author: Barnard,.P. J.

text:
    Mary S. Behrman, Pl’ff, v. Metha Yon Heyn, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    "Vendor and purchaser—Title—Will.
    _ One B., by her will, gav„ the income of her estate to her husband for life, the estate to be divided on his death among the children, the issue of any who died to take the share of his or their parent. The will gave the executors a power of sale with consent of the husband, and provided that the net proceeds be invested and the income paid to the husband for life. The husband, who was the sole acting executor, sold a parcel to plaintiff, and also joined in a conveyance thereof with his children. By his direction plaintiff paid off a mortgage and incumbrances, paid a portion of the balance of the purchase price to him and the rest to the children In an action for specific performance of a contract of sale, Held, that plaintiff obtained a good title to the premises, and was not bound to follow the money or infer that it was not invested properly when she paid it as directed by the executor.
    Submission of controversy without action.
    Plaintiff contracted to sell certain premises to defendant, and the question submitted was whether she has a good title thereto.

      Herbert D. Lent, for pl’ff; Smith & Martin ( Wm. P. Fisher and Newell Martin, of counsel), for def’t.
   Barnard,.P. J.

—Esther Mary Butler died in 1875, leaving-real and personal property. She left a husband and two children.

By her will she made the following disposition of her property:

“ I also hereby further give and bequeath unto my said husband the use, income and profit to be derived from all my real estate and the balance of my personal property for and during his lifetime, and on his decease the same to be divided between my children then living, if more than one, and if only one, such child to have and take the whole of my said estate and property; provided, however, that if any child dies leaving issue, then such issue to take the share his or their parents would have been entitled to have and take if then living."

The will contained a provision that the executors should have full power “ to sell any and all my real estate at any time, and on such terms as they may deem best for the interest of my estate (provided my husband, if then living, shall consent thereto), and thereupon to -execute and deliver all necessary deeds and other instruments in writing requisite to convey a good and perfect title thereto.”

The will provided that the executors invest the net proceeds of the sale, and pay to the husband during his lifetime.

The executors sold a piece of land under the power to the plaintiff for its full value, and received the money.

There was a mortgage on the property and unpaid taxes and assessments thereon, and these were paid. There was left $357.46, which was paid; $75 to the husband of deceased, and $282.46-to one of the children with the assent of the executors. The question is, whether Mrs. Behrman’s title thus acquired is good. We think it is. The executor’s deed passed the title. The deed of the sons which accompanied it conveyed nothing, as they had only a life estate, but it did not hurt the deed of the executor. The husband expressed his consent to the sale by the deed when the husband was' executor as well as husband, but he went further ; he joined in the deed with the sons, which conveyed his life estate.-

The purchaser was not bound to follow the money, or to infer that it was not invested properly when she paid over the same as-directed by the trustee. Belmont v. O'Brien, 12 N. Y., 394.

The judgment should be ordered for the plaintiff upon the submitted case, without costs.

Dykman and Pratt, JJ., concur.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    Benjamin Toub, Resp’t, v. Adam Schmidt, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Innkeepers—Liability fob goods stolen.
    A person cannot invest himself with the character of a guest by simply leaving goods at an inn, and the innkeeper is not liable for the loss of such goods.
    Appeal from judgment in favor of plaintiff for $100, entered on verdict.

      Wilton Bennet, for app’lt; C. E. Cuddeback, for resp’t.
   Dykman, J.

—This is an appeal from a judgment and order denying a motion for a new trial on the minutes of the court The cause was tried first in a court of a justice of the peace and then upon appeal to the county court a new trial was had there resulting, as the first had, in a verdict for the plaintiff for $100.

The facts are these: The plaintiff is a pack peddler and the defendant is an inn-keeper at Port Jervis in Orange county. On the 6th day of February, 1890, the plaintiff went to the inn of the. defendant with his pack, and the defendant asked him where he was going, and the plaintiff said he was going to New York; the defendant asked him if he was going to take his pack with him, and the plaintiff said, No, I will leave it here,” and then the defendant took the key to the storage room and opened the door, and the plaintiff placed his pack and a small valise in the room, and the defendant locked the door. That was about six o’clock in the evening, and the plaintiff left the house about eight o’clock and went to New York. He neither engaged a room, nor eat nor drank at the house. According to his expressed intention he returned to the inn on the Monday evening following, and his pack and valise could not be found, and this action was brought to recover the value of the property so left with the defendant, based upon his liability as the keeper of an inn.

There is no substantial dispute in relation to the facts, and at the close of the plaintiff’s testimony upon the trial the counsel for the defendant moved to dismiss the complaint on the ground that the plaintiff had failed to establish the relation of landlord and guest between himself and the defendant

The motion was denied and the counsel for the defendant excepted, and then after the examination of the defendant and some other witnesses without the development of any material fact, the case was sent to the jury under a charge which permitted the jury to find whether the' relation of inn-keeper and guest existed between the plaintiff and defendant, and made the case to turn upon that question.

The jury rendered a verdict for the plaintiff, and thp defendant has appealed as we have stated.

The testimony being undisputed, the verdict of the jury cannot be taken as conclusive unless the proof was sufficient for its justification. If the evidence failed to disclose facts sufficient to constitute the plaintiff a guest of the defendant, then the verdict was destitute of support, because the technical relation of inn-keeper and guest must be established in order to enforce the liability of the latter. This proposition is now so rudimental that the citation of authorities for its support is unnecessary.

So the question for determination is whether the plaintiff was a' guest of the defendant when the property was lost He was not. at the defendant’s house for refreshment or rest or with an intention to remain. He asked for nothing for himself and received nothing, and although it is. not easy to determine either from principle or authority precisely what conduct will be sufficient to make a guest, yet it seems plain that one who is not to be entertained, and who has not adopted the inn as a temporary home, is not a guest within the meaning of the law so as to entitle him to the severe remedies enforced against inn-keepers. Their common law liability was based upon public policy for the protection of travelers.

It was found that loss and damage frequently resulted to wayfarers from the negligence of inn-keepers and their servants, and a rigorous rule of liability was adopted for the redress of such wrongs.

As a compensation for their extraordinary liability, and because they are under obligations to receive and entertain travelers, the law gives to the inn-keeper a lien upon the property of his guest for the satisfaction of his charges. But he has no lien unless he is bound to receive the goods, and in this case as thé defendant was not bound to receive the property left with him he acquired no lien, and it has been said that the lien and liability are correlative and must stand or fall together. Grinnell v. Cook, 3 Hill, 488.

So it was said in the same case, if a traveller leave a horse at an inn and leave for another town to be absent a few days, the liability continues because the host will receive compensation for care and keep, but it is otherwise respecting inanimate property from which the host derives no benefit. Grinnell v. Cook, 3 Hill, 489.

As a person does not become a guest by a simple visit to an inn, so he cannot invest himself with that character by simply leaving goods at the inn, and while one may continue to be constructively a guest while he is temporarily absent from an inn, yet he cannot continue a character he never assumed.

The testimony in this case discloses no act of the plaintiff indicative of an intention to become a guest of the inn, and the defendant was not bound to receive his goods, and had no lien upon the same for their keeping, and these three reasons are sufficient to defeat a recovery in the action.

The judgment and order denying a motion for a- new trial should be reversed and a new trial should be granted in the county court, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur.


text:
    William I. Gaunt, App’lt, v. Ira P. Taylor, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Fraud—Infancy.
    Defendant purchased goods of plaintiff on credit, representing that he kept a store and was doing a nice little business in his own name. It appeared that he did not own the store, but was carrying on business for his sister, whose name he signed to the contract of sale, and that he was under twenty-one. Held, that plaintiff was entitled to recover damages for the wrongful obtaining of the goods from him without returning the money received on the sale.
    Appeal from judgment of the Orange county court, reversing a judgment of a justice’s court in favor of plaintiff.

      W. D. Mills, for app’lt; T. A. Read, for resp’t.
   Dykman, J.

—This is an appeal by the plaintiff from a judgment of the county court of Orange county, reversing a judgment against the defendant in favor of the plaintiff, obtained in a court of a justice of the peace, and if the judgment is to endure it will crown with success the perpetration of a fraud which deceived the plaintiff and induced him to sell the defendant the property in question.

The defendant applied to the plaintiff to purchase a wagon, and in answer to the inquiry of the plaintiff respecting his pecuniary circumstances, he said he was keeping a store in Middletown and doing a nice little business in his own name.

A friend of the defendant, who was with him, said he was all right. The plaintiff was thus induced to sell the wagon to the defendant, who thereupon gave him the following paper, which was signed by the defendant:

Chester, 1ST. Y., April 1, 1890.

I this day bought a wagon of W. I. Gaunt for $175, gave a check for twenty-five dollars, agree to pay fifty dollars in sixty days and ten dollars per month until April 1, 1891, and then will pay all balance due.

A. E. Taylor,

72 M Main St., Middletown, N. Y.

It transpired subsequently that the name signed to that instrument was the name of the sister of the defendant; that he was transacting business for her; that he did not own the store, and that he was under twenty-one years of age. It thus appeared that he was transacting business in the name of his sister, which was evidence of his insolvency, and that he did not sign his own name to the paper promise to pay for the wagon, and that he was incapacitated by. his infancy to make a valid and binding contract with the plaintiff.

The fraud and insolvency of the defendant were sufficiently established, and the plaintiff had the legal right to bring an action against the defendant to recover the damages he sustained by the transaction. Such am action is based upon the fraud practiced upon the plaintiff, and it may be maintained without a return of the money received upon the delivery of the wagon.

