author: Landon, J. Mayham, J. (dissenting)

text:
    L. H. Baumgartel, Resp’t, v. The Providence Washington Ins. Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Insurance (eiee)—Other insurance—Waiver of teems by agent.
    Defendant’s policy prohibited other insurance under penalty of • forfeiture unless by consent endorsed therein, and also provided that no officer of the company could waive any. conditions of the policy, unless by endorsement of such waiver. Plaintiff met the agent in the street and informed him that he had $1,000 additional insurance, and the agent replied, “All right, I will attend to it,” but failed to do so before the fire-occurred. Held, that it was equivalent to a promise to endorse the proper consent upon the policy, upon which plaintiff had the right to rely, and defendant was liable upon the policy.
    (MXyham, J., dissents.)
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial on the minutes of the judge at the trial.

      I. N. Ames, for app’lt; Dudley & Thorn, for resp’t.
   Landon, J.

—The plaintiff did obtain other insurance upon this property after the date of the policy issued to him by defendant. Such subsequent insurance made this policy void if the defendant’s consent thereto was not endorsed upon this policy, unless the defendant waived the endorsement, or so acted as to be equitably-bound to make the endorsement, or be estopped from taking advantage of the fact that it was not made.

The plaintiff, after obtaining the subsequent insurance, told the defendant’s agent that he had obtained it The agent, then being upon the street, replied to the plaintiff, “All right, I will attend to it.” He failed to attend to it before the fire occurred, and now the defendant claims that that declaration of its agent under the terms of the policy has no effect. I think it was equivalent to a promise to endorse the proper consent upon the policy, a promise upon which the plaintiff had the right to rely, and did rely upon, and which the defendant cannot now repudiate to its own gain and the plaintiff’s loss, and which the defendant is estopped to refuse to perform, and could be compelled specifically to perform, if necessary, but since no such circuity is necessary the law will re.gard as done what the defendant ought to have done and will declare the rights of the plaintiff accordingly and hence hold the present policy valid. Walsh v. Hartford Ins. Co., 73 N. Y., 5, is •cited in opposition. But in that case the agent performed all he promised to perform; the plaintiff’s misfortune consisted in relying upon the supposed legal effect of the full performance of the promise and he was mistaken in that respect.

It is not quite correct to call the transaction between the plaintiff and defendant’s agent a waiver, since that could, under the terms of the policy in respect to further insurance, only be made in writing; but the agent had the power to make the necessary •endorsement in writing and consequently he had the power to make the preliminary oral executory agreement that he would make it; an agreement which must be enforced, or regarded as enforced, in order to prevent a failure of justice. But as it is the duty of the court to declare the legal effect of the transaction upon the lights of the parties, and as it practically amounts to the same result whether called one thing or another, no error to the prejudice of the defendant was committed by the court in speaking of it as a waiver.

Evidence was given tending to show a waiver of proofs of loss within the time fixed by the policy.

The policy being valid, and a loss having occurred, subsequent proceedings are mere procedure to ascertain the amount due plaintiff upon the policy, and the consent of the parties may regulate it, notwithstanding specific regulations in the policy. The plaintiff acted as defendant consented he might, and defendant cannot now withdraw that consent to plaintiff’s injury.

The judgment should be affirmed, with costs.

Learned, P. J., concurs.

Mayham, J. (dissenting)

—This was an action upon afire insurance policy for $1,000, divided as follows: $700 stock of clothes, trimmings and manufactured garments, and $300 on sewing machines, tools, fixtures, wearing apparel, beds, bedding, etc., issued by the defendant on the 26th day of September, 1887, for one year. The policy contained several conditions, among which are the following, under which questions arise in this action:

First. A condition prohibiting other insurance, without the consent of the defendant endorsed on the policy.

Second. Either party has the right to cancel the policy on giving the other party five days’ notice before the cancellation took effect.

Third. Proof of loss must be given by the insured to the company within sixty days after the fire, unless the time is extended by the company in writing.

Fourth. The policy provided that there can be no waiver of any of its conditions except by Written agreement endorsed thereon or added thereto.

On the 12th of April, 1888, the plaintiff procured from another insurance company a policy of insurance for $1,000 on his stock of clothes and trimmings, materials and supplies, used in and incident to his business as a merchant tailor, to run for one year from that date. On the 15th day of August, 1888, a fire occurred which damaged or destroyed the property covered by the policy issued by the defendant.

On the 15th day of January, 1889, the plaintiff served upon defendant papers purporting to be proofs of loss and defendant referred them to the local agent F. E. Morton, and notified plaintiff of that fact, reserving all rights under the policy. On the 28th of January, 1889, this agent of the defendant wrote plaintiff declining to accept them as proof of loss, on the ground that they had not been served within sixty days after the loss, and that •they were imperfect and incomplete, and in that communication stated that he held them subject to the plaintiff’s order. On the conclusion of the plaintiff’s evidence and also at the conclusion of the whole evidence in the case the defendant moved for a dismissal of the complaint upon the ground that the plaintiff had violated the terms of the policy, in procuring further insurance without the written consent of the defendant and in failing to serve proof of loss within the time fixed in the policy; which motion was denied by the court and the case submitted to the jury, who found a verdict for the plaintiff.

The policy contained this clause relating to further insurance:

“ This policy unless otherwise provided by agreement endorsed hereon, or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy." • It seems to be clearly established in the case that the plaintiff did procure other insurance on this property or some portion of the same, and that the consent of the defendant was not endorsed in writing on this policy; this was a valid provision in the policy and one which the defendant had a right to incorporate in it, and to enforce as a part of the contract, and unless-the company by some valid act has waived this condition, its violation by the plaintiff is such a breach as to prevent a recovery in this action on the policy. Allen v. The German-American Ins. Co., 123 N. Y., 6 ; 33 N. Y. State Rep., 216. The plaintiff insists-that this condition was waived by the oral interview had between, the plaintiff and the defendant's agent.

