text:
    In the Matter of the Petition of HELEN S. AUCHMUTY to Vacate an Assessment, etc.

      Section 27 of chapter 383 of 1870 — when an assessment should he reduced wider.

    When a court should, under section 27 of chapter 383 of 1870, reduce an assessment upon lands of a party aggrieved thereby, by deducting such sum as is in the same proportion to such assessment as is the whole unlawful increase to the whole amount of the expense of the improvement, considered.
    Appeal from an order made at a Special Term, vacating an assessment for setting curb and gutter-stones, and for flagging First avenue from Sixty-fifth to Eighty-sixth streets.
    The improvement in question was made some time in the years 1871 and 1872, and on the 20th of February, 1873, an assessment therefor was confirmed.
    The contract under which the work was done specified the following prices for the several kinds of work:
    Furnishing and setting curb and gutter-stones, per running foot, . .$3 35
    Excavating rock, per cubic yard, .... 3 00
    Furnishing and laying flag-stone, per square foot, . 0 00
    The return of the contractor, for work done, was as follows, viz.:
    Excavating 150 yards of rock, at $3, . . . 450 00
    Setting 7,243 feet of curb and gutter, at $3.35, . 24,264 05
    Laying 89,596 square feet flagging, ... 0 00
    $24,714 05
    Deduct excess of inspection (292 days) at $3, . . 876 00
    $23,838 05
    The expenses were :
    Surveyor’s fees,.$1,009 95
    Inspector’s fees (352 days), . . . 1,056 00
    - 2,065 95
    In all, . $25,904 00

      The contractor found a considerable amount of the work already done when he commenced, viz. : in front of the entire block between Sixty-fifth and Sixty-sixth streets, on both sides, and of si number of lots between Sixty-ninth and Seventieth, and Seventy-third and Seventy-seventh streets curb and gutter-stones had been set and flagging laid; between Eighty-third and Eighty-sixth streets the curb and gutter-stones had been set, but no flagging was laid.
    The contractor did not interfere with the work that he found already executed, and which had been done by the property owners at their own expense.
    The assessors, finding no charge for flagging on the return of the cost of work, assessed the whole expense upon the lots where curb and- gutter-stones were set, and did not assess those lots in front of which only flagging was laid. In a proceeding by the Protestant Episcopal public school to vacate the assessment for this work upon its property, the principle of assessment was disapproved by the Court of Appeals, and it was hold that the lots in front of which only flagging was laid were benefited thereby, and that they should have been assessed in proportion to such benefit.
    In this case, and in the eighteen other cases which were brought up for review on this appeal, it was shown that the whole amount of -work done in front of lots not assessed was 9,599 square feet of flagging; that twenty-two and one-fifth cents per foot was a fair and reasonable price therefor, and that at that rate the cost of such work was $2,132, which, deducted from the total expense, leaves $23,772 as the amount that should have been distributed upon the property which was assessed. The city claimed that the assessment should not be vacated, but should be reduced in proportion to the amount of such general reduction. The judge at the Special Term refused to reduce, and vacated the assessments. From the orders thereupon entered this appeal Is taken.

      J. A. Beall, for the mayor, etc., appellant.

      T. F. Neville, for the petitioners and respondents.
   Brady, P. J.:

It is conceded that the assessments to which the proceedings herein relate, under the adjudication in the application of the Protestant Episcopal public school, made by the Court of Appeals, and declared on the first of March of the present year, cannot be maintained. It seems that the assessor assessed the whole expense for flagging upon the lots where curb and gutter-stones were set, and did not include the lots in front of which only flagging was laid, and this principle of assessment has been disapproved. It was held that the lots in front of which only flagging was laid were benefited, and should have been assessed in proportion to such benefits. It is quite clear, from the evidence in this matter, that the whole amount of the work done in front of the lots that were not assessed was 9,599 square feet'of flagging, and it was conceded that twenty-two and a-half cents per .foot was a fair and reasonable price therefor. This work, at the rate named, would make its cost $2,132, which deducted from the total expense assessed, namely, $25,904, would leave $23,772 as the amount which should have been distributed upon the property which has been assessed. Under these circumstances, upon the consideration of those applications at Special Term, the appellants insisted that the assessment should not be vacated, but should be reduced in accordance with the results just stated ; but the learned justice presiding rejected this proposition and, as it already appears, absolutely vacated the assessments. The act of 1870, chapter 383, section 27, provides that “if upon such hearing it shall appear that, by reason of any alleged irregularity, the expense of any local improvement has been unlawfully increased, the judge may order that such assessment upon the lands of said aggrieved party be modified by deducting therefrom such sum as is in the same proportion to such assessment as is the whole amount of such unlawful increase to the whole amount of the expense of such local improvement.”

And inasmuch as the objection to the assessment here was for an unlaAvful increase, the statute mentioned would seem to embrace and to authorize the reduction or modification asked. The power to do this, under that statute, was determined in the matter of the St. Joseph's Asylum, (69 N. Y., 357.) It is said, however, in the matter, of the Protestant Episcopal public school, to which reference has been made, that the Court of Appeals have declared that the petitioner’s assessment in that case could not be reduced, but it seems from the opinion that there was no fixed sum or criterion for the court to act upon, and it was said that the court would occupy the position of the assessors, and the assessment would be according to its judgment, instead of the judgment of the assessors ; besides, it would have no power to make the assessments upon the omitted parcels, and thus make a valid assessment for the improvement.”

That case differs from this, therefore, because there is in this case a fixed sum or criterion for the court to act upon, the exact amount of the unlawful increase having been ascertained. Indeed a tabular statement, presented for the consideration of the court, shows the amounts assessed, and the amounts which would remain after a reduction in a proper proportion. It is thought, under these circumstances, that the orders made were erroneous, and that a proper reduction, including the unlawful excess, should have been ascertained and directed by the Special Term.

It is ordered, therefore, that the matter be remitted to the Special Term for its action in the respect mentioned.

INGalls and DaNiels, JJ., concurred.

Proceedings remitted to the Special Term for its action, as directed in the opinion.


source: Caselaw Access Project

author: Brady, P. J.:

license: Public Domain

text:
    In the Matter of the Petition of ELIZABETH JONES AND WILLIAM B. WHITEMAN, Executors of EDWARD JONES, Deceased, to Vacate a Sale for Assessments, etc.

      Application to vacate an assessment —a purchaser at the assessment sale is not a necessary party thereto.

    On an application, made under chapter 338 of 1858, to vacate an assessment, it is not necessary to notify one to whom the property has heen sold for a failure to pay the assessment, although the time to redeem from the sale has expired, and a lease of the property has been delivered to the purchaser.

      Appeal from an order made at Special Term, dismissing the petition of tbo appellants to vacate a corporation sale of certain land, for the non-payment of an assessment.
    On the 2d day of July, 1869, an assessment amounting to eighty-four dollars was imposed on the lands of the deceased, Edward Jones, known as lots ward numbers twelve, thirteen, fourteen and fifteen, in block number 1,286, in the Twelfth ward of the city of New York, for opening Twelfth avenue. On the 24th day o.f December, 1874, the assessment remaining unpaid, the said lots were sold at public auction for the term of 1,000 years. Ward numbers thirteen and fourteen were redeemed, but the other lots, numbers twelve and fifteen, were not, and on the 10th day of September, 1877, a lease thereof was delivered to S. N. Ga Nun, the assignee of the purchaser.
    About the 1st of June, 1878, the petitioners brought this proceeding, joining the lessee as a party thereto, alleging that the sale was invalid for errors specified.
    The alleged error was proved on the hearing, but the lessee did not appear, and it was objected on the part of the city that he could not properly be made a party to this proceeding, and that his vested rights could not be disposed of therein unless he chose to come in and submit to the jurisdiction of the court.
    This objection was sustained by the court, and an order entered dismissing the petition, from which this appeal is taken by the petitioners.

      Jas. A. Deering, for the petitioners, appellant.

      J. A. Beall, for the mayor, etc., of New York, respondent.
   Brady, P. J.:

The sale of the land, to which reference is made in the petition, was irregular, and, therefore, null and void. (In the Matter of Louisiana St. John, MSS. opinion, Brady, J.; In the Matter of Deering, 55 How. Pr., 296.) But a lease having been executed, and the objection having been taken that the lessee was not notified of this proceeding, the application to set aside the sale was, it seems, for that reason deified. The proposition maintained, if this statement be correct, is that he should be made a party, and in some other form of remedy.

This view is regarded as erroneous. The owner of the land has no relations, arising from proceedings of the character mentioned, with any other person than the corporation of the city of New York. It is that body that undertook to sell the land, and the lessee must seek against it, such remedy, as he may have for any injury sustained by him growing out of its unauthorized assumption of power.

The act of the Legislature, discussed in the cases cited, provides for a summary hearing pursuant to the one known as chapter 338 of the Laws of 1858. It contemplates a hearing between the aggrieved party and the corporation, and none other, and expressly declares that upon proof, such as is given in this case, such sale shall be sot aside, and the respective rights and liabilities of the assessed persons, and of the mayor, aldermen and commonalty shall become and be the same as if such sale had not been made. It would seem to be unjust to impose upon the owners of fthe land the obligation of resorting to a more formidable and expensive remedy, involving the pursuit of the unlawful lessee, to remove an unjust and unlawful cloud upon their title. The sale, it may also be remarked, being void, the purchaser acquired noth-hg by his lease. If any right exists in his favor, it would be to recover such damages from the city as he may have sustained, occasioned by his purchase. The buyer of property upon a sale for taxes and assessments must look to it that the sale is authorized by the law of the land, otherwise he buys at his peril.

For these reasons the order made at Special Term should be reversed, and the application granted, with costs.

INGalls and Daniels, JJ., concurred.

Order of Special Term reversed, and the application granted, Without costs.


author: Daniels, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel., AUGUST ENGEL, v. THE JUSTICES OF THE COURT OF SPECIAL SESSIONS.

      Indecent assault and battery — what sufficient to establish it in the case of young girls.

