author: Dykman, J.

text:
    Laura Stevens, Resp’t, v. John B. Lord, as Executor, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Partnership—Deceased partner.
    The rule, which provides that the estate of a deceased partner cannot be subjected to the payment of partnership debts until after the remedies against the surviving partners shall have been exhausted, is not applicable, where the decedent not only became the principal debtor, but also, by his voluntary action, relinquished all claim against the other partners.
    3. Limitation—Payment .
    The payment of principal or interest operates as an acknowledgment of the continued existence of a demand, but is not, of itself, either a promise or a contract.
    Appeal from a judgment in favor of plaintiff.

      Thenford Woodhull, for app’lt.
   Dykman, J.

This is an action upon a promissory note, of which the following is a copy:

$15,000.00. New York, January 16, 1878.
Two years after date, we promise to pay to the order of Mrs. Laura Stevens fifteen thousand dollars, with interest at rate of seven per cent, per annum. Value received.
W. B. Hunter & Co.
No. 804. Due-.

The persons composing the copartnership firm of W. B. Hunter & Co. at the time of the execution of the note were Hunter, Robb, Wykes, and Stevens. Wykes retired from the firm in 1879, and Steven retired in 1880. Each relinquished his interest in the partnership business and assets upon an agreement of the remaining partners that- they would assume and pay all the debts and discharge all the liabilities of the firm. Hunter died in 1888, and the plaintiff, with the assent of Robb, Wykes, and Stevens, released Hunter’s personal representatives from all liability upon this note in suit. Robb died in J uly, and this action is brought against the defendant, as the personal representative of Robb. The claim of the plaintiff upon the note was presented to the defendant, as such executor, and rejected. One of the defenses set up against the note is the statute of limitation; and to meet that defense the plaintiff proved, upon testimony that remained undisputed, that Robb made payments on account of the interest upon this note every year between J uly, 1880, and J uly, 1892. The note matured January 19, 1880, and none of the payments after that date were as large as the sum due for interest when they were made. The cause was tried before a judge without a jury, and he found the foregoing facts, and decided the case in favor of the plaintiff. The defendant has appealed from the judgment entered upon such decision.

It is to be observed, in justification of the action against the de fendant, that his testator, Robb, at the time, of his death, was the sole surviving partner of the firm of W. B. Hunter & Go. By his transactions with his co-partners, and his consent to the release of the personal representatives of Hunter, he became the principal debtor upon the note.' It is true that Wykes and Stevens remained yet liable to the plaintiff upon the note, but their liability was that of surety for Robb. Savage v. Putnam, 32 N. Y. 501. The relation between Robb and the other two imposed upon him an obligation of indemnity, and, under such circumstances, it was the clear right of the plaintiff to look to his estate for the payment of her note. In fact, it was within the power of Wykes and Stevens to compel the plaintiff to treat Robb as the principal debtor. Menke v. Gerbracht, 75 Hun, 181; 57 St. Rep. 839: Colgrove v. Tallman, 67 N. Y. 95 ; In re Dawson, 59 Hun, 242; 36 St. Rep. 311. If the severe rule of the common law would discharge the estate of Robb, by reason of his death, from the joint liability imposed upon him by this note, equity will perpetuate his liability. Barnes v. Seligman, 55 Hun, 394; 29 St. Rep. 68; Barnes v. Brown, 130 N. Y. 372; 42 St. Rep. 536. It must be remembered that this action is upon a joint obligation, and the makers of the note were joint contractors, and became joint debtors. The rule of law laid down in above cases and others is therefore applicable. Moreover, the defendant’s testator had not only become the principal debtor of the plaintiff, but he had, by his voluntary action, relinquished allclaim against Wykes and Stevens, and the estate of Hunter, also. When Wykes and Stevens retired from the firm, Hunter and Robb remained, and assumed the payment of all the liabilities. Then the two latter became liable, to pay the note of the plaintiff, and when Hunter’s estate was released by the plaintiff, with the assent of the other three, Robb became solely liable for the payment of the note of the plaintiff, without any right of' contribution against the other makers. From this peculiar state, of' facts, therefore, the result is that the rule" which provides that the estate of a deceased partner cannot be subjected to the payment of partnership debts until after the remedies against surviving- partners shall have been exhausted is inapplicable to this case.

It remains now to determine the legal effect of the payments of interest upon the note by the testator of the defendant. Without such payments, the remedy upon the note would have been barred by the statute of limitations. As we have already observed, payments on account of interest were made by Robb at differenttimes down to 1892; and the testimony brings the case fairly within the recent rule laid down by the court of appeals in the case of Crow v. Gleason, 141 N. Y. 489; 57 St. Rep. 583. The payments were made for interest upon the note in suit with the full knowledge that they were to be- so applied; and under circumstances which manifest a full recognition of the note as an outstanding unpaid obligation. The legal effect of a payment of principal or interest is unchanged by the Code of Civil Procedure, and it operates as an acknowledgment of the continued existence of the demand. It is not, of itself, either a promise or a contract; but it is a deliberate act,, which constitutes a. clear recognition of the existence and validity of the demand; from which a promise to pay the same may be implied. It is an admission that there is a subsisting debt, which the debtor is willing to pay. Shoemaker v. Benedict, 11 N. Y. 185. The case of Van Keuren v. Parmelee, 2 N. Y. 523, has no application to this case, because here the payments were made by the person whose personal representative is sought to be charged. The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Morris E. Brainard et al., Resp’ts, v. Kings County et al., App’lts, et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Contract—Construction.
    _ Where subcontractors, who are unable to complete their contract, authorize the contractors to take charge of the work and complete the same for their account, without waiver of their rights under the original contract or of any extra work accruing from the same, the contractors, by proceeding with the work, assume only to finish it for the subcontractors, and, on completion, the cost is to be deducted from the contract price before anything will become due to the subcontractors to which a lien will attach.
    Appeal by some of the defendants from a .judgment in favor of plaintiff.

      Kellogg, Rose & Smith, for app’lts Dean & Westbrook; George F. Elliott, for app’lt county of Kings; F. H. Van Vechten, for app’lt county of Queens; Jas. R. Steers and Cephas Brainerd, Jr. (Horace Secor, Jr., of counsel), for resp’ts.
   Pratt, J.

It seems to be conceded on the part of appellants that the judgments in favor of Drake, Stratton & Co., Limited, and King Bridge Company, should be affirmed; so that the only points to be considered relate (1) to the question of error raised by the two counties as to the amount due the contractors of $50,-000; and (2) whether the lienors, creditors of Cregin & Co., are entitled to judgments.

The first question is of small moment, as it can be readily corrected. Of course, everybody concedes that the liability of the counties is limited by statute to the amount due the contractors (§ 8, c. 629, Laws 1892), which can be easily ascertained, or the counties can be relieved by a stipulation that in no event shall they be called upon for more than is due.

The difficult question is the second, relating to the creditors of Cregin & Co. If they are to succeed, it must be by showing that on or after April 13, 1893, some amount became due Cregin & Co. from Dean & Westbrook for work done pnder their contract. By their refusal or inability to go on under their contract, Dean & Westbrook were put in a position where they must either go on and finish the contract, or forfeit all rights under it. The Cregins voluntarily surrendered up the contract to be performed by Dean & Westbrook, and the latter voluntarily accepted that duty, and proceeded to finish the work described in the contract. After an interview with the engineer for the counties, in which Cregin had stated that he could not go on, and on April 13, 1893, they wrote the following letter to Dean & Westbrook:

“ April 13th, 1893.
“ Messrs. Dean & Westbrook—Dear Sirs : You are hereby authorized to take charge of work we have been doing under our contract to build bridge at Meeker avenue, Brooklyn, and complete the same for our account. We do not waive by this provision our rights under the original contract, or any extra work accruing from same; we to receive ^ of the profits accruing on such extra work.
“ Yours, truly, C. A. .& T. Cregin.”

—And Dean & Westbrook at once proceeded to finish the work. I do not think this amounted to a rescission of the contract between them, leaving the 20 per cent, withheld and the work done since last'pay day due the Cregins; but it, was an arrangement entered into bv which the contract was agreed to be assumed and carried out on account of Oregin & Co., they not waiving any rights under it, and to receive all the profits and one-half of the profits of the extra work. It must be assumed that Dean & West-brook accepted this proposition, and finished the work under it. It seems to me that under this arrangement, supposing that the contract thus assumed by Dean & Westbrook had been completed at a profit, in such case the Cregins would have been entitled on an accounting with Dean & Westbrook to the 20 per cent, that had been withheld, also to be paid for all the work that had been done up to April 10, 1893, the day they quit work, and to one-half the profits on extra work, if any. It seems to me clear that the same rule should apply when a loss occurs in completing the contract.

It was to be done for the Cregins, “ on our account,” to wit, their account. I pay no attention to the claim that no pay was due and payable until the 17th of April under the contract, as some work had been done which would become payable on that day; and in this case we may regard it as ■ equitably due as between the Cregins and Dean & Westbrook, as it would have been allowed on an accounting between them. Dean & Westbrook did not take the contract off the hands of the Cregins, but assumed to finish it at that date on their account.

