author: Cullen, J.

text:
    William H. Young et al., P’lffs, v. Roswell P. Flower and William T. Jenkins, Impl’d, Def’ts.

      (Supreme Court, Special Term, Suffolk, County,

      Filed February, 1893.)

    Health—Fibe Island—Powebs of Health officeb.
    While, under the statutes relating to local boards of health, it was competent for tlie board of health of the town of Islip to formulate an order prohibiting the landing of cholera patients on Fire Island, that right is subordinate to the major right vested in the health officer of the port of New York, under the act of 1892. In cases of emergency and in the presence of immediate danger the latter, who is a state officer, may, for temporary purposes, bring persons suspected of being affected with cholera into another county of the state.
    The plaintiffs as individual members, and as a local board of health of the town of Islip, bring this action purely for injunctive relief, and they pray “thatthe defendants * * * be enjoined from bringing to the Surf hotel * * * any person, baggage,
    clothing or any other thing the subject of quarantine, brought from any vessel or quarantine station or elsewhere, or any person, matter or thing infected or supposed to be likely to he infected with cholera, or from using said Surf hotel * * * for quarantine
    purposes.”
    A preliminary injunction was obtained on September 12,1892, from a single judge at special term, but was vacated by the gen-

      eral term on September 13, 1892, upon the ground that there was no power vested in a single judge to issue an injunction against a, state officer. Code, § 605.
    The defendant Flower is the governor of the state; the defendant Jenkins is the health officer of the port of New York.
    The plaintiffs founded their right to the relief demanded upon the supposition that, they, as the board of health of Suffolk county, had a right to legislate respecting matters affecting the public-health within their county, and particularly they claim that they had a right to make the order of September 1Ó, 1892, which, in-substance, forbids the landing of passengers from cholera infected ships arriving at the port of New York at Fire Island, which is within their jurisdiction; and, secondly, upon the theory that-quarantine must be exclusively maintained by such health officer “ in the lower bay of New York, not on Staten Island, not on-Coney Island and not on Long Island."
    On the 10th of September, 1892, the plaintiff board made the-order just referred to, and recited among other things that the-landing of such passengers would be dangerous to life and health and to the public health and safety within the town of Islip, and thereupon they formulated a resolution “ prohibiting such landing under a penalty of $100 for every passenger so landed, and authorized the chairman of the board to appoint fifty special-sanitary police with full power to prevent by all legal means such-landing.”
    The two theories upon which the plaintiffs predicate their right-to maintain this action were challenged by the defendants, and they justified their action bv the powers given by chap. 486, Laws of 1892.
    For the purpose of simplifying the trial, every fact deemed, necessary for the consideration of the court was agreed upon.

      Fishel & Reed ( George W. Wingate, of counsel), for pl’ffs; William H.Clark, counsel to the corporation ; Charles Blandy and E. J. Freedman, for def’ts.
   Cullen, J.

I think that the plaintiffs can maintain this action-if the defendants’ acts are without authority of law. The contention that plaintiffs’ power to guard against the introduction of contagious and infectious diseases is limited to the-isolation and control of infected persons or things after they come-within the town, but is insufficient to prevent the bringing of such persons or things within the town, proceeds on a very technical,, and to me unsound, interpretation of the statute. The order made by the plaintiffs was, therefore, as to its general character within the scope of their authority, and its validity must be tested by the powers conferred by statute on the defendant, the health officer of the port of New York.

That the general scheme of the quarantine law for the port of New York not only contemplates that the hospital structures, buildings and wharves for quarantine purposes shall be located only in the lower bay of New York, and not on the adjoining lands of Staten Island, Long Island or Coney Island, but forbids the acquisition of land as a site for such purposes in any other place, is not only clearly apparent from the statute itself, but was «expressly decided by this court in Seguine v. Schultz, 31 How. Pr., 398, Mr. Justice Barnard, presiding.

That decision would be controlling on me if I had any doubt .as to the proper construction of the law, but in that decision I •entirely concur. That the detention of persons who may have been subject to infection from contagious disease is a part of the ■quarantine system, to the same extent as the isolation and care of those actually ill with such disease, was also decided in the case •cited. The only proper authority for the detention of such persons is that it is a part of the quarantine. I am entirely clear that there is no power in the quarantine officers to locate any part of the permanent quarantine establishment within Suffolk county, but this view does not control the disposition of the pre» sent case.

By the existing law, chap. 486, Laws of 1892, the general administration of the quarantine establishment of the port of New York is vested in the health officer. By § 13, article 11, of the statute cited, it is provided that “he shall, in the presence of immediate danger, take the responsibility of applying such additional measures as "may be deemed indispensable for the protection of the public health.” I agree with the contention of the plaintiffs’ counsel that such a power granted in general terms must be exercised, first, within the territorial limits of the jurisdiction of such officers, and, second, that the emergency must actually exist, of which the officer is not to be the sole judge, and that the act done or power sought to be exercised must be fairly sind reasonably appropriate for the emergency that has arisen.

But the power existing by common law in even private individuals in the case of impending calamity from a pestilence or fire is great.. In Russell v. Mayor, 2 Denio, 474, it is said: “ The "best elementary writers lay down the principle, and adjudications have for centuries sustained, sanctioned and upheld it, that in case of actual necessity to prevent the spreading of afire, the ravages •of a pestilence or any other great public calamity, the private property of any individual may be lawfully destroyed for the relief, protection or safety of the many, without subjecting the actors to personal responsibility for the damages sustained.” In fact, there is no liability even in the public to indemnify the -owner of property for such destruction, except as created by statute. Mayor v. Lord, 17 Wend., 285. Legislation has now largely, if not wholly, removed this right from private individuals and intrusted it to public officers, and also provided for compensation from the public treasury, so that one may not suffer without indemnity for the relief of the many. I refer to the extent of the natural right of the community to show that the power, when entrusted to a public officer, should not be construed as limited by too narrow bounds.

It seems to me that an emergency had fairly occurred within the meaning of the statute. So many vessels had arrived from ports infected with cholera that the hospital accommodations of the quarantine establishment had become inadequate to receive people sick from the disease and those who had been exposed to danger. This is conceded by the agreed statement of facts. Persons who had been subjected to the influence of contagion had, therefore, to be either detained on the infected ships or other ships be obtained as a place for their detention, or it was necessary to land and isolate them at some other point than that provided by the-statute for permanent quarantine purposes. Certainly not only a regard for the lives and health of such passengers themselves, but regard for public health, required that such persons should not unnecessarily be longer subjected to the danger of contagion.

The question between vessels and a landing place was a fair-subject for the exercise of discretion by the health officer, and the statement of facts does not show that the officer had any vessels available for the purpose of floating hospitals or places of detention other than one steamboat. It seems to me that in the contingency that had actually arisen the health officer was justified in securing some appropriate site for the temporary landing and isolation of these passengers, and I cannot say that the site selected was inappropriate. Several sites were presented. Each, had advantages and each was subject to disadvantages, and it was for the health officer to determine which was preferable. If the hospitals of the quarantines should take fire, surely the health officer might land their occupants. Here the emergency was not so great or immediate as the one suggested, but still I think it was real and substantial.

All this proceeds on the theory that the health officer acted within his territorial jurisdiction, for an emergency as to a matter of public health occurring in one town or county would not, without legislative authority, authorize the local authorities to enter within the limits of another town or county. Otherwise I fear many localities would be disposed .to impose their hospitals- or pest houses upon their neighbors. In the case of People v. Platt, 117 N. Y., 159 ; 27 St. Rep., 149, the defendant was ousted from the office of commissioner of quarantine on the ground of his residence in the county of Tioga. The decision did not, however, proceed on the ground that the office was a local one, but because the office was statutory and it was within the power of the legislature to prescribe the conditions of eligibility to its en^joyment, the statute providing that such officers should be residents of the metropolitan police district.

In Ferguson v. Ross, 126 N. Y.; 459 ; 37 St. Rep., 836, it was decided that an act to prevent the deposit of carrion, dredged materials, etc., in New York bay and the North and East rivers, was not local, but general. In the opinion there delivered by Judge Andrews, it is said: “But are laws regulating quarantine in the port of New York or the landing of emigrants therein local in the same sense as laws relating to city courts or to a particular highway or street ? ■ The 8th section of the act of 1886 was-manifestly enacted for the protection of the harbor of New York in the interest of commerce and navigation. The citizens of New York city may possibly have a greater stake in the matter than citizens in other localities, but the destruction or serious impairment of the harbor of New York would directly affect the prosperity of the state. It would impair the revenues, imperil its system of river, canal and railroad transportation, and it is not too much to say that every industrial interest, agricultural or mechanical, would feel its blighting influence. A law having for its object the protection of navigation in the harbor of New York is, we think, general and not local. The act is limited territorially, but the subject is both public and general.”

