text:
    Binghamton Savings Bank, Resp’t, v. May E. White et al., Def’ts. Binghamton Trust Company et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 1895.)

    Vendor and purchaser—Assumption of mortgage.
    A covenant in a deed that the grantee assumes to pay, as part of the purchase price, a mortgage given • by the grantor upon other premises, creates a lien on the premises conveyed for the amount of such mortgage.
    Appeal from a judgment settling priorities.
    The mortgage in suit was executed by May E. White, for $2,500, on March 4,1889, - upon an undivided half of the premises described in the complaint, known as the “White & Fuller Brewery Property." When May E. White executed the mortgage to the plaintiff, in March, 1889, she executed and delivered therewith her personal bond, obligating herself to pay the debt mentioned in said bond and mortgage. The mortgage was recorded on the 4th of March, 1889. On the 10th day of July, 1891, the defendant May E. White executed another bond, dated on that day, in the penalty of $5,000, to the plaintiff, and, as collateral thereto, on the same day, she executed and delivered her mortgage, whereby she conveyed to the plaintiff the same undivided half of the premises described in the mortgage of March, 1889, and the mortgage of July, 1891, was recorded on the 10th of July, 1891. May E. White was in default in observing the conditions of the bond and mortgage of March, 1889, when this action was commenced. Subsequent to the execution of the mortgage of March, 1889, May E. White, on the 4th of November, 1889, by a' deed of purchase from the defendant Fred L. White, which was recorded June 23, 1890, became the owner in fee of an undivided one-fourth of the premises described, and on the 23d day of June, 1890,- May E. White, “ by deed of conveyance duly executed, sealed, acknowledged, and delivered by her, duly conveyed to the defendant Fred L. White the same undivided one-fourth of said described premises that was conveyed to her by said Fred L. White on said November 4, 1889, which deed from said May E. White contained the following provisions: ' The second party assumes and agrees to pay as part of the purchase price of the above-described premises the bond and mortgage given by the first party hereto to the Binghamton Savings Bank, of date the 4th day of March, 1889, for the sum of $2,500, and recorded in Broome county clerk's office in Book of Mortgages No. 81, at page 485,’— which is the mortgage and bond first set forth in the complaint; that said deed was duly recorded in the office of the clerk of Broome county on June 23, 1890.” It is found as a fact “ that on or about the 10th day of February, 1891, the defendants Fred L. White and Mary S. White, his wife, duly executed, sealed, acknowledged, and delivered to the defendant the Binghamton Trust Company a mortgage on the undivided half of the premises described, the premises conveyed being the one-half part which was not conveyed by the plaintiff’s said mortgage, by which they granted, mortgaged, and conveyed to said the Binghamton Trust Company such undivided half of said premises, to secure the payment to said trust company of any and all indebtedness on notes made or indorsed by said Fred L. White, or by the firm of White & Hargi ave, which were then held or should afterwards be held by said the Binghamton Trust Company, to the amount of $17,000, which mortgage was duly recorded on said 10th day of February, 1891, in Broome county clerk’s office in Book of Mortgages 86, at page 323.” It is also found that the indebtedness secured by said mortgage was not paid prior to February 10, 1892, and that there was “ actually due upon the said notes and indebtedness secured by said mortgage on said 10th day of February, 1892, the principal sum of $14,900 ” to the trust company. It is also found that at the time of the execution of the mortgage on the 10th of February, 1891, to the Binghamton Trust Company it “ had no actual knowledge of any claim on the part of said May E. White that the mortgage given by her to the Binghamton Savings Bank was a lien upon any part of the land covered by the' mortgage given by said Fred L. White and wife to the Binghamton Trust Company, as aforesaid, or that said May E. White claimed to have any interest in or lien upon said premises; that is, upon the one-half part owned by Fred L. White.” It is found “ that a short time thereafter, and within ten days thereafter, it caused a search to be made of the records in regard to the title of the said Fred L. White to the premises covered by said mortgage, and thereupon learned of the contents of the deed from May B. White to Fred L. White, dated June 23, 1890.” It is also found “ that soon after the 11th day of April, 1891, and before the 14th day of that month, the Binghamton Trust Company was informed by the attorney for May E. White that she claimed that the mortgage given by her to the Binghamton Savings Bank, the plaintiff herein, was a lien upon the land covered by the mortgage given by said Fred L. White and wife to the Binghamton Trust Company, that is, that the mortgage given by her to the Binghamton Savings Bank had become a lien upon said premises by agreement between her and the said Fred L. White, as set forth in said deed of June 23, 1890, and for other reasons.” The mortgage to the Binghamton Trust Company was foreclosed, and the premises covered by it were sold, and the trust company purchased the undivided half owned by Fred L. White and mortgaged to the trust company. It is found that in the month of April, 1891, Fred L. White “ became insolvent,- and unable to pay his debts, and has remained insolvent- down to the time of the trial of this action.” It is also found “ that the said deed of June 23, 1890, mentioned in said foregoing thirteenth finding, expressed a consideration of $5,250, but the actual consideration agreed upon by the parties to said deed as the purchase price of the premises by said deed conveyed was the payment by the grantee therein, to the Binghamton Savings Bank, of its bond' and mortgage bearing date of March 4, 1889,. being the bond and mortgage set forth in the complaint, and mentioned in the foregoing second and third findings of fact, and also being the same bond and mortgage referred to in the covenant contained in said deed of date of June 23, 1890; that said purchase price was not paid, nor has the consideration of said conveyance of June 23, 1890, or any part thereof, been paid.” It is found “that said Fred L. White has not performed such agieement other than by entering into the covenant inserted in said deed of date of June 23, 1890, mentioned in the foregoing thirteenth finding.
    As matter of law the court found: “First. That by the covenant contained in and recorded with the deed from said May E. White to said Fred L. White of the date of June 23,1890, said Fred L. White, the grantee therein named, became liable for the payment of the amount of plaintiff’s first bond and mortgage set forth in the foregoing second and third findings of fact to the holder thereof, and the undivided one fourth part of the property conveyed by said deed of June 23, 1890, became chargeable in equity with the payment of such bond and mortgage, and the amount of such bond and mortgage, became an equitable lien on said fourth part while held by the grantee under said deed. Second. That the recitals and provisions contained in said deed of June 23, 1890, were notice to the defendant the Binghamton Trust Company that such portion of the purchase price of said fourth part so conveyed remained unpaid as was sufficient to pay and satisfy the amount of said first bond and mortgage of the plaintiff; that they were also notice to the said Binghamton Trust Company of the covenant of said Fred L.White ■contained in such deed to pay and satisfy said bond and mortgage, and also that said one-fourth interest in the property conveyed by said deed is primarily chargeable in equity with the plaintiff’s said first bond and mortgage.” Also: “That said undivided one-fourth interest * * * is primarily chargeable in equity with the payment of the amount of plaintiff’s first bond and mortgage, executed by said May E. White on said 4th day of March 1889, and said one-fourth part is the primary security out of which the amount of said bond and mortgage should be paid, and the said May E. White is entitled to have said undivided one-fourth interest in the premises that were conveyed by her to said Fred L. White by said deed of °June 23, 1890, sold under a decree of the court, and the proceeds derived from such sale applied to the payment of the amount of said first bond and mortgage of the plaintiff of date of March 4, 1889, before the plaintiff sell the one-half interest in the property mortgaged by said May E. White to plaintiff on March 4, 1889.”

      W. J. Welsh, for app’lt, Binghamton Trust Co.; D. S. & R. B. Richards, for resp’t May E. White; G. L. Sessions for resp’t Binghamton Sav. Bank.
   Hardin, P. J.

Manifestly the purchase price of the undivided quarter conveyed by May E. White to Fred L. White has never been paid by him to her, or to her appointee for her benefit.. When the conveyance was made by her, her deed contained the covenant on the part of her grantee, Fred L. White, that the purchase price to the extent of $2,500 should be paid to her creditor, the plaintiff, who held her personal covenant as well as her mortgage to secure the sum upon her undivided half of the premises mentioned in the mortgage. As soon as Fred White accepted the •conveyance from his sister, May E. White, with the conditions and covenants as to payments of the purchase price mentioned in the deed, the plaintiff became entitled to receive the purchase money mentioned in said deed, and to maintain an action against Fred L. White for the payment- of the purchase price, inasmuch as May E. White was personally liable to the plaintiff for the debt secured by her to the plaintiff. Carrier v. United Paper Co., 73 Hun, 287; 57 St. Rep. 748; Vrooman v. Turner, 69 N. Y. 282; Lawrence v. Fox, 20 id. 268; Pardee v. Treet, 82 id. 389. It was said in Burr v. Beers 24 id. 179, and in Garnsey v. Rogers, 47 id. 242, that the liability of the grantee to the mortgagee rested upon the equitable right of subrogation; and, in referring to that doctrine, Finch, J., says, in Gifford v. Corrigan, 117 id. 264; 27 St. Rep. 233, viz.:

“It was held that, where the mortgagor acquired a new security for his indemnity against the debt which he owed to the mortgagee, the latter might, in equity, be subrogated to the right of his debtor; and, under the statute permitting any person liable for the mortgage debt to be made defendant, and charged with the •deficiency in the foreclosure, the new covenant became available ■to the mortgagee.”

