text:
    In the Matter of the Application to Compel WILLIAM O’BRIEN, Executor of JANE BOYLE, Deceased, to Account.

      Right of the next of kin to compel an administrator to return assets of the intestate converted, by hvm — when the right cannot be enforced against the administrator’s executor — liability of an executor to be compelled to account after the estate has been distributed under a decree — his liability to do so should not be determined on a mere motion.

    Jane Boyle, who had been appointed administratrix of her son Pierce, died about a year and a half after her appointment, without having rendered an account, although she had filed an inventory showing assets amounting to $3,77:3.03, She left a will by which the appellant O’Brien, was appointed lier executor, who qualified and filed an inventory showing assets amounting to $13,000. He found no fund deposited to her credit as administratrix of Pierce, nor any specific property which could he identified as received by her in that capacity. Thereafter O’Brien advertised for and paid all claims presented, filed a petition for a judicial settlement and distributed the surplus, pursuant to a decree duly made on January 3, 1882, among the four children of Jane Boyle.
    On March 14, 1884, Jane O’Brien, who was a daughter of Jane Bo e, was appointed administratrix de bonis non of the said Pierce. In December, 1884, certain grandchildren of Jane Boyle presented a petition praying the surrogate to compel O’Brien, as executor of Jane Boyle’s will, to account for the funds which said Jane Boyle had received as the administratrix of her son.
    Held, that the application was properly denied.
    That as no assets of the estate of the son were proved to have been received by O’Brien the executor, except as mingled with and composing a part of Jane Boyle’s own assets, the parties interested in the estate of the intestate had lost by the death of Jane Boyle their vested rights in the fund as owners of it, and their right to compel her to account for it, and, if it could not be found and identified, to charge her entire estate with an equitable lien for the amount thereof, and were remitted to the standing of mere creditors of her estate.
    That they were only entitled to a distributive share of the intestate’s estate, which share they had, so far as was shown, actually received under the decree entered upon the settlement of the executor’s account.
    In September, 1885, the same grandchildren moved to vacate the order denying the application upon the ground that it had been entered by default in consequence of the death of their attorney, before he had handed in his brief, as he had intended to do. although he had been heard orally by the surrogate, and the surrogate knew of his inability to submit a brief when he made the order. Upon the return of an order to show cause why the petitioner should not be allowed to submit a brief, the surrogate made an order vacating the prior order and requiring O’Brien to file an account.

      Held, that he erred in so doing, as he thereby disposed of the merits raised by O’Brien’s answer, which denied his liability to be compelled to account, upon a mere motion, while O’Brien claimed, and was entitled to, a hearing in the nature of a trial, and to have findings of fact and conclusions of law made by the surrogate.
    That the proceedings should have been dismissed as the administratix de bonis non of the intestate son was not made a party to the proceedings.
    Appeal from a decree of the Surrogate’s Court of Kings county, bearing date on the 30th day of December. 1886, settling an account.
    The appeal also brings up for review the interlocutory decree of said Surrogate’s Court, dated March 12, 1886, which compelled the appellant to render such account and set aside a previous decree made April 7, 1885, refusing to order such account. It also brings up for review an order made on the 16tb day of March, 1886, refusing to allow the appellant to introduce evidence in support of the allegations of his answer.

      Josevh A. Burr, Jr., for the executor, appellant.

      Samuel Cohn, for the petitioners, respondents.
   Pratt, J.:

Jane Boyle, at the time of her death, was the sole administratrix etc., of her son, Pierce T. Boyle, deceased, who had died intestate, leaving no children. She had filed an inventory showing assets amounting to $3,772.03. She claimed to be his creditor to the extent of $3,296.15, with interest. She had paid some $237.35 for his debts and funeral expenses since her appointment. Her claim was regularly made out and verified but it had never been judicially established, and she had never rendered an account or otherwise been discharged from the duties of her trust. It is said that she was about preparing her accounts, which had not been unreasonably delayed, when she suddenly died about a year and a half after her appointment leaving a will which was duly probated, wherein the appellant, O’Brien, was named as executor. He qualified and filed an inventory showing assets which amounted to some $13,000. He found no fund deposited to her credit as administratrix, nor does it appear that she left any specific property which could be distinctly traced and identified as having been received in her official capacity. In other words, if she had thus received such property, it must have been converted' into money or other forms of property so that its identity was lost.

O’Brien duly advertised for claims against her estate, which notice expired June 20, 1881. He paid all claims presented, filed his petition for a judicial settlement of his accounts, upon which proper citations were issued, and, on January 3, 1882, a decree was made by a proper surrogate, passing, settling the same and directing dis tribution of the surplus in his hands. In pursuance of this decree he distributed that surplus, and it is not suggested that he failed in any duty enjoined upon him thereby.

It seems that this testatrix had, at least, four children, viz., Pierce, whom she survived; Mrs. O’Brien, the wife of the executor; Patrick and Charles. Patrick died, leaving his widow, Helen, and Mrs. Green, Mrs. Williams, Catharine and Mary, his children. Charles died, leaving four children, Frances, Garret, Mrs. Tobin and Mrs. Brown. The case fails to show that either of these children died prior to the decree on the accounting hereinbefore referred to.

Some two years after tne surrogate’s decree and the distribution of this grandmother’s estate, and on March 14, 1884, it appears that Jane E. O’Brien, the wife of the executor, was appointed administratrix da bonis non of the goods, etc., of Pierce T. Boyle. In the following December (1884), the children of Patrick united in a petition to the surrogate against O’Brien, the executor of their grandmother’s will, praying that he should account for the funds which Jane Boyle, the grandmother, had received belonging to the estate of their Uncle Pierce, of which she was administratrix at her death. The children of Charles united in a separate and like petition at or about the same time. It would seem that Mr. Albert Roberts was the attorney for all these petitione.s. A citation was duly issued on these petitions returnable January 27, 1885.

The executor (O’Brien) answered these petitions setting up the foregoing facts. The issue thus joined was heard before Mr. Surrogate Bergen, April 7, 1885, and an order or decree was then made and entered denying the application to compel O’Brien to account.

Afterwards, and in September, 1885, these grandchildren made a motion before Mr. Surrogate Lott to vacate this order or decree-The theory of that application was, that Surrogate Bergen’s order or decree had been entered by default in consequence of the death of the petitioners’ attorney (Mr. Roberts). The fact was that Mr. Roberts had argued the motion orally before Mr. Surrogate Bergen, and Mr. O’Brien had also been heard orally by counsel. But the counsel had agreed to hand in briefs, and Mr. Roberts’ sickness and death had prevented that. It also appeared, however, that Mr. Surrogate Bergen knew the fact of Mr. Roberts’ inability to submit a brief, and made his order intelligently in its absence. The order to show cause by Mr. Surrogate Lott treats this order or decree of his predecessor as a default and requires O’Brien to show cause why petitioner should not submit a brief. He seems to have treated the matter as a mere default, and, on the hearing March 12, 1886, made an order vacating the prior order or decree of April seventh. This order also required O’Brien to file an account, thus disposing of the merits raised by O’Brien’s answer as upon a mere motion. The latter insisted that that hearing was in the nature of a trial of the petitioners’ right to an account, and he presented that and other questions by proper requests, which the surrogate refused even to entertain. ¥e are asked to review the propriety of his disposition of that matter. Thereupon O’Brien filed an account in which he asserted that no property belonging to Bierce T. Boyle had ever come to his hands, the fact of Jane Boyle’s inventory, her advertisement foi claims, her payment of the $237.35 of debts and funeral expenses and her claim of $3,760.41 which was more than the total inventory valuation of the intestate’s entire property.

The petitioners objected to this account, and the issue thus raised was tried. Proper requests were filed, findings were made, exceptions rvere taken to refusals and a decree was ultimately made December 30, 1886, adjudging that Jane Boyle’s claim was not valid, and that at her death she was chargeable with the amount of the inventory of Pierce T. Boyle’s estate ($3,772.03), with $1,332.31 interest; after deducting the $237.35 (without reckoning or allowing for interest on that), and that O’Brien as her executor, though not individually, was liable for $4,866.99. The ultimate object of and reason for this peculiar proceeding, as explained in the surrogate’s memorandum opinion and on the argument before us, was to reach O’Brien individually, as a surety on Jane Boyle’s official bond as administratrix,'etc., of Pierce T. Boyle, the intestate.

We discover several objections which seem to us to be fatal to this decree. They will incidentally appear as we state the results of our examination of the rights of these petitioners. Let it be granted that Pierce T. Boyle left the sum named in the inventory filed by his mother as his administratrix, there would still seem, upon the undisputed evidence, to be an unanswerable objection to the petitioner’s claim of any interest in that particular trust fund at the time of the death of the administratrix. The intestate left no children; he-left no father: he left his mother, his brother and sister, and the children of Patrick. Under the statute of distributions, the mother took one-half the estate and the living brother Charles, and sister, Mrs. O’Brien, took each one-sixth, and the brother Patrick took one-sixth, if be was alive, and it certainly does not appear anywhere in the case that he was then dead.

