text:
    JOHN D. HAMILTON, Respondent, v. WILLIAM AUSTIN and THOMAS D. CHAPMAN, Appellants.

      Nursery stock, growing in a nursery, is covered by a mortgage of the land — right of. the tenant to remove and sell it — when the mortgagee cannot recover the value of what is so removed.

    Although trees grown iu a nursery expressly for sale as merchandise are covered by a mortgage on the land, yet it is not waste for a tenant of nursery grounds, who has entered thereon after a mortgage has been given upon them, to remove and sell, in good faith, and in the usual course of business, growing nursery stock, if this be done before an action to foreclose the mortgage" has been begun, and not in apprehension of the foreclosure or for the purpose of injuring the freehold and security.

      A mortgagee cannot, in an action brought against the occupant of the land to recover a deficiency arising upon a sale in the action of foreclosure, recover the value of the nursery stock so sold by him, in good faith and in the usual course of business.
    After an action of foreclosure has been commenced the plaintiff may, if the security is in jeopardy, intercept, through the aid of a receiver, the rents or emblements, or both; but the receiver is not entitled to recover for rents col' lected or emblements removed prior to the date of his appointment.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    Prior to November 6, 1876, John F. Chapman was in possession of thirty acres of land as a tenant, which he had occupied for several years as a nursery. November 6, 1876, the owner of the fee conveyed the land by a warranty deed to Chapman, who on the same day gave the vendor his bond conditioned for the payment of $5,000 (part of the purchase-price) on the 6th of November, 1881, with semi-annual interest, payable on each fourteenth day of April and October thereafter. As security, Chapman on the same day executed a mortgage on the premises, which was recorded November 8, 3 876. Neither conveyance refers to the nursery or its stock. February 7, 1877, the plaintiff purchased the bond and mortgage in good faith, and for value, taking an assignment, which was recorded February 7,1877.
    November 17, 1881, the plaintiff began an action to foreclose the mortgage, making the defendants in this action defendants in the foreclosure action.
    February 25, 1882, judgment was entered in the foreclosure action, and April 10, 1882, the premises were sold and conveyed thereunder to the plaintiff for $1,100, leaving a deficiency of $1,812.90 due on the judgment.
    Before the plaintiff purchased, the mortgagor, knowing of hia contemplated purchase, told the plaintiff that the mortgage covered the nursery stock; that he intended to continue the business, and that the security was good; upon which statement the plaintiff relied in purchasing the bond and mortgage. From November 6, 1876, to January 1, 1879, the mortgagor continued the nursery business, growing and selling trees, according to the custom of nurserymen. January 1, 1879, the mortgagor sold a half interest in the nursery stock and business to William Austin (one of the defendants), they becoming, on the same day, equal copartners in the business, the firm on the same day taking a lease of the land during the existence of the copartnership, which was to continue during the pleasure of the copartners. Austin, when he purchased, knew of the plaintiff’s mortgage, but did not know that he purchased it upon the mortgagor’s statement that it was a lieu upon the nursery stock. Chapman and Austin continued the nursery business until April 29,1881, growing and selling trees, according to the custom of nurserymen. April 29, 1881, the mortgagor (John F. Chapman) assigned all of his interest in the nursery business to 'Thomas D. Chapman, in consideration of a precedent debt. (The twenty-fifth finding of fact by the referee states that the assignment was made April 29, 1879, but the briefs of counsel fix the date as April. 29, 18S1, which is evidently correct.)
    Thomas D. Chapman, when he purchased, knew of the plaintiff’s mortgage, but did not know that he purchased it upon the mortgagor’s statement that it was a lieu upon the nursery stock.
    May 1, 1881, Thomas D. Chapman entered into copartnership in ■the nursery business, and continued to occupy the premises as a nursery until April 10, 1882, the date of the sale aud conveyance under the foreclosure. During all this time the mortgagee aud his assignee (this plaintiff) knew that the nursery business was being carried on on the premises by said persons, and that they were ■engaged in rearing and selling trees according to the custom of nurserymen. The plaintiff made no objection to the sale of trees, or to the mode in which the business was conducted until December 2, 1881, when he obtained and served an order in the foreclosure .action restraining the defendants in this action from removing trees, shrubbery or fixtures from the premises, which order was modified March 30, 1882, so as to allow defendants to remove so much of the nursery stock as had been placed on the premises since January 1, 1879. May 1, 1881, the mortgagor died seized of the premises and insolvent, leaving a will of which Thomas D. Chapman was one of the executors. The will was probated, but whether it devised this real estate, or whether it descended to his heirs-at-law, does not appear.
    This action is brought to recover of the defendants damages for the removal from the premises, and selling; nursery stock between May 1, 1881, and May 10, 1882, to the injury of the plaintiff’s security as mortgagee. The referee finds that between May 1, 1881, and April 10, 1882, the defendants removed from the premises trees, plants and shrubs of the value of $2,278, as they stood upon the premises before removal. It is further found that the value of the stock removed, which had been planted by the mortgagor prior to January 1, 1879, was $104; that the value of stock removed, which had been planted by the mortgagor and Austin, prior to-April 29,1881, was $1,758, and that the value of the stock removed which had been planted by the defendants since April 29, 1881, was $416. The referee held that the removal was waste, and directed a judgment for the plaintiff for $1,812.90, the amount of the deficiency on the foreclosure sale.
    Judgment was entered, from which the defendants appeal.

      William G. Tracy, for the appellants.

      Cornelius E. Stephens, for the respondent.
   Follett, J.:

As between mortgagor and mortgagee, trees grown in a nursery expressly for sale as merchandise, are covered by the mortgage, and those standing on the land when it is sold under a foreclosure, pass with the land to the purchaser. (Maples v. Millon, 31 Conn., 598; King v. Wilcomb, 7 Barb., 263-267; Price v. Brayton, 19 Iowa, 309; Adams v. Beadle, 47 id., 439; Jones’ Mort., §§ 434, 697.) Fixtures placed or emblements grown upon mortgaged premises by a tenant of a mortgagor, entering subsequent to a recorded mortgage, are covered by it, and the tenant’s right of removal is governed by the rules prevailing as between mortgagor and mortgagee, and not by the rules prevailing between landlord and tenant. (Lynde v. Rowe, 12 Allen, 100; Clary v. Owen, 15 Gray, 522; Lane v. King, 8 Wend., 584; Jones’ Mort., §§ 439, 697, 776, 780.) The rule is the same when the tenants are a firm composed of the mortgagor and a third person. (Lynde v. Rowe, supra.) None of the cases cited involve the question as to whether a mortgagee can recover of a mortgagor or of his tenant for trees removed before foreclosure in the due course of business. In Maples v. Millon (supra), the mortgagor began the removal of nursery trees pending a foreclosure, and he was restrained by an injunction issued in the action. In Price v. Brayton and Adams v. Beadle the nursery stock was growing on the land at the time of the foreclosure sale. In King v. Wilcomb (supra), the parties were copartners in a nursery growing on the land of "Wilcomb, which he mortgaged while the firm was in possession and engaged in the business. Upon the foreclosure the land upon which the trees were then standing was sold to Howland, who purchased with notice that King claimed half of the trees. Howland (who was a defendant in the action), failed to allege or prove that the mortgagee under whose mortgage he claimed was' a mortgagee in good faith and for a valuable consideration ; and the court, applying the rule that one who seeks the benefit of the position of a purchaser in good faith,' and for a valuble consideration, must allege and prove the fact (Tan Santv. PI. [Moak’s ed.], 394, 564; Pom.’s Eq. Jur., § 785), held that How-land was not a purchaser in good faith, and that King was entitled to half of the trees. In the case last cited, it is to be observed that King’s interest in the premises was acquired prior to the mortgage, while in the case at bar the mortgage is prior to the interest acquired by the defendants.

Trees reared in nursery grounds exjiressly for sale as merchandise possess none of the legal characteristics of fixtures. Fixtures are articles which have an existence independent of a freehold, and are afterwards annexed to and become a part of it. The trees in dispute never had an existence independent of the freehold, wore not designed for use in connection with it, but were there solely for growth, and destined to become a part of other realty. Nursery trees more nearly resemble emblements, though they are not strictly such; emblements being the annual product or fruit of things sown or planted. Hops, berries and the like are emblements, but the roots and bushes from which they grow are perennial, and not strictly emblements. While the rules for determining the rights to fixtures and emblements, as between mortgagors and mortgagees, are not strictly applicable to the question involved, yet they throw some light upon it. Emblements reared by tenants entering subsequent to a mortgage, if growing at the time of the foreclosure sale, pass to the purchaser. But if the tenant, in the usual course of husbandry, gathers the emblements before sale on foreclosure, they belong to him, and he is not liable in an action of waste.

Waste is an improper destruction or material alteration or deterioration of the freehold, or of things forming an essential part of it, done or suffered by a person rightfully in possession as tenant, or having but a partial estate, like a mortgagor. It is not waste for a mortgagor of agricultural lands to sell timber, remove or change fixtures, if done in good faith, in the usual course of good husbandry, and before foreclosure is begun, or default has occurred upon the mortgage. Nor is it waste for him to sell stone from open quarries, or minerals from open mines, if done in thé usual course of such business, though the product removed may exceed the value of the remaining freehold. These considerations lead to the conclusion that it is not waste for a tenant of nursery grounds, •entering subsequent to a mortgage, to remove and sell in good faith, and in the usual course of business, growing nursery stock, if done before foreclosure is begun, and not in apprehension of foreclosure or for the purpose of injuring the freehold and the security. (Adams v. Beadle, supra)

After foreclosure is begun the plaintiff may, if the security is in jeopardy, intercept, through the aid of . a receiver, the rents or emblements, or both, upon the theory that the whole estate is pledged as security for the debt, and that the creditor is immediately entitled to his money, or the property pledged. (Hollenbleck v. Donnell, 94 N. Y., 347; Bank v. Arnold, 5 Paige, 40.) But in such case a receiver is not entitled to recover for rents collected or emblements removed prior to the date of his appointment, his right being confined to subsequent rents and profits, and to the rents uncollected at the time of his appointment. No case has been found (in the States in which the legal right to possession, and to the rents and emblements continues in the mortgagor until sale), holding that a plaintiff may neglect to enforce his equitable right to intercept, through a receiver, rents and emblements and recover them, or their value, after foreclosure, in an action ar law; After foreclosure the mortgagee’s right to recover of the mortgagor, or his tenant, for acts committed upon the land before the sale, is limited to acts amounting to waste, within the definition above given. Such was the case of Van Pelt v. McGraw (4 N. Y., 110). The undisputed evidence is, that part of the trees for which the plaintiff recovered were removed and sold in the usual course of business. The defendants excepted to the conclusions of the referee, that the plaintiff was entitled to recover for trees so sold, and requested a finding that the plaintiff was not entitled to recover for trees so-sold arid removed, which was refused, and an exception taken. For this error the judgment must be reversed.

