text:
    Margaret Eagan, Resp't, v. The City of Rochester, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Municipal corporations—Negligence—Costs—Statutes.
    The amendment to § 80, of the charter of Rochester, by chapter 561. Laws 1890, was intended to supersede and take the place of § 218, as amended by chapter 843, Laws 1881, and, hence, a party bringing action against the city for injuries sustained by its negligence is not required to serve the fifteen days’ notice in order to be entitled to costs.
    Appeal from an order of the Monroe special term, directing the clerk ef the county of Monroe to allow the plaintiff’s bill of costs and disbursements.

      C. D. Kiehel, for app'lt; D. C. Feely, for resp't.
   Lewis, J.

The plaintiff, on the 6th day of February, 1888, sustained injuries by falling upon the sidewalk in the city of Rochester. She brought an action against the city to recover damages and obtained a verdict of three hundred ($300) dollars.

By chapter 14 of the Laws of 1880, a charter was created for the city of Rochester, and by § 218 it was provided that the owners of lots in the city shall keep the sidewalks in front of their premises in repair and free from obstruction, and that the city shall not be liable for damages caused by defective sidewalks, unless actual notice of its unsafe and dangerous condition be given to the officers of the city having charge of the streets a reasonable time before the happening of any injury.

By chapter 343 of the Laws of 1881 this section was amended by adding thereto the following: “ Any person or persons who shall claim damages against said city for injuries caused by any alleged negligence shall not be allowed to tax costs against said city in any action brought therefor, unless the parties, so claiming damage, shall have, within fifteen days after the happening of such injury, notified the mayor or city attorney of the time and location of the place where such injury occurred.” Section 80 of the charter of 1880 provided for auditing accounts against the city. By chapter 561 of the Laws of 1890, this section was amended by providing for the form and manner of presenting unliquidated claims against the city for wrongs, injuries or negligence. And the following provisions were added thereto: “ No action or proceeding to recover or enforce any claim, debt or demand against the city shall be brought until the expiration of forty days after the claim, debt or demand shall have been presented to the common council for audit in the manner and form aforesaid.” * * *

“ All actions brought against the city to recover damages or other relief for injuries to person or property, caused by negligence shall be commenced within one year from the time of receiving the injuries or when the cause of action mentioned in the complaint shall have accrued. No action or proceeding shall be maintained against the city for personal injuries, unless the notice of the intention to commence such action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued.”

These provisions in reference to the time within which an action shall be commenced and the filing with the law officer of the notice, were substantially a reenactment and incorporation into the city’s charter of the provisions of chapter 57.2 of the Laws of 1886.

The plaintiff failed to give the fifteen days notice required by the act of 1886, and she commenced her action in the month of June, 1888. The action was tried in the year 1891, and resulted in a verdict against the city for $300. The county clerk refused to tax plaintiff’s bill of costs for the reason the fifteen days notice was not given.

The object of the enactment requiring the service of fifteen days notice was, that the city should have early information of the happening of the accident, so that its layr officers could make an early investigation of the facts and determine whether the city was liable and learn who were witnesses of the occurrence, and for the further object of fixing the ultimate responsiblity for such negligence upon the proper person. The original section did not provide for the giving of any notice that the claimant intended to bring an action against the city. It simply provided that if an action was brought without giving the notice, the plaintiff, if successful, should not be entitled to costs.

The provisions of this amended section were more comprehensive, the service of the notice' was made a condition of the right to maintain an action. Theumendment of 1890 did not in terms repeal § 218 of the act of 1881. The time within which the notice was required to be served was extended to six months, and it thereby corrected the somewhat harsh provision in the former law requiring the notice to be served within so short a time after the accident. The provision requiring the fifteen days notice was an unreasonably short time, asjs exemplified by the facts of this case. It was made to appear upon the motion that the plaintiff’s injuries were of so serious a character as to make it practically impossible for her to attend personally to the preparation and service of the notice within fifteen days of the time of the accident.

We would not be justified in declaring the law void for that reason, the statute not requiring that the plaintiff should personally serve the notice. It was held in Wheeler v. Conn. Mutual Life Ins. Co., 82 N. Y., 543, that the insanity of the assured was not an excuse for the nonpayment of the premiums, as the payment could have been made as well by any other person. The injustice of the provision, however, may be considered in judging of the legislative intention in enacting the amendment of 1890.

As we have seen, the statute as amended covered the entire ground of the section amended, and it is hardly supposable that the legislature intended to allow the former act to remain in force, thereby requiring the service of two notices of the circumstances of the injury upon the same official, one within fifteen days and the other within six months. If both sections are in force the anomalous condition exists that an action may be maintained if the notice contemplated by the act of 1886 is served within six months, and yet the plaintiff is not entitled to recover costs, which are simply an incident to the action, unless the fifteen days notice has also been served.

The repeal of statutes by implication is not favored, but where two statutes are found relating to the same subject and are enacted for the same purpose, the former must be deemed to have been repealed.

The later law prevails as the last expression of the legislative will. Sec. 138, Sutherland on Statutory Construction.

“ A subsequent statute revising. the whole subject matter of the former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must on principles of law, as well as in reason and in common sense, operate to repeal the former.”

“ Though a subsequent statute is not repugnant in all its provisions to a former one, yet if it be clearly intended to prescribe the only rule which should govern, it repeals the former statute.” * * * “ The reasonable inference from a revision is that the legislature cannot be supposed to have intended that there should be two distinct enactments embracing the same subject matter in force at the same time, the new statute, being the most recent expression of the legislative will, must be deemed a substitute for previous enactments, and the only one which is to be regarded as having the force of law.” Section 154, id.

The foregoing are quotations from the text of Sutherland on Statutory Construction, the doctrine is sustained by a "number of authorities referred to in the marginal notes.

We are of the opinion that the amendment of 1890 was intended to supersede and take the place of the section of the act of 1881 mentioned, and that the plaintiff was not required to serve the fifteen days notice in order to be entitled to costs.

This leads to an affirmance of the order appealed from, which should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., Macojlbek and Haight, JJ., concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Valentine Fromm, Resp't, v. Daniel Ide, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Negligence—Flooding lands
    Defendant, who was highway commissioner, agreed with plaintiff and his neighbors to lower and extend ditches in the highway so as to drain o££ water which stood on their lands, for which they were to pay him. He so negligently did the work that, instead of draining the land the ditches gathered the surface water and threw it on said lands, and defendant, although requested to remedy the defect, refused to do so. Held, that plaintiff was not limited to an action for breach of contract, but could bring an action in tort to recover the damages sustained by defendant’s negligence

      H. Same—Damages.
    _ Where the defect is at a point on another’s land, where plaintiff has no right to enter for the purpose of deepening the ditch, he cannot be limited to recovering only the actual cost of remedying the defect.
    ■8. Trial—Chabge.
    Where the jury have been substantially charged as requested, it is not error to refuse the request.
    Appeal from a judgment of the Monroe county court, and also from an order denying the defendant’s motion for a new trial upon the minutes of the court.

      John D. Lynn, for app’lt; Ivan Powers, for resp’t.
   Lewis, J.

The cause of action, as alleged in plaintiff’s complaint, is for damages sustained to his premises, situated in the town of Irondequoit, by the negligence of the defendant in so constructing a ditch in the highway as to cause the surface water to flow upon the plaintiff’s premises and thereby rendering them unfit for occupation. Plaintiff was the owner of five acres of land in said town, with a dwelling house thereon, in which he resided with his family./, The land was low, portions of it had theretofore been, during the rainy seasons, covered b)' water. Ditches had been constructed in the highway for the purpose of draining the lands. The defendant was the highway commissioner of the town, and while such commissioner he entered into an agreement with the plaintiff and two of plaintiff’s neighbors, whose lands were similarly situated, to lower and extend the ditches in the highways so as to relieve their lands of the water, the plaintiff and his neighbors agreeing to pay defendant for the work the sum of seventy-five dollars. The agreement required him to so construct the ditches that they would drain the plaintiff’s land along the highway in an easterly direction. The defendant so carelessly and negligently did the work that the ditches, instead of draining the water off from the plaintiff’s land, gathered the surface water and emptied it upon his land. The easterly end of the ditch instead •of being, as it was agreed it should be, lower than its westerly end, was left higher. The result was that the plaintiff’s and the adjoining lands were, in the rainy seasons, submerged with water, the water remaining thereon and becoming stagnant and foul, rendering the plaintiff’s premises unhealthful and unfit for occupation or cultivation. There was evidence tending to show that immediately after the plaintiff had completed the work he was informed of the defect in the sewer and was requested to remedy it, but lie neglected and refused so to do, and the situation thus remained for three years, when the plaintiff himself completed the ditch by deepening its easterly end, and thereafter his lands were properly drained. The expense of completing the ditch was trifling, amounting to about ten dollars. Plaintiff recovered a verdict for $175 damages.

