text:
    EPHRAIM B. TILLOTSON and EZRA WEBBER, as Overseers of the Poor of the Town of Cazenovia, Respondents, v. JAMES H. MARTIN and HUGH MARTIN, Appellants.

      Proceedings to compel a father to provide for the support of a bastard child — form of the undertaking — by whom the action upon it is to he brought— Oode of Criminal Procedure, secs. 851, 883, 883, 884— Code of Civil Procedure, secs. 1915, 1984.
    One Martin having been adjudged to he the father of a bastard child and ordered to pay to the overseers of the poor of the town of Cazenovia for its support the weekly sum of one dollar and fifty cents, so long as said child shall be chargeable to said town, a bond was duly executed and delivered .by which the said Martin, . as principal, and the defendants, as sureties, bound themselves unto the people of the State of New York in the sum of $500, upon the condition that whereas it had by an order of the Court of Sessions been adjudged that Martin was the reputed father of a bastard child; and it was thereby “ordered that the said Henry '■ Martin shall pay to Ephraim B. Tillotson, one of the overseers of the poor of the town, of Cazenovia, in said county, or his successors in office, the weekly Bum of one dollar and fifty cents each and every week, to he become due and .paid at the expiration of each and every four weeks from this date; now, therefore, if said Henry Martin shall pay the sums for the support of said bastard child as the same is ordered by said justices as aforesaid, or as shall at any time be ordered by the Court of General Sessions of the Peace of said county, and shall fully and amply indemnify the said county and every other county, town or city which may have incurred any expense, or may be put to any expense for the support of said child, against all such expenses, then this obligation to be void, otherwise of force.”
    Upon the trial of this action, brought by the overseers of the poor of the town of Cazenovia, the plaintiffs offered to show that the town had incurred expense in the support of the bastard child and of the mother during her confinement. The proof was excluded under the objection of the defendants.

      JSeld, that an indorsement upon the bond by the justices making the order of the words “the penalty and sureties approved by us” was a sufficient compliance with section 851 of the Code of Criminal Procedure, requiring the party to enter into “an undertaking with sufficient sureties, approved by the magistrates.”
    'That the instrument should be construed as containing a covenant to pay the sum of one dollar and fifty cents per week for the support of the child.
    'That it did not contain any substantial provision in excess of those authorized by the said section of the Code of Criminal Procedure.
    'That under section 882 of the Code of Civil Procedure the action was properly brought in the name of the overseers of the poor of the town which was liable for the support of the bastard.
    'That it was not necessary to prove upon the trial the actual payment by the overseers of the poor of the money sought to be recovered.
    Appeal from the judgment of the County Court of Madison ■county, affirming the judgment of a Justice’s Court for six dollars .and four cents damages and five dollars costs.
    November 24, 1884, E. B. Tillotson, an overseer of the poor of the town of Cazenovia, made a written complaint before G. H. Benjamin, a justice of the peace, requiring the justice to make inquiry into the facts and circumstances touching a bastard child born of Susan Robertson, chargeable to the county of Madison.” On the same day Susan Robertson, in her examination before such justice, made oath that “ she was delivered of a female bastard ■child, and that the said child is liable to be chargeable to the said county of Madison, and that Henry Martin hath gotten her with •child of the said bastard cliildi”
    Thereupon a warrant was issued for. the apprehension of Henry Martin. He was arrested and taken before the said justice and'one Burr "Wendell,'another justice of the peace associated with said Benjamin, and arraigned and “plead guilty to the complaint charged and set out in warrant.” Thereupon the justices made an order wherein and whereby they did “ adjudge him, the said Henry Martin, to be the father of said bastard child, and ordered that he pay to the overseers of the poor of said town, for the support of said child, the weekly sum of one dollar and fifty cents, so long as said child shall be chargeable to said town, and we hereby certify that the reasonable costs of arresting the said Henry Martin and of the order of filiation is the sum of eleven dollars and forty-five cents.” Thereupon an instrument in writing was duly executed and delivered to the said justices, and the penalty and sureties approved by them, as follows: “ Know all men by these presents that we, Henry Martin, as principal, and Hugh Martin, both of the town of Fenner, and James H. Martin, of the town of Cazenovia, in the county of Madison, are held and firmly bound unto the people of the State of New York in the sum of $500, for the payment whereof to said people we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this day of November, 1884.
    “ The condition of this obligation is such that whereas, by an order this day duly made and subscribed by the undersigned justices of the peace, forming a Court of Sessions, it is adjudged that the said Henry Martin is the reputed father of a bastard child, born of the body of Susan Robertson, on the 11th day of March, 1881, and it is hereby ordered that the said Henry Martin shall pay to Ephriam. B. Tillotson, one of the overseers of the poor of the town of Cazenovia, in said county, or his successors in office, the weekly sum of one dollar and fifty cents each and every week, to become due ana be paid at the expiration of each and every four weeks from this-date.
    “Now, therefore, if said Henry Martin shall pay the sums for the support of said bastard child as the same is ordered by said justices as aforesaid, or as shall at any time be ordered by the Court of General Sessions of the Peace of said county and shall fully and amply indemnify the said county, and every other county, town or city, which may have incurred any expense, or may be put to any expense for the support of said child against all such expenses, then this obligation to be void, otherwise of force.
    « HENRY MARTIN. [l. s.] . “JAMES H. MARTIN, [l. s.] “HUGH X MARTIN, [l. s.] mark
    “ Sealed and delivered in) the presence of J
    “ M. Mooohlek.
    “ The penalty and sureties approved by us.
    “ G. H. BENJAMIN,
    “BURR WENDELL,
    “ Justices of the Peace.”

    Upon the instrument there is an indorsement, viz.: “ Received of Henry Martin, on the within, six dollars, December 24, 1884.” Also, “ received of James Martin, on within, six dollars, January 22,1885.”
    This action is brought upon the foregoing instrument. It was shown upon the trial that after the execution of the foregoing instrument, the defendant was discharged and the instrument was delivered to one of the overseers of the poor of the town of Cazenovia. That the child resided in the town of Cazenovia. The plaintiff offered to show that the town of Cazenovia had incurred expense in the support of the bastard child and of the mother during her confinement. Proof was objected to by the defendants and excluded. The defendants raised various questions upon the motion for a nonsuit, among others: “ That the instrument sued on is a bond with penalty, and unauthorized by statute and void. That it should have been an undertaking.” Also, “ that the bond was not taken in pursuance of any statute in force when the bond was taken, and comes clearly within the cases holding that such securities, taken by public officers, if taken under color of office are illegal, contrary to public policy and the spirit of the law, and void.”
    The motion for a nonsuit was denied and the justice rendered a judgment for damages six dollars and four cents, besides costs. It was proven that the plaintiffs were overseers, and were in November, 1884, overseers of the poor of the town of Cazenovia.

      II. D. Messenger and Charles Steihins, for the appellants.

      E. S. Moore, for the respondents.
   Hardin, P. J.:

Section 851 of the Code of Criminal Procedure, provides as follows : If the defendant be adjudged to be the father, he must immediatety pay the amount certified for the costs of the arrest and of the order of filiation, and enter into an undertaking with suffi-cient sureties, approved by the magistrates, to the effect, first, that he will pay weekly, of otherwise, as may have been ordered, the sum directed for the support of the child and of the mother during her ■confinement and recovery, or which may be ordered by the Court of Sessions of the county ; and that he will indemnify the county and town or city where the bastard was or may be born (as the case may be), and every other county, town or city which may have been or may be put to expense for the support of the bastard, or of its mother during her confinement and recovery against those expenses, or that the sureties will do so, not exceeding the sum mentioned in ■the undertaking, and which must be fixed by the magistrates.” * * * In pursuance of this statute the instrument in question was executed and delivered.

¥e think the approval indorsed thereon by the justices, viz., the penalty and sureties approved by us,” may reasonably be construed as a compliance with the section we have quoted in respect to fixing the amount or sum to be mentioned in the undertaking.

"We think the instrument should be construed as containing a ■covenant to pay the sum of one dollar and fifty cents per week for the support of the child, that being the sum directed by the order ■of filiation. In the condition of the instrument it is expressly recited, viz.: “ If the said Henry Martin shall pay the sums for the support of said bastard child as the same is ordered by said justices as aforesaid, or as shall at any time be ordered by the Court of General Sessions of the Peace of said county, and shall fully and amply indemnify the said county and every other county, town or city which may have incurred any expense, or may be put to any expense, for ■ the support of said child, against all such expenses, then this obligation to be void, otherwise of force.”

We think this condition in the instrument must be treated as equivalent to a covenant, and have ‘‘ the same effect for the purpose of maintaining an action or special proceeding, or two or more successive actions or special proceedings thereupon, as if it contained a covenant to pay the sum or perform the act, specified in the condition thereof.” (Code of Civ. Pro., § 1915.)

We think that the section just referred to contains a limitation of the amount which may be recovered on the instrument. It is provided in the section as follows : “ Pat the damages to be recovered for a breach or successive breaches, of the condition, cannot, in the aggregate, exceed the penal sum, except where the condition is for the payment of money; in which case, they cannot exceed the penal sum, with interest thereupon from the time when the defendant made default in the performance of the condition.” We are of the opinion that the instrument' executed by the defendants did not contain any substantial provision in excess of the provision of the instrument authorized by section 851 of the Code of Criminal Procedure.

The case of Cook v. Freudenthal (80 N. Y., 202) is authority for saying, viz.: That mere verbal variations from the statutory form may not make void an agreement or security.” We are of the opinion that there was no substantial departure from the provisions of section 851 of the Code of Criminal Procedure. Toles v. Adee (84 N. Y., 224) approves of the last case cited.

Second. We think section 882 of the Code of Criminal Procedure authorizes an action to be brought in the name of “ the overseers of the poor of the town which was liable for the support of the bastard.” It was not necessary to prove upon the trial the actual payment of money by the overseers of the poor. (Code of Crim. Pro., § 883.) That section provides, also, viz.: “ The neglect to pay a sum ordered to be paid by competent authority for the support of the bastard, or of its mother, is a breach of the undertaking, and the measure of the damages is the sum ordered to be paid, and which was withheld at the time of the commencement of the action, with interest thereon.”