Perhaps it may be said that the omission of O’Brien’s answer might cover the point that the petitioners were entitled to a distributive share of intestate’s estate then, i. e., at the date of the petitioners, if there was anything left of it, but the difficulty, as we shall presently see, is that there was nothing left of it. It had all been distributed under the statute. Let us see if this is not strictly true. It is undoubtedly the fact that O’ Brien’s answer denied the receipt of any assets of the estate of this intestate, and there was no proof that he did receive any such assets unless they composed a part of Jane Boyle’s assets. All these moneys and securities stood in her individual name. Throughout the entire proceeding no specific article of other property was pointed put and identified which came from the intestate. At the very utmost, then, it must be said that the $3,772.03, the sum of the inventory, had been converted into money and mingled undistinguishably in the mass of property which stood in Jane Boyle’s name. At any time during her life she might have been compelled to account for that $3,772.03; and, if she could not have traced and identified it, perhaps her entire estate might have been charged with an equitable lien for the amount thereof, and held in the interest of the distributees of Pierce T. Boyle until the representatives of that interest received their just due. But that was not done, hence at her death that right was lost, and the entire estate in her hands which could not be traced and identified was distributable and properly dealt with under the statute. (Hooley v. Grieve, 7 Abb. N. C., 271.)

The parties .interested in the estate of the intestate were thus remitted to the standing of mere creditors of Jane Boyle’s estate. (Id.) They thus lost their vested rights in the fwnd as owners of it, and were remitted to the rights of beneficiaries of O’Brien’s official trust as executor of Jane Boyle’s will — -rights which did not give them any ownership of that fund as distributees thereof, as against them O’Brien was the owner of the entire fund as executor. O’Brien was their trustee to the extent of paying them as creditors, which is a very different thing from ownership of the fund itself, or giving them any right to a distributive share of the fund under the statute. Thus O’Brien’s admission in his answer, coupled with his denial that he ever received any assets which were a part of the estate of this intestate, and the failure of proof that he did receive any such assets, would seem to leave the petitioners without ground for a claim against him as executor. Their only standing was that they were entitled to a distributive share of the i/ntestatds estate. But this is not all, for then came the notice by her executor (O’Brien) to Jane Boyle’s creditors, the exhibition and payment of their claims, the proceedings for the accounting, the citations and the decree settling the accounts, adjudging the rights of all parties interested in the surplus, and the actual distribution in pursuance thereof. There is no suggestion of any irregularity or defect of parties to that proceeding, or that O’Brien had any notice of the present claim, either actual or sufficient, to put him on inquiry, unless it is to be implied from the allegations that he received assets which belonged to the first estate. For aught that appears, these petitioners were all of full age, and presumably they were parties to that accounting. We are, therefore, unable to see why the fund was not lawfully distributed, so that by their own neglect to assert their rights during Jane Boyle’s lifetime, or at least prior to the distribution of her estate, these petitioners have suffered the court to wipe out their equity, even assuming that O’Brien did receive assets belonging to Pierce T. Boyle’s estate, much less did they indicate any equity against Jane Boyle’s sureties. Surely it would have been competent for them to have given O’Brien some notice of their claim under the notice to creditors. (Redfield on Sur. [2d ed.] 525.) Failing in that they suffered this executor innocently to distribute the fund, and thus did they in a legal sense deprive Jane Boyle’s sureties of the resource which would otherwise have protected them. And thus, whether we view the case with reference to the technical rights or ultimate object of these petitioners, it would seem to be without substantial merit.

We come, then, to the next difficulty in the case which relates to the manner in which Mr. Surrogate Lott disposed of the merits of O’Brien’s ailswer, which, as we have seen, alleged a clear defense to the duty of accounting at all. He made a mere order without findings of fact or conclusions of law. Indeed, he refused even to entertain request to that end. Was that proper? Certainly, if instead of proceeding in the Surrogate’s Court, these petitioners had filed their bill in equity for an account, the first question would have been whether or not he was bound to account. As against that claim his answer was I never received any assets of Pierce T. Boyle’s estate,” and, second, “I have already accounted for everything which I did receive and have paid it out under a decree, and am thus discharged from any further duty as executor at all, and that decree binds and stops these petitioners.” On such an answer in an action it would have been necessary to enter a formal judgment based on a decision” containing findings and conclusions. If required to account it would have been an interlocutory judgment. If not required to account, it would have been a final judgment dismissing the action. In view of the new practice requiring “ decisions ” from surrogates, we fail to see why O’Brien was not entitled to that right in this case, which, in our view, would have resulted in a dismissal of the proceeding.

But there is another answer to this proceeding. The petitioners seem to have deemed it necessary to plead the appointment of Jane O’Brien as the administratrix de bonis non of the intestate. It is not unlikely it was made on their application. Certainly, if there was anything upon which such an appointment could operate, this new administratrix was the party entitled to receive the estate, and, therefore, she was primarily the proper party to file the application. How can these petitioners maintain such a proceeding unless she either refused to sue, or stood in such relations to O’Brien as executor, that a demand that she should proceed would have been a mere idle ceremony ; she was not even made a party to the proceedings ; this point does not go to the mere defect of parties. Such a demand, or an allegation and proof of circumstances which avoided its necessity upon general principles, was a condition precedent to the petitioner’s legal standing to make this application. How could these petitioners, proceeding in her absence, have obtained a decree which would settle anything as between the estate of the intestate and Jane Boyle’s estate ; and yet this decree assumes to adjudge that Jane Boyle had no claim whatsoever.

We have not overlooked the provisions of paragraph 2606 of the Code and their supposed bearing on this question. They do not seem to us to meet the difficulties above suggested. The point still remains that there was no proof that this executor ever bad any assets which, in a legal sense, belonged to the intestate, and bence, that be beld no property in trust for the petitioners as distributees of the intestate. And it may well be doubted if this section applies to this case in any view. But we do not deem it necessary to decide that point. Our conclusion is that it was error to refuse the executor’s request submitted to Mr. Surrogate Lott, in the first instance, and that class of exceptions in the case is, therefore, sustained. The decree of December 30, 1886, is, therefore, reversed with costs of this appeal, and the order of March "twelfth is modified by limiting its effect simply to the right to a rehearing; a new trial is unnecessary. The surrogate should simply complete the trial on the evidence which will thus be before him by passing on the requests presented by the executor, and by making a “ decision ” with findings and conclusions, in pursuance of the principles herein stated, and thereon enter a final order in each special proceeding, dismissing the same. The matter of costs of those proceedings will be left to his discretion.

Barnard, P. J., and Dykman, J., concurred.

Judgment reversed with costs of appeal; interlocutory judgment of the 12th of March, 1886, modified in accordance with opinion ; order of the 16th of March, 1886, reversed; ordér to be settled by Justice Pratt.


source: Caselaw Access Project

author: Barnard, P. J.;

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. FISK WALLACE, Respondent, v. THOMAS ABBOTT and Others, as Trustees of School District No. 6 in the Town of Gravesend, Appellants.

      Trustees of a school district — when they will be compelled by mandamus to make an order on funds subject to their disposition, to pay a judgment recovered against them, -

    Appeal from an order directing that a mandamus issue to the defendants, trustees of a school district, commanding them to pay tó the relator or his attorney, the amount of a judgment recovered against them, or to deliver to him an order for said amount made and drawn by them upon the collector of said school district directing’ such collector to pay the same to him. The relator obtained a judgment against the defendants upon a claim for an unpaid balance of salary. The trustees having refused to pay the judgment or to give an order on ’the district collector for the amount, this writ was applied for and obtained.
    The Court at General Term said: “While it is true that an execution may be issued against the property of school trustees, to be collected out of their individual property, it is not the only remedy of the judgment creditor. The debt is against the school district and no inability upon the part of school trustees to pay individually will absolve the district from its debt. The defendants are a board, or a quasi corporation, and as such, have the money of the district in their hands. No question is made as to the amount being sufficient and as to the fund being applicable to pay the debt. The board has no excuse to offer upon this branch of the case why it does not do its duty to the relator. The facts, therefore, establish mandamus to be the proper remedy. Remedy by action is not a bar to the granting of a writ of mandamus to compel the performance of a duty. The judgment is final as to the application. Costs were granted by the judgment and cannot be assailed collaterally. By section 3244, Code, costs cannot be given in actions against school trustees for acts or omissions which could be determined upon appeal to the State superintendent. If the trial court determined the question erroneously, it cannot be questioned either upon an execution or upon an application for ma/ndamus. It appeal’s that the superintendent of public instruction declined to take the question. There was an issue of fact as to whether the trustee had paid for a year and the relator was not a teacher after his discharge.
    “ The order should be affirmed, with costs and disbursements.”