It is the contention of the appellant that the plaintiff was only entitled to recover in an action for breach of contract; while he could have brought his action in that form, he was at liberty to bring his action in tort to recover his damages sustained by defendant’s negligence. The defendant left the ditch in such a condition that it collected the surface water and emptied it upon the plaintiff’s land. Had the work been done by the defendant voluntarily and not under a contract with the plaintiff, his liability for damages sustained by the plaintiff would be conceded. Causing the water to be emptied upon the plaintiff’s land was not necessarily connected with the performance of the contract. One who, while performing a contract to transport goods or passengers for hire, negligently destroys the property or injures the person of the -passenger, is guilty of a tort and liable in an action for negligence, notwithstanding the negligent act was performed while carrying out a contract. Had the defendant contracted to put a roof upon the plaintiff’s house and had performed the work in such a negligent and careless manner as to cause the plaintiff’s property in the house to be injured by rain, he would be liable in an action for tort. Plaintiff’s right of action did not depend on the existence of a contract between himself and the defendant, but upon the fact that the defendant wrongfully and negligently did an act which injured the plaintiff’s property. Defendant owed a duty to the plaintiff not to injure his property by any wrongful or negligent act of his while performing the contract. That duty did not necesssarily depend upon or grow out of the contract. Bickford v. Richards, 154 Mass., 163; Stock v. City of Boston, 149 id., 410.

Counsel for the appellant claims that it was the duty of the plaintiff to remedy the defect in the sewer and that his damages should be limited to the cost of doing the work: and that he was not justified in allowing the defect in the sewer to continue for three years.

The evidence tends to show that the defect could have been remedied easily and at very light expense, but the defect in the ditch was in the highway at a point several hundred feet easterly of the plaintiff’s premises, upon the land of another person. The plaintiff had no right or authority to enter upon the land of another for the purpose of deepening the ditch. The defendant, as we have seen, was the highway commissioner, and as such had control and supervision of the highways of the town. He was notified by the plaintiff of the defect in the ditch and it was his duty to correct his own error. He refused so to do. Had the defect in the ditch been upon the premises of the plaintiff, the rule contended for by the defendant would obtain, but has no application in such a case as this.

We have examined the exceptions of the defendant, and the only one meriting attention is his exception to the refusal of the •court to the that in no event could the defendant be charged with any injury resulting from any water that would have remained on these premises if the ditch had never been built. It appeared upon the trial that the plaintiff’s premises were, prior to the performance of the work upon the ditches by the defendant, during the rainy season, to some extent, covered with water, and unquestionably the defendant was not chargeable with any injury resulting from any water that would have been upon the premises if the work had not been done, but by referring to the charge of the court, we find that the jury had been correctly instructed upon that point, although not in language as clear and direct as was the request to charge mentioned. The jury having been substantially charged as requested, it was not error, we think, to refuse the request.

The judgment and order appealed from should be affirmed.

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


author: Macomber, J.

text:
    Michael Kavanagh, App'lt, v. Amzi L. Barber, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Nuisance—Parties—Evidence.
    The court of appeals reversed a former judgment in favor of plaintiff, on the ground that he could not maintain' an action for nuisance on account of disagreeable odors, which caused annoyance and discomfort to himself and family, in a house owned by his wife. On the new trial, he offered evidence to show that he furnished the money to buy the house, the title to which was taken in the wife’s name, and occupied it under an agreement with her that he might occupy it, as a home for himself and children as long as he lived, and that he paid the taxes and repairs. Held, that under the decision of the court of appeals no recovery could be had on the complaint, and the evidence offered was incompetent.
    2. Same—Pleading—Amendment.
    Plaintiff asked for an amendment to the complaint by adding an allegation that he was in legal possession of the premises under an agreement with his wife. Held, that in the absence of proof of facts excusing1 his failure to insert such an allegation originally, the order denying such amendment should not be reversed.
    Appeal by the plaintiff, Michael Kavanagh, from a judgment entered in Brie county, May 5, 1892, upon a nonsuit directed at the Brie circuit.

      H. C. Day, for app’lt; Sheldon T. Viele and Clinton Spencer, for resp’t.
   Macomber, J.

Upon the first trial of this cause, there was a disagreement of the jury. A second trial was had, which resulted in a small verdict for the plaintiff. It was affirmed by this court, in an opinion reported in 59 Hun, 60; 35 St. Rep., 430; but was reversed by the court of appeals in a decision reported in 131 N. Y., 211; 43 St. Rep., 283.

This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of a nuisance created by the defendant in operating a factory for the manufacture of asphalt for paving purposes. There was sufficient evidence given on the former trial, which was reviewed by this court, to sustain the plaintiff’s allegation that the fumes arising from the asphalt penetrated the house occupied by himself and his family, to their great annoyance and discomfort. It was shown that the air of the whole neighborhood was tainted with the odor, and there was some evidence that members of the plaintiff’s family became ill thereby. The principal damage, however, for which this action was brought, as is stated by the court of appeals in its decision hereinafter referred to, was in the personal discomfort to which the plaintiff was subjected in the occupation of the house. The court of appeals reversed the judgment of this court and granted a new trial upon the ground, as we understand it, that there was no allegation, or proof, that the plaintiff had any title or interest, as lessee or otherwise, in the land which' was affected by the nuisance. That court, by Andrews, J., says: “ The house was owned by the plaintiff’s wife and had been occupied for fourteen years by the plaintiff and his family, and was so occupied when the manufactory of the defendant was built. The plaintiff, so far as appears, hasnolien or other interest in the realty. The family, as is to be inferred, lived in the house by sufferance of the wife. The possession of the house followed the legal title. Both the occupation and the possession, in a legal sense, was that of the wife and not of the husband. Martin v. Rector, 101 N. Y., 77. The husband supported the family. The question presented is, whether, under these circumstances, a private action can be maintained by the husband for the discomfort caused by the offensive vapors. We find no precedent for such an action by a person so situated." Thence follows a review of1 the important and controlling cases and authorities upon the question discussed, and the conclusion, as above stated, was reached that the plaintiff could not maintain this action upon proofs as there disclosed, and a new trial was accordingly granted.

The learned counsel for the plaintiff, however, upon the third and last trial, when a nonsuit was directed by the trial court on the ground that the complaint did not state a cause of action, offered to prove certain facts which were stated by counsel in the opening of the case to the jury, the material portion of which was as follows: “ That the plaintiff intermarried with his present wife about twenty-two years ago, and that prior to that time he occupied another dwelling in the same block as the one now ownqd by his wife, and occupied by her and the family, but his present wife continued to live with him in his former residence until they removed, with the children, to the present abode mentioned in the complaint; that the plaintiff furnished all the money to purchase the lot and to build the house No. 347 4th street, and has ever since occupied, possessed and controlled the same, paying all the taxes assessed thereon, and paying for all the repairs and improvements which have since been made thereto; that he, the said plaintiff, has ever since the purchase of said premises, No. 347 4th street, and the building of said house thereon, occupied, possessed and controlled the same under an agreement made by him with his said wife when said premises were first purchased and paid for by him, and the title thereto taken in the name of his said wife, that he, the said plaintiff, with his said children, might occupy the same as a home for himself and his children so long as he lived, and that he might occupy, possess and control the same as his home the same as he had that in which they were then living.”

This offer was objected to, and rejected by the court, and thereupon the plaintiff’s counsel asked the privilege of amending the complaint by inserting after “ No. 347 4th street ” the words: “ and ever since the purchase thereof has been, and is now, in legal possession thereof under an agreement with his said wife.”

Notwithstanding the elaborate argument addressed to us upon the main question by the learned counsel for the appellant, it is clear that under the decision of the court of appeals in this case no recovery could be had upon the complaint, and the offer of proof thereunder was, within the reasoning of the court of appeals, incompetent.

But it is insisted that the trial court erred in refusing the application of the plaintiff to amend his complaint in the respect above stated. It is apparent that the proposed amendment was offered in order to meet the objection made by the court of appeals. Whether the same should, or should not, have been allowed under § 723 of the Code of Civil Procedure depended upon many circumstances. The appeal book contains no affidavit or other proof excusing the failure of the plaintiff to insert such an allegation in the original complaint. Though the plaintiff upon this question is entitled to the exercise of the discretion of the court at general term, yet, under the established practice, we should not be justified in reversing a ruling made under the circumstances disclosed, unless some facts were laid before us excusing the failure to insert such an allegation originally, thus presenting some ground for the exercise of a judicial power. After a protracted and thorough litigation, such as this action has undergone, we think it will not suffice for the plaintiff merely to rise in court and ask for an amendment upon the trial of the character and controlling influence of the one proposed in this instance.

It follows that the judgment appealed from should be affirmed.

Judgment appealed from affirmed.

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


text:
    Lizzie Briel, Resp't, v. The City of Buffalo, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    New tbial—Newly discoveeed evidence.
    Where the complaint in an action for negligence alleges that plaintiffs injuries are permanent, the defendant has no right or reason to he surprised by testimony to that effect on the trial, and if it is unprepared to meet such allegations, and believes that, if given time, it would be able to do so, it should apply for a postponement. Where such course is not pursued a new trial will not be granted on the ground of newly discovered evidence to show that the injuries are not as great as the witnesses claimed them to be on the trial.

      Appeal by the defendant, the city óf Buffalo, from a judgment entered in the Erie county clerk’s office, August 3, 1892 ; and from an order of the special term entered on the same day, denying its motion for a new trial.
    The motion for a new trial was made on affidavits, and on the minutes of the court. No notice of motion for a new trial upon the minutes was made at the term at which the action was tried. The order from which this appeal is taken is as follows : “ Upon reading and filing the affidavits produced before me by the defendant herein, and the affidavits of plaintiff and others in opposition thereto, and after hearing Phillip A. Laing, counsel for defendant, and Wallace Thayer, counsel for plaintiff, it is now ordered that the application of the defendant for a new trial in the above entitled action on the judge’s minutes be and the same hereby is denied, with ten dollars costs to the plaintiff for opposing the said motion.”

