author: Dates, P. J.:

text:
    FRANKLIN W. BROOKS, Appellant, v. CHRISTIAN A. STEEN, Impleaded, etc., Respondent.

      Pan't/y plaintiff — fail/wre to testify on trial.

    Where a plaintiff, haying personal knowledge of the transaction which is the foundation of the action, does not appear or testify on the trial, it is proper for the court to charge the jury, that if they find his absence to he a suspicious circumstance, and that it was plaintiff’s duty to have testified and given to the jury all he knew in regard to the transaction, that then they must assume that the reason he had not done so, was, that he was afraid to do so, and it must he taken as a suspicious circumstance, throwing suspicion upon his case.
    Appeal from a judgment in favor of the defendant, entered on a verdict. Tbe question in the case was upon the propriety of the following portion of the judge’s charge:
    “ It is claimed on the part of the defendant Simon, that it is a very extraordinary circumstance, in view of the defense set up in this case and the circumstances surrounding the inception of the note, that Brooks has not made his appearance in the court-room, and that he has not been examined as a witness. It appears that Brooks did know what the transaction was, and that it was made by himself; but he has not been called as a witness. That is a circumstance for you to consider; whether Brooks’ absence is a suspicious circumstance. If you find it is, and that it was his duty to have testified, and given you all he might know in regard to the transaction, then you must assume that the reason he has not done so, is that he was afraid to do so, and it must be taken as a suspicious circumstance, certainly, throwing suspicion upon his case.”

      JD. M. Porter, for the appellant.

      A. J. Vcmderjpoel, for the respondent.
   Dates, P. J.:

The plaintiff brought this action upon a note given to himself, made by the defendant Steen, and signed with his name. He alleged that the note was in fact made by all the defendants as copartners, and in substance that the name “ Christian A. Steen ” was their firm name.

There was abundance of evidence in the case to throw suspicion upon the character of the transaction. Brooks, the plaintiff, did not appear on the trial, and was not sworn as a witness. Prom his own averments in the complaint, it appears that he knew what the transaction was upon which the note was given, and that it was made by himself, personally.

The court submitted to the jury whether his absence as a witness was in fact a suspicious circumstance, and told them that if they found that it was a suspicous circumstance, and that it was Brooks’ duty to have testified, and given to the jury all he knew in regard to the transaction, that then they must assume that the reason he had not done so, was, that he was afraid to do so, and must be taken as a circumstance throwing suspicion upon the case.

Whether this part of the charge was erroneous or not, is the only question made by the appellant’s counsel. We think it was not erroneous, and that the judge was quite right, under all the circumstances of the case, in submitting to the jury the plaintiff’s absence as a circumstance for them to consider, and in instructing them that if they found such absence to be of a suspicious character, it would certainly throw suspicion upon his ease. The plaintiff must be presumed to have known that his ease was on trial, and, in the absence of evidence tending to explain his non-attendance by reason of inability from any cause, there is no reason for finding fault with the presumptions which the court allowed the jury to indulge. The case is within the principle laid down by the court in Gordon v. The People (33 N. Y., 501), and The People v. Dyle (21 N. Y., 578).

The judgment must be affirmed.

Daniels and Brady, JJ., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    SEMON BACHE and others, Respondents, v. MARGARET PURCELL, Impleaded, etc., Appellant.

      Junior mortgagee— right to foredose junior, after judgment of foreclosure and sale on prior mortgage.

    A junior mortgagee may maintain an action for the foreclosure of his mortgage, notwithstanding the fact that an action to foreclose a prior mortgage, to which action such junior mortgagee was a party, has proceeded to judgment of foreclosure and sale.
    Appeal from a judgment of the Special Term, in favor of the plaintiff.

      W. H. Arnoux, for the appellant.

      G. H. Brewster, for the respondent.
   Davis, P. J.:

This action was brought to foreclose the mortgage of certain premises executed by one Arnoux to one Meehan, and by the latter assigned to the plaintiffs, upon which mortgage the court found the sum of $1,600 principal, with interest thereon from the 1st day of February, 1873, to be due. The defendant, Margaret Purcell, pleaded in bar to said action that, before the commencement of this action, the plaintiffs were made defendants in an action in the Supreme Court between one Innes, plaintiff, and the said Arnoux, and others, defendants, brought to foreclose a prior mortgage on the same premises described in the complaint in this action, and that on or about the 2d day of September, 1873, judgment of foreclosure was duly entered therein, and that thereby the interest of the plaintiff in this action was barred and foreclosed. The court below has found, as facts, that such action was commenced to foreclose a prior mortgage on the same premises; that the plaintiffs in this action were made parties thereto, and were served with summons and complaint, and that judgment for s.ale and foreclosure was entered therein before the commencement of this action; that no sale has been made or had under such judgment, and that an appeal from said judgment was taken and perfected on or about'the 10th of October, 1873. The plaintiffs in this action were made parties to the former action as junior incumbrancers of the premises. The mortgage held by them was not in any manner, nor were their rights and interests in any way set forth, nor was any decree or other proceeding prayed for to establish and foreclose such mortgage. The effect of the judgment of foreclosure and sale on the prior mortgage as between the plaintiffs therein and the plaintiffs in this action, was to determine the priority of the first mortgage as a lien upon the lands, and tci declare that upon a sale of the land, the present plaintiffs should be forever barred and foreclosed' off all rights and equities of redemption in and to the premises. 'It did not, as between the present plaintiffs and the mortgagor, establish the validity of the second mortgage now sought to be foreclosed, nor in any manner determine the rights of the present plaintiffs as against such mortgagor, or against the owner of thé equity of redemption in the lands. The judgment was not, therefore, in our opinion, a bar to any action or proceeding by the present plaintiffs against the mortgagor, or owner of the equity of redemption to enforce the second mortgage; although a sale upon the first decree would, undoubtedly, have had the effect to cut off the rights of the plaintiffs to such a proceeding. The equity of redemption remained, until the sale, in the owner of the fee of the .land who would be entitled to receive its rents, issues and profits, and at any time, before the sale under the first mortgage, to redeem by paying the judgment and costs recovered on the foreclosure. ■ So if, before sale upon the foreclosure of the first mortgage, the plaintiffs shall have obtained judgment establishing their mortgage and their rights thereunder against the mortgagor, and the owner.of the equity of redemption in the lands, they will thereby have entitled themselves to redemption from the first mortgage, by paying the decree entered in the foreclosure suit thereon. Nor do we think that the plaintiffs were obliged, before instituting this proceeding, to await the result of the appeal which had been taken in the first foreclosure suit. Of course all proceedings taken by them will be subject to the prior lien of the decree in the first, suit; and if their suit shall ripen into judgment and proceed to a sale, before the termination of the appeal, such sale must, of necessity, be made subject to all the rights that have been, or may be, established in the former action. The decree itselfj in form, provides that the present plaintiffs shall be barred and foreclosed, upon a sale, by virtue of the decree. If a sale should occur under the first decree at any time pending the present action, there seems to be no doubt that the court would control the proceedings in the present suit, so far as to restrict the rights of the plaintiff to a participation in any surplus which may result upon such sale; or if no surplus result, to take their judgment upon the bond given by the mortgagor, as described in the complaint. Under the present system, in which-the rights of the parties to a final judgment are dependent upon the facts set forth in the complaint, we see no reason why if it should be made to appear to the court by supplemental complaint or answer, that such sale had taken place, and that no surplus had resulted, it would not be entirely in the power of the court to give judgment upon the bond, and thus save the necessity of another action upon that instrument. But while the equity of redemption remained in the mortgagor or the owner of the fee, we see no reason for holding that a decree upon a first mortgage, ipso facto, operates as a bar to prevent proceedings to enforce junior mortgages or judgments.

For these reasons, and for those assigned by the court below, the judgment should be affirmed, with Costs.

Daniels and Brady, JJ., concurred.

Judgment affirmed, with costs.


text:
    MICHAEL H. CASHMAN, Executor, etc., Appellant, v. FERNANDO WOOD, Respondent.

      Eminent domain — proceeds of land taken for — power of sale — right of it'ustee under to.

    A naked power to sell real estate does not autliorize tlie executor, to whom it is given, to maintain an action for an award made for lands taken by right of eminent domain. He must, in addition to tlie power, show that he has some • right to the possession of the money, either for the purposes of administration or as trustee under the will.

      Appeal from an order of the Special Term sustaining a demurrer to the complaint.

      A. O.db M. H. Ellis, for the appellant.

      Devlin, Miller db Trull, for the respondent.
   Davis, P. J.:

The plaintiff sues as sole executor of the last will and testament of Daniel Cashman, deceased, and avers that Daniel Cashman died seized of an undivided half of certain premises described in the complaint, leaving his last will and testament, which was afterward duly admitted to probate, by which he appointed the plaintiff his executor, with others who have failed to qualify, and that by said will and testament said testator gave power to his executor to sell and convey any or all of his real estate; that subsequently the real estate of which the deceased died seized was taken by the City of New York, under the right of eminent domain, for a part of Riverside park; that damages were awarded therefor to “ unknown owners,” pursuant to the statute in such case made and provided ; that the damages so awarded were paid to the Chamberlain of the City of New York; that afterward, by the order of this court, the same were paid to the defendant, and that under and in pursuance of the statutes in such ease made and provided, the defendant became indebted to the said plaintiff in the sum demanded in the complaint. To this complaint the defendant demurs, alleging that the complaint does not state facts sufficient to constitute a cause of action; and that there is a defect of parties defendant. It was held by the court below that the plaintiff, as executor, could not maintain this action, on the ground of the power of sale contained in the will; but that to entitle him to recover the money, it must appear that he has some right to its possession, either for purposes of administration or as a trustee under the will. We think the position of the court below well taken. The power of sale, as stated in the complaint, is a naked one. There are no allegations showing its objects or purposes, and none showing that any tr.ust is created by the will, the proper execution of which would require that the fee of the lands should be invested in the executor or trustee; nor are there any allegations showing that the proceeds of a sale by the executor are necessary for the purpose of paying the debts of the testator in due course of administering his estate. It appears in the complaint that the exercise of the right of eminent domain, by which the lots in question were taken, occurred subsequent to the death of plaintiff’s testator. The effect of that exercise was to deprive the executor of all power to sell and convey the real estate under the will; but we think it would not deprive him of the right to maintain this suit, under proper allegations showing a necessity that the proceeds should come into his hands in his official character, for the purpose of carrying out trusts created by the will, or for the payment of debts in the course of due administration. In the absence of all such allegations, and of all allegations showing the devise of the lands by the will, the law must hold that the title to the real estate, and consequently to the money awarded therefor, is vested in the heirs at law of the testator. Leave was given to the plaintiff to amend upon the usual terms ; and without passing upou either of the other questions discussed in this case, we think the order appealed from should be affirmed, with ten dollars costs, and with the usual leave for the plaintiff to amend upon payment of costs.

