text:
    Louise M. Galligan, Pl’ff, v. Lewis M. Hornthal, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Venue—Libel—Acts of public official.
    Plaintiff, who was the principal of a grammar school in the city of New , York, brought action in Queens county against defendant, one of the trastees of common schools of the ward and the secretary of the board, to recover damages for slander and libel; alleging that defendant stated to persons connected with the press that plaintiff was before the board under injurious charges, which were proven; that he and the other trustees took testimony of under teachers without requesting her presence, and subsequently served a copy of charges alleged to be based on that testimony, and that defendant furnished a synopsis of the testimony to the press. The answer set up the proceedings of the trustees, and alleged that the testimony was taken on notice. Held, that the motion to change the place of trial to New York should have been granted as a matter of right under subdivision 2 of § 983 of the Code; that defendant was sued for an official act, and the action should be tried in the county where the act took place.
    2. Same—Condition—Pleading.
    The court has no power to impose as a condition of denying a motion to change the place of trial that plaintiff shall withdraw one of her causes of action against her consent.
    Cross-appeals from order denying motion to change the place of trial from Queens county to the county of New York.

      John J Macklin, for pl’ff ; Hoadly, Lauterbach & Johnson (Wm. N. Cohen, of counsel), for deft.
   Barnard, P. J.

The complaint states three causes of action against the defendant for libel. The plaintiff is a teacher in one of the common schools of the city of New York known as primary department of grammar school No. 70. That the board of education had vested the trustees of common schools for the Nineteenth ward of the city of New York with the care and management of the primary department, and that the defendant was one of the trustees -and the secretary of this ward board. That the defendant stated to persons connected with the press that the plaintiff was before the board under injurious charges which were proven, and that she would have been dismissed except that there was no law to cover the case, and these statements were published, and that they were false. The second cause of action states that the defendant and his associate trustees took testimony of under teachers,, injurious to the plaintiff, without requesting her presence, and subsequently served a copy of charges alleged to be based upon that testimony. That the defendant caused to be published the same article which is set forth in the first cause of action; that the statements were not founded on the testimony taken by the trustees and were false.

The third cause of action sets forth that the defendant, with his associate trustees, took testimony without notice to plaintiff in respect to her management of her school and in respect to her personal reputation. That the testimony was very injurious to the plaintiff and was untrue. That the defendant and his associates made charges based upon this testimony, which testimony was taken down in writing and circulated. That the charges and testimony weie filed with the board of education, which board referred the case to a committee for investigation. That the representatives of the public newspapers obtained access to them and published what purported to be .extracts from the statements; that the defendant furnished a synopsis óf the testimony to the public press and that an injurious article was published in the New York Times on the 11 th of June, 1892. That the defendant told the Times reporter that the language used by the plaintiff as shown by the evidence of under teachers was “ vile, immoral and disgusting.” That the board of education removed the plaintiff from her position as principal.' The plaintiff then sets forth the evidence and it is injurious to the plaintiff.

The answer makes denial of certain of the allegations of the complaint, and sets up the proceedings of the trustees and claims them to be privileged under the state of the pleadings. The defendant, who had demanded that the place of trial be changed from Queens county, which is designated in complaint, to the county of New York, made a motion to change the place of trial to New York. The motion is based upon the fact that the convenience of witnesses will be promoted by the change. The motion ought to have been granted as matter of right under subd. 2 of § 983 of the Code. The defendant is sued for an official act, and it is not made less official by a statement that the statements of the witnesses taken were false and untrue. If the witnesses testify falsely, the testimony will protect those who act upon it if they have not procured the false testimony, if it be taken in a regular proceeding. The complaint states that- it was taken without notice. The answer states that it was taken upon notice, and thereby an official act is pleaded if the defendant’s allegation is proven on the trial. The section as to the place of trial for official acts will be rendered futile if it be held not to be official by a denial of jurisdiction to do the act, and such a denial be deemed controlling upon the defendant.

The convenience of witnesses will be subserved by a change of the place of trial. None of the witnesses on either side reside in Queens county. The condition that the plaintiff shall withdraw the third cause of action is not within the power of the court to impose against the consent of the plaintiff. She has the right to frame her complaint under the rules of law, and her action must be tried upon it.

The order should be reversed, with costs to abide event, and the motion granted without conditions. Costs of appeal to neither party as against the other.

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


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    John Raven, Resp’t, v. William R. Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Contract—Breach—Evidence.
    In an action for breach of contract to do the grading of a lot at 14 cents per cubic yard, by the refusal of defendant to allow plaintiff to proceed with the work, plaintiff testified that the grading could be done for 81 cents; defendant offered to show that the actual cost to the contractor would be more than 141 cents, which proof was rejected. Held, error.
    Appeal from judgment in favor of plaintiff.

      James R. Bowen, for app’lt; Frederick W. Clark, for resp’t.
   Barnard, P. J.

A large of the claim was for damages for a breach of the contract by which the plaintiff was to grade a lot at fourteen cents per cubic yard. There was no real dispute as to the contract or as to its breach. After a small portion of the gr.ading had been done, the defendant directed the work to stop. The plaintiff gave evidence that the grading could have been done for eight and a half cents a yard, which gave five and a half cents as the profit which the plaintiff would have made if he had been to the work. The defendant offered to prove that the actual cost to a contractor per cubic yard for grading this property would be more than fourteen and a half cents. This proof was rejected. The ruling was erroneous. If the proof had' been received and credited there was -no basis for a verdict for $1,000 damages, which was the sum allowed for the refusal by defendant to permit the plaintiff to go on with the excavation.

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

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


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    Wiilliam E. T Smith et al., Resp’ts, v. Lydia S. Floyd, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    'Will—Construction.
    By the will of a testator he gave a sum of money to his daughter with a request that she keep it for the benefit of her children; gave certain lands to his son “ during the period of his natural life, with the right and privilege of disposing of the same by will or devise to his children, if any he should have, and in case he should die without leaving any children, lawfully begotten, then, and in that case, I give and devise the same to the children of my daughter.” He also gave funds and money over and above legacies to his daughter. Held, that the testator’s intent was to convey the land to the son’s children and that upon the son’s death without will his children took a good title thereto.
    Appeal from interlocutory judgment overruling demurrer interposed to the amended complaint.
    Action for construction of a will and that it be adjudged that plaintiffs are the owners in fee simple of the whole of the real estate described and that the defendant be excluded from all claims and interest therein.

      Carter & Ledyard (George H. Balkan, of counsel), for app’lt; Clarence G. T. Smith, resp’t in person; Wilmot M. Smith (Timothy M. Griffing, of counsel), for other resp’ts.
   Barnard, P. J.

William Smith of Brookhaven, Suffolk county, died in 1857, leaving a last will and testament. He had two children, Egbert T. Smith, now deceased, and the defendant. The plaintiffs are the children of Egbert T. Smith, and the question between the parties arises under the will of William Smith. By this will the testator made provisions for his widow, now deceased. He gave the sum of $30,000 to the defendant, accompanied by a 11 desire that my said daughter shall keep the said legacy for the benefit of her children.’’ The testator then gave the lands described in the complaint to his son, Egbert T. Smith, ■“ during the period of his natural life, with the right and privilege of disposing of the same by will or devise to his children, if any he should have, and in case he should die without leaving any children, lawfully begotten, then, and in that case, I give and devise the same to the children of my daughter, Lydia, to them, their heirs and assigns forever.” Egbert T. Smith left no will, and the question is whether the lands upon his death went to his children. There is no residuary clause in the will beyond one which gives funds and money over and above legacies to his daughter, Lydia, absolutely. The true intent and meaning of the will is clear. The testator meant to convey this land to the children of Egbert T. Smith. He gave a power of disposition by will, but this was “to his children.” It was only in case that Egbert T. Smith died childless that the devise over was made to Lydia and her heirs. A construction which should disinherit these children of Egbert T. Smith, when the testator was so careful as to limit his power of disposition by will to them, would be unwarranted. Their father could not take away the estate from them by will; but he could by dying without one. If the intention to give the remainder to the children is clear, the law implies the gift to them. Baker v. Lorillard, 4 N. Y., 257; Matter of Vowers, 118 N. Y., 569; 23 St. Rep., 715; Jarman on Wills, 5 Am. Ed., vol. 2,133.

A gift over by the testator based on default of children of Egbert T. Smith,,strengthens the implication in favor of a gift to the children if the power of appointment be not exercised. Butler v. Gray, L. R., 5 Ch. App., 26.

The plaintiffs, therefore, took a good title to lands upon the falling in of the life estate under the will of William Smith.

The order overruling the demurrer to the complaint and the interlocutory judgment therein should be affirmed, with costs, but with leave to defendant to answer in twenty days on payment of costs.

. Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    In the Matter of the Application of Sophia A. Daniels for the appointment of a temporary guardian of Jennie R. Willett, an infant under fourteen years of age.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Guardians—Residence of infant.
    The infant resided continuously with her parents in Connecticut until shortly before the death of her father (her mother having previously died), when she went by his direction to a maternal uncle in that state, with whom she lived until the probate court rejected her father’s will making said uncle her guardian, whereupon the uncle sent her to the petitioner, her maternal grandmother, in Brooklyn. Held, that this was merely a change of locality of the infant, made by one who had no right, under the circumstances, to make it, and that such change did not make the infant a resident of Kings count} within the meaning of § 2827 of the Code.
    Appeal from order of the surrogate of Kings county, appointing respondent temporary guardian of the person of Jennie R. Willett, an infant nine years of age.

