author: Smith, P. J.: Haight, J.

text:
    DOLLY W. CROZIER and Others, Plaintiffs, v. CYRUS BRAY and Others, Defendants.

      Will — extent of the estate devised — when a remainder on a lapsed legacy will be sustained.

    A testator by his will provided: “I give and devise to my wife and my two daughters, Tasey and Harriet P., in common, all my land or real estate, to occupy and dispose of as they may think proper, provided that my wife and daughter Tasey have a comfortable home in the house, together with all the fuel, fruit and other proceeds of the farm to which'they will be entitled as joint owners; provided, further, that should my daughter Harriet P. die without leaving a child or children, her share of my estate be equally shared by my wife and daughter Tasey.” This devise was made subject to the payment of several small legacies. By a codicil, which was made part of the will, the testator provided, “I therefore will and direct that all that may remain of the property of my wife Hannah L., both real and personal,' at her decease, be made over to and become the property of Gyrus Bray; providing said Cyrus should decease before my wife, then the property my wife should leave at her decease shall be received by my two daughters Tasey and Harriet P., and become their property and their heirs.” The testator’s wife died before him.

      Held, that it seemed that the wife was intended to take not an estate in fee but a life estate in an undivided one-third of the real estate, with remainder to Cyrus, if living, and if not to the two daughters. (Haight, J., dissenting.)
    That it was not necessary to determine the extent of the estate to be taken by her in this case, as by reason of her death before the testator, the estate never vested in her, and that upon her death the devise did not lapse but vested in the ulterior devisee. (Haight, J., dissenting.)

      Burbank v. Whitney (34 Pick., 146), followed.
    That the codicil might be construed as providing only for the case of the death of the wife during the lifetime of the testator.

      Motion by the plaintiffs for a new trial, on exceptions taken at tbe Ontario Circuit and ordered to be heard at the General Term in the first instance.

      Charles S. Baker, for the plaintiffs.

      Edwin Hicks, for the defendants.
   Smith, P. J.:

Action to recover the possession of five-sevenths of one-third of a farm of about 180 acres of land in Seneca, Ontario county. The common source of title was Luther Whitney, who died in May, 1878, leaving a last will bearing date 13th February, 1864, and a codicil thereto, dated 19th March, 1872. By the terms of his will the testator, after providing for the payment of his debts, bequeathed to his wife, Hannah L. Whitney, certain personal property, and then provided as follows : “ I give and devise to my wife and my two daughters, Tasey and Harriet P., in common, all my land or real estate, 'to occupy and dispose of as they may think proper, pro vided that my wife and daughter Tasey have a comfortable home in the house, together with all the fuel, fruit and other proceeds of the farm to which they will be entitled as joint owners; provided further, that should my daughter Harriet P. die without leaving a child or children, her share of my estate be equally shared by my wife and daughter Tasey.” This devise was made subject to the payment of several small legacies to certain children named, amounting in all to $100. The testator then bequeathed to his daughter Cornelia, $1,000, but in case of her death without leaving a child, it was to go to his wife and daughters Tasey and Harriet P., in certain contingencies. By his codicil, after making it a part of his will, the testator provided as follows: “ I therefore will and direct that all that may remain of the property of my wife, Hannah L., both real and personal, at her decease, be made over to and become the property of Cyrus Bray; providing said Cyrus should decease before my wife, then the property my wife should leave at her decease shall be received by my two daughters, Tasey and Harriet P., and become their property and their heirs.” Cyrus Bray is the husband of the daughter Harriet P., whom he married before the will was made. The testator’s wife died in 1876, before the death of her husband.

The contention relates to the share of the real estate devised to the wife; the defendants claiming the same under the gift in the codicil to Cyrus Bray, and the plaintiffs contending that the codicil is void, by reason of repugnancy to the gift to the wife, which they claim was in fee simple, absolute, and further that the gift to the wife having lapsed by reason of her dying before the testator, her share of the land descended to the testator’s heirs at law.

The question as to the estate intended to be given to the wife is not entirely clear. The words of the gift to the wife and the two daughters, ending with the words “real estate,” if they stood alone, would suffice to convey to each an undivided third in fee. The gift in the codicil to Bray, is of what “ may remain ” of the real and also of the personal property, which latter is bequeathed to the wife in words that would convey it to her absolutely. These provisions also tend to indicate an intent to give the wife a fee in the land. But the words of gift above referred to are qualified by what immediately follows them, and especially by the two provisos in the same sentence, the last of which, if it has any effect whatever, indicates very clearly that as to his daughter, Harriet, the testator intended the devise to be of a life estate or a contingent fee only. By that proviso Harriet’s share is expressly given to the wife and Tasey, in the event of her dying without leaving a child. A like intent, in respect to the share given to the wife, is indicated by the codicil, taken as a whole, which, although executed several years subsequently to the will, is in express terms made a part of it and is to be read as such.

Hndoubtedly, a devise of lands, with power of absolute disposal for the use of the devisee, without anything to qualify the words, is a gift in fee simple. There are numerous cases so holding, many of which are cited by the learned counsel for the plaintiffs, but it is unnecessary to refer to them as the doctrine is not disputed. But it has frequently been held that there is no repugnancy in a general devise or bequest to one person in terms which would ordinarily convey the whole estate, and a subsequent provision giving the same estate to another person upon the happening of a contingent event. (Smith v. Bell, 6 Pet., 68; Norris v. Beyea, 13 N. Y., 273; Terry v. Wiggins, 47 id., 512; Taggart v. Murray, 53 id., 233; Smith v. Van Ostrand, 64 id., 278; Wager v. Wager, 96 id., 164; Colt v. Heard, 10 Hun, 189.)

In Terry v. Wiggins (supra), after a devise in fee, the will contained a devise of other real estate to the same devisee “ for her own personal and independent use and maintenance, with full power to sell or otherwise dispose of the same in part or in the whole, if she should require it or deem it expedient so to do,” and upon her death, a devise over to a religious society. It was held that by the last devise, the devisee took a life estate only, with a conditional power of disposal annexed, which did not operate to enlarge the estate to a fee, and that the limitation over was not repugnant to the devise, and was valid. The court considered that the power of disposal annexed to the gift only authorized a disposition by the devisee which should take effect during her lifetime and not by will, and stress was laid upon that fact, among others, in determining that the estate given was for life only.

In the present case, the words “to dispose of” (which are the only words that can be regarded as expressly giving an absolute power of disposal, if such power is given at all), are coupled with the words “ to occupy,” which latter words could have effect only during the lifetime of the respective devisees. The proviso annexed to the gift that the wife and Tasey should have “a comfortable home in the house” on the laud devised, “together with all the fuel, fruit and other proceeds” of the farm, indicates that the testator had in mind, to make provision for them during their lives, and inasmuch as such provision for their benefit is to the exclusion of the daughter Harriet, it is, to that extent, a modification of the gift to the three as tenants in common. If the devise is of a life estate only, the power of disposal is limited to such disposition as a tenant for life can make, unless there are other words clearly indicating that a larger power was intended. (Henderson v. Blackburn, 104 Ill., 227, and cases there cited.)

Every will must be construed ex visceribus suis, and in the present case there is much reason for saying that a proper interpretation of the will and the codicil, leads to the conclusion that the wife was intended to take a life estate in an undivided third of the real estate, remainder to Cyrus Bray, if living at the death of the wife, and if not, to the daughters Harriet and Tasey; that Harriet was to take a life estate in one-tliird, and in case of her death without issue, remainder to the wife and Tasey; and that Tasey was to take one-third in fee, subject to the use of the house and of the products of the farm by the wife and Harriet during their fives. The litigation in this action involves, however, the share of the wife alone, and the provisions of the will in respect to the daughters are important .only as they bear upon the meaning of the devise to the wife.

The interpretation above suggested gives effect to every provision of the will and codicil, in accordance with a cardinal rule to be observed in the construction of wills (Chrystie v. Phyfe, 19 N. Y., 344, 438; Taggart v. Murray, 53 id., 230, 236), while the construction contended for by the plaintiffs’ counsel ignores the codicil, and, to a great extent, the provisos and other qualifying words annexed to the gift.

