text:
    Sarah F. Galusha, Resp’t, v. Norman H. Galusha, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

      1. Divorce—Issue of adultery nr action for, triable by jury—Code Civ. Pro., § 1757.
    The complaint in an action for divorce alleged several specific acts of adultery by defendant, only two of which defendant by his answer denied. Held, that in divorce cases, if the answer puts in issue the allegation of adultery, the court must, upon application of either party, or it may on its own motion, direct the trial of that issue by -"ury, and that thereupon the questions to be tried must be prepared and settled. Code of Civ.l Procedure, § 1757.
    2. Same—Hay not be waived except as provided in Code Crv. Pro., § 1009.

      Held, That such right to jury trial could not be defeated without waiver of such trial as provided by Code Civ Pro., § 1009, or otherwise tried by consent.
    3. Same—Where several acts of adultery are alleged, some of WHICH ARE NOT DENIED—TRIAL AS TO THOSE NOT DENIED MAY BE BY COURT.
    Defendant's counsel having objected to the trial proceeding before a judge, and the objection having been overruled and the trial having so proceeded,_ resulting in a judgment against the defendant, Held, that the evidence given upon the trial relating merely to those charges not put in issue by the answer, and the findings of the court of the acts of adultery committed by defendant being those not thus put in issue, it might be assumed that the court overruled defendant’s objection and permitted the • trial to proceed, in view of such undenied allegations and for the purpose of taking evidence and determining as to those only, and that this relieved the case from the charge of mistrial.

      4. Alimony—Amount discretionary—How discretion limited—Code Crv Pro., § 1759.
    The trial court having found that defendant was worth in "personal and real estate, over and above his debts, at least $150,000, from which he receives an annual income of at least $7,500,” and determined that there be paid to the plaintiff “as permanent alimony during the term of her life the sum of $3,750 yearly in quarterly payments,” to be secured by a mortgage on defendant’s real estate, and that either party may apply to the court to change the award of alimony in cases of change of circumstances or for other good reason. Meld, that the deteimination of the amount of alimony to be allowed in such cases is largely within the discretion of the court, yet it must be a judicial discretion within the meaning of the statute, which provides that the court may in the final judgment require defendant to-provide suitably “for the support of the plaintiff as justice requires, having regard to the' circumstances of the respective parties.” Code Civ. l'ro., § 1759.
    5. Same—Extent op husband’s means important element in measurement OE AMOUNT OP PERMANENT ALIMONY.

      Held, That the extent of the means of the husband in such cases is treated as an important element in the measurement of the amount of the means that should be awarded as permanent alimony, which is not confined to what may he seen to he actually necessary for the support and comfortable maintenance of the plaintiff.
    6. Rates op interest—Judicial notice taken op current rates.

      Held, That while it might be assumed, when nothing appeared to the, contrary, that the productive character of a person’s property is reasonable, and the results derived from it usual, there was a common knowledge, of which judicial notice might he taken, of current rates of income from capital not invested in speculative enterprises.
    7. Separation — Articles op — Rot annulled by simple decree op divorce—Allowance in is annulled by award op alimony.

      Held, That articles of separation providing for an allowance to the wife for purposes therein named, and a regular income for her support, formed no bar to an action for a divorce by the wife, hut might he considered upon the question of alimony. That though a judgment for divorce simply would not have the effect to annul the agreement, yet the allowance of alimony by the judgment had that effect.
    •8. Same — Installments due apter dependant's death — Court may secure payment op by measures taken in his lifetime.

      Held, That it was not necessary to pass upon the power of the court to decree the payment of alimony to plaintiff should she survive defendant, inasmuch as it was within its power to direct that to be done during defendant’s lifetime, which may result in effectual provision for such payments.
    Appeal by the defendant from judgment entered on decision of Monroe special term, granting to the plaintiff an absolute divorce and awarding to her permanent alimony1 of $3,750 annually during her life.

      Wm. H. Bowman, for app’lt; J. A. Stull, for resp’t.
   Bradley, J.

When the trial of the action was moved at special term, the defendant’s counsel claimed for his client the right of trial by jury, and objected to its proceeding before the court without a jury. The objection was overruled and exception taken.

The statutory rule in divorce cases is that if the answer puts in issue the allegation of adultery the court must, upon application of either party, or it may, on its own motion, direct the trial of that issue by jury, and thereupon the questions to be tried must be prepared and settled. Code Civ. Pro., § 1757. No such application was made, and no issues had been settled for trial by the jury. And although an action for divorce is in equity, the right to trial by jury of issues upon the allegations of adultery exists in such cases and cannot be defeated without waiver of such trial as provided by statute (id., § 1009) or otherwise tried by consent. This was a right existing at the time of the adoption of the constitution of 1846 (2 R S., 145, § 40; 2 Edm. Stat., 150, § 40), and, therefore, comes within the provision of the Const., art. 1, § 2; Batzel v. Batzel, 10 J., & S., 561; S. C., 54 How., 139. Here was no waiver. This right of trial by jury had relation only to the issues taken by the answer upon allegations of adultery. The complaint alleges several specific acts of adultery by the defendant. The defendant, by his answer, denies only two of them. The trial proceeded and the evidence given related to the charges in that respect not put in issue by the answer. And the findings by the court of the acts of adultery committed by the defendant were those alleged and not denied in the pleadings.

It may be assumed that the court overruled the defendant’s objection and permitted the trial to proceed, in view of the undenied allegations of the complaint, and for the purpose of taking the evidence and making determination in relation only to the charges in that respect not denied by the answer. That situation relieves the case from the charge of mistrial. The evidence is abundantly sufficient to support the conclusions of the court upon the main question and the direction of judgment for the divorce. The further inquiry has relation to the allowance of alimony awarded by the judgment. The court found that the defendant was worth in “personal and real estate, over and above his debts, at least $150,000, from which he receives an annual' income of at least $7,500,” and determined that there be paid to the plaintiff “as permanent alimony during the term of her fife the sum of $3,750 yearly, in quarterly payments.” to be secured by mortgage on the real estate of the defendant, and that either party may apply to the court to change the award of alimony, in case of change of circumstances or for other good reason. Judgment was entered accordingly.

It is contended, first, that this allowance of alimony is excessive; and, second, that the direction of its payment during the life of the plaintiff is error.

The determination of the amount of alimony to be allowed in such cases is largely within the discretion of the court, yet it must be a judicial discretion within the meaning of the statute, which provides that the court may in the final judgment require the defendant to provide suitably “for the support of the plaintiff as justice requires, having regard to the circumstances of the respective parties.” Code Civ. Pro., § 1759. This does not differ from 2 Revised Statutes, 145, section 45. While this is not a matter of division or apportionment of the property of the defendant, or of his income, but is a question of suitable support of the plaintiff, the extent of the means of the husband in such cases is treated as an important element m the measurement of the amount of the means that should be awarded as permanent alimony, which is not confined to what may be established or seem to be actually necessary for the support and comfortable maintenance of the plaintiff. Forrest v. Forrest, 8 Bosw., 640; affirmed 25 N. Y., 501; Burr v. Burr, 10 Paige, 20; affirmed 7 Hill, 207.

The conclusion that the defendant was worth the sum of $150,000 was justified by the evidence. The situation and productive character of his property does not very clearly appear.. And the question of income from it is one largely of inference. The purpose of the court appears to. have been to give to the plaintiff an amount equal to one-half of such income. And while it may be assumed, when nothing appears to the contrary, that the productive character of property óf a person is reasonable, and the results derived from it usual, there is a common knowledge of which judicial notice may be taken of current rates of income of capital not invested in speculative enterprises. Without the aid of well guided business ability, available capital cannot be said to demand a net income of five per cent. And we are not assured by any evidence in this case, or by that observation which is common to all, that four per cent, and even léss, is not a fair, clear income of an estate equal in amount to that of the defendant. The contingencies attending investments, and the taxes. and insurance, are essential items in the account with invested capital. We think the estimated income as found by the court of the amount upon which it was based was higher than the evidence fairly justified, and that it should not be estimated to exceed four per cent.

The defendant alleged and proved an agreement known as articles of separation, made between the plaintiff and his wife through the intervention of a trustee for the latter, April 30, 1883, by which he agreed to give absolutely $5,000, with which to purchase for her a house and lot; $1,000 to pay for medical attendance which she might require, also a horse, phaeton, harness, sleigh and robes, and some household furniture, and to pay her $1,200 annually, in monthly payments, which she agreed to accept, and her trustee agreed that she would receive in full payment and satisfaction for her maintenance and support during her natural life. This instrument contained the provisions usual in articles of separation, amongst which was the agreement that they should permit each other to live separate and apart from each other, and. that neither should in any way molest or interfere with the other.

The defendant paid the $5,000, delivered the property, and paid $100 each month up to nearly the time of the commencement of this action, which was in April, 1885. Those articles of separation constituted no bar to the action (Anderson v. Anderson, 1 Edw., 380), but they properly may have been considered upon the question of alimony.

