text:
    Thomas H. Appleby v. George Hollands, as Sheriff.
    (Supreme Court, Appellate Division, Fourth. Department,
    July 30, 1896.)
    Replevin—Pleading—Comflainp.
    A complaint which alleges that plaintiff was lawfully possessed of certain chattels and that on a certain day defendant wrongfully took them from plaintiff’s possession, and has ever since unjustly detained them and demands return of the property, sufficiently alleges a cause of action of replevin in the cepit.
    Appeal from judgment on report of referee.
    Action by Thomas H. Appleby against George Hollands,, sheriff of the county of Steuben. There was a judgment in favor of plaintiff, and defendant appeals.
    The referee found as conclusions of law, viz.: “(1) That the damages to the plaintiff are of the value of said property at the time of the trial, to wit: $17,661.62, and the interest thereon from the time said property was_ taken by defendant on the 20th day of October, 1893, to tlie date of this report, to wit, $1,692.55; total $19,354.18. (2) That the' plaintiff is entitled to judgment awarding to him the possession of the property described in the said amended complaint herein, with the sum of $1,692.56 for the wrongful detention thereof; and also for the sum of $17,661.62, the sum fixed as the value of said property if possession thereof is not delivered to the plaintiff, together with $1,692.56, for the wrongful detention thereof, with the costs and disbursements in this action.” The referee found as a fact: “(1) That on the 20th day of October, 1893, the plaintiff was in the lawful and actual possession of the property described in the said bill of sale and said amended complaint. (2) That on the said last-mentioned date the defendant wrongfully took and removed the said chattels from the said possession of the plaintiff, and that he has ever since wrongfully withheld and detained the possession thereof from this plaintiff. (3) That after the said wrongful taking of said to apparent contributory negligence on the part of the intestate.” The facts in this case differ from those in Waldell property, and on or about the 4th day of November, 1893, this plaintiff duly replevied the said property from the defendant.” He also found that the defendant required a return of the property, and it was delivered to the defendant. Also that some .time after the delivery of said property to defendant, as aforesaid, he sold all the same. Exceptions were filed to the referee’s report. Plaintiff, in his complaint, alleges that he was lawfully possessed of the chattels described in the complaint and that “on the 20th day of October, 1893, at Bath, N. Y., the defendant wrongfully took said chattels from the possession of the plaintiff, and ever since has unjustly detained the same, to the plaintiff’s damage of seven thousand dollars.” The complaint contained the usual demand for the return of the property. The answer contains a denial of the complaint, and an averment that the chattels are not, and were not the property of the plaintiff, “nor in his possession, but are the property of one Fred Moris, and were in the possession of your defendant by virtue of levies made thereon under certain executions in the hands of your defendant issued upon the judgment recovered aainst the said Fred Moris.” The answer also alleges that plaintiff’s claim of title and possession “is founded upon certain transactions had between the plaintiff and the said Fred Moris, and a certain organization or association purporting to be a domestic corporation known as the Fred Moris Company, which said transaction purported to convey from the said Fred Moris to the said the Fred Moris Company, and from the said the Fred Moris Company to the plaintiff therein a title to or some interest in the property in said complaint described, which dealings and transactions between the said Fred Moris, the said the Fred Moris Company, and the said plaintiff herein, were made for the purpose of hindering, delaying, and defrauding the ■creditors of said Fred Moris, and so done with the knowledge, aid, and connivance of said plaintiff, and are fraudulent, and the said transfers, if any, were thereby rendered void as to the creditors of the said Fred Moris.”
    J. L. Slater, for appellant..
    M. Rumsey Miller, Monroe Wheeler, and Reuben R. Lyon, for respondent.
   HARDIN, P. J.

—Abundant and satisfactory evidence was given to warrant the finding of fact made by the referee to the effect that on the 20th day of October, 1893, the plaintiff was in the lawful and actual possession of the property described in the complaint; and the evidence satisfactorily establishes that at the last mentioned date the defendant took and removed the said chattels from the possession of the plaintiff; and the defendant continued to withhold the possession thereof from the plaintiff until the plaintiff, by proceedings taken in this case, replevied the property from the defendant. Dury v. Wilson, 4 App. Div. 232, 38 N. Y. Supp. 538. The complaint contained language fit and appropriate to uphold an action of replevin in the cepit. Griffin v. Railroad Co., 101 N. Y. 352, 4 St. Rep. 56; Wheeler v. Lawson, 103 N. Y. 40; 2 St. Rep. 791; Stowell v. Otis, 71 N. Y. 36. In Johnson v. Carnley, 10 N. Y. 570, it was held, vz. :i

“An actual possession of the property by. the plaintiff, coupled with an equitable interest therein at the time of the seizure by the sheriff, is sufficient to maintain the action, and to entitle the plaintiff to a return of the property, although the general property and right of immediate possession be at the same time in a stranger, the defendant showing no privity between himself and such stranger.”

That case- was followed in Frost v. Mott, 34 N. Y. 257, in which case it was said:

“Actual possession, accompanied by an equitable interest in the plaintiff at the time of the seizure by the officer, is sufficient to maintain the action, and entitle the plaintiff to & return of the property.”

It was found upon adequate evidence. that on the 13th of October the property described in the complaint was sold, transferred, and delivered to the plaintiff. The sale to the plaintiff was by the Fred Moris Company, and the bill of sale which was executed by that company to the plaintiff on that day is set out in the findings of fact made by referee. The plaintiff’s evidence showed that after the execution of that bill-of sale he took possession of the property, and was in peaceable possession of it when the sheriff came to the place where it was stored, and forcibly took possession of it from the plaintiff. In the bill of sale made by the Fred Moris Company to the plaintiff there was a reservation of the title to the said property “until the purchase price thereof is fully paid, and to that end it is further agreed that the said property and the whole thereof shall be and remain the property of the first party until the •said purchase price is paid; and that as fast as the said second party shall sell the property aforesaid he shall pay the avails thereof unto the party of the first part or its assigns, to be applied upon the purchase price thereof. Said second party agrees to pay for the property aforesaid, the sum of fifteen thousand one hundred twenty-eight and 46-100 dollars ($15,128.46) according to the conditions of a promissory note this day made by him to the said Fred Moris Company. A fair implication from that statement as-well as from the evidence which was given at the trial, is to the effect that the Fred Moris Company was the owner of the property at the time of executing the bill of sale. Nothing appears in the evidence to impeach the title or ownership of that company to the property at the time it entered in the bill of sale mentioned. It must be' assumed, therefore, that it conferred upon the plaintiff an equitable title and interest in the property and authorized the plaintiff to-receive, have, hold' and maintain possession of the property against every one except the Fred Moris Company, or some party claiming title or interest in or through that company. The evidence does not disclose that the defendant was entitled to possession, or any title or interest in the property derived from the Fred Moris Company. The defendant in no way proved that he held an execution upon a judgment, or in any way represented the creditors of the Fred Moris Company. Nothing appears in the evidence that enables the defendant to question the validity of the transfer by the Fred Moris Company to the plaintiff; nor did he give any evidence that the note mentioned in the bill of sale had not been paid; nor when the note came due.

It is unreasonable, therefore, to ¡^resume that the note in question was payable on demand (Cornell v. Moulton, 3 .Denio, 12), nor that the note had been paid prior to the taking possession of the property in question from the plaintiff. If that presumption is followed to its legitimate end, it would seem to justify an inference that the plaintiff had become the owner of the property.

2. It is contended by the appellant,that the transfer made to the plaintiff through the medium of the bill of sale “ivas, as regards creditors, void.” Our attention is directed to a , section of the statute of frauds (4 Banks & Bro. 8th Ed. p. 2591, § 5) which provides that:

“Every sale made by a vendor * * ® by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by immediate delivery, and be followed by an actual and continued change of possession, of the tilings sold, mortgaged or assigned, shall be presumed to be fraudulent and void as against creditors of the vendor, or the creditors of the person making such assignment or susequent purchasers in good faith; and shall be conclusive evidence of fraud, unless it shall be made to appear on the part of the persons claiming under such sale or assignment, that the same ivas made in good faith and without any intent to defraud such creditors or purchasers.”

First, we find no evidence in the case that the defendant-was a creditor of the vendor, to wit, the Fred Moris Company, or that he was a purchaser from that company; and, secondly, as a matter of fact the referee has found, in effect, that the possession and interest acquired by the plaintiff was in good faith, and without any intent to defraud creditor's of the vendor. If proof had been green of the judgment under which the defendant claimed to have an execution against Fred Moris, that act would not have established that the defendant represented creditors of the Fred Moris Company.

Applying the principle that questions arising under the statute to which reference has been made are questions of fact Plant v. Gabler, 77 N. Y. 461), it may be said that the evidence in the case is insufficient to indicate any fraud on the part of the vendor of the property or of the vendee. Nor does the evidence indicate that the defendant was a creditor, or represented a creditor of the plaintiff. The only claim made by him was that he was acting under executions against one Fred Moris individually, and not against the plaintff, or his vendor, and therefore that would furnish no protection. Wheeler v. Lawson, supra. In Hoyt v. Van Alstyne, 15 Barb. 568, it was said that proof that the party was in possession claiming title is sufficient prima facie evidence to enable him to maintain the action, and no one but the true owner, or one connecting himself with the true owner in some way, is at liberty to impeach his title. An execution only justifies the officer in taking the property of the defendant therein which is liable to be levied upon and sold as the property of such defendant. It is contended by the appellant, that after the bill of sale, which was introduced in evidence by him, the burden' was thrown upon the plaintiff to show himself a bona fide holder of the property, and that the conditional sale was made in good faith and without intent to hinder, delay, or defraud creditors. What has already been said we think sufficiently answers that position. However, he calls our attention to Groat v. Bees, 20 Barb. 26. That case is unlike the one before us, as in that case the defendant claimed title as a subsequent purchaser in good faith. Our attention is also invited to Stimson v. Wrigly, 86 N. Y. 333. We think it is not applicable to the case in hand, as there the contest was over the validity of a sale by a creditor who was in a position to successfully contest the sale made to the plaintiff. Nor does Tilson v. Terwilliger, 56 N. Y. 273, aid the contention of the appellant. That was an action between the vendee and a creditor of the vendor to determine title of the former to the property purchased, and in that case it was held that the question was one of fact for the jury. Nor does May v. Walter, 56 N. Y. 8, sustain the contention of the appellant. In that case the plaintiff’s title to the property which he had purchased of the debtor was challenged by the defendant, who was sheriff of the county of Kings, under an attachment against Giesman, and the sheriff represented a creditor of Giesman; and it appeared in that case that the goods which the plaintiff had purchased of Giesman had not come into the plaintiff’s possession uni 11 after the attachment had been issued under which they were taken by the defendant. We are of the opinion that the case was properly disposed of by the leaned referee, who delivered an interesting opinion upon several questions arising upon the hearing.

Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: HARDIN, P. J.

license: Public Domain

text:
    Thomas W. Richmond v. New York Central and Hudson River Railroad Company.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Master and servant—Negligence op Master—Injuries to servant.
    A railroad company is not liable to a brakeman who was thrown from the to,p of a car by a wire which had ¡been stretched over the track by a third person, and had sagged down in consequence of its fastenings having been loosened by a storm, where there was no evidence that the eompany consented that the wire should cross its track, or had any interest in or connection with the wire.
    Appeal from circuit court, Onondaga county.
    Action by Thomas W. Richmond against the New York Central & Hudson River Railroad Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $500, and from an order denying a motion for new trial, made on the minutes, defendant appeals.
    Plaintiff’s complaint alleges that he was in the employ of the defendant as a freight brakeman on the 29th day of July, 1894, and at the time of the injuries of which he complains, he was made middle brakeman on a freight train running westward through the village of Cana joharie, and that he ivas standing on top of one of the freight cars, “when suddenly he ran and was carried against a wire which was suspended in midair over said railroad track, and at said village .of Ganajoharie, and over the car on which he ivas standing; that he was caught by said wire, and dragged and lifted from said car to another car, and thrown upon the same with great violence, receiving the injuries which are stated. The complaint alleges that the defendant was guilty of carelessness and negligence which caused or contributed to the accident “in that it and they caused or suffered said wire to be strung or suspended across or over its said railroad track in a careless and negligent manner ; that it was carelessly and negligently attached or fastened to the limbs of growing trees on either side of said railroad track, in a careless and negligent manner, so much so that when the wind blew, or the said trees or limbs were otherwise caused to move or sway, that said wire was liable to become loosened from said limbs or said trees, or the brackets on -which they were attached were liable to become loosened from said limbs, so that the wire could drop down for some distance, and so low that it would become a dangerous obstruction to brakemen standing on freight trains passing under said wire.” It is alleged that the defendant “had due and sufficient notice that it was suspended over said railroad track, and that it was suspended in a careless and negligent manner, and in a manner which would cause it to become a dangerous obstruction to its employes and brakemen standing on the tops of trains passing under said wire.”1
    The defendant, in its answer, admits that it is a domestic railroad corporation engaged as lessee and operating the West Shore Railroad, extending easterly and westerly through the village of Canajoharie; and that the plaintiff was in the employ of the defendant as freight brakeman on the 29th day of July, 1894. At the close of the plaintiff’s evidence the defendant moved for a nonsuit on the grounds; 1 “(1) That there has been no negligence proven in this case on the part of the defendant; (2) that the falling of the wire ' as described by the witnesses was without the fault of the defendant, and the defendant is not chargeable for any injury which may have resulted therefrom.” The motion was denied, and an exception was taken. At the close of the whole evidence the motion was renewed on the grounds already stated, and on the further ground that “there is no proof of any negligence, or of that negligence in this case on the part of the defendant which makes the defendant liable to the plaintiff for the injury on this occasion. The motion was denied and an exception was taken. The court was requested to charge: “If this wire was erected without the affirmative knowledge and consent of the defendant, and did not appear dangerous to ordinary inspection, then the defendant is not liable." There was a refusal and an exception. The defendant appeals from the order and from the judgment entered upon the verdict.
    Frank Hiscock, for appellant.
    M. E. Driscoll, for respondent.
   HARDIN, P. J.

Ten Eyck was in the livery business at the time of the accident, having a stable on the north side of the railroad track, and plaintiff received the injuries complained of about 3 o’clock on the afternoon of -Sunday, July 29th. They were caused by the wire, which had sagged so that when he was passing under, it it came in contact with his body and carried him from the car on which he was standing to the one next in- the rear thereof causing the injuries of which he complains. The wire had fallen in consequence of a storm that had recently, within the space of about an hour, taken place, the fastenings of one end thereof having been detached from the tree; and from the fact that the smoke-stack of the engine had passed along and did not come in contact with the wipe, it is inferable that it had sagged after the engine had passed, and before that part of the train came under the wire on which the defendant was standing. The wire was placed up some 30 feet above the track at the instigation of Ten Eyck, Avho employed Nott and Smith to do the AATork of stringing the wire. There is no evidence in the case to indicate that the defendant ever gaAre any consent that the Avire should cross over its property, or the property of Avhich it was lessee. There is no eAridence to indicate that the defendant had any interest in the wire, or the use thereof, or took any part by- itself or any of its_agents in stringing the wire across its roadbed. Neither of the trees upon which the Avire Avas strung stood upon the land of the defendant or lessee. The train consisted of about 60 cars, and Avas passing around a curve, and the plaintiff seems to haAre stood looking towards1 the rear of the train at the time when he was caught by the wire, and did not see or know of its presence until his body came in contact Avith it. Ten Eyck’s liA'ery stable Avas on the north side of the tracks, and the hotel to Avhich the Avire was strung Avas on the south side of the tracks. The Avire Avas attached to the cornice of a shed, and then to the limbs of an elm tree north of the track, about 30 feet high, then to the limb of an elm tree diagonally across the tracks, about 30 feet high, from which it continued to the hotel; and the trees were about 135 feet apart. Apparently the Avind which occurred just before the accident caused the bracket on the north tree to which the wire Avas attached to- become loosened from the tree, so that the Avire sagged down Brackets were,nailed on the limbs of the elm trees several feet from the trunks of the trees upon the limbs that were three or four inches in diameter. Insulators Avere fastened on the brackets and the Avire passing thereto in such a manner that there Avas no reasonable room for play AA'hen the branches SAyayed.

The wire was broken at the time of- the accident and the bracket on the north side remained attached to the wire. There Avas no eAridence given upon Avhich the defendant could be charged, with any act or transaction in connection with placing the wire across its property. We think the evidence was insufficient to charge the defendant with notice or knowledge that the wire was insecurely placed, and that it was attached in an improper manner, or that it was left in a dangerous condition after the employes of Ten Eyck had placed the same there by the direction of Ten Eyck. In Wright v. Railroad Co., 25 N. Y. 566, Allen J., said:

If the injury arises from defect or insufficiency in the ma- ■ chinery or implements furnished to the servant by the master, knowledge of the defect or insufficiency must be brought home to the master, or proof given that he was ignorant of the same, through his own negligence and want of proper care; in other words, it must be shown that he either knew or ought to have known the defects which caused the injury. Personal negligence is the gist of the action.”

That doctrine was approved in Warner v. Railway Co., 39 N. Y. 478. The duty of the defendant in furnishing a reasonably safe place for the discharge of the duties of the employe ■was to exercise ordinary prudence,—such prudence as a man of ordinary care and caution would exercise in the same line of business acting with regard to his own safety, were, he to occupy the place himself. Carlson v. Bridge Co., 132 N. Y. 273; 43 St. Rep. 942. Apparently the wire had been placed in position by a competent and skillful person, and the evidence does not disclose that anything had occurred which was calculated to give notice or knowledge to the defendant of any unsafely in the condition of the wire. See Birmingham v. Railroad Co., 137 N. Y. 13; 49 St. Rep. 898.

Respondent calls our attention to Vosburg v. Railroad Co., 94 N. Y. 374, and Ave find, on examination of the case, that it differs A7ery essentially from the one before us. In that case the bridge, at the time of the purchase thereof by the defendant, Avas unsafe and dangerous by reason of defects in its orginal build and construction, “and such defects Avere obvious to the eye of a skilled inspector, and could have been easily and surely ascertained by proper examination.” Respondent also calls our attention to Donnegan v. Erhardt, 139 N. Y. 468; 29 St. Rep. 589. Upon an inspection of that case avc find that the defendant is required to exercise reason' able prudence and care in keeping the track free from obstructions, animate and inanimate; and the particular fact, disclosed in that case to charge the defendant with negligence related to its omission to comply with the statute, Avliich requires eArery railroad company to build and maintain fences on the sides of its road. We think there Avas not sufficient eA7idence of any neglect of duty on the part of the defendant in respect to the Avire in question to Avarrant the court in demting the motion for a new trial.

