author: Andrews, J.

text:
    The People, Resp’ts, v. Joseph Tice, App’lt.

      (Court of Appeals,

      Filed March 15, 1892.)

    1. Homicide.
    • Defendant and his wife had frequent broils after their marriage, both of them drinking to excess. About a year before the homicide he stabbed his. wife and himself and "a few months thereafter she caused him to be sent to the penitentiary for drunkenness. On the day before the homicide, defendant was seen sharpening a knife in a handle unlike any used in the shop where he worked, which he did not carry in his hand when he entered the house on the day of the crime. He made various efforts-through others to have his wife live with him again and finally importuned her to do so, and on her refusing and attempting to leave him followed her and stabbed her to death. Meld, that the evidence justified the verdict of. guilty.
    2. Same—Defense of insanity—New tbiad.
    It was shown that defendant when sober was kind and industrious ; that he had been afflicted with locomotor, ataxia; that he had attempted suicide by poison and by stabbing, and that he had stood in front of a house where he thought his wife was, waving his handkerchief to any female he saw coming out. Meld, that the evidence in support of the defence of insanity • was very weak, and this court would not grant a new trial in such a case, unless it reached the conclusion that injustice had been done or that there-was á strong probability that injustice had been done in the disposition, made of the case by the jury.
    3. Same—Evidence.
    An accused person who becomes a witness in his own behalf, thereby places himself in the attitude of any other witness in respect to the right, of cross examination, and where the direct examination has been limited to questions as to age, place of birth and of honorable service in the-rebellion, this does not prevent the public prosecutor from asking questions as to dates and places in order to test witness’ memory and questions-bearing upon the facts brought out on the trial, as to whether he ground a. knife the day before the homicide and whether he asked his wife to again live with him.
    Appeal from judgment of Monroe county oyer and terminer convicting defendant of the crime of murder in the first degree, James G. Greene, for app’lt; George A. Benton, dist. att’y, for resp’ts.
   Andrews, J.

A perusal of the case leaves no doubt that the-evidence justified the verdict The fact that the defendant caused the death of his wife is undisputed, and the elements of intention, motive, deliberation and premeditation are found in the proofs on the part of the prosecution. The defendant in the afternoon of July 11,1891, entered the house of Mrs Kelil, where his wife had resided for several months in the capacity of a domestic, and seated himself in the room where his wife and Mrs Kehl were. His wife was standing at a table engaged in washing dishes He asked his wife if she would consent to live with him, and she said, “Ho, I will never trust you again, because you stabbed me once, and I laid at the point of death in the hospital, and I will never trust you again.” He asked her a second time if she would not live with him, and she again, refused. Mrs. Kehl left the room for a moment, and when she returned she testified that the defendant was standing by the table with one hand on the shoulder of his wife, and with the other making motions as if striking at her in front His wife made an exclamation and ran out of the door into the yard. The defendant followed her and plunged a knife into her back, and left it in her body. She started again to get away, and the defendant overtook her and pulled the knife out ■of her body and returned to the steps of the house, holding the bloody knife in his hand. He remained on the steps a few moments and then crossed the yard into the street, and was shortly ■afterwards arrested. The wife fell near the gate, and soon died.

The autopsy disclosed three fatal knife wounds on her person, two in front and one in the back.

The intention of the defendant to kill his wife was clearly established by the circumstances immediately attending the homicide. The evidence of deliberation and premeditation disclosed by the circumstances of the assault was supplemented by other proof. It was shown that on Friday (the day before the homicide) the defendant, who worked in a shop for. the manufacture of wood mouldings, was seen sharpening a knife like the one with which the wounds were inflicted. It was a knife in which the blade was firmly set m the handle, not movable, and different from any used in the shop. When he entered the Kehl house, on the day of the homicide, the knife was not in his hands, and. the inference is that it was concealed upon his person.

The motive which prompted- the murder was sought to be disclosed by proof of the relations existing between the defendant and the deceased. They were married in 1867, both parties having been married before, and both having had children by the former marriage, They had frequent broils after their marriage, attributable in the main, as the evidence tends to show, to their habit of drinking intoxicating liquors. The husband frequently came home drunk and the wife occasionally drank to excess also. About a year before the homicide, while they were living together at Mrs. Kehl’s, the husband stabbed his wife and afterwards stabbed himself. The wife a few months before the homicide caused her husband to be arrested and sent to the penitentiary for drunkenness, and he was discharged from the penitentiary July 4, 1891, a few days before the homicide. The husband also .on one occasion caused his wife to be arrested for drunkenness.

The parties separated in the spring of 1891, and did not thereafter live together, but the husband exhibited great anxiety to have his wife live with him again, and- expressed to many persons great affection for her. He frequently importuned her to consent to live with him again, and solicited Mrs. Kehl and other persons to influence her to do so. But she persistently declined. On the day before the homicide he sought to get a married daughter of the deceased to induce her mother to live with him. Later on the same day (Friday), according to the witness Mrs. Kehl, the defendant told her he heard his wife was going to Canada and he said, ‘‘I will spoil her fun.'-’ And on Saturday morning (the day of the homicide), he went to Mrs. Kehls’ and she told him not to come again, and he went away and returned in the afternoon, when the homicide was committed.

This brief recital of some of the circumstances shown by the evidence for the People, is sufficient to disclose an ample justification for the verdict. If the jury credited the evidence it showed, a homicidal act, intentionally done, with deliberation and premeditation, prompted by a definite human motive, or incited by anger or resentment

The defense was insanity. The jury found against it, and the evidence in its support was very weak. It was shown that when sober the defendant was a kind and industrious man. It appeared that he had been afflicted for some years with what the physicians called locomotor ataxia, which they described as a disease of the nervous system, producing extreme irritability and sleeplessness, affecting the movement of the limbs, rendering the brain more susceptible than it otherwise would have been to the influence of stimulants and impairing the memory. Five or six years-before the homicide the defendant had attempted suicide by taking poison on account of his domestic troubles, and again attempted to stab himself on the occasion previously mentioned.. He exhibited eccentricities of conduct for some time before the-homicide. Witnesses testified to seeing him early in the morning standing in sight of Mrs. Kehl’s -house watching apparently for his wife, and waving his handkerchief to any female he saw-coming out of the house

The court in a fair charge submitted all the facts to the jury. Upon reviewing them we are unable to reach the conclusion that the case calls for the exercise of the jurisdiction to grant a new trial, conferred upon this court by chapter 493 of the Laws of 1887. That authority, as we held in the case of Ciganrale, 115 N. Y., 23; 16 St. Rep., 155, is to be exercised under the restraint of settled rules, and the court will not interfere with the verdict of a jury where it is supported by sufficient evidence, unless we reach the conclusion on the whole case that injustice has been-done, or that there is a strong probability that injustice has been done in the disposition made of the case by the jury.

The only exception which needs particular notice is that taken to questions put by the public prosecutor to the defendant on his cross-examination. The defendant was called and sworn as a. witness in his own behalf, and his examination in chief was confined to questions calling for his age, nativity, place of birth, and the fact that he served as a soldier in the war of the rebellion,, having enlisted- twice, and that he was honorably discharged. The public prosecutor then proceeded to cross-examine him, and was permitted under objection to ask him a variety of questions r First, questions relating to events in his life, with the dates and places, when and where they occurred, not disparaging in their character, but which served to illustrate and test the memory of the defendant, and, second, questions bearing upon some of the-facts brought out in the course of the trial. For instance, the prosecutor asked him whether he ground a knife the day before the homicide, and whether he had asked his wife several times to live with him, and whether he saw her on Friday, and to this question he replied that he did, and that “ she insulted him, and used very bad language.” .

These questions had no relation to the facts brought out in defendant’s examination in chief, nor did the facts elicited affect his credibility. But they were pertinent to the issue. The questions put to test his memory bore upon the truth of the claim made in his behalf, that his disease impaired his faculties, including his memory. The question as to the knife he answered in the negative. His testimony that he saw his wife on Friday and that, she ■abused him, bore on the question of motive. It was competent for the prosecutor to show the state of feeling between the defendant and his wife, and that their relations were hostile. Any circumstances tending to explain the motive for the homicide, or from which the jury might draw the inference that the defendant was prompted by anger or resentment, were admissible. The objections taken to the questions put to the defendant on cross-examination are based upon the constitutional provision, that no person shall be compelled in any criminal case to be a witness against himself. Const., art. 1, § 6.. This provision was aimed at the practice which in early times prevailed in England and on the continent of Europe of subjecting accused persons to torture in order to extort confessions of guilt, and the modified practice which prevails in some countries to subject them to judicial examination, in the absence of counsel, in order to probe the conscience and induce a statement of criminating facts bearing upon the. charge which is the subject of the inquiry. The constitutional provision protects persons charged with crime against such inquisitorial and compulsory proceedings.

Under the rule of the common law an accused person was not permitted to be a witness in his own behalf. This rule has been changed in this and other states by recent legislation.

The law of this state provides that “ The defendant (in a criminal case) in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him.” Code Grim. Pro., § 393. The law, so far as it can, protects a defendant who omits to be sworn from having that fact weigh against him.

