author: Learned, P. J.: Boardman, J.,

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ORRIN W. SAGE, Respondent, v. GEORGE W. SCHUYLER, Auditor of the Canal Department, Appellant.

      Illegal contract by the canal commissioners — what not a ratification thereof, by the Legislatm-e.

    December 18, 1872, the canal commissioners, without authority, let a contract for the erection of a dam. Subsequently one of the canal commissioners drew two drafts upon the auditor for payments due on the work, both of which were protested. Thereafter an arrangement was made, whereby the relator advanced money to the contractor, and received the certificates issued to him; the final certificate being issued in July, 1874. The commissioners in charge reported to the Legislature of 1873 that the contract had been made, and in the report to the Legislature of 1875 the amount of the certificates was reported as an item of public expenditure. In,1875 an act was passed appropriating $107,004.03 for the payment.of certificates issued for work on the canals, and $12,973.08 for interest thereon. A clerk in the auditor’s office testified that he prepared the budget for this appropriation, and that the aggregate of the certificates issued as aforesaid to the said contractor, and the interest thereon, were included in it.

      Held, that these facts did not show that the Legislature had knowledge of the illegality of the contract under which the work was done, and that the act of 1875 did not amount to a ratification of it,1 or authorize payment of the certificates. (Boardman, J., dissenting.)
    Appeal from a judgment, entered upon the report of a referee, in favor of the relator, granting a peremptory mandamus against the defendant, as auditor of the canal department, requiring him to audit and allow á claim of the relator against the State.
    In 1855 the State made a permanent appropriation of the waters of Cazenovia lake and of its outlet Chittenango creek to the purpose of feeding the Erie canal. At that time there were two clams on the creek, one near the outlet of the lake which belonged to the State, and the other below which belonged to private parties. The State also owned the Erieville reservoir, another feeder, the waters from which emptied into the Chittenango creole between the two dams. In 1864 the State placed in the lower dam a gate and kept a man in charge of it. In 1865 this dam was carried away by a flood and was rebuilt by the owners, the State replacing the gate. In 1872 it was again carried away. This time the owners refused to rebuild. Thereupon the canal board, deeming it necessary and proper for the interest of the State that this dam should be rebuilt, by resolution passed May 8, 1872, adopted plans and estimates for its construction, and authorized the canal commissioners to advertise the work for ten days and let the same, provided the parties whose water rights were affected should make a release satisfactory to the attorney-general. The canal commissioners accordingly advertised for proposals and announced that they would receive bids until May 21, 1872. On May 22, 1872, the canal board passed a resolution reconsidering the resolution of May eighth, and as reconsidered laying the same on the table. Nothing further was done until December 18, 1872, when the canal commissioners, assuming to act under chapter 343 of the Laws of 1872, let the work to Henry J. Mowry, accepting a bid put in by him when the work was first advertised. On this letting the commissioners did not advertise at all. A release had been executed by the mill owners in May, but it had not been approved by the attorney-general. A contract was made and the construction of the dam was begun, according to a plan which had not been submitted to the canal board, and differing in some respects from the one they had adopted. In March, 1873, Mowry obtained from one of the canal commissioners a draft upon the auditor of the canal department for $714, and in April, 1873, one for $1,292, being the amounts of the first and second estimates of the engineer. These drafts were protested for non-payment. Afterwards they were surrendered and certificates issued in their jflace. The contractor having refused to go further with the work until provision was made for payment therefor, the canal commissioner in charge applied to the relator to advance the necessary money, until provision could bo made for the payment thereof by the Legislature. Thereupon the relator and Parsons, the mill owner, obligated themselves to do so upon the assignment to them of the certificates issued or to be issued to the contractor. Work was resumed and the dam finished, and in July, 1874, a final certificate for $7,734.61 was issued to the contractor. All three certificates were duly assigned to the relator and Parsons, and Parsons afterwards assigned his interest to the relator. The commissioner in charge in his annual report for 1872, to the Legislature of 1873, stated the carrying away of the dam, that its maintenance was necessary for the State, and that the canal commissioners had contracted to have it built. In the annual report for 1874, to the Legislature of 1875, the aggregate amount of the three certificates issued was reported as an item of public expenditure. In 1875 the Legislature passed an act (chap. 263, Laws of 1875) appropriating moneys for the canal department, and among other things appropriating for the payment of certificates issued for work done on the Erie canal, etc., between January 1, 1874 and March 15, 1875, the sum of $107,004.03, and for interest on these and on other items named, the sum of $12,973.08. The witness Savage, a clerk in the auditor’s office, testifies that he made up the budget for the appropriations included in this act, and that the aggregate of the three certificates issued to the contractor, together with the proper interest thereon, was included in the above amounts. In 1876 the Legislature passed an act (chap. 425, Laws of 1876), which it is claimed repealed the act of 1875.

      A. SchoonmaJcer (Attorney General) and Isaac D. Garfield, for the appellant..

      J2. P. More and P. Countryman, for the respondent.
   Learned, P. J.:

While 1 agree with much of the opinion of my brother Board-man, there is one important respect as to which I must disagree, and that is on the question of ratification by the act of 1875. The very ground of any ratification (by the Legislature or by any other party) must be Icnowledge.

the action in the auditor’s office does not sbow knowledge in the Legislature. And especially it is not proved that the Legislature had knowledge of the illegality of these contracts. (People ex rel. Wasson v. Schuyler, 69 N. Y., 242.) If the language of the act expressly included the certificates the case would be quite different. But it does not. And therefore, when the act is claimed to be a ratification only, it should appear plainly that the Legislature, with knowledge of the circumstances respecting these certificates, must have intended by this appropriation in general language to ratify them. I do not think that such knowledge is shown, and I am of the opinion, therefore, that the judgment on the referee’s report should be reversed, with costs.

TappaN, J., concurred.

Boardman, J.,

dissenting.

It may be assumed that the original contract made for the building of this dam in December, 1872, was not valid or binding upon the State. the fourteenth finding of fact by the learned referee, however, gives some color to the claim that such contract was recognized and ratified so far as possible by the canal board in February, 1873, while the work was in progress. the conclusion reached makes it unnecessary to discuss that question.

By the act of 1875, chapter 263, appropriations were made to pay awards of the canal board, the board of canal commissioners, and certificates for work done on the Erie canal as well as interest upon such sums., the evidence shows that the certificates in controversy were included in the estimates for which such appropriations were made. the facts were known to the canal board and the canal commissioners. the necessity for the work for State purposes bad been recognized by the canal board in 1873, and in 1872 by the report to the Legislature of the canal commissioner in charge. Again, in 1874 the amount of these certificates was reported to the Legislature of 1875 as items of public expenditure. the law of 1875 was thereupon drawn up for the auditor for the very purpose, among others, of paying these certificates. In the face of these facts, it cannot be contended there was not a legislative ratification of these expenditures and a recognition of the State’s obligation, to pay them. (Smith v. People, 47 N. Y., 330; People v. Lord; People v. Stephens; People v. Leahy, MSS. opinions, Ct. of App.) Nor is it open to clonbt that the Legislature have the power so to ratify, recognize and pay for work of which the State has had the use and benefit. (People v. Lord, Ct. of App., Jan., 1878; 17 Alb. L. J., 273; People v. Stephens, 51 How., 235; People ex rel Williams v. Dayton, 55 N. Y., 367; Brown v. Mayor of N. Y., 63 id., 239; Nelson v. Mayor, etc. of N. Y. id., 535.)

Was the act of 1875 repealed by the act of 1876, chapter 425 ? It is certainly not repealed in terms, and repeals by implication are not favored. If the two statutes can both stand without being-inconsistent or in conflict, courts will sustain both. (People ex rel. Kingsland v. Palmer, 52 N. Y., 83.) The object of the act of 1876 was ‘ ‘ to provide for the completion or cancellation of all pending contracts for new work upon, and extraordinary repairs of, the canals ” and making appropriations therefor. The contract before us was not a “pending contract,” and therefore did not come within the purpose of the law. The act of 1875 was not passed to pay for new work or extraordinary repairs, but to pay for work already done and completed. Any other construction would involve extraordinary and improbable consequences. There is nothing in the provisions of the act of 1876 in conflict with the view here taken. If it be conceded that the work done was necessary for the profitable use of the Erie canal, and that the right to withhold payment aiises from irregularities in the manner of making the contract and causing the work to be done, then an equitable, .if not legal, obligation was imposed upon the State to pay for such work, of which, since 1874, it has had the use and benefit. This constitutes a sufficient consideration, not only to justify, but to require a recognition and payment of the debt.

Nothing is seen in the exceptions taken upon the trial which ought in our judgment to change the result or furnish a reason for granting a new trial. There is no evidence that the work was not well doné. It appears that the State officers have acted in good faith, and with reference to the best interests of the State as they believed. The price to be paid for the work is reasonable and the work was necessary. There is no pretence of any fraud or corruption. The State has since used and enjoyed the benefits of the work.

For the reasons assigned, and for others more clearly and fully stated in the opinion of the learned referee, I dissent from the opinion of my brethren, and think this judgment should be affirmed, with costs.

Judgment reversed, with costs, against the relator.


source: Caselaw Access Project

author: Learned, P. J. :

license: Public Domain

text:
    OLIVER P. RANNEY, Respondent, v. SQUIRE A. WARREN, Appellant.

      False representations on the sale of a farm — action for damages — not maintainable while the purchase-money remains unpaid and secured by a mortgage thereon.

    The plaintiff was induced by the false representations of the defendant to purchase a farm for $18,000, for which he paid as follows: In cash $5,000; by assuming a mortgage $2,000; by giving hack his own bond and mortgage $11,000; $1,000 had been paid by him on his bond and mortgage. The farm was actually worth $13,000; it would have been worth, if it had been as represented, $19,000.