Assuming that this agreement was, voluntarily and deliberately made by the wife, with full understanding of her wants and reasonable requirements for her support and comfort in view of her social relations and situation in life, this agreeement, so far as related to its provision for her support and maintenance was pertinently before the court, on the question of permanent alii mny. It sufficiently appears that it was made for reasons and under circumstances which would render performance by the defendant enforceable. And a judgment for divorce simply would not have the effect to annul it. Carpenter v. Osborn, 102 N. Y., 552. But the view of the court evidently, and we think correctly, was that the alimony given by the judgment had the effect to defeat the operation of the agreement and put an end to it. The holding in the case last cited that the separation agreement remained effectual after the judgment in divorce, rested on the fact that no payment of alimony was directed by the judgment, yet-it is not deemed improper to have the judgment in this action declare the effect intended upon the agreement in question. The equivalent of a certain ratio of income has been sometimes adopted by the courts as a measure of alimony, which is not properly done merely because it is such, but for the reason that it represents fairly the suitable means for support in view of the situation of the parties. In this instance the court has deemed one-half the income upon the estimated value of the defendant’s property the proper sum. We think that ratio is represented more accurately by the sum of $3,000, and that such is a reasonable and adequate amount annually for permanent alimony. The defendant had already provided the means for her to purchase a house, as a place of residence, and provided her her with some furniture. This amount is two and a half times that provided by the agreement expressing the terms which she was apparently willing to accept as a complete provision for her support while living separate from Mm. The circumstances which may have governed her action in making the agreement should not necessarily govern that of the court in awarding the allowance. The amount necessary for her support may be much less than that suitable as a provision for her proper maintenance, and when the means of the husband fairly permit it should be liberal and such as not to subject the wife to the hazard of future want, or make support dependent to any extent upon the uncertainty of her ability to perform service and thus to supply in some degree her wants.

It may not be usual for the court to direct by judgment the payment of alimony beyond the period of the joint lives of the parties. Our attention has been called to only one reported case where it was done. This was held in Burr v. Burr (10 Paige, 20; affirmed, 7 Hill, 207), and that was a case for a limited divorce where a decree of separation only was granted.

In such case the reason for limiting the allowance to the period of the husband’s life is greater than when a divorce a vinculo is adjudged, because in the former she continued his wife and on surviving him has the proprietary rights of widow, while in the latter she has only the right of dower in the real estate, of which he was seized during the coverture, and in which she has an inchoate right of dower at the time of the rendition of the judgment dissolving the marriage. In re Ensign, 37 Hun, 152; affirmed, 3 N. Y. St. Rep., 74.

This question arose in Field v. Field (66 How., 346), and the decision was affirmed by the general term in the fifst department (15 Abb. N. C., 434), where it was held that the obligation to pay alimony is a personal one, dependent upon the husband’s means during his life; and that it is not in the power of the court to thus incumber his estate after his death. And that the direction of a judgment to pay during the life of the wife was after the husband’s death, ineffectual for any purpose.

The court there say of Burr v. Burr, that this question “was not presented upon a contest to the court.” The question seems to have been distinctly raised and passed upon in the Burr Case, as appears by the remark of the chancellor that “ the objection that the vice-chancellor was not authorized to decree a provision beyond the life of the husband, is clearly untenable.” And he then proceeds to give his reasons for the position (10 Paige, 37). It may be' observed that at common law there is no power in the courts over the subject of divorce and alimony as such.

In most of the states judicial power has been by their constitutions denied to the legislature, and power to grant divorce and alimony has been vested in the courts. The jurisdiction and power of the courts in such cases are whoEy statutory. Burtis v. Burtis, Hopkins 557; Peugnet v. Phelps, 48 Barb., 566. And it is upon the statute that this question must be determined. This permits the court in the final judgment dissolving the marriage to “require the defendant to provide * * * for the support of the plaintiff. ” The language is broad enough to embrace a provision for her during her life, and to require him to make such provision, although she may survive him. But the requirement can operate on him during his life only.

The authorized judgment in that respect is by the terms of the statute to operate on the defendant rather than on his property, and the provision to be made by him by force of the judgment and through the power of the court to compel its execution. It is, therefore, not entirely apparent how a judgment alone and as such may be effectual in respect to installments of alimony which may accrue after the death of a defendant. The direction furnished by the judgment that he give security, may by its execution become effectual as a provision made by him to continue during her life. The statute under which the provision was made by the decree in Burr v. Burr was somewhat different in phraseology from that under consideration. It provided that the court might malee a decree for the suitble support and maintenance of the wife by the husband “or out of Ms property as may appear just and proper.” 2R. S., 147, §54. Whether this difference in the statutes is substantial is not important here. Nor is it necessary to consider the legal effect the judgment may have after the death of the defendant as to payments which it directs to be made to the plaintiff during the time that she may survive him, inasmuch as it is deemed within the power of the court to direct that to be done in the life-time of the defendant, which may result in effectual provision for such payments.

The right reserved by the judgment to the parties of application to the court for modification of the provisions in question, furnishes ample opportunity for protection of the rights of the respective parties during life, and to relieve the estate of the defendant after his death from any undue increase of amount arising from her right of dower. No other question seems to require consideration.

The judgment should be so modified as to reduce the annual amount of alimony to $3,000, and the quarterly payments proportionately, and by the insertion of a provivision declaring the termination of the force and legal effect of the separation agreement of date April 30, 1883, and as so modified affirmed.

Haight, J., concurs.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    James J. W. Dawley, App’lt, v. John P. Brown, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25,1887.)
    1. Ejectment—Advebse possession—Deed op pbemises held advebsely is void—1 R. S„ 739, § 147.
    In an action of ejectment the court found as facts that plaintiff, on March 15, 1857, was owner in fee of the farm in question, and on that day he and his wife conveyed the same to one L. C., since deceased. Plaintiff being at that time indebted to one H. J., a judgment was subsequently obtained by J. upon his debt, and December 8, 1852, J. brought an action in the supreme court to set aside the conveyance to L. C. upon the ground that it was made without consideration and with the intent to defraud creditors of plaintiff; that such proceedings were had in that action; that May 18, 1858, judgment was obtained in favor of J., adjudging the conveyance fraudulent and void, and directing that the premises be sold at public auction by C. H., to whom it was referred to make such sale; that in pu suance of the judgment H. advertised and sold the premises to J, plaintiff in that action, and, as such, referee executed and delivered to him a deed; that H. made his report of sale as required by the court; that subsequently about April 1, 1861, possession of the premises was delivered to J., who entered into posses-ion under the deed from H., and on or about April 15, J. sold and conveyed the premises to one D. S., who subsequently conveyed to this defendant, who entered into possession thereof, and has since held and continued in possession, claiming title thereto, except as hereinafter stated; that after the death of H. J., and in March, 1869, plaintiff commenced an action in the supreme court, in which R. L. R., executor of J.’s will, A. A., as sole devisee in his will, the said L. C., this defendant and others were made defendants; the relief demanded was, among other things, to set aside the deed from H to J, and the subsequent conveyances of the land in question; that R and M appeared in that action, but B. did not; before the time for B and F to answer had expired plaintiff’s attorney obtained an ex parte order discontinuing the action as to all defendants except B and F, who were then in possession of the premises embraced in the deed from H, and directing that the complaint be further amended so as to demand possession of the premises without mesne profits, and that plaintiff should have judgment that he was owmer in fee of the premises, and for the recovery thereof, with costs. Judgment by default was entered against F and B on the amended complaint, and July 7, 1869, a deputy sheriff with an execution on the judgment called upon B and F. Being informed that possession of the premises was required, they each signed a memorandum, agreeing to pay plaintiff for the right to continue pasturing cattle on the premises occupied by them; that thereafter, and on July 26, 1869, an order was made vacating and setting aside the judgment as irregular, with costs, restoring possession of the premises to F and B; that in March, 1869, and before the commencement of that action, L C had conveyed his interest in the land to plaintiff; and again, on July 17, 1869, he again convej'ed the same lands to plaintiff by a quit claim deed; and subsequently this action was brought. The trial court decided that the pendency of the former action was a bar to this. This action w-as previously tried, and complaint dismissed for that reason, and the decision affirmed by the general term, but reversed by the court of appeals. Now it is contended that new facts are disclosed; that 0 had conveyed to plaintiff during March, 1869, and prior to the commencement of the former action. This is based upon an allegation in plaintiff’s complaint in the former action. This complaint was part of the judgment-roll in that action, and part of the record before the court of appeals, so that there has been no change of facts. Eeld, that it appearing that B entered into possession immediately after the conveyance to him, and that he had continued in possession ever since, until he attorned to plaintiff under the judgment taken by default, it consequently appeared that at the time C reconveyed to plaintiff in March, 1869, defendant w»as in possession of the premises, holding them adversely, claiming title thereto, and that the deed delivered was void. 1 R. S., 739, §147.
    2. Same—Deed—Power to make not lost by previous attempt when NO POWER TO MAKE A VALID DEED EXISTED.

      Held, that the fact that 0 had executed and delivered a void deed did not divest him of title so that he could not execute and deliver to the plaintiff a valid deed when he was in condition to do so.
    3. Same—Code Crv. Pro., § 1501, provides a remedy—Does not change rule oe 1 R. S., 739, § 147.

      Held,, that Code Civ. Pro., § 1501, only provides a remedy; it does not make the deed valid or change the statute in that regard. The former action could not be maintained in the name of plaintiff, so that it followed that the deed of July 17, 1869, presented a new claim of title which plaintiff had the right to have considered by the court, and that it was not barred by the former action.
    Appeal from a judgment dismissing the complaint entered upon the decision of .the court, on a trial without a jury at the Monroe circuit.

      J. & L. Voorhis, for app’lt; JS. G. Lapham, for resp’t.
   Haight, J.

This is an action of ejectment to recover land situated partly in Menden, Monroe county and partly in West Bloomfield, Ontario county.