      Michael H. Cardozo and Edgar J. Nathan, for Martha S. and E. S. Willett, app’lts; William H. Arnoux, for petitioner, resp’t.
   Pratt, J.

This is an appeal from an order of the surrogate of Kings county, appointing the petitioner, Sophia A. Daniels, temporary guardian of the person of Jennie R. Willett, an infant, until said infant attains the age of fourteen years. The guardian so appointed is the maternal grandmother of the infant, and resides in the city of Brooklyn. George W. Willett, the paternal grandfather of said infant, who resides in the city of New York, also made petition for the appointment of Mrs. Daniels as guardian. Martha S. Willett, the paternal grandmother, and Edward S. Willett, the paternal uncle of said infant, who reside in the city of Bridgeport, Connecticut, opposed the appointment of a guardian of said infant. Both the father and mother of the infant were residents of Connecticut. The mother died on December 6, 1889 ; the father died on July 9, 1892. After the death of the mother the infant lived with her paternal grandmother, in Bridgeport, until May 24, 1892, when, by her father’s direction, she went to her maternal uncle, Mr. Sandford, in Bridgeport, and lived in his family until September, 22, 1892, when he caused her to be taken to Mrs. Daniels, in Brooklyn.

On September 22, 1892, the probate court at Bridgeport' rejected the probate of the will of the infant’s father, made April 14, 1892, on the ground that he was not of sound and disposing: mind when he executed it. By that will Mr. Sandford was appointed sole guardián of the person and property of the infant. On September 26, 1892, Mrs. Daniels made her application in this matter. The infant had no property in the county of Kings, or indeed in this state; all her property was in Connecticut. Until sent here by her uncle she had resided in Connecticut. She was living in the family of her uncle, and the father, by his will, had attempted to appoint him her guardian, but the probate court in Connecticut rejected the will, and the uncle had no power or right thereafter, except to deliver her to some person legally authorized to receive her. No person at that time was authorized to receive her. No guardian of her person bad been appointed, and it was, therefore, his duty to retain and care for the child until some court, having jurisdiction, should ■ make an order with respect to her. Instead of doing that, as soon, as the will appointing him guardian was rejected, he at once sent the child outside the jurisdiction of the courts of Connecticut, to her maternal grandmother in Brooklyn, although equally near relatives were then living‘in Bridgeport. His object in doing so is apparent. He did not wish the courts of Connecticut to appoint a guardian of the person of this infant, who had always resided and all of whose property was in Connecticut It seems to us that this was merely a change of locality of the infant, made by one who did not, under the circumstances, have the right to do even that; and that such change did not make the infant a resident of Kings county within the meaning of § 2827 of the Code. The infant’s residence was in Connecticut, fixed there by act of her parent, and could not be changed in contemplation of law except by a guardian.

The order appealed from should be reversed, and the proceedings dismissed, with costs.

Barnard, P. J., and Dyicman, J., concur.


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    Philip H. Moore et al., Ex’rs, Resp’ts, v. The Hanover Fire Insurance Co., Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Insurance (fire)—Waiver of. conditions.
    A policy of insurance, in which the loss was payable to the mortgagee, provided that it should be void if foreclosure proceedings should be commenced or notice given of sale of the property, and that the assured should make proof of loss within sixty days after a fire. Foreclosure proceedings were commenced, of which notice was given to defendant’s agent, who agreed that their commencement should not injure the policy, but made no indorsement. After a fire occurred the assured refused, without reason, to make the proofs of loss, whereupon the mortgagee made and served them, sixty-one days after the fire, on defendant, which simply raised the objection that they were not made by the assured. Held, that the conditions of the policy as to foreclosure and the time within which the proofs should be served were waived.

      %. Same—Proof of loss, when mat be made bt mortgagee.
    Where the assured refuses to make the proofs of loss without any ground therefor, except that she requires a payment of money for so doing, the mortgagee, who is the real beneficiary, is justified in making the proof.
    Appeal from judgment in favor of plaintiffs, directed by the court on a trial without a jury.

      A. T. Clearwater, for app’lt; Esselstyn & McCarty, for resp’ts.
   Pratt, J.

The plaintiffs, Moore et al., mortgagees of the.insured premises, sue on defendant’s policy of fire insurance issued to Smith, covering, among other things, a dwelling-house on the mortgaged premises $1,500, loss, if any, payable to the mortgagee.

The policy contained a condition that (unless otherwise provided by agreement indorsed on the policy) it should be void “ if, with the knowledge of the assured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed.” If any fire occurred, the assured was to give immediate notice to the company and make proof of loss within sixty days after the fire.

The mortgagee commenced foreclosure proceedings August 17, 1891; the papers were served on the insured on that day. An agent of the defendant was informed of the fact, and agreed that the proceedings might be commenced without injuring the policy. It did not appear what the extent of the agent’s authority was, but the fact was that no agreement of waiver was indorsed on the policy.

Again: The building was destroyed by fire October 28, 1891, and the assured (Smith) without just cause refused to sign the proofs of loss, and thereupon the plaintiff made them out and sent them to the company on December 26, 1891, which was the sixty-first day after the fire. The case shows no complicity between the assured and the company in her refusal to sign the proofs. There was a deficiency on the foreclosure.

I find no difficulty with the failure to furnish proofs of loss within the sixty days. They were sent to and received by the -company. It did not reject them because they were not served in time. On the contrary, it did specify the objection that the assured had not made the proofs of loss herself. This would seem to indicate a waiver of the mere matter of time.

I think we are justified in holding a similar rule respecting the failure of the agent to indorse the agreement about foreclosure proceedings on the policy. The proof is clear that he said and orally agreed that the policy should stand, notwithstanding the proceedings instituted. Then when the notice and proofs were served they were not rejected because the policy had become void. On the contrary, they were retained, and the company contented itself with merely “ calling attention ” to this clause of the policy, without stating that it would stand on that objection. Instead of standing there, they apparently selected their ground, which' was that the assured had not herself made the proofs of loss. I think we are, therefore, justified in holding that these objections were waived, and that the case stood as though they were without foundation.

In respect to the remaining objection, we shall hold that the proofs of loss were well served by the plaintiffs. The assured refused to make the proofs of loss unless she was paid for it. There was no ground for her refusal. She ought to have signed the proofs, but she, without cause, refused, simply to induce plaintiff to pay money to her or her lawyer. Without attempting to characterize such conduct farther than to say that it was a fraudulent attempt to obtain money, we hold that, under all the circumstances, the real beneficiaries of this policy made the -best proof which they were able to furnish. The fact that the loss was payable to the mortgagee furnishes a strong reason inducing us to hold that, in face of this fraudulent refusal to do her duty, the real beneficiary was justified in making the proof.

We, therefore, though not without some hesitation, affirm this judgment, with costs.

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


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    The People ex rel. Daniel S. Toy, Resp’t, v. Alexander U. Mayer, Com’r, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Prohibition—Practice .
    Where there is no question as to the merits of the application, but only a question of law is involved, it is not error to issue a peremptory writ of prohibition on the return of the order to show cause, instead of an alternative writ.
    Appeal from order granting relator’s motion for a writ of prohibition, and from order denying motion to set aside the absolute writ issued against defendant.
    Relator appeared before the defendant, who was appointed a commissioner by the superior court of Baltimore to propound certain interrogatories to relator, and answered the same except as to certain declarations made to him by one Johnson, which he refused to state on the ground that they were in the nature of a confession made to him as a minister of the gospel in a course of discipline enjoined by the Baptist church. The commissioner overruled the objection and ordered him to answer, which relator refused to do, and thereupon defendant declared that he would issue his warrant to arrest relator for contempt.
    Relator thereupon procured an order to show cause, upon the return to which an absolute writ of prohibition was issued restraining defendant from issuing any commitment or doing any act to compel an answer by relator or to interfere with his liberty.

      Alexander U. Mayer, app’lt in person; David H. Hunt, for resp’t.
   Pratt, J.

There is no merit in this appeal. The only point made is that a peremptory writ of prohibition was issued instead of an alternative writ. Ho point is made that this was not a proper case for such writ or that the facts did not warrant it, but only that an alternative writ should have been issued.

A hearing upon the merits was had upon an order .to show cause which in effect fully answered the purpose of an alternative writ.

The object of the proceeding was to prevent the defendant from oppressively and illegally committing the relator to prison; and the fact that it was called a writ of prohibition is not material so long as the decision was right upon the merits and a proper result was accomplished.

Ho object could have been served by issuing an alternative writ as it appeared that only a question of law was involved and a short cut was adopted to accomplish a just result.

Order affirmed, with costs and disbursements.

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


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    Adele M. A. Hatfield, Resp’t, v. James W. Malcolm et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Foreclosure—Parties.
    Shortly after executing a purchase money mortgage the mortgagor sold the property to an association of which he was the manager, but the deed was not recorded. On foreclosure of the mortgage the association, although informed thereof, took no steps to be made a party, but negotiated for delay. Held, that said company was not a necessary party.
    2. Same—Service—Publication.
    An order for service by publication need not contain the option that a personal service out of the state be made.
    3. Same—Reference.
    An order of reference directing the referee to examine the plaintiff as to the truth of the allegations of the complaint is in due form.
    4. Same—Oath of referee.
    In the absence of any statement in relation thereto it will be presumed that the referee took the official oath.
    Appeal from order denying a motion to vacate a judgment in an action of foreclosure which was taken by default.

