author: Andrews, Ch. J.

text:
    George H. Dyett, App’lt, v. The Central Trust Co., Trustee, et al., Resp’ts.

      (Court of Appeals,

      Filed November 28, 1893.)

    1. Trust—Alienation by beneficiary of interest.
    Section 63 of the statute of uses and trusts, which disables the alienation by a beneficiary of a trust for the receipt of the rents and profits of lands of his interest, has no application to a (rust created prior to the Revised Statutes, and the beneficiary of such a trust has power to dispose of or incumber his interest.
    -2. Same—Power of sale.
    A trust deed, made pursuant to a marriage settlement, provided that it was in trust to sell and convey with the consent of the husband and wife, and invest the proceeds in other real estate or security, and with power to change the investment irom time to time with the like consent, so as to produce the best income without lessening the principal; to permit the husband to receive the rents and profits for the use of himself and wife, and if he survive, to receive the same during life; if the wife survived, then to permit her to receive them to her own use for life, and if there should be children, or the issue of children, living at her death, then to their use forever. The trustees, with leave of court, mortgaged the property in question, and invested the proceeds in a factory as a change of investment. Thereafter the mortgage was foreclosed, but the purchaser refused to complete the purchase, claiming that the mortgage-was only a lien on the life estate, and the children were not bound by the decree. An arrangement was then made by which the life estate was sold under the foreclosure to said purchaser, and with the. wife’s consent the trustee sold and conveyed to him the fee subject to such life estate. Held, that the sale was a valid exercise of the power of sale upon an exigency which seemed to require, in the interests of all parties concerned, that such power should he exercised.
    Appeal from, judgment of the supreme court, general term, first department, affirming judgment in favor of defendants, dismissing the ■complaint.

      A. R. Dyett, for app’lt; William Allen Butler, for resp’ts.

      Affirming 46 St. Rep., 615.

   Andrews, Ch. J.

The records of the courts of the state disclose that litigations growing out of the marriage settlement of September, 1821, commenced a few years after its execution and continued until the- sale of the property to Wiley, in 1849. He purchased the Broadway lot in that year for $39,500, which concededly was the full value of the fee; and from that time until the commencement of this suit in 1888, a period of nearly forty years, Wiley and his grantees have remained in undisturbed possession of the property, claiming absolute title.

This action is brought by one of the children of Mrs. Dyett, who died in 1885 at an advanced age. The action proceeds on the ground that the alleged title of Wiley and his grantees under the foreclosure of the Globe Insurance Company mortgage, and the conveyance by the trustees, are invalid, because Mrs Dyett, in 1831, when the mortgage was given, had no power to charge her interest in the land, and on the further ground that, even if the mortgage bound her life estate, the sale and conveyance by the trustees of the remainder, separated from the life estate, although made with her consent, was not a good execution of the power of sale given by the marriage settlement.

The discussion at the bar has taken a wide range, and the character of the title in the trustees under the marriage settlement, and also as it was affected by the Revised Statutes subsequently enacted, has been considered by counsel with great learning and ability. It is supposed by the counsel for plaintiff that if he should succeed in establishing that Mrs. Dyett’s interest in 1831 was that of a beneficiary of an express trust, within the meaning of the Revised Statutes, it would follow that under § 63 of the article of the Revised Statutes on uses and trusts she was incapable of mortgaging or aliening that interest, or in any way creating .a charge enforcible against the land or binding her equitable interest, and that, therefore, the mortgage to the Globe Insurance 'Company, executed in 1831, and under which the life estate of Mrs. Dyett was sold ’to Wiley in 1849, was void. I entertain no doubt that under the marriage settlement the trustees took the legal title to the Broadway lot, and.that the persons who-became successively entitled to the rents and profits took an, equitable life interest therein, with remainder on the death of Mr. and Mrs. Dyett to .their children. The appointment of trustees in marriage settlements to take the title to the lands-embraced in the settlement, to protect the interests created; thereby, was the common practice. By the marriage settlement in question, not only was there a formal conveyance of the Broadway lot to the trustees, but they were invested with a power of sale and to reinvest the proceeds in other lands or' upon real or personal security, and they were directed to permit. Mr. Dyett to receive the rents and income, or in case Mrs. Dyett. became entitled thereto under the provisions of the settlement, to pay the same to her for her sole and separate use, and on the death of Mr. Dyett surviving his wife, to hold the property to the-use of the children of the marriage, with like direction on the death of Mrs. Dyett incase she survived her husband.

It may be true, as claimed by the counsel for the plaintiff, that-the presence in the trustees of the legal title to the property embraced in the settlement was not indispensable to enable them to perform the acts and execute the authority contemplated. But there can be no doubt, I think, that the legal effect of the instrument was to vest the legal title in the trustees. The trust created; was not one which came within the purview of the statute of uses.. That statute applied to strictly formal trusts, and where any agency or authority was vested in the trustee, the statute did not execute the use and vest the legal estate in the beneficiary. Com-stock, J., Downing v. Marshall, 23 N. Y., 379 ; Lewin on Trusts, 246. The learned counsel for the plaintiff insists that the trustee originally took no title, and this insistance was made apparently for the purpose of establishing the invalidity of the mortgages executed by the trustees in 1823, for the payment of which the mortgage of 1831 was executed. He further claims that on the enactment of the Eevised Statutes the interest of Mrs. Djmtt became, by some metamorphosis not explained, changed from a legal life-estate into an interest as a beneficiary of a trust to receive the rents, and profits of land, and that the trustees then, for the first time, by operation of law, became vested with the legal title. This contention cannot be supported. The interest of Mrs. Dyett at all times was equitable and not legal, and she having, by the insolvency of her husband in 1827, become entitled under the terms of the settlement to the whole rents, and profits, she had thereafter, at any time, whether before or after the Eevised Statutes, the power to charge her equitable interest by lien or mortgage.

Under the common law a wife had complete capacity to dispose of, pledge or incumber her separate estate, or an interest settled to-her separate use, whether her interest was-legal or equitable, unless restrained by the instrument of settlement. Hulme v. Tenant, 1 Br. Ch. Cas., 16; Jaques v. Methodist Church, 17 Johns., 548; Vanderheyden v. Mallory, 1 N. Y., 452; Yale v. Dederer, 18 id., 265 ; 2 Story Eq., § 1388 et seq. This right, which was vested in Mrs. Dyett when the Ee vised Statutes were enacted, was not taken away or abridged by § 63 of the article on uses and trusts. That section which disables the alienation by a beneficiary of a ■trust for the receipt of the rents and profit of lands, of his interest, has no application to a trust created prior to the Ee vised Statutes. The concluding- section of the chapter containing the article on uses and trusts declares that: “ Hone of the provisions of this ■chapter, except those converting formal trusts into legal estates, shall be construed as altering or impairing any vested estate, interest or right, or as altering or affecting the construction of any ■deed, will or other instrument, which shall have taken effect at any time before .this chapter shall be in force as a law.” The power of a beneficiary in a trust created before the Devised Statutes to alien was plainly a right reserved from their operation. That Mrs. Dyett had the right to charge her separate estate or interest in the land, was expressly adjudged in the case of North American Coal Co. v. Dyett, 7 Paige, 9, one of the litigations connected with this trust, as also in the case of Warner v. Hoffman, 4 Edw. Ch., 381. In the casein Paige the validity of the Globe Insurance Company’s mortgage was recognized by making the ■charge established in that case subordinate to the lien of the mortgage. The validity of the mortgage was also adjudged in the foreclosure action. Even if these adjudications are not binding on the children of Mrs. Dyett as res adjudicaba, they not having been parties to those actions, yet they should be deemed controlling, and should be followed unless clearly erroneous. I think those ■cases were correctly decided, and that there is no ground for questioning the capacity of Mrs. Dyett to charge her life estate by mortgage, and that a valid charge was created thereon by the mortgage in question. So far, therefore, as the plaintiff’s alleged title rests upon the claim that the mortgage was an invalid instrument and did not bind Mrs. Dyett’s life interest in the Broadway lot, and that, therefore, a title derived under foreclosure did not pass that interest to Wiley, the purchaser, it cannot be supported.

The other contention on the.,part of the plaintiff is that the deed •of February 28, 1849, from the trustees to Wiley, in which Mrs. Dyett joined, purporting to convey the remainder in the Broadway lot, subject to the life estate of Mrs. Dyett therein, “ recently sold under a foreclosure in the supreme court of a mortgage by her, executed on the premises,” was not a good execution of the power of sale conferred on the trustees by the marriage settlement. The particular ground upon which- the plaintiff relies in support of this claim is that by a true construction of the power of sale conferred on the trustees by the marriage settlement, it could be exercised only by a sale of an absolute fee in possession, and that the trustees could not sell the remainder separated from the life estate of Mrs. Dyett. The trustees were given power to sell and convey to a purchaser, “in such manner as to convey-a fee,” and they were authorized to invest the proceeds to the end “ that the best annual interest be made thereon, without lessening the principal.” It is said that, assuming the validity of the mortgage as a ■qharge on Mrs. Dyett’s life estate, nevertheless the purchaser on the foreclosure was substituted simply to her right to receive the rents and profits of the land during her life, and that the foreclosure did not affect the power of the trustees to sell the entire fee, and that on such sale being made the right of the purchaser would attach to the proceeds of the sale made by the trustees, of which the purchaser could claim the income only during the life of Mrs. Dyett, leaving the whole principal to go to the children on her death. It will be observed that the alleged restriction of the power of sale is not found in any express words. The trustees were authorized to sell “ in such manner as to vest the fee in the purchaser.” These words were insefted apparently to render it clear that the power extended to a sale of the fee of the land and not for the purpose of defining how that purpose should be accomplished. Acconyjanying the authority for reinvestment is a statement of the purpose for which the power was to be exercised, viz.: “ To the end that the best annual interest be made, without lessening the principal.”

