text:
    Harvey A. Moyer, App’lt, v. George W. McIntyre, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Contract—Conditional sale—Laws 1884, chap. 315, § 1—Rights of purchaser in good faith.
    This plaintiff sold a wagon to a party at a price agreed upon, part of which purchase-price was paid at the time of the sale, the payment of the remainder being secured by the note of the vendee, by the terms of which the title of the wagon was to remain in this plaintiff until payment of the note, and that he should have power to take possession whenever he might feel insecure. Held, that the note not having been filed as required by Laws 1884, chapter 315, section 1, the conditions therein contained were void as against a purchaser in good faith from the vendor.
    2. Same—Rights of purchaser m good faith not divested by tender.

      Held, that tender by the original owner to the late purchaser of such sum as he might have paid for the wagon did not divest the latter of the title acquired by him.

      A. L. Johnson, for appl’t; M. E. Driscoll, for resp’t.
   Boardman, J.

This action to recover the value of a wagon alleged to have been converted by defendant was brought in a justice’s court, where plaintiff recovered judgment. Upon appeal to the county court the judgment was reversed, and from such judgment of reversal the plaintiff appeals to this court.

On the 5th of August, 1885, plaintiff sold the wagon to one R. Smith, at the price of $72.50, upon which sale Smith paid $5 and gave nis note for $67.50 to plaintiff for balance. By the terms of the note, the title to the wagon was to remain in plaintiff until the note was paid, and he was to have the power to take possession of the • wagon whenever he felt insecure, etc. Smith took possession of the wagon, an in about eight weeks thereafter sold the wagon to defendant for $10 cash, and $55 was applied to an old debt owing by Smith to defendant. Defendant had no knowledge .of plaintiff’s claim upon the wagon, and so far as the case shows, the defendant acted in good faith. When plaintiff learned of the sale by Smith to defendant he tendered to defendant $10 and demanded the wagon. The defendant refused the $10 and did not give up the wagon. Whereupon this action was brought for the conversion. It stands conceded that defendant was a purchaser in good faith to the extent of the $10 paid by him to Smith. No contract of sale with the condition and reservation therein was filed, as required by section 1 of chapter 315 of Laws of 1884.

Under this law the conditions and reservations contained in Smith’s note and qualifying his title to the wagon are absolutely void and against the defendant who purchased in good faith, and as to him the sale shall be absolute. The defendant McIntyre has bought this wagon without notice of any equity in plaintiff, and has paid $10 in cash and allowed $55 on an old debt due from Smith, who had possession of the wagon and the apparent right to sell it. Prior to the act of 1884 the defendant would have been deemed a purchaser in good faith for a valuable consideration, and he would have acquired a valid title. Weaver v. Barden, 49 N. Y., 286; Caldwell v. Bartlett, 3 Duer, 341; Smith v. Lynes, 1 Seld., 41. Indeed, the learned counsel for the appellant concedes that the plaintiff would be estopped from enforcing his claim if the defendant were a purchaser in good faith for value, and insists he was not such a purchaser as to the $55 applied by defendant on old debt due from Smith. He also claimed that an offer to return the' $10 to defendant makes his refusal to give up the wagon on demand a conversion for which this action will lie. We do not think such position can be sustained. Under the evidence the defendant was clearly a purchaser in good faith, and we think as such he took title to the property in spite of plaintiff’s equity. That title was absolute so far as plaintiff’s interest is concerned. In certain cases, as in Weaver v. Barden (supra), equity might be invoked in aid of a party whose property had been taken from him without his fault, as against a person who had acquired it for a small portion of its value, but this action was brought in a justice’s court, not to enforce an .equity, but in the claim of a legal right. No case is cited where, under such a state of facts, a tender has been held to divest a purchaser of the title he has acquired under the law and the facts. If the purchaser has acquired a title by his contract and payments, it is absolute. If he has acquired no title, a tender was unnecessary before action brought.

If any doubts exist on these questions prior to the law of 1884, we think that law has settled them by making the defendant’s title absolute under the present facts. The plaintiff is a mortgagee of the wagon, his mortgage not being filed. The defendant is a purchaser in good faith, without notice and for value of the mortgagor. The statute says such mortgage shall be absolutely void as against subsequent purchasers in good faith; as to them, the sale shall be deemed absolute. Language cannot be more clear and comprehensive. We must hold that the law means what it says.

In Taylor v. Mayor, etc. (67 N. Y., 87), the construction was given to the words, “as against purchasers on mortgages in good faith, ” used in section 282 of the old Code in providing for securing a judgment pending appeal so as to discharge the lien. It was held that a mortgagee who took his mortgage fairly and honestly in payment of an old debt and for full value was protected. It is not necessary to hold that such rule applies to the case under consideration because an actual present consideration was parted with by this defendant.

The judgment of the county court reversing the judgment of the justice should be affirmed, with costs.

Hardin, P. J., and Follett, J., concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Frederick E. Welton, App’lt, v. William E. Holmes, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Replevin—What detention not sufficient to sustain action of.
    This plaintiff leased of the defendant’s wife a farm and certain stock and chattels, at an annual rent agreed upon. By the terms of the lease, “all stock raised shall belong to the party of the first part, lessor, until this contract is fully paid and satisfied.” Subsequently, and during the term of the lease, the plaintiff assigned his interest therein. Assuming that the assignment was with the consent of the lessor, it was Held, that the possession of the cattle exercised by the defendant in driving them from the premises leased to another farm of the lessor, under the right of liis wife, by virtue of a security clause in the lease, was not a sufficient detention to sustain an action of replevin against him by this plaintiff.

      2. Lease—Terms of, performance—Title to stock.

      Held, that until the performance of his lease by the plaintiff, or until he was excused from performance thereof, the title to the stock was in the lessor.

      William Youmans, for app’lt; Wm. F. White, for resp’t.
   Follett, J.

Appeal from a judgment entered upon a non-suit February 7, 1885. The plaintiff leased of Francis D. Holmes, defendant’s wife, a farm, sixteen cows and other chattels, for five years from April 1, 1880, for $400 per year, payable each oil first day of December; seventy-five dollars of the annual rent, payable in improvements, to be agreed upon between the parties. By the terms of the lease, “All stock raised shall belong to the party of the first part, lessor, until this contract is fully paid and satisfied.”

February 27, 1882, the plaintiff assigned his interest in the lease to Alfred J. Shaver, and, for the purposes of this appeal, it must be assumed that the assignment was with the consent of the lessor; though there is no evidence that the lessor knew the terms of the assignment, or that by the agreement between Shaver and plaintiff, that plaintiff wras to. remove the cattle in question. The plaintiff gave Shaver possession April 1, 1882. The cattle described in the complaint were reared on the place, and were left with Shaver temporarily by plaintiff until he could take them away, which he testified he intended to do.

About April 20, 1882, the cattle were taken, under the security clause in the lease, and driven to another farm of the lessor, where they have since remained.

In May, 1882, this action, replevin, was begun. The evidence shows that defendant claimed and too£ the cattle under the lease in the right of his wife, the lessor, and had no possession of them except while driving them from one farm to another, which is insufficient evidence of detention to maintain replevin against the defendant. Hunt v. Kane, 40 Barb., 638; McDougall v. Travis, 24 Hun, 590; Wells Rep., § 144.

The undisputed evidence shows that the parties to this lease had not settled for two years of the plaintiff’s occupancy, and the contract had not been fully paid and satisfied. The plaintiff testified that he had an unsettled claim for damages. The defendant testified that plaintiff failed to pay the taxes assessed in 1881, thirteen dollars, which he was bound to pay by the lease, and that defendant, acting for his wife, paid them.

Until the plaintiff had performed his lease, or been excused from its performance, the title to the cattle was in the lessor, and the plaintiff had no right to deliver them to another for the purpose of subsequently removing them from the farm. We do not think, under the evidence, that there was a question of fact for the jury, and the non-suit was rightly granted.

The judgment is affirmed, with costs.

Hardin, P. J., and Boardman, J., concur.


text:
    Abel C. Benedict and Lizzie P. Benedict, App’lts, v. The Seventh Ward Railway Company of Syracuse, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    Injunction, when it will not be granted or continued.
    When a plaintiff is not entitled to an injunction on the pleadings, as a matter of law, and all the allegations in the complaint are positively denied in the answer, the general rule is, that an injunction pending the litigation will not be granted, or if granted, will not be continued.
    Appeal from an order of the Onondaga special term vacating an injunction.

      M. M. Waters, for app’lts; M. A. Knapp, for resp’t.
   Follett, J.

The complaint is verified by Abel C. Benedict (one of the plaintiffs), and the allegations of fact therein are supported by two affidavits verified by him. The material allegations in the complaint are positively denied in the answer, which is verified by Edward F. Rice (defendant’s president), and these denials and the affirmative allegations of defendant’s rights to construct and operate the street railroad, are supported by an affidavit verified by said Rice. Thus the issue of fact stood before the special term, which decided it in favor of the defendant.

When a plaintiff is not entitled to an injunction on the pleadings as a matter of law, and all the allegations in the complaint are positively denied in the answer, the general rule is, that an injunction pending the litigation will not be granted, or if granted, will not be continued. Knox v. McDonald, 25 Hun, 268; Decker v. Decker, 52 How., 218.