And the same judge, later on, in the same case, seems to approve of the suggestion of Andrews, J., given in the following language :

“After all, does not the direct right of action rest upon the equity of the transaction ? ”

The doctrine stated in Gifford v. Corrigan, supra, was approved and restated in Townsend v. Rackham, 143 N. Y. 522; 62 St. Rep. 851. See Gifford v. Corrigan, 105 N. Y. 223; 7 St. Rep. 7, near the close of the opinion. In N. Y. Life Insurance Co. v. Aitken, 125 N. Y. 660; 36 St. Rep. 8, it was said that a covenant in a deed, whereby the grantee assumes and agrees to pay a mortgage after it has come to the knowledge of the owner of the mortgage, and has been adopted by him as security for his own benefit, “may not be released by the grantor without the assent of the mortgage creditor, and such a release is no defense to an action brought by the latter upon the covenant.” And in Post v. West S. Railroad Co., 123 N. Y. 580; 34 St. Rep. 484, it was held that:

“An undertaking in a deed 'on the part of the grantee to perform certain acts becomes, on delivery of the deed to an acceptance by him, effectual as a contract on his part to perform the undertaking; and, upon refusal on his part to perform, an action for specific performance or for damage is maintainable.”

The performance of the covenant by Fred, the grantee in the deed, by payment to the plaintiff, would have been for the benefit of the grantor, as she had a legal interest that the covenant be performed in favor of the plaintiff. Durnherr v. Rau, 135 N. Y. 219; 48 St. Rep. 394. In the case in hand the covenant was entered into for the benefit of the grantor and such benefit would inure to her by-the performance, and it was, therefore, within the-contemplation of the parties that a benefit would accrue to her by the performance of the covenant on the part of the grantee in the deed. In King v. Whitely, 10 Paige, 468, it was said that the principle of the cases “is that, in equity, the creditor is entitled to-the benefit of all collateral obligations for the payment of the-debt which a person standing in the situation of a surety for others has received for his indemnity, and to relieve him or his property from liability for such payment. ” See Curtis v. Tyler, 9 Paige, 435; Halsey v. Reed, id. 451. The lien for unpaid purchase money which accrued in favor of May E. White at the time of the conveyance was not waived, satisfied, or canceled by the covenant inserted in the deed which she made to her grantee, Fred L. White. 2 Washb. Real Prop. (3d ed.) p. 90, § 16 (*507); Maroney v. Boyle, 141 N. Y. 462; 57 St. Rep. 604. May E. White did not expressly and consciously waive her lien for unpaid purchase money ; on the contrary, she inserted a clause in the deed which she gave, requiring it to be satisfied by paying the same upon an indebtedness for which she was personally liable to the plaintiff. The effect of the stipulation in her deed to Fred was to render him personally liable, as well as the land which he received from her, to pay the purchase price therefor by applying it upon an indebtedness of hers to the-savings bank, the plaintiff. The recitals in her deed to Fred, and the statement that the purchase price was unpaid, were, in effect, notice to his subsequent grantees or incumbrancers of the fact that the purchase money was to be paid to the plaintiff, and that at the time she received the deed she had not paid therefor. Being notice of such facts to his subsequent grantees or incumbrancers, they are presumed to have been put upon inquiry, and, upon inquiry, to have ascertained the actual situation in respect to the-nonpayment of the purchase price. Williamson v. Brown, 15 N. Y. 354; Pitney v, Leonard, 1 Paige, 461; Insurance Co. v. Halsey, 8 N. Y. 272; Brush v. Ware, 15 Pet. 93; Jumel v. Jumel, 7 Paige, 591; Acer v. Westcott, 46 N. Y. 384.

Question of constructive notice was involved in McPherson v. Rollins, 107 N. Y. 322; 12 St. Rep. 408, and in the course of the opinion upon that question, it was said :

“As intending purchasers, they must be presumed to investígate the title, and to examine every deed or instrument forming a part of it, especially if recorded. They must, therefore, be deemed to have known every fact so disclosed; Acer v. Westcott, 46 N. Y. 384, and every other fact which an inquiry suggested by those records would have led up to.”

In Cordova v. Hood, 17 Wall. 1, it was held that, where a deed of land shows on its face that the consideration is yet “to be paid,” a second purchaser, who has notice of the deed, takes the land subject to the vendor’s lien, “unless snch a lien has been in some way waived. In the case of such a deed it is the duty of the new purchaser to inquire; and, where inquiry is the duty, the party, bound to make inquiry is affected with all the knowledge which he would have got had he inquired.” Russell v. Pistor, 7 N. Y. 171. Undoubtedly it is true that, if the trust company was a lienor or grantee without notice of the unpaid purchase money, and for a valuable consideration, it might maintain its right to the land as against May E. White, or her appointee. Maroney v. Boyle, supra. It was said in Garson v. Green, 1 Johns. Ch. 308, that a vendor has a lien upon the estate sold for the purchase money while the-estate is in the hands of the vendee, and that, prima facie, the purchase money is a lien, and it lies on the vendee to show the contrary. Camp v. Gifford, 67 Barb. 434. In Bradley v. Boseley, 1 Barb. Ch. 125, it was said that a person having an equitable lien upon land for the unpaid purchase money may apply to a court of equity in the first instance to enforce the lien without resorting to a suit at law to recover the amount. In Benedict v. Benedict, 85 N. Y. 625, it appeared that the plaintiff had sold lands to the defendant, for which he had not been paid, and that the purchase price remained due, and it was said, “Nothing more was needed to show that he had an equitable lien for such purchase price.” In Dubois v. Hull, 43 Barb. 26, it was held that a vendor’s lien upon the land sold, for the purchase money, can only be waived by taking collateral security, or by an express agreement to that effect; and it was said that the party disputing the lien must show that the vendor agreed to rest on other security, and to discharge the lien. , The law presumes an intention on the part of the vendor to retain his lien for the purchase money, and imposes upon the purchaser the burden of proving the contrary. And in section 1231 of Story’s Equity Jurisprudence, it is said:

“So liens may be created on the purchase money due on the sale of an estate, in favor of a vendee, if it is agreed that the money shall be deposited in the hands of a third person, to be applied in discharge of prior incumbrances, to the extent of such incumbrances ; * * * for it is a general principle in equity that, as against the party himself, and any claiming under him voluntarily, or with notice, such an agreement raises a trust”

In Seymour v. McKinstry, 106 N. Y. 230; 8 St. Rep. 580, it was held that:

“The lien of a vendor of real estate for upaid purchase money is good against the vendee and the whole world, unless waived or defeated by an alienation of the property by the vendee to the purchaser without notice."

It seems to follow from the foregoing views that the appointee of May E. White, the plaintiff, was properly required to exhaust the lien acquired by it upon the undivided fourth, and apply the proceeds of the sale thereof in liquidation of the mortgage held by it against the undivided half of the premises; and that such direction as was given at the special term and as has been carried in the judgment is in accordance with the principles of equity and justice. Thus the purchase price, which never has been paid, is to be asserted against the fourth before the rights of the trust company therein are asserted. May E. White’s equities, transferred to the plaintiff, her creditor, were prior in point of time. A contrary rulé would enable Fred White’s grantee to obtain the land without payment, and would work an injustice (if not a fraud) upon the rights of May E. White.

2. It is suggested by the learned counsel for the trust company that the relief accrued- to May E.White could not be given in this action, and our attention is called to sections 521 and 1204 of Code. In section 521 it is provided that a controversy between defendants shall not delay a judgment to which the plaintiff is entitled, unless the court otherwise directs. Inasmuch as no case containing the record of the proceedings at the trial is presented before us, we are not advised that any such question was raised upon the trial. If it was raised, it may be assumed the court-directed the determination of the controversy between the defendants in accordance with the provisions of the section, and that-proper relief was demanded in the answers, and that they were properly served on the several defendants. Ostrander v. Hart, 130 N. Y. 406 ; 42 St. Rep. 513. In section 1204 it is provided that judgment may be given for or against one or more-defendants, and that it may determine the ultimate rights of the parties on the same side as between themselves, and may grant to-a defendant any affirmative relief to which he is entitled. In Smith v. Hilton, 50 Hun, 237; 19 St. Rep. 340, a motion was made to strike out certain allegations in the answer, and it was granted upon the idea that the allegations were such as to present, a new cause of action; and in delivering the opinion in that case, and commenting upon the sections of the Code, it was said:

“They were intended to follow and preserve the powers exercised by courts of equity in actions brought for their determination as that was permitted and'sanctioned by the law and practice previously existing. And by that practice, as well as by the language of these sections, the rights of the defendants to be determined between themselves must necessarily be those arising out of, or connected with, or resulting from the cause of action set forth and maintained by and in favor of the plaintiff.”

