author: Peckham, J.

text:
    Jane E. Chester et al., Resp’ts, v. Lucy Broderick et al., App’lts.

      (Court of Appeals,

      Filed March 25, 1892.)

    1. Undertaking—Liability of sureties—Subrogation.
    The sureties upon an undertaking on appeal from a judgment of foreclosure are not discharged from liability by the giving of a second undertaking by other bondsmen on appeal to the court of appeals, but on affirmance by that court they are liable for any deficiency remaining after application of the amount paid under the second undertaking.
    2. Same—Subrogation. , -
    The doctrine of subrogation has no application to such a case.
    Appeal from judgment of the supreme court, general term, fourth department, affirming order of special term confirming report of referee directing judgment for plaintiffs upon a claim made against the appellants.

      Louis Marshall, for app’lts; R F. Babcock, for resp’ts.

         Affirming 39 St. Rep., 683.

   Peckham, J.

The general doctrine of subrogation may be assumed to be correctly stated by the counsel for the appellants, but the doctrine itself has no application to the present case.

The judgment creditor having obtained the decree of foreclosure had a right under it to sell the land described in the decree. The defendants’ testator became one of the sureties on the appeal bond given by the judgment debtor to stay proceedings pending the appeal, and thereupon the right of the creditor to enforce her judgment was temporarily suspended. Upon the affirmance of the judgment by the general term the defendant in the judgment, toolc a further appeal to the court of appeals, and upon that appeal two other persons became sureties to stay proceedings on the judgment appealed from. The bonds were given pursuant to § 1331 of the Code, under which the amount is fixed by the court In the bond given upon appeal to the general term that amount, was fixed at $7,000, and upon appeal to the court of appeals it was fixed at $9,000. After the final^affirmance of the decree for a foreclosure, the land was sold and there resulted a deficiency of between $11,000 and $12,000. The plaintiffs, in order to obtain payment of such deficiency, collected from the sureties on the second or court of appeals bond the full amount thereof, viz.: $9,000, and now ask to recover from the sureties on the first or general term bond the balance of the deficiency, being about $2,500, and they have obtained a judgment for that sum, which the defendants seek to reverse on this appeal.

The position of the counsel for the defendants is that the plaintiffs, by collecting the full amount of the bond on appeal to the court of appeals, exhausted the liability of the sureties on that instrument, who were primarily liable for the debt secured by both bonds, and the plaintiffs thereby discharged the sureties on the fipst bond, because such sureties were in that way deprived of the right of subrogation against the sureties on the court of appeals bond. Upon the facts herein there was no such right of subrogation.

In Hinckley v. Kreitz, 58 N. Y., 583, it was simply held in a case of this kind where there are two bonds on appeal, one to the general term and one to the court of appeals, and when each contains an agreement to pay the amount directed to be paid by the judgment if affirmed, the primary liability in the event of affirmance rests upon the sureties to the bond on appeal to this court, and that their release by the judgment creditor without payment in lull discharges the sureties in the general term bond. This is ' no such case. There has been no release, but on the contrary the sureties on the second bond have paid its full amount to the very-last penny. The counsel for the appellant claims that the first sureties were only secondarily liable, and yet' upon his doctrine their liability amounts to nothing. The effect of his argument is to deprive the plaintiffs of all benefit of the first bond. If the sureties in the second one are first proceeded against and a full recovery against them to the amount of their bond is obtained, and a deficiency still exists, the sureties in the first bond are not liable according to defendants’ argument on the ground above stated. If on the contrary they are first proceeded against and a recovery to the full amount of their bond (¿7,000) obtained, they are in that event entitled to be subrogated to the plaintiffs’ rights in the second bond to the extent of such .payment, and the plaintiffs can have only the balance of $2,000, making the $9,000 of the second bond. In this way the first sureties are in effect completely exonerated, for although they have paid the $7,000 of their bond, yet they are entitled to recover it all back from the sureties on the court of appeals bond, leaving only the balance of $2.000 on that bond for the judgment creditor.

Such a contention prevents the use of the first bond for the purpose of recovering any part of a deficiency which exceeds the amount of the' second. The creditor has simply a double security for $7,000, and the single security of the second bond for $2,000 in addition, being the full amount of the second bond. This is not the real position of the parties. The creditor has the security of the second bond and the sureties thereon are primarily liable. But the creditor has also the security of the first bond for the payment of the deficiency if it exceed the amount of the second bond, and therefore when such excess in fact exists, no injury is done the first sureties by obtaining the full payment of the second bond and resorting to them for the balance up to the amount of their own bond. There is in such event no right of subrogation, because the security to which under other circumstances the first sureties might have had the right to resort has been satisfied by the full payment thereof and the application of the proceeds to the payment of the liability for which it was originally executed.

It cannot be said that in enforcing the obligation of the sureties in the second bond, the creditor has done any act which has injured the rights of the sureties in the first bond. The defendants have therefore shown no defense to this action, and the judgment must be affirmed, with costs.

•All concur, except Finch, J., absent


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Anna V. Borden, Adm’rx, App’lt, v. The Delaware, Lackawanna & Western R. R. Co., Resp’t.

      (Court of Appeals,

      Filed March 25, 1892.)

    Negligence—Inference of, must be from facts, not conjecture.
    Deceased was a fireman employed upon a locomotive attached to a freight train, running from B. to U. in the night time, and at G. it took on a coal car next to the tender. Shortly after leaving that station the train parted, the coal car being out of repair so that it jumped up and down when in motion, but upon being recoupled proceeded, and at the next station deceased was missed and his dead body found near the spot where the train parted. Held, that the cause and manner of the death of plaintiff’s intestate was pure speculation and no facts were given on which defendant’s negligence could be predicated, and a nonsuit was properly granted.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of defendant entered upon nonsuit.

      S. M. Lindsley, for app’lt; William Xernan, for resp’t,

       Affirming 40 St. Rep., 985.-

   Gray, J.

We think that the motion for a nonsuit at the conclusion of the evidence in this case was properly granted. The most careful ‘ reading of the record reveals no fact upon which negligence in the defendant can be predicated with respect to its duty to the deceased. Everything relating to the cause and manner of the death of plaintiff’s intestate is matter of pure speculation. Of course, the inference is warranted that he fell from the train and was run over, but no inference is deducible that the accident was attributable to any neglect, or to any omission on the defendant’s part with respect to that duty and care which the law requires of it. All that is positively known is the fact of the violent death of the intestate, and that is not enough to authorize an inference of defendant’s negligence. Briefly stated, the facts were that the deceased was a fireman, and at the time was employed upon a locomotive attached to a freight train. The train was running from Binghamton to Utica, in the night time, and, at the station of Greene, took on a coal car, attaching it next to the tender. Shortly after leaving that station the train parted between the tender and this car. The train being coupled together again proceeded on its way, but soon afterwards, the deceased being missed, it was stopped at the next station and a search was made which resulted in finding the dead body within the rails at about the place where the train had become uncoupled. The evidence tended to show that the coal car was out of repair, and in such wise as to cause it to jump up and down while in motion. When the train broke apart it was found that the coupling pin had worked itself out of the link so as to cause the separation of the train at that point.

The claim of the appellant is that in the lurching forward of the engine and tender, as the consequence of the sudden separation, the deceased was thrown off and came under the moving body of the train. He argues that negligence was imputable to the dcfeiiclant in ordering a crippled car to be attached to the train; and supports the argument by reference to cases in which the employer has been held liable for the death of, or an injury to, his employees from having failed to furnish safe and proper machinery. In this case such a question does not enter. The deceased was a fireman, and his place was upon and about the locomotive. As no witness was able to tell how the accident occurred, we can only surmise with reference to it. If he had been at the rear end of the tender itself at the moment of the sudden parting of the train, we can imagine that he might have fallen upon the track, .and thus have been run over. But had he been in his place in the cab of the engine, or upon the tender, it is riot conceivable, according to the evidence, that he would have been affected by the uncoupling of the train. So it is merely a matter of mental speculation as to how the accident happened; and conjecture cannot be allowed to supply the place of the proof required to sustain plaintiff’s allegations of negligence. --

The inference of negligence which the jury may draw must be from facts which establish such a neglect of duty, or such an omission of care on the employer’s part as to have rendered the accident a possible one to the employees while in the performance of their work. That was not the case here, and conceding the force contended for the evidence by appellant’s counsel, it did not warrant more than the surmise that the deceased, having left his usual and proper place, where the occurrence of the breaking of the train could have had no such disastrous effect, had gone to the rear end of the tender for some purpose or other, and losing ■ his balance had fallen from the train.

In the absence of proof of circumstances from which a legitimate inference of negligence in the defendant could be made, and in the absence of any evidence exonerating the deceased from contributing by his own negligence to the accident, no case was made out for submission to the jury.

The judgment should be affirmed, with costs.

All concur, except Finch, J., absent


author: Pee Curiam.

text:
    Leonhardt Hilsenbeck, Resp’t, v. John M. Guhring, App’lt.

      (Court of Appeals,

      Filed March, 25, 1892.)

    1. Negligence—Landlobd and .tenant—Leaving stairway doob unlocked IN DABK HALLWAY.
    Defendant, the landlord, lived on the first floor and let the upper floors to tenants. There were three doors in the lower hallway, one opening to the cellar. A relative of one of the tenants while visiting them opened the cellar door by mistake and fell down the stairs. The door was unlocked and there was no gas light ed in the hall. Held, that the evidence failed to disclose such lack of reasonable care on the defendant’s part in the attention given to the doors or to the lighting of the hallway as to make him liable for the injury.
    2. Same—Oontbibutoby negligence.
    Plaintiff testified that it was so dark after he got hold of the door that he could not see into the space in front of him. He had never been there before but walked right ahead and fell down the stairs. Held, that he was guilty of contributory negligence.

      Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.

      Wm. J. Gaynor, for app’lt; Alfred Sleekier, for resp’t.

       Reversing 39 St. Rep., 460.

   Pee Curiam.

It seems to us that the plaintiff failed to make out a cause of action by showing either negligence on the part of the defendant or freedom from negligence contributing to the injury on his own part. As to the negligence of the defendant we cannt see upon what facts it can properly be based.