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

All concur.


text:
    Thomas Agar v. Mart J. Curtiss.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Execution—Leave to issue—Judgment in justice’s court.
    Under Code Civil Procedure, section 3070, which provided, before the amendment of 1894, that the judgment of the justice’s court, a transcript of which, if filed and docketed in the county clerk’s office, is thereto deemed a judgment of the county court, and must be enforced accordingly, execution may be issued on such judgment, though the right to sue on it is barred by limitation.
    Appeal from Wyoming county court.
    Action by Thomas Agar against Mary J. Curtiss. A judgment in favor of plaintiff in a justice court on the confession of defendant was entered for $393.37, damages and costs. A transcript of the judgment was filed in the clerk’s office of Wyoming county, where the judgment was docketed. Plaintiff moves for leave to issue execution on the judgment. Motion was granted, and defendant appeals.
    On the 3d of January, 1888, Thomas Agar recovered a judgment in a justice court in the county of Wyoming against the defendant upon the confession of said defendant of judgment in the sum of $393.37, damages and costs. On the 3d of January, 1888, the plaintiff procured a transcript, and caused the same to be filed in Wyoming county clerk’s office, where the judgment ivas duly docketed on that day. On the 23d of February, 1888, the transcript of said judgment ivas filed, and the judgment ivas docketed in the clerk’s office of Erie county. On the 8th day of April, 1888, the plaintiff, at the town of Warsaw, Wyoming county, died, and on the 30th of April, 1888, Mary Agar and Thomas B. Catton were duly appointed administrators, and letters of administra! ion were issued to them, and they took upon themselves the duty of such administration, and on the 9th of October, 1895, they, as administrators, sold, transferred, and assigned said judgment to T. Delancey Agar, who became the owner of the judgment, and he recorded his assignment in the Wyoming" county clerk’s office. In his affidavit used upon the motion for leave to issue execution he stated that the said judgment was wholly unpaid and unsatisfied, that no execution had been issued on said judgment within five years after the entry thereof, and that no exception had ever been issued» Notice of motion was duly given, and the affidavit of T. Delancey Agar was duly served, and on the 13th of January, 1896, the county court of Wyoming county made an order, after hearing the parties, in the following language: “Ordered, that an execution upon said judgment issue in said action by the clerk of the county of Wyoming, or of any other county in whose office a transcript of said judgment-may have been filed, and said judgment docketed in favor of said assignee of said judgment., to the sheriff of the proper county, upon filing in any such' clerk’s office a certified copy of this order.” From that order the defendant appeals to this court.
    Elihu E. Sherman, for appellant.
    Frank W. Brown, for respondent.
   HARDIN, P. J.

—It was the duty of the justice of the peace to furnish a transcript of the judgment. Code Civ. Proc. § 3017. It was the duty of the county clerk of Wyoming county to file the same, and docket the judgment “as of the time of the receipt of the transcript, in the book kept by him for that purpose.” He performed that duty in pursuance of section 3017 of the Code of Civil Procedure, as it existed January 3, 1888. That section then provided, viz.: “Thenceforth the judgment is deemed a judgment of the county court of that county and may be enforced accordingly.” In 1891, section 3017 of the Code of Civil Procedure was amended so that the county clerk -was authorized to file: the transcript and docket the judgment “if within six years, after the rendition thereof.” It is to be observed that that limitation was not in the section at the time the transcript was filed and the judgment docketed, to wit, January 3, 1888. It is further provided in section 3017 of the Code that after filing and docketing, viz.: “Thenceforth the judgment is deemed a judgment of the county court of that county and must be enforced accordingly.” * * * Notwithstanding the provision we have just quoted, it was held in Dieffenbach v. Roch, 112 N. Y. 621; 21 St, Rep. 570, that an action may not be brought upon such a judgment after six years from the time of its rendition. It has been held in several cases that under the law as it was prior to the amendment of 1894 an application for leave to issue execution might be granted. See sections 1251, 2435, Code Civ. Proc.; In re Hallock’s Estate (Sup.), 29 N. Y. Supp. 555; Waltermire v. Westover, 1 N. Y. 16; Johnson v. Railroad Co., 54 N. Y. 416; Kincaid v. Richardson, 25 Hun, 237; Herder v. Collyer (Com. Pl.)5 6 N. Y. Supp. 513; Green v. Hauser (Super. Buff.), 9 N. Y. Supp. 660; Bolt v. Hauser (Co. Ct.), 10 N. Y. Supp. 397, affirmed 57 Hun, 567; 33 St. Rep. 343; Brown v. Hyman (Co, Ct.), 27 N. Y. Supp. 436; Townsend v. Tolhurst, 57 Hun, 40; 32 St. Rep. 21; Bank v. Quackenbush (N. Y.), 38 N. E. 728. Davidson v. Horn, 47 Hun, 51, differs from the case in hand, •as the transcript was filed and the judgment docketed in the county court more than six years after the rendition of the judgment, and in the course of the opinion it was said:

‘‘The right of the judgment debtor to avail himself of the statute of limitations as a bar became perfect before the transcript was filed with the clerk. And the right ivas a vested one, which could not be defeated even by subsequent legislation. * * And it is difficult to see how the defendant could be divested of such right by the act of filing the transcript and docketing the judgment at the instance of the judgment creditor, inasmuch as the statute does not declare that it may be done after the time such right has accrued to the judgment debtor.”

Following the cases cited they lead to an affirmance of the order.

Order affirmed, with $10 costs and disbursements.

All concur.


text:
    James B. Sharp v. Milwaukee Mechanics’ Insurance Co.
    (Supreme Court, Appellate Division, Fourth Department,
    July 11, 1896.)
    Insurance—Prooes oe loss—Waiver.
    The insured after loss verbally notified the insurance agent, who thereupon notified the insurance company, which sent its adjuster to adjust the loss. An agreement was then entered into for the appraisal of the loss by the adjuster. The assured frequently applied to the insurance agent for blanks on which to make out proofs of loss and the agent promised to furnish them, and informed the assured that the insurance company had been notified, and that the check for the amount of the appraisal would soon be received. Afterwards and after the time limited by the policy, the assured sent proofs of loss to the insurance company, which received and retained them without objection. Held, that the provision of the policy that proofs of loss should be made within a certain time was waived.
    Appeal from judgment on report of referee.
    Action by James B. Sharp against the Milwaukee Mechanics’ Insurance Company, impleaded, on a fire insurance policy. Judgment was rendered in favor of plaintiff for $569.76 and costs, and,defendant insurance company appeals.
    On the 18th day of July, 1892, the appellant, in consideration of $3.60, paid by the plaintiff to Samuel J. Jec-oby, its duly-authorized local agent, made, executed, and delivered to the plaintiff its policy of insurance, whereby it insured the plaintiff against loss or damage by fire to the amount of $600 upon his two-story frame, shingle-roof dwelling house situated on the west side of Ttumsey street, in the village of Seneca Falls, N. Y., for three years. On the 1st day of October, 1892, the dwelling house was destroyed by fire, with-' •out any fault of the plaintiff. The referee finds: “That, immediately after said fire, the plaintiff verbally notified said Samuel J. Jacoby, the local, agent of said company, as aforesaid, who thereupon at once notified said company by telegraph and by letter of said loss. That pursuant thereto, and on or about the 10th day of October, 1892, said defendant ■sent its adjuster to Seneca Falls, to adjust said loss. That an agreement in writing was then and there entered into between plaintiff and defendant, pursuant to the terms of said policy of insurance, by which the amount of loss was to be appraised by said adjuster for said company, and one B. F. Peck for plaintiff; and an award in writing pursuant to said submission of appraisal, was thereupon duly made, by which the amount of said loss was duly fixed and agreed upon between said parties at the sum of four hundred and eighty dollars and thirty-four cents, which award was immediately thereafter delivered by said adjuster to said company. That the plaintiff frequently applied to said Jacoby for blanks to make out proofs of loss within the time limited by terms of policy for so doing. That Jacoby promised to furnish same, and informed plaintiff that the defendant had been notified, and that the check for the amount of appraisal would soon be sent on; and plaintiff relied upon said statements. That on the 9th day of December, 1892, and more than sixty days before the commencement of this action, the plaintiff made and executed proofs of loss in writing in due form, and properly verified, and mailed same to defendant company; and said proofs were received by it at its New York office on the 10th day of December, 1892, and have been ever since retained by said company without objection. * * * ® ’ That said defendant, Milwaukee Mechanics’ Insurance Company, by entering into said agreement of arbitration and appraisal before expiration of the time within which proofs of loss should have been furnished, and the retention of same without objection, has waived the earlier furnishing of same, as required by the terms of .its said policy. That the sum of four hundred eighty dollars and thirty-four cents became due and payable from said defendant to the plaintiff herein on the 7th day of February, 1890, and remains wholly unpaid.”
    The appellant filed four exceptions to matters mentioned in the referee’s report. Only two of them, however, relate to questions of law; (1) That the defendant is indebted to the plaintiff in the sum of four hundred eighty dollars and thirty-four cents; (2) that the defendant, Wayne Building, Loan and Accumulating Fund Association, has interest in said recovery to the amount of two hundred and twenty-six dollars and three cents.
    Satterlee, Yoeman & Taylor, for appellant.
    J. N. Hammond, George W. Pontius, and S. N. Sawyer for respondent.
   HARDIN, P. J.

No case containing exceptions is presented, and the only questions that can be considered are those aiusing upon the judgment roll and exceptions to the findings of law by referee. The appellant, in order to succeed, must show “that the trial court could notin any view of the facts found, properly have ordered judgment for the plaintiff.” Insurance Co. v. Barnard 96 N. Y. 525

Appellant’s defense is predicated upon the failure of the plaintiff to make proofs of loss within the sixty days mentioned in the stipulation in that regard in the policy. It must be assumed that the stipulation requiring proofs of loss to be made and filed within sixty days, is a condition precedent to the right to recover upon the policy.

“These conditions, which relate to matters after the loss,, have for their general object to define the mode in which an accrued loss is to be established, adjusted, and recovered after the reciprocal rights and liabilities have become fixed by the terms of the contract, and are to receive a more liberal construction in favor of the insured. In determining the liability of the defendant, it is entitled to the benefit of its "contract, fairly construed, and can stand upon all of its stipulations. But when its liability has become fixed by the capital fact of a loss, within the range of the responsibility assumed in the contract, courts are reluctant to deprive insured of the benefit of that liability by any narrow or technical construction of the conditions and stipulations which prescribe the formal requisites by means of which this accrued right is to be made available for his indemnification.”