We see nothing in the case inconsistent with the course adopted on the trial of the action now before us. That case seems to be in harmony with Kay v. Whittaker, 44 N. Y. 565, where it was said that:

“Relief which defendants may have as against each other must be based upon the facts involved in the litigation of the plaintiff’s claim, and as a part of the adjustment of that claim, and not upon claims with which the plaintiff has nothing to do, and which are properly the subject of an independent litigation between such defendants.

See Derham v. Lee, 87 N. Y. 599.

We are not persuaded that the appellant suffered any injury by having all the questions relating to the plaintiff’s mortgage, and the several rights and interests it has in the property that secures the same, determined in this action, inasmuch as Fred White and May E. White are parties to the suit, and were actors in the trial, and were heard in connection with the proofs given in regard to-the appellant’s rights. We think the decision pronounced at the special term is in accordance with the rules of equity. Judgment affirmed, with costs.

Merwin, J., concurs. Martin, J., not voting.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    John D. Babcock et al., Resp’ts, v. William J. Kuntzsch, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Contracts—Consideration.
    An agreement to extend the time for the payment of a debt, in order to be valid, must be founded on a sufficient consideration.
    Appeal from a judgment, entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.
    Plaintiffs entered into a contract with the defendant for the sale of billiard and pool tables and their appurtenances to the defendant. An action to recover a balance upon the contract was brought, in a municipal court, and a judgment was rendered in favor of the plaintiffs for $41.36 damages, besides costs. Plaintiffs appealed for a new trial in the county court of Onondaga county. At the close of the evidence, the court directed a verdict in favor of the plaintiffs for $472.84. In September, 1892, the plaintiffs entered into a contract with defendant for the sale of the property mentioned, at the agreed price of $1,200. Defendant, at the time of the delivery, which occurred in October of that year, paid $125, and agreed to pay the further sum of $50 per month until the full sum should be paid. Plaintiffs also held a demand of $8.73 against the defendant. Defendant’s answer consisted of general denial, allegation of payment, “breach of contract, breach of warranty, special contract executed September 17, 1892.” Upon the trial, defendant asked to go to the jury “upon the question as to whether plaintiffs and defendant, by paroi agreement, extended the contract—the payment of the money therein mentioned—until after the commencement of this action also, as to whether all the payments specified in the contract “were not extended until a week after the 2d day of January after the commencement of this action also, “whether the time to make the payments under the contract has not been extended.” The requests were denied, and an exception taken, and a verdict directed for the plaintiffs for the amount shown to be due the plaintiffs by the evidence.

      Costello & Welch, for app’lt; Gill & Stilwell, for resp’ts.
   Hardin, P. J.

No valid extension of the time of payment was shown by the evidence to have taken place prior to the commencement of the action.

In Miller v. Holbrook, 1 Wend. 318, it was held that a promise to extend was not valid unless founded upon a good and sufficient consideration ; also, “the promise of a maker to pay part of a note when due, and payment in pursuance thereof is not sufficient consideration.”

In Gibson v. Renne, 19 Wend. 388, the question, of the sufficiency of a consideration to support a promise was raised, and, in dealing, with it, Bronson, J., said:

“The debt was due. The debtor says to the creditor, ‘You promised, in consideration that I would discharge in part an existing and present duty, that you would give further time for the satisfaction of the residue.’ I cannot understand how this makes a good consideration for the promise. The discharge of a legal obligation by the debtor to the creditor cannot be such an injury to the one, or benefit to the other, as will make whaü the law calls a ‘sufficient consideration for an agreement.”

In Parmelee v. Thompson, 45 N. Y. 58, it was held, viz.:

“A promise to extend the time of payment of a debt is void unless founded upon a good consideration ; and a payment of a part of a debt or the interest already accrued, or an agreement to pay interest for the future, is not a sufficient consideration for such a 'promise; nor will the giving of a new obligation, with additional security, for part of the debt, be a good consideration for a promise to extend the time as to the residue. The discharge of a legal obligation by a debtor to his creditor is not sufficient consideration for the promise of the latter.”

In Manchester v. Van Brunt, 46 St. Rep. 566, it was said:

“ The promise to extend the time of payment of the note was void unless founded upon a good consideration, and the payment of $100, part of the amount due on the note, was not a good consideration for such promise.”

In Graham v. Negus, 55 Hun, 443 ; 29 St. Rep. 114, it was said:

“ If the promises to pay in the future had been verbal only, as there was no consideration to sustain them, the plaintiffs after accepting them, would have been at liberty at once to disregard the promises, and commence an action for the recovery of their debt.”

In 2 Rand. Com. Paper, p. 650, § 964, it is said:

“An agreement for an extension, to have such effect, must have a new and valid consideration, and without such consideration it will not discharge the surety.”

. In Pabodie v. King, 12 Johns. 426, a partial payment was made upon the plaintiff’s debt, and it was claimed there was an agreement in consideration thereof to “forbear to sue.” The court said:

“ The promise to forbear was a nudum pactum. In paying the fifty dollars, King did no more than he was legally bound to do; and the promise, on the part of Pabodie, was without any benefit to him, and occasioned no loss to King.”

We think the evidence in the case in hand fails to show a valid extension of time for payment of the indebtedness due from the defendant to the plaintiffs. The amount of the indebtedness in arrear was substantially admitted during the progress of the trial. We think the county court committed no error requiring us to interfere with the verdict and judgment.

Judgment and order affirmed, with costs.

All concur.


text:
    William D. Halsey, Resp’t, v. Ebenezer H. Hart, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Appeal—Conflicting evidence.
    Where there is a conflict in the evidence, a verdict, rendered in a justice’s court is regarded as controlling, unless it is manifestly and clearly against the weight of evidence.

      John A. Milne, for app’lt; William Austin, for resp’t
   Hardin, P. J.

Plaintiff derived possession of the cutter in the year 1885 or 1886 from Mrs. Harmon. When he visited her house, the cutter was in her possession. He entered into negotiations with her for the purchase thereof, and consummated it by paying her $3.50. She, by her conversations and declarations made contemporaneously with the sale to him, asserted her ownership of the cutter. She had had possession of it for a considerable length of time. Undoubtedly the evidence discloses that the cutter was once the property of the defendant’s father. There is no direct and positive evidence that the father of the defendant did not sell or give the cutter to Mrs. Harmon. Her possession of it was prima facie evidence of the ownership of it. If she owned it at the time she sold it to the plaintiff, of course he acquired an absolute title to it. As bearing upon the theory that she was the owner, and that she, by her sale to the plaintiff, conferred upon the plaintiff an ownership in the cutter, are the declarations made by her and her actual sale thereof to him, to ,which may be added the fact that the evidence discloses that for some time after the defendant acquired knowledge that the plaintiff had possession of the cutter, the defendant acquiesced in the possession of it by the plaintiff. At least he delayed for some period of time after he derived such information his efforts to gain possession of the cutter. It was for the jury to determine upon all the evidence presented by the plaintiff, as well as the testimony presented by the defendant, whether the plaintiff was owner of the cutter at the time this action was commenced, in February, 1893. It is true, the defendant was sworn as a witness, and gave testimony quite inconsistent with the theory upon which the plaintiff sought to maintain his ownership and right to possession of the property. The defendant, however, being a party in interest, the jury may have disbelieved his testimony, as, under the rules laid down frequently by courts, it had the right to do. Elwood v. Telegraph Co., 45 N. Y. 549; Kavanagh v. Wilson, 70 id. 177; Koehler v. Adler, 78 id. 287 ; Wohlfahrt v. Beckert, 92 id. 491; Honegger v. Wettstein, 94 id. 253; Dean v. Van Nostrand, 23 N. Y. Wkly. Dig. 97. According to the usual rule applied to verdicts taken in justices’ courts, where there is a conflict in the evidence, the verdict is regarded as controlling, unless it is manifestly and clearly against the weight of evidence. We are not prepared to say this is such a case as requires the verdict to be disturbed on that ground. .

2. It is insisted in behalf of the plaintiff that he remained in possession of the cutter more than six years next preceding the commencement of the action, and more than six years next preceding the seizure of it by defendant, and therefore that the defendant’s right to take from him the possession of the cutter is barred by the statute of limitations. See Code Civ. Proc. §§ 380, 382, 397. Some of the evidence would seem to indicate, although not very clearly, that the plaintiff had possession of the cutter, to the knowledge of the defendant, more than six years prior to the 4th of February, 1893, when the defendant took the same out of the possession of the plaintiff. Possibly the evidence may have led the jury to find that the plaintiff had had possession of the property for more than six years prior to the taking of the same from his possession by the defendant, and, if the facts were thus found, the verdict may have been predicated upon the idea that the defendant’s right was barred by the statute of limitations. Duryea v. Andrews, 34 St. Rep. 774. However, without passing definitely upon this phase of the case, if the position stated in the first branch of this opinion is correct, the judgment of the county court should be reversed, and the verdict and judgment of the justice’s court sustained. Judgment of the county court reversed, with costs, and the judgment of the justice’s court affirmed, with costs.