There was no necessity for sustaining the injunction upon the ground that the construction and operation of the road would inflict irreparable injuries upon the plaintiff’s property or rights, or because the injuries complained of could not be fully compensated by damages, in case the plaintiffs maintained this action.

As the issue is yet to be tried, we abstain from commenting upon the rights of the parties as disclosed by the papers before us.

The order is affirmed, with $10 costs and printing disbursements.

Hardin, P. J., and Boardman, J., concur.


author: Hardin, P. J.

text:
    John Wolff, App’lt, v. The Oswego and Onondaga Insurance Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Insurance (Fire)—Policy oe—Renewal oe policy—Representations regarded as warranty.
    In a policy of insurance the insured made representations as to the naturc of the occupancy of the insured premises. It was a’.so stipulated in the policy among other things that if the premises should be so used or occupied as to increase the risk without notice to and consent of the insurer in writing, the policy should be void. It was further provided that
    - the insurance might be continued for such further time as might be agreed upon on performance of certain conditions and that unless otherwise specified in writing it should be considered as continued under the original representations. Held, that the insured by his representations as to the nature of the occupancy of the premises at the time of issuing the policy and by accepting the renewal in accordance with the terms of the policy in effect warranted that the premises were so occupied at the time the policy issued and that the occupation remained the same at the time of renewal.
    2. Same—Breach op warranty—Renewal op policy made void thereby.

      Held, that the omission of the insured to inform the insurer of a change of occupation increasing the risk made void a renewal of the policy thereafter obtained.
    Appeal from a judgment entered in Oneida county, upon findings of fact made by the circuit judge, after a trial without a jury, dismissing the complaint, with cost's.
    The action is brought upon a policy of fire insurance for $2,500, issued by the defendant to the plaintiff upon his building in Rome, September 1, 1874, for one year, and the renewal thereof given, August 30, 1875. The property covered by the insurance was totally destroyed by fire, September 25, 1875.
    The defence is a breach of warranty of the policy predicated upon an averment, to-wit: That after issue of the policy, and before renewal, there was a change of occupancy, increasing the hazard, of which defendant claims it had no notice. The trial proceeded mostly upon the printed evidence found in cases used in two former appeals, and also upon the oral testimony of the plaintiff in his own behalf, and the oral testimony of one Putnam, one of the agents of the defendant.
    In the original policy the property insured was described as follows, viz.: “ His brick and frame buildings and additions, occupied as saloon, dwelling, tailor shop and hall, situate south side of Harrison street, Rome, N. Y.”
    It was also stipulated in the policy that if the “premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied, and so remain for more than thirty days, without notice to and consent of this company in writing, or the risk be increased by the erection or occupation of neighboring buildings, or by any means whatever within the control of the assured, without consent of this company endorsed hereon, * * * and in every such case this policy shall be void.” «.
    In the policy was the further provision, viz.: “This insurance (the risk not being changed) may be continued for such further time as shall be agreed on, provided the premium therefor is paid and endorsed on this policy, or a receipt given for the same, and it shall be considered as continued under the original representations, and for_ the original amounts and divisions, unless otherwise specified in writing; but in case there shall have been any change in. the risk, either within itself, or by neighboring buildings, not made known to the company by the assured, at the time of renewal, this policy and renewal shall be void.”
    A renewal receipt was delivered by the agent of the defendant on August 30, 1875, referring to the policy, and containing the following language, viz.: “Which is-hereby continued in force for one year, to wit: From the 1st day day of September, 1875, until the 1st day of September, 1876, at noon.”
    The trial judge has found as facts, viz.: That, on the 9th of February, 1875, the plaintiff leased, to the city of Rome, the principal room on the first or ground floor of said building, for the term of one month, as a lodging room for the use of tramps and vagrants, and the said lessee used said. room for that purpose from the date last aforesaid, until about the 5th of May, 1875, when a new lease of said room was given by the plaintiff to said city for the term of one year thereafter, to be used by said city as a station-house, in which to lodge tramps and vagrants, and said lessee continued to use said room for said purpose,, until said building was destroyed by fire, as aforesaid; that said room was not used as a tailor shop after the city of Rome commenced to úse the same for the purpose aforesaid; that said use by said city of said room increased the risk within the true - intent and meaning of said policy, and as risks are usually rated by insurers.” Also found, “That shortly after, the city of Rome began to use said room in the manner and for the purpose aforesaid, the plaintiff notified one Kendrick S. Putnam, a member of said firm of Smith, Pond & Co., who were the general agents of the defendant at Rome, at the office of said agents, that he had rented part* of said building to said city as a station house, in which to lodge tramps and vagrants, but at the same time said to said Putnam that the time would be out on the first of the next month, and that the city could not have it any longer; that the plaintiff did not give to the defendant, or its agents, any other, further or different notice of a change in the occupancy of said building or in the risk covered by said policy, either at the time last mentioned or at any other time; that no endorsement of the notice in fact given was made upon said policy, or entry thereof made upon the books of said agents; that said Putnam made no objection to such letting as he was notified of, nor did he inform the defendant of the same.”
    Also found, viz.: “ That the said change in the risk was not made known to the company at the time of such renewal, nor did said defendant or. its agents know, at the time of such renewal, that any change in the occupancy or risk existed.”
    As conclusions of law the trial judge found, viz.: “That there was no waiver by the defendant of the condition in the policy that notice of a change in the risk, if any should occur, should be given at the time of renewal. Second, that on account of the failure to make known to the defendant at the time of the renewal, of said change in the risk, the policy and renewal became void.

      J. 8. Baker, for app’lt; Avery & Merry, for resp’t.
   Hardin, P. J.

Plaintiff by allowing tobe inserted in the policy the words “ on his brick and frame building and additions occupied as a Saloon, dwelling house, tailor shop and hall,” warranted the building was so occupied at the time of the issuing of the policy, and by accepting the renewal in accordance with the terms of the policy, in effect warranted that the property remained so occupied at the time of renewal. .

When the property became occupied, with the assent of the plaintiff, as a station for vagrants and tramps, without the assent of the defendant, there was a breach of the warranty.

It'may be assumed, for the purposes of this action, that the breach was waived by the defendant by the notice given to the agent of the defendant that part of the building had been rented to the city as a station house in which to lodge tramps and vagrants.

However, as the notice found by the trial judge is accompanied by the finding that the plaintiff assured the defendant’s agent, viz: “That the time would be out on the first of next month, and that the city could not have it any longer,” that notice may not be deemed an assent on the part of the defendant to a continuation of the occupation as a station for vagrants and tramps for a greater length of time than specified in the notice. The fact that the property was occupied as such station on the 30th of August, 1875, without the consent of the defendant, or without any notice thereof, and that that fact was not made known to the defendant at the time of the delivery of the renewal receipt compels the conclusion that the policy was broken and the renewal thereof broken according to the exact terms of the stipulations between the parties. Wall v. East River Ins. Co., 3 Selden, 370; Rohrbach v. Germania Ins. Co., 62 N. Y., 47; Alexander v. Germania Ins. Co., 66 id., 464.

Plaintiff by the terms of the policy at the time of application for a renewal of the same was bound to give notice of any change in the occupancy of the property which had occurred or which increased the risk over the occupancy specified in the policy.

The language of the policy was specific on that point. It was, viz: “But in case there shall have been any change in the risk, either within itself or by neighboring buildings, not made known to the company by the assured at the time of renewal, this policy and renewal shall be void.”

Under that language it was the duty of the plaintiff to inform the defendant of the change in the occupancy of the property. Inasmuch as that change increased the risk he should have made known to the company * * * at the time of renewal the fact that the risk had been increased by the lease of the property to the city of Rome for a, station-house for tramps and vagrants.” He did not do so.

The trial judge has found, viz: “that the said change in the risk was not made known to the company at the time of such renewal, nor did said defendant or its agents know at the time of such renewal that any change in the occupancy or risk existed.”

To meet this provision of the policy at the trial, the plaintiff gave evidence tending to show that he gave notice of such changed occupation in a second interview which he held with Putnam, the agent of the defendant. His testimony in that regard is flatly and positively contradicted by the testimony of Putnam. The trial judge saw the witnesses, heard them testify, observed their bearing upon the stand, and was called upon to determine which testified in accordance with the truth. It was his province to determine which he would believe. He has believed the testimony of the witness, Putnam, and found in accordance therewith. We have read the conflicting testimony and do not feel warranted in saying that the trial judge, with greater facilities for appreciating the evidence, has not found in accordance with the most reasonable view of the evidence.

Giving to the trial judge’s findings such influence as we think they are justly entitled to in considering this conflicting evidence, we are constrained to accept his conclusion upon the evidence as the same is evidenced in his findings of fact.

We think the trial judge was bound to rule as a matter of law as he did, and that we are required, due respect being had to the opinion of this court delivered on a former appeal, to hold that the conclusion reached by the trial judge was correct.