I think that, under the principle thus declared, the health officer must be considered a state officer. This was the view entertained by the general term of this court when it vacated the preliminary injunction granted in this action. Hence, if, under the stress of exigency, the health officer could, in the disposition of persons suffering from disease or subject to contagion, go at all beyond the express area provided for that purpose by the statute, he could go to Suffolk county as well.as to any other portion of the state.

This view does not authorize the quarantine authorities to hold Fire Island as an annex to or for the overflow of the quarantine establishment of the port of New York. This would plainly be illegal under the existing statute. If the probability of the recurrence of the condition existing last fall can be foreseen, it is the duty of such authorities, under the existing law, to increase the local quarantine establishment so that it will meet the demands that may be imposed on it. But this litigation presents only the question of the right to land passengers at the particular time it was done in September last. For the reasons given, I think this act was in the power of the health officer, and the complaint should be dismissed.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Frank Chwatal, Pl'ff, v. George Schreiner, Def't.

      (Supreme Court, Special Term, New York County,

      Filed April 20, 1893.)

    Will—Meaning oe “issue.”
    The primary meaning of the word “issue” is descendants generally. In a will, however, the word is to be given such meaning as the court may, from other provisions of the will, find was intended to be given to it by the testator.
    This action was brought to recover the earnest money paid upon a contract to convey land on Ninetieth street, in the city of New York, upon the ground that the vendor was unable to give good title.
    William Rhinelander died September 9, 1825. He left a will dated in March, 1825, which provided, among other things, as follows :
    “ It is my will that the real estate situate in the city and county of New York, whereof I may die seized and possessed, shall be kept entire, and no part thereof sold during the natural lives of my children, and the natural life of the longest liver of them, and until the youngest person among such of the issue of my said children, or any of them, who shall be living at the death of such longest liver, or shall be born in due time afterwards, shall come to the age of twenty-one years. With this intent, and to effect such purpose, I do devise the said real estate to my executors, their heirs or assigns, as joint tenants for the said term in trust, to receive the rents, issues and profits thereof, and to apply the same in the following manner, viz.:
    “ First. Out of the said rents, issues and profits to discharge all •debts accruing from time to time against the said estate, etc., etc.
    “ Secondly. To apply annually five thousand dollars out of the said rents, issues ancl profits to the extinguishment of the principal of the debt owing by me at the time of my decease; and
    “ Lastly. The residue of the said rents, issues and profits to •distribute in equal parts among my children then living, and the lawful issue of such of my children as may be then dead leaving lawful issue, such issue to receive such share only as the parent •of such issue, if then living, would be entitled to receive, and •each of my children always to receive such share as such child would have been entitled to receive if all my children then dead, leaving lawful issue then living, had been living. And after the expiration of the term for which my said lands are above devised to my executor’s in trust, I do then devise the real estate whereof I may die seized or possessed in the city and county of New York 'to my lawful grandchildren and the lawful issue of such grandchildren, such grandchildren and their lawful issue to take said estate in like manner in every respect as if it had been the estate of the respective parents of such grandchildren as tenants in common and had descended to them and their lawful issue by inheritance.”
    The testator left a very large amount of real estate, including a large farm in the upper part of this city, between Eighty-sixth and Ninety-fourth streets, and left surviving seven children and ten grandchildren. William 0. Rhinelander proved the longest liver of his children, and died June 20, 1878. At that time all the grandchildren but one were living and of full age, and one grandchild had died, leaving one child surviving, who was of age.
    At the time of the death of William C. Rhinelander, nineteen ■grandchildren of William Rhinelander were living, and only one of the grandchildren living at the death of William had died. A large number of great-grandchildren and a number of great-great-grandchildren were also living.
    Other great-great-grandchildren were born within due time after the death of William 0. Rhinelander; the last was Emily A. Hurry, the child of Mrs. Emily A. Hurry, in the Ren wick branch ■of the family, and she was born March 6, 1879.
    No child has been born to any of the grandchildren of William Rhinelander since the death of William 0. Rhinelander.
    Shortly after the death of William C. Rhinelander, an action of partition was begun by one of the grandchildren of William Rhinelander, and to this action all the living grandchildren and the child of the only deceased grandchild were made parties. All the parties to the suit were of full age. Part of the estate was sold under .nterlocutory decree, and final decree was granted February 10, 1882, partitioning the rest of the estate and allotting the same in severalty among the parties. The premises now in suit were by this decree allotted to Mary R. Swan, a grandchild.
    A large part of the estate has been sold by the parties to whom the same was allotted on the partition, and most of the remainder has been improved by the erection of buildings thereon. Mrs. Swan sold the premises in question to the defendant. The defendant made a contract for the sale of the same property to the plaintiff. At the time named for the completion of the purchase the parties on both sides were ready, but the plaintiff declined to -complete the contract on the ground that the partition suit had been prematurely brought, and that, therefore, the defendant could not give good title. Thereupon, the plaintiff demanded back the purchase money paid on account, and brought this suit to recover the same.
    The question raised was not who should take the property, but how the trust should continue.

      Samson Lachman, and Theodore Baumeister, for pl’ff; Henry H. Anderson, John M. Bowers and George Welwood Murray, for -deft.
   Ingraham, J.

I think it may fairly be said that the rules to be applied in determining the meaning of the testator when he used the word “ issue ” in his will has been settled in this state by the case of Drake v. Drake, 134 N. Y., 223; 48 St. Rep., 216, and the case of Soper v. Brown, 49 id., 206. The sole question, therefore, is to determine according to these rules the intention of the testator in using the word in his will.

The primary meaning to be given to the word is that of descendants generally. Thus, as was said in Palmer v. Horn, 84 N. Y., 519 : “In England, at an early day, it was held in its primary sense, when not restrained by the context, to be co-extensive and synonymous with descendants, comprehending objects of every degree.” And it follows that this meaning will be given to the word unless it appears from the will itself, or from the surrounding circumstances, that the testator used it in some other sense.

It appears, however, that (Soper v. Brown, supra), to give the word “ issue ” this meaning would often defeat the express intention of the testator, and hence the courts held that where it appeared that the testator intended the word to be used in another sense, such meaning was given to the word as would carry out the testator’s intention. And thus in Palmer v. Horn, supra, it was held from the context that the testator intended the word to be synonymous with children, and limited its meaning in that case to children.

It appeared, however, that in many cases the word was used not as meaning descendants generally, or limiting it strictly to children, but was used as synonymous with heirs at law, and this is expressed by Van Brunt, P. J., in delivering the opinion of the court in Drake v. Drake,- 56 Hun, 595; 81 St. Rep., 921,, where he says:

It is undoubtedly true that where there is a gift or devise by will after the determination of the life estate to A. B., and in case of his deathj before the death of the life tenant, to his lawful issue living at such death, if A. B. died before the determination of the life estate leaving issue, and such issue at the death of the life should consist of children and grandchildren whose parents were living, in the absence of circumstances showing a different intent, it would be held that the testator meant that the issue of A. B. should take by representation and not as a class. This has become the accepted rule of interpretation, because experience has shown that this construction, in many instances, best accords with the intention of the testator, and that it is only under very peculiar circumstances that the testator desires that a parent and child shall take at the same time as belonging to the same class, and that such circumstance inducing to such intent, when it exists, can almost always be found evidenced by the will itself or by the surroundings of the testator.”

There is no evidence of any fact outside of the language used in the will itself that would enable the court to determine the intention of the testator, and it follows that the meaning that the testator intended to be given to this word must be ascertained from the language used in the will.

I am unable to see any evidence that would justify a finding that the testator intended to limit the meaning of the word to that of children.

The will was dated on the 30th of March, 1825, and the testator died September 9, 1825. By the fifth clause of the will he provides as follows:

“ It is my will that the real estate situated in the city and county of Hew York, whereof I may die seized or possessed, shall be kept entire and no part thereof sold during the natural lives of my children and the natural life of the longest liver of them, and until the youngest person among such of the issue of my said children, or any of them, who shall be living at the death of said longest liver, or shall be born in due time afterwards, shall come to the age of twenty-one years ; with this intent and to effect this purpose, I do devise the said estate unto my executors, their heirs or assigns, as joint tenants for the said term in trust, to receive the rents, issues and profits thereof, and to apply the same in the following manner, viz.:”

It was the clearly expressed intention of the testator by this clause that neither of his children should obtain the possession of any portion of this real estate ; that the real estate should not be divided until after the death of the last child ; and it clearly appears that he intended that his estate should necessarily be divided immediately upon the death of the surviving child, for he provides that the trust estate should continue until the youngest person among such of the issue of his said children who should be living at the death of the longest liver of his children should become of age. - •

This clause, standing alone, would not indicate that he intended to give any meaning to the word “ issue” except the primary, legal meaning, which would include all the descendants of his children living at the death of the longest liver of his children.

Does the devise over indicate any intention as to the duration of the trust estate ?

After directing certain specific payments to be made out of the income received by the trustees, the will provides that the residue of the rents, issues and profits are to be distributed “in equal parts among my children then living, and the lawful issue of such of my children as may then die, leaving lawful issue, such issue to receive such share only as the parent of such issue if then living would be entitled to receive.”