      T. C. Cronin,, for the appellants.

      Tunis G. Bergen, for the respondent.
   Opinion by

Barnard, P. J.;

Pratt, J., concurred.

Order affirmed, with costs and disbursements.


text:
    In the Matter of the Settlement of the Executors of JOSEPH S. BARKER, Deceased. EMELINE P. HAYWOOD, Appellant, v. CHARLES S. BARKER and Others, Respondents.

      Will — devise to Hie children of legatees dying before the death of the testator — when it includes the children who were dead at the time of the execution of the will.

    Appeal from a decree of the Surrogate of Westchester county, made upon the settlement of the estate of Joseph S. Barker, deceased.
    The testator by his last will directed the residuum of hi estate to be distributed among certain persons, or classes of persons, each to take a share. Two shares went to one person named and three other shares went to three other persons named in the will. Then follows this portion of the will giving shares to classes: “ One share to each of the children, living at the time of my death, of my deceased brother Isaac Barker; one share to each of the children, living at the time of my death, of my deceased brother Nathaniel Barker; one share to each of the children, living at the time of my death, of my deceased brother Thomas Barker; one share to each of the children, living at the time of my death, of my deceased brother Elijah C. Barker; one share to each of the children, living at the time of my death, of my deceased sister Jane Hart; one share to each of the children, living at the time of my death, of my deceased sister Mary Crawford; but in case any one or more of the children of either or any of my deceased brothers and sisters mentioned in this clause of my will shall die or have died before me leaving lawful issue, then and in that case such issue of my deceased nephew or niece shall receive the share which he or her ancestors would have received under this clause of my will had he or she been living at the time of my death, excepting in the case of the issue of Lemuel Crawford, deceased, to whom this clause shall not apply, the children of the said Lemuel Crawford, deceased, having been left a legacy in a former clause of this will.”
    Some of the nephews and nieces had died before the date of the will, and some had died intermediate the date of the will and the death of testator. The question is whether, under this clause, the children of the nephews and nieces, who died before the testator’s will was made, take the share to which the parent would have been entitled if he had lived until the will took effect.
    The Court at General Term said : “ The case has been very elaborately argued and the argument discloses very considerable diversity upon the question as to what words make a permanent legacy and what a substituted one. All the cases cited differ more or less from the present one. The leading case of Ghristopherson v. JVaylor (1 Mer., 320),- differs essentially. The legacies intended for the child in case of death “ shall be for his, her or their issue.” These were held to be words of substitution only. It is doubtful whether, under the rule so constantly asserted by the Court of Appeals, that the intention of the testator shall prevail, the case would be followed with the same language. The testator certainly intended, in case of the death of one legatee, that another should take from him. The will in the present ease goes further. It provides for a case where a person shall die ‘ or have died before me.’ There is no reason why the will which seems to have been drawn to meet deaths already happened, as well as those which shall ’ happen is not to have full force in one case as well as in the other. The words of the will plainly refer to all the brothers and sisters mentioned in the seventh clause (the one in question) and the deaths are those which have or are possible to happen. The testator, so far as disclosed, had the same love and affection to the descendants of all his nephews and nieces. It would both be just and would meet the intent of the will to include those in the clause who were dead when the will was made. (Teed v. Morton, 60 N. Y., 502.)
    “ The judgment should, therefore, be affirmed with costs.”

      J. K. Haywood, for the appellant.

      James F. Randolph, for Isadora C. Tuttle, respondent.

      Guilim & Meyers, for Mary E. Williams, respondent.

      Walter Edwards, for Geo. E. Edwards and others, respondents.

      E. B. & C. P. Cowles, for Margaret Thiess and others, respondents.

      Phillips J. O'Reilly, for John C. Barker, respondent.

      John S. Wood, for Charles S. Barker, respondent.
   Opinion by

Barnard, P. J.;

Pratt, J., concurred.

Part of surrogate’s decree appealed from affirmed, with costs.


text:
    CLARENCE B. CONGER, Individually and as Trustee, etc., of CATHARINE ANN HEDGES and Others, Appellants, v. THE NEW YORK, WEST SHORE AND BUFFALO RAILROAD COMPANY, Respondent.

      Specific performance of a contract, entered into by a railroad company to make a station at a certain place — will be refused when a change of circumstances malees it more onerous to the party required to perform, without any great benefit to the other party.

    Appeal from a judgment entered upon the trial of this action by the court without a jury refusing to enforce the specific performance of a contract.
    The Court at General Term said: “The Jersey City and Albany Railway Company was one of the lesser corporations which was finally consolidated as the New York, West Shore and Buffalo Railway Company. The plaintiff’s predecessor in title, Catharine Ann Hedges, owned land in Rockland county and the Jersey City and Albany Railway Company laid out its route through the same. An agreement was made by which the owner of the land agreed to give the right of way and, among other conditions, the Company agreed to make a station at the place known in the case as the ‘ Long Clove.’
    “ Before the road was built the final consolidation was made and the defendant changed the route through the Hedges land and built their route upon the changed line and did not make a station at Long Clove. The change of route was not so marked but that the defendant took the bulk of the land agreed to be given to the Jersey City and Albany Railroad Company, and still it was so wide and, substantial as to change the situation of the parties m respect to the station at Long Clove. The first route went around the high peak of land south of Haverstraw under which the defendants constructed a tunnel. The place of the station under this arrangement would be north of the tunnel, and near its mouth and upon a sharp curve. The grade is heavy in both directions j the place of the station is almost if not entirely wild, and the station would be costly to build and maintain and would not benefit the land owner, so far as disclosed by the evidence. The public service would be injured and there would be no corresponding benefit to the public from a station at the point in question.
    “ Under this evidence it is not a matter of right to ask a specific performance of a contract. When a contract was fair when made, if subsequent events change the conditions so as to make the same onerous, and without any great benefit to the party who asks the decree'for specific performance, the same should be denied. (Trustee of Cohmibia College v. Thacher, 87 N. Y. 311; Clarke v. Rochester, etc., R. R. Co,, 18 Barb. 350.) No real injustice is done. The party can have his action for damages and the judgment reserved this right.
    “ The judgment should be affirmed, with costs.”

      Clarence R. Conger, for the appellants.

      Ashbel Creen and C. Frost, for the respondent.
   Opinion by

Barnard, P. J.;

Pratt, J., concurred.

Judgment affirmed, with costs.


author: Hardin, P. J.:

text:
    JULIUS S. DRESSER, Respondent, v. THE UNITED FIREMEN’S INSURANCE COMPANY and Others, Appellants.

      Insurance — the dissolution of a firm does not constitute a transfer of the insured ■property — what is a sufficient notice that the assured is not the absolute owner— when a failure to state a lien in proofs of loss will not avoid the policy.

    This action was brought to recover the damages sustained by fire, under a policy of insurance issued on October 11, 1884, by the defendants to the plaintiff and Frank J. Oallanen, under the firm name of Dresser & Oo. It contained a provision that it should become void “by the sale or transfer or any change in title or possession of the property insured.” On May 30, 1885, the firm was dissolved, the interest of Oallanen in the firm property was transferred to Dresser, and Dresser executed a chattel mortgage on the property for $3,000 to Oallanen to secure the purchase-price.

      Held, that the dissolution of the partnership, the transfer of Oallanen’s interest in the property to Dresser, and the giving of the chattel mortgage by Dresser, did not work such a transfer of interest as to avoid the policy.
    The policy contained the following, among other provisions: “ It is agreed and understood that the above building stands on leased land. * * * It being understood, unless otherwise expressed in this policy, that the interest of the assured is the entire, unconditional and sole ownership of the property, and that all buildings intended to be insured by this policy stand on ground owned in fee simple by the assured.” Upon the trial Oallanen testified that he talked with the agent of the defendants about the insurance, and notified him that the building was on leased ground, and that the agent saw a copy of the lease and they talked about it. By the lease the whole rent was declared to be a valid first lien upon the building and improvements, and in case any installments of rent should remain due and unpaid, the lessor was authorized to sell them at public auction, after giving ten days’ notice in a daily newspaper, and that, except as aforesaid, the said building should remain the property of the lessees, and might be removed by them at the expiration of the lease.

      Held, that as the agent was notified that the building stood on leased land, and inserted that fact in the policy, the above provision was sufficiently complied with.
    That if-the agent read the lease, as it was claimed he did, the policy could not he avoided by reason of the existence of the lien created in favor of the lessor. That the clause in the lease, in reference to the lien and its enforcement, did not operate to transfer the title to the building and improvements to the lessor.
    The policy required that the assured should furnish proofs of loss, slating, among other things, the title and interest of the assured, and of ail others in the property.

