    Replevin—When Lies.
    Under a lease requiring the lessee to thresh the crop of grain in the barn on the premises and stack the straw in good order for the lessor, the lessor cannot replevin such straw, before it is threshed, from the lessee’s mortgages, though the latter with knowledge of the terms of the lease, harvested the grain and took it to another farm.
    Appeal from a judgment in favor of defendant.
    George E. Warner, for app’lt; Chamberlain & Page, for resp’t.
   PER CURIAM.

Judgment affirmed.

WARD, J.

(dissenting). — This action was commenced in justice’s court in the county of Monroe, hy the plaintiff (the appellant), to recover a quantity of wheat straw, and the complaint set forth a cause of action for the recovery of the same, and for damages for the detention thereof. The answer d enied the plaintiff’s complaint, and alleged that on the 29th of ¡November, 1893, one Howard Carmel, being the owner of the growing crop of wheat situate on the premises of the plaintiff leased hy Carmel, executed and delivered to the Milson Rendering & Fertilizing Company a chattel mortgage on the growing crop of wheat, to secure a debt due the company of $55.50; that Carmel had never paid the debt, and, when the wheat became ripe and ready to harvest, Carmel refusing to harvest it, the defendant harvested the wheat, and took possession thereof, as the agent of the company, and was entitled to the possession thereof, by virtue of such chattel mortgage, and demanded a judgment for a return of the property, with damages for its detention. It appeared in evidence that the plaintiff had leased his farm by a' written lease for a year, from the 1st day of April, 1893, for a cash rental of $250, to said Howard Carmel. The lease provided that all grain grown on said farm should be hauled to the barn, and threshed there, and the straw stacked in good order. In the summer of 1894, when the wheat was ready to cut, the defendant, as the agent of the mortgagee, harvested the wheat, there being about eight acres of it, and drew it (including the straw) to a barn on another farm near by, claiming to own it under the chattel mortgage, which had become flue. The plaintiff demanded of the defendant that he return the wheat to the bam on the premises, which the defendant refused to do; and while the straw, including the wheat unthreshed, was thus in the defendant’s possession, it was taken by the plaintiff by proceedings in replevin in justice’s court, and delivered to the plaintiff. The justice rendered a judgment awarding the possession of the property to the plaintiff, with costs. The defendant appealed to the county court of Monroe county, where a new trial was had before the court, without a jury; and •the county court held that the defendant was entitled to the possession of the property until the wheat was threshed, and gave-judgment for the defendant. The county court found as a fact that the plaintiff was the owner of the straw; that, by the lease in question, the tenant, from whom the mortgagee derived its title, owned the wheat in the straw, with the right to harvest it, and thresh it on the plaintiff’s premises; and that there was sufficient room in the barn of the plaintiff on those premises to store’ and thresh the grain. These facts are supported by the evidence. It was uncontradicted in the case that the defendant persisted in ■taking the straw, including the wheat, off the premises of the plaintiff, notwithstanding that he was told by a member of the plaintiff’s family that, under the lease, he had no right to do so. The defendant in no manner stated or claimed that he was simply taking the straw off to a neighboring barn to thresh the wheat, and return the straw after such threshing, but insisted on a full ownership under the mortgage, which covered the straw as well as the wheat. The plaintiff had the right under these -circumstances to treat the defendant as a wrongdoer, who claimed the straw, and had converted it to his own use, and to replevy the straw; and if, as an incident to the straw, or as contained in it, the wheat not having been senarated by the defendant from the straw when and where the defendant had the right to separate it, the defendant could not complain. The plaintiff had the right to have the straw threshed upon his own land, where he could lave the benefit of the whole of it and the chaff that came therefrom for the uses of his farm. This could not he fully secured if the wheat was threshed elsewhere. The fact that the defendant removed this straw from the plaintiff’s premises when it was not necessary, for the purpose of threshing or storing the wheat, claiming title under the mortgage, indicated the defendant’s intention to convert .to his own use the property in controversy; and' the plaintiff was not bound to wait until the straw was beyond his reach, or bring his action for damages. He could seize the property itself, as ho did, to await the determination of the action.

The learned county judge favored us with an opinion in which he ably presents the view taken by the county court in the matter, and cites Colville v. Miles, 127 N. Y. 159; 38 St. Rep. 132, and Hawkins v. Giles, 45 Hun, 318; 12 St. Rep. 426. Where the tenant has agreed to feed out certain farm produce to the stock upon the farm, creditors of the tenant levied ¿apon this produce, and it was held that, notwithstanding the contract between 'the tenant and his landlord that the produce was to be fed out on the farm, still such produce, being the property of the execution debtor, could be taken by the creditor on execution. The difference between those cases and the one before us is manifest, inasmuch as here the straw was the property of the landlord, and not of the tenant.

We have reached the conclusion that the judgment should be reversed, and anew trial granted, with costs to abide the event.

The following is the opinion of the lower court (Sutherland, J.):

This is an action of replevin, in which the plaintiff obtained a writ in justice’s court requiring the constable to whom the writ was delivered to take into his possession certain unthreshed wheat •straw, which the defendant, as agent for the Milson Rendering & Fertilizing Company, had cut and harvested upon the farm of the plaintiff, and had caused to be drawn to a barn on an adjoining farm, for the purpose of having the grain threshed. As soon as the wheat was put in the bam, men were engaged to thresh it; but, before an opportunity was given the defendant to thresh the grain, it was taken under the writ of replevin, and this action was commenced. The justice awarded judgment for the plaintiff, giving him possession of the property in question; and, the defendant having appealed, the case was retried in this court.

The plaintiff leased his farm in the town of Ogden to one Howard Carmel. Hnder the lease, the tenancy of Carmel began April 1, 1893, and was to expire March 31, 1894, unless it was renewed by mutual consent for a further term. Carmel occupied the premises during the said term, and left the premises at the termination of the first year. When Carmel rented the said farm, there was growing thereon some wheat, which had been sown by the former tenant in the fall of 1892. Carmel left growing upon the farm eight acres of wheat, which he had sown in the fall of 1893, which became ready for harvesting the last of July, 1894, at which time the farm was in the possession of another tenant. The Carmel lease required the tenant “to feed all straw and coarse fodder grown on said farm to some stock, so as to make it into manure, and to haul out and properly distribute all the manure made on said farm.” The lease further provides as follows: “But, if his convenience require it, he may haul any such loose fodder or hay to the bam on the opposite side of the road where he lives, provided he shall draw the manure made from the same back to the place where the fodder was grown. The wheat now growing on said farm is reserved, with the right to the previous tenant to go upon said premises, and cut, harvest, and thresh the same, with barn room to properly house and care for the same; but the present tenant (Carmel) shall have the right to leave as much wheat growing on said farm at the termination of his tenancy, with like rights to harvest, thresh, house, and care for the same, including in each ease storage in the granary until said grain can be conveniently moved. * * * All grain grown on said farm shall be hauled to the bam, and threshed there, and the straw stacked in good order; and the tenant may use the straw from the wheat now growing on said farm. He shall claim no right to the straw from the wheat growing on said farm after the termination of this lease, and after he leaves the place.” The defendant, as agent of the Milson Rendering <& Fertilizing Company, sold Carmel fertilizers in the summer of 1893, and the amount of Carmel’s indebtedness therefor amounted to $55.50, all of which having become due, Carmel gave to the company a chattel mortgage covering said eight acres of growing wheat, in which chattel mortgage Carmel represented that he was the true and lawful owner of said crop, and had the right to mortgage the same. This chattel mortgage was at once filed in the office of the town clerk. In July, 1894, when the wheat was ready to harvest, Carmel told the defendant, as agent for said company, to harvest said "crop, and thresh the same, under which instruction defendant did go upon plaintiff’s farm, and cut the grain, and caused it to be drawn to the barn on a farm adjoining plaintiff’s premises, for the purpose of having it threshed. Before the day appointed for threshing the grain arrived, Mr, Bringham, who acted as agent for the plaintiff, came to the defendant, and demanded the immediate return of the wheat to the Osman farm. With this demand the defendant declined to comply; and this action was immediately commenced, and the unthreshed grain was taken from the possession of the defendant under the writ of replevin.