It is clear that the testator here intends that the issue of a deceased child should take by way of representation, and thus, in case of the death of one of his children during the continuance of the trust, the person who would inherit from such deceased child would be entitled to the income during the continuance of the trust.

Thus, if one child died, leaving him surviving a child and a . grandchild whose parent was dead, the child would take one-half of the income that had theretofore been paid to the parent, and the grandchild the other half.

The meaning thus given to the word “ issue” in this paragraph would be that synonymous with that of heirs at law, and not with child or descendants generally.

The clause then proceeds to dispose of the remainder of the real estate after the termination of the trust as follows:

“And after the expiration of the term for which my said lands are above devised to niy executors in trust, I do then devise the real estate whereof I nuyy die seized or possessed, in the city and county of Hew York, to my lawful grandchildren and the lawful issue of such grandchildren, such grandchildren and their lawful issue to take said estate in like manner in every respect as if it had been the estate of the respective parents of such grandchildren its tenants in common and had descended to them and then lawful issue by inheritance.”

Here, again, the testator indicates the meaning with which he uses the word lawful issue. It is not as children of the grandchildren, but those who would be entitled to inherit from each grandchild, upon his death, who is to take the share of the grandchild dying, so that in the event before referred to, upon the death of the grandchild of the testator leaving a child and the child of the child, whose parent was dead, the child would take one moiety of his parent’s share and the grandchild take the other moiety.

Here we have, I think, an indication of the meaning which the testator desired to give to the word issue ” in the clause in question. He intended that the estate should not be divided until the death of the longest liver of his children. He also intended that the estate should not be divided during the minority of any one of the descendants of his children who, upon the death of the longest liver of his children, would be entitled to a share of the estate. And so he provided that the estate should not be divided and the trust estate should not terminate until the death of the longest liver of his children and the arrival at age of any one of the descendants of his children who would be entitled to a share in his estate.

This being the clear meaning intended by the testator when he used the word “ issue ” in the portion which related to the disposition of the income during the continuance of the trust estate, and to the disposition of the remainder over upon the termination of the trust estate, I think a case is presented for the application of the rule applied in Palmer v. Horn, 84 N. Y., 519, and cases there cited, where the meaning to be given to the word “ issue ” was to be controlled by the meaning given to the word in the context, it appearing in that case that the testatrix had interpreted the word “ issue ” by the context as meaning children.

The clause related to the disposition of the testator’s real estate in the city of New York; one subdivision' of the clause fixed the duration of the trust estate, and the other subdivision of the clause provided for the disposition of the income of the trust estate during its continuance, and for a disposition of the property itself after the termination of the trust

Thus in one sub-division of the clause there is no evidence as to the sense in which he used the word, but in the second sub-division of the clause it is clear that the word was used in a representative or substitutional sense, and thus applying the principle before stated that “ words used by the testator in his will are to be interpreted in the sense that he attributes to them when it appears by the context that they are not used in the strict legal sense,” Soper v. Brown, supra, no reason is apparent why testator should give the word a different meaning in the first sub-division of the clause from that given to it in the last, and taking the whole clause together, Ithinlc that the word “ issue ” as used in the sub-division limiting the duration of the trust should be givemthe same meaning that is given in the sub-division which applies to the disposition of the income during the continuance of the trust and the final disposition of the property upon the termination of the trust, and thus the trust estate terminated upon the death of the longest liver of his children and the arrival at the'age of twenty-one of any descendant of his children who would be entitled to a share of the estate upon the death of the surviving child,

I am aware that the plaintiff in this action is entitled to a marketable title freé from reasonable doubt, but as this is a pure question of law arising upon the construction of a will. “ and where the transaction is one between parties, the question is simply - whether the legal title to the land notwithstanding the objection is good in the vendor and will pass by his conveyance to the purchaser,” and there is no dispute as to facts, and the soundness of the title depends upon the decision of the question discussed, which is purely one of law, the court should determine such question. See Holly v. Hirsch, 49 St. Rep., 14.

I think, therefore, that the defendant is entitled to judgment for a specific performance of the contract as prayed for. Decision and judgment to be settled on notice.


author: Dykman, J.

text:
    William F. Corwith, Pl’ff, v. Lawrence Barry et al., Def'ts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Judicial sale—Resale.
    Where there has been a misapprehension respecting the adjournment of a foreclosure sale on the part of a judgment creditor who was present to protect his judgment, resulting either from misinformation or design, it is inequitable to permit the sale to stand, and an order directing a resale is .proper.
    Appeal by James P. Sloane, the purchaser at a sale on foreclosure, from an order setting aside the sale and directing a resale.

      Thomas F. Maguer, for app’lt; James F. Quigley, for resp’t.
   Dykman, J.

This is an appeal from an order of the county court of Kings county, directing a resale of the property described in the complaint.

The action is for the foreclosure of a mortgage, and the sale was under the judgment thereon.

There was a misapprehension respecting the adjournment of the sale on the part of the judgment creditor who was present to protect his judgment. Either the misinformation respecting the adjournment of the sale was the result of design or misinformation, and in either case it would be inequitable to permit the sale to stand.

The order appealed from is just and should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


author: Dykman, J.—We

text:
    Anna T. Geyer, App’lt, v. Edward L. Snyder et al., Ex’rs, et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Executors and administrators—Presumption of fraud—Purchase of
    ASSETS.
    The voluntary receipt by a legatee of her share of the proceeds of sale, the execution of a full release on such receipt, and the lapse of thirteen years without objection being raised, is sufficient to overcome the presumption of fraud which the law raises against the sale by executors to themselves, either directly or indirectly.
    Appeal from judgment in favor of defendants.
    Action to set aside a release executed by plaintiff, and to compel an accounting by defendants of the acts and proceedings of their testators as executors of plaintiff’s father.
    Plaintiff's father, at the time of his death, was engaged in business with two of the executors and another as partners. In 1879 the executors sold his interest to the surviving partners for $120,000, and divided the proceeds between the persons entitled ■thereto under the . will, including the plaintiff, and took lull releases from each. :
    The following is the opinion at special term:
    Cullen, J.—The sale of the interest of the testator, Philip W. .Engs, in the business of P. W. Engs & Sons, to the surviving partners, was undoubtedly a sale by the executors to themselves. But even had it been a breach of trust, such sale was not absolutely void, but voidable only at the election of the cestuis que trust, Boerum v. Schenclc, 41 N. Y., 182, and could be ratified by such cestuis que trust. If made with the previous consent of the beneficiaries, obtained properly and with knowledge of all the facts, the sale would not be a breach of trust nor voidable, but valid ab initio. In this case the adult beneficiaries executed a written consent to the sale, and received knowingly the proceeds thereof.
    The only question in the case, therefore, is as to the burden of proof being upon the defendants to prove affimiatively that the contract into which their testators entered with their •cestuis que trust was fair. I assume that as a general rule the burden inequity is upon the trustee to establish that fact. This rule would certainly apply as to the original contract of assent, and probably as to the affirmance. But I think that, from the lapse of time and the acquiescence of the plaintiff, the fairness of the transaction should now be presumed; even if the plaintiff had the right to avoid the sale and settlement, her laches in failing to seek such relief, or take such action for so many years would be a perfect answer to her present claims. Pomeroy’s Eq., § 965. It should; however, go further, and from the plaintiff’s failing to complain during many years, and until after the death of the parties with whom she dealt, the burden should now rest upon her to prove the unfairness of the transaction.
    Judgment for defendants, with costs.

      Edward B. Merrill for app’lt; Lewis Hurst and Arthur Hurst, for resp’ts.
   Dykman, J.—We

have no difficulty in upholding the judgment complains was not absolutely void; it operated to pass the title to the property, but it was voidable at the instance of the plaintiff.

Instead of raising objection to the transaction, however, the plaintiff voluntarily received her' portion of the proceeds of the sale and executed a full release to the executors, which must be construed into an acquiescence in the sale and all the proceedings down to that time.

That was in May, 1879, and then the plaintiff remained acquiescent' for thirteen years before she commenced this action.

' Even now the plaintiff offered no evidence to sustain the charges in her complaint of connivance and overreaching, but relied entirely upon the presumption which the law raises against sales by persons occupying a position of trust to themselves, either directly or indirectly.

In this case the lapse of time, the acquiesence of the plaintiff and her full release were sufficient to overcome the presumption. The judgment should, therefore, be affirmed, with costs. Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    Mary T. Daly, App’lt, v. The Alexander Smith & Sons’ Carpet Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Master and servant—Negligence—Assumption of .risk.
    Plaintiff, who was employed by defendant as a weaver, was injured by a wire flying out and striking her eye. It was her duty to watch the wires, and if one broke to replace it with a good one which hung near by. These were inspected before using. There was no proof that these wires were not examined or that a.break was usually dangerous. Held, that no neglect on the part of .defendant was shown, and that the rule that an employe takes the risks of the employment applied.
    Appeal from judgment dismissing the complaint
    Action to recover for injuries alleged to have been caused by defendant’s negligence.