The court in substance has found as facts, that the plaintiff on the 15th day of March, 1857, was the owner in fee of the farm in question,"and on that day he and his wife conveyed the same to one Loren Culver, since deceased. The plaintiff at the time being indebted to one Hiram Johnson, Johnson subsequently obtained judgment upon his indebtedness, and on the 8th of December, 1858, commenced an action in the supreme court to set aside the conveyance to Culver upon the ground that it was made without consideration and with the intent to defraud the creditors of the plaintiff ; that such proceedings were had in that action that on the 18th of May, 1858, judgment was obtained in favor of Johnson, adjudging the conveyance fraudulent and void, and directing that the premises be sold at public auction in the county of Monroe by Calvin Hewson, Esq., to whom it was referred to make such sale; that in pursuance of the judgment Hewson advertised and sold the premises to Johnson, the plaintiff in that action, and as such referee executed and delivered to him a deed; that Hewson made his report of sale as required by the court; that subsequently and about April 1st, 1861, possession of the premises was delivered to Johnson, who entered into possession under the deed from Hewson, and on or about the fifteenth day of April thereafter Johnson sold and conveyed the premises to one Daniel Sage, who subsequently conveyed to the defendant in this action, who entered into possession thereof and who has since held and continued in possession, claiming title thereto except. as hereinafter stated ; that after the death of Hiram Johnson and in the month of March, 1869, the plaintiff commenced an action in the supreme court, in which Robert L. Rose, the executor of the last will and testament of Johnson, Abbey A. Mather, the sole devisee in his will, the said Loren Culver, the defendant in this action and several others, were made defendants; the relief demanded in the complaint was among other things to set aside the deed from Hewson to Johnson and the subsequent conveyances of the land in question; that Rose and Mather appeared in that action, but Brown did not. Before the time for Rose and Mather to answer had expired, the plaintiffs attorney obtained an ex parte order discontinuing the action as to all the defendants except Brown and Fox, who were then in possession of the premises embraced in the Hewson deed and directing that the complaint be further amended so as to demand possession of the premises without mesne profits, and that the plaintiff should have judgment, that he was the owner in fee of the premises and for the recovery thereof, together with the costs of the action. Judgment by default against Fox and Brown was entered upon the complaint so amended, and on the seventh of July thereafter the deputy sheriff of Monroe county with an execution upon the judgment called upon Brown and Fox and informed them that judgment had been taken by default and that they would have to be turned out of the possession of the premises ; thereupon they each signed a memorandum in pencil, agreeing to pay the plaintiff compensation for the right to continue to pasture their cattle on the premises occupied by them respectively ; that thereafter 'and on the 26th of July, 1869, an order was made vacating and setting aside the judgment as irregular with costs, restoring the possession of the premises to Fox and Brown; that in March, 1869, and before the commencement of that action Loren Culver had conveyed his interest in the land to the plaintiff; and again on the 17th of July, 1869, he again conveyed the same lands to the plaintiff by a quit claim deed; and subsequently this action was brought.

As a conclusion of law the court held and decided that the pendency of the former action is a bar to this action. The plaintiff filed exceptions to the conclusions of law.

This action was previously tried and the complaint dismissed for the same reason. The same was affirmed in the general term (9 Hun, 461), but was reversed in the court of appeals (79 N. Y., 390), in which it was held that the former action was not a bar. It is now contended, however, that new facts are disclosed; that it has now been found that Culver had conveyed to the plaintiff, during the month of March, 1869, and prior to the commencement of the "former action. This finding is based upon an allegation of the plaintiff’s complaint in the former action. The complaint is a part of the judgment roll in that action, and was a part of the record before the court of appeals, and was alluded to by the judge delivering the opinion of the court. So that there has in reality been no change in the facts. But suppose this fact to "be new, and now presented for the first time. It appears from the finding of the trial court that Brown entered into possession of the premises immediately after the conveyance to him and has ever since continued in possession, until he attorned to the plaintiff under the judgment that was taken by default. It consequently appears that at the time Culver reconveyed to the plaintiff, in March, 1869, the defendant was in possession of the premises, holding them adversely, claiming title thereto, and that the deed delivered under such circumstances was void under the statute. 1 B. S., 739, § 147. The fact that Culver had executed and delivered a void deed did not divest him of title so that he could not execute and deliver to the plaintiff a valid deed when he was in condition to do so. The provisions of section 1501 of the Code only provide a remedy; it does not make the deed or change the statute in this regard. The former action could not be maintained in the name of the plaintiff, it consequently follows that the deed of July 17, 1869, presents a new claim of -title which the plaintiff has the right to have considered by the court, and that under the decision of the court of appeals it is not barred by the former action.

It is now contended that the judgment of July, 1869, was fraudulently entered to lay the foundation for getting a second deed from Culver, but the trial court has not found fraud in this regard, and we consequently do not regard the question as before us for consideration.

It is further contended that even though the former action was not a bar that the defendant has shown good title. The defect relied upon by the plaintiff in the defendant’s title is that Hewson, as referee, had no power to convey the lands in question to Johnson; that neither Culver nor the plaintiff joined with him in the deed. This case was first tried before the Hon. Addison Gardner, as referee, who considered this question and reached the conclusion that the referee’s deed was void and conveyed no title.

This same question was reviewed by this court on appeal, (65 Barb., 107), and the same conclusion was reached in an elaborate opinion by the presiding justice, in which all of his associates concurred. The decision was based upon the decision in The Chautauqua County Bank v. White (2 Seld., 236), Same v. Risley (19 N. Y., 369), Walker v. White (36 Barb., 592). The more recent cases of Erickson v. Quinn (15 Abb. [N. S.], 166), and White’s Bank of Buffalo v. Farthing (101 N. Y., 344), do not tend to change but rather to approve of the rule promulgated in those cases.

We consequently see no reason for interfering with the former decision of this court made upon this question.

It follows that the judgment should be reversed and a new trial order, with costs to abide event.

So ordered.

Bradley, J., concurs.


author: Bradley, J.

text:
    John A. Dutton, as assignee, etc., of Walter M. Harris, App’lt, v. The Gale Manufacturing Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    Contract—Continuance of relations created by, beyond period THEREIN FIXED—WHEN PRESUMED.
    This action is for alleged conversion of plows, etc., to which plaintiff claims title as assignee for the benefit of the creditors of one H. In February, 1883, "defendant made a written contract with H. to furnish him plows, etc., etc., at prices agreed to be paid by him; for a portion of which he should give defendant his note, the title to the property to remain in defendant until paid for, and the contract not to be binding and in force longer than January 1," 1884. Under this contract goods were furnished H. in 18tí3, and without further contract defendant furnished him goods in 1884, upon his order, and H. in like manner gave defendant his notes, some of which remained unpaid when he made his general assignment to plaintiff. The property for which they were given was included in his schedule of property filed. Defendant thereafter took possession of it, and on refusal to redeliver it to the plaintiff, this action was brought. Held, that the terms of the contract of 1883 not being such as to preclude the presumption that they intended to continue upon the same terms as those they had initiated by their wiitten contract, the presumption was that they did so proceed after the expiration of the period defined by it for its operation, until something appeared to the contrary: that, consequently, the title to the articles sold in in 1884 remained in defendant.
    Appeal by the plaintiff from judgment entered on report of referee. The action is for alleged conversion by the defendant of plows, castings, etc., to which the plaintiff claims title as assignee for the benefit of the creditors of one Harris.
    It appears that in February, 1883, the defendant made a contract in writing with Harris, to furnish him plows, and some other things, to be used in connection with them, at stipulated prices "to be paid by him; for a portion of which, he should give the defendant his notes. And the title to property to remain in the defendant until paid for. And “the contract not to be binding and in force longer than January 1,1884. Under this contract goods were furnished to Harris, in 1883. And in 1884, the defendant furnished to him goods upon his order, without any further,agreement made between them; and Harris in like manner gave the defendant his notes. Some of the notes made by Harris, in 1884, for goods furnished Mm that year remained unpaid when he made Ms general assignment for the benefit of Ms creditors to the plaintiff, on April 10, 1885. The property in question was included in Ms schedule filed of property assigned. And the defendant thereafter took the possession of it, and on refusal to redeliver it to the plaintiff, this action was brought.
    The referee found and determined that the defendant had title to all the property, except three plows furnished to Harris, in 1883, which had been paid for, of the value of $26.85, and directed judgment for the defendant for costs, less that amount to be deducted from them.
    The plaintiff appealed.

      A. P. Rich, for appl’t; J. S. Qarlock and W, H. Beach, for resp’t.
   Bradley, J.

The main question is whether the terms of the contract made between Harris and the defendant, of February 10, 1883, were applicable to the transactions between them, after the expiration of the term expressed in it, so as to govern their rights of property in the goods, in question, which were furnished and delivered by the defendant to him in 1884, and not paid for. The contention on the part of the plaintiff is, that by its terms the written contract ceased to be operative' on the first of January, 1884, and that its provisions could not be continued beyond that prescribed period without an express agreement or understanding to that effect, and that when goods were thereafter furmshed and delivered by the defendant to Harris, upon his order without qualification, and his notes taken for them, the title passed to him which was taken by his assignee.

The property was furmshed to and obtained by Harris to sell within certain limits prescribed by the contract, within which his right to sell was granted by the defendant. And if it may be assumed that the right of Harris to sell the plows depended upon the grant in the contract referred to, Ms sales in 1884, were without right, unless afforded by the continuance of such grant. It does not appear that further arrangement was expressly made between the parties to it, or that he sought to sell in any other than the prescribed territory.

A relation with a view to the supply on certain terms of property, by one party for the purpose of sale by another was formed by their contract for a limited period only, and notwithstanding its expiration they continued to proceed in like manner and apparently with a view to the same purpose. The question arises whether there is opportunity to infer any intention common to the parties, or whether there is any implied understanding which the the law will apply in such a case.

