text:
    George L. Wiltsie, Survivor, etc., Resp’t, v. The Village of Greenbush, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed, November, 1886.)

    Pleadings—Allegations in complaint not denied by answer must be DEEMED ADMITTED.
    In an action to recover money alleged to be due for work done under a contract, the defendant urged against the recovery that the plaintiff had failed to prove the contract counted on in the complaint. Held, that the contract counted on in the complaint not being denied by the answer must also be deemed to be an admission that the contract was one binding on the parties to it.

      John B. O’Malley, for app’lt; Smith, Fursman & Cowen, for resp’t.
   Bockes, J.

This is an appeal by the defendant from a judgment directed by a referee. The action was on a contract for executing, filling and grading Partition street in the defendant’s village. The plaintiff was, by the referee awarded judgment for $4,428.96, with interest from November 1, 1873, deducting a payment of $1,000 made on the contract, in all $6,500 92, and costs of suit.

It appears that the original plaintiffs who were co-partners in business under the firm name of G. L. Wiltsie & Co., performed the work and labor stipulated for in the contract made between them and the defendant; and it is not disputed that they have not been paid therefor, excepting the sum of $1,000 in April, 1875, audited and ordered to be paid them by the defendant.

The defense urged against the recovery is that the plaintiff failed to prove the contract counted on in the complaint, and there averred to have been made and entered into between the firm of G. L. Wiltsie & Co., and the defendant; that is, failed to prove that such contract was valid and binding on the defendant. This objection must be held to be unavailing, inasmuch as the contract counted on in the complaint is not denied in the defendant’s answer, hence must be deemed admitted on the pleadings and the admission must also be deemed to be an admission that the contract was one binding on the parties to it. Marston v. Swett, 66 N. Y., 206; Schreyer v. The Mayor, 39 N. Y. Super. Ct. R., 1. In the former case it was said in substance, and effect, in the opinion, that if the contract alleged in a complaint be denied or its invalidity set up as a defense in the answer, then it becomes necessary on the trial to establish it as a valid contract; but not so in case there is no denial of the contract in the answer, and no averment of its invalidity. The second case cited is to the same effect. It is there laid down that an admission as here, precludes the defendant from insisting, in the absence of a formal plea to that effect, that the contract as made is an illegal one.

It only remained for the plaintiff to prove performance of the work contracted to be done under the agreement and the amount of it in value, estimated according to its terms, to entitle him to a recovery. This evidence was supplied and no question is raised on this appeal as to the disposition of the case by the referee in this regard.

An objection is now urged against the allowance of interest by the referee; but there is no exception in the case, or suggestions to the referee in that respect, under which that question can be here considered. McMahon v. The N. Y. and E. R. R. Co., 20 N. Y., 470.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    Peter Pulver et al., Resp’ts, v. Samuel S. Skinner, App’lt; J. Wright Olmstead, Resp’t, v. Same, App’lt; Erastus Darling et al., Resp’ts, v. Same, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    Contract — Action on — By persons not parties to the instrument FOR WHOSE BENEFIT THE CONTRACT WAS MADE.
    W V. and B., in 1S82, conveyed to R. C., real and personal property in consideration whereof he assumed and agreed-to pay certain of their debts and save them harmless therefrom. Upon the death of R. C. thereafter, J. C. was appointed his administrator, and an agreement was entered into , between him and this defendant expressing the intention that property conveyed as before stated should be transferred to this defendant, and that he should pay the indebtedness assumed by that conveyance. Subsequently the widow of R. C., and ail his heirs except a minor, conveyed as agreed, and covenanted that the minor should convey, for a valuable consideration, and a bond executed by this defendant. In consideration thereof he executed a bond to J. C., administrator of the estate of R. C„ and attorney, in fact, of the widow and heirs of R. C. This recited and specified certain claims existing against R. C., and that the widow and heirs had conveyed to the obligor certain real estate on the agreement that this defendant should pay the claims, and save the estate harmless. The condition of the bond was that the obligor should pay the claims or cause them to be paid, and save the estate harmless, and within four months deliver to the obligee receipts for such payments. The bond further provides that for the aforesaid consideration lie agreed with the owners of the claims to pay all that was justly due them, not exceeding the amounts before set forth. The heir of R. C., who, at the time of the conveyance by the widow and other heirs, was a minor, subsequently conveyed his interest. In an action brought by the creditors named in the bond to recover their claim: Held, that the bond was not one of mere indemnity to the obligee, but for actual payment to the creditors, and that although not actual parties to the instrument it was but equitable that the creditors should be allowed to have the benefit of the contract.
    Appeal from a judgment entered at the special term of Saratoga county.
    William and Benjamin Van Vrankin in 1882, conveyed real and personal property to Eobert Clements, in consideration whereof he assumed and agreed to pay certain debts of theirs, and save them harmless therefrom. Upon the death of Eobert Clements, thereafter, John Clements was appointed administrator, and entered into an agreement with Samuel S. Skinner, this defendant described therein as executor, but of no person. This agreement recited the conveyance to Eobert Clements, and the assumption by him of the debts of his grantors, and that the property, both real and personal, should be transferred to Skinner, as executor, upon the assumption by him of the said debts, and further contained an agreement that John Clements would convey the property, or cause it to be conveyed, and that Skinner would pay the indebtedness. This was by the terms of the agreement, to be done within nine months. Thereafter, within that time, and on April 12, 1884, the widow of Eobert Clements, and all of his heirs except one, at that time a minor, conveyed the real estate to Samuel S. Skinner, as executer of Peter Skinner, deceased, in consideration of §11,000 and a bond executed by him, and they covenanted that the minor should convey, which he subsequently did. On that same day Skinner, in consideration thereof, executed a bond in the penal sum of $6,080.28 to John Clements, administrator of Robert Clements deceased, and as attorney, in fact, of the widow and heirs at law.
    It is recited in the bond that there are certain claims against the estate of Robert Clements, and they are specified therein; and that the widow and heirs have conveyed to the obligor certain real estate on the express agreement, as a part of the consideration that he would pay those claims and save the estate harmless. The bond is conditioned that the obligor shall pay, or cause to be paid, the aforesaid claims and save the estate harmless, and within four months deliver receipts for the payments to the obligee; it further says that for the consideration aforesaid the party of the first part agrees with the owners of the claims to pay all that is justly due them, not exceeding the aforesaid amounts.
    These actions are brought by the creditors named in the bond to recover their claims, the payment of which was thereby assumed by the obligor in the bond.

      Jacob W. Clute and L. Varney, for the app’lt; James Van Voast, for the resp’t.
   Learned, P. J.

The first point is, that the first action is by Wait, Pulver & Rockwell, while the creditors named in the bond were Wait & Pulver. But evidence was given tending to show that the claim in question was contracted in dealings under the name of Wait & Pulver. The amount of the claim is that stated in the bond, and the claim itself is traced from its origin in an indebtedness of William and Benjamin Van Vranken. The obligation assumed by defendant was not that of a mere guarantor. He was to pay the debts, and as between him and the estate of Robert Clements he became principal debtor. It was enough to show that this was one of the claims he became liable to pay.

Some stress was laid by the defendant on the fact that the conveyance was executed to him as executor. But that is immaterial. He chose to take the conveyance in that form. Even if it had been made, at his request, to a third party, still the consideration for his bond would have been sufficient. Nor is it material that the minor heir did not convey at the time when the bond was given. The defendant accepted the covenant of the other heirs, and that covenant has been performed.

The next, and the principal point, is whether this is a case in which these creditors can sue upon an agreement to which they are not actual parties.

We do not think it necessary to go over all the cases bearing on this point to show the distinctions which run through them. It is enough to call attention to the position of the parties. The widow and heirs of Robert Clement held this property. Robert Clement, in his life-time, was personally bound to pay these Van Vranken debts, and the property was probably liable therefor also in equity. At any rate, on his death this property became hable to pay his debts. It is not necessary to say that the debts were strictly a hen, but they could through proper proceedings be enforced out of the property. At the same time the widow and heirs were not personally hable for the debts.

Under this condition of affairs they transfer this property to the defendant, on his express agreement, not merely to appropriate the same to these debts, but himself to pay the debts and to save the estate harmless. For this he has received and retains an ample consideration. If the obligee had been liable for the debts the case would have been plainly within Barlow v. Myers (64 N. Y., 41). But it is urged that, as the widow and heirs were not personally liable, Skinner is not by the bond hable to the creditors, under the rule laid down in Vrooman v. Turner (69 N. Y., 280). In the opinion given in that case, the right of the third party to have an action upon the promise is said to depend first, on the intent of the promisee to secure some benefit to the third party, and second, on some privity between the two, the promisee and the third party, and some obhgation or duty owing from the former to the latter.

There can be no question, in this case, of the intent of the promisee to secure a benefit to these creditors. The last clause of the bond is an express agreement of the defendant, “to and with the owners of these claims, to pay all that is justly due them.” The bond was not one of mere indemnity to the obhgee. It was for actual payment to the creditors.

We must then inquire whether there was a privity between them, and an obhgation or duty owing from the promisee to the creditors.

As administrator and as widow and heirs of Robert Clement, the parties named in the bond were in privity with the creditors of Robert Clements. There was not, it is true, a personal obligation on them to pay the debt. But we think that there was some obhgation or duty resting on the administrator and on the heirs in respect to the creditors. It was the duty of the administrator, in default of sufficient personal property, to cause the'real estate to be applied to the debts. And the heirs themselves might be sued by the creditors in respect to any land of the deceased in their possession, and might be made personally accountable for any which they had sold. Code, § 1843, et seq.

