text:
    JOSEPH ISEMAN, Plainttff, v. JEREMIAH MYRES and JACOB W. GETMAN, Executors, etc., of MOSES ISEMAN, Deceased, and Others, Defendants.

      Bequest to a town — when void as creating a perpetuity — Bight of masonic ■societies to hold property in perpetuity — 1866, chap. 317 — Bequest to a sclwol district— when the fund should be held, by the supervisor.

    A testator gave and bequeathed " to the town of Columbia, in its corporate capacity, the sum of one thousand dollars to be forever invested-by the town board or officers of said town having charge of the financial matters of said town from time to time, and at all times hereafter on real estate worth at least double the amount loaned thereon, the interest to be regularly collected and applied annually by the town officers of said town towards the support of the poor who are supported by the said, town, the intention that the said interest shall annually form part of the poor fund of said town.”

      Meld, that the bequest was void as creating an unlawful suspension of the absolute ownership of personal property. .
    Chapter 317 of 1866, providing for the election of throe trustees for any lodge or chapter of Free and Accepted Masons, and authorizing them to take, hold and convey real and personal property, relieves them from the effect of the general statutes of the State against perpetuities.
    A testator, by his will, gave and bequeathed to the school district in which he resided, “the sum of three hundred dollars, to be forever loaned by the town officers mentioned in item sixth, and the interest thereon to be annually paid by such officers to the trustees of said school district, to be by them applied towards the support of the school in said district.” By the sixth-item of his will he directed the money to be invested by the town board or officers having charge of its financial matters. '

      Meld, That the bequest was valid under section 16 of chapter 555 of 1864.
    That it was the intention of the testator to authorize the supervisor of the town to invest the fund and pay over the income to the school district, and that the executor should pay over the legacy to him.
    Controversy submitted under section 1279 of tbe Code of Civil Procedure.
    On tbe 4th day of May, 1880, Moses Iseman tbe testator died, tben being an inhabitant of tbe town of Columbia, Herkimer county, leaving a last will and testament wbicb was duly admitted to probate by tbe surrogate of Herkimer county on tbe 19tb day of July, 1880. On tbe 22d day of October, 1878, at tbe town of Columbia, Herkimer county, the testator duly made and published bis last will and testament-which, was admitted to probate as aforesaid. The questions arising between the parties relate to the sixth, seventh and ninth provisions of the will of the testator.
    The submission states that the “ Richfield Springs Lodge of Free and Accepted Masons No. 482, mentioned and referred to in the ninth clause of said last will and testament as a legatee thereof, having been duly chartered and installed according to the general rules and regulations of the general lodge of Free and Accepted Masons of the State of New York, being desirous of having the benefit of the act of the legislature of the State of New York, entitled ‘An act to authorize lodges and chapters of Free and Accepted Masons to take and hold and convey real and personal estate,’ passed April 2,1866, did on the 26th day of January, 1867, * * * elect three trustees for said lodge for the purpose aforesaid, a certificate of which election and purpose was duly made and subscribed by the first three elective officers of said lodge, * * * and all the requirements of the law complied with * * * to entitle the same lodge to the benefits of the provision of said statute.”
    Also, “ that at the time of the execution of said last will and testament James Mason, John F. Getman and A. H. Ell wood were, and ever since have been and still are, the trustees of the Richfield Springs Lodge of Free and Accepted Masons No. 482, and as such ' authorized to take, hold and convey real and personal estate for the charitable purposes of said lodge, vested with all the powers, benefits and duties granted and prescribed by the provisions of said statute.”
    The submission states “ school district No. 1 ” is a duly and legally organized common school district in the town of Columbia, Herkimer .county, New York.
    Also that the testator left him surviving no father, mother, wife or child, and that his heir and next of kin was Joseph Iseman, who' claims that said bequests to the town of Columbia, to school district No. 1, and to Richfield Springs Lodge No. 482, Free and Accepted Masons, should not be by said executors paid, but the same should be paid to said Joseph Iseman.
    The provisions sixth, seventh and ninth of the testator’s will were, viz.:

      “Sixth. I give and bequeath to the town of Columbia in its corporate capacity the sum of one thousand dollars to be forever invested by the town board or officers of said town having charge of the financial matters of said town from time to time, and at all times hereafter on real estate, worth at least double the amount loaned thereon, the interest to be regularly collected and applied annually by the town officers of said town towards the supp.ort of the poor who are supported by the said town, the intention that the said interest shall annually form part of the poor fund of said town.”

      Seventh. I give and bequeath to school district No. 1, in said town in which district I reside, the sum of $300 to be forever loaned by the town officers mentioned in item sixth, and the interest thereon to be annually paid by such officers to the trustees of said school district, to be by them applied towards the support of the school in said district.

      Eighth. I give and bequeath my house and lot, in which I now reside, in said town of Columbia and adjoining the church lot, to my friend James H. Gietman.

      Ninth. All the rest and residue of my estate (if any may remain) I give and bequeath to James Mason, John F. Getman and A. H. Elwood, trustees of Richfield Springs Lodge No. 482, Free and Accepted Masons, as trustees of said lodge, and their successors in office as such trustees to be by them as such trustees and their sue: eessors in said office of trustees safely invested in real estate security or in government bonds, and apply the interest and income thereof for Masonic benevolent or charitable purposes, and for the relief of needy and worthy Masons or their widows and orphans; it being my intent that said residue, whatever the same may be, shall be permanently directed and set apart, and the income thereof be regularly applied and forever devoted to the purposes aforesaid.”
    The will does not contain a power of sale of the testator’s real estate. The case does not clearly show of what his estate consisted, how much real and how much personal, though it is inferable that, besides the specific devise of real estate “ house and lot,” the estate consisted of personal property.
    The case states “ that the total bequests to the town of Oolumbia, a school district No. 1, to Richfield Springs Lodge No. 482 and to the Reformed Dutch Church of Columbia did not exceed one-half part of the estate of Moses Iseman.”

      Smith de Steele, for Joseph Iseman.

      Morga/n de Browner, for the executors, town of Columbia and for school district No. 1.

      Bmenport & Tennant, for Richfield Springs Lodge.
   Hardin, J.:

Bequest of $300 “to school district No. 1” of the town of Columbia is valid and must be upheld, and the executors should pay and satisfy the same according to the tenor of fhe will. (Chap. 555 of Laws of 1864, pp. 1225, 1226, §§ 15, 16, 17 and 18; chap. 318 of Laws of 1840; chap. 261 of Laws of 1841; Bells v. Betts, 4 Abb. N. C., 321.)

The language of the bequest clearly vests the school district with the right to the legacy, and then it declares that the same shall be forever loaned by the town officers mentioned in item sixth, and the interest thereon to be annually paid by such officers to the- trustees of said school district to be by them applied towards the support of the said school in said district.

The language found in item sixth thus referred to is, viz., “ officers of said town having charge of the financial matters of said town from time to time.” The financial officer of the town of Columbia referred to, seems to be the supervisor of the town; as that officer holds for one year, the testator used the language so as to include successive supervisors or “ officers ” who may, “ from time to time,” have charge of the financial matters of said town.

Payment may be made to a supervisor who, as trustee for the school district, should invest the sum and annually pay over the interest thereon to the school district. Section 15 of the act of 1864 expressly authorized a bequest “to any supervisor of a town” for support and benefit of common schools within such * * * town * * * “or any particular common school.”

If there was doubt as to the named trustee, then by section 16 of the act of 1864 the bequest could not be held void, but the “ title and trust would vest in the people of the State.”

But, we think, the supervisor was designated and authorized by the testator to invest the fund and pay over the income to the school district, and that the executors should pay the same to such supervisor in accordance with the spirit and tenor of the testator’s will.

II. In the ninth clause of the testator’s will he gives “ all the rest and residue of my [his] estate, if any may remain, * * to James Mason, John F. Getman and A. II. El wood, trustees of Rich-held Springs Lodge No. 482, Free and Accepted Masons, as trustees of said lodge, and their successors in office as such trustees, to be by them as such trustees and their successors in said office of trustees, safely invested in real estate security or in government bonds, and apply the interest and income thereof for masonic, benevolent or charitable purposes, and for the relief of needy and worthy Masons or their widows and orphans.”

1. The three persons named in this provision of the will were elected trustees for said lodge, under chapter 317 of the Laws of 1866.

2. The statute authorizes them as trustees to take, hold and convey real and personal estate for charitable purposes of said lodge. (Sec. 1, chap. 317 of Laws of 1866.)

The fourth section of that act provides “the trustees of any such lodge or chapter, and their successors, shall be and are hereby authorized to take, hold and convey, by and under the direction of said lodge or chapter, and for the use and benefit thereof, all the temporalities and property belonging thereto, whether consisting of real or personal estate, and whether the same shall have been gi/oen, granted or devised directly to such lodge or chapter, or to any person or persons for their use or in trust for them or their benefit.”

The act is not very clear in its language. The words “ shall have teen given, granted or devised directly to such lodge or chapter, or to any person or persons for their use,” etc., may be construed to intend to, and to include any property which shall thereafter be given, granted or devised to such lodge or trustees in trust for it.

The title reads, viz.: “An act to enable Lodges and Chapters of Free and Accepted Masons to take and hold and convey real and personal estate.” This may be considered in giving the act construction. The eighth section declares, viz.: “ This act shall be deemed a public act, and be benignly construed in all courts and places to effectuate-the objects thereof.”

The legislative intent was to authorize the lodges in the name of the trustees to take such gifts notwithstanding the general statutes against perpetuities. The statute of 1866 was a dispensation in favor of the particular corporations named therein. (Holmes v. Mead, 52 N. Y., 340; 2 R. S., 57, § 3; 1 id., 773, § 1.)

III. The bequest to the town of $1,000 is invalid. The words I give and bequeath to the town of Columbia in its corporate capacity, the sum,” etc., standing alone, would vest the right to the money in the town in its corporate capacity and give it an immediate and vested interest in the money. (Wetmore v. Parker, 52 N. Y., 450.) There would be no trust or attempt to create a trust, for indefinite and unknown cestui qui trusts. But the further language of the bequest provides that the money “ be forever invested by the town board or officers of said town, having charge of the financial matters of said town, from time to time.”