    To sustain a conviction for an indecent assault and battery upon young girls, under twelve years of age, it is not necessary to establish positive resistance on their part, it is sufficient if their persons were indecently interfered with, without their actual assent.
    CektioraRI to the court of Special Sessions of the city and county of New York, to review the conviction of the relator of an indecent assault and battery upon the person of a young girl.

      William F. Ilowe, for the relator.

      Benj. K. Phelps, district attorney.
   Daniels, J. :

The oifence for which the prisoner was convicted, was that of an indecent assault and • battery upon the person of a girl who had not then arrived at the age of twelve years. It appeared that his place of business at the time was on Third avenue, in the city of New York. The testimony of the girl was that the assault took place at that establishment. She put the time as about the 7th of May, 1878, and in the fact that the prisoner then occupied this place, she was corroborated by the testimony of another girl about a year older than herself, who was also In the habit of visiting him at his place of business. He testified that he left there about the 1st of March, 1878, and for that reason it was claimed that the evidence of the complaining witness was not reliable as to the other facts stated by her in the course of her examination. But upon this subject the preponderance of the testimony was against the prisoner, for the evidence given by his own clerks, indicated the existence of the probability that he continued to transact his business at the place where the assault is stated to have been committed, up to, and including the time mentioned by the complaining witness.

In support of the writ issued to review his conviction, it has been further urged by his counsel that the assault was committed upon her person with her assent, but the evidence does not sustain that position. Her testimony is, in effect, that he manipulated the under part of her clothing, and held her hands so that she could not move them, when he had the door of the room locked in which they were. She further stated that she pushed him away, and told him to stop, when he put his hands down her person, and tried to loosen her drawers ; that he took off a portion of her clothing and put his foot up to keep down her limbs, and she said that she told him that she would tell her father if he removed her drawers, and when he proceeded further she told him to stop, and cried, but .he did not stop. This evidence very plainly shows that, at the most, she simply submitted to what he had then the power of doing with her person; and in that respect her testimony is sustained by the evidence of another girl,- who was with her upon sonic of the occasions when she visited the plaintiff’s place of business. She says that the prisoner tried to take liberties with the complainant, and she told him to stop. The evidence of these two witnesses-was further sustained by one of the other girls who frequented this place, at the instance of the prisoner, with the complainant. The testimony of all of them is that they were in the habit of going there by his invitation, and that he, from time to time, gave them money, and indecently handled their persons. His own testimony, and that of his two clerks who were sworn as witnesses in his behalf, also confirmed the existence of the facts that these girls visited his place and repeatedly received money from the prisoner.

But he denied positively having made any assault upon the person of the complainant. But upon that subject the burden of the testimony was against him, and, although he was shown to be a person of general good character, the proof was still sufficient to justify the justices in finding him guilty as they did. Within all the authorities, the testimony of the complainant showed that an assault and battery had been committed upon her by the prisoner. With girls so young as this one it has not been required, in order to sustain a conviction for an indecent assault, that evidence of positive resistance should be given in the case. It is enough to constitute tbe offence, that the person is submitted to the acts of the party against whom the complaint is made.

The distinction may be a slight one, between submission and implied assent, but it nevertheless exists, and is sustained in cases of this description by the authorities. Young girls, without knowledge, or experience, of the enormity of outrages of this nature, cannot be expected to make the same degree of resistance to them that others would bo inclined to, having a proper appreciation of the injury they would cause to their persons, and tlioir positions in society. They are more especially for that reason within the necessary protection of the law, and where persons take advantage of their ignorance and inexperience for the purpose of violating, outraging, or indecently interfering with their persons, and no actual assent is given to the act, an offence against it is committed. Upon this subject it has been held that if a master take indecent liberties with a female scholar without her consent, though she do not resist, he will be guilty of a common assault. (Nichols’ Case, Russell & Ry., 130; Roscoe on Crim. Ev. [5th Am. ed.], 287, and see other cases there cited; Day’s Case, 38 E. C. L. [9 C. & P., 722], 419; Regina v. Case, 1 English Law and Equity, 544.)

The evidence, within the rule established by these authorities, was not only sufficient to justify, but beyond that it required the prisoner’s conviction. And, while the punishment imposed upon him was severe, it was no more so than his offence deserved, and the protection of unsuspecting and confiding girls required. It appeared that the prisoner had been for months in the practice of inducing these girls to frequent his place of buisness for improper and immoral purposes, and as the commission of this offence was properly established by evidence, it was the duty of the court to punish him for it, with such a degree of severity as would tend to prevent its repetition by himself as well as others. It has been urged that the execution of the sentence should have been stayed, upon the information given by him that he intended to secure a review of the conviction ; but it does not appear that he was at the time ready to become bound with sureties as the statute required, to entitle him to a stay, and for that reason it cannot be held that the justices improperly refused his request. But if it could, this is not the remedy for a correction of the error. It did not affect the conviction, as that bad already become complete, and it was supported by tlie evidence given in tlie case.

It was a matter to be redressed, if at all, in another way, if the Court of Special Sessions did improperly refuse to stay the execution of the sentence. There is nothing in the case which would justify the interference of this court in the prisoner’s behalf, but on the contrary, it is its duty to him, as well as the community, that the conviction should be affirmed.

Beady and INGALES, JJ., concurred.

Conviction affirmed.


author: Ingalls, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES C. EGAN, Respondent, v. THE JUSTICES OF THE MARINE COURT OF THE CITY OF NEW YORK, Appellants.

      Marine Court of the city of New York — cannot revive an action and, continue it against an executor — /Section 816 of the Code of Civil Procedure.

    ■When during’ the pendency of an action in the Marine Court of the city of New York, the defendant dies, that court cannot direct the action to he revived and continued against his executors, as section 316 of the Code of Civil Procedure expressly provides that it shall not have jurisdiction of an action against an executor or administrator, in his representative capacity.
    Appeal from an order of the Special Term, directing a writ of prohibition to be continued.
    In November, 1874, an action was commenced in the Marine Court of the city of New York, against Mrs. S. A. C. Hasard.
    The case was twice tried. After the argument of the last appeal, but before the decision ordering a third trial was announced, Mrs. Hasard died. Subsequently an order was made substituting Charles C. Egau her executor, as defendant.
    A writ of prohibition was then procured, restraining further proceedings in the Marine Court, on the ground that it had no jurisdiction of an action against an executor.

      Eli Long, James Clark and Edward Jacobs, for the appellants.

      John Berry, for the respondent.
   Ingalls, J.:

Pending the action the defendant, Mrs. S. A. C. Hasard, died, and a motion was made in the Marine Court to revive and continue the action in the name of the said Charles C. Egan, as her executor, which was granted. An application was made to the Special Term of the Supreme Court for a writ of prohibition, to prevent the Marine Court from proceeding in the action against 'the said Charles C. Egan, as such executor, upon the ground that such court does not possess jurisdiction of an action against an executor or administrator. The court directed, that an alternative writ issue, and pronounced the following opinion :

“ Donohue, J. If the Marine Court is not competent to take jurisdiction against an executor by original process, I see no reason that should give them that jurisdiction by death. The case now stands untried, and no rights lost by holding the court to the words of the statute. Motion granted.

“ Alternative prohibition to issue.”

Upon the return day mentioned in the order, the motion was heard at Special Term, to continue the order, by making the same absolute, and the motion was granted, and the following opinion was delivered :

“ Lawrence, J. In this case, after a full examination of the statutes and the various sections of the Code cited by the respective counsel, I deem it sufficient to say, that as the 316th section of the Code of Civil Procedui-e expressly provides that the Marine Court shall not have jurisdiction of an action against an executor or administrator in his representative capacity, and as such a positive provision should not be deemed repealed by implication, or because of apparent inconsistencies between that provision and other sections of the Code, the writ of prohibition heretofore issued should be made absolute, with costs.”

We are satisfied that the orders of the Special Term were properly granted. The Marino Court possesses only such jurisdiction as is conferred by statute. (Anderson v. Reilly, 66 N. Y., 189; Landers v. The S. I. R. R. Co., 53 id., 451; Hoag v. Lamont, 60 id., 98.)

The Code of Civil Procedure, in prescribing the jurisdiction of the Marine Court, provides, in section 316, as follows : “ The court has not jurisdiction of an action against an executor or administrator in his representative capacity.” This is a positive declaration by the Legislature, restricting the jurisdiction of such court, and is so clear and unequivocal as to exclude any implication by which the jurisdiction of such court can be extended over that class of actions. We are to presume that the Legislature intended that which the language employed, in framing the statute, fairly imports. The seeming hardship of a particular case will not justify an enlargement of jurisdiction, by a construction which is plainly contrary to the letter and spirit of the statute which confers the jurisdiction. When the action was revived by the substitution of the executor as defendant, it became, to all intents and purposes, an action against Egan in Ms capacity as executor, as much so as if it had been commenced against him in the first instance in that capacity. It seems to us that no amount of ingenious theorizing can have the effect to repeal the statute referred to. The provisions of the Code, to the effect that no action shall abate by the death of a party when the cause of action survives, cannot be reasonably construed to have the effect to confer a jurisdiction which is expressly denied by statute. To give to such provision of the Code, the effect contended for by the appellant’s counsel, would be substantially to hold that, by the death of a party, and the revival of the action in the name of the executor, the court would acquire a jurisdiction which is expressly prohibited by such statute. The obvious intention in framing the provision of the Code referred to, in regard to the continuance of actions, was to' provide that an action should not abate by the death of a party, when the cause of action survived, provided the court in which the action was commenced had jurisdiction to continue the same. Such construction harmonizes the statutes and prevents confusion. When a party voluntarily institutes an action in a court of limited jurisdiction, he should not complain if the road which ho has chosen terminates before he reaches the end of his journey. We are satisfied that the decision of the Special Term was correct, and should be affirmed, without costs of this appeal, as the question is new.

1 concur, but with much hesitation. Beady, J.

Present — Davis, P. J., Brady and Ingalls, JJ.

Order affirmed, without costs.


author: Daniels, J.:

text:
    HENRY G. HARRISON, Respondent, v. MARY V. AYERS as Administratrix of ELEAZER AYERS, Deceased, Appellant.