In a former appeal in this court an opinion was delivered, by Hulun, P. J., in which we find the following language, viz: I cannot agree with the referee that the policy was a valid obligation against the company at the time of the fire. The risk had been increased by reason of the use to which the building was put, after the policy was issued, and the notice to the defendant of the hiring to the city might have been sufficient to render the policy valid for the residue of the current year. But by the notice, the company was for a brief period, and when that period expired, the renting to the city would not be renewed.

When the defendant renewed the policy, it had the right to assume that the lease to the city had expired, and that the increased risk had completely terminated.

By the policy the renewal in the absence of evidence of notice that some change had been made in the building or its use was upon the terms of the original application, survey, &c., and as the mode of use had been changed to the prejudice of the company the policy was void.

Without further discussion of the questions raised by the learned counsel for the appellant we consider it our duty to follow the opinion of Judge Mullin, and to sustain the decision made at the circuit.

Judgment affirmed with costs.

Boardman and Follett, JJ., concur.


author: Boardman, J.

text:
    William Daffus, Appl’t, v. Eli F. Bangs et al., Respt’s.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Personal property—Nursery stock is.
    Parties rented lands of the defendants, upon which they planted nursery stock, wliich they subsequently, during the continuance of their term, mortgaged to the plaintiff. This mortgage was duly filed. Held, that the nursery stock was personal property and not real estate.
    2. Same—What regarded as severance from real property.

      Held, that the chattel mortgage given by the tenants to the plaintiff worked a severance from the real estate, and after default the absolute title vested in the plaintiff, who became entitled to enter upon the land and remove his personal property, with as little injury to the ■ defendants as possible.
    3. Same—Rights of party under chattel mortgage.

      Held, that a judgment and warrant of dispossession obtained against the tenants could not deprive the plaintiff of his right, nor could any voluntary act on their part.
    Appeal from a judgment non-suiting the plaintiff.

      W. S. McGregor, for appl’t; M. M. Waters, for resp’ts.
   Boardman, J.

The nursery stock was personal property and not real estate. It consisted of trees, plants and shrubs, planted by tenants for the purposes of trade and to be removed and sold when ready for the market. King v. Wilcomb, 7 Barb., 263; Green v. Armstrong, 1 Denio, 550; Jencks v. Smith, id., 580; S. C., 1 Coms., 90; Hamilton v. Austin, 36 Hun, 138, 142. The tenants held by virtue of a lease from defendants under seal for á term of five years from September 16,. 18Y6, with a right to an extension of two or three years, on lands planted to currants and raspberries. The tenant owned, as against the landlord, raspberries, etc., planted under such lease. November 25, 18Y8, the tenants, then in possession of and so owning said nursery stock, mortgaged the same to the plaintiff to secure him against his endorsement of their notes for $600, due in about two months. The mortgage was duly filed. In February, 18Y9, proceedings were begun by defendant to dispossess the tenants for non-payment of rent due. After a contest, possession was awarded the defendants and a warrant issued March 5, 18Y9, but never served upon the tenants. While the tenants were still in possession, and about March 14, 18Y9, the plaintiff claimed the property under his chattel mortgage of defendant Eli T., who promised plaintiff that he might take up the property in the spring, when the frost was out of the ground, so it could be done. Plaintiff, about the 1st of April, 18Y9, foreclosed his mortgage and bid in the property. When he went for the property, the latter part of April, the defendant refused to give it up. The respondents claim that the lease operated as a chattel mortgage in favor of defendants for any unpaid rents, so it was never filed nor had plaintiff any notice of it. He was a mortgagee in good faith.

The chattel mortgage given by the tenants to plaintiff worked a severance from the real estate, and after default the absolute title became vested in plaintiff, who became entitled to enter upon the land and remove his personal property, there being, with as little injury to the defendants as possible. King v. Wilcomb and other cases (supra); Wintermute v. Light, 46 Barb., 278; Bank of Lansingburg v. Crary, 1 id., 543.

The defendants had acquired no title to the property as against the plaintiff’s superior title. It may have been otherwise in respect to the tenants, whose rights of removal of the property may not have survived the existence of their lease. Whether such lease expired when the warrant for dispossession was issued may well be doubted. Powers v. Carpenter (15 N. Y. Wk. Dig., 155); further illustrated in Newall v. Wigham, 102 N. Y., 28 ; 1 N. Y. St. R., 666. But we think in no event ought such judgment and warrant to destroy the rights and title which the plaintiff in good faith had acquired in the mortgaged property. He was not a party to that proceeding and was not bound by it. How clearly ought he to have a reasonable time after such removal to enter up and take away the stock. Moore v. Wood, 12 Abb. Pr., 393. Nor could the tenants by their voluntary act of surrender of possession deprive plaintiff as mortgagee of his rights under his mortgage to this property. He could still enter and remove the mortgaged property. Ombony v. Jones, 19 N. Y., 234; London Loan Co. v. Drake, 6 Com. Bench R (N. S.), 796, 809.

We conclude that the nonsuit ought not to have been granted upon the facts shown.

The judgment must be reversed and a new trial granted, with costs to abide the event.


text:
    Thomas D. Stichter et al., Resp’ts, v. Benjamin F. Tillinghast, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Discovery—Code Civil Pro., chap. 8, title 6, art. 4—May be had AFTER ISSUE JOINED—GROUNDS.
    Under Code Civil Procedure, chapter 8, title 6, article 4, a discovery may he had after issue joined and for other grounds than those specified in the fourteenth supreme court rule.
    2. Same—Application must show what.
    But where the application is made after issue joined, it must show that the discovery is sought to prove his cause of action or his defense.
    3. Examination of party—Code Civil Pro., chap. 9, title 3, art. 1 — When allowed.
    A party cannot he examined under Code Civil Procedure, chapter 9, title 3, article 1, except for the purpose of proving the applicant’s cause of action or defense.
    Appeal from an order permitting plaintiffs to inspect the books and accounts of defendant’s assignor.

      Frank H. Hiscock, for resp’ts; B. T. Wright, for app’lt.
   Follett, J.

This order was applied for and granted after issue was joined; but it has been twice held that a discovery may be had after issue joined, under article fourth, title sixth, chapter eighth of the Code of Civil Procedure, and for grounds other than those specified in the fourteenth rule of the supreme court. Amsinck v. North, 2 Month. L. Bul., 67; aff’d 62 How., 114; S. C., 12 N. Y. Week. Dig., 573; Babbitt v. Crampton, 1 N. Y. Civ. Pro. R., 109; S. C., 12 N. Y. Week. Dig., 13.

An application after issue joined must show that the discovery is sought to aid the applicant to prove his cause of action, or his defense. Douglas v. Delano, 20 N. Y. Week. Dig., 85; Andrews v. Townsend, 2 N. Y. Civ. Pro. R., 76; S. C., 16 J. & S., 162; The Shoe and Leather Association v. Bailey, 17 id., 385; Mott v. The Consumers Ice Co., 52 How., 148; 2 Wait’s Pr., 531; Baylies’ Trial Pr., 120; Hall on Discovery, 3 Am. ed., 197.

The general term of the supreme court, of the superior court and of the court of common pleas are in accord on this question. This court held in Adams v. Cavanaugh (37 Hun, 232), that a party cannot be examined under article one, title three, chapter nine of the Code of Civil Procedure, except for the purpose of proving the applicant’s cause of action, or defense.

The papers upon which this order was granted do not show, or even allege that the books will furnish evidence which will aid the plaintiffs to establish then cause of action. _ There seems "to be no excuse in this case for the omission of definite allegations, as the plaintiffs’ counsel has been permitted to examine the books for two days, and defendant offered a further examination, and to permit them to be examined by an expert to be agreed upon by the parties.

An examination under an order seems to be sought because defendant refused to permit an examination by an expert unknown to him and not named by plaintiffs.

We think the allegations in the moving papers insufficient to support the order.

The view taken of the merits of this appeal renders it unnecessary to consider whether supreme court rule 37 was a bar to granting this order upon an order to show cause returnable out of the judicial district in which the venue of the action was laid.

The order is reversed, with $10 costs, and printing disbursements, and the motion denied, with $10 costs, but without prejudice to the right of the plaintiffs to make a new application for discovery, upon the payment of the costs.


text:
    Ellis J. Westlake, Emory Westlake and Frank Westlake, Resp’ts, v. Sarah M. Wheat and William Wheat, Appl’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Will—Legatee’s interest—How diminished or altered.
    The interest given to a legatee under a will cannot be diminished or altered otherwise than by some other 'will in writing, or some other writing of the testator, declaring such alteration and executed with the same formalities with which the will itself is required by law to be executed.
    3. Gift—Settlement—Donee’s right to enforce.
    A donee’s rights arising from an executed gift, or from an executed voluntary settlement, may be enforced against the donor or settlor.
    3. Trust—When created.
    Where the declaration of trust and the surrounding circumstances were sufficient to justify the conclusion that it was the intention of the defendant, Mrs. Wheat, to then divest herself of the title, and vest her sister and the plaintiffs with the title to one-half of the interest bequeathed to her under a certain will, and that hath the defendants herein should hold and administer said one-half for the benefit of said sister and the plaintiffs, a legal trust was established enforceable against the defendants.
    Appeal from a judgment for damages entered upon the decision of a special term.