Thus, heirs do not stand in a position simply like that of the owner of an equity of redemption who is not liable for the mortgage debt. He clearly has no duty towards the mortgagee. If he sells the property, he does not become liable for the debt. The hen is fixed, and he cannot disturb it. But the heir who sells may, in some cases, become personally hable. It may then be justly said that the heir is under some obligation or duty to the creditor of the deceased, within the principle applicable to these cases.

When, therefore, in performance of that obhgation, the heirs have thus provided for the payment of these debts, it is equitable that the creditors should be allowed to have the benefit of that arrangement, although not actually parties to the instrument.

Here the heirs have made a specific appropriation of this land as a consideration for the payment of these debts. And the principle that a third party may have an action on a contract made for his benefit could seldom have a more beneficial application.

The judgment should be affirmed, with costs.

Bocees and Landon, JJ., concur.


author: Learned, P., J.

text:
    Patrick Prendergrast, Resp’t, v. The Village of Schaghticoke, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)

    Nuisance—Expenses for suppression and removal, under Laws 1850, chap. 334, as amended by Laws 1867, and Laws 1868, a charge upon the premises and occupant.
    Laws 1850, chap. 334, provides for the appointment of boards of health; section 3, subd. 3 provides that they may make rules concerning the suppression of nuisances; subd. 8 authorizes them to employ persons to carry into effect such regulations, and section 5 says that all their expenses, except their compensation, shall be a county charge. Laws 1854, chap. 169, amended section 5 and made all over a certain amount a county charge. This amendment was repealed by Laws 1868, chap. 761, and section 5 again amended by a provision that all expenses incurred should be a charge upon the respective cities, villages and towns. Laws 1867, chap. 790, amended section 3, subd. 6, gave the board power to make orders in special cases not of general application. A person violating the regulations of the hoard was by section 4 of the original act made guilty of a misdemeanor. This was also amended by Laws 1867, chap. 790, so as to authorize the board when its special orders, duly served or posted, were not complied with, to enter the premises and suppress or remove the nuisance, and the expense of so doing was made a charge upon the occupant or occupants of the premises, which might be sued for and recovered by the board in the name of such hoard. Held, that the expense of suppressing and removing a nuisance is governed by section 4 of the original act as amended by the act of 1867. That it is an expense to be paid by the occupant or charged upon the premises. That the act of 1868, amending section 5 of the original act, did not amend section 4 as amended in 1867, but that the expenses meant in section 5 always were and now are such as have not been specially provided for by section 4, as amended or otherwise.
    Appeal from a judgment entered upon a verdict directed by the court at the Rensselaer county circuit.
    This action was brought for work alleged to have been performed by the plaintiff, in suppressing and removing a nuisance, under the direction of the board of health of the village of Schaghticoke.

      Henry A. Merritt, for app’lt; Edgar L. Fursman, for res’pt.
   Learned, P., J.

Chapter 354, Laws of 1850, provides for appointment of boards of health. Section 3 defines their powers. In subdivision 3 it is said they may make regulations concerning ‘ ‘ the suppression and removal of nuisances. Subdivision 8 authorizes them to employ persons to carry into effect their regulations. Section 5 says that all expenses (except their compensation), shall be a county charge. Section 5 was modified by chapter 169, Laws of 1854, making all over a certain amount chargeable to the towns. This was repealed by chapter 761, Laws of 1868, hereafter mentioned.

Chapter 790, Laws of 1867, very largely amended sections 3 and 4 of the first-named act, extending and amplifying the powers of the boards. By subdivision 6 of section 3, thus amended, the board might make orders in special or individual cases not of general application.

Section 4 of the original act only made a person guilty of a misdemeanor who violated their regulations. As amended, it authorized the board, when its special orders, duly served or posted, were not complied with, to enter the premises and suppress or remove the nuisance. “And the expense thereof shall be a charge upon the occupant, or any or all the occupants of said premises, and may be sued for and recovered, with costs, by said board in the name of such board.” Further provision is made for the sale of the premises where the judgment is not collected.

Now it must be observed that, notwithstanding this amendment to sections 3.and 4, section 5 remained undisturbed. That is the section which declared that the expenses of the board should be a charge partly on the counties and partly on the towns. Therefore, it appears that section 5 was in harmony with section 4, as thus amended. So that the expenses of the board, referred to in section 5 (then slightly amended by the law of 1854, above-mentioned), were something different from the expenses of removing or suppressing a nuisance. This latter expense was expressly provided for in great- detail by section 4, as amended by the aforesaid law of 1867. Then came chapter 761, Laws of 1868, which repealed the aforesaid law of 1854 and again amended section 5 of the original law, saying that “all expenses incurred” (using the same language as in the original section) should be a charge on the respective cities, villages and towns.

Now it is claimed that the effect of the amendment of the original section 5 (a section which in varying forms has been in force since the passage of the original act) is to take away the provisions of section 4, as amended by the law of 1867, aforesaid. It seems to us that this is not a proper construction. Section 5 of the original act, in one form or another, has been in force all the time. It was in force when the law of 1867 amended section 4. At that time it provided that the expenses incurred, to the amount of $300, should be a charge on the county, above that on the town.

When, therefore, leaving that section undisturbed, the act of 1867 provided specially for the case of expenses in entering into premises after notice, and suppressing or removing a nuisance; giving a remedy by action and a lien on the premises, it is plain that this was an expense not intended in the general provisions of section 5, then in force. The amendment of section 5, by the act of 1868, does not change this reasoning. The amended section 4 still remains, with its special provisions for the special case. The occupant and the premises still remain as much liable as they ever were. If the act of 1868 bad been an entirely new enactment there would have been room for the argument that it was intended to change the provisions of section 4 in respect to the payment of expense incurred pursuant thereto. But it is only a modification of an original section.

It may be urged that the words of the act of 1868 are “all expenses. ” But such were the words of the original 'section 5 in the act of 1850 (chap. 324), and neither the omission of the word “all” in the act of 1854, nor its insertion in the act of 1868, is material, because, while section 5, amended in 1"854, required that the counties and towns should pay the expenses incurred by the boards of health, the act of 1867 so amended section 4 as to make the premises and the occupant liable in the special case therein provided. Thus such expense was evidently excepted from the general provision of section 5, and the act of 1868 only changed the liability for those general expenses, so that a part thereof should no longer be chargeable on the county. But “ expenses incurred ” still meant what the same words meant when the act of 1867 had been passed. Prior to the act of 1867 there was no provision for imposing any expense on a person or on property. The only compulsory power was that disobedience was a misdemeanor. The act of 1867 changed this, and gave the board power to collect this expense, in question from the person or property properly chargeable. There has been nothing intended to abandon that principle.

The defendants insist also that the power to remove and abate nuisances is by the village charter given to the trustees. Chapter 512, Laws 1867, tit. 3, § 3, subd. 22, p. 1334. The corporate name was changed to Schaghticoke. Laws 1881, chap. 75.

That subdivision makes the expense a lien on the lot. The defendants also cite section 3 of miscellaneous provisions of said act, page 1351, as showing that the village is forbidden to contract any debt or liability, except as therein limited.

In the view we have taken, it is unnecessary to inquire as to the effect of the special provisions of this charter. The question seems to be settled in People ex rel. Boltzer v. Daly (44 Sup. Ct., 37 Hun, 461).

In accordance with the provisions of section 4, as amended by the act of 1867, above mentioned, the board of health, in October, 1881, passed a resolution that certain parties be notified to remove a certain alleged nuisance, and that if this was not done the board would remove it and charge expenses to the parties. Notice was served on those parties and they did not remove the alleged nuisance.

November 1, 1881, the board accepted a bid of plaintiff for building a culvert to drain a swamp or marsh. This swamp or marsh was the alleged nuisance. December 17, 1881, the board of health audited plaintiff’s bill, and a bill of one Hasbrouck, amounting in all to $523.12. They notified the trustees December 20, 1881, and requested them to levy a tax for $523.12.

Subsequently, they served another notice on the trustees with plaintiff’s bill attached, amounting to $613.12, and requested the trustees to levy a tax therefor. The original contract with plaintiff seems to have been for $480. Other work was done by him under the direction of the president of the board, worth $120.

Now, without examining several questions that are made, viz.: whether the swamp was a nuisance; whether the board was properly constituted, and the like, it appears to us that this expense of suppressing and removing a nuisance is governed by the aforesaid section 4, as amended by the act of 1867. It is an expense to be paid by the occupant or charged upon the premises.

Such was the view of this board when they served their notice of October upon the parties. This is a just view. The suppression of a nuisance should be at the expense of the person who maintains it, and not at the expense of the village.

We think that the act of 1868, which amended section 5, did not affect the provisions of section 4, as amended in 1867. But that the expenses meant in section 5, have always been, and are such as have not been specially provided for by section 4, as amended, or otherwise.

In construing these acts, we must treat the amendments as if they were incorporated into the statute, and must read the statute as a whole.

Beading the act of 1850, with sections 3, 4 and 5 as they now stand, we have the special provision of section 4 for the expense of suppression of nuisances, making such expense a liability of the occupant and a charge on the premises.

Then following we have section 5 as to expenses incurred by the boards to be charged on the villages, etc. We must consider that this section is qualified by that which precedes and applies to expenses not provided for by section 4.

This judgment should be reversed, new trial granted, ■costs to abide event.

Bockes and Landon, JJ., concur.


author: Bockes, J.

text:
    The National Tradesman’s Bank, Resp’t, v. Margaret Wetmore, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed January 4, 1887.)