It would be unwise at this time, in advance of the evidence which will be given and the facts which will be found on the retrial, to attempt a more definite specification of the classes of trees for which, if any, a recovery may be had. The case does not disclose when default occurred in the payment of interest, the number of trees removed before or after foreclosure was begun, what portion was fit for removal and sale in the ordinary course of business at the time of removal, or the number removed and transplanted in other grounds, if any, to escape the consequences of foreclosure. Under the evidence developed on the trial, the statement of the mortgagor to the plaintiff before purchasing the mortgage, that the nursery stock wras subject to it, does not change the rights of the parties.

The mortgage was a general lien under the law, and the evidence is insufficient to justify the conclusion that either party understood it to be a specific lien on the stock, independent of its connection with the land. After the date of the plaintiff’s purchase, the mortgagor and his tenants continued the business of growing new trees and selling those fit for market, as before, without objection from the mortgagee, who never claimed a specific lien. A mortgagee may, by acquiescence, w'aive his right to recover for the removal of things belonging to the freehold. (Jones’ Mort., § 692.) The evidence does not warrant the conclusion that the defendants-were tresspassers on the land, instead of tenants. (King v. Wilcomb, 7 Barb., 263; Wood’s L. and T., 67.)

The judgment is reversed and a new trial ordered before another referee, with costs, to abide the event.

Hardin, P. J"., and Boardman, J"., concurred.

Judgment reversed and a new trial ordered before another referee,, with costs to abide the event.


source: Caselaw Access Project

author: Eollett, J.:

license: Public Domain

text:
    MELISSA L. CLOYES, Appellant, v. NORMAN S. CLOYES, Respondent.

      Check — no action thereon lies against the drawer when it is gimen as a present — a subsisting contract to marry is not a good consideration.

    This action was brought by the plaintiff to recover the amount of a check given by the defendant to her, on the day of their marriage, April 28, 1881. There was no consideration for the check, which was drawn in the ordinary form upon a bank in which the defendant had funds sufficient to meet it. The parties having subsequently separated, the plaintiff presented the check for payment, and upon the refusal of .he bank to pay it brought this action against the defendant.

      Held, that the action could not be maintained.
    Appeal from a judgment, entered upon a nonsuit.
    Tbe plaintiff and defendant intermarried April 28,1881, but have since separated. On the day of their marriage, and before the ceremony, the defendant drew his cheek on a bank payable to his intended wife for $100, and placed it among, and exhibited it as one of, the gifts to the bride. The check was in the ordinary form and drawn upon a bank in which defendant had sufficient funds to pay it. The next morning the plaintiff delivered the check to the defendant for safe keeping. Within a few months domestic difficulties occurred; after which, and in September, 1881, the plaintiff took the check from defendant’s vest pocket and presented it to the bank for payment, which was refused, because the defendant’s account was not then good for that amount. August 11, 1882, this action was brought to recover the amount of the check. The plaintiff was nonsuited, and a judgment was entered dismissing the complaint, from which she appeals.

      Brown <& Mitchell, for the appellant.

      William Kernan, for the respondent.
   Eollett, J.:

In an action by the payee of a dishonored check against the drawer, it is presumed that the chock was. given upon a sufficient consideration. (Conroy v. Warren, 3 Johns. Cas., 259; 2 Dan. Neg. Ins., §§ 1616, 1652.) Cheeks negotiable in form are in this respect subject to the rules applicable to negotiable paper. In an action by the payee against the maker of negotiable paper, a consideration is presumed, though the words “for value received ” are not contained in the instrument. (Kinsman v. Birdsall, 2 E. D. Smith, 395; 1 Edw. Bills [3d ed.], § 202.) But this presumption is rebuttible, and in this case the presumption was so effectually overthrown that the existence of a consideration was not a question of fact for the jury.

The defendant testified that it was given without consideration, and the plaintiff did not dispute him. The evidence does not warrant the conclusion that the marriage was in consideration of the check, or that the check w;as given in consideration of the marriage. The plaintiff testified: “ I saw the check that evening after the marriage; that was when I first saw it; I had no talk with my husband about it before the marriage; I didn’t know anything about it; knew nothing about the check before the marriage; it was a surprise to me; I don’t know who got it from the ■defendant.”

A subsisting contract to marry is not a legal consideration for new contracts afterwards entered into between the parties, unless •the new contract formed part of the consideration for the contract to marry. (Raymond v. Sellick, 10 Conn., 179, 183.) When the check was delivered the agreement to marry was a valid and subsisting contract.) The action cannot be maintained upon the theory that the check was a valid gift. The word “ gift ” signifies an actual transfer in presentí of property without consideration. The check did not transfer m presentí to the payee $100, or any part of the funds standing to the credit of the drawer upon the books of the drawee. (Attorney-General v. The Continental Life Ins. Co., 71 N. Y., 325; Coates v. First National Bank of Emporia, 91 id., 20, 26; Bank of the Republic v. Millard, 10 Wall., 152.) No specific property was transferred by the defendant to the plaintiff. It was a naked promise. The check being without consideration, this action cannot be sustained. (Harris v. Clark, 3 N. Y., 93; Raymond v. Sellick, supra; Jones v. Lock, L. R., 1 Ch. App. Cas., 25; Basket v. Hassell, 107 U. S., 602, 612 and cases there cited; Byles on Bills [13th ed.], 126.) There is a broad distinction. between tbe gift of tbe check or obligation of a third person, and a gift of tbe donor’s promise to pay. (Byles on Bills [18th ed.], 126.)

Tbe judgment is affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs..


author: Follett, J.:

text:
    JEHIEL HYMES, Appellant, v. WILLIAM W. ESTY and EDWARD S. ESTY, Executors, etc., Respondents.

      Covenant of warranty— not violated by the existence of a right in the public to use a portion of the land as a street.

    This action was brought by the plaintiff to recover damages for a breach of a covenant of warranty, contained in a deed of conveyance of a lot of ground from the defendants’ testator to the plaintiff’s grantor. It appeared on the trial that upon the plaintiff’s attempting to inclose the whole of the lot ’ conveyed to him, an action was brought against him by the village in " which the lot was situated, in which it was decided that a part of the lot had, while owned by the defendants’ testator, been granted by him to the public for a street, and that the same had been accepted and used by the village authorities, and that a judgment was entered in that action enjoining and restraining the plaintiff from obstructing the street.

      Held, that as it was not claimed that the title to any portion of the lot had failed, but only that the village had opened to its full width a public street which had been laid out prior to the conveyance by the defendants’ testator, no breach of the covenant of warranty justifying a recovery of damages, was shown.
    Appeal from an order, setting aside a verdict in favor of tbe plaintiff and granting a motion for a new trial, made upon a case at a Special Term.
    May 1, 1869, defendants’ testator conveyed a lot in tbe village of Itbaca, with a covenant of warranty, to Byron A. Todd, wbo, on August 29, 1876, conveyed tbe lot witb a covenant of warranty to tbe plaintiff. In 1881 tbe plaintiff inclosed tbe whole lot, a part of wbicb tbe village of Itbaca claimed bad long been appropriated for a public street. An action was brought by tbe village against this plaintiff for a judgment restraining tbe plaintiff from inclosing or obstructing the street. Tbe plaintiff in this action (defendant in tbe one brought by tbe village) gave tbe defendants herein notice of the action brought by the village, and asked, them to defend it, but they did not. The plaintiff in this action answered, denying the existence of the street. The action was-tried at a Special Term, where it was found, as a fact, that prior to I860, the then owner of the lot dedicated a part of it to-the public for the purpose of a street, and that the village authorities accejited it, constructed, and for twenty-five years prior to-1881, maintained a public street on the land in dispute. Upon this finding a judgment was entered restraining the defendant in that-action (the plaintiff in this) from obstructing the street, and for costs. This action is brought on the covenant of warranty, for the-recovery of $250 damages for the eviction, and the expenses and for defending the former action. The case was tried before a jury and a verdict for $457.24 recovered. The defendants moved for a new trial on a case, which was granted at Special Term and an order entered, from which the plaintiff appeals.

      F. F. Tibbetts, for the appellant.

      Almy dk Bouton, for the respondents.
   Follett, J.:

It is not claimed that the title to any part of the land conveyed has failed, but that the village of Ithaca has opened to its legal width and worked a public street which had been laid out prior to-the conveyance by the defendants’ testator, using for this purpose a strip of the land conveyed about twelve feet in width. The existence of a public street or highway, legally, laid out and openly traveled, upon land conveyed with a covenant of warranty, does not, if the public have but an easement, amount to a breach of warranty. (Whitbeck v. Cook, 15 Johns, 483; Wilson v. Cochran, 46 Pa., 229.) If the soil of a street or highway is appropriated or used for other purposes, the owner may maintain trespass or ejectment against the intruder. (Goodtitle v. Alker, 1 Burr, 133; Cortelyou v. Van Brundt, 2 Johns., 357; Jackson v. Hathaway 15 id., 447.) In this 'State, opening a public street or highway to its legal width, or using it as a street, in not deemed a sufficient eviction to enable the owner to maintain an action against his grantor for the breach of a covenant of warranty. Whether the existence of a public street or highway, is a breach of a covenant against incumbrances, is a question upon which the decisions of the various States do not agree. (3 Wash. R. P. [4th ed.J, 460, 462.)