The door into the cellar was on this occasion unlocked, and there was no gas lighted in the hall. There is no allegation and ho evidence that the way leading to the cellar was improperly constructed, even if that fact were pertinent. After opening the door one could walk along the platform two or three steps before coming to the head of the cellar stairs, and so it could not be claimed that the top of thé stairs was so close up to the door that one in the exercise of ordinary care would be apt to fall down the stairs upon the door being opened, and before he would have a fair or reasonable opportunity to notice what was in front of him.

The defendant was under no greater obligation to the plaintiff than if he occupied the position of tenant himself. The plaintiff was a guest of the tenant, and hence was entitled to the same amount of care that a tenant would be entitled to.

We cannot see that there was any obligation on the part of the defendant to keep the hallway lighted or to keep the cellar door locked at the peril of becoming responsible for an accident such as has happened in this case. We are of the opinion that the evidence fails to disclose the lack of reasonable care on the defendant’s part in the attention given to these doors or to the lighting of the hallway. Assuming his liability for a failure to exercise the requisite care and attention in managing this part of the building so as to avoid the improper exposure of the tenants or their visitors to harm, yet we think it clear the facts do not establish such want of care, nor should a jury be permitted to draw an inference of negligence from the conceded facts. The defendant was no insurer of the safety of plaintiff, and the mere failure to light the gas and to keep the cellar door locked did not sustain the allegation of negligence. Again, on the plaintiff’s part ho was clearly guilty of negligence contributing to the injury. He says it was dark and after he got hold of the door in question it was so dark he could not see into the space in front of him. He had never been there before, and he had no information which might mislead him or cause him to think there was but one and that the door into the closet. He knew nothing about it, and in that state of ignorance he bpens a door which he thought was the one leading to the closet, but it being dark he could not be certain, and notwithstanding the darkness he walks ahead and while supposing himself in the closet steps to the head of the stairway and falls down the cellar stairs. In such case and in the darkness he should not have proceeded in a perfectly strange place without a light or in some way taking precautions which would have enabled him to proceed in safety. There is no presumption that a man can walk through all doors he comes to in such a house without looking and in safety, and hence if one do come to a door in a hallway under such circumstances as this case shows, he cannot walk through it in darkness and claim damages for the resulting injury.

The plaintiff has doubtless sustained a very severe injury, one of a permanent nature and one from which he has without doubt suffered great pain, but we do not think the injury he has sustained is one for which the defendant can be legally made liable, and hence the recovery in favor of the plaintiff cannot be sus: tained.

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

All concur, except Finch, J., absent.'


author: Landon, J.

text:
    George Bork, Resp’t, v. Alexander Martin, App’lt.

      (Court of Appeals, Second Division,

      Filed March 25, 1892.)

    Deed—Statute oe uses and trusts— Conversion.
    Prior to a sale on foreclosure, B., who was a tenant In common of the . property, made an agreement with one Box to buy in his interest, and hold it as security for a debt, and in accordance therewith Box and the other owner D. purchased at the sale. Subsequently D. commenced a partition suit when it was agreed that Box and D. should convey to defendant, who should hold the land in trust and convey the same to such persons as the owners should designate. Such conveyances were executed but defendant paid nothing therefor. Under a further agreement plaintiff.paid the debt to Box and became the owner of B.’s interest, and from time to time plaintiff negotiated the sale of lots and defendant executed deeds to the purchasers, but the last five parcels of the land defendant refused to convey unless he received the purchase price, and subsequently refused to pay the same to plaintiff. Held, that defendant could not with the avails of his agency in his pocket dispute his agency or his principal’s power to appoint him, and his refusal to pay over the money constituted a conversion thereof.
    2. Same.
    Though the statutes of frauds and of uses and trusts might have justified defendant’s refusal to dispose of the land as he orally agreed, yet having disposed of it, he becomes a trustee of plaintiff’s personal property, and the court will not allow the statute of frauds to be used as an instrument of fraud.
    Appeal from a judgment of the general term of the superior court of Buffalo for plaintiff upon a verdict for plaintiff for $980, directed by the trial court, which ordered the exceptions to be heard in the first instance at general term.
    September 7, 1883, Henry Box held the legal title to certain lots of land in Buffalo, but in fact and 'as conceded by him, as security for the indebtedness of Jos. Bork to him in the sum of $4,000! Jos. Bork was about to leave Buffalo for a long absence, and he desired to transfer his equity to the plaintiff, and have the plaintiff assume the payment to Box ; he requested Box to convey the lands to the defendant upon the plaintiff’s agreement to pay Box $4,000. This plaintiff agreed to do. Box then conveyed the lands to the defendant and plaintiff subsequently paid Box the $4,000. As part of the transaction, the plaintiff and Jos. Bork orally agreed with the defendant that the latter should hold the lands for the sole use and benefit of the plaintiff and subject to his direction respecting the sale of it, or any part of it, and pay him the proceeds of such sales, and the defendant received the deed from Box in pursuance of the oral agreement.
    The defendant neither paid nor agreed to pay any consideration for the deed or lands. From time to time the plaintiff negotiated sales of lots, parcels of the entire premises, and upon his request defendant executed and delivered deeds thereof to the respective purchasers and paid plaintiff the proceeds. But about May 1,, 1888, plaintiff having negotiated the sales of five lots more, the defendant refused to execute the deeds to the purchasers unless the consideration should be paid to him.
    Plaintiff in order to obtain the deeds for the purchasers advanced the consideration and upon defendant’s direction delivered it to the defendant’s wife. Whereupon defendant delivered the deeds for the purchasers. Plaintiff afterwards demanded of the defendant payment of the $1,980, which being refused, this action was brought. The complaint alleged plaintiff’s equitable ownership of the premises, that they were conveyed by Box, to defendant, upon a trust substantially as above set forth, the sale of the premises, the receipt by defendant of the purchase money and his refusal to pay the same to plaintiff.
    The complaint further alleged that the defendant “ has fraudulently and dishonestly appropriated the said moneys and converted them to his own use.”
    The answer was a general denial.

      Adelbert Moot, for app’lt; David, F. Day, for resp’t.

       Affirming 33 St. Rep., 659. ■

   Landon, J.

Joseph Bork, originally having an equity in the premises, and being indebted to Box for about $4,000, requested Box to take the legal title as security for the debt, and also to protect Joseph’s equity. Box consented, and although the deed to himself was absolute he treated it as a mortgage from Joseph, and in equity it was a mortgage. Carr v. Carr, 52 N. Y., 251. Afterwards Joseph and his brother, the plaintiff, agreed that the plaintiff should pay Box the mortgage debt, and for that and other considerations plaintiff should have Joseph’s equity in the land. Box consented. To accomplish this Box conveyed the land upon Joseph’s and the plaintiff’s request to the defendant, who, paying no consideration, orally agreed to hold the title for plaintiff’s convenience and benefit. The plaintiff paid Box the mortgage debt. The premises consisted of twenty-five building lots. Defendant agreed to convey the same upon plaintiff’s request to such purchasers as the plaintiff should procure and to pay the purchase money as received to the plaintiff.

The agreement was fully performed by the defendant except that after conveying pursuant to plaintiff’s request twenty of the lots and paying him the purchase money received, or allowing him to receive it himself, and finally conveying the last five lots pursuant to the like request and receiving the purchase money, the defendant then refused to pay it to plaintiff.

Thus the present controversy is not in respect of the land, for that has been properly disposed of, but in respect of the purchase money received by the defendant for the last five lots sold.

Assuming that the land was conveyed to the defendant upon an oral trust invalid under the Statutes of Frauds and of Uses and Trusts, 2 R. S., 134, § 6; 1 R. S., 728, § 51, yet it was lawful for him to perform it, and he has fully performed it so far as it required hjm to dispose of the land. The land is all sold, and he has the price of the last five lots in his pocket. The language of the cases is to the effect that he cannot in good conscience retain it, and that it belongs to the plaintiff. Robbins v. Robbins, 89 N. Y., 258; Dunn v. Hornbeck, 72 id., 80 ; Foote v. Bryant, 47 id., 544.

Though the statutes might have justified the defendant’s refusal to dispose of the land as he had orally agreed, yet, having disposed of it, he has voluntarily emerged from the field of their protection and exposed himself to the law which deals with him as a trustee of personal property realized for plaintiff’s benefit, by virtue of an agency for the plaintiff which he has so far performed pursuant to the plaintiff’s instructions and his own agreement as to obtain the moneys his agency was constituted to produce. Equity approves his performance so far as he has performed, and as the statutes referred to no longer apply, there is no law which he can invoke to shield him from the full performance of his duty.

The court will not allow the Statute of Frauds to be used as an instrument of fraud if it .can prevent it. Cases supra; Ryan v. Dox, 34 N.Y., 307; Levy v. Brush, 45 id., 596; Siemon v. Schurck, 29 id., 598.

8Here the defendant co-operated with the plaintiff for years in the execution of the agreement entered into for plaintiff’s benefit, plaintiff the while performing the active labor of negotiating the sale of the lots in full reliance upon defendant’s fidelity. In the end, when the fruits of the enterprise have come to defendant’s hands ready for delivery to the plaintiff, the defendant halts in his fidelity and seeks to appropriate to himself what he agreed to deliver to the plaintiff. He thus seeks to perpetrate a fraud. It is the duty of the court to prevent it.

When the defendant says that it is not fraudulent to refuse to perform a contract which the statute declares to be void, the answer is that he is not charged .with a refusal to perform that part of the contract; he has voluntarily performed it. A trust in the money may be established by paroi. Day v. Roth, 18 N. Y., 448; Robbins v. Robbins, supra. So, too, when the defendant says this money is the proceeds of the sale of his own land, the reply is, that the money is the proceeds of the land which plaintiff entrusted to the defendant to sell for his benefit; that the defendant cannot, with the avails of his agency in his pocket, dispute his agency or his principal's power to appoint him, Supervisors of Rensselaer Co. v. Bales, 17 N. Y., 242; that the statutes relate to land, not to money; that since the defendant has waived his ■.statutory protection and converted the. land into money, the court will accept both his waiver and performance so far as he has accomplished them, and take up his agency at the point where he has repudiated it; and since it would be unjust to treat the money as land and thus allow the defendant to recede from his honest performance, the court will not permit it.