In construing this recent legislation there has been much contrariety of decision in different states as to the scope of the right of cross-examination of the accused person who has become a witness under these enabling statutes. In some of the states the rule has been adopted that by becoming a witness for himself he thereby subjects himself to the same rules of examination as any ■other witness, and may be asked any questions on cross-examinatian on matters pertinent to the issue, or calculated to test his accuracy, veracity or credibility, subject to the power of the court in its discretion to limit and regulate such, examination as in cases of other witnesses.

In other states it has been held that the right of cross-examination under these statutes is confined to matters referred to in the examination in chief, and that the witness cannot be required to testify as to other fact's material 'to the issue, or as to events in his life, for the purpose of affecting his credibility or character.

The differences in the decisions in different states are attributable in part to a difference in the language of the statutes. Some of the statutes in terms limit • the cross-examination to matters referred to in the examination in chief. In neither of the two -classes of decisions is there, we apprehend, any invasion of the constitutional provision referred to. The accused is not compelled to become a witness. When he avails himself of the privilege conferred by the statute, he subjects himself voluntarily to the situation of any other witness, and if he is compelled to answer disparaging questions, or to give evidence relevant to the issue which is injurious, it is the consequence of an election which he makes to become a witness, which involves a waiver on his part at that time of the constitutional exemption. If he accepts the privilege given by the statute, he takes it with its attendant «dangers. “ His own act is the primary cause, and if that is voluntary he has no reason to complain.” Church, Ch. J., Connors v. People, 50 N. Y., 242.

The principle that an accused person who becomes a witness in his own behalf thereby places himself in the attitude of any «other witness in respect to the right of cross-examination has been announced in many cases in this court. Brandon v. People, 42 N. Y., 265; Connors v. People, supra; Stover v. People, 56 N. Y., 315; People v. Casey, 72 id., 394.

The same rule has been declared in the courts of Massachusetts, Maine, Hew Hampshire and other states, under statutes similar to the statute of this state. Com. v. Mullen, 97 Mass., 545; State v. Witham, 72 Me., 531; State v. Ober, 52 N. H., 459.

The cases in this state were those where exception was taken to rulings permitting questions affecting the credibility or the moral character of the accused. But if the constitutional protection can be interposed at any point in the examination, we do not perceive any logical reason why it may not be invoked to protect the accused against answering questions affecting his credibility and also' to prevent an examination as to relevant facts, or, indeed, as to any fact, whether pertaining to his testimony in chief or not. This broad view of the scope of the constitutional exemption seems to be the one entertained by Judge Cooley, Const. Lim., 317, but it is not in harmony with the decisions in this state and does not seem to us to be sound in principle. The «statute permits the accused to be a witness. This must mean a witness generally in the cause, and not that he may be a witness :as to such matters only as to which he may choose to testify. This being the construction put by our courts upon the statute", there is no constitutional right infringed if the accused, having elected to take the stand as a witness, is subjected to the ordinary rules of examination.

The^ range and extent of the cross-examination is within the ■discretion of the trial judge, provided only that it relates to relevant matters or to matters affecting credibility. The trial judge may properly restrict the cross-examination of accused persons within narrower limits than in ordinary cases, but the latitude allowed is a matter for the trial judge.

The questions put to the defendant to test his memory were relevant to his defense of insanity and were plainly competent. The questions tending to show the unpleasant relations between the witness and the deceased at or about the time of the homicide were relevant on the question of inducement and motive. This, was a part of the case of the People, but it is the constant practice in civil and criminal trials to .permit the plaintiff or the People to fortify their own case by facts elicited on cross-examinatian of the witnesses for the defense. The matter - is subject to the regulation and discretion of the trial judge.

There was no error therefore in permitting these questions to be asked. That the answers to the questions respecting the interview between the defendant and his wife on the day preceding the homicide in fact did him no harm is evident, since the same-transaction had been brought out by the defendant’s counsel on a. prior examination of a witness for the defendant.

There is no ground for interfering with the judgment, and it should be affirmed.

All concur.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    Mortimer F. Reynolds, Resp’t, v. Arthur W. Lawton, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Promise—Statute oe erauds.
    Defendant purchased the interest of two partners in a firm which occupied rooms in plaintiff’s building, and as part consideration for the purchase agreed to pay the rent then due from the firm. Held, that plaintiff could maintain an action upon such promise; that it was founded on a good consideration and was not within the statute of frauds, as it was a promise by defendant to pay his own debt in a particular manner.
    2. Evidence—Conclusion.
    A question put to a party as to whether he in any way held himself out as a partner, is objectionable as calling for a conclusion of law.
    Appeal by the defendant from a judgment of the county court of Monroe county, entered on the verdict of a jury in an action first tried in the municipal court of Eochester, and appealed to the county court for a new trial.

      Turk & Barnum, for app’lt; G. J. Bissell, for resp’t.
   Dwight, P. J.

The action was to recover for rent of apartments in the Eeynolds Arcade in Eochester. They had been occupied by a firm composed of three persons, Eay, Austin & Bowdish, doing business under the name of The Arcade Photograph Company. There is evidence to support the plaintiff’s theory of the case, viz., that this copartnership was indebted to the plaintiff for five months’ rent at fifteen dollars per month when the defendant bought out the interest of the two partners, Eay and Austin, in the stock, fixtures and business of the firm, with the consent of Bowdish and with the view of continuing the business in partnership with the latter; that in making such purchase, and as part of the consideration of it, he assumed and agreed to pay the rent of the rooms then due to the plaintiff, as above mentioned.

This evidence was not uncontradicted, but we are not at liberty to inquire, on this appeal, as to the relative weight of the evidence, for the reason that there was no motion for a new trial in the county court. Reilley v. The D. & H. Canal Co., 102 N. Y., 383; 2 St. Rep., 419; Boos v. World Mut. Life Ins. Co., 64 N. Y., 236, 242. We must,-therefore, assume the facts stated to have been found by the jury on sufficient evidence.

Such being the facts, the case seems to be directly within the doctrine of Lawrence v. Fox 20 N. Y., 268, and to stand upon the best reason which has been given for sustaining an action by ■a party not privy to the contract, nor its consideration, upon which the action is brought. It is the case of a promise by the defendant to pay his own debt to Ray and Austin by paying their debt to the plaintiff. There has never been any question but such a promise could be enforced by the person for whose benefit it was made. It was for a good consideration, viz., the transfer of the partnership interest of Ray and Austin; it was not within the Statute of Frauds, because it was a promise by the defendant to pay his own debt in the particular manner specified; it was solely -and directly for the benefit of the plaintiff, and it could be enforced by him under the unquestioned doctrine of Lawrence v. Fox.

The cases industriously collected by counsel for the appellant, in which it has been'held that the contract was not within the doctrine here applied, were variously distinguishable from the -case at bar, and are not within Lawrence v. Fox, by reason of such distinctions.

The instructions as to the effect of - defendant’s omission to call "the other parties to the contract with him was, we think, properly qualified.

The objection to the question put to the defendant by his own -counsel: Did you in any way hold yourself out as a partner ? ” was properly sustained on the ground, specified on this trial, that it called for a conclusion of law.

There was, we think, no error committed on the trial which vitiates the verdict

The judgment must be affirmed.

Judgment of the county court of Monroe county affirmed.

Macomber and Lewis, JJ., concur.


text:
    Pamelia Pangburn, Resp’t, v. John Crowner, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Conversion—Title to personal property.
    In an action for conversion of cows which, had been driven off plaintiff’s premises in the night by her husband, from whom defendant claimed to have bought them, it appeared that plaintiff had supported the family and had earned money which she kept with her husband’s consent, and with which she purchased said cows; that she had purchased feed for them on her own credit, and had permission of the owner to occupy the premises where they lived. Held, sufficient to overcome the presumption that the cows belonged to the husband and to show title in her.
    3. Husband and wife—Gifts.
    An executed gift from a husband to a wife is perfectly good, except it is made in fraud of creditors.

      Appeal by the defendant from a judgment entered in Allegany county, on the report of a referee.
    Wm. Spargur, for app’ltBlackman & Hall, for resp’t
   Dwight, P. J.

The action was trover for a number of cows; They were driven off in the night by the plaintiff’s husband from premises occupied by her, and neither husband nor cows ever came back. The cows were found the next day in the possession of the defendant, who claimed to have bought them.from the husband and refused to return them on demand. The only question was-of the title to the cows at the time they were driven away, and the finding of the referee in that respect was perfectly well supported by the evidence. The plaintiff had been married to Pang-burn for upwards of forty years, and during that time had evidently been at the head of the household.' Besides taking care of her family she had done a good deal of work for others, and-earned some money which, with the consent of her husband, she-kept and used as her own. So too, she had for her own the money for the butter which she made. Most of this money, from both sources mentioned, she spent for family uses, but some of it she-invested from time to time in the cows which are the subject of this action. She generally bought the feed for the cows, and when the money was not paid for it, it was charged to her. It was to-her that permission was given by one Dyke to occupy the little place where she and her husband had been living for several years, before the cows were taken. The right óf possession of the premises was in litigation during that time between Dyke and other claimants, and the latter gave to the plaintiff’s husband a lease-two or three years before this action was brought. The lease was probably given for the purposes of the ejectment action, and that, has since been determined against the lessors. What was .the cause of Pangburn’s desertion of his wife does not appear; it may perhaps be conjectured from a statement in her testimony to the effect that he never made her any trouble when he was sober.