We do not, however, decide the question above discussed, not deeming it*necessary to do so in order to dispose of the case, for whatever the extent of the devise to the wife, as she did not survive the testator, the estate never vested in her. Thereupon, however, we conceive the estate did not lapse, but the ulterior devise contained in the codicil took effect. The case of Burbank v. Whitney (24 Pick., 146), cited by the defendants’ counsel, is in point. To the same effect are Mowatt v. Carow (7 Paige, 328); Norris v. Beyea (3 Kern., 273); Downing v. Marshall (23 N. Y., 366); McLean v. Freeman (9 Hun, 246); S. C., affirmed (70 N. Y., 81); Wager v. Wager (96 id., 164). In the case last cited it was said by Huger, Cli. J., delivering the opinion of the court, that an ulterior devise, to take effect upon the defeasance of a former ®ne, will attach as well when the failure of the primary devise is by the happening of some event, such as the death of the devisee during the lifetime of the testator, as by an event occurring after his death, by which the first devise after it has taken effect is defeated, unless the ulterior devise is so connected with and dependent upon the primary one that it cannot consistently with the ]3rovisions of the will have effect if the latter fails ab initio.” Here there is no such connection or dependency, the clear intention being to give to Cyrus Pray the share which the wife would have taken if she had survived the testator. Such intent is manifest from the terms of the will and the codicil, in connection with the fact that the testator (who we are to presume did not intend to die intestate as to any part of his estate), suffered the codicil to remain as the expression of his wishes in regard to the disposition of the share in question, during the entire period of his survival of his wife. See, also, In re Stringer's Estate (6 Ch. Div., 1), cited by Andrews, J., in Van Horne v. Campbell (3 N. East. R., 316, 329),

Again, even if the wife, in case she had survived her husband, would have taken an estate in fee, the provision in the codicil giving to Bray what might remain at the death of the wife, may be held to provide only for the case of her death during the lifetime of the testator. (Livingston v. Greene, 52 N. Y., 118; Kelly v. Kelly, 61 id., 47; Embury v. Sheldon, 68 id., 227; Briggs v. Shaw, 9 Allen, 516; Kerr v. Bryan, 32 Hun, 51.) Thus construed, it is •not repugnant to the will and is valid. On the whole, we are of the opinion that it is apparent from the will and codicil that the testator intended to give the land in question to Bray, in fee, in the contingencies that have happened.

It results from these views that the motion for a new trial should be denied and judgment ordered for the defendants on the verdict.

Barker and Bradley, JJ., concurred.

Haight, J.

(dissenting), after stating the facts substantially as set forth in the foregoing opinion, said: The question presented for our determination is whether or not the provisions of the codicil are repugnant to and in conflict with the provisions of the will so that they cannot stand. It first becomes necessary to determine whether or not the devise to Hannah L. gave her a fee or life estate. If she was given a fee, then, the provision in the codicil for Cyrus Bray would be repugnant to it and void. The statute provides that “ the term heirs,’ or other words of inheritance, shall not be requisite to create or convey an estate in fee; and every grant or devise of real estate, or any interest therein hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant.” (1 R. S., 748 )

Where an estate is given in one part of a will in clear and decisive terms, such estate cannot be taken away or cut down by any subsequent words that are not as clear and decisive as - the words of the clause giving the estate. (Roseboom v. Roseboom, 81 N. Y., 356.)

In the case of Campbell v. Beaumont (91 N. Y., 464), the testator left to his wife Mary Ann,“all my property * * * to be enjoyed by her for her sole use and benefit, and in case of her decease, the same or such portion as may remain thereof, it is my will and desire that the same shall be received and enjoyed by her son Charles.” It was held that the widow took an absolute title. It appears to me that this case is in point and controlling upon the question under consideration. Whitney, the testator, first gave to his wife all his personal property forever. This bequest is absolute in terms, and without qualification, and yet, by his codicil he again attempts to give her personal property to Cyrus Bray.

Again, he devised to his wife and two daughters, in common, all of his real estate “to occupy and dispose of as they may think proper.” This language, standing alone and unqualified, is sufficient to convey the fee; if there was a remainder created, they could not well dispose of the real estate as they may think proper. lie then provided “ that my wife and daughter Tasey have a comfortable home in the house, together with all the fuel, fruit and other proceeds of the farm to which they will be entitled as joint owners,” etc. These words do not limit the devise to the wife or daughter Tasey, but expressly name them as owners. At most, they can only mean that his daughter Harriet P. should do nothing to deprive his wife and daughter Tasey from having the use of the house with such fuel and proceeds of the farm as they will be entitled to as joint owners. The interest of Harriet P. it is not necessary to consider. This devise is then made subject to certain legacies. By his codicil he directed that all that may remain of the property of his wife, both real and personal, at her decease, be made over to and become the property of Cyrus Bray. The codicil does not purport to dispose of his property, but by it the testator attempts to dispose of the property of his wife. It may be urged, however, that this interpretation of the codicil is too technical, that he only attempted to dispose of the property which the wife had received under his will. If I assume this to be the case could the provision then stand \ The widow had the personal property given to her forever. She had this interest in the real estate given to her to occupy and dispose of as she may think proper. If she was given but a life estate she could not dispose of the property “ as she may think proper,” for, in that case, she could only use the proceeds, and the fee in the land would have to be preserved for the remainderman. '

If the devise to her is limited that to Tasey is also, for the devise to both is in the same words, and yet as to Tasey no remainderman is named, and consequently the fee as to her interest remains undisposed of. It therefore appears to me that the provisions of the codicil are repugnant to and in conflict with the provisions of the will; that the devise under the will gave the wife a fee, and that the estate thus given is not cut down by the words made use of in the codicil. (See Howard v. Carusi, 109 U. S., 725; Van Horne v. Campbell, 3 Eastern R., 84.)

I am aware that in construing wills the intention of the testator must be our chief guide, and that in determining such intent we must take into consideration the whole instrument and give effect to all of its provisions so far as we can consistently with the rules of law; but where we find provisions in conflict with and repugnant to each other, one must fail, and in such case the rule as stated in Roseboom v. Roseboom (supra), must prevail.

Our attention has been called to the case of Wager v. Wager (96 N. Y., 164) in which case the devise was to the daughter, but' provided that in case she should die leaving no issue, before the death of the testator’s wife, that then in that case the property should go to the wife. It will be observed that in that case the only words used were the words “I give, devise, and bequeath.” She was not given the power to dispose of the property as she might think proper. There was nothing repugnant • to or in conflict with the gift to the wife in case of the daughter’s death without issue. It therefore appears that the case is clearly distinguishable in this regard.

It is now contended that because of the death of the wife during the life of the testator, that Bray, as the ulterior devisee, can take. This would undoubtedly be the case were it not for the fact that the devise to Bray was void for repugnancy; but being void, it cannot be made valid by the death of the first taker. I am aware that a single expression occurring in the opinion in 24 Pickering, 146-156, appears to favor the idea that a void provision of a will may be made valid by the death of a first devisee during the lifetime of the testator. But I have been unable to find any such doctrine promulgated in the courts of this State. On the contray, in every case where the ulterior devisee has been permitted to take on account of such prior death of the first devisee, it has ’been upon the ground that the provisions of the will were valid and not repugnant. In the case of Wager v. Wager (supra), the first devisee died during the lifetime of the testator, and yet Ruger, Oh. J., proceeds in an elaborate opinion to show that the provisions of that will were not repugnant. If the doctrine now contended for is to prevail, it made no difference whether the provisions were repugnant or not, for, if repugnant, it would cease to be so on such prior death of the first taker. The cases of Norris v. Beyea (13 N. Y., 273, 285); Downing v. Marshall (23 id., 366, 370); and McLean v. Freeman (70 id., 81, 85), are to the same effect.

In the case of Van Horne v. Campbell (3 East. R., 84), it is said that the In re Stringer Estate (6 Ch. Div., 1), was reversed on appeal on two grounds: First. That as the first gift failed by the death of the primary devisee before the death of the testator, the second devisee took effect as a primary limitation. Second. That on the whole will the intention was that the primary devisee should have only a life estate. I have carefully read the opinions in the latter case, and I do not understand that the reversal was placed upon the first ground, but upon the ground that the provisions of the will were not repugnant, that the first devisee took only a life estate.

In the cases of Hughes v. Ellis (20 Beavan, 193); and Greated v. Greated (26 id., 621), the primary devisees died during the lifetime of the testator, and yet it was held that the ulterior devisee could not take for the reason that the provisions of the will under which he claimed were repugnant and void.

