author: SMITH, P. J.:

text:
    THOMAS C. SIMONTON, JOSEPH E. TODD and MICHAEL MOSS, Appellants, v. FREDERICK P. HAYS, ADAM DAVIS and MANLY CROSBY, Respondents.

      State tax sale — notice to redeem — -must comply strictly with the requirements of the statute —1855, chap. 437, sec. 18.
    Where a notice to redeem lands from a State tax sale fails to state that unless the lands are redeemed by a day therein named they will be conveyed to the purchaser, the notice is insufficient and no title will pass under a deed thereof subsequently executed by the comptroller.
    Appeal from a judgment in favor of the defendants, entered on a decision rendered at the Cattaraugus Circuit on a trial by the court without a jury.

      D. H. Bolles, for the appellants.

      Phelps da Eaton, for the respondents.
   SMITH, P. J.:

Ejectment: The plaintiffs claim title under a deed executed by the comptroller to one Post upon a sale for non-payment of taxes. The only question is as to the sufficiency of the notice to redeem. The sale took place in November, 1859, and the publication of the notice was begun in March, 1861. The statute, in pursuance of which the notice was published, requires that the notice for each county shall specify particularly every parcel of land in such county remaining unredeemed, and the amount necessary to redeem the same, calculated to the last day on which such redemption can be made, and stating that unless such lands are redeemed by a certain day they will be conveyed to the purchaser. (Laws 1855, chap. 427, § 61.) The notice in this instance complied with the statute in all respects, except that it did not contain the last-statement above specified, namely, that unless such lands were redeemed by a certain day they would be conveyed to the purchaser.

The trial judge held that by reason of such omission, the notice did not comply with the statute, and consequently that the Comptroller’s deed was ineffectual and conveyed no title or estate, and on that ground he ordered that the complaint be dismissed.

The learned counsel for the appellants has submitted to us an ingenious argument in support of the proposition that the notice, although not a literal compliance with the statute, complies with it substantially, and fully answers its purpose and demands. The notice was in the following words :

“COMPTROLLER’S OFFICE,

“Albany, March 20, 1861.

“Notice is hereby given pursuant to title 2, chapter 427 of the Laws of 1865 ” (so in the appeal book), “that at the sale above mentioned which closed on the 28th day of November, 1859, the following described lots, pieces and parcels of land, situate in the county of Cattaraugus, were sold for arrears of taxes due theron, and which remain unredeemed, and that the payment into the treasury of this state of the sum set opposite each lot, piece or parcel of land, will be required to redeem the same respectively, at the expiration of the time for the redemption thereof, which will be on the 28th day of November, 1861.

(Signed) “BOBERT DENNISON,

“ Comptroller.”

The argument of the learned counsel is that the notice, as published, contained everything that it was important or necessary for the owner to know in order to protect his rights.

But we are not at liberty to speculate as to what would be understood from' the notice in its imperfect form. The legislature have seen fit to declare specifically what the notice shall contain, and the proceeding to divest a landowner of his title for the non-payment of taxes is one in which the requirements of law must be strictly observed. The law-makers have indicated that in their judgment it is necessary for the protection of the owner that the notice should contain all the specifications pointed out by the statute, and the courts cannot, by a rule of their, own, dispense with any of those requirements. The notice, in the form in which it was published, could not have informed the delinquent owner that unless he redeemed by the day named, his land would be conveyed to another, unless he was familiar with the provisions of the tax laws, and if he was, he may well have supposed from the omission in the notice, that such result would not follow in the present case.

We concur in the views expressed on this subject by the presiding judge at the circuit, and by Mr. Justice Barrer in the case of Becker v. Holdridge (47 How. Pr.. 429).

The judgment should be affirmed. •

Hardin and Barrer, JJ., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Smith, P. J.;

license: Public Domain

text:
    THE SENECA NATION OF INDIANS, Respondent, v. IRA HAWLEY, Appellant.

      Coats — when coats paid m pursuance of an order cannot he taxed by the prn'ty paying them after the recovery of a judgment by him,
    At the trial the defendant was allowed upon his own motion to amend his answer upon paying to the plaintiff the costs after, notice of trial, including fees for the terms the case had been upon the calendar.' These costs were paid, the answer amended, and thereafter a verdict rendered in favor of the defendant which entitled him to costs.

      Held, that he could not include in his costs, the costs already paid to the plaintiff in pursuance of the said order.

      Ravemeyer v. Ravemeyer (63 How., 476) distinguished; Donovan v. The Boa/rd of Education (1 Civil Pro. B., 311, note) overruled.
    Appeal from an order of the Cattaraugus Special Term denying a motion for a retaxation of costs.

      Allen <& Thrasher, for the appellant.

      B. F. Gongdon, for the- respondent.
   Smith, P. J.;

At the trial the defendant was permitted on his own motion to amend his answer, on payment of plaintiff’s costs accrued after the original answer was served. Those costs being the costs after notice of trial, and the term fees for the terms at which the case had been on the calendar, were paid accordingly by the defendant to the plaintiff and the answer was amended. Subsequently the cause was tried and a verdict was rendered which entitled the defendant to costs. He included in his bill the same term fees and costs, after notice,of trial, which he had paid as a condition of his leave to amend. The clerk disallowed those items on taxation and his action was affirmed by the Special Term.

The disallowance was proper. The items in question, were finally disposed of by the order allowing the defendant to amend, he haring availed himself of the privilege granted by the order. The order was an adjudication that the items covered by it belonged to the plaintiff. They could not be again taxed in favor of either party. (Provost v. Farrell, 13 Hun, 303.) The cases of Havemeyer v. Havemeyer (62 How., 476) and Donovan v. The Board of Education (1 Civil Pro. R., 311, note) are cited by the appellant’s counsel. The first of them was disposed of upon facts peculiar to itself, which do not exist in this case. We are not prepared to concur with the case of Donovan (decided at a Special Term of the New York Superior Court) so far as it conflicts with the views above expressed.

Order affirmed, with ten dollars costs and disbursements.

Hardin and Baekke, JJ., concurred.

So ordered.


text:
    In the Matter of the Petition of the BUFFALO, NEW YORK AND PHILADELPHIA RAILROAD COMPANY, Appellant, for the Appointment of Commissioners to Appraise Lands of GEORGE S. McINTOSH, Respondent.

      The second report of raik’oad commissioners — may be set aside for fraud'or the misconduct of the commissioners —1850, chap. 140, sec. 18- — what improper acts on the part of the commissioners will require the report to be set aside.

    The provision contained in section 18 of chapter 140 of 1850, to the effect that the second report of commissioners appointed to appraise the damages to he paid for land taken for railroad purposes shall be final and conclusive, does not prevent the court from inquiring into the fairness' and regularity of the proceedings before the commissioners, and from setting aside their report for fraud or misconduct.
    The second report of commissioners was set aside in this case, because of their improper conduct in going upon the lands tobe taken, in company with the landowner and his attorney, and there examining a map produced by the former and listening to his explanation thereof, in the absence of the agent of the company, and its attorney, who were then, to the knowledge of the commissioners, on their way to meet the commissioners and view the premises. It appeared that one of the commissioners in this case rode from a’village to the farm to be viewed,with, and in a carriage provided by, tbe landowner; that one of them then took supper at the latter’s house and was sent home in a carriage furnished by him, and that another accepted from the landowner a sum of money for his services and expenses, in excess of the amount allowed by statute, and which was understood to be so at the time.

      Reid, that such conduct was improper and required the report to be set aside.
    Appeal by tbe petitioner from an order of tbe Erie Special Term, denying a motion to set aside tbe report of tbe commissioners herein awarding to tbe respondent tbe sum of $1,000 damages for tbe right of way through bis lands.

      Ansley (& Davie, for tbe appellant.

      George FI. Phelps, for tbe respondent.
   SMITH, P. J.:

Tbe report which the petitioner seeks to set aside is tbe second report of. commissioners in this cause, a former report having been set aside by the court. Tbe statute under which the proceedings were bad provides that the second report shall be final and conclusive. (Laws 1850, chap. 140, § 18.) But that provision does not preclude the court from inquiring into the fairness and regularity of the proceedings before the commissioners and from setting aside their report for fraud or misconduct. (In the Matter of the Application of the Prospect Park and Coney Island R. R. Co., 20 Hun, 134; In the Matter of the Application of the same Company, 24 id., 199.)

