text:
    THE LACUSTRINE FERTILIZER COMPANY, Appellant, v. LAKE GUANO AND SHELL FERTILIZER COMPANY AND SILAS M. STILWELL AND SILAS M. STILWELL, Jr., Respondents.

      J?iles of marl on land — when treated as personal prope^’ty — exception of, in a conveyance of land — when the right to remove them ceases — when the party conveying is estopped from subsequently claiming them.

    'In 1856, one Torrey was the owner of a tract of land, through which a cutting had been made, and upon the sides of which had been thrown up large piles of “marl,” a substance valuable for its fertilizing qualities. In 1865 Torrey sold the land to one Spalding, excepting from the conveyance the said beds and deposits of marl, the conveyance providing “ that the said marl may remain on said land for the period of ten years from the date of this indenture, and that the party of the first part (meaning the said Torrey) may, at any time, within the said ten years, remove a part or the whole of the said marl.” On July 23, 1866, Torrey made an absolute conveyance of the marl to one Barnum, “ to have and to hold to the said Henry A. Barnum, his heirs and assigns, executors and administrators forever,” the instrument containing a covenant of warranty “ against all and every person whomsoever. ” Barnum tookpossession of the marl, removed portions thereof and subsequently conveyed the remainder thereof to the plaintiff’s grantor. In January, 1869, Torrey again became the owner in fee of all the land theretofore conveyed to Spalding, and held the same until his ' death, in December of that year. Thereafter, the defendant Stilwell, knowing of the existence of the Barnum title to the marl, purchased the land on which it was piled from the heirs and devisees of Torrey, and, thereafter, conveyed the same to the defendant corporation who, at the time of the commencement of this action, held pdssession of and claimed to own the land and the marl thereon.
    In an action by the plaintiff to recover the marl, with damages for its wrongful detention, held

    (1.) That as between Torrey and his grantees the piles of marl were to be treated as personal property.
    . (jjh) That as between Torrey and Spalding, the right to remove the marl would have ceased at the expiration of ten years; after which the marl would have vested in Spalding, as though never excepted from the deed.
    • (A) That the fee to the land having re-vested in Torrey, he, his heirs and assigns were estopped from claiming- the marl, as against Barnum and his assigns, by his conveyance and the covenant of warranty therein contained.
    ' (4.) That a complaint alleging the above mentioned facts stated a cause of action.
    ■ (5.) That if the defendant corporation claimed as a bona fide purchaser the facts establishing its rights should be averred, and would not, on demurrer, be presumed to exist.
    Appeal from a judgment, entered on an order sustaining separate demurrers to the complaint, interposed by the defendants.

      F. L. Manning & H. S. Bennett, for the appellant.
    This marl was personal property, and was treated as such. (Smith y. Benson, 1 Hill, 176; Mott v. ComstooJc, 1 Comst., 564; Goddard y. Could, 14 Barb., 662 ; Hillard oh Real Property, chap. 1, § 1828, cascs'there cited; Ford v. Cobb, 20 N. Y., 344; Sheldon y. Edward, 35 id., 279; Mclntire v. Barnard, 1 Sand. Chan., 52; Gillespie v. Stevens, 13 Gray, 146; Ewell on Fixtures, 45,; Bank of Lansingburgh v. Cary, 1 Barb., 542 [1847] ; Davis v. Emery, 61 Me., 140 [1870] ; Iloit v. Stratton Mills, 54 N. H., 110 [1873]; Sterling v. Baldwin, 42 Vt., 306, 310 [1869] ; Shaw v. Carboy, 13 Allen, 462 [1866] ; Nelson v. Nelson, 6 Gray, 385 [1856] ; Sheldon v. Edwards, 35 N. Y., 279; Patti v. Cromwell, 40 id., 287 ; Burk v. Hollis, 98 Mass., 55 [1867] ; French et al. v. Freeman, 43 Yt., 93.) If the conveyance from Torrey to Barnum was valid and binding upon those parties, it is equally valid and binding upon the parties to this action. If Torrey, while living, could not have avoided it, then his heirs and devisees are equally powerless to avoid it. .(Jackson v. Bull, 1 Johns. Cas., 81; Jackson v. Murray, 12 Johns., 201; Van Horn v. Crane, 1 Paige, 405; Jackson v. Howder, 4 Johns., 202; Jackson v. Bush, 10 id., 223; Jackson v. Humrun, 10 id., 292; Mosely v. Mosely, 15 N. Y., 334.)

      John Cummins, Josiah T. Miller and H. C. Gardiner, ‘for the respondents.
    This excavated soil or marl was part and parcel of Torrey’s land. It was land. (Bouvier’s Law Dictionary; 1 Washburn on Real Property,.3; Blewitt v. Tregonning, 3 Adol-., phus & Ellis, 554; 30 Eng. Com. Law, 260; Dearden v. Evans, 5 Meeson & Welsby, 11; Wintermute v. Light, 46 Barb., 278: Tyler on Fixtures, 104, 105 ; Miller v. Plumb, 6 Cow., 665 ; SnedekerY. Warring, 12 N. Y., 170; Goodrich v. Jones, 2 Hill,, 142; Middlebrook v. Corwin, 15 Wend., 169; Bishop v. Bishop, 12 N. Y., 123; Evans v. Turnbull, 2 Johns., 313; 2 Kent’s Com., 360, 361; Fryatt v. The Sullivan Company, 5 Hill, 116— 118; affirmed, 7 Hill, 529; BrackettY. Goddard, 54 Maine, 309.) To make soil personal property, it must be clearly and distinctly separated from the land by the owner, with that intent, at the time of separation. (Lampión v. Preston, 1 J. J. Marsh [Ky.], 454; Tyler on Fixtures, 115; Wash, on Easements [3d. ed.], 409; '3 Wash, on Real Prop. [3d. ed.], 59.) An exception in a deed is always to be taken most favorable for the grantee. {Johnson v. Hudson, 3 Johns., 375; Jackson v. Gardner, 8 id., 394; 5 N. Y., 33-40; Ives v. Van Auken, 34 Barb,, 566.) That the exception, as an exception, was void for uncertainty. (3 Wash, on Real Prop. [3d. ed.], 344; 37, side page 629; id., 345, § 38; 3 Wash., 350, § 39; id., 354; 1 Bouvier’s Dictionary; 2 id.) Torrey, on the 23d of July, 1866, had nothing to sell to Barnum, • for the reason that he had conveyed the land to Spalding in fee absolute, on the 6th day of January, 1865, and that the nature of the interest reserved by him, through the exception, was that of a license, and nothing more. (3 Wash, on Real Prop. [3d.,ed.],-376; .1 id., 542; 3 id., 376; McIntyre v. Bernard, 1 Sandf. Ch., 52; see, also, cases there cited; Rich v. Zeildorf, 22 Wis., 519; Reed v. Merrijield, 10 Metcalf’s Rep., 159.)
   Talcott, P. J.:

This is an appeal by the plaintiff from a judgment sustaining the separate demurrers of The Lake Guano, etc., Company and Silas M. Stilwell to the complaint of the plaintiff, which demurrers were upon the sole ground that the complaint does not state facts sufficient to constitute a cause of action.

The complaint is for the conversion of certain quantities or piles of “marl” situated and located upon certain lands in the county of Seneca, to which the defendants, The Lake Guano, etc., Company have acquired the title by means of certain conveyances thereof from the heirs at law of one Royal U. Torrey. The said' Royal U. Torrey was the owner of the land in which the said piles of- “ marl ” are located. In the year 1856, the State of New York, for the purpose of making a new cut for the Canandaigua outlet, had entered upon the said lands of Torrey and excavated across them a channel for the said new cut, and in the course of such excavation had thrown up on either bank of the said new cut certain piles of “ marl,” which were dug out of the soil of Torrey’s said land along the course of the said excavation.

And the complaint avers that the said piles of “marl” had, after their excavation and before the 6th day of January, 1865, been lying upon the land of Torrey, in conspicuous heaps or piles, and the marl was, in its nature and color, clearly distinguishable from the surface soil on which it rested, and was well known to have certain fertilizing properties which gave it a value additional to and distinct from the general soil’ and, in consequence of those properties, had been extensively used by farmers, and dealt in and transported as an article of commerce. That on the 6th of January. 1865, the said Royal U. Torrey, conveyed the land upon which those piles of marl were so located to one Henry C. Spalding, by deed, containing a conditional exception or reservation, in the following words, viz. : “And also excepting the beds and deposits of marl lying on both banks of the now cut for the Canandaigua river, which passes through said lands, and it is an express stipulation and agreement between the parties hereto that said marl may remain on said land for the period of ten years from the date of this indenture, and that the party of the first part (meaning the said Torrey) may at any lime, within the said ten years, remove apart or the whole of the said marl."

After the conveyance to Spalding, and on the 23d day of July, 1866, the said Torrey, by an instrument in writing under his hand and seal, made an absolute conveyance of the said marl to Henry A. Barnum, “his heirs and assigns, executors and administrators,” which marl was in and by the said instrument described as follows : “ All that certain bed or beds of marl in the town of Tyre, Seneca county, and State of New York, on Groat Lot 25, which wras excavated by the State of New York about the year 1856, for the purpose of changing the channel of the Canandaigua outlet or river from its, natural course or channel, near the Erie canal aqueduct, over the Seneca river.”

The said conveyance was made to have and to hold to the .said Henry A. Barnum, his heirs and assigns, executors and .administrators forever.” The said instrument also contained an express covenant on the part of the said Torrey for himself, his heirs, assigns, executors and administrators, to warrant and defend, to the said Henry A. Barnum his heirs, assigns, executors and administrators forever, the sale of the said marl made to said Barnum, “against all and every persons whomsoever.”

The complaint alleges notice to Stilwell of Barnum’s title to the marl, and that Barnum took possession of said piles of marl and removed a portion thereof, and from time to time thereafter negotiated for the sale of divers portions of said marl, and remained in possession of said marl until after the conveyances thereof to the defendants, the Stilwells, hereinafter mentioned.

That the said Royal U. Torrey, about January, 1869, again Became the owner in fee of all the aforesaid land and realty which had been conveyed to the said Spalding, and so held the same until his death in December, 1869.

