text:
    Oliver M. Kemp, Ex’r, Pl’ff, v. The Good Templars’ Mutual Benefit Association, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Benefit societies—Breach of warranty.
    The application for a certificate of the defendant contained a declara* tian by the applicant that the statements thereinafter subscribed by him. were each and every one true to "the best of his knowledge and belief, “ and are deemed to be and are warranties.” In answer to a question “Has any life insurance company declined to grant a policy on your life; and if so, why ? ” he replied, “ No.” It appeared that two years prior thereto he made application to a benefit association which was rejected. Held, that the contract was one of warranty; the statement a material one and false) and rendered the certificate void, irrespective of whether the-insured had knowledge of its falsity.
    Motion by the plaintiff, Oliver M. Kemp, as executor of th&last will of Samuel C. Kemp, deceased, for a new trial upon exceptions taken at the Allegany circuit, October 21, 1891, ordered to be heard at the general term in the first instance, after verdict for the defendant directed by the court.

      Clarence A. Farnum, for pl’ff; R. E. While, for def’t.
   Macomber, J.

This action was brought to recover upon two certificates or policies of insurance issued by the defendant to Samuel 0. Kemp, deceased. The answer alleged a forfeiture of the contract of insurance in three respects, only one of which, however, was urged upon the trial, and which alone can be considered upon this appeal. That defense relates to a false warranty made by the assured in respect to the rejection by another insurance company of an application made by him for insurance.

The question which was asked and answered in the application was:

“ Q. Has any life insurance company declined to grant a policy on your life; and if so, why? A. No.”

The contract of the insured was as follows: “ I, Samuel C. Kemp, do hereby make application for membership in the Good Templars’ Mutual Benefit Association of the State of New York, .and agree to comply strictly with the laws and regulations of such association, and I do hereby consent and agree, that in case the by-laws are amended in any manner, such amendment shall have ■the same effect upon my membership and certificates as upon members admitted after such amendment. I hereby declare that the statements hereinafter subscribed to by me are each and every one true, to the best of my knowledge and belief, and are deemed to be, and are, warranties upon my part, etc., etc.”

It is shown by satisfactory and uncontradicted evidence that in the year 1888, two years prior to the application of the insured for the policy issued by the defendant, he made an application to the National Benefit Association, which was rejected.

A false warranty of a material fact has been uniformly held by the courts to be sufficient to render void a policy of insurance, whether the statement was made through mistake or design. It is obvious that the representation made by the answer to the question above quoted was calculated to, and doubtless did, influence, to some extent, the action of the defendant in issuing its policy. Had the truth been stated, namely, that an application for insurance had been made to the National Benefit Society and rejected, we cannot say that the defendant would have been uninfluenced by such fact and still have issued the policy in question. Every reasonable intendment would lead to the contrary result.

When this proof appeared and -was not disputed, the question became one of law and not one of fact; and hence it was the duty of the court to dispose of it accordingly. McCollum v. N. Y. Mut. Life Ins. Co., 55 Hun, 103; 28 St. Rep., 272; aff’d 124 N. Y., 642; 36 St. Rep., 1015; Edington v. Ætna Life Ins. Co., 77 N. Y., 572; S. C., 100 id., 538; Dwight v. Germania Life Ins. Co., 103 id., 342; 3 St. Rep., 115.

But the counsel for the plaintiff argues that the insured did not positively represent that an application for life insurance had not been, declined by any other company, but only that no company had refused to insure him “ to the best of his knowledge ana belief,” and he relies upon the case of Clapp v. Mass. Benefit Ass’n, 146 Mass., 529; but upon an inspection of that case it is seen that the authority is not applicable to the terms contained in this contract. In the case before us there is no qualification of the warranty. It may well, indeed, be urged that the insured did not, in answering this question, intend to speak beyond the best of his. knowledge and belief so far as any claim of fraud might be alleged against him; and for the purpose of this appeal it may be-conceded that the insured did not, in fact, know that his application had been rejected, yet no recovery can be had upon this policy, for the reason that by another clause thereof this representation, whether he knew it to be false or not, was made a warranty on his part This removes the case entirely from the-doctrine claimed for the case of Clapp v. Mass. Benefit Ass'n, supra, for there the warranty was only upon the best knowledge and belief of the assured In the case of this appeal,"the warranty and qualification of the representations are in distinct clauses. It is an elementary doctrine that where an action is brought for a breach of warranty, the scienter need not be either alleged or proven; it is sufficient if the warranty is shown, together with the breach thereof. For these reasons we think that, the learned justice, upon the trial, was correct in directing a verdict for the defendant upon the ground already stated by us. Clemans v. S. A. of the R. S. of G. F., 43 St. Rep., 571.

nevertheless, in view of the expression contained in the policy, that each of the statements therein was true to the best of the kndwledge and belief of the assured, the court, on application of the plaintiff’s counsel, ruled that the plaintiff might show that the insured did not know or believe that he had been rejected as a subject for life insurance by any other company. This proof was-not forthcoming, and its effect, therefore, if given, need not be a subject of comment upon this trial.

"We place our decision upon the ground that the contract was one of warranty, and it matters not whether the insured did or did not know that his application to another company had been in fact rejected.

It may, however, not be improper to say that the evidence, bringing such knowledge home to the insured but shortly after the time of such application, is very satisfactory, and that had the jury rendered a verdict contrary to such evidence it would have-been the duty of the circuit to set it aside as not supported by the case. It was shown that the doctor who filled out the application to the Mational Benefit Society of Mew York, and witnessed the same, received as a preliminary deposit the sum of fifteen dollars-from the assured, as appears from his books of account; that when the proper officers of that company returned the application rejected, the doctor repaid, as is shown by his books, fourteen dollars of such money to the assured, retaining one dollar for his-examination fee. It is true that this witness said upon the trial that he had no personal recollection of the matter, either of pre.paring the application or in receiving back the notification of its rejection, or in-turning over the fourteen dollar’s to the assured; but the evidence is all in writing, and enables the doctor to swear positively, not only that the application was made and rejected, but that the fact of such rejection was brought home to the knowledge of the assured in the manner stated.

We are of the opinion, therefore, that the exceptions taken by ■the plaintiff should be overruled and judgment ordered for the defendant on the verdict.

Plaintiff’s motion for a new trial denied, and judgment ordered for the defendant on the verdict.

Dwight, P. J., and Lewis, J., concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    In the Matter of the Application of Hugh H. Woodworth et al., for an Order to the County Clerk of Seneca county.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Elections—Appeal—Laws 1890, chap. 262, § 13.
    An order made by a judge under § 13 of the ballot reform law is not appealable.
    S. Same—Party aggrieved.
    A member of a county committee, who was not one of the candidates nominated, is not an aggrieved or interested party.
    Appeal from an order made pursuant to § 13, chapter 262, of the Laws of 1890, directing the county clerk of Seneca county to print upon the official ballots the names of certain persons, claimed to be the regularly nominated candidates of the republican party of Seneca county.
    The principal questions involved in this appeal arise under the section mentioned, which reads as follows:
    “All certificates of nomination which are in apparent conformity with the provisions of this act, shall be deemed to be valid, unless objection thereto shall be duly made in writing within three days after the filing of the same. In case such objection is made, notice thereof shall forthwith be mailed to all candidates who may be affected thereby, addressed to them at their respective places of residence as given in the certificate of nomination. The officer with whom the original certificate was filed shall in the first instance pass upon the validity of such objection, and his decision shall be final unless an order shall be made in the matter by a court of competent jurisdiction or by a justice of the supreme court, at chambers, on or before the Wednesday preceding the election. Such order may be made summarily upon application of any party interested and upon such notice as the court or judge may require.

      W. A. Sutherland, for app’lt; Frederick L. Manning, for relators.
   Lewis, J.

Two rival republican county conventions were held in Seneca county in the year 1891.

For the purpose of identification, one of the conventions is designated in the record as the Mongin convention and the other as ábe Patterson convention.

Bach convention claimed to he genuine and regularly organized.

Bach put in nomination candidates for county offices to be voted for by the electors of Seneca county at the general election in November, 1891, and each convention caused to be filed with the clérk of Seneca county a certificate of the nomination of its candidates in due form as required by § 4 of said act.

The county clerk received and filed both certificates.

Objections were duly filed to both, and after due notice to the, respective candidates the objections were investigated by the county clerk, and he decided in favor of the certificate of the Mon-gin convention.

An application was thereupon made by the nominees of the Patterson convention, to Justice William H. Adams of the supreme court, for an order directing the clerk to print upon the official ballots the names of the nominees of the Patterson convention, and, after hearing the parties interested, Justice Adams made the order appealed from, directing the clerk to print on the official ballots the names of the nominees of the Patterson convention.

The clerk complied with the order; the election took place, and thereafter and on the 28th day of November, 1891, at a special term of the supreme court, upon motion of Duncan McArthur, who claimed to be one of the members of the republican county committee of Seneca county, by appointment of the Mon-gin convention, an order was made that he be substituted in the above entitled matter in the place of Edward Nugent, county clerk of Seneca county, for the purposes of an appeal, and to the end that his interests and that of his colleagues in the republican county committee be protected; and he thereupon brought this appeal.

Is the order appealable?

The county clerk primarily hears, investigates and decides upon the validity of the objections ; and, unless an order shall be made in the matter by a justice of the supreme court, or a court of competent jurisdiction, the county clerk’s decision is final.