The defendant says that he had no knowledge of the provisions of the lease requiring the grain to be threshed upon the Osman farm until he received such information during the progress of the trial of this case before the justice. It does not appear that the demand made upon him by Mr. Brigham was accompanied by any assurance that the defendant could thresh the wheat and take away the grain. The demand was unqualified, and required the immediate return of both the grain and the straw. There is some evidence that, before this demand was made upon him, the defendant contemplated selling the straw after the wheat was threshed; but the defendant says he had no knowledge of the provisions of the lease under which the title to the straw was to remain in the owner of the land. The defendant then might have been- acting under the assurance given him in the chattel mortgage that the tenant had the right to mortgage the entire crop. When the plaintiff commenced this action, he insisted that the defendant had no right to the possession of the unthreshed straw, and he alleges in his complaint that the defendant never had the right to the possession thereof; and, in the affidavit on which the writ was issued, the plaintiff says, that he does not know under what claim the defendant withheld the property from the plaintiff’s possession. It is very clear that, under the lease, the title to the straw always remained in the plaintiff, and that Oarmel had no right to mortgage the straw. He did have the right to mortgage the grain, and to cut, harvest, and thresh the crop, for the purpose of separating the gr'ain from the straw, and that right passed to the defendant’s company under the mortgage. For the purpose of threshing the wheat, the defendant was rightfully in possession of the unthreshed straw at the time of the commencement of this action. If the crop had remained upon the Osman farm, and had been there threshed, it still would have been in the possession of the defendant during that process. All that the plaintiff could insist on was that every particle of straw and chaff should remain upon his place, and be properly stacked; but after the grain was cut, and until it. was threshed, the defendant had the right to the possession thereof. In order to maintain replevin, it is absolutely essential that the plaintiff should have, at the time of the commencement of the action, a right to the exclusive and immediate possession of the chattels in suit. Wood v. Orser, 25 N. Y. 348. This, right the plaintiff did not have at the time the actionjvas commenced.

It is urged that, inasmuch as the lease required the grain to be threshed on the Osman farm, the plaintiff could replevin the crop in order to get it back upon his own farm from the place to which it had been taken. This claim, however, we do not think tenable, The defendant would have had the right, to the possession of the crop if it were on the Osman farm, for the purpose of having it threshed. The plaintiff, in his complaint, seems to have denied the right of the defendant to the possession of’ the unthreshed crop on the Osman farm, as well as elsewhere. In short, the plaintiff has invoked this remedy, not merely to obtain the removal of the crop from the barn where the defendant stored it back to his own premises, but also to obtain for himself the exclusive and continued possession thereof. It is true that nlaintiff claimed not the grain itself, but the straw; but this case turns on the right of possession at the time the suit .was commenced. Because the defendant may have claimed more rights in the entire crop than he was entitled to before he had actual knowledge of the provisions of the lease does not give the plaintiff the right to maintain this action; and the plaintiff himself has weakened his position by insisting upon more than he is entitled to. Hudson v. Swan, 83 N. Y. 552.

We do not think the fact that the lease was not filed in the town clerk’s office is of any importance. The reservation of the straw was not to secure the payment of any indebtedness from the tenant to the landlord, and cannot be considered as a chattel mortgage. But our conclusion is that, because the defendant had the right to the temporary possession of the whole wheat crop at the time the action was commenced, the plaintiff was not entitled to the remedy.

How far defendant’s right to the temporary possession of the crop is affected by the provision in the lease that the grain should be threshed upon the Osman farm is an interesting question. In Hawkins v. Giles, 45 Hun, 318; 12 St. Rep. 426, where there was a provision under which the tenant agreed to pay cash rent for a farm, and to feed out, on the farm, all fodder raised, it was held that the owner of the farm could not prevent the removal of the hay raised by" the tenant, on an execution against the tenant. In Colville v. Miles, 127 N. Y. 159; 38 St. Rep. 132, a farm was leased for dairy purposes, and the tenant agreed to take charge of certain live stock in which he and his landlord had a joint interest, and to raise food enough on the farm to winter the stock, and to feed it out on the place, and, if enough was not raised for that purpose, to buy what was necessary. The defendant levied on some hay raised upon the farm while the tenant was in occupation, under a warrant of attachment against the tenant. It appeared that sufficient food was not raised upon the farm to winter the stock. The owner of the farm brought an action of replevin to obtain possession of the hay so levied upon. But the court of appeals held that the title to the farm products was in the tenant, not in the landlord, and that plaintiff was not entitled to an action of replevin notwithstanding the covenant in the lease that the hay should be fed out on the farm, and the manure left upon the place. In each of the cases cited, Hawkins v. Giles and Colville v. Miles, the title to the crop was held to be in the tenant. In that respect those cases differ from "the case at bar. But the cases are similar to this one in that in each case there was a covenant on the part of the tenant that tho fodder and hay should remain upon the leased premises, to be there consumed. The court in each instance held that the covenant did not affect the right of the creditors of the tenant to levy upon the hay and fodder, and remove it from the farm. The court of appeals say, in the Colville Case, that the agreement to- feed the hay upon the farm did not amount to a reservation of the title, but was an executory contract, for the violation of .which the landlord could have -recovered damages. The court necessarily must have concluded that the conceded right of the plaintiff to have the hay fed out on the farm could not he enforced by a writ of replevin.

In the case at bar the title to the wheat straw was in the plain.tiff; but the right to the temporary possession of the wheat straw, until the grain was threshed, was in the defendant. The only act done by the defendant of which the plaintiff can now complain is the removal of the unthreshed crop from the plaintiff’s farm to the adjoining farm. We think the case of Colville v. Miles is authority for the proposition that the plaintiff was not entitled to invoke the remedy of an action in replevin to enforce the covenant in the lease against the removal of the crop from the plaintiff’s premises. We do not say that the plaintiff has not a right of action for damages for the removal; and if, after the grain had been threshed, the defendant had refused to deliver possession of the straw to the plaintiff, there'can be no doubt that the plaintiff would have had the right to replevin the straw, or to sue for its conversion. Until the grain was threshed, all the plaintiff could ask was that the crop should remain upon the premises. Had it remained there, it would have been rightfully in the possession of the defendant. Had it been taken back from the adjoining farm to the barn of the plaintiff, the defendant would still have had the right to the possession of the crop until it was threshed. But the plaintiff’s right to maintain an action in replevin must be, based upon his right to the immediate, exclusive, and continued possession of the property at the time of the commencement of the action, which right, in our opinion, the plaintiff did not then have.

Appeal from a judgment in favor of plaintiff.


text:
    Cornelia B. Stark, Resp't, v. James A. Robson, as Executor, etc., App'lt.
    (Supreme Court, Appellate Division, Fourth. Department,
    Filed Februay 7, 1896.)
    E. W. Gardner, for resp’t.
   PER CURIAM.

Judgment reversed.

WARD, J.