      Phillip A. Laing, for app'lt; Wallace Thayer, for resp't.
   Macomber, J.

This appeal must be treated as one from an order denying the defendant’s motion for a new trial upon the ground of newly discovered evidence, and from the judgment entered in pursuance of the verdict of the jury.

The action was to recover damages for personal injuries sustained by the plaintiff on the 16th day of June, 1890, on Niagara street in the city of Buffalo, by being thrown from a wagon on account of an obstruction consisting of a pile of dirt in the street lying between Pennsylvania and Jersey streets. At the trial the plaintiff gave evidence, consisting of her own testimony and that of others, tending to show not only that her injuries -were considerable, but that they were of a permanent character, preventing her from doing, as successfully as formerly, ordinary housework. The plaintiff’s attending physician, who was called as a witness in her behalf, on cross-examination, gave evidence to the effect that plaintiff would, in his opinion, entirely recover from her injuries at the end of three or four months. The verdict was for $1,750.

The moving affidavits, used in behalf of the defendant, are designed to impeach the character of the plaintiff, and to show that her injuries were not as great as her witnesses claimed them to be at the trial. These are met by counter affidavits denying the imputations against the plaintiff’s character, and reaffirming the evidence adduced at the circuit in respect to the extent and permanency of her injuries.

We are of the opinion that if it was the intention of the defendant to deny the facts claimed to exist in behalf of the plaintiff, the time to do so was at the circuit. The affidavits are insufficient to show that the defendant had any right or reason to be surprised at the nature of the testimony adduced; for it was abundantly apprised of the claim made by the plaintiff in the complaint itself, where, among other things, it is alleged that, by reason of the injuries, “ this plaintiff suffered and sustained serious and permanent injuries to her head, face, arms, body, limbs and back; that this plaintiff’s head and face were bruised, and. her face was wounded, lacerated and grievously injured. * * * That this plaintiff was thereby prevented from using her body and attending to her usual business and work. * * * That plaintiff was informed and verily believes that her injury is of a permanent and lasting character; that her features have been seriously disfigured; that she is permanently disabled, etc.” Through these allegations of the complaint the defendant was fully apprised of the extent of the claim made, or which might be made, by the plaintiff upon the trial. And if it be true that the defendant at that time was unprepared to meet such allegations by proof, and still believed that it could, if given time, be able to do so, its proper course was to apply to the court for a postponement of the trial in order that the witnesses might be obtained. But no such motion was made. Due diligence would have required the agents of the defendant, with the plaintiff’s complaint before them, to ascertain before the case was moved for trial whether such evidence was available or not, and, having failed to do so, they encountered the objection interposed by one of the cardinal rules governing motions for a new trial made upon the ground of newly discovered evidence, namely, that due diligence was not exercised in preparing for the trial.

The judgment and order appealed from should be affirmed.

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


text:
    Herbert H. Charles, Resp't, v. William W. Prentice, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Verdict—Appeal.
    Where the question involved was purely one of fact, and was submitted to the jury in a charge to which no exception was taken, the verdict will not be disturbed on appeal.
    Appeal by the defendant, William W. Prentice, from a judgment of the county court of Wyoming county, entered on the verdict of a jury, January 13, 1892, in a case appealed for a new trial to that court by the defendant from a judgment of a justice of the peace.

      F. W. Brown, for app'lt; Elmer E. Charles, for resp't.
   Macomber, J.

The action is brought to recover the value for labor performed and materials furnished by the plaintiff to the defendant in drilling a well for the latter; and also for the value of a pump sold by the plaintiff to the defendant, and for labor in setting the same.

The defense alleged, as part of the agreement between the parties, that the well should be drilled to a sufficient depth to obtain plenty of good and wholesome drinking water for the defendant’s domestic purposes, and for such uses as a well is ordinarily put upon a farm, and that in case of failure thereof the plaintiff was to have nothing for his services, or for the materials furnished in drilling the well. Thence follows an averment that the plaintiff failed to fulfill his part of the contract and did not drill such a well as was called for by the agreement, and that the well did not produce plenty of good and wholesome drinking water for the defendant’s use.

The case was tried before the county judge of Wyoming county, and a jury, and all evidence adducible upon the questions in issue appears to have been given. The charge of the learned judge stated the issues between the parties and the questions for the jury with distinctness and precision, and every question that was properly cognizable by the jury was turned over to them for their decision. No exception was made to any portion of his charge, and no request by either party to add to it anything which the learned judge had failed to mention to the jury. It was, therefore, purely a question of fact and the determination of the jury, which was in favor of the plaintiff, in a verdict of $145.20, cannot be disturbed by us upon this appeal. Some exceptions to the rejection of evidence appear in the record, but they are wholly without merit and worthy of no comment.

Judgment appealed from should be affirmed.

Judgment of county court of Wyoming county appealed from affirmed, with costs.

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


text:
    In the Matter of the Application of The Cross-Town Street Railway Co. of Buffalo.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Railroad—Street—Appointment of commissioners.
    A surface railroad has no right to divide up its line > or route which has been projected through the whole or a part of a street, and which project has received the consent of the municipal authorities, and apply for the appointment of commissioners to determine whether its road should be laid and operated in a portion thereof.
    3. Same.
    Petitioner obtained the right at public sale to operate its road on a certain avenue for six blocks, and applied for the appointment of commissioners to determine whether it should be so constructed, alleging an inability to obtain the consents of the property owners, but such proceeding was abandoned. Thereafter this proceeding was brought for the appointment of commissioners to determine whether it should be laid in said avenue for two blocks, on a similar allegation. Held, that the application should not be granted, as it did not appear that it had made an effort and had failed to procure the requisite consents of owners for the entire distance as originally projected, or procured any consent of the city authorities to a change of route.
    Application by the Cross-Town Street Bail way Company of Buffalo, N. Y., for the appointment of three commissioners to determine whether its railroad should be built in certain portions of Prospect avenue, in the city of Buffalo.

      Box, Norton & Bushnell, for petitioner; Henry F. Allen, forcertain property owners, opposed.
   Macomber, J.

The petitioner,The Cross-Town Street Bail-way Company, of Buffalo, was organized under chap. 252 of the Laws of 1884. Pursuant to chap. 642 of the Laws of 1886, as amended by chap. 564 of the Laws of 1889, this company obtained the right, by purchase at public sale, to operate its surface railroad through certain streets in the city of Buffalo, among which was Prospect avenue, from Huron street to Pennsylvania street, a distance of 3,925 feet, being six blocks along Prospect avenue. The present application, however, is for the appointment of commissioners to determine whether the railroad should be laid and operated in that avenue from Huron street to Carolina street, a distance of only 1,175 feet, being two blocks along that avenue.

In the month of Jandary, 1892, this corporation applied to the general term, at Buffalo, for the appointment of commissioners to determine whether the railroad in Prospect avenue, as originally projected, should be constructed. It was then alleged, on the part of the petitioner, that, after proper efforts made in that behalf, it had been unable to secure the requisite number of consents of the property owners to enable it to proceed with the work. That application was opposed, and, by consent, the hearing was adjourned until the June term, 1892, at which time the company abandoned its application so made in the preceding January. The limitation prescribed by the statute, chap. 281 of the Laws of 1889, and § 93 of chap. 565 of the Laws of 1890, for procuring the consent of property owners, or the appointment of commissioners by the general term of the supreme court, was two years from the time of obtaining the consent of the municipal authorities of the city of Buffalo for the construction of such railway. But by contract entered into with the city of Buffalo, January 1, 1892, which was subsequently ratified and confirmed' by the legislature, chap. 151, Laws of 1892, the time in which to build the petitioner’s road in Prospect avenue was extended until the 6th day of February, 1896.

The petition before us shows that diligent efforts have been made by this corporation to obtain the consents of the property owners along that portion of the proposed route in Prospect avenue lying between Huron street and California street; but that such efforts have been unavailing, and that it has not and cannot procure the consents of a majority of one-half of the value of the property owners whose property bounded the proposed route, tinder this state of facts, it is contended by the learned counsel for the petitioner that this court has no discretion in the premises, but, upon being satisfied that the company, after diligent effort, has been unable to procure the requisite number of consents, is required to appoint three commissioners who shall inquire into the matter and report upon the same. The language of the statute is: “If the consent of the property owners required by any provision of this article cannot be obtained, the corporation failing to obtain such consents, may apply to any general term of the supreme court, held in the department in which it is proposed to construct its road, for the appointment of three commissioners to determine whether such railroad ought to be constructed and operated.” Thence follow provisions for giving notice to property owners. The section continues: “ Upon due proof of service of such notice the court to which the application is made shall appoint three disinterested persons, who shall act as commissioners, and who shall, within ten days after their appointment, cause public notice to be given of their first meeting in the manner directed by the court, and may adjourn, from time to time, until all their business is completed.” * * * “After a public hearing of all parties interested, the commissioners shall determine whether such railroad ought to be constructed and operated, and shall make a report thereon, together with the evidence taken, to the general term, within sixty days after appointment, unless the court, or a judge thereof, for good cause shown, shall extend such time, and their determination that such road ought to be constructed and operated shall be taken in lieu of the consent of the property owner hereinbefore required.” Section 94, chap. 565, Laws of 1890. In fortification of this position of counsel reference is made to Matter of Thirty-fourth Street R. R. Co., 102 N. Y., 343; 2 St. Rep., 33, and Matter of Broadway Surface R. R. Co., 34 Hun, 414.

