author: Per Curiam : .

text:
    ARCHIBALD McINTYRE, as Assignee of ARTHUR WATERS, etc., Respondent, v. JOHN CARRIERE, Appellant.

      County Court — power of, to redmee the a/movmt claimed in the summons where it exceeds $1,000.
    In an action commenced in a County Court, the summons and complaint demanded judgment for a sum exceeding $1,000. The defendant, after answering generally on the merits, upon the trial moved to dismiss the summons and complaint, on the ground that the court had no jurisdiction over the action. The court thereupon allowed the summons and complaint to he amended so as to demand hut $1,000.
    Upon an appeal from such order, held, that the court had no power to make it, and that it should he reversed. *
    Appeal from an order of the County Court of Albany county, allowing an amendment to the summons and complaint.

      This action was commenced in the Albany County Court on the 7th day of April, 1877, by the service of the summons and complaint on the defendant. An answer upon the merits, containing no allegations as to any want of jurisdiction in the court, was served on the 21st day of May, 1877, and a reply on the 5th day of June, 1877. The action was duly brought to trial on'the first Monday •of January, 1878, and on the case.being called the defendant moved to dismiss the summons and complaint, on the ground that the court had no jurisdiction of the subject-matter, the amount claimed in each being above the constutional limit of the court; this motion was denied, to which denial the defendant duly excepted. The court then on motion of plaintiff’s counsel, defendant’s counsel objecting and excepting, granted an order amending both summons and complaint, by limiting the amount, for which judgment was demanded in each, to $1,000, from which order the defendant appealed to this court.

      Isaac O. Barrett, for the appellant.

      Eugene Burlingame, for the respondent.
   Per Curiam : .

In the case of McDonald v. Truesdail, decided in this court in November, 1876, the plaintiff commenced an action in the Ulster County Court by the service of a summons, without a complaint. The summons was for relief and claimed no sum whatever.

When the complaint was served, it demanded $5,000 damages, in an action of assault and battery. At the commencement of the trial (after objection to the jurisdiction by the defendant), the plaintiff asked leave to amend his complaint by reducing the damages to $1,000, which was granted. A verdict was rendered for the plaintiff, and an appeal was taken from the judgment and from an order denying a new trial. This court affirmed the judgment and order. It will be seen, therefore, that that case differed from the present. There was no appeal from the order allowing an amendment of the complaint. The summons was not amended. By the service of the summons the court acquired jurisdiction, for there was nothing in the summons showing a want of jurisdiction. Having acquired jurisdiction of the action by the service of the summons, the court might amend the complaint or other proceedings.

The difference in the present case is that the summons itself showed a want of jurisdiction. And it is difficult, therefore, to see how the court could acquire jurisdiction of a suit by an amendment, when it had no jurisdiction before the amendment. The question is directly before us on appeal from the order, so that it cannot be said that there was consent or waiver. If (as was stated orally on the argument) the defendant went on to trial, he did so, after making such objection as was in his power. But even the fact of the trial is not on the papers before us. This is not the case of a voluntary appearance, by which the court acquires jurisdiction without the service of process. Here the defendant was brought in compulsorily, and did not waive any of his rights; and, therefore, jurisdiction was acquired, if at all, only by the amendment of the process. And the court had no juritdiction of the action, at the time it made the amendment; therefore the court had no power to amend.

We regret to come to this conclusion because, probably, no actual injustice has been done. But we cannot break through settled and important principles.

The order must be reversed, with ten dollars costs and printing disbursements, and the motion to amend denied.

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

Order reversed, with ten dollars costs and printing disbursements, and motion to amend denied.


source: Caselaw Access Project

author: Bockes, J.:

license: Public Domain

text:
    JACOB P. FINLEY, WILLIAM R. YOUNG, JOHN FINLEY and ROLLIN R. SMITH, Appellants, v. EDWIN G. FAY, Respondent.

      JSale by one partner of his interest to his co-partners — when it releases a debt d/we from him to the firm.

    The plaintiffs and defendant were engaged in business as partners. On September 7, 1876, an agreement was entered into, under the hands and seals of all the partners, whereby the defendant sold and transferred to the other partners “ all his right, title and interest in and to all the assets of the firm,” and the other partners covenanted to save him harmless from all firm debts. At that time the defendant owed the firm §16,000.
    In an action to recover this amount, held, that the purchase by the plaintiffs of defendant’s share operated to discharge him from such claim, and that the action could not be maintained.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      John A. Reynolds and JE. Countryman, for the appellants.

      Turner, Dexter and Van Duzer, for the respondent.
   Bockes, J.:

The conceded facts of the case, briefly stated, are as follows : Prior to and until February 7, 1876, the parties to the action were co-partners in the lumber business, under the firm name of “.Finley, Young & Company,” and on that day the defendant sold out to his co-partners, the plaintiffs, and left the firm. An agreement under seal was made and signed by all the parties, five in number, by which the defendant, for the expressed consideration of one dollar and other good considerations, sold and transferred to his four associates, the plaintiffs, “ all his right, title and interest in and to all the assets of the firm.” At this time the defendant, as is alleged, was indebted to the firm to an amount exceeding $16,000, to recover which amount the four members of the firm, to whom the sale and transfer was made, brought this action. The referee, to whom the action was referred to hear and determine, held and decided that the purchase by the . plaintiffs from the defendant, and his transfer to them, operated to discharge him from the claim in suit, and barred the plaintiffs’ right of action. I am of the opinion that the ruling was correct. The plaintiffs purchased the right and interest of the defendant in the firm, and he transferred such right and interest to them. The language of the transfer is explicit, of all his right, title and interest in and to all the assets of the film of Finley, Young & Company, being the undivided, one-sixth interest.” Now, his right and interest as a member of the firm was what would remain due or belonging to him after all firm creditors wore paid, and the equities between him- and the* other co-partners had been adjusted — that is, what would remain due or belonging to him, more or less, after a complete and perfect accounting in regard to the firm business and affairs. Such accounting would operate as an adjustment of all claims and demands which the firm might have against him. Thus, when the plaintiffs purchased his right and interest in the firm property and effects, it was a purchase subject to such accounting, and the sale and transfer by the defendant of his right, title and interest in the property and effects of the firm carried what rights he had, thus determinable. His sale and transfer to the plaintiffs put them in the exact position he held, as regards the assets of the firm. This position was what the plaintiffs purchased, and was precisely what the defendant sold and transferred to them. They accepted all his rights in the firm property and effects, whether valuable or insignificant, and assumed all his firm obligations; for in another part of the agreement the plaintiffs covenanted to save him harmless from all outstanding indebtedness of the firm. These views are supported to some extent, if not entirely, by the case of Flynn v. Fish (7 Lans., 117), and of Baldwin v. Bald (48 N. Y., 673); also Menagh v. Whitwell (52 N. Y., 158), and cases there cited. An additional argument in favor of the aboYe suggestions may be-based on-the expressed purpose and intent of the parties ; that the-defendant was transferring his “ undivided one-sixth interest” in. the firm property and-effects. His one-sixth interest transferred, to his co-partners was what would remain to him on a complete-adjustment of the partnership affairs, embracing a' settlement of .his individual accounts with the firm.

I am of the opinion that the case was correctly determined by the referee.

Judgment affirmed, with costs.

Learned, P. J. and Boardman, J., concurred.

Judgment affirmed, with costs.


author: Boardman, J.:

text:
    SENECA DENNIS, Respondent, v. JOHN J. SIPPERLY, Appellant.

      Might of way — what, an obstruction of — who responsible for.

    The plaintiff owned a right of way across a farm owned by the defendant. The latter constructed a cider mill abutting upon, and to be reached only from such way. The patrons of the cider mill, with the knowledge and assent of the defendant, stationed their wagons along and across the said way, materially obstructing the same and depriving the plaintiff of his enjoyment and use thereof.
    In an action to recover damages therefor, held, that defendant was responsible for the obstruction occasioned by his customers, and that plaintiff was entitled to recover.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. This action was commenced in a justice’s court, but was removed into the Supreme Court upon a plea of 'title.
    The plaintiff owned a right -of way across a farm occupied and owned by the defendant. The defendant erected a cider hiill upon his land, abutting and opening upon said way. With the permission of the defendant and as customers of his, persons came to the cider mill for the purpose of making cider, and by his direction and permission wrongfully stationed their' wagons, horses and teams •across and upon the said way, and kept them standing thereon, thereby obstructing the plaintiff’s passage over the same. The referee directed judgment for the plaintiff for six cents damages.

      Martin I. Townsend, for the appellant.