Any party interested can apply to a justice of the supreme court to investigate and decide between the contending candidates.

If the decision of the county clerk, who presumably as a rule is not a lawyer, is to be final, there would seem to be no good reason why the decision of the question by a competent court or a justice of the supreme court should not also be final.

■ The exigencies of the case must always prevent much delay in the investigation and decision of the question.

Conventions are usually held but a few days prior to the day of election.

In this case the conventions met on the 12th of October, certificates were filed the next day, the election occurred November 3.

The certificate of nominations is required to be filed with the county clerk not more than thirty nor less than twenty days before the election.

A list of the certified names must be published at least six days before election, and sample copies of the ballots must be prepared and ready for public inspection seven days before election.

So that the time within which these questions may be investigated and decided is brief, and the proceedings must necessarily be summary.

We think it must be held that the act does not contemplate-that an appeal can be taken from the order of the judge.

° But, if the order should be held to be appealable, the appeal must be taken by a party who has some right to be protected or some wrong to be redressed or prevented.

A party aggrieved may appeal. Section 1294 of the Code.

A person aggrieved who is not a party, but is entitled by law to be substituted, may make application for an order that he be substituted in place of the party.

Mr. McArthur was not one of the nominated candidates.

He had no interest in the question that was not common to all the electors of the county of Seneca.

He is not, within the meaning of the Code, an aggrieved or interested party.

It is suggested in the brief of the appellant’s counsel that the decision of Justice Adams may affect the question as to the personnel of the county committee of Seneca county for the year 1892.

If so, that would not seem to furnish any reason for his interference in this proceeding.

But it is not apparent how or in what manner the decision can have that effect.

Each of the rival conventions appointed a county committee for the ensuing year, and it is altogether likely a contest will arise a® to which one is the genuine committee, but that question was not involved in the investigation before Justice Adams, and cannot be determined here.

For if it be held that Mr. McArthur can represent his committee upon this appeal, concededly the Patterson committee is not represented in this proceeding and hence would not be bound by our decision.

We are of the opinion that Justice Adams’ order was not appealable, and we are also of the opinion that Mr. McArthur has no interest in the question involved, and had no right to bring this appeal.

When the order was obeyed by the county clerk it had accomplished its mission; its reversal now would affect neither the-election nor the candidates of either convention.

This appeal presents simply an abstract question.

Appeals are not allowed to settle questions of that character.

They are entertained to correct errors injuriously affecting the right of some party to the litigation. Bryant v. Thompson, 128 N. Y., 433; 40 St. Rep., 439.

Courts will not decide mere abstract questions from the determination of which no practical result can follow. People v. Common Council of Troy, 82 N. Y., 575.

It is not the province of courts to decide abstract questions of law disconnected from the granting of actual relief. Grow v. Garlock, 29 Hun, 598.

An appeal from an order denying a mandamus to compel the > hoard of estimate and apportionment to make a final estimate in a certain manner of the amount required to pay certain expenses for a year which expires before the record is brought before the general term for review, will be dismissed. So held in People v. Grace, 16 St. Rep., 1011; People v. Board of Canvassers, 18 id., 797; People v. Squire, 110 N. Y., 666; 18 St. Rep., 528; Ross v. Wigg, 100 N. Y., 243.

Notwithstanding our impressions that the appeal must be dismissed, we have examined the merits of the case, and we find no reason to disturb the decision of Justice Adams upon the merits.

The affidavits read upon the application for the order and printed in the record disclose a course of conduct at the primaries not very encouraging to the advocates of clean politics.

The appeal should be dismissed, without costs to either party of the appeal.

Dwight, P. J., and Macomber, J., concur.


author: Dwight, P. J.

text:
    M. E. Bower et al., Resp’ts, v. Edwin B. Thompson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Mistake—Money paid by—Demand.
    Where an overpayment of money has been made by mistake of the party paying, and the other party knew at the time that he was receiving money to which he was not entitled, the obligation to refund arises on the instant the money was received and no demand is necessary before suit to recover the same.
    Appeal from judgment of the county court of Cayuga county, affirming as modified a judgment of a justice’s court.
    Action to recover $25, money paid on hay and overlooked by mistake in settlement, and for $2.61 for plaster.
    The following is the opinion of the county judge s
    Underwood, 0. J.—The" payment of $25,00 by plaintiffs to ■defendant May 5th, 1888, on account of hay. sold by him to them, and the fact that this item was overlooked, and no credit given plaintiffs for it in the subsequent settlement between the parties, is not seriously questioned.
    As defense to this item, defendant relies upon the theory that the mistake was mutual, and that recovery could not be had without demand previously - made. Mayor v. Erben, 3 Abb. Ct. App. Dec., 255.
    The circumstances rather indicate to me that this case is to be governed by the rule laid down in Sharkey v. Mansfield, 90 N. Y. 228, and that the defendant knew at the time of the settlement that he was receiving twenty-five dollars he was not entitled to. He does not deny that he knew he had been overpaid. He simply testified that he never heard of any account they, the plaintiffs, had against him until the commencement of this suit The burden of proof was on him to show that he was not aware of the overpayment at the time it was made, and his evidence, it seems to me, falls far short of this.
    For the item of $2.61 for plaster, claimed to have been sold defendant, there was absolutely no evidence to sustain a recovery against him, except the fact that the item was charged to defendant on plaintiffs’ books. One of the plaintiffs testified he made the charge, but neither he nor his partner testified to a sale and delivery of the plaster to the defendant, nor did they offer any evidence upon the subject, beyond the entry in their books, or offer any explanation of their neglect to furnish proof of an. actual sale.
    Defendant positively denied having bought or authorized any one else to purchase any plaster of plaintiffs. While the books-were admitted in evidence without objection, no proper proof had been made authorizing their reception; and under all the circumstances I do not think plaintiffs should have been allowed to recover for this item.
    Plaintiffs’ recovery should have been limited to the item of twenty-five dollars, with interest from May 5th, 1888, to April 4th, 1891, $29.37 damages and four dollars costs; in all $33.37.

      W. T. Parker, for app’lt; H. E. Hills, for resp’ts.
   Dwight, P. J.

The action, so far as presented by this appeal,, was for money had and received, being the sum of twenty-five dollars paid to the defendant by the plaintiffs a second time, by mistake of the latter. The only defense here suggested was the absence of a demand before action brought. Whether the defense was tenable depends upon whether the mistake was mutual and the over payment innocently received by the defendant; or whether it was by mistake of the plaintiffs, only, and the defendant knew, at the time, that he was receiving money to which he was not entitled. In the former case the obligation to refund did not arise until notice of the mistake and a demand of repayment, Mayor v. Erben, 3 Abb. Ct. App. Dec., 255; Southwick v. First Nat. Bank of Memphis, 84 N. Y., 430; in the latter, it arose upon the instant the money was received. Sharkey v. Mansfield, 90 N. Y., 228. The distinction and the reasons for it are obvious.

In his opinion the learned county judge saj^s the circumstances-indicate to him that the case is governed by the authority last cited, “ and that the defendant knew at the time of the settlement that he was receiving twenty-five dollars that he was not-entitled to.”

Such it may be presumed was also the effect of the testimony upon the mind of the justice; and, the case is not one in which, either the county court or this court should interfere with the conclusion of fact That conclusion does no violence to the evidence, even as it appears more or less imperfectly reproduced in the return, while the'justice had the advantage of hearing the full oral testimony of the parties and observing their appearance on the stand.

And the fact being found that the defendant knew at the time-of receiving the over payment that it was such, the case was within the second category above described, and no demand was necessary to recover the amount.

The judgment appealed from must be affirmed.

Judgment of the county court of Cayuga county affirmed, with costs.

Macomber and Lewis, JJ., concur.


text:
    James H. Lake, Resp’t, v. John B. Mc Elfatrick et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Contract—Architects—Defects in plans.
    Defendants prepared plans and specifications for a theatre for plaintiff. These did not call for a blind arch over the proscenium arch, which fell beneath the weight of the wall above it. The omission to provide for such blind arch was the defect in the plans claimed. Held, that evidence to show that the proscenium arch was too flat to sustain the weight laid, upon it was admissible on the question of the necessity of the blind arch..
    2. Same—Defense—Deviation from plans.
    A deviation from the plans and specifications which had no effect whatever to produce the loss complained of will not prevent a recovery for such loss.
    3. Trial—Isshes not within pleadings.
    Where a question has been tried by common consent and submitted to • the jury without objection, it is too late on appeal to object that it was-not within the pleadings.
    Appeal from a judgment in favor of the plaintiff, entered cru the verdict of a jury at the Chautauqua circuit, and from an order denying the defendants’ motion "for a new trial on a case andi exceptions.

      G. W. Cothran, for app’lts; C. D. Murray, for resp’t.
   Dwight, P. J.

The action was by the plaintiff as assignee of one Chauncey F. Lake, to recover damages for a breach of the defendants’ contract to furnish to the latter good and sufficient plans, drawings and specifications for the construction of a theatre in the village of Titusville, Pa.

The allegations of the complaint were, in brief, that the plaintiff’s assignor, living at Titusville and being about to erect a theatre at that place, applied to the defendants, who were partners in business as architects in the .city of New York, to contract with them for the necessary plans, etc., for such building; that the defendants held themselves out and warranted themselves to be competent architects and especially skilled in designing and planning buildings for theatrical purposes, and that if employed by him to do so they would furnish to the plaintiff’s assignor plans, drawings and specifications of everything necessary in the construction of his theatre, which if duly followed would ensure to him a building constructed in a good, accurate and substantial manner; that thé plaintiff’s assignor, relying upon such representations and warranty, employed the defendants to make and furnish such plans, drawings and specifications, for which he agreed to and did pay theni the price agreed upon, and that the defendants furnished the plans, drawings and specifications upon which he proceeded to erect his building.

