author: Macomber, J.

text:
    Louisa P. Chard et al., Adm’rs, App’lts, v. Horatio N. Holt et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department, Filed

      April 13, 1892.)

    ‘Taxes—Notice to bedeem—Estoppel.
    Certain land upon which plaintiffs held a mortgage was sold for taxes of two different years, and the purchaser thereat conveyed his rights therein to defendant. Within two years from the last sale plaintiffs filed notice that they were entitled to be served with any notices required by law of the purchaser and especially by the purchaser at the last mentioned sale; they having no knowledge of any previous sale. Defendant then served notice on them to redeem from the last sale ; whereupon they paid the amount thereof to county treasurer and defendant received and retained the same. Reid, that whatever rights defendant had under the prior sale were surrendered in the recognition by him of plaintiffs’ right to redeem under the last sale, and that he could not claim title to the lands by virtue of the prior sale.
    Appeal by the plaintiffs, Louisa P. Chard and Greorge A. Cane, administrators with the will annexed of Eufus C. Palmer, deceased, from a j udgment entered in Chautauqua county, April 8, 1891, on the decision of the court at circuit in an action of ejectment tried, by consent, without a jury.

      Thomas J. McKee, for app’lts; Silas W. Mason and 8. A. Simons, for resp’ts.
   Macomber, J.

The plaintiffs’ title to the lands, for the possession of which this action was brought, is derived by them through .an action for, and a judgment of foreclosure and sale of mortgaged premises, at which sale they, as administrators, became the purchasers.

The title of the principal defendant, Horatio N. Holt, is derived from certificates of tax sales issued to him, one from a tax sale which occurred on the 27th day of October, 1885, and the other November 23, 1887.

The facts in this action as.agreed upon, and as found by the •court, are briefly as follows: On the first day of June, 1872, Amelia Holt, the owner of the premises, executed a mortgage thereon to Eufus C. Palmer. The debt secured by the mortgage having become due and payable, proceedings were taken by these plaintiffs, who aré the administrators with the will annexed of Eufus 0. Palmer, to foreclose the mortgage, and a notice of pendency of such action was filed in the proper county, December 4, 1885. Such proceedings were had therein that a judgment •of foreclosure and sale was rendered in that action on the 29th •day of August, 1889, and a sale of the mortgaged premises was had February 21, 1890, at which sale the plaintiffs, being the highest bidders therefor, purchased the property, and a deed was properly executed to them by the sheriff of Chautauqua county. Having this title, and finding the defendant Horatio N. Holt and •others in possession, a demand of possession of this land was made upon them which was refused, and accordingly this action, to recover the possession of the lands in dispute, was begun.

The defense, which prevailed upon the trial, rests upon a tax title in Horatio N. Holt. These lands were sold for county taxes on the 27th day of October, 1885, on a levy of taxes made in the year 1884, upon an assessment thereon against Amelia Holt, who was at that time the owner. One T. Charles Wilson became the purchaser at such tax sale, and he received the certificate from the •county treasurer of Chautauqua county on the 27th day of October, 1887, and subsequently such county treasurer executed and delivered to him a deed of the premises to which he seemed to be entitled under such sale, which was recorded on the 14th day of May, 1888.

Another sale for like taxes was had finder an assessment made in the year 1886, and a' sale of the same premises took place on the 23d day of November, 1887, under the direction of the county treasurer, and the same lands were again struck down to T. Charles Wilson, to whom a proper certificate of sale was subsequently delivered.

Wilson, on the 17th day of January, 1888, by an instrument in writing sold and assigned this certificate of sale, and all his rights thereunder, to the defendant, Horatio N. Holt; and on the 15th ■day of May of that year, Wilson quit-claimed the premises to Holt by a deed recorded on that day. But Wilson had no title to the land, except that derived by him by virtue of the tax sales hereinbefore mentioned.

On the 11th ,day of November, 1889, and within .two years after the sale for the taxes of 1886, the plaintiffs, as such administrators with the will annexed, filed a notice as mortgagees of the-premises, which is set out in the case, to the effect that they claimed to be entitled to be served with any notice required by any provision of law by the purchaser or purchasers of the premises at any sale thereof made for taxes, and particularly of a. notice required to be given by such purchaser or purchasers attire sale made on the 23d day of November, 1887, for the taxes-of 1886.' Thereupon, and on the 17th day of December, 1889,. the defendant Holt served on the plaintiffs, and on the same day filed a notice in the county treasurer’s office requiring the plaintiffs to redeem these lands from the tax sale made on the 23d day of November, 1887, for the taxes of 1886. On the 25th day o£ January, 1890, the plaintiffs paid to the county treasurer of Chautauqua county the whole amount of these taxes, being $358.59 ; and the treasurer subsequently handed over such money to the defendant Horatio N. Holt, who received it in pursuance of such notice to redeem, and he has since retained such money as his own. At the time of the service of the notice to redeem, this defendant, Horatio N. Holt, had notice of the existence of the above mortgage, and of the fact that there had been a judgment of foreclosure therein, but the sale of the mortgaged premises to the plaintiffs was not had until February, 1890, two months later.

Upon the payment by the plaintiffs of the above mentioned sum of money (viz., $358.59) the county treasurer executed and. delivered to them a certificate of redemption in due form of law.

Upon these facts the learned justice at the circuit held that the plaintiffs had failed to make a case entitling them to the possession of the premises, and accordingly dismissed their complaint. In this conclusion we cannot concur. In our view of the case, whatever rights the defendant Horatio N. Holt may have had by virtue of the sale made in the year 1885, such rights were entirely surrendered in the recognition by him of the right which the plaintiffs had to redeem under the tax sale made November 23, 1887, for the unpaid taxes of 1886. Mr. Holt having accepted the money deposited by the plaintiffs "with the county treasurer for the redemption of the taxes laid upon these lands in 1886, it would seem to follow, necessarily, that the plaintiffs are subrogated to any and all of Mr. Holt’s rights acquired under the tax sale of 1887. Having elected to keep alive the tax sale certificate of November 23,1887, and having notified the plaintiffs to redeem from such tax sale, with a knowledge of their interest in the premises, Holt is conclusively charged with the consequences of an election to the plaintiffs, as mortgagees or owners, to redeem,, and he cannot now be permitted to recede therefrom.

If the defendant relied upon the deed of the 28th of October, 1887, executed - in pursuance of the sale of 1885, for the taxes of 1884, it would" seem to be hardly less than a fraudulent transaction for him to serve a notice to redeem the lands from the tax laid in 1886. Wood v. Seely, 32 N. Y., 105; Sherman v. McKeon, 38 id., 266. We agree with the learned counsel for the respondents that chap. 229 of the Laws of 1879 provides an adequate system for the collection of taxes and for the sale of lands for unpaid taxes in Chautauqua county and for the vesting of a fee in the purchaser at such sales. So far as we are able to observe, notwithstanding § 32 of this act, incorporating the general tax law, chap. 427 of the Laws of 1855, no question relating to the eighty-second section, concerning notices to be given .in cases of sales of land for unpaid taxes by the comptroller of the state, can arise. By § 1 of chap. 285 of the Laws of 1862, § 82 of chap. 427 of the Laws of 1855 was repealed. By § 1 of chap. 280 of the Laws of-1870 the repealing statute was itself repealed without any provision reviving the repealed section. This eighty-second section was again abrogated by chap. 556 of the Laws of 1890.

The question, as we deem it to be, is not whether the plaintiffs have conformed to the general - tax laws of the state in so far as they may differ from the statute for levying and collection of taxes and the sale of lands thereunder in the county of Chautauqua; but it is rather confined to the precise situation brought .about by the invitation in writing of the defendant, Horatio N. Holt, to the plaintiffs to come in and redeem the lands from the •tax sale of 1887, with a necessary implication that if such redemption was had and the moneys paid to the county treasurer, .and he in turn should turn them over to the defendant, that any claim made by the defendant thereafter should be in subordination to the rights acquired by the plaintiffs through such redemption. The plaintiffs themselves were ignorant in fact of the, ■sale made in 1885 for the tax of 1884, but had been made acquainted with the sale made in 1887.

„ At the time of the notice served by the defendant Holt to redeem from the last named sale, the title had not so ripened in the purchaser and his grantee under the sale made in 1885, as that it could not be divested by redemption thereunder under the general tax laws of the ■ state. But, as we view the case, there is no question touching the rights of the parties under the tax of 1884, which was followed by the sale of 1885. Under the evidence, the plaintiffs had a complete title to the premises by virtue of the mortgage foreclosure and sale above mentioned, except as the .-same might have been divested by reason of their omission to protect the property from taxation.

But it is argued by the learned counsel for the respondents, that isasmuch as the notice of redemption contained a clause to the effect that the same should have no effect upon any previous sales heretofore completed and perfected under the law, that he can still claim title to the lands by virtue of the sale made in the year 1885, and that the only effect of such redemption was to add to the mortgage security the amount paid for such redemption. But, as it seems to us, this qualification can have no influence upon the general question above considered. It does not specify what sales had theretofore been had; and it is stipulated, as a fact i:i ilr.' case, that the plaintiffs did not hear of the sale made in 1885 until after the entry of their judgment in the foreclosure action. Furthermore, we do not think it was competent for the defendant to qualify or limit the effect of his notice to redeem, provided the same was actually followed by a payment by the plaintiffs of the moneys in pursuance of the notice, and a receipt and retention by the defendant thereof. If this conclusion be not correct, the defendant' Holt would be in the attitude of having received money from the plaintiffs to which he was not entitled, and a fraud would be perpetrated under the guise of enforcing the laws of 1879, applicable to the county of Chautauqua. For this reason we think that the judgment appealed from should be reversed.