But it seems to us that the petitioner’s application ought not. to be granted for the reason that it has failed to show, for the purposes of this motion, that it has made an effort to and has failed to obtain the requisite consents of the property owners along Prospect avenue from Huron street to Pennsylvania street. For aught that appears it has the requisite number of consents for the-construction of the road for its entire distance on this avenue. The consent of the city authorities of Buffalo has not been procured to any change of the petitioner’s route. We can not safely assume that such authorities would have given the consent to construct a surface railroad on this avenue only between Huron street- and Carolina street. Furthermore, there is nothing in the papers-to show that the company has abandoned any part of its right along Prospect avenue, but that, for aught that appears, at the-next term of court it may apply for the appointment of commissioners to determine whether a road shall be constructed for two-certain other blocks on this route, and so on until the entire distance is covered through the determination of the commissioners, The statute evidently did not contemplate a dividing up of a street in this manner. • The case of Matter of People's R. R. Co., 112 N.Y., 578; 21 St. Rep., 496, is not in any respect an authority for the contention here made in behalf of the petitioner, for that case merely holds that a surface railroad company, which has had the consent of the city authorities to build its railway through several streets of a city, is not obliged in its application to the court to ask for the appointment of commissioners for the building of a railway throughout all of such streets.

Counsel lays stress upon the expression in § 91 of chap. 676 of the Laws of 1892, which is as follows : “ Such railroad shall not be built, extended or operated, unless the consent in writing,, acknowledged as are deeds entitled.to be recorded, of the owners of one-half in value of the property bounded on, and also the-consent of the local authorities having the control of that portion of a street or highway upon which it is proposed to build or operate such railroad, shall have been first obtained.”

The expression, “ and also the consent of the local authorities having control of that portion of the street or highway upon which it is proposed to build or operate such railroad,” does not, as it seems quite clear to us, afford any warrant of authority to a surface railroad company thus to divide up its line or route which has been projected through the whole or part of a particular street and which project has received the consent of the municipal authorities.

It follows that the application should be denied.

Petitioner’s application for the appointment of three commissioners denied.

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


author: Haight, J.

text:
    The People ex rel. Lillie Stewart, Resp't, v. James A. Paschal et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1 Children—Eight of Orphan Asylum to bind out—Laws 1884, chap. 438.
    Relator placed her child in the Rochester orphan asylum, where it remained for over a year, when it was bound out by the president thereof to defendants. In the meantime relator had worked in the asylum and applied a part of her wages to the child’s support. Held, that there was no -such abaudoumeut by the parent nor absolute surrender of the child to the asylum as to give it jurisdiction under chap. 438, Laws 1884, to bind out or apprentice her, and that the act of the president was void.
    2. Same—Habeas corpus.
    If the remedy given by the act, by application to the surrogate’s court for cancellation of the indenture, is broad enough to afford relief on the ground that the foster parents are immoral and improper persons to have the custody of a child.it but affords a concurrent remedy,and does not prevent relief by habeas corpus.

      8. Same—Evidence.
    An error in the admission of the record of conviction of defendant, if any, is cured by the subsequent act of defendant in becoming a witness and giving material testimony in his own behalf, as it thereby becomes competent as bearing on his credibility.
    Appeal from a final order of the Monroe special term in proceedings upon a writ of habeas corpus, awarding to the relator the custody of her daughter, Mabel Stewart, otherwise known as Mabel Paschal.

      John F. Dorthy, for app’lts; George A. Carnahan, for resp’t.
   Haight, J.

Mabel was eight years of age on the 31st day of March last. On the 15th day of June, 1885, she was placed in the Rochester Orphan Asylum, and there continued to reside until the 22d day of November, 1886, at which time she was taken from the asylum by the defendants, and on the 8th day of June, 1887, William H. Sage, as president of the asylum, executed and delivered to the defendants an instrument in writing purporting to apprentice her to them until she should become of the age of eighteen years. During the winter of 1885 and 1886,, and up to about July, the relator was employed in the asylum, and during that time applied a portion of her wages, equivalent to one dollar per week, to the support of Mabel, and thereafter paid the asylum three dollars in July, four dollars in August, six dollars in October, five dollars in November, three dollars in December, to be applied in the support of Mabel and the relator’s other child, Grover.

The referee found as facts that the custody, control and guardianship of the child were never surrendered to the asylum by the mother by any instrument in writing; that the child was never committed thereto or placed therein by any magistrate or poor officer, or in any other legal manner,, and that provisions had been made by the relator for the support of Mabel in the asylum within the period of one year next preceding the 8th day of June, 1887, the date at which the defendants claim to have adopted her. The referee further found as facts that the defendant James A. Paschal, with the knowledge and assistance of Josia M. Paschal, maintained and conducted a hotel known as the “ Manning House,” No. 153 Andrew street, in the city of Rochester, from September, 1888, to April, 1891, for the purposes of prostitution ; that James A. Paschal had been twice duly convicted in the police court of the city of Rochester of the offense of keeping a disorderly house, or house of prostitution, and that the defendants are improper persons to have the care and custody of the child.

We are satisfied, from a careful reading of the evidence, that these findings should be sustained.

The law of 1884, chapter 438, § 5, provides that any corporation specified in the first section of the act may bind out an indigent or pauper child which shall have been absolutely surrendered to the care and custody of the corporation in pursuance of the provisions of the first section of the act, or which shall have been placed in the corporation as a pauper, in pursuance of the second provision of the act, or shall have been left to the care of the corporation with no provisions by the parent, relative or guardian for its support for a period of one year. The first section of the act provides that the guardianship of the person and the custody of an indigent child may be committed to any incorporated orphan asylum, or other institution incorporated for the care of orphan, friendless or destitute children, by an instrument in writing, signed by the parents of such child, or, if both parents be dead, and there is no legal guardian of the child, by the mayor of the city, or the county judge of the county, in which such asylum shall be located, upon such terms, for such time, and subject to such conditions as may be agreed upon by the parties to such written instrument. The second section of the act makes provision for the commitment of such child or children to an asylum by the superintendent or overseer of the poor. Mabel was not committed to the asylum by any instrument in writing, nor by any mayor, county judge, superintendent or overseer of the poor. Her mother had not abandoned her for the space of one year, but instead thereof had con-tinned, to pay for her support down to the time that she was taken from the asylum by the defendants in November, 1886. There had not, therefore, been an absolute surrender of the child to the asylum in such a manner as to give it jurisdiction to bind or apprentice her to the defendants. And the attempt of the president so to do is consequently void.

Upon the trial the record of conviction of the defendant, James A. Paschal, was read in evidence under his objection. It is now claimed that it was not. proper evidence against him in this proceeding. He, however, subsequently went upon the stand as a witness in his own behalf, and gave material testimony. The record of his conviction then became competent evidence as bearing upon his credibility. Code Civ. Pro., § 832. The error, if any, was by that act cured.

It is also contended that the relator should have proceeded under the Laws of 1884, chap. 438, § 12, instead of by habeas corpus. That section provides for an" application to the surrogate’s court of the county in which the foster parent resides for a cancellation of the agreement of adoption, and for the termination of the relation of parent and child, on the ground of cruelty, misusage, refusal of necessary provisions or clothing, or inability to support and maintain or educate the child, or of any violation of duty on the part of such foster parent towards such child. If the provisions of this statute are broad enough to afford relief on the ground that the foster parents are immoral and improper persons to have the custody of a child, it but affords a concurrent remedy, for the statute does not take from the supreme court any of its ancient powers or jurisdiction under a writ of habeas corpus.

The order should be affirmed, with costs.

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


author: Dwight, P. J.

text:
    The People ex rel. James Low et al., App'lts, v. George W. Wright, Mayor, et al.; Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Municipal corporations—Levy of tax—Laws 1893, chap. 148.
    The act of incorporation of the city of Niagara Falls (Laws 1893, chap. 148) provides that no tax can be ordered except by the concurring vote of a majority of all members of the common council in office, which vote shall be by yeas and nays, and a record thereof be entered at large on the minutes, and they are required to make an estimate in detail of all the expenses of the city for the current year, which must be spread on the assessment roll. The making of the estimate was left to a committee, who, at a meeting of the council, reported a budget, and recommended that it be spread on the assessment roll, which report and recommendation was adopted by a majority, voting by ayes and nay's, and entered on the minutes. Held, that the requirements of the charter were substantially complied with.
    Certiorari to the common council and other officers of the City of Niagara Falls to review their proceedings in respect to the ordering, levying and collecting of the general city tax for the year 1892.

      Eugene Cary, for relators; W. J. Byam and W. Caryl Ely, for def'ts.
   Dwight, P. J.

The return of the defendants was not traversed, and there are no facts in dispute.