Again, it is said that the “ decease ” mentioned in the codicil was intended to mean “ decease ” during the lifetime of the testator. But it appears to me that a careful reading of the codicil will dispose of this question: “ I therefore will and direct that all that may remain of the property of my wife, etc., at her decease, be made over to and become the property of Cyrus Bray.” If the “ decease ” of the wife means “ decease ” during the life of the testator, what property of the wife could then “ remain ” % She had to survive the testator in order to take any property under the will. Dying before she could take nothing and nothing could remain. The codicil would thus be meaningless. (Nellis v. Nellis, 99 N. Y., 505.) The motion for new trial should be granted.

Motion for new trial denied, and judgment ordered for the defendants upon the verdict.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    ERASTUS KOON, Appellant, v. JACOB BRINKERHOFF, Respondent.

      ¡Vendor retaining goods after a sale — Tie cannot sell them, because of the neglect of the vendee to remove them.

    In this action, brought to recover damages for the conversion of certain hay Snd straw, claimed by the plaintiff as the assignee of one Ely, the defendant pleaded as a defense that he had sold at auction to one Ely, the hay and straw which stood upon his land, and notified him to remove them immediately; that upon his neglect to remove them he again notified him that if they were not removed by a day fixed they would be sold at public auction; that thereafter, and after ■notice had been given by posting notices in public places, the hay and straw were again sold to another person, against the protest of the plaintiff who was present.

      Meld, that the defendant had no right to sell the hay and straw because of the neglect of the vendee to remove them, and that he was liable as for a conversion thereof for the damages occasioned to the plaintiff.
    Appeal from a final judgment, entered in Cayuga county, upon an order of the Special Term of that county overruling the plaintiff’s demurrer to the second defense alleged in defendant’s answer.

      Frank G. Gushing, for the appellant.

      E. A. Wood-in, for the respondent.
   Haight, J.:

This action was brought to recover for a quantity of hay and straw claimed to have been wrongfully and unlawfully converted .and disposed of by the defendant.

The second count in the answer is as follows: “For a second and further answer and defense the defendant avers that the hay and straw mentioned in plaintiff’s complaint were sold at public auction by defendant upon his premises in üwasco, N. Y., November 2-k 1882, and at such sale struck off to one John Ely; that said hay and straw being at the time of said sale the property of one James Colwell was stacked in and adjacent to defendant’s barn; that defendant needed the space occupied by said hay and straw for the purpose of storing his own crops; that immediately after the sale of said property as aforesaid defendant announced to said John Ely, in the presence and hearing of the plaintiff, that said hay and straw must be at once taken away from defendant’s premises, and that if he neglected to do so in a reasonable time the defendant would again sell it at public auction. Defendant further says that after the lapse of several days, said hay and straw still remaining unmoved, he caused to be given to said Ely a notice that if the same were not removed hy Saturday, December ninth, the same would be sold at public auction upon the premises on the following Monday morning at eight o’clock to the highest bidder; that several days public notice of the time and place of such sale was given by posting printed announcements thereof in conspicuous places in said town; that, pursuant to said notice, on the eleventh of December, at eight o’clock in the morning, the defendant caused said hay and straw to be sold at public auction, and at such sale it was struck down to the said James Colwell for eight dollars and fifty cents; that said plaintiff was present and forbid the sale, pretending to be the owner of said property as the vendee of said John Ely.1’

The plaintiff demurs to this defense on the ground that it is insufficient in law upon the face thereof. If we correctly understand the answer, it concedes that John Ely had fully completed the purchase of the hay and straw so that the title vested in him, otherwise he would not have been notified to take it away; if we are correct in this interpretation of the answer, the case would not fall within the rule where a purchaser at a public sale neglects and refuses to complete the purchase by paying the price bid, in which case the property may be resold. The question then presented is whether or not the defendant had the right to sell and dispose of the hay upon the neglect of the owner to take it away. After the purchase by Ely he doubtless had a reasonable time in which he had the right to enter the premises of the defendant and draw the hay and straw away. During such time the defendant became a bailee of the property and was bound to take such care of it as men of common prudence generally bestow on their own property of like character. After the expiration of a reasonable time and notice to the vendee to take the goods away, the .defendant’s relation to the property changed. He still, however, continued a bailee, but he was not bound to that decree of care that was previously required. He became a mere involuntary depositary and would be liable only in case of fraud and gross negligence. This rule appears to be elementary.

Story on the Law of Sales (§ 300, et seq.), says, that where the seller has performed all that is required of him by the terms of the contract as to all of the goods, and delivery alone remains to be made, the property vests in the buyer so as to subject him to the risk of any accident which may befall the subject-matter of the sale. It is not necessary that a seller deliver the goods to the buyer in order to transfer the title, since the right of property does not depend upon the actual possession. But although after the vendor has performed all that is required of him, the title of .the goods sold passes to the vendee, yet the goods may still be supposed to remain actually in his custody, and it becomes necessary, therefore, to consider what are his duties in respect to the custody in such cases. He is bound to that degree of care and attention which men of common prudence generally bestow on their own pi-oporty. This rule, however, is limited to cases where the buyer is under no obligation to remove the goods. For if a time be fixed for actual delivery and it has elapsed, or if no time having been fixed the vendee receives notice to take away the goods, the obligation of the vendor is simply to observe good faith and he is responsible only in case of fraud or gross negligence simulated to fraud. "Where the delay is occasioned by the vendee the time of delivery having elapsed or he having received notice to take the goods away, the vendor is only liable in like manner as a depositary and mandatory in case of fraud and gross negligence, the custody of the goods being solely for the advantage of the vendee.

It thus remains to be determined, whether or not a bailee or depositary of goods has the right to sell and dispose of them without the consent of the bailor.

Story on Bailments, at sections 99 and 100, says, that the depositary is bound to restore not only the thing deposited, but any increase which may have accrued from it. If the depositary had sold the deposit and afterwards repurchased it, he was, by the civil law, bound to restore the value even if it was afterwards lost without his default; and the reason assigned is that the original sale was a fraud upon the owner and could not be purged away but by a delivery of the thing itself to the owner. Our law would adjudge in such a case that the party should -not be permitted to take advantage of his own wrong, and that as the sale was a conversion of the property, the right of action of the owner was then complete and could not be varied.

Edivards on Bailments, at section 73, says, that nothing will excuse a bailee from the duty to restore the property to his bailor except he show that it was taken from him by due process of law or by a person having the paramount title or that the title of his bailor has terminated. To these exceptions mentioned by Edwards, there should be added the case of perishable property under circumstances where there was imminent danger of its destruction, before the bailor could be notified, in which case the bailee would doubtless have the right to dispose of the same upon the best terms possible for the bailor; but in other cases we do not understand that a bailee or depositary of goods has, except by due process of law, the right to sell and dispose of them. The case is different with a pledgee, for in such case it is a part of the contract that after default of the pledgor in the payment of his debt, the pledgee may sell on giving due and proper notice. The defendant was not a pledgee; the hay and straw was not perishable property within the rule which would permit the bailee to sell. We are consequently of the opinion that the defendant did not have the right to sell, and that by doing so he converted the property and became liable for the value thereof.

The judgment should be reversed and the demurrer sustained, with costs, with leave to the defendant to amend the answer within twenty days, upon payment of costs of this appeal and the demurrer.

Smith, P. J., Barker and Bradley, JJ., concurred.

So ordered.


text:
    JOHN L. SUTHERLAND and FRANCES SUTHERLAND MAJOR, as Executors and Trustees, etc., of LOT C. CLARK, Deceased, Respondents, v. ALONZO BRADNER and ANDREW J. HOLDEN, Appellants.

      General assignment — its terms and conditions cannot be subsequently altered by the assignor — he cannot show that a clause was omitted by mutual mistake, as against a judgment creditor attacking the assignment.

    This action was brought to set aside a general assignment upon the ground that it was fraudulent, in that it required the assignee to return any surplus, that might remain after paying certain creditors named in the assignment, to the assignor, without making any provision for his other general creditors. The defendants offered to show that after the recovery and docket of the plaintiffs’ judgment the assignor executed and delivered to the same assignee another assignment for the benefit of creditors.

      Held, that the evidence was properly rejected, as the lien acquired by the docket of the plaintiffs’ judgment could not bo affected by any subsequent act of the debtor, and for the further reason that as the first assignment was valid as against the assignor, he was powerless to thereafter change or alter any of its terms or conditions.
    The defendants also offered to show that the clause directing that the surplus be distributed in payment of the claims of the general creditors was omitted from the assignment through mutual mistak Held, that the evidence was properly rejected.
    Appeal from a judgment in favor of the plaintiffs, entered upon tlie decision of tbe Livingston Special Term.