The complaint contains facts sufficient to constitute a cause of action for damages for wrongfully obtaining the wagon from the plaintiff by the defendant, and the prayer for relief is not material because the defendant appeared and answered, and the plaintiff was entitled to the judgment to which his complaint and evidence showed him entitled. He could not have a judgment for the return of the wagon, because he had not returned the money he received upon the sale, and thus rescinded the contract, and therefore he could have a judgment for the amount of his damages, and that is what the judgment of the justice awarded him. Although inartificially stated, the judgment was for the plaintiff for $154.50, if the possession of the wagon was not delivered to the plaintiff.

That judgment was just, and there were no substantial reasons for its reversal; and if judgment had been rendered by the court according to the justice of the case, without regard to technical errors, as the law requires, the judgment would have been affirmed

We must, therefore, do now what the county court erroneously failed to do. The judgment of the county court should, therefore, be reversed, and the judgment of the justice’s court be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Hardin, P. J.

text:
    The People, Resp’ts, v. James McHale, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Larceny—Indictment.
    An indictment charging that the defendant entered into an agreement with one H., the prosecutrix, to take and hold certain moneys, of which she was the owner, in trust for her, to be returned on demand, and having said moneys in his possession under the agreement, “did feloniously appropriate said moneys to the use of himself * * * with the intent then and there feloniously to deprive and defraud said H. of the same and of the use and benefit thereof," is sufficient under § 528 of the Penal Code.
    2. Same—Evidence.
    Evidence of prosecutrix that defendant told her to place the money in his charge and it would be safe; that she did so; that he refused to pay the same to her on demand, saying that it was spent, with evidence that defendant was insolvent and had wrongfully appropriated the money, is sufficient to sustain a verdict of guilty.
    3. Same—Defense.
    The fact that the prosecutrix was anxious lest the poor authorities should learn that she owned this money was no defense.
    4. Criminal law—Arraignment.
    At the close of the trial defendant’s counsel interposed the objection that defendant had not been arraigned or plead. Deld, that the court properly allowed him to be arraigned at that time and directed a plea of not guilty to be entered.
    Appeal from a judgment of the court of sessions of Onondaga county, rendered upon a verdict of a jury in that court finding the defendant guilty of the crime of grand larceny in the first degree, for which he was sentenced to the state’s prison at Auburn for the term of six and a half years.
    The indictment charged as follows: “ The said James McHale, on the 81st day of October, 1889, at the city of Syracuse, in this county, entered into an agreement with one Elizabeth Heaney, whereby the said James McHale did promise and agree to. and with the said Elizabeth Heaney to have and hold and take in his possession, custody and control the certain moneys hereinafter described of and belonging to said Elizabeth Heaney, she being then and there the true owner thereof, in trust for and on account of said Elizabeth Heaney, and to deliver back and to return to said Elizabeth Heaney said moneys whenever she might demand the same of him, the said James McHale; and the said James McHale was then and there authorized by the said Elizabeth Heaney, by and in pursuance of said agreement with said Elizabeth Heaney, to hold and take possession, custody and control of said moneys of and belonging to said Elizabeth Heaney; and the said James McHale did then and there become and was the trustee and bailee of said Elizabeth Heaney; and the said James McHale, being then and there so authorized by agreement with said Elizabeth Heaney to hold and take such possession, custody and control as aforesaid of the said moneys of said Elizabeth Heaney, and being then and there the trustee and bailee of said Elizabeth Heaney as aforesaid, did then and there receive and have in his possession, custody and control, as such person so authorized by agreement with said Elizabeth Heaney as aforesaid, and as such trustee and bailee, eleven hundred and sixty dollars in money, lawful money of the United States, of the value of eleven hundred and sixty dollars, a more particular description of which said moneys the grand jury is here unable to give, of the money of said Elizabeth Heaney, then and there the true owner thereof. And the said James McHale, on the day aforesaid, and at the place aforesaid, so having in his possession, custody, and control as such trustee authorized by agreement, as aforesaid, to hold and take such possession, custody and control, and as such bailee and trustee of said Elizabeth Heaney as aforesaid, said money of said Elizabeth Heaney, of the value aforesaid, did feloniously appropriate the said money of Elizabeth Heaney, of the value aforesaid, to the use of himself, the said James McHale, with the intent then and there feloniously to deprive and defraud the said Elizabeth Heaney of the same and of the use and benefit thereof. And so the grand jury do say that on the day aforesaid, at the place aforesaid, the said James McHale did feloniously steal eleven hundred and sixty dollars in money, lawful money of the United States, of the value of eleven hundred and sixty dollars, of the moneys of said Elizabeth Heaney, then and there the true owner thereof, against the form of the statute in such case made and provided, and against the peace oj: the people of the state of Hew York and their dignity.”

      Frank Hopkins, for app’lt; T. E. Hancock, dist.- att’y, and B. J. Shove, ass’t dist.-att’y, for People, resp’ts.
   Hardin, P. J.

—We ate of the opinion that the allegations found in the indictment are entirely sufficient to bring the case within the provisions of § 528 of the Penal Code. The People v. Dunn, 53 Hun, 381; 25 N. Y. State Rep., 460; The People v. Willett, 102 N. Y., 251; 1 N. Y. State Rep., 384; The People v. Dumar, 106 N. Y., 502; 11 N. Y. State Rep., 19. In that section it is provided as follows: “A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either (1) takes from the possession of the true owner, or of any other person; or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or writing, or secretes, withholds or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of any kind; or (2) having in his possession, custody or control as a bailee, servant, attorney, agent, clerk, trustee or officer of any person, association or corporation, or as a public officer, or as a person authorized by agreement, or by competent authority, to hold or take such possession, custody or control, any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof; steals such property and is guilty of larceny.”

(2) We are of the opinion that the evidence given upon the trial was sufficient to support the allegations of the indictment and that the verdict of the jury is sustained by the evidence. While there was a conflict in the evidence, and it may be conceded that if the jury had believed the testimony of the defendant and his witnesses a different result might have been reached, yet as the evidence stood it was for the jury to determine which of the witnesses told the truth, and as the verdict is supported by the evidence we are not inclined to interfere with it.

The prosecutrix in the course of her testimony, among other things, said, that the defendant “ told me to place the money in his charge and it would be all secure and safe and on hand when wanted; that he was worth double that amount of money and that he would act as trustee. I came back there the following day with my money and gave it to him and he counted it out and then took the money and went off and afterwards returned.” She also testified that she never said to the defendant “ that he might use this money.”

In the course of the conversation held with the defendant by an attorney employed by the prosecutrix to demand the money of the defendant, the defendant stated: “ The money is spent and I cannot pay it back and that is all there is of it; I have not got it and she cannot get it; ” again it appears that he said on one occasion “ He wouldn’t pay it over; he had the money and he wouldn’t pay it; ” and being further pressed by the attorney for the money in behalf of the prosecutrix, the defendant said: “ You may go to hell and get it; you don’t get it from me.” There was evidence given tending to show the defendant was insolvent and that he had wrongfully appropriated the money of the complainant.

(3) We are of the opinion that the circumstances indicating that the complainant showed some anxiety lest the poor authorities of the city of Syracuse should learn that she was the owner of the money furnish no defense to the defendant. Whatever the prosecutrix, anxieties may have been upon that subject the defendant was not thereby authorized to steal and retain her money or justified in the crime when charged therewith.

Our attention is called to Leonard v. Poole, 114 N. Y., 371; 23 N. Y. State Rep., 753, by the counsel for the appellant. We think the case does not aid his contention. That was an action by one co-conspirator to recover of another, and it was said: “The courts will not interfere in favor of any one of the parties to give him redress for frauds perpetrated upon another to his detriment in carrying out the unlawful enterprise; ” and that an action to compel one to account would not be maintainable.

(4) After the evidence was closed the defendant submitted a motion to dismiss the indictment, and the motion was denied. Thereupon the counsel for the defendant stated: “ I also observe, I only just observed it, or I suppose I should have spoken of it before, that the indictment does not show that Mr. McHale has been arraigned and plead; and it does not appear that he has been arraigned and pleadthereupon the district attorney remarked: “We will arraign him now,” and a further statement was made to the effect “that the defendant has been in court for the last two or three days, that the counsel has been acquainted with the indictment, and had plenty of opportunity. That he has been here with counsel and had plenty of opportunity to see the indictment and read it, and further that the contents of the indictment, and its different counts, were stated at the beginning of the case by counsel, and that no objection has been raised by the counsel until the close of the case;” and thereupon the district attorney asked the court to “ enter a plea of not guilty upon the record;” to that the court responded, viz.: “ I think he may be arraigned now; we have done that repeatedly ;” thereupon the defendant's counsel took an exception to the procedure. It is insisted by the counsel for the defendant “ that it was error to arraign the defendant against his objection after the close of the evidence.” By § 333 of the Code of Criminal Procedure it is provided that every plea must be oral and must be entered upon the minutes of the court. There is nothing in that section prescribing the time when the plea shall be entered. Section 334 of the Code of Criminal Procedure prescribes the form of a plea in case the defendant pleads not guilty, which shall be by use of the phrase, “ the defendant pleads not guilty ” (subd. 3 of § 334); and § 338 of the Code of Criminal Procedure provides that: “ The plea of not guilty is "a denial of every material allegation in the indictment;” and § 339 provides, “ All matters of fact, tending to establish a defense, other than that specified in the third subdivision of § 332, may be given in evidence under the plea of not guilty;" and then § 342 provides that if the defendant refuse to answer an indictment by demurrer or plea, a plea of not guilty must be entered.

