author: Learned, P. J.:

text:
    In the Matter of the Petition of JOHN PENNIE to Vacate an Assessment, etc. In the Matter of the Petition of MATTHEW COLLING to Vacate an Assessment, etc. In the Matter of the Petition of ELISHA P. HURLBUT to Vacate an Assessment, etc.

      Assessments — what errors can be reviewed under section 2 of title 11 (chap. 298 of 1883) of the charter of Albany — meaning of words “substantial error” and “party aggrieved,’’ as therein used — the requirement as to the notice of the meeting at which bids are to be deceived as pi'esvribed by section 8 of title 9 of the charter — -a grantee taking subject to an assessment is not bound to pay an illegal assessment.

    This proceeding was instituted, under the provisions of section 2 of title 11 of the charter of the city of Albany (chap. 298 of 1883), to vacate an assessment for the excavating, paving, etc., of Second avenue, in said city, upon the ground that the notice of the meeting of the hoard of contract and appor, tionment to receive bids for the work had not been given as prescribed by section 8 of title 9 of the said charter.

      Held, that a claim by the defendant that the error, if committed, was not committed in a proceeding relative to the assessment, or in a proceeding to collect the same, within the meaning of those terms, as used in said section 2 of title 11 of the charter, could not be maintained.

      The words “substantial error,” as used in the said section, must he construed to embrace everything which might otherwise be remedied by a suit, action or special proceeding, the right to resort to which is taken away by section 8 of the said act.
    Section 8 of title 9 of the charter requires that bids shall be received at a meeting of the board of contract and apportionment, held “ at a time of which at least one week’s notice * * * shall have been given in the official papers by five consecutive publications, Sunday and legal holidays excepted, of such notice therein.” The publication in this case was from May fifteenth to May nineteenth, inclusive, of a notice of a meeting to be held on May twenty-first.

      EM, that it was insufficient
    That the requirement that such notice should be given was mandatory, and that a rauure to comply therewith rendered the assessment void.
    The petitioner purchased the property upon which the assessment was imposed while the work was in progress by a deed which recited, in substance, that it was subject to whatever assessment should be made.

      EM, that the petitioner was a “party aggrieved” by the assessment, within the meaning of that term as used in said section 2 of title 11, and that he was not estopped from disputing the validity of the assessment, by the clause in his deed, as he did not assume to pay an illegal assessment
    • Appeal from an order made at Special Term and entered in Albany county vacating an assessment made in this proceeding, instituted under section 2 of title 11. of the charter of the city of Albany (chap. 298 of 1883).

      D. Cady Herrick, for the city, anoollant.

      Alden Chester and G. De W. Hurlbut, for the petitioners, respondent
   Learned, P. J.:

This is an appeal from an order of the Special Term vacating, as to the petitioner, an assessment for the excavating, etc., of Second avenue. This proceeding was taken by the petitioner under section 2 of title 11 of the Albany charter, chapter 29S, Laws of 1883. The alleged error for which the assessment was vacated is a failure to give the notice required by section 8, title 9, of the meeting of the board of contract and apportionment to receive bids for the work. And the first point made by the city is, that this (if an error) is not in a proceeding relative to an assessment or in a proceeding to collect the same, and, therefore, that the provisions of section 2, title 11, are not applicable. The counsel for the city cites as authority on this point the case of Matter of Cruger (84 N. Y., 619). In that case an assessment had been made under an act of 1858. By a previous act of 1852 it was directed that an estimate of damages by change of grade should be made and included in the expense of the assessment. This had not been done. The court hold that the petitioner was not aggrieved by the assessment; that his right to damages for change of grade was not affected by it; that there was no fault in the assessment, except that a possible item of expense had been omitted, which, if inserted, would have increased his assessment; that he had his remedy by mandamus. (People ex rel. Myers v. B'rd of Ass’rs, 53 How., 280.) The present case is quite different. If the petition is correct, the failure to advertise for the proper time affects the validity of the assess mont, and is, therefore, in a proceeding relative to the assessment. In Strusburgh v. The Mayor (87 N. Y., 452), is a statement of the remedies which may be had by action in respect to assessments. In Bruecher v. Port Chester (101 N. Y., 240), it was held that, avhere an assessment was utterly void for want of jurisdiction, one who had paid might sue and recover back his money. In Jex v. Mayor (103 N. Y., 536), where a want of jurisdiction was shown, it was hold that one who had paid under coercion might recover his money back without vacating the assessment, or, if necessary, the assessment might be vacated in that action. Now, in that case, it was urged by the defendant that chapter 312, Laws of 1874, made the summary remedy (similar to that in the present case) exclusive. The court held that that remedy applied only where there was an existing lien; and not when the lien had been removed by payment. (In re Lima, 77 N. Y., 170.)

It would seem, then, from these decisions, that where an assessment is void for matters not appearing in the proceedings, the party assessed may permit his property to be sold and may defend in an action of ejectment or he may pay and then recover back the money.

Further, in the Jex case the court considered a statute similar to the present, which the defendants there urged was the exclusive remedy. Now it would have been a short reply to this position to say (as the defendant here says), that the stutute did not apply to such defects as are now under consideration, but only to defects in the assessment; to say, in other words, that the alleged defect (a want of sufficient signers to the petition), was hot in a proceeding relative to the assessment. But the court did not take that view. They held that the statutory repiedy did not apply, because the assessors had been paid, and hence there was no longer a lien. (In re Hughes, 93 N. Y., 513.) Thus the court implied that, if the assessment had not been paid, the statutory remedy would have been applicable and exclusive. And they said that the act provided an easy and expeditious remedy for the vacation of an illegal or irregular assessment.” The law there under consideration was chapter 312 Laws of 1874, amending chapter 338 Laws of 1858 ; and the language, as quoted in the opinion, is substantially that of the Albany char-ter. When we consider that these remarks were made in a case where the alleged error was a want of sufficient signers to the original petition, we see that the court did not limit the statutory remedy to errors in the assessment itself.

When section 3 of title 9 of the Albany charter takes away all suits or actions to vacate assessments or to remove a cloud on title arising from assessments, it evidently indicates that the proceeding under section 2 is sufficiently extensive to do all which might otherwise be done by suit or action. And certainly a suit or action might, but for this provision, reach such an error as is alleged in this case. Further, it is provided that proceedings to reduce or vacate” shall be confined to the proceedings mentioned in this title. So that the remedy here provided is a substitute for “ proceedings ” as well as for suits and actions. Substantial error,” therefore mentioned in section 2, must be construed to embrace everything which might otherwise be remedied by suit, action or proceeding. The manner in which this remedy may be carried out in detail is shown in section 1 of the same title. We do not think that the case of Matter of Fulton Street (29 How., 429) can have any weight against the language used by the Court of Appeals in the Jex case above cited and against the decisions. (In Matter of Emigrant Ind. Savings Bank, 75 N. Y., 388: In Matter of Manhattan Savings Inst., 82 id., 142; In Matter of Lange, 85 id.; 307.) We are, therefore, of the opinion that if substantial error existed in the respect claimed, the present is a proper mode of remedy. For the purpose of receiving bids the statute requires one week's notice by five successive publications. (Section 8, title 9.) The publication was from May fifteenth to May nineteenth, inclusive. The time for receiving bids May twenty-first. That was held insufficient in the Electric Light Case (decided by Justice Peckham in November, 1885). The same principle was held In the Matter of Carlton St. (16 Hun, 497). That case was affirmed (78 N. Y., 362), but the point in question does not seem to be passed upon. We see no reason to disagree with these views. The question then is, whether the,giving of such notice is mandatory. The Douglas Case (46 N. Y., 44); Astor Case (50 id., 363); Smith Case (52 id., 526); and Phillip's Case (60 id., 16), tend to sustain this view. It may be urged, however, that these cases refer to advertisements prior to the law for the improvement, and, therefore, are not analogies to an advertisement only for bids for the contract. But in the Manhattan Savings Institution Case (ut supra), it was held that the fixing a price for rock excavation withdrew it from competition and hence made the assessment void. So, also, in the Mahan Case (81 N. Y., 621); and Manhattan R. R. Case (102 N. Y., 301), the failure by commissioners to take a proper oath was held to be a fatal defect. (Merritt v. Port Chester, 71 N. Y., 309.) See, however, another view on this point in Matter of Kendall (85 N. Y., 302).

Of course, if the city can dispense with the exact notice required by die statute, they can give no notice at all-. To hold that a contract could be made without notice would be to take away a safeguard deemed necessary by the legislature. We think the petitioner is a party aggrieved. It is impossible for him to show how many persons would have presented bids, if the proper notice had been given. And, if the assessment is illegal, he is aggrieved because it is an apparent burden upon his land. The petitioner took his deed while the work was in progress and the deed recites, in substance, that it is subject to whatever assessment shall be made, the payment of which is the principal consideration. It is claimed by the city that this estops the petitioner. We think not. (Matter of Gantz, 85 N. Y., 536.) He did not assume to pay an illegal assessment. The agreement .in the deed was probably intended to protect the grantor against any claim of the grantee by reason of the assessment. If the assessment was illegal, it was no claim against grantor or grantee. It is further claimed that the petitioner saw the work go on and made no objection. But he was not informed, by seeing the work go on, that the board of contract and apportionment had not given the lawful notice for receiving bids. ¥e may notice that the order appealed from'enjoins the city from attempting to enforce the collection. This is not objected to. But we may remark that we see nothing in the statute authorizing an injunction.

The order should be affirmed, with costs. These views also dispose of the case of Colling and the case of Hurlbut to vacate the same assessment.