This clause seems to have been inserted out of abundant caution, so that the principal should not be sacrificed or hazarded by attempts to enlarge the income. In determining whether the trustees were acting within the power in selling and conveying the remainder to Wiley by their deed of February 28, 1849, it. is important that the situation should be considered. Wiley, having purchased on the foreclosure. of the Globe Insurance-Company mortgage, refused to complete his purchase on the ground that his purchase was of the whole title, and that the mortgage only bound the life interest of Mrs. Dyett. The plaintiff in the foreclosure action thereupon caused the premises to be re-advertised for sale under the decree. At this point the children of Mrs. Dyett, through their guardian, filed'a bill to enjoin are-sale, insisting substantially that the interests of all parties required that the sale should be consummated, and that the sum of $39,500, which had been bid by the purchaser, should be apportioned as between the life interest and the interest in remainder, and a temporary injunction was obtained. Thereafter, by arrangement between all interests, the infants being represented by eminent counsel, the sheriff resold the premises, and they were again purchased by Wiley for the sum of $23,700, the (J value of the life estate of Mrs. Dyett, according to the Northampton tables, and simultaneously therewith the trustees convoyed to Wiley, for the consideration of $15,800, the remainder. It is not disputed that these two sums, amounting to $39,500, represented the full value of the lot. These transactions, if valid, vested in Wiley an absolute title in fee, the life estate under the foreclosure and the remainder by deed from the trustees.

By the foreclosure of the mortgage Wiley, as purchaser, became entitled to all the rights of Mrs. Dyett,the mortgagor,in the lot. She would no longer be entitled to the rents and profits. They would belong to the purchaser on the foreclosure. One of the main purposes of the marriage settlement had thereby been defeated, viz., to enable Mrs. Dyett through the rents and profits of the land to provide for the support of herself and her children, which purpose is declared in the marriage settlement. This purpose of the trust was no longer attainable. The children were deprived of all means of support out of the property, except what might be derived from the sale of the remainder. The present value of the remainder, if realized, would, with interest thereon, in theory of law, represent the value of the whole fee at the termination of the life estate. There were contingencies. The property might increase or decrease in value. The trustees, acting in good faith, at the request of Mi’s. Dyett, made the conveyance. The case is anomalous and stands upon peculiar facts. It is not necessary to declare any general rule as to the power of a trustee under a limitation for life with remainder over, having a general power of sale,, to sell the several estates in the land separately, or having sold the entire fee, to adjust the life interest by the payment of a-gross sum out of the purchase money. Courts have undoubted power in a proper case to apportion, as between a life interest and remainderman, the proceeds of a sale covering both interests. Clark v. Seymour, 7 Sim., 67 ; In re Cooper, L. R., 4 Ch. Div., 802. The sale made by the trustees in this case was not in violation of the terms, nor, as we think, of the spirit of the power conferred, but was a valid exercise of the power upon an exigency which seemed to require in the interests of all parties concerned that the power should be exercised. What disposition was made by the trustees of the sum for which the remainder was sold, does not appear. Neither Wiley nor his grantees were bound to inquire as to its application, there being no suggestion of bad faith on their part. 2 Bev. St., 730, § 66, and cases in notes.

Bor the reasons stated the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Sarah E. Mellen, Resp’t, v. William C. Banning, Ex’r, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Partition—When power of sale in executors not a bar.
    M. left a will devising all his real estate to his widow and three children. He gave full power and authoiity to his executors and the survivor, for the purposes of a division or distribution, or for any other purpose that they in their best judgment may think proper, to sell all or any real estate owned by him, and to apply the proceeds in conformity to the provisions of his will. Held, that the power was a general power in trust, and was not a bar to a voluntary partition nor to an action by any of the owners for partition.
    2. Fraudulent conveyance—Compound interest.
    Creditors cannot set aside as fraudulent a conveyance made by_ a failing debtor simply because the consideration therefor is made up in part of compound interest.
    Appeal from an order of the circuit, dated October 30, 1890, denying defendant’s motion, made on the minutes, for a new .trial; from an order of the special term, dated December 23, 1891, denying defendants’ motion to vacate said order denying the motion for a new trial; from an order of the special term, dated December 23, 1891, denying defendants’ motion to set aside the gen-eral verdict and special findings of the jury, from an interlocutory judgment entered November 25, 1891, on the verdict and find-, ings of the court, and also from the final judgment entered April 7, 1892, on the report of the referee.
    This action was begun November 30, 1888, to partition the land which Abner Mellen owned at the date of his death. He ■died May 27, 1887, seized in fee of three pieces of land, one known as No. 204 Fifth avenue ; one as No. 6 Mulberry street; and the other being a piece seventy-one feet and three inches wide by ninety-two feet in length, situated on the south side of East Seventeenth street, and known as Nos. 516, 518 and 520. He left him surviving, Helen M. Mellen, widow, Abner Mellen, Jr., son, Maria L. Kendall, daughter, Helen J. Banning, daughter, and Abner M. Wilcox, grandson, the son of a deceased daughter, as next of kin and heirs at law. He left a will, which contains, among others, the following clauses:
    “ Fifth. All the real estate of which I shall die seized and possessed, or to which I shall be entitled, at the time of my decease, I give and devise and bequeath unto my wife, Helen M. Mellen, and my thi;ee children, Abner Mellen, Jr., Maria L. Kendall, and Helen J. Banning, share and share alike, to them, their heirs and assigns, forever.”
    “ Eighth. I hereby give full power and authority to my said executrix and executors, or whichever of them shall qualify, and the survivors and survivor of them, for the purposes of a division or distribution, or for any other purpose that they, in their best judgment, may think proper, to grant, alien, sell and convey, either at public or private sale, all or any real estate owned by me, or to which I shall be entitled, or in which 1 shall have any interest, at the time of my decease, and to apply the proceeds of such sale or sales in conformity to the provisions -of this, my last will, and testament.”
    June 15, 1887, the will was probated, and letters thereon were issued to Helen M. Mellen, Abner Mellen, Jr., and William C. Banning, the persons nominated as executors by the testator, who •entered upon the execution of the trust. September 28, 1888, Helen M. Mellen died intestate, leaving said Abner Mellen, Jr., Helen J. Banning and Maria L. Kendall, her children, and Abner M. Wilcox, a grandson, the child of a deceased daughter, her next of kin and heirs. On the death of the widow, each of the three children became entitled to an undivided five-sixteenths, and the grandson to an undivided one-sixteenth, of the realty of which Abner Mellon, Sr., died seised. October 15, 1888, letters -of administration were granted on the estate of Helen M. Mellen to Abner Mellen and William 0. Banning. November 3, 1888, Abner Mellen, Jr., conveyed his five-sixteenths to Lawrence E. Ellis, who on the same day conveyed the same interest to Sarah E. Mellen, the wife of Abner Mellen, Jr. Both deeds were duly recorded, November 28, 1888. When this action was begun, Abner Mellen, Jr., Helen J. Banning, William 0. Banning, her husband, Maria L. Kendall, Abner M. Wilcox and Winifred Wilcox, his wife, were made defendants. William C. Banning was not at first joined in his representative capacity. The complaint set forth the title as hereinbefore stated, and demanded a judgment that the premises be partitioned, or in case they could not be without injury to the interests of the owners, that they • be sold, and that a receiver be appointed to collect the rents during the pendency of the action. Abner M. Mellen never appeared in the action. The other defendants answered jointly. They admitted that Abner Mellen, the plaintiff’s husband, by the devise of his father and by descent from his mother, acquired five-sixteenths of the premises, but denied that the plaintiff was the owner of five-sixteenths of the premises, and alleged that she had no interest in them, except her right of dower as the widow of Abner Mellen. The defendants alleged in their answer that when Abner Mellen executed the conveyance of his interest he was indebted to his father’s estate in the sum of $130,116.67, to Maria L. Kendall in the sum of $7,896.35, and to his said two sisters and Abner M. Wilcox, for rents collected from the tenants of said premises, in more than $18,000. It is also alleged that Abner Mellen was required to account in the surrogate’s court-as the 2’epresentative of the estate of his father and mother, and that by the decree of that court he was directed to pay Maria L. Kendall $11,707.36 ; Helen J. Banning, the sum of $11,707.36; to William 0. Banning and Abner Mellen, as administrators of the estate of Helen M. Mellen, the sum of $17,561.05 ; and that it was further adjudged that he was indebted to his father, at the date of hfs death, in the sum of $77,000; and that July 20,1889, judgments were entered on the decree of the surrogate in favor of Maria L. Kendall, Helen J. Banning, and William 0. Banning and Abner Mellen, as administrators, for the sums aforesaid ; and that executions were issued upon these judgments and returned wholly unsatisfied. It is also alleged that Abner M. Wilcox recovered a judgment October 18, 1889, against Abner Mellen, for $351.53, and that an execution was .afterwards issued and returned wholly unsatisfied ; and that Maria L. Kendall assigned her claim against Abner Mellen for $7,896.35 to Banning, Bissell & Co., who, December 16, 1889, recovered a judgment thereon for $8,939.36. It is alleged that the conveyances from Abner Mellen to Lawrence E. Ellis, and from him to the plaintiff, were made with intent to hinder, delay and defraud the creditors of said Abner Mellen, and especially to defraud Maria L. Kendall, Helen J. Banning, and Abner M. Wilcox, and that said conveyances were void as against them. April 24, 1889, Abner Mellen made a general assignment for the benefit of creditors, without preferences, to Gordon McKay, who accepted the trust and entered upon its execution. March 6, 1890, Abner Mellen died intestate, leaving him surviving, Sarah E. Mellen, widow, Gordon McKay Mellen, son, Stanley Mellen, son, Evelyn Mellen, daughter, his only heirs and next of kin, and on the 14th day of April, 1890, letters of administration were granted on his estate to his widow, Sarah E. Mellen ; but this action has not been revived and continued against liis representative, and neither his assignee nor heirs have been brought in as parties. On the 6th of August, 1890, an order was made at special term directing that the summons and complaint, and all the papers in the action, be amended by inserting, after the name William C. Banning, the words, “ individually, and as sole surviving executor of the last will and testament of Abner Mellen, deceased,” and that a copy of the summons and complaint so amended he served on him, and that he be made a party defendant in his representative capacity. This was done, and he appeared and answered, setting up the defenses interposed in the joint answer before served, and also that on the 17th of April, 1890, he executed the power of sale contained in the eighth clause of the will of Abner Mellen, and sold all of the lands devised by him.