      James Wood, for appellant Holden.

      John A. Vanderlvp, for appellant Bradner.

      Charles J. BisseTl, for the respondents.
   Haight, J.:

This action was brought by the plaintiffs as judgment creditors of the defendant Bradner, to set aside a general assignment made for the benefit of creditors to the defendant Holden, upon the ground that it was fraudulent and void.

On the 16th day of June, 1884, the plaintiffs recovered a judgment against the defendant Alonzo Bradner and one David McNair, for the sum of $17,698.87. The judgment-roll was filed and tho judgment docketed in the office of the clerk of New York county, and on the 17th of June, 1884, a transcript was filed and judgment docketed in Livingston county. On the 3d day of June, 1884, the defendant Bradner made and delivered to the defendant Holden an assignment under the general assignment act of 1877. At the time of making the assignment Bradner was possessed of a large real and personal estate situated in Livingston county. The assignment contained preferences. The court at the Special Term held and decided that the assignment upon its face was fraudulent and void as against the plaintiffs, and invalid as against their judgment and execution. The assignment, after the usual clause transferring all of the property of the assignor to the assignee, provides that it shall, nevertheless, be in trust to and for the intents and purposes named therein. It then provides that the assignee shall take possession of all the lands, tenements and hereditaments, and shall sell and dispose of the same, and that he shall collect all of the debts, due bills, bonds, notes of acceount, etc.; it then provides that with the proceeds of such sales and collections, the party of the second part shall pay and disburse, first, the reasonable expenses, costs, charges and commissions for executing and carrying into effect the-assignment; second, all the rents, taxes and assessments due or to-become due upon the lands, and, in the next place, to pay and discharge in full the debts owing certain creditors which are therein specially named and described. It then provides that “ the said party of the second part shall return the surplus of such net proceeds and avails, after the payment of the said debts, demands and liabilities, as herein provided, if any there shall be to the said party of the second part, his executors, administrators or assigns.”

It will be observed that the assignment fails to make any provision for the sale by the assignee of the personal property, or for the application of the proceeds which might arise from such sale. In the second place the assignment fails to make any provision for the payment of general creditors out of the surplus remaining after payment of the preferred creditors. The claim of the plaintiffs in this action was not preferred.

It is contended on the part of the appellant that by a fair and liberal construction of the instrument that the assignee would have the power to sell the personal property and apply the proceeds, and that after the payment of the preferred debts, if any surplus was left, that it would be his duty to pay the general creditors pro rata. But such does not appear to us to be the plain or logical reading of the assignment, at least, so far as the distributing of the surplus after payment of the preferred creditors is concerned. The assignee gets his power from the instrument. He is made a trustee to do that which he is authorized and empowered to do by the paper. After he has paid the creditors, specifically named and preferred, their said debts, demands and liabilities, he is commanded to return the surplus, if any, to the assignor. That this would render the assignment fraudulent and void as against the general creditors has been expressly held by the Court of Appeals. (Barney v. Griffin, 2 Comst., 365; Collomb v. Caldwell, 16 N. Y., 484.)

• Subsequent to the entry of the plaintiffs’ judgment the defendant Bradner executed and delivered to the defendant Holden another assignment for the benefit of creditors. Upon the trial the defendant offered to read this assignment in evidence. It was excluded by the court, and we think properly. The lien of the plaintiff’s judgment had already attached to the real estate owned by the defendant Bradner. No act of Bradner’s in reconveying his property could relieve it of such lien. Again, the first assignment was only fraudulent and void as against creditors. As to Bradner it was valid. He consequently had nothing which he could convey by the second assignment, and he was powerless to change or alter the conditions of the first. In the case of Porter v. Williams (9 N. Y., 142), it was held that an assignment could not be made valid by a subsequent assignment. That as between the parties the assignment was valid, and the assignor having parted with his title, no further power remained in him to change or modify iis terms.

Upon the trial the defendants offered to show that the clause directing that the surplus be distributed in payment of the claims of the general creditors was omitted from the assignment through mutual mistake. This evidence was excluded by the court. The plaintiffs were not parties to the assignment, consequently there can be no mutual mistake so far as they are concerned. Since the assignment was made they have procured their judgment and perfected their lien. If the assignment is void the lien of their judgment attaches to all the real estate that purported to be transferred by the assignment. Assuming that their judgment has been properly obtained, neither a court oí equity nor of law has the right to deprive them of such lien. It is true that a court of equity has the power in a proper case to reform contracts made by parties where there has been a mutual mistake. This power exists for the purpose of preserving the rights and liabilities of the contracting parties to each other. It does. not exist for the purpose of depriving third persons, individuals not parties to the instrument, of statutory rights acquired by them. Assignments with preferences are not favored in the law, and we are not aware of any principle of equity that would justify the court in depriving the diligent' creditor of the liens secured by him through proceedings authorized by law. ( Warner v. Jaffray, 96 N. Y., 248, 255.)

We are of the opinion that the judgment is correct and should be affirmed.

Smith, P. J., Barker and Bradley, JJ., concurred.

Judgment affirmed, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. FRANK ROBBINS, Defendant.

      Game laws — by whom, actions to recover penalties for a violation of them can be brought— 1883, chap. 317, sec. 1; 1879, chap-. 534. sec. 33.
    Section 1 of chapter 817 of 1883, authorizing the governor to appoint persons to act as game and fish protectors, to enforce the game laws and to bring actions and proceedings in the name of the people of the State to recover any penalties for violations thereof, did not repeal so much of section 33 of chapter 534 of 1879, as authorizes actions and proceedings to recover such penalties to be instituted by any person in his own name.
    The recovery of a judgment for such a penalty in an action so brought by a private person is a bar to any subsequent action to Tecover a penalty for the same wrongful action brought in the name of the people, pursuant to the said act of 1883.
    Motion on the part of the plaintiff for new trial, upon exceptions ordered to be heard at the General Term in the first instance.

      I. W. Near, district attorney, for the plaintiff.

      Monroe Wheeler, for the defendant.
   Haight, J.:

This action was brought upon the request of one of the game and fish protectors of the State to recover of the defendant certain penalties for violations of sections 23 and 24 of chapter 534 of the Laws of 1879, as amended by chapter 531 of the Laws of 1880. The action was brought pursuant to section 1 of chapter 591 of the Laws of 1880, as amended by chapter 317 of the Laws of 1883. The defense interposed was that prior to the commencement of this action one Douglas Lockwood ¿had brought an action against the defendant before a justice of the peace of the county of Steuben, for the same cause of action alleged in the first count of the complaint herein, and had recovered a judgment against the defendant for the sum of twenty-five dollars and costs, being the amount of one penalty given by the statute; also, that prior to the commencement of this action Douglas Lockwood had brought another action against this defendant and one William Westcott before a justice of the peace of the county of Steuben, for the same cause of action alleged in the second count of the complaint herein, and had recovered a judgment for the sum of twenty-five dollars and costs, being the amount of one penalty given by the statute. Upon the trial the court directed a verdict in favor of the defendant, which direction was excepted to by the district attorney.

The only question presented for review upon this motion is whether or not the actions brought and judgments recovered by Lockwood before the justice of the peace are a bar to this action.

It appears to us that this question is settled by the express provisions of the statute. The penalties sued for are given by sections 23 and 24 of chapter 534 of the Laws of 1879, as amended by chapter 531 of the Laws of 1880. Section 33 of chapter 534 of the Laws of 1879, provides that “all penalties imposed by this act may be recovered with costs of suit by any person in his own name, or by any society in its name, upon such society giving security for costs before any justice of the peace in the county where the offense was committed or in an adjoining county, when the amount does not exceed the jurisdiction of such justice; or when such suit shall be brought in the city of New York, before any justice of the district court or of the Marine Court of said city, and such penalties may be recovered in the like manner in any court of record in this State; but on recovery by the plaintiff in such case for a less sum than fifty dollars, the plaintiff shall only be entitled to costs to an amount equal to the amount of such recovery; and it shall be the duty of any district attorney in this State, and he is hereby required to prosecute or to commence actions in the name of the people of this State for the recovery of the penalties allowed hereby upon receiving proper information,” etc.