That interview is given by the plaintiff in his testimony* as follows : “ I came out of my office and was on my way to the post-office ; I saw Mr. Ufoung (defendant’s agent), at the corner talking with another gentleman; I walked up to him and said, I have-another insurance out, of $1,000; as I said that he turned tome slightly and said: “All right I will attend to it.”

In examining whether the agent could waive the condition of this policy, we must also look at the condition contained in the last paragraph before its attestation clause, which reads as follows : “ This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements as may be endorsed hereon, or added hereto, and no officer, agent, or other representative of this Company shall have power to waive any provisions or conditions in this policy, except such as may by the terms of this policy be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting-the insurance under this policy exist, or be claimed by the insured unless so written or attached.” The case at bar is in many respects like Pechner v. Phoenix Ins. Co., 65 N. Y., 195 ;• and the learned counsel for the plaintiff cites that as an authority in support of bis contention here. But it does not appear in that case that the policy contained an express prohibition upon all the officers and agents of the company prohibiting them from making any waiver or consent, nor does that case proceed upon the ground of any disability of the agent to contract or waive the conditions of the policy, but rather upon the-ground that as general agent of the company his acts as to the-policyholder were deemed to be the acts of the company.

So, also, in the case of Parker et al. v. Arctic Fire Ins. Co., 59 N. Y., 1, the general agent of the company who issued policies-renewed the policy with knowledge of the increased risk, and his knowledge was deemed that of the company; and having authority to issue or renew policies with a knowledge of the risk, he and the insured could waive the condition that a statement o£ the increased risk must be in writing. The rule that the principal is bound by the acts of its agent within the general scope of his authority, and as to third persons within the apparent scope of his authority, is too elementary to require the citation of authorities. But can that rule be carried to the extent that an agent may bind the principal by his acts when both the agent and the party with whom he contracts have notice that the agent is expressly prohibited from making the contract, or waiving a condition in it? We think not. While it is true that knowledge of the agent is deemed to be knowledge of the principal, yet that rule does not go to the extent that knowledge of the agent amounts to consent of the principal, especially when the agent is expressly prohibited from giving consent that will bind the principal. In Walsh v. Hartford Fire Ins. Co., 73 N. Y., 5, it was held that a principal is only bound by an act of his agent in excess or abuse of his authority when a third person, believing, and having a right to believe, that the act was within the authority, has acted, or refrained from acting, in reliance thereon, and would sustain damage if the act of the agent was not considered that of the principal. In this case, Andrews, J., in delivering the opinion of the court of appeals, uses this language: “ The company could itself dispense with the condition by oral consent as well as by writing * * * 19 N. Y., 305; and Carpenter, unless especially restricted, would have possessed, in this respect, the power of the principal. But the policy contains the provision that no agent of the company shall be deemed to have waived any of the terms or conditions of the polic)r unless such waiver is endorsed on the policy in writing. This is a plain limitation upon the power of the agent, and can mean nothing less than that agents shall have no power to waive conditions except in one mode, viz., by an endorsement on the policy.

The plaintiff is presumed to have known what the contract contained, and the proof tends to the conclusion that this provision was brought to his notice. He saw fit, however, to accept the assurance of the agent that an entry in the register was sufficient. It was difficult to see how, upon the law of contracts and agency, the plaintiff can recover. The entry in the register was. not an endorsement on the policy. The oral contract was an act in excess of the known authority of the agent. The provision was designed to protect the company against collusion and fraud and the dangers and uncertainty of oral testimony. The case seems a hard one for the plaintiff, but the court cannot make contracts for parties; nor can they dispense with their provisions. ”

Applying the doctrine of this case to the one at bar, it is difficult to see how, upon the evidence as it stands, the plaintiff can recover. If we assume that the condition in this policy was not waived, then its terms have been violated by the plaintiff in a-material part which the court cannot disregard and which, by the terms of the policy itself, renders it void. If we undorAke to find that its provisions have been waived we are met with the utter inability of the agent to effect such waiver, within the very letter of the policy. In any aspect of the case we think as the evidence stood the learned trial court erred in not dismissing the complaint on the motion of the defendant. This conclusion makes it unnecessary for us to examine in detail the other questions raised by the defendant as to the sufficiency of the proof of loss. But as the dealings in that regard were .with the company directly, and by them referred to their agent, it may be doubted whether by not writing them at once, or calling attention to the claimed defect, they did not waive the question of delay in the presentation of such proofs. But as a determination of that question is rendered unnecessary by reason of the view we have taken of the other questions we refrain from determining the question-raised as to proof of loss. The judgment, I think, must be reversed upon the other question.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Landon, J.

license: Public Domain

text:
    Anna Davis, Resp’t, v. Frances A. Noyes, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Limitation—Acknowledgment.
    To constitute an acknowledgment sufficient to take a claim out of the statute the writing must recognize an existing debt and contain nothing inconsistent with the intention to pay it.
    2. Same.
    Letters repudiating a claim for a loan, but acknowledging an agreement to make good to the one addressed a loss met with through the writer’s advice in relation to the purchase of stocks and stating that the agreement, would be performed, is not an acknowledgment of the claim within the meaning of the statute.
    Appeal from a judgment entered in Montgomery county upon the report of a referee.

      Orin Gambell, for app’lt; Mead & Hatt, for resp’t.
   Landon, J.

—The statute of limitations is a bar to the plaintiff’s recovery, unless the letters of the defendant contain an acknowledgment of the defendant’s indebtedness or a promise to-pay it. Code Civ. Pro., § 395. The writing must recognize an existing debt, and contain nothing inconsistent with the intention to pay it. Manchester v. Braedner, 107 N. Y., 346; 12 N. Y. State Rep., 263.

