text:
    JOSHUA MAXWELL and JOHN ALLEN, Jr., Executors, etc., of ELIZABETH H. MAXWELL, Deceased, v. HENRY A. PRATT.

      Tenants m common of a chattel — right of one of them to sue alone, for an ingu/ry to Ms interest therein — Defeet of parties — when it must he taken advantage of hy demurrer — when the names of the proper* parties must he given.

    Where, upon, the face of the complaint, it appears that the plaintiff, claiming to be the owner of a one-third interest in a chattel, has brought the action to recover damages for the conversion of the said interest by the defendant, an objection to his omission to make the owners of the remaining two-thirds of the chattel parties to the action, must be taken by demurrer or it will bo waived.

      QucBre, whether, where an owner of an undivided one-third of a chattel brings an action to recover damages for the conversion thereof, and the defendant has committed no trespass upon the rights of the owners of the other twotliirds of the chattel, but acknowledges their rights and only claims to be a joint owner with them, it is necessary for the plaintiff to make the owners of the other two-thirds parties to the action?
    An answer setting up a defect of parties plaintiff must give the names of the necessary parties if they be known to the defendant.
    Motion for a new trial on exceptions directed to be beard in tbe first instance at tbe General Term, after a nonsuit ordered at tbe Circuit.

      O. O. Cottle, for the plaintiffs.

      Giles E. Stillwell, for the defendant.
   Talcott, P. J.:

Tbis is a motion for a new trial on exceptions by tbe plaintiffs, after a nonsuit at tbe Erie Circuit.

Tbe facts of tbe case are, in brief, as follows: Tbe plaintiffs sued as executors of tbe will of Elizabeth IT. Maxwell for the conversion by tbe defendant of certain goods and chattels, to wit, one third of a building situated near tbe village of Corfu, in Genesee county, alleging that tbe defendant unlawfully took and claimed possession of said property, and took and converted tbe same to bis own use. Tbe defendant answered tbe complaint, alleging, after a general denial, as follows: “Second, that there is a defect of tbe parties plaintiff, and that some person or persons to the defendant wnknown should be joined as plaintiffs herein; ” and be answered thirdly, claiming as justification tbe recovery of a judgment before a justice of tbe peace against one Thompson Maxwell, and tbe sale of the one-third interest in tbe said cheese factory to tbe defendant, and under such sales and purchase tbe defendant claims title to the said one-third of tbe said cheese factory; and tbe defendant also alleges that said Thompson Maxwell conveyed bis interest in said cheese factory to tbe estate of Elizabeth Maxwell to defraud his creditors. It appears that tbe said one-third interest in tbe said cheese factory was purchased by tbe giving of tbe note of Thompson Maxwell, indorsed by one of the plaintiffs, Joshua Maxwell, to one Robert Fero, and tbe title to the one-third of tbe cheese factory was taken in tbe name of said Thompson Maxwell, the son of said Joshua. When the note given by Thompson Maxwell matured, it was taken up with money in the hands of the plaintiffs as executors; and Thompson Maxwell afterwards and on the 22d of July, 1874, sold, assigned and transferred to the plaintiffs, as such executors of Elizabeth H. Maxwell, his one-third interest in said cheese factory. The cheese factory stood upon leased ground, and having been built for the purpose of trade and manufacturing, it is presumed that the cheese factory was personal property; but no question is made in the case on that subject. After the defendant purchased the interest of Thompson Maxwell on the execution, which was some two years after the sale by Thompson Maxwell to the plaintiff, he claimed to own the one-third of the factory by virtue of that purchase, and forbid the plaintiffs’ tenants from paying: any subsequently accruing rents to the plaintiffs, and finally leased to one Cummings the undivided one-third of the factory for twenty-five dollars per year. Cummings went into possession of the one-third in question under that lease, having a lease from the owners of the other two-thirds, and paid his rent to the defendant. At the opening of the case the defendant moved for a nonsuit, on the ground that the owners of the other two-thirds had not been made parties to the suit. It appears that the defendant knew the names of the owners of the other two-thirds of the factory, and that they were living at the commencement of the suit. The court reserved that question, but afterwards granted the nonsuit, presumably upon that ground.

It is true the general rule is that tenants in common of personal property must join in an action for its conversion, but it may be doubted whether that rule can apply to a case of this character where the conversion is not of the whole chattel, but of a special undivided interest, to wit, the undivided one-third of the chattel, and where the defendant does no act which can be construed as a trespass upon the rights of the owners of the other two-thirds, but acknowledges their rights, and only claims to be a joint owner with them. (See Tripp v. Riley, 15 Barb., 333.) But it seems to be unnecessary to consider that question in this case, for two reasons : The defect of parties plaintiff appeared on the face of the complaint. The plaintiffs sued for the conversion of one-third of the chattel* and claimed only that they were the owners of the said one-third. In case the defect of parties appears upon the face of the complaint, if the defendant does not demur for that cause he waives the objection. (Code of Civ. Pro., § 488,499; Zabriskie v. Smith, 13 N. Y., 322; De Puy v. Strong, 37 N. Y., 372; Fisher, exr., v. Hall, 41 N. Y., 416, 422.)

The statement in the answer is not effectual as a plea in abatement. Dilatory defenses, such as a plea in abatement, are not favored, but are to be strictly construed; such a plea must give the plaintiff a better writ,” it must state precisely who should be made parties. (Wigand v. Sichel, 3 Keyes, 120; Fowler v. Kennedy, 2 Abb. Pr. 347, 351; Wooster v. Chamberlin, 28 Barb., 602.)

The defendant well knew who were the owners of the remaining two-thirds of the cheese factory, for he informed his tenant, Mr. Cummings, of their names. Some other objections were made by the defendant to sustain the nonsuit, and on the argument he took the objection that the executors, as such, had no authority to take the conveyance from Thompson Maxwell, that is to make an investment in the one-third of a cheese factory, and he cites sundry authorities to show that an executor cannot make investments except in a certain class of securities. But the defendant is not in a position to raise such a question; that objection can only be made by some cestui que trust under the will.

There was no evidence given tending to show that the release and conveyance of the one-third of the cheese factory was not made in good faith and for a valuable consideration, to wit: The payment of Thompson Maxwell’s note given for the purchase price, or that such conveyance was intended to or could in any way have defrauded the creditors of Thompson Maxwell. The other objections are equally frivolous.

New trial ordered, costs to abide the event.

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

New trial ordered, costs to abide event.


source: Caselaw Access Project

author: Hardin, J.:

license: Public Domain

text:
    LEORA BRUMFIELD, by Guardian, Appellant, v. HANNAH BOUTALL, Respondent.

      Instruments executed, at the sarnie time a/re to he read together — When a deed will he treated as a mortgage — When a purchaser is cha/rgecible with notice of an unrecorded conveyance.

    In April, 1874, Erastus Brumfield died, having theretofore entered into an agreement for the purchase of certain land for the sum of $8,160, of which amount $500 had been paid. He died intestate, leaving him surviving his widow Amy, and two daughters, Evaline and' Leora. Thereafter the land was conveyed to one Kennedy, who paid in cash $3,500 of moneys belonging to the estate of Brumfield, and gave back his own bond secured by a mortgage upon the land for the balance, $4,756.75. At the time of receiving the deed Kennedy executed and delivered a declaration of trust, reciting that the cash had been advanced by and that he held the land in trust for the said Amy, Evaline and Leora, and that he had given the said bond and mortgage, and agreeing that upon the demand or request of the said Amy, Evaline and Leora he would convey the land to them in the proportions to which they were by law entitled to it, subject to the said mortgage, upon being first repaid any sums he might have paid upon it, and being secured against any liability thereon. This declaration of trust was not recorded. Kennedy having subsequently conveyed the land to Amy and Evaline, and they having sold the same to the defendant, this action was brought by Leora to have her interest in the premises ascertained and declared.

      Held, that the deed and the declaration of trust were to be read together, and that upon so considering them it was evident that the deed to Kennedy was intended to be, and that it should be treated as a mortgage, and that when so construed there was nothing in the statute of uses and trusts rendering the instruments or either of them invalid.
    The facts which will put a purchaser of land upon inquiry, and which will charge him with knowledge of equities arising from unrecorded instruments, considered and held to exist in this case.
    Appeal by the plaintiff from a judgment, entered in Wayne' county, upon the decision of the Special Term, after a trial before that court dismissing the plaintiff’s complaint.
    The action was brought by the plaintiff, an infant of the age of sixteen years, to have her interests ascertained and declared in certain lands situated in the said county, and described in the complaint. The defendant claimed to have purchased the land for value and without any notice of the plaintiff’s rights, and without notice sufficient to put her upon inquiry in respect to them. The farm was owned by James J. Brumfield in 1871, at the time of his death, he being the grandfather of the plaintiff. The lands were sold by the executors and purchased by Erastus Brumfield in his lifetime foils,160, he paying $500 towards the purchase price, and taking a receipt therefor in January, 1874. In April, 1874, Erastus Brumfield died, intestate, leaving Amy Brumfield,-his widow, and two daughters, Evaline Brumfield and Leora Brumfield (the plaintiff), him surviving. After Erastus’ death the balance of the purchase price was paid out of moneys belong to his estate and in which the plaintiff had an interest, and the executors conveyed the- premises June 5, 1874, to William D. Kennedy, and said Kennedy executed a declaration of trust which bears the same date June 5, 1874, as the executors’ deed to Kennedy. The deed to Kennedy was recorded July 23,1874. The declaration of trust was executed in the presence of J. P. Varnan, a subscribing witness, though it was not acknowledged until September 27, 1877, and not recorded until after the commencement of tbis action. The declaration of trust referred to the deed and recited that $3,500 in cash was paid by Amy Brumfield (widow), and Evaline and Leora Brumfield, and that no part of the cash payment was made by Kennedy, and it declared the legal title to the land was conveyed to him to be held in trust by him “ for and in behalf of said Amy, Evaline and Leora Brumfield, to be hereafter conveyed to them by me.”
    It also stated that to secure the balance of the purchase money of said real estate, to wit, $4,756.75, and the payment to said executors, “ the trustee had given his bond which was secured by a mortgage of said real estate.” Thereafter followed the words, viz.: “Now, therefore,.I, William D. Kennedy of Cleveland, Ohio, do hereby declare that I hold the title of said land in trust as aforesaid, and that I will upon demand or request by the said Amy, Evaline and Leora, convey by good and sufficient deed or deeds to them, in the proportions to which they are by law entitled to the same, the said land or real estate, subject to the said mortgage, and to any other liens now existing, they first to repay to me any and all sums of money that I shall or may pay or have paid upon said bond and mortgage (if any), with interest thereon from the time of such payment, and to indemnify me from and against any and all liability I may incur, suffer or be put to by reason of said bond and mortgage aforesaid.”
    Kennedy, the trustee, held the title to the lands until about the 18th of April, 1876, when he conveyed the premises to Amy (the widow) and Evaline by a deed, absolute on its face, making no reservation, whatever, of the plaintiff’s interest. This deed was recorded April 21,1876/ November, 18,1876, Amy and Evaline conveyed the premises to the defendant, in exchange for certain property situated in Cleveland, Ohio. This deed was recorded April 4, 1877. The negotiation for this exchange was conducted by John Boutall, the husband of the defendant, who acted as the agent for the defendant in the purchase and sale, and it was claimed that such agent was advised as to the rights of the plaintiff, or at least had notice sufficient to put him upon inquiry. The court held that the defendant was chargeable with all the notice that was given to John Boutall, her agent, and “ that the defendant, by her purchase, took and bolds the absolute title in fee of the premises in question, freed from any claim, lien, right or title of the plaintiff therein,” and dismissed the complaint with costs.