Judgment appealed from reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., concurs; Lewis, J., not sitting.


source: Caselaw Access Project

author: Dwight, P. J.—The

license: Public Domain

text:
    Ida M. Cummings, Resp’t, v. Mary A. Line, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Slauder—Damages.
    In an action for slanderous words imputing unchastity to plaintiff it appeared that both plaintiff and defendant lived in the same house; that, there were frequent altercations between them; that the defendant was of irascible temper and violent speech; that the words complained of were-spoken in such altercations with plaintiff or her father in her presence, and. consisted of opprobrious epithets, and were in only a few instances casually heard by others; that they were not spoken secretly, insidiously <«r in a manner likely to affect plaintiff’s reputation. Held, that a verdict for $3,000 was excessive, notwithstanding a justification was unsuccessfully-attempted.
    Appeal from a judgment in'favor of the plaintiff entered on the verdict of a jury at the Wayne circuit, and from an order denying the defendant’s motion for a new trial made on the minutes of the court.

      P. Chamberlain, Jr., for app’lt; George F. Yeoman, for resp’t.
   Dwight, P. J.—The

plaintiff recovered in an action of slander, in which the words charged to have been spoken by the defendant imputed unchastity to the plaintiff. It was a case of two families in one house, where the defendant was the owner of the farm and the plaintiff’s father took it to work on shares. These were two prolific sources of disagreement and offense, which soon developed into a chronic quarrel, in which hard words were used on both sides, and even physical violence was at one time resorted to by the plaintiff’s father toward the defendant’s husband. The plaintiff was her father’s housekeeper and woman of all work. The defendant, if the plaintiff’s testimony is to be credited, was a. woman of irascible temper and violent speech, and all or most of the actionable words charged against her were spoken in personal altercation with the plaintiff herself,- or with the plaintiff’s father in her presence. The words usually consisted of opprobrious epithets, either addressed to the plaintiff herself or applied to her in angry conversation' with her father, and in a few cases only casually heard, or overheard, by other witnesses.

No instance is disclosed in the case in which the actionable words were spoken secretly, insidiously or in a manner likely to •affect injuriously the reputation of the plaintiff. The very extravagance and exaggeration of the language charged, though apt to excite resentment, was much less calculated to injure reputation •than if it had been deliberate, dispassionate and guarded in tone. Indeed, the call for compensation to the plaintiff was rather for injury to her feelings than to her reputation. And besides there was the question of exemplary or punitive damages. The verdict was for $3,000. We think it was altogether disproportionate to the character arid effect of the wrong committed There was, it is true, an attempted justification of the words, which the jury must have found not to be successful, and which properly went in aggravation of damages, but even then the verdict was largely in excess of what would have ordinarily been expected in a case ■ of this character. Aside from the effect of the attempted justification a verdict of $500 would have been liberal for words spoken in the manner and under the circumstances shown in this case; •and if that had been enhanced by an equal amount by reason of the unsuccessful attempt to justify, the verdict for $1,000 would, we think, have satisfied the highest expectations of the persons •engaged in the prosecution.- It is probable that the extravagance -of the verdict may be accounted for, at least in part, by the fact that there came out, incidentally, in the testimony a boastful declaration of the defendant to the effect that she was worth $80,000. The fact was not in issue,- and if evidence had been offiered to prove it, it must have been excluded, Enos v. Enos, 33 St Bep., •357, and the cases cited, but it is mentioned among the estab • liahed facts in the case in the brief of counsel for the respondent here, and probably was not allowed to escape the attention of the jury on the trial.

, We think a new trial should be granted on the ground that the 'verdict was excessive, unless the plaintiff prefers to stipulate to • reduce it to the sum of $1,000.

Judgment and order reversed and a new trial granted, with •costs to abide the event, on payment by the defendant of the costs of this trial already had, unless the plaintiff stipulate to reduce •the damages entered in the judgment to the sum of $1,000, and in that case the judgment as modified is affirmed, without costs of this appeal to either party.

Macomber and Lewis, JJ., concur.


author: Dwight, P. J.

text:
    Erastus F. Root, Overseer, Resp’t, ex rel. Arthur C. Fisher et al., App’lts, v. Albert J. Alexander, Resp’t.

      (Supreme Court, General Term, Fifth, Department,

      Filed April 13, 1892.)

    .Excise—Actions in name oe overseer.
    Where an overseer of the poor refuses or neglects to prosecute for a penalty under the excise law upon proper complaint and proofs, and his term expires, an action may be maintained in the name of his successor without a renewed service of the complaint and proofs upon the overseer in office at the time the action was commenced.

      Appeal by the relators from an order of the Erie special term, dismissing the complaint and discontinuing the action.

      W. Martin Jones, for relators, app’lts; G H. Brown, for overseer, resp’t; Rufus Scoot, for def’t, resp’t
   Dwight, P. J.

The statute relating to penalties under the excise law provides that they shall be sued for and recovered by the overseers of the poor of towns. Laws of 1857, chap. 628, § 22, as amended by Laws of 1873, chap. 820, § 1 (Birdseye, 1053, § 26). It is further provided by § 30 of the former enactment as amended by § 2 of the latter (Birdseye, 1054, § 34), that in case the overseers “shall for the period of ten days after complaint to them that any person has incurred such penalty, together with reasonable proof of the same, neglect or refuse to prosecute for .such- penalty, any other person may prosecute therefor in the name of the overseers of the poor of the town.”

February 20, 1891, Mark A. Furnald was sole overseer of the poor of the town of Bolivar, and on that day the relators served upon him as such the requisite complaint and proof in writing that the defendant had incurred-penalties for violations of the ex-' cise law. The overseer neglected for the period of ten days thereafter-to bring an action for the recovery of such penalties, and on the 5th day of March his term of office expired, and he was succeeded by Erastus F. Root. On the 20th'day of March the relators commenced this action for the recovery of the same penalties in the name of the new overseer of the poor.- The single question on the merits presented by this appeal is whether under the statute the action can be maintained without a renewed service of the complaint and proof upon the overseer in office at the time the action was commenced. The court at special term held otherwise, and on that ground, on motion of the overseer, made the order from which the appeal is taken. We think the order was erroneous.

The overseer of the poor is a quasi municipal corporation having perpetual succession. The incumbency of the office changes but the office remains the same. All rights acquired by others under .one incumbency of the office, continue under those which succeed. By making the complaint to the overseer in February, no action having been commenced by him within ten days thereafter, the relator acquired the right to bring the action in the name of the overseer in March. It was the overseer of the poor to whom the complaint was required to be made, and it was the overseer of the poor in whose name the action was required to be commenced; not necessarily the same overseer in both cases, but, in each case, the overseer in office at the time. The statute, with this construction, imposes no personal liability upon one incumbent of the office for the neglect or default of his predecessor. The new overseer is only the nominal plaintiff, and in no event can be made liable for the costs of the action. He is even relieved from the responsibility for the conduct of the action which he would have assumed had he brought it in his own name as overseer, on a complaint made to him, and he bears no other relation thereto than he would have done had he declined to bring the action on a ■complaint so made.

The question seems not to have been adjudicated in any reported case, but upon the principles suggested above we think the motion should have been denied. The order appealed from should be reversed and the motion denied, with ten dollars costs to the appellants of opposing the motion, and ten dollars costs and the disbursements of the appeal.

So ordered in this and five other appeals submitted therewith.

Macomber and Lewis, JJ., concur.


text:
    James E. Ketchum et al., Resp’ts, v. Elizabeth Herrington, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

      1. Contract—Performance.
    A finding of defects in the construction of a building, which with the cost of completion will exceed one-third of the contract price, is inconsistent with a finding that the plaintiffs constructed the buildings substantially in accordance with the contract and specifications, and the two together will not support? a conclusion that plaintiffs are entitled to recover on the contract.
    3. Same—Defects.
    It is only technical, inadvertent or unimportant omissions or defects which may be disregarded in an action on a building contract. Defects which amount, in value, to one-third of the contract price, and which render a building unsightly and even unsafe for occupation, cannot be so disregarded.
    Appeal from a judgment entered in Wyoming county on the ■report of a referee.

      If. F. Remington, for app’lt; A. Harrington, for resp’ts.
   Dwight, P. J.

action was on a building contract to recover a balance of the contract price of building two barns, and the value oLcertain extra work and materials done and furnished by the contractors. The defendant by her answer denied that the contract had been performed according to its terms, and set up a counterclaim of damages for its non-performance. Among other ■deviations from the plans and specifications upon which the contract was based, it was conceded that the “ collar beams ” which ■should have joined together the tops of the two “ purloin posts ” in each bent of the grain barn were omitted from the structure, and that nothing was substituted in their place. The plaintiff's contended that the omission was with the consent of the defendant, which she denied, and to that question a considerable portion of the evidence in the case was addressed. The referee makes no specific finding on this question, but his conclusion of fact as to the amount of damages sustained by the defendant by reason of defects of construction shows plainly that he decided that the defendant had not consented to or waived the defect in ■question. And so he says in his opinion, which may be referred to for the purpose of explaining how he arrived at-the conclusions •of his rather meagre report. There he speaks of these collar beams as “ties which were designed to hold the building together and support the roof,” and says that the result of their omission has been “that the sides of the building have spread apart and the roof is sunken, rendering it unsightly and the use of the barn dangerous." He says further of the tie beams, “ they were required by the contract and were necessary to the safe construction of the building,” and further that “ the defect which occasions nearly the defendant’s entire loss and damage sustained by the faulty construction, is the absence of the tie beams or girders.” These statements are entirely borne out by the evidence, and they show not only the serious nature of the omission, but. that the referee must have found that it was not consented to by the defendant, and that it constituted the chief basis for the damages awarded to her.

