author: Hardin, J.:

text:
    WATSON M. ROGERS, as Executor, etc., Respondent, v. GEORGE IVERS, FRANCES M. FOX, JOHN M. FOX and JEREMIAH BAUDER (Purchaser), Respondents, and ALEXANDER KANNADY, Appellant.

      Foreclosure of mortgages — a judgment creditor may attach the validity of conveyances, upon a reference for disti’ibution of surplus money —when one defendant cannot establish the validity of his lien as against a defaulting co-defendant.

    On March 15,1877, the defendants JohnM. Fox and Frances M. Fox, his wife, executed a mortgage upon a farm of 150 acres belonging to John M. Fox to the plaintifi’s testator. Thereafter, and on January 16, 1879, Fox conveyed 100 acres of the land, through a third person, to his wife. On February 1, 1879, four judgments were docketed against John M. Fox, one in favor of the defendant Kannady and three others in favor of persons who thereafter assigned them to him. On February fourteenth, another judgment was docketed against him in favor of the defendant Ivers. In this action, brought to foreclose the said mortgage, the defendant Kannady was served with the summons and the usual notice of object of action, but did not appear or answer. The defendant Frances M. Fox answered and asked that the 100 acres conveyed to her be sold last, and the defendant Ivers answered alleging that the conveyance to her was fraudulent as against creditors. Upon a trial had before a referee he directed a judgment to be, and the same was, by a stipulation of the attorneys, entered, directing a foreclosure of the mortgage and a sale of the premises; that out of the surplus moneys there be paid to Ivers the amount of his judgment and sixty-five dollars costs, and that the balance be paid to Frances M. Fox. No application was made to the court in reference to the entry of a judgment against the defaulting defendant.
    Upon an appeal by the defendant Kannady from an order denying a motion to vacate or modify the judgment and set aside a sale had thereunder:

      Held, that Kannady did not waive his right to contest the validity of the conveyance from Fox to his wife by failing to appear and answer, but was entitled to raise and try that question upon the hearing upon a reference to determine as to the distribution of the surplus moneys.
    That as no copy of the answer of the defendants Fox and Ivers had been served upon him, and as he had not appeared or been heard before the referee, and as the judgment had heen entered without any application having been made to the court, the judgment, in so far as it directed the surplus moneys to bo paid to Ivers and Fox instead of being brought into court, was irregular and unauthorized.
    That the sale should be allowed to stand, but that the defendants Ivers and Fox should be compelled to pay the surplus moneys received by them into court, and that Kannady should be allowed to apply for the appointment of a referee to hear and determine all claims thereto.
    Appear from an order made at Special Term, denying a motion to set aside or modify the judgment entered in this action, or to order a resale of the mortgaged premises described in the complaint and for other relief.
    On the 15th day of March, 1877, the defendant John M. Fox, who then owned a farm of 150 acres of land, and his wife, executed to the plaintiffs’ testator a mortgage to secure the sum of $3,500. On the 16th day of January, 1879, Fox, through the medium of a third party, conyeyed to his wife, the defendant Frances M. Fox, 100 acres of said farm. January 31, 1879, the defendant Kannady recovered a judgment against the said J ohn M. Fox for $57.07, which was docketed in the Jefferson county clerk’s office February 1, 1880, at 9 a. m., and on the same day and hour three other judgment were docketed against the said Fox, which were subsequently assigned to - the defendant Kannady; and on the 3d of February, 1879, another judgment was recovered by one Andrus against the said Fox, and assigned to the said Kannady. On February 1,1879, one George Ivers commenced an action against the said John M. Fox, and at four o’clock in the afternoon of that day filed a notice of pendency in the Jefferson county clerk’s office, stating that an attachment had heen issued therein; and thereafter, and on February 14, 1879, Ivers recovered a judgment therein. Thereafter, and on or about March 3, 1879, this action was commenced to foreclose the said mortgage, to which, all of the said judgment creditors were made parties and who were all served with the summons and usual notice of the object of action in foreclosure cases. No other notice or paper in the action was ever served on the appellant, who did not appear or answer.
    The defendants Francis M. Fox and Ivers answered, the latter alleging that the deed to Mrs. Fox was fraudulent as to creditors; and the former claiming to have the 100 acres conveyed to her sold last. The action was tried hy a referee, who found in favor of the plaintiff and Ivers, and directed a judgment to be entered in accordance with his findings. Thereafter a decree was entered in the action, by agreement between ttie attorneys for plaintiff, Ivers and Fox, adjudging that Ivers’ judgment was a lien on the said premises prior to the deed of Mrs. Fox, and directing a sale of the whole of the mortgaged premises, and that the officer making the sale, after paying the amount due to the plaintiff on his bond and mortgage, and costs, pay to Ivers the amount of his judgment against John M. Fox, with sixty-five dollars costs, and that he pay the remainder of the said surplus to the defendant Frances M. Fox. No application was made to the court in respect to the entry of a judgment against the defaulting defendants. A sale was thereafter had, and the surplus moneys arising thereon were disposed of as directed in the judgment, and never paid over to the county treasurer.

      McCartin de Williams, for the appellant.

      Stephen B. Pratt, for the respondents, the defendant Fox, and Bauder, purchaser.

      Porter & Walts, for the respondent, the defendant Ivers.

      F. Lamsvng, for the plaintiff and respondent.
   Hardin, J.:

The Special Term fell into an error in supposing that upon a reference as to surplus moneys that it could not be determined that the conveyance was fraudulently made of the premises from Fox to a third party, and by him to the wife of Fox, and that Iiannady, a judgment creditor and lienor, had not a standing to make an attack upon such conveyances as fraudulent upon such a reference. (Miller v. Case, Clark’s Chy., 406, and note of cases there cited; Bergen et al. v. Snedeker, 9 Weekly Digest, 320; reversing same case as reported, under title of Snedeker v. Snedeker, 18 Hun, 355 ; S. C., under title of Bergen v. Carman, 79 N. Y., 146, opinion of Miller, J.; Halstead v. Halstead, 55 id., 445.)

We must-, therefore, hold that Kannady, upon a reference to determine as to the application of the surplus moneys arising upon the sale of the mortgaged premises, would be entitled to attack the conveyances as fraudulent, and if successful in the attack have the money paid upon his judgments. It was, therefore, not incumbent upon him to answer, setting up such fraud in the conveyances in order to preserve his right to the surplus moneys as against Mrs. Box, the fraudulent grantee, nor to preserve his standing as to the Ivers judgment. (Chautauque Bank v. Risley, 19 N. Y., 375.) He adopted the better practice by suffering a default as to the foreclosure suit, for the plaintiff ought not to be stayed in his foreclosure, when no defense exists to the mortgage, till a determination be had between júnior incumbrancers of their respective rights as between themselves. (Miller v. Case, supra Mutual, etc., v. Bowen, 47 Barb., 618; Farmer's L. and T. Co. v. Seymour, 9 Paige, 538; Eagle Ins. Co. v. Flanagan, 1 How. Ct. of App. Cases, 311; Code of Civil Procedure, § 521.) Nor can we sanction the practice adopted in this case by Ivers. He put in an answer setting up the invalidity of the conveyances, and served notice of his demand for relief upon the plaintiff and upon Box, but not upon the defendant Kannady. This was a violation of the spirit of section 521 of the Code of Civil Procedure, if not of its letter.