      Jeroloman & Arrowsmith (John H. Clapp, of counsel), for app’lts; H. T. Dykman, for resp’t.
   Barnard, P. J.

The plaintiff on the 15th of March, 1892, conveyed certain property in Westchester county to the defendant, James W. Malcolm. Malcolm gave back a mortgage for a> large part of the purchase money payable by instalments. The mortgage provided that upon a default in the payment of any instalment the plaintiff was empowered to sell the premises, and out of the proceeds to pay the mortgage debt. A default was made on the 15th of June, 1892, in the payment of $6,000 then due and the plaintiff foreclosed and sold the property and bid it in for her debt. Soon after the sale by the plaintiff to Malcolm he sold the property to The Amsterdam Real Estate Association. This deed was not recorded when the foreclosure was instituted. Malcolm was the manager for the Real Estate Company, and pending the foreclosure this company was fully informed of the proceedings and took no action in respect to being made a party defendant, but continued to negotiate for delay, and the objection now made that the company should have been made a party defendant' is without force. No deed was on record. Malcolm was its trustee and a knowledge that he intended to convey to the company would not have justified the plaintiff in making the company a party until the deed was given.

The order for the publication was based upon sufficient evidence and was in due form. The sheriff could not find either Malcolm or his wife in Westchester county. He had lived with his father at Mount Pleasant. Inquiry therein resulted in information that young Mr. Malcolm had gone to Tennessee; this was in June, 1892. In July, 1892, one of Malcolm’s brothers informed the plaintiff’s agents that his brother was at the races at Monmouth Park on the 4th of July, 1892, and he could be found, probably, at, Munden’s cafe, 6th avenue and 30th street. He could not be found there. Neither his father or his brother could give information where he could be found. The papers show an extreme effort to serve him with the papers in the state and fairly justify an inference that he was evading service by absence from the state, or by concealment within it.

The order need not contain the option that a personal service out of the state be made personally.

The case of Ritten v. Griffith, 16 Hun, 454, does not so hold. There a personal service out of the state was made without an •order of publication, and such a service was held void. The affidavit of publication in the Westchester County Reporter was ■sufficient. It had a summons annexed to it which was proved to have been published seven successive weeks from July 15, 1892, to August 26, 1892, both inclusive. The affidavit of publication in the Eastern State Journal is to the effect that an annexed summons had been published seven successive times beginning July 16, 1892. The order of reference was not jurisdictive, and is in due form. It directed the referee to examine the plaintiff as to the truth of the allegations of the complaint The complaint averred that there were no payments, and the plaintiff was examined and so testified before the referee.

As to the fact whether the referee took the official oath the papers are silent. The presumption is in favor of the performance of official duty.

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

Dykman and Pratt, JJ., concur.


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    In the Matter of the Judicial Settlement of the Estate of Isaac Hoyt, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Will—Construction.
    By testator’s will he gave to his daughter Hattie the net rents, interest and income of all his real estate in the village of Amity, "the same to be collected by my executors * * * and paid to her annually for and during her natural life,” and in case of a sale the proceeds to be invested and the interest paid to her as aforesaid. The residue of the estate he directed the executors to lease and deposit the net income in bank to create a fund to help pay oif any indebtedness against the same. The will concluded as follows: "and at the decease of my daughter Hattie to be equally divided between each of my grandchildren her surviving, share and share alike, her children and the children of my daughter Annie.” Held, that the residue went at once to the two daughters equally, because the provision as to accumulation was illegal, and a life estate only was given in the Amity lands to the daughter Hattie, and that such lands were given to the grandchildren living at her death per capita.

    Appeal from the decree of the surrogate of Orange county made on a settlement of the accounts of executors.
    The will of the testator appears in the opinion. The surrogate held that testator gave only a life estate in the Amity lands to his daughter Hattie and died intestate as to the remainder in said lands, and directed that upon the death of Hattie the trustees should pay the principal of any fund derived from the sale of said lands to the legal representatives of the daughters equally.

      Gilbert O. Hulse, for Hattie L. Hoyt, app’lt; John J. Beattie, for ex’rs, resp’ts; W. D. Mills, for Annie A. Conklin, resp’t.
   Barnard, P. J.

Isaac Hoyt, a resident of Orange county, died in 1886, leaving two children. One, the petitioner, Hattie L. Hoyt, unmarried, and a married daughter, Annie A. Conklin. The deceased left a last will and testament, as follows:

I, Isaac Hoyt, of the town of Warwick, county of Orange, and state of Hew York, being of sound mind and memory, and considering the uncertainty of this life, do make, publish and declare this to be my last will and testament, in manner following, to wit:

First. After all my just debts and funeral expenses are paid, I give, devise and bequeath to my daughter, Hattie L. Hoyt, the rents, interest and income of all my real estate situate, lying and being in the village of Amity, in the said town of Warwick, after deducting taxes, insurance, interest on bond and mortgage given to Elizabeth Utter to secure the payment of twelve hundred dollars, and all necessary repairs thereon, the same to be collected by executors hereinafter named, and paid to her annually for and during her natural life. And should my executors in their wisdom consider it best for the interest of my estate to sell or dispose of all or any part thereof, then the moneys arising from such sale or sales to be invested, and the interest to be paid to her as aforesaid.

All the rest, residue and remainder of my real and personal estate, wheresoever situated, I order my said executors to lease, and the rents and income arising therefrom, after deducting all taxes, insurance and mortgages held against any such real estate, necessary repairs and commissions, to be deposited in the Warwick Savings Bank, or any other solvent savings bank, to create a fund to liquidate or help pay off any indebtedness against the same.

I, however, leave it discretionary, and empower my said executors whenever they deem it for the best interest of my estate, to sell all or any of my real estate, and to give sufficient deed or deeds to the purchaser or purchasers thereof, and the moneys arising from such sale or sales, after deducting all expenses of such sale or sales, and the indebtedness held against such real estate, to be deposited, as aforesaid, or upon good securities elsewhere.

And at the decease of my daughter, Hattie L., to be equally divided between each of my grandchildren, her surviving, share and share alike, her children and the children of my daughter, Annie A Conklin.

Lastly, I nominate and appoint my friends, J. R. Waterbury and Wm. J. Sly, executors of this, my last will and testament, hereby revoking any and all other former wills by me made.

In witness whereof, I have hereunto set my hand and seal, this 25th day of May, 1886.

Isaac Hoyt, (l. s.)

The testator did not intend to give more than a life estate in the Amity lands by the first clause in the will. While there is a class of cases which hold that a gift of rents, issues and profits covers afee, this clause is so precise and definite that no doubt of the testator’s intention can be raised. The rents were to be paid, after deducting repairs, taxes and interest, to Hattie annually for and during her natural iife. The executors had given them a power of sale, but in case of a sale the moneys received on the sale were to be invested and “ the interest to be paid to her as aforesaid.” Matter of Smith, 131 N. Y., 239; 43 St., Rep., 271. What the testator intended to do with the land after the life estate ended is not plain. There is no distinct gift of it. The testator divided his estate in two parts. He gave a life estate in the Amity lands to his daughter Hattie for life. He then directs that the “ rest, residue and remainder ” of the estate, real and personal, be leased and the proceeds, deducting taxes, insurance and repairs, to b¿ deposited in a savings bank or invested “ to create a fund to liquidate or help pay off any indebtedness against the same.” A power of sale is given in respect to the lands other than the Amity lands, but the proceeds of lands under this part of the will are to be “ deposited as aforesaid or upon good security elsewhere.” The will then ends in this clause: “And at the de-

cease of my daughter, Hattie L., to be equally divided between each of my grandchildren her surviving, share and share alike, her children and the children of my daughter, Annie A Conklin.”

The serious question in the will is whether this clause was intended to cover the Amity lands and the rest, residue and remainder of the estate other than the Amity lands. My opinion is that it was intended to thereby dispose of the whole estate. No provision is made for the payment of anyportion of the estate to Mrs. Conklin during the life of Hattie L. Hoyt. Both parts are tied up during the life of Hattie and both are made free upon her death. In determining whether the Amity lands are covered by this clause, it is immaterial what shall be adjudged to be the legality of the disposition of the rest and remainder under the clause which provides for an accumulation of that part of the estate until Hattie’s death.

I think this rest and remainder at once goes to the two daughters equally, because the accumulation is illegal; and that the Amity lands are given to the grandchildren living at Miss Hoyt’s death, per capita.

Decree to be modified accordingly.

Dykman and Pratt, JJ., concur.


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    Henry Berau, App’lt, v. Daniel O’Connell, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Partnership—Misappropriation of funds by one partner.
    The parties hereto were partners in a contract with the city of Brooklyn for the removal of garbage, and the plaintiff alleges that defendant withdrew large sums of money to protect the partnership interests, but did not so use it. Plaintiff’s testimony showed that defendant told him that four per cent, of the receipts must be paid to “ those parties in Willoughby street,” but refused to tell him who they were; that from time to time he gave defendant his share of said percentage, which was given to one W., with instructions to pay to a person presenting a card with “ H. B.” written on it by defendant. This was corroborated by W., who testified that he did not know who received it. Defendant simply denied the whole matter. Held, that a finding in favor of defendant was error; that it was an easy inference that the money was returned to defendant, and he is responsible until he shows a payment to some one else.
    Appeal from judgment in favor of defendant, entered upon a* trial by the court without a jury.
    Action to recover moneys of a partnership, alleged to have been misappropriated by defendant.