      Charles JE. Patterson, for the respondent.
   Boardman, J.:

It is conceded that plaintiff owned a right of way over the premises in question ; that such right of way was obstructed by men, materials, teams and wagons coming to make cider in the defendant’s cider mill abutting upon said way; that such men, teams, etc., were there by the consent and procurement of the defendant for his advantage and profit; that plaintiff was prevented from the free use of said way at times by reason of said obstructions ; that defendant knew of such obstructions and consented thereto. It does not seem important whether the way was public or private. The plaintiff’s right of passage was the same in either case. ' Nor is it material who owned the fee, so long as such ownership is not inconsistent with, and in hostility to the plaintiff’s right of way.

It is not deemed necessary to inquire how far the defendant personally directed or sanctioned the placing of horses, wagons, etc., in the way, whereby the obstructions were created. The defendant by building his cider mill upon this way takes possession of that side of the highway for the pursuit of his business. In the language of Jewett, J., in the People v. Cunningham (1 Den., 534), slightly modified : “ By that act the defendant invites those who wish to make cider to come to that place to do it with such vehicles and teams as were used ; and the effect is to obstruct the street in the manner complained of. This effect was, it seems to me, the probable consequence of the defendant’s acts. The acts of the persons assembling in the street * * * and .conducting * 1/! their teams and wagons in the manner described must be accounted the acts of defendant. He furnished the occasion and gave out the invitation, and no obstruction of this kind would have taken place or would be likely to take place in that street, if the occasion of the assembling of such persons for the object mentioned was removed.” That case arose in the city of Brooklyn where the necessity, so to speak, of occupying the highway was much greater than in a farming locality where abundant room could have been taken out of defendant’s farm for the standing room of teams, wagons and materials. The language of Judge Jewett is, therefore, much stronger when applied to this case, and would leave no doubt that the occupation of this way, in the manner and for the length of time described by the various witnesses, was in violation of plaintiff’s rights, and furnished a good ground for his recovery.

In accordance with these views the referee has found all of the facts heretofore enumerated as conceded, and in addition thereto that such obstructions existed, with the permission and direction of the defendant, given to his customers coming to his cider mill for the purpose of making cider. Such finding, as we have seen, is believed to be justified and supported by the evidence in this case. The plaintiff suffered inconvenience and loss of timó by such obstructions. It would follow that he is entitled to the nominal damages given him.

If, however, we were driven to consider whether the defendant personally directed and permitted the acts complained of, we think the evidence sufficient to establish that fact. The cider mill was his. He furnished no place other than the road for teams, wagons, etc. He knew the business rendered their presence and use necessary. The place was near his house. He knew what was being done, and was in and around the mill “ bossing it,” as one of the witnesses says. It became thus his personal act. It cannot be that a person, for his own convenience and profit, can thus be permitted to obstruct the road for an unreasonable time or in an unreasonable manner.

Upon a review of the whole case we think the judgment should be affirmed, with costs.

Learned, P. J., and Bockes, J., concurred.

Judgment affirmed with costs.


author: Boardman, J. :

text:
    GEORGE J. J. BARBER, Appellant, v. SAMUEL McCLELLAN BARBER and THOMAS D. CHOLLAR, Executors, etc., of JEDIDIAH BARBER, Deceased, Respondents.

      What instrument is a will.

    An instrument duly executed by the deceased, which simply nominates certain persons as executors, and authorizes them to sell real estate, is a will and is entitled to probate as such.
    Appeal from a decree of the surrogate of the county of Cortland, admitting to probate the last will and testament of Jedidiah Barber, deceased. The paper admitted to probate reads as follows: “I, Jedidiah Barber, of the village of Homer, for my last will and testament, as follows:
    “I nominate and appoint Samuel McClelland Barber, Thomas D. Chollar and Robert II. McClellan, executors of this my will, and for the purpose of converting my real estate into money, I authorize and empower them to sell the same.
    “Witness my hand and seal this 21st day of August, A. D. 1874.
    “ JEDIDIAH BARBER.’1
    With the usual attesting clause.
    This paper was presented and admitted to probate as a will of personal estate by the surrogate of Cortland county on the 30th day of June, 1876, and letters testamentary were issued thereon to Thomas D. Chollar and Robert H. McClellan, two of the executors therein named, the third having declined to serve. The petitioner and appellant challenged this will, on the grounds:
    First. That the paper is not a will of personal property.
    Second. That said paper was procured through the fraud and undue influence of others.
    Third. That the testator was incompetent to make a will.

      Geo. K. Kennedy, for the appellant.

      Oliver Porter, for the respondents.
   Boardman, J. :

The instrument in question is a valid will and is entitled to probate as such. Under it the executors take title to property as in ordinary cases. In 3 Redfield on Wills (56, § 15), the author says : “ It is well-settled that a will appointing executors, and containing no disposition of personalty is entitled to probate, whether it contain any disposition of real estate or not; citing In Goods of Jordon (L. R., 1 P. & D., 555; 1 Wins, on Ex’rs, 218 [6th Eng. ed] ; O'Dwyer v. Geare, 1 Sw. & Tr., 465).

Williams on Ex’rs (vol. 1, introd. to book 3, p. 112), says : “The bare nomination of an executor without giving any legacy, or appointing anything to be done by him, is sufficient to make it a will, and as a will it is to be proved.” (Citing Godolphiu Pl., 2, chap. 5, § 1; Swinburne on Wills ; Pl. 4, § 2, p. 2.) The late work of Flood on Wills at page 64 cites the above extract from Williams on Executors as authority, and at page 60, says : “ If a man makes a will, in which he declares himself to die intestate, the paper will operate as a bequest of his property to the persons designated by the statute of distributions.” (Citing Benchley v. Lynn, 2 Robert, 145.) To the same effect is Dayton on Sur. (p. 205, beginning of chapter 3 [3d ed.] ; see, also, 2 Story Eq. Jur., § 1208.)

We find no authority or writer expressing views conflicting with those stated, and hence conclude that the instrument under consideration was a valid will.

It is claimed that the execution of this instrument was procured by undue influence, exercised by William T. Hicock and" others. We have read the testimony and find no satisfactory evidence of that fact. There is evidence tending to show that a large claim is made by Hicock, Barber & Company, against the estate. But the amount of the claim is not shown, nor any fact from which we can say it is false, fraudulent or excessive. Indeed, there is no evidence from which this court can say any wrong has been done to the testator in his lifetime, or any undue or improper influence exerted over him to procure the execution of this will, or any account or claim manufactured against him during his lifetime, or since against his estate. Suspicion is attempted to be excited without adequate proof, because the testator was once esteemed worth |150,000, and at his death was worth little or nothing, and because Hicock, once poor and the confidential clerk of the testator for many years, became the head of the banking house of Hicock, Barber & Company; that Hicock has taken advantage of his opportunities and defrauded the testator of his property. Hence it was claimed such a will was necessary to protect the proceeds of such dishonesty. There may be sufficient to excite suspicion, but it lacks much of creating a belief. Whatever claim may be made by Hickok, Barber & Co. against the estate is the subject of investigation, and it is fair to presume the courts will deal justly by all concerned or interested in the estate.

We think the decree of the surrogate is correct and should be affirmed, with costs of this appeal against the appellant.

Learned, P. J., concurred; Bocees, J. taking no part.

Decree affirmed, with costs against appellant.


text:
    MARIA J. McCARTY, Administratrix of THOMAS McCARTY, Deceased, Appellant. v. PRESIDENT, ETC., OF THE DELAWARE AND HUDSON CANAL COMPANY, Respondent.

      Contributory negligence — when walking on a railroad track, constitutes.

    Plaintiff’s intestate undertook to walk along the defendant’s road, on a switch track from one street to another, in Saratoga Springs, a distance of about 350 feet. "While so doing some cars were switched thereon, came up behind him, struck and killed him.

      Held, that he was guilty of contributory negligence in walking upon the track, and that the plaintiff could not recover.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit, directed at the circuit.

      Putnam & Eustis, for the appellant.

