author: Learned, P. J.:

text:
    WILLIAM BEACH, Respondent, v. THE CITY OF ELMIRA, Appellant.

      Oity — when it may be restrained, from discharging sewage upon private property.
    The plaintiff purchased from the State certain lands, formerly used for canal purposes, through which ran a ditch or culvert used to carry off the surplus, waters from a portion of the Chemung canal. Thereafter the legislature authorized the defendant to use that portion of the canal which was adjacent to the plaintiff’s premises, witli power to fill and improve the same, and adopt it as a public street and lay a sewer therein. In pursuance of this permission, the defendant occupied the said portion of the canal as. a street and constructed a sewer therein, connecting with the culvert running under the plaintiff’s premises, which sewer the defendant used and allowed others to use for the purpose of draining and conducting off from their premises slops, refuse, and other foul matters, which accumulated under the plaintiff’s premises, occasioning a foul, unhealthy and offensive smell therein, to such an extent as to render the buildings thereon unfit for occupancy.

      jHeld, that the plaintiff was not obliged to. bring an action at law to abate the nuisance aud for damages, but was entitled to an injunction restraining the defendant from discharging, or allowing to bo discharged, on his premises, through the said sewer, any foul, noxious, or offensive matter, or any matter whatever other than the surface water, if any, from the said canal.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The justice before whom tbe case was tried found:
    “ That the defendant was, at the time and times mentioned in-the plaintiff’s complaint, a municipal incorporation, duly created under and by tbe laws of tbe State of New York. That since J une 8, 1868, the plaintiff has been, and still is, the owner aud in tbe possession of tbe premises and real estate mentioned and described in the plaintiff’s complaint in this action, and upon which, are situated the buildings and stores in said complaint described as-being thereon. That before and since the erection of the building upon said premises in about the year 1869, there was and has been a ditch or passage-way over and across premises, through which the-surplus waters of the said Chemung canal flowed into the Chemung river ; that said water came into the said ditch or passage way from the Chemung canal through a culvert under W ater street in said city, said canal being north of plaintiff’s premises, extending northerly to the city limits and beyond. That said Chemung canal was constructed in and about the year 1832, and was used and operated as such until about the year 1866. That in or about the year 1872 the legislature of the State of New York passed an act authorizing the defendant to use that portion of the Chemung canal south of its junction with the Junction canal to the southern terminus of the said Chemung canal (which was the north line of the above-mentioned premises of the plaintiff), or so much thereof as the defendant might determine, with power to All and sewer, improve, and otherwise adopt the same for a public street. That in or about the month of July, 1873, the defendant duly accepted as a public street that part of said Chemung canal which was described in the-aforesaid act of the legislature, and after the occupation of said canal as a public street, and before the commencement of this action, the defendant caused a sewer to be constructed in said street or canal, and connected the same with the culvert mentioned in the third finding of fact herein. That the defendant has used, and allowed others to use, said sewer for the purpose of draining and conducting off from their premises slops, refuse water, drainage of privies, and other foul matter usually conveyed off through sewers in cities ; that the matter thus collected in said sewer has been discharged through the same into the said culvert and on to the premises of the plaintiff. That by reason of the discharge of such foul matter upon the premises of the plaintiff, a foul, disagreeable,, unhealthy, offensive and noxious smell or stench has been created npon said premises, tainting and corrupting the atmosphere in and aorund the said building and premises, to the extent of greatly impairing the enjoyment of the said buildings and premises, and rendering the said building unfit for the occupancy of the plaintiff -or his tenants. That the discharge of said foul matter upon the plaintiff’s premises created a nuisance thereon, of which the defendant had notice; that such nuisance was caused by the discharge of said foul matter from said sewer upon said premises, and not by the discharge of the water of said canal, or that accumulated in said canal, or which came from the same source as the water that passed over the plaintiff’s said premises prior to the construction of said sewer.”
    He found, as conclusions of law:
    “ That the defendant had, and still has, the right to allow the surplus waters from the said canal, if any there be, to pass into said culvert and over the plaintiff’s said premises, substantially as they did when the plaintiff’s said building was erected. But that the defendant had no right to use or allow the said sewer to be •used for the purpose of receiving or conducting on to the premises of the plaintiff other foul or noxious matter which was injurious to him. That the plaintiff is entitled to a decree of this court restraining the defendant from discharging or allowing to be discharged on to the plaintiff’s premises through said sewer any foul, noxious or offensive matter or substance whatever, other than the surface waters, if any, from said canal, or such as formerly, and before the ■construction of said sewer, passed through said canal and over said premises.”

      E. O. Vcmduzer and J. McGwire, for the appellant.
    The plaintiff should have brought an action at law to have the nuisance abated .and for damages. It is a well-settled rule that an action for equitable relief will not be sustained where the plaintiff has a complete remedy at law. (Mills v. Blade, 30 Barb., 549; Wilson v. Forsyth, 24 Id., 105 ; Bouten v. Oity of Brooletyn, 15 Id., 375 ; Heywood v. Oity of Buffalo, 4 Kern., 534; Oriypen v. Hudson, 3 Id., 161; Marsh v. Benson, 19 How. Pr., 421; White v. Reynolds, AIS.; Balcom v. Julien, 22 How. Pr., 349; Stevenson v. Foyer-weather, 21 Id., 449 ; Story Eq. Jur., §§ 925-929 ; Sixth Ave. R. R. Oo. v. Kerr, 28 How. Pr., 283 ; Sweet v. Oity of Troy, 12 Abb.. Pr., N. S., 100; Thompson on Provisional Rem., 207; People v. Horton, 5 Hnn, 522; Messiolc v. Supervisors of Columbia Co., 50 Barb., 191.) In determining what drains or sewers shall be built and where they should discharge, the common council acts quasi jndicially; they act not as agents of the city but as public officers, and the corporation is not liable for their acts in the construction of ¡such sewer. (Child v. City of Boston, 4 Allen, 41; Merrifield v. City of Worcester, 110 Mass., 216; Wilson v. Mayor, die. of N. Y., 1 Denio, 595; Furze v. Mayor, dec. of N. Y., 3 Hill, 612; Mills v. City of Brooklyn, 32 N. Y., 489 ; Húnes v. City of Lode-port, 50 Id., 236.) The aid of an injunction cannot be invoked to prevent, nor will an action lie to redress a consequential injury necessarily resulting from the lawful exercise of a right granted by the sovereign power of the State, or authorized by competent muni■cipal authority. (Williams v. Hew York Central B. B. Co., 18 Barb., 222; Arnold v. Hudson B. B. Co., 49 Id., 108 ; Sweet v. City of Troy, 12 Abb. Pr., 103; Milhau v. Sharp, 15 Barb., 193; BadcUff’s Ex. v. City of Brooklyn, 4 Comst., 195.) Courts will not enjoin a municipal corporation in the performance of an act .authorized by law. (Gallatin v. Oriental Bank, 16 How. Pr., 253 ; Bruce v. Belanoare da Hudson Canal Co., 19 Barb., 371; Sixth Ave.B.B. Co. v. Kerr, 28 How. Pr., 382; Dry Bock Co.t. Mayor, dac. of H. Y, 55 Barb., 298.) The common council was acting within its powers and jurisdiction in laying the sewer, and its use should not be restrained. (Western B. B. Co. v. Holán, 48 N. Y., 519 ; City of Chicago v. Wright, 69 111., 318; Peoples. Canal Board, 55 N. Y., 390.) The remedy of the plaintiff was to apply to the board of health for the abatement of the nuisance. (People v. Corporation of Albany, 11 Wend., 539 ; City of Bochester v. Collins, 12 Barb., 559 ; Cole v. Trustees of Medina, 27 Id., 218 ; Wilson v. City of Hew York, 1 Denio, 595; People v. Horton, 5 Hun, 516.)

      Hill da Stanchfield, for the respondent.
    The acts of the defendant do not constitute a “single”, trespass. The discharge of this filth upon the plaintiff’s premises, “ constitutes a continuing source •of danger, from which injury and damage may flow in endless rep-, etition.” A resort to damages does not afford adequate protection and redress. (Foot v. Brown, 4 Lansing, 47, 52; Corning v. Troy Iron & Nail Factory, 40 N. Y., 191.) It is not now necessary' that the plaintiff’s rights should be first established at law, before an injunction can be had. (PollittY. Andrews, 58 Barb., 20; Corning y. Troy Iron <& Nail Factory, 40 N. Y., 191; Broiestedt v. South Side B. B. Co., 55 Id., 220.) It is an elementary principle of equity jurisprudence, that equity will interfere to prevent a nuisance, where it occasions some special injury to the plaintiff.. (Pennima/n v. New Fork Balance Co., 13 How. Pr., 40; Miihcm. v. Sharp, 27 N. Y., 612; Doolittle v. Supervisors of Broome Co.y 18 Id., 160 ; Campbell v. Seaman, 63 Id., 568; Mulligan v. Elias, 12 Abb. Pr., N. S., 259; Brady v. Wealcs, 3 Barb., 157; Peck y. Elder, 3 Sandf., 126; Catlin v. Valentine, 9 Paige, 575.)
   Learned, P. J.:

The learned justice who tried this case held that the defendant had a right to allow surjtlus waters, if any, from the canal, to pass, into the culvert and through the plaintiff’s premises, substantially as they did when the plaintiff’s building was erected ; but had no. right to use or allow the sewer to be used for receiving or conducting over the plaintiff’s premises foul or noxious matter. And. he enjoined the defendant from discharging on said premises, through said sewer such foul, noxious, or offensive matter.

There is no doubt as to the existence of the nuisance complained of and as to the pecuniary and special injury caused to the plaintiff’s property. The defendant has constructed a sewer in the street formed on the line of the abandoned canal (apparently called State-street). This sewer receives the drainage of' privies and other foul matter, and discharges it through what is called the State culvert, and thence upon the plaintiff’s land, rendering his building unfit for occupancy.