The same equitable considerations defeat the application of the statute which declares that where the grant is to one person and the consideration paid by another no trust results in favor of the latter. The plaintiff seeks to establish no resulting trust in the land. The voluntary performance of the defendant has carried the case beyond that stage, and the trust is in the money which the facts show the defendant received for plaintiff’s benefit. It is -simply a question whether the defendant can ex cequo et bona refuse to pay it to plaintiff. The defendant’s argument is that if the plaintiff had no equity or estate in the land, he can have none in its proceeds. The common law gave a resulting trust in the .land which but for the statute would have vested in the plaintiff. Upon grounds of public policy, none of which is violated by this • case, the statute forbade such a concealment of title. The plaintiff, let us assume, paid the consideration for this grant, which vested in the defendant both the interest of Box, as mortgagee, and the equity of Jos. Bork, as mortgagor. Under the circumstances it was inequitable for the defendant ta refuse to recognize the oral trust which he assumed. So long as he held the title to the land he might have invoked the protection of the statute. But pursuant to his oral trust he converted the land into money. The law, perceiving that to hold otherwise would promote injustice, says to the defendant, you had the statutory protection so long as you kept the property entrusted to you within its terms, but you have voluntarily and justly converted it into money and thus with•drawn it from the shield of the statute. The plaintiff converted his money into land and allowed you to hold the land exempt .from the legal trust and bound only by the moral one. He thus voluntarily placed his property beyond his legal reach. You have now voluntarily re-converted it into money and thus replaced it within his legal reach. It was his originally, in good ■conscience it was his when the statute enabled you to deny his right; it is now in good conscience his with the statutory bar to his taking it voluntarily removed by you. Justice desires to .award it to him and thus finds its way to do it.

If the defendant should say that he now can keep the money because he might once have kept the land, still the plaintiff can •say with better justice that he is now entitled to the money, because it was originally his, and though he voluntarily suspended his right to it for a season, he did so without lawful consideration .and in confidence that when it could be restored to him it would be. That time has come and there is no obstacle to its restoration.

The allegation in the complaint that the defendant “has fraudulently and dishonestly appropriated the said moneys and converted them to his own use,” is an unnecessarily strong characterization of defendant’s refusal to pay them over to the plaintiff, We do not think the pleader intended to frame his complaint as for trover and this characterization may be rejected and still leave: stated the cause of action upon which the recovery was had.

The objection 'that the plaintiff voluntarily paid the purchase-money to defendant’s wife upon defendant’s request, is not supported by the facts. The defendant had the right to receive the purchase money in the first instance, and therefore the right to refuse to let the deeds go out of his hands until it was paid to him. The plaintiff had the right, if he chose to do so, to advance-it for the purchasers. The defendant simply received what he had the right to ask in his capacity as agent, namely, payment of the purchase price upon delivery of the deeds.

By adding to that right an unfounded claim did not convert? the satisfaction of the claim properly made into a concession o£ the improper one.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Brown, J.

text:
    Charles F. Carlson, App’lt, v. The Phenix Bridge Company, Resp’t.

      (Court of Appeals, Second Division,

      Filed March 25, 1892.)

    1. Master and servant—Negligence—Breaking oe iron hook.
    Plaintiff was injured through the breaking of an iron hook used ins hoisting an iron girder. The hook had been made by defendant’s blacksmith from the best grade of iron in the market. It had been used three-months for a similar purpose and there was nothing in its external appearance to indicate that it was weak or that the material was not of the best quality. The break resulted from crystalization in the iron, not discoverable by external examination. Held, that defendant was not negligent in-omitting to apply to the bar of iron from which the hook was made the-, test of cutting and breaking or bending.
    2. Same.
    An employer must see that the work he undertakes to do is properly-performed, but if a tool made from the best refined iron breaks from an> internal defect in the material not apparent from an external examination: of the iron or in the process of making the tool, the master is no more responsible than he would be if he had purchased it ready made in the market or if it had broken from an external apparent defect produced by . use, of which he was not chargeable with knowledge.
    Appeal from a judgment of the general term of the second-judicial department, which affirmed a judgment entered upon a dismissal of the complaint.

      J. Edward Swanstrom,-for app’lt; A. B. Boardman, for resp’t.

       Affirming 29 St. Rep., 553.

   Brown, J.

The plaintiff was an employee of the defendant engaged in the construction of an elevated railway in Fulton street in the city of Brooklyn, and while in the performance of his duties was injured by the fall of a heavy iron girder, and! brought this action to recover damages sustained from such, injury.

For the purpose'of lifting the heavy girders from the street to. the elevated position they were to occupy in the structure, the de.iendant used a movable derrick operated by steam power. The hoisting apparatus included a chain and hook.

The plaintiff described the customary method of raising the ¡.girders as follows : The hook was fastened into the girders first so as to raise them on edge and then enough power was applied to raise them clear of the street so that they could be placed on blocks. After they were placed on blocks under their proper ■position in the structure other tackle was used, the hook and ■chain being dispensed with, and they were raised into their permanent position.

The immediate cause of the accident which injured the plain tff was the breaking of the hook when the girder was being raised tfrom the street, and the negligence charged upon the defendant was its failure to furnish a hook strong enough to sustain the weight of the girder. The hook in question was one of a number (testified to be eight or more) made for use in the work of building the railway by a blacksmith in the defendant’s employ. They were made about three months prior to the accident from a bar of iron twenty-four feet long and one and three-quarter inches in diameter purchased by defendant from Manning, Maxwell- & Moore, reputable dealers .in iron and ordered as the “ best refined,” which was the best grade of iron, in the market. All .of the hooks had been used in raising similar heavy girders, and none of them were shown to have been weak or insufficient for the work requirecLof them.

The 'one in question had been used during the three months previous to the accident to lift about two hundred girders similar to the one which fell upon the plaintiff, and there was nothing in its external appearance to indicate that it was weak or that the ¡material was not of the best quality.

After the accident the iron at the point of fracture was discovered to be bad. The break was square across the shank and presented a bright appearance without rust, and the proof tended to the conclusion that it resulted from crystalization in the iron, which could not have been discovered by an external exanli nation. It was not discoverable in the process of making the hook, .and when delivered to the employees for use it was supposed to be of the best material.

The appellant claims and gave evidence to the effect that a -customary test to ascertain the quality of a bar of iron could have been made by the blacksmith by nicking or cutting notches in the bar when cold with a chisel or cutter and then breaking it, or by bending it over an anvil. That if broken the grain of the iron would have been disclosed, and by bending it, if crystalized it would break, but if fibrous it would bend. But it was conceded that such a test could not be applied to the particular piece of iron which was used in making the hook without either destroying it or greatly impairing its strength and efficiency. These tests were not applied to any part of the bar in question.

It appeared from uncontradicted testimony introduced by the defendant that all refined iron is subjected to frequent tests during the process of manufacture, and represents in the market the highest efficiency of the manufacturer’s skill, and that subsequent to the accident to the plaintiff a piece'of the bar in question,, reduced in diameter to one and one-half inch, was tested, and. shown to have a breaking strength of forty-six tons, or more than four times the weight of the girder by which plaintiff was injured.

This statement of the facts brings us to the point of difference-between the parties at the trial.

The plaintiff claimed that the defendant was negligent in omitting to apply- to the bar of iron from which the hook was-made the test of cutting and breaking or bending, which he-claimed would, had it been made, have disclosed the bad quality of the material.

The defendant contended, (1), that it was justified so far as-the quality of the iron was concerned in relying upon the fact, that it was sold in the market as the best refined by a reputable-merchant, and, (2), that the defect being a latent one, and confined so far as the testimony shows to a very small part of the bar, that, the jury would not have been authorized to find that the tests, aforesaid, if they had been made, would have disclosed the defect, complained of.

The rule contended for by the appellant has been applied in-cases of injury to passengers. Hegeman v. The Western Railroad. Corp., 13 N. Y., 1, was a case of the breaking of the axle of a car. The defect in the iron was latent, and could not have been discovered by any external examination. This court held that the-defendant was liable for any defect happening during the construction of the car and axle which could have been detected by the manufacturer, though it could not have been detected after they were completed. But the contrary was held in Ingalls v. Bills, 50 Mass., 1, which was a case of injury to a passenger in a stagecoach "caused by the breaking of an iron, axle from an internal defect not apparent by external inspection, and a judgment for the-plaintiff was reversed, the court holding that the defendant was. not liable' when the accident arose from a hidden and internal defect not apparent to a careful examination and the' exercise of a. most vigilant oversight.

Hegeman’s case presents an extreme application of the rule governing the liability of common carriers of passengers. But the rule applicable in'cases of master and servant is more favorable.to the master. Reasonable care and not the highest efficiency which skill and foresight can produce is the measure of the-master’s liability, and he performs his whole duty by using as-much care in the selection of materials for the use of his servants as a man of ordinary prudence in the same line of business would, acting with regard to his'own safety, use in supplying similar things for himself were he doing the work. Marsh v. Chickering„ 101 N. Y., 396; Shearman & Redfield on Negligence, § 195.

A master who puts a tool or implement into his servant’s hand" may procure it in several ways. He may buy it ready made of a dealer, procure it to be manufactured or purchase the materials, and manufacture it himself. Liability for an injury resulting from a defect in the materials of a tool will be determined by the same rule in each case. If a hook. like the one used in the present-case had been procured ready made in the market or manufactured at a foundry, the defendant would necessarily have been compelled to rely upon the dealer and manufacturer for the quality of materials used. A completed hook ready for use could neither be cut into with a chisel or bent over an anvil without impairing its strength or perhaps destroying it altogether. A test of that character applied to one of a lot would be no guaranty of the quality of the .others. To apply such a test therefore to tools procured in that way is impracticable and such articles are not usually tested before they are put in usa The modern industrial system rests upon confidence in others. A railroad corporation cannot well apply such tests to the materials of which its cars and engines are made or to the rails which form its tracks. Reasonable-inspection is necessary and required. But when articles are manufactured by a process approved by use and experience and apparently properly finished and stamped, it is not usual for them-to be tested again in quality, and such examinations are not generally required by law. If materials of the best quality are purchased and tools constructed from them by competent and skillful workmen, and if there is nothing in the appearance of the material to indicate inefficiency, men in the. ordinary affairs of life use them and place them in the hands of their servants, and there were no circumstances surrounding the manufacture of the hook in question to induce a prudent man to depart from the usual-course or to adopt extraordinary care and precaution.