The contract price .of the work, completed, was $2,500, of which the defendant had paid $1,500 during its progress. The referee finds that the plaintiffs left the work not entirely finished, and that the defendant completed it at an expense of $126.06, and he finds : “ That at the time the plaintiffs quit work on said buildings the same were worth, by reason of defects in the construction thereof, $750 less than if constructed, in the manner required by the contract and the plans and specifications which were a part thereof, besides the amount expended by the defendant in the completion of said buildings.” And yet the report, contains a formal finding under the designation of findings of fact, to the effect that the plaintiffs constructed the buildings “ substantially in accordance " with the contract and specifications, and as a sole conclusion of law that the plaintiffs are entitled to recover the balance of the contract price and “ extras,” after deducting the damages for defective construction and the sum paid by the defendant for the completion of the buildings.

We are of the opinion that the two findings (1) of the defective-construction of the buildings and the damage occasioned to the defendant thereby, and (2) that they were constructed in substantial accordance with the contract and specifications, do not stand together, and that the two taken together do not support the conclusion of law that the plaintiffs are entitled to recover on the contract.

The entire contract price was $2,500, while the allowance to the defendant for defective construction, in violation of the contract, with the value of the work in completing the buildings left undone by the plaintiffs, amount to the sum of $876, or more than one-third of the entire contract price. So far from being substantially in accordance with the contract, this work seems to have been substantially in violation of the contract, and there is no' rule of law which permits such defects and failures of performance to be disregarded in determining whether a contract has been substantially performed. So we said, in substance, in Oberlies v. Bulinger, 33 St. Rep., 443, and the failure of performance in that case was certainly not more substantial than in this. The cases there cited, of Smith v. Brady, 17 N. Y., 173, and Glacius v. Black, 50 id., 145, fully sustain the conclusions in that case, as well as that which we have reached in this. It is only technical, inadvertent or unimportant omissions or defects which may be-disregarded in an action on a building contract, Sinclair v. Tallmadge, 35 Barb., 802, and it may safely be said that no case has-ever gone so far as to hold that defects which amount in value to one-third of the contract price, and which render a. building unsightly and even unsafe for occupation, could be so disregarded.

The objection is suggested, that the finding of substantial performance is a finding of fact and not subject to exception. That-finding, though coming under the heading of conclusions of fact, is manifestly a mixed conclusion of fact and law. In the case of Glacius v. Black, 67 N. Y., 563, it was held that the question whether a defect, not more radical or material than that disclosed in this case, constituted a breach of the contract, was not a question for the jury but a question of law for the court. But even if an exception did not lie to the finding denominated one of fact, the exception to the conclusion of law is sufficient to raise the question whether that conclusion is supported by the findings of fact; and, as already intimated, we are of opinion that the two findings of fact are inconsistent with each other, and that together they do not support the conclusion of law.

The judgment appealed from should be reversed, and a new trial granted.

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

Macomber and Lewis, JJ., concur.


text:
    Addis E. Perry, Pl’ff, v. Patrick J. Sutley, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    False imprisonment—Probable cause.
    Plaintiff, a cheese manufacturer, loaned money to one S. to buy cows, on which he took a chattel mortgage and also an order for two-thirds of the cheese money of S. until the loan was paid. One T. owned the other third. Being suspicious that the milk delivered at the factory by S. was watered, plaintiff informed a.milk inspector, who promised to take a sample, but informed defendant, who was assistant dairy commissioner, of the facts, and the latter procured the arrest of plaintiff charging that he and T. delivered watered and impure milk. On stating the facts plaintiff was discharged. In an action for false imprisonment, Held, that the question of probable cause should have been submitted to the jury, and that a nonsuit was error.
    Motion by plaintiff for a new trial on a case and exceptions ordered to be heard in the first instance at general term after a nonsuit granted at the Allegany circuit.

      F. M. Todd, for motion; O. P. Stoclcwell, opposed.
   Dwight, P. J.

The action was for false imprisonment. The plaintiff was a cheese manufacturer, owning and operating several cheese factories, one of which, known as the Armoth factory in the town of Ganeadea, in Allegany county, he operated by an agent. He had loaned money to one Stone to buy cows with, and had taken a chattel mortgage on the cows for security. Stone delivered his milk at the Armoth factory, and he gave the plaint-, iff, with his mortgage, an order entitling the latter to retain two-thirds of his (Stone's) cheese money until the debt was paid. It seems one Taft had become entitled, by some arrangement with Stone, to the other one-third of Stone’s dividends, and that the milk delivered by Stone was credited at the factory to the plaintiff and Taft in the proportions mentioned. Some time shortly before the 3d of September, 1890, the plaintiff’s manager at the Armoth factory informed the plaintiff that he suspected that Stone’s milk was watered, and the plaintiff informed one Story, a milk inspector, of the suspicion; Story promised him to take a sample of the milk for analysis, and he aid so on the 3d day of September. The analysis tended to show that the milk was watered, and Story reported the result to the plaintiff, who explained to him what connection he had with the milk in question.

The defendant was an “ assistant dairy commissioner,” and seems to have been engaged at this time, with an attorney, in instituting prosecutions in the vicinity of Caneadea for alleged violations of the cheese factory law. Story communicated to him and his attorney what he knew about the quality of the milk delivered by Stone, and what the plaintiff had explained to him about the ownership of the milk and of his (the plaintiff's) connection with it; and it was upon this information that the defendant instituted the prosecution complained of. He procured Story to sign and verify a deposition, drawn up by his attorney, charging that the plaintiff and Taft had delivered to the cheese factory watered, impure, adulterated and unwholesome milk, and were guilty of a violation of the statute in such case made and provided, and praying that a warrant issue for their arrest.

With this deposition the plaintiff and his attorney went before a magistrate of the town of Cuba, and procured a warrant to be issued, and placed it in the hands of a constable with particular directions to arrest the plaintiff; although Story, at the time, protested that it would not be necessary to arrest Mr. Perry, but that if he could be notified to come up to Cuba he would explain the matter. The plaintiff was arrested on the warrant thus issued and being brought before the magistrate and making the statement which he had formerly made to Story, the complaint was withdrawn and the plaintiff discharged.

These are the facts which the uncontradicted evidence, given on the part of the plaintiff, tends to establish. We think it should have been submitted to the jury to say whether there was probable cause for the prosecution instituted by the defendant.

The rules of law applicable to actions of this character are very simple and familiar. There must be want of probable cause and malice; but if the former is established the latter may be inferred therefrom. Murray v. Long, 1 Wend., 140; Hall v. Suydam, 6 Barb., 83; Wanser v. Wyckoff, 9 Hun, 178. In respect to what constitutes probable cause the rule is well stated by Judge Paige in Hall v. Suydam, supra. He says “ Good faith, merely, is not sufficient to protect the defendant from liability; there must be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the plaintiff was guilty of the crime with which he was charged, to make out such a probable cause as will be a defense.”

These simple rules serve to point out the issues which should have been submitted to the jury in this case.

The exception to the direction for a nonsuit was well taken and the motion for a new trial must be granted.

Motion for a new trial granted, with costs to abide the event.

Macomber and Lewis, JJ., concur.


text:
    George L. Pratt, App’lt, v. Theodore W. Myers et al,. Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Interpleader—Attaching creditor.
    Moneys deposited by one A. with defendants was attached by a creditor, and twelve days thereafter A. informed defendants that he had assigned the deposit to the plaintiff, who demanded the same and brought this-action to recover it. Held, that an order interpleading the plaintiff in the attachment and the sheriff was properly granted, defendants being subjected to a double demand, and there being no suggestion of collusion.
    Appeal by the plaintiff from an order of interpleader made at the Brie special term, and entered in Erie county on the 5th day of November, 1891.

      M. Shire, for app’lt; Simpson & Werner, for resp’ts.
   Dwight, P. J.

The admitted facts presented by the papers on this motion fully justify the granting, of the order. Before the 19th day of January, 1891, one John C. Allen had deposited with the defendants, who were bankers in the city of New York, the sum of $4,000, in the name of “ Allen & Co.; ” on the day mentioned he caused the deposit to be transferred to the name of “ Allen & Co., Agents; ” on the 19th day of March the sheriff of New' York county levied on the interest of Allen in the fund and deposit in question, by virtue of an attachment issued out of the supreme court in Onondaga county, at the suit of one Thomas S. Groly against the said John 0. Allen. Twelve days after the levy of the attachment Allen for the first time informed the defendants that the deposit had been assigned by him to the plaintiff in this action, and the latter afterwards demanded of the defendants the payment of the deposit to him, and, on the 1st day of September, commenced this action in Erie county to recover the same. Thereupon the defendants moved on due notice to all parties that Croly, the plaintiff in the attachment, and Gorman, the sheriff who- levied the attachment, be required to interplead with the plaintiff, in the place and stead of the defendants, as defendants in this action, and that, upon payment by the latter into court of the sum of $4,000, they be relieved and discharged from all further liability in the premises; and the order was granted,, from which this appeal was taken.