      Hector M. Hitchings, for app’lt; Anthony Barrett, for resp’t.
   Barnard, P. J.

The parties to the action entered into co-partnership in December, 1886, in a contract given by the city of Brooklyn to Berau for the removal of garbage from the streets of the city of Brooklyn. The name.of the firm was Henry Berau. The contract was subsequently enlarged and the partners commenced their employment. The usage of the parties was to settle monthly. The business continued until February 12,1892, when the co-partners had a full settlement. The complaint is framed upon a general allegation made by the plaintiff that the defendant took from the partnership funds large sums of money with which to protect the partnership interests, and that he did not so use the money ; but that the money was taken by defendant under a false allegation that the sums were needed, but that no payments were ever made, and the money was retained by the defendant for his own use. The defendant denied the allegations of the complaint. Upon the trial the general allegations became, by the evidence, specific. The plaintiff testified that the defendant, at the'commencement of the partnership, told him that four per cent, of the total amount of the receipts for the city work under the contract must be paid to certain unnamed persons described as “ them parties in Willoughby street.”

The plaintiff asked who they "were and the defendant told him he would learn later. Four or five months after the contract commenced, the defendant told the plaintiff that the four per cent, amounted to $3,000, and “ they want some money." Thereupon the plaintiff testifies he got $1,500 and gave it'to the ■defendant; that defendant put his $1,500 with it and gave the bundle to Mr. Wernberg in his, plaintiff’s, presence. No direction was given as to its deposit beyond this; that it was to be .given to a person who should present a card with H. B. on it written by the defendant. This transaction stands alone and has a, vital, even controlling intent upon the other payments claimed to have been subsequently made. The defendant denies the ■statement entirely in a sentence; “ that is not true, that is false.” Mr. Wernberg is called and he states that the plaintiff left the package of $3,000 with a card marked H. B. That he has no recollection who presented the duplicate card or to whom he paid the moneys. That he believes the defendant was not present. .A careful reading of the testimony of Mr. Wernberg leads to the. conclusion that the plaintiff’s narrative gave the true account of the $3,000. There was a package of $3,000. There were two -cards printed H. B. The package contained one and the other "was to be givén to some one as a voucher by which Mr. Wernberg ■■should be authorized to give the money. It is an easy inference that the money was returned to the defendant. He had the authority to get it and gave it to some one or used it himself. He is responsible until he shows a payment to some other person. If four per cent was to be paid to some one, its payment would absolve the defendant; he has the keys of knowledge as I read the eyidenceof plaintiff and Wernberg.

The evidence between the parties as to- the subsequent payment is equally contradictory. The plaintiff says that four per cent was paid yearly to defendant under the same pretense. That when an additional contract was obtained there was $916 due and payable each month, and that one-half of this $458 was paid in ■cash by the plaintiff to the defendant. The plaintiff is supported by his son. The son states that on two occasions he paid defendant for his father $458 ; that on one or several occasions he .saw his .father pay over money to defendant; that the defendant on some occasions urged him to tell his father that “those people want the money,” and that he went to the bank to draw money on his father’s checks. These checks were rejected, although the-fact that the $458 cash was paid obtained by the checks.

Under this evidence, if the $3,000 was paid Wernberg all others were. That payment established the four per cent basis, and with the evidence of the plaintiff and his son as to the remaining payments they should be believed as against the defendant,, who contradicts not only these witnesses but Mr. Wernberg as well. Ho money was to be or was paid to gentlemen in Willoughby street. That was only an excuse to get this considerable sum of money from his partner.

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

Btkmah and Pratt, JJ., concur.


author: Barnard, P. J. Peatt, J.

text:
    The People, Resp’ts, v. George Albow, App’lt

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Criminal law—Green goods.
    Section 527 oí the Penal Code makes it a felony to aid or ahet a scheme to defraud by means of circulars offering for sale paper money or informing anyone where it can be obtained; it is not aimed solely at counterfeit paper money.
    (Pratt, J., dissents.)
    Appeal from judgment of the Dutchess county court of sessions, entered upon conviction „ of defendant for a violation of § 527 of the Penal Code, in that he aided and abetted in a green goods scheme.
    The indictment was as follows:
    “ The grand jury of Dutchess county, by this indictment, accuses George Albow of aiding, abetting and assisting in a scheme of offering, or purporting to offer, for sale and exchange green goods, so called, being paper money, or pretending so to be paper money, by means of circular and letters and telegrams addressed and sent to one Ephraim Cassell, at East Fork post office in the state of Horth Carolina, in the months of December, 1892, and January, 1893, and by which the said Ephraim Cassell and Ira Hogshead were induced to come to the city of Poughkeepsie, in the county of Dutchess and state of New York, to deal with him, said George Albow, therefor, and for that the said George Albow, on the 12th day of February, 1893, at the city of Poughkeepsie, in this county, did state to one Ephraim Cassell that he would take him, said Cassell, and one Hogshead, then and there being, to an old gentleman in the city of New York who had one hundred thousand dollars of goods like a one dollar greenback, so called, being a treasury note issued by the government of the United States of America, and then and there said Albow showed said Cassell said one dollar treasury note as aforesaid, when he, said Ephraim Cassell, could, with said old gentleman, exchange one hundred dollars of his, Cassell’s, money for one thousand dollars of said old gentleman’s money, which said Albow then and there said to said Cassell at said city of Poughkeepsie on said 12th day of February, 1893, was as good as said one dollar bill which he, said Albow, showed to said Ephraim Cassell, and asked said Cassell to go with him at once to said city of New York, and also one Ira Hogshead, to get the said money of the old gentleman, which said money said Albow called and designated as ‘ goods,’ and which offer and statements by said George Albow were to carry out the scheme of selling, or pretending to sell, to said Cassell and said Hogshead 1 paper money ’ or ‘ goods,’ or what was claimed to be such, contrary to § 527 of the Penal Code, and contrary to the form of the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity.
    “Horace D. Hitfcut,
    “District Attorney of the County of Dutchess.”
    Defendant claims that no offense under § 527 is charged, because the indictment did not state or use the words “ counterfeit money.”

      Daniel O' Connell and A. J. Rose, for app’lt; Horace D. Hufcut, dist. att’y, for resp’ts.
   Barnard, P. J.

The section of the Penal Code under which this indictment is framed is not aimed solely at counterfeit paper money. The section was designed to meet a nefarious business which may include counterfeit money, but the persons engaged in it were generally careful to advertise good money which would be sold at much less than the face value. The transaction sometimes resulted in a sudden snatching of the money of the proposed buyer, and a flight with it by the seller or his agent. Sometimes the good money of the buyer was obtained by a package so made up as to represent a package of money, and before its examination the sellerwould disappear. The evil which the legislature intended to prevent is shown in the present case. Some one writes a letter to one Cassell, in South Carolina, under the name of Charles Mansfield, 283 St. Nicholas avenue, N. Y. This letter contains an offer to sell goods so that Cassell could make money. The price is stated to be $3,000' for $300 and larger sums for smaller prices. The place of meeting between buyer and seller was Poughkeepsie, N. Y., where the buyer was to register under an assumed name, at a specified hotel there. Cassell was to send a message by telegram, and this telegraphic message was to be ¡produced by the seller at Poughkeepsie. There was a long and artfully prepared communication to the effect that by the neglect of the officials of the general government there was a fraudulent issue of government paper money. That it seemed to the writer of this communication that duplicate articles were in the possession of New York parties, and that the work of the government could not be detected from the work of “ those people in New York.” Cassell accepted, and was met in Poughkeepsie by the defendant at the place designated, and admitted himself to be the proposed seller who had arranged the meeting. The indictment fairly tells this story. That the defendant by means of circular letters addressed to Cassell offered him paper money, or what was pretended to be paper money. That by means of this letter and circular and contents, Cassell was induced to come to Poughkeepsie to buy of George Albow, the defendant, money or pretended money, and that there he showed a good'$1.00 government bill, and offered to take Cassell to Hew York to an old man who would sell to him' bills like at the rate of $1,000 for $100 of Cassell’s money. These bills he called goods.

By § 527 of the Penal Code it is made a felony to aid or abet a scheme to defraud by means of circulars, offering for sale paper money; informing any one where it could be obtained. The statute in question is strictly followed in and by the indictment.

“ A person * * * who circulates or distributes * * * any letter * * * offering for sale * * * any counterfeit coin, paper money, * * * or other tokens of value, whether called ‘green articles,’ ‘queer coins,’ ‘paper goods,’ ‘bills of spurious treasury notes,’ ‘United States goods,’ ‘green paper goods,’ ‘business that is not legitimate,’ ‘cigars,’ ‘green cigars,’ or by any other name or title, or any other device of a similar character, shall be guilty of a felony.”

The telegraphic messages were properly received. The defendant in his conversation with Cassell admitted that he had sent them.

The conviction should, therefore, be affirmed.

Dykmah, J., cóncurs.

Peatt, J.

(dissenting).—The conviction in this case must be justified, if at all, under § 527 of the Penal Code, which requires the following elements to constitute a crime: The printing, circulation or distribution of a letter, circular, card, pamphlet, hand bill or any other written or printed matter which shall offer or purport to offer for sale, exchange, or as a gift, •counterfeit coin or paper money, or which shall give or purport to give information where counterfeit ■ coin or paper money can be procured, with the intent to defraud, etc.