The allegation of a breach of the contract so made is to the effect that the plans so made and furnished by the defendants were faulty and defective," in that the defendants negligently omitted from the plans a blind arch which should have been required to be constructed in the brick work of the wall over the proscenium arch, and that by reason of such omission from the plans the wall in question was constructed without such blind arch, with the result that the wall fell, to the great damage of the plaintiff’s assignor.

The contract was admitted, and the fact that the plans did not call for a blind arch over the proscenium arch, and that the wall fell; so that really the only question under the pleadings, aside from that of the amount of damages, was whether the wall fell for want of the blind arch. The proof clearly showed that the effect of a semi-circular blind arch in the position described would have been to relieve the proscenium arch from the weight of the wall above it; and whether that was necessary or not depended upon whether the spring of the proscenium arch was sufficient to enable it to bear that weight without such relief.

This was one of the principal questions tried in the case, and one of the principal exceptions argued here relates to the admission of evidence on the part of the plaintiff to show that the proscenium arch was too flat to sustain the weight, laid upon it.

The exception was not well taken. The evidence was objected to on the ground that the defect in the proscenium arch was not specified in the complaint. But the evidence was admissible, because it tended to show that the omission of the blind arch was the defect it was charged to be.. If the proscenium arch was sufficient to support the weight of the wall, there was no need of the blind arch; whereas, if the proscenium arch was incapable of supporting that weight, the blind arch, or its equivalent, was indispensable.

Evidence was also received tending to show that there was a defect in the specifications in respect to the character of the mortar to be used in the proscenium arch. That defect was not specified in the complaint, and the bearing of the evidence on the question of the necessity of the blind arch was remote; the evidence was probably not admissible, but it was nowhere objected to. The question was tried at considerable length, and was submitted to the jury without any objection on the part of the defendants. It thus became an issue by "common consent on the trial, and it is too late, on appeal, to object that it was not within the pleadings.

The defendants also made the question on the trial, though their answer was silent on the subject, whether the plaintiff was not himself chargeable with the loss complained of, because he neglected to follow the plans and specifications as they were made by the defendants; and much evidence was given on the question of the probable effect of a particular deviation which was proved. But «this question was fully submitted _to the jury with the in. struction that if the deviation in question either caused or contributed in any degree to cause the fall of the wall, the plaintiff could not recover.

The defendants aslced for the absolute instruction that the plaintiff could not recover “ for the reason that he left out the stone skew back.” This the court declined, holding and instructing the jury that unless the omission of the “ stone skew back ” caused or contributed in some degree to cause the fall of the wall, it did not affect the plaintiff’s right to recover. There was no error in the charge or in the refusal to charge.. A deviation from the plans and specifications which had no effect whatever to produce the loss complained of could have no effect upon the right of the plaintiff to recover for such loss.

The defendants’ exceptions to the refusal of the court to direct a nonsuit or a verdict for the defendants raise no other question than that of the sufficiency of the evidence to support a verdict for the plaintiff, and neither exception was well taken. The evidence shows beyond question that the proscenium arch collapsed beneath the weight of the superincumbent wall, a result which of itself demonstrated its insufficiency, and the verdict of the jury implies the finding that this result would have been obviated by the interposition of the blind arch, and that the defendants were chargeable with a violation of their contract in failing to-include such an arch in their plans and specifications. The verdict is well supported by the evidence bearing upon the questions litigated, and there is no exception which affords ground for setting it aside.

The judgment and order appealed from should be affirmed.

Macomber, J., concurs; Lewis, J., not sitting.


text:
    Michael McNamara, Adm’r, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Negligence—Contributory.
    A person who enters upon a railroad crossing at a time when it is enveloped in smoke so that approaching engines cannot he seen «is guilty of contributory negligence.

      (Heaney v. Long Island R. R. Co., 112 N. Y., 122; 20 St. Rep., 296, followed.)
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury at the Erie circuit, and from an order denying the defendant’s motion for a new trial made on the minutes of the court.

      J. F. Gluck, for app’lt; John Laughlin, for resp’t.
   Dwight, P. J.

The action was for the alleged negligent killing of the plaintiff’s intestate, Margaret McNamara, at the grade crossing, by the defendant’s road, of Hamburg street, in the city of Buffalo.

The evidence was amply sufficient to support the verdict of the jury on the question of the defendant’s negligence. But the undisputed facts presented a strong case for the application of the rule laid down in Heaney v. The Long Island R. Co., 112 N. Y., 122; 20 St. Rep., 296, which has already been followed by us in Whalen v. The N. Y. C. & H. R. R. R. Co., 40 St. Rep., 566. The doctrine referred to is that a case of contributory negligence is made out by evidence which shows that the deceased entered upon the crossing at a time when it was so enveloped by clouds of smoke as to hide or so to obscure near and approaching objects as to render him less able to protect himself by the use of his senses. In this case the sole witness, from whose testimony the facts of the occurrence are to be derived, testified in answer to questions by counsel for defendant that at the time the deceased went upon the track the smoke of a train which had just passed had settled down on the street so that she could not have seen the approaching engine if she bad looked; that the whole place was enveloped in smoke; that there was a thick veil of smoke between her and where the engine came from, which settled right down on the track, so that when she looked down that way she could not see the engine. The case could scarcely be made stronger as an illustration of the • rule declared in the case of Heaney, supra. On the authority of that case it was error to den.y the motion for a nonsuit, and the judgment and order appealed from should be for that reason reversed.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.

Macomber and Lewis, JJ., concur.


text:
    Cynthia M. Covey et al., App’lts, v. William R. Covey, Adm’r, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Decedent’s estates—Joinder.
    The claim in question was by five legatees of a remainder of personal property after a life estate therein against the administrator of the life tenant to recover the value of a horse belonging to the estate sold by her. Held, that the interests of the plaintiffs being several, this proceeding on a joint claim could not be maintained.
    2. Same—"Wafver oe objection.
    Where the fact (hat the claim is several does not appear on its face as presented, the administrator does not waive an objection on the ground of misjoinder by consenting to refer. There being no answer or demurrer in such proceedings, he may await developments of the trial, and make objections as the grounds for them appear.
    Appeal from an order of the Onondaga special term, entered in Cayuga county, confirming the report of a referee in a reference under the statute.

      H. Greenfield, for app’lts; F. S. Coburn, for resp’t.
   Dwight, P. J.

No question is made of any of the facts found by the referee; accordingly no case was made, but the confirmation of the report was opposed on the ground that the facts found did not support the conclusions- of law. The findings of fact were to the effect that the plaintiffs were five legatees of a remainder of personal property, after a life estate therein, which was to be divided equally between them; that the property included a horse, which had been sold by the survivor of the life tenants, the avails of which remained a part of her estate at the time of her death, and was the subject of the claim in this proceeding against the defendant as her administrator.

The referee dismissed the claim on the ground that the plaintiffs’ cause of action wms several, and not joint; that they.had no joint interest in the recovery sought, and could not maintain a joint proceeding therefor. We suppose this conclusion was entirely correct. Myers v. Cronk, 45 Hun, 404; 10 St. Rep., 127. Counsel for the plaintiffs urge that the objection to their being joined, if it existed, was waived by the consent of the defendant to refer the claim as presented. But the fact that the claim of the plaintiffs was several, and not joint, did not appear on the face of the claim as presented, and the administrator, defendant, is not chargeable with knowledge of what the proof would be. There is in this special proceeding neither demurrer nor answer by which the objection could be taken. The defendant may await the developments of the trial, and make his objections as the grounds for them appear. When the fact appeared that the claim of the plaintiffs was for their several shares of a sum of'money in the hands of the defendant, the objection to their joint proceeding for its recovery -was well taken and properly sustained.

The order appealed from must be affirmed.

Order affirmed, with costs.

Macomber and Lewis, JJ., concur


text:
    John J. Snell, Resp’t, v. The Rochester Railway Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Negligence—Street railroad—Sure ace drain between tracks.
    Plaintiff's horse was injured by a fall caused by his stepping into a depression between the rails of one of defendant’s tracks, at the bottom of which was the grated opening to a sewer drain. It was stipulated ou the trial that the surface drain, grate and depression were constructed by the city several years before, and had remained in substantially the same condition. Held, that the defect was not one of repair, but of construction, for* which the city was alone responsible, and which defendant had no authority to remedy, and that it was not liable.
    Appeal by the defendant from a judgment of the county court of Monroe county, affirming a judgment of the municipal court of Eochester.

      F. W Smith, for app’lt: H. J. Sullivan, for resp’t.
   Dwight, P. J.

The action was to recover for injuries to a horse, the result of a fall caused by his stepping into a depression in the pavement of North St. Paul street in Rochester, between the rails of one of the tracks of the defendant’s road. At the 'bottom of the depression there was the grated opening of a lateral drain leading to a sewer, and the whole arrangement was for the purpose of receiving and carrying off the surface water from a low place in the street. After the trial the parties entered into a stipulation which was incorporated into the return on appeal of the municipal court to the county court, as follows: “ It is hereby stipulated that the evidence given on the trial of the above entitled action established the fact that the surface drain, the grate over the opening of the same and the depression between the rails of the street car track, * * * where the accident herein complained of occurred, were constructed by the city of Rochester several years before the accident occurred, and that said drain, grate and depression have remained in substantially the same condition from the time they were constructed down to June 20, 1890,” which was the date of the accident.