What were the rights under the original contract that the Cregins did not waive? I assume that they were to receive, when the contract was complete, the full price thereof, including the 20 per cent, withheld as security, and pay for any extra work, but were entitled to nothing unless they performed their contract. The words “our account,” in the letter of April 13th, are the keynote. The proper construction of these words means that the Cregins were to be responsible for the cost of the work, and to receive the pay for it; otherwise the words have no meaning. If this is a proper construction of the arrangement between Oregin & Go. and Dean & Westbrook, then when did anything become due from Dean & Westbrook to them ? The 20 per cent, could not become due until 80 days after completion of the contract, which Oregin & Go. never completed until after the 20 per cent. and the sum due for work by him had all been exhausted in completing the contract; so that at no time did Cregin & Co. have anything due them, from Dean & Westbrook. Can it be said that Dean & Westbrook, under the circumstances, took the risk of finishing" Cregin & Co.’s work under the contract on their own account, and allow Cregin & Co. credit, and pay them, for all the work up to that time, together with the reserve of 20 per cent.? They did not say so, neither did the letter of the Cregins contain any such intimation. This is the theory upon which the judgment is based. The trial judge has found that, at the time the contract was assumed by Dean & Westbrook, there was due Cregin & Co. about $8,000, earned since the last pay day (17th of March), and the 20 per cent, reserve provided for in .the contract; but it must be observed that much labor and materials had been expended on the work before any lien was .filed, and, if it was done on account of Cregin & Co., then that must be deducted in order to ascertain what, if anything, was due Cregin & Co. at the time of filing the separate liens. We are obliged either to hold that, at the time of Dean & Westbrook’s assuming to finish the contract, there was due to Cregin & Co. the said 20 per cent, reserve, and for labor up to April 10, 1893, about $3,000, which has remained unpaid up to the filing of liens, or we must hold that the contract was completed on account of Cregin & Co., and that it is not shown what, if anything, became due to them. It is to be observed that Cregin & Co. were not entitled to anything until the contract was finished. There was not at any time anything due him from the counties defendants here, neither do the evidence or findings specifically show what was due when any lien was filed, except that it is found that the amount for labor since last pay day and the 20 per cent, reserve is found to be due up to the filing of the last lien in July, 1893.

The whole question turns upon the letter andón the words“our account.” If Dean & Westbrook took the contract off the hands of the Cregins at their own risk, intending to allow the Cregins all they had earned up to date, and the 20 per cent, reserve, then this judgment is entirely right. If, on the other hand, they assumed, and that was the contract, to finish the work for account of Cregin & Co., then at no time did they owe Cregin & Co. anything. It seems to me that the latter is the true construction, and that the judgments of the lienors, creditors of Cregin & Co., must be set aside and a new trial granted.

The judgments of Drake, Stratton & Co., Limited, and the King Bridge Company, affirmed. Mew trial as to the other defendants.

All concur


author: Brown, P. J.

text:
    Thomas L. Vickers, Resp’t, v. Sanford W. Battershall et el., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

      1. Pledge—Right to redeem.
    The -iglit to redeem pledged property cannot be waived or abandoned by any stipulation of the parties made at the time, even though embodied in the instrument creating the pledge.
    2. Evidence—Pakol evidence.
    Parol evidence is admissible to show that a part only of an agreement was reduced to writing.
    Appeal from, a judgment, entered on a verdict directed by the court in favor of plaintiff.

      George P. Gordel, for App’lts; A. Simis, Jr., for Resp't.
   Brown, P. J.

This action was brought to recover upon a promissory note for $500, dated January 13, 1887, made by the defendant Anna S. Battershall to the order of Sanford W. Batter-shall, and by him indorsed to the plaintiff, and payable two months after date. This note was given in renewal of a prior note for the same amount, which bore date September 10, 1886, and matured on January 13, 1887. Both defendants pleaded payment, and this was claimed to arise from the following facts. On November 25, 1886, the defendant Sanford W. Battershall was indebted to Spencer Trask & Co. in the sum of $522.59. That firm held as collateral a promissory note made by one James O’Brien, payable to the order of Anna S. Battershall, and indorsed by her, upon which there was unpaid more than $2,000. The plaintiff, at the request of Sanford W. Battershall, paid the debt to Trask & Co., and received the O’Brien note, and Sanford executed and delivered to him his note bearing date November 25th, for the amount paid to Trask, payable five months after date. Upon the back of this note was indorsed the following:

*‘T. L. Tickers holds, as security for payment of this note at maturity, a certain note made April 25th, due one year from date, for three thousand dollars, signed by Jas. O’Brien, and indorsed by Anna S. Battershall to S. W. Battershall, upon which eleven hundred dollars has been paid to me, and, in case this note is not paid at maturity, the said note of O’Brien shall belong to said Tickers, his heirs and assigns. Battershall has the privilege of paying this note at any time before maturity, and receiving O’Brien’s note back.
“S. W. Battershall.”

The note given for the Trask debt was not paid, and Tickers thereafter sued Mrs. Battershall upon her indorsement on the O’Brien note, and collected from her thereon about $2,500. Upon the trial of this action, Sanford W. Battershall testified that the O’Brien note was delivered to the plaintiff, not only as collateral to the note given for the Trask debt, but also to the note of which the note in suit was a renewal; and if this was the fact it followed that the note in suit was paid by the proceeds of the collection on the O’Brien note, and a surplus left which was due to the defendants, or one of them. At the close of the evidence the court, against the defendant’s objection and exception, struck out all the oral testimony of Sanford W. Battershall tending to show that the plaintiff held the O’Brien note as collateral to the note in suit, on the ground that it contradicted the agreement on the back of the note given, for the Trask debt,- and directed a verdict for the plaintiff. If the ruling of the trial court can be sustained, the result would be that plaintiff will have been permitted to recover and retain upwards of $3,000 in payment of a debt of a little over $1,-000. We are of the opinion that the court erred in striking from the case the oral testimony of Sanford W. Battershall, and that the judgment entered upon the verdict mus tbe reversed. The stipulation which I have quoted above cannot be held to have the effect to transfer the O’Brien note absolutely to the plaintiff on default in the payment of the note to which it was collateral. ' The O’Brien note was not transferred in payment of, but as collateral to, the note of November 25th. An equity of redemption attached to the note in the plaintiff’s hand, and nothing could destroy that equity except a judgment of foreclosure rendered by a court Of competent jurisdiction. Forfeitures are abolished under our law, and the rule is firmly established that, under every instrument given as security, the borrower has a right to redeem upon payment of the loan. A leading case in this state upon this subject is Cark v. Henry, 2 Cow. 324, which in its facts is very similar to the case at bar. There was an assignment of a mortgage by a debtor to his creditor, absolute in form. In an action by the debtor to redeem the mortgage, the defendant asserted an absolute title to the security. Upon deciding the case, the chancellor said:

“There is no principle of equity better settled than that every contract for the security of a debt by the conveyance of real estate is a mortgage, and all agreements of the. parties tending to alter, in any subsequent event, the original nature of the mortgage, and prevent the equity of redemption, is void.”

Upon affirming the judgment, the court of errors said:

“The right to redeem is carefully protected by courts of equity. They will not suffer an agreement to prevail that the estate shall become an absolute purchase in the mortgagee upon any event whatever. * * * There is no exception to the rule, ‘once a mortgage, and always a mortgage.’ ’’

In Peugh v. Davis, 96 U. S. 332, the supreme court of the United States recently stated the rule to be that the right to redeem “cannot be waived or abandoned by any stipulation of the parties made at any time, even if embodied in the mortgageand the principle is stated by Judge Story in his work on Equity Jurisprudence (section 1019) as follows:

“So inseparable is the equity of redemption from the mortgage that it cannot be disannexed even by an express agreement of the parties. If, therefore, it should be expressly stipulated that, unless the money should be paid at a particular day or by a particular person, the estate should become irredeemable, the stipulation would be utterly void.”

Under the application of this rule, the provision contained in the assignment of the O’Brien note, that, in case of nonpayment of Battershall’s note, it should “belong to said Vickers, his heirs and assigns,” did not change the character of that instrument. It was a pledge or mortgage, and always remained such, and its terms were not contradicted or varied in the least by paroi evidence that the O’Brien note was held .as collateral security for the payment of the note in suit. Evidence to that effect permitted the stipulation to stand and be enforced by the plaintiff according to its terms, and had no other effect except to impress upon the surplus that might remain in Vicker’s hands a lien in his favor to secure payment of the note in suit. It contradicted nothing except the clause which apparently declared a forfeiture of the O’Brien note, but, as that clause could not be enforced without an opportunity to redeem, it did not vary or change the legal character of the instrument. The rule that paroi evidence cannot be received to contradict or vary the terms of a written contract is not of universal aplication, but has many exceptions, one of which is to admit the evidence when it tends to show that a part only of an agreement was reduced to writing. Chapin v. Dobson, 78 N. Y. 74; Brigg v. Hilton, 99 id. 517; Routledge v. Worthington Co., 119 id. 592; 30 St. Rep. 195.