In the case in hand, the appraisal agreement is not produced or set out in exact language in the referee’s report. However the referee has found, as matter of fact, viz.:

“That an agreement in writing was then and there entered into between plaintiff and defendant, pursuant to the terms of said policy of insurance, by which the amount of loss was to be appraised by said adjuster for said company, and one B. F. Peck for plaintiff; and an award in writing, pursuant to said submission of appraisal, was thereupon duly made by which the amount of said loss was duly fixed and agreed upon between said parties at the sum of four hundred and ■eighty dollars and thirty four cents, which award was immediately thereafter delivered by said adjuster to said company.”

Nor is that all that appears in the referee’s report which tends to indicate that there was a waiver of the restrictive language in respect to the formal proofs of loss. The referee has found as a fact that the local agent, Jacoby, informed the plaintiff that the defendant had been notified, and also promised “that the check for the amount of appraisal would soon be sent on; and plaintiff relied upon said statements. There is the further fact found by the referee,to wit, that on the 9th day of December, 1892, after the adjustment under agreement of the 10th of October, and after the adjustment as already mentioned had taken place, and the adjuster had received the award of the parties chosen to estimate the loss, formal proofs were made by the plaintiff, “in writing, in due form, and properly verified, and mailed same to defendant company; and said proofs were received by it at its New York office on- the 10th day of December, 1892, and have been ever since retained by said company, without objection.” The plaintiff is entitled to avail himself of all the facts stated by the referee, and the legitimate inferences deducible therefrom upon the question of waiver of strict performance. The construction given as to the matter of fact by the referee is made apparent by his further finding of fact, to wit:

“That said defendant Milwaukee Mechanics’ Tnsuance Company, by entering into-said agreement of arbitration and, appraisal before expiration of the time within which proofs of loss should have been furnished, and the retention of same without objection, has waived the earlier furnishing of same, as required by the terms of its said policy.”

Appellant is not in a situation to review the findings of fact as being against evidence or unsupported by evidence. It can only review the conclusion of law pronounced upon the facts stated in the report of the referee, as we have already intimated.

In Lowry v. Insurance Co., 32 Hun, 329, the policy contained the usual clause requiring proofs of loss to be given and verified, and no proofs of loss were ever sworn to or rendered by the party insured; “but evidence was given tending to show that his failure to make and serve them was caused by the statement and acts of one McCurdy, an agent of the company, and that McCurdy had authority to waive the presentment of formal proofs of loss, and intended to -waive them in this case.” That case was affirmed by the ■court of appeals in April, 1885. See 105 N. Y. 646.

Appellant calls attention to Walker v. Insurance Co., 89 Hun,331, G9 St. Re.p 817, which involved several questions relating to the restrictive clause in an insurance policy, and in that case it was said: “It is clear that the policy net er took effect.” That case differs essentially from the one before us, and we think nothing is found-in the opinion inconsistent with the views already expressed herein.

We think the conclusion of fact reached by the referee that the defendant had “waived the earlier furnishing of same, as required by the terms of its said policy,” and the finding of fact that the amount of the said policy became due before the commencement of this action, and remains-wholly unpaid, Avar ranted the eon elusion of kvw that the appellant “is indebted to the plaintiff,” as stated by the referee.

The foregoing vievva lead to the conclusion that the report of the referee should remain in force. Judgment, affirmed., with costs. All concur.


author: FOLLETT, J. HARDIN, P. J, ADAMS, J.

text:
    John Zwack v. New York Lake Erie and Western Railroad Co.
    (Supreme Court, Appellate DÍA'ision, Fourth Department,
    July 30, 1896.)
    1. Railroad companies—Accidents at crossing—Question for jury.
    It is a question for the jury whether the train ran over the crossing at which plaintiff was injured at a speed exceeding six miles per hour in Adulation of a city ordinance Avhere seA'eral witnesses testified that the train was running twenty miles an hour, and none of the trainmen were called as witnesses, though a passenger on the train testified that it Avas not running over six miles an hour.
    2. Same—Contributory negligence.
    It is a question for the jury whether plaintiff, a boy eleven years old,, who was struck by defendant’s locomotive at a street crossing was guilty of contributory negligence, where he stopped, before going on the track, to allOAV an engine to pass and then after looking both Avays went on the track and Avas struck.
    3. Municipal corporations—Establishment of street—Presumption.
    Evidence that a street had been used by the public for five years is sufficient to raise a presumption that it is one of the public streets of the city.
    Appeal from circuit court.
    Action by John Zwack, an infant, by his guardian ad litem, against the New York, Lak,e Erie & Western Railroad Company, for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an older denying a motion for a neAV trial, made on the minutes, defendant, appeals.

      Adelbert Moot and Charles V. Nellany, for appellant.
    H. H. Bacon, for respondent.
   FOLLETT, J.

This action Avas begun NoA^ember 19, 1804. to recover damages for a personal injury, caused, it is alleged by the negligence of the defendant. There is no exception to a ruling on the admission or exclusion of evidence in the record, and but one exception to the charge is argued. The questions presented arise on the exception taken to the denial of defendant’s motion for a nonsuit. The motion Avas based on the grounds that the evidence failed to shoAV that the defendant was negligent, or that the plaintiff Avas free from negligence contributing to the injury. The oidy exception to the charge discussed by the appellant is the exception to the refusal to charge that the eAÚdence Avould not justify a finding that the train Avas running at a negligent rate of speed. The accident occurred at about noon on the 24th day of October, 1804, on Hydraulic street, in the city of Buffalo, Avhich is crossed at grade by the defendant’s double-rack. railroad. Hydraulic street extends northerly and southerly through the city, and defendant’s railroad crosses it at right angles. Besides the two main tracks crossing this street, there are three side tracks on the south side of the main tracks, and two side tracks on the north side of the main tracks. In addition to these tracks crossing the street, there are three other side tracks south of the main tracks, and east of Hydraulic street, Avhich do not cross it. The undisputed evidence is that these side tracks east of Hydraulic street are used for the storage of disabled and other cars, and the plaintiff testified that on the occasion in question there were some cars standing on the most southerly of the three side tracks Avhich cross the street, and that on the next, side . track north there Avere standing a ‘Svhole lot” or “string of cars.” Another Avitness testified that on the occasion in question two of these side tracks were full of cars, the first one being about 35 feet east of the middle of Hydraulic street. This evidence was not disputed by the defendant, which gaAre no e\ddence tending to shoAV that the side tracks east of Hydraulic street Avere free from standing oars, so that foot passengers could see trains approaching from the east. The plaintiff testified (and his testimony Avas not contradicted) that the cars standing on the track east side of Hydraulic street prevented him from seeing the train which, came from the east, and ran him doAvn. As before stated, this is a grade crossing. At the time of the accident, it avbs not guarded’ by a flagman, by gates, or m any other manner. The plaintiff Avas a boy ten years and six months old. and was on his Avay to school, Avalking northerly on the west side of Hydraulic street. As he approached the crossing, he saw two locomotives fastened together west of the street, arid going east on the first or south main track. He stopped, and waited for them to pass, and then looked both ways for the approach of trains, and seeing none, started to go forward and, as he reached the north main track, he was run down by a passenger train running west. One of the witnesses) who had the best opportunity for seeing the accident, testified that he was struck by the pilot. Another witness, called by the defendant, testified that he thought the boy was struck by the steps of the first baggage car. This witness was riding on the rear steps of the second baggage car, and was not in so good a position to see the accident as the first witness. Whether the bell on this locomotive was rung was not clearly established. The plaintiff and two or three witnesses did not hear it. One witness said he heard it ring, and one said there was so much noise made by the two locomotives running west that he could not tell whether the bell on the locomotive drawing this train was rung. The principal act of negligence on the part of the defendant relied on for a recovery was the speed at which this passenger train crossed this street. A witness familiar with railroads, sworn for the plaintiff, testified that the train crossed Hydraulic street at the rate of 1 ‘about twenty mil es an hour. ’ ’ A switchman in the employ of the West Shore Railroad, sworn for the defendant, testified that the train crossed Hydraulic street at the rate of about ■“twenty miles an hour.” A passenger on the train sworn for the defendant, testified that the train was not running “over six miles an hour” when it crossed Hydraulic street. The speed of the train was the important issue in the case, and it is a significant fact that none of the employes on it were called by the defendant to testify to the rate of.speed at which it crossed this street on this occasion. The evidence is ample to justify the jury in finding that* this train crossed this street at the rate of about 20 miles an hour, and that the side tracks on the south side of the main tracks were so filled with standing cars that they obstructed the plaintiff’s view of this train coming from the east.

The following city ordinance was read in evidence:

“It shall not be lawful for any steam railroad to propel any engine or cars across any public street at grade in the city of Buffalo ata greater rate of speed than six miles per hour, under a penalty of fifty dollars for each offence.”

The evidence in this case was amply sufficient to justify the conclusion that the defendant was guilty of negligence in the management of its business at this place and on this occasion, and that its neglect caused the accident. Whether the plaintiff was guilty of contributory negligence was, under the. evidence, a question of fact for the jury. He looked both ways, as he testified, for the approach of trains. One witness, however, testified that he did not see the plaintiff look in either direction for trainá; but looking to the east would, under the circumstances, have availed him little, for the view was obstructed bg the ears upon the sidings.

It is urged by the the learned counsel for the defendant to that it is not neglect for a railroad to cross a street ata high rate of speed and he cites in support of his contention cases arising out of accidents at the crossings of country highways. These cases have no application to the rate of speed at which it is proper to run trains over grade crossings in a populous city. The circumstances are entirely dissimilar. It has never been held, and. I think it will, never be held, that it is not evidence of negligence for a railroad to run its trains at the rate of twenty miles an hour over unguarded grade crossings in a city having a population of more than 250,000.