We regard this stipulation as fatal to the plaintiff’s cause of action against the defendant, and, consequently, to the judgment from which this appeal is taken. By that stipulation it conclusively appears that the defect in the street, complained of, was not the result of the use of the street by the defendant, nor of any act on its part, nor of the omission of any duty which it owed to the public. It was a defect not of repair, but of construction, for which .the city alone was responsible, and which it was neither the duty nor the privilege of the defendant to remedy. The duty laid upon the defendant by the statute in such case made and provided was “to have and keep ” the space between and beside its rails and tracks “ in permanent repair.” Laws of 1884, chap. 252, § 9. It had no authority to change the location or dimensions of the opening of the drain, nor the depth or slope of the sides of the depression connected with such opening, all of which had been determined upon by the proper authorities of the city, and constructed by the city itself in accordance with such determination. As we have said, the defendant not only owed no duty to the public to improve the construction of the street determined upon and carried out by the citjq but it had no authority to do so, even for its own benefit; and the evidence in the case discloses the fact that the defendant and its predecessor in the franchise had always been subjected to considerable inconvenience by reason of the faulty construction in question, which they had no authority, in themselves, to remedy. None of the cases cited by counsel for the plaintiff seem to us to support their contention, nor do we see how it can be supported on principle, in view of the facts established by the stipulation found in the case.

The judgment of the county court and of the municipal court of Rochester should be reversed.

Judgment of the county court of Monroe county and of the municipal court of Rochester reversed, with costs.

Macomber and Lewis, JJ, concur.


author: Spring, S.

text:
    In the Matter of the Judicial Settlement of the Account of Christopher C. Crosby, Ex’r of Walter Essex, Deceased.

      (Surrogate’s Court, Cattaraugus County,

      Filed November 10, 1891.)

    1. Gifts causa mortis—Delivery.
    Testator, who had no wife or children, held a note of the executor, who was an intimate friend. During his last illness he asked his niece to bring his papers, and gave her this note, telling her that he had given it to Crosby; that he knew of it, that she was to keep it and_ that he did not want his heirs to know anything about it. Held, that this constituted a valid gift causa mortis of the note to the executor, and that there was a sufficient delivery.
    2. Same—Collateral inheritance tax.
    The executor received said note subject to the collateral inheritance tax.
    3. Executors and administrators—Interest.
    Where an executor commingles the avails of the estate with his own funds and uses them for his personal benefit, he is chargeable with interest.
    Judicial settlement of accounts.

      C. D. Van Aernam, for ex’r and claimant; N. M. Allen, for contestants.
   Spring, S.

The testator held a note of $1,000 against the executor which he had owned since 1876.

The executor claims this note as a gift from Mr. Essex, and asserts his title thereto in the inventory filed and does not include it among the assets of decedent in his account rendered in this proceeding. '

Objections are presented to the account by the legatees for this omission, and the validity of the alleged gift is thus brought in controversy.

The testator at the time of his death was well along in life, without wife or children, and an intimate friend of the executor, his ■ alleged donee.

His niece, who was the only witness as to the alleged present, had been his housekeeper for several years and evidently was trusted and appreciated by him, for he made her his beneficiary to the amount of $1,000.

Mr. Essex was taken with hemorrhage of the lungs in the village of Franklinville, was removed to a hotel and remained there continuously until his death, which occurred in about two months after the first attack.

He realized from the first that his recovery was impossible. Ho had a farm and three or four thousand dollars in securities.

A day or two after his affliction he directed his niece to bring his papers from the farm, which she did and kept them, including this note in her possession until after his death. Early in his sickness he requested her to get this note against Crosby, and when brought to him took it in his hands and then handed it back to her telling her he had given this note to Christopher Crosby; that she was to remember this; that he did not wish his heirs or any one else to know of this gift; that Crosby knew about it and that she was to take it and keep it, evidently meaning until his death.

He reiterated to her a few days before his death the statement of this present, and again enjoined upon her to remember it and also to keep it secret.

Two of the essentials necessary to a valid gift of this kind are unmistakably present.

1st. That it was given in view of the donor’s death; and 2d. That he died of the ailment with which he was afflicted at the time the present was made.

Was there a sufficient delivery of the note ?

In case of gifts causa mortis physical possession of the property is not necessarily parted with by the donor. The right of revocation inheres in the donor in case of recovery, and that is the characteristic distinguishing gifts of this kind from those inter vivas. Williams v. Guile, 117 N. Y., 343-348; 27 St. Rep., 253.

The note in controversy was especially designated by the donor. His intention to make the gift is established by clear, unequivocal testimony, and his direction to his attendant to retain the custody of the note during his lifetime, and his evident care that his executor, the donee, should be assured in its possession upon his death, are amply adequate to make a sufficient delivery and constitute the custodian of the note his agent to render effectual the donation. Grymes v. Hone, 49 N. Y., 17; Williams v. Guile, 117 id., 343; 27 St. Rep., 253; Hathaway v. Payne, 34 N. Y., 92.

In the first case cited the donor made a written assignment of twenty shares of stock to a granddaughter, and gave the assignment to his wife to give to the donee upon his death. The court, in sustaining this as a valid gift causa mortis, held that the wife was the agent of the donor to effectuate the donation.

Testator was desirous that the fact of this gift should not be divulged to his legatees. Evidently he thought to accomplish this by making his donee his executor.- ,

He told his housekeeper that Orosby knew of this gift, and it is fairly inferential that the old gentleman expected in this way to work out the formal delivery of the note without any publicity. That when Crosby obtained the securities he would destroy this note.

In no other way can we spell out his extreme caution, and his designation of Crosby as his executor adds significant force to this inference.

Crosby, however, received this note subject to the collateral inheritance tax. Chap. 713, Laws of 1887, § 1.

The executor received the avails of the estate and commingled them with his own funds, and used them for his personal benefit; and is therefore chargeable with interest, which I have adjusted in the statement of the account embodied in the findings herein.


text:
    In the Matter of the Will of Levi W. Boardman, Deceased.

      (Surrogate’s Court, Cattaraugus County,

      Filed December 29, 1891.)

    1. Will—Construction—Uncertainty of beneficiary.
    A bequest to “ the heirs of” a deceased daughter is not void for uncertainty as to the beneficiary.
    3. Same—Provision as to monument.
    The will in question directed that after payment o'f debts the balance and remainder of the estate, real and personal, should be expended in the building of a monument and a suitable fence and fixtures. Held; that this was no more than a direction to his executors to set aparta reasonable portion of the estate, suitable to testator’s station in life, for that purpose.

      Proof of will.

      Nash & Willson and W. S. Thrasher, for proponents; D. E. Powell and William Woodbury, for contestants.
   Spring, S.

The testator sent for the subscribing witnesses to come to his house in the night, to witness the execution of his will. It had been previously drawn, and he personally supervised its execution. He was explicit in his declaration. that it was his will and in his request to them to subscribe it as witnesses.

One of the witnesses is explicit in testifying testator signed the will in their presence, while the other has no definite recollection, but an impression it was not signed by the testator in their presence, and that he did not observe his signature.

Ten years have elapsed since its execution, and Mr. Hunton has evidently forgotten the details of the occurrence.

He wrote the date of the will immediately preceding the signature of the testator, and so important an omission as the absence of the name of the testator would have attracted his attention.

There is more doubt as to the codicil. That instrument, however, does nothing but appoint an executor, and I think there was in its execution a substantial compliance with the statute.

He took the will and codicil to the store personally, and while this codicil was not a holograph instrument, it was prepared for him. before he went to have it executed. It was drawn on the back of the original will, and testator was evidently familiar with the formalities incident to the execution of wills, as is shown by the clearness of his directions when the original will was drawn.

Both witnesses agree that he said it was a codicil to his will and asked them to subscribe as witnesses, which they then did in his presence. In controversies of this kind it is proper to make an inspection of the document itself. See Matter of Wilcox, 37 St. Rep., 462. And an examination of the signatures convinces me they were all written with the same ink and apparently at the same time.

Both the will and codicil should be admitted to probate.

The will was as follows:

First. I give and bequeath to the heirs of my daughter Mariah Theresa Eddy now diseased the sum of five hundred (500) dollars shair and shair alike.
Second. That after paying all my debts after my death it is my will and direction that the ballance and remainder of all my property, booth real and personal, shal be expended in the building and erecting a monument at the head of my grave togaiher with suiible fense and fixtures.

The construction of the second clause of the will is put in issue by the objections filed. The counsel for the contestants, in a very elaborate brief, argues with much ingenuity that there is no ascertained beneficiary, and hence that the will is void for uncertainty, and cites a number of authorities, of which Holland v. Alcock, 108 N. Y., 312; 14 St. Rep., 761, and Read et al. v. Williams, 125 N. Y., 560; 35 St. Rep., 909, are samples. I do not think those eases are applicable. Had the testator directed in plain, unequivocal terms that his executors expend a reasonable sum in the purchase of a monument to be erected at his grave, no one would have questioned the validity of the direction. The erection of a monument is one of the incidents to the administration of an estate of a decedent of the same class as funeral expenses. Wood v. Vandenburgh, 6 Paige Ch., 277-285. And such a provision is one that a testator has the right, to make, even to the extent of all of his property. Pfaler v. Raberg, 3 Dem., 360; Matter of Frazer s Accounting, 92 N. Y., 239-249; Emans v. Hickman, 12 Hun, 425.