Prior to the adoption of that section it was held that in an action like the one before us, the burden is on the defendant to show himself exonerated from the payment. (Wallsworth v. Mead, 9 Johns., 367 ; Rockfeller v. Donnelly, 8 Cow., 623.) We think whatever money is collected in an action like this “ must be paid to the county treasurer, and by him credited to the town in the same county liable to the support of the bastard.” (Code of Crim. Pro., §§ 881, 884.)

Thwd. If we are right in supposing that section 882 of the Code of Criminal Procedure authorizes the action to be brought upon the instrument in question in the name of the overseers of the poor of the town liable for the support of the bastard, then it follows that the action falls within the exception prescribed in section 1984 of the Code of Civil Procedure. The latter- section contains the following language : An action, brought as prescribed in this title, except an action to recover a penalty or forfeiture, expressly given by law to a particular officer, must be brought in the name of the people of the State.” If the forfeiture'in question or right of action to recover upon the instrument authorized taken by section 851 of the Code of Criminal Procedure may be sued upon by the overseers of the poor of the town in virtue of section 882 of the Code of Criminal Procedure, then the general rule laid down in section 1984 of the Code of Civil Procedure does not apply.

We think there was sufficient proof of a default or forfeiture to the extent of six dollars, shown upon the trial, and that the justice was warranted in rendering a judgment for that sum, and finding that it remained unpaid at the time of the commencement of this action. We are inclined to think 'that the instrument in question may be treated as a part of the proceedings prescribed by the Code of Criminal Procedure in bastardy cases, and that applying the rule prescribed in section 684 of the Code of Criminal Procedure, it may be said that there was not such a departure from the form or mode prescribed by that Code, as tended to prejudice the defendants in respect to a substantial right. Section 684 provides that such departures from the form or mode prescribed shall not render the proceedings invalid unless the departure has “actually prejudiced the defendant or tended to his prejudice with respect to a substantial right.”

We think no error was committed in permitting the proof of the facts conferring jurisdiction upon the justices who made the order of filiation. (Code of Civil Pro., § 532.)

Judgment of the County Court of Madison county affirming tbe justices’ judgment affirmed, witb costs.

BoaRdmaN and Follett, JJ., concurred.

Judgment of the County Court of Madison county affirming a justice’s judgment affirmed, with costs.


source: Caselaw Access Project

author: Hardin, P. J.: Follett, J.:

license: Public Domain

text:
    HENRY R. OSBORN, Respondent, v. EDWARD P. ALEXANDER, Appellant.

      Execution — when the lien attaches from ■the time it is placed in the hands of the sheriff — when a subsequent mortgagee is not deemed a purchaser in good faith — Code of Civil Procedure, sea. 1409 —presumption of fraud a/rising from the property being left with the mortgagor.

    This action was brought to replevy certain articles of personal property sold to the plaintiff, on September 11, 1882, by a sheriff, at a sale under an execution issued upon a judgment recovered on March 25, 1880, against one Alexander. The execution was placed in the hands of the sheriff on July thirteenth, and the levy was made on August 19, 1882. One Beecher claimed title to the property under chattel mortgages given to him by Alexander, the first given in .) uly, 1877, and a new mortgage, covering the same property and to secure the same indebtedness, executed and filed in each following year, the last of such, renewals being given and filed on July 25, 1882.

      Held, that Beecher was not “ a purchaser in good faith,” within the meaning of that term as used in section 1409 of the Code of Civil Procedure, and that the property was bound by the execution from the time it was placed in the hands of the sheriff.
    That the facts were not sufficient to rebut the presumption, arising from the fact that the property was left in the hands of the mortgagor, that it was given to defraud his creditors. (Per Follett, J.)
    Appeal by the defendant from a judgment of the County Court of Oneida county, reversing a judgment of a Justice’s Court.
    The plaintiff brought an action in replevin in a Justice’s Court to recover certain personal property which was taken under the replevin papers. The defendant gave an undertaking and took the property back into his possession. The plaintiff claimed to own the property by virtue of a purchase at a sheriff’s sale on an execution issued upon a judgment recovered by Marshall W. Barker on the 25th day of March, 1880, against Edward P. Alexander.

      Execution on that judgment was placed in the hands of the sheriff of Oneida county on the 13th of July, 1882, and on the 19th of August, 1882, the sheriff levied upon the property and on September 11, 1882, the sheriff sold under the execution the property to the plaintiff in this action, the “sheriff announcing that he sold and conveyed the absolute title to said property,” and “ on said 11th day of September, 1882, after said sale, the said sheriff duly delivered the said property to the plaintiff herein.” On the 11th day of September, 1882; after the said property had been delivered to the plaintiff herein by said sheriff, one Isaac Beecher, who had held several chattel mortgages on the property, “ demanded possession of said property from plaintiff by virtue of said several mortgages, and possession thereof being refused said Beecher thereafter, by James McCabe, his duly authorized agent and attorney, forcibly seized said property from plaintiff and placed the same in the custody of the defendant herein for safe keeping, the said McOabe announcing at said time that he seized the same by virtue of the said several mortgages.” On the 12th day of September, 1882, plaintiff duly demanded possession of said property from defendant Edward P. Alexander, in whose possession the property then was, but defendant refused to deliver the same.
    There was a stipulation made in respect to the facts in the Justices’ Court that the property, in 1877, was owned by defendant Alexander, who resided in the town of Kirkland, and continued in his possession from July 30, 1877, up to the time of sale, September 11, 1882, and was never seized under the mortgage by the mortgagee or his agent until said sale, and during said time was in the custody of no other person, except what might have been the custody of the sheriff by virtue of the execution hereinbefore mentioned. Barker’s judgment was recovered “ for money loaned to the defendant Alexander” about July 1, 1877.
    By the stipulation it further appears that on the 30th day of July, 1877, the said defendant, for and in consideration of the sum of $3,000 duly paid, made, executed and delivered to Isaac Beecher a chattel mortgage upon said property, * * * a true copy of which was duly filed in the county clerk’s office, in the town of Kirkland, on the 31st day of July, 1877. A mortgage upon the same property to secure the same indebtedness was executed and filed in tbe months of June or July in each of the five following years, the last being executed and filed on July 25, 1882.
    The Justices’ Court rendered a judgment in favor of the defendant. Upon an appeal therefrom to the County Court a judgment was rendered in favor of the plaintiff, after a trial before the court without a jury, the County Court holding, as a matter of law, that the plaintiff was the owner of the property and entitled to the possession of the same. From the judgment thus rendered by the County Court the defendant appealed to this court.

      James E. MoGabe, for the appellant.

      W. T. Dunmore, for the respondent.
   Hardin, P. J.:

July 13, 1882, an execution on the Barker judgment was placed in the hands of the sheriff of Oneida county, within whose jurisdiction the property in question remained, and the property from that time was bound by the execution. (Code of Civ. Pro., § 1405.)

Section 1409 of the Code of Civil Procedure provides for exceptional cases, and declares, viz.: “ The title to personal property acquired before the actual levy of an execution by a purchaser in good faith, and without notice that the execution has been issued, -is not affected by an execution delivered, before the purchase was made, to an officer to be executed.”

¥e are of the opinion that the purchaser in good faith and without notice, named in the section from whieh we have just quoted,- is one who has parted with fresh consideration, and that a creditor who takes a security for an antecedent indebtedness, without surrendering anything, is not protected by the exception declared by section 1409 to the rule laid down in section 1405. Beecher, when he took the last chattel mortgage which was executed by the mortgagor, after the execution was in the hands of the sheriff, and filed after the execution was issued, was not a purchaser in good faith so as to come within the protection declared in section 1409 of the Code. ( Williams v. Shelly, 37 N. Y., 375 ; Van Heusen v. Radcliff, 17 id., 580 ; Wood v. Robinson, 22 id., 567; Cary v. White, 52 id., 138 ; Farrington v. Frankfort Bank, 24 Barb., 554; Weaver v. Barden, 49 N. Y., 286 ; Ray v. Birdseye, 5 Denio, 619.)

There was no evidence before the trial court that Beecher had surrendered and delivered up any security or evidence of debt, which he held, from the mortgagor at the time that he received the last mortgage.

¥e are not at liberty to indulge in any presumption that the prior mortgages were satisfied or surrendered at the time of the execution and delivery of the last named mortgage. (Cary v. White, 52 N. Y., 144.) The lien which the sheriff acquired in July, 1882, upon the property in question was enforced by means of the levy in August, thereafter, and a sale had by virtue of the execution which came into the hands of the sheriff, as we have seen, prior to the execution of the last named mortgáge. Confessedly the last named mortgage was executed, delivered and filed after the lien of the execution attached to the property on the thirteenth of July, inasmuch as the mortgage was not executed until the twenty-fifth day, and filed on the 25th day of July, 1882.

This case,' therefore, differs from Lee v. Huntoon and another (1 Hoff. Ch., 447). By reference to the opinion in that case it appears, viz.: That the first mortgage was given on thellth of October, 1837, and duly filed; the second on the 4th of October, 1838, and then filed. The judgment was recovered on the 4th of May, 1838, and execution issued on the 4th of November, 1838.

After discussing the provisions of the third section o.f the act of 1833, the assistant vice-chancellor remarks, viz.: “ Instead, however, of filing, such a copy and statement, the mortgagee in this case procures a new mortgage which he files. In this he ran the risk of an execution being put into the hands of the sheriff, after the first mortgage had become void by the expiration of the year, and before this new one was filed. But although the original mortgage ceases to be in operation in consequence of the omission, I do not see how the subsequent one, if otherwise valid, can be affected. Instead of the copy and statement coming from the mortgagee, there is a new instrument expressing the amount coming from the mortgagor, or from both parties. * * * Now, I consider that the statute has this meaning, and no other; that if the mortgagee would keep his security in force and retain priority as of its original date, he must file the copy and statement as prescribed. This is in his power where the mortgagor will not or cannot give a new mortgage. But I cannot understand the act as prohibiting a fresh mortgage to take •effect from its date or filing, although the consideration and the property should be the same.”