SimiJar order in each case.

Landon, J., concurred; Bockes, J., in doubt.

Orders affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN A. FOLEY, Respondent, v. THE CITY OF TROY, Appellant.

      Liability of a city for injuries occasioned by a fall on, an icy sidewalk — what evidence is insufficient to prove constructive notice to the city.

    Upon, the trial of this action, brought to recover damages occasioned to tire plaintiff by his slipping on some ice upon a sidewalk in Troy, on the evening of .January 28, 1881, evidence was given showing that at the time he slipped and feli there was hard ice on the sidewalk, and thatathe plaintiff was seriously injured, No direct evidence was given that the ice had been on the sidewalk for any time prior tc the accident, but the plaintiff sought to prove that the ice had been for some time on the sidewalk by showing that the temperature of the weather was below the freezing point from the seventeenth of January to the day of the accident, and that snow fell on January twenty-second and not again until after the twenty eighth.

      JTcld, that the evidence was insufficient to show constructive notice to the city, and that the court erred in submitting that question to the jury.
    Appeal by the defendant from a judgment entered in Rensselaer county, upon the verdict of a jury in favor of tbe plaintiff, for $800 damages, together with $177.88 costs, and docketed in Rensselaer county on the 15th day of November, 1886, and also from an order denying the defendant’s motion to set aside such verdict, and for a new trial made upon the minutes of the judge before whom the action was tried.

      R. A. Parmenter, for the appellant.

      Henry A. King, for the respondent.
   Learned, P. J.:

This action was commenced in June. 1881, and was tried in November, 1886. It was brought to recover damages occasioned to plaintiff by his slipping on some ice upon a sidewalk in Troy, on the-evening of January 28, 1881. There is proof that at the time he slipped and fell there was Hard ice on tbe sidewalk ; and that plaintiff was seriously injured by ms fall.

No direct evidence was given that the ice had been on tlie sidewalk for any time prior to the accident. The plaintiff claimed to show that the ice had been for some time on the sidewalk by evidence of the condition of the weather for a week previous. He showed that, for that time, the temperature of the weather was below the freezing point; that the seventeenth of January was the last time that the temperature rose above the freezing point, prior to the accident. And the plaintiff argued from that fact that ice could not have formed from natural causes on the sidewalk for at least a week previous to the time of the accident

We think that such evidence was insufficient to _ ,tify the jury in holding the city to have been negligent. All the facts shown are consistent with the theory that some person threw water on the sidewalk that evening and that it then froze. The mere fact that there was snow on the twenty-second of January, and none after that and up to the twenty-eighth, does not establish, nor is it sufficient proof, that the ice on the sidewalk the twenty-eighth was caused by the snow of the twenty-second. Of course, in actions of this kind the plaintiff must show negligence on the part of defendant , and this requires proof either of actual knowledge or of what may be called constructive knowledge, arising from length of time. No actual knowledge is shown. Therefore, proof must be given that the ice had been there so long as to justify the finding of con. structive knowledge. Now the plaintiff’s evidence that no ice or snow had fallen after the twenty-second is just as much proof that this ice was not caused by rain or snow at all as it is that it wae caused by the snow of that day. That is, the evidence is equally consistent with each hypothesis. If nothing but snow or rain could cause ice, then the evidence would be effectual. But the ice might be formed from water accidentally or intentionally spilled.

It is very evident that the decisions of our highest court, in this class of cases, are imposing upon cities in the northern part of the State a burden in regard to the snow and ice of the winter which is very oppressive. To require a city to clean off the snow and ice from all its many miles of sidewalks, or to be liable to any one who may slip thereon, is to place upon it a duty needing large expenditures and numerous officials, It is perhaps a questionable construction, which has evolved this duty from the mere obligation of keeping sidewalks in repair.

Under these decisions, however, all that we can do is to see that the proof shall be sufficient in each case to meet the rules established( until, at least, our highest court shall begin to distinguish ” and to let the pendulum swing the other way. In the present case we think the evidence insufficient to show constructive notice. The jury could not reasonably, in this case, ascertain “ whether one fact had being from another fact” and, therefore, should not have been allowed “ to go through with that process.” (Hart v. H. R. B. Co., 80 N. Y., 622.)

Judgment and order reversed and new trial granted, costs to abide the event

Bockes and Landon, JJ., concurred.

Judgment and order reversed, new trial granted, costs to" abide event.


author: LeabNed, P. J.:

text:
    MARY J. HAGGERTY, Respondent, v. JANE E. THOMSON and Others, Appellants.

      Nuisance — a purchaser of premises is not liable therefor until notified of its existence.

    Upon the trial of this action, brought to recover damages alleged to have been caused to the plaintiff’s premises by a roof, gutter and conductor on the defendants’ adjoining premises, which were said to pour water on the plaintiff’s premises, it appeared that the gutter and conductor had been in the same position for some eighteen years, and that the defendants had purchased • the premises in 1878. The defendants, who did not live in the city where the premises were situated, testified that they had no knowledge that the gutter cast water on the plaintiff’s premises.
    Held, that without proof of previous notice to the defendants of the existence of the nuisance the action could not be maintained.

      Coriliooton Stone Itoadv. Buffalo, New York and Brie llailroad Company (51 IT. Y., 573); Miller v. Church (2 T. & C., 260; S. O., 5 Hun, 342) followed; Irvine v. Wood (51 N. Y., 224) distinguished.
    Appeal from a judgment in favor of the plaintiff entered in Albany county upon the verdict of a jury, and from an order denying a motion for a new trial on the minutes of the justice before whom the action was tried.

      Norwood (& Coggeshall, for the appellants.

      Guthrie <& Guthrie, for the respondent.
   LeabNed, P. J.:

This is an action to recover damages alleged to be caused to plaintiff’s premises by a roof, gutter and conductor on the defendants’ adjoining premises; which, it is said, pour water on and injure the plaintiff’s premises. A verdict was rendered for the plaintiff ; and the defendants appeal from the judgment thereon. No order denying a new trial appears in the printed papers, although the case states that a motion was made and denied.

The appellants submitted the cause on argument upon printed points. In those points they state that they rely on want of notice to, or knowledge by, the defendants of the existence of the alleged nuisance. It is not questioned that the gutter and conductor have been in position some eighteen years and that the defendants purchased in 1878. They testified that they had no knowledge that the gutter cast water op plaintiff’s premises. There is some evidence of notice to O’Brien, the tenant of defendants. But this evidence was objected to by defendants and is claimed by them to be incompetent as notice to them. In the complaint it is alleged that the gutter in question overhung the plaintiff’s premises. But it appears that the cause was not submitted to the jury as trespass by an overhanging gutter. It was submitted on the questioii whether, by means of the gutter, the plaintiff’s' premises had been damaged by reason of water which would not otherwise have run thereupon. Hence it is that defendants insistthat they are not'liable for such damages until after notice. And as the plaintiff recovered actual, and not merely nominal damages, the question is important. Perhaps the question would be different if the action were for trespass quare clausum,, on account of a gutter or other structure projecting over plaintiff’s land.

In Conhocton Stone Road v. Buffalo, New York and Erie Railroad Company (51 N. Y., 573), the question stated by the court is, “ whether a grantee of real estate on which a nuisance had been erected, before its conveyance to him, by a previous owner, and which was merely continued as it was at the time he acquired title, can, without any previous notice of its existence and a request to abate it, be held liable for damages subsequently resulting therefrom during the continuance of his ownership.” That is precisely the question here. The court discussed the question at length and with a citation of many authorities and held that such grantee could not be held liable for damages until after notice. This doctrine was followed in Miller v. Church (2 N. Y. Sup. Ct. [T. & C.], 260), and again, in the same case, on a second appeal (5 Hun, 342). The opinion is not reported. But an examination of the manuscript shows that it was held that in such cases only the damages accruing after the grantee had notice could be recovered. The cases of Wenzlick v. McCotter (87 N. Y., 122), and of Wasmer v. Delaware, Lackawanna and Western Railway (80 id., 212), are in harmony with this. The case of Irvine v. Wood (51 N. Y., 224), was decided by the same court which decided the Conhocton road case and about the same time. It cannot then have been thought to be in conflict Nor is it. The defendant "Wood was a tenant, actually using the coal-hole through which plaintiff fell. It was the actual use cf the nuisance which proved defendant’s knowledge and made him liable. This is the doctrine of the Wasmer Case (ut supra). In the case at bar the defendants did not even live in the city where the alleged nuisance existed. Their tenant occupied the building, and they had no knowledge that any nuisance existed. It cannot be necessary to discuss a question settled by the highest court in 1873 and not disturbed since.

The judgment should be reversed, new trial granted, costs to abide event.

Bookes and Landon, JJ., concurred.

Judgment reversed, new trial granted, costs to abide event.


text:
    JOHN MYERS and Others, Respondents, v. JAMES CRONK, as Administrator, etc., of HIRAM A. FERGUSON, Deceased, Appellant.

      Reference of a disputed claim against an estate ■ — the referee can only pass upon the •validity and amount of the claim referred, to him — claimants having separate interests cannot unite — when performance of am agreement will not he specifically enforced.