These facts seem to present all the elements of a case for inter-.pleader. There is plainly a real controversy between the plaintiff in the attachment and the plaintiff in this action. The present -defendants are'subjected to a double demand, and there is no suggestion of collusion betwen them and the defendants proposed to be substituted in their place. Crane v. McDonald, 118 N. Y., 648; 30 St. Rep., 98; Jarvis v. Benedict, 37 id., 588.

Counsel for the appellant in his brief correctly states the real ■question to be “ whether ' at the time of the levy the debt attempted to be levied upon was then due to Allen, or had been previously transferred by him to the plaintiff Pratt.” That undoubtedly is the question in the case, but it is a question to-be litigated in the action between the two claimants of the fund, and not on this motion, and by the defendants, who disclaim any interest in the fund, and declare their readiness to pay it into court, to abide its determination of the question thus propounded.

It is true that the affidavit of the plaintiff read on the motion -contains a statement of facts tending to establish his title to the fund; but these facts the plaintiff in the attachment has as yet had no opportunity to meet. So far as they are not already alleged in the plaintiff’s complaint, they may be set up by way of an amendment to that pleading, which is expressly provided for by the order appealed from, and by that means an issue will be tendered in which the new defendants may join by their answer. That issue is one in which the present defendants have no interest.

The order appealed from should be affirmed, with ten dollars -costs and disbursements.

Macomber and Lewis, JJ., concur.


text:
    Frank R. Caldwell, App’lt, v. J. Martin Bodine, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1892.)

    Conversion—Ownership—Failure of proof.
    The complaint in an action for conversion alleged the ownership by plaintiff of two notes and a chattel mortgage, and that defendant'unlawfully detained them from her possession. The proofs showed that they -were made by plaintiff’s husband, who sent them to her to sign and return to him for use in obtaining his release from arrest under a body execution, and that they were delivered to defendant’s attorney to procure the husband’s release. Held, that while plaintiff might maintain an action in equity to set aside or cancel the securities as having been procured by ■duress, the proof showed that she was never the owner of them in such Sense as to entitle her to sue for conversion, and that a nonsuit was properly granted.
    Appeal from a judgment entered on a non-suit granted at the Cayuga circuit, and from an order denying the plaintiff’s motion for a new trial made on the minutes of the court.

      James Wright, for app’lt; A. J. Parlcer, for resp’t.
   Dwight, P. J.

The plaintiff’s proofs, if they did not establish, were sufficient to indicate that she bad an undoubted cause of -action, viz., to be relieved against four promissory notes, signed by her with her husband, and payable to the order of the defendant, and a chattel mortgage executed by her as collateral to the notes, on the ground that her execution of the several instruments mentioned was procured by duress of the unlawful imprisonment of her husband on a body execution. The evidence tends to show a very gross case of false imprisonment, based upon the falsification of a transcript of a judgment of a justice of the peace. The fault of the plaintiff’s case was in her choice of a remedy. This action was brought for the conversion of the securities above described, except that, in the complaint, the notes are described as signed, or executed by the plaintiff alone. To establish this cause of action it was necessary that the plaintiff should prove that she was the owner of the notes and chattel mortgage, and that they were either unlawfully taken or unlawfully detained from her possession; and such was the allegation of her complaint. The proofs showed that the plaintiff’s husband, being in arrest on a body execution issued on a judgment in favor of the defendant, negotiated a settlement of the claim against him, and to that end executed the four notes in question and sent them with the draft of the chattel mortgage to the plaintiff, with the request, in substance, that she add her name to the notes, and execute the chattel mortgage and return the papers to him in order that he might use them to obtain his release from the arrest; that the plaintiff did as requested and returned the papers to him; and that he delivered them to the attorney or agent of the defendant, and that thereupon, and in consideration of such delivery, the execution was discharged and the judgment against him was satisfied.

It is very clear that, under these circumstances, the plaintiff was never the owner of the securities in question in such sense as to entitle her to maintain trover for their conversion. The notes were the notes of her husband and the mortgage was collateral security thereto. The former were signed by the plaintiff as surety for her husband, and the mortgage executed by her for his benefit, and all were employed by him for the purpose for which they were made and he has paid his own debt thereby. The transaction as to him may have been voidable but it was not void, and he would be entitled to a surrender or cancellation of the securities only in equity, and upon making such restitution as equity might require. So too the plaintiff, upon the facts which the evidence in this case tends to establish, might undoubtedly maintain an action in equity to set aside or cancel the securities in question as to herself; but it is equally clear that her action of trover must fail.

The objection that the grounds of the motion for a nonsuit were not specified cannot avail the plaifitiff. The defect of, the plaintiffs case was radical, and could not have been remedied by .any further proof. The cases cited on this point by counsel for the appellant are, mostly, to the effect that the party whose motion for a nonsuit has been denied, cannot avail himself of an exception to that ruling when he has omitted to specify the grounds of his motion.

The nonsuit was manifestly not granted on the ground of variance between the notes as described in the complaint and thole offered in evidence; and if there was error in the ruling which excluded them, it was not to the prejudice of the plaintiff. She has had the full benefit of the evidence afforded by the notes, - as-if they had been formally received in evidence. Most of the other objections to rulings during the trial were obviated by the-disposition made of the case.

The nonsuit seems to us to have been properly granted and the judgment and order appealed from must be affirmed.

Macomber and Lewis, JJ., concur.


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    In the Matter of the Application of The Silver Creek & Dunkirk Railway Co., to Appraise Lands of Charles I. Baker and Edwin M. Hinman, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Eminent domain—Award.
    Where no erroneous methods of procedure are disclosed hy the record, and no erroneous principles shown to have heen adopted by the commissioners in making their award, it is the duty of the appellate court not to-seek for technical errors in the admission or rejection of testimony, hut rather to affirm the appraisal where the commissioners have acted fairly and have exercised properly a judgment which is required of them under the statute.
    Appeal by the Silver Creek & Dunkirk Railway Company from an order of the special term-of the supreme court, entered in Chautauqua county September 28, 1891, confirming that portion of the award made to land owners Charles I. Baker and Edwin M. Hinman of the sum of $5,600, as being excessive; and from a judgment entered in said county on the 30th day of September,, 1891, upon such award.

      C. D. Murray, for app’lt; George 0. Stearns, for resp’ts.
   Macomber, J.

The appellant filed its petition in the supreme court in pursuance of § 3360 of the Code of Civ. Pro., for the acquisition of lands of Baker, Hinman and others; and thereupon three commissioners were appointed under the statute to appraise the.damages for such taking. The report of the commissioners awarded to the respondents Baker and Hinman the slim of $5,600. It also awarded' damages to other land owners; but no question-arises upon this appeal, except in respect to the award to the respondents Baker and Hinman. The appeal is brought in pursuance of § 3375 of the Code.

The points made by the learned counsel for the appellant relate wholly to alleged errors of the commissioners in the reception and rejection by them bf evidence. The subject matter of these several exceptions has been considered in connection with the entire evidence in the case, and we do not think that there was any error upon the hearing which should lead us to a reversal of the determination made by the commissioners; although if the action were one at law to be tried and determined exclusively by common law rules of evidence, some doubt might exist touching several such exceptions. We think it is not necessary to examine these exceptions in detail; for as a whole they fall under one general observation, and that is the view which we-■have taken of the principle upon which the commissioners have proceeded in estimating the damages. It is quite true that some of the witnesses have proceeded upon an imaginary speculation, •and hence, erroneous basis; but this circumstance ought not to affect the decision of the commissioners, unless it is shown that they have adopted an erroneous principle in estimating the damages.

The respondents’ lands consist of 104 acres, located in the town of Dunkirk, adjoining on the east the city of Dunkirk. The southerly end of this tract is bounded partly by a road known as the Middle road, a much frequented thoroughfare leading into the city of Dunkirk, and by the Lake Shore & Southern Eailroad. The north part of the land abuts upon what is known as the Lake road, also a thoroughfare leading into the city of Dunkirk, which meets the Middle road within the city at an acute angle. The construction of the plaintiff’s railroad will divide diagonally this tract of 104 acres in two pieces, leaving about forty-five acres. on the south side thereof and the residue on the north side thereof. The amount of land actually taken is five .acres and six hundred and forty-one thousandths (5.641) of an acre.

Some of the witnesses for the land owners seem, in their testimony, to have estimated the defendants’ damages on the assumption that these lands might at some future day be divided into ■city lots and sold for greatly advanced prices. This circumstance seems to be the general burden of the argument of the learned counsel for the appellant, and from it it is argued that the award proceeded upon an erroneous basis, and hence should be set aside. But the report of the commissioners itself shows clearly that ■such testimony had no weight with them in so far as it appeared to be speculative. These witnesses estimated the damages variously from $16,500, which was the largest sum, to $6,400, the smallest. The witnesses called in behalf of the railway company estimated the damages variously from about $900 to $8,000.