That the defendants Stilwell, well knowing the existence of the title of Barnum, and learning the value of the said marl, secretly obtained from the heirs and devisees of said Royal U. Torrey, after his death, conveyances of the land on which the said piles of marl were located, and took possession of said piles of marl and excluded the said Barnum therefrom and from possession thereof, or access thereto, and subsequently organized the corporation known as the “ Lake Guano and Shell Fertilizer Company,” and thereupon conveyed the said tract of land to the said corporation, which now holds possession of the piles of marl located thereon, and “wrongfully detains the same from the plaintiff.”

That the plaintiff, The Lacustrine Company,' before the commencement of the suit, by virtue of conveyances from Barnum and his assignees, for a valuable consideration, acquired the title to all the said piles of marl, and thereupon became and now is the owner of the said marl and entitled to the immediate possession thereof. That since the organization of the said Lake Guano and Shell Company the plaintiff has demanded possession of the said piles of marl, and previous to the organization of said company demanded the same from said Stilwells, “ but all of the .said defendants have refused and still refuse to allow the plaintiff the possession thereof or access thereto,” and that by reason of the unlawful seizure and detention the plaintiff has been and is unable to take possession of its said property, and transport and market the same — and has been unable to market the same to the damage of the plaintiff of $20,000. That the said piles of marl contain about 100,000 tons, each ton being worth five dollars. And the complaint demands judgment against the defendants for the possession of the marl, or the value thereof, in case a delivery cannot be had, with $20,000 damages for the detention thereof.

All the foregoing facts are alleged in the complaint, and it seems to set forth, with some superfluous matter, a good cause of action, which was formerly known as replevin in the deiinet.

The marl in question was a part of the realty, and except for the reservation contained in the deed to Spalding, would have passed to him by the conveyance from Torrey.

The piles of marl, which.are the subject of the action, with their alleged condition, situation and qualities, together with the manner in which they were dealt with and concerning by Torrey and his grantees, show that they wore treated by them as personal property, and were, considered to be severed from the realty, and as between the parties to those contracts and their heirs the marl was to be treated as personal property severed from the real estate, and passing by any conveyance sufficient to pass an interest in personal property. As, in many cases timber, trees, and even buildings, as between the parties to such contracts, are to be treated as severed from the realty, and to become personalty pro hac vice. (See cases hereinafter referred to.) But under the limitation of the right of removal contained in the deed to Spalding, the exception of the marl, as between Torrey and his heirs and devisees, and Spalding would probably have terminated, at the expiration of ton years, from the date of the deed to Spalding, who, at the expiration of that time, would have taken the marl as though the same had been covered by his deed and not excepted therefrom, and the same would have vested in his heirs and assigns. (See Warren v. Leland, 2 Barb., 613; Pease v. Gibson, 6 Greenl., 81; Howard v. Lincoln, 13 Maine, 122; McIntyre v. Barnard, 1 Sandf. Chy. Rep., 52; Holton v. Goodrich, 35 Vt., 19; Reed v. Merrifield, 10 Metc., 159; Boisaubin v. Reed, 2 Keyes, 323; Kellum v. McKinstry, 69 N. Y., 264.)

But the deed to Spalding is alleged to have been made on the 6th of January, 1865, and the complaint alleges that in or about January, 1869, Torrey again became the owner, in fee, of the aforesaid lands and realty, except the marl, which ho had before conveyed to Spalding. That is, before the ten years had expired, so that Spalding would not have acquired any rights by reason of the limitation of the time during which the exception could operate. How Torrey became repossessed of the title is not stated, and probably was not important, as it is alleged that he became repossessed of the title in fee.

Torrey had conveyed the marl situated on each side of the new cut, on the surface of the ground to Barnum in perpetuity, and without any limitation of the time within which the same might be removed by Barnum or his assigns, and had conveyed with an express warranty of the title; and whatever rights would have resulted, to Spalding in consequence of the neglect to remove the marl within ten years, had Spalding so long remained the owner of the land and real estate, when Torrey, within the ten years, became reinvested with the title to the land, on the surface of which the marl had been deposited, from that time, Torrey and iiis heirs would have been estopped from claiming the marl in opposition to his covenant of warranty.

It seems that, in this case, on a motion to dissolve the injunction, Judge Westbrook delivered an opinion, reported in 51 How., 152. Judge Westbrook dissolved the injunction as .appears from his opinion, on the effect of the exception in the deed from Torrey to Spalding, and upon the ground that the marl not having been removed within the ten years, the right to remove the same had ceased, without noticing the fact that Torrey had within the ten years become reinvested with the title in fee, or alluding to the effect of Torrey’s covenant of warranty in the conveyance to Barnum.

We have been furnished with a copy of an order of the General Term of the first department, whereby the decision of Judge Westbrook was affirmed, but without any opinion by the first department. It would seem from the statement of the counsel for the plaintiff that the point of the reinvestment of the fee of the land in Torrey was not called to the attention of Judge West-brook, and we infer that the same was the case in regard to the argument of the appeal from his decision before the General Term of the first department.

However that may have been, on the argument of the appeal, in this case, we have been furnished with no sufficient reason for denying the applicability of the doctrine of estoppel, so far as the heirs and devisees of Torrey are concerned, and if the defendant’s claim that they purchased the land bona fide for a valuable consideration, and without notice of the severance of the marl from, the realty, or of the plaintiff’s title, such fact is to be averred by them, and is not to be presumed on demurrer.

If the conveyance of the marl to Barnum,. being in perpetuity and without any condition as to the time of removal, involved the right to occupy so much of the land as is covered by the piles of' marl forever, that right results from the contract of the parties, and cannot be remedied by the court.

It is claimed by the respondents that the contract between. Torrey and Barnum was a mere executory contract for the sale and purchase of the marl, but as set forth in the complaint it purports to be an executed contract of bargain and sale.

As the demurrers are upon the sole ground that the complaint, does not set forth facts sufficient to show a cause of action, we have not considered the formal defects, such as the want of a sufficient description of the piles of marl, etc. If the complaint be defective in formality, the defect is not reached by this demurrer.

As will be seen in the view we have taken of this case, we consider the averments concerning the exception in the deed from Torrey to Spalding as mere surplusage in the complaint, and in no wise material to the determination of the rights of those parties.

The judgment sustaining the demurrer to the complaint is reversed, and the demurrer overruled, and the defendants have leave to answer within twenty days after service of a copy of this-order, on payment of costs of demurrer and appeal.

Smith and Hardin, JJ., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Talcott, P. J.:

license: Public Domain

text:
    ELIZA A. STAUNTON, CAROLINE L. ELY AND ALMIRA E. BEERS, Heirs at Law and next of Kin of JOSEPH FIELD, Deceased, Appellants, v. WILLIAM J. PARKER, Respondent.

      Testimony of attending physician as to mental capacity of testator— when admissible-section 834 of the Code of Civil Procedure — An agreement to renounce the office of executor while the testator is liming— void.

    Probate of the second codicil of the testator’s will, by which the respondent was appointed one of his executors, was opposed by his three daughters and one other legatee, on the ground that he was incompetent to execute a will at the time of its date, and also on the ground of undue influence exerted by the
    - respondent. Upon the hearing, the contestants called the physician who had attended the deceased for eight years previous to his decease, for the purpose of showing that he was incompetent to make a will at the time of executing the codicil. The physician having stated that all his knowledge was derived from what he observed while he was attending the deceased professionally, his • evidence was excluded by the surrogate.

      Held, that the evidence was not prohibited by section 834 of the Code of Civil Procedure, as being information acquired while attending the deceased professionally and which was necessary to enable him to do so.
    That even if the prohibition therein contained were applicable, the contestants, as tlie personal representatives of the deceased, might waive it.
    An agreement by one who has been named as executor in a will, made, prior to the death of the testator, and contrary to his expressed wishes, by which, for a valuable consideration, he agrees to renounce the office, is void as against - public policy. :
    Appeal from a decree of the surrogate of Monroe county, admitting to probate the will of Joseph Field, deceased, and two codicils thereto.
    On the 20th day of April, 1876, Joseph Field made his will, devising about $450,000 in specific legacies, dividing the balance of his estate (estimated at about $1,000,000) among his three daughters, and nominated his said three daughters, and Mr. Joseph A. Eastman, as executors. On the 6th day of October, 1876, he added a codicil to this will, by which he directed the maimer in which certain of said legacies were to be paid, and the funds kept invested. On the 5th of October, 1878, he executed a second codicil to the will, by which he appointed William J. Parker as an additional executor. On the 16th of December, 1878, Mr. Parker, in the presence of two witnesses, subscribed a paper purporting to renounce his appointment as executor, and all right to act as such. At the same time, Mr. Field’s three daughters, Mrs. Beers, Mrs. Staunton and Mrs. Ely, executors named in the will, signed an agreement whereby, in consideration of Mr. Parker’s relinquishing the right to act as such executor, they promised that he should “be employed in the settlement of the estate, and should receive ample remuneration therefor.” On the 27th day of January, 1879, Mr. Field died, at the age of nearly ninety-two years. Mr. Field, before his death, had refused to revoke the appointment, as an executor, of Mr. Parker who, at the time of his appointment, had signified his acceptance of the trust. When informed of the proposed renunciation by Mr. Parker, Mr. Field vehemently opposed it. On the 31st day of January, 1879, Mr. Parker delivered to Mrs. Beers, Mrs. Staunton and Mrs. Ely, and on the 30th to the surrogate, a paper subscribed by him, purporting to retract the renunciation above referred to. On the 8th day of February, 1879, the will and first codicil were propounded by the executors therein named, and the second codicil by Mr. Parker, all of which were admitted to probate by the surrogate.

      Alfred Ely, JO. Cochran and E. Darwin Smith, for the appellants.

