text:
    MERCHANTS’ BANK, Appellant, v. SUSAN HAYES and others, Respondents.

      Principal and agent — Written contract — when name of principal must appear in — Form of signature by agent necessary to bind principal.

    A principal is not bound by tbe contract of an agent, unless tie name of tie principal is set forti in tie contract, or annexed to tie signature of tie agent, stowing tliat it was the intention of tie agent to contract for and in behalf of his principal.
    How far this rule applies to the case of an undisclosed principal,
      guare.

    In suing on a written instrument — e. g., a promissory note — tie whole liability must be made out on tie instrument itself, and a principal cannot be made liable on a written instrument, or by form of a written agreement, where his name does not appear in the instrument or agreement making him a party to the contract.

    Where the agent of the widow and heirs of L. H., deceased, annexed to Iris signature to a promissory note the words, “attorney for the estate of L. EL,” held, that the principals, viz., the widow and heirs, are not so named as to render them liable upon the note.
    Appeal from an order directing a nonsuit, and ordering exceptions to be heard in the first instance at General Term.
    The defendants are the widow and heirs of Lawrence Hayes, deceased, who died seized of a block of stores in the city of Water-town.
    The defendants, after the death of Hayes, gave to one John Edwards a power of attorney, dated the 26th September, 1873, to demand and receive their rents and superintend the repairs of their buildings, rent the same, and to do and perform all things in relation thereto.
    At some time prior to the 28th April, 1874, said Edwards entered into an agreement-with William Wilson to make and put window guards on the defendants’ stores, for which he was to pay §491.93. When Edwards was applied to for pay (which application was made before the guards were put upon the building), he said he had not got the money, and thereupon gave to Wilson, a note for said sum, dated 28th April, 1874, to the order of Wilson, payable at the Jefferson County National Bank, two months after date, and signed it as follows: “John Edwards, attorney for the estate of L. Hayes.” Wilson procured said note to be discounted by the plaintiff; not being paid at maturity, it was protested, and then this action was brought. Two of the defendants, Susan Hayes and Delia J. Spark, only defended.
    On the trial the plaintiff gave evidence tending to prove the agreement for furnishing the guards, the execution of the note, its indorsement and negotiation by Wilson.
    Plaintiff put in evidence a power of attorney (other than the one above mentioned), from Susan Hayes and Mrs. Sparks, the defendants in this action, to Edwards, dated the 24th February, 1875, empowering the said Edwards to take charge and have a general superintendence, care and control of the real estate and personal property belonging to them jointly and severally, in the city of Watertown, with power and authority to repair, rent and receive rents of any of the buildings, and keep all buildings in repair, and generally to transact all business in connection with and pertaining to such care and control, and to borrow money and incur obligations, and to make and negotiate in their names or otherwise for them and in their behalf; to pay debts, and raise money for any matters connected with said business.
    When the note was given, Edwards said he was the attorney for the estate of Hayes, and would give a note for the amount, and asked Wilson if it would be good enough, and after Wilson consulted with the cashier of plaintiff, told him it would, and he thereupon took it.
    Edwards was called by defendant, and testified that when the note was given the guards were not completed ; that the note was given for Wilson’s accommodation, and that he told Wilson he had no power to give a note to bind the estate.
    At the close of the evidence, the court said: “ It will be assumed that he engaged this man> and had authority through his principals to engage this man to do this work; he had no authority to give this note in the form in which it was written, unless it was implied authority; in fact, he did not undertake to bind anybody but himself, and I don’t think he bound anybody but himself, by this note.”
    The plaintiff’s counsel asked the court to order a verdict for plaintiff. The court replied he would order a nonsuit. The plaintiff’s counsel excepted to the ruling granting a nonsuit, and asked leave to go to the jury upon all the questions in the case. Motion denied and exception taken.
    The plaintiff was thereupon nonsuited, and exceptions were ordered to be heard in the first instance at General Term.

      Winslow & Smith, for the appellant.

      Anson B. Moore, for the respondents.

       See Ingkhart v. Winslow, post, p. 547. — [Rep.

       See Wood v. Hallenbeck, ante, p. 362. — [Rep.

   Mullin, P. J.:

The assumption by the court that Edwards had authority to employ Wilson to make the guards rendered it unnecessary for the plaintiff to submit that'question to the jury, as the jury could do no more for the plaintiff by their verdict, than the court assumed without it.

Edwards having authority to enter into the contract, the price agreed to be paid to Wilson for the guards became the debt of the owner of the stores, and Wilson could sue them and recover the amount due him. But the plaintiff had no such remedy; it must recover, if at all, on the note.

When the case of Green v. Skeel (5 N. Y. S. C. R., 25) was before us, I came to the conclusion, relying upon the head-notes of the case of Coleman v. First National Bank of Elmira (53 N. Y., 388), that when the maker of a note annexed to his name the word agent, that the principal was liable thereon, although his name does not appear in the note or annexed to the signature of the agent. The head-note to which I refer is in these words: The rule that parol evidence cannot be given to contradict or vary a written agreement, does not preclude a party who has Contracted with an agent from maintaining an action against the principal, upon parol proof that the contract was in fact made for the principal, although the agency was not declared in the contract, and was not known to such party at the time of making it.”

The action in that case was brought by Coleman to recover the amount of a certificate of deposit he left as a deposit, as he supposed, in defendant’s bank.

When he handed-the certificate to the teller the latter asked him if he wanted interest upon it, and he said he did. The teller thereupon filled up and gave to him a certificate acknowledging the receipt of the amount upon interest, signed L. R. Yan Campen. Yan C. was the president of the bank. Plaintiff could not read, and did not know that it was not the certificate of the bank, nor did he know Yan C., nor had he ever seen him. Plaintiff, upon hearing that Yan C. had signed the certificate, returned it to the bank and demanded a certificate of the bank or the money deposi.'ed; not getting either, he brought the suit against the bank.

Yan C. was the agent of the bank. He did not sign the certificate as agent, but in his own'name. He was unquestionably personally liable.

The law has been, up to this time, well settled that a principal was not bound by the contract of his agent, unless, in the contract itself, or annexed to the signature, it was shown that the contract was made for and on behalf of the principal, whose name was disclosed.

If the defendant was to be charged with the certificate of Yan C., it was not named in it, and was not for that reason liable upon it.

The difficulty in this case, so far as the question of agency was involved, was, that there was nothing to show that Yan C. intended to bind the defendant, and if not, then it was not liable on the certificate.

There are cases in which a principal is liable upon the contract of his agent, although the agent does not disclose the name of his principal at the time, of making the contract, but it is afterward discovered. But in this case the plaintiff knew who the principal was with whom he intended to deal, and with whom it was ultimately held lie did-deal. He knew when he made the deposit all that Yan C. could have told as to who the principal was. The case then was not within the principle that makes liable an undisclosed principal.

The learned judge was doubtless right in holding that, upon the facts proven, the bank was liable irrespective of the question of agency.

I understood the learned judge, in considering the question of agency, to lay down an entirely new rule as to the- liability of a principal for the acts of his agent, and that rule was, that any person not a party to the original contract might recover against the principal upon showing, by parol, that the agent was in fact agent of such alleged principal, and authorized to enter into the contract for him, although the name of the principal was not disclosed in the contract, or by any thing annexed to the signature of the agent.

If it had been the intention of the court thus to decide, it would have overturned a long series of decisions, and especially the case of Dewitt v. Walton (9 N. Y., 571), to which I referred in the opinion of Green v. Skeel (supra), as not having been followed.

A more careful examination of the ease of Coleman v. First National Banks of Elmira, satisfies me that the Court of Appeals did not intend in that case to unsettle the law of principal and agent, as I had been lead to believe from reading the head-note.

The case of Green v. Skeel was rightly decided, nothwithstanding the error as to the principle decided by the Court of Appeals.

. We must, therefore, hold the law to be, that a principal is not bound by the contract of an agent, unless the name of the principal is set forth in the contract, or annexed to the signature of the agent, showing that it was the intention of the agent to contract for and in behalf of his principal. If the contract does not show this important fact the principal is not bound, but the agent may be personally responsible on the contract.

The only remaining question is, has the agent so made the contract as to bind his principals, the widow and heirs of Lawrence Hayes, deceased.

He has annexed to his signature the words, " Attorney for the estate of L. Hayes.” Is this statement equivalent in law, to declaring that he signs the note as attorney for the several persons who constitute the widow and heirs of said Hayes ?

