text:
    JOHN F. KILNER, Respondent, v. JEREMIAH O’BRIEN and ESTHER E. O’BRIEN, Impleaded, Etc., Appellants.
    . Usury — effect of payment of the original obligation by a new one.

    The defendants executed a bond and mortgage for $400 upon an usurious consideration to one Stanton, by whom it was assigned. It was subsequently purchased by one Mrs. Bland, who paid full value for it and had no notice of the usury. Thereafter the defendants executed a new mortgage for $600 to Mrs. Bland, the consideration for which was the amount due upon the $400 mortgage and money then advanced, sufficient to make $600 in all.
    In an action to foreclose the $600 mortgage, brought by an assignee of Mrs. Bland, .held,' that the mortgage was valid, and that it could not be impeached on account of the usury in the original mortgage.

      Appeal from a judgment of the Orleans County Court in favor .of the plaintiff, entered upon the report of the referee. The action was brought to foreclose two mortgages. The defense was usury.

      J. Van Voorhi% for the appellants.

      Childs <& Pitts, for the respondent.
   Smith, J.:

It may be assumed from the • uncontradicted testimony of the defendants, O’Brien and wife, that the $400 mortgage executed by them to Stanton was given for a usurious consideration. The mortgage ivas transferred by successive assignments from Stanton to Mrs. Bland, who paid full value for it, and took it without notice that it was usurious. Subsequently, as the referee found, the defendants paid and took up the Stanton mortgage by executing to Mrs. Bland a new mortgage for $600, the consideration of which was the amount then due upon the Stanton mortgage, and, in addition thereto, a sum of money advanced by Mrs. Bland to the O’Briens sufficient to make the sum of $600 in all. The latter mortgage was assigned by Mrs. Bland to the plaintiff, and is one of the mortgages in suit.

The referee held that Mrs. Bland having purchaséd the Stanton mortgage without notice of ■ the usury, and having paid full value for it, the new mortgage taken by her and for which she paid an additional consideration is not affected by the usurious character of the Stanton mortgage. That ruling presents the principal question in the case.

If a security is tainted with usury in its creation the same security is void, even in the hands of a bona fide holder. (Thompson v. Berry, 3 Johns. Ch., 395; S. C. affid., 17 John., 436.) Any new security given to the lender in exchange for such usurious security, or into which the latter enters as a consideration, is also infected with the usury and is void; Jack v. Nichols (1 Seld., 178); McCraney v. Alden (46 Barb., 272); S. C. sub.nom.; Cope v. Wheeler (41 N. Y., 303) ; even though the new security is given by a third person, a stranger, if it is without any new consideration; Tuthill v. Davis (20 Johns., 285); Vickery v. Dickson (35 Barb., 96), and the original taint attaches to every such successive security however remote. (Dunning v. Merrill, Clarke’s Ch. R., 259.)

But, if the usurious obligation be transferred to an innocent holder and he receive directly from the debtor a new one in its stead, such new obligation cannot be impeached for usury in the original. (Cuthbart v. Haley, 8 T. R., 390; Jackson v. Henry, 10 Johns., 185; Powell v. Waters, 8 Cow., 669, 691, 696; Kent v. Walton, 7 Wend., 256; Holmes v. Williams, 10 Paige; 326; Aldrich v. Reynolds, 1 Barb. Ch. R., 43; Smedberg v. Simpson, 2 Sandf. Sup. Ct. R., 85; Sherwood v. Archer, 10 Hun, 73.) The ruling of the referee is sustained by the principle last stated.

The exceptions taken to rulings of the referee upon questions of evidence are of no moment.

The judgment should be affirmed, with costs.

Present — -Talcott, P. J., Smith and Hardin, JJ.

Judgment and order affirmed with costs.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    ABRAM MYERS and HERMAN BROWN, Plaintiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.
    Indictment— transfer of ease from Oyer and Terminer to Court of Sessions — • jurisdiction of latter court.

    "Where an indictment has been found in a court of Oyer and Terminer, an order may be made in that court sending the case to the Court of Sessions for trial, without giving any notice to the accused.
    The Court of Sessions has, since the passag-e of chapter 212 of the Laws of 1865, jurisdiction to try and convict a person indicted for robbery in the first degree.
    Writ of error to the Court of General Sessions of the county of Monroe, to review a conviction for robbery in the first degree.

      Hovey & White, for the plaintiffs in error.

      P. B. Fenner, district attorney, for the defendant in error.
   Smith, J.:

The indictment was found in the Oyer and Terminer in Monroe, and by an order of that court ivas sent to the Court of Sessions for trial. At the trial, the counsel for the prisoners objected to their being tried in the Sessions, on the ground that the order sending the case to that court was irregular, it having been made without notice to the defendants. The objection was properly overruled. The order was not irregular, no notice to the accused being necessary. (The People ex rel. Hasbrouck v. The General Sessions of the City of New York, 3 Barb., 144.) Even if the order had been irregular, it could not have been questioned collaterally.

It ivas objected at the trial that the sessions had not jurisdiction of the offense charged in the indictment. That position also is untenable. Courts of General Sessions have jurisdiction to try all crimes and misdemeanors not punishable with death or imprisonment in State prison for life. (2 R. S., 208, § 5, sub. 2.) Formerly the offense of robbery in the first degree was punishable with imprisonment in a State prison for not less than ten years, and Avhich might be for life, as there was no maximum limitation, and then courts of General Sessions had not jurisdiction to try it. But by chapter 212 of the Laws of 1865, all criminal offenses theretofore punished by imprisonment in the State prison for a term not less than ten years (except murder in the second degree, -arson, and manslaughter), Avere made punishable by imprisonment in the State prison for not less than five nor more than tAventy years. It is argued by the prisoner’s counsel that merely changing the punishment does not confer jurisdiction, as no language is used in the act expressing that intent. The legislature acted in view of the general statute giving jurisdiction, and so far as the acts are in pari materia, they are to be read together.

The point is taken that the court erred in charging the jury in these words: “The amount of force used is not material, so that it is against the will of the person robbed.” The objection urged is, that the instruction left out of vieAV the element of putting the person robbed in bodily fear, Avhich is essential to the offense charged. The criticism is hardly warranted. The judge had stated that, as an element of the charge, in the next preceding sentence, so that the jury could not have been misled. No exception was taken to that part of the crime, and even if -an error had occurred to the prejudice of the accused, it would not be available on writ of error without an exception.

Several exceptions were taken to the verbiage of the charge, but they are without merit.

The conviction should be affirmed.

Present — Talcott, P. J., Smith and Hardin, JJ.

Conviction affirmed.


text:
    HELEN L. ALLIS, Respondent, v. MILTON STAFFORD, Appellant.

      Personal transactions with deceased peison — when evidence as to, admissible — Code of Civil Procedure, § 829.
    This action was commenced in a justice’s court upon a promissory note made by Wood, and signed by Stafford for his accomodation, to the order of one Bement who died before the commencement of the action. The plaintiff recovered a judgment against both defendants, from which Stafford alone appealed to the County Court. Upon the trial in the County Court,'Stafford offered to prove by Wood, transactions and communications had by him (Wood) with Bement at the time of the execution of the note, and subsequent thereto to establish his defenses, one of which was an extension of the time of payment without Stafford’s knowledge. The evidence was rejected as inadmissible under section 829 of the Code of Civil Procedure.

      Held, that its rejection was error; that the testimony of Wood was not offered “ in his own hehalf,” as he was not a party to the appeal, nor in his “ interest,” as he was in no way interested in the result thereof.
    Appeal from a judgment of the Ontario County Court in favor of the plaintiff, entered on a verdict directed by the court.

      J. Gillette, Jr., for the appellant.

      G. H. Paddock, for the respondent.
   Smith, J.:

The action is on a promissory note, made by George W. Wood and the appellant, Stafford, who signed it for the accommodation of Wood. The note was made payable to Dewey Bement or bearer. Bement died before the trial. The suit was commenced in a justice’s court, where the plaintiff recovered against both defendants. Stafford alone appealed. On the trial in the County Court Stafford offered to prove by Wood, transactions and communications had by him with Bement, at the time of the execution ■of the note and subsequently thereto, for the purpose of establishing the defenses set up in the answer, one of which was that Bement had extended the time of payment by valid agreement with Wood without the knowledge or consent of Stafford. The principal question in the case arises upon the ruling sustaining an objection to the offer and excluding the evidence. The question turns upon the construction to be given to section 829 of the Code of Civil Procedure. The language is: “A party * *■ * shall not be examined as a witness, in his aum behalf or interest, * * * against,” etc. This, it is contended, has changed the rule which existed under section 399 of the late Code. Under that section, a party was prohibited from testifying, in any event, in a case within the statute. Under section 829, he is only prohibited from testifying in his own behalf or interest; and it is argued that judgment having passed against Wood, from which he had not appealed, he was not interested in the event of the appeal; and so, although a party to the action, he was a competent witness, and Stafford was entitled to the benefit of his testimony.

It may be assumed that the testimony would have been inadmissible under the former Code. The fact that Wood was a party to the record would have closed his mouth, under section 399, as .to transactions between him and the deceased. (Genet v. Lawyer, 61 Barb., 211). But under section 829, a party to the action is not prohibited from testifying to transactions with the person •deceased, except in his own behalf or interest. As Wood was not. a party to the appeal, he was not a witness in' his “ own behalf.” Was his testimony offered in his “ own interest ?” What interest had he in the result of the appeal ? The amount of his liability ■over to Stafford as his surety, as well as to the creditor, was fixed by the recovery before the justice. On his paying that judgment he would have saved his surety from all loss, and himself from further liability. But the surety saw fit to appeal, although his principal was content to abide by the judgment. If the surety ultimately fail on his appeal, on what principle can he call bn his principal to indemnify him against the costs, or against any increased damages that may be recovered against him therein ? (Holmes v. Weed, 24 Barb., 546). The recovery in the justice’s court was prima facie evidence that he had no defense to the plaintiff’s claim, and he cannot charge the principal with the costs of the appeal, unless it was brought with the approval and coni sent of the principal, of which there is no evidence. The fact that Wood attended the trialas a witness raises no presumption that he consented to the appeal. On the whole, we think the testimony was erroneously excluded. Aside from this, we find no error in the several rulings excepted to on the trial; but, for the reasons above stated, we think the judgment should be reversed.