    1. Creditors’ bill—What is requisite in order to hate standing in COURT.
    The plaintiff a national bank, located in New Haven, Conn., discounted for one Wetmore, a resident of that state, certain promissory notes. At the time of the transaction W. was the owner of lands situated in the state of New York, and subsequently deeded them to another, wlio, on the same day, deeded them to this defendant, the wife of W. These conveyances were without consideration. Thereafter W. made a general assignment for the benefit of creditors, which by the laws of Connecticut did not convey any title or interest in lands without that state. Actions were brought against W. on the notes as each fell due, and by this plaintiff in Connecticut upon an over draft. During the pendency of the action, and previous to the recovery of judgment in any one, W. died intestate, and an administrator was appointed. The plaintiff took proceedings to revive the actions against the administrator, who obtained an order that the estate should be settled as an insolvent estate. Except for certain classes of debts which do not include these, no judgment can be obtained against the representative of an insolvent estáte in process of settlement, and judgment was rendered dismissing these actions. Held, that the plaintiff was simply a creditor at large of the deceased husband of the defendant, and that should the title to the real estate conveyed by him be adjudged to remain in him at the time of his death, still the plaintiff would have no lien on the property. That the plaintiff therefore, had no standing in court which would enable him to have the transfer of the land adjudged fraudulent and void, and the payment of its claims against W. decreed to be made therefrom.

      3. Same—Judgment and execution prerequisites, sometimes also return OF EXECUTION WHOLLY OR PARTLY UNSATISFIED.

      Held, that in the case of a creditors’ bill there must be judgment and execution, and under some circumstances a return of execution, wholly or partly unsatisfied to give the creditor a standing in court to demand and have a removal of a fraudulent transfer by the debtor of his property.
    3. Same—3 R. S„ 173, 174, § 38-Code Civ. Pro., §§ lb71, 1873—This rule INDEPENDENT OF STATUTE.

      Held, that this necessity grew out of the requirements of 3 R. S., 173, 174, £ 38, and Code Civ. Pro., §§ 1871, 1873, hut that the same rule obtained in all such cases irrespective of statutory provision. That the necessity of compliance with this rule was not obviated by showing that all attempts by other proceedings to obtain satisfaction of claims would be unavailing.
    4. Same—These conditions must be complied with.

      Held, that a presentation of the claims to commissioners in insolvency, appointed upon the estate of W., and their allowance of those claims, and plaintiff’s inability to realize anything therefrom, was not in effect equivalent to a judgment obtained by the plaintiff against it.
    Appeal from a judgment entered in Fulton county upon the trial of this action by a court without a jury.
    Prior to December 28, 1882, and in that year the plaintiff, a national bank at New Haven, Connecticut, discounted eleven promissory notes, aggregating in amount $5,104.69, for one Abner C." Wetmore, a resident of Meriden, in that state. At that time Wetmore was owner of an undivided third part in lands situate in Hamilton county, in this state. And on December 28, 1883, he made a deed of those lands to one Campbell, who, on that same day deeded them to Wetmore’s wife, by a deed regular in its execution. Both of the deeds were recorded in the office of the clerk of Hamilton county, on January 3, 1883. Neither was supported by any consideration. Subsequently, and on or about February 19, 1883, Wetmore made a general assignment for the benefit of creditors, one Eli Ives being named as trustee, who on April 19th following, resigned, and Charles P. Ives, succeeded to the trust. This assignment by the Connecticut law conveyed no title or interest in lands without the state.
    Actions were brought upon the several notes as they fell, due. And action was brought by plaintiff in Connecticut, against Wetmore, upon an over draft during the pendency of the actions. And before the recovery of judgment in any, Wetmore died intestate."' Subsequently Charles P. Ives was appointed administrator of his estate. Proceedings were thereupon taken by this plaintiff to revive the suits against the administrator, and an order was by him obtained from the surrogate’s court, that the estate should be settled as an insolvent estate. The Connecticut laws do not allow any judgment to be obtained against the representative of such an estate while in process of settlement, except for debts due to the United States, the state of Connecticut for expenses of last sickness, or funeral expenses of the decedent. Judgment was thereafter rendered dismissing those actions. The plaintiff’s claims were proved before commissioners appointed to take proof of claims against the insolvent estate, but nothing has been realized therefrom by this plaintiff.

      8. and L. M. Brown, for app’lt; H. B. Durfee, for resp’t.
   Bockes, J.

The plaintiff was simply a creditor at large of Abner 0. Wetmore(i), deceased, the late husband of the defendant, to whom, as is alleged, his lands described in the complaint were transferred without consideration and in fraud of the rights of his creditors. Should title thereto be adjudged to have remained in the husband to the time of his death, still the plaintiff would then have had no lien thereon, either general or specific, for the satisfaction of its claims against him; nor was there then, or at any time thereafter, any trust in favor of the plaintiff as respects those claims impressed thereon, legal or equitable, by virtue of any writing creating or declaring such trust. This being so, the plaintiff has no standing in court to demand and have the relief sought herein, to wit, to have the transfer of the premises to the defendant adjudged fraudulent and void, and payment of its claims against Abner 0. Wetmore, deceased, decreed to be made therefrom. This conclusion is settled by many decisions. Evans v. Hill, 18 Hun, 464; Adsit v. Butler, 23 id., 45; affirmed, 87 N. Y., 585; Geery v. Geery, 63 id., 252; Estes v. Wilcox, 67 id., 264; Adee v. Bigler, 81 id., 349. " If it be, as is insisted, that the plaintiff makes a case showing that all attempts by other proceedings to obtain satisfaction of its claims would be absolutely unavailing, still that would not change the settled rule of law declared in the above and other cases. It is conceded, of course, that in the case of a creditor’s bill there must be judgment and execution, and under some circumstances a return of execution unsatisfied in whole or part, in order to give the the creditor standing in the court to demand and have the removal of a fraudulent transfer by the debtor of his property. This necessity grows out of a statutory requirement (2 B. S., 174, § 38; Code Civ. Pro., §§ 1871, 1872); but the Same rule obtains in all cases where this relief is sought, irrespective of such statutory provision. This was so determined in Adsit v. Sandford (supra), where the subject was discussed at length and on authority; and indeed this rule was recognized by the special term in this case, but it was found that here the plaintiff had exhausted its remedy at law, and therefore had standing in the court to have the relief demanded. In this conclusion of the learned judge we think he was in error. The plaintiff was a general creditor without judgment and execution. Before commencing this action, it had taken no proceeding to collect its claims and demands. There had been a proceeding in the probate court of Connecticut, under the insolvent laws of that state, wherein commissioners in insolvency had been appointed to administer upon the estate of the debtor, Abner C. Wetmore, who was insolvent and had made an assignment for the benefit of his creditors. The plaintiff presented its claims to those commissioners in insolvency and the latter allowed them and determined their amount; but nothing was realized thereon from that proceeding. Now this proceeding, in its results, did not amount to a judgment in favor of the plaintiff against Abner 0. Wetmore for the amount of the claims of the former against the latter; there was no adjudication that the plaintiff recover the amount against Wet-more. It but settled—determined the amount due the former from the latter for the purpose of that proceeding— nothing more; and if deemed a judgment, still there was no execution thereon, even if a judgment recovered in another state, with execution thereon returned unsatisfied there, would aid the plaintiff’s case. The learned judge was in error, as we think, in holding that the plaintiff had exhausted its remedy at law, within the requirements of the decisions above cited. This conclusion necessitates a reversal of the judgment, without considering other questions discussed before us on the argument; and as this objection to the recovery goes to the right of action as made on the complaint, judgment final should be awarded in favor of the defendant, with costs.

Judgment reversed, judgment final ordered for the defendant, with costs.

Learned, P. J., concurs; Landon, J., not sitting.


author: Boches, J.

text:
    William F. Taylor, Resp’t, v. Elijah J. Millard, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed January 4, 1887.)

    1. License—To enter land is revocable „by the owner of the inheritance.
    A right to enter land and take apples therefrom, if deemed a mere license resting in paroi, is revocable at the pleasure of the owner of the inheritance.
    2. Same—Is cut off by deed of the property, duly recorded, not MENTIONING THE EXISTENCE OF THE RIGHT.
    Such a right resting only in paroi, and not being a matter of record, is cut off by a conveyance of the land by the owner, which is duly acknowledged and recorded, and which makes no mention of the existence of such right.

      Appeal from a judgment entered upon the verdict of a jury rendered in the county court of Rensselaer county.
    John Millard and his brother Elijah Millard, from the year 1836 until about the year 1850, were tenants in common of a farm of about 170 acres, situate in the town of Berlin, county of Renssalaer and state of New York, on which was an apple orchard. About the latter named year, the brothers being tenants in common, made a paroi partition of the premises, agreeing that Elijah should have seventy acres and John the remaining 100 acres, on which the orchard was situated. It was further agreed that Elijah, his heirs and assigns, should have the right to enter yearly the portion partitioned to John, and gather one-half of the apples from the orchard. The occupancy of the premises was continued in accordance with this agreement, without objection, until the death of Elijah in 1854.
    Elijah left a will, which was admitted to probate in 1856 by the surrogate of Rensselaer county.
    By this, his share of the land was devised to Elijah J. Millard, his nephew, the defendant in this action. The will also contained a clause, giving to the before mentioned devisee all the testator’s right in the apples growing or to grow on the other portion of the premises. Under this will he went into possession of the seventy acres, and each year went upon the other part of the premises and took therefrom one-half of the yield of apples, until the year 1861, when he conveyed all his right, title and interest therein, together with the appurtenances thereunto belonging, to Mary E. Millard, his sister-in-law. Since that time, each year until 1884, the defendant has gone upon the land upon which the orchard is located and gathered therefrom one-half of the yield of apples, under the authority of his grantee. John Millard, the original co-tenant, to whom the 100 acres was allotted upon the partition, conveyed his share March 23, 1870, to his son, William A. Willard, who on March 25, 1880, by a deed, in which his wife joined, conveyed the same to this plaintiff.
    In the fall of 1884, this plaintiff objected to the defendant’s taking the apples, as was his custom, and in December of that year brought an action against him in a justice’s court.