The parties were intimate friends and were amateurs in stock speculation. On the 25th of July, 1882, the defendant had on deposit $535 with Spencer Trask & Go., their stock brokers. On that day she called upon the plaintiff with a copy of the Wall Street News. That sheet contained an article predicting a rise in the C., C., C. & I. R. R. Co.’s stock. The parties relying upon the prediction agreed to buy together 100 shares of the stock. The defendant thereupon ordered the stock in her own name, paying $500 margin. The price of the stock kept falling and $1,300 more margin was paid, of which the defendant paid $300, and the plaintiff handed the defendant $1,000, which the defendant also applied. Whether $500 of this sum was a loan to the defendant, or whether the plaintiff contributed the whole $1,000 as margin, was in issue upon the trial and decided in favor of the plaintiff. The transaction was closed October 14, 1882, resulting in a loss ■of $1,000. The $800 surplus of the margin was received by the defendant and used by her in further stock speculations upon the joint account of both parties. These further speculations do not appear to have been profitable, and although the fact is not distinctly found, the $800 and a little more were probably lost

The plaintiff grieved over her loss, and the defendant in 1886 promised to pay her $500 upon account of it when she should receive her inheritance; the defendant accusing herself of blame in trusting to the misleading prediction of the Wall Street News.

Subsequently the parties engaged as partners in the millinery business in Amsterdam, H. Y. They lived in the same apartments, and it would appear that the defendant occasionally made small ventures in stock and oil speculations. August 6, 1888, they dissolved their partnership, the defendant selling out to the plaintiff, and upon a full accounting of their partnership affairs the plaintiff gave the defendant a note for $500. The plaintiff remained in Amsterdam and the defendant took up her residence in Lansingburgh. The referee found that this action was commenced more than six years after the cause of action accrued. He also found that on the 25th of August, 1882, the plaintiff loaned the defendant $500. He did not in terms find that the defendant made a subsequent promise to pay or acknowledgment of ■ the debt, but he refused to find that she did not

On May 10, 1889, the plaintiff wrote to the defendant: “I wish to speak to you about my note for $500, which will become due in August. You will remember that I drew $1,000 from the bank before we came to Amsterdam, and let you take it to buy O., C., 0. & I.,- $500 for yourself and $500 for me. As you know, the whole amount was lost, and you always said that when you got your inheritance you would make your part to me good, so that the whole loss might not fall upon me, since it was through you that the money was used at all. I did not ask you to give me your note for the amount, trusting to. your honor. * * * I think it would be only fair that you return me the note and call the matter square.”

The defendant replied the same day: “Your letter has this moment arrived, and I am more than surprised at the contents. * * * Stunned to death as I am, I still say you may indeed count upon my honor; that will never fail; and I should comply at once with your request and send you the note only that I am wholly unable to do so at present * * * I will do just as I said about the three C’s money, although I hold myself by every method of reason and argument wholly free.”

May 11, 1889, the plaintiff writes: “ I don’t know what method of reasoning you use to argue yourself wholly free about the three C’s money.”

May 12, 1889, the defendant writes: “As to the three C’s money, you know it was never thought of as a loan; consequently the idea of a note never entered into the arrangement I was taking the Wall Street News and we were dealing in stocks. * * * When I brought the paper down to you we both felt impressed with it. I grant I made the proposition, * * * and as it was my proposition, I made the offer of my own free will, and I never go back on my word, so I am just as determined as ever to carry out my proposed plan and pay one-half of that loss.”

Under date of May 16, 1889, defendant writes: “As to the three C.’s it is a debt of honor, and shall be paid.” And under date June 3, 1889, first stating that she had found the brokers’ letter and a memorandum of tier own, defendant writes: “Referring again to the three G.’s, . * * * I find it went out on a stop at 75; that when the market continued dropping I put on 100, then 300 that I borrowed from Judge Parmalee, and after that 200 of store money, and then let it go. So you see that when I have paid you 500 as one-half of your 1,000, that my loss will be 1,100 to your 500. Now, I am not finding fault, neither do I wish to be excused from paying you what has been agreed upon."

The correspondence from which the above extracts are made is-voluminous. Other extracts could be added of the like purport.

The letters speak for themselves. No reference to oral testimony ' is necessary, further than to enable us to understand what is the subject matter treated upon.' The meaning of the letters is not affected by the referee’s finding that the $500 was a loan. We are to construe them in the sense in which the defendant wrote them. They are unmistakably to the effect that the-defendant did not borrow the $500. The letters repudiate that claim. But they contain her acknowledgment that, because she-had induced the plaintiff to engage with her in the purchase of . the stock upon the prediction of the Wall Street News, she would make good to her half of her loss; that was what - she had said and agreed to, and still meant to do. Such an acknowledgment does not meet the requirements of the statute.

The judgment is reversed, referee discharged, new trial granted,, costs to abide the event

The defendant made a motion for a new trial upon newly discovered evidence. The motion was denied and the defendant ap- " pealed, and that appeal is also before us.

We affirm that order, with costs.

Learned, P. J, and Mayham, J., concur.


text:
    Maria Ten Eyck and Cornelius H. Slingerland, App’lts, v. Catherine A. Witbeck et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Deed—Recobd-
    One T. conveyed a farm worth $20,000 to Ms wife tM-ough an intermediary for a consideration of $100, which was never paid, but the fact of such conveyance was not divulged nor the deed recorded for many years. Subsequently T. conveyed the same farm to Ms daughter, the defendant,, in consideration of the payment of ten dollars and the payment annually of the net profits thereof to himself and Ms wife and other daughter in certain proportions during their respective lives. This deed was recorded prior to the one first mentioned, and the defendant had no notice of the prior deed. Reid, that defendant was a purchaser in good faith and for a. valuable consideration, and that her deed, having been first recorded» must prevail.

      ■ Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury upon the trial at the Albany circuit.

      J. H. Clute and N. C. Moak, for app’lts; M. Hale, for resp’ts.
   Landon, J.

—The complaint was in the nature of ejectment, ■although framed as in equity. Both parties claimed title to a farm in the town of Coeymans, Albany county, Peter W. Ten Eyclc being the common source of title.