Present — Taloott P J. Smith and Hardin, JJ.

Judgment aim order of County Court reversed, and new trial ordered in that court, costs to abide event.


author: Mullin, P. J.:

text:
    GEORGE W. BRADNER, Appellant, v. JOHN W. HOWARD, Respondent.

      ^Action, in Justice’s Court — defendant claiming discontinuance thereof, because amount involved is too large — estopped from denying that fact in the Supreitte Court '1

    Where in an action commenced in a'justice’s court, m .which a eoúnter-elaii}! has been interposed, the defendant moves that the action be discontinued, on the ground that the amount in dispute exceeds that over which the justice has jurisdiction, and such action is accordingly dismissed, and a new one brought . in the Supreme Court, the defendant is estopped from claiming in the latter .action that the justice had jurisdiction in the former one and that he is therefore entitled to costs.

      Appeal from an order of the Special Term denying a motion by plaintiff to strike from the judgment in this action the costs allowed to the defendant.
    An action was commenced by the plaintiff against the defendr ant in a justice’s court, which was discontinued on motion of defendant’s counsel, because the amount in dispute exceeded $400,
    Subsequent this action was commenced upon the same claim in this court, and it having been referred, a judgment was entered therein in favor of the plaintiff for $21.31. The clerk taxed costs in this action in favor of the defendant.

      George W. Bradner, appellant in person.

      Cornelius E. Stephens, for the respondent.
   Mullin, P. J.:

Appeal from an order of Special Term denying a motion by plaintiff to strike from the judgment in the action the costs allowed to the defendant.

The plaintiff commenced an action in a justice’s court, and by his complaint claimed to recover $200 for services and for money paid out at defendant’s request.

The defendant, in his answer, sets up a counter-claim for some $450, but claims judgment for about $230.

On the day of trial the parties appeared before the justice, and he has entered in his docket that defendant moved that the action be discontinued, on the ground that the accounts embraced over $400, and that the justice had no jurisdiction. Motion allowed and suit discontinued. The entry in the docket proceeds: “ It appeared satisfactory to me from defendant’s statement, that the answer embraced about $480.; and it having appeared to me from the proof offered that the sum totals of the amounts of both parties exceeded $400, I dismiss plaintiff’s complaint, with costs. Constable’s fees, 40 cents; justice’s fees, $1.00.”

Several affidavits are made by parties and others as to what proceedings were had at this trial, but none of them, except the ^tice^#nd« that any proof was made of the demands of the parties to theawtion; and the allegation in the entry in the docket that proof was given before the justice, showing that the accounts in controversy exceeded $400, is probably a mistake.

The Code (§ 54, subdivision 5), provides that no justice of the peace shall have cognizance of a civil action, nor of matter of account, when the sum total of the account of both parties, proved to the satisfaction of the justice, shall exceed $400. The amount may be proved by the admission of the parties or by oral or documentary evidence, and unless proved by some or all of these kinds of proof, the justice has jurisdiction, and must proceed with the trial of the issues.

It is insisted by the appellant that the statement in the docket is conclusive evidence that the requisite proof was given to authorize the dismissal of the cause; or if not, that then the defendant is estopped from claiming costs, because proof was not given before the justice that the claims in controversy exceeded $400, the case having been dismissed on defendant’s motion, on the ground that the amount in controversy did exceed that sum.

Without expressing any opinion as to whether or not the docket is conclusive evidence that the amount in dispute exceeded the justice’s jurisdiction, we are of the opinion that the defendant, having procured the dismissal of the complaint on. the ground that the claims exceeded the amount for which the justice had jurisdiction, he is estopped from now claiming that the justice had jurisdiction, and that he is therefore entitled to costs.

This precise point was decided in Glackin v. Zeller, 52 Barb., 147; and by this court in Bailey v. Stone, 41 How., 349.

Order reversed, with ten dollars costs and disbursements, and defendant’s judgment for costs vacated, with leave to plaintiff to. enter judgment for the debts and costs.

Talcott and Smith, JJ., concurred.

Ordered accordingly.


text:
    THE TOWN OF WAYNE, Respondent, v. WILLIAM M. SHERWOOD, Administrator, etc., of HENRY SHERWOOD, Deceased, Appellant.

      Commissioners to issue town bonds — powei' of, to impose conditions — chap. 507 of 1870, and chap. 925 of 1871.
    In 1872 the county judge of Steuben county, in pursuance of a petition duly presented to him, appointed commissioners to issue the bonds of the town of Wayne and subscribe for the stock of the Sodus Bay and Corning R. R. Co., to the amount of §30,000. To induce the commissioners to issue the bonds, defendant’s intestate, who was the president of the road, entered into an agreement with the commissioners, by which it was agreed that the road should be constructed and finished through the town, and, in case it was not, that the bonds should be delivered up, and the town should not suffer any loss, or be compelled to pay any sum by reason of them. The road not having been so constructed, and the bonds having passed into the hands of bona fide holders, this action was brought to recover damages for a breach of the agreement. Held, that as the bonds were delivered, the agreement was not one restraining the issue of the bonds until certain things had been done by the company, such as was authorized by chapter 507 of 1870, as amended by chapter 925 of 1871; that there was no authority in the commissioners to require the road, or any person acting in its behalf, to enter into the agreement which was made, and that it was, therefore, void and incapable of enforcement.
    Appeal from an order overruling a demurrer to the complaint.

      B. D. Mills and George B. Bradley, for the appellant.
    The commissioners had no right or authority to require or take; any consideration, by way of contract or otherwise, as an inducement to the performance of their duty. And any contract or condition not authorized by the statute was and is utterly void. (Webb v. Albertson, 4 Barb., 51; Palmer v. Fort Plain, etc., Plank P. Co., 1 Kernan, 376, 386; McGuire v. Smock, 42 Ind., 1; Fawl&r v. Seidly, 72 Penn. St., 456; 12 Cush., 594; 18 Pick., 472; Macedón $ B. Plank P. Co. v. Snediker, 18 Barb., 317, 319.) The town has no inherent power to become a stockholder-of a railroad company. And when vested with power in that respect it takes none other than such as is specifically given by the statute conferring the power, and can make only such contracts in relation to the stock or bonds as the statute prescribes-
      (Town of Verona v. Peckham, 66 Barb., 103; Lorillard v. Tovm of Monroe, 1 Kernan, 394; Halstead v. The May or, etc., 3 Comst., 433; Hodges v. City of Buffalo, 2 Denio, 110; Dillon on Municipal Corporations, §§ 381, 382, 749; The Mayor v. Bay, 19 Wallace. 469, 475.) Treating the commissioners as officers of the town, or quasi such, the agreement of Henry Sherwood was taken by them in violation of their official duty, and of the statute, and is void. (2 R. S., 286, § 59; Webb v. Albertson, 4 Barb., 51; Palmer v. Fort Plain, etc., Plank Boad Oo., 1 Kernan, 376; Dillon on Municipal Corporations, § 382; 19 Wallace, 468.) The alleged agreement of defendant’s intestate was without consideration to support it. There was no consideration.of injury to the legal rights of the commissioners or of the town of Wayne. (Converse v. Kellogg, 7 Barb., 590, 598; Pfeiffer v. Adler, 37 N. Y., 164.) And the complaint does not show that the contracts of the commissioners and Sherwood were mutual or concurrent. ( U. <& S. B. B. Go. v. Brinckerhoff, 21 Wend., 139; Macedón & B. P. B. Go. v. Snediker, 18 Barb., 317, 319.)

      William Bmnsey, for the respondent.
    The defendant is estopped from saying that this contract is one which the town had not power to make. The contract, so far as the town is concerned, is an executed one. The town could -not be compelled to deliver its bonds and take stock in the railroad company. To do this was a voluntary act on the part of the town, and it had a right to make any reasonable bargain for its safety. The giving of this bond, on the part of Mr. Sherwood,was a portion of the consideration on which the town acted in issuing its bonds and taking the stock of the railroad company. This action of the town was, doubtless, beneficial to Mr. Sherwood, and he was willing to assume the liability set out in the complaint. Upon the faith of that liability, the town consented that its bonds should go into the market. It has become responsible for their payment. (Bigelow on Estoppel, 424: Herman on Estoppel, 532, et seq.; Whitney Arms Go. v. Barlow, 63 N. Y., 62, 70, 71; Bushnellv. Ghautauqua Go. Wat. B’k, 10 Hun, 378; Williams v. F. T. A. AWn., 26 Ind., 310; 2 Kent’s Com., 291, note 3 [11th cd.], mai-g.; Oil Greek & All. B. B. ■Go. v. Penn.

      Transp. Co., 15 Alb. Law Jour. 373; Green’s Brice’s, ultra vires, 375, n.) The contract was not void as taken colore oficie. The prohibition of the statute is confined to public officers acting as such, and it avoids a bond which is taken by such an officer as an indemnity for a breach of his duty, or which is unlawful. (Burrell v. Acker, 23 Wend., 606, 608; Winter v. Kinney, 1 N. Y., 365, 368; Decker v. Judson, 16 N. Y., 439, 442; State v. City of Buffalo, 2 Hill, 434, 437.)
   Mullin, P. J.:

In February, 1872, the Sodus Bay & Coming Bailroad Company was engaged in building a railroad between Sodus Bay and Corning. The route as located ran through the town of Wayne, in Steuben county. The taxpayers of said town had signed a petition in and by which they consented that the bonds of the town, to the amount of $30,000, should be issued, on which to raise money to aid in the construction of the road. The county judge appointed commissioners to prepare and issue the bonds of said town, and subscribe for the stock of the road to the amount of $30,000.

As an inducement to the commissioners to issue the bonds and subscribe for the stock of the company, and in consideration of such issue and subscription, the intestate, who was the president of said railroad company, made, executed and delivered to the commissioners an agreement under his hand and seal, whereby he undertook and agreed that the railroad should be constructed and finished through said town of Wayne ; and, in case it should not be completed through said town, the bonds should be delivered up to the town, and it should not suffer any loss or be compelled to pay any sum by reason of the issuing of the bonds. This action is brought to recover damages for breach of said agreement.