      Joseph H. Choate, for app’lts; Henry Dailey, Jr., for resp’t.
   Follett, J.

Under the fifth clause of the testator’s will, his devisees acquired the absolute fee of all the lands of which he died seized, subject to the execution of the power contained in the eighth clause. 1 Rev. St., 329, § 26; Mellen v. Banning, 60 Hun, 151; 38 St. Rep., 115; Clift v. Moses, 44 Hun, 312; 7 St. Rep., 691; aff’d 116 N. Y., 144; 26 St. Rep., 405. They took precisely the same estate that they would have done had ail of the land been subject tó a mortgage containing a power of sale, executed by the testator or by some former owner of the fee. The will did not convert the land into personalty out and out, but it remained realty, White v. Howard, 46 N. Y., 144-162; In re Fox, 52 id., 530-537; aff’d 94 U. S., 315; Hobson v. Hale, 95 N. Y., 588; and the devisees and their successors in interest were entitled to the possession of the land, and to receive the rents and profits of it. Clift v. Moses, supra, and the cases therein cited. The power of sale contained in the eighth clause is not a beneficial one, but it is a general power in trust. 1 Rev. St., 732, §§ 78, 79; id. 734, § 94. The power is conferred on the executors in their representative capacity, and not on them as individuals, and it could be executed only for the purpose of administering the estate committed to their charge as executors. Sweeney v. Warren, 127 N. Y., 426; 40 St. Rep., 304. Had it been necessary to sell the realty to pay the debts of the testator, undoubtedly the power might have been exercised for that purpose, and so we shall assume it could have been for the purpose of dividing the estate among those entitled thereto. But we cannot conceive of any other purpose for which it could have been exercised. It is not asserted that any of the testator’s debts are unpaid, nor is it claimed that the attempted execution of the power by the surviving executor was for any purpose except to divide the avails arising from the sale among the devisees, their heirs, grantees, and the holders of liens. There being no debts, it is apparent that the power could be exercised only for the purpose of dividing the "estate among those entitled to it. The power, so far as it authorizes a sale for the purpose of division, (and that is the only purpose for which it now exists) is a mere collateral one, or power in gross, and is not appurtenant to any estate granted to, or trust reposed in, the executors.

In discussing this caso we shall assume, without deciding, that, when land is devised in fee to persons competent to convey their interests, a power conferred on executors, as such, to sell and convoy the same land, and divide the avails among the devisees, is valid, and is not repugnant to the devise. Was this power of sale, which could he exercised only for the purpose of division among the owners of the fee, an absolute bar to an action in equity to effect-the same purpose ? It seems to us that the question admits of but one answer, and that in the negative. It may be that in a case in which it should appear that for any reason a sale under such a power .would be more beneficial to the parties’ interest, or that a present sale would be injurious to their interests, or that some of the owners were not competent to convey, a court of equity might withhold its judgment. But this question we do not decide, for under our statutes the right of a tenant iu common having an estate of inheritance, or an estate for life or for years, to maintain an action for the partition of the interests is a legal right. Code Civ. Pro., § 1532. The appellants in this case did not claim on the trial that a present partition would not be for the best interests of the parties, and standing as they did, asserting the validity of the sales admitted to be made pursuant to the power for this very purpose, they were not, and are not, in a position to make such a claim. In Morse v. Morse, 85 N. Y., 53, an action for partition, it was said : “ The plaintiff, Charles D. Morse, is one of the sons of the testator, and claims that by the will the five children of the testator first mentioned, and the trustee of liis son Edwin, took upon the testator’s death a present legal estate in the farm -as tenants in common, subject to a bare qiower of sale vested in the executor. If this is the true construction of law, the right of the plaintiffs to maintain an action for partition may be conceded.” c

In Blanchard v. Blanchard, 4 Hun, 287; 6 Thomp. & C., 551, affirmed 70 N. Y., 615, an action for partition, the testator, who died May 10,1873, devised to his widow and to two of his children the use of his farm until June 29, 1890. He further directed that within two years after June 29, 1890, his executor should sell the farm, and divide the proceeds arising from the sale among certain persons named in the will. An action to partition ■ the farm was brought by one of the devisees within two years after the death of the testator, and it was held that the naked power of sale vested in the executor did not suspend the power of alienation, and that its existence was not a bar to an action brought for partition. The execution of a bare power of sale is not a conveyance bjr the donee of the power, but is regarded as the act of the donor of the "power. It was said in the case last cited: “ Before execution, the power is a lien or charge upon the lands, 1 Rev. St., 735, § 107, and has no greater effect upon the interests of heirs or devisees than a mortgage made by the testator, payable at the time fixed for the execution of the power, Would have had. No one would question the validity of a mortgage given by a testator to secure the payment of a sum of money twenty years after his death because it contained the usual power of sale. No doubt such a power, in either case, obstructs the sale or other disposition of lands by the owner, but not by reason of the time limited for the exercise of the power. It would ordinarily have the same effect if no restriction as to time were imposed; but the absolute right of alienation of the fee is not affected thereby. In the case before us, the residuary devisees took an estate in fee, which, notwithstanding the incumbrance of the power, is neither defeasible nor conditional, and they may alienate it at pleasure. A conveyance from them and the devisees of the term would pass the whole estate.”

In Purdy v. Wright, 44 Hun, 239, fully reported 8 St. Rep., 243, an action for partition of land, it was held that the existence of a naked power of sale in executors for the purpose of division of the proceeds was not a bar to an action by the devisees for partition. In that case, however, the power had remained unexecuted for more than twenty-five years. In Duffy v. Duffy, 50 Hun, 266; 19 St. Rep., 228; affirmed 130 N. Y., 654; 41 St. Rep., 950, an action for partition, the testator devised one-half of his real estate to his widow, but died intestate as to the remainder, which descended to his heirs. He authorized bis executors “ to sell and dispose of said estate at public auction, and to convey the same, with full power to execute a good and sufficient deed in law therefor." It was held that, notwithstanding this power of sale, an heir could maintain an action for partition. The case last cited was commented on in Fritz v. Fritz, 43 St. Rep. 755, where itwas said :

“ The case of Duffy v. Duffy, 50 Hun, 266; 19 St. Rep., 228, in nowise conflicts with this view. In that case there was no devise of the real estate in question or of the proceeds thereof. The will contained a mere naked power of sale, and all that was held was that the real estate descended to the heirs at law; and, unless the power of sale was exercised, its existence was no bar to partition.”

Henderson v. Henderson, 113 N. Y., 1; 21 St. Rep., 800, was an action for the construction of a will which authorized the executor to take entire charge and management of all the real and personal estate of the testator, lease it; collect the income, rents and profits, make-investments, insure, pay taxes, make repairs, pull-down buildings, and erect new ones. It also contained a power to partition or sell the realty. The question in the case was whether a valid trust was created, and, if so, whether it suspended the power of alienation beyond the statutory limit It was held that a trust was not created, but that the executor was invested with the power of sale, together with the power to manage the estate and receive the income and rents until partitioned by him, or sold by him, as authorized by the will, and the avails divided. In the course of the discussion it was said: “ The powers of partition and of sale being Valid, however, the children of the testator took their interests at his death subject to their exercise, and hence one or more of them could not maintain any compulsory partition proceedings, pending the existence of the right in the executor to exercise his powers.”

This question was not involved in the case, and the observation quoted was by way of argument. In Prentice v. Janssen, 79 N. Y., 478, the will under consideration directed the executors to sell all of the realty, and convert it into money. This was a conversion out and out. The court held that the beneficiaries under the will could, by electing to hold the property as realty, defeat the power of sale. It was said: “ The testator, by the authority and direction to his executors to sell the real estate, constructively converted the same into personal estate; and, being thus converted, the residuary legatees were entitled to take the same as such, and had a right, at their election, to convert it into real estate. No distinct and positive act is required for such purpose, and the rule applicable to such a case is that, in the reconversion of real estate, a slight expression of intention will likewise be considered sufficient to demonstrate an election on the part of those absolutely entitled.”

In that case it was held that the land could be partitioned among the owners, notwithstanding the power to sell. When land is devised upon a trust to sell and pay the proceeds to.A., although no interest in the land is expressly given to A., yet in equity he is the owner, and the donee of the power must convey as the equitable owner directs. Leigh & Dalzell Conversion, 169. Aside from the authorities, we think, on principle, the power, assuming its validity, was not a bar to a voluntary partition among the owners of the fee, nor to an action by any of them for partition, The sale of the land not being necessary for the payment of debts, the executor had no control over it for the purposes of administration. The owners had the absolute right of possession, together with the right of collecting the rents. They could convey it or divide it among themselves on such terms as they might agree, and either course would extinguish the power, when land is converted into money by a will, the beneficiaries may reconvert it into realty, if it is not needed for the purposes of administration ; and it becomes such, and the power of the executor to sell is extinguished. Jarm. Wills, (6th Amer. Ed.), 562. In this case the devisees had renewed old leases and executed new ones of the property, and treated it as land held by them in common. It doe» not appear that the attempted execution of the power was at the-request of any of the devisees.