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

The plaintiff is a carpet weaver. On the 18th of September, 1891, while weaving for the defendant, a head came off from the end of a wire and the wire flew out and hit the plaintiff in her eye, from which blow she subsequently lost the use of the eye. Wires such as the one which caused the accident were liable to fly loose. There were spare wires prepared, and it was the custom, of the weaver to put them in when one was discovered to be bad. The proof does not show that a break in the wire is usually dangerous. The machine must be at once stopped so as to replace the broken wire, otherwise the weaving will be bad. It does not require a loom fixer to put in a wire in the place of a broken wire. A loom fixer usually went around twice a day. He is not proven to have omitted the inspection on the day of the accident. When the loom is in motion he can see a defect such as caused the accident no better than the weaver. It was the plaintiff’s duty to watch the fabric woven and to watch the wires, and if one broke to stop the loom and replace it with a good wire, which usually hung in front of the loom. The inspector usually did not put the wire into the loom, the weaver did. The inspect- or’s duty was to examine the wires before using. There is no proof that the wires were not in good condition. There is proof that the wires will fly in spite of the greatest care, fly in an instant The proof, therefore, fails to show any neglect upon the part of the master, and the rule that an employe takes the risks of the employment applies to her.

The judgment and order denying new trial should, therefore, be affirmed, with costs. •

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


author: Barnard, P. J. Pratt, J.

text:
    The New York Rubber Co., App’lt, v. John Rothery el al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Watercourses—Diversion—Eights of riparian owners.
    In an action by a riparian owner to recover for diversion of water. Held, that under the decisions of the , court of appeals in this case, the court properly refused to direct a verdict for plaintiff, and left the question as-to whether defendants by their raceway materially and perceptibly diminished the natural flow of the water in the natural channel to the jury.
    Appeal from judgment in favor of defendants, entered upon verdict.
    Action to recover damages alleged to have been sustained by plaintiff by reason of defendants diverting the water in the Matteáwan creek from passing by the property of plaintiff.

      Franklin Bartlett and W. II L. Lee, for app’lt; H. H. Hustis for resp’ts.
   Barnard, P. J.

Under the extremely restricted rule applied to this case, the verdict of the jury is supported by the evidence. The stream is a large stream, sixty or seventy feet wide. The defendants have a dam some 200 feet wide just above the point where the defendants take the water for their factory, and the dam for its extreme width overflows each day in the dryest of time for its entire length. The stream below the dam, at its lowest period, is ten or twelve feet wide, and when the defendants are running their factory, and at the lowest of water, no perceptible diminution is seen in the stream running in its natural bed. The defendants’ wheel is but a thirty-inch wheel. Proof which would have legitimately tended to show that the fluctuation in the stream, reducing it from a sixty foot width to a ten or twelve foot width, was caused by the ponding of the water of the stream in the great body called Whaley Pond, and in and by the numerous large ponds between that great reservoir and the defendants’ dam, was excluded. With this proof in, the stream would have been a very large stream in the lowest of water."

The judgment should be affirmed, with costs.

Pratt, J.

If we correctly understand the decisions of the court of appeals, 107 N. Y., 310; 12 St. Rep., 53; 132 N. Y., 293 ; 44 St. Rep., 557, the turning point of this case is this: Have defendants, by their race-way, materially and perceptibly diminished the natural flow of the waters of Matteawan creek from their natural channel in front of plaintiff’s two lots or either of them ? We understand that it has also been decided by that court that this question was for the juiy. The learned trial judge so held, and refused to direct a verdict for the plaintiff, even for nominal damages. This question was broadly and fairly submitted to the jury, and the verdict was for the defendant. It follows that the judgment should be affirmed, with costs.

Dykman, J., not sitting.


text:
    Emily S. Barry, Resp’t, v. Daniel T. Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Summary proceedings—Occupancy on shares.
    An occupancy on shares comes within the act for summary dispossession of tenants.
    3. Same—Letting for share of proceeds.
    The parties hereto entered into an agreement by which defendant was? to work a quarry at half wages, the profits to be equally divided. This was afterwards changed into one by which defendant was to pay one-fifth of the proceeds of sales of stone to be made by himself. Held, that there was a letting for a money rent, and that the relation of landlord and tenant was created thereby.
    Appeal from final order made by the county judge of Rock-land county in summary proceedings, awarding possession of a> stone quarry to plaintiff.
    The facts appear in the opinion of the county judge, as follows:
    Weiant,. J.—This is a summary proceeding to recover possession of a parcel of land occupied by the defendant for the purposes of a quarry.
    In 1885, the parties to this proceeding entered into an agreement under which the petitioner, the owner of the lands in question, gave to the defendant the privilege of engaging in the quarrying business upon her lands, agreed to pay him a daily compensation for his labor, and upon sale of the stone taken out by the defendant the proceeds were to be equally divided. The defendant entered into possession of the premises in question under that arrangement and proceeded to work the quarry thereunder for a short time.
    Then by mutual assent” this arrangement was abandoned and the parties entered into a new agreement by which the defendant continued in possession of the quarry, and thereafter operated the same.
    Under the new arrangement the defendant was to take out the stone at his own expense, sell the same, pay the petitioner onefiftli of the proceeds thereof, and retain four-fifths for himself, Eo term was mentioned that this relation should continue.
    The defendant continued to occupy the parcel of land in question from that time until recently under this agreement, taking out the stone, selling the same, and paying over various sums or amounts to the petitioner, from time to time, on account of the' fifth part of such proceeds. On July 29, 1892, the petitioner, for the purpose of terminating the right of the defendant to further operate such quarries and to occupy the lands in question, caused a written notice to be personally served on him, requiring him to remove from the said premises on or before September 1, 1892, The defendant refused to remove from the premises or to surrender possession of them, and this proceeding is brought to recover possession of them. The only issue raised by the answer is as to the relation existing between the parties. The petitioner claims that the defendant, under the agreement by virtue of which the latter the became a tenant at and that virtue of § 2231 of the Code of Civil Procedure she is entitled to maintain"this proceeding. That section provides that “In either of the following cases, a tenant at will, or at sufferance, or for part' of a year, or for one or more years, of real property may be removed therefrom, as prescribed in this title.”
    “I. Where he holds'over and continues in possession of the demised premises, or any portion thereof, after the expiration of his term, without the permission of the landlord.”
    The defendant denies the relation of landlord and tenant, and claims that the statute cited is, therefore, inapplicable. I think the petitioner’s position is correct
    “ The relation of landlord and tenant exists whenever the person in possession of lands or tenements occupies them in subordination of the title of another, and with his assent express or implied.” McAdam’s Land. & Tenant, 44, 2d ed.
    But there must be the conventional relation' of landlord and tenant.' Benjamin v. Benjamin, 5 N. Y., 383; Matthews v. Matthews, 49 Hun, 846 ; 17 St. Rep., 991.
    The evidence discloses such relation-between these parties, and as such tenant the defendant pays, as rental therefor, one-fifth of the proceeds of the sales of stone quarried and removed. The defendant’s counsel contends that the relation was not one of landlord and tenant, but an occupancy whereunder the defendant ^as to work the quarry on shares.
    If that were so, it would seem that the relation of landlord and tenant did not exist between these parties. 'McAdam’s L. & T., 46, and cases there’cited; Reynolds v. Reynolds, 48 Hun, 142-144; 15 St. Rep., 464. _
    _ “ The true distinction appears to be that if there is any provision in the contract for dividing the specific products of the premises, then the parties become tenants in common of the crops; "* * * a certain quantity of grain or other articles, as a cer-
    tain-number of bushels of grain or tons of hay, etc. Then he is a tenant and the grain or hay is rent, and the landlord has no interest or title in them until they are delivered to him as rent.” McAdam’s Land. & Ten., 46 ; Rinehart v. Wilson, 15 Barb., .597; Taylor v. Bradley, 39 N. Y., 129.
    Here the agreement made no provision for a division' of the contract. The defendant alone removed the stone, sold the same and paid one-fifth of the proceeds to the petitioner, as rental or compensation for the use of the premises, and, under the authorities, the relation of landlord and tenant existed between the parties, and' this proceeding may be maintained.
    The defendant was a tenant at will. Such a tenancy is sáid to exist where lands are let by one person to another to have and hold of him at will' as lessor. In such case the lessee is called a tenant at will, because he hath no certain, sure estate, for the lessor may put him out at what time it pleaseth him. McAdam’s Land. & Ten., 35, and authorities there cited ; Harris v. Frink, 49 N. Y., 24-32.-
    - The diiration of the tenancy depends upon the concurrence of-Loth parties, and the dissent of cither may terminate it. - Id.