      Henry Smith, for the respondent.
   Boardman, J.:

The deceased undertook to walk upon the defendant’s railroad track, between Washington street and Congress street, in Sara-toga Springs, a distance of about 350 feet. The day was cold and rough, and there was much snow upon the ground. The defendant’s switch track was probably selected by the deceased because the snow had been partially removed thereform and it was easier walking. While passing along such track the employees of defendant switched some cars upon the same track, which came upon deceased from behind, without his knowledge, and he was struck by them and killed. .The plaintiff was non-suited at the close of the case, upon the ground that the deceased was guilty of contributory negligence. There is no conflict in the evidence on this point. I have examined, with care, the many cases cited by plaintiff’s counsel, mostly to be found abstracted in 18 Albany Law Journal (144, 164, 184, 204), etc. Yery few of them have any relation to the facts now under consideration. They generally relate to the degree of care required of passengers at highway crossings or other localities where the injured person might lawfully be or pass. In the present case the deceased was concededly improperly upon the 'defendant’s track in a manner highly dangerous to ,his safety. The law imposes no active duty upon railroad companies towards persons wrongfully upon their track, except to avoid doing an intentional injury. Of course, if, when the danger is known to be imminent, the company could prevent the injury, it is its duty to do so; but such is not this case. (Harty v. Central R. R., 42 N. Y., 468; Nicholson v. Erie R. R. Co., 41 id., 525; Sutton v. N. Y. C., 66 id., 243.) The act of the deceased in using the railroad track to walk a distance of 350 feet from one street to another was gross negligence. But for such negligent act the injury could not have occurred. There is no evidence that defendant’s employees had any notice of the danger until it was too late to avoid it. After the danger was imminent, no care or activity could have avoided the consequences. No recovery can be had for injuries occasioned by another, if the injured party contributed thereto by his own negligence. The negligence of the deceased is apparent and incapable of denial. No reasonable man could doubt it. The use of a railroad track for the purposes of travel is necessarily imprudent, unsafe and very dangerous. Under the facts in this case, the question of contributory negligence was one of law, and we do not think the court below erred in its decision in that respect. (Matze v. N Y. C., 1 Hun, 417; Nicholson v. Erie, supra; Sutton v. N. Y. C., supra.)

The negligence, as well as the unlawful conduct of the deceased, is still further established by the provisions of the statute (Session Laws of 1850, chap. 140, § 44), whereby it is enacted that “it shall not be lawful for any person, other than those connected with or employed upon the railroad, to walk along the track or tracks of any railroad, except where the same shall be laid along public roads or streets.” The deceased was plainly guilty of a violation of this law, and in that respect also chargeable with all the evil consequences of his wrongful conduct.

We think the judgment should be affirmed, with costs.

Bockes, J., concurred; Learned, P. J., taking no part.

Judgment affirmed, with costs.


author: Boaiídman, J.:

text:
    JULIA A. NEWELL, Respondent, v. LOUISA TOLES, Appellant, Impleaded with ADA FIRTH, OWEN PORTER, MALISSA NEWELL and others.

      Residuary clause — when real estate is not covered by.

    A testatrix, after disposing- by her -will of various articles of personal property, and in no way alluding to real estate therein, provided: “ Should my executor find other property belonging to me, not herein anywise disposed of, he may sell the same, and from the proceeds thereof give two-thirds of the same to Louisa Toles and the remainder .to Mrs. Alfred Barnes.” After her death it was found that the testatrix owned certain real estate.

      Held, that the last clause of the will meant other property of the same land as that therein before disposed of, and therefore only related to personal property, and that the real estate passed to her heirs-at-law.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.

      The action was brought to partition certain real estate, situated in the town of Franklin. The question was whether certain' real estate, owned by Lulie S. Porter, deceased, passed under the residuary clause of her will, and not to her heirs-at-law.

      W. H. Johnson, for the appellant Louisa Toles.

      Janas M. Preston, for the respondent.
   Boaiídman, J.:

We have examined this case and the authorities with care. Such examination has convinced us of the correctness of the decision of the court at Special Term. Denio, J. says in Post v. Hover (33 N. Y., 599) “to devise an estate by implication there must be such a strong probability of an intention to give one that the contrary cannot be supposed. * * * Unless it appears upon an examination of the whole will, that such must have been the intention, there is no devise by implication.” The right of the heir is to be preferred to that of the devisee in doubtful cases. The intent to deprive the heir of his inheritance must be clear and unquestionable.

The will of Miss Porter relates wholly to personal property. No specific allusion is made to real estate, nor is any language used denoting the possession by her of any lands. After giving a great many articles of personal property to her different friends and relatives, the will closes by the use of the following language: “Should my executor find other property belonging to me not herein any wise disposed of, he may sell the same and from the proceeds thereof give two-thirds of the same to Louisa Toles and the remainder to Mrs. Alfred Barnes.” Under this provision Louisa Toles claims two-thirds of the real estate or its proceeds. But such claim is unfounded. The words “other property” in the will mean other property of the same kind with that therein disposed of — that is, other personal property. It is probable that Miss Porter was not aware that she was the owner in fee of the reai estate in suit. Otherwise she would have given it more marked consideration than.is implied from the words “ should my executor find other property.” Evidently that language does not apply, or was not intended to apply, to this real estate. The will is confined to personal property. There are no words used indicating an intent to dispose of real estate. The final clause indicates that the testatrix supposes that she has disposed of all the property intended to be willed by her, but if by chance she has overlooked any articles of personal property, they are to be sold and the proceeds divided. The case of Bullard v. Goffe (20 Pick., 252) is quite conclusive. We have examined most of the cases cited in the opinion and by counsel in that case, and they are all in harmony with the decision of the learned judge at Special Term.

The judgment is abundantly sustained by authority, and must be affirmed with costs against the appellant.

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

Judgment affirmed, with costs against the appellant.


text:
    WILLIAM A. CREIGHTON, Respondent, v. THE HOMESTEAD FIRE INSURANCE COMPANY, Appellant.

      Insurable interest — what is.

    One Muffin conveyed certain property owned by him to secure a debt of $1,500, tailing back a lease for eight years, at a rent of $105 per annum, with the privilege of purchasing during the term on payment of $1,500. The premises were worth $3,500. Muffin procured a policy of insurance upon his interest as “ lessee,” the company having notice of his right of redemption. Two months before the expiration of the lease, and while Muffin had not as yet elected to purchase, the premises were destroyed by fire.

      Held, that the right of Muffin to purchase or redeem was insurable and was covered by the policy.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought upon a policy of insurance, issued by the defendant to the plaintiff’s assignor upon his interest as lessee in a bouse at one time owned by Mullin, and conveyed by bim as security for a debt of $1,500. At tbe time of the conveyance be received back a lease for eight years at $105 a year rent, with a right to redeem tbe premises on paying tbe $1,500 during tbe term thereof.

      F. W. Hubbard, for tbe appellant.
    Gilbert, Badger & Wead, for tbe respondent.
   Boardman, J. :

Mullin, the plaintiff’s assignor, procured the pobcy of insurance upon bis interest as lessee in the bouse burned. At the time when the policy was procured the subagent of the company was fully informed of the nature of the lease, and of the extent of Mullin’s ■interest under it. Berry, the subagent, was acting for Clark, the general agent. Berry is dead. Clark testifies that be understood the premises were held by Mullin under a redemption lease. Berry reported the risk to Clark, who issued the policy. No application was made or signed by Mullin. Under the lease Mullin bad the right to the premises for eight years on payment of $105 per annum, and in addition be bad the right to purchase the premises for $1,500. It appears that Mubin bad formerly owned the premises, and bad conveyed them as a security for this $1,500, and taken back the lease, with the option to redeem or purchase. The value of the premises at the time of the fire was $3,500. So there was an excess of value in the premises above the $1,500 of $2,000, which Mullin by bis contract might become the owner of. Hence the value of Mubin’s privilege was $2,000, if be elected to take advantage of it and paid the $1,500. the referee has found that this privilege was a part of Mubin’s interest, covered and insured by the policy. Such finding is sustained by the evidence and will be conclusive, unless the evidence by which it was established was improperly admitted.

Tbe evidence so objected to was given by Mr. and Mrs. Mubin, and shows what was said and done at tbe time Berry took tbe appbeation for tbe insurance. All of this evidence tends to show that Berry bad knowledge of tbe nature and extent of Mubin’s interests in the property intended to be insured. Extrinsic evidence may always be given for this purpose, when the words used in the policy are equivocal or doubtful. (Clinton v. Hope Ins. Co., 51 Barb., 647; affirmed in Ct. of App., 45 N. Y., 454, and cases cited.) The word used “lessee” indicated, perhaps, sufficiently that it was the intent to insure whatever interest Mullin had under his lease, but the character and extent of such interest as made known to Berry was competent evidence, in connection with other facts, to show the purpose and intent of the contracting parties.

The deed from Mullin and wife to Webster was admissible for the same reason, and for the further reason that it was necessary to identify the property insured.

The proof given by Clark on his cross-examination, of his knowledge or understanding of the nature of Mullin’s interest, was admissible. It was evidence of notice to the defendant’s general agent. The defendant cannot avoid its obligation under its policy, if issued with full knowledge of all the facts, and the ■knowledge of the agent is the knowledge of the company.