It is said in 1 American Leading Cases, that in order that a principal may be bound upon a written instrument not under seal, it is necessary that his name should appear in some part of the instrument. The rule is, that in suing on a written instrument, such as a promissory note, the whole liability must be made out on the instrument itself, and that parol evidence is not admissible to alter or add. to a written agreement that is made the grounds of the action, and therefore a principal cannot be made liable on a written instrument, or by force of a written agreement, when his name does not appear in the instrument or agreement as a.party to the contract. If the names of the widow and heirs must be disclosed on the face of the instrument in order to subject them to liability, it is not done in this case, aud the plaintiff was rightly nonsuited. In Clinton v. The Hope Insurance Company (45 N. Y., 454), the action was upon a policy of insurance issued by the defendant, " insuring the estate of Daniel Ross ” for one year, on a cotton mill and the machinery therein.

The property had been insured by defendant during the life of Ross, and after his death the widow applied for and obtained the policy in suit, for the benefit of herself and children. Ross died intestate, leaving surviving him a widow and three children.

A contract was entered into between the widow and the guardian of the infants to sell the insured property to the plaintiff, but the conveyance was not made until after the fire.

The objection was taken on the trial, that the widow, as administratrix, did not have, at the issuing of the policy, an insurable interest therein.

The Court of Appeals held that it was not essential to the validity of the policy of insurance that the insured should be named in it, and that the words, the estate of David Ross, used in the policy, were intended to designate the person holding the legal title, and to speak of the property left by a deceased person, including the real property, especially before final settlement of his affairs; and it was also held that the interests both of the administratrix and of the heirs in the insured property were covered by the policy.

It was held in Cruger v. Dougherty (43 N. Y., 107), that an assessment upon certain leases to J. K., and other legal heirs of the late J. K. deceased, or their heirs or assigns, the J. IL first named being dead at the time of the assessment, was void.

The statute under which the assessment was made, directed it to be made upon the person or persons entitled to receive the rents, in the same manner and to the same extent as any personal estate.

In Wheeler v. Anthony (10 Wend., 346), it was held, that where a farm is owned and actually possessed by the widow and heirs of a deceased person, the designation of such owners in a tax-list and warrant for the collection of a common school distinct tax, as the widow and heirs of A. B. deceased, is a sufficient compliance with the directions of the statute, to justify the collector in executing the warrant.

I am unable to understand why the courts should have arrived at such widely different conclusions in the two cases. In both the tax was personal and it would seem that the assessment was either void or valid in both. It seems to me that the principle decided in Clinton v. The Hope Insurance Company, must be confined to contracts of insurance, and cannot be extended beyond them.

If I am right in so holding then this case is left to be governed by the law of principal and agent, and as the defendants are not named in the contract sued upon they are not liable.

The nonsuit was right and the judgment must be affirmed.

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

Judgment affirmed.


source: Caselaw Access Project

author: E. Darwin Smith, J.:

license: Public Domain

text:
    EUNICE H. RAGAN, Appellant, v. ANN ELIZA ALLEN and SARAH J. BUDD and others, Respondents.

      Will — construction of — Legacy, when a charge upon real estate.

    When a testator gives several legacies, and then without creating any express fund or trust for their payment, makes a general residuary disposition of the rest, residue and remainder of his real and personal estate, blending the real and personal together in one fund, the real estate is to be charged with the legacies, upon the ground that in such case the rest, residue and remainder can only mean what remains after satisfying the previous legacies.
    Appeal from a judgment at Special Term dismissing the plaintiff’s complaint, in an action to obtain a construction of a will and the payment of a legacy thereunder.

      George W. Smith, for the appellant.
    The widow stands in the character of purchaser for a valuable consideration. (1 Jarman, 440; Redfield, 749, § 25; Isenhart v. Brown, 1 Edw., 411; Pollard v. Pollard, 1 Allen, 490; Hubbard v. Hubbard, 6 Mete., 50; Gole v. Hiles, 10 N. Y. S. C. [3 Hun], 326.) The testator intended that the $2,000 should be paid out of real estate if necessary. Both real and personal are blended together. (Kidney v. Coussmalcer, 1 Yesey, Jr., 436; Aubrey v. Middleton, 2 Eq. Abr., 497; Gole v. Turner, 4 Russ., 376; Perry on Trusts, § 570; Dey v. Dey, 19 N. J. Eq., 140.) Legacies are made charges by the same words, that give that effect to debts charged. {Beuvelt v. Whitaker, 3 Russ., 348 [3 Eng. Ch., 348]; Dover v. Gregory, 10 Rim., 393; Mirehonse v. Seaife, 2 Mylne & Craig, 707; Gole v. Turner, 4 Russ., 377; 2 Jarman, 515, 516; Rafferty v. Garle, 1 Barb., 473; Elliot v. Haneoelc, 2 Yern., 143; Perry on Trusts, § 569 ; 10 Moak’s Eng. Rep., 738.) The provisión for the widow will be regarded as the primary intention of the testator. (Pierre-pout v. Edwards, 25 N. Y., 128; S. C., 24 How. Pr., 420; Newton v. Stanley, 28 N. Y., 61; see further cases cited, 10 Moak’s Eng. Rep., 735, note; Cole v. Niles, 10 N. Y. S. C., 326.)

      C. D. Adams, for the respondents,
    cites Lupton v. Lupton (2 Johns. Ch., 614); Reynolds v. Reynolds (16 N. Y., 257); Kinnea/r v. Rogers (42 N. Y., 531); JBabeock v. Stoddard (3 N. Y. S. 0., 207).
   E. Darwin Smith, J.:

The single question presented upon this appeal is, whether the legacy given to the plaintiff in the will of her deceased husband in lieu of dower, and accepted by her, is a charge upon the real estate, the personal estate, after-the payment of the debts of the testator, being insufficient to pay such legacy. The will, after providing for the payment of the testator’s debts, gives to the plaintiff, in lieu of dower, the sum of $2,000, to be held by her and for her use, comfort, support and maintenance, to be invested and controlled during the term of her natural life as she may desire, and to spend so much of the principal and interest thereof as may be needed for her support, comfort and maintenance, and after her decease, whatever should remain thereof to be divided between his two daughters and others.” The will then gives two legacies, one of $600 to one granddaughter, and to four other grandchildren $100 each ; and fourthly is the clause following : I give and bequeath the rest, residue and remainder of all my real and personal estate of every name and kind soever, to my two daughters,” two of the respondents in this action. And in a codicil to said will, afterward executed, the testator recites that he had given his said wife $2,000 for her support and maintenance during her natural life, and in which will he had bequeathed “ the remainder of his personal and real estate to others.”

The will makes no specific legacy of any property, and designates no fund out of which said legacies should be paid.

In this particular, the case is unlike that of Babcock v. Stoddard (3 N. Y. Supreme Court, 207). In that case, the testator gave to his wife all his household furniture, and he also bequeathed to her the use of one-third of fifty-two acres of land owned by him, during her natural life, provided she so long remained his widow. "We held, upon the authority of Lupton v. Lupton (2 Johns. Ch., 614), which has been uniformly recognized, and regarded as asserting the true rule for the construction of wills in respect to the residuary clauses thereof, that the legacies given in said will were not a charge upon the real estate of which the testator died seized.

That case was doubtless correctly decided, but does not, we think, control or affect the proper decision of the case at bar. In this case, the words in the residuary clause of the will, “ the rest, residue and remainder of my real and personal estate,” have no proper or appropriate reference in the preceding portions of the will. They refer to no property given, bequeathed or devised.

The legacies given in the will are bald, naked legacies. So far as relates to any proporty, in respect to which the words, “the rest, residue and remainder of my estate,” relate, they are perfectly meaningless.

The case in this particular is like that of Tracy v. Tracy (15 Barb., 503), where the real estate was held charged with the payment of the legacies, upon the ground that the real and personal estate were blended, as in this case, in one devise. The learned judge, in that case, cites numerous cases in support of that rule, which are also equally applicable in this case. The case of Shulters v. Johnson (38 Barb., 80), is also equally analogous to this, and I think a controlling authority upon the question before us.

In that ease after several general legacies were given by the will to different children of the testator, without any express provision made for their payment, a general residuary clause was inserted as follows : “ I give and devise all the rest and residue and remainder of my real and personal estate” to two other sons.

In substance precisely the same language used in the will under consideration.

In a very careful opinion of the learned judge who delivered the opinion of the court, the whole doctrine on this question was very carefully discussed, and it was held that the words “ the rest, residue, and remainder of my real and personal estate,” meant the whole estate, real and personal, and that the testator intended that the residuary legatees should take what was left or remained of the estate, real and personal, after the other previously declared legacies, were paid. That case is considered and reviewed, and the rule asserted in it approved in The Roman Catholic Church v. Wachter (42 Barb., 43). The rule to be deduced from these cases; that when a testator gives several legacies, and then, without creating any express fund or trust for their payment, makes a general residuary disposition of the whole estate blending the real and personal together in one fund, the real estate is to be charged with the legacies, upon the ground that in such case the rest, residue and remainder can only mean, what remains after satisfying the previous legacies, is asserted in Hill on Trustees (p. 360), in Tiffany arid Bullard, on the Law of Trust and Trustees (p. 305), and Perry on Trusts (§ 570), with reference respectively to numerous English and American cases in support of such rule.