      Recovery for services, not limited to the amount of a hill previously rendered— when the refusal of an executor to pay a claim is not unreasonable.

    The fact that an architect has presented a bill for a certain sum, as his charge for preparing plans and specifications for a building, does not prevent him from recovering, in an action subsequently brought, the actual value of such services, although it may exceed the amount specified in the bill previously rendered.
    ■When an architect has presented a bill for services in preparing plans and specifications, and subsequently, it not having been paid, he presents a claim against the estate of his employer for the same services, largely exceeding the amount of such bill, a refusal of the executor to pay the same is not unreasonable, and the estate should not be charged with the costs of an unsuccessful defence before a referee appointed under the statute.
    What evidence as to the value of services rendered as arbitrator is insufficient to justify a recovery.
    Appeal from a-judgment in favor of the plaintiff, entered upon the report of a referee upon a claim disputed and referred under the statute relating to claims against deceased persons, and from an order overruling exceptions to the report and allowing costs to the plaintiff.

      J. A. Shoudy, for the appellant.

      C. Bainhridge Smith, for the respondent.
   Daniels, J.:

Tbe plaintiff presented an account to tbe defendant for services performed for tbe intestate during bis lifetime. These services consisted in part of making plans and specifications for a block of buildings wbicb tbe intestate was about to, and did afterwards erect. Tbe performance of tbe services, by drawing tbe plans and making the specifications, and their delivery to and receipt by tbe intestate, were proved by tbe witness Irving Harrison sufficiently so, certainly, to justify tbe referee in finding those facts to be established in tbe case. As this evidence was not controverted by any substantial proof given on the part of tbe defendant, tbe conclusion arrived at by tbe referroe was so far legally warranted.

Witnesses were examined for the purpose of showing tbe customary charges for services of that description. One of whom stated it to bo two and one-half per cent upon tbe cost of tbe structures. The other put tbe value oí tbe services at one and one-half per cent. This, like tbe other testimony, was not controverted by any controlling evidence, and accordingly tbe referee was justified in acting upon it, as presenting a proper measure of value for tbe purpose of compensating tbe plaintiff’s services. In bis conclusion be adopted the smaller percentage, and allowed tbe plaintiff to recover for those services tbe sum of $484.50, being one and one-half per cent upon tbe cost of tbe buildings. To that extent bis conclusion was fairly sustained by tbe evidence in tbe case.

It has been further claimed in support of tbe appeal that inasmuch as the plaintiff presented to tbe intestate an account for bis services, in wbicb be charged a gross sum of only $300, that this was conclusive against him on tbe trial of this cause. But that such is not tbe law is apparent from tbe decisions made in tbe cases of Williams v. Glenny (16 N. Y., 389), and Stenton v. Jerome (54 id., 480). Tbe former case is directly applicable to this contest, for tbe account there rendered was of a similar nature, but, notwithstanding that fact, tbe court held that tbe right to compensation was still open to be controlled by evidence concerning tbe actual value of the' services. As to this part of tbe case there was, therefore, no error in tbe determination of tbe referee.

Another item claimed was for services performed by tbe plaintiff for the intestate as an arbitrator in the settlement of a dispute existing between him and another person. The services were not of an extended nature, and but one witness was sworn upon the subject of their value. In his examination he stated that he could not say what they were worth, but he would say what he thought they were worth, and then added, “ I think they were worth $100.” Before that he had been interrogated upon the same subject, and asked whether he knew the reasonable value of the plaintiff’s services as arbitrator in that matter. This witness, who was the other arbitrator, in answer to the question, said that he could not tell. These answers were all the evidence given on this subject, and they were not sufficient to entitle the plaintiff to recover this sum of $100, for, taken together, they did not to any reasonable degree of certainty establish the fact that the value was the sum of $100. The referee, however, upon this evidence, allowed the plaintiff this sum of money, and in that he was not warranted by the testimony which had been given.

Upon the hearing of the motion to confirm the referee’s report, and for judgment at the Special Term, costs were allowed to the plaintiff in the action, and from that allowance an appeal has also been taken. ■ When the claim was presented to the defendant she consented to refer under the statute, so that no right to costs arose from a failure to comply with the provisions of the law upon that subject. And the only remaining ground upon which costs could be allowed was that the payment of the claims had been unreasonably resisted. (Buckhout v. Hunt, 16 How., 407.) But, in view of the fact that the plaintiff himself, after all his services were performed, rendered an account to the intestate, charging, by way of compensation, the sum of $300 only, she had good reason for resisting the payment of any larger sum. Fairly and reasonably she could well infer from this account rendered, that no greater sum than that mentioned in it was due to the plaintiff for his services, and when an account was presented to her for more than double the amount which had been previously stated, it became her duty to the estate to contest it, for the purpose of requiring the right to recover the excess to be established by legal evidence. For that reason, under the provisions of the statute as they have been construed, she did not unrea* sonably resist the payment of tbe plaintiff’s claim, and could not properly be charged with the costs of the proceeding because of such resistance.

It has been objected that interest should not have been allowed Upon the amounts awarded by the referee. But as to that there seems to be no sound legal objection to the conclusion at which he arrived. The judgment, however, is erroneous as to the allowance of the $100 for the plaintiff’s services as arbitrator, and for the costs awarded in the action beyond those specifically provided for in references of this nature by the Code of Procedure. (See § 317.) And the judgment must accordingly be reversed and a new trial ordered, with costs to abide the event, unless the plaintiff, within twenty days after notice of this decision, stipulate to deduct $100, and interest recovered upon it, and the costs allowed to be inserted in the judgment by virtue of the order appealed from. In case of such stipulation, then the judgment will be. affirmed for the residue, without costs of this appeal to either party.

Beady and INGAlls, JJ., concurred.

Ordered accordingly.


text:
    JOSEPH F. DARLING, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent.
    City— liability of, to one slipping on ice on a sidewalk — negligence—when a question for the jury.

    This action was brought to recover damages for an injury sustained by the plaintiff, by reason of his slipping upon some ice, while passing along a sidewalk in the city of New York, at about seven o’clock in the evening. The ice was formed by the freezing of water running from a conductor which emptied its contents close to a house the water running thence across the sidewalk to the gutter, and it had been accustomed to form in this way, from time to time, for several years. The night was dark and the ice was covered by a light fall of snow. The plan-tiff had seen the ice there before, but there was no evidence showing that his attention was called to it at the time of slipping and he was not then thinking ' about it.

      Held, that the question of the defendant’s negligence and of the plaintiff’s contributory negligence should have been submitted to the jury, and that it was error to direct a nonsuit.
    Appeal from a judgment in favor of the defendant, entered upon a dismissal of tbe complaint at tbe circuit.

      Ilenry D. Davies, for tbe appellant.

      Charles Miller, for tbe respondents.
   Brady, P. J.:

This action was brought to recover damages for tbe injury sun. tained by tbe plaintiff, by falling on tbe ice near 4 Neilson place, in this city. It appears that tbe plaintiff, after bis dinner, and about seven o’clock, went from bis bouse to purchase an evening paper, and in passing along tbe street slipped on some ice and fell, the fall causing tbe injury complained of. It appears that tbe ice was formed by tbe freezing of water that ran from tbe roof of an adjoining bouse through a leader or conductor, emptying its contents on tbe inner edge of tbe sidewalk and flowing thence across tbe sidewalk to the gutter.

In very cold weather tbe water froze, leaving a bed of ice on tbe sidewalk five or six inches thick at the inner edge, and flattening out to a thin surface as it extended to the outer edge. On the night in question it was dark, and the ice was covered with a light fall of snow and sleet, which had fallen during the day. The street had been in this condition from time to time in bad weather for several years. The plaintiff had seen the ice there before and considered it a dangerous place, but there is no evidence showing that his attention was called to it just before slipping upon it, and it may be-questionable whether he saw it within two or three hours previous to the time at which the accident occurred. It is quite clear that at the time he stopped upon the ice, he was not thinking about it, and his attention was not occupied in that regard. The condition of the street was such as to justify the presumption of notice to. the city authorities, whose duty it is to keep the public streets in. such condition that they may be safely traversed by day and by night, or perhaps this was one of the questions which the defendants had the right to ask the jury to pass upon, as a preliminary \o the success of the plaintiff, if his case were made out in all ithcr respects.

Although the rule to be deduced from an examination of the ruthorities, bearing upon the question of negligence in this and, findred cases, would seem to impose upon the plaintiff the obligation of showing that he was free from negligence, and that all the physical and intellectual power which God and nature had given him should be continuously exercised to secure his rights, yet there are constant distinctions and many refinements of the rules which govern this particular subject, designed to afford to injured persons a remedy for the wrongs done them. The plaintiff and his rights are not so controlled by the authorities, that he could be properly restrained from presenting his case to the consideration of the jury. That he should have gone out of his house and crossed this particular locality for the purpose of purchasing a newspaper, a design lawful in itself, did not deprive him of the right to demand from the city authorities compensation for injuries, which, if they had done, their duty, could by no possibility have occurred.

It was said in the case of Evans v. City of Utica (69 N. Y., 166), a case somewhat similar to this. “ assuming: that he was notified.. the inference by no means follows that the plaintiff was negligent.” And further, “ nor is there any ground for claiming that the danger of passing over the ice was so apparent that the plaintiff had no right to proceed after he discovered the condition of the walk.”

And in the case of Griscoll v. The Mayor (11 Hun, 102), it was said : “ That the plaintiff knew of the existence of the hole in which she stepped is reasonably free from doubt; and if she had, at the time, her mind upon it, the accident would probably have been avoided; but it is probable, from the evidence, that her attention was engrossed by the business .she had left her residence to transact, and without, at the time, thinking of this hole, accidentally stepped into it, and from the fall produced by doing so received the injury of which she died.”