It is clear that the commissioners have not been seriously influenced as to valuation by the testimony of the witnesses on ■either side; but rather have acted upon their own good judgment, knowledge and sense. They have twice performed the duty imposed by the statute personally to examine the property which was proposed to be taken. (2 E. S., 7th ed., 1551, § 16.) Before hearing any of the testimony they visited the locus in quo, and after receiving the testimony of seven witnesses on each side they again, in the light of such evidence, repaired to the premises and ■again inspected them. They seem, therefore, to have acted with great caution and discrimination, and the award which they have made cannot, we think, be said to have been founded upon an erroneous theory of damages, nor does the same appear to be excessive. Mo erroneous principle is shown to have been adopted by the commissioners in estimating the damages, a.nd consequently we find nothing in the case which would lead us to question in the least the fairness and justness of the estimates made by the commissioners. Where no erroneous methods of procedure are disclosed by the records, and no erroneous principles shown to have been adopted by the commissioners in making their award,, it is the duty of 'the appellate court, which has not had the advantage of a personal inspection of the premises, not to seek for technical errors in the admission or rejection of testimony; but. .rather to affirm the appraisal, where the commissioners have acted fairly and have exercised properly a judgment which is required of them under the statute above referred to. Matter of Buffalo & Geneva R. Co., 37 St. Rep., 343.

It follows, therefore, that the order and judgment appealed from should be affirmed.

Judgment and order appealed from affirmed, with costs.

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


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    Clara Wertheimer, Resp’t, v. Louis Schuster, President, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Associations—Expulsion op member.
    The articles of association of a land company, of which plaintiff was a member, provided that assessments should be payable within thirty days from their date, and a failure to pay the same would work a forfeiture of all previous payments and all interests in the company. Plaintiff became in arrears on an assessment, but her time to pay was extended by resolution of the company. During the time of such extension plaintiff, by her agent, tendered the amount due, but the same was refused, and thereafter she was expelled, and her rights in the company forfeited. Held, that she was entitled to be restored to membership on payment of her back assessments.
    Appeal by- the defendant, Louis Schuster, as president of the-Arthur Avenue Land Company, from a judgment entered in Brie county, March 9, 1891, on the decision of the court at special term, in favor of the plaintiff, in an action brought by her to be restored to membership in an unincorporated joint stock land company, known as The Arthur .Avenue Land Company.

      Tracy C. Becker, for app’lt; Moses Shire, for resp’t.
   Macomber, J.

The plaintiff was one of ten persons who, on the 30th day-of January, 1887, associated themselves together by written articles of agreement for the purpose of purchasing a tract of land, laying the same out into lots and improving them for sale. The articles of association contained a provision that for certain purposes assessments might be made upon the individual members of the association, and that they should be payable to-the treasurer within thirty days from the date of such assessment, and that a failure to pay the same would work a forfeiture to the company of all previous payments made thereon and all interests, in the company.

The evidence showed, and such also was the finding of the: court, that such an assessment, amounting to $1.50 per' week upon each member was ordered at a regular meeting of the association held June 21, 1888, at which meeting the plaintiff was duly represented by her authorized agent, Isaac Wertheimer. Bor more than thirty days the plaintiff failed to pay any of the assessments provided for by this resolution or ordinance, though she was notified of the passage of the same and of the penalties for a non-compliance therewith.

If this were the whole of the case, it would be apparent -that no recovery could have been had by the plaintiff. But evidence was adduced to the effect, that while the plaintiff was still in arrears for the non-payment of the assessment, the defendant, on the 4th day of October, 1888, passed a resolution extending her time for thirty days to pay such assessment, and that other resolutions of like character were passed coverihg the time of the tenders made by the plaintiff hereinafter mentioned; and that, during the period of such extension, the plaintiff, by her agent, tendered the amount due to the association, and that the defendant refused to receive the same, but, on the contrary, passed, a resolution on the day of, but after, the last tender, expelling the plaintiff and forfeiting her rights.

The learned justice has found in his 8th conclusion of fact that two tenders of the amount due from the plaintiff to such association were made, one on the 17th day of January, 1889, and the other on the 31st day of January, 1889, and that the resolution expelling the plaintiff from the association and forfeiting her shares therein was not passed until after the tender was made by the plaintiff’s agent on the 31st day of January, 1889.

If this conclusion of the trial court be correct, it would seem to be a plain proposition, that the conclusion of law adduced thereon was a necessary corollary to the fact. An examination of the testimony convinces us that this conclusion was fully sustained by direct, positive, though by no means undisputed, testimony.

The witness Shriver testified that he had known that Wertheimer had been paying for about two years upon assessments made by the company, and that he had found out that payments on the share held by the plaintiff had been neglected ; therefore, he went to see the plaintiff under information which he had received from the officers of the company that the owner of the stock would soon thereafter be turned out for such non-payment. He met the plaintiff on the street subsequently, and at another meeting of the company the name of Mrs. Wertheimer was omitted in the calling of the list, and thereupon Shriver arose and said he had got the money for the Wertheimer claim, and notified the company that he had bought it. He was informed that he had no right to do it, and the company refused to take the money. Up to this time no action had been taken expelling Mrs. Wertheimer. The plaintiff, on being informed that Shriver could not hold her interest, took other steps for her protection, and at the next meeting of the company a tender of money was made by Shriver in the name of and for the benefit of Mrs. Wertheimer. It was refused upon the ground that she was barred out

As we understand the facts of the case, both of these tenders, the one made by Shriver while he held an assignment from the plaintiff, and the other made at a subsequent meeting in behalf of the plaintiff herself, were made during the period covered by the resolution of the company, which permitted the plaintiff to pay in the amount of her unpaid assessments, and thus prevent the forfeiture which, by the terms of the articles of association, had been wrought in her case. Upon this fact, we think, that the conclusion of the trial justice in restoring the plaintiff to membership upon the payment of her back assessments was correct and should be affirmed.

An especial point is made in respect to the question of costs, it being contended by the learned counsel for the appellant that there should have been imposed as a condition of such restoration the payment of the costs of the case to the time of the trial. But we think that that question rested in the discretion of the learned justice, and we see no reason for differing from him in that particular.

It follows that the judgment appealed from should be affirmed.

Judgment appealed from affirmed, with costs.

Dwight, P. J., concurs; Lewis, J., not sitting.


author: Martin, J.

text:
    Ephraim D. Mowry, Resp’t, v. The Agricultural Insurance Co., Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Insurance (Fire)—Misrepresentations of agent.
    A contract of insurance is not defeated by a misrepresentation contained in an application prepared by the agent of an insurance company in the name of the insured, but without his authority, and upon which the company acted in issuing the policy.
    2. Same—Mortgages.
    Prior to the issuing of a policy of fire insurance the owner of the premises had given a mortgage to secure past and future indebtedness, which was known to the company’s agent. Thereafter the owner had a settlement with the mortgagee, and gave a new mortgage for the amount found to be due thereon. Held, that such second mortgage in no way increased the amount of incumbrance on the property, but at most settled the amount, and did not create such an incumbrance as rendered the policy void under the clause prohibiting an incumbrance by mortgage, etc., without the written consent of the company.
    Appeal from a judgment entered in Oswego county January 9, 1891, upon the report of a referee, for $2,689.67 damages and $468.01 costs.
    On and prior to the 14th day of March, 1879, the plaintiff was the owner of certain premises situated in the town of Richland, Oswego county, 27. Y. On that day he duly executed, acknowledged and delivered to Robert L. Ingersoll a mortgage thereon, the consideration named therein being the sum of $400. The condition of said mortgage was as follows: This grant is intended as security for the payment of any and all indebtedness or liabilities of every nature, kind or description which the said Ephraim D. Mowry has become liable to pay, or may hereafter become liable to pay or be owing to said Robert L. Ingersoll.” The mortgage also contained a provision that the mortgagor should keep the building erected, or to be erected, upon the lands insured against loss or damage by fire._ This mortgage was recorded on the 20th of March, and was intended as a continuing obligation and security as between the parties thereto.