The sole foundation of this action is the judgment in the case of -the village of Ithaca against this plaintiff, the' judgmeniroll in -which case was introduced in evidence by the plaintiff, by which it ■appears that the land from which the plaintiff claims to have been evicted, was a legal public street at the date of the grant of defendants’ testator to Todd, and also at the date of the grant of Todd to ■the plaintiff. The plaintiff cannot use this judgment as a verity so far as it tends to establish his cause of action, and then turn and treat it as a falsity, subject to be contradicted and overthrown by oral ■evidence in so far as the findings upon which it rests are found unfavorable. The judgment-roll which the plaintiff invokes to establish his cause of action, destroys it.

The order granting a new trial is affirmed, with costs to abide the event.

Hardin, P. J., concurred; Poardman, J., not voting.

•Order granting new trial affirmed, with costs to abide the event.


text:
    EMILY HALSTEAD, Respondent, v. EDWARD B. NELSON, Appellant.

      Slander — what cha/rge is slanderous per se — privileged communications — right of the principal of an institution to lay evidence, bearing on the immoral conduct of a teacher, before the board of trustees.

    On February nineteenth, the defendant, the principal of an institution for deaf mutes, complained to the executive committee of the board of trustees of tho institution, that the plaintiff, a teacher therein, had mailed to the defendant’s wife a printed paper, recommending and advertising articles for the prevention of conception and for procuring abortions, and stating where the articles could be purchased. The principal was appointed by the board of trustees, and was the executive head of the institution, having power to hire and dismiss employees, subject to the control of the hoard. The plaintiff claimed that when she appeared before the committee the defendant said, among •other things, that he “knew” that tlie plaintiff wrote and sent the letter. This was denied by the defendant. The plaintiff having been dismissed from the institution, brought this action against the defendant to recover the damages thereby occasioned, claiming that he himself wrote and posted the letter.

      Held, that the offense charged was an indictable offense, involved moral turpitude, and was slanderous per se.

    That it was the duty of the defendant, as principal of the institution, to lay before the trastees the evidence in his possession bearing upon the question as to whether or not the plaintiff committed the.offense charged; and that the communication made by him was privileged.
    The court was asked to hold that the accusation was prima fade privileged,'and absolutely so, unless the plaintiff established that it was made without probable cause, and in bad faith or maliciously. The court refused, and charged that “if he did on that occasion unnecessarily interfere and assert what was not true, that it would be a publication, in effect, of this slander, a publication which would be unjustifiable under any circumstances of the case.”

      Held, that the court erred in so charging, as the evidence did not justify an inference that the defendant unnecessarily interfered.
    Appeal by the defendant from a judgment, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried*
    January 19, 1878, some person mailed do defendant’s wife a printed paper recommending and advertising articles for the prevention of conception and for procuring abortions, and stating where the articles could be purchased. A few recommendatory words were written in pencil on Dhe paper, and the written and printed matter was signed in pencil, “ a lady friend.”
    The complaint contains three counts: The first charges that the defendant, January 19, 1878, at Koine, New York, falsely and maliciously stated in the presence and hearing of B. J. Beach and others, that the plaintiff mailed the obscene matter to defendant’s wife. The second count charges that the defendant, on divers days between January 19, 1878, and May 6, 1S78, at Koine, New York, exhibited the obscene matter to divers persons and falsely and-maliciously stated to them that plaintiff mailed it to defendant’s wife. The third count alleges that the defendant, March 25, 1878,. at Borne, New York, and at divers places in Oneida county, New York, falsely and maliciously stated to Mrs. T. M. Davis that the plaintiff mailed the obscene matter to defendant’s wife; and also that the defendant, on the same occasion, falsely and maliciously stated to Mrs. Davis that the plaintiff had been guilty of unchaste conduct with men.

      The complaint alleges that, by reason of the words spoken and set forth in the first and second counts, she lost a lucrative situation in the Central New York Institution for Deaf Mutes at. Nome, New York.
    The answer contains (1) a general denial; (2) an allegation that all of defendant’s acts and statements in connection with the matter were made in good faith, upon probable cause, upon an occasion and to persons which rendered the acts and statements privileged; (3) mitigatory allegations.
    The case shows that the Central New York Institution for Deaf Mutes is a corporation, but when incorporated, or under what law, does not appear. The public statutes of the State show it to be one of the charitable and educational institutions of the State, for the support of which public moneys have been annually appropriated since 1864. (Chap. 213, Laws 1875; chap. 13, Laws 1876, and the annual appropriation acts from 1875 to 1884, inclusive.)
    The defendant is, and, since 1876, has been the principal of the institution, and the plaintiff from November 2, 1875, to February 19, 1878 (when she was discharged by the executive committee), was employed in the institution as superintendent of the sewing department.
    The affaire of the institution are managed by a board of fifteen trustees, five of whom constitute the executive committee, which exercises the powers of the board when it is not in session. The board of trustees appoints the principal, who is the executive head of the institution, having charge of its internal affairs, with power to hire and dismiss employees, subject, however, to the control of the board. The plaintiff received her appointment from the board of trustees.
    Upon the trial the plaintiff gave no evidence tending to establish the second or third cause of action.
    To establish the first she testified that February 19, 1879, she was notified to appear at the office of the institution, where she found Mr. Huntington, Mr. Beach, Mr. Bissell (three of the executive committee), and the defendant, and that Mr. Beach then said to Mr. Nelson : “ You received this letter about seven o’clock, did you not, Mr. Nelson ? ” Mr. Nelson said : “ Yes ; it was a dirty, obscene letter, which had cost himself and wife much pain under the circumstances, and he knew I (plaintiff) wrote and sent it.” No other witness testifies to the speaking of these words. At this time the three members of the executive committee met for the purpose of considering whether the plaintiff sent the paper, and whether she should be discharged from her position. The result was that after considering the evidence and hearing her explanation, she was on that day discharged. The defendant testified that he did not speak the words. Mr. Beach testified that the defendant did not make the charge, or anything like it, in substance. Mr. Bissell testified that the defendant did not say, on that occasion, that he knew plaintiff wrote it, or that it gave his wife great pain, and that defendant said nothing of the kind. Mr. Huntington testified that he had no recollection of defendant’s saying anything while the plaintiff was present. Mr. McHarg, one of the trustees, was present during a portion of the meeting, and testified: “ I do not recollect whether Prof. Nelson said anything at that meeting in my presence.’,’
    Mrs. Butcher (formerly Mrs. Davis) testified that on some occasion, the time not fixed, she had a conversation with defendant in a railroad car between Borne and Oneida, in which the following language was used: Witness : “ I said I could not believe that Mrs. Halstead sent the letter in question, and Mr. Nelson said: Why, Mrs. Davis, I am positive of it, and I have proof of it that I will show you sometime when you visit the institution.” The defendant denied the conversation. The case shows that this evidence was not offered to establish either of the three causes of action, but for the purpose of showing a repetition of the accusation, as evidence of malice, and to enhance the damages. Both counsel, in their briefs, concede that the only accusation alleged and proved as a cause of action is the one made before the executive committee.
    The. plaintiff had a verdict for $1,200, which the defendant moved, upon the minutes, to set aside upon the exceptions taken, ’ because the verdict was for excessive damages, was contrary to the evidence, and contrary to law. The motion was denied and a judgment entered, from which, and the order, the defendant appeals.

      Francis Fernán, for the appellant.

      W. E. Scripture, for the respondent.
   Follett, J.:

Mailing a circular of tbe kind described in tbe statement of facts ■was, in 1878, an indictable misdemeanor by the laws of this State (chap. 717, § 2, Laws 1872, since made a part of the Penal Code, §§ 318, 319), and by the laws of the United States (U. S. P. S. [2d ed.], § 3893). Charging a person with the commission of an indictable offense involving moral turpitude, is slander per se. (Young v. Miller, 3 Hill, 21; Towns. Sl. and Lib., § 154; Folkard’s Starkie on Sland. and Libel, chap. 2, § 14.)

We think it cannot be questioned that the commission of the offense charged involves moral turpitude. Aside from the denial that the words were spoken, the defense rests on the theory that the occasion upon which the words are alleged to have been spoken, ■as well as the words spoken, were prima facie privileged, and that the plaintiff, to recover, must establish that the accusation was made without probable cause, and in bad faith or maliciously.

It was the duty of the defendant, as principal of the institution, to lay before the trustees the evidence in his possession bearing upon the question as to whether the plaintiff did or did not commit the offense; -and it was the duty of the trustees to examine the evidence and determine whether she should be continued in the employ of the institution. For the purpose of making this investigation and determination, three of the executive committee met .at the office of the institution. The plaintiff and defendant were both before the committee, the evidence was examined and the plaintiff’s statement considered. During this investigation it is alleged that defendant said “he knew I (plaintiff) wrote and ■sent it.”

Persons vested with the control of public institutions created by law, and having quasi judicial duties to discharge in respect to the public, are, while acting within the limits of their functions, prima facie exempt from liability for publications which would otherwise be defamatory. (Bigelow on Torts, 60; Van Wyck v. Aspinwall, 17 N. Y., 190; Viele v. Gray, 10 Abb., 1; S. C., 18 How., 550; Towns. Sl. and Lib. [3d ed.], § 235 to 239.) The defendant was vested with the control of this institution and its employees, subject to the ultimate decision- of the board of trustees or its executive ■committee; and is within the class of persons whose communications, made to his superior in the discharge of a duty, are primen facie privileged.

The by-laws of the institution provide: The executive committee shall hold a meeting at the institution on the last day of each month, except when that day falls on Sunday, when it shall be held on the day following.” The fact that the meeting of the executive committee was not held on a day fixed by the by-laws did not render the occasion an unprivileged one. There is nothing in the by-laws prohibiting a meeting on any other day; and it would be a strange limitation of the powers of the governing body to hold that, however pressing an emergency might arise, that action must be delayed until the day appointed, and in the meantime, perhaps for a month, the affairs of the institution left to suffer. The ■trial court held, in effect, and properly, that the occasion was prima facie privileged.