It is further said : “ Her instinctive inclination to protect herself against the risk of injury would have induced her to have avoided this place if she had noticed it, as she was approaching its vicinity ; for that reason it may be assumed that her mind was otherwise employed, and upon that circumstance the charge of negligence must be predicated, if it can be sustained at all. It was the duty of the defendant to keep the walks in such a condition that they could be safely used by persons reasonably engrossed in their own pursuits. Even the most prudent will sometimes' be incapable, by the pressure of their cares, from avoiding that condition. Indeed, it is quite common to find careful people in just that state of mind. It naturally results from the subjects employing their attention, and their confidence in their ability at the same time to secure their safety, and cannot be held to bo unequivocal evidence of the want of care.” (See, also, Todd v. The City of Troy, 61 N. Y., 506.)

The plaintiff, on his cross-examination, was asked whether he noticed the ice at the time of the accident. His answer was that he did not; that he hadn’t it in his mind.. He was asked if he noticed its condition at that time. He said there was always ice there ; he thought he noticed, there was ice there at that time.

The cases to which reference has been'made, we think, are sufficiently distinctive to be applicable to this case, and to require that a new trial should be had, in order that the question of the plaintiff’s negligence may be submitted to the jury on such evidence as may be furnished.

Whether, even if the plaintiff knew of the existence of the ice, he was not justified in pursuing his way, in attempting to cross it, exercising ordinary care and prudence, would necessarily enter into the consideration of the question of negligence, keeping in view, as should be done, the obligation of the city to see to it that the walk is in such condition that it may be safely traversed by day and night.

If the plaintiff would not be justified in stepping upon it, in the expectation that it might be safely crossed in that way, it would be necessary for him to leave the sidewalk and go into the street and walk around the obstruction or impediment, a duty which is not yet imposed upon a citizen, that I am aware of, by any reported cases, although the general doctrines in reference to negligence seem to impose upon the wayfarer a predominance of duty and of care.

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

INGALLS and Daniels, JJ., concurred.

Judgment reversed; new trial granted, with costs to abide event.


author: Daniels, J.

text:
    JULIUS FREIBERG AND LEVY P. WORKUM, Respondents, v. ROSANNA BRANIGAN, Appellant.

      Mangled woman carrying on business— liable on notes given by her husband as her agent.

    ' Appeal from a judgment in favor of the plaintiffs, entei'ed on tne verdict of a jury, and from an order denying a motion for a now trial, made on the minutes of the justice before whom the action was tried.
    The action was brought to recover the amount due upon two promissory notes given by the defendant in April, 1877. It appeared, by the evidence, that the defendant was a married woman, and at the time when the notes were given, was carrying on business in Cherry street, in the city of New York, through the agency of her husband. The business was dealing in and selling liquor.
    Before the notes were given the defendant delivered to her husband a power of attorney, constituting and appointing him her agent, and authorizing him to sign notes in her behalf. The notes sued upon were signed by him in the form provided for in the power of attorney; but it was claimed that the defendant was not liable for their payment, by reason of the fact that she was a married woman. It was shown, in answer to this objection, that the notes wore given for liquors purchased by her husband in her name, for the business, and that the liquors were actually delivered at the store in which the business was carried on, although they were afterwards taken by her husband, without her authority, and delivered to his brother upon a debt owing by him.
    The court at General Term said : “So far as the plaintiffs were concerned, the transaction was complete when these liquors were delivered at the defendant’s store ; aud as they were bought by her agent in the course of her business for her, they constituted a good consideration for the notes in suit. Before that time the statute of this State had authorized a married woman to carry on any trade or business on her sole and separate account, and it had provided that no contract made by her, in the course of the transaction of that business, should be binding upon her husband ; and beyond that, that she might be sued the same as though she were an unmarried woman. (New York Statutes at Largo, vol. 4, p. 516, §§ 2 and 8; id., p. 517, § 7.) ' And this business, it has been held, she could manage and cany on through the intervention of the agency of her husband. (Knapp v. Smith, 27 N. Y., 277; Bodine v. Killeen, 53 id., 93.) And when a married woman carries on business in that manner, she becomes liable upon the obligations created in the course of it, the same as though she were a single female. (Corn Exchange Insurance Go. v. Babcock, 42 N. Y., 613, 642.) And they may be enforced against her by action in the same manner. (Ilier v. Staples, 51 N. Y., 136.) As the law Empowered her to carry on business on her own account, and to manage it through the agency and intervention of her husband, she took the risk upon herself of the ordinary dangers of that relation, where all that is required to render the principal hable to third persons in civil suits, even though the obligation may have resulted from the malfeasance or misfeasance of her husband, was that the act snould be performed in the course of his employment.” (Story on Agency [4th ed.], § 452.)

      John McGinn, for the appellant. Wm. Myncaonw-y, jr.. for jhe respondents.
   Opinion by

Daniels, J.

Bkady, P. J., and Ingalls, J., concurred.

Judgment affirmed.


text:
    GEORGE A. STARKWEATHER, Jr., Appellant, v. ISAAC H. BRONNER, Respondent.

      Allegations as to fraud in contracting a debt — when they cannot be stricken out as irrelevant.

    Appeal from an order striking out a portion of the plaintiff’s complaint.
    The complaint set forth a cause of action for goods sold, upon which the sum of $200 was claimed to be due at the time when the suit was commenced, and in addition to that seven promissory notes amounting to the sum of $658.95 which were not due at the time when the summons was served. For the purpose of recovering upon these demands, allegations were made in the complaint, showing that the debt had been fraudulently contracted, and the credit fraudulently induced, and it was these allegations which were stricken out by the order from which this appeal was taken.
    The court at General Term said: “la order to recover in the case, ou the demands by their terms not due, it will be essential upon the trial, that the plaintiff shall establish as a matter of fact, that he was induced to give the credit which was given in form upon those debts, in consequence of fraudulent representations made by the defendant. Without them it is clear that no right of action existed upon those notes at the time when the suit was commenced. Striking out these allegations, therefore, has placed the complaint in such a condition as to show that the plaintiff has no right whatever to recover upon those demands, and even though the credit may have been fraudulently induced, he will not be allowed to establish that fact by evidence upon the trial in the absence of these allegations in the complaint. The case, in this respect, differs from that of The National Bowery Bank v. JDuryea (55 How., 88), and since affirmed by the Court of Appeals, where the allegations of fraud were made simply for the purpose of enabling the plaintiff to hold the defendant to bail. Here no such object was desired to be attained by means of these allegations, but their purpose was to show that the defendant was not entitled to the credit, which hi form had been procured by him, in consequence of the fact that it wa3 induced by false and fraudulent representations. To entitle him to recover upon those demands upon the trial of the cause, evidence must be given showing that such fraud had been perpetrated. Without allegations setting forth this fact in the complaint, no such proof can 'be given upon the trial of the case. Consequently, the order striking out these allegations from the complaint was erroneously made.”

      J. J. Perry, for the appellant. F. 8. Hahn, for the respondent.
   Opinion by

Daniels, J.

Brady, P. J., and Ingalls, J., concurred.

Order reversed and an order entered denying the motion, with ten dollars costs and disbursements.


author: Brady, P. J.

text:
    JAMES EAGAN, Appellant, v. JOHN J. TUCKER, Respondent.

      Contractor — liability of, to workmen injured by the negligence of his foreman

    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit.
    Tho action was brought to recover damages for injuries alleged to have been occasioned by the negligence of the defendant, who was a builder, engaged in making alterations in the New York Orphan Asylum.
    The work was done under the direction of one John Davis, tho defendant’s general foreman, who had full charge and supervision \ of the work, employed the plaintiff, made out the pay-rolls, ano engaged and discharged the men. On the 13th day of October, 1873, when the plaintiff" was injured, Davis directed him and the other laborers to dig under a pier, the upper part of which was supported at some distance from the ground by a wooden beam or needle passed through it horizontally and resting at each side upon upright beams. The earth under the pier was then excavated so that the foundations might be sunk deeper. This left the portion of the pier below the needle without support from beneath, and dependent for support upon its own tenacity. While the plaintiff and the three others were engaged under Davis’ direction, this lower portion fell, killing one of the laborers and maiming the plaintiff for life.
    The plaintiff was opposite and in front of the pier. They had' dug about three feet under it, when it fell toward him. lie was stooping at the time and using a pick-axe. Nothing was said to him about the work being dangerous, and he did not appear to have known it to be so, and stated that he would not have remained if he had thought it was. It was also established on the trial that this mode of removing the pier was improper, careless and dangerous. When the plaintiff had proved these facts, with such others as had been established by the medical testimony, the defendant’s counsel moved to dismiss the complaint on the ground that no negligence had been proved against the defendant, and also that the plaintiff contributed to the injury and accepted the risk of the dangerous employment. The motion was granted and the plaintiff duly excepted.
    The court at General Term said : “ It is quite evident from the-testimony in this ease, that Davis had full charge of the work and was the alter ego of the defendant. The plaintiff obeyed his orders, and while he was engaged, stooping, and unable to see what was passing above or on the other side of him,, was injured-by the pier falling upon his back. The question of contributory negligence, under the facts and circumstances disclosed, was one for the jury and not for the court.
    e<The negligence of the defendant had been established prima facie by the evidence to which reference has been made, and by which it was declared to bo an improper, careless and dangerous way of doing the work which was undertaken. The defendant having employed Davis, the superintendent of the work, to act as his foreman, was liable for any negligence on his part resulting to the injury of the plaintiff. He was not a mere fellow servant, but occupied the place of a master, and was the alter ego of the defendant, as already suggested. He could not, by delegating bis power, relieve himself from responsibility.

      “ It was the duty of the defendant to place over the plaintiff a competent person to construct the work, having the necessary skill and capacity to direct and guide the persons employed to carry out the details.
    “ The careless, unskillful and dangerous way in which Davis directed the work to be performed bears upon the question of his competence and capacity, and this, if it were not conclusive, was certainly some evidence on the subject whether the defendant had selected a proper person to superintend the work to be done. The existence of these various elements in the case rendered it the duty of the justice presiding at the circuit to submit the question to the jury for their consideration and determination. It was a case in which it did not appear as a question of law that the plaintiff was guilty of contributory negligence, or that the plaintiff, under the circumstances, did assume the risks understandingly and was therefore without remedy.
    “We think that the dismissal of the complaint was error, and that the judgment should be reversed. The following cases sustain the propriety of this judgment: Hqfnagle v. JST. Y. Oen. and H. B. B. B. (5 N. Y., 608); Corcoran v. IIoTbrooh (59 id., 517); Morrison v. AT. Y. Q. and II. B. B. B. Co. (63 id., 643).”