(dissenting). The plaintiff was the daughter of William H. Lamport, of Canandaigua, deceased. In 1863 she received, from an insurance policy upon the life of her deceased husband, Edward C. Huntington, $5,178. The deceased,, as. trustee of the plaintiff, invested $3,000 of that money in the purchase of Illinois school bonds,' bearing ten per cent, interest, which became payable in March, 1873, and collected the greater1 portion thereof, with interest, and invested $3,000 of the money in a mortgage, executed hy one William S. Haight, upon lands, in Illinois, at ten per cent, interest. The deceased received, from. time to time, moneys growing out of the said investment and reinvestment made of the same, from March, 1883, until 1890, over $4,000. Mr. Lamport died in 1891, and a claim was presented by the plaintiff against his estate, under the statute, which was referred to a referee, who reported in favor of the plaintiff in the sum of $4,867.26, upon which judgment was rendered. This appeal attacks this judgment; the appellant claiming that there was not sufficient evidence to justify the conclusions of the referee, and that the decided preponderance of evidence is against it.

This contention is based almost entirely upon testimony given by the plaintiff in an examination in proceedings supplementary to execution, in June, 1881, in which she substantially said that she had settled with the father, and had no claims against him growing out of the insurance money. It appeared that the great bulk of the investment of the insurance money was still in the west, and had not been collected by the deceased at the time that such evidence was given; that the plaintiff had received about $800 from her father, in the shape of loans and advances, prior to her testifying, and she may have referred, in her statement as to the settlement, to those sums, and what occurred up to the time that her testimony was given. As before stated, the evidence showed that the deceased had received over $4,000 as the result of such insurance money after 1881. There were statements in the plaintiff’s testimony at that time which show that she was mistaken in important particulars. Two of the neighbors of the deceased, responsible and intelligent people, testified that the deceased stated, a short time before his death, that he had $3,000 of his daughter’s money, and that he was liable to pay it any time. A hook kept by the deceased was produced in evidence,, where entries were made which recognized the fact that the deceased held the plaintiff’s money as trustee. Taking the whole-evidence together, I am satisfied that the referee not only had sufficient evidence to justify his findings of fact, but the preponderance of evidence supports such findings. The other members of the court hold that, in view of the testimony of the plaintiff, before referred to, the referee should have found against her,, notwithstanding the other evidence in the case, and so reverse this judgment, in which I cannot concur.

The judgment should he affirmed, with costs.


text:
    Charles J. Sharpsteen, Resp't, v. Livonia Salt and Mining Company, App'lt.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March, 1896.)
    1. Master and Servant—Risks.
    Where the work in which the servant is eug'aged is evidently hazardous and the place where he is working is in process of construction and is incomplete at the time of the accident, and he has full knowledge of the condition surrounding him and of the changes attending his employment, he is called upon to exercise the care commensurate with his situation and accepts by his employment at such a place the risks of the location.
    2. Same.
    The master does not insure the safety of a servant. His contract with the servant is for a reasonable care of him under all the conditions surrounding the employment.
    Appeal from a judgment rendered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    W. B. Putney, for app’lt; Lewis H. Jack, for resp’t.
   WARD, J.

The defendant, the Livonia Salt & Mining Company was engaged in sinking a shaft to the salt deposit in the town of Livonia, in Livingston county, for the purpose of mining salt in the summer and spring of 1891. The shaft was sunk mainly, through the solid rock, which was removed by blasting into fragments, and being hoisted and carried away. Then the usual timbers were put in. The dimensions of the shaft inside of the timber was 10 by 20 feet, the longest dimension running north' .and south. On the 9th of July, 1891, on the day the plaintiff was injured, the shaft had been sunk to the depth, of 525 feet. In timbering it, the shaft was divided into three divisions, each! being 6 by 10 feet, the longest dimension extending east and west; These divisions were planned to extend from the top to the hot-| tom of the shaft, and were separated by timbers put through east' and west, about 8 or 10 inches apart. The boards placed ou the optside of the shaft against the rock were called “lagging” by the witnesses. The middle apartment or division of the shaft was used for a hoistway, and generally a bucket was used in which the fragments of rock were hoisted, and by means of which lumber and timbers were let down into the mine. Laborers were also lowered and raised in this bucket. The northern division way was used for a ladder way and air chamber. At intervals of about 16 feet down this northern division, platforms were built, in the southwest corner of which a space 20 by 24 inches was left open, for the ladder way; the ladder itself being set on the platform, with the bottom about 2 feet out from the west wall, and the top leaning against the west wall. Each succeeding ladder was placed in the same manner on the next platform, so that, in going down, a person, having come to the foot of the ladder, would step around onto the top rung of the next ladder, which set hack of the foot of the ladder above. Four feet of the east end of the northerly division was used as an air shaft, an aperture being left therefor, which was sheathed up after the platform was laid. The sheathing of the air chamber was the very last thing to he done in connection with the completion of the northerly division. The sinking of the shaft being through rock, considerable space had to he left below the permanent tinv bering for the drilling and blasting. A heavy double platform across the whole shaft was built, about 25 feet above the bottom of the shaft, to protect it from blasts, etc., to the permanent shafting above; and this double platform was removed, and placed lower down, from time to time, as the work progressed. When such lowering of the double platform was made, the platforms for the ladders were built down to within a proper distance up. The construction of the lower part of the timbering of the shaft, including platforms, was always in more or less of..a dangerous -condition. The plaintiff had been employed by the defendant in October, 1890, the shaft being then about 35 feet down; and the plaintiff had been working on the shaft continuously till the 9th day of July, 1891, as digger, helper on the drill, and working on the timbering. Every day that he worked, he had been going up and down the shaft. At intervals, the work of blasting rock in the bottom of the shaft was suspended, in order that the timbering might be brought down, as the blasting and putting in the timbering near the bottom of the shaft could not go on at the same time. On the morning of July 9th, the drill gang was laid off, which included the plaintiff. The plaintiff, one Robinson, and two others of the employes upon this work were waiting to be put to work, and Robinson, the shift boss, or boss of the work for the defendant, took along one Callicott and the plaintiff to work on the timbering. The plaintiff had a miner’s lamp in his hat, and the others had lamps and candles. Candles were kept by the defendant in the head house right over the shaft, and, the employes took them as they needed them to use. The plaintiff, with Robinson and Callicott, went to the bottom of the shaft in the bucket, to malee an inspection, and then commenced to shift the double platform, which was taken out, and put in again lower down, about 25 feet above the bottom of the shaft. The plaintiff and Callicott then built a ladder platform about 5 feet above the double platform, and they went up to plank the platform about 15 feet above the one they had just made. It was while at work on this platform that the plaintiff met with the accident. The timbers at that point, separating the northerly and middle divisions had been put in place. The platform had not been completed. The sheathing of" the air chamber had been made down the shaft only a portion of the way, and had not been built down to this platform, so that the hole for the air chamber at the point of the accident was left open. There was a bell used in connection with the work. Robinson, the foreman, told the plaintiff to get out of the bucket, and ring the bell for them (Robinson and others), while the others fixed something below. Callieott was at work on the platform, where the plaintiff was operating the bell wire at the manhole in the ladder way. Callieott told the plaintiff to step out of the way, while he did some work where the plaintiff was standing. Plaintiff stepped around Callieott, and fell into the hole, and was severally injured. The plaintiff testified that he did not know that the hole was there, and no one had informed him of that fact. He blew out the miner’s lamp that he held, at Callicott’s request, as Callicott said the smoke bothered him at his work. The place was very dark. Callicott had a candle burning, which created but little light upon the floor. The plaintiff admitted that, had he got down with the light near the flooring of the platform, he could have discovered the hole. This he did not do, although he saw Callicott moving around the platform on his hands and knees. •

Although the plaintiff testified that he did not know the hole into which he fell was there at the time of the accident, we have reached the conclusion, from the whole evidence in the case, that, from plaintiff’s knowledge of the situation, he must have known, or, if he did not know, very slight inspection of the place would have discovered to him, .the dangerous situation he was in. It was evident that he did know, but, in a moment of haste and forgetfulness, he neglected the precautions he should have used for his safety. The case is a very distressing one. The plaintiff is a physical wreck, and incapable of earning a'livelihood; and, if this recovery could be justified, upon any legal principle, we-should sustain it.