The facts stated appear by the testimony of the plaintiff, corroborated in important particulars by disinterested witnesses. Her testimony is substantially uncontradicted except by that of her husband, which is seriously discredited by impeachment, and by proof of repeated statements to the contrary, on oath and otherwise. The effect of the testimony, as a whole, is clearly to overcome the presumption that the property in question belonged to the husband. If, or so far as, any part of her property or of the money with which it was purchased was to be considered as a gift from the husband, the fact would not affect the question of the plaintiff’s right. An executed gift from a husband to a wife-is perfectly good, except it is made in fraud of creditors; and there is no such question in this case. Neither is there any question here of any right in the defendant as a bona fide purchaser for value. He sent a man to help Pangburn drive away the cows-in the night, and he took them, ostensibly, on an outlawed debt, of Pangburn’s; though it is probable some other compensation, was made to the latter for his agency in the transaction.

We have no doubt of the correctness of the findings of the referee both as to the facts and the law of this case.The judgment must be affirmed.

Macomber and Lewis, JJ., concur.


author: Lewis, J.

text:
    In the Matter of the Accounting of Charles E. Gallagher, Committee.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Lunatic—Liability of committee fob negligence.
    Appellant was appointed committee of a lunatic and employed an attorney to act for him and allowed him to take entire charge of the estate. The attorney made some collections, hut conducted the business in a negligent manner, and retained the money collected. Held, that such moneys were collected by him as agent of the committee, and that the latter was chargeable with the amount thereof

      2. Same—Commissions.
    Where the negligence and inattention of the committee have resulted in a loss to the lunatic, commissions should not be allowed.
    Appeal by Charles E. Gallagher, late the committee of the person and estate of Hester A. Babcock, a lunatic, from the decree of the county court of Cattaraugus county, made in the above matter upon the settlement of the accounts of the appellant as such committee.
    -The decree appealed from was entered in the clerk’s office of said county January 3, 1891.

      William H. Henderson, for app’lt; Hudson Ansley, for Emma H. Babcock, committee, resp’t.
   Lewis, J.

The appellant was appointed committee of the person and estate of Hester A. Babcock, a lunatic, by the county court of Cattaraugus county on the 10th day of May, 1886, and soon thereafter entered upon the discharge of his duties as such committee.

He continued to act as such committee until the 7th day of August, 1889, when he was discharged from the said office, and the respondent was appointed committee, and on the 29th day of April, 1890, she instituted these proceedings to compel Mr. Gallagher to render an account of his doings as such committee. Gallagher filed his accounts. Mrs. Babcock made objections, and the issues came on for trial before the county court of Cattaraugus county.

That court made and entered a decree adjudging that Mr. Gallagher be charged with the total sum of $839, and that he be credited with the sum of $314.82, being disbursements made by him as such committee, leaving a balance in his hands of $524.18, which the decree required him to pay to Emma H. Babcock, the present committee.

The principal assets of the lunatic consisted of a claim against her brother, Orrin Babcock, of $600 and two houses and lots in the village of Salamanca.

Gallagher, instead of managing the estate personally, immediately after his appointment as such committee employed as his agent Mr. Inman, an attorney, and gave him full power to collect the claim against Orrin Babcock, and the rents from the houses and any other claims belonging to the lunatic.

Gallagher substantially paid, no attention personally to the business, but left it all with Inman.

Inman collected rents and the claim, or a portion of the claim, of Orrin Babcock and retained the money. Gallagher did not require him to pay over the money that he collected. Gallagher failed, during the three years and three months he was acting as such committee, to render any account of his trust. An action had been brought against Orrin Babcock by Hester A. Babcock to recover her claim of $600; the appellant, upon being appointed her committee, was substituted as plaintiff, and a judgment was recovered against Orrin for that sum; Mr. Inman acting as plaintiff’s attorney.

Inman managed the affairs of the estate in a very loose, careless and unbusiness-like manner; his accounts were kept so imperfectly that it was quite difficult to ascertain how the lunatic’s affairs stood.

The appellant was advised of the negligence of Inman, and he failed to take steps to bring him to account.

■It was fairly established by the evidence that Inman received from the claim against Orrin Babcock and from the rents of the lunatic’s real estate the sums found by the county court. While some of the evidence admitted by the county judge was of quite a doubtful character, there was sufficient proper and legal evidence given to sustain his findings. We think that Inman was acting as Gallagher’s agent in collecting the claim against Orrin Babcock, and that the county court properly held, in view of the negligent manner he had permitted the affairs of the estate to be managed, that he must account for the money paid to his agent, Inman.

In stating the amount, the court below overlooked the evidence showing that the appellant paid the forty dollars collected from Christie to the respondent, and that item should be credited to him. The only evidence as to the twenty dollars, which the appellant claims should have been credited, was given by Inman.

Inman’s entire evidence is very unsatisfactory; he seems to have forgotten pretty much everything he did in the business; that which he claims to have some recollection concerning, he is quite uncertain about.

He testified that he charged the referee’s fees of twenty dollars in the action against Orrin Babcock to the appellant, and then adds: “I charged $95.95 to Gallagher as costs in the Babcock suit; that was for costs in the case.”

The county court assumed, we think properly, that the referee’s fees formed a part of the $95.95 costs, in the absence of evidence to the contrary.

And as the appellant failed to prove what Inman’s services in the action were worth, he was not entitled to credit for the twenty dollars. ,

Gallagher testified that he paid little attention to the affairs of the estate. “ My time was so occupied, I allowed Inman to run it,” he said.

Through his negligence and inattention, the lunatic has failed to realize any interest upon the yearly balances due her, and we think the appellant was not entitled to any commissions because of his negligence.

The decree should be amended by crediting the forty dollars mentioned, leaving due from the appellant, as such committee, the sum of $484.80, with interest from the date of the decree; and as thus amended the decree should be affirmed.

No costs of the appeal should be allowed to either party.

Decree modified as above suggested affirmed, without costs to either party.

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


author: Macomber, J.—This

text:
    Charles P. Bowditch, Trustee, Pl'ff, v. Miles Ayrault et al., Impl’d, Def’ts.

      (Supreme Court, General Term, Fifth, Department,

      Filed January 22, 1892.)

    1. Will—Legacies—Vesting of.
    By the will of testator his residuary estate was given to the trustee, who was directed to convert the same into money and as fast as practicable to divide two-thirds thereof between the children of testator’s brothers and sisters, “who may be living at the time of my decease, and to the descendants of such of said children as may be deceased when said estate or any part thereof is distributed; said two-thirds of said residuary estate to be divided between all said children and their descendants equally, share and share alike; all the children of each deceased person to receive collectively the portion which their parent would, if living at such distribution, be entitled under this provision.” The amount which might ultimately come into the residuum could not be ascertained at the time the trustee qualified, as certain life estates and the funds of other trusts were to fall into the residue in the future. Held, that there was an evident intention that the distribution of the residuary estate should be among such of his nephews and nieces or their descendants as should be living at the time when there could be an actual division, and that the interests of the residuary legatees did not vest at the decease of testator.
    2. Same—Estoppel—Accounting.
    Where there have been several accountings and distributions betweem the legatees, they are estopped thereby as against the trustee from questioning the correctness of such accountings or holding him liable for any loss,-, but if he has proceeded on an erroneous basis and has sufficient funds in his hands to equalize the payments among the distributees, he should be: required to so distribute them.
    Appeal by the plaintiff from so much of the judgment entered' in Livingston county on the 27th day of July, 1891, on the report, of a referee, as adjudged that there was no estoppel as to any of the defendants by reason of any of the accountings heretofore "had, by this trustee and the former trustee under the will; also appeal by the defendant Sarah Felt and others from the same part of said judgment; also appeal by the defendant Florence Ayrault. from the whole of the judgment except that portion relating to> estoppel; also appeal by the defendants Elizabeth F. Ayrault and others from the whole of the judgment except that portion relating; to the estoppel.

      Strang & Doty (James 0. Smith, of counsel), for pl’ff; James
      Wood, for def’t Florence Ayrault; John P. Bowman, for def’ts Elizabeth F. Ayrault and others; John Rorbach, for def’ts Sarah Felt and others.
   Macomber, J.—This

action is brought to obtain a judicial construction of the twenty-fifth provision of the last will and testament of Allen Ayrault, so as to enable the trustee to make a final disposition of the trust estate now in his hands for distribution.

Allen Ayrault, the testator, died February 4, 1861, leaving a last will' and testament, the twenty-fifth clause or item of which created certain trusts in the residuary portion of his estate, and directed a division of the funds after the termination of the trusts. There has been paid out since the probate of the will, which followed soon after the death of the testator, the sum of $153,990 under this the twenty-fifth item. There now remains in the hands of the trustee the further sum of $38,000 for final distribution. On proceedings upon the trustee’s petition before the surrogate for a final settlement of his accounts, and for the discharge of the trustee under the will, a contest was made relating not only to where the present fund should go, but also touching the cor-. rectness and legality of past payments, and thereupon it was thought advisable to come into this court for a disposition of the question involved.