The court was asked to hold that the accusation was prima facie privileged, and absolutely so, unless the plaintiff established that it was made without probable cause, and in bad faith or maliciously. This the court declined, and charged: “ I say that if he did on that occasion unnecessarily interfere and assert what was not true, that it would be a publication, in effect, of this slander, a publication which would be unjustifiable under any circumstances of the case.”' This was excepted to, and was error. The evidence did not justify an inference that the defendant unnecessarily interfered. He was-rightfully present, as an officer of the institution, and had the-undoubted right to express his belief, which cannot be properly characterized as an unnecessary interference, or left to the jury to infer that it was; and for this expression of belief he is not .liable if he had probable cause for entertaining it.

The fact (if it was a fact) that defendant said “ that he lenew I (plaintiff) wrote and sent it,” does not make the accusation absolutely an unprivileged one. The defendant could not have been understood to assert that he knew, of his own personal knowledge,, that defendant sent it, apart from the evidence before the executive-committee, but he must have been understood to mean that he knew, or believed from the evidence then presented, that she sent it. At least, it was error to charge, as matter of law, that defendant, by using the word “ knew,” intended to assert that he “ knew ” of his personal knowledge, apart from the evidence, that she sent it; and further, that if the jury found that the assertiou was made, and that in fact she did not send it, the defendant was liable; or, in the language of the charge, “ privileged communications extend no farther than it is reasonably necessary for the enforcement of the interests of justice or the protection of the rights of the community; and, therefore, I say that if he did on that occasion unnecessarily interfere and assert what was not true, that it would be a publication, in effect, of this slander, a publication which would be unjustifiable under any of the circumstances of the case.”

In Viele v. Gray (supra), the language was : He is the author of it (an obscene libel); I know it.” And it was said upon demurrer, that if the defendant had probable cause for making the charge, it was privileged.

When persons are so circumstanced that it is their right and duty to lay before a governing body of a public institution, rightfully acting in a quasi judicial capacity, accusations relating to the conduct and affecting the reputation of an employe amenable to the governing body, they do not lose immunity from liability by reason of general ill-will entertained by the accuser against the accused. If the specific act is an actionable wrong, the accuser is liable, but not without. General ill-will is not actionable, though sometimes evidence of it is admissible to enable a jury to infer that a specific act was prompted by malice. (Howard v. Sexton, 1 N. Y., 157, 161.)

When the accusation relates to a subject in relation to which the accuser has a duty to perform, and is made to a board of officers whose right and duty it is to act upon the accusation, the accuser is not liable if he had probable cause for making the accusation. (O'Donaghue v. McGovern, 23 Wend., 26; Viele v. Gray, 10 Abb., 1; S. C., 18 How., 550; Howard v. Thompson, 21 Wend., 319; Streety v. Wood, 15 Barb., 105; Cook v. Hill, 3 Sandf., 311; Blake v. Pilfold, 1 M. & Rob., 198; Towns. Sl. and Lib. [3d ed.], §§ 235-to 239.) Actions to recover damages for accusations so made, are analogous to actions for malicious prosecution; and a want of probable cause must be shown. (See authorities last cited.)

The court was asked to charge that if the defendant did not write, send or procure to be written or sent the communication, the plaintiff was not entitled to recover, which was refused and excepted to. The accusation was made on the communication, tiio circumstances under which it was received and upon the report of the expert in handwriting. The plaintiff was present, had made her denial and charged that the defendant mailed it to injure her. There was no conflict between' witnesses. The evidence upon which the accusation was made was before the court and uncontradicted. When the facts and circumstances on which an accusation is made are undisputed, the question of probable cause is a question of law for the court. The plaintiff’s theory was, that •defendant sent or procured the communication to be sent for the purpose of accusing the plaintiff and procuring her discharge, and unless this theory was established as a question of fact, the defendant was entitled to a verdict. Unless the defendant sent or procured this communication to be sent, we think the defendant had probable ■cause for the accusation. This was the judgment of the executive committee, who must be presumed to have been fair-minded men •of intelligence, desiring to discharge their duties to the public and persons interested. Probable cause has been defined to be : “ The ■existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.” (Wheeler v. Nesbitt, 24 How. [U. S.], 544; Mitchell v. Wall, 111 Mass., 492; Carl v. Ayers, 53 N. Y., 14.)

The judgment and order should be reversed, and a new trial ■granted, costs to abide the event.

Hardin, P. J., and Boardman, J., concurred.

So ordered.


text:
    MARY ANN COAKLEY, as General Guardian of SARAH MAHAR, Respondent, v. JAMES MAHAR, Appellant.

      General guardian — Tie may collect and, sue for Ms ward’s share of rent collected from premises owned i/n pcmi by Ms ward — one tenant in common is not liable for the cost of an improvement made by his co-tenant, without his assent.

    This action was brought by the plaintiff, as general guardian of one Sarah Mahar, to recover one-half of the rent of certain premises owned by the said Sarah and the defendant as tenants in common, the rents of the whole property having been collected and received Dy the defendant.

      Held, that the plaintiff, as general guardian, was authorized to maintain the action.
    That the defendant was not entitled to have the cost of improvements, which were made by him without the assent of his co-tenant, allowed in reduction of the amount due from him for the rent collected by him.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      JR. O. cís J. Q. Jones, for the appellant.

      Edward Lewis, for the respondent.
   Eollett, J.:

This is an appeal. from a judgment, entered on a verdict for sixty-nine dollars and eight cents, recovered at the Oneida Circuit. The pleadings . admit that Sarah Mahar and defendant are tenants in common, each owning an undivided half of No. 26 Jason street, Utica, and that Mary A. Coakley is the general guardi'an of Sarah Mahar. The premises were rented to tenants by defendant with the consent of the general guardian at a monthly rental. For a time the rent was paid equally to the parties, each collecting an alternate month’s rent; but after-wards the defendant collected during several months the whole of the rent. The plaintiff sues to recover half of the rent. The defendant defends on the ground that the plaintiff as general guardian has no cause of action, and alleges by way of counter-claim that he has expended for taxes, improvements and repairs more than the amount of rent received.

The general guardian of an infant is answerable for and entitled to receive the issues and profits of the land of the ward. (2 R. S., 153, § 20.) He has power to lease the land. (Field v. Schieffelin, 7 Johns. Ch., 150, 154; Thacker v. Henderson, 63 Barb., 271; 3 Wait’s A. and D., 553.) The guardian can maintain an action for the rents. (Pond v. Curtiss, 7 Wend, 45; White v. Parker, 8 Barb., 48, 52.) The powers of a guardian are commensurate with his duties. (Chapman v. Tibbits, 33 N. Y., 289.) Section 1666 of the Code of Civil Procedure has no application to this case. That and the cognate sections relate to real actions.” This is a personal action. It is an action in debt, not for the recovery of rent as such, but for the recovery of money had and received by the defendant, which belongs to the ward of the plaintiff, and for which the guardian may sue. (Thomas v. Bennett, 56 Barb., 197; Hauenstein v. Kull, 59 How., 24; Simpson’s Law of Infts., 212.)

The evidence shows that by custom one-half of the rent was to be paid to each party. Defendant testified : For' a time I. came around when my month’s rent was due; I went and got it every other month.” The defendant’s evidence clearly shows that there was an understanding that each party should receive one-half of the rent.

The action was well brought. It is well settled in this State that a tenant in common cannot recover from a co-tenant the expense of improvements made, unless the co-tenant, assented to the improvements. (Scott v. Guernsey, 60 Barb., 163; affd. 48 N. Y., 106; Ford v. Knapp, 31 Hun, 522.) The defendant could not counterclaim the expense of improvements made without plaintiff’s assent. The court directed the jury to allow the defendant for one-half of the taxes paid and for one-half of the expense of such repairs as they found were necessarily made; and to return a verdict for the plaintiff for the remainder. The defendant has no cause to complain of this direction. None of the exceptions to the admissibility of evidence are important, and they require no consideration.

This case is simply the stenographer’s minutes printed, which is in direct violation of Rule 34 of the Supreme Court, and many decisions thereunder. It is evident that the minutes were not examined before the case was printed, or tbe proofs of the printer read and corrected. The dates are confused, some of them absent, and it is impossible to determine with certainty whether some of the transactions occurred in 1880, 1881 or 1882. The complaint, as printed, appears to have been verified September 23,1883, nearly a year later than the answer and reply. The appellant’s brief states that the action was begun in 1884. The court can correct these errors and variances, but it is the duty of counsel to see that eases are correctly made up and printed accurately. The notice of appeal is from an order denying a new trial, as well as from the judgment. No order denying a new trial is contained in the appeal book. It appears by the appeal book that a motion for a new trial was made on the judge’s minutes and denied, to which the defendant excepted. An order must he in writing. (Code Civ. Pro., § 767.)- A formal order duly entered is the only competent evidence of the determination of such á motion. The statement that a motion was made and denied, and an exception taken, is not equivalent to an order, and the statement and exception present no •question for review. (Ehrman v. Rothschild, 23 Hun, 273; Matthews v. Meyberg, 63 N. Y., 656.) The grounds upon which the motion for a new trial on the judge’s minutes was made do not appear in the appeal book, and for that reason the errors of the jury, if any, are not before this court. (Hinman v. Stillwell, 34 Hun, 178.)

The judgment should be affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


author: Pollett, J. :

text:
    FRANCES CORNISH, Respondent, v. SARAH GRAFF, Appellant.

      —t>hen errors of fact cure not reviewable on appeal — when the case should be ordered to be 'annexed to the judgment-roll — ■right of the court to further instruct the jury in the absence of counsel — evidence of actual value admissible as bearing-on the probable truth of conflicting claims as to an agreed price.