The plaintiff seeks to fix the responsibility upon the defendant by invoking the familiar principle that it is the duty of the master to furnish a safe place for his servants to work, or, at least, to use reasonable care to that end, and in case of a hidden danger, or one of which the servant is not advised, and cannot be without experience of the situation, it is the duty of the master to give the servant warning of such danger. Neither of these principles applies to this case. The work in which the plaintiff was engaged was evidently hazardous. The place where he was working was in process of creation or construction. It was incomplete at the time of the accident. The plaintiff had full knowledge of the conditions surrounding him, and of the dangers attending his employment, and was called upon to exercise the care commensurate with his situation, and accepted by his employment at such a place the risks of the situation. The shaft was deep and dark. The platform that had been constructed was narrow, and a step-in the darkness would precipitate the workmen into the abyss-below. To protect the servant, the master had provided him with a lamp and with candles ready at hand, where he could explore the mine, and become aware of any obscure danger. The master does not insure the safety of the servant. His contract with his servants is for a reasonable care of them under all the conditions surrounding the employment. It seems unnecessary to cite cases to sustain this view, but reference may be made to Kennedy v. Man. Railway Co., 145 N. Y. 288; 64 St. Rep. 705; Donnelly v. Brown, 43 Hun, 470; Kaare v. Iron Co., 139 N. Y. 369; 54 St. Rep. 653.

The judgment and order should be reversed, with costs to abide event. All concur.


author: BISCHOFF, J.

text:
    George M. Allen, App'lt, v. The Rector, etc., of Church of the Beloved Disciple, Resp't.
    (Supreme Court, Appellate Term, First Dept.,
    Filed April 27, 1896.)
    1. Trial—Dismissal on merits.
    Where the cause is, without objection from the plaintiff, submitted to the justice for decision, he cannot urge that the evidence was insufficient to support a recovery, or that the justice was not authorized to determine the action upon the merits.
    3. Witness—Credibility.
    The credibility of a witness, interested in the event of the action, is to be determined by the justice.
    3. Appeal—Evidence.
    Where there is no preponderance of evidence in favor of plaintiff, upon an issue on which he has the burden of proof, he fails in establishing a case.
    Appeal from a judgment in favor of defendant.
    Sproull, Harmer & Sproull, for app’lt; Morgan, Whiton & Mitchell, for resp’t.
   BISCHOFF, J.

The action was to recover the fair and reasonable value of services rendered and materials furnished in and about the supply of a number of pamphlets descriptive of the defendant’s edifices and works, and the only issue litigated at the trial was whether or not the services were rendered and the materials furnished at the instance and request of the defendant, and upon its promise to pay therefor. The justice below rendered judgment “in favor of the defendant, and against the plaintiff, with ten dollars costs,” and from such judgment the plaintiff has appealed.

It is conceded for the appellant that the evidence was insufficient, to entitle him to recover, and such, indeed, it was; no authority in the person at whose immediate request the work was done, to conclude the defendant by a contract in its behalf, having been shown; and the appellant urges, as the only ground for reversal of the judgment, that it proceeded upon the merits of the controversy, whereas it ought, of right, to have been “that the action be dismissed, with costs, without prejudice to a new action” (Consolidation Act; Laws 1882, c. 410, § 1382), as in the case of a nonsuit. Ho evidence was given for the defendant, other than the testimony of one of its officers in denial of an alleged admission testified to in the plaintiff’s behalf; but the denial was wholly immaterial, in view of the general insufficiency of the evidence for the plaintiff upon the point alluded to. From the record of the proceedings at the trial, however, it appears that when the introduction of evidence for both sides was concluded the defendant’s counsel moved the dismissal of the complaint for insufficiency of the evidence to sustain the cause of action. The justice denied the motion, in which ruling the plaintiff acquiesced; and the cause was thereupon, without objection from the plaintiff, submitted to the justice for decision. The only reasonable inference from the facts so appearing is that the plaintiff maintained the sufficiency of the evidence, and consented to a determination of the action upon the merits; and, such a determination having been had, no error is apparent therefrom, and the plaintiff should be thereby precluded. No question can arise with regard to the jurisdiction of the justice to render a judgment upon the merits which is final and conclusive between the parties, and in so far as the provision of the consolidation act, hereinbefore alluded to, was for the benefit of the plaintiff, it was competent for the latter to waive it. Robert v. Baumgarten, 126 N. Y. 336, 341; 37 St. Rep. 482; Sherman v. McKeon, 38 N. Y. 266, 274; Shutte v. Thompson, 15 Wall. 151. “Interest reipublicae ut sit finis litixim.” Broom, Leg. Max. (8th Am. Ed.) pp. 331, 343. Hence, upon appeal a party will be held to the position assumed upon the trial. Fay v. Muhlker, 1 Misc. Rep. 321, 323; 48 St. Rep. 699, and cases collated; 7 Am. & Eng. Enc. Law, 22, note, “Inconsistent Position in Legal Proceedings Generally;” Bigelow, Estop. 578. And the plaintiff cannot now urge that the evidence was insufficient to support a recovery, or that the justice was not authorized to determine the action upon the merits. Assuming the evidence to- have been sufficient, it rested, in the main, with regard to the contractual authority of the person at whose immediate request the plaintiff did the work, or the ratification of his unauthorized act, upon the statements of the plaintiff, a witness interested in the event of the action, whose credibility, therefore, remained to be determined by the justice. 29 Am. & Eng. Enc. Law, 774. And so, in such aspect of the evidence, also, the judgment was rightfully rendered. The statements were of an alleged admission of liability by one of the defendant’s officers, denied by thq latter as a witness for the defendant. No preponderance of the evidence in favor of the plaintiff is therefore apparent. :

The judgment is affirmed, with costs.

All concur.


author: HARDIN, P. J.

text:
    James Spicer, Resp'ts, v. George Raplee, as Executor, etc., App'lt.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed April, 1896.)
    1. Limitation—Executors.
    It is the duty of an executor or administrator to set up the har of the statute of limitations to a claim presented, and if he omits to do so, he will not be allowed in his accounting any sum paid upon a debt which, at the time of its payment by him, was barred by such statute.
    3. Same.
    But a demand barred by the statute can be revived with the consent of those interested in the estate.