The defendant, on this appeal, insists that an injunction is not the proper remedy. The case of Campbell v. Seaman (63 N. Y., 568) is directly in point to show that an injunction should issue to prevent a nuisance like the present. And where the healthfulness-of the plaintiffs property has been impaired, it is eminently just that the court should prevent the continuance of the wrong.

Again, the defendant insists that the corporation is not liable for the acts of the common council, because, in determining what sewers should be built they act quasi judicially, not as agents of the city, but as public officers. (Mills v. Brooklyn, 32 N. Y., 489, and similar cases.) But the doctrine of these cases is, that the city is not liable to a private action for not providing sufficient sewerage and the like; that is, for such injuries as may be called indirect. In the present case, the city has emptied one of its sewers on the plaintiffs land. That is a direct violation of his right; a continual trespass on his property. And for that the city is liable, just as any private person would be. (Bradt v. Albany, 12 N. Y. Sup’m Ct., 591; Byrnes v. Cohoes, Id., 602. Affirmed, 67 N. Y., 204, 207.) The last case is closely analogous to the present.

The authority given by the legislature to the defendants to lay a sewer in the street (now called State street), conferred no right to discharge the contents of the sewer upon private property. If the city could lawfully discharge those contents on the plaintiffs land, then they might discharge them on the land of any other person who lived on the street or elsewhere. That is, they could make any person’s land the receptacle for sewage. No such power was given.

The defendant urges that it cannot build a sewer through the plaintiff’s premises, and, therefore, cannot reach the river with its sewers. Whether it is possible or hot to find a proper outlet for the sewers, we cannot determine. It' would seem (as a matter of fact) that the plaintiff was willing to have a suitable and sufficient outlet constructed on his premises. But, however that may be, the difficulty under which the defendant claims to lie cannot give a right to use the plaintiff’s land for sewage deposits.

It is also suggested that the operation of the injunction should have been postponed so as to give the defendant time to construct a proper outlet. No such request seems to have been made at the trial. And it appeared that the attention of the defendant had been called to the matter in August, 1878, and that this action was commenced in February, 1879. A sufficient time had been given for the defendant to act. It was the defendant’s duty to remedy the wrong at once.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bookes and Follett, JJ,

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J. :

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HARMON GROAT, Appellant, Impleaded, &c.

      Bond given ~by an applicant for a tavern license — when an action lies upon it, though it has no seal — what officers must prosecute an action upon it — action ■may he brought in the name of 'l'he People — 1857, eh. 628, §§ 7, 22, 24.
    In an action to recover the penalty incurred by a breach of the condition of the bond required by section 7 of chapter 628 of 1857, to be given by an applicant for an inn, tavern, or hotel license, it is no defense to show that the instrument executed and delivered by the applicant, and upon which the license was issued, had no seal.
    An action to recover the penalty incurred by a breach of the condition of such a bond must be prosecuted by the officers named in section 24 of the said act, and not by those named in section 22 thereof.
    Such an action may be brought and prosecuted by the officers named in the said section 24 in the name of the people as obligees of the bond.

      Semble, that the action would not be maintainable in the name of the people as trustees of an express trust.
    Appeal from an order made at Special Term, granting a new trial upon a motion made upon a case and exceptions, after a non-suit ordered at the Circuit.
    The action was originally commenced in the Otsego Circuit Court and was certified to the Supreme Court on account of the disqualification of the county judge to hear and determine it. It was brought to recover the penally incurred by a breach of the condition of the bond given by the defendant upon applying for and receiving an inn, tavern or hotel license. The breach complained of was the suffering and allowing gambling to be carried on in his inn. The complaint alleged, among other things, “ that .at a meeting of the Board of Trustees of the said village of Cooperstown, held on the 31st day of March, 1879, it was resolved by said Board that proceedings be had and taken and an action commenced, and it was ordered, determined and resolved by said Board, to prosecute the said bond and recover the penalty given thereby; and this ac::on is prosecuted in behalf of said Board of Trastees of said village where the said defendant Groat resides, to recover the penalty which has accrued to the said Board by reason of such breach in said bond, and this plaintiff alleges and shows that an action hath accrued to this plaintiff upon said bond, and the said defendants are indebted to this plaintiff by reason of such breach in the sum of $250, and this plaintiff is entitled to have, receive and recover of the said defendants the said sum of $250.
    “ Wherefore the plaintiff demands judgment against the defendants for the stun of $250, with the costs of this action.”
    The defendant claimed that the action coaid not be maintained! in the name of the people, and also that the bond was void for want of a seal. The complaint was dismissed at the Circuit. The plaintiff thereafter moved for a new trial, which motion was granted.

      I. I. Burrlitt, for the appellant.

      George Brooks, for the respondent.
   Learned, P. J. :

The want of a seal did not prevent a recovery. (Kelly v. McCormick, 28 N. Y., 318; Shaw v. Tobias, 3 N. Y. 190.) The case of Tiffany v. Lord (65 N. Y., 310), cited by the defendant, is not in point, because that was not an action by the person whose property had been taken by virtue of the attachment, and who might, therefore, insist on any defect in the papers.

The people are the obligees in the instrument; therefore they are the proper plaintiffs, unless there is some statutory law which requires the action to be brought in the name of some other person. The bond was taken under section 7 of chapter 628 of Laws of 1857. Section 24 of the same chapter makes it the duty of the commissioners of excise, &c., to prosecute the bond, in case of violation, and recover the penalty therefor.” Section '22, as, amended by chapter 820 of Laws of 1873, directs that the penalties imposed by the act, except those penalties provided for in certain sections (not including the 7th), shall be sued for and recovered in the name of certain officers specified.

Now we may say, first, that this is not an action for a penalty imposed. The amount in which an obligor is bound is called the penalty of the bond. But when section 22 speaks of penalties imposed, it refers to fines and forfeitures. This is made plain (if there could be a doubt) by reference to the excepted sections, viz.,' 8, 15, and 19. Section 22, then, does not determine in whose name an action on this bond must be brought.

Next, it is urged, and this is the view taken by the learned justice who granted a new trial, that the people were the trustees of an express trust, and, therefore, that the action is properly brought in their name. It is true that in People v. Norton (9 N. Y., 179), where a bond had been given to the people by a trustee of certain •children, it was held that an action thereon might be maintained in the name of the people as trustees for the benefit of those children. That case is explained in Dayton v. Johnson (69 N. Y., 419). Without criticising it, we may notice that, in that case, the children •could be said to be oestuis que trusts, for whose benefit the people could be said to hold the bond given by the trustee for the faithful performance of his duty. But in the present case, who are the oestuis que trust for whom the people can be said to hold this bond ? There are none. Nor is there property in which any person has a beneficial interest. There cannot be a trust, unless there be some beneficiary. Furthermore, a trust always implies the existence of property over which it is to be exercised. In this case, therefore, the people are not trastees of an express trust.

But as the people are obligees in the bond, there is no difficulty in their maintaining the action simply as obligees, unless section 24, above cited, prevents. The language is, that it shall be the duty of, &c., “ to prosecute the same and recover the penalty therefor.” The complaint in this case avers that the action is prosecuted by the trustees of the village (officers mentioned in that section). We have, therefore, only the question whether the section, which makes it their duty to prosecute and recover, necessarily means that they must prosecute and recover in their own names. There is no need -of giving this construction. It is enough to understand the section as authorizing the officers therein named to conduct and control the action, and to recover the penalty ; and for that purpose to bring the action in the name of the obligee, the people. The section -does not expressly require them to sue in their own names.

For these reasons, wo think the order granting a new trial should he affirmed, with costs.

Present — Learned, P. J., and Hookes, J.; Martin, J., taking no part.

Order affirmed, with costs.


text:
    ANNA N. DWIGHT and others, as Executors, &c., of WALTON DWIGHT, Deceased, Respondents, v. THE GERMANIA INSURANCE COMPANY, Appellant. THE SAME, Respondents, v. THE HOMŒOPATHIC MUTUAL LIFE INSURANCE COMPANY, Appellant. THE SAME, Respondents, v. THE METROPOLITAN LIFE INSURANCE COMPANY, Appellant. THE SAME, Respondents, v. THE MANHATTAN LIFE INSURANCE COMPANY, Appellant. THE SAME, Respondents, v. THE WASHINGTON LIFE INSURANCE COMPANY, Appellant. THE SAME, Respondents, v. THE BROOKLYN LIFE INSURANCE COMPANY, Appellant.

      .Action on policy of insurance — when an insurance company, setting up the falsity of answers in an application for a policy, will he required, to furnish a hill of particulars — how the right of the defendant to prove admissions of the deceased will he preserved.

      Sxx this action, brought by the plaintiffs upon a policy of insurance issued upon . the life of their testator, the defense was that certain of the answers made by him to tbe questions contained in the application upon which the policy was issued were false and untrue, and that the policy was thereby avoided. The answer alleged that the testator had stated in his application that he had made no other application for insurance which had been refused, ancL alleged that this was false, and that he had made such application to other-companies unknown to the defendant. It also alleged that the testator had falsely answered that he had not had bronchitis, or spitting of blood, while-in fact be had had these diseases.

      Held, that the defendant was properly required to furnish to the plaintiffs a. bill of particulars, containing a statement of the companies which the defendant expected to prove had refused to insure the testator’s life, together-with the dates of such applications and refusals, and also a statement of the particular times and places at which it expected to prove that the testator had had spitting of blood, or bronchitis before the making of the-application in question.
    The defendant alleged that the evidence upon which it relied to establish the-existence of these diseases, consisted of oral and written statements of the-testator, which statements did not specify the precise time and place at. which he had had them.