      McGuire & Taber, for app’lts; Dailey & Bentley, for resp’ts.
   Follett, J.

Appeal from a judgment for $606.41 damages entered upon a decision of a special term. May 4, 1858, George McNish died, leaving a widow, five sons and five daughters. Sarah M. Wheat, defendant, and Harriet Westlake (plaintiff’s mother) were two of the daughters. By his will, executed April 14, 1858, he divided all of his property, except his homestead and household furniture, between his widow and nine of his children, Harriet West-lake being left wholly unprovided for. The homestead and household furniture were given to the widow for fife, and after her death to be sold and the avails divided between the nine- children mentioned in the will (Mrs. Westlake being the one not mentioned), the hens of a dead child (if any) taking the parents’ share, in such proportion that the sons should receive two dollars to the daughters one dollar, except that Sarah M. Wheat should receive two dollars, or a,son’s share. In other words, the sons and Mrs. Wheat were each to receive two-fifteenths, and three of his daughters named one-fifteenth each of the avails of the homestead and furniture.

Mrs. Westlake died intestate, in the year 1862, leaving three sons, the plaintiffs, who were in being when the testator died. In 1878 the testator’s.widow died, and thereafter the homestead and furniture were sold and the avails divided, each of the sons and Sarah M. Wheat receiving two-fifteenths, $1,005.25, and each of the three daughters named in the will one-fifteenth, $502.62. The plaintiffs received nothing, but claim that the defendants hold $502.62 in trust for them, under the following instrument:

“Whereas, George McNish, of Horseheads, Chemung county, and state of New York, has by his last will and testament bequeathed to his daughter Sarah M. Wheat, wife of William Wheat, two shares of the property that shall remain to be divided according .to the terms of his said will, after the death of his wife, Julia McNish, the one-half of said bequest was intended by the testator as a fund to be for the benefit of his daughter Harriet West-lake, wife of Charles Westlake, and her children, to be by her, the said Sarah M. Wheat, laid out and expended for their benefit as aforesaid, at such times and in such manner as the said Sarah M. Wheat shall deem expedient.

“Now, .therefore, we, the said William Wheat and Sarah M. Wheat, do hereby accept the trust so as aforesaid reposed in the said Sarah M. Wheat by the aforesaid George McNish/ and we do hereby promise the said George McNish that we will truly and faithfully carry out his views and wishes in the expenditure of the funds aforesaid, so far as in our power lies, and according to the best judgment of the said Sarah M.
“In witness whereof we have hereunto set our hands and seals this 1st day of May, 1858, in presence of
[l. s.] “ WILLIAM WHEAT,
[L. s.] “ SARAH M. WHEAT.”

The trial court found as facts that this instrument was drafted on the day of its date, at the instance of the testator, who intended to procure the defendants to execute it, but died before doing so. The will w~as probated May 24, 1858. The trial court also found that after the testator’s death, and before May 24, 1858, the defendants, with full knowledge of the terms of the will, at the request of Julia McNish, the widow, acting for Mrs. Westlake and her children, signed, sealed and delivered to her the foregoing instrument. It is also found that the testator intended that Mrs. Wheat should hold one-half of the amount given to her, in trust for Harriet Westlake and her children. The defendants, before this action was brought, repudiated the alleged trust, and Mrs. Wheat claimed to hold the whole sum in her own right under said will. No question is made over the fact that the judgment is for the recovery of the trust fmid.

The interest given Mrs. Wheat by the will cannot be diminished or “ altered otherwise than by some other wall in writing, or some other writing of the testator’s declaring such ” alteration, and executed with the same formalities with which the will itself was required by law to be executed (2 R. S., 64, § 42). The testator’s legal interest evinced by the bill controls the rights of the parties, and his actual interest, evinced by the executed writing of May 1st, 1858, and his oral declarations that Mrs. Wheat should hold one-half of the interest bequeathed to her in trust for Mrs. Westlake and her children does not convert Mrs. Wheat’s absolute title to the whole bequest to a title in trust for Mrs. Westlake and her children to one-half of the bequest. The will speaks as of the testator’s death, and when he died Mrs. Wheat was entitled, under the will, to two-fifteenths of the remainder of his homestead and furniture, and Mrs. Westlake to nothing. Prior to defendant’s execution of the above quoted instrument, called ‘£ a declaration of trust,” no legal obligation rested on the defendants, or either of them, in favor of Mrs. Westlake or her children.

The plaintiff’s right of action, if any, against the defendants arises out of the declaration of trust, somewhat aided it may be by the moral obligation resting upon Mrs. Wheat to carry out her father’s wishes in respect to providing for her sister and her children.

A donee’s rights arising from an executed gift, or from an executed voluntary settlement, may be enforced against the donor or settlor.

It is an exception, rather than the rule, to find trusts founded upon valuable considerations, or upon a consideration which would support an executory promise. If this declaration of trust and the surrounding circumstances are sufficient to justify the conclusion that it was the intention of Mrs. Wheat to then divest herself of the title and vest her sister and children with the title to one-fifteenth of the residuum, or one-half of the interest bequeathed to her, and, therefore, that her husband and herself should hold and administer the one-fifteenth for the benefit of Mrs. West-lake and her children. A legal trust was established enforceable against the defendants. Wright v. Miller, 1 Sandf. Ch., 103; rev. 4 Barb., 600, aff’d 8 N. Y., 9; Day v. Both, 18 id., 448; Martin v. Funk, 75 id., 134; Young v. Young, 80 id., 422; Kekewich v. Manning, 1 De Gex, M. & G., 176; 2 Pom. Eq. Juris., §§ 996, 997; 1 Perry on Trusts, §§ 95 to 100; Lewis on Trusts (8th ed., chap. 6). The discussion of the subject by the author last cited is full and instructive.

Under the evidence we think it was well held that the defendants perfectly converted themselves into trustees in favor of Mrs. Westlake and her children of the one-fifteenth of the homestead and furniture.

It is urged that the findings, that the defendants sealed the declaration of trust, that defendants signed it with full knowledge of the the terms of the will and that the intestate intended that one-half of the legacy to Mrs. Wheat should be applied for the benefit of Mrs. Westlake, are contrary to the evidence, for which reason the judgment should be reversed. It is recited in the declaration of trust that it is sealed. Charles Westlake testified that defendants delivered it to Mrs. McNish in his presence shortly after the testator’s death, and that Mrs. McNish delivered it to Mrs. Westlake on the same day, and that it was then sealed.

Prank Westlake testified that the instrument was in the same condition at the trial that it was when he first saw it many years before. The defendants testified that it was not sealed when they executed it, and their son-in-law testified that it was not sealed when he copied it, four or five years before. This evidence presented a question of fact, the decision of which this court will not disturb.

We are not disposed to believe, from the circumstances, that the defendants executed the instrument without knowing the terms of the will; and the fact that this declaration of trust was drawn at the instance of the testator and by the person who drew the will, is a circumstance supporting the finding in respect to the testator’s intention.

The situation of these families has greatly changed since the declaration of trust was signed. The father had just died, the mother was alive and the sisters lived near each other with their children. Twenty years passed before the mother died and Mrs. Wheat’s interest under the will vested in possession. Seven years more elapsed before this case was tried. Mrs. Westlake had then been twenty-three years dead; her children had become men; and were scattered, and feelings existing at and about the time of the father’s death had undoubtedly changed. Under these circumstances we do not think it strange that the court found, in effect, that self-interest and the lapse of twenty-seven years had dulled the recollection of the defendants as to some of the facts and circumstances attending the execution of this instrument. We do not think the defendants can justly complain of the findings of fact. The judgment is affirmed with costs.

Hardin, P. J., and Boardman, J., concur.


text:
    Nancy H. Williams, Resp’t, v. George W. Kierney and William R. Olney, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Contract—Sale op real estate—Executory contract for purchase BY INTESTATE—DESCENDS TO HEIRS-AT-LAW.
    At the death of a person intestate his equitable interest as a purchaser under an executory contract for the purchase of real estate is in equity real estate, and descends to his heirs-at-law, and the unpaid purchase-money is payable out of the personal assets of the intestate.

      2. Same—Dower—Right op, in land contracted por.
    The equitable dower of the widow of the intestate in the said real estate is subject to the equitable lien existing in favor of the vendor of the premises and arises by operation of law and not as on a purchase for value. She has an equitable claim to have the personal estate exhausted in discharging the personal obligation of her husband under the contract for the purchase of the land.
    S. Same—Before admeasurement dower is a mere right op action,
    Her claim of dower is a mere right of action which could not be conveyed before an admeasurement. It could not be a lien so as to enable the grantee thereof to sell it in his own name. It can only be reached by a creditors bill or in supplementary proceedings before its formal assignment. (Cases cited.)

    4. Same—Forfeiture op interest under contract for purchase.
    Before the vendor could forfeit the interest of the children of the intestate in the property under the contract in question he would he required to give notice of his intention and to make a demand for fulfillment of the contract within a reasonable time or in default, notice that their rights would be deemed abandoned. In the absence of such a notice they were entitled to a specific performance of the contract as against the vendor or his grantee with the knowledge of their equities. Hardens v. Patterson, 43 N. Y., 318, distinguished,.