It will be observed that under this statute the legislate has given any individual or society the right to bring and maintain an action for the penalties provided for in the act, as well as the district attorney of the county, in the name of the people of the State. It remains to be determined whether or not this section has been amended or repealed.

Section 1, of chapter 311 of the Laws of 1883, provides that “ the governor is hereby authorized, upon the passage of this act, to appoint eight, and he may in his discretion increase the number of said appointments to sixteen persons, to be known as game and fish protectors, whose duty it shall be to enforce the statutes for the preservation of moose, .wild deer, birds and fish, or any other game laws, and to bring, or cause to be brought, actions and proceedings in the name of the people of the State to recover any penalties or amounts, or to punish any parties for the violation of said statutes or laws. Such actions may be brought in the name of the people in the like cases in the same courts and under the same circumstances as they might nov¡ or may hei'eafter be brought by any individual under or by virtue of any existing or hereafter enacted statutes for the protection of deer,, game and fish, or any of them.”

It is contended that this section is in conflict with and repugnant to the provisions of section 33. Such, however, does not appear to us to be the case. On .the contrary, it appears to express the legislative intent to preserve the provisions of that section. The familiar rule of construing statutes is that a statute shall not be repealed by a subsequent act unless by express terms or by provisions which are repugnant to and in conflict with it so that the two cannot stand together, thus indicating a legislative intent to repeal the former statute. -Section 33 is not repealed by express terms. There is nothing in section 1 of the subsequent act which is in conflict with or repugnant to its provisions. To be sure, it provides that the action may be maintained in the name of the people of the State by any game and fish protector, thus adding another individual to the list given by section 33 who may bring the action for the penalty. Such action, however, when brought by the game and fish protector, has to be brought in the name of the people of the State, and may be brought in like cases in the same courts and under the same circumstances as they might now or may hereafter be brought by any individual,” etc. T.lie phrase “ or may hereafter be brought by any individual,” appears to us to make clear the legislative intent to preserve section 33; for if it was intended to repeal it, the actions could not hereafter be brought by an individual.

There can be but one recovery for the same violation of' the statute. Otherwise, every person in the State could maintain an action and recover the penalty. It follows that Lockwood had the right to maintain the actions prosecuted by him and recover the penalties prescribed for the violations complained of, and that such recovery becomes a bar to any other action for the same penalties.

The motion for new trial should be denied, and judgment ordered for the defendant upon the verdict.

Smith, P. J., Bradley and Barker, JJ., concurred.

Motion for new trial denied, and judgment ordered for the defendant on the verdict.


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    ANSON A. GIBBS, Appellant, v. CHARLES COYKENDALL, Respondent.

      Agister — liability of, for diseases contracted by cattle.

    This action ivas brought to recover damages for the loss of eighteen head of cattle which the plaintiff had hired the defendant to pasture upon his farm. The cattle which were sound and healthy when turned into the pasture, soon after became sick and died of Texan fever, which disease they contracted from the dejections of Texan cattle which the defendant had previously pastured upon the farm, of which fact the plaintiff was ignorant.

      Meld, that as the Jury found that the defendant did not, at the time of receiving the plaintiff's cattle, know that there was danger of native cattle contracting the disease by being pastured upon fields previously occupied by Texan cattle, he was not liable for the damages sustained by the plaintiff.
    That the liability of native cattle to contract such disease under such circumstances was not sufficiently well known among the farmers of this State to charge ■ the defendant with knowledge of that fact.
    Appeal from a judgment in favor of the defendant, entered upon a verdict rendered at the Livingston Circuit, and from an order denying a motion for new trial.

      James Jfood, for the appellant.
    _D. W. Noyes, for the respondent,
   Haight, J.:

This action was brought to recover the value of eighteen head of cattle. The plaintiff had hired the defendant to pasture the cattle in question upon his farm. The defendant had previously depastured his field with Texan cattle. The plaintiff’s cattle were sound and healthy when turned into the defendant’s pasture, but within two or three weeks thereafter they were taken sick with a disease known as Texan fever and died. The disease was contracted from poisonous or infectious matter left upon the field by the Texan cattle. Evidence was given by the plaintiff upon the trial tending to show that the defendant knew that native cattle were liable to contract the disease by pasturing in fields previously occupied by Texan cattle, and that the plaintiff did not know that Texan cattle had previously been depastured on these fields. Evidence was given on behalf of the defendant to the effect that he did not know that native cattle were liable to contract the disease by being pastured upon fields previously occupied by Texan cattle. This question of fact was submitted to the jury under the instruction that if the defendant knew that there was danger of native cattle contracting the disease by being pastured upon fields previously occupied by Texan cattle, that he should have informed the plaintiff of the fact that Texan cattle had been pastured upon his premises before the plaintiff had turned his cattle in, and that in failing to inform the plaintiff he was guilty of negligence and would be liable, but that if he did not know of the dangers attendant upon pasturing native cattle upon fields previously occupied by Texan cattle, then he would not be liable. The jury found for the defendant. After the testimony had closed, counsel for the plaintiff requested the court to charge the jury “ that if the jury believed that Texan cattle had been pastured in the lot, and that Texan fever could be communicated to native cattle pasturing in the lot where Texan cattle had been pastured, that the plaintiff’s cattle died of Texan fever communicated to them from the noxious emanations of the Texan cattle pastured before they went into the pasture, then the plaintiff was entitled to recover; that the defendant was bound to furnish a healthy and safe pasture so far as poisonous substances in the field were concerned.” Plaintiff’s counsel also requested the court to charge “ that the effect of the introduction of Texan cattle was a matter of public notoriety; that it had been known since 1868, and had been the subject of public discussion; that commissioners had been appointed by the United' States government to investigate it, and that the defendant was bound to know of the effect of pasturing Texan cattle where native cattle were to be pastured from the publicity that had been given to it, and that it was his duty to notify the plaintiff that Texan cattle had been pastured on the lot when the bargain for pasturing was made.” Both of these requests were refused, and the exceptions taken on such refusal present the only questions which we- are called upon to determine upon this appeal. The questions thus presented are somewhat novel, and yet we think they may be properly disposed of upon well recognized principles. An agister of cattle is a bailee for hire, and as such is bound to use ordinary diligence properly to care for and protect the cattle placed in his charge, and is responsible for loss occasioned by his negligence. He is bound to furnish a pasture secure against the ordinary accidents incident to the cattle to be pastured. The field must be properly fenced and be free from dangerous places or obstacles. A failure in these respects will render him liable for damages occasioned thereby. But he is not an insurer of the property, and unless he is guilty of negligence he would not be liable for injuries that may be suffered through other causes, and over which he has no control. He is bound to use ordinary care, that care which an ordinarily prudent person would exercise over his own property of like character.

In the case of Claflin v. Meyer (75 N. Y., 260) it was held that a warehouseman was not liable where a burglar had broken into the warehouse and stolen goods where the warehouseman liad exercised ordinary diligence to prevent such burglary. In the case of Morgan v. Crocker (62 N. Y., 626; reversing 3 T. & C., 301), the defendant was the keeper of cattle yards in the city of Buffalo. The defendant had received cattle at the yards to be kept over night and fed. During a violent storm the yards were overflowed and the cattle were drowned. It was held that the defendant was not guilty of negligence, though the yards had previously been overflowed, but not to an extent to endanger the lives of cattle, and consequently the defendant was not liable.

In the case under consideration there is no claim that the cattle suffered because of any dangerous place or obstacle in the field. It was from deleterious influences, dejections from Texas cattle or poisonous matter, that affected the soil or vegetable growth in the field which could not be seen or known to exist, and which could not well be guarded against unless it was known that Texan cattle were liable to thus infect the field. Consequently we are of the opinion that the defendant was guilty of no negligence unless he possessed such knowledge, and the jury has found that he did not.

Again, it is claimed that he ought to have known of the deleterious influences that such cattle would create. It is true that like trouble had been occasioned in several of the western States, and to some extent in this State, that it had been the subject of investigation by the government, and in some of the States laws had been passed prohibiting the pasturing of Texan cattle. But the liability of native cattle to contract the disease from Texan cattle was but little known or understood in this State. It was not a matter of such public notoriety among our farmers as would justify the court in charging, as a matter of law, that the defendant was bound to have known it. We are consequently of the opinion that the court did not err in refusing to charge as requested, and that the judgment and order should be affirmed.