On September 21, 1871, Peter W. Ten Eyck conveyed the farm through an intermediary, John H. Carroll, to his wife, Elizabeth Ten Eyclc. The deeds of conveyance were acknowledged on that day and delivered, but were not recorded until January, 1883. The deeds expressed a consideration of $100, but none of it was paid. The farm was worth $20,000. Mr. and Mrs. Ten Eyck had two children, the plaintiff Maria, and the defendant Catherine, wife of Peter A. Witbeck. Mrs. Ten Eyck, at the time of her marriage with Peter Ten Eyck, which occurred in 1835, had a son of a former marriage, Cornelius H. Slingerland, then nine years of age, now one of the plaintiffs.

Mr. and Mrs. Ten Eyck had lived all their married life upon the farm, Cornelius living with them as a member of their family. He continued to live with them until he was forty years of age. He was industrious, and after he attained his majority substantially took charge of the farm and of his step-father’s business.. There is some evidence to the effect that Mrs. Ten Eyck brought to her husband $3,000 in money. After the deeds were made, Mr. and Mrs. Ten Eyck and their family lived upon the farm as before. The fact that Peter Ten Eyck had conveyed the farm to his wife was not divulged for some years.

When the conveyances were made they both said they did not want them recorded, as they did not want the children to know .about it. Mr. Ten Eyck, before they were made, told an old friend and advised that whatever he did would be found fault with, that he wanted peace, that he intended to deed or will his property to his wife and let her give it to or divide it among the children as she thought best. At the time the deeds were made he was seventy-six years of age, and his wife ten years younger.

On July 7, 1877, Peter W. Ten Eyck executed, acknowledged and delivered to the defendant, his daughter, Catherine A. Wit-beck, a deed of the same farm. This deed recites a consideration of ten dollars, which was then paid, and recites, “ also in consideration of the party of the second part paying over to the party of the first part annually the net proceeds of the property during his life, and if his wife survived him, one-third thereof •thereafter to her during her life, and another third thereof to his daughter Maria if she survived him during her life, and if she also survived both, then one-half thereof during her life. This deed was recorded December 5, 1879.

On January 9, 1883, Elizabeth Ten Eyclc, wife of Peter Ten Eyck, executed, acknowledged and delivered to the plaintiffs, Maria Ten Eyck and Cornelius H. Slingerland, a deed of the same farm. Peter W. Ten Eyck died in April, 1883, and Elizabeth, his widow, died in April, 1885.

The defendant, Catherine A. Witbeck, obtained possession of the farm, and the plaintiffs bring this action against her and her tenants in possession.

There was some testimony given upon the trial by the defendants with the view of showing that. Peter W. Ten Eyck was of' unsound mind, that he was unduly influenced by his wife to execute the deed to her in 1871, that the deeds to her were never actually delivered; also, that the deed from Elizabeth to the plaintiffs was never delivered.

"We have examined all this evidence, and although the learned judge submitted the questions of fact thereby suggested to the jury, and the jury thereupon found in favor of the defendants, we are constrained to say that in our opinion the evidence is utterly insufficient in that respect to sustain the verdict. It may be there is a scintilla of evidence in support of the surmise that Peter W. Ten Eyck was of unsound mind, that he was unduly influenced by his wife, that he never delivered the deed to her, and also that Elizabeth never delivered the deed to the plaintiffs ; but of evidence substantially tending to establish either of these propositions we find practically none.

The verdict therefore should be set aside as against the evidence, unless the defendant Catherine was entitled to recover as a matter of law under the recording act.

The evidence shows that at the time her father delivered her the deed she had no notice of his prior unrecorded deed to his-wife. As the defendant’s deed was first recorded, if she was a purchaser in good faith and for a" valuable consideration, her deed must prevail. 1 R. S., 756, § 1.

As an original proposition we should gravely doubt, whether the payment of ten dollars would suffice to defeat the title of the-prior grantee of a farm worth $20,000, although coupled with the implied promise of the later grantee to pay the net proceeds of the farm for a time as appointed by the grantor. This doubt-is strongly supported by two North Carolina cases, cited by the plaintiffs. Fullenwider v. Roberts, 4 Dev. & Bat., 278; Worthy v. Caddell, 76 N. C., 82, and the English cases therein cited. These cases are to the effect that a fair price is requisite; not necessarily a full one.

But in Hendy v. Smith, 49 Hun, 510; 18 N. Y. State Rep., 836, a case in which the consideration was only one dollar, the court, reviewing several cases in this state, sustained the deed first recorded, and held that the question was not one of the adequacy of the consideration, but of its character.

In the absence of any opposing decision in this state, we think . we ought to follow, as authority, the case last cited. The present seems to be a stronger case for the recorded title than the case last cited, in that the implied promise of the grantee to pay the-net proceeds as appointed by the grantor was valuable, Post v. West. S. R. R. Co., 123 N. Y., 580; 34 N.Y. State Rep., 484, and relieved the consideration of the imputation of utter inadequacy.

Judgment affirmed, with costs, but if the plaintiffs desire it, the order entered may recite that but for the recording act we would, have reversed the judgment.

Learned, P. J., concurs; Mayham, J., takes no part.


text:
    Sarah Burtis and Sarah Burtis, Ex’rx, Resp’t, v. Sarah Burtis, Adm’rx, et al., App’lts.

      (Supreme Court, General Term,, Third Department,

      Filed July 11, 1891.)

    Pasties—Foreclosure.
    Plaintiff brings this action individually, and as executrix, to foreclose a mortgage given by one 0., of whom she is the administratrix, and makes herself a party defendant in that capacity, together with all persons interested in the estate. Held, that the fact that she was named as a defendant did not prejudice the other defendants, and was not a valid ground of demurrer.
    Appeal from an interlocutory judgment entered upon an order overruling a demurrer to plaintiff’s complaint.
    The complaint is for the foreclosure of one mortgage given by James Gr. Cleveland, now deceased, to secure the payment of two bonds, one for $1,142.55 to the plaintiff Sarah Burtis, the other for $1,021.53 to Elizabeth Cleveland, now deceased. Sarah Burtis is the executrix of, etc., of Elizabeth Cleveland, and the administratrix of, etc., of James Gr. Cleveland, and she sues as plaintiff in her own right, and as executrix, and names herself as administratrix of the deceased mortgagor a party defendant with the other heirs of the mortgagor. She and Elizabeth Cleveland were sisters of the mortgagor, Elizabeth dying before him. The complaint asks, in addition to the decree of foreclosure and sale, judgment against Sarah Burtis as administratrix of the mortgagor for the deficiency. Frances Cleveland and Caroline L. Kerr, a nephew and niece, demur upon the grounds: That the complaint does not state facts, sufficient to constitute a cause of action. That the plaintiff has not the legal capacity to sue herself. That there is a defect of parties, since no defendant is named who is qualified to defend the interest of the estate of the deceased mortgagor against the plaintiff.