The complaint sets out the foregoing facts, and alleges that the commissioners executed and delivered the bonds and subscribed for the stock of said company, and that the bonds were sold and delivered by the company to bona fide holders, and that, as against such holders, the town has no defense; that the the road has not been completed through the town of Wayne, and the company has ceased to build it, and its interest in the road has been sold. It also avers that the town has paid the interest semi-annually on said bonds for a number of years to the holders thereof, and the plaintiff prays judgment for the interest thus paid in addition to the amount of the bonds.

The defendant, administrator of Henry Sherwood, who signed and delivered said contract, demurs to the complaint on three grounds:

First. Because the complaint does not state facts sufficient to> constitute a cause of action.

Second. That plaintiff has no legal capacity to sue; and

Third. That plaintiff, being a municipal corporation, has no lawful right or legal capacity to have or maintain this action in respect to the matters set forth in the complaint.

The demurrer was heard at a Special Term held at Rochester, in December last, and it was overruled and leave given to defendant to answer on payment of costs. From that order the defendant appeals.

Prior to the passage of chapter 507 of the Laws of 1870, the town commissioners appointed by the county judge, pursuant to the prayer of the taxpayers, had no power to annex any conditions to the delivery of the bonds or to take any measures to protect the taxpayers against the improper use of the bonds or of' the moneys realized therefrom. The taxpayers were left to the tender mercies of the railroad directors, and in many cases they were made to feel how utterly merciless they were. The chapter of the Laws of 1870 cited (supra), was intended to remedy, in some degree, this fatal omission in the prior enactments, by providing-that the commissioners and the railroad company might enter into an agreement limiting and defining the times when, and the proportions in which, said bonds or their proceeds shall be delivered, and the place or «places where and the purposes for which such bonds or their proceeds shall be applied or used, and the courts were forbidden to compel the delivery of the bonds or their proceeds to such corporation until such agreement should be executed if required by the commissioners.

This act was amended by section 5 of chapter 925 of the Laws-of 1871, by adding to the first section of the said act a provision authorizing the Supreme Court at General Term to provide, after notice to the commissioners and the railroad company, upon what terms the bonds or their proceeds should be delivered' if the parties could not agree, or the commissioners refused to make an agreement for that purpose, and it was authorized also to compel the delivery of the bonds upon the terms prescribed by it, and it was also authorized to restrain by injunction the issue of said bonds or any portion thei-eof for good cause shown.

These acts were in force when the contract between Sherwood and the commissioners of Wayne was made, and had the commissioners entered into the agreement contemplated by these acts, $40,000 of the money of their fellow-townsmen might have been saved to them. Under these statutes the commissioners might have provided that the bonds should not be issued until the road was completed through their town, or no faster than it was completed therein, and providing for a delivery if the necessities of the company required it on the completion of each mile of the road within the town. But instead of entering into a valid contract in a lawful manner, they entered into one manifestly without any authority so to do, and with a person whose agreement was. without, any consideration to support it.

It is unnecessary to say that there is no authority, in either of the acts referred to, to the commissioners to enter into said contract, and it is equally manifest that the making of such contract was not necessary to the execution of the powers conferred on the commissioners to issue the bonds and subscribe for the stock, and unless the power was expressly conferred or necessarily to be implied in order to enable the commissioners to perform the duties imposed upon them, the power does not exist.

This is the rule applied to corporations (Dillon on Corporations, § 55 and note), and it is equally applicable to persons appointed to perform particular duties. In the absence of any agreement between the commissioners and the railroad company regulating the time and manner of issuing the bonds or delivering over their proceeds, the commissioners could not refuse to issue the bonds on demand made by the company. The duties óf the commissioners were purely ministerial, except in making the contract authorized by the statute, and they could have been compelled to execute and deliver the bonds or pay over their proceeds. If they could not refuse to execute and deliver the bonds, then they had neither power nor authority to require Sherwood to execute the contract set out in the complaint. ( Webb v. Albertson, 4 Barb., 51.; Palmer v. Fort Plain Plank Road Co., 1 Kern., 376)

The railroad directors were entitled to the bonds without executing and delivering any obligation whatever. And because Sherwood may have voluntarily executed and delivered the contract, it is none the less invalid ou that account. The commissioners had no right to demand it, and when given it was without consideration to support it. (Town of Verona v. Peckham, 66 Barb., 103; Lorillard v. Town of Monroe, 1 Kern., 394.)

The orders of the Special Term must be reversed and judgment ordered for defendant on the demurrer.

Present — Mullet, P. J., Smith and Talcott, JJ.

Order of Special Term reversed, and judgment ordered for defendant on demurrer.


text:
    CHARLES C. CORNES, Plaintiff, v. ANDREW J. WILKIN, Executor, Etc., of CHARLES M. BROCKWAY, Deceased, Defendant.

      Cosureties- — contribution between — Claim rejected by executor — short statute of limitations as to —3 M. 8., (3th ed.) 97, •§ 49.
    The plaintiff and defendant’s testator were joint sureties to an undertaking, given by one Eaton on an appeal by him from a judgment recovered against him by one Burgess in 1872. Defendant’s testator died in January, 1873. In July, 1873, the judgment was affirmed, and in November of that year plaintiff was compelled to pay the amount thereof to Burgess.

      Held, that plaintiff was entitled to compel the estate of his deceased co-surety to contribute one-half of the amount so paid by him.
    On September 13th, defendant, as executor, published a notice requiring all persons having claims against his testator, to present them for payment. On April • 15, 1874, plaintiff presented his claim for one-half the amount he had been compelled to pay, -which was rejected. This action was commenced in November, 1870.

      Held, that as the claim had not been referred, or a suit commenced within six months from its rejection, it was barred by the short statute of limitations; that the same rule applies where the claim has accrued after cbath of the testator as where it existed at that time ; that the omission of the middle letter of the testator’s name in the order requiring the presentation of claims against the estate, was immater’
    Motion for judgment-, on a verdict directed for the plaintiff, subject to the opinion of the court at General Term.

      J. D. Decker, for the plaintiff.
    A surety, who has paid the debt of the principal, has a claim for contribution against his co-surety who is jointly liable with him upon a joint bond or obligation, and the right of action arises when the surety claiming such contribution pays the debt. The death of the co-surety before the debt is paid by the surety claiming contribution, does not discharge the obligation or liability to contribute; but this obligation or liability survives against the estate of che co-surety and devolves upon his legal representatives. (Bradley v. Burwell, 3 Denio, 65; Barry v. Hansom, 12 N. Y., 466; Deering v. The Bari of Winchelsea, 2 Bos. & Pull., 271; Norton v. Ooons, 3 Denio, 132; Same Case, 2 Selclen, 39; Armitage V. Pidver, 37 N. Y., 496; Smith JEx’rs v. Anderson, 18 Md. E., 527; Marshall & Jenkins v. G. De Groot, 1 Caine’s Cases, 122; Bachelor v. Fisk and another, Ex’rs, 17 Mass. E., 464; Asynmvall v. Sacchi, 57 N. Y., 335; Story’s Eq. Jur: [11th ed.], vol. 1, p. 525; Story on Con. [5th ed.], vol. 2, p. 380; Wait’s Actions and Defenses at Law and Equity, vol. 1, p. 182.)

      Daniel Holmes and J. Q. Gochrane, for the defendant.
    Brock-way and Cornes being bound jointly on the appeal bond, the 1 death of Brockway 'terminated the liability as against him, and the survivor (Comas), thereupon became solely liable. Brock-way’s liability being thus terminated, it cannot he indirectly revived by a suit against his representatives for contribution. (Hisley v. Brown, 67 N. Y., 160; Houck v. Graighead, id., 432; 1 Parsons'on Contracts [5th ed.], 30, and note [e], p. 33; Getty
      v. Binesse, 49 N. Y., 385; 1 Story on Contracts, [5tli ed.], § 70; Hulbert v. Ferguson, 40 Iiow., 474; 1 Story’s Eq. Juris., §§ 162, 163, and 164; Fork v. Peck, 14 Barb., 644; Morehouse v. Ballou, 16 Barb., 289; Tobias v. Rogers, 13 N. Y., 59; Puckafer v. White, 1 Jones & S., 267; Pickersgill v. Laheus, 15 Wallace, 140; The United States v. Price, 9 How. [U. S.J, 83; Conover v. Ilill, 76 111., 342; Wood v. Fisk, 63 N. Y., 245; 7 Alb. Law Jour., 241.) The plaintiff’s claim was barred by the short statute of limitations. (3 R. S. [6th ed.], § 49 [sec. 38], p. 97.) It is objected that the order is for the presentation of claims against the estate of Charles Brockway omitting the middle letter of his name. That omission was immaterial; the law recognizes but one Christian name. (Franklin v. Talmadge, 5 Johns., 84; Roosevelt v. Gardinier, 2 Cow., 463; Milk v. Christie, 1 Hill, 102; Aylesworth v. Brown, 10 Barb., 167; Van Voorhees v. Budd, 39 Barb., 479; Claflin v. Griffin, 8 Bos., 689.) Besides, the plaintiff, by presenting his claim under the notice, waives all technical objections to the form of the order.
   Mullin, P. J.:

The verdict in this case was taken at the Circuit, subject to the opinion of the court at General Term, all exceptions to the admission or rejection of evidence being waived. The plaintiff and defendant’s testator were joint sureties on an undertaking on appeal to the General Term from a judgment recovered by Anrt Burgess against Joseph Eaton, in 1872.

The defendant’s testator died in January, 1873, and the judgment was affirmed by the General Term in July of that year. In September, 1873, Ann Burgess recovered judgment- against 'he plaintiff on the undertaking, and on the 11th November of the same year plaintiff paid the judgment. The defendant caused to be published, by the direction of the surrogate of Monroe county, (in which the testator resided at the time of his death,) a notice to persons having claims against the estate of testator to present them, with the vouchers relating thereto, to the defendant on or before a day mentioned. The first publication of the notice was on the 13th September, 1873. On the 15th April, 1874, plaintiff presented a claim to the defendant, as executor, against the estate of the testator, for one-half the amount paid on the judgment recovered on the undertaking on appeal, and it was at once rejected. This action was commenced the latter part of November, 1876.

The defendant, in his answer, admits the death of the testator, that he left a last will appointing defendant executor, and that letters testamentary were issued to him, and he denies all the other allégations in the complaint. The defendant, in a second defense, sets up the omission of the plaintiff to bring his action to enforce his demand within six months from the first publication of notice to the creditors of the testator to present their claims to him.