      S. Same.
    An. instrument, executed by the heirs and devisees, evidencing their consent, as well as desire, that a certain claim should be paid out of the fund in which they were interested, relieves the claim of the bar of the statute of limitations.
    Appeal from a judgment in favor of plaintiff.
    The complaint in tins action is against George Eaplee, as sole executor, and against him individually. Joshua Eaplee died on the 31st day of August, 1888, in the town of Barrington, Tates county, leaving a last will and testament, which was admitted to probate about the 1st of October, 1888; and the complaint alleges that “the above-named defendant duly qualified as such executor, and was at all the times hereinafter named the sole acting executor of said estate.” The complaint also alleges that “on the 21st day of November, 1888, one Oliver Eaplee duly presented to said George Eaplee, sole acting executor as aforesaid, a claim in writing for $1,145.50 and interest from November 1, 1888, against the estate of said Joshua Eaplee, deceased,” on account for goods and materials sold and furnished and for work done at the request of said Joshua Eaplee. The referee finds “that the greater part of said claim, to wit, about the sum of nine hundred and seventy dollars, was barred by the statute of limitations at the time of the death of the said Joshua Eaplee; that on the day of the presentation of the account the said George Eaplee, as such executor, subscribed a written acceptance of said claim.” The referee finds that Oliver Eaplee relied upon the acceptance, and took no further steps to prove the claim against the estate. The referee also finds “that after the said George Eaplee had, as aforesaid, subscribed his name to said written acceptance of said account, he borrowed the account and acceptance, and took it to his counsel, the late Charles S. Baker, and his counsel removed the name so subscribed to said acceptance; that the defendant, as such executor, prior to and including the 21st day of December, 1888, paid to said Oliver, to apply on his account, the sum of $425.” On the 15th day of May, 1890, counsel for the executor prepared a written request that the claim be paid by the executor, which was, “within a few days of its preparation, subscribed by seven of the other heirs at law of the deceased.” On the 1st day of September, 1891, the said Oliver Eaplee assigned to the plaintiff said claim, and payment thereof was demanded before this action was commenced. The deceased held a note made by Oliver Eaplee for $200, which the defendant set up as a counterclaim, and which the referee allowed. The defendant, as sole executor, admits in his answer that the claim was presented to the executor. The answer set up the six-years statute of limitations. The referee dismissed the complaint as to George Eaplee individually, without costs. The referee allowed the counterclaim, and deducted the payment of $425, and found a balance in favor of the plaintiff for $675, with costs. The defendant appeals from the judgment.

      Briggs & Sunderlin, for app’lt; William T. Morris, for resp’t.
   HARDIN, P. J.

Appellant insists that there was an accord and satisfaction produced by the payment made by the executor to Oliver Raplee, and the transaction accompanying the payment. He calls our attention to the testimony given by the defendant in respect thereto; and the defendant as a witness refers to an interview that took place at his home on the 20th day of December, 1888, when Oliver applied to the defendant for some more money upon the claim. Defendant testifies that in the interview with Oliver, Oliver consented to take $250 upon the account in payment -in full.thereof. He also testifies that a day following the conversation he met Oliver, at McLain’s and paid him the $250, and took a receipt. The defendant’s wife was called as a witness, and she testifies that in the interview spoken of by her husband they finally decided on $250. She said there had been $150 paid at one time and $25 at another, and that the $250 was in addition thereto; and she testifies that they were to meet at Dundee the next day, when the $250 was to be paid. To meet the evidence thus given by the defendant, the plaintiff called as a witness Oliver Raplee, who testified that George did not say to him that: “If I would clear out, and riot bother any more, he would give me $70; no such word; George did not tell me that, nor anything like it.”

2. Upon the trial the plaintiff produced an agreement purporting to be executed by the heirs at law of the deceased. It was offered in evidence, after its execution was proven, by the plaintiff. Although some objection was taken to its reception as evidence, and overruled, there was no exception taken to the ruling receiving it: The paper was received in evidence, and read as follows:

“We, the undersigned heirs at law, devisees, and legatees of Joshua Raplee, deceased, hereby request Daniel Raplee and George Raplee, the executors of the last will and testament of the said deceased, to allow and pay the claim presented against the estate of the said deceased by Oliver Raplee; and, if such allowance and payment is made by said executor, no claim whatsoever will be mad© by us, or either of us, against the executor by reason thereof, but the same shall be credited and allowed to them on the settlement of their accounts as such executors.'

“Dated May 15th, 1890.

“E. Raplee. Mary Fitzwater.

“Hiram Raplee. Elizabeth Walling.

“ J ane Arwine. Oelistia W ailing.

“Daniel Raplee.”.

The paper seems to have been produced at the instance of the defendant by Oliver Raplee, and it seems to have been drawn by the attorney for the executor for the purpose of relieving him from anv objection that might otherwise be made by the heirs at law in the settlement of his accounts with the surrogate. Apparently the same was procured for the purpose of avoiding all question that might be made as to the propriety of the executor’s action in having- accepted the account, and promised to pay it, and for the purpose of waiving all questions as to any supposed defense of the statute of limitations. The account of Oliver Raplee, containing the items thereof, amounting to $1,145.50, was verified by him by the usual oath on the 21st of ¡¡November, 1888, and presented to George as the executor of their father’s mil, and he thereupon accepted that account, apparently in the following language:

“The foregoing account having this 21st day of ¡November, 1888, been presented to me, one of the executors of the estate of Joshua Raplee, deceased, by Oliver, as a demand due and owing to him from said estate, I hereby, as such executor, accept the same as a valid and -existing demand against said estate, due and owing said Oliver Raplee, and as such executor agree to pay the same out of the avails of said estate.

(“Dated November 21st, 1888. ---,

“Executor.”

It appears by the evidence that subsequently George borrowed the paper from Oliver, to take it to Mr. Baker, and while Mr. Baker had it in his possession the signature of George was torn therefrom, and when the account and paper were returned the paper was in a mutilated condition. There is no evidence in the case tending to show there was any assent or authority given by Oliver that the signature of George should be erased or "detached from the agreement signed by him. Subsequently, and apparently on May 15, 1890, the heirs at law and devisees and legatees signed the instrument wherein they requested the executors “to allow and pay the claim presented against the estate of said deceased by Oliver Raplee; and, if such allowance and payment are made by said executor, no claim whatsoever will he made by us, against the executor by reason thereof, hut the same shall be credited and allowed to them on the settlement of their accounts as such executors.” The referee has found that the persons signing the instrument from which the quotation has just been made are “the devisees and legatees under his [deceased’s] last will and testament.” There is no specific exception to that hurling of fact, nor do we find and exception in the case which warrants the appellant in insisting that that finding of fact was erroneous. It is found that the executor has property enough of the estate of the testator in his hands to pay the claim. The referee allowed the defendant the benefit of the payments which had been made on the claim, and also allowed him the counterclaim, the note for $200, which the deceased held at the time of his -death against Oliver, and reported the balance to be $675. The referee, upon the facts found by him, stated as conclusion of law, viz.:

“That the written request signed by the seven heirs at law of the said .Joshua Raplee, deceased, for the executors to pay said claim, and the active part taken therein by George Raplee,. relieved the claim of the baa* of the statute of limitations, and the said George Raplee thereon became bound to pay the same out of the assets of said estate in the hands as such executor.”

In the judgment entered upon the report of the referee the following language is used:

“It is adjudged by the court that the said plaintiff recover of the said defendant, as such executor, the said sum of $675.”