On the 17th of April, 1890, Banning, the surviving executor,, assuming to act under the power, sold at public auction No. 204 Fifth avenue to George H. Warren, for $270,000, subject to the-mortgage thereon for $50,000 held by the Mutual Life Insurance Company. The purchaser executed a contract, and paid ten per cent., but afterwards refused to take the title because of the pending litigation in respect to it, and brought an action for the recovery of the money he had paid. The records of this court show that lie was successful, and that it was held that the executor could not compel the specific performance of the contract. Warren v. Banning, 50 St. Rep., 810; 21 N. Y. Supp., 883. No. 6 Mulberry street was bid off at the same sale for $27,000, and the East Seventeenth street property for $47,000, by Benjamin P: Fairchild, for Mrs. Banning and Mrs. Kendall, but nothing has been paid for either piece of property, and Mr. Fairchild never executed a contract, but assigned his bids to Mrs. Banning and Mrs. Kendall. It does not appear that there has been a valid execution of the power of sale, or that any of the land has passed to purchasers under it. Again, it appears by the record that the appellants to this action moved for and obtained the final judgment confirming the sale made under the interlocutory judgment, which directs that five-sixteenths of the avails of the sales be paid to the plaintiff, and a like proportion to Mrs. Kendall and to Mrs. Banning, and une-sixteenth to Abner M. Wilcox. Whether these appellants have accepted of these moneys does not appear from the printed case. The effect of the power of sale and its attempted execution is not dependent upon any question. of fact, but is a pure legal question, arising upon the face of the will and a few undisputed facts. This branch of the case was not involved in any question tried before or submitted to the jury. By the course taken on the trial, this action was converted into a creditors’ bill in favor of Maria L. Kendall, Helen J. Banning and Abner M. Wilcox, to set aside the conveyances from Mellen to Bilis, and from the latter to the plaintiff, upon the ground that they were fraudulent and void as against creditors.

The record shows that October 18, 1889, Abner M. Wilcox recovered a judgment against Abner Mellen for $351.53, on which an execution was returned December 19,1889, wholly unsatisfied; and that January'24, 1890, Maria L. Kendall recovered a judgment against Abner Mellen for $1,386.34, on which an execution was returned March 18, 1890, wholly unsatisfied; and that on Jan. 24,1890, Helen J. Banning recovered a judgment against Abner Mellen for $1,386.34, on which an execution was returned March 18, 1890, wholly unsatisfied. The record also shows that February 7, 1891, three judgments were recovered against Abner Mellen for $3,991.57 each—one by Maria L. Kendall, one by Helen J. Banning, and one in favor of William C. Banning, as one of the administrators of Helen M. Mellen, deceased. It does not appear that executions have been issued or returned on the three judgments last mentioned. The defendants, for the purpose of establishing the fraudulent character of the conveyances, asserted and attempted to maintain, on the trial before the jury,, two propositions : (1) That the property conveyed to the plaintiff largely exceeded in value the amount in which Abner Mellen was indebted to her. (2) That at the time of the conveyance the grantor was insolvent, and indebted for the sums for which the aforesaid judgments were recovered, and also indebted to the estate of his father for $77,000 on nine notes given by the son to the father January 28,1885. Bight of the notes were for $8,375, and one for $10,000. The first note to become due was payable January 31, 1890, and a note fell due on each 31st day of "January thereafter. The one for $10,000, the last to mature, is to become due January 31, 1898. The contest waged before the jury was principally over these two questions of fact. The court, at the request of the counsel for the defendants, submitted to the jury the following written questions : “ First. Was the indebtedness of Abner Mellen, Jr., to the plaintiff on November 5, 1888, the balance shown by the books of Mellen & Co., and amounting, with interest, to $19,889.98? If not this sum, what sum?” The jury answered that the indebtedness was $82,487.09. “Second. What was the value of the interest in the real estate conveyed to plaintiff on November 5, 1888? Was it $107,000 ? If not, what was it?” The jury found that the value of the interest conveyed in the real estate, at the date when conveyed, was $80,000, and the jury also found a general verdict for the plaintiff.

It is urged that the special findings which embrace the important issues in this case are contrary to the weight of the evidence. We will briefly examine the evidence on which these findings rest.

First, is the evidence sufficient to sustain the finding that the value of the five-sixteenths interest conveyed to the plaintiff at the date of the conveyance was worth $80,000? Two experts were called by each side, and gave their opinion of the value of the property. The property was described and its rental value proved, and from this evidence and the opinions of the four experts we think the finding of the jury as to value cannot be set aside as against the weight of evidence. The learned counsel for the appellants concedes in his brief that the result of the evidence of Meyer, their principal witness on the question of value, was that the interest, when conveyed, was worth $95,000, but $15,000 more- than the value as found by the jury. This difference of opinion as to value of this kind of property involved in litigation, part of the owners claiming that title could only be acquired to it through the exercise of the power of sale, and one of the owners -claiming title could only be acquired through a judgment in partition, is not so wide as to authorize this court to say that the opinion of the jury is contrary to the weight of evidence. On the contrary, upon a consideration of all the circumstances, we think that the estimate of the jury of the value of the property was a fair one. The learned trial judge, who saw the witnesses and heard them testify, so thought, and confirmed the verdict.

Is the amount of Abner Mellen’s indebtedness to the plaintiff, us found by the jury, sustained by the evidence? It was proved beyond dispute, and partly by witnesses called by the defendants, that the d lain tiff for several years prior to the conveyances, was in the receipt of a considerable income from her own estate. The amount of her income was established by checks for dividends due her on shares which she held in various corporations. These checks were produced, and are a part of this record. ' That she was the owner of these dividends was conclusively established, and was not questioned. She testified (and in this she was supported by the testimony of others) that many of these checks were turned over to the firm of Mellen & Co., of which her husband was a member, and that others were turned over to her husband, or applied in payment of the -expenses of the family. It is true, as the learned counsel for the "appellants claims, that as to a few of these checks the testimony given by the plaintiff , conflicts with that given by her husband, but in not very important particulars. This we did not regard as singular, or as evidence of perjury or intended, fraud on the part of either. There was a great number of these • checks received from time to time during several years, and it would be most remarkable if both should agree as to when and how every one was turned over, and the avails applied. The disagreements pointed out in the brief of the counsel are of a nature that tend to show that the husband and wife had not agreed upon a statement of what should be testified to by each; to support the plaintiff’s case. We did not think that we should be justified in holding, contrary to the verdict of the jury, and. confirmed by the judge who heard the case, that the jury should, have found that the plaintiff and her husband testified falsely in-respect to the use that was made of these various checks. Had there been doubt about the fact that the plaintiff actually possessed these moneys, a different question would be presented. We are of the opinion that the evidence is quite sufficient to support the finding of the jury that these various checks were turned over or applied for the benefit of the plaintiff’s husband, as testified to-by them.

Mellen’s indebtedness for the sum represented by these checks-having been established, was the jury justified in including, in-the sums of the indebtedness, compound interest? An executory agreement between debtor and creditor that compound interest shall be paid cannot be enforced by the creditor’. But if the interest be added to the principal, and a new security given, it is valid and enforceable against the debtor, or ah debtor may, in settling the claim, pay compound interest, and, if not done with-intent to defraud creditors, no advantage can be taken of it by them. From 1870 to January 30, 1883, the firm of Mellen & Co.. was composed of Abner Mellen, Sr., owning one-half interest,. Abner Mellen, Jr., owning three-eighths interest, and John B. Taylor, owning one-eighth interest. On the date last mentioned, Taylor sold out his interest in the firm, and retired. He was called by the defendants, and testified that, on the date of his withdrawal1 from the firm, Abner Mellen, Jr., was indebted to the firm in the sum of $77,000, for which the nine notes were given, and that he, Taylor, was indebted to the firm in upwards of $4,000, for which-he gave seven notes, and that all of these notes were taken by the father. When Taylor withdrew, the remaining members of the firm assumed all of its liabilities. The firm was continued by the father and son under the same firm name until April 30,1885r when the father transferred bis interest to the son, who agreed to pay all of the debts of the firm, and the son continued the business in his own name until May, 1888. Campbell, who was called; by the defendants, testified that be was the bookkeeper of Mellen & Co. and Abner Mellen, Jr., from April 10, 1881, to December 31, 1887, and that during that time it was the custom of the firm, at the end of each calendar year, to credit Mrs. Mellen-with interest on all sums of money which she had advanced during the year, and so form a new principal for the next year. Mellen testified in his deposition that it was agreed by the firm and by him that his wife should be credited with such sums as she advanced to the firm when advanced, and that interest should be allowed upon each item until the close of the year, and then add tlieinterest to the account, and form a new principal. There is no evidence in the case that tends to contradict this, but the books of the firm, and of Abner Mellen, Jr., show that that, practice prevailed for several years. Such being the agreement, the creditors of Abner Mellen cannot complain that, he fulfilled the agreement by making a conveyance of his property. The fact that part of the consideration for the conveyance by Abner Mellen to the plaintiff was for compound interest allowed pursuant to a previous agreement and practice-between them is no ground for setting aside the deed as fraudulent. A failing debtor may pay, or secure to be paid, a debt, barred by the statute of limitations, or one which he may defend as usurious; or, if he has agreed to pay interest upon unpaid interest, he may pay or secure its payment; and, if done in good faith, the payment made or security taken cannot be set aside by his creditors. The amount of the husband’s indebtedness to the-wife was a question of fact for the jury, and the evidence is sufficient to sustain their finding.