      Seld, that as plaintiff could successfully defend to the extent of $6,000 (the damages sustained), an action brought to foreclose his moi’tgage, he was not entitled to recover that amount in an action at law brought to recover damages for the fraudulent representations of the defendant.
    That while he continued to owe more than $6,000 of the purchase-price he had not as yet sustained any damage.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made on the minutes of the justice before whom the action was tried.
    The complaint alleged that the plaintiff about April, 1874, purchased a farm from the defendant for $18,000, paid and secured as follows : $5,000 in cash ; $2,000 by assuming a mortgage already on the farm; $11,000 by plaintiff’s bond, secured by mortgage thereon, payable in annual installments of $1,000 each ; and that he has paid the first installment, payable December 1, 1874, of $1,000. It alleged false and fraudulent representations made by defendant to induce plaintiff to purchase, and alleged damages to the amount of $10,000. It asked judgment that the bond and mortgage be declared void, and be canceled and given up to plaintiff; that an injunction issue to restrain the transfer of the bond and mortgage, and that plaintiff recover $10,000 damages and costs. It does not aver any other damage, except that the farm was worth only $12,000, and would have been worth $20,000 if it had been as represented. The answer does' not deny the purchase, or its terms, but specifically denies the alleged fraud. The action was commenced in March, 1876. The case states that when the cause came on for trial the court inquired of the plaintiff’s counsel if he claimed to recover damages, as in an action at law, or equitable relief; to which he replied that he claimed to recover damages as in an action at law ; that both kinds of relief were prayed for in the complaint; that he regarded the action as an action at law, and for legal relief, and insisted upon trying it as such. The defendant’s counsel said that he was fully prepared to try the cause either way, and had no objections to trying it in the way suggested by plaintiff’s counsel.
    A jury was impanueled and evidence given. At the close of the case five questions were, with consent of the court and agreement of parties, submitted to the jury. Briefly ¡they were : First. Did the defendant make the representations, etc. ? Second.- Did plaintiff rely on them, etc. ? Third. Were they untrue, etc. ? Fourth. What was the actual value of the farm, as it was when it was purchased ? Fifth. What would it have been worth, at that time, if it had been as represented ? The jury answered the first three in the affirmative ; the fourth, $13,000 ; the fifth, $19,000.
    Thereupon, by consent of parties, on application by the plaintiff’s attorney, the court settled the verdict. This settlement states the facts above set forth as found, and concludes: “ Upon these facts the jury leave the judgment to the court.” Thereupon the court ordered judgment for the plaintiff for $6,000. There was no general verdict.

      Tanner <& Potter, for the appellant.

      P. O. Betts, for the respondent.
   Learned, P. J. :

Under the old practice this would have been an action in equity; the demand for damages being incidental. (Story Eq., § 794, et seq.) Under the present practice this action does not come under section 968, New Code. It was therefore triable by the court. (Section 969.) Because the complaint demanded, and alleged grounds for, a surrender and cancellation of the bonds. For this reason, when the cause was before this court the first time, we held that the complaint had been improperly dismissed. Though there might be no actual damages, yet the plaintiff, on proper proof, might have had a judgment for the cancellation of the bond. (20 S. C. N. Y., 11.)

On the present trial it appears that the plaintiff claimed to recover damages as in an action at law. So it is not altogether plain whether this is to be considered an action for damages, with a special verdict under section 1187,' New Code ; or an action for specific relief, with a submission of certain questions, to a jury, under section 791. The statement of the plaintiff’s counsel; the language of the verdict, leaving the judgment to the court, and the judgment rendered thereon for a recovery in money, all indicate that the plaintiff treated this as an action at law. in which he has had a special verdict.

In that view we must take the facts admitted by the pleadings and those found by the verdict,' and see whether they authorized the judgment. We cannot look beyond these facts. According to these the plaintiff still owes $10,000 on his purchase. The fraud practiced on him made his purchase worth $6,000 less to him than he was induced to believe it was worth. With that deduction he still owes $4,000. We are unable to see how these facts sustain a recovery for damages. The plaintiff’s counsel properly says that fraud, accompanied with damage, gives a right of action. But fraud which has not caused damage does not. The facts found by the jury show that the plaintiff can successfully defend any action upon his bond of $10,000, to the extent at least of $6,000. The obligation which he has given is not negotiable. The holder of the obligation could recover on it only $4,000 on the facts found by the jury. The plaintiff has a farm worth $13,000, subject to a prior mortgage of $2,000, which makes its value to him $11,000. For this he has paid only $6,000. What damage has he suffered ?

Possibly a case might be supposed where a purchaser would suffer damages by the purchase, owing to peculiar circumstances, even before he had paid any of the purchase-money. But such is not this case. The alleged damage here consists only in agreeing to pay more than the farm was worth. If we could go beyond the special verdict we should find, evidence in the case that, since the commencement of the action, the defendant by foreclosure and sale, has collected on the plaintiff’s bond the sum of $5,000. But even if this fact had been found by the jury, still we could not see that the plaintiff had been damnified to the extent of $6,000. For he would still be indebted to the defendant on the bond $5,000, and therefore the utmost damage which he would have suffered would be $1,000. It must be kept in mind that this action is not brought to set aside the whole transaction on the ground of fraud, and thus to restore both parties to their original position. But the plaintiff, while retaining whatever he acquired by the bargain, seeks to be compensated for the actual damage which he has suffered. Nor is this view of the matter changed by the neglect of the plaintiff to make payments on the bond, and by the consequent foreclosure of the premises and the sale of them to the defendant. The fact that the plaintiff, as it would seem, may have thus lost by the foreclosure what he had already paid on the premises has nothing to do with the question of damages by the fraud. Although we may suspect that it seemed to the jury to furnish a ground for, and a measure of, the damages which they awarded.

Treating this case then as an action at law for damages (as tne plaintiff’s counsel insisted on treating it at the trial), and looking at the facts admitted by the pleadings and those found by the special verdict, we think the judgment was not warranted. If we might treat this as an equitable action, we might perhaps modify the judgment by adjudging the bond and mortgage to be canceled -to the extent of $6,000. But we do not think that wo can, on the present appeal, thus disregard the position taken by the plaintiff’s counsel on the trial.

This view renders it unnecessary to examine the questions of evidence. The judgment must be reversed, a new trial granted, ■costs to abide the event.

Present — Learned, P. J., Boardman and Bocees, JJ.

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


author: Boardman, J.:

text:
    EDWARD HAWLEY, Respondent. v. THE NORTHERN CENTRAL RAILWAY COMPANY, Appellant.

      Gontrihutoi-y negligence — when it is a question for the ¡wry.

    The plaintiff, an engineer on defendant’s road, was accustomed to run a freight train at about twelve miles an hour. The road was in a wretchedly bad condition from defendant’s neglect to repair it, which fact was known, in a general way, to plaintiff. Promises had been made that the track should be put in repair. The plaintiff was ordered to run his engine, without any train, to a station, at a much higher rate of speed than was customary. He objected on the ground that the condition of the road made it unsafe to do so, but finally consented. The engine was thrown from the track and the plaintiff was injured. Plaintiff did not know of the particular defect by which his engine was thrown from the track and his injury occasioned.

      Seld, that the question whether or not plaintiff was guilty of contributory negligence in running upon the track, with knowledge of its defective condition, was one for the jury, and that a motion for a nonsuit was properly denied.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    Tbe action was brought by the plaintiff, who was formerly an ■employee of the defendant, as locomotive engineer, to recover damages for injuries sustained by him while running as such engineer, from his engine being thrown off the track by reason of the defective condition thereof. The evidence tends to show that •at the time of the accident in July, 1872, the defendant’s road was much out of repair and in bad condition, of which plaintiff had knowledge. At the time of the accident the engineer was, in pursuance of orders, running a locomotive, without cars attached, from Canandaigua southward, and ran ahead of a passenger train. He was a freight engineer, and had run to Canandaigua with a loaded train.
    Other facts appear in the opinion,

      O. M. Diven, for the appellant.

      J. JE. Dewey, for the respondent.
   Boardman, J.:

This is an appeal from a judgment in favor of the plaintiff on the verdict of a jury. Plaintiff, an engineer of the defendant, while-running an engine, was thrown from the track by reason of its bad condition and injured. This action was brought and recovery had for his damages. The evidence shows beyond doubt he knew of the unsafe condition of the track, and still continued in his employment and ran his engine. But there is no proof of his knowledge of the particular defect that threw his engine from the track, and was the direct cause of his injury. The counsel for the defendant-claims that plaintiff cannot recover because, knowing the unsafe condition of the track, he voluntarily ran the risks incident to his-duties, and continued in the employment; hence his own negligence contributed to, if it was not, the direct cause of his misfortune.

At the close of the evidence a motion for a nonsuit was denied. The court then asked counsel if there was any disputed question of fact to be submitted to the jury, except damages in case the court should hold that the plaintiff was entitled to recover. The plaintiff’s counsel replied “ no, sir.” The defendant’s counsel replied as follows : “My answer is, reserving all the rights which I have acquired under my motion for a nonsuit, and my exception to the denial of the motion, no, sir.” The court thereupon directed counsel to go to the jury on the question of damages, only holding that under the evidence the plaintiff is entitled to recover. To this last holding and decision defendant excepted. The verdict was $1,000. Afterwards the parties “ stipulated that the only question which shall be made in the Supreme Court or Court of Appeals, upon the appeal from the judgment in this action, shall be upon defendant’s motion for a nonsuit, and whether the plaintiff was entitled to recover at all, or go to the jury upon the question of his right to recover.”

The sole question then is whether the defendant’s motion for a nonsuit should have been granted. That motion was made upon the following grounds :

First. That the defendant was guilty of no negligence.