On the trial at the Monroe Circuit, after the plaintiff rested, the defendant moved for a nonsuit, on the ground that there is no evidence of an agreement between the deceased and plaintiff by which he undertook to indemnify him for signing the bond; and, in the absense of such an agreement, the obligation was extinguished by his death. The motion was deified, and defendant’s counsel excepted.

On motion of plaintiff’s counsel, the court directed a verdict in favor of the plaintiff for $631.88, subject to the opinion of the court at General Term.

The defendant’s counsel relies upon two grounds in opposition to the motion by plaintiff for a judgment in his favor. These are: 1st. That the testator, being a joint surety with the plaintiff in the undertaking on the appeal, and having died, the plaintiff is not entitled to contribution from the estate of the testator toward the amount paid by him on the judgment recovered on the undertaking. 2d. That plaintiff’s action is barred, because not brought within six months from the first publication of notice to the testator’s creditors to present their claims against his estate.

The first proposition seems to be disposed of, so far as this court is concerned, by the case of Norton v. Coons (3 Den., 130). It was distinctly held in that case that one of several co-sureties who pays the debt may call upon the other sureties for contribution, whether they were bound jointly or severally, and whether by the same or different instruments. I do not find that this case has bee" reversed or questioned. It is, therefore, our duty to follow it.' The death of the testator did not disehai’ge his estate from liability to contribute to the payment of the amount paid by plaintiff upon the joint obligation. (Bradley v. Burwell, 3 Den., 61).

Section 49, page 97, of 3 E.' S. (6th ed.), provides, that if a claim against the estates of deceased persons shall be presented to the executor or administrator, and shall be rejected by him, and shall not have been referred, and a suit therefor commenced within .six months after such rejection, it shall be forever barred.

The plaintiff’s claim was presented to the executor, and rejected by him, and no reference of the same was made, nor suit brought mtil the expiration of more than two years from the rejection by the executor. The action is barred, unless it is saved by one or more of the considerations suggested by the plaintiff’s counsel.

He insists that the statute does not apply to the claim because it was not a debt due by the testator at the time of his death, and it is such claims only to which the statute applies.

The statute applies to all claims against the estates of deceased persons. That the plaintiff had or has a claim against the estate of defendant’s testator cannot be questioned, and it is none the less a claim against his estate because an action to recover it must be brought against the executor, and the'judgment therein must bo de bonis jprqpt'iis, and hot de bonis testatoris. In either case, the estate must pay the debt. The short statute of limitations does not begin to run until a right of action accrues in favor of the creditor. The plaintiff’s right of action accrued when he paid the money on the judgment, and as that was not until after the testator’s death, it follows that the deceased was not indebted to the plaintiff at his death, and it became the debt of the executor. (Ferrin v. Myrick, 41 N. Y., 315.)

We are not referred to any case that sustains the proposition of the plaintiff’s counsel, unless the case of Bradley v. Burwell may be so understood. But I do not believe the court intended so to decide. The question in that case arose under the section of the statute relating to costs, and it was not necessary to a decision of the case to consider the section relating to the limitations of actions.

■ - The object of requiring claims against the estates of deceased persons to be presented to the personal representative is to inform him as to the extent of the liability of the estate ,and the nature of the demands against it. It is indispensable that notice should be given of all claims, as in no other way can the executor or administrator protect the estate from the payment of unfounded claims, and himself from liability to the creditors or next of kin.

The plaintiff’s counsel. insists that the six months’ limitation should not be held to apply to this case, because the order requiring the presentation of claims against the estate omitted the initial letter “ M ” from the name of the testator. It is settled that the omission of a second given name is immaterial, and the law does not recognize but one given name, and the plaintiff by presenting his claim in pursuance of the notice waived the objections, if he had any to the notice.

The plaintiff’s counsel also objects that the claim presented to the executor was not rejected so as to put in operation the statute of limitations. The rejection was prompt and positive. I am ■unable to comprehend how it could have been made in more clear or decided terms.

The counsel insists that the delay in commencing the action was excused by reason of his client’s efforts to get his pay out of the principal debtor. The statute does not allow of any exception to its operation, and the court has no power to make any.

After the plaintiff’s claim was rejected, the executor by letter proposed to plaintiff’s counsel to prepare a case under § 372 of the Code to submit to the court upon which to determine whether the estate was liable to contribution. Nothing was done toward carrying out the suggestion thus made, and the plaintiff’s counsel now insists that by this negotiation the executor waived the statute, and the right to bring the action has not been barred. It is true that the statute in question is a highly penal one, and is to be strictly construed. After the rejection of the claim, the liability of the estate must be determined in some way, and the one proposed was a very proper one; no suggestion is made by the executor that his views as to the validity of the claim has been changed, or that he doubts the correctness or propriety of its rejection. It was quite natural that he should regret the necessity of rejecting the claim of a neighbor for so considerable a sum of money, and thereby put him to the expense and trouble of a lawsuit; but he did not suggest any other mode of adjusting the difference between them.

I am of the opinion that the action is barred by the statute, and that. a judgment must be entered dismissing plaintiff’s complaint.

Talcott and Smith, JJ., concurred in result.

Judgment ordered for defendant.


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    HENRY H. GREEN, as Executor, Etc., Respondent, v. CHARLES E. WARREN, Impleaded, Etc., Appellant.

      Demurrer — when it must be served by -mail — when served on last day under suspicious eiremnstanees, what must be shown.

    In this action, brought to recover the amount of a promissory note, the summons and complaint were served on June 22d. On July 12th, defendant’s attorney mailed, at Utica, a frivolous demurrer to the complaint directed to plaintiff’s attorney at Herkimer. On the morning of the 13th, plaintiffs called at the post-office at Herkimer, but did not find the demurrer, and entered judgment, having never received any notice of appearance from defendant. Thereafter and on the same day other judgments were entered against defendant, as it was alleged, in favor of his friends, and he. made a general assignment with preferences, plaintiffs’ debt not being preferred. Some $S00 was realized upon an execution issued under the judgments, but not sufficient to pay plaintiffs’ judgment, unless given priority over the other judgments of the 13th. On July 19th, the demurrer was overruled as frivolous.
    Upon a motion to set aside the plaintiffs’ judgment, held, that, as the circumstances tended to show that the defendants’ attorney intended to prevent plaintiff from entering judgment until other judgments had obtained a preference, it was incumbent upon the said attorney to show- precisely when the demurrer was mailed, and what time the first mail for Herkimer left on the next morning ; that if it was mailed so late at night as to miss the first mail of the next morning the judgment was regular. That as the defendant failed to show these facts, the motion should be denied.
    Wte11 a party is entitled to have irregular proceedings set aside considered.
    Appeal from an order denying a. motion to vacate a judgment entered in this action.

      The summons and complaint herein, were served on the defendant Warren, June 22, 1877. The time to answer or demur to the complaint extended to and included July 12th, 1877.
    On the 12th of July, 1877, the defendant Warren, by his attorney, served upon plaintiff’s attorney a notice of retainer and a demurrer to the complaint of plaintiff.
    On the 13th of July, 1877, plaintiff’s attorney entered a judgment as by default in Herkimer county, in favor of the plaintiff and against both defendants for $197.97 damages and costs, and issued an execution thereon. Thereafter and on the same day, other judgments were entered against defendants, as was alleged,, in favor of their friends, and on the 16th day of July the defendant, Charles E. Warren, made a general assignment of his property, with preferences.
    On the 14th day of July, 1877, plaintiff’s attorney served upon the attorney for the defendant Warren, a notice of application to overrule the demurrer served, as frivolous, and for judgment, before Justice Hardin at Chambers, and on that application, and on the 19th day of July, 1877, a decision was' made overruling the demurrer as frivolous.
    On the 3d day of August, 1877, the attorney for the defendant Warren made a motion at Special Term to vacate and set aside the judgment entered by plaintiff, as by default, on the 13th day ■of July, 1877, for $197.97, and the execution issued thereon, for irregularity, on the grounds, among others:
    1. That the judgment was entered after defendant Warren had appeared and demurred to the complaint, and before the issue thus joined had been disposed of.
    2. That plaintiff had applied for judgment on demurrer as frivolous, under section 247 of the Code, and had obtained such a judgment,, thereby having two judgments in the case — the second one being regular and the first one irregular.
    The motion to vacate the judgment was denied, and an order to that effect granted. From that order the defendant Warren' appeals to this court and asks to have said order reversed, and. the judgment entered July 13th, 1877,. by the plaintiff, for $197.97, against defendant Warren, and the execution issued' thereon vacated and-set-aside, with costs.

      'Parker W. Tefft, for the appellant, Warren.

      Amos II. Prescott, for the respondent.
   Mullin, P. J.:

This action was brought to collect a note of $200, made by defendants and delivered to plaintiff’s testator.

The summons and complaint were served on defendant Warren on the 22d of June, 1877. On the 12th of July the defendants’ attorney mailed, at Utica, a demurrey to the com- . plaint on the ground that it did not set forth a cause of action, directed to plaintiff’s attorney at Herkimer, paying the postage thereon.

On the morning of the thirteenth, plaintiff’s attorney called at the post-office for his letters, but found none from defendants’ attorney, nor had he then, or at the time of entering judgment, any notice of appearance of defendants’ attorney, nor of any demurrer being put in, nor of an intention of defendants’ attorney to appear in the cause. Judgment was entered upon default at noon on the 13th July. Execution was thereupon issued and levy made by the sheriff upon Warren’s property. On the afternoon of the same day judgments were entered, as plaintiff alleges, to a large amount against the defendants in favor of their friends, and subsequently other judgments were entered against them, and an assignment with preferences was made by Warren of his property for the benefit of his creditors. The plaintiff’s debt was not preferred. Defendants’ estate was incumbered by a mortgage for its full value, and then, or very soon afterwards, an action to fore■elose it was commenced.

Warren’s personal property was sold on the jl. fa., and there was realized from it between $800 and $900 — not enough to satisfy the plaintiff’s execution, if those in the sheriff’s hands in favor of other persons are allowed preference over that of plaintiff.

