author: Merwin, J.

text:
    In the Matter of Proving the Last Will and Testament of Elizabeth W. Clark, Deceased; Frank A. Place, Petitioner and App’lt; Ezra Clark et. al., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1894.)

    Will—Probate.
    Since the amendment of 1888 to Section 2620 of the Code, a will maybe admitted to probate without taking the testimony'of an absent subscribing witness, unless asked for by one of the parties.
    Appeal from the decree of the Surrogate’s Court of Oswego county refusing to admit to probate the will of Elizabeth W. Clark, deceased.

      D. P. Morehouse, for app’lt; O. N. Bulger, for resp’t.
   Merwin, J.

In this case it appeared that one of the subscribing witnesses was absent from the state, but that her place of residence out of the state was known and her evidence could be taken by commission. It was not so taken. Upon the evidence in fact given, it was found by the surrogate that the will was duly executed in the manner required by law and that the testatrix at the time of executing it was in all respects competent tq make a will and not in under any restraint. Probate was however refused “ upon the sole ground that the court has -no power or jurisdiction to admit said will to probate without causing the testimony of said absent witness to be taken by commission out of the state as required by Sections 2619 and 2620, Code of Civil Procedure.

The provisions of Section 2620, as it stood prior to 1888, would probably justify the conclusion of the Surrogate that it was necessary to obtain the evidence of the absent witness. That section, however, was amended by Chap. 508 of the Laws of 1888, and, as it now stands, it does not require the evidence of the absent witness to be taken, unless it is asked for by one of the parties and there was in fact no opposition to the proof of the will. We think that the surrogate erred in refusing to admit the will to probate.

It follows that the decree should be reversed and the proceedings remitted to the surrogate’s court with directions to admit the will to probate. Matter of Will of Martin, 98 N. Y. 193.

Hardin, P. J., and Martin, J., concur.

Decree reversed with costs to the appellant payable out ■ of the estate and proceedings remitted to the surrogate’s court with directions to admit the will to probate.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    Frank Place et al., App’lts, v. Miles E. Burlingame et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1894.)

    W ILL—COKSTIIUOTION.
    The words in a will, “ or rather the use tlierof during the period that she may live and remain my widow,” limit her to the uso oí the property during the period of her life, subject to the sooner determination if she ceases to he his widow.
    Appeal from a judgment entered in Cortland county after a trial at the circuit where a verdict was directed for the defendants in an action to recover possession of certain lands described in the complaint situated in the town of Willett. On the 8th of October, 1860, Henry T. Jones executed his last will and testament which was admitted to probate, and contained the following clause: “ I give and bequeath to my wife, Johanna Jones, my real estate in the town of Willett and. appurtenances thereunto belonging, together with all my household furniture, or rather the use thereof during the period that she may live and remain my widow, her furniture, bedding, &c., that she had of her own when I married her is to be at her disposal. I also give to her my cow free and clear. Also, further, I give to her one hundred dollars, said hundred dollars to be paid to her bjr my executors herinafter named within two years after my decease, and the other property above named she is to have at my decease.’’ The will also contained specific legacies of $100; and also, “ Fourthly : I give and bequeath one-half of all the rest, residue and remainder of my estate, both real and personal, of every name and nature, to be divided among the children of my son, Benjamin Jones, equal, and the other half I give and bequeath and to be divided equal among the the children of my daughter, Julia Ami Place.” The testator's second marriage, to Johanna Huling, took place on the 5th day of October, 1856, she then being a widow having children, the issue of her former marriage. On the 7th day of November, 1856, thirty-three days after the marriage, the testator executed and acknowledged a conveyance to his then wife, Jolmmia, wherein and whereby he quit-claimed unto lier the premises described in the complaint, which conveyance contained the following language: “ To have and to hold the said released premises with the appurtenances thereunto belonging unto the said J. Hannah E. Jones, for and during her natural life, or for ami as long as she shall remain the widow of the said Henry T. Jones in case of liis death. And also the said Henry T. Jones sells, assigns and hereby sets over to the said J. Hannah E. Jones all the household furniture to be at her disposal and use, so long as she shall remain the wife or widow of the said Henry T. Jones and no longer.” That instrument was acknowledged upon a recited consideration of §1,500,and was recorded on the 17th day of November, 1857. The testator died on the 30th day of October, 1860, and his widow, Johanna Jones, died on the 22ud day of October, 1888, intestate. The plaintiffs arc grandchildren of the testator, being all the children of his daughter, Julia Ann Place, ami his son, Benjamin Jones, and the only persons who would take as residuary legatees under the will of the testator. The defendant, Amy Burlingame, was a daughter of Johanna, and the defendant, Miles E. Burlingame, was the husband of the daughter. At the close of the evidence the plaintiff asked “ to go to the jury upon the question as to what was the intention and purpose of the testator in the devise in question upon all the facts and circumstances of the case.” Thereupon the court remarked: “I will deny the motion to go to the jury,” and to that ruling the plaintiff took an exception. Thereupon the court observed, vix. : “I hold under that will the widow took the fee of the Willett property, and that results in a nonsuit against the plaintiffs. Nonsuit granted.” To that ruling the plaintiff excepted. Thereupon the plaintiffs’ counsel took an exception to the ruling of the court, 1‘ That it was the intention of the testator to make an absolute gift to his wife; ” in response thereto the court observed, “ I hold that he did do it; ” thereupon the plaintiff took an exception. The defendant’s motion for a nonsuit was granted and pursuant to the direction of the court the jury rendered a v'erdiot for the defendants.

      B. T. Wright, for app’lts; Kellogg & Van Eoesen and Eugene Burlingame, for resp’ts.
   Hardin, P. J.

Interpretation of the testator’s will and a declaration of his intent, as evidenced by the language of the will must be had to solve the question presented by the appeal. Respondents’ learned counsel calls our attention to a provision of the revised statutes which is as follows: “Every grant or devise of real estate or any interest therein shall pass all the interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear by express terms or be necessarily implied.” Revised Statutes, 8th ed., p. 2461, § 1; and under that statute and the language of the will contends that the testator devised in fee to the widow the house and lot in question, and'calls our attention to cases which have interpreted the statute and in which it has been declared that all the interest of the testator passed under language used unless it appear by express terms, or it was necessarily implied that a less estate was intended to pass. Among the cases referred to are Roseboom v. Roseboom, 81 N. Y., 356; Campbell v. Beaumont, 91 N. Y., 464; Crain v. Wright, 114 N. Y., 307; 23 St. Rep., 245; Schult v. Moll, 132 N. Y., 122; 43 St. Rep., 484. The phraseology found in the cases referred to differs from the phraseology found in the will before us. We think the testator intended to devise only a life estate to his wife, when he used the words, “I give and bequeath to my wife, Johanna Jones, my real estate in the town of Willett and appurtenances thereunto belonging, together with all my household furniture, or rather the use thereof, during the period that she may live and remain my widow, her furniture, bedding, etc., that she had of her own when I married her is to be at her disposal.” We think the words, “ or rather the use thereof during the period that she may live and remain my widow,” relate to and control all the antecedent language used in connection with the devise to the wife, and limited her to the use of the property during the period of her life, subject to a sooner determination if she had ceased to be his widow. Construing the words as relating to the real estate, as well as to the household furniture, they were apt and appropriate to cut down what otherwise might be a devise to her in fee of the real estate. We think the words, “ I also give to her my cow free and clear,” do not aid the contention of the respondent; on the contrary the words indicate that the testator, by the use thereof, understood what language to use when making an absolute bequest. The contention of the appellant is somewhat aided by the clause found in the fourth provision of the will, wherein the testator gives one-half of all “ the rest, residue and remainder of my estate, both real and personal of every name and nature,” to his grandchildren. We are therefore of the opinion that upon the close of the life of the widow, her interest in the real estate ceased and the same passed, under the residuary clause, to the grandchildren, who are the plaintiffs in this action. Areson v. Areson, 3 Denio, 458; Van Allen v. Mooers, 5 Barb., 110; Thomas v. Snyder, 43 Hun, 14; 6 St. Rep., 592; Crain v. Wright, 114 N. Y., 307; 23 St. Rep., 245; Matter of McClure, 136 N. Y., 238; 49 St. Rep., 203; Tallman v. Tallman, 23 N. Y. Supp., 734; Dew v. Keuhn, 64 Wis., 293.