Daniels and Brady, JJ., concurred.

Order affirmed, with ten dollars costs, and with leave for plaintiff to amend on payment of costs.


author: Davis, P. J. :

text:
    ELIZABETH HARDEN, Appellant, v. ROBERT H. CORBETT, Respondent.

      Action — when on contract.

    The plaintiff brought this action to recover money placed by her in the hands of the defendant, as her attorney, alleging in the complaint, that the defendant “ received said moneys and securities as her attorney and agent, and promised and agreed to hold the same for her, and to account for and pay over the same to her when demanded.” The complaint also alleged that the defendant had misapplied and appropriated the moneys to his own use. Held, that the action was on contract, and not in tort, and that a reference might properly be ordered therein.

      Appeal from an order denying a motion for a reference, on the ground that the action was one sounding in tort, and therefore not referable. '

      Geo. L. Ingraham, for the appellant.

      Robert Sewell, for the respondent.
   Davis, P. J. :

The court below denied the motion for a reference in this action on the ground, as stated in the opinion of the judge, that tbe action was one sounding in tort, and therefore not referable.” As to the character of the action the complaint is controlling. We think the complaint shows a cause of action on contract for the recovery of money, which the plaintiff alleges she.placed in the hands of the defendant as her attorney and counsel, and for which she demands an accounting. She distinctly alleges that the defendant “ received said moneys and securities as her attorney and agent, and promised and agreed to hold the same for her, and to account for and pay over the same to her when demanded’; ” and she alleges a breach of this agreement. It does not change the character of the action, that she also alleges that the defendant has misapplied and appropriated the moneys to his own use; that is merely another form of alleging a breach of the contract. The decision of the court in Campbell v. Hoge, a note of which may be found in 4 Ilun, §72, is controlling in this case; and we think the authorities establish that, on allegations such as are contained in this case, the action must be considered as one upon contract. (Austin v. Rawdon, 44 N. Y., 63; Conaughty v. Nichols, 42 id., 83; Ledwich v. McKim, 53 id., 307.) The Special Term having denied the motion on the ground of want of power, the order was clearly appealable. We think the order below should be reversed with ten dollars costs, besides disbursements, and the motion in the court below granted. Unless the parties agree upon a referee, the plaintiff may apply to the Special Term, upon the usual notice, for the appointment of such referee.

Brady and Donohue, JJ., concurred.

Order reversed with ten dollars costs,, besides disbursements, and motion for reference granted.


author: Daniels, J.:

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

      Motions in wrest of judgment — House of prostitution — nuisance.
    Motions in arrest of judgment are sustained because of defects in the record, and not because of defects in the evidence.
    A house of prostitution tends to corrupt and deprave public morals and disturb the peace, and for that reason is a common nuisance.
    Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error of a misdemeanor.

      Wm. F. Howe, for the plaintiff in error.

      Benj. K. Phel/ps, for the defendants in error.
   Daniels, J.:

It is insisted that the judgment in this case should have been arrested, because the proof on the trial did not show that the house charged to have been disorderly was situated in the Seventeenth ward of the city of New York, as it was alleged to be by the indictment. This position is very clearly untenable, because motions in arrest of judgment are not supported by mere defects of evidence. They are made upon supposed defects in the record itself, of which the evidence given upon the trial forms no part. (Whart. Grim. Law, §§ 3045-3047.)

The remedy for defective proof is by way of objection and exception, on that account, upon the trial. If that had then been taken, the proof could probably have been at once supplied, and the defect, if any in fact existed, corrected. Without an exception presenting the point, it cannot be raised, after the conviction of the prisoner, in cases of this description. (3 E. S. [5th ed.], 1028, 1029, §§ 23, 27.)

The indictment charged the prisoner with keeping a disorderly house, in such terms as to describe it as a house of prostitution, and the evidence given left no ground for doubting that to have been its character. In addition to that, further proof was given tending to show that the house was noisy and disorderly. At the close of the trial, the prisoner’s counsel requested the court to charge the jury: That it is not sufficient that the prisoner kept a house of prostitution, they must find that it is a public nuisance before they can convict him of the offense charged in the indictment.”

The court held, that if the jury found that what the officer said was true that people were fighting and drinking in the house in question, and that such house he kept as a house of prostitution,” it was within the provisions of the law. The counsel excepted to the charge given, and to the omission to charge as requested, but these exceptions are legally without mejit.

If people were fighting and drinking in the house, and it was also a house of prostitution, the offense charged in the indictment was supported by the evidence.

For that purpose it would have been sufficient to have shown that the prisoner kept a house of prostitution. Its direct tendency was to corrupt and deprave public morals, and disturb the peace, and for that reason it was a common nuisance. That has uniformly been held to he the law. (1 Whart. Grim. Law, § 2392; 1 Bish. Crim. Law, §§ 665, 1046; Jennings v. Commonwealth, 17 Pick., 80; Ros. Crim. Ev. [6th Am. ed.], 735 ; Warren v. People, 3 Park., 544; Lowenstein, v. People, 54 Barb., 299; People v. Carey, 4 Park., 238.) The indictment in the case of Hunter v. Com. (2 Sergt. & R., 297) did not charge the keeping of a house of prostitution, and for that reason it was not within these authorities and the principle which they sustain.

The prisoner in this case was properly convicted, and the judgment should be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


author: Brady, J.:

text:
    WILLIAM KIEFER and others, Respondents, v. DANIEL WEBSTER and others, Appellants.

      Attachment — afftda/oitfor—statement of cause of action in.

    Where an affidavit, upon an application for an attachment, alleges that “the defendants are indebted to us, the plaintiffs, in the sum of $8,260.85, for goods sold and delivered, for which they have promised but failed to pay,” it sufficiently states a cause of action. If the goods were not payable on delivery, but were sold on credit, it rests upon the defendant to show such 'to be the case; it is not necessary for tiie plaintiff to deny that it is so in his affidavit.
    Appeal from order made at the Special Term, denying a motion to vacate an attachment issued in this action.
    Ulman, Rerrmigton & Porter, for the appellants.

      Blumenstiel c& Asoher, for the respondents.
   Brady, J.:

The affidavit on which the attachment was issued in this case is in artistically drawn, and subject to such criticism as to provoke the conviction, at first blush, perhaps, that it is not sufficient for the purpose; but a careful examination of .its contents works a different result. The statements contained in it amount to this, namely : “ The defendants are indebted to us, the plaintiffs, in the sum of $3,260.85, for goods sold and delivered, for which they have promised, but failed to pay.” The amount of the claim is stated, therefore, and the grounds upon which it rests, to wit, goods sold and delivered. It is true that it does not stale that the goods were to be paid for on delivery. It does not disclose the precise nature of the contract, but, in general terms, shows the character of the claim and its amount, specifically. It does not, therefore, state conclusions merely, but facts, of which a certain conclusion must be predicated, namely, that a cause of action exists against the defendants, in favor of the plaintiffs. If the facts set out justify this conclusion, then the necessary elements are present to warrant the granting of the process. It cannot be questioned that the delivery of the merchandise, as stated, at prices agreed upon, created, at once, the obligation to pay such1 prices, and the cause of action arose without reference to the promise to pay. If the goods were sold on a credit which had not expired, it would be a complete answer to the existence of the cause of action averred. If we should demand a more elaborate statement, such, indeed, as would include matters more properly for an answer, it would be necessary to anticipate and overcome ^ subjects of defense, which would require no proof from the plaintiff at the trial, upon an issue framed. If, for example, upon that occasion, it were proved that the plaintiffs sold and delivered to the defendants goods at prices agreed upon, the former would be entitled to a verdict, unless the defendants sustained some good defense, properly inter- ■ posed. The plaintiffs could rest upon such evidence, and challenge the defendants to respond. The affidavit states a cause of action existing; specifies the amount of the claim and the grounds thereof, and is, therefore, sufficient. The order appealed from should, for these reasons, be affirmed, with ten dollars costs and disbursements.

Donohue, J., concurred.

Order affirmed, with ten dollars costs, and disbursements.


author: Daniels, J.

text:
    MARY McVEY, Respondent, v. MARY A. CANTRELL, Appellant.

      Ma/rried woman, — what constitutes change upon sepa/rate estate.

    Advancing money for the payment of interest on outstanding mortgages on the real estate of a married woman, and, in that way, protecting such estate from a sale under foreclosure, is such an improvement of its condition as to render it chargeable with the money loaned and advanced for that purpose, and. an action may be maintained against her upon a promissory note given therefor; and after being equitably charged, in that manner, the subsequent appropriation of the money by her to another object, as to the support and maintenance of her family, cannot change the rights or divest the security of the lender. {Scott v. Conway, 58 ÍT. Y.f 619; Manhattan Brass Co. v. Thompson, id., 80; Bodinev. Killeen, 58 id., 98; Quassaie Mat. Banlcv. Waddell, 8 S. O. [1 Hun], 125.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Henry H. Morange, for the appellant. Daniel T. Robertson, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and JBbady, J., concurred.