      On the 11th of July, 1883, the plaintiff was erecting a dwelling house on the premises, which was substantially enclosed, when one Stowell, who was the duly commissioned and authorized, agent of the appellant, having power to receive proposals for insurance on farm buildings and residences, to collect premiums, consent to assignment of policies and attend to the business of his agency, in accordance with the rules and regulations of the company, with such instructions as might be given by its officers, came to the premises of the plaintiff and solicited the insurance upon the building being erected thereon. At that time the plaintiff, in answer to the question propounded to him by the defendant’s agent, “How much is the real estate encumbered?” replied in substance that there was at that time a mortgage on the premises to one Dilts for $200, and also a mortgage to one Robert L. Ingersoll to secure a running account and advances, the amount of which was unknown at that time and could not be ascertained until the plaintiff should have a settlement with Ingersoll. When said application was made, the plaintiff fairly informed the defendant’s agent of the existence of the mortgage which he had given to Ingersoll, and that it was intended as a continuing security for such past and future indebtedness as then existed or should be subsequently created
    No written application was made or signed by the plaintiff. But afterwards, and not in the presence of the plaintiff or with his knowledge, Stowell made out a written application for insurance in favor of the plaintiff to the amount of $1,000 on his unfinished building, and sent the same to the defendant. It was in the handwriting of the company’s agent, but not signed either by the plaintiff or by such agent, nor did it purport to be signed by either. This application was forwarded to the defendant’s home office by its agent Stowell, and is the, application referred to in the policy. In the application the answer to the question, “ How much is the real estate encumbered ? ” was incorrectly stated, and answered as “None.” After the defendant had received tin's application, and on the 11th of July, 1883, it issued the policy in suit, whereby, in consideration of $8.50 premium, it insured the plaintiff in the sum of $1,000 on bis dwelling house for the term of three years from the 11th of July, 1883. The premium was paid by Stowell, and by him delivered to the insurance company, and the policy was subsequently delivered to the plaintiff by the company with the name of Stowell as its agent at Pulaski, N. Y, endorsed thereon by it.
    Among others, the policy contained the following provisions: “ This policy of insurance is based upon the written application on file in the company’s office, purporting to be signed by the applicant or by his authority, and all statements contained therein, are warranties on the part of the assured. * * * If the property, whether real or personal, or any part thereof, shall be encumbered by mortgage, judgment or otherwise, it must be so represented to the company in the application or endorsed in writing upon this policy, otherwise this entire policy and every jpart thereof shall be void. * * * If the property, either real or personal, or any part thereof, shall become encumbered by mortgage, judgment or otherwise, * * * then, and in every such case, and in either of such events, this entire policy and every part thereof shall be null and void, unless the written consent of the company at the home office is obtained. * * * No agent is permitted to give the consent of the company in any other case required by the provisions of this policy, or to waive any stipulation or condition contained therein, but in all cases where the consent of the company is required by this policy, other than consent to the assignment of the policy, such consent must be obtained in writing and at the home office; and no statement made or information given by the assured prior to the issuing of this policy to any agent or solicitor of this company shall be deemed to be made to this company unless the same is reduced to writing and incorporated in the application hereinbefore mentioned or endorsed upon this policy. * * * It is a part of this contract that any person other than the assured who may have secured this insurance to be taken by this company shall be deemed to be the agent of the assured, and not of this company, under any circumstances whatever, or in any statement or transaction relating to this insurance. * * * This policy is not assignable without the written consent of the company or its agent endorsed thereon or annexed thereto, and any assignment without such consent will render the policy null and void.”
    Subsequent to the issuing of the policy and before the loss under it, Stowell, as agent of the defendant, at the request of the plaintiff, increased the amount of insurance on said building and other property, issued and delivered to the plaintiff an instrument partly written and partly printed, which was as follows:

      Secretary Agricultural Insurance Company, Watertown, N. Y:

      i (This blank is never to be given to the insured.)
    Please consent to the following entry in policy No. 952: Agency at Pulaski, N. Y.; Name, B. D. Mowry; Date of policy, July 11, 1883; Date of entry, January 23, 1884. There is added to this policy $300 on dwelling house $400 on furniture, provisions and family wearing apparel, printed books, pictures, and silver and plated ware, and sewing machine therein; $100 on organ; B. No. 1, $300; produce, $100; wagons, carriages, harnesses, cutters, robes therein, $200. N. S. Stowell, agent. Extra premium, $9.92. •
    • The extra premium of $9.92 was paid to the agen t Stowell by the plaintiff and by Stowell transmitted to the defendant. The foregoing instrument was the only evidence the plaintiff ever had of such increased insurance. It was issued to the plaintiff by Stowell with the knowledge and consent of the defendant and for the purpose of increasing the amount of such insurance. It was in the handwriting and signed by Stowell as such agent. Stowell subsequently and after the fire assumed to cancel a portion of said increased insurance by drawing a pen or pencil through the following words and figures contained in the paper. evidencing such increased insurance: “B. No. 1, $300; produce, $100; wagons, carriages, harnesses, cutters, robes therein, $200.”
    On or about the 21st day of August, 1884, the plaintiff had an accounting and settlement with said Ingersoll for the matters of deal included in and intended to be secured by said mortgage, which included transactions between the parties occurring after as well as before its execution and delivery. Upon such accounting there was found to be due Ingersoll the sum of $570. The plaintiff thereupon and on the 21st of August, 1884, executed and delivered to Ingersoll his bond in the penal sum of $1,140, conditioned to pay the sum of $570 in the manner therein mentioned,.and he and his then wife Polly S. Mowry executed and delivered to Ingersoll a mortgage upon the same premises described in the mortgage formerly given, conditioned for the payment of the sum of $570, as follows: “ Five hundred and seventy dollars to be paid on the first day of December next, with interest, or at least three hundred dollars of it and interest, and the balance in one year from the date hereof.” This mortgage was recorded in the clerk’s office of Oswego county on the 26th of August, 1884. Both the bond and mortgage contained the usual insurance clause and were at the time of the trial wholly unpaid. Intermediate the execution and delivery of the mortgage first mentioned and the execution and delivery of the bond and second mortgage Helen II. Mowry, the plaintiff’s wife, who joined in the first mortgage, died, and plaintiff intermarried wit'll, Polly S. Mowry.
    The appellant had no notice of the execution and delivery of the bond and mortgage last given, and gave no consent thereto as provided in its policy. The plaintiff gave no notice thereof to the appellant, but did notify the agent Stowell that he intended to give a mortgage on the premises to Ingersoll and desired him to notify the company when the mortgage was placed thereon and obtain its consent thereto. The agent directed the plaintiff to bring or send him the policy so that he might send it to the company to have the necessary consent endorsed, but the plaintiff neglected to send it, and no consent, written or otherwise, was ever given or endorsed upon the policy.
    On or about the 21st oi August, 1884, the appellant, through its agent Stowell, by an instrument in writing dated on that day and signed by him, consented to the $200 mortgage with loss, if any, payable to Frank Dilts as his interest might appear. On the 18th of October, 1884, a fire occurred by which the property insured was substantially destroyed, without fault on the part of the plaintiff. The value of the dwelling house was the sum of $2,000, and the personal property so destroyed the sum of $773.25. Due notice of loss and proofs thereof were furnished to the defendant by the plaintiff, which were satisfactory. No question was made as to the sufficiency of the plaintiff’s notice or proofs of loss.
    The foregoing facts were found by the referee, who held as matters of law:

      That the plaintiff was not bound by the errors, omissions or misstatements contained in the unsigned application forwarded to the appellant by its agent; that all that was done by Stoweli in relation to said policy was as the agent of the appellant and not for the plaintiff, and that any provisions in the policy to the contrary were waived; that the plaintiff was not bound by any of the stipulations or agreements contained in such application, but that the policy was based upon the oral application by plaintiff to the agent, which contained ample notice of the existence of the first mortgage, and that the company had, by issuing the policy, in fact consented to and waived the written endorsement thereof upon the policy; that the defendant was legally bound by the oral application and the statements then made, and the policy issued thereon was valid; that the knowledge of the agent was imputable to the company, and it was bound thereby; that the company having such knowledge of the statements made by the plaintiff on application for such policy was estopped after the fire from setting up the existence of either the first or second mortgage as forfeiture of the policy to avoid payment of the plaintiff’s loss; that the mortgage first mentioned was given as a continuing security for the payment of all liabilities and debts then existing, or which might arise between the parties, and the second mortgage was given after a settlement between the parties of their accounts which were secured to be paid by the first; that the giving of the second mortgage superseded the first, and was a continuation thereof given to secure the same indebtedness, and that in contemplation of law the first and second mortgages were identical ; that the second mortgage did not further encumber or create any new lien or encumbrance on the property insured after the issuing of the policy; that the plaintiff was entitled to recover the amount of the policy and interest.
    The referee directed judgment against the appellant for the amount insured by its policy.

      A. H. Sawyer, for app’lt; N. B. Smith, for resp’t.
   Martin, J.

— The facts as found by the referee were fully sustained by the evidence, and the only question presented is, whether his conclusions of law were justified by the facts as found.

As the case now stands, and as it was presented on the trial, the only real controversy between the parties is, whether the policy in suit was void because of the existence of the mortgages given by the plaintiff to Robert L. Ingersoll.

That the plaintiff had, before the policy was issued, executed and delivered to Ingersoll a mortgage as security for future as well ns present indebtedness, was clearly shown by the mortgage, which was recorded and was undisputed.

That such a mortgage stands as security for the liabilities of the mortgagor, whether existing when it was given or created subsequently, seems to be well settled, and where a mortgage is given as security for future advances, and it is so stated therein, the sum named as the consideration is of no importance. Robinson v. Will iams, 22 N. Y., 380; Miller v. Lockwood, 32 id., 293 ; Brown v. Kiefer, 71 id., 610.

Therefore, when the policy in suit was issued, Ingersoll had a mortgage that was a valid encumbrance upon the property insured, not only for any indebtedness that then existed, but for such future indebtedness to Ingersoll as might thereafter be incurred by the plaintiff. The appellant’s agent was fully informed of the existence of this encumbrance, and of its nature, extent and purpose. Possessing such information he forwarded to the appellant an application for the policy in suit, in which he stated that there were no encumbrances upon the property. The application was in the handwriting of the company’s agent, which must have been known to its officers, and did not purport to be signed by anyone. Upon this unsigned application the company issued the policy in suit

It is now claimed by the company that the existence of that encumbrance when the policy was issued rendered it void under the conditions contained therein, and that the plaintiff should not recover thereon. That under the conditions of the policy it would have been void by reason of the existence of that mortgage if the plaintiff had made the written application introduced in evidence in this case, or if he had not informed the company’s agent of the existence of such mortgage, there can be but little doubt. But that was not the case. Here there was no written application by the plaintiff. It was made by the defendant's agent. It was incorrect, and made by the agent with a full knowledge of the facts. It would seem that, under such circumstances, the appellant could not justly claim that its policy should be avoided because, the encumbrance was not stated in the application or endorsed on its policy.