      John S. Morgan, for the respondent.
   Talcott, P. J.:

This is an appeal from the order of the surrogate of Monroe county, admitting to probate the will of Joseph Field, and a codicil thereto, dated October 6, 1876, and also a further codicil, dated the 5th of October, 1878, by which the respondent was appointed an executor. The testator died in January, 1879, at the age of ninety-three years. The appellants are the three daughters of the testator. The three daughters and one other legatee filed allegations against the proving of the second codicil, whereby the respondent was appointed one of the executors, on the ground that the testator was incompetent to make a will at the date of the second codicil, and alleging undue influence on the mind of the testator, whereby he was induced to appoint the respondent as one of his executors, and also alleging that the respondent is irresponsible and had executed a renunciation of such appointment prior to the death of the testator. And the appellants appeal from so much of the decree of the surrogate as establishes and admits to probate the second codicil.

On the hearing before the surrogate, Dr. Joseph A. Biegler was called as a witness by the appellants, for the purpose of establishing the fact that the testator was of unsound mind andincompetent to make a will at the time of the execution of the second codicil. He had been the attending physician of the testator for eight years previous to the decease of the latter. The examination was interrupted by the counsel for the respondent, in reply to whom he said that what he knew of the condition of Mr. Field was derived from what he observed while he was his attending physician, and that his opinion in regard to the health of Mr. Field was based solely on what he observed while his attending physician.

The respondents’ counsel objected to the testimony, under section 834 of the Code of Civil Procedure, and it was excluded by the surrogate. It is assumed that the appellants sought to give evidence, by the testimony of Dr. Biegler, of facts tending to show the unsoundness of the testator’s mind at the time of the execution of the second codicil, and also, probably, to introduce the opinion of Dr. Biegler on that subject, founded on his observation of Mr. Field as his attending physician.

The language of the section, on which the objection was based, is as follows:

“A person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”

It is to be observed that, in this instance, it did not appear that the information sought from Dr. Biegler was information of any facts which was necessary to enable him to act in the capacity of the physician of the testator. It was not the disclosure of any -confidential information acquired in his professional capacity, but of facts which, were open to the observation of any person who had seen and conversed with the testator. The provision is, in substance, a re-enactment of a similar provision in the Revised Statutes of 1830.

We have recently had occasion to examine this provision of law, in the case of Pierson v. The People (18 Hun, 239). In that case, the language of this section of the Code was invoked to prevent the disclosure by a physician of the symptoms exhibited by a deceased person, on the trial of an indictment against Pierson for the murder of the deceased by poisoning. We held, in that case, that the object and intent of the provision of the Code, was the protection of the patient and his representatives against the disclosure of information obtained by a physician in the course of his employment as such, and that it did not prohibit the disclosure of such information when the rejection of the testimony was sought to shield a person charged with the murder of, the patient, in a criminal proceeding against the latter for the alleged crime, and that such a case was clearly not within the intent of the statute, and was, therefore, not embraced by it.

The provision in question “is a just and useful .enactment to give protection to those who were in charge of physicians from the secrets disclosed, to enable them to properly prescribe for the diseases of the patient. To open the door to the disclosure of the secrets revealed on the sick bed, or when consulting a physician, would destroy confidence between the physician and patient, and it is easy to see might tend very much to prevent the advantages and benefits which flow from this confidential relationship.” (Edington v. The Mutual Life Ins. Co., 67 N. Y., 185; and see The People v. Ira Stout, 3 Parker’s Crim. Rep., 670, where the reasons for this enactment are fully stated.) The right to exclude the testimony prohibited survives to the representatives in the premises of a deceased person. (Edington v. The Mutual Life Ins. Co., supra; and Dilleber v. The Home Life Ins. Co., 69 N. Y., 256.)

By the 836th section of the Code of Civil Procedure it is provided that the provisions of section 834 shall apply to every examination of a person as a witness, unless the provisions thereof ai-e expressly waived by the patient. In this case, the patient being deceased, the provisions of the section could only be waived by his representatives. The respondent, at the stage of the case before the surrogate, when this evidence was excluded, was a mere stranger to the estate. The evidence was offered in behalf of the heirs at law, who, at that stage of the investigation, appeared to be the only representatives of the deceased in the premises. They, therefore, were the-parties who succeeded to the rights of the deceased, and who were competent to waive the provisions of the act. (Allen v. The Public Admr.; 1 Bradf. Rep., 221, affirmed by the Court of Appeals sub nom.; Thayer v. Allen, Selden’s Notes, page 93.)

Wharton, in his work on the Law of Evidence, speaking of the admissibility of the evidence of an attorney concerning matters-which have come to his knowledge under the seal of professional confidence, says at section 591 : “The privilege, it should also be remembered, is meant to protect the living in their business relations, and cannot be invoked when the question arises as to the intenton of a deceased person in respect to the disposition of his estate.”

In support of such a construction of the statute as will allow this class of testimony to be received in such cases, it is to be remarked that notwithstanding; the prohibition of the statute which has existed for nearly half a century, this class of testimony has-almost invariably been offered in inquiries relative to the competency of testators, and received without objection, notably in the Parish Will Case (25 N. Y., 1); (Parish Will Case, vol. II, p. 622, etc.). That was like this, a case involving the competency of a testator, at the time of the execution of a codicil, propounded for proof, and the counsel engaged in the investigation were among the most eminent in the State, yet the testimony of Drs. Edward Delafield and Abram Dubois, who had been his attending physicians, was offered and received without objection, and they gave most-important evidence upon the issue, which, it appears, materially influenced the Court of Appeals in the determination of the question of the testator’s competency to execute the codicil.

We think the surrogate erred in rejecting the evidence of Dr. Bieglcr, especially since it did not call for anything which can be-supposed to have been communicated under the seal of professional confidence.

As to the question of the renunciation of Mr. Parker, executed prior to the- death of Mr. Field, for a consideration, and •contrary to the expressed desire of the testator, we fully concur with the opinion of the surrogate, that the proposed renunciation was invalid and of no legal effect, either as a renunciation or au agreement to renounce in futuro.

But we cannot say but that the evidence proposed to be given by Dr. Biegler, if received, might have been so important as to have produced, in the mind of the surrogate, a result different from that at which he arrived, and, therefore, on account of the rejection of tins evidence, the order of the surrogate of Monroe county, so far as it admits to probate the codicil, bearing date October 5,1878, is reversed, with costs to the appellants, to be paid out of the estate, and the proceedings are remitted to the surrogate, with instructions for a further hearing as to the validity of the second, •codicil.

Present — Talcott, P. J., Smith and Hardin, JJ.

Ordered accordingly.

       The following is the portion of the surrogate’s opinion which relates to that point:
      “ Third. What was the effect of the renunciation, particularly as coupled with the agreement and followed by the retractions %

        “ It is a familar principle that, under ordinary circumstances, a renunciation of the rights and duties of an executor may be retracted at any time before administration is granted to another. (Dayton’s Surrogate, 223; Redfield’s Surrogate, 140; Robertson v. McGeoch, 11 Paige, 640.) The power of retraction is a matter of right, not of mere privilege. (Casey v. Gardiner, 4 Bradf., 13.) Even after letters testamentax-y have been issued to one of two executors upon the renunciation of the other, and after an estate is partly settled, if the executor with the letters die, the one who renounced will be allowed to retract his renunciation and take letters testamentary, although the next of kin may object. (Codding v. Newman, 63 N. Y., 639, 697.) Indeed, our statutes and our courts seem to be opposed to the renunciation, and to favor retraction, for the manifest reason that it is desirable that, so far as may be, trusts shall be administered by those appointed by the creator of the trust. Thus, our statute makes it necessary that a renunciation must be executed in the presence of two witnesses, and with almost as great solemnity as a will itself. (2 R. S., 70, § 8.)
      “ With an ordinary retraction of a renunciation, nothing of the kind is required. -Before our statute, and under the common law, it was necessary for all persons, named in a will as executors, to join in all actions in behalf of the estate, though only one had proved the will and all the others had renounced. (Watkins v. Brent, 7 Sim., 517; Webster v. Spencer, 3 B. & Ald., 360; Bodle v. Hulse, 5 Wend., 313.) Perhaps, for similar reasons, it is still the rule that a person who has once accepted and entered upon the execution of his trust is not ordinarily .allowed to resign it. It seems to be conceded that the renunciation, simply as a renunciation, was void in its inception, having been made before the death of Mr. Field; that the will could speak only from the death of the testator, and up to that time no one had any rights under the will to renounce.
      “ The contestants claim, however, that the renunciation should be read in connection with the agreement for employment, executed at the same time by thyee of the four executors named in the original will, and that, so read, the two constitute an agreement on the one part not to exercise his rights as executor when "those rights accrued, and on the other of employment by those who should be executors. It is, perhaps, not necessary to consider the question now, whether, if Mr. Parker was not then able to execute a valid x-enunciation, as executox1, the othex-s wex’e able to make a valid contract of employment. We will, for the present, assume that the contestant’s position is collect, and that the two papers x-ead together constitute such an agreement as they claim, having reference solely to the futux’e pi-obable position and i-ights of the parties.

        “ Let us look, for a moment, at the situation of .the parties as they were at the time. Mr. Field had made his will, appointing five executors; he had refused to revoke the appointment of one of them — Mr. Parker. Mr. Parker had, at the time of his appointment, signified his acceptance of the trust; when informed of the proposed renunciation by Parker, Mr. Field vehemently opposed it. Nevertheless, and while he was yet' alive, this agreement was consummated. An agreement between two applicants for a public office, that one should withdraw and aid the other to obtain the appointment, the fees of the office to be divided between them, is void. (Gray v. Hook, 4 N. Y., 449.) An agreement between two candidates for an office, that one should withdraw and the other should reimburse him for all his expenses, is void. (Robinson v. Kalbfleisch, 5 S. C. [T. & C.], 212.) If such agreements are void, as to public trusts, is there any reason why they should not be as to private ones also ?
      “ It has always been held that agreements, on the part of attorneys, to be unfaithful to their clients, of trustees to be unfaithful to their cestuis que trust, are absolutely void. Is there anything to take this agreement out of the rule of such cases?
      “There is one thing to be constantly borne in mind in this discussion, which, these trustees evidently forgot at the time1 of making this agreement, which trustees are very apt to forget, and that is, that the estate, in regard to which they were bargaining, was not theirs. Mr. Field was still alive. This vast estate, which he had struggled so long and successfully to accumulate, was his. He had the right to do with it as he pleased, and to appoint to manage it whomsoever he pleased. When these prospective executors undertook to bargain regarding it, they were dealing with what was none of theirs, either as executors or descendants, and they, who had been nominated to be executors of the will, were attempting to supersede and circumvent it. The fact that the agreement was made for a consideration, instead of strengthening it, should condemn it.
      “ An executor has the undoubted right to renounce, of his own motion, if he desires. But a renunciation for a consideration — a renunciation purchased in any manner, without the concurrence of the testator, and during his lifetime, is a very different matter. If agreements of this nature are to be enforced, then surely testators may well doubt, not only as to who will carry out their wills, but whether they will be carried out at all. To be sure, in this case it may make but little difference who the executors may be, though of that we cannot judge, for Mr. Field may well have had a special and valid reason for the appointment of Mr. Parker. But the principle is the same, whether the difference is little or great; and if the will may be varied by agreement in the lifetime of the testator in a minor respect in this case, it may be varied in an important one in the next, and the door would be thrown wide open to fraud and corruption on the part of designing men and intriguing descendants, and imposition upon confiding testators.