But a fair interpretation of this clause is no more than a direction to his executors to set apart a reasonable portion of his estate for the purposes stated. He was a farmer who had acquired a small competence by dint of the frugality and self-denial which the life of a small farmer implies. He had reared a large family who had remained with him until they severally attained majority. He lived at a distance even from a small.village, and aman of his stamp would hardly desire that the entire savings of his provident life should be devoted to the erection of a tombstone in a country graveyard, soon to be covered over with the weeds and vines, which are the usual adornments of such a place. He provided for a suitable fence and fixtures, and evidently had in mind a corresponding fitness in the purchase of his monument. But he preferred to trust to the wisdom of his executors in making this outlay than to his children, who had left home and become scattered.

In Emans v. Hickman, 12 Hun, 425, supra, a similar direction was construed to mean an expenditure suitable to his station ih life. While a literal interpretation of the language employed would seem to imply testator intended to have all his residuary estate used in the erection of this monument and the adornment of his burial lot, yet, in arriving at his real intent, we must look at all the circumstances surrounding his life, and they would not uphold so extravagant an outlay.

Certainly this interpretation does no greater violence to the-language used than in the case cited. The testator provided in this clause that all of his property remaining after the payment of his debts should be expended for the purposes stated. A literal construction of this language would lead to the exclusion of the bequest in the first- clause, and such assuredly was not his intention, for he designed the monument clause to be subsidiary to the previous bequest.

Wherefore, a fair interpretation of his will leads to about the following results:

First. The payment of the expenses of this p roceeding, and of administration.
Second. The payment of his debts and.ordinary funeral expenses.
Third. The payment of the first bequest.
Fourth. The purchase of a monument and the adornment of his burial lot, for which no more than $500 should be expended.
Fifth. The balance to his heirs at law and next of kin in accordance with the laws of descent and distribution.


author: Mayham, P. J.

text:
    Mary Ann Hawver, Resp’t, v. Edward R. Bell et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    -Chattel mobtqage—Safety clause.
    When a mortgagee assumes to take possession of the mortgaged property under the safety clause he must show some ground for claiming that he deems himself insecure; hut when there is any evidence on that subject it becomes a question of fact, for the jury to determine, whether he did in reality feel insecure, or whether it was a mere pretense for the purpose of enforcing payment of the security before maturity.
    Appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial upon the minutes of the trial judge.

      John F. Shaw, for app’lts; T. F. Bush, for resp’t.
   Mayham, P. J.

This action was for a wrongful conversion of personal property.

The defendant alleged that the property was taken by virtue of a chattel mortgage which was given to secure the payment of a note for $569 ; that the mortgage and note were given by plaintiff to Alexander Archibald and by him assigned to defendant’s testator. The plaintiff replied to this answer, alleging that the note and mortgage were usurious and void.

Two questions were litigated on the trial. First. The right of the defendant to take the property on the mortgage; second, the value of the property taken. At the time the property was taken the mortgage debt was not due and no actual default had occurred, but the mortgage contained the following clause: “And in case the said Alexander Archibald shall at any time deem said property or debt unsafe it shall be lawful for him to take possession of such property, and to sell the same at public or private sale previous to the time mentioned for the payment of said debt.”

The defendant to prove that there was reason to apprehend that the property and debt was unsafe, proved that there was a judgment against the mortgagor on which an execution had been issued and levied upon some of the mortgaged property.

The authorities seem to be to the effect that when a mortgagee assumes to take possession of the mortgaged property under the safety clause before default, he must show some ground for claiming that he deems himself insecure. Hall v. Sampson, 35 N. Y., 274; Hathaway v. Brayman, 42 id., 322; Allen v. Vose, 34 Hun, 60

But when there is any evidence upon that subject, it becomes a question of fact for the jury to determine whether the mortgagee did in reality feel insecure, or whether it was a mere pretense for the purpose of enforcing payment of the security before maturity.

That question, we think, was properly left to the jury in this case by the learned trial judge, and there was no exception taken to that direction by the defendant.

The plaintiff at the trial offered evidence tending to prove that at the time of the making of the note and mortgage there was added to the amount actually due five per cent above the amount due the mortgagee, and also in addition thereto four dollars for his expenses in going from Delhi to the place where the business was done and $2.50 for horse hire, wliich amounted in all to forty-eight dollars, and that twelve dollars was paid by the plaintiff to the mortgagee at the time in butter and ■ the balance-of thirty-six dollars was included in the note and mortgage, and that this was done because the mortgagee claimed that he wanted to sell the note and mortgage and would have to do so at a discount. There was some conflict in the evidence upon the subject of the usurious exaction and receipt of this forty-eight dollars, but that question was also submitted to the jury as a question of fact under proper instructions by the trial judge.

And the evidence was sufficient to uphold the finding of the-jury, if they believed that offered on the part of the plaintiff, that the consideration of the mortgage and note was tainted with usury. The same is true of the contention over the value of the property taken. It was a disputed question of fact for the jury, and their finding cannot be disturbed by the court.

Some objections and exceptions were taken by the defendant to the ruling of the judge on the trial in reference to the admission of evidence and the charge, but we find no error committed by him on the trial for which the judgment can be reversed.

Ther'e was sufficient evidence to sustain the verdict of the jury upon all the questions of fact submitted to them, and this court cannot interfere with the verdict.

The judgment must be affirmed, with costs.

Putnam and Herrick, JJ., concur.


text:
    Henry H. Williams, Resp’t, v. Isaac R. Clements, Ex’r, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Payment—Pbbsumption of—Money had and beceivbd.
    Plaintiff while in the army sent $400 to defendant’s testator to keep for him until he wanted the same, and testator subsequently promised and agreed to make provision in his will for its payment. During his life he-repaid, $100, and by his will he left plaintiff $100. Held, that under such an arrangement payment was postponed until the death of testator and could not be presumed from lapse of time, but that the bequest to plaintiff should be deducted from the amount of the debt.
    2. Conteact—Implied—Suppobt of child.
    Testator, at the solicitation of his wife, took and kept plaintiff’s child, which was his grandchild. There was no evidence to show that he intended, to charge for its support. Held, that under such circumstances the law will not raise an implied promise on the part of the father to pay for such support.
    Appeal from a judgment entered upon an order confirming the report of a referee, made on a disputed claim against the estate of decedent.

      Daniel Finn, for'app’lt; E. H. Finney (T. F. Bush, of counsel), for resp’t.
   Mayham, P. J.

The referee finds that the plaintiff while a soldier in the field, during the war of the Rebellion, sent to the-testator from time to time money received by him to the amount of about $400, and that the testator in his life time returned to the plaintiff $100 of the same.

That the money was sent by plaintiff, and was received by the testator in trust for the plaintiff until lie wanted the same, and that testator retained the same and was holding it in trust for the plaintiff at the time of his decease.

That in the life time of the testator, and while he was so holding the money in trust for the plaintiff, he promised and agreed with plaintiff to make provisions in his last will and testament for the payment of the same, but failed to do so.

The case shows that the testator in and by his last will bequeathed to the plaintiff $100. The plaintiff presented to the defendant, as executor of the deceased, a verified claim against the estate of deceased for $300 with interest' from August 1, 1865, amounting principal and interest to the sum of $768.

The executor disputed and rejected the claim, and the disputed claim was duly referred under, the statute with the approval of the surrogate.

The referee after a trial reported in favor of the plaintiff, for the sum of $300, and interest on that sum from August 1, 1865, amounting in all to the sum of $787, for which he directed judgment. There was some conflict in the evidence offered by the defendant tending to show that the testator had paid plaintiff this money in his lifetime, but this evidence was met by evidence of declarations and admissions of testator not long before his death that he owed the plaintiff.

On the whole case wq think the evidence justified the finding of the referee as to the receipt of the money, and also that the same remained unpaid by the testator -at the time of his death. The appellant insists that the claim presented, disputed and referred is not the one litigated before the referee, and that the claim as presented was barred by the statute of limitations; but no objection was made at the time the claim was presented, or at any time on the trial, that the claim was barred by the statute, and as the claim presented was one of present indebtedness that question was one to be determined on the trial.

On the trial it was insisted, not that the claim was barred by the statute of limitations, but that the common law presumption of payment attached. The technical bar of the statute of limitations does not seem to have been relied upon before the referee, but the fund in the hands of testator seems to have been treated by the parties as a trust, and the presumption of payment from lapse of time been relied upon.

That presumption may always be overcome by evidence, and the question whether in g given case it has been overcome is a question of fact when there is evidence offered to rebut such presumption. In this case the plaintiff seeks to overcome the presumption of payment by proof that a short time before the death of the testator and at various other times he admitted that he held this money to keep for the plaintiff and that he had told the plaintiff that he would make provisions for its payment in his will.

If such arrangements existed between the plaintiff and testator, then the money could not have been recovered by the plaintiff in the lifetime of the testator without first making a demand, and as no demand was proved the money never became due in the lifetime of testator so that the. statute of limitations would run against the claim, and if, by the voluntary act and agreement of the trustee and cestui que trust, payment was postponed until the ■death of the testator, then the common law presumption of payment would be rebutted, and the demand would still be a valid subsisting demand.