      5. Same—Notice of claim of riqht in land—Possession.
    Where the widow of intestate and his children had continued’ to occupy the land in question for many years after his death. Held,, that their possession was sufficient to give notice of their rights and interests and to put defendants upon inquiry.
    Appeal from a judgment entered in Oneida county upon the report of a referee. The referee found as a conclusion of law, viz.: “That the plaintiff having become the owner of all the title and interest of the heirs at law of her deceased husband, and having the right of dower therein is entitled to the relief demanded in the complaint; that the judgment of the court should declare said mortgage of the defendants to be void and that the same be set aside and canceled, and that the county clerk of Oneida county, be directed to cancel the same of record, and plaintiff have her costs and disbursements, etc.”

      J. P. Olney, for app’lts; C. W. White, for resp’t.
   Hardin, P. J.

June 19, 1866, B. N. Huntington was the owner of the premises described in the complaint, situated in,the city of Rome, and entered into a contract with one Isaac N. Williams for the sale of the premises for the sum of $906.66, to be paid within six years from the date of the contract, providing that when the payments were all made the deed was to be delivered to Williams, his heirs and assigns. At about the date of the contract Williams entered into possession of the premises, built a house thereon, surrounded it with a fence and made considerable valuable improvements thereon.

Williams made payments on the contract up to the time of his death, which occurred on the 28th of February, 1874. He left him surviving his widow, who is the plaintiff herein, and seven children, all of whom survive, except Frederick, who died when about seven years old intestate, sometime after the death of his father. All of the children were infants, under the age of twenty-one years, at the time of "their father’s death.'

, The widow and children were in possession of the premises, described in the contract, at the time of the death of Williams, and have remained in possession ever since. Williams died intestate, and on the 25th day "of March, 1874, the plaintiff and her father, H. 0. Kenyon, were duly appointed administratrix and administrator of the estate of the deceased.

The intestate left at the time of his death some personal property, having been engaged in the ice business, gathering and selling ice in the city of Rome, and having obtained for that business a lease of the ice house and pond where he gathered and stored ice. The lease had three years to run at the time of his death. At the expiration of it Kenyon, while acting as administrator, procured a renewal of the said lease in his own name for said ice house and pond. Adjacent to the lot in question was a low place or pond, which the deceased in his lifetime filled with earth and on which he erected a barn on the land thus made, and a fence separated it from the lot described in the contract occupied by the plaintiff and her children. The barn was used to stable teams and place tools used in the ice business, and it was used for a like purpose after the death of Williams by his sons and Kenyon carrying on and continuing the ice business.

Kenyon, after his appointment as administrator aforesaid took possession of the personal estate of the deceased, and had the sole management of the estate as such administrator. He caused an inventory to be made of the personal assets of the deceased, exclusive of the lease for the ice house and pond, of which no inventory was taken. The lease was used and treated as a part of the estate of the deceased. The property inventoried amounted to about $900. '

The ice business was continued by Kenyon, with the aid of the sons of the deceased, in the same way and manner that the deceased had carried it on in his lifetime, and the personal assets of the estate, including the ice then gathered, and in the ice house, valued at about $700, were managed and controlled by the administrator, together with about $4,370 contributed by one of the . sons of the deceased, the administrator mingling the same, and using it with his own property, so that it could not be ascertained how much, or what part of it, was used for any specific purpose or object, or how much of it came from the increase of the ice business, or from other sources.

Out of this mixed fund Kenyon, the administrator, paid debts of the deceased, amounting to about $1,500, and paid Huntington- “ on said land contract the sum of $662, and supported plaintiff and her children out of the same, with what was done to aid in that respect by the sons of the plaintiff,” and also supported his own family, paying his own debts, taxes and insurance “out of the general mixed fund.” Kenyon, as administrator, never accounted to the estate, and never had any accounting or settlement of or concerning the property of the estate of the deceased.

The referee has found, as a fact, viz.: “That from the death of said I. N. Williams, up to the time of the trial of of this action, the plaintiff and her children, the only heirs-at-law of the said deceased have been in the exclusive possession of the premises described in said land contract.”

The referee also found that the intestate paid on the land contract to Huntington divers sums of money, and that several of the payments were made after the time for the payment of the whole purchase price, by the terms of said contract, had become due, and that Kenyon paid out of the “mixed fund” the sum of $662 to Huntington, on said contract, and which said Huntington received as payment thereon. The last payment having been made November 1, 1875, and which was long after the whole purchase price on said contract, for said premises, had become due.

The referee has also found; viz: “That on the third day of November, 1875, said Huntington prepared a notice and intrusted the same to the said Kenyon, to serve on the plaintiff and her said children, declaring that he elected to terminate said contract, stating therein that he should proceed to take possession of said premises; that said Kenyon testified, on the trial hereof, that he did not serve the said notices on. the plaintiff and her children, and the plaintiff and several of the children also testifying that such notice was not served on them. * -* * That said notice was not served on said plaintiff and her said children.” i

The referee also found that on the 27th of November,' 1875, an agent of Huntington, together with an attorney of Huntington, and at his request, entered the house of plaintiff on said premises, in said contract described, and in the presence of the plaintiff and some of her children, but not all of them (nor does it appear how many, or which of the children were present) made a formal declaration that they took possession of the house and premises' in behalf of said Huntington, stating that they did so under and in pursuance of a forfeiture of said contract; and stating that the premises thereafter would belong to said Huntington, and that he should contract the same to H. 0. Kenyon; that no proceedings were ever taken to dispossess the plaintiff or her said children of said premises.

_ By the evidence, it appears that the steps taken by Huntington were with the knowledge and apparently by the procurement of Kenyon, who was thus contriving to get the “legal title to the premises covered by the contract.”

The referee also found, viz.: “That on the 29th day of November, 1875, the said Huntington and his wife deeded the premises described in said contract to said H. 0. Kenyon, which deed was duly recorded in the county clerk’s office of the county of Oneida, in which county the premises are situated, on the 14th day of December, 1875; that said Kenyon did not inform or let the plaintiff and her children know that he had received or taken a deed in his own name for said premises from said Huntington; nor did they know of it till about two years before this action was commenced, nor till after the said H. C. Kenyon had given the mortgage hereinafter named to the defendants in this action.”

It also appears by the findings of the referee that at the same time that Huntington executed the deed to Kenyon, Kenyon executed and delivered to the Rome Savings Bank a mortgage on the same premises “for §700,” that being the sum then due on said contract at that date as balance of the purchase price of the premises, and which sum was paid to said Huntington therefor; which mortgage was soon thereafter duly recorded in the county clerk’s office of Oneida county.

In this action no question is made in regard to the validity of the mortgage to the savings bank, as the money received upon it was applied in discharge of Huntington’s lien on the real estate covered by the contract.

The referee has also found: “That on the 29th day of December, 1883, the said Kenyon executed and delivered to the defendants herein the mortgage described in the complaint herein, covering the same premises, for $1,500, to indemnify them for indorsing for him two several promissory notes for $443 each, payable at some of the banks in Rome, N. Y., in three months from date, and all renewals of said notes were to be also secured by such mortgage; and thereupon said defendants indorsed other notes for said Kenyon, which said mortgage was also intended to secure.”

That mortgage was recorded on the 15th of December, 1883, and’he has also found that the notes so indorsed were for Kenyon’s benefit, the defendants being accommodation indorsers. That Kenyon is insolvent and unable to pay the notes; that before the defendants took the mortgage from Kenyon they obtained a search from the clerk’s office, and “found thereby that the title to the premises described in said mortgage was in said Kenyon by deed from said Huntington, and that they relied expressly on said search in reference to the title of said premises. ”

The referee, also found “that the defendants knew said I. N. Williams, in his life-time, and the said premises occupied by him up to the time of his death; that they knew of the death of said I. N. Williams, at the time it occurred, and that he left a widow and children him surviving; but they did not know that said H. 0. Kenyon was one of the administrators, or was acting as such, of the estate of said Williams, when they took said mortgage from said Kenyon; but that the defendants did know, at the time they took said mortgage, that the plaintiff was then residing on said premises covered by said mortgage.” He also found, as a matter of fact, viz.: “That before the commencement of this action, the said H. 0. Kenyon, and each and all of the heirs-at-law of the said I. N. Williams, deceased, duly sold and conveyed, by deed, the premises described in said contract, and covered by said mortgage to the defendants, to the plaintiff herein, who is now the owner of all right, title and interest, which they had therein.”

The evidence given upon the trial indicates that the plaintiff and her children were in the open, visible and exclusive possession of the premises described in the contract. The attempt to show that Kenyon was in possession in conjunction with her children of the premises in question was a failure. All that he could have said to have been in possession of, was the barn, which by the evidence upon the trial, as well as by the referee’s findings, appears not to have been situated upon the premises described in the contract, but adjacent thereto, upon the earth which had been filled in, and upon which the barn was situated, adjacent to and near the premises covered by the contract. The possession by plaintiff and her children, under the contract, of the premises described in it, was open, notorious, visible and sufficient to give notice t.o the defendants of the rights and interest of the plaintiff and the children in the premises, or to put the defendants upon inquiry which would have yielded information of the plaintiff’s and the children’s rights and interest in the premises. Brown v. Volkening, 64 N. Y., 82.