The jury found that the father, in his lifetime, surrendered to the son the nine notes for $77,000. Neither the existence-nor the amount of this debt was an issue of fact on which the decision turned, hut the amount of Abner Mellen’s liabilities to-others was competent as bearing upon the question of the intent with which the conveyance to the plaintiff was made. The transfer to her having been found to have been made in good faith and for a sufficient consideration, the fact that he owed his father’s estate $77,000 is not sufficient to justify setting aside the conveyance as fraudulent. The money arising from the sale under the interlocutory judgment has been deposited with a trust company, subject to the order of the court, and if it shall be determined in future proceedings that the estate-of Abner Mellen, Sr., has a claim against the plaintiff’s husband which should diminish his share in his father’s estate, it can be adjusted by an appropriate direction.

The view we have taken of the questions hereinbefore discussed renders it unnecessary to determine whether a judgment setting aside the conveyances as fraudulent could have been rendered in this action without making the assignee or heirs-at-law of Abner Mellen parties.

By an order made by this court in this case, the referee appointed by the judgment to sell the property has been directed to deposit the five-sixteenths of the avails arising from the sale, and claimed by the plaintiff, with a trust company to await the-final determination of the question, what liens existed on this-share which are prior to the plaintiff’s claim. By this order the subject of the litigation is the money instead of the land.

We could stop the discussion at this point, were it not for the fact that it may hereafter be claimed, in behalf of the plaintiff, that by the general verdict and the thirty-second and thirty-third findings of the court it is established that Abner Mellen, in his lifetime, surrendered his claims against his son to him. As we have before stated, this was not an issue in the case, but a mere incidental fact bearing on the real issue, and it has been so held by this court. In re Mellen's Estate, 21 N.Y. Supp., 811; 50 St. Rep., 750. The thirty-second and thirty-third findings of fact cannot, in the face of the written admissions of Abner Mellen, Jr., and the other evidence, which shows that the notes were uncanceled and in the possession of his father at his death, be sustained, but must be set aside, together with the general verdict, in so far as it can be deemed to sustain these findings. Whether Abner Mellen, Jr., was, or was not, indebted to his father’s estate could not be determined in this action without the presence of his administratrix, in her representative capacity, as a party. It is usual to determine the existence of liens on the shares of tenants in common by a reference, and we think that the clauses in the final and interlocutory judgment which direct the referee to pay to the plaintiff five-sixteenths of the avails of the sale should be reversed, and her interest be directed to be paid into a trust company, to await the determination of what, if any, liens existed on her share, and that any party to this action be given leave to apply to bring in any such parties as may be necessary to have determined what liens exist, their amount, and whether prior or subsequent to the claim of the plaintiff, and that a reference should be'ordered for the purpose of determining this question. Several exceptions to the reception and exclusion of evidence are discussed in the brief of the learned counsel for the appellant, some of which might be regarded as sufficient to require a new trial in a legal action; but this is an equitable one, and we think that substantial justice does not require that a new trial be granted, and that these exceptions should be disregarded, pursuant to § 1003, Code Civ. Pro. The judgments should be modified by reversing the provisions holding that the plaintiff is entitled to five-sixteenths of the avails of the sale, free from any lien, and also those provisions directing the avails to be paid directly to her; and, as so modified, the judgments should be affirmed, without costs to either party.

Yak Brukt, P. J., and Parker, J., concur.


text:
    I. Osgood Carleton et al., Resp’ts, v. Lombard, Ayres & Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Sale—Wabrahty.
    In an action for alleged breach of a written contract to deliver a specified quantity and quality of petroleum, it appeared that the petroleum delivered was of the quality specified, and sustained the tests called for therein. Held, that a warranty would not he implied that the oil was merchantable and free from defects, and that an action would not lie for damages caused hy latent defects.
    3. Same.
    In such case it appeared that the rules subject to which the contract was made provided that when the petroleum was delivered to a ship for transportation,-acceptance of the same by the buyor’s inspector should be an acknowledgment that it complied with the contract, and his certificate that it complied -with the contract should be accepted. Held, that such delivery and acceptance constituted an assent that the petroleum complied with all conditions of the contract, either express or implied.
    3. Same—Evidence.
    In such case, on the issue whether the defects in the petroleum could have been discovered by inspection,' a judgment roil in an action for damages against the buyers by purchasers from them of the petroleum was irrelevant, as it appeared that the 'only question in such action was whether the petroleum was merchantable and in good condition when placed on the ship.
    Appeal from a judgment of the circuit court for an alleged breach of warranty upon a sale of oil.
    The plaintiffs are partners under the firm name of Garleton & Moffatt, and the defendant is a domestic corporation engaged in refining petroleum for export, having its refinery at Bayonne, in the state of New Jersey. On the 10th day of January, 1887, the parties entered in a contract, of which the following is a copy :
    Case Oil Contract.
    ■ -g >S £ ¡I} g" 2j S g x-g ¡5 g .<8^ 8 ^
    New York, January 10, 1887. Sold for account of Mess. Lombard, Ayres & Co. To Mess. Garleton & Moffatt "Fifty-five thousand (55,000) cases ten (10) per cent more or less, each case packed with two of their patent cans with low screw tops or nozzles and brass labels containing five (5) gallons each of refined petroleum of their “ Stella ” Brand, Color Standard White, or better, fire test 76 degrees Abel or upward at eight and one half (8£) cents per gallon, cash on delivery. To be delivered in yard free of expense to vessel to be ready not earlier than the twenty-fifth (25th) of January, 1887, nor later than the tenth (10th) of February, 1887, with twenty-five (25) days to load. - Brass labels one-half (|) of one (1) cent each. AIL drawbacks to accrue to sellers. Buyers to complete bond, and furnish landing certificates. In case of damage by fire or other accident by reason of which sellers are unable to deliver the goods in the time specified in this contract, a notice from sellers that they intend to repair their works shall make it the duty of the buyers to elect within 96 hours whether they will allow an extension of time, sellers paying any demurrage that may accrue, or accept other brands. Subject to the rules of the New York Produce Exchange. ■ Babcock & Cox, Brokers. Brokerage i; of one per cent by seller. ■Indorsed:
    y ° 8 g gj Et g-8 ^ g ^ ^ g B (g | g P-
    Accepted, Lombard, Ayres & Co.
    The marginal note, “ No responsibility taken, unless by special ■agreement,” refers to the brokers’ liability. . The plaintiffs and the president and the vice-president of the defendant are members of the New York Exchange. Both parties to the contract understood that the oil was to be shipped to Calcutta by a sailing vessel.
    The following are the rules of the New York Produce Exchange: “Bulé 3. It shall be the duty of the committee on petroleum to approve and license as inspectors for.the various-branches of the petroleum business such persons, members of the-New York Produce Exchange, "as, upon examination, are found duly qualified. The committee shall have the power to revoke-such license, for cause.” “ Bule 10. Befined petroleum shall be-standard white, or better, with a burning test of 110 degrees:Eahrenheit or upward, and of a specific gravity not below 44 degrees Beaume, United States Dispensatory standard.” “Buie 46.. When goods are delivered to vessel by buyers’ orders, the acceptance of them by buyers’ inspector shall be an acknowledgment that the goods are in accordance with the contract.” “ Buie59. Buyers shall have the right of naming their inspector, but. shall do so at least five days before the maturity of the contract;. failing in which, the sellers may employ, at buyers’ expense, any regular petroleum inspector approved by the committee on petroleum, and his certificate that the oil is in conformity with the contract shall be accepted. On a contract for prompt delivery, or where no notice is required, buyers shall name their inspector when contract is executed; otherwise, sellers may appoint the inspector at buyers’ expense.” “ Buie 66. All transactions in-petroleum and its products among members of the New York Produce Exchange shall be governed by the above rules, but nothing therein contained shall be construed as interfering in any way with the rights of members to make such special conti-acte- or conditions as they may desire.”
    On the 10th of January, Carleton & Moffatt contracted to sell the cargo of oil to Graham & Co., a firm engaged in business at Calcutta, India. I. H. Archer & Co. were inspectors of petroleum, appointed by the New York Produce Exchange, whom the plaintiffs selected to inspect the oil to be delivered. Before March 1, 1887, the oil was delivered at the seaboard yard, at which the Corby was loaded, and inspected by I. H. Archer & Co., who gave the following certificate:
    45 « f&.feP S a a E £ .5!! O d 03 05 IS 8 8 3. 9 . o <5 •s^° -■H ** to rH
    New York, March 1, 1887.
    We hereby certify, That we have inspected the contents, Fifty-three thousand, two hundred and ninety-five (53,295) Cases Befined Penna. Petroleum, Shipped by Messrs. Carleton & Moffatt on board the-Br. Ship Corby and report the same as follows : Brand: Stella. Mark [G.] Nos. 80 c 133 in lots of 1000
    Color: Standard white or better. Abel test: Seventy-six (76°)Fahr. & upwards. Gravity: Forty-four and a quarter to forty-six. (44-1-46°) B.
    1. H. Archer & Co., Inspectors. .