But the more seriously contested proposition relates to the right of plaintiff to recover beyond the two months’ rental value of the premises burned. Mullin had not paid the $1,500 or any part thereof. But two months of his term remained at the time of the fire. Within that time he had the right to pay his $1,500 and demand his deed. It is possible he would not do so, in which case all his interest would cease. Was this option to pay and take title, while wholly unexecuted, an insurable interest ? The referee found and held that it was. If a creditor of Mullin had procured the appointment of a receiver of his property, would not such receiver have had the power to pay the $1,500 and demand a deed of the property worth $3,500 ? If necessary, would not a court of equity have enforced a specific performance in favor of such receiver ? We think such would have been the right of the receiver and the duty of the court. If this be true, the case is brought within the principles laid down in Cone v. Niagara Ins. Co. (60 N. Y., 619, 621) and cases cited; Rohrbach v. Germania Ins. Co. (62 id., 47) and cases cited. Indeed, under the last case cited, Mullin had an insurable interest, whether our views of the rights of a receiver of Mullin’s property are just or not. We conclude, therefore, that Mullin has a pecuniary interest in the preservation of the property and might suffer a loss by its destruction. This constituted within the cases an insurable interest. The judgment is therefore affirmed, with costs.

LeauNed. P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


text:
    HARRIET M. ELMENDORF, Respondent, v. THE CITY OF ALBANY, Appellant.

      Turnpike — right of a city to lay sidewalks on, and collect the expense thereof by assessment.

    "Where the charter of a municipal corporation authorizes it to repair the streets and sidewalks thereof, and collect the amount by assessment, it may cause repairs to be made to a sidewalk along and upon land owned by a turnpike road within the limits of the city, and may assess the expense thereof upon the owners of the lands abutting thereon.
    Appeal from a judgment in favor of the plaintiff, entered upon . the trial of this action by the court without a jury.
    /S’. W. Rosendale, for the appellant.

      Edward J. Meegan and John M. Kimball, for the respondent.
   Boardman, J. :

By the Laws of 1870, chapter 139, the boundaries of the city of Albany were extended so as to include about one mile of the Albany and Bethlehem Turnpike Company’s road. On this piece of road the plaintiff resided and still resides. It is conceded that the turnpike road is private property, in the sense that it is absolutely owned and maintained by the company, and tolls charged for passing over it. It was chartered by the Legislature in 1804. In pursuance of the provisions of its charter the defendant caused certain repairs to be made to sidewalks along this turnpike road, and along lands of the plaintiff abutting upon said turnpike, and an assessment therefor was made against the plaintiff for $70.93. The plaintiff thereupon brought this action to set aside such assessment, and to enjoin the defendant from enforcing it. The foundation of the action is placed upon the fact that the turnpike road is private property, and that the city has no legal right to make improvements upon private property. Hence it is claimed its action is illegal and void. If this road is private property, and not one of the streets of the' city of Albany, the defendant had no right to enter upon it for the purpose of constructing sidewalks or other public improvements. If it is not private property, or is a street of said city, the action of the city officers was right, and this action cannot be maintained. (In re Rhinelander, 68 N. Y., 105.)

In a certain sense the Albany and Bethlehem turnpike road was private property. The company, we may fairly infer, was the absolute owner of the roadway. It maintained the road, and charged to, and received tolls from, such persons as passed over it. Its franchise was derived from the State, and was exclusive within its limits. But, in the language of the chancellor, in Rogers v. Bradshaw (20 Johns., 742), “ a turnpike is a public road or highway, in the popular and ordinary sense of the words ; and in that sense the Legislature are to be presumed to have employed them. Turnpike roads are in point of fact the most public roads or highways that are known to exist, and in point of law they are made entirely for the public use.” * * * Again, “there is nothing, therefore, in a turnpike road that should exempt it from coming under the description of a public road or highway.” This language was used when the Legislature had authorized commissioners to discontinue or alter any part of a public road or highway. By vii’tue of such power they discontinued a portion of a turnpike company’s road and located it elsewhere. It is true a great public work was the occasion for this action. Still it was a delegation by the Legislature .to special officers of a power, the exercise of which, in the manner stated, was held to be legal and proper.

In the present case the Legislature gave to the municipal authorities a similiar power which has beeu exercised with little, if any, interference with the rights of the turnpike company for the public benefit. In Quinn v. City of Paterson (27 N. J. Law R., 35) a different opinion is intimated. But an examination of the case shows the injury complained of was done outside ■of the turnpike property, and on the private grounds' of the owner. In State v. City of New Brunswick (1 Vroom. [N. J.] R., 395), the right of the defendant to make the improvement upon the property of the turnpike company, and assess- the expense thereof, is fully sustained. This case upon appeal was affirmed in 3 Vrooman, 548, Chief Justice Beaseley taking the same view of the rights of the city with the court below. But the case can hardly be ■considered an authority, since the decision was finally put upon the conceded fact that the avenue in question was one “of the public recognized streets of said city.” It was thereby brought within those cases in which the public street antedated the turnpike or plank-road company, and the latter only obtained a qualified easement in the street. (Bagg v. Detroit. 5 Mich., 337; Walker v. Caywood, 31 N. Y., 51.)

It would seem, therefore, upon authority, that the acts of the defendant in this case were legal and valid. But upon principle it is equally conclusive. The charter of a turnpike road is for the public use and benefit. Though the company may acquire title to the soil, it is not an exclusive right. It is subordinate to public rights for all purposes not' inconsistent with its general ownership and franchise. The rights of foot passengers are as much entitled to consideration as those of carriages. The public welfare may require provision to be made, and so long as this may be done without injury to the private rights of the turnpike, it is lawful atid proper. The authority given by the defendant’s ■charter is to be exercised for the public good. Every reason may exist why it should be exercised in the present instance, as well ns in other clear cases. The duties of the turnpike company relate specially to the road-bed. They owe no duties to the public in respect to sidewalks for foot passengers.

Under such a .state of facts there is no inconsistency in the .action of the two corporations. A road made for the use of, and used by the public is made still further useful by the aid of sidewalks. The Legislature, by the general authority given in defendant’s charter, has permitted the defendant to make such improvements in' all of the streets in the city. By the samo authority water and gas-pipes are laid down in the street in question. Residences are built upon it. In all respects, except tolls, it is used and enjoyed by the publicas are other streets. Nor does there seem to be any reason in the principles of law, or. in common sense, why the defendant may not exercise all the powers conferred upon it for the public good over this turnpike, not inconsistent with its private property in the road-bed and its franchise to take tolls. The easement or right of way is of a public character, and to the extent that it is public may be improved at the expense of adjoining owners in the same maimer as any other public streets of the city.

For these reasons, we think the judgment should be reversed and a new trial granted; costs to abide the event.

LeaRNed, P. J., and Bocees, J., concurred.

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


author: Per Curiam:

text:
    EDWARD D. ROE, Appellant, v. FREDERICK BARKER and others, Respondents.

      Contract of sale of land — agreement by assignee of the vendee to pay the vender — not enforceable by the latter, when the assignment is only collateral to a debt.

    Plaintiff contracted to sell a lot to one Hammett for $1,350 ; $300 to be paid in cash, and the balance in five equal annual installments, with interest. The cash payment was made and the first year’s interest was paid. Thereafter Hammed assigned the contract to defendants in payment of an existing debt, and for an advance then made, reserving the right to redeem on payment of the amount due. The defendants, at the time of such assignment, agreed therein to pay the amount due on the contract to plaintiff.
    In an action to recover the amount due, Hammell not having redeemed, held, that the assignment being a conditional one, the defendants Vere not liable to .the plaintiff therefor.

      Motion for a new trial on a case and exceptions, ordered to be heard in the first instance at the General Term, after a nonsuit directed at the circuit.
    October 15, 1873, the plaintiff sold to one Hammell, by written agreement, a lot situate in Elmira, for the sum of $1,350. $300 was paid at the date of the agreement, and the balance was to be paid in five equal annual payments, with interest annually thereafter. The first year’s interest, $73.50, was paid October 15, 1874. On the 9th of June, 1875, Hammell was indebted to the defendants in the sum of about $200, and in consideration of the sum of $300 to be paid to Hammell by the liquidation of Hammell’s indebtedness, and by his trading the balance out of defendants’ store, and the defendants agreement to pay the balance unpaid on said contract, he sold and assigned to them all his title and interest therein. At the time of this sale it was verbally agreed between Hammell and the defendants that if Hammell got able he might redeem the premises, by his paying to them all they had paid. No time was fixed, in which he had this privilege. October 15, 1875, a second payment became due, and Hammell'testified that soon thereafter Rose, one of the defendants, requested him to see the plaintiff and get the time extended until April first thereafter, promising that if this was done, the defendants would then meet the obligations of the contract without fail, and in addition would pay the plaintiff' interest from said October fifteenth on the moneys then due. At this time Hammell told Rose, hi answer to a question to that effect, that he did not think he would be able to take the contract back. Hammell did not redeem. This action was brought to recover the two payments, amounting to $420 ($210 each), the last one falling due October 15, 1875, with the interest thereon. At the close of plaintiff’s evidence he was nonsuited, upon the ground “ that the right to redeem the contract, which was reserved by the assignor' (Hammell), rendered the assignment conditional and not absolute,” and that by reason thereof the plaintiff could not recover.