All concur.


author: Pur Curiam.

text:
    Susie Sheldon, App’lt, v. Cornelia Mott et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)
    Stay of proceedings—-Evasion.
    An order, staying proceedings by a substituted attorney, cannot be nullified by a special appearance by such attorney on a motion to dismiss an appeal theretofore taken by his client.
    Motion to dismiss an appeal from the order dismissing the complaint.

      Alonzo P. Strong, for the motion ; Frank H. Short, opposed.
   Pur Curiam.

On the 9th day of April, 1894, an order was made in the above-entitled action, dismissing plaintiff’s complaint, and judgment entered thereon. The plaintiff thereafter appealed therefrom to this court. Pending such appeal, and on the 27th day of November, 1894, an order was made at a special term of this court, whereby Alonzo P. Strong was substituted as the plaintiff’s attorney of record in this action, in place of Frank H. Short, from which order Mr. Short appealed to this court. On the 21 day of December, 1894, Justice Martin granted an order staying “all proceedings on behalf of the plaintiff herein, or by and on behalf of Alonzo P. Strong, as attorney or otherwise, on the order granted by a special term of this court [being the order of substitution referred to], until the decision of the general term upon the appeal taken from such order by the appellant, Frank H. Short.” Thereafter, on the 4th day of February, 1895, the said Frank H. Short was served with affidavits and notice of a motion to be made at this term of the court to dismiss the appeal from the order herein granted on the 9th day of April, 1894, dismissing the plaintiff’s complaint in this action, “and for such other relief as may be just, with costs of motion against Frank H. Short personally.” The notice of motion was signed, “ Alonzo P. Strong, Appearing as Attorney for Susie Sheldon, Plaintiff, for the Purposes of this Motion.” It is unnecessary to discuss the merits of the.motion, or allude to the contents of the affidavits upon which the motion is founded. The motion is made by Alonzo P. Strong as attorney for the plaintiff. He has heretofore been substituted as attorney for the plaintiff, but an order has been granted by a justice of this court, prohibiting him from acting upon such order until the hearing and determination of the appeal therefrom. His claim is that he is not violating such stay, because the stay prohibits him from taking any proceedings on that order ; and he professes that he is not appearing for the plaintiff pursuant to such order, that-his appearance is for the purposes of this motion only. This seems to us merely an evasion. The stay cannot be nullified by a special appearance. The order appointing an attorney for the plaintiff appoints him as attorney in this action. If he succeeds in this motion now before us, the action will be finally ended and disposed of; everything that can be accomplished by an attorney of record, will have been accomplished. He will have acted as attorney for the plaintiff in this action, and will have accomplished all that an attorney could do. He will have discharged those functions which the order of the special term substituting him as an attorney of record was intended to enable him to discharge, and that despite the order of Justice Martin prohibiting him from so doing. We do not think that we should permit orders of justices of this court to be thus trifled with or evaded. The proper course to pursue is to endeavor to have the stay vacated or modified. The motion is therefore denied, with $10 costs, to be paid by Mr. Strong personally, without prejudice, however, to the renewal of the motion upon the vacation or modification of the stay of proceedings herein referred to.


text:
    The People ex rel. Jesse Read, App’lt, v. Board of Town Auditors of Town of Smithville, Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Towns—Powers.
    There is no authority for the appointment of agents or attorneys to discharge the duties that are imposed upon the several governmental officers of a town in refunding its bonds.
    Appeal from an order denying an application for a writ of mandamus.

    In December, 1870, the town of Smithville, issued several town bonds in aid of a railroad. At the town meeting in 1887, a resolution was passed as follows: “ Resolved, that the chairman, George W. Church, appoint a committee of three to look after the town bonds.” The resolution was carried, and the chairman appointed John P. Davis, Jesse Reed, the relator, and Samuel Cline, as such committee. At the annual town meeting held in Smith-ville at the town hall on the 21st of February, 1888, it appears by the record thereof that: “ The following proceedings were had, and resolutions weré duly passed, to wit: The report of Jesse Read, committee on refunding town bonds, was duly made by Mr. Read, and, on motion made and carried, the said report was accepted and approved. Resolved, that Jesse Read be continued a committee to refund or purchase the bonds of the town of Smith-ville, issued December 24th, 1870, and that he be allowed for his services as such committee five per cent on all bonds that may. be or have been funded or purchased subsequently to February 14, 1887.” On the 9th of November, 1893, to the board of town auditors of the town of Smithville, the relator presented his claim in writing, duly verified by him, “whereby he asked payment from the said town the aforesaid sum of $2,855 and four years’ interest thereon ($685.20), amounting to $3,540.20; that said account was received by said board, who thereafter acted on the same, and refused to allow deponent’s said claim, or any part thereof, and rejected the same.” It appears “the said board unanimously determined that the said claim of the said Jesse Read was invalid, and without merit as a claim against the said town, and duly audited the same, and unanimously rejected it, and made a minute of their rejection”; and, after stating several facts relating to the origin and history of the claim made by the relator, the auditors completed their statement in regard to said claim in the following language: “We do therefore certify, find, decide, and determine that the said annexed claim of the said Jesse Read is illegal and void, is not a legal charge against the town of Smith-ville, Chenango county, N. Y., and the same is hereby passed upon, disallowed,' and rejected, and each and every part thereof.” Numerous affidavits were used at the special term relating to the claim aud its rejection.

      A. W. Cumming, for app’lt; John W. Church, for resp’t.
   Hardin, P. J.

In Wells v. Town of Salina, 119 N. Y. 280; 29 St. Rep. 732, it was said that:

“Towns and other municipal corporations are organized for governmental purposes, and their powers are limited and defined by the statutes under which they are constituted. They possess only such powers as are expressly conferred or necessarily implied.”

Appellant’s learned counsel seeks to support the claim of the relator by referring to the several statutes relating to the bonding acts and provisions therein in relation to refunding at a lesser rate of interest. Chapter 75 of the Laws of 1878 provided for the issuance of new bonds in place of existing bonds, and in the second section of the act it was provided that the exchange of existing bonds was to be done under the supervision of “the constituted and statutory authorities of any such village, city, town or county”,; and in the fifth section it was provided that “nothing in this act contained shall be so construed as to permit any village, city, town or county in this state to increase its present bonded indebtedness” ; and in chapter 317 of the Laws of 1878 section 2 was amended, and power was given “the said officers or boards of any such village, city, town or county” to make such exchange, etc.; and in chapter 522 of the Laws of 1881 further provision was made in respect to indebtedness of towns being paid by the issue of new bonds ; and in section 4 it is provided, viz.:

“It shall be the duty of the railroad commissioners, supervisors and financial officers of towns, villages, cities and counties, having in charges the moneys received and collected and responsible for the payment of the interest and principal due on the bonds under this act, aud they are hereby required to report annually to the board of supervisors of counties, the trustees of villages and the mayor and board of aldermen or common council of cities as the case may be.”

And in chapter 316 of the Laws of 1886, further provision was made for the issuing of new bonds “by the board of trustees, mayor or common council, town board, board of supervisors or supervisor, or railroad commissioners or officer or officers now having in charge according to law the payment of interest or principal on bonds,” etc.; and in section 4 it was made the duty of “the railroad commissioners, supervisors and financial officers of towns, villages, cities and counties, having in charge the moneys received and collected, and responsible for the payment of the interest and principal due on bonds issued under this act” to report annually to the board of supervisors of the counties, trustees of villages and mayor and board of aldermen and common council of cities, the sum due and payable the succeeding year; and in the sixth section of that act the commissioners were required to execute official bonds before entering upon the discharge of their duties under the act. We find no provision in any of the statutes to which reference has been made expressly authorizing the appointment of agents or attorneys to discharge the duties that are imposed upon the several governmental officers mentioned in the several statutes to which we have referred. By chapter 122 of the Laws of 1883, it was provided, viz.: “All votes in town meetings authorizing the raising of money or incurring any town liability exceeding five hundred dollars shall be by ballot;” and the second section of that act provided that the town clerk shall give twenty days’ notice, posted in five conspicuous places, of any proposed appropriation or tax for the raising or borrowing of money, etc. The second section was amended by chapter 82 of the Laws of 1885, providing that the notice to be given by the town clerk shall be for five days only. It is contended that the resolution of the town passed in 1888 is invalid, because the votes thereon were not taken, as prescribed in section 1 of the statute of 1883, by ballot. If force is to be given to that vote, or the action of that town meeting, establishing a liability on the part of the town to pay the relator, then it seems that it falls within the direct language of section 1, as it is there provided that all votes “incurring any town liability exceeding five hundred dollars shall be by ballot.” Such seems to have been the construction put upon the provisions of the section by the relator as well as by the board of audit, for thereafter an application was made to the board of supervisors of the county to legalize or confirm the action of the town board in 1888 under the provisions of chapter 326 of the Laws of 1885. In the' last-mentioned act power was given to the board of supervisors, “by a two-thirds vote of all the members elected thereto, to legalize the informal acts of any town meeting in raising money for any purpose for which such money is authorized to be raised by law, and by like vote fo legalize the irregular acts of-any town officer,” etc. Upon a full hearing before the board of supervisors of the application to legalize the action of the town board, and to place the claim presented by the relator upon the schedule of the town, after a full consideration of the whole matter relating to the merits of the relator’s claim, as well as to the sufficiency of the resolutions, and authority claimed to have been conferred, the board of supervisors refused to legalize the action of the town board by sanctioning the resolution of 1888, and refused to audit and allow the claim of the relator. It seems to follow, therefore, from the foregoing state of facts, that the town board has rejected the claim of the relator as well as the board of supervisors, and that there is found no authority warranting the town board in auditing and allowing the claim of the relator.