      Matthew Daly, for the appellant. Flanagan & Bright, for thtf respondent.
   Opinion by

Brady, P. J.

Dahiels, J., concurred.

Present — Brady, P. J., and DaNIels, J.

Judgment reversed, new trial ordered, costs to abide event.


author: Barnard, P. J.:

text:
    CATHARINE M. WOOD, Respondent, v. GEORGE C. WOOD, Appellant, Impleaded with MORTIMER V. VELSOR.

      Right of a wife to maintain ejectment against Tier husband — the action is not barred by the fact of the husband having niade improvements on the land.

    In 1844 certain land was conveyed to the plaintiff as and for her own separate estate, free from the control of her husband, the defendant George 0. Wood, who indorsed upon the deed a covenant with the grantor that his wife should hold the same to her own separate and sole use, free from any claim or interference from him.
    In an action of ejectment by her against her husband and his tenant, held That the acts of 1848 and 1849 vested the legal title to the land in her, and that • she was entitled to maintain the action.
    That the fact that her husband had expended large sums of money in improving the property was no defence to the action.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was one in ejectment, to recover possession of certain property belonging to the plaintiff, from her husband and from the tenants in possession under him. 7

      J. J. Perry, for the appellant.

      Thomas Young, for the respondent.
   Barnard, P. J.:

The plaintiff is a married woman, and the defendant George C. Wood is her husband. In 1844 Brewster H. Wood and wife conveyed to the plaintiff a life estate in the premises in question, “ as and for her own separate estate, free from the control of her husband. the said George C. Wood.” By the same deed the fee was granted after the termination of the life estate to the children of George C. Wood and Catharine M. Wood, his wife. Indorsed upon the deed is a covenant by the defendant George C. Wood to the grantor Brewster H. Wood, “ that my wife, the said Catharine M. Wood, shall hold the within granted and described property to her own separate and sole use, free from any claim or interference from me.”

The effect of this conveyance, before the acts of 1848 and 1849, was to , create in equity an estate in the wife, as if she were a feme sole. The effect of those acts was to convert the equitable into a legal title. The plaintiff, after living many years with her husband, was finally compelled to leave him on account of ill-treatment. She brings this action of ejectment against her husband and her husband’s tenant. They set up title and right to possession in defendant Wood, as husband of plaintiff, and because he, the husband, has expended large sums of money in improving the property. I think that the defences are not good. If the wife has now a legal title, as if unmarried, it is of very little value, unless it can be enforced as well against her husband as a stranger. Her right to do this seems to be sustained by authority. (Power v. Lester, 23 N. Y., 527; Dygert v. Remerschnider, 32 id., 629; Whitney v. Whitney, 49 Barb., 319; Wright v. Wright, 54 N. Y., 437.) The expenditure of moneys upon the place gave no right or interest in the premises. (Minier v. Minier, 4 Lans. Sup. Ct. Rep., 421.) No demand of possession or notice to quit is needed, when the issue is one of title only.

The judgment should be affirmed, with costs.

DyhaiaN, J., concurred.

Present — BaeNakd, P. J., Gilbeet and Dtkman, JJ.

Judgment affirmed, with costs.


text:
    RICHARD DONNELLY, Appellant, v. THE TOWN OF OSSINING, Respondent.

      Town, — cannot contract for the building of a bridge t7iei-ein.

    In the absence of express legislative enactment a town has no power to enter into a contract for the building of a bridge therein.
    Appeal from an order sustaining a demurrer, interposed to the complaint on tbo ground that it did not state facts sufficient to constitute a cause of action.
    The complaint alleged the making of a contract between the plaintiff and the town of Ossining for the building of a bridge in the village of Sing Sing, situated in the said town, that the plaintiff had performed on his part, until prevented by the defendant, and sought to recover the amount due to him thereunder.

      Marshall P. Stafford, for the appellant.

      Francis Larkin, for the respondent.
   Barnard, P. J.:

The town of Ossining was under no obligation to build the bridge in question in the absence of legislative enactment. Neither the common law of the highway acts impose this duty upon a town. (Barker v. Loomis, 6 Hill, 463; Morey v. The Town of Newfane, 8 Barb., 645.) A contract to build abridge was not, therefore, a contract “ necessary to the exercise of its corporate or administrative powers.” (1 R. S., 337, § 1, sub. 3.) A town has no power beyond those given by the Revised Statutes, or by law, or necessary to the exercise of the power given by law. (1 R. S., 337, § 2.)

While, therefore, the complaint is faultless in form and avers a, contract made between the plaintiff and the town “ by their undersigned committee duly authorized,” the averment must be construed with reference to the laws governing the contracts of towns. No suggestion is made in the complaint that the contract was exe-cutecl under power given by an act of the Legislature. Without such an act, the contract mentioned in the complaint could not bind the town.

Judgment affirmed, with costs.

Present — BarNard, P. J., and Gilbert, J.; Dykmast, J., not sitting.

Order sustaining demurrer affirmed, with costs.


text:
    ELIZA JANE PARKINSON, Special Guardian, Etc., v. GEORGE H. JACOBSON and others.

      Claims against a deceased,‘person — when an application to sell land, to pay them, must be made — chap. 211 of 1873.
    In 1866 one Rinchy, an inhabitant of the city of New York, died in Mexico, leaving a widow and an infant son. In 1868 the interest of the infant in certain land inherited from his father was sold, under the direction of the conrt, and a mortgage for a portion of the purchase-money was given to the special guardian of the infant, upon the foreclosure of which in this action, in 1878, the premises were purchased by one Doughty. The latter refused to complete his purchase, on the ground that a claim still existed unpaid against the estate of the said Rinchy, and that no letters of administration had even been issued thereon.

      Held, that he was properly compelled to complete his purchase, as the time mentioned in chapter 211 of 1873, within which an application for the sale of land for the payment of debts must be made, had elapsed, and by reason of the restrictions contained in said act, the land could not be sold to pay the claim.
    Appeal from an order made at Special Term requiring the appellant, John Doughty, to complete his purchase of certain premises sold under a decree of foreclosure entered in this action.
    The action was brought in 1878 to foreclose a mortgage of $2,900 executed in 1868 by one Jacobson and wife, to the special guardian of one George W. W. Rinchy, an infant, upon the sale to said Jacobson of certain real estate belonging to the said infant;

      W. T. B. MilliJcen, for the plaintiff, respondent.

      Wenberg & Reilly, for John Doughty purchaser, appellant.
   Barnard, P. J.:

Tbe papers upon this appeal show that George Rinchy owned íúe premises in question in 1866. That he died at Matamoras, Mexico, on the 20th July, 1866, leaving a widow and an infant son. In May, 1868, application was made to this court for leave to sell the land of the infant. Leave was granted, and the premises were sold to G. H. M. Jacobson and wife for $4,500. The mortgage under which this sale was made was taken back by the special guardian of the infant, as part of the purchase-money of the sale so authorized by the Supreme Court. The purchaser at the mortgage sale objects to the title, which objection is based upon an affidavit of one E. J. Dundas, that he held a claim against the deceased George Rinchy, and that no letters testamentary or of administration have ever been issued upon the estate. I do not think this objection sufficient to justify relieving the purchaser from his bid.

George Rinchy was an inhabitant of the city of New York at the time of his death. The surrogate of New York has therefore . jurisdiction to issue letters testamentary or of administration.

By chapter 211 of Laws of 1873, it is provided that no real estate of a deceased person, the title to which shall have passed out of any heir or devisee by conveyance or otherwise to a purchaser in good faith, and for value, shall be sold to pay debts, unless letters testamentary or of administration shall have been applied for within four years after his death, nor unless application for such sale shall be made to the surrogate within three years after the granting of such letters. Jacobson was a purchaser in good faith and for value, and no letters testamentary or of administration have ever been issued.

The order should be affirmed, with costs and disbursements.

DyrmaN, J., concurred.

Present — BarNard, P. J., Gilbert and DyrmaN, JJ.

Order affirmed, with costs and disbursements.


author: Barnard, P. J. :

text:
    GEORGE W. SNEDEKER, Plaintiff, v. SEAMAN N. SNEDEKER AND JENNIE E. SNEDEKER his wife, JOHN H. CLAYTON, COLES CARMAN and others, Defendants.

      A sale under execution passes only the interest of the debtor at the time when the judgment is docketed, —• Application far surplus moneys — a conveyance cannot be attacked as fraudulent on.

    In November, 1874, one Snedeker conveyed certain premises to one Campbell, tke deed being-recorded June 9, 1875. June 8,1875, Campbell reconveyed the premises to Snedeker’s wife, the deed being recorded in August, 1875. In July, 1875, judgments were recovered against Snedeker, and the premises sold upon executions issued thereon to one Carman, to whom, on the expiration of fifteen months, a deed was delivered by the sheriff. The premises having been sold on the foreclosure of a mortgage executed prior to November-, 1874, Carman claimed to be entitled to the surplus moneys.

      Held, that as Snedeker had no title to the premises when the judgments were docketed Carman acquired none on the sheriff’s sale, and had, therefore, no interest in the surplus moneys.
    That even if the conveyance to Campbell was fraudulent Carman was not in a position to attack it in proceedings for the distribution of such surplus.
    Appeal from an order confirming the report of a referee, appointed on an application for the distribution of surplus moneys. The premises in question were sold on the foreclosure of a mortgage executed prior to November, 1874.
    On the third of that month one Seaman N. Snedeker, who then owned them, conveyed them to James H. Campbell by a deed, which was recorded on June 9, 1875. On June 8, 1875, James II. Campbell conveyed the premises to Jennie, the wife of Seaman N. Snedeker, by a deed which was recorded in August, 1875. In July, 1875, judgments were recorded and docketed against Snedeker, upon which executions were issued, and the premises were sold to one Carman, who received the sheriff’s deed at the expiration of fifteen months, no redemption having been made.
    Carman claimed to be entitled to the surplus moneys, on the ground that the conveyances referred to were fraudulent, and that the title to the premises remained in Snedeker at the time of the docketing of the judgments. The surplus was also claimed by one Clayton, to whom a mortgage had been given by Jennie Snedeker.