It is urged that the plaintiff failed to show that this street was legally laid out by the authorities of the city. It was shown by uncontradieted evidence that it had been used as a public street for five years for the passage of teams and footmen, Avhich was sufficient to raise a presumption that it was one of the public streets of the city. This being the state of the evidence, if the defendant had wished to raise the question that the ordinance of the city was not applicable to this case, it was its duty to give evidence to rebut the presumption arising from the evidence given by the plaintiiff. It is not necessary in crossing cases for plaintiffs to show that a country highway or a street in a city or village was Legally laid out, pursuant to the statutes in such case made and provided.

We find no error in this case, and the judgment and order should be affirmed, with costs. All concur except ADAMS, J„, dissenting.

HARDIN, P. J,

(concurring) .—Plaintiff, as a witness, detailed the circumstances attending the accident. In stateing the manner in which he approached the track where the injuries occurred, he said:

<ll didn’t do anything else when I got there first, except wait for them engines. I looked both ways, east and west. I did not see any other trains coming from the west except these two engines. I did not see anything from the east. There were cars standing on the tracks where you switch, to prevent my seeing the railroad towards the east. Those trucks arc off from the main tracks. They are at the south side of the main -track. There were three switch tracks, right in the middle of the planks there.”

In the course of his cross-examination, the witness said:

“I don’t know how long it was from the time T carne up- and stood still, seeing those engines go along, and the time I got to the second main track. I can’t give you any idea about that. I did not see any other trains and other engines. I didn’t do anything else while I was standing there, except to watch those two engines.”

Upon the request of the appellant, the jury received special instruction upon the qiuestion as to the plaintiff’s-alleged contributory negligence. Defendant’s counsel asked the court to charge the jury “that, if evidence points to any negligence of the boy as contributing m any way to ihe accident, then that he cannot recover.” Tn response to that, the-court observed: “If the evidence shows any negligence, yes, certainly, he cannot recover.” Thus, it appears the jury •were explicitly instructed that plaintiff must be free of contributory negligence in order to recover. The jury have found upon that question upon evidence sufficient to uphold their verdict in favor of the plaintiff. While there-may be some doubt about it,—while, possibly, we might, if on the jury, have found otherwise,—it is in accordance with well -established' rules to accept the verdict of the jury. Mills v. Railroad Co., 5 App. Div. 11, 39 N. Y. Supp. 280.

In Pressman v. Mooney, 5 App. Div. 121, 39 N. Y. Supp. 44, it was said (page 123, 5 App. Div., and page 46,39 N. Y. Supp.):

“There was evidence tending to show that due diligence had been used by the older sister, who ivas in charge of the younger, and that the accident occurred through the reckless driving of the employes of the defendant. It is true that the evidence upon the part of the defendant gives an entirely different Aversion of the happening of the accident;1-but that Avas a question for the jury, and they have solved it in favor-of the plaintiff. We cannot interfere.”

Parsons v. Railroad Co., 113 N. Y. 364, 21 N.E. 145; Murphy v. Railroad Co. (Sup.) 10 N. Y. Supp. 354.

The foregoing víbavs, as Avell as those expressed in the-opinion of FOLLETT, J., lead me to concur in the result reached by him, and to rote for an affirmance of the order and judgment.

ADAMS, J.

(dissenting). This action was -brought by Mathias Meyer, as guardian ad litem, to recover damages for personal injuries alleged to have been sustained by John Zwack, an infant, by.reason of his coming into collision with a train upon the defendant’s railroad, at a point where sueh road crosses a public highway in the city of Buffalo," known" as “Hydraulic Street.” The undisputed evidence in the case shows that th this crossing there are two main tracks, running east and west; that north of the main tracks there are four side tracks; and that south of the main tracks there are five or six side tracks, but two of which actually cross Hydraulic street. The accident occurred at about noon, on the 24th day of October, 1894, at which time Zwack had started from his home to go to school. He testified that, as he walked along towards the railroad, he was eating some bread and sausage, which he carried in his hand. He approached the railroad crossing along a plank walk which extended through Hydraulicstreet,and over the d ef end ant’s tracks, xui til he came to the first side track o.r switch which crossed Hydraulic street. He testifies that, when he reached that point, he looked both ways, and saw two engines going east upon main trac-lc No. 1; that he stopped xmtil they had passed east of the crossing, and then started ahead, and, when he reached the second main track, lie was struck; and the evidence is that the engine which struck him was attached to a passenger train going west upon main track No. 2, which was moving at the rate of from 20 to 25 miles an hour. The plaintiff’s principal witness, and the only one who was in a position to see the entire occurrence, was Daniel Zink, who was riding upon one of the two engines, which, it appears, were attached together, as they passed over this highway; and he testifies that he observed the boy standing in the center of the side track south of the main tracks, as the engine passed by; that, as soon as they had passed over the highway, he started upon arun, or, as he expressed it, “The boy made a rush across, and was struck by the Erie passenger train,” and he further testified that, “from the time he started to cross these track he didn’t stop and turn his head or look either xvay, at all, but he looked right ahead, and that is the way he got run into.” No other witness, save the boy himself, attempts to testify to what took place immediately preceding the accident, and' the case is utterly destitute of any evidence which tends to show that, after starting from the point where he first stopped, the boy did look in either direction. There is some evidence that there were some freight cars standing-upon one or more of these side-tracks, but upon which one does not appear; and the evidence upon this subject is not at all clear. However, in the view which I take of the case, it is difficult to see how the presence of these cars upon either of the side tracks is a matter of very much consequence, fqr one has but to look at the map to see that, after the plaintiff had passed over the north side track, there was a distance of at least, 29 feet between the north rail of that track and the south rail of the second main track, and that, while passing over this distance, the ears standing upon any one of the side tracks could not by any possibility have obstructed the view of the train approaching from the east; and the witness Zink swears that, as he was riding upon one of these engines, the boy was in plain sight all the time until he was struck.

We therefore have this state of facts upon which the plaintiff seeks to recover damages against the defendant A boy between 10 ond 11 years of age, attempting to cross a railroad track with which he was perfectly familiar, and over which he was accustomed to travel every day, stopping at a point 20 to 25 feet from the main track, in order to allow two engines from the west to pass by, and as soon as they had crossed the highway, without taking the trouble to look in either direction to observe whether any other tryn was approaching, starting upon a run in a heedless, boy-like way, rushing headlong into a train approaching from the east, which lie might easily have seen and avoided had he looked at any time after passing over the last side track, inasmuch as, while he was running a distance of at.least 20 feet, the train ivas unquestionably in plain sight, with no intervening object to obscure the same, save these two engines, which could not possibly have prevented his seeing some portion of the approaching train had he looked to the east. Certainly such recklessness as was displayed by this boy would have been sufficient to have prevented a recovery upon tin? dart of an adult; and, inasmuch as the case was tried and submitted to the jury upon the theory that the boy was sui juris, I can see no reason why he should not be held to the same degree of accountability as he would had he been 20 instead of 10 years of age. Fowler v. Railroad Co., 74 Hun, 141, 56 St. Rep. 307; Tucker v. Railroad Co., 124 N. Y. 308, 36 St. Rep. 272.

I am of the opinion, therefore, that error was committed by the trial court in submitting the question of contributory negligence to the jury,,, and that, in consequence of, such error, a new trial should be directed, and for this reason am unable to concur in the views expressed in the prevailing opinion.


author: FOT JETT, J,

text:
    The People ex rel. Aaron Garrett v. Jansen D. Ogden.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    Bastardy—Proceeding by one op two overseers.
    Code .Criminal Procedure section 840 which provides that a bastardy proceeding may be instituted by a superintendent" * * » or an overseer of, the poor, or other officer of the almshouse,” authorizes one "of two overseers of the poor of a town, without consulting the other, to institute a bastardy proceeding.

      Appeal from court of sessions, Monroe country.
    Bastardy proceeding on the relation of Aaron Garrett, an overseer of the poor of the town of Greece, against Jansen D„ Ogden. From an order affirming an order of filiation, defendant appeals.
    John F. Kinney, for appellant.
    John F. Robson, for respondent.
   FOT JETT, J,

The towns of this state may have one or two overseers of the poor, as the electors thereof shall determine. Gen. Laws, c. 20 (the Town Law) §§ 12, 18; 1 Rev. St. (9th Ed.) 727, 729. In 1894. the town of Greece, in the county of Monroe, had two overseers of the poor, and May 15, 1894, one of them applied, pursuant to section 840 of the Code of Criminal Procedure, to a justice of the peace of the town, to inquire who was the father of a child likely to be ■born a bastard, and chargeable to said town. The two overseers did not meet, and the application was the sole act of one of them. A warrant Avas issued, pursuant to section 841 of the Code of Criminal Procedure, on which the defendant Avas arrested, and thereupon another magistrate was associated, pursuant to section 84 of said Code, and they, after a trial, adjudged that the defendant was the father of the bastard, born May 24, 1894. The defendant -appealed to the court of sessions, pursuant -to section 861 of said Code, by Avhich court the case Avas retried, and the order of filiation affirmed, and from this judgmen the defendant appealed to this court, alleging two grounds of error: (1) That the magistrates and the court of sessions Avere Avithout jurisdiction to try the defendant., because the application was made by but one of the overseers of the poor of the toAvn, Avithout consulting with the other overseer; (2) that the judgment is not supported by the eAudence.

In support of the first proposition we are referred to People v.Davis, 15 Hun, 209, and 'Burke v. Burpo, 75 Hun, 856, 59 St. Rep. 144. The first case arose under section 5, tit. 6, c. 20 of the first part of the Revised Statutes, which provided:

“Sec. 5. If any Avoman shall be deÜA-ered of a bastard child, Avhich shall be chargeable or likely to become chargeable to any county, city or town; or shall be pregnant of a child likely to be born a. bastard, and to become chargeable to any county, city or toAAm, the superintendents of the poor of the county or any of them, or the overseers of the poor of the toAAm or city, or any of them, where such avornan shall be, shall apply to some justice of the peace of ‘the same county to make inquiry into the facts and circumstances of the case.33

In People v. Davis the judgment of the court of sessions reversing the order of filiation made by the magistrates was affirmed on the ground that the clerk of the board of charities of the city of Utica ivas without authority to institute the prosecution, and in the course of the opinion delivered it ivas incidentally said at page 211 that “the overseers of the poor of the town or city where the woman jiregnant of such child shall be shall apply to some justice of the peace to make inquiry.” The question whether one of two overseers of the poor' could apply was not before the court, and the writer of the opinion omitted to insert after the word “city” the words “or any of them,” which are found in the section before quoted; Section 840 of the Code of Criminal Procedure is a substi tute for this section of the Revised Statutes, which was repealed by chapter 593 of the Laws of 1886.