        “ The renunciation, then, standing by itself, was, as we have said, and as it is conceded, void in inception. Had it been otherwise, the retraction filed would have restored Mr. Parker’s rights under the will. In strictness, therefore, this ■court, having no power to compel the specific performance of contracts, might have no authority to do other than admit the codicil to probate and issue letters testamentary to Mr. Parker, even if the agreement referred to were, in the estimation of the court valid. But the agreement, being of the kind above intimated, it is unnecessary now to consider the question. Certainly the court would not feel bound to strain its authority to enforce such an agreement. Had it full ■authority, it would be its duty to ‘ take advantage of any fair circumstances to avoid making a decree for the specific performance of a contract by trustees, when the execution of it would constitute a breach of trust.’ (Jeremy’s Eq. Jur., 451.) Assuming, therefore, all that is claimed for the papers in question, they .seem only to form a contract which would be void as against public policy, and looking at the questions presented in all their aspects, there seems to be no rea.son why the second codicil should not be admitted to probate with the will, and .it is so ordered.”


text:
    THE TRUSTEES OF THE CANANDARQUA ACADEMY, Appellants, v. JAMES McKECHNIE AND ALEXANDER McKECHNIE, Respondents, Impleaded with THE ONTARIO FEMALE SEMINARY.

      Bringing action in corporate name — what a sufficient averment of its existence — when a trustee of a corporation may be a subscribing witness — Corporate seal proves itself— Commissioner of deeds need not take proof as to — Acknowledgment need not follovo the statute literally.

    The bringing of an action in a name, purporting to be that of a corporation, is a sufficient averment of the plaintiff’s coiporate existence.
    ■The trustee of an incorporated female seminary was in 1828 a competent witness to a mortgage, executed by its president, when it is not shown that he was a stockholder thereof or had any pecuniary interest therein.

      The seal of a corporation affixed to an instrument proves itself, and is presumptive evidence that it was affixed by due authority.
    'The officer, before whom a corporate deed is acknowledged, is not required to take evidence that the corporate seal was affixed by due authority, or as to the title of the officer who executed it.
    A certificate of proof or acknowledgment in due form proves itself, and no proof of its genuineness is required.
    .A certificate of proof or acknowledgment need not be in the precise language of the statute, it is enough if it show a substantial compliance therewith.
    A mortgage under seal is a deed, so that a commissioner -authorized to take acknowledgment of deeds may take proof of its execution.
    Appeal from a judgment in favor of the defendants, entered "upon the trial of this action by the court without a jury.

      T. M. Howell, for the appellant.
    The acknowledgment is sufficient in form and substance. (Jackson, ex’r, etc., v. Gumaer, 2 ■Cow., 552 ; Troup v. Haight, Hopkins’ Ch., 239 ; Duval v. Covenhoven, 4 Wend., 561; Thurman v. Cameron, 24 id., 87 ; .Meriam v. Ilarsen, 4 Edw. Ch., 70; Meriam v. Ilarsen, 2 Barb. Ch., 232, affirming 4 E'dw., 70; The West Point Iron Co. V. Pernert, 45 N. Y., 703; Chauvin v. Wagner et ail., 18 Mo., 531; McIntyre v. Ward, 5 Biimey [Pa.], 296; Mantz v. Bailey, 3 Dana [Ky.], Ill; Barton v. Monis, 16 Ohio, 408; Hughes <& Cummings v. Lane, 11 111., 123; Sharp v. Hamilton, 7 Halsted '[N. J.] 110; Vaneev. Schuyler, 1 Gilman [111.], 160.) Mark H. .Sibley, although a trustee of the Ontario Female Seminary, was a competent witness to prove the execution of the mortgage. (1 Greenl. on Ev., § 333, note 4, cases cited.) The seal of a corporation, affixed to an instrument, is, of itself, prima facie evidence that it was so affixed by authority of the corporation; it lies with the party objecting to the due execution of the instrument, to show that the corporate seal was affixed to it surreptitiously or improperly. (Lovett v. The Steam Saw Mill Associ- . tion, 6 Paige Ch., 54; Flint v. Clinton County, 12 N. H., 430; Chouquette v. Barada, 28 Mo., 491; Bank of the United States v. Dandridge, 12 Wheat., 70) The magistrate, in taking acknowledgments, acts judicially. A duty is imposed on him by the law of ascertaining the truth of the matters about which he ' is to certify, and it is a legal presumption that he did his duty, and examined the witness as to all material facts in regard to the execution of the deed. (The Calumet and Chicago Canal and Dock Company v. Cornelia Russell, 68 Illinois, 426 ; 4 Edward’s Chan., 75, supra; Jackson v. Gilchrist, 15 Johns., 111.)

      H. M. Field, tor the respondents.
    The subscribing witness was a trustee and stockholder of the corporation, and, as such, was an interested witness, and was not a competent witness to prove the execution of any mortgage or conveyance to be given by such corporation. (Pack v. Mayor, etc., 3 Comst., 489; chap. 149, Laws of 1825; Greenl. on Evi., § 333; Muller v. Keep, 1 Paige, 601; State v. Cats'Icill Bank, 18 Wend., 465; 2 E. S. [6th ed.], 1146, § 35; 1 id., 369, § 5.) See section 936 of Code of Civil Procedure, showing that the law remains the same now as it was in 1824 and earlier. The affidavit or statement at the end of the instrument was wholly insufficient and did not conform to the statutes as they then existed, and the court ruled properly that it was not sufficient to allow same to be read in evidence on the trial. (Laws of 1797, chap. 18; Laws of 1798, chap. 78; E. L.,1813, pp. 369-372; Laws of 1819, p. 269; Laws of 1822, pp. 261-284; Laws of' 1823, p. 412; 1 E. S. [Edm. ed.], 714, chap. 3, § 37.) The officer must know, and of course must certify, that he knows the party not only to be the individual described in, but the same person who executed the conveyance. One without the other will not comply with the statute. (E. S., 369, §§ 1, 2; 1 id., 758, § 9; Jackson v. Cooly, 8 Johns., 128 [this was decided in 1811]; Gibbs v. Osborne, 2 Wend., 555 [this was in 1826]; Rawson v. Shepard, 2 Johns., 76 [the deed here was executed in 1793]; Watson, Executor, v. Campbell, 28 Barb., 421; Gillett v. Stanley, 1 Hill, 121; Fryer v. Rockefeller, 63 N. Y., 268; Miller v. Link, 2*N. Y. Sup. Ct. [T, & C.], 86.> There is no evidence that the corporation authorized JohnGreig, or anyone else, to affix its seal to the paper. If. not duly authorized by the certificate, it does not bind it, and is of no avail. {Mann, Receiver, v. Pentz, 2 Sand. Chan., 272, opinion; Nat. Bank v. Norton, 1 Hill, 572; Hoyt v. Thompson, 1 Seld'., 320; Field on Corporations, §§ 226, 247; Johnson v. Bush, 3 Barb. Chan., 207.)
   Talcott, P. J.:

This is an appeal from a judgment, rendered by the Special Term of Ontaria county, in an equity action, tried by the court.

The action is for the foreclosure of a mortgage, bearing date on the 4th day of December, 1827, purporting to have been proved by a subscribing witness, on the 24th day of April, 1828.

The mortgage, and the certificate of the proof thereof were, by the clerk of the county of Ontario, recorded in the record of mortgages, in his office, on the 24th of April, 1828, and purported to have been executed by and beetween the “Ontario Female Seminary” of the first part, and the “Trustees of the Canandarqua Academy,” the plaintiffs, of the second part. At the conclusion of the mortgage is the following recital: “In witness whereof the parties of the first part have caused these presents to be signed by their president and sealed with their corporate seal the day and year first above written,” and the instrument purported to be sealed with the seal of the Canandarqua academy. The signature of Mr. John Greig was affixed to the instrument, and, after the signature of “John Greig, Prest,” ivas affixed the name of Mark H. Sibley, following the usual attestation clause.

The respondents, McKechnie, were the claimants of the title to the premises covered by the mortgage, under the foreclosure of a subsequent mortgage, made by the Ontario Female Seminary to' one Richards and by Richards assigned to the respondents.

The respondents' counsel object that the existence of the plaintiff, as a corporation, was not proven. It is well settled that the bringing of an action, in a name purporting to be a corporate name,-’is a sufficient averment of the existence of the plaintiff as a corporation.

But, to say the least, it is doubtful whether the averments in the answer are sufficient to raise the issue of nul tiel corporation. As the denial is of the existence of. a corporation by the name of the “Trustees of the Canandaigua Academy,” although the answer itself, as well as all the other proceedings in the case, are. correctly entitled with the true name by which the plaintiffs sue. However this may be, the court distinctly and expressly found that “ the plaintiff is a corporation, duly incorporated and existing under the laws of the State of New York.” And there is no exception to, or appeal from such finding, and of course no question as to its correctness can be entertained here.

The counsel for the respondents made various objections to the reading of the mortgage in evidence, on the ground of an alleged deficiency in the certificate of proof of the same.