All the best iron and steel is made in a few large establishments. The evidence shows that all practicable tests are used during the process of manufacture and the completed product represents the best article that can be produced. It passes into the hands of dealers and so reaches the consumer. If the best refined iron is required, the purchaser may assume that the tests-necessary to produce that article have been properly made and the work properly done. He must see that the work he undertakes to do is properly performed, but if the tool breaks from an internal defect in the material, not apparent from an external examination of the iron or in .the process of making the tool, the-master is no more responsible than he would be if he had purchased it ready made in the market or if it had broken from an-external apparent defect produced by use, of which he was not chargeable with knowledge.

The evidence in the case shows that the several hooks made by the blacksmith were made from a piece of iron about eighteen inches long, cut from the bar purchased by the defendant’s superintendent Of the hooks other than the one which broke, it appears that they were used in lifting the heavy girders which formed a part of the structure for the railway. Hone of them were shown to. have broken or to have been weak or defective. The piece of the bar not used was shown to have been of the best, quality and that it possessed an elasticity and strength far beyond that required in lifting the girder in question. The hook that ■broke did so from a weakness in the iron at the particular point ■of fracture. There is no evidence to show that the bad quality of the iron there observable extended to any other part of the bar, •and it is obvious, we think, that if the test of cutting and bending the bar while cold had' been applied it could not necessarily have disclosed the defect in question. The evidence does not show what part of the bar the piece of iron from which the hook was manufactured was taken, and if the cutting test bad been applied to either end or the middle of the bar, the jury could not have found that it would have disclosed the defect complained of. A ■conclusion that the defect would have been discovered would have had no other basis than speculation or conjecture, and evidence of that character would be insufficient to sustain a judgment.

We are of the opinion that the complaint was . properly dismissed and the judgment must be affirmed.

Judgment affirmed, with costs.

All concur.


author: Follett, Ch. J.

text:
    Thomas Nelson, App’lt, v. Sarah E. Loder, Resp’t.

      (Court of Appeals, Second Division,

      Filed March 25, 1892.)

    Tender—Mortgage—Interest.
    A subsequent lienor’s right to redeem a prior security is derived from the owner of the mortgaged premises, and he is in this respect in no better •position than the owner, and a tender by him, if he wishes to stop interest or compel an assignment of the prior lien, must be as absolute and specific as that which the owner is compelled to make as a ground for affirmative relief or to stop the running of interest.
    Appeal from a judgment of the general term of the second judicial department, modifying a judgment entered upon a decision of the special term.
    April 3, 1876, Josiah Gr. Clark being indebted to The Manhattan Life Insurance Company in the sum of $18,000, executed and ■delivered a bond to said corporation, whereby he bound himself to pay said sum with interest one year after date, and he and Esther, his wife, on the same day executed and delivered to said corporation a mortgage on the land described in the complaint (which the mortgagor then owned in fee) to secure the payment of said •sum. The mortgage was duly recorded April 5, 1876. On the 27th of April, 1878, said Josiah Gr. Clark and Esther, his wife, conveyed the premises to Ada E. Briggs subject to the ■amount then unpaid on the bond and mortgage, and she entered into possession of the land, and ever since has remained in pos•session thereof. September 18, 1878, said mortgagee sold and •assigned the bond and mortgage to Charles F. Brown, who, June •3, 1879, sold and assigned them to Sarah E. Loder. Both assignments were duly recorded prior to September 25, 1880, on which clay Sarah E. Loder began an action to foreclose, the bond and mortgage, making Ada E. Briggs a party defendant. When the foreclosure action was begun there was due and unpaid on the bond and mortgage $3,808.11, with interest from July 1, 1880.

      On the 18th of October, 1880, said Ada E. Briggs executed and delivered to Thomas Nelson, the plaintiff in this action, a mortgage on said premises to secure the payment of $500, with interest, April 1, 1881, which mortgage was recorded June 12, 1888. On the 18th of October, "J888, Thomas Nelson called on Sarah E„ Loder, exhibited to her his mortgage and tendered to her a sum sufficient to pay the amount 'due on her mortgage, with costs of the foreclosure then accrued, and demanded that she assign her bond and mortgage to him, which she refused to do. The tender was not kept good, but the money was deposited by the plaintiff' in his general account in a bank. October 23, 1880, this action was begun to compel the defendant to accept the amount due on-her bond and mortgage, with the accrued costs of foreclosure, and to assign the securities to the plaintiff and to restrain her from-prosecuting her action to foreclose them. A temporary injunction was issued. The defendant answered that she had judgments which were liens on the premises subsequent to her and prior to the plaintiff’s mortgage, and that she was willing to-accept payment of the amount due on her mortgage and cancel the same, and averred that she had offered so to do before this action was begun. The action was brought to trial December 8, 1888, before a special term, which held that the plaintiff was-entitled to an assignment of the bond and mortgage on the payment by him of the amount due for principal, interest and costs-accrued on the 18th of October, 1888, the date of the tender, for which relief a judgment was entered, with $284.98 costs to the plaintiff.
    On appeal to the general term the judgment was modified so-that it provided that the plaintiff, upon the payment of $3,808.11, with interest thereon from July 1, 1880, up to the time of payment, together with the costs which had accrued in the foreclosure action, should be entitled to an assignment of the bond and mortgage. That part of the judgment awarding costs to the plaintiff by the special term was reversed, and no costs were allowed to either party in the- general term. From that judgment the plaintiff appealed to this court.

      Thomas Nelson, for app’lt; A. S. Cassedy, for resp’t.

       Affirming 28 St. Hep., 685.

   Follett, Ch. J.

Whether the defendant is. entitled to interest on the debt secured by her bond and mortgage to the date when she shall be paid by the plaintiff, or only to October 18, 1880, the date of the tender, is the only question involved in this appeal. In case the whole amount secured by a mortgage is due, the tender of the sum unpaid by the owner of the mortgaged premises extinguishes the lien of the' mortgage, though the -tender is not kept good, but it does not discharge the promise or covenant to-pay the debt for which the debtor remains liable. Kortright v. Cady, 21 N. Y., 343; Werner v. Tuch, 127 id., 217; 38 St. Rep., 136; Mitchell v. Roberts, 17 Fed. Rep., 776, 783; Haynes v. Thom, 28 N. Y., 386, 400; Chitty on Contracts, 12th ed., 787; Jones Mort., § 886. If a debtor wishes to extinguish his liability for subsequently accruing interest or demands some affirmative relief he cannot retain the money subject to his own use, but must devote it to the specific purpose of paying the debt and put it within the power of the creditor to receive it at any time. He must keep his tender good. Tuthill v. Morris, 81 N. Y., 94, 100; Harris v Jex, 55 id., 421, 425; Gyles v. Hall, 2 P. Wm., 378; Bishop v. Church, 2 Vesey, Sr., 371; Garforth v. Bardley, 2 id., 678; Stow v. Russell, 36 Ill., 18; Jones Mort., § 892; Thomas Mort., § 399; Goote Mort., 4th ed., 885.

A subsequent lienor’s right to redeem a prior security is derived from the owner of the mortgaged premises, and he is, in this respect, in no better position than the owner, and his tender, if he wishes to stop interest or compel an assignment of the prior lien, must be as absolute and specific as that which the owner is required to make as a ground for affirmative relief or to stop the Tunning of interest.

The judgment should be affirmed, with costs.

All concur.


author: Lewis, J.

text:
    Delos T. Johnson, Adm’r, App’lt, v. George P. Johnson and Devillo M. Johnson, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)
    Evidence—Foreign judgment.
    In proceedings instituted under the statute of Michigan, the defendants and others filed claims against the estate of their father, in which they obtained judgment against this plaintiff allowing such claims. Plaintiff was afterwards appointed administrator by the courts of this state. In an action to set aside a deed made to defendants by their father, in consideration of love and affection, by which he is claimed to have rendered himself insolvent. Held, that such judgment affected only the assets in Michigan, and was not admissible in favor of plaintiff as evidence of indebtedness.
    Appeal from a judgment entered upon a referee’s report in the Erie county clerk’s office, April 28, 1890, dismissing the plaintiff’s complaint, with costs.
    This appeal was before this court at a prior term, and the judgment appealed from was affirmed. A reargument was ordered upon the application of the appellant.

      George L. Kingston, for applt; William, H Clark, for resp’ts.
   Lewis, J.

This action was brought in the supreme court, Erie ■county against the defendants, under chap. 314 of the Laws of 1858, by the plaintiff, as administrator of the estate of John Johnson, deceased, for himself, as administrator, and on behalf of the creditors of Johnson, to set aside a deed of real estate in Erie county, given by Johnson, deceased, to the defendants, in consideration of love and affection only, and rendering himself thereby insolvent. The case was tried before a referee, and judgment was rendered dismissing the plaintiff’s complaint, and from that judgment this appeal was taken.-

The deceased, John- Johnson, was formerly a resident of Erie ■county in this state. He owned the premises described in the ■complaint, situated in Erie county; he also owned a small .amount of personal property in the county of Erie, worth less than $200. A few months prior to his death he removed to the county of Genesee, in the state of Michigan, where his four sons ■ and one daughter then lived. He died there intestate on the 1st day of October, 1887, leaving him surviving his five children, two of whom are the defendants in this action. A day or two before his death he conveyed to the defendants the farm in Erie ■county of the value of about two thousand dollars. He had at the time of his death only some trifling articles of personal property in the state of Michigan.of the value of twenty-two dollars.

On the 7th of November, 1887, letters of administration were ■duly issued and granted to the plaintiff by the probate court of Genesee county in the state of Michigan, appointing him administrator of the goods, chattels, etc., of said deceased, within the state of Michigan. Thereafter, and on January 31, 1888, ancillary letters of administration of the estate of Johnson were granted to plaintiff by the surrogate of Erie county. On the 7th of November, 1887, the probate judge of Genesee county, in "the state of Michigan, nominated and appointed three commis.sioners, with full power and authority to receive, examine and adjust all claims and demands of all persons against the estate of -Johnson. In due time the defendants Devillo M. Johnson and George P. Johnson, and Homer L. Johnson and Evaline J. Pierce, respectively presented claims against the estate of their father to :said commissioners. The commissioners duly examined into the •claims, and determined that the deceased was indebted at the -.time of his death in the sum of $300 to the defendant Devillo M. Johnson, $25 to the defendant George P. Johnson, $192 to Homer L. Johnson, and $125 to his daughter Evaline J. Pierce; .■-and they made and filed a report of their doings with the probate court as above stated. No appeal was taken from the report, and their decision under the Michigan statute became .final.”