    Upon the hearing before a referee, to whom had been referred a disputed claim presented by persons claiming under a will of Eveline B. Ferguson against the administrator of Hiram, her husband, it appeared that Eveline died in June. 18 i 8, leaving a will by which she disposed of a note of $600 which had been made and was held by her husband, giving certain amounts thereof, and certain other sums of money, to persons therein named, who joined in presenting the claim. Hiram died intestate August 10, 1888, leaving an estate, consisting of real and personal properly, worth about $10,000, and on October 22, 1883, the will of Eveline was admitted to prubate and letters of administration were issued thereon.
    The referee found that the claimants had agreed that the will of Eveline should not be admitted to probate, and that they would permit the estate to remain in the hands of Hiram without payment of their legacies, and that, in consideration of this promise, Hiram agreed to leave them all his property, and that the plaintiffs were entitled to recover from his administrator all the estate, both real and personal, of Hiram after deducting expenses of administration and just debts.

      Reid, that the judgment should be reversed for the following reasons:

      Mrst. That no recovery could be had as to the real estate as the administrator had no rights therein.

      Second. That the referee had attempted to decree a specific performance of the alleged contract, as if the reference were an action in equity, while all that he could properly do was to pass upon the validity and amount of the claim referred to him.

      Mowry v. Feet (88 N. Y„ 453) followed.

      Third. That if the deceased agreed to leave his property to the legatees of his wife, to be divided between them share and share alike, then the claim of each legatee was separate and distinct from that of every other, and they could not unite in a joint proceeding.

      fourth. That as the agreement was conditioned upon the agreement that the will of Eveline should not be admitted to probate, and as it appeared that the will had been admitted to probate, and, further, as the administrator of Eveline had recovered a judgment against the defendant for the note and money above mentioned, there was no consideration for the promise of Hiram to devise the property to the claimants.

      It seems, that, even, if the matter were in a court of equity, a case for decreeing specific performance was not shown, as there was no writing, and no such par^ performance as to lake the case out of the statute of frauds; nor was the alleged contract shown to be so fair and just that it should be enforced by specific performance.
    Appeal from a judgment, entered in Warren county, upon the report of a referee appointed to pass upon a disputed claim presented against the estate of the defendant’s intestate.
    This claim, which was presented by several persons against the estate of Hiram A. Ferguson, deceased, was disputed by the administrator and referred under the statute. Eveline A. Ferguson, wife of Hiram A., died about June 9, 1878, leaving a last will and testament. By this she disposed of “my note of six hundred dollars that Hiram Ferguson holds,” giving certain amounts to several persons. She also gave to several persons clothing and bedding, and also to Charles Myers $100 and to John Myers fifty dollars. After her death one Mary J. Marshall had possession of her will, and of her clothing and some money. In a conversation which she held with Hiram A. Ferguson, after his wife’s death, he said he was willing that the clothing should go as she devised; the furniture and money he wanted to keep, and would give that and all his property to the relatives of his deceased wife. None of the present claimants were present except John Myers.
    It seems that the note referred to was one made by Hiram A. Ferguson, dated May 10, 1873, payable at one year to his wife or bearer, with interest. The money was a little over $200. Two other witnesses testify to this conversation. George W. Nelson testifies to a conversation which he had with Hiiam A. after his wife’s death, in which Hiram A. said that he had made arrangements with the parties to whom the money and beds were willed not to go on and prove the will, and that after his death they should have what property he had and hers. Another witness testifies that, on another occasion, he said his property should be equally divided among those named in his wife’s will.
    Fliram A. died intestate August 10,1883, leaving an estate worth about $10,000, which was personal property, except a farm worth aborxt $1,500. After his death, and on the 22d of October, 1883, the will of Eveline B. was admitted to probate, and letters of administration with the will annexed were issued thereon, The referee has found that the plaintiffs were entitled to recover from the administrator all the estate, both real and personal, of Hiram A., after deducting expenses of administration and just debts The administrator appealed.

      Orin Gambell, for the appellant.

      W. B. French, for the respondents.
   Learned, P. J.:

It is quite obvious that there should be no recovery of the real estate of the intestate against the administrator. He has no rights therein, and a decision against him would not take the reai estate from the heirs. The referee has attempted to decree a specific performance of the alleged contract; as if this reference were an action in equity. This he could not do. There cannot even be a judgment against the claimant by way of counter-claim. (Mowry v. Peet, 88 N. Y., 453.) All that the referee can properly do is to pass upon the amount and validity of the claim; that is of a claim to be paid by the administrator in the course of administration. Clearly he cannot try an action for the enforcement of a contract specifically. Assuming for the present the existence and validity of the contract, the claimants assert that it was broken and that they are entitled to damages for the breach. This view was laid down in Peck v. Vandemark (99 N. Y., 29). In that case the plaintiff claimed that she married the testator on a promise that he would give her, by will, half of his property absolutely, and the other half, for life. And the court held that the amount of the damages should be ascertained, either on the trial of the case or after the administrator’s accounting. Again, there is no joint claim of these parties. If the alleged contract is so vague that the deceased was bound only to give his property to some of his wife’s relatives, and in such proportions as he might choose, then it would be impossible to ascertain what damages any one had suffered by the breach.

If, on the other hand, as is found by the referee, the deceased agreed to leave his property to the legatees of his wife, to be divided between them share and share alike, then the claim of each of said legatees was separate and distinct from that of every other. They bad no joint claim and could not lawfully unite in a j'oint proceeding. There are no pleadings and, therefore, the misjoinder cannot be set np by pleading.

The claim presented to the administrator in this case alleges a joint contract; that is, a contract to leave all the decedent’s property to the devisees and legatees named in the will of Eveline B., but the referee has found a several contract to give it to them share and share alike.

Agai:, assuming as before the existence and validity of the contract, it was conditional. The condition was that the will of Eveline B. should not be probated; that Hiram A. should keep the money and have the use of the beds for his life. But it is proved that the will has been proved and an administrator thereof has been appointed. Furthermore ; by an appeal argued at this same term, it appears that a claim of that administrator of Eveline B. for the note and money above mentioned was made to the administrator of Iiiram A. and was referred at the same time to the same referee who decided this case; tried on the same evidence and decided one day after-wards ; and the judgment on the decision entered at the same time with this. By that judgment the administrator of Eveline B. has recovered the money, the surrender of which was the alleged consideration for the contract on which this claim is brought. It is certainly somewhat inconsistent that the same referee should hold that the same legatees of Eveline B. had agreed that her will should not be p- oved and that they would permit the estate to remain in the hands of Hiram A. without payment of their legacies; that in consideration of this promise Hiram A. agreed to leave them all his property; and that the estate is liable for a breach of this promise, and is also liable for the money which these legatees agreed to surrender as a consideration for the promise. If their agreement was not binding, it is difficult to see where was the consideration for his. It is true that where a promisee does an act relying on a promise that in consideration thereof the promisor will do a certain act, such promise will be upheld. (Todd v. Weber, 95 N. Y., 181.) But, in the present case, what did these claimants do in reliance on the decedent’s promise ? They made no agreement to surrender their legacies and not to have the will proved. Nor did they, in reliance on the promise of decedent, surrender their legacies. And the will was proved. All that can. be said is, that for several years they did not take any steps to compel the proyi'ng of the will or to enforce their legacies. But it does not appear that they have lost anything thereby; especially since the administrator of Eveline B. has recovered a judgment from the avails of which their legacies are payable. ¥e have said that they made no agreement. The alleged wishes and promises of Hiram A. were mentioned to them or to some of them. But it does not appear that they made any promise on their part.

The claimants urge the specific performance of the contract. We have already said that a referee in these proceedings is not clothed with such equity powers as to decree a specific preformance of a contract to convey land. But even if this case were in a court of equity, a case for decreeing specific performance would not have been shown. First. There is no writing. Second. There is no such part performance as to take the case out of the statute. Such part performance always involves the condition that damages will not compensate; and that the parties cannot be indemnified by a money judgment. No such conditions exist here. The claimants could be compensated in money. - Third. The alleged contract is not so fair and just that it should be enforced by specific performance.

It is further urged that if the agreement is void by the statute of frauds, then the claimants are entitled to recover the money which they left in the hands of the intestate, $750 and interest. But the difficulties of this position are two-fold. First. If that money is payable at all it is payable to the administrator of Eve: line B.,'and not to her legatees. So the referee held in the other proceeding. Second. If payable to her legatees it would be payable to them severally and they could not join in a proceeding to recover it.

We think tne judgment must be reversed, reieree discharged, new trial granted; costs subject to final judgment of the court in respect thereto.

Bockes and Landon, JJ., concurred.

Judgment reversed, referee discharged, new trial granted ; costs subject to final judgment of the court in respect thereto.


author: Learned, P J -

text:
    JOHN H. STREETER, Appellant, v. CHARLES A. SHULTZ and Others, Respondents.

      Tenants in common — right of one tenant no purchase property on the foreclosure of a mortgage covering the interests of both — when an action to redeem will be barred by the acquiescence and laches of plaintiff — rights of a bona fide purchaser.

    In January, 1865, the plaintiff conveyed to Charles Shultz an undivided half of certain premises purchased hy the plaintiff in 1864, subject to a mortgage of $7,500 given by the plaintiff to secure the purchase-money. The plaintiff made brick on the premises which were sold by Shultz in New York, but the parties were not partners Thereafter the mortgage was foreclosed, the premises being sold to one Christie, who bid on behalf of, and who assigned his bid to Shultz, to whom a deed of the premises was executed by the referee on June 10, 1875. There was no agreement that Shultz was to buy for the joint benefit of himself and the plaintiff, and the price paid was the full value of the premises at that time. In October, 1877, Shultz obtained a grant from the State of land under water in front of the premises, and built docks and buildings upon the premises at an expense of $25,000, and thereafter conveyed the same to his two sons for $30,000. On May 4, 1876, the plaintiff conveyed all his personal property on the premises to Charles Shultz. In September, 1886, he commenced this action to redeem from the foreclosure an undivided one-half of the premises upon the payment of one-half the amount due on the decree and interest, and to compel the defendant to account for waste and damage and for rents.