The certificate of proof was in the words and figures following, viz. :

“ Ontario County ss. :

“ On the 24th day of April, 1828, before me, a commissioner of said county, authorized to take the acknowledgement of deeds, etc., comes Mark H. Sibley, to me known to be the subscribing witness to the foregoing deed, and who being by me duly sworn deposes, that he knows John Greig, the person described in and who has executed the said deed, and that he saw the said John Greig execute the same, and that the seal thereunto affixed is the seal of the Ontario Female Seminary.

“ J. CHIPMAN.”

The mortgage is indorsed as follows :

“ Ontario County ss. :

“ Received for record, 24th of April, 1828, at 2 o’clock, p. m., and recorded in liber 15 of Mortgages at folio 201, and examined. Ralph Lester, Clerk.

The form of proof and certificate thereof is governed by the Revised Laws of 1813. (1 Rev. Laws of 1813 [Van Ness & Woodworth’s ed.], 369.)

The provisions of the Revised Statutes concerning the proof and acknowledgement of deeds did not take effect as laws until the 1st of January, 1830. (See act concerning the Revised Statutes, passed December 10, 1828 ; Hunt v. Johnson, 19 N. Y.,.279.)

It is found as a fact that Mark H. Sibley was one of the trustees of “ The Ontario Female Seminary,” and resided in the village of Canandaigua. One of the objections specified to the competency of Mark H. Sibley was founded on the fact that he was such trustee. But it was not shown that Mr. Sibley was a stockholder, or had any manner of pecuniary interest in the seminary. We think he was a competent witness tó prove the execution of the deed. (1 Greenl. on Evi., § 333.) It was furthermore objected that the subscribing witness failed to testify that John Greig was president of “ The Ontario Female Seminary,” or that the seal of the said corporation was affixed by authority.

The seal of a corporation, affixed to an instrument, proves itself, and is of itself sufficient prima facie, or presumptive evidence, that it was so affixed by due authority. It lies with the party objecting to the instrument so scaled to show that the seal of the corporation was improperly affixed, or without the assent of the proper authority. Lovett v. Steam Saw Mill Ass’n, 6 Paige, 54; Jackson v. Campbell, 5 Wend., 572.) The officer taking proof of the deed is not required to take evidence that the corporate seal was affixed by authority, or to examine into-the title of the person who assumes to be the officer of the corporation. But, moreover, it appears that the subscribing witness did testify that he knew John Greig, the person described in and who executed the mortgage. There is no other description of John Greig in the mortgage, except the reference to him as president of the corporation, and the declaration of the witness was, in substance, that John Greig was the president of the corporation.

It was also objected that I. Chipman, who took the proof, was -only authorized to take the acknowledgement of deeds; whereas, bhc instrument in question appears to be a mortgage. A mortgage, under seal, is a deed.

The genuineness of the certificate of proof required, itself, no proof. “ I. Chipman,” who took the proof, assumed to be a commissioner authorized to take the proof; he was. probably a commissioner appointed by the council of appointment, under the act of March 24, 1818, and the certificate being in due form proved itself, and no proof was required that the certificate was genuine. (Thurman v. Cameron, 24 Wend., 87.)

The provision of the Revised Laws of 1813, before cited, is as follows, viz. :

See 1 Revised Laws, 369, section 1, which provides: “ That no such acknowledgment shall be taken, unless the officer taking the same shall know, or have satisfactory evidence, that the person making such acknowledgment, is the person described in and who-has executed such deed, conveyance or writing, and that no such proof shall be taken unless the officer taking the same shall know the person making' such proof, or have satisfactory evidence that he is a subscribing witness to such deed, conveyance or writing, and that such witness knows the person who executed the same, all of which shall be inserted in the said certificate of such acknowledgment or proof; and in case of the examination of witnesses, it shall also be the duty of such officer to set forth in such certificate what witnesses were examined before him, and the substance of the evidence by them given.”

The various decisions in this State have established the rule that a certificate of proof or acknowledgment need not be in the precise language of the statute, but is to be liberally construed, and is enough if it shows a substantial compliance with the statute. (Jackson ex dem. v. Gumaer, 2 Cowen, 552; Troup v. Haight, Hopk. Chy., 239; Duval v. Covenhoven, 4 Wend., 561; Meriam v. Harsen, 4 Edw. Chy., 70; S. C., on appeal, 2 Barb. Chy., 232; West Point Iron Co. v. Reymert, 45 N. Y., 703.)

We think the certificate of Mr. Chipman in all things substantially complied with the requirements of the Laws of 1813, and therefore that the court erred in the rejection of the mortgage in evidence, and, moreover, we think that the clerk of Ontario county was justified in placing the mortgage on record. The court below dismissed' the complaint, on the ground that the mortgage was not sufficiently proved.

Judgment reversed and new trial ordered, costs to abide the event.

Habdin, J., concurred; Smith, J., not sitting.

Ordered accordingly.


author: Hardin, J.:

text:
    CATHARINE WALDELE, Administratrix, etc., of JOHN WALDELE, Deceased, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Negligence — when a question for the jury — declarations of deceased — when inadmissible.

    The plaintiff’s intestate, a deaf-mute, on approaching the defendant’s tracks, at a, crossing in a public street, in the city of Rochester, at about midnight, found a freight train passing; he waited -until it had passed, stepped upon the track to cross, and was struck and killed by an engine following the freight train, at a distance of about fifty féet. The night was very dark, and the engine was running backwards, with no light upon its tender, at the rate of about twenty miles an hour, though it was prohibited by a city ordinance from running at a greater rate than eight miles an hour. The evidence tended to establish the fact that a flagman was kept at the crossing', but failed to show he was there at the time of the accident.

      -Beld, that the question of defendant’s negligence and of plaintiff’s contributory negligence should have been submitted to the jury, and that it was error to 'direct a nonsuit.
    Upon the trial the plaintiff offered to prove declarations of the deceased, as to the manner in which the injuries were received, made shortly before his death, and some two hours after the accident.

      Held, that the declarations were not admissible as part of the res gestee nor as declarations made in extremis.

    Declarations made in expectation of immediate death are only admissible on the trial of an indictment for homicide.
    Motion for a new trial, on excéptions ordered to be heard in the first instance at the General Term, after a nonsuit directed at the circuit.
    The action was brought to recover damages for the negligent killing of the plaintiff’s intestate by the defendant.
    At the trial the plaintiff was nonsuited. The motion for a non-suit was rested upon two grounds, viz.: That the evidence failed to establish that the negligence of the defendant produced the death of the deceased, and that the evidence failed to make out that the negligence or want of care of the deceased did not contribute to his death. There was a request, on the part of the plaintiff, that both the questions be submitted to the jury, which was denied.

      The deceased, John Waldele, died about three o’clock on. the morning of the 2nd of July, 1876, from injuries received, about midnight, on the crossing of Kent street, a public street in the city of Rochester, which crosses the defendant’s Buffalo branch. There was evidence tending to show that the deceased approached the railroad about twelve o’clock, and as he reached the tracks he found a freight train passing east towards the depot; that he halted until it had passed, and then stepped upon the track, and ivas struck by a tender and engine, which were backing up and following the freight train, at a distance of about fifty feet from it.
    The night was very dark and the tender had no headlight or lantern upon it to warn or inform travelers of its approach, and there ivas no street light near the crossing. The deceased was a deaf mute, and after he got upon the track was struck and thrown some distance to the south side of the- track near a store on Kent street; he ivas then picked up and taken to the hospital, where-he died in about throe hours from the time he received his injuries. He was about twenty-four years old, Avith good eypsight, sober and active.
    There was evidence tending to establish that the freight cars, and the tender and engine following it, were running at the rate of tAventy miles per hour; also that the defendant, by an ordinance of the city, was prohibited from running its train at a greater rate' than eight miles per hour. The evidence did not establish that any flagman was at the crossing, though it tended to establish that it was a flag crossing, and that the flagman was called, after the injuries, from his “shanty” to bring a light to enable the persons, who heard the moans of the deceased, to distinguish whether it was an injured or a drunken man who made them.
    Upon the trial the plaintiff offered to prove the declarations of the deceased, as to the manner of receiving the injuries, made just before, and when he expected death. • They were excluded and the plaintiff excepted to the ruling.

      William Graebe and John H. Martindale, for the plaintiff.
    The declarations of the deceased were admissible, and the court erred in excluding them. (Insurance Co. v. Mosley, 8 Wall.. 397:
      Oommomoealth v. Pike, 3 Cush., 181; Swift v. Mass. Life Ins. Oo., 63 N. Y., 190; Matteson y. JY. Y. O. IL P. Oo., 35 id., 487.)

      Bdward Harris, for the defendant.
    This evidence was not admissible as the dying declaration of the deceased. , Such declarations are not admitted in civil cases. ( Wilson v. Boerem, 15 Johns. R., 286, 291; Daily, Admr., v. JY. Y. and JY. Haven JR. JR. Oo., 32 Conn. R., 356; Best, on Ev. Am. Notes by H. G. Woods, vol. 2, p. 913 Jhnarg. 627], § 505.) Nor as a part of the res gestae, for the very obvious reason that it was proposed to prove a mere conversation between the witness and the deceased — -a mere narration of the manner of the injury, at a time considerably subsequent to the event and at another place. (Moore v. Meacham, 10 N. Y. R., 207; The People v. Davis, 56 id., 95, 102; Best on Ev., vol. 2, p. 886, n. a.) Such declarations were incompetent as proof of the manner of the injuries. {State v. Davidson, 30 Yt. R., 377; 2 Redfield on Railways, § 186.N
   Hardin, J.:

It was fairly inferable from the evidence that when the deceased approached the crossing he found it obstructed by the passing train of freight cars, and- that when the last car passed, and a vacant space was presented, that he stepped upon the track without any knowledge or apprehension of the approach of the engine and tender. The facts would have warranted the jury in finding that it was natural and reasonable for him to suppose that when the freight train had passed, and the track uncovered, that it was suitable and sate for him to cross. Being a deaf man he did not hear the approach of the engine and tender, and there being no light upon them to warn him, as the jury might have inferred, he was not made aware of their approach. The running of- this engine, at a rate of speed, beyond the ordinance rate, without any light stationed upon the tender, in a populous city, over numerous crossings, in such close proximity to an advancing train, under the circumstances disclosed by the evidence, was so exceptional and unusual, as to present a fair question as to negligence, for the consideration of a jury.