      “ The Corby, on which the oil was shipped, sailed from the port of Hew York early in March, 1887, and arrived at Calcutta June 8th of the same year. Upon the arrival of the vessel in Calcutta many of the tin cans which held the oil were found so -corroded that their contents had leaked into the hold of the vessel, greatly damaging the entire shipment. In July, 1888, Graham h Co. brought an action in the supreme court of this state ■against Carleton & Moffatt for the recovery of the damages, alleging that at the time of the sale the vendors represented and warranted to the plaintiffs, Graham & Co., that the said cans contained refined petroleum, of the Stella brand, of good and merchantable quality; that the same had been properly refined, and was free from any water, acid, or other vicious substance which would injure the same, or render the same unmerchantable; that the same was contained in good and strong tin cans of suitable material, properly inclosed in cases also of suitable material, and that the said cases, cans and contents were in a condition to be properly transported to Calcutta by the said sailing vessel, and to be there delivered in good order and condition."’ This allegation was denied by Carleton & Moffatt. Upon the trial of this issue, .a verdict was rendered against Carleton & Moffatt for $44,612.48, upon which a judgment was entered for $48,098.75 damages and costs. In March, 1891, this action was begun to recover the .amount which the plaintiffs in this action, the defendants in the former one, had. been compelled to pay, including the costs and expenses incurred in the defense. Lombard, Ayres & Co. received notice of the action against Carleton & Moffatt, and assisted in the defense thereof.

      Albert B. Boardman (Benjamin F. Tracy, of counsel), for app’lt; R. Burnham Moffatt (Esek Cowen, of counsel), for resp’ts.
   Follett, J.

The plaintiffs concede that the oil delivered by "the defendants was of the kind and quality called for by the written contract, and possessed the qualities and sustained the tests required thereby, but they insist that there were latent defects in the article, causing the damages recovered by Graham & • Co. 'They assert that the law implies a warranty by manufacturers that their products are free from latent defects caused by imperfect or "unskillful workmanship, which is collateral to the contract of sale. Originally, the word “ warranty,” as used in connection with sales, was applied solely to contracts for the sale of existing articles, identified at the time of sale, the title to which passes under the contract; and the obligation arising from a warranty was held to be a purely collateral undertaking, which survived the delivery of, and the payment for, the article sold. The nature of a warranty is clearly stated in Cutter v. Powell, 2 Smith Lead. Cas., 6th ed., 27:

“A warranty, properly so called, can only exist where the subject-matter of the sale is ascertained and existing, so as to be capable of being inspected, at the time of the contract, and is collateral engagement that the specific thing so sold possesses certain qualities; but, the property passing by the contract of sale, a breach of the warranty cannot entitle the vendee to rescind the contract, and revest the property in the vendor without his consent. * * * But where the subject-matter of the sale is not in existence, or not ascertained, at the time of the contract, an engagement that it shall, when existing or ascertained, possess certain .qualities, is not a mere warranty, bat a condition, the performance of which is precedent to any obligation upon the vendeeunder the contract, because the existence of these qualities, being part of the description of the thing sold, becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted.”

But in the modern cases the word has been used as synonymous with stipulations in executory contracts prescribing the qualities of the goods to be sold, the title to which is to be vested in thevendee at a future day. In the case of executed sales, the warranty is a collateral undertaking, but in the case of executory sales the agreement to deliver articles of a specified standard of excellence is not a collateral undertaking, but is part of the contract to sell and deliver. Warranties are express or implied. An express warranty arises when the vendor makes an affirmation in respect to the quality of the goods sold. An implied warranty arises : (1) When an examination of the goods is impracticable, a warranty will be implied that they are merchantable. (2) On an executory contract for tlic sale of goods to be manufactured or produced for a particular purpose or use, a warranty will be implied that they are fitted for such purpose or use. (8) A warranty is implied that there are no latent defects, in case the seller, being a manufacturer or producer, might have provided against the existence of the defects. There are other cases in which warranties are implied, but they are not germane to the case at bar. The contract is full and explicit. By it the vendors were bound to deliver a specified quantity and kind of oil, having prescribed qualities, and it makes no difference in this case whether the stipulations relating to quality be called “ warranties ” or “ conditions,” for they have all been performed by the defendant. This is conceded. The plaintiffs seek to recover, not for a breach of any of the stipulations in the written contract, but for a breach of a condition or warranty that the oil was properly manufactured, merchantable, free from defects, and in condition to.be transported to Calcutta by a sailing vessel, and there delivered in good order and condition, which the plaintiffs assert, by implication of law, is a part of the contract. It is well settled that, when an article is sold under a contract which specifies the qualities which it shall possess, no matter whether the language he a condition or a warranty, the law will not, except in special cases, imply a warranty or condition that the article has other qualities. A warranty or condition, in a contract of sale, that the article sold has certain qualities, excludes the implication of a warranty or condition that it possesses other qualities. Baldwin v. VanDeusen, 37 N. Y., 487; Parkinson v. Lee, 2 East, 314; Budd v. Fairmaner, 8 Bing., 48-52; Dickson v. Zizinia, 10 C. B., 602; Deming v. Foster, 42 Ñ. H., 165; Whitmore v. South Boston Iron Co., 84 Mass., 52. The reasons for the rule are so well stated in the cases cited, and are so obvious, that a restatement oí them is not required- A warranty of soundness does not exclude an implication that the vendor warranted bis title, nor is the rule applicable to cases of fraud.

The discussion of this case might well be ended at this point, but there are rulings excepted to which are fatal to the judgment. Tire contract was, by its terms, “ subject to the rules of the New York Produce Exchange,” of which association the contracting parties are members. These rules must be taken as part oE the contract, and given the same effect as though incorporated therein. Buie 46 provides:

When goods are delivered to vessel by buyers’ orders, the acceptance of them by bujmrs’ inspectors shall be an acknowledgment that the goods are in accordance with the contract”

Buie 59, quoted in the statement of facts, pz'ovides that the certificate of the inspector “that the oil is in conformity with the contract shall he accepted.” In this case the goods were delivered to the Corby by the buyers’ orders, and they were accepted by the buyers’ inspector, which is an acknowledgment that the goods were in accordance with the contract. The inspection and acceptance must he deemed to be an assent that the goods comply with all of the conditions of the contract, whether those conditions are expressed or implied. When a manufacturer enters into a contract to make and deliver specified articles, which are to be identified and inspected by the vendee, with the right of rejection in case they do not conform to the contract, a right of action for defects in the article does not arise, unless the defects could not have been discovered by the ordinary tests known to the trade, or unless there is a warranty or stipulation in regard to the quality which is manifestly intended by the parties should survive acceptance. Studer v. Bleistein, 115 N. Y., 316; 26 St. Rep., 400. And so, if it be assumed that the law will imply a condition or warranty that the oil was, merchantable, free from defects, and in a condition to hear transportation to Calcutta without injury, the right of action for such defects would not survive inspection and acceptance, in case the defects were discoverable by ordinary tests, known to, and used by, those dealing in such commodities, for there is no evidence in the case which would justify the inference that the warranty or condition which we are asked to imply was intended to survive acceptance after inspection.

The evidence given by the plaintiffs tended to show that the defects complained of could have been easily ascertained at the time when, and at the place where, the oil was delivered to them. The defendant offered to show that these defects could have been ascertained at the time and place of delivery by well-known tests. This offer was excluded, and an exception taken. Neither express nor implied warranties cover known defects. When a manufactured article is tendered in performance of a contract of sale under which it is’the duty of the vendee to inspect and accept or reject, the vendor does not remain liable for patent defects, or defects discoverable by the application of known tests, unless he so agrees. Monitor Milk Pan Co. v. Remington, 41 Hun, 218; Studer v. Bleistein, 48 id., 577; 15 St. Rep., 908; aff’d 115 N. Y., 316 ; 26 ,St. Rep., 400. The dissenting opinion in the Monitor Milh Pan Co.'s ■case was placed on the ground that it was conceded that when the pans were inspected and delivered, the parties to the contract knew of no test by which the defect subsequently developed by actual use could have been discovered. In that case the defendant’s expert testified that he did not know of any test which would have determined whether the enameling was well done or not. In that case the referee found that the test by lactic acid was unknown to both' parties at the time of inspection, was not then in practical use, and that there was no evidence that it was then known, except to scientists. The judgment roll in the action brought by Graham & Go. was neither proof nor evidence -on this question, because no such issue was involved in that action. The oil was not sold to Graham & Co. subject to the right and duty on their part to inspect or reject, nor did they purchase it subject to the rules of the New York Exchange. 'The plaintiffs in this action allege in their complaint that it was ruled on the trial between Graham & Go: and Oarieton & Moffatt that the only question for determination in said case was whether or not said oil, at the time of its shipment on board the Corby at Bayonne, was merchantable oil, of good quality, and in good condition.” In the face of this allegation, it cannot be successfully contended that the former judgment was evidence bearing upon the question whether the defects in the oil could have been discovered by inspection.

The view we have taken of this case renders it unnecessary for us to determine whether rule 46, which was made part of the -contract, is an arbitration clause. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., and Barrett, J., concur.


author: O'Briem, J.

text:
    William H. Roe, Resp’t, v. Alexander W. Hume et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Assignment eor creditors—Firm: debts.
    An assignment for the benefit of creditors made by defendant individually and as surviving partner directed payment pro rata from the firm property of an indebtedness alleged to be defendant’s individual obligation, before providing for payment in full of the firm debts. The obligation in question was scheduled as an individual one, but defendant testified that it was incurred for the firm’s benefit. Held, that the court was justified in finding that it was not a firm obligation, and in setting the assignment aside.
    3. Same—Action to set aside—Judgment.
    In an action against a surviving partner by a firm creditor, the fact that judgment was only entered against defendant as survivor, instead of individually and as survivor, does not prevent the execution lien from attaching both to the defendant’s individual property and the firm property, so as to maintain an action by the creditor to set aside, on the ground of fraud, an assignment for the benefit of creditors by defendant individually and as surviving partner.

      Appeal from judgment entered in a judgment creditor’s action, -setting aside a general assignment.

      Merrill & Rogers (Payson Merrill, of counsel), for app’lt, Spear; Putney & Bishop (James L. Bishop, of counsel), for app’lt, Hume; Alex. Thain, for resp’t.
   O'Briem, J.