      Held, that the failure to refer to,the said lien of the lessor in the proofs of loss furnished by the plaintiff, or on an examination of the plaintiff by the defendants, did not avoid the policy under a clause therein providing that it should become void “ by fraud, or attempt at fraud, in the procurement of this policy, or in the proof of loss or by false swearing, or by any other means.”
    Appeal from a judgment entered in Oneida county upon a verdict taken at tbe Oneida Circuit.
    The action was brought to recover damages sustained by fire, under a policy issued on October 11, 1884, to the plaintiff and Frank J. Oallanen, under the firm name of Dresser & Co. In July, 1884, the firm of Dresser & Go., took from William H. W atson a lease of certain lands upon which to erect buildings to be used as a skating rink, on Genesee street in the city of Utica.
    The policy contained the following words, viz. : “ It is agreed and understood that the above building stands on leased land; ” * * * also, “ it being understood, unless otherwise expressed in this policy, that the interest of the assured is the entire, unconditional and sole ownership of the property, and that all buildings intended to be insured by this policy stand on ground owned in fee simple by the assured; ” * * * also, “ this policy shall become void and of no effect * * * by the sale or transfer, or any change in title or possession of the property insured. * * * By fraud, or attempt at fraud in the procurement of this policy, or in the proofs of loss, or by false swearing or by any other means.”
    The policy contained a clause under a subdivision, relating to adjustment and payment of loss, providing that “ all proceedings after a loss shall be in accordance with the terms and stipulations printed on the back of this policy. First. When a fire has occured, injuring the property herein described, the assured shall give immediate notice of the loss in writing to this company; and within fifteen days after the fire, unless the time be extended by the company in writing, shall render to this company in writing a particular statement of the loss, signed and sworn to by the assured, stating such knowledge or information as the insured has been able to obtain as to the origin and circumstances of the fire, and also stating the title and interest of the assured, and of all others in the property, the cash value thereof,” etc.; also, “ the assured shall, whenever required, submit to examination under oath, by any person appointed by this company and subscribe to such examination when reduced to writing, and shall also as often as required produce their books of account.” * * * •
    Callanen testified that he had talked with Hurlbert about the insurance while acting for the firm, and that he gave notice to him that the building was on leased ground, and added,’viz.: “ Hurlbert saw a copy of the lease that I had; we took the more particular portions of it and talked of it; I won’t say whether he read it or not; I know he knew about this because we talked it over ; in taking out the insurance the matter of the lease and the lien that Watson had on the property was talked of; I remember that.”
    On May 30, 1885, the copartnership of Dresser & Co. was dissolved, and the interest of Callanen in the firm property was transferred to Dresser, and Dresser executed a chattel mortgage to Cal-lanen for $2,000 on the property, to secure the purchase-price. After the fire the company caused the examination of the plaintiff to be taken in pursuance of the provision as to proof of loss contained in the policy. Upon that examination Dresser stated there was no incum-brance other than the Callanen mortgage; no real or chattel mortgage on the premises or property in question or any part of it, and never had been. “No one had any interest in the property aside from myself and Oallanen.” Hpou the trial of this action the witness Dresser testified, viz: “ At the time I was examined all the rent which had accrued was paid up ; I think there was something unpaid on the rent at the time of the fire; rent was payable in advance and I think some was due at the time of the fire.” In the* lease of Watson to the firm was the following language, viz.: “ The parties of the second part covenant and agree to pay to the party of the first part as rent for the use of said premises the sum of sixteen hundred dollars per annum, '* * * quarterly * * * in advance * * * It is expressly understood and agreed by the parties hereto, that the whole rent aforesaid and each and every quarterly installment thereof during the term aforesaid or any renewal of this lease shall be and hereby is declared to be a valid and first lien upon any and all buildings and improvements which may or shall be erected or made or put on said premises by said parties of the second part, and whenever and as often as any installments of said rent shall become dúe and remain unpaid for ten days after the same becomes due and payable, said party of the first part * * * may sell at public auction to the highest bidder after having first given ten days’ notice of the time and place of such sale in a daily newspaper * * * the buildings and improvements aforesaid on said premises, or such parts thereof as may be necessary, and all the right, title and interest acquired by said parties of the second part under this lease to said premises, * * * and, except as aforesaid, the said buildings and improvements which may or shall be erected, made or put on said premises, shall be and remain the property of the said parties of the second part, * * * subject to the liens aforesaid, and at the expiration of this lease or of any extension thereof, on payment of all rent due thereon, said parties of the second part shall have the right and privilege to remove from said premises any and all buildings and structures they have erected thereon. * * *

      Garfield, Kellogg & Wells, for the appellants.

      Goodwin, c& Swam, for the respondent.
   Hardin, P. J.:

The dissolution of the partnership, the transfer of Callanen’s interest in the property to Dresser, the chattel mortgage given by Dresser & Co. to Oallanen, did not work such a transfer of interest as to avoid the policy in question. (Hoffman v. The Ætna Fire Insurance Co., 32 N. Y., 405; Keeney v. Home Insurance Co., 71 N. Y., 402.)

When Hurlbert, the agent, issued the policy in question, he was informed that the buildings were upon leased land, and inserted in the policy the clause indicating that fact, and also his knowledge of the fact. "We think there was a sufficient compliance with the condition of the policy requiring the interest of the insured in the premises to be stated, and that the knowledge communicated to the agent of the fact that the building stood upon leased land, and the issuance of the policy thereafter indicated that there was an intent on the part of the parties to comply with that condition of the policy which requires the interest of the assured to be stated, if the same shall be less than the fee. (Short v. Home Insurance Co., 90 N. Y., 16.)

If the agent, Hurlbert, read the lease before or at the time of issuing the policy, he -became aware, and through him the company received notice that the lease created a lien in favor of the lessor. After notice or knowledge of that fact the policy was issued, and cannot be avoided by reason of the existence of the lien in favor of the lessor. The clause in the lease did not operate to transfer the title to the property to the lessor. On the contrary, the lease expressly provides that the title to the property shall remain in the lessees, subject, however, to the lien. By the terms of the lease the title to the property and the possession thereof was to remain in the lessees until steps were taken to enforce the lien given upon the property. The lease in terms was not a chattel mortgage. There was no present intention to transfer the legal title to the property to the lessor. (McCaffrey v. Woodin, 65 N. Y., 459; Streeter v. Ward, MS. opinion, Follett, J., July 1, 1887, and cases cited.)

It is contended by the appellant “that the proofs of loss were false in reference to the existence of the Watson mortgage or lien, and this avoids the policy.” The language of the policy is that the same shall be void and of no effect “ by fraud, or attempt at fraud, in the procurement of this policy, or in the proofs of loss, or by false swearing, or by any other means. ”

Upon looking into the evidence given upon the trial, we are of the opinion that there was not sufficient proof to warrant a finding by the jury that the plaintiff attempted fraud by means of his proofs of loss submitted to the company. It is quite apparent that be was not attempting to mislead tbe company by his statement in the proofs of loss that no other person had any interest in said property.” There had been no seizure of the property by the lessor, or other enforcement of the lien clause contained in the lease, and, taking the entire language of the lease, it is apparent there was an intent to leave the ownership of the property in the lessess and to subject it to a conditional lien in favor of the lessor. But if it be assumed that the lien clause of the lease created an interest in the lessor,” the evidence falls far short of showing that the plaintiff willfully and fraudulently stated that no other person had any interest in the property. (2 Wood on Fire Ins., §§ 455, 1004, [ed. of 1886 ]; Titus v. Glens Falls Insurance Co., 81 N. Y. 410.)

It is contended by the appellant that by l'eason of the insertion of the words in respect to the absence of the lien in the proofs of loss, and by a statement to like effect on the preliminary examination had of the plaintiff, that there was a breach of warranty. We are of the opinion that the position is not tenable. It is difficult to suppose that the contracting parties had in mind any slight or unimportant mistake that might be made in the course of the preparation of proofs of loss, or in a statement of the evidence in a preliminary examination had under the policy, and that any such mistake or innocent deviation from the actual facts should be regarded a breach of a warranty. We are more inclined to regard the language used by the parties as providing for a forfeiture of the policy in case of any fraud or fraudulent practices in regard to the proofs of loss or the preliminary evidence required of the insured.

We are, therefore, of the opinion that the learned trial judge committed no error in receiving testimony tending to show that the insertion in the proofs of loss, as well as the statement made in the preliminary examination in regard to the absence of any incumbrance upon the property, occurred without any fraud or fraudulent intent or felonious purpose on the part of the insured.