      Held, that the order should be so drawn as to provide that neither the bill, of particulars, nor anything in the order should prevent the defendant from giving evidence of any declarations or statements, oral or written,, made by the testator as to his having had the said ailments, which declarations or statements were general as to time and place.
    Appeal from an order made at Special Term, requiring the defendant to file a bill of particulars.
    Tbe action was brought by the plaintiffs as executors of tbe last will and testament of Walton Dwight, deceased, upon a policy off insurance for $15,000, obtained by the testator from the defendant.
    The defense was that certain of the answers made by the testator-to the-questions contained in his application were false and untrue, and that the policy was thereby avoided. By tlie answer tbe defendant denied, among other tilings:
    “ That tbe said Walton Dwiglit duly performed or complied with, all the pro visions, and agreements contained in said policy, to be-kept and performed by him; and they, upon information and belief, deny that the representations contained in the application, for said policy were, in all respects, true; and they particularly deny, that-the representations contained in the application for said policy, touching the previous condition of health of the said Dwight, and especially in regard to his ever having had splitting-' of blood or bronchitis, and the representations respecting other-insurances upon the life of the said Walton Dwight, or any or either of them, were or are true.....
    “ That upon said application, a further question was put to the said Walton Dwight, as follows :
    “ ‘ 6. 0. Whether an insurance has been applied for with this .or any other company, without having led to an insurance ? If so,, with which companies ? And for what reason did the application net lead to an insurance ?’ And that to said question the said Dwight answered ‘No.’ . . .
    “And these defendants, further answering upon information and belief, say, .... that each and every of the said answers and statements contained in said application, and hereinbefore specified, was false and untrue in the following respects. . .
    “ That prior to the application for the said policy the said Walton Dwight had had bronchitis and spitting of blood; that at the time of the said application the said Walton Dwight, having applied to the Mutual Life Insurance Company of New York, for a policy on-the life plan, had failed to obtain such policy, and that the said Mutual Life Insurance Company of New York refused to issue any policy upon the life of the said Dwight; that the said Dwight, at the time of the said application, and at the time of making the statements hereinbefore mentioned, had not, and never had a policy in the Connecticut Mutual Life Insurance Company for $15,000, or any sum, and that at the time when said application was made, the said Dwight had other insurances upon his life in addition to those specified by him, which fact he suppressed, and had made applications for insurance to one or more companies to this defendant unknown, which had led to no assurance.
    “ Upon the plaintiff’s application for an order requiring the defendant to furnish a bill of particulars, it was Ordered, — That the defendant deliver to the plaintiffs’ attorney, within twenty days from the entry of this order and notice thereof, a statement in writing, under oath, stating the particular times and places at. which the defendant intends or expects to prove that said Walton. Dwight had bronchitis and spitting of blood, or either of them also stating what other insurances upon his life, in addition to those-specified by him in his application, the defendant intends or expects to prove that said Waiton Dwight had at the time when said application was made, specifying particularly the name of each company, with the date and amount of each policy; also stating what applications for insurance to one or more companies which had not led to an assurance, the defendant intends or expects to prove that said Walton Dwight had made at the time when said .application for the policy upon which this action is brought was made, specifying particularly the name of each company to which .application had been so made, with the time when made, and the •date of each application.
    “ And it is further ordered, that the defendant be precluded from giving evidence upon the trial that said Walton Dwight had had bronchitis and spitting of blood or either of them at any time and place; and that said Walton Dwight had any insurances upon his life, at the time when said application was made, in addition to 'those specified by him in said application; and that said Walton Dwight had made at the time when said application for the policy upon which this action is brought was made, any applications for insurance which had not led to an insurance, other than is so specified in such bill of particulars.”

      Jos. La/rocque, for the Germania Life Insurance Company, appellant.
    The order appealed from was not within the power of the •court to make. (Code Civ. Pro., § 531.) The order appealed from affects a substantial right, and is, therefore, properly reviewable on appeal at General Term. (Imermore v. Bcmibridge, 47 How. Pr.. 355 ; Gray v. Fisk, 53 N. Y., 630.)

      James Otis Hoyt, for the Manhattan Life Insurance Company, appellant.
    When a defendant in good faith sets up fraud as a defense, the widest latitude should be given to him to discover and prove it; and when the circumstances of the transactions are not within defendant’s own knowledge or exclusively under his control, the plaintiff should be left to his own diligence in rebutting the allegations of bad faith. (United States v. Tilden, MS. U. S. Dist. •Ct. So. Dist. N. Y.; People v. Tweed, 5 Hun, 353 ; Gee v. Ohase, 3£a/n. Go., 12 Id., 630; Blaekie v. Neilson, 6 Bosw., 681-633 ;
      Dooley v. Royal Baking Powder Co., 1 Law Bulletin, 18; Orvis y. Dana, 1 Abb. New Oas., 285 ; Bangs v. Ocean Nat. Bank, 53 How. Pr., 51 ; Pylic v. Stephen, 6 Mees. & W., 814; Horlock y. Lediard, 10 Id., 677.)

      Augustus Ford, for the Brooklyn Life Insurance Company, appellant.
    The statements contained in the moving papers do not show the plaintiffs entitled to a bill of particulars. (Willis v. Bailey, 19 Johns., 268 ; Depew v. Leal, 5 Duer, 663 ; Commonwealth y. Snelling, 15 Pick., 663.) The plaintiffs do not show their ignorance of the facts alleged in the answer. It is not sufficient to say they have no knowledge or information. (6 Bosw., 681; 7 Bobt., 551.) Prom the nature of this action it must be apparent that a knowledge of the facts on which the defense rests is more with the plaintiffs than the defendant. (Noting v. De Mott, 1 Barb., 30; Blackie v. Neilson, 6 Bosw., 681.)

      William Henry Arnow, for the Metropolitan and ILommopathic Life Insurance Companies, appellants.
    A party is not entitled to a bill of particulars of right, but of favor, to be determined in the sound discretion of the court, in view of all the circumstances of the case. (3 Ohitty Gen. Pr., 613; 1 Impey Pr., K. B., 238; 2 Archbold Pr., K. B., 197; Tidd Pr., 526-; 1 Burrill Pr., 2 od., 431, Dowdney v. Volkenning, 5 J. & S., 313 ; Orvis v. Dana, 1 Abb. New Cas., 268; Tilton v. Beecher, 59 N. Y., 176; Oowr v. Snelling, 15 Pick., 321; Drake v. Thayer, 5 Bobt. 701; Fullerton v. Gaylord, 7 -Id., 557; Vischer v. Gonant, 4 Cow., 396; Bangs v. Ocean Bank, 53 How. Pr., 55 ; Bank v. Lyman, 1 Blatchf., 297; WilUams v. Sinclair, 3 McLean, 289; Hancock’s Appeal, 64 Penn. St., 470; Eanby v. Smith, 12 Irish, C. L., 35; Wren v. Wield, L. B., 4 C. B., 213.) Where confessions are not relied upon, the courts in the following cases have refused to order bills of particulars: Power v. Hughes, 7 J. & S., 482; Kellogg v. Paine, 8 How. Pr., 332; People v. Tweed, 5 Hun, 353; S. G., affirmed, 63 N. Y., 199 ; Orvis v. Dana, 1 Abb. New Oas., 368; Willis y. Bailey, 19 Johns., 268 ; Schile v. Brokhahne, 9 J. & S., 354; Depew v. Leal, 6 Duer., 664; Pybie v. Stephen, 6 Mees. & W., 813; Uarlocle v. Lediard, 10 Id., 677; Eclilin v. Brady> 17 Irish Jur., 189.

      Henry Smith, for the respondents.
    It is the right of a party to ask, and the duty of the court to order particulars of the claim of either party to be furnished, whenever the court can see that it would be in furtherance of justice. (Code Civ. Pro., § 531; Tilton v. Beeoher, 59 N. Y., 176; Orris v. Jennings [Yan Hoesen,. J.], 6 Daly, 447). This power has been exercised in cases similar to those at bar. (Studwell v. Charter Oak Life Ins. Go., 17 Hun,. 602; Marshall v. Emperor Life, 6 Best & Smith, 886; S. G.T 1 L. R., Q. B., 85; Leigh v. Atwater, 2 Abb. New Cas., 419 West v. West, 4 S. & T., 22.) It is no answer for the defendants that there may be matters of which they cannot give particulars. These insurance companies are not entitled to put in an answer at all unless it is founded upon facts constituting a defense. (Wood v. Wood, 2 Paige, 113.) These appeals involve the review of a discretion confided to the Special' Term, and should not be reversed where it does not appear that that discretion has been abused. (Weller v. Weller, 4 Hun, 195; Moore v. Belloni, 10 J. & S., 184; Sohile v. Brohhahne, 9 Id., 353.)
   Learned, P. J.:

No question is made on this appeal as to the form of the order; or as to its details.

After the elaborate discussion of the subject in Tilton v. Beecher (59 N. Y., 176), it must be considered as settled, that the court has the power, in cases of this nature, to order a bill of particulars. But it is urged by the defendants that the defense, of which particulars are ordered, is not a claim,” within the meaning of section 531 of the New Code. Without discussing the exact meaning of that word, we think that the plain scope of the opinion in the case above cited, includes a defense, though it be not strictly a “ claim.” Such was the view taken by the court in Orvis v. Dana (1 Abb. New Cas., 268), reported under the title of Orvis v. Jennings (6 Daly, 447). This is the doctrine in England. (Marshall v. Emperor Life Ass. Soc., L. R., 1 Q. B., 35.)

Next, as to the question whether a case has been made entitling the plaintiff's to the order. The defendants aver that Dwight, in his answers to questions, made on the application to them for insurance, said, that he had not made application for insurance, which application had not led to insurance. And the defendants aver that he had made such application to companies unknown to them.' Now it is plainly reasonable that the defendants should specify the companies, in order that the plaintiffs may prepare to meet the alleged proof.