It appears from the papers before us that the respondent’s premises, upon which the company seeks to obtain a right of way, consist of a farm of 500 acres situated about five miles from the village of Allegany in the county of Cattaraugus. On the day when the commissioners viewed the premises they met at the village of Alle-gany and went from there to the farm in a carriage with the landowner, his counsel and a driver. When they left the village, the attorney of the company and Mr. Adams, an agent of the company, who had been employed in getting the right of way, were there and were intending to go to the farm to attend the commissioners while viewing the premises, but by reason of delay in getting a conveyance they did not start till some time after the other party bad left. The parties differ somewhat as to the interval that elapsed after the departure of the first carriage before the second started, it appearing bj the affidavit’s of those representing the company, that they were about half an hour behind the others, while the respondent states in his affidavit that the carriage containing Mr. Adams and his party was but little behind his own. But however that may be, all the witnesses agree that immediately .on the arrival of the first carriage at the farm the owner of the land, without waiting for the other party to come up, began to point out to the commissioners the exterior lines and boundaries of his farm; produced, at the request of his counsel, a map of the same, which he had prepared, spread it out before the commissioners, and, to use his own words, “ began to call the attention of the parties present to the same, and the shape and general lay of such of the land comprising the farm as was not visible from that point.” That the map thus exhibited was not conceded by the opposite party to be correct, is shown by the fact that on his arrival Mr. Adams produced another map, and some dispute then occurred. And that what took place before the arrival of the second carriage was not without its. effect upon the minds of the commissioners, is to be inferred from the fact that very soon after the second carriage came up the commissioners expressed themselves as having seen sufficient and were ready to return; although upon being urged, they did go upon the rear of the farm and make further examination. It is apparent from the affidavits that the respondent and the commissioners knew that Mr. Adams and his party were on their way.to the farm, and might be expected to arrive soon. In these circumstances we think it was irregular on the part of the commissioners to proceed to a view of the farm under the guidance of the landowner, and in doing so to, examine his map and to listen to what he chose to say on the subject in the absence of the representatives of the railroad company. The view was a part of the duty enjoined upon the commissioners by the statute for the purpose of informing themselves upon the question they were to decide. It was a judicial duty, to be performed fairly and with equal regard to the rights of both parties. Whatever they permitted one party to say to them in regard to it, while they were engaged in the performance of it, or in regard to the case, the other party should have been permitted to hear and to make pertinent reply to.

The case is not that of a hearing'of one party only by default of his opponent. The company did not make default, and - it’ was not-treated by the commissioners as being in default. As has been said, it was known- that their attorney and agent were on the way, and might be expected to arrive soon, and when they came they were heard. The. irregularity was that the hearing was begun before they arrived, and as it is impossible to say that what then took place did not affect the minds of the commissioners, the irregularity is fatal to the report.

In several other respects, there' was conduct on the part of the commissioners or some of them which, although doubtless prompted by no wrong, motive, ought to have been avoided, and cannot be approved. The statute provided a compensation for the services and expenses of commissioners while engaged in the discharge of their duties. That being the case, they ought not to accept gratuities from either party, by way of relief from the expenses to which they are necessarily subjected. It appears that- in this case the commissioners rode from the village to the farm in a carriage provided by the landowner; one of them took supper at the landowner’s house, and was then sent to his own home in a carriage which the landowner furnished ; and another, after the report was signed, accepted from the landowner a sum of money for his services and expenses, in excess of the amount allowed by statute and which was understood to be so at the time. The acts referred to probably had no effect upon the result in the present case, but it will not do to make a precedent of them, for if such practices were to become common, it would be easy for designing men to make them a cover for corruption.

On the whole we think the order of the Special Term should be reversed, the report set aside, and the case sent to other commissioners to be appointed on motion at Special Term, with ten dollars costs and disbursements.

ÍÍARDiN and BARKER, JJ., concurred.

So' ordered.


author: .Smith, P. J.: HaudiN, J.:

text:
    JACOB FALKEL, Respondent, v. GEORGE MOORE and WILLIAM MOORE, Appellants.

      Action in a Justice's Court — plea of title — when it is rendered necessary by the form of the complaint — the party recovering upon this issue is entitled to the costs.

      A plea of title haying been interposed in an action brought in a Justice’s Court, this action was thereafter brought in the Supreme Court, and the issues therein were tried before a referee. The complaint alleged that the defendants "wrongfully broke, tore down and destroyed,” a large quantity of fence erected and standing on land of which the plaintiff was in possession. The answer contained a general denial, and then admitted the plaintiff’s possession and set up as a further defense that the fence was taken down by virtue of a right of way which the defendants had over the plaintiff’s lands at the place in question; the defendants being bound to keep the gates or bars in the fences closed after passing through. The referee found that the defendants had the right of way; that on the occasion in question they found the road closed by a rail fence wired together; that they took down a length of fence, removed the rails to the side of the road, and there left them in a pile. He also found that they had unreasonably left the fence open and neglected to close it after they had passed through, and directed a judgment for the plaintiff for twelve cents damages.

      Held, that as the plaintiff had by the form of his complaint rendered it necessary for the defendants to allege and prove their right to take down the fence, and as the defendants had succeeded upon this issue, they were entitled to the costs of the action.
    Appeal from an order of Wyoming Special Term, denying the defendants’ motion for a retaxation of costs.
    An action was commenced in a Justice’s Court in which the defendants interposed a plea of title. This action was then commenced in the Supreme Court. Upon a reference of the issues, a judgment, for twelve cents was directed in favor of the plaintiff. Costs were taxed in favor of the plaintiff.

      M. E. do E. M. Bartlett, for the appellants.

      Robert Snow, for the respondent.
   .Smith, P. J.:

The plaintiff complained that the defendants “ wrongfully broke, tore down and destroyed ” a large quantity of fence erected and standing on land, of which plaintiff was in possession.

The defendants pleaded, first, setting up a general denial, and, secondly, admitting the plaintiff’s possession of the land and alleging that they had a right of way across said land, they to keep the gates or bars of the fences closed when they shall have passed through; that on the occasion mentioned in the complaint they did pass over said land, when they had said right of way, until they found .their passage wrongfully obstructed by a fence, which they quietly removed, doing no unnecessary damage and removing no more than was necessary to admit of their passage.

The referee by whom the case was tried found the right of way in the defendants as alleged in the answer, and that at a certain point in said way on the land of which the plaintiff was in possession was a fence, the rails of one length of which were so laid up that they could be easily removed without injury to the remainder of the fence, and so as when removed to furnish a convenient passage way for teams and wagons. That on the occasion in question,, the defendants were returning home in a carriage by said way, and on reaching said length of fence they found two wires had been stretched along lengthwise of said rails by the plaintiff, and some of the rails of said length were wired to the adjoining posts ; the defendants thereupon got out of their carriage and opened and took down the length of fence and removed the rails to the north of said length of fence, and threw them in a pile on the ground and left them there. lie found that they unnecessarily left said fence down and the rails in a pile, and did not close the fence. He also found that they acted “ unreasonably and wrongfully in so opening and taking down said length of fence and removing the rails thereof, and leaving said fence open and down and said rails on the ground, and not closing the fence, nor keeping it closed when they had passed through,” and he held that by reason of the premises the plaintiff had sustained damages to the amount of twelve cents.

Taking the whole report together it is apparent the finding that the conduct of the defendants was unreasonable and wrongful, was not intended to apply to the act of “ opening and taking down said length of fence and removing the rails thereof,” since the referee distinctly found that the defendant had the right so to do in the exercise of his right of way; the unreasonable and wrongful act was in leaving the fence open and the rails on the ground, it having been the duty of the defendants to close the fence on passing through.