      John T. Davidson, for the appellant.

      J. R. Ward, the respondents.
   Per Curiam:

Where a promise is made to one to pay money to another, and the latter has been allowed to recover thereon, it has usually been on the theory of a quasi equitable assignment by the promisee to the party interested. As the promisee might transfer, and in some cases ought to transfer, the claim on the promise to the party in interest; therefore, it has been held, in certain cases, that the party interested may have the same rights as if the promisee had in fact transferred to him, as he ought to have done. That is to say, the party interested, when he can recover on the promise, must do so as holder of the promisee’s rights, and therefore must be subject to all the equities which exist against the promisee.

In this present case Hammell assigned the contract, really as. security for a debt, which he owed to the defendants. He retained a right to redeem. Hence the agreement by the defendants to pay was only an agreement to advance an installment on the contract, which would have to be repaid by Hammell. It could not be that, the defendants were to jiay the installment, leaving Hammell a right, to redeem, without repaying also the money which should be thus, advanced.

Allowing the plaintiff then to stand in Hammell’s place, and thus to have the benefit of the agreement, he would take only such rights as Hammell had. And these, at the best, included only a. right that the defendants should advance the installment, which advance being for Hammell’s benefit should be repaid to him by Hammell.

Thus the case is very different from one where such a contract is-assigned absolutely, and the assignee, in order to protect the assignor against future liability, promises that he will himself pay all future installments. In that case the neglect to pay would give an absolute right of action by the assignor against the. assignee, with no liability afterwards to refund. And on that, ground it has been thought equitable, that the party to whom the money is to be paid should have a right of action, as it were, by an equitable assignment thereof. (Garnsey v. Rogers, 47 N. Y., 237.)

Judgment should be ordered on the nonsuit for defendants, with, costs.

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

Judgment ordered on nonsuit for defendants, and motion for new trial denied, with costs.


author: LEARNED, P. J.:

text:
    AUGUSTUS BOCKES, Trustee, etc., Plaintiff, v. HENRY H. HATHORN and others, Defendants. CHAUNCEY KILMER, Trustee, etc., Plaintiff, v. HENRY H. HATHORN and others, Defendants.

      Action of foreclosure — extra allowances in— Code, § 309, as amended by chapter 431o/1876.
    Where an action upon a bond, and to foreclose a mortgage collateral thereto, is difficult and extraordinary, and a defence has been interposed or a trial had, an allowance may be made under section 309 of the Code, as amended by chapter 431 of 1876, to any party, not exceeding five per cent or $2,000. Hunt v. Chapman (62 ÍT. Y., 333), distinguished.
    Appeal from an order denying a motion to vacate an order, granting extra allowances to the parties to the above entitled actions.
    The first action was brought to foreclose a mortgage, held by the plaintiff and others as trustees. After its commencement the second action was commenced by one of the other trustees to foreclose the same mortgage, and for certain other relief. To this second action the first plaintiff was made defendant. Both of these actions were referred, after issue joined, to the same referee, and were tried together. The referee reported in favor of the foreclosure, and on the other questions presented. The report wras not contained in the appeal papers; but from the judgment it appears that he awarded costs to Augustus Boches, trustee, the plaintiff* in the first action, also to Kilmer and Deuel his co-trustees, who were defendants in that action, and one of whom was plaintiff* in the second action; also to Clement, a subsequent grantee, and the trustees of a second mortgage, and to Hays and Lester, defendants in both actions. A motion was thereupon made for an extra allowance, and an order was granted, which does not show who was the moving or opposing party, granting $2,000 to the attorney of A. Bockes, trustee; $3,000 to the attorney for Kilmer and Deuel, trustees; and $2,000 to the attorney for Clement, and for Hays and Lester, trustees, with ten dollars cqsts of motion to each ’"of these three parties. Affidavits now produced show that, on the application for an extra allowance, no affidavits were used, and that the verbal statements of counsel were accepted ; and further that the allowances thus made were made by the consent of the attorneys for the several parties. And it is stated, by the learned justice who granted the order, in his opinion, that the order was made by the consent of attorneys solely. This order was granted December 4, 1877.
    The attorney for Kilmer and Deuel in the first action, and for Kilmer in the second subsequently moved, in June, 1878, to set aside and vacate this order, on the ground that the amount exceeds that allowed by the statute ; that no extra allowance was proper, and that there was no evidence before the court. That motion the Special Term denied as to the allowances to Bockes, Clement, Hayes and Lester ; and on the motion and consent of the moving party, reduced the allowance to Kilmer and Deuel from $3,000 to $400. Kilmer and Deuel appeal from the whole of that order.

      A. Pond, for the appellants.

      O. 8. Lester, for the respondents.
   LEARNED, P. J.:

The learned justice who granted the order now appealed from, in a carefully considered opinion, came to the conclusion that, as these allowances were made by the consent of parties, it was not proper for the Special Term to set aside the order. In regard, however, to Kilmer and Deuel he held that the motion was a waiver, and, therefore, the order might be modified as to them.

Much of the difficulty which has arisen in these cases has come from the improper practice of bringing a second action of foreclosure, while one was pending. The main questions involved grew out of the distribution of the funds to be made by the trustees after a foreclosure and sale. They were not questions properly belonging to the issues in the action of foreclosure ; but they should have been raised on a reference (if necessary), for the distribution of the avails of the sale. And it would perhaps have been just for the referee to give to the defendants in the second action costs against the plaintiff therein personally. But in fact the judgment has given costs to be paid out of the fund.

The first question is, whether any relief can be granted. As a rule, parties are bound by the stipulations of attorneys. But certainly an allowance cannot be taken out of the funds of clients by the mere stipulation of attorneys, without any regard to the statute.

Suppose, instead of allowances amounting to $7,000, the attorneys had agreed upon allowances amounting to $70,000, would the court be powerless to protect the clients ? Furthermore, in this case, the parties do not represent property of their own. They are trustees ; and these allowances come out of the funds of cestui qui trusts, who are not in person represented. We think it is clearly in the power of the court to correct this order, if it be wrong. The order granting the allowances in fact expressed no judicial action.

Second. As to the allowance to the attorney for the plaintiff in the first action, the question before us is practically not very material. As between attorney and client, the plaintiff in the first action would undoubtedly be justified in paying to his attorney a reasonable counsel fee, and in charging that to the fimd. And it would be improper for us to say that the amount awarded, as an extra allowance, would not be a proper amount to be charged, as between attorney and client, and to be deducted by the trustee from the trust funds. No facts are before us, in this view of the matter. As an extra allowance the charge would come out of the subsequent incumbrances, or the owner of the equity of redemption. As a charge between attorney and client it would come out of the trust fund. And it is only in this view that the legality of that allowance, in its present form, would be important.

Third. As to the extra allowance awarded to the trustees Kilmer and Deuel, their attorney insisted, in the court below, that these, as well as the other allowances, were improper. He was right as to the allowances to these trustees. Whether these trustees have rightfully, any claim for counsel fees, as against the trust, is not necessarily involved in this present question. But the costs in this case (and of course this includes the alknvances), as in ordinary cases of foreclosure, increase the amount to be recovered against the owner by a sale of the premises. And we see nothing, either in the defence set up in the first -suit, or in the complaint of Kilmer in the second suit, which justifies an extra allowance against the owners. The motion of Kilmer and Deuel, therefore, to set aside the allowance made to them should be granted.

Fourth. What extra allowance can be granted ? Section 309, as amended by chapter 431, Laws of 1876, permits an allowance in difficult and extraordinary cases, where a defence has been interposed, or a trial has been had, to any party, not exceeding five per cent. It also permits in an action for a foreclosure of a mortgage a like allowance not exceeding two and one-half per cent, and not exceeding $200 in the aggregate. If an action then is brought on a bond, and it is a difficult and extraordinary case, and a trial is had, the court may allow five per cent on the recovery. Could the Legislature have intended that, if the bond were secured by a mortgage, and the case were equally difficult and extraordinary, and a trial had been had, the same rate of allowance could not be granted ? The section does not say, in a difficult and extraordinary action for the foreclosure of a mortgage when a trial has been had; but it says, in an action — that is, in any action for the foreclosure of a mortgage. And the word “ like” before allowance refers to the word “further” in the proceeding sentence. The Legislature have now shown that this allowance of two and one-half per cent does not depend on the difficulty of the action, or on the fact of a trial being had, by limiting its extent to $200. While the general limitation made applicable to difficult and litigated cases is $2,000. We are aware of the decision in Hunt v. Chapman (62 N. Y., 333). But the amendment of 1876, made since that decision has, we think, explained the meaning of the Legislature. If the allowance of two and one-half per cent in foreclosure actions could be made only where such actions were difficult and litigated, while five per cent might be allowed in other difficult and litigated cases; then the limitation of the allowance in foreclosure would have been put at $1,000, not at $200.