, The terms of the contract of 1883, are not such as to preclude the presumption'that they intended to continue upon the same terms as those they had initiated by their written contract. And the implication or presumption is, that they did so proceed after the expiration of the period defined by it for its operation, until something appears to the contrary. Vail v. Jersey L. F. M. Co., 32 Barb., 564; Huntington v. Claflin, 38 N. Y., 182 ; Ross v. Hardin, 79 id., 84; Wallace v. Floyd, 29 Penn. St., 184 ; Rauck v. Albright, 36 id., 361.

The evidence permitted the inference to that effect and fairly supported the conclusion of the referee in that respect, that-the terms of'the contract of February, 1883, between the defendant and Harris, were carried into their transactions of 1884. And that their rights must be determined accordingly. This view requires the conclusion that the title to that portion of the plows, etc., in question, delivered in 1884, was in the defendant, and substantially disposes of all the exceptions taken upon the trial, and to-the conclusions of the referee, and to his refusals to find.

The judgment should be affirmed.

Haight and Angle, JJ., concur/


author: Barker, J.

text:
    Mary Leinen, Resp’t, v. John J. Elter, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    Practice—Partition of lands—Taxes are a general men—Parties HAVING GENERAL LIENS MUST BE MADE PARTIES IN ORDER TO HAVE THEIR LIENS PASSED UPON—CODE ClV. PRO., §§ 1538, 1578.
    The action was for the partition of lands owned hy the parties as tenants in common. And part of the land was in the city of Rochester, which was ordered sold, and a certain part of the proceeds thereof were held by order of the court to pay certain tax liens levied by the city, which liens consisted of certain certificates given by the city to certain parties on the sale of the lands for taxes and certain unpaid assessments for local improvements. Neither the city of Rochester nor the holders of the tax certificates were made parlies to the suit, but after the land was sold and the report of sale was confirmed, it was referred to a referee to take proof of the several claims, taxes and liens against the lands and proceeds of sale by reason of said tax certificates, and the plaintiff was required to give eight days’ notice to the city of Rochester and the purchasers of said certificates of such reference. The report of the referee on such reference found the taxes illegal and void, and thereupon the court ordered the final judgment in the partition suit amended so as to direct the distribution of the part of the proceeds held to pay taxes, etc. Held, that the taxes being general liens or incumbrances, if valid, the question of their invalidity could not be litigated between the owner of the premises and the city in the partition suit without making the latter a party thereto. See Code Civ. Pro., §§ 1538, 1578. That the order should be reversed because the special term lacked jurisdiction.
    Appeal from an order entered at special term, amending the final judgment in a partition suit and enjoining the city of Rochester from making, executing or delivering to certain persons any deed in pursuance of certain tax sales.
    This action was for the partition of-lands owned by the parties as tenants in common, part of which were located within the city of Rochester. By the interlocutory judgment the city lots were ordered to be sold and were sold, and the proceeds brought into court and distributed among the parties, except the sum of $1,800 which was held by the order of the court for future distribution among the parties, if the same was not needed, or some part thereof, to pay the tax liens levied on the lots by the city of Rochester. A general tax had been levied upon the property, and an assessment for local improvements had been made, which in the aggregate amounted to the sum of about $1,400. The premises had been sold for the general tax, and bid in, at one of the sales by Mrs. 0. 0. Seymour, who received a certificate of sale, and at the other sale, W. W. Chapin was the purchaser, who also received a like certificate. Mrs. Seymour paid to the city treasurer the sum of $482.62, the full amount of her bid. Mr. Chapin paid on his bid $229.48. The assessments for local improvements were unpaid at the time of the sale of the lots under the decree in the partition .suit, and the city gave out and claimed that the taxes were all valid and were enforceable in the mode and manner pointed out by the city charter. By the city charter taxes properly assessed are a lien upon the premises, and collection may be enforced by a sale of the same. Neither the city of Rochester or its treasurer were made parties to the action.
    After the interlocutory decree was entered in the partition suit, and after the premises were sold thereon and the report confirmed, it was referred to a referee to take proof of the several claims, taxes and liens against the lands, and proceeds of sale, by reason of said tax certificates, so held by the purchasers, and to report the same with his opinion thereon to the court, and the plaintiff's attorney was required to give eight days’ notice to the said purchasers on such reference, and to the city of Rochester and the treasurer of Monroe county. The parties appeared before the referee and proofs were taken as to the mode and manner of making the several assessments, and as to all proceedings connected with the sale, which were reported to the court together with the referee’s opinion. By his report he found that all the taxes were illegal and void, and thereupon, on notice to the city of Rochester and its treasurer, the court made an order-amending tire final judgment of distribution and directing the payment of the said sum of $1,800 to the parties, and declared, that all the taxes were null and void and the same were vacated and set aside, and the city of Rochester was permanently enjoined and restrained from making, executing or delivering to either Seymour or Chapin any deed in pursuance of the said. sale.
    From that order the city of Rochester and its treasurer has taken an appeal.

      J. Van Powers, for appl’t; William H. Olmstead, for plff’s., in partition suit; William H. Shuart, for def’ts.
   Barker, J.

The appellants contend that the order appealed from should be reversed for the reason that the special term did not acquire jurisdiction over the subject-matter of the controversy. The question may very properly be first considered.

I am of the opinion that the appellants’ position is entirely correct, and that so much of the order as is appealed from should be reversed without considering the validity of the taxes assessed upon the property and claimed by the appellants to be a valid lien thereon. The premises were assessed as an entire parcel, and the taxes levied thereon, if valid, became a lien upon the whole thereof, and were not limited to the respective share or interest of either of the several owners.

If the taxes in dispute are valid, then they are a general lien or incumbrance on the whole of the premises. This is not disputed by the respondents, the parties to the partition suit, and the proceedings under review were instituted by them to relieve the fund from all claims for taxes and assessments set up by the appellants and mentioned in the order. The taxes being general liens or incumbrances, if valid, the question of their invalidity could not be litigated between the owner of the premises and city of Rochester without making the latter parties in the partition suit thereto.

The lien and incumbrance, if valid and not paid, may, by appropriate subsequent proceedings instituted by the city, ripen into an ownership of the land or a right of possession and use thereof for a long period of years under the provisions of the city charter authorizing a sale of lands for unpaid taxes. The city may become the purchaser on such sale, and possesses the power to transfer a certificate of sale, or seH the premises, if no redemption is made by the owners. If the owners of the premises desired to question the validity of the taxes and have the sale declared void in the partition suit, they should have made the city of " Rochester a defendant therein.

The statutes regulating partition of lands contain an express provision on the subject,- which has not been observed in the partition proceedings, and the omission to do so is fatal to the validity of the order. By section 1538 of the Code of Civil Procedure, it is declared who must be hiade parties in an action for the partition of land, and persons having liens and incumbrances thereon are not included in such requirement. In the next section it is stated who may be made defendants and the provision includes all persons who may have a hen or interest on the entire property. If they are made parties then the final judgment must award to the party holding the lien his entire right and interest in the property or the proceeds thereof, or the court may reserve or leave unaffected his entire right and interest, or any portion thereof. The section then concludes with a broad qualification intended as a fuh protection to the parties in interest, and is expressed in the following language : “A person specified in this section, who is not made a party, is not affected by the judgment in the action.” In subsequent sections provision is made relative to making persons party defendants who may have hens and incumbrances on an undivided share or interest in the property, and for the ascertainment of the hens of creditors upon the several shares of the several owners. Secs. 1540,1557,1561,1573. In another section, 1557, the effect of final judgment in a partition suit is declared, and it is therein expressly stated, that a final judgment shah not affect the rights and interests of persous as reserved in section 1539. By chapter 393 of the Laws of 1883, section 1578, is amended, and it is there provided that a party having any specific hen upon an undivided share or interest at the time of the filing of the notice of the pend-ency of the action shah not be affected by the judgment unless he is also made a party thereto. Prior to the revised statutes, an incumbrancer upon an undivided share of an estate was not a proper party to a suit for the partition of the whole property. His interests were not affected by the partition.

The hen attached to the divided share in case of actual partition, and in case of sale the purchaser took the land subject to the incumbrance. Under the Revised Statutes creditors having specific hens upon an undivided share of the premises sought to be partitioned could be made parties to the proceedings, and persons holding general hens or incumbrances might be brought in by notice so as to bind them by the sale. 2 R. S., 318, §§ 10, 42, 43-62; Harwood v. Kirby, 1 Paige, 470; Halsted v. Halsted, 55 N. Y., 442.

In that way the purchaser acquired a perfect title and a hen upon the fund derived from a sale was substituted for a lien upon the land. The rule as established by the Revised Statutes enlarging the power of the court in partition cases so as to displace hens upon the property and transferring the same to the fund, has been preserved by the provisions of the Code of Civil Procedure. But general hens upon the entire property, or general or special hens upon individual shares existing at the time o£ the filing of the notice of the pendency of the suit, cannot be affected by the final judgment, unless the parties having the liens are made defendants, thus securing to the leinors their day in court so they may protect their interests.

I am unable to find any case where it has been, held that a general hen on the whole property paramount to the rights of the tenants in common, can be cut off or affected unless the person having the lien is made a party. It seems certain that the legislature intended that persons setting up adverse liens may be made parties defendant in a partition suit, at the election of the moving party, and their validity subjugated therein. Section 1539. But as doubts have been entez’tained upozz that question by the higher courts, we do not express any opiniozz upon the subject, as it is uzmecessary for us to do so izi disposing of the pending appeal. Barnard v. Onderdonk, 98 N. Y., 158; Jordon v. Van Epps, 85 id., 421. What may be the views of the respondent’s counsel on the question which we have considered we are not advised, as in their prizzted brief they make no reply to the argument of the appellants that the special term had no jurisdiction over the subject matter.