      Dudley, Dennison & Dudley, for the appellant.

      S. D. McIntyre, for the respondent.
   Hardin, J.:

The deed of the executors of James J. Brumfield to "William D. Kennedy of June 5, 1874, and the declaration of trust executed by Kennedy that day to Amy, Evaline and Leora must be construed together as between the parties named therein.

The consideration which was paid to the executors for the lands belonged to Amy, Evaline and Leora. They had succeeded to the rights of Erastus Brumfield to the extent of the $500 paid by him in his lifetime, and the moneys paid by the widow and children. They had an interest in the lands at the time the conveyance was made to Kennedy, to wit, $3,500; and when the deed and declaration of trust are read together and considered, it is apparent that the deed to Kennedy was given to, and should be treated as a mortgage, to secure him for the liability which he incurred by reason of the execution of his bond for $4,756.75, and the mortgage collateral thereto, and also to secure him all sums which he should pay towards said lands or any other lien thereon. (Horn v. Ketletas, 46 N. Y., 605; Fullerton v. McCurdy, 55 id., 637.)

After satisfying such sums and liabilities, Kennedy was to convey the lands to Amy, Evaline and Leora “ in the proportions to which they are by law entitled to the same, subject to the mortgage, and other liens existing thereon.”

Thus construed we then see nothing in the statute of uses and trusts rendering the instruments or either of them invalid. (3 R. S. [5th ed.], 15; Manice v. Manice, 43 N. Y., 303; Corse v. Leggett, 25 Barb., 389.)

The husband of the defendant went from Cleveland, Ohio, to Wayne county “at her suggestion,” and examined the farm, and commenced a negotiation for the same with Amy and Evaline, and thereafter the exchange was consummated. He was then acting for his wife. She had the title to the Cleveland property, and took a conveyance of the lands described in the complaint. She acted through her husband as her agent, and the notice or information in respect to the title to the lands in question given to the agent must be treated as notice and information given to the defendant. (Ingalls v. Morgan, 6 Seld., 184, and cases cited.)

We now come to the question as to what notice the defendant received through her agent in respect to the title and ownership of the lands in question.

There was a conflict in the evidence as to what notice of information was given to the defendant’s agent in respect to the title. Upon the conflict the learned trial judge has found favorable to the defendant.

That finding is not conclusive upon us. We are to give to it such consideration as we think it fairly entitled to; but it is our duty to consider the whole evidence and conclude therefrom whether the finding justly draws the proper conclusion from the evidence. (Moran v. McLarty, 75 N. Y., 25.)

Evaline Brumfield and Leora, the plaintiff, gave direct and positive testimony that in the interview had with the defendant’s agent, he was informed that the land had been conveyed to Kennedy in trust, and that they offered to get the papers while he was then in the house and show them to him, and that he declined or omitted to look at them and that he was informed of the history of the title. There is some corroboration of their testimony furnished by the evidence of Mr. Dudley, who held a conversation with the defendant and her husband before this action was brought.

The husband of the defendant contradicts the evidence so given to support the affirmation of notice. His wife denies that she had any actual knowledge of the trust in favor of Leora,. the plaintiff. But as we look into the evidence of the husband, we find that he, in the interview as to the lands, held when he visited the farm for the purpose of examining it, and while negotiating for it, admits the interview to which Evaline and Leora refer to in their evidence.

He also admits that he learned while there that the farm formerly belonged to the plaintiff’s grandfather, and that he knew it was “ a farm that had been in the possession of the Brumfield family for years,” and that he “ was told thatthat he understood that Evaline and Leora were tlie children of Erastus, and that he saw Mrs. B. and knew she was the widow of Erastus; that Evaline told him that her father, Erastus, had “ partially- inherited the farm, and that his father had died soon after the partial inheritance;” that something was said about Leora by Evaline at the time of making the bargain, and about there being a trust, etc.

Considering the evidence of this witness in connection with that given by the plaintiff, we think a more reasonable conclusion to be drawn from the whole, that the agent of the defendant derived such information and notice of the rights of the plaintiff as would put a prudent man upon inquiry as to her interests in her father’s estate, as to her interest in the inheritance of her father. The most natural inquiry of a prudent man would have been, was Leora’s interest directed cut off, or worked out of her father’s estate %

The information disclosed to the husband of the defendant was such as was sufficient to put him upon inquiry to ascertain what his interests were. If he had prudently looked at the deed to Kennedy and the declaration of trust given contemporaneous with the deed, he would have discovered the true state of the title. "We think he was negligent in not so doing, and that the defendant was not a purchaser in good faith without notice. (Williamson v. Brown, 15 N. Y., 366; cited, 56 id., 520; Brown v. Volkening, 64 id., 76.)

He was put upon inquiry, and omitted to pursue the proper investigation with due diligence. That would have led to knowledge of the trust declaration —to the true interest of Leora in the premises.

The defendant was not, therefore, a purchaser in good faith without notice. (Stearns v. Gage, 79 N. Y., 102; 23 Alb. Law Jour., 132; Baker v. Bliss, 39 N. Y., 70; Fullerton v. Viall, 42 How., 294.)

We recognize the rule that such notice must be found upon “ clear and strong circumstances,” and we think the evidence and circumstances answer the requirements of the rule.

In the opinion delivered by the trial judge we find it stated that such notice was given to the agent of defendant as we have assumed to have been given, and it is then added that such notice was sufficient to put him upon inquiry as to the existence of any right or title in conflict with the one he was about to purchase. We cannot assent to such a view of the case. "We think it was just such a notice as would have awakened the diligence of a prudent man; and that if the diligence had been exercised it would have led directly to an understanding that Leora, the infant, had some interest and right in the inheritance of her father, and that it had not been rightfully taken from her by any legal or other proceedings sufficient in law to bar her.

There could be -no estoppel' as she was an infant. (Sherman v. Wright, 49 N. Y., 231; Chapin v. Shafer, 49 id., 407.)

When the plaintiff’s father died intestate he had acquired an equitable interest in the lands, entitling him as purchaser to receive the fee upon payment of the remaining unpaid purchase-money. The plaintiff by inheritance acquired an interest in said lands, and the facts and circumstances disclosed in the trial clearly indicate that the defendant, through her agent, was chargeable with notice of such interest, and the defendant, therefore, is not in a situation to deprive the plaintiff of her inheritance.

If the defendant has suffered by any fraud practiced by the widow and Evaline, the remedy is by an appropriate action.

The rights of the plaintiff in the lands must be protected.

Judgment reversed and a new trial ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

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


text:
    RAMY DEZENGREMEL, Appellant, v. FRANCIS P. DEZENGREMEL, Respondent.

      Statute of limitations — cannot be taken advantage of unless it is pleaded— the omission to plead it is not a defect which can be remedied by an amendment upon the trial.

    The defendant cannot avail himself of the defense of the statute of limitations, unless he has set it up in his answer.
    His failure so to plead it, is not a defect in matter of form which should be corrected by the court upon the trial.

      Appeal from a judgment, entered in Jefferson county, upon tbe report of a referee, dismissing the complaint with costs.
    The action was- brought'to correcta mistake made in the conveyance of thirteen acres of land. The answer put in issue the question as to the mistake. The referee found that the defendant, Francis P. Dezengremel, having been in adverse possession under his deed from Ranney P. of the land in question for twenty years, the plaintiff is not entitled to a judgment for a reformation of the deed or for a correction of the mistake.
    The answer sets up the conveyance of the lands in 1851, and that at the date of said deed “ this defendant went into the possession of the said land, as described by metes and bounds, and continued to occupy the same as owner, under claim of title, until such time as he conveyed the same or a portion thereof to one Antoine Royce, or rather until he contracted the same to the said Royce in 1872.”

      Dorvñn & Remington, for the appellant.

      F. W. Hubbard, for the respondent.
   Hardin, J.:

The answer contains no defense of adverse possession; it does not state that the action was not commenced within the time limited by law.

Section 413 of the Code of Civil Procedure is as follows: “ The objection, that the action was not commenced within the time limited, can be taken only by answer.” * * *

This provision is like the one in section 74 of the Code of Procedure.

The defendant cannot have the benefit of a defense of a statute of limitations not taken by answer. (Sands v. St. John, 36 Barb., 628; Butler v. Mason, 16 How., 546; Lefferts v. Hollister, 10 id., 383.) Nor should we amend the answer so as to insert the defense. (Williams v. Willis, 15 Abbott [N. S.], 11.)

We cannot determine that the defect in the answer was waived at the trial, nor that “ adverse possession was one of the prominent issues litigated on the trial and upon which the referee was called upon to find and decide,” as no case is made and presented to us.

The appeal is taken, from the judgment, and only the judgment roll and the exception to the referee’s report are brought up.

Nor is this a case where the answer is defective inform, and such defect is cured by the trial. (De Grove v. M. Ins. Co., 61 N. Y., 605; sections 721, 722, 723, Code of Civil Procedure.)

We must reverse. Judgment reversed anda new trial ordered before another referee, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Judgment reversed and new trial ordered before another referee, costs to abide event.


text:
    WM. H. HAWLEY, Appellant, v. ALBERT McINTYRE, Superintendent of Poor of Yates County, Respondent.