Smith, P. J., Barker and Bradley, JJ'., concurred.

Judgment and order affirmed.


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    EZEKIEL G. WOOD and HENRY S. THOMAS, Respondents, v. WINFIELD S. RAYDURE, Appellant, Impleaded with JOHN T. WATSON.

      Pleading — a defendant may deny allegations of the complaint upon information and helief— Code of Civil Procedure, secs. 500, 524, 526.
    Under the provisions of the Code of Civil Procedure a defendant may in his answer deny, upon information and belief, allegations of the complaint when he has no personal knowledge as to the facts alleged, but has information sufficient to induce him to believe that the allegations are not true.
    Appeal from an order of the Allegany Special Term, directing judgment- against the defendant Raydure, upon the ground that his answer was frivolous.

      Rufus Scott, for the appellant.

      S. E. Cheeseman, for the respondents.
   Haight, J.:

This action was brought to recover the amount of a promissory note alleged to have been made by the defendants, who were copartners, and also for goods, wares and merchandise sold and delivered to them as such. The defendant Raydure answers separately and admits that the defendants were copartners at the time stated in the complaint, doing business under the firm name of Watson & Raydure, and that the plaintiffs were copartners doing business under the firm name of Wood & Thomas, and then upon information and belief he denies each and every allegation of the complaint.

The only question presented for our consideration is, whether or not a defendant can deny upon information and heUef. Upon this question there appears to be some conflict in the authorities. In the case of Swinburne v. Stockwell (58 How., 312), Tappan, J., at Special Term, held that such an answer was frivolous and not authorized by the Code. This case was followed in the case of Pratt Manufacturing Company v. Jordan Iron and Chemical Company (33 Hun, 143, also 544); whilst, on the contrary, it was held that such a denial is authorized by the provisions of the Code, and is not frivolous, in Ledgerwood Manufacturing Co. v. Baird, 14 Abb. N. C., 318; Stent v. Continental National Bank, 5 id., 88; Metraz v. Pearsall, 5 id., 90; Henderson v. Manning, 5 N. Y. Civ. Pro. R., 221; Brotherton v. Downey, 59 How., 206; S. C., 21 Hun, 436; Sheldon v. Sabin, 4 N. Y. Civ. Pro. R., 4; Macauley v. The Bromell & Barkley Printing Co., 67 How., 252; Musgrove v. The Mayor, 51 N. Y. Supr. Ct. [19 J. & S.], 528; and Maclay v. Sands, 94 U. S. R., 586. For a full review of the authorities, see note in 15 Abb. N. C., 269; also 31 Alb. L. J., 159.

After this array of authorities it would seem as if the question ought to be settled and that no further discussion was necessary. Inasmuch, however, as the precise question does not appear to have been passed upon in this department or the Court of Appeals, we have concluded to examifie briefly the provisions of the Code.

Section 500 provides that the answer of the defendant must contain, first, a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.” It will be observed that this section fails to prescribe the form of the denial.. It does not provide whether it shall be upon positive knowledge or upon information, except in the event where he has no knowledge or information sufficient to form a belief, in which case it may be in that form.

Section 3355 provides that for the purpose of determining the effect ■ of the different provisions of this act with respect to each other, they are deemed to have been enacted simultaneously. The various sections of the Code are therefore to be construed together.

Section 526 provides that “ the affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true.” Thus by implication the authority to plead upon information and belief is not only given in section 500 but in section 526.

Section 524 provides : “ The allegations or denials in a verified pleading must in form be stated to be made by the party pleading, unless they are therein stated to be made upon the information and belief of the party they must be regarded for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. An allegation that the party has not sufficient knowledge or information to form a belief with respect to a matter, must, for the same purposes, be regarded, as an allegation that the person verifying the pleading has not such knowledge or information.” If there was any doubt as to the authority to plead upon information and belief under the other section referred to, it would appear to be removed by the express provisions of this section, and denials are placed upon the same footing with allegations. The allegations or denials in a verified pleading must in form be stated to be made by the party pleading unless the allegations or denials are therein stated to be made upon information and belief of the party, etc., under this' section the party pleading, if he has personal knowledge, is required to make his allegations upon personal knowledge, or if he is answering and has personal knowledge of the subject-matter alleged in the complaint, his denial must be upon personal knowledge. If he has not personal knowledge, but has information upon which he has formed a belief, then the denials must be upon information and belief. Or, if he has not personal knowledge or information sufficient to form a belief, then his denial may be that he has not sufficient knowledge or information to form a belief, and any departure from this course would be perjury and subject the pleader to a criminal prosecution.

A construction of section 500, which would deprive a defendant of the right to make a general or specific denial upon information and belief, would in many cases deprive him of the right to put in issue the allegations of the complaint, or else in his verification of the pleading, force him to swear to that which was not true. Take the case under consideration; the promissory note alleged in the .complaint is alleged to have been made by the firm of which the defendant is a member. Either member of the firm had the power to make the note and sign the firm name. The defendant answering may have positive knowledge that he did not sign the note himself. He may have no knowledge as to whether or not it was signed by the other member of the firm. He may, however, have been informed by the other member of the firm that he had never signed or delivered such a note; having confidence in the statements of his copartner, he has information which he believes, to the .effect that the note was never signed by either of the firm. He could not truthfully say that' he had no knowledge or information sufficient to form a belief, because he has been informed and believes that his copartner never signed the note. Can it be that it was intended to deprive him of the right to put in issue and raise the question as to whether or not the note was a forgery ? We think not; to our mind section 524 makes clear his right to deny upon information and belief, when he has such information and belief and. has not positive knowledge.

The order should be reversed and judgment vacated, with ten, dollars costs and disbursements.

Smith, P. J., and Bradley, J., concurred; Barker, J., not voting.

Order reversed and judgment vacated, with ten dollars costs and disbursements.


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    HENRY N. SMITH, Respondent, v. JOSEPH C. PFISTER and Another, Appellants.

      Practice — right to serve an amended complaint — an extension of time is a waiver of the right to object that a complaint is not sufficient to require an answer or demurrer.

    In this action, brought against the maker and indorser of a promissory note, the complaint, after declaring in the usual form upon the note, stated that the noto •was made and indorsed for the purpose, by such indorsement, of giving credit to the maker and to induce the plaintiff to sell goods, wares and merchandise to him, and that the note was passed to the plaintiff in payment for such goods and merchandise. The defendant having demanded a verified bill of particulars of the merchandise so sold, the plaintiff, within twenty days from the date of the service of the complaint, served an amended complaint leaving out the allegations of the former complaint which stated the consideration for the note and its indorsement.

      Held, that a motion of the defendants to have the amended complaint set aside, on the ground of its insufficiency,- was properly denied.
    After the service of the amended complaint the defendants procured an order extending the time to answer or demur thereto, and subsequently procured a stipulation from the plaintiff’s attorney further extending the time to answer the same.

      Held, that by procuring an order extending the time to answer or demur to the amended complaint, the defendants waived their right to deny that it was sufficient to require an answer or demur.

      Brooks v. Eanchett (21 R. Y. "Week. Dig., 267) followed. ¡

      Appeal from an order of the Erie Special Term-, denying the defendants’ motion to have plaintiff’s amended complaint set aside and held for naught.

      Frederick B. Ma/rch, for the appellants.

      Plumley & Kingston, for the respondent.
   Haight, J.:

The original complaint declared upon a promissory note in the usual form, and in addition contained the following: That said note was made by the defendant Joseph C. Pfister, and indorsed by the defendant John Gr. Crocoll, for the purpose of paying for goods, wares and merchandise sold and delivered by tills plaintiff to the defendant Pfister on the credit of such indorsement, and that Crocoll indorsed the same for the purpose of procuring for the said maker a credit with the plaintiff, knowing that it would be so applied, and that said note was so passed and so indorsed by the defendant, with his privity to the plaintiff, in payment for such goods and merchandise thus sold and delivered.”

The defendants demanded of the plaintiff a verified bill of par-. ticulars of the goods, wares and merchandise sold and delivered by the plaintiff to the defendant Pfister, upon the credit of the indorsement of the note in suit as stated and set forth in the complaint. Thereafter, and within twenty days from the date of the service of the complaint, the plaintiff served an amended complaint setting up the same cause of action as that set forth in the original complaint, leaving out, however, the allegations thereof which stated the consideration for the note and indorsement.