The doctrine in that case met with approval of the Court of Appeals in Walker v. Henry (85 N. Y., 134), where Judge Miller says, viz.: “ The giving of a new mortgage, instead of refiling and renewing the same, did not affect the lien of the mortgagee, or render it invalid except that the. mortgagee ran the risk of a levy upon an execution after the first mortgage ceased to be a lien and before a new one was filed. (Lee v. Huntoon, 1 Hoff. Ch., 447.) The second mortgage did not extinguish the debt. (Gregory v. Thomas, 20 Wend., 17; Hill v. Beebe, 3 Kern., 556.) It was clearly valid except as against a levy upon an execution issued upon a judgment or a lien by virtue of such execution.”

In the case last quoted from it -was held that after the return day of the execution without a levy, all claim to a lien is lost, and therefore a receiver who sought to make title against an intervening mortgagee under virtue of the lien acquired by an execution which had been placed in the hands of the sheriff failed, as the execution had been returned without a levy before the action was instituted by the receiver. That case differs from the one before us because here the levy was made in the lifetime of the execution, and a sale had in pursuance of the levy.

Appellant calls our attention to Swift v. Hart (12 Barb., 530), which we think does not support his contention. Welles, P. J., who delivered the prevailing opinion in that case, after alluding to the statute in respect to chattel mortgages, and the provision therein declaring that a mortgage shall cease to be a lien after one year, unless a copy and a statement of the amount due shall be made by the creditor or mortgagee, adds, viz.: “ And although, from the •expiration of the year it becomes dormant and invalid as against creditors and purchasers, yet upon filing it again it becomes revived and valid as against such creditors and purchasers, whose liens had not attached during the interval, on the same principle that an execution against personal property, which has become dormant by reason of the plaintiff’s having directed proceedings to be stayed, may be afterwards revived and receive vitality by being set in motion by the plaintiff, so as to be effectual as against subsequent executions,” and adds, viz.: “ Upon the whole, I am of the opinion that the second filing of the mortgage in this case may be regarded in the light of an original filing at that time.” In that case it appeared that the second filing was on the 1st of February, 1848, and the execution was not received by the sheriff until the 7th day of April, 1848.

In Newell v. Warner (44 Barb., 258), Judge JoHNSON, who dissented in Swift v. Hart, delivered the opinion of the court and acquiesced in the doctrine laid down by Welles, P. J., and his opinion in Newell v. Warner is to the following effect, viz.: “ Where a mortgage is sought to be kept on foot through a number of years, there must be successive filings annually of the copies and statements or the mortgage will cease to be valid as against creditors, and subsequent mortgagees and purchasers in good faith of the-mortgagor.” The statement of the interest of the mortgagee in the property claimed by him by virtue of the mortgage, which is required by the statute to be indorsed upon or accompany the copy of the mortgage filed, must be made by the mortgagee in person or by attorney.

A mere statement of the amount due to the mortgagee, made by the mortgagor or any third person, without any authority from the mortgagee, will not answer the requirement of the statute. The indorsing a certificate or acknowledgment of the amount due upon a copy of the mortgage filed by the mortgagor, is not the execution of a new mortgage for the debt in any just or reasonable sense.

We do not understand Smith v. Cooper (22 Hun, 11) to lay down any rule inconsistent with Newell v. Warner. Barnard, P. J., says that the paper signed by the mortgagor had the effect of creating a new mortgage. In that case it appears, viz.: The sheriff levied upon the property in question after this re-executed mortgage was filed in March, 1879.”

In Nixon v. Stanly (33 Hun, 248) it appears from the opinion of BarKer, J., that the refiling of the mortgage, with the proper certificate indorsed thereon, was “ prior to the receipt of the execution by the sheriff,” and that case, therefore, is consistent with the others to which we have referred.

The same principle is laid down by Folger, J., in Marsden v. Cornell (62 N. Y., 219), where he says, viz.: “ So, the second year,. it must be accompanied with a statement of just the amount still unpaid, so that it may appear what has been paid, if anything, or whether the debt has increased by the interest upon it. It is a fraud (or at least a badge of fraud) if this be not stated truly. (Ely v. Carnley, 19 N. Y., 496.) It is a violation of the statute if it be not stated at all, which is not cured by the reiteration of the origiual statement of amount, by a refiling of barely the original mortgage.”

Beecher’s misfortune comes upon him because lie did not follow in the course pointed out by the statute. That provided for á continuation of his lien, if he, within thirty days next preceding the expiration of his mortgage, should file a statement with the clerk indicating the amount remaining due upon his mortgage. "Where the statute provides one mode for protecting a party, or his rights, under it, that mode must be pursued, in order to avail of the protective provision of the statute. (Dudley v. Mayhew 3 N. Y., 1.) Instead thereof, he pursued a course not provided for by the terms of the statute. He exposed himself to the risk of an intervening lien. That lien was followed by a levy and sale, and the purchaser at the sheriff’s sale stands in the shoes of the judgment creditor. The purchaser at the sheriff’s sale acquires the rights of the judgment creditor in the premises, and it is no answer to the rights of the purchaser at the sheriff’s sale to show that the judgment creditor, or his assignee holding the judgment, had knowledge on the 25th of February, 1881, “ of the said several mortgages of the said Isaac Beecher.” (Best v. Staple, 61 N.Y., 71; opinion of Earl, C., at p. 19.)

Having reached the conclusion that the plaintiff acquired good title to the property in question, and that the defendant, as the agent of the mortgagee, was not entitled to withhold the same from the plaintiff’s possession, we are of the opinion that the judment of the court below is correct.

Judgment of the County Court of Oneida county affirmed, with costs.

BoakdMan, J., concurred; Follett, J., concurred in the result.

Follett, J.:

A mortgage upon chattels which are left in possession of the mortgagor is presumed to be fraudulent as against an execution creditor. (2 R. S., 136, § 5.) As against such a creditor a person claiming title under such a mortgage must rebut the presumption .of fraud by showing that the mortgage was made in good faith, without any intent to defraud the creditors of, or purchasers from, .the mortgagor. (2 R. S., 136, § 5 ; Smith v. Acker, 23 Wend., 653; Groat v. Rees, 20 Barb., 26; Miller v. Lockwood, 32 N. Y., 293, 298; Frost v. Mott, 34 id., 253.) The facts of this case were agreed upon, and no facts are stated tending to rebut the statutory presumption. Six successive mortgages were given, each to secure .$3,000, payable one year after its date with interest, on chattels worth less than $1,000, which were left in possession of the mortgagor. But sixty-five dollars has been paid on the alleged indebtedness. The case does not show that the mortgagor was originally or at any time justly indebted to the mortgagee in the sum of $3,000. The recitals of indebtedness in the mortgages are not •evidence of the fact as between the execution creditor and the •defendant. Even though the recited consideration existed, if the ■mortgages were kept on foot to protect the property from the mortgagor’s creditors, and not for the security of the mortgagee, they are void as against the execution creditor. (Billings v. Sawyer, 3 Eastern R., 850; reversing S. C., sub nom. Billings v. Billings, 31 Hun, 65.) The mortgagee is the uncle of the mortgagor. There is no finding on the question of good faith. Under such a state ■of facts the statutory presumption is not rebutted, but is confirmed.

The judgment should be affirmed, with costs.

Judgment of the County Court of Oneida county reversing a Justice’s Court judgment affirmed, with costs.


author:
Boardman, J.:
      Hardin, P. J.

text:
    GEORGE W. CLARK, Respondent, v. MARCUS D. SNYDER, Appellant.

      Pi'actice — a/ppeal from a Justice’s Court — upon whom the notice of appeal must • , he served.

    •On June sixteenth the plaintiff recovered a judgment in a Justice’s Court. On June twenty-ninth he died intestate, leaving a wife and children him surviving. No administrators were appointed. On July third a notice of appeal was duly served on the justice, and the costs and fees were paid to him, and on the same day the notice was served on the widow, the county clerk and the attorney who appeared for the plaintiff on the trial in the Justices’ Court.

      Held, that the appeal was properly dismissed for the reason that the notices of appeal were not legally served upon any person authorized by law to he so served, and that no appeal is provided for in such a case. (Hardin, P. J., dissenting.)
    Appeal from an order of tbe Chemung County Court, dismissing' an appeal taken from a judgment of a Justice’s Court.

      Daily db Bentley, for the appellant.

      Jno. T. Davidson, for the respondent.
   Boardman, J.:

Judgment for the plaintiff was rendered in Justices’ Court on the 16th of June, 1885. On the 29th of June the plaintiff died intestate, leaving a wife and children surviving him. No administrators have been appointed. On the third day of July a notice of appeal was duly served on the justice and costs and fees paid him. On the same day the notice of appeal .was served on the widow, the county clerk and the attorney who appeared for the plaintiff on the trial in the Justices’ Court.

The appeal, on motion of the parties so served, was dismissed because said notices of appeal were not legally served upon any person authorized by law to be so served, and that no appeal is provided for in such a case.

After a considerable search outside of the points of the parties for an authority to recognize such an appeal, we have been unable to find any and have finally concurred in the opinion of the learned county judge, that the appeal was not taken in pursuance of any authority of law, and was therefore properly dismissed.

The costs on a motion to dismiss such an appeal are properly awarded under section 3236 of the Code. Section 3066 provides for no costs on dismissing an appeal, because it is not brought to a hearing by either party. The uniform practice in this court has recognized the right to award ten dollars costs under section 3236 (supra), on dismissing an appeal for irregularity or want of jurisdiction.

The order of the County Court must be affirmed, with ten dollars costs and printing disbursements.

Eollett, J., concurred.

Hardin, P. J.