Here is an indefinite provision as to the trustee. Is the town board as such intended as a trustee, or is it intended that officers of said town having chai’ge of the financial matters of said town from time to time ” shall be the trustees. If we construe these latter words to mean the supervisor for the time being, then the query arises whether the trustee is the town board-or the supervisor.

But neither the town board or the supervisor is authorized by any statute to act as a trustee for the benefit of the poor of the town.

' The bequest does not name an absolute legatee, nor a definite authorized trustee. The beneficiaries are unascertained and uncertain.

So far as the provision attempts to keep the sum of money named, in the town board or the officers of the town beyond two lives in being at the death of the testator, it is in violation of the statute as to the accumulation of personal property. (1 R. S., 773.) Our attention is called to Kennedy Ex'rs. v. Town of Palmer (1 T. & C., 581) where a bequest to the town of Palmer in Massachusetts by a testator residing in this State was held valid, as it was governed by the laws of Massachusetts.

In that State it has been expressly adjudicated that it is not necessary to the validity of charitable bequests that there should be any definite or ascertained cestui qui trust designated, and that a trust like the one created in that case, is valid in Massachusetts. (See opinion of Doolittle, J., 1 T. & O., 58é, and cases of Bart- let v. King, 12 Mass., 537, and Goring v. Emery, 16 Pick., 107; Webb v. Neal, 5 Allen, 575.)

The opinion of Judge Mullin (1 T. & C., 586) states that it was shown that the town of Palmer has the capacity to take the bequest by the laws of Massachusetts, and that, therefore, within the rule laid down in Chamberlain v. Chamberlain (43 N. Y., 424), that the validity of the bequest was to be determined by the laws of the domicile of the legatee, and not by the laws of the domicile of the testator.

We are referred to Coggeshall and others, Trustees v. Pelton (7 John. Ch., 291), which was decided in 1823. The bequest there was to the town of New Rochelle “ for the purpose of erecting a town house for transacting town business,” and it was held valid as a eha/ritable bequest. There had been an act of the legislature passed authorizing the plaintiffs, as trustees, to receive from the executors the bequest.

The correctness of that decision was questioned in King v. Woodhull (3 Eds. Ch., 92). The doctrine on which such cases rested was exploded by the Court of Appeals in Bascom v. Albertson (34 N. Y., 584), and the doctrine of that case was approved in 52 N. Y., 338.

In Wetmore v. Parker (52 N. Y., 450), it was held that a corporation created for charity may take, by bequest, and hold personal property limited by the testator to any of the corporate uses of the legatee. In the case in hand there is an attempt to vest in trustees, in perpetuity, the bequest, with directions to pay over forever the income to the town of Columbia, and that said “interest shall annually form a part of the poor fund of said town.”

It is thus brought within the condemnation of the statute against suspension of the absolute ownership of personal property beyond the lives of two persons in being at the death of the testator. In Adams v. Perry (43 N. Y., 488, opinion of Grover, J., in Low-ville Academy case), it was held that a bequest to trustees of personal estate, to invest and reinvest and pay over the income to an incorporated academy, forever, is void under the statute of perpetuities.

The bequest in the sixth clause of the will before us must be held invalid. The same is, therefore, payable to the next of kin of the deceased. (Chamberlain v. Chamberlain, 43 N. Y., 439; Betts v. Betts, 4 Abb. N. C., supra.)

By section 1281 of the Code of Civil Procedure, the costs are in the discretion of the court.

Since the foregoing opinion was written attention has been called to the will of Alexander H. Buel, late of Fairfield, which contained provisions not unlike those in respect to the town of Columbia, in the will before us. That will was judicially examined and construed by the late Judge Gridlky, at a Special- Term, held in Herkimer county, in August, 1853, and it was adjudged by the court that the provisions as to said bequest, in favor of the poor of the town and the supervisor thereof, are void; and that the bequest to the town of Fairfield, whether said devise relates to real estate or not, and the trust relating to said devise and bequest to said town of Fairfield are wholly void.” (See judgment roll filed in Herkimer, January 10, 1854.)

Judgment should be entered (1) declaring the bequest to school district No. 1, of Columbia, of .$300, valid; (2) the bequest to Richfield Springs Lodge, No. 482, valid; (3) the bequest of $1,000 to the town of Columbia, invalid, (4) and that said $1,000 is payable to the next of kin of the testator, to wit, to Joseph Iseman, and that neither party recover costs as against the other. •

Smith, P. J., and Haight, J., concurred.

Judgment ordered (1) declaring the bequest to school district No. 1, of the town of Columbia, of $300, valid, and directing the payment thereof by the executors; (2) also declaring the bequest to the Richfield Springs Lodge of Free and Accepted Masons, No. 482, valid, and the payment thereof by the executors; and also (3) declaring the bequest of $1,000 to the town of Columbia, invalid; and (4) that said $1,000 is payable to Joseph Iseman, as the next of kin of the testator; and (5) that neither party recover costs as against the other.


source: Caselaw Access Project

author: Hardin, J.:

license: Public Domain

text:
    THOMAS MURPHY, Appellant, v. JOSHUA S. LOOMIS, Respondent.
    Ejectment— right of one 'in possession of land under a contract for its purchase, to ■ maintam it. <
    One in possession of land under a contract for the purchase thereof, is entitled to maintain an action of ejectment against a stranger to the title, who wrongfully enters upon and withholds possession of the same.
    Appeal from a judgment, (|ntered on a nonsuit directed at the circuit, and from an order denying a motion for a new trial, made upon tlie minutes of the justice before whom the action was tried.
    The action was brought to recover the possession of land.

      F. ■ W. Hubbard, for the appellant.

      Lansing da Rogers, for the respondent.
   Hardin, J.:

Plaintiff, in his complaint, alleges “ that on or about the 16th day August, 1878, the plaintiff was the lawful owner and in the possession of the premises ” described; * * “ that being so possessed thereof, the defendant afterward, and on or about the 16th day of August, 1878, entered into said premises and has since continuously, unlawfully withheld possession thereof from the plaintiff to his damage, in the sum of fifty dollars,” and then judgment is demanded that the defendant surrender to the plaintiff possession of said premises and pay damages for the unlawful withholding of same.”

Defendant’s answer contains simply a general denial.

Plaintiff, in his opening of the case to the jury, stated that !C prior to the 28th day of March, 1856, the defendant was the owner in fee and in possession of a farm in the town of Champion, Jefferson county, of 100 acres; that on the said 28th March, 1856, he sold and conveyed, by warranty deed, seven acres and 118 rods of the westerly end of sand farm, to one Samuel Knight, and on the same day delivered to said Knight the sand deed and also the full possession of the land conveyed; that on or about the date of the deed, the defendant and Knight established the boundary line practically, and by the survey contained in the deed between defendant’s remaining land in his farm and the seven acres and 118 rods so sold and conveyed, and agreed upon the portion of the division fence which each should build, there being no fence there at the time.” And it is stated that thereafter parties built the division fence in accordance with such division line and the agreement in respect thereto in 1856.

It was further stated “ that the defendant used and accepted the remaining portion of his farm, and cultivated the same up to the division line fence so built by him and Knight, from the date of said deed, March 28,1856, to the summer of 1878, recognizing the said fence as a boundary line.”

* * * “ That Knight so occupied under such claim, until the 9th day of November, 1857, when he sold and conveyed said seven acres and 118 rods of land, to Lemuel Clark by warranty deed.' * * -* «That about the date of said deed, Clark was put in possession of said land by Knight, and occupied up to said division fence, under his deed claiming in good faith title thereunder until October 25, 1859, when he sold and conveyed the land by deed to John 0. Knapp, and on or about that day transferred to Knapp the possession of the land. That Knapp occupied up to the division fence under his deed and claim of title in good faith until he sold the same by written contract to the plavntiff in this action on the 1st day of June, 1867.” “ That the, said contract was in the usual form, containing covenants to convey by warranty deed upon payment of the consideration expressed therein.

That hy the terms of the contract the plaintiff was to have immediate, and was in fact put into immediate and full possession of said seven acres and 118 rods of land, bounded on. the west by the said division fence, so built in 1856 by Knight and defendant.

That he continued to occupy up to said fence in the usual way of husbandry, claiming in good faith, a right and title to the fence of the boundary line without dispute or question, until the summer of 1878, when the defendant wrongfully, without the knowledge or consent of the plaintiff, removed the said division fence, building on a new site east a new board fence and stone wall as the new division line. * * * That this action was brought to recover the possession of the premises of which the plaintiff has been deprived by the defendant, withbut color of right or title, and as a mere wrong-doer. The ease states that the plaintiff’s counsel asked to present proofs of the foregoing allegations of fact to the jury, but the court refused to permit the same and ruled and decided that the plaintiff being in possession under a contrast for the purchase, of the premises in question, he could not maintain an action of ejectment therefor, to which ruling the plaintiff excepted.

The court, therefore, nonsuited the plaintiff and plaintiff excepted.

In the opinion of the circuit judge denying a motion for a new trial upon his minutes, it is stated (1) that “ plaintiff may recover in ejectment on proof of possession alone, because the party in possession is presumed to be owner in fee. (2) Had the plaintiff’s counsel in his opening claimed to recover upon proof of possession, he could not have been nonsuited; but where he conceded that he held the possession under a contract for the purchase, he showed that he was in under an equitable letter merely, and upon such a title a plaintiff ccmnot recover in ejectment. “ His vendor could maintain the action.”

The respondent seeks to sustain the. judgment below by an attack upon the plaintiff’s complaint. No such point' was presented at the circuit, and ought not, therefore,-to be listened to on this appeal.

It may be observed, however, that the complaint did aver that “ the plaintiff was the lawful owner and in possession of the * * * described premises,” at a time prior to the defendant’s entry. For the purposes of the action, as no poiñt was raised by demurrer or upon the trial, we may assume the averment equivalent to a claim of the fee, and, therefore, a compliance with section 10 of 2 Revised Statutes, 304. (See Code of Civil Procedure, §518; § 140 old Code, and § 455 \old] Code.) It was held on demurrer in a complaint in Austin v. Schluyter (7 Hun, 275), that it is not necessary to state in detail the facts constituting the estate or interest claimed in the land, but the general form or character of the estate or interest must be averred. The complaint in that case simply averred possession, and in no way averred any title, interest or ownership in the plaintiff, and it was, therefore, held defective on demurrer.