Judgment affirmed, with costs.


author: Brady, J.

text:
    CHARLES E. STRONG, Receiver, etc., Respondent, v. THE NEW YORK LAUNDRY MANUFACTURING COMPANY and others, Appellants.

      Bequest by defendant far dwectwn of verdict— effect.

    Where a defendant requests the court to direct a verdict in his favor, he thereby assumes that there is no dispute as to the facts, and allows the justice presiding to be substituted in the place of the jury, and is concluded by his findings. He cannot, therefore, upon appeal under a general exception to the subsequent direction of a verdict in favor of the plaintiff, insist that there were questions in the case which should have been submitted to the jury. {Winehell v. Hicks, 18 N. Y., 558; Marine Bank v. Olements, 31 id., 33; O’Neill v. James, 43 id., 85; Stone v. Flow&r, 47 id., 566.)
    . Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.

      Robert Sewell, for the appellants. S. P. Nash and John L. Oadamlader, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed.


text:
    SIMON SALOMON, Respondent, v. MARCUS VAN PRAAG, Appellant.

      Action to recover goods obtained through fraud — demand — when not neaessa/ry.

    Where an action is brought to recover goods fraudulently obtained, against one who is not a bona fide purchaser from the original vendee, no demand is necessary before the commencement of the action. The tortious acquisition of the property by the first vendee affects the subsequent purchaser as well as the original taker, and he is equally a trespasser or tort feasor. (Gillett v. Roberts, 57 N. Y., 33 ; Fly v. Fhle, 3 id.,508 ; Tednain v. Swart, 4 Lans., 269.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Thomas Dcvrlington, for the appellant. Lewis Sanders, for the respondent.
   Opinion by

Brady, J.

Davis, B. J., and Daniels, J., concurred.

Jndgment affirmed.


text:
    HENRY H. MORANGE, Appellant, v. ALBERT B. WALDRON, Impleaded, Respondent.

      Order of arrest — Oode, § 179.
    The complaint in this action alleged that the defendants were auctioneers, and as such “ sold and delivered, for the account of the plaintiff, divers pieces of furniture; ” that they “ received for the account and benefit of the plaintiff, in their capacity of auctioneers, the sum of $271.78, and that there remains due and owing from the defendants to the plaintiff the sum of $210.67, with the interest from 26th April, 1872, and which said sum hath been often demanded but refused.” Judgment having been entered by default, an execution against the person was issued, no order of arrest having been made in the action. Held, that the execution was properly set aside; that it did not appear from the complaint that it was the .duty of the defendant to pay over the identical money received, but simply that he had received a certain sum of money, on account, of the plaintiff, which he could pay with any funds, subject to his use and control.
    To render a person liable to arrest, under subdivision 2 of section 179 relating to money received in a fiduciary capacity, the identical money received must be the property of the creditor. (State v. Kmg, 8 How., 298; Republic of Mexico v. Arungois, 5 Duer, 634; BuqwiclY. Kckoa/rds, 50 Barb., 288; Wood v. Henry, 40 N. Y., 124; Lewis v. Passer, 58 id., 260; 1 Wait’s Prac., 612-622.)
    Appeal from an order made at the Special Term setting aside an execution against the person, and discharging the defendant from custody.

      Henry H. Morcmge, appellant, in person. John D. Shedloclc, for the respondent.
   Opinion by

Daniels, J.

Davis, P. J., and Brady, J., concurred.

Order modified by requiring defendant to stipulate not to bring an action for false imprisonment; and as so modified affirmed, with ten dollars costs and disbursements.


author: Davis, P. J.

text:
    HENRY BREWSTER, Respondent, v. JOSEPH MANNING, Appellant.

      Stipulation — when it admits plaintiff’s case.

    Appeal from a judgment in favor of the plaintiff entered on the report of a referee.
    Upon the trial, the plaintiff relied upon a stipulation, as an admission of his cause of action, set forth in the complaint, and of the value of his services, as therein alleged. In these respects, the stipulation was as follows:

      “ The defendant hereby stipulates not to dispute, on the trial of this action, the rendering of the services and making the disbursements by the plaintiff for the defendant, as charged in the complaint, and the amount and value of the same, as in the complaint alleged, without prejudice to the counter-claim set up in the defendant’s answer.”
    The court held, that the referee was right in holding this to be, in fact, an admission that the plaintiff had rendered the services and made the disbursements charged in the complaint; and that the amount and value thereof were the sum alleged in the complaint, and entitled the plaintiff to judgment, unless the defendant established the counter-claim set up in his answer. And that, it would be too narrow a construction of this stipulation to hold that its sole object was to prevent the defendant from disputing the plaintiff’s alleged cause of action,, after he should have proved the same by satisfactory evidence.
    The court further held, that it was not necessary, to prove the signature of the'attorney to the stipulation; nor that he was, in fact, the attorney of the defendant. If there were any doubt upon either of these questions, it was for the defendant to show that the attorney who subscribed the stipulation was not his attorney in the action ; or that the signature purporting to be his was not genuine.

      Jesse K. Furlong, for the appellant. Henry Brewster, respondent, in person.
   Opinion by

Davis, P. J.

Daniels and Brady, JJ., concurred.

Judgment affirmed.


text:
    FREDERICK L. BERRINGER, Respondent, v. LOUIS WENGENROTH, Appellant.

      Tender of assignment of judgment — necessary to maintenance of action to recover of notes on which it is the consideration.

    Appeal from a judgment entered on the verdict of a jury.
    In this case the plaintiff sought to recover upon one of two notes, given by the defendant to George Fulling, the consideration for which was the assignment of a judgment held by him against William Wengenroth, the defendant’s brother. The first note was paid. The issue upon the trial was, whether the assignment of the judgment was to be made after the payment of the first note, or on the payment of both. It appeared, however, on the trial, that subsequent to the maturity of the note in suit, it was transferred to the plaintiff, and the judgment assigned to him also. There was no offer made by him to assign the judgment, at any time, and when, upon the close of the case, the judge was requested to charge that he could not recover without such an offer, the request was refused and exception taken to the ruling thus made. The consideration of both notes was the assignment; it was the whole consideration.
    The court held, that if either party would sue upon this agreement, the plaintiff for not paying or the defendant for not transferring, the one must aver and prove a transfer or a tender, and the other a payment or a tender. (Per Holt, Ch. J., Gallenovel v. Briggs, 1 Salk., 112 ; Payne v. Lansing, 2 Wend., 525.)

      D. M. Porter, for the appellant. LLenry Dailey, for the respondent.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

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


text:
    ELLIOTT C. COWDEN et al., Respondents, v. ALFRED TEALE, Appellant.
    Appeal from an order made at the’ Special Term granting a. reference.
    In this case, the plaintiff’s claim rested upon an account embracing many items. The defendant admitted the items to be correct, but alleged that they related to merchandise which was to be sold by the plaintiff on commission, that he had violated the rights of the defendant by selling it at improper times, and for less than its value. The account of the plaintiffs embraced advances, commissions and charges in reference to this merchandise. The defendant interposed a counter-claim, relating to it exclusively. The General Term held, that, in order to sustain his claim, which was based upon the contract made between him and the plaintiff, it would be necessary for the defendant to show that each sale of the article sold was improperly made. That this would involve proof of the value of the article, and the circumstances showing the sale to have been disadvantageous and improper. That the effect of this was to assail the plaintiff’s account, because, though the advances and charges are admitted, the sales are questioned and disputed ; and that thé case was, therefore, properly referred.

      H. O. Southworth, for the appellant. John D. Taylor, for the respondents.
   Opinion by

Brady, J.

Davis, P. J., and Daniels, J., concurred.

Order affirmed.


author: Gilbert, J.:

text:
    JOSEPH HETZELL, Plaintiff, v. WILLIAM C. BARBER, Defendant.

      Devise of real estate — power of sale — conveyance by beneficiary — cha/p. 482, of 1871 —power of surrogate over testamentary trustees — mortgage—tender.
    A testatrix by her will devised an undivided two-thirds of certain real estate to her two daughters, absolutely, appointing her husband executor, and authorizing him to sell and convey the same, and invest the proceeds for the benefit of her daughters, to be paid tó them, with any accumulations thereon, as they respectively arrived at the age of twenty-five years. The plaintiff brought this action to recover the premises, claiming under a deed from the executor, made in execution of the power. The defendant claimed under a prior deed, executed to him by the two daughters. Held,, that the legal estate passed to the plaintiff by the conveyance from the grantee of the power, and that the conveyance by the daughters merely operated to substitute the defendant in their place as the beneficiary under the power.
    The testatrix devised the other undivided third of the land above mentioned to her husband, and appointed him executor. February 21, 1869, he sold his interest to the plaintiff, the deed not being recorded until December 27, 1871. May 11, 1869, a judgment was recovered against the husband, and his interest therein was, on January 14, 1870, sold by the sheriff to Pingree, who, on the twenty-eighth of January, assigned the certificate of sale to the defendant, the assignment being recorded April 17,1871. Held, that the conveyance by the sheriff was, in legal effect, equivalent to a conveyance by the husband himself, and that the title of the grantee thereunder was superior to that of the plaintiff claiming under the unrecorded deed.