The evidence in this case on the part of the plaintiff supports ■this theory, and although it was contradicted on the part of the defendant, the disputed question of fact was one for the referee, wdiose determination in this case is not wholly unsupported by evidence, and cannot on this appeal be disregarded or set aside.

This was not a trust created by operation of law, but created by agreement of parties, and no presumption can be relied upon to overthrow this conventional agreement of the parties. Purdy v. Sistare, 2 Hun, 126.

But' the case shows that the testator agreed to account for and satisfy this trust fund by a provision in favor of the plaintiff in his will, and as by the terms of his will be bequeathed to the ■plaintiff $100, we think that amount should have been deducted from the amount found due to the plaintiff.

It is also insisted by the defendant that the referee should have allowed a claim made by him on the hearing for the support of .plaintiff’s child by the testator. There is nothing in the case showing that the testator ever contemplated making any such •charge, but on the contrary it appears that the child was taken and kept by him at the solicitation of his wife, and it is manifest, in the absence of any express agreement to the contrary, that testator intended to and did stand in loco parentis to this child without any intention or expectation of charging its father for its support, and we think that the law under such circumstances raised no implied promise on the part of the father to pay for such support.

It is also urged that the evidence given by plaintiff relating to his sending of money to William J. Harding was error.

It is difficult to see, upon principle or rules of evidence, how this testimony can be competent. If it be regarded as' a communication with a third person, not a party to the action, it was incompetent as hearsay, and the declaration of a party in his own favor. If a communication between the parties to the action, then it is clearly subject to the objection made to it under § 829.

But this evidence relates chiefly to the amount of money sent by plaintiff to Harding, to be delivered to testator, and that fact was fully proved by other competent evidence, with which the report of the referee fully agrees. . This evidence, therefore, could not change the result, and was not followed by the referee, and this court can, therefore, sec that no harm was done to the defendant by its reception. Roberts v. Johnstown Bank, 38 St. Rep., 564; Brooklyn City Bank v. Dearborn, 20 N. Y., 246; Matter of Application of N. Y. C. & H. R. R. R. Co., 90 id., 842.

Again, the objection to this evidence was too general to raise the question that it was hearsay, and we do not think that it tended to prove a personal transaction.

It was primarily a transaction between plaintiff and Harding, and not one between plaintiff and defendant Holcomb v. Holcomb, 95 N. Y., 316. We think it was error not to deduct the §100 bequeathed in the testator’s will to plaintiff, and the judgment must, for that reason, be reversed and a new trial ordered, costs to abide the event, unless the plaintiff will stipulate to deduct $100 and interest on that amount from the time of probate of the will. If that is done the judgment must be affirmed, but without costs of this appeal in favor of either party as against the other. Code of Civ. Pro., § 1317; 64 N. Y., 272; 54 id., 221.

. Order to be entered in accordance with above conclusion.

Putnam and Herrick, JJ., concur.


author: Putnam, J.

text:
    Jens Kaare, Resp’t, v. The Troy Steel & Iron Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Master and servant—Negligence.
    Plaintiff was injured while wheeling wood on a wheelbarrow along a platform by the overturning of. the barrow, which he testified was caused by a hole in one of the planks which had been in that condition for two weeks. The place was dimly lighted and plaintiff and other workmen objected to going on the platform in the night, but defendant's foreman ordered them to do so. Held, that if the facts were as stated by plaintiff the jury were justiMed in finding that the. accident was caused by the negligence of defendant in failing to provide its employees a safe place to work in.
    3. Same—Assumption op risks.
    The doctrine that a servant cannot recover on account of an accident caused by a defect of which he had knowledge and the risk of which he voluntarily assumed does not apply to cases where the defect is caused by an employer’s neglect to make proper and reasonable repairs.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion to set aside the verdict and for a new trial.
    Action to recover for personal injuries alleged to have been caused by defendant’s negligence.

      Smith & Parmenter (R. A. Parmenter, of counsel), for app’lt; Smith & Wellington (G. B. Wellington, oí counsel), for resp’t.
   Putnam, J.

The plaintiff was an employee of the defendant’s arid on the night of June 12, 1887, while wheeling wood on a platform from a car to defendant’s boiler room, the wheelbarrow he was using tipped over, falling to the ground, carrying plaintiff with it and severely injuring him.

The plaintiff claims that the accident was caused by a defective plank. He states that the plank was worn down ; had a splint in it; that there was a kind of hole in which the wheel ran and that this caused the barrow to be overturned; that the defective plank had been in that condition for two weeks. Plaintiff also claims that the lights were defective and that he and other workmen objected to going on to the platform in the night time, but they were ordered to do so by Mr. Stevenson, defendant’s foreman.

The plaintiff is his only witness as to the facts showing negligence on the part of the defendant and is contradicted by a number of witnesses, and on examining the evidence I ha"ve entertained doubts whether the court ought not, under the circumstances, to have granted defendant's motion for a new trial on the ground that the verdict was against the weight of evidence.

But the learned judge who presided at the trial of the case, who heard all the witnesses sworn and who saw them when they .gave their testimony, was of opinion that the evidence given justified the submission of the case on the question of negligence to the jury and that such evidence was sufficient to sustain the verdict, and his view as to the evidence bearing on the questions of fact involved in the case is entitled to great respect. It is only in ■exceptional cases that the decision of the judge presiding at the trial of an issue of fact in a case where there is conflicting evidence, on a motion for a new trial, will be disturbed by the court on appeal.

It will be remembered that the plaintiff testified positively to a defect in the planlc which he described and which he stated caused the accident, while the defendant’s witnesses merely testified that -they did not see the defect spoken of by the plaintiff. The testimony of the plaintiff and defendant’s witnesses is not necessarily ■contradictory. The defect in the plank may have existed and have been observed by the plaintiff, and may not have been noticed by the defendant’s witnesses.

In a recent case, Round Lake Association v. Kellogg, a similar question arose. One witness, the defendant, testified to a state of facts which was contradicted by four or five witnesses. The court at special term denied the motion for a new trial and his decision was sustained by the general term of this district. 34 St. Rep., 407.

As above stated, the cases are unusual where the general term on an appeal, there being a conflict of evidence and the case having been fairly tried and submitted to the jury, and a motion for a new trial having been denied by the trial judge, will- grant a new trial because-the number of witnesses on the part of the appellant on a question of fact exceeded the number of witnesses sworn on the part of the respondent. See Hickinbottom v. D., L. & W. R. R. Co., 15 St. Rep., 12, 13; Finney v. Callaudet and Fitch Jr., 19 id., 924-925; Cheney v. N. Y. C. & E. R. R. R. Co., 16 Hun, 420; Langlois v. Hayward, 36 St. Rep., 59.

In this case also it must be remembered that although the plaintiff is an interested witness, yet the witnesses on the other side were employees of the defendant, and that their testimony may properly have been regarded by the jury with some suspicion. This is especially a case where the credit to be given to the witnesses on each side, under circumstances, was a question for the court and jury who saw and heard the witnesses testify.

I think, therefore, that the verdict of the jury on the question of fact as to the negligence of the defendant should not be disturbed, and that the decision of the trial judge in that regard should stand.

If, as the plaintiff testified, there was a hole in the plank which had remained there two weeks, and of which defendant’s superintendent had actual notice, the jury was justified, from such a state of facts, in finding that the accident was caused by the negligence of the defendant in failing to provide for the plaintiff and other employees a safe place to work in.

It is well settled that the employer must furnish his servants with a reasonably safe place to work in, and failing to do so he becomes liable for an injury caused by his neglect. Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 368; Freeman v. Glens Falls Paper Mill Co., 39 St. Rep., 623.

As to the question of plaintiff’s contributory negligence, it is well settled that only in very exceptional cases can such a question be taken from the jury. Ho citation of authority is necessary as to this doctrine. In this .case it is clear that the question as to plaintiff’s contributory negligence was one of fact, to be submitted to the jury. The plaintiff testified that the lights were poor; that he could not see the hole in the plank; that he could not see ahead of him. As to whether plaintiff exercised proper care or not under all the circumstances, was a question upon which different persons might come to different conclusions. Evidently this was not one of those exceptional cases where negligence on the part of the plaintiff was clear, and where the question should be taken from the jury by the court and decided as a matter of law.

I therefore reach the conclusion that the court properly denied the motion for a new trial on the ground that the verdict was contrary to the evidence on the question of the negligence of the defendant and plaintiff’s freedom from contributory negligence.

The most serious question in the case is whether the plaintiff, an employee of defendant, and knowing, as he testifies, of the defective plank, did not voluntarily assume the risk he ran in consequence of the defect, so as to preclude his recovery.

It is suggested by plaintiff that no such claim was made by the defendant upon the trial, and hence that it cannot be considered now. I will, however, consider the question, assuming that the defendant is in a position to raise it.

It is held that a master owes the duty to his servant of furnishing him a place safe to work in, and that the rule that the servant takes the risk of the service presupposes that the master has performed the duties of caution, care and vigilance which the law casts upon him. It is those risks run which cannot be obviated by the adoption of reasonable measures of precaution by the master that the servant assumes. Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 376; Booth v. Boston & Albany R. R. Co., 73 id., 40; Freeman v. Glens Falls Paper Mill Co., 39 St. Rep., 625.