The Legislature limited the allowance to $200, because that allowance did not apply exclusively to litigated and difficult actions. The Legislature could not have meant that in difficult and extraordinary litigated cases, other than foreclosure actions, $2,000 on a side might be allowed; while in equally difficult and extraordinary litigated actions of foreclosure only $200 could be allowed in the aggregate. There would be no sense in the distribution.

Fifth. In regard to the defendants Clement, Hays and C. C. Lester, it appears that the complaint demanded a judgment for deficiency against Clement. He defended and was successful. It is stated, too, that the amount claimed in the complaint to be due on the mortgage was reduced, on the trial, $100,000. The referee allowed costs to Clement and to Hays and C. C. Lester, trustees of a second mortgage. We think, therefore, that nothing is shown why the allowance to these parties should be reduced.

Sixth. Some objection is made that the allowances are in form to the attorneys and not to the parties ; but that is corrected in the judgment, or may be now corrected, if necessary.

Our conclusion is, that the allowance of $2,000 to A. Bockes, plaintiff in the first suit, and of $2,000 to Clement, Hays and C. C. Lester, defendants in that suit, should be affirmed, ancl that the allowance of $400 to Kilmer and Deuel should be reversed, and that there should be no costs of appeal.

Present — -LearNED, P. J., and BoakdmaN, J.; Bockes J., taking no part.

Allowance of $400 to Kilmer and Deuel reversed, and allowance to Bockes and to Hays and Lester affirmed, without costs of appeal.


author: Learned, P. J.:

text:
    HAMILTON S. PRESTON, Responded, v. ALONZO C. YATES and THEODORE DISSELL, Appellants.

      Bond to secure a sheriff— when the obligor is entitled to appoint an attorney to defend an action brought against the sheriff.

    The sheriff having’ levied upon certain property under an execution, and a claim being made thereto by a third person, the judgment-creditors, on the sheriff’s demand, executed to him a bond of indemnity, which provided that, in case any suit should be brought against the sheriff, they should be notified and permitted to defend it. An action having been brought against the sheriff, he notified the indemnitors, who requested him to send the papers to a certain attorney and allow him to defend. This he did not do, but appeared by an attorney of his own selection, who informed defendants that there could be but one attorney, but that they might employ special counsel. The sheriff, having been unsuccessful, brought this action on the bond.

      Held, that as the sheriff had not allowed defendants to appoint an attorney to conduct the action, he had failed to comply with the terms of the bond and could not recover thereon.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    The action was brought to recover on a bond of indemnity, executed by the defendants to the plaintiff, a sheriff. The bond recites a judgment and execution in favor of A. C. Yates & Co., the present defendants, against one Powell, and stated that certain goods which appeared to belong to Powéll, and which had been levied upon under said judgment, were claimed by another person. It then contained an agreement to indemnify the sheriff’ and also a clause as follows: “It being understood * * that in case any suit shall bo brought therefor against said sheriff that said A. C. Yates & Co. shall be notified and permitted to defend the same.”
    An action was brought against the sheriff. He notified A. C. Yates & Co., the defendants above-named, and asked what they desired. They at once requested him to send the papers to certain attorneys named by them, and to permit these attorneys to defend. • The sheriff did not do this, but retained an attorney of his own selection, who informed these defendants that they would be allowed to defend. Afterwards the attorney retained by the sheriff informed these defendants that there could be but one attorney in the action, and that if they desired to engage special counsel he would confer with them. On this, these defendants notified the sheriff that if he desired to hold them liable on their bond, he must permit a substitution of the attorneys they had named; and that if he neglected to do this, they should consider themselves discharged from liability. No response was made. The sheriff defended by his own attorney and was unsuccessful. The complaint in the present action alleged a general agreement to indemnify, but did not allege the bond. The answer sets up the bond and the violation of its condition; and the bond was proved on the trial.

      Wm. C. Huger, for the appellants.
    A person executing any species of security, either as principal or surety, can stipulate that his liability upon the instrument shall depend upon the performance of conditions precedent to its accrual, and in such a case the liability is not complete until all the conditions precedent have been fulfilled, and such stipulations are sustained by the court. (De Colyar on Guaranties, 220; Biworthy v. Maunder, 2 Moore & Payne, 482; Hemming v.. Trenery, 2 Cromp., Mees & Rose., 385; Thomas v. HubbeTl, 15 N. Y., 407; Bridgeport Ins. (Jo. v. Wilson, 34 id., 278, 281; Birles v. Trippet, 1 Saund., 32; see Banks v. Thwaits, 3 Leonard, 73; Bstrigge and Owle’s Case, id., 200; Peck v. Metholed, 3 Bulstrode; Douglass v. Howland, 24 Wend., 35; Giles v. Crosby, 5 Bosw., 389.) After notice the indemnitors were the real parties in interest, and entitled to conduct the defence. (Beers v. Pinney, 12 Wend., 309; Miller, Justice, in Howell v. Christy, 3 Lans., 241.)

      C. H. Bell and Jonas M. Preston, for the respondent.
   Learned, P. J.:

The learned justice who tried the action properly held that the contract between the parties was embodied in the writing, executed by the defendants and delivered to the plaintiff. They must recover, if at all, on the bond. And the parties to the bond had a right to put into it such lawful conditions as they chose. They chose to make it one of the conditions that the present defendants should be permitted to defend any action brought against the sheriff for his acts touching the levy, etc. Those words must have been intended to have some meaning. I think the meaning is well known. To defend a suit brought against another is to control the defence. And the first and important part of such control is the designation of the attorney. The person who does not designate and appoint the attorney cannot control his acts. And if he cannot control the attorney’s acts he cannot control the defence. The privilege of employing special counsel, which was offered to the defendants, was valueless. The sheriff’s attorney would not have been obliged to follow the advice of such counsel. If the language of the bond had been that, in case of a suit against the sheriff, the indemnitors might employ counsel and give advice, the plaintiff’s position would be more tenable than it now is. I think, therefore, that the sheriff refused to permit these defendants to defend the action. He, therefore, broke the condition and cannot recover’ on the boud.

The case of Peck v. Acker (20 Wend., 605), cited by the plaintiff, does not apply. It does not appear that the bond in that case contained any such condition as that above set forth. The only point decided was that on special motion the court could not substitute for the attorney selected by the sheriff one named by the indemnitors. The bond in the present case may have been intended, by this express condition, to secure a right, which the indemnitors would not otherwise have had. It may have been injudicious for the sheriff to accept a bond with such a condition, especially if there were .other bonds of indemnity given. But with this we have nothing to do. There are some other questions of importance which it is not necessary to examine. The judgment must be reversed, and a new trial granted, costs to abide the event.

Present — LeakNed, P. J., BoakdMAN and Bocees, JJ.

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


text:
    LUCIAN W. PATRIDGE, Respondent, v. THE COMMERCIAL FIRE INSURANCE COMPANY, Appellant.

      Policy of insurance — when knowledge of agent imputed to company — construction of clause making onepi'ocurmg the inswa/nce the agent of the assured.

    The plaintiff applied for insurance on certain real estate to one Clark, an agent of the defendant, telling him that he wanted to insure his interest therein, and showing him a contract for the purchase thereof by him. Clark made out the application on a form furnished by the defendant through insurance brokers in New York. He received the policy from the company through them, delivered it to the plaintiff and received the premium. An action on the policy was defended, on the ground that the interest of the assured was not expressed in the policy, as was thereby required when it was other than the entire unconditional and sole ownership of the property.

      Held, that Clark was the agent of the company, and that it was bound by his knowledge and acts, despite a clause in the policy providing that any person, other than the assured, who procured the insurance was to be deemed the agent of the assured and not of the company.
    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 upon a policy of insurance issued by the defendant to the plaintiff. The defences were that the plaintiff had not furnished proof of loss ; that his interest, which was under a contract of purchase, was not expressed in the policy as required thereby, and that the policy was avoided by reason of increased risk, caused by the occupation of the property as a tavern and public stable.

      William A. Goursen, and Waldo & Grover, for the appellant.

      Hale, Smith & Hale, for the respondent.
   Learned, P. J.:

There were facts sufficient to submit to the jury the question as to the waiver of proofs of loss. An adjuster, sent by the company, was on the premises soon after the fire occurred. Enough was shown to have taken place then to justify the jury in their conclusions on this point. Afterwards proofs of loss were offered by the plaintiff, if the company desired them, and an explanation was given them that tbe delay was occasioned by the acts of their agent. Their conduct in this particular was at least unfair, not to say tricky.