So again, the defendants aver that Dwight made false answers, in that he said that he had not.had bronchitis, or spitting of blood; while, in fact, he had had these diseases. Now it is true that the affidavit of the plaintiffs used on this motion is not quite as full as it might be. It does not deny that the plaintiffs have full knowledge of the times and places when Dwight had bronchitis and spit blood. It only denies a knowledge of the times and places when .and where the defendant expects to prove that allegation. It is, therefore, open to the criticism made by the defendant, that the ■plaintiffs may have actual knowledge of sufficient facts to show them the particulars of the proposed offense. No allegations, liow■evor, are made in the opposing affidavits, that the facts in this particular are known to the plaintiffs. And we are inclined, therefore, to consider the moving affidavits sufficient. And, in this view, it seems to be only just and fair that some particularity should be given to the defense. The plaintiffs ought to know, with some reasonable certainty, at what times and in what places the deceased is claimed to have have had these ailments. (See Marshall v. Emperor Life, ut supra.)

An important argument, however, on the part of the defendants, is that the evidence on which they rely as to the existence of these .ailments consists, so far as they are advised at present, of oral and written statements of said Dwight, which statements do not specify the precise times and places. A similar argument was made in the case of Tilton v. Beecher, ut supra. And the Court of Appeals then said that a court would not order a bill of particulars “ in ■such form as to exclude evidence of general confessions.” That -court did not indicate how this was to be done; but it certainly seems to be important that general confessions should not be excluded. The order may therefore be modified by adding a clause that neither the bill of particulars nor anything in the order should prevent the defendants from giving evidence of any declarations or statements, oral or written, made by said Dwight, of his having had said ailments, which declarations or statements are general as to-time and place.

As thus modified the order should be affirmed, and the costs of this appeal and printing disbursements should abide the event.

Present — Learned, P. J., and Bookes, J.; Martin, J., taking no part.

Orders affirmed as modified; $10 costs and disbursements to abide the event;

order to be settled before Learned, P. J.


author: Per Curiam:

text:
    THE GOODYEAR DENTAL VULCANITE COMPANY and JOSIAH BACON, Appellants, v. MARCELLUS M. FRISSELLE and HYMAN ROSA, Respondents.

      Judgment of the United States Circuit Court — an action will lie thereon, though it has been docleeted, without first obtaining the home of the court — Code, § 71.
    A judgment of the United States Circuit Court, though docketed in a county clerk’s office, still remains a judgment of that court, and an action can be brought thereon without first obtaining leave from the court" so to do, as is required by section 71 of the Code when an action is to be brought upon a judgment recovered in a court of this State.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    This action was brought, without leave of the court, upon a judgment recovered by these plaintiffs against these defendants, on February 18, 1876, in the United States Circuit Court for the Southern District of New York, a transcript of which judgment was, on March 20, 1876, docketed in the office of the clerk of the county of Ulster, in pursuance of section 39 of chapter 470 of 1847.

      The question, involved was whether or not such an action could be maintained, without first obtaining the leave of the court so to-do.

      W. II. L. Lee, for the appellants.

      J. E. Van Etten, for the respondents.
   Per Curiam:

Although the judgment had been docketed in a county clerk’s office, yet it still remained a judgment of the United States Circuit Court. It did not become a judgment of a court of this State, And therefore leave to sue them was not necessary under section II of the old Code.

The case of Tompkins v. Purcell (12 Hun, 662), in the First Department, decides an analogous point; that is, that proceedings supplementary cannot be taken in the Supreme Court on a judgment of the United States Court, although it has been docketed in the office of a county clerk.

As a general rule, a party has a right to sue on any cause of action which he holds. Any statutory exception to that right must be distinctly expressed.

The language of the section above cited does not distinctly, or by implication, include judgments recovered in courts other than those of this State. Nor do we think that the policy of the statute applies to any others. It is sufficient to notice in this connection that the decision above cited is a good reason why the plaintiff should desire to have a judgment in a court of this State.

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

Present — Learned, P. J., and Bockes, J.

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


text:
      In the Matter of the Application of THE BOSTON, HOOSAC TUNNEL & WESTERN RAILWAY COMPANY, Appellant, to Acquire Lands of THE TROY & BOSTON RAILROAD COMPANY, Respondent.

      Eminent domain — damages to be paid by a railroad company — they are to be determined by the detriment occasioned to the owner, and not by the value of the land to the company.

    'The road of the Troy & Boston R. R. Co. originally crossed the Hoosac river at two points. Thereafter that company bought certain land, and so turned the course of the river as to leave their road entirely on its east side. By so doing, they left a piece of land between the track and the old channel, to which there was no access either by a public or a private road. Another railroad company having applied to take a portion of this land, commissioners to appraise the damages to be awarded therefor were appointed, and ü hearing had, at which witnesses called by the petitioners testified that $50 .an acre was a liberal price, while the president of the Troy & Boston R. R. •Co. testified that, it was worth $12,000 for railroad purposes. - The land was not however of that value to the Troy & Boston R. R., their tracks having already been constructed on adjoining land. The commissioners fixed the ■damages to be paid by the petitioners at $5,000, stating that in arriving at that sum they included in it the value of the land, as situated, for general railway purposes.

      Held, on appeal by the petitioner, that the commissioners erred in so doing.
    That the damages to be paid were to be determined by the detriment occasioned to the owner of the land taken, and that the amount thereof should be neither increased or diminished by the fact that the land to be taken was peculiarly well or ill adapted to the uses of a railroad.
    Appeal from the award of commissioners appointed to appraise the value of certain lands, the property of the Troy & Boston Railroad Company, which the appellant sought to acquire by virtue of the provisions of the general railroad act.
    The Troy & Boston Railroad runs from Troy to the Hoosac Tunnel, and the Boston, Hoosac Tunnel & Western Railway from Mechanicville to the tunnel, and the routes of the two roads are substantially parallel from Schaghticoke to the tunnel. At the point where the land lies which was taken in this proceeding, the line of the Troy & Boston road crossed, at two points, the former bed of the Hoosac river. In order to avoid the necessity of building two expensive bridges, the Troy & Boston road turned the ■course of the Hoosac river at this point, so as to build the road wholly on the east side of the river, and for the puipose of so ■doing purchased the land taken in this proceeding, and has held it ever since. The appellant company now desires to take a portion ■of this land for the uses of its own railroad. It was claimed that, hy reason of the change of the course of the river, made by the respondent company, the petitioner would thereby be enabled to build its road upon a fill across the old channel of the river and to ■dispense with the necessity of building two bridges, one four hundred feet long, and the other of the length of two hundred feet.
    The land in question, for other than railroad purposes, was of nominal value. Evidence was given tending to show that for railroad purposes this land was worth $12,000, and that it was worth $10,000 or $12,000 more for such purposes than it would have been had not the Troy & Boston road turned the river by their embankment at this point. . The commissioners made an award of $5,000. In compliance with an order of the Special 'Term, the commissioners stated that in arriving at the said compen nation they included the value of the land for railroad purposes, •and excluded any amount for the value of the use of it to the respondent for their railroad purposes, except that they included what they deemed a proper amount for the value of the land for general railroad purposes.

      James Gibson and M W. Paige, for the appellant.

      Eseh Gowen, for the respondent.
   Learned, P. J.:

The commissioners in this case awarded as compensation to the Troy & Boston Railroad Company, for land to be taken by the Boston, Hoosac Tunnel & Western Railroad Company, the sum of $5,000. The matter w;as sent back to them to state certain matters, as to the mode at which they arrived at this amount. And by a further report they stated that, in arriving at said compensation, they did include the value of the real estate for railroad purposes ; that they excluded the value of the use of the land to the Troy & Boston Railroad Company, except that they included what they deemed a proper amount for the value of the land for general-railroad purposes.

The land taken was a strip about one hundred feet in width and about three acres in size. It had never been used by the respondent or any one else, and was unavailable for purposes of cultivation. The Troy & Boston Railroad at this place crossed the old channel of the lioosac river at the two points. In order to turn-the river the Troy & Boston Railroad Company bought this land-They then turned the course of the river, so as to build their road wholly on its east side. By doing this they left what was called the- “ Island,” a piece of land between their track and the bend of the old channel. The application to take the land in question, a part-of that island, had been opposed by the Troy & Boston Company and the court had found that the land proposed to be taken was not necessary to, or required by, the respondent, for the purposes of its incorporation.

On the hearing before the commissioners, a witness, on behalf of the petitioners, testified that $50 an acre was a liberal price. On the part of the respondents, their president testified that the value-of the land was $12,000. He explained, on cross-examination, that-he meant that this was its value to the Troy & Boston Railroad Company, for the purposes of its incorporation ; and that there was-no access to the land by public or private road.

The question on this appeal is whether or not the commissioners-made up the amount of compensation on a correct principle. It is not disputed that $50 an acre is a full value for this land as farming land. But it is urged by the respondents that, when part of the land of an existing railroad company is taken by another road, and the value of the land has been greatly enhanced for railroad purposes by improvements of the existing railroad, the new road must pay its fair value for railroad purposes.

In considering this question, wo must first notice that it has been already found by the court that the piece of land to be taken is not necessary to, or required by respondents for their own purposes. No special value to them can therefore come into account, because they do not need this land. It is undoubtedly true that, if the respondents had not constructed their track upon an embankment which cut off the bend of the river, then the track of the petitioners, instead of going over a dry channel of the former bed, would have had to cross the river twice, by bridges or otherwise. And it is really because the land which the petitioners desire to take, has thus been made available to them, at less expense than it would otherwise have been, that the respondents insist upon the rate of compensation which has been allowed to them.

The situation of hills and streams often determines, as a matter of necessity, where a public road must be built. If it must go through some narrow pass, where the land is owned by one person, he must be made to give up his land for the public benefit. All that he can have is compensation. Now, if the railroad company are to pay what the piece of land is worth for railroad purposes,” and if the road must be built through that pass, then they must pay any sum which the prospects of a successful railroad will warrant; For the land would be worth for railroad purposes ” any sum, however large, which would not actually prevent the building of the road. Such a rule would do away with nearly all the benefit of the compulsory power of eminent domain. It would be giving more than compensation.