The indictment contains no allegation that the acts charged were with intent to defraud. It does not say that any act charged had any relation to counterfeit coin or counterfeit paper money. The nearest approach to a charge of anything counterfeit is that the offer related to “green goods, so called, being paper money, or pretending to be paper money; ” * * * that the goods were “ like a one dollar greenback, so called, being u treasury note issued by the government of the United States,” etc. The allegation seems to be that the stuff was money, “being paper money,” “being a treasury note,” etc. This is rather an allegation of the genuineness than the counterfeit character of the stuff.

We are sorry to feel forced to hold that this indictment did not charge a crime, for the evidence strongly tends to show that the defendant ought to have been punished under the section in question.

We, therefore, reverse this conviction; but,'instead of discharging defendant, will order a new trial, thinking that perhaps something may yet be devised to promote justice in the premises.

Conviction affirmed.


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    In the Matter of the Probate of the alleged will of Adeline D. Bernsee, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Will—Execution—Pboof of.
    The attestation clause of the will in question was full and complete. One of the witnesses testified that it was signed in his presence by testatrix, who declared it to be her will, while the other witness testified that liewas asked by testatrix’ son to witness the will; that he asked testatrix if it was her will, to which she nodded assent; that he did not see her sign it, and that he did not remember seeing the signature. Held, that the proof of" execution was sufficient.

      2. Same—Undue influence.
    Undue influence will not be presumed and will not be established by irregularity, nor from the fact that the beneficiary stood in a confidential, relation to the testatrix.
    Appeal from decree of the surrogate of Kings county, readmitting to probate a paper purporting to be the last will of' Adeline D. Bernsee, after a trial at circuit of certain issues of fact and from order denying motion for a flew trial.

      William C. Dewitt, for app’lts; William R. Syme (George G. Reynolds and Daniel Daly, of counsel), for resp’ts.
   Barnard, P. J.

The will was fully proven by the subscribing witnesses to it It was executed the 24th of October, 1890. One witness, Black, testifies that it was signed by the testatrix in his presence and in the presence of the witness Bellows, and that at the time she declared the instrument to be her last will and testament and requested the witnesses to attest it as such. The witness-Bellows makes no real issue with him. He signed his name as a witness. He was asked by Mr. Bernsee if he was willing to sign his mother’s will. He looked at his mother and said, “ Is that your will ? ” holding the paper in his hands. The testatrix nodded her assent. Bellows then requested the witness Black to sign first, which he did, and then Bellows signed. Bellows testifies that hedidn’t see the testatrix sign her name to the will. It makes no difference whether the name of testatrix was signed before she went to Bellows’ office. What transpired is sufficient to prove the-acknowledgment of her signature to the will, if not signed in the witnesses’ presence. This is on the assumption that a real issue is made as to the signature being in Bellows’ presence. The testimony shows the fact to be otherwise. The testatrix’ name is on the will. The attestation clause is full. Bellows does not remember to have seen it. He “took it for granted that everything was right.” He knew he was attesting as a witness that the paper “was her will ” and to give the paper effect and validity.” The testatrix was nervous, but of sound mind. She knew what the instrument was. “If she had not (testifies this witness) I would not have signed it.” She appeared to be under no restraint and was willing to execute the will. The will was so arranged that the testatrix’ name must have been seen when this witness signed it, and the purport of the testimony of the witness is'that he does not remember to have seen it. If that was a material fact his testimony would be wholly insufficient to overcome the facts and circumstances. The execution was made under legal direction. The attestation clause is perfect in form and the witnesses both signed it. The parties met to have a will executed. The witness Bellows knew that it was a will from her declaration and asked if she, testatrix, had left him anything by it. The will was, therefore, fully proven under Matter of Cottrell, 95 N. Y., 329 ; Lane v. Lane, 95 N. Y., 494; Matter of Hunt, 110 N. Y., 278; 18 St. Rep., 118. Under these cases a finding against the execution of the will could not be upheld. The positive oath of one witness with the surrounding facts and circumstances would prevent, as against the failure of memory of the other witness. There is no proof whatever of undue influence in the legal sense of that term. It will not be presumed. It will not be established by irregularity, nor from the fact that the beneficiary stood in a confidential relation to the testatrix. Matter of Smith, 95 N. Y., 516. There is proof that the will was voluntary and perhaps excusing the irregularity in this will.

A short time before the will was made the testatrix lived with one of her daughters, Mrs. Collin. A sou, Frederick Bernsee, also lived there. A quarrel arose between mother and daughter on account of the daughter directing this son to leave the house. The mother said she would go with him, and she did go. There was a dispute over a bed and bedding which her daughters claimed. Mrs. Donohue, another daughter, on this same occasion compelled the mother to open her trunk and made her take out therefrom some blankets, and compelled the mother to go before a police officer and then produced a bill of sale from her for a nominal consideration to Mrs. Collin. The testatrix had forgotten the bill of sale, but was greatly incensed at what she supposed to be insulting to her. All friendly relations ceased between mother and daughters, and this will was made as the mother wished to make it. The question as to the admissibility of one of the beneficiaries, Christopher Bernsee, who was present at the execution of the will, is, under the view I take of the case, immaterial. If improperly admitted no ground of reversal would be furnished. Code, § 2544; Matter of Eysaman, 113 N. Y., 62; 22 St. Rep., 136; Matter of Smith, 95 N. Y., 516.

If the will was proven without his testimony the judgment would not be reversed.

The judgment and order denying new trial should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


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    Sarah M. Quibell, Resp't, v. Peter C. Rust et al., Impl’d with Johh A. Morris, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Parties—Action to set aside deed.
    In an action in equity to set aside a deed given as security to a trustee against a possible claim to be made by his beneficiary because he conveyed .away the life estate at her request without consideration, brought after the death of said beneficiary, her heirs at law and all persons who claim under the deed to the trustee are proper parties.
    Appeal from judgment overruling a demurrer interposed by-defendant, John A. Morris, to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

      C. E. Coddinglon (Alfred B. Cruikshank, of counsel), for appl’t; Rufus L. Scott, for resp’t.
   Barnard, P. J.

The complaint states that the plaintiff was the owner of section “A.” of a farm of land in Westchester county, called the “Wetherby Farm” in a partition map on file in the Westchester county cleric’s office. That she was also the owner of another part of said section “A.” which was subject to a life estate of the mother of plaintiff. That this life estate was held by one Rust as trustee for' the plaintiff’s mother. That she agreed to convey the life estate to the plaintiff, which was done under an agreement between the plaintiff, her mother and the trustee, that the plaintiff should convey the first part of section “A.,” above named, to Rust, to hold in trust during the life of 'the mother, as security against any claim she might make on account of her life estate in the parcel in which she had a life estate, and which she requested Rust to convey to the plaintiff. This deed given by plaintiff to Rust was to have no effect after the life estate fell in, but was then to revert to plaintiff. The mother is dead, and the plaintiff seeks to have her title established in the piece given to Rust, trustee, by her. All the heirs-at-law of the plaintiff’s mother are made parties. The complaint makes John A. Morris a party defendant under the statute, that he has or •claims to have some interest in the property. Morris was properly made a party. The action is one in equity to set aside a deed given as security to a trustee against a possible claim to be made by his beneficiary because he, the trustee, had conveyed away the life estate at her request, without any consideration. The heirs-at-law, and all persons who claim under the deed to the trustee, are properly made parties. The question has recently been considered by the court of appeals in Tovmshend v. Bogert, 126 N. Y., 370; 37 St. Rep., 488. The court held in that case that an averment that certain parties “ claim some right, title or interest in said premises, the exact nature of which is unknown to the plaintiff, and which is a cloud upon the title to-said premises ” was a sufficient statement of a cause of action upon a demurrer.

The order and judgment should, therefore, be affirmed, with •costs.

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


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    The Mutual Life Insurance Co., App’lt, v. Annie Voorhis et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    XiAND GRANTS — MORTGAGE ON UPLAND DOES NOT INCLUDE SUBSEQUENT
    GRANT.
    One V,, who was the owner of certain upland, mortgaged the same to plaintiff and thereafter applied to the commissioners of the land office for and obtained a grant of the land under water adjacent to the mortgaged land. The mortgage was subsequently foreclosed and the land sold to plaintiff. Held, that the foreclosure sale gave plaintiff no right to the land under water; that if any right was obtained by such sale, it was one to sue for damages for an injury to the right of the upland to go to the river.
    Appeal from judgment dismissing the complaint
    Action to procure an adjudication that certain lands under water, granted by the state to the mortgagor, and adjacent to the upland property described in the mortgage, were covered by said mortgage.

      Merritt E. Sawyer, for app’lt; Mathias Banta (Arthur T. Hoffman, of counsel), for resp’ts Voorhis and Green; John M. Rider, for other resp’ts.
   Barnard, P. J.

Peter Voorhis owned a lot of land in Nyack, Rockland county, bounded on the east by the Hudson river. On the 25th of April, 1872, he executed a mortgage, in which his wife joined, to the plaintiff to secure a loan of $40,000. This mortgage was foreclosed, "and on the 9th of November, 1880, was sold under a decree in the foreclosure action. The plaintiff bought in the property for $10,000, and duly entered a judgment for the defi: ciency, which was $32,853.40, on the 9th of December, 1880. On the 30th day of November, 1872, Peter Yoorhis applied to the commissioners of the land office for a grant of land under water adjacent to this mortgaged property, and also in front of two other pieces he owned adjoining the same. The grant was made upon the petition of Yoorhis that he was the owner of the upland and in occupation of the same, and that the grant was needed for the beneficial enjoyment of the adjoining uplands for shipping stone quarried on the uplands, and that the petitioner intended to build a dock for public steamboat uses and general purposes. Upon due publication of the notice of application, the People of the state of New York granted the lands under water “for the purpose of promoting the commerce of our said state, or for the beneficial enjoyment of the adjacent owner,” on the 23d of July, 1873. Peter Yoorhis died in the next year. The defendants are the heirs-at-law of the deceased. The question is what interest the facts gave the plaintiff in the lands under water in front of the mortgaged upland. A grant to any other person than the upland owner is void. Chapter 283, Laws of 1850.