      Held, that the fact that Shultz was a tenant in common with the plaintiff, having, however, no duties towards him other than such as necessarily arose from the co-tenancy, did not prevent him from purchasing the premises for his own benefit at the sale.

      Van Horne v. Fonda (5 Johns. Ch., 407) explained and distinguished.
    That the subsequent acts of the plaintiff, and his long acquiescence in the purchase by Shultz, would defeat his claim even if it had been originally good. That as the two sons were bona fide purchasers and took title from Charles Shultz, whose title originated in the mortgage, they were not chargeable with notice of the deed from the plaintiff to Charles Shultz, as it was not in the line of their title.
    Appeal from a judgment dismissing the complaiut, entered in Ulster county, upon the trial of this action by the court without a jury.
    This action was brought to redeem from a foreclosure sale the undivided half of certain premises, by the payment of one-half the amount due on the decree and interest, and aslcs that thereupon a decree be made that the defendants convey to the plaintiff such one-half, and, also, that they account for waste and damage and for rents.
    In December, 1864, the plaintiff purchased the premises for $8,500, paying $1,000 by notes and giving a purchase-money mortgage for $7,500. In January, 1865, he conveyed an undivided half to Charles Shultz, “subject to a mortgage of $7,500.” This purchase and conveyance were in pursuance of a verbal agreement between plaintiff and Shultz, that the land should be bought for their common benefit and that the manufacture of brick should be carried on upon it. They were not partners. But the plaintiff made brick on the premises and Shultz sold the brick in New York. They were tenants in common of the premises. The mortgagee foreclosed his mortgage, making plaintiff and wife and Shultz and others parties; and the premises were sold May 29, 1875", to Ilenry Christie for $7,000. Christie leased the premises that day to Has-brouck till January 1, 1876. Christie assigned his bid to Shultz and the deed was executed to Shultz by the referee June 16, 1875 The bid of Christie was, in fact, for Shultz.
    At the time of said sale Shultz held a mortgage executed by plaintiff and his wife on plaintiff’s undivided part of the property, on which there was payable $3,000 and interest from May 1, 1873, its date; and plaintiff was also indebted to Shultz in the sum of $1,000, no part of either of which amounts has been paid. There was no arrangement or agreement between Shultz and plaintiff that Shultz was to buy for joint benefit. The price for which the property sold was its fair value at that time.
    In October, 1877, Shultz obtained a grant from the State of the land under water in front of the premises; and he built docks and buildings on the property at an expense of $25,000. October 5, 1878, Shultz conveyed the property to his sons Charles A. and George S. for $30,000. They gave back a mortgage of $20,000 and have since occupied and improved the premises. On the 4th of May, 1876, the plaintiff conveyed all his personal property on the premises to Charles Shultz. The plaintiff never made any claim to the premises or to any interest therein from the date of the foreclosure till the commencement of this action in September, 1886.

      Charles A. Fowler, for the appellant.

      F. Wood, for the respondents.
   Learned, P J -

The plaintiff and Shultz were not joint-tenants, but tenants m common subject to the purchase-money mortgage. Their estates in the land wei\e separate and distinct. Each could sell his own share, and neither had any right in the other’s share. Shultz did not assume any part of the mortgage, and was not personally liable thereon.

The plaintiff insists that because he and Shultz were tenants in common, Shultz could not purchase for his own benefit on the foreclosure sale j but that such purchase must be for the common benefit of both. This position rests, not on the decision, but on some language in the opinion, in Van Horne v. Fonda (5 Johns Ch., 407) It is important to see what was decided m that case. Douw Ponda and Henry Fonda were “ joint and equal residuary devisees:” Henry conveyed in May, 1794, by deed, all his interest in certain lands to Douw This conveyance was held, as a matter of fact, to have been in trust, to facilitate the acquisition of a good title. Afterwards Douw purchased in his own name, from Moses Johnson, an outstanding title. The question, so far as the present case is concerned, was whether that purchase could be held to have been for his own benefit. In that connection the chancellor said : “ I will not say, however, that one tenant m common may not, in any case, purchase m an outstanding title for his exclusive benefit.” * * * " I have no doubt, therefore, that m a case like the present, and assuming what the evidence warrants us to assume, that the deed of May; 1794, was taken by the defendant (Douw) for trust purposes, that the purchase from Moses Johnson ought m equity to enure for the common benefit.”

It is true that more than this is said by the chancellor, but the question always should be, what was decided And if we look at the facts, we find that the defendant had taken a deed from his co-tenant for trust purposes, and was so holding their common title when he bought m the outstanding title Thus we have the case of a trustee dealing in respect to trust property

It is further to be noticed that in the opinion the acts of Douw Fonda are said to be those of a person "clothed with the office of an executor ” in respect to the estate of Henry, and also that the parties are spoken of as joint tenants and having a joint interest. The will of the ancestor was made after chapter 12, Laws of 1786. But whether m that case the devise made a •joint tenancy, or a tenancy in common is not clear. The distinction between the two is not considered. Of course the principle is familiar that one who is, in any sense, a trustee cannot purchase the trust property, or deal with it, for his own benefit. But the question in this present ca'se is whether a mere tenant in common, having no duties towards his co-tenants other than such as necessarily arise from the co-tenancy, may not purchase for his own benefit at a sale under a mortgage which .covers both estates. If there were two separate pieces of land each owned by one person and both covered by a mortgage; on a foreclosure either person might buy for his own benefit. The estates in co-tenancy are separate and distinct. What prevents each owner from acting for his oun benefit,.unless some further element of trust exists? The same policy of the law which (contrary to the old rule) construes estates as in common, if they are not expressly joint, gives each owner in common the right to act for himself, unless he has assumed some trust duty to his co-tenant.

No such duty existed in this case. The plaintiff had mortgaged his share to Shultz, and was. indebted to him besides. The foreclosure was open, and both plaintiff and Shultz were parties. It would be a great injustice to Shultz to hold that he could not buy for his own account If he could not, then he would be compelled either to allow the property to be sacrificed, if there were no bidders, or with his own funds to buy for the benefit of the plaintiff as well as of himself The plaintiff then would only need to keep still, and thus to throw the whole risk of the purchase on Shultz. Thus an irresponsible person might prevent his responsible co-tenant from protecting himself. We are satisfied that this is not the doctrine decided in Van Horne v. Fonda, and that even the language of the opinion does not justify this view.

There is another respect in which this case differs widely from that In that there was a private purchase of an outstanding title. In this there is a public purchase, known to the plaintiff, not of an outstanding title, but under a mortgage executed by the plaintiff himself, and the plaintiff’s opportunity to purchase at the sale was as good as that of Shultz.

Further than this the subsequent acts of the plam are an acquiesence in the purchase by Shultz. The transfer to him of the personal property, the acceptance of a position in the brick yard on the premises as foreman, the knowledge that Shultz was expending some $25,000 on the property, and the delay to assert any claim for eleven years — all these facts show a complete acquiescence. If the purchase by Shultz was, as plaintiff is said to have believed, for their common benefit, he should have asserted this promptly. Shultz, after the sale, held adversely to plaintiff, as plaintiff knew, and Shultz acknowledged no trust duties to him.

The plaintiff calls this action one to redeem a mortgage, and insists that twenty years is the-statutory limitation. (Code of Civil Pro., § 379.) But the position of defendants is not merely that of a mortgagee in possession. The mortgage was validly foreclosed by the mortgagee against the plaintiff. The plaintiff’s claim is, in fact, that the purchase by Shultz was, to the extent of one-half, for the benefit of plaintiff. This claim grows out of the co-tenancy, not out of the mortgage. Perhaps the true limitation is stated in section 382, subdivision 5. But it is unnecessary to decide that point. The plaintiff has permitted Shultz, as above stated, to make expenditures without objection; he has apparently waited until the property has increased m value. His long acquiescence would defeat his claim if it had been originally good. (Kirk v. Hamilton, 102 U. S., 68.)

There is still another objection to plaintiff’s claim. Charles A. and George S. are bona fide purchasers; they take title from Charles Shultz. His title came from the referee’s deed, and that title had its origin in the mortgage. In tracing their title, therefore, they did not necessarily see the conveyance made by plaintiff to Shultz; and they were not chargeable with notice of it, for it was not in the line of their title. They did not take title from Shultz as grantee from plaintiff of an undivided half, but from Shultz as grantee of the referee selling under the mortgage foreclosure.

The judgment should be affirmed, with costs.

Bockes and Landon, JJ., concurred.

Judgment affirmed, with costs.


author: Learned, P. J.: LaNdoN, J.: Bocees, J.

text:
    THE FIRST NATIONAL BANK OF CHAMPLAIN, Respondent, v. ORVILLE K. WOOD and Others, Appellants.

      Assignment by a firm for the benefit of its creditors— it cannot prefer notes given by {he fii'm for debts due to the members thereof.