We have not overlooked the argument of the respondent based upon the circumstance that in October, 1856, the testator conveyed a limited interest- in the premises in question to his wife. The language then used is quite indicative of an intent on his part to vest her with only the use of the premises during her widowhood or life, and in answer to the argument that is made that it was his intention by the use of the language found in his will to give her a greater interest in the real estate, it may be observed that he was presumed to know the law that at that period of time a conveyance from husband to wife direct was not valid at law. Johnson v. Rogers, 35 Hun, 267; Graham v. Van Wyck, 14 Barb., 531; Winans et al. v. Peebles et al., 32 N. Y., 423. It is not unreasonable to suppose that he used the language in the will relating to the real estate to confirm to her a life use of the real estate.

We think the construction of the will which obtained at the circuit ought not to remain.

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

Martin, J., and Merwin, J., concur.


text:
    The City of Ithaca, App’lt, v. Frank C. Cornell, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1894.)

    1. Taxes—Action.
    An action will lie to recover a tax levied by the Common Council of the City of Ithaca against a taxable inhabitant.
    2. Same—Pleading.
    The complaint, in this case, was held to state facts sufficient to constitute a cause of action for such purpose.
    Appeal from an interlocutory judgment entered in Tompkins county, sustaining the defendant’s demurrer to plaintiff’s complaint. Action to recover a tax of $322,00 assessed by the common council of the plaintiff against the defendant.

      If. JJ. Tompkins, for app’lt; Mynderse Van Chef, for resp’t.
   Hardin, P. J.

In Chapter 212 of the Laws of 1888 is the act to incorporate the City of Ithaca, and in title 4 and § 4 is a provision that assessors shall return to the common council, and file with the clerk a tax roll and assessment of each tax directed to be levied upon the taxable inhabitants and property of said city; and in title 5, § 1 power is given to the common council to raise not exceeding $30,000 “ by general tax upon the taxable inhabitants of said city on the property therein liable to taxation; ” and in § 2 power is given to raise a further sum to pay interest on bonds; and in § 3 it is provided as follows: “ The tax so directed to be raised shall be assessed upon all the taxable real and personal property in the city, except as stated in § 2, according to the valuation of the same in the assessment roll of the current year filed by the assessor or assessors, after said roll shall be corrected ; ” and in § 4 it is provided “ the tax roll, when perfected, shall be delivered by the mayor or common council to the collector, with a warrant * * * commanding him to receive, levy and collect the sums in the roll specified as assessed against the persons or property therein mentioned or described. * * * ” Section 5 provides as follows: “ All taxes and assessments that shall remain unpaid for three months after the date of the warrant authorizing the collection thereof shall bear interest at twelve per cent, per annum from the date of the warrant, and such tax and interest may be sued for and recovered by the city against any person liable therefor.” In § 9 of title 6 is found a provision authorizing the common council to make assessments for certain improvements, and the common council by that section is given power to collect such assessment, and it is expressly provided tliat “ all the provisions of §§ 5, 6, 7, 8, title 5 of this act, shall be in force and apply so far as the same may be applicable to all proceedings for the collection of unpaid taxes, and the right and duties of all persons concerned shall be the same as provided in said sections.” - It seems that both classes of assessments are under the supervision and control of the common council, and that, as-to both classes, there is a personal liability created by statute against the several persons so assessed.

In Torrey v. Willard, 55 Hun, 78; 28 St. Rep. 641 ; it was held that an action would lie against a party assessed to pay, and it was said: “The obligation of the citizen to pay is inferred from the authority to levy the tax; ” and in the course of the opinion delivered by Macomber, J., he said: “Whenever there is a legal obligation resting upon a party to pay, this form of action is available at common law; * * * The obligation of the citizen to pay is inferred from the authority to levy the tax. Litchfield v. McComber, 42 Barb. 288.” In the complaint it is alleged that the common council on the 15th of July, 1889, “duly assessed ” the defendant for the sum $322.00. It is also alleged that a notice of the same was given to him and that the tax was thereafter “duly confirmed by said common council at a meeting of the common council held at their chambers on the 5th day of August, 1891. All as provided by the charter of the city of Ithaca. And it is further alleged that the tax assessed against the defendant was not paid to the treasurer of the city within twenty days after its confirmation, and that on the 2d of September, 1891, pursuant to a resolution, the common council issued a warrant to the collector of taxes, directing him to collect the tax aforesaid of the defendant, and that the tax warrant was dated on the 2d of September, 1891, and was duly delivered by the plaintiff to the tax-collector. It was also alleged “ that more than three months passed since the date of said warrant for the collection of said taxes, and said tax remains wholly unpaid, and there is due from the defendant the sum of three hundred and twenty-two dollars ($322.00) with interest thereon at 12 per cent, per annum since the 2d day of September, 1891, as provided by section 5 of title 5 of the charter of the city of Ithaca.” By the demurrer all the allegations of the complaint are admitted; and reading those allegations—accepting all the facts as stated in the complaint as true, and applying the provisions of the plaintiff’s charter to the facts, a cause of action is established against the defendant. And we are of the opinion that the complaint states facts sufficient to constitute a cause of action, and within a somewhat liberalized rule now existing as to pleading we think it should be held sufficient. Rock- ester Railway Co. v. Robinson, 133 N. Y. 242 ; 44 St. Rep. 872; McCorkle v. Herman, 22 St. Rep. 520; Thayer v. Gile, 42 Hun, 268 ; 5 St. Rep. 103 ; Code Civil Procedure, section 532 ; L. S. & M. S. R. R. Co. v. City of Dunkirk, 20 N. Y. Supp., 599; 48 St. Rep. 208 ; Brownell v. Town of Greenwich, 114 N. Y. 518; 24 St. Rep. 6.

If the defendant desires to have the complaint more definite and state more fully the details of the cause of action, he should seek his remedy by a motion. Laney v. Laney, 33 St. Rep. 673; Marie v. Garrison, 83 N. Y. 14.

The foregoing views lead to the conclusion that the demurrer to the complaint was improperly sustained.

Interlocutory judgment reversed with costs and demurrer overruled with costs, with leave to the defendant to answer upon payment of costs of the demurrer and of this appeal within twenty days.

Me it win and Martin, JJ.-, concur.


text:
    Joseph C. Drake, Resp’t, v. The New York, Lackawanna and Western Railway Company, App'lt.
    (Supreme Court, General Term, Fourth Department,

      Filed February, 1894.)
    Negligence—Railway Company.
    A railroad company is bound to construct its road with all necessary care and skill, so as to save, the adjacent, proprietors from any injurious consequences which might arise on account of the necessary modiiiemion of the natural surface of the ground, so far as should bo reasonably practicable.
    Appeal from a judgment entered in Chemung County upon a verdict rendered at a circuit in that county in favor of the plaintiff for $1,216 ; and also from an order made at special term denying a motion for a new trial upon a case and exceptions.

      Robert T Turner, for app’lt; Reynolds, Stanchfield & Collin, for resp’t.
   Hardin, P. J.

Plaintiff has been the owner of a farm for some twenty-four years consisting of about 180 acres situated in the town of ITorseheads, a short distance west of West Junction. Under the laws of the State of Hew York the defendant constructed its road between the city of Binghamton and the city of Buffalo, and in doing so crossed the farm of the plaintiff, having acquired the right so to do by condemnation proceedings; its road passing in a westerly direction severing his farm so that a portion thereof lies on the north side of the railroad and a portion thereof on the south side of the road. Plaintiff has recovered damages alleged to have been sustained by reason of water reaching his land on the south side of the defendant’s road. Hear the close of the trial it was held “ That there is no right of recovery, here for any damages done to the land north of the railroad,” and the question finally submitted to the jury was “whether in the exercise of reasonable diligence, they should have made a larger sluice-way through the railroad, and as to whether if they were negligent in that, that such negligence caused the injury; ’’ folio 662. In delivering to the jury the .charge the learned judge said : “ There are two propositions which the plaintiff must establish before he can recover in this action. The first proposition is: That the defendant has been guilty of negligence. And the second proposition: That such negligence has caused this injury of which the plaintiff complains.” And further on he proceeded to-say “that the canal constituted in the sense of law a water course so that this defendant owed a duty in the construction of this rpad, to provide a water-way, or water course there sufficient to carry off all the water that might reasonably be expected to flow through it. Then the first question for you to determine is, did it fulfill its duty, and did it provide a sufficient water-wav to carry off all the waters that might reasonably be expected to flow there. * * You are to consider all those facts, and to determine the single question as to whether, under the circumstances, as they existed at the time that this company built its road, they supplied a water course which was sufficient to carry off such water as might reasonably be expected to flow down through the channel of the canal, and through this water-way or sluice-way. Now, gentlemen of the jury, if you find that they provided such a course as would be sufficient to carry off the water that might reasonably be expected at that time ; then I charge you that they were not guilty of negligence, and the plaintiff cannot recover. If they have failed, however, to provide such a water course as would carry off the waters that might reasonably be expected at that time, then the plaintiff must establish another proposition, before he can recover, and that is, that such negligence on the part of the defendant has caused this injury.” After the body of the charge had been delivered, in response to a request made in behalf of the defendant, the court charged that the defendant was not “ absolutely required to furnish such a passage-way for water, but they were only held to reasonable care in providing a water-way sufficient.” ■ It is alleged in the complaint “ That at the time defendant constructed its roadbed or railway, as hereinbefore alleged through the said to.wns of Horseheads and Big Flats and the farm of this plaintiff, there existed and ran a natural watercourse or brook or creek from Sing Sing creek or the vicinity or locality of Sing Sing creek, easterly or northeasterly through the said towns mentioned and plaintiff’s said farm, which, although liable by reason of the nature of the adjoining lands or territories to sudden rises or increase of the volume of water, was, within said towns and through plaintiff's said farm confined to a certain well defined course and channel by reason of the high banks on either side thereof.” And it is alleged that prior to the construction of the defendant’s road “ the water of the said water course in times of freshet and flood, as well as in ordinary times, was confined and flowed within the banks of said stream.”