As the trial was nearing the close, the court inquired of the counsel for the defendant, viz.: “ Do you desire to have any questions of fact submitted to the jury?” The counsel answered, “ There is no question I can have except the question of value.” Again the court inquired: I understand, then, that you do not request the court to submit anything else to the jury except the question of damages ? ” The counsel replied, “ I don’t know of any question that I can go to the jury on.” Near the close of the charge, the counsel for the defendant observed, viz.: “ If they find that the fire was caused by the act of the plaintiff, or by his procurement, knowledge, connivance or consent, then their verdict should be for the defendant.” Thereupon the court observed: “You have not asked me to submit any such question to the jury before. What question of fact am I to submit to them ? ” The counsel replied, viz.: “ Simply that.” Thereupon the court observed, viz.: “ What question of fact am I to submit to them to permit them to find for the defendant ? ” The counsel responded, “ That simple question; if they find that the fire was caused by his own act, knowledge, connivance or consent, that they should find for the defendant.” Thereupon the court observed: “Do you claim that there is any evidence on that ? I want to know whether you claimed upon the evidence that there was any question of fact, except the question of damages, for the jury ? ” Thereupon the counsel replied: “ I think I was right; but let them take it and determine it; never mind.”

It is quite apparent from the quotations we have just made, as well as from a perusal of the evidence, there was no question of fact beyond that of damages, upon which the jury would have been warranted in finding a verdict in favor of the defendant.

We are of the opinion that the learned trial judge committed no error in the progress of the trial, of which the defendant can complain. We think the judgment should be sustained.

Boardman and Follett, JJ., concurred.

Judgment affirmed, with costs.


author: Hardin, P. J. :

text:
    MICHAEL L. HUNT, Respondent, v. THE CITY OF OSWEGO, Appellant.
    Costs— when not allowed in an action against a municipal corporation — Code of Civil Procedure, sec. 8245.
    The treasurer of the city of Oswego is “ the chief fiscal officer of the corporation ’> within the meaning of those words as used in section 8245 of the Code of Civil Procedure, providing that costs cannot be awarded to the plaintiff, in an action against a municipal corporation, in which the complaint demands a judgment for a sum of money only, unless the claim upon which the action is founded was, before the commencement of the action,' presented for payment to its chief fiscal officer.

      Wisher v. Village of Cortland (42 Hun, 173) followed.
    Appeal from an order made by the Oswego Special Term denying a motion made by the defendant to set aside the taxation of costs, and to disallow costs to the plaintiff, because it was alleged the plaintiff had not complied with section 32é5 of the Code of Civil Procedure, before the commencement of the action.
    The action was brought to recover damages occasioned to the plaintiff’s garden by the defendant’s negligently flooding it by the improper construction of sewers and street gutters. The complaint demanded a judgment for a sum of money only.
    Plaintiff recovered a verdict at the Circuit for $150. It was shown that the plaintiff’s claim was presented to the common council of the city of Oswego July 21, 1885, and that this action was brought January 5,1886.

      E. B. Powell, for the appellant.

      W. E. Kenyon, for the respondent.
   Hardin, P. J. :

By section 15 of chapter 127 of the laws of 1877, it is provided, viz : “All claims against the city for damage or injury alleged to have arisen from the defective, unsafe or dangerous or obstructed condition of any street, crosswalk, sidewalk, culvert or bridge of the city, or' from negligence of the city authorities in respect to any such street, crosswalk, sidewalk, culvert or bridge shall, within three months after the happening of' such damage or injury be presented to tbe common council by a writing signed by tbe claimant and properly verified describing tbe time, place, cause and extent of tbe damage or injury. Tbe omission to present sucb claim as aforesaid within said three months shall be a bar to any action or proceeding therefor against the city.”

Under that section it was a condition precedent to tbe right of recovery, that the claim snould be presented to tbe common council. Nothing is found in tbe section relating in terms to costs of any sucb action. Tbe section does not, therefore, relate to tbe same subject-matter as that embraced in section 3245 of tbe Code of Civil Procedure. That section provides, viz: Costs cannot be awarded to the plaintiff in an action against a municipal corporation, in which the complaint demands a judgment for a sum of money only unless tbe claim upon which the action is founded was, before the commencement of the action, presented for payment to the chief fiscal officer of the corporation.”

By chapter 463 of the Laws of 1860, relating to the city of Oswego, the powers and duties of the treasurer of the city of Oswego are defined, and the provisions relating thereto are very similar to those found in chapter 406 of the laws of 1864, relating to the pillage of Cortland. In Fisher v. The Village of Cortland (42 Hun, 173), we held that the treasurer of that village is the chief fiscal officer of the corporation,” within the meaning of the words as used in section 3245, of the Code of Civil Procedure. Following our decision there made we must hold that the plaintiff, in the case in hand, failed to comply with the requirements of section 3245, of the Code of Civil Procedure, and that that section relates to actions ex delicto. In accordance with our opinion in the case last referred to we must hold that the treasurer is the chief fiscal officer, and that that section of the Code applies to actions of the character of the one now before us, until the contrary shall be declared by the Court of Appeals.

Since the argument of the case now before us, our attention has been directed to Taylor v. The City of Cohoes (35 Alb. Law Jour., 354), decided March 8, 1887. By an inspection of the opinion delivered in that case, it appears the decision was rested upon chapter 262 of the Laws of 1859, and the opinion states, among other things, viz.: “ It has not yet been decided that under the section of the Code (3245), in an action of this nature, a presentation of the claim must be made in accordance with its provisions before the commencement of the action, on pain of being deprived of costs, if the plaintiff be successful.”. W e must, therefore, adhere to the conclusion reached in Fisher v. The Village of Cortland (supra).

The order of the Special Term should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Boardman and Follett, JJ., concurred.

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


author: Hardin, P. J.: Follett, J.:

text:
    CHRISTIAN WIEL, Respondent, v. CHARLES COWLES, Appellant.

      Evidence — privileged communications — only those persons duly authorized to practice physic or surgery are prohibited from testifying by section 834 of the Code of Civil Procedure.

    Upon the trial of this action, brought by the plaintiff to recover damages for personal injuries alleged to have been sustained by reason of the negligent driving of the defendant, the defendant called a witness, one 33. W. Smith, who had visited the plaintiff after the injuries were sustained, on several occasions, and ashed him what he observed. An objection made by the plaintiff, that the testimony was inadmissible under section 834 of the Code of Civil Procedure, having been sustained, the witness testified that at the time he visited the plaintiff he had not been admitted to practice, nor was he a licensed physician. The defendant then asked him “ what he found,” referring to the condition of the plaintiff. Upon the plaintiff’s objection the evidence was again excluded.

      Held, that the court erred in so doing, as the “ information ” acquired by the witness was not privileged, as it was not shown that the witness was “ duly authorized to practice physic or surgery,” which was necessary in order to bring the case under the said section.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, in the County Court of Onondaga county, and from an order denying a motion for a new trial made upon the minutes of the justice before whom .the action was tried.

      iThe action was brought to recover damages for injuries sustained by tbe plaintiff by reason of tbe negligent driving of tbe defendant.

      George D. Qowles, for tbe appellant.

      T. E. Hancock, for tbe respondent.
   Hardin, P. J.:

Plaintiff gave evidence tending to sbow tbat be was injured on tbe evening of tbe 7th of March, 1885, on Lincoln avenue, in Syracuse, while passing along tbe avenue with bis daughter, in tbe outskirts of tbe city, by tbe negligent driving of tbe defendant against or over him. He gave evidence of tbe extent and character of the injuries received and the condition thereof days after the happening of the same.

Defendant called as a witness one Earl W. Smith, who had visited the plaintiff after the injuries, on several occasions, and asked of him what he observed. That was objected to by tbe plaintiff as inadmissible under section 834 of the Code of Civil Procedure. The objection was sustained and defendant excepted.

Defendant then proved by the witness that he was not a licensed physician at the time he visited plaintiff. Defendant asked tbe witness “what be found” referring to tbe condition of plaintiff. Plaintiff objected and tbe court shut out the evidence and defendant excepted. We think tbe court committed an error. When tbe witness derived the “ information ” soughtfor by the questions he was not “ duly authorized to practice physic or surgery.” Tbe “ information” was not privileged. Tbe section ought not to be extended by construction. The ruling of the trial judge was erroneous. (Code of Civil Pro., § 834; Renihan v. Dennin, 103 N. Y., 579; McKinney v. Grand Street, P. P. & F. R. R. Co., 9 Eastern Rep., 698; People v. Schuyler, 43 Hun., 88.) Tbe words duly authorized to practice physic or surgery ” found in section 834 of the Code of Civil Procedure, were doubtless intended to apply to those persons not prohibited by section 356 of the Penal Code from practicing.

It is reasonable to construe the sections together. When Smith examined the plaintiff and held his interviews with him he was not “ duly authorized to practice.” The in formation was not such as section 834 says shall not be disclosed, because it was not possessed by “a person duly authorized to practice physic or surgery.” Because tbe defendant was deprived of competent evidence by tbe rulings we must reverse tbe judgment. It is not needful to pass upon several other questions discussed by tbe appellant at length as they may not arise upon a second trial.

Tbe judgment and order should be reversed and a new trial ordered in the County Court of Onondaga county, with costs to abide the event.