By section 25 of 2 Revised Statutes, 306, it was provided that it shall not be necessary for a plaintiff to prove an actual entry under title * * * “ but it shall be sufficient for him to show a right to the possession of such premises at the time of the commencement of the suit as heir, devisee, purchaser or otherwise

This section received construction in Chapman v. Delaware, Lackawanna and Western Railroad Company (3 Lans., 261); and it was held there that a mortgagee in possession might recover though his complaint alleged the fee to be in him, and the court said: “ It is enough for the plaintiff to show a right to the possession of the premises at the time the suit was commenced to entitle him to recover.”

The answer of the defendant does not set up any title, and the complaint as well as opinion placed the right of the plaintiff upon a prior possession under claim of an interest in the premises, and under such circumstances the plaintiff’s right to recover is supported by authority. (Jackson v. Hazen, 2 Johns., 22.) In Jackson v. Harder (4 Johns., 202) the defendant showed no pretense or color of title to justify his entry and the plaintiff recovered against him on a possession of eight or ten years under a claim and color of title. (See, also, Smith v. Lorillard, 10 Johns., 338; Jackson v. Rightmyre, 16 id., 325.) In Trull v. Granger (4 Selden, 118), it was held that a present right of possession was all that was necessary to maintain ejectment. (2 R. S., § 2, sub. 1, p. 304.)

By the opening it appears the plaintiff not only had the right to the immediate possession, but that he was in possession “ claiming in good faith a right and title ” when the defendant wrongfully took possession, and his possession so taken was without any interest in the lands. Neither the opening or the answer of the defendant connect him with the legal title.

Under such circumstances we think the interest of the plaintiff, his prior possession, as against the defendant, entitled him to recover and that he was improperly nonsuited.

We must, therefore, reverse.

Smith, P. J., and Haight, J., concurred.

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


author: Hardin, J.;

text:
    LOUIS H. ECKHERT, Respondent, v. WILLIAM D. ELLIS, Appellant, Impleaded, etc.

      A purchaser of a promissory note, before or after its maturity, may mail himself of the title of his assignor.

    Appeal from a judgment in favor of the plaintiff, entered upon a verdict taken by direction of the court, in the Erie County Court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought upon a promissory note. The plaintiff read in evidence a promissory note for $250, made by the defendant, payable three months after date to the order of Philip Stillwagen, upon which was the indorsement of Stillwagen and a waiver of demand and notice of protest. Thereupon the defendant gave evidence tending to show that there was no consideration given by the payee to the maker of the note, and that the note was made for the accommodation of the payee and loaned to him.
    Cne Martin was called as a witness who testified that at the date of the note the same was transferred to him by Stillwagen and that he gave Stillwagen “ the face value of it; ” and that thereafter, and before it was due, he, Martin, transferred it to the plaintiff on account of an indebtedness due to the plaintiff.
    Martin was recalled as a witness for the defendant and testified that he had a note of $250 against Stillwagen, and that he took the note in suit for the note made by Stillwagen; “ that the note was due and he gave it up to Stillwagen; that he surrendered it to Stillwagen for the one in suit; and he also testified that the note in suit was not past due when it was transferred to the plaintiff. The defendant requested that the case be submitted to the jury upon all the evidence in the case.” This was refused and an exception taken.
    The defendant’s counsel asked “ that the case be submitted to the jury on the question as to whether the note in suit was transferred to the plaintiff before it was due, and whether the plaintiff paid value for it.” The court refused and defendant excepted. Thereupon the court directed a verdict for the amount remaining due upon the note, viz., $215, and the defendant took an exception.
    The court at General Term said: “ First. The surrender of a past due note by Martin to Stillwagen for the note in suit was a good consideration and gave Martin the position of a bona fide holder for value. (Pratt v. Goman, 37 N. Y., MO; Phoenix Ins. Go. v. Church, 59 How., 297.) Second. After Martin became a bona fide holder for value he transferred the note before due to the plaintiff, and the plaintiff thereby succeeded to the title acquired by Ma/rtin and was entitled to enforce such title whether the transfer to the plaintiff by Martin was for value or not, and irrespective of the question of whether it was transferred before or after due.
    “Mr. Daniels, in his work on Negotiable Instruments, says in section 726 (vol. 1): ‘ It is a settled principle, however, that if the party who transferred- the instrument to the holder acquired the note before maturity, and was himself unaffected by any infirmity in it, the holder acquires as good a title as he held although it were over due and dishonored at the time of the transfer.’
    “An illustration of this rule may be found in Ghabners v. Lanion (1 Camp., 383), and the principle is asserted in Commissioners v. Clarbc (94 U. S., 285).
    “In Cromwell v. Gounty of Sac (96 H. S., 59), Field, L, says: 1 The rule has been too long settled to be questioned now, that, whenever negotiable paper has passed into the hands of a party unafeeted by previous infirmities, its character as an available security is established, and its holder can transfer it to others with the like immunity. His own title and right would be impaired if any restrictions were placed upon his power of disposition.’ (See, also, Schell v. Telford, 4 N. Y. Leg. Obs., 301; Gorbitt v. Miller, 43 Barb., 309 ; Wheeler v. Allen, 59 How. Pr., 119.)
    “ There is one exception to this rule, which arises where the. purchase is made by the original payee, as he is not entitled to the protection which the rule gives to the innocent indorsee or purchaser. . That exception would exclude the right of Stillwagen to recover in this case had he become a purchaser from Martin or from the plaintiff.' (Kost v. Bender, 25 Mich., 516; Sawyer v. Wiswell, 9 Allen, 42; sec. 805 of vol. 1 of Daniels on Negotiable Instruments [2d ed.], page 658.) The case of Chester v. Dorr (41 N. Y., 2T9) is clearly distinguishable from the one before us. That action was against Dorr who had indorsed the notes for the accommodation of Meyers, and Meyers held the notes at maturity and he transferred them, two or three yea/rs after they had matured, and it was held the plaintiff could not recover of Dorr.”

      Morey dk Inglehart, for the appellant.

      W. Q. C. Kilhoffer, for the respondent.
   Opinion by

Hardin, J.;

Smith, P. J., and Haight, J., concurred.

Judgment and order affirmed.


author: Smith, P. J.;

text:
    THOMAS I. PATTERSON, Appellant, v. EUNICE M. HAMILTON and HIRAM CULVER, Administrators, etc., of WILLIAM C. HAMILTON, Deceased, Respondents.

      Proceedings to sell real estate of decedent to pay debts — the heirs-at-law must be made parties to an appeal taken by a creditor— they cannot be made pa/rties after the . * time to appeal has expired.

    Appeal from an order of the Surrogate’s Court of the county of Allegany, in proceedings for the sale of real estate of the respondents’ decedent, allowing the appellant’s claim of $502.98 at the sum of ninety-three dollars.
    The court at General Term said: “ There is a defect in the appellant’s practice which is fatal to his case. He has omitted to make the heirs of the deceased, parties to the appeal. They were parties to the proceeding before the surrogate, and appeared there ana contested the appellant’s claim, and they are interested in the disposition to be made of the proceeds of the sale of the real estate. ' In their absence we cannot reverse the order appealed from, even though we should be of the opinion that the surrogate had erred as to the rights of the parties. (Brown v. Moans, 34 Í>arb., 594.) Nor can we give relief by permitting the appellant to bring in the heirs, as the time within which to appeal from the order of the surrogate has expired, the order having been made and entered on the 2d day of October, 1879. (Cotes v. Carroll, 28 How. Pr., 436; 2 R. S., 610, §§ 104, 105.)
    “ Nothing can be done, therefore, but to dismiss the appeal, with costs.”

      Mranlc S. Smith, for the appellant.

      G. W. Stevens, for the respondents.
   Opinion by

Smith, P. J.;

Hardin and Haight, JJ., concurred.

Appeal dismissed, witli costs.


text:
    WILLIAM CANDEE, Respondent, v. ASEL F. WILCOX and GEORGE WILCOX, Appellants.

      Action to procure injunction — undertaking, unusual in its terms, given in it— validity of such undertaking — when not invalid as taken colore officii.

    Appeal from a judgment in favor of the plaintiff, entered upon the decision of the court at the Onondaga Circuit, in a case tried by the court without a jury.
    The judgment appealed from was recovered upon an undertaking executed by the appellants, as sureties for the widow and children . of Enos Burke, upon an injunction issued in an equity action in which such widow and children were plaintiffs and this plaintiff was defendant. The appellants contend that the undertaking is void, or if held valid, that there has been no breach of its conditions, and the suit is premature.
    The object of the action brought. by the widow and heirs of Enos Burke against the plaintiff herein was to have certain conveyances, which had been executed by Burke to Candee, adjudged to be mortgages, and to redeem. At the commencement of the action the plaintiffs therein obtained a temporary injunction order restraining Candee from taking any proceedings to dispossess the said plaintiffs. Candee moved to vacate the injunction order, before the judge who granted it, and the motion resulted in a modification of the order, so as to allow Candee to bring an action at law to recover the premises mentioned in the complaint in that action, the order as so modified to stand, provided that the plaintiffs therein should give Candee an undertaking in their action for the payment of the defendant’s costs, adjudged against the plaintiffs in that action, or in the action at law in which the right to said premises and the possession should be tried and determined, and the value of the use and occupation of said premises from 1st April, 1870, during the pendency of said action, in which such trial and determination should be had, and- against the commission of waste ; but in case of plaintiff’s failure to give said undertaking, then the said injunction to be dissolved. The undertaking in suit was given in pursuance of such order and in compliance with its terms. The injunction order, as modified, remained in full force until the final determination of the action in which it was granted, when it became inoperative, the defendant therein having obtained judgment therein in his favor. The recovery in this action is for the value of the use and occupation of the premises, from the date of the injunction order to the final determination of the action, with interest thereon.
    The court at General Term said: “ The order, in pursuance of which the undertaking was given, is evidence that, in the judgment of the officer who granted it, the plaintiffs in that, action were not entitled to retain the injunction as matter of right, and that in the exercise of his discretion he allowed them to retain it in its modified form, only on condition of their giving an undertaking as therein provided. There was nothing unlawful in the terms of the undertaking thus required; and the plaintiffs in that action having voluntarily procured it to be given, and having thus availed themselves of the favor granted them by the decision of the judge, neither they nor their sureties can now object to the validity of the undertaking. (The Matter of the Waverky Water Works Company, 85 N. Y., 478; Brownell v. Ruekman, Id., 648; Decker v. Juclson, 16 id., 449.) There is nothing in the conditions of the undertaking which would nave been invalid at common law ; and the circumstances that it was given by the plaintiffs in the action to avail themselves of a favor granted by the order, to which they would not have been entitled otherwise, distinguishes the case from those cited by appellants’ counsel, in which bonds were held void as taken colore officii, or else bonds taken under a statutory power only, were treated as invalid because they did not comply with the statute.
    “ The objection that the suit is premature is of no force. It was adjudged in the equity suit, before this action was brought, that Candee was entitled to the premises and the possession thereof, and that adjudication satisfied the proviso in the bond.”