Evidence was given upon the trial tending to support the allegations of the complaint, and it justified the instructions as to the law given by the trial judge to the jury. Vernum v. Wheeler, 85 Hun, 53; Mitchell v. N. Y., L. E. & W. R. R. Co., 36 Hun, 177; Brown v. Cayuga & Susquehanna Railroad Co., 12 N. Y., 486.

In Bellinger v. N. Y. C. & H. R. R. R. Co., 23 N. Y., 42, in the course of the opinion delivered it was said that the defendant had a right to construct the road, and in doing so it was “ bound to do this with all necessary care and skill, so as to save the adjacent proprietors from any injurious consequences which might arise on account of the necessary modification of the natural surface of the ground, so far as should be reasonably practicable,” The quotations we have made from the charge delivered in this case seem to indicate that that rule was observed. See MS opinion of Merwin, J., in Mundy v. N. Y., L. E. & W. R. R. Co.; 57 St. Rep., 367, and cases therein cited.

(2.) The evidence does not indicate any affirmative act or omission of duty on the part of the state which relieves the defendant of its obligation to so use its property as not to cause injury to the plaintiff, an adjacent owner. Masterson v N. Y. C. R. R. Co., 84 N. Y. 247.

(3.) The evidence relating to the damages sustained by the plaintiff was properly received. Hartshorn v. Chaddock, 135 N. Y. 122; 48 St. Rep., 932. _ _

_ _ (4.) We are of the opinion that the court committed no error in denying the defendant’s motion for a non-suit.

(5.) It may be that the verdict of the jury awards the plaintiff a liberal compensation for the injury which he sustained, but upon an inspection of all the evidence we are of the opinion that the special term was warranted in refusing to grant a new trial on the ground that the damages were excessive. The foregoing views lead to an affirmance.

Judgment and order affirmed with costs.

Martin and Merwin, JJ,, concur.


text:
    Joab L. Clift, as Surviving Partner of C. Pardee & Co., Resp’t, v. Mary E. Moses ; Lucien Moses, Impleaded, etc., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1894.)

    1. Fraudulent Conveyances—Security.
    In an action to set aside fraudulent transfers of property, the court may, in the exercise of its equity jurisdiction, permit the transfers to stand as security for the indebtedness actually existing in favor of the transferee, where the circumstances warrant it.
    53. Same—Belief.
    In such action, the creditor may be entitled to relief, even in the absence of an affirmative finding of fraud or fraudulent intent on the part of the grantee.
    3. Same—Referee.
    In such action, where the accounts between the grantor and grantee are unsettled, it is proper to appoint a receiver and to order an accounting before a referee, with direction to move for judgment upon the coming in of the referee’s report.

      4. Same—Interest.
    In such case, though some of the items of account are unliquidated, the grantee is entitled to interest upon the balance as thus ascertained from the time of the transfers.

      Appeal from an interlocutory judgment entered on the 30th day of October, 1891, in Onondaga county, adjudging that certain transfers of real and personal property made by Lucien Moses to Mary E. Moses were fraudulent and void; and also from the judgment.entered on the 9th of December, 1892, “adjudging that the referee’s report herein be confirmed and overruling the exceptions to such report, etc.” June 18th, 1880, plaintiff brought an action against Lucien Moses and another on certain promissory notes made by Moses and Dodge, and recovered a judgment thereon which was affirmed by the court of appeals. See Glift v. Moses, 112 ¡N". Y. 426; 21 St. Eep. 777. Executions were issued upon the judgment and returned wholly unsatisfied and this creditors action was commenced to set aside the transfers of certain real and personal property made by Moses on the 2d of September, 1880, to his wife, the complaint alleging that the transfers were fraudulent. The answer denies the allegations of fraud and sets up that the transfers and conveyances were made in liquidation of an indebtedness on the part of the husband to the wife which was carried into a settlement and adjusted simultaneous with the execution of the conveyance and transfer to the wife. The issues were brought to trial at special term and the court found that the transfers of property by Lucien Moses to his wife were made with intent to defraud his creditors, and refused to find that the transfers were accepted by defendant, Mary E. Moses, without any intent to defraud the creditors of Lucien Moses. The court found that when the transfers were made in Sept., 1880, he was only indebted to her in the sum of $12,157.18, and allowed the defendant, Mary E. Moses, to hold- the property transferred as security for the debt of her husband to that extent and ordered an accounting before a referee. Tire deeds of the real estate were not recorded until after the verdict was recovered in the action upon the notes which evidenced the indebtedness of Moses and Dodge to the plaintiff. This action was brought in the fall of 1884, and was brought to a trial in 1890, and Mary E. Moses had disposed of a large amount of the property which was transferred to her and had received on account of the property so transferred rents, profits and income. The referee found, after stating the account, that the defendant, Mary E. Moses, had received from the property transferred and disposed of by her and from the rents and profits and income thereof $518.70 more than sufficient to pay the indebtednes of $12,157.18 and the interest thereon from September 2d, 1880, and that there was real estate and personal property so transferred to her remaining undisposed of. Exceptions were filed to the referee’s report and after hearing the parties, the court overruled the exceptions and ordered judgment in accordance with the findings of the referee.
    Jenney, Brooks, Marshall & Huger, for app’lts ; Kennedy, Tracy, Mills & Ayling, for resp’t
   Hardin, P. J.

Upon sufficient evidence the trial court has found that the transfers made on the--day of September, 1880, by Lucien Moses, the judgment debtor, to his wife, Mary E. Moses, in settlement of her claims against her husband, were with a fraudulent intent on the part of the husband. And he has refused to find that the wife accepted and received the property without any intent to defraud his creditors. It was claimed upon the trial that the transfers of property worth $22,500 were made for the payment of an indebtedness of some $23,000, then claimed to be owing by the husband to the wife. The evidence failed to establish such an indebtedness to the extent claimed by the defendant ; on the contrary the evidence warranted the conclusion of the trial judge that the indebtedness at that time was only $12,-157.18. It therefore appears that the transfers were not made for a full, adequate and sufficient consideration. The circumstances disclosed by the evidence in the case induced the court, in the exercise of its equity jurisdiction, to permit the transfers to stand as security for the indebtedness actually existing in favor of the transferee. The relief thus granted was in accordance with the rule laid down by Chancellor Kent in Boyd v. Dunlap, 1 John. Ch. 478, which was approved and followed in Friedman v. Hirsch, 18 N. Y. Supp. 85; 44 St. Rep. 199.

In Clements v. Moore, 6 Wallace, 312, Swayne, J., said, in speaking of a somewhat similar case, “ The equity appealed to, while it scans the transaction with the severest scrutiny, looks at all the facts, and giving to each one its due weight, deals with the subject before it according to its own ideas of right and justice. """ It allows a security to stand for the amount advanced upon it ” The doctrine is stated and applied in Bigelow v. Ayrault, 46 Barb. 143, and is recognized in Van Wyck v. Baker, 16 Hun, 169 ; Pond v. Comstock, 20 Hun, 493.

We are not willing to assent to the contention of the appellant that in the absence of an affirmative finding of fraud or fraudulent intent on the part of Mary E. Moses, the plaintiff is entitled to no relief.

Dudley v. Danforth, 61 N. Y., 626, was an action at law and upon an entire different state of facts, and there was a finding in that case “ that the purchase and sale were made in good faith for the purpose of paying to plaintiffs an honest debt owed by Edget to them.’’

Parker v. Connor, 93 N. Y., 118, was an action at law, and there was evidence tending to prove that the plaintiff paid a valuable and adequate consideration for the chattels in question.”

In Murphy v. Briggs, 89 N. Y., 447, the mortgage, which was allowed to remain, was shown to be for a valid indebtedness, “ and there was no ground for claiming that such transfer was invalid ” as to the attacking creditor.