The plaintiff did not assume the risk caused by the defendant’s neglecting to exercise proper care to make the platform a safe place to work. That was a risk that could be obviated by the adoption of reasonable measures of precaution by the master. Of course, if the plaintiff recklessly and carelessly exposed himself to injury in consequence of the defective plank, if he was guilty of contributory negligence, he could not recover. But that question, as we have seen, was for the jury. The doctrine that a servant cannot recover on account of an accident caused by a defect of which he had knowledge, and the risk of which he voluntarily assumed, does not apply to cases where the defect is caused by an employer’s neglect to make proper and reasonable repairs. It applies where the defect is incidental to the business and is nob caused by neglect on the part of the master. If such a defect, existing on account of the negligence of the master, causes an accident the servant may recover unless the facts of the case show that, knowing the defect, he had unnecessarily or carelessly exposed himself to injury.

Again, it has been held that although the servant knew of the defect in the place where he works which caused the injury, that if the master, by interfering with the servant or coercing him to expose himself to the danger or in any way contributes to the injury, he is liable. Kain v. Smith, 25 Hun, 149; 89 N. Y., 385; Gibson v. Erie Railway Co., 63 N. Y.,453.

In this case there was proof that the plaintiff and other workmen objected to going on to this platform. That they claimed it was not safe, and that the defendant’s superintendent ordered them to do so.

. The authority that most nearly supports defendant’s contention is the case of Powers v. N. Y., L. E. & W. R. R. Co., 98 N. Y., 278. In that case, however, the fact appears that the deceased knew the defect of the hand car and voluntarily used it. He made no complaint or objection and gave no notice to the railroad company that he deemed the car unsafe. In that important regard that case differs from this. Here there was evidence, which the jury doubtless believed, that the defendant’s agent was notified that the plank was unsafe. Plaintiff testified that he r told Mr. Cooper, the “head boss," that the place was unsafe; that it was in bad condition. He asked Cooper if something could not be done for it. It was dangerous, particularly in rainy weather. Plaintiff testified that he and other men objected to going on the platform at night. That the platform was not in condition to go on at night. It will therefore be seen that this case differs from the Powers case supra. In that case the fact that the injured party used the machine without objecting and without notifying the agents of the corporation of its unsafe condition was evidently deemed important. And see Lanina v. N. Y. C. R. R. Co., 49 N. Y., 536.

On the whole, although the case is a close and doubtful one, I think there should be an affirmance of the judgment, with costs.

Mayham, P. J., and Herrick, concur.


text:
    John W. Van Dyke, App’lt, v. George D. Clark, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Statute of frauds—Contract for service of stallion.
    A contract for the services of a stallion, by which its owner is to take in payment a colt, to be chosen by him from among those raised from the mares served, such choice to be made when they are four months old, is void under the statute of frauds, as an agreement not to be performed within a year.

      2. Same.
    In such case the remedy of the owner of the stallion is on quantum meruit for its services.
    3. Same—Pleading.
    In an action of replevin it is not necessary for defendant to plead the statute of frauds in order to avail himself of it on the trial.
    Appeal from a judgment of the Essex county court,reversing the judgment of a justice of the peace in an action to recover a chattel
    The plaintiff, Van Dyke, owned a stud-horse, and the defendant some breeding mares. After the defendant had declined having the services of the stallion, saying that he would not pay such prices as were asked, it was shown on the part of the plaintiff that it was then orally agreed between the parties on the 3d day of May, 1885, that the plaintiff should serve six of the defendant’s mares to plaintiff’s stallion, and as pay for the services of said stallion the said plaintiff was to have his choice of the colts raised from the six mares, that choice to be made by the plaintiff when the colts were four months old, and all mares not proving with colt were to be re-served to plaintiff's stallion the next year or season without making any charge therefor, the mares and colts to remain in the possession of the defendant until the plaintiff made his choice in the colts when four months old, as agreed upon. This was the agreement as testified to by the witnesses on the part of the plaintiff, and by virtue of which he claimed title to the property in question.
    On the above terms, it is claimed on the part of the plaintiff, that the six mares were served to the stallion at different times during the season of 1885, as follows: One May 3d, one May 19th, one May 20th, one May 22d, and one June 20th, and tliiat the following May and June, 1886, three of the mar’es had colts, and the others had none, the colt in question being foaled May 17,1886.
    When the colt in question was four months old, or just before the action was commenced in November, .1886, the plaintiff notified defendant of his choice in the colts, and demanded the same, which the defendant refused to deliver, and the plaintiff then brings this action in replevin.

      Robert Dornborough, for app’lt; John H. Cunningham, for resp’t.
   Putnam, J.

I think the contract under which plaintiff claims title to the colt in suit was, within the statute of frauds, an agreement not to be performed within a year. The period of gestation in mares was shown to be ordinarily eleven months. / After that period four months must elapse under the contract before plaintiff could select a colt. Therefore the agreement required fifteen months for its performance; fifteen months before the plaintiff could demand the possession of or acquire title to the colt.

The ease of Lockwood v. Barnes, 3 Hill, 128, applies, and see Kellogg v. Clark, 23 Hun, 396.

In Lockwood v. Barnes, it is held that although performance is to begin and does in fact commence within a year, yet if the contract is not to be completely executed within the year it is within the statute. And the cases cited in Note “B ” at page 130 fully sustain this doctrine. In Broadwell v. Getman, 2 Denio, 87, it is held that a contract not to be completely executed within a year is void, although one of the parties is to perform everything on his part within the year, if a longer time is stipulated for performance by the other.

In this case the agreement was no more an executed one than in the case of Lockwood v. Barnes, supra. I think that the cases of McKenna v. Bolger, 17 St. Rep., 102; Springer v. Bien, 32 id., 65, and other cases cited by plaintiff, are not in conflict with Lockwood v. Barnes, supra. Those cases so cited by plaintiff do not hold that a contract void by the statute of frauds can be enforced, but that where such a contract has been fully performed a plaintiff may recover for the work done or property delivered under such contract. So, in Lockwood v. Barnes, supra, it was held that defendant refusing to go on with the agreement must pay for the use of the horse. See Galvin v. Prentice, 45 N. Y., 162.

So in this case the plaintiff is not without a remedy. He can recover of the defendant on a quantum meruit the value of the services of his horse.

I do not consider the point raised by defendant, that irrespective of the question of the statute of frauds the title to the colt which the plaintiff seeks to recover under the contract did not vest, in the plaintiff so that he could maintain the action.. Comfort v. Kiersted, 26 Barb., 472.

In an action of replevin it was not necessary for the defendant to plead the statute of frauds in order to avail himself of that defense upon the trial. All that was necessary or proper for the plaintiff to state in his complaint was that he was the owner of the colt, and that it was in the possession of the defendant, who refused to surrender it. The defendant, under a general denial, could put the plaintiff to proof of his title, and could show any state of facts on the trial that would disprove such title. He could doubtless show that the contract under which the plaintiff claimed was void. Amburger v. Marvin, 4 E. D. Smith, 393.

The judgment should be affirmed, with costs.

Masttam, P. J., and Herrick, J., concur.


author: Herrick, J.

text:
    Mary Van Ostrand, Resp’t, v. The Walkill Valley Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Railroad—Negligeucb—Fires.
    Whether a railroad, in cutting and leaving by the roadside a quantity of grass and brush exposed to the danger of fire from its passing engines, is guilty of negligence, is properly a question for the jury.

      Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action for damages caused by two fires started on the lands within defendant’s lines by a passing train and which extending to plaintiff's land, burned grapevines and fruit trees. There was evidence to show that defendant had previously cut the grass along the track and also brush, which it permitted to remain in the vicinity of tire track; that the brush took fire from the sparks of a passing engine and communicated to plaintiff’s land.
    The court charged the jury that if they found that such conduct, on defendant’s part was negligent, and that the fire was caused by reason of it and could not otherwise have occurred, and was communicated from this pile of brush to plaintiff’s lands and did this damage, plaintiff was entitled to recover.

      Ashbel Green, (F. L. Westbrook, of counsel), for app’lt; J. E. Hardenbergh, for resp’t.
   Herrick, J.

The issue in this case, as submitted to the jury, turned upon the question of the negligence of the defendant in cutting and leaving by the roadside a quantity of grass and brush exposed to the danger of fire from its passing engines. Whether that was negligence or not was a question for the jury

The only cause of action submitted to the jury was the fire of July 6th, caused by the dry grass and brush before referred to taking fire, and such fire spreading to the plaintiff’s premises. That cause of action was fairly presented to the jury. Many of the exceptions taken were in regard to evidence relating to the fire of July 16th, upon which the plaintiff was non-suited; the other evidence in the case to which exceptions were taken does not seem to me to have prejudiced the defendant.

The judgment should be affirmed.

Mayham, P. J., and Putnam, J., concur.


author: Per Curiam.

text:
    The People ex rel. Jehiel B. White, Sheriff, App’lt, v. The Board of Supervisors of Clinton County, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Sheriffs—Fees—Interest.
    Until a sheriff’s account is presented to the board of supervisors no interest thereon is allowable.

      2. Same—Arraignments.
    Charges for arraignments of prisoners in courts of special sessions and recorder’s courts are unauthorized by statute, and cannot legally be allowed.
    3. Same—Care of court house.
    It is a sufficient answer to a charge for taking care of the court house that a janitor is employed for that purpose at a salary.
    Certiorari to review the decision of the board of supervisors in disallowing portions of the accounts of relator, as sheriff, for the years 1890 and 1891.

      Weeds, Smith, & Conway (T. F. Conway, of counsel), for app’lt; Shedden & Booth (L. L. Shedden, of counsel), for resp’t.
   Per Curiam.