The question as to the defendant’s negligence should have been submitted to the jury, instead of being passed upon as a matter of law. (Massoth v. Del. and Hudson Canal Co., 64 N. Y., 524; Jetter v. N. Y. and Harlem R. R. Co., 2 Keyes, 154; Maginnis v. N. Y. and H. R. R. Co., 52 N. Y., 215.) Was the deceased free from' contributory negligence at the time of the accident ? We must assume that the law requires him to make a vigilant use of his senses to apprehend the situation accurately before determining to venture to cross the tracks.

He did not possess the sense of hearing, and, therefore, could not rely upon any sounds as a means of knowing that it was safe. But he had a right to pass along the street, and to cross the road, using such care as he was capable of.; necessarily, he would be obliged to rely upon his eyesight, to' a greater extent than one having his sense of hearing. He was, therefore, called upon to look up and down the track before venturing upon it. He had seen the freight train pass ; he had seen that there was an unobstructed space left, and if he looked in the direction of the approaching engine and tender, and did not see them, he naturally and prudently might have ventured to pass over the track. The case is without positive evidence upon the subject of whether he looked before stepping upon the track. But there is evidence ten fling to show it was a very dark night; that there was no light upon the backing tender ; that it was passing at the rate of twenty miles per hour, and in the neighborhood of fifty feet behind the advancing train of freight cars.

Necessarily, the witnesses, who state the distance between the freight cars and the engine and tender, give an estimate of the intervening space. It may have been less or more than fifty feet, and yet they guess or estimate as best they can that the distance was about fifty feet. Recognizing the rule that the plaintiff’s case must show by direct evidence, or by such circumstances as justify a fair inference, that the deceased was free from contributory negligence, we think that the case should have been submitted to the jury upon this branch. In the Massoth Case (supra) Judge Allen says : “ It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence, that the party injured has by his own acts or neglect contributed to the injury, that the court can take the case from the jury, and nonsuit the plaintiff”

The instances in which nonsuits have been sustained, by reason of the contributory negligence of the plaintiff or party sustaining injury, have been exceptional cases in which the court has adjudged that such negligence was conclusively established, by evidence which left nothing either of inference or of fact in doubt or to be settled by a jury. How can we say that the deceased did not look in the direction of the approaching engine and tender, and by reason of the darkness of the night, and the absence of a proper signal or light, fail to apprehend its approach, at the critical moment when ho passed upon the track ? Does the evidence sustain the inference that he acted with ordinary caution and prudence under the circumstances, known and apparent at the moment the freight train had passed the crossing, and he stepped upon the track and was struck by the “ wildcat,” or backing enginfe ?

These, in our judgment, were proper questions for the consideration of the jury. (Gray v. The Grand Trunk R. R. Co., 8 Weekly Dig., 371; Terry v. Jewett, 17 Hun, 395; Eagan v. Tucker, 18 id., 349.) The court erred in refusing to submit the case to the jury and in nonsuiting the plaintiff, and a new trial should be ordered.

The declarations of the deceased, after he was taken to the hospital, as to the manner in which he received the injuries, were not admissible. It is well settled that dying declarations can be Received only on the trial of an indictment for homicide. (Wilson v. Boerem, 15 Johns., 287; People v. Davis, 56 N. Y., 95.) Such evidence is received as an exception to the general rule, that hearsay evidence is not admissible, only upon the principle which protects human life by punishing those who commit homicide. Such crime is often committed when none but the victim and his assailant are present, „and his declarations when in extremis — conscious that he is- about to die — are received to prevent a failure of justice. (1 Greenl. on Evi., § 156, 225, and cases cited [supra] ; not so in a civil case.)

Nor were such declarations receivable as a part of the res gestae. They were made about two hours after the injuries were inflicted, and after the injured party had been removed from the place of the injury to the hospital; they were too remote and narrative. (Trimmer v. Trimmer, 13 Hun, 182; Ins. Co. v. Mosley, 8 Wall., 400; Smith v. Webb, 1 Barb., 230; Matteson v. R. R. Co., 35 N. Y., 487.)

A new trial should be ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

New trial ordered, costs to abide event.


text:
    HIRAM NEWELL, Respondent, v. STILLMAN CUTLER, Appellant Impleaded with PETER FISHER.

      An order adjudging a party guilty of contempt — appealable under sec. 1342, Code of Civil Froced/ure — Failure to show original injunction order when serving the copy, a mere irregularity — what constitutes a waiver of it — Defendant restrained, in supplementary pj'oceedings cannot collect and use wages.

    An order of a county judge, adjudging a party guilty of contempt in violating an injunction contained in an order diz-ecting him to appear for examination in supplementai-y proceedings, involves a substantial z-ight and is appealable under section 1342 of the Code of Civil Pi’ocedui-e.
    A failure to show the party the oi'iginal order, when serving him with a copy, is a mere irregularity, which is waived by his appearing, without objection, before the z-eferee and submitting to an examination.
    Where a paz’ty has been sei’ved with an order requiring him to appear and be examined in suxzplementary iwoceedings, and restraining him from disposing of any of his property, the fact that he has a family wholly supported by his labor will not authoi’ize him to dispose of wages subsequently collected by him, without permission of the couz-t.
    Appeal by the defendant Cutler from an order made by the county judge of Erie county, in proceedings supplementary to execution, adjudging the defendant to be guilty of a contempt, in violating an injunction clause contained in a former order restraining him from disposing of or “ interfering with any property, money, things in action, or equitable interest belonging to him, and not exempt from levy and sale on execution.” The defendant was adjudged guilty of contempt and fined fifteen dollars and committed until it should be paid. The defendant paid the fifteen dollars and then brought this appeal.

      B. B. Vedder, for the appellant.

      George Wing, for the respondent.
   Hardin, J.:

The respondent urges, by way of a preliminary objection, that-the order is not appealable. Section 1342 of the Code of Civil Procedure provides, viz.: “An appeal may also be taken to the Supreme Court from an order affecting a substantial right made-by the court or a judge in an action brought in a court specified in the last section but one.” The court named in section 1340 is a county court, and the expression in section 1342 quoted includes a “judge” of that court.

The order was, therefore, made by a judge from which an appeal may be taken. It remains to inquire whether the order' affected a “ substantial right.” It adjudged the defendant guilty of a contempt, and imposed a fine of fifteen dollars, and imprisonment unless paid. In Forbes v. Willard (54 Barb., 523), it was-distinctly held that such an order affects a substantial right, and. as such is appealable. (See Clapp v. Lathrop, 23 How., 423; Holstein v. Rice, 15 Abbott, 307.) Daniels, J., says in Forbes v. Willard (supra), “few, if any, orders can be made in such proceedings more serious, or certainly affecting substantial rights-than those which deprive the party of his liberty.”

Such orders are not in special proceedings, but are orders in theaction. (Seeley v. Black, 35 How., 369; Pitt v. Davison, 37 N. Y., 235.) The order to appear and be examined, and which contained an injunction provision, was issued and served on the 28th of March, 1879, and was returnable on the 2nd day of April, 1879. On that day the defendant appeared upon the order before a referee and was examined in respect to his property, and testified that the order was served on him, ‘ either on the 28th or 29th of March, 1879.” At the close of the evidence the referee attached a certificate showing what the evidence was which was taken before him. Upon the 2d of April, 1879, the plaintiff gave a. written notice to the defendant, that on the 21st of April, 1879,, he should apply to the county judge for the appointment of a receiver, and that the defendant be adjudged guilty of a contempt for violating the injunction order. Upon the twenty-first the parties appeared before the county judge and the evidence was taken before him, and the defendant objected to the reading of the referee’s report because it had not been served.

By an examination of the appeal papers we find no report of the referee ; the referee simply certifies at the close of the evidence given by the defendant, viz.: “that the above is the testimony and the whole of the testimony of the defendant.” We do not. see that any error was committed in allowing the evidence to be read and the certificate appended thereto by the referee. The evidence showed that'the defendant was deputy collector of customs at Tonawanda, and that his wages were three dollars per day, including Sundays and holidays. That on the 31st of March, 1879, he received ninety-three dollars; that he had when before the referee $25.16 of it, and that he had disposed of the rest of it, and that he declined to apply the $25.16 to the judgment in this action. The defendant read an affidavit, in which he stated a copy •¡of the order for his examination was served upon him, and that ■“ no original order ” was shown to him, and then claimed that he was not liable to be adjudged in contempt of the order restricting him from disposing of, or interfering with, his property, rights in action, etc.

The objections came too late. The omission to show the original order was a mere irregularity, and by appearing and answering upon the return thereof it was waived. The point was considered, and held adversely to the defendant, in Billings v. Carver (54 Barb., 40; see, also, Pitt v. Davison (37 N. Y., 242); Shultz v. Andrews (54 How., 376). The defendant showed that he had a family supported wholly by his labor, and claimed that his earnings could not be ordered applied towards the payment of the judgment. (Old Code, § 297.) However that may be, it furnished no excuse for disposing of or interfering with his wages by himself, in the absence of an order permitting him to do so. When he was served with the restraining order it was his duty to obey the same as long as it remained in force. (Shultz v. Andrews, 54 How., 376.)

He should have left the wages uncollected until the injunction was. removed, or until the close of the supplementary proceedings and. the further order in the premises. For such violation of the order, as he disclosed by his evidence, he was liable to be punished as. for a contempt. The order adjudging him guilty was properly made. We must, therefore, affirm it with ten dollars costs and disbursements.

Talcott, P. J., and Smith, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: Hardin, J. :

text:
    CLAYTON L. HILL, as Administrator, etc., Appellant, v. J. DWIGHT ALVORD AND JEROME HOTCHKIN, Respondents.