We have not looked into the record for the purpose of determining whether the taxes w'ere valid or ziot, as we have reached the conclusion that if we should concur with the special term that they are void, then the order could not stand, as the court was without jzzrisdiction to detez*mine that question.

The order of the special term as to the parties who have appealed is reversed, with ten dollars costs of this appeal and disbursements.

Smith, Haight and Bradley, JJ., concur.


text:
    Philip Garbutt, App’lt, v. John W. Garbutt, Resp’t

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    Practice—Hew trial—Motion for—When not proper method to review.
    Where a case was tried before a special term and after the decision was made by the trial court and before judgment, the plaint £E moved at special term held by the justice before whom the action was tried for a new trial upon the ground that the judgment was against the weight of evidence. Held, ti:at the motion was not proper. That the only method for review of the trial was by appeal from the judgment.
    Appeal from judgment entered on decision of Monroe special term, dismissing complaint and from order denying motion for new trial.
    • John W. Morgan, for 'app’lt; John J. Snell, for resp’t.
   Bradley, J.

The parties own and occupy adjacent lands in the town of Wheatland, county of Monroe, through which runs a stream known as Allen creek. It enters at the south line of the plaintiff’s land and runs in a northeasterly direction, crosses the line between their lands, and upon the land of the defendant supplies water to operate his mills. The head which gives the power to run the mills is furnished by means of an artificial dam in the creek. The plaintiff charges that the defendant has maintained since 1868 a dam of greater height than he was permitted to do by any existing right, and as a consequence the plaintiff’s lands were flooded, and an injury suffered by him for which he seeks to recover ; and a portion of the dam having been taken out, that because the defendant is proceeding to repair and replace it at an unauthorized height, the plaintiff seeks by judgment to enjoin him perpetually from so doing.

The plaintiff’s premises are known as lot Ho. 38, and came to him from his father, William Garbutt, who died in 1867. The defendant’s premises, lying east of the former, are known as lot Ho. 43, and were derived by conveyance in 1858 from his father, Philip Garbutt, who died in 1865. A dam to supply the water and power to run the mills had been maintained during, from, and after the year 1828, and the right, and its extent to set back by it, the water upon the plaintiff’s premises were derived from a deed made by William Garbutt to Philip Garbutt, of date February 6, 1828, by which was granted to the latter, “his heirs assigns forever, the right and privilege to keep and maintain the dam across Allen’s creek, in the town of Wheatland, which is known by the name of Garbutt’s Mills, and now occupied by the said party of the second part, the height which it is at present, which causes the water in said stream to 'overflow its north bank more or less for thirty-six rods up the stream from the east line of lot Ho. 38, which is now owned by the party of the first part, and causes the water to set back up the channel of said stream until it crosses the south line of said lot.”

The question presented by the issues for trial, and tried, was whether the defendant was seeking to maintain, and had maintained for any time, a dam higher than that prescribed by such deed. The dam of 1828 went out in 1857, and a new one was then made, which continued until 1868, when a portion of it went out, and it was rebuilt that year, and the northern portion of that dam was taken out in the spring of 1884. The defendant was proceeding with its reconstruction and repair when this action was

Ho complaint is made of the dam as reconstructed in 1857, but it is claimed by the plaintiff, and evidence on his part was given tending to prove that the dam of 1868 was higher than that of 1857, set the water back farther, and over his premises more than the description in that respect given by the deed of the effect of the dam of 1828. And that by the dam of 1884 the defendant was seeking to maintain a dam at least as high as or higher than that of 1868. The dam of 1857 was located a short distance further up the stream than its predecessor, and there is some conflict of evidence about the precise location of the dam of 1868, while there is evidence on the part of the plaintiff that it was further up on the stream, that on the part of the defendant is that it was 'substantially in the same place, and that the ridge timber of the south end of the dam of 1857 was continued in that of 1868, and that the latter was the same height as the former; and that the dam, as reconstructed and repaired in 1884, was no higher than those of 1828 and 1857. And on the part of the defendant evidence was given tending to prove that the water, by the dams constructed subsequently to that of 1828, did not set the water back any further or over any more land of the plaintiff than was such effect of that dam.

Much evidence was given on both sides upon this question. And it appeared that the situation and height of the water in the creek was affected more or less by rains and was not uniform. The statements of the witnesses in respect to the relative situation of the water in the stream had reference to different times, and the differences may have to some extent been occasioned by changed conditions arising from natural causes. And there is evidence to the effect that the dam of 1857 was leaky and did not set the water back as much as that of 1828. To support the contention on the part of the defendant that the dam of 1868, and that of 1884, were no higher than that of 1828, reference was made to three timbers extending from the southern bank of the creek into the stream a short distance below the location of the dam of 1868, and evidence was given tending to prove that they were timbers upon which the apron of the dam of 1828 rested and part of it. This, if true, was treated as an important fact for the defendant. This was a contested fact on the trial. The plaintiff gave evidence tending to prove that the dam of 1828 was not located where those timbers were, but at another point where a log appeared, which was claimed to have been in the foundation of the old dam. This the defendant sought to meet by evidence that the log was placed there in or about 1870, to support the trestle of a tramway constructed by him for the removal and dumping at the bank of the creek the refuse material from a lime kiln. The evidence as a whole relating to and bearing directly and indirectly ■upon the main fact involved, presented a question of fact for the determination of the trial court.

And after a careful examination of all the evidence we cannot say that his conclusion was against the weight of the evidence, but think it was well supported by it.

There were some exceptions taken to the reception of evidence. Those exceptions do not, nor do any of them, appear to have been well taken, And as no point is made by the defendant’s counsel upon them, we do not deem it necessary to express any consideration in that respect.

The exceptions taken to the findings and refusals to find of the court go to the merits, and require no further special consideration.

After the decision was made by the trial court, and before judgment, the plaintiff moved at special term, held by the justice before whom the action was tried, for a new trial, on the grounds:

First. That upon the evidence already given, judgment should have been directed for the plaintiff.

Second. On the ground of newly discovered evidence.

The motion was made on the proposed case and upon, -affidavits, and was denied. It could not be properly made or heard on the first ground, as the only method for review of the trial was by appeal from the judgment. And in respect to the second ground of the application, the evidence which the plaintiff desired to add was cumulative in character, and it cannot be seen that it would likely change the result in the view which appears to have been taken by the trial justice of the evidence submitted to him at the trial. We think that the discretion of the court was not erroneously exercised in denying the motion. Geneva, I. and S. R. R. Co. v. Sage, 35 Hun, 95.

The judgment and order should be affirmed.

Haight and Lewis, JJ., concur.


text:
    Isaac Bier, et al, App’lts v. Chauncey S. Kibbe, et al, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25,1887.)

    1. Bill cot sale'to creditors to secure debt, surplus on sale to be PAID TO DEBTOR IS NOT TOLD UNDER 8 REV. STAT., 135, § 1—ATTACH-MENT.
    S. N. W., of the town of G., in Pennsylvania, on October 37,1883, was indebted to plaintiffs in the sum of $957.86, for which sum he confessed judgment. On the same day he executed and delivered to plaintiff a b 11 of sale of all goods and chattels of any kind and nature including fixtures in his store in the town of G., being his entire stock of goods and groceries in the store, together with the store fixtures, in consideration of the sum of $1,000. Thereupon and on the same day plaintiffs executed and delivered back to W.‘a paper in which" they agree in consideration of the hill of sale made to them that after their debt of $957.86 is paid out of the property mentioned in the bill of sale and their expenses made in the matter, they ■will pay the balance left from the sale of the goods to W. or any person to whom he may direct payment. W. G. E., one of the plaintiff’s firm, immediately went to G and packed up the goods and shipped them to a minor son in the town of S., in New York. Before E. got the goods out of the State of Pa. they were attache d and he paid to get them released. On arriving at S. they were again attached by defendant as a creditor of W- and removed from the plaintiff’s possession. Held, that 3 R. S., 185, § 1, making all deeds of gift, all conveyances and all transfers or assignments, verbal or written, of goods, chattels or things in action made in trust for the use of the person making the same, void as against the creditors existing or subsequent of such person, did not apply to this case.
    3. Same—Oases, not within 3 R. S., 185, § 1.
    An assignment to a creditor to pay his particular debt reserving the surplus is not void under the statute.
    3. Same—Vendee stands in relation of mortgagee—Residuary interest MAY BE REACHED BY CREDITORS OF VENDOR.
    In such a case the vendee is in character and effect a mortgagee and is to he treated as such; the mortgagee acquires only a lien upon the assigned property, the residuary interest of the mortgagor therein may still be reached by his creditors.
    Appeal from an order of the Cattaraugus special term denying motion for new trial on case and exceptions.

      Horade McGuire, for app’lts; J. J. Inman, for resp’ts.
   Haight, J.

This action was brought to recover the value of a quantity pf goods alleged to have been wrongfully and unlawfully taken from the plaintiffs by the defendants. The defendants justified under an attachment.