      John II. Clayton, for the defendant Clayton, appellant.
    The referee had no power to inquire into the validity or invalidity of the deeds from Snedeker to Campbell, and from Campbell to Mrs. Snedeker, and the mortgage from Mrs. Snedeker and her husband to Clayton. (Rule 77, Supreme Court; King v.West, 10 How., 333; Ilusted v. Dakin, 17 Abb., 141; The Union Dime Savings Institution v. Olsey, 4 Hun, 657; Bradleyv. Aldrich, 40 N. Y., 509.) Coles Carman is not and never was a creditor of Seaman N. Snedeker. He was not the creditor in the execution but simply a purchaser at these judgment sales, and the proceeds of his bid paid these creditors their claims in full and wiped out their debts. (Weaver v. Togood, 1 Barb., 238; Kleinholz v. Phelps, 6 Hun, 568; Russell \. Allen, 10 Paige, 254; Forsyth v. OlarJc, 3 Wend., 637; Hill v. Bixby, 63 Barb., 200.) Clayton, therefore, at the time ho received his mortgage, was a purchaser under the recording act' for value, without notice, from one in possession, and against whom and her grantors at the times of their respective conveyances there were no liens. (2 R. S. [3d cd.], § 1, p. 1137; Hetzal v. Barber, 69 N. Y., 1; 3 Abb. Dig. [new ed.], par. 132; Hope Fire Ins. v. Oambrelling, 1 Ilun, 493; Bario v. Tomphins Nat. Bank, 15 id., 11; Reynolds v. Darling, 42 Barb., 418.) The only remedy of a purchaser under a sheriff’s deed, to get possession or perfect his title to the premises, is an action of ejectment. (Rogers v. Sinsheimer, 50 N. Y., 649; Frickson v. Quinn, 15 Abb. [N. S.], 168; Wheeloek v. Lee, 5 Abb. [N. C.], 85; Bradley v. Aldrich, 40 N. Y., 510; Davidson v. Associates, 71 id., 340; Fasnacht v. Stehn, 5 Abb. [N. S.], 344; 3 Wait’s Pr., 11 and 12.)

      A. N. Weller, for the defendant Coles Carman, respondent.
    If the original conveyance to Campbell was made in fraud of creditors, neither Mrs. Snedeker nor Mr. Clayton, as her mortgagee, acquired any right or interest in the property, for even if they were innocent purchasers they could get no other or greater title than their grantor had. (Bush v. Laihrop, 22 N. Y., 535; Davis v. Austin, 1 Yes., 24; Mason v. Lord', 40 N. Y., 487; Reeves v. Kenball, 40 id., 311; Bordan v. Bedgwiclc, 44 id., 626.) The question of the fraudulent character of these several conveyances can be 'tested in proceedings to obtain surplus moneys. (Mutual Insurance Oo. v. Bowen, 47 Barb., 618; Olarlcson v. Blcidmore, 46 N. Y., 297; 3 R. S., § 103, p. 199; old reference, 2 R. S., § 169, p. 192; Shepard v. O'Neil, 4 Barb., 125; Snyder v. Stafford, 11 Paige, 77; Schafer et al. v. Reilly, 50 N. Y., 61.)
   Barnard, P. J. :

I think Coles Carman got no title under the sheriff’s deed of the premises in question. Before the lien of the judgment attached, under which the sale was made, the judgment debtor had conveyed the premises to Campbell. All the sheriff could sell was the right, title and interest which Snedeker, the judgment debtor, had at the docketing of the judgment. (2 R. S., 374.) As the debtor was seized of no estate on that day the sheriff could convey none. (Lamont v. Cheshire, 65 N. Y., 30.) It is no answer to say that the deed was fraudulent. A creditor at large cannot attack such a transfer. Carman is not a creditor. The plaintiff in the judgment could not assail the conveyance until after return of their execution unsatisfied. (Forbes v. Waller, 25 N. Y., 430; Crippen, v. Hudson, 3 Kernan, 161.)

The order confirming referee’s report should be reversed, with costs and disbursements, and the case sent to a referee to report order of liens on surplus.

DyicmaN, J., concurred; Gilbert, J., not sitting.

Order reversed, with costs and disbursements, and case referred to referee to report priority of liens.


text:
    ADDISON B. HALL AND GEORGE W. CAMPBELL, Executors, etc., of GEORGE C. HALL, Deceased, Appellants, v. ANNIE HALL, MARGARET J. HALL, FRANCIS H. HALL AND MARY HALL, Respondents.

      Commissions — an executor acting as trustee not entitled to commissions in each capacity.

    A testator, after making certain bequests, conveyed all the residue of his property to his executors to he invested and held by them as trustees for his wife and children, with directions to them to pay over certain portions of the income to his wife for life, and to each child during minority, and on the death of the wife and the majority of each child to pay over the fund in accordance with other provisions of his will. Upon an accounting by the executors they were allowed full' commissions for receiving and paying over the estate.

      Held, that they were not entitled to again receive commissions as trustees, upon receiving and paying over each share.
    Appeal from a decree of the surrogate of Kings county, made upon the accounting of the appellants as executors and trustees under the will of George C. Hall, deceased.
    The testator, by the eighth clause of his will, devised and bequeathed all the rest, residue and remainder of his estate “ unto my executors hereinafter nominated and appointed,” in trust, ti convert the same into money, divide his estate into as many parts ás he should leave children, with one additional part for his wife, if living, invest each share and apply the income and profit thereof to the support of his wife, during her life, and to the support of each child during its minority, and to pay over each share upon the death or majority of its beneficiary as therein provided.
    The executors, having received full commissions as executors, claimed to be entitled to receive them again, as trustees, upon paying over to a child, who had attained its majority, its distrj butive share. From the disallowance of this claim by the surro gate, the executors appealed.

      J. Q. Smith, for the appellants.
    Addison B. Hall and Georgo W. Campbell, in the investment of the funds of the estate, and in the payment over of the share to the child attaining its majority, were acting as trustees and not as executors, and were entitled on tbis accounting to full commissions as trustees on the amount to be paid over to such child, and to one-half commissions on the amounts to be held for the widow, and for the other two children of the testator for receiving the same. (In the Matter of Edward Schell, 53 N. Y., 263; In re estate of Evince, 1 Tucker’s Rep., 119; Oram v. Oram, 2 Redfield [Sur. Rep.], 244; Matter of Pike, 2 Redfield’s Rep., 255; Laws of 1866, vol. 1, p. 233, § 1; Phelps v. Oebhard Fire Ins. Go., 9 Bosw., 404; Way staff v. Lowery, 3 Abb., 411; In the Matter of De Peysier, 4 Sandf. Ch. Rep., 511; Gairns v. Ghanbert, 9 Paige, 160; In the Matter of Kellogg, 7 id., 267.)

      J. T. Marean, for the respondents.
    The services of the appellants in the administration, care, management and distribution of the personal estate, have been done and are hereafter to be done as executors purely, and their services in respect to the real estate have been and are to be performed as donees of a personal trust or power in trust and not by virtue of their office. Having received full commissions as executors they cannot receive them again as trustees. (2 Rev. Stat., 72, § 22; Gonhlin v. Edgerton, 21 Wend., 430; affirmed, 25 id., 224; Dominick v. Michael, 4 Sandf., 374; BeeJsman v. Bonsor, 23 N. Y., 304; Poome v. Phillips, 27 id., 363; Matter of Anderson, 5 N. Y. Leg. Ob., 302; Bogert v. Hertell, 4 Hill* 492; Dunning v. Ocean National Bank, 6 Lans., 299; affirmed, 61 N. Y., 497; Bain v. Matteson, 54 id., 667; Oasoniy. Jerome, 58 id., 315; Bunn v. Vaughn, 3 Keyes, 345; Gilchrist v. Pea, 9 Paige, 72; DePeyster v. Olandenning, 8 id., 310; Smithy. Edmonds, 10 N. Y. Leg. Ob., 190; In re Place, 1 Redf., 286; McMahon v. Allen, 4 E. D. Smith, 554; Newton v. Bronson, 13 N. Y., 593; Bolton v. Brewster, 32 Barb., 394; Bolton v. Jacks, 6 Rob., 228.)
   Barnard, P. J.:

The testator, by the eighth clause of his will, directed his executors, after payment of debts and a few specified legacies, to invest Ids personal estate for the benefit of his widow and children separately. The income was to be paid to the widow for life and the income of the separate shares to be applied for the support and education of the children during minority, and to be paid each when they severally arrived at the age of twenty-one years. The executors have, upon an accounting, received the full commission for receiving and paying out the entire estate and claim now a full commission again for receiving and paying out each separate share as trustees. I think the trust and the executorship are inseparable. The terms of the will are broad enough to create a trust but it is only in the execution of the will. It is such a trust as any administrator, with the will annexed, would carry out if the present executor should die, and an administrator, with the will annexed, be appointed. Whatever trust there is, is annexed to the office of executor and not to the persons of the executors. There is no paying out under this will until it is paid to the heii’s.

The judgment should be affirmed, with costs.

Dykman, J., concurred.

Present — Barnard, P. J., Gilbert ana Dykman, JJ.

Decree of surrogate affirmed, with costs.


text:
    GEORGE S. WRIGHT, Respondent, v. ABBIE J. FLEMMING and others, Appellants.

      Appeal from an order overruling a demurrer — eosts on.

    On an appeal taken under subdivision 2 of section 349 of the Code, from an order overruling- a demurrer, the successful party is entitled to tax as costs, under . subdivision 5 of section 307 of the Code, twenty dollars before and forty dollars ' for argument.
    Appeal from an order made at Special Term, re-taxing and reducing the costs of the defendants Flemming and Wright.

      Alex. Thain, for the appellants.