Thereafter and on'or about the 1st of November, 1888, this action was commenced by the plaintiff, and upon the trial thereof before the referee, plaintiff offered in evidence an exemplified ■copy of the records of the said proceedings in the state of Michigan, for the purpose of establishing that the deceased was indebted as stated in the commissioners’ report at the time of his decease. No other evidence of indebtedness was given ; the referee held that the record was not evidence of the indebtedness of the deceased here, and that the plaintiff had failed to make a case and dismissed the complaint. The question presented by this appeal is whether, as against these defendants, the record was evidence that the deceased was indebted as reported by the commissioners .at the time he executed the conveyance.

The statutes of Michigan provide for the appointment of commissioners in such eases, and authorize them to receive and allow claims against estates; their decision when filed in the office of the probate court, if not appealed from within six months, becomes final, and forms the basis upon which the probate judge makes distribution of the assets of the estate.

The statute makes no provision for any confirmation of the commissioners’ report by the probate court. The commissioners, act judicially in the allowance of claims and as between the parties to the controversy, and as to the payment of the claims out of the estate in the control of the probate court, the decision has the-effect of a judgment in that state. It cannot be collaterally impeached by the parties thereto. Shurbun v. Hooper, 40 Mich., 503.

The proceeding in the state of Michigan was for the purpose of reaching and distributing the assets of the'deceased in that, state. When that was accomplished, it was no longer effectual for any purpose.

The judgment .or decree was against the plaintiff in his representative capacity. Had it been a judgment rendered in this state against an administrator appointed here, it would not be evidence against the grantees in an action to set aside a conveyance as. fraudulent, brought by such judgment creditors. Sharpe v. Freeman, 45 N. Y., 802.

The revised statutes of New York give no competency to judgments against executors and administrators as evidence against, heirs-at-law or grantees; such judgments remain a debt to the same extent as before they were recovered, to be established as if judgment had not been obtained. The heir-at-law may still contest the validity and legality of the debt; such a judgment does not-, bind the real estate of the deceased. Sharpe v. Freeman, supra.

The record could not be used as evidence in behalf of the creditors against the administrator in this state. The judgment was against the plaintiff in his administrative capacity only; his representation of the estate was a qualified one; it did not extend beyond the assets of which the court in that state had jurisdiction. Johnson v. Powers, 139 U. S., 156; Halsted v. Buster, 140 id., 278.

¡While the plaintiff represented, the estate in Michigan and also-in New York, he was simply a representative in each state; he had no personal interest in the assets, and if, in a proceeding-against him in this state in his representative capacity, the record would not be, as we have seen, evidence against him, it could not. be used in his behalf.

The administrator of the estate in New York is a stranger to* the Michigan'judgment, as are also the grantees of the realty here.

In the case of Taylor v. Barron, 35 N. H., 484, in a well considered opinion, Judge Bell holds and cites a number of authorities-in our court, as well as in the courts of England, to sustain his-conclusion that an administrator appointed in one state has no-power over the property of the intestate in another state ; that he-cannot be sued elsewhere on a judgment again'st him rendered in the state where he was appointed. That upon the principles of the common law a judgment -rendered in one state for or against, an administrator there appointed is res inter alios as to an administrator appointed in another government, and as to the assets under his control there. There may be several representatives of the same deceased person; the administrator or executor as to the per■sonal estate, and the heirs as to the real estate; bat the administrator cannot bind the heirs by his acts in pais, or in court, as to the-indebtedness of the estate. An admission by the heirs does not bind the administrator, nor the- reverse, and a judgment in favor or against either “ is not evidence for or against the other.” The fact that the defendants were parties to the proceedings in Michigan does not make the judgment admissible evidence against them here. The administrator represented the estate subject to the administrative laws of that state. He also represented the •creditors and legatees in respect to the estate in Michigan, but he is in no way bound by the determination there in respect to the others regarding the estate here.

It is true that the defendants presented their claims to the Michigan tribunal, and they were allowed; but that proceeding was for the purpose simply of distributing the assets in that state. The administrator in his action here does not represent the defendants, for their interests are hostile to his action here.

The decision in Johnson v. Powers, 139 U. S., 156, is an authority upon the doctrine stated there, and applies to this case, and warrants the holding that the judgment in Michigan is not admissible evidence here, although offered by the administrator himself in such an action as this. It is not evidence against these ■grantees. If, as we have seen, the Michigan record was not evi•dence of indebtedness of the deceased, the plaintiff failed to show that at the time the conveyance was made the deceased owed • debts; he therefore failed to make a case, 'and his complaint was properly dismissed.

The judgment appealed from should be affirmed, with costs.

Judgment affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


author: Macomber, J.

text:
    Almira Rowland, Resp’t, v. Carpenter R. Sworts, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Fixtures—Building—Right op builder to remove.
    In the absence of an agreement between the owner of premises and a builder that in case of non-payment the building should belong to the. builder and could be removed by him, the builder has no right to remove it, as against a prior morrgagee of the realty, although it stands on posts. If he purposes to maintain a lien on the property his remedy is under the mechanics’ lien law.
    Appeal by the defendant from an order denying his motion for a new trial made upon the minutes of the court at the Yates •circuit, held in the month of May, 1891.

      M. J. Sunderlin, for app’lt; M. A. Leary, for resp’t.
   Macomber, J.

This action was brought to recover the dam.■ages sustained by the plaintiff for the unlawful removal and conversion by the defendant of a house standing on the premises of •one Wainwright, upon which lands the plaintiff held a mortgage of a date prior to the erection of the building.

■ The plaintiff conveyed the lands upon which the house was situated to Wainwright August 30, 1889, for the sum of $900. On the same day the purchaser executed and delivered to the seller a mortgage in the sum of $1,654.17, payable in instalmentsof $100 annually through a period of fourteen years, and the balanee in one other payment, together with interest payable annually upon all sums unpaid. The amount of the excess of the-mortgage over the purchase price of the premises is accounted for upon the ground of a loan made to the defendant by the plaintiff. The defendant, under a contract made between him and Wainwright, erected a building upon these lands, and placed it upon posts, rather than upon mason work. It is now claimed that this-was done under an agreement between him and Wainwright, by which the defendant shopld retain the ownership of the building, together with the right to remove it whenever he saw fit, until he should be fully paid for it by Wainwright. This was the principal question at the trial, and was purely one of fact. After the removal of the house by the defendant, the plaintiff elected, under an option clause contained in the mortgage, that the whole of the mortgage debt should become due, whereupon the mortgage was foreclosed, and the property sold, and bid in by her at the sale, leaving a deficiency.

The verdict of the jury in favor of the plaintiff upon the issue-relating to the agreement and intention of the parties is sustained by a clear preponderance of evidence, and by the proper deduction.made therefrom. In removing the building, it appears that, the defendant and Wainwright acted upon the erroneous assumption that, inasmuch as the building rested upon posts, it was competent for the defendant to remove it at any time irrespective of any antecedent agreement between the parties. Such, however, is not the rule of law. The real question in the case, which was submitted to the jury very properly by the learned justice at the trial, was, whether at the time of the erection of it, the then owner of the premises, Wainwright, and the defendant intended that in case of nonpayment by Wainwright of the materials used and the labor, the defendant should have the right to remove the building. Upon this issue the verdict was against the defendant. Had the defendant, in the absence of an agreement of that nature, .purposed to maintain a lien upon the property, his remedy was under the mechanics' lien law, and not through the means adopted by him in this instance for the summary removal of the house from the mortgaged premises.

The order denying the defendant’s motion for a new trial was properly made and should be affirmed.

Order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


author: Dwight, P. J.

text:
    In the Matter of the Settlement of the Accounts of Eliza Wesley, Ex’rx of Benjamin Strickland, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Will—Perpetuities—Bequest to corporations.
    Testator by his will gave sums of money in trust to the trustees of certain religious societies for the support of the pastors in charge; to the managers of the Home for the Friendless, the income to he applied to the benefit of the institution, and to the De Veaux College, the interest to be applied to the education of some worthy boy or boys, expressing a preference for certain classes of boys, but providing that the beneficiaries might be received in the same order and under the same conditions as other beneficiaries were received under the will of Judge De Veaux. Held, that the gifts were to the corporations and institution, and were for one or more of the purposes of the incorporation of the institution to which it was made, and hence they were not repugnant to the statute of perpetuities.
    Appeal by the heirs at law and next of kin of the deceased from a decree of the surrogate of Erie county settling the accounts of the executrix and directing a distribution of the estate in ■accordance with the provisions of the will.

      Howard & Clark, fór app’lts; H P. Bissell, for De Yeaux Col- lege, resp’t; William B. Hoyt, for four Churches, resp’ts; George Gorham, for Home for the Friendless, resp’t.
   Dwight, P. J.

One objection was made by the contestants to all the provisions in question in the will of" the deceased, viz.: that they were repugnant to the statute of perpetuities, and the further objection was made to one of them, that the beneficiaries were not sufficiently ascertained or defined.. We are of opinion that none of the objections were well founded.

Six institutions are named in the will, in connection with as many devises or bequests, and the gift in each case is to the trustees (or managers) of one of such institutions, in trust, for a purpose named All are religious, charitable or educational institutions duly incorporated under the laws of the state of Hew York. Four of them, named in the fourth clause of the will, are religious societies or churches ; and the gift in each of those cases is to the trustees of the society named, in trust, of a sum to be invested, “ and the interest arising therefrom to be applied annually to the support of the pastor in charge.” Another institution, named in the fifth clause of the will, is “ The Home for the Friendless ” in Buffalo, and the gift “ to the managers in charge ” is of the avails of the sale, to be made, of certain real estate, which are to be invested, and “ the interest arising therefrom annually to be applied •to the benefit of said institution.” The other institution named in the sixth clause of the will is De Yeaux College at Suspension Bridge; and the gift is of the residue of the estate to the trustees of that institution, “to be held by them in trust, and the interest thereon to be applied for the purpose of educating some worthy boy, or boys, who may need assistance in obtaining an education, and it is my desire that preference should be given, first, to residents of the town of Hew-■stead, Erie county, H. Y., and second, to residents of said Erie county, H. Y., and thirdly, generally upon the rules of precedence established or to be established from time to time for appointment upon the De Yeaux foundation. Any beneficiary under the above bequest, however, to be received in the same way, in the same order and under the same conditions as now are or may be hereafter' prescribed fdr the beneficiaries received upon the foundation under the will of Judge De Yeaux.”