In People v. Barnes, 114 N. Y. 317; 22 St. Rep. 164 and 23 id. 795, it was said “the term ‘audit,’ as applied to the action of a board of town auditors, means to hear and examine; it includes both the adjustment or allowance and the disallowance and rejection of an account”; and in that case it is said that the jurisdiction of the board of town auditors over claims “is not only original, but its decision is conclusive until reversed or modified by another court in the manner prescribed by law,—i. e. in proceedings by certiorari”; and near the close of the opinion in that case it was said, “the relator has failed to establish by the evidence contained in the record the absolute liability of the town for the whole or part of any one of the claims,” and for that reason the case did not fall within that class of cases where there is a statutory liability creating legal charges against a town, as in the cases of People v. Board of Sup’rs of Delaware Co., 45 N. Y. 196, and People v. Town Auditors of Elmira, 82 id. 80. In People ex rel. Durant L. J. Co. v. Jeroloman, 139 id. 17; 54 St. Rep. 454, it was said that a mandamus is only granted in the sound discretion of the court. See, also, People ex rel. Millard v. Chapin, 104 N. Y. 96; 5 St. Rep. 588. Nothing is found in the case of Wells v. Town of Salina, 55 St. Rep. 95, inconsistent with the views already expressed, as in that case “the town board did not act upon the claim,” and it was therefore said that what took place before the board was not an adjudication that formed a bar to any further proceedings on the part of the plaintiff. We think the action of the special term denying the writ should be sustained. Order affirmed, with $10 costs and disbursements.

All concur.


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    Mary J. Cross, Resp’t, v. A. Palmer Smith, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    1. Witness—Section 829 of Code—Objections.
    A general objection is insufficient to present the question as to the competency of the witness to testify, under section 829 of the Code.
    2. Costs—Equity action.
    Where, in an action in equity, each party succeeds as to part of the matters in litigation between them, costs are not allowed to either as against the other party.
    Appeal from a judgment in favor of plaintiff.

      Henry Purcell, for app’lts: James A. Ward, for resp’t.
   Hardin, P. J.

Plaintiff's complaint alleges that on the 24th day of August, 1872, Samuel Wilson deeded his interest in the premises described in the complaint to Moses H. Cross, and that Moses H. Cross executed a mortgage on the said premises to Samuel Wilson for the sum of $5,000. The deed was recorded August 26, 1872, in the Jefferson county clerk’s office. The complaint further alleges that on the 26th of August, 1872, Wilson sold, assigned and transferred the mortgage and the bond accompanying the same to one Timothy Smith, since deceased, for the sum of $4,500. And the complaint alleges that the conveyance and the mortgage and the transfer therefore were “in fact one transaction, and were a scheme, device, and contrivance on the part of said Timothy Smith to retain a bonus of five hundred dollars for the loan of said five thousand dollars, and as unlawful usury, and said mortgage is usurious.” In the month of August, 1873, Timothy Smith died, leaving a last will and testament, wherein he appointed Timothy A. Smith and A. Palmer Smith and one Perry H. Smith executors. The will was admitted to probate by the surrogate of Jefferson county, and letters testamentary were issued to two executors; and they, by an instrument bearing date August 31, 1875, assigned the bond and mortgage to the late John C. McCartin, who on the same day assigned the bond and mortgage to Timothy A. Smith and A. Palmer Smith. The assignment was recorded in the clerk’s office of Jefferson county. The complaint describes the premises which were described in the mortgage mentioned, and the complaint alleges that by a deed bearing date June 2, 1873, Moses H. Cross conveyed the premises to one Maltby, who, on the 1st day of August, 1875, conveyed the premises to the plaintiff. The complaint alleges that on the 29th of December, 1879, “said Samuel Wilson, by deed executed, acknowledged, and delivered on that day, conveyed his interest in the mortgaged premises to the plaintiff, Mary J. Cross.” The complaint also alleges that on the 27th of August, 1877, the defendants Timothy A. Smith and A. Palmer Smith, then being owners of the mortgage given by Cross to Wilson, commenced an action to foreclose said mortgage. An answer was interposed by the plaintiff, Mary J. Cross, who was a defendant in that action, and also by her husband, Moses H. Cross, alleging that the mortgage was usurious and void. The issue joined in that action was brought to trial, and a judgment entered on the 6th of April, 1878, decreeing the foreclosure of the mortgage and the sale of the premises. The premises were sold on the 30th day of April, 1878, and were bid in on the sale by the defendants Timothy A. Smith and A. Palmer Smith, who received the sheriff’s deed, which was recorded in the office of the clerk of Jefferson county, and under that deed they entered into possession of the premises. In that action Mary j. Cross and Moses H. Cross appealed from the judgment directing a sale of the premises, and the judgment was, by thé general term, reversed. On the 20th day of June, 1879, a motion was made in the general term for restitution, and for restoration of the premises. Timothy A. Smith and A. Palmer Smith were ordered to surrender and deliver up to Mary J. Cross and Moses H. Cross the possession of the premises so sold under said judgment, unless the said Timothy A. Smith and A. Palmer Smith should give a bond in the sum of $5,000, with sureties, “ that they would account for the rents and profits of said mortgaged premises.” Subsequently, Timothy A. Smith and A. Palmer Smith, with two sureties, executed a bond, on the 14th of July, 1879, conditioned that Timothy A. Smith and A. Palmer Smith “account for the rents, issues, and profits of the mortgaged premises.” It is averred in the complaint that since the 30th day of April, 1878, Timothy A. Smith and A. Palmer Smith have remained in possession of the premises, and have “received the rents and profits of said mortgaged premises.” It is averred in the complaint .that the rents of said premises “ amount to upward of $1,000 a year, and have all been paid to defendants Smith since October, 1877.” And it is averred in the complaint that Timothy A. Smith and A. Palmer Smith “ have received the rents of said premises from the receiver appointed by the county court, and from the tenants who have occupied said premises under them, since the 30th day of April, 1878, which in the aggregate, amounted to more than sufficient to pay, satisfy, and discharge the'said mortgage on said premises executed by the said Moses H. Cross to the said Samuel Wilson, and now owned by the defendants Timothy A. Smith and A. Palmer Smith.” It is also averred in the complaint that the plaintiff “demanded of the defendants Timothy A. Smith and A. Palmer Smith an account or statement of the rents received by them made for repairs, on the buildings, and for taxes and insurance by them paid, but , the said defendants have neglected and refused, and still neglect and refuse, to give any statement or account.” The complaint further avers “ that, in equity, all that is due defendants Smith is the sum of four thousand and five hundred dollars, with interest from August 24, 1872 ; that all sums paid on said mortgage, or received from said property for or on account of rents or otherwise, over and above said sum of four thousand five hundred dollars and legal interest, together with said sum paid by said defendants Smith for taxes, insurance, and repairs, the said defendants should, in equity, pay to plaintiff, or account therefor.” In plaintiff's compláint, she asks that “ an accounting be had between the parties to this action ; that the amount found due on said mortgage be ascertained and stated ; that the account of said Smiths for money paid, laid out, and expended by them for repairs, insurance, and taxes on the property be stated and passed upon; ” also, that. Timothy A. Smith and A. Palmer Smith “ be ordered and directed to pay to plaintiff whatever sum the said Smiths have received for rents of said premises, over and above amount sufficient to satisfy said mortgage, or if the sum so received is insufficient to satisfy said mortgage, or the amount due thereon, that the sum remaining due and unpaid be ascertained, which sum the plaintiff hereby offers to pay to the defendants.” And the plaintiff asks to “ be permitted to redeem said premises from said mortgage, and have such other, further, or different relief as may be agreeable to equity, or she may be entitled to as a matter of law, or the court may see fit to grant.” The complaint was verified in August, 1891. Timothy A. Smith and A. Palmer Smith served an answer to the complaint,. which contained several denials of the allegations of the complaint, and they allege they were in possession “of said premises in pursuance of an order of the court made in said foreclosure action ; that no final judgment has ever been rendered in-said action ; and that said action is still pending, and the defendants have never become liable to said Mary J. Cross, or to any other person, to account for the rents and profits of said premises.” They also allege that on the 27th of August, 1877, they commenced an action to foreclose the mortgage referred to, and that the action, after issue joined, remained without any final judgment entered therein. The issues joined in this action were referred and tried before the same referee, and apparently at the same-time that the action to foreclose the mortgage was tried. In this, action the referee found that, at the time of the execution and delivery of the mortgage, Moses H. Cross and Samuel Wilson were co-partners in the grocery and butcher business in the city of Water-town, and that as such- copartners, they were the owners of the-mortgaged premises described in the complaint. He also found, viz.:

“Said Moses H. Cross and Samuel Wilson applied to said Timothy Smith for a loan of money, to be secured by a mortgage upon said premises. Said Smith declined to loan said Cross and said Wilson money upon a mortgage to be executed by them, and suggested that if one deeded to the other, and the grantee gave back a mortgage, he (Smith) would buy such mortgage at a discount. Thereafter, the said deed and mortgage hereinbefore mentioned were executed and delivered. That said deed was executed and delivered by said Wilson to said Moses H. Cross, and said mortgage executed by Cross and delivered to Wilson, for the purpose of raising money with which to pay the firm debts of Cross & Wilson, with intent on their part of borrowing money of the said Timothy Smith, and disposing of the mortgage to him at a discount. • That said mortgage was, in form, transferred by said Wilson to said Smith for the sum of $4,500. That the said mortgage and the said bond accompanying it, as between said Wilson and Cross, had no validity and inception, but the same were made for the purpose hereinbefore stated. That said Timothy Smith received an assignment of said bond and mortgage, and advanced said ,$4,500 therefor, understanding they were bona fide and valid securities; relying upon the false representations of the mortgagor and mortgagee that they were valid securities, given upon a full consideration, and free from usury. That the said bond and mortgage were usurious.”