      George D. Coicles, for the appellants.

      William G. Ruger and Louis Marshall, for the respondent.
   Opinion by

Smith, P. J.;

Haight, J., concurred; Hardin, J., not sitting.

Judgment affirmed.


author: Haight, J.;

text:
    EDWARD DELAHUNT and PETER V. CARROLL, Respondents, THE ÆTNA INSURANCE COMPANY OF HARTFORD, CONNECTICUT, Appellants.

      Insurance policy — clause terminating the risk if the voyage cannot he finished hy reason of ice — construction of it.

    Appeal froip a judgment, entered in favor of the plaintiff for $2,602.49, damages and costs, on the verdict of a jury at the Erie Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought on several certificates of insurance made by the defendant, in pursuance of an open policy issued by the defendant to the plaintiffs in this action, upon a quantity of oats, hoofs, horns and bones, being part of the cargo of the canal boat James Maloney, the property having been damaged by the sinking of the boat in the Hudson river at Albany. The cargo was insured at Buffalo, and started on its trip for New York. At a point about four miles west of Schenectady the boat was frozen in and the voyage stopped. Some days thereafter the canal was ordered closed by the canal commissioners of .the State, and the water was drawn off. Some two weeks thereafter, a thaw having taken place, and there being a number of loaded boats frozen in at that part of the canal, the canal was reopened, and the water again let in by the canal commissioners for the purpose of getting the boats so stopped through to their place of destination. This boat was then taken on through the canal and into the river at Troy, and down the river to Albany, where she was sunk, and the damage complained occurred.
    •The policy of insurance, among other things, contained the following clause : “ It is understood that if, in consequence of ice, or the closing of navigation, the said voyage cannot be finished the same season, the risk to end at' the place and at the time the voyage is stopped, three days being given to discharge.”
    The court at General Term said : “ The appellants claim* that by reason of this boat being stopped. on account of ice, and the closing of the canal as stated, that the risk under this policy had terminated, and, therefore, they were not liable. The correctness-of this claim depends upon the construction to be given to the clause of the policy quoted, ‘If in consequence of ice, or the closing of navigation, the said voyage cannot be finished the same season.’ Ice intervened and stopped the boat. The canal was formally closed to navigation, but by subsequent action of the canal commissioners it was reopened so that the voyage could be continued, and it was continued during the same season. In order to terminate the risk under this policy, there must be such an interference of ice, or such a closing of navigation, that the voyage-cannot be finished the same season. This was not the case, and we are of the opinion that the risk was not terminated.”

      Humphrey & Lockwood, for the appellants.

      QooJc <& Fitzgerald and E. O. Sprague, for the respondents.
   Opinion by

Haight, J.;

Smith, P. J., and Hardin, J., concurred.

Judgment and order appealed from affirmed.


author: Hardin, J.

text:
    Joseph Bork, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.
   Conviction affirmed and proceedings remitted to the Oyer and Terminer of Erie county with directions to proceed thereon. Opinion by

Hardin, J.


text:
    In the Matter of the Probate of the Last Will and Testament of Sarah Gates, Deceased. Amelia A. Dougall and others, Appellants, v. James O. Gates, Respondent.
   Decree of the surrogate' of Oneida county reversed and ordered that a trial take place in a circuit court in the county of Oneida of'two questions, viz.-: (1.) Was Sarah Gates, the testatrix, at the time of the execution of the will offered for probate, possessed of competent mental capacity to execute a will? (2.) Was she under influence at the time of her execution of the will ? The costs of the appeal to abide the event. Opinion by

Hardin, J.


author: Smith, P. J.

text:
    Stephen W. Millichamp, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.
   Conviction affirmed and case remitted to the Court of Sessions of Monroe county to proceed thereon. Opinion by

Smith, P. J.


text:
    In the Matter of the Petition of Mary Baker and Others for the Appointment of a Trustee, etc.
   Order reversed, with ten dollars costs' and disbursements. Opinion by

Hardin, J.


text:
    Flora Samuels, Respondent, v. Frederick G. Weaver, as Sheriff etc., Appellant.
   Judgment affirmed. Opinion by

Smith, P. J.


text:
    George Williams and another, Respondents, v. Lynott B. Root and Henry J. Wood, as Executors, etc., Appellants.

   Judgment and order affirmed. Opinion by

Smith, P. J.


text:
    Isaac R. Pharis, Appellant, v. R. Nelson Gere, Respondent.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Smith, P. J.;

Hardin, J., not sitting.


text:
    Shepard Tappen, Appellant, v. Edward P. Penfield, Respondent.
   Motion granted to modify order as specifically asked for in notice of motion.


text:
    In the Matter of the Application of the New York, Lackawanna and Western Railroad Company to Acquire Lands of Charles S. Longwell, Appellant.
   Orders appealed from reversed, and the motion made by the land owner at Special Term granted, on condition that he pay to the 'railroad company the taxed costs and disbursements of the hearing already had before the commissioners, and also ten dollars costs and disbursements of this appeal and ten dollars costs of the motion at Special Term; otherwise the orders appealed from are affirmed, with ten dollars costs and disbursements of this appeal to the respondent. Opinion by

Smith, P. J.


text:
    Henry Beckwith and John K. Beckwith, Respondents, v. James Brackett and Benjamin M. Baker, Appellants.
   Judgment affirmed on report of referee.


text:
    Louis Schewe, Appellant, v. John Mulvey, Respondent.
   Judgment affirmed. Opinion by

Smith, P. J.


text:
    Louisa C. Smith, Appellant, v. James Mooney, Respondent.
   Judgment affirmed. Opinion by

Smith, P. J.


text:
    Benjamin C. Nottingham, Respondent, v. Maggie Clark, Appellant.
   Judgment affirmed. Opinion by

Smith, P. J.


text:
    George A. Coe, Respondent, v. David Bearup, Appellant.
   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    J. Dupha Reeves, Trustee, and others, Appellants, v. Edwin K. Burnham and others, Respondents.

   Judgment appealed from reversed, and judgment ordered in favor of the plaintiffs adjudging the trust valid and directing an injunction as prayed for in the complaint, with costs. Opinion by

Smith, P. J.


text:
    Elizabeth A. S. Reed, Appellant, v. Phoebe Ann Davis, Respondents, Impleaded, etc.
   Judgment and order reversed and demurrers overruled with leave to defendants to withdraw their demurrers and to answer upon payment of one bill of costs of the demurrers and of this appeal. Opinion by

Hardin, J.


text:
    William H. Vosburgh, Respondent, v. The Lake Shore and Michigan Southern Railroad Company, Appellants.
   Motion for a new trial denied and judgment ordered for the plaintiff upon the verdict. Opinion by

Hardin, J.


text:
    Mary E. Mosher, Appellant, v. The City of Auburn, Respondent.
   Judgment affirmed. Opinion by

Hardin, J.


text:
    Thomas Hunter, Respondent, v. Thomas Reed, Appellant.
   Judgment affirmed. ■ Opinion by

Hardin, J.


text:
    Moses Parsons, as Executor, etc., Respondent, v. Robert Riby, Jr., Appellant.
   Judgment affirmed. Opinion by

Hardin, J.


text:
    Alonzo B. Raymond and others, Appellants, v. Henry S. Elmore, Respondent.
   Judgment reversed and a new trial ordered before another referee, with costs to abide the event, unless the defend ant shall stipulate to reduce the judgment $831.45, and the'interest thereon from the 19th day‘of November, 1878, in which event the judgment as so modified is affirmed, with costs to the appellant. Opinion by

Hardin, J.


text:
    Harrison S. Matteson, Respondent, v. Alvin H. Hall, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Opinion by

Hardin, J.


text:
    Abram Ladue, Respondent, v. Charles B. Nichols, Appellant.
   Motion for new trial granted, costs to abide event. Opinion by

Hardin, J.


text:
    Rose Rehwald, Plaintiff, v. The Mutual Life Insurance Company of New York, Defendant.
   Motion for a new trial granted, costs to abide the event. Opinion by

Hardin, J.


text:
    Samuel Thomas, Appellant, v. Charles C. Gridley, Respondent.
   Judgment affirmed, with, costs. Opinion by

Hardin, J.


author: Haigiít, J.

text:
    Eugene Forman, Appellant, v. Hiram K. Edwards, Sheriff, etc., Respondent.
   Judgment affirmed. Opinion by

Haigiít, J.


author: Haight, J.

text:
    Jacob S. Haws and Elias Cooper, as Executors, etc., Appellants, v. Catharine Scott, Respondent.
   The decree of the surrogate modified by striking out the item of twelve dollars charged against the executors, and as so modified affirmed, with costs to the respondent. Opinion by

Haight, J.


text:
    Richard H. Parker, Respondent, v. John H. Phelps, Appellant.
   Judgment affirmed. Opinion by

Haight, J.


text:
    The People of the State of New York ex rel. Ebenezer Keeler, Appellant, v. Israel W. Baldwin, as Commissioner, etc., Respondent.
   Order appealed from reversed, with ten dollars costs and disbursements, and motion granted. Mem. by

Haight, J.


author: FIaight, J.

text:
    Horace Jones, Respondent, v. The Village of Charlotte, Appellant.
   Judgment affirmed. Mem. by

FIaight, J.


text:
    George W. Green and another, Appellants, v. George W. Raymond, Respondent.
   J udginent affirmed. Mem. by

Haight, J.


text:
    Hugh H. Boles, Respondent, v. William Coons, Appellant.
   Judgment affirmed. Mem. by

Haight, J.


text:
    Barton Pratt, Appellant, v. George Richardson and Harvey Collis, Respondents.
   Judgment affirmed. Opinion by

Haight, J.


text:
    George E. Sheldon, Respondent, v. Razo Combs, Appellant.