The case before us upon the facts which we have already stated, distinguish it from Pope v. Allen (90 N. Y., 302). In that case the occupation was equivocal “ since Pope was also in possession, and there was nothing to indicate that defendants possession was not subordinate to his, or suggested hostility to the record title. ” Defendants were ‘ ‘ put upon inquiry ” and omitted to pursue the proper investigation with due diligence. Brumfield v. Boutall, 24 Hun, 456.

At the death of Williams, his equitable interest as a purchaser under the executory contract for the premises in question was in equity real estate, and descended to his heirs-at-law, and the unpaid purchase money was payable out of the personal assets of the intestate. Champion v. Brown, 6 Johns. Ch., 398; Griffith v. Beecher, 10 Barb., 432.

The equitable dower of the widow in the premises was subject to the equitable lien existing in favor of Huntington, the vendor of the premises, and arose by operation of law and not as on a purchase for value. She had an equitable claim to have the personal estate exhausted in "discharge of the personal obligation of her husband under the contract of purchase of the land. Warner v. Van Alstine, 3 Paige, 513. Her claim of dower was a mere light of action which could not be conveyed before an admeasurement. 10 Wend., 414; Ritchie v. Putnam, 13 id., 524. It could not be a hen so as to enable the grantee to sell in his own name. Jackson v. Vanderheyden, 17 Johns., 167; Tompkins v. Fonda, 4 Paige, 448. “It could only be reached by a creditor’s bill as a thing in action before formal assignment, ” or supplementary proceedings. Tompkins v. Fonda, supra; Payne v. Becker, 87 N. Y., 155.

Forfeitures are not favored in law or in equity. Before Huntington could forfeit the interest of the children in the property under the contract in question he would be required to give notice of his intention and to make a demand for fulfillment of the contract within a reasonable time. In the language of the contract, we find the following, viz. : “The said party of the first part, his certain attorney, executors, administrators or assigns shall have the right to terminate this contract, and thereupon, on giving written notice to the said party of the second part, his heirs, executors, administrators or assigns, of having so terminated said contract, to recover by suit at law all the interest which shall have accrued upon this contract up to, the day of so terminating the same as rent for the use and occupation of said premises, to take immediate possession thereof.”

The evidence fails to show the actual resumption of possession of the property by Huntington. The evidence indicates that the effort to cut off the rights of the,,widow and children in the premises was by a concert of action between Huntington and Kenyon.

Kenyon was an administrator, charged with the duty of applying the personal assets to a satisfaction of the amount due upon the contract. Instead of performing that duty and rescuing the property for the benefit of the widow and children, he apparently entered into a collusive scheme to acquire the legal title of the premises himself, with the knowledge, assent and co-operation of Huntington. The children could not be barred of their rights “without notice requiring performance in a specified reasonable time, or in default, notice that their rights would be deemed abandoned.” In the absence of such a notice to the children, they were entitled to a specific performance of the contract as against Huntington or his grantee, with the knowledge of their equities. Myers v. De Mier, 52 N. Y., 648; Divine v. Divine, 58 Barb., 264.

It seems to follow, therefore, that when Kenyon took the conveyance from Huntington of the premises, he acquired only the legal title thereto, which in his hands, as in the hands of Huntington, was subject to the equitable rights and interest of the widow and children of the deceased, who were in possession of the property.

This action is unlike Havens v. Patterson, 43 N. Y., 218, as in that case the sale was to tw;o parties, one of whom died, and the court remarked, viz.: “Although equitable title under the contract was held by the purchasers as tenants in common, yet the contract itself was single. As to the vendor the purchasers were one party and a notice to one being in possession and a refusal by him to perform, in the absence of collusion, or bad faith, was sufficient to affect the rights of the purchaser and the vendor under the contract to the same extent as though both had been served. Besides, in that case the vendor took possession and there were no personal assets in fact, and it appeared that the administrators consented without any fraud or collusion to abandon the contract.

Risley v. Fuller, 40 Hun, 585, is unlike the case in hand. That was a law action where the parties sued upon their legal rights as distinguished from their equities, and it did not appear that any of the purchase money had been paid and the action rested wholly upon the legal title and the right to the possession of the premises, no equities being established sufficient to defeat the legal title.

Plaintiff, upon the facts appearing at the trial, holds three relations to the premises in question: First, as dowress; second, as grantee from Kenyon; third, as grantee from the children of her deceased husband.

It is insisted by the appellants that she is estopped from questioning the Hen of the defendant’s mortgage upon the premises.

_ It is insisted, in the defendant’s answer, that the plaintiff, by her delay and loches, is “estopped from claiming that said mortgage is not a vaHd and existing Hen on said property, and free and clear of any alleged equitable or other claim of plaintiff. The answer contains no defense setting up the statute of limitations.

If it_ be conceded that the facts and circumstances disclosed in the evidence were sufficient to estop the plaintiff as dowress in the premises, such estoppel would not extend to her as the grantee of the title and interest of the children. As to that title or interest she stands in the shoes of the children, and such rights as they had in the property at the time of their conveyance to her she is entitled to assert as their grantee. The effect of that estoppel on the plaintiff at most could be to bar her of the right to assert her dower in the premises as against the defendant’s mortgage upon the assumption that to allow her to make such an assertion of dower would be a fraud upon the defendants as mortgagees. Dougrey v. Topping, 4 Paige, 93.

It is not difficult to see how the defendants, in virtue of their mortgage, although the plaintiff may be estopped from setting up a dower in the premises as against them, can realize all the beneficial fruits of such an estoppel. 87 N. Y., 153.

Appellant calls our attention to Gregg v. Von Phul (1 Wallace, 274). There the doctrine of estoppel was applied to a deed which was tendered, and it was hold, “If the deed was justly liable to objections they should have been stated when the deed was tendered and the money due on the contract demanded.” And it was said that if one has a claim against an estate and does not disclose it, but stands by and suffers the estate sold and improved with the knowledge that the title has been mistaken, he will not be allowed afterwards to assert his claim to the purchaser.

However, without passing upon the question as to how much the defendants may be benefited by the application of the doctrine of estoppel insisted upon by them as against the plaintiff as equitable dowress in the premises, we may modify the judgment so that it shall not be a bar to the defendant’s rights as mortgagees as against plaintiff’s dower interest in the premises. But my brethern are of the opinion that the judgment should be affirmed, with costs. Such will be the judgment of the court. • ,

Judgment affirmed, with costs.

Boardman and Follett, JJ., concur.


text:
    Fairbank Canning Company, Resp’t, v. Seth X. Metzger, etc., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Contract for sale of personal property—Executory — Warranty.
    An executory contract for the sale of personal property may be with or without express warranty as to its quality, description or condition.
    3. Same—When vendee may decline to receive property.
    If an express warranty is not part of the contract of sale, the purchaser may decline to receive the property when offered for delivery, if, after reasonable opportunity for examination, he finds it is not such as was contracted for.
    3. Same—Effect of acceptance and use of property.
    The acceptance and use of the property in the last case is an admission that the contract has been complied with, and no action can thereafter be maintained against the vendor for defects existing at the time of the delivery or afterwards discovered. The purchaser, to protect himself from such losses, must exact from the vendor an express warranty of quality, condition, fitness, etc.

      4. Same—Warranty—Right of purchaser.
    Where property is bought under such a warranty, the purchaser on tender of delivery may reject the same, if it is not what was contracted for. or he may receive anti use it and seek a recovery of his damages for the breach of the warranty.
    6 Same—When express warranty survives acceptance.
    The express warranty survives an acceptance by the purchaser whenever the defects are of a character not readily to be discovered, on an examination of the property after delivery. Whether the buyer may accept of property under an executory contract with warranty, knowing at the time of acceptance that it was not what the vendor had warranted it should be, and still retain iiis right of action for breach of warranty. Qumre.

    6. Same—Sale of provisions—Ho implied warranty when.
    There is no implied warranty of quality, condition or soundness on sale of provisions as merchandise, though a different rule applies when provisions are sold for consumption.
    Appeal from a judgment entered upon the report of a referee.

      H. S. Bedfielcl, for resp’t, G. L. Smith, for app’lts.
   Boardman, J.

If the defendants had the right to refuse to receive the car load of beef at Dunkirk, on the 4th day of April, when the car was opened, and the condition of the beef ascertained, they forfeited such right by selling beef from the car at various points between Dunkirk and Elmira, and by their neglect for eight days to exercise such right.

The defendants must rely solely upon an express warranty by plaintiff of the kind, quality or condition of the beef sold and delivered to the defendants, which survived the acceptance of the property by defendants. If there were such a warranty there was beyond doubt, and on the facts, found a breach of it, and the defendants should have been allowed their damages. The learned referee has found that there was no warranty, and hence no damages were allowed the defendants.

Was there such a warranty as entitled the defendants to recoup their conceded damages ? That is the only question to be decided, and on its decision depends the validity of this judgment.