      Foster <& Thompson, for the respondent.
   Barnard, P. J.:

The defendants Flemming and Wright demurred to the complaint of plaintiffs. The demurrer was overruled at Special Term. Upon appeal to the General Term the order overruling the demurrer was reversed with costs. There was no formal judgment entered upon the order overruling the demurrer, but the appeal was taken from the order under section 349 of the late Code. This was a trial of an issue of law. The appeal, which was permitted from the order, did not change its character. Instead of entering a judgment and appealing from that, the Code permitted an appeal from the preliminary order. Upon the appeal iii the General Term the prevailing party was, under subdivision 5 of section 307, entitled to twenty dollars before argument and to forty dollars for argument. The excepted cases, in which such costs were not to be allowed, were cases mentioned in subdivisions 1, 3, 4 and 5 of section 349.

The appeal in the present case was under subdivision 2 of that section, and is, therefore, one of the cases in which the twenty dollars before argument and forty dollars for argument was allowed.

The order should be reversed, with costs and disbursements, and an order granted that the clerk tax the rejected items.

Present — Barkard, P. J., and Gilbert, J.; DykmaN, J., not sitting.

Order reversed, with costs and disbursements, and order granted that clerk tax disputed items.


author: Gilbert, J.:

text:
    ROBERT M. IRELAND, Respondent, v. ROBERT IRELAND AND ANNA S. IRELAND, Appellants.

      Devise to an executor, for the benefit of himself and others — when he has no discretion in distributing the fund.

    A testator appointed his wife executrix and gave her the net income of his estate during her life, and upon her decease appointed his son Robert executor, and devised and bequeathed to him all the residue of his estate, to receive the rents, issues and profits thereof, and to apply “one-half of said net income to the use and for the maintenance and support of my son Robert Ireland (the executor), his wife and children, during the life of my said son Robert.” Robert Irelarn) had but one child the plaintiff in this action.

      Held, that the executor had no discretion in distributing the income among thf beneficiaries, but that each was entitled to receive the one-third part thereof.
    Appeal from an interlocutory decision, directing an accounting by the defendant Robert Ireland, as executor of the will of William B. Ireland, deceased. The plaintiff is the only child of the said Robert Ireland, and the defendant Anna S. Ireland is his wife.
    The testator died in 1866, leaving a will which provided, among other things, as follows :
    “ Third. I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, of what hind or nature soever, or wheresoever situated, of which I may die seized or possessed, unto my said beloved wife, Anna Sophia, to have and to hold the same in trust, to receive the rents, profits, and revenue arising therefrom, * * * to apply the net income to her own use, for and during her natural life, leaving it entirely to her discretion to apply or not, my portion of said net income to the use of either of my children. ******
    “ Fourth. From'and after the decease of my said wife, I give, devise and bequeath the aforesaid rest, residue and remainder of my estate, mentioned in the beginning of the third clause of this my will unto my executor, hereinafter nominated, to have and to hold the same upon trust, to receive the rents, profits and revenue arising therefrom and after paying therewith all taxes, assessments, insurance, Croton water charges, expenses for repairs and all other necessary charges incidental to the proper care and management of my estate, to apply one-half of the net income to the use and for the maintenance and support of my son, William John Ireland, his wife and children, during the natural life of my said son William John, and to apply the remaining half of said net income to the use and for the maintenance and support of my son Robert Ireland, his wife and children, during the life of my said son Robert. *******
    “ Lastíy. I hereby nominate and appoint my said wife Anna Sophia Ireland, sole executrix, and from and after her decease, I nominate and appoint my said son Robert Ireland, sole executor of this my last will and testament.” * *
    The wife died in 1874, and the defendant Robert was appointed executor. The plaintiff and the defendant Anna S. Ireland claimed to be entitled to have the one-half of the net income divided equally between them and Robert, and the court below so decided.

      O. Frost, for the appellant Robert Ireland.
    The exercise of the power conferred by the fourth clause is discretionary with the executor — although the word “discretion” is not used —it is necessarily implied. ( Vaughn v. Marquis of. Medford, 10 Simons [Eng. Ch. R.], 641; Withers v. Yeadon, 1 Rich. Equity [Ct. of App., S. 01]; Qollins v. Oaslisle, 7 B. Munroe [Iiy.], 13; Harper v. Phelps, 21 'Conn., 257.) If, then, it shall be held that the application of the income was in the discretion of the executor, the court cannot interfere with the exercise of such discretion, unless it shall appear that the executor is acting mala fide. (Mason v. James et ah, 3 Edwards Ch. R., 497; Banner v. Storm, 1 Sand. Ch. R., 358; French v. Davidson et ah, 3 Maddock Ch., 396; Miller v. Miller et ah, 5 id., 424.)

      J. T. Williams, for the appellant Anna S. Ireland.

      F. O. Delavan, for the respondent.
    When an estate or an income is given to support and maintain parents and children they share equally in the fund. (Smith v. Bowen, 35 N. Y., 83; Jubber v. Jubber, 9 Simons, 503; Woods v. Woods, 1 M. & C., 401; Franklin v. Schermerhorn, 8 Hull, 112; Hilton v. Bender, 69 N. Y., p. 86.) Where a trust is created, and the trustee is one of the cestuis que trust, all the cestuis que trusts share equally, and any one may enforce the trust as against the trustee. (Bailees v. Ward, 1 Hare’s Clran., 445; Chase v. Chase, 2 Allen [Mass.], 101.) Where a trustee is one of the cestuis que trust, the court will construe the terms of the trust most strongly against the trustee. (.Matter of Moke, 2 Redfield’s Surrogate, 429; Perry on Trusts, § 59.)
   Gilbert, J.:

We see no reason to doubt the correctness of the judgment below.

By the third clause of his will the testator gave the entire net income of his estate to his widow during her life, leaving it entirely to her discretion to apply or not any portion of said net income to the use of either of their children.

By the sixth clause, the construction of which is in question, he directed his executor, after the decease of his widow, “to apply one-half of the net income to the use and for the maintenance and support of his son Robert Ireland (who qualified as executor), his wife and children during the life of his said son Robert.”

There is nothing in the language of this clause indicative of an attempt to vest the defendant Robert Ireland with discretion to diminish the shares of the income given to the beneficiaries respectively, or to vest said Robert with more than one-third of the share in question.

The direction to him was plain and imperative, to apply the fund for the support of himself, his wife, and his son, and his duty in making the distribution is simply ministerial.

Whenever an estate or fund is given, either by statute or devise, for the maintenance of parents and children, they are held to participate equally in it. (Smith v. Bowen, 35 N. Y., 83; Franklin v. Schermerhorn, 8 Hun, 112; Hilton v. Bender, 69 N. Y., 86.) And if it be given to one of the participants in trust for himself and the others, any one of the cestuis que trust may enforce the trust as against the trustee (Chase v. Chase, 2 Allen, 101), who can be held responsible for any misapplication of the fund. (Smith v. Bowen, supra.) A comparison of the clause in question with the third clause, in which the widest discretion is expressly, and for reasons set forth at length, vested in the widow while acting.as executrix, is strongly confirmatory of the views above expressed, and leads to the conclusion that the testator did not intend to confer the same discretion upon her successor.

The judgment and order of the Special Term must be affirmed, with costs.

Present — Barnard, P. J., and Gilbert, J.; Dyeman, J., not sitting.

Judgment affirmed, with costs.


author: . Gilbert, J.:

text:
    JEREMIAH MAHONEY, Appellant, v. JAMES M. DECKER, Respondent.

      Communication between judge and jury, in the absence of counsel — what is a waiver of the irregularity — When it is not ground for a new trial.

    This was an action brought by the plaintiff to recover the damages sustained by-him, by reason of his falling through an open hatchway on the defendant’s premises. After the jury had retired, and in the absence of counsel, the jury-sent to the judge a communication asking if plaintiff had been paid his salary while laid up, to which the judge replied that there was no evidence upon that subject, and that if it was paid it was a mere gratuity. Subsequently the jury being unable to agree came into court, and it was claimed that plaintiff’s counsel was then informed of what had taken place, and made no objection. The jury then retired and brought in a verdict for plaintiff for fifty dollars.
    On a motion by the plaintiff’s counsel to set aside the verdict, on the ground of such communication having been made, held, that if the plaintiff knew of it,- and made no objection to the jury’s retiring for the second time, he thereby waived the irregularity.
    That, as in no event could he have been prejudiced by the communication, it furnished no ground for granting a new trial.
    Appeal from an order made at Special Term, denying a motion by the plaintiff to set aside a verdict herein in his favor.

      This action was brought by the plaintiff to recover damages for injuries sustained by him, in falling through an open hatchway on the defendant’s premises.
    On the trial of the cause before Justice Pkatt and a jury, on the 29th day of January, 1879, after the jury had retired to consider of their verdict, and in the absence of the plaintiff and his counsel, and without their consent, Justice Peatt received a written communication from the jury, and sent a written answer thereto to said jury. The following is the communication and answer : “Whether plaintiff had received his salary during the six months.” Answer : “ There is no evidence upon the subject that I remember of,— that he was paid anything while he was laid up; it was a mere gratuity if he was.”
    The jury rendered a verdict for plaintiff for fifty dollars. Plaintiff’s counsel duly objected to the verdict, and motion was made to set the same aside, on the ground that it was error for the justice to send the communication aforesaid to the jury in the ibsence of plaintiff and his counsel, and without their consent.

      Morris & Pearsall, for the appellant.

      Ben}. II. Bayliss, for the respondent.
   . Gilbert, J.:

It is a well established and salutary rule, and one very essential to the proper and effectual administration of justice, that the instructions of the judge to the jury should be openly and publicly imparted.

The right of a suitor to have the trial of his cause conducted openly, with the opportunity to be present, and to except to and review any unwarranted instruction or procedure, is a substantial one, and if any infraction of it occurs the burden rests upon the party maintaining the regularity of the proceedings to show that the communication, or act, or question could not have tended to the injury of the defeated party.

If, however, it appears affirmatively and beyond dispute that the instructions, instead of being prejudicial to the party complaining, was really favorable to him, and could not have worked any injustice, or in any way have affected the result, or rf the irregularity has been cured by the assent of the party alleging it, it is not a sufficient reason for ordering a new trial.