(dissenting):

It seems to me the defendant ought not to be deprived of the right to review the plaintiff’s judgment by the death of the plaintiff. The time was too short after the death of plaintiff, before the expiration of the time to appeal, to enable the defendant to procure the appointment of an administrator. In good faith a notice of appeal was served upon the justice, and the .defendant ought to be allowed any relief needed to perfect his appeal. (Code of Civ. Pro., § 3049 ; Gutbrecht v. P. P. and C., I. R. R. Co., 28 Hun, 497.)

Until the persons who made the motion in the County Court are made parties to this action, they have no standing in this court from which to move the court.

My own impression is that the order of the County Court should be reversed, with ten dollars costs and disbursements.

Order of County Court of Chemung county affirmed, with ten dollars costs and disbursements.


author: Boardman, J.:

text:
    MARY FITZGERALD, Administratrix, etc., of PATRICK FITZGERALD, Deceased, Respondent, v. THE CITY OF BINGHAMTON, Appellant.

      Negligence — liability of the city of Binghamton for damages sustained by one inyv/red by reason of the defective condition of a public street.

    This action "was brought to recover damages occasioned by the death of the plaintiff’s intestate, which was caused by his falling from an embankment along which ran one of the defendant’s streets. The evidence tended to show that the deceased, while passing along the street upon a dark and rainy night, stumbled over some defect, where the side of the street had been gullied out by rains, and fell, some thirteen feet, upon a culvert; that he was stunned and rendered unconscious, and rolled into a pool of water where he was drowned.
    The defendant sought to defend the action upon the ground that the negligence, if any, was that of the common council and mayor, who were by the charter made commissioners of highways for said city, and that the charter exempted the defendant from liability for the negligence of any officer or officers, agent, servant or employee who might he elected, appointed or employed pursuant to its charter. The charter authorized an action to be brought against the officer guilty of negligence only, in case of “willful or gross neglect or intentional violation of duty,” which was not claimed to exist.

      Held, that as the plaintiff could have no remedy unless the defendant was held liable he was entitled to maintain this action.

      Fitzpatrick v. Slocum (89 ST. Y., 358); Hardy v. Oity of BrooUyn (90 id., 435), and Vincent y. Oity of Brooklyn (31 Hun, 122), followed.
    Appeal from a judgment in favor of the plaintiff, entered in Broome county upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions.
    The action was brought to recover damages arising from the death of the plaintiff’s intestate, who was killed while passing along one of the defendant’s streets on a dark and rainy night. Evidence was given tending to show that the street in question, Robinson street, is for some distance embanked higher than the adjacent lots, and is carried across a shallow depression, “ flats ” or ravine, by a stone culvert. The plaintiff’s intestate, on the evening of the 16th of October, 1884, was seen returning home along Robinson street, on the raised portion 'of it above described, and going east on the south side of the street; he had traveled over this place repeatedly for years and was thoroughly acquainted with it. On the morning of the next day he was found dead, face down in the creek, on the south side of the culvert. The defendant moved for a nonsuit at the close of the plaintiff’s evidence, and again at the close of all the evidence, upon the grounds, among others, that under the defendant’s charter (chap. 291 of 1867) it was expressly exempted from liability for any negligence, misfeasance or nonfeasance of its common council or its officers, and if any negligence could be imputed in omitting to put up barriers on either side of Robinson street, where it crossed over the culvert, that was the negligence of the common council and mayor, who were by the charter made commissioners of highways, and liable for any negligence as such. That the Robinson street road-bed was shown to have been in perfect order, and in accordance with the plan upon which it was built and graded at this point; that the city authorities acted judicially in determining and carrying out this plan, and any default, if any were shown, in maintaining the street according to that plan, was the negligence of its officers; that the evidence did not show that the plaintiff was not guilty of negligence, there being no proof from which it could be inferred either way. The motion was denied, and upon a verdict being rendered for the plaintiff, the defendant moved for a new trial, which was denied.

      Samuel Hand, for the appellant.

      Edmund O' Connor, for the respondent.
   Boardman, J.:

Plaintiff’s intestate was hilled by falling from an embankment on which was one of the defendant’s streets. The Dight was dark and rainy and there was not sufficient light to enable a person passing along the side of this street do discover its imperfections. The-evidence tends to establish that the deceased, while passing along this street, stumbled over some defect where the side of the street had been gullied out by rains and fell some thirteen feet upon a culvert, by which' he was stunned and rendered unconscious, and rolled from thence into a pool of water, where he was drowned. There were no sidewalks at these points nor guard railings. From the judgment in favor of the plaintiff, and from the order denying-a new trial upon a case made, the defendant appeals to this court. Three grounds for the reversal of such judgment and order are presented for our consideration :

First. If negligence, was established upon the ,trial it was the negligence of the common council and mayor, who were, by the charter, in effect, commissioners of highways for said city, and by its charter the defendant is exempted from liability caused by their negligence in the care of this street.

Second. The plan of this embankment was quasi judicial and for an error therein the defendant is not responsible.

Third. There is no evidence to show that the deceased-was free from negligence which contributed to his death.

We will discuss these questions in the order stated. There was enough evidence of negligence in the care of the street, its condition and want of repair, the absence of railings and the deficiency of artificial light to i-equire its submission to the jury. This is not seriously controverted by the appellant. By its charter the defendant is exempted from any liability to any person for the negligence of any officer or officers, agent, servant or employee who may be elected, appointed or employed pursuant to its charter.

By the charter of the city of Brooklyn (Laws of 1862, chap. 63, § 39) the said city shall not be liable in damages for any nonfeasance or misfeasance of the common council, or any officer of the city or appointee of the common council, of any duty imposed upon them or any or either of them by the charter or of any other duty enjoined upon them as officers of the government under the charter. In each charter provision is made for enforcing the performance of any duty by negligent officers by mandamus. By the Brooklyn charter an action for an injury may be maintained against such officers, while by the defendant’s charter such an action can only be brought against them in case of “ willful or gross neglect or intentional violation of duty,” of which there is no claim in this case. This plaintiff can, therefore, have no remedy unless against defendant.

Ve think the cases of Fitzpatrick v. Slocum (89 N. Y., 358); Hardy v. City of Brooklyn (90 id., 435), and Vincent v. City of Brooklyn (31 Hun, 122), are in point and must control our decision in this case. The two charters are substantially alike in their features for exemption from liability. ' The learned judge, in Fitzpatrick’s case (p. 365), says : “ There must be a remedy in such a case where one i-s injured without fault of his own, by a defect in one of the streets or bridges of the city, either against the city or some of its officers.”

In this case, as has been said, there has been no such willful or gross neglect or intentional violation of duty ” as will create any liability against any officer of the city. The liability of the common-council and mayor, acting as commissioners of highways, by the language used, is restricted and taken away in this case, if such liability could ever exist. We think the remedy has been properly pursued against the defendant.

It is not the plan, upon which this street was constructed that was alone, if at all, in fault. The neglect to keep the same in repair,, the absence of guard rails or sidewalks, the insufficient lights, constituted evidence from which the jury has properly inferred negligence. In these respects the case is distinguished from Urquhart v. City of Ogdensburg (91 N. Y., 67) and other similar cases. Indeed, its features more nearly resemble the eases of Fitzpatrick v. Slocum and Hardy v. City of Brooklyn (supra), where it was held that an action would lie.

The evidence ■ of absence of contributory negligence is much stronger than in Hart v. Hudson River Bridge Company (80 N. Y., 622), or Jones, Administratrux, v. New York Central and Hudson River Railroad Company (28 Hun, 364 ; affirmed, without opinion, in 92 N. Y., 628); see, also, the opinion of the learned chief judge in Stackus v. New York Central and Hudson River Railroad Company (79 N. Y., 464). As is there said: Mere precedents are of little value. No two cases are alike in all their circumstances.”

Other cases might be cited, which, by their resemblance to the present one, would appear to justify the taking of this case from the jury. But upon the whole evidence we think that the deceased has not been shown to have been guilty of any want of care, prudence or caution in traveling over the street which should prevent a recovery. His intoxication, if there is any evidence of it, is at most a circumstance for the consideration of the jur), in connection with the other facts in the case.

We think the judgment and order should be affirmed, with costs.

Hardin, P. J., and Follett, J., concurred.

Judgment and order affirmed, with costs.


text:
    HANNAH ALTHOUSE, Respondent, v. WALLACE W. WELLS, Appellant.

      Slander — when a aommunioaiion made to an attorney of an estate, by one interested, therein, is not privileged under section 885 of the Oode of Oivil Procedure.

    This action was brought by the plaintifE to recover damages for slanderous words uttered by the defendant to an attorney-at-law, who was acting as an agent and attorney for the executor of an estate in which the defendant was interested, The alleged slander consisted in charging the plaintifE with having stolen eighty dollars in gold belonging to the estate, and requesting the attorney to collect it. Upon the trial the defendant objected to the attorney testifying as to what the defendant said to him, upon the ground that, as the defendant was interested in the estate his statement and request were privileged as a confidential communication made to his attorney.

      Held, that the objection was untenable, as the relation of attorney and client did not exist between the defendant and the attorney for the estate.
    That even if the defendant’s interest in t'he estate rendered the communication a privileged one, if found to have been made in good faith, yet that did not affect the admissibility of the evidence.

      Appeal from a judgment in favor of tbe plaintiff, entered at tbe Oswego Circuit upon tbe verdict of a jury

      Mead <& Strcmahan, for tbe appellant.

      S. JV. Dada, for tbe respondent.
   Boardman, J.:

Tbis is an action for slander in charging tbe plaintiff witb being a tbief. Tbe charge was made to an attorney-at-law, who was acting as an agent and attorney for the executor of an estate. Tbe defendant, as legatee or devisee, had an interest in such estate. He said to Nichols, the attorney, that tbe plaintiff bad stolen eighty dollars in gold belonging to tbe estate, and that be wished him, as attorney of tbe executor, to collect it. Tbis accusation against tbe plaintiff was made by tbe defendant under similar circumstances on three different occasions. Tbe answer is, first, a general denial; second, a denial of knowledge or information as to bis speaking tbe words; third, an allegation on information and belief, that plaintiff took and converted to her own use eighty dollars, tbe property of Peter Altbouse, and on information and belief that plaintiff thereby became and was a tbief. Also specially denies, that be spoke tbe words maliciously or witb intent to injure plaintiff.