It is apparent from the record that the defendant was permitted to give all the evidence and to make all the motions and use all the objections for a defense upon the trial before he called attention to the circumstance that there had been no formal arraignment which he could have availed of if the former plea of not guilty had been entered ; we are, therefore, unable to see that he suffered any by the delay in entering the plea of not guilty. We think a case is presented where the provisions of § 285 of the Code of Criminal Procedure should be applied, which declares “nor can the trial, judgment or other proceedings thereon be affected by reason of any imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

In People v. Williams, 18 N. Y. State Rep., 405, it was held that this section was intended to cure defect's in form under the general rules of pleadings. See, also, People v. Peck, 2 N. Y. Crim., 317.

In Pierson v. The People, 79 N. Y., 424, it was held that a prisoner might waive any irregularity which existed in the case. In the course of the opinion in that.case are found words which we think are applicable here: “ If, therefore, there was any irregularity which would be ground of error, it was merely formal, affecting no public interest, trenching upon no public policy ; and to hold that it could not be waived would be without precedent and against reason." This case was referred to approvingly in Wainman v. Hampton, 110 N. Y., 432; 18 N. Y. State Rep., 320.

The language used by the court in People v. Osterhout, 34 Hun, 262, is also applicable, to wit: “ especially in a case where the prisoner appears with his own counsel, the omission formally to arraign and to ask for a plea is immaterial to his rights and may be deemed to be waived.”

We see nothing in The People v. Bradner, 107 N. Y., 1; 10 N. Y. State Rep., 667, cited by the counsel for the appellant, which aids his contention. In that case it was held : “A formal plea of not guilty, however, is not necessary to put the defendant on trial; a demand of trial by him is equivalent to such a plea.”

We fail to see that the defendant has been deprived of any right. Apparently he acquiesced in proceeding to trial before a jury on the indictment, and presumably he was aware, during the whole progress of the trial, that a formal plea had not been entered; and from the circumstances disclosed by the record we are of the opinion that the entry at the close of the evidence of his plea of not guilty was proper,'and that no prejudicial error of which he can avail appears by reason of the delay in the entry of such plea. Gibson v. The People, 5 Hun, 543, and cases cited. We are of the opinion that the verdict should be allowed to stand.

Judgment of conviction of the court of sessions of Onondaga county affirmed, and proceedings remitted to that court.

Martin and Merwin, JJ., concur.


author: Hardin, P. J. Martin, J.

text:
    George S. Gilbert, Resp’t, v. The Shortsville Cart Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Venue—Change op.
    The discretion of the court in granting or refusing a motion to change the place of trial on the ground of the convenience of witnesses will not be disturbed unless it clearly appears that it was improperly exercised.
    2. Same.
    The fact that the affidavit used on such motion does not set forth specifically the grounds relied upon to establish that the witnesses whose testimony is sought will testify as detailed in the affidavit may be considered in determining the merits of the motion.
    Appeal from an order made at the Cortland special term denying motion to change venue from Cortland to Ontario county.
    Action to recover for the alleged conversion of the tools used by the plaintiff as a mechanic alleged to be of the value of $125.

      Francis L. Brown, for app’lt; Franklin Pierce, for resp’t.
   Hardin, P. J.

—We think the order should be affirmed. In Carpenter v. Continental Insurance Company, 31 Hun, 78, a somewhat similar case was under review. In that case the court said: “We certainly are unwilling generally to review the discretion exercised in a motion of this kind, thinking that the discretion of the special term is as good as that of the general term.” That case correctly states the rule which we have frequently followed.

In looking into the affidavits we find the appellant’s affidavit does not set forth specifically the grounds relied upon to establish that the witnesses, whose testimony is sought for the belief, will testify as detailed in the affidavit. This circumstance may be considered, among others, in determining the merits of the motion. Myers v. Village of Lansingburgh, 8 N.Y. Supp., 92; 28 N.Y. State Rep., 250.

The case in hand differs somewhat from Klienhans v. Whiting, 33 N. Y. State Rep., 956, in which case “all the matters in issue” arose in the county in which the venue was laid, and hence an order changing the venue from that county to another county was reversed. In the case in hand a demand and refusal took place in the county of Cortland, where the venue was laid, and where it remains under the order appealed from. We are not prepared to say that the discretion of the special term was improperly exercised or took the wrong direction. We therefore affirm its order.

Order affirmed, with ten dollars costs and disbursements.

Martin, J.

—I think the plaintiff’s affidavits sufficiently stated the grounds for his belief that the witnesses named therein were material and necessaiy, and that the special term was justified in denying the plaintiff’s motion. I therefore concur in the conclusion of my brother Hardin that the order should be affirmed.

Merwin, J., concurs.


text:
    Robert Reuben, Resp’t, v. Joseph Andorsky, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Appeal from an order of the Tioga special term, denying motion to change the place of trial from Chemung county to Monroe county on the ground of convenience of witnesses.

      Raines Brothers and Abraham Benedict, for app’lt; Jacob Schwartz, for resp’t.
   Hardin, P. J.

—Appellant criticizes the affidavit of the respondent used upon the motion. The appeal book does not show that any objection was taken to the form of the affidavit at the special term ■ however, we are of the opinion that the criticism is not controlling. We think the affidavit was not fatally defective.

We have had occasion to express our views in Gilbert v. Shortsville Cart Company, decided at this term (see opinion of Hardin, P. J.), upon the subject of the criticism made to the affidavit, as well as upon the rule applicable to motions of this character.

After a careful examination of the affidavits used on either side, we are of the opinion that we ought not to interfere with the discretion exercised at the special term. We, therefore, sustain its order.

Order affirmed, with ten dollars costs and disbursements

Martin and Merwin, JJ., concur.


author: Harden, P. J.

text:
    George Spies, Resp’t, v. The Rome, Waterown & Ogdensburg R. R. Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Ejectment—Adverse possession.
    One 0., in 1805, conveyed certain premises to the board of supervisors as a site for a court house, the deed containing a condition for a reversion in case the premises should cease to be the place for holding court. In 1842 C. conveyed certain premises to plaintiff's predecessor, and he and his predecessors in title have been in possession until 1886. The premises conveyed to the supervisors ceased to be used for court purposes in 1860, and subsequently were conveyed to defendant, which laid its track thereon in 1886. Held, that plaintiff had acquired title by adverse possession sufficient to entitle him to maintain ejectment against defendant.
    2. Same—Title.
    If the premises described in the deed to plaintiff’s predecessor were covered by the deed to the supervisors and to defendant, the title reverted to O.’s heirs and assigns, and under the covenants in his deed vested in plaintiff. •
    Action to recover the possession of a small parcel of real estate in the city of Watertown. The complaint alleges that from March 1, 1856, to January 10, 1886, the plaintiff was lawfully possessed of the land and premises described in the complaint, and that the defendant unlawfully, on the 10th day of January, 1886, “ entered into and upon said premises and unlawfully withholds from the plaintiff the posséssion thereof, to the plaintiff’s damage $150.”
    Defendant admits its incorporation and denies the other allegations of the complaint. By consent of the párties the cause was tried at special term, and the court found: “ That the plaintiff, George Spies, is the owner, and was lawfully in possession of the lands and premises described in the complaint in this action, from the 1st day of March, 1856, to the 10th day of January, 1886; ” also, “ that the estate of the plaintiff, George Spies, in said premises is in fee simple absolute; ” also, “ that on or about the 10th day of January, 1886, the defendant, the Eome, Water-town & Ogdensburg Eailroad Company, unlawfully entered into and upon said premises, took possession of the same, and still unlawfully withholds from the plaintiff the possession thereof; ” and he found that the damages sustained by the plaintiff amounted to the sum of $163.34; and as a matter of law the court found that the plaintiff was entitled to recover the possession of the premise’s and the damages for withholding the same, and ordered judgment accordingly. Exceptions were filed to the findings. Judgment was entered in accordance with the decision and the defendant appeals from the judgment so entered in Jefferson county.

      Edmund B. Wynn, for app’lt; George S. Hooker, for resp’t.
   Harden, P. J.

—After a careful 'perusal of the evidence, the conclusion is reached that the findings of fact are sustained by the evidence. While there is some obscurity produced by the evidence, and some of the evidence tends to show facts inconsistent with the findings made by the trial judge, we are of the opinion that the conclusions of fact are sustained by evidence given upon the trial. We therefore accept the conclusions of fact stated. Wright v. Sanders, 65 Barb., 214.

It is apparent from the evidence that the title to the premises was originally in one Henry Coffeen. In April, 1842, Coffeen made a conveyance to He well & Haas, having theretofore in 1805 made a conveyance of certain premises to the supervisors of Jefferson county of about two acres and a half to be held as a site for a court house and jail. The deed to the supervisors contained a condition that if it shall happen that the site for the court house and jail shall at any time be removed from the above mentioned premises, or otherwise it shall cease to be the place for holding the courts for the said county, that then and in such case the above granted and described premises, and every part and parcel thereof, with the appurtenances, shall revert back unto the said party of the first, his heirs or assigns, in as full and ample a manner as though the same had never been granted in manner aforesaid.” In 1823 the court house that was erected on the premises so conveyed to the county was burned, and thereafter the county built “ a stone court house; ” that has been taken down and the use of the real estate for court house purposes •ceased about 1860 or 1861.” “ There have been no courts held on that lot since.”

It appears by the evidence that Hewell & Haas upon receiving a deed of the premises in 1842 went into possession of them, and that by a deed bearing date October 25, 1853, they conveyed the premises to one Ellihue Corss, who went into possession of the premises described in the complaint, and on the 22d day of December, 1853, he executed a deed conveying the premises to one Samuel W. Hall. Hall entered into possession of the premises, and he and his wife conveyed them to the plaintiff by a deed dated March 1,1856, which was recorded March 17,1856, and the evidence tends to show that the plaintiff the year before he purchased the premises of Hall had taken a contract therefor, and he entered into possession of them under the contract claiming, as purchaser, and that upon receiving a deed he continued in possession down to the 10th day of January, 1886, when the defendant took possession of the same against the protest and objection of the plaintiff.