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

Haight, J.


text:
    Orville W. Ramsey, Respondent, v. John Felton, Appellant.

   Judgment affirmed, with costs. Opinion by

Haight, J.


text:
    Van Buren Wheat and Joseph F. Salisbury, Respondents, v. Harvey Rice and others, Appellants.

   Appeal dismissed, with costs. Opinion by

Haight, J.


text:
    Second National Bank of Oswego, Respondent, v. Erastus P. Burt, Appellant.
   Judgment reversed and new trial ordered before another referee, unless the plaintiff within twenty days stipulates that the judgment may be reduced in the amount of the four drafts signed by Tarbush, less the amount of $1,000 of the last of such drafts, with the interest thereon accrued. If such stipulation' be given the judgment for the amount so reduced affirmed, with costs to the defendant. Opinion by

Haight, J.


text:
    Adelaide L. Post, and others, Appellants, v. Francis O. Mason and others, Respondents.
   Motion for reargument denied.

Smith, P. J., not participating in the decision.


text:
    Henry Root and Noble W. Stockham, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment affirmed.


text:
    Orrin R. Brooks, Respondent, v. Francis G. Boswell, Appellant.
   Judgment and order affirmed.

Smith, P. J., taking no part in the decision.


text:
    Joseph Schantz and others, Appellants, v. Henry Schantz, Respondent.
   Appeal dismissed, with ten dollars costs and disbursements. Held, that the order striking the cause from the circuit calendar is not appealable.


text:
    John T. Cook, Impleaded, etc., Respondent, v. Frank P. Rowe, Appellant.
   Judgment of the County Court and that of the Municipal Court reversed. Held, that the return of the constable was insufficient to give the Municipal Court jurisdiction. It did not state or show that a copy of the notice was served, nor that the defendant could not be found, or that due effort was made to find him.


text:
    Hubbard Kelsey, Appellant, v. Smith Lyon, Respondent.
   Order appealed from affirmed on opinion of Daníels, J., at Special Term.


text:
    Lester W. Babcock, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Held, that the judge erred in charging the jury that they might give exem plary damages.


text:
    Lauren C. Woodruff, Appellant, v. Leonard B. Field, Respondent.
   Judgment and order affirmed.

Haight, J., not sitting.


text:
    The Eaton, Cole & Burnham Company, Respondents, v. Edward Martin, Appellant.
   Judgment affirmed.


text:
    John O. Gorman, by Guardian, Appellant, v. Benjamin Bushnell, Respondent.
   Judgment affirmed.


text:
    Edward Isham and others, Respondents, v. The Trustees of the First Presbyterian Church of Dunkirk and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements on the opinion of Daniels, J., at Special Term, and on the authority of The First Preshytericm Ohwroh of Hew York v. Scott and others, decided by this court in January last and not reported.


text:
    Paulina Stelmacher, Respondent, v. Christopher Wesp, Appellant.
   Order affirmed, 'with ten dollars costs and disbursements.


text:
    In the Matter of the Application of the New York, Lake Erie and Western Railroad Company, Appellant, for the Appointment of Commissioners to Examine the Proposed Route of the New York, Lackawanna and Western Railroad Company, in the Town of Erwin, Respondents.

   Order affirmed, with ten dollars costs and disbursements.


text:
    The Lake Keuka Steam Navigation Company, Appellant, v. Ralph T. Wood, Respondent.
   Order affirmed.


text:
    In the Matter of the Receivership of the Syracuse, Chenango and New York Railroad Company.
   ’Motion to dismiss the

appeal denied, with ten dollars costs. Order appealed from reversed, with ten dollars costs and disbursements, and motion to dismiss the petition granted, with ten dollars costs. Per O-v/riam opinions filed, with the clerk of Monroe.


text:
    In the Matter of the Application of the New York, Lackawanna and Western Railroad Company, Appellant, to Acquire a Crossing of the Buffalo, New York and Erie Railroad Company and the New York Lake Erie and Western Railroad Company, over their Railroads in the Town of Erwin, Respondents.
   Order reversed and proceedings remitted to the Special Term for the exercise of its discretion, with ten dollars costs and disbursements. Held, that the Special Term erred in denying the application on the ground of the want of power.


text:
    In the Matter of the Application of the Syracuse, Chenango and New York Railroad Company and of George Lewis, Jr., etc., a Stockholder, etc.
   Order appealed from aifirmed. Held, that the order should be affirmed as it directs the time, place and manner of holding an election, etc., as directed by the order of ■6th of August, 1881, which is yet in force, as modified and affirmed by the General Term.


text:
    John W. Steele and another, Appellants, v. Richard B. Hoag, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Joseph Quin, Respondent, v. The City of Buffalo, Appellant.
   Motion for reargument denied.


text:
    In the Matter of the Application of the New York, Lackawanna and Western Railroad Company to Acquire a Crossing of the Buffalo, New York and Lake Erie Railroad Company and the Lake Shore and Michigan Southern Railroad Company in the City of Buffalo and Two Other Cases.
   Order in each case affirmed, with ten dollars costs and disbursements.


author: Davis, P. J".:

text:
    DAVID B. LEE, Plaintiff and Respondent, v. ANNA P. LEE and OTHERS, DEFENDANTS. JOHN T. FARLEY, Purchaser, Appellant.

      Conveyance of land fronting on a road — when the description commences on the side of the road the title of the grantee does not extend to its center — A pwrahaser at a judicial sale will not he compelled to accept a doubtful title.

    A deed conveyed “ all that certain piece, parcel or lot of ground situate, lying and being at Bloomingdale, in the ninth ward of the city of- New York, being part and parcel of á tract of land, * * * known and distinguished on a map or chart thereof (a copy whereof is unto these presents annexed) by lot No. 8. Beginning on the east side of the Bloomingdale road, at the south-westerly corner of lot No. 2, sold to. Caleb B. Bowering, and running thence along the southern boundary of the same south 57 deg. east 9 ch. 12 links to Low Benson’s land, thence south 36 deg. 10 min. west along the same 4 ch. 82£ links to the north-east corner of lot No. 4, * * * thence along the same north
    57 deg. west 8 ch. 21 links to the Bloomingdale road afoi'esaifl, thence along the s%id road 5 ch. to the place of beginning, containing four acres, be the same more or less.”
    The map of lot No. 3, annexed to the deed, gave the full distance called for by the side lines, from the easterly side of the road, without extending them to the center, and represented in like manner lots Nos. 2 and 4, bounding it on each side.

      Held, that the title of the grantee to the portion of the road lying in front of the premises conveyed was not so free from doubt as that a purchaser at a judicial sale, at which a diagram was exhibited on which the lot was laid down as extending to the center of the road, should be compelled to accept the title.

      Appeal from an order made at a Special Term, denying tbe motion of a purchaser of lands at a partition sale to be relieved from bis purchase.

      Charles Hagedorn, for the appellant.

      Wm. A. W. Stewart, for the respondent.
   Davis, P. J".:

It is now well settled that the court will relieve a purchaser of lands at a judicial sale if the title be a doubtful and unmarketable one. • (Jordan v. Poillon, 77 N. Y., 518; McCahill v. Hamilton, 20 Hun, 388; Schriver v. Schriver, 1st Dept., May, 1881; Argall v. Raynor, 20 Hun, 267.) If the title be not perfect, and therefore unmarketable, the court will relieve' the purchaser, although it be probable that he would never be disturbed in his-possessi'on. (Mott v. Mott, 68 N. Y., 246-258.)

In the present case the appellant is assignee of the purchaser of four lots of land sold under a judgment in partition. The lands were sold separately, and the sale was of the title in fee simple of each of them. They were sold as shown upon a diagram exhibited to the purchasers at the time of sale, and upon which the lands extended to the centre line of a road known as the Bloomingdale road, which road had previously been closed by the park commissioners under chapter 697 of the Laws of 1867. The purchaser and his assignee refused to complete the purchase and accept the title, on the ground that the referee’s deed would not convey a good and marketable title in fee in said four lots, because as they claimed, the fee of so much of the land as formerly lay between the center line of the Bloomingdale road and the easterly side of that road was not in the ancestor of the parties to the action who obtain their title by devise under his will.

The sole question in the case is, therefore, whether the grant to David Lee the ancestor of the devisees, carried title in fee to the center of the Bloomingdale road; and that depends upon the question whether a certain, deed, made in 1808 by Oliver Hicks and wife to "William Post and others, conveyed the fee in the easterly half of Bloomingdale road in front of the premises therein mentioned and described. It is conceded by the parties, as a fact having some bearing upon the question, that in the year 1837 the lands in question were country property. The lands conveyed by the deed of Hicks and wife to Post above mentioned -are described in the deed as follows:

“All that certain piece parcel or lot of ground situate, lying and being at Bloomingdale, in the ninth ward of the city of New York, being part and parcel of a tract of land heretofore conveyed to the said Oliver H. Hicks by Leonard Bleeker and his wife, and known and distinguished on á map or chart thereof (a copy whereof -is unto these presents annexed) by lot No. 3. Beginning on the east side of the Bloomingdale road at the south-westerly corner, of lot No. 2, sold-to Caleb. B. Bowering, and running .thence along the southern boundary of the same .south fifty-seven degrees east nine chains and twelve links' to Low Benson’s land; thence south thirty-six degrees ten minutes west, along the same four chains eighty-two links and a-half link to the north-east corner of lot No. 4, sold to James Pierce and G. B. Vroome, thence along the same north'fifty-seven degrees west eight chains twenty-one links to the Bloomingdale road aforesaid, thence along .the said road five chains to the place of beginning, containing four acres, be the same more or less.”