Second. That the proper officers of the company had not been notified of the defects so as to make defendant liable.

Third. That plaintiff cannot recover because he had full knowledge of the defects of the track, and having such knowledge, and the opportunity to judge, continued to run.

Foui’th. That the injuries sustained wore due to the risks incident to his employment.

Fifth. That the injury was due to the neglect of a fellow-servant engaged in the same general employment.

On the argument, however, the counsel for the defendant, conceding that its road at the time in question was in bad condition, urges only that the plaintiff had the same knowledge or means of knowledge as the defendant, and hence by continuing to run over it assumed ¿11 the risks ; and also that knowing its actual condition and making objections to running he yet voluntarily ran, and hence assumed the risks of accident. In short, it is insisted that plaintiff was guilty of contributory negligence, as a question of law, by continuing to run his engine under the facts established by the evidence.

This position, we think, cannot be maintained. Contributory negligence is ordinarily to be passed upon by a jury. It is only when the evidence of its existence is clear and uncontradicted that it becomes a question of law. Judge Allen, in Massoth v. Del. and Hud. Can. Co. (64 N. Y., 529), says : “ It is only where it clearly appeal's from all the circumstances, or is proved by uncontroverted evidence, that the party injured has, by his own acts or neglect, contributed to the injury, that the court can take the case from the jury and nonsuit the plaintiff.” He further says, the instances where nonsuits are granted in such cases are exceptional. In the same case in the Supreme Court (6 Hun, 314, 315), Bocees, J?, very clearly and justly states, in accordanc© with the rule laid down in Bernhard v. R. and S. R. R. Co. (1 Abb. Ct. of App. Dec., 131), and Weber v. N. Y. C. (58 N. Y., 451): “ If there are inferences to be drawn from the proof which are not certain and uncontrovertable, they are for the jury.” Now, starting from this recognized principle, let us examine the facts. The road was in wretchedly bad order by reason of defendant’s neglect. That fact was known in a general way by plaintiff, but he had not that specific and accurate knowledge possessed by the employees of the company whose duty it was to care for and repair the track. (Mehan v. S. and B. and N. Y. R. R., 6 Week. Dig., 362.) Ilis ordinary duties were to run a freight train at about twelve miles an hour. On this occasion ho was required to run his engine alone at a much higher speed. He insisted it was unsafe, but consented to go. Promises had been made that the track should be put in repair before and at this time. Other employees, with the same knowledge or means of knowlege, continued in the defendant’s employ. (Twomley v. Cent. Park, etc., R. R., 61 N. Y., 161; Eppendorf v. Brooklyn, etc., R. R. Co., id., 195.) The particular defect by which the injury was caused was unknown to him. (Mehan v. Syr., etc., R. R., supra.) From these and other facts not noticed it was the duty of the jury, and not the court, to decide whether the plaintiff was justified in remaining in defendant’s employ; whether he voluntarily assumed the risk of his occupation; whether he exercised ordinary prudence and care; whether, in short, he was guilty of contributory negligence. In Laning v. N. Y. C. (49 N. Y., 521), such facts were submitted to the jury, and their verdict was sustained. Judge Folgjek, at page 534, says of such evidence: “It may constitute contributory negligence” to remain in the service. Again, at page 535, he says: “It is at his option ordinarily to accept or to remain in the service, or to leave it; and if he remains, without promise of a change or other like inducement, it is for the jury to say whether or not he voluntarily assumes the risks * * * whereof he has full and equal knowledge.” Similar evidence was submitted to the jury in Mehan v. S. B. and N. Y. R. R. Co. (suprci), and the verdict sustained. In Kelly v. Silver Spring, etc., Co. (18 Alb. Law Jr., 354 [S. C. of R. I.]), the dangerous machinery was used by the employee, aud all its dangers better known to him than to the company. He had used it for years, and the particular danger from which the injury sprung had existed to his knowledge for weeks, yet he had given no notice nor made any complaint. It was held that he must have consented to the peril of his employment. (In Gisbon v. Erie R. R. Co. (63 N. Y., 449), the injury arose from the employee being-hit by the projecting roof of a depot while passing on a train. The defect was one which had long existed, and was as well known to the employee as to the company. It was held he assumed the risk, and that defendant was not liable. But Allen, J., adds that the danger in that case was incurred without necessity and of the employee’s own motion. It was not done at the request of the defendant or its officers, or in pursuance of any special orders. Accordingly it was held that the employee was .himself guilty of contributory negligence.

We think, upon the authorities cited, the question of plaintiff’s contributory negligence was one of fact and not of law. The defendant’s counsel waived the submission of it to the jury. Of course he cannot now complain that it was not submitted. He then insisted, and now insists, it was a legal question, and being-wrong in that opinion he has raised no valid exception to the manner in which the case was disposed of at the circuit.

The judgment must, therefore, be affirmed, with costs.

Learned, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


text:
    EMMA E. CRESSEY, as Executrix, etc., of WILLIAM CRESSEY, Deceased, Respondent, v. JOHN SABRE, Appellant.

      Chattel mortgage — when the mortgagee takes no title to things, not in existence at the time of its execution.

    April 12, 1877, plaintiff’s testator executed a chattel mortgage to C. & V. upon a team of horses, “ three acres of wheat, four acres of potatoes, twenty acres of oats.” At the time of giving the mortgage, the potatoes were not in existence. In June, 1877, about two and a-half acres of potatoes were planted by plaintiff’s ' testator, who died in the following August. In September or October the plaintiff, his widow and executrix, with knowledge of the mortgage, sold the potatoes to the defendant.
    In an action by her to recover their price, held, that by the mortgage the mortgagees acquired no title to the x>otatoes, and that the fact that they claimed them from the defendant and forbid him to pay plaintiff, was no defence to the action.
    Appeal from a judgment of the Comity Court of Clinton county, affirming a judgment of a justice of the peace in favor of the plaintiff.
    The court found that William Cressey, a resident of Ellen-burgh and in possession of a farm in said town, which was the only land occupied by him at that time and up to the time of his death, executed a chattel mortgage, April 12, 1877, to John L. Carter and Freeman Yilas, whereby he granted, bargained and sold “ unto the said mortgagees, their executors, administrators and assigns, forever, the following goods and chattels, herein expressed, now remaining and being in the possession of William Cressey, to wit: One red mare and one brown mare, and being the same horses purchased of Carter and Yilas; three acres of wheat; four acres of potatoes; twenty acres of oats.” And that said mortgage was filed in the town clerk’s office of Ellen-burgh on the 28th day of April, 1877. That said Cressey became sick May 25, 1877, and was. confined to his house until August 8, 1877, when he died, leaving a last will and testament, which was proved before the surrogate of Clinton county and letters testamentary issued to his widow, the plaintiff, October 8, 1877, and she entered upon the discharge of her duties, and as such brings this action.
    That in June, 1877, the said William Cressey caused to be planted on the above mentioned farm one piece of potatoes of about two and one-half' acres, and another piece of potatoes of about one-fourth of an acre, and that no potatoes were planted on the said premises at the date of said mortgage; and from those pieces of potatoes the plaintiff caused to be dug, sold and delivered to the defendant in the months of September and October, 1877, 216 bushels of potatoes at the agreed price of twenty-five cents per bushel, and the defendant paid towards the same fifteen dollars and sixty-five cents, and refused to pay the balance of thirty-eight dollars and thirty-five cents. That prior to the commencement of this action, Carter and Yilas had given him notice that they owned the said potatoes by virtue of the said chattel mortgage, and not to pay plaintiff for said potatoes as the money due therefor belonged to them and that he must hold this money subject to their order. That in the fall of 1877, and before the potatoes were sold to the defendant, Henry Cressey, a son of testator, informed the plaintiff that there was a chattel mortgage on these potatoes, and that before the potatoes were planted, the said William Cressey told E. Plumley that Carter and Yilas had a chattel mortgage on his crop of that season.
    The court directed judgment for the plaintiff, with costs.

      Beckwith & Reilly, for the appellant.

      D. 8. McMasters, for the respondent.
   Boardman, J.:

This action was originally brought in a justice’s court. No equities of the parties can therefore be regarded or protected, since a court of a justice of the peace has no equitable jurisdiction.

Plaintiff sold defendant a quantity of potatoes. They were partially paid for. The defendant refused to pay the balance due on the contract because, as he maintains, plaintiff" had no title to the potatoes sold. If Carter and Yilas were entitled to the potatoes under their chattel mortgage the defence is sustained. So far as relates to the potatoes the mortgage was given upon property having no legal existence. It was an ordinary mortgage to secure money lent and was dated April 12, 1877. Plaintiff’s testator was the mortgagor, and Carter and Yilas were the mortgagees. The mortgage purported to cover, among other property, “four acres of potatoes.” At the date of the mortgage the mortgagor had no potatoes of any kind ; but afterwards in June, 1877, he planted about two and three-fourths acres of potatoes, and the potatoes in suit are the product of such planting. It is well settled, we think, that such an instrument, whether called a mortgage or a bill of sale, will not in law pass any title to property, like that in suit, having no actual existence. Ordinarily crops not in existence and not then growing are not the subject of mortgage. (Milliman v. Neher, 20 Barb., 37; by Bockes, J.; Otis v. Sill, 8 Barb., 102.) But trees, grass or other growing crops upon the ground, or wool upon sheep’s back may be mortgaged. That would be a mortgage of a thing in actual existence, in process of growth, though still imperfect and immature. In certain cases of leases, covenants that the lessor shall have all the grain to be grown upon the lands rented as security for unpaid rent have been held good. (Conderman v. Smith, 41 Barb., 404; Van Hoozer v. Cory, 34 Barb., 9; McCaffrey v. Woodin, 65 N. Y., 459, and cases cited.) But it is not quite correct to call such instruments mortgages-Dwight, C., says of such a contract: “ The only way to give it validity is to hold that in substance it has all the characteristics in equity of a mortgage or of an equitable lien, which for the purposes of this case is equivalent.” But all of these cases arose between the parties to the lease or contract, and hence could be supported with greater justice than if the rights of creditors or third persons had intervened. Commissioner Dwight further says, page 464: “At law, a mortgage upon property not yet acquired is, according to the authorities, only a license until a new act intervenes.” The new act which must intervene is the taking of possession by the creditor under his contract. Geay, C., with his usual clearness, makes plain the relations of the parties. He says : 11 That it did not by apt words create the relation of mortgagor and mortgagee between the parties to it; and if it did, it was inoperative upon any property which at the time of its execntion was not actually or potentially either possessed or owned by McCaffrey,” and he holds that the right to hold the property was an irrevocable agreement supported by a good consideration. Again, it is said the owner of real estate may grant and sell the future produce of such land, and that such grant will carry future crops as fast as they come into existence. (McCaffrey v. Woodin, supra, p. 464, and cases cited.) But here no such grant is alleged or proved.