Subsequently the defendants procured an order from one of the .justices of this court extending their time to answer or demur to the amended complaint twenty days, which order was served upon the plaintiff’s attorneys; and subsequently still the defendants’ attorney procured a stipulation from the plaintiff’s attorneys further extending their time to answer the complaint.

After procuring the order extending the time to answer the • amended complaint, the defendants moved at Special Term for an order that the amended complaint be set aside and held for naught -for the reason that it was not sufficient as an amended complaint. This motion was denied, and from the order entered thereon appeal was taken to this court. Section 542 of the Code provides that “ within twenty days after a pleading, or the answer or demurrer thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party of course, without costs and without prejudice to the proceedings already had. But if it is made to appear to the court that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term for wdiich the cause is or may be noticed, * * * the amended pleading may be restored to its original form and such terms imposed as the court deems just.” In the case under consideration it was not made to appear that the pleading was amended for the purpose of delay, or that the adverse party would lose the benefit of a term by reason of such amendment.

The evident purpose of the amendment was to get rid of serving a bill of particulars as to the goods, wares and merchandise sold and delivered by the plaintiff to the defendant Pfister, which#it was alleged wrnre the consideration for the note. It was not necessary for the plaintiff in stating his cause of action to state the consideration upon which the note was given; having stated it the defendants had the right to answer it; to avoid this, the plaintiff saw fit, within the time given him by the Code, to serve an amended complaint omitting this allegation. We are of the opinion that this is permissible under the provisions of the section quoted.

Again, the defendants had waived their right to make the motion by procuring an order extending their time to answer the amended complaint or demur, without reserving the right to move to set it aside. The procuring of extension of time implies that the complaint is sufficient to require an answer or demurrer. (See Brooks v. Hanchett, 21 N. Y. Weekly Dig., 267, and authorities there cited.)

The order should be affirmed, with ten dollars costs and disbursements.

Smith, P. J., Barker and Bradley, JJ.,'concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Haight, J.: Smith, P. J.:

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    JOHN ATWATER, Appellant, v. LYDIA A. LOWE, Respondent.

      Trespass — liability of the owner of cattle for their trespasses while in the possession of a tenant.

    The owner of cattle is not liable for the damages caused by them, while trespassing upon the lands of others, when the cattle are in the possession and under the control of a tenant to whom both farm and cattle have been leased for a term of three years.

      Van Slyclc v. Snell (6 Lans., 299) followed.

      It seems that the decision might be different if the cattle had been in the possession of an agister, as his possession is more in the nature of that of an agent or bailee, the owner remaining constructively in possession and being entitled at any time to take the cattle into his actual possession.
    Appeal from an order of the County Court of Allegany county, granting a new trial to the defendant.

      Hichardson db Smith, for the appellant.

      A. J. Hibbard, for the respondent.
   Haight, J.:

This action was originally commenced in Justice Court and was retried in the County Court, resulting in a verdict in favor of the plaintiff. Subsequently the defendant moved for a new trial upon the minutes of the court and the motion was granted; from this order the plaintiff appeals to this court. The action was brought by the plaintiff to recover damages alleged to have been sustained by reason of a trespass upon his premises by cattle owned by the defendant. The defense was that the defendant had leased her farm with the cattle thereon to one Theron Foster for the term of three years, and that Foster was in the possession of the farm and of the cattle as her tenant at the time of the alleged trespass. The evidence given upon the trial established the defense. At the close of the evidence the defendant moved for a nonsuit, the motion was denied and exception taken. The case was then submitted to the jury and resulted in a verdict in favor of the plaintiff. The only question presented upon this appeal is whether ■ or not the owner of cattle is liable for the damages caused by them whilst trespassing upon the lands of others when the cattle are in the possession and under the control of a tenant.

This question was disposed of by the General Term of the late Fourth Department in the case of Van Slyck v. Snell (6 Lans., 299). Johnson, J., in delivering the opinion of the court, says: “ The County Court was clearly right in holding that no cause of action was shown upon the trial against the defendant Jacob Snell. Tie was the general owner of a part of the cattle which committed the trespasses, but had rented them with his farm tfi the other defend ant, who had the sole custody and control over them when the injury was done. The latter was alone liable under the circumstances for the injury.”

This is a decision of the General Term in our own department, and unless we are convinced that it is clearly erroneous we should regard it as controlling upon the question. We have not been able to find any decision in this Sta-te holding a different doctrine, but, on the contrary, it appears to be in accordance with the weight of authority.

It is said in Cooley on Torts, at page 340, that “ the liability for the trespasses of animals is imposed not because of ownership but because of possession and the duty to care for them. Therefore, if they are in the hands of an agister, or of any one who by agreement with the owner has the care and custody of them for the time being, and are suffered to escape and do mischief, he and not the owner is the party responsible.”

In the case of Kennett v. Durgin (59 N. H., 560), it was held that the o wner of cattle kept on land of another, but remaining in his own care and control, is liable for their trespasses on land of a third person, but if occupant of the land has the custody, he and not the owner of the cattle is liable.

In the case of Rossell v. Cottom (31 Penn., 525), it was held that where cattle are placed in the possession of another for agistment, the person having the absolute ownership is not liable in trespass for injuries done by them.

In the case of Ward v. Brown (64 Ill., 307), it was held that an action of trespass will not lie against the owner of cattle for trespasses committed by them while they are in the hands of an agistor or bailee.

In the ease of Moulton v. Moore (56 Vt., 700), it was held that one having the care and custody of cattle as a lessee of a farm and the stock thereon, is under the same liability for the damage done by the cattle as if he were the owner. (See, also, Tewksbury v. Bucklin, 7 N. H., 518; Gordon v. Harper, 7 Durnf. & East, 9; Hall v. Pickard, 3 Camp. Nisi Prius, 187.)

We are aware that in Massachusetts and Maine there are conflicting decisions. (See Weymouth v. Gile, 72 Me., 446; Sheridan v. Bean, 8 Metc., 284.) But in each of these cases the cattle were in the possession of an agister. An agister is one who takes cattle for hire to pasture or care for. We think there is a distinction between a person having possession of cattle as an agister and one who has possession as the lessee of a farm and the cattle thereon. In the case of an agister, the possession is more in the nature of an agent or bailee, the owner remaining constructively in the possession, may at any time take them into his actual possession ; but in the case of a lessee, the owner’s interest in the cattle is parted with for the term of the lease. Within that term he is not entitled to their products, cannot regain their possession, and they are not subject to his management or control.

Without, therefore, deciding the question as to whether or not the owner would be liable in case the cattle had escaped from the possession of an agister and committed trespass, we are of the opinion that when the escape is from the possession of a lessee of a farm and the cattle thereon, the owner is not liable for the trespass.

The order of the County Court granting a new trial should be affirmed.

Barker and Bradley, JJ., concurred.

Smith, P. J.:

If the principal question in this case were res nova, I would ■incline to the opinion that the owner of cattle cannot relieve himself from his liability for damages done by them while trespassing on the lands of another, by any arrangement he may make with a third person respecting their custody and control. If he leases them, his lessee is fro hoc vici his agent, and the owner is liable for his negligence. (Addison on Torts, 324.) But upon the authority of Van Slyck v. Snell (6 Lans., 299), I vote for affirmance.

Order affirmed, with costs of this appeal to abide the event.


author: Earner, J.:

text:
    ANTHONY SHIMER, Respondent, v. JOHN P. MOSHER, Appellant.

      Sale of property by a tax collector — it must be sold in parcels — it must be exposed to the view of bidders — right of the owner to recover it from a purchaser.

    In this action, "brought by the plaintiff to recover for the conversion of a horse and six watches, the defendant claimed title under a sale of the property under a tax warrant issued to collect a tax assessed against the plaintiff’s property.
    The defendant, was at the time the treasurer and tax receiver of the city, and as such officer issued the warrant under which the sale was made. He was not present at the sale, but authorized another person to bid off the property and subsequently received it from him. Upon the trial the evidence showed that the sale was invalid because the property was sold in one parcel, and was not within the view of or exposed to the bidders, and because bids other and higher than that of the defendant were not received.

      Held, that as .the sale was void the officer became a trespasser ab initio, and the defendant acquired no title to the property.
    That the fact tliat the plaintiff’s tax had been paid and satisfied in law, because the money had been paid into the city treasury and his tax canceled, was of no importance as the defendant did not direct the money to be so used.
    Appeal from a judgment, entered upon tbe decision of the trial court, a jury being waived.
    The action was trover for the conversion of one horse and six watches. The plaintiff recovered and their value was assessed at $160. The defendant claimed title under a sale of the property on a tax warrant, issued to collect a tax assessed upon- the plaintiff’s property.