The judgment should be reversed, and a new trial granted without costs of appeal to either party.

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

Judgment reversed and new trial granted without costs to either party.

       See Bevan v. Cooper 7 Hun, 117. — [Rep.


text:
    HENRY ZULLER and others, Respondents, v. WILLIAM C. ROGERS and another, Appellants.
    Wawanty— measure of damages — Sale and delimery — executory contracts.

    In an action for a breach of warranty, arising out of the sale of a canal boat which was proved to be unfit to navigate the canal, held, that the measure of damages was : first, general damages, which would consist of the difference between the value of the boat as she was, and as she was warranted to be , and, second, the special damage sustained by delays, loss of time, and other injury on the first trip of the boat, unavoidably sus'ained before the defects were ascertained.
    In the ease of executory contracts for the sale and delivery of personal property, when there is a warranty, the vendee may receive the property and rely upon his warranty.

      Reed v. Randall (39 N. Y., 358) distinguished.

      Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury, in an action for a breach of warranty in the sale of a canal boat by the defendants to the plaintiffs.

      Sedgwick, Andrews db Kennedy, for the appellants.

      I). Pratt, for the respondents.
   E. Darwin Smith, J.:

The verdict, under the charge of the circuit judge, was doubtless based upon a finding by the jury that the sale was made upon a warranty. The defendants were boat-builders, and the boat was constructed to be used upon the Erie canal, and the warranty necessarily implied that she was properly constructed and adapted for the navigation of said canal. The breach complained of by the plaintiff was, that the said boat was built too wide and too high, and that she was unfit and unsuitable to navigate the said canal, and would not pass safely through the locks upon said canal or under the bridges over the same.

The plaintiff gave proof satisfactorily establishing the breach of said warranty in these particulars, and the question at the Circuit was narrowed chiefly to one of damages. The boat, it also appears, was designed and constructed to convey wheat in bulk, and this was well understood by both parties, and she was immediately, upon her completion, loaded at Jordan, the place where she was constructed, with a cargo of wheat, and started for Albany with such freight. During the trip it was found that the boat was too wide to pass safely through the locks, and too high to pass safely under the bridges over the canal, and she became more or less injured and sprang a leak, which caused more or less delay and detention to secure her freight and transport it to its destination.

The damages which the plaintiff was entitled to recover upon this state of facts, I think it quite clear, were: 1st. General damages, which would consist of the difference between the value of the boat as she was and as she was warranted to be. (Cary v. Gruman, 4 Hill, 625; Passenger v. Thorburn, 34 N. Y., 634.) And 2d. The special damage sustained by delays, detention, loss of time and other injury on the first trip of said boat, unavoidably sustained before her defects were ascertained. (Sedgwick on Damages, 350; Ferk v. Sank, 12 Wis., 276; Rose v. Wallace, 11 Ind., 102; Milburn v. Belloni, 39 N. Y., 53.) No proof of any damages sustained, as or for consequential damages from injury to the wheat on said boat, was given, or other special damages, except for delays and detention by the way.

The first exception taken by the defendants was based upon the ground that the boat being sold upon an executory contract, the plaintiffs were bound to discover its defects before delivery, and were concluded by their receipt of the same. This exception was not well taken. The plaintiff bought with warranty, and the case of Reed v. Randall (29 N. Y., 358) does not apply to cases of warranty. The vendee in such case may receive the property and rely upon his warranty. (Dounce v. Dow, 57 N. Y., 16; Day v. Pool, 52 id., 416.)

Proof showing the value of the use of the boat, horses and crew, per day, was admissible under the ruling of the circuit judge, allowing the pleadings to be amended so as to include such damages.

The defendants’ counsel excepted to that portion of the charge, wherein the judge instructed the jury that in estimating the damage they might take into consideration and allow the expense of unloading, storing, and reloading the grain. The judge answered : “ Unless he was negligent in not taking the boat on the dry dock at Frankfort lock.” The counsel excepted to the charge with this qualification. The judge then said: “I will ask the jury, in writing, to find expressly upon that fact; -to find whether the plaintiff’s agent was negligent in not taking the boat on the dry dock — the first dry, dock in question below Frankfort.” This question was accordingly submitted to the jury in writing, who answered it 'in the negative. Upon the portion of the charge referred to in this exception, and this question submitted to the jury, they would be authorized to embrace in their verdict the expense as proved, of unloading, storing and reloading the 9,100 bushels of wheat said boat contained, which, as the judge states the proof, would amount to ninety-one dollars for unloading, storage same amount, ninety-one dollars, and reloading same amount, ninety-one dollars, making $273 for work never done, and expenses not in fact incurred. I cannot see upon what principle these portions of the charge can be upheld.

The proofs tending to show these facts were also objected to when offered, and received under the objection and exception by the defendants.

This evidence was clearly inadmissible. It tended to establish an imaginary state of facts, and furnished no proper element of damages.

The plaintiff was also allowed to prove what the plaintiff’s loss would have been, for the delay of the boat and crew while the cargo was being unloaded and reloaded, etc. The reception of this evidence, and the charge in respect to it, were also erroneous. The jury were allowed to find for four days’ detention of boat and crew during this period, at fifteen dollars a day, sixty dollars.

Assuming that the jury followed and obeyed.these instructions of the circuit judge in these particulars, their verdict is erroneous to the amount of $333. The verdict in excess of this amount is fully warranted by the evidence.

It was proved that it would cost to cut down the cabins so as to make it safe for the boat to pass under the bridges, from $150 to $200. This expense, with other items of damages clearly recoverable, would exceed the verdict, which was $460.

If the.plaintiff is content to deduct from the judgment the said sum of $333, and interest thereon from the time of the rendition of said verdict, then he should be allowed to retain it for the balance, and the judgment should be modified and affirmed accordingly ; otherwise the judgment must be reversed and a new trial granted, with costs to abide the event.

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

Ordered accordingly.


text:
    MARY WATROUS and others, Appellants, v. HELEN M. SMITH and others, RESPONDENTS.

      Win — construction of — Legacies—demonstrative and specific.

    A legacy is held to be demonstrative, when the testator has bequeathed a certain sum of money or annuity in such a manner, as to show a clear, separate and independent intention that the money shall be paid to the legatee in all events. In such a case the legacy, or any deficiency, is to be paid out of the general estate, when the primary fund set apart for its payment fails, in preference to other legacies.
    But when it is clearly the intention of the testator that a fund is to be created by the sale of certain property, and the income of the proceeds of such sale paid to the legatee as a specific legacy, it is the duty of the executors to invest the money arising from the sale of the property mentioned in the will, and pay over to the legatee the income arising from such investment only.
    Appeal from a decree o.f the surrogate of Wyoming county, on the final settlement and accounting of the executors of Leonard W. Smith, deceased.

      M. H. Peale, for the appellants.

      James A. Allen, for the respondents.
   E. Darwin Smith, J.:

The will of the decedent, Leonard W. Smith, after making several small specific bequests, contains the clause or provision following:

‘‘ It is my will and I do hereby direct and authorize and empower my executors hereinafter named, to sell and dispose of my real and personal estate, not herein devised and bequeathed, and convert the same into money as soon as the same can be done without prejudice to the estate; $8,000 tobe converted into bonds and mortgages, the interest of which said sum I give and bequeath to my wife, Helen M. Smith, during her widowhood, which is intended in lieu of dower.”

What is the proper construction of this provision of the said will, is the question presented to us upon this appeal.

It appears from the proof before the surrogate, that the said Leonard W. Smith died seized of several parcels of real estate in which the respondent was entitled to dower, and which constituted the bulk of his estate, and that sJie had accepted the provision made for her in the will in lieu of dower, and that the real and personal estate liad been sold and converted into money, and that as appears from the statement of the accounts of the execufbrs, as settled in the decree of the surrogate, after paying the debts and funeral expenses and the expenses of administration, there remained in the hands of the executors only the sum of $5,865.20 for investment in bonds and mortgages under the foregoing prevision of the will, and the decree directs that the said executors invest this sum, or so much thereof as remained after the payments ordered in said decree, and keep the same loaned and invested upon interest, to be paid annually to the said Helen M. Smith during her widowhood; and that the said executors with the interest on such loans and investment so to be made as aforesaid, together with so much of the principal thereof as shall from year to year be necessary for that purpose, shall and do pay to the said Helen M. Smith. $560 on the fifteenth day of March in each and every year after the date of this decree, so long as the said Helen M. Smith shall remain the widow of the said Leonard W. Smith, deceased.