But this is not a contest between the parties to the alleged mortgage, but between one of them and a third person. Carter and Yilas have acquired no right by taking possession. Their rights must be governed by the force and effect of the mortgage. As we have seen the potatoes on the four acres had no actual existence when the mortgage was executed. They had no potential existence — that is nothing was then in existence in process of growth ; there was no grant of the produce of any land. Hence we must hold that the mortgage was inoperative as to the potatoes, and that the plaintiff ought in law to recover the remainder of the purchase-price which defendant agreed to pay.

The judgment should be affirmed, with costs.

Learned, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
    JOHN CREQUE, Appellant, v. DEMETRIUS SEARS, MYRON SHERWOOD and HERMON CAMP, Respondents.

      When a party is estopped from asserting title to land— Necessity of pleading an estoppel.

    Defendant Camp being about to purchase certain land, and hearing that there was a dispute as to the boundary line between the then owner and plaintiff who owned the adjoining lot, applied to the latter, and stated that he would not purchase unless the dispute could be settled; that he would not purchase a quarrel. Plaintiff said if he purchased the lot and claimed to a certain wall, there would be no difficulty. The purchase was made and each party occupied up to the wall, and made imimovements on their respective lots.

      Held, that the plaintiff was estopped from claiming that any of the land on the defendant’s side of the wall belonged to him.
    Admissibility of evidence, under a general denial in an action of ejectment, to show that plaintiff is estopped from claiming possession of the land in question, considered.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.

      John A. Williams and J. McGuire, for the appellant.

      F. M. Finch, for the respondents.
   Learned, P. J.:

This contest arises over the title, or right of possession, to a small triangular piece of land. By the findings of the referee the legal title is in the plaintiff. But he finds that the plaintiff is estopped from asserting his legal title, by reasons of his acts and declarations to defendant Camp. The evidence is sufficient to sustain such findings. Camp contemplated the purchase of a lot of Trunbly. He knew that there was a controversy or dispute, between Trunbly and Creque about the line between their lots. He went to Creque and said he would buy, if the dispute could be settled, otherwise not; that he would not purchase a quarrel. Creque replied: “If he (Camp) bought the Trunbly lot and claimed up to the office wall there would be no difficulty between them.” Belying upon that Camp bought the Trunbly lot, and has since occupied up to that wall. He would not have made the purchase but for that. He took his deed in 1864. Creque and Camp afterwards made improvements on their respective lots, both stopping at the division line indicated by the office wall. The land in controversy is included in that which Camp has occupied since 1864.

These facts constitute an estoppel in pais. (Wendell v. Van Rensselaer, 1 John. Ch., 344; Storrs v. Barker, 6 id., 166; Tilton v. Nelson, 27 Barb., 595.)

The language of Creque conveyed to Camp the assurance that he, Creque, did not claim to own beyond the office wall. Camp so understood it, because be bought on the faith of such understanding. Creque so intended to be understood, because his subsequent acts and improvements are consistent with the fact and inconsistent with his present claim. He does not deny the evidence of Camp. It is thus conceded to be true.

It is quite possible, under the authorities cited by the respondents’ counsel, the referee might have held that- this was a practical location of a disputed boundary line between the parties, by which both parties are bound. But the referee has not put his decision upon such ground, and it is not necessary to consider it.

No objection was made, or exception taken, to the evidence of the declarations of plaintiff to Camp ; nor was any valid or effectual exception taken to the evidence of Ms father toucliing his declarations. Hence the motion to strike out such evidence was properly denied. (Levin v. Russell, 42 N. Y., 251.)

The- evidence ' having been received without objection by the plaintiff, it does not become necessary to decide whether it was admissible under the general denial. The case of Raynor v. Timerson (46 Barb., 518, 525) would indicate that such evidence was admissible under a general denial. Ejectment is an action to test the right to possession. This is therefore of the essence of the action. A denial of such right is a denial of a fact essential to plaintiff’s recovery, and hence any evidence that may show that he never had a right of recovery against the defendant is admissible under a general denial.

Such is the argument. The subject is not free from doubt. But, waiving that, we think the referee’s finding of fact are sustained by the evidence, and that the conclusion of law justly follows therefrom. There was no error in the admission of testimony or in the rulings upon the trial. Hence we conclude the judgment should be affirmed, with costs.

Present — LearNed, P. J. and Bockes, J. ; BoardmaN, J., taking no part.

Judgment affirmed, with costs.


author: LEARNED, P. J.:

text:
    WESLEY FITCH, Appellant, v. JACOB CASLER, Respondent.

      Inn-Tceeper and guest — when that relation does not exist.

    The defendant, an inn-keeper, issued invitations for a “ fourth of July party ” at his inn; he furnishing music, a supper and stabling for the horses, for two dollars. In pursuance of one of these invitations plaintiff attended, stabled his horse with the defendant; danced, and had supper, paying therefor two dollars. He also drank at the inn, liquors being charged for in addition to the two dollars. In an action brought to recover for an injury to plaintiff’s horse, held, that the relation of inn-keeper and guest did not exist.
    Appeal from a judgment of tbe Otsego County Court in favor of tbe defendant, entered upon tbe verdict of a jury. Tbe action was brought to recover for injuries sustained by plaintiff ;s horse.
    Tbe defendant kept a hotel. A short time before tbe fourth of July, 1877, tbe defendant issued cards, of which tbe following is a copy: “Fourth of July party at Casler’s Hall, Springfield Centre, N. Y., Wednesday evening, July 4, 1877, yourself and lady are respectfully invited to attend. Music by tbe Old Utica Band, Jacob Casler, proprietor. Room managers, John Hann, Samuel Hillsinger, bill two dollars.” Tbe plaintiff received one of these cards, and, thereupon, on tbe evening designated, went with a horse and buggy to tbe defendant’s hotel. On arriving there, by direction of the hostler, he put his horse in the barn of one Mr. Rozie, engaged by the defendant for the occasion. The plaintiff took part in the dance, and had supper and paid his bill. The two dollars mentioned in the bill covered the night supper, hay for the horse and the dancing bill, but not supper at any other time, or cigars, or spirits. The plaintiff drank at the hotel. The dancing hall is a part of the hotel. Supper was in the dining-room of the hotel. The ball room and sitting room were open to the persons who came to the party. The ball was gotten up for the benefit of the defendant. There was evidence that the plaintiff’s horse was injured. The court held that the relation of innkeeper and guest did not exist; and the only question on this appeal was upon that holding. The question of liability for negligence was submitted to the jury.

      Lynes & Van Horn, for tbe appellant.

      Samuel A. Bowen, for tbe respondent.
   LEARNED, P. J.:

Tbe well-known principle of tbe liability of an inn-keeper bas been maintained, in order to protect those wbo come to bis bouse, as to an inn or hotel. (Calyes Case, 8 Coke, 32.) It certainly cannot be that, if an inn-keeper invites a friend to dinner, that peculiar liabibty arises. And, so in tbe present case,.the plaintiff came on tbe invitation of tbe defendant. He came, not as to an inn or hotel, but as to a ballroom, for the purposes of engaging in a dance. He was to pay a certain charge for admission, and this charge included tbe care of bis horse. Still be was not a traveler and did not come in that character. He would have bad no right to come, if be bad not been invited.

It is true, as urged by tbe plaintiff, that even tbe purchasing of liquor bas been bold sufficient, under some circumstances, to make one tbe guest of the inn-keeper. This shows that it is not tbe amount of refreshments, but the character under which tbe purchaser buys them, which determines tbe relation of tbe parties. Tbe defendant, in this instance, was in tbe same position with any other owner of a ballroom, wbo should, for tbe purpose of profit, invite certain persons to come to it for a dance, and should charge them a certain price for tbe dance, tbe supper and for tbe care of their horses. (Carter v. Hobbs, 12 Mich., 52.)

It may sometimes be difficult to draw a fine between cases where tbe person is, or is not, in respect to tbe transaction in question, an inn-keeper. But we think tbe proper rule was adopted in this case, and that the judgment should be affirmed, with costs.

Present — LearNed, P. J. and BoardmaN, J.; Bocees, J. taking no part.

Judgment and order affirmed, with costs.


text:
    DAVID M. JONES, Appellant, v. JAMES BENEDICT and others, Survivors, etc., Respondents.

      Application of payments.