“Sec. 840. When bastard, chargeable to the public, is born, or is likely to be born, application to be made to a justice of the peace or police justice. If a woman be delivered of a bastard, or be pregnant of a child likely to be born such, and which is chargeable to a county, city or town, a superintendent of the poor of the county, or an overseer of the poor or other officer of the almshouse of the town or city where the woman is, must apply to a justice of the peace or police justice in the county to inquire into the fácts of the case.”

Burke v. Burpo arose under this section, and in the opinion delivered by one of the justices, but not concurred in by the others, it is said that such a prosecution must be insituted by all the overseers of the poor, and People v. Davis, supra, is referred to as an authority for the proposition, which is not in point, as has been stated. The section of the Criminal Code above quoted was not referred to in Burke v. Burpo, and the provision therein that such proceedings may be instituted by “an overseer of the poor” was not in the mind of the learned justice who wrote the opinion. It seems to me that under the Revised Statutes one of two overseers of the poor had authority, and that under the Code of Criminal Procedure one or two overseers of the poor has authority, to institute such proceedings, and that such is the clear intent of the lawmaking power as expressed in the Revised Statutes and in the Code of Criminal Procedure. The word “an,'” as used in the section, points out one of a class of officers, and does not embrace all of the class. The original meaning of the word was “one,” and it is seldom used to denote plurality. The term “an overseer” cannot be construed to embrace all of the overseers of the poor of the town.

The rule that when two or more officers constitute a board or a body, upon -which power is conferred to do some act, all of the members must act or have an opportunity for acting, has no application to this case, because the power to institute such proceedings is not conferred upon the board of overseer of the poor of the town, for there is no such board, nor upon all of the overseers of the poor, but upon “an overseer,” one of the overseers of the poor of the town.

The term “an overseer” is the equivalent of either or of any of the overseers of the poor of the town. It follows that one overseer of the poor of the town may, without consulting with the other overseer, if there be two, institute such proceedings, and that this proceeding was legally begun.

The issue of fact in this case was sharply contested, and it turned, as in all such cases, upon which should be believed the mother or the alleged father. Two courts who heard the parties testify have believed the mother, and I do not see, under the rules governing the review of issues of fact in this <court, how the decision can be disturbed.

The judgment should be affirmed, with costs. All concur.


author: HAR'D.IN, P.

text:
    Henrietta Palmer v. William H. Palmer.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    1. Malicious prosecution—Pleading—Want of probable cause.
    The complaint must allege want of probable cause.
    3. Same—Question of law.
    Want of probable cause is a question of law where the facts are not disputed.
    3. Same—Mode of raising objection.
    Under Code Civil Procedure, section 489, providing that the objection that a complaint does not state facts sufficient to Contsitute a cause of action is not waived by an omission to demur, the objection that a complaint for malicious prosecution does not allege want of probable cause may be raised by motion to dismiss.
    Appeal from trial term, Oneida country.
    Action by Henrietta Palmer against William H. Palmer, for malicious prosecution. From a judgment entered on a verdict in favor of plaintiff for $200, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
    The court charged “that the jury has not the legal right to take into consideration anything on account of the allegation in the complaint of an enticing away of the plaintiff's husband.“ When the case was opened to the jury, the defend-nut took the position “that there is no allegation that this malicious prosecution was without probable cause,” and asked the court “to dismiss the complaint, in that it does not allege a cause of action upon its face, so far as malicious prosecution is concerned.” The motion was denied, and the defendant took an exception. At the close of the plaintiff’s evidence, the defendant again moved that the complaint be dismissed, upon the grounds: **
    (1) That the complaint does not state a cause of action. (2) That the complaint, so far as it refers to malicious prosecution, does not state a cause of action. (3) That the-evidence is not sufficent upon which to base a judgment against this defendant. (4) That no want of probable cause is alleged in the complaint, and no want of probable cause is proven in the evidence; that there is nothing alleged in the complaint, and no evidence given from which a-finding can be had; that this defendant, in acting as he did, and in setting in motion and in following up the prosecution here shown, acted without probable cause. The motion was denied, and an exception was taken. The defendant asked the court to charge “that there is no evidence of a want of probable cause in this case as proven; that there is no evidence tending to show a want of probable cause. “The court replied;” I will leave that as a question of fact for the jury, upon all the evidence.” An exception was taken by the defendant.
    Sayles, Searle & Sayles, for appellant.
    Timothy Curtin, for respondent.
   HAR'D.IN, P.

—Plaintiff, in her complaint, alleged: That on the 11th of July, 1S9Ó, the defendant “wrongfully and maliciously went before R. W. Stedman, a justice of thepeaee of the town of Lee, and made an information and complaint before said justice, charging said plaintiff with an attempt to shoot the said defendant, and wrongfully and maliciously procured the said justice to issue a warrant for the arrest of this plaintiff, and caused the same to be put into the hands of an officer, who arrested and took into his custody this plaintiff, and took her from her residence and home, at the town of Aimsville, io the town of Lee; and, after she Avas brought before said justice of the peace, the said defendant AAmongfully and maliciously went before said justice, and procured counsel to prosecute this plaintiff. That plaintiff was compelled to undergo public trial upon said charge and before said justice of the peace; and after the said prosecution had rested, and after the said justice had heard the evidence-offered upon the trial and hearing before him, this plaintiff was discharged, and found not guilty, of the crime ana charge alleged in information made by said defendant. * * e Plaintiff further alleges and says that the said charge was wrongfully and maliciously made by the defendant, and the said arrest and imprisonment was maliciously and wrongfully made; and the arrest, committal and detention were malicious on the part of the defendant.”

The complaint nowhere contains an allegation that the prosecution was without probable cause. Ñor does it, in terms, allege that the prosecution had been terminated. It is claimed, howeper, that the last fact is inferable from the fact that it is alleged that the justice who heard the evidence offered upon the trial and hearing before him discharged the plaintiff.

In McCormick v. Sisson, 7 Cow. 715, it was said, “Want of probable cause is the gist of the action.”

In Secor v. Weed, 7 Rob. (N. Y. ) 65, it was held, viz.:

“An averment of want of probable cause in a complaint for malicious prosecution is indispensable. A mere allegation that the charge was false does not include in it an averment that there was no probable cause for malting the charge, nor is an averment of malice an averment of want of probable cause, since, although malice be proved, that fact does not prove a want of probable cause.”

In the course of the opinion delivered in that case, it -was said:

“And it is equally well settled that every fact which the plaintiff must prove to enable him to maintain his action, and which the defendant has a right to controvert in his answer, must be distinctly averred or stated in the complaint.”

In Anderson v. How, 116 N. Y. 336, 26 St. Rep. 787, it was held:

“Probable cause does not depend upon whether the offense has been committed in fact, or whether the accused is guilty or innocent, but the prosecutor’s belief based upon reasonable ground-:.”

A similar doctrine was laid down in Miller v. Milligan, 48 Barb. 30, and in the latter case it was said:

“Malice and a want of probable cause for the former suit must both be alleged and proved. If there was probable cause, the action cannot be maintained, even though the prosecution complained of was malicious'.”

The doctrine of that case seems to have been approved in Heyne v. Blair, 62 N. Y. 19.

In Smith v. Smith, 26 Hun, 573, the complaint did not allege that the filing of the lis pendens complained of Avas Avithout probable cause, and it Avas held that a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, should be sustained.

In 14 Am. & Eng. Enc. Law, p. 42, it is said:

“The common-law action for a malicious prosecution is case, and not trespass. Malice, want of probable cause, and termination of former action in favor of the plaintiff being essential to the maintenance of this action, the complaint must aver that the proceeding complained of was malicious, that there was no probable, cause therefor, and that such proceeding had terminated in favor of the party bringing this action, and must allege how it was ended.”

In support of the doctrine of the text, Scotten v. Longfellow, 40 Ind. 23, is cited, and it is said:

“An allegation of the falsity of the charge is not equivalent to an allegation of ‘want of probable cause.’ Want of probable cause is the material allegation.”

In Van De Wiele v. Callanan, 7 Daly, .386, it was said, “The proper allegation is the general one of Avant of probable cause.”

It is provided in section 499 of the Code of Civil Procedure that “the objection that the complaint does not state facts sufficient to constitute a cause of action” is not Avaived by an omission to demur.

In Pope v. Manufacturing Co., 107 N. Y. 62; 11 St. Rep. 209, it Avas held that a defect in the complaint was not AvaiA'ed by the failure to take the objection by demurrer or ansAver. In the course of the opinion, it Avas said:

“The plaintiffs did not apply for an amendment, but took the risk of the sufficiency of the complaint, and cannot on this appeal be relieved from their position.”

In Clark v. Post, 113 N. Y. 17; 21 St. Rep, 835, it Avas said:

“A party must recover not only by his proof, but upon his allegations. The facts stated must constitute a cause of action and they must be in evidence. It is not enough that they stand upon proof, unless that proof is preceded by statement.”

Upon the authorities cited, we are of the opinion that the objections and exceptions to the complaint Avere Avell taken.

2. Upon the trial, the information and proceedings had before the justice Avere produced, and they Avere sufficient to comply Avith section 84 et seq. of the Code of Criminal Procedure, and the justice was Avar ran ted, upon the presentment of the complaint, information, and affidaArits, to issue the Avarrant upon Avhich the plaintiff was brought before him in proceedings for “security to keep the peace.”