The plaintiff testified, viz.: “ I have remained in possession of the premises decribed in that déed ever since down to 1886, January 10th; I was in possession of the premises described in the complaint up to January 10,1886; I remained in possession from a year or two prior to the giving of this deed, down to the 10th of January, 1886; in the afternoon of Sunday, January 10, 1886, I went down there and saw these people laying a track; I said, ‘ What are you doing ? ’ They said they were ordered to lay a track there; said I, ‘You keep off here, or I will make you trouble"; ’ they went on laying the track; they said they were ordered to; I had a lot of timber and lumber piled up on the premises there at the time; I used the balance of this lot for piling lumber and timber; there was a cooper shop on the lot. * * * They laid the track across the premises on Sunday.”

After this evidence had been given, the counsel for the defendant said, “We admit we laid the track, and have been using it ever since.”

In Jackson v. Harder, 4 Johns., 203, it was held that a person in possession “ under color of title is held entitled to recover in ejectment against a mere intruder or trespasser.” The case from which we have just quoted was recognized and followed in Clute v. Voris, 31 Barb., 514. We think there was nothing in the evidence which would warrant the finding that the plaintiff had abandoned the claim which he had to the premises by reason of his long continued possession thereof. Whitney v. Wright, 15 Wend., 172.

In Cahill v. Palmer, 45 N. Y., 479, it was said: “Where the possession is actual, exclusive, open and notorious, under a claim of title adverse to any and all others for the time prescribed b}r statute, such possession establishes a title.” We think the possession shown in the plaintiff and his grantors was persuasive and strong evidence of title to the premises in the plaintiff. Argotsinger v. Vines, 82 N. Y., 308.

.In Sherman v. Kane, 86 N. Y., 57, it was said : “Where title to land has been acquired by twenty years adverse possession, it is equally strong as one obtained by grant.”

(2) If it be assumed that a portion of the premises described in the complaint and in the deed from Coffeen to Haas and Newell was covered by the prior deed from Coffeen to the supervisors, .and by the supervisors to the railroad company, and that the title to the land conveyed to the supervisors reverted to the heirs and assigns of Coffeen in pursuance of the condition found in the deed to the supervisors, then in virtue of the deed from Coffeen to Newell and Haas, which contained covenants of warranty and quiet enjoyment, it would seem the title would vest in the plaintiff. House v. McCormick, 57 N. Y., 310.

We are of the opinion that the evidence fully warranted the trial court in finding as a matter of fact, viz.: “ That the plaintiff, George Spies, is the owner, and was lawfully in possession of the lands and premises described in the complaint in this action from the 1st day of March, 1856, to the 10th day of January, 1886,” and that on the latter date the defendant “ unlawfully entered into and upon said premises, took possession of the same, and still unlawfully withholds from the plaintiff the possession thereof.”

We see no error as to the finding of the damages sustained by the plaintiff. We think the conclusion of the trial judge should be sustained.

Judgment affirmed, with costs.

Martin, J.. concurs; Merwin, J., not sitting.


text:
    The People ex rel. George H. Lester, Resp’t, v. Edward Mitchell, as Mayor of the City of Oswego, and John Dowdle, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Mandamus—Appeal. '
    An appeal will not lie from an order granting an alternative writ of mandamus. The granting of such writ is a matter of discretion, and the remedy of a person aggrieved thereby is by appeal from the final order made in the proceeding.
    Appeal from an order allowed on a motion made at the Oswego special term, allowing an alternative writ of mandamus to issue against Edward Mitchell, as mayor of Oswego city, “ directed to the said Edward Mitchell, as mayor of the city of Oswego, commanding him forthwith to appoint George H. Lester, the relator, to the office of city chamberlain of the city of Oswego, or to show cause to the contrary at the office of the clerk of Oswego county, in the city of Oswego, in said county, within twenty days after the service of said writ upon him; ” which order also "denied the relator’s application for a peremptory writ of mandamus. "The -notice of appeal appears to be from the whole order, although, after describing the order, the following words are found in the notice of appeal, to wit: “ which order directs that an alternative writ of mandamus issue out of and under the seal of this court, directed to the said Edward Mitchell, as mayor of the city of Oswego, etc.”

      Thomas H. King and John B. Higgins, for' app’lts; Lester & Smith, for resp’t.
   Hardin, P. J.

—In People v. Ransom, 2 N. Y., 490, it was said, that “an alternative mandamus is in the nature of a declaration.”

In Fiero on Special Proceedings, at page 72, it is said : “ The writ of alternative mandamus is, when granted in the first instance, in the nature of an order to show causa People v. Rensselaer Common Pleas, 3 How., 164; Bank v. Canal Com., 10 Wend., 25. But also stands as a pleading. People v. Ovenshire, 41 How., 164.”

In People ex rel. McMackin v. Board of Police, 107 N. Y., 235 ; 11 N. Y. State Rep., 412, the court, in considering the nature of a writ of mandamus, says that when it is “ asked against public officers to compel the performance of an alleged public duty, the granting or refusing of the writ is somewhat a matter of discretion.”

The special term having exercised its discretion in the case before us in allowing an alternative writ of mandamus, we see no occasion to disturb the result of that discretion.

In People v. Board of Supervisors, 3 N. Y. Supp., 752; 19 N. Y. State Rep., 24, we said : “ Whether mandamus was a proper remedy, ana whether the relator had another legal remedy, were, we think, questions that should have been raised by a return to the writ, or by a demurrer, as provided for by § 2076 of the Code of Civil Procedure, and not by motion.” Applying the doctrine of that case we may appropriately say that such questions are not fairly before us on this appeal.

It is provided by § 2087 of the Code of Civil Procedure that “ An appeal from a final order made upon an alternative mandamus must be taken as an appeal from a judgment; and each provision of law relating to an appeal from a judgment, either to-the general term or to the court of appeals, is applicable thereto.,r It may be observed that if there shall be a final order made in these proceedings upon “ an alternative mandamus " that the party against whom the order is made may have his remedy "in virtue of that section.

(2) Regarding, as we think we should, the appeal before us as bringing up that part of the order which refused a peremptory mandamus, it may be observed there is no occasion to reverse that part of the order. It seems the question which the relator-seeks to have determined in these proceedings is like the one presented to this court in People ex rel. Hall v. President, etc., of the Village of Little Falls, 29 N. Y. State Rep., 723. That decision seems to be adverse to the relator; however, we do not consider it opportune to pass upon the merits of the application made by the relator at this time; however, we think the order made at special term should remain.

Order affirmed, with ten dollars costs and disbursements.

Martin and Merwin, JJ., concur.


author: Hardin, P. J. Martin, J. Merwin, J.I

text:
    John W. Griswold and Frank B. Griswold, Resp’ts, v. Leander Burroughs and John Stimson, Impl’d, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Evidence—Admissions.
    In an action to rescind a sale on the ground of fraud and to recover possession of the goods from those who have attached them, evidence of the declarations of the vendee tending to show fraud in the purchase is inadmissible as against the defendants who levied the attachment.
    3. Sale—Rescission—Demand.
    Plaintiffs sold certain goods to one L., which were _evied upon while in the freight house of the railroad by defendants under an attachment against L. In an action to set aside the sale to L. on the ground of fraud and to recover the goods, Held, that the original possession of the defendants was lawful, and that a demand and refusal was necessary before the action could be maintained against them.
    Appeal from a judgment of the county court of Madison county affirming a judgment of a justice’s court. The action was commenced in October, 1888, and proceedings in replevin were issued. Frederick W. Lipe, who is named as a defendant in the summons and proceedings, was not served with the summons. The defendants, Burroughs and Stimson, appeared and joined issue before the justice. The issues were tried before a jury, and the return of the justice is to the effect, viz.: “ Jury retire and return a verdict for plaintiffs for possession of property. Jury discharged. Judgment entered of twelve dollars costs against defendants.”

      George N. Bauder, for app’lts; D. M. Tuttle, for resp’ts.
   Hardin, P. J.

—Plaintiffs, by their agent Iler, sold to Lipe 120 bundles of wire in the month of September or the forepart of October. While the property was in the freight house of the Hew York Central depot one Bauder procured an attachment, from a justice of this court which was put into the hands of the sheriff, one of the defendants, and his deputy, the other defendant, levied upon the property prior to the commencement of this action. Plaintiffs bring this action seeking to rescind the contract of sale which they made of the property to Lipe, on the ground that the same was induced by fraud, in that the purchaser, Lipe, did not disclose that he was insolvent at the time of making the purchase of the property. Lipe was not called as a witness at the trial. John Hodge was called as a witness, and testified that he had had a conversation with Lipe; and upon his being asked to state the conversation, the defendant objected to it as incompetent, immaterial and irrelevant; the objections were overruled.

The witness then testified: “He asked me if it ever occurred to me how easily he could establish credit with manufacturers of bale ties or those he bought of by paying cash on the start, then get credit for a short time, and finally place a large order and dispose of it for less than it cost before it came due and let them get their pay the best way they could.” Defendant Lipe not having been served with process was not a party to this action. The admission of evidence, which we have quoted, of his declarations, was error. When the witness Bennett was upon the stand, he referred to a conversation he had had with Lipe about the 28th of September, and when he was asked to state it, objections were made and the justice overruled the objections. We think the evidence was improperly received.