      E. A. Woodin, for the appellant.

      Amasa J. Parker, for the respondent.
   Earner, J.:

The plaintiff was the owner of the property at the time it was seized and sold under the tax warrant for the collection of a tax assessed against his property. The court assumed that all the proceedings on the part of the common council of the city of Auburn 'in making the assessment, and all the subsequent proceedings up to the time of sale were regular and in compliance with the charter.

It was claimed by the plaintiff, that the officer charged, with tho execution of the warrant, in the manner of making the sale, was guilty of a violation of duty: First. By selling the property as one parcel and not in such separate lots as was best calculated to bring the highest price. Second. That the same was not exhibited and exposed to the view of those who attended the sale as bidders. On these questions the trial court found that the sale took place in the plaintiff’s barn, where the horse was usually kept, and when sold he was confined in a close box stall adjacent to the room where the sale took place, and the door to which was open only for a moment and that the horse was not in view of the persons who attended the sale and they had no opportunity to examine or inspect the animal; that the watches at the time of the sale were held in the hands or under the arm of the officers; that the property was put up as one lot and cried by the officers as one horse and six watches, and the same were sold and struck off together for the price of $225 ; that some of the persons present announced that they wanted to buy a horse, and others that they wanted to buy a watch; that the officer struck off the property and declared the same sold immediately after the making of the defendant’s bid and before any one else could possibly make another; that the bystanders immediately cried out that that was no sale, and asked the officer to cry the property longer as they would bid more, which he declined to do and turned the property over to the defendant. The evidence fairly tended to support these conclusions.

The evidence also tended to show that the watches were all laid in the bottom of a paper box and were covered with tissue paper; that the box was sixteen inches long and ten inches wide and four inches deep, with a cover thereon and, at the the time of the sale the cover was drawn aside some two inches, but the box was so held that no one could see the watches. It cannot be claimed from the evidence that the watches were.removed from the box or any description whatever given of the kind, quality or value of the same. Only two . bids were received, the first for ten or fifteen cents and the other was the defendants, to whom the property was struck off. The defendant at the time of the sale was the treasurer and tax receiver for the city, and as such officer issued the warrant under which the-sale took place. He did not attend the sale in person, but he authorized another to act as his agent to attend the sale and bid off the property, and who did receive the same from the hands of the officer and carried it away and delivered it to the defendant.

I think the officer disregarded the rules of law which are applicable to the public sale of property on execution and was guilty of an unpardonable abuse of the process placed in his hands, and for that reason the sale was void and the defendant acquired no title to the property. It is a rule of the common law, that when personal property is sold at a public sale, either judicial or statutory, the same should be in view of the bidders and should be sold in such separate parcels as is best calculated to bring the highest price. In Stief v. Hart (1 N. Y., 20) it was remarked that a sale of personal property without having it within the view of the bidders for the purpose of ascertaining and estimating its value was an abuse of the process of the court and was condemned by the common law without the aid of a statute regulating the manner of conducting such sales. (See, also, Linnendoll v. Doe, 14 Johns., 222; Sheldon v. Soper, Id., 352; Cresson v. Stout, 17 id., 116.)

This rule has been uniformly enforced by the courts and has its foundation in the plainest precepts of fairness and public policy. Without such a rule and its strict enforcement it would be in the power of public officers, by connivance with bidders, to perpetrate the most outrageous frauds on those whose property should be seized for sale at public auction. There is no provision in the city charter requiring the officer conducting the sale to observe the statutory rule regulating the sale of personal property on executions, but the manner of the sale as there laid down may well be taken by the courts as a proper one to he observed in making all statutory sales when no specific directions are given, and they should be made in substantial compliance therewith. In making a sale of personal property on an execution, the officer is required to offer the same in such lots and parcels as are calculated to bring the highest price, and the direction is that the same shall not be offered for sale unless it is present and within the view of those attending the sale. (Code, § 1428.) It has been held that this requirement of • the statute as to judicial sales, is but an enactment of the common law on the same subject. (Stief v. Hart, supra.)

The articles of personal property sold were so unlike in their character that no fair and reasonable excuse can be suggested as justifying their sale in one parcel. It is hardly possible to conceive of a more flagrant violation of the rule or one more likely to work an injury to the owner of the property. We cannot sanction the officer’s conduct in selling this property as one parcel, without an utter abandonment of the law so long established by repeated judicial decisions.

Nor were the watches, in my opinion, in view within any reasonable construction of the rule, so that the persons present as bidders could ascertain and estimate their value. It is true the watches were present, but that alone is not sufficient. They were no more exposed to view than they would have been if they had been in the officer’s pocket or in his desk a mile away. They were hidden from the view of those present, as the evidence tended to show, and no judge can fairly say that they were within the view of those present within the meaning of the law. We do not intend to say that it was the duty of the officer to part with the actual possession of the property and place the same in the hands of those wishing to bid, for their inspection, or that he was called upon to make any statement as to the make or value of the property. He was not called upon to make representations as to the value of the property, which might or might npt be true.

As we are of the opinion that the officer abused the process and disregarded the duties imjiosed upon him by law, and the sale was void and the officer became a trespasser ab initio, the defendant acquired no title to the property. The maxim of the law on this subject is, that if a man abuse an authority given him by law, he becomes a trespasser from the beginning. But when he abuses an authority given him by a party, he is a trespasser only from the time that he violated the license or authority gi-anted him, and his subsequent acts only will amount to a trespass. The rule is well illustrated where the owner of lands distrains a beast, damage feasant, and injures or kills the distress. In such a case the law adjudges that he seized the animal for the purpose of doing the illegal act and he is adjudged a trespasser ab initio; or, in other words, the subsequent illegality shows the party to have contemplated an illegal act all along, so that the whole becomes a trespass. (Dumont v. Smith, 4 Denio, 319; Allen v. Crofoot, 5 Wend., 507; Van Brunt v. Schenck, 13 Johns., 414; Oxley v. Watts, 1 Term. R., 12; Rock well v. Nearing, 35 N. Y., 310; Noyes v. Inhabitants of Haverhill, 11 Cush., 338; Chitty on Pleadings, p: 199.)

It is clear that an action of this character could have been maintained against the officer. The law presumes that the defendant was familiar with the law respecting the duty of the officer to sell the property in separate parcels and have the same in view of those present at the sale; and as he was present in the eye of the law, through his agent, and must have known that the officer was disre garding his duty, he gained nothing by his bid and acquired no title to the property.

In Wood v. Moorhouse (1 Lans., 405), in commenting upon the rights of a purchaser where the sale was made contrary to law, it was remarked that where a sale is made before sunrise or after sunset, when real and personal property are sold together, or personal, consisting of a variety of articles, are sold as one parcel, the purchaser, though a purchaser in good faith, is presumed to know the law, and that such sales are in violation of the law.

The appellant claims that the sale is only voidable; and until it is set aside by a judicial order or decree, on the application of an aggrieved party, the same will be regarded as valid. We have consulted all the cases to which we are referred by the learned counsel for the appellant, and we fail to observe that any of them sustain his position. Most of them are cases where there has been a judicial sale in an action where the aggrieved party is. one of the suitors, and he has applied to the power possessed by the court to set aside the sale and order another. In such cases the court has undoubted jurisdiction, and it is a very proper and expeditious way. of securing relief from a fraudulent and void or voidable sale.

We do not need to determine in this action whether the payment of the money into the city treasury has the effect to cancel the plaintiff’s tax, or whether the defendant in this action may not reclaim the money paid on the bid, for the reason that he acquired no title to the property. (Noyes v. Inhabitants of Haverhill, supra.)

As we have assumed, in the views we have expressed, that all the proceedings in the common council, in levying the tax upon the plaintiff’s property, including the issuing of the warrant and the seizure of the property sold, were regular and valid, it is unneces* sary'for us to determine whether the several refusals to find as requested by the defendant, concerning the levy of the tax and the issuing of the warrant, were erroneous or not; and if found erroneous, for that reason to grant a new trial.

The judgment should be affirmed, with costs.

Haight and Bradley, JJ., concurred; Smith, P. J., not sitting.

Judgment affirmed.