We have not been referred to any case in which the verdict has been sot aside where the irregular communication was shown to be immaterial, or where it was clearly proven that it could not have influenced the result to the prejudice of the defeated party; but the contrary has frequently been held. (Rogers v. Moulthrop, 13 Wend., 274; Horton v. Horton, 2 Cow., 589.) In the cases of Bunn v. Croul (10 Johns., 239), and Taylor v. Betsford (13 id., 487), the practice which had grown up in justices’ courts for the justice to visit the jury, after they had retired, and talk with them about the case, was justly censured and disapproved as objectionable and dangerous ; but in neither of these cases did it appear what the communication to the jury by the justice was.

In Plunkett v. Appleton (41 Sup. Ct., 159), and Watertown Bank v. Mix (51 N. Y., 558), it appeared that the irregular communications were unfavorable to the defeated party, and might Lave affected the result.

In this case the action was brought to recover damages sustained by plaintiff in falling through an open hatchway upon defendant’s premises. After the jury had. retired to deliberate upon their terdict, and while counsel were absent from the court room, the judge received a written communication from the jury inquiring whether the plaintiff had received his salary during the six months, to which the court answered: “ There is no evidence upon the subject, that I remember of, that he was paid anything while he was laid up ; it was a mere gratuity if he was.” Subsequently the jury, not having agreed, were brought into court, where, according to the testimony of several witnesses who were present, plaintiff’s counsel was fully informed, in the presence of the court and jury, concerning the communication and answer, but did not object 'or except to the same, or request further instructions to be given. The jury again retired, without objection on the part of the plaintiff, and rendered a sealed verdict on the following morning in favor of the plaintiff.

Whether this conduct on the part of plaintiff is considered a waiver of the irregularity complained of or not, it is clear that no prejudice to the plaintiff could have resulted from, the instructions given, which were plainly favorable to him.

The order denying plaintiff’s motion for a new trial must be affirmed, with costs.

Present — Baexaed, P. J., Gilbeet and DyemaN, JJ.

Order affirmed, with costs.


text:
    THOMAS CREGIN as Administrator, etc., of JAMES CREGIN, Deceased, Appellant, v. BROOKLYN CROSSTOWN RAILROAD COMPANY, Respondent.

      When a husband may recover for the loss of his wife's earnings — when a verdi, 1 will not be set aside as excessive.

    In an action 'brought by a husband to recover the damages caused by an injur f to his -wife, occasioned by the negligence of the defendant, the husband died before the trial and some two years after the accident. It appeared that before the accident the wife did all the house-work for her husband and three children, assisted in taking charge of a store and earned by sewing sometimes as much as twenty dollars a week. All her earnings were used to support the family.

      Held, that the plaintiff, the administrator of the deceased husband, was properly allowed to recover for the loss of earnings of the wife as well as for the loss of her services, and that a verdict of $2,500 would not be set aside as excessive.-
    Appeal from an order granting a new trial, on the ground that the damages were excessive.
    The action was brought in the City Court of Brooklyn, and a certificate having been filed that two of the judges of that court, were incompetent to sit at the General Term of that court, the appeal was brought on for a hearing before the General Term of the' Supreme Court.
    The action was by a husband to recover for the loss of the, services and society of his wife, and the expenses incurred because of an injury to her.
    After the action was commenced, and about two years and six months after the injury, the plaintiff died, and the action was. revived in the name of his administrator, the plaintiff herein.

      The family consisted of tbe husband, his wife and three sons, of the respective ages, twenty-eight, twenty and sixteen, or thereabouts at the time of the accident.

      J. Warren Lawton, for the appellant.

      Britton <& Ely, for the respondent.
   Gilbert, J.:

The decision of the Court of Appeals, in this case, limits the recovery of the plaintiff, as administrator of the deceased husband, to “ the pecuniary injuries sustained” by his intestate, and which “ diminished his estate.”

Applying these limitations to the verdict it does not appear to us to be excessive.

The question presented is, whether the award of $2,500 made by the jury was in excess of the value of Mrs. Cregin’s services to her husband during the two years and a-half that intervened between the time of her injury and his death.

The testimony showed that in addition to the ordinary household work performed by her prior to the injury, without the assistance of a servant, Mrs. Cregin, who had theretofore enjoyed excellent health, did the sewing, washing and ironing of the family, made the necessary clothing, and, in addition to that, took charge of the store and made sometimes twenty dollars per week by sewing for hire upon a machine, which moneys were applied by her to the payment of household expenses, and with the husband’s, irregular earnings contributed to the common support and maintenance of themselves and their children.

Her injuries were of such a nature as to render her unable to. perform these services during the period in question.

We think that, under the circumstances of the case, the plaintiff.' is entitled to recover for the earnings of Mrs. Cregin, as well as for the loss of the services in the discharge of her ordinary domestic duties.

The evidence did not show that she was carrying on any separate business, or trade, or that the services rendered by her were performed on her sole or separate account, but the contrary clearly appears. In such a case the earnings of the wife belong to the husband under the rule of the common law, and the statute of 1860 does not apply. (Birkbeck v. Ackroyd, 11 Hun, 365; affirmed in the Court of Appeals, September 17, 1878.)

The jury had the right to consider and give compensation for the loss of these earnings, as well as for the loss of the other services of the wife, and their verdict allowed the husband about $1,000 per annum.

"While it is true that the wages of a single servant would amount to a less sum than this, it is by no means certain that a servant would or could have performed the efficient services rendered by Mrs. Cregin, or that she could have discharged the varied and responsible duties devolving upon her as the wife and mother in the charge of the house and family.

As was well said by Mullin, J., in Sloan v. N. Y. C. and H. R. R. R. Co. (1 Hun, 543) : “ The services of a hireling would fall far short of being of the value of those of an affectionate, intelligent and prudent wife.”

In that case an allowance of $10,500 to the husband for the loss of his wife’s service, or $1,000 for each year of the wife’s life, as estimated by the annuity tables was held not to be excessive.

The order appealed from must be reversed, with costs to abide the event.

Present — Bakkakd, P. J., Gilbert and DyemaN, JJ.

Order granting new trial for excessive damages reversed, with costs.


author: Gilbert, J. :

text:
    THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK v. THE NATIONAL BANK OF NEWBURGH, Respondent, AND JAMES BIGLER, Appellant, and others.

      Injunction — when issuable after a sale in a foreclosure action, under section 604 of the Code of Civil Procedure.

    Where, after a sale in foreclosure, hut before its confirmation, the mortgagor, who remains in. possession, attempts to remove from the premises machinery, claimed by the purchaser to constitute a part of the realty, an injunction restraining him from so doing may properly be issued under section 604 of the Code of Civil Procedure.
    Appeal from an order made at Special Term continuing an injunction.
    Under a foreclosure judgment in this action, property of James Bigler, the mortgagor, was sold by-a referee, and purchased by the National Bank of Newburgh, which held a second mortgage on the same property, taken to secure a debt from Bigler to the bank. The property consisted of a dock and river front in Newburgh, upon which was a large saw mill and planing mill, containing sawing, planing and other machinery, worked by steam power. At the time of the foreclosure sale Bigler was and continued in possession of the property, and after the sale and before the delivery of the deed attempted to remove the machinery. The bank, as purchaser, presented its petition and obtained a temporary injunction, with an order to show cause why it should not be continued. On the hearing an order was made continuing the injunction, from which this appeal was taken.

      H. L. Fancher, for the defendant Bigler, appellant.
    The remedy sought here by injunction is improper. Defendant Bigler is entitled to a trial by jury on the questions involved; and there is no case made for injunction. (.Redfleld v. Middleton, 7 Bosw., 649; Murray v. Knapp, 42 How. Pr. Rep., 462; Watson v. Hunter, 5 J. Ch., 169; Park v. Musgrave, 2 S. C. R. [T. & C.J, 573; Thompson v. Mathews, 2 Edw., 212; Barnes v. McAllister, 18 How. Pr., 534; Baleom v. Julien, 22 id., 348; Harrison v. Newton, 9 N. Y. Leg. Obs., 347.) Smce the Code (§ 602) abolishing the writ of injunction, the court can only grant ail injunction, by order, in an action where the right to it “ depends upon the nature of the action.” (Code, § 603; Bliss’ Code, p. 474.) There must be a complaint showing a right to final relief, and it must demand an injunction as a part of the relief sought. (Homey v. McCrea, 4 How. Pr., 31; Olsen v. Smith, 7 id., 481; Ilulse v. Thompson, 8 id., 475; Maltice v. Gifford, 16 Abb. Pr., 246; Morgan v. Quackenbush, 22 Barb., 72; Springsteen v. Powers, 4 Robt., 624; Fellows v. Heermans, cited in 45 N. Y., 645; Gentil v. Arnaud, 38 How. Pr., 94; Frown v. The Keeny S. G. AlSS., 59 N. Y., 243; id., 176.)

      F. A. Brewster, for the defendant, respondent,
    The National Bank of Newburgh.
   Gilbert, J. :

We think that this proceeding is authorized by section 604 of the Code of Civil Procedure. An action of foreclosure by sale being one quasi in rem, may properly be characterized as one that is pending, until the sale has been confirmed and the purchaser has been let into jjossession. Until that has been done, acts, such as this injunction restrains, are manifestly in violation of the plaintiff’s rights respecting the subject of the action, and they tend to render the judgment in a material degree ineffectual.

The question whether the machinery in controversy is a part of the realty with which it is connected is largely one of fact. There is ample evidence to warrant a finding that it is actually annexed to the realty, and that such annexation was made by the owner thereof with the intention of making the machinery a permanent accession to the freehold.

We think, therefore, the conclusion reached at Special Term is correct. (Potter v. Cromwell, 40 N. Y., 287; McRea v. Cent. Nat. Bk., 66 id., 489.)

The order must be affirmed, with costs and disbursements.

Present — Gilbert and Dyeman, JJ.; Barnard, P. J., not sitting.

Order affirmed, with costs and disbursements.