That the defendant’s attorney intended to prevent the plaintiff from getting a judgment until after the judgments of' other parties had been entered, is too obvious to admit of dispute. To prevent it a demurrer utterly frivolous was put in, and its service probably delayed, until so late an hour on the twelfth that it would not reach plaintiff’s attorney until the next day, nor until other judgments had obtained a preference.

With so many circumstances of suspicion surrounding the conduct of the defendants’ attorney, it was incumbent upon him to show precisely when the demurrer was mailed, and. when the first mail in the morning left Utica for Herkimer, so that we could see that it was not intended that it should not leave Utica until toward noon of the thirteenth. This he does not do. He'leaves all the suspicious circumstances unexplained, and insists that he had the right to serve his demurrer at any time on the twelfth, and that having served on that day, he deprived the plaintiff of the right to enter judgment, until after those the defendants desired to befriend had obtained their liens.

It is true, he was entitled to twenty days m which to serve his demurrer, and it wits irregular for plaintiff to enter his judgment after the mailing of the demurrer at Utica on the twelfth. But the defendant was bound to mail his demurrer at such time on the twelfth as that it would reach the plaintiff’s attorney by a mail leaving Utica on that day, or by the first mail of the next day. It does not appear that the paper was mailed so as to reach him until about midday of the thirteenth. It had to be carried but ten miles, so that it would reach plaintiff in half an hour after leaving Utica, and it was not received until toward noon.

If the conduct of the defendants’ attorney was entirely free from suspicion, it would be the duty of plaintiff’s attorney to show that defendant had not mailed his demurrer in time ; but, under the circumstances, I think the defendants’ attorney was bound to show a strict compliance with the requirement of the statute and rules, as to the service of the demurrer. This could only be done, as I have already suggested, by showing the precise hour at which it was mailed, and the hour of the next mail, by which it would be carried, would arrive at Herkimer. If it was mailed at a late hour in the night of the twelfth, it may have been too late for the first mail in the morning, in which it ought, in fairness, to have gone.

If, however, it should be conceded that the judgment of plaintiff was irregularly entered, it does not follow that it should be set aside. To entitle a party to complain of an irregularity and to ask to have the irregular proceeding set aside, it should appear that he is prejudiced by it in some way to his injury. Nothing of the kind is, or can be pretended in this case. The defendant not only-does not swear to merits, but he shows that he has none.

It is wholly immaterial to him whether the judgment was entered on the 13th or 19th of July, and no mere trivial irregularity should be permitted to deprive a party of a lien fairly, but irregularly it may be, acquired. (Bank of Buffalo v. Lowry et al., 22 Wend., 630.)

The order must be affirmed, with $10 costs and disbursements.

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

Order affirmed, With $10 costs and disbursements.


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    CHANDLER J. WELLS and CLARA A. MILLS, Appellants v. THE CITY OF BUFFALO, Respondent.

      New York Constitution, § 17, art. 3 — to what cases applicable.

    Section 17 of article 3 of the Constitution, providing that no act shall he passed, providing that any existing law or any. part thereof shall be made or deemed a part of such act, or that any existing law shall be applicable thereto, except by inserting it in such act, does not require that an act amending a prior one, should contain the whole of such prior act.
    Such section should only be applied, when, in a subsequent statute a former act is referred to ; not for the purpose of amending it but to give eifeet to the provisions of the new act; that is, the new act must by its express terms provide that an existing law shall be made or deemed a part of it.
    Appeal from a judgment, in favor of the defendant, entered upon the trial of this action before one of the justices of the Superior. Court of Buffalo.
    The action was based upon the alleged violation of' article 3, section 17, of the Constitution of the State of New York, by the provisions of chapter 369, of the laws of 1875. The act in question provided, among other things, that when any local assessment in the city of BufFalo should be invalid for irregularity, a reassessment should be made “ in the manner provided for making local assessments by the revised charter of said city, as the said charter is contained in chapter five hundred and nineteen, of the laws of eighteen hundred and seventy, and the several amendments thereto, * * * and . all such proceedings shall be had for ordering, making, confirming, correcting or annulling such reassessments as are now provided by the said revised charter in cases, of original assessments for like improvements.”
    The appeal was removed into the Supreme 001114, in pursuance of section 273 of the Code of Civil Procedure, on account of the inability of a majority of the justices of the Superior Court to hear' the same.

      Asher JP. Nichols, for the appellants.
    jP. A. Matte son, for the respondent.
   Mullin, P. J.:

By the charter of the city of Buffalo the common council were authorized to grade and pave the streets of the city, and to assess the property benefited thereby to pay the expense.

The common council did, by ordinance, direct the improvement of Clinton street, in said city, and assessed the expense on the property on said street. Some of the owners commenced an action in the Supreme Court, to set aside said assessment, as not made in conformity to the charter, and it resulted in a judgment annulling the assessment.

In the meantime the legislature passed a law (chap. 369 of the Laws of 1875), empowering the common council to reassess the same, and it was reassessed, and this action is brought to set the= reassessment aside on the ground that the law of 1875 is void under section 17 of chapter 3 of the Constitution, which declares that no act shall be passed, which shall provide that any existing law, or any part thereof, shall be made or deemed a part thereof,, or which shall be applicable, except by inserting it in such act: The Supreme Court held the amended act valid, and dismissed the complaint. I am in favor of affirming the judgment.

The convention never could have intended that in an act amending a prior one, the whole of the latter should be copied into it. This provision in the Constitution will render it almost, if not altogether, an impossibility to frame a law, in which another is referred to, and escape the Constitution and prohibition, unless the former law is copied into it verbatim et literatim. If it is to receive such a construction, the Session Laws, already of alarming proportions, will become vastly larger, much more expensive, and, if possible, more difficult to interpret and understand.

The section referred to should only be applied when'in a subsequent statute another act is referred to, not to amend it, but to give effect to the provisions of the new. In other words, the new act must, by its express terms, provide that an existing law shall be made or deemed a part of it. This is not done when the now act merely amends the formei-.

The judgment should be affirmed, with costs.

Talcott and Smith, JJ., concurred.

Judgment affirmed with costs.


text:
    In the Matter of the Appointment of a Receiver, etc., of THE LATE DODGE & STEVENSON MANUFACTURING COMPANY, etc.

      Judge — relationship of, to parties — when Ids order will be set aside because of.

    After a corporation has been dissolved, any order relating thereto made by a judge who is related to a stockholder of the company within the ninth degree, - is not absolutely void, but is voidable; the relationship being conceded, the • court is bound, on such objection being taken by a stockholder, to set the " order aside.
    Iij is not necessary that the person tCwhom the judge is related should be tech"nically a party to the action. '

      Appeal from an order refusing to set aside the appointment of a receiver, and an order directing him to make an assessment upon the stockholders of a corporation.

      George F. Danforth, for the appellant.
    The judge was, by reason of affinity with the stockholders, disqualified from sitting as a judge in the case in which the order was made. (R. S., vol. 2, p. 275, § 2; Graham & Waterman on New Trials, vol. 2, p. 228; Paddock v. Wells, 2 Bar. Ch. Reports, p. 331; People v. Thompson, 41 N. Y., p. 5; The People v. Wheeler, 21 N. Y., 85; Place v. The Butternuts, etc., 28 Bar., 503, upon this point cited and approved in 48 Bar., 523; _ZV Y. <& JY. II: P. II. Co. v. Schuyler and others, 28 How. Pr. Reports, 187; Dimes, appellant, v. The Grand Junction Canal Co., respondents, 3d House of Lords Cases, 759; Schoonmaker v. Cleanoater, 41 Barb., 200, affirmed in 1st vol. Keyes, 310. under the title of Chambers ex’r, v. Clearwater.

      Parker & Countryman, for the stockholders.
    The orders were absolutely void, for the reason that the justice was related, by affinity within the ninth degree, to several of the stockholders. (2 Revised Statutes, 275 [marg.], § 2; Oakley v. Aspinwall, 3 N. Y., 547, 551; Edwards v. Russell, 21 Wend., 64; Schoonmaker v. Cleanoater, 41 Barb., 200, 203-206; Chambers v. Clearwater, 1 Abb. Ct. of App., Dec., 341, 345; Rivenburgh v. Henness, 4 Lans., 208; Converse v. McArthur, 17 Barb., 410; Baldioin v.' McArthur, 17 id., 414; Foot v. Morgan, 1 Hill, 654; Edwards v. Russell, 21 Wend., 63; Post v. Black, 5 Denio, 66; Jewetts. Albany City Bank, Clark’s Ch. R., 179.) This rule applies to all judicial officers in all judicial proceedings, in all courts, from the highest to the lowest. (Oakley v. Aspimvall, 3 N. Y., 547; Edwards v. Russell, 21 Wend., 63; Baldwin v. McArthur, 17 Barb., 415.) It is immaterial whether the legal proceeding results in an order or a judgment, if it involves a judicial act or decision. {Converse <& Baldwin v. McArthur, 17 Barb., 410, 415; Rivenr burgh v. Henness, 4 Lans., 208.)
   Mullin, P. J.:

The Dodge & Stevenson Manufacturing Company became insolvent, and it was dissolved, and its trustees assumed- the care and management of its property, collected part of its assets, and, under an order of the Special Term, made dividends of the avails amongst the creditors. After a time, the trustees, deeming it for the interest of all concerned, applied to the. court to be relieved from the further care of the property, and prayed the appointment of a receiver.

The trustees were discharged, and Martin S. Cuykondall was appointed receiver. Not long after his appointment, the receiver presented to the court a statement of the assets and liabilities of the company, showing that the debts largely exceeded the assets, and alleging that, in order to meet the liabilities, an assessment of seventy-five per cent upon the amount of stock held by the stockholders was necessary, in order to meet-the deficiency of the assets to pay the debts. An order was granted permitting the receiver to assess the stockholders for seventy-five per cent o! the stock held by them. The assessment was made, and actions brought to recover the amount thereof.

It was claimed by the stockholders that the order for the assessment was made without an opportunity being given to the stockholders to be heard; and that the assessment of seventy-five per cent was much larger than was necessary to pay the debts, after applying thereto the assets. It was also claimed that the receiver was influenced by improper motives, in obtaining the leave to assess and in enforcing the collection thereof.

A motion was made to set aside the assessment, and proceedings under it, upon the grounds aforesaid, and upon the further ground that the judge, who granted the several orders above mentioned was related to several of the stockholders of said company within the ninth degree, and that he was rendered incompetent to entertain the proceedings by 2 R. S., 275.