      Prior to the passage of chapter 482, of 1871, surrogates had no power to remove a testamentary trustee or grantee of a power.
    Where no notice of the assignment of a mortgage has been given to the mortgagor, a tender to him of the amount due on the mortgage extinguishes the lien of the mortgage as effectually as payment thereof.
    Motion for a new trial on exceptions, ordered to be heard in the first instance at the General Term, after a verdict directed by the court.
    This was an action of ejectment for the recovery of the possession of real property, lying in the city of Auburn, Cayuga county, both parties claiming title from the same source, to wit, through Louisa Easterly, deceased, who died seized of the premises, at Auburn, April 10, 1866, leaving her last will and testament, together with her codicil thereto appended in due form, the material portions of which were as follows :
    “ Third. As for the said Dennis place (the premises in question), lying south of and adjoining the foregoing, consisting of about four acres of land, fronting on William street, I hereby give, grant and devise the same in equal parts to my said husband, John M. Easterly, and my two daughters, Emma E. and Anna L. Easterly, share and share .alike ; to whom, also, in the said equal proportions, I give and bequeath all my personal property of every kind and description.
    “Fourth. I nominate and appoint my said husband, John M. Easterly, sole executor of this, my last will and testament, and testamentary guardian of my said children, hereby authorizing and empowering him, at and after my decease, to sell and convey (both as owner and executor), by his deed, the whole or any part or parts of the said Dennis place above described, to any person or persons, and thereby giving good and sufficient title to the same; and I hereby order and direct my said executor, in case he makes such sale, to invest the portion of the proceeds .going to my daughters in some good securities, and keep the same invested for them until after they severally become of the age of twenty-five years, when the same is to be paid to them, with any accrued accumulation of interest, the same to be the separate property of each of them respectively, and to be held free from the control or directions of their husbands, or of any other person.”

      Tlie will and codicil were duly admitted to probate before the surrogate of Cayuga county, February 23, 1867, and letters testamentary duly granted to John M. Easterly, as sole executor, the same day, who accepted the trust, and entered upon the full discharge of the duties pertaining thereto.
    The trustee caused the entire premises to be surveyed, plotted and laid off into twenty-five different divisions for building purposes, and a map of the same to be made and filed in the Cayuga county clerk’s office, as early as February 6, 1868, showing the exact boundaries of each lot.
    February 20, 1869, John M. Easterly sold and conveyed his individual interest in the premises in question, to the plaintiff, for the consideration of $4,000, which deed was not recorded till December 27, 1871. At the time of the excution and delivery of this deed to plaintiff, there were no judgment liens existing upon the premises. Subsequently, and May 11, 1869, The Cayuga County National Bank obtained, and caused to be docketed, a judgment against the said Easterly for $1,117.42. January 14, 1870, the sheriff of Cayuga county, to satisfy this judgment, sold such interest as he had in the premises at the time the judgment was docketed to John T. Pingree. Subsequently, January 28, 1870, Pingree assigned his certificate of sale to defendant, the assignment not being recorded till Apiil 17, 1871.
    April 27, 1870, the trustee sold and'conveyed, under the terms of the will, as executor, etc., what purported by the terms of the conveyance to be the entire fee in the lands in question to plaintiff ; no mention was made in this deed of the former conveyance to plaintiff, of the undivided one-third, February 20, 1869, nor was there a reservation as to that one-third, which plaintiff already owned under his unrecorded deed, though in the second or last deed the consideration was raised to $16,000, which covered the $4,000 consideration expressed in the former deed. This deed, from the executor and trustee to plaintiff, in terms conveying the entire premises, was duly recorded June 4,1870. Prior to this, andFebruary 8,1870, the defendant obtained from the cestui que trusts, Anna L. Easterly and Emma F. Bainbridge (formerly Emma F. Easterly), the two daughters, a warranty deed, purporting to convey an undivided two-thirds of the premises in question. At the time of this negotiation, and the alleged conveyance by the cestui que trusts, they had not attained to the age of twenty-five years.
    The defendant on the trial read in evidence a mortgage on the premises in question, executed by Louisa Rathbun (who was the grantor of Mrs. Easterly) to Anna Storm, dated and recorded in 1854, and assignments of the same to the defendant.
    The plaintiff gave evidence, in reply, for the purpose of showing a tender of the amount due thereon to one Briggs, the defendant’s assignor.

      Whitney & Lamoree, for the plaintiff.
    The deed from the cestui que trusts to the defendant was no moi'e than a deed of subrogation ; he, at most, was only stepping into their shoes, and taking the land as they held it, to wit, subject to the execution of the power, and he is entitled to no more than the avails after an execution of the power. (Reed v. Underhill, 12 Barb., 113; 4 Kent’s Com., 355; Joseph TIetzell v. Owen M. Easterly, Fourth Dep., Jan. Teirn, 1873, not reported; Downing v. Marshall, 23 N. Y., 379, 380.) The daughters could convey no more than such title as they possessed, and could by no act of their own, defeat the power vested in the trustee, and that which they cannot do their alienee cannot do for them. (5 Mass., 242; Willis v. Sherral, 1 Atk., 479;-4 Kent’s Com. [7th ed.], 355, 356 [star paging 339], and cases cited.) Their deed must be taken subject to the powers contained in the will. {Downing v. Ma/rshall, supra ; N. 7. Dry Dock Oo. v. Stillman, 30 N. Y., 182; Grittenden v. Eairehild, 41 id., 289; Kinner v. Rogers, 42 id., 531; Skinner v. Quirm, 43 id., 99; 3 R. S. [5th ed.] 26, § 127.) Every person dealing with the land is charged with notice of the contents of the will, and the nature and object of the interests of the several devisees therein. {Hetzel v. Easterty, supra.) It is a well settled rule of law in this and other States, that a subsequently docketed judgment lien cannot prevail as against an unrecorded deed. (4 Kent’s Com., 181 [star paging, 173]; Schmidt v. Hoyt, 1 Edw. Ch., 652.) The sheriff’s deed was limited to such interest only as J. M. Easterly had, or had subsequently acquired at the time judgment was docketed, or since May 11, 1869. (4 Paige, 15; Tallmcm v. Farley, 1 Barb., 280; 1 Hare, 547; 3 R. S. [5th ed.], 30, § 163 ; as to sheriff’s deed, see
      Sage v. Cartwright, 5 Seld., 49; 1 R. S., 739, § 143.) The purchaser at sheriff’s sale is not protected by the recording act, unless the grantor had some interest which could pass by the prior recorded deed, under which the purchaser claims the protection of the acts. (Jackson ex clem. Stewart v. Town, 4 Cow. [foot pag.] 598, and opinion by Woodworth, J., 603-607; Bigelow v. Fink, 17 Barb., 394, last half p. 396 ; JDickmson v. Smith, 25 id., 102.)

      John T. Pingree, for the defendant.
   Gilbert, J.:

Both parties claim under the will of Mrs. Easterly, whereby the testatrix devised the premises in controversy, in equal parts, to her husband John M. Easterly, and her two daughters, Emma E. and Annie L. Easterly, absolutely, and, whereby she also devised another parcel of land to her said daughters as a home, subject to a life estate therein, which she gave to her husband. The testatrix appointed her husband sole executor of her will, and empowered him, “ at and after her decease, to sell and convey” the premises involved in this suit, and ordered and directed him to invest the portion of the proceeds going to her daughters in some good securities, and keep the same invested for them, until after they severally became of the age of twenty-five years, and then to pay the same to them with any accrued accumulation of interest. By a codicil she extended that power of sale to the other parcel, and authorized her said executor to sell either or both of them, in his discretion, and to invest the proceeds in any way which he might deem advantageous to the interests of her children and himself. This power of sale was clearly a general power in trust; and as such was expressly authorized by the statute of powers. (1 R. S., 734, §§ 94-96.) It vested no estate whatever in the executor; nor did it, in any manner.or degree, limit -or qualify the estate in fee devised to the daughters. In short, it conferred upon the executor a bare authority to sell the shares of the daughters for their exclusive benefit, and required him to invest the proceeds and to pay them to the daughters on their arriving at the age of twenty-five years.

The estate in fee devised to the daughters vested in them, subject to the power, and the sanie estate passed to the defendant, by virtue of their conveyance to him, dated February 8th and recorded March 9th 1870, subject also to the execution of the power. (Blanchard v. Blanchard, 11 N. Y. S. C. [4 Hun], 287.) This conveyance is prior to that made by the executor to the plaintiff, under which the latter claims the shares devised to the daughters, and the title of the defendant to those shares must prevail over that of the plaintiff, unless the title of the defendant has been cut off by the execution of the power. It sufficiently appears, we think, that the defendant purchased with notice of the power. As to him, therefore, the power was a lien on the lands which he purchased from the time the will took effect. (1 R. S., 735, § 107.) It is contended, however, that when the daughters became twenty-one years of age they had the right of election to take the thing given as land or as money, and that the sale of the land was a conclusive election to take it as land. This doctrine of election may be applied where there has been an equitable conversion of land into money, of money into land. Here, however, there was no conversion, because a mere discretionary power of sale does not produce that result. To constitute a conversion of real estate into personal without an actual sale, it must be made the duty of the grantee of the power to sell it in any event. ( White v. Howard, 46 N. Y., 162.) Parting with a thing is not very cogent evidence of an election to keep it; but passing that, here no occasion for an election to take laud was afforded, for the devise was directly to the daughters, and already vested iu them a legal estate in fee in the lands, nolens volens ; but such estate was liable to be divested by an execution of the power of sale granted to the executor. The question, then, is whether those devisees could, by conveying their estate, annul the power. There would seem to be no object for the exercise of a bare power to sell lands devised in fee to one person, when the entire proceeds of the sale are directed to be paid over immediately to the devisee. The grantee of the power would be bound to sell for the best price he could get, and no one could compete with the devisee, for the reason that he, being entitled to all the proceeds of the sale, could out-bid all other buyers, and so insure the preservation of his estate in the land. But where, as in this case, the land is devised to several tenants in common, subject to a power of sale, and they are not entitled to the immediate payment of the proceeds of a sale under the power, but the power is iu trust to invest the proceeds, and to pay the same, with the accumulated interest, to the devisees, only after the lapse of a specified period, there is a worthy object for the power. It imposes a duty or trust upon the grantee thereof, which the grantor had a right to create, and which the court is bound to carry into effect. In such a case the devisees take undivided shares in the land, but by virtue of the power in trust each devisee acquires an equitable interest in the fund to be raised by a sale, and either might compel an execution of the power against the wishes of the others, and so obviate the necessity of partitioning the estate. As a means of distribution, therefore, such a power ought to be upheld. It is the duty of courts also to carry out the intention of the testatrix. We think it is quite clear that she intended that her daughters should not receive the proceeds of a sale of the land, until they severally arrived at the age of twenty-five years. That is the time when the grantee of the power is directed to pay such proceeds to them. To hold' that they might themselves before that time sell the land and receive the proceeds of the sale, and by those acts supersede the authority conferred by the testatrix on the grantee of the power, and the trust upon which it was granted, would violate her will, and would, for that reason, be contrary to law. Without pursuing the subject further, it will be sufficient to refer to the following cases where the position we have assumed was fully sustained by the Court of Appeals : Crittenden v. Fairchild (41 N. Y., 289); Kinnier v. Rogers (42 id., 531); Skinner v. Quin (43 id., 99). These cases appear to be decisive of the claim of the defendant, respecting the parcel conveyed to him by the daughters. That conveyance operated, after the execution of the power, merely to substitute him in equity in their place, as the beneficiary under the power. The legal estate passed to the plaintiff by the conveyance from tlie grantee of the power, and the defendant became entitled to the proceeds of the sale thereof, because, upon an obvious principle of equity, such proceeds belonged to him rather than to the daughters.