      Frank H. Graham, for app’lts; Lonson Fraser, for resp’t.
   Landon, J.

—That a person cannot sue himself is a common law rule, but in equity this technicality does not stand in the way of justice. Cole v. Reynolds, 18 N. Y., 74. Neilly v. Neilly, 23 Hun, 651, is an authority for such an action as this. The case was reversed in 89 N. Y., 352, because of a former adjudication. Lyon as guardian v. Lyon, 67 N. Y., 250, was another such action, and the practice was not questioned.

Although the plaintiff sues both in her own right and as executrix, and names herself in her capacity as administratrix, etc., of James Gr. Cleveland as defendant, she does not and probably cannot really sue herself. There was no need of naming herself as a party defendant. All she needed to do was to recite, as she does in the complaint, the facts showing her several capacities and the facts constituting her causes of action, and then bring before the court as parties defendant, as she has, all persons having any adverse interest If any of the defendants shall ultimately be prejudiced it will be because they neglect to resort to all the methods open to them to develop the truth. Sarah Burtis cannot confess judgment in her own favor or make any admissions for her own benefit against the estates she represents.

She does not, except nominally, represent both sides of this action, and the court will, if any of the defendants properly invoke it, see to it that the accident of her several capacities in no way sacrifices justice. The fact that she has placed her name among those of the defendants injures no defendant. Each one can, and must in this action, as in every other, look out for his own interests. The defendants ask too much; they ask Sarah Burtis to resign one of her trusts in order to obtain justice. Why should she ? Who will take it up ? It may be that all other interests are to be promoted by leaving the estate of James Gr. Cleveland without a representative. But she has her rights and duties in all her capacities, and the law does not require her to renounce any in order to secure justice. The objections taken by the demurrer are apparent rather than real. They are not substantial, and were properly overruled.

Interlocutory judgment and order affirmed, with costs.

Learned, P. J., and Mayham, J, concur.


text:
    Henry E. Weed, Resp’t, v. The Hamburg-Bremen Fire Ins. Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Insurance (Fire)—Interest op assured.
    Plaintiff procured from, defendant a policy insuring the “ Estate of O. Richards" against loss by fire, loss payable to himself, “mortgagee, as his interest may appear." The policy provided that it .should be void if the exact interest of the assured in the property, whether as owner, mortgagee or otherwise was not truly stated. It was shown that after giving the mortgage to plaintiff, Richards conveyed the property in trust for his creditors, with a residuary clause in his favor, and continued to occupy the property until his death insolvent. Held, that it was the interest of plaintiff as mortgagee that was insured and not that of the estate, that it was properly stated in .the policy, and that the fact that he had recovered a judgment of foreclosure did not preclude a recovery upon the policy.
    Appeal from a judgment entered upon a verdict directed for the plaintiff upon the trial at the Rensselaer circuit.

      A. H. Sawyer, for app’lt; G. B. Wellington, for resp’t.
   Landon, J.

—The policy insured “Estate of 0. Richards” against loss by fire on “their grist mill,” and fixed and movable machinery. “Loss, if any, payable to Henry E. Weed, mortgagee, as his interest may appear.” The policy contains this clause: “If the exact interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or otherwise, be not truly stated in the policy, then and in every such case this policy shall be void.”

The defendant insists that the “Estate of 0. Richards” is insured, and not the mortgage interest of the plaintiff, and that the plaintiff is the mere payee of the loss sustained by the estate, and the policy is void under the clause quoted, for the reason that the-exact interest of the assured is not truly stated. Weed v. London & Lancashire Fire Ins. Co., 116 N. Y., 114; 26 N. Y. State Rep., 414, is relied upon in support of this contention. That was a case in which tins plaintiff sought a recovery upon the same loss-upon a policy concurrent with this, in which also the policy insured the Estate of 0. Richards, loss, if any, payable to this plaintiff as his claim might appear.

The case cited was decided adversely to the plaintiff because the policy in that case contained a clause which is absent in this, namely, that if the interest of the assured in the property was other than the entire unconditional and sole ownership thereof, the-policy should be void; the referee found it was other than ther entire unconditional and sole ownership thereof and the court of appeals held the policy never had any force. The present case is-different.