By the act of incorporation of the City of Niagara Falls, its common council consists of the mayor and eight aldermen. Laws of 1892, chap. 143, § 30. The mayor has no vote, except in case of a tie. Id., § 33. A majority of the common council is a quorum for the transaction of business, but no tax can be ordered ‘‘ except by the concurring vote of a majority of all members of the common council in office, which vote shall be by yeas and nays, and a record thereof be entered at large in the minutes.” Id, § 34.

For the purposes of the general city tax in each year, the common council is required to make a careful estimate of all expenses of the city for the current, year, other than for school purposes; the aggregate of such estimate not to exceed one per centum of the assessed valuation of the real and personal property of the •city; such estimate to be made in detail, of the amounts severally required for the purposes enumerated. Id., §§ 178, 225.

The act provides that, for the purposes named in such estimate, and within the limitation before mentioned, the common council has power to raise by tax, from the taxable inhabitants and property of the city, such sums of money as they may deem proper. Id., § 178. By § 183, it provides in what manner such tax shall be spread upon the assessment roll; that such assessment roll, when completed, with the tax spread thereon, shall be filed with the city clerk, shall be by him reported to the common council, and, upon being approved and confirmed by the common council, shall be a lien upon the real estate described therein.

In the case in hand, the matter of making the estimate above mentioned was duly committed by the common council to its finance committee, who, at a meeting of the common council, duly held on the 3d day of October, 1891, made the following report and recommendation:

To the Common Council:

We respectfully submit the following budget as an estimate of our running expenses for the fiscal year ending the 1st Tuesday in February, 1893 :

Police fund.............. $8,500 00
Highway fund............. 20,000 00
Health fund................................. 1,000 00
Lighting fund 13,000 00
Water fund ................................. 500 00
Sewer fund.................................. 1,000 00
Fire department fund. ........................ 5,000 00
Contingent fund ............................. ■ 24,000 00
Total.... .... $73,000 00

Making a total assessment of $73,000 upon the assessment roll.

The total assessment of the value of all personal property and real estate is $8,899.655. As we cannot raise but one per cent of the total valuation this year, which amounts to.. $88,996 55 Less 3-10 of one per cent for paving............ 26,698 96

Leaves us............................. $62,297 59

Estimated receipts for licenses, fines, etc... 12,000 00

$74,297 59

And we hereby submit the above report as the estimate of the finance committee, and would ask that the city clerk be instructed to spread the tax roll, according to the above report, immediately.

Frank E. Eames,

Frank E. Smith.

At this meeting there were present the mayor and six aider-men. It was moved that the above report be approved and adopted. The vote was taken by ayes and nays, and all present voted in the affirmative; ail of which appears entered in the minutes of the meeting, which also contain the names of the aldermen present and voting.

We are of the opinion that the action thus taken and recorded by the common council constituted substantial compliance with the requirements of the statute in respect to fixing the amount of and ordering the general city tax to be levied and collected in the year 1892. There is in the statute no provision, in terms, requiring the common council to do either of these things, yet the duty of the common council to do both is plainly implied. In one of the provisions quoted, the power is conferred to raise the necessary moneys for certain purposes by taxation; and in another the character of the vote is prescribed by which the tax shall be ordered. The provision in respect to an estimate of the expenses of the city for the current year to be carefully made in items, and within a fixed limitation, can have no other purpose than to fix the amount of the tax to be laid, and the adoption of such estimate, and the direction that the amount so fixed be spread upon the roll, seems to leave nothing undone towards the “ ordering ” of the tax. All this is accomplished by the action of the common council above recorded. The careful estimate, in items, was made by the appropriate committee, and reported to the boards and this was made the action of the board by its vote approving and adopting the report of the committee. Moreover, the committee recommended that the tax, thus ascertained in amount, be spread upon the assessment roll by the city clerk, and this action was ordered by the board when the recommendation of the committee was adopted. The action of the common council then of the 3d of October was, we think, substantially equivalent to a formal resolution by that board reciting the report and recommendation of the committee, and resolving, severally, in accordance with each; and the vote by which that action was taken was in strict compliance with the statute ; a majority of all the members of the common council in office was present, in the persons of the six aldermen, not counting the mayor, and the motion was adopted by the unanimous vote of that majority, taken by ayes and nays, and entered in the minutes.

The statute is silent as to who shall spread the tax upon the assessment-roll, though very explicit as to how it shall be done; it was done in this case by the city clerk by direction of the common council, and being reported by him to the common council at a meeting of the. 10th of October, was approved and confirmed by them by vote of a majority of the quorum present. The contention of the relators has been that this action required the concurrent vote of a majority of all the members of the common council in office; but such is, of • course, not the case if, as we hold, the previous action, of the 3d of October, was the “ ordering of the tax,” which plainly this action of October 10th could not have been.

Either the tax had been previously ordered or it was never ordered at all. It certainly was not ordered by a vote of the common council which adopted and confirmed the clerical work of spreading the tax upon the assessment-roll; that action necessarily presupposes the ordering of the tax.

But it is urged, on the part of the relators, that the report of the finance committee, by the adoption of which, as we hold, the amount of the tax was fixed and the tax ordered, was so indefinite and ambiguous as not at all to fix the amount of the tax to be levied, and to leave a wide margin to the merely clerical officer upon whom the duty was laid to spread the tax. That report is quoted in full, above, and is, it must be said, somewhat peculiar in its methods of reaching the result intended. But it was evidently understood by those to whom it was addressed and whose duty it became to act upon it, and is, we think, easily understood upon a moment’s examination. It first gives seriatim the estimate of the committee of the sums necessary to meet the requirements of the several funds enumerated in § 178 (supra) of the statute, and foots them up at $73,000. It then states the total assessment of real and personal property for that year, at $8,899,-655, and points out that, consequently, the limit of the tax to be raised in that year is $88,996.55, and it then proceeds to demonstrate that such amount will be sufficient to meet all the estimated needs of the city for the year.

This it does by first deducting from the amount proposed to be raised the three-tenths of one per cent, of the total assessment allowed in § 225 to be raised for the public improvement fund, pavements, etc. This leaves only $62,297.59 to meet the $73,-000, estimated to be necessary for the other funds; but this deficiency, it shows, may be made up, and more, by the receipts from license fees, fines, etc., estimated at $12,000, which will give the sum of $74,297.59 applicable to the funds enumerated in § 178. So considered, the report is easily understood and without ambiguity. The amount of tax to be raised is reported at the limit of the statute, viz., $88,996.55. At that sum it was fixed and ordered to be spread upon the assessment roll, by the approval and adoption of the report; and at that sum it was spread upon the roll, as we are bound to assume, because nothing appears to the contrary.

The main question in this case does not appear to have arisen in any adjudicated case in this state, but the principles here adopted were applied, mutaiis mutandis, in two cases, by the supreme court of Iowa. West v. Whitaker, 37 Iowa, 598; Snell v. Fort Dodge, 45 id., 568. In the former of those cases, which was strikingly like the present in essential features, the court says, “ A mere formal entry might have been made and the auditor might have been directed to place the tax upon the tax list; but it is well settled that a tax cannot be enjoined for such technical defects. The purpose to levy the tax and have it collected is plainly manliest and substantially m the manner provided by law.”

In this case, we think, there was no failure to comply with the substantial requirements of the charter of the new city of Niagara Falls, and that the writ of certiorari should be quashed, and the proceedings of the defendants in all things confirmed.

So ordered, with costs to be paid by the relators.

Macomber, Lewis and Haight, JJ., concur.


text:
    Carl Klaweiter, Resp't, v. John Hubner, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Vendor and purchaser—Specific performance.
    Upon appeal from a judgment for plaintiff in an action to compel the specific performance of a contract for the sale of real estate, appellant claimed that the judgment could not be sustained for the reason that he had sold and conveyed the lands'in question to another person, and, therefore. performance of the contract was not within his power. The trial court was not requested to find upon the question, nor did the answer contain such an allegation, hut alleged willingness to complete, and the only evidence on the subject was that of one of plaintiff’s witnesses, who, on cross-examination, said he put the contract on record after he learned that defendant had sold the property to another person. Held, that the fact of such sale to a third party could not be determined on the appeal.
    2. Same—Tender.
    Where the consideration for the sale of real estate, as agreed in a written contract, is a certain sum of money and the assumption of a mortgage of a certain amount on the property, and thereafter the purchaser finds that the mortgage is in fact for a greater sum, a tender of a sum equal to the amount agreed, less the excess of the amount of the mortgage over the amount as stated in the contract, is a substantial compliance with the contract
    Appeal from a judgment entered upon a decision of the Erie special term.

      George W. Cothran, for app’lt; E. O. Farrar, for resp’t.
   Haight, J.

This action was brought to compel the specific performance of a contract for the sale of real estate. The facts as found by the court are in substance, that on the 3d day of March, 1891, the plaintiff and defendant entered into a written •contract by which the latter agreed to sell to the former the premises in question for the sum of $1,700.00, which was to be paid as follows: $25.00 on executing the contract, $475.00 on or about the first day of April, 1891, and the balance by the purchaser’s assuming a mortgage upon the premises- held by a loan .association, amounting to $1,200.00. On receiving the payment of $475.00 the defendant agreed, at his own proper cost and expenses, to execute and deliver to the plaintiff a warranty deed free and clear of all incumbrances, except the mortgage for the sum of $1,200.00. The $25.00 was paid at the time the contract was executed, and on the 13th day of April, 1891, the plaintiff tendered to the defendant $341.00 lawful money of the United States, and demanded that the defendant should execute and deliver to him a deed of the premises. The plaintiff at the same time tendered to the defendant a deed containing full covenants of warranty, without any clause reserving the amount of the ■mortgage, or an assumption to pay it by the grantee. The defendant refused to receive the money, or to execute or deliver the •deed. At the time of making the contract the defendant had represented to the plaintiff that the mortgage upon the premises was but $1,200.00, but at the time of the making of the aforesaid tender the plaintiff had ascertained that the mortgage upon the premises was for the sum of $1500.00, and that $141.00 only had been paid thereon, leaving a balance unpaid of $1,359.00.