      But if the arrangement between the parties be one to occupy "the premises on-shares, it seems to me that "the petitioner is also entitled to his remedy under subdivision 3 of § 2232 of the Code.
    By that section it is. provided that, “ In either of the following ■cases a person who holds over and continues in possession of real property, after notice to quit the same has been-given, as-prescribed in § 2236 of this act, * * * may be removed therefrom, as prescribed in this title. * * *
    “ 3. Where he occupies or holds the property under an agreement with the owner to occupy and cultivate it upon shares, or for a share of the crops, and the time fixed in the agreement for his occupancy has expired.”
    The older authorities holding that summary proceedings could not be maintained in such a case are of no controlling force under the existing provisions of the Code. They were made at a time when there was no special provision of statute applicable to a case of occupancy on shares, and it was held that in case of a holding and occupancy on shares the relation of landlord and tenant did not exist and summary proceedings were not authorized.
    Summary proceedings were first extended to persons who held over and continued in possession of real estate occupied or held by them under an agreement to cultivate the same on shares, after the period fixed for such occupancy has expired, by chap. 471 of the Laws of 1874. A similar provision now constitutes subdivision 3 of § 2232 of the Code above quoted, and thus those authorities are now superseded by express statutory provisions authorizing summary proceedings in cases of such holding.
    The counsel for the defendant, however, while contending that the relation between the parties was one of occupancy and holding on shares, yet denies the right of the petitioner to maintain this proceeding under the subdivision of the section of the Code authorizing the remedy where the occupancy is on shares, on the aground that the same is authorized only when “ the time fixed in the agreement for bis occupancy has expired.” He claims that no time for the occupancy having been specified in the agreement, that the petitioner cannot maintain this proceeding under that section and subdivision.
    The language of the Code seems to sustain that contention. Ho time was fixed for the occupancy by the parties in their negotiations. But it would scarcely be that the legislature intended withholding the remedy in such a case while granting it in all others., May it not be that even where no time is mentioned by the parties im'making their agreement, that the time is nevertheless fixed by their agreement by-applying the rule of law that-the time is at the will of either party. The law supplies the omission -of the parties; and may it not be said that the parties knowing the law that in such á case the occupancy is at will, had thus fixed the time by their agreement.
    In § 2231 of the Code, we find that a tenant at will -may be removed “ after the expiration of his term.” That under" that section it is assumed that a tenant at will has a term until terfninated by the statutory notice. However, I do not rest my determination upon the right to maintain tins proceeding under that section and subdivision of the Code, and do not pass positively upon the question of whether or not the agreement between these parties is one under which the “time fixed in the agreement for his occupancy has expired,” within the meaning of the statute. I have not found any authority construing that provision.
    The petitioner is entitled to an order awarding to her the delivery of the possession of the property, with costs.

      John J. Mead, for app'lt; William E. Gowdey, for resp't.
   Barnard, P. J.

The plaintiff is the owner of a piece of land upon which there is a stone quarry. The defendant at first worked the quarry at half wages, and the product to be equally divided. This arrangement was changed into one by which the defendant should return to the owner one-fifth of the proceeds. The stones were sold by defendant, and the proceeds collected by him, and the stones belonged to the defendant, with an obligation to pay one-fifth to the landlord. The only controversy is, therefore, one of technical terms. The plaintiff and her witness say that it was mentioned that the one-fifth proceeds was for rent. The defendant says the same, except that the term rent was not used. The question whether the occupancy was under a technical relation of landlord and tenant was very much debated, and the decision did not entirely harmonize. The question is now set at rest by the act of the legislature. By § 2232 of the Code occupancy on shares comes within the act for summary dispossession of tenants. Under this section such a tenancy exists as can be reached under the act to dispossess tenants who fail to pay rent, or who continue after their term has expired. The Code also provides that a tenancy at will may be terminated by dispossession of the tenant if he hold over after the termination of his notice to quit. The evidence is so clear that the letting was for rent, and not for a share, but was only limited to one-fifth by way of arriving at a ■ sum, that the question whether an occupancy on shares without a term named in the agreement can be terminated by the thirty days notice need not be decided.

If it was a money rent which was received, the case was made out.for dispossession, and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    The People, Resp’ts, v. Georgianna Bishop, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Cbiminai, Law—Cohfessions.
    Defendant was convicted of the crime of arson upon proof of the burning of the building and her confessions. The evidence as to whether they were voluntary was conflicting; defendant testifying that they were induced by threats, and those to whom they were made testifying that there were no threats used. Held, that under these circumstances the verdict would not be disturbed, as it was to be-presumed that the jury found the confessions to have been voluntarily made.

      Appeal from judgment of the court of sessions of Dutchess county, convicting defendant of the crime of arson in the second degree.

      Frank H. Cassidy (J Morchauser, of counsel), for app’lt; H. D. Hufcut, dist.-att’y, for resp’ts.
   Dykman, J.

This is an appeal from a judgment which convicts the defendant of the crime of arson in the second degree for setting fire to and destroying the barn of Sydney Smith in the town of Pine Plains, in Dutchess county.

It is stated in the points for the appellant that she is a young girl about fourteen years of age, and she is spoken of by the witnesses as a young girl.

The testimony to connect her with the crime consisted of her acknowledgments to several witnesses who testified that she admitted that she set fire to the barn, and this appeal is based upon the insufficiency of such confessions and the impropriety of their admission in evidence.

The rule of law upon the subject has now become statutory and is this: “ A confession of a defendan t, whether in the course of

judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or else made upon a stipulation of the district-attorney that he shall not be prosecuted therefor, but it is not sufficient to warrant his conviction without additional proof that the crime charged has been committed.”

In this case the additional proof of the commission of the -crime is abundant, and there is no claim that the district-attorney made any stipulation on the subject.

The only question is whether the confession of the defendant was made under the influence of fear produced by threats.

The defendant testified that the confession was made by reason of threats.

All the persons to whom the confessions were made testified that there were no threats employed.

The charge of the judge is not given in the case and we must, therefore, assume that it correctly stated to the jury the rules of law relating to confessions which should govern their deliberations.

Such being the case, and the jury having found the defendant guilty, we must further assume that the jury found the confessions to have been voluntarily made.

In this aspect of the case we cannot interfere with the conviction.

Voluntary confessions when fairly proven constitute evidence of a high character, and we find no evidence either of abuse or orror.

The conviction should, therefore, be affirmed.

Barnard, P. J,, and Pratt, J., concur.


text:
    The People ex rel. Peter Tiernan, Resp’t, v. Nathaniel Marsh et al., composing the Board of Supervisors of Richmond, Co., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Justice of the peace—Fees—Richmond county.
    Section 2 of chapter 59, Laws 1866, limiting the fees of justices and constables in Richmond county to $300 per annum, was repealed by § 11 of chapter 693, Laws 1866, and chapter 791, Laws 1871, and the justices and constables are entitled to he paid at the state rate of fees even if the entire hill for services rendered exceeds $300.
    Appeal from order granting a peremptory writ of mandamus, requiring defendants to audit and pay the claim of relator.
    Relator presented to the board of, supervisors a duly verified bill for services rendered, as justice of the peace of the town of Middletown, in criminal cases for felonies arising outside the village of Edgewater, in the sum'of $404.15. The board refused to audit said, claim on the ground that relator had already presented to the town board a.bill for services in criminal cases for misdemeanors committed in the town outside of said village, in the sum of $360, and that, the same had been allowed to the amount of $300; and that, under these circumstances, the board was prohibited by chapter 59, Laws 1866, from auditing the claim or any part thereof. ■ . .

      J. D. Van Hoevenberg, for app’lts; W. M. Mullen, for resp’t
   Barnard, P. J.

Section 2 of chap. 59, Laws of 1866, is re-

pealed. By this section justices of the peace and constables in the county of Richmond were limited to $300 per annum. By chap. 692 of the Laws of the same year a scale of fees for justices of the peace and constables was made for tlic state and all laws inconsistent with this law were repealed except laws locally applicable to villages and cities. The two acts cannot stand together and. the repeal of § 2 of the Laws of 1866, is, therefore, express by virtue of § 11 of the act, chap. 692, Laws of 1866.

In 1871 by cliap. 791, Laws of 1871, the legislature amended the village charter of Hew Brighton, a village in Richmond county, and in this act repealed in words chap. 59,-Laws of 1866, and the. repeal was general and not restricted by the language used in effecting the repeal. If the repeal was effectual then chap. 2S3, Laws of 1875, would not reinstate the section so repealed. It has been decided by Justices Gilbert and Cullen that the restrictive section in the law of 1866 was repealed; by Judge Gilbert in the Kassner case, and by Judge Cullen in the Goggen case. Justice Landon agrees with these judges in this construction of the effect of the repealing words. The justices and constables in Richmond county have been paid according to the state rate of fees even if the entire bill for services rendered exceeded $300.

The order granting a mandamus should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: O’Brien, J.

text:
    Allen J. Hastings, App’lt, v. The Brooklyn Life Insurance Company, Resp’t.

      (Court of Appeals,

      Filed June 6, 1893.)