Pending this motion, the receiver resigned. The motion was denied, the resignation of the receiver was accepted, and a referee appointed to appoint another in his place, and to ascertain and report whether the assessment was for too large a percentage. From this order some of the stockholders appeal.

My conclusions are: First. That the relationship of the judge, who directed the assessment, to certain of the stockholders, did not render his action absolutely void; but it is voidable, and being-conceded, we are bound to sot aside his orders made after the dissolution of the corporation.

• Second. That after the dissolution, the stockholders were the parties directly interested in the property of the company, and they are parties to the proceedings, so as to entitle them to object to the competency of the judge.

The counsel for the respondent insists that the courts are bound to give to the section of the statute a strict construction, and to sustain the action of the court, unless the person to whom the judge is said to be related is technically a party to the action. I cannot agree with the counsel. The object of the statute is to protect suitors against the influence that relationship is apt to have upon human action. So far from giving the statute a strict or literal construction, it should, in my opinion, be liberally construed, so as to fully protect suitors as far as it can practically be done.

A judge may not, and in very many cases is not, made aware, by the announcement of the title of a case, that he, or his wife, is related to one or more of them; and it may be impossible, without seriously interfering rvith the business of his court, to ascertain whether he is disqualified to act by reason of relationship; and a party cognizant of the disqualification may omit to suggest it, until the result of the action is ascertained, and then he may raise the objection, if he is beaten; or he may continue to conceal it, if he has succeeded.

While the action of Justice Dwight has led to criticism of his legal powers to make the orders hereinbefore referred to, yet all parties agree in conceding the entire purity, as well of his motives as of his action. I am of the opinion the order of the Special Term should be reversed, and the motion made at Special Term granted, without costs to either party.

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

Ordered accordingly.


author: Hardin, J.:

text:
    HENRY M. WOODFORD, Appellant, v. ELIZABETH BUCKLIN, Impleaded, Etc., Respondent.

      Judgment — costs included in — when they may be stricken out upon motion — Distinction between actions in equity and at law.

    “Where an action in equity has “been referred, and the referee has made a report in which he has passed upon the question of costs, in accordance wit]» which report the costs have been taxed and a judgment entered, the Special Term has no power to strike such costs therefrom upon motion ; the remedy of the party aggrieved is by an appeal from the judgment.
    In actions at law the rule is different, and the court may in such actions, amend the judgment by increasing or decreasing the amount of costs included therein, or it may strike them out altogether.
    Appeal by plaintiff from an order of the Special Term, denying a motion to sot aside the taxation of costs in this action by the clerk of Herkimer county, and the entry of such costs in the judgment in favor of the defendant Elizabeth Bucklin against the plaintiff.
    . The action was in the nature of a creditor’s bill to set aside certain conveyances. All the defendants appeared by the same attorneys and set up in one answer their respective defenses. The issues were referred to A. C. Mdler, Esq., as sole referee, to hear and determine. His report found the conveyances to be fraudulent, and void as to the two male defendants, and that Elizabeth Bucklin “ had no notice of the fraudulent intent of her immediate grantor, or of the fraud which rendered void his title.” He also decided that “ The plaintiff may recover his costs and disbursements in this action as against the defendants, George R. Bucklin and George N. Bucklin, and the defendant, Elizabeth Bucklin, may recover her costs and disbursements in this action against the plaintiff.”
    The report was filed and a judgment entered in accordance therewith, and the clerk taxed and entered the costs and disbursements of Elizabeth Bucklin in the judgment in her favor.
    No appeal has been taken from the referee’s findings and decision, or the judgment entered théreon.

      The Special Term refused to oi’der the taxation set aside or to strike out the costs.

      A. Hazelline, Jr., for the appellant.

      Link & McEvoy, for the respondent.
   Hardin, J.:

Confessedly this was an equity action. It was referred to a referee to hear and determine, and his report passes upon the question of costs. Part of his decision awards costs to the defendant, Elizabeth Bucklin, and his report stands undisturbed. The costs-were in the discretion of the trial court. That discretion cannot be reviewed, except upon an appeal from the report. (Stevens v. Veriane, 2 Lans., 90.) That was an equity action and heard before a referee. Mullin, P. J., in delivering the opinion of the court, said: The referee was bound to determine who should pay the costs, and if he did not mean to give full costs, then it was his duty to fix the amount. He did what was his duty to do.” To alter the adjudication as to costs, upon motion after judgment, is to vary the judgment, and this can only be done by a court authorized to revise the judgment on appeal or to review the cause. A judge at Special Term has no such power. (1 Barb. Chy. P., 376; see Pratt v. Ramsdell, 16 How., 60.) In Staiger v. Schultz (3 Abb. [N. S.], 377), decided by the Court of Appeals in 1867, it was held that in causes of an equitable nature, it is discretionary with the court in which the action is brought to grant or refuse costs, and section 306 of the Code was held to give that power in equity actions. Judge Bockes says, in that case: “The right had been exercised by courts of equity from time immemorial, and was always deemed essential to the proper exercise of equity jurisdiction.” (Section 306 of the Code.) The decision of the referee as to costs stands as the decision of the court where he is to hear and determine. (Section 272, sub. 2.)

The learned counsel for the appellant cites Beattie v. Qua (15 Barb., 132), where it was held that this court could not review the taxation of costs upon an appeal from the judgment of the County Court, and that if the party had any grievances as to the items of costs, he should apply to the County Court upon motion. That was a law action, and has no application to the question before us.

Judge Mullin, in Stevens v. Veriane (supra), very properly says: “ In legal actions the court may upon motion amend the judgment record by increasing or lessening the amount of costs eqtered therein, or it may strike them out altogether, but it has never had such power over a judgment in an equity suit.” Much less has the clerk power to disregard the decision of the court or referee as to costs in cases where the court has a discretion as to costs, and it was held in Chapin v. Churchill (12 How., 867), that the clerk could not disregard the decision of the court as to costs, even in a law action where the direction was erroneous.

The clerk properly followed the decision of the referee when he taxed and inserted in the judgment the costs of the defendant, Elizabeth Bucklin, and the Special Term properly refused to strike them from the judgment upon the motion made by the plaintiff. (Code, 306, and cases cited, supra; see, also, Dana v. Howe 13 N. Y., 306; Lindslay v. Deafendorf, 43 How., 90.)

The order of the Special Term should be affirmed, with $ 10-costs and disbursements.

Talcott, P. J., and Smith, J., concurred.

Order affirmed, with $10 costs and disbursements.


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    MARY L. GAGE, Administratrix of AUGUSTUS M. GAGE, Deceased, Plaintiff, v. THE DELAWARE, LACKAWANNA and WESTERN RAILROAD COMPANY, Defendant.

      Master and sei-vant — negligence of co-employe — when master liable for.

    This action was brought to recover damages for the death of plaintiff's husband, a fireman employed on one of defendant’s engines, who had been killed because of the train on which he was employed having run from the track. The accident was caused by the defective condition of -the track, and evidence was given to show that notice of the defective condition of the track had been given to the foreman of the gang of men employed by defendant to repair its tracks, before the accident.
    Upon an appeal from a nonsuit, held, that if the accident was occasioned by the defective condition of the track; if due notice thereof had been given to defendant, and if plaintiff’s husband was free from contributory negligence, plaintiff was entitled to recover.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed at the Circuit.
    The plaintiff’s husband was a servant of the defendant employed as fireman on the engine ‘ ‘ Plymouth,” upon one of its trains running south towards Sherburne in Chenango county, which engine ran off the track in consequence of defective ties and rails, causing the death of the fireman, the husband of plaintiff. There was evidence of defects and imperfections, at the place where the train left the track, in the ties, rails and joints. There was evidence that the defects had been pointed out to Sterling, foreman of a gang of men charged with repair of the track, before the accident occurred, and that he did not remedy them.

      jL O. Coxe, for the plaintiff.

      H. Ilurlburt and B. Hernán, for the defendant.
   Hardin, J.:

Our attention has been called, since the argument of this case, to the decision made by the Court of Appeals in Mehan v. Bing. R. R. Co., in which that court lay down the rule that the employer is bound to furnish appliances and machinery and road-beds reasonably safe for the use of its employes, and that for such omission of duty a liability exists to those injured without negligence contributing to the injuries. The principles laid down in that case are applicable to this one. The trial judge should, therefore, have submitted to the jury, first: The question of fact in respect to the extent and character of the defects revealed by the evidence; second, whether the defendant had notice thereof before the injuries happened; third, whether the husband of the plaintiff was free from negligence contributing to the injuries. (Arkerson v. Dennison, 117 Mass., 409; Laning v. N. Y. C. & H. R. R. R. Co., 49 N. Y., 532; Plank v. Same, 1 N. Y. S. C. [T. & C.], 319; affirmed, 60 N. Y., 607; Snow v. Housatonic R. R., 8 Allen, 441; Flike v. N. Y. C. & H. R. R. R. Co., 53 N. Y., 553; Corcoran v. Holbrook 59 id., 519; Malone v. Hathaway, 64 id., 5; Tinny v. B. & A. R. R. Co., 62 Barb., 218; Faulkner v. Erie Railway Co., 49 id., 324; Anderson v. Rome, W. & O. R. R. Co., 54 N. Y., 334.)

The nonsuit was, therefore, improperly granted and must be set aside and a new trial ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

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


text:
    JOHN MITCHELL, as Administrator, Etc., of ALEXANDER MITCHELL, Deceased, Appellant, v. EGBERT P. CARTER and HORACE S. PARKER, Respondents.

      Verdict of jury — •when set aside for irregular conduct of the jurors.

    Upon a motion to set aside a verdict for irregularity on the part of the jurors, ifc appeai’ed that, after the adjournment for the day, the jury, having been charged, occupied the coui-t-room, and found there the minutes kept by the justice holding the court; some of the jurors read portions of the minutes and commented thereon, and others attempted to do so, but were unable to make them out. The minutes did not contain all the testimony, nor were they used by consent of counsel.

      Held, that the verdict subsequently arrived at was properly set aside for this irregularity.