      County claims — must be itemized and verified by affidavit— 1 S. 8. (6thed.), 845, §70.
    No action will lie against a superintendent of the poor for neglect of duty in failing to audit, allow and pay by warrant the claim of one who has rendered services as a physician to a pauper, when the claimant has failed to present to him an itemized account verified by his affidavit, as required by section 70, of 1 B. S. (6th ed.), 845.
    Appeal from a judgment in favor of the defendant, entered upon the report of .a referee.

      Spencer & Struble, for the appellant.

      Wood & Butler, for the respondent.
   Hardin, J.:

This is an appeal from a judgment entered upon the report of a referee dismissing the complaint of the plaintiff, with costs.

The action was one upon the case, and the gravamen of the charge is that the defendant, being superintendent of the poor of Yates county, refused and neglected to settle, audit, allow and pay, -by means of his warrant, drawn upon the county treasurer, an account of the plaintiff for services and charges, as a physician, in attending and treating one Grogan, a pauper, who was injured by the cars and became sick and’ disabled in the town of Milo, at Penn Yan.

The defendant answered and, among other things, stated that he put “ in issue not only his liability in this action, and' the amount and value of said services and expenses.”

Upon the trial it was admitted that the account when presented to the defendant “ was not, when so presented, verified by the plaintiff.”

The referee held and decided that the plaintiff had no cause of action, and dismissed the complaint. It is well settled that a party who sustains damages by reason of the omission of duty by a public officer can maintain an action therefor. (Olmsted v. Dennis, 77 N. Y., 382, and cases cited; Warren v. Clement, MS. op., decided at this term; McCullough v. Mayor, 23 Wend, 458; Hayes v. Symonds, 9 Barb., 260.)

In 1845, May 10, the legislature passed an act to reduce the number of town officers and town and county expenses, and to prevent abuses in auditing town and county accounts. That act was amended by chapter 490 of the Laws of 1847 (vol. 2, p. 729).

The statute thus amended declares “ no account shall be audited by any board of town auditors, or supervisors, or superintendents of the poor for any services or disbursements unless such accou/nt shall be made out in items and accompanied with an affidavit attached to and to be filed with such account, made by the person presenting or claiming the same, that the items of such account are correct, etc.” (1 R. S. [6th ed.], 845, § 70.)

This was passed to prevent frauds and abuses and to protect the tax-paying public. It was not complied with by the plaintiff. The duty to audit, allow and give a warrant did not begin until the plaintiff, as a condition precedent, presented such an affidavit.

The complaint did hot state 'that such affidavit was presented to the defendant, nor did the plaintiff offer any proof to that effect. There was no dereliction of duty, therefore, shown. The defendant did not, therefore, become liable to an action on the case.” Not having been guilty of any negligence he was not liable to the plaintiff for omitting to audit, either personally or in his official capacity. (Lament v. Haight, 44 How., 1.)

No court would overrule the statute, and order by mandamus a warrant upon the treasurer, and we- ought not to help the plaintiff violate the statute passed to prevent abuses in auditing town and county accounts, quoted supra.

The cases in respect to waiver of grounds not taken, when a tender is made between individuals, have no application. (67 N. Y., 280.) The defendant had no business or right to waive the requirements of the statute, nor did he do anything tending to create an estoppel. The plaintiff failed to make a case and was properly nonsuited.

The judgment dismissing the complaint ought to be affirmed.

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed.

       Reported post p. 472.


author: Hakoin, J.:

text:
    WILLIAM STUCKEY, Respondent, v. GEORGE MATHES, as Committee of the Person and Estate of BARNEY MATHES, a Lunatic, and BARNEY MATHES, Appellants.

      Ma/rriage between a lunatic and a sane woman — not void but voidable — when its .validity cannot be impeached collaterally in an action foi' the price of necessao’ies furnished to the wife.

    Where, in an action brought against the committee of a lunatic to recover for necessaries furnished to one claiming to be his wife, it appears that a marriage was duly solemnized between the lunatic and the woman, which was followed by cohabitation continuing down to.the time of the appointment of the committee, when the woman was obliged to leave and live apart from him, the committee cannot set up as a defense that the marriage was void because the husband was at the time of its solemnization and ever since had been a lunatic, without lucid intervals.
    Appeal by the defendants from a judgment, entered in Orleans county upon the report of a referee. The action was brought against the committee of a lunatic to recover for board and necessaries furnished by one ‘Lawrence to Rebecca Mathes, the wife of the lunatic, the claim for which had been assigned to the plaintiff, and for board and necessaries furnished by the plaintiff to Eebecca in 1877. The accounts were presented to the committee and payment demanded and refused.
    The County Court of Orleans county authorized this action to be brought against the committee, that court being the one which appointed the committee.

      Keeler & Salisbury, for the appellants.

      John E. White, for the respondent.
   Hakoin, J.:

By the evidence given in this case it appears that Eebecca Stuckey, on the 25th day of February, 1877, intermarried with Barney Mathes. She continued to live and cohabit with him until some time in March, 1877, when, without any fault upon her part, she was obliged to seek board and the necessaries of life away and apart from, him, he having become a lunatic, and a committee having been appointed of his person and estate.

The referee has found the items stated in the accounts referred to in the complaint were for necessariés suitable to the condition and station in life of the wife. There was abundant evidence given to support the findings.

The referee has found that there was no fraud or duress practiced by Eebecca, or any one in her behalf, to bring about her marriage. The evidence warranted such finding and we ought not to disturb the finding. (Roosa v. Smith, 17 Hun, 138; Howell v. Biddlecom, 62 Barb., 131.)

The Revised Statutes (vol. 2, p. 142) provide that a sentence of nullity declaring void a marriage contract may be pronounced by the court for several enumerated causes, and one of them is that one of the parties was an idiot or lunatic. The article in which this provision is found regulates the practice in such cases, and it also provides who may be parties to such a suit. Those provisions are wholly inconsistent with the mode of procedure adopted in this case. Here we have an action upon an account for necessaries furnished the wife, and it is sought to resist'* it upon the ground that the marriage between her and her supposed husband was solemnized when he was a lunatic without lucid intervals. The reply is that he had a lucid interval, and while sane consummated the marriage contract and subsequently cohabited with her, and had sexual intercourse with her at different times prior to inquisition found. She is not a party to this action, nor is the action brought or conducted according to the provisions of the Revised Statutes to which we have alluded. Such a course was condemned in Johnson v. Kincade (2 Ire. Eq., 470), and the court said: “We do not feel at liberty to decide a question of such grave importance, as a thing collateral or incidental to an ordinary bill for an account.” Bishop, in his work on marriage and divorce, says the course adopted by the court was eminently wise and just.” (1 Bishop, § 138.)

The question whether a marriage with a lunatic, duly solemnized, and followed by cohabitation is void or voidable was discussed by the surrogate of New York in Jaques v. The Public Administrator (1 Bradford’s Surrogates’ Rep., 499).

We have not seen a case in this State arising since the adoption of the Revised Statutes which declares that the marriage is void, absolutely, and that its invalidity may be asserted in a collateral way. We are unwilling to hold that the evidence in this case established that Rebecca was not the wife of Barney at the time the necessaries were furnished to her by the plaintiff and his assignor, or that such a question can be raised and litigated in such an action as the one before us.

That question has not been presented in this case for determination in the mode and according to the practice prescribed by the Revised Statutes in respect to “ divorces on the ground of the nullity of the marriage contract.” (2 Rev. Stat., 142.)

Applying the views already expressed to the case before us, we see no errors in the course of the trial which call upon us to reverse the judgment. (Sec. 1003 of Code of Civil Procedure.)

Judgment should be affirmed.

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed.


text:
    MATILDA CARPENTER, Plaintiff, v. ANTHONY SHIMER, DEFENDANT.

      Statute of limitations — when it operates prospectively only — Chapter 431 of 1876.

    Chapter 431 of 1876, amending section 94 of the Code, so as to limit to one year the time within which an action for an injury to the person must he brought, operated prospectively only, and did not affect causes of action existing at the time of its passage.

      Dubois v. The City of Kingston (20 Hun, 500); GfuiUotel v. The Mayor (55 How., 114) not followed.
    Motion for a new trial on exceptions taken to a nonsuit ordered upon a trial at the Cayuga Circuit, which were directed to be heard in the first instance at the General Term.
    The action was brought to recover damages for an injury to the person of the plaintiff sustained through the defendant’s negligence.
    The cause of action accrued in June, 1874, when the injury was sustained. The action was commenced April 13,1877. The answer alleged that the plaintiff “ ought not to have or maintain the said action because more than one year has elapsed since the aforesaid cause of action accrued to the plaintiff and the same is barred by the statute of limitations.”
    At the trial the plaintiff urged and insisted that the amendment of section 94 of the old Code had no application, and the defendant’s counsel insisted that chapter 431 of the Laws of 1876, amending the said section, applied and that the action was barred.
    The court held with the defendant and nonsuited the plaintiff.

      M. Goodrich and Geo. Underwood, for the plaintiff.

      Jolm T. Pwigree, for the defendant.
   Hardin, J.:

In Patterson v. Gaines (6 How. [U. S.], 550) it was held that the statute of limitations which was in force when the suit was brought is that which determines the right of a party to sue.

Section 74 of the Code of Procedure declared, viz., “ Civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued.” * * *

Section 89 of the Code of Procedure declared .that the periods prescribed in section 74 for the commencement of actions * * * shall be as follows, etc:

And then several sections intervene, and section 94 was amended in 1876 by chapter 431 of the laws of that year so as to read, viz.: Section 94, within one year. (1.) An action against a sheriff. * * * (2.) An action for injury to the person.”

The words under the second subdivision were new and added by the act of the legislature of 1876, passed May 26,1876 (chap. 431), and by its terms to take effect July 1, 1876.

When this action was commenced the limitation was one year, and that statute being the only one then in force was claimed to be controlling.

The question presented to us was passed upon by the 'Third Department in Dubois v. The City of Kingston (20 Hun, 500), and, by the Court of Common Pleas of New York (Guillotel v. The Mayor, 55 How. 114), and resolved in favor of the construction, given in the court below in the case before us.

In section 73 of the Code of Procedure there was inserted a provision that the rules prescribed by title two should “ not extend to actions already commenced or to cases where the right of action has already accrued ; but the statutes now in force shall be applicable to such eases according to the subject of the action and without regard to the form.”