On tbe trial Nichols was called to prove tbe speaking of tbe words. Tbe evidence was objected to upon the ground that tbe witness was acting as tbe attorney for the executor of Peter Alt-bouse, in whose estate tbe defendant bad a half interest; that such statement was made to him as such attorney, and that it was a confidential communication. The objection was overruled and an exception taken. This objection and exception is alone urged by appellant.

Tbe facts do not bring tbe case within the provision of section 835 of tbe Code, prohibiting tbe disclosure of a communication made by a client to an attorney in tbe course of bis professional employment. Tbe relation of attorney and client did not exist between defendant and Nichols. It was not, therefore, a privileged communication within that section.

Tbe defendant, however, insists, even in that event, that the communication was confidential and entitled to protection, because tbe defendant, in a matter of personal interest to himself, had the right to urge action by the executor or .his agent, and make the statement to such agent. This would be what is styled a conditionally privileged communication, and a cause of action founded upon it, if it is found to have been made in good faith, .in the belief of its truth, and without malice, will fail. Such is the defendant’s position. (Towns, on Slander, §§ 209, 241.)

But this position will not support the exception. It does not go to the admissibillity of the evidence. The evidence was competent-Whether the plaintiff was bound to prove express malice in addition, was another matter which would necessarily come up later. The exception was not, therefore, well taken.

Nor can the defendant take the position upon this appeal that no express malice was afterwards shown, if necessary, to justify the verdict rendered. The evidence is not all returned, and it may be that such evidence was in fact given. There is still another reason. This objection was not taken upon the trial. If a party desires to. take advantage of any defect of proof which could have been supplied, he must move for a nonsuit or a dismissal of the complaint for such defect upon the trial, or he will be debarred from raising the question upon appeal. (Binsse v. Wood, 37 N. Y., 526, and cases cited in 3 Wait’s Pr., 161, and 4 Id., 230, 231.)

It is not intended to express any opinion as to the necessity of proof by plaintiff of express malice, in order to sustain her action. That question is not before us by any ruling or exception, and hence we decline to pass upon it.

The case presents no valid ground for a reversal. The judgment, must be affirmed, with costs.

HajsdiN, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


text:
    JOHN S. MARSH, Respondent, v. WALTER M. HAND and GEORGE F. HAND, Appellants, Impleaded with BUELL CUMBER.

      Negligence — liability of the oioner of animals for injuries done by them to persons, while trespassing on their lands — liability of a joint owner, not in possession, of the animal.

    The plaintiff brought this action to recover damages for injuries sustained by his being butted by a vicious ram, which had trespassed upon his premises from lands owned by the defendants Hand, but occupied by the defendant Cumber under a contract which left the Hands the owners of the sheep remaining on the place when it was leased to Cumber, and required him to leave the same upon the place on leaving it, or to pay cash therefor.
    The ram which butted the plaintiff was not one of those left on the place by the Hands, but was received by Cumber in exchange for a ram left there by the Hands, and was placed there by Cumber without their knowledge or consent.

      Held, that as the Hands were not the owners or possessors of the ram, they were not responsible for the injuries done by him through Cumber’s negligence.
    That even if it could be held that they were tenants in common of the ram, they could not be held responsible for the negligence of Cumber, who was the sole possessor and had the right to such possession until the end of his year.
    Appeal from a judgment in favor of tbe plaintiff, entered at tbe Broome Circuit upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon a case and exception.
    Tbe plaintiff, in April, 1884, resided in tbe town of Binghamton, npon a farm adjoining premises occupied by tbe defendant Cumber, wbicb last mentioned premises were owned by one Stephen D. Hand at tbe time of bis death, and were occupied by said Cumber, under an agreement with tbe defendants Walter M. Hand and George E. Hand, as executors of tbe last will and' testament of said Stephen D. Hand. The defendant Cumber took possession of the premises April 3, 1882, and continued in possession under extensions of tbe same contract up to tbe time of tbe trial. Tbe defendants Hand left a quantity of stock on the farm at tbe time that Cumber took possession ; and some months after, and in November, 1882, Cumber exchanged tbe ram upon tbe place for another, which exchange was made without tbe knowledge of tbe Hands, nor did they ever know of such exchange, or that the ram was on tbe place, until after tbe injuries 'complained of by tbe plaintiff.

      April 1, 1884, this ram Avent upon the premises of plaintiff, and while upon his premises butted plaintiff and inflicted injuries upon him, and this action was brought to recover for the injuries so received.
    It is conceded, for the purposes of this appeal, that the defendant Cumber knew the ram in question to be vicious, and that the other defendants did not know it.

      Wales, Hand & Fish, for the appellants.

      Edmund O'Connor, for the respondent.
   Boardman, J.:

The plaintiff recovered for injuries inflicted upon him by a vicious ram, which had trespassed upon his premises from lands owned by defendants Hand, but occupied by defendant Cumber under a peculiar contract. It is conceded that Cumber knew the ram was vicious and that the defendants >vho appeal, the Hands, had no such knowledge prior to plaintiff’s injury, unless Cumber’s knowledge is to be imputed to them. ¥e will refer to the contract set out in the case for the language used, without repeating the same here.

The learned justice at Special Term holds, that the Hands, by virtue of the contract, remain the owners of the sheep left on the place when Cumber took it — that it was not a sale of the sheep to Cumber. We are inclined to accept that as a just conclusion, though there are features in the contract leading to a different result, notably where it provides that Cumber ^ shall leave upon the farm as large a. quantity of hay and stock, and as good as he found on taking possession, or pay the Hands the cash value of the same.” This language indicates an absolute right of disposition of the stock and but for other clauses of the confract A\re should so hold. However that may be, Cumber exchanged the ram left on the place by the Hands, without their knowledge and consent, for the vicious ram which did the injury. So far as appears the Hands never knew of such exchange prior to plaintiff’s injury.

If the title to the sheep remained in the Hands after Cumber went into the possession of the farm, it has not been divested by Cumber’s act in making the exchange. The contract does not give Cumber any right to sell or convert the property of the Hands and they have never authorized or ratified Cumber’s act. Cumber may be liable under the final clause of the contract above quoted for the value of the ram disposed of, unless be substitutes tberefor something of equal value, which the Hands choose to accept as equally good. Until the end of the contract and such acceptance the vicious ram so acquired remained the property of Cumber. lie kept it on the farm in and for the joint benefit and interest of the defendants. It was there for use, and though owned by Cumber, the defendants without knowing it had an interest in it and in its being kept there. It was not kept on the farm at the expense of the farm for the benefit of Cumber or others, but for their joint benefit. If this view of the case be correct, the defendants Hand were not the owners or possessors of this vicious ram and were not responsible for injuries done by him through Cumber’s negligence.

If it could be held that the defendants were tenants in common of the vicious ram, it seems to us that the Hands could not be hef& responsible for the negligence of Cumber who was in the sfife possession, and had the right to such possession until the end of fts year. (Bowman v. Travis, 54 N. Y., 640.)

The cases cited by the learned judge in his opinion denyin^f% new trial do not seem to sustain his views in their application to the facts in this case. The case of Ward v. Warren (82 N. Y., 265), holds that the knowledge of one tenant in common in the occupation of land, of the use of an easement over it, is knowledge in and will bind all his co-tenants. In Leggett v. Hyde (58 N. Y., 272), on the facts one was held to be a partner and liable for co-partnership debts. In Roberts v. Johnson (58 N. Y., 613), the employer was held liable for the negligence of his employee, a stage driver, whereby a passenger was injured. In Stroher v. Elting (97 N. Y., 102), the parties had a contract relation making in the process of its execution each the agent of the other, and each liable for the negligence of the other while engaged in the common enterprise. In Champion v. Bostwick (18 Wend., 175), the defendants were held to be co-partners and liable as such for negligent injury. Except the first case, which does not apply to a cause of action arising out of negligence, none of them lays down any rule of law about tenants in common.

It is not possible to hold that the defendants were partners in the ownership of the original sheep or the vicious one. It was not so held in the court below. Nor can we see how there could be an agency to do a wrong or, by negligence of the agent, permit a wrong to be done for wliicb bis principal should be bound, where the agent was not at the time engaged in the prosecution of his principal’s business. Undoubtedly the act of an agent within the scope of his authority, and while engaged in his principal’s business, would bind the principal and make him liable for results. (Rounds v. Del., Lack, and West. R. R. Co., 64 N. Y., 129.) But in no such sense was Cumber the agent of the Hands. He had, during the existence of the contract, the absolute control and possession of the stock. The Hands could not deprive him of it. They had no power to avoid the contract or disturb Cumber’s possession. How could he then be deemed their agent, or why should they be liable for his negligence or wrong ? How are his acts to be deemed jfhe acts of the Hands to the extent of making them liable for his £jpong, or imputing to them his knowledge so as to make them liable ijgr the wrong ? (Van Slyck v. Snell, 6 Lans., 299 ; King v. N. Y. and H. R. R. R. Co., 66 N. Y., 181.) For these reasons we think the Hands were not liable to the plaintiff for the injury he ^suffered.

I do not find in the ease any evidence that the sheep were wrongfully upon the plaintiff’s farm by reason of any negligence of the defendants or either of them. Unless the sheep were unlawfully there a recovery cannot be sustained against the defendants Hand without proof of a scienter. (Van Leuven v. Lyke, 1 Comst., 515; Moak Underbill on Torts, 303.) "We do not think that any such evidence has been given or that the Hands are made liable by reason of any knowledge possessed by Cumber. Little importance, however, is attached to this feature of the case, since it seems to have been assumed during the trial that the sheep were trespassing on plaintiff’s farm at the time of the injury, and no such specific objection was taken to the recovery. The right of Cumber to make the exchange of rams is denied by the second ground taken on the motion for nonsuit.