(2) It is insisted in behalf of the appellants that Lucien Moses, the husband, was primarily liable to support and maintain his wife, and that she was not, in law, bound to bear the burden of her maintenance or the living expenses incurred by either of them out of her separate property ; and our attention is called to Hendricks v. Isaacs, 117 N. Y., 411; 27 St. Rep. 449; Maxon v. Scott, 55 N. Y., 247; Hallock v. Bacon, 45 St. Rep. 484; Winkler v. Schlager, 64 Hun, 83 ; 45 St. Rep. 507; which cases recognize the obligation of a husband to support and maintain his wife. It is also contended by the appellant that a pre-existing indebtedness furnishes a proper foundation for the transfer of property, and he calls our attention to Murphy v. Briggs, 89 N. Y., 446; Seymour v. Wilson, 19 N. Y., 421 ; Pond v. Comstock, 20 Hun, 492 ; affirmed, 87 N. Y., 627; Auburn Ex. Bank v. Fitch, 48 Barb. 344. And he calls our attention to Hale v. Stewart. 7 Hun, 591, where a conveyance was upheld to a creditor by his debtor to secure a bona fide debt, although the debtor was left with no other property, from which another creditor could enfdrce a payment of a debt; and to Carpenter v. Muren, 42 Barb., 300, to the same effect; and the same doctrine stated by this court in Bishop v. Stebbins, 41 Hun, 247; 4 St. Rep. 138; and to Syracuse Chilled Plow Co. v. Wing, 85 N. Y., 421, where it was held that money received by the husband at a time when he could have claimed it jure mariti. and it was held that it furnished a foundation for a conveyance to her, and insists that the whole of the claims included! in the settlement of 1880 should be allowed. In speaking of some of the items charged in the account that were rejected, in the thirteenth finding of fact, the court says: “ That all of these-moneys are claimed to have been paid out, but the parties are unable to give any definite account of the way they were disposed of. That they were used in part for living expenses and in part for the benefit of the separate estate of the wife, but no credit was given to the husband for such expenditures for the benefit of said separate estate.” It is further found “ That there was no understanding or expectation that the husband should ever account for or pay over to the wife the said amounts of interest and rents mentioned in the last finding, so received and expended, or that the same should ever constitute an indebtedness between them, and the same and the interest thereon were improperly included in said account. That the payments made on account of the wife’s separate property, mentioned in the last finding, equal the small items for property sold, .and the latter was not properly included in the account.” The evidence warranted the finding on the part of the court that the moneys received by the husband from the wife, from her income, were expended with her knowledge and consent to defray the expenses and maintenance of the two; and in eliminating the moneys derived from her from the settlement of September 2, 1880. Hendricks v. Isaacs, 117 N. Y., 411; 27 St. Rep., 449; Smith v. Smith, 125 N. Y., 229 ; 34 St. Rep. 857; Patterson v. Hill, 61 Iowa, 534; Gleghorn v. Gleghorn, 118 Pa. S., 383; Henney v. Phillips, 50 Pa. S., 382; Clark v. Rosenkrans, 4 Stew. N. J. Eq., 665; Edelen v. Edelen, 11 Md., 415; John v. John, 31 Pa., 450.

We think the evidence before the trial court fully warranted the conclusion reached by it in cutting down the claims of Mary E. Moses to the sum of $12,157.18, as stated in the findings of the. court; and that “said conveyances and transfers of real and personal property and cash made and executed by said defendant,' Lncien Moses, to said defendant, Mary E. Moses, on or about Sept. 2, 1880, * * * were and each of them is fraudulent and void as against the plaintiff and his said judgment and claims and should be vacated and set asideand in finding also, as a matter of law “ That the defendant, Mary E. Moses, is entitled to hold said deed and conveyances of real estate and transfers of personal property and cash, as security only for the said indebtedness existing from said Lucien Moses to her at the time thereof, to wit, $12,157.18, and interest thereon from Sept. 2, 1880, less any sums found due from her upon the accounting hereinand that it was proper to appoint a receiver and to order an accounting before á referee, and to move for a further judgment upon the coming in of the report of the referee. Coleman v. Burr, 25 Hun, 239; affirmed, 93 N. Y., 18; Remington Paper Co. v. O'Dougherty, 36 Hun, 86.

In Third National Bank v. Guenther, 123 N. Y., 568; 34 St. Rep. 478 ; in considering an agreement made by a wife to support the family, it was said by the court that “ she has the right to perform it, and, having done so, she cannot recall what she has paid or require her husband to reimburse her.”

(3) Although some of the items which were allowed and included in the balance ascertained by the trial court and stated at $12,157.18 were unliquidated, it must be assumed that the parties at that time so far adjusted the claims and attempted to pay the indebtedness to the wife by the transfers, and that from the time of the transfers she was entitled to interest upon the balance as thus ascertained. Robinson v. Stewart, 10 N. Y., 189.

(4) It was in accordance with welL established precedents for the trial judge to direct the referee in stating the accounts of the parties to take into consideration interest on the items. In Butler v. Stoddard, 7 Paige 163, the chancellor in ordering a reference to the master in a case somewhat analogous to this, directed him to allow “ interest as shall be just.” That case was affirmed by the court of errors, 20 Wend., 509, and is referred to approvingly by Judge Denio in Robinson v. Stewart, supra.

Appellants complain of the mode of computation of interest adopted by the referee, which was the mode prevailing among merchants charging and crediting interest on the items on either side under the rule denominated “ The Merchants Rule,” which is stated in Stoughton v. Lynch, 2 John. Ch. 209.

In Hart v. Dervey, 2 Paige Ch. 207, it is said that the mercantile mode of computation in cases of running accounts is the more convenient mode, and that it is not usurious, and that it may be adopted by parties who agree thereto. In the case before us there is no agreement of the parties upon which the mercantile mode adopted by the referree can rest. The referee was requested in stating the account to do so “ upon the principle of partial payments (folio 944), and an exception was taken to his refusal. (Polio 361.) It seems reasonable that Mrs. Moses should, upon the $12,157.18, receive interest computed under the partial payment rule; (see Connecticut v. Jackson, 1 John. Ch. 16) and that she should be allowed interest upon the sums expended for taxes, necessary repairs and the itemqyrith which she is credited in the report. Peyser v. Myers, 18 N. Y. Supp., 744 ; 45 St. Rep. 413, and cases cited.

In Mann v. Lawrence, 3 Bradford, 424, it was held proper to credit an executor with interest on sums expended out of his own money to discharge claims for the benefit of the estate held by by him. This rule seems to us equitable and just; and that when Mrs. Moses received moneys from the estate she should be permitted to take therefrom the expenditures made by her, with proper allowances of interest, and the balance of the su.m received by her should be applied in extinguishment of the indebtedness held by her, Cowing v. Howard, 46 Barb., 584; and if the receipt and payment took place at the same time “ one sum should be allowed to compensate the other as far as it goes.” Morton & Ludlow v. Western, 5 Paige, 519.

The interlocutory decree should contain a provision directing the accounting and allowance of interest upon the rule relating to partial payments.

The interlocutory judgment must be modified so that it shall contain such a provision.

Interlocutory judgment must be modified, as stated in the opinion, and as so modified affirmed.

Order confirming the report of the referee and final judgment reversed with costs of this appeal to the appellant payable out of the fund, and report sent back to the referee to amend after computing interest under the rule as to partial payments.

Martin and Meravin, JJ., concur.


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    Minnie English, Resp’t v. Joel Hanford, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1894,)

    1. Warranty—Fraud.
    Where an action is treated in the trial court, as one upon a warranty and damages are sought to be recovered for its breach, a verdict for plaintiff cannot be sustained on the ground of fraud.
    2. Same—When action tor will lie.
    No action will lie on a warranty unless the title has fully passed to the buyer.
    Appeal from a judgment entered in Tompkins county on the 5tli day of November, 1892, and also from an order denying a motion for a netv trial entered on the 9th day of October, 1893. At the circuit the jury rendered a verdict for the plaintiff in the sum of $70.00 damages. Plaintiff in her complaint alleges that in August, 1887, “she was induced by the defendant to purchase of him an Ithaca organ No. , upon representations by the defendant that said organ was new and first-class in every particular, and Avliich plaintiff believed and relied upon. That defendant, for the purchase price of said organ, induced plaintiff to make her promissory note to him for sixty-five dollars, after obtaining ten dollars cash down.” Her complaint also contains the following allegation: “That defendant now has, by reason of his fraud, deception and misrepresentations, and breach of warranty to plaintiff, forty-six dollars of plaintiff's money, besides said organ, and plaintiff’s note, upon which there is due and unpaid about twenty-five dollars. That by reason of the foregoing, defendant was guilty of a gross fraud, constituting a breach of warranty of •said organ to plaintiff's damage in the sum of one hundred and fifty dollars.” The answer contains a denial of the allegations of the complaint and sets up that the defendant delivered to the plaintiff an organ “ upon the express agreement that the plaintiff should pay to defendant on account thereof the sum of sixty-five dollars, in monthly payments of five dollars on the first day of each month; and that when the said sum of sixty-five dollars, with annual interest thereon should be paid, the said organ should become the property of the plaintiff; and that until said sum of sixty-five dollars and interest should be so paid, the title thereto remained in the defendant with the right on his part, to retake the said organ out of the possession of the plaintiff, on default of payment, as above specified.” The answer of the defendant contains the further allegation, to wit: “That the said agreement for conditional sale was duly rescinded, and in or about the month of August, 1892, the defendant retook from the plaintiff by process -of law, the possession of the said organ, pursuant to the terms of the agreement aforesaid.”