This appeal is from this portion of the decree, and the construction of the fifth clause of the will upon which it is based. The principle asserted and involved in such decree, is substantially, that said clause was designed to give to the widow, a fixed certain annuity of $560, and'tliis construction of the said will is distinctly .asserted in a former part of the decree, as follows: “And it is further ordered, adjudged and decreed that by the terms and provisions of the last will of the said deceased, Helen M. Smith, the widow of the said deceased and one of the legatees named in said will, became entitled to receive annually from the death of said testator, during the period of her widowhood, $560, to be paid to her annually from the death of said testator and from out of the estate of the said deceased.” The case contains no opinion of the surrogate, but from the argument of the respondent’s counsel addressed to us in support of said decree, I should presume that the said decree was made and based upon the opinion that the said bequest to the widow contained in said clause of the will was a demonstrative legacy or annuity and not a specific legacy.

It is doubtless in many cases, as judges have frequently-said, difficult to determine whether a particular legacy was demonstrative or specific, but the cardinal rule for the construction of all wills is to seek the intention of the testator and to carry such intention into effect. The cases in which the courts have held a legacy to be demonstrative have been those where the testator has bequeathed a certain sum of money or annuity in such a manner as to show a clear, separate and independent intention that the money shall be paid to the legatee in all events. In such case the legacy, or any deficiency, is to be paid out of the general estate where the primary fund set apart for its payment fails, in preference to other legacies. Such were the cases of Giddings v. Seward (16 N. Y., 365); Pierrepont v. Edwards (25 id., 128), and such the rule asserted generally in the English cases. (Dickens v. Edwards, 30 Hare, 275; Mann v. Copland, 2 Maddock, 223; Savile v. Blacket, 1 Peere Wins., 778; Creed v. Creed, 11 Clark & Finnelly, 491; Gordon v. Duff; In re Ward, 28 Bevan, 519.)

But very clearly, I think, that this was not a legacy of this description. It was, and was designed to be, a specific legacy of the income of securities in bonds and mortgages to the amount of $8,000, if the testator’s estate after payment of his debts and funeral expenses and the expenses of administration amounted to that sum; and if not to the income of all the estate remaining, during the life or widowhood of the respondent. This was the clear intent of the testator. The fund was to be created by the sale of all his real and personal estate for that purpose, and was to be in lien of dower, which was to be absorbed in the fund. Instead of leaving his widow to her dower rights in his real and personal estate, he thought it best to merge it with the whole real and personal estate, and have it invested in bonds and mortgages, and give her a specific legacy of the income of $8,000 from such security, which he doubtless supposed would somewhat exceed that sum.

It was the duty of the executor as soon as possible without -sacrifice to the estate, to sell and convert the same into money, and invest in bonds and mortgages the whole excess of the proceeds thus arising, after payment of debts and expenses of administration, and to pay her annually the income or interest arising from such security. This was her legacy, and the executors had no authority to pay her any other moneys under the will.

The widow was the primary legatee, and stood in equity virtually as a purchaser, by reason of the relinquishment of her dower, and her acceptance of the provision made for her by the will. But she could take no portion of the principal. She was entitled to the income for life, as if it were in fact dower property duly assigned, but she forfeited it by marriage.

The decree of the surrogate should be reversed, and should be referred back to him, to readjust the accounts of the executors upon the principles herein asserted, without costs of appeal to either party.

Noxon, J., concurs; IVIullin, P. J., dissents.

Judgment reversed, and it is referred back to the surrogate to readjust the accounts of the executors upon the principles asserted in the opinion of Justice Smith, without costs of appeal to either party.


text:
    HIRAM INGLEHART and JOHN WINSLOW, Jr., Respondents, v. THE THOUSAND ISLAND HOTEL COMPANY, Appellant.

      Principal and agent — undisclosed principal — liability of.

    If goods are purchased by an agent without disclosing his principal, the creditor may, nevertheless, hold the principal for the debt when discovered.
    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury.
    The action was brought to recover for goods sold and delivered to the firm of Staples & Nott by the plaintiffs, and Sloat, Green-leaf & Company, and Belknap, Palmer & Co. (who assigned their claims to the plaintiffs), at various times between March 21, 1873, and August 18, 1873. The defendant was incorporated April 28, 1873. The incorporators being Oren G. Staples and wife, and Copley A. Nott and wife, and the object of the incorporation being stated to be the business of erecting buildings for hotel purposes, and keeping a hotel. Oren G. Staples and Copley A. Nott composed the firm of Staples & Nott. The goods sold were groceries, lumber and hardware, used in the construction and keeping of the hotel, and the plaintiffs ánd their assignors were, at the time, ignorant of the existence of the defendant. Iu settlement of the bills, Staples & Nott gave their firm notes. The parties accepting the notes knew nothing of the existence of the corporation.
    The answer contained a general denial, and averred the acceptance of the notes of Staples.& Nott in payment; that the indebtedness was contracted by Staples & Nott; that the plaintiffs agreed to accept twenty per cent of their original claim in settlement; that Sloat, Greenleaf-& Company agreed to alike compromise, and that Belknap, Palmer & Company made their claim the basis of a petition iu bankruptcy against Staples & Nott.
    Nothing was paid under the alleged compromise, and the proceedings in bankruptcy went no farther than the filing of the petition.
    The amount of recovery was limited by the court, to so much of the several accounts as accrued after the date of the incorporation of the defendant.

      Anson B. Moore, for the appellant.

      Bradley Winslow, for the respondents
   E. Darwin Smith, J.:

The motion for a nonsuit, we think, was properly denied. It was proper to submit the question to the jury, whether the goods purchased nominally by Staples & Nott, after the incorporation of the defendant, were purchased on their own account, or for the benefit of the defendant. Confessedly, the hotel was erected and carried on by Staples & Nott. They were the president and secretary of the defendants’ company, and they and others were the trustees and stockholders of said company. The only men ostensibly connected with the management and control of said hotel and its affairs were said Staples and Nott, and it was a proper question and inquiry for the consideration of the jury, in what capacity they were acting in that relation, whether individually or on behalf of the defendant. If as officers or agents of the defendant they were carrying on said hotel, the defendant was clearly dable for debts contracted by them for such purpose, as correctly held by the circuit judge, even though such debts were nominally contracted in their own names. The law on this point was correctly stated in his charge to the jury by the circuit judge. (Story on Agency, §§ 267, 419; Beebe v. Robert, 12 Wend, 413; Ferguson v. Hamilton, 35 Barb., 427.)

If the goods are purchased by the agent in his own name, the creditor may, nevertheless, hold the principal for the debt, when discovered. (Porter v. Talcott, 1 Cow., 359; Taintor s. Prendergast, 3 Hill, 72.)

None of the exceptions to the charge, and to the refusals of the judge to charge as requested, we think, are well taken.

Upon the question whether the defendant was carrying on the hotel when the said debts were contracted, it was not error to allow the jury to take into consideration, coupled with the other evidence in the cause, the fact that the articles of incorporation of the defendant specified that “the objects for which the said company was'formed were the business of erecting buildings for hotel purposes, aud keeping a hotel.”

The judgment should be affirmed.

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

Judgment affirmed.


text:
    THE LAKE ONTARIO NATIONAL BANK, Respondent, v. THE ONONDAGA COUNTY BANK, Appellant.

      Corporation — dissolution of— cannot be effected by a resolution of its directors — JRevised Statutes, part 3, chapter 8, title 4, article 3.
    A resolution of the directors of a bank, that said bank go into liquidation, be closed and its business cease, and that its franchises be surrendered, does not operate, to dissolve.the corporation.
    Nothing but an act of the legislature repealing its charter, or a decree of a competent court, can dissolve a corporation so as to preclude suits and actions against it to enforce, its debts and liabilities.
    A corporation can only effect its voluntary dissolution by petition to the Suprem e Court, and proceedings under article 3, title 4, chapter 8, part 3 of the Revised Statutes.

      Appeal from an order of the Special Term, appointing a receiver upon the petition of a judgment creditor in a proceeding under section 36 of article 2 of title 4, chapter 8, part 3 of the Revised Statutes.

      G. W. Kennedy, for the appellant.

      K. IT. Kutting, for the respondent.
   E. Darwin Smith, J.:

On and prior to the 21st day of February, 1875, the appellant was a regularly organized bank under the statutes of this State, providing for the organization of State banks. On or about that day the directors of said bank, as appears from the affidavit of its cashier and notice of that date by him served upon the superintendent of the bank department of said State, passed a resolution that said bank go into liquidation, be closed and its business cease on that day,' and that its franchises be surrendered; and thereupon the securities deposited with said superintendent be returned.

The proceedings under section 36 of article 2, chapter 8, part 3 of the Revised Statutes (2 R. S., 463), entitled, Of proceedings against corporations in equity ” for the appointment of a receiver of a corporation after judgment recovered and execution returned unsatisfied against it, and for the sequestration of its property and effects, and such is this proceeding, doubtless assumed the actual and continued existence of the corporation. Such proceedings could not be instituted and sustained against a dissolved or extinct corporation.