    Where upon an appeal from a judgment, entered upon the verdict of a jury, and. from an order denying a new trial, it does not appear that the case contains all of the evidence, questions of fact, or errors of the jury, cannot he considered.
    When a case is settled and filed, after entry of judgment, the judge, referee or court should make an order directing the case to be annexed to the judgment-roll.
    After the jury had retired the defendant’s counsel left the court-room. Ilefor® the adjournment for the day the jury applied for further instruction. An. officer was sent for the defendant’s counsel, but he could not be found. Thereupon, the court, in his absence, further instructed the jury.

      Meld, no error; that there is no statute or rule of practice in this State which prohibits the court in Civil cases from instructing the jury in the absence of counsel.
    It is the duty of counsel engaged in the trial of a case to remain in, or be represented at the court during its sessions until the jury having the case in charge is discharged; and the failure of the counsel to perform his duty in this-respect does not deprive the court of its power to give such further instruction to the jury as may be necessary and proper.
    . Any abuse of this power can be corrected on a motion for a new trial.
    In an action to recover the value of personal services, where the complaint alleges that an agreed price was to be paid therefor, and that they were worth, that price, and the issue is what was the agreed price, evidence of the value of the services is competent, as bearing upon the probable truth of the claims of the respective parties.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made on a case and exceptions, and from an order granting a motion to resettle a case.
    This action was brought to recover for services as a nnrse performed between September 1,1880, and October 19,1881. The complaint contains but a single count, in which it is alleged that the services were reasonably worth ten dollars per week, amounting in the whole to $500, and that defendant agreed to pay said sum. It is admitted in the complaint that $286.44 has been paid. The answer alleges: (10 A general denial. (2.) That defendant is a married woman and living with her husband. (3.) That the services were rendered at the agreed price of five dollars per week, and that plaintiff has been fully paid. The plaintiff had a verdict for $319.06.
    It appears from an opinion printed in the appeal book, that a motion for a new trial on the judge’s minutes was .made and denied.But it is not shown by the judgment-roll, or the case annexed, that such a motion was made or determined. No order determining such a motion appears..
    It appears from the notice of appeal, but not from the judgment as printed, that January 26, 1884, a judgment was entered on the verdict. The judgment-roll does not contain the clerks’ minutes of trial, and .it does not appear whether any direction in respect to a ease was made at the circuit.
    It appears by the case and affidavits annexed, that after the jury-retired defendant’s counsel left the court. Before the adjournment of the court for the day, the jury applied for further instruction. An officer was sent for the defendant’s counsel, but he could not be found, and thereupon, in the absence of defendant’s counsel, the court further instructed the jury. The next morning the jury brought in a sealed verdict. The case, as settled, contained an exception by which the right of the court to further instruct the jury in the absence of counsel was challenged, and the substance of the instruction was also excepted to. Both exceptions were taken after the jury had rendered its verdict. These exceptions were allowed by the trial judge, who settled the case December 20, 1884, and ordered it filed, but did not order it annexed to the judgment-roll. Afterwards, upon the plaintiff’s motion made at a Special Term held by another justice, the exceptions were stricken Out upon the ground that under section 995, Code of Civil Procedure, they could not be taken after the jury had rendered its verdict. After the case was thus resettled, a motion was made on it at Special Term for a new trial, which was denied, and an order entered. The defendant appeals : (1.) Prom the judgment. (2.) Prom the order denying a new trial. (3.) Prom the order striking out the two exceptions.

      Isaac D. Garfield, for the appellant.

      Hancock do Mnnro, for the respondent.
   Pollett, J. :

It does not appear that the ease contains all of the evidence, and for this reason the questions of fact, or errors of the jury, if any, •cannot be considered. An appeal from a judgment brings up for review only questions of law which are contained in the judgment-roll. Section 1237 of the Code of Civil Procedure provides that a case settled and on file at the time the judgment is entered shall form a part of the judgment-roll. When a case is settled and filed .after the entry of judgment, the judge, referee or court should ■order the case annexed to the judgment-roll. (McNish v. Bowers, 30 Hun, 214.) When a case is so annexed and becomes a pant of ■the judgment-roll, and is duly certified by the clerk, the appellate courts have an authenticated record on which to found their judgments. In the case at bar no order was made at the Circuit directing a case to be annexed to the judgment-roll after entry, and none was made by the judge who settled the case. The reason for a motion for a new trial on a case at Special Term, after a like motion on the judge’s minutes had been denied, is not apparent. Both parties desiring a determination of this case on the merits, we will decide it; but it must not be regarded as sanctioning this practice.

The facts in respect to the instruction given by the court in the absence of defendant’s counsel appearing in the case and being undisputed, the appeal from the order striking out the exceptions to these instructions need not be specially considered, for if the court had not the right to instruct the jury in the absence of defendant’s counsel the point is available without an exception. If the court had the right, but abused it, the point is available on a motion for a new trial, which has been made on a case, and the appeal from the order denying a new trial brings the question before this court. (The Watertown Bank and Loan Co. v. Mix, 51 N. Y., 558.)

The trial of a case is not concluded until the jury is discharged from its consideration. (Code Civ. Pro., § 992.) The power of the court to re-call and re-instruct the jury has never been judicially doubted in this State. Counsel by purposely or inadvertently withdrawing from the court cannot take away the power, or suspend the right to exercise it until they can be found and brought in, if willing to come. It is tlie duty of counsel engaged in the trial of a case to remain in or be represented at the court during its sessions until the jury having the case in charge is discharged. (Dauntley v. Hyde, 6 Jurist [Exch.], 133.) The failure of counsel to perform their duty does not deprive the court of its power to discharge its duty. The court is not required to send out its officers to invite counsel to attend to their duties and hear additional instructions which the court proposes to give to the jury. Undoubtedly, in most cases, courts will endeavor, as a matter of courtesy, to secure the attendance of counsel before re-instructing a jury, hut it is not error if it is -not done. (Wiggins v. Downer, 67 How., 65; affd. Gen. Term, Fourth Dept., Oct. 1884; Cook v. Green, 1 Hals., 109; Chapman v. Chicago, etc., R. R. Co., 26 Wis., 295; S. C., 7 Am. R., 81.) The last case cited is precisely in point, is well considered, and clearly states the law and practice applicable to this question. Burke v. Webb (2 N. Y. Wk. Dig., 579) is imperfectly reported, as will be seen by reference to the record .and the opinion. The plaintiff, in that case, hired to defendant for a year, but was discharged without cause, as the plain•tiff alleged, who sued for his wages for a year. The defendant alleged that he had sufficient cause for discharging the plaintiff. The jury, in the absence of the plaintiff’s counsel, asked the court whether the plaintiff could recover for the services he had rendered in another action, if they found for the defendant ? The court said yes. The jury retired, and shortly returned a verdict of no cause of action. Soon after the plaintiff’s counsel came in, and ■the court allowed an exception to the instruction and granted a new ■trial upon the minutes. The defendant appealed, and the order .granting a new trial was affirmed, upon the ground that the instruction was erroneous ; and it was said that if an erroneous instruction be given in the absence of counsel which injures the unrepresented party, it is ground for a new trial. The decision was placed on the ground that the instruction was erroneous, and it was not said, or intimated, that giving a proper instruction in the absence of the counsel for the defeated party was error, or a cause for a new trial.

Bunn v. Croul (10 Johns., 239); Taylor v. Betsford (13 Johns., 487), and Moody v. Pomeroy (4 Denio, 115), all arose in justices’ courts, and in those cases the magistrate entered the jury room and instructed the jury in the absence of counsel. People v. Cassiano (30 Han, 388), arose under section 427 of the Code of Criminal Procedure, which provides that notice of the court's intention to give additional instructions to the jury must be given to the district attorney and to the defendant’s counsel. The cases in California (Redman v. Gulnac, 5 Cal., 148; People v. Trim, 37 id., 274), arose under statutes providing that in civil cases further instructions “must be given in the presence of or after notice to the: parties or counsel” (Cal. Civ. Proc., § 10614), and in criminal cases, after notice “given to the defendant and his counsel.” (Grim.. Prac. Act, § 408.) This provision having been found to be inconvenient, it is now provided in criminal eases that additional instructions “ must be given in the presence of or after notice to the district attorney, and the defendant or his counsel, or after they have been called.” (Penal Code, § 1138.) The cases in Ohio (Campbell v. Beckett, 8 Ohio St., 211; Kirk v. The State, 14 Ohio R., 511), arose under a statute providing that additional instructions shall only be given “ in the presence of or after notice to the parties or their counsel.” • (Code, § 270.) There is no statute or rule of practice-in this State which prohibits the court in civil cases from instructing the jury in the absence of counsel. The power to re-instruct a jury in the absence of counsel may, like other powers, be abused ;. and if it is, the wrong can be corrected on amotion for a new trial. But in this case there was no abuse; the additional instructions were given publicly, during a regular session of the court, and after a prolonged but unavailing search for the defendant’s counsel by the officers of the court under its direction.

In an action to recover the value of services, when the issue is, what was the agreed price (the complaint averring that the services-were worth the agreed price), evidence of the value of the services is competent, as bearing upon the probable truth of the claims of the respective parties. (Swain v. Cheney, 41 N. H., 232 ; Harrington v. Barker, 15 Gray, 538; Sturgis v. Hendricks, 51 N. Y., 635; Scott v. Lilienthal, 9 Bosw., 224; Abb. Trial Ev., 367, 368.) In Marsh v. Holbrook (3 Abb. Ct. App. Dec., 176), the defendant did not deny that the price for the services to be rendered was agreed upon, but having rendered the full performance of the services impossible by his own act, sought to reduce the recovery, by proving the actual value of the services rendered, and the case is not an authority upon the question now under consideration. The defendant was not injured by the additional instruction, that the plaintiff was entitled to recover the contract price, whatever the jury found it to be, and that the contract price was either live •dollars or ten dollars per week. This was the precise issue : the plaintiff swore that the contract price was ten dollars per week, •and the defendant swore that it was five dollars per week, and each party sought to strengthen her own testimony by collateral evidence bearing upon the probabilities, and neither claimed that a contract price was not agreed upon, and that the amount to be recovered was to be controlled by the value of the services.