(2) The cause having been adjourned to the 20th of December, 1888, the parties appeared before the justice and an application was made for an adjournment. In the early part of the application it appeared to have been predicated upon the desire of the defendants to have a commission to take the testimony of Lipe. Objections were raised and the application was denied. The defendants proposed to submit an affidavit on the application to procure the adjournment and the court refused to receive the affidavit. A further application was made by the defendants, Burroughs and Stimson, “for an adjournment on the ground that there are necessary and material witnesses whose attendance they had not been able to procure, and offer to swear witnesses to make a case, and also ask the court to file an affidavit of H. L. Bauder in addition. The above offer refused by the court:” No good reason appears why the justice should not have entertained the application and taken what evidence the defendants were able to furnish of the necessity for an adjournment; of the materiality of the witnesses whose attendance they sought. It seems the justice applied a very stringent rule, and that assuming that the question of an adjournment at that stage rested largely in his discretion, it is more than probable that he abused the discretion.

(3.) The justice, by his return, fails to show that he entered a judgment in accordance with the verdict “for the return of the property.” It seems to me the justice’s judgment and the judgment of the county court, affirming the same, should be reversed.

Judgment of the county court of Madison county and of the justice’s court reversed, with costs.

Martin, J.

—The plaintiffs in this action sold the wire in question to one Lipe. It was delivered at the station at Oneida. While there it was attached by one of the defendants as sheriff. The plaintiffs subsequently sought to rescind the contract of sale and recover the wire on the ground that it was obtained by fraud. Fraud in such case does not intercept the passing of the title to the purchaser, but the title acquired is defeasible, subject to the right of the vendor on discovery of the fraud to reassert his original right and reclaim the property, unless it has come to the hands of a Iona fide purchaser. Goodwin v. Wertheimer, 99 N. Y., 152. And where the original possession of the defendant is lawful and not tortious, it is necessary to change the character of his possession by a demand and refusal before the plaintiff can maintain an action to recover the property. Id., 153.

In the case at bar, the sale of the wire in question was not void, but voidable. It was valid and passed the absolute title to Lipe, subject to the right of the plaintiffs to rescind the sale on the discovery of fraud and reclaim the goods. The interest which Lipe thus acquired the defendant attached and took possession of the property. His possession was lawful, even against the plaintiffs, until they rescinded the contract His original possession having been lawful, a demand and refusal were necessary to change its character before this action could be maintained. Goodwin v. Goldsmith, 49 Supr. Ct., (17 J. & S.), 101.

This case is clearly distinguishable from those cited by the respondents. In those cases the officer was a wrong-doer when the property was attached or levy made. In this case Lipe owned the property when the attachment was levied, and the defendant was not a wrong-doer in attaching it If the plaintiffs had not subsequently rescinded the contract, they would have had no interest whatever in the wire in question. The title would have continued in Lipe. After such rescission they could only change the character of the defendant’s possession by a demand and refusal. I think the court erred in not granting the defendant’s motion for a nonsuit

I therefore concur in the result of the opinion of Hardin, P. J.

Merwin, J.I

— think the appellants Burroughs and Stimson were entitled to have a demand made before suit, and for lack of this the plaintiff must fail. The declarations of Lipe as testified to by John Hodge were simply admissions by Lipe, and were clearly inadmissible against the appellants. Truax v. Slater, 86 N. Y., 630; Flannery v. Van Tassel, 37 N. Y. State Rep., 228, and cases cited. For these reasons I favor reversal.


text:
    The Salt Springs National Bank of Syracuse, Resp’t, v. George B. Sloan, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Guaranty—Of payment—Release of guarantor.
    Defendant executed and delivered to plaintiff his bond guaranteeing the payment of certain drafts discounted for the firm of B. & C., in case plaintiff was unable by due diligence to collect the same within one year. In an action on said bond the evidence showed that plaintiff filed its claim upon said drafts with the assignee of B. & C., and had brought an action against B. & 0., but had consented to extensions of time to answer for ninety-nine days; that execution was not issued against them until after the year expired, and was not returned until after this action was commenced. Held, that it was error to refuse a motion to nonsuit and submit the question of due diligence to the jury as one of fact.
    Verdict at the Oneida circuit for plaintiff for $5,814.99. Motion for a new trial on the minutes denied. This case was before us on a former appeal, and is reported in 57 Hun, 265; 32 N. Y. State Rep., 652. At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon the following grounds:
    “ First. Because the plaintiff has failed to prove facts sufficient to constitute a cause of action.
    “ (a) By not showing execution issued against the principal debtors, and returned before suit brought.
    “ (b) By showing the execution was not issued until the year limited by the bond had expired.
    “ (c) By showing one draft was never sued.
    “ (d) By voluntarily giving Baker & Clark time to answer to the complaint
    “ Second. Because the plaintiff has been guilty of laches in not pushing the drafts to judgment, and issuing execution thereon.
    “ Third. Because the plaintiff has failed to show due diligence,, the condition precedent expressed in the bond.”

      The motion was denied and an exception was taken. At the close of the evidence the defendant made a motion based upon similar grounds, and the motion was denied and an exception was taken.
    In the course of the charge the trial judge said, viz.: “ I am going to leave all that as a question for you, for you to say whether they used due diligence or not. The language of the bond and of the agreement is, that they shall use due diligence. If they failed at any time during the year this bond ran to use that due diligence, then they failed to comply with the condition which they were obliged to comply with in order to maintain this action at all.” Again he said: “I think it is competent for the defendant to claim, if the fact be true, that there was a failure to exercise due diligence after the expiration of the year, and before the commencement of this action.” Also, “Whether they are entitled to recover that depends upon whether they exercised due diligence in the collections of those claims under the conditions of the bond and agreement. If they did- exercise due diligence, which is for the plaintiff to show, and is a condition precedent, they would be entitled to recover. If they have not satisfied you that they have exercised due diligence during the year, although they did obtain the money afterwards, they, are not entitled to recover. I am requested to charge in behalf of the plaintiff, that under the bond and agreement it was not necessary for plaintiff to proceed against both Baker & Clark and their assignee for the collection of the drafts, but it could discharge its obligation by proceeding against either one of them. As I have already indicated, I decline to charge that I charge it was their duty to proceed against the assignors and assignee too.” The judge also charged: “ It is for the jury to say at each step of the case, whether in doing what he did do, he failed to exercise due diligence, or whether he did exercise due diligence.”
    An action was not commenced against Baker & Clark until August, 1887; they obtained extensions by the consent of the plaintiff’amounting to some ninety-nine days, and judgment was not •entered until January 4,1888. No execution was lodged with the sheriff until the 23 d of February, 1888, which was several days after the expiration of the year mentioned in the defendant’s bond. This action was commenced on the 17th of March, 1888. No execution was returned until April 12, 1888, when the execution was returned nulla bona. February 24, 1887, proof of claim upon the drafts was filed by the plaintiff with the assignee of Baker & Clark but no final accounting was had by the assignee prior to the commencement of this action.

      Francis E. Hamilton and Elisha B. Powell, for app’lt; Frank H. Hiscock, for resp’t.
   Hardin, P. J.

—It seems to be conceded by the respondent that “the facts now presented being practically unchanged,” or not essentially different from those presented to us on the former appeal, we therefore think we should follow our former decision in disposing of the appeal now before us. Applying the doctrine of ¿he opinion, delivered, we think the learned trial judge erred in refusing a motion for a nonsuit and in submitting the question of due diligence to a jury as one of fact, and that the verdict is not supported by the evidence.

Our attention is called to Mead v. Parker, 41 Hun, 577; 5 N.Y. State Rep., 194; S. C., affirmed, 111 N. Y., 259; 19 N. Y. State Rep., 363. That was an action upon a guaranty of collection of a bond and mortgage. The suit was defended on the ground that the plaintiff has not been “ reasonably diligent in his efforts to collect.” “At the trial the plaintiff introduced parol evidence, for the purpose of showing that the defendant consented to the delay and waived performance of the condition of the guaranty, which the law implies, that the assignee of the bond and mortgage shall proceed with reasonable diligence to collect them; ” and it was held “ that the reception of parol proof, tending to show such consent and waiver subsequent to the making of the guaranty was not error.” See opinion of Smith, P. J., 41 Hun, 578 ; 5 N. Y. State Rep., 194.

In the course of the opinion in the court of appeals it is said: “No man could say upon an issue of due diligence that a plaintiff had failed to exercise it by commencing his action against the principal debtor when, in justification of such failure, he showed a parole request of the surety to refrain from the commencement of the action until a certain time had elapsed within which he said • he had no doubt that the principal debtor would pay. It certainly is competent evidence, as showing the circumstances in existence which rendered the action of the plaintiff reasonably diligent in prosecuting the suit to foreclose the mortgage, and it did not, in any degree, alter the contract which was made by the defendant in writing.” See 111 N. Y., 263; 19 N. Y. State Rep., 363.

In the case in hand no acquiescence was shown or consent given by the defendant to any laches, omissions or delays of the plaintiff. • In the case of Mead v. Parker, supra, the evidence relating to the acquiescence or consent of the creditor was of such a character as to warrant the submission of the question to the jury in respect thereto. The finding of the jury of a waiver by the defendant of strict performance on the part of the plaintiff” was upheld, it being said near the close of the opinion, “ there was sufficient evidence in the case to support the verdict.” We think the case in hand differs from that one.

In Beardsley v. Fowler, 23 Barb., 628, it was held “ Nothing will excuse the party holding the guaranty from the performance of this condition, except the act of the guarantor himself. It will not suffice for such party to say it would have been of no use to prosecute.” That was an action upon a guaranty of a bond and mortgage, and it was held that the waiver by the guarantor of the proceedings to foreclose the mortgage did not excuse the assignee from proceeding against the mortgagor as stated upon the bond. In the course of the opinion it is said : “ There is not evidence sufficient to be submitted to the jury of any waiver excepting to what related to the foreclosure of the mortgage; the evidence touching the waiver relates entirely to the mortgagee,” and a non-suit was upheld.