The applicant, Yoorhis, was the owner of the land up to the sale under foreclosure. Before that time the mortgage was simply a security. He had no other interest in the land than to be paid out of it. Morris v. Mowatt, 2 Paige, 586; Waring v. Smyth, 2 Barb. Ch., 119; Astor v. Miller, 2 Paige, 68; A star v. Hoyt, 5 Wend., 603 ; Gardner v. Heard, 3 Den., 232 ; Calkins v. Calkins, 3 Barb., 305. The description in the mortgage did not include the lands under water. When it was given Yoorhis, the mortgagor, had no interest in it. The lands belonged to the state. People ex rel Loomis v. Canal Appraisers, 35 N. Y., 461; Ledyard v. Ten Eyck, 36 Barb., 102.

The court of appeals in Gould v. H. R. R. R. Co.; 6 N. Y., 522, held that the owner of the upland had no other right than all others in the lands under water, and while this principle is questioned in Rumsey v. New York & New England R. R. Co., 133 N. Y., 79; 44 St. Rep., 248, no question is made as to the title being in the people as to the lands between high water, mark and under water. Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y., 453 ; 23 St. Rep., 928; People v. N. Y. & S. I. Ferry Co., 68 N. Y., 71; B. M. Co. v. B. S. I. Works, 129 N. Y., 155; 41 St. Rep. 178.

The foreclosure sale did not, therefore, extend a title in lands not covered by it.. The mortgaged lands were not extended by the mortgage being on tide water, as the lands under water then belonged to the sovereign. The title Voorhis took was absolute and unconditional. Abbott v. Curran, 96 N. Y., 665.

The patentee being the owner of the upland thereof got a good title, and if any right was obtained by the foreclosure sale it was a. right to sue for damages for an injury to the right of the upland to go to the river. This right was destroyed by the upland owner himself and the mortgagee got the land covered by the mortgage. The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


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    Horace W. Garland et al., Resp’ts, v. Cortlandt S. Van Rensselaer et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Pleading—Demurrer—Judgment.
    A demurrer to the complaint was overruled and judgment ordered for plaintiffs with leave to defendant to answer within twenty days on payment of costs, which permission was not acted upon, and' judgment was entered hy plaintiffs. Held, that the order for judgment was a sufficient decision under § 1010 of the Code, and was final if the terms were not accepted, and that the judgment was regular under § 1021 for that reason.
    Appeal from order denying motion to vacate a j udgment in favor of plaintiffs.

      Howard Allison, for app’lts; Charles P. Cowles and Justus A. B. Cowles, for resp’ts.
   Barnard, P. J.

The defendant Van Bensselaer demurred to the complaint of the plaintiff. The demurrer was overruled and judgment ordered in favor of the plaintiffs therein with leave to the defendant to answer within twenty days, upon the payment of twenty dollars costs. The order was entered on the 28th day of January, 1893, and a copy with notice of the entry thereof was served on the attorney for the defendant on the 3rd. of February, 1893. The costs were not paid and no answer was served within the time. The plaintiff entered judgment upon the demurrer in his favor March 1, 1893. The demurring defendant made a motion to set aside this judgment as irregular, in that no decision had been made and filed under §§ 1010 and 1021 of the Code. The order for judgment was a sufficient decision under § 1010 Code. Eaton v. Wells, 82 N. Y., 576; Wood v. Lary, 124 N. Y., 83; 35 St. Rep., 53.

The order for judgment was final if the terms were not accepted and the judgment was regular under § 1021 for that reason.

The order should be affirmed, with costs and disbursements. Pratt, J., concurs; Dykmaüt, J., not sitting.


text:
    Olivia M. Clifford, App’lt, v. Sarah A. Gates et al. Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Deed—Mortgage.
    In an action to haYe a deed of an undivided interest in real estate, a’bso lute in form, declared to be a mortgage, it was claimed that it was given to secure a loan for five years and that the grantee executed a defeasance, which had been lost. Mo provision for the payment of interest was made and none was ever demanded or paid, and no claim was made that it was a mere security until seventeen years after it was given, when all hut one of the persons besides plaintiff’s family who had knowledge had died, and such person testified that he had no recollection that anything was said about a redemption, or that it was anything but an unconditional sale. It also appeared that a year after the deed was given the grantor conveyed a similar interest for the amount of the alleged loan. Held, that the evidence was not clear and convincing beyond reasonable controversy that the deed was intended as a mortgage, and that the complaint was properly dismissed.
    Appeal from judgment dismissing the complaint on the merits.
    The following is the opinion at special term:
    Childs, J.—On the first day of October, 1875, the plaintiff, Olivia M. Clifford, was seized in fee of the undivided one-half part of the parcel of land situated in the city of Buffalo, known as Ellieott square; the whole of said Ellieott square, so called, being in the possession of others, under a lease which expired in August, 1892, and produced no income save a ground rent of one thousand dollars per annum, which was divided among the several owners of said parcel of land. On said first day of October, 1875, said plaintiff made, executed and delivered to George B. Gates a full covenant warranty deed, in which her husband, John C. Clifford, joined, by which said plaintiff conveyed to said George B. Gates the undivided one-fourth part of said Ellieott square, for the consideration, expressed in said deed, of §30,000. Upon the execution and delivery of said deed, George B. Gates, paid to said Olivia M. Clifford, the full sum of §30,000, and upon the same day procured said deed to be recorded in the clerk’s office of Erie county. Subsequently, and on the 27th day of June, 1880, said George B. Gates departed this life, leaving the defendant, Sarah A. Gates, his widow, and the other defendants, his children, him surviving; also leaving a last will and testament which has been duly admitted to probate by and before the surrogate of the county of Erie, and of which said defendants are the executrices.
    The plaintiff has brought this action for the purpose of procuring an adjudication to the effect that the deed of conveyance so made, executed and delivered by her to said George B. Gates was so executed and delivered for the purpose of securing a loan of §30,000, and not as an absolute conveyance of the title of the premises therein described to said Gates. The claim of the plaintiff is, that just prior to October 1, 1875, she applied to said George B. Gates for the loan of the sum of $30,000, the payment of which she proposed to secure by a mortgage upon the undivided one-fourth part of said Ellicott square. That during the negotiations for said loan Gates informed her that he was willing to make the same, but should require a deed of the premises as security therefor instead of a mortgage, and that the plaintiff could have five years within which to repay the sum so loaned, and redeem the premises so conveyed. That in pursuance of such requirement, and solely for the purpose of securing such loan, she executed and delivered the conveyance referred to.
    In support of this claim, John 0. Clifford, the husband of the plaintiff, has testified that he was present with the plaintiff at all times during the negotiations between her and said Gates for said loan. That Gates assented to the plaintiff’s request for the loan, at the same time stating that, instead of a mortgage, he should require a conveyance of the premises offered as security therefor; stating in the same connection that the plaintiff should have five years within which to repay said loan and redeem the premises conveyed and that it was finally agreed between said parties that the transaction should be consummated in that form, and that subsequently the parties met in the office of Mr. Bowen for the purpose of completing the same; that upon that occasion a deed, which had been before that prepared, was produced to be executed by the plaintiff ; that the plaintiff objected to executing such deed, as the arrangement between herself and Gates for the redemption of the property conveyed was not in writing' provided for. That after some conversation between Gates and the plaintiff, in which Gates stated that the understanding between himself and the plaintiff would be observed by him, the plaintiff executed and delivered the deed and received Gates’ check for the sum of money named therein as a consideration. That afterwards, and on the same day, Gates, the plaintiff and the witness, together with their son, went to the bank of Buffalo for the purpose of procuring the money upon said check. That after reaching the bank the question of redemption was again raised by the plaintiff and that she stated in substance that she desired some written evidence of her right to redeem. That after some conversation between her and Gates, Gates retired to another room, and upon returning presented to the plaintiff a paper writing, the contents of which are stated by the witness to have been in substance as follows: “ Mrs.
    Olivia M. Clifford, You may redeem your interest in the Ellicott Square, deeded to me, on payment of $30,000 and interest within five years from date.” It was dated and signed George B. Gates. This witness further testifies that this paper was delivered to him by the plaintiff and that he placed the same, with other papers, in a safe in his residence in the city of New York. That subsequently, and about the year 1880, he saw said paper for the first and last time since the same was delivered to him by the plaintiff. That since about the time of the commencement of this action he has made diligent search for the purpose of finding said paper, but has been unable to do so, the same being lost
    William O. B. Clifford, a son of the plaintiff, was called and testified that he was present with his father and mother at the office of Mr Bowen at the time of tbe execution and delivery of the deed in question, and was also present at the Bank of Buffalo upon the occasion referred to, when plaintiff obtained the money on the Gates check, and his testimony tends to corroborate the statement made by his father. He also statés that in about 1880 he saw the paper given to the plaintiff by Gates in the Bank of Buffalo in the possession of his father in the city of New York. The testimony of this witness is much weakened by the conceded fact that at the time of the transaction testified to by him he was of the age of but twelve years. It does not appear that this child was taken into the confidence of his father and mother, and consulted with reference to the transfer of this property, either as security or otherwise, or that his attention was specially directed to any part of the transaction between the interested parties, and it is quite inconceivable that a child of that age should observe with such care as to be able to state, after this lapse of time, a transaction of this character, preserving all the technical distinctions which would convert a deed, absolute on its face, into a mortgage security. It is more in consonance with our observation and experience to believe that this child would be more likely tó occupy his time in observing and considering such matters as would naturally engage the attention of one of his age, and we are not impressed with the idea that the statement made by him as a witness, for the reason stated, materially strengthens that made by his father. There are no circumstances appearing in this case which tend to corroborate the plaintiff’s claim, and if sustained, it must be wholly upon the testimony of the two witnesses named; whilst, upon the other hand, there are many circumstances which may properly be resorted to for the purpose of determining the question in issue. And first, it appears that no arrangement was made by which Gates was to receive interest upon the $30,000 paid by him to the plaintiff annually, semi-annually, or at any stated time.