The judgment and order should be affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

Judgment and order affirmed, with costs of .appeal from judgment only.


text:
    GEORGE B. SCOVILLE, as Receiver, etc., of JOEL A. HALLADAY, Appellant, v. BRONSON A. SHED and MARION SHED, Respondents, Impleaded, etc

      Judgment creditor's action — when maintainable after the judgment has ceased to be a lien upon real estate — Code of Civil Procedure, sea. 1871.
    March 9, 1870, one Halladay recovered a judgment against the defendant Bronson A. Shed, upon which an execution was issued and returned unsatisfied. January 8, 1878, a farm was conveyed to the wife of Bronson, the consideration therefor being, it was alleged, paid by Bronson, and the title being taken in her name to prevent his creditors from collecting their claims. In 1888 this action was brought by the plaintiff, who had been appointed a receiver of Halladay’s property March 8, 1880, to procure a judgment declaring that the husband owned, or had an interest in the farm, and to charge it with the payment of the plaintiff’s claim through a receiver to be appointed, with power to sell.

      Meld, that the court erred in dismissing the complaint upon the ground that the judgment had ceased to be a lien upon the real estate at the time the action was commenced; that the action was maintainable by the judgment creditor •■under sections 1871, et seq., of the Code of Civil Procedure.

      Appeal from a judgment in favor of the defendants, entered: upon the trial of this action by the court without a jury.
    March 9, 1870, Joel A. Halladay recovered a judgment against Bronson A. Shed and John N. Loehr for $642.42, upon which eighty-three dollars was collected in April, 1870. The remainder of the judgment is unpaid. Two executions have been returned unsatisfied upon the judgment. March 8,1880, the plaintiff in this action was appointed the receiver of the property of Joel A. Halladay, and the title to the judgment then became and has since-remained vested in the receiver. January 8, 1878, a farm was conveyed to Marion -Shed, the wife of Bronson A. Shed. It is alleged in the complaint that the farm was paid for by Bronson A. Shed (the judgment debtor), and the title taken in the name of the wife to prevent the husband’s creditors from collecting their claims. This action was begun January 29, 1883, to recover a judgment,, declaring that the judgment debtor owned, or had an interest in the-farm, and to charge it with the payment of the plaintiff’s claim through a receiver to be appointed, with power to sell. Upon the-trial, evidence was given tending to show that the farm was paid for in part by the husband. The court refused to determine whether the husband had paid for the farm in part, on the ground that the judgment having ceased to be alien on real estate, the action could not be maintained. A decision was signed and filed, to which the plaintiff excepted. Neither defendant pleaded the statute of limitations as a bar to the action. Judgment was entered dismissing the complaint, with costs, from which the plaintiff appeals.

      Waylcmd F. Ford, for the appellant.

      O'Brien, Emerson <& Ward, for the respondents.
   Follett, J.:

"When a debtor transfers to a fraudulent transferee the legal title-to property subject to sale on execution, a judgment creditor may disregard the conveyance, sell the property while in the hands of the fraudulent transferee under an execution, and if possession is-withheld from the purchaser, he may establish the fraudulent transfer and recover the property in ejectment or replevin. This is-the common-law remedy which has existed since the statute of IE Elizabeth, chapter 5. Instead of resorting to this legal remedy, a judgment creditor may maintain an action to set aside the fraudulent conveyance in aid of his execution, but if by lapse of time, or for any cause a sale cannot be had under the execution, such an action cannot be maintained. The early English cases and some of the-early cases in this State, held that a bill in equity could not be > maintained for the recovery of property, unless it was such as was-subject to sale under execution,-that equity followed the law, and that money, stocks, etc., were not enumerated in the statute above cited. This doctrine was exploded in Spader v. Davis (5 Johns. Ch., 280; affirmed Hadden v. Spader, 20 Johns. 554). Subsequently the doctrine of the case last cited was somewhat limited in Donovan v. Finn (Hopk., 59), which led to the enactment of the section of the Revised Statutes, which provided that a judgment creditor might file a bill in chancery against the judgment debtor and any other person, to compel the discovery of any property or thing in action belonging to the judgment debtor, or of any property, money or thing in action due or held in trust for him, whether the same might or might not have been originally taken in execution. (2 R. S., 173,174, §§ 38 and 39.) This provision of the Revised Statutes is continued by sections 1871 and 1873 of the Code of Civil Procedure, and when property is discovered it may be recovered. (2 R. S., 135, § 1; Id-, 137,, § 1.) The case at bar is not to set aside a conveyance in aid of the judgment. The judgment debtor never held the legal title to the farm, and, setting aside the deed to the wife, would not vest the title in the husband, or in any way aid the collection of the judgment by an execution. (Garfield v. Hatmaker, 15 N. Y., 475.) This action is brought under the sections of the Code above cited, to recover property paid for by the husband and held by the wife. Should it be established on the trial that this property was paid for by-the husband, in whole or in part, it, or his interest therein, could be applied in payment of the .plaintifi’s claim notwithstanding th& judgment never was a legal lien on the farm and notwithstanding the fact that more than ten years have elapsed since it was recovered. The court erred in refusing to determine the question of fact and in dismissing the complaint on the ground that the action cannot, be maintained because the judgment is not a lien on real estate.

The judgment should be reversed, and a new trial ordered, costs to abide the event.

Hardin, P. J., and Boardman, J., concurred.

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


text:
    THE SYRACUSE SAVINGS BANK, Respondent, v. GEORGE A. PORTER and Others, Respondents, and EMILY HOWLAND and Others, Appellants.

      Trust of real estate — when void for the reason that it is not authorised by the Revised Statutes — when a power to sell or mortgage is a power in trust and not a beneficial power.

    July 8,1876, Cornelia H. Burton conveyed premises then owned by her to Emily Howland, by a deed reciting a consideration of $8,500. July 15, 1876, Emily Howland executed a quit claim deed of the premises reciting a consideration of $5,000, running to “ Cornelia H. Burton * * * in trust for Anna G. Burton, Grace Burton and Burr Burton, with power to sell and convey or mortgage without the appointment of a guardian, of the second part,” and conveyed the same premises “ unto the said party of the second part and to their heirs and assigns forever,” “ to have and to hold the said described premises to said party of the second part, their heirs and assigns, to the sole and only proper benefit and behoof of the said party of the second part, their heirs and assigns forever.” There was no pecuniary consideration for either of the deeds, and the grantees in the second, other than Cornelia, were infants,

      jWeld, that the trust attempted to be created, not being authorized by the provision of the Revised Statutes, was void.
    That the title to the property vested in the infants.
    That the mother took a power in trust to sell or mortgage for their benefit, but not for her own.
    Appeal from a judgment, entered upon the trial of this action, by the court at Special Term.
    January 11, 1871, Cornelia H. Burton was the owner in fee of a house and lot in the city of Syracuse, and on that day she mortgaged it to the Syracuse Savings Bank to secure the payment of $1,000. January 21, 1871, the mortgage was duly recorded. July 8, 1876, Mrs. Burton conveyed the premises in fee to Emily Howland by a deed, which recited a consideration of $8,500. December 11, 1876, the deed was duly recorded. July 15, 1876, Emily Howland conveyed the house and lot to Cornelia H. Burton by a quit-claim deed, reciting a consideration of $5,000, 'which, was ■duly recorded June 18, 1878. The deed runs to “ Cornelia H. Burton * * * in trust for Anna G. Burton, Grace Burton and Burr Burton, with power to sell and convey or mortgage without the appointment of a guardian, of the second part.” The granting ■clause runs “ unto the said party of the second part and to their heirs and assigns forever.” The deed concludes, “ to have and to hold the said described premises to said party of the second part, their heirs and assigns, to the sole and only proper benefit and behoof of the said party of the second part their heirs and assigns forever.” The deed from Cornelia H. Burton to Emily Howland ■and the deed from Mrs. Howland to Mrs. Burton were executed without pecuniary consideration. Anna G. Burton, Grace Burton ■and Burr Burton are infants. April 4, 1878, Cornelia H. Burton mortgaged the house and lot to George A. Porter as collateral to another mortgage on other lands given by her and guaranteed by Porter. June 18, 1878, Cornelia H. Burton mortgaged the house .and lot to Holden Brothers and to the Delaware, Lackawanna and Western Railroad Company as collateral security for $347.07 owing by her husband to the mortgagees, and also as security for any indebtedness which she might contract to the parties of the second part.
    An action was brought for the foreclosure of the first mortgage, ■about the validity of which there w as no question. The complaint was an ordinary complaint in foreclosure. The subsequent mortgagees were made parties defendants, but have not answered in the action. •Cornelia H. Burton answered for herself, and, as trustee, that the subsequent mortgages and liens were binding only upon her interest and not upon the interests of the infants. The infants made a like answer by their guardian. The sole issue arises between the defendants in the action, pursuant to section 521 of the Code of Givil Procedure, and is, whether the infants or the mortgagees subsequent to the trust deed are entitled to the surplus. The ■Special Term held that the subsequent mortgagees were entitled to priority over the infants. The infants appealed.

      Hancock <& Munro, for the appellants.

      Louis Ma/rshall, for the Holdens and the railroad, respondents.

      Lharles Gr. Baldwin, for Porter and others, respondents.
   Follett, J.:

All of the parties to this action agree, and the trial court correctly held, that a trust, valid under the Revised Statutes, .was not created by the deed from Mrs. Howland to Mrs. Burton. The-infants contend that the title remained in Mrs. Howland, subject to the execution of the power by Mrs. Burton for the benefit of the infants, while the subsequent mortgagees contend that the title vested in the infants, subject to the execution of the power to sell. The trial court correctly held that the title vested in the infants.. The parties attempted to create an express trust for a purpose not authorized by the statute, and the title vested in the infants under the forty-ninth section of the article of the Revised Statutes,, entitled “ of uses and trusts.”