      Jared T. Newman, for app’lt; Raymond L. Smith, for resp’t.
   Hardin, P. J.

At the commencement of the trial the defendant’s counsel asked the direction of the court to the plaintiff’s counsel “to elect whether he will prosecute this action for deceit in tort, or whether for breach of warranty on contractfolio 3. Thereupon the court observed “ As I Understand it it is announced to be an action for breach of warranty. * * You do not claim now that there is anything but a breach of warranty ?” To which question the plaintiff’s counsel replied “That is all.” When the defendant was giving evidence the question arose as to whether it was admissible to prove the rental value of the organ in the fall of 1887. In connection with the objection the court ■observed “ If there was no warranty then there is no liability folio 112. Thereupon the counsel for the defendant observed “ Do I understand the court takes the position that if they can recover damages at all it must be for a beach of warranty?” To which the court replied, viz.: “It must be fora breach of warranty and nothing else. * * You must defend this action upon the ground that you made no such representation and that there was no warranty, or you fail to defend it in my judgment; and they must maintaindtheir action upon their complaint upon the ground that there was a warranty and there was a breach of 'it. I think you are entitled to offset anything in this action that would offset the purchase price ;’’ folio 114. At the commencement of the charge the trial judge said “ This is an action brought by Minnie English against Joel Hanford to recover for a breach of warranty in the sale of an organ;” folio 154; and further on he said “ The first question for you to proceed with, gentlemen, is, was there a of this kind ? Did he warrant it to be a new organ unusedfolio 162 ; and in referring to the question of damages the court used the following language : “ If she has suffered any damages, gentlemen, I shall charge you that the rule of law in this case is, that she is entitled to recover the difference between the value of a new organ as represented, unused, and this organ in the condition in which it was at the time it was delivered to herfolio 170. From the foregoing events and incidents occurring upon' the trial, we think the action was treated as one upon a warranty, and damages were sought .to be recovered for a breach of warranty; and that, unless the verdict can be maintained upon the theory that the plaintiff was entitled to recover for a warranty, it ought not to be sustained. At the close of the negotiations between the parties in respect to the organ the plaintiff executed an instrument containing the following language:

“$65.00. Ithaca, Aug. 2d, 1887. •
“ One year after date I promise to pay Joel Hanford sixty-five dollars, value received as follows: Five dollars the first of every month until paid.
“ When $65.00 with annual interest is paid, Ithaca organ No. 9,058 is my property; until paid, the title remains in said Joel Hanford or holder of this, with the right to retake it out of my possession on default of payment as above specified.
(Signed) Mbs. Wakeman English.”

Possession of the organ was given to and taken by her and she remained in possession until after she had made default in complying with the terms of her contract with the defendant. She testifies the organ was taken from her possession July(23d, 1892; folio 21. She was in default in making her payments before the property was removed from her possession. The evidence clearly shows that she never completed her contract for the purchase and that she never had a clear, full, absolute, unconditional title to the property prior to the commencement of this action.

In Benjamin on Sales, under the head of Remedies of the Buyer, at page 865, are found the following words: “But no action will lie on a warranty unless the title has fully passed to the buyer. Therefore, where the sale was conditional on payment of the full price which was due in installments, and the last installment had not been paid, it was held in Fyre v. Milligan, 10 Ont. R. 509 (1885) that no remedy yet existed on the warranty.” Benjamin on Sales, Bennett’s edition of 1885.

In Osborn v. Gantz, 60 N. Y., 540, it was held, viz.: “ A warranty is an incident only of a completed sale ; it has no present vitality and force in an executory'contract of sale.”

(2.) It is now sought to maintain the verdict on the ground that the evidence would have justified a finding of fraud on the part of the defendant. The case was not submitted to the jury in that aspect and before the verdict shall be upheld that establishes the defendant’s liability for fraudulent representations he is entitled to a clear and intelligent presentment of the questions relating thereto to the jury. Mayo v. Knowlton, 134 N. Y., 251; 47 St. Rep. 748. We think there should be a new trial ordered.

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

Martin and Merwin, JJ., concur.


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    Jonas S. Van Duzer et al., Resp’ts, v. The Elmira, Cortland and Northern Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1894.)

    1. Nuisance—Notice.
    In an action for damages arising from overflowing land by reason of the
    " defective character of a bridge, what constitutes a reasonable time, which must elapse before a corporation transferee is chargeable with notice, is a question for the jury.
    3. Same.
    Such notice may be inferred from the situation and the method of construction.
    3. Same—Extraordinary Flood.
    Whether a flood of an extraordinary character was such that it should have been anticipated and provided against, is a question for the jury.
    Appeal from a judgment entered in Chemung County on the eighteenth May, 1892, upon a verdict for fifteen hundred dollars, in favor of the plaintiffs, rendered at the Chemung circuit; also appeal from an order at special term, denying a motion for a new trial, made on a case and exceptions.

      Frederick Collin, for app’lt; Gabriel L. Smith, for resp’ts.
   Merwin, J.

This action is brought to recover damages for injuries to plaintiffs’ farm and property thereon, by reason of floods, occurring in October, 1885, and June 1 and 15,1889. It is alleged that the defendant constructed or maintained a bridge across Rewtown creek, and an embankment across plaintiffs’ farm in so negligent and unskillful a manner that the waters were turned from their natural course and thrown upon plaintiffs’ property, causing the injuries complained of.

The plaintiffs, at the dates referred to, were the owners of a farm situated a short distance northeasterly from the village of Horse-heads. Through the central portion of the farm the Rewtown creek passed, in a southerly direction. The railroad of the defendant, as it came from the village of Horseheads, crossed the farm in a northeasterly direction, upon an embankment about seven feet above the natural surface of the ground.- A portion of the road bed was a bridge over Rewtown creek, and this was a short distance northerly from the south line of the farm. The eastern portion of the farm, over a part of which the railroad passed, was low ground. In the embankment beyond the creek there was no passage-way for water, except a cattle pass. The plaintiffs claimed that before the road was built the overflow from the creek, in times of high water, was accustomed to pass easterly across and beyond the farm, doing them no injury, but that since the building of the road the embankment operated to obstruct and gather the water, force it down to the bridge, and that thereupon the occasion complained of, by reason of the insufficiency of the passageway at the bridge, the water was dammed up and forced over the western bank of the creek and onto plaintiffs’ property, to their injury. _ _ .

_ _ . The railroad was originally constructed in 1872, by the Utica, Ithaca and Elmira Railroad Company. The defendant became the owner on tenth March, 1884, and has since then operated the road. Ho question is made here as to the manner or extent of the injuries, but it is claimed (1) that the court erred in submitting to the jury the question whether the defendant had notice or was chargeable with notice or knowledge of the defective character of the bridge at the time of the flood in October, 1885; and (2) that the court, on the motion for a non-suit, should have held as matter of law, that the floods of June, 1889, were of such an extraordinary character that the defendant was not liable.

1. After the time the defendant became the owner of the property, and before October, 1885, there had been no flood that demonstrated the defective character of the bridge. Hor was there at the trial, any proof of express notice to the defendant. It was, therefore, claimed by the defendant, that there was'no liability on it for the damages of 1885. The court charged that the defendant was not liable, unless from the situation itself it was bound to take notice that the bridge was defective. Whether the defendant was so bound was left to the jury to determine, as a question of fact.