A contract of insurance is not defeated by a misrepresentation contained in an application prepared by the agent of an insurance company in the name of the insured, but without his authority, and upon which the company acted in issuing the policy. Benninghoff v. Agricultural Ins. Co., 93 N. Y., 496; Sprague v. Holland Purchase Ins. Co., 69 id., 128; Vilas v. N. Y. Central Ins. Co., 72 id., 590; Ames v. N. Y. Union Ins. Co., 14 id., 253. So where an agent authorized to fill out an application in the name of the assured misstates the information given by the assured, and thereby misleads the company, the error of the agent cannot be imputed to the assured. Such misstatements as between the parties are to be regarded as those of the agent and not of the assured, and, consequently, would not avoid the policy. Rowley v. Empire Ins. Co., 36 N. Y., 550; Bennett v. Agricultural Ins. Co., 106 id., 243; 8 St. Rep., 693.

Another principle which seems to be established by the authorities in this state is,' that an insurance company cannot insist upon a condition declaring the contract to be void if a certain fact or situation exists not represented to the company in the application or endorsed on the policy, where the company or its authorized agent at the time it was made knew of the fact or situation which is relied upon to defeat the contract. Van Schoick v. Niagara F. Ins. Co., 68 N. Y., 434; Richmond v Niagara F. Ins. Co., 79 id., 230; Short v. Home Ins. Co., 90 id., 16. The doctrine of these cases is recognized in Landers v. Cooper, 115 N. Y., 279, 286; 26 St. Rep., 272, and the principles are there stated by Judge Andrews in substantially the language here employed.

The evidence which discloses that the plaintiff neither made nor authorized any written application for the policy in suit; that the application was made by and was in the handwriting of the defendant’s agent; that when the policy was issued the company endorsed thereon the name of Stowell as its agent, thereby representing and assuring the plaintiff that Stowell was authorized to represent the company in matters pertaining to the policy, was, we think, sufficient to justify the referee in holding that the knowledge of the agent was imputable to the company. Partridge v. Commercial F. Ins. Co., 17 Hun, 95; Broadhead v. Lycoming Ins. Co., 14 id., 452; Chase v. People's F. Ins. Co., id., 456; Vanderhoef v. Agricultural Ins. Co., 46 id., 333; 12 St. Rep., 341; Smith v. Home Ins. Co., 47 Hun, 30; 14 St Rep., 106; Van Schoick v. Niagara F. Ins. Co., 68 N. Y., 434; Sprague v. Holland Purchase Ins. Co., 69 id., 128; Whited v. Germania F. Ins. Co., 76 id., 415.

An application of the principles of law stated to the facts in this case would seem to justify the referee’s holding that the existence of the first mortgage did not render the policy void.

This leads us to consider the effect upon the policy of the second mortgage given by the plaintiff to Ingersoll. In examining this question it should be remembered that the mortgage first given was a continuing security intended to cover all the indebtedness that might exist between the parties, so that it in fact covered all the indebtedness which was secured by the second mortgage. It is true the plaintiff’s second wife joined in this mortgagé, but her right of dower was subject to the first mortgage, so that there was no actual increase of security, and consequently no added encumbrance.

Although the giving of the second mortgage in no way increased the encumbrance upon the property insured, still the appellant contends that it rendered the policy void. To sustain that contention, it relies upon the condition in the policy which provides that if the property * * * shall become encumbered by mortgage, judgment or otherwise, * * * this entire policy and every part thereof shall be null and void, unless the written consent of the company at the home office be obtained.” Thus the question is presented whether the giving of the second mortgage was an encumbrance of the property insured within the intent and meaning of that provision. As we have already seen, it in no way increased the amount of the encumbrance thereon. It at most only settled the amount. The manifest purpose of that condition in the policy was to prevent the assured from encumbering the property, thereby reducing his interest therein, and thus increasing the hazard. As there was in this case no increase or addition to the encumbrance, the interest of the insured in the property was in no way reduced by this second mortgage, and was not within the purpose of the provision.

We are of the opinion that under the circumstances developed by the evidence, and upon the facts as found by the referee, it was properly held that the execution and delivery of the second mortgage to IngersoII did not create such an encumbrance upon the property insured as rendered the policy void, although the written consent of the company was not obtained. Russell v. Cedar Rapids Ins. Co., 71 Iowa, 69. If these conclusions are correct, it follows that the judgment should be affirmed, as we have examined all the exceptions to which our attention has been called by the appellant, but have found none that would justify a reversal of the judgment

Judgment affirmed, with costs.

Her win, J., concurs.


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    Lucinda Woodard, App’lt, v. William J. Foster, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Evidence—Parol to vary written contract.
    Under the exception to the general rule prohibiting paroi evidence to contradict or vary a written instrument which permits such evidence when the contract is only partly reduced to writing, paroi evidence is admissible only where it is consistent with the written instrument, and not where it contradicts or varies it.

      % Same—Deed.
    Parol evidence is not admissible under such exception to the rule to show that at the time of giving a deed it was agreed that the grantor should have the use of the premises during in's life and pay1 taxes and keep the premises in repair.
    Appeal from a judgment entered in Cortland county, June 2, 1889, on the report of a referee.

      Jerome Squires and W. C. Cromlie, for app'lt,; George JB, Jones and Riley Champlain, for resp’t.
   Martin, J.

An important, if not the controlling, question in this case is, whether the referee properly admitted paroi evidence to show that before, and at the time of the delivery of the deed from the defendant to plaintiff’s husband, it was agreed by the parties that the defendant should retain the use of the premises during his life. Although this question is controlled by the rules of evidence yet, its solution involves a substantial determination, of the controversy between the parties

The rule invoiced by the appellant is that making paroi evidence inadmissible to contradict or vary the terms of a written instrument. The existence of this rule cannot be disputed, but there are exceptions to it, and it is not always easy to determine whether the evidence is within the rule or falls under some of the -exceptions.

In the case before us the plaintiff’s action was to recover the possession of certain real property to which she claimed title under a deed from her husband, to whom the defendant had conveyed the premises in fee. The defense interposed and which prevailed was, that previous to and when the deed was executed and delivered, as a part consideratioú therefor, it was verbally •agreed between the grantor and grantee that the former should have the use of the premises as long as he lived, and should pay the taxes thereon and keep them in repair, which hé' did up to-the time of the trial.

The obvious result of the evidence introduced to establish this claimed defense, if given effect, was to reduce the title conveyed by the. defendant’s deed and to carve out of an absolute-title in fee simple a life estate in the grantor. Thus the question is presented whether paroi evidence was admissible for tliat purpose. That it was inadmissible under the general rule prohibiting the admission of paroi contemporaneous evidence to contradict or vary the terms of a valid written instrument, there can be-no doubt. It is, however, contended that the evidence was admissible under an exception to the rule which permits paroi evidence when the original contract is verbal and entire and a. part only is reduced to writing. The existence of this exception must be recognized, but evidence is not admissible under it which contradicts or varies the written instrument; to be admissible it must be consistent with it. Chapin v. Dobson, 78 N. Y., 74; Thomas v. Scutt, 127 id., 133, 138; 38 St. Rep., 692. Therefore, the evidence was not admissible under that exception, because it. was not consistent with, but in contradiction of, the deed.

There is no claim that the deed was to be given full effect, and the plaintiff's grantor to execute to the defendant a valid lease. The evidence shows that that was not contemplated.

We are of the opinion that the evidence admitted fell within the condemnation of the general rule excluding paroi evidence-when in effect it would change or destroy the agreement between the parties which they had reduced to writing. This conclusion seems to be sustained by the authorities. Wilson v. Dean, 74 N. Y., 531; Eighmie v. Taylor, 98 id., 288; Snowden v. Guion, 101 id., 458, 462 ; Long v. The Millerton Iron Co., id., 638; 1 St. Rep., 38; Corse v. Peck, 102 N. Y., 513; 2 St. Rep., 493; Landers v. Cooper, 115 N. Y., 279; 26 St. Rep., 272; Gordon v. Niemann, 118 N.Y., 152; 28 St. Rep., 616; Engelhorn v. Reitlinger, 122 N.Y., 76; 33 St. Rep., 275; Read v. The Bank of Attica, 124 N. Y., 671; 36 St. Rep., 894; Thomas v. Scutt, 127 N. Y., 138; 38 St. Rep., 692.

The case of Hutchins v. Hutchins, 98 N. Y., 56, was very similar to this in many respects. In that case it was held that a: reservation of a life estate to the grantor could not be proved by paroi when there was a deed in fee.

The authorities cited are, we think, decisive of the question, and require that the judgment should be reversed.

Judgment reversed on the exceptions and a new trial granted,, with costs to abide the event

Hardest, P. J., and Merwin, J., concur.


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    Andrewette La Tourette el al., Resp’ts, v. Angeline Decker, Impl'd, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Partition—Parties.
    The seizin oí one co-tenant, unless proved to be adverse, is the seizin of.' all, and either may institute proceedings for partition although not personally in possession.