The plaintiff recovered upon a cause of action not' alleged in his complaint. He declared for wrongfully breaking, tearing down and destroying bis fence; he recovered against the defendant for simply leaving down a fence which he had a right to take down, and no breaking or destruction of the fence, or any part thereof, was found.

If the plaintiff had declared simply for the cause of action found -by the referee, to wit, that the defendants in passing over the plaintiff’s land wrongfully left down the fence in violation of the conditions on which their easement was granted to them, no plea of title would have been necessary or proper and the cause might have been tried before the justice. But the averment in the complaint that the defendants wrongfully tore down the fence compelled them to plead their right of way, for without that defense they would have been liable to a recovery for merely taking down the fence. It is immaterial that the complaint does not allege- a wrongful entry; it alleges a trespass to real estate, making the plea of title necessary. The recovery ” spoken of in section 3235 of the present Code must be a recovery upon the issue of title. Upon the issue tendered by the plea of title the defendants have succeeded. The case seems to be within the rule laid down in Learn v. Currier (15 Hun, 185; S. C. affirmed, 76 N. Y., 625); see, also, Burhans v. Tibbits (7 How., 74); Morss v. Salisbury (35 How., 90; S. C. affirmed, 48 N. Y., 636).

If these views are correct the order appealed from should be reversed, a retaxation ordered, and the taxing officer directed to adjust costs in favor of the defendants.

HaudiN, J.:

Which party is entitled to costs, is the question involved in the appeal before us. Plaintiff in his complaint alleges that he is in possession of certain lands, in the town of Warsaw, being part of lot thirty-one, and describes them, and then avers, viz.: While plaintiff was in possession of said lands as aforesaid, defendants wrongfully broke, tore down and destroyed a large quantity of fence erected and standing upon said lands of the plaintiff, the same being for the use and enjoyment thereof, to plaintiff’s damage fifty dollars.” Defendants answered, viz.: (1.) By denying all the allegations of the complaint. (2.) By admitting that the plaintiff was in possession of the lands described in the complaint alleged.” (3.) They admit about the time alleged they broke and tore down a quantity of fence, then being and standing upon the premises of said Falkel.” (4.) They then allege that in November, 1874, one Keeney was the owner of the premises described in the complaint, and that he sold, and conveyed by deed, lands therein described, to the defendant Moore with a grant in the following words, viz.: The said party of the second part is hereby granted permission to cross the lands of the party of the first part, along by John Brown’s north line, mid he shall keep the gates or bars of the fences closed when he shall have passed through,” and that the premises described in the complaint; are the same of which the jfiaintiff is in possession “ subject, however, to the said right of way of the defendant George-Moore; ” that they become by deed entitled to pass over said premises, and that they did pass over the lands “ until they found their passage wrongfully obstructed by a fence which they quietly removed, doing no unnecessary damage, and- removing no more than was necessary to admit of their egress from said lands.”

The referee found as follows : The defendant George Moore went with his horse and carriage from his house on said piece of land east of said railroad, west down said lane on the north line of John Brown’s land into the highway, and the defendants George Moore and William Moore, in the forenoon of the same day were in said carriage returning to the house of said George Moore, and on reaching said length of fence next to the said highway, and joining said Brown’s line fence on the north, found two wires which had been stretched along lengthwise of said rails of the plaintiff, and some of the rails of said length of fence were wired to posts that stood at the end of said length of fence and found the rails of said fence and said fence laid up as aforesaid. And the said defendant got out of said carriage and opened and took down said length of fence, and removed the rails thereof, north of the length of said rails, and threw them in a pile on the ground, and left said fence open and down, and said length of fence removed, and said rails in a pile as aforesaid, and went with the said carriage of said Moore to his house about forty rods from the place designated in said clause in said deed from Keeney and wife to George Moore, over which said Moore was granted permission to cross by said deed. That the said defendants unnecessarily left said fence down, and said rails in a pile, and did not close the fence when they had passed through with their horse and carriage, nor as was required of said G-eorge Moore. That the defendants acted unreasonably and. wrongfully in so opening and taking down said length of fence, and removing the rails thereof, and leaving said fence open and down, and said rails on the ground as aforesaid, and not closing the fence, nor keeping said fence closed when they had passed through the lane as aforesaid.

He also found'as a conclusion of law, viz.: “ That by reason of the premises as aforesaid, the plaintiff has sustained damages of twelve cents. And I find and decide as conclusion of law, the plaintiff is entitled to recover of the defendants the sum of twelve cents, and I order and direct judgment herein be entered accordingly.”

By an inspection of the defendants’ answer, it is clear that the defendants attempted to, and actually did set up a justification of the breaking and tearing down, and destroying of the fence referred to in the plaintiff’s complaint. They plead a right under the grant of an easement to do the very things mentioned by the plaintiff in his complaint. They failed to sustain their justification, as the referee found that the defendants acted unreasonably and wrongfully in so opening and taking down the said length of fence, and removing the rails thereof and leaving the said fence open and down, and said rails on the ground as afmwsaid, and not closing the fence nor keeping said fence closed when the defendant had passed through the lane as aforesaid:

By section 3235 of the Code of Civil Procedure it is provided, viz.: “ The party in whose favor final judgment is rendered in the new action, is entitled to costs; except that where final judgment is rendered therein in favor of the defendant upon the trial of an issue of fact, the plaintiff is entitled to costs, unless it is certified that the title to real property came in question on the trial.

The section is substantially the same as section 61 in the Code of Procedure, and that section was construed in Burhans v. Tibbits (7 How. Pr., 74). This case is wholly unlike Shull v. Green (reported in 49 of Barb., 311). In that case there were several trespasses upon certain lands of the plaintiff, and the defendant interposed a plea of title as to a portion of the lands only, and it was held in such a case that the justice might proceed and try the trespasses on tliat part of the land to which no title was pleaded. In that case after the action was wholly discontinued a fresh action was commenced in this court, and recovery of less than fifty dollars for trespasses upon the lands, upon that portion of the lands as to which there was no plea of title, and it was properly held that the defendant instead of the plaintiff was entitled to costs.

The case of Learn v. Currier (15 Hun, 185 ; S. C. affirmed, 76 N. Y., 625), is somewhat like the one now before us, although that was an actio.n brought in the Supreme Court and governed by section 304 of the old Code. There it was held the plaintiff could not recover costs because lie had not recovered upon a cause of action upon which a claim of title to real property came in question. This case bears some resemblance to Hall v. Hodskins (30 How., 15), in which case the plaintiff was allowed to recover costs. (See, also, Kelly v. The New York and Manhattan Beach Railroad Co., 19 Hun, 363.) In Learn v. Carriers (15 Hun, 188), it was said “ the acts for which the plaintiff recovered were not acts of entry.” * *. * And page 187: “If the plaintiff had set out in his complaint the real cause of action for which he recovered, to wit, that the defendant in repairing the highway as an overseer, wrongfully diverted the water from the channel in which it was accustomed to flow upon the plaintiff’s lands adjoining the highway, a mere denial would have been the only defense needed; no question of title would have arisen (Rathbone v. McConnel, 21 N. Y., 466), and the defendant would be entitled to costs in case the plaintiff recovered less that fifty dollars.”

Applying the same criticism here, it may be said the plaintiff might have framed the complaint so as to present the question narrowly in issue between the parties, viz., “ whether the defendants had reasonably used the right of way or not.” Following the doctrine of Learn v. Carrier (supra), we hold that the defendants, and not the plaintiffs, are entitled to costs. (See, also, Morss v. Salsbury, 35 How., 90; S. C. affirmed, 48 N. Y., 636).

The order should be reversed, with ten dollars costs and disbursements, and’motion for retaxation granted.

Present — Smith, P. J., and HardiN, J.; Barrer, J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion for retaxation granted.


author: Smith, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN CASHMAN, Appellant, v. THOMAS P. HEDDON, ELI TAYLOR and JOHN B. CROSBY, Referees, etc., Respondents.

      Laying out a primate road — appeal from, the decision of the commissioners of highways— presumption in favor of regularity —upon the hearing of a certiorari the record only can be considered — power of the referees appointed by the county judge on such an appeal, to consider the damages of the landowner.