    In 1876 two firms, one known by tbe name of O. K. Wood & Co. and tbe other by tbe name of Y. A. Wood & Co., having bad mutual dealings, bad a settlement upon which it was found that tbe firm of O. K. Wood & Co. was indebted to tbe firm of Y. A. Wood & Co., to settle which indebtedness it was agreed that the firm of 0. K. Wood & Co. should give its notes for one-half of such indebtedness to V. A. Wood, and for the other half to O. K. Wood. At the request of the said Y. A. and 0. K. Wood the notes were made to the order of members of their respective families, and were delivered by them to such members as gifts. On May 10, 1884, the firm of O. K. Wood & Co., and the individual members thereof, made a general assignment for the benefit of its and their creditors, in which these notes and other notes given annually for the interest accruing thereon were preferred.
    Upon the trial of this action, brought by a judgment creditor of the firm, the referee held that the assignment should be set aside as fraudulent on account of the preferences so given to these notes, but did not find that an actual fraud was intended, or that the notes were without consideration, finding only that they were not valid demands in the hands of the payees against the makers of them, the assignors. Upon an appeal from the finding and judgment, none of the evidence given upon the trial being brought before the appellate court:

      Held, that the judgment should be affirmed. (Bocees, J., dissenting.)

      It seems, that, as the evidence was not brought before the appellate court, it might, to sustain the judgment, presume that evidence was given showing that the firm of 0. K. Wood & Co. was, at the time of giving the notes, insolvent. - (Per Learned, P. J.)
    That as the notes were merely evidences of an alleged debt which the partnership owed to two of its members, and as the payees were not bona fide purchasers for value without notice, they were subject to all the debts of the firm, and to an accounting by the members thereof as between each other. (Per Learned, P. J.)
    That, assuming that the firm was solvent at the time the notes were given, and that the transaction between the fii'm and its members was then valid, it was the duty of the firm, on thereafter becoming insolvent and making an assignment, to pay its firm creditors, other than its own members as it in effect did by giving a preference to the said notes. (Per Landon, J.)
    Appeal by tbe defendants from a judgment, entered in Clinton county, on tbe direction of a referee.
    Tbe action was brought by tbe plaintiff, as a judgment creditor of tbe firm of O. K. Wood & Co., composed of O. K. Wood, Y. A. Wood and A. Gr. H. Wood, to set aside a preferential assignment made by tbe firm, of tbe firm property, to Hiram Clark, and also a like assignment of individual property made at tbe same time by O. K. Wood and by V. A. Wood, respectively, to tbe same assignee. Tbe referee to whom tbe case was referred to bear and determine, found in favor of tbe plaintiff, and directed judgment accordingly. Tbe referee found, among other facts, that, of tbe consideration entering into tbe plaintiff’s judgment, tbe sum of $1,500 accrued December 3,1879, and tbe residue thereof subsequent to that date; that during tbe continuance of tbe firm of O. K. Wood & Co. there was another firm in existence, composed of Yictor A. Wood and Orville K. Wood, doing business under tbe firm name of Y. A. Wood & Co.; that during tbe continuance of said firm of Y. A. Wood & Co. there were mutual dealings between that firm and tbe said firm of O. K. Wood & Co.; that in 1876, upon a settlement of tbe mutual deal between said firms, it was found that the firm of O. K. Wood & Co. was indebted to the firm of Y. A. Wood & Co., and to settle said indebtedness it was agreed that said firm of O. K. Wood & Co. should give its notes therefor as follows : That for one-half of said indebtedness, it should give its note to Y. A. Wood, and for the other half it should give its note to O. 1L Wood; and thereupon said firm of O. K. Wood & Co. made its promissory note for tbe amount so owing to Y. A. Wood, and at his request made tbe same payable to the defendant Julia P. Wood, his wife, and delivered tbe same to Y. A. Wood, who received the same, and immediately thereafter made a present of tbe same to bis said wife, who received and yet retains the same, said note being for $3,000; that said note has never been paid, but said firm gave to said Julia Wood its notes from time to time, up to and including the year 1881, for tbe accrued interest thereon; that for the amount owing to Orville K. Wood, said firm of O. K. Wood & Co. made its promissory notes, which, by the direction of said O. K. Wood, were made payable to certain members of bis family, to wit:
    To Mrs. Lizzie Lyons Wood, his wife, its note for tbe sum of $2,500.'
    To Addie M. Wood, bis daughter, its note for the sum of $1,650.89.

      To Frank E. Wood, bis son, its note for tbe sum of $1,799.98.
    To O. K. Wood, Jr., bis son, its note for tbe sum of $2,064.67; wbicb said notes were received by said O. ÍC. Wood, and by bim presented to tbe aforesaid members of bis family, to whom, respectively, tbey were made payable as free and voluntary gifts, except that in tbe notes to Annie M, Wood and Frank E. Wood, respectively, there was included tbe sum of $500 due them severally from the said firm of O. K. Wood & Co. for rent; that tbe said notes were received by tbe payees respectively, and were still held by them unpaid; and that each year, up to and including tbe year 1881, tbe said firm gave its promissory notes to tbe said payees for tbe accrued interest thereon, and that tbe assignments charged to be fraudulent and void were made May 10, 1884, and that said notes were therein given preference of payment.

      Beckwith, Barnard & Wheeler, for tbe appellants.

      R. Corbin, for the respondent.
   Learned, P. J.:

This appeal brings before us tbe judgment-roll including tbe referee’s report. But no case is made, and we have not tbe evidence before us. In Kellogg v. Thompson (66 N. Y., 88) it was said, that in such a case, tbe court must assume that the facts proved were sufficient to sustain tbe findings and also any additional findings necessary to sustain tbe conclusion of law not in conflict with the affirmative facts found. In Carman v. Pultz (21 N. Y., 551) it is said tbe referee’s reports are. not construed with tbe strictness which was applied at common law to special verdicts. Tbe court will presume nothing in favor of tbe party alleging tbe error ; but, if compelled, through tbe imperfection of tbe statement of facts to resort to presumption at all, will adopt such only as will sustain the judgment.

This doctrine is more fully stated in Murray v. Marshall (94 N. Y., 617). When tbe .evidence in a case is not brought’ before us on the record, and it does not affirmatively appear that no evidence was given wbicb would support tbe legal conclusion made by tbe court below, we are bound to presume in support of tbe judgment that such evidence was given. Tbe referee has found that the assignments of O. K. Wood & Co., and of Orville K. Wood and of Yictor A. Wood, individually, were fraudulent and void on account of the illegal preference stated in his report. At the time when the notes of O. .K. Wood & Co., were given to the wife of Y. A. Wood and to the wife and children of O. K. Wood, if the firm of O. K. Wood & Co. had been insolvent, then the preference of these notes would have been fraudulent, as the referee found it to be. So, too, if at that time O. K. Wood and Y. A. Wood had been themselves severally insolvent, they would have had no right to give to their respective relatives the alleged indebtedness to themselves of the firm of O. K. Wood & Co. These facts would not have been in conflict with the affirmative facts found, but fully consistent therewith. As is said in the cases above cited, the appellate court should, if necessary, presume, in support of the judgment, that such evidence as is suggested and which would support the legal conclusion was in fact given. For it is the duty of the appellant to show that the referee erred. And the omission of the referee to find all the facts needed to support his conclusion of law is not necessarily error. If the appellants claim that the evidence in this case does not show that the assignments are void for fraudulent preferences they should show what the evidence was. Aside from this, however, we think the conclusion of the referee was right.

The case of Cole v. Reynolds (18 N. Y., 74) held that one firm might sue another, although a certain person was a member of each. It may be doubted whether that decision would permit one member or two members of a firm to recover a claim against the firm without an accounting. If O. K. Wood & Co. did owe Orville K. and Yictor A. either jointly or severally, the firm may have owed Albert G. H. Wood more; and it would not be just that either one partner or two partners should thus get a preference over the third without having an accounting. But however that may be, the notes which were given were merely evidences of the alleged debt which the partnership owed to two of its members. Making these notes payable to the wives and children of these partners did not change the character of the debt. The payees were not bona, fide purchasers for value without notice. Assume that the notes operated to transfer the claim to the payees, still the nature of the claim remained the same, viz., money owing by a partnership to one of its members. It was like the money put into the partnership by each. It was so much standing to the credit of those members of the firm. It was subject to an adjustment by accounting between the partners, and it was, first of all, subject to the payment of the debts of the firm —• debts which Yictor A. and Orville 3L owed as members thereof. Suppose that Orville K. and Yictor A. had made a transfer to their respective wives of their respective interests or capital in the firm. Could the firm, on becoming insolvent, prefer these wives to the extent of the interests of Orville K. or Yictor A. when they made such transfer ? We think clearly not. The present transaction is substantially the same.

We think, therefore, that for both tne reasons given the judgment should be affirmed, with costs.

LaNdoN, J.:

When O. K. Wood & Co., consisting of three members, gave theiT- notes at the request of two members, to members of their families, in consideration of the indebtedness of the firm to each of the two members, we may assume an account stated and that as between the firm and the two members the transaction was valid. We may assume the firm was then solvent. No property by this transaction was withdrawn from the firm. The notes are not paid. After a time the firm becomes insolvent and makes an assignment. Its duty is to assign its firm property to pay its firm creditors, other than its own members. But it gives preference to these notes, and thus proposes to withdraw from the firm property enough of it to pay these notes. Thus the holders of these notes who obtained them by gift from the members of the firm propose to take firm property, at the expense of firm creditors, sufficient to make these gifts good. They were not gifts of property, but gifts of promises, and they should be rated at their legal value as gifts of promises. The present holders say to the other creditors of the firm, your valid claims against the firm must, in law and equity, wait for such scanty dividend as may or may not be declared from the firm assets after'the firm’s promises to pay two of its own members shall have .first been fully paid to us, although these promises cost us nothing. Tbe case is the same as if the two members of the firm still held the notes. The holders of the notes stand in their shoes. And as the law would not permit the firm, at the expense of its creditors to prefer two of its own members, it will not permit the ureference to those who stand in their shoes.