    Appeal from a judgment in favor of tbe defendants, entered upon tbe report of a referee.
    The main question involved in the case aróse out of a controversy as to tbe application of payments which should be made upon certain indebtednesses primarily owing by W. Erank Witherell, on one of which the plaintiff and other persons, including W. H. II. Withered, were liable with W. Erank Withered, either as sureties for him or as joint debtors, and on the other of which they were not. W. H. II. Withered had pledged certain securities as collateral to such latter indebtedness — from the sale of which latter securities the money for the payments in question was to be derived.
    The court at General Term, after stating the facts which were very voluminous, said :
    “We have, then, a case where several officers and stockholders of a mining company have incurred a liability for the benefit of the company, and another person, not a stockholder, is also liable thereon. This person, not a stockholder, has pledged property of his own to secure both this liability and also another liability to the same creditor. The officers of the company, thus dable, have been indemnified by their stockholders. Now they ask that the property of this person, not a stockholder, shad be so appded as to relieve them from the liability, against which they are indemnified. Thus, this person, not a stockholder, would be compelled to have bis property applied to that debt, against which the plaintiff and the other officers are indemnified, while he would receive no benefit from their indemnity, but would have to pay the other liability for which his property was pledged. We cannot see that this would be equitable. The plaintiff* says that (in round numbers) twenty thirty-fifths of the avails of property belonging to W. H. H. Witherell, and pledged by him, should apply on a debt for which (as he says) he and the other indorsers and the two Witherells are liable as quasi sureties. But the plaintiff and the other indorsers are indemnified by the real parties in interest. And upon the same equitable view, W. H. H. Witherell could insist that this indemnity be first enforced to its full amount, so that his property should be entirely relieved.
    “It would be inequitable that the plaintiff should neglect to enforce the indemity which he holds, and which, if enforced, would relieve W. H. H. Witherell, and then should insist that the property of W. H. H. Witherell should be used to relieve him, and thus to relieve the I'eal parties in interest.
    “No appeal is taken by the defendants. We see nothing in the exceptions to evidence which requires a new trial.”
    The judgment should be affirmed, with costs.

      Leslie TK Bussell, for the appellant. Matthew Hale, for the respondents.
    Present — Learxed, P. J., BoardmaN and Bocees, JJ.
   Judgment affirmed, with costs.


author: Boardman, J.

text:
    MICHAEL A. SHEHAN (Substituted for WILLIAM G. FISHER), Respondent, v. PATRICK MAHAR, JAMES W. PAGE and H. B. FREEMAN, Appellants.

      ilecekier — of property levied upon under an attachment.

    Appeal from an order appointing a receiver.
    This action was brought by William S. Fisher, September 12, 1878. The complaint alleges that the plaintiff and defendant Mahar are the owners in common of a certain trotting horse known as “Billy O’Neil,” of the value of $1,000. That the horse was purchased by plaintiff and Mahar about September, 1874 ; that the plaintiff has for upwards of a year, by the consent of Mahar, managed and controlled the horse and incurred expenses in the transportation, keeping, etc., of said horse amounting to $354; that the plaintiff, while the horse was in his possession, made an agreement with the defendant, James W. Page, of which a copy is made a part of the complaint, by which Page was entitled to possession of the horse, and to one-half his net earnings; that the defendant Mahar wrongfully took the horse from the possession of Page without plaintiff’s consent and removed him from, Albany to Montgomery county ; that Page had brought an action against plaintiff and defendant Mahar in which a warrant of attachment had issued under which, the sheriff of Montgomery county had levied on the horse, and the horse was then in the custody of the sheriff; that the sheriff' had caused the horse to be appraised at a sum far below its actual value, namely at the sum of $200 ; that the defendant Mahar resides in the State of Illinois, is entirely insolvent and without means ; that the defendant Freeman claims to be the owner of the horse under a purchase from Mahar, but such claim is fictitious and unfounded; that the defendants Freeman and Mahar are acting in collusion, and that there is danger that by said low and insufficient appraisal the defendant Mahar will be able to and will take the horse again into his own possession, and by some pretended sale, or by removing the horse beyond the jurisdiction of the court, deprive the plaintiff of his property. The relief prayed for includes an injunction, the appointment of a receiver, an accounting, a sale of the horse, and a distribution of the proceeds among the parties entitled.
    The court at General Term said: “The order appointing a receiver of this property was proper under the decision of this court in Andrews v. Betts (8 Hun, 322). That case seems to have been overlooked by the counsel for the respective parties. It is, however, an authority sustaining the present action and justifying the appointment of a receiver. The final judgment and distribution of the proceeds of the sale of the horse will be such, as shall protect the rights of all the parties to the action.”

      F. Fish, for the appellants. Matthew Hale, for the respondent.
   Opinion by

Boardman, J.

Present — Learned, P. J., Bocees and Boabdman, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


author: Learned, P. J.

text:
    JOHN B. G. BABCOCK and DANIEL M. PITCHER, Plaintiffs, v. WILLIAM LIBBEY, Defendant.

      False representaticms — as to a corporation whose term of existence has expired, though its former members still carry cm business in its former corporate name.

    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit ordered at the circuit.
    The plaintiffs, on the 6th of November, 1868, wrote a letter to A. T. Stewart, making inquiries as to the ability of “ The Utica Steam Woolen Company ” to pay ; to which letter the firm of A. T. Stewart & Co. replied the next day. The defendant is one of that firm. The plaintiffs sue for alleged fraudulent representations contained in the defendant’s letter, by which, as they claim, they were induced to sell to that company. Alexander T.- Stewart •died during the pendency of the action, and George Eox, originally made a party defendant, resided in England, and was not ■served with process.
    The court at General Term said : “ The first question arises on the following facts: The Utica Steam Woolen Company was incorporated February 27, 1846, for a period of twenty years, .and therefore ceased to be a corporation by its own limitation February 27, 1866. There was a board of trustees in existence when the corporation expired. The business was in fact carried •on by Peter Clogher, managing agent, from 1855 till the failure •of the company in 1869.
    “ Both of the parties probably believed, at the time of the correspondence in November, 1868, that the Utica Steam Woolen Company was then a corporation. The defendant insists that as. there was no such corporation in existence at that time, the plaintiff did not in fact sell'to the party recommended by the defendant ; and, indeed, that the plaintiffs did not inquire about any party, and the defendant did not reply about any party in existence. Now the difficulty with this argument is, that at the time of the correspondence there were certain persons buying and selling under the name of The Utica Steam Woolen Company. The defendant had dealings with them under that name, and the plaintiffs afterwards sold to them under that name. • The fact, afterwards brought to notice, that these persons were not, at that time, a corporation, might be quite important, if it tended to account for the subsequent failure, and thus to remove any doubt as to the fairness of the defendant’s letter. So, too, if the expression of opinion in the defendant’s letter depended at all on his belief that the company was a corporation, his mistake in that respect would be very material on the question of fraudulent intent. But still the facts remain that the plaintiffs inquired about the ability to pay of a certain business concern, and the defendants replied in respect to that very business concern, and the plaintiffs, subsequently sold to the same business concern. If A. should inquire of B. as to the standing of C. and company, and B. should reply, the identity of the persons as to whom the inquiry and reply were made would not be affected by the fact that both A. and B. were ignorant that H. was a partner in the firm; or that both were ignorant that H. had retired therefrom. This latter fact might ■ excuse B. for an incorrect statement as to the credit of the firm ; if B.’s opinion of its. solvency had rested on the fact that II. was a partner. But if B. had, under such circumstances, fraudulently and with intent to deceive, made false statements as to the ability of the firm to pay, he could not escape on the ground that the firm inquired about, had more, or fewer, partners than had been supposed. And so, in the present case, we may give the defendant all the benefit he can ask of his belief as to the existence of the corporation, as far as it may be a justification of his statements as to the credit of the company. But if fraudulently and with intent to deceive these plaintiffs he answered their inquiry as to this company, and ■made false statements as to the ability of the company, on the ■strength of which the plaintiffs sold to this same company, he cannot escape liability for such actual fraud on the ground that hoth the plaintiffs and himself thought the company was a corporation.
    “In making this supposition of the defendant's intent, we do so simply by way of argument on this first proposition. Whether “there was really any fraud is a very different question.
    “ Another point of the defendant, substantially the same in principle, is that the plaintiffs did not sell to the Utica Steam Woolen Company. True, the plaintiffs did not sell to the extinct corporation, which had borne that name. But they did sell to some persons, who used that name in buying and selling, and those persons were the persons about whom, as doing business in that name, the plaintiffs inquired and the defendant answered.”
    The court, however, upon a review of all the evidence came to the conclusion that there was not evidence to warrant a verdict for “the plaintiff, and therefore denied a new trial.

      J. JE. Dewey, for the plaintiffs. B. D. Hurlburt, Francis Fieman and Or low W. Chapman, for the defendant.
   Opinion by

Learned, P. J.

Present — Learned, P. J. and Bockes, J.; Boardman, J. taking no part.

Motion for new trial denied, and judgment ordered for the defendant on nonsuit, with costs.


author: Per Ouriavi.

text:
    THE SAVINGS BANK OF UTICA, Plaintiff, v. NELSON O. WOOD and others, Defendants.

      Surplus moneys — priority of liens as to.

    Appeal from an order made on an application for the distribu, tion of the surplus moneys in this action. February 14, 1876, Nelson O. Wood and his two sisters joined in a mortgage to the plaintiff conveying 177 acres of land which they owned as tenants in common, and a tract of fifty acres, which Nelson O. Wood owned individually and solely.
    Nelson O. Wood received all the money raised by the loan, the sisters signing for his benefit and receiving nothing. September 1, 1876, the bank of Chenango recovered a judgment against Nelson O. Wood, individually, for $6,215.61. On December 12, 1876, the two sisters mortgaged their interests in the 177 acres to John Mitchell. Upon the foreclosure of the plaintiff’s mortgage, the question was whether the judgment or the mortgage to Mitchell were entitled to priority.
    The court at Special Term awarded the priority to the mortgage.
    The court at General Term said : “As between Wood and his two sisters it is plain that, if the land had been sold in parcels, it would have been equitable to sell; first, his fifty acres ; next, his one undivided third of the 177 acres ; and lastly, their two-thirds of the 177 acres. As the land was not sold in parcels, but as a whole, it is equitable to treat the avails in the same manner — that is, the proportionate avails (agreed upon) of the fifty acres should be first applied to the mortgage; then Wood’s one-third of the proportionate avails of the 177 acres; and then so much as is necessary of the remaining two-thirds of the avails of the 177 acres. Whatever surplus of the proportionate avails of these two-thirds should remain, would therefore be the property of the sisters of Wood. As such, it would be subject to the mortgage executed by them, and would not be affected by the lien of the judgment against Wood.”
    We think the order should be affirmed, with ten dollars costs and printing disbursements.