The testimonj7 of Battershall was therefore admissable, and should not have been striken out. If the jury had found that the O’Brien note was collateral to the note in suit, it would have followed, as a necessary conclusion, that the latter instrument was paid. Mrs. Battershall is not estopped by the judgment against her on the O’Brien note from raising the defense of payment in this action. She was liable-on the O'Brien note upon her contract of indorsement, and she alleged in her answer in this action, and testified on the trial, that she had no knowledge of the transaction with the plaintiff by which he acquired that note. It is not necessary to determine on this appeal whether the judgment on the O’Brien note would estop her from recovering back any portion of the money paid thereon. She does not assert any such claim in her answer. The fact of the recovery of the judgment on the O’Brien note, and the payment thereof, does not debar her from proving in this action that the proceeds of that judgment were, by plaintiff’s agreement, applicable to the payment of the note in suit. If that agreement existed, then, upon the payment of the judgment to plaintiff, the note in suit was eo instanti extinguished. Sanford W. Battershall, in his answer, claims to recover the surplus upon the O’Brien note remaining after the payment of the two notes held by the plaintiff; and, if the fact is that he was the owner of the O’Brien note at the time of its transfer to the plaintiff, no reason is apparent why his claim is not well founded, or why it may not be asserted as a counterclaim in this action. He certainly is not estopped by the judgment against Mrs. Battershall, but holds his equity of redemption in the proceeds of the note the same as he did in the note itself.

The counterclaim, although one cognizable by a court of equity, is properly pleaded in this action. Code Civ. Proc. § 507. It does not, however, clearly appear in the testimony who owned the O’Brien note at the time of its transfer to plaintiff. On its face title passed from Mrs. Battershall, its payee, to Trask & Co., and from that firm to the plaintiff. It may, however, have been the property of Sanford W. Battershall. The fact can be determined on a new trial. The judgment must be reversed, and a new trial grante'1 costs to abide the event.

All concur.


text:
    In the Matter of the Application of William H. Smith et al., for a Writ of Habeas Corpus.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

      1. Health—Powers of health officers.
    When an epidemic of smallpox is imminent, the health officers may quarantine persons who refuse to submit to vaccination.
    3. Same—Due process of law.
    Such power and authority are vested in the board by statute, and the legitimate exercise thereof is due process of law.
    "Appeal from an order discharging the relators from detention.

      Alexander H. Van Cott, for app’lt; Horace Graves, for resp’ts.
   Dykman, J.

This is an appeal from an order discharging the relators from detention. The proceeding was by habeas corpus, and the order was made upon the petition of the relators and the return of the defendant. The relators did not traverse the return, but it is to be gathered from the appeal book that the case proceeded upon the theory of a demurrer ore lenus to the return. The return consists of the statement of the commissioner, the affidavit of the department’s vaccinator, and the declaration, approval, and proclamation of the commissioner, the mayor of the city, and the president of the Kings County Medical Society, made in pursuance of § 5, tit. 12, c. 583, of the Laws of 1888. The proclamation was this:

“ We, the mayor of the city of Brooklyn, and the president of the Medical Society of the county of Kings, do hereby approve the taking and doing of the measures and acts above declared necessary by the coznmissioner of health of the said city of Brooklyn, and that the said mayor, president, and commissioner do hereby declare that the peril from an impending epidemic of smallpox shall be deemed to exist, or to exist for the period from Jan. 1st, 1894, to and inclusive of July 1st, 1894. And we do hereby proclaim the same to have so existed, and to so exist for said period. Dated, Brooklyn, N. Y., May 4th, 1894. [Signed by the mayor, president of the medical society, and the commissioner of health.]”

The measures declared necessary, to which a reference was made in the proclamation, was the declaration of the commissioner of health, stating that thorough and sufficient vaccination of every citizen who has not been successfully vaccinated within the last three months, as, in the judgment of the commissioner of health, rendered such person immune, should be procured. And, whenever any person in said city should refuse to be so vaccinated, such person should be immediately quarantined, and detained in quai'antine until he consented to such vaccination. The return of the commissioner to the writ is as follows:

“Obedient to the command of the annexed writ, I hereby certify and return that before the said writ came to me, on the 3d day ■of May, 1894, at four o’clock in the afternoon, William H. Smith and Thomas Cummings were placed under quarantine, by my orders, as such commissioner of health, in the premises Nos. 129-131 Franklin street, in the city of Brooklyn, under and by virtue of the authority vested by law in me to take such precautions as are necessary for the protection of the public health against smallpox ; that each of the.said persons was and now is so detained in quarantine in the said premises by reason of his refusal to permit a duly-authorized vaccinator of said department of health, or some reputable physician of the city of Brooklyn, to vaccinate him; that as appears by the affidavits of Dr. Henry L. Shelling, Dr. George Wieseckel, and Dr. Louis Hess, all verified the 4th day of May, 1894, and annexed hereto, the said doctors severally requested the said persons detained as aforeasaid to submit to vaccination, and that the said persons refused the request of each of the said physicians, and still continue to refuse the same; that since the month of December, 1893, smallpox had been present to an alarming extent in said city of Brooklyn; that during the months of January, February, Starch, April, and May, 1894, the said disease had been epidemic in the city, and the utmost precaution and the most thorough preventive measures have been necessary in order to prevent the spread of the disease beyond control; taht it is a well-established scientific fact that vaccination is a preventive of said disease, in the person vaccinated, and it has been for many years demonstrated that thorough vaccination of persons in crowded centers is indispensable to the prevention of epidemic smallpox; that, in pursuance of the authority vested in me by law, I have adopted every possible and proper means for securing such thorough vaccination of the citizens of Brooklyn, in order to prevent the menaced spread of smallpox therein ; that as I was informed and believed, before ordering the quarantine to be placed upon the said premises, and that said persons be detained therein, the said William H. Smith is the proprietor of an express-delivery business, and that the said Cummings is employed by him in said business, and that they are both actively engaged in the prosecution thereof in the cities of New York and Brooklyn, and especially in Greenpoint and the eastern district of said city of Brooklyn, which latter has been one of the worst infested centers of said city; that said business is of a general nature, and may include , the carrying of trunks, bedding, furniture, and numerous other articles which may come from infected centers, and be infected with the germs of smallpox, and it became at once apparent to me that the said Smith and Cummings were unusually exposed to such contagion, and that they might be seized therewith, and, by communication with others, spread the same, and that it was therefore of special importance that they should be vaccinated at once; that I therefore ordered quarantine to be placed upon the said premises, and that said persons be detained therein as aforesaid until they consented to be vaccinated, either by a duly-authorized vaccinator of the said department, or by some reputable physician; that I took such measures in order to protect the citizens of Brooklyn, and in the full belief that, if the said Smith and Cummings were permitted to continue in their said business without being so vaccinated, they might be the means of most serious, fatal consequences to other citizens with whom they might thereafter come in contact, the danger thereof being especially apparent to me from the fact that, as appears by the records of said department, there has been at least 28 cases of smallpox in and about the seventeenth ward of said city since the 1st day of April, 1894, a list of the names and localities of which cases is hereto appended, marked ‘Exhibit A ’; that a proclamation of great and imminent peril has been duly made, pursuant to section 5 of title 12 of chapter 583 of the Laws of 1888, by the mayor, the president of the Medical Society of the county of Kings, and a copy thereof is hereto annexed, marked ‘Exhibit B.’ All of which I certify, and have here the bodies of the said William H. Smith and Thomas Cummings, as by the said writ to me commanded. '

“ Dated Brooklyn, H. Y., May 4th, 1894.
“Z. Taylor Emery, M.D., Commissioner of Health.i?

Chapter 661, art. 2, § 24, of the Laws of 1893, is as follows ;

“ Sec. 24. Contagious and Infectious Diseases. Every such local board of health shall guard against the introduction of contagious and infectious diseases by the exercise of proper and vigilant medical inspection and control of all persons and things arriving in the municipality from infected places, or which from any cause are liable to communicate contagion. It shall require the isolation of all persons and things infected with or exposed to such disease, and provide suitable places for the treatment and care of sick persons who cannot otherwise be provided for. * * ■ * It shall provide at stated intervals a suitable supply of vaccine virus of a quality and from a source approved by the state board of health, and during an actual epidemic of smallpox obtain fresh supplies of such virus at intervals not exceeding one week, and at all times provide thorough and safe vaccination for all persons in need of the same.”

Section 5, Laws 1888, c. 583, tit. 12:

“ In the presence of great and imminent peril to public health of the city of Brooklyn by reason of impending pestilence it shall be the duty of said commissioner to take such measures and do and order and cause to be done such acts, and make such expenditures (beyond those duly estimated for as provided) for the preservation of the*public health from such impending pestilence as he may, in good faith, declare the public safety and health to demand, and the mayor of the said city and the president of the Medical Society of Kings county shall also in writing approve. And such peril shall not be deemed to exist, except when and for such period of time as the mayor, president of the medical society and health commissioner shall by proclamation declare.”