That portion of the twenty-fifth clause or item of the will material to this inquiry is as follows: “I give, devise and bequeath the rest, residue and remainder of my estate, both personal and real not hereinbefore disposed of, and such portions of the same .as shall remain after the trusts herein provided for are fully discharged and fulfilled, and the legacies herein given are paid in full, to my said trustee, to be by himself disposed of as follows: I direct him to sell and convey all such estate,' real or personal, and convert the same.into money or available means for such purpose, and dispose thereof as follows: I direct him, as fast as practicable, to divide two thirds of said residuary estate between all the children of my brother John Ayrault and my sister Mary Smith, widow of Sparrow Smith, and of my deceased brothers Nicholas Ayrault, Roswell Ayrault and Lyman Ayrault, and of my deceased sister Emily Griffith, who may be living at the time of my decease, and to the descendants of yuch of said children as may be deceased when said estate, or any part thereof, is distributed ; said two-thirds of said residuary estate to be divided between all such children and their descendants equally, share and share alike; all the children of each deceased person to receive collectively the portion to which their parent would, if living at such distribution, be entitled under this provision.”

The practical construction which, for thirty years, has been placed upon this provision of the will by the trustee and approved by the surrogate’s court in seventeen separate distributions of the funds arising from such trust, has been that the remainder over did not vest in the testator’s nephews and nieces or their descendants until the necessary moneys had been obtained from time to time for actual distribution among them; and that, in the event of the death of any of the residuary legatees before the time of the distribution, the legatee so dying had no vested interest in the residuary estate, but that the share which such legatee would have been entitled to if living vested upon such distribution in his descendants, if any, or, if none, then in the other residuary legatees, and, consequently, was not payable in any event to the personal representatives or assigns of the deceased legatee.

The referee found, first, that none of the defendants were es-topped in any manner by reason of the accountings which had been had by the plaintiff as trustee. To the second conclusion of law no exception has been taken by any of the parties to this action, and consequently no question on this appeal can arise thereon. The referee’s third conclusion of law was, that so much, of the residuary estate as was set apart by the other provisions of the will upon the trust therein specified, and was not to become a part of the residuum for distribution until after such trusts were fully performed, or which was necessary to provide for the payments of the several legacies, annuities and life estates provided for by the will, did not vest in the residuary legatees until after such trusts were performed and such life estates respectively were terminated, and said legacies and annuities were fully paid. The other conclusions of law stated by the learned referee were merely auxiliary to the foregoing principal findings.

The question, therefore, is whether, by the twenty-fifth provision of the will, the residuary estate vested in the legatees at once after the death of the testator, or at the time of actual distribution thereof among the residuary legatees. As bearing up> >n the construction of this portion of the will, it may be needful to look into other portions thereof. Upon reference thereto, it is found that the amount of the property which might ultimately come into the residuum was not ascertained nor ascertainable, either by the testator or by the executors and trustees at the time of qualifying. In the fourth item, the testator gave to his wife and to Nellie B. .Bond jointly, and to the survivors of them, certain specified personal property, with the proviso that such property should revert to and become a part of the residuary estate, in case Miss Bond should survive Mrs. Ayrault, and die without issue. The fifth clause contained like provisions concerning devises to the same parties of certain real estate. The sixth clause contained the devise of the use of two farms to these persons jointly during their lives, and to.the survivor during her separate life, the net proceeds of which were to be paid to them by the trustee, who was authorized to sell the same in his discretion, after ten years from the testator’s death, with the consent of the wife of the testator and of Miss Bond, and, in case of such sale, invest one-half of such proceeds; the remaining one half to become part of the residuary estate.

These farms, or the proceeds of the sale of them, were on the death of the survivor to become a part of the residuary estate. By the seventh section the trustee was directed to set apart out of the personal property the sum of $50,000, and pay the interest thereof to the widow and Miss Bond jointly during their lives, and to the survivor during her life, and the other one-half thereof upon the death of either of them to become part of the residuary estate, and on the death of the survivor the whole thereof was to fall into the residuum. The fifteenth section of the will contains a direction to the trustee to invest the sum of $5,000, the interest thereof to be paid annually to two beneficiaries named, and to the survivor of them, and after the death of such survivor, such sum to become part of the residuary estate. It is stated that one of these beneficiaries is still living, but it is understood by all parties that a sum in gross has been agreed upon to take the place of the annuity. The sixteenth section requires the trustee to invest the sum of $15,000, and to pay the interest on $12,000 thereof to a beneficiary named during his life, and on his death to pay the $12,000 to his children, the interest on the remaining $3,000 to be paid annually to the other beneficiary named during her life, and on her death this sum of $3,000 was to become part of the residuary estate.

These provisions of the will, though not essential, it is believed, to a proper understanding and construction of the twenty-fifth section, reflect, nevertheless, some light upon the subject of the general testamentary scheme which was in the testator’s mind.

In making a judicial construction of this will, very little direct aid can be obtained from the adjudged cases, excepting those relating to the disposition of the personal property only. The question here presented relates solely to a testamentary disposition of personal property, and that, too, not through the medium of an equitable conversion of real estate into money, for there was an actual conversion thereof by the very terms of the will, as well as by the practicable administration of the estate. There was no devise of real property in the residuary item of the will.

If, therefore, this circumstance is favorable to one class of persons who are parties to this action, as against others, the advantage to them comes from the difference in the nature of the tenure of personal property and of real estate, and which, though apparently slight, is often essential in ascertaining the true meaning ■of a will. This difference in the rule is recognized by the court in Snell v. Tuttle, 44 Hun, 331; 7 St.Rep., 615. Perhaps as philosophical and lucid a statement of it as may be found is contained in the note to the case of Delafield v. Shipman, 18 Abb. N. C., 297, to which our attention has been called by the learned counsel for the plaintiff. The doctrine is there adduced from the authorities that, if the gift is of personal property, while it is true that the law, as a general rule, favors the vesting of it at the time ■of the testator’s death, yet this tendency is restrained, in the absence of a different intent manifested in the will, by two rules which do not operate in the case of a devise of real estate, namely, -(1) that words of futurity, if annexed to the substance of a gift, will prevent vesting meanwhile; and (2), that unqualified words of survivorship are referred to the time of the future event, not to the testator’s death. See also analysis and review, in the same note, of the principal cases bearing upon the question.

A brief reference to the adjudged, cases which seem to bear closely upon the general principle involved, and which come as near as any to having a direct bearing upon this case, may now be made, so as to elucidate more clearly our rendering of this will

In the case of Teed v. Morton, 60 N. Y., 502, the testator devised certain real estate to his executors in trust to receive and apply the rents and profits to the use of his son during his life, then to sell and divide the proceeds among his son’s living children, and the issue of those who had deceased. If the son should die without leaving issue, then it was directed that the executors divide the same among the testator’s “ surviving children, and the issue of such of them as may have died leaving issue.’' At the time of making the will, and of the testator’s death, there were five children, and the issue of five deceased children, living. But the son, for whose benefit the trust had been created, died without issue.

It was there held, that the gift over was not to the children of the testator surviving him and to their issue exclusively; but that the issue of his deceased children also took, without distinction between those whose parents died before, and those who died after, the making of the will; and, further, that as the gift was in money, the general rule of construction applied, to wit, that words of survivorship in bequests are to be referred to the period of division and enjoyment, unless there is a special intent appearing in the will to the contrary; and that legacies to a class vest in those who answer the description and are capable of taking at the time of distribution. • The doctrine was reaffirmed in the case of Vincent v. Newhouse, 83 N. Y., 505. In the last named case, there had not been an actual conversion of the realty into personal property, as in the case now before us. But it was held that there had been an equitable conversion thereof, and that the rules of the survivorship in bequests of personal estate control, and were referable only to periods of distribution and enjoyment, unless there was made to appear a special intent to the contrary.

These two authorities are selected, out of a great mass of cases bearing generally upon the subject, for their special application to this case, and they are decisive.

Adopting the rules reaffirmed in the cases cited, the construction of the twenty-fifth section of the testator’s will does not seem tobe a complicated matter. That item or section contains a positive direction to the trustee to sell all of the estate, real and personal, and convert it into money, or available means, with the directions for the final disposition thereof as heretofore stated. It enjoins upon the trustee a division of two-thirds of such estate, “ as fast as practicable,” between all of the children of his brothers and his sisters “who may be living at the time of my decease, and to the descendants of such of said children which may be deceased when said estate, or any part thereof, is to be distributed; said two-thirds of said residuary estate to be divided between all such children and their descendants equally, share and share alike; all the children of each deceased person to receive collectively the portion to which their parent would, if living at such distribution, be entitled under this provision.”

The will nowhere contains any bequest to the children of his brothers and sisters other than is necessarily implied by the direction “to divide two-thirds of said residuary estate,” etc. This clearly contemplates a selection of legatees from those nephews and nieces who should be living at the time that any division of the residuary estate might be made. The clause giving shares to the descendants of such nephews and nieces as had died is indissolubly, connected with the clause, giving portions to the nephews and nieces themselves, so far as relates to the time when the selection of the legatees is to be made; for the final clause of that sentence is, that all of the children of each deceased person shall receive collectively “ the portion to which their parent would at such distribution be entitled under this provision.” There is, therefore, in the provisions of this will a clear, well-expressed and. consistent purpose of the testator directing the distribution of the residuary estate among such of his nephews and nieces, or of their descendants, as should be living at the time when there could be an actual division thereof. There seems besides to be a clear purpose, although of a negative character, to prevent such property from going to the personal representatives of his nephews and nieces, where the same might be devoted to the payment of past debts, and not to the support and maintenance of the objects . of his bounty. For these reasons we think the conclusion of the learned referee upon the principal question was correct.