It seems to be settled that it is the duty of an executor or administrator to set up the bar of the statute of limitations to a claim presented, and that, if he omits to do so, he will not be allowed in his accounting any sum paid upon a debt which, at the time of its payment by him, was barred by such statute. Wilcox v. Smith, 26 Barb. 318; Gilbert v. Comstock, 93 N. Y. 484; Butler v. Johnson, 111 N. Y. 204; 19 St. Rep. 85. It has been repeatedly held that the defense of the statute of limitations is a personal privilege, and that no one can compel any one to take advantage of it if he1 chooses not to. “He may interpose the statute of limitations, but he may waive it also. The law does not compel him to resort to this defense; nor can others insist upon it for him.” Bank v. Kimble, 76 Ind. 195. And in Halliburton v. Carson, 100 N. C. 99, it was said, in substance, as follows: “That fhe law does not require an executor to make his testator sin in his grave by setting up an unconscientious defense.” It has been held in several of the states that an administrator or executor'represents the testator so far as the personal property is concerned, and that from the personal property he can pay a claim that is well founded, although it is barred, without being obliged to take advantage-of the statute of limitations. The rule seems o be otherwise in this state, as appears by the doctrine laid down in Gilbert v. Comstock, 93 N. Y. 484, and Butler v. Johnson, 111 N. Y. 204; 19 St. Rep. 85. In Webber v. Williams College, 23 Pick. 302, there was a proposition that, if the creditor would forbear bringing an action for a year, he should have thes ame rights that he then had. The creditor did forbear until after six years’ time had run, and the court held that the agreement made was a “good waiver of the statute of limitations.” There seems to be no foundation for the application of the doctrine of estoppel to the facts as presented in this case. Crawford v. Lockwood, 9 How. Prac. 547; Shapley v. Abbott, 42 N. Y. 447. The evidence disclosed at the trial warrants us in supposing that funds sufficient, resulting from the personal property of the deceased, were in the hands of the executor for the payment of the indebtedness presented by the claim of the plaintiff, and that the owners of that fund consented and requested that the claim in question be paid therefrom. Although the executor had no power to bind the other heirs at law at the time he signed the instrument consenting that the claim be paid out of the funds- of the estate, it was-' competent for him to bind himself as one of the parties interested in the fund, and when he attached his signature to the instrument consenting that the claim be paid it is fair to presume that it was-his intention then to assent, so far as he was interested in the estate, to the payment of the claim out of the funds of the estate. He never obtained the consent of his brother, the owner of the claim, to withdraw his name from the instrument which evidenced the consent. It therefore was sufficient, and binding upon him. The other instrument, executed by the other heirs and devisees, became obligatory upon them, and evidenced their consent, as well as desire, that the claim should be paid out of the fund in which they were interested. It seems to have been assmned by Porter,. J., in McLaren v. McMartin, 36 N. Y. 91, that a demand bared by the statute can be revived “with the consent of those interested in the estate.” We see nothing in Matter of Van Slooten v. Dodge, 145 N. Y. 330; 64 St. Rep. 682, helpful to the appellant in this case. In that case there was no original debt or liability of the deceased, and an expression was used in the opinion as follows: “An executor cannot subject the estate in his hands for administration to some new liability, either by his contract or by his wrongful act.” Under such circumstances it seems that the conclusion of the referee that the heirs at law of Joshua Raplee “relieved the claim of bar of the statute of limitations, and the said George Raplee thereupon became bound to pay the same out of the assets of said estate in his hands as such executor,” is reasonable, and should be sustained. It is well settled now that the statute of limitations acts only upon the remedy, and that it does not impair the obligation of a contract, or pay a debt, or produce a presumption of payment, “but is merely a statutory bar to a recovery.” Johnson v. Railroad Co., 54 N. Y. 416; Hulbert v. Clark, 128 N. Y. 298; 40 St. Rep. 401. In Insurance' Co. v. Bloodgood, 4 Wend. 652, there was a stipulation in the note in the following words: “I hereby agree not to plead the statute of limitations in a prosecution for any balance that may be due on said note.” In the course of the opinion delivered by Southerland, J., he remarked: “The defendant is estopped by his stipulation from availing himself of the statute of limitations. This stipulation is not confined to an action upon the note itself. It was undoubtedly intended to apply to the debt or loan of which the note was the evidence.” And in that case the defendant was not allowed to avail himself of the statute of limitations. See 13 Am. & Eng. Enc. Law, 717. If the foregoing views are adopted, they will result in the affirmance of the judgment entered upon the report of the referee awarding the plaintiff a recovery for the sum of $615, the balance remaining unpaid upon the claim.

Judgment affirmed, with costs.

All concur.


author: SILKMAN, S.

text:
    In the Matter of Appraisal of Estate of Sophia Gage Burr, Deceased, for Taxation.
    (Surrogate’s Court, Westchester County,
    Filed October, 1895.)
    Transfer Tax—Saving- bank deposit.
    Deposits in savings banks of this state, made by nonresidents, are taxable here.
    Appeal from a decree rendered on the report of the appraiser.
    James M. Hunt, for app’lt; J. Hampden Dougherty, for resp’t.
   SILKMAN, S.

This is an appeal by the county treasurer from the report of the appraiser appointed by this court to value the property of decedent within this state for the purpose of taxation under chapter 399 of the Laws of 1892. Decedent died in January, 1895, a resident of West Chester, in the state of Pennsylvania, in which state her will was proved and principal administration had. Her husband, Rushton D. Burr, died in Germany in May, 1893, but was at the time of his death a resident of the state of Massachusetts. By his will he gave his property to his wife. Among his assets were certain funds, deposited in savings banks located in the cities of Hew York and Yonkers. After his death, and in the year 1894, Mrs. Burr transferred such hank accounts to her individual name. It does not appear by the evidence that she used these accounts by depositing and drawing money, but counsel for respondent upon the argument con-' ceded that she did. " These accounts at the time of her death aggregated $8,584.73. Decedent also had in the hands of Duncan Smith, her legal adviser, who resides in this county, the sum of $2,500, and had also a bond for $10,000, secured by a mortgage upon real estate in the city of New York. The appraiser finds that the decedent made and retained the savings bank deposits “merely for her temporary convenience, and with the intention of withdrawing the same therefrom as soon, as she could find a satisfactory investment therefor; that in making snch deposits she never intended to invest the said moneys-within this state.” But there is nothing in the record before me that justifies or sustains such a finding or conclusion. The fact that her legal adviser resided in this state, as well as both of her executors, and the fact that she had already made investments in this state, would lead to the opposite conclusion. The appraiser finds that only the bond for $10,000 secured by a mortgage upon Hew York City real estate, is taxable in this state, while the county treasurer claims that the savings bank deposits and the money in the attorney’s hands is also taxable. I cannot see upon what principle the bond and mortgage is taxable, and not the savings bank deposits and the money in the hands of the attorney. I should he inclined to the opinion that, the property being intangible, its situs was that of the domicile of the owner, were it not for tlie decision- of the court of appeals in Re Romaine, 127 N. Y. 80; 38 St. Rep. 76, in which case it was held that deposits in savings banks of this state, made by non-residents, were taxable here. Counsel for respondent undertook to distinguish the Romaine Case from the one at bar, upon the ground that it appeared in the Romaine Case the securities were “habitually kept” within the state, and that in the case at bar the funds were left on deposit in this state temporarily only, awaiting investment. The principle upon which such property is taxable is that it is under the protection of our laws, and should, on that account, pay a share of the expenses of the gwemment. The money in the savings banks was there drawing interest; and protected by the laws of the state; among others that creating a banking department, which department is carried on at a great expense to the state, and was enacted for the particular protection of depositors. It is only in cases of property actually or constructively in transit from one state to another through this state that-an exception is made, and the propertv is not considered to be within the state. This case is one of some hardship, for the reason that the whole estate of the decedent is taxable in Pennsylvania (Laws Pa. 1887, p. 79), and, if the property referred to is taxable here> the right of succession to it will cost ten per cent, of its value. The Pennsylvania statute was evidently passed in view of the decisions in Orcutt’s Appeal, 97 Pa. St. 179; Appeal of Commonwealth of Pennsylvania, 11 Wkly. Notes Cas. 492,-—which followed decisions in the United States supreme court upholding in effect the legal fiction or maxim, “Mobilia personam sequunter;” but it was long ago decided in this state that such fiction was not of universal application, and does not apply to laws relating to taxation. " Hoyt v. Commissioners, 23 N. Y. 228. Judge Comstock,' however, in the decision in that case, limited its application to personal property that was visible and tangible; but the logic of the decision in the Romaine Case is that the maxim does not apply in any case where the securities representing the property or documentary evidence of property are within the state. It is unfortunate that the laws of the different states relating to succession taxes are not uniform, and framed to prevent double taxation; and it is also unfortunate that a construction of the law should be given which makes it easy for the law to be evaded, as it could have been in tins case. The foreign executors could have disposed of all the property within this state, and have given good title by assignment thereto, although they would not have any standing in the courts of this state to sue for the same. But with misfortunes we have nothing to do. We must execute the law as we find it, and as it has been interpreted by the higher courts. The decree assessing the tax heretofore entered will be opened and modified to include all the property referred to in the appraiser’s report, with ten dollars costs to the appellant.