We have not examined the evidence offered to prove that the executor had been superseded in his office by the order of the surrogate, made in 1869, for, as the law then stood, no' order made by the surrogate could affect him in his capacity of grantee of the power. The statute then explicitly provided another remedy for the removal of a grantee of a power, who had violated or threatened to violate his trust, or who should be insolvent, or whose insolvency should be apprehended, or who for any other cause should be deemed an unsuitable person to execute the trust. It must have been done by the Supreme Court, on petition or bill in equity. (1 R. S., 734, § 102; id., 730, § 70; Laws 1847, 323, § 16.) Since that time, however, the legislature has conferred upon surrogates authority to require testamentary trustees and guardians to give security, and to remove them. (Laws 1871, chap. 482.) Our conclusion, therefore, is that the plaintiff acquired a valid title to the shares devised to the daughters by virtue of the executor’s conveyance to him, and that the conveyance by the dairghters to the defendant, being subject to the power, had no effect upon the estate devised to them after the power had been executed by the deed to the plaintiff.

The claim of the defendant to be a mortgagee in possession, was, we think, completely refuted. The tender of payment of the mortgage extinguished it. No notice having been given of the assignment of the mortgage by Briggs, a payment of the mortgage debt to him would have been valid, and a tender of such payment to him was as effectual to extinguish the lien of the mortgage as an actual payment. (Kortright v. Cady, 21 N. Y., 343; Reed v. Marble, 10 Paige, 413.)

Nor did the court err in refusing to submit to the jury the question whether the conveyance under which the plaintiff claims was fraudulent. That defense is not pleaded. Most of the testimony on that subject consisted of acts of Easterly alone. The most significant were the leasing of the property to the defendant and the institution of a suit for the partition of it after he had conveyed it to the plaintiff. In the absence, however, of proof connecting the plaintiff with those acts, they furnish no evidence against him.

With respect to the remaining one-third of the premises in controversy, we are of opinion that the power, so far as It related to this share, did not affect the rights of the creditors of Easterly, and that the conveyance from the sheriff to the defendant must prevail over the prior unrecorded deed made by Easterly to the plaintiff in execution of the power. The judgment was a lien on the share of the land devised to him (Code, §§ 283, 462), and the statute regulating the recording of conveyances, etc., expressly declares that an unrecorded conveyance shall be void as against any subsequent purchaser in good faith and for a valuable consideration, whose conveyance shall be first duly recorded. (1 R. S., 756, § 1.)

We must assume that the defendant was such a purchaser, for the plaintiff having, upon the trial, relied wholly upon legal grounds to avoid the effect of the conveyance to the defendant, and omitted to suggest that there was a question of fact involved in that subject,- is precluded from taking tiie objection that the court did not submit the matter to the jury. The conveyance of the sheriff pursuant to the power given him by the statute relative to sales under executions, was, in legal effect, equivalent to a conveyance by Easterly himself. (2 R. S., 373, § 62; 3 Wash. C. C., 550; 2 N. & McC., 105; 13 Rich. Eq., 222-239.)

To say that Easterly having parted with his estate in the land, there was nothing for the sheriff to sell, merely begs the question. He could by his own deed pass a good title to the land to a subsequent bona fide purchaser, notwithstanding he had previously conveyed the same land to the plaintiff. A sale of the land on execution against him to a bona fide purchaser and a conveyance to the latter pursuant thereto, stand on the same footing. In both cases the subsequent purchaser acquires a valid title because as against him the prior unrecorded deed is void, and being void the estate remained in the grantor. (Jackson v. Chamberlain,, 8 Wend., 620 ; Jackson v. Post, 15 id., 588; Hooker v. Pierce, 2 Hill, 650.) The fact that the conveyance made by Easterly as grantee of the power, which included this share, was recorded before the sheriff’s deed to the defendant, does not affect the rights of the latter. The language,' whose conveyance shall be first duly recorded ” used in the statute, evidently means the deed by which the title is transferred, and not a deed which is inoperative for that purpose. This conveyance was of the latter character. Easterly’s share in contemplation of law, was not embraced in the power. On the contrary the devise of this share vested the legal estate in Easterly absolutely, and it was in no sense subject to the power granted to him. Before the Revised Statutes a power added to the fee would have been void. (Goodill v. Brigham, 1 B. & P., 193; Maundrell v. Maundrell, 7 Ves., 583.) So now in this case, as to the share of Easterly, the power merged in the fee. For the statute of powers provides that “ in all cases where an absolute power of disposition is given and no remainder is limited on the estate of the grantee of the power, such grantee shall be entitled to an absolute fee,” and it declares that every power of disposition shall be deemed absolute by means of which the grantee is enabled in his lifetime to dispose of the entire -fee for his own benefit. (1 R. S., 733, §§ 83-85.) Here an absolute fee was devised to Easterly, and then a power to sell the estate so devised was granted to him, with a direction, necessarily implied, to receive the proceeds of the sale and retain them for his own benefit. Such a power is not authorized by the statute of powers, and it was simply nugatory so far as it affected the undivided share of Easterly, and the recording of a conveyance, made by him in execution of the power, which did not operate to transfer a present estate, nor to confirm the previous grant made by him individually, was also nugatory.

There are other exceptions which were not urged on the argument, and which we do not deem it necessary to discuss. We have examined all of them and have found no error.

A new trial must be denied and judgment for the plaintiff must be entered in accordance with the verdict.

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

Ordered accordingly.


author: Gilbert J.:

text:
    JOHN CHADWICK, Respondent, v. JOHN FONNER and others, Appellants.

      Pwol declaration of vendor of land — against whom admitted.

    Parol declarations of the vendor of land, showing that the vendee has paid the purchase-price thereof, are admissible in an action by or against him, or by or against any other person deriving title from or under him, with notice of the vendee’s claim.
    Actual possession of land by a vendee is, in law, equivalent to actual notice of his claim, whatever that may be.

      Appeal from a judgment in favor of the plaintiff, entered .upon the report of a referee.
    This action was commenced by John Johnson, John Chadwick and David Sherman against John Fonner and wife, and the heirs of Jesse F. Locke, deceased, to compel them to convey to the plaintiff John Johnson, twelve acres of laud in the town of Wheatfield, in the county of Niagara, which land, it was claimed by the plaintiff's, Jesse F. Locke had sold to said Johnson in his lifetime, and had received the purchase-price thereof, but had executed and delivered no conveyance thereof.
    Jesse F. Locke died in the spring of 1861.
    The defendant John Fonner purchased the premises, with other land, sixty-two acres in all, of the heirs of Jesse F. Locke, by deed dated in April, 1868, paying for this whole farm sixty dollars per acre. At the time of this purchase Johnson was in possession of the premises to recover which this action was brought, claiming to own the same, by virtue of an agreement made by him with the said Jesse F. Locke.
    Upon the trial of this action, evidence was given on behalf of Johnson to establish his right to the said twelve acres of land, consisting of the admissions of Jesse F. Locke made in his lifetime and after Johnson had gone into the possession of the land.
    Johnson died soon after the entry of judgment herein, and this action was revived and continued in the name of John Chadwick, the present plaintiff.

      Lewis <& Gvmney, for the appellants.

      William, S. Fa/mell, for the respondent.
   Gilbert J.:

That the parol declarations of a vendor of land are admissible in an action by or against him, to prove that the vendee has paid the purchase-money, is an elementary principle in the law of evidence. The declarations of Locke, therefore, would have been competent against him. He died intestate. The land in controversy descended to his heirs, and they conveyed it to Fonner. Those declarations being evidence against Locke in his lifetime, they are, since his decease,- evidence against all who have derived title through or under him, with notice of the vendee’s claim. It is very true that parol declarations are insufficient to destroy a man’s title to lands. But when made by a vendor against his interest they are sufficient to fasten a trust upon the legal title in favor of a vendee, as against the grantees of such deceased vendor, immediate or remote who took the title with notice of the claim of the vendee, and the actual possession of the land by the vendee is, in law, equivalent to actual notice of such claim, whatever it may be. Declarations of that kind do not affect the operation of deeds by virtue of which the legal title is held, but serve merely to show that the vendee has an equitable right to maintain his possession, and that in equity, he has a beneficial interest in the land, notwithstanding the legal title is vested in another. They affect the interests of a grantee of the vendor, or of his heirs, precisely in the manner that they would have affected the interest of the vendor himself if they had been proved in an action to which he was a party, and they have no other or different effect. If uncontradicted they are, and ought to be, sufficient to defeat an ejectment against, or to compel a conveyance to, the vendee in either case. The authorities on this subject are numerous, and they have established the principle stated. (Gr. Ev., §§ 147, 154, 189; Jackson v. Bard, 4 Johns., 230; Padgett v. Lawrence, 10 Paige, 170; Spaulding v. Hallenbeck, 35 N. Y., 204; Schenck v. Warner, 37 Barb., 258.)