The trial court found that the plaintiff was entitled to a specific performance, and ordered judgment accordingly.

It is claimed that the judgment cannot be sustained for the reason that the defendant had sold and conveyed the lands in question to another person, and that, therefore, performance of the contract was not within his power. JSTo such fact was found by the trial court, or requested to be found. The answer contains no such allegation, but instead thereof it alleges: “ That said defendant has always been, and now is, ready and willing to perform his part of said agreement." It is said, however, that the fact was made to appear upon the trial by the plaintiff’s own evidence. The only evidence bearing upon tie subject appears in the testimony of the witness Frank, who was sworn as a witness on behalf of the plaintiff. On his cross-examination he stated that “ I put this -contract on record after I had learned that Hubner had sold his property to another person.” This expression was called out by the defendant and not by the plaintiff. He does not state the source of his information, how he had learned of the sale, or whether it was anything more than a rumor or hearsay. Inasmuch as the trial court was not requested to find upon this question, we are inclined to the view that we"cannot now, from this evidence, determine the fact for the purpose of overturning the judgment.

It is further contended that the plaintiff had not performed the •contract on his part, and was, therefore, not entitled to a judgment for specific performance. It is true that he to the sum of $475 on or about the first day of April, 1891; and that instead of tendering that sum he only tendered the sum of $341. But the defendant had represented to him that the mortgage upon the premises only amounted to $1,200, whereas in fact it was for the sum of $1,500, and the sum of $1,359 still remained unpaid thereon. The amount tendered was the difference between the amount of the mortgage which the plaintiff had agreed to assume and pay and the purchase price. And, under the circumstances, we think it was a substantial compliance with the provisions of the contract.

The deed tendered to the defendant by the plaintiff was not in-accordance with the contract, and the defendant was under no obligation to execute the same. But he had agreed at his own proper cost and expenses to execute and deliver a proper deed. Upon the tender to him of the money, it became his duty to perform his agreement in this regard.

The judgment should be affirmed, with costs.

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


text:
    John Charlton et al., Pl'ffs, v. Cora I. Scoville et al., Def'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Pleading—Amendment on trial.
    In an action brought to foreclose a mechanic’s lien, the complaint alleged that defendant notified plaintiff’s workmen to cease work, and ordered them off the premises. The answer admitted the allegation. On the trial plaintiff gave evidence in support of his allegation, and defendant evidence denying the same, and thereafter moved to amend his answer by denying the aforesaid allegation, which motion was granted. Held, that evidence on the subject having been given by plaintiff, it was within the court’s discretion to allow the amendment.
    3. Contract—Abandonment—Damage.
    Where a contractor partially and improperly constructs a building and then abandons his contract, without having been paid anything thereon, and the owner tears down the structure and rebuilds it properly, he cannot recover, as an item of damage, the cost of rebuilding to the point where it was abandoned, but only the expense of tearing down.
    3. Same.
    Where owners wrongly construing a building contract assumed to terminate it for improper work, the contractors have a right to treat the contract as at an end, and the owners’ claim for damages for the difference between the contract price and the amount paid by them for the completion of the work should not be allowed.
    Cross appeals from a judgment entered upon the decision of the Brie special term. And also from an order permitting the defendants to amend answer.

      George Wing, for pl’ffs; Leroy Parker, for def'ts.
   Haight, J.

This action was brought to foreclose a mechanic’s lien. On the 26th day of August, 1890, the plaintiffs entered into a contract in writing with the defendant Charles H. Scoville to furnish the material and construct a dwelling house upon the premises of the defendant Cora L Scoville, for the sum of $3,980. The work was to be done in a workmanlike manner, according to-the plans and specifications attached to the contract, and under the direction and to the satisfaction of F. William Fisher, an architect. Charles II. Scoville was the husband of Cora I. Scoville and he entered into the contract with her knowledge and consent and for her benefit. The plaintiffs sub-let the carpenter work to another person, who commenced work upon the construction of the building on the 22nd day of September, and continued work thereon until the 3rd day of October, at which time he ceased work upon the premises, leaving the building unfinished. Subsequently this action was brought.

The trial court found as facts, that the building, as far as it had progressed, had not been constructed in accordance with the provisions of the contract; that improper materials had been furnished and that the work had not been performed in a workmanlike manner. That on the 30th day of September, notice was given to the plaintiffs to remove all labor and materials condemned by the architect and to provide materials called for in the specifications on or before the 4th day of October at nine o’clock A. M„ That the plaintiffs expressed a willingness to remedy the defects, and through their employes did remedy certain defects, but not all. That on the 3rd day of October they abandoned the work. That, thereupon the defendants took possession of the building, hired the same 'torn down at an expense of $40.50, and re-constructed the same to the point where the building was abandoned, at an expense of $123.50, using therefor the materials of the plaintiffs that were in the building and left upon the grounds, of the value of $318, and ordered judgment for the sum of $194.50, being the value of the materials used in the construction, $318, less the cost of re-building the same, $123.50.

This judgment was ordered upon the theory that the defendants had abandoned the contract on their part after the plaintiffs had committed a breach of the contract on their part. That the defendants, in using the plaintiffs’ material in the new structure, were obliged to pay therefor, less the sum of $123.50, which the defendants had suffered as damages in reconstructing the building to the point where it was abandoned by the plaintiffs.

The complaint alleged that on the 2d day of October, 1890, the defendants, without any just cause for so doing, notified the plaintiffs’ workmen to cease work upon the house and ordered them off the premises, forbidding them coming again upon the land, and that no work had been done or material furnished by the plaintiffs since.

The answer admitted that on or about the 2d day of October, 1890, the defendant, Charles H. Scoville, notified the plaintiffs and their workmen to cease work upon the said house and that the plaintiffs have done no work and furnished no material since that time. But they deny that he so notified the plaintiffs and their workmen without just cause. It, therefore, stood admitted upon the pleadings that the plaintiffs and their workmen were ordered to cease work upon the house by the defendants, and the issue left to be tried in reference thereto was whether such order was justified.

Upon the trial the defendants were permitted to give evidence that the plaintiffs and their workmen were not ordered to cease work upon the house and were not ordered off the premises, but on the contrary that they voluntarily abandoned the work. This evidence was taken under the objection that it contradicts the admissions in the answer. The court, however, admitted the same, remarking, “ If it turns out they are precluded by the pleadings that will end it” No exception was taken to the ruling. After the evidence was closed an adjournment was taken for a number of days, at which time the case was summed up by the counsel for the respective parties.

After the arguments had closed the defendants’ counsel asked leave to amend his answer so as to deny the allegations in the complaint “ that on the 2d day of October, 1890, the defendants notified the plaintiffs’ workmen to cease work upon the said house, and ordered them off the premises, and forbid their again coming upon the lands described in the complaint.” This was objected, to by the plaintiffs’ counsel, upon the ground that the evidence had been closed for two weeks, and that the plaintiffs had relied upon the admissions in the answer of the defendants, and if the answer was amended as requested there was no opportunity to prove the facts as alleged in the complaint. The court reserved its decision, but, in disposing of the case, it allowed the amendment of the answer and found as a fact that the building was abandoned by the plaintiffs, and refused to find the plaintiffs’ request that the defendants notified the plaintiffs’ workmen to cease work upon the house, and ordered them off the premises.

There would be just cause for complaint on account of these rulings, were it not for the fact that the plaintiffs had first opened the door and given evidence in support of their allegation. Evidence upon this subject was given as a part of the plaintiffs’ affirmative case, and also upon the rebuttal. The question having thus been tried out, it was within the discretion of the trial court to permit the answer to be amended so as to conform to the evidence given.

As we have seen, the trial court found that the plaintiffs ceased work upon the house and contract, and by this act they forfeited their right to recover any of the instalments under the contract thereafter to become payable. The building, as far as it had progressed, became the defendants'. They had, however, paid nothing thereon, and had, consequently, suffered no damages, unless, as it is claimed, it was so defectively constructed as to make it necessary that it should be torn down. If so, it was but an obstruction upon their premises, which they had a right to tear down, move away, or dispose of as they saw fit. It was tom down at an expense of $40.50.

The building was reconstructed according to the original plans and specifications. It cost $123.50 to reconstruct it to the point where it was abandoned by the plaintiffs. This the trial court found was a proper item of damages to be deducted from the plaintiffs’ claim. We are at a loss to understand upon what theory this item can be allowed. For, as we have seen, the defendants had paid nothing upon the building, and had suffered no damages further than the expense of tearing down the defective structure. We are aware of no rule that would require the plaintiffs to rebuild the building to that point. The value of the plaintiffs’ material upon the premises, that was used by the defendants in the new structure, was $318. From this sum there should be deducted the expense of tearing down the building, $40.50, and the plaintiffs should have recovered a judgment for the balance.