The doctrine laid down in Black River & M. R. R. Co. v. Barnard (16 N. Y. Sup’m Ct., 104), applies exactly to the present case. It is the detriment to the owner for which he is to be compensated. When that has been ascertained, he is not to be paid more, because the land is peculiarly adapted to the use of a railroad. If such a rule were to be applied, then the contrary would follow. That is, the railroad company would be entitled to take the land for less than its compensatory value to the owner, upon showing that it was not adapted to the use of a railroad, and that the construction of the track over it would be unusually expensive.

The finding of the commissioners that this land is worth $5,000 for railroad purposes, cannot mean that it was of that value to the respondents; because they do not require it at all. It seems tornean that the petitioners are obliged to have the land, and would better pay $5,000 than not build their road. That is unjust.

•Possibly it may mean that the respondents, some time ago, spent a large amount in constructing their track, and by doing this made the channel bare, and thus rendered it cheaper for the petitioner to build their track than it would otherwise have been; and that, for this reason, the petitioners ought to contribute to the expense paid many years ago. But this is not reasonable. The land which is to be taken is of no value, practically, to the respondents. After building their track, if they had sold the piece of land for which "they had no use, it would not have brought over $50 per acre. And, after such a sale, if the petitioners had attempted to acquire part of it from such purchaser, by proceedings of this nature, they would not have been required to pay such purchaser for the expense laid out by the respondents in building their track. Nor .should the petitioners pay these respondents for that expense.

The appraisal and report and order of confirmation must be reversed, and the matter sent back to the Special Term to appoint -new commissioners.

Present — Learned, P. J., Bockes and Martin, JJ.

Award of commissioners reversed; matter sent to Special Term to appoint new commissioners; costs to abide event.


author: Learned, P. J.: Hookes, J.:

text:
    ANDREW J. WILLIAMS, Respondent, v. ROBERT CASSADY and JAMES CASSADY, Appellants.

      Costs — defendants interposing separate answers by /different attorneys are entitled to separate bills of costs, except when the defendants sever their defenses simply in order to increase the costs — right to separate bills of costs, how decided.

    Where, in an action brought against several defendants, each appears by a separate attorney and interposes a separate defense, and all succeed in'their defenses, each of them is, under section 305 of the Code, entitled to a separate bill of costs, unless the severance be made in bad faith and for the purpose of increasing the costs. (Allis r. Wheeler, 56 N. Y., . 50, distinguished.)
    In this action, brought against the. defendants as copartners, each appeared by a separate attorney and served a separate answer. The defendant Robert, who resided in this State, appealed by a Mr. Sawyer. The defendant James, who was a non-resident, having left the State to avoid his creditors, and having no property herein subject to attachment, was served by publication and appeared by a Mr. Day. The notice of the retainer of Mr. Sawyer for Robert, was in the handwriting of Mr. Day, and the answers were identical; that of James being copied and verified in the office of the attorney for Robert.

      Held, that the severance of the action was in bad faith, and that but one bill of costs should be allowed to the defendants.
    Where an application is made by defendants who have successfully interposed separate defenses, to have separate bills of costs taxed, under section 305. of the Code, the clerk has no power to refuse to allow them so to do, on the ground that the separate defenses were unnecessarily and collusively interposed. The remedy of the party aggrieved is to apply to the court by amotion, for the relief sought. (Per Bocees, J.)
    Appeal from an order made at Special Term, setting aside and vacating tbe several judgments entered herein in favor of the defendants, for separate bills of costs, and directing the taxation of one. bill of costs in place thereof.
    This action was brought against the defendants as copartners and joint debtors for work, labor and services rendered, moneys paid, laid out and expended, and goods sold and delivered to them, by the plaintiff.
    James Cassady was, at the time of the commencement of the action, and still is, a non-resident, having fled from the State to avoid his creditors. The summons was served upon him by publication. At the commencement and during the pendency of the action James Cassady had no property in his own name within the State, having-at the time of his flight put all of his property into the hands of his brother, Robert Cassady. Robert Cassady retained William H. Sawyer, Esq., as his attorney, and answered the complaint, denying all its allegations and pleading payment. The retainer of Mr. Sawyer was indorsed upon the copy of the summons and complaint, served upon Robert Cassady, and was in the handwriting of II. W. Day, Esq., another attorney, who upon the completion of the service, by publication, appeared and served an answer in behalf of James Cassady, which is almost exactly identical in form and vei’biage,, mutatis mutandis, with the answer of his brother Robert Cassady. and which was drawn and copied in the office of Mr. Sawyer, by his managing clerk. The case was tried before a referee. The. trial was conducted on behalf of both defendants by Mr. Sawyer,, the attorney for the defendant Robert. No testimony was presented on trial on behalf of James Cassady, individually. The referee, reported in favor of the defendants, and judgment was entered thereon. Under objection of the plaintiff, the clerk taxed separate bills of costs in favor of the defendants. The plaintiff then moved to set aside this taxation, and an order was made vacating and setting aside the same, from which the defendants appealed.

      William H. Sawyer, for the appellants.

      L. W. Russell, for the respondent.
   Learned, P. J.:

The case of Allis v. Wheeler (56 N. Y., 50), while it overrules the case of Daniels v. Lyon (9 N. Y., 549), does not seem to touch the present question. The opinion holds that section 306 of the old Code establishes “ the conditions upon ivhich one or more of several ■defendants might recover costs against a plaintiff who should recover against other defmda/nts.” And such is the clear meaning of that section. The words “ where the plaintiff fails to recover judgment against all,” do not mean where the plaintiff fails to recover judgment against any.” They mean where the plaintiff recovers against one and not against all. With reason: because there the plaintiff has shown that he has some right of action. Therefore the question of costs is discretionary.

In the present case the question rests, not on section 306, but on sections 304 and 305, and the law applicable thereto. In Atkins v. Lefever (5 Abb., N. S., 221), the defendants had appealed by the same attorney. The court expressly refused to pass on the rule which should prevail if the defendants should sever.

Section 303 explains that costs are sums allowed to the prevailing party by way of indemnity of his expenses in the action. In the present case the defendants were not partners, as has been found by the referee. The plaintiff sued them as partners on an alleged joint liability. Each had a right to defend. They were under no obligation, either at law or in fair dealing, to unite in their defense. If A. and B., having, in fact, no joint or common interest, are sued as jointly liable, neither of them is bound to intrust his defense to the attorney selected by the other. One may defend in person. If costs are to indemtiify, why should not each be entitled to the indemnity? If not, which is to be indemnified? We see no reason why section 805 does not give, in such a case, costs to every defendant appearing and answering separately in good faith.

It is not necessary to say that this view would authorize two per-sons actually partners to sever in their defense, and to recover separate costs. A severance by partners might be so evidently in bad faith that it could not be permitted. Because a partner who retains ;an attorney in an action against the firm may be said to retain him .for all of the firm.

In Albany & W. S. R. R. Co. v. Cady (6 Hill, 265), the defend•ants had appeared by the same attorney, and had filed separate ■pleas. The action was for tort. The court said that so far as torts were concerned, the case was substantially as though both defendants were acquitted. That they could tax only one bill, but ■that both should recover for the sepcvrate services, viz., for the -pleas.

In Ten Broeck v. Paige (6 Hill, 267), two defendants had appeared by different attorneys. The action was tort. It was held ■that each was entitled to a full bill of costs, so far as the services were separate. But as to the services which were alike for both, ■there should be but one taxation. The court speaks of the severance as having been without any improper motive. See also the ■following ease in the same volume.

It is true that these were cases of tort; but there seems to be no ■difference in principle between tort and a case where, in an action -on contract, there is in fact no joint interest between the defend.ants. This last case is recognized in Perry v. Livingston (6 How. Pr., 404), which was an action on contract. There the court said ■that defendants who succeed and who have severed in the defense, .•and appeared by separate attorneys, are entitled to separate bills of 'costs. But in that case such separate bills were refused on the aground that there was not a bona fide separate appearance. (See also Collomb v. Caldwell, 5 How. Pr., 336.)

The present case is not an action in equity ; therefore the report -of the referee that the defendants recover costs is of no force. '"They are entitled to costs, or not so entitled, according to rules of Saw, and not according to the judgment of the referee.

It seems to us, therefore, that defendants who sever in their defense, and all of whom succeed, are entitled to several bills of costs, unless, however, such severance be in bad faith and to increase costs. Thus, if persons actually partners should sever in defending-an action on a partnership liability, or if one defendant should .defend by an attorney, and another by the attorney’s clerk, these-would be cases of bad faith.

In the present case James Cassady was a non-resident, having-gone from the State to avoid creditors. All the property was in the hands of Hubert Cassady, the other defendant. The summons-was served on James by publication. There could be no personal service against him, and there was no property subject to attachment. At least this is a fair conclusion on a comparison of the affidavits. The retainer of Mr. Sawyer for Hobertis in the handwriting of Day, the attorney for James. The answers are identical. That of James was copied and verified in the office of the attorney for Robert. The attorney for J ames stated that he received a letter from James about April 15, requesting him to appear. Hut he-does not state that he had not himself personally written to James. Taking all these matters into consideration, and seeing the uselessness of this severance, or, perhaps, of any defense by Janies, we do not think that the severance of the defendants was in good faith.

The part of the order appealed from should be affirmed, with $ 10-costs, and disbursements.

Follett, J., concurred.