      Seoerance of action — when not granted — order allowing remewable on the merits.
    In this action, brought by the payee of a joint and several note against the makers thereof, the original plaintiff died and the action was revived by his administrator. The defendants, one of whom had signed the note for the accommodation of the other, moved to sever the action so that they might severally testify in each other’s favor, in order to establish the defences set up in the answer. Held, that as the defendants could be witnesses for each other-to the same extent in the joint action that they could in the two actions into which it was sought to separate it, 'that no reason existed for granting the application, and that an order of severance should not be granted.
    On appeal an order directing the severance of an action is reviewable upon its merits.
    Appeal from an order of the Onondaga County Court, severing the action and directing its prosecution against the defendants separately, to enable them to' be witnesses for each other therein. The action was brought upon a promissory note, made by defendants, for $600, viz. :.
    “ Six months after date I promise to pay to Lewis O. Hill, six hundred dollars, at the dwelling-house of Lewis O. Hill, with interest, for value received.
    “ (Signed) J. DWIGHT ALVORD.
    “JEROME HOTCHKIN.”

      The defence was usury and an alteration of the note after execution. Subsequent to the commencement of the action Lewis O. Hill, the payee and original plaintiff, died, and the action was xevived in the name of his administrator, the present plaintiff. It appears that Hotchkin signed the note for the accommodation of Alvord.

      Gott & Evarts, for the appellant.

      Pratt, Eroion & Garfield, for the respondents.
   Hardin, J. :

Manifestly, the note in suit is joint and several, and a joint .action may be maintained upon it, or two separate actions might have been brought upon it. (Code of Civil Procedure, § 967; Hemmenway v. Stone, 7 Mass., 58; Story on Promissory Notes, 957; Chitty on Bills [Am. ed. of 1839], 561.) As section 967 of the Code of Civil Procedure confers upon the court a discretion in respect to ordering a separate trial, the question presented upon review of the order is, whether the discretion was properly exercised. Obviously, it was made for the purpose of improving each maker as a witness for the other maker of the note.

It was settled, under section 399 of the Code of Procedure that, in a joint action upon such a promissory note, neither defendant could be used as a witness for his co-defendant. (Bennett v. Austin, 5 Hun, 536; Genet v. Lawyer, 61 Barb., 211.) This case also holds that though the suit was brought by the original holder, and afterwards revived in the name of his representative, makes no difference in the rule. (1871, Johnson and Talcott) ; Alexander v. Dutcher (70 N. Y., 386); affirming same case and same doctrine in 7 Hun, 439.

In that case Judge Bapallo remarks that no distinction was made between'cases where parties are called on their own behalf, or in behalf of co-defendants, or in cases where they are jointly and severally liable, and he adds : “ It might have been reasonable to make such distinctions, but we have no authority thus to supplement the act, which is clear and positive in its terms.” In .section 829 of the Code of Civil Procedure it is enacted, that “ a party to an action, or a party interested in the event, * * * shall not be examined as a witness in his own behalf or interest ” * * * concerning a personal transaction or communication between the witness .and the deceased person. * * * This section is one in .which limitations are provided for under a general rule laid down in the next antecedent section, 828. The limitation is against a party or person interested being a witness “in his own behalf".”

When he is offered for another party, the words of the statute do not exclude him, unless he is examined “ in his own behalf or interest.” Of course, his testimony cannot be used in his “ own behalf,” or in behalf of his interest,” because of the inhibition of the statute. (Waver v. Waver, 22 Sup. Ct. Repts. [15 Hun], 278; opinion by Talcott, P. J.) But if the accommodation maker is offered as a witness in behalf of the other party, it cannot be said, that his examination is in behalf of such maker, or in his interest, and that he is interested to have the principal fixed and thereby made to pay. But, if he proposes to testify so as to discharge the principal debtor, would he be testifying in behalf of his interest? (Code of Civil Procedure, § 829.)

However, when the maker is examined for his surety, it may be said that he is interested to obtain the discharge of the surety, as he then would escape a liability to respond to the surety in the event he was made liable in the action. (Deck v. Johnson, 30 Barb., 290; Konitzy v. Mayor, 49 N. Y., 571; Tilden v. Gardiner, 25 Wend., 663; Jones v. Savage, 6 id., 658.)

If these conclusions are correct, the parties to this action could be examined, to the same extent if' the action be not severed, as they could if it was separated, and vice versa. Section 1205 of the Code of Civil Procedure confers a discretion upon the court to sever an action when a several judment may be entered. In this action a separate judgment might be entered. (Sections 454, 456, 967.

But, if the defendants in this case can be witnesses for each other to the same extent in the action joint as originally brought, what need for a severance ? If no need for a severance then the order for a separate trial is not based upon any recognized ground, and should be reversed.

Such, an order is reviewable upon the merits. (Hanover Fire Insurance Company v. Tomlinson, 58 N. Y., 216.)

For the reason that the defendants are in no better situation as to being witnesses for each other by the severance, there was no valid ground for the order requiring the action to be severed, and the order of the county court should be reversed, without costs.

Talcott, P. J., and Smith, J., concurred.

Order appealed from reversed, without costs to either party.


text:
    CHARLES BOLAND, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
    Larceny— evidence as to stealing property other than that charged in indictment — when inadmissible.

    Plaintiff in error was indicted and tried for stealing rope from a vessel named in. the indictment. Upon the trial a witness was allowed to testify that another rope, found with that charged in the indictment to have been stolen, had been, stolen from another vessel; no evidence was given as to the time this rope was stolen, or which tended to show it had ever been in the prisoner’s possession. Held, that the evidence was improperly admitted.
    Writ of Error to the Recorder’s Court, of the city of Oswego,, to review the conviction and sentence of the plaintiff in error of petit larceny. The property described in the indictment was rope taken from the vessel “ Mystic Star.”

      J. B. Higgins, for the plaintiff in error.

      B. F. Chase, district attorney, for the defendants in error.
   Hardin, J.:

The plaintiff in error was indicted with one Cavanah for stealing ropes from the schooner “Mystic Star,” in the city of Oswego. The proof tended to show that they were seen in the vicinity of the schooner about the time the property was stolen. It was taken some 150 feet from the schooner and concealed in a hole under a building. From there it was taken to a junk shop and sold by Cavanah to one Brown. The plaintiff in error was not shown to have sold it, or to have taken any part in its removal to Brown’s. There was evidence sufficient to submit to the jury the questions,- as to whether the property seen in the hole was the property found at Brown’s, and as to whether it was the property which came from the schooner “ Mystic Star.”

The People called, as a witness, one Delarum, and he gave evidence in regard to a piece of rope which he took to be a piece of the boom pennant from off the vessel “ M. J. Cummings.” It was not shown that the boom pennant was ever in the possession of the prisoner. Delarum was asked if the rope was stolen by somebody from his vessel. This was objected to, and allowed against the prisoner, and he took an exception. The witness stated it wras stolen from his vessel. The witness then stated that he did not see any of the rope at the hole or junk shop. lie also said in respect to the rope he saw at the police office, viz.: “ I did not see anything there long enough that I could testify to, only this piece [pointing to a piece of rope three feet long, in witness’ hand], and this, according to the best of my belief, is ‘ M. J. Cummings’ ‘ floating pennant.’ ” The prisoner’s counsel asked to have this evidence stricken out, and the court refused, and the prisoner took an exception. There was no evidence given, showing when the property was taken from the “ M. J. Cummings,” nor was there any direct or positive evidence showing the property in the possession of the prisoner.

The learned district attorney for the People insists that this evidence was competent, and properly admitted by the court. He refers us to numerous cases, to the effect that where a party is indicted for receiving stolen property, evidence of similar goods to those described in the indictment being in the possession of the prisoner, and which had been stolen, is admissible. (Copperman v. People, 1 Hun, 15; S. C, affirmed, 56 N. Y., 591.) In all these cases, the evidence was received for the purpose of fixing a guilty knowledge in the prisoner that the goods were stolen, .which he received. But to warrant the introduction of such evideuce, there must be such a close connection of facts and circumstances, as that a natural inference may be drawn, that if a prisoner knew one article was stolon, he would also be chargeable with knowledge that the other was. (Coleman v. People, 55 N. Y., 91; opinion by Allen, J.; People v. Spielman, 20 Alb. Law Jour., 96.)

The learned district attorney also cites us to section 650 of Wharton’s Criminal Law [6th ed.] That section states, that on a trial for larceny, “when identity is in question, evidence is admissible to show that other property, which had been stolen at the same time, was in the possession of the defendant at the time he was in possession of the property charged in the indictment.”

But, in the case in hand, there was no sufficient evidence that the boom pennant from oif the “ M. J. Cumipings” was ever in the possession of the prisoner. Indeed, the evidence is very slight that the property charged in the indictment to have been stolen was ever in the possession of the prisoner, though, as before stated, there was sufficient to require the question, in respect to it, to be submitted to the jury. But it was so slight that we cannot say that the' jury would have convicted the prisoner, if the evidence, as to the boom pennant, had not been submitted also to the jury.

We cannot, therefore, disregard the error, in the court, in receiving evidence in respect to property not charged in the indictment to have been stolen by the prisoner. The case of Bielschofsky v. People (3 Hun, 40), was one in respect to false pretences, and is distinguishable from this one, as the evidence of other cotemporaneous representations, than those stated in the indictment, were received for the purpose of establishing guilty knowledge in the prisoner of those charged in the indictment. The case of the People v. Caryl (3 Park. C. B., 327) is not in point. The prisoner was indicted for an assault in an alleged improper removal of a passenger from a railroad car. The defence was that he had been guilty of disorderly conduct on his whole trip, and it was held that evidence thereof was admissible, as bearing upon the propriety of his removal from the car of the defendant. If the prisoner, in the case before us, had been shown to have sold the goods charged in the indictment, and also property which was stolen from the vessel “ M. J. Cummings,” another question would have been presented, and one which, under the authority of Weyman v. The People (11 Sup. C. R. [4 Hun], 511), might, perhaps, have been resolved in favor of the prosecution.

In the case before us, we cannot say that under any exception to the general rule, that where a prisoner is charged with one «crime, evidence tending to show him guilty of another cannot be received, the ruling was correct. (People v. Casey, 72 N. Y., 394.) The evidence objected to, and retained against the prisoner’s exception, should have been rejected. Although the jury might have convicted if such evidence had not been received, we cannot usurp the province of the jury and «disregard the error.

We must, therefore, reverse the judgment and conviction, and award a trial ele novo in the Eecorder’s Court of the city of Oswego, to which court the proceedings must be remitted, with directions for a new trial.