In the present case evidence was given tending to show that the plaintiff insured his mortgage interest and that the words “ Estate of 0. Richards” were merely in identification of the property insured. It was shown that in 1854 0. Richards bought the-property; that in 1873 he and his wife gave the' plaintiff the mortgage upon which this policy rests; that there remains unpaid, upwards of $12,000 upon the mortgage; that in 1875 Richards and wife conveyed this and other property to Dean Sage subject to this mortgage, but in trust to hold, enjoy and dispose of the-same, and collect the rents and income thereof while unsold, and apply the net rents meanwhile, and the net proceeds of sale-ultimately, after payment of incumbrances, to the benefit of Richards’ creditors, with a residuary clause in favor of Richards ; that Richards, notwithstanding such conveyance, continued to-occupy said premises, claiming to own them, until his death, which occurred in 1879 ; that he died insolvent and intestate, leaving a. widow and three sons surviving him, of whom one is administrator of his estate; that in November, 1881, the plaintiff applied for and procured this policy of the defendant; that he paid the premium; that no one representing the estate of 0. Richards had anything to do with it; that plaintiff obtained the policy through, defendant’s agent, D. B. Ketchum, who resided near the property. No request was made by either party to submit any question of fact to the jury, but each party requested the court to direct a verdict in his favor. The court directed a verdict in favor of plaintiff, holding that “it was here the intention to insure under this policy the insurable interest of Henry E. Weed, mortgagee, and that the case therein differs from the one cited, in which the referee found the fact to be otherwise.” A verdict thus directed settles the facts in favor of the party obtaining the verdict. Sutter v. Vanderveer, 122 N. Y., 653; 34 N. Y. State Rep., 211; Dillon v. Cockcroft, 90 N. Y., 649. We think the verdict is justified by the evidence. It would be perplexing for the ordinary business man to state in the usual brevity employed in insurance policies the exact ownership of this property at the date of the policy. But there was no question about the plaintiff’s mortgage; it was given before the title became involved in any intricacy; the plaintiff desired to insure his own interest; whether the interest subsequent to his own was insured or not was no concern of his he bought the insurance he wanted, he could not with confidence name the person who owned the property, but he could identify it, and give to the defendant the means of finding out, by designating it as of the “ Estate of 0. Richards,” and he could state exactly and truly whether his own interest which he desired to insure was that of owner, mortgagee, trustee, agent, or otherwise, and he did so, and thus completely satisfied the limited kind of exactness which the clause first above quoted from the policy required of him. It was competent for him to insure his own interest in the manner which he employed. Thomas v. Montauk Fire Ins. Co., 43 Hun, 218; 5 N. Y. State Rep., 481; Pitney v. Glens Falls Ins. Co., 65 N. Y., 6; Dakin v. Liverpool, etc., Ins. Co., 77 id., 600. If there was any doubt whether he intended to do so, that doubt arose from the ambiguity of the words “ Estate of 0. Richards," and from the extrinsic evidence which it was proper tó resort to in order to enable the court to understand the circumstances under which the policy was given, to the end that it might be properly .construed and effect given to the intention of the parties. The verdict settled the doubt in the plaintiff’s favor.

The defendant cites several cases, of which Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y., 391, is the leading one, and argues from them that the plaintiff insured the interest of the estate, and not his own, and that as it was held in 116 N. Y., that the estate had no interest because of the deed from Richards to Sage, therefore the plaintiff as the mere payee of the loss can take nothing. The cases referred to state the rule where the owner insures his property and directs that the loss shall be payable to his creditor. They do not apply to a case in which the incumbrancer insures his own interest.

The defendant contends that the plaintiff did not state his exact interest truly in stating that he was mortgagee. This contention is based upon the further .fact proved in the case that in 1877 the plaintiff obtained a judgment of foreclosure upon his mortgage, but never proceeded to sale. We have already called attention to the peculiar kind of exact statement of his interest which the policy required the plaintiff truly to make. It was to distinguish by his statement exactly and truly which of several interests he had, whether that of owner, mortgagee, trustee, etc.; no more. He was a mortgagee with a judgment of foreclosure. But the policy said “ mortgagee as his interest shall appear,” thus leaving to appear, when the loss should occur, what further was necessary to define its status among the various kinds of mortgage interests.

It may be true that the mortgage was technically merged in the judgment, but it is also true that the judgment is simply a step to enable the mortgagee to realize his mortgage interest. It would be gross injustice to defeat an honest claim upon some nice distinction in the refinements of legal nomenclature, wholly irrelevant to the merits of the controversy.

But if we should assume that the plaintiff insured the estate of 0. Richards for his own benefit, the case would be free from the difficulty which defeated the plaintiff in the case in 116 H. Y., and would be assisted by the rules there enumerated. This case is free from the fatal clause of the policy of that case, and free from the adverse finding of the referee. Here the verdict is in plaintiff’s favor; the restriction in the policy presents no difficulty ; the evidence is ample to uphold the finding that the expression “Estate of 0. Richards” embraces that of the trustee, heirs and administrator ;. that it was intended to be a comprehensive term, embracing all who, severally or together, were needful to make the statement that they were owners exact and truthful, and ample to protect the mortgage interest of the plaintiff “as it .should appear.”

As the plaintiff bought the insurance he is entitled to recover upon it. Pitney v. Glens Falls Ins. Co., 65 N. Y., 6.

We think the objections respecting notice of loss and proofs of loss, and the offer of the defendant to prove by oral testimony that the plaintiff held the mortgage as trustee for the bank of which he was president, were properly disposed of by the trial ■court.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


text:
    Alvah J. Zimmer, App’lt, v. John J. Matteson and Hubbard L. Matteson, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    "Venue—Change of—Practice.
    One of two defendants, who appeared separately, moved for a change of the place of trial, on the ground of convenience of witnesses. Three days before the motion day an additional affidavit was served, showing that the other defendant consented to the motion and adopted the affidavits on which it was noticed, which affidavit was returned as not served in time. Held, that it was error to allow such affidavit to he read on the motion and grant the motion.
    Appeal from an order of the Montgomery special term, changing the place of trial from Fulton to St. Lawrence county, upon the ground of the convenience of witnesses.

      N. H. Anibal, for app’lt; Wilmer H. Dunn, for resp’ts.
   Landon, J.

—The complaint is upon a breach of warranty in the sale of a horse. Each defendant answered separately and by different attorneys. The defendant John separately served affidavits and notice of this motion more than eight days before the motion day. Ho reason why the other defendant did not unite in the motion was stated in the moving papers. Three days before the motion day the attorney for the defendant John served an additional affidavit, showing that the other defendant, Hub-bard, consented to the motion, and adopted the affidavits upon which it was noticed, with a notice endorsed thereon that the additional affidavit would be read in support of the motion. The plaintiff’s attorney promptly returned the additional affidavit, endorsing thereon that he did so because it was not served in time, and that he should object to its being used upon the motion. Upon the hearing of the motion the plaintiff’s attorney did, by his own affidavit, show that the additional affidavit was not served, in time, and objected to its use upon the motion. The objection was overruled, and the motion granted.