We have not overlooked the cases upon which the learned ■ counsel for the defendants mainly rely,'nor the argument which has been so elaborately presented to the court in the briefs submitted. The case of McKinstry v. Sanders, 2 T. & C., 181; aff’d, 58 N. Y., 662, on the opinion of the court at general term, is stated by counsel to be so nearly like the case before us as to be a controlling authority. But in that case it will be found that while certain annuities were created out of the fund produced in part by the conversion of real estate, there was a provision that upon executing' a bond for their payment by a religious body to whom the fund was bequeathed, the legatee, the religious body, should immediately take the whole of the fund. This fact disclosed an intention on thé part of the testator that the religious corporation should have immediate title, followed by a full possession of the fund upon giving the bond to pay the annuities. But this is the very exception to the rule which we deem applicable to this appeal, and is well recognized in the authorities from which we have cited.

In the case before us, however, the distribution is actually and necessarily postponed until the annuities cease. By no possibility could the children of the testator’s brothers and sisters receive any part of the property until after the cessation of the life estates. Judge Miller, in McKinstry v. Sanders, supra, says: The payment of the legacies was postponed to enable the executor to dispose of the real estate, and convert the whole of the estate into money, thus making the bequest independent of the time named, and vesting the legacies at the time of the testator’s death. So, also, in Goebel v. Wolf, 113 N. Y., 405; 23 St. Rep., 176, there was an express provision, other than that relating to the division of the residuary estate among the children, in the form of a positive direction to invest the same for the benefit of the children. In that case the provision for the investment for the benefit of the children made a complete gift to them, so that the interest of each vested immediately upon the death of the testator. These, and the other cases cited, where it appears that the gift is immediate, but the payment or enjoyment thereof is postponed to a future day, do not, in our judgment, bear directly upon the will which we are called upon here to construe.

In respect to the appeal by the plaintiff, and by certain of the defendants, from, that part of the interlocutory judgment which adjudges that the defendants are not estopped by the former accountings from raising the question here discussed, it is, as it seems to us, partly well taken, and partly not. We are unable to find any proceedings upon the past accountings which would estop •one class of defendants as against the other to set up the claim now made. To that extent we think the conclusion of the referee was correct. , But as between such defendants and the plaintiff the same rule would not apply beyond the question of the distribution of the funds now remaining undisposed of. So far as the trustee has actually paid out moneys, he has acted with a lull knowledge of, and without objection coming from these defendants. Still, if he has proceeded upon an erroneous basis, and yet has funds sufficient in his hands to equalize the payments .among the distributees, we know of no reason why he should not be required so to distribute them, provided the court is wrong in its conclusions upon the main question. But he cannot, under these circumstances, be held personally liable for any loss. This -question, however, is probably not of any practical importance if the construction of the will as above given is correct.

It follows, therefore, that the interlocutory judgment should be •modified in respect to the provision therein touching the estoppel, :and as so modified, affirmed.

Interlocutory judgment modified as stated in the opinion, and. as so modified, affirmed, with costs of this appeal to .the several ■classes of parties who have filed briefs, payable out of the fund.

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


author: Macomber, J.

text:
    John Fahy et al., App’lts, v. James Fargo, Prest., etc., of the American Express Co., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    INegligence—Collecting agents.
    Plaintiffs, on the 15 th of November, delivered to defendant a draft for collection, with instructions to h Id for one day if not paid on presentation, and then if not pil'd to return it. Defendant sent it to another company, by which it was presented on the 18th and again on the 25th, but was not pa d, and it was returned on the 30th. The drawees during this time had property sufficient to pay said draft, but on the 29th made an assignment wiih preferences. Reid, that defendant was negligent in not returning the draft as directed, and'that from, the fact that the drawees had ample property before the assignment to pay the draft, "a presumption, arose that such claim would have been paid or could have been collected*, had defendant discharged its duty (Lewis, J., dissents.)
    Appeal from a judgment entered in Monroe county on the 7th day of August, 1890, on the report of a referee, awarding to-the plaintiff nominal damages only.

      Irving Paine, for app’ltsNathaniel Foote, for resp’t.
   Macomber, J.

This action is brought to recover damages for the negligence of the defendant in failing to return, promptly, as draft entrusted to it for collection of Seaver & Hall, debtors of the-plaintiffs, doing business at Byron, N. Y.

On the 15th day of November, 1886, the firm of Seaver &. Hall were indebted to the plaintiffs in the sum of $187.36, lor goods sold by the plaintiffs to that firm. On the 15th day of November in that year the plaintiffs delivered to the defendant, a draft in the usual form, requesting the defendant to present ther same to Seaver & Hall, and collect it, with instructions in writing that if the same was not paid on presentation to hold it for one day, and, if not.able to collect it on the expiration of that time, to return it to the plaintiffs: All of this the defendant undertook to do.

The defendant, however, having no office at Byron, did, on ther 16th day of November, 1886, employ the National Express Company to perform this service, and the draft which was handed to-the National 'Express Company was, by the latter, on the 18th day of November, 1886, presented to the debtors, who requested, time to examine the account of the plaintiffs. The agent of the-National Express Company retained the draft in his possession,, and again, on or about the 25th day of November, presented the same to a member of the firm of Seaver & Hall, who still neglected! to pay it, rendering as an excuse therefor that they had not had time to examine such account. The draft was then held until the 30th day of November, when the same was returned to the office of the National Express Company at Rochester, and by the latter returned to the plaintiffs on the 1st day of December, 1886. On this day, namely, the 1st day of December, 1886, on receiving the draft back, the plaintiffs were first notified that the draft had not been paid. When' the draft was delivered to the defendant for collection, and until the 29th day of November, 1886, the firm of Seaver & Hall were carrying on business at Byron, owned and had in their possession property of the value of several thousand dollars, and each of - the two members of the firm owned individual property, not exempt from levy and sale on execution, exceeding in value the amount of the draft. On the 29th day of November Seaver & Hall made a general assignment of their copartnership and individual property in trust for the benefit of creditors, with preferences therein to various creditors, but not any preference to the plaintiffs. In fact, for several days previous to the making of the,assignment, the firm had,.as subsequent events showed, been insolvent, being unable to pay its debts in full. An action had been begun against the firm in the supreme court sometime prior ito the making of the assignment by one of its creditors, and if no ■defense had been interposed judgment could have been taken ■therein three or four days after the date of the assignment. The referee found that for several days before making the assignment Seaver & Hall contemplated making the same, but for how many days prior thereto such intention was uppermost in their minds ■does not distinctly appear.

The referee further found as a matter of fact that the defendant -could have complied with the directions as to the presentment, demand and return of the draft, and have returned the same to 'the plaintiffs and notified them of the non-payment on the 20th ■day of November, 1886; and that in failing so to return the draft with such notification, the defendant was guilty of negligence. But he has also found as a matter of fact “that it is not reasonably probable that the plaintiffs could have collected or secured their said claim against said Seaver & Hall had said draft been returned to them on the 20th day of November, 1886;” consequently he decides, as a matter of law, that the plaintiffs are entitled to maintain their action, but can recover nominal damages only, namely, one dollar. From the judgment entered upon that report this appeal is taken.

The general question of fact, therefore, is whether it appeared that it was reasonably probable that with such means of prosecuting 'their rights as were open to the plaintiffs, they could have secured their claim against the debtors had the defendant performed its duty and returned the draft upon the 20th day of November. The learned referee has apparently placed his decision npon the authority of two cases. Lienau v. Dinsmore, 41 How. Pr., 97, and Failing v. Fargo. 12 W. Dig., 121. In both of these cases, as well as in the one at bar, no question of the duty to charge an endorser or other party to the draft is .involved. Those cases hold that the rule applicable was that, if it is reasonably probable that the draft would have been accepted and paid by the drawee, if the defendant’s agent had done its duty, the defendant is prima -facie liable for the whole amount of the draft, unless he is able to show that the whole amount of the draft has not been actually lost tq the drawer in consequence of the defendant’s negligence.

The referee, in the case before us, has found, as stated above, that the firm, as well as the individual members of it, had real estate and personal property of more than sufficient value to meet the claim made upon it by the plaintiffs. In this respect the facts are materially different from those disclosed in the two cases cited. Yet he finds also as a fact that it is not reasonably probable that ■had the draft been returned the same might have been collected.

In this last finding we are not able to concur with the learned referee under the proofs as they stand in the record. A presumption would arise, under the findings, that the plaintiffs bv availing themselves of the ordinary .modes of judicial prosecution of ■the claims might, and probably would, have secured their debt had they been apprised on the 20th day of November that their debtors refused to honor their draft. In what particular ■ mode they would have prosecuted their claim it is not incumbent upon, us to point out. It is quite clear, that an action in a court of a, justice of the peace might have been begun and prosecuted to-judgment between the time when the draft ought to have been returned and the time of .the assignment. But if, as intimated in the case, the debtors had a pre-conceived purpose of making a general assignment for the benefit of creditors with certain preferences-in case their creditors crowded them in the courts, there might have been placed in the hands of the plaintiffs the more summary process of attachment upon the ground of a fraudulent purpose-of making an assignment to escape payment of debts. But whether or not the facts would have justified the plaintiffs in. pursuing either remedy, it is sufficient to say, under the findings, that both the firm and individual members had ample property,, both real and personal, out of which to satisfy the plaintiffs’ claim. From that fact a presumption of law arose that such claim would, have been paid had the defendant discharged its duty and had not neglected the plaintiffs’ interests. It is not sufficient to show,, by a mere suggestion of evidence which wholly lacks conclusiveness in its details, that it was the purpose of the debtors at any time when pressed by creditors to make a general assignment so> as to escape the payment of any claim which might be prosecuted in the courts against them.