The letter of that section requires a service upon the attorney for each of the defendants to be affected by the determination. If Kannady had appeared in this action he would clearly have been entitled to notice and copy of Ivers’ answer. But as the question of regularity is not before us, we do not pass upon the construction to be given to the letter of the section. As Kannady was in default, not having served an answer, the judgment could not regularly “be more favorable to the plaintiff than that demanded in the complaint.” (Code of Civil Procedure, § 1207.)

If Kannady’s judgments were prior to Ivers’, and to the levy of his attachment, then he had a statutory lien which the court had no power to divest him of at the instance of the plaintiff, or at the instance of the co-defendants. (Chautauque Bank v. Risley, 19 N. Y., 375.)

Certainly no such result should be accomplished in the absence of any demand in the complaint of that character, and in the absence of any notice of any such relief sought by a codefendant. Nor do we think the court had any rightful power to direct the surplus over the plaintiffs mortgage debt to be paid to Ivers and Mrs. Fox. The statute declares that all such surplus moneys “shall be brought into court.” (2 R. S., 192, § 159 ; Denton v. Nanny, 8 Barb., 620 ; Shepard v. O’Neil, 4 id., 126.)

"Whatever the effect of the direction contained in the referee’s report in violation of the statute just quoted may be, as regards Ivers and Mrs. Fox, or the plaintiff in this action (whifeh we do not determine), we think that it cannot have any effect upon the rights of Kannady. He was entitled to have the surplus arising upon the sale after payment of the plaintiff’s mortgage debt and costs brought into court, “ subject to the order of the court,” and had the right to rely upon that provision of the statute.

It is insisted by the learned counsel for the respondent that it was a matter of discretion whether the ‘judgment should be set aside or modified, or whether Kannady should be turned over to an action, and that the order is not appealable. This position is untenable: (1.) If it was discretionary this court may review the exercise of such discretion. The case of Beards v. Wheeler (76 N. Y., 213) merely holds that such a discretionary matter is not reviewable in the Court of Appeals. (See, also, 59 N. Y., 315, “Anonymous.”) (2.) The judgment, if allowed to stand as entered, might embarrass the remedy in another action by way of an estoppel or bar. (3.) The relief to be given can more expeditiously and orderly be obtained upon motion and by means of a reference in this action. (4.) Besides, as we have before seen, a reference may be used to determine the right to surplus moneys; and as the party has sought this mode of relief it is not a good answer to say that he might have another mode.

We are referred to our decision in McLean v. Stewart (14 Hun, 477) in respect to the power of a Special Term to alter or change a decision made upon a trial at a former term. But that case does not question the power of this court to set aside an unauthorized judgment, when the party affected thereby has not been heard or brought before the court for the purpose of considering the questions involved in the judgment. (See Code of Civil Procedure, § 1207.) We are referred to Stevens v. Veriane (2 Lans., 90), and we have examined it and do not find anything there which aids the respondents here. In that case the defendants and plaintiff had been heard before a referee in'a mortgage foreclosure case, and the referee exercised a judicial discretion in awarding costs, and it was very properly held that the court at Special Term could not review, revise or disturb the award of costs made upon and as a part of the trial of the issues. The parties had all been heard, and the discretion of the referee was the law of the case until reversed on appeal. It was binding upon the parties who sought to disturb it at Special Term, and it was very correctly held by the General Term of the fifth district that the Special Term was right in refusing to overhaul the decision made by the referee.

In the case in hand the decision of the referee upon the question of costs, so far as the plaintiff is interested therein, and so far as Fox and wife are interested therein, and so far as Ivers is interested therein, 'or either of them as between themselves, is binding and conclusive until reversed upon appeal, but it is not binding upon the defendant Kannady. The defense set up by Ivers related to a controversy between him and Fox and wife, and not to the claim made by the plaintiff. Iiis success before the referee as against Mrs. Fox, must have been the predicate for the award of sixty-five dollars, the costs to Ivers. As against her, the award presumably is right and must be allowed to stand until questioned by her; but as against Kannady and the judgment represented by him, the determination upon the merits, as well as regards the costs, must be held ineffectual. If an application had been made to the court by the plaintiff or by Ivers and Fox, and a judgment been given thereon as against Kannady and the other defaulted defendants, it might have presented another question. But in the absence of any direction by the court, we ought to hold the determination and award of costs inconclusive as to Kannady. We conclude for the reasons already stated, viz.:

First. The order of the Special Term must be reversed, with ten dollars costs and disbursements, to be paid by Ivers and Mrs. Fox.

Second. The motion made at Special Term should have been granted, setting aside so much of the judgment as to Kannady, and the judgments represented by him, as exceeds the usual and ordinary judgment in foreclosure cases.

Third. The decision of the referee as to the surplus arising upon the sale of tbe premises (after paying tbe mortgage debt and costs), must be held inoperative as between tbe plaintiff and Kannady, and tbe judgment represented by bim, 'and also inoperative between Ivers, Fox and wife, and Kannady, and the judgments represented by bim, so far as it assumes to affect or prejudice the rights of Kannady (as judgment-creditor or as assignee of judgments) in the surplus moneys.

Fov/rth. It must be declared that as to Kannady it was required by statute that the surplus arising from tbe sale be paid into court to await tbe order of tbe court.

Fifth. That as to Kannady and the judgments represented by bim, tbe direction to pay sixty-five dollars costs out of tbe surplus, and the judgment of Ivers out of tbe surplus, and tbe balance thereof to Mrs. Fox, was inoperative and unauthorized.

Sixth. Tbe motion, to tbe extent just stated, should be granted with ten dollars costs against Ivers, Fox and Mrs. Fox.

Seventh. Leave should also be granted to Kannady, Ivers, Mrs. Fox and other defendants to file within twenty days any claim be or they may have to such surplus moneys with tbe clerk of Jefferson county.

Eighth. And Kannady or the other defendants may also, after such claim shall bo filed, apply for tbe appointment of a referee to determine all claims to said surplus moneys, upon notice to tbe plaintiff, tbe defendant Ivers, tbe defendant Fox and bis wife, and all other persons interested therein.

And for an order directing tbe defendant Ivers to pxay into court tbe whole of tbe moneys received by bim out of such surplus, and for an order directing Mrs. Fox to pay into court, by depositing with tbe county treasurer of Jefferson, tbe moneys received by her out of such surplus moneys, to await tbe final award to be made by tbe court, after the determination of all claims to the surplus moneys arising upon such sale. (Code of Civil Procedure, § 1292 and § 1323.)

It will be further provided in tbe order to be entered that the sale stand as valid.

We conclude to reverse the order appealed from, with ten dollars costs and disbursements, and to direct an order to accord in substance with the views already expressed. Tbe terms of tbe order to be settled upon five days’ notice before Justice Hardin, and after being so settled the same shall be entered in Jefferson county clerk’s office.