      2. Same—Adverse possession.
    One of the plaintiffs testified that the premises were occupied by defendant’s husband; that he had had charge of them since the ancestor's death. Defendant testified that she had had charge since her father’s death and was in possession. Held, that the referee properly refused to find that she was in exclusive possession.
    S. Mortgage—Assignment.
    A mortgage on the premises was given in 1833 to one B. In 1852 one H. made a written assignment thereof to defendant, executing it as administrator of B. Held, that in the absence of proof of the death of E., or that H. was her administrator, the referee was justified in refusing to find that defendant was the owner of the mortgage.
    Appeal from, a judgment entered in Broome county January 27, 1890, on the report of a referee.
    The action was to set aside certain deeds as void, and to partition the real estate described in the complaint. The appellant claimed title by deed to the premises first mentioned therein. She also claimed to hold a mortgage upon the same. The referee held that the deed under which the appellant claimed was void, because the grantor was of unsound mind at the time it was given, and refused to find that the appellant was the owner of a mortgage on the premises. He directed judgment, adjudging that the premises be sold, and that the proceeds thereof, after paying certain debts, be divided between the parties according to their respective interests as found by him.

      3. Mach Smith, for app’lt; E. C. Moody, for resp’ts.
   Martin, J.

The appellant seeks a reversal of the judgment herein only so far as it relates to the premises first described in the complaint. The grounds upon which it is sought are :

1. That when the action was commenced she had a hostile title, and was in actual possession claiming the lands adversely.

2. That she held a mortgage on the premises, and her possession ought not to be disturbed until ‘the mortgage is paid, or its payment provided for.

The proof in this case is such as to render it unnecessary for us to determine whether, since the adoption of the Code of Civil Procedure, which provides for the trial of title in such actions (§ 1543), a subsisting adverse possession is a bar to an action for partition.

The only evidence contained in the record that bears upon this question is that of the appellant and one of the respondents. The ■latter testified: “ The river place (being the premises in question) is now occupied by James Decker, husband of Angeline; he has control of it; has had possession of it since April, 1884; lie has occupied it since my father’s death.” The appellant testified : “ I have had charge of it since my father’s death ; "x" * * I am now in possession oE it.” The referee refused to find that she was in exclusive possession of the land in question. Under this evidence, it cannot, we think, be held that there was a subsisting adverse possession in the appellant. The seizin of one co-tenant, unless proved to be adverse, is the seizin of all, and either may institute proceedings for partition, although not personally in possession. The possession of one tenant in common, is presumed to’ be that of all. (Hitchcock v. Skinner, Hoff, Ch., 21; Beebee v. Griffing, 14 N. Y., 235; Florence v. Hopkins, 46 id., 186; Culver v. Rhodes, 87 id., 348; Hulse v. Hulse, 5 N. Y. Supp., 747; 23 St. Rep., 123.) Hence the judgment should not be reversed on the ground first stated.

This leaves for consideration the question whether the appellant was a mortgagee in possession. The only proof that tended to-show that she stood in the relation of a mortgagee of the premises was that a mortgage thereon was given by William La Tourette to Elizabeth La Tourette in 1833. In 1852, one Henry La Tourette made a written assignment of that mortgage to the appellant, and to his signature thereto he added the words, “Administrator of the estate of Elizabeth La Tourette.” There was no-proof whatever either of the death of Elizabeth La Tourette, or that Henry La Tourette was the administrator of her estate. Upon the evidence as it stood, we think the referee was justified in refusing to find that the appellant was the owner of that mortgage. Hot having been shown to be the owner of a mortgage upon the premises, she could not be treated as a mortgagee in possession.

We find no sufficient reason to disturb the judgment, and consequently think it should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


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    Patrick Aherin, Resp’t, v. John J. O’Brien, App’lt.

      (Supreme Court, General Term, Fourth, Department,

      Filed May 13, 1892.)

    Wabbahty—Damages.
    The warranty on the sale of a horse was that he was five years old, would go ^ood single or double and was a good worker. Held, that plaintiff was entitled to recover only for such defects as affected the value of' the horse as a good worker; that evidence as to the difference between his-value when blind in both eyes and if he was sound and all right was not within the rule of damages applicable to the case, and that as he failed to furnish any proper proof of damage" he could only recover nominal, damages.
    Appeal from a judgment of the Onondaga county court,, affirming a judgment rendered in a justice’s court.

      George W. O'Brien, for app’lt; Wandell & Magee, for resp’t.
   Martin, J.

The action-was for breach of warranty on the sale of a horse. The only representation of fact relied upon by the plaintiff was, “ That the horse was five years old, would go good single or double and was a good worker.” That the horse was-not a good worker was the only breach of warranty proved.

The plaintiff was entitled to recover the difference between the-value of the horse if he had been a good worker and his value as he was in that respect. In other words, he was entitled to recover only for such defects as affected the value of the horse as a good worker, and only to the extent that they reduced his value as-such.

All the evidence given upon the question of damages was, that the horse blind in both eyes was worth sixty dollars, and that if he had been sound and all right he would have been worth from one hundred and thirty to one hundred and forty dollars. This-evidence was not within the rule of damages applicable in thiscáse, and was wholly insufficient to justify the judgment awarded. Indeed, there was no evidence disclosing the amount of damage sustained by the plaintiff, nor from which such damage could b& ascertained. The plaintiff having failed to furnish any proper proof of damages, could recover at most only nominal damages. Fales v. McKeon, 2 Hilt., 53; O'Brien v. Jones, 91 N. Y., 193.

We think the justice erred in awarding the plaintiff judgment for substantial damages, and that the county court should have reversed the judgment.

Judgment of the county court and of the justice’s court reversed, with costs.

Hardin, P. J., and Merwin, J., concur.


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    Theodore Butterfield et al., Ex’rs, Resp’ts, v. Henry E. Oppenheimer et al., App’lts.

      (Supreme Court. General Term, Fourth Department,

      Filed May 13, 1892.)

    Trespass—Right of sheriff or coroner to break open vault.
    While a sheriff was in possession of a store and goods under a levy, a coroner who had a requisition for some of the goods demanded the same, and broke open and injured a vault on the premises in his search for them. Held, that the sheriff was entitled to a reasonable opportunity after the demand to open the vault before the coroner was justified in breaking-into it, even if it contained a portion of the goods mentioned in the requisition, and whether the goods were in the vault and whether the act of breaking the vault was unnecessary and wrongful are questions of fact for the jury, and their determination on conflicting evidence should not be-disturbed.
    Appeal from a judgment in favor of respondents’ testator against the defendants for $813.57, entered in Oneida county, January 31, 1891, and from an order denying the defendants'"' motion for a new trial made on the minutes of the trial court

      W. T. Bunmore, for app’lts; William Townsend, for resp’ts.
   Martin, J.

This action was commenced- by the respondents’ testator, and prosecuted to judgment. He subsequently died and the respondents were substituted as parties.

The testator was the owner of a store at 165 Genesee street, Utica, if. Y. In September, 1887, he leased it to Louis Wine-burgh for the term of three years from May 1, 1888. During the continuance of that term, and on or about June 26, 1890, while Wineburgh was in possession of the store, the sheriff of Oneida, county, by virtue of certain executions against Wineburgh, levied upon all of his goods contained therein, consisting of watches,, clocks, jewelry and other goods usually kept in jewelers’ stores^ and took immediate possession of both goods and store.

Subsequently, and about July 1, 1890, the defendant Oppenheimer commenced an action against the sheriff and Wineburgh to recover possession of a portion of the goods levied upon. The papers in that action, including a requisition for certain goods •described therein, were placed for execution in the hands of the defendant Jones, a coroner of the county of Oneida. In executing the requisition, the coroner, with the aid and under the direction of the other defendants, broke into and materially injured a vault which was built in and formed a part of such store. It was to recover damages for that injury that this action was brought.

The plaintiff’s claimed right to recover in this action was based not only upon his ownership of the store, but also upon a transfer to him by Wineburgh of any claim or interest he had in the damages caused by the injury to the vault. So that the plaintiff possessed the interest of both landlord and tenant, and therefore there can be no doubt of his right to any recovery for damages to the vault properly obtained. •

The appellants sought to justify the injury on the ground that it resulted from a necessary attempt on the part of the coroner to ■enter the vault for the purpose of securing the property mentioned in the requisition. That, after proper demand, the coroner had the right to open the vault if it was necessary to obtain any of the property included in the requisition seems to be conceded by the parties.

On the trial the appellants claimed, and gave evidence tending to show, the existence of such necessity, while the evidence of the plaintiff tended - to show there was none. The respondents contend that no such necessity existed or was shown ; first, because there was no sufficient evidence that any of the property mentioned in the requisition was in the vault; and, second, because the sheriff did not refuse to open the vault, or procure it to be •opened, as soon as it could be reasonably done. Both of these' propositions are disputed by. the appellants. They were submitted to the jury, and it found for the plaintiff.

We have carefully examined the evidence contained in the appeal book, and think it was sufficient to justify the court in submitting the case to the jury, and the jury in finding that the sheriff did not refuse to permit the coroner to enter the vault, but that owing to his ignorance of the combination upon which the locks were set the sheriff was unable to open it at once, and that he would have opened it within a reasonable time had it been allowed him for that purpose.

The sheriff being in the possession of the store and goods was, after demand, entitled to a reasonable opportunity to open this vault before the defendants were justified in breaking into it, ■even if. it contained a portion of the goods mentioned in the requisition. Under the evidence in this case the questions whether such an opportunity was given, whether any of the goods mentioned in the requisition were in the vault, and whether the acts of the defendants in breaking into the vault were unnecessary and wrongful, were questions of fact, it is true there was a severe conflict in the evidence bearing upon those questions, but they were fairly submitted to the jury, and we think its determination, should not be disturbed.

We have examined all the exceptions to which our attention has been called by the appellants' brief, but have found none that would justify a reversal, or that require special discussion

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.