It appears that on the 27th day of October, 1882, one Simeon N. Wetmore, of Garfield, Pa., was indebted to the plaintiffs in the sum of $957.86, for which amount he confessed judgment; that on the same day he executed and delivered to the plaintiffs a bill of sale of all the goods and chattels of any kind and nature, including fixtures in his store at Garfield, in the state of Pennsylvania, being his entire stock of goods and groceries in the store building, together with the store fixtures, in consideration of the sum of $1,000; that thereupon and on the same day the plaintiffs executed and delivered back to Wetmore a paper in which they agree, in consideration of the bill of sale made to them, that after their debt of $957.86 is paid out of the property mentioned in the bill of sale, and their expenses made in the matter, that they will pay the balance left from the sale of the goods to Wetmore, or to any person to whom he may direct payment.

It further appears that W. G. Elyea, one of the plaintiffs firm, immediately went to Garfield, packed up the goods in boxes, and shipped them to one L. B. Elyea, a minor son of W. G. Elyea, at Salamanca, N. Y.,; that before Elyea succeeded in getting the goods out of the state of Pennsylvania they were attached at Clarendon, and he paid $73.15 to get them released; that on their arrival at Salamanca, N. Y., they were placed in a store, and were then again attached by the defendant Kibbe in this action as a creditor of Wetmore, and the goods were removed from possession of the plaintiffs.

There is no evidence in the case tending to impeach the validity of the plaintiff’s claim or judgment against Wet-more. There is no evidence that tends to establish actual fraud on their part.

The fact that they saw fit to pay $73.15 to get the goods released from an attachment afc Clarendon, Pa., and thus avoid the tying up of the goods by an attachment pending litigation in another state, does not tend to establish fraud; neither does the fact that the goods were shipped to L. B. Elyea. Whilst we confess that we can see no reason for so shipping them by W. G-. Elyea, still the fact that his son was named as consignee, standing alone, would not justify the finding that the goods were transferred to the plaintiffs With intent to' defraud creditors. The subsequent departure of Wetmore from this country would be a circumstance that might be taken into consideration in reference to himself, but it would not tend to show fraud on the part of the plaintiffs. Had the plaintiffs been purchasers without consideration, a different question would have been presented. The defendants, in their answer, allege that the conveyance was made without consideration, and was therefore fraudulent. They do not allege fraud in any other respect. The question is consequently narrowed to a construction of the bill of sale and paper that was given by the plaintiffs to Wetmore. As we have seen, these papers were drawn and “executed at the same time and simultanously delivered. They must therefore be considered together as forming the true contract between the plaintiffs and Wetmore. When considered together, they are in, substance, that Wetmore, in consideration for the debt that he owed the plaintiffs, $957.86, sold to the plaintiffs the goods in question, and the plaintiffs agreed in consideration therefor that after their debt was paid out of the property and their expenses in the matter, that the balance would be returned to Wetmore, or any person that he should direct.

■ It is now contended that this bill of sale is in violation of the statute, and consequently is fraudulent and void as against creditors.

The statute provides that “All" deeds of gift, all conveyances, and all transfers or assignments, verbal 'or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, snail be void as against the creditors, existing or subsequent, of such person.” 2 E. S., 135, § 1.

In the case of Goodrich v. Downs (6 Hill, 438), it was held that where a debtor in failing circumstances assigned his property in trust to sell and apply the proceeds towards paying four of his creditors, making no provision for the rest, and that the surplus, if any, after paying the four creditors be returned to the assignor, was void under this statute. At first glance this case would appear to be an authority against the validity of the bill of sale in question, but upon a careful reading of the entire case, it will be observed that the case is in some respects distinguishable. But in the case of Curtis v. Leavitt (15 N. Y., 9, 114, 124, 143, 150), the doctrine promulgated in the case of Goodrich v. Downs was in many respects criticized and overruled.

In the case of Leitch v. Hollister (4 Comstock, 211), one Walker was indebted to one Hollister and others, amounting to $3,000. Walker had a suit pending upon a building contract, which had been referred to a referee. He assigned to the defendants any award, or report or judgment which should follow any award or report with direction that the amount obtained should be applied in paying the indebtedness of the defendants, and the balance to be returned to Walker. It was held that the statute did not apply where the assignment was to a creditor or creditors, themselves, for the purpose of securing their particular demands ; that such an assignment or transfer was in legal effect only a mortgage and creates but a specific lien upon the property assigned ; that the residuary interest of the assignor may be reached by legal process or bill in equity according to the nature of the interests of the property.

In the case of Dunham v. Whitehead (21 N. Y., 131), it was held that an assignment by a debtor to a creditor of aE his personal property and choses in action for the payment of a debt with the provision for the return of the surplus is in effect a mortgage and is not void under the statute of trusts as for the use of the person making it. That a distinction exists between a trust where the whole title vests in the trustee and the transfer under which the debtor retains a residuary interest which remains subject to the action of creditors.

In the case of Van Buskirk v. Warren (2 Keyes, 119 S. C., 4 Abb. App. Deccisions, 457), it was held that an assignment made directly to certain creditors for the purpose of securing their particular demands is not an assignment in trust and is not void under the statute.

In McClellan v. Remsen 36 Barb., 622), the case so far as this question is concerned is on aE fours with the one under consideration. It was held that an assignment to a creditor to pay his particular debt, reserving the surplus to the debtor was not void under the statute. Brown, J., in delivering the opinion of the court clearly points out the distinction between such an assignment and one made by a debtor to a trustee upon trust for the payment of particular and specific debts, reserving the surplus, etc. In the one case a trust was created for the benefit of others in which the whole title passed to the, assignee, in the other it was in the nature of a chattel mortgage, merely securing the payment of the debt of the creditor to whom the transfer was made. This case was affirmed in the court of appeals, 5 Abbot, N. S., 250.

In the case of Smith v. Beattie (31 N. Y., 542), it was held that a bill of sale absolute upon its face transferring property to be held as security for the payment of a debt due the vendee is in character and effect a mortgage and is to be treated as such. In such case the mortgagee acquires only a lien upon the assigned property, the residuary interest of the mortgagor therein may still be reached by his creditors. See also, Knapp v. McGowan, 96 N. Y., 75, 86.

It would thus appear that the bill of sale in question was not fraudulent and void upon its face, but on the contrary, was a good and valid instrument creating a hen in favor of the plaintiffs to the extent of their claim. That whilst the defendants had the right to follow the surplus, they did not have the right to take from the plaintiffs that which was necessary to satisfy their judgment.

It follows that the order should be reversed, and a new trial granted, costs to abide event. So ordered.

Bradley, J., concurred. Lewis, J., not sitting.


author: Angle,. J.

text:
    William A. Ferguson, Pl’ff, v. Fall Brook Coal Company, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    Negligence—Master and servant—Railroads—What risks servants assume.
    The brakeman of a railroad company is chargeable with knowledge of the obvious condition of the structure, etc., of the cars with which he is to perform his duties, and he cannot recover for injuries arising from defects of which he had knowledge.
    Action to recover damages for injury sustained by plaintiff while in defendant’s employ as a brakeman. Tried at Steuben circuit, November, 1885. Plaintiff non-suited and exceptions ordered heard at general term in the first instance.
    On the evening of January 13, 1883, the defendant started a train from Corning to Lyons, consisting of a locomotive and tender, a combination baggage and smoking car and a passenger coach. Plaintiff was head brakeman on the train, his place being at the front end of the coach. As the train was slowing up for a station about five miles from Corning, it collided with a freight train; the plaintiff was then at his post on the front of the coach, the combination car being next in front, and he had a moment before firmly set his brake in response to danger signals. In the collision the platform of the combination car was forced on and over the platform of the coach, the foot of plaintiff was caught, and thereby he sustained the injury complained of.

      F. A. Williams, for pl’ff; A. S. Kendall, for deft.
   Angle,. J.

The contention of plaintiff is that defendant was negligent in the make up of the train, in not furnishing safe and proper cars adapted to be coupled together, safe and proper couplings, and safe and proper brakes.

Plaintiff gave evidence tending to show that the platform of the coach was from four to six inches lower than the platform of the combination car; that the draw-head on the coach was lower than the draw-head on the car, so that the lower part of the draw-head of the car only lapped about two inches upon the upper part of the draw-head of the coach (both draw-heads being somewhat oval on the buffer), so that owing to their unequal heighth the draw-heads were connected by a crooked link; that the fastenings of the draw-head of the car where it was fastened under the car were broken by the collision. The evidence showed without conflict that the draw-heads did not pass each other in the collision, but were driven together and so held by the fink and pins with their buffer ends in opposition to each other, at least in part. ,

On his direct examination, plaintiff testified that he knew the difference in elevation between the draw-heads, he had coupled them so many times; he had never seen the platforms lap, but had seen the draw-heads lap; had called the attention of Mr. Butler, the foreman in the repair shop, to this defect in the coupling; told him that Way, the conductor, wanted him to raise the coach so they could couple it with a straight fink.

I blocked up one draw-head one night and the sill had worn so there was some play; I got a long straight link, and when they pulled it out it naturally raised the coach and made a chuck, and Way asked me not to couple with a straight link any more, hut to speak to Butler to have it fixed; when I stated this to Mr.' Butler, he said he would look to it and see what he could do; this was three or four weeks before the accident occurred.

On his cross-examination it appeared that he had been brakeman for defendant for some time and had used this coach and car during the whole time ; that he had coupled them together often and knew the position of the platforms on each, and of the draw-heads and couplings, he had seen them often. “ They were so that anybody could see that one was lower than the other.” “I knew I could not connect these draw-heads with a short, straight link. I saw that the first time l ever saw the cars ; could not tell how many times I connected these cars together and saw that; probably once a day all the time I was there. I went over these platforms a large number of times every day. ” “ There was nothing to prevent my seeing all there was there and observing everything in reference to the platform and couplings.”