The judgment should be affirmed.

Bocees, J.

(dissenting).

The case is before the court on the record containing the pleadings, the findings of the referee and judgment thereon, with exceptions, but without any of the evidence given on the trial. The errors, therefore, if any there be, are to be sought for in the referee’s findings, or in his omissions to make findings-necessary to the support of the judgment. * * *

There is no finding of actual intended fraud in the making of the assignments ; nor is it found that the notes were without consideration ; only this, that they were not valid demands in the hands of the payees against the makers of them, the assignors; and that consequently the preference of payment given them in the assignments rendered those instruments fraudulent and void in law as to the plaintiff and its judgment. But how were the notes invalid in the hands of the payees ? They were made oil good and sufficient consideration, and as property they were legal subjects of gift; and the gift of them was none the less valid because made by husbands to their wives and families, respectively, when in so far as is made to appear there were no then existing creditors of the donors to gainsay it. A husband is authorized to make a suitable provision for his wife and family, and if made without fraudulent-intent or purpose it- will be sustained. (Carr v. Breese 81 N Y., 584, and cases there cited; Whiton v. Snyder, 88 id., 299; Armitage v Mace, 96 id., 538.) But it is urged that the notes but represented claims or demands in favor of O. K. and V. A. Wood, respectively, against a partnership firm of which they were members, and, therefoie, not enforceable without an accounting between its members; and this even without its insolvency. The case of Cole v. Reynolds (18 N. Y., 74) holds to the contrary. In that case two firms, in each, of which A. was a partner, stated an account of their mutual dealings; and it was held that an action could be maintained by the creditor firm against the debtor firm for the balance found due the former from the latter on the accounting. The difficulty urged in that case, answered and overcome by the decision, was the technical one existing at common law that a man cannot sue himself. As there held this difficulty is not, under our present system of jurisprudence, law and equity being united, insuperable, but partnerships are to be treated as having distinct existences, each having its own distinct rights and interests. So the rule laid down by Story, there received approval, that the court, would treat different firms tor the purpose of substantial justice, exactly as if they were composed of strangers or even in fact corporate companies.

But the difficulty urged (but overcome by the decision,) in Cole v. Reynolds does not exist in this case at all. The facts here carry the case clear even of what was there sought to be made effective as a defense. Here, as in that case, there was a settlement between the firm of their own mutual dealings, and the two firms put themselves in the position of debtor and creditor. From this point the present case differs from Cole v. Reynolds and the difference is favorable to the legal integrity of the notes given by the debtor firm for the balance found due from it to the partners in the creditor firm. Notes fon this balance were, by consent of all the parties, all the members of both firms, given by the debtor firm to third parties. Now the technical difficulty in bringing suit, because at common law a man cannot sue himself is out of the way, and the promise of the debtor firm to the payees rested upon a good and sufficient consideration'. Thus the giving of the notes by the debtor firm to third parties by direction of the members of the creditor firm, operated as payment to the two members of the latter firm ; and so the referee correctly found. It seems, therefore, beyond peradventure, that the notes were legal, valid obligations in the hands of the payees against the debtor firm, hence might be legally and equitably preferred for payment in its assignment.

This conclusion necessitates a reversal of the judgment.

Judgment reversed; new trial granted; costs to abide the event, and referee discharged.

Judgment affirmed with costs.

       The findings of the referee which were here stated are given, in the statement of the case


author:
Bogles, J.:
      LaNDON, J.: LbaeNed, P. J.

text:
    In the Matter of Proving the Last Will and Testament of HIRAM VOWERS, Deceased.

      Will — construction of a clause requiring a, widow to elect between dower and a provision made for Tier by the will.

    By his will the testator gave his wife, the appellant, tne use of his house and ' the furniture therein for life and an annuity of fifty dollars, such provision to he accepted by her ‘‘ in lieu of her dow&r and distributive shm'e in my (his) estate; she to make her election whether she accepts this provision in. my will within sixty days from the time of proving the same.” All the rest and residue of his property ho gave and devised to a nephew.

      Held, that a claim made by the widow that she was given a right of election, either to accept the provision for her in the will or to refuse it and take dower and a distributive share, as if her husband had died intestate, was not well founded.
    That if she did not accept the provision she was entitled to dower only. (Learned, P. J., dissenting.)
    Appeal from- so much and that part of the decree made by tbe surrogate of Warren county, bearing date the 28th day of September, 1886, admitting to probate the will of Hiram- Vowers, which determines the construction which should be given to a provision contained therein relating to the widow of the testator

      S. & L. M. Brown, for the widow, appellant.

      A. Armstrong and Charles Hughes, for the proponent, respondent.
   Bogles, J.:

By the will the testator gave his wife, the appellant, the use of his house and furniture therein for life and an annuity of fifty dollars; such provision to be accepted by her “ in lieu of her dower right and distributive share in my estate ; she to make her election whether she accepts this provision in my will within sixty days from the time of proving the same.”

It is claimed by the appellant that the widow was given a right of election, either to accept the provision for her in the will, or to refuse it and take as if her husband had died intestate. The widow bases her claim on the will, that is, that she is (not in terms, but by implication) thereby given a right of election either to cake the use of the house and furniture and the annuity, or to have her dower and a widow’s distributive share in the personalty; that such choice is given her by the will itself. We do not think the language employed will bear this construction. There is no right of election or choice given to the widow to have one thing or the other, certainly not in terms. This latter is conceded. Nor is a right of election or choice given by fair implication. The gift of the use of the house and furniture, with the annuity, is absolute in terms. The right of election to accept or reject tins provision for her in the will and to have dower instead, is one given by statute, and this, of course, the testator understood. So he then added, in effect, that he made the provision for his wife as a • substitute for what she would have been entitled to had he died intestate, recognizing her right of election between the provision in the will and her right of dower secured to her by the statute. If she elected to take dower, the provision in the will, declared to be in lieu of dower, would go for nothing and she could have only what she would be entitled to by law, in disregard of the will, whether by implication or otherwise. This would follow, inasmuch as the provision rejected was entire, embracing all that the will gave her. There is here no gift of dower and distributive share in the estate in lieu of some other provision at her election.

The language but declares the intention of the testator to the effect that the provision, if accepted, would be in full and bar all claim of widow to his property and estate. If not accepted, nothing would then be given her by the will and she could take only, despite the will, that is, her dower protected to her by the statute. This conclusion is, as'we think, supported by the reasoning of the court in O'Hara v. Dever (46 Barb. 609; affirmed in the Court of Appeals, 2 Keyes, 558). A bequest by inference or implication, will be held to exist only when it is within the obvious intention of the testator and has failed to receive explicit declaration in the will. It will not be held to exist in a case of mere slight probability, but only when the language employed and all the circumstances taken together leave no doubt in the mind. (2 Redf. on Wills, chap. 1, § 14.)

Our conclusion is that the casé in hand does not show a bequest to the widow by implication, hence the decree appealed from should be affirmed with costs of appeal against the appellant.

LaNDON, J.:

I concur,' The “ distributive share ” was not given by the testator to'his widow, and if we insert it as a gift by implication, we may make a gift for him which was not at all within his intention.

LbaeNed, P. J.

(dissenting)

“ Dower ” is the interest for life which the widow has in one-third of her husband’s real estate. “ Distributive share ” means the share which a person takes in personal property, in case of intestacy. Mr. Vowers made a provision for his wife and then said: “This provision to be accepted by my wife in lieu of her dower right and distributive share in my estate. She to make her election whether she accepts this position in my will within sixty days,” etc. What did he mean that she should have, if she did not accept this provision ? Not simply dower, because he adds “ and distributive share in my estate.” We have no right to disregard these words as meaningless. They have a definite meaning, and in the absence of proof to the contrary, we must suppose that the testator used them with that meaning. Further, instead of leaving his widow the statutory time to elect whether she would take the provision in lieu of dower, he provided that she should make an election within sixty days whether she would take this provision in lieu of dower and distributive share. This speedier election was important, if not necessary, if she was in one event to have a distributive share of the personal estate. Because at the end of the year, the general legacies would be payable. And this requiring a speedy election is some indication of the testator’s intent that she would, if she chose, have a distributive share of the personal estate. Then he must have expected that, if she did not take his provision, she would have both dower and her distributive share. Either this was his view or else he used the words “ distributive share ” as synonymous with dower right.” If the testator had expressly said : “ If my wife does not accept this provision then I give her her dower right and distributive share in my estate,” there would' probably be no doubt that she would have taken a share in the personal estate as in intestacy.' (O'Hare v. Dover, 3 Abb. Dec., 407.) It seems to me that this is what he meant. There is no devise and bequest of the whole of his property to the nephew. The nephew is only given the rest and residue; that is, the rest and residue after the widow has made her election.

We have no proof as to surrounding circumstances, showing the amount of property and the like. The only fact that may be plainly inferred is that the deceased had no descendants. He, therefore, wished to provide for his widow first of all. He gave her a life estate in house and furniture and fifty dollars a year. But if she did not chose to take that, then she was to have her dower (which could not be taken from her without her consent), and that share of the personal estate which she would have had in case of intestacy. Very possibly the testator set the two things opposite each other in his mind, thus: Either the life estate in house and furniture, or dower in all the real estate. And either the fifty dollars annuity, or the distributive share of the personal. It is not a question as to the testator’s dying intestate m respect to any of his property. The only question is whether he does not fairly imply that, if she does not accept this provision, she is to have what would be her distributive share in case of intestacy. In other words, did he not mean that she might take the testamentary provision, or, if she preferred, she might take just what the law would have given her of real and personal, in case of intestacy. It is hardly necessary to refer to the principle that wills are to be construed favorably towards the widow of the deceased. I think the testator intended that the widow, if she chose, should have her distributive share. If such intent can be found in the will, there is a legacy by implication. Therefore, I think the decree should be reversed in this respect.