    1. Insurance (Life)—Evidence—Mailing of letter.
    The secretary of an insurance company swore that he wrote and signed a letter notifying the insured that his policy had lapsed, and that if he desired to restore it to full force he must inform the company at once; that he gave it to an attendant to copy in the book, who brought it back to him in such a condition as to show that it had been in the letter press; that witness then folded and inclosed it in a sealed envelope with a notice upon it to return unless delivered, directed it to the insured, and then put it in a basket in the office, where letters for mailing were usually placed. The porter testified that his business ivas to take the letters from the basket aud mail them; that he mailed all letters found in the box, but had no iccolleetion of ever seeing or handling this particular letter. Ko such letter was found among the papers of the deceased, a physician. Held, that it could not he held as a matter of law that the facts established the mailing of the
    . letter.
    3. Same—Powers of secretary of insurance company.
    The valid exercise of the powers of the secretary of an insurance company does not depend upon the particular place where he may be at the time. Tlie true test is not whether he acts in the general office, or in a distant state, but whether, at the time, he is engag d in the discharge of the general duties of his office and in the business of the corporation.
    3. Same.
    A witness, who was not very clear as to the language used, swore that his best recollection of the substance of the conversation between the secretary and insured was that the secretary said to the insured that they would carry him and give hito credit for premiums due and to become due thereafter. Held, that however improbable the u-stnnony of the witness appeared, the credibility, force and effect of the testimony was for the jury.
    Appeal from judgment of the supreme court, general term, fifth department, reversing order of special term granting new trial after verdict of jury for defendant rendered under the direction of the court at circuit.

      Frank Ramsey, for app’lt; Wm. F. Cogswell, for resp’i.

       Reversing 44 St. Rep., 37. .

   O’Brien, J.

A recovery is sought in this action upon a icy of life insurance. At the last trial the court directed a verdict for the defendant, but subsequently, upon a case and exceptions, sot the verdict aside and granted á new trial. The general term has reversed this order and reinstated the verdict as directed. The appeal involves simply an inquiry whether the case was one for the court or the jury. The defendant, by its policy, bearing date June 5, 1882, insured the life of Edwin' A. Walter, of Kendall Greek, in the state of Pennsylvania, in the sum of $¡12,500, payable, in case of death within the life of the policy, to his executors, administrators or assigns. The insured died on October 6, 1886, and his personal representatives assigned the policy to the plaintiff. The defense is that the policy was not in force at the time of the death of the insured, by reason of his failure to pay the semi-annual premium that became due December 5,1885, and another payment which became due June 5, 1886. There is no claim that these payments were in fact ever made, but it is claimed that the defendant has waived strict performance of the contract in that respect, and that while they are still due to the defendant, and may be deducted from any recovery on the policy, yet the circumstances and dealings between the partiés were such that an omission to pay the premiums on the day when due, according to the terms of the contract, did not produce a forfeiture or cancellation of the policy. In order to determine whether there was any question in the case for the jury, it becomes necessary to examine the testimony and state the facts established or conceded. A note was given for the payment due December 5, 1885, which became due March 5, 1886, but was not paid, and a new note was given in its place at sixty days.

These notes contained a provision pledging the policy as security for their payment, and that in case of non-payment, when due, the policy should become null and void. The renewal note, which became due May 4, 1886, was not paid, but the act of the defendant in extending credit to the insured for premiums falling due upon pledge of the policy established a course of dealing between the parties which it was necessary to terminate in some way before the policy could be treated as forfeited and void. On the trial the defendant produced and put in evidence a letter-press copy of a letter, signed by its secretary, bearing date May 27,’ 1886, addressed to the deceased at his place of residence in Pennsylvania, notifying him that his note for premium on ilie policy was due May 4, and was not paid. It stated further that by reason of this non-payment the policy lapsed, “and we are thereby obliged to cancel it on our books. If you have any desire to restore it to full force be good enough to inform us at once.” This letter, if received by the deceased, doubtless operated to terminate the course of dealing and to render the policy void, unless he responded to it in a reasonable time and paid the arrears of premium. If it had been shown that the letter had been actually mailed to the insured, the presumption would be that he received it. But we think that the defendant did not prove the mailing of the letter so conclusively as to warrant the court in taking the question from the jury. The secretary swore that he wrote and signed the letter and then gave it to an attendant to copy in the book, who brought it back to him in such a condition as to show that it had been in the letter press. The secretary, as he swears, then folded and inclosed it in a sealed envelope,with a notice upon it to return unless delivered, directed it to the insured, and then put it in a basket in the office where letters for mailing were usually placed. This is all the secretary knew about the mailing of the letter, but the porter in the office testified that his business was to take the letters from the basket and mail them ; that he mailed all letters found in the box, but had no recollection of -ever seeing or handling this particular letter. lie knew nothing on that point except what is to be inferred from his usual custom and practice. On the other hand it was shown that no such letter was found among the letters or papers of the deceased, who was a physician, and aside from what the porter' testified to as to mailing, there was no fact or circumstance shown that would warrant the conclusion that he had received it

It could not be held, therefore, as matter of law, that the .facts lierein established the mailing of the letter. While the facts and circumstances in support of that conclusion are quite persuasive and would amply warrant the jury in finding that it had been mailed, yet the question was one within their province and should not have been determined by the court. If, however, there is no .sufficient answer to the default in the payment of the premium that fell due on the 5th of June, 1886, following the date of the letter, the question thus far considered would not be material. On the part of the plaintiff some proof was given of a conversation between the deceased and the secretary of the defendant on or about May 5, 1886, at or near the place of residence of the insured in Pennsylvania. The witness who testified as to this conversation was the same person who was or had been the defendant’s local agent in the territory where the insured lived, and who had charge of the collection of premiums there. The witness was not able to give the language used by the parties to this conversation, nor was his recollection of its substance very clear, but after several questions were put to him by counsel and the court, he finally swore that his best recollection of the substance of the conversation was that the secretary said to the insured that they would carry him and give him credit for premiums due and to become due thereafter. If this testimony stood alone, it might be regarded as somewhat improbable, at least, but there are some conceded facts and circumstances that might be considered, possibly, as giving it some support There is no doubt a dispute as to the fact that the secretary was there and met the deceased and had a talk with him in regard to the policy. The insured was the defendant’s medical examiner in the locality, and the company or its officers were desirous of retaining him for some reason as one of its policyholders. The secretary himself admits this, and also that he urged the insured to retain .his policy, and that he told him they would give him time, but whether this related to the note that had just fallen due or to the premium to fall due a month afterwards, is not clear. Whether there was in fact any promise or agreement on the part of the defendant to waive prompt payment of the June premium was, we think, under all the circumstances, a question for the, jury.

However improbable the testimony of a witness may appear who testifies to a fact not in itself impossible in the ordinary •course of events, the credibility, force and effect of such testimony is for the jury. If the statement of this witness in its full scope and length is to be accepted, then there was an agreement between the insured and the defendant’s secretary, acting in its behalf, to the effect that credit would be given for the premiums, if the officer had the power to bind the company by such an agreement or promise.

The learned general term was of the opinion that, as the secrewas at the time in another state and not at the general office of the company, he had no power to bind it. We cannot concur in this view. The secretary is one of the general managing agents of á corporation, and, when in the discharge of the duties of his office, he represents the corporation itself. To waive prompt payment of a premium about to fall due is an act within the general powers of the secretary of a life insurance company. The president or other general officer of a corporation has power, prima facie, to do any act which the directors could authorize or ratify. Conover v. Insurance Co., 1 N. Y., 290; Booth v. Farmers' & M. N. Bank, 50 id., 396; Leslie v. Lorillard, 110 id., 519 ; 18 St. Rep., 520; Holmes v. Willard, 125 N. Y., 75; 34 St. Rep., 455; Patterson v. Robinson, 116 N. Y., 193; 26 St. Rep., 685; Rathbun v. Snow, 123 N. Y., 343; 33 St. Rep., 600; N. Y., P. & B. R. R. Co. v. Dixon, 114 N. Y., 80; 22 St. Rep., 684; Morawetz on Corporations, §§ 251-253.

There is no reason, and we are not referred to any controlling authority, for holding that the valid exercise óf his powers depends upon the particular place where he may be at the time. The true test of his authority to bind the corporation is not whether he acts in the general office or in a distant state, but whether, at the time, he is engaged in the discharge of the general duties of his office, and in the business of the corporation. These views lead to the conclusion that the case should have been submitted to the jury. The facts were not before the general term. The only question was whether the trial judge committed an error of law in setting aside the verdict which he bad directed, and granting a new trial. He was authorized to review his own action on motion for a new trial, and if satisfied that he had committed an error in refusing to submit the case to the jury, or in any other respect, to grant a new trial. He had the advantage of seeing the witnesses and observing their general intelligence, demeanor in testifying, and apparent fairness and candor, and unless in such a case it is clear that there was no evidence whatever to submit to the jury, his order should be sustained. Devlin v. Greenwich Savings Bank, 125 N. Y., 757 ; 35 St. Rep., 922. We have already expressed our views on that question, and, indeed, the learned general term did not hold that the case was destitute of all evidence to go. to the jury as to the alleged agreement between the insured and the defendant’s secretary to waive the payment of the premium about to become due, but only that the secretary did not possess the power to bind the company thereby at the place where he then was.