The plaintiffs were awarded judgment upon the theory that the defendants had abandoned the contract on their part. Their right to recover cannot be maintained urdess this theory is supported by the evidence. And this brings us to a consideration of the defendants’ appeal.

Section 4 of the contract provides that “ the contractors shall, within twenty-four hours after receiving written notice from the architect to that effect, proceed and remove from the grounds or building all materials condemned by him, whether worked or unworked, and to take down all portions of the work which the architect shall condemn as unsound or improper, or in any way failing to conform to the drawings and specifications, and to the conditions of this contract. The contractors shall cover, protect and exercise due diligence to secure the work from injury, and all damage happening to the same by their neglect shall be made good by them.”

Section 12 provides, “ Should the contractors at any time refuse or neglect to supply a sufficiency of properly skilled workmen or of - materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements upon their part, herein contained such refusal, neglect or failure being certified by the architect, the owner shall be at liberty, after three days written notice to the contractors, to provide any such labor or materials and to deduct the cost thereof from any money then due or thereafter to become due to the contractors under this contract. And if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall be at liberty to terminate the employment of the contractors for the said work, and to enter upon the premises and take possession of the materials thereon, and to employ another person or persons to finish the work and to provide the materials therefor. In case of such discontinuance of the employment of the contractors they shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractors, but if such expense shall exceed such unpaid balance, the contractors shall pay the difference to the owner. The expense incurred by the owner, as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties.”

On the 30th day of September, the architect certified that the work, labor and material upon the house was not being done in accordance with the plans and specifications. Thereupon the defendant, Charles H. Scoville, served upon the plaintiffs the following notice:

“ I herewith give you three days written notice, to expire October 4th, at 9 A. M., to remove the labor and materials condemned by the architect, Mr. F. William Fisher, and to provide such materials as are called for in the specifications.
“ I also notify you that I shall make use of the power given me in part twelve in the contract to terminate the employment of the contractor who shall do said carpenter work.”

And at the same time took from the plaintiffs’ possession the plans and specifications.

It will be observed that the notice requires the plaintiffs to remove the materials condemned and to provide such material as is called for by the specifications. And in the same connection notice is given that they terminate the employment of the contractors under the power given them under part twelve. So by the notice the plaintiffs’ right to proceed in the construction of the building was terminated, and yet they were required to provide the materials called for in the specifications. There appears to have been some confusion in construing § 12 of the contract. The language used therein might have been made more clear and specific. But we think the meaning is apparent. It is, in substance, that should the contractors fail to perform in any particular the provisions of the contract, and the architect should so certify, the defendants might give them three days notice to perform, and in case of their refusal, neglebt or failure to perform within the time specified, then the defendants would be at liberty to terminate the employment of the contractors and to enter upon the premises and take possession of the materials thereon, employ other persons and complete the building themselves, etc.

The defendants requested the trial court to find that, “The defendant, Charles H. Scoville, took possession of the said building and material and employed other persons to take the building down to the foundation at an expense of $40.50, and rebuild the same to the point where the plaintiffs left it, and to complete the same according to the original plans and specifications at an expense of $4480. for the carpenter work and materials, and $150 for sheet metal, tin and galvanized work, making a total expense to the defendants of $690.50 over and above the price agreed to be paid the plaintiffs." This finding was refused. The request appears to be in accordance with the undisputed evidence, and might properly have been found. This would entitle the defendants to recover their counterclaim, were it not for the fact that they had terminated the contract by their notice of September 30th, and by their taking from the plaintiffs the plans and specifications.

True, the plaintiffs abandoned the contract on the 3d day of October, as found by the trial court, but this was after the notice had been served upon them by the defendants to which we have referred. The defendants had no right to then terminate the employment of the plaintiffs. This, as we have seen, could not be done until after October 4th, at 9 A. M., and not then unless the architect should certify that the plaintiffs had failed to correct the defects and perform the contract. But the defendants having-assumed to terminate the employment on the 30th, the plaintiffs had the right to accept the situation thus presented and themselves treat the contract as at an end.

In view of the situation thus presented, we think that the defendants’ claim for damages of the difference between the contract price and the amount paid by them for the completion of the work should not be allowed.

The order appealed from should be affirmed, and the judgment should be modified by awarding to the plaintiffs the sum of $318, less $40.50, amounting to $277.50, with interest on that sum from the 13th day of November, 1891, and, as so modified, affirmed, with the costs of this appeal to the plaintiffs.

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


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    William H. Weaver, Resp't, v. William W. Haviland, Individually and as Adm'r, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Cebditob’s action—Limitation.
    The right of a creditor to maintain an action to set aside a deed as given in fraud of the rights of creditors, does not accrue until after his recovery of judgment in this state against the debtor and the return of the execution thereon unsatisfied.
    3. Same.
    The cause of action is not deemed to have accrued until the discovery of the fiaud by the creditor, and not until his right to maintain the action has accrued.
    3. Appeal.
    The general term_ will not on review go outside of the findings for the purpose of discovering testimony upon which to reverse a judgment.
    Appeal from a judgment entered upon a decision of the Ontario special term.

      D. B. Badcenstose, for app’lt; George D. Reed, for resp’t
   Haight, J.

This action was brought to recover certain funds in the hands of the defendant and to set aside a conveyance of real estate on the ground that the same was made in fraud of the rights of creditors. The facts found by the trial court are in substance as follows:

On the l7tli day of September, 1878, Almond Haviland died leaving a last will and testament, in which he bequeathed all of his real and personal estate to his wife Phoebe Haviland during the term of her natural life. The property devised and bequeathed by him consisted of a house and lot in the village of Geneva and a certain mortgage upon premises in the state of Michigan executed by Henry S. Weaver and wife. On the 31st day of April, 1880, Phoebe Haviland sold and assigned the mortgage to one John D. Fish. At the time of making such sale she represented to Fish that she was the sole owner of the mortgage, and to induce the purchase thereof by him falsely and fraudulently represented that there was due and unpaid upon it the sum of $2,600, whereas in fact there was due and unpaid the sum of only $2,100. Thereafter Fish brought an action against her in the state of Michigan, where the assignment of the mortgage was made, to recover damages for the false and fraudulent representations made by her to him, and upon the 9th day of June, 1881, duly recovered a judgment therein for the sum of $454.64 damages and $50.36-costs. Thereafter he brought an action against her in this state upon the judgment so recovered in the state of Michigan, and on the 9th day of March, 1886, recovered a judgment that was-entered in the Ontario county clerk’s office for $667.47 damages and costs. An execution was issued thereon to the sheriff of that county, it being the county in which she resided, and the same was returned wholly unsatisfied. And before the commencement of this action the judgment was by Fish, with all of his rights and equities arising thereon, duly assigned and transferred to the plaintiff.

On the 2d day of June, 1891, seven days before the recovery of the judgment against her in the state of Michigan, she conveyed to the defendant all of her interest in the house and lot devised to her by her deceased husband, and transferred to him all of the moneys received by her from Fish upon the transfer of said mortgage, and that such conveyance and transfer were without consideration and were made with the fraudulent intent to place the property out of her hands so that the same could not be reached upon said judgment. That the defendant did not claim to be the owner of the mortgage when the same was assigned to Fish, or did he ever claim to own the same until after the recovery of the-judgment hereinbefore specified. Upon the conclusion of the trial of this action, and after the parties had rested, the defendant’s counsel stated that the plaintiff on the proofs would be entitled to recover were it not for the statute of limitations. The trial court-thereupon found as a conclusion of law that six years had not elapsed since the plaintiff’s right of action accrued, and ordered judgment in favor of the plaintiff for the relief demanded.

This action was commenced on the 13th day of February, 1892, and, as we have seen, the judgment upon which this action is founded was recovered on the 9th day of March, 1886. Six years, therefore, had not elapsed since the recovery of that judgment and the return of the execution thereon.

The right of the plaintiff to maintain this action did not accrue 'until after the recovery of the judgment against Mrs. Haviland in-this state and the return of the execution thereon unsatisfied. Code Civ. Pro., §§ 1871,1872.

Section 380 of the Code provides that “ the following actions must be commenced within the following periods after the cause of action has accrued,

Section 382, subd. 5, “ An action to procure a judgment,. other than for a sum of money, on the ground of fraud, in a case which, on the 31st day of December, 1846, was cognizable by the court of chancery. The cause of action, in such a case, is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud.”

These provisions must be construed together, and so construed it follows that the plaintiff’s cause of action is not deemed to have accrued until the discovery of the fraud by him or the person under whom he claims, and not until after his right to maintain the action has accrued by the recovery of the judgment against Mrs. Haviland in this state, and the return of the execution thereon unsatisfied. Gates v. Andrews, 37 N. Y., 657; Eyre v. Beebe, 28 How. Pr., 333.

The cause of action herein is one covered by the subdivision of the section above quoted.

The conclusion of the trial court was, therefore, correct, and should be sustained.

It is contended that the plaintiff, or Fish, his assignor, had a complete remedy against the defendant, against which the statute of limitations had run. That at the time the mortgage was transferred to Fish the defendant did the entire business, and personally received the money upon the mortgage, and that, consequently, an action could have been maintained against him to recover back the amount of the over payment, if any.