This provision was an enactment of a -rule which had been laid down in cases where the statute did not, in terms or by its language, require an interpretation which applied it to causes of action already accrued at the time of its passage. (Murray v. Gibson, 15 How. [U. S.], 421; Sohn v. Waterson, 17 Wallace, 597; Dash v. Van Kleeck, 7 Johns., 477; People v. Lord, 12 Hun, 287, and cases cited; Palmer v. Conly, 4 Denio, 375, Jewett, J. ; Wadsworth v. Thomas, 7 Barb., 445.) The rule is stated tersely by Earl, Commissioner, in N. Y. and Oswego M. R. R. Co. v. Van Horn (57 N. Y., 477), viz., “ A law is never to have retroactive effect unless its express letter or clearly manifested intention requires that it should have such effect. If all its language can be satisfied by giving it prospective operation, it should have such operation only.” (McCahill v. Hamilton, 20 Hun, 388; Auff’mordt v. Rasin, 23 Alb. Law J., 117, op. of Miller, J., U. S. C.) The ju'inciple is recognized in section 3352 of the Code of Civil Procedure.

The amendment of 1876 must be assumed to have been adopted by the legislature so as to act prospectively, as no contrary intent appears from its language.

Besides, reading section 94 of the Code of Procedure as thus amended by the act of 1876, in connection with sections 73, 74 and 89, as they are in the same title with section 94, we are of the opinion that it is clear that the intent of the legislature was that the amendment of 1876, though an independent act, should be construed with and governed by the provisions of the act amended.

Thus construed it operates prospectively.

The words in section 77 “ but the statutes now in force shall be applicable to such cases ” must, therefore, be held to qualify the amendment of 1876 so far as it prescribes a new rule of limitation.

This construction accords with the interpretation given to amendments in cases not unlike this one in principle.

The statute thus construed operates prospectively, and not upon causes of action in existence at the time when the act of 1876 became a law. (People v. Carnal, 2 Seld., 463; Ely v. Holton, 15 N. Y., 596; Benton v. Wickwire, 54 id., 226; Moore v. Mausert, 49 id., 332; In re Peugnet, 67 id., 444.)

The views already expressed lead to the conclusion that when the action was commenced the cause of action was not barred, and therefore the Circuit judge improperly nonsuited the plaintiff, and the motion for a new trial should be granted.

Motion for a new trial granted, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

New trial granted, costs to abide event.


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    EDWARD BARTON and another, as Administrators of NICHOLAS HOSNER, Deceased, Appellants, v. CHARLES HOSNER and others, Respondents.

      Fraudulent transfer of property — right of an administrator to sue to set it aside — when he may recover damages against the fraudulent grantee, if the property has passed to a Iona fide purchaser —1858, chapter 814.
    Under chapter 814, of 1858, an administrator may bring an action to set aside, as fraudulent as against creditors, a conveyance made by his intestate, when it appears that there are creditdrs whose debts were in existence at the time of the making of the conveyance, and that there is no personal property wherewith to satisfy their claims.
    Where in such an action it appears that the property has passed from the hands of the fraudulent grantee or transferee to a Iona fide purchaser, it seems that a recovery may be had against such fraudulent grantee or transferee for the damages sustained by the estate.
    Appeal by tbe plaintiffs from a judgment, entered upon a decision made at the Jefferson Special Term, dismissing the plaintiffs’ complaint, with costs.
    The intestate died February 15, 1879. In January, 1879, he was seized and possessed of two several parcels of land, and was the owner and in possession of a written contract whereby he had become the purchaser of a parcel of land of about five acres, which he had paid for prior to January 24, 1879. On that day he conveyed to Charles Hosner, the defendant, the said lands “ in trust, as guardian of Fanny Hosner, a daughter, to be used or disposed of for her support during her natural life, and all the surplus of the proceeds of the avails of said farm, after said support of Fanny Hosner, is to go to the heirs of Nicholas Hosner,” and on the same day he assigned the said written contract to the defendant Nelson Hosner in consideration of “ twenty-five dollars and services rendered.” On the 11th of March, 1879, the plaintiffs were duly appointed administrators of the goods, etc., of Nicholas Hosner, and duly qualified and filed their complaint to vacate such transfers and for other purposes.
    The inventory of the personal assets (not exempt) shows eleven dollars and eleven cents.

      There was proof given tending to show that the debts and liabilities due by the intestate were $500, or more. The funeral expenses remained unpaid. The trial judge found, viz.: “ That the plaintiffs are not in the capacity of administrators of the goods, chattels and credits of Nicholas Hosner, deceased, entitled to judgment vacating and setting aside the aforesaid conveyance of land made by said deceased; ” and ordered that the complaint be dismissed, with costs against the plaintiffs.
    Thereafter costs were awarded personally against the administrators by an order of the St. Lawrence Special Term, which was reversed by the General Term in December, 1880.

      D. Beaurup, for the respondents.

      Wayland F. Ford, for the appellants.
   Hardin, J.:

Can an administrator maintain an action to set aside a fraudulent conveyance made by the intestate, when it appears there are creditors and no personal estate wherewith to satisfy them, the debts represented by the administrators, and held by the creditors, having been in existence at the time of the fraudulent conveyance, is the question involved here and presented by this appeal. The question seems to have been considered in Livingston v. Livingston (3 Johns. Chy, 148) and resolved adverse to the administrator; also Loomis v. Tifft (16 Barb., 541). Judge AlleN, in that case, said that “the administrator cannot impeach the transfer of his intestate, except in cases allowed by law.” That case was decided in 1853, before the passage of the statute of 1858, upon which the plaintiffs rest their right to maintain this action. It has also been held by us in Richardson v. Root (19 Hun, 413), that a surrogate has no jurisdiction to determine the validity of any such transfer. We find that in 1854 it was held by the Court of Appeals, in Bate v. Graham (1 Kernan, 237), that it was the right and duty of an administrator of a deceased debtor, whose estate is insolvent, to impeach a sale of personal property, made by the deceased with intent to defraud creditors, and recover the same from the fraudulent vendee. And it was there held that ordinarily the creditor cannot maintain such an action, but when the administrator colludes with the fraudulent vendee and refuses to take proceedings to impeach his title and reach the property in his hands a creditor may maintain an action against him and the administrator for such purpose. This doctrine was approved in Sharpe v. Freeman (45 N. Y., 802); Phelps v. Platt (50 Barb., 430). We are brought, therefore, to inquire whether chapter 314 of the Laws of 1858, authorizes such an action as this one. We find no reported case adjudging the right of an administrator to maintain such an action. But we find the statute was considered in Osgood, Receiver, v. Laytin et al. (48 Barb., 463; S. C. affirmed, 5 Abbott [N. S.], 9.) Judge Lstgeaham says in that case, the act of 1858 “ authorizes receivers to treat as void all acts done in fraud, and makes the parties liable to the receivers for the same.”

Judge GeovbR in the same case (in Court of Appeals) says in respect to the act of 1858, “that the receiver of an insolvent corporation may for the benefit of creditors treat as void, and resist all acts done, transfers and agreements made in fraud of the rights of any creditor.”

The statute is, viz.: Section 1. That any executor, administrator, receiver, assignee or other trustee of an estate, or the property and effects of an insolvent estate, corporation, association, partnership or individual, may for the benefit of creditors or others interested in the estate or property so held in trust, disaffirm, treat as void, and resist all acts done, transfers and agreements made in fraud of the rights of any creditor, including themselves and others interested in any estate or property held by, or of right belonging to any such trustee or estate. Section 2. That every person who shall in fraud of the rights of creditors and others, have received, taken, or in any manner interfered with the estate, property or effects of any deceased person or insolvent corporation, association, partnership ovindwidual, shall be liable in the proper action to the executors, administrators, receivers or other trustees of such estate or property for the same, or the value of any property or effects so received or taken, and for all damages caused by such acts to any such trust estate.

The language of the second section seems to impose liability upon any person who shall, in fraud of the rights of creditors of “ the estate, property or effects of any deceased person * * * or insolvent individual,” have received or interfered with such property.

Tbe same section seems to declare that any such person “ shall be liable in the proper action to the executors, administrators, receivers or other trustees of such estate or property for the same, or the value of any property or effects so received or taken.” If the whole value of the property or effects is needed to satisfy creditors, then that may be reached by a recovery of the specific property by removal of the fraudulent obstructions or by a sale thereof, according to the general rules applicable in actions of equity, if only a portion thereof is needed to satisfy the demands of creditors, that would be the measure of the recovery.

If the property has passed from the hands of the fraudulent grantee or transferee to a bona fide purchaser, then a recovery in damages seems to be provided for.

Such an action in the name of an administrator, as the nature of the case requires, enures to the benefit of all creditors of a deceased person who suffer by the fraud. If brought by the administrator it avoids a multiplicity of actions in cases where the creditors are numerous; it accomplishes a fro rata distribution of the debtor’s estate when the sanie is insufficient to pay in full. It thus harmonizes results with general provisions made by law in respect to the distribution of debtors’ estates.

Osgood v. Laytin (5 Abbott [N. S.], 10), Barclay v. Quicksilver Mining Co. (6 Lansing, 31), McLean's Surrogate's Court (p. 414), Henderson v. Brooks (3 Thompson and Cook, 447), contain nothing in conflict with the views above expressed. The learned judge who delivered the opinion of the court in that case did not refer to, nor does it appear that his attention was called to the statute of 1858. He, however, observed, viz.: But the executor may doubtless trace the moneys of Erwin into the hands of Brooks, and if transferred to him in fraud of creditors, may recover them for the benefit of the creditors of the estate. I apprehend only so much could be recovered as would be necessary to pay the debts of the deceased.” Doubtless these observations were made in reference to the rule laid down in Bate v. Graham (supra), and were not based upon any consideration of the act of 1858.

We conclude that the Special Term fell into an error in holding that the plaintiffs “are not, in the capacity of administrators of the goods, chattels and effects and .credits of Nicholas Hosner, deceased,” entitled to any relief or recovery in this action upon the facts appearing at the trial.

It is not useful to determine upon this appeal whether the relief should he a removal of the fraudulent obstruction, or a recovery in damages. The doctrine of Allen, J., in Southard v. Benner (72 N. Y., 427), supports the right of the administrator to recover. It is there said that the statute of 1858 {supra), “ gave a new remedy in' favor of creditors at large, by giving to an assignee or trustee for their benefit a statutory right to property conveyed in fraud of creditors, and this statutory right took the place of the specific lien of individual creditors, required by law as a condition of their right to contest the validity of the transfers.”

It supercedes the necessity of a judgment and execution returned unsatisfied, as in case of a suit by a creditor. (Allyn v. Thurston, 53 N. Y., 622). True, in that case, the suit was by an assignee in bankruptcy, and it is declared by statute that such assignment in express terms vests the assignee with all property conveyed or transferred in fraud of creditors. But there, as here in the case of an administrator, the creditors defrauded are represented, and through the instrumentality of their representation are seeking redress for the wrong done them by the fraud complained of.