Ordered accordingly.


author: KECK, J.

text:
    John E. Standring, as Overseer, etc., Resp't, v. Charles Moore et al., App'lts.
    (Fulton County Court,
    Filed December, 1895.)
    1. Bastardy—Bond—Alternate provisions.
    A bond, executed by a putative father of a bastard child under section 851 of the Code of Criminal Procedure, which embraces conjointly the two conditions named in that section, is a nullity, and no action can be maintained upon it.

      2. Same.
    If an undertaking with these distinct alternatives is valid, the principal has the rig'ht to make the election as to which one of these several alternatives or conditions he will comply with.
    Appeal from a judgment rendered in favor of plaintiff.
    Andrew J. Nellis, for app’lts; Frank Anderson, for resp’t.
   KECK, J.

The return shows that, upon the trial of this action in the justice’s court, the following proceedings were had, viz.: The defendants admitted each and every allegation in the complaint contained, and also admitted that the bond, a copy of which is made a part of the said complaint, was prepared by Mr. Nellis, the attorney for the defendants. The plaintiffs then rested. The plaintiff admitted, on behalf of the defendants, the facts, set forth hereinabove, constituting the answer of said defendants and each of them. The testimony then closed. By this admission of the plaintiff, he admitted the answer interposed by the defendants, which is as follows, viz.:

“That the next court of sessions after the order of filiation, set "forth in the complaint, was made, was held on the 4th day of December, 1893; that the magistrates making the said order and receiving the said undertaking transmitted it to the said court of sessions at its opening on the 4th day of December, 1893, with a certified copy of the said order; and that the said Charles Moore [meaning the putative father in the bastardy proceedings and principal in the undertaking] appeared at the said court of sessions to answer the charges and obey its ¿rders thereon, but the case was not called, and no record was made; that, when said order of filiation was made, Charles Moore, the putative father, paid the costs therein certified.”

After the testimony was closed, the defendants moved to dismiss the complaint upon the merits, upon the ground that, upon the proofs, no cause of action existed in favor of the plaintiff and against the defendants, or either of them, which motion was denied, and judgment rendered against the defendants for sixty dollars damages, and four dollar’s and eighty-eight cents costs, and from which this appeal is taken.

It is urged by the appellants that this judgment was erroneous for two reasons, mainly: (1) That the undertaking containing several alternatives rendered it void; and (2) that the appeal was to the next court of sessions under subdivision 2 of section 850 of the Code'of Criminal’Procedure, and the appearance of the principal at said court relieved the sureties from liability upon the undertaking. The respondent claims, however, that the undertaking operated as an appeal to obey the order of filiation.

The material part of the undertaking in question, on which the action is founded is as follows, viz.:

“Mow, the consideration of this obligation is such that, if said Charles Moore shall pay such sums for the support of the said bastard child and the sustenance of its mother as are ordered by the said justices as aforesaid, or as shall at any time hereafter be ordered by the court of sessions of said county, and shall fully and amply indemnify the said town, and every other county, town, or city, which may have or may be put to expense for the support of the bastard or of its mother, * * * or that the said Charles Moore will appear at the next court of sessions to be held in and for the county of Fulton to answer the charges and obey its orders thereon, or that the said John Moore and Philip Frederick will pay a sum equal to the full indemnity for supporting the bastard and its mother, as provided in the first subdivision of section 844 of the Code of Criminal Procedure, then this obligation to be void; otherwise, to remain in full force and virtue.

“[Signed] John Moore. [Seal.]

“Philip Frederick. [Seal.]”

I

—And was approved by the magistrates receiving it.

Section 851 of the Code of Criminal Procedure provides for two distinct kinds of undertaking, and is in the alternative, either that the defendant will pay the sum directed for the support of the child, or will appear at the next court of sessions of the county to answer the charges, and obey its orders thereon. People ex rel. Comrs. v. Schildwachter, 87 Hun, 363; 68 St. Rep. 436. One of the alternatives only can properly be inserted in an undertaking of this kind, as one only need be complied with by the putativo father. This undertaking, therefore, contains at least two distinct alternatives, when, to be correct, it should have contained but one.

The various sections of the Code of Criminal Procedure governing proceedings before magistrates respecting bastards arc almost precisely the same as those of the Revised Statutes which governed such proceedings for years immediately prior to the adoption of this Code,—the several sections of which applicable to and governing this case being re-enactments of such provisions, consequently decisions of the courts under those provisions are as useful as authorities as if made since, and may aid in determining the question here involved, and particularly as to the first point made by the appellants, that the undertaking is void because of these alternatives therein contained. In the ease of Hoogland v. Hudson, 8 How. Prac., at page 343, Strong, J., holds that a bond executed by a putative father of a bastard child, under section 14, tit. 6, c. 20, pt. 1, p. 645 I Rev. St., embracing, conjointly, the two conditions in that section, is a nullity, and that no action could be maintained upon such a bond, because the action upon one of the conditions (for payment under the order of filiation) is to be brought by the overseer of the poor, but upon the other condition (to appear at the next court of sessions) by the district attorney of the county in.the name of the people.

Row section 851, above referred to, is the same as section 14 of the Revised Statutes, under which this decision was made. By section 882 of this Code, it is provided that, when the undertaking to obey an order in relation to the support of the bastard is forfeited, it may be prosecuted in the name of the county superintendent or the overseer of the poor of the town liable for such support; but, if the appeal is one that requires the putative father to appear- at the next court of sessions, and not from the order of filiation, as provided for in this section, then an action cannot be maintained by such overseer, but must be prosecuted by the district attorney of the county in the name of the people, after forfeiture, and an order of the court made authorizing or directing the prosecution thereof, as provided by section 881 of such Code. If, therefore, the holding of the court in the case above referred to is correct, and I think it is, then the undertaking upon which this action is based is a nullity, by reason of its alternative provisions^ and the judgment ajipealed from should be reversed.

If, however, it be assumed that the undertaking with these distinct alternatives in it is valid, and that one or the other of them may be regarded and treated as surplusage, and ignored, then, who has the right to determine or elect which alternative shall be complied with, and which one rej ected ? Shall the people, or the putative father, the principal in the undertaking, have this right of election? The rule laid down by Coke, and almost universally recognized, is as follows:

‘That in case an election be given of two or more several things, always he which is the first agent, and which ought to do the first' act, shall have the election.” '

And in the case of Smith v. Sanborn, 11 Johns. 59, the rule is-laid d own as follows:

“The right of electing the alternative belonged to the defendant. * * * The right of election by the debtor in all alternative obligations was also a principle in the civil law.”