The map or chart of lot three, annexed to the deed, gives the full distance called for by the side lines respectively from the easterly' side of the road without extending such lines to the centre; and so also of lots Nos. 2 and 4, which are the boundaries on the sides of lot No.- 3. The contention on the part of the respondent is that the established presumption of law in relation to country lands, that the owner of lands abutting on a highway owns to the center line of the highway and that in conveying said land, he intends to convey his interest in the road, is applicable to this case, and that such presumption must prevail unless it be rebutted by a description showing a decided intention on the grantor’s part to. exclude the road from the conveyance. It is not necessary to cite or consider the cases which establish that such is the presumption, for no conveyance is controlled by that presumption, if the description of the land given in the deed excludes its application.

On the part of the appellant it is contended that in this case the description has that effect. It is a well settled rule that where land is described as beginning “ at a road,” or “ on a road,” or as “bounded by a road,” or in other similar form of expression without qualifying words, the boundary or point of beginning is the center' of the road, and not the side thereof; and so, where land is conveyed and described by a lot number as indicated on a map, and the land fronts on a road or highway, the boundary will be the center and not the side of the road. The iirst point of inquiry in such construction is usually to ascertain the ülace of beginning as the same is designated in the deed, and if the place of beginning, where ascertained, is a monument or in the nature of a monument, that is a controlling circumstance to determine the true location. In White’s Bank v. Nichols (64 N. Y., 65) the rule is thus laid down: “Although the highway is in one sense a monument, it is regarded as a line, and the center of the highway in such case is regarded as the true boundary indicated, as is the case when a tree, stone, or other similar object is designated as a monument; the center, in the absence of any other indication, is regarded as giving the true boundary or limit of the grant. * * * But when the words clearly indicate an intention to exclude from the operation of the grant, the soil of the!highway, it is equally well settled that it does not pass, and the grantor retains the title, subject only to- any easement which, may exist in the public or in the grantee of the adjacent lands.” In that case the grant described the .premises as commencing at the intersection of the exterior of two streets; and the court held that the point thus established was as controlling as any monument would have been, and must control, the other .parts of the description; and that all the lines of the granted premises must' conform to the starting point thus designated, and that although, but for that designation of the starting point of the survey, the lines along the two streets would have been carried to the center of those streets respectively, yet they were necessarily confined by the description to the exterior lines of the streets, so as to connect at the starting point. And English v. Brennan, (60 N. Y., 609) is also cited as having decided that point.

* In the description of the deed now under consideration the.¡joint of beginning is given as “ the east side of Bloomvngdale road” The effect is to make the east side of that road a fixed monument to mark the starting point of survey, and it is impossible without doing violence to tbe language used to transfer that monument to the center of the Bloomingdale road.

In English v. Brennan, above referred to, the description in the defendant’s deed began as follows: Beginning at the southwesterly corner of Flushing and Clermont avenues, running thence westerly along Flushing avenue twenty-five feet; thence southerly, at right angles to Flushing avenue, seventy-nine feet nine inches to a point distant forty feet seven inches and a-half westerly from the westerly side of Clermont avenue.” It was held that by this description the grantor excluded the street from the conveyance ; and this decision must have gone upon the ground that the westerly side of Clement avenue, as mentioned in the description, was a fixed monument which controlled the other language of the description.

In Jackson v. Hathaway (15 Johns., 447) the boundary began at a stake by the side of the road, and ran thence by specified courses and distances which gave the quantity called for, and it was held that the language rebutted the presumption that the fee of the land in the road was intended to be conveyed.

In Sherman v. McKeon (38 N. Y., 266), MilleR, J., in delivering the opinion of the court, says, at page 272: It is also equally clear that the deed to Bobertson did not include the lot in question as the description bounds the premises by the ‘ late line of Grove street, evidently meaning the old line as it existed before the new one was established by the proceedings had by the corporation, which at that time had been quite recently confirmed. * * * It is said that the expression employed will be presumed to refer to the late center line in connection with the words after the description, £ along and on Grove street.’ I think that it will not bear this interpretation. The description evidently makes a distinction between the old line and the new one; and in stating a line for a boundary it cannot well be said that the statement of itself makes the center the line.”

In Babcock v. Utter (1 Abb. Ct. of App. Dec., 27), the description reads as follows: “Beginning at a stake and stones on the west bank of the Ilnadilla river,” and thence ran around the plat until another line came by the description to the river, “ and thence down the west bank of the Unadilla river as it winds and turns, to the place of beginning.”

The court -say: The words ‘ to the Uuadilla river,’ according to the usual interpretation of such an expression in conveyances, would carry the line to the center. of the - river, as the general rule is that where a line touches the river it goes to the center. * * * The starting point is unequivocally from ‘ the bank,’ •and not from the center of the river ; and if the last line in the description is confined to the center of the river, it cannot run. ‘to the place of beginning’-as the description requires; and if it starts from the center of the river and runs ‘ to the place of beginning,’ it would neither follow the center of the river nor the ‘ west bank as it winds and turns,’ according to the description in the deed.” And it was held that the description conveyed the farm to the west bank of the-river only, leaving the title to the river and the land covered by it in the grantors.

In Smith v. Slocomb (15 Mass. [9 Gray], 36-38), it was held that the conclusion is inevitable that the road is excluded when, the boundary starts at the side of the road, and comes back to the road, and thence on the line of the road to the place of beginning.

In Sibley v. Holden (27 Mass. [10 Pick.], 249), the court say: “ From this description, we are all of the opinion, that the line must begin on the side of the road, and at that point exclude the road; then the question is whether, when the description returns to the road again, it shall be taken to mean the side or the center, of the road. If construed to be the center, then the remaining line would neither be by the side of the road nor the center, but by a diagonal line from a point in the center to a point in the side. This would not only be obscure and inconsistent with any supposed intent of the parties, but repugnant to the last clause in the description, which is ‘ by said road to the place of beginning.’ ”

A contrary rule was held by Oaeley, J., in Herring v. Fisher (1 Sandf., 344), but the question was not involved in that case, for the words of description were “ beginning at the road.” The learned judge thought those words were equivalent to beginning at the side of the road; ” and, upon that assumption, he argued that the words running along the road,” in the return lines, were controlling, and must be held to carry the line along the center of the road. •

The case of Bissell v. The New York Central Railroad Com- party (23 N. Y., 67), does not seem to have any bearing upon tbe question, except in so far as it bolds that tbe rule of construction applicable to deeds of land in tbe city is not different from that applied to deeds of land in the country; so that where tbe land is bounded on a street in tbe city, the land is presumed to be conveyed to the center of the street.

Tbe result of tbe examination of our authorities is that, under the established rule of construction, by the deed from Hicks to Post, upon which the title of the land in question depends, the east side of the Bloomingdalé road is made the monument of the beginning. That fact is strengthened by the fact that the distance by chains and links to Low Benson’s land, which is another monument, is folly complemented by the actual measurement, as is also the case by the distance in chains and links of the returning line to the Bloomingdalé road; and it follows that the words “thence along said road to the place of beginning ” are controlled by the starting monument to mean along the east side of said road. The result is that the title to the lands sold to the assignor of the appellant under the diagram exhibited at the sale was, so far as relates to the land within the boundaries, of the old Bloomingdalé road, not so free from doubt as that the deed of the referee would- give a marketable title.

The motion of the appellant should, therefore, have prevailed in the court below; and the order denying the same must be reversed, and an order entered relieving him from the purchase, and directing a restitution of the moneys paid in advance, with interest, and with ten dollars costs and disbursements of this appeal, and the reasonable expenses of counsel in searching the title, to be determined on settling the order herein.

Beady and Daniels, JJ., concurred.

fflrder reversed; order to be entered as directed in opinion.


author: Davis, P. J.:

text:
    JASPER KELLY, Respondent, v. MARTHA WEBER, as Executrix, and ALBERT WEBER, as Executor, etc., of ALBERT WEBER, Deceased, Appellants.

      Statute of limitations — what does not operate as a payment to stop the running of it— the payment must he made hy the debtor or his agent, not by his creditor unde!’ trustee process.

    In this action, brought by the plaintiff, as the assignee of one Flaherty, the defendants pleaded that the statute of limitations had run against the demand before the death of their testator. The plaintiff, in order to prove a part payment on account of the demand, showed that his assignor had brought an action upon the demand,, in Boston, and recovered a judgment by default against the testator, no personal service having been made upon him, and no one having appeared in his behalf. In that action a trustee process was issued against'the present plaintiff, as a debtor of the testator, and the plaintiff appeared therein and admitted the indebtedness. After the entry of the judgment it was assigned to the plaintiff, who issued an execution to the sheriff, and subsequently paid to him the amount of the indebtedness, and the same was applied upon the judgment.

      Meld, that this was not such a payment as would take the case out of the statute of limitations.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      lydecker & liomaine, for the appellants.
    A7. 0. Ripley, for the respondent.
   Davis, P. J.:

This action was brought by the plaintiff as assignee, of one Elaherty, of the demand in suit. The defendants, among other things, pleaded that the statute of limitations had run against the demand before the decease of their testator, Albert Weber. The plaintiff replied to this defense, alleging in substance that a payment had been made upon the demand within six years before the decease of Weber, which operated as a new promise.

To sustain the reply it was shown that Flaherty, the plaintiffs assignor, commenced a suit against the defendants’ testator in the city of Boston upon the same alleged cause of action, in which suit no personal service was made upon the defendant. No one appearing on his behalf a judgment was taken by default. In that suit it appeared that a trustee suit process was issued against the present pla.iut.iff Kelly, as a debtor of the deceased testator, to the amount of some $360, and that Kelly appeared on his own behalf in the action and admitted his own indebtedness.

It also appeared that after the judgment was recovered by Flaherty he assigned the same to Kelly, the plaintiff in this action, and that an execution was issued on that judgment upon which Kelly some time after such assignment paid to the sheriff the amount of his indebtedness to the testator to apply upon the execution in the sheriff’s hands, and that the sheriff, after deducting his fees, paid the balance to the attorneys in the action and took their receipt to apply on the judgment.