The preservation of the public health is of primary importance, and. boards of health have been organized for that purpose under the police, power of the state, with power to take necessary measures and precautions to secure sanity and health. It is a curious fact in connection with this case that on the 4th day of April, 1778, at the first session of the legislature under the formation of the state government, a law was passed to prevent the spreading of smallpox by which the justices of the peace were authorized to appoint houses where persons infected with smallpox might reside, and providing for the forcible removal of such persons to such houses. Laws 1778, c. 36. On the 4th day of May, 1784, soon after the close of the Revolutionary War, the legislature passed the first quarantine law of the state, entitled, “ An act to prevent the bringing in and spreading of infectious distempers in this state.” By that statute it was provided that all vessels having on board any person infected with any contagious distemper, or coming from any place infected with such contagious diseases, should not come into any port of this state, and should not come nearer to New York than Bedloe’s Island, and should be obliged to perform quarantine under certain specified regulations. Laws 1784, c. 57. The same kind of legislation has continued during the entire history of the state. “ From the earliest organization of the government, the absolute control over persons and property, so far as the public health was concerned, was vested in boards and officers who exercised a summary jurisdiction over the subject, and who were not bound to wait the slow course of the law, and juries have never been used in this class of cases. The governor, the mayor, health officers, under various names, were the persons intrusted with the execution of this important public function, and they were always empowered to act in a summary manner. Metropolitan Board of Health v. Heister, 37 N. Y. 661. “ In enforcing its quarantine regulations, a state may detain emigrants from noninfected places, who have traveled with others from infected places.” Milner's Case, 57 Fed. 276. The execution of such laws may result in the deprivation of personal liberty, and the destruction of property ; but it by no means follows that any constitutional rights have been invaded or abridged, within the meaning of the constitution. “Due process of law,” as the term is used in that instrument, requires only conformity to the rules and methods of free government, and the omission to exercise powers interdicted by the constitution, or delegated to the other great departments of government. The constitution does not guaranty the inviolability of the right to trial by jury in all cases, but only in “ all cases in which it has heretofore been used.” “ In questions relating to the public health, where the public interest required action to be taken, a jury had not been the ordinary tribunal to determine such questions prior to the constitu tian of 1846.” Board of Health v. Heister, supra. In the same ■case it was said:

“ Health officers, entrusted with the important function of executing the laws enacted for the protection of public health, were always empowered to act in a summary manner. This principle long antedates the constitution, and, being a law of the land at the time the constitution was adopted, the legislature has continued to apply it to «the enactment of statutes conferring this summary jurisdiction, and the courts have repeatedly affirmed this power in the legislature.”

“ The law of the land is due process of law.” Curtis, J., in Murray''s Lessee v. Improvement Co., 18 How. 276.

“If the statute in question was within the power of the legislature to enact, the proceedings against the relator were due process of law. He was imprisoned by virtue of pre-existing law, informed of the charge made against him, and was put in prison. The proceedings need not be according to the course of the common law.” Rapallo, J., in People ex rel. McDonald v. Keeler, 99 N. Y. 479; Happy v. Mosher, 48 id. 313; People ex rel. Witherbee v. Supervisors of Essex Co., 70 id. 228.

The fact stated in the proclamation, that “ there was great and imminent peril to the public health of the city of Brooklyn by reason of impending pestilence from the further spread of smallpox,” standing uncontradicted, required the board of health to guard against the introduction of that disease by the exercise of proper and vigilant medical inspection and control of all persons and things arriving in the city from infected places, or which, from any cause, were liable to communicate contagion. It became the duty of the board, under section 24, quoted above, to isolate all persons and things infected with or exposed to smallpox. These relators fell under- the control of the board of health.. They came to the city from infected places, and they were liable to communicate contagion. They were therefore proper subjects for isolation, and they were quarantined and detained in their premises. That isolation and detention were clearly within the scope and powers and duties of the board, and that is all it did. The board did not require the relators to be vaccinated, and that seems to be the error into which the relators have fallen. They seem to assume that the board of health intended to compel them to be vaccinated, bnt the acts of the board admit of no such construction. There was neither coercion nor compulsion. They were isolated and deprived of their freedom because they had been exposed to smallpox, and were liable to be seized therewith, and, by communication with others, to spread the disease. That was a legitimate exercise of the power and authority vested in the board by statute, and it was unnecessary to prescribe any conditions upon which the relators could terminate their isolation. That was done entirely for their benefit, and for no other purpose, If they availed themselves of the privileges tendered to them, their acceptance would terminate their quarantine, and their refusal would leave them in isolation until July 1, 1894, the time mentioned in the mayor’s proclamation. They refused the condition, and instituted this proceeding. The prevention of smallpox is of such paramount importance as to justify all reasonable means for its accomplishment,—in the age of the world we live in, security from the awful pestilence of smallpox by reason of the practice of vaccination as a preventive. Its efficacy has been recognized by physicians of all schools for nearly a century. Dr; Jenner, its discoverer, was immortalized by its introduction. Vaccination was accepted and practiced by the entire civilized world within six years from the time of its first discovery, and it has been in universal use from that time until the present. It is stated in the return, and the statement is uncontradicted, that it is a well-established scientific fact that vaccination is a preventive of smallpox in the person vaccinated, and it has been for many years demonstrated that thorough vaccination of persons in crowded centers is indispensable to the prevention of epidemic smallpox. This statement, as we have narrated, is in accord with the advanced thought of the age in which we live, and it receives our concurrence, We have decided at the present term of this court that vaccination may be required as a condition precedent to the admission of children to the common schools of the city of Brooklyn. In re Walters, 65 St. Rep. The propriety and wisdom of the course pursued by the board are beyond criticism. Its acts have all been within the lines of statutory authority, and they have been discreet and in evident good faith, in the presence of an impending pestilential danger.

The order should be reversed, with $10 costs and disbursements.

Pratt, J., concurs. Cullen. J., not voting.


text:
    In the Mattter of the Application by Charles A. Walters for a Writ of Mandamus.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Vaccination—Schools—Contitutional law.
    Section 200, chap 661 of 1893, prohibiting the admission of any person not vaccinated to any of the public schools of the state, is constitutional.
    2. Same—Mandamus.
    A mandamus is improperly directed to the principal of a public school to compel him to admit pupils in violation of the rules and regulations of the board of education.
    Appeal from an order denying an application for a writ of mandamus.
    The opinion of Mr. Justice Bartlett at special term is as follows:
    The avowed purpose of this application is to test the constitutionality of section 200 of the public health law of this state, which provides that no child or person not vaccinated shall be admitted or received into any of the public schools of the state, and commands the trustees or other officers having the charge, management or control of such schools to cause this prohibition to be enforced. Laws 1893, c. 661, § 200. Upon the oral argument, I expressed the opinion that this enactment was a valid exercise of the police power of the legislature, and that view has only been confirmed by an examination of the authorities cited in the briefs of counsel. A common-school education, under the existing constitution of the state of New York, is a privilege rather than a right. It is created by legislation and subject to legislative regulation. Dallas v. Fosdiek, 40 How. Pr. 249; People ex rel. King
      v. Gallager, 93 N. Y. 438. In the case last cited, Huger, O. J., delivering the opinions of the court of appeals, declared it to be a plain deduction from the rule in the Slaughter-House Cases, 16 Wall. 36, that the privilege of receiving an education at the expense of the state, being created and conferred solely by the laws of the state, and always subject to its discretionary regulation, might be granted or refused to any individual or class at the pleasure of the state. It follows that the state can certainly exercise this discretion by debarring from attendance at the public schools such persons as are unwilling to adopt a precaution which, in the judgment of the legislature, is essential to the preservation of the health of the large body of scholars. In California there is a statute which provides for the exclusion of unvacinated children from the public schools. The constitutionality of this law was questioned in the supreme court of that state in 1890, one of the objections being technical, and the other being that the subject' of the act was not within the scope of a police regulation. Both objections were overruled, the court declaring that, as vaccination was the most effective method known of preventing the spread of smallpox, it was for the legislature to determine whether the scholars of the public schools should be subjected to it, and the legislature was justified in deeming it a necessary and salutary burden to impose upon that general class. Aieel v. Clark, 84 Cal. 226, 24 Pac. 383. To vaccinate a person against his will, without legal authority so to do, would be an assault; and it was suggested on the argument, by the learned counsel for the petitioner, that the statute of this state providing for 'the compulsory attendance of truant, children at the public schools, when construed in connection with the provisions of the public health law relative to vaccination, would have the effect of obliging a child to submit to an assault at the hands of the school authorities. No such question as this, however, arises in the present case. The only effort here is to insist upon a condition which the legislature has made a precedent to the exercise of a privilege. It will be time enough to decide whether the state can force a child to attend school, and force him to be vaccinated, as a prerequisite to such attendance, when any officer attempts such a proceeding. I may add that the point upon which this case turns is very different from that which was before Mr. Justice Gaynor, in the matter of Smith and Cummings, where the commissioner of health restrained the petitioners from their liberty until they consented to be vaccinated, although the legislature had conferred no such power upon him.
    Application denied.

      Horace Graves, for app’lt; Albert G. McDonald (Frank S. Angell, of counsel), for resp’t.
   Dykman, J.

This is an appeal from an order denying an application for a peremptory writ of mandamus requiring L. B. ■Hannaford to admit Chester A. Walters and Ada Walters' to public school No. 22. The respondent, Hannaford, is the principal of the school, and the affidavit upon which the proceeding was based states that he had refused admission to the children on the ground that they had not been vaccinated. The proceeding is against Hannaford individually, and no other parties are included as defendants or respondents. Hannaford is not an officer. He is an employe of the board of education, and subject to its control and direction. Under the rules and regulations of that board, “ when a child is presented for admission to the public schools of this city, the principal shall require a physician’s certificate that he or she has been satisfactorily vaccinated, or has had the smallpox, or. in default thereof, shall exclude the child until such evidence is provided.” The principal of the school can exercise no discretion, and a mandamus directed to him would accomplish nothing. He can admit no child in violation of the rules and directions of his employer, and the application might well have been denied upon that ground. Instead of taking that course, however, the judge who heard the application considered the same upon the merits. We are entirely satisfied with the disposition of the matter by the judge below, and for the reasons which he has assigned therefor; and the order should be affirmed, on the opinion of the judge who made it, with $10 costs and disbursements.