The defendants moved for a nonsuit, on the ground that the plaintiff kept a tavern and public stable, in violation of the terms of the policy. This also was upon the evidence a question of fact. ¥e cannot say that, as a question of law, the evidence showed that the plaintiff kept a tavern. He had taken down his sign and had no license. He sometimes entertained travelers, but only such as he chose, and he turned away those whom he did not chose to take. Clark, the agent, had been at the house several times and knew about the entertaining of travelers. No exception was taken to the charge or to the language in which this question was submitted. n

The defendant also moved for a nonsuit, on the ground that by the terms of the policy, if the interest of the assured be other than the entire unconditional and sole ownership of the property, it must be so represented to the company, and so expressed in the written part of the policy, otherwise the policy shall be void; and that the proof showed that the plaintiff had only a contract interest in the premises. The policy expressly refers to the plaintiff’s application on file in the defendants office. This application was made by Clark, the agent of the defendants. When the plaintiff applied to Clark for insurance, he said that he wanted to insure his interest, and he showed Clark the contract. Clark took the application on a form sent to him from the defendants office for that purpose, through a firm of insurance brokers in New York. He received the policy from the company through these brokers, delivered it to the plaintiff and received the premium. The plaintiff had no actual knowledge of the finely printed clause relied upon. The defendants did not produce the application on the trial. It is plain that Clark acted for the defendants. The policy was within their control until he delivered it to the plaintiff. He was not employed by the plaintiff; but was the party to whom, as an insurance agent, the plaintiff applied. It is true that the policy contains that common provision that any person, other than the assured, who may have procured the insurance is to be deemed an agent of the assured, and not of the company. This is a provision which deserves the condemnation of courts, whenever it is relied upon to work out a fraud, as it is in this case. The policy might as well say that the president of the company should be deemed the president of the assured; as to say that the man who does what Clark did is to be deemed the agent of the assured. Such a clause is no part of a contract. It is an attempt to reverse the law of agency, and to declare that a party is not bound by his agent’s acts. Whether one is an agent of another is a question of mixed law and fact, depending on the authority given expressly or impliedly. And when a contract is, in fact, made through the agent of a party, the acts of that agent in that respect are binding on "his principal. If it is necessary to give any construction to such a clause, then it might be construed that in fact Clark was, in the respect, the company ; and that the assured himself procured the insurance to be taken by the company, just as if he had gone to their other agents, the president or secretary. For if the plaintiff had shown his contract to the secretary of the company, could the company have insisted that the secretary was the plaintiff’s agent ? And what is the secretary but an agent of the company ? It is a familiar rule that corporations act through ageiits. If by means of this clause the company can disavow the agency of one agent, why not of another ? The latest authority admits that the decisions are conflicting, but favors the view here expressed. ( Van Schoick v. Niagara Fire Ins. Co., 68 N. Y., 434.)

The defendant objects that the plaintiff was allowed to prove that he told people, who put up at his house, that he did not keep a hotel. This was conversation characterizing his act, and was proper, to show in what way he received his guests.

The offer by the defendants to show that the plaintiff said, when he bought the property, that he intended to keep a hotel, did not tend to show what he, in fact, did, and was properly excluded.

The judgment and order should be affirmed, with costs.

Present — LearNed, P. J., BoaremaN and Bocees, JJ.

Judgment and order affirmed, with costs.


author: Learned, P. J. :

text:
    ANN E. WHITE, Executrix, Etc., of NATHANIEL GALLUP, Deceased, Respondent, v. THE ALBANY RAILWAY, Appellant.
    Lease— covenant to repair — when it does not compel a tenant to put the demised, premises in repair.

    Prior to April 9, 1868, the defendant was in possession of certain premises as tenant of the plaintiff’s testator The premises were then out of repair. On that day the plaintiff’s testator leased the premises to the defendant for two years from May 1, 1868. The instrument executed by defendant provided that the lease was “ at the yearly rent of $1,000, payable quarterly, and the ordinary taxes and water rates, and repairs necessary, with all alterations, if any needed.” That executed by the lessor read: “At the yearly rent of $1,000, payable quarterly, and the ordinary taxes and water rates, and all repairs or alterations necessary.” There was the usual agreement “to surrender the premises * * in as good state and condition as reasonable use and wear will permit, damages by the elements excepted.”

      Held, that the defendant was not obliged to put the premises in good repair, or make any repairs or alterations thereon not necessary for its use of the premises.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought by Nathaniel Gallup, in his lifetime to recover from the defendant the rent due upon a lease from him to the defendant, bearing date April 9, 1868, for the term of two years, commencing May 1, 1868. On his death his personal represented was substituted as a party plaintiff.
    The portions of the lease essential to the decision of this case were those relating to repairs; they were as follows : In the instrument executed by the defendant, “ at the yearly rent of $1,000, ■payable quarterly, and the ordinary taxes and water rates and repairs necessary with all alterations, if any needed.” In the instrument executed by the plaintiff, “ at the yearly rent of $1,000, payable quarterly, and the ordinary taxes and water rates, and all repairs or alterations necessary.” The lease also contained an agreement by the lessee “ to surrender the premises * * * in. as good state and condition as reasonable use and wear will permit, damages by the elements excepted.”
    The action was commenced after the term mentioned in the lease had expired, to recover for the quarter’s rent falling due February 1, 1870, and for that falling due May 1, 1870, for the taxes and water rates which became due December, 1869, which, the defendant having failed to pay, the plaintiff had paid upon the warrants issued to collect the same ; and the cost of the necessary repairs which it was alleged the defendant failed to make in accordance with the term of the lease, and damages resulting from such failure. The defendant made only such repairs as they wished for their own convenience.

      Matthew Hále, for the appellant.

      G. L. Steelman, for the respondent.
    The covenant of the defendant was satisfied by keeping the demised premises in as good condition as they were in at the beginning of the term, and surrendering them at its expiration in such condition as reasonable use and wear would permit, damages by the elements excepted. It is evident that the “ necessity ” referred to was the necessity of the lessee. (Taylor’s Land. & Ten., § 358; Guiteridge v. Manyará, 7 C. & P., 129; S. O., 1 M. & Rob., 334; Harris v. Jones, id., 173, 175; West v. Hart, 7 J. J. Marsh, 258; Bally. Wyeth, 8 Allen, 275; Lochrovj v. Horgan, 58 N. Y., 635.)
   Learned, P. J. :

The principal question is on the meaning of a clause in the lease. The lease is in the form of a landlord and tenant’s agreement. The agreement signed by the defendant states that the rent is “$1,000, payable quarterly, and the ordinary taxes and water rents and repairs necessary with all alterations, if any needed.” There is the usual agreement to “ surrender the premises * * * in as good state and condition as reasonable use and wear will permit, damages by the elements excepted.” The landlord’s agreement states the rent at “ $1,000, payable quarterly, and the ordinary taxes and water rents and all repairs or alterations necessary.” It is plain, then, that the defendant was to pay for “ necessary repairs.” The defendant claims that this means only such repairs as the defendant should find to be necessary. The plaintiff claims that this means all the repairs which the premises needed at the time of making the lease, or which should become necessary during the term.

It is quite plain that, at the time of making the lease, the premises were not in good repair. Immediately before this time, they had been occupied by the defendants, under a lease from the-same landlord, which contained a clause that they might make such alterations and repairs as they might consider necessary, they agreeing to pay the expense thereof.

The argument of the plaintiff is that, without this agreement as. to repairs, the defendants would be bound to do all which they claim this agreement binds them to ; and that the agreement is of no effect, unless it has the meaning claimed by the plaintiff.

At common law the landlord, without special covenant, was not-bound to repair. The tenant ivas bound to treat the premises, so that no injury be done ; not to make substantial, lasting or general but only ordinary repairs. (Suydam v. Jackson, 54 N. Y., 450.) That obligation did not’extend to making the premises better than they were when the lease began.

The case of Green v. Eden (2 T. & C., 582) cited by the plaintiff differs from the present. In that case the tenant covenanted “ as a further rent to keep the premises in good repair and condition.” The words “ good repair ” were held to make him liable* to repair defects existing at the commencement of the lease. In the case of Lockrow v. Morgan (58 N. Y., 635), also cited by the* plaintiff, the lessee agreed to make necessary repairs, and to keep' the premises tenantable at his own costs. The defect which this-agreement was held to cover was the settling of a wall, owing to-defective construction, a matter which took place after the commencement of the lease. Neither of these cases, therefore, shows-that an agreement to do necessary repairs requires the lessee to make the premises better than they were. In the case of Myers v. Burns (35 N. Y., 269), the landlord covenanted to keep the hotel and premises in good, necessary repair, at his own expense. He was held liable to do what was necessary, although the defect had existed at the commencement of the lease. It will be seen, however, that the repairs, for which he was thus liable, were those necessary to the tenants use of the premises ; and as there is no doubt, in the present case, that the tenant was to do whatever he deemed necessary for himself, that case is but little guide on the present question.