Follett, J.:

Tbe burden of showing that the witness was within section 834 and incompetent to testify, was upon the objector, the plaintiff. The witness testified: “I reside at 69 Warren street, Syracuse, N. Y.; my occupation is medicine and surgery; I am a physician. * * * Q. Were yon a licensed physician at that time? A. I was not. Q. At any of the times or occasions that you called to see plaintiff had you been admitted to practice or licensed as a physician ? A. No, sir; I made no charge; I did it out of charity.” The witness treated and prescribed for the plaintiff, as a physician, for about one week. The evidence does not show that the witness had, at any time, received authority from any school or society tc practice medicine or surgery at any place. It does not appear that he was registered pursuant to chapter 513, Laws 1880, as amended. There is no evidence that the witness was, or even had been, “ duly authorized,” in a professional or legal sense, to practice physic or surgery. The witness stated that he called on plaintiff while on his way to college. Whether he was connected with a medical college does not appeal; and if he was, whether as teacher or pupil does not appear. Nor does it appear that he was a practicing physician at the time, nor that he ever had been. If persons, not authorized in a legal or professional sense to practice physic or surgery, are within section 834, the effect will be to extend the privileges to such nurses and persons as are willing to swear that they are physicians in fact, and were attending the patient as such. Such was not the intention of the legislature.

A new trial must be granted.

Boardman, J., concurred.

Judgment and order reversed and a new trial ordered in the County Court of Onondaga county, with costs to abide the event.


author: Boardman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HELEN C. BEARDSLEE and GUY R. BEARDSLEE v. HENRY A. DOLGE, Commissioner of Highways of the Town of Manheim.

      Laying out of highways — drawing of jurors by the clerk — an irregularity therein will not deprive the commissioners of jurisdiction — section 75 of article 4, title 1, chapter 16, part 1, Sevised Statutes, as amended by chapter 696 of 1881 — the hearing is to be had on the writ and return only.

    Upon the healing had upon the return to a writ of certiorari to review the pro. ceedings of commissioners of highways in altering and laying out a highway across the lands of the relator, it was claimed that the town clerk violated the provisions of section 75 of article 4, title 1 of chapter 16 of part 1 of the Revised Statutes, as amended by chapter 696 of 1881, in that he did not, in the first instance, remove from the box containing the names of jurors the names of those who were interested in the lands to be taken, or were of kin to the owners thereof, but proceeded to draw from the entire list of jurors selected and returned for the town.

      Held, that as the name of no person who was interested in the land to be taken, or was of next of kin to the owners thereof, was drawn from the box, the refusal of the clerk to exclude the names of such persons therefrom was a mere irregularity which, in the absence of injury to the relators, might be disregarded.
    That any error in the details of the preparation of the box prior to the drawing of the jury, not prejudicial to the relators, and not depriving them of any substantial right, would not deprive the commissioners of jurisdiction to lay out the road, nor would such an irregularity lead to a reversal of the proceedings.
    The hearing must be had upon the writ and return, and the court will not review facts stated in the return where they are founded upon personal inspection and individual knowledge of the locality, because such personal inspection and knowledge cannot be recorded and reproduced.
    CeRtiobARI to review the proceedings of tlie commissioners of highways of the town of Manheim, in laying out a public road across the lands of the relators in the said town.

      S. Earl and Wm. F. Lansing, for the relators.

      C. J. Palmer, for the respondent.
   Boardman, J.:

The relators have brought this writ of certiora/ri to review proceedings to alter a highway, and lay out a public highway across tbeir lands. The first error relied upon relates to the manner of drawing the jury by the town clerk. The Bevised Statutes as amended by chapter 696 of the Laws of 1881, section 1, provide that the clerk shall deposit in the box the names of the persons selected and returned as jurors, who are not interested in the lands through which such road is to pass or be located, nor of kin to the owner thereof, and draw therefrom the names of twelve persons and make certificate, etc. The clerk did. not, in the first instance, select from the list of jurors the names of those who were interested in the lands to be taken or of kin to the owners thereof, but proceeded to draw from the entire list of jurors selected and returned for the town.

The counsel for the relators requested that the clerk first select and take from the'box the names of the persons so interested, or of kin to the relators before the drawing of the jury, which request was denied. An objection to the jury so drawn was again made, after it was drawn, and the objection was overruled. A motion to dismiss the proceedings at the close of the hearing upon the same ground, that is, that the jury was irregularly drawn,” was denied.

No person’s name who was interested in the real estate to be taken or of kin to the relators was drawn from the box. No further or other objection was taken to the jury as finally certified or to the rejection of any of the jurors whose names were drawn. The return certifies that the jury as drawn was unexcejrtionable. The question is then presented whether the exclusion from the box of the names of jurors interested in the lands or related to the owners, before the drawing, is a jurisdictional requirement; or was the failure so to do a mere irregularity, which, in the absence of injury to the relators^ may be disregarded.

’ The object of the law is plainly to secure a. disinterested jury. The inode prescribed tends to accomplish such result. The clerk must always, in his exclusion, act informally and with more or less ignorance of such jurors as may be interested or related. If the exclusion of all such persons is jurisdictional, the failure as to one or more of them would be equally fatal. This would seem to be a dangerously technical rule without a sound or sensible basis. In Buckley v. Drake (41 Hun, 384), an applicant for the road is held to be a competent juror on the proceeding. Yet it was held that tlie exclusion of the applicants from the box was not so far jurisdictional as to justify an action to restrain the commissioners of highways from entering upon the lands and opening the highway. See, also, People ex rel. Downey v. Dains (38 Hun, 43). This could not be true if the proceedings were void. The same question was under discussion in this court.in the case of the People ex rel. Edwards v. Potter (36 Hun, 181), where it is held, that the applicants for the road are not competent jurors, but that the failure of the clerk to deposit tlieir names in the box, although not to be excluded under the terms of the law, was not error. It was further held, that unless the relator was injured by the failure of the clerk to comply with the terms of the law in preparing the box before drawing the jurors, it would not invalidate the proceedings. The remarks of Mr. Justice Follett in the last case are applicable to the one under consideration. We conclude that any error in the details of preparation of the box prior to the drawing of the jury, not prejudicial to the relators and not depriving them of any substantial right, would not destroy the jurisdiction to lay out the road, nor would such an irregularity lead to a reversal of the proceedings. (People v. Petrea, 92 N. Y., 128; Code, §§ 2140, 723.)

The relators further claim that the action of the commissioners should be reversed, because the proposed road runs through the barn-yard, etc., of the relators. The language of 'the return is an answer to such claim. It says, That none of said alteration and highway passes through the buildings or barn-yard” of the relators, nor do they pass through any yard of the said Beardslee.” Again, the motion to dismiss the proceedings on that ground was denied, “ for the reason that the survey shows that the proposed alteration passes over the top of the clay-bank and not through any barn-yard or buildings.” The hearing must he upon the writ and return (38 Hun, 43, supra); and the court will not review facts stated in the return where they are founded upon personal inspection and individual knowledge of the locality, because such personal inspection and knowledge cannot be recorded and reproduced. No appellate court can intelligently and fairly review a decision upon facts so ascertained. (People ex rel. Mayor, etc., v. McCarthy, 102 N. Y., 643.) The commissioners and jurors personally inspected and went over the proposed road, and it is certified, after such inspection, that it did not pass tbrongh any barn-yard or buildings. We must accept such determination as true, while there is little in the evidence of Mr. Beardslee to overthrow it. The .discontinuance of. the old highway was an incident to the alteration and necessarily followed it. (People ex rel. Bowen v. Jones, 63 N. Y., 310.) There was no error, therefore, in making the discontinuance of the old road a part of the order.

The proceedings and order of the commissioner of highways must be affirmed, with fifty dollars costs and disbursements in his favor against the relators.

Follett, J., concurred in the result; Hardin, P. J., not voting.

The proceedings and order of the commissioner of highways affirmed, with fifty dollars costs and disbursements in his favor against the relators.


text:
    IDA M. PAUL, as Administratrix, etc., of MATTHEW L. PAUL, Deceased, Appellant, v. THE TRAVELERS’ INSURANCE COMPANY, Respondent.

      Accident insurance policy — death from breathing illuminating gas is covered by — an external sign only required in cases where injury does not result in death — meaning of expression “ inhaling gas.”

    This action, brought upon a policy of insurance issued by the defendant to the intestate, indemnifying him “against loss of time * * * from the happening of such accident and injury as shall, independently of all other causes, 'immediately and wholly disable and prevent him from the prosecution of any and every kind of business by reason of bodily injuries effected * * * through external, violent and accidental means, or in the event of death, occasioned by bodily injuries received as aforesaid.” By such policy it was further provided that the “insurance shall not extend to any bodily injury,of which there shall be no external and visible sign upon the body of the insured * * * nor by the taking of poison, contact with poisonous substances, or inhaling of gas, or by any surgical operation or medical treatment.” While the policy was in force the intestate died accidentally at a hotel in New York city from breathing, in his sleep, illuminating gas, which in some way escaped in his room.