The order of the general term should be reversed, and that of the special term affirmed, with costs.

All concur.


author: McAdam, J.

text:
    George F. Nixon, Pl’ff, v. Aquilino Zuricalday et al., Def’ts.

      (New York Superior Court, Trial Term,

      Filed March 4, 1893.)

    1. Contract—Personal privilege not assignable.
    Contracts which contemplate the acts of particular persons are in their nature personal, and are not so elastic as to enable those whose duty it is to perform them to substitute at their pleasure others to perform the trust.
    2. Same.
    Plaintiff, who was about to sell a quantity of foreign fruit at auction, agreed to allow defendants a discount on purchases made by them not less than a certain amount. Defendants were a well known firm and plaintiff believed that large purchases by them would stimulate other bidders. Defendants purchased less than the amount specified, but one E. also purchased for them, but in his own name. Held, that the agreement conferred no vested right upon defendants, but gave them a personal privilege, which might have been withdrawn, and was unassignable; that defendants were not entitled to the discount, but were liable for the aggregate amount of the purchases.
    Motion for new trial on judge’s minutes.
    Olcott, Mestre & Gonzalez, for motion; Arnoux, Mitch & Woodford opposed.
   McAdam, J.

The plaintiff received a large shipment of foreign fruit, including dates, and offered it for sale through Brown & Secomb, auctioneers. He agreed to make an allowance of -J-cent per pound on purchases made by defendants of not less than 4,000 boxes, and ¿ cent per pound on purchases made by them of not less than 8,000 boxes.

The defendants attended the sale and bought in 3,942 boxes of dates, at $8,476.11, and one Elias bought in 4,368 boxes of dates, at $9,273.33. It turned out, after the sale was over, that Elias had made his purchases for the defendants, and hence the defendants are sued for the entire amount of the purchase, $17,749.44, with interest. Elias did not disclose the defendants’ name as purchasers at the sale, but gave his own name as each lot was struck off to him.

The defendants now claim to deduct from the purchase price $1,214.28, being one-fourth cent per pound on the aggregate weight, and base their right to do so upon the ground that prior to the sale they had interested Elias in their contract with the plaintiff; hence, what he did, they did. The plaintiff claims that his understanding with the defendants was personal to them, and made because they were the largest date purchasers in the United States, and the plaintiff wanted to induce them to purchase an unusually large quantity to stimulate other bidders who would be apt to follow the lead of such a well known firm. The plaintiff claims that the defendants, knowing this, refrained from doing as they agreed, and induced Elias to purchase the bulk of the dates in his own name, that other bidders might not be influenced to bid against him, as they might have been against them, and that in this way the plaintiffs lost the consideration which induced them to agree to make an allowance, and the defendants obtained a large quantity of fine dates at an unusually low figure, and now seek a further gain by the one-fourth of a cent a pound allowance.

According to the defendants’ interpretation of the contract, they had the right to bring Elias into it, or at their pleasure might have brought a syndicate of buyers into it, all unknown to the plaintiff, and in that way almost have run the sale to suit themselves, getting one-fourth of a cent allowance on every pound sold at whatever price the dates were struck off at. The question is whether the contract will bear that construction. It was not assignable, one test of which is the right of survivorship, 5 Lawson’s R. & R., § 2650, which would not have applied, for the privilege was one terminable at the death of the defendants. It was a proposition which should have been met either by some binding acceptance on their part prior to the sale, or by some open evidence of acceptance at the sale, such as buying in their own names to the extent of 4,000 or 8,000 cases. The defendants did neither. The relation in which the parties stood, and the nature of the duties to be performed, with their probable effect upon others, would indicate that there were reasons why the plaintiff selected the defendants as the recipients of the allowance, which would not apply to others not similarly known in that particular line of fruit. If this be so, then the contract was founded on a confidence reposed in the defendants, and created a personal trust, which could be discharged only by the personal acts of the defendants, or by the authorized and announced use of their names at the auction sale. In Smalley v. Greene, 10 Cent. Law J., 16, the question came up as to the right of a lawyer, employed to collect accounts, to sell his business and the power to make the collections.

The court said: “ It is presumed that the defendant’s clients selected him for the collection of their notes because they reposed confidence in his capacity and integrity, or for some reason desired him in preference to all persons else to perform this service. The “defendant had no right to substitute another for the performance of duty which he had agreed to discharge himself, and he could not, without the consent of his clients, bind them to accept another to perform the service in his place.”

In Robson v. Drummond, 2 Barn. & Adol., 303, it appeared that one Sharpe, a coachman, contracted to furnish the defendant a carriage for the term of five years, at a given price per year, payable in advance. At the end of three years Sharpe assigned his contract to his secret partner, Robson, the partnership being unknown to the defendant. Held, that the contract was personal and not assignable. The same principle was enforced in Lansden v. McCarthy, 45 Mo., 106, the case oí a butcher and hotel keeper, and applies to all cases of personal services or duties. Spalding v. Rosa, 71 N. Y., 40. It is, therefore, a rule in equity, that where the agreement is personal, depending upon the learning, skill or other characteristic of the contracting party, he alone can enforce performance. Waterman on Spec. Perf., § 72. The proposition of the plaintiff was not like a proposal in case of “rewards” offered to unascertained persons, for it was addressed to certain well known and specifically designated parties in whom, for obvious reasons, a confidence was reposed, and gratuity offered for the service. If such a confidence does not require that the maxim uberrima fides be adhered to, it at least inhibits the concealment of facts which the party bestowing the confidence was entitled to know, and prevents the slightest unconscientious advantage by the other party, particularly such as may result from the non-observance of strict business methods.

The leading rule of exposition is, that a contract shall be interpreted to give effect to the intention of the parties, Story on Cont, § 634; 2 Parsons on Cont, 494; Bishop on Cont, § 575; Parshall v. Eggerl, 54 N. Y., 18, and it does seem rational and manifestly just that a party should know with whom he is contracting, before or at the time of the sale, and that no stranger "can be thrust upon him afterwards to his possible disadvantage, and this is evidently just what was contemplated and intended here.

Contracts which contemplate the acts of “ particular ” persons are in their nature personal, and not so elastic as to enable those whose duty it is to perform them to substitute at their pleasure others to perform the trust

The contract conferred no vested right upon the defendants ; it gave them a personal privilege, nothing more; one which might have been withdrawn at any time prior to the sale. It was, therefore, in the nature of a jusprecarium, and unassignable. As the defendants could not have transferred the entire contract, they could transfer no part of it, nor could they bring in a stranger to share its benefits. The defendants, in order to obtain the deduction, must establish a valid contract by the plaintiff to allow them on all purchases made by them, whether in. their name or in that of Elias, í of a cent a pound or they fail in their demand for such allowance. In order to prove such a contract they must show that the parties agreed to the same thing in the same sense, for unless the minds of the parties met as to all these essentials there was no solid foundation on which the deduction can be sustained. A proposition becomes a contract only when met by an acceptance which corresponds with it adequately and entirely. This, like the former proposition, is elementary law.

For these reasons the plaintiff was of right entitled to a verdict for $17,945.64, the aggregate amount of the purchases, with interest The verdict was properly directed, and the motion for a new trial must be denied.


author: Pryor, J.

text:
    Henry J. Bornstein, Resp’t, v. Mordecai S. Kauffman, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    I. Bills and notes—Liability Upon irregular indorsement.
    Indorser of note to order of payee, indorsed by payee and delivered to a third person, is not liable to such person on the indorsement, without proof that it was made to give the maker credit with the payee.
    2. Same.
    Admission of the indorsement and promise to discharge the liability on it, is not equivalent to such proof; because a promise only to discharge the legal liability apparent on the paper.
    Appeal from judgment of general term of city court, affirming judgment in favor of plaintiff, entered on verdict by direction of the court.

      Louis Steckler, for app’lt; Allen M. Stoddart, for resp’t.

       Reversing 51 St. Rep., 500.

   Pryor, J.

The action is on a note made Harriet Edwards to the order of Annie Allen, indorsed by the defendant and delivered to Allen, and then indorsed and delivered by Allen to the plaintiff.

Since Herrick v. Carman, 12 Johns., 159, it has been the law of New York that, upon the relations of the parties as they appear on this paper, without more, the plaintiff cannot redover against the defendant Moore v. Cross, 19 N. Y., 227; Bacon v. Burnham, 37 id., 614; Phelps v. Vischer, 50 id., 69 ; Coulter v. Richmond, 59 id., 478; Wyckoff v. Wilson, 36 St. Rep., 35 ; 13 N. Y. Supp., 270.

But that, upon plea and proof of the intention of the defendant to give the maker credit with the payee, he may be held as prior indorser is an undeniable proposition. Cases supra.