All concur.


author: Pratt, J. Brown, P. J.

text:
    George Alger, App’lt, v. Metropolitan Life Insurace Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895).

    Insurance—Life—Erroneous statement.
    Where the applicant truthfully answers the questions propounded in the application, the mistake of the company’s medical examiner in formulating such answers will not avoid the policy.
    Appeal from a judgment, entered on the verdict directed by the court in favor of defendant

      Roswell H. Carpenter, for app’lt; C. N. Bovee, Jr., for resp’t.
   Pratt, J.

The printed application for insurance contained the inquiry whether any relative had died of consumption or any pulmonary disease, and the answer, in the handwriting of defendant’s medical, examiner, was “No.” It is now stated that 20 years ago the brother of the insured died of pneumonia, on which ground the plaintiff was nonsuited. Evidence was given to the effect that when the examiner questioned the applicant she replied that she did not know of what disease her brother died. The examiner to whom defendant had confided the duty of making the inquiries wrote down the answer, doubtless with honest intention; for the form of the question was such as to direct the mind especially to consumption, and when the sister stated that she did not know of what disease the brother died, the examiner may well have supposed that, had he died of a lingering disease like consumption, the sister would have known the fact. But, whether the mistake of the examiner was in a measure excusable or not, the applicant was not chargeable with the error. Her duty consisted in truthfully answering the questions propounded. Very few applicants for insurance possess sufficient knowledge of medical terms to cor-, rectly formulate answers to the interrogations. Insurance Co. v. Wilkinson, 13 Wall. 222; O'Brien v. Home Benefit Society, 117 N. Y. 310; 27 St. Rep. 326; Flynn v. Equitable Life Assurance Soc., 15 Hun, 521. That is the business of the examiner. The applicant must necessarily rely upon him to do that properly. In the class of people for whom the industrial insurance of defendant is carried on, it is doubtful if one in twenty would know that pneumonia is a pulmonary disease. Judgment reversed, and new trial ordered, costs to abide event.

Dvkman, J., concurs.

Brown, P. J.

(dissenting).—This action was brought to recover upon a policy of insurance issued by the defendant, upon the life of Lucy E. Dalton. The written application for the insurance, which .by the terms of the policy was made a part of the contract, and the answers and representations.therein warranted by the insured to be strictly correct and wholly true, contained the following question : “Didparents, grandparents, brothers, sisters, uncles, or aunts ever have consumption, or any pulmonary * * * disease ? ” To this question the answer given was. “ No." It appeared from the proofs of loss, made and certified to by the plaintiff and delivered by him to the defendant, that the insured’s brother died of pneumonia. The policy further provided that it should be void if any of the representations upon which it was issued should be untrue. At the close of the plaintiff’s case, the court directed a verdict for the defendant, and from the judgment entered thereon plaintiff has appealed. Courts take judicial notice of the meaning of words and phrases, arid of such matters of common knowledge and science as are known to persons of ordinary understanding and intelligence. No evidence was necessary, therefore, to define the meaning of the word “pulmonary,” or the character of the disease called “pneumonia." It was permissible for the court to take notice that the brother of the insured had died of a pulmonary disease. The statement contained in the proofs of loss that the brother of the insured had died of pneumonia, in the absence of any other evidence upon the subject, conclusively established a breach of the condition of the policy. Helwig v. Mutual Life Insurance Co., 132 N. Y. 331; 44 St. Rep. 439 ; Lund v. Masonic Association, 81 Hun, 287 ; 62 St. Rep. 287. The appellant contends that it was error for the court to compel him to introduce the application for the insurance as a part of his case. We do not consider this exception a material one. The evidence is now before the court, and it is apparent that the plaintiff cannot recover in any event It is of no importance, therefore, which party put . in the application. The statements therein were warranties, and their untruth rendered the policy void. The judgment should be affirmed, with costs.


author: Brown, P. J. Dykman, J.

text:
    Mary M. H. Clark, Resp’t, v. Augusta Clark, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Judgment—Relief.
    The conclusions of law of the justice, before whom a case is tried, are, in the absence of any exceptions on the part of plaintiff, the measure of her recovery, and she is not entitled to a judgment awarding her a greater measure of relief.
    2. Same.
    The special term has, upon an interlocutory reference, the right to modify its conclusions of law upon the presentation of the referee’s report, and may award such judgment as is proper ; but, in the absence of any finding of law more favorable than those contained in the decision, the judgment should conform to the decision and will, on appeal, be modified accordingly.
    3. Dower—Remainder.
    A wife acquires no inchoate right of dower in land, inherited by her husband, if his estate is in remainder only, and not in possession.
    4. Same.
    If the title to the real estate came to him subject to a lien, her dower therein is also subject to such lien.
    5. .Contract—Construction.
    Where deeds are given at the same time and form part of the same transaction, they must be read together and construed with reference to the intention of the parties.
    Appeal from a judgment in favor of the plaintiff.

      Walter C. Anthony, for app’lt; Joseph M. Pray, for resp’t.
   Brown, P. J.

The plaintiff is the widow of George H. Clark, deceased, and, by the judgment appealed from, has been awarded dower in the real estate described in the complaint. George H. Clark died May 21, 1888, seised of the property in question, and by the answer the right of the plaintiff to dower in the land was not denied. The defendant set forth in her answer the history of the title to the land from the death of her husband, George Clark, in 1871, and claimed a lien thereon as security for the payment of one-half the amount of an annuity bequeathed to her by her husband's will, which lien, she asserted, took precedence of the plaintiff’s dower; and in her answer she expressly admitted a willingness to consent to the admeasurement of the dower whenever her claim on the land was adjusted and secured. In the face of the facts set up in the answer and proven upon the trial, and which are not in dispute, I am unable to see the application to the case of the argument of the appellant’s counsel. It may be true, as he claims, that under the will of George Clark, the defendant’s husband, the trust thereby created did not absolutely determine upon the coming of age of the youngest child, but continued during the lifetime of the defendant. Whether such would be the proper construction of the will, with reference to the real estate, would depend upon the sufficiency or insufficiency of the personal estate to provide for the defendant’s annuity. But all questions relating to a trust in the estate were eliminated when the parties partitioned the land, on February 7, 1883. Prior to that date the two youngest children of George Clark had become of age, and had died. The only parties interested in the estate were the plaintiff’s husband and his sister, Mrs. Townsend, and the defendant. All estates and interests in the land were vested in these three persons, and they voluntarily entered into and executed an agreement to settle the whole estate. The land in question in this action was conveyed to George H. Clark, and if there was any trust existing therein prior to February 7, 1883, it was destroyed by the conveyance of that date. By the deed then delivered to the plaintiff’s husband, he acquired an absolute estate, in fee simple, and the plaintiff, an inchoate right of dower. This settlement also eliminated any question that might arise from the conversion of some of the personal property into land by the foreclosure of mortgages. That question was, in a legal aspect, important to no one except the defendant; but, as her annuity was one of the subjects of the settlement by the agreement then executed, she surrendered all claims she had upon the estate, and accepted the personal obligation of her son and daughter for its payment, with such security as the agreement with them gave to her. In determining this appeal, therefore, we may start from the date of the settlement, and the question presented is not whether the plaintiff has dower in the land. That is a fact beyond dispute, expressly admitted on the record. The sole question is whether her dower is, in whole or in part, subject to any prior lien in favor of the defendant; and we are of the opinion that, as to the one-half of the land, the plaintiff’s dower is the superior estate, but, as to. the other half, it is subject to the defendant’s claim. The learned judge who heard the case at special term found the following conclusions of law: “(1) That the plaintiff is entitled to dower, as aforesaid, in the land and premises in the complaint mentionedand this dower, so far as it applies to land devised absolutely to George H; Clark by his father,- is not chargeable wiih any part of the said seven hundred and fifty dollars annuity to the defendant Augusta Clark, unless the said defendant first snow that there was an insufficiency of personnl property left by the deceased husband of said Augusta Clark to comply with the provisions of the will of her said husband respecting the payment to her of fifteen hundred dollars per annum. (3) That, by virtue of said will, George H. Clark, the plaintiff’s husband, became seised of an undivided fourth part or interest in the real estate whereof said George Clark died seised, and that such interest vested in possession at the instant the youngest child of said George Clark attained the age of twenty-one years. (4) That such interest or share in said real estate continued so vested in said George H. Clark during his marriage with the plaintiff in this action, and her right of dower attached to such interest, and became a vested right at the death of said George H. Clark. (5) That the plaintiff is entitled to dower in the remaining portion of the lands and premises mentioned in the complaint, a life estate in which was sold to the husband of the plaintiff by the defendant, Augusta Clark, but this dower is chargeable with its just and ratable proportion of said seven hundred and fifty ■dollars annuity. (6) That the right of the defendant, Augusta Clark, to her annuity, continues from year to year, and whatever has not been paid her in one year should be made up afterwards, and the referee to take and state the account should ascertain and report the amount of such arrearages.”