      Henry L. Landon, for the app’lt; Samuel Foster, for the resp’t.
   Boches, J.

If the right to enter and take the apples in question be deemed to be a mere license, resting in paroi, it was revokable at the pleasure of the owner of the inheritance. This is settled in Cronkhite v. Cronkhite (94 N. Y., 323), and in many other cases. It is doubtful whether this right, however considered, not evidenced by any valid grant or reservation giving it effect as a grant, can be regarded and treated in law as an easement. Wiseman v. Lucksinger, 84 N. Y., 31; Pierce v. Keator, 70 N. Y. 419; Huntington v. Asher, 96 N. Y., 604. It is insisted that the right, being coupled with a grant, or its equivalent growing out of a paroi partition between former owners and supported by a consideration, constitutes an easement attached to the seventy acres as the dominent tenement, resting upon the 100 acres is the servient tenement. The difficulty is that there was no valid grant in writing of the right or privilege here asserted by the defendant. It rested in paroi merely. It was not contained in any grant or declared by any reservation in a grant; it was not, as it could not be, made a matter of record. Consequently the recording act supervened under which the plaintiff here may claim and have protection.

John Millard, in 1870, conveyed the 100 acres to William A. Millard, by deed; and the latter, in 1880, conveyed the premises by deed to the plaintiff. Neither of these conveyances contained any reference to the right insisted on by the defendant; and both deeds were duly acknowledged and recorded. There was nothing in either of these conveyances, nor was there any thing apparent in the use of either of the tenements by their respective owners, showing or indicating the actual existence of the right now insisted on. The plaintiff’s record title gave no indication of its existence; and he was bound only to wdiat the record disclosed as to the title of the premises conveyed to him, with what was apparent in its occupation and use.

It follows, therefore, that the plaintiff, as the case is made on the record before us, is protected in his absolute title by the recording act. We heed consider no other question in the case.

Judgment affirmed with costs.

Learned, P. J., and Landon, J., concur.


author: Pratt, J.

text:
    Catharine T. Malloy v. The Town of Pelham, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.).

    1. Jury—Challenge to the favor—Effect of exception to allowance —When party has peremptory challenges.
    Where a party’s challenge of a juror was to the favor, and she was entitled to two peremptory challenges, which had not been resorted to: Held, that the opposite party was not injured by the allowance, even if wrong. Hildreth v. City of Troy, 101 N. Y., 334, distinguished.
    3. Highways—Commissioners—Notice.
    Notice to one commissioner of a board of town commissioners of highways is sufficient to charge the board.

      3. Same—Evidence of possession of funds.
    Proof that the commissioners had in their hands money unexpended sufficient to pay for certain repairs which were not made, is all that is necessary to prove their possession of funds. It is not necessary to show that they had sufficient to make all desirable improvements.
    Appeal from a judgment entered on a verdict at the Westchester county circuit. It appeared on the trial that Mr. Johnson, one of the jurors, was or had been a client of Judge Mills, defendant’s counsel, and that the case in which Judge Mills was Johnson’s counsel was still pending on appeal. The plaintiff thereupon challenged the juror for cause, and the court sustained the challenge.

      Martin J. Keogh, for resp’t; Isaac N. Mills, for app’lt.
   Pratt, J.

The exception to the allowance by the court of the challenge to the jury was not an injury to the appellant. Respondent was entitled to two peremptory challenges which were not resorted to. She, therefore, had the absolute right to exclude the juror from the box. The case of Hildreth v. The City of Troy is not an authority against this ruling. In that case the court held that as a matter of law all the jurors who were residents of the city of Troy were disqualified, by reason of interest, from serving in that case.

In this case the challenge was to favor, and it was a question of fact for the trial judge to determine whether the juror stood indifferent between the parties. The facts elicited plainly showed bias upon the part of the juror. The manner of his testifying, as well as the facts testified to, warranted the judge in setting the juror aside, while the facts did not bring the case within the statutory disqualification for challenge for principal cause, enough was disclosed to satisfy the judge that the juror could not impartially try the cause. In this, we think, there was no error.

The motion for new trial, on the ground the verdict was against evidence, was properly denied. There was abundant evidence to sustain the verdict, nor can it be said that the damages were excessive. !

The charge of the court was so favorable to the defendants that there is little to discuss on this appeal. There can be no doubt that the ruling, that notice to one commissioner was sufficient to charge the board with notice was correct. It has never been held that actual notice to each member of a public body is required to impose upon them a duty to act.

The proof that the commissioners had in their hands eighty dollars unexpended at the close of the year 1882, and that the repairs to the road could have been made for $2.50, was ample to show them possession of funds.

Were it necessary to show the commissioners in possession of funds sufficient to make all desirable improvements, these actions would be substantially abolished.

The rules of law were declared to the jury substantially as requested by the defense.

No valid exceptions appear, and we are satisfied that the verdict, though liberal, does not call for the interference of the court.

Barnard P. J., concurs.


author: Barnard, P. J.

text:
    Francis W. Pettingill, Resp’t, v. The City of Yonkers, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. City of Yonkers—Water board created by Laws 1873, chap. 36, PART OF CITY GOVERNMENT.
    The water board created by chapter 36 of Laws 1873 is part of the city government of Yonkers, and the city is responsible for the negligence of said board.
    2. Same—ISTegligencb for city to allow open trench to remain in STREET FOR TWO MONTHS WITHOUT BARRIERS.
    Where the evidence showed that an open trench with an embankment of dirt from the excavation existed for two months upon the traveled part of one of the city streets of Yonkers, which was entirely unguarded by a barrier and unprotected by a light, and that plaintiff was injured by her carriage being overturned while passing slowly along’the street in the dark: Hell, the city was liable because it permitted the street to be used after such notice of its dangerous condition.
    3. Police may be used to keep city informed of condition of streets.
    It was not erroneous to charge that “ the city is provided with police and officers and other instrumentalities which they may use in ascertaining the condition of affairs in the city, and these are provided for that purpose.”
    Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the Westchester county circuit, and from an order denying a new trial on the judge’s minutes, and because the verdict was excessive and against the weight of evidence.

      James M. Hunt, for resp’t; Joseph F. Daly, for app’lt.
   Barnard, P. J.

If the complaint was solely based upon an allegation that the defendant directed the excavation which caused the accident, it was abundantly proven.

The defendant is a municipal corporation having the care of its street and public places, and owing a duty to the persons who may lawfully travel over the same, to keep the same safe so far as that can be done by the exercise of prudence and foresight. By chap. 36, Laws of 1813, there was created a water board with power to take lands by condemnation for the city.

The revenues were for the city, and the purposes were plainly for the benefit of the city. The board could enter upon a street with an obligation imposed by the act to restore the same and to repair all damage done. This board was clearly a part of the machinery of the city government, and under the case of Ehrgott v. The Mayor (96 N. Y., 265), the negligence of the water board acting in the performance of the duty of the municipality was the negligence of the defendant.

The complaint is not restricted to the averment that the defendant made the excavation. There is the further averment that the defendant suffered by its neglect the excavation to continue unfilled and unguarded. Whether the excavation was made by lawful authority or by a trespass, the city still owed a duty to keep its streets safe. Nelson v. The Village of Canisteo, 100 N. Y., 89. The proof showed that an open trench with an embankment, or heap of dirt, from the excavation, to exist for two months upon the traveled part of one of the city streets. The hole was entirely unguarded by a barrier, and entirely unprotected by a light; the nearest light being 100 feet away. It was sufficient in extent to turn over plaintiffs wagon passing slowly along in the dark. The plaintiff was thrown out and injured so severely that she will probably never have her health restored. The city is hable for the injury, because (if for no other reason) it permitted its streets to be used after such a notice of" its dangerous condition. Saulsbury v. Village of Ithaca, 94 N. Y., 27. And this result follows whether the negligence is based upon the notice or upon the failure to acquire a knowledge of the condition of the streets for such a length of time as to establish negligence for that. The first exception to the charge is therefore unfounded. It was not erroneous to charge that “the city is provided with police and officers and other instrumentalities which they may use in ascertaining the condition of affairs in the city, and these are provided for that purpose.” These officers and instrumentalities of government, mayor, aldermen, police, street commissioners, are provided for the good government of the city.

It is not too much to say that their services are at the command of the municipality for that purpose.

The police board, although created by chap. 163, Laws of 1873, was one of the departments of the municipality. Ehrgott v. The Mayor, 96 N. Y., 264; Fleming v. Village of Suspension Bridge, 92 N. Y., 368.

The judgment should therefore be affirmed with costs.

Pratt, J., concurs; Dykman, J., not sitting.


author: Dykman, J.

text:
    Janie Linton Morris, as Adm’rx, etc., of Robert E. Morris, deceased, Resp’t, v. Watson H. Brown et at., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    ^Negligence—What amounts to an adoption op appliance by a contractor SO AS TO MAKE HIM LIÁBLE POE NEGLIGENCE IN USE OP IT BY SERVANT.
    Where the defendants were under an obligation resulting from their contract to furnish facilities for the inspection of their work, and acquiesced in tli* utilization of certain “ dump cars ” by the engineers for that purpose: Held, that it was a sufficient adoption or provision of a mode for the fulfillment of that portion of their contract to require diligence and care in its execution, and that the defendants were liable for the negligence of their servant in the management of said dump car, which resulted in intestate’s death.
    Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the Westchester county circuit, and from an order denying a motion for a new trial made upon the judge’s minutes, and because the verdict was contrary to the evidence and contrary to law.