      Held, that the death"was caused by “external, violent and accidental means,” ■ within the meaning of those words as used in the policy.

      EM v. Hartford Accident Insurance Company (22 Hun, 187) not followed.

      That the “ external and visible sign upon the body of the insured ” was only required to exist in cases of bodily injuries which did not result in death.

      E seems that the dead body itself was an external and visible sign of an injury which must have caused the death.
    That the words “inhaling of gas,” among the various provisions exempting the defendant from liability, were used to designate only those common uses of gas existing in dentistry, surgery, etc., and did not include the case of the intestate.
    Appeal from a judgment, entered in Onondaga county, upon the trial of this action by the court without a jury, dismissing the plaintiff’s complaint, with costs.

      W. S. Andrews, for the appellant.

      Louis Marshall, for the respondent.
   Boardman, J.:

This is an appeal from a judgment rendered upon a decision of the justice upon an agreed state of facts, a jury having been waived. Th$. action was upon a policy of insurance issued by the defendant to the intestate indemnifying to the amount of fifteen dollars per week for loss of time from accidental injuries suffered, and in the case of death occasioned by injuries of a certain character agreeing to pay his legal representatives $3,000. While said policy was in force the intestate died accidentally at a hotel in New York city from breathing, in his sleep, illuminating gas, which in some way escaped in his room. He was found dead in his bed and it was evident that his death was caused by his unconscious breathing of such gas in his sleep.

To sustain this judgment dismissing the complaint with costs the defendant relies upon two conditions of the policy, each of which is urged as fatal to plaintiff’s action. The policy provides as follows: The defendant indemnifies “ against loss of time * * * from the happening of such accident and injury as shall independently of all other causes, immediately and wholly disable and pi-event him from the prosecution of any and every kind of business by reason of bodily injuries effected * * * through external, violent and accidental means; or in the event of death, occasioned by bodily injuries received as aforesaid,” etc. By such policy it is further provided, that the “ insurance shall not extend to any bodily injury of which there shall be no external and visible sign upon the body of the insured ; , * * * nor by the taking of poison, contact with poisonous substances, or inhaling of gas, or by any surgical operation or medical treatment; nor to any case except where the injury is the proximate and sole cause of the disability or death.”

Was the death of intestate caused by or through “ external, violent and accidental means” within the language of the policy? That it was accidental is found by the judge. But for the case of Hill v. Hartford Accident Insurance Company (22 Hun, 187) we should say the death was due to external and violent means, as clearly as drowning or poison introduced into the system. The cause of the death came from the outside as surely as would a fatal rifle ball or water in case of drowning. The escape of gas into the room was violent in the same sense that would be the flow of water into a wrecked vessel. In either case the external means constitute the cause which produces death. It is a violent death, produced by an external power, not natural. Some poisons, such as opium or chloral, produce no violent action upon the human system. The man who descends into a well of carbonic acid gas is killed with no greater violence perhaps than was the intestate. Yet in all these cases the result would be called a violent death.

Was there no external and visible sign upon the body of the insured of any bodily injury, and if so is that language in the policy applicable in case of death or only to injuries through which weekly allowances are asked ? It would seem as though the dead body was an external and visible sign of an injury which must have caused the death. The injury may have been due to accident or disease but the visible and recognized evidence is present in the corpse.

But waiving that view, we think the external and visible signs of bodily injury need exist only in cases of injuries which do not result in death. Where the insured claims loss of time by reason of injuries, there must be some external and visible sign upon his bbdy for the purpose of avoiding the' false and fraudulent claims which might otherwise readily be imposed on the company by dishonest men. But no such protection is required in case of death. That cannot be successfully feigned to accomplish a dishonest purpose. Tlie reading of the policy shows two grounds upon which claims may be founded, the one injuries not resulting in death, for which there is a weekly allowance by way of compensation, if upon the body there are external and visible signs of the injury, and the other is the case of death, “ occasioned by bodily injuries received as aforesaid;” that is, “through external, violent and accidental means.” This language is not qualified by the proviso afterwards contained in the policy, that this insurance shall not extend to any bodily injury of which there shall be no external and visible sign upon the body of the insured.” That proviso relates to injuries not producing death, and not to death from injuries. (Mallory v. The Travelers' Ins. Co., 47 N. Y., 52.)

Ye also think the words “inhaling of gas,” among the various provisions exempting defendant from liability, were used to designate those common uses of gas in dentistry, surgery, etc. The eon-nection in which the words are used gives the same impression. The insurance shall not extend to a death caused by the taking of poison, contact with poisonous substances, or inhaling of gas, or by any surgical operation or medical treatment,” etc. Evidently an exemption from death caused by a surgical operation, was not broad enough to include the use of anasthetics preparatory to the operation. It contemplated a voluntary and intelligent act by the assured, not an involuntary and unconscious act.

It is difficult to distinguish the case under consideration from Hill v. Harford Insurance Company (supra). But the interpretation there given was by a divided court, and was, as it seems to us, so literal as to lose sight of the purpose and intent of the parties. The language used is capable of the construction given, but it leads to consequences which we cannot think were within the meaning of the parties to the contract, It does not seem possible that a death, caused as was the present, was not intended to be covered by this policy. A death by choking would leave no external or visible sign upon the body; neither would suffocation by gases in a burning building, or drowning, or charcoal fumes, or poison feloniously administered or taken by accident. If deaths caused by such means were not covered by this policy it was a delusion and a snare. If the language of the policy is capable of two constructions that most favorable to the insured should be adopted. It will not do. to sacrifice the substance of the contract to the letter if such a result can be reasonably avoided. “ Conditions and provisos in policies of insurance are to be construed strictly against the underwriters as they tend to narrow the range, and limit the force of the principal obligation.” (Hoffman v. Ætna Ins. Co., 32 N. Y., 405.) A provision of a policy of fire insurance, forfeiting it if the property becomes in any way incumbered without the consent of the company written on the policy, does not include or refer to incumbrances by judgmeut or by operation of law in invitum, although such incumbrances are within the letter of the contract of insurance. (Baley v. Homstead Ins. Co., 80 N. Y., 21.) Nor will a condition of a life policy avoiding it if the insured “ died by his own hand or act, voluntarily or otherwise ” exempt a company from liability in case of a purely accidental death caused by poison taken by the assured through mistake or ignorance. (Penfold v. Universal Ins. Co., 85 N. Y., 317.) Yet the strict literal reading of the words used would include sxrch a case. To the same effect are Colt. v. Phœnix Fire Insurance Company (54 N. Y., 595) and Dilleber v. Home Life Insurance Company (69 id., 256). The cases sustaining this view are numerous and the principle will not be controverted.

Construed with reference to this rule of law and analogous decisions of courts, we conclude that the learned judge at circuit erred in holding that the policy did not extend to and cover a death by such an accident as the present. The case of Hill v. Hartford Insurance Company might well have justified such conclusion, but after a careful examination we think the rule there laid down was too strict and should have been modified in accordance with the purposes and intent of the parties and the rules of interpretation of such contracts to which attention has been called. The opinion of h£r. Justice Follett in that ease and the authorities by him cited produce a conviction that an accidental death under the circum.stances of the present case constituted a good cause of action under defendant’s policy.

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

Hardin, P. J., and Follett, J., concurred.

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


author: Eollett, J.:

text:
    HENRY N. HAWKINS, Respondent, v. JAMES GILES, Appellant.

      Lease of a farm — when the title to the crops is in the tenant and subject to sale on execution against him.

    Tlie defendant leased to one Converse a farm and seven cows from April 1,1883, to April 1, 1884, and agreed to furnish, sufficient hay to keep the cows to grass in 1883. Converse agreed to pay $175 rent and “to feed out all the fodder on said farm that is raised on said farm, * * * and winter said stock (seven cows) through to grass in the spring of 1884 on hay.” In December, 1883, the plaintiff had an execution against Converse, under which about twenty-five tons of the hay grown upon the farm in 1883 was sold, the plaintiff becoming the purchaser. The defendant prevented the plaintiff from removing the hay, claiming that Converse had left the farm without fully paying the rent; that the hay was required to keep the cows through to grass, and that he was entitled to the manure which would be made by the hay being fed on the farm.

      Held, that the title to the hay was in Converse, and was subject to sale on the execution against him, and that the plaintiff was entitled to recover its value from the defendant. ■,
    Appeal from a judgment in favor of tbe plaintiff, entered in Oneida county upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before wbom tbe action was tried.

      Oswald JP. Backus, for the appellant.