And amplifying these findings, in his opinion, he stated:

“The plaintiff is therefore entitled to recover dower in the undivided fourth that her husband inherited from his father, and this dower is not chargeable with any part of the annuity to the widow under the will, unless the defendant first shows the insufficiency of the personalty to satisfy that annuity. The remaining interest in'the realty of which plaintiff’s husband died seised was acquired by inheritance, or by deed from his brother and sister and mother.

In that share, till the mother’s deed, there was always an outstanding life estate in the mother ; and hence, till then, there never was seisin in the husband, or dower in his wife. But the deed from the mother expressly charges the annuity on the real estate conveyed or released. Therefore, whatever was the effect of the will, this share acquired by this deed must bear its proportion of the annuity. The husband’s only right in such share being in remainder, he could subject it to whatever liens he saw fit, regardless of the claims of the plaintiff.”

The plaintiff took no exception to these conclusions, arid it is very obvious, therefore, that they measure the right of her recovery, and she was not entitled to a judgment that awarded to her a greater measure of relief.

A reference was ordered, to ascertain the value of the land, and to compute the value of the plaintiff’s dower, and the damages for withholding the same, and other matters of fact, of which it was necessary the court should be informed before a judgment could be granted; and, upon the coming in of the referee’s report, judgment was entered which adjudged that “the plaintiff is entitled to dower in all the real estate described in the complaint, and that said dower is entitled to precedence over all the claims of defendant, Augusta Clark, in and to said real estate, or any part thereof.” By reference to the opinion of the learned judge, filed upon entering this judgment, the judgment appears tobe based upon the conclusion that the referee had found that the plaintiff’s claim took precedence over the defendant’s claim,, and was a first lien, not only upon the estate which plaintiff’s husband had acquired from his father, but upon all the remaining interests which he had acquired otherwise, and that, as there was personal property left by George Clark sufficient to provide for the defendant’s annuity, she had no claim therefor upon any part of the lands which was superior toi the plaintiff’s dower. I am unable to find in the referee’s report any finding that the dower was prior to the annuity. No question of that kind was referred, and such a determination was directly opposed to the findings of the court, which I have already quoted. The defendant excepted to the conclusions I have quoted, with the exception of the sixth, and the question of the rights of tfie parties is therefore properly before us. The special term undoubtedly had the right to modify its conclusions upon the presentation of the referee’s report, and award such a judgmerit as was proper; but, as the case stands, there is no finding of law more favorable to the plaintiff than those quoted, and in the absence of any the judgment should conform to the decision, and be modified accordingly. We think, however, that the court was right in its first decision, and that the „ findings quoted correctly expressed the law applicable to the facts proven.

The plaintiff was married to George H. Clark, in 1879. At that time he was possessed of an estate in the lands in question of an undivided one-quarter, which he had acquired under his father’s will. That estate was unincumbered, except by the provisions of his father’s will,which created the defendant’s annuity; and whether that created an incumbrance thereon depended upon the insufficiency of the personal property to provide for the payment of the annuity. The referee has found that there was sufficient personal estate to provide for the defendant’s claim, and that conclusion has ample support in the evidence. As to that share, therefore, plaintiff established the priority of her claim. At the time of the plaintiff’s marriage, her husband had other estates in the land, amounting to an undivided one-quarter, which he had inherited from His deceased brother and sister ; but they were estates in remainder, and not in possession, and plaintiff acquired no inchoate right of dower therein. She had no rights therein which interfered with her husband in dealing with those estates, and he could subject them to such lien as he chose. On February 7, 1883, the parties made a settlement of the estate. The rights of the several parties in and to the lands owned by them were at that date as follows : George H. Clark had an estate in fee simple in an undivided one-quarter, subject to the inchoate dower of the plaintiff, his wife, and an estate in remainder in an-undivided quarter, subject to the life estate of the defendant, his mother. Mary A. Townsend had similar estates in the land; one quarter being subject to the marital rights of her husband, and the other to the life estate of the defendant. The defendant had a life estate in an undivided one-half of the lands, which she had acquired from her deceased children, and she had a claim upon the estate for the annuity under her husband’s will of $1,500. The executors of the estate of George Clark and Mr. and Mrs. Townsend conveyed the premises described in the complaint to George H. Clark, and other land was conveyed by the said executors and plaintiff and her husband to Mrs. Townsend. These conveyances expressed as a consideration “the settlement and the division of the estate and property” of George Clark, and each contained the following provision : ”

“This conveyance does not release or extinguish'the lien of Augusta Clark on said lands from the payment of the annuity provided for, and directed to be paid to her, by the will of said George Clark, deceased.”

At the same time, George H. Clark, Mrs. Townsend, and the defendant executed a deed, which, after reciting (1) that the defendant was entitled to an annuity of $1,500, pursuant to the will of George Clark, and to have so much of the property of said George Clark set apart as would produce such annuity; (2) the settlement ■ and division of the estate in consideration thereof, provided that defendant would receive one-half of said annuity from George H. Clark, and one-half from Mrs. Townsend, and that she should have a lien, as security for the payment of said sum, “upon the respective portions of real estate and property of said George H. Clark and Mary A. Townsend, inherited from their father, and divided by this settlement.” It further provided for the enforcement of payment of the annuity in case of default, and the transfer of defendant’s right, title, and interest in the property to said George H. and Mary for the sum of $5,000.

These three instruments must be read together, and construed with reference to the intent of the parties ; and, so read, it is plain that the purpose was to substitute for the rights which defendant had under the will of George Clark, her husband, the personal obligation of her son and daughter to each pay one-half of the annuity, and to secure such obligation by a lien upon the lands conveyed to each. That was a valid agreement, and the lien was enforceable against the plaintiff’s husband. It was in the nature of a purchase-money mortgage, and the plaintiff’s rights are subject to it. Her claim to dower can only be asserted through her husband’s title, and, as that title came to him subject to the lien, her dower is subject to it also. Such, undoubtedly, was the effect of the agreement upon the undivided one-half of the property in which the defendant had a life estate; and such, in our opinion, was its effect on the undivided one-quarter owned in fee by Mrs. Townsend. It was a part of the consideration of the conveyance of the defendant's interest in the land that she should have a lien on all the land which was divided by the settlement; and the only thing which postponed the lien of the annuity to the plaintiff’s dower in the share which George H. Clark acquired under his father’s will is that the plaintiff executed no paper, on the settlement, which deprived her of her dower in that share. The only paper executed by her was the deed to Mrs. Townsend. She is not a party to any instrument affecting any of the land described in the complaint, and consequently cannot be deemed to have released a dower right acquired previous to the settlement. But, as to the land acquired by the deed of February 7t’n, her dower is subject to the lien then created as security for defendant’s annuity. The land described in the complaint now stands for all the undivided shares which George H. Clark had or acquired in his father’s estate, either by the will or the deed of February 7; and it follows that, as to one-half of that land, plaintiff’s dower is the superior estate, and as to the other half, it is subject to the lion of one-half of the defendant’s annuity. The judgment should therefore be modified, and drawn in accordance with §§ 1622-1624 of the Code of Civil Procedure. The amount of damages for withholding plaintiff’s dower should be reduced to $1,-097.89, The property should‘be sold by the referee, discharged from the defendant’s lien, and he should make a report of the sale as required by § 1623 of the Code of Civil Procedure. Upon the confirmation of such report, if the defendant elects to accept a gross sum in lieu of her annuity, the court should ascertain the sum that would equal the value of the annuity, and one-half thereof should be paid to her. The gross sum that would be equal to the value of the plaintiff's dower should then be ascertained and paid to her, and the balance remaining should be paid to the defendant. In case the defendant does not elect to accept such gross sum, then a sum sufficient to produce, at 5 per cent, interest, an annuity of $875, should be set apart from the proceeds of the sale, and invested under the direction of the court, and theincome paid to defendant during her life. The gross sum which would equal the value of plaintiff’s dower in said sum so set apart, and also in the balance of the proceeds, should then be ascertained. The latter sum should be paid to the plaintiff forthwith ; and the former, on the death of the defendant. The balance of the proceeds should be paid to tho defendant. So modified, the judgment should be affirmed, without costs of appeal.

Pratt, J., concurs.

Dykman, J.

(dissenting). The case shows that George Clark, a resident of Orange county, died in 1871, leaving real and personal estate, and leaving á last will and testament The testator' left four children and. a widow, the appellant herein. By the terms of the will, his widow was given a life estate in the homestead, and the residue of the estate, real and personal, was given to his executors, as follows:

“ Third. I give, devise, and bequeath unto my executrix and' executors all the rest, residue, and remainder of estate, real and persona], so long as my youngest child shall live, but not after the majority of such child shall be reached, upon trust to take charge and. possession of the same, and to collect and receive the rents, issues, and profits of the realty, and the principal profits and increase of the personalty, and to invest, manage, expend, and control the same as they may deem best, and out of the rents, issues, increase, and profits thereof to pay to my wife the sum of one thousand and five hundred dollars per year, in half-yearly payments, commencing immediately after my decease, in addition to the property now occupied as my residence, and then, out of the residue of such rents, issues, and profits to make such advances to my children, or to expend for them, respectively, such moneys as may he necessary and proper for their support and education, and for their settlement in life, or advancement in business. If such rents, issues, and profits shall prove insufficient therefor, such deficiency shall be supplied out of the principal of the said personalty. Upon the death or majority of my youngest child during the life of my wife, so much of my property shall be set apart as will produce an annual income of one thousand and five hundred dollars, which be paid to my wife, during her life, in half-yearly payments; and the rest, residue, and remainder of my estate shall be divided among my children, viz.: Mary Augusta, George Horatio, Martha Louisa, and Robert Sterling, so that such advances and support as they may respectively have had, as hereinbefore directed, shall make equality of partition among them. The provision hereinbefore made for my wife is intended to be in lieu of her dower and distributive share of my estate.”