Hookes, J.:

The defendants had the right to appear by different attorneys,, and interpose separate defenses; and having succeeded on the trial, they were entitled to separate bills of costs under section 305 of the Code, as matter of law, subject, however, to the power of the-court to confine them to one bill in case it should be made to appear that they had made their separate defenses collusively to enhance costs. The exercise of this power by the court, for collusion and fraud on the practice of the court, has been indulged during a long-period of time, notwithstanding the peremptory language of the» statute awarding costs to successful parties. It lias for its basis au alleged fraud upon tbe law giving costs. By the record in this-case as it stood when the costs were adjusted by tbe clerk, tbe defendants, having interposed separate defenses, were entitled to-separate bills ; not because the referee had so awarded costs, but because under section 305 of the Code they were entitled to the costs of their separate defenses as matter of law (Board of Supervisors v. Bristol, 58 How. Pr., 3). But it was open to the plaintiff to> move the court for an order limiting the defendants to one bill, on. the ground that the separate defenses were interposed unnecessarily and collusively; that the practice adopted was unjust, and a fraud, upon the law. The clerk had no right to determine this question» He could exercise no judicial power in granting or refusing the costs of the action to any party. The suggestion to the contrary in Haye v. Robertson (38 N. Y. Super. Ct. [6 Jones & Spencer], 59), is, as I think, untenable. It was for the party alleging collusion to move the court for the relief he desired to obtain; the case on the record standing against him. The decision of the Special Term in this case, to the effect that before the defendants could have their separate bills taxed by the clerk they must obtain an order from the court permitting it, was erroneous. The decision of the Special Term was put on this ground only. If the case came within the purview of section 306 of the Cede, the rule would be as declared by the Special Term. But it is shown in the opinion of Learned,, P. J., herein, that section 306 has here no application.

The question whether the separate defenses were collusively interposed, in this case, to enhance costs, was not considered by the Special Term. Such, however, being the real and true question presented by the motion, this court should now examine it, to the end that the merits of the motion be determined by a proper order» Then is it made to appear satisfactorily on the papers submitted,, that the defendants unlawfully and collusively severed in their defenses simply to enhance costs ? I have had great difficulty in joining with my brothers Learned and Follett, in giving an affirmative answer to this question. As above stated, each had the right to employ his own attorney. They were not jointly liable on the claim on which they were prosecuted. This fact was established on. ■the trial. They were not united in interest in their defenses. They were brothers, it is true, but when sued, they had no joint business relations, although they had been at a.previous time in business together; and it is claimed that the circumstances attending the -copying and service of the answers from the office of the attorney ■for one of the defendants, are shown to have been matters of mere accommodation between the attorneys. As it seemed to me, this case was unlike one wherein separate defenses were interposed by the same attorney; or wherein attorneys who were partners each answered separately for different defendants; or where the attorneys occupied the same office; or where one attorney answered for •one defendant, and his law clerk answered for another. In such -cases collusion to obtain double costs may well be inferred; and such are the circumstances attending most of the cases in the books wherein defendants, who interposed separate answers by different attorneys, have been limited to a single bill of costs. The cases Tearing on this question are nearly all cited in Atkins v. Lefever (5 Abb. Pr., N. S., 221-2). For cases not there referred to, see Pierce v. Brown (40 N. Y. Super. Ct. [Jones & Spencer], 399), and Milligan v. Robinson (58 How. Pr., 380). The last case cited is not in point, however, as that was an equity case, and the referee had awarded costs to the defendants; the granting or withholding costs resting in his discretion. In order to defeat the defendants’ claim to separate bills, it must be made to appear that the separate defenses were interposed eollusively, simply to enhance costs. This is the question here, and my brothers Learned and Fqllett have reached the conclusion, that the separate defenses •were in this case so interposed; and with that conclusion I am inclined to concur; but not without hesitation and some reluctance. It cannot be denied that there are some facts and circumstances on which this conclusion may be based.

Present — Learned, P. J., Bocees and Follett, JJ.

Order affirmed, with $10 costs, and disbursements.


author: Bookes, J.: Follett, J.,

text:
    MARY E. HILL, Appellant, v. THE HARTFORD ACCIDENT INSURANCE COMPANY, Respondent.

      .Accident insurance policy — when death is not occasioned by external and violent means — construction of a proviso excepting from insurance deaths caused by poison.

    The defendant issued a policy of insurance upon the life of one John A. Hill, in the sum of $2,000, to be paid to the plaintiff, his wife, upon proof that the insured “ shall have sustained bodily injuries effected through external, violent and accidental means within the intent and meaning of this contract, and the conditions hereto annexed, aucl such injuries alone shall have occasioned death. . . . Provided always, that this insurance shall not extend ... to any death or disability which may have been caused wholly or in part .... by the taking of poison . . or by suicide, felonious or otherwise, sane or insane.” In the course of his business, Hill, who was a physician and surgeon, mixed some poison with water in a goblet, and thereafter, mistaking the mixture for pure water, and without any intention of taking his life, drauk it, and subsequently died from its effects.
    In an action brought by the plaintiff upon the policy,

      Held, that the death was not “effected through external, violent and accidental means,” as those terms were used in the policy.
    That the proviso, excepting from the insurance a death caused ‘ ‘ by the taking of poison,” was not limited to cases of intentional self-poisioning, but included all cases in which the death was so caused. (Follett, J., dissenting.)
    Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of tbis action by tbe court without a jury.
    Tbe action was brought upon a policy of insurance 'issued by tbe defendant on December 17, 1874, upon tbe life of one John O. Hill, in tbe sum of $2,000, payable in cáse of loss to tbe plaintiff, bis wife. Tbe policy provided that tbe said sum should be paid “within ninety days after sufficient proof that tbe insured at any time within tbe continuance of tbis policy shall have sustained bodily injuries effected through external, violent and accidental means within tbe intent and meaning of tbis contract, and tbe condition hereto annexed, and such injuries alone shall have occasioned death within ninety days from tbe happening thereof. . . . Provided always that tbis insurance shall not extend to any bodily injury of which there shall be no external and visible sign; nor to any bodily injury happening directly or indirectly in consequence of disease, nor to any death or disability which may have been caused wholly or in part 'by bodily infirmities or disease existing prior or subsequent to the date of this contract, or by the talcing of poison / .... and no claim shall be made under this policy, where the death or injury may have been caused by duelling, fighting, wrestling, lifting, or by over-exertion (or by suicjde, felonious or otherwise, sane or insane), or by sunstroke,, freezing, or self-inflicted injuries.”
    The judge before whom the action was tried, found “ that the said John 0. Hill, within the continuance of the Policy, accidentally took poison, by drinking the same in water from a glass in his own hand which caused cramps, spasms, rigidity of the muscles, locking of the chest, and blackening of the face before death, and was the sole cause of death, and he died by reason of taking of said poison within a few hours after the taking of the same. That when he took it he was well, and did not knowingly or intentionally take the poison. That he did not know he was taking poison when he took it, that he did not intend to commit suicide when he took it, that he took it accidentally and without any knowledge or intention of taking the same. That there were no external or visible signs of injury except the blackening in the face and the apparent rigidity of the muscles, cramps and locking of the chest. And that the said Hill sustained no bodily injuries effected through external, violent and accidental means. That the plaintiff is the payee named in the policy. That proofs of the death were duly served on the company on February 14, 1875.”

      Charles Q. Day, for the appellant.

      Orlow W. Chapman, for the respondent.
   Bookes, J.:

We are of the opinion that this case was properly decided by the learned judge before whom it was tried.

The policy provided for indemnity against 'two classes of accidents; one which should occasion the death of the insured within ninety days from the happening thereof; the other against injuries ■which should prevent him from the prosecution of his ordinary business. The claim in this case is made by reason of an accident which occasioned death.

It was provided in the policy of insurance, that payment in such ■case could be required only on sufficient proof, that the insured “ sustained bodily injuries effected through external Violent and accidental means;” and that .such iinjuries--alone “occasioned ■death,” and it was also declared that the insurance should not expend to cmy death caused by the “ taking of poison.”

The insured died suddenly from taking poison. He took it by-mistake. He took it without knowing that he was taking poison, ■and without any intention to take poison or to do himself an in • jury, and the taking of the poison, or its action was the sole cause ■of death. His death, as we think, must be deemed to have oc■curred through accident or through accidental means.

Then was the injury which “ occasioned death ” effected through external and violent means ? Yf e think not. The injury was effected ■(caused) through the action of the poison internally. Death was not caused by any external act; nor by anything acting externally, and certainly not by any violent external means. This view of the case is supported too by the decision in Bayliss v. Travellers’ Ins. Co. of Hartford (MS. opinion of Benedict, J.).

But the case is made unanswerably in favor of the defendant, as we think, inasmuch as the insurance did not extend to and cover a case of death “ caused by the taking of poison.” Here the death of the insured was undeniably so caused. This was the sole cause of his death, and death so caused was excepted from the policy in express terms. That the poison was taken unintentionally can make no difference in giving construction to the exception. This fact made the cause of death in this case accidental; hence the necessity of the exception in case the insurance was to extend to and ■cover this pai-ticular accidental cause. Nor is the exception limited to cases of intentional self-poisoning. That it was not intended to 'be so limited is manifest from the fact that there is another provision in the policy, which declares that no claim could be made under it, where the death or injury shall have been caused by suicide, felonious or otherwise, sane or insane.

We are of the opinion that the judgment for the defendant must be affirmed.

Learned, P. J., concurs.

Follett, J.,

dissenting:

The insured was a physician and surgeon, and insured as such. In the course of his business, he mixed poison and water in a goblet, and afterwards, mistaking the mixture for water, drank it, from the effects of which he shortly died.

It was a case of accidental poisoning, as found by the court, but the court held, as a matter of law, that the accident was not covered by the policy.

The policy is termed a General Accident Policy,” which name was selected and applied by the defendant as fairly descriptive of the contract, and undoubtedly with the intent to induce the belief that such was the character of the instrument. General terms intended to characterize an instrument with the public, and printed in large type for the purpose of arresting attention, should have great weight in the construction of limitations and provisos inconsistent with the general terms.

The centra] idea of the policy is partial indemnity against loss by accident. Such was the understanding of the insured when he purchased it, and that such would be its effect, the insurer intended that the insured should understand.