Decree affirmed, with costs against appellant.


author: Landoh, J.: Learned, P J ,

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. OSCAR F. BECKWITH, Appellant.

      Murder in the first degree — direct proof of the death of the person alleged to he hilled required by section 181 of the Penal Code, as amended in 1882 — what evidence justifies the finding of a deliberate and premeditated, design to effect death.

    Upon, an appeal by the defendant from a judgment and sentence upon his conviction' of murder in the first degree, it was claimed by Ms counsel that there was no " direct proof” of the death of the person alleged to have been hilled, as was required by section 181 of the Penal Code, as amended in 1882.

      Held, that as the homicide was committed before the Penal Code took effect, it was competent to establish the identity of the dead body with the person alleged to have been killed by presumptive proof; that is, by facts and circumstances tending to establish the identity, and sufficiently convincing to exclude all reasonable-doubt.

      It seems that, even in a case which should be governed by section 181 of the Penal Code, the requirement that the death of the person alleged to have been killed should be established ‘‘by direct proof” should not be held to exclude points and features of resemblance and circumstances tending to establish identity, as the legislature could not have intended to require any higher proof than the nature of the case would admit of. (Per Landon, J.)
    The evidence in this case considered and held to be sufficient to justify the defendant’s conviction of the “deliberate and premeditated design to effect” the death of the person killed, as required by section 183 of the Penal Code, to constitute murder in the first degree. (Learned, P. J., dissenting.)
    Appeal by tbe defendant from a judgment and sentence upon bis conviction of murder in tbe first degree at tbe Columbia County Court of Oyer and Terminer, in February, 1887, for tbe killing of Simon A. Yandercook, on tbe lOtb day of January, 1882, at tbe town of Austerlitz, in said county.

      L. F. longley, for tbe appellant.

      A. B. Qa/rdenier, district attorney, for tbe respondent.
   Landoh, J.:

Tbe prisoner was convicted of murder in tbe first degree. Tbe indictment charged that Simon A. Yandercook was the person murdered. We are confronted upon tbe threshold of our examination with the objection that the statute requires direct proof of the death of the person alleged to have been killed, and it is alleged that there is no direct proof that Simon A. Yandercook, the person here alleged to have been killed, is dead. There is direct proof that a man in many respects resembling Simon A. Yandereook is dead; there is circumstantial evidence sufficient to satisfy the mind beyond a reasonable doubt that such person was Simon A. Yander-eook; but the question remains, is there such direct proof of his death as the statute requires ?

Section 181 of the Penal Code provides: “ No person can be convicted of murder or manslaughter, unless the death of the person alleged to have been killed and the fact of killing by the defendant, as alleged, are each established as independent facts ; the former by direct proof, and the latter beyond a reasonable doubt.” This section of the Penal Code, as enacted in 1881, did not contain the words which we have placed in italics/ these were added by amendment in 1882.

This homicide was committed on the 10th day of «anuary, 1882. The Penal Code, although passed July 26,1881, did not, according to its last section (727), take effect until the 1st day of December, 1882, and when it took effect, section 181 had already been amended in the particular mentioned. But section 2 provides that “ Any act or omission begun prior to that day (Dec. 1,1882), may beinquired of prosecuted and punished in the same manner as if this Code had not been passed.” The identity of the dead body as the body of Yandercook might, therefore, be established as at common law.

The commissioners, in framing the section as it was enacted in 1881, as we learn from the note appended to section 238 of their draft of the Penal Code as published in 1864, intended to state the rule as announced in Ruloff's Case (18 N. Y., 179). But it is manifest that they failed to do so. The rule in Buloff’s case was announced to be that a conviction for murder cannot be permitted “ without direct proof of the death, or of the violence or other act of the defendant which is alleged to have produced death.” This direct proof of the death was declared to be either the production of the dead body , or direct proof of the violence which caused the death and also caused the destruction or disappearance of the body so that it could not be produced, as in the case of sinking the body in the sea or consuming it by fire,

But section 181 really permitted proof - of the death by circumstantial evidence.; because circumstantial evidence, if sufficient and convincing, is competent, unless tbe statute forbids, to prove any fact beyond a reasonable doubt. It was obviously intended by the amendment of 1882 to make the section actually conform to the rule, with respect to death, which is announced in Buloff’s case. JBut the section as it now stands requires direct proof, not only of the death but also of the identification of the dead body found or produced with the person named in the indictment as the person killed.

Rulofi: was convicted of the murder of his child. The dead body of his child was never found, and there was no direct evidence of his murderous violence to the child, or of his destruction of or secreting its body. But there was indirect or circumstantial evidence sufficient to satisfy the jury that he first murdered his child, placed it in a box and put iron enough in the box to make it sink in the water, and sunk it in the deep water of a lake. But the Court of Appeals reversed the conviction, holding that until direct proof of death was adduced, either by proof of finding the dead body or of the violence which caused its death, there was no occasion to inquire into the guilty agency of the prisoner.

The question of the identification of a dead body with the person named in the indictment as having been killed did not arise in the case. Such a question, however, did arise in Dr, Webster's Case (5 Cush., 295), and circumstantial evidence or indirect proof was resorted to to establish' the identity of the nearly consumed remains of Parkman, the man alleged to have been murdered. Also in People v. Wilson (3 Park., 199); Regina v. Cheverton (2 Foster & F., 833). Greenleaf on Evidence (vol. 3) states the rule thus: Sec. 133. But though it is necessary that the body of the deceased be satisfactorily identified, it is not necessary that this be proved by direct and positive evidence if the circumstances be such as to leave no reasonable doubt of the fact.”

The identitity of the dead body of Simon A. Yandercook was, by the evidence adduced, established beyond a reasonable doubt. As the homicide was committed before the Penal Code took effect, we think it was competent to establish the identity by presumptive proof, that is by facts and circumstances tending to establish the identity, and sufficiently convincing to exclude all reasonable doubt. But if tbe case should be governed by section 181 of tbe Penal Code, we do not think direct proof” of identity should be held to exclude the points and features of resemblance, and circumstances tending to establish identity.

Here the head of the dead body had been consumed by fire. One of Yandercook’s hands and one of his feet had peculiar marks as of some injury. The corresponding hand and foot of this dead body had also been consumed. Witnessess to whom the head and hand and foot were familiar, might well hesitate to testify directly “this is the body of Yandercook,” and yet be able to give direct evidence of facts and circumstances amounting to what we usually call presumptive or circumstantial proof of identity, and which might be sufficiently convincing to satisfy the mind beyond all reasonable doubt. Indeed, one witness might give one fact) and another witness another, and the sum of the facts might make a much stronger case for the jury than some witnesses would need to enable them directly to say “this is the dead body of Yander-cook.” In whatever form stated, proof of identity in such cases is a matter of opinion based upon the witnesses’ impression of the sameness of, or resemblance between the body seen, and his mental picture of the person alleged to have been killed. However directly he may testify, he gives but an opinion or impression induced by the facts upon his mind. When he says “ this body is Yandercook ” he means “I think it is; I believe it is; ” and, strictly speaking, we have only direct proof of what he thinks and what he believes, not what the fact sought actually is. Hence we think when the legislature required direct proof of the identity, they could not have intended to require any higher proof than the nature of the case would admit of. Such proof was given in this case, and we think justified the finding of the fact of the identity.

it is objected that conceding that the defendant killed Yander-cook, there is no evidence of the deliberate and premeditated design to effect his death ” required by the statute (Penal Code, § 188), or if any, not sufficient to justify a conviction of murder in the first degree.

The defendant lived alone in a small cabin on a mountain near what he supposed to be a gold mine which he had discovered. A company had been formed which obtained the title to the mine and land about it. Yandercook became tbe manager of the mine, and the defendant either was, or supposed he was, excluded from any interest in it. Yandercook boarded in the family of Harrison Calkins, who lived about half a mile away. He had boarded there about three years before the homicide. Not much work had been done in the mine, but Yandercook cut off the wood from the lot and used the proceeds. The defendant became dissatisfied and had said-to others, respecting Yandercook, that he would like to put him out of the way and suck his heart’s blood , that he would like to get some one to do it; that anyone who knocked Yandercook over would get two or three hundred dollars. Some of these statements were repeatedly made. Yandercook was last seen alive about eleven o’clock in the forenoon on the 10th day of January, 1882, near the cabin of the defendant. Two days later some neighbors broke into this cabin and found there Yandercook’s dead body, with the exception of his head, left hand, one foot, and part of his spinal column. The body had been cut into lengths or pieces apparently to fit them to be burned in the stove which was in the cabin. The examination of the ashes in the stove disclosed charred fragments of bones, apparently those of the missing parts of the body, also of woolen clothing. About four o’clock of the afternoon of the tenth of January, Beckwith called at the house of Mr. Calkins, and stated to Mrs. Calkins that Yandercook had gone away with a man from Green river to get up a stock company and would not be back until March. Mr. Calkins visited the defendant in his cabin that evening As he approached it he perceived an unusual odor as of something burning, When he entered the cabin he found the stove red hot, and heard something frying or crackling within it, and, upon asking defendant the cause, the defendant answered that he was burning pork rinds. Calkins went away and the defendant was not again seen in that neighborhood,. It subsequently transpired that he fled to Canada and lived there under the name of White When he .was arrested, some small articles, identified as Yandercook’s, were found in his possession. The examination of the body of Yander-cook disclosed a cut as of a knife entering the back beneath the shoulder blade and penetrating to the right lung. The physician testi ■ fied that the ecchymosed condition of the lung indicated that Yander-cook was alive when he received this cut, that it would greatly shock and weaken, but would not instantly kill him. Two axes were found in the cabin, one much covered with flesh; on the head of the other were a few short gray hairs, Yandercook’s hair was short and gray The defendant, being m jail, stated to some visitors that Yandercook came to his cabin ; that they had a tussle and Yan-dercook got the worst of it, that Yandercook got killed m his house; that he knew who did it, but he did not, that he got chopped up. With respect to the defendant’s statement it is proper to say that while the law requires all of it to be considered, it is powerless to compel a jury to believe the portions of it that they discredit.