In Conhocton Stone Road Co. v. B., N. Y. & E. R. R. Co., 51 N. Y., 573, it was held that a grantee of premises upon which there is a nuisance at the time the title passes, is not responsible therefor, until he has had notice or knowledge of the existence thereof, but that it is not necessary to prove a request to abate. In Ahern v. Steele, 115 N. Y., 203 ; 26 St. Rep., 295, a like principle is stated, and it is there in substance said (p. 213 and seq.) that the notice required to put the party in fault, may be proved like any other fact; that it may sometimes be inferred from mere occupancy, depending upon the circumstances of the case. An obstruction may be such that anyone, whether professional or not, would see at once that it was 'improper and lacked safeguards, necessary to be made, and which might effectually prevent injury. Bellinger v. N. Y. Cent. R. R. Co., 23 N. Y., 51.

In Timlin v. Standard Oil Co., 126 N. Y., 514; 37 St. Rep., 906, it appeared that the Standard Oil Company, on May 1,1885, leased to certain parties, premises upon which was a nuisance not created by the company. The action was against the company, its tenants and others, for damages occurring in September, 1885, in consequence of the nuisance. The court, at the trial, charged that as to the company the plaintiff could not recover, unless the jury were satisfied from the evidence that the company knew, or ought to have known or had notice, that the wall in question was in a dangerous condition before May 1, 1885. On the appeal, this was said to be a correct statement of the law, and the doctrine was laid down that when the owner of premises knows, or, by the exercise of reasonable care, can ascertain that they have upon them a nuisance dangerous to the public or an adjoining owner, it is his duty to abate it before leasing the property, and if he does not, he is liable to respond in damages to anyone subsequently injured. As to the tenants, it was held that they were not liable, unless they had notice of the existence of the nuisance, or time enough had elapsed in which knowledge of its existence would be obtained by the exercise "of reasonable diligence.

In the present case, the defendant became owner and went into possession in March, 1884, and the flood occurred in October, 1885. The bridge crossed the street diagonally, at an angle of about forty-five degrees, and the embankment extended across the flats in a straight line about fifteen hundred feet. The angle of the bridge, with the current of the creek, was such, that any water coming down along the embankment would naturally be thrown across the stream and strike upon the western bank, which in fact gave way in 1885. The bridge was about fifty-nine feet long and rested at each end upon an abutment and in the centre there was a pier.

Between the pier and each abutment was a bent placed there by the defendant, as the evidence tends to show. The capacity of the water way at the bridge without the obstruction of the centre pier and bents, was, as the evidence tends to show, about equal to that between the banks of the creek. The creek was liable to overflow every year from ordinary freshets and it was subject to sudden rise and fall. Upon any overflow the embankment would be likely to gather the water and send it down with considerable force to the bridge. The effect there of the angle could readily be inferred. The western bank of the stream at that point had been partially torn away by a previous flood.

Within the ruling in the Timlin case, the question of notice was properly given to the jury. The test is quite similar to the rule in actions against municipal corporations for injuries from obstructions in streets not placed there by themselves. Pettengill v. City of Yonkers, 116 N. Y., 558; 27 St. Rep., 531. In such cases, what constitutes a reasonable time which must elapse before the corporation is chargeable with notice is a question for the jury-

1. Notice may be inferred from the situation and the method of construction. Sawyer v. Newburg R. R. Co., 157 Mass., 430.

2. There is evidence, that the flood of June 1, 1889, was unusual and extraordinary. And still there is also evidence that there were floods in 1865, 1878, and in 1885 that in that "locality were equal to it or nearly so. A similar question is considered in the case of Mundy v. N. Y., L. E. & W. R. R. Co., decided by this court at this term, in regard to a flood, at the same date, in a neighboring locality. The conclusion is there reached, that it should not be held as a matter of law, that the flood was so extraordinary that the defendant was relieved from all liability. The cases there cited fully sustain the proposition, that, as a general rule it is a question for the jury whether a flood of an extraordinary character was such, that it should have been anticipated and provided against. That rule is applicable to this case.

It follows, that the motion for a nonsuit as to the flood of June 1, 1889, upon the ground that the flood was extraordinary, was properly denied. The facts as to the flood of June 15,1889, do not call for any different ruling.

Ho other question is raised. It follows, that the judgment should be affirmed.

Hardin, P. J., and Martin, J., concur.

Judgment and order affirmed with costs.


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    Louis S. Hanauer, App’lt v. The City of Utica, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1894 )

    Municipal Corporation.
    The board of excise of a city has no power to fix its clerk’s salary beyond the sum fixed by the common council for one of the commissioners.
    Appeal from a judgment of the Oneida county court.

      Bees JÍ. Thomas, for app’lt; Josiah Perry, for resp’t.
   Hardin, P. J.

Plaintiff was clerk of the board of excise of the city of Utica, and brings this action to recover for a quarter’s salary which fell due August 1, 1892. At the close of the evidence the court refused to submit to the jury .the question “ as to whether or not the minutes containing the resolutions ” of the common council adopted at its meeting of May 16, 1892, “ were duly presented by the clerk to the mayor ” as claimed by plaintiff. We think no error was committed by the court in denying the request. Confessedly the clerk of the common council did not deliver to and leave with the mayor a certified copy of the minutes with his seal, prior to the last days of June 29th, or 30th, and the minutes and resolutions therein were not approved at any time prior to those days; nor did the resolutions of the 16th of May become operative because not returned by the mayor prior to July 1,1892, with or without liis objection. His objection to the resolutions favoring the salary of the excise commissioners was timely when made by him in his veto message of July 1, 1892.

Inasmuch as the clerk of the common council certified the proceedings of May 16, 1892, on the 30th of June, the time had expired for the mayor to veto, when his veto message was given. The talk of the clerk at a prior date with the mayor upon the subject of presenting a certificate did not operate to set the time running in which the mayor was to act. The resolution of 16th May, 1892, therefore never became operative, as after the veto it was not again passed by the common council. The attempt to pass it over the veto failed July 1,1892, as only five votes favored it and seven votes against it. At that meeting the salaries of the commissioners were fixed at $250.00 per annum. The clerk of the board of excise was appointed by the board of excise pursuant to chap. 401 of the Laws of 1892. The board had no power to fix his salary beyond the sum fixed by the common council for one of their number. Section 10 of the Laws of 182, chap. 401. , .Inasmuch as the salary of the commissiers was fixed at $250 each, per annum, that was the only compensation per annum the clerk of the board of excise was entitled to receive. The verdict gives him that amount, to-wit, $62.25, and interest, and it was properly directed by the county court of Oneida county, and the judgment entered thereon, I think, should be affirmed, with costs.

Judgment affirmed, with costs to respondent.

Martin and Merwin, JJ., concur.


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    The People, Resp’t v. Milton W. Doxtater, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1894.)

    1. Game Law—Perch Lake.
    The holders of the title in fee of the land under the waters of Perch Lake are not the owners of the fish in the lake.
    2. Same—Chap. 141 of 1886.
    Chap. 141 of 1886, applies to Perch Lake.
    3. Same.
    Such act does not infringe upon any constitutional rights of the owner.
    4. Same.
    The act embraces but a single subject.
    Appeal from a judgment entered in Jefferson county on 29th May, 1893, upon a verdict in favor of the plaintiff, $50.00 directed by the court at the Jefferson circuit.
    Action for a penalty under the provisions of chap. 141, of the Laws of 1886.

      Lansiny & Lansing for app’lt; Virgil K. Kellogg for resp’t.
   Merwin, J.

By- chap. 141 of the Laws of 1886, entitled “An act to prevent taking fish from the waters of Lake Ontario, adjacent to the shore of Jefferson county, by other means than angling,” it is provided that, “ Ho person shall at any time, kill or take from the waters of Henderson bay or Lake Ontario within one mile from the shore between the most westerly point of Pillar Point and the boundary line between the counties of Jefferson and Oswego, or within one mile from the shore of any island in Lake Ontario, which is a part of Jefferson county, except Grenadier Island and Fox Island, or from the waters of any creek, lake or river, or inland waters in the county of Jefferson, any fish of any kind by any devise or means whatever; otherwise then by hook and line, or rod held in hand.” A penalty of fifty dollars was imposed for the violation of any of the provisions of the act.

In the complaint it is alleged, that on or about December 1, 1891, in violation of said act the defendant, “by means of a net did kill and take from Perch lake, which is one of the inland waters in the county of Jefferson, six pickerel, six rock bass and six bullheads.” In the answer the killing and taking from Perch lake is' not denied, but it is denied that Perch lake is one of the inland waters in the county of Jefferson, within the meaning of the act, and it is alleged that Perch lake and the land under it and. the waters and the fish in it are the absolute property of George H. Sherman and others, under whose authority the defendant acted in taking the fish, and that they had the right to take the fish by nets or otherwise as they desired.