It is claimed on the part of the appellant, that the proceedings of the directors and officers of the Onondaga County Bank above stated, operated to dissolve said corporation, and that thereafter no valid judgment could be recovered against said bank, and that it had no officers who could be served with or receive process for that purpose.

This we think a mistake. A corporation can only effect its voluntary dissolution in the manner prescribed in article 3 of the title, chapter and part of the Revised Statutes aforesaid. The proceedings of the directors of the defendant’s bank were clearly not taken under said article, and are-not in conformity therewith; and were, therefore, entirely ineffectual to accomplish the dissolution of said corporation and abortive.

The discontinuance of the business of the bank under said resolution, could work no dissolution of the corporation. Nothing but an act of the legislature repealing its charter or a decree of a competent court can dissolve a corporation so as to preclude suits and actions against it to enforce its- debts and liabilities. This has recently been so expressly decided by the Court of Appeals in Kincaid v. Dwinelle (59 N. Y., 552).

The order in this case of the Special Term was, therefore, entirely regular and correct, and should be affirmed, with costs.

Present — Mullís, P. J., Smith and Noxon, JJ.

Order affirmed, with costs.


text:
    HENRY N. KELLOGG, Appellant, v. JOHN L. SMITH, Impleaded with JACOB ALLEN, Respondent.

      Appeal — change of nenue.

    An appeal from an order changing the venue for the convenience of witnesses (if such order be appealable), can only be heard in the department embracing the county to which the action has been transferred.
    Appeal from an order of the Special Term, changing the place of trial of this action from Oneida to Otsego county.

      E. J. Richardson, for the appellant.

      J. J. Duddleston, for the respondent.
   E. Darwin Smith, J.:

This is an appeal from an order made at the Otsego Special Term, changing the place of trial from Oneida to Otsego county for the convenience of witnesses. The order was made at a Special Term in Otsego, held March 30, 1815, and entered in Oneida county clerk’s office, April fifth, and the papers transmitted to the clerk of Otsego, and filed and entered in the Otsego county-clerk’s office, April sixth.

The notice of appeal is dated the eighth May, and is addressed to and, I presume, was served upon both the clerks of Oneida and Otsego counties. If the order in this case were appealable (which I am not prepared to admit; on the contrary, I think otherwise, and that it involves no substantial right), we think it can only be heard in the third department. After the papers were transmitted from the Oneida to the Otsego county clerk’s office, the place of the trial of the cause was changed to that county, and the appeal could only be made to, and heard in the third department. The notice of appeal in such case must be served upon the clerk having the custody of the papers in the cause. These papers, when the appeal was brought, were in the lawful custody of the clerk of Otsego county. If an appeal had been immediately brought from the order, with a stay of proceedings before the papers had been transmitted by the clerk of Oneida to the clerk of Otsego, then the appeal could properly have been brought to a hearing in this department.

But in the present state of the cause, we should decline to hear the appeal, and leave the party at liberty to bring it to a hearing in the third department, if he shall be so advised; otherwise we should dismiss the appeal.

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

Ordered accordingly.


text:
    GEORGE ZIMMER, Administrator, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Baib’oad crossing — negligence — ringing bell and sounding whistle — not the entire ' duty of the company.

    A railroad company has not discharged its whole duty to the public, by simply causing the bell to be rung, or the whistle sounded for the distance required by statute, before crossing a street or highway, and particularly in populous cities and villages.

      Appeal from ail order of the Special Term, denying a motion for a new trial upon a ease and exceptions, and also an appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, in an action for injuries caused by the defendant, resulting in the death of the plaintiff’s intestate.

      Harris c& Cook, for the appellant.

      Hijpsom da Terry, for the respondent.
   E. Darwin Smith, J.:

At the close of the plaintiff’s evidence a motion was made by the defendant’s counsel for a nonsuit, which was denied and an exception taken, and the same motion was renewed and denied at the close of the defendant’s evidence and exception duly taken.

These exceptions present the only question raised in the case for our decision.

The place where the accident occurred was at a railroad crossing of a public and much traveled street in the city of Rochester. No flagman was watching and guarding the crossing at the time, though he was customarily employed there in the daytime. The engineer in charge of the locomotive causing the injury, had just backed his engine from the turn-table and over switches situate just east of Hudson street, on which the accident occurred, across said street, and having reached his proper track had stopped and started forward, and was moving eastwardly, sitting on the right hand or south side of his engine, and not in a position to see persons approaching to cross said track in Hudson street from the north. He had with him a fireman and a brakeman on said engine. Whether the bell was rung at the time, and in a manner adapted, and requisite to give due warning of the approach of said engine, and whether the engine was moving at a proper and allowable rate of speed under the city ordinance, and whether the plaintiff’s son was negligent in attempting to cross the track at the time and under existing circumstances, and whether the defendant’s engineer and the other men on the engine and tender, exercised due care in approaching and crossing said street to avoid a collision with the plaintiff’s wagon, were all questions of fact and more or less in dispute.

The degree of care required of railroad companies, in crossing with their locomotives and trains much traveled, public streets in a city or populous village, is obviously much greater than is required in crossing an ordinary highway in the country.

The restriction imposed by the ordinance of the city of Rochester, forbidding engineers upon railroads from running their trains at a rate of speed over eight miles an hour within the limits of said city, was obviously designed to secure-such care and caution in the passage of trains over the streets of said city, as would be likely to prevent many accidents and injuries like the one in question in this action. The jury were charged in light of this consideration, that if they wore satisfied by the evidence that under the circumstances of the case the persons in -charge of the engine omitted to take reasonable care when the approached the street, and while they were crossing it to avoid collisions with passengers in the highway, and such omissions caused the accident, the defendant was chargeable with negligence. This charge assumes what I think is clearly the law, that a railroad company has not discharged its whole duty to the public by simply causing the bell to be rung or the whistle to be sounded for the requisite distance before crossing a street or highway, required by the statute, and particularly in populous cities or villages.

In the case of Costello v. The Syracuse and Binghamton Railroad Company (60 Barb., 103) we held that “ it was the duty of railroad companies to supply their trains with brakes of the most approved kind, and that it was no more than reasonable to require them to run their trains through cities and villages at such moderate rate of speed, as that by the use of brakes the trains might speedily be stopped, so that neither persons nor property should be exposed to injury.”

The cases of Fero v. The Buffalo and State Line Railroad Company (22 N.Y., 209) and Beisiegel v. New York Centred Railroad Company (34 id., 628), assert the same rule in respect to the higher degree of care and caution which should be exercised by railroad companies running their cars through cities and villages.

How far in this case the obstruction arising from the erections on both sides of Hudson street, and the standing locomotive on a track north of the one on which the engine was moving which did the injury, and a large tree, standing on the west side of Hudson street, near the railroad, intercepted the sight of plaintiff’s son in approaching and crossing the track; and how far, when he stopped and looked both ways, and saw no train advancing in either direction, he was influenced in the belief that it •was safe to cross the street; and how far, also, he was induced to make such attempt by reason of the absence of any flagman at such crossing, were facts for the consideration of the jury on the question of the plaintiff’s vigilance and care to avoid any injury to himself from a collision with cars on said track. Evidence in respect to the custom of the defendant to keep a flagman stationed in the daytime at Hudson street crossing was given on both sides, without objection, and was before the jury, who were properly instructed by the judge, that there was no statutory requirement that a railroad company should keep a flagman at its crossing. The judge was not asked to give any other instruction to the jury on this subject, and there is no exception to his charge or refusal to charge in respect to this question.

In McGrath against this defendant (59 N. Y., 468), the evidence showing that the defendant had been accustomed to keep a flagman all the time at the crossing where the injury occurred, but that he was not there at the time of the accident,” was objected to at the trial as immaterial and incompetent, and the circuit judge admitted it as a circumstance bearing upon the plaintiff’s negligence, subject to the defendant’s exception.

The Court of Appeals held that the reception of this evidence, under the objection and exception, was error. But this does not imply that any error is committed at the Circuit in not excluding such evidence from the jury, when it has been received without objection, and no ruling of the court upon it has been asked or made. In such case it stands like all evidence before the jury for their consideration, for what it is worth.

The circumstances attending the accident in this case involve a variety of considerations proper for the decision of the jury. The young man who was driving the plaintiff’s horse was killed, and his story cannot be told. What he knew or saw can only be inferred from evidence drawn from a number of witnesses. He certainly stopped a short distance before he drove upon the railroad track and looked and listened, and saw nothing; to obstruct his crossing, when he started up his horse to drive over the track. He may have seen the locomotive which caused, his. death, and heard the bell upon it, as it was backing westward, but this would not deter him from the attempt to cross, because it was moving away from the street and the crossing. This locomotive and tender moved westward about 300 feet, and was then switched on to another track, and started immediately eastward, and came quickly in collision with the horse and wagon. As the engine reversed its course and came suddenly back toward Hudson street, the deceased, probably before he saw the change, had started to cross the track, and lhay have been so advanced upon the crossing as to have been incapable of controlling his horse, or saving himself when he was struck. A witness who saw the collision testified that just before it occurred he saw the horse on his hind feet, plunging and trying to get away, and looking like a runaway horse; and other witnesses testify that the horse, after he was on the track, became utterly uncontrollable.