      Albert F. Gladding, for the Bank of Chenango. JR. A. Stanton, for the respondent John Mitchell.
   Opinion.

Per Ouriavi.

Present- — Learned, P. J., BoaedmaN and Bocees, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


author: Boardman, J.,

text:
    RICHARD L. HUNTER and ANDREW HUNTER, as Executors, etc., of RICHARD HUNTER, Deceased, Respondents, v. ISAAC D. WETSELL, JOHN VAN O’LINDA and JOHN QUACKENBUSH, Appellants.

      Payment by cheek — taking a contract out of the statute of frauds.

    Appeal from a judgment in favor of tbe plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was to recover the purchase-price of a quantity of hops, alleged to have been purchased by defendants of plaintiffs’ testator.
    The court at General Term said : “Assuming as we must that the law of this case was properly laid down by the Commission of Appeals, when it was before that court (57 N. Y., 375), the plaintiffs have obviated the objections then taken by the new evidence now offered. It now appears that the contract was complete between the parties when the $200 was paid. By that contract the quantity of hops was fixed at 2,370 pounds, the price at fifty cents per pound and ten dollars in addition. The defendants were to go out and take the hops away the next week, and $200 were paid towards the purchase-price. So the jury has found ujion competent evidence and the evidence is conclusive, as to the fact upon this court. So the contract is not void by the statute of frauds.
    ‘1 The payment was by the check of defendants. It is now claimed that a payment by check, which is afterwards presented to the bank on which it is drawn and paid, is not a payment at the time of making of the contract, within the statute of frauds. No authority to sustain this proposition is citied, and we cannot yield to it our assent. Undoubtedly the giving of a check is not absolute payment, but when it is received as such, and is afterwards paid as in this case, it becomes a good and valid payment as of the time when it was given. Such is the universal custom and usage, and any different rule would greatly embarrass trade and commerce. (Gould v. Town of Oneonta, 71 N. Y., 307.)”

      J. II. Glute, for tbe appellants. F. W Paige, for tbe respondents.
   Opinion by

Boardman, J.,

Learned, P. J., and Bocees, J., concurred.

Judgment and order affirmed, with costs.


text:
    ALFRED D. McKINSTRY, Appellant, v. GEORGE C. SAHLER, Respondent.

      Section 1303 of Code of Civil Proceáme — not applicable to appeals from a justice’s court.

    Appeal from so much of an order of tbe County Court of Ulster county, as refused to dismiss an appeal in tbis action from a judgment of a justice's court, and as allowed the defendant to execute and file tbe undertaking required by section 356 of tbe Code of Civil Procedure, which be bad failed to do at tbe time of serving tbe notice of appeal.
    Tbe court at General Term said : “ The only question here is whether section 1303 of tbe new Code, corresponding to section 327 of tbe old Code, and allowing amendments, when an appeal is taken in good faith, applies to an appeal from a justice’s court to a county court. It is decided in Roberts v. Davids (19 S. C. N. Y., 394) that it does not. And that part of tbe order appealed from should be reversed, with ten dollars costs and printing disbursements.”

      Augustus II. Van Duren and J. W. Fiero, for tbe appellant. 8- F. Wood, for tbe respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Boardman and Bocees, JJ.

Tbe part of tbe order appealed from reversed, with ten dollars costs and printing disbursements, and appeal in County Court dismissed, with ten dollars costs.


author: Boardman, J.;

text:
    CHARLES DISHNO, Respondent, v. OWEN REYNOLDS, Appellant.

      Admissibility, on an issue as to a •payment having been made, of evidence tending to show that the party had money from which the payment might have been made.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover $700'and interest, alleged to have been paid in excess of the amount due to the defendant on a bond and mortgage given to him by plaintiff.
    The court at General Term said : “ The first exception to which our attention is called is the evidence of Fuller, showing that in October or November, 1871, he paid the plaintiff $2,200 in currency in packages. The bond and mortgage was given by plaintiff in February, 1872, and this evidence was offered to show that plaintiff had the money with which the payment by him to defendant might have been made. Undoubtedly such evidence.is not very cogent, but it is a fact which, in the judgment of jurors, may aid them in arriving at the probable truth. In all cases the jury have the right to know the antecedents of the parties, their position and conduct, and not unfrequently the knowledge of such circumstances, though slight in themselves, may resolve all doubt. Such evidence has been often admitted. At a late term of this court it was held in Bacon v. Frisbie, that evidence of the value of a farm might be given to affect the probabilities of making the contract claimed to exist in that case. In Burleiuv, Hubbell (1 N. Y. S. C. [1T. & C.], 285) evidence of a similar character was admitted, not because it bore directly upon the issue, but because it tended to rebut a presumption arising from other evidence in the case. Similar instances may be found in Pomeroy v. Pierce (5 Hun, 119; Bead v. Smith, 1 id., 263; Thorn v. Hilmer, 4 Abb. Ct. of App. Cases, 408.) The solvency of a party was proved in Moore v. Meacham (10 N. Y., 207, 211), in support of a claim that a purchase was made on his account. It was held no error. See, also, Harris v. Wade (61 N. Y., 630), as to insolvency of a person not a party, the object being to show that the contract was not made with him. The following cases are also cited by plaintiff’s counsel, but 1 have not the means of verifying them. (Gamier v. Renner, 51 Ind., 372; Strong v. Slicer, 35 Verm., 40; Baker v. Stone, 36 Mo., 301.) Evidence in criminal cases is admitted to show that the prisoner had the means of committing the crime. (People v. Lamed, 7 N. Y., 445; People v. Myers, 2 Hun, 6.)”

      Robert S. Hále, for the appellant. Waldo & Grover, for the respondent.
   Opinion by

Boardman, J.;

Learned, P, J., and Bocees, J., concurred.

Judgment affirmed with costs.


author: BoaudmaN, J.,

text:
    WILLIAM M. ROOSA, Respondent, v. ISAAC E. SMITH and ERNEST L. SMITH, Appellants.

      Power of General Term to review evidence — when the finding of a referee will not he disturbed.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The court at General Term, after referring to the evidence adduced by the respective parties, and showing that it was contradictory, said:
    “ The referee has seen the parties and their witnesses and heard their testimony given before him viva voce ; he has estimated their frankness, honesty, intelligence, freedom from bias, and given credit or distrust as he thought in these respects-the witnesses deserved; he has passed judgment upon their personal - appearance, temper and manners while on the stand, and he has looked at all the reasonable probabilities suggested by his personal contact, so to speak, with the parties and witnesses and during their examination. From all this and more that is imperceptible and intangible upon appeal, the referee has made up his mind where the right and the truth lies, and given judgment accordingly. We are cited to Godfrey v. '
      Moser (66 N. Y., 252) to show us this finding is not conclusive upon us. We have never supposed that a finding of a referee without evidence, or clearly against a preponderance of evidence, was binding upon the General Term. But we think it very clear that a General Term cannot in a doubtful case upon conflicting evidence, like the one under review, assume the place of the referee and determine from the mere reading of the evidence -who has told the truth, or is best entitled to credit. This would be imposing upon us a duty unsafe to exercise and dangerous in its ordinary use. It would make of a referee to try an issue simply a referee to report the testimony to this court, which in such cases would review nothing but the evidence, giving such a decision as in its judgment upon the evidence is just. We understand this court has the power to examine the evidence and the finding of facts in cases tried before a referee or the courts ; that it has the power, and it is its duty, to interfere when facts have been found without evidence or clearly against evidence ; but we do not understand it can be called on in doubtful cases upon conflicting evidence, depending upon the character and credibility of witnesses, to review and readjust the facts upon the evidence as it shall appear to it oh paper.”

      Nathaniel C. Moak, for the appellants. George IT. Carpenter, for the respondent.
   Opinion by

BoaudmaN, J.,

LeaeNed, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


author: Barnard, P. J.:

text:
    CORNELIUS C. VAN SANTEN, Respondent, v. THE STANDARD OIL COMPANY, Appellant.

      Action far money had and received— when maintainable.

    Defendant, having’ at the request of one Sohns loaded a vessel with petroleum, represented that he had put in 110 barrels more than he had in fact, and.thereby induced the master of the vessel to give a bill of lading for that amount to Sohns, who paid defendant for that amount, and sold the bill of lading to a firm in Antwerp. Upon the arrival of the vessel at Antwerp, the master was compelled to pay the consignees for the deficiency.
    In an action by the plaintiff, as assignee of the master, held, that he was entitled to recover the amount so paid from the defendant.
    Appeal from an order made at Special Term overruling a demurrer to the complaint herein, and from a judgment in favor of the plaintiff entered thereon.

      Geo. A. Blade, for the appellant.