“ To reach and carry the intention of the parties into effect, the law, when it becomes necessary, will control even the literal terms of the contract, if they manifestly contravene the purpose; and many cases are given in the books in which the plain .intent has prevailed over the strict letter of the contract.” (2 Kent Comm., 554, 555.)

The engagement (aside from the provisos), is to pay the sum specified in the policy, if the insured within a time limited die from bodily injuries effected through external, violent, and accidental means, within the intent and meaning of the contract and the conditions hereto annexed.”

The defendant claims that it is exempt from liability under-the policy on three grounds: (1) That death was not effected, through external means. (2) That death was not effected through violent means. (3) That the death is within the following proviso: “ Provided always that this insurance shall not extend to any bodily-injury . . . or death . . . caused . . . bythetakingof poison.”

External is exterior, visible, apparent; (Webster). Means is that, which is used to effect an object, and in the sense used in the-, policy, is synonymous with cause.

Internal means are causes occurring and operating within the-body of the insured, and effecting death by unapparent and invisible means or causes. Such risks are not assumed under the. policy.

External means are exterior, visible and apparent means, or causes. Mistaking the poison for water, drinking it, and its action on decedent’s system was the means or cause of death. The means, or cause, was partly external and partly internal. The mistake, and the act of drinking were external, visible, and apparent ; the immediate action of the poison was internal, though external as well as internal in its effect.

The court finds that the poison caused “ cramps, spasms, rigidity of the muscles, locking of the chest, and blackening of the face before death.” It killed the insured. The accident (as before-stated), consisted in mistaking poison for water, and from this accident, this means, this cause, death ensued. The accident was external ; the injury is not the accident, the means, or the cause, but the result. (Southard v. Railway Passenger Assurance Co., 34 Conn., 574.)

Exhibitions of physical force, have, through fright, caused death,, though the victim was untouched.

The effect may be said to be internal, but the means, the cause,, is apparent, visible, external, though operating internally as well as externally. We cannot divide in twain the whole-continued cause, or means, and say the defendant is not liable because part of the cause, and its most immediate effect, was internal.

In the language of the policy, the cause of death was not unknown, or incapable of “direct and positive proof.” It was in-tended by this language to exempt the defendant from liability for injuries arising by accident within the system without an externalnpparent, visible, violent, and accidental cause, but not to exempt .it from liability for such internal causes of death as are directly •traceable to external, visible, apparent, violent, and accidental means. (Fitton v. Accidental Insurance Co., 17 C. B. N. S., 122.) In Reynolds v. Accidental Ins. Co. (18 Weekly Rep., 1141; 22 Law Times, 820), the insured, while bathing in a shallow stream, became .insensible from some internal cause, fell with his face downwards, .and drowned. In Winspear v. Accident Ins. Co. (42 Law Times, N. S., 900; 22 Alb. Law J., 223), the policy insured against “ any personal injury caused by accidental, external, visible, means.” The insured while fording a stream, had an epileptic fit, fell into the ■stream, and was drowned. In both cases, the deaths were held accidental, occasioned by external and visible means. The mistake, the accident, was the immediate cause of death, within the meaning of the policy, though the operation of the poison intervened, and .caused death.

The operation of the poison, flowing as it did in this case, immediately, and with absolute certainty from the mistake, or accident, the mistake, and the operation of the poison are not (upon principle and authority), divisible into primary and seeoinlary causes, but constitute a single, continued cause, and covered by the policy. (Fitton v. Accidental Ins. Co., supra; Reynolds v. Accidental Ins. Co., supra; Winspear v. Accidental Ins. Co., supra; N. A. Life and Accidental Ins. Co. v. Burroughs, 69 Penn. St., 43.) In the case last cited, death occurred from peritoneal inflammation caused by a hay-fork slipping through the hands and striking the abdomen cf the decedent. No external bruise was discovered. The death occurred five days after the accident, and it was held to have resulted from the injury, notwithstanding the intervention of the disease which the insurer claimed was the secondary and immediate cause cf death.

The means were violent; not natural, spontaneous; and not occurring from usual and natural causes. The degree of force or violence is not material. (Southard v. Railway Passenger Assurance Co., 34 Conn., 574.)

Accidental death from drowning while bathing has been held to lie “ death from external violence.” (Trew v. Insurance Co., 6 H. & N., 845, and cases before cited.) If the most violent meaning is to be given to the word “ violent,” bat few cases of accidental injuries would be covered by such policies.

Is the defendant exempt from liability because the insured died “by_the taking of poison”? A proviso is to be strictly construed .-so as not to take a case within the general terms of the contract, out •of it, unless the case is clearly excepted by the proviso, is within the reason thereof, and within the intent of the parties.

I think the word “ taking,” in this connection, means an intentional taking, either with or without intent to destroy life, and that this phrase is intended to exempt the insurer from liability for accidents arising from the intentional use of poison. Such, I think, was the understanding of the parties.

If the insured had died from the taking of poison into his system from an accidental cut in a dissecting or operating room, or from taking poison into his system from the bite of a venomous serpent, neither would, perhaps, have been within the technical meaning, nor within the popular meaning of death by taking poison, and, therefore, not excluded by the proviso from the risks insured .against. In the construction of statutes and contracts, the ordinary and popular meaning is to be given to words and terms employed. (Schriefer v. Wood, 5 Blatchf., 215; Jackson v. Topping, 1 Wend., 388; Sedgwick on Stat. and Const. Law, 2 ed., 225; Potter’s Dwarris, 193.) If the case at bar is excluded from the policy by the •exception, I think the two supposed cases would be ; for the liability in such instances cannot be dependent upon the introduction of poison by methods other than swallowing.

Policies exempting insurers from liability in case of the death of the insured by suicide or by his own hand, are construed to mean intentional suicide, or intentional death by his own hand, by a sane person, capable of having and carrying into effect a rational intent. Bayles v. Insurance Co. (14 Blatchf., 143) is not germain to -any question arising in this contention. In that case, the policy -exempted the insurer “ from liability for death or disability caused wholly or in part by medical treatment for disease.” Death was. caused by taking opium. It was not taken accidentally, but intentionally, upon tbe prescription of a physician in the course of “ medical treatment for disease,” and the decision is placed upon that ground.

This policy is not a compact, but a unilateral obligation, which is to be taken most strongly against the party executing it. This-has been the rule for the construction of such instruments since deeds poll were first used (2 Blacks. Comm., 308); and it has? usually been followed in construing policies of insurance, notices-issued by express companies, 'telegraph companies, and common-carriers. From the whole instrument, read in the light of the object to be attained, I cannot doubt that the true intention of the? parties was to provide compensation in case of death from such an accident as occurred to the decedent. Policies of insurance should bo liberally construed, so as to carry into effect the intention of the parties, and save, instead of destroying the contract.

“ When the terms of a promise admit of more senses than one,, the promise is to be performed in that sense in which the promisor apprehended at the time that the promisee received it.” (2 Kent Comm., 557.) -The judgment should be reversed, and a new trial granted, costs to abide the event.

Present — Learned, P. J., Bocees and Follett, JJ.

Judgment affirmed, with costs.


author: Bookes, J. : Learned, P. J.,

text:
    SARAH MITCHELL, a Lunatic, &c., Respondent, v. EDWARD Y. BARNES, Appellant, Impleaded, &c.

      1Receiver pendente lite — when one may be appointed in an action to set aside a conveyance of real property.

    This action was brought by the plaintiff, as the committee of one Sarah Mitchell, to have certain conveyances of real and personal property, made by her to the defendant, adjudged void and set aside, on the ground that the defendant, knowing that the said Mitchell was of unsound mind and incapable of managing her affairs, fraudulently induced her to transfer th® said property to Mm without receiving any consideration therefor. In 1878 the said Sarah Mitchell was found by an inquisition to be, and for the past eight or Mne years to have been, of unsound mind, and incapable of managing her affairs. The defendant, who was wholly insolvent and had been in possession of the property, and collected the rents and profits thereof, from the time the conveyances were made, in 1870 and 1871, denied that he obtained the conveyances by duress, undue influence, or by means of any trick, unlawful or fraudulent practice, and alleged that they were voluntarily executed and delivered by the grantor in the exercise of an unfettered will and an unclouded reason.

      Meld, that the case was a proper one in which to appoint a receiver pendente lite. (Learned, P. J., dissenting.)