Talcott, P. J., and Rumsey, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, to be paid by Ivers and Fox and wife, and motion granted with ten dollars costs, as indicated in the opinion of Hardin, J. The order to be settled before Hardin, J., on five days’ notice.


source: Caselaw Access Project

license: Public Domain

text:
    HERBERT WARD, an Infant, etc., Appellant, v. CAROLINE WARD, Respondent, Impleaded, etc.

      Partition — when an 7ieir-at-la/u> may maintain an action for pa/i'tition against a devisee —1853, chap. 238.
    Under chapter 238 of 1853 an heir-at-law may maintain an action for the partition of lands, whereof the deceased died seized, and to procure a judgment declaring invalid and void a devise contained in his will, under and by virtue of which his widow is then in the possession and occupation of the lands, claiming title thereto.
    The act cannot be held unconstitutional on the ground that it allows the question of title to he tried in an action for partition, as a party thereto may, if he so desire, have the issues arising therein settled and tried by a jury on making a timely demand therefor.
    Appeal by the plaintiff from a judgment entered upon a decision made at the Steuben county Special Term dismissing the complaint of the plaintiff with costs.
    The dismissal was based upon the supposed want of jurisdiction in the court to determine the questions presented by the complaint and by the offers and concessions made at the trial. Menzo Ward died April 18, 1874, seized' in fee simple of the lands described in the complaint. He left him surviving his widow Caroline Ward (a defendant) and Herbert Ward, Mary H. Ward and Mina Ward, his children and only heirs-at-law.
    Before his death he made and published his last will and testament, which is set out in the complaint, and after his death it was duly and properly admitted to probate, and it remains of record in the surrogate’s office of Steuben county.
    The will provides as follows : “ First. After all my lawful debts are paid and discharged, I give and bequeath to my son Herbert Ward $900; to my daughter Mary Helena 400, and, finally, to my wife Caroline Ward, after my funeral expenses are paid, the residue, which is to cover the claims of another heir which may be born after my death, she now being enciente, said claim for said heir, if it proves to live and be mine, shall have twenty-five dollars, she the remainder in lieu of dower.”
    It is averred that his personal assets were found “ to pay $174, and no more,” of the legacy of $900 given in the will to Herbert Ward, and that the legacy of $900 has not, nor any part thereof beyond said $174, been paid.
    It is averred that the widow Caroline is in possession of the premises described, and has been since the death of lier said husband Menzo Ward, “claiming to hold said premises under and by virtue of the apparent devise aforesaid, and by no other claim.” “ That said apparent devise' is void.” “ That said devise, so far as real estate is concerned, is void for uncertainty, and that said will contains no sufficient words of conveyance to j>ass the title to said premises to said Caroline Ward.”
    That the other parties are tenants in common in said property, each seized in fee simple of one undivided third part thereof, subject to the right of dower of said Caroline, the widow.

      Hal&es (& Stephens, for the apjiollant.

      William Rvmsey, for the respondent.
   Hardin, J.:

I think chapter 238 of .the Laws of 1853 authorizes this action of partition. The fact that the widow of the testator is in possession of the lands, claiming to own them under an apparent devise, does not deprive the court of jurisdiction. (See MS. opinion in Wager v. Wager, decided at this term, opinion by Hardin, J.) This position is so fully considered and asserted in the authorities that we ought to consider it settled. (Hewlett v. Wood, 62 N. Y., 78, opinion of Miller, J.; and S. C., 1 Hun, 478, opinion of Talcott, J.; Jennings v. Conboy, 10 id., 77; Patterson v. McCunn, 46 How. Pr., 182; Hall v. Hall, 13 Hun, 306; Marvin v. Marvin, 11 Abb. [N. S.], 104, opinion of Grover, J.; Voessing v. Voessing, 12 Hun, 678.)

There is no force in the suggestion that the act of 1853 is unconstitutional, because it allows the title to be determined in such an action of partition. (Shumway v. Shumway, 1 Lans., 474; S. C., 42 N. Y., 143.) If the party desires a trial of issues arising in such an action by a jury, he is entitled thereto by making a timely demand therefor. The Special Term is required to yield to such a demand in a proper case, and send the issues to the Circuit for determination by a jury, and may require the verdict to be certified back to the Special Term, where further relief may be given as the case may require. (Cases, supra, 3 R. S. [5th ed.], 607, § 23.)

In the case here the defendant, by going to a trial in the Special Term, waived her right to demand a jury trial, and cannot now complain that the former, in which she consented to have her case tried, had no jury.

The Special Term erred in dismissing the plaintiff’s complaint for want of jurisdiction in the court to determine the questions sought to be litigated. It seems the invalidity of the will was sufficiently averred, as the defendant went down to trial without questioning the sufficiency of the allegation. (Hewlett v. Wood, 1 Hun, 479.)

This ease, when tried upon the merits, will present nice questions in regard to the construction to be given to the will. First. As to whether the defendant Caroline takes the fee to the real estate under the will, and if that be so, second, whether the money legacies are charged by the will upon the real estate. (Rafferty v. Clark, 1 Brad., 473; Shulters v. Johnson, 38 Barb., 81; Babcock v. Stoddard, 3 N. Y. Sup. Ct. [T. & C.], 207; Kinnier v. Rogers, 42 N. Y., 531; Myers v. Eddy, 47 Barb., 263 ; Archer v. Deneale, 1 Peters, 585; Taylor v. Dodd, 58 N. Y., 335; 2 R. S., 57, § 5, as to construction of wills.)

But as these questions were not discussed and passed upon at the Special Term, we express no opinion thereon.

They may be affected by evidence which may be given upon the trial to aid in the ascertainment of the intention of the testator.

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

Talcott, P. J., concurs; Rumsey, J., not sitting.

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

         See post, p. 439.


text:
    JOHN P. VIDVARD, Appellant, v. DANIEL J. CUSHMAN, Respondent.

      Lease — what a/re inchided in the demised premises — when the lessee’s right to use a stawway is enelume,