We are referred to Estes v. Wilcox (67 N. Y., 264), where the general rule in respect to the recovery of a judgment and return of an execution, as a condition precedent to an action by a creditor, is carefully laid down in the opinion of ANdeews, J. The statute of 1858 was not considered in that case, and the opinion has no expression applicable to the question before us.

Nor do the conclusions reached in Chillingworth v. Freeman (67 Barb., 379) conflict, as in that case the question was not raised which was considered in 67 New York (supra.)

In Evans v. Hill (18 Hun, 464) and Genesee River Nat. Bank v. Mead (18 Hun, 303) the general-rule that a simple contract creditor cannot maintain an action to set aside fraudulent conveyances was reasserted, following 67 New York (supra), Adee v. Bigler (81 N Y., 349.)

No allusion was made to the statute now brought in review.

If the views already stated are adopted, it follows that the judgment should be reversed and a new trial ordered, with cost of the appeal to abide the final award of costs.

Judgment reversed and a new trial ordered, with costs of appeal to abide the final award of costs.

Talcott, P. J"., and Smith, J., concurred.

Ordered accordingly.


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    EUNICE WARREN, Appellant, v. J. HENRY CLEMENT and others, Commissioners of Highways, etc., Respondents.

      Gom/mümners of highways — liability of, for failure to repair a highway — when they are not excused on the ground simply that they ham no funds.

    To relieve tlie commissioners of highways of a town from personal liability to one who has been injured by their neglect to repair a defect -known by them to exist in the highway, it is not sufficient to show that they had no funds on hand wherewith to cause the necessary repairs to be made, but it must also be shown that they had Sought through the proper channels to procure the said funds ; and their failure so to apply therefor will render them liable for the damages sustained by reason of such defect.
    Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      John H. Cunneen, for the appellant.

      Thompson & Spencer, for the respondents.
   Hardin, J.:

This action was brought to recover damages sustained by the plaintiff and her assignor while crossing a bridge over Oat Orchard creek in the town of Carlton, in which town the defendants were and had been for two years the commissioners of highways.

It was alleged that the defendants suffered for a long time, knowingly, a steep and artificial approach to said bridge on the south end thereof to remain in a dangerous and insecure condition, by omitting to erect suitable guards on the sides of tbe approaches for tbe protection of tbe traveling public.

Tbe injuries complained of were sustained by tbe plaintiff and ber husband, her assignor, while passing along tbe highway and over tbe bridge on the evening of November 23, 1877.

Evidence was given tending to show that tbe plaintiff and ber assignor were free from contributory negligence on tbe occasion when tbe injuries were received, and likewise tending to show that tbe approaches were unsafe and bad been for two years, and were so known to be by tbe defendants, although tbe defendants gave evidence tending to show to the contrary.

It was conceded that no railing was constructed on such approach, and tbe said omission to construct such railing was tbe negligence imputed to the defendants, and tbe expense of constructing such railing would not exceed tbe sum of five dollars.

The plaintiff gave evidence tending to show that tbe defendants had not during their term of office included in any statement made by them to the supervisor of the town any estimate of the expense of constructing a railing on the approach in question, or required any appropriation to be made for such purpose, nor made application to the town meetings of the town or any of them, or to the town auditors, or met to determine what amount was necessary or should be borrowed to construct said railing, or taken any steps or made any effort -whatever to have the board of supervisors authorize the supervisor of the town to borrow such sum as would be necessary, upon the credit of the town^ to put said approach in a safe condition or construct said railing.

The court charged the jury that “ if at the time of the injury the approach was out of repair and in an unsafe and insecure condition, and the plaintiff’s injuries happened because the approach was so unsafe and insecure, and she was free from negligence on her part, and at that time the defendants had no money or funds on hand applicable to making repairs, then they were not liable to her, even if they did know that the approach or bridge was unsafe and out of repair.” The plaintiff took an exception.

It is now well settled that commissioners of highways having funds in their hands applicable to repairs, are liable for negligence in omitting the discharge of their duty. (Adsit v. Brady, 4 Hill, 630; Garlinghouse v. Jacobs, 29 N. Y., 297; Robinson v. Chamberlain, 34 id., 402.) The liability is one which may be enforced against the commissioners personally. (Lament v. Haight, 44 How., 5, op. of Daniels, J.)

The town is not bound to reimburse the commissioners, and cannot by mandamiis be required to indemnify the commissioners against such liability, or reimburse them for losses and expenses thus incurred. (People ex rel. Loomis v. Town Auditors, 75 N. Y., 316; People ex rel. Van Keuren v. Town Auditors, 74 id., 310; Olmsted v. Dennis, 77 id., 382.) Nor is it “needful in such a case to show that the public officer charged” acted willfully or maliciously. (77 N. Y., 382, supra; Day v. Crossman, 1 Hun, 570.)

The important fact to be established in such a case, upon which to build the liability of the defendants, is negligence, omission of duty leading to the injury complained of.

H the defendants, commissioners of highways, have funds in their hands, “or authority to procure such funds,” and neglect their duty in the premises, they are liable to a person receiving injuries without any contributory negligence. (Hover v. Barkhoof, 44 N. Y., 113; 77 id., supra.)

Judge Gilbert says, in Bostwich v. Barlow (14 Hun, 179), “ Their duty is not discharged by waiting to be notified that a highway or bridge is out of repair. * * * The duty involves the exercise of a reasonable degree of watchfulness in ascertaining the condition of the highways and bridges from time to time, and of preventing them from becoming dilapidated or dangerous.”

It is difficult in this case to suppose the defendants performed their duty if, during the two years they knew that the approach was unsafe and insecure and the place dangerous, they omitted to repair it or guard it by the expenditure of five dollars of the funds passing through their hands in that period. But if we so assume, we come to the question raised during the trial, in respect to their omission to use the powers given them to apply for funds for such purpose.

It was their duty to make the effort to obtain means to use the power given them, and apply through the proper channels for the needed funds. Failing so to do, they were negligent. (Lament v. Haight, 44 How., 3; Hutson v. The Mayor, 9 N. Y., 168; Hagadorn v. Raux, 72 id., 583; 1 R. S. [6th ed.], 867, § 26; 2 id., 150, §§ 84, 85; Laws of 1874, chap. 260; Laws of 1875, chap. 482.)

A reasonable official diligence to obtain the funds, when the power to apply for them is conferred, should be shown, to justify an exoneration from the charge of negligence when the commissioners have knowledge of defects and unsafe condition of road or bridges, or approaches thereto. The point involved here was considered by Daniels, L, in Lament v. Haight (44 How., 1); and though other questions were involved in that case and perhaps controlled the decision actually given by the court, we are satisfied with the correctness of the views there expressed, and apply them to the questions now before us in this case.

We think the charge given by the court erroneous, and the refusals to charge improper. We must therefore reverse the judgment.

Judgment reversed and a new trial ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

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


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    RICHARD HARDENBROOK, GEORGE H. HARDENBROOK and EDWARD S. HARDENBROOK, Respondents, v. JOHN W. COLLSON, Appellant.
    Factor— a debt due from, for goods sold on commission, is not covered by a discha/rge in bankruptcy.

    A debt due from a factor for goods sold by bim on commission, is a debt created in a fiduciary character within the meaning of the bankrupt act, and is not discharged by a composition made by the debtor in accordance with the provisions of the said act.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury. The plaintiffs were co-partners from 1868 to 1876 at Bath, Steuben county, and delivered to the defendant at divers times articles of hardware, upon the agreement that the defendant should receive and sell them for plaintiffs, and pay over to the plaintiffs the moneys received upon the sales after deducting ten per cent for commissions to defendant for making such sales.
    The defendant failed to pay over sixty-six dollars and eighty-five cents due to the plaintiffs under this agreement. This action was brought to recover the same. The defense was: (1st.) That the defendant did not receive the goods in a fiduciary character, and was thereafter discharged from the debt by a composition in bankruptcy, and a tender of the money in court representing the dividend under such composition; and (2d.) A counter-claim of twenty dollars arising out of the indorsement of a note by the plaintiffs.

      McMaster & Parkhurst, for the appellant.

      B. L. Smith and M. Ramsey Miller, for the respondents.
   Hardin, J.:

It was decided by this department, in Whitaker, Treasurer, etc., v. Chapman (3 Lans., 155), that a debt due from a factor for goods sold by him on commission, is a debt created in a fiduciary character within the meaning of section 33 of the bankrupt act of 1867 (ch. 176), and is not covered by the debtor’s discharge in bankruptcy. This case has not been overruled. It has been referred to and approved by subsequent cases. It was quoted by Miller, J., in Barber v. Sterling (68 N. Y., 273; see, also, Roberts v. Prosser, 53 id., 260); Platt v. White (5 Denio, 271; Duguid v. Edwards, 50 Barb., 288; Standard Sugar Refinery v. Dayton, 70 N. Y., 486).

Section 5117 of the Revised Statutes of the United States is, viz.: “No debt created by * * * the bankrupt * * * while acting in any fiduciary character shall be discharged by proceedings in bankruptcy.” It has been held that the meaning of the words “fiduciary capacity,” having been ascertained and declared by judicial construction of the act of 1841, is affixed to the general term, and the fixed definition is carried into the new statute of 1876. (Cronan v. Cotting, 104 Mass., 245.) It was held in Mayor, etc., v. Walker (11 B. R., 478) that an auctioneer acts in a fiduciary capacity or character, and his discharge does not relieve him from his liability for goods placed in his charge for sale. (Carlin v. Carlin, 8 Bush, 41; Halliburton v. Carter, 10 B. R., 359; S. C., 55 Mo., 435; Treadwell v. Holloway, 12 B. R., 61; S. C., 46 Cal., 547.)

The appellant’s learned counsel cites Hennequin et al. v. Clews (77 N. Y., 429), and argues that it is an authority upholding a contrary doctrine. We do not so understand that case. The defendant had received certain securities, as “ pledgee, with no other rights in respect to them than such as that relation entitled him to,” and had wrongfully hypothecated or sold them. The court held that his discharge in bankruptcy operated upon the plaintiff’s claim, and that the defendant was not, after such a discharge, liable to an order of arrest.

Nor does the case of Neal v. Clark (95 U. S., 704) aid the appellant. That case simply holds that an executor who, without any positive action, affirmative fraud,, had committed a devastavit, was discharged by proceedings in bankruptcy.