      Second. The owner in fee of the premises in question could receive no return by way of income therefrom for a period of seventeen years following the date of the conveyance in question.

      Third. In the year 1875, the plaintiff, through her said husband, offered to sell an undivided one-fourth of said Ellicott Square, to Joseph Bork, for the sum of $35,000, which offer said Boric declined to accept.

      Fourth. An undivided one-fourth of said Ellicott square was sold and conveyed by this plaintiff, to Judge Smith, in 1876, for a consideration of thirty thousand dollars.

      Fifth. The plaintiff has never paid or offered to pay, neither has Gates or any person in his behalf requested or required her to pay, any interest upon said sum of $30,000.

      Sixth. The plaintiff first made the claim now urged by her at the time of the commencement of this action, in 1892; prior to that time she had not requested the successors to the title of George B. Gates to recognize her rights as a mortgagor of said property, or in any manner acquainted them with the fact that she claimed to sustain that relation to the property in question.
    The fact that Gates would be legally entitled to interest upon the sum advanced, if a loan, does not affect the extraordinary character of a transaction such as the plaintiff claims this to have been. It was understood by the parties that the income from the rental of premises would remain the same for the seventeen years following the conveyance, and was but a small fraction of the lawful interest upon the sum advanced. In view of this fact we should scarcely expect a person possessing business capacity and sagacity equal to the accumulation of that amount, to loan $30,000 upon a contract containing no definite provision for the payment of interest, especially so, if he with his own hand prepared a paper which amounted to a defeasance, and defined the right of plaintiff to redeem. Considering that at about the same date of this transaction the plaintiff offered to sell and convey the same interest in Ellicott square, as was conveyed to Gates, for the sum of $35,000, and that she did sell and convey a like interest in 1876 for $30,000, the conviction grows upon one that the omission of Gates to provide for the regular payment of interest upon the $30,000 paid by him to plaintiff was not an oversight or due to lax business methods, but was rather an omission expressive of the true character of the transaction, and this view is rendered quite certain when the conveyance is found to be absolute in its terms, and to contain, not only covenants of warranty, but of seizin free and clear of incumbrance, and the further facts are "considered, that no claim was made by Gates, during his lifetime, for the payment of interest, and that none has been made by the defendants since his decease, and that until the commencement of .this action in 1892 no claim was made by the plaintiff, or any person in her behalf, inconsistent with the plain terms of her conveyance to Gates.
    In addition to these circumstances, or facts, the existence of which does not depend upon the opinion, recollection or non recollection of any witness, it is required that the testimony of the witnesses who have spoken upon the question of the value, in 1875, of the premises in question, should be examined, for the apparent reason that if of no greater value than the sum advanced by Gates, that fact would go far to indicate a purchase by him, rather than a loan to the amount of the full value of the premises pledged as security. Upon this question the witnesses Smith and Gorham agree that the fair market value of the premises in October, 1875, was $30,000. Judge Smith was at that time the owner of a portion of Ellicott square, and had had his attention sharply called to the question of value, and in 1876 he became the owner by purchase from plaintiff of an additional one-fourth interest therein. Mr.. Gorham’s attention had in a professional capacity been particularly called to the same question. The witness, Boric, places the value at $60,000, but his testimony is much weakened by his additional statement that, at the very time referred to, the interest spoken of was offered to him by the.plaintiff, through her husband, for $35,000, and that he declined to become a purchaser at that price. Giving to his testimony the weight to which it seems fairly entitled, it seems to establish the fact that Gates advanced to the plaintiff a sum equal to the fair market value of the property conveyed, and by that much to support the claim of the defendants as to the intended absolute conveyance of the property.
    But a single other piece of testimony, bearing upon the transaction in question, remains to be considered. Mr. Gates, Mr. Bowen, Mr. Tanner, Mr. Stevens, all of the persons, aside from Mr. Locke and the plaintiff, and her husband and son, who had any knowledge of the transaction, have long since died. The survivors, save the plaintiff, who is not permitted to testify to the transaction, have been called as witnesses, and have given their version of the matter as they now claim to remember it. It is unnecessary to further refer to the statements of Mr. Clifford and his son, save in connection with that of Mr. Locke.
    The statement of Mr. Clifford is to the effect that upon arriving -at the office of Mr. Bowen, the deed to Gates was produced for execution ; that Mrs. Clifford, after examining the same, declined to execute it for the reason that the agreement for redemption was not embodied in it; that Mr. Bowen interfered, and objected to such an arrangement; that Gates and Mrs. Clifford withdrew to another part of the room, and after a whispered conversation Mrs. Clifford ■executed the deed; that the real agreement between the parties was concealed from Mr. Bowen, and the paper executed with the understanding on his part that the transaction was what the paper on its face imported.
    The statement of Mr. Locke, referring to the same transaction, is to the effect that he was present when plaintiff came to the office, to execute the deed; that she said nothing in reference to any right to redeem ; that she had no consultation, whispered or otherwise, with Gates, but did object to executing the deed because of some injunction laid upon her by her father, from whom she obtained the property, in regard to "disposing of the same; that finally, overcome by her feelings, she left the office without executing the deed. Mr. Locke further states that whilst unable to recollect all that took place upon the occasion referred to, he does recollect that nothing was said in his presence in reference to a redemption, by the plaintiff, of the land conveyed, •or to the effect that the deed then executed was other than an absolute conveyance of the land described to Gates as the purchaser thereof.
    It will be observed that these statements differ so materially as to the occurrence related that they cannot well be harmonized; one supports the plaintiff’s contention, and the other as conclusively disputes it Upon one side the testimony is from witnesses who must be, naturally, deeply interested in the success of the plaintiff, and upon the other from a witness having no interest growing out of relationship to the parties, or otherwise, in this controversy. Upon one side the testimony is given with circumstantial details which, after the lapse of seventeen years, is somewhat unusual; upon the other with that care which recognizes the infirmity of human recollection, and by that much fails to cover the whole transaction in detail. In this situation, and after patient and careful examination, the conclusion seems to be required that upon the main question the testimony of the defendants ought to prevail when considered only in connection with the conveyance under which they hold, but that when considered with the other facts and circumstances in the case to which allusion has been made, the last doubt disappears, and the conclusion is irresistably forced that the transaction between the defendants' ancestor and the plaintiff was an unconditional sale of the property described in the deed and that they have succeeded to the title in fee of the same.
    It has been suggested that the transaction, as testified to by Clifford, amounted to a conditional sale, and not to a mortgaging of the plaintiff’s property to secure a loan. In the view taken of the testimony in the case, it becomes unnecessary to examine this question. The case presents but a single question of fact, and that has been examined with care, and with the result stated, and this opinion may be concluded without citing authorities to sustain the well settled rule, that to overcome the effect of a deed and turn it into a mortgage, the evidence must be clear and convincing beyond reasonable controversy. Such evidence the plaintiff has failed to produce, and the defendants have made it very satisfactorily appear that such never existed.
    The defendants must have judgment dismissing the plaintiff’s complaint on the merits, with costs.

      Cook & Fitzgerald, for app’lt; Rogers, Locke & Milburn, for resp’ts
   Judgment affirmed, with costs, on the opinion of Childs, J., at special term.

Lewis, Haight and Bradley, JJ., concur.


text:
    Peter McGarry, Resp’t, v. The City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    New teial—Misconduct op jueob.
    At the empanelling of a jury in an action against the city, the plaintiff’s counsel asked the jurors if any of them had now or ever had any business relations with the city attorney’s office, either as client or otherwise, to which no reply was made; he then stated that he would take it for granted that none of them had any such relations with any one connected with the city attorney’s office or corporation counsel, and no juror made reply. One of the jurors was a livery stable keeper, and furnished the law department with horses and carriages under the patronage of the corporation counsel. Said juror claims that the question was addressed generally to the jurors; that no reference was made to the corporation counsel, but had i reference to the city attorney, and that he had a distinct recollection of the ■ matter as he was expecting the question would be asked whether he had business with the corporation counsel’s office, as he had been in other cases. Feld, that whichever question was asked the juror knew the purpose of the inquiry and the information which was desired, and it was his duty to make the disclosure, and that his failure to do so was such legal misconduct as entitled plaintiff to a new trial.