The facts, we think, were not so clearly undisputed, in' respect to the questions upon which the defendant’s liability depended, as to make it the duty of the circuit judge to take the case from the jury. (Hackford v. N. Y. C. R. R. Co., 53 N. Y., 654; Haycroft v. The Lake Shore and South. Mich. R. R., 5 N. Y. Sup. Court Reports, 49; affirmed in Court of Appeals [not yet reported] February, 1876.)

The judgment should be affirmed.

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

Judgment and order affirmed.


text:
    JAMES R. CHAMBERLAIN, Appellant, v. THE ROCHESTER SEAMLESS PAPER VESSEL COMPANY, Respondent. GEORGE W. HARROLD, Appellant, v. THE SAME, Respondent.

      Corporations — voluntary dissolution of — Receiver appointed undeo' chapter 8, part 3, R. 8. —irregular if made bef ore return day of order to show cause — fling bond by — lien acquired between time of appointment and filing bond.

    Proceedings for the voluntary dissolution of a corporation (chap. 8, part 3 R. S.) are special and statutory, and although instituted in a court of general jurisdiction, must conform to the statute; hence, when a receiver was appointed before the return of the order to show cause, held, that such appointment was unauthorized, the court having no authority to appoint a receiver except in conformity with the statute.
    The statute pioviding that “ such receivers shall be vested with all the estate, real and personal, of such corporation, from the time of their having filed the security hereinbefore required,” held, that the title of the receiver did not vest until the filing of his bond, and that a creditor of the corporation might obtain a lien by judgment or attachment, on the assets of the corporation, between the appointment and the filing of the bond of the receiver.
    Appeal from an order of tlie Special Term, setting aside attachments and executions in the above entitled actions.

      W. F. Cogswell, for the appellant.

      W. E. Edmonds, for the respondent.
   E. Darwin Smith, J.:

The plaintiff’s suits were duly commenced in this court by summons and attachments, one on the 12th August, 1875, and the other on the fourteenth of the same month, and judgments were duly entered up in one on the second, and in the other on the fourth of September afterward, and executions were duly issued on said judgments on the same days respectively.

The attachments were applied for and issued, on the ground that the defendant had made an assignment of its property on the thirteenth day of said month of August.

These attachments and executions were set aside at Special Term, on the ground, we presume, that a receiver had been previously appointed by this court, of the property and effects of the defendant, in proceedings on its part, under the provisions of chapter 8, part 3 of the Revised Statutes, in respect to the voluntary dissolution of corporations. These proceedings are special and statutory, and, though instituted in a court of general jurisdiction, must doubtless conform to the statute.

The statute provides that, on the presentation of the petition of the trustees, or other officers having the management of the concerns of any corporation, applying for a decree dissolving such corporation, an order shall be entered requiring all persons interested to show cause, if any they have, why such corporation should not be dissolved, before some referee to be named in such order, and at some time and place therein specified, not less than three months from the date thereof. The proper order was made upon the presentation of such petition, appointing a referee, and fixing the time of the parties interested to show cause before him, on the twenty-fifth day of November, thereafter. On the coming in of the report of such referee, the court was authorized to appoint a receiver of the property and effects of the said corporation. The appointment of receiver before that time was, therefore, clearly irregular and unauthorized by the statute. The proceeding was riot an action between parties, and the court had no jurisdiction in such eases to appoint a receiver, except in conformity to the statute. The order for the appointment of the receiver was made on the 1st day of September, 1875, and the receiver filed his bond, as required by ‘the order of the court, on the seventh day of September, and the same was duly acknowledged and dated on that day. The statute (§§76, 77 [orig. §§ 65, 66],) provides for the appointment of a receiver, and section 67 or 78 provides that “such receivers shall be vested with all the estate, real and personal of such corporation, from the time of their having filed the security hereinbefore required.” The order appointing the receiver in this particular conformed to the statute, and provides that “ upon said receiver executing, acknowledging and filing with the clerk a bond, in the penalty of $3,000, in the usual form, said receiver should be vested with the rights and powers of receivers of this court.”

The statute in no way restricts the rights or powers of the creditors of the corporation in such case, from pursuing their ordinary legal remedies against the corporation before the appointment of. such receiver. On his appointment, and on his executing and filing his bond as therein directed, the property and assets of the corporation are vested in such receiver, and no lien can thereafter be acquired upon such property. Until the title vested, in such receiver, the rights of the creditors in this particular are not taken away by the statute, or affected by such proceedings, assuming such appointment to be regular and valid.

As such title did not vest in this case under the statute and order until the filing of the receiver’s bond, the appellant’s judgments and attachment remain valid, and the lien acquired under, and by virtue of the same, were not cut off by said appointment. (Kincaid v. Dwinelle, 59 N. Y., 548.)

The title of the receiver did not attach from the date of the order directing the appointment of receiver, as in actions, or where no direction or provision on the subject is made. The court could not overreach the provision of the statute in this particular, and the order expressly conformed to the statute.

The orders setting aside the plaintiff’s judgments and attachments were therefore erroneous, and should be reversed, with ten dollars costs of appeal in each case, with disbursements.

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

Order of Special Term reversed, with ten dollars costs of appeal and disbursements.


text:
    WILLIAM STACKUS, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      1laibroad crossing — signals—contributory negligence.

    In cases of injury resulting from a collision with a railroad train, it is contributory negligence on the part of the person injured, to attempt to cross the track without looking in both directions, although no signals are given by the approaching trains.

      When a traveler approaching a railroad crossing in a covered buggy, with the sides and back of the cover fastened down so that he could not see to his right or left without bending forward, stopped about twenty rods from the crossing and looked to the east in which direction he could see about fifty rods, and then started forward looking toward the'west, was injured by a train coming from the east, held, that he was guilty of contributory negligence in causing the accident, and should have been nonsuited even if the train gave no signal of its approach.
    Motion by the defendant to set aside a verdict in favor of the plaintiff, upon exceptions taken upon the trial and ordered to be heard in the first instance at General Term.

      D. Pratt, for the appellant.

      H. V. Howland, for the respondent.
   E. Darwin Smith, J.:

The exceptions taken by the defendant’s counsel to the denial by the circuit judge of his motion for a nonsuit, made at the close of the evidence in the cause, presents the chief question for our consideration. This motion was based upon two grounds; First, that the plaintiff had failed to show any negligence on the part of the defendants; second, that from the undisputed evidence in the cause, the plaintiff, the driver of the team, was guilty of negligence which contributed to the injury. So far as related to the defendant’s negligence there was evidence tending to show that no bell was rung, and the evidence in respect to that question was doubtless sufficiently conflicting to take the case to the jury. Assuming that there was therefore evidence sufficient to warrant the jury in finding that no bell was rung, according to the statute for the required distance, before the defendant’s train reached the crossing, the question remains whether the nonsuit should have been granted on the second ground above specified therefor on such motion. In Ernst v. The Hudson Railroad Company (24 How., 98, where an imperfect report of'the case, and opinion of the court appears), it was held that “ common prudence forbids the attempt of any person to cross the track of a railroad in constant use, without taking the precaution to look loth ways upon the track, and see and ascertain that a train is not approaching in either direction, and that the omission to do so was negligence per se, in view of the danger to be avoided and the fatal consequences involved in any accident resulting from' such omission, and that when such neglect clearly appeared at the trial, on the part of the plaintiff or of the person whose injury or death furnished the basis for the cause of action, it was the duty of the circuit judge to direct a nonsuit This doctrine was somewhat relaxed in the same case in 33 New York, 10, where it held as one of the head-notes of the case states, that “ the traveler was not bound to stop on the highway, or to look up and down an intersecting railway track before crossing, where there were no signals of an approaching train.” But the same doctrine is reasserted in substance in the same case in 39 New York, 68, where Judge Woodruff states the rule as follows: “A traveler approaching a railroad track is bound to use his eyes and ears, so far as there is opportunity, and when by such use of his senses the traveler might avoid danger, notwithstanding the neglect to give signals or warnings, his omission is concurring negligence.” That it is contributory negligence to attempt to cross a railroad track without looking in both directions, though no signals are given, has also been since asserted in the following, and many other cases: Gorton v. The Erie R. R. Co. (45 N. Y., 660); Davis v. The New York Central and Hudson R. R. Co. (47 id., 400); Levy v. The Great Western R. R. Co. (48 id., 675); Weber v. The N. Y. Central R. R. Co. (58 id., 451); McGrath v. N. Y. Central R. R. Co. (59 id., 471).