Nor can the composition proceedings have any greater effect than would a discharge. If one would not cut off the debt, the other does not do it. (Libbey v. Strasburger, 14 Hun, 120; Argall v. Jacobs, 21 id., 115.)

The second defense, predicated upon a separate, independent contract, was improperly stricken out. (Pattison v. Richards, 22 Barb., 145; Chambers v. Lewis, 11 Abb., 210; Allen v. Patterson, 3 Seld., 476; Conaughty v. Nichols, 42 N. Y., 83; Glen & Hall Manufg. Co. v. Hall, 61 id., 226.)

There was evidence upon which the jury were warranted in finding there was no authority to sell upon credit, and there was no proof of a custom to sell on credit shown to have been known to the plaintiff. (Duguid v. Edwards, 50 Barb., 288.)

We see no other error in the course of the trial calling for a reversal of the judgment.

Judgment reversed and a new trial ordered, with costs to abide the event, unless the plaintiff stipulate to reduce the verdict and judgment, deducting therefrom twenty dollars with interest thereon from the 30th day of November, 1873, in which case the judgment is affirmed, with costs.

Talcott, P. J., and Smith, J., concurred.

Ordered accordingly.


author: Talcott, P. J.

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    THOMAS B. KENNEY v. LOUISA D. WALLACE.

      •Conveyance of land to a railroad — when an absolute title thereto to is conveyed— the habendum clause of a deed when repugnant to the grant, is void.

    Action submitted upon a case agreed on by tbe parties under section 1239 of the Code of Civil Procedure, to determine the rights of the parties in and to a certain strip of land in Ellisburgh, Jefferson county.
    On the 15th day of November, 1850, Wyman Clark, then being the owner in fee of a parcel of land embracing the premises in question, in conjunction with his wife, conveyed the same by deed to the Sacketts Harbor and Ellisburgh Pailroad Company.
    The deed, by its terms, purported to “ grant, release, quit-claim ■and convey ” to the railroad company the premises described, containing about four five hundred and thirty one thousandths of an acre, “ to have and to hold the said premises unto the said company and their assigns forever, for the uses and purposes of the said companyand the said deed contained a covenant that the grantors, at the time of the execution of the deed, had a full and perfect title to the premises in fee, free from all incumbrances, and a full right to grant and convey the same. The railroad company went into possession under the deed of Wyman Clark and wife, and so continued and remained until about the 20th of January, 1859, when its lands, stock, etc., including the premises in question, were sold on the foreclosure of a first mortgage, made by the said railroad company, by a referee appointed by the court in the foreclosure case to make the sale, and conveyed by the said referee to one John McKesson, from whom the plaintiff derived title thereto.

      For some time before 1876, Clark had assumed to control and occupy the land, but April 1, 1876, he and his wife executed a deed thereof to the defendant, who then went into possession of the strip, and has since then assumed to occupy and control it.
    The defendant claimed that the deed from Wyman Clark and wife to the Sackett’s Harbor and Ellisburgh Bailroad Company, did not convey an absolute title, but only such an interest as would allow such company and its successors or assigns, to own and control the same so long as they used it for railroad purposes. That when they ceased to use it for such purposes, it reverted to the said Wyman Clark and his heirs; and that said defendant was the owner by virtue of the conveyance from Wyman Clark and wife to her in April, 1876.
    The court at General Term said: “ This presents the question which was for a considerable time much mooted in the courts of several of the States, as to what is the effect of a conveyance in fee of lands to a railroad company; whether by such a conveyance the railroad company only takes an easement in the land, subject to reversion to the grantor or his heirs when the land shall cease to be used for the purposes of the railroad company, or whether the latter may lawfully grant and convey the land in fee to any subsequent purchaser.
    It seems to be now well settled that such a conveyance passes the entire fee of the land to the railroad company, and that it may convey to a subsequent purchaser the entire and absolute fee, discharged of any right of reverter in the grantor or his heirs. (Nicoll v. The N. Y. and Erie E. Co., 12 Barb., 460.) Affirmed in same case on appeal. (12 N. Y., 121; Page v. PLeineberg, 40 Yt., 81; and see also People cmd Health Comrs. of H. Y. v. Mauran, 5 Denio, 398, 401; Heath v. Bcvrmore, 50 N. Y., 3Ó2.)
    In the case cited from 5 Denio, it was held that when a corporation had taken the title in fee, that such title was not impaired by the dissolution of the corporation, and in the case in 40 Yermont, it was held that the land did not revert on its abandonment by the railroad company.
    We must hold, therefore, that the plaintiff is the owner of ■the four five hundred and thirty one thousandths acres of land in controversy and entitled to recover the same. The language of the habendum clause seems to be somewhat relied ou to determine the interest granted by the deed of Wyman Clark and wife to the railroad company, and to restrict and lessen the estate purporting to be conveyed by the granting part of the deed. Though this was originally, perhaps, used to determine the interest granted, yet it cannot have that effect now, and has degenerated into a mere useless form; it is void if it be repugnant to the estate granted. (4 Kent’s Com., 468; Faguarson v. FicheTberger, 15 Md., 63; Tyler v. Moore, 42 Penn. St., 374, 387.)
    Judgment is ordered that the plaintiff do recover of the defendant the four five hundred and thirty one thousandths acres of land mentioned and described in the case. submitted, in fee simple, together with such costs as are allowed by law in such cases.

      H. Clay Hawes, for the plaintiff.

      Louisa D. Wallace, defendant, in person.
   Opinion by

Talcott, P. J.

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

Judgment ordered for the plaintiff, with costs.


text:
    REBECCA D. TOLMAN, Respondent, v. JULIA A. KING, Appellant, Impleaded with JOHN H. IRELAND and BENJAMIN W. BAUM.

      Evidence — when the belief of a witness is inadmissible.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to foreclose a mortgage made by one John H. Ireland to Benjamin W. Baum for the sum of $2,000, given to secure a balance of the purchase-money unpaid on a conveyance from Baum to Ireland of a parcel of land in Syracuse, and now held by the plaintiff by virtue of certain mesne assignments. This mortgage was dated the 23d day of August, 1866, and recorded in the Onondaga county clerk’s office on the 12th day of March, 1868. About the 19th of November, 1867, Ireland also exeexited for a valuable consideration another mortgage upon the same property to the defendant Julia A. King, to secure the payment of §1,000, which last was recorded in the office of the clerk of Onondaga county November 25, 1867. This moi'tgage was given upon a loan of the money thereby secured from Julia A. King to the mortgagor, Ireland. The complaint charges that before the execution of the mortgage to King, Ireland gave her full notice of the mortgage to Baum, and that she knew of the existence thereof at the time when she took the second mortgage and paid the consideration. This is denied by the defendant King, who claims that she had no knowledge or information of the first mortgage at the time she took the second, and claims that she made the loan through one Ostrander as her agent, who was furnished with a partial search, and who went .to the clerk’s office and continued the search down, and finding no prior incumbrances she thereupon made the loan and advanced the consideration, and she puts herself on the provisions of the recording act, claiming priority for her mortgage over that given to Baum.
    Upon the trial, Ireland was called as a witness for the plaintiff, and testified as to a conversation had, with Ostrander when the second mortgage was taken: “ I cannot remember whether Mr. Ostrander during that negotiation asked me whether there were any liens on the property; I don’t remember the convei’sation with him as to whether there was any prior moi’tgage on the property; I think there must have been a conversation between us as to whether there was any prior mortgage upon the property, but I don’t recollect that there was such a conversation, or what it was if there was one.”
    The plaintiff’s counsel propoxxnded to the witness the following question: “What is your belief about having told Ostrander of the prior mortgage ?”
    This was objected to as incompetent. The objection was overruled by the referee, and the defendant excepted. The witness answered: “ I believe if he asked me the question I told him the fact about it; there is no doubt in my mind but what Mr. Ostrander asked me if there was any incumbrance on the property; if he asked me aboxit it I told him the truth; I knew that this mortgage was on the property; I did not know of any other incumbrance; if I told him of any incumbrance I told him of this one; there was no other; I don’t remember talking with him once, but I have no doubt that I did; I have no doubt that I talked with him more than once; 1 may have talked with him once, half a dozen times, or twenty times; I don’t think my memory is remarkably good; I would not be likely to remember the details of a conversation for a number of years; I would be more likely to remember the substance of a conversation than the words; about all I recollect is, that I got a loan from Mr. Ostrander; I don’t remember the conversation; I simply remember getting the loan and the amount of it; I don’t know where the papers were drawn.”
    Being cross-examined, the witness said : “ When I say I have no doubt that Mr. Ostrander asked me about the prior incumbrances, I speak as a business man, and not from any recollection; I think such a question probable.”
    The court at General Term said : “ The difficulty with the evidence is, that it expresses only the present belief of Ireland; not from any, even the faintest recollection of the fact, but from his conclusions by a process of reasoning ‘as a business man,’ that probably Ostrander asked him whether there was any prior incumbrance on the property, and if so he must have told him the truth about it. The counsel for the plaintiff cites two recent cases in the Court of Appeals as authority for the proposition that the witness’ belief may be asked. The first is that of King v. The IT. P. 6'., eta., It. R. Qo. (72 N. Y., 608), in which case it was held that a witness might express his belief as to the identity of a piece of iron; the court saying that upon a question of identity a witness may testify to his opinion or belief. And the other is the case of Blake v. The People (73 N. Y., 586), where, on the trial of an indictment for murder, a witness for the people was asked on cross-examination if he would swear that the deceased was not choking the prisoners. He answered: “ I would not swear it, but I don’t think he was.” The last part of the answer the prisoners’ counsel moved to strike out, which motion was denied. This refusal was held no error; that it was competent for the witness to testify to an impression or belief on the subject,” citing several authorities, of which an analysis will not be undertaken at this time. In the report of the case of Blake v. The People {supra), it is stated that the evidence was elicited on a cross-examination of the witness, and on a cross-examination many tilings are permitted to be asked by way of “proving the mind of a witness, and testing his capacity and consistency,” which would not be allowable on a direct examination. The plaintiff’s counsel claims that his examination of Ireland was in the nature of a cross-examination. That is true so far as he was allowed to put leading questions to the witness; but evidence, whether on cross or direct examination, in order to establish a vital and substantive fact, must be direct and positive, and tend to establish the fact in question..
    The general rule is laid down in Best on Evidence, 511: “ The use of witnesses being to inform the tribunal respecting facts, their opinions are not in general receivable in evidence. * * * It is no satisfaction for a witness to say that he thinks or persuadeth himself. Eirst, because the judge is to give an absolute sentence, and for this ought to have a more sure ground than thinking; secondly, the witness cannot be sued for perjury.” The subject is treated with marked ability and discrimination in a note to the case of People ex rel Norton v. New York Hospital (3d Abbott’s New Cases, 234), where it is said: ‘ Belief or inference, such as the mind forms by its own secondary processes — this the law recognizes as uncertain — ' not only easily simulated by a dishonest witness, and difficult if not impossible to be tested, but fluctuating and reversible in the mind of an honest witness by process of reflection, without new knowledge. * * * The law excludes all testimony of this class, with two exceptions: 1. Belief, or inference, may be competent where the intent of the same person is material. * * * 2. In some cases the belief or impression produced on a witness’ mind, at the time of the occurrences to which he speaks, is admitted as giving the necessary and proper color to his testimony to .the occurrence as circumstantial evidence. * * * But in both these exceptional classes of cases it is never the present belief of the witness that is received; it is the belief concurrently existing with the incident of which he speaks, or then instantly produced in his mind, and so connected with the incident as to form, so to speak, the mental part of the res gestee. * * * The distinction between ‘ impression ’ or uncertain recollection of facts and belief or inference, is one of kind, not of degree. The former is faint or partly obliterated memory, and is competent; the latter is a secondary mental impression by deduction, and is not competent (unless in the cases stated above), however distinct and positive.
    £ The present belief of a witness, sometimes inquirable into on cross-examination, is heard, not because it has any competency on the issue, but, if at all, because it is a proper mode of probing the mind of the witness and testing his capacity and consistency.
    £ In the case at bar the onus was upon the plaintiff to prove a want of good faith in the holder of the second mortgage, not only because that was the gravamen of the plaintiff’s complaints, but because good faith is always to be presumed in favor of a purchaser for a valuable consideration until the contrary appears by clear and explicit evidence, especially in a case where it is attempted to break in upon the. plain provisions of the recording act; and we cannot see in the case any evidence upon which the referee was justified in coming to the conclusion that the defendant King was not a mortgagee in good faith, without any information of the existence of the prior mortgage from Ireland or from any other source.'"