Yandercook was a much larger, stronger and more active man than the defendant. The jury obviously came to the conclusion that the threats of the defendant indicated his hostile feeling towards Yandercook, that the idea of killing him was often present to his mind, and was much deliberated upon by him, That when Yandercook came to his cabin, whether an altercation or tussle occurred between them or not, the defendant took this opportunity to stab him in the back , that this wound was not sufficient to kill him instantly, and that he completed the homicide by striking him on the head with one of his axes The other circumstances of the case no doubt strengthened their conviction of the capacity of the defendant to commit such a crime, and that he did it with premeditation and deliberation. The statement of these circumstances seems to carry its own argument, and discussion is not useful. We think the evidence justifies the verdict.

Harrison Calkins was a material witness on the part of the prosecution On his cross-examination he testified that the relations between Yandercook and defendant were friendly so far as he knew. He was asked if he did not state to Dr. Hulette upon the highway, in the presence of Mrs Hulette, that they (meaning himself and Yandercook), were not doing anything with the mine now , that that half crazy Beckwith was bothering them and they could not do anything with it. He answered he did not remember any such remark. Mrs Hulette was called by the defendant’s counsel and asked, in substance, if Calkins did not say so Objection being made it was sustained, and we think properly It was competent for the prisoner’s counsel to prove by the witness, by way of discrediting him, that he had made a statement out of court contrary to bis testimony m. If ihe witness should deny or testify that be did not remember making sucb contradictory statement, it would -be competent to prove it by another witness. .The prisoner’s counsel here did not seek to prove, either by the witness Calkins or by, Mrs' ITulette, any statement that Vandercoolc and defendant’s relations were unfriendly, but that Calkins had said that that half crazy Beckwith was bothering them and they could not do anything with the mine, a statement, which, if made, was expressive of Cálkin’s estimate of defendant and his conduct, but not proving that'his sworn statement was opposed to his conversational one.

Whether Calkins had made the latter statement was immaterial, and not the proper subject of an issue. (Carpenter v. Ward, 30 N. Y, 243.) The motion m arrest of judgment upon the ground of irregularity does not appear to be supported by proof of the irregularity alleged.

-Wo think the conviction and judgment should be affirmed.

Bockes, J., concurred.

Learned, P J ,

(dissenting):

Under the Bevised Statutes murder was killing, perpetrated from a premeditated design to effect death. Manslaughter in the first degree, killing without a design to effect death, while, etc. Under the Code,- murder m the first degree is killing, when committed from a deliberate and premeditated design to effect death; in the second degree, when committed with a design to effect death, but without deliberation and premeditation. I cannot but think that the decisions of the courts have gone far to abolish the distinction which the legislature intended to make by the emphatic, adding of deliberation" to 'premeditation." When it is said that such design must precede the killing by some appreciable space of time, but the time need not be long„ that the mind works with a. celerity which it is impossible to measure and the like, it appears to me that the distinction of the statute is practically ignored. An opinion of a court which was reached with such celerity of the •working mind that only a mere “• appreciable space of time " should intervene between the argument and the decision, would hardly be called a deliberate and premeditated opinion. And m this very case an act done by the prisoner was. on the former trial, pronounced to be deliberate and premeditated, winch was performed ift S.o.short a time that, if it had been any other act than that of taking human life, it would have been called hasty and not deliberate,, suddenly conceived and not premeditated. And if the learned fudges' who affirmed the former conviction; had 'taken no. moro time to consider the case than the defendant took, according to .the testimony, to do-the act, they would not have thought that] they were acting -with deliberation and premeditation. Murder by poison or lyinginwait. is almost necessarily deliberate and premeditated. Murder committed during a quarrel or a fight is not? in any fair or reasonable meaning oí the words. And if it be said that one may deliber ate, about an. act and premeditate it in any such- brief time as- a second or two, a mere space of time than that can be appreciated, then it, seems to me that the true meaning of words is disregarded. And I think that the decisions on tbe statute, as it now stands, show an unwillingness to accept its merciful and humane consideration for hasty and suddenly conceived crime. But we must take the decisions as they are, trusting that a jury, when they deliberate on their verdict, will understand the meaning of that word

In considering this ease, I assume that Yandercook was killed; that he was killed in Beckwith’s cabm and by Beckwith’s hand; that Beckwith had at some previous time threatened to take Yan-deicook’s life: I even assume that Beckwith's attempt to conceal the body and his flight are some evidence that he thought he had committed some crime. What is there in all these facts that is not as consistent with the theory that the crime was murder in the second degree or manslaughter in the first degree, as with the theory that the crime was murder in the first degree ? Where is the proof of the deliberate or premeditated design for even one second before the killing 2 Where is the proof of the design to. effect death at all? Tlie blow from the knife was not immediately fatal, if at'ail; It might have been given with a design to kill, but- without deliberation or premeditation. It might have been given m the heat of passion. What right have we to say that it was not sc given ? The fact that it was given upon the back. does not show that it was not m the heat of passion. The previous threats snowed bad feeling. And if there had been any proof that Beckwith had induced Yandercook to cometo bis cabin on the occasion, then it might bo said that such proof showed deliberation and premeditation. But nothing of this kind appears Yandercook may even have been an intruder and unwelcome He may have come to irritate and abuse Beckwith Indeed it is given m evidence by the prosecution that Beckwith said that Yandercook burst the door open and got hurt; that they had a tussle and Yandercook got the worst of it,, Now there is nothing to contradict or discredit this statement of Beckwith; put m evidence by the prosecution

Undoubtedly, previous threats may qualify and give a character to the circumstances which surrounded the killing But in this case we do not know the circumstances. The killing may have been done in the heat of passion, without design to effect death, or even m self-defense , so that the threats (which really seem to have been idle talk) do not characterize any circumstances. If Beckwith had provided 3, weapon, if he bad lain m wait, if he had sought Yander-cook, then these threats would have had force. Two axes were found , one had hairs on it, the other flesh and blood. But. it does not appear that these were used m killing Yandercook- The mutilated condition of the body sufficiently accounts for the appearance of the axes The mutilation was done after death I am unable to find, and I am not referred to any evidence tending to show, that Beckwith struck Vandercook, while living, a blow with an axe. In this respect the present case differs from the case as it was on the former trial Then evidence was given by Beckwith himself that he killed the deceased by the blow of an axe So it is stated by the Court of Appeals, and they say “the axe was wielded with a settled design to kill" And on this deliberate selection and use of this weapon the decision of that court largely rested,, (People v Beckwith, 103 N. Y, 365.) No such evidence is now before us

This is a case m which there is dangex that the feelings of the jury and of the court may be excited by the mutilation committed on the body of the deceased, evidently for the purpose of conceal ment., But the crime had been completed before this mutilation was done. The mutilation is shocking to our sensibility and to our respect for the dead, but it does not affect the degree of the crime. An attempt to conceal evidence is some indication of guilt; yet even a person conscious of innocence may fear the result of a trial At any rate, the crime was done when Yandercook was killed. Whatever followed, however shocking, should not disturb our calm judgment, nor convict Beckwith of a crime greater in degree than the proof justifies We have no right, nor had the jury, to find premeditation and deliberation without evidence; and that evidence must show that the very act of killing was done with a deliberate and premeditated design to effect death. £i An act co-existent with and inseparable from a sudden impulse, although premeditated, could not be deliberate, as when under sudden and great provocation one instantly, although intentionally, kills another ” But the statute is not satisfied unless the intention was deliberated upon. (Leighton v People, 88 N Y., 117.) There must, then, be evidence on which the jury could find that Beckwith not only intended to kill, but deliberated on that intention I do not see such evidence m the case And here it must be noticed that the court charged the jury that, in proving the statement made by defendant as evidence of the killing of Yandercook by the defendant, the people are bound by defendant’s narrative in the same statement of the fact that such killing occurred m a tussle, which followed Yandercook's breaking into the cabin, unless that circumstance is proved untrue by other proof; and further that, with the fresh provocation of Yander-cook’s breaking into the cabin, proved m this case, the jury have no right to find that the killing was upon any previous malice. The jury, therefore, was instructed to find that the killing was not of any previous malice, but occurred in a tussle which followed Yandercook’s breaking into Beckwith's cabin They must then have found the deliberation and premeditation from something which happened between the time when Yandercook burst into the door and the time when he was killed As above remarked, there is no evidence of what took place then, except the fact of a stab with the knife

It seems to me that the judgment should be reversed, and a new trial granted upon the facts.

Judgment and conviction affirmed.