In Tiffany v. Willis, 30 Hun, 266, it was said by this court in the course of the opinion delivered in that case, viz.: “As there was no dispute about the situation and circumstances of the parties, and no question as to the steps which have been taken or omitted by the guarantee against the principal debtor, the question of due diligence was a question of law. Burt v. Horner, 5 Barb., 501.” Following the reasoning of our former-opinion in this case we feel constrained to set aside the verdict and order a new trial. 57 Hun, 265 ; 32 N. Y. State Rep., 652.

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

Martin and Merwin, JJ., concur.


author: Barnard, P. J.

text:
    In the Matter of the Judicial Settlement of Catharine Blauvelt et al., Ex'rs of Isaac I. Blauvelt, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Will—Constbuction—Powee of sale.
    Testator, by his will, gave to his wife during her widowhood the use of all his estate with full power of sale “as to her shall seem just,” and after her death gave one-half of the estate in trust for each of his daughters, with remainder to their children. Held, that while the widow might sell the land for the purposes of the will, she was not entitled to the proceeds as her own. She may have the entire use of them, but they must go to the daughters and their children as provided in the will.
    2. Same—Accounting. .
    The proceeds of such sale become personal property, and the surrogate as jurisdiction to compel an account therefor.
    Appeal from decree of the surrogate of Rockland county, made on an accounting.
    The facts are fully stated in the opinion of the surrogate.
    Weiant, S. —The testator, by his will, bequeathed and devised his estate as follows, after payment of his debts:
    I give unto my wife, Catherine, during her widowhood, the use of all my real and personal estate, authorizing her to sell and dispose of any of my real estate as to her shall seem just, giving and executing all deeds and writings necessary to secure the purchasers in all right of ownership in the same manner as I could have done if living. After the death of my wife, Catherine, I order that my property be equally divided between my children, Catherine Elizabeth and Julia Frances; that is to say, I give to my executors in trust for and during the natural life of my daughter, Catherine Elizabeth, for her sole use and benefit, the income and profit of the one equal half of all my real and personal estate, and after her death I order the said half of my estate to be equally divided among her heirs as they shall attain the age of twenty-one years each, if any shall be minors at 'her death. I also give to my executors in trust for and during the natural life of my daughter, Julia Frances, for her sole benefit-and use, the income and profit of the other one equal half of all my real and personal estate, and after her death I order the said half of my estate to be equally divided among her heirs as they shall attain the age of twenty-one years each, if any shall be minors at the time of her death.
    I further direct my said executors to pay the said income and profit to my daughters, Catherine Elizabeth and Julia Frances, in half yearly payments, the said Catherine Elizabeth and Julia Frances giving their receipts for the same.
    If either of my children, Catharine Elizabeth or Julia Frances, should die before their heirs shall have attained the age of twenty-one years. I order that the said heirs receive their proportion of the income to which their mother was entitled while living, in half yearly payments.
    The testator’s widow and his daughter Julia Frances are the acting and accounting executrices. The widow, under the power of sale given her in the will, has sold and conveyed certain of the real estate of the testator, and the contestants claim that the executrices must account for the proceeds of such sales as a part of the residuary estate bequeathed and devised to the two daughters of the testator and their respective heirs.
    The widow contends that by virtue of § 81 of 2 E. S., 732, upon the execution of such power of sale she became the absolute owner of the proceeds.
    That section provides that “ where an absolute power of disposition, not accompanied by any trust, shall be given to the owner of a particular estate for life or years, such estate shall be changed into a fee absolute in respect to the right of creditors and purchasers, but subject to any further estate limited thereon in case the power shall not be executed or the lands shall not be sold for the satisfaction of debts.”
    I do not understand the power of sale conferred upon the widow under this will to be an absolute one, such as is contemplated by this statute. Terry v. Wiggins, 47 N. Y., 512-516.
    “ Every power of disposition shall be deemed absolute, by means of which the grantor is enabled in his lifetime to dispose of the entire fee for his own benefit.” 2 R. S., 733, § 85.
    The will, when considered in all its parts, does not indicate that the power was conferred to dispose of the entire fee for the widow’s own benefit.
    It must rather be construed as for the benefit of all to realize a greater income, to facilitate distribution, to save partition. Mut. Life Ins. Co. v. Shipman, 108 N. Y., 19; 12 N. Y. State Rep., 802.
    “ To sell and dispose of the real estate as to her shall seem just ” must mean just'to all interested in such estate. It is very clear from the whole instrument that the testator did not intend to confer such an absolute power of sale as would destroy the devises over of his estate.
    The provisions disposing of his property after the death of the widow are specifically set forth, and he thereby bequeaths and devises “ all my real and personal estate.”
    If the widow is given by virtue of the power an absolute title to the real estate, then the testator had no real estate to devise after his widow’s death.
    To warrant such a construction of this devise to the widow as would nullify express, subsequent provisions of his will, specific terms having that effect must appear in the instrument.
    The testator in exact words limited the estate of his wife to the use of all his real and personal estate during her widowhood, and to enlarge this into a fee as to the realty it must appear in clear terms when such enlargement would have the effect of nullifying devises of such realty after the death of the widow. Of course, in the consideration of the question of the effects of this power of sale conferred upon the widow, the distinction must be kept in mind as to whether the question is raised by a purchaser as to his title acquired by virtue of a sale under this power and as here, where it is raised by one claiming under the will an estate or interest in the proceeds. It is doubtful whether the testator intended conferring other than such power as a life tenant may exercise. Even the words “ dispose absolutely ” may have their absolute character qualified by restraining words connected with and limiting them to mean such absolute disposal as a tenant for life may make. Smith v. Bell, 6 Peters (U. S.), 68. To the same effect, Brant v. Virginia Coal Co., 93 U. S., 326; Bradly v. Westcott, 13 Vesey, 445.
    But even if the power of sale intended to be given the widow was to sell the realty with the full title of the testator, if she saw proper to exercise the same to enable her to realize a larger income therefrom for herself, yet it did not confer upon her the absolute title to the proceeds of the sale so as to cut off the other devisees from all interest therein.
    A sale under this power would not have the effect of destroying the devise to the testator’s daughters and their respective heirs, as the testator had not such an intention. At most it would but cut off their interests in the particular real property sold.
    In other words, the purchaser from the widow might acquire a title in fee, relieved from the claim or estate of such devisees in the realty conveyed, but the proceeds would yet remain as real estate or become personalty to be thereafter still held by her subject to the use and disposition of the real estate according to the provisions of the will. Leonard v. Amer. Baptist Home Mis. Society, 35 Hun, 290, 295.
    Where a testator by his will gave all his real and personal estate to his wife “for her life," she to have the same power of sale and control over said property “ as I could have in my own proper person,” and in the following provision of his will gave to his children, in equal shares, “ all the rest, residue and remainder of my real and personal property in fee, absolutely and forever, which shall remain after the life estate,” in the preceding provision of his will given his wife, it was held by Surrogate Rollins, in Matter of Fernbacher, 17 Abb. N. C., 339, that the grant to the wife of the same power of sale and control of said property as the testator himself possessed, did not, in view of the provisions of the will, enlarge to a title absolute the interest or estate expressly given to the wife for life, and the limitation over to the children was valid.
    This is a well considered case, and the judgment of the learned surrogate is predicated upon an elaborate review of the authorities.
    I consider the determination of the court well founded in that case, and as there is certainly nothing in the provisions of the will of testator in this case more favorable to the widow, I must reach a like conclusion as that of the learned surrogate there.
    Indeed, in that case all the real and personal estate was given to the widow for her life. In this the “use" for life was bequeathed and devised.
    The case1 of Campbell v. Beaumont, 91 N. Y., 464, is not in conflict with the construction I have adopted. There the testator left to his widow all his property, to be enjoyed by her for her sole use and benefit.
    There were no limitations upon the estate given her.
    Futhermore, “ No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate.” 3 B. S. (5th ed.), 13, § 32.
    Unless in some manner or by act or means which the party creating such estate shall in the creation thereof have provided for or authorized. Id., Sec. 33.
    I am unable to perceive how the power of sale bestowed upon the widow in this instance can be so construed as to confer upon her a power that will defeat or bar the estates given to the daughters and their respective heirs. There is nothing in the terms of the will to so indicate, while the instrument as a whole clearly shows a contrary intention. Such a construction would wipe out and expunge the thoughtfully prepared provisions of the will, and it should not be adopted unless the provisions are clearly antagonistic and cannot stand together, or unless such provisions contravene some absolute rule of law. Campbell v. Beaumont, supra.

    Where provisions are irreconcilably conflicting one must give way to the other and that be adopted which seems to accord most nearly with the testator’s primary intention or object in executing the instrument, but when by limiting the character of the first estate the second may also be preserved, it is clearly the duty of the court to do so. Wager v. Wager, 96 N. Y., 174.
    Now is there anything in the will that gives the widow more than the “use ” of the estate during her widowhood.
    That is the estate given to her by expressed words, and there is no provision giving her more. No terms or language are found in the instrument that can, except by the most radical distortion, be construed so as to authorize a complete or partial absorption of the principal estate.
    The instrument as a whole negatives such a construction and widens the interpolation of words and the nullification of parts of the will. No such construction can prevail. Surrogate Bollins so held in the case of Matter of Fernbacher, supra, and there the word “use" or words of like import did not appear as in this.