      Appeal from order setting aside a verdict for defendant and granting a new trial.
    Action to recover for injuries alleged to have been caused by defendant’s negligence.
    The following is the opinion of the court below:
    Childs, J.—Upon the trial of this action the jury rendered a verdict in favor of the defendant, and the plaintiff now moves upon the minutes of the court, also upon an affidavit and notice to the defendant, for a new trial, first, for the alleged misconduct of a juror; and, second, upon the ground that the verdict is against the evidence.
    In support of the first ground the affidavit of the plaintiff’s attorney has been read, from which it appears that at the time the jury was empanelled to try this case. said attorney “ asked the jurors if any of them had now, or ever had, any business relations with any one connected with the city attorney’s office, either as client or otherwise; that no juror made any reply to such inquiry. That deponent then said: ‘If any juror has had any such business relations of any kind will you please let me know ;’ that no juror made any reply to such inquiry, and deponent then said to the jury he would take it for granted that none of them had any such relations with any one connected with the city attorney’s office or corporation counsel unless they let him know to the contrary, and no juror made any reply to such statement.”
    The affidavit of Charles S. Hatch, read, by the plaintiff, shows that Michael Dirnberger, one of the jurors upon the trial of this action, keeps a livery stable in the city of Buffalo, and furnishes the law department with horses and carriages and general livery under the patronage and direction of the corporation counsel. That such patronage is valuable, and amounts to several hundreds of dollars per year. That from an examination of the proceedings of the common council it appears that the bills paid to said Dirnberger were from $35 to $48.50 each, and that on the 15th day of February, 1892, four days after the verdict was rendered in this action, a bill of $42.50 was ordered paid to him.
    The defendant, in opposition to this motion, read the affidavits of said juror, Michael Dirnberger, of Frederick Buss, a detective in the office of the corporation counsel, and of others, to which it will not be necessary to refer at length*in disposing of this motion.
    The juror Dirnberger, in his affidavit, states “that he remembers what occurred when the jurors were drawn; that he remembers the examination of the jurors by the plaintiff’s attorney; that no questions were asked of individual jurors by said attorney; that what was asked was addressed generally to all the jurors; that in such examination by said attorney, no reference was made to corporation counsel Browne or to the office; that said attorney asked the jurors if they were acquainted with the city attorney, Mr. Laing, and if they had any business relations with him; that all of the questions asked by said attorney referred to said Laing exclusively; that deponent has a distinct recollection of the examination by the plaintiff’s attorney, because he expected that question would be asked by said attorney which would require him to state that he had had business with the corporation counsel’s office. That deponent also expected that questions would be asked regarding his acquaintanceship with the corporation counsel. That in all the other cases where deponent had been called as a juror dui'ing that term the attorneys had asked numerous questions of that kind, and deponent expected such questions would be asked in this case. That deponent was prepared to answer such questions to the effect that he was well acquainted with said Browne, and that he had done business with the corporation counsel's office, but no question was asked by the plaintiff’s attorney which called for any such answer.”
    It is further stated in said affidavit that the juror’s acquaintance with the corporation counsel and his business relations with that office did not in any way affect him in the consideration of this case.
    Russ, the detective employed in the corporation counsel’s office, in his affidavit, states: “That plaintiff’s counsel did not ask said Dirnberger, or any of said jurors, if he or any of them had now or ever had any business relations with any one connected with the city attorney’s office, either as clients or otherwise. That said counsel asked the jurors if they were acquainted with the city attorney, Laing, and whether be had done any business for them of any kind. That the examination of the jurors was general, and was very brief on the part of the plaintiff’s counsel, and deponent has the positive recollection that there was no question asked by the plaintiff’s counsel of the jurors as to whether they bad any business relations with the corporation counsel’s office, or any one in his office, excepting such Laing. That one reason why deponent is able to recall what occurred at that time is that he knew that said Dirnberger and one or two other jurors were acquainted with the corporation counsel Browne, and deponent expected that such questions would be asked by plaintiff’s counsel.”
    The remaining affidavits read by the defendant need not be referred to in disposing of the questions presented by the plaintiff. The affidavits of the plaintiff’s attorney, the juror and Russ, as quoted, present the facts from which it must be determined whether the plaintiff has had a trial of his case by such a jury as he was entitled to by law. The plaintiff was entitled to have his case passed upon by a jury no one of whom, from any interest in the subject matter of the litigation, or from any connection with any adverse party to the action or the attorney of such a party, could justly be supposed to be influenced, in any degree, by such connection or interest against the plaintiff's cause. He was entitled to examine the jurors called to try his case for the purpose of ascertaining whether or not any juror, so drawn, was fairly disqualified under the rule as stated, and he was further, in case such examination did not disclose a bias calling upon the court to excuse the juror, entitled to his peremptory challenge in case he believed, from such examination, that the relation of the juror might be unconsciously influenced to his prejudice.
    The affidavits quoted show that the plaintiff by his attorney sought to exercise this right and tend to show that he was deprived of its complete exercise by the failure of a juror to respond to a fair question calling for a disclosure of his relations with those engaged in promoting the interest of the defendant. The plain purpose of the plaintiff was to ascertain if any juror sustained such relations to the law department or officers of the defendant as would, in the opinion of counsel, make it improper for such juror to sit, and hence the inquiry as stated by him in this affidavit already quoted, whether any of the jurors then had or ever had any business relations with any one connected with the city attorney’s office, either as clients or otherwise. This question elicited no reply and was followed by the statement of plaintiff’s attorney that he would take it for granted that none of them had any such relations unless they let him know to the contrary; to this statement no juror made reply. There is a slight controversy in the affidavits as to the form of question employed by the plaintiff’s attorney. Buss says the question was whether any juror was acquainted with the city attorney, Laing, and whether he had done any business for them of any kind, and in this statement Dirnberger concurs. Whether this was in fact the question is a matter of little importance, as the question in either form called for a fair and frank disclosure on the part of every juror of any relation existing between such juror and the law department of the defendant, and there is no rule which will deprive the plaintiff of his right to such a disclosure because he used the words “city attorney” instead of “corporation counsel.” That the purpose of the inquiry was fully understood by the juror Dirnberger is made very plain by the statement in his affidavit that “ he expected that question would be asked by said attorney which would require hjm to state that he had had business with the corporation counsel’s office.” That he “ expected that question would be asked regarding his acquaintanceship with the corporation counsel,” “ but no question was asked by the plaintiff's attorney which called for any such answer.” And Buss says that the reason why he can recall “ what occurred at that time is that he knew that said Dirnberger and one or two other jurors were acquainted with the corporation counsel Browne, and deponent expected that such questions would be asked by plaintiff’s counsel.”
    In view of these statements, as before stated, it is a matter of but little importance which question was asked by the plaintiff’s attorney. The juror knew the purpose of the inquiry and the information which was desired, and it was his duty to make the disclosure which would probably have led to his being excused from the jury. Moreover, it is the plain inference from the affidavit of Buss that he knew that this juror was in the employ, to some extent, of the defendant through its “ corporation counsel,” and with this in mind gave particular attention to the examination of the jury, for the purpose of ascertaining whether the plaintiff’s attorney asked the precise question calling for a disclosure of this relation between the juror and the corporation counsel. By this joint act, or rather failure to speak, on the part of the juror and the agent of the city, when fair dealing required the disclosure to be made, the plaintiff has, at least, been deprived of the right to reject from the jury one whose relations to the defendant were of such a character as to justify, if not require such action. The result of this act on the part of the juror has been to deprive the plaintiff of a legal right The act was, therefore, such legal misconduct on the part of the juror as to entitle the plaintiff to a new trial.
    It is not intended to indicate that the conduct of the juror Dirnberger was corrupt, and it may not be stated with any certainty that his presence upon the jury improperly influenced the verdict, but it is desirable that in the formation of a jury every legal right shall be preserved to a party, to the end that the verdict when recorded shall be understood to be the result of the unbiased judgment of the panel. There may be a suspicion that such a verdict has not been reached in this case, and that remaining, it is the duty of the court to permit another trial of this action.
    In Knight v. Freeport, 13 Mass., 218, a motion for a new trial was granted because the son-in-law of the plaintiff and a witness in the case made a remark to one of the jurors. The court, in disposing of the motion, says: “ It is not necessary to show that the mind of the juror, thus tampered with, was influenced by this attempt. Perhaps it is not in his power to say whether it was influenced or not If he was, there is sufficient cause to set aside the verdict; and, if he was not, and the party who has gained the verdict has a good cause, he will still be entitled to a verdict upon another trial. We cannot be too strict in guarding trials by jury from improper influence. This strictness is necessary to give due confidence to parties in the result of their causes; and every one ought to know that, for even the least intermeddling with jurors, a verdict will always be set aside.”
    The remarks of this learned judge have their plain application to the case in hand, and to any case where the complaining party is, by the act of the juror or the silence of those who ought in good conscience to speak, led to accept a juror who may be by his - interest even unconsciously influenced against such party. We have seen that this describes the position of the plaintiff here, and it is much better that the expense of a new trial be incurred than that a verdict reached in a manner open to the least suspicion should be permitted to stand.
    This conclusion renders it unnecessary to examine the second ground upon which this motion is made; a new trial being had, it perhaps should not be influenced by any unnecessary expression of opinion upon the merits.
    An order may be entered setting aside the verdict of the jury, and permitting a new trial of this action.

      George M. Browne (Philip A. Laing, of counsel), for app’lt; Wm. W. Hammond, for resp’t.
   Order appealed from affirmed, with costs, on the opinion of Childs, J., at circuit.

Dwight, P. J., Macomber, Lewis and Haight, JJ., concur.