. We are of opinion that the referee erred in allowing the question put to the witness Chadwick, as to the declarations of Johnson, regarding the character of his possession. But the answer of the witness was hardly responsive to tlie question, and as no motion to strike out the objectionable testimony was made, the objection to the question may well be deemed waived. We are satisfied that it did not affect the result. The referee does not allude to this testimony in his opinion, and an examination of the whole case shows that it could have had no material influence in its determination. It had no legitimate effect, except upon the question of fact involved, and there was abundant evidence without it to sustain the referee’s conclusions upon that question. When that is the case, the error becomes harmless, and it affords no just ground for reversing the judgment. (Vandevoort v. Gould, 36 N. Y., 644.)

These being the only questions to which our attention has been called, the judgment must be affirmed with costs.

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

J udgment affirmed, with costs.


text:
    ISAAC M. SLOMAN, Respondent, v. THE GREAT WESTERN RAILWAY COMPANY, Appellant.

      Common ca/rrier — liability of, for merchandise carried as baggage — contract for.

    Bailroad companies are not liable for the loss of merchandise delivered to them, under the guise of baggage, for transportation with a passenger.
    They are liable, however, if they knowingly undertake to transport merchandise in trunks or boxes, which have been received by them for transportation in passengers’ trunks, unless the agent who receives the package for that purpose violates a regulation of the company by so doing, and the passenger has notice of such regulation.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to recover damages for the loss of and injury to the contents' of certain trunks of the plaintiff. It appeared upon the trial that the plaintiff was a wholesale clothing merchant in Rochester. His son Marcus was traveling for him as his agent, and selling his wares. On the 18th of August, 1873, he was at Flint, Michigan. He had with him, to aid him in selling his father’s goods, two large trunks, thirty-six inches in length, twenty-seven inches in depth and twenty-four inches in width, weighing about 306 pouuds apiece when full, filled with samples of clothing. On the afternoon of that day he left Flint to return to Rochester. About fifteen minutes before the train left he presented himself, with his trunks, to the baggage-master, who asked where he wanted his trunks checked to. He told him that he did not know at that time, as he had sent a dispatch to a customer at Fentonville to know if he wanted any goods, and if he did not he would go to Rochester, as he expected to meet some customers on the train. Just before the train started he procured his trunks to be checked, and took a receipt for the same as extra baggage.

      The trunks and their contents were exclusively the property of the plaintiff. The son was traveling exclusively in his father’s business and at his father’s expense. The draw in the bridge upon the Welland canal was open at the time when the defendant’s train, carrying the plaintiff’s oagent and the plaintiff’s goods, attempted to cross, and the engine and baggage car went into the canal. The goods were damaged to a considerable amount, and the plaintiff brought suit. -The jury rendered a verdict for the plaintiff, and answered two questions specifically put to them, in the affirmative:
    First. Did the baggage-master at Flint, at the time of the reception of the property in question, have notice that the trunks delivered to him by Marcus J. Sloman contained other than his ordinary personal baggage ?
    Second. Were these trunks precipitated into the Welland canal by the gross negligence of the defendant’s agents or servants ?

      E. C. Sprague, for the appellant.

      W. J. Cogswell, for the respondent.
   Gilbert, J.:

Railroad companies are not liable for the loss o.f merchandise delivered to them, under the guise of baggage, for transportation along with a passenger. (Belfast, etc., R. R. Co. v. Keys, 9 H. of L. Cases, 556; Cahill v. London and N. W. R. R. Co., 13 C. B. [N. S.], 818; Hudston v. Midland R. R., 4 Q. B. [L. R.], 366 ; Smith v. B. and M. R. R., 44 N. H., 325; Collins v. Boston and M. R. R., 10 Cush., 506 ; Pardee v. Drew, 25 Wend., 459 ; Hawkins v. Hoffman, 6 Hill, 586; Dexter v. Syracuse R. R. Co., 42 N. Y., 326; Stimson v. Conn. Riv. R. R., 98 Mass., 83.) They are liable if they knowingly undertake to transport merchandise, in trunks or boxes which have been received by them for transportation, in passenger trains, unless the agent who receives the packages for that purpose violates a regulation of the company by so doing, and the passenger or owner of the goods has notice of such regulation. (Cases, supra ; Gt. Northern R. R. v. Shepherd, 8 Exch., 30; Buther v. Hud. Riv. R. R., 3 E. D. Smith, 571; Brooke v. Pickwick, 4 Bing., 218 ; Stoneman v. Erie Railway, 52 N. Y., 429.)

No evidence was given of any regulation of the company whose baggage-master received the trunks in this case, nor of the com pany which is the defendant here. The authority of the baggage master to do the acts which he did, seems to be clear enough, and it is shown by the case of Perley v. N. Y. Cen. and H. R. Co., in the Court of Appeals, which was decided May twelfth last. The main question which we have- to decide, therefore, is whether the baggage-master received the trunks with notice or knowledge that they contained merchandise or articles that would not fall under the legal denomination of baggage. All the evidence upon that subject was given before the plaintiff rested, and if it was insufficient to show such notice or knowledge, the judge erred in denying the motion of the defendant for a nonsuit.

The trunks lost were thirty inches long, twenty-four inches wide and twenty-seven inches deep. They contained only articles of ready-made clothing, which were carried as samples, and they weighed near 300 pounds each when full. Upon the delivery of the trunks the passenger was asked by the baggage-master, who received them, where he wanted his trunks checked to. The passenger replied tl^at he did not know at that time, as he had sent a dispatch to a customer at Fentonville (a place on his route) to know if he wanted any goods, and if he did not, he (the passenger) would go to Rochester, as he expected to meet some customers on the train. Eventually the trunks were checked to Rochester, and the passenger paid and took a ticket for' the transportation of them as extra baggage. This ticket was headed Receipt ticket for extra baggage and dogs,” and it contained a request that passengers should give up the ticket when they delivered their baggage, to show that the -amount had been paid, and at all times procure tickets, for charges paid for baggage.

We are unable to discover in this evidence any thing warranting the inference that the baggage master knew, or had any reason to suppose that the trunks contained merchandise, or that the extra fare received by him, was received for aught but the transportation of baggage, which exceeded in weight that which passengers are allowed to have carried for the usual fare for the transportation of a passenger. The passenger said nothing respecting the contents of the trunks. They were received and checked in the same way that baggage is ordinarily received and checked, and a receipt for them was taken by the passenger, showing that they were received and were to be called for as baggage. It does not appear that the baggage-master knew the passenger or his business, nor that he (the baggage-master) had ever received such trunks before from the passenger or from anybody else. Neither the appearance of the trunks nor the talk about customers afforded an intimation respecting the contents of the trunks. Traveling merchants or their agents may stop to see customers, or .regulate their journey in order to meet them, without carrying trunks of merchandise. Moreover, the ticket taken in this case repels any inference which might otherwise have been drawn from these facts, that the contents of the trunks were not baggage. (See 9 H. of L. Oases, supra.) We are of opinion that there was a failure of proof of the requisite knowledge, by the baggage-master, of the contents of the trunks. But no intimation of an exemption from liability, without an express contract to carry the trunks as packages of merchandise, is intended. On the contrary, we are of opinion that the defendant in this case would have been liable, if it had been shown that the trunks were received for transportation with knowledge by the baggage-master that they contained merchandise.

This conclusion renders it unnecessary to consider whether gross negligence, on the part of the defendant was proved, or whether that fact, if established, would render the defendant liable.

With respect to the other. questions presented, we think the Circuit judge disposed of them correctly.

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

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

Ordered accordingly.


text:
    EPHRAIM F. CURTISS, Executor, Appellant, v. DAVID D. McNAIR, Respondent.

      County clerk — fees of, for recording papers — chap. 342 of 1840 — fees for searching records.

    The county clerk, for recording instruments in Ms office, is entitled tó ten cents for each folio, and the taking by Mm of any greater fee therefor is a misdemeanor; and any agreement to pay him a greater sum than that allowed by the statute is void.
    Chapter 842 of 1840 applies only to the fees to be charged for searches required in actions of foreclosure; in other cases the fees are governed by the Revised Statutes.
    Under the provisions of the Revised Statutes (2 R. S. [Edm. ed.], 639), the oounty clerk is entitled to charge five cents for searching each of the records • which he is authorized to keep, for each year for which the search is made.
    Appeal from a judgment in favor of; the defendant entered upon the report of a referee.
    . This action was commenced in the Supreme Court by the above named plaintifíj as executor of A. A. Curtiss, deceased, for the recovery of a balance claimed to be due the testator from the defendant on account of services rendered and disbursements made by the testator as county clgrk of Livingston county.
    The items of the account are set out in the complaint, amounting to $383.54, on which had been paid $300.
    The defense set up is, that the charges for the services rendered are above what is allowable by statute, and that the legal allowance for the services did not exceed the $300 paid.
    The action was referred to E. A. Nash,, referee, who decided on the trial, that the services and disbursements charged were rendered, but that there was charged in the items, over and above the legal fees, more than the amount claimed as due, and thereupon reported in favor of the defendant. Upon which report judgment for $103.40 costs was entered in Livingston county clerk’s office, September 4, 1814.