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

HaediN, P. J., and Follett, J., concurred.

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


author: Kennedy, J. :

text:
    WILLIAM H. WRIGHT, Appellant, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Respondent.

      ■Contract for the transportation of coal — when it does not make the parties liable as partners— what defects in the brake of a coal car do not render it dangerous to life— when the risk attendant upon his employment is assumed by an employee.

    The plaintiff, a hrakeman in the employ of the New York and Oswego Midland Railroad Company, brought this action to recover damages for injuries sustained by his being thrown from a train of cars through the breaking of a brake-bar which he was endeavoring to apply. The car upon which the plaintiff was working at the time of the accident was operated and run by the defendant, and had been delivered, with thirteen others, to the New York and Oswego Company under an agreement by which the latter undertook and agreed to transport over its road and branches the coal of the defendant at a stipulated price per ton per mile, and upon the further consideration of receiving a certain portion of the net proceeds of the coal.

      Held, that the agreement did not make the two roads liable as partners, but that the New York and Oswego road was simply employed by the defendant to transport its coal, and that as there was no privity of contract between the ■ plaintiff and the defendant the latter owed him no duty and was not liable for the injury he had sustained.
    It was claimed by the plaintiff that the brake on the car was defective in its con-' struction. The car was an open box car called a gondola, constructed solely for freighting coal; the defect in tne brake was that the hole in the wheel was made flanging, or larger at the bottom than at the top, and that the rod passing through the same did not closely fit the hole, and that the rod was only five-eighths of an inch in diameter when it should have been at least eleven-sixteenths. It appeared that brakes constructed like the one in question were in frequent use, and that the plaintiff had used them and knew the manner in ■which they were made.

      Held, that the action could not be sustained upon the ground that the car furnished by the defendant was improperly constructed, without due regard to safety in its use, and was imminently dangerous to human life.
    That, as between the plaintiff and his employer, the former must be presumed to have assumed the risk attendant upon the use of the brake.
    Appeal from an order denying a motion for a new trial, and; from a judgment of nonsuit ordered at the Madison Circuit.

      Mason db Wellington and O. W. Underhill, for the appellant.

      ■Smith, Moak & Buchanan, for the respondent. ‘
   Kennedy, J. :

Action to recover damages received by tbe plaintiff, charged to be occasioned by the negligence of the defendant.

The plaintiff on the 18th day of March, 1872, was engaged in the employ of the New York and Oswego Midland Railroad Company as brakeman, and had been in its employ in that capacity for three months prior to that date. His exact position was brakeman on a coal train, which ran over said railroad between Sidney Plains and the city of Oswego. He had been engaged in a similiar business upon other railroads since 1866, and was familiar with its nature, character and risks.

On the 18th day of March, 1872, and when a train composed of fourteen cars loaded with coal was about entering Earville, the plaintiff was called by whistle to apply brakes, and in doing this the brakebar broke, threw him under the ears, his leg was run over, and from the injury amputation became necessary, and the leg was so amputated below the knee.

Twelve of the fourteen ears were ears of the Albany and Susquehanna Railroad Company, which road was at the time being run and operated by the defendant, and the accident occurred upon one of these. These cars were new, and it is claimed by the plaintiff that the rod of the brake was improperly constructed, in that where it passed through the wheel it did not fit the hole, and the bar itself below the wheel was not of requisite size to bear the strain when the brake was applied. The defect, if any, was in the construction of the appliance.

' On the 15th day of January, 1872, the defendant entered into a contract with the New York and Oswego Midland Railroad Company, by which, upon certain terms and conditions therein-stated, it agreed to deliver to the said Midland company, at Sidney Plains, and said company undertook and agreed to transport over its road and branches, the coal of the defendant. The cars used in said business to be furnished and pi-ovided by both companies in the proportion and manner provided in said agreement, and said railroad company was to be paid by the defendant (the canal company) one cent per ton per mile for each and every ton so transported by the former company, and in addition the canal company was to pay to the railroad company a sum equal to the proportion of the profits arising from the sale of the coal, to be-ascertained as in said agreement provided. It was further agreed that the canal company should have the exclusive right, title, possession, direction and control of all the coal transported under the contract, and of the sale and disposition thereof. And it was especially stipulated that the net proceeds of said coal was to be ascertained merely for the purpose and as a means of' fixing the additional compensation to be paid to said railroad company over and beyond the one cent per ton per mile.

The car upon which the accident occurred was one that was loaded by the defendant and delivered to the Midland road at Sidney Plains for transportation over its road, in ¡pursuance of this agreement, and at the time of such accident was being run by it over its road under the care and management of its agents and employees, one of whom was the plaintiff.

Prom the contract aforesaid it is quite apparent that the parties thereto were not partners within any definition which the term lias-received, but instead the Midland railroad was simply an employee of the defendant for the transportation of its coal, for a consideration to be paid therefor ; the reference in said agreement to profit being for no other purpose than as a means or manner of ascertaining, the amount to be paid the railroad over and beyond the one cent per ton per mile for the coal so to be transported by it. The terms used in reference to this excludes the idea of a partnership or joint interest. The language of the contract is: “ And in addition, and as a further-compensation, the canal- company shall and will pay the railroad company such sum as shall be equal to the proportion of the net profits arising from the sale of coal so transported as aforesaid.”

The Midland road was not interested in and did not receive a part of the profits as profits. Indeed, it received no part of them in any manner, and the case is not, therefore, within the principle of Leggett v. Hyde (58 N. Y., 272), or Manhattan Brass Company, v. Sears (45 id., 797), or Stroher v. Elting (97 id., 102). In the-latter case the receipts from the enterprise were to be divided between the parties, each sharing therein. The same remark is applicable to Champion v. Bostwick (18 Wend., 175). The principle applicable to the case in hand is within Smith v. Bodine (74 N. Y., 30); Richardson v. Hughitt (76 id., 55).

Tbe decisions are uniform that an agreement to receive a certain percentage of profits as compensation for services, does not render the participators in profits liable to third persons as partners. (Burckle v. Eckart, 1 Denio, 337 ; Lewis v. Greider, 51 N. Y., 231; Bradley v. White, 10 Metc., 303; Denny v. Cabot, 6 id., 82; Loumis v. Marshall, 12 Conn., 69; Edwards v. Tracy, 62 Penn., 374; Conklin v. Barton, 43 Barb., 435; Story on Partnership, § 41.)

A contract between common carriers and a railroad company, that the latter shall transport goods received by the former over its road for a proportion of its freight does not constitute a partnership. (Mohawk and Hudson R. R. Co. v. Niles, 3 Hill, 162.)

There was, therefore, no privity of contract between the defendant and the plaintiff, and the former owed no duty to the latter, and was in no manner liable to the plaintiff, or responsible for any injury he might receive while in the employ of the railroad company, upon this ground.

In actions of this character the foundation of a right to recover rests upon contract. It is a part of the contract of employment implied, that the employer undertakes to furnish the employee suitable and safe machinery and implements to be used in the business ■of the master, and without this no obligation m this regard exists.

It is urged by the appellant that the defendant’s liability may •exist on the principle that outside and independent of any contract it should be charged in this case, because the car furnished by it was improperly constructed without due regard to safety in its. use, ■and that it was, therefore, imminently dangerous to human life; and' that the case may be regarded as within the principle of Thomas v. Winchester (6 N. Y., 397); Coughtry v. The Globe Woolen Company (56 id., 124); Devlin v. Smith (89 id., 470).

The car was an open box car, called a gondola, and constructed ¿olely for freighting coal; and the precise defect in the structure ■of the brake complained o.f is that the hole in the wheel was made flanging, or larger at the bottom than the top ; and the rod passing through the same did not closely fit the hole; that the rod below the wheel was only five-eighths of an inch in diameter, when it should have been, as plaintiff claims, at least eleven-sixteenths.

Assuming as we must that the structure of the brake was, as •described, can it be said that it comes within the legal definition df' a piece of machinery or an implement so constructed as to be imminently dangerous to human life, and that the party who placed it in use is liable for any injury a third person may receive thereby. Ruggles, C. J., in Thomas v. Winchester (supra), says: “ If A build a wagon and sell it to 13, who sells it to 0, and C hires it to D, who in consequence of the gross negligence of A in building the wagon is overturned and injured, D cannot recover against A, the builder. A’s obligation to build the wagon faithfully arises solely out of his contract with “ B.” The public have nothing to do with it.” (See, also, Loop et al. v. Litchfield and others, 42 N. Y., 351.)

In this case it does not appear who built the car or how it came into the defendant’s possession, but because there was a defect in-constructing the brake, by which a third party might happen to receive an injury, while using it, furnishes no reason for charging the defendant with the consequences of such injury, because its construction, although negligently done by the builder, does not render it an instrument or implement imminently dangerous to human life. The car in question was an eight-wheel coal box car, about eighteen inches deep and intended to be and only used for the transportation of coal.

It appears from the evidence that brakes constructed in the manner and like the one in question were in frequent use; that the plaintiff used them and knew the manner they were made. Thus he says: “ The brakes on the other cars in the train were about the same as that on this car, so far as I could discover; they were Albany and Susquehanna gondolas; the brakes were about the same as upon the cars when I was hurt; when I applied those brakes I saw what they were; saw their size and how they operated; the new cars had been coming in from sometime in February and March; I had been using the same size of cars and the same size rod all the time; from about December sixteenth to March eighth, I had been using gondolas belonging to the road, with same size brake and wheel and rod. We sometimes had one-third or even two-thirds of the train of this class of cars ; I have used these brakes enough to be familiar with them and knew the size of the rod, wheel and standard.”