Section 38 of the Code of Criminal Procedure contains the following provision:

“If it appear that there is no just reason to fear the commisión of the crime alleged to have been threatened, the person complained of must be discharged.”

In Vanderbilt v. Mathis, 5 Duer, 304, it was held that:

“The determination in favor of the plaintiff of the prosecution alleged to be malicious is not, per se, prima facie evidence of the want of probable cause.”

In Burlingame v. Burlingame. 8 Cow. 141, it appeared that prosecution for a crime was instituted, and the accused went into his defense, the scope of which was to show that the prosecutor was mistaken in his testimony; and the justice discharged the accused, and it was held that an action for malicious prosecution would not lie, the testimony of the prosecutor making out probable cause,' And the judge, in delivering the opinion, says:

“Though the plaintiff was acquitted, it is possible the defendant may have been correct. At any rate, his statement may be considered as probable cause.”

After some evidence was given tending to show a want of probable cause, the trial judge, instead of-ruling absolutely, as a matter of law, whether there was or was not probable •cause, concluded to submit the evidence to the jury, and allow it to find a want of probable cause.

In Fagan v. Iinox, 66 N. Y. 527, it was said:

“The question of probable cause is a question of law, and not of fact. It is sometimes said to be a mixed question of law and fact. This only means that when the facts adduced to prove a want of probable cause are controverted, or conflicting evidence is to be weighed, or the credibility of witnesses is to be passed upon, it must be submitted to the jury to find the facts, under proper instructions as to the law. * * * The question of what constitutes probable cause does not depend upon whether the offense has been committed in fact, or whether the accused is guilty or innocent, but upon the prosecutor’s belief, based upon reasonable grounds. The prosecutor may act upon appearances; and if the apparent facts are such that a discreet and’ prudent person would be to led the belief that the accused had committed a crime, he will not be liable in this action, although it may turn out that the accused was innocent.’ If there is an honest belief of guilt, and there exist reasonable grounds for such belief, the party will be justified.”

That language was referred to with approbation in Hazzard v. Flury, 120 N. Y. 227; 30 St. Rep. 906.

In Masten v. Deyo, 2 Wend. 425, Marcy, J., said that Avhere there Avas a conflict in the testimony to be weighed, or the credibility of witnesses Avas to be passed upon in respect to whether there was a Avant of probable cause, “the judge •erred in not giving the defendant the benefit of his exposition to the jury of the law relative to what constituted probable cause in an action for a malicious prosecution.”

In the case in hand, the evidence is not very satisfactory that the defendant acted without probable cause when he made the complaint to the magistrate. ' In the affidavit lodged with the justice he stated that the party complained of (the plaintiff here) had threatened to shoot him, and would riddle him with bullets, and had the tools to do it with. He also stated that he had just cause to fear that she would commit the crime threatened; and he further stated that he did not make the complaint “from any private malice or ill will towards the said Henrietta Palmer, but simply because he is afraid, and hath good reason to fear, that the said Henrietta Palmer will commit the said crime threatened.” The jury, in order to find that there was a Avant of ¡probable cause, Avas called upon to find that the statement in the affidavit, from Avhich the quotation has just been made, corroborated as it was by the affidavit of LoAver, was untruthful. The evidence was not very satisfactory to establish a want of probable cause. Under the circumstances of this case, Ave are of the opinion that we ought not to alloAV an amendment to conform the pleadings to the proofs given, or so to contain the essential allegation of want of probable cause in an action for malicious prosecution.

The foregoing víbavs lead us to the conclusion that the order refusing a new trial and the judgment entered upon the verdict should be reversed.

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


author: ADAMS, J.

text:
    Frank H. Hamlin et al. v. Frederick Klein et al.

    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    PPINCIPAL AMD SUEETY—DISCHARGE OT SURETY.
    Sureties on a bond secured by mortgage are not discharged by a release of the mortgage - which release is afterwards rei aside on the ground that it was secured by fraudulent representations.
    Appeal from special term, Monroe county.
    Action by Frank II. Hand in and another, as trustees, against Frederick Klein and others, to set aside a release of certain lands from the lien of a mortgage held by plaintiff as assignees. There was a judgment in favor of plaintiffs, and defendants Frederick Klein and Simon S. Yorreuter appeal.

      This action was brought by the plaintiffs, who are the holders, by assignment, of a certain mortgage described in the complaint, to vacate a release of lands from the lien of their mortgage, and to' restore such lien as to the lands described upon the ground that the plaintiffs were induced to execute such release by reason of the fraudulent representations of the mortgagor. The mortgage in question was made by the Jennings Park Homestead Association to the defendant Frederick Klein, and was intended originally as security for the payment of the sum of $11,500 and interest. The .mortgage covered a tract of land in the eastern part of the city of Rochester, which had been plotted for city lots, and it contained, among other provisions,-the following: “The party of the first part may pay thereon at any time any sum not less than $200, to be applied on the principal thereof,” and “the party of the second part agrees to release from the lien of the mortgage * * each and every lot of said tract, according to a map thereof, on payment of the assessed valuation of the said lots and all taxes and interest and insurance on said lots as fixed by said association.” The premises covered by the mortgage were subdivided into forty-six city lots and a map thereof was filed in the Monroe county clerk’s office, but the same did not show the valuation of each of the lots, as assessed by the association. The mortgage, together with the bond accompanying the same, ultimately came into the hands of these plaintiffs by mesne assignments, the defendant Vorreuter being one of the parties through whom the same were assigned and transferred. At the time the defendant Klein assigned such bond and mortgage, he accompanied the same with a personal guaranty of their payment, which guaranty passed by assignment with the bond and mortgage to these plaintiffs, and both the defendants Klein and Vorreuter executed a mortgage upon certain other property belonging •to them individually, as collateral security for the amount unpaid upon the mortgage in suit, which mortgages, together with the individual bonds of the mortgagors, also came into the hands of the plaintiffs, and are now held by them. At the time the plaintiffs became the owners of the original bond and mortgage there was unpaid thereon $7,825 of principal and some accrued interest, ¡and no part of the mortgage premises had then been released. On the 11th day of February following, $1,050 of principal was paid upon the mortgage, and six of the lots covered thereby were released from the lien thereof. On the 18th of April, 1893, the treasurer of the Jennings Park Homestead Association paid to the ‘'plaintiffs the further sum of $3,075 of principal and $275 interest, and at the time of making such payments asked for and received from the plaintiffs a release of 30 additional lots. At the time of making such payments it is alleged that the treasurer stated to the plaintiffs that the amount paid entitled the mortgagors to a release of that number of lots, aiid that all taxes and interest due on the same, as well as-the assessed valuation thereof, had been paid to the associaation, and by the association to the plaintiffs; that, relying upon the truth of such statement, and believing that the sum required to be paid as a condition of such release had been fully paid, the plaintiffs executed and delivered their release to the mortgagor; but that, as a matter of fact, five of ■ the lots embraced in the release were not entitled, under the terms of the mortgage, to be discharged from the lien thereof, by reason of the fact that their assessed valuation,, amounting to $1,295, had not been paid to the association by the owners, nor by the association to the plaintiffs. At the time of the execution and delivery of the release the plaintiffs had no knowledge of the assessed valuation of the particular lots, nor of the amount which had been actually paid upon the different lots to the association as the same did not appear in the mortgage nor upon the map held by them. Upon learning, as they subsequently did, that the five lots in question had been improperly released from the lien of their mortgage, the plaintiffs brought this action to vacate such release, so far as it related to these particular lots, and to have the lien of their mortgage restored to the same.
    C. J. Browning, for appellants.
    William H. Smith, for respondents.
   ADAMS, J.

—The learned trial court found as facts in this-case that the release of the plaintiffs, as to the five lois in question, was induced by the false and fraudulent representations of the mortgagor’s treasurer, and that none of said lots was, by the terms of said mortgage, entitled to be released from the lien thereof; and his conclusion of law was that the plaintiffs should be restored to thq same rights in all respects as against the defendants Klein and Vorreuter, and as to all collateral security held by them, as they would lmve possessed had the release in question never been executed, so far as the same purported to discharge from the lien of the mortgage the five lots whch were fraudulently embraced in such release. The facts thus found appear to be fully sustained by the evidence in the case, and ai'e apparently acquiesced in by the principal debtor, as no appeal has been brought from the judgment herein, save by the defendants Klein and Vorreuter, who stand in the relalion of sureties to the mortgage debt. And the only question, therefore, which is necessary to be considered upon this appeal, is whether or not the release from the lien of the plaintiffs’ mortgage of these five lots, which unquestionably did materially impair the security of such mortgage, exonerated the sureties from any liability for the amount remaining unpaid upon the principal debt. It is, of course, well settled that where a creditor, by a valid agreement,, entered into between himself and the principal debtor, without the consent of his surety, releases the former from the payment of his obligation or any part thereof, or releases-any property of the principal debtor which the creditor holds as security for the payment of the debt, the surety is thereby discharged It is likewise an elementary principle of law, that fraud vitiates all contracts; and it follows that where a party is induced to enter into a agreement by rea son of fraudulent representations made to him the same is absolutely void, and the surety is not discharged from his obligation to answer for his principal by reason of the agreement thus entered into. Lowman v. Yates, 37 N. Y„ 601. The rule just stated may be applied with peculiar appropriateness to the case in hand, for the acts of the creditor which will ordinarily exonerate a surety must be of such a. character as to work some legal injury to him, or they must be inconsistent with his legal rights. Blydenburgh v. Bingham, 38 N. Y. 371; Clark v. Sickler, 64 N. Y. 231. Of course, to the extent that the release of the five lots impaired the security of the principal debtor which was held by these plaintiffs, the sureties were in juriously affected, but when the relief sought to be obtained through the medium of this action is accomplished, and the lien of the mortgage restored to these lots, the sureties will be placed precisely where they -would have been had those lots not been included in the release. In other words, nothing has been done by these plaintiffs, except that which they are now seeking to avoid upon the ground of fraud, which injuriously affects the legal rights of the appellants. It is quite possible that the land covered by the mortgage has depreciated in value, as the defendants' attempted to show upon the trial; but it is difficult to see how that fact can be made available as a defense to this action, inasmuch as the plaintiff’s mortgage is not yet due, and there has been no default in the interest thereon which would have permitted them to foreclose the same. So "that, with the lien restored to these five lots, the sureties will simply remain liable to respond for any deficit which may possibly arise if the plaintiffs should ultimately be forced to foreclose their mortgage, and that is precisely what they undertook to do when they, assumecl the obligation of sureties to the principal debtor. We are unable to discover any error committed upon the trial of this case, or in the conclusion reached by the learned trial court, and we therefore think that the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    George H. Wells v. Schuyler C. Wells.
    (Supreme Court, Appellate Division, Fourth Department,
    July 30, 1896.)
    1. Evidence—Documents—Preliminary memorandum of agreement.
    A preliminary memorandum signed by the parties is merged in a subsequent formal contract executed by them, and therefore is not admissible in evidence to show what the agreement was, but it is admissible for the purpose of showing the consideration.