      Morris, Kellogg & Morris, for resp’t; Foster & Went-worth, for app’lts.
   Dykman, J.

This is an action for the recovery of damages for causing the death of the plaintiff’s intestate. The defendants are contractors with the aqueduct commissioners for the construction of the northerly portion of the new Croton aqueduct, commencing at Croton lake, in Westchester county; and in their contract they stipulated to furnish all facilities for the visitation and inspection of the work while it was in progression. Such examination and inspection was made by engineers in the employ of the city, under the control of the chief engineer of the aqueduct commission, and the deceased.Mr. Moms, one of the engineers engaged in that service at the time of his death; and it was his duty in that position to inspect the work done by the defendants, and to see that it was performed in compliance with their contract.

The defendants in the performance of their contract were engaged in the excavation of a shaft from the north, and as the material was loosened it was removed by cars attached to a cable, and drawn out by power furnished by a stationary engine at the portal of the excavation, and the engineers in charge of the work for the commissioners, including the deceased, descended the shaft by these cars, which were under the charge and management of the employees of the defendants.

On the day of the accident, as the car was about to commence its descent into the cavern, the deceased, with another engineer, stepped upon the rear portion of the car to make the descent with it, and the person in charge shoved it off and got on then himself upon the front car, without stopping the train, and they discovered nothing wrong or disorderly until they had proceeded about a hundred feet and commenced running on a steep incline, when they found by the increase of the speed that the cable had not been attached to the cars. The man then in charge attempted to apply the brake, but without effect. The car continued to move rapidly until it collided with other cars on the track, when the deceased was precipitated from the car and sustained the shock which caused his death.

The trial resulted in a verdict for the plaintiff, and the defendants, on this appeal from the judgment and order denying their motion for a new trial, insist that they owed the deceased no duty and were guilty of no negligence, and that the deceased contributed to and brought about the injury that caused his death.

It is to be remarked in relation to the first question presented, that the defendants were under an obligation resulting from their contract to furnish facilities for the inspection of their work, and if they acquiesced in the utilization of these cars by the engineers for that purpose, that was a sufficient adoption or provision of a mode for the fulfillment of that portion of their contract, which would require diligence and care in its execution.

So all the questions involved were questions of fact for the solution and determination of the jury, and they were all submitted to that body, and were all solved against the defendants.

The jury was charged distinctly that the defendants had the option to select their own facilities for the inspection of their work, but if they allowed the engineers to use these empty cars to go down to the work, and that was a method permitted by these defendants, then the engineers had the right to be upon the car, and it was the duty of the defendants to exercise proper diligence in sending it into the tunnel.

And then the case on this point went to the jury on the question of negligence in the management of the car in its descent on the occasion in question, and the jury was instructed that the negligence of the servant would be imputed to the master, if any was found.

These instructions seem to embody the sensible rule, and we find no error in their diffusion.

On the question of contributory negligence, the jury was fully and fairly instructed, and none of the exceptions to the charge are well taken.

The motion for a nonsuit was properly overruled, and the judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Matter of the Application for a Writ of Mandamus by Nicholas Cooper, App’lt, v. The Registrar of Arrears of the City of Brooklyn, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Taxes and assessments—Brooklyn charter, Laws 1873, chap. 863— Duty op registrar as to furnishing bills op arrears—Tax sale —Title.
    Where the relator demanded, of the Registrar of arrears of Brooklyn bills for “all arrears of taxes, assessments, water rates and liens against each ” of certain lots, and the Registrar gave separate bills for each of said lots, with divers items of arrears, which bills the relator paid, supposing it included all arrears, and it appears that an item was left out, and the city sold the lands for this omitted arrear. Held, that the Registrar was bound to furnish the bills by Laws of 1873, chap. 863, title 8, § 16, and that if he failed to give the bills no title could be sold.
    Appeal, from an order of the Kings county special term denying a motion for a writ of mandamus to the registrar of arrears to receive a sum of money alleged to be due for taxes, etc., and to cancel said taxes, hens and a certain tax sale of said realty.
    The petitioner, being the owner of three lots in the city of Brooklyn, went to the office of the registrar of arrears of said city on March 18, 1886, and said to the clerk stationed at the window or opening marked “ Bill Clerk” that he wished to pay all arrears on said lots, and requested to be furnished with bills for the same. Said person so in charge thereupon prepared such bills and handed them to the petitioner. Each bill had several items of arrears on it, and the petitioner then and there paid the aggregate of said bills, supposing he was paying ah the arrears on said lots, and they were returned to him receipted.
    A short time thereafter the said registrar sold said three lots for arrears, of which the petitioner received notice from the purchaser on June 3. The fact was, that when the bills were made out for petitioner as aforesaid one item of arrears was either negligently or designedly left off of each. After learning of such sale by the registrar the petioner tendered to him the full amount of said three items of arrears with all percentages due thereon.
    This is substantially the statement in the petitioner’s affidavit. In addition it sets forth that in said registrar’s office the books are kept in a space partitioned off, and are not open to the inspection of the public; and furthermore that the “ invariable rule and custom ” in said office is for said registrar to furnish complete bills to all persons applying to pay arrears.

      William J. Gaynor, for app’lt; Almet F. Jenks, corporation counsel, for resp’t.
   Barnard, P. J.

Whatever may have been the strict legal right of the registrar in respect to a specific arrear, in order to compel him to act under the city charter, if he does answer the general denial he is bound to do so correctly.

The demand in this case was for “all arrears of taxes, assessments, water rates and liens against each of said lots.” The number of the lots were given, Nos. 41, 42, 43, in block 55, ward 23. The registrar acted and gave “separate bills for each of said lots, with divers items of arrears.”

The relator paid the bills, and it appears that an item was left out and the city sold the lands for this omitted arrear. The relator supposed the bill included all arrears, and knew nothing of the sale until it was made. That upon learning of the sale, the relator went to the registrar and tendered the arrear and all interest and charges on it, which tender was refused. The registrar was bound to furnish the bills by title 8, section 16, of the charter. If he failed to give the bills, no title could be sold. Van Benthuysen v. Sawyer, 36 N. Y., 150.

The section in respect to official searches was designed for a different purpose. It was to be evidence of the lien or freedom from Men by arrears of tax, and the registrar was responsible for the accuracy of his search and was entitled to a fee.

Upon the relator’s affidavit there is a strong case for relief against the sale. If the facts are doubtful, an alternative writ should furnish the means for the trial of the issue. Under the affidavit of the clerk an issue was made upon the facts. Kane makes affidavit that the relator was told that there was a large number of other arrears, and that the relator said that he knew of that fact.

The order should be reversed and an alternative writ of. mandamus ordered, with costs to abide event of the proceeding.

Pratt, J., concurs.


text:
    James McCormack, Pl’ff, v. John P. Crawford, Def't.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Negligence—Master and servant—Duty of master to furnish safe TOOLS AND APPLIANCES.
    Where there was evidence showing that the master furnished abundance of material and labor to construct a scaffold, and there was no proof of improper workmen being employed in any department of the work: Held, that a workman who was injured by falling through a. scaffold which his co-laborers had negligently constructed so as to be unsafe, could not recover as against the master, and that the complaint was properly, dismissed.
    Plaintiff was non-suited at the Kings county circuit, and the exceptions were ordered to be heard in the first instance at general term.

      Charles J. Patterson, for pl’fE; Johnson & Lamb, for deft.
   Barnard, P. J.

No negligence was proven. The defendant was a contractor for building a sewer. It was a part of the plan of construction that a scaffolding was to be built over the excavation after the trench had been dug and the side plank put in. The scaffolding was for the purpose of letting down to the masons the brick and mortar with which to construct the work. This scaffold was constantly removed forward as the work progressed so as to be always in front of the work being done.' The scaffolding was made of plank resting on cross pieces. The correct way to build the same was to have the planks lap each other and then have a plank laid lengthwise across the joints. The- workmen, including the plaintiff, generally made the scaffolding. This scaffolding was so made that the planks did not join close, and no planks were placed on top across the joints. There was no lack of any material, either plank or cross piece, and no lack of abundant labor to do the work and no proof of improper workmen in any department of the work. The master did his duty. He furnished all he was bound to furnish, and if the employees were negligent—if' they constructed the scaffold so insecurely as to be unsafe—no action will lie against him by one of the workmen. In this case the employees, having abundant material of good quality in all respects, left the ends of the planks where they came together without support, and the plaintiff walked upon it and fell. He has no right of action therefor against the defendant.

Judgment affirmed, with costs.