The youngest child of testator was Robert S. Clark, who became 21 years of age in 1876. The executors did not then set apart so much of the testator’s property as would produce an annual income of $1,500 for the testator’s wife, and very soon great changes were made in the title to the estate. The youngest child died within a few months after arriving at maturity. He left a will by which he gave his mother, the defendant, the use of his share in his father’s estate for life, with remainder to his brother and sisters. . Within a year subsequent to the death of the youngest child, another of the children, a girl, died intestate and without children; and thus her share descended to her mother, brother, and sister, as provided by law. The entire estate became thus invested in George H. Clark and his sister, Mrs. Townsend, subject to the rights of their mother. In 1879, George H. Clark married the plaintiff; and on the 7th of February, 1888, the parties, by their several conveyances and agreements, changed the whole situation. The executors of George Clark and Mrs. Townsend and her husband conveyed what was accepted as one-half of the real estate to George H. Clark; and the executors, at the same time, by a deed in which George H. Clark and his wife joined, granted the other part of the real estate to Mrs. Townsend. Each of the deeds reserved the defendant’s rights as follows:

“ This conveyance does not release or extinguish the lien of Augusta Clark on said lands from the payment of the annuity provided for, and directed to be paid to her, by the will of said George Clark, deceased.”

On the same day the defendant, reciting that the children had divided the estate and property of their father between them, agreed that she would receive one-half the annuity from each of them, and that she should have a lien, as security for the payment of the same, “ upon the respective portions of the real estate and property of said George H. Clark and Mary A. Townsend, inherited from their father, and divided by this settlement, for the punctual and faithful performance on their part of this agreement, and the payment by each of them of said sum of seven hundred and fifty dollars at the time or period of time required by said will.” The case shows that within a few weeks after these deeds the estate was finally settled by the surrogate of Orange county, and the executors were discharged from their duties under the will. Under this arrangement, each of these parts of the lands conveyed to George H. Clark and to his sister- became severally chargeable with the payment of $750 to the defendant yearly. The failure to make a fund to produce the sum became inoperative, and by the agreement of all parties interested, including plaintiff and defendant, the annuity was payable out of the land. In 1888, George H. Clark died, and left all his property to his mother, the defendant, by will. She has not been able, from the use of the land, to realize the amount of her annuity from it. The claim of the plaintiff is not superior to the payment of the balance unpaid, nor is it superior to the payment of the annuity in the future. Defendant was given, by devise from her son, a title charged with the payment of an annuity of $750. His personal estate had nothing to do with it. The land was mortgaged, and the defendant is entitled to her security upon it. The judgment should be reversed, and a new trial granted, with costs to abide the event.


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    George Miller, Resp’t, v. John King et al., as Receivers, etc., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Evidence—Declarations of agent.
    The declarations of a ticket agent, when made in the line of his duty, bind the company.
    3. Assault—Ejectment from train.
    To warrant a recovery in an action for wrongful ejectment from a train, it is not essential that plaintiff should have been violently assaulted.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      W. A. Parshall (Lewis E. Carr, of counsel), for app’lts; John W. Lyon, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial. The suit was brought for an unlawful ejection of the plaintiff from the car of the defendants, the plaintiff being a passenger.

The first objection made by the defendants is that plaintiff was permitted to amend his complaint upon the trial. This was not error, as the cause of action was not changed, and the defendants were not surprised or prejudiced thereby.

Prior to purchasing a ticket, the plaintiff had been told by the ticket agent that the train stopped at a place upon the line called “ Sparrowbush,” where he desired to get off; and he accordingly bought a ticket for that place, and took his seat in the car, where, •soon after the train started, the conductor came, and examined and punched the ticket, and returned it, and gave him no notice that the train did not stop at the point of destination expressed upon the ticket Before arriving, however, at this point, the train stopped at a terminal (Port Jervis) of the divisions of defendant’s line, where a change of conductors took place. The train proceeded, and soon after it started the new conductor came in the car, and took up plaintiff’s ticket, and informed him that the train Aid not stop at said Sparrowbush, and that he must get off the .train at once. We think that the declarations of the ticket agent were not only competent evidence, having been made in the line ■of his duty, but that the defendants are bound by them. Nelson v. Long Island Railroad Co., 7 Hun, 140; Curtis v. Avon, G. & M. M. Railroad, 49 Barb. 148. The declarations of the ticket agent formed a part of the contract. He was there to sell tickets and give information, and he must be presumed to be clothed with all the power necessary to perform the functions of his office.

As to the ejection of the plaintiff from the car, it was not essential he should have been violently assaulted, to warrant a recovery. The conductor had charge of the car, and had the physical means at hand to eject him; and stopping the train and ordering him to get off was an ejection, in the eye of the law.

We see no answer to the claim that there was a plain breach of contract, of which the ticket was evidence. The defendants did not carry him as far as Sparrowbusb, but, without any excuse whatever, put him off of the car while his contract was not completed. It would have taken no longer to stop the train at Sparrowbush than it did where plaintiff was ejected. No rule was offered in evidence to show that, when a person holds a ticket to a place where a train does not stop, he can be put off at discretion at any point before arrival at the point of destination. Under all the circumstances, the conductor had no right to eject the plaintiff, and the same was unlawful, Elliott v. N. Y. C. & H. R. Railroad Co., 53 Hun, 78; 24 St. Rep. 825; Martin v. N. Y. C. & H. R. Railroad Co., 1 St. Rep. 738; Hayes v. Railroad Co., 20 Wkly. Dig. 227; and the plaintiff is entitled to damages for the indignity and humiliation suffered thereby (Sedg. Dam., 8th eti., § 865; Hamilton v. Third Ave. Railroad Co., 53 N. Y. 25.

After a careful examination of the record, we find no exception pointing to error sufficient to warrant us in disturbing the judgment. The damages are not excessive.

Judgment affirmed with costs.

All concur.


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    Lawrence R. Suydam et al., Resp’ts, v. Frederick W. Dunton, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Assignment—Liability of assignee.
    The assignment by the vendee of a contract to convey land does not render the assignee liable to the vendor for the purchase money.
    3. Easement—Abandonment.
    Ceasing to use an casement, accompanied by an act clearly indicating an intention to abandon the right, lias the same effect as a release without reference to time.
    S. Contract—Dependent covenants.
    The rule as to dependent covenants requires only that tender of the deed precede an action for the purchase money.
    Appeal from a judgment in favor of plaintiffs.

      F. H. Van Vechten, for App’lt; Hoadly, Lauterbach & Johnson (F. R. Minrath, of counsel), for Resp’ts.
   Dykman, J.

This is an appeal by the defendant from a judgment entered upon the decision of a judge of this court in favor of the plaintiffs, against the defendant. The findings of facts and conclusions of law are full and satisfactory, and, with the opinion of the trial judge, render any enlargement here unnecessary. The judgment should be affirmed, upon the opinion of the court below, with costs.

The opinion of Mr. Justice Brown at special term is as follows :

The parties having agreed upon the facts of this case, it is necessary only that I state my conclusions therefrom: ' The defendant has never performed his agreement, and, the executors having tendered a proper and sufficient deed for the property, plaintiffs are entitled to recover the damages sustained, unless that right has been lost by reason of some of the facts alleged as a defense. Upon notice to the defendant, the property was sold at public auction for $48,830.25, and that sum is agreed upon as the “fair market value” of the farm at the time of the sale. * The difference between that sum and the purchase price named in the contract of sale, together with the expenses incurred by the executors, make up the damages sustained.

The main defense relied upon is that based upon the judgment in the case of Granger v. Suydam's Ex'rs. That judgment is not a bar to this action. Granger did not, in the assignment to him by defendant, assume the obligations of the contract, and the executors could not have enforced it against him. He was not liable for the purchase money, because that was defendant’s debt, and Granger could be liable for it only in case he promised to pay it in writing. Bor the same reason, he was not liable for specific performance. The fact, therefore, that the executors asked to amend their complaint in that action, and prayed for specific performance, which the court denied, is not a defense to an action on the contract by the plaintiffs, as the assignees of the executors against the defendant. The utmost that can be said upon this-proposition is that the executors sued a person not liable to them. But this did not preclude .them from maintaining an action against the right party. The assignment neither bound Granger to noi; released the defendant from the obligation of the contract. • Its. sole effect was to entitle Granger to demand and receive the performance of the contract of the executors. He stood in the defendant’s place, and his tender of the installment of the purchase money in April, 1892, may be considered in this action as made, on defendant’s behalf. If the executors were not at that time able to perform their contract on their part, and convey a good title, then they were in default, and the agreement o was broken. This question depends upon the existence or non-existence of the right of way over the farm. The facts in relation to that right of way are set forth in the statement, 16th to 24th subdivisions, inclusive, from which it appears that Isaac D. B. Suydam, and, after his death, his heirs and executors, had been, since 1861, in the continued open, adverse occupation of the laud covered by said right of way, under claim of ownership, and under such circumstances as warrant the conclusion that it had been abandoned and surrendered by the owner of the adjacent farm. Under these facts, ther.e was no incumbrance. A cessor to use, accompanied by an act clearly indicating an intention to abandon the right,, has the same effect as a release without reference to time. Washb. easem. (4th ed.) p. 707; Snell v. Lcvitt, 110 N. Y. 595 ; 38 St. Rep. 611; Welsh v. Taylor, 134 N. Y. 450; 47 St. Rep. 653, and cases cited.