    Upon the hearing of a certiorari to review the decision of referees appointed to hear and decide an appeal from the determination of the trustees of the village of Batavia, acting as commissioners of highways, in laying out a private road, it was claimed that the record did not show that the necessity for laying out the road had been determined hy a jury of freeholders.

      Held, that as the record did not show that this had not been done it was to he presumed, from the fact that the trustees had determined that the road should he laid out, that all the preliminary essential requirements had been complied with.
    That even if this were not so, yet as the referees could only inquire into the “fitness or unfitness ” of laying out the road, the question as to whether or not the trustees had acted without authority, or had exceeded their jurisdiction, was not a subject to be considered hy them.
    No questions can be considered by the court, upon the hearing of a certiorari, to review the decision of such referees, except such as are presented hy the writ and the return, and the papers upon which the writ was granted. The opinion of the referees is no part of the record and their decision cannot he reversed because of errors appearing in such opinion.

      Qpcere, as to whether upon such an appeal from a determination of the commissioners of highways the referees can pass upon the amount of compensation to he allowed to the landowner.
    Ceetioeaei to review tbe decision of referees appointed by the connty judge of Genesee county to hear and determine the appeal brought by the relator from the determination of the trustees of the village of Batavia, as commissioners of highways, laying out a private road across lands of the relator for the use and benefit of Patrick Burke.

      George Bowen, for the relator.

      M. íl. Peelc, Jr., for the respondents.
   Smith, P. J.:

For the relator it is contended that the record does not show that the necessity of the private road in question has been determined by a jury of freeholders, and that laying the road through the orchard of the relator, and taking a portion of the orchard without his consent, was erroneous.

It is a sufficient answer to the first point to say that the record ■does not show that the necessity of the road has not been determined by a jury of freeholders, and that it is to be presumed, from the fact that the trustees acting as commissioners determined that the road .should be laid out, that all the preliminary requirements of the statute essential to the validity of their action had been complied with. Besides the record shows that the proceedings of the jury and the notice of appeal were put in evidence before the referees for the purpose of showing that such proceedings were had in respect to the road in question, and the testimony of several of the witnesses examined before the referees shows that a jury was called in reference to the said road. And we conceive it' to be a perfect answer to both branches of the relator’s contention that the referees could only inquire into the fitness or unfitness ” of laying out the road, and their proceedings in respect to that question are all that can now be reviewed. Upon the assumption that the road was shown to be necessary the referees had nothing to do but to affirm the order of the trustees. The question whether the trastees had proceeded without authority of law, or had exceeded their jurisdiction, was not before the referees, and any decision they might have made of those questions would not have validated or invalidated the action of the trustees. If the trustees acted without jurisdiction any order made by them was a nullity affecting no rights and could be reviewed by common-law certiorari and vacated. These views are sustained, we think, by the case of People ex rel. Hubbard v. Harris (63 N. Y., 391) and the authorities cited by Eael, J. (p. 394).

Upon the merits the testimony before the referees warrants their conclusion, that the road is necessary to give Burke access from hi's residence to a public highway, and their decision on that point 'is conclusive. (1 B. S., 519, § 89; Laws 1847, chap. 455, § 8.)

It is urged by the relator’s counsel that the referees erred in deciding that they had no power to pass upon the question of compensation to the owner of the land. There.is nothing in the record showing that they declined to pass upon that question. The cáse is to be heard on the writ and the return "and the papers on which the writ was granted. (Code of Civil Pro., § 2138.) The opinion of the referees, although very properly printed in order to give the appellate court the benefit of the reasons assigned for the judgment, is no part of the record. (Magie v. Baker, 14 N. Y., 435, per Comstock, J., 438.) An alleged error, which appears only in the opinion of the court below and not in the record, is not ground of reversal. (Laning v. N. Y. C. R. R. Co., 49 N. Y., 521.)

There is much reason too for saying that the referees have nothing to do with the question of damages, except so far as to inquire whether the benefit would equal the expense, and thus consider the question in its bearing upon the necessity of the proposed road. That was the view taken of the question in the case of the Commissioners, etc., v. Meserole (10 Wend., 123), which arose under a special act (Laws 1830, chap. 56), the provisions of which in respect to the powers of commissioners and the reviewing of their orders on appeal were the same, in substance, as those contained in the general road act. Put without passing upon that question it is enough to say that the return does not show that the referees ruled that they had not power to consider the subject of damages.

The order of the referees should be affirmed, with costs, which we fix at fifty dollars.

HakdiN and Bareer, JJ., concurred.

So ordered.


text:
    ALMIRA E. PAGE v. HARRY A. GILBERT, Respondent, and ALMON BENNETT and Others, Appellants.

      Will — gift to several persons — when they taJce as a class, and not as tenants in common.

    A testator, after giving all his estate to his Wife for life, by the second clause of his will provided as follows: “ I give, devise and bequeath to my wards Cande E. and Harry A. Gilbert, now living with me, children of Eliza H. Gilbert, late of Del-avan, Wisconsin, deceased, one undivided half of all my estate, both real and personal, of every kind and name, * * * after the decease of my beloved wife Betsey D. Bennett, to have and to hold the same to the said Cande E. and Harry A. Gilbei’t, tbeir heirs and assigns, from and after the decease of said wife to their use and behoof forever. By the third clause of the will he gave ©ne-balf of the residue to the children of his brothers and sisters, and-the other half to the heirs of his wife’s brothers and sisters, not naming such children or heirs in either case. The will contained no residuary clause. The testator’s wife and Carrie E. Gilbert died before the testator. Carrie E. and Harry A. were not wards of the testator, but were taken by him into his family after the death of his own son and daughter, and continued to live there up to the time of his death.

      Held, that the gift to Carrie E. ■ and Harry A. was intended as a gift to them as a class, and that upon the death of his sister Harry A. took the whole thereof as survivor.
    Appeal from portions of a judgment, entered upon the order and decision of'the Livingston Special Term.
    This action, which was brought to secure a partition of land, involved the construction of the will of Roswell G. Bennett, deceased.

      AdeZbert Moot, for the appellants.

      F. G. Pede, for the respondent.
   Smith, P. J.:

The will of Roswell G. Bennett/late of Nunda, deceased, after giving all his estate to his wife Betsey D. Bennett for life, contained the following clause:

Second. I give, devise and bequeath to my wards Carrie E. and Harry A. Gilbert, now living with me, children of Eliza H. Gilbert, late of Delavan, "Wisconsin, deceased, one undivided half of all my estate, both real and personal, of every kind and name, and all profits, income and advantage that may result therefrom, from, and after the decease of my beloved wife Betsey D. Bennett, to have and to hold the same to the said Carrie E. and Harry A. Gilbert, their heirs and assigns, from and after the decease of said wife, to their use and behoof forever.”

By the third clause of the will the testator divided the other half of his estate into two equal parts, one of which he directed should be divided equally between the children of his brothers and sisters, and the other between the heirs of his wife’s brothers and sisters, in neither case naming such children or heirs.

His wife and Carrie E. Gilbert died before the testator. The question is whether the share of Carrie, under the second clause of the will, lapsed (she having predeceased the testator), and so passed to the heirs-at-law of the testator, or whether it vested in the respondent, Harry A. Gilbert, as her survivor; or, in other words, whether the bequest to the respondent and his sister, in the second clause, was intended as a bequest to them as a class, or as individuals. The case of Hoppock v. Tucker (59 N. Y., 202) is claimed by the counsel on each side to be decisive in his favor. There, as here, there was a description by names, and also a description as children of the deceased relative, or, as ChukCH, Oh. J., characterized it, a double description, antagonistic in legal meaning.” “ The description by names,” said he, is a perfect bequest to them as individuals, while the other description as children of the deceased daughter, standing by itself, is a perfect bequest to them as a class.” And while conceding that the clause which he had under consideration, as it was written, with its double description, free from the influence or control of other portions of the will, would, according to the adjudged cases, be construed as a personal legacy to each child, he nevertheless concluded, in view of other provisions of the will, that the bequest was to the children as a class, and so it was adjudged by the whole court.