      J. I. Sayles, for the respondent.
   Eollett, J.:

Appeal from a judgment entered upon a verdict for $133.88 damages, in an action for tbe conversion of hay. Tbe record does not show that a motion for a new trial was denied on tbe minutes, though the notice of appeal assumes the existence of such an order. James Giles, defendant, leased to Lewis Converse a farm and seven cows from April 1, 1883, to April 1, 1884, and agreed to furnish sufficient hay to keep the cows to grass in 1883. Converse agreed to pay $1Y5 rent, * * * and to feed out all the fodder on said farm that is raised on said farm, * * * and winter said stock (seven cows) through to grass in the spring of 1884 on hay.”

In December, 1883, the plaintiff had an execution against Converse, under wbicb about twenty-five tons of tbe bay grown upon tbe farm in 1883 was sold, tbe plaintiff becoming the purchaser. Tbe defendant prevented tbe plaintiff from removing tbe hay, and this action was brought to recover its value. Tbe defendant insisted that under tbe clause above quoted from the lease be was entitled to bold the bay as against the plaintiff,- because: (1). Converse left without fully paying tbe rent. (2). Tbe hay was required to keep tbe cows through to grass in 1884. (3). He was entitled to tbe manure wbicb would be made by the hay being fed on tbe farm. Tbe evidence does not show that tbe plaintiff before be purchased bad notice of tbe provisions of tbe lease; it only appears that defendant forbade tbe sale.

Tbe learned trial judge held that the plaintiff was entitled.to recover tbe value of the bay, and directed the jury to assess tbe damages, to wbicb defendant excepted. Tbe defendant also asked tbe court to rule that be had title to the bay under tbe lease, and also asked to go to tbe jury upon tbe construction of tbe contract. Johnson v. Crofoot (53 Barb. 574; S. C., 37 How., 59); Steffin v. Steffin (4 N. Y. Civil Pro. R., 179; S. C., 17 N. Y. Weekly Dig., 418); McCombs v. Becker (3 Hun., 342; S. C., 5 T. & C., 550), are decisive that tbe title to tbe bay was in tbe tenant instead of in the landlord, and that it was subject to sale upon tbe plaintiff’s execution.

Tbe judgment must be affirmed, with costs.

Harden, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    JAMES ZOLLER, Respondent, v. LEVI C. SMITH and CLAYTON WHEELOCK, Appellants.

      Costs on appeal in Justices’ Courts — when neither pa/rty is entitled to them.

    On October 29,1885, the plaintiff recovered in a Justice’s Court a judgment for $100 damages and ten dollars costs, from which the defendant appealed November 17, 1885, asking for a retrial, which was had in May, 1886, resulting in a verdict of twelve dollars for the plaintiff. Within fifteen days after the service of the notice of appeal the plaintiff duly served upon the defendants a written offer to allow judgment to be rendered in the appellate court in his favor for fifty dollars, which the defendants did not accept, nor did they serve any offer on their part.

      Held, that neither party was entitled to costs.
    Appeal from an order made by the county judge of Herkimer county, reversing a taxation of costs made by the county clerk of said county.
    October 29, 1885, the plaintiff recovered in a Justice’s Court a judgment for a sum of money only ($100 damages and ten dollars costs), from which the defendants appealed November 17, 1885, asking for a retrial, which was had in May, 1886, resulting in a verdict of twelve dollars for the plaintiff. Within fifteen days after service of the notice of appeal, the plaintiff duly served upon the defendants a written offer to allow judgment to be rendered in the appellate court in his favor for fifty dollars, which the defendants did not accept, nor did they serve any offer on their pajft.
    After the verdict in the County Court the clerk taxed the defendants’ costs at eighty-two dollars and fifty cents, deducted plaintiff’s verdict for twelve dollars and entered a judgment for defendants for seventy dollars and fifty cents. Upon plaintiff’s motion the County Court vacated the taxation of costs and the judgment, holding that neither party was entitled to costs and directed the clerk to enter a judgment for the plaintiff for the amount of the verdict, which was done. From this order the defendants appeal.

      Smith <& Steele for the appellants.

      J. B. Rafter, for the responaent.
   Follett, J.:

The appeal boob does not show when the return was filed, but in the absence of evidence, we must presume that the justice followed section 3053 of the Code of Civil Procedure, arid filed the return after ten, and within thirty days from the service of the notice of appeal.”

Section 3072 provides that: “ Either party may, at any time after the action is deemed at issue in the appellate court, and before the trial, serve upon the adverse party, a written offer to allow judgment to be taken against him, for a sum or property, or to the effect therein specified, with or without costs.” Section 3071 provides that: “ After the expiration of ten days from the time of filing the justice’s return, the action is deemed an action at issue in the appellate court.” An offer under section 3072' should state whether the judgment is offered, “ with or without costs,” while an offer served under section 3070 is to be silent in respect to costs. This offer is silent in respect to costs, and was “served within fifteen days after service of the notice of appeal,” and before “the action is deemed at issue in the appellate court,” and does not fall within section 3072, but within section 3070, which controls the question, which party, if either, is entitled to costs.

Section 3070 (as amended in 1885), provides that: “Upon an appeal * * * from a judgment for a sum of money only, either party may, within fifteen days after service of the notice of appeal, serve upon the adverse party * * * a written offer to allow judgment to be rendered in the appellate court, in favor of either party, for a specified sum.” This the plaintiff did, offering to reduce his judgment from $100 to fifty dollars. This section further provides: “ If the party, within ten days after service of the offer upon him, serves upon the party making the same * * " written notice that he accepts the offer, he must file it, with an affidavit of service of the notice of acceptance, with the clerk of the appellate court, who thereupon must enter judgment accordingly.” This the defendants did not do, nor did they make an offer.

The section further provides : “ Where an offer is made as above provided, the party refusing to accept the same shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum offered.” The defendants refused to accept the offer ; but the recovery being more favorable to them than the sum offered, they are not liable for costs to the plaintiff. It is clear that the plaintiff is not entitled to recover costs of the defendants.

The section further provides: “ If neither party make an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal.” This paragraph has no application to the case before the court because one party, the plaintiff, made an offer.

It may be that the legislature intended that the paragraph of the section which concludes with the words “than the sum offered,” should read, “ in which case he shall recover costs,” but neither such words, or equivalent words are in the section; and we are unable to find any authority for taxing costs in favor of the defendants. The defendants are not entitled to costs under section 3229, by reason of the plaintiff not being entitled to costs under section 3228.

I. The costs in actions appealed from Justice’s Courts to and re-tried in County Courts are provided for by article 3, title 8, of .chapter 19, sections 3070-3073, of the Code of Civil Procedure. Sections 3228 and 3229 are in article 1, title 1, of chapter 21, which regulates the recovery of costs in actions originating in the Supreme, Superior, County and Marine (now City) Courts. By reading the sections embraced within titles 1, 2 and 3, it becomes apparent, upon their face, that they are wholly inapplicable to actions begun in Justices’ Courts, appealed to and retried in County Courts.

The last sentence of subdivision 4 of section 3228 provides : “But the plaintiff is not entitled to costs under this subdivision, unless he recovers the sum of fifty dollars or more.” This is not only inapplicable to actions retried in the County Court, but is wholly incon.sistent with the sections regulating costs in such actions; because :a plaintiff may recover costs in an action retried in the County Court, though he recover less than fifty dollars. Section 3230, provides : “ Except as prescribed in the last two sections, the court may, in its discretion, award costs to any party, upon the rendering of a final judgment.” It has never been supposed that this section is applicable to actions retried in the County Court.. Many other provisions of the sections of titles 1, 2 and 3, might bo cited, which are as hostile to the idea that these titles are applicable to :re-trials in County Courts as are the provisions above cited.

Subdivision 13 of section 3347, provides : “ In chapter twenty, first, titles first, second and third, apply only to an action in one of the courts specified in subdivision fourth of this section.” Subdivision 4 provides : “ The remainder of chapter fifth, and the whole of chapter sixth, apply only to an action commenced, on or after the 1st day of September, 1877, in the Supreme Court, a Superior City Court, the Marine (now City) Court of the city of blew York, or a County Court.” By reading the third, fourth and thirteenth .subdivisions of section 3347 together, it is apparent that the term “action commenced ” in the fourth subdivision, and the term action in ” in the thirteenth subdivision, mean action begun, or originating in the courts enumerated in the fourth subdivision.

II. If titles 1, 2 and 3, of chapter 21, are applicable to appeals for retrials in County Courts, still sections 3228 and 3229 are made inapplicable by section 3237, which provides : “ The foregoing sections (secs. 3228-3237), of this article do not affect the recovery of costs upon an appeal.”

The case before us is evidently one which the law-malcing power has omitted to provide for; but this court cannot supply the omission, and the order must be affirmed, witli ten dollars costs and disbursements.

Hardin, P. J., and Boardman, J., concurred.

Order affirmed, with ten dollars costs and disbursements.