    October 25,1878, the plaintiff procured a lease of two stores in a block consisting of five, which was known as “Reynolds’ Building,” for the term of three years, the premises being described as “ the stores known as Nos. 25 and 27 John street, in said city of Utica, including the basement and the first floor above said basement, and the second, third and fourth stories above said basement, with the appurtenances,” etc. Each store was separated from the others by a brick wall extending from the basement to the roof, and in each was originally a stairway extending from the first floor to the attic. In December, 1878, the owner of the stores leased No. 29 to the defendant, agreeing to take out the stairs in that store, cut a hole through the wall so as to communicate with the stairs in No. 27, and to give him the right to use the same. Thereafter the defendant entered into possession of No. 29, and having leased from the plaintiff the third floor of Nos. 25 and 27 was allowed by him to use, without objection, the said stairs in No. 27. Upon the expiration of this lease, the plaintiff, having refused to allow the defendant to use the stairs, brought this action to restrain the defendant from attempting to remove obstructions, placed by the plaintiff therein with the intention of closing the same.
    Held, that the stairs were included in the premises leased to the plaintiff, being covered by the general descriptive words in the lease contained; that his right to the use thereof was exclusive, and that the lessor could not thereafter confer upon the defendant any right to use the same.
    Appeal from two orders granted by Mr. Justice Merwin, at Chambers, tbe one dissolving an injunction in favor of the appellant Vidvard, restraining the respondent Cushman from using the stairway in the stores known as Nos. 25 and 27 John street, in the city of Utica; the other granting an injunction restraining Vidvard from interfering with Cushman’s use of the same stairway.
    The affidavits read by the parties tended to prove the following facts: The “ Reynolds Building ” is a large business block, situated on John street, in the city of Utica. As originally constructed it was divided into five stores, each being separated from the adjoining stores by a brick division wall eighteen inches in thickness, extending from the floor of the basement to the roof, and each being provided with a stairway from the first floor to the attic.
    On the 25th of October, 1878, John P. Vidvard leased the double store known as Nos. 25 and 27, for the term of three years, with the privilege of five, the description in the lease being in the following' language : “ The stores known as Nos. 25 and 27 John street, in said city of Utica, including the basement and the first floor above said basement, and the second, third and fourth stori'es above said basement, with the appurtenances,” etc.
    The stairway in question commences on the first floor of No. 27; it rests on one side against this division wall; on the other side there is a thin plastered partition up to the second floor, and above that floor is a slight board partition. At the time of the lease to Vidvard there was no other stairway in his store.
    On the 1st of December, 1878, Cushman leased No. 29, which, at the time of the lease to Vidvard, and as late as December 15, 1878, had its own stairway extending to the attic;.'/there was also a stairway in No. 31 for the use of the tenants of that store.
    The lease to Cushman gave him equal rights and privileges to the use of the said stairway in No. 27. Doors were made on the first floor and had before existed on the upper floor, communicating from Nos. 29 to 27.
    Soon after Cushman occupied No. 29 he entered into negotiations with Vidvard for the use of the third floor over Nos. 25 and 27, which culminated in a lease of that floor, dated in February, 1879. While Cushman was Vidvard’s tenant he had the free use of Vidvard’s stairway without hindrance or molestation. Thereafter Cushman had the door cut through the brick wall and the stairway in No. 29 removed. In Juné, 1880, the owners of the building took out the brick division .wall between Nos. 29 and 31, tlius making one large store, and on the 1st day of July, 1880, they gave Cushman a lease of this double store.
    In the latter part of July, 1880,. Yidvard laid a floor over the opening made by the stairway in the second story of his store. After this was done, Cushman threatened forcibly to remove the flooring, and in order to prevent him from doing so Yidvard obtained an injunction. Cushman moved to dissolve this injunction, and also moved for an order restraining Yidvard. His motion was granted in both particulars, and from the orders so made an appeal is taken by Yidvard to this court.

      Alfred G. Com, for the appellant.

      Bisley <& StocHdcvrd, for the respondent.

      The case of Daniel J. Cushman, Respondent, v. John P. Vidvard, Appellant, was decided with this case.

   Hardin, J.:

Both parties are tenants in the Reynolds Building, situated on the west side of John street in the city of Utica, and derive their leases from the same source. The lease executed to the plaintiff was prior in point of time to that of the defendant. It was made October 25, 1878, and the descriptive clause therein read, viz.: The stores known as Nos. 25 and 27 John street in the city of Utica, including basement and the second, third and fourth stories above said basement, with appurtenances.” Confessedly, the stairway in cpiestion is located and in store No. 27 and next south of the main wall dividing stores Nos. 27 and 29.

The general words of the lease to the plaintiff presumably cover all of the store known as No. 27, all of the first floor of No. 27, all of the second floor of No. 27, and all of the third floor of No. 27, and in terms no reservation to the proprietors of the store is contained in the lease. (Hay v. Cumberland, 25 Barb., 595.) The proprietors of the stores therefore in terms leased unto the plaintiff all the space between the division or partition wall erected between store No. 27 and store No. 29.

The use made by the defendant of the stairway situated in No. 27 cannot aid the defendant in asserting a construction of the lease of October 25, 1878, to the plaintiff, as the right to use and have and enjoy all of No. 27 was given to the plaintiff, and, therefore, when the defendant became a tenant of one floor of No. 27 he took as an incident and appurtenant to such use the privileges of the stairway. But such privileges cannot be for that reason attached to the right of defendant to use No. 29 under a lease taken from the proprietors of the buildings after the lease made by them to the plaintiff.

The proprietors had carved out of their property all of Nos. 25 and 27, and after that they could give to the defendant no greater or further rights or privileges than remained to them. The original construction of store twenty-nine was such that access could be obtained from the ground to the upper floors without entering upon No. 27. The temporary disuse of such means of access, and the temporary use of No. 27, cannot aid the defendant in asserting a permanent right to use the stairway of No. 27, after the proprietors had leased the same to the plaintiff. The learned judge who granted the injunction concedes, in his opinion, that the lease of twenty-seven is broad enough to carry to the tenant the right to use the stairway situated in No. 27. "Why is this so i Is it not because the stairway was covered by the general description words found in the lease. If that be so, we see nothing in the words used which restricts the use to one in common with the proprietors or their tenants of Nos. 29 and 31. The general words carried to the plaintiff exclusive rights, and in order to make his rights subject to a common use, apt and limiting words should have been used.

We are referred by the learned counsel for the respondent to Lampmam v. Milks (21 N. Y., 505) for the general rule in respect 'to easements which are continuous. It is quite clear that the easement sought to be established in this case would be a discontinuous one; and as it was not necessary to the enjoyment of the property, the rule laid down in that case has no application here. (Roberts v. Roberts, 7 Lans., 57.) The construction contended for by the respondent must fail, as the stairway in question was not necessary to the enjoyment of store twenty-nine, and did not attach as an incident and appurtenant of store twenty-nine. (McDonald v. Lindan, 3 Rawle, 492; McAdam on Landlord and Tenant, 161; Simmons v. Cloonan, 47 N. Y., 14; Huttemeier v. Albro, 18 id., 48; Havens v. Klein, 51 How., 85.)

The practical incidents belonging to property of the block at tbe time the appellant’s lease was executed, indicate that the stores which the respondent occupies conld be enjoyed independent of the property leased to the appellant. The lease to the appellant cannot, therefore, be considered as reserving to the proprietors an easement in the premises demised to the appellant. (18 N. Y., 51, and 4 Kent’s Com., 467.)

It is here claimed that the appellant released his claim to an exclusive right to the stairway for a consideration of thirty-five dollars. This claimed release is fully denied by the appellant; and the opinion given at the time the injunction was ordered does not, in terms, refer' to that question of fact between the parties. Perhaps it might be implied that the judge found for the appellant upon that issue of fact.

However that may be, we do not think we are called upon to pass upon that question here. It will more appropriately be determined when the cause shall be tried. Suffice it to say that the respondent’s claim in that regard is fully denied by the appellant, and we ought not to uphold the injunction upon the ground put forth by the respondent in reliance upon the fact thus asserted by him and controverted by the appellant. We prefer to put our decision upon the first ground discussed, and leave the question of release or not open for the trial court. We should reverse the order so far as it is brought up by this appeal.