The law applicable to this class of cases has often been announced, and in the late case of Appel v. B. N. Y. and P. R. R. Co. (2 N. Y. State Reporter, 257), it is again held to be the duty of a railroad company to its servants to use ordinary care in furnishing structures and implements with a view to their protection, and a company may not unnecessarily expose its servants to danger from imperfect or defective structure, machinery and appliance relating to the business and its operations. But the servant is chargeable with knowledge of the obvious condition of the structure, etc., and he cannot recover for injuries arising from defects of which he had knowledge.

The above case was in this department and the authorities there cited fully sustain the above position, though in that action it was held that the case was properly allowed to go to the jury on a question arising upon the want of blocking in a frog.

In the present case the plaintiff himself testifies to what we think is full knowledge of the defects complained of and he cannot recover.

There does not seem to be any evidence to sustain the plaintiff’s contention that the brakes were defective, except that their application failed to stop the train in time to avoid the collision; nor is there anything to sustain his contention that the draw-head of the combination car was not properly fastened to the car, except the fact that it was torn loose by the collision.

There was not evidence enough to go to the jury either with reference to the brakes or the fastenings of the draw-head to the car.

The exceptions are overruled and judgment ordered for defendant, on the non-suit.

Haight, J., concurs, Bradley, J., taking no part.


author: Smith, P. J.

text:
    Holmes, Booth and Hayden, Resp’ts, v. James Rogers, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Evidence—Secondary—Non-production op written instrument— When accounted for—Objection to testimony.
    In an action brought to recover a balance of account alleged to be due to plaintiff, a corporation, for goods sold and delivered to defendant by plaintiff’s assignors, G & Co., the dispute was as to two items, one dated August 16, 1879, and the other August 27. Plaintiff claims that on or about the date mentioned defendant ordered merchandise of G & Co., and that the goods so ordered were sent to and received by him; and defendant denies ordering or receiving the goods, or any portion thereof, by himself or any one authorized thereto by him. By uncontradicted evidence it appeared that on August 16, 1879, G & Co. received an order by mail, and on August 27 an order by telegraph, purporting to be signed by defendant, for goods which they at those dates shipped to defendant. The written order and telegram were not produced at the trial, but evidence was given tending to show their destruction or loss, which justified the admission of secondary evidence. B, a witness called by plaintiff, testified that he personally received the order of August 16; he being at that time one of the firm of G & Co.; that it was a letter in the handwriting of defendant, the same writing he had always sent his prior orders in, and was signed by him; that the witness knew his handwriting, and that it was his. An objection to paroi proof of the contents of the letter was taken at an earlier stage of the trial, and the court had ruled that it would be stricken out if proof of the loss of the letter and order was not given, but no such objection was made after the evidence above referred to tending to show the destruction or loss of the order and telegram was introduced, held, that the testimony of B might, therefore, be regarded as having been received without objection; also that an objection that the non-production of the letter and telegram had not been accounted for would not have been well founded.
    2. Questions of fact—Decision upon by triad judge—When not disturbed.
    In respect to the item of August 16, a witness called by plaintiff testified that he was general agent of the L. S. andM. S. R. R. Co. for the delivery of freight at B, and produced a delivery book of freight of that company containing original entries of freight delivered for the month of August, 1879. Among these was a receipt of a parcel corresponding to the item charged, which was shipped to J. R. The witness testified that it was delivered by himself on August 17 to J. J. W. on the order of J. R, and the receipt was signed by W on the day of its date. He also testified that it was a strict rule of the company not to deliver freight to any person other than the consignee except on written order from him, and that the rule was not in this instance departed from. W was not produced as a witness.
    In regard to the item of August 27 witness testified that he sent it by express as ordered, and produced what he testified was a delivery receipt book of the B office of the A E Co. for 1879, containing a receipt dated August 29, 1879, which witness testified was for the same package that he sent to defendant to fill his order as telegraphed, and the signature to which he stated was in defendant’s handwriting. The receipt was put in evidence. Held, that the evidence established a prima facie case for the plaintiff, and that the testimony on the part of the defendant not so preponderating_ as to justify the conclusion that the decision of the trial judge upon questions of fact was against the weight of evidence, it must be regarded as conclusive.
    Appeal from a judgment entered upon the decision of the court at the Erie circuit, on a trial without a jury.

      Giles T. Stilwell, for appl’t; Geo. M. Osgoodby, for resp’t.
   Smith, P. J.

This action is brought to recover a balance of account alleged, to be due to the plaintiff, a corporation, for goods sold and delivered to the defendant by the plaintiff’s assignors, composing the firm of A. A. Gaylord & Co., of Cleveland, Ohio.

The only dispute relates to the last two items of the account, one dated August 16, 1879, of $90.90, and the other August 27, of $7.50, the plaintiff claiming that merchandise, consisting of hghtning rods and fixtures, to those amounts, respectively, was ordered by the defendant on or about the dates mentioned from Gaylord & Co., and that the goods so ordered were sent to and received by him; and the defendant denying that he ever either ordered or received the goods or any portion of them, and that he ever authorized any other person to' order or receive the goods or receipt for them.

It is contended by the appellant’s counsel that the findings of the trial judge adverse to his client upon the issues above stated are against the weight of evidence.

It appeared by uncontradicted evidence that on the 16th of August, 1879, Gaylord & Co. received an order by mail, and on the 27th of August an order by telegraph, purporting to be signed by the defendant, for goods which they shipped at those dates, respectively, directed to the defendant at Buffalo.

The written order and telegram were not produced at the trial, but evidence was given tending to show their destruction or loss, which we think justified the admission of secondary proof of their contents.

Mr. Bacon, a witness called by the plaintiff, testified that the order of August 16th was received by himself personally, he being then one of the firm of Gaylord & Co.; that it was in a letter which was in the handwriting of the defendant, the same writing that he had always sent his prior orders in, and was signed by him; that witness knew his handwriting and it was' his.

An objection to paroi proof of the contents of the letter was taken at an earlier stage of the trial, and the court had ruled that if proof of the loss of letters and orders was not given paroi evidence of their contents would be stricken out, but no such objection appears to have been made after the evidence above referred to, tending to show the destruction or loss of the order and telegram, was introduced. The testimony of the witness Bacon, above stated, may therefore be regarded as having been received without objection. But, as has already been suggested, if it had been objected that the non-production of the letter and telegram had not been accounted for, the objection would not have been well founded.

In respect to the item of August 16th, a witness, Baker, called by the plaintiff, testified that he was the general agent of the Lake Shore and Michigan Southern Railroad Co. for delivering freight at Buffalo, and he produced what he called a delivery book of freight of that company, containing original entries of freight deliveries for the month of August, 1879. Among the entries therein was a receipt of one box of lightning rods, shipped from- Cleveland to James Rogers in August, 1879. ■ The witness testified that the box was delivered by himself, on the order of James Rogers to J. J. Weaver, August 17, 1879, and the receipt was signed by Weaver on the day of its date. He also testified that it was a strict rule of the company not to deliver any freight to any person other than the consignee, without the order of the consignee, and that the rule was not departed from in this instance.

Weaver was not produced as a witness.

' In regard to the item of August 27, the witness Bacon testified that he sent it by express as ordered, and he produced what he testified was a delivery receipt book of the Buffalo office of the American Express Company for 1879, which contained a receipt dated 29 August, 1879, which the witness testified was for the same package that he sent to the defendant to fill his order as telegraphed, and the signature to which the witness stated was in the handwriting of the defendant. The receipt was put in ¿vidence. Obviously, the testimony introduced by the plaintiff was prima facie proof, at least, of a sale and delivery of each item of the goods to the defendant.

' We have examined the testimony given on the part of the defendant. It raises a conflict, but it is not so preponderating as to justify us in holding that the findings are against the weight of evidence, and the decision of the trial judge upon the questions of fact must therefore be regarded as conclusive.

The judgment should be affirmed.

Barker, Haight and Bradley, JJ., concur.

Affirmed.


text:
    Edmund Steward, App’lt, v. George W. Cole, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    1; Chattel mortgage—Refiling of—3 R. S., 3349—Valid as against . MORTGAGOR THOUGH NOT REFILED.
    Plaintiff claimed property by virtue of a chattel mortgage executed by H. B., September 33, 1884, to secure payment of $500 in one year from the date thereof. Defendant claimed it as receiver of H. B., appointed in supplementary proceedings. The mortgage was filed on the day of its execution, and the money for which it was given as a collateral security became due a year from that date and was not paid. The mortgage was not refiled until October 19, 1885. On September 33, 1885, an order for the examination of H. B., the judgment debtor, was served, and November second, defendant was appointed as receiver and on November seventeenth took possession of the property. 3 R. S., 3349 provides that every mortgage or conveyance intended to operate as a mortg ge of goods and chattels which shall not be accompanied by immediate delivery, etc., shall be absolutely void as against the creditors of the mortgagor and as against subsequent purchasees and mortgagees in good faith, unless the mortgage or a true copy thereof shall be filed as directed by the statute; and that every mortgage filed shall cease to be valid as against the creditors of the mortgagor or subsequent purchasers or mortgagees in good faith after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the year a true copy of the mortgage, together with a statement exhibiting the interest of the mortgagee in the property shall be again filed. Held, That the failure to refile the mortgage rendered it void as to creditors of the mortgagor and subsequent purchasers or mortgagees in good faith, but not as against the mortgagor.
    3. Same—Receiver in supplementary proceedings stands in the PLACE OP THE JUDGMENT DEBTOR—MORTGAGE VALID AS AGAINST RECEIVER.