The defendant has alleged in his answer that he was the owner of the mortgage and entitled to the proceeds thereof, and that he did all of the business in reference to the transfer to Fish. But the difficulty with his position is, that no such facts are found by the trial court, or requested to be found, and it is not the practice of this court, on review, to go outside of the findings for the purpose of discovering testimony upon which to reverse a judgment.

It is true that the testimony of the defendant, as taken before-the referee in supplementary proceedings instituted upon the return of the execution, tends to show that he personally transacted the business with Fish in Michigan. But this we regard as in conflict with the findings of the trial court in this action, and also that of the court which rendered the judgment in the state of Michigan.

In this action it is found that, in order to induce the purchase of the mortgage by Fish, Phoebe Haviland falsely and fraudulently represented that there was due and unpaid upon the mortgage the sum of $2,600, and that she transferred to the defendant the moneys received by her upon the transfer of the mortgage with the intent to place the same out of her hands so that the same could not be reached upon the judgment then about to be recovered against her by Fish. In the action brought in Michigan it was alleged that the mortgage was purchased of her and that she represented that there was at that time due the sum of $2,600 and that Fish, the plaintiff in that action, relying on such statement by her paid to her that sum and took an assignment from her of the mortgage. And upon the trial those facts were found true, as appears from the judgment therein entered.

It is, therefore, not apparent that a cause of action at law could have been maintained by Fish against the defendant immediately after the transfer of the mortgage to Fish. Certainly no such action could have been maintained under the findings of the trial court as they stand. And we would not be justified, under the practice or upon the record before us, in supplying findings of fact that would show that such an action could have been maintained.

We have not omitted a careful examination of the allegations of the complaint. In none of them have we found an allegation that the defendant transacted the business with Fish or that Fish paid the money for the assignment of the mortgage to him. The allegation that Phoebe Haviland turned over all of the avails of the mortgage to the defendant at the time of the assignment does not establish the fact that Fish paid to him or knew that he received the money.

The answer contains no allegation to the effect that Fish had an adequate remedy at law against the defendant from the time that the money was paid over upon the transfer of the mortgage and that the statute of limitations had run thereon before this action was commenced.

We think, therefore, this defense is not available to the defendant. Ostrander v. Weber, 114 N. Y., 95, 22 St. Rep., 979; The Town of Mentz v. Cook, 108 N. Y., 504; 13 St. Rep., 845.

The judgment should be affirmed, with costs.

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


text:
    Julia Marion, App'lt, v. Charles Farnan, Ex'r, Resp't

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Services—Members of family—Nonsuit.
    In an action to recover for services rendered testatrix, it appeared that she was old and feeble, and without means of support, except a little real estate, and left her son’s residence with the expressed intention of going to see if plaintiff, her daughter, a dressmaker, would not stay with her if she went to housekeeping; this plaintiff did, doing all the house work, and providing support by her trade. Testatrix stated several times that plaintiff should not lose by what she did for her, and made a will partially in her favor, but revoked it by one in favor of a son. Held, that these , facts raised a question for the jury as to whether the services were rendered at the request of testatrix, and with an expectation on her part to compensate plaintiff by will, and that a nonsuit was improperly granted.
    Appeal from a judgment entered on a nonsuit granted at Monroe circuit.

      B. F. Turk, for app’lt; J. A. Stull, for resp’t.
   Haight, J.

This action was to recover pay for services rendered, etc., to the defendant’s testatrix in her The defense was that the services were rendered by the plaintiff for her mother, as a member of her family.

Ordinarily, where one person renders services to another at his request, the law will imply a promise to pay therefor what the same is fairly and reasonably worth ; but between persons living together as members of the same family, bearing towards each other a family relation, no promise to pay will be implied, and no action will lie unless the services were rendered at the request of the party receiving them under a promise to pay therefor, or under such circumstances as show that the party receiving them expected to pay and the other to receive pay therefor, or that the services were rendered with the understanding between the parties that compensation therefor would be made by will. Ulrich v. Ulrich, 49 St. Rep., 33; Lynn v. Smith, 35 Hun, 275; Robinson v. Raynor, 28 N. Y., 494; Shakespeare v. Markham, 10 Hun, 311-322; Reynolds v. Robinson, 64 N. Y., 589; Reid v. Farrar, 6 St. Rep., 199-201; Wilsey v. Franklin, 57 Hun, 382; 32 St. Rep., 711.

Mary Farnan died on the 20th day of July, 1889, the owner of real estate in Charlotte of the value of between $6,000 and $7,000. She had been an invalid for a number of years, had seven children, all of whom had left home, and were supporting themselves. "The plaintiff had become of age, left home, learned the trade of dressmaking, and in 1883 was engaged in business in Rochester for herself. The testatrix and her husband had broken up housekeeping, and had for some time been living at different places with their children. Daring the winters of 1882 and 1883 the testatrix lived with her son in Pennsylvania. In May, 1883, she returned to Charlotte, and with the plaintiff commenced keeping house; herself, her husband and the plaintiff comprising the family. Her husband was aged, and unable to do anything toward their support; she was feeble in health, and had no means of support aside from her real estate, and the plaintiff by her work in dressmaking chiefly provided them with support, doing all of the house work, including the washing, ironing, cooking, etc. In the spring of 1884 the defendant returned home at the request of the plaintiff, and thereafter continued to live in the family, and assisted in the support of his parents. In August, 1885, the plaintiff was married, and some time thereafter kept house with her husband for about five months, after which she and her husband returned to her mother’s house, and there continued to live until her mother’s death in 1889, doing all the house work, nursing and caring for her mother as she had previously done; The testatrix first made a will about the year 1880, in which she gave the use of her real estate to her husband during life, and upon his death she gave the same to her children. During the year 1885, she made another will, in which she devised one-third of her property to the plaintiff, and the other two-thirds to the defendant. On the 25th day of March, 1889, four months before her death, she made her last will and testament, which has been admitted to probate, devising all her property to the defendant. So far the facts appear from the direct testimony of the witnesses, and establish that the services were rendered by the plaintiff for her mother in her family.

Were such services performed at the request of the mother?

The plaintiff is not a competent witness as to any personal transaction or communication had in reference thereto with her deceased mother. As we have seen, in May, 1883, the plaintiff was engaged in her business of dressmaking in the city of Rochester, and the mother was living with her son in Pennsylvania. Margaret 0. Farnan, wife of the son with whom the mother was living, testified that her mother-in-law talked a great deal with her about going home to commence keeping house again, and often asked witness if she thought Julia (the plaintiff) would come and live with her; and when she got ready to go home she said that she would go home and see if Julia would come home and stay with her; that she would like to go home and keep house, would like to have Julia come home and stay with her; she felt poorly, and did not feel able to do anything herself.

Mary Tiernan, a sister of the plaintiff and defendant, testified that her mother told her that she wanted Julia to come home, that she would go to housekeeping if Julia would come home and live with her; that she expressed this more than once, and was always speaking about wanting Julia to come home; that, she left and went home, and that Julia t-hei'eafter left Rochester, went home and stayed with her mother until her death, excepting a few months that she was keeping house after her marriage.

From this evidence it appears that the testatrix left her son’s residence in Pennsylvania with the expressed intention of going home to see Julia, to see if she would come and stay with her if she should again go to housekeeping. It also appears that she returned home to Charlotte with Julia and recommenced housekeeping. No witness was present and heard what transpired between the testatrix and Julia; but we think from the testimony the jury would have been justified in drawing the inference that the plaintiff returned with her mother and commenced housekeeping at her request. Was it understood between the parties that the plaintiff should be compensated for her services by will or otherwise ?

Upon this branch of the case much evidence was taken to which we shall make but slight reference.

Sarah McKee testified to having a talk with the testatrix in reference to Julia, and heard her remark that she did not know how she would get along without Julia. That Julia had, bought a black flannel dress for her, that she did not know how she would do without her, and said that she “ would never lose anything by what she was doing for her.”

Martha Yayon testified that at one time she had a conversation with the testatrix, in which she said that “Julia and Charlie should have the place; she said they were fixing up the house, Julia bought the windows and Charlie clapboarded the house and they painted it, and they two should have the property when she was through with it. That she did not know what she would do without Charlie and Julia, that her husband was not able to work.”

Rosanna Ambrose also testified to having a conversation with her in July or August after Julia first came home; that Julia was making a dress for her when testatrix came in and commenced talking, saying, “ I know who I am going to leave my property to, I am going to leave it to the children who stay at home and work and support me; Julia has come home to stay and to work, and I would like to have Charlie come home, and if he comes home and helps Julia support his father and I, at my death all I have got is theirs, I will divide it equally between them.”

Tlíese and many other expressions of like character appear, some of which were made in the presence of Julia. She not only promised, but actually made her will giving Julia one-third of her estate. These acts and declarations indicate quite clearly that the testatrix at that time intended to compensate Julia for her services out of the property which she should leave at her decease, and they may have induced her to remain with and serve her mother expecting the compensation promised.

An examination of the cases to which we have referred shows that the courts make a distinction between cases where the child has become of age, been away from home, established a business and supported himself, and then returns upon the request of the parent; and one where the child has continued to live with the parent after arriving at age and has never had any other home.

It appears to us that the evidence raises a question for the jury, and that the trial court erred in directing a non-suit.

Judgment should be reversed and new trial granted, with costs to abide the event.

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