Without the additional affidavit, the motion ought not to have-been granted. Bergman v. Noble, 10 Civ. Pro., 190; 1 N. Y. State Rep.. 543, Welling v. Sweet, 1 How. Pr., 156. The order, therefore, rests upon an affidavit which, unless the Code, § 780, be disregarded, was improperly received. The objection is technical, but the plaintiff had the right to rely upon the statute. Nor do we ¡know that he would have opposed the motion if the additional affidavit had been served in time. As it was, he had valid legal ground for resisting it, and was entitled to an order denying it.

Order reversed with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Learned, P. J., and Mayham, J., concur.


author: Mayham, J.

text:
    The People ex rel. Ebenezer G. Blakslee, App’lt, v. The Commissioners of the Land Office, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.

    Land grano?—Deed—Reservao?ion in.
    Ad owner of the upland along a navigable stream who conveys the-same before receiving a grant of the land under water can make no valid-reservation of such land in his deed, and has no standing to lesist the title of his grantees or their assigns under a grant of such lands under water from the commissioners of the land office or to review the action of the commissioners.
    This certiorari is brought to review the determination of the commissioners of the land office granting land under water in the Hudson river, near the village of Sing Sing, to Ebenezer G. Blakslee Manufacturing Company. On the 28th of February, 1889, the commissioners of the land office, to whom application had before that time been regularly made, ordered that upon the payment by E. G. Blakslee Manufacturing Co. to the treasurer of the state of New York of $2,017 that letters patent for the beneficial enjoyment to the E. G. Blakslee Manufacturing Co. be granted for the lands under water as applied for. The amount so ordered to be paid was paid into the treasury on the 18th day of March, 1889, and on that day, pursuant to the order of the commissioners! of the land office, a patent was issued in due form to the E. G. Blakslee Co. for the land described in the petition.

      Francis Larkin, for app’lt; Alfred Taylor, for resp’ts.
   Mayham, J.

—The petitioner, Ebenezer G. Blakslee, and the applicant, the E. G. Blakslee Manufacturing Co., derive - their claim of title through several conveyances, transfers and reservations coming from Beube-n Quimby, who was the original owner and common source of title.

The claim of the petitioner is based upon a title derived through a mortgage foreclosure followed by several mesne conveyances of the land under water, based upon a reservation made by Quimby in his conveyance of the upland, the title to which comes to the applicant, The E. G. Blakslee Manufacturing Company, through several mesne conveyances from the same Quimby deed. In that deed Quimby, the grantor, makes this reservation, “ excepting and reserving to said Quimby, his heirs and assigns, all the water rights and privileges in the Hudson river, west of said railroad, which now do or hereafter may appear in or belong to the above described premises, the same and in the same manner as if these presents had not been made.”

By the conveyance of the title derived under the deed, the applicants became the riparian owners, and the petitioner at the time of the grant of land to the applicant of this land under water, by the commissioners of the land office, which is attacked in this proceeding, was the owner and grantee of whatever right or title was contained in the reservation above referred to in the Quimby deed. If that reservation was invalid and carried no right with it, then the purchaser of that right under a foreclosure and his subsequent grantees got no title or interest in the land under water, an'd the petitioner who claims that right would have no interest in the land under water conveyed to the applicant, and no standing in court to attack this grant.

So that the main question seems to be, did the reservation in the Quimby deed deprive the purchaser-of the upland, or his assigns, or grantees, of the right of riparian owners to obtain this grant from the state, or did that reservation divest the state of the right or power to grant the land under water, opposite to these highlands, to the riparian owner?

The answer to these questions must be decisive of this case. If Quimby, when he conveyed to Gregory and Mead, could make a valid exception and reservation to himself and his successors of the land under water lying along these uplands, then Gregory and Mead-and their grantees got no right in the lands under water as an appurtenant to their grant, and the applicant who succeeds to their title could get no greater rights than were conveyed to and belonged to its grantor, and consequently no riparian rights to a grant of land under water passed to this applicant

But this conclusion can only be reached upon the theory that a riparian owner has, before receiving any grant from the state, a right in the land under water which he may sever from the upland and hold not only as against the grantee of the upland but also as against the state, in which all lands under waters of a navigable stream are vested. The constitution vests in the commissioners of the land office such authority and power over the public lands of the state as may be conferred on them by the legislature (§ 6 of art. 5 of constitution). The powers and duties of such commissioners, as to land under navigable waters, are prescribed in § 1 of chap. 283 of Laws of 1850 (1 R S., 7th ed., 573, § 67) as follows: “ The commissioners of the land office shall have power to grant, in perpetuity or otherwise, so much of the land under the waters of navigable rivers and lakes as they shall deem necessary to promote the commerce of this state, or proper for the purpose of beneficial enjoyment of the same by the adjacent owner,, but no such grant shall be made to any person other than the proprietors of the adjacent lands, and any such grant that shall be-made to any other person shall be void.”

The grant by Quimby conveyed the land above high water mark and reserved only the right to land under water, so that after that conveyance he or his grantees or mortgagees had no adjacent land and were not, therefore, the proprietors of the adjacent, lands within the statute above referred to. By the terms of the statute any conveyance by the commissioners of the land office to-him or his grantees or mortgagees would be void.

If his reservation in his conveyance could have the effect of divesting the right of the state, through the commissioners of the-land office, of the power to grant adjacent lands under water to-Gregory and Mead, Quimby’s grantees, it would in effect deprive the state of the right to make a grant of this land under water and thus defeat the very object contemplated and expressed in the statute, the promotion of commerce of the state or the beneficial enjoyment of the same by adjacent owners.

But it is insisted by the petitioner that this is not an opens question, but has been settled by authority, and we are referred to'the cases of the People ex rel. Chas. G. Burnham v. Jones et al., 112 N. Y., 597; 21 N. Y. State Rep., 820; Benson v. Townsend 26 id., 644.

In People v. Jones, supra, which arose on certiorari to the action of the commissioners of land office, the court, Ruger, J., says: “ The undisputed evidence in the case shows that there was a strip of land situate between the lake and the premises embraced in the metes and hounds contained in the first deed.”