In construing this agreement we may consider the fact, that These defendants had been in previous occupation of the premises for the same purposes for which they used them during the present lease, and fully knew their condition. And, although the tenant may agree to expend money on the landlord’s promises, beyond what is needed for his own purposes, yet this is an agreement which he is not likely to make. And it should be unequivocally expressed. The ordinary rule, of course, is that the tenant takes the property just as it is, and pays his rent for the use of it in that condition. (Taylor Land & Ten., § 358.) All that he is to do is to restore it as he took it. And this is so reasonable that it would be the probable meaning of any agreement of lease which did not expressly state otherwise. In the present case the word 11 necessary ” applied to repairs, may well be understood to denote such repairs as were necessary to the defendants, and not such as might be necessary for some future or different use of the property, after their lease had expired. This view is strengthened by the further clause of surrender in as good state and condition as reasonable use and wear would permit. If the defendants wore bound to put on repairs, other than those which they found necessary — that is, if the defendants were bound to leave the property in better condition than they found it, this clause of surrender would be inconsistent with the former part of the lease. (Ball v. Wyeth, 8 Allen, 275.)

Nor do we think that much weight is to be given to the argument that the defendant would have been bound to do necessary repairs, without any express agreement. Parties wisely insert such clauses, that there may be no misunderstanding• sometimes, too, because they mistake, or axe uncertain as to the law.

"We think, therefore, that the referee erred in giving damages for the failure of the defendants to make the repairs needed at the time the lease was taken. The referee has found that there is no ■evidence from which can be determined the amount of expense of repairing such damages as accrued during the term, apart from' that which existed at the time the lease was made. Of course, therefore, we cannot determine this.

The judgment must be reversed, and a new trial granted, and reference discharged, costs to abide event, unless the plaintiff stipulate, within twenty days aftei’ notice of the order, to reduce the recovery to the amount allowed for rent and interest azid for taxes and interest, as to which there is no dispute, this amount being at the date of repoz’t $882.08. And if the plaintiff so stipulate then the judgment so reduced is affirmed, without any costs of appeal.

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

Ordered accordingly.


author: Bockes, J.: Boardman, J. :

text:
    MICHAEL QUINN as Administrator, Etc., of JOHN FAHEY, Deceased, Respondent, v. GEORGE H. POWER, Appellant.

      What is a departwe by a servant from, the business of his master.

    The defendant was the owner of a ferry boat run by his employees between the city of Hudson and the village of Athens. On June 10, 1874, the pilot of the boat took from the dock, at Athens, a man who had been left there by a tow which had landed there and was then continuing its way up the river, and agreed, as a favor, to carry him to, and leave him on the tow. This was done; when through the negligence of those in charge of the ferry boat, she collided with a canal boat, attached to the tow, whereby the plaintiff’s intestate was thrown from the said canal boat and drowned.

      Held, that the employees of the ferry boat had, without authority, departed from the business of their master, the defendant, and that he was not responsible fox-their negligent acts. (Per Bocees, J.)
    That in any event the question, whether or not the defendant’s employees had depax-ted from their master’s business, should have been submitted to the jux-y. (Per Boaedman, J.)
    Appeal fz-om a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order deziying a motion for a new trial, made upon the miziutes of the justice before whom the action was tried.
    The action was brought to recover for the killing of plaintiff’s intestate, alleged to have been caused by the zzegligence of the employees of the defendant. The defendant was the lessee of the ferry between the city of Hudson and the village of Athens, in the Hudson river, and the owner of the steam fez-ry boat “ George H. Powers,” which was used thereon and run by his employees. On June 10, 1874, the steamer “ Ohio ” with a tow of canal boats had stopped at Athens, and subsequently started on its way to Albany. One of the crew had been left on the dock at Athens. The pilot of the ferry boat, which was leaving the dock, told him to get on the boat and that he would leave him on the tow. He did so and was left on a canal boat. Afterwards the ferry boat struck one of the canal boats attached to the tow, and threw the plaintiff's intestate from such boat into the water, where he was drowned.

      Newkirk & Ohace, for the appellant.

      Jesse Johnson and D. M. De Witt, for the respondent.
   Bockes, J.:

The case is not decidedly in favor of the plaintiff on the question of the negligence of the defendant’s servants who had the ferry boat in charge, but it may be well claimed, perhaps, that a case was made proper for the consideration of the jury in that regard. It is somewhat difficult to point out any act of negligence on the part of the master, pilot or crew of the boat, which necessarily or in fair probability, caused or contributed to produce the death of the deceased. The strength of the evidence is to the effect that the ferry boat was not moving at the time of the accident, and that the canal boat, from which the deceased was thrown by the collision, struck the former as it passed while being towed on its way. It is urged that the ferry boat (a steamer) was master of its own movements, and should have kept out of the way of the canal boat, which was less under control of those having it in charge. But, on the other hand, it should be made very clearly to appear,, in order to establish negligence against those in charge of the ferry boat on this ground, that the canal boat was so situated and so moving as to make it apparent or probable to those in charge of the ferry boat, that the former would not pass without collision under proper and careful handling.

There was, however, a collision between the vessels, and the plaintiff's intestate was thereby cast from the canal boat into the river and drowned. On the whole, without suggestion or speculation as to theories of probable action, or of duty on the part of those in charge of the respective boats, or attempting to collate the evidence submitted bearing upon the conduct of those parties in their management of them, it must suffice here to declare my conclusion that a case was made for the jury on the evidence, as to the negligence of those having control of the colliding vessels.

A more serious difficulty, however, lies in the way of a recovery against the defendant by reason of the alleged negligence of those having his boat in charge. It is insisted on the part of the defendant’s counsel that, at the time of the collision, those having the management of the ferry boat had departed from their line of duty in their master’s business, and were then engaged in an unauthorized act beyond the scope of their employment; hence that the defendant was not liable for their negligent conduct. I am unable to perceive how this point of difficuly can be overcome. Those persons having the ferry boat in charge were employed by the defendant to run her on the ferry between Hudson and Athens ; and they had no authority to employ the boat in any other service, except occasionally on some special use (unlike that in which they then employed her), when such special use would not interfere materially with the work of the ferry. While on ferry duty, as at this time, they had no authority to take other than ferry-passengers who were to be carried from shore to shore. It seems that on the occasion of the accident a person on the dock wished a favor. He had been left on shore from a canal boat then in tow in the river and moving away, which being observed by the pilot of the ferry boat, the latter invited him on board, promising him, and as a favor, to put him on board the tow. In so doing the ferry boat was taken off her course up stream, and the man was by such accommodation enabled to get on board the tow ; whereupon the collision occurred which caused the death of the deceased. The case on all its material facts seems very similar to that of Cavanagh v. Dinsmore (19 N. Y. S. C. [12 Hun], 465). There a servant in the employment of the defendant as driver of a truck drove off his course at the request of a third party, and as a personal favor to the latter, and while so off duty to his employer negligently ran over and killed the plaintiff’s intestate. It was held that the driver was not acting in the business of his master at the time of the accident, and that the latter was not liable for injuries occasioned by his act. . It was there said by the court, and this language has direct application to the case in hand, that the departure of the driver from the ordinary route, for the purpose of doing a favor to another, was clearly an unauthorized deviation, and not within the scope of his duty to his employer ; and the entire law applicable to that case, and by direct analogy also to this, is stated in the additional remarks that “ it is well-settled that the master is not liable for injuries sustained by the negligence of his servants while engaged in an unauthorized act, beyond the scope and duty of his employment, for his own or another’s purpose, although the servant is using the implements or property of the master in such unauthorized act,” The authorities in vindication of this sound principle are numerous ; and many are given in the case cited (page 468), and they need not, therefore, be here repeated by way of reference. It seems indisputable that there was a diversion of the ferry boat by the pilot for a special purpose outside his employment; and this was equally true, too, as to the captain, if it be admitted that the favor, extended to the man left behind by the tow, was consented to or ratified by him. Neither of them was authorized to run the boat off the ferry for a purpose entirely their own, or to favor one, neither soliciting or accepting any right pertaining to a ferry-passenger. The decision in Cavanagh v. Dinsmore seems conclusive of this case, and is sound in principle.

This conclusion renders it unnecessary to consider other subjects of alleged error occurring during the trial.

Judgment and order appealed from reversed; new trial granted, costs to abide the result.

Boardman, J. :

I concur in the result of this opinion. If, as a matter of law, the defendant was not legally exempt from liability, I am inclined to think that under all the evidence given it was a question of fact for the jury to determine whether the defendant’s servants were acting within the scope of their authority and duty. (Rounds v. D., L. and W. R. R. Co., 64 N. Y., 129—137; Jackson v. Second Avenue. R. R. Co., 47 id., 274, 277. If I am correct in this the court erred in deciding as a legal question that the act done was within the scope of the servants’ employment, and in the discharge of their duty to the defendant.

Learned, P. j., dissented.

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