After stating the accounts between the parties, treating the mortgage as valid, in the hands of the assignees thereof, for the sum of $4,500 and interest thereon, and after allowing the expenditures made by the parties in possession of the mortgaged premises for taxes, insurance, and repairs, the referee charged them with the receipts from the rents, issues, and profits of the premises, and found that “ on the 1st day of January, 1893, there was due said Smiths, on account of said mortgage, the sum of $298.25.” The referee further found that:

“ During the year 1893, the said Smiths received in rents from said premises, over and above all sums expended by them on said premises during that year, the sum of $738, which overpaid the amount due said Smiths $422.11, January 1, 1894. That during the year 1894, and up to March 1st of that year, said Smiths received $108.96 over and above all sums paid out by them during that" period. That there is due the plaintiff from said A. P. Smith and Lucy A. Smith, as administratrix of the estate of Timothy A. Smith, deceased, the sum of $531.07, with interest on $422.11 from January 1, 1894, and interest on $108.96 from March 1, 1894.”

The referee found as conclusions of law, viz.:

• “(1) That the plaintiff, Mary J. Cross, is entitled to a judgment or decree adjudging the bond and mortgage executed by the defendant Moses H. Cross on the 24th day of August, 1872, paid- and satisfied, and that the same, together with the sheriff’s deed above mentioned, be canceled of record. (2) That the plaintiff is entitled to full restoration and possession of the premises described in the complaint; that she recover the sum of $531.07, with interest, * * * together with costs of this action.”

J udgment was entered on the 14th day of August, 1894, in accordance with the findings of the referee. Several requests to find were made, to which the referee yielded, and several requests to find were made which he refused to find. Exceptions were served and filed. Appellants challenge some of the findings made by the referee, and insist that there is no evidence that Cross & Wilson applied to Smith for a loan, and he refused it, and suggested the scheme of one party deeding to the other, and the other giving a mortgage back, and he would purchase it at a discount. ÍMoses H. Cross was called as a witness for the defendants, and testified that the firm of Cross & Wilson, in 1872, were in debt; and this witness, at folio 254, was asked the following question :

“Q. State whether or not this bond and mortgage were made for the purpose of raising money. (Objected to by defendants Smith as incompetent and immaterial. Objection overruled, and defendants excepted.)”

The witness answered :

“It was given for the purpose of getting money for the firm of Cross & Wilson. Q. Was there any other consideration, except for the purpose of getting money for the firm ? (Objected to by defendants as incompetent and immaterial. Objection overruled, and defendants excepted.) A. There was not.”

The witness continued, and said:

“At the time the bond and mortgage were given, there was no dissolution of the firm. I went but of possession of the premises on the appointment of James M. Carpenter as receiver.”

We have stated all the objections that were made to the testimony which we have quoted, and we think they were properly overruled. It is true that at a later stage of the examination the defendants’ attorney moved to strike out the answers of the witness on the ground that the evidence was incompetent and immaterial, “and on the further ground that answer involved a personal transaction and communication between the witness and Timothy Smith, deceased, and was therefore incompetent, under section 829 of the Code.” This motion was denied, and defendants excepted. According to the rule laid down in Levin v. Russell, 42 N. Y. 251, in the opinion of Grover, J., we think the motion was too late. In addition to the evidence which we have already quoted, the plaintiff called Samuel Wilson as a witness, who testified that he went into partnership with Cross in April, 1865, and continued until the fall of 1872, and he stated the purpose for which the deed was given by him to Moses Cross in the following language:

“It was given for the purpose of raising money. The money was raised to pay our firm debts.”

Thereupon, the following questions were propounded to the witness:

“Q. State whether or not there was any other consideration between you and Cross for the deed, except it was made for the purpose of raising money to pay the firm debts. (Objected to as incompetent and immaterial. Objection overruled, and defendants excepted.) A. No, sir. Q. State whether or not it was agreed and consented to between you and Cross, before you gave him the deed, that he was to give back to you a mortgage for $5,000, and you should negotiate the same, and raise money on it to pay your firm debts. (Objected to by defendants as incompetent and immaterial. Objection overruled and defendants excepted.) A. Yes, sir; that was the agreement. Q. After the mortgage given from Cross to you was disposed of, did Mr. Cross have the money? (Objected to as incompetent and immaterial. Objection overruled, and defendants excepted.) A. Yes, sir; most of it. Q. State, if you can, for what purpose the money was used. (Objected to by defendants as incompetent and immaterial. Objection overruled, and defendants excepted.) A. It was used to-pay our firm debts. I had part of it, and Cross liad part of it.”

We think the objections taken to the questions propounded, which we have just quoted, were not sufficient to present the question whether the evidence was objectional, under section 829 of the Code. In Stevens v. Brennan, 79 N. Y. 259, a general objection was made and overruled, and it -was said the exception did not present the question as to the competency of the witness to testify, under section 829 of the Code. In Sanford v. Ellithorpe, 14 Wkly. Dig. 154, it was held by the general term of the-third department in 1882, that:

“An objection to testimony inadmissible under section 829 of the Code, to be available on appeal, must be made in such terms-as to call attention to that fact; an objection on the ground that it is ‘incompetent and immaterial’ is not sufficient. Somerville v. Crook, 9 Hun, 668.

We think the finding complained of by the appellants is sustained by evidence, and therefore the case of Sickles v. Flanagan 79 N. Y. 224, does not apply to the case in hand. We think the evidence warranted the referee in finding that Timothy Smith purchased the bond and mortgage for $4,500, in good faith, and in reliance upon representations made by the mortgagor and mortgagee that the bond and mortgage were valid, and given for a full consideration, free from usury, and that in his hands, or in-the hands of his assignee, the same could be enforced for the-amount of money that was advanced thereon. Miller v. Zeimer, 111 N. Y. 441; 19 St. Rep. 120 ; Payne v. Burnham, 62 N. Y. 69.

2. In June, 1891, when this action to redeem was commenced, according to the report of the referee, there was apparently due in the neighborhood of $1,500 on the mortgage, and the referee expressly states that on January 1, 1893, there remained due on the mortgage $298.25 ; and it was only by allowing the rents accruing after that date, and just prior to the conclusion of the trial, that the referee reached a conclusion that the mortgage had been overpaid by the rents and profits. It appears by the referee’s report that he took the account for rents to March 1, 1894, and,, having done so, reached the conclusion that the mortgage was overpaid. His report bears date July 12, 1894. In the second volume of Barbour’s Chancery Practice (page 199), it is said :

“ As a general rule, a party coming into a court of equity to redeem pays costs to the defendant, in addition to the amount due upon the mortgage, although he obtains the relief prayed for; yet if the defendant improperly resists the claim of the complainant. to redeem, or sets up an unconscientious defense, he will be refused his costs, and may be compelled to pay costs to the adverse party, in the discretion of the court. * * * It is essential to a bill to redeem a mortgage that the complainant should offer to pay the debt, interest, and costs.”

In the case in hand there was no tender in advance of the action of the amount due upon the mortgage.

In Slee v. Manhattan Co., 1 Paige, 48, it was held, viz.:

“ Where a party files his bill to redeem, the general rule is that he must pay costs to the mortgagee, although he should be successful. There are, however, exceptions to this rule, as where the mortgagee sets up an unconscientious defense. In such case the mortgagee is not only refused costs, but must pay costs to the other party.”

In Benedict v. Gilman, 4 Paige, 58, it was held, viz.:

“ As a general rule, a party who is permitted to redeem .mortgaged premises, whether he is plaintiff or defendant in the suit, must pay the costs on the suit, in addition to the amount due on the mortgage.”