      My conclusion therefrom is, that the widow takes simply a life interest which entitles her to the use or income during that period, with power of sale of the real estate. It may be absolutely, and of changing the character of the property. That upon her death or the determination of her widowhood the estate real and personal of the testator passes to the daughters and their respective heirs, as provided in the will, whether said property shall then.remain in its original form or shall have been changed to another and without impairment or diminution unless by unavoidable loss or injury, which, in the exercise of tact, judgment and ordinary care and prudence the widow, in the enjoyment of her estate, could not prevent
    The cases cited to sustain the construction that the widow might exhaust or appropriate the body of the estate in her use of the same, are instances when words were used by the testator indicating that he contemplated the exhaustion of or appropriation by the life tenant of the body of the estate, such as in Thomas v. Woolford, 21 Abb. N. C., 231; 16 N. Y. State Rep., 764, where we find used the words “ should there be any left to be divided among the children or their heirs;” In Flanagan v. Flanagan, 8 Abb. N. C., 413, “ the portion left of said remainder;” Matter of French, 13 N. Y. State Rep., 759, “ to do with said property as he shall think best and left by her.” Matter of Williamson, 9 N. Y. Supp., 476.
    The executrices must therefore account for all of the principal estate of the testator that has come into their custody as such, and hold the same in accordance with the provisions of the will as above construed ; applying this construction of the will to certain acts of the executrices in the administration of the estate, it is claimed by the contestants that certain losses of the principal estate have been sustained which the executrices cannot be credited for, as sought in the accounts.
    My present understanding is that the contestants only insist upon the disallowance of five of these credited losses. Two notes made by L. Delos Mansfield for $600 and $1,800 respectively, a bond and mortgage on -lots 3 and 4 of the Washington avenue property made by said Mansfield to the widow Catharine Blauvelt to secure $2,000 dated February 19, 1874, a bond and mortgage made by said Mansfield to Mrs. Blauvelt on lot 6 of the Washington avenue property to secure $2,000 dated November 13, 1873, and a bond and mortgage from said Mansfield to Mrs. Blauvelt on the Hillside property to secure $2,000 given in 1874.
    It seems to be conceded from the evidence that the moneys invested upon these securities were part of the principal estate, that the debtor evidently became insolvent and that the said amounts were entirely lost.. These were trust funds, and the widow and executrices were bound to invest the same in securities regarded in law as proper investments, and to employ such diligence and such prudence in the care and management of them as, in general, prudent men of descretion and intelligence in such matters employ in their own like affairs. King v. Talbot, 40 N. Y., 76-85.

      This necessarily excluded all speculation, all investments for an uncertain and doubtful rise in the market, and of course everything that does not take into view the nature and object of the trust and the consequences of a mistake in the selection of the investment to be made. Id.
    The preservation of the fund and the procurement of a just income therefrom are primary objects for the creation of the trust itself and were to be primarily regarded. Id.
    Within these rules which have been recognized repeatedly by the courts as equitable and just, the investments on the notes were improper.
    Except under special circumstances an executor has no right x to risk upon mere personal security funds that his testator has intrusted to his management, and an investment upon such security constitutes a breach of trust for which the executor is personally chargeable. Matter of Cant, 5 Dem., 269; 3 N. Y. State Rep., 230, and cases cited; Matter of Keteltas, 1 Connol., 468; 24 N. Y. State Rep., 329.
    Ho circumstances appear in the case making it an exception to this rule, and the credits for the losses on these notes must be refused.
    As to the mortgages, I see no escape for the executrices for the losses on two of such investments.
    The executrices are people of honesty and integrity and there is evidence of good faith in the fact that at the time of making the investments they believed that the funds were the absolute property of the executrix, Mrs. Blauvelt, as widow, but upon the proof I am forced to the conclusion that the two losses have resulted from imprudent selection of securities or mismanagement. “ Grood faith and honest intentions will not protect men in the performance of a trust when they depart from prudential rules which the experience of others in similar transactions have approved as the only safe guides.” Bogart v. Van Velsor, 4 Ed. Ch., 718.
    The mortgage on the Hillside avenue property was originally $3,500 and a first lien. This was paid in part and cancelled, to permit Mr. Mansfield, the mortgagor, to obtain a loan of $4,000, to be secured by a mortgage upon the same lands. After which the $2,000 mortgage in question was taken by the executrices as a second lien.
    This may have been a great favor for Mr. Mansfield, but it was the surrender of a perfectly good security for one that was even then reaching the full value of the property and eventually proved worthless. The evidence shows the value of the property to have been only about $6,000.
    There is no good reason why this change should have been made in the proper management of the estate. It was this act that caused the loss. It was a most imprudent thing to do and there is evidence that indicates that these ladies, losing sight of their responsibility to the estate, through kindness of heart sought to favor one who stood somewhat near them by ties of marriage, and unfortunately they must now pay the penalty for granting this favor.

      As to the two mortgages on the Washington avenue property, I think the executrices should be held for one and credited for the other. The one on lots 3 and 4 may perhaps be considered not an imprudent one under all the circumstances then existing. Prices of land in that locality were very high and yet careful men seemed to purchase at such prices and believed the values substantial.
    The evidence shows the two lots to have been worth from $6,000 to $8,000 at the values then prevailing. The mortgages aggregated $5,000. While it is true that the circumstance of an investment on a second mortgage is one of importance on the question of exercise of a proper degree of care, yet it only calls for greater caution in making the investment. I do not understand that there is any rule of law prohibiting the investment of trust funds on other than first mortgages. The question is always one of proper care and prudence.
    In Smith v. Smith, 4 Johns. Ch., 281, Chancellor Kent says, on page 284: “I have no doubt that it is a wise and excellent general rule that a trustee loaning money must require adequate real security or resort to the public funds. If he invested the trust moneys in the public funds he is not liable for the fall of the stock, and probably the depreciation of the real security would come within the reason of that rule.”
    As to these lots there seems to have been, at the time of investment, a margin of from $1,000 to $2,000.
    A general financial panic throughout the country followed or occurred about the same time, and a rapid depreciation of values followed. Under such circumstances I do not think.the law holds a trustee liable for losses occurring from such depreciation. Denton v. Sanford, 103 N. Y., 607; 4 N. Y. State Rep., 281.
    I shall, therefore, relieve the executrices for the loss on this mortgage, but for the one on lot 6 they must be held responsible. This lot was not worth, at the prices even then prevailing, above $3,000 or $3,500. That being so, the two mortgages, $1,400 and $2,000, aggregated the full value of the lot
    This was not only lack of prudence but folly, to make a loan on a second mortgage under such circumstances.
    Let a decree be presented for signature and entered, adjusting and settling the accounts accordingly. Costs to both parties payable out of the estate to be taxed and inserted in the decree.

      A. & A. X. Fallon (Thaddeus D. Kenneson, of counsel), for app’lts; Abram A. Demarest, for resp’ts.
   Barnard, P. J.

—Isaac I. Blauvelt died in Rockland county in 1861, leaving a last will. The deceased left a widow and two daughters. By the will the widow was entitled to “ the use of all my real and personal estate,” with full power of sale of the real estate as to her shall seem just.”

After the widow’s death a life estate in one-half of the estate was given to each of the daughters, with" remainder to their children. The widow was one of the executors; she had no power to use any portion of the principal for her own purpose, but the entire estate was disposed of after her life estate ceased. The widow has sold certain of the testator’s lands, and claims to be entitled to hold the proceeds as her own. The surrogate properly disallowed this. The meaning and intent of the will is that the widow may sell the lands for the purposes of the will. She is to have the entire use of the proceeds, but the same must go to the daughters and their children, as provided for in the will. The construction claimed by the widow is inconsistent with the scope and intent of the will, and a gift of a life estate, with power of sale and remainder over after the life estate of all the testator’s property, is entirely consistent with the power of sale. Monarque v. Monarque, 80 N. Y., 320.

The proceeds of the land became personal estate when the land was sold and actually converted into money under this power, and the surrogate had jurisdiction to compel an aecount therefor. The appellants make no point as to the propriety of the decree holding the executors liable for imprudent loans.

The decree seems faultless in this respect. King v. Talbot, 40 N. Y., 76.

The decree should be affirmed, with costs.

"Oykman and Pratt, JJ., concur.


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    Bruce Van Tassell, Respt, v. The Manhattan Eye & Ear Hospital, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Negligence—Hospitals.
    Plaintiff was operated upon at the hospital of defendant, a charitable corporation, for a disease of the eye, and the doctor directed him to keep on the bandage all night, which he did, although it hurt him very much, and in the morning the sight was gone from the eye. Held,, that a case of negligence could not bé made out from this fact alone; that to render defendant liable it must appear that it did not give due care to the selection of its employes, surgeons and others.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying a motion for a new trial.

      Crosby & Crosby, for app’lt; David H. Hunt, for resp’t.
   Barnard, P. J.

—The defendant is a charitable corporation incorporated by the legislature under chap. 584, Laws of 1869, for the purpose of treating indigent persons suffering from diseases of the eye and ear. The proof shows that the corporation exercised due care in the selection of its physicians. The proof also shows that the operation was one to open the duct which leads from the eye to the nostril, and that it was skillfully done. The only neglect proven consisted in a direction to keep on a bandage over the eye all night after the operation, and in the morning to go to work as usual.

The bandage hurt the patient very much during the night. In the morning the sight was gone from the eye. The negligence consisted in the direction of the doctor in the hospital telling the patient to keep the bandage on all night Ho inference of negligence can be made from this testimony'. The direction to keep a bandage on the eye accords with the experience of all, and there is no reason why it should cause loss of sight The complaint states an unskillful operation ; and while the evidence is not returned, the charge of the judge takes it for granted from the evidence that the operation was well and skillfully done, but that the defendant owed a duty as to the future treatment of the injured part In other words, if the physician told the patient to keep a bandage over his eye all night, and if that, in the opinion of the jury, was not the proper direction, a case of negligence would be made out against the defendant; without other proof, we think no action is made out.