So much of the order as is appealed from reversed, with ten dollars costs and disbursements.

Taloott, P. J., and Rumsey, J., concurred.

So much of the order in each case as is appealed from reversed, with ten dollars costs and disbursements in one case only.


author: Hardin, Jr..:

text:
    CHARLES WAGER and others, Appellants, v. ELIZA H. WAGER and others, Respondents.

      Partition — when an heir-at-law may bring an action foi'pa/riition against the widow Miming under the will of the testator — as to recovery of possession of the land i/n such action — Lams of 1853, chap. 238.
    When, a widow is in possession of lands, whereof her husband died seized, claiming to be entitled thereto by virtue of a devise thereof to her contained in his last will and testament, one of his heirs-at-law may maintain an action against her and his co-heirs, under chapter 238 of 1853, to procure a judgment declaring the alleged devise to be invalid, and directing a partition to be made of the said lands.

      Quasre, as to whether in such a case the widow could be required by the judgment to surrender possession of the premises, or whether the parties entitled thereto would be left to bring another action for their recovery.
    Appeal from a judgment dismissing tbe plaintiffs’ complaint, entered upon a decision made at tbe Livingston Special Term.
    Tbis action was brought to partition tbe lands whereof William Wager died seized. Tbe plaintiffs are tbe brother and sister of tbe deceased. Tbe defendant Eliza H. Wager is tbe widow of the deceased, and tbe other defendants are tbe nephews and nieces of tbe deceased. The deceased left a last will and testament, which fias been duly admitted to probate. The premises consist of a bouse and lot, whereof tbe deceased was possessed, and which bis widow has continued to reside in and occupy under a claim of right, in virtue of a devise to her contained in her husband’s will.
    Tbe plaintiffs allege and insist that tbe apparent devise under which tbe widow claims tbe premises is void, and that they and the defendants (other than the widow) are seized as tenants in common of the premises, and they seek a partition thereof. The Special Term dismissed the plaintiffs’ complaint upon .the 'ground that the possession of the widow was a bai to this action, without finding whether the plaintiffs and the defendants (other than the widow) were entitled to said premises, and without finding whether the widow had accepted the money legacy in lieu of dower.
    The widow alone appeared and answered, and upon her motion the complaint as to her was dismissed. The action was tried before section 1537 of the Code of Civil Procedure, adopted in 1880, became a law.

      J. & Q. Yam, YoorMs, for the appellants.
    The action is authorized by chapter 238, Laws of 1853 (4 Edm. Stat., 503). The pleadings present just such a case as the statute contemplates. {Hall v. Hall, 13 Hun, 306, directly in point; Patterson v. MeCwnn, 46 How., 182-190; Jenni/ngs v. Conroy, 10 Hun, 77; Hewlett, v. Wood, 62 N. Y., 78, affirms 1 Hun, 479 ; Yoessimg et dl. v. Yoessing et dl., 12 id., 678.) The court can and will award to the plaintiff any relief consistent with the facts stated or case made, without regard to the formal prayer of the complaint. This is authorized by an express provision of the new Code (§ 1207), as well as the old Code. {Mamquat v. Mamquat, 12 N. Y., 336 ; Emery v. Pease, 20 id., 62; Jones v. Butler, 20 How., 189; Wright v. Wright, 54 N. Y., 437-443; Buess v. Koch, 10 Hun, 299.)

      E. A. Hash, for the respondents.
   Hardin, Jr..:

In accordance with our conclusion in Ward v. Ward et al., decided at this term, we must hold that the conclusion of the Special Term to dismiss the complaint was erroneous. We there held that the act of 1853, chapter 238, changes the rule which obtained prior to its passage. (Hewlett v. Wood, 62 N. Y., 78 ; S. C., 1 Hun, 478.) The first section of that act provides in general terms that the validity of any actual or alleged devise or will of real estate may be determined by the Supreme Court in a proper action for that purpose, in like manner as the validity of any deed conveying or purporting to convey lands might be determined by such court.

This confers a general power upon the court to determine the . validity of an alleged devise.”

The plaintiffs here seek to have the devise in question “ determined ” to be invalid and ineffectual. The widow seeks to have it determined to be valid. If she succeeds upon that issue, then the action of the plaintiffs must fail. If, on the other hand, the devise is invalid and is stricken down, then the plaintiffs are seized with tbe other parties as tenants in common, and are entitled as such to have an actual partition or sale thereof. The second section of the act of 1853 provides that “ any heir or heirs claiming lands * * * by descent from an ancestor who died holding or being in possession of the same (whether such heir or heirs be in possession or not), may “prosecute for the partition thereof, notwithstanding any a/pjpcvrent devise by such ancestor, and any possession held under the same devise; provided that such heir or heirs shall allege and establish in the same suit, action or proceeding that such apparent devise is void.”

That section authU’izes this action : First. It is incumbent upon the plaintiffs “to allege and establish that the apparent devise is void. Second. That they are heirs of the ancestor. Third. The apparent devise (if void) and the possession held under the same devise,” the statute says in effect, shall not prevent the prosecution of “ a suit,” action or proceeding “ for partition of the lands.”

The plaintiffs allege the apparent devise is void; they were in a situation when the trial came on to be obliged to maintain that averment as a condition of their right to maintain the action. In the language of the statute it was incumbent upon them “ to establish * '* * that such apparent devise is void.” The widow took issue with that averment, and asserted that the devise was not only “ apparent,” but that the same was not “ void,” to assert, in the language of the statute, “ the validity of the actual or alleged devise.”

If it was valid, then it was an actual devise ; if'invalid, still it was an “ alleged devise.” These views are borne out by the opinion of Mullin, J., in Hewlett v. Wood (62 N. Y., 78), and of Talcott, J., in Hewlett v. Wood et al. (1 Hun, 478); Voessing v. Voessing, (12 id., 678).

We find nothing in Sullivan, v. Sullivan, (66 N. Y., 37) which can be considered as authority against the views already expressed. It was held there that remaindermen and reversioners cannot institute a suit in partition, at least against others not seized of a like estate in common with them, and that the right is only given to one having actual or constructive possession of the lands sought to be partitioned. Allen, J., in delivering the opinion, says: “ There was no tenancy in common by the plaintiff with either of the defendants, and the plaintiff did not hold, and was not in possession either actual or constructively of any part 'of the lands sought to be partitioned. We think it too well settled by authority as well as upon principle, that a remainderman cannot, as against others not seized of a like estate in common with him, maintain the action to disturb the rule.”

There was no reference to this act of 1853, nor was there anything in the case calling for its consideration. Nor do we think the- position of the respondent here is aided by Chipman et al. v. Montgomery et al. (63 N. Y., 221). That was .a case brought for the construction of a will and for an accounting and a settlement of the estate. It was held that an heir-at-law or ilfext of kin, claiming in hostility to a will, cannot maintain an action to obtain a construction of it, and that as there was no trust, there was nothing to give the court jurisdiction to construe the will. The statute of 1853 was not referred to and had no application to any of the questions presented and decided in that case. Nor do we think the doctrine of Allen, J., in Van Schuyver v. Mulford (59 N. Y., 431), in point, as he expressly states that the parties had proceeded without raising the objection to the form of the remedy, and therefore the court could proceed to determine the validity of the devise.