It is true that the learned judge in that case used language re-' ferring to the rights of riparian owners to limit the effect of their grant, so as to reserve the riparian privilege and also subsequent accretions, which if it had been used in a case like this, would seem to be conclusive; but, as it -was used in a case where-the grantee had acquired by his deed no riparian rights, by reason of the existence of intervening lands between those conveyed and the lake, the language must be construed as applicable-to the case under consideration by the court, and not to one standing upon an entirely different state of facts.

It is true that at the time Quimby purchased these lands high-water mark was east of the railroad, and that before making the conveyance to Gregory and Mead he filled up on the east of the railroad and made upland of all east of the railroad, so that by Lis conveyance to them he bound them on the east line of the railroad, but it also appears from the case that at that time. there-was no upland west of the railroad, and that the applicant owned. at the time of this application all the upland.

It also appears in the case that the only upland now existing west of the railroad and between it and the river is artificially made land formed from the dumping of the refuse from applicant’s furnace within the last two or three years, or by the petitioner’s directions while he was foreman of the applicant’s company. We are not, therefore, called upon to determine the rights of the petitioner under the reservation in the Quimby deed as to any natural accretions to the upland, and the question remains, it seems to us, as to the boundary of the highlands as they existed at the time of the execution of the Quimby deed. As the railroad was constructed in the river below high water mark, it did not, it seems, become a riparian owner, nor in any way affect the rights of the former riparian owner as to the right to a grant of land under water, under the statute.

In Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y., 423 ; 23 N. Y. State Rep., 928, the court held that the railroad company whose track or road bed was constructed below high water mark was not a riparian .owner and that the railroad company was not the owner of the adjacent uplands, and that the railroad company had no capacity to acquire land for any purpose except such as is defined in its charter, and could not take the statutory right of a riparian owner to acquire land under water. As the right of the railroad acquired under the law of eminent domain gave the railroad company no right to acquire land under water, under chapter 283 of the Laws of 1850, the right of the riparian owner remains unimpaired, under that act, and leaves the question of the effect of the exception and reservation in the Quimby deed as the real question in controversy under this certiorari. Assuming as we do that the case of the People v. Jones, supra, is distinguishable from this case, as shown above, we are left to the determination of this question solely upon the effect of the exception and reservation. An exception in a grant takes or retains out of the grant a part of the thing granted.

To make an exception valid the grantor must own the thing granted as well as the part excepted. In this case while Quimby at the time of making the above conveyance to Gregory and Mead was the owner of the upland and could, therefore, make a valid conveyance of the same, he had no title to the part excepted and could acquire no interest in it by his exception. A reservation must be of something belonging to the grantor, arising out of that which is granted; and as the title to this land under water was at the time of the Quimby grant in the state, and in no sense in Quimby, he had at that time no right or interest in it which could be reserved by him, especially as his deed of the highland rendered it impossible under the statute above quoted for the state to convey to him.

In People v. N. Y. & S. I. F. Co., 68 N. Y., 76, the court says: “ The ownership of adjacent uplands gave him (the owner) no title or interest in the lands under water in front of his premises.” The title to lands under navigable waters in this country, which before the revolution was vested in the crown of England, became upon the separation of the colonies vested in the state. within which they were situate, and became subject to the sovereign will of the people, who succeeded to the title of the king, and the legislature of the state became vested with the exercise of that sovereign power. The state, in place of the crown, holds the title as a public trust, to be exercised through the constitutional acts of the legislature. At common law any deed of an individual granting land under water or making an exclusive appropriation of the same not granted by the king was void. People v. Ferry Co., supra. In Gould v. H. R. R. Co., 6 N. Y., 522, the court held that the owner of lands adjoining a navigable river has no private right of property in lands of the river below high water mark. See, also, 29 Hun, 269, where this case is approved. Under this rule it is apparent that Quimby while he held the title to the highland could have conveyed no right to the adjacent land under water by virtue of his riparian rights, because the title was in the state; and for the same reason it seems clear that on a conveyance of his title to the highlands he could make no valid reservation to himself or his grantees or mortgagees of such land. If he could not, then his reservation in the deed was void and no valid claim or right can be predicated upon it.

If the petitioner has no legal right to the land under water, he has no standing in court to resist the title of the applicant under the grant of the commissioners of the land office, or to .review the action of the commissioners.

The proceedings of the commissioners are confirmed and the writ of certiorari quashed, with fifty dollars costs and disbursements against the petitioner in favor of the respondent

Learned, P. J., and Landon, J., concur.


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    The People, Resp'ts, v. William H. M. Hulett, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    1. Criminal law—Disorderly house—Complaint.
    A complaint charging a person with keeping a house for persons to visit for obscene and indecent purposes, and by which the peace, comfort and decency of the neighborhood is habitually disturbed, is sufficient under § 332 of the Penal Code.
    3. Same—Jurisdiction.
    The recorder of the city of Grloversville has jurisdiction to hear and determine a charge of keeping a disorderly house.
    8. Same—Evidence.
    On the trial of a charge of keeping a disorderly house, it is competent to prove the character of the persons who were in the habit of visiting it by reputation, and their characters are proper evidence to be considered by the jury in determining the character of the house.
    Appeal from a judgment of the court of sessions of the county of Fulton, affirming a judgment of the recorder’s court of Gloversville, convicting the appellant of keeping a disorderly house within the provisions of § 322 of the Penal Code.

      Clark L. Jordon, for app’lt; Edgar A. Spencer, for resp’ts.
   Mayham, J.

—The complaint on which the warrant was issued was made under § 322 of the Penal Code which, among other things, provides that “A person who keeps a house of ill-fame or assignation of any description, * * * or for any lewd, obscene or indecent purpose, or disorderly house, * * * or any place of public resort by which the peace, comfort or decency of the neighborhood is habitually disturbed, * * * is guilty of a misdemeanor.” We think the complaint on which the warrant in this case was issued clearly sufficient under this section.

The complaint is in writing and on oath, and charges: “ That at the time and place aforesaid the said William Hulett has kept a house or place for persons to visit for obscene and indecent purposes ; that said place is and has been, for the year last past, a disorderly house and a public