      Alfred G. Ohapin, for the respondent.
   Barnard, P. J.:

The plaintiff is the assignee of one Schulte. Schulte was the master of a vessel known as “The Laura and Gertrude.” The defendant, at the request of Edward Sohns, loaded this vessel with. refined petroleum for him. The defendant after the loading was completed represented to Sohns and to Schulte that it had put in the vessel 110 barrels more than was in fact put in. Sohns paid for this excess to defendant, and by means of the representation of defendant, Schulte signed a bill of lading, reciting that a quantity of petroleum was loaded in the ship, which included this excess. Sohns transferred the bill of lading to Born & Sons, Antwerp, Belgium. When the vessel arrived at Antwerp, the error was discovered and the captain paid the value of the 110 barrels, and made good the bill of lading. I think this action is properly brought by the captain’s assignee. The defendant has received money to which it is not entitled. This came from Sohns,' but Sohns has received it from the consignee, who parted with his money on the faith of the bill of lading. The bill of lading as between the master and Born & Sons, who had thus parted with their property on the faith- of the bill of lading, becomes conclusive and not subject to explanation. (Dickerson v. Seelye, 12 Barb., 99; Ellis v. Willard, 9 N. Y., 529.) The master was liable upon this bill of lading. ( Watkinson v. Laughton, 8 Johns. R., 213; Elliott v. Rossell, 10 Johns. R., 1.) The case thus stands as follows :

The defendant, by a misrepresentation, obtained of plaintiff’s assignee a bill of lading that 110 barrels of petroleum had been placed by defendant upon the vessel of which he was master. , He gave a bill of lading based upon this misrepresentation. By means of it the defendant obtained money. of Sohns, and Sohns reimbursed himself by selling the false bill to Born & Sons. Born & Sons compelled the master to make good the 110 barrels. Upon what principle the defendant is to keep the money, as against the master, I am unable to perceive.

The order overruling the demurrer should be affirmed, with costs.

Gtlbekt and DykmaN, JJ., concurred.

Order overruling demurrer, and judgment in favor of plaintiff affirmed, with costs.


text:
    ALICE J. MITCHELL, as Administratrix, etc., of SARAH E. MITCHELL, Deceased, Appellant, v. HORACE B. PIKE and PETER MITCHELL, Respondents. ALICE J. MITCHELL, as Administratrix, etc., of SARAH E. MITCHELL, Deceased, Respondent, v. HORACE B. PIKE and PETER MITCHELL, Appellants.

      City Court of Yonkers — appeals from judgments of — ehaptetr 186 of 1878.
    Section 56 of chapter 186 of 1878 provides that appeals from the City Court of Yonkers may he taken as follows:
    “From judgments in actions where a recovery of less than §200 was demanded in the complaint * * * * the appeal shall be to the County Court of Westchester. From judgments in actions where a recovery of §200' or more was demanded * * * * appeals may be taken to the General Term of the Supreme Court.”

      Held, that the word “may” in the second sentence meant “must.”
    That in determining the amount claimed the interest, accrued at the time of commencing the action, upon the principal sought to be recovered must be included.
    Appeal from an order of the County Court of Westchester county, denying a motion to dismiss an appeal from an order of the City Court of Yonkers, refusing to set aside a judgment entered in ah action therein, and from an order of the said County Court affirming said order of the City Court of Yonkers.

      Jfalph ]$. Prime,, for the plaintiff, appellant and respondent.

      Wm. Homer, for the defendants, appellants and respondents.
   Barnard, P. J.:

The plaintiff recovered a judgment against the defendants for $235.49, on the 14th March, 1876, in the City Court of Yonkers. In May, 1878, the defendants moved in the City Court to set aside the judgment for the reason that the court had no jurisdiction of the action. The City Com fc denied the motion, and the defendants appealed to the County Court of Westchester county from this order. The plaintiff moved to dismiss the appeal in tbe County Court because the County Court bad no jurisdiction of the appeal, and the defendants noticed the appeal in the same court for hearing. The County Court heard the motion to dismiss and denied it, and at the same time heard the appeal, and affirmed the order of the City Court. The plaintiffs appealed from that part of the order which refused to dismiss the appeal to the County Court, and the defendants appealed from the remaining part of the order which affirmed the order of the City Court of Yonkers. The defendant has not presented or served his papers on this appeal, and the same must, therefore, be dismissed, with costs for that reason.

■ The sole question presented by the plaintiff’s appeal is whether the appeal could be legally taken to the Westchester County Court. The complaint demanded the recovery of a principal sum with interest. The principal sum was less than $200, but including interest it exceeded that sum at the time of the commencement of the action. The recovery was for the damages demanded in the complaint and was $208.84. By chapter 186, Laws of 1878, an appeal from the City Court of Yonkers, in cases “ where a recovery of less than $200 was demanded in the complaint, and from orders made in such actions,” * * * ‘ ‘ shall be to the County Court.” In cases when ‘1 a recovery of $200 or more was demanded in the complaint, and from orders made in such actions, appeals may be taken to the General Term of the Supreme Court.” Interest was part of the demand. (Josnez v. Conner, Court of Appeals [MSS., Nov., 1878]). The word “may” of necessity in the act in reference to appeals, when the recovery of over $200 was demanded, means ‘ ‘ must.” No appeal is given to the County Court at all, except when less recovery is demanded than $200. Without the other clause in relation to actions, wherein the recovery demanded was $200 or over, there would be no appeal provided for at all. In such cases an appeal may be brought to the Supreme Court; if not taken then under this clause, it can be taken nowhere else. The County Court, therefore, erred in refusing to dismiss the appeal, and the part of the order appealed from must be reversed, with costs and disbursements.

Gilbert and DykmaN, JJ., concurred.

Appeal by defendants dismissed, with costs for non-service of papers, and part of order appealed from by plaintiff reversed, with costs and disbursements.


author: Barnard, P. J. :

text:
    EDWARD C. NEIL, Respondent, v. ANDERSON THORN, DANIEL KENNARD and ANTHONY M. FERRIS, Appellants.

      Action for malicious prosecution, — probable cause, a question for the jury.

    Plaintiff, a school-teacher, procured an order from Fends, one of the trustees, upon the district collector, upon the express agreement that it should not he presented until signed hy the other trustees. Plaintiff, without procuring such other signatures, presented the order to the collector and received the money, stating that he had shown it to another trustee, and that he had said it was all right. This statement was false; Ferris made an affidavit as to the facts before a justice of the peace and procured plaintiff’s arrest for obtaining money by false pretences
    In an action by plaintiff for malicious prosecution and false imprisonment, held, that whether or not there was a reasonable cause for procuring the arrest was a question for the jury.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, .

      Qalvin Frost, for the appellants.

      Francis Larldn, for the respondent.
   Barnard, P. J. :

The complaint in this action contained two distinct causes of action-; one for false imprisonment and one for malicious prosecution. Upon the trial it appeared that the plaintiff was a schoolteacher, and that the defendants were trustees of the school district in which he taught. That the plaintiff applied to the defendant Ferris for an order on the district collector for twenty-six dollars; that Eems gave such order upon the express agreement and understanding that the same should not be presented or used, until plaintiff had procured the signatures of the other trustees thereto ; that the plaintiff, in violation of his agreement, had presented the order signed by the one trustee, and told the collector at the time that he had seen Kennard, one of the other trustees, and that he said it was all right. The collector paid the money. The plaintiff, in fact, had not seen Kennard; Kennard had not said it was all right. Ferris made affidavit of the facts and procured a warrant from William Turk, a justice of the peace, against the plaintiff for obtaining money by false pretences. The plaintiff was arrested and after an examination was discharged. There was proof tending to show that the defendant Ferris had stated the exact facts in regard to the transaction to the justice, and that he advised the procuring the warrant alluded to therein, which was done. Upon this state of facts the court erred in charging the jury that if the plaintiff had an action for malicious prosecution, he had one for false imprisonment also. There is no similarity between the actions. One lies for an illegal arrest; the other when the arrest was legal .in form and was made under due legal process from a court of competent jurisdiction, but when the complaint is made without probable cause and maliciously. One is based upon the right to immunity from arrest, except for good cause and by proper authority ; the other is based upon a malicious abuse of the forms of law to injure another. The actions differed on different principles and require different proof to sustain them. The court erred in charging the jury upon the facts proven that, as matter of law, there was no reasonable cause for procuring the arrest. That was a fact for the jury to determine. All men would not draw an inference of malice from the facts as proven against the defendants. In such cases it is a question for twelve men to determine. (Heyne v. Blair, 62 N. Y., 19; Fagnan v. Knox, 66 id., 525; Bulkeley v. Keteltas, 2 Seld., 384.)

The court charged that the presenting the order by plaintiff, in violation of his agreement to procure the signatures of the other trustees, was not a criminal act, and that, therefore, there was no probable cause for the arrest. The action does not depend upon the guilt or innocence of the accused, or upon the fact whether a crime has been committed. (Carl v. Ayers, 53 N. Y., 14.) The defendants might act upon appearances, and if they acted in good faith and without malice and upon sufficient facts, the action for malicious prosecution will not be against them, even if the accused person be innocent. I cannot concur with the court that, as matter of law, it was no criminal act to get money upon an order to which a person agrees to get other signatures before using it, and which he failed to do; but falsely told the person on. whom the order was drawn that one of the persons, who was to sign the same, verbally assented to the payment of the money upon it. It was for the jury to say whether there was a felonious intent. It is not necessary, however, to pass upon this question. The errors assigned are sufficient to call for a new trial.

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

Present — Baenaed, P. J., and Gilbeet, J.; DyemaN, J., not sitting.

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

       The case does not show an appeal from the order.—[Rep.


text:
    JOSIAH LOCKWOOD, Appellant, v. JOHN FAWCETT, JE., AND OTHEES, IMPLEADED, ETC., RESPONDENTS.

      Action for foreclosure—judgment foo' deficiency must be recovered in, in order to sustain a subsequent action to enforce payment of the deficiency out of land devised by the mortgagor.