In tills case, upon the clear and undisputed evidence, it clearly appears that the plaintiff approached the defendant’s railroad crossing, where the accident occurred, riding in a top buggy wagon, and covered also with curtains at the side and back and these were all buttoned down. In sitting in'his seat he could not see to his right or left, without bending forward. The highway in which he was travelling ran nearly in the same direction with the railroad and gradually approached the track, and for the last ten rods was nearly parallel with it until it crossed it. As the plaintiff approached the railroad in the highway, travelling to the west, at the distance of about twenty rods from the crossing, he reached a point where the customary sign-board was erected over the high-, way and read the words: “ Bailroad crossing, look out for the ears.” He then stopped a little east of the sign-board, and looked oat to the east to see if there was any thing coming, and could then, looking east, see about fifty rods on the railroad track, but saw no cars approaching and then started up his horse forward, moving at the rate of about six miles an hour and looking west without looking eastwardly again, and so shut in by the covering of his buggy that he could not easily look in that direction. He traveled the distance from the place where he stopped, seemingly unconscious that while he was passing the intervening distance to the crossing a railroad train advancing at the' rate of thirty miles an hour, five times his rate of speed, would pass one hundred rods while he traveled twenty to the point of intersection of the highway and the railroad track, when he was overtaken by an advancing train from the east and injured. A more palpable case of negligence, it seems to me, can hardly be imagined.

The rule as now established and settled I think in this State, requiring a person approaching a railroad crossing to take the precaution to look both ways and see and ascertain that a train is not approaching before he crosses the track, is a rational rule. It does not require impossibilities; it simply requires him, as Judge Woodruff says, to use his eyes and his ears, so far as there is opportunity.” Where a man approaches a railroad track with intent to cross the same, and before he drives or puts his foot upon the track, he can, by the use of his eyes readily see whether it is safe to attempt to cross such track, there is no excuse, ordinarily, I should conceive, for his omission so to use his eyes and avoid the danger and injury his omission to do so may involve. The courts now hold that it is a clear legal duty for a man thus to use his eyes and his ears before he puts his life in peril, and when it clearly appears that if he had done so he would have escaped injury, his omission so to do is clear contributory negligence, and the court should so declare and nonsuit the plaintiff. (Ernst v. N. Y. C. R. R., 39 N. Y., 68; Gorton v. Erie R. R. Co., 45 id., 660; McCall v. The N. Y. Central and H. R. R. Co., 54 id., 642: Davis v. The N. Y. Central and H. R. R. Co., 47 id., 400; Weber v. The N. Y. Central and H. R. R. Co., 58 id., 455; McGrath v. The N. Y. Central and H. R. R. Co., 59 id., 468.) To refuse to nonsuit in such a case is error, for the reason besides it gives the apparent sanction of the court to the rendition of a verdict, which the court would be bound to set aside.

It is quite clear, we think, that the plaintiff’s own negligence contributed to the injury he received, and that he has no cause of action for that reason, and should have been nonsuited.

A new trial should therefore be granted, with costs to abide the event.

New trial granted.

Present — -Mullin, P. J., Smith and Noxon, JJ.

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


author: Noxon, J.:

text:
    JOHN H. FORD, Respondent, v. RICHARD N. JOHNSTON and others, Appellants.

      Fraudulent conveyance — husband and wife — Equitable claim by fraudulent grantee for money advanced.

    A conveyance made, pending an action of tort against the grantor, with intent to defeat the collection of any judgment that might be recovered against the grantor, is fraudulent and void.
    J. and wife lived together on four different parcels of land. Towards the purchase-price of the first, §450, the wife handed to her husband, to he paid, and there was paid thereon, §150. The different pieces were successively sold, the husband, in some instances, giving his bond and mortgage to secure part of the purchase money, and the last parcel, at the end of twenty years, was and is worth §8,000, and this increase resulted from the payment, by the husband, of his bonds and mortgages given by him upon the purchase of the several parcels of land, and in buildings and other structures and improvements from time to time made by him. The titles to the several parcels of land were taken in the name of J., though the wife claimed that the same should have been taken in her name, and the husband had promised that it should he. Afler the cause of action in suit accrued, the last parcel was conveyed to the wife. Held, that between husband and wife and the husband and his creditors, the land was legally and equitably his property, subject to the equitable claim of the wife for her money used in the purchase of the property.
    Appeal from a judgment in favor of the plaintiff and against the defendants, entered upon the decision of a justice of this court at the Chautauqua county Special Term, in September, 1813.

      The defendants Richard N. Johnston and Cordelia Johnston are husband and wife, and were married prior to 1847 and until that time possessed no real or personal property. In that year the wife received from the estate of her father a small amount of personal property, consisting of a horse, wagon and harness, valued at $100. This property was used for a short time by and in the business of the husband, and then sold by the husband for about $100. The father of the husband in said year, took twenty-five dollars of this money and purchased by contract in his name, thirty-five acres of land and paid upon the purchase-price the said twenty-five dollars; the balance of the $100 was used in the purchase of a cow and cook stove for the use of the family. The husband and wife went into possession of the land and resided there until the same was sold by the husband’s father in 1849. No other payment was made by the father upon the contract, and upon the sale he realized $150. This sum the father declared to be the property of the wife and kept it for her, separate from his other property. In 1849 the husband and wife negotiated for another tract of land of twenty acres for $450. The father then paid to the wife the $150, which she delivered to her husband to be paid upon the land, and which was paid by him. lie received a deed of the same, giving back a bond and mortgage for the payment of the balance of the purchase-money. At the time of the purchase it was arranged between the husband and wife that this piece of land should be and the same was, by an instrument in writing, declared a homestead under the laws of the State, and such writing was recorded as such. The husband occupied and .improved this land, built thereon a house and barn, paid up the bond and mortgage, the said wife living with him at the time, managing and taking care of the family. In 1856 the twenty acres were sold and conveyed for $1,100; and in the winter of 1S57 fifty acres of land was purchased for $2,100; and the moneys realized on the sale of the twenty acres, except $100, part thereof, was paid on the purchase. The $100 was invested in cows, which were put on this farm. "When the deed for this farm was given, the question arose between the husband and wife as to who should take title. She claiiped and insisted the property was her own, he claimed the title should be vested in him, that a person in business could do nothing without a title to property. Without any arrangement made between them, the deed was given to the husband, vesting in him the title, and he gave back to the grantor a bond and mortgage upon the land as security for the balance of the purchase money. In 1863, the fifty acres was sold and conveyed, and about $1,600 realized on the sale and paid to the husband, who put the same into his wife’s hands for safe-keeping, and she kept the same until March, 1864. In March, 1864, 100 acres of other lands were purchased, upon which was paid $1,500 of the $1,600 so left in the wife’s hands, and a conveyance of the same was executed to the husband. This land was called the Barnes land, and no understanding was made that the same should be conveyed to the wife. The husband gave his bond and mortgage on the premises to secure the balance of the purchase-money. The 100 acres so purchased was sold in 1867, and about $2,700 in cash realized upon the sale, and in November of the same year, the land and premises described in the complaint, consisting of about fifty acres, were purchased of one Dean for $2,200.50. Upon this purchase the wife insisted of her husband that the deed should be given to her, and he promised her it should be. The deed, however, when executed by Dean and wife, was executed to the husband, and title was vested in him, and so remained until August 21, 1869, on which day the husband conveyed the same to his son, who, on the same day, conveyed the same to his own mother. The balance realized on the sale of the Barnes farm, being about $500, was, after the last conveyances were made, laid out and expended on the last named premises. Soon after the giving of the deed by Dean to Richard N. Johnston, his wife, learning that fact, demanded of her husband, and continued to demand that the title be vested in her, and the husband promised her it should be done. At the time when the deed was made by defendant Richard N. to his son, and from the son to the wife of Richard N., the same was made without any consideration then paid, and for the purpose of vesting the title in the wife in pursuance of his promise to her that.it should be done as aforesaid. The plaintiff recovered a judgment against the defendant Richard N. on the 30th day of May, 1870, for $297.40 in this court, which was rendered for damages and costs ir an action for an assault and batterj', committed by the defendant upon the plaintiff shortly prior to August'19, 1869, and about twelve days 'prior to the conveyance to said defendant Cordelia Johnston, aforesaid. On the thirtieth May, aforesaid, execution was issued upon said judgment to the sheriff of Chautauqua county, where said defendant resided, and where said judgment was docketed, and where said lands were situate, against the property of said Richard N., and the same was returned wholly unsatisfied, and the judgment is and was unpaid at the time of the bringing of this action, on the 14th April, 1873. The action was brought to set aside the said conveyance so made on the 31st day of August,,1869, and to obtain the judgment of the court declaring said judgment a lien upon said lands, and for such other relief as the court should deem proper to grant. Upon the trial of the action the facts as above stated were substantially found. The court also found that, at the time of the conveyance to Cordelia Johnston, she had a just and equitable claim against her husband^ estate of $150, and interest from the spring of 1849, and for no greater amount, and that beyond the payment and discharge of such claim, the deed to her was without just consideration, and was voluntary, and was made by him with the view and for the purpose of hindering, delaying, cheating and defrauding the plaintiff in the collection o-f his cause of action against the said Richard N., then in suit and undetermined. That after the conveyance Richard N. had not sufficient means and property to pay his debts and demands against him then existing, and that the value of the said lands so deeded to said Cordelia, was about $3,000. That said Cordelia had all her married life lived with her husband^ been industrious, worked hard and managed prudently to accumulate and increase the value of the property now represented in the lands in question, and that Richard N. and his wife now live upon and occupy the said premises. That the amount of the equitable claim of said Cordelia against the estate of her husband was $412.50.
    . As a conclusion of law, the court decided that the plaintiff was entitled to judgment declaring the deeds executed by Richard N. to bis son, and from his son to said Cordelia, in fact voluntary and void, and executed by Richard N. to defraud the plaintiff.; and that Richard N. and wife convey the lands described in the com plaint to a referee to carry out the judgment, and that the referee sell the lands according to the rules and practice of the court, and out of the avails, after deducting his costs and charges, pay the defendant Cordelia, $412.50, and interest from September 12,1873, and out of the balance, if any there be, pay the plaintiff his judgment and costs to be taxed, and the remainder, if any there be, to the defendant Cordelia Johnston, and that upon the sale either party to the action may become purchasers, and that a deed to the purchaser be executed by the referee, according to the usual practice.
    Judgment was entered in pursuance of'the decision of the court.