      Neil v. Abel (24 Wend., 185) followed.
    Appeal from an order of the Erie Special Term, setting aside the verdict in this action for irregularity and granting a new trial. The cause was tried at the Cattaragus Circuit before Justice Daniels and a jury. The jury was charged about 9 p. m. and retired to a room, and the court adjourned until morning. After the adjournment, the jury returned to the court-room and occupied it until morning. Justice Daniels kept minutes of the testimony in a book, which he left on his desk in the court-room where the trial took place, and the jury had access to this book of minutes. The constable, in his first affidavit, says it was proposed by some of the jury to examine the testimony kept by Judge Daniels ; the book ivas taken by the jury and read and examined by them, or some of them ; that said evidence was commented on by the jury, after being so read and examined, and that said jury agreed upon said verdict after reading and examining said evidence. In his second affidavit he says the jury tried to read the stenographer’s minutes and were unable to do so, and “ that they afterwards looked at another book "which deponent did not look at, and does not know what it was, and after looking at it a few moments each of the jurors who looked admitted that he was unacquainted with the handwriting contained in it, and was unable to make out its contents; that the two books mentioned were the only books referred to by the said jury after they retired, before they agreed on their verdict, * * * and deponent does not know that either of the books so referred to as aforesaid contained the minutes of J udge Daniels taken on the trial of the cause.” He then says all the statements in his first affidavit, which are “ contrary to or inconsistent with the statements in his second affidavit, are untrue.” One of the defendants makes an affidavit that at 11 p. m. he saw a light in the court house, and saw some of the jury standing at the desk where the judge kept his book of minutes, and also that the constable after the trial told him “ the jury road and examined the minutes kept by J udge Daniels on said trial and commented thereon.” The affidavit of L. Spring, attorney for the defendant, states that about 11 p. m., while the jury was deliberating, “he went to the court-house and saw a light in said courtroom where the trial took placealso, “that before the opening of the court, on the morning of the 28th of September, and after the jury had agreed upon their verdict, deponent saw said book of Judge Daniels on his desk and read the evidence as taken by Judge Daniels of the testimony of the witness on the trial in said book; that said testimony as taken was quite full and legible, but the whole of it was not taken down in full as taken by the stenographer.” That no consent was given that the book be read, and that he did not learn of it until some time after the trial. Affidavits of jurors were made to the effect that they read and commented on the minutes, and other affidavits of other jurors were made to the effect that they looked at the book, did not and could not read it, as it was illegible and words abbreviated, that none of the jurors read it.

      H. W Hill, for the appellant.

      L. Spring and T. Corbett, for the respondents.
   Hardin, J.:

Upon reading the affidavits used upon the motion, it is apparent (1st) that Judge Daniels kept a book in which some of the evidence ,was entered, and (2d) that it was left on his desk in the court-room on the adjournment at night; (3d) that the jury occupied the court-room after the adjournment, most of the time, until they agreed, sealed their verdict, and separated, about five o’clock in the morning; (4th) that some of the jurors attempted to read the stenographer’s minutes, and failed; (5th) that the jurors had access to the book kept by Justice Daniels; (6th) that some of the jurors could not read his minutes; (7th) that some could read portions thereof, and did read portions thereof, and made comments in respect to the evidence so read in the minutes.

These conclusions are derivable from affidavits used upon the motion, exclusive of those of the jurors used to impeach their verdict. It is settled that the affidavits of jurors cannot be used to impeach or impair their verdict. (Clum v. Smith, 5 Hill, 560; Williams v. Montgomery, 60 N. Y., 648; Dana v. Tucker, 4 Johns., 487; Green v. Bliss, 12 How. Pr., 428). The declarations, of jurors for such purpose are inadmissible. (Taylor v. Everett, 2 How., 23; Clum v. Smith, 5 Hill, 560).

Upon the conclusions drawn from the affidavits, the case of Neil v. Abel and Annas (24 Wend., 185), is an authority decisive of the motion against the plaintiff. In that case, in an action upon contract, tried before a justice of the peace, the minutes of trial kept by him were handed to a constable, and by him taken to the jury room, and in five minutes after withdrawn by the justice. The Common Pleas on certiorari reversed the justice’s judgment, and on an appeal to the Supreme Court their judgment was sustained. Bronson, J., in delivering the opinion, collects the cases and concludes that the Common Pleas were right in holding this to be a fatal error.

He remarks incidentally that “the minutes of testimony kept by a justice of the peace are usually very imperfect.” We might speculate in respect to the minutes of a justice of this court being presumed to be more perfect, but that would be unavailing in this case, as the affidavits show the minutes of Justice Daniels did not contain all the evidence given upon the trial. The examination of the book of minutes by some of the jurors, without the knowledge and consent of the parties, must be held a fatal error, and the verdict, was, therefore, properly set aside. (See Hancock v. Salmon, 8 Barb., 564.)

It is the policy of the law to watch over the deliberations of the jury, and to guard them from all impressions and influences in respect to the issues involved not derived from a trial in open court, in the presence of the parties and their counsel, where ample opportunity is given to object to the admission of any evidence or comments not sanctioned by the law.

If minutes could be taken and read, it would be difficult to avoid the effect of marginal notes and underscorings of parts of the evidence and comments, which are sometimes found in the minute books of the most faithful, upright, and painstaking trial judges. Slight circumstances and inconsiderable observations may sometimes influence a juror’s mind. (Watertown B. & L. Co. v. Mix, 51 N. Y., 561; Schnapper v. Second Ave. R. R. Co., 55. Barb., 497.)

Private communication to a jury is very properly and strongly condemned by Johnson, J., in N. B. L. Co. v. Mix (supra). The burden of showing improper communications or observations, in writing or otherwise, should not be thrown upon a defeated party, who challenges any irregularity occurring in the deliberation hours of a retired jury. (Id., 561).

The Special Term was right in setting aside the verdict and granting a new trial, and the order must be affirmed, with costs and disbursements.

Talcott, P. J., and Smith, J., concurred.

Order affirmed, with costs and disbursements.


author: Hardin, J.: Talcott, P. J.

text:
    WILLIAM BROADHEAD, Plaintiff, v. THE LYCOMING FIRE INSURANCE COMPANY, Etc., Defendant.

      Policy of insurance — Knowledge of its agent, when that of the insurance company — estoppel — waiver.

    In an action to recover the amount due upon a policy of insurance against fire issued by the defendant, the defense alleged was a breach of certain conditions of the policy, avoiding it in case the assured was not the sole owner of the premises insured, or in case his title was not absolute. Upon the trial it appeared that the agent of the company, at the time of issuing the policy, had full knowledge as to the actual interest of the assured in the property, .to' which he did not hold the absolute title.

      Held, that the knowledge of the agent was the knowledge of the company, and that the issuing of the policy with full knowledge of the interest of the assured was a waiver of those conditions, or operated as an estoppel against the company.

      Van iSchoiclc v. The Niagara Pire Ini. Co. (68 N. Y., 434) followed.
    Motion for a new trial on exceptions ordered to be heard, in the first instance, at the General Term, after a verdict directed for the plaintiff.
    The action was on a policy of insurance, dated January 26, 1875, covering a building for $333; also machinery, $333; also stock, $168. The policy was countersigned by Hiram Smith; second, agent. The property was destroyed by fire September 3. 1875. The cause was tried at the Chautauqua Circuit. The verdict was directed for the plaintiff for $180.74, being for the amount of material plaintiff had in the mill. The plaintiff excepted to the direction of the court, and asked to go to the jury on the question of waiver of stipulations in the policy, and also upon the question of fraud on the part of the agent. The request was refused by the court, and plaintiff excepted.
    The policy was issued to plaintiff, who did not have title in fee to the land, but he held the premises under an assignment of land ■contracts from Morse, who held contracts for the purchase thereof, and transferred them to the plaintiff for indorsing and becoming surety for him. Thereafter Morse made an assignment to plaintiff for the benefit of his creditors, and the plaintiff took possession of the property and operated the mill.
    While possessing this property under these claims, the-plaintiff obtained the policy and the fire occurred. The court only allowed the plaintiff to recover what he owned in the mill in his individual right. Upon the trial, the defendant admitted the agency of Smith, and the policy. The policy ran to the-plaintiff, and was dated the 26th of January, 1875. It was-countersigned by Smith, the agent. The policy contained the following clauses:
    “ The use of general terms, or anything less than a distinct, specific agreement, clearly expressed and indorsed in this policy, shall not be construed as a waiver of any printed or written condition or restriction therein.
    “ Re-insurance, in case of loss, to be settled in proportion as the sum re-insured shall bear to the whole sum covered by the re-insured company.
    “ In case of any other insurance upon the property hereby insured, whether made prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon; and it is hereby declared and agreed that, in case of the assured holding any other policy in this or any other company on the property insured, subject to the conditions of average, this policy shall be subject to the average in like manner.
    “ All fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claims on this company under this policy.
    “It is expressly understood, and a part of this contract, that any person other than the assured who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of this company, under any circumstances whatever, or in any transaction relating to this insurance.
    “ No agent is empowered to waive any of the conditions of this policy, either before or after a loss, without special authority, in writing, fi’om the compaxxy.
    “ Axxd it is hereby xinderstood and agreed by aixd betweeix this compaxxy aixd the assured, that this policy is made axxd accepted ixi reference to the foregoing terms axxd conditions, which are hereby declared to be a part of this contract, and are to be used and resorted to in order to determine the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for in writing.
    “ This policy shall not be valid until countersigned by-.
    “If the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property for the use and benefit of the assured; or if the building insured stands on leased ground, it must be so represented to the company and so expressed in the written part of this policy, otherwise the policy shall be void.
    “ When property has been sold'and delivered, or otherwise disposed of, so that all interest or liability on the part of the assured herein named has ceased, this insurance on such property shall immediately terminate.
    “ Goods held on storage or commission must be separately and specifically insured.”
    There was no written application for the policy. It was delivered about the date of the policy by Smith, the agent of the company, and was held by the plaintiff until the building was burned. The proofs were presented October, 1875.
    The general assignment executed by Morse was dated December 9, 1874. After the assignment plaintiff took possession of the mill. He also had a chattel mortgage on some of the personal property; and had taken possession of the personal property. When the property was transferred by Morse to the plaintiff it was insured, and the policies were transferred to the plaintiff, to which transfer Smith consented. Afterwards Smith asked the plaintiff if he wanted the policies continued. The policy was made out and delivered to plaintiff without an examination. Evidence was given tending to show that Smith was informed of "the several transfers of the property.
    Some evidence offered by plaintiff to establish knowledge in Smith, the agent, of the condition of the title and the rights of' plaintiff therein at the time the policy was issued, was excluded by the court and the plaintiff excepted.
    The defense was: 1. A breach of the conditions and terms of the policy, as it was claimed that the plaintiff was not the owner thereof solely; and, 2. That his title was not absolute.