This payment by Kelly upon the execution issued upon the judgment which he then owned, of the indebtedness which had been trusteed or attached in his hands, it is claimed operated as a new promise on the part of Weber by which he recognized and promised to pay, as an existing indebtedness, the demand for which Flaherty had recovered the judgment. At the time the suit was commenced by Flaherty, and trustee process served upon Kelly, Kelly wrote to the testator Weber stating that Flaherty had commenced a suit against him and that he had been served with trustee process and could not, therefore, pay to Weber the indebtedness which he owed him and advising him to appear and defend the suit. • To this no reply was made by Weber, and so far as the case shows no attention to the suit was given by him. The question whether the payment of the indebtedness of Kelly under the circumstances operated as a new promise to revive the claim as of that date was submitted by the court to the jury. Due exception was taken to that course by the defendants’ counsel and the court was, in substance, requested to rule that the payment had no effect to take the claim out of the operation of the statute of limitations; and to the refusal of the court so to rule exception was taken.

We think the question arising upon these facts should have been disposed of as one of law.v Kelly was not the agent of Weber for the' purpose of making the payment. It was in fact a payment to himself, for he was then assignee of the judgment and of whatever claim Flaherty had against Weber. The whole transaction savors of collusion between himself and Flaherty to the prejudice of Weber. It is a well settled rule that no person can make a payment upon an indebtedness which will operate as a new promise to take it out of the statute of limitations, except the debtor or his authorized agént.

In Smith v. Ryan (66 N. Y., 352) this rule is laid down at page 356 in these words: The principle is recognized in all the cases, that a payment which is to operate as an acknowledgment must be made by the debtor or his authorized agent; that is, an agent having authority to make a new promise, or to perform for the party the very act which is to be the-evidence of a new promise.” (Harper v. Fairley, 53 N. Y., 442; First National Bank of Utica v. Ballou, 2 Lans., 120; affirmed 40 N. Y., 155.) * * * There is no agency as between several joint debtors, or between principal and surety, or between an insolvent debtor-and his assignees, which will make a payment by one evidence of an acknowledgment of the debt of the others so as to revive the demand.”

It would seem to follow from the principle on which that case rests that the debtor of the defendant, in the payment of his debt to the plaintiff, was not the agent of the, defendant.

In Smith v. Ryan the debtor had delivered to his creditor the note of a third person not then due, to apply upon the indebtedness. When the note matured- the-maker paid it to the creditor, who applied the money upon the debt, and the question was, whether that payment made by the maker of the note could operate as a new promise to take the indebtedness, for which the suit was brought, out of the operation of the statute. The court held in substance that it could not, because there was no relation of principal and agent between the maker of the note and the original debtor, and that the payment could not therefore be construed against such debtor as a promise to pay the indebtedness at the time the note was paid, although the delivery of the note would be evidence of such a promise at the time of the delivery.

In this case, to make the payment by Kelly of the indebtedness to the testator, to himself upon his own judgment, operate as a new promise to take the original indebtedness to 'Flaüerty out of the statute for the benefit of Kelly, the court must hold that the relation of principal and agent existed between Weber and Kelly to an extent that would have authorized Kelly to make a new promise for Weber, which would revive the debt. We think there is no principle upon which that can be held. The whole proceeding as against Weber, the testator, was in inviiem, by which Flaherty acquired the right to compel Kelly to pay the amount of his indebtedness to Weber, into court for his benefit, and the mere fact that Weber did not choose to appear in the action for the purpose of contesting that right, cannot be construed into a consent on his part that Kelly should become his agent to make a .new promise in any form either to Flaherty or to himself that would revive or continue any indebtedness he might have owed to Flaherty. Payment by a debtor personally or by his authority is nothing more than evidence from which an intent to renew the original promise may be inferred. (Shoemaker v. Benedict, 1 Kern., 185; McLaren v. McMartin, 36 N. Y., 88.)

The court should, therefore, have disposed of this question by instructing the jury that the act of Kelly in paying the money to the sherifE, under the circumstances, was not evidence of a promise on the part of Weber, the testator, which could take the claim out of the' statute of limitations. For the error in refusing so to do, the judgment must be reversed, and a new trial granted. ■

.There.are in the case exceptions amounting to, something like 120 in number; and very numerous objections where exceptions were not taken.

It is quite probable. that some of the exceptions raise questions fatal to a recovery, but we do not think it our duty to sift them out of the crude mass presented, for -the purpose of considering them. It is enough that there must be a new trial upon the question already considered.

The judgment must be. reversed and a new trial granted, with costs to abide the event.,

Daniels, J., concurred; Brady, J., not acting.

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


text:
    In the Matter of the Petition of WILLIAM T. BLODGETT and Others to Vacate an Assessment, etc.

      Constitution, a/rt. 3, sec. 16 — When the title of an act sufficiently expresses its subjects— 1870, chap. 593 — Assessment — objection to the width of the flagging — awarding of contract to the lowest bidder.

    Chapter 593 of 1870, entitled “An act in relation to regulating and. grading the Eighth avenue in the city of New York,” after providing for the regulating and grading of that avenue, confers upon the commissionereof public works power to change the grade between the Eighth and Ninth avenues, of any ■ streets intersecting Eighth avenue between Fifty-ninth and One Hundred and Twenty-second streets, in such manner as will best make such grade conform to the grade of Eighth avenue.

      Held, that the subject of changing the grades of. the intersecting streets was sufficiently expressed in the title of the act to satisfy the requirements of section 16 of article 3 of the Constitution.
    The specifications and contract, upon which bids were invited and made, provided that, “ in case the grade should be changed in Eighty-second street, or the adjoining streets, during the progress of the work, the contractor is to conform to the altered grade at the prices established, so far as they are applicable.” Held, that the insertion of this clause did not violate the law requiring the contract to be let to the lowest bidder.
    An owner of property in New York city, assessed for flagging the sidewalk in front of his lot; cannot have the assessment therefor vacated because the flagging of the sidewalk was laid only four, instead of twelve, feet in width.
    Appeal from an order of the Special Term vacating an assessment.
    The petitioners claimed that the street was not worked upon the legal grade; that the sidewalks were not of the' width provided by law; that the advertisement for proposals and the contract, contained provisions for doing work for which no estimate of quantities was made.

      J. A. Beall, for the city of New York, appellant.

      G. E. Miller, for the petitioners, respondents.
   Davis, P. J.:

The principal question arising in this case is whether the provision of the act of 1870 (chap. 593), under which the grade of Eigbty-second street was changed to conform to the new grade of Eighth avenue authorized by that act, is constitutional. This question depends wholly upon another, which is, whether the authority, to change such grade is sufficiently expressed in the title of the act to satisfy the requirements of section 16 of article 3 of the Constitution of the State. That section is as follows:

“ No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.”

The title of the act (chap. 593 of the Laws of 1870) is “An act in relation to regulating and grading the Eighth avenue in the city of New York.” The first section of the act, after providing for the regulating and grading of Eighth avenue in a certain manner, further provides that the commissioner of public works shall have power to change the grade, between the Eighth and Ninth avenues, of any streets intersecting Eighth ..avenue, between Eifty-ninth.and One Hundred:-and Twenty-second-'streets, in such-manner as will best make such grade conform to the grade of -Eighth avenue.

It is quite apparent that the grade of the Eighth avenue would necessarily to some extent affect the grade of the intersecting streets and require changes .to be made to make those streets practicable or convenient for public use in connection with the avenue. Provisions having that object' in view would be necessary incidents to a statute authorizing.a change of the grade of the avenue, for nothing can be more plain than the fact- that in- so far as the grade of the avenue is raised or lowered the grade of the intersecting streets would, as a necessary incident to that, work, have to be raised or lowered.

The provision of the Constitution above quoted has been the subject of frequent judicial construction. In the People ex rel. the City of Rochester v. Briggs (50 N. Y., 553), it was held that every presumption is in favor of the validity of legislative acts; and they are • to' be • upheld unless there is a substantial departure from- the organic law; and that in order to comply with the provision of the Constitution now under consideration, it is not requisite that the most expressive title be adopted, nor will the court criticise too rigidly the details of a bill, to find extraneous matter. The degree of particularity with ■which the title of an act is to express its subject rests in the discretion of the legislature; and where the title of a local or private act expresses a general purpose •or object, all matters fairly or reasonably connected with it, and all measures which will or may facilitate its-accomplishment, are proper to be incorporated in the act, and are germane to the title. The rules of construction thus laid down seem to us very clearly to dispose of the question in this case. An act in relation to the regulating and grading of an avenue in the city, if it authorizes the change of grade so as to affect intersecting streets, does embrace a general purpose’or object, and the change of the grade of the intersecting streets so as to conform them to the avenue is a matter fairly and reasonably connected with the subject, and the steps necessary to be taken to make such streets so conform are all measures ■ which will facilitate the accomplishment of the general purpose, and are, therefore, properly incorporated in the act, because they are germane to the title. The principle of the People ex rel. City of Rochester v. Briggs was applied to a similar local act In the Matter of Mayer (50 N. Y., 504), in which it was said by the court that “ a subject is that of which anything may be affirmed or predicated, and if the various parts of this act have respect to or relate to local improvements, the act is not obnoxious to' the constitutional objection interposed, and the degree of relationship, if it legitimately tends to the accomplishment of the general purpose, is not material. The general subject of local improvements includes their plan and construction not only, but the means by which the work is accomplished, and the proceedings necessary to be adopted for these purposes, for assessing and paying the- expenses incurred, as well as the remedies to parties for redress of grievances -growing ■out of their construction.”

The same principle of construction has been enunciated in numerous other cases. (In re Van Antwerp, 56 N. Y., 261; Neuendorff v. Duryea, 69 id., 557; In re Metropolitan Gas Co., 85 id., 526; Gloversvile v. Howell, 70 id., 287; Harris v. People, 59 id., 599; People v. Banks, 67 id., 568; In re One Hundred and Thirty-eighth Street, 86 id., 437.)