No allusion was made to the act of 1853, and what is found in the dictum probably was stated in respect to the general rule as it was understood before the enactment of 1853. Nor can the remarks of Folger, J., in Bailey v. Briggs (56 N. Y, 415), aid the respondent in avoiding the effect of the act of 1853. It was held there that the jurisdiction of the court for the construction of wills is incidental to that over a trust.

The judge said the action was not brought under the act of 1853; the will here is not disputed; all parties assert its genuineness, its proper execution, its entwe validity, and that the promises are devised by it, and must be held by virtue of it.” The. difference in that case was as to the character and extent of the estate. The defendants had a good estate in the premises. Whatever force there is in the decision in Debussierre v. Holladay et al. (55 How., 220) as an authority, falls upon the side of the appellants as to the construction to be given to the act of 1853.

It is urged by the respondents’ learned counsel that a party cannot be excluded from possession by a decree in such a case as this, and that no case is to be found where any such relief was given. We turn to the statute for an answer to his position. The first section declares that after a determination of the validity or invalidity of the alleged devise, “ any party may be enjoined from setting up or from impeachi/ng such devise as justice may require.” But independent of this provision, we see no difficulty in giving effect to the decree which the court may ultimately pronounce in such a case. (Biddwell v. The Astor M. Ins. Co., 16 N. Y., 263; N. Y. Ice Co. v. Ins. Co., 23 id., 357; Bradley v. Aldrich, 40 id., 504; Lattin v. McCarty, 41 id., 107; Hatch v. Central Bank, 78 id., 487.)

In that last cited case but one, it was held that under our system, blending law and equity, an equitable action to remove a cloud upon the plaintiff’s title, and a claim to repover the possession of the premises, may be united in the same action and asserted in the same Gomplaint.

Besides, the first section of the act of 1853, ch. 238, provides that the validity or invalidity of the devise may “ be determined * * * in like manner as the validity of any deed conveying or purporting to convey lands might be determined by such court.” Such actions have been brought to determine the validity of deeds upon the equity side of the court, and to recover possession in case the deed was stricken down and the actions have been upheld. (Shumway v. Shumway, 1 Lans., 474, opinion of Johnson, J. [7th dist.] ; S. C. affirmed, 42 N. Y., 143, opinion by Foster, J.) It was also determined in that case that a party was not entitled to a second trial as a matter of course, as in action of ejectment. It may be that the only result which the court would enforce, would be such as legitimately followed from a determination that the devise was valid or invalid.

It was observed by Grover, J., in Marvin v. Marvin (11 Abb. [N. S.], 104), that “ all that he (the party) has accomplished is to remove the obstacle that the alleged devise might interpose.”

He adds, however, that in a case brought under the second section of the act of 1853, when the ancestor was in possession, that “it is evident in such a case if the interest claimed by the heir is an undivided one, held in common with others, the only obstacle to a partition is the alleged devise, and that upon this being determined to be invalid, his .right to apply to a court of equity for partition is established. Hence it is that section 2 provides for a partition in this class of cases, in the same action in which the devise is adjudged invalid.”

The Special Term in the case before us expressly found that the possession of the widow was under the will of the deceased. We thinlr it erroneously found, as a conclusion of law, “that such adverse possession is a bar to this action,” and thereupon dismissed the complaint. It may be that in case the invalidity of the devise be determined as claimed by the plaintiffs, and the defendant “ enjoined from setting up such devise,” the court might refuse to direct that the defendant surrender possession in a proper case, and leave the plaintiffs and the other tenants in common to bring another action. However that may be when the case is heard upon the merits, we need not inquire as to the effect of the judgment the plaintiff may obtain. It will be more appropriate to leave that questioh to be considered when it shall properly arise.

Our conclusion now -is that the Special Term fell into an error in dismissing the complaint. We, therefore, reverse the judgment entered thereon for the reasons stated in Ward v. Ward (supra). We omit to consider the questions arising upon the will, as they were not passed upon at the Special Term.

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

Talcott, P. J., and Rumsey, J., concurred.

So ordered.

        Ante, p. 481.


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    AMASIAH H. BRADNER and DANIEL LOWERY, Respondents, v. PETER O. STRANG, JOHN B. HOLLAND and JOSEPH HOLLAND, Appellants.

      Tfrunidulent representations —proof that reliance was placed upon them — liability of one partner for the fraudulent representations of Ms copw'tnm' — when his liability therefor is not affected by a discharge in bankruptcy.

    In 1875, and prior thereto, the plaintiffs, who were engaged as partners in buying wool and sheepskins at Rochester, had been accustomed to ship them to the defendants, who were carrying on business as partners in New York, and to draw drafts upon the defendants and send notes to them, to be negotiated and to take up notes of the plaintiffs previously discounted.
    The plaintiffs brought this action to recover the damages occasioned by their having been induced to send to the defendants four promissory notes, by reason and by means of false and fraudulent representations of the defendant Strang, contained in letters written to the plaintiffs to the effect that the defendants’ firm, of which he was a member, still held four promissory notes previously sent to them by the plaintiffs, whereas in fact they had then negotiated the said notes and received the proceeds thereof
    Upon an appeal from a judgment in favor of the plaintiffs, held, that the plaintiffs were properly allowed upon the trial to testify that they sent the notes in reliance upon the statements contained in the letters.
    That the relations of trust and confidence existing between the two firms were suoli as might well induce the plaintiffs to rely upon such statements, and that the jury were justified in finding that they did so rely upon them. •
    That Strang was properly allowed to testify that he had no fraudulent intent in writing the letters, but that it was proper to refuse to allow his codefendants to testify to the absence of any intent to defraud on their part, as the fact that the firm had received the proceeds of the discount of the notes rendered them liable for the fraudulent acts and representations, by means of which the notes were procured, without proof of any actual fraudulent intent on their part.
    That they were chargeable with an express, positive fraud, within the meaning of the term “fraud,” as used in the bankrupt act, and were not relieved from liability therefor by a discharge granted under said act.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from, an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried:
    The action was brought to recover damages occasioned by the plaintiffs having been induced to send to the defendants their four promissory notes, by means of false and fraudulent representations, to the effect that four other notes previously sent by the plaintiffs to the defendants were still held by them, whereas the defendants had then discounted the said notes and received the proceeds arising therefrom.

      George II. Forster, for the apjiellants.

      WilUmi F. Gogswell, for the respondents.
   Hardin, J.:

This action was brought to recover damages for fraudulently procuring from the plaintiffs, who were dealers in wool and sheep shins at Rochester, four promissory notes, which the defendants had discounted for their benefit, and upon which they realized the proceeds of such discount. The notes were negotiable and passed from the defendants into the hands of bona fide holders, and the plaintiffs were subsequently obliged to and did pay the same.

The defendants, who were copartners, were carrying on business in Now York and they became and were the correspondents of the plaintiffs. The plaintiffs, in the course of their business, shipped to the defendants the wool and sheep skins, drew drafts on them, and also sent them notes for discount, and through a long course of business, covering numerous transactions, the parties exchanged credit.