The language in Hoppock’s case differed from that we are considering in this: The gift there was to the children, “ in equal proportions, share and share alike but no such expression is contained in the second clause of the will in the present case. Those words are significant only as tending to show that a tenancy in common, and not a joint tenancy, was created among the devisees. But in the case of tenants in common, nothing else appearing to indicate the intention of the testator than that the gift is to them by name, and not as a class, the share of one of them dying before the testator is lapsed. (Downing v. Marshall, 23 N. Y., 366, per Comstock, Ch. J., 373.) But there are other features of this case which lead us to the conclusion that was reached at the Special Term.

1. The legal presumption arising from the fact of making a will that the testator did not intend to leave any part of his estate undis-posed of, is corroborated in this case by clear evidence furnished by several provisions of the will. In repeated instances the testator used the most comprehensive language to embrace all his property of every kind; and so confident was he that he had specifically disposed of his entire estate, that he did not think it necessary to add a residuary clause.

2. It being clearly his intention to dispose of every part of his estate by his will, the fact that he made no alteration in that instrument during his survival of Oarrie E. Gilbert for more than a year-is very persuasive evidence that he supposed that by the terms of the will her share would go to her brother, as survivor, and that he intended that result, for in no other, way could his intention to dispose of his entire estate by the will in question take effect.

3. The fact that the beneficiaries named in the second clause of the will were taken by the testator into his family after the death of his own son and daughter (his only children), and that they, or the survivor of them, continued to live with him till his death, as shown by extrinsic evidence, and the fact that he called them his wards, although he was not their legal guardian, indicate that he intended to treat them as his children, and that as such they should take one-half of his estate with the same effect as if they had been his children in fact. In that cáse the share of the one dying would have vested in the survivor by inheritance.

i. It was not the intention of the testator that his brothers and sisters, who would inherit in case of his intestacy, should take anything under his will, the gift of one-fourth of the’ estate being to their children and not to themselves.

5. It was clearly the intention of the testator that the collateral relatives of his wife should have a share of his estate equal to that of his own collateral relatives, but that intention is inconsistent with the idea that he intended that the share of either of the beneficiaries named in the second clause dying before himself should go to his heirs-at-law.

6. If the gift in the second clause had been merely to the “ children of Eliza A. Gilbert,” they would have taken as a class within all the authorities; but in that case her three children would have taken, and as the testator did not intend that it was necessary to designate the two intended beneficiaries, and for that purpose they were named. The use of their names for that purpose does not, in our opinion, overcome the evidence already pointed out of' the intention to treat them as, a class. Describing them as “ my wards now living with me ” was not an accurate and certain designation, for they were no more his wards in a legal sense than was the'third child of Eliza A. Gilbert, and it was not certain whether an}*-, or all, or which of the three children would be living with the testator at the time of his death, at which time the will would speak.

7. The will was drawn by the testator, inops consilii / and it is not' to be supposed he was acquainted with the technical signification and effect of a gift to several persons, nominatum. The fact that in the third clause he did not name the children of his brothers and sisters and of the brothers and sisters of his wife, including the same Eliza A. Gilbert, may well be accounted for upon the supposition that he did not know the names of all or many of said children, in view of the evidence in the case as to their numbers, and the scattered and distant residences of several of them, and therefore he treated them all alike, and named none of them. In these circumstances it is a more reasonable and practical view of the ease, to assume that the mode of designation employed by the testator in the third clause was adopted 'as a matter of necessity, or convenience,' rather than to conclude that he intended thereby a gift so essentially different in its nature from that contained in the second clause, as is contended for by the appellants.

On the whole, we are of the opinion that in this case, as in Hoppock v. Tucker, the bequest in question was intended as a gift to the beneficiaries therein named, as a class, and not as individuals and that the specification of their names must be subordinated to that intent.” (See, also, Ferrer v. Pyne, 81 N. Y., 281, and cases there cited by Danforth, J.)

The judgment appealed from should be affirmed, with costs.

HardiN and Bakjcek, JJ., 'concurred.

So ordered.


author: HaediN, J.:

text:
    JAMES D. FERGUSON, Respondent, v. THE MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Right of a creditor to take out a policy of insurance upon the life of Ms debtor — Ms right to recover the amount of the policy is not affected by the subsequent payment of the debt — estoppel — when a company is estopped from setting up a breach of warranty.

    Where a creditor acting in his own behalf, and not under an agreement with, or as the agent of the debtor, procures a policy of insurance to be issued upon the life of the latter, to an amount not exceeding the then existing debt of the latter .to him, and himself pays the premiums falling due thereon up to the time of the debtor’s death, his right to recover the amount named in the policy is not afEected by the fact that the debt has, prior to that time, been partially or fully paid, or that the debtor has received a discharge in bankruptcy.
    A policy of insurance upon the life of the plaintiff’s brother was issued by the defendant to the plaintiff in January, 1870. In 1871 the company commenced an action to have the policy canceled and declared void on the ground that it was procured by false and fraudulent statements made by the present plaintiff in ,liis application for the policy. In that action the company was defeated. It was claimed by the plaintifE, upon the trial of the present action, that after the decision of the former action he had an interview with the defendant’s agent, in which he was assured by the agent that there would be no more trouble, and that when his brother died the plaintiff would get the amount named in the policy, and that relying upon this assurance, he had paid the subsequent premiums.

      Held, that if the jury found this statement to be true, and that the company at the time of making it had knowledge of the facts which were alleged to constitute the breach of warranty, it was estopped thereby from disputing the validity of the policy in this action.
    Appeal from a judgment, entered in Oneida county, and also from an order denying a motion for a new trial'made upon the minutes of the justice before whom the action was tried, after a verdict rendered for the plaintiff.
    The action was brought upon a policy of life insurance issued by the defendant in January, 1870, upon the life of Amps S. Ferguson, a brother of the plaintiff. The plaintiff, at the time the policy of insurance was issued, was with John W. Bridenbecker, a joint-indorser for his brother Amos for about $6,000.
    The defendant’s answer, besides a general denial, alleges fraud, breaches of warranty, misrepresentation and concealment of known and material facts in the application; a total want of insurable interest prior to, and at, and after the issuing of the policy, and set up a counter-claim to a part of the plaintiff’s claim. The defendant admitted its incorporation and the issuing of the policy for $5,000; the death of Amos S. Ferguson and the delivery of the proofs of his- death, as alleged in the complaint. The trial judge assumed to rule on the question of the effect of a discharge in bankruptcy, the same as though the answer had averred a discharge in bankruptcy •of the plaintiff’s debt. The plaintiff in his reply alleged that in 1871, the defendant brought an action in this court to have declared void, delivered up and canceled, the said policy of insurance, upon the grounds and for the reasons substantially set up in the defendant’s answer in this action, and that such action was triéd and judgment rendered in favor of the plaintiff here, who was defendant in that action, and after the judgment the defendant here acquiesced in the same and demanded and received the premiums on said policy down to the death of Amos S. Ferguson, and that by reason of such judgment and of the receipt of premiums, the defendant is estopped from denying the validity of the policy, and from attempting to prove the defenses set up in the answer herein. This action was brought to a trial in May, 1878, and resulted in a verdict directed for plaintiff. An appeal was taken to this court and the judgment reversed. (See 22 Hun, 320.) Upon the trial now brought up for review the principal question litigated were whether or not, at the time the policy was issued, Amos S. Ferguson was indebted to the plaintiff in the sum of $500, and (second) the alleged breaches of warranty as to the health of Amos; whether or not he had “ disease -of the heart,” or “palpitation,” and whether or not the answer to one of the questions was evasive and untrue. Conflicting evidence on the latter question was given, and the trial judge submitted the question of fact to the jury.. A verdict was rendered for the plaintiff for the amount of the policy and interest, less the set-off allowed for $5,408.37, and judgment was entered for $6,011.43.
    March 23, 1867, Amos S. Ferguson made his note for $6,000 to the order of the plaintiff and John W. Bridenbeeker, and they indorsed it for the accommodation of the maker. It was protested at maturity and the plaintiff took it up by paying it to the National Mohawk Valley Bank. The plaintiff become the owner of the note, and held it when the policy was issued in January, 1870, and the plaintiff at that time also held a debt against Amos for $419.37. March 27, 1868, the plaintiff and Bridenbecker recovered" a judgment for $6,464.64 against Amos S. Ferguson on the indebtedness of $6,000, as aforesaid. Amos S. Ferguson died on the 15th of May, 1877.
    In the application for the policy, which was made and dated January 27, 1870, the plaintiff declared that he had an interest in the life of Amos S. Ferguson, “to the full amount of the said sum of five thousand dollars.” The annual premium was $206.50, and the plaintiff produced receipts therefor up to the time of the death, which premiums were paid by him. The court held that if the plaintiff had “ an insurable interest at the issuing of the policy, that is sufficient.” The defendant excepted. The defendant offered to show “ that at the time of the death the plaintiff had no insurable interest.” The offer was objected to and excluded, and the defendant excepted. The defendant offered in evidence the discharge of Amos S. Ferguson in bankruptcy, dated the 28th day of April, 1868; this was objected to as immaterial, and on the ground that the discharges was not pleaded. The court sustained the objections, and the defendant excepted.
    At the close of the evidence the defendant moved for a nonsuit upon the grounds, First. There was breach of warranty as to the health of Amos S. Ferguson. Second. That plaintiff had no insurable interest in the life of Amos S. Ferguson, “ either at the time the policy was issued, or at the time of his death;” it also offered to return the premiums. The motion was denied and the defendant excepted
    The court then ruled and decided that under the policy the plaintiff must have had an insurable interest of $5,000 when the policy was issued, and that the jury must so find; if his insurable interest was less than that sum, the policy would be vitiated. The case was submitted to the jury.