The same rule was restated in Vroom v. Ditmas, 4 Paige, 526. The rules relating to the exercise of discretion in equity cases were stated in Couch v. Millard, 41 Hun, 215; 4 St. Rep. 167, and in West v. City of Utica, 71 Hun, 546; 54 St. Rep. 911, relating to costs in equity actions, and in the latter case it was held that the discretion exercised in an equity action, as to costs, may be reviewed ; following the case of Rosa v. Jenkins, 31 Hun, 384. In Law v. McDonald, 9 Hun, 23, it was held that “ where, in an action in equity, each party succeeds as to part of the matters in litigation between them, costs are not allowed to either, as against the other ”; and that case was approved in West v. City of Utica, supra. And in Law v. McDonald, supra, the judgment “was modified so as to stand without costs to either party, as against the other.” We think that rule should be applied to the case in hand. Judgment modified by striking therefrom the award of costs to the plaintiff, and by inserting a provision therein to the effect that neither party shall recover costs against the other, and, as so modified, affirmed, without costs of the appeal to either party. See West v. City of Utica, supra.

All concur.


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    Lucy A. Smith, as Administratrix, etc., et al., App’lts, v. Moses H. Cross et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 1895.)

      1. Mortgage—Redemption.
    Where the mortgagee is in possession and has received the rents and profits of the mortgaged premises, equitably he should be charged with the amount thereof •„ and, upon an ascertainment of such amount, it is proper to state the amount of the principal and accrued interest of the mortgage, and upon such amount apply the rents received

      2, Same.
    Snch mortgagee cannot be divested of the possession until the application of the rents has been. made by the court in satisfaction of the mortgage.

      Appeal from a judgment dismissing the complaint.
    In August, 1877, this action was commenced to foreclose a mortgage given collaterally to a bond executed by Moses H. Cross to one Samuel Wilson. The mortgage was given to secure the consideration stated therein, of $5,000, and covered lands in Jefferson county. In the complaint it is averred that “ the said mortgage was given to secure a part of the purchase price of the above-described premises.” The answer of Moses H. Cross and the answer of Mary J. Cross contained averments setting out that the mortgage was usurious, having been made for the purpose of raising money, and sold by Wilson, the mortgagee, to one Timothy Smith for the sum of $4,500, and no more. Several trials have been had, and several appeals taken, in the case. See 16 Hun, 488; 25 Hun, 68; 90 N. Y. 549. The only conclusion of law stated by the referee whose trial is under review was as follows t “ That the plaintiffs’ complaint be dismissed, and that the plaintiffs recover costs, unless the offer made herein by defendants Moses H. Cross and Mary J. Cross was more favorable to plaintiffs, at the time of the offer, than the amount then due on the mortgage, in which case plaintiffs are- to have costs to the time of the offer, and defendants costs subsequently thereto.” The referee found, among other conclusions of fact, viz.: “ The plaintiffs are entitled to enforce the collection of said mortgage to the amount of $4,500 advanced by Timothy Smith, as hereinbefore found, with legal interest thereon, less the amount paid or applied thereon out of moneys received for rents.” He also found the said sum of $4,500, with interest thereon, was all paid prior to January 1,, 1894. The referee’s report bears date July 12, 1894. A judgment has been entered in Jefferson county clerk’s office thereon, dismissing plaintiffs’ complaint, and awarding defendants the sum of $733.62 as and for their costs and disbursements of the trial, and the appeal now before us is from that judgment.

      Henry Purcell, for app’lts; James A. Ward, for resp’t.
   Hardin, P. J.

Plaintiffs’ learned counsel insists that the referee erred in making certain findings of fact which support plaintiffs’ right to recover the amount advanced by the assignee of the mortgage, to wit, $4,500, notwithstanding the defense of usury, in accordance with the principles laid down in Miller v. Zeimer, 111 N. Y. 443; 19 St. Rep. 120. It seems the complaint was like an ordinary one in mortgage foreclosure cases, and that the prayer in the complaint was for a judgment declaring $5,000 of principal to be due upon the mortgage. However, the answer sets up in detail the facts relating to the circumstances of the origin of the mortgage, and of the sale thereof by the mortgagee to Timothy Smith; and so far as we are able to discover from the course of the trial, as presented in the case before us, no objection was taken during the progress of the trial which called the attention of the referee to the point now suggested. Appellants call our attention to the case of Day v. Town of New Lots, 107 N. Y. 148 ; 11 St. Rep. 361, and Romeyn v. Sickles, 108 N. Y. 650; 13 St. Rep. 864, which were actions at law where technical rules were applied to the pleadings. However, as near as we can discover from the course of the trial in this case, the question which those cases determined was not fairly presented to the referee. It seems the parties, by the course of the trial, assumed that the rule which is applicable to cases in equity applied, and that the referee was authorized to give such relief as, at the time of pronouncing his decree, according to the proofs presented and principles of equity, the parties were entitled to by the case presented. He seems to have ascertained the amount of principal and interest due upon the mortgage upon the basis of its being valid to the extent of $4,500; and, having ascertained that amount, he then proceeded to apply, upon the evidence produced before him in this case (and perhaps in the other action brought to redeem from the mortgage, which was tried at the same time before him), and upon such evidence reached the conclusion that “the said sum of $4,500, with interest thereon was all paid prior to January 1, 1894.” By adopting such course he manifestly received evidence of facts and circumstances of the parties beyond the exact limits of the issues originally framed between the parties. After a sale of the premises upon a decree of foreclosure, the plaintiffs took possession, and received the rents and profits of the land covered by the mortgage, and equitably they should be charged with the amount thereof; and upon an ascertainment of the amount received it was proper to state the amount of the principal and accrued interest, and upon such amount to apply the rents received, on the mortgage, in accordance with the findings of the referee, taking as a basis $4,500 and interest thereon; and the plaintiffs, if anything remained due upon the mortgage, were equitably entitled to a decree establishing that amount, and a provision to the effect that unless the same should be paid the defendants’ right therein should be foreclosed. Ruckman v. Astor, 9 Paige, 517. Plaintiffs’ character as mortgagees in possession could not be divested until the application of the rents had been made by the court in satisfaction of the mortgage. Hubbell v. Moulson, 531 N. Y. 225.

2. We have assumed that the evidence warranted, as we think it did, the findings of fact made by the referee to the effect that the mortgage was valid to the extent of $4,500 and interest thereon.

3. It is contended by the appellants that there were certain admissions in the answer which precluded the defendants from giving proof of the circumstances relating to the alleged usury in the mortgage. The course of the trial seems to have assumed that the questions relating to the inception of the mortgage were raised by the pleadings, tinder such circumstances, we think the plaintiffs are too late in their objection. The answers were very broad, and warranted the admission of all the facts and circumstances that were developed relating to the alleged usury in the mortgage. It is difficult to see that the plaintiffs in that regard, have been surprised or misled by the course of the trial. The course of the trial is quite different from that pursued in Dunham v. Cudlipp, 94 N. Y. 129.

4. Several exceptions were taken during the progress of the trial, to which attention has been given, and it is not believed that they present prejudicial error, which requires us to interfere. This is. an equity action. See opinion of Cross v. Smith, 66 St. Rep. 55.

5. According to the course of the trial and the findings made by the referee, it is quite apparent that the referee finally reached the -conclusion to dismiss the complaint on the ground that the bond and mortgage, so far as they were valid, had been paid by the rents received by the plaintiffs of the premises. It appears by the ■case that during, the hearing before the referee the trial “was suspended by consent of the parties, and the action in this court brought by the defendant Mary J. Cross against the plaintiffs herein, for the redemption of said mortgaged premises, on the ground that the mortgage had been fully paid, and which case is now on appeal to the general term, was proceeded with before the same referee who tried this action.” The case then continues to state, viz. :

“ On the trial of said redemption action the plaintiffs in that ■case gave evidence before the referee from which the referee found that between May 1, 1878, and March 1, 1894, while the plaintiffs in this action were in possession of the said mortgaged premises, they received in rents from the same the sum of $12,477.04; and the defendants in that action, the plaintiffs in this, gave evidence from which the referee found that while the said plaintiffs were in possession of said mortgaged premises they paid out, for the benefit of the same, the sum of $3,951.10. The amounts so found by the referee as having been received and disbursed are fully set ■out in finding nineteen of his said report, which is here referred to.”

After the parties had adopted such a course for the trial of this action, and in pursuance thereof it had been made to appear by evidence which warranted the finding that the said sum of $4,-500 was all paid prior to January 1, 1894,” we think the discretion exercised by the referee in respect to the costs was erroneous. After reaching such conclusions, he might properly have dismissed the complaint without costs, and we are of the opinion that he ought not to have awarded costs in favor of the defendants. We think the judgment should be modified by striking therefrom the costs awarded against the plaintiffs, and, as modified, affirmed, without costs of this appeal to either party.

Judgment modified by striking therefrom the costs awarded against the plaintiffs, and as modified affirmed, without costs of the appeal to either party.

• All concur.


text:
    Sarah M. Simmons, App’lt, v. Catharine A. Peters, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Master and servant—Risk.
    . Where the servant has no knowledge of the defects and insufficiencies in regard to the appliances and surroundings of an elevator in use on the master’s premises, it is error to hold, at matter of law that the servant assumed the risks, occasioned by such defects and deficiencies.