Perch lake is situated in the county of Jefferson and is about, two and one-half miles long and from half a mile to a mile wide. Its outlet is Perch river. This is twenty to thirty feet wide and from three to six feet deep and extends a distance of about eight miles to Black Eiver bay which goes into or is a part. of Lake Ontario. The course of Perch river is very crooked and the descent is about a foot to the mile. Near the bay there are falls from fifteen to twenty-five feet high, mainly perpendicular. There is evidence tending to show that fish cannot go up these falls, but there is nothing to prevent fish going down from Perch lake through Perch river over the falls into Lake Ontario. There are numerous landed proprietors along the line of Perch river. The inlet of Perch lake is Hyde creek which is the outlet of Hyde lake some miles above. There is evidence tending to show that in the summer season and especially in a dry time, Hyde creek, at its entrance into Perch lake dries up or lodes itself in the swamp, so that fish would not be able to pass up or down. At other seasons of the year, the water is sufficient for the passage of fish and it was shown that fish, to some extent, were accustomed to inhabit Hyde creek and Hyde lake.

It is conceded by the plaintiff, that those, under whom the defendant claims, hold the title in fee of the land under the waters of Perch lake and that they have the exclusive right of fishing in the lake. It does not follow from this that they are the owners-of the fish in the lake. Their property in them does not vest until they are in power and the possession so far established by the aid of nets or other means that they cannot escape. 2 Kent. Com. 349; Pierson v. Post, 3 Caines, 175 ; Buster v. Newkirk, 20 Johns. 75. The fish in Perch lake were not under the control of the owners of the land. They could at all seasons go at pleasure down Perch river and into Lake Ontario, and during most of the time could pass up Hyde creek. The case of Fleet v. Hegeman, 14 Wend. 42, cited by the counsel for defendant does not apply. There it was held, that oysters planted by an individual in a bed, clearly designated and marked out in a bay or arm of the sea, which is a common fishery to all the inhabitants of the town in which the bay is situated, are the property of him who planted them and trespass lies for any interference with them by another. They had been reclaimed by the plaintiff and distinctly designated according to usage and were substantially in his possession and under his control.

Had the legislature a right to regulate the manner in which the owners of the land should catch the fish? The argument on the part of the defendant is that the present owners have all the rights conveyed by the state in the original patent to Penet; that in that there was no reservation of any right to control the manner of fishing; that, therefore no such right in the state now exists and its attempted exercise by the statute in question is in violation of that part of the constitution which provides that no person shall be deprived of his property without due process of law

To sustain this view the case of People v. Platt, 17 Johns., 195, is cited. In that case it was held that a party, who held by patent from the state an absolute title, without restriction in the use or reservation, of both sides of the Saranac river for a distance of seven miles from Lake Champlain, had the right to erect and maintain at or near the mouth of the river a mill dam although it operated to prevent salmon from going from the lake up the river, and that an act of the legislature, passed after the patent, which required slopes to be made in mill dams of the character of defendants so that salmon might freely pass over the dam, did not affect defendants’ rights and as to them was unconstitutional. It was also held that the public had no right of fishery in the river within the bounds of the patent, it not being a navigable river.

In Hooker v. Cummings, 20 Johns., 91, it was held that the owner of the adjacent land had the exclusive right of fishing in fresh water rivers although in fact navigable and subject in that respect to a public easement. In this case it is said by Chief Justice Spencer: “ The legislature have, confessedly, the right of regulating the taking of fish in private rivers, and do every year pass laws for that purpose, as to river not navigable in any sense and which are unquestionably private property.” The opinion in the Platt case was delivered by the same judge and it is very clear that the ruling in that case was considered to be consistent with the conceded rule stated in the last case.

A large number of acts on this subject that were in existence at the time of the adoption of the Revised Statutes, and in many of which the power here challenged was exercised, will be found in vol. 3 of the Revised Statutes, Isted., commencing at page 318. By sec. 15 of title 11, chap. 20, part 1, of Revised Statutes, power was given to the courts of common pleas in the several counties of the state, “ to regulate the fishing in any of the streams, ponds or lakes, in their respective counties; and to make such order and rule° to prevent the destruction of fish therein, as they shall deem proper.” A similar power was given to boards of supervisors by sub. 13, of sec. 4, of chap. 194, of the Laws of 1849. Numerous laws in the same line have been since passed. By chap. 721, of the Laws of 1871, entitled: “An act to amend and consolidate the several acts relating to the preservation of moose, wild deer, birds and fish,” it was among other things provided, that no one should have in his possession after the same was killed, any quail within certain dates of the year, under a penalty of twenty-five dollars. This was held to be legal and that the legislature had full power to pass the act although the quail were killed at a time, when by the act the killing was not prohibited, or were brought from another state where there was no such prohibition, Phelps v. Racey, 60 N. Y., 10. In that case, it is said by Church, Ch. J., at page 14, “The protection and preservation of game has been secured by law in all civilized countries, and may be justified on grounds, one of which is for of food. Th© measures best adapted to this end are for the legislature to determine, and courts cannot review its discretion. If the regulations operate in any respect, unjustly or oppressively, the proper remedy must be applied by that body. Some of the provisions of the act in question might seem, to one unversed in the mysteries of the subject, to be unnecessarily stringent and severe, but we cannot say that those involved in this action are foreign to the objects sought to be attained, or outside of the wide discretion vested in the' legislature.”

The logic of that case would seem to sustain the law in question. The waters of Perch lake connected directly with the waters of Perch river and Lake Ontario, in which other parties and the public had an interest which was entitled to protection. The exclusive right of fishing which the owners of the lake-had was in subordination to the regulations to be prescribed by the legislature for the general good. 3 Kent Coms., 418. This was the rule at common law. See chap. 5, of Lord Hale’s treatise De Jure Maris. 16 Am. Rep., 58.

A similar question has been considered in other states. In Gentile v. The State, 29 Ind., 409, a statute was under considera/ tion which declared it to be unlawful “ to trap, net, shoot or seine fish, in any of the lakes, rivers or small streams, within this state,” for the period of two years from the time the act took effect and at all times thereafter within certain days of the year. It was claimed that the legislature had no power to pass a law denying or abridging the right of the people of the state to fish in their own waters and upon tlieir own soil at pleasure; that the land owners derive titles from the United States and their grants include all unnavigable streams of water passing over their lands with the exclusive right to fish therein within their own boundaries and that this right to fish may be exercised at all times at the will of the land owner and is not subject to be controlled, restrained or abridged by the legislature. This claim and argument were refuted by the court and the law declared to be constitutional. A like view is taken in many other Indiana cases. See State v. Lewis, 33 N. E. Rep., 1024.

In State v. Roberts, 59 N. H., 484, a person was held liable for catching fish in the prohibited season from water within his own land, and it was said thatthe fact that the fish were in water surron nded by the defendant’s land, unless the water was so enclosed as to be absolutely within his control, and the free passage of the fish to and from it was entirely and rightfully obstructed, gave him no more property in them than he would have obtained .in a wild deer that came upon his land, or a wild bird that might have alighted upon it.” See also State v. Roberts, 59 N. H., 256; Vinton v. Welsh, 9 Pick., 87; Com. v. Look, 108 Mass., 456; 8 Am. & Eng. Ency., 34.

In The People v. Bridges, 142 Ill., 30, the defendant was prosecuted for the violation of an act that declared it to be unlawful for any person to catch or kill any fish with any seine, “ in or upon any of the rivers, creeks,, streams, ponds, lakes, sloughs, bayous or other water-courses wholly within or running through the state of Illinois,” with some exceptions not important to be here stated. The fishing by defendant was in a small lake entirely on the land of one Miller, who authorized the defendant to fish. The lake was a short distance from the Horth Fork of Sangamon river which was not a stream or river used for navigation. During high water in spring and fall the waters of the lake were connected with the waters of the river, this connection lasting at times for a period of several days or weeks. When there was no high water in the river, the lake was entirely shut in and its waters did not mingle at all with the waters of the river. The fishing was in the month of July. It was held that the act was constitutional and valid and that the defendant was liable. It was also held that the lake was within the statute, although the expression “ other water courses ” was used in it.

It must be held, we think, that the legislature had the power to pass the act in question and that it does not infringe upon any constitutional rights of the defendant.

It is further urged by the defendant that the act only applies to and affects the public waters of the state, and does not apply to a body of water like Perch lake that is entirely on land owned by private individuals. - The act is in its terms certainly broad enough to cover Perch lake. It includes “ any creek, lake or river, or inland waters in the county of Jefferson.” ' There is no indication of any intention to exclude a body of water like Perch lake, that directly connects at all seasons of the year with a river of considerable size that empties into Lake Ontario. It is very clear, especially in view of the current legislation on the subject, that the object of the law would not be attained by applying it simply to public waters. There is no such basis for an implied reservation as there was in People v. Platt, supra, upon which defendant relies.