We are of the opinion, therefore, that upon the question of fact-the learned referee was in error, and that, consequently, the judgment should be reversed and a new trial granted.

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

Childs, J., concurs; Lewis, J., dissents.


author: Macomber, J.—The

text:
    David A. Lamming, Resp’t, v. Norman H. Galusha et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Pleading—Misjoinder of causes op action.
    The complaint in this action set forth a cause of action for nuisance-in obstructing a public highway by the erection of an embankment therein for defendants’ railroad, thereby cutting off access to plaintiff’s premises, and also stated in the body thereof, without separate numbering, allegations as to injuries sustained by plaintiff by reason of his horse becoming: frightened by one of defendants’ trains which was negligently operated, and the prayer for relief was for damages sustained by the unlawful use-of the highway “ in addition to the body and physical injuries.” Held, that there was a misjoinder of causes of action, and that the two causes of action did not arise out of the same transaction.
    2. Same—Demurrer.
    A failure of the plaintiff to state separately and number the causes of action does not preclude the defendant from interposing a demurrer on ther ground of misjoinder.
    Appeal by the defendants from an interlocutory judgment, entered in Monroe county May 26, 1891, overruling a demurrer to the plaintiff’s complaint, filed on the ground that two or more causes of action were improperly united in the complaint.

      C. C. Davy, for app’lts; Henry W. ConJclin, for resp’t
   Macomber, J.—The

demurrer is placed upon the ground that, it appeal’s upon the face of the complaint that causes of action have been improperly united, naming four particulars.

The plaintiff is the owner of certain lands in Irondequoit, lying along North avenue, which extends from the city of Rochester to-the Ridge road, and also of lands on the Ridge road near the intersection of that highway with North avenue, particularly described in the complaint. These premises are used for farming-purposes, raising vegetables and fruits for market in the city of Rochester, where they are carried by wagon, which makes nearly daily trips during several months, and goes two or three times a week during the remainder of the year. The plaintiff, with his-family, also goes to the city of Rochester for worship, being attendants upon a church there. The usual and most convenient and natural route from the plaintiff's dwelling, which is near the-Ridge road on a street known as Garden street, as well as from other parts of the plaintiff’s lands, to and from the city of Rochester, is along the Ridge road and North avenue to Bay street,, which is within the city limits, a distance of about two miles. Any other route is circuitous, and it is alleged is -inconvenient and involves traveling half a mile further, at additional delay,, labor and expense.

Thence follow allegations, showing with much circumstantiality that the defendants before and since the first day of July, 1887, to the present time have habitually interrupted access to his-houses, and interfered with the use of a sand and gravel bed on his premises by the unlawful construction and operation in these-public highways of a railroad operated by steam, and the easy marketing of his crops; that plaintiff’s lands extend to the centre of both 'North avenue and the Ridge road, and that the defendant, has wrongfully and unlawfully built and maintained high embankments in North avenue, obstructing the natural drainage of the road, and otherwise obstructed travel thereon and on the-Ridge road, rendering them during certain seasons of the year impassable to vehicles; that said embankments cause the drifting and accumulation of snow, so that the highway cannot, be traveled. Suffice it to say, in short, that the grievances of the public, as well as the plaintiff’s personal grievances, are set forth in much detail. The complaint also contains suitable allegations of special injuries peculiar to the plaintiff alone, other than those suffered by the public at large. .

The facts of this case are summed up by another clause in the complaint, but to the same legal effect. It is then alleged that these acts of the defendant constitute a public nuisance and are a special injury to the plaintiff, and that, inasmuch as he has no adequate remedy at law, he comes into a court of equity and asks for damages and an injunction to restrain further wrongful operation of ■ the railroad, under suitable allegations averring threats, and intention on the part of the" defendant to continue to maintain such nuisance.

Here is, clearly, a cause of action set forth alleging the existence of a public nuisance, and showing that the plaintiff has suffered special and peculiar damages other than the public at large. If these allegations are established by evidence, and not overcome ¿by affirmative defenses, the plaintiff would be entitled to some relief. Adams v. Popham, 76 N. Y., 410. The complaint, as above epitomised, is a unit and contains only one cause of action. But, in the body thereof, there are other allegations which, certainly, for the purposes above mentioned, have no place there. Without ;any connection with the statement of the facts above mentioned, but without being separately numbered, it is alleged as follows: •“That on or about the 4th day of August, 1888, plaintiff, in the ■ordinary prosecution of his said business, was riding along said' North avenue in his market or produce wagon, and was driving Tais own horse attached thereto and going toward the north; that •said horse was a quiet and well trained animal, accustomed to •steam railroads and cars, and that plaintiff was driving with due care; that plaintiff had reached a point about midway between Norton street and the Ridge road; that thereupon■ one of said locomotive engines and train, operated by steam, approached from "the south running at a high rate of speed and making alarming ■noises by the escape of steam and otherwise, and without abating said speed or noise ran past plaintiff; that the approach of said, "train greatly frightened said horse, and as said train passed said horse got beyond plaintiff’s control and turned quickly, overturning said wagon, and threw plaintiff violently out of said wagon and to the ground ; that said horse in his fright and struggle to •escape stepped upon plaintiff’s head, shoulder and the lower part of his body, wounding and bruising plaintiff; that plaintiff, as •the result of said injuries, was confined to his bed for two weeks ■and to his house for three weeks and was necessarily under medical care for many' weeks thereafter, and suffered great pain; that ■said plaintiff has never recovered from said injuries, but is still 'subject at times to excruciating pain in said portions of his body, and never since said injuries has he been free from pain oe■casioned thereby; that since said injuries plaintiff has never been able to read or engage in mental labor, except for a few moments .•at a time, without bringing on a dizziness and headache sufficient to compel the cessation from such reading and mental labor.” 'Thence follow allegations that theretofore plaintiff was an unusually robust and healthy man, capable of doing hard and continuous labor ; that such injury incapacitated him for such labor, and "the effects of the injuries to him are permanent and incurable.

In the general prayer for relief it is stated that the injuries which, as we have said, would give him a cause of action to re•strain the continuance of the nuisance, are “in addition to the body and physical injuries already described.”

Here, in the body of this complaint, as it- seems to us, is a ■cause of action for personal injuries inflicted, as is alleged, by the defendants through their negligence in the. management of -their locomotive while passing along North avenue, and without fault on the plaintiff’s part. " This has no material bearing upon the facts as presenting the cause of action stated for relief against the nuisance. These allegations might be, and often are, true of a. railroad whose right to operate its trains is unquestioned; but which is liable only for the negligent use thereof. It appears to-us that in this respect there has been a misjoinder of causes of action, namely, one for the' relief from a nuisance where the plaintiff had suffered special damages by reason of the continued unlawful use of the highways; and the other a cause of action which rests upon allegations only of negligence in the operation of a particular train at a given time, to the damage of the plaintiff, when he was without fault.

Subdivision 9 of § 484 of the Code of Civil Procedure is-pressed upon our attention, where it is provided that there may be united in the same complaint claims arising out of the same-transaction or transactions connected with the same subject of action. But this negligent act of running a train on a particular trip cannot be said to arise out of the same transaction which constitutes the general burden of the complaint, nor is it connected with the same subject of action. The one cause of action is founded upon the maintenance of a nuisance, and the other for negligently operating a train on a particular occasion. We conclude, therefore, that the demurrer was properly interposed, upon the ground that there were attempted to be joined in the complaint two causes of action, one for relief against a continuing nuisance, and the other for personal injuries received-through the negligence of the defendants, happening without fault of the plaintiff, and we are of the opinion that these causes of action cannot be united in the same complaint.

These two causes of action are not separated, or stated to be-independent of each other, and they are not separately numbered. But under the decisions of Wiles v. Suydam, 64 N. Y., 173, and Goldberg v. Utley, 60 id., 427, the failure of the plaintiff to state* them separately, and to number them, does not preclude the defendant from interposing his demurrer upon the ground named, and the latter is not left to his remedy of making a motion to-compel the plaintiff to separate the causes of action, and to separately number them.

For these reasons we think the interlocutory judgment appealed from should be reversed

Interlocutory judgment reversed, with costs, and the demurrer sustained, with costs, but with leave to the plaintiff to amend on-payment of costs.

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


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    Charles F. Henricus et al., App’lts, v. Charles Englert, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Principal and Surety—Alterations.
    A surety for the faithful performance of work by a sub-contractor is not discharged from liability by changes made in minor details of the work, assented to by the contractor without binding himself to conform to the change, and which do not materially alter the contract.

      S. Same—Discharge of principal.
    The surety must be deemed exonerated by the discharge of his principal made voluntarily by the obligee, whether that discharge be in words or by such necessary implication as the payment to him in full of the con-' tract, with full knowledge of his omissions, and without any agreement.
    Appeal from, a judgment entered in Monroe county, May 20, 1891, on the report of a referee.