      Held, That a receiver appointed and qualified is vested with the property of the judgment debtor from the time of filing the order appointing him, and where the appointment was made in supplementary proceedings his title to personal property relates back to the time the special proceeding was instituted. That the receiver, however, did not stand in the place of a creditor, and that inasmuch as the mortgage was valid as against the mortgagor it was also valid as against the receiver.
    3. Same-Rights op judgment creditor.

      Held, That the judgment creditor had the right to issue an execution and levy on the property in question, and had he done so after the expiration of the year and before the mortgage had been refiled, his right to sell would have been unquestionable, but having failed so to do his remedy was gone.
    Appeal from a judgment of the- Cattaraugus county court reversing the judgment of a justice’s court.

      Charles Z. Lincoln, for appl’t; P. B. Coxe, for resp’t.
   Haight, J.

This action was brought to recover the possession of a pair of oxen. Plaintiff claimed the property by virtue of a chattel mortgage executed by Horace B. Brown, September 22, 1884, to secure the payment of $500, in one year from the date thereof. The defendant claimed the property as the receiver of Brown appointed in supplementary proceedings upon a judgment. The mortgage was filed September 22, 1884, and the money for which the mortgage was given as a collateral security became due on the twenty-second day of September, 1885, and was not paid. The mortgage was not refiled until October 19, 1885. On the twenty-third of September, 1885, the order for the examination of Brown, the judgment debtor, was served, and the defendant was appointed receiver November second, and took possession of the oxen on November seventeenth thereafter.

The question presented upon this appeal is whether or not the mortgage is void as to the receiver by reason of its not having been refiled within the time prescribed by the statute. The statute provides that every mortgage or conveyance intended to operate as a mortgage of goods and chattels, which shall not be accompanied by immediate delivery, etc., shall be absolutely void as against the creators of the mortgagor and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shah be filed as directed by the statute, and that every mortgage filed shah cease to be valid as against the creditors of the mortgagor or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless within thirty days next preceding the expiration of the year a true copy of the mortgage, together with a statement exhibiting the interest of the mortgagee in the property, shah be again filed. 3 R. S., [7th ed.], 2249.

It will thus be observed that the failure to refile the mortgage renders it void as to the creditors and subsequent purchasers or mortgagees in good faith. It is not void as to the mortgagor. As to him, the mortgage remains of full force and effect," even though it was never filed. Under the Code, a receiver, when appointed and qualified, is vested with the property of the judgment debtor from the time of filing the order appointing him, and where the appointment was made in proceedings supplementary to an execution, his title to personal property relates back to the time 'the special proceeding was instituted. The receiver becomes vested with all the rights and property of the judgment debtor. Pettibone v. Drakford, 37 Hun, 628.

In the case under consideration the receiver acquired the same interest in the mortgaged property that Brown had. He took the title as a trustee commissioned to dispose of it and pay the judgment creditor. The receiver was not a creditor and did not stand in the place of one. His rights and duties were entirely different. The plaintiff, was not bound to keep his mortgage filed as against the receiver any more than he was against the mortgagor, and inasmuch as the mortgage was valid as against the mortgagor, it was also valid as against the receiver. The debt of the mortgagor was past due. The plaintiff had the right at any time to take the mortgaged property into his possession, and no one but a creditor or subsequent purchaser or mortgagee in good faith had the right to interfere. Gardner v. Smith, 29 Barb., 68; Niagara County National Bank v. Lord, 33 Hun, 557, 564; Dubois v. Cassidy, 75 N. Y., 298; Tinkey v. Langdon, 13 Week. Dig., 384; Campbell v. Genet, 2 Hilton, 290.

We are aware that the case of Clark v. Gilbert (10 Daly, 316), is, in some respects, in conflict with the views as above expressed. The case, however, is distinguishable from the one under consideration, and it does not attempt to disprove of the doctrine promulgated in the case of Gardner v. Smith, supra, which we regarded as controlling in this case. The judgment creditor had the right to issue an execution and levy upon the oxen in question, and had he done so after the expiration of the year and before the mortgage had been refiled, his right to sell would have been unquestioned. Ely v. Carnley, 19 N. Y., 496; Fraser v. Gilbert, 11 Hun, 634; Steele v. Benham, 84 N. Y., 634.

But having failed to make such levy his remedy is gone. Ho claim of fraud is made on the part of the mortgagor and mortgagee, and consequently the case is not brought within the provisions of chapter 314, Laws of 1858.

The judgment of the county court°should be reversed and that of the justice court affirmed. So ordered.

Bradley and Angle, JJ., concur.


author: Daniels, J.

text:
    James R. Keene, Resp’t, v. Elmore N. Kent et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Contracts—Unlawful combination—Bill of particulars—When ORDER FOR SHOULD NOT BE GRANTED.
    The plaintiff, with others, entered into an agreement with defendants, as brokers, to form a pool for the purchase and sale of lard; certain of the parties binding themselves to tie up and withdraw from the market a large quantity of lard, and thus so control that product as to enable them to advance its price. In this action to recover alleged profits: Held, that such combination or scheme is an unlawful conspiracy, and therefore an order for a bill of particulars should not be granted.
    Appeal from an order directing the service of a bill of particulars.

      Joseph H. Choate, for app’lts; Henry S. Bennett, for resp’t.
   Daniels, J.

The order for the bill of particulars was evidently made under the authority of the case of Miller v. Kent (59 How., 321), arising out of the same business which forms the subject of the plaintiff’s complaint. But since that case was decided the affidavits made on behalf of the defendants in this action proved the fact to be that the books of account of the persons concerned in the business have been scattered and lost or mislaid, rendering it impracticable for them to make and furnish the bill of particulars directed by the order, and the fact that six years had nearly expired between the completion of the business and the commencement of the suit, is corroborative of these statements.

But the affidavits read upon the hearing of the motion established the transaction, out of which the plaintiff’s claim has arisen, to have been an unlawful combination to advanee and raise the price of lard. It is so shown by the agreement forming a part of defendants’ answer, as well as by the affidavits contained in the case, including that of the plaintiff himself, that the nature of their business was what is called a pool for the purchase and sale of lard. And to render it successful the parties to the agreement, including the plaintiff, were to withhold from market a large quantity of lard respectively owned by them for the' apparent object of advancing the price of the commodity in which they had ágreed to deal.

The agreement contains this language : “Now, for and in consideration of the sum of one dollar to each of the aforesaid parties paid by E. A. Kent & Co., and for other valuable considerations, receipt of which is hereby acknowledged, the aforesaid James R. Keene, W. Butcher Sons and D. & N. G-. Miller agree and bind themselves to hold, tie up and effectually withdraw from market, so that the same cannot be sold during the continuance of this agreement without the written consent of all the parties hereto, the aforementioned number of tierces of lard, to wit: James R. Keene, 50,000; W. Butcher Sons, 40,000; D. & N. G-. Miller, 16,000; and from time to time, when demanded by E. A. Kent & Co., to furnish the said E. A. Kent & Co. with evidence satisfactory to them that the said number of tierces of lard are withheld from market and in possession of the aforesaid parties respectively. And it shall be the duty of said E. A. Kent_& Co. to obtain such evidence of possession whenever required by either of the parties hereto.” The business of the combination is shown to have been carried on under this agreement, which, however, it is alleged was violated by the plaintiff himself. Its object was to control the product as far as that could be done in which these parties had agreed to deal and to withhold it from sale in the market, thereby enabling them to advance the price of the commodity to the public. This was an agreement and combination which the law will not sanction. It will not permit parties owning property, and contemplating the purchase and sale of more of it, to combine together to keep it off the market, and in that manner oblige the public to pay a larger price for the article than it would otherwise secure. Such a combination is an unlawful conspiracy punishable as a crime. When it may be successfully carried out its effect is to impose upon the public and to oblige individuals having occasion to purchase the article dealt in, to pay more for it than its market value. So far as such a combination or scheme may be rendered successful, it is little if anything less than respectable robbery, which the law will not permit or sustain.

This principle was considered in Arnot v. Pittston, etc., Coal Company (68 N. Y., 558), where it was stated “that a combination to effect such a purpose is inimical to the interests of the public, and that all contracts designed to effect such an end are contrary to public policy and therefore illegal.” Id., 565. And to the same general effect is Bell v. Leggett, 3 Seld., 176. And it is further well settled where such a combination or conspiracy may have been carried into effect that the law will not aid either of the parties in any endeavor by means of legal proceedings to secure or obtain his share of the plunder. Knowlton v. Congress, etc., Company, 57 N. Y., 518.

On the contrary it will leave the parties precisely where they have placed themselves. It will not interpose to secure to either that advantage which, under the terms of the agreement entered into and executed, he had reason to expect would be conceded to Mm by the other parties to the unlawful transaction. If persons devise and enter into schemes or conspiracies of this character, they must depend for their remedy upon the application of the rule which may be observed by other confederates, requiring that there shall be honor among certain classes of persons who violate the laws of the state. They cannot appeal to the court for redress, or for any aid or assistance, in endeavoring to enforce the contract so far as it may be in favor of one of the parties against the others. This feature of the case-was not in that of Miller v. Kent, and, therefore, not considered by the court. But as it is in the present suit, and not only not denied, but substantially conceded by the plaintiff himself in his own affidavit, he has no right to expect that the court will interpose its authority in his behalf to enforce that forlorn principle of honor upon which his alleged rights must be successfully dependent.

The order should be reversed and the motion denied, with the usual costs and disbursements.

Brady, J., concurs in the result that the order appealed from should be reversed.