      Cowles & Wright, for the appellants.

      C. B. Sedgwick, for the respondent.
   Opinion by

Talcott, P. J.

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

Judgment reversed and new trial ordered before another referee, costs to abide event.


author: Talcott, P. J.;

text:
    Alvah Kellogg, Appellant, v. John S. Clark and another, Administrators, etc., Respondents.

   Judgment affirmed with costs to the respondents. Opinion by

Talcott, P. J.;

Smith, J., not voting.


text:
    Marie Antoinette Sanford, Respondent, v. Ann H. Preston, Appellant.
   Order reversed with ten dollars costs and disbursements and motion to vacate attachment granted with ten dollars costs. Opinion by

Talcott, P. J.


author: Smith, J.

text:
    Carrie Stevenson v. Abraham H. Baldwin and others. Bradford Dyer and another, as Committee, etc., v. Abraham H. Baldwin and others. Charles Forester v. Bradford Dyer and another, as Committee, etc.
   Order appealed from reversed with ten dollars costs and disbursements to the appellant, to be paid by the respondents as committee, etc., out of the estate in their hands. Opinion by

Smith, J.


author: Hardin, J.

text:
    James W. Combs and others, Appellants, v. Lewis Combs and others, Respondents.
   Order of Special Term affirmed, with ten dollars costs and disbursements. Opinion by

Hardin, J.


text:
    Daniel W. Brown, Respondent, v. J. Paul Grupp and another, Appellants.
   Judgment reversed, and new trial ordered before another referee, costs to abide event. Opinion by

Smith, J.


text:
    John Machen, Respondent, v. The Lamar Insurance Company of New York, Appellant.

   Judgment affirmed. Opinion by

Hardin, J.


text:
    John Machen, Respondent, v. The Manufacturers’ Insurance Company, Appellant.
   Judgment affirmed on opinion of Hardin, J., in last preceding case.


text:
    Mary L. Fisher and others, Respondents, v. Charles W. Hersey and others, Appellants.
   Judgment and order affirmed, with costs. Opinion by

Talcott, P. J.


text:
    Harrison S. Dean, as Executor, etc., Appellant, v. Jerome B. Roseboom, Respondent.

   Judgment affirmed. Opinion by

Smith, J.


text:
    Andrew J. Ensign, Appellant, v. St. Louis and San Francisco Railroad Company, Respondents, and two other cases.
   Order affirmed, with ten dollars costs in one case only> and disbursements in all the cases, without prejudice to the right of the plaintiff to take such steps as he shall be advised to vacate the submission. Opinion by

Hardin, J.


text:
    Benjamin Bodfish, Respondent, v. Warren S. Bush, Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide event, unless the plaintiff shall stipulate to reduce the amount of his judgment by deducting therefrom, as of the date of the report, the sum of fifty dollars and forty-three cents, in which case the judgment, as so reduced, is affirmed. Opinion by

Talcott, P. J.


author: Smiti-i, J.;

text:
    Alonzo H. Failing and others, Respondents, v. William G. Fargo, as President, etc., of the American Express Company, Appellant.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Smiti-i, J.;

Hardin, J., not sitting.


text:
    Charles F. Wadsworth and others, Respondents, v. Thomas L. Harrison, Appellant.

   Judgment affirmed. Opinion by

Smith, J.


text:
    Charles W. Hersey and others, Appellants, v. Mary L. Fisher and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Smith, J.


text:
    George Shoemaker and others, Appellants, v. Edwin H. Hastings and others, Respondents.

   New trial ordered, costs to abide event. Opinion by

Talcott, P. J.


text:
    Joseph Disher, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment affirmed. Opinion by

Hardin, J.


text:
    Andrew Wambach, Administrator, etc., Respondent, v. William Wardell, Appellant.
   Judgment affirmed, with costs. Opinion by

Talcott, P. J.


text:
    Samuel H. Bebb, Respondent, v. Andrew Young, Appellant.
   Judgment and order affirmed. Opinion by

Talcott, P. J.


text:
    George Mathes, as Committee, etc., and another, Appellants, v. Rebecca E. Mathes, Respondent.
   Judgment reversed and new trial ordered, costs to abide event. Order of reference vacated. Opinion by

Hardin, J.


text:
    Charles C. Steele, Appellant, v. Asa B. Ward and others, Respondents.
   Decree of surrogate refusing to admit the will to probate reversed and issues directed to be made up to try the questions arising upon the application to prove the will at the next Circuit Court to be held in the county of Jefferson. Opinion by

Smith, J.


text:
    Hannah Barlow, Respondent, v. William J. Barlow, Appellant.
   So much of the order appealed from as refuses to set aside the order for the publication of the summons, affirmed; and so much of said order as refuses to set aside the attachment, reversed, and the attachment set aside with ten dollars costs, but with costs of this appeal to neither party.


text:
    Henry W. Smith, Respondent, v. Benjamin T. Trimmer, Appellant.
   Judgment reversed and new trial granted before another referee, costs to abide event. Appeal from order denying motion for new trial on the ground of newly-discovered evidence reserved. Opinion by

Talcott, P. J.


author: Smith, J.;

text:
    Benjamin E. Bushnell, Appellant, v. James Kenna, Respondent.
   Judgment affirmed. Opinion by

Smith, J.;

Hardin, J., not sitting.


text:
    Albert V. Mayhew and others, Respondents, v. Harvey Bellinger and others, Appellants.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Hardin, J.


text:
    Hannah Campbell, Respondent, v. Alfred Crandon, Appellant.
   Judgment and order reversed and new trial ordered in the Onondaga County Court, costs to abide event. Opinion by

Talcott, P. J.


text:
    Amaziah Ellis, Respondent, v. August Horrman, Impleaded, etc., Appellant.

   Judgment affirmed, with costs.

Hardin, J., not sitting.


text:
    Alfred H. Griswold, Appellant, v. The Onondaga County Savings Bank, Impleaded, etc., Respondent.
   Judgment affirmed, with posts.


text:
    Fridoline Held, as Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order reversed and new trial ordered, costs to abide event. Opinion by

Hardin, J.


text:
    Aaron R. White, Respondent, v. The Utica and Black River Railroad Company, Appellant.

   Judgment and order affirmed. Opinion by

Smith, J.


text:
    Edward W. Sentelle, Respondent, v. Oswego County Farmers’ Insurance Company, Appellant.
   Judgment and order reversed and a new trial ordered, with costs to abide the event, unless the plaintiff shall stipulate to reduce the verdict and judgment, $200, and interest from April 1, 1876, in which case the judgment as so modified and the order are affirmed, with costs. Opinion by

Hardin, J.


text:
    The People, etc., Appellant, v. Harvey W. Nash, Respondent.
   Appeal dismissed. Opinion by

Talcott, P. J.


text:
    Jane Holmes, Executrix, etc., Respondent, v. Allen Wood, Appellant.
   Judgment affirmed. Opinion by

Hardin, J.


text:
    Didymus Thomas, Respondent, v. The Utica and Black River R. R. Co., Appellant.

   Judgment and order affirmed, with leave to defendants to withdraw their demurrer and to answer, on payment of costs.


text:
    The Merchants’ Bank, Respondent, v. Charles G. Myers, Appellant.

   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Smith, J.;

Hardin, J., not sitting.


text:
    William H. Bostwick, Respondent, v. Sarah A. Andres, Appellant.

   Judgment affirmed, with costs.


text:
    William D. Taber, Appellant, v. The Board of Supervisors of Erie County, Respondents.
   Order denying a new trial reversed and new trial granted, costs to abide event. Opinion by

Smith, J.


text:
    Willis S. Nelson, Respondent v. Daniel Neil, Appellant.

   Judgment and order denying motion for new trial on the minutes affirmed, and order denying motion for a new trial on the ground of newly-discovered evidence affirmed, with ten dollars costs and disbursements. Opinion by

Hardin, J.


text:
    Frank Salladin, Respondent, v. James Giles, Appellant.

   Judgment of County Court affirmed.


text:
    Lorenzo D. Waite, as Overseer of Alms, etc., Respondent, v. Thomas Kenna and others, Appellants.

   Judgment appealed from reversed, and judgment ordered for defendants. Opinion by

Smith, J.;

Hardin, J., not voting.


author: Hardin. J.

text:
    Dorr Heald, Appellant, v. Ellis Meaker, Respondent.

   Judgment affirmed. Opinion by

Hardin. J.


text:
    Nathan Johnston, Respondent, v. Abram A. Barnes and others, Appellants. Abram A. Barnes, Appellant, v. Nathan Johnston and others, Respondents.