There is no evidence showing that the brake rod in question was not of sufficient size and strength for safety. The most that can be said is that if tbe rod bad been larger it would have been stronger and less liable to break, and tbat some rods were in fact made larger. Tbe witness will not say even tbat a five-eighth rod was not an approved size in 1872. It seems quite apparent, then, tbat tbe brake in question can upon no principle be regarded as an article or implement imminently dangerous to human life.

From the testimony it would seem tbat tbe plaintiff was fully acquainted with tbe structure of tbe brake and with its defects, if any existed, and that be continued in the employ of the Midland road, and to use these brakes with this knowledge. As between him and his-employer, therefore, be must be presumed to have assumed tbe risk attendant upon its use, and is without remedy even against tbe railroad company. (De Forest v. Jewett, 19 Hun, 509 ; Laning v. New York Central, 49 N. Y., 521; Gibson v. The Erie Railway Company, 63 id., 449 ; Evans v. Lake Shore and M. S. R. R. Co., 12 Hun, 289.)

The evidence of tbe plaintiff’s knowledge is undisputed, and no complaint was made by him or notice given of tbe alleged defect to bis employers or to tbe defendant.

Tbe nonsuit was properly granted, and tbe order and judgment are affirmed, with costs.

Present — Haedin, P. J., and XeNNedt, J.; Follett, J., not sitting.

Judgment and order affirmed, with costs.


author: Follett, J.;

text:
    JOHN JONES, Respondent, v. THE UTICA AND BLACK RIVER RAILROAD COMPANY, Appellant.

      Negligence — opinion of a physician as to the probable effect upon the health, of injuries sustained by a woman — right of a husband to recover damages for the loss of his wife's society.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Oneida Circuit and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages sustained by the plaintiff for injuries suffered by liis wife.by reason of the defendant’s alleged negligence. February 1, 1882, at about two o’clock p. m., the plaintiff’s wife was injured at a highway crossing, known as “ Price’s ■Crossing,” in the town of Remsen.
    The court at General Term said: “ The attending physician of the wife was asked: £Q. What, in your opinion, must be, in the ordinary course of nature, the effect upon the health of Mrs. Jones of the injuries described by you on the side of her head, • shoulders, abdomen and limbs ? ’ This question was objected to by defendant as incompetent and immaterial, which was overruled and an exception taken. ‘A. I think the injury across the abdomen would have a tendency to injure her general health more than the others. The necessary consequences would be producing this miscarriage— this weakness of the female organs of generation, prolapsus uteri, and a tendency to produce this weakness which would last for a lifetime.’ That the in juries' were severe is undisputed. She was pregnant at the time, and so far advanced that she had previously felt motion, but after the injury she discovered no signs of life in the foetus. March 18, 1882, she was prematurely delivered of a dead child, which the attending physician testified was partially decomposed. He also testified that from September, ' 1883, to about the time of the trial, she had suffered from prolapsus uteri and leucorrhoea. It was competent for the attending physician to give his opinion as to whether her condition resulted from the injury or from other causes. (Matteson v. N. Y. C. R. R., 35 N. Y., 487, 492; Matteson and Wife v. N. Y. C. R. R., 62 Barb. 364; Anthony v. Smith, 4 Bosw., 503.) It was also competent for the attending physician to give his opinion as to the natural and probable duration of the disease. (Strohm v. The N. Y., L. E. and W. R. R. Co., 96 N. Y., 305; Tozer v. N. Y. C. and H. R. R. R. Co., 38 Hun, 100; Rogers’ Ex. Ev., § 51; Lawson’s E. and O. Ev., Rule 27, p. 114.) The fact that, in’ his opinion, her difficulties were permanent and incurable did not render his answer incompetent or immaterial as speculative.
    *****

      “ From the plaintiff’s evidence it appears that his direct pecuniary damages, capable of proof by computable items, were less. than $500 at the time of the trial." The damages were assessed at $1,800. The court, after instructing the jury that the plaintiff was entitled to recover all expenses incurred by reason of the injury, together ■with such damages as had been, or would be occasioned by the diminished ability of the wife to labor, further instructed the jury: ‘ It will be for you to fix such a sum as you, in your best judgment, would say would fairly compensate the plaintiff for the injury which •he has sustained in the loss of the society and services of his wife.’ This was excepted to, and it is urged that the plaintiff, not having been deprived of the society of his wife, the direction that damages might be assessed for loss of sociéty, was error.
    “ For a day or two after the injury the wife was at times unconscious, and at times delirious. To this extent the husband lost the intelligent companionship or society of the wife, but there was no other loss of companionship. The defendant insists that there is no ‘ loss of society ’ in a legal sense, so long as the marital relation is unimpaired or the union unbroken, and that a temporary or permanent diminution of the physical power of the wife to contribute to the happiness of the husband does not authorize a recovery for the loss of society. It is further insisted that if the foregoing proposition •is not the limit of the right of recovery for the loss of society, that damages upon this ground are only recoverable in eases of intentional trespasses or wrongs, and never in cases of unintentional injuries; tbat wben the wrong is unintentional, the husband can only recover such direct- pecuniary damages as are capable of exact measurement, or of estimation with some degree of certainty. ¥e have been unable to find an exact or an approximate definition of the term ‘ loss of society.’ Damages for this cause have been more frequently assessed in cases arising from intentional injuries to marital rights, resulting in a dissolution or suspension of the marital relation. At an early date, the remedy for such injuries was an action of trespass with force and arms, but later, an action on the case was held appropriate, and it was said in such a case, though-quite unnecessary for the decision, that if a husband loses the society and assistance of his wife by an accidental tortuous act of the defendant, an action will lie. ( Winsmore v. Greenbank, Willes, 577; Baker v. Bolton, 1 Camp., 493.) The action was for the recovery of damages for injuring the plaintiff’s wife while traveling in defendant’s stage coach, from the effects of which she died in’ about a month, and it was held the husband could recover for the loss of his wife’s society from the date of her injury to the date of her death.

      “ Lynch v. Davis (12 How. Pr., 323) was an action by a husband to recover damages for unskillful practice of a physician, resulting; in the death of the plaintiff’s wife, and the same rule was held on demurrer at Special Term. Philippi v. Wolff (14 Abb. [N. S.]r 196) was an action by a husband to recover damages for an abortion produced by defendant upon plaintiff’s wife, and resulting in her death, and the same rule was held in Hopkins v. The Atla/ntie and St. Lcmrenee 'Railroad (36 N. H., 9), the plaintiff’s wife was injured on defendant’s road, and it was held that an assessment of damages for the loss of the wife’s services arid society was proper.
    “ In Green v. Hudson River Rail/road Company (32 Barb., 25) the wife was instantly killed, and in Blake v. Midland Railway Company (18 Q. B., 93), the husband died the day after the injury, and both actions were brought under statutes.
    “ Gregin v. Brooklyn Cross-town Rail/road (18 Hun, 368; S. G., 19 id., 341; S. C., 75 N. T.,-192; S. C., 83 id., 595) was an action by a husband to recover damages for injury to his wife while being carried by defendant. Before trial the husband died. The action was continued by his administrator, and it was held (83 N. Y., 595) that the right to recover for loss of society did not survive, but it seems to be assumed that the husband might have recovered for this loss.
    “If a wife is injured by a carrier, the husband may recover for loss of service, expenses and for loss of society (2 Wood’s Ry. Law, 1215, §317; 2RorerRy. Law, 1094,1095 ; 2 Thomp. Neg., 1240), .and if the wife be intentionally injured, the husband may recover for loss of society. (Sch. Dom. Rel., § 77.)

      “ Under the authorities we think the instruction given, that the plaintiff was entitled to recover for loss of society, was correct, and that being so, we cannot say that the damages are excessive.
    “ The order and judgment are affirmed, with costs.”

      A. JM. Beardsley, for the appellant.

      Spriggs, Matthews <& Spriggs, for the respondent.
   Opinion by

Follett, J.;

Hardest,. P. J., and Boardman, J., concurred.

Judgment and order affirmed, with costs.


author: Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. PETER C. ROOSEVELT, Appellant, v. THE BOARD OF SUPERVISORS OF WESTCHESTER COUNTY, Respondent.

      Local act — when not repealed by a general one — chapter 143 of 1840 was not repealed by chapter 615 of 1857.
    Chapter 615 of 1857, providing that in “ every town in the Slate ” the town meeting could, by vote, authorize an additional amount of $750 to he raised' for the improvement of roads and bridges, beyond the $500 allowed to he raised for that purpose by existing laws, did not repeal chapter 143 of 1840, conferring upon the town of Pelham an unlimited power to vote moneys for the repairs of highways, except that it must not be less than the law required of other towns.
    Appeal from an order, entered in Westchester county, denying an application for a peremptory writ of mandamus, compelling the board of supervisors of Westchester county to reconsider and rescind a resolution directing that a tax be levied upon the taxable property of the town of Pelham, in accordance with a resolution passed at the town meeting, providing for the raising of money to be used in macadamizing certain roads.

      C. II. Roosevelt, for the appellant.

      C. E. Eene and William N~. Rylcrnam, for the respondent.
   Barnard, P. J.:

By tbe Revised Statutes tue commissioners of highways in the several towns of the State were permitted, in addition to the labor assessed by law, to raise a sum of money for the improvement of roads and bridges. The amount at first was limited to $250 per year, and that was extended so that the town meeting could vote an additional $250. By chapter 143, Laws of 1840, the town of Pelham was given an unlimited power to vote moneys for the repairs of highways, except that it must' not be less than the law required of other towns. In 1857 (chap. 615, Laws of 18571 the legislature provided that in “ every town in the State ” the town meeting could, by vote, authorize an additional amount of $750 in any year to the $500 possible by existing laws. This act did not in terms repeal the special acts referring to Pelham, but did repeal all laws inconsistent with it. The rule in respect to the repeal of a preceding law by a new one is that the laws must be so inconsistent' and irreconcilable that they cannot stand together. Especially is this the case when the special law is local and the subsequent one general. (People v. Supervisors, etc., 73 N. Y., 173.) Under this rule the local act for Pelham is not repealed by the general one. The words “ every town ” can operate on every town where there is no local law. The two acts can be operated harmoniously at the same time— the locals one in its locality and the general one elsewhere. There is no reason that can be urged which will limit the legislature’s intent to any particular species of road construction. The words of the statute are very general. The Revised Statutes legislate for the improvement of roads and bridges; the local law for the repair of the highways, and the law of 1857 returns to the use of words of the Revised Statutes, “improvement of roads and bridges.” Pelham was to have power to raise without limit for precisely the same purpose as the other towns which were restricted in their powers of taxation.