The general assignment for the benefit of creditors was made by Hume to Spear, and this action was brought to set it aside upon two grounds: (1) Fraud appearing on the face of the assignment itself; and (2) fraud appearing outside of the assignment, as matter of fact The assignment- recited that it was made by Hume individually, and as surviving partner in the late firm of A. W. & T. Hume. It first provided for the payment of certain preferred partnership debts, and thereafter directed, by the fourth paragraph, payment pro rata of the individual debts of A. W. Hume out of the firm property, without first providing for the payment of firm debts in full. This has been held, in the leading case of Wilson v. Robertson, 21 N. Y., 587, which has been approved and followed in many subsequent cases, to be fatal to the validity of an assignment. Crook v. Rindskopf, 105 N. Y., 476 ; 8 St. Rep., 66 ; Booss v. Marion, 129 N. Y., 541; 42 St. Rep., 265; Haynes v. Brooks, 116 N. Y., 487; 27 St. Rep., 478. It is insisted, however, by the appellants, that, even if the language of the assignment permitted an illegal appropriation of the firm property to the payment of individual debts, the impossibility of an advantage from the supposed fraud, appearing from the facts in this case, repels the idea of any fraudulent intent. Thus, it is urged that there are no individual debts which are not also firm obligations, and that, therefore, no prejudice can arise to the partnership creditors. In Booss v. Marion, supra, it is said: In case of such an assignment it has been held, Hurlbert v. Dean, *41 N. Y., 97, if it be shown and found as a fact that there are no individual debts thus provided for, the presumption of fraud may be repelled, and the assignment upheld. * * * And in Crook v. Rindskopf, supra, the assignment having provided first for the full payment of firm creditors, such creditors, it was held, were not aggrieved, for the intention could not have been to defraud them by providing for the payment of individual creditors thereafter, even though the individual partners owned unequal amounts of individual property, which might be affected by a provision to pay the debts with the surplus pro rata. It never has been held that in a case where partnership assets have been by the assignment devoted, in certain contingencies, to the payment of individual debts, while a portion of the partnership debts remained unpaid, the stamp of fraud which the law places upon such a transaction can be rebutted by any evidence that the parties did not intend to commit a fraud.”

In this case there is a finding that there are individual debts amounting to about $25,000, and this finding is sustained, not only by the testimony, but by the verified schedules made by the defendants. But the appellants insist that these were, in addition, obligations of the firm, and that, therefore, no injury resulted. We think, however that the refusal to find that' these were also firm, obligations was justified. It is true that it was testified to by the defendant Hume that this indebtedness of $25,000 fox money loaned to him individually, and which, for the most part, was secured by mortgages upon his individual property, was applied to the benefit of, and used by the firm. This, however, did not necessarily make it a firm obligation, because it might well have been that this was a contribution by the individual member of the firm to the firm’s capital, or a payment of an indebtedness of the individual to the firm. But, whether it was or not, it is clear that all of this money was not loaned by the creditors to the firm, or upon the credit of the firm, but was loaned to Hume individually ; and in view of the verified statement that these were individual debts, secured by mortgages on individual property, we think the judge below was right in his refusal to find that they were firm obligations. The appellants are not, therefore, in a_ position to avail themselves of the plea that there was no possibility of the firm creditors being injured by this provision in the assignment. Our conclusion upon this branch of the case renders it unnecessary to pass upon the question whether or not the failure to properly state the Feeter indebtedness, and the security therefor, or the additional indebtedness of $5,000 omitted from the schedules, and which would appear to be a debt of the son, which was assumed by the defendant Hume, rendered the assignment fraudulent as matter of fact

Appellants’ further contention that the plaintiff cannot maintain this action for the reason that no execution has been issued as required by law, and, therefore, that the creditor has not exhausted his remedy, is not, we think, tenable. It is true the execution recites a judgment recovered against A. W. Hume “as survivoi',’’ and directs the sheriff to satisfy the same out of the property of the judgment debtor. The use of the phrase “ as survivor ” in no way limited the remedy of. the judgment creditor against the partnership property and the individual property of Alexander W. Hume. A judgment entered against him as survivor, and an execution issued thereon, became alien immediately upon his individual property, and that which, by reason of the death of his partner, became his by virtue of his survivorship. That this is so becomes evident when we consider the obligation resting upon the surviving partner, and his right to the assets of the firm. Upon such death, not only did the survivor continue his personal liability for the debts of the firm, but he became the owner of the property belonging to the firm, and primarily liable for its debts. We do not think, therefore, that the judgment on execution was defective, in the former not halving been entered, or in the latter not having been issued against Hume individually, and as survivor; but we think that the form in which the judgment was entered, and the execution issued thereon, made it a lien upon his individual property and that which, by virtue of his survivorship, he obtained.

There is one provision, however, in the judgment which should be modified. It provides “ that any judgment creditor of the defendant * * * may come in and have the benefit of this decree upon application to the court, previous notice of such application being first given to the plaintiff’s attorney.” It should have provided that a notice should be given to Alexander W. Hume, as well as the plaintiff. The judgment appealed from should be modified accordingly, and, as so modified, affirmed, with costs.

Follett and Parker, JJ., concur.


author: Parker, J.

text:
    Lucius J. Phelps et al., Resp’ts, v. The Gamewell Fire-Alarm Telegraph Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Sale—Evidence.
    In an action for the balance due on the contract price of a gas machine sold to defendant, the admission of evidence by plaintiff as to specific instances of mismanagement of the machine by defendants’ servants, causing it to fail to do its work, does not authorize the admission of evidence by defendant showing generally that its employes were skilled men.
    2. Same—Guaranty.
    A written contract for the furnishing of a gas machine fully described it, specified its power and capacity; and then provided that the seller would guarantee the same for two years. Meld, that the connection in which the word “guaranty” was employed did not even suggest the necessity of going outside the writing in order to understand what the parties intended to guaranty.
    Appeal by defendant from a judgment entered on a verdict and an order denying a motion for a new trial on the minutes.

      Charles A. Judson, for app’lt; O. B. Gould, for resp’ts.
   Parker, J.

The contract which lies at the foundation of this controversy is in writing, and comprised in the two letters following:

“Hew York, January 20th, 1890.
“ J. W. Stover, Esq., President Gamewell Fire-Alarm Telegraph Co., Boston, Mass.—Dear Sir: We hereby agree to furnish you a Domestic Gas Machine capable of supporting 400 lights of sixteen candle power each, with reservoirs of 720 gallon capacity; pressure tank, 60 gallon capacity; supply tank of 70 gallon capacity; 150 quarts of glycerine; 400 burners ; set up the same, and connect it with the gas pipes of your factory near Boston, Mass.; furnishing 50 feet of main—all complete and in perfect working order (except excavating and gasoline), and guaranty the same for two yearn—for the sum of $633.00, and traveling expenses of expert. Payments to be made as follows: $200, thirty days from starting of the machine ; $200, sixty days from starting of the machine; $233, ninety days from starting of the machine.
“ Respectfully submitted,
“ Phelps & Dingle.”
“N.. Y. City, February 10, 1890.
“ Domestic Gaslighting Co., N. Y. City.—Gentlemen : Please furnish for our new factory at Upper Newton Falls, Mass., the 400 light plant covered by your proposal, guaranties, etc., etc.
“ Yours very truly,
“J. W. Stover,
President."

The recovery had was for the unpaid balance of the contract price, with interest. Defendant alleged in its pleading, and attempted to prove, failure of performance on the part of the plaintiff, and sought to recover, by way of counterclaim, so much of the purchase price as it had already paid. Whether plaintiffs had fully performed their part of the contract was fully and fairly presented to the jury by the learned trial court, and theif finding was necessarily to the effect that it had been. It is true that for some reason the gas machine did not accomplish for the defendant what it had hoped and expected from it, but the jury likely reached the conclusion that this was due, not to the fault of the machine, but rather to the unskillful manner in which defendant’s émployes in charge managed it. After an examination of the testimony of the witnesses and' the correspondence between the parties, we have determined that the finding of the jury is fully supported by the evidence.

Appellant insists that, because certain evidence adduced on the part of the plaintiffs tended to show that the failure of the gas machine to meet the expectations of the defendant was due to the neglectful and unskillful manner in which it was operated, it was error for the court to have sustained the objection to the following question: “What is the character of the hands that you employ, so far as their capacity is concerned ? ” It is urged that the answer to the question, had it been allowed, would have shown that defendant's employes were skillful, and thus have tended to contradict plaintiffs’ testimony that the machine was unskillfully managed. In the first place, plaintiffs’ evidence was directed to specific instances of mismanagement, which resulted in a failure of the machine to do its work. These specific allegations the defendant could have met, if untrue, by calling the person in whose charge it had placed the machine to deny it, and at the same time demonstrate his qualification to manage it, but it could not be done by showing, in a general way, that its ■employes were skillful men. Doubtless, they were, in their particular field of labor, which the witness had already testified was that of manufacturing fire and police telegraph apparatus; but it does not at all follow, because they were skillful in that direction, that they understood how to manage a gas machine, and there is nothing in the record to suggest that the question was asked with any such purpose in view.