Therefore, if the right of election in contracts of a civil nature belong to a defendant, or to him who is the first agent, and who ought to do the first act, how much more fully and unquestionably should that right belong to and be accorded to a man who is being-prosecuted in a proceeding which is of a quasi criminal nature, as-bastardy proceedings are. The principal, Charles Moore, therefore, in whose behalf this undertaking was given, must be held to have had the right to make the election as to which one of these several alternatives or conditions he would comply with. And, it being alleged in the answer of defendants, and admitted by plaintiff (and it cannot now be questioned), “that he did appear at the next court of sessions held after his arrest, to which the magistrates making the order and receiving the undertaking had transmitted the same, at its opening on ¡December 4, 1893, to answer the charges and obey its order, but that the case was not called and no record was made,”—can it properly be held that he did not comply with the terms of this undertaking? ¡Now the alternative in the undertaking which he' selected and undertook to obey required that he appear at the next court of sessions of said county to answer the charge and obey its orders thereon; and, if he did this, then the -sureties were exonerated from liability on the undertaking.

The learned counsel for the respondent contends, and cites several cases which he claims support such contention, that the answer, and the defense made under it, were insufficient, for the reason that such answer should have alleged that said Charles Moore did appear, and did answer, and that the defendants should have made their proof accordingly. But this was unnecessary because the undertaking only required “that the said Charles Moore will appear at the next court of sessions to obey its orders thereon,” in accordance with the provisions contained in subdivision 2 of section 851, cited-above; and by so doing he did all that the undertaking, or the law under and by virtue of which it was given, required of him. If the case had been called, and a record made thereof, and he had not appeared, then the position of the respondent might be correct; but it is of no force under the admitted facts of this case. A party bound to appear at a court of criminal jurisdiction, and answer what shall be objected against him, forfeits his recognizance if he departs without leave; and it is no answer, to a suit on the recognizance, that he appeared and was ready to answer, if, at a subsequent day of the court, he did not appear when demanded. People v. Stager, 10 Wend. 431. Here there was an appearance on the proper day and time, and there is no pretense that the people, or any one having the right to do so, appeared at the next court of sessions mentioned in this undertaking, or at any subsequent term thereof. Hence it would not have aided the respondent’s position in the least had it been alleged or shown that said Charles Moore remained in court during its entire session, and also attended each subsequent session thereof, as no action was ever taken therein in behalf of the people in the bastardy proceedings against him, and such failure operated to exonerate the sureties from liability on the undertaking.

Por these reasons alone, even assuming that-the undertaking was valid in all resnects, the sureties, who are the defendants herein, were relieved from liability, and the judgment recovered against them herein should be reversed, with costs, and an order is directed to be entered accordingly.


author: VAN BRUNT, P. J.

text:
    American Forcite Power Manufacturing Company, App'lt, v. John Brady, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 24, 1896.)
    1. Sale—Implied wakbamtt.
    Where the vendor is not the manufacturer, and the purchaser knows this fact, he is not, in the absence of proof of an express warranty or of fraud or deceit upon the part of the vendor, responsible for latent defects.
    3. Same.
    Under such circumstances, the rule of caveat emptor applies.
    3. Same.
    A dealer does not impliedly warrant against latent defects, except where the sale of the article by him is in and of itself legally equivalent to a positive affirmation that the article has certain inherent qualities inconsistent with the alleged defects.
    Appeal from a judgment on a verdict in favor of defendant, and from an order denying a motion for a new trial.
    A. H. Smith, for app’lt; S. G. Adams, for resp’t.
   VAN BRUNT, P. J.

This action was brought to recover an alleged balance due upon an account for goods, wares, and merchandise claimed to have been sold by the plaintiff to the defendant. The answer admitted the purchase of certain goods specified in the complaint during the times therein stated, and alleged as a counterclaim and set-off that the goods so purchased by him were for blasting purposes, of which fact the plaintiff was well aware at the time of the sale, and sold to defendant said goods to be used for such purpose, warranting the same to be fit and suitable therefor, and that, relying upon such warranty, the defendant accepted the goods; that a portion of the goods were entirely worthless, and unfit for such purpose, and the defendant in the use thereof sustained great damage, for the amount of which judgment was prayed. At the commencement of the trial, when objection was taken to certain testimony as to the use'of this merchandise, the court laid down the rule of law which was to govern the progress of the trial, and stated that he did not understand that there was any express warranty, except that the defendant bought the powder for blasting and the plaintiff knew it was for blasting, and, if the plaintiff sold it for blasting, there was an implied warranty that it was suitable for blasting. Exception was taken to this ruling, and the trial proceeded upon the basis that, if the plaintiff knew that these goods were to be used for blasting, there was an implied warranty that they were suitable for such purpose. There is no proof that the defendant understood the plaintiff to be the manufacturer of these goods. Indeed, the evidence shows that he knew that the plaintiff was simply a dealer in the goods, purchasing them from the manufacturers, and delivering them to purchasers in the same condition and in the same packages in which they purchased them from the manufacturers. As we understand the law to have been established by a long line of decisions, the latest of which seems to be the case of Gentilli v. Starace, 133 N. Y. 140; 44 St. Rep. 60, it is that where the vendor is not the manufacturer, and the purchaser knows this fact, in the absence of proof of an express warranty, or of fraud or deceit upon the part of the seller, he is not responsible for latent defects. In the ease of a purchase of this description the purchaser knows that the dealer relies upon the character and reputation of the manufacturer, and the purchaser has the same opportunity of determining as to any latent defects in the merchandise as the seller; and consequently, under such circumstances, the rule of caveat emptor applies. But where goods are manufactured for a specifis purpose, there the person manufacturing them has the opportunity of knowing how the goods are made, whether there are any latent defects or not; and the law raises an implied warranty upon the part of the person manufacturing goods for a specific purpose that they are suited for that purpose. Our attention is called by the learned counsel for the respondent to the eases of Swain v. Schieffelin, 134 N. Y. 471; 47 St. Rep. 910, and Van Wyck v. Allen, 69 N. Y. 71, as establishing the proposition that, where goods are sold for an express purpose, known to the vendor, there is an implied warranty against latent defects rendering them unfit for such purpose. The cases cited, however, establish no such proposition. Swain v. Schieffelin was the case of a manufacturer, and in Van Wyck v. Allen there was an express warranty. The rule seems to be well established that a dealer does not impliedly warrant against latent defects, except where the sale of the article by him is in and of itself legally equivalent to a positive affirmation that the article has certain inherent qualities inconsistent with the claimed defects, as in the case of the sale of provisions for do-mestic use. We think, therefore, that the learned court erred in holding that there was an implied warranty, the goods in question not having been manufactured by the plaintiff.

The judgment should he reversed, and a new trial ordered, with costs to the appellant to abide the.event.

All concur.


author: PATTERSON, J. INGRAHAM, J.

text:
    John I. Blair, App'lt, v. George Hagemeyer et al., Resp'ts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 17, 1896.)
    Appeal from an order making an assignee for creditors of defendant.
    Clarence E. Mitchell, for app’lt; William C. Beecher, for resp’t.
   PATTERSON, J.

For the reasons stated in the case of Bank v. Hagemeyer (decided herewith), 38 N. Y. Supp. 626, the order-appealed from should be affrmed, with costs.

WILLIAMS and O’BRIEN, JJ., concur.

INGRAHAM, J.

(dissenting). The questions here involved are the same as those discussed in the case of Bank v. Hagemeyer (herewith handed down), 38 N. Y. Supp. 626, and for the reasons therein given I am of the opinion that the order should he - reversed.

VAN BRUNT, P. J., concurs.