The, defendant further claims that the act in question, if construed to cover private as well as public waters, covers two subjects, and is therefore in violation of the provision of the constitution that requires that no local bill shall embrace more than one subject and that shall be expressed in the title. Ho distinction is made in the act between public and private waters. The subject is a single one and that is the prevention of fishing in certain waters by other means than angling. The title is sufficiently specific. Neuendorff v. Duryea, 69 N. Y., 557; Astor v. Arcade R. Co., 113 N. Y., 110; 22 St. Rep., 1. This objection to the act is not, we think, well taken.

These considerations lead to an affirmance of the judgment.

Hardin, P. J., and Martin, J., concur.

Judgment affirmed with costs.


text:
    Hawley Pettibone et al., App’lts, v. Maria Moore, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1894.)

    1. Contract—Offer.
    Though an oiler can be, at any time before acceptance, revoked, it ceases to be an offer as soon as it is accepted and ripens into a contract.

      2. Same—Consideration.
    Such acceptance constitutes a sufficient legal consideration for the engagement.
    3. Same—Statute of Frauds.
    Where the proposal is in writing and signed by the party, the assent or acceptance may be verbal, and the contract, as against the party signing, valid within the statute of frauds.
    4. Same.
    The fact that the contract, by reason of the acceptance being verbal, may not be enforceable against the accepting party, is no defense.
    Appeal from an interlocutory judgment entered in Oneida county on 5th July, 1893, sustaining the demurrer of the defendant to the complaint.
    This action is "for the specific performance of a written instrument which is set out in the complaint and is as follows:
    “ Trenton Falls, June 3, 1891.
    This agreement made this 3rd June, 1891, between Maria Moore, Trenton Falls, N. Y., Oneida county, party of the first part, and Hawley Pettibone, Hartford, Ct., and J. W. Jenkins, of Vernon, Oneida county, N. Y, of the second part, WITNESS-ETH:
    That the party of the first part for and in consideration of the annual rental of $1,000 and furnishing the electrical power for lighting of the two hotels and cottage and pleasure grounds adjoining of the party of the first part, for three months of each year, agrees to let to the parties of the second part, their heirs and assigns, the sole right to utilize for power purposes, the falls known as Mill-dam Fall and High Falls and the water of the West Canada Creeek, and right of way for the erection of suitable dam and conduit and plant and maintenance thereof to utilize said power.
    The parties of the second part are to protect or maintain the walks on the west bank of said creek that may be interfered with the erection of said dam. This agreement or lease is binding for six months from date. Party of the first part will give on the-above terms a lease for 99 years to the parties of the second part subject to the payment of annual rental.
    Maria Moore,

      Party of the first part. Hawley Pettibone,
    J. W. Jenkins,

      Parties of the second part.

    Witness, C. E. Moore.”
    It was also alleged that, after the making of the said agreement and on the strength of it, the plaintiffs expended large sums of money in the purchasing and leasing of other rights and premises near and adjoining the premises therein mentioned, and to be used in connection therewith and so as to enable the plaintiffs to use the water power of the stream leased from defendant, and that they spent much time in effecting such purchases and leases; that unless specific performance of defendant’s agreement can be had plaintiffs cannot avail themselves of the other rights acquired; that before the expiration of the agreement with defendant, the plaintiffs, being desirous of making a lease with defendant for the term of ninety-nine years as provided in said agreement, “ made a legal tender to the defendant of the sum of $1,000, at the same time producing duplicate leases for the term of 99 years from the date thereof, of the above mentioned premises and rights, drawn in conformity with the provisions of said agreement of J une 3, 1891, which said duplicate leases were duly signed by the said Pettibone & Jenkins, and the said defendant was requested to sign the same; that she refused to accept the said sum of money and refused to sign said leases and still refuses to do as plaintiffs are informed and believe.”
    The ground of the demurrer is that the complaint does not state facts sufficient to constitute a cause of action.

      William Kernan, for app’lts ; Matteson ■& DeAngelis, for resp’t.
   Merwin, J.

The agreement in question was not under seal and it is not alleged that possession was taken under it. The claim of the defendant is that the instrument was simply an option for a lease and void because given without consideration.

The plaintiffs claim that the instrument should be construed to be a lease for six months with the privilege of a renewal for 99 years. It is conceded that if such is the construction, there would be a sufficient consideration to support the promise to renew. It was held at special term that the instrument was simply an option for a lease and void for want of consideration.

It is, however, claimed by the plaintiffs that, if the agreement was simply an option, it is alleged in the complaint that they elected to take it and tendered the rent for a year and a lease in duplicate signed by them which they requested the defendant to sign, and that, therefore, they are entitled to enforce the agreement and have the lease. This view of the case seems to call for some further consideration.

In determining the sufficiency of the complaint, it must be assumed that the facts stated therein, as well as such as may by reasonable and fair intendment be implied from the allegations made, are true. Milliken v. Western Union Tel. Co., 110 N. Y., 403 ; 18 St. Rep., 328.

Applying this rule and treating the agreement as an offer only, its acceptance within the time of its continuance is in substance alleged and a notification thereof to the defendant. The offer standing alone was without consideration and the defendant had a right at any time before acceptance to revoke it. The plaintiffs had the right to accept at any time before its revocation and within the time specified in it. A time having been specified for its continuance, the offer was presumptively open for that time. Mactier v. Frith, 6 Wend. 103, and if within that time the defendant desired to revoke it, it was her duty to notify the other party. 1 Chitty on Cont., 11th Am. ed., 16. If before such notice they accepted, there became a completed bargain. The acceptance might be by acts, as well as by words. Fry on Spec. Per. § 184; Waterman on Spec. Per. 137; White v. Corlies, 46 N. Y., 467. The vital question here is not whether there was a consideration for the offer, but whether by acceptance there became a completed bargain. If so, then the offer as accepted showed the terms of the contract and the consideration upon either side. Tb,e acceptance or assent imported an undertaking by the acceptor to do and perform all that by the terms of the contract he was required to do or perform. See 1 Pars, on Cont. 6th ed., 481. 1 Chitty on contracts, 11 and note. Bos. & M. R. R. Co. v. Bartlett, 3 Cush. 224.

In the Bartlett case, p. 227, it is said in regard to an offer to sell real estate: “ In the present case, though the writing signed by the defendants was but an offer, and an offer which might be revoked, yet while it remained in force and unrevoked, it was a continuing offer during the time limited for acceptance ; and, during the whole of that time, it was an offer every instant, but as soon as it was accepted it ceased to be an offer merely, and then ripened into a contract. The counsel for the defendants is most surely in the right, in saying that the writing when made was without consideration, and did not therefore form a contract. It was then put an offer to contract; and the parties making the offer most undoubtedly might have withdrawn it at any time before acceptance. But when the offer was accepted, the minds of the parties met, and the contract was complete. There was then the meeting of the minds of the parties, which constitutes and is the definition of a contract. The acceptance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the defendants. There was then nothing wanting, in order to perfect a valid contract on the part of the defendants. It was precisely as if the parties had met at the time of the acceptance, and the offer had then been made and accepted and the bargain completed 'at once.

A binding contract, enforceable in equity, may be constituted by the proposal of one party and the acceptance of the other. Fry on Spec. Per. § 166. If the proposal is in writing by the party to be charged and contains all the terms of the proposed contract so that a simple assent is only required of the other party, that assent or acceptance may be verbal and the contract as against the party signing be good within the statute of frauds. Fry § 181; 1 Chitty on Cont. 96; Pomeroy on Spec. Per. § 76, 93 ; Waterman on Spec. Per. § 137.

The fact that the contract, by' reason of the acceptance being verbal, may not be enforceable against the plaintiffs, is no defense to the defendant. Justice v. Lang, 42 N. Y., 494; Mason v. Decker, 72 N. Y., 595.

The case of Chicago & G. E. R. R. Co. v. Dane, 43 N. Y. 240, cited by the counsel for defendant is not applicable here. There the proposal of defendant, was to transfer iron, not exceeding a specified number of tons, at a specified rate. The plaintiff simply assented to the proposal and not specify any number of tons. That left the arrangement indefinite and optional with plaintiff as to whether he would- furnish any iron for transportation. There • was therefore no promise, express or implied, to support the promise of defendant and no consideration for defendant’s promise. It was said that if the acceptance had been for a definite amount within the limit, a contract mutually obligatory would have resulted therefrom.

We are therefore of the opinion that upon the allegations of the complaint the agreement there set out should not be deemed to be void for want of consideration. It is not claimed that the complaint in any other respect is defective.

It follows that the judgment must be reversed.

Hardin, P. J., and Martin, J., concur.

Judgment reversed with costs and demurrer overruled with costs, with leave to defendant to answer within twenty days upon payment of the costs of the demurrer and of the appeal.