Upon the 27th of March, 1875, one of the defendants wrote to the plaintiffs and in the letter stated a summary of the accounts between the parties, as the defendants claimed, and in that letter he said, viz.: “ The notes we have received are all good, only we can’t get money on them alone, and in the meantime we have paid about $30,000 of your notes, which these last were given to renew in part. We have $16,000 worth of notes not used. The actual balance of the account is about $40,000, to which is to be added your notes for $16,000.” Upon the 2d day of April, 1875, another letter was written to the plaintiffs, in which the defendant states, viz.: “ Your notes which have recently run off I might get renewed if you would send me, say four notes having about three months to run, and payable at the Metropolitan National Bank, New York, -x- -x- x- j ¿¡are no£ 0ffer f]ie nofes we have of yours, where the last run off were used, because the place where these notes are payable is at our office, and it would put them on inquiry at once.”

. After these letters were received, and relying upon the statements therein contained, the plaintiffs sent to the defendants their four promissory notes. Tlie defendants took these notes, and also procured them to be discounted, and the plaintiffs subsequently paid them. Upon the trial each of the plaintiffs testified that they relied upon the statements quoted from the letters. We think it was entirely competent to prove such reliance upon the statements as true by the plaintiffs. The defendants held relations of confidence towards the plaintiffs, and were by such statements enabled to induce the plaintiffs to act thereon, as the evidence amply warranted the jury in finding. The case of Dambman v. Schulting (75 N. Y., 55), cited by the appellants, contains nothing inconsistent with such doctrine.

The representations before us, the jury were authorized to find, were such as were calculated to and did mislead the plaintiffs. The relations of trust and confidence existing between the two firms were such as might well induce the plaintiffs to rely upon such representations. (Bench v. Sheldon, 14 Barb., 66; Paul v. Hadley, 23 id., 521; Story’s Eq., § 207; 75 N. Y., supra.)

The substantial fact stated in the letters, in effect, was that the notes had not been discounted, and therefore their proceeds applied upon the account, and because of that fact the plaintiffs might as business men yield to the solicitation for further notes, to be used in procuring funds to apply towards reducing their account with the defendants.

Suffice it to say the evidence authorized the jury so to find, as their verdict indicates they did find. Upon the trial there was an offer to show by the defendant Holland that there was not any intent to defraud in sending the letter. But it already appeared that the letters were written by their partner and codefendant Strang, and the evidence was therefore excluded. The fraud, if any was perpetrated by Strang, and it was not a defense in his mouth that the copartners did not intend a fraud, nor was it a defense to them to show that their copartner made the representations in the course of the firm business, withoxxt their action or participation therein. (Bliss v. Matteson, 52 Barb., 345; Hawkins v. Appleby, 2 Sandf., 421.)

In the case of Stitt v. Little (63 N. Y., 435) it was held that a knowledge of the falsity of the representation made, or that it was made with intent to deceive, must be shown and found by the jury. But in the case before us it is impossible to conceive that the absence of an actual intent to deceive in the breast of Hollands would be a defense to Strang, or a defense to them.

The Hollands being partners are chargeable with the affirmative acts and declarations of Strang by means of which their firm received the notes, procured them to be discounted, and enjoyed the proceeds thereof. Hence the rulings upon the trial allowing Strang to testify that he had no fraudulent intent in writing the letters was proper, and it was equally proper to exclude the evidence of the Hollands, in respect to their having no such intent. Indeed, the court assumed that they possessed no such actual intent, and were chargeable only upon the principle that -Strang’s acts and declarations were those of their agent, as they were his copartners and participants in the fruits of the alleged fraud. (52 Barb., 345 ; 2 Sandf., 421.)

The defendants were adjudicated bankrupts July 3, 1875, and discharged June 1,1877, and such discharge was set up and insisted upon at the trial. It was overruled by the court, and the defendants Hollands now insist that they were discharged from the claim made herein against them in common with Strang their copartner. It was held (Hennequin v. Clews, 77 N. Y., 427) that the term fraud,” as used in the bankrupt act declaring what debts should not be discharged, relates to affirmative,' express fraud, and not to fraud by implication. In Neal v. Clark (95 U. S., 704) it was contrued to mean “positive fraud, or fraud in fact,” involving moral turpitude or intentional wrong. We think it very clear that under the principles of these cases, Strang was not discharged in bankruptcy from the claim made against him in i ais action. (Libbey v. Strasburger, 14 Hun, 120; Talcott v. Harris, 18 id., 567; Argall v. Jacobs, 21 id., 115.)

Though his act is the one which casts a liability upon the Hollands, we think as he being their partner, and as such their agent, that they through him are chargeable with an express, positive fraud, and they in receiving the fruits of his fraudulent act adopted the act which worked a fraud upon the plaintiffs.

The discharges in bankruptcy were unavailing to the defendants, or either of them. The proofs given by the plaintiffs established the false representations, by means of wbicb they were induced to pai-t with their notes to the defendants; tbat tbe defendants procured them to be discounted, and received tbe avails thereof, and tbat tbe plaintiffs were obliged to pay and take up tbe notes, and tbe extent of tbe damages sustained by tbe plaintiffs, and we see no exceptions in tbe course of tbe trial wbicb should lead us to disturb tbe verdict. (Section 1003 of Code of Civil Procedure.)

Tbe order and judgment must be affirmed.

Talcott, P. J., and Rumsey, .J., concurred.

Judgment and order affirmed.


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    MICHAEL GORHAM, as Administrator, etc., Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Action for the negligent hilling of a child — when special pecuniary damages therefrom need not he pt'oced.

    In an action, brought by a father, as the administrator of his deceased child, a healthy boy of about six years of age, to recover damages occasioned by his having been killed through the defendant’s negligence, the absence of proof of any special pecuniary damage resulting from his death will not justify the court in nonsuiting the plaintiff, or in directing the jury to find a verdict for nominal damages only.
    Appeal from a judgment, entered upon a verdict for six cents damages directed in favor of the plaintiff, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom the action was tried.
    Tbe plaintiff sues as administrator of bis infant son Willie, who was killed in tbe town of Geddes, February 26, 1879, at about eight o’clock in tbe morning at a railway crossing over a highway, .by an engine belonging to and operated by tbe defendant.
    “At tbe time of bis death tbe boy was six and a-half years old and was quite healthy.” His mother, who lived in the “Union Salt Yard,” about thirty yards from tbe crossing where tbe boy was killed, testified “ tbat she saw tbe boy about five minutes before be was killed, and that he left the house, as she understood, to go to school. The school-house was only a little ways from the crossing. In going to school he had to go across the railroad and canal both. They could not get there any other way.” There was another sou of the plaintiff who went with "Willie, who was about ten years of age. Both of the boys had lived at the place where the accident occurred for two years. At the time of the accident a freight train was going east and the single engine west, the latter caused the death of the intestate.
    Gronon, a German witness, gave ’evidence tending to show that the bell on the single engine did not ring, and that its whistle did not sound, and that he heard the freight train whistle. He also testified he could not say whether the boys were standing “ b.etween the two tracks * * * or on the track.” The defendant at the close of the evidence moved for a nonsuit upon the three following grounds, viz.: “ Hirst. That no negligence was shown on the part of the defendant. Second. That the negligence of the plaintiff and his intestate contributed to the injury. Third. There is no evidence showing the plaintiff’s intestate free from negligence.” Thereupon the court remarked, viz: “ That point seems to be positive, and I think I will submit the case to the jury, with a very strong opinion on my part that the plaintiff ought to be nonsuited,.” The plaintiff took an exception to the suggestion of the court that the plaintiff ought to be nonsuited.
    Subsequently the court, upon the authority of the Mitchell Case, in 2 Hun, told the clerk to enter a verdict of six cents damages for the plaintiff, and the plaintiff took an exception to the direction ; and the court then took a verdict of the jury of six cents damages, and subsequently denied a motion, made upon the minutes by the plaintiff, to set aside the verdict.
    Sedgwick, Ames & King, for the appellant.