      Alexander Coburn and Spriggs & Mathews, for the appellant.

      Francis Fernán, for the respondent.
   HaediN, J.:

First. Whether the plaintiff as a creditor was interested in the life ■of Amos S. Ferguson in January, 1870, or not, was made a question of fact by the conflicting evidence upon the trial, and we think the evidence warranted the court in submitting that question to the jury. The trial judge laid down the law correctly in that regard, when he told the jury that the plaintiff could not recover if he did not have that interest in the life of Amos, when in January, 1870, the policy was issued. Defendant had given some evidence tending to show some arrangement in 1866, when Amos sold his farm and took back a mortgage for $4,000. Plaintiff as a witness testified ■that no compromise or settlement was made, and the mortgage was turned over as a collateral to the indebtedness, and by him held as such until its payment, which did not occur until after the policy was issued. We do not feel at liberty to disturb the verdict upon that question of fact. Plaintiff produced a note for $6,000 dated March 23, 1867, made by Amos S., and gave the history of it, and ■also testified' to a balance due upon an account of $519.37, and ¡stoutly maintained that such items of indebtedness were held and owned by him when the policy was issued. Against that kind of ■evidence stood the evidence of Charles Ferguson, to the effect that in 1866 he purchased of his father Amos his farm for $4,000 over the incumbrances, and gave his notes for such $4,000, and a mortgage to secure them, to pridenbecker in full satisfaction and payment.

The judgment in 1868 was then produced by plaintiff, and he ■disputed flatly what Charles said as to an adjustment and satisfaction. We do not feel persuaded that the verdict is against the weight of the evidence on this branch of the case. We therefore shall assume, as the verdict finds, that the plaintiff had an interest in Amos life of $5,000, when the policy was applied for and issued.

Second. We now come to the questions made at the trial, as to the >effect of a pai-tial payment of the indebtedness in the lifetime of Amos, to the effect of his discharge in bankruptcy, and to the effect of an .actual payment of the indebtedness in the lifetime of Amos, and to the ■position of defendant that the plaintiff cannot recover if he did not at the time of the death of Amos have an insurable interest in the life of Amos. It is insisted in behalf of the defendant that on a former appeal (22 Hun,'325) the latter branch of the position was determined by the court in favor of the position of defendant. We do not think so; though it must be admitted that such a dictum appears in the opinion of Presiding Justice Talcott, who spoke for the court on that occasion. The cases referred to by him in connection with that dictum do not bear out the expression. He referred to Shotwell v. Jefferson Insurance Company (5 Bos., 247); Murdock v. Chenango Insurance Company (2 N. Y., 210); Fowler v. New York Insurance Company (26 id., 422); Freeman v. Fulton Fire Insurance Company (14 Abb., 398); Mutual Life Insurance Company v. Wager (27 Barb., 359).

They were cases relating to fire insurance policies, and do not at all support the dictum as applied to this case. That the question now here was not decided by the court in the former appeal, appears by a careful examination of the presiding justice’s opinion. Towards the close of it he says, viz : “We think the verdict was erroneously directed for the reason that the judgment in the former action was received as an absolute bar, and an estoppel against the defendant’s defense, not only of a want of interest in the plaintiff in the life insured by the policy, but also as a bm- to the defense of a breach of warranty.

But in so holding we do not mean to be understood as deciding but what the subsequent payment and receipt of the premiums, with notice to the company of the facts which are set up as breaches of the warranties, may have estopped it from setting up those defenses ¡: but only that the verdict was directed on erroneous grounds,, and because there may be questions of fact as well as law to be disposed of on another trial.”

We are at liberty to consider as open for decision in this court, the questions which we have alluded to, relating to the question of plaintiff’s interest in the life of Amos, when the death occurred. In considei’ing this question it must be borne in mind that the premiums were all paid by the plaintiff with his own money, and that he was in no sense acting for Amos in such payments. Tie had no right to charge them to Amos, nor did he attempt to do so. Plaintiff’s application for the policy was independent of Amos. It was bargained for by plaintiff, without any agreement whatever with Amos in regard to it. It is inferable that the plaintiff paid in premiums just as much as the defendant would have charged Amos for a policy on his own life. In either case it is the usual practice of insurance companies to fix the amount of premium to be exacted,, in reliance upon tables made up by considering the probabilities of the duration of the life upon which the policy runs. Besides, the stipulations of the policy have no reference to the creditor’s claim upon the debtor. The policy is not in terms made collateral to the creditor’s debt, as is the case in respect to fire insurance policies. But it contains an absolute contract to pay a stated sum upon the happening of a specified event, namely, the close of the life named in the policy.

There being a debt at the time the policy is issued, it is then valid. It contains no condition referring to the continuance of the indebtedness. But, on the contrary, the policy evidences a flat and positive promise to pay a given sum at the termination of the life named. Death removes the last condition precedent except, perhaps, the delivery of proofs of the death. Then the holder becomes entitled to demand the sum named in the promise. Of course, in fire policies, the nature of the promise is different. That is a contract of indemnity against loss. The nature and extent of the loss must be shown, and only to the making good of the loss is the insurer bound in the very terms of his contract. No statute has gone so far as to declare that a life policy, valid in its inception because of a creditor’s interest in the life of his debtor, shall be invalid the moment the debt is paid. (Goodwin v. Mass. Life Ins. Co., 73 N. Y., 497.) Besides, from the nature of the contract, which is paid for by the creditor, he needs the payment of the policy to do complete justice to him. Suppose he has received, subsequent to payment of premiums for years, the debt due from his debtor, he has thus received only what it may be assumed he has- advanced -or’ loaned to his debtor. He has received nothing for the series of premiums he has delivered over from year to year to the insurer to keep alive the policy. So, too, in the case at hand, if we were to hold that the policy was avoided by payment or discharge in bankruptcy of the debt, the creditor would surely be the loser of the premiums paid, after the payment of his debt or the discharge in bankruptcy, and the insurance company would be the gainer. It would keep in its coffers moneys which it received as a consideration for its promise, which it had not kept. It would be the gainer by the incidental circumstance that the debtor had paid what only •he justly owed his creditor, or what he had escaped paying by obtaining a discharge in bankruptcy. Surely no such contingency was taken into mind or measured in fixing the amount of premiums demanded for the policy. That amount was ascertained by the standard tables relating to the probabilities of human life upon which life insurance companies anchor when they fix and determine the schedule of premiums to be exacted in the conduct of their business. "We are, upon principle, prepared to agree with the English court in its conclusion in Dalby v. India and London Life Assurance Company (28 Eng. Law and Eq., 312). Indeed, we think the doctrine of that case has been accepted in this State, and that both upon principle and authority we should say that the insurer is bound to fulfill its contract, valid in its inception, notwithstanding the debtor upon whose life it runs may have paid his creditor or Obtained a discharge in bankruptcy therefrom. (Rawls v. American Life Ins. Co., 36 Barb., 357; affirmed 27 N. Y., 282; St. John v. American Mut. Life Ins. Co., 3 Kern., 31, and note at p. 41; Olmsted v. Keys, 85 N. Y., 598, 599; Bliss on Life Ins., § 30; May on Ins., §§ 115, 116.)