Under perfectly well settled principles of the law of this state, as we understand it, none of these several provisions is obnoxious! to the general objection made to all, viz., of repugnance to,the statute of perpetuities. For, first, although the gift in each caséis in terms to the trustees of the institution, it is in effect a gift to the corporate body, to the institution itself, and' vested in the latter the moment the will took effect Currin v. Fanning, 13 Hun, 458; N. Y. Ins. for the Blind v. How’s Ex’rs, 10 N. Y., 84; Consistory of R. D. Church v. Brandow, 52 Barb., 233; Chamberlain v. Chamberlain, 43 N. Y., 424, 437. The doctrine of these cases is the law of this state, and the question here first suggested is not open for discussion. ,

Second. The gift in each case was for one or more of the purposes of the incorporation of the institution to which it was made. In the case of each of the four churches it was for the support of the pastor, a recognized and undoubted purpose for which the church was organized; and therefore the gift was not only to the corporation, but was directly for its benefit. Williams v. Williams, 4 Seld., 525; Wetmore v. Parker, 52 N. Y., 450, 457. In the case of the Home for the Friendless the gift was, in terms, for the benefit of the institution.

In the case of De Yaux College, a careful collocation and comparison of the brief and explicit provisions of this will with the act of incorporation of that institution, demonstrates, we think, that the object and purpose of the former is to all intents and purposes within the scope of the objects and purposes of the latter. That act of incorporation constitutes chap. 243 of the Laws of 1853. It refers in its first section to the provision in the‘will of Samuel De Yeaux, the founder, by which certain real and personal estate is directed to be applied “ for the purpose of establishing, founding and maintaining a benevolent institution to receive- and support orphans and destitute children, to train them up to industry, to learn them trades and professions, to give them a. mental and manual and a social and religious education;” and it constitutes YTilliam H. Delancey and eight others, and their successors, a body corporate which “shall and may take, hold and. enjoy for the purposes expressed in said will, and no other, the--real and personal estate therein directed to be applied to the said purposes;” and it provides that the said corporation “ shall have-perpetual succession and be capable of taking and holding by purchase, gift, grant or devise, any real and personal estate for the-purposes aforesaid.” In the second section, moreover, the act. provides that the trustees of the said corporation “ shall take-charge and possession of the property directéd by the said will of said Samuel De Yeaux to be applied to the purposes aforesaid, and' of all other funds and real or personal estate whatever that may be acquired by the said corporation, and manage and dispose of the same- and apply the income and avails thereof to the purposes expressed as aforesaid in the said will, and to no other.”

The comparison above suggested between’the provisions of the-will of Benjamin Strickland in respect to' De Yeaux college, and. the provisions of the will of Samuel DeYeaux in the same respect; as effectuated by the charter of DeVeaux college, shows the complete harmony of purpose of the two testamentary acts, and brings the gift now in question as clearly within the provisions of the act of incorporation of the institution named, as the original gift of the founder. Such being the case the provisions of the sixth clause of the will under consideration may be consigned to the same category with the provisions previously considered, viz: of provisions for the benefit of the several institutions, respectively, which are named in the will, and under neither of which it is necessary to look for specific beneficiaries beyond those institutions themselves. Currin v. Fanning, supra. The suggestion, in the sixth clause, of a limitation upon the mode of selecting the boy or boys who shall enjoy the benefit of the provision is merely the expression of a desire of the testator in that respect, and it is expressly subordinated to the rules and practice of the institution by the following and concluding sentence of the clause.

We have, then, in this will six provisions for the benefit, respectively, of as many incorporated institutions, four of which are religious societies, one a purely benevolent or charitable institution, and one, incorporated by a special act of the legislature, for purposes both charitable and educational. Whether either of these provisions is repugnant to the statute .of perpetuities seems not to admit of much further discussion under the repeated and consistent adjudications of the courts of our own state. The case of Williams, supra, though not followed in the extent to which' it went in the application of the- English doctrine of pious and charitable uses, is yet most undoubted authority on the question •of the validity of trusts in perpetuity to corporations actually -existing and legally empowered to take and hold property, provided such trusts are for the purposes of their incorporation.

The case of Holmes v. Mead, 52 N. Y., 332, which most formally overruled Williams v. Williams in its application of the ■doctrine of charitable uses, nevertheless fully recognized the necessity, in the nature of things, of perpetuity in trusts to corporations, for the purposes of their creation, and to the extent of the limitations imposed by their charters or acts of incorporation ; and the court in that case, by Allen, J., remarks that, to the extent of those limitations, “ each act of incorporation is a dispensation in ■favor of the particular corporation in respect to the prohibitions <of the statute against perpetuities,” and is in effect a repeal, pro tanto, of that statute. See also Bascom v. Albertson, 34 N. Y., 584; Wetmore v. Parker, 7 Lans., 121; S. C., 52 N. Y., 450; Adams v. Perry, 43 id., 487; Chamberlain v. Chamberlain, id., 424.

It being conceded, then, that alhthe institutions mentioned in this will were duly incorporated by or under the laws of this state; that all were empowered to take and hold real and personal property for the purposes of their incorporation and within limits prescribed; that those limits will in no case be exceeded, upon the acquisition of the property or fund in question; and it being held that the gift of such property or fund in each case is to the corporation itself, for one or more of the purposes of its incorporation, no further question can be made of the validity of the; several provisions discussed of the will of Benjamin Strickland ; and it follows that the decree of the surrogate should" be affirmed.

Decree of the surrogate of Erie county affirmed, with costs to* be paid by the appellants.

Macomber and Lewis, JJ., concur.


text:
    John F. Kneller et al., Pl’ffs, v. Gerhard Lang, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Vendor and purchaser—Title.
    Where the record fails to show a deed from one who held title thirty-years ago, but shows a mortgage on the premises to him from plaintiff’s, predecessor in the chain of title, which contained a statement that it was-given for purchase money, and which was subsequently discharged by an assignee of the mortgage, the record title is imperfect and a purchaser will not be required to complete.

      2. Same—Adverse possession.
    To constitute an adverse possession which will ripen. into a title the possession must be held under a claim of title exclusive of any other right, founding the claim upon a written instrument as being a conveyance of' the premises.
    Submission to this court of a controversy upon admitted facts-under § 1279 of the Code of Civil Procedure, and the facts are as-follows: On the 30th day of January, 1891, the parties to this; action entered into a written contract of sale, the plaintiffs agreeing to convey by warranty deed to the defendant certain lands in the-town of Cheektowaga, county of Erie, containing about eighty-two acres, for the sum of $20,000, the contract being in form in all respects sufficient to bind the parties.
    The premises consisted of three adjoining parcels, and for the-purpose of identification were numbered one, two and three in-the submission papers.
    The controversy concerns parcel number two, which lies between and adjoining parcels one and three.
    More than thirty years ago one James Sheldon was the owner of the three pieces of land. The records of the county of Erie-fail to show title out of said Sheldon of parcel number two. On or about April 29, 1851, one Philip Gauchat gave a mortgage to-Mr. Sheldon, covering parcel number two, to secure the sum. of $602.
    The mortgage contained the following clause: “This mortgage-being given - to .secure the payment of the purchase price of the-above described premises.” The mortgage was properly recorded. Sheldon assigned the mortgage December 10, 1851, to Mr. John. H. Bliss, and Bliss began an action March 17,1854, against Philip Gauchat for the foreclosure of said mortgage.
    Bliss discharged the mortgage to said Philip Gauchat by an instrument bearing date December 4, 1851, and which was duly recorded February 13, 1854. The records fail to show any title in Gauchat of parcel number two, but on or about September 1L, 1854, he conveyed said piece by deed recorded October 19, 1854, Gauchat and his several grantees were in the undisturbed possession of said piece for twenty years and upwards, and the plaintiff,, John F. Kneller, is one of said grantees.
    Sheldon died intestate May, 1887, leaving him surviving several children, some of whom are minors.
    Mo action or proceeding at law has ever been brought or instituted to establish the rights of the Sheldon heirs to this property. The plaintiffs executed, acknowledged and tendered to the defendant a good and sufficient deed of conveyance of the premises.
    Defendant refused to complete his contract for the purchase of the lands, giving as the reason for such refusal that the title to the whole premises was not complete and perfect in the plaintiff, John F. Kneller; but that the omission or want of a deed from Sheldon is a cloud upon the.title, and that by virtue thereof some person or persons other than John F. Kneller have some right, title or interest therein.
    The plaintiffs claim that the title to the land is perfect and complete, and insist that Lang shall perform his contract, and they demand judgment to that effect. Mo other objection is raised to-the title.

      Clarence W. Wilson, for pl’ffs; James G. Smith, for def’t
   Lewis, J.

The defendant is entitled to- a good, merchantable title; one that he can sell in the market, and upon which he can, if he desires, procure a loan. of money. The record title is concededly imperfect, there being no record evidence that Philip Gauchat, under whom the plaintiffs claim title, ever had a deed of the premises.

An instrument in writing, subscribed and sealed by the person from whom the estate or interest conveyed is intended to pass, is necessary to convey the fee to land in this state. The acceptance of the mortgage containing the clause mentioned did not convey a title to the premises to Gauchat.

It was sufficient to raise a presumption that Gauchat had, at least, an equitable interest in the property, which might entitle him to a conveyance if one had not been made; but to make-it available an action would be necessary, and the Sheldon heirs would have to be parties thereto in order to obtain an adjudication which would bind them.