The mortgagees contend that the deed created a “beneficial power,” while the infants contend that it created a “ power in trust,” which is the only remaining question, and upon the decision of which this case turns. The power authorizes the alienation in fee to any alienee whatever, and it is a “general power.” (1 R. S., 732, §§ 77, 78.). A power is beneficial “ when no person other than the grantee has, by the terms of its creation, any interest in its execution.” (1 R. S., 732, § 79.) “ A general power is in trust,, when any person, or class of persons, other than the grantee of such power, is designated as entitled to the proceeds, or any portion of the proceeds, or other benefits to result from the alienation of the lands, according to the power. (1 R. S., 734, § 94.)

"We think that the deed vests the entire title in the infants, for their sole benefit, and that it confers no beneficial interest in the-land upon the mother, and that she has no pecuniary interest in the land, or in the execution of the jjower. (Hunnier v. Rogers, 55 Barb., 85; aff’d sub. nom. Kinnier v. Rogers, 42 N. Y., 531; 4 Kent’s Com., 318.) The words, “ with power to sell and convey or mortgage without the appointment of a guardian,” indicate an intention, in connection with the other language in the deed, to-vest the title in the infants, and enable the mother to transfer or incumber it for their benefit, without incurring the expense and trouble of an application to the court for leave to sell or mortgage, under the statute, through a special guardian.

The infants answered in this case, asserting their right to the surplus. The record does not disclose cross answers on the part of the mortgagees asserting their right to the surplus, or controverting the claim of the infants, but the case having been disposed of in the trial court upon the theory that an issue had been joined between the defendants under section 521 of the Code of Civil Procedure* we have determined this appeal without regard to the regularity of the record. The infants are entitled to the surplus after payment of the judgment of foreclosure and the expenses of a sale, if it goes to a sale.

The judgment is reversed so far as it affects the rights of the defendants in the surplus, and also so far as it awards the subsequent mortgagee’s costs out of the fund, and the infants are allowed one bill of costs on the trial and upon this appeal as against George A. Porter, Erastus F. Iiolden, Edwin R. Holden and the Delaware, Lackawanna and Western Railroad Company.

Hardin, P. J., and Boardman, J., concurred.

Judgment reversed so far as it affects the rights of the defendants to the surplus, and also so far as it awards the subsequent mortgagee’s costs out of the fund, and the guardian ad litem is allowed one bill of costs on the trial and upon this appeal as against George A. Porter, Erastus E. Holden, Edwin R. Holden and the Delaware, Lackawanna and Western Railroad Company, and judgment ordered that the surplus be paid to the guardian.


text:
    ROSELL H. MEAGLEY, LAMOTT BLANCHARD and JOHN A. MEAGLEY, Appellants, v. THE CITY OF BINGHAMTON and Others, Respondents.

      Practice — former adjudication — when a bar — when a joint denwrrer to a defense good as against two of three plaintiffs toill not be sustained.

    This action was brought to restrain the defendants from removing a bridge which crossed one of the public streets in the city of Binghamton, and united' two parcels of land which were owned by one of the plaintiffs and were occupied by the other two plaintiffs as his tenants. The defendants set up as. a defense, as to the t-wo tenants, that the city had brought an action against them in the Recorder’s Court of the city of Binghamton, to recover penalties for erecting this bridge, and had recovered a judgment therein for $200. ,

      Held, that a joint demurrer interposed by the plaintiffs should be overruled.
    That the matter pleaded was a bar as to the two tenants; and that the conclusive effect of the former adjudication was not diminished, as to them, by the fact that another person was joined as a plaintiff with them in this action.
    Appeal from, an order overruling a demurrer interposed to part -of the defendants’ answer, and from the judgment entered thereon.

      Ciarle c& Brown, for the appellants.

      Alexmider TJ. Wales, for the respondents.
   Follett, J.:

This action is to restrain the defendants from removing a bridge which spans State street (one of the public streets of the city of Binghamton) and unites two pieces of land owned by John A. Meagley and occupied by Rosell H. Meagley and Lamott Blanchard (under the firm name of Meagley & Blanchard) as tenants of John A. Meagley. The bridge was built by Meagley & Blanchard in 1882. As a second defense to the right of action of Meagley & Blanchard, it is alleged that the city brought an action against them in the Recorder’s Court, in the city of Binghamton, to recover penalties for the erection of this bridge over State street, and that May 25, 1882, a judgment was recovered for $200 in the .action. It is further alleged that Meagley & Blanchard appealed to the County Court of Broome county, where the action was retried and resulted in a verdict of $100 in favor of the city. This adjudication is pleaded as a bar to the right of action of Meagley & Blanchard, but not as to the right of action of John A. Meagley, the owner of the premises. The plaintiffs jointly demur to this defense, upon the ground that the facts alleged do not constitute a defense. The demurrer was overruled at Special Term, and an interlocutory judgment entered, from which the plaintiffs appeal.

The former adjudication not being pleaded as against John A. Meagley, it is unnecessary to consider the appellants’ first point, "that the judgment against John A. Meagley’s tenants is not a bar •against him. The only question is, whether the former adjudication against Meagley & Blanchard is a bar to their right to maintain this .action. The subject-matter in both actions is the same, to wit.: {1.) Whether State street is a legal street. (2.) Whether Meagley & Blanchard had a right to erect and maintain this bridge over it. It is alleged that these questions have been determined against them by the former adjudication. Were Meagley & Blanchard sole plaintiffs in this action, the cohclusiveness of the former adjudication would not be questioned. The fact that Meagiey & Blanchard have joined another person witli them as plaintiffs in this action, brought to retry their right to erect and maintain this bridge, does not render the former adjudication less conclusive as a bar to their right of recovery. (Van Slyck v. Newton, 10 Hun, 554.) In the case cited the plaintiffs held a chattel mortgage executed by one Stearns, who, afterwards, assigned his property tc Yan Slyck for the benefit of creditors. The vendors of part of the goods covered by the mortgage and assigned brought replevin against Stearns and Yan Slyck upon the ground that Stearns purchased the goods with a preconceived design not to pay for them, and recovered. Yan Slyck & Foote then sued the deputy sheriff for taking the goods upon the direction of the vendors upon the replevin process, and it was held that the former judgment was a bar as against Yan Slyck and evidence as against Foote, his copartner and coplaintiff. (Thompson v. Roberts, 24 How. [U. S.]. 233; Lawrence v. Hunt, 10 Wend., 80; Dows v. McMichael, 6 Paige, 139; Ehle v. Bingham, 7 Barb., 494.)

The demurrer was not well taken, and the judgment is affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


author: Boakdman, J.:

text:
    FANNY SPELLMAN, Appellant, v. PATRICK BANNIGAN, Respondent.

      Landlord — when he is not liable to a tenant for personal injuries sustained because of defects in the demised premises.

    The plaintiff hired a house from the defendant for a year, the defendant agreeing to put and keep it in good repair. There was a stairs leading from the first | floor to the cellar. The plaintiff used this frequently, from the time she took ; possession of the house in May until October, when, as she was coming up from ' the cellar, the stairs fell and the plaintiff sustained injuries, to recover dam- ' ages for which this action was brought. It was not shown that the defendant knew of any defect in the stairs, or that he had been requested to make any repairs to them.

      Held, that the action could not be maintained upon the ground of negligence or breach of covenant to repair.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee. ■ The action was brought to recover damages for injuries sustained by the plaintiff by the falling of a staircase, leading from the cellar to the first floor, in » building rented by her from the defendant.

      S. M. Lindsley, for the appellant.

      WilUam Kernam, and William, P. Quin, for the respondent.
   Boakdman, J.:

The facts are distinctly stated in the report of the referee. At the close of the plaintiff’s evidence she was nonsuited. The grounds upon which the motion for a nonsuit was made, appear in the case as settled, and it was granted upon the ground that a cause of action had not been shown by plaintiff against the defendant. It had not been shown that defendant was the owner of the premises, or that he knew of any defect in the stairs, which fell under the plaintiff, or that he had specifically promised to repair, fasten or do anything to such stairs, or that he had been requested to do so, or that plaintiff after using said stairs daily from May till October, had any knowledge of any defect therein.

The complaint sets out the leasing of the premises by defendant to plaintiff for oue year at eighteen dollars per month, and the agreement by defendant to put tbe bouse in good repair and keep it so during the term. It also chai'ges that defendant had knowledge of the defect in the stairs but refused to repair the same, although requested to do so. It also alleges that such defect existed at the time when the lease was made, to defendant’s knowledge, and yet he asserted said stairs were in a safe condition. There is a further charge in the complaint to the effect that defendant knew of the defect and yet represented the stairs to be sound and safe ; that plaintiff believed the same and used the stairs, relying on such statements of defendant, and that by reason of the negligence and wrong of the defendant she'was injured by the falling of the steps. The answer contains a general denial, except of plaintiff’s possession of the premises.

It is not quite clear whether the cause of action is founded on the breach of contract to repair and put in good condition, or for the negligence and wrong of defendant in putting the plaintiff in the possession of premises while in a dangerous condition, whereby she fell and was injured. If the action be for negligence it cannot be maintained, because there is no evidence that the defendant built the stairway and then left it in a dangerous condition, nor is there any evidence that defendant knew of the dangerous condition of the stairs, or could have acquired such knowledge in the ordinary and prudent conduct of his business. Unless he knew the stairs were unsafe to use, or from the facts and circumstances in the exercise of ordinary care and prudence he should have known of their dangerous condition, the defendant cannot be made liable as for a tort. (Wood’s Land, and Ten., p. 620; Henkel v. Murr, 31 Hun, 28.)