      2. Same—Parol to explain writing.
    Where a written contract recites a certain sum of money as the consideration parol evidence is admissible to show the items of which such sum is made up.
    Appeal from special term, Erie county.
    Action by George H. Wells against Schuyler 0. Wells and Parti ok McCarrick to dissolve a co-partnership existing between the parties. From a judgment entered on the report of a referee in favor of plaintiff, and from an order confirming the report, defendant Wells appeals.
    The patries to this action were the owners, as co-partners, of a steamboat named the Shiloh, which they were engaged in running upon Silver Lake, in this state. The co-partnership was started in the year 1883, at which time a boat was built and placed upon the lake, where it continued to run for one season and part of another, when it was destroyed by fire. The firm then built the boat in question to take the place of the one destroyed, using in the latter boat such portions of the machinery of the first boat as were suitable for the purpose. Originally the defendant McCarrick was the owner of a one-half interest in the boat, and the plaintiff and the defendant Schuyler C. Wells were the owners of the other half; the plaintiff owning one-sixth and the defendant Schuyler C. Wells two-sixth interest therein. At the time these boats were constructed, the Wells brothers were co-partners in business, at -Leroy, Genesee county, under the firm name of S. C. Wells & Co., and as such were engaged in manufacturing and selling certain proprietary medicines known as “Shiloh Tlemedies,’-'1 and the boats were designed primarily as ad vertising mediums for these remedies, although they were also employed for carrying passengers and freight. In the fall of 1892, negotiations were commenced between the Wells brothers to dissolve the last mentioned partnership, which were consummated upon the 14th day of October in that year by the sale of the plaintiff’s interest therein to the defendant Schuyler C. Wells, and a written bill of sale of such interest was executed by the plaintiff upon the last-mentioned date, which recited a consideration of $20,000. Upon the trial it was established by undisputed evidence that this consideration was made up of two notes executed by the defendant Wells of $5,000 each and one $4,000 or $4,500, a conveyance by the same defendant to the plaintiff of an undivided one-half interest in a farm in Vermont, and the surrender by him to the plaintiff of the latter’s note of $1,757 94, which the defendant then held, was also claimed by the plaintiff, and evidence was given tending to prove, that the defendant Wells likewise transferred to him his two-sixths interest in the steamboat Shiloh, and that such transfer was accepted by the plaintiff as a part of the consideration named for the sale by him of his interest in the proprietary medicine business. This action was brought to dissolve the co-partnership relating to the steamboat, and for an accounting to ascertain the rights and interests therein of the several parties. Previous to the trial a receiver was appointed, Avho sold the boat, which constituted the entire assets of the firm, for the sum $625. It was conceded that one-half of this sum, less the expense of the receivership, belonged to the defendant McCarrick: the only issue in the case being as to the ownership of the other half, the plaintiff claiming the whole of it, and the defendant Schuyler C. Wells insisting that he still OAvned two sixths thereof. The case was referred and this issue was determined by the referee in favor of the plaintiff, and the defendant Wells appeals from the judgment entered upon such report, as well as from an order confirming the same.
    F. S. Randall, for appellant.
    Walter H. Smith, for respondent.
   ADAMS, J.

All the material allegations of the complaint were virtually admitted by the ansAver of the defendant Wells, saAre the one relating to the interest of the two brothers in the boat Shiloh. Upon the presumption that no error Avas committed by the learned referee in the admission of evidence at the trial, he was clearly justified in his finding of fact that the defendant Wells had parted with his interest in the boat in question, and that the plaintiff Avas the OAvner of an undivided one half interest therein. Indeed, the evidencepvepunderates so clearly in favor of the plaintiff’s contention that it is difficult to see how any other conclusion could have been reached. The only questions, therefore which seem to require serious consideration are those which are presented by the exceptions in the case. The exceptions are six in number but they really present but two distinct propositions. It appears that when the negotations for the transfer by the plaintiff to his brother of his interest in the business of S. C. Wells & Co., were initiated, a writ ten memorandum, stating in a general way the consideration for such transfer,, was drawn up and signed by the parties, which reads as follows:

“Leroy N. Y., Oct. 1st, 1892.
“I hereby agree to, pay G-. H. Wells for his one third-interest in the business of S. C. Wells & Co., note for fourteen thousand dollars, payable one year from Aug. 1st, 1892, and my half interest in homestead farm, and surrender a note I hold of his of $1 757.94. “S C. Wells.
Gf. H. Wells.”

Subsequently, and upon the 14th day of October, 1892, az somewhat more formal bill of sale was drawn up, which was executed by the plaintiff and which stated with more particularity the details of the transfer; and in this lat er instrument the consideration specified was the sum of f20,000. Upon the cross-examination of the plaintiff the memorandum first referred to was offered in evidence by the defendant’s counsel, to .which offer the plaintiff’s counsel objected, upon the ground that it was incompetent, irrelvant, and inuna terial. 'The objection was sustained by the referee, to which ruling the defendant’s counsel duly excepted. Subseauently,. and when the defendant had the case, he again offered this-paper in evidence, and it was received by the referee who stated • that he received it, not- as proof of what the true consideration for the transfer of the plaintiff’s interest in the business was, but for the purpose of showing what the-consideration was made up of; and to this ruling and statement of the referee no exception was taken by the defendant It will be observed, in reference to this memorandum, that it does not purport to represent anything more than the amount which the defendant Wells agreed to • pay his brother for his interest in the business. It was a mere preliminary and informal memoradum, which was subsequently merged in the more formal agreement of October 14th. It was, therefore, only competent as it bore upon the question of consideration, and for that purpose the defendant had whatever benefit he could derive from it as an item of evidence in the case, and consequently his exception to the earlier ruling of the referee seems to be deprived of any force.

The plaintiff while upon the stand, was permitted to state over the objection of the defendant’s counsel, a conversation which he claims took place between him and his brother at the time the bill of sale was executed, and in the course of which he testified that his brother said that he transferred his interest in the boat Shiloh as part consideration for the transfer by the plaintiff to him of his interest in the Shiloh remedy business. Defendant’s counsel insisted that this evidence tended to vary the terms of a written instrument and that, therefore it was incompetent for any purpose, and his exception to its-admission raised the only question which remains for our consideration. The bill of sale does not attempt to specify in what manner the consideration of $20 000 therein mentioned was made up further than to refer to it as “lawful money of the United States”: but the plaintiff was permitted to testify that this sum was made up two notes of $5 000 each; one of $4 000 or $4 500; the transfer of the undivided interest in the Vermont farm, the consideration for which, as mentioned in the deed, was the sum of $3,000; the surrender of plaintiff’s note of $1,757.94, and the interest of the defendant Wells in the boat Shiloh. We think no error was committed by the learned referee in permitting the plaintiff to testify as to the actual consideration entering into this agreement of October 14th, inasmuch as it is a well-settled rule of construction that the true consideration entering into a contract is always open to explanation and variation by parol evidence. McCrea v. Purmort, 16 Wend. 460; Adams v. Hull, 2 Denio, 306; Wheeler v. Billings, 38 N. Y. 263; Arnot v. Railway Co., 67 N. Y. 315; Miller v. McKenzie, 95 N. Y. 575. But this rule is, of course, subject to the limitation that the variation or contradiction shall not be permitted to invalidate the instrument itself (Fuller v. Artman, 69 Hun, 546; 53 St. Rep. 339); and the reason for the rule is quite apparent, for, as it is well known, the consideration expressed in conveyances and other similar instruments is frequently an arbitrary one which does not actually represent, the intention in that respect of the parties executing them: and it so happens that this very case furnished an illustration of this fact, for, upon the examination of the defendant Wells, he claimed that the consideration of $20,000 mentioned in the bill of sale Avas merely a nominal one, and then added, “It didn’t make any difference whether we called it tAventy thousand or some other sum.” It Avill be seen, therefore, that this like very many cases of like character, is one Avhere the true consider ■ ation was not intended to be expressed by the parties to the bill of sale at the time it was executed, and consequently within the principle referred to. It is one in which evidence dehors the contract was permissible without doing violence to the rule which counsel evidently had in mind, that parol evidence is not competent to vary a written instrument. In other words, this bill of sale, in so far as it, purported to state the consideration therefor, was in reality nothing more than a receipt, and that such an instrument is always open to explanation and contradiction is a proposition of law whi ch has been recognized and adopted b:y the courts of this state since the early part of the present century. Monellv. Lawrence, 12 Johns 521. Failing, then, to discover "any reversible error in the rulings of the referee, we think the judgment appealed from should be affirmed.

Judgment and order appealed from affirmed, with costs.

All concur.