      Kennedy <& Tracy, for the respondent.
   Hardin, J.:

"We understand from the case that the court directed a verdict for nominal damages of six cents because no direct proof was given as to the pecuniary loss sustained by the death of the intestate. The court’s attention was directed to the opinion of Bocees, J., in Mitchell v. The N. Y. Central (2 Hun, 535). That case was affirmed by the Court of Appeals, and it is reported as a memorandum case in 64 N. Y., 655. We have been furnished with the whole opinion of Earl, J., delivered in that case, and find the question here involved was not discussed or alluded to by him. But the point was determined by that court in Ihl v. Forty-second Street Railroad (47 N. Y., 317). It was there held in an action to recover damages for the death of a child three years old, under the provision of chapter 450, Laws of 1847, as amended by chapter 256 of Laws of 1849, that the absence of proof of special pecuniary damage resulting from the death of the child will not justify the court in nonsuiting the plaintiff, or in directing the jury to find only nominal damages. (See opinion Rappalo, J.)

The ruling in this case was therefore clearly erroneous. Notwithstanding the error we have pointed out, the learned counsel for the respondent insists that the judgment should be affirmed, as the plaintiff recovered more than he was entitled to, and this position would be correct if we were of the opinion that the plaintiff was not entitled to recover any damages. (John Gray v. The Second Avenue Railroad Company, 65 N. Y., 561.) We cannot say, as a matter of law, that it was negligent in the parents of the intestate to allow the deceased to go to school across the railroad in company with his brother about ten years of age. Nor can we say, as a matter of law, that the deceased was guilty of such contributory negligence as would bar a recovery. (Ihl v. Forty-second Street Railroad Company, supra; Costello v. The Syracuse and Binghamton Company, 65 Barb., 92.)

Those questions should have been submitted to the jury with the question relating to the defendant’s alleged negligence. (Kenyon v. The N. Y. Central, etc., 5 Hun, 480; Zimmer v. The N. Y. Central R. R. Co., 7 id., 552; McGovern v. The N. Y. Central etc., Railroad Company, 67 N. Y., 417; Powell v. The New York Central and Hudson River Railroad Co., opinion of Gilbert, J., 10 Weekly Dig., 505; S. C., 22 Hun, 56.)

We must, for the error pointed out (supra), reverse the judgment and order, and direct a new trial.

The judgment and order should be reversed and a new trial ordered, with costs to abide the event.

Talcott, P. J., and Rumsey, J., concurred.

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


text:
    JOHN S. ROYCE, Appellant, v. CHARLES JONES, HARVEY G. BAKER and CHARLES O. BEACH, Respondents.

      Costs — when defendants, sem&nng in their defense, a/re entitled to sepa/rcde bills of costs.

    Where a verdict is rendered in favor of the defendants, in an action brought against them to recover damages for false and fraudulent representations alleged to have been made by them, and they have appeared therein by separate attorneys and served separate answers setting up the same defense, each defendant so appearing is entitled, in the absence of evidence showing that he has severed in his defense in bad faith and with intent to increase the costs, to tax a separate bill of costs against the plaintiff.
    Appeal from an order made at Special Term refusing to set aside a taxation of costs herein.
    The action was brought to recover of the defendants damages for having made certain false and fraudulent representations to the plaintiff. There was a trial and a verdict for the defendants. The defendant Beach appeared and answered by Abbott & Drake, his attorneys. The defendants Baker and Jones appeared by J. B. Adams, and answered by a separate answer containing a general denial, which was the same and only defense set up by Beach.

      J. & Q. Van, Voorhis, for the appellant.
    Section 305 gives costs as a matter of absolute right. The courts have always treated the allowance of more than one bill to several defendants as a matter resting in its discretion. (Atkms v. Lefevre, 5 Abb. [N. S.], 221; Castellanos v. Beauville, 2 Sand., 670; Harper v. Chamber

      lain, 14 Abb., 408; Bailey y. Johnson, 1 Daly, 69; Bridgeport Fvre Ins. Go. v. Wilson, 7 Bosw., 700; Wood v.' Brooklyn Fire Ins. Co., 10 How., 154.) It has been held in the following cases, that an order of the court is necessary: Williams v. Eorgan (13 How., 138), Bank of Atliba v. Wollf (18 id., 102), Wioklow y. Bell (18 id., 397), Williams v. Blurner (49 id., 12), Allis v. Wheeler (56 N. Y., 50).

      A. J. Abbott, for the respondent Beach.

      J. B. Adams, for the respondents Jones and Baker.
   Hardin, J.:

Manifestly this is an action at law where the rights of the defendants to costs are governed by the statute. The Code, section 304, provides for cases where a plaintiff is entitled to recover costs; and then follows section 305, saying, viz.: “ Costs shall be allowed, of course, to the defendant in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein.” This section, prior to 1851, as construed in Daniels v. Lyon (5 Seld., 549), gave defendants who succeeded costs.

That case was decided .in 1854, after the amendment of 1851, but the question arose prior to the amendment, and so it remains as an authoritative interpretation of the statute. When that question arose, section 306 applied solely to equity actions, as stated by Sapallo, J., in Allen v. Wheeler (56 N. Y., 50). It was held in the case last cited, that where the plaintiff recovers against some of the defendants and fails against others, the costs of the latter must be awarded by the court if recovered.

Such was the purpose of the amendment of 1851; but where the plaintiff fails as to all of the defendants, they are entitled, where they were not united in interest and appeared by separate attorneys, to separate bills of costs. This question was decided by this court in Milligan, Administrator, v. Robinson and Roof, in January, 1880, and it has been passed upon by the third department in Williams v. Cassady et al., decided September, 1880, and reported in volume ten of the New York Weekly Digest, page 494; S. C., 22 Hun, 180. If the severance is in bad faith, and to increase costs, a different rule prevails. (Lindslay v. Deafendorf, 48 How., 90; New York & N. H. R. R. Co. v. Schuyler, 29 id., 89.)

In this case the defendants appear to have answered in good faith by two sets of attorneys, and we think it a case where the statute authorizes the allowance of two bills of costs without any order.

We must affirm the order with ten dollars costs and disbursements.

Talcott, P. J., and Rumsey, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.