It is not incumbent upon the defendant to institute and prosecute such an action in order to perfect the title. It is contended by the plaintiff that Philip Gauchat and his several grantees, having been in the undisturbed possession of the premises for twenty years and more, and the plaintiff, John F. Kneller, being one of the grantees, his title to the premises is complete. Code Civ. Pro., § 369.

The admitted facts fail to state that they were in possession founding their claim upon a written instrument as being a conveyance of the premises in question. It was necessary, in order that their possession of the premises for twenty years should ripen into a title, that it should be held under a claim of title exclugive of any other right, founding this claim upon a written instrument as being a conveyance of the premises in question.

There is nothing in the papers showing that these premises were thus held. While there are authorities holding that a pur■chaser at a judicial sale may be compelled to take a title obtained by a continued possession of twenty years, the title must be accompanied with proof of such possession. The burden of procuring the evidence to establish the continuous possession for the requisite time cannot be imposed upon the purchaser. It was not contemplated by the parties entering into the contract that such a burden was to be imposed upon the defendant.

. Plaintiffs have, we think, failed to show that they have a merchantable title to the premises, and the defendant is entitled to judgment that he be relieved from fulfiling the contract.

Dwight, P. J.,.and Macomber, J., concur.


text:
    John H. Welch, Pl’ff, v. The New York Central & Hudson River Railroad Co., Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

      T. Master and servant—Negligence—Brakeman.
    While plaintiff was attempting to couple a car to the engine, and while attempting to draw an iron pin which had become fast in the drawhead of the engine, he stumbled against a pile of cinders on the track, and in trying to keep from falling his fingers were crushed between the bumpers. There was no proof as to how long the pile of cinders had been there, nor that defendant had notice thereof. Held, that no negligence on defendant’s part causing the injury was shown.
    3. Same—Bisks.
    The drawheads were of unequal height. Plaintiff had a straight link, but testified that he did not know but that there were crooked ones on the engine. Held, that he assumed the responsibility in attempting to use the straight link to make the coupling.
    Motion for a new trial, made by the plaintiff, upon exceptions ordered to be heard at general term in the first instance, after a verdict for the defendant, directed by the court at the close of the -evidence at the Monroe circuit in March, 1891.
    The plaintiff was a bralceman in the employ of the defendant; and while attempting to effect the coupling of an engine to a car •of the defendant he sustained personal injuries which he alleged were caused by the negligence of the defendant, and brought this .action to recover his damages.

      Eugene Van Voorhis, for pl’ff; Cassius C. Davy, for def’t.
   Lewis, J.

It became the duty of the plaintiff, as a bralceman in the employ of the defendant, to couple an engine to a car. 'There was, at the place where the plaintiff attempted to effect the -coupling, a pile of cindérs or ashes upon the defendant’s roadbed between the rails. In order to make the coupling it became necessary for the plaintiff to remove an iron pin from the draw-head of the engine; and in attempting to remove the pin he stumbled against the pile of cinders or ashes, and in order to prevent falling upon the ground he held on to the drawhead of the engine, and bis hand was caught between the bumpers of the. engine and the car, and his fingers were crushed.

The evidence failed to show how the ashes came to be placed, upon the roadbed, or what length of time they had been there, or who placed them there. Mo notice of the existence of the cinders was shown to have been given to .the defendant, or that they had remained there such a length of time as to be constructive notice of their presence. For all that appears in the evidence the cinders may have been deposited there the same night of the accident The plaintiff testified that when he attempted to remove-the coupling pin from the drawhead of the engine that it bad in, some way become fastened so that he was not able to pull it out,, and that while thus engaged in attempting to remove it he stumbled as above stated.

The evidence failed to show the cause of the pin being fastened-in the drawhead.

The difficulty may have arisen from one of many causes. The. plaintiff testified that he had taken the same pin from the draw-head of the engine a short time before he attempted to remove it on this occasion. The reasonable inference is, that the difficulty arose from some recent cause. The defendant was not shown to-have had any knowledge of its defective condition.

Another cause of complaint was, that the drawhead of the engine and the drawhead of the car that the plaintiff attempted to couple were of unequal height, and that the link attached to the drawhead of the engine, and which was to be used in effecting the coupling, was straight when it should have been crooked in form like the letter S. It was shown that the drawheads of cars in use, which were required to be attached to the engine from time to time, were frequently of unequal height; and that while in such cases the crooked link was more convenient than a straight one, that in the frequent changes in making up trains straight links and crooked ones were indiscriminately used; the plaintiff testified that he did not know but that there were crooked links on the engine, and in the caboose.

The plaintiff, when he attempted to make the coupling, saw that the drawheads were of unequal height, and that the link was straight, and assumed the responsibility in attempting to use the straight link.

Another cause of complaint by the plaintiff, was the failure of the company to furnish him with a coupling stick. He testified that when he entered the employ of the defendant, he signed a receipt for a coupling stick, but did not get one. He testified that they gave him a note to get one, but that there was no one in the yard office, and they never gave him one. He further testified “ I have seen lots of coupling sticks;. I have seen lots of brakemen have them, but I never saw a man make a coupling with one. I saw them in the office at Mewark, and I saw them in the cars, but they never used them.”

He had provided himself with a brake-stick which could be -used the same as a coupling-stick, but he did not use it. The accident occurred not because the plaintiff had not been furnished with a coupling-stick. He was injured while attempting with his hand to draw the pin from the drawhead of the engine. The coupling-stick could not have been used for that purpose. _ The plaintiff failed to show that the defendant was guilty of negligence causing his injuries. He suffered a serious injury, but failed to make a case against the defendant entitling him to recover.

Plaintiff’s motion for a new trial is denied, with costs, and judgment is ordered for the defendant on the verdict.

Dwight, P. J., and Macomber, J., concur.


text:
    Court of Appeals.
    Filed March 1, 1892.
    Wm. Curtis, Adm’r, App’lt, v. The Rome, W. & O. R. R. Co., Resp’t.

      D. p, Morehouse, for app’lt: Edmund B. Wynn, for resp’t.
   Judgment affirmed, with costs. All concur, except Maynard, J., absent.

Affirming 40 tit, Rep., 986.


text:
    The People ex rel. Trustees St. Patrick’s Cathedral, Resp’ts, v. James Davren et al., Assessors, App’lts.

      George Bliss, for resp’ts; George W. Stephens, for app’lts.
   Order affirmed, with costs. All concur, except Éarl, Ch. J., and Peck-ham. J., dissenting, and Gray, J., not voting.

Affirming 41 St. Rep., 779.


text:
    Louisa J. Bruen, Resp’t, v. The Manhattan R. Co. et al., App’lts.

      Stanley W. Dexter, for resp’t; William B. Page, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 39 St. Rep., 86.


text:
    The People ex rel. Henry Silkens, Resp’t. v. John McGlyn et al., Board of Excise, App’lts.

      John H. Kemble, for resp’t; James O. Church, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 42 St. Rep., 160.


text:
    In the Matter of the Revocation of Probate of Will of Robert Liney, Dec’d.

      Cassius C. Davy, for app’lts; John H. Hopkins, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 1022.


text:
    Wm. E. Earl, Adm’r, Resp’t, v. Geo. W. Crouch, Jr., App’lt.

      'Thomas Baines, for resp’t, William E. Cogswell, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Rep.. 847.


text:
    Angela Garoni, an Infant, Resp’t, v. The Compagnie Nationale de Navigation of Marseilles, App’lt.

      Edward C. James, for resp’t; Eseh Cowen, for app’lt.
   Judgment affirmed, with costs. All concur, except Earl, Ch. J., and Peckham, J., who dissent on the ground that the charge to the jury was erroneous as to the degree of care resting unon the defendant.

Affirming 39 St. Rep., 63.


text:
    Morris Coleman, Adm’r, Resp’t. v. The N. Y. C. & H. R. R. R. Co., App’lt.

      E. D. Matthews, for resp't; C. D. Prescott, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Rep., 985.


text:
    Thos. H. Thorn et al., Resp’ts, v. James Sutherland et al., App’lts.

      Bobert A. B. Dayton, for resp'ts; S. B. Brownell, for app’lts.
   Judgment affirmed, with costs, on opinion of Ingraham, J below. All ■concur.

Affirming 41 St. Rep., 572.


text:
    John Norling, App’lt, v. Wm. H. Allee et al., Ex’rs, Resp’ts.

      J. Edward, Bwanstrom, for app’lt; William H. Sage, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 37 St. Rep., 409.


text:
    Jas. Donohue, Adm'r, Resp’t, v. The Brooklyn City R. R. Co., App’lt.

      07ms. J. Patterson, for resp’t; S. Stewart WTdteliouse, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 485.


text:
    Anna Mahoney, Adm’rx, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      John'M. Gardner, for resp’t; A. S. Oassedy, for app’It.
   Judgment affirmed, with costs. All concur.

Affirming 39 St. Rep., 911.


text:
    Thos. H. Greer, Ind. and as Ex’r, App’lt, v. Alden Chester, Ex’r, Resp’t.

      R. W. McOlettan, for app’lt; Robert G. Scherer, for resp’t.
   Judgment affirmed, with costs, on opinion of Learned, J. All concur.

Affirming 42 St. Rep.¡ 289.


text:
    In the Matter of the Will of Daniel Gould, Dec’d. Elam A. Hatch, Resp’t, v. Mahlon J. Gould, App’lt.

      J. A. Stull, for resp’t; 0. B. Gould, for app’lt.
   Judgment affirmed, with costs.' All concur.

Affirming 30 St. Rep., 949.


text:
    Merritt E. Haviland, Ex’r, Resp’t, v. The Manhattan R. Co., App’lt.

      Edward B. Hill, for resp’t; Brainard Tolies, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 40 St. Rep., 773.


text:
    Filed March 8, 1892.
    Jacob Pauley, Adm’r, Resp’t, v. The Steam Guage & Lantern Co., App’lt.

      J. <6 Q. Van Voorhis, for motion; Louis Marshall, opposed.
   Motion for re-argument denied, ten dollars costs.

See 42 St. Rep., 636.


text:
    Filed March 15, 1892.
    The People ex rel. Louis W. Schultze, Coroner, v. Theo. W. Myers, Compt’r.

      Daniél P. Hays, for app’lt; Theodore Gonnoly, for resp’t.
   Order affirmed on opinion helow, with costs. All concur, except Earl, Ch. J., not voting.