Dykman, J., concurs.


text:
    William J. Hill and Minnie McDonald, as Ex’rs, etc., of John McDonald, deceased, Resp’ts, v. Charles S. Woolsey and others, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Evidence—Of party interested in result inadmissible—Code Civ. Pro., | 839.
    In an action brought by executors against sureties upon a lease given by the deceased to recover rent due thereon, the action being defended by two sureties upon the ground that they had been induced to sign the lease by the false and fraudulent representations of the lessor. Held, that the lessees were incompetent to testify to representations made by the deceased lessor and communicated by them to the sureties as to the value of the business, under Code Civil Procedure, section 829, on the ground that they were interested in the result, and being so interested, they could not reneat the representations of the deceased made to them when acting as the agents of the sureties.
    Appeal from a judgment entered at the Kings county circuit on a verdict directed by the court in favor of the plaintiffs for balance due for rent of a furnished hotel at Coney Island, leased by John McDonald, the plaintiff’s testator, to the firm of Carpenter & Wise.
    McDonald, the deceased plaintiff, proposed to lease his hotel at Coney Island to Carpenter and Wise. He exacted of them that they get sureties, and they asked these three defendants, Woolsey, Skinner and Schoonover (at an interview where all were present), to become the sureties They said substantially: “Go back to McDonald and get from him a statement of the business he did in this hotel the last season, the amount of his average bar receipts, the rent the rooms brought him.” They knew nothing of the business, and said they would not sign as sureties till McDonald, the deceased plaintiff, gave the particulars asked for, so they could see what risk they would be assuming.
    The two proposed tenants, accompanied by one of the proposed sureties (Schopnover), and also by a disinterested person (Douglas), went back to McDonald, and a conversation ensued. What occurred, and what was said, is proven by said Douglas, the disinterested person, the testimony of the other persons on that head being excluded on the ground that being parties “interested in the event,” they could not testify “concerning a personal transaction Or communication” between them and the deceased McDonald. Douglas says that Wise, one of the proposed tenants, acted as spokesman.
    By another witness defendants proved that these representations by McDonald were grossly false.
    To prove that they were communicated to the sureties, that they had knowledge of them before they signed as as sureties, one of them, Schoonover, who was present and heard them, and the two proposed tenants, Carpenter and Wise, who went back from the interview with McDonald to the two other sureties, Woolsey and Skinner, were asked if they communicated to these sureties what McDonald said, and to state what they so said. But this was objected to, and the court excluded it on the ground that it would be testimony of parties interested in the event concerning a personal transaction or communication with the deceased plaintiff.

      _ Carpenter & Roderick, for resp’ts; A. H. Man and William J. Gainor, for applts.
   Barnard, P. J.

This action is one against the lessees and sureties of the lessees upon a hotel lease, for the rent. The landlord who made the lease was one McDonald, who is represented by the plaintiffs.

The lessees make no defense, two of the sureties answer, Woolsey, Skinner and the other surety, Schoonover, appeal from the judgment. The answer of the two sureties sets up fraudulent representations made by McDonald, by reason of which the sureties were induced to sign the lease as sureties. Upon the trial it appeared that Carpenter and Wise, the lessors, applied to these sureties to become responsible for the payment of the rent. Woolsey, one of their number, requested that the lessors go to McDonald and ask for the amount taken in at the bar of the hotel in the previous years when McDonald kept the hotel. They went and obtained the answers and offered to prove the communication of the same to the two defending sureties. This evidence was objected to and excluded under section 829, of the Code. It appeared that the lessors were in possession of the hotel, and therefore were interested in the result, because a judgment in favor of the sureties would leave them in possession of the Jiotel, and a judgment against the sureties bound them. The witness Wise, one of the lessors was incompetent to carry the message to the sureties.

He could not testify to the representations made by McDonald to him.

That was a clear personal transaction with a deceased party to the contract. As the agent of the sureties being a party in interest, he could not repeat back the representations of the deceased.

As an independent witness he was excluded on his own account as a party interested in the result.

It is true, that, if McDonald was alive he could not deny what Wise told the sureties in his absence, but he could deny the conversation, and the validity of the testimony depended upon the declaration of McDonald.

The judgment should therefore be affirmed with costs.

Dykman, J., concurs.


text:
    Matter of the Petition of James J. Powers, Resp’t, v. James Jourdan, as Receiver of the Brooklyn, Flatbush and Coney Island Railway Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Railroad—When receiver not authorized to pay claim for work.
    A receiver of a railroad company appointed by an order of the court on the application of judgment creditors, is not authorized to pay claims for work and materials furnished before his appointment.
    Appeal from an order of the special term, held in Kings county, directing the receiver to pay petitioner the amount of his claim out of moneys in his hands as such receiver.

      Benj. G. Hitchings, for resp’t; Tracy, Gatlin & Fenn, for app’lt.
   Dykman, J.

From the petition which laid the foundation for the order appealed from we are at liberty to gather the following facts:

In the year 1883, there was a hotel at Coney Island belonging "to the Brooklyn, Flatbush and Coney Island Bailway Company, and before the close of the month of September of that year the petitioner furnished labor and materials for the sewage of the hotel to the amount of §956.39.

On the 25th day of January, 1884, General James Jourdan was appointed receiver of the railroad company by an •order of the supreme court, on the application of judgment creditors of the company, and he accepted the situation and entered upon the performance of his duties.

Upon the presentation of the claim of this petitioner to the receiver he declined to pay the same, and based his refusal upon the insufficiency of his power to justify such payment by the application of the income from the road.

Thereupon the order from which this appeal is taken was made requiring the payment of the claim.

The facts are undisputed, and, if this order is to be obeyed, the payment must be made from the earnings of the road, as the receiver is in possession of no other funds.

The antecedent existence of the claim in question is not of itself sufficient to justify the refusal of the receiver to discharge the same from the earnings of the road under his administration, for it often becomes necessary to pay preexisting debts of a certain class from the receipts of the receiver. But the difficulty with the liability in question is that it was incurred for the permanent improvement of the hotel property owned by the railroad company, and not for current expenses in any sense, either previous or subsequent to his appointment.

The demands of parties furnishing labor or supplies for the operation of a railroad may be, and usually are, paid from its current income. But the use of the earnings in payment of claims for permanent improvements to the property in preference to the claims of lienors by judgment or mortgage would be a diversion of the funds which a court of equity could not sanction.

The cases of Miltenberger v. Logansport Railway Co. (106 U. S., 286); Burnham v. Bower (111 id., 776), and Met. Trust Co. v. Tonawanda R. R. Co. (40 Hun, 80), seem to be authority sufficient for the sustenance of these principles, and require the reversal of this order.

Subsequent to the preparation of the foregoing opinion we were furnished with a copy of the opinion of the court of appeals in the case of the Met. Trust Co. v. Tonawanda Railway Co. (2 N. Y. State Rep., 69), above cited, by which we find the decision of the supreme court was reversed, and the court of appeals there held that a receiver in an action to foreclose a mortgage given by a railroad corporation was not authorized to issue certificates to pay the claims of employees of the company for labor performed previous to his appointment. Under that decision, therefore, it is entirely plain that the order appealed from must fall.

The order should be reversed, with ten dollars costs and disbursements, and the motion should be denied, without costs.

Barnard and Pratt, JJ., concur.


author: Barnard, P. J. Dykman, J.

text:
    John Libbey, App’lt, v. Emma J. Mason, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Administration—When letters mat be granted without issuing A CITATION TO NON-RESIDENTS—CODE ClV. PRO., § 2662.
    Where it appeared that the husband of the intesiate was a non-resident, the surrogate was authorized by section 2662 of the Code Civil Procedure to grant letters of administration to the daughter on presentation of her petition, without issuing any citation to the husband. He could exercise this power as well after as before the filing of the petition of the husband.
    2. Same—Residence.
    The non-residence of the husband was fully established by the fact of his having voted regularly in the state of Maine, where he owned a small place and was accustomed to pass most of his time.
    Appeal from an order of the surrogate of Kings county, refusing to grant letters of administration to plaintiff, the husband of the intestate, and granting them to the defendant, her married daughter.
    Facts are sufficiently stated in the opinion of Dykman, J.

      Chauncy B. Ripley and A. B. Tappan, for appl’t; Nathaniel B. Cooke, for resp’t.
   Barnard, P. J.

The conclusion of the surrogate that the. petitioner Libbey is a resident of the state of Maine, is well supported by the evidence. The proof shows that he owns a small place in Orono, Penobscot county, in that state; that he has been accustomed to pass most of the time there, and, above all, that he has voted regularly in that state. This is a decisive proof of residence under the laws of Maine as well as under our laws. The evidence also shows that the petitioner Mason resides in Brooklyn, N. Y. A temporary change of domicile for the purpose of educating his children. Dupuy v. Wurtz, 53 N. Y., 556.

The sole question, then, is whether the granting of the letters to Mrs. Emma Mason was proper. The petitioner Libbey was the husband of Lydia 0. Libbey, the deceased intestate. The petitioner, Mrs. Mason, was the daughter (only daughter) of the intestate. The husband by the Revised Statutes had the better right. 3 R. S., 2290, § 27.

By the Code of Civil Procedure, however, it is provided that non-residents of equal or better right than a petitioner to administration upon the estate of a deceased person, need not be cited, and that when it is not necessary to cite a person, letters may be granted to a petitioner. -See 2662.

The petition of Mrs. Mason was presented to the surrogate, and no citation was issued to the husband. Letters to her were, therefore, properly granted under this section, if the husband was a resident of the state of Maine, about which fact there is no doubt. His petition, even if made-before the actual granting of letters to Mrs. Mason, had no relevancy beyond the fact that he declared himself therein to be a resident of Kings county, N. Y. If that was true, then a citation should have been issued to him; but it was not the fact, and the petition failed.

The surrogate’s decree was therefore, right and should be affirmed, with costs.

Pratt and Dykman, JJ., concur.

Dykman, J.

Lydia C. Libbey resided in Brooklyn and died there intestate, leaving Emma J. Mason, her only child, who resided in Brooklyn at the time of her mother’s death and now resides in the city of New York, and John Libbey, her husband, who resides in the state of Maine.

Emma J. Mason presented a petition to the surrogate of Kings county praying for the issuance of letters of administration upon her mother’s estate to her.