      Turk & Bdrnum,, for app’lts; W. E. Werner, for resp’t.
   Macomber, J.

The plaintiffs were house builders, and carried ■on their business in their own names, as agents for their wives, respectively. ' As such agents they entered into a contract with "the village of Brockport on the 15th day of September, 1884, for "the building of a town hall and fire department building for that village, for which they were to receive the sum of $9,700. They, by contract with one Vogel, sublet the carpenter work for such building for the sum of $4,400. A bond for the faithful periormance of Vogel’s contract, upon which this defendant was ¡surety, was conditioned that Vogel should perform all of the obligations entered into with the plaintiffs for the erection of this building “ agreeable to the plans, and in perfect keeping with the revised carpenter specifications prepared for the same by H. B. ‘Grleason, architect.” This action is brought to recover damages of this surety upon the. ground that Vogel did not perform in •all respects the agreement which he had entered into with the plaintiffs.

The learned referee has found that the specifications made by the architect were departed from in some particulars by the contení of the plaintiffs, of Vogel and of the village of Brockport, and he has given in detail the particulars thereof. It is not ■deemed needful to an understanding of this case to state such variations in detail. It suffices to say that some of them made the ■expenditure of Vogel larger in amount than the original specifi■cations, and some of them reduced such expenditures. The total ¡sum which the referee has found that the village of Brockport has suffered by all of the variations is $550. It is not specifically found that this sum includes the variations made by the plaintiffs themselves in the mason work, but such must be deemed to be the legal effect of the agreement of the plaintiffs and the village of Brockport, hereinafter adverted to. This sum was agreed "upon by the village authorities and the plaintiffs.

That the plaintiffs themselves consented to such alterations ■can admit of no reasonable doubt from the evidence. Indeed, some of the changes from the architect’s specifications relating to "the mason work were made by them.

The learned referee has found as a fact that the changes and alterations from the original plans and specifications were material alterations in the contract for the performance of which the bond in question was given, and that such alterations were made without the consent of the defendant; and he finds as a conclusion of law, that, for this reason, the defendant is discharged from, liability.

It is extremely doubtful whether the facts disclosed in this case warrant the legal conclusion arrived at by the referee. The contract of this surety must be construed like all other contracts, so ■as to give effect to the intention of the parties. That intention must be gathered from and in some respects controlled by the mature of the contract entered into, and it must be interpreted in the light of the circumstances attending the execution of the instrument. When the meaning of the contract is thus ascertained full legal effect must be given to it, though the responsibility of the surety must not be extended or enlarged by implication or ■construction; but it is to be deemed strictissimi juris. People v. Backus, 117 N.Y., 201; 27 St. Rep., 173.

In examining the testimony, it- is found that the original contract between the plaintiffs and the village of Brockport has never been changed, either in any manner detrimental to the surety or ■otherwise. It is true that variations were made in some of the minor details of the work as it progressed. But that is by no means a change of a contract. The plaintiffs never agreed to alter their written agreement with the village of Brockport; no binding ■obligation rested upon them to conform to the changes, whether -advantageous to Vogel or otherwise. That the parties actually did make these slight changes is of no importance, as it would .seem, provided the agreement to which the defendant was a surety had not itself been actually changed. The nature of the contract shows that slight, immaterial and unimportant changes, not going to the structural plan of the building, might be made without in any respect impairing the obligation of the original contract. So long as the negotiations between the principal and the creditor do not reach the point of a binding agreement, the change made is merely a change in the details of the work performed, and not a •change of the contract itself. It is the alteration of the obligation •of the principal which discharges the surety, and not his voluntary act in the ease of building contracts by which slight modifications ■are made in the details of the work. For these reasons we think the facts of this case take it out of the • ordinary rule that a guarantor is exonerated if, by any act of the creditor without his consent, the original obligation of the principal is altered in ■any respect, or the remedies or rights of the o creditors against "the principal in respect thereto are in any way impaired or suspended.

The alteration contemplated by this rule is the material alteration of the contract, as is well illustrated by the case of Woodworth v. Bank of America, 19 Johns., 331, which has been so frequently followed by our courts. But there is, however, a ground upon which the judgment appealed from may be sustained.

By the fourteenth finding of the learned referee, it is decided as a question of fact that the principal, Vogel, before this action was brought, had received from the plaintiffs full payment of his contract for the carpenter work upon this building. We are not left to any speculation or examination of the case to ascertain whether this finding is supported by the evidence, for it was made in pursuance of the request of the counsel for the plaintiffs. This circumstance, coupled with the further fact that whatever changes-were made in the detads of the construction of the building were made with the knowledge and consent of the plaintiffs (though, the learned counsel for the plaintiffs have made a vigorous argument to show the contrary), precludes a recovery by the principals for any alleged violation of the condition of this bond. The plaintiffs had received from the trustees of the village of Brock-port a bill for damages, amounting to a sum considerably greater than $550. Thereupon an agreement was entered into between the parties to the original contract that the sum of $550 should be allowed. The measure of damages, therefore, which the plaintiffs-claim to have sustained by reason of a breach of the bond has been determined not by any judicial inquiry, or by proof other than as above mentioned. But assuming that there is evidence of an actual departure by Yogel in the carpenter work in the sum of $550, the plaintiffs, with full knowledge of such violation of the contract, have voluntarily paid to the defendant’s principal the full sum contracted for. Certainly the obligation of the defendant cannot surpass that of his principal. If, therefore, these plaintiffs cannot maintain an action against Yogel for a failure to perform his contract," as they certainly cannot under these findings, because they have voluntarily paid him the full amount of the contract, with.a full knowledge of all the facts, the defendant,.who is a mere surety and not an original contractor, cannot be held beyond the limits of the liability of his principal. The guarantor must be deemed to be exonerated by the discharge of his principal, made voluntarily by the creditor, whether that discharge be in words, or by such necessary implication as the payment to him in full of the contract, with knowledge of his omissions, and without any agreement.

For these reasons, we think the judgment appealed from should be affirmed.

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


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    Charles F. Henricus et al., v. Charles Englert, Resp’t. Mary M. Henricus et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Motions and orders—Objections.
    An objection to the competency of the proofs should he made on the: hearing of the motion, and cannot he raised for the first time on appeal from the order. ,
    2. Costs—Persons beneficially interested—Code Civ. Pro., § 3247.
    Proof that the action was brought by certain persons through the plaintiffs as their agents, and that such persons are the real parlies in interest, is sufficient to bring the case within § 3247- of the Code. The term “ real parties in interest” is equivalent to the term “person beneficially interested.”
    3. Same.
    Application to compel payment of costs by the person beneficially interested should be made by motion.

      Appeal from an order of Monroe special term requiring the appellants, not parties to the action, to pay the costs awarded to the defendant in his judgment against the plaintiffs herein.

      ]). Q. Barnum, for app’lts; T'7m. M Werner, for resp’t.
   Dwight, P. J.

The motion was made, as the notice specified, upon an affidavit of the defendant’s attorney, the summons and •complaint in a previous action by the appellants herein against the defendant in this action, and upon the judgment-roll, testimony and opinion of °the referee in this action The order recites that .all these papers were read on the hearing of the motion, and, so far as the record shows, no objection was made to any of them as incompetent or inadmissible against the appellants. The latter .read no papers in opposition to the motion, but apparently stood upon the insufficiency of the proofs to charge them with liability for the costs in question.

It is, obviously, too late now to object to the competency of the proofs upon which the order was granted. That objection should have been made on the hearing of the motion, either preliminarily ■or when the objectionable proof was offered to be read. Such objection would have brought the question to the attention of the •court below, and a ruling thereupon would have been subject to review on this appeal. The objection not having been made below is not here.

The proofs as read were quite sufficient to establish the fact •that the action was brought by the appellants through the plaintiffs as their agents, which, was the manner in which all their business was done, and that the appellants were in fact the real parties in interest. This brings the case directly within the provisions of § ■3247 of the Code of Civil Procedure, which so far as it is applicable to a case like the present, reads as follows : “ Where an action is brought, in the name of another, by a * * * person who is beneficially interested therein * * * the * * * person ■so interested is liable for costs in the like cases and to the same •extent as if he was the plaintiff; and, when costs are awarded against the plaintiff the court may, by order, direct the person so liable to pay them.” The objection that the notice of motion •did not specify the grounds presented by this section of the Code is not tenable. One of the grounds specified is that the appellants are the real parties in interest, and that the plaintiffs brought the action as their agents; the term “real parties in interest” is ■quite equivalent to the term “person beneficially interested.” The practice of the defendant in pursuing his remedy, under § 3247, by motion, was correct. The section expressly provides that the remedy shall be given by order, and such a direction as .is made by the order could have no place in the judgment

The order appealed from should be affirmed.

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

Macomber and Lewis, JJ., concur.