The complaint contains no allegation to fix the defendant with liability as first indorser; but evidence for that purpose was received without available objection; and we are to determine whether it suffices to warrant an inference that the defendant in-, tended to become surety for the maker in favor of the payee.

Before accepting the note the plaintiff called upon the defendant, showed him the note,- and asked him, “ Is this your indorsement?” The defendant replied, “Yes, sir, it is my indorsement ;” to which the plaintiff responded, “ The party that has the note wants me to take it as money, and if I take it, will it be all right ?” The defendant answered that “ it would be all right when it becomes due.”

On the conclusion of the plaintiff’s case the defendant offered no evidence; and, as both parties moved for the direction of a verdict, the issues of fact were submitted to the court for determination. The decision was for the plaintiff; and if the evidence be sufficient to authorize a finding that by his indorsement the defendant intended to give the maker credit with the payee, we cannot disturb the conclusion of the court; but, if otherwise, the judgment must be reversed. Dillon v. Cockcroft, 90 N. Y., 649.

Upon the evidence it is neither apparent that the defendant was privy to the consideration between the maker and payee; nor that he intended by his indorsement to become surety for the maker with the payee. True, his name was on the note when delivered to the payee; but the legal effect of the fact was that he incurred a liability subsequent and subordinate to that of the payee. Bacon v. Burnham and Coulter v. Richmond, supra. True, again, the defendant acknowledged the indorsement, but an indorsement which, in law, bound him only after the payee. True still further, that he said the note would be all right at maturity; but this, at the most, was a promise to discharge his liability as apparent on the paper; that is, as second indorser. In short, at the interview with the plaintiff not a word fell from the defendant which tended to qualify his legal responsibility upon the note

Unquestionably, the plaintiff took the note on the faith of the defendant’s admission of liability; but of the liability which the law imposed between the parties.

The plaintiff said, “the party that has this note,” the.payee, “ wants me to take it as money; and if I take it, will it be all right ?” The defendant assented ; that is, he agreed to be surety for the payee, but such he was already by force of his indorsement, not, however, in behalf of the plaintiff.

The evidence is insufficient to justify the direction of the verdict for the plaintiff. Phelps v. Vischer, 50 N. Y., 69, 74.

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

Bookstaver and Bischoff, JJ., concur.


text:
    Frank Moss, Ex’r, Resp't, v. Jacob F. Wittemann el al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    I.. Pleading—Dismissal on trial.
    It is error for the court to dismiss an answer at the trial.
    3. Same.
    The complaint maybe dismissed at the trial; but this by virtue of §§498, 499 of the Code.
    Appeal from judgment in favor of plaintiff, entered on a verdict.
    The opinion sufficiently states the case.

      John A. Straley, for app’lts ; Frank Moss, for resp’ts.
   Pryor, J.

In an action for rent, the defendants interposed an affirmative several counterclaims; on plaintiff’s motion at the opening of the case, the defense and counterclaims were dismissed for insufficiency in substance; the trial proceeded upon two other issues raised by the pleadings, and resulted in a verdict for the plaintiff on one issue and for the defendants on the other. Judgment was entered for the plaintiff.

Upon the appeal the only question is, whether the court erred in the dismissal of the defense and counterclaims.

Elaborate and interesting arguments are submitted to us by the Tespective counsel, in attack and support of the rejected pleadings ; but, as the judgment must be reversed upon a point of .practice, we have no occasion to consider them on the merits.

In Smith v. Countryman, 30 N. Y., 655, the court of appeals held, that a plaintiff cannot move, at the trial, to strike out a defense on the ground that the facts stated do not constitute an answer to the action. The reason of the ruling is abundantly vindicated in concurring opinions by Davis and Mullin, JJ., and its validity" repeatedly recognized in subsequent adjudications. Schuyler v. Smith, 51 N. Y., 309, 317; Meyer v. Fiegel, 7 Robt., 122, 128; Butler v. Livermore, 52 Barb., 570, 578; Lathrop v. Godfrey, 3 Hun, 739, 742. On the other hand, upon a diligent examination of the reports, we fail to discover that the authority has ever been challenged.

The complaint may be dismissed at the trial because bad in substance; but this by virtue of express provision of the Code, §§ 498, 499. Tooker v. Arnoux, 76 N. Y., 397, 400.

•Counsel for the respondent intimates that the practice pursued by him is habitual with the profession. It may be so, and still we are bound by the express adjudication of the court of supreme jurisdiction. Against such an adjudication the maxim communis error facit jus is of no avail. “ The mere statement and restatement of a doctrine, the mere repetition of the cantilena of lawyers, cannot make' it law, unless it can be traced to some competent authority, and if it be irreconcilable to some clear legal principle.” Judgment of Lord Denman in O' Connell v. Regina, Leahy’s Edition, p. 28.

The case before us furnishes a signal illustration of the evil of the practice condemned in Smith v. Countryman. In the haste and perplexities of nisi prius, the learned trial judge was required to explore the intricacies of complicated pleadings, and, without opportunity of research or reflection, to pass upon questions of law which can be adequately debated and safely decided only upon the formal argument of a demurrer. '

Such demurrer the respondent will be allowed the privilege of interposing; and on appeal from the considerate decision of the special term, we may determine the sufficiency of the pleading.

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

Bookstaver and Bischoff, JJ., concur.


text:
    William F. Howe et al., Resp’ts, v. Isabella Schweinberg, Adm’rx, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    Trial—Directing verdict.
    Upon the confirmation by a disinterested and unimpeached witness of the uncontradicted evidence of another witness whose testimony, by itself, might be the subject of suspicion, the court is warranted in directing a verdict.
    2. Evidence—Code Crv. Pro., § 829.
    A party on cross-examination, by eliciting a partial disclosure of a transaction not open to proof by his adversary, under § 829 of the Code, admits that adversary, on the re-direct examination, to a complete disclosure of the transaction.
    Appeal from judgment of the general term of the city court, affirming judgment on verdict by direction of the court.
    Action on a special agreement for compensation of professional services.

      Abram Kling, for app’lt; David Leventritt, for resp'ts.

       Affirming 49 St. Rep., 882.

   Pryor, J.

The plaintiffs sue upon a special contract for a fee of a thousand dollars, contingent on the event of the litigation for which they were retained. On the trial, the single issue in controversy was as to the fact of the agreement. At the close of the plaintiffs’ ease the defendant declined to introduce any evidence, whereupon the court directed a verdict for the plaintiffs; and the only question for adjudication is, whether the issue touching the contract between the parties should have been submitted to the jury.

Upon the assumption that, for proof of the contract, the plaintiifs relied exclusively on the testimony of Moss, their clerk, and that his story was improbable and discredited by his own contrary declarations, the defendant insists that the evidence presented a case for determination by the jury.

Certainly, the courts have gone very far in refusing to decide a case on the uncorroborated evidence of a witness whose relations to a party imply the influence of some sinister interest or motive. Whether the testimony of the witness Moss before us, in view of his connection with the plaintiffs, and his supposed improbable and discrepant statements, be of the character impugned by the decisions, we need not determine; for it was abundantly confirmed by another witness whose evidence is accredited by its repugnancy to his own obvious interest.

Simon Feist was called by the plaintiffs to prove the disputed contract; but, as he had guaranteed its performance by the intestate, the defendant procured the rejection of his testimony, because incompetent under the provisions of § 829 of the Code. Nevertheless, the defendant proceeded, upon cross-examination, to show by the witness that he had made a payment to plaintiffs, and the time of the payment. Thereupon, plaintiffs’ counsel elicited from the witness the fact that he made the payment on his guaranty of the very contract in controversy.

Here, beyond question, was the most persuasive proof of the contract; because by a witness who was himself bound to perform it on the default of defendant’s intestate, and who, indeed, had already made a partial payment in discharge of his obligation under it. In Kavanagh v. Wilson, 70 N. Y., 177, 179, the-court say: “ When a disinterested witness, who is no way discredited, testifies to a fact within his own knowledge, which is not improbable, or in conflict with other evidence, the witness is. to be believed, and the fact is to be taken as legally established, so that it cannot be disregarded by court or jury.” Lomer v. Meeker, 25 N. Y., 361; Elwood v. The 'Company, 45 id., 549. True, the witness was interested; but as his interest was against his testimony, we have a stronger confirmation of his veracity than if he stood wholly indifferent.

The defendant urges, however, that the contract is incredible, and so it might be if an absolute engagement to pay, but being contingent on the success of the services, it is not an improbable bargain.

Defendant’s counsel contends further, that the evidence, though drawn from the witness by cross-examination, was incompetent under § 829 of the Code; but how so ? By interrogating upon new matter the defendant made the witness her own; and by a partial disclosure entitled her adversary to a revelation of the entire transaction. People v. Oyer & T. of New York, 83 N. Y., 438; Nay v. Curley, 113 N. Y., 575 ; 23 St. Rep., 496; Merritt v. Camp-bell, 79 N. Y., 625.

The conclusion is that the court was well warranted in withholding the case from the jury.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.