The contract is wholly shown by the correspondence between the parties. Hence it becomes a matter of construction of the written evidence. After a careful examination of the evidence we do not find any express warranty of the kind, quality or condition of the beef sent. There are preliminary conditions in which the defendants say what they will want if they trade with plaintiff, and the latter gives prices, and states that they will be well dressed and cleaned; in fact, in first-class condition in every respect.” But this letter does not get an order. Qn March 12th, defendants order “one car load of good steers, in good condition,” etc. Plaintiff fills the order March 14th, saying, “ Shipped you car of good beef to-day.” That car load was satisfactory to defendants. The second bar load was shipped on 17th, on order saying: “'If beef all right, will take one car. * * * Add thirty good steers’hind quarters.” Plaintiff reply in substance, order received and beef will be shipped, and on 17th telegram, “Shipped car of beef.” At folio 311 defendants say in substance that car load is satisfactory. The next car load was shipped on 24th, on order of defendants, “ Will take car of beef at prices of to-day.” On 22d plaintiff says: “We will take all the pains possible to have the beef turned out in the very best condition. Think you will find an improvement in next shipment.” On the 27th the defendants ordered the fourth car of beef, by telegram, and at the same time complain of the condition of the beef that comes in Merchants Dispatch. That car was shipped the 31st of March, but on 29tn plaintiff writes that it will be shipped “ in a Trimiman refrigerator car, which belongs to us. We know that the beef will go through all right, and reach you in splendid condition.” On 31st plaintiff sends telegram to defendants: “ Shipped you load beef to-day.” etc. This gives the evidence so far as necessary to show that no express warranty was given by plaintiff of the kind, quality or condition of any of the beef sent. Plainly the defendants wanted and expected, and had a right to receive good merchantable beef, in good condition.

Under the contract the- plaintiff should have furnished such beef. If it were not so furnished the defendants could reject and refuse to receive it. The defendants understood that they might reject the beef if it was not up to contract. At folio 274 they say “Unless you can send your "beef in as good a condition as your competitors Armour & Co., and G. F. Swift, will hot accept it.” Again at folio 291 “We have wired you an order for a car of beef if all right,” and again at folio 296 “ If beef all right, will take one car.” This language indicates an understood purpose on the part of the defendants, to exercise the right of rejection if occasion required. That right might exist in connection with an express warranty if it were a part of the contract, Muller v. Eno (14 N. Y., 601), perhaps even without. Day v. Pool, 52 N. Y., 416, 418; Parks v. Morris Axe and Tool Co., 54 id., 586, 591. But even an express warranty would not avail the defendants, if the defects of the beef when first examined were clearly visible and known to the defendants, or their agent. Day v. Pool and Parks v. Morris Axe Co., supra. It is there held that open and visible defects are not warranted against; Day v. Pool, 420. In Brigg v. Hilton (99 N. Y., 528, 529), it is held that the purchaser may reject the goods purchased upon an executory contract as not answering the bargain, but if the sale was with warranty, he may receive the goods and have the right to compensation if the warranty is broken. And this does not conflict with Reed v. Randall (29 N. Y., 358), as is explained in Day v. Pool (supra, 421), Muller v. Eno (14 N. Y., 597), Dounce v. Dow (57 N. Y., 16-23; S, C., 64 id., 411).

After much consideration, we have come to the following conclusions as expressive of the law applicable to the present case viz:

First. An executory contract for the sale of personal property may be with or without express warranty as to its quality, description or condition.

Second. If an express warranty is not a part of the contract of sale the purchaser may decline to receive the property when offered for delivery if after reasonable opportunity for examination he finds it is not such as was contracted for.

Third. The acceptance and use of the property in the last case is an admission that the contract has been complied with and no action can thereafter be maintained against the vendor for defects existing at the time of the delivery or afterwards discovered.

Fourth. The purchaser, to protect himself from such losses, must exact from the vendor an express warranty of quality, condition, fitness, etc.

Fifth. Where property is bought under such a warranty, the purchaser on tender of delivery may reject the same, if it was not what was contracted for, or he may receive and use it and seek a recovery of his damages for the breach of warranty.

Sixth. The express warranty survives an acceptance by the purchaser whenever the defects are of a character not readily to be discovered on an examination of the property after delivered.

It is not quite clear that the buyer may accept of property under an executory contract with warranty, knowing at the time of acceptance that it was not what the vendor had warranted it should be, and still retain his right of action for the breach of warranty. Chatfield v. Frost, 3 Th. & Co., 357, 359; Brown v. Burhans, 4 Hun, 227 and cases hereinbefore cited.

Seventh. There is no implied warranty of quality, condition or soundness on sale of provisions as merchandise. Moses v. Mead, 1 Den., 378; affirmed, 5 id., 617. Though a different rule applies when provisions are sold for consumption. Id.

In the case of Burch v. Spencer (15 Hun, 504), the action was in form on warranty and for fraud and deceit in selling-boar meat to a retailer of provisions and representing that it was not boar meat; It was held to be an action on warranty and a recovery by the seller was reversed, on the ground that plaintiffs were retailers as well as wholesale merchants, and that meat packed by them was sold to their neighbors for food. Thus the rights of the buyer to recover damages were brought directly within Moses v. Mead (supra). Certainly the latter case was recognized as law.

We think the learned counsel for the defendants, in his elaborate brief, has failed to recognize some of the principles to which allusion has been made. For instance, the liability of a vendor with express warranty is very different if no such warranty is made. His duty under the contract of sale may be the same in each case, but the consequences very different on failure to perform his duty.

Again, an implied warranty is urged upon us as a basis of damages with as much zeal as an express warranty, while we have seen that such claim is not well founded.

Again, on page 32 of his brief, the counsel concedes that this doctrine of estoppel by acceptance might apply to this case if all the parties had resided in Elmira and the delivery was to be thus made. But though the delivery of this beef was to be made in Chicago the defendants had the right to examine it at Dunkirk and reject it if defective.

But we again repeat, the sole question is, “was there an express warranty of the goodness and soundness of this beef?” We regret that we do not find any satisfactory evidence of one. It was simply a contract to sell car loads of beef of certain kinds. The plaintiff as it seems to us, studiously and concisively avoided warranting the property sold as to its quality or condition. The defendants have suffered damages by reason of the transaction. We should be glad to allow them a remedy if the principles of law would permit. But we think it would be dangerous to permit purchasers to receive and sell property, knowing it was not a performance of the vendors contract of sale, and after-wards sue the vendor for damages arising from such known defects. Perhaps another court may hold that an express warrnty of quality is shown in this case.

The judgment must be affirmed, with costs.

Hardin, P. J., concurs; Follett, J., dissents.


text:
    Charles Coppins, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed January, 1887.)

    1. Negligence—Master and servant—Liabilities.
    Employers are not bound to insure against accidents, they are only obliged to provide appliances which are safe, so long as used without negligence; the employee takes the risk of danger from negligence of his co-employee. ,

      2. Same—Duty to provide safest instruments,
    Between employer and employee the law does not requires the safest appliances or instruments, nor does it fix a liability upon the employer for the failure to discard, those which are not safest for every exceptional exigency.
    3. Same—Railroad—Kind of switches not for jury to determine.
    It may not be left to the jury to say what switches, what patented article or contrivance shall be used by a railroad company, in order to escape liability from injury to an employee caused by the negligence of a co-employee.
    Appeal from a judgment on a verdict of $15,000 taken at the Onondaga circuit, and an order denying motion for a new trial on minutes, and from an order granting an extra allowance".
    Plaintiff, was a brakeman in the employ of defendant, and had been in its service quite a number of years, and was injured May 10, 1880, when the- express train coming west on track No. 2 was derailed, because a switch at St. Johnsville was left open. On the north side of the road there was a freight house, coal depot and water tank; on the south side of the tracks was an engine house and other structures.
    A branch, known as a cross-over, was kept by defendant for the purpose of the business passing across the main tracks from the north side of the engine house and branches on the south side of the main tracks. It was what is known as a direct cross-over, and connected to the main track by switches. The switch connecting the cross-over with track No. 2, on which was running plaintiff’s train, has been unlocked, and the train on No. 2 when it reached the switch took the cross-over and passed toward track No. 1, and defendant claims before reaching track No. 1, and after reaching it, plaintiff claims, left the track and was wrecked. Plaintiff claims that a certain safety switch, known as the “ Ooolc switch,” should have been used on No. 2 in connection with a trailing cross-over and set for such crossover, and that the train then would have passed along No. 2 in safety, notwithstanding the misplaced switch.
    Defendant claims this was in fact a “Cook switch” properly constructed and in good working order at the time -of the accident. The court left it to the jury to say whether or not defendant was negligent in maintaining a direct cross-over at this place.
    General Priest, the superintendent, and others, said it was needed- in the business, and was proper and suitable for the use required. Evidence was given by plaintiff tending to show the contrary.
    Plaintiff also claimed other negligence on the part of defendant. That Schram, the switchman, was an improper and incompetent employee and improperly retained in defendant’s service.
    The court charged the jury: “You are to take all the surroundings of this case as they existed at and just prior to this accident in 1880, and say whether’ at that time, with the means that this company had in its hands, with the knowledge it had of safety switches, and the knowedge it had of the different kinds of cross-overs, with the knowledge it then had of the liability to accident, you are to consider what it was reasonable and proper that this company should be required to furnish as a means of safety against the occurring of accidents. * * * Was a direct cross-over, as they had it there, safe and proper, reasonably so, for this company to furnish at that time ? Or, in order to have furnished a reasonably safe and proper cross-over, ought they to have had a trailing cross-over.
    Also, “ The question of fact is for you upon this question we are considering now, whether there was a failure at that time and immediately prior to this accident to furnish reasonably safe and proper road-bed, track and appliances at the point of this accident.”
    Also, if the cross-over had been a trailing one, and the Cook switch there in use, would the train still have been derailed and the accident occurred L If it would, notwithstanding a trailing cross-over was there, then there is no right of action. But if a trailing cross-over had been there, and then the train would have gone over in safety, why then you may find that the failure of the defendant to put a trailing cross-over there where the direct now is, was the cause of the accident; that in the absence of that neglect, on the part of the company the accident would not have occurred.”
    The court was requested to charge “that the defendant had the right to "assume that the "train in question would pass through St. Johnsville on the usual track, and that its switches would be properly closed by its employees, and that it was not bound to provide escapes from that track to the-south track as a guard to its servants’ possible neglect of duty, and that it was one of the risks taken by the plaintiff in his employment and continuing in defendant’s service.”
    Refused and exception by defendant.
    The court was requested to charge, viz: “That whether the employee knows or not that the best and safest kind of appliances are not used, still by entering upon a hazardous employment he assumes any risk resulting from ordinary structures used by his employer in carrying on its business, - and proper for that purpose.”