The discharge in bankruptcy did not destroy the moral obligation of the debtor to pay his debt. (Dusenbury v. Hoyt, 53 N. Y., 521.) Besides, it appears that no such defense as a discharge in bankruptcy was interposed in the action brought upon the debt, or set up in a supplemental answer, and judgment passed againt the debtor and remained unquestioned when the policy matured. The discharge in bankruptcy at most was a personal defense, which by not pleading or asserting by motion for a perpetual stay the debtor could waive. The discharge when granted operates to cut off the creditor’s remedy for the enforcement of his debt by judgment and execution as fully as the statute of limitations. And the nature of either of the two defenses does not suggest any distinction between them, so far as they may affect the question of an insurable interest in a creditor, after the right to interpose such a defense has arisen in favor of the debtor. In Rawls v. The American Life Insurance Company (27 N. Y., 282) it was held that a creditor’s insurable interest continues, although the statute of limitations would have barred his action on the debt if pleaded before the debtor’s death. (See, also, 85 N. Y., 598.) We have not overlooked the fact that a' discharge in bankruptcy might have been used upon a motion for a perpetual stay of the judgment by the debtor. (Cornell v. Dalken, 38 N. Y., 253.) But it appears the debtor made no such use of it, though he continued in life nearly ten years after the recovery of a judgment against him upon the debt existing at the time the policy was issued.

After the recovery of judgment, March.27, 1868, the discharge granted April, 1868, was not asserted by the debtor upon any motion for a perpetual stay of execution or otherwise. We see no sound reason why the defendant should now avail of or profit by the discharge. Defendant urges that in a case where the debt has been paid a payment by the insurance company of the policy would be a payment of the debt a “second time.” Not at all. The company simply observes its contract to pay a stated sum of money in return for premiums received, as soon as the death happens, which is the only event named in its contract which must occur before its promise becomes absolute.

.The ease of Babcock v. Bonnell (10 Weekly Dig., 158; S. C., 80 N. Y., 244), cited by appellant’s counsel, is unlike the one before us. There it was found as a fact that the policy was taken out and delivered to defendant as collateral security for an indebtedness of the firm, and it was held that when that indebtedness was discharged the defendant had mo further right to the policy. The deceased debtor obtained the policy, paid the first premium, and delivered it as collateral to certain debts, and they were paid in part and compromised, and the court found defendant had no other interest in the policy and was bound to account for it. The case is not like the one before us. Ruse v. The Mutual Benefit Life Insurance Company (23 N. Y., 523, and S. C.., 24 id., 653), on motion for a reargument, does not aid the appellant. That case declares that at the time the policy is issued, the party obtaining it must have an insurable interest, and that in the absence of proof, that fact is fatal to a recovery. Judge S elders opinion shows that without such interest the policy would be a wager one, and void at common law, as well as by the statute of 14 George III.

We pass from this branch of the case, having reached the conclusion that the partial payment of the debt, a discharge in bankruptcy, a full payment of the debt, if made out by the evidence, would not have constituted a defense to plaintiff’s claim upon the policy, or to any part thereof.

Third. Whether there was a breach of warranty or not became a question of fact. (Grattan v. The M. Life Ins. Co., 92 N. Y., 274.) The evidence was conflicting. It was competent for the plaintiff to show that there had been no breach of warranty. In doing so it was proper to receive evidence from the plaintiff “ as to the health of the party whose life is insured, * * * as to his health prior to the application for the policy.” (Rawls v. The A. M. Life Ins. Co., 27 N. Y., 282.) If the plaintiff knew of nothing to indicate that Amos was not in good health, the warranty was not broken even though there were germs of disease. (Grattan v. The M. Life Ins. Co., supra.)

In addition to the conflicting evidence upon the subject of whether there had been a breach of warranty or not, which the court submitted to the jury properly, as we think, there was a question arising upon the evidence as to whether the defendant had become estopped from setting up a defense growing out of the breach of warranty alleged. Defendant in its suit against the plaintiff in 1873 had been defeated, and after the decision thereof by Judge Doolittle, an interview was held with defendant’s agent by plaintiff in respect to the policy and any further objection to it. True, the plaintiff gives one version of that interview, and the agent Prender-gast gives another, and thus a question of fact arose in respect thereto. But we think it was proper to submit that question of fact to the jury. The law was correctly laid down by the trial judge in his charge to the jury as to the rights of the parties, and it was left for the jury to say which version was correct. They have found favorably to the plaintiff, and we see no occasion to disturb their verdict on that branch of the case. By their finding it appears plaintiff paid back and subsequent premiums, relying upon the assurance of the company through its agent “ that there would be no more trouble, and that when plaintiff’s brother died the money would be ready and he would get his $5,000.”

In order to find this issue favorable to the plaintiff, the judge instructed the jury they must find that the defendant had knowledge of the-facts which it was alleged constituted the breach of warranty. Under snob a finding the company ought to be held estopped from further litigating the validity of the policy.. (Vial v. The Genesee M. Ins. Co., 19 Barb., 440 ; Carroll v. Charter Oak Ins. Co., 38 id., 402; Rowley v. The Empire Ins. Co., 3 Keyes, 557; Herman’s Law of Est., §§ 467, 548; Lycoming Ins. Co. v. Slockbower, 26 Penn. R, 199; Witherell v. Maine Ins. Co., 49 Me., 200; Devins v. Insurance Co., 83 N. Y., 169, 173.)

Fourth. No error was committed in excluding the evidence of’ Doctor Watson, based upon information derived from the deceased while he was under treatment from the doctor. Information acquired while attending a patient professionally is privileged, and a physician is not allowed to disclose it. Defendant could not waive the objection to it. The rulings of the court were within the settled law in respect to such evidence. (Code of Civil Pro., § 834; Edington v. Mutual Life Ins. Co., 67 N. Y., 185; Grattan v. The M. Life Ins. Co., 28 Hun, 430; S. C. affirmed, 92 N. Y., 275.)

Fifth. We see no error in receiving in evidence the premium receipts, sixteen in number, issued by defendant as evidence of payments made by plaintiff. They furnished evidence of the amount of money the defendant had received from plaintiff. Although the payments were not disputed hy defendant in its pleadings, we see no error in allowing the evidence to be given.

Some other exceptions were taken by defendant, which we have examined without finding any error. Our opinion is, therefore, that the judgment and order should be affirmed.

Smith, P. J., and BarKer, J., concurred.

Judgment and order affirmed.


author: Hardin, J.:

text:
    HENRY VAN AERNAM, Respondent, v. CHARLES W. McCUNE, President of the Courier Company, Appellant.

      Action against a joint-stock association — when its corporate character is sufficiently prosed — an action for libel will lie against it.

    In this action, brought to recover damages for a libel, the complaint alleged that the defendant “is a joint-stock company or association duly formed, organized ■and acting under and by virtue of the laws of this State.” Upon the trial the defendant admitted, for the purposes of the trial, that “ the Courier Company is a joint-stock association, as alleged in the complaint, and that the defendant was its president at the time of the commencement of this action.” Subsequently the defendant moved for a nonsuit upon the ground that the action was not of such a nature that it could be maintained against a joint-stock association in the name of its president,, and because there was no proof that the company consisted of seven or more shareholders or associates.