Talcott, P. J., and Smith, J., concurred.

Conviction and. judgment reversed, and proceedings remitted to the Eecorder’s Court of the city of Oswego, with directions for a new trial.


text:
    R. GROSVENOR WILLIS, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Obtaining money by false pretences— accused must be shown to have received it.

    "Where an indictment alleges that the prisoner did, by certain false representations, induce a person to deliver to him certain notes and money^ a refusal to charge that a conviction could not be had, if it was found that the prisoner did not obtain or receive the note or money, or either, is error.
    Proof simply that they were received by a third person will not suffice.
    Writ of Error to the Court of Sessions of Erie county, to review the conviction of the plaintiff in error of obtaining -money by false pretences.
    The prisoner was convicted, of obtaining a note of |200 and fifty dollars in cash, of one Cummings.
    By a deed,- dated on the 9th day of May, 1874, and acknowledged the 11th of the same month, Samuel J. Stewart conveyed to Abel Cummings a piece of real estate, and the prisoner represented to Cummings- that Stewart then had title thereto, though he knew, at the time of the representation, that the fact was otherwise, as he had taken a deed on May 8, 1874, lor the same land from Stewart, and had subsequently, but prior to the date of the Cummings deed, put it on record. The $200 note, made by a third party, and the fifty dollars cash, constituted the consideration for the Stewart deed, and both note and money wore handed over to one Larkin by Cummings. The evidence showed that Stewart did not own the land and could not convey the same, as the prisoner well knew.
    The indictment alleged that E. Grosvenor Willis, on the ninth day of May, in the year of our Lord, one thousand eight hundred and seventy-four, at the town of Marilla, in the county aforesaid, with the intent then and there feloniously to cheat and defraud Abel Cummings, did then and there feloniously, unlawfully, knowingly and designedly falsely pretend and represent unto the said Abel Cummings that one Samuel J. Stewart held and owned the title to a certain piece of real estate, describing it; that he, the said Samuel J. Stewart, was the owner of the said real 'estate, aforesaid, and that the said Samuel J. Stewart, for the sum of $250, would convey the title, and the said Abel Cummings, then and there believing the said false pretences and representations so made, as aforesaid, by the said E. Grosvenor Willis, and being-deceived thereby, was induced, by reason of the false pretences and representations so made as aforesaid, to deliver, and did then and there deliver, to the said E. Grosvenor Willis certain bank notes and bills, and written and printed promises for the payment of money issued by the United States as money, commonly called treasury notes, a further or more particular description of which said bank notes and bills and of which said treasury notes is to the jurors aforesaid unknown, but of the value in the aggregate of fifty dollars, and a certain promissory note for the payment of $200, and of the value of $200, being then and there unpaid and unsatisfied, made and given by one Corey Shepard to the said Abel Cummings.
    The prisoner’s counsel further asked the court to charge the jury that the prisoner cannot be convicted under this indictment, in case the promissory note or property, or the whole thereof, was paid to Larkin, even though Cummings was induced to pay the same to Larkin by the false representations of the prisoner, in case the prisoner received no part of the property or money.
    The court refused so to charge, and the prisoner’s counsel duly excepted.
    The prisoner’s counsel further asked the court to charge the jury that, in order to convict under this statute, the person indicted must receive the money, property or other valuable thing, or some part thereof.
    The court refused so to charge, and the prisoner’s counsel duly excepted.
    The court thereupon charged the jury as follows : “It seems to be a material, point, and I will charge you that if a person makes false and fraudulent representations of a then existing fact, knowing them to be false, that it is not necessary that the person should have received the property.”
    To this charge the prisoner’s counsel duly excepted.

      Thomas Corlett, for the plaintiff in error.

      JR. C. Titus, district attorney, for the defendant in error.
   Hardin, J. :

The conviction of the prisoner by the jury, of obtaining property by means of false pretences, was upon evidence supporting the averment of false statement, and that it was made with intent to cheat, and there was evidence which would have justified a finding that the prisoner “ obtained for himself, through Larkin, his agent or appointee, the note of $200 and the fifty dollars of cash. But the court refused to charge that a conviction could not take place if it was found that the prisoner did not obtain or receive the note or money, or either. To that charge there was an exception. The court charged that it is .not necessary that the prisoner-should have received the property. This was excepted to by the prisoner. This charge is contrary to the rule laid down, in Reg v. Garrett (1 Dears C. C., 232). That case was so far approved by the case of The People ex rel. Phelps v. General Sessions (13 Hun, 400) that we should follow it. The opinion of Davis, P. J., is to the effect that the parts of the charge already stated are not correct. (See, also, Wood v. People, 53 N. Y., 511.) The same opinion-states reasons for upholding the sufficiency of the indictment before us, as it avers that the prisoner obtained the property described. The evidence in the case points strongly to-the guilt of the accused, and possibly the same result would have-been reached by the jury, had the instruction asked for been given by the trial judge. The cases quoted require us to hold that the exceptions stated above were well taken, and to reverse-the conviction and judgment thereon, and to remit the proceedings to the Court of Sessions of Erie .county for a new trial.

Present — Talcott, P. J., Smith and Hardin, JJ.

Conviction and judgment reversed, and proceedings remitted to the Erie Sessions, with a direction for a new trial.


author: Smith, J.;

text:
    JOHN ANDREWS, Respondent, v. MORRIS KEELER, Appellant.

      A note, after the matwritij thereof, rums at the rate of interest specified therein until it is merged in a judgment thereon.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. One of the causes of action stated in the complaint was on a promissory note made by the defendant.
    With reference to this, the court at General Term said: “ Another item of the plaintiff’s claim was a promissory note made by the defendant, dated April 17, 1867, for $775.10, payable ten days after date, with interest at six per cent. The referee, after deducting all payments proved, allowed the plaintiff interest on the balance, at the rate of seven per cent, from the time of the maturity of the note. In this, we think he erred, the true rule being that the interest is to be computed at six per cent according to' the rate prescribed by the contract, until it ceases to operate by being merged in the judgment. (Miller v. Burroughs, 4 Johns. Ch., 436; Van Beuren v. Van GaasbecJc, 4 Cow., 496; Gromwell v. County of Sac., 96 U. S. Sup. Ct., 51; S. C., 17 Alb. L. J., 264.) ”

      S. Bdwin Day, for the appellant.

      TV. B. Hughett, for the respondent.
   Opinion by

Smith, J.;

Talcott, P. J., and Hakdin, J., concurred.

Judgment reversed and new trial ordered before another referee, costs to" abide event, unless the plaintiff will stipulate that the judgment be modified by striking out the sums allowed by the referee upon the two instruments dated January 7, 1869, and also by computing interest on the promissory note of April 17, 1867, at six per cent instead of seven per cent, and reducing the recovery thereon accordingly, and that in such case the judgment, as so modified, shall be affirmed, without costs of this appeal to either party as against the other.


text:
    JACOB KOHLBRENNER, Appellant, v. GEORGE ELSHEIMER, Respondent.

      Action of trespass injustices’ court in Buffalo — plea of title — when Sv/perwr Court of Buffalo has exclusive jurisdiction — when the Supreme Court has jurisdiction — section 12, chapter 96 of 1854 — the undertaking given on a plea of title must comply with its provisions — Code, § 56.
    Appeal from a judgment entered upon the report of a referee, dismissing the complaint, on the ground that the court has not jurisdiction of the action.
    The action was brought to recover damages for alleged trespasses upon plaintiff’s land, in the town of Cheectowaga, Erie county. Before this suit was commenced, the plaintiff had sued the defendant for the same cause of action, before a justice of the peace, in the city of Buffalo. In that action the defendant interposed a plea of title, and gave an undertaking, conditioned that if the plaintiff should, within twenty days from the date thereof, deposit with the justice a summons and complaint in an action in the Supreme Court, for the same cause of action, etc., the defendant should, within twenty days of such deposit, give an admission in writing of the service thereof. Thereupon the suit before the justice was discontinued and this action was commenced.
    The court at General Term said : “ The decision of the referee was put upon the ground that the action in the justice’s court was discontinued by a plea of title, and thereupon exclusive jurisdiction of the subject-matter of the action was vested in the Superior Court of the city of Buffalo, under the twelfth section of chapter ninety-six of the Laws of 1854. The position assumes that the defendant took all the steps before the justice, necessary to work a discontinuance. Among other things, it was necessary that he should give an undertaking, conditioned as required by the statute. The same section twelve requires that the condition be, that the defendant shall give an admission of the service of a summons and complaint in the Superior Court if the plaintiff shall deposit such summons and complaint with the justice. The undertalcing given by the defendant did not contain that condition. It bound the defendant to admit service of a summons and complaint in the Supreme Court. It did not comply with the statute referred to, and if, as the appellant’s counsel contends, the Supreme Court had not jurisdiction to entertain the action, the undertaking was a nullity. The plea of title was, therefore, ineffectual to work a discontinuance, and the suit before the justice was discontinued by the voluntary action, of the plaintiff. The subsequent suit in the Supreme Court is to be regarded as an original action. That court having general jurisdiction of actions for trespass upon land, the referee erred in dismissing the complaint.
    “ It is true the referee found that the defendant delivered to the justice an undertalcing as required by the statute, and that the ac tion in the justice’s court was discontinued, and this action was commenced pursuant to the statute. The statute referred to in the finding is section fifty-six of the Code of Procedure. That such is the case, is evident from the statement in the present case of the concession made by the parties on the trial before the referee, and also from the undertaking itself, a copy of which is contained in the appeal papers. That section requires that the undertalcing shall be conditioned to admit service of a summons .and complaint in the Supreme Court. If the provisions of the Code control the case, this court obviously had jurisdiction of the new action; if they do not apply, and the case is governed by section twelve of the act of 1854, the undertaking given was a nullity.
    “ This view of the case renders it unnecessary for us to decide ■which of the statutes referred to applies to the case, as in either alternative, this court has jurisdiction of the present action.”

      Frank R. Perkins, for the appellant.

      P. A. Mattison, for the respondent.
   Opinion by

Smith, J.;

Talgott, P. J., and Hardin, J., concurred.

Judgment reversed, and new trial ordered before another referee ; costs to abide event.