      S. Hubbard, for the appellant.

      Charles J. Bissell, for the respondent.
   Gilbert, J.:

We have confined our consideration of this case to the questions argued by the appellant, namely, those relating to the charge for recording deeds, and those for searches. The fee provided by statute for recording instruments of all kinds is ten cents for each folio (2 R. S., 639, § 30), and the taking any greater fee or reward for such service is a misdemeanor. (Id., 650, §§ 5-7.) It clearly appears that there was an overcharge in this particular, and the referee properly disallowed the same. Any agreement in violation of the statutes cited would be void. Nor can the statutes be evaded by means of an account stated, for that would be only evidence of an illegal agreement, which the court cannot sanction or tolerate. With respect to the fees for searches the law is not so clear. We agree with the referee, that the fees of county clerks for searches, not required in foreclosure cases, are governed by the Revised Statutes, and not by the act of 1840 (chap. 342), as was held, by the late Supreme Court, in Trustees v. Van Horn (3 Den., 171). The title of a statute, though forming no part of it, may be resorted to fbr the purpose of limiting itá application. (Bishop v. Barton, 9 S. C. [2 Hun], 436, and cases cited ; Jones v. Sheldon, 50 N. Y., 477.) The title of the act of 1840 shows that the intept of the legislature in enacting the statute of 1840 was merely to accomplish a reduction of the expenses of foreclosing mortgages, and its operation should-be restricted accordingly.

The provisions of the Revised Statutes on this subject give to a county clerk for searching the records in his office, or the records of mortgages deposited in his office by loan officers and commissioners of loans, or the dockets of judgments, for each year, five cents. We are of opinion that the just interpretation of this language is, that it entitles the clerk to charge for each year embraced in every record which he is authorized to keep, and which he is required to search. It is his duty to provide different sets of books for the recording of deeds and mortgages and other papers, documents, etc. (1 R. S., 756, § 2, 376, § 53.) The right to receive a fee for performing any service carries with it the corresponding duty of performing the service on payment of the fee, and this duty is now enjoined upon the clerk by statute. (Laws of 1847, chap. 470, § 40 ; 4 Edm. Stat., 588.) The duty is “ to search records when required to do so,” and the fee is for “ searching the records.” In both statutes the term “records” is used distributively; for the act concerning the Revised Statutes, passed December 10, 1828 (§ 11), provides that “ whenever, in the Revised Statutes, or in any other statute, words importing the plural number are used, any single matter shall be deemed to be included, although distributive words may not be used.” (1 Edm. Stat., 71.) A requisition to search a single record is within the duty enjoined, and the clerk may charge the prescribed fee therefor. Eor searching another record he is entitled to charge a similar fee, and so on. Statutes must have a reasonable construction in order to carry out the intention of the legislature. We are of opinion that the legislature intended to measure the compensation of the clerk, not by the period of time embraced in his sdarch, but by the number of years, whether the same .or different years, embraced in the records searched, in other words, that the term “year” was intended to embrace the space in the record searched, and not a period of time. Such an intention is more plainly expressed in the act of April IT, 1853, relating to the fees of the clerk of the city and county of New York, but that fact does not show that any other intention should be inferred from the statute under consideration, or that the latter statute is not plain enough. Besides, in the city of New York, the records of deeds and mortgages are kept by the register, and not by the clerk. The statute of April 11,1853, does not apply to the former officer, or regulate his fees. (Kent’s Charter, 126, 167; 1 R. S., 97; id., 112, 47; 2 id., 286, 61; 1 Edm. Stat., 117.)

It was suggested, on the argument, that the construction we have put upon the statute might lead to an abuse of it by the clerk’s multiplying the books in which records are kept; as, for example, by keeping a record of warranty deeds, another of quit-claim deeds, and so on. But such an apprehension is not well founded. There can be only one record of deeds, mortgages and other homogeneous instruments, no matter in how many books they may be contained.

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

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

Ordered accordingly.


text:
    EDWARD P. SMITH, Respondent, v. JAMES W. FERRIS and CHARLES E. FERRIS, Appellants.
    1 ii. 3., p. 515, § 64 — 2 Laws of 1847,588 {chap. 455) — meaning of wo?'d'“ owner ” in — opening of highma/gs — who entitled to compensation.

    The word ‘‘ owner,” as used in section 64 of 1 Revised Statutes, 514, providing that no highway shall be opened or worked without a release by the owner of the land, or an assessment of his damages, means the person entitled to the legal estate in the land.
    Accordingly, where an executory contract for the sale of land, through which a highway is to be opened, has been made, it is the consent of the vendor, and not of the vendee, which is required by the statute.
    Appeal from a judgment of the County Court of Monroe county in favor of the plaintiff, entered upon the verdict of a jury, and an order denying a motion for a new trial, made upon a case and exceptions.
    The action was brought to recover damages for an alleged trespass on the lands of the plaintiff by the defendants, in the village of Speneerport, in October, 1874.
    The plaintiff, in May, 1872, sold the lands described in the complaint to one Win. H. Sprung, and executed a .written contract for the sale and conveyance thereof to him.
    In June of 1873, Sprung, being then in possession of the lands, made an oral agreement for the sale thereof to one Oliver H. Deming, who paid $500 on the purchase-price, and entered into possession of the lands with Sprung. In December, 1873, proceedings were taken to lay out a highway through the said lands and others.
    Deming and wife, being in the possession and occupancy of the lands, and other persons, applied to the commissioners of highways of the village of Speneerport to lay out the new road, and duly released by instruments in writing, under seal, all claim for damages by reason of laying out and opening the same.
    On March 28, 1874, Sprung also consented to the laying out of the road, and released, by a written • instrument, under seal, all claim to damages by reason thereof.

      On the 23d of February, 1874, the commissioners of highways made and filed the requisite order and survey, and proceeded to and did lay out the proposed road according to said application and to law. On April 22, 1874, Deming and wife revoked, by an instrument in writing, their application and release.
    Some time in April, 1874, both Sprung and Deming suffered Smith to retake the land.
    The defendant, James W. Ferris, was the superintendent of streets in the village of Spencerport. The defendant, Charles W. Ferris, was his son. They entered on the lands by direction of the trustees of the village, to open and construct the highway, in accordance with the said order and proceedings of the commissioners, and did the same in an orderly and quiet manner, and plowed a strip of land for that purpose in a proper manner; the plowing was necessary to be done, in order to construct the street.

      Martmdale & Oli/oer, for the appellants.

      George F. Danforth, for the respondent.
   Gilbert, J.:

W e are of opinion that the term “ owner of the land ” -was used in the statute applicable to this case (1 R. S., 515, § 64, as amended in 1847; 2 Laws 1847, 588) in its ordinary acceptation, and imports the person who. is entitled in law to the legal estate in the land. Words are to be taken in the natural and obvious sense, and not in a sense unnecessarily restricted or enlarged. (Story, J., in Martin v. Hunter’s Lessee, 1 Wheat., 304.) The current of authority at the present day, is in favor of reading statutes, according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation.” (Per Bronson, J., Waller v. Harris, 20 Wend., 561.) In ordinary parlance, a buyer does not become owner ” until he pays for the thing bought. While, therefore, the vendor in an executory contract for the sale of lands, is treated in equity as holding the legal title in trust for the vendee, yet this principle does not render the vendee the owner of the land in a legal sense. A person to whom lands have been conveyed upon an express trust becomes, by virtue of such conveyance, the owner of the legal estate, although he obtains thereby no beneficial interest, and the cestui qxw trusts, who are the sole beneficiaries get only a right to enforce a performance of the trust in equity. The vendee in this case had no estate in the land. He was not, therefore, owner of the land ” within the meaning of the statute, whatever other ownership the contract conferred upon him.

This construction comports with the plain intent of the statute. Obviously the statute means, that the release shall be given by the person to whom the damages would be awarded, namely, him whose legal estate is divested. Indeed, the legislature has no power to divest a legal estate in lands without making compensation to him whose property has been thus taken. (Con., art. 1, § 6.) Where lands are taken by virtue of the right of eminent domain, the constitutional requirement to make compensation therefor is not satisfied by an award to him who has an equitable interest in the land, unless he is entitled to the whole estate of the legal owner. Consent to the opening of the highway in no manner affects the right to damages. These views, would lead to an affirmance of the judgment. But the court fell into an error in informing the jury that the plaintiff must recover fifty dollars to entitle him to costs. The action belongs to a class of which justices of the peace are prohibited from taking cognizance, because the title to real property came in question. (Code, §§ 54, 62, 55.) In such cases costs are allowed to the plaintiff, of course. (Code, § 304, sub. 3.)

For this error the judgment must be reversed and a new trial granted, costs to abide the event.

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

Ordered accordingly.


author: E. Darwin Smith, L : Gilbert, J.:

text:
    THE PEOPLE ex rel. THE UTICA AND BLACK RIVER RAILROAD COMPANY v. MICHAEL SHIELDS and others, Assessors of the City of Utica, Respondents.

      Corporation — assessment of capital stocJc of.

    The capital stock of the relator, a railroad corporation, haying its principal place of business at the city of Utica, was assessed at that place, by the respondents, at $40,000. The relator applied to have this stricken out, upon an affidavit showing that its debts exceeded the value of its personal property, which application was denied. Held, that as it did not appear that the capital stock of the relator, uninvested in real estate on its road, did not exceed the sum assessed against it, that the assessment must be affirmed.
    Certiorari to review the proceedings of the board of assessors of the city of Utica, in refusing to strike from the assessment roll an assessment of $40,000 made against the relator.
    It appeared from the return that the relator is an incorporated stock company, owning and operating a railroad extending from the city of Utica, northwardly, to Philadelphia, R. Y.; its principal business office being in the city of Utica.
    Frederick Maus, one of the respondents, was the assessor of the Second ward, and as such he assessed the real estate of the company within his ward (about which no question was made here) ; and also assessed its capital stock, over and above - the cost of its real estate, as personal property, at $40,000. The company furnished no statement of its affairs to the assessor.
    On the seventeenth of August, the day appointed for reviewing the assessments, the relator appeared, by its vice-president and attorney, before the assessors, and, upon the affidavit of Mr. Thorn, asked to have the assessment of $40,000 for personal property stricken from the roll, on .the ground that the debts of the company far exceeded the value of all its personal property.
    The affidavit was read and was considered by the assessors; and the parties appearing also proposed and offered to be sworn, and to give oral evidence in reference to the personal property of the company and its value, and the debts of the company, but did not propose, or offer or consent, to give any evidence or information as to the amount and value of its capital, or the cost of its real estate, or from which the assessors could determine its surplus profits or reserved funds, or the true amount of its capital taxable as personal property. The assessors regarded the affidavit and the further proof offered as wholly immaterial, although true, and denied the application to strike out the assessment, and made and signed the statement required by section 5 of chapter 536 of the Laws of 1857.