      Meld, that the motion was property denied.
    An action for libel will lie againt a joint-stock association.
    Appeal from a judgment, entered on a verdict for $2,000, in an action for libel, and also from an order denying a motion for a new trial made on- a case and exceptions. The cause was tried February, 1881.

      John G. Milburn, for the appellant

      D. H. Bolles, for the respondent.
   Hardin, J.:

Plaintiff’s complaint alleges that the defendant is a joint-stock company or association duly formed, organized and acting under and by virtue of the laws of this State.” Upon the trial defendant made an admission, viz: “ It is admitted for the purposes of the trial of this action that the Courier Company is a joint-stock association, as alleged m the complaint, and that the defendant was its president at the time of the commencement of this action.” After proof of the libelous publication in the Courier had been given, defendant gave some evidence in mitigation. In the course of the trial defendant asked for .a nonsuit, on two grounds : (1.) Because the action was not of such a nature that it could be maintained against a joint-stock association in the name of its president or treasurer.. (2.) Because if it were such an action there is no proof that the company consists of seven or more shareholders or associates.” The motion was denied and defendant excepted.

It is now contended the motion should have been granted, “ by reason of the failure to show that the Courier Company consisted of seven or more shareholders or associates.” There was no defense in abatement. There was no defense in which it was alleged that McCune was not president of the association named in the complaint. By chapter 258, Laws of 1849, the legislature authorized suits against joint-stock associations to be brought against the president or the treasurer “ for the time being of such stock company or association.”' (See amendments, chap. 455 of Laws 1851; chap. 15.3 of Laws-1853 ; chap. 289 of Laws 1867.) Since the act of 1849, and the amendments, the legislature has adopted section 1919 of the Code of Civil Procedure, which incorporates the substance of the previous legislation, inréspect to bringing actions “ upon any cause-of action” against all the associates. It then declares “any partnership or other company of persons, which has a president or treasurer is deemed a/n association within the meaning of this section.”

"We are of the opinion that the action was properly brought against- the defendant, and that there was not a failure of proof upon the trial, and that the motion for a nonsuit was properly denied. (Nat. Bank v. Van Derwerker, 74 N. Y., 234; Code, see. 1919.)-An association of the character shown by the pleadings, admissions and proofs, is liable to an action for libel. (See dissenting opinion of Davies, P. J., in Samuels v. Eveuing Mail Ass., 9 Hun, 294,, on which the Court of Appeals placed its decision in reversing, the majority of the Supreme Court, as appears by memoranda in 75 N. Y., 604.) A leading case to the effect that a corporation is responsible in an action for the publication of a libel, is found in Philadelphia, Washington and Baltimore Railroad Company v. Quigley (21 How. [U. S.], 202).

In many respects joint-stock associations are like corporations, in other respects they resemble copartnerships. (Waterbury v. The M. Express Co., 50 Barb., 157; see, also, article 8, section 3 of the Constitution of the State.)

No other objection being made to- the trial, we are led to the 'Conclusion by whát has already been said, to affirm the order and judgment.

Smith, P. J., and Barker, J., concurred.

Judgment and order affirmed.


author: HaRDIN, J.:

text:
    In the Matter of the Alleged Will of HARRIET CHASE, Deceased.

      Temporary administrator — the special guan'dian of an infant may apply for his appointment — the disai’etion of the surrogate in granting the application will not he remewed — Oode of Oivil Procedure, sec. 2668.
    Pending a contest over the admission of the will of Harriet Chase, deceased, to prohate, one Taggart, who had been appointed special guardian for James Chase, the infant child and only heir-at-law of Harriet, applied for the appointment of a temporary administrator. The petition was made and signed and verified by him. It recited the facts as to the contest and his appointment, and that James was the only child and heir-at-law. The motion was made upon the proceedings theretofore had and the petition.

      Held, that an objection that the petitioner was not a person interested in the estate or authorized to make the petition was properly overruled by the surrogate.
    The appointment of a temporary administrator is confided, by section 2668 of the Code of Civil Procedure, to the discretion of the surrogate, and with the exercise of this discretion the court will not interfere where a case is made out within the terms of the statute.
    Appeal from an order of the surrogate of Jefferson county, ■appointing one John D. Ellis temporary administrator of the goods, •etc., of Harriet Chase, made September 3, 1883.
    In June, 1883, Harriet Chase, a resident of Antwerp, Jefferson ■county, died, leaving James Chase her only child and heir-at-law, an infant aged about fourteen years. John P. Douglass, who was named .as an executor in the will of the deceased, instituted proceedings for "the probate of her will and codicil, before the surrogate of Jefferson county, and thereupon the surrogate duly appointed Vm. W. Taggart ■special guardian of the infant, and he appeared and filed objections to the will and codocil as guardian for the infant after the will had been filed for probate. Thereupon the witnesses were examined. While the proceedings remained pending and undetermined, and on August 18, 1883, Taggart signed in bis own name, individually, and verified a petition for an order appointing a temporary administrator. The petition stated that James Chase was the only child and heir-at-law of the deceased, and set forth the petitioner’s interest as to the probate of the will and his appointment as special guardian.
    On the return day of the notice the parties appeared in the Surrogate’s Court and the executor took two objections to any proceedings on the petition. 1. Because the petitioner was not a person interested in the estate of Harriet Chase or a person authorized to make the petition. 2. That the petition did not show facts giving jurisdiction. These objections were overruled and the executor excepted.

      Lansing db Rodgers, for John P. Douglass, as executor, etc., appellant.

      C. W. Thompson, for William W. Taggart, special guardian, respondent.
   HaRDIN, J.:

The notice of the application for the appointment of a temporary administrator was given ten days before the application was made. That was a compliance with section 2669 of the Code of Civil Procedure. It stated “ that on the proceedings heretofore had and upon the foregoing petition ” the application would be made. That authorized the moving party to read his petition, and the proceedings already had in the Surrogates’ Courts. By them it appears Mr. Taggart had been appointed special guardian for the infant James Chase, and that he was the only heir-at-law of deceased. The application was made in his behalf. The petition in its concluding words read, viz.: “ Wherefore your petitioner as such special guardian prays that a temporary administrator of the goods, chattel and credits of said Harriet Chase, deceased, may be appointed.”

The application being that of the infant, was by “ a person interested in the estate” of which the surrogate had jurisdiction. The proceedings and petition showed all the jurisdictional facts, and the Surrogate’s Court was called upon to exercise its discretion under section 2668 of the Code of Civil Procedure. That section confides to the “ discretion ” of the surrogate the power to issue letters of temporary administration ” in certain enumerated cases. This case is one of those named in the statute, as where delay necessarily occurs in granting letters testamentary or of administration in consequence of a contest arising upon an application therefor or for probate of a will.” (Sec. 2668, sub. 1.) The section expressly confers a discretion upon the Surrogate’s Court, and we ought not to set aside the result of his discretion, as a proper case within the terms of the statute was made. Three dairy farms, with the usual personal property thereon, needed attention, and there was some $25,000 of personal property left by Mrs. Chase. Before this section of the Code iras adopted, a similiar power was rested in a surrogate, and it was held by the Court of Appeals that its exercise was discretionary, and that court refused to review the discretion. (McGregor v. Buel, 24 N. Y., 169.) In that case Judge Denio said “ the determination of the surrogate upon such questions is, as it should be, summary and exclusive.

Our attention is directed to the case of The Buffalo Catholic Institute v. Bitter (87 N. Y., 255), and a suggestion is made that the petition within the doctrine of that case was the individual petition of Mr. Taggert and not that of the infant by its guardian. But in that case there was no averment that showed the contract was made in a representative capacity. Judge ANDREWS says “ there is no averment that Fornes was president of the plaintiff or its agent, or made the contract as such, or that it was intended as a contract between Weisser and the plaintiff.”

In the case in hand the petition and the proceedings pending before the surrogate clearly pointed out an application made in behalf of James Chase the infant sole heir of his mother, of whose estate the surrogate had acquired jurisdiction.

Order affirmed, with ten dollars costs and disbursements.

Smith, P. J'., and Baeeee, J., concurred.

Order affirmed, with ten dollars costs and disbursements.