   Judgment in each case reversed, and new trial granted in each case before another referee, costs to abide event. Opinion by

Talcott, P. J.


text:
    The Johnston Harvester Company, Appellant, v. Peter Meinhardt and others, Respondents.

   Order appealed from affirmed, with ten dollars costs and disbursements. Held, that -the acts not controverted, to restrain which an injunction was asked for, did not constitute an invasion of any clear right of property vested in the plaintiff ; that it does not appear that such acts, whether done or threatened to be done, resulted or would have resulted in irreparable injury to the plaintiff; and that the discretion of the Special Term in refusing to continue the injunction was properly exercised.


text:
    Sophia Darling v. Robert P. Cole and others.
   Motion to amend order as asked for in the notice of motion granted, without costs of the motion to either party.


text:
    In the Matter of the Application, etc., v. Alonzo Bradner and another.
   Motion to amend the order as asked for in the notice of motion granted.


text:
    Joseph Cowell, Plaintiff, v. The Village of Weedsport, Defendant.
   Refused to be heard because the case is not indexed.


text:
    Charles Burlingame, as Assignee, etc., Respondent, v. William T. Fonda, Appellant.
   Judgment affirmed.


text:
    Joshua W. Chase, Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant.
   Judgment and order affirmed.


text:
    Charlotte L. Wright, Appellant, v. Andrew J. Read, Defendant.
   New trial denied and judgment ordered for defendant on the nonsuit. Held, that from the plaintiff’s opening it appears that the intoxication of Charles H. W right was not the proximate cause of his death.


text:
    A. Dyonisius Remington, Appellant, v. Gideon Towsley, Respondent.
   Judgment and order affirmed


text:
    Andrew J. Forbes, Respondent, v. J. Henry Powell, Appellant.
   Judgment of the County Court affirmed. Held, that the justice erred in overruling the objection made to the question put to the defendant as to the amount of damage he had sustained by the loss of the service of his horse, and that we cannot say that the testimony given in answer to the question did not harm the plaintiff. Also, that such error was sufficiently pointed out in the notice of appeal.


text:
    Edward Barton and another, Administrators, etc., Respondents, v. Charles Hosner and others, Appellants.
   Motion for reargument denied.


text:
    Bridget Leonard, Respondent, v. The City of Watertown, Appellant.
   Judgment and order affirmed.


text:
    Godfrey Tallinger, Respondent, v. Lodowick M. Wooden, Appellant.
   Judgment affirmed.


text:
    George A. Sabey, Respondent, v. Jared P. Wheeler, Appellant.
   Order and judgment reversed.


text:
    The People ex rel. Mary Will, Respondent, v. Eli T. Bangs and Mary E. Bangs, Appellants.
   Motion for leave to appeal to the Court of Appeals granted on the ground that the case contains questions of law which ought to be reviewed, by that court, and motion for reargument denied.


text:
    Cheney Bracy, Respondent, v. William O. Gile, Appellant.
   Motion for reargument denied, with ten dollars costs.


text:
    J. Foreman Wilkinson, Respondent, v. The Syracuse, Chenango and New York Railroad Company and others, Appellants. Wilbur M. Brown, as sole Executor, etc., Respondent, v. The Syracuse, Chenango and New York Railroad Company and others, Appellants.

   Order appealed from in each case reversed, and injunction order in each case vacated, with ten dollars costs in one action and disbursements in each action.


text:
    Emeline S. Hobart, Executrix, v George H. Hobart, Executor, etc., Respondent, and Delos A. Bellows, Referee, Appellant.
   Motion for reargument and for leave to amend, etc., denied, with ten dollars costs.


text:
    Thomas J. Patterson, Appellant, v. Eunice M. Hamilton, Respondent.
   Motion to dismiss appeal denied, with ten dollars costs of opposing.


text:
    Same v. Same.
   Motion to amend petition, etc., denied, with ten dollars costs of opposing.


text:
    Same v. Same.
   Motion to strike case from the calendar, and for judgment granted, with ten dollars costs, unless the appellant, within thirty days after service of this order, serve the necessary papers for argument and pay the costs above mentioned, and ten dollars term fee, in which case the motion is denied.


text:
    In the Matter of the Proceeding to Disbar or Suspend William J. Lang, an Attorney and Counsellor, etc.
   Order to show cause as prayed for in the petition, granted, and ordered that a copy of said petition and of the affidavit accompanying the same, and of the order to show cause, be served on said Lang at least twenty days before the next General Term of this court.


text:
    Louis H. Eckert, Respondent, v. William D. Ellis, Impleaded, etc., Appellant.

   Motion to strike ease from calendar and for judgment of affirmance, granted, with ten dollars costs of motion, unless the appellant, within thirty days after service of this order, shall serve the requisite printed papers as required by the rule, >and pay the respondent’s attorney, ten dollars costs of this motion and ten dollars term fee for the present term, in which case the motion is denied. And in case the appellant complies with the conditions of this order, it is further ordered that the said case, which was passed at the adjourned term in March last, be restored to the position on the calendar which it held before it was so passed


text:
    Gilbert Forbes, Respondent, v. George Garfield, Impleaded, Appellant.
   Order reversed and defendant’s motion for leave to amend his answer granted, on condition that the defendant pay all the costs of the action accruing since the service of the answer, including ten dollars costs, and the disbursements of this appeal, and in such case, the verdict to stand as to the other issues made by the answer, and the judgment to stand as security as to the damages, and to be vacated as to the costs, and the party succeeding upon the amended answer to be at liberty to enter a further judgment; and if said costs are not paid by the defendant, as above provided, then the order appealed from is affirmed, with ten dollars costs and disbursements.


text:
    Philip Brundage, as Administrator, etc., Respondent, v. Martin Fox and others, Executors, etc., Appellants.
   Appeal dismissed without costs. Held, that the order made at the Circuit is not appealable.


text:
    George Blount, Respondent, v. Andrus Moss, Appellant.
   Order affirmed with ten dollars costs and disbursements. Held, that the motion was too late, as the time to answer had expired.


text:
    Ira L. Wetmore, Appellant, v. Elijah Arnold and another, Executors, etc., and others, Respondents.

   Decree of surrogate affirmed, with costs, to he paid by appellant, and proceedings remitted to the surrogate of Ontario.


text:
    Joseph Tuttle v. Thomas J. Reed.
   Motion to strike case from the 'non-enumerated calendar denied, without costs.


text:
    John P. O’Neil, as Receiver of the Continental Life Insurance Company, Respondent, v. William H. Montgomery and another, Impleaded, etc., Appellants; two cases.
   Order appealed from affirmed as to each case, with ten dollars costs and disbursements in one case only.


text:
    The People ex rel. Cyrus Jefferson, Respondent, v. Edgar K. Smith and others, Assessors of the Village of Warsaw, Appellants.
   Judgment affirmed. Held, that the case of the The People v. Gardner (51 Barb., 352), which decides this case in respect to the same party, must be regarded as the law applicable to this case, until reversed or questioned by a higher court.


text:
    William Luckman, Appellant, v. William Tiell, Respondent.

   Order appealed from affirmed, with ten dollars costs and disbursements. Held, that the title to land did not come in question.


text:
    Robert J. Balty and others v. Martin Barton. Melvin G. Barton, Appellant

   Order appealed from affirmed, with ten dollars costs and disbursements.

Talcott, P. J., not sitting.


text:
    John O. Gorman, by Guardian, Respondent, v. Benjamin E. Bushnell, Appellant.

   Order appealed from affirmed, with ten dollars costs and disbursements.

IIardin, J., not voting.


text:
    In the Matter of the Petition of John McDougall, Respondent, for leave to sue John McGreevy, Appellant.

   Order appealed from reversed, with ten dollars costs and disbursements, unless the petitioner stipulates that said order be modified, so as to give the petitioner leave to sue for so' much only of the deficiency as shall remain after deducting therefrom the costs in the two fore closure actions mentioned in the motion papers, and so as to require the petitioner to pay to the appellant the costs of his defense in the action now pending, up to the time of the granting of the order appealed from; in which case the order as so modified is affirmed, with ten' dollars costs and disbursements to the appellant.


text:
    In the Matter of Lyman C. Gardner, an Attorney and Counselor of this Court.

   Application dismissed, and papers ordered to be filed in the office of the clerk of Onondaga county.


text:
    John Vincent, Respondent, v. J. Delos Ingersoll, Appellant.

   Judgment of the County Court and that of the justice reversed. Held, that 'the justice erred in sustaining the objections taken to the question put to the witness, Silliman, in respect to the general reputation of the witness Elmer, for truth and veracity.


text:
    Abigail Glidden, Appellant, v. Alonzo Langdon, Respondent.

   Motion to dismiss appeal granted, with ten dollars costs of opposing. (Code of Civil Procedure, § 1005, and Throop’s note to same, and authorities therein cited.) The recent case of Chapin v. Thompson (23 Hun, 15) is an equity case, and was decided under the last clause of section 1003 of the Code, which relates to equity cases only.


text:
    Thomas A. Bantz, Respondent, v. David L. Vanderheyden and another, Impleaded, etc., Appellants.

   Judgment affirmed with costs, on the opinion delivered by Merwin, J., at Special Term, and leave granted to the appellants to withdraw their demurrers and answer within twenty days, on payment of costs of the demurrers and of the appeal.


text:
    The People of the State of New York, Appellants, v. Ada Lincoln, Respondent.

   Appeal dismissed. See opinion of Talcott, P. J., in People y. Nash, decided at the present term.


text:
    Elizabeth S. Salter, Administratrix, etc., Respondent, v. The Black River and Utica Railroad Company, Appellant.
   Judgment and order affirmed. The testimony on the part of the plaintiff, tending to show negligence on the part of the defendant and freedom from negligence on the part of the deceased, is substantially as it was on the former appeal, when this court held that there was sufficient evidence upon those points to require a submission of the case to the jury. The exception to the instruction that it was for the jury to say whether or not this was a case in which the speed of the train constituted negligence on the part of the defendant, was not well taken. The speed of the train at the time and place of the collision and under the circumstances, was proper for the jury to consider. (45 N. Y., 846; 64 id., 524; 70 id., 119, 124.)


text:
    The Homestead Fire Insurance Company, Appellant, v. John B. Hagerty, Respondent.

   Judgment reversed and new trial ordered, costs to abide event. Held, that the complaint does not allege fraud; the facts and circumstances averred raised an implied assumpsit on the part of the defendant, and the action is on contract, and not for a tort.