      Appeal from a judgment entered upon a nonsuit.

      White & Cheney, for app’lt; W. S. Andrews, for resp’t.
   Hardin, P. J.

Defendant was engaged in the manufacture of shirts on Noxson street, in the city of Syracuse, on the 7th of April, 1890, the business being under the supervision of her husband, Henry Peters. She occupied the first floor, and the whole of the second, third and fourth floors. On the morning of April 7, 1890, which was a dark, rainy morning, Brown, one of defendant’s employes, having reached the store shortly after seven o’clock, found the elevator door closed and locked. While he was unlocking the door, the plaintiff and her two daughters and Miss Garthe and Miss Waslmer entered the building. They advanced towards the elevator, some eighteen and one-half feet distant from where they entered the building; and at that moment Brown called out to them to hurry, and he opened the elevator door, stepped inside and reached for the cable, so as to bring the elevator car down, which was on the fourth floor. As he swung into the elevator, lie seems to-have been partially, if not wholly, out of sight of plaintiff, who was then some nine feet distant from him, and, when he reappeared, the plaintiff was some four or five feet distant from him. Brown was about three or four feet from the door when she walked in. Brown, on taking hold of the cable, discovered that the elevator was locked at the fourth floor; and as he turned and stood in the doorway, facing the women, with his back against the casing, iiis right hand was on the cable, and his left holding the door, which had closed against his arm. The door was open about two and one-half feet. . The plaintiff continued to walk steadily forward. Miss Garthe had a wet umbrella, and she jokingly spattered some drops of water on Brown, and he let go his hold upon the cable and the door, and turned from the elevator suddenly, took a step or two from the doorway, and seized the umbrella. The plaintiff, advancing, in the absence of gaslight, reached the elevator, stopped, and looked ahead, saw the door standing open, and supposing -that she saw the elevator car, walked in, and fell a distance of some twelve feet into the cellar, breaking her leg, from which resulted an amputation, and sustaining injuries for which this action was brought. The door stood about two and one-half feet open at the time she passed in. There was some evidence tending to show that the door was stuck on the uneven and worn shoulder. She had ridden upon the elevator on previous occasions, and on no occasion had she seen the door open, except when the elevator car was at the landing. She had in one hand, at the time she entered the building, a dinner box, and in the other a can of coffee, and did not herself touch the door. She had been accustomed to use the elevator with some forty other women for approach to the fourth floor, where she was engaged in the performance of her duties, and apparently, from her experience and observation of such use, she supposed that, when the door was open, it indicated that the elevator car was present. It appears in the evidence that the husband of the defendant had previously received a warning that the condition of the elevator door was defective. He was at that time acting as manager for his wife, and, as such, was carrying on the business, and he knew that the door did not have automatic attachments, and had seen the elevator door remain partly open on some occasions. There is no exact evidence as to the length of time-that elapsed from the moment when Brown stepped away from the door and the moment when plaintiff fell. There is evidence to the effect that, from the time Brown stepped out of the opening and the time when the plaintiff walked in, the door remained in a stationary position, leaving an opening of about two and one-half feet, and that the door was stationary when the plaintiff passed into the opening.=

In chapter 462 of the Laws of 1887, in section 8, it is provided as follows;

“It shall be the duty of the owner, agent or lessee of any manufacturing establishment where hoisting shafts or well holes are-used, to cause the same to be properly and substantially enclosed or secured, if in the option of the inspector it is necessary to protect the life or limbs, of those employed in such establishments. It shall also be the duty of the owner, agent or lessee to provide, or cause to be provided, such proper trap or automatic doors, so-fastened in or at all elevator ways as to form a substantial surface wl)@q glased, and so constructed as to open and close by action of tfre elevator in its passage, either ascending or descending.”

The evidence warranted a finding by the jury that the statute-had not been complied with by the defendant. Gfuetig, the factory inspector, who had been in the discharge of his duty upon the premises of the defendant, and made an examination of the door, testified as follows, viz.:

“ I worked the door myself. It didn’t work. I opened it. It didn’t close when the elevator left it. It was not closed at the time, it was open, when I came there. * * * The door itself and its connections had no connection with the elevator. * * An automatic door on,an elevator is a door that works by the-action of the elevator itself; either going up or coming down opens the elevator door when it strikes a landing, and closes it when it leaves it; a door which is governed and held in place by the action of the elevator in its motion, ascending or descending.”

The witness added:

“ Then there are others that have trapdoors that open and shut. * * * There always must be a weight to close them.”

The evidence shows that the defendant’s elevator door was hung by iron supports to wheels resting on the tracks, moving in grooves; the tracks inclined towards the shutting of the door; and that the door, if it followed the incline downward, would shut. It was about six feet in width, and six and one-half to seven feet high, and the sill was a solid board, grooved out go as to leave a shoulder on eaph side. Trucks were used on the ground floor for wheeling go,o¿is, and they were wheeled across fti'e sills into the elevator, apd they had slivered the shoulder, and worn it down, so that it h&cl become uneven, rounded, and would allow the door to catch. “ As the door approached being shut, it would gradually go down into these grooves, and, the shoulders being worn off, it didn’t run perfectly straight. It would catch on these shoulders, and stop. Instead of shutting, it would then stand partly open, without any one’s holding it.” That condition of things had existed some six months prior to the accident. It appeared in the evidence that, “ before the time of the accident, there was no person whose business it was to regulate the elevator regularly,” and that, “there were no published or oral rules with reference to its operation.

Whether the defendant was guilty of negligence which contributed to the injury received by the plaintiff, and whether the plaintiff was free of contributory negligence, were questions of fact which should have been submitted to the jury. Freeman v. Glens Falls Paper Mill Co., 39 St. Rep. 621; Tousey v. Roberts, 114 N. Y. 316; 23 St. Rep. 223; Peil v. Reinhart, 127 N. Y. 381; 38 St. Rep. 913; Morrison v. Metropolitan Telegraph Co., 52 St. Rep. 601. But it is contended by the respondent that the plaintiff assumed any risk that might be caused by the defects and insufficiencies of the approaches and appliances in and about the elevator. It appears by the evidence that she had been for some five months in the employ of the defendant, and had most of that time used the elevated in the morning and evening, as she had occasion to approach and leave the room on the fourth floor, where she was engaged in the performance of her duties for the defendant. Plaintiff testified:

“I knew nothing about the appliances the elevator had or didn’t have to cause it to open or shut. I never saw the door open only when the elevator was there, and somebody there to hold it open. I had never seen it standing open without anybody holding it, as upon this morning.”

In Benzing v. Steinway, 101 N. Y. 547; it was said:

“The risks of the service which a servant assumes in entering the employment of a master are those only which occur after the due performance by the employer'of those duties which the law enjoins upon him.”

Ford v. L. S. & M. S. Railroad Co., 124 N. Y. 493; 36 St. Rep. 494.

The rule is restated in Abel v. D. & H. Canal Co., 128 N. Y. 662; 40 St. Rep. 626; Pantzar v. Mining Co., 99 N. Y. 369; Davidson v. Cornell, 132 N. Y. 234; 43 St. Rep. 887.

In Knisley v. Pratt, 75 Hun, 323; 58 St. Rep. 213, allusion was made to the rule in the following language:

“A servant who enters the employ of a master assumes the risk incident to such employment where the dangerous structures or implements are open and visible and known to him; but in case the employer owes such employe a duty which is not discharged, and is guilty of negligence in not performing such duty, if the injury is the result of such negligence of duty the risk is not one which is assumed by the servant.”

We think it should not be stated, “as matter of law, that, under the facts of the present case, the plaintiff assumed the risk.” Warn v. N. Y. C. & H. R. Railroad Co., 80 Hun, 71; 61 St. Rep. 585.

In Simpson v. N. Y. Rubber Co., 80 Hun, 415; 62 St. Rep. 93, the rule is again stated, and a majority of the court held in that case that a party, “knowing that the machinery is not guarded as prescribed by statute, does not waive the provisions of the statute, nor does he assume such obvious risks as are incident to the use of the machinery without the required safeguards.” In that case the plaintiff knew of the defects, and continued in the employ, and the trial court refused to charge that he waived the provisions of the statute, and assumed such obvious risks as were incident to the use of the machinery in that condition; and a majority of the court, at general term, approved of the refusal to so charge.

In the case in hand the evidence was sufficient to justify the jury in finding that the plaintiff had no knowledge of the defects and insufficiencies in regard to the appliances and surroundings of the elevator in use upon defendant’s premises. Under such circumstances, we think it was error to hold as matter of law, as apparently the trial judge did, that the plaintiff assumed the risks occasioned by such defects and deficiencies.

The case of Cullen v. Norton, 36 St. Rep. 359, differs from the case in hand. There the accident resulted from a negligent act done in the very course of the work, and by a fellow workman of the deceased. The master had provided a competent and experienced foreman, who had been in his employ a number of j'ears, and was not chargeable with the consequences “of a place for work made dangerous only by the carelessness and neglect of a felloy servant.”

We think the nonsuit was erroneously granted. Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.

All concur.