    Dorothea Dixon, a married woman, executed a bond and mortgage to one Simpson, and thereafter died, leaving a will by which she devised certain real estate to persons therein named. After hoi’ death the mortgage was foreclosed, her executors being made parties, and a judgment for any deficiency was prayed for against them. The judgment made no provision for the payment of any deficiency; the report of the referee to sell showing a deficiency was confirmed; no judgment for the deficiency was ever entered.
    In this action, brought upon the bond to enforce payment of such deficiency out of the real estate devised as aforesaid, held, that as no judgment for deficiency had been rendered in the foreclosure action, no debt against the estate had been established and the action could not be maintained.
    Appeal from a judgment in favor of tbe defendants, entered, upon tbe trial of this action by the court without a jury. ■

      Brewster Kissam, for the appellant.

      Henry 8. Bosquin, for the respondents.
   Barnard, P. J.:

Dorothea Dixon in 1867 made her bond and mortgage to one Alexander' Simpson for $2,000. She died in October, 1871, leaving' a last will by which she devised the real estate described in the ■complaint to her husband for life, and after his death to the ■defendant Hannah Hudson, upon payment by her to the surviving ■children of Alice Blackburn, Betsey Fawcett and Sarah Dixon, $1,000 in equal portions, share and share alike. In the event of Hannah Hudson’s death, or in the event of her refusal to pay the $1,000, the devise of the fee was made to the surviving children of .Betsey Fawcett and Alice Blackburn. After the death of Dorothea Dixon, Alexander Simpson foreclosed the mortgage given to him by Mrs. Dixon. Mrs. Dixon’s executors were made parties defendants. In and by the complaint demand was made for a judgment for deficiency (if any) against the executors as such. The judgment was silent as to a possible deficiency, and authorized no judgment therefor. Upon the sale there was a deficiency of $705.61. The referee’s report specified this deficiency, and an •order was entered confirming the report in November, 1872, but no judgment was ever entered upon it.

Simpson has since died. His executrix assigned the bond to the qilaintiff, and he brings the present action to enforce the payment of this deficiency out of the real estate devised to Hannah Hudson .as above stated. I do not think the action can be maintained. There is no debt of Dorothea Dixon upon which it can be based as against her devisees. Simpson was bound to take judgment in the foreclosure action for the deficiency, or bring an action to recover it after the sale by leave of the Supreme Court. (Scofield v. Doscher, 10 Hun, 582; Equitable Life Ins. Society v. Stevens, 63 N. Y., 341.) He did neither. It is no answer to say that if a judgment had been taken it would have been of no effect in this suit. It would have established a debt. Now the presumption is that' all the relief which he was entitled to in the foreclosure action he got as against Mrs. Dixon. The judgment is binding as to all subjects which might have been litigated within the issues.

It is by no means impossible that the court in the foreclosure-action may not 'have decided that Mrs. Dixon was not personally-bound upon the bond. The law has been and is quite unsettled, as to the liabilities of married women. The appellant makes a. convincing argument on this appeal that she was bound, but an erroneous decision in the foreclosure action could not be remedied, now in a collateral action.

Upon the whole case I think the judgment should be affirmed, with costs.

Gilbert and Dticman, JJ., concurred.

Judgment affirmed, with costs.


text:
    JOHN H. LANE, Appellant, v. GEORGE W. NICKERSON, Respondent, Impleaded with MAGDALENA COLTER and others.

      Mortgages recorded at same time — priority of lien between — rights of purchasers.

    Upon the sale of certain real estate the vendor took back two mortgages from the-purchaser, one for $1,000 and one for $2,000, both of which were recorded at-the same time. The vendor told the purchaser that the $1,000 was to be deemed the first, and the other the second mortgage, and upon the same representation induced one Garrison to purchase the $1,000 mortgage, and the same was subsequently bought by the plaintiff upon the same statement.

      Held, that the $1,000 mortgage was entitled to priority over the other, as between the plaintiff, and a purchaser of the $2,000 mortgage from the vendor, after his. sale of the other to Garrison.
    Appeal from so mucli of a judgment of foreclosure and sale, entered in this action, as directs that if the proceeds of the sale be insufficient to pay the amounts due the plaintiff and the defendant George W. Nickerson on the mortgages owned by them, with interest and costs, then that they must be divided and applied ratably to both.

      ’Wheeler <& Brown, for the appellant.

      Abram A. Demarest, for the respondent.
   Barnard, P. J.:

Nelson Stephens being the owner of certain premises in Bock-land county conveyed the same to Magdalena Coulter. In part payment of the purchase-money he took back from Miss Coulter two mortgages ; one for $1,000, payable in five years, and another for $2,000, payable in ten years, both requiring the payment of yearly interest. The $1,000 mortgage contained a recital that it was for the purchase-money, and the $2,000 mortgage did not. Both were recorded at the same moment. At the time of the execution of ■the mortgages Stephens declared to Miss Coulter that the $1,000 was to be deemed the first mortgage, and the $2,000 the second. While Stephens owned both mortgages he sold the $1,000 mortgage to Daniel Garrison. He told Garrison it was a first mortgage, mid that he had purposely made it so, so that he could sell it. Garrison bought it upon such representation, and Stephens made the representation to induce Garrison to buy. As between Garrison •and Stephens the case is a clear one, in which Stephens would be estopped from setting up the $2,000 mortgage which he then held, as entitled to equal standing as to priority of lien with the $1,000 mortgage so sold. (Rice v. Dewey, 54 Barb., 455; Blair v. Wait, 69 N. Y., 113; Manufacturers’ Bank v. Hazard, 30 id., 226.) There has been nothing which has since occurred to ■change the relation of these mortgages. Stephens sold the $2,000 mortgage to Nickerson. Nickerson only took what Stephens had to sell, and that was a mortgage which was a second mortgage, although of even date and record. (Bush v. Lathrop, 22 N. Y., 535; Schafer v. Reilly, 50 id., 66; Greene v. Warnick, 64 id., 220; Crane v. Turner, 67 id., 440.) The plaintiff bought the mortgage for $1,000 of Garrison under the same representation made by Garrison to him that it was a first mortgage. Under the cases last cited he took all the right which Garrison had as against Stephens when Stephens conveyed the $1,000 mortgage. I think the judge erred in decreeing equality of lien to the two mortgages, and that he should have given priority-to the $1,000 mortgage of plaintiff.

Judgment reversed, and order modified so as to declare plaintiff’s mortgage the first lien upon mortgaged premises, with costs-of this appeal.

Gilbert, J., concurred; Dykman, J., not sitting.

Part of judgment appealed from reversed, and decree modified so as to declare plaintiff’s mortgage to be the first lien upon mortgaged premises.


text:
    HARVEY P. FISHER, Respondent, v. DAVID VERPLANCK, acting Executor of, etc., WARREN TOMPKINS, Deceased, Appellant.

      Section 829 of the Code of Civil Procedure — what evidence inadmissible under.

    In an action to recover for services rendered and materials furnished to defendant’s testator, plaintiff served a bill of particulars, made after testator’s death,, containing a statement of the contract-price of the services rendered and goods sold. Upon the trial he was allowed to testify to its accuracy in gross, and then to read it in evidence.

      Held, that the evidence was inadmissible under section 829 of the Code of Civil Procedure.

      Semite, that it was also error to allow plaintiff to testify that he worked upon premises owned by testator in his lifetime, and to give the number of days he so worked, and the value of his services.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover for work and services performed and rendered upon premises belonging to defendant’s testator. during his lifetime, and for materials furnished to, and bought for him.
    ' John W. Mills, for the appellant.

      Wilson Brown, Jr., for the respondent.
   Barnard, P. J.:

The plaintiff was permitted to testify in this case in clear violation of section 829 of the Code of Civil Procedure. The complaint averred that the plaintiff had done work and furnished materials for J. Warren Tompkins in his lifetime. The defendant was his executor. Upon the trial the plaintiff was permitted to testify that he worked upon premises which the deceased testator owned in his lifetime : also the number of days he so worked and the value. This evidence seems to have been admitted upon the principle that the fact of doing work upon premises of deceased, and the value and amount of such work was not a transaction with deceased. It is difficult to uphold this view. The action was upon a contract with deceased. When the work was proven to have been done upon his premises, and the extent and value of the work, the action is made out. The law implies the promise. Such a view of the purport of this section would not afford that degree of protection to the estate of dead men which seems to be the design of the section.

It is not necessary to place the decision of this case upon the admission of this evidence, for the referee.permitted the plaintiff to violate both the letter and spirit of the section. The plaintiff had served a bill of particulars of his claim. Ho had made this out after the death of testator; he was permitted to testify to the accuracy of this bill of particulars in gross, and then to read it in evidence. This bill of particulars contains a statement of the contract-price of work done for defendants testator, and for goods sold to him, and for goods bought for him. He thus testifies as to a direct personal transaction with deceased, and claims to recover under it, and is permitted to do so. It is not necessary to consider whether a bill of particulars so made out could be made evidence. If it could be its admission violated the Code as against a deceased person, in an action against his executor.

The proof upon which the referee found payments by which this large debt was kept alive was insufficient. The work commenced in December, 1859; and was claimed to have continued down to August, 1874, when Tompkins died. In 1870, Tompkins delivered to plaintiff two cords of wood, and in the fall of 1871 a pair of boots. The witness Carroll testifies that these payments were on account of work done. On account of what work done ? A partial payment is evidence of the whole debt upon which the payment was made. Upon what account was this payment made, Carrol does not know. There was no bill. There was nothing to indicate that this payment was paid upon a claim then for a long time barred by the statute.

The judgment should be reversed, and a new trial granted at circuit, costs to abide event.

Gilbert, J. concurred ; Dvkman, J. not sitting.

Judgment reversed, and new trial granted at circuit, costs to abide event.