      The court replied, ££I cannot charge in that language; I have charged upon that subject, and I leave it as I have already charged.”
    Exception to the refusal and to the charge as made.
    The defendant requested the court to charge “that proper switches do not mean the latest- and most improved, kind.”.
    The court replied, viz.: “ I charge that they do not necessarily mean the latest and most improved.”
    There was an exception to'the refusal and to the modification.
    The defendant requested the court to charge, viz.: “ And that the company were not bound to use the Point switch or the Cook switch in the place of the Wharton switch or any other switch that they had in use.”
    The court replied, viz.: “I leave it as a question of fact
    for the jury as to whether it was necessary, in order to furnish a reasonably safe and proper road-bed, track and structure at this point where the Wharton switch was, to use any one or more of these switches. I leave it to the jury, and do not hold that they are bound to or that they are not.”
    Exception to refusal and to charge as given.
    The defendant requested a charge, viz.: “That the defendant was not bound to furnish a switch which would safely conduct the train leaving track No. 2 to and upon track No. 1 in case the switchman negligently left the switch open on No. 2.”
    The court replied: “ I leave that question to the jury. I do not charge that they were bound to. ”
    Exception to the refusal, and also “to the leaving of that question to the jury.”
    Later on the defendant requested the court to charge “that the defendant was not bound to furnish a switch which would safely conduct'the train leaving track No. 2’ to and upon track No. 1, in case the switchman negligently left the switch open on No. 2.”
    The court then replied: “I think I will charge that—that it was not bound to. I will charge that.”

      William Q. Tracy, for app’lt; Louis Marshall, for resp’t.
   Hardin, P. J.

When the plaintiff was injured on May 10, 1880, he was in the employ of the defendant as a brakeman upon an express train, approaching St. Johnsville from the east, at 5:03 p. M., and it was not expected that the train should stop at that station, but the engineer failed to look and discover by the signal given by the target that there was an open switch near the station and to apply his brakes and stop the train. Schram, the switchman, had left the switch open. The train was derailed and the plaintiff injured.

It was apparent at the trial that the engineer and Schram were negligent, but the court told the jury that the plaintiff could not recover as he was a co-servant, if their negligence solely caused the injtiry. But he allowed other inquiries to be made as" to whether the defendant had not itself been guilty of negligence and the jury to find that the accident 1 ‘ would not have occurred if it had not been for the negligence of the defendant itself.” Cone v. D. L. and W., 81 N. Y., 206.

The switch, which was left open by Schram, had been in use for the purpose of passing trains from the north side of track No. 2, on which' plaintiff’s train was running westwardly, to the southerly side of track No. 2. It had served the purpose for which it was designed, and safely carried trains across. For all the ordinary and usual purposes it had proved and appeared to bean adequate “instrumentality.”

The court left it to the jury to say whether it was a proper and suitable instrumentality and whether it was not the proper and suitable instrumentality, and whether it was not the duty of the company to have a different one, one that would serve the purpose of meeting all exigencies brought about by the negligence of two employees of the defendant, who were co-servants of the plaintiff. Primarily the negligence of the engineer, and proximately the negligence of Schram, the switchman, in leaving the switch open, carried the train off of the track No. 2 and produced the derailment which injured the plaintiff.

If the stringent exaction of the rule which defendant is under in regard to passengers were applicable, the theory of the plaintiff might be proper. 19 N. Y., 127; Hedgeman v. The Western R. R. Co., 16 Barb., 353; S. C., affirmed, 3 Kernan, 9.

But a'different rule obtains when the injured party is an employee who, by his contract of employment, takes upon himself the risks caused by the negligence of his co-employees and thez usual risks incident to the hazardous employment in which he engages.

The pivotal question upon this branch of the case turns upon the solution of the question as to whether the defendant was negligent in not providing a safety switch, a trailing switch, or such a contrivance in addition to the ordinary cross-over as would guard against the exigency which came about by reason of the neglect of the engineer and Schram. the switchman. That question seems to be determined adverse to the plaintiff by the case of Salters v. Del. and H. Co. (3 Hun, 338). It was said in that case that “a railroad company is not bound to employ mechanical appliances to protect one servant from injury liable to result from the negligence of another.”

The negligence asserted was the omission of the defendant to have a target switch, and Landon, J., said: “The switch was not open in consequence of any defect in the construction or for want of proper repair. It was an adequate and sufficient switch, so far as the adjustment of the tracks to each other was concerned, and that seemed to be the chief office of a switch. It was a common switch.” In that case it was held error to leave it to a jury to say whether defendant was not guilty of negligence “for not getting a target switch.”

Apparently the court in the case before us went beyond the rules laid down in that and other adjudged cases in the charge as given and the refusals made.

Appellant’s learned counsel cites us to Smith v. N. Y. and H. R. R. R. Co. (19 N. Y., 127), but it does not apply. Selden, J., said: “As between the deceased and defendants no such relation as that of master and servant existed. The question * * * is the same as if deceased had

been a passenger upon the train to which the accident occurred.” That case followed the" rule laid down in Hegeman v. The W. R. R. Co. (16 Barb., 353, and affirmed in 3 Kernan, 9) to the effect that “all inventions and improvements known” to defendant which will contribute materially “to the safety of their passengers, whenever the utility of such improvement has been thoroughly tested and demonstrated,” must be used. Smith v. R. R. Co., supra, p. 133.

The case of Kirkpatrick v. R. R. Co. (19 N. Y., 240) was one where the engine in use was defective and by reason of the defect the explosion took place which killed the fireman, whose representative brought suit. Nor does Pantzar v. Tilley Foster Co. (99 N. Y., 368) apply, as that was a case where a dangerous overhanging rock fell and caused an injury, and was clearly a case of want of ordinary care and prudence on the part of the master.

Stringham v. Stewart (100 N. Y., 516) was a case of a dangerous and defective machine, or an elevator which fell for want of. proper safety appliances while being operated by the plaintiff.

Probst v. Delamater (100 N. Y., 266) was a case where a cable used to haul in connection with a derrick and there was an injury, and the jury found, that the cable was not safe and secure, and there was no evidence of any care in selecting the cable, and a verdict was, therefore, sustained in favor of plaintiff.

In Ellis v. The N. Y. and E. R. R. Co. (95 N. Y., 546) the buffers were defective and failed to perform the duty which they were provided for, and, therefore, a recovery was sustained. That case was distinguished by Danforth, J., from Salters v. D. and H. C. Co., supra.

Employers are not bound to insure against accidents.. “In the case of employers they are only obliged to provide appliances which are safe so long as used without negligence. The employee takes the risk .of danger from negligence of his co-employee.” Burke v. Witherbee, 98 N. Y., 562; Rummell v. Dilworth, 3 East. Rep., 820; Salters v. D. and H. C. Co., supra; Piper v. R. R. Co., 1 T. & Cook, 290.

In the case last cited, Boardman, J., remarked, viz.: “If a common switch is properly cared for it is as safe as any other.” See also Bajus v. S. B. and N. Y. R. R. Co., 25 Wk. Dig., 5; Randall v. B. and O. R. R. Co., 109 U. S., 478; Sammon v. The Central, 62 N. Y., 255; Gage v. D., L. and W. R. R. Co., 14 Hun, 447.

Between employer and employee the law does not require the safest appliances or instruments, nor does it fix a liability upon the employer “for the failure to discard” those which are not safest for every exceptional exigency. Thompson on Neg., 9S3.

It may not be left to the jury to say what switches, what patented article or contrivance shall be used by a railroad company in order to escape liability from injury to an employee caused by the negligence of a co-employee.

A new trial should be ordered.

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

Boardman and Eollett, JJ., concur.