A few days subsequently John Libbey, the husband, also presented a similar petition to the surrogate, who thereupon decided that letters should issue to the daughter. From that decree the husband has appealed.

Section 2662 of the Code of Civil Procedure is this: “Every person being a resident of the state who has a right to administer prior or equal to that of the petitioner, and who has not renounced, must be cited upon a petition for letters of administration. The surrogate may, in his discretion, issue a citation to non-residents or those who have renounced, or to any or all other persons interested in the estate, whom he thinks proper to cite. When it is not necessary to cite any person, a decree granting to the petitioner letters may be made upon presentation of the petition.

Under this law it was not incumbent upon the surrogate to issue a citation to the husband, and it was entirely within his competence and discretion to issue letters to the daughter immediately upon the presentation of her petition.

The failure to issue letters to the daughter previous to the presentation of the petition of the husband did not. divest the surrogate of his discretion, and he could exercise the same thereafter as well as theretofore.

We do not find that the discretion of the surrogate was improperly exercised, and the decree should be affirmed, with costs, to be paid by the appellant, personally.


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    Fidelia R. Manning, App’lt and Res’pt, v. John B. Sweeting, Res’pt and App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Principal and surety—Extent of liability—Alimony.
    The defendant became surety for the payment of alimony by plaintiff’s husband at the rate of nine dollars per week, which alimony was afterward increased to fifteen dollars a week by order of the court but without the surety’s consent. The husband having failed to pay the alimony, the surety was only liable to the extent of nine dollars per week, but was not liable for the expense of the burial of the child of the parties to the divorce action.
    2. Same—Interest—When should not be allowed.
    As security for the payment of the alimony the surety had deposited certain bonds with a trustee, which bonds had been sold and turned into money to pay the alimony. If the payments, which were larger than the surety was required to make, had not been made, the money would have been without interest in the trustee’s hands. Held, the plaintiff would not be required to pay interest on the excess received but only to refund the excess.
    Appeal from a judgment entered in favor of plaintiff at a trial of this action at the Kings county special term.
    Plaintiff brought this action on an undertaking given by the defendant to secure to the plaintiff alimony at the rate of nine dollars a week allowed to her in a suit brought by her against her husband, John Gr. Manning, in the city court of Brooklyn, for limited divorce, for a balance of said alimony claimed to be due and unpaid. After the defendant gave said undertaking he deposited in court $5,000, in bonds, to secure the payment of said alimony. The receiver appointed by the court applied part of the proceeds of said bonds to pay said alimony, a part to pay additional alimony at the rate of six dollars a week, and a part to pay the funeral expenses of the son of said plaintiff. The case was tried at special term.
    The contest in this case is wholly and simply whether the plaintiff should be allowed a greater sum or whether she has been allowed too much. The plaintiff claims that the over-payments made to her for additional alimony, at six dollars a week, and for the funeral expenses of the son, amounting in all to $910.25, should not be charged to her. Defendant claims that this sum should be charged to the plaintiff as found by the court, and also interest on each item making up said sum from the time of the payment of the same to the time when the same became due to plaintiff for alimony due to her at the rate of nine dollars a week.

      William T. Gilbert, for pl’ff; J. Douglas Brown, for deft.
   Barnard, P. J.

Under the findings, and there is no case made showing the evidence, the $5,000 bonds belonged to the defendant individually. He had signed an undertaking for the plaintiff’s husband to secure the payment of alimony at the rate of nine dollars a week. By order of the court, the surety deposited the bonds as further security for the payment.

The findings do not show that a right was reserved in the decree to increase the alimony, but it was increased by the court to fifteen dollars a week, and no doubt it was properly done upon notice to the defendant in the divorce suit.

The surety had not agreed for a greater sum than nine dollars a week, and his liability could not be increased without his assent, and the findings show none. It was, therefore, improper for the court to sell the bonds by order and direct the payment of the increased alimony out of the surety’s property.

It was also improper to apply the proceeds of the bonds to the burial of the child of the parties in the divorce action. The surety had not so agreed. As to the increased alimony, the plaintiff received the money and ex equo el bona received.it for the use of the surety, and it must be applied on the payment of the alimony the surety agreed to pay. The same result must follow the payment of the burial expenses. The findings of fact do not state specifically whether the payment of this bill was made to the plaintiff, but it is so to be inferred from the findings of fact, .and it is so stated in the conclusions of law.

The appeal of the plaintiff does not show any error calling for a reversal or modification of the judgment. The appeal of the defendant presents the question whether interest is allowable upon the illegal payments. The sale of the bonds was legal. It was to furnish the money with which to perform defendant’s obligation. The trustee exceeded the authority which could be given in making a larger payment than defendant was obliged to pay.

If this payment had not been made the money would have been without interest in the hands of the trustee under the decree. The plaintiff has promised to pay no interest in express terms. It was a mistake in amount, and if she pays it back by an allowance on her real claim, there should equitably be no interest. It was a payment in advance of the nine dollars weekly allowance, and the defendant is still in arrears.

The judgment should be affirmed, without costs to either party upon appeal.

Pratt and Dykman, JJ., concur.


author: Bykman J.

text:
    Mary A. Gordon, Resp’t, v. Herman H. Nieman et al., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Contract—Evidence—When oral testimony can be introduced to EXPLAIN WRITTEN CONTRACT.
    An agreement constituting an agency was in writing and gave the right of transfer if mutually agreeable, but failed to provide how the agency should be transferred. Oral proof was introduced on the trial showing that this defect was supplied by an oral agreement between the parties at the time the written agreement was signed, and also showing what that agreement was. Held, there was bo error in the admission of the paroi proof.
    Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the Kings county circuit and from an order denying a motion for a new trial made on the judge’s minutes.
    ' The agreement constituting the agency is in writing. It provides among other things that the agency shall continue ‘1 for the term of one year from the date hereof, or longer, with the right of transfer if mutually agreeable.” It fails to provide how the agency shall be transferred; how and what the outgoing agent shall be paid or reimbursed for the stock of patterns he or she has on hand. This defect was supplied by an oral agreement between the parties at the time the written agreement was signed. Such oral agreement did not change or vary the written contract, but simply covered a matter not embraced or fully expressed therein.

      Raphael J. Moses, Jr., for app’lt; 8. W. Valentine and William J. Gaynor, for resp’t.
   Bykman J.

It is the claim of the plaintiff in this action that she purchased of the defendants a stock of patterns, for which she paid them $500, under an agreement that she should become their agent for the sale of patterns, from which she should be relieved on notice from her: She

further claims that the defendants agreed to reheve her from the agency by receiving from her all unsold patterns, and refunding to her all the money paid by her therefor. Then she states further that at the end of one year she notified the defendants of her desire to discontinue the agency, and that they assented to her request, and agreed to receive back the patterns then in her hands unsold and refund to her the fnoney paid to them therefor, and this action was brought for its recovery.

On the trial she testified to these facts substantially, and introduced other testimony in corroboration.

The defendants introduced testimony in positive denial of the plaintiff’s proof, but the j ury gave the plaintiff a verdict.

The defendants have appealed from the judgment, but an appellate court can administer no relief. The questions of fact were sharply controverted, and the jury has certified to the truth of the plaintiff’s statement. That being so, the case is plain, and the verdict and judgment must remain undisturbed.

There was no error in the admission of paroi proof in addition to the written agreement, and as the testimony of the plaintiff fell, her construction of the entire contract received the acquiescence of one of the defendants. She says she called on ffieman and requested him to take back the unsold stock, transfer the agency and refund to her the money she had paid, and he said he was perfectly willing to do so. It is true this was denied by Meman, but the jury may have found it true.

We find no error in the case and the judgment should be affirmed with costs.

Barnard and Pratt, JJ., concur.


text:
    Matter of the Assignment of John Raber to John Loughran for the benefit of creditors.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Appeal—Waiver by accepting portion op order—Exception.
    A party cannot take the benefit of an order or judgment and then appeal from such portions as are unfavorable to him, except where the receipt of the benefit under the judgment is not inconsistent with the appeal.

      Motion to dismiss an appeal, on the ground that the appellant has waived his right to appeal by accepting benefits under the decree appealed from.
    John Raber made an assignment to John Loughran for the benefit of creditors. In June, 1885, the said assignee filed an account of his proceedings, showing a balance remaining in his hands, after payments made by him, scarcely sufficient to pay his commissions and the expenses of accounting. The assignor, John Raber, filed objections and contested said account, and upon his objection certain payments made by said assignee were disallowed as improperly made, and the amount with which he was chargeable was thereby increased to a sum considerably in excess of the balance remaining in his hands, as shown by the said account. Upon the settlement of the decree confirming the referee’s report, the said John Raber insisted that out of such increased balance he should be allowed $200 for his costs, and that the residue should be applied to the payment of his indebtedness to Alois Raber the first preferred creditor not paid in full. This was done at his request. Afterward the amount of costs awarded him was paid to his attorney, and the residue of the sum remaining in the assignee’s hands was applied in payment of his debts. Subsequently he appealed from the whole of such decree, and the respondent now moves to dismiss such appeal.

      Jackson & Burr, for resp’t; James Troy, for app’lt.
   Barnard, P. J.

The rule invoked by the moving party is well settled. A party cannot take the benefits of an order or judgment and then appeal from such portions as are unfavorable to him. Carll v. Oakley, 97 N. Y., 633; Bennet v. Van Syckel, 18 N. Y., 481. There arises an exception to this rule, when the receipt of the benefit under the judgment is not inconsistent with the appeal as when the provisions of the decree are not connected and dependent and the appellant can establish a right to a larger sum without reversing the entire judgment. Knapp v. Brown 45 N. Y., 210; Alexander v. Alexander, second department, 1 N. Y. State Rep. 510. Reversed in the court of appeals, 5 N. Y. State Rep.