The defendant is not liable, except for the omission to give due care to the selection of its skilled employes, surgeons and others. McDonald v. Mass. General Hospital, 120 Mass., 432; Insurance Patrol v. Boyd, 120 Pa., 624.

The court of appeals of this state has not been called upon to adjudicate upon the question, so far as I can discover.

Mr. Justice Gilbert at circuit held the corporation not liable unless a bad selection of persons to act for the care of diseases was made by the corporation. Mr. Justice Lawrence has similarly held at circuit and at special term.

The judgment should be reversed and a new trial granted, costs to abide event

Pratt, J., concurs; Dykman, J., not sitting.


author: Pratt, J.

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    August C. Klupp, App’lt, v. The United Ice Lines, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Master and servant—Negligence.
    Plaintiff was engaged in building a tower for defendant’s runway under the direction of one M. or of V , a boss carpenter, and while engaged in fastening the bents, after they were, raised, an order was given to loosen a rope, and, upon its being done, the entire structure fell and injured the plaintiff. No evidence was given to show that defendant had knowledge of the defect, Held, that defendant was not liable, and that a nonsuit was proper.

      (Martin v. Cook, 37 N. Y. State Rep., 733, followed.)
    Appeal from judgment in favor of defendant, entered upon nonsuit.
    In the winter of 1890 the defendant was engaged in work about Lake Mahopac, in Putnam county, and among other things was erecting a tower for a runway, to carry ice from the lake to the railroad cars, for transportation to New York city. One Oscar Miersch was in charge of the work; although there is some evidence tending to prove that one Yredenbergb, a boss carpenter, was in charge of the erection of the tower. On the 1st day of February, 1890, the plaintiff, who was a carpenter, was engaged, with several other men, all under the direction of Miersch, or Yredenbergh, or both, in raising and fastening the two bents which constituted the frame work of this tower. These bents were about thirty feet high, when raised, and were lying, one upon the other, in a northerly and southerly direction. The south bent being uppermost, was first raised, by means of a derrick, with tackle' and block and a horse. Then the north one was raised with the tackle, without the use of a horse. When the south bent was raised, it was allowed to lean slightly to the north, and was held from falling in that direction by a guy rope, which ran from the top of the bent to a crowbar in the field near by, and was at the same time braced on the south side by two pieces of timber, bolted to the sides and pushed into the earth. When the north bent was raised, it was brought to a perpendicular, and for a time was held by the tackle rope. Plaintiff sought to brace it on the north, as the other one was on the south, but Miersch would not permit him to do so. Then plaintiff and another workman got upon a platform, made by laying planks across from the timbers on one bent to those on another, and commenced putting on cross pieces on the sides of the bents to hold them together. The ends of these cross pieces were fastened to the sides of the bents with half-inch bolts, only one bolt being in each end. After these were put on they attempted to put some cross pieces on the tops of the posts of the bents, thus uniting them at the top as well as the sides. The end of the post had a tenon upon it, and there was a mortise in each end of the cross piece, intended to fit this tenon. It was found that the mortise was too small, and the cross pieces could not be put on. At this time the tackle rope did not hold the north bent, although attached to it, but was found to be loose, the bents being probably supported by the guy rope attached to the crowbar. Some one below gave an order to loosen the ropa One of the men near the top of the tower loosened the tackle rope, and almost immediately the whole structure fell. This order came from either Miersch or Vredenbergh, both of whom were present, and was not objected to by either. When the structure had fallen it was found that the rope attached to the crowbar was untied. The plaintiff was caught in the falling timbers and permanently injured. Miersch was present during all of the time the work was being done, and so was Vredenbergh. The sill of one of the towers was rotten.
    At the close of the plaintiff’s testimony the court granted a motion for a nonsuit, which was made upon the grounds that no negligence of the defendant had been proved; that plaintiff’s negligence contributed to the injury, and that plaintiff took the risks of the employment.

      A. M. & G. Card (W. Farrington, of counsel), for app’lt; De Forest & Weeks (Geo. Holmes, of counsel), for resp’t.
   Pratt, J.

—In Martin v. Cook, 37 N. Y. State Rep., 733, it is held that if a servant is injured through an alleged defect or insufficiency in the implements or machinery furnished by the master, knowledge of such defect or insufficiency must be brought home to the master, or proof given that he was ignorant of the same through his own want of proper care, in order to render him liable. In the same case it is held that where a foreman directed an employe to perform an act which was not manifestly improper in itself, which the foreman had no reason to suspect, as far as the testimony shows, would result in an accident, and from which the employe himself evidently did not anticipate danger, that a prima facie case of negligence was not made out against the master merely by the happening of the accident.

We think these principles are decisive of the present case, and justify the dismissal of the complaint

Moreover, if there was any negligence it was that of a fellow servant, acting as a workman and not as a substitute for the master.

Judgment affirmed, with costs.

Barnard, P. J., concurs.


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    Ruama Clark, Adm’rx, Resp’t, v. Susan M. Corwin et al., Ex’rs, et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Costs—Decedent’s estates—Refusal to bbfeb.
    A claim upon a note was rejected by the executor on the ground that the note was a forgery, and upon a suggestion of a reference he replied that he could prove the forgery before any court or jury, and that it had better take the regular course in law. Held, a sufficient refusal to refer, and that the holder of the note upon recovering in an action brought against the executor upon said note was entitled to costs.
    Appeal from order allowing plaintiff to tax costs as in an ordinary action.
    The action is brought upon a note made by defendant Wheeler and James Corwin. After the death of said Corwin a claim upon said note was presented to defendant Moble, one of his executors, who rejected the same without any offer to refer. An offer was then made to him to compromise the claim, and a reference was suggested, to which he replied: “ That the signatures of Corwin to the note was a forgery, and he could establish it before any court or jury, and that if plaintiff insisted upon the payment of any portion of it, that it had better take the regular course in law ; that the estate was abundantly able to pay, and if beaten, could pay the whole as well as a part of said note.” The case has been twice tried, the plaintiff recovering in each instance.

      Gilbert O. Hulse, for app’lts; W. F. O'Neill, for resp’t.
   Dykman, J.

—This is an appeal from an order allowing the plaintiff to tax costs in this action against the executors.

The action was upon a promissory note, and the defense was that the name of James Corwin which appeared upon the note was a forgery. Corwin is dead and his executors were made defendants m the action with Wheeler, the other maker, who is alive.

The claim was presented to the counsel for the executors and rejected, and sufficient was stated by him at the time to constitute a refusal to refer.

It is unnecessary to determine whether the claim was unreasonably resisted as the refusal to refer was sufficient to justify the imposition of costs.

The order should, therefore, be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Philip Golberg, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term,Second Department,

      Filed July 2, 1891.)

    Railroads—Negligence—Injury to passenger.
    Plaintiff was a passenger on one of defendant’s trains, and upon its reaching his station he got out on the side opposite to the station and was struck and injured, before he could cross the track, by a train which came from the opposite direction and did not stop before passing the car he had been in. The evidence was conflicting as to whether he was warned not to get out on that side, and there was evidence that the rule requiring passengers to get off on the side next the station was not so observed but that it was a common occurence for them to get off on the other. It, also, appeared that the steam from the engine obscured the view in the direction from which the other train came. Sdd, that a verdict for the plaintiff was justified by the evidence.
    Appeal from judgment in favor of plaintiff, entered on the verdict of a jury, and from order denying motion for a new trial on the minutes.

      Frank Loomis (D. W. Tears, of counsel), for app’lt; Wm. Riley, for resp’t.
   Barnard, P. J.

—The plaintiff was injured by a train of defendant’s at Hastings, on the 12th of September, 1889. It was a contested fact upon the trial, whether or not the plaintiff was a passenger on the defendant’s road on the train from which he claimed to have alighted before the injury. The plaintiff testified positively that he was on the train, ana he was supported by a witness, Goodwin, and by Fromberg, a passenger, who saw the plaintiff get off at Hastings. The jury has found that the plaintiff was a passenger.. The train stopped at Hastings so that the engine and tender were north of a road-crossing going to the river. The smoking car was next to it, and the plaintiff was in the passenger car next to the smoking car. ' The station is on the east of the track, of which there are three at this point. The plaintiff wished to go to the river, and got out on the west side of the car. Before he got across the tracks between him and the river, he was struck by a train going south. There was proof given tending to show that the plaintiff was warned not to get off on the west side, and that he was warned of the approaching train which injured Mm. This was met by evidence tending to show the contrary; that no notice was given where to get off, and that the rule requiring passengers to get off on the side next to the station was not so observed but that it was a common occurrence for passengers to get off on the west side of the train at this point. There is no such preponderance of testimony as calls for a reversal of the verdict as against the evidence. There was proof given tending to show that steam escaping from the engine obstructed the passengers’ view of a train approaching from the north. The rule required a slow rate of speed, and this rule was not violated, but the negligence, if any, was made out by the entry of the train into a station at the rate of speed at which the south bound train did while passengers were getting off the cars, and did not stop before passing the car delivering passenger’s.

The recovery seems to be justified by the principle established in Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y., 355 ; 22 N. Y. State Rep., 697.

The facts are very similar in the two cases. The admission of the rule of the company regulating the running of trains under the circumstances presented by the evidence was properly received. The importance of the evidence was considered by the court of appeals in the Parsons case.

As bearing upon the defendant’s negligence evidence was given tending to show that the view north from the place where plaintiff stood was obstructed by steam. The judge in stating the obligation of the plaintiff to look for an approacning train was accompanied by a statement that the testimony was that there was escaping steam to obstruct the view.

The fact was not assumed by the judge. All questions of fact were carefully left to the jury. ¿

The judgment should, therefore, be affirmed, with costs.

• Dykman and Pratt, JJ., concur. 1