      Walter L. Sessions, for the respondent.

      Morris .c& Russel, for the appellants.
   Noxon, J.:

The defendants in this case excepted generally to the conclusions of law found by the court. They also excepted to that part of the decision holding that Cordelia Johnston had a just and equitable claim against her husband’s estate to the extent of $150, and interest from the spring of 1849, and that beyond the payment and discharge of said claim, the deed by the defendant Richard N. Johnston was without just consideration, and was voluntary and made with a view and for the purpose of defrauding the plaintiff in the collection of his cause of action. They also excepted to the decision holding that the equitable claim of said Cordelia against her husband’s estate at the time of trial, amounted to $412.50. In the consideration of the questions involved in the case, we are led to consider first the situation of the plaintiff and his right to maintain the action to set aside the deeds for fraud. Tne plaintiff prosecuted the defendant Richard N. to recover damages in an action for assault and battery. The cause of action accrued, and suit was brought prior to the conveyance by Richard N. The judgment was recovered after the conveyance made by Richard N. to his son, and from the son to the defendant Cordelia. The plaintiff was, therefore, a subsequent creditor, and was bound within the authority of Seward v. Jackson (8 Cow., 437); Dygert v Remerschnider (32 N. Y., 649), and many other leading cases, to show actual fraud, to entitle him to a decree setting aside the conveyance. The court did find as a question of fact, that in making the deed, whereby the title became ultimately vested in the wife, the husband made such conveyance with the intent of defrauding the plaintiff, and that the deed was without just consideration and voluntary, except as to an equitable claim which the wife had against her husband’s estate to a small amount, for moneys belonging to her, and which with its accumulations of interest, constituted a part of the purchase-money of the lands in question, and in equity belonged to the wife. The deeds would not be set aside as to existing or subsequent creditors upon the ground they were voluntary and without consideration, because there was in part a consideration, and as to such part they were not voluntary; but when, as in this case it was made to appear that the property conveyed was of the value of $3,000, and that there was an interest in the property of over $2,500 belonging to the husband, and that the husband had no means or property to pay his debts and demands then existing against him, and that he had been sued by the plaintiff but a few days prior to conveying the property, that he had declared that he had got his property all right, that he had deeded it to his wife, and that plaintiff could not collect any thing of him, and that his wife never, in fact, paid but $150, I say when all this is made to appear in the evidence, and the fact is passed upon by the court declaring that the deeds were made with the actual intent to defraud this plaintiff; of his claim, how can the transaction be upheld as otherwise than fraudulent and void ? The conveyance was made pending an action of tort against the grantor with intent to defeat a recovery, and in such cases the conveyance has been held fraudulent and void. (Jackson v. Myers, 18 Johns., 425 ; Wilcox v. Fitch, 20 id., 472 ; King v. Wilcox, 11 Paige, 589.)

Another important question, involved in the case, relates to the rights of the husband and wife as between themselves. I.t is claimed by the appellant that the facts proved establish an equitable title to the premises in the wife; and that she was the owner of the premises prior to the execution of the deed to her; and that her husband had a mere naked title without any interest in the premises; and that when she received the deed the legal and equitable titles were united, and that, therefore, at no time was the same liable for the husband’s debts. The case of Garrity v. Haynes (53 Barb., 596), cited in support of this claim, hardly supports the position taken. In that case the wife purchased a farm and agreed to pay for it $1,600; she paid down, of her own money, $600; by mistake the deed was made to her husband. The balance of the purchase-money was secured by mortgage executed by the husband and wife. The husband never paid any part of the consideration for the farm. The deed bore date March, 1866; and, in November, 1866, the sheriff, by virtue of an execution against the husband, levied upon certain personal property on the farm. After the levy, and before the sale, the wife first learned of the mistake in the deed; and, after levy and oefore sale, the mistake in the deed was rectified .by a conveyance from the husband to a third person, who conveyed to the wife; and these facts were allowed in evidence in an action by the wife against the sheriff for taking her personal property by virtue of the execution. This evidence was allowed, to show her title to the farm and the personalty so levied upon. The case seems to have very little, if any, bearing upon the question involved in this case. Here the wife’s money, to the extent of $150, was paid by the husband on a purchase of a parcel of land conveyed to the husband in 1819; they both negotiated the purchase at the price of $150, and the husband executed back his mortgage to the grantor for $300, the balance of the purchase-money. It nowhere appears that this purchase was made for the wife, and it is of no importance that the premises were declared a homestead as provided by statute.

The premises were occupied and improved by the husband, upon which he built a small house and barn, and paid up the bond and mortgage, his wife living with him, managing and taking care of the family. They occupied the premises until 1856, and then sold the same for $1,100, and thereafter, sales and purchases were made on three several occasions, of other lands, until 1861, when the land described in the complaint was purchased. The conveyances on each occasion of purchase were made to the husband, who made part payment of the purchase-price .from the avails of sales, and gave liis bond and mortgage to secure the balance. The only money belonging to the wife, which was ever invested in the land was the said amount of $150. That on one or more occasions the wife claimed she should have title, and the husband promised, on one or more occasions, to have the title vested in her, and she finally received a deed, in August, 1869, which deed was given in pursuance of the promise he had made her. Thus, during a period of about twenty years, Richard N. Johnston and his wife have lived together on four different parcels of land, the purchase-price of the first being $450, of which the separate property of the wife to the amount of $150, was handed by her to the husband to be paid and was paid on said first parcel, and the last parcel, at the end of twenty years, was and is worth $3,000, and this increase in property has resulted from the payment, by the husband, of his bonds and mortgages given by him upon the purchase of several parcels of land, and in buildings and other structures and improvements, from time to time, made by him thereon.

Upon every principle of equity and law, and the adjudication of the courts relating to transactions between husband and wife, the lands in question, as between the husband and wife and between the husband and his creditors, at the time the conveyances were made to place the title in the wife, were legally and equitably his property. It is true, as found by the court, that the wife had an equitable claim against the estate of her husband for her moneys used in the purchase of this property, and that claim had been carefully and equitably provided for in the decree, and she has no reason to complain, or grounds of appeal from the decision ; nor has the husband cause to complain, that twenty years of his labor and services and moneys paid upon the lands he has bought and improved, has been by the decree of the court, charged, first, with the equitable claim of his wife, and second, with the legal claim of a creditor, for wrongs inflicted upon him, and third and last, in protecting the wife in the avails of the balance of the estate, which he voluntarily placed in her hands for her support and maintenance.

Upon the ground that the property in question was conveyed for the purpose of defrauding the plaintiff, and that the same was in part, paid for by the moneys, labor and improvements of the husband, and partly Avith the wife’s funds, the decree separating and declaring the interest of the parties in the land, and a conveyance to a receiver, directing a sale and a distribution of the avails on principles of equity, should not be disturbed.

I think the judgment should be affirmed with co’sts.

Mullin, P. J., and Smith, J., concurred.

Judgment affirmed with costs.