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    William M. Smith, Resp’t, v. Delia M. Paul, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

      ■ 1. Mortgage—Priority—Deed.
    Defendant’s husband, three years prior to the execution of the mortgage to plaintiff, executed a deed of the premises and handed the same toune R., -an employee of his, who executed mortgages under which defendant claims a prior lien on the premises. The deed was kept in a desk where the grantor kept his books and was not recorded until three years, alter plaintiff’s mortgage was given. There was no consideration for the-deed and during all the time until it was recorded it was in the power of the grantor to destroy or revoke it. Held, that these facts were sufficient, to authorize a finding that defendant had no lien prior to that of plaintiff.
    2. Same—Inconsistent findings.
    The referee found that there was no delivery of the deed; but in answer to a request of defendant found that the deed was executed, acknowledged and delivered to R. Held, that the findings -were not inconsistent, but read together show an intention to find -a delivery in form, only.
    Appeal by the defendant from a judgment entered in Allegany county on the report of a referee, in an action for the foreclosure of a mortgage.

      R R. & Q. W Harding, for app’lt; Rrank S. Smith, for resp’t.
   Dwight, P. J.

No question whatever is made of the due execution, delivery, sufficient consideration, good faith or validity-in all respects of the mortgage in suit, nor that the indebtedness-intended to be secured thereby was unpaid and due at the time of the commencement of the action.

The defendant Delia M. Paul, who alone appeared in the action, was the wife of Joseph M. Paul, the mortgagor, and as such joined with him in the execution of the mortgage. Her answer asserts an interest in and lien upon the mortgaged premises superior to-the lien of the mortgage in suit; and this, her sole defense, depends upon questions of fact which have been determined by the referee adversely thereto. Counsel- for the respondent is in error in supposing that the case on appeal does not contain the statement that it embraces all the evidence given on the trial; .that „ statement is contained in the opening paragraph of the case proper, and is of course covered, by the certificate of settlement which is appended to the case. The findings of fact were therefore open to review on this appeal, but such review has satisfied us that they are supported by entirely satisfactory evidence, which could not properly have led to any other conclusion.

The answer sets up. and the evidence tends to prove, a series of transactions relating to the mortgaged premises which on their face were undoubtedly sufficient to vest in the defendant an interest in and lien upon those premises, though whether superior to-the lien of the mortgage in suit might still be a question. But,, as plainly appears on the face of the answer, the validity^ and effect of those transactions, as bearing upon the issues in. this action, depend wholly upon the truth of the first averment of the-answer, viz.: that of title to the premises in question in one James Ratchford on the 10th day of May, 1883, and the 19th day of May, 1886, on which dates he assumed to execute the two mortgages under which, alone, the defendant claims the interest and lien asserted by her; and that allegation is completely negatived by the findings pf the referee.

The defendant, to establish the averment in question, put in evidence a deed executed by Joseph M. Paul, her husband and the morto-agor in the plaintiff’s mortgage, which purported to convey the°saine premises to Ratchford, dated and acknowledged May 10,1883, but not recorded until April 12, 1889. The former date was three years before, and the latter three years later, than the mortgage to the plaintiff. In respect to this deed the finding •of the referee is as follows: “ That no consideration passed from said Ratchford, the grantee named in said conveyance, or from .any other person to the said Joseph M. Paul, or to any other person, for the said deed of conveyance, and that the deed was wholly without any consideration. That the said deed was never intended by the parties thereto to pass the ownership of the lands therein described to said Ratchford, the grantee therein named, and that the said Ratchford did not receive the said deed for the purpose of acquiring title to the land therein described; that the said deed of conveyance was never delivered by the said Joseph M. Paul to the said James Ratchford. At the time this deed was ■executed, Ratchford, the grantee, was a miller in the employment ■of said Paul in a mill in the town of Hume, owned wholly or in part by Paul. Paul handed the deed to Ratchford, and Ratchford put it in a pigeon hole in a desk owned by Paul in said mill, ■and in which he kept his books. Ratchford kept his papers in this dc sic. This deed remained in this desk until Paul took it ■away to get it recorded in April, 1889. Ratchford was in Paul’s employ in this mill until 1886. Had worked for Paul for five years next before that time. That said deed was so delivered and recorded by the said Joseph M. Paul with a fraudulent intent. That the said Ratchford, the said grantee, never entered into or in any manner had possession of the lands described in said deed of conveyance, or received the rents and profits of the said land, or' of any part thereof. That the said Paul retained dominion over and control of the said deed of ■conveyance from the time of the aforesaid handing of the same by him to said Ratchford until the same was recorded, and ■during all of. such time it was within the power of said Joseph M. Paul to destroy or revoke said deed,’’ This finding is supported in all its details by evidence which is substantially undisputed. It is objected that the finding, included in the above, “that the said deed of conveyance was never delivered by the ■said Joseph M. Raul to the said James Ratchford,” is inconsistent with a special finding made in response to a request on the part of the defendant, wherein, in .connection with an abstract of the deed in question, the referee states that the deed was executed, acknowledged and delivered by Paul to Ratchford. But it is evident that read together the two findings are not inconsistent or contradictory, but that the intention is to find a delivery as matter of form merely, without the intents or effect of a delivery to pass the title to the property described in the deed.

The referee also found the facts in regard to the two mortgages, above mentioned executed by Ratchford on or after the date of the deed, one of which was made to the defendant, and under the* other of which she sought to acquire the rights of the mortgagee by assignment; and he found, in effect, that the defendant was not entitled, as against the plaintiff, to any of the rights of a bona fide purchaser under or by virtue of either of those mortgages. The latter conclusion was supported not only by the fact that sher actually joined in the mortgage to the plaintiff, but that, as she herself testified, in all the transactions connected with the subject, matter, to which she was nominally a party, she was, in fact, represented by her husband, the mortgagor of the plaintiff and the* fraudulent grantor in the deed to Ratchford.

It is plain that those findings were sufficient foundation for the* conclusions of law of the referee, not only that the deed to Ratchford conveyed no title to him and was void and of no effect as* against the plaintiff, but also that the mortgage from Ratchford to* the defendant, and the assignment to her of the rights of the mortgagee under the other mortgage made by Ratchford, were* equally void and of no effect as against the plaintiff. And all these findings necessitated the final conclusion, “that the defendant, Delia M. Paul, has no interest in or lien upon said mortgaged premises superior or prior to the lien of the mortgage described in the complaint.”

The judgment was therefore right, and must be affirmed.

Judgment appealed from affirmed, with "costs.

Macomber and Lewis, JJ., concur.


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    Persons S. Barnard, App’lt, v. Norman B. Brown et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Ceeditob’s action—Multifabiousness—Waives of objection.
    A complaint in a creditor’s action which sets up distinct transfers by the judgment debtor to as many several defendants, against whom no conspiracy is alleged, and demands an accounting and judgment against each, is objectionable as multifarious; but such objection is waived if not taken by demurrer or answer, and the action is maintainable if either of the causes of action is made out against either of the defendants.
    2. Same—Husband and wife.
    In this action it appeared that the judgment debtor’s estate decreased, that of his wife increased, and it was not clearly shown from whence she* received such additional amounts. Held, that the action was maintained, against the wife.
    Appeal from a judgment rendered on the findings and decision of the court at special term (Chautauqua, J une, 1888).

      W Woodbury, for app’lt; J. 0. Record and B. W Hoolcer, for resp’ts.
   Dwight, P. J.

This was a creditor’s bill to reach property, real and personal, or its avails, alleged to have been transferred by the judgment debtor, Norman B. Brown, in fraud of creditors and especially of this plaintiff. The bill is, curiously, framed to include many distinct and separate transfers of the character mentioned by the judgment debtor to as many several defendants, ■each of whom is alleged to be, in regard to such transfers, respectively in complicity with the fraud of the transferror. No conspiracy is alleged between all or any of the persons so joined as ■defendants, except in a single count of the complaint, which relates to a single transaction entirely independent of the great number of separate transfers of property charged to have been made in fraud of creditors.

We seem, therefore, to have in this complaint several distinct ■ ■causes of action against several defendants, with a demand for and accounting by and a judgment against each. How it would be found practicable to frame and enforce a decree as multifarious as the bill, it is difficult to see; but the objection that several' causes of action have been improperly united in the complaint was not taken either by demurrer or answer, and was thereby waived. Code of Civ. Pro., § 499. If, therefore, either of the ■causes of action so united was made out against either of the defendants who is charged with having taken a transfer of property •of the judgment debtor in fraud of creditors, the action was maintained, and it was error to dismiss the complaint as to such defendant. A very careful review of the voluminous and somewhat confused testimony presented by this record has lead us to the ■conclusion, notwithstanding the findings of the court below, that the action was thus maintained against the defendant, Mary A. Brown, the wife of the defendant, Norman B. Brown, the judgment debtor.

_ We think the learned judge at special term failed to attach due significance to the evidence bearing upon the character of the transactions between the two defendants named; that the depletion of the husband’s estate and the augmentation of that of the wife was not well accounted for upon any other theory than that of voluntary transfers of property from the former to the latter, and that such transfers had the effect, and were with the presumed intent to hinder, delay and defraud the creditors of the husband. As to other defendants against whom similar acts and =a like intent were charged, there is by no means the same force of evidence, as there were not the same relations with the judgment debtor; and we do not regard the case as, on the whole, justifying our interference with the negative finding of the trial court as to any of them.

Our conclusion, therefore, is that as to the defendants Norman B. Brown and Mary A. Brown the judgment should be reversed .and a new trial granted, with costs to abide the final award of costs, and that as to all other defendants represented on this appeal the judgment should be affirmed, without costs to either party.

Macomber and Lewis, JJ., concur.