The argument that covering the roads with broken stone is not within the intent of all • these statutes does seem to rest on a solid basis. It is the usual way to improve or repair a highway. The act in respect to Pelham park, under the jurisdiction of the city of New York, does not take away the obligation on the part of Pel-ham to repair the highways until the park is taken. The use of •words that the act creating the park shall take effect at once does not of itself discharge the town. It is only on the confirmation of the report of commissioners that the city of New York gets the fee, and it is an important question whether the roads in the proposed park are taken. Certainly the roads in it are not yet to be. kej)t in repair by New York.

The order should be affirmed, with costs and disbursements.

Piiatt, J., concurred; Dyeman, J., not sitting.

Order denying writ of mandamus affirmed, with costs and disbursements.


text:
    SARAH ELIZABETH GRIFFIN, Respondent, v. CHARLES D. SHEPARD and HENRY G. CORNELL, Appellants.

      Mepeetant estate — when it may be conveyed by deed.

    A testator devised to Ms son Joseph an equal undivided third of all his real and personal estate, and to his son John C. another undivided one-third. The remaining third he devised to John 0., in case he survived his wife or had a.child which reached the age of twenty-one years; if not, then this remaining third was devised to his son Joseph.

      JSdd, that Joseph had an expectant estate, in the undivided one-third devised to John in case he survived his wife or had a child which reached the age of twenty one years, which Joseph could release and convey by deed.
    Appeal from a judgment in favor of the plaintiff, entered at the "Westchester Circuit upon the trial of this action by the court without a jury.
    This action was brought for the recovery of a one undivided half interest in a farm of forty acres, more or less, situate in the town of Scarsdale, in the county of Westchester. The plaintiff claims said interest under the provisions of the will of Stephen Griffin, who died in the year 1847. He devised his real estate to his sons as follows: “ I give, devise and bequeath unto my son Joseph Griffin one-third of all my estate, real and personal, to hold to him, the said Joseph Griffin, his heirs and assigns, forever, Provided, my son John C. Griffin shall survive his- present wife Deborah L. Griffin, then, in that case, I give, devise and bequeath unto my said son John 0. Griffin the remaining two-thirds of all my estate, real and personal, to hold to him, the said John C. Griffin, his heirs and assigns, forever; or, provided that if my said son John C. Griffin shall have a lawful child by his, the said John 0. Griffin’s lawful wife, and the said child shall live to the age of twenty-one years, then, in that case, I give, devise and bequeath unto my said son John C. Griffin the said two-thirds of all my estate, real and personal, to hold to him, the said John G. Griffin, his heirs and assigns, forever. But, provided that if my said son John G. Griffin shall die, leaving his present wife Deborah L. Griffin a survivor, then, in that case, I give, devise and bequeath unto my said son John 0. Griffin one-third only of all of my estate, real and personal, to hold to him, the said John G. Griffin, his heirs and assigns, forever; and the remaining one-tliird of all of my estate, real and personal, I give, devise and bequeath unto my aforesaid son Joseph Griffin, his heirs and assigns, forever.”
    On the 6th day of February, 1851, Joseph Griffin and Harriet, his wife, and John 0. Griffin and Deborah L., his wife, executed to each other, for the nominal consideration of one dollar, quit-claim deeds of the respective parcels of said farm occupied by each of them, the deed from Joseph Griffin to John 0. Griffin, purporting to convey about thirty-seven acres, being the property in dispute.
    On the 15th day of September, 1864, John 0. Griffin procured from Joseph Griffin a declaratory or confirmatory deed for the consideration of one dollar, whereby the said Joseph Griffin bai'gained, sold and quit-claimed to the said John C. Griffin, and to his heirs and assigns, forever, all of his right, title, interest, estate, claim and demand, both at law and in - equity, and as well in possession as in expectancy of, in and to all that parcel of land which had theretofore been quit-claimed by him to said John 0. Griffin, a part of which was given under his hand and seal February 6, 1857.
    The plaintiff claimed title under a conveyance from Richard H. W. Griffin, the son and only heir-at-law of Joseph, and the defendants claimed under John 0. Griffin. John 0. Griffin died December 4, 1873, leaving him surviving his widow Deborah L. Griffin. He left no child who survived to the age of twenty-one years.

      Sidney Ward, for the appellants.
    ' Elisha Horton, for the respondent.
   Barnard, P. J.:

Tbe title to tbe premises in question by tbe will of Stephen Griffin, deceased, was as follows: Joseph Griffin, a son, took an equal undivided third absolutely. John 0. Griffin took another third absolutely. Tbe remaining third went to John 0. Griffin, if he survived his wife Deborah L. Griffin, or if John 0. Griffin had a child which reached twenty-one years of age. If not, this remaining third went to Joseph Griffin.

John did not survive his wife and did not have a child which became of age. Each of two children had a third and one of them would get the other third upon the happening of a contingency in the future; John C. Griffin, until the happening of the contingency, was vested with the possession of the third, depending upon the contingency until it should go absolutely to one or the other of the brothers, as ascertained by the event. The question is whether the interest of Joseph Griffin could be released in this third part of the estate depending upon the condition named. By our statute expectant estates are descendable, devisable and alienable in the same manner as estates in possession. (1 R. S., 725, § 35.) Such estates are defined to be estates commencing at a future day and reversionary. (1 R. S., 718, § 9.) Did Joseph Griffin have an expectant estate in the land ? The question as to remainders, whether vested or not, has been the subject of much discussion from early times. There seem to be no words which can, in the way of description, meet all or even a considerable portion of the cases discussed ana aecided in the reports. The tendency has been to vest an estate when, it was fairly to be done. Our statute was an advance and the cases of Moore v. Littel (41 N. Y., 66) and Miller v. Emans (19 id., 384) seem to be adjudications under it that sustains the right of Joseph Griffin to convey his interest in the expectant estate.

In Miller v. Emans there was a devise in equal shares with a provision that if one of the devisees died without children the survivor, should take the share equally. In the case of Moore v. Littel lands were deeded to John Jackson for life, and after his death to his heirs and their assigns forever. In both these cases the Court of Appeals held that the estate in expectancy and subsequent to the life estate was assignable. It could not be supported, by any case, that Joseph Griffin’s children would not inherit this interest, in the absence of a will, if Joseph Griffin had died before the contingency happened which gave him the land. Such an heir would take by the will of the deceased Stephen Griffin. The case is not one where Joseph Griffin is divested by his death. The estate goes as the will directs at the happening of the contingency, and whether the children are alive or dead. Both contingency and persons who are to take upon the event are certain, and the only uncertainty is whether John 0. Griffin shall outlive his wife or not, without leaving by her a child of the age of twenty-one years. My conclusion is, therefore, that the deed from Joseph Griffin was good and operative and conveyed the title dependent upon the condition.

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

Pnatt, J., concurred; DyemaN, J., not sitting.

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


author: Barnard, P. J.: Pratt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LIPMAN ARENSBURG, Appellant.

      Bale of animal fat, colored to resemble butter —1885, chap. 183, sec. 7, as amended by sec. 2 of chap. 458 of 1885.
    The -defendant kept for sale and sold, as oleomargarine, a white product of animal fat so colored as to imitate and resemble natural butter.

      Held, that he was guilty of a misdemeanor in violating the provisions of section 7 of chapter 183 of 1885, as amended by section 2 of chapter 458 of 1885. (Pratt, J., dissenting.)
    Appeal by the defendant from a conviction and judgment of the Court of Sessions of Kings county.
    The defendant sold a substance, the product of animal fat, colored in imitation or semblance of natural butter. The person purchasing it asked for oleomargarine and it was sold to him as such. The defendant was engaged in the oleomargarine business and had on the outside of his place of business a sign with the word “ Oleomargarine” thereon.

      F. R. Coudert, Wheeler H. Peckham, John N. Lewis, for the appellant.

      James W. Ridgway, district attorney, for the respondent.
   Barnard, P. J.:

The legislature is the guardian of the public health not only, but is the protector of citizens against fraud and imposition. By chapter 183, Laws of 1885, and amended by chapter 458, Laws of 1885, it was enacted that no person shall manufacture, except from unadulterated milk and cream, any product in imitation or semblance of ” natural butter made from cream, nor shall he sell any article produced in violation of that act. The defendant sold a compound in violation of this act. A dead white product of animal fat is so colored as to resemble butter. It is not sold as butter in this ease, ■but as oleomargarine; but it was an imitation of butter, and purposely made so.' The legislature has power to prohibit a fraud — a simulation of a healthy article of food, and one which is so universally consumed by the people.

The Court of Appeals condemned a law which prohibited the manufacture of an article designed to take the place of butter, but the court seems to make a distinction between manufacturing a compound from tallow or other fats to take the place of butter and the sale of the same compound so colored as to be an imitation of butter. (People v. Marx, 99 N. Y., 377.)

The case of the People v. Kerin (39 Hun, 631) is not in conflict with this view of the statute. In that case the accused purchased the adulteration as dairy butter, and sold it as such, believing it to be dairy butter. The case presented is. one entirely different. The simulated compound is bought and sold as oleomargarine, but is so made as to deceive by a false color. If oleomargarine may be made, let it present no false appearance.” '•

Judgment affirmed.

DyeMAN, J., concurred.

Pratt, J.:

It seems to me this case cannot, in principle, be distinguished from case lately decided by Court of Appeals. I therefore dissent.

Conviction and judgment affirmed.