In the last cited case, it was held that the title, “An act to map •and lay out,” was sufficient to embrace provisions foi the opening of streets. It may justly be said that the title of the act undet consideration, to wit, “ An act in relation to regulating and grading Eighth avenue, in the city of New York,” does sufficiently express the conforming of intersecting streets to the change of grade; because one of the first ideas that would occur to every mind upon reading the title would be the necessity of such conformity; for it is manifest that the Eighth avenue could not be regulated and graded to be of substantial public use, unless the streets crossing it were also brought into useful connection with the new grade. It is supposed by the counsel for the respondent that the Court of Appeals In re Sackett Street (74 N. Y., 95) have adopted a different rule of construction. That case, in our judgment, decides nothing in conflict with the authorities above cited, or the views we have expressed. The title of the act in that case was to “ widen portions of Sackett, Douglass and President streets; and otherwise to alter the commissioners’ map ■ of the city of Brooklyn,” and the provision held 'unconstitutional was not one which authorized the conforming of other and intersecting streets to the plan of the-streets named in the title, but which authorized the commissioner to narrow Degraw and Union streets, which were parallel and not intersecting, and to limit tlve manner in which the property fronting on those streets should he improved and used. Those were subjects of legislation, not only not expressed in the title, but not so connected with the expressed subjects as to be incidental thereto or necessary to be performed, in order to carry out the subject expressed; and it is very obvious from the case itself, that the court had no intention to overrule or change the rules of construction laid down in the several cases above cited. We are of opinion, therefore, that the constitutional objection urged in this case cannot be maintained'.

Another objection to the validity of the assessment is based upon” the fact that the flagging of the sidewalks was not laid twelve feet in width, but only four. The only provision of law for laying flagging full width is contained in section 1 of chapter 383 of the Laws of 1870, and that seems to have been repealed by section 119 of chapter 335 of the Laws of 1873. It is the well-known usage of the city to lay the sidewalk but four feet in width in front of unoccupied lots, and the owners of lots are of course assessed only for the cost of flagging that width. It may he that under the decision In re Garvey (77 N. Y., 523), the owner of a lot so assessed would not be required to pay for the remaining eight feet if afterward laid by the city. But-he is not aggrieved within the meaning of the statute, because less work of that character is done and assessed than might have been done if the commissioners had thought it adyisable. At any rate, the only effect upon the assessment, if the laying of the sidewalk but four feet wide was unauthorized, would be to require the deduction of such proportion of the assessment as is represented by the cost of laying the flagging. But we think there' is no sound ground for vacating the assessment at all, because of the narrowness of the sidewalk. In the Matter of Garvey (77 N. Y., 523) the sidewalk was twelve feet wide, and the improvement made consisted of a single strip of flagging four feet wide, running through the center of the sidewalk. The court said : “ A sidewalk furnished with a stone-way four feet in width- may properly; be said to be flagged, although the whole surface is not covered. It was one mode of improvement, and furnished a convenient' and sufficient way for travel.” And that case held that "the city having once determined the character and extent of the pavement and laid it,-can have no-further jurisdiction over the-flagging or pavement of that sidewalk until.a-petition .has been presented therefor' “by a -majority of. the owners of the property upon the line of the proposed improvement.” This case substantially settles, therefore, that the flagging of a sidewalk four feet wide is' a .legitimate improvement, and when once made and paid for, the jurisdiction of the city to flag thé walk is exhausted until it is restored and set in motion by the petition of a majority of the owners of the property on the line of the proposed improvement, asking that the whole width of the sidewalk be flagged. It fully disposes, we think, of the objection raised to the validity of. the assessment, based upon .the fact that the sidewalk was not wholly covered by the flagging, and what' further effect it may be supposed to have it is not necessary to inquire.

Another point is made, based ujmn the fact that the advertisement for bids'for doing the work stated- that the bids were to be founded on the specifications and form of contract then open for examination at the office of the commissioner of public works. The specifications and form of contract, and the' contract actually awarded — under which the work was done — contained the following clause: “ In case the grade should be changed in Eighty-second street, or the adjoining streets, during the progress of the work, the contractor is to conform to the altered grade at the prices established, so far as they are applicable.”

It is insisted that under this clause of the specifications and bidding for work there is not such a letting of the work as is required by the statute and the ordinances of the city. We think there is no force in this objection. The language of the advertisement and of the specifications put all bidders upon an equal footing, and all had an opportunity to bid with perfect understanding that whenever the grade of an intersecting street is to be changed to conform to the grade of the Eighth avenue, the work was to be done at the same prices as those paid for the same kind of work on the avenue. The bids, therefore, embraced that work and fixed the price at which it was to be done as plainly and explicitly as the statute and ordinances require under such circumstances. It would, in our judgment, be a most eccentric application of the law to hold that the work in this case done in intersecting streets was not done under contract let to the lowest bidder.

The order of the Special Term vacating and setting aside the assessment should therefore be reversed, and the prayer of the petitioner denied, with ten dollars costs and disbursements.

The same questions arise in the matter of the petition of the Mutual Life Insurance Company to vacate an assessment for regulating, grading, etc., Seventh-sixth street and Eighth avenue to the Riverside drive.

The order in that case must also be reversed and the petition denied, with ten dollars costs and disbursements.

Ready and Daniels, JL, concurred.

Order reversed, «petition denied, with ten dollars costs and disbursements.

         Seepost, p.22.


author: Per Curiam :

text:
    JOHN HARRINGTON McLACHLIN AND DAVID McLACHLIN, Appellants, v. JAMES E. BRETT and Others, Respondents.

      Death of all the plaintiffs in am, action — when a motion to revive may he made under section 757 of the Code of Oivil Procedure — Notice of appeal — pomes' of the court to cure errors in the title of it— Oode of Oivil Procedure, secs. 723, 724, 1295, 1296, 1300.
    This action was brought by a firm, consisting of two members, against the defendants, to recover for lumber sold to them. After issue had been joined the plaintiffs died, one in October, 1876, and the other in July, 1877.' In December, 1881, the appellants, claiming to have become the owners of the alleged-cause of action, moved to have the action revived and continued in their names as the successors in interest of the deceased plaintiffs.

      Held, that the motion should have been granted.
    In the notice of appeal from the order denying their motion the appellants! ' inserted their names instead of the names of the original plaintiffs. Upon a motion to dismiss the appeal on this ground:

      Held, that it would seem that, under sections 1295, 1296 and 1300 of the Oode of Civil Procedure, the appeal might be properly so taken.
    That, if this were not so, the court had power and it was its duty, under sections 723 and 724 of the Code of Civil Procedure, to amend the title by changing it to the original title of the action.
    . Appeal by Hugh F. McLachlin and another from an order of the Special Term denying a motion to revive and continue the action, and also a motion to dismiss the said appeal.
    The action was brought by John Harrington McLachlin and Daniel McLachlin, the original plaintiffs, residents of Canada, by Magone & Holbrook, their attorneys, in September, 1876, against the defendants to recover the price of lumber alleged to have been sold to them.
    The defendants answered the complaint, and issue was thereby joined in March, 1877.
    No further proceedings were taken by the plaintiffs in the action. The defendants obtained a change of venue to the county of New York in April, 1877.
    On the 24th of October, 1876, John Harrington McLachlin, one of the plaintiffs, died intestate, at Arnprior, Canada, and on the 25th of July, 1877, an administrator of his estate was appointed by the Surrogate’s Court of -Renfrew, Ontario, Canada; and such administrator qualified and entered upon the said trust.
    - On the 27th day of July, 1877, Daniel McLachlin, the surviving plaintiff, died intestate, at said Arnprior, and on the 18th of August, 1877, an administrator was appointed by the same Surrogate’s Court, and such administrator qualified and entered upon the said trust. Both of the said estates and administrations were settled and closed.
    • Subsequently, and in- December, 1881, one Hugh F. McLachlin ard Claude McLachlin, by Edward C. James, Esq., as their attorney, o claiming to have become the owners, in their own right and individually, of the alleged cause of action against the defendants, made this motion to revive and continue the action against the defendants, by and in the name of Hugh F. McLachlin and Claude McLachlin, as successors in interest of John Harrington McLachlin and Daniel McLachlin, the plaintiffs, deceased, and that said Edward C. James be substituted as attorney for the plaintiffs in place of said Magone & Holbrook.

      Edward 0. James, for the appellants.

      James W. Howe, for the respondents.
   Per Curiam :

The motion to dismiss the appeal is based altogether upon the objection that the notice of appeal is entitled in the name of the appellants Hugh F. and Claude McLachlin. Both of the original parties to the action are dead. Hugh F. and Claude McLachlin are shown to have succeeded and become entitled to the ownership of the cause of action, and own the same now as partners carrying on business as the successors of the original plaintiffs. In the body of the notice of appeal it is shown that the appeal is from the order denying the motion that these appellants be substituted. There is no question therefore as to what the'appeal is from, nor can there be any that the parties bringing the appeal are the parties aggrieved by the order.

¥e are inclined to the opinion that under the circumstances apparent in the case it may properly be taken by the persons named as appellants under the provisions of sections 1295, 1296 and 1300 of the Code, but if for any technical reason this be not so we think we have the power and it is our duty under sections 723 and 724 of the Code to amend the title of the order so as to cure the alleged defect by changing the title to the original title of the action. The motion therefore to dismiss the appeal is denied, without costs.

The construction given to section 757 of the Code by this court in Coit v. Campbell (20 Hun, 50) was not acceptable to the Court of Appeals; and in the same case (82 N. Y., 509) that court regarded, a motion for substitution as the proper remedy in a case where at the commencement of the action there were several defendants, each of whom had successively died, holding, in substance, that the last survivor occupied the position of sole plaintiff within the intention of the section. Under that construction this case comes precisely within the provisions of section 757, and the right to substitute is conferred upon the plaintiffs who show themselves to have become the owners aud successors of the plaintiffs of the title to the subject-matter of the action and by due process have purchased from their respective representatives. The motion,' therefore, of substitution ought to have been granted. The succession in action was sufficiently established in the case to bring it clearly within the rule governing such applications, and fully satisfied tile objection upon which/the Court of Appeals seem to have disposed of Coit v. Campbell.

The order should be reversed and order of substitution granted, but under the circumstances without costs.

Present — Davis, P. J"., and Brady, J.

Motion to dismiss appeal denied, without costs. Order reversed and order of substitution granted, without costs.