The record is not returned and the court may see from the moving papers whether the appellant falls under the rule of the exception.

Motion denied with leave to respondent to raise the question again on the argument of the appeal.

Motion denied with ten dollars costs.

Dykman and Pratt, JJ., concur.


author: Pratt, J. Dykman, J

text:
    James E. Munger, Resp’t, v. George B. Curtis et al., Appl’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Mechanic’s lien—To what it attaches—Laws 1885, chap. 842—When IT ATTACHES.
    A mechanic’s lien only attaches to the extent of the interest of the owner at the time the notice of lien is filed. And the person entitled to such lien, up to the time he files such notice, is a general creditor with no greater .equities than other general creditors.
    2. Same—Does not cut off prior unrecorded mortgage.
    A mechanic’s lien will not cut off or affect a prior unrecorded mortgage made in good faith.
    8. Creditor—Right to secure himself and loan on security to debtor.
    Any person has a right in good faith to loan money and take security from a party who is indebted to others, and a general creditor has a right to obtain security for his debts in preference to other general creditors.
    Appeal from a judgment entered at a special term held in Dutchess county, that a certain mechanic’s lien was the first hen on certain premises and that the Savings Bank’s mortgage was second hen, etc.
    This action was brought to foreclose a mechanic’s lien upon land in Hatteawan, in the county of Dutchess, Ñ. Y.
    Plaintiff and defendant Curtis entered into a contract by which plaintiff was to furnish material and do the carpenter work in building a house on land described in the complaint for $850.40, to be paid for when the building was completed. The building was completed on the 18th day of June, 1886, and accepted by the defendant, Curtis.
    On the 18th day of June, 1886, defendant Curtis and his wife executed a mortgage on the said premises to the defendant the Mechanics’ Savings Bank, for $900. The bond and mortgage were delivered to the bank by Curtis at two o’clock in the afternoon of the 19thday of June, and he was paid by the bank $900, the amount of the mortgage. The defendant Curtis, after receiving the $900 from the bank, absconded without paying the plaintiff. The Savings bank sent the mortgage by mail to the county clerk’s office at Poughkeepsie for record, where it was received at seven o’clock p. M., on the nineteenth day of June, and then and there indorsed on the mortgage the day of the month and the hour of receiving the same. On the 18th day of June, 1886, the defendant Curtis executed a mortgage to Tallardy and Aldridge for $300 on the same premises, and which was filed in the Dutchess county clerk’s office for record on the 21st day of June, at seven o’clock and thirty minutes A. m.
    On the _21st day of June, 1886, the plaintiff filed a mechanic’s lien in said clerk’s court upon the same premises at eight o’clock a. m. of that day, to secure the payment of his claim of $850.40 and brought this action to foreclose his lien, claiming his lien to be prior to both of said mortgages.
    The action was tried before Justice Barnard at the court house in the city of Poughkeepsie on the 28th day of August, 1886, and judgment rendered that said mechanic’s lien was the first hen on said premises; that the Savings bank was the second lien; and the Tallardy and Aldridge mortgage was the third hen.
    From that judgment the defendant the Mechanics’ Savings bank appeals to this court.

      William R. Woodin, for resp’t; II H. Hustis, for app’lts.
   Pratt, J.

It does not seem to me that section 2, of chapter 342 of the Laws of 1885, has any application to the facts disclosed in this case. No fraud on the part of the defendant, the' Mechanics’ Savings Bank, is shown. It is not necessary to construe that section, as no part of it was intended to cover a case like the one in hand. ' That section only apphes to cases where the money is paid or the incumbrance is put on by collusion with the owner, for the purpose of defrauding the contractor or sub-contractor.

It is the settled law, that a mechanics’ lien, only attaches to the extent of the interest of the owner at the time the notice of hen is filed.

The mortgage to the savings bank was executed on the 19th of June, 1886, and the notice of hen was not filed until June 21st thereafter, hence, the hen only attached to the equity of redemption then held by Curtis. 11 Hun, 305; Payne v. Wilson, 74 N. Y., 355.

The latter case holds that a person entitled to a mechanics’ lien acquires no specific hen until he files his notice, up to that time he is a general creditor, with no greater equities than other general creditors, and he is affected by all equities in favor of those dealing with his debtor. A lien will not cut off or affect a prior unrecorded mortgage made in good faith, and, hence, the struggle here over the question of priority of recording the mortgage and filing the notice of hen was unnecessary. The mortgage was executed and delivered, and the money/paid prior to filing the notice of lien, and the equity of the mortgagee attached prior to the hen without reference to the recording act.

In the absence of proof that the bank colluded with Curtis to defeat the claim and hen of the plaintiff, and was fraudulent and void, the mortgage is entitled to priority.

The fact that the bank knew the plaintiff had not been paid, was immaterial. Any person has a right, in good faith, to loan money and take security from a party who is indebted to others, and a general creditor has a right to obtain security for his debt in preference to other general creditors.

The good faith of the bank here, cannot be questioned. The money raised upon the mortgage was stated by Curtis to be applied to pay off his debt to tile plaintiff. The bank has as good a right to trust Curtis as the plaintiff had; the fact that he turned out to be dishonest, is not the fault of the bank. The plaintiff knew that Curtis was to get the money from the savings bank, and he must have known that he could only get it by giving a mortgage. It is clear to my mind that this case falls within the principle stated in the case of Payne v. Wilson (74 N. Y., 355).

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

Dykman, J

This is an action to foreclose a mechanic’s lien, under the provisions of chapter 312 of the Laws of 1885. The first section of that law provides that any person who shall perform labor or furnish materials in the erection of a house may, upon filing the notice of hen prescribed in the fourth section, have a lien for the price and value of the same upon the house and premises to the extent' of the right, title and interest of the owner existing at that time.

Under that law, therefore, persons furnishing labor and materials for the erection of any structure specified therein become creditors at large, with a claim which may ripen into a lien, but he acquires no lien upon the premises until he files the requisite notice prescribed for that purpose.

If, previous to the time of filing such notice of lien, the title to the premises has become vested in another, he can acquire no lien, and his rights in that respect are cut off and lost. So if the premises are incumbered by a mortgage to a bona fide creditor, his claim is subordinate to the lien created thereby. These principles have always been recognized, and they seem to control this case.

The mortgage to the Mechanics’ Savings Bank was honest, and although all the parties assumed that the money procured thereon would be appropriated to the payment of the claim of the plaintiff, yet the bank in no way undertook to make that application, and the law imposed no obligation upon it to do so.

Section 2 of the Laws of 1885 has no application to such a case as this, and affords the plaintiff no relief.

The equities of the parties are equal, and the plaintiff can secure only the relief afforded him by the provisions of the law, and that provides him no rights prior or superior to the Hen of the bank mortgage.

The judgment should be reversed and a new trial granted, without costs.

Barnard, P. J., not sitting.


text:
    People ex rel. William B. Ashley, App’lt, v. The Commissioners of Highways of the Town of East Fishkill, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Highways—When commissioners of highways may refuse to lay out-road.
    Where after due formalities a jury certified to the necessity of a certain road, which certificate was duly served and filed’ Held, that the court will not compel the commissioners of highways by mandamus to follow the certificate and lay out the proposed road where, if laid out and opened, the road would be beneficial to the relator alone and not to the general public.
    Appeal from an order of a special term held in Dutchess county denying the application of the relator for a writ of mandamus to issue to the commissioners of highways commanding them to lay out a certain highway in the town of East Fishkill.

      Herrick & Losey, for app’lt; O. D. M. Baker, for resp’t commissioners; W. O. Anthony, for resp’t R. R. Co.
   Dykman, J.

The dwelling house and out buildings of the relator are located on the northerly side of a public highway, in the town of East Fishkill, and about three hundred and seventy-five feet therefrom. Access to his residence from that highway is now obtained by him by means of a private way across the land of another private owner, and the land of the New England Railroad Company. His way is laid across the railroad, at grade, and also across a natural stream of water, about fifteen feet in width. It is two rods wide, and gates are maintained upon it on each side of the track of the railroad.

In the month of January, 1886, proceedings were instituted by the relator to procure a public highway, two rods wide, from his residence to the old road, and all the steps and measures required by the law were taken for that purpose, and the jury certified to the necessity of the improvement, and delivered the certificate of the jury to. the commissioners of highways of the town, and they forthwith filed it with the town clerk. The relator thereupon released all claim for damages to result from the improvement, and agreed to fence the road and indemnify the town against all damages, and all expenses of litigation.

Still the highway commissioners refused to lay out the road, and the relator applied to the special term for a peremptory writ of mandamus, which should command them to do so, and his motion was denied, and he appealed from, the order of denial.

, From the foregoing statement it is plainly seen that the commissioners of highways are subserving the interest of their town by refusing to follow the certificate of the jury and lay out the proposed highway. If laid out and opened it would be beneficial to the relator alone, and not to the general public, and the burden of its construction and maintenance would be imposed upon the town for the accomodation of one person.

It is true the relator has executed a personal undertaking to defray the expenses of the improvement, but the validity of the instrument is quite doubtful, and in our view it should be allowed no influence.

The highway, if constructed, would be substantially for a private purpose, to furnish the relator with an unobstructed way from his house to the road, and in our view the compulsory power of this court should not be exerted for the accomplishment of that object.

Our conclusion therefore is, that the public interests and the purposes of justice will be best subserved by withholding the writ.

This view renders further examination of the questions involved unnecessary, and we think the order should be affirmed with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.