      Q. R. Lockwood, for the appellant.

      W. F. Qogswell, for the respondent.
   Hardin, J.:

If all the stipulations in the policy were in force at the time of the fire, the plaintiff could not recover. The trial judge held, in effect, that knowledge of the agent of the facts in respect to the title to the property did not affect the policy. He was justified in so holding under the authority of Alexander v. The Germania Insurance Co. (66 N. Y., 464), and Miaghan v. The Hartford Ins. Co. (12 Hun, 321.)

But since the trial and since those cases were decided, the Court of Appeals, in Van Schoick v. The Niagara Fire Insurance Co. (68 N. Y., 434), has held that knowledge of the agent of facts, in respect to the ownership of the property, was knowledge by the company, and that such knowledge of the title as disclosed in this case by the evidence, may have the effect of a waiver by the company of the conditions in its policy or authorize the finding of an estoppel.

We must follow the principles laid down by Forger, J., in his opinion in that case, and we, therefore, hold that there was a question of fact for the juiy in respect to the knowledge possessed by Smith, the agent, at the time he delivered the policy to the plaintiff.

We must, therefore, set aside the verdict and grant a new trial, with costs to abide the event.

Talcott, P. J.

I concur in the foregoing opinion of Hardin, Justice, on the authority of Van Schoick v. The Niagara Fire Ins. Co., reported in 68 N. Y., 434, as being the latest enunciation of the law on the subject by the court of last resort.

Smith, J., concurred.

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


author: Hardin, J.: Talcott, P. J.:

text:
    DANIEL W. CHASE and others, Appellants, v. THE PEOPLE’S FIRE INSURANCE COMPANY, Respondent.

      Knowledge of agent — when imputable to company — what constitutes an estoppel upon company.

    This action was brought upon a policy of insurance against loss by fire which described the property of the assured as “ his one-story frame dwelling-house, occupied by tenant.” One Tomlin, who was employed by Smith & Elwood, defendant’s agents at Rochestei’, solicited the insurance. He knew at the time that the house was vacant, and so told Smith & Elwood’s clerk, by whom the policy was made out. The fiolicy provided that any person other than the assured who procured insurance should be regarded as the agent of the assured, and not of the company.

      Held,, that the knowledge of Smith & Elwood was the knowledge of the company; and that having issued the policy with full knowledge of the facts, they could not thereafter claim that it was void because the description in the policy was false.

      Van Sehoick v. Kiagara Fire Ins. Co. (68 N. Y., 434) followed.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit.
    The action was on a policy of insurance against loss by fire issued by defendants. The policy described the insured property as “his one story frame dwelling-house occupied by tenant, situated,” etc.
    The policy was issued November 1, 1874, by Smith & Elwood,the defendant’s agents at their office, in Rochester. Fire destroyed the buildings December 12, 1874, and notice was given to the company. The building was not “occupied by tenant” at time policy was issued, nor at time of the fire; one John D. Tomlin solicited the insurance; he was in the employ of Smith & Elwood. He was fully informed that the dwelling-house was unoccupied when the policy was issued. He testified that he communicated to his employers (Smith & Elwood’s clerk), that the house was unoccupied. Their clerk, Willard, wrote the policy after such information was given to him. The evidence appeared to justify the inference that Smith & Elwood had knowledge through their clerk that the house was unoccupied. The policy was filled by the clerk with the words “ occupied by tenant,” countersigned and delivered to Jones, with provision that loss was payable to Daveuport; Davenport assigned, to plaintiff. There was no written application. The policy contained a clause, viz.: It is a part of this contract that'any person .other than the assured who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of the company under any circumstances whatever, or in any transaction relating to this insurance.

      J. A. Stull, for the appellant.
    Since the defendant — through its agent, who was authorized to write up and issue the policy— had full knowledge of the facts in this regard; and notwithstanding that, by its own wrongful act, it inserted in the policy the clause “occupied by tenant,” which it knew at the time to be false, and then delivered the policy to the insured saying, “it was all straight” — to allow the defendant now to set up that the policy was void for that reason, would clearly operate as a fraud on the plaintiff, and the defendants should be held to be estopped from so doing. (Wood on Fire Ins., §§ 386, 389, p. 637; 14 N. Y., 253; 56 id., 565; 6 T. & C. [N. Y.], 364; Maher v. Hibernian Ins. Co., 15 Alb. Law Journal, 47, January 20, 1877; S. C. 3 Weekly Dig., 570, affirming decision of this court; S. C., 13 N. Y. S. C. R., 351; S. G, 67 N. Y., 283.) Smith & Elwood, being authorized to issue and countc;sign policies, etc., were such general agents that they might waive a condition in a policy as to occupation, and such waiver need not be indorsed on the policy even when the policy required it. (Walsh v. Hartford Fire Ins. Co., 4 N. Y. Weekly Dig., 284.) If the policy is to be regarded as so drawn by mistake, then the case is covered by the decision in Gates v. Penn. Fire Ins. Co. (18 N. Y. S. C. R., 490.)

      Theodore Bacon, for the respondent.
    The policy was void ah ■initio, by reason of the false description of the building as “occupied by a tenant.” ( Wall v. East River M. I Co., 3 Seld., 370; Parmelee v. Hoffman F. I. Co., 54 N. Y., 193; Merwin v. Star F. I. Co., 7 Hun, 659; Alexander v. Germania F. I. Co. [Court' of Appeals], 66 N. Y., 464.) Even notice to Smith & Elwood themselves would not have prevailed over the written contract. (Jennings v. Chenango M. I. Co., 2 Dcnio, 75; Broion v. Catta

      raugus M. I Co., 18 N. Y., 387; Chase v. Hamilton I. Co., 20 id., 52; Rohrbach v. Germania F. I. Co., 62 id., 47; Alexander v. Gemíanla F. I. Co., ubi supra-, Walsh v. Hartford F. I. Co., 17 Alb. Law Jour., 273.)
   Hardin, J.:

When the policy was issued the house was not “ occupied by tenant.” That fact was known to Tomlin, who solicited the policy. He may be deemed the agent of the assured under the provision in the policy, to wit: “ It is a part of this contract that any person other than the assured who may have procured this insurance to be taken by this company, shall be deemed to be the agent of the assured named in this policy, and not of this company, under any circumstances whatever, or in any transaction relating to this insurance.” He solicited the policy, became fully aware of the fact that the dwelling was unoccupied; that the assured knew it, and still wished it insured, and knew that some companies would not carry a risk on it, and that others would; and Tomlin, knowing these facts, went to the office of Smith & Elwood, agents for the defendant, and saw a clerk, stated the facts of its non-occupation, applied for a policy, which was written by the clerk, took and delivered the policy and secured the piemium, paid it over to Smith & Elwood, who paid it over to the defendant, and the defendant received it and put it away in its coffers, and for no other consideration than the policy so issued. The clerk of Smith & Elwood was acting for them, and was authorized by them to do many things apparently which they could do; and , according to Bodine v. Ex. Fire Ins. Co. (51 N. Y., 117), his act was the act of Smith & Elwood, the agents of the company. It may be inferred from the evidence that, through the acts and statements of the clerk, Smith & Elwood had full knowledge of the non-occupation of the premises at the time they issued the policy for the defendant.

The case of Gates v. Penn. Insurance Co. (17 N. Y. S. C. R., 490), was very similar in principle to this one, and the General Term of this department held there could be a recovery. The principle laid down by Mullin, P. J., in that case, would uphold a recovery here. The learned counsel for respondent cites Alex ander v. Germania Fire Insurance Co., decided in February, 1876, by the Court of Appeals, and reported 66 N. Y., 464. In that case there was a written application taken by one Brewster, who was the party who procured the insurance, and under a similar clause as to being the agent of the assured. It was held that knowledge by him of the fact that the house was vacant was not notice to the company, and that knowledge of such fact by such a person did not prevent the company from insisting upon the breach of the warranty. A similar doctrine was laid down in Rohrbach v. The Germania Fire Insurance Co. (62 N. Y. ., 47).

These cases are commented upon by Folger, J., in Van Schoick v. Niagara Fire Insurance Co. (68 N. Y., 434), and explained. He says, 11 that the policy was delivered and the premium received, with full purpose of making a valid and obligatory contract, is evidence that, through neglect or forgetfulness, one of the forms was not observed, or that it was waived by the parties.” Also, he says: “ In- the case in hand, there is a consideration in the • premium paid which would not have been done with an understanding that the condition should remain and be enforced, thus making the payment futile. In the purview of some of the cases, there is also an estoppel.” The learned judge in that case reached, the conclusion that Lewis was the agent of the company, and that Ills knowledge that the buildings were on leased lands was equivalent to the knowledge thereof by the company; or, in other words, that through his knowledge of the fact the company had notice. He then adds: “ It is difficult to make all the cases upon this subject harmonize; but by the force of authority we are constrained to hold that such a condition as this may be waived by the insurer, by express words to that effect, or by acts done under such circumstances as would otherwise impute a fraudident purpose, and as will estop him from setting up the condition against the insured.” The learned judge thus reaches a conclusion that the company, under the circumstances disclosed then, could not successfully defend. This court is, therefore, justified in concluding, in this case, that there was an estoppel or waiver by the defendant at the time of issuing the policy.

These views lead to the conclusion that the learned judge at the Circuit improperly granted the motion for a nonsuit, and that a new trial should be granted, with costs to abide the event.

Talcott, P. J.:

Desiring, as far as possible, to be governed by the decisions of the court of last resort, I concur in the foregoing opinion of Hardin, J., on the authority of Van Schoick v. The Niagara Fire Ins. Co., reported in 68 N. Y., 434, which is the latest enunciation of the law on the subject to which we have at present, access-— overruling, as we understand it does, the case of Alexander v. The Germania Ins. Co., reported in 66 N. Y., 464.

Smith, J., not sitting.

.New trial ordered, with costs to abide the event.