Exception was also taken to the refusal of the court to permit the same witness to tell what the. negotiations in regard to the machine were, prior to the two letters which constitute the contract between the parties. Defendant now contends that there is some ambiguity about the contract, particularly with reference to the use of the word “ guaranty,” which requires parol proof to make plain, and he cites, in support of his position, White's Bank case, 73 N. Y., 337. In the first place, it may be said that, if there was an ambiguity, defendant’s exception would not entitle it to a reversal. There was nothing in defendant’s question, or in the suggestion made by its counsel to the court, from which the court could understand that defendant claimed an ambiguity. Defendant’s president testified that he was the member of the corporation with whom the negotiations in regard to the machine were had. Then followed the question: “ Question. Will you tell us what they were ?” Objection was thereupon made “ that the contract had been reduced to writing, resulting in a merger of the prior oral negotiationsand in sustaining the objection the court but followed a well-recognized rule of evidence. Had the defendant any other object in view than that naturally suggested to the court by its question, it should have disclosed it. But we do not discover an ambiguity which seems to -call for parol testimony to make clear the meaning of the parties. Plaintiffs’ proposal was in terms definite. They proposed to furnish a “ Domestic Gas Machine.” As to its capacity, it was provided that it should be capable of supporting 400 lights of 16 candle power each, “ with reservoirs of 720 gallon capacity ; pressure tank, 60 gallon capacity; supply tank, 70 gallon capacity; 150 quarts of glycerine; 400 burners.” Thus was described the kind of machine, its power, and capacity. The proposal further provided that the plaintiff should set up the machine and make the connections, “ all complete and in perfect working order, and guaranty the same for two years.” As used, the word “guaranty” necessarily related to that which the plaintiffs promised in their writing. The connection in which it is employed does not even suggest the necessity of going outside of the writing in order to understand fully what the parties intended to guaranty. The cases cited by appellant, therefore, have no application. The judgment should be affirmed with costs.

O’Brien and Eollett, JJ., concur.


text:
    Samuel Bernstein, by guardian, Resp’t, v. The Dry Dock, East Broadway & Battery Railroad Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Railroad-Street—Negligence.
    In an action against a street railway company to recover damages ior personal injuries sustained by plaintiff, a boy of seventeen, while a passenger on one of defendants’ cars, the plaintiff testified that at his request the car came to a stop and started suddenly while he was getting off; in this he was supported by only one witness, who was contradictory in his statements. The conductor and .driver testified that plaintiff left the car while in motion, without making any request to stop it. It was also proved that shortly after the accident plaintiff had repeatedly declared that he jumped off the car while in motion, as he had often done. Held, that the jury’s finding that plaintiff was injured by the car’s suddenly starting while he was getting off was against the weight of evidence and a verdict in his favor should be set aside.

      Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      John M. Scribner, for app’lt; Donohue, Newcombe & Cardozo (Stephen C. Baldwin and Benjamin N. Cardozo, of counsel), for resp’t.
   Follett, J.

This action was brought to recover damages for personal injuries inflicted while alighting from one of the defendant’s cars, caused, as it is alleged, by the negligence of its employes. At the time of the accident, October 15, 1889, the plaintiff was seventeen years of age, and was living with his father at No. 106 East Broadway. Between six and half past seven in the afternoon of that day the plaintiff took a car on defendant’s line at Thirty-fourth street for the purpose of riding to his father’s residence and place of business. At or near Fourteenth street the plaintiff went to the front platform of the caz’, and rode until the accident. When the car reached No. 106 East Broadway, the plaintiff, while alighting from the front platform, fell under the car, and its forward wheel passed over his right leg, rendering amputation necessary. The plaintiff sought to establish on the trial, as a ground of recovery, that the car came to a full stop at his request, and suddenly started while he was stepping from the steps of the car to the ground. The plaintiff did not attempt to establish that the defendant or its employes were negligent in any other respect. The defendant sought to establish that the plaintiff got off the front platform while the car was in motion, without notifying the conductor or driver that he wished to get off. This was the issue upon which the plaintiff's right to recovery turned.

William Schugarmen, a witness called by the plaintiff, testified that he saw the car cross Pike street, which is 110 feet from the place of the accident, and that the horses were then trotting; that he was walking on the northwesterly sidewalk, and was near the boundary line between Nos. 101 and 102 East Broadway. He said: “I heard a scream, and I looked up and saw a boy tottering on the step of the car, and I ran to his assistance, but before I reached him he fell down, and the front wheel z-an over his leg. He fell face downwards, and his right leg under the wheel, and the wheel crushed it.”

He also testified that when his attention was attracted to the car by the scream it was moving at about the same speed as it was when it passed the corner of Pike street; that he shouted to the driver, “Down brake,” and “Stop,” and that the driver did stop his car within six or seven feet, but too late to prevent the accident. This witness did not testify that the car stopped before the accident, and his evidence, to say the least, is as consistent with the theory that it did not, as that it did, stop. It cannot be said that this witness directly corroborates the plaintiff on the issue whether the car was stopped to permit him to alight. Louis Bernstein, called as a witness by the plaintiff, testified that he saw the accidezit, and that it. happened in June or July. He said : “I stood near 106 East Broadway; I seen the car coming along, and a man wanted to descend from the car; the man called to the driver, ‘ Stop the car; ’• I saw him coming, and he said, ‘ Stop the car,’ and he did not stop the car. * * * The car was near Pike street when the man told the driver to stop; they were about four houses distant from it.”

Later he modified his evidence, and said that the plaintiff said, “ Stop the car ” when he was under it, and that he did not hear the plaintiff, when he stood by the driver on the platform, say, “ Stop the car.” This witness, who could not speak English, gave a very confused and contradictory account of what he saw, or thought he saw, and heard. He swore that the plaintiff asked to be let off ' when he was standing by the side of the driver, and afterwards said that he did not. Upon his cross-examination he testified that the car stopped, and then gave a sudden jerk, directly in front of No. 106. He admitted that on the former trial he testified that the accident happened in the spring of the year. This is all of the evidence given in behalf of the plaintiff in support of the issue which he tendered, and which he was bound to establish by a preponderance of evidence.

The defendant called the driver of the car, who testified that the plaintiff did not ask him to stop it, and that he left the car while it was in motion. The conductor testified that the car was not stopped until immediately after the accident, and he produced his report made at the time, which contains the same statement. At the time of the trial the conductor had been discharged from the defendant’s service. William P. Murphy, called by the defendant, testified that at the time of the accident he lived at No. 106 East Broadway, and was standing in the door of that house when the accident occurred. He said the car made no stop after passing Pike street until after the boy fell from the platform ; that when he attempted to alight the car was in motion. Joseph Ivory, a policeman, testified that at the time of the accident he was standing on the northwest corner of Pike street and East Broadway; that he saw the car passing, and that it did not stop until after the accident; that he assisted in taking the boy from under the car. Mendell Bluestone, called by the defendant, testified that he stood in front of 94 East Broadway, about 106 feet from the accident, and saw it; that the car had not stopped, but was going at the usual rate of speed until after the accident. Emma Winterfield, a witness called by the defendant, testified that at the time of the accident she lived at 101 East Broadway, and was standing in the front of her house at the time it occurred. She swore that the car did not stop between Pike street and 106, and that it was in motion when the boy fell or jumped off. Ida Winterfield, the daughter of the last witness, testified that she was on the northern-side of the street, about opposite lOl, and that the speed of the car did not change between Pike street and No. 106 East Broadway, and that when the plaintiff fell it was in motion. Thomas D. Horrigan -was sworn in behalf of the defendant, and. testified that on the 15th of October, 1889, he was the senior assistant to the house surgeon of Grouvernenr Hospital, to which the plaintiff was taken. He testified: “ Q. What did he (plaintiff) say to you while at Grouverneur Hospital in regard to the circumstances of this accident, and how he came to get hurt? A. He told me that he jumped off the car and was run over. Q. Did he say whether or not the car was in motion at the time? A. Yes, sir; he told me it was going. Q. Did he say where he asked the driver to stop? A. Ho, sir; he told me that he did not ask him to stop. Q. Did he say why he didn’t ask the driver to stop? A. Yes, sir. Q. Why ? A. He told me he didn’t ask the driver to stop because he -jumped off there a good many times before, and hedidn’t see why he could not do it again.”

Frank H. Pellatier, called in behalf of the defendant, testified that on the 15th of October he was house surgeon at Grouverneur Hospital. He testified to a conversation between the plaintiff and the driver, occurring a day or two after the plaintiff was taken to-the hospital: “ Q. Did the driver say to Bernstein on that occasion, ‘If you had asked me to stop the car, you would have saved all this trouble?’ A. Yes, I believe that he did. Q. And did the plaintiff reply that he had jumped off that car a great many times-before, and that he never had been hurt, and thought he was perfectly safe to do it again? A. He did.”

Andrew J. Curran, a medical student, who was called by the defendant, testified that he was present at the conversation between the plaintiff and Dr. Horrigan : “ Q. You may say what the doctor said to the plaintiff, and what the plaintiff said to him, if you please. A. He asked the patient how he happened to meet with the accident. He said he "jumped off the front platform of the-car when opposite his home, and I believe Dr. Horrigan asked him why he did not wait until the car stopped, and he said lie-often jumped off the car before, and did not see why he could not do it now, or words to that effect.”

Charles Wilson, a witness called by the defendant, testified that he was employed in the hospital, and that about four days after' the plaintiff came into the hospital “ I asked him how he came by the accident, and he told me that he went out to smoke, and jumped off the car, as he had done on several occasions before. Q. Did he say anything about the car being in motion at the time? A. Yes, sir ; it was in motion at the time. Q. Did he say anything about requesting the driver to stop ? A. Ho. sir; all he-told me was he jumped off the car while it was in motion, and he-had been in the habit of riding down town several times on that, line. Q. Upon any other occasion did he repeat that statement of this circumstance to you ? A. Ho, sir; he said it was very silly for him to do such a thing, and he wished he had his leg back.”

The driver of the car testified to the interview with the plaintiff" in the hospital in which thh plaintiff told him that he jumped off" the car when in motion. ■

We think the plaintiff failed to sustain, by a preponderance of evidence, the issue which he tendered as a ground of recovery, that the verdict was against the weight of the evidence, and that-the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

O’Brien aind Parker, JJ., concur.