Can he be made liable for plaintiff’s injuries in an action for a breach of contract to put in repair? The case Flynn v. Hatton (43 How., 333, 348, 351) is directly in point, holding that no such liability arises out of the contract to lease and to repair. The contract to put or keep in repair does not contemplate personal injuries which may follow a breach of the contract and indirectly or remotely grow out of it. (Sedg. on Dam. [4th ed.], 216.) Such damages are accidental and remote. Nor would a landlord be liable to his tenant for a breach of his contract to repair unless he had notice of the necessity for such repair, and then only after a reasonable time for him to make such repair. (Wood’s Land, and Ten., §§ 377, 379; Moak’s Van Sant. Pl. [3d ed.], 364; Jaffe v. Harteau, 56 N. Y., 398.) It would be a very harsh rule to hold a landlord responsible for personal injuries to-his tenants by reason of some hidden defect in the building rented, of which neither thp landlord nor the tenant had any notice or suspicion, and of which the tenant had far the best means of knowledge. In the present case repairs were made in pursuance of the contract proved. If the condition of this stairway had been brought to the notice of the defendant, it would doubtless have been made safe by a few nails or otherwise. But we can see no just principle upon which the defendant can be made liable for an accident occurring by no fault of his and for reasons equally unknown to-both parties.

Many of the cases and authorities cited by the plaintiff show a knowledge in the landlord of the dangerous defect, a neglect after such notice to repair and a contract to repair. Such are the facts in Wood on Landlord and Tenant (p. 620); Scott v. Simons (54 N. H., 426); Eagle v. Swayze (2 Daly, 140); Johnson v. Dixon 1 id., 178); Cesar v. Karutz (60 N. Y., 229); Minor v. Sharon (112 Mass., 477). Most of them are actions of tort for the negligence of the landlord in leaving a dangerous thing or place in his-building known, or that should have been known, to him to be dangerous and unknown to his tenant, by reason whereof the tenants or third persons were injured. They are very different from the present case. The law applicable is entirely different from that which would arise upon breach of a contract for repairs»

We think the judgment is right and should be affirmed, with, costs.

Hardin, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


author: Boardman, J.:

text:
    JACOB W. MITCHELL, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Diversion of surf ace water — damages a/re recoverable by one on whose land it is discharged.

    The defendant, a railroad company, having, by the erection of an embankment at the mouth of a creek, prevented the surface 'water from passing below the railroad as it had formerly flowed, opened a ditch along the embankment upon its own land, and discharged the water to the south-east of the plaintiff's land. By the failure of the defendant to keep the ditch open, the water accumulated and flowed upon the plaintiff’s land.

      Held, that the defendant was liable for the damages thereby occasioned.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for injuries occasioned by the flooding of the plaintiff’s lands by water alleged to have been unlawfully diverted from its natural channel by the defendant.

      F. F. Babcock, for the appellant.

      8. 8. Tcn/lor, for the respondent.
   Boardman, J.:

It is open to doubt whether the learned judge at the circuit was correct in holding as a question of law that Dry Brook was not a natural stream or water course. (Vernum v. Wheeler, 35 Hun, 53, and cases cited; Wash, on Easm. [2d ed.], 436, *362, and cases there cited.) But that ruling is not before us for review on this appeal.

The evidence tends to show the following facts very briefly stated. The railroad company erected an embankment near the mouth of Dry Brook, whereby the surface waters were prevented from passing below the railroad, as they had before done. It then opened a ditch to carry said waters along the upper side of the railroad to the- south-east along the side of its track and on its own land, to a point below the plaintiff’s land, which was adjoining* Eor a series of years this ditch was kept open and the waters discharged through it without unnecessary injury to plaintiff. But after 1877 the defendant failed to keep open the ditch, whereby the water was accumulated in unusual quantities in a depression of the surface of the ground, and by reason thereof overflowed the plaintiff’s land, causing the injury for which this action is brought. This act resulted in carrying surface waters by a ditch, and by its failure to keep the ditch open discharging an unusual and unnatural ■quantity of water upon the plaintiff’s land.

The facts, being conceded to be as the proofs tended to show, bring the case within those decisions forbidding such interference with the flow of surface water to the detriment of others. Andrews, J., in Barkley v. Wilcox (86 N. Y., 147), says the owner of land may “get rid of it (surface water) in any way he can, provided •only that he does not cast it by drains or ditches upon the land of his •'ni.r'iooi' ” To the same effect is Noonan v. City of Albany (79 N. Y., 470); Jutte v. Hughes (67 id, 267); Vanderwiele v. Taylor (65 id., 341); Saal v. Abeles (20 Weekly Dig., 528).

The same principle applies to highway officers who stop up culverts and carry the surface water upon the upper side of a highway for some distance, and then through a culvert discharge the same in unnatural and unusual quantities upon the lower proprietor to his injury. (Moran v. McClearns, 63 Barb., 185.)

The jury has found that defendant has, by artificial channels, discharged an unnatural quantity of water upon the plaintiff’s land, by reason of its negligence in not keeping such channel open and conducting the water, as it had formerly done, away from the plaintiff upon its own land.

When a corporation or individual attempts by artificial means to interfere with the natural action of water to serve its or his own purposes, he must see to it that it shall be done in such a way as shall not unnecessarily do an injury to his neighbor.

Bor the reasons so well stated in the opinion of the judge below on the motion for a new trial, we think the submission to the jury was proper and its verdict is conclusive upon us. (See, also, 19 Am. Law Rev,, 291, and cases cited.)

The judgment and order are affirmed, with costs.

• Hardin, P. J., concurred; Bollett, J., not sitting.

Judgment and order affirmed, with costs.


author: Kennedy, J. :

text:
    LEONARD PIERCE, Respondent, v. CHARLES A. FULLER, Appellant.

      ■Judgment — a sale thereunder of land after the expiration of ten years does not affect the title of a purchaser in good faith — no covenants of title will be implied m the case of a conveyance of real estate by quit-elaim deed.

    Marcli 3,1879, the defendant conveyed to the plaintiff, by a quit-claim deed, a one-seventh interest in certain land situate in Madison county. On February 24, 1871, k judgment had been recovered against the defendant’s grantor, which was on March third docketed in Chenango county, and on March 9,1871, a transcript thereof was docketed in Madison county. The existence of this judgment was unknown to either the plaintiff or the defendant. January 10, 1881, an execution was issued upon this judgment in Madison county; and, March 8, 1881, after more than ten years had elapsed since the judgment was •docketed in Chenango county, the interest which the defendant’s grantor had in the real estate conveyed to the plaintiff was sold thereunder. The plaintiff having tendered a reconveyance of the property, brought this action to recover the amount he had paid to the defendant.

      JSeld, that the action could not be maintained, for the reason that as the plaintiff was a purchaser in good faith, without notice, the sale under the judgment was inoperative as to him.
    'That even if he were injuriously affected by the sale, he could not recover, as there were no covenants in his deed, and none would be implied by law.
    Appeal from a judgment in favor of the plaintiff, entered upon the decision of the court rendered upon the trial of this action in the County Court of Madison county, without a jury.

      Charles A. Fuller, appellant in person.

      White <& Underhill, for the respondent.
   Kennedy, J. :

The action was originally brought in a Justice’s Court, where a recovery was had by the plaintiff. On an appeal and new trial in Madison County Court, the plaintiff again succeeded.

The action is brought to recover the sum of $100 and interest, the same being the amount paid to the defendant as the purchase-price of a one-seventh interest owned by him in a house and lot in Earl-ville, Madison county, and which interest on such purchase was conveyed to the plaintiff by quit-elaim deed without covenants. The claim of the plaintiff is, that the title which he supposed he acquired by the conveyance failed, and that such failure was occasioned by the existence of a judgment docketed in Madison county against tlte defendant’s grantor at the time he purchased and took his deed, and. that the existence of the judgment was unknown to both plaintiff and defendant at the time of the plaintiff’s purchase. No fraud on the part of the defendant is alleged. The action in the Gounty Court was heard before the court without a jury.

By the finding it appears that on the 3d day of March, 1879, the-defendant, then being the owner of one-seventh interest in a house- and lot in Earlville, Madison county, sold and conveyed the same by quit-claim deed without covenants. The defendant’s immediate-grantor was one Esquire Carpenter. On the 24th day of February, 1871, one Upham recovered a judgment against said Carpenter in Justices’ Court in the county of Chenango for $145.26. A transcript of this judgment was docketed in the office of the clerk of Chenango county March 3,1871, and in the Madison county clerk’s office on the 9th day of March, 1871.

On the 10th day of January, 1881, an execution was issued on said judgment by the clerk of Madison county, and the title which. Carpenter had in the premises, it being the defendant’s one-seventh, was sold, or claimed to have been sold, by the sheriff of Madison county. This sale was not made until after the expiration of ten years from the time said judgment was docketed in Chenango county. After said sale, and on the 14th day of March, 1881, the plaintiff tendered said deed back to the defendant and also a deed executed by himself and wife, and demanded the $100' he had paid. This was refused and this action was brought.

It is found by the referee, and is conceded on the argument, that the sale on the execution was made more than ten years after the docketing of the judgment, and that the lien of this judgment upon the lands of the debtor had expired. The plaintiff was a bona fide purchaser without notice of the existence of the judgment. The sale by the sheriff after the expiration of the lien of the judgment was inoperative to pass any title to the purchaser, and by it the rights of the plaintiff acquired under his deed from the defendant were in no manner effected or prejudiced. (Code, §§ 63 and 282; Code of Civil Procedure, § 1251; Little v. Harvey, 9 Wend., 157; Tufts v. Tufts, 18 id., 621; Scott v. Howard, 3 Barb., 319; Wood v. Morehouse, 45 N. Y., 377.) If right in this the plaintiff has lost nothing, and no right of action existed in him at the time of commencing this suit.

"We are also of the opinion that the plaintiff having contented himself with a quit-claim deed without covenants, there being no fraud on the part of the seller, cannot, by implication, engraft upon the conveyance an implied covenant of title unincumbered in the vendor, but must be regarded as having accepted the deed as it was and at his own risk. (3 R. S. [7th ed.], 2195, § 140; Whittemore v. Farrington, 76 N. Y., 452.)

Judgment is therefore reversed, with costs.

Hardin, P. J., and Follett, J., concurred.

Judgment reversed, with costs, and complaint dismissed, with -costs.