      (Boches v. Lansing, 74 N. Y., 437, and Van Deusen v. Sweet, 51 Id., 378, — distinguished.)
    Appeal from an order made at Special Term, appointing a receiver of certain property, both personal and real, described in the complaint in this action.
    The property is alleged to have been obtained by fraud and coercion and without consideration, by the defendant and appellant Barnes, from the plaintiff Sarah Mitchell, after she had become and when she was a lunatic and of unsound mind, in 1870 and 1871. The personal property was convoyed, by parol gift with part delivery ; the realty, in parcels, by warranty deeds purporting to have been given upon paid considerations, amounting to $24,000 ; no part' of which had been in fact paid.
    The plaintiff sought to have the transfers adjudged void and the deeds canceled of record, and the property, both personal and real, restored; and for an accounting and a judgment for the rents and profits of the realty, and for such of the personalty as could not be restored, against Barnes; and that his wife, who was joined as a defendant with him in the action, be adjudged not entitled to dower in any of the realty. It was also alleged that Barnes was insolvent, and that unless a receiver was appointed, the rents and profits from the realty, during the pendency of this action, would be lost to the lunatic. It was also alleged that proceedings had been had, whereby it was found and adjudged that Sarah Mitchell, on May 1,-1878, was, and continuously for nine years theretofore had been, a lunatic and of unsound mind, incapable of the government of herself or the management of her affairs; and wherein the plaintiff, John W. Mitchell, was appointed her committee, who,. upon qualifying, made demand of Barnes for the relief sued for in this action, which was refused.
    Upon a motion for the appointment of a receiver, the defendant made an affidavit, in which, among other things, he said : “that the allegations in the said complaint, charging him with having procured these several conveyances by undue influence, by duress, by means of tricks and devices, or fraudulent practices, as particularly set forth in said complaint, from folio 17 to folio 20, are, and that each of them is absolutely and utterly false in each and every particular and have no foundation whatever in fact; and deponent further says that he did not practice any fraud or deception, or undue influence, or duress in obtaining the said conveyances, but that they were, and each of them was, voluntarily executed and delivered to the deponent by the said Sarah Mitchell, and (as deponent verily believes), in the exercise of an unfettered will and .an unclouded reason......
    “ Deponent further says that he can show by many reputable and reliable witnesses, upon the trial of this action, and that a portion of his defense to this action will be made by showing, that the said Sarah Mitchell, at the time the various transactions mentioned in the complaint are alleged to have taken place, was a woman of sound mind and memory, and entirely capable of transacting business, and was also possessed of unusual shrewdness and mental vigor......
    “ Deponent further says that he came to Lansing from Dutchess county at the request of said Sarah Mitchell; that he learned from her that upon the death of her brother Isaac, with whom she resided, which occurred about the year 1860, an attack was made upon the will of said Isaac, and upon the said Sarah as the principal legatee in said will; that they accused her of procuring such will by fraud and undue influence, and the contest was long and bitter, and carried on against her by the rest of the Mitchell family; that it was finally settled and compromised, but at great expense and loss; that thereupon a new litigation sprang up between her and Ohloe Mitchell, the mother of the committee in this action, as to a partition of the premises; that said contest was bitter and ■ended only in the Court of Appeals ; that said Sarah declared that none of the Mitchell family should have her property, and that she meant to give it to deponent at her death, and meantime allow him to work the lands and receive the proceeds, deponent agreeing on his part, in consideration thereof, to keep a home for said Sarah on said premises, and support and maintain her there during her natural life; that deponent, retying on said promise and assurance, sold out his property in Dutchess county at a sacrifice and came to Lansing to live; that deponent brought with him about $5,000 from Dutchess county, as the proceeds of the sales of the property there, and that the great bulk of said amount has been expended by him in the purchase of stock and implements for said Mitchell farm, and in making permanent improvements thereon; that he supported and maintained the said Sarah until she voluntarily left his house and went elsewhere; that the taxes and insurance and ordinary repairs on said farms, together, with the care, support and maintenance of the said Sarah, amounted to more than the net annual rental value of said farm.”

      F. M. Finch, for the appellant.

      M. Goodrich, for the respondent.
    An inquisition taken and confirmed, pursuant to a commission de lunático mguirendo issued, establishes, prima facie, the lunacy found and the invalidity of the lunatic’s business acts for the previous period covered by the finding. {JDAmourex v. Crosby, 2 Paige, 422; Matter of Patterson, 4 How. Pr., 34; Hcvrt v. Deamer, 6 Wend., 497; Osterhout v. Shoemaker, 3 Hill, 513 ; Demilt v. Peona/rd, 11 Abb. Pr., 252; Fitzhugh v. Wilcox, 12 Barb., 235 ; 2 Kent Comm., 450; Van Deusen v. Sweet, 51 N. Y. 378.) A court of equity has power to» appoint a receiver of property, during the pendency of the action. {Still/well v. Wilkins, 6 Madd., 49; S. C., on appeal, Jac., 280 j also, Chaplm, v. Young, 6 L. T., N. S., 97; 33 Beav. 330 ; Plcmchard v. Ccmthorne, 4 Sim., 572 ; Slocm v. Moore, 37 Penn., 217; Ireland v. Nichols, 37 How. Pr., 222 ; People v. Mayor, c&c., 10 Abb. Pr., Ill; Matter of Cohen, 5 Cal., 494; Miekletlvwaite v. Phodes, 4 Sandf. Ch., 434. And see Code, § 718.)
   Bookes, J. :

Appeal from an order of tbe Special Term, appointing a receiver.

The defendant is right in his statement made in his affidavit, “ that this is not an action of ejectment.” Hence the authorities to the effect that a receiver will not be appointed before judgment in a pure action at law in ejectment, Burdell v. Burdell (54 How. Pr., 91), Guernsey v. Powers (9 Hun, 78), Thompson v. Sherrard (35 Barb., 593), are not in point. Nor has the decision in Bockes v. Lansing (74 N. Y., 437) application here. In that case the court held that the action, being an action to remove a cloud upon the title, could not be maintained because the deeds sought to be set aside “ did not on their face transfer any title as against the plaintiff.” (p. 111.) It is otherwise in the case in hand.

Nor is the decision in Van Deusen v. Sweet (51 N. Y., 378) an authority against the plaintiff’s right of action and claim for a receiver. It was there decided that an action of ejectment might be maintained in a case like the present; but no intimation was there given that full and ample relief in equity against a deed fraudulently obtained might not also be maintained. It is true, the learned chief commissioner there says, that in case of an dbsolntely void deed, one that never had legal existence or vitality, there would be nothing to set aside by the interposition of a court of equity, or by recourse to an equitable action. But it was not intended to assert the doctrine that an action to set aside a voidable deed, one obtained by fraud and improper practice, or by undue influence, from a person of weak intellect ■ or of unsound mind, could not be maintained in equity. If this was intended, it would be a mistaken assertion, in conflict with well-settled principles of equity jurisprudence.

The action in this case is based on purely equitable considerations. It is brought to set aside conveyances voidable at the election of the proper party to assert their invalidity, because fraudulently obtained without consideration from a person of unsound mind. Such is the theory of the action; and a case for the relief demanded is made on the averments of the complaint. Whether they will be sustained on the trial is a different question. The question before us rests upon the papers submitted on the motion for a receiver. •'On these papers it appears that the defendant obtained from the plaintiff, who sues by her committee, a large amount of property, principally real estate, valued at about $20,000, without considera■tion; that the grantor, as is found by inquisition obtained in due form, was at the time of unsound mind, incapable of managing her affairs, to the defendant’s knowledge, and that, independent of -the property so obtained, the defendant is wholly insolvent. These •alleged facts stand on this motion substantially undenied, and with other undisputed formal averments in the complaint, make a proper «case for the appointment of a receiver. It is true the defendant ■denies in general terms that he obtained the conveyances by duress, undue influence, or by means of trick, artifice or fraudulent pracfice; and he asserts that the were voluntarily executed and delivered by the grantor, in the exercise of an unfettered will and an unclouded reason. But there is no denial of the alleged facts that the deeds were without consideration, or that the grantor was, according to the inquisition, a person of unsound mind and incapable «of managing her affairs with judgment and propriety. The inquisition was presumptive evidence of her incapacity. (Van Deusen v. Sweet, 51 N. Y., 386, and cases there cited.) It is also established that the defendant is insolvent, independent of the property charged to have been fraudulently obtained by him, and that the -annual avails and profits derivable therefrom is from $600 to $800, «exclusive of taxes and assessments. It also appears that he has been in receipt of such rents and profits for several years, and has thus been fully recompensed for all repairs and improvements made by •him. As the case was made at Special Term on the motion for a receiver, the order was properly granted.

The order appealed from should be affirmed, with $10 costs, and. •expenses for disbursements.

Martin, J., concurs.

Learned, P. J.,

dissenting :

The appointment of a receiver is, in a certain sense, discretion.ary. But discretion is not without rules. And I must state briefly •why I think those rules have not been observed.

An action of ejectment would lie in this case. (Van Deusen v. Sweet, 51 N. Y., 378.) This present action seeks the same relief as would be obtained in an action of ejectment — that is, the recovery of the land from one who claims to own it in fee. In an action of ejectment a receiver would not be appointed. (Guernsey v. Powers, 16 Sup. Co. N. Y., 78.) By analogy, none should be appointed in this action.

The ordinary rule is that a receiver will not be appointed where' a defendant is in possession under a legal estate. (Edw. on Rec., 24 and cases cited.) This rule is only departed from in cases of fraud, clearly proved and of imminent danger, and strong ground of title-in the plaintiff.

In the present ease the facts in the complaint tending to show fraud, are on information and belief. The only additional facts proved by affidavits on the part of the plaintiff, material to the question of fraud, are to the effect that the defendant paid nothing- and that he said that Sarah Mitchell was a crazy old fool. This, the defendant denies on oath. lie also denies all fraud. And the-only fact which can be said to be proved is, that there was no money consideration. The defendant in his affidavit avers that the-consideration was that he should support Sarah Mitchell during heinatural life. There is also the fact that the jury de lunático found that Sarah Mitchell had been a lunatic for nine years previous. This finding was in 1878. The deeds had been executed in 1870' and 1871. It is true that this is admissible evidence. But any one-who has had any experience knows -how easy it is for those who-conduct such proceedings to procure a verdict which will “ overreach ” any conveyance which the parties conducting the proceedings may desire to attack. Of course, the defendant was no party to the proceedings. It appears, too, by the papers, that there had formerly been some disagreement between Sarah Mitchell, the alleged lunatic, and the parties who now control these proceedings the merits of which cannot be understood till the trial.

We have then, only these facts, that the defendant, in consideration of an agreement to support Sarah Mitchell, received the deeds-in question, and that she was eight years after declared to be, and to have been, a lunatic. Now, the appointment of a receiver takes-away the property from the defendant, who claims to own it in fee, and withholds it from him during the litigation. It decides upon the merits that he is not the owner. And so long as the plaintiff chooses to protract the litigation, the defendant, without a trial, is kept out of property to which he has a legal title. If it is right to appoint a receiver in this case, I see no reason why one should not be appointed in every action of ejectment, where the plaintiff can show that the defendant is poor and irresponsible. I think that courts should be very cautious how they take away from a defendant, without a trial, the possession of land to which he confessedly has a legal title.

I think, therefore, that the order should be reversed.

Present — Learned, P. J.; Bocees and Maetin, JJ.

Order affirmed, with $10 costs, and disbursements.