It is not a defense that there was in April, 1392, an apparent incumbrance of this character upon the farm. It must be shown to exist as a fact; otherwise it does not justify a refusal to perform the contract I find as a fact, therefore, that there was no incumbrance upon the land, in April, 1892, when the second installment was due, and that the executors were at that time ready and willing to perform. They were not bound at that date to tender performance; it is sufficient that that be done at the maturity of the final payment. The rule as to dependent covenants requires only that tender of the deed precede an action for the purchase money. There is no defense to the action, and the plaintiffs are entitled to judgment for the sum of $25,425.58, with interest from December 2, 1893.


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    Delia Glassey, Resp’t, v. Metropolitan Life Insurance Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)
    Insurance—Life—Insurable interest.
    Where the applicant causes the policy to he issued "in favor of another, it is, in legal effect, the same as though issued to the applicant and by him assigned, and the objection of no insurable interest cannot prevail.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial

      Arnoux, Hitch & Woodford (C. N. ,Bovee, Jr., and William H. Arnaux, of counsel), for app’lt; Baldwin F. Strauss (Almet F. Jenks, of counsel), for resp’t.
   Pratt, J.

The provision in the policies for forfeiture in case of nonpayment of premiums was for the benefit of the company, and could be waived. The evidence of waiver was properly submitted to the jury, and the verdict was justified by the evidence. The acts of the agents from which waiver was implied were within the scope of the duties of the agents, and their legal effect does not depend upon the contract between the parties.

The objection of no insurable interest has no validity. One may insure his own life, and the policy, when issued, will be valid in the hands of the assignee. In the case at bar the person insured made the application, and caused the policy to be issued in favor of the plaintiff. In legal effect, that was the same as if issued to the person whose life was insured, and by her assigned. The assignment was eliminated,—nothing more. The objection of no insurable interest is somewhat ungracious, after the company, with full knowledge of the facts, has accepted the premiums, and in the present case cannot prevail.

All concur.


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    The People ex rel. Horace K. Hill, App’lt, v. Arthur J. Mace et al , as Board, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Municipal corporation—Officers —Removal.
    The fact that the street commissioner filled in places on a street, which had been recently graded but had sunk-by reason of frost, does not sustain the charge against him that he disobeyed "an order of the board of trustees, that no new work should be begun without its direction.
    3. Same.
    A statement by such commissioner that he would not obey a certain, resolution of the board of trustees, taken in connection with the fact that he did obey it, is not a sufficient cause of misconduct to warrant his removal from, office.
    Certiorari to review the action of the board of trustees, in removing relator from the office of street commissioner.

      J. W. Bartram, for relator; Isaac N. Mills, for def’ts.
   Pratt, J.

This is a certiorari brought to review the action of the defendants, as trustees, ip removing the relator from office as street commissioner. The facts need not be stated at length, further than to say that the charge was misconduct in office. The first charge upon which he was found guilty reads as follows :

“ At a meeting of the board of trustees, held on the 14th day of June, 1894, charges were preferred against the commissioner as follows: ‘I do hereby prefer charges of misconduct in office against H. KL Hill, street commissioner of the village of Williams-bridge, as follows: (1) That he has disobeyed the resolution passed by the board of trustees of the village of William abridge at an adjourned regular meeting of the said board of trustees, held in the town hall, May 24, 1894, commanding him, among other things, that “ no work be done on any street unless authorized by this board, in that (a) on or about the 6th day of June,' 1894, without having been authorized by the board of trustees, the said H. K. Hill, as street commissioner, did commence to fill in with earth the street known as “ 11th Street,” filling in the street both east and west of the White Plains road.’ ”

Upon this charge there was a fatal variance between the proof and the charge, and a failure of proof to substantiate the charge. It appeared in the evidence that- the resolution which it was claimed the relator disobeyed, and upon which the charge was based, and which was served upon the relator, was as follows :

“ H. EL Hill : By a resolution passed last night, you were ordered to make written" reports at every regular meeting of the board of all work done since previous meeting; the number of men, teams, and carts employed at date of report; also to report when any street is completed; and. you are further ordered to begin no new work on any street without orders from the board of trustees.
: “ By order of the board, Egbert Wallace,
Village Clerk.”

So that the order was that no “ new” work on any street should be begun without orders from the hoard of trustees. The fact turned out to be that a trifling amount of work was done on Eleventh street which had never been finished. It was not new work, and was so understood by the relator. It was a slight repair upon a street that had recently been graded, that had sunken in places by reason of frost.

The only other charge upon which he was convicted is the following :

“(4) That on the 7th day of June, 1894, when the board of trustees, at a meeting thereof, passed a resolution 1 that the street commissioner is hereby ordered to stop digging the cellar at new schoolhouse, and also supplying stone to the contractors for that building,’ and said resolution was communicated to him by the president pro iem, of the said board of trustees, the said B. K. Hill, street commissioner, openly, before said meeting of the board of trustees, did refuse to obey the said resolution.”

In this connection it is admitted by the respondents, and made a part of the case, as follows, as to the above charge:

“It is also admitted that th.e relator did not dig or cause to be dug from the cellar at the new schoolhouse, and did not supply any stone to the contractor for that building after the 7th day of June, 1894, the date of the passage of the above-named motion or the resolution (referring to the resolution upon which the above charge was based), but that he complied strictly with the instruction in said resolution contained.”

All, therefore, that is left of the second charge is that, being asked by the president of the board, he “openly, before said meeting, did refuse to obey the said resolution but it is admitted above that he did obey the same to the letter. The circumstances under which that statement was made, taken in connection with the fact that he did obey it, do not make it sufficient cause of mis - conduct to warrant his removal from office. The words were spoken under exasperating circumstances, and while the relator was laboring under excitement of anger and a sense of indignity, and was not intended as a refusal to obey all lawful orders of the trustees. But merely saying what he did upon this occasion does not constitute neglect, malfeasance, or misfeasance in office, and there was no authority to remove shown. In order to remove a person from office, there must be found acts or omissions relating to his office; some dereliction, neglect of duty, or incapacity affecting his general character and fitness for office. Throcp, Pub. Off. § 866; People ex rel. Munday v. Fire Com'rs, 72 N. Y. 445 ; People ex rel. Sims v. Same, 73 id. 437; People ex rel. Keech v. Thompson, 94 id. 451.

To go back to the first charge, it is proper to remark that there is some confusion in the evidence, as it does not clearly appear who was in the habit of giving orders to the street commissioner, whether the committee on highways, the board of trustees, or whether the commissioner looked to the by-laws printed for the village for instruction. He had been instructed previously to repair this street, and there is no proof whatever that he either willfully or knowingly ever disobeyed any order of the board of trustees. The judgment should be reversed, and. the relator restored to office.

All concur.


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    Mary E. Bates, as Administratrix, etc., App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Negligence—Contributory.
    A person who, while crossing a track on foot, fails to notice an approaching train, which he could have both seen and heard, is guilty of contributory negligence.
    Appeal from a judgment of nonsuit.

      A. M. & G. Card, for app’lt; Frank Loomis (Robert F. Wilkinson, of counsel), for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon a nonsuit at the circuit. The action was for the recovery of damages resulting from the death, of the plaintiff’s intestate, which was caused by a train of cars upon the railroad of the defendant. The course of the railroad at the place of the accident is substantially north and south, and the highway which crosses it there runs nearly east and west.. The deceased was drawing ice in a lumber box wagon drawn by two horses. He was coming with a load of ice from the west, walking on the north side of bis wagon, near the forward end, holding the horses’ lines in his left hand, and resting his right hand on the side of the wagon, and holding his whip in his right hand also. As he approached the track, he looked both ways, and continued to drive on. When he was upon the track, which is single at that place, an engine with a pay car came from the south, struck the deceased, and inflicted injuries upon him, from which he died in a few days. The complaint of the plaintiff was dismissed at the trial of the close of the testimony on her behalf, upon the ground that the evidence failed to show freedom from contributory negligence on the part of the deceased. The facts seem to justify such dismissal. The deceased was walking, and thus had entire control of his own movements. He could stop and recede instantaneously at his volition. One of the witnesses for the plaintiff testified that she saw him first when his horses’ front feet were just stepping upon the track. Of course, he was then about 10 feet from the track. The witness went out of her house, and waved a towel at the deceased, and said “Keep backbut she could not attract his attention. She heard the train, and another witness heard it also. It is impossible, in view of that testimony and the other facts and circumstances, to escape the conclusion that the deceased went heedlessly upon the track, and brought the calamity upon himself. He could see a considerable distance down the track, and could have heard the noise of the approaching train. That he did not do so is proof of negligence. The judgment should be affirmed, with costs.

All concur.