Affirming'41 St. Rep., 150.


text:
    The People ex rel. Wm. J. Best, App’lt, v. Chas. M. Preston, Sup't Bank Dep’t, Resp’t.

      John T. McDonough, for app’lt; S.t W. Rosendale, atty. gen’l, for resp’t.
   Order affirmed, with costs. All concur, except Maynard, J., not sitting.

Affirming 41 St. Rep., 214.


text:
    Matthew Gaunt Hepworth, Resp’t. v. The Union Ferry Co. Brooklyn, App’lt.

      Orrin Gambell, for resp’t; Frederic A. Ward, for app’lt.
   Appeal dismissed, with costs. All concur.

See 41 St. Rep., 783.


text:
    Albert Howe, App’lt, v. Thos. J. Learey et al., Resp’ts.
   No papers.

Appeal dismissed, with costs. All concur.

See 41 St. Rep., 473.


text:
    Prosper Monnet et al., Resp’ts, v. Henry Merz, Surv’r, App’lt.

      Wm. Henry Arnoum, for resp’ts; William Man, for app’lt.
   Order affirmed, with costs. All concur.

Affirming 43 St. Rep., 59.


text:
    George R. Clark, Resp’t, v. Calvin Swift, Adm’r, App’lt.

      Chas. F. Whitcher, for resp’t; H. J. Swift, for app’lt.
   Order affirmed, with costs, with ten per cent damages for delay. All concur.

Affirming 38 St. Rep., 129.


text:
    Benj. L. Conde, Adm’r, Resp’t, v. Hiram Wiltsie et al., Ex'rs App’lts.

      T. J. Van Alstyne, for resp’t; Nathaniel C. Moak, for app'lts.
   Judgment affirmed, with costs. All concur, except Peckham and Mat-ward, JJ., dissenting.

Affirming 42 St. Rep., 578.


text:
    Meyer Rosenstock et al., Resp’ts, v. John Hegarty, App’lt.

      Horace Craves, for resp’ts; L. B. Beckley, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 36 St. Rep., 92.


text:
    John A. Collins, Resp’t, v. Geo. K. Collins et al., Impl’d, App’lts.

      T. tt. Hancock, for resp’t; William C. Tracy, for app’lts.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 36 St. Rep., 591.


text:
    The People ex rel. The Southern Cotton Oil Co., App’lt, v. Edward Wemple, Compt’r, Resp’t.

      W. W. MacFarland, for motion; Chas. F. Tabor, opposed.
   Motion for re-argument denied, ten dollars costs.

See 42 St. Rep., 632.


text:
    The People, App’lts, v. Charles Featherly, Resp’t.
   No papers.

Motion for re-argument denied, ten dollars costs.

See 42 St. Rep., 878.


text:
    Wm. Alexander, Adm’r, Resp’t, v. The State, App’lt.
   No papers.

Motion to prefer granted, and case set down to be argued the first Tuesday of the next session of the court.


text:
    Filed March 22, 1892.
    The National Park Bank, Resp’t, v. Warren N. Goddard et al., App’lts.

      Flihu Boot and George Zabriskie, for resp’t: Gibson Pwtzd, Benno Loewy and John Notman, for app,lts.
   Order affirmed, with costs. All concur.

Affirming 41 St. Rep., 442.


text:
    In the Matter of the Judicial Settlement of Account of Henry R. Gordon, Adm’r.

      Joshua M. Van Colt, for app’lt; Lemuel H. Arnold, for resp’t.
   Order affirmed, with costs. All concur.

Affirming 39 St. Rep., 909.'


text:
    Filed March 25, 1892.
    Warren N. Fitchett, Resp’t, v. Thomas Canary, App’lt.

      Charles Blandy, for resp’t; Albert L. Sire, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 531.


text:
    Daniel B. Childs, Rec’r, Resp’t, v Edward F. Latham et al., App’lts.

      James Byrne, for resp’t; Alex Blumenstiel, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 852.


text:
    Wm. H. Boggs, Resp’t, v. Theo. S. Bird et al., App’lts.

      James B. Steers, Jr., for resp’t; George W. Miller, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 38 St Rep., 992.


text:
    Aaron Altmayer, Resp’t, v. The Metropolitan El. R. R. Co. et al., App’lts.

      Chrnies Gibson Bennett, for resp’t; Julien T. Demies, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 530.


text:
    Charles P. Helms, Resp’t, v. The Metropolitan El. R. R. Co. et al., App’lts.

      Charles Gibson Bennett, for resp’t; Julien T. Davies, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 531.


text:
    Marie E. Hauser, Resp’t, v. The Metropolitan El. R. R. Co. et al., App’lts.

      Charles Gibson Bennett, for resp’t; Julien T. Davies, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 531.


text:
    The People, Resp’ts, v. Alexander Meakim et al., App’lts.
   No papers.

Appeal dismissed, with costs. All concur.

See 40 St. Rep., 686.


text:
    Alice D. Rigdon et al., Resp’ts, v. The Allegany Lumber Co. (Limited), App’lt.

      J. B. Jewell, for resp’ts; G. S. Cary, for app’lt.
   Judgment affirmed; with costs. All concur, except Pinch and Maynard». JJ., dissenting.

Affirming 37 St. Rep., 514.


text:
    John McDermott, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Samuel D. Morris, for resp’t; Chas. J. Patterson, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 33.


text:
    Second Division.
    Filed March 8, 1892.
    True D. Matson, App’lt, v. Justin Blossom, Impl’d, Resp’t.
    Pro. E. Hobby, for app’lt; John Desmond, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 228.


text:
    William Garlock, App’lt, v. Samuel W. Markham, Resp’t.

      J. S. GaHock, for app’lt; John Desmond, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 263.


text:
    Allen Delos Briggs, Resp’t, v. Thomas H. Groves, App’lt.

      Isaac S. Signor, for resp’t; John D. Lynn, for app’lt.
   Judgment affirmed, with costs. All concur, except Haight, J., absent.

Affirming 30 St. Rep., 953.


text:
    The Reliable Steam Power Co., Resp’t, v. The Solidarity Watch Case Co., App’lt.

      Joshua M. Van Cott, for resp’t; Charles H. Maahin, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep , 246.


text:
    Robert MacDonald et al., App’lts, v. Anna Wallstein et al., Resp’ts.

      Blumenstiel & Hirseh, for app’lts; Benno Loewy, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 1001.


text:
    Charles H. Arthur et al., App’lts, v. Alfred P. Wright et al., Resp’ts.

      Day & Homer, for app’lts; Prank Brundage, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 32.


text:
    Mary A. Stryker, App’lt, v. Francis M. Schuyler, Resp’t.

      Wm. H. Henderson, for app’lt; JohnWoodward, for resp’t.
   Judgment affirmed, with costs. All concur, except Bradley and Haight, JJ., not sitting.

Affirming 22 St. Rep., 1005.


text:
    Wm. A. Copp, App’lt, v Harry B. Hollins et al., Resp’ts.

      Bobert P. Harlow, for app’lt; John B. Dos Passos, for resp’ts.
   Judgment affirmed, with costs. AH concur.

Affirming 30 St. Rep., 236.


text:
    Barbara Stimmel, App’lt, v. Charles Watts et al., Resp’ts.

      C. A. 8. Van Nostrand, for app’lt; A. N. Weller, for resp'ts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep , 380.


text:
    Chas. G. Martin et al., App’lts, v. Hattie W. Bliss, Resp’t.

      Wm. Henry Arnoux, for app’lts, L. B. Beekley, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 930.


text:
    John W. Haaren, Resp’t, v. Jeremiah C. Lyons et al., Impl’d, App’lts.

      H. H. Glass, for resp’t; John Larkin, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep,; 416.


text:
    John R. Price, App’lt, v. Thomas A. Mapes, Assignee, Resp’t.

      Edward O. Perkins, for app’lt; George M. Bush, for resp’t.
   Judgment affirmed, without costs. All concur.

Affirming 28 St. Rep., 88.


text:
    Thos. Thorn et al., Resp’ts, v. The Metropolitan El. R. Co. et al., App’lts. (3 cases.)

      Wm. Mitchell, for resp’ts; Brainard Tolies, for app’lts.
   Judgment affirmed, with costs, upon opinion in Mitchell v. Metropolitan El. B. Co. et al., 43 St. Rep., 476. All concur.

Affirming 31 St. Rep., 84.


text:
    Henry O. Kenyon, App'lt, v. John F. Luther et al., Resp’ts.

      Porter <& Walts, for app’it: Watson M, Pagers and JSlon P. Brown, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 1003.


text:
    Filed March 15, 1892.
    Edward W. Hankins, App’lt, v. The N. Y., L. E. & W. R. R. Co., Resp’t.
   No papers.

Appeal dismissed, with costs. All concur.

See 28 St. Rep., 59.


text:
    Filed March 22, 1892.
    Clarence R. Conger, App’lt, v Wolsey T. Weiant et al., Resp’ts.

      Irving Brown, for app’lt; Geo. W. Weiant, for resp’ts.
   Judgment affirmed, with costs, on opinion in Conger v. Treadway, 43 St. Rep., 874. All concur. Brown, J., not sitting.

Affirming 28 St. Rep., 745. .


text:
    David Mayer, App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.

      ?’ÍF' for app’lt; Hamilton Harris, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 29 St. Rep., 183.


text:
    Francis Pares Osborn et al., Resp’ts, v. Samuel Edgar et al., Impl'd App’lts.

      John N. Lewis, for resp’ts; Charles E. Bushmore, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 31 St. Rep., 176.


text:
    Oliver W. Barnes v. Jesse Seligman et al.

      Otto Horwite, for motion; Geo. W. Seligman, opposed.
   Motion to amend remittitur denied, without costs. All concur.

See 42 St. Rep., 536.


text:
    Filed March 25, 1892.
    Jeremiah Callaghan, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      M. B. Driscoll, for resp’t; Louis Marshall, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 32 St. Rep., 1134.


text:
    Charles E. Hume, Resp’t, v. The George C. Flint Co., App’lt.

      John H. V. Arnold, for resp’t; B. Countryman, for app’lt.
   Judgment affirmed, with costs. All concur, except Haight, J., not voting.

Affirming 33 St. Rep., 651.