The return made by the board of supervisors must be taken by us as a true statement of the facts of the case. People ex rel. Sims v. Fire Com'rs, 73 N. Y., 437; People ex rel. McCarthy v. French, 25 Hun, 112.

This return seems to dispose of relator’s objections to the action of the supervisors.

The relator was not entitled to be allowed the item in his account of $117.91 interest. The return shows that the relator’s account for 1890 was not presented for audit until December, 1891. Until presented, no interest was allowable. McMaster v. State, 108 N. Y., 557, 558; 13 St. Rep., 674.

It was not error for the supervisors to reject the charges in relator’s account for arraignments. It appears by the affidavit of Tierney, referred to and made a part of the return of the supervisors, as well as by the return itself, that those charges were for arraigning prisoners in courts of special sessions and recorder’s courts, and not in courts of oyer and terminer or general sessions. We are not referred to any provisions of the statutes allowing such charges for arraignments as were made by the sheriff and rejected by the supervisors. 'See Civil Code, §§ 3307, 3280.

The board could not legally allow such charges, the same being unauthorized by any statute. In re Tinsley, 90 N. Y., 231.

If former boards had been accustomed to allow such illegal charges, that was no reason why such a violation of the law should be continued.

The return of the defendant shows that the supervisors were authorized to make the reduction in relator’s charges for board of prisoners mentioned in the petition. It states that the supervisors did allow relator “ at the rate of 60 cents per day for the time said prisoners were actually boarded by said sheriff according to the best knowledge and information obtainable from the said sheriff or his account presented to said board as to the time said prisoners were actually boarded. . * * * Said sheriff’s committee did not act arbitrarily and without evidence in auditing or passing upon said account or any part or item thereof, but, on the contrary, intended to and did act with fairness to the said sheriff, informing him of the course we were pursuing with his account, and invited him to assist the sheriff’s committee by presenting law that said committee might understandingly, intelligently and fairly pass upon and audit his said account, and when said sheriff’s committee reduced the said account for board of prisoners, that it did so only to the amount and at the rate of sixty cents per day for each day’s board actually had, the said sheriff having charged for a longer period than the actual time that board was furnished by the said sheriff, and said relator so admitted and stated to the sheriff’s committee, and while auditing said account * * * and that said sheriff’s committee in passing upon said account and in reporting thereon allowed the relator for board actually furnished as near as said committee could do so from all information furnished them by the relator in his account and upon said statement and admission said reduction was made.”

We think that this return shows that the audit of the supervisors as to the items in question, made after a personal conference between the committee of the supervisors and the relator and upon the statement and admission of relator, shows a fair audit of said items and is a complete answer to the objections made by relator to the action of the board.

The return also shows as to the item, of $120 claimed by relator for taking care of the court house, that a janitor was employed for that purpose.at a salary of $300 per annum.

We think that the writ of certiorari should be dismissed, with costs to be paid by relator.

Mayi-iam, P. J., and Herrick, J„, concur.


text:
    Seneca Bullock, Resp’t, v. The Town of Durham, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Towns—Negligence—Laws 1890, chap. 568.
    Section 16, of chapter 568, Laws 1890, requiring the presentation to the supervisor of claims for damages from defects in highways and bridges, does not apply to a cause of action which accrued before the act took effect.

      % Same—Absence of guards to bridge—Notice.
    Plaintiff was injured by reason of the absence of a guard or railing at the side of a bridge. The bridge had been in this condition for four years. Held, that a sufficient time had .elapsed to charge the commissioners of highways with notice of the defect.
    3. Same—Want of funds.
    The burden is upon the defendant to prove a lack of funds to repair or power to obtain them; the plaintiff is not required to show a sufficiency of funds or the existence of such power.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      A. C. Cowles and Frank H. Osborn, for applt; William S. Russell and Frank S. Becker, for resp’t.
   Herrick, J.

This is an appeal from a judgment in favor of the plaintiff against the defendant in an action brought to recover damages for injuries received by the plaintiff on the 14th day of August, 1890, by reason of the negligence of the defendant or its commissioner of highways in leaving a bridge, upon or composing part of one of the highways in said town, without any guard or barrier at its sides or edges. The plaintiff was driving across said bridge, when for some reason his horse became unmanageable and backed the carriage containing plaintiff off the side of the bridge; he fell several feet and was severely bruised and injured.

The action was commenced March 21, 1891.

The defendant claims that the plaintiff ought not to maintain this action, and that the judgment should be reversed, because, as it alleges, no verified statement of plaintiff’s claim was ever presented to the supervisor of the defendant before the commencement of »the action ; that plaintiff’s cause of action is barred by the statute of limitations as to such actions, and that there is no evidence that the commissioner of highways of the defendant had any notice of the defect, or had any funds in his possession or under his control which could be applied by him to remedy the defect in the bridge.

Section 16 of chap. 568 of the Laws of "J 890, which took effect March 1, 1891 (see §183), reads as follows: “ Every town shall be liable for all damages to persons or property, sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of said town. Mo action shall be maintained against any town to recover such damages, unless a verified statement of the cause of action shall have been presented to the supervisor of the town within six months after the cause of action accrued; and no such action shall be commenced until fifteen days after the service of such statement.”

The defendant claims that the plaintiff’s right of action was subject to the provisions of this statute, and by failing to comply with it he is barred by its terms.

The act, as we have seen, was to take effect March 1, 1891; the accident occurred August 14, 1890; plaintiff’s right of action accrued .then; it was obviously impossible for him to present his claim at any time after March 1st, and at the same time within six months after the happening of the accident; and to hold that he has no right of action because he has thus failed to comply with the statute, is to take from him a right of action that had accrued prior to the taking effect of the statute.

An act of the legislature is not to be construed retrospectively so as to take away a vested right. Dash v. Van Kleech, 7 Johns., 477; Watkins v. Haight, 18 id., 138; Sayre v. Wisner, 8 Wend., 661; Mongeon v. People, 55 N. Y., 616; Fitzpatrick v. Boylan, 57 id., 437; N. Y. & O. M. R. R. Co. v. Van Horn, id., 477.

It will not be construed to operate upon existing rights or liabilities without it in express terms expresses such intention. Johnson v. Burrell, 2 Hill, 238; People v. Green, 58 N. Y., 295—304.

Where an act required all claims for damages or injuries because of defective streets to be presented to the common council within three months after the happening of the injury, it was held not to apply to a case where the injury happened before the passage of the act. Williams v. Oswego, 25 Hun, 36.

Although the words of a statute are so broad and general as in their literal sense to comprehend existing cases, they must yet be construed as applicable only to such as may thereafter arise, unless the intention to embrace all is plainly and unequivocally expressed. Berley v. Rampacher, 5 Duer, 183; McCahill v. Hamilton, 20 Hun, 388; Bay v. Gage, 36 Barb., 447; affirmed in 15 N. Y., 595.

I do not think that the fact that the act in question was passed in June, 1890, to take effect March 1, 1891, in any way affects the question; so far as its effect upon the questions raised here is concerned it is to be construed as if it was passed March 1, 1891. It was then and not till then that it became a law, and effect is to-be given to it only from that time.

For these reasons I think the plaintiff’s 'cause of action was not subject to the statute in question, and that he was under no obligation to present his claim to the supervisor.

The other reasons given for defeating the plaintiff, that there is no evidence that the commissioner of highways had any notice of the defect or had any funds in his possession or under his control which could be applied by him to remedy the defect, I do not think are valid. The bridge had been without any side rails,, barriers, or guards, for over four years. It had been in that condition a sufficient length of time to be notice to the commissioners of highways of the town, and the one in office at the time of the accident, which it will be recalled was August 14th, was elected in March of the same year. I do not think it necessary that it should be the neglect of the particular commissioner in office at the time of the accident, in order to make the town liable, nor that it is necessary that notice should be shown to have been received by him, but even if it were so necessary, the one in office-at this, time had been in long enough to have constructive notice of the condition of the bridge in question, that condition having existed from the beginning of his term of office. And as a matter of fact it appeared upon the defendant’s case that he knew of it when he came into office.

In Clapper v. Town of Waterford, 43 St. Rep., 316, the court of appeals held that it was always a defense to an action for damages against a commissioner of highways for injuries sustained in consequence of a defective highway, to show that he was without the necessary funds to make the repairs and without the power to-raise such funds. If it is a defense, then it is incumbent, upon the-defendant to establish such lack of funds or power to obtain them; not for the plaintiff to show a sufficiency of funds or power to-obtain them.

In this case the defendant sought to show that the commissioner in office at the time of the accident was not in possession of funds to remedy the defect The question of the sufficiency of funds or power to obtain them is a question of fact, and upon examining the evidence in the case I fail to see that the defendant has made out such a defense.

The commissioner of highways stated upon his examination that prior to the accident he received $200 from the supervisor, $100 in March and $100 in April, which he expended’ in repairing other bridges; that he had a right to do, and the manner in which he exercised his discretion in that respect cannot be questioned; but it does not appear that he had no power to obtain any more money, or that he even made the attempt. He says he had an impression that there was no more money, but he made no-effort to find out, yet on the 22d of August, after the accident, he received $100 more from the supervisor, and the jury might well infer if he could get it so soon after the accident that he could have gotten it before and made the bridge safe.

Other evidence was given by the plaintiff as to the possession of money by prior commissioners that it is unnecessary to discuss. I can see no sufficient reason for a reversal of the judgment.

Let the judgment be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.