      W. Hernán, for the relator.
    The assessor making the assessment roll had power only to assess the company for the value of its personal property, after deducting the just debts owing by the company. (1 R. S. [5th ed.], 909, § 9, sub. 4; 1 N. Y. Stat. at Large, 363, § 9, sub. 4; Laws of 1851, chap. 176, as amended by chap. 536, of the Laws of 1857; 3 N. Y. Stat. at Large, 374, § 6.) These provisions of the statute apply to corporations the same as individuals, by the express provisions of the statute. (Laws of 1857, chap. 536, §3; 3N.Y.. Stat. at'Large, 374, § 3 ; 21 N. Y., 460; 38 id., 89; The People ex rel. Glens Falls Ins. Oo. v. Ferguson et al., Assessors, 38 id., 8, 9.)

      A. Gdburn, for the respondent.
    The relator is liable to be assessed upon its capital stock and its surplus profits or reserved funds, after the proper deductions are made, as upon so much personal property, and without regard to any indebtedness existing against it. (See 1 N. Y. Stat. at Large, 360, § 3; 363, § 8; 365, § 19; 374, § 1; and 375, § 6; Mohawk and Hudson R. R. Go.-v. Olute, 1 Paige, 384, 385; Htiea Got. Mfg. Go. v. Supervisors of Oneida, 1 Barb. Ch., 432, 445-447; Albam/y cmd Sch. R. R. Oo. v. Osborn, 12 Barb., 223, 226; People v. Goml. Ins. Go., 18 Wend., 605; People v. Assessors of Brooklyn, .39 N. Y. [12 Tiff.], 81; Thompson’s Manual, 138, 139; People v. Oomrs. of Taxes, 23 N. Y., 192; Oswego Starch Go. v. Dollowa/y, 21 id., 449; People v. Suprs. of N. Y., 18 Wend., 605.)
   E. Darwin Smith, L :

The return to the certiorari shows that the assessment complained of was completed by the assessors, and the roll, duly verified by them, filed in the office'of the clerk of the city of Utica on the seventeenth day of August last, as required by the provisions of the charter of said city. That the Common Council of said City caused the taxes to be collected in said city to be inserted in copies of said roll, and adopted and approved the same, by resolution, in due form, on the twenty-first day of August, and directed the same to be placed in the hands of the city treasurer for collection, and the same was so duly'placed in his hands, for collection, on the twenty-ninth day of August following

The writ of certiorari appears to have been allowed on the first day of September afterward, and, I presume, was immediately served. It arrested the tax roll in the hands of the city treasurer, who was, therefore, a necessary party to return such record, and stay the collection of the tax.

The assessors of the city of Utica were, also, necessary or proper parties, that the proceedings of the assessors in making the assessment roll, and of the common council in confirming it, and making therefrom the tax roll, might be duly returned with the said writ. The collector was unnecessarily made a party. (The People ex rel. Davis v. Hill and others, 65 Barb., 170.)

But, upon the merits, we think the assessors committed no error. The relators were liable to be assessed for personal property, at the actual value of their capital stock, and taxed therefor in the same manner as other personal property, within the provisions of the act of 1857, chapter 456, 3 Sess. L., 2. (The People v. The Assessors of Brooklyn, 39 N. Y., 81; Same v. Ferguson, 38 id., 89 ; Oswego Starch Factory v. Dolloway, 21 id., 449.)

If the relators had furnished to the assessors the statement showing the real estate owned by them, the amount of their capital stock, and the amount paid in and secured to be paid, excepting the sums paid for real estate and other matters, as required by section 2 of title 4, chapter 13 of part 3 of the Revised Statutes (vide 1 Stat. at L., 374), it would have been the duty of the assessors to have adopted the data or facts embraced in such statement, and followed the direction of section 6 of said statute in determining the value of the capital stock of said relators liable to taxation. But, by reason of the neglect of the relators to comply with said statutes, the assessors had no data to follow in making such assessment, and were entitled, as they were bound, to exercise their judgment on the best information they could obtain on the subject.

The affidavit presented to the assessors, showing the amount of the indebtedness of the company, was, doubtless, made and presented upon the assumption that said company was only liable to be assessed and taxed for its personal property upon the same basis with individuals, and was entitled to a deduction from such assessment, for the amount of its indebtedness, upon the same principle. This, we think, was a mistake. The affidavit showing the indebtedness of the company did not show, or tend to show, the value of its capital stock. Such indebtedness may have been incurred in the purchase of property, which largely increased its business and the actual value of its stock. This affidavit may have been true, and yet the capital stock of said company be worth much above par in the market; and the affidavit shows that the company had personal property largely in excess of the amount of the assessment.

The writ, we think, should be dismissed, with costs.

Gilbert, J.:

We think the assessors acted in accordance with their duty, when they refused to yield to the. demand of the relator. That part of the capital stock of a railroad corporation which is not invested in its real estate, or its road, is liable to taxation as personal property. (1 Edm. Stat., 362, § 6; id., 360; 3 id., 374 ; 1 id., 375, § 6, sub. 1; id.,, 378, § 28.) The counsel for the relator, we think, is mistaken in supposing that the provision of the Revised Statutes, prescribing the manner in which the assessors shall prepare the assessment rolls (1 Edm. Stat., 363, § 9) affects the rule of taxation applicable to corporations. (Mohawk and Hud. R. R. Co. v. Clute, 4 Paige, 384; People ex rel. Citizens Gas Co. v. Assessors, 39 N. Y., 81; People v. Com., 23 id., 192; Thomp. Man., 138.)

As the return does not show that the capital stock, uninvested as the statute prescribes, did not exceed the sum assessed against the relator, no legal error appears which would warrant us in ordering the tax against the relator, of which he complains, to be stricken from' the assessment roll. A mistake of the assessors in the form of the assessment is not enough. There must be a substantial error, before the court can interfere with the tax.

The proceeding returned must be affirmed, with costs.

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

Oertiorari dismissed, with costs.


text:
    LEVI NELLIS, Respondent, v. DAVID BELLINGER, Survivor, etc., Appellant.

      Mechanics lien — chap. 489 of 1873 — consent of owner of land to erection of buMding.

    Chapter 489 of 1873 gives a lien to persons furnishing materials used in the erection of a building, whenever the owner of the land consents to the erection of the building upon it; and such consent may be proved by acts and declarations, as well as by direct evidence. It is not necessary that the acts of the lienor should have been in any way induced by the consent of the owner of the land.
    Appeal from a judgment of the County Court of Herkimer county in favor of the plaintiff, entered upon the trial of the action by the court without a jury.
    The action was brought to foreclose a mechanic’s lien, filed under chapter 489 of 1873.

      Earl, Smith <& Brown, for the appellant.

      J. A. da A. B. Steele, for the respondent. '
   Gilbert, J.:

The County Court found as facts, that the defendant was, and for twenty years or more had been, the owner in fee, of the parcel of land specified in the notice of lien; that his son Adam caused to be erected on said land a new dwelling-house for his own use; that the plaintiff, who is a carpenter and joiner, performed work and labor in the construction of said house, at the request of Adam, to the amount and value of $116.87; that the defendant knew that Adam was erecting the house for his own use, and of said employment of the plaintiff; that he was present on several occasions while the work was in progress, and rendered some assistance in the erection of the house; that he resided in the neighborhood, and made no objection to the work being done, nor to his son’s constructing the house, and thereby consented to the performance of said work. The particular facts from which the court drew the inference that the defendant consented to the erection of the house, we think are sufficient for that purpose, and the evidence shows that the defendant was willing to have the house built upon his laud, and encouraged the building of it. Such evidence clearly manifests the consent which the statute requires. And it does not detract from the legal effect of such consent, that the defendant gave it under an impression that it devolved no liability on him. His mistake of the law cannot affect the rights of the plaintiff. The amendment of the statute passed in 1873 (Laws 1873, chap. 489) was designed to meet the objection, that there could be no lien as against the owner, when the labor or materials had been furnished under a contract with a person whose interest arose upon an agreement, whereby the owner agreed to sell the land to such person, and to make advances toward the erection of a building thereon. In such cases the rights of the lienor were always subordinate to the interests of the legal owner, for the lien affected only the equitable title of the vendee. (Loonie v. Hogan, 5 Seld., 435 ; Metcalf v. Hunnewell, 1 Gray, 297; Johnson v. Pike, 35 Me., 291 ; Gray v. Carleton, id., 481; Stienwitz v. Randmott, 3 S. & R., 541.) The statute now gives a lien, as well when the owner of land consents to the erection of a structure upon it, as when he contracts directly for its construction. And such consent of the owner may be proved by the fact that he entered into such contract, or by other acts and declarations, as well as by direct evidence. (Gr. Ev., § 197; see, also, Hart v. Wheeler, 1 N. Y. S. C. [T. & C.], 403; Riley v. Watson, 6 id., 310; Gates v. Whitcomb, 6 id., 341.) The legislature, by the amendment cited, clearly intended to enforce the equitable principle, that one who knowingly takes the benefit of the property or labor of another, in the'form of improvements made upon his land, ought to have the land subjected to a lien for the value thereof.

It is urged that the consent required by the statute must have entered into the consideration, or in some way induced the acts, of the lienor. The answer is, that the statute contains no qualification of that kind, and we have no power to interpolate one into it. Cases may arise where the lien accrued under a contract with a tenant for life, or for years, and it may be sought to subject the interest of a reversioner to the lien on the ground that he consented to the lienor’s acts. That, however, is not this case, and it will be time enough to lay down a rule of law for such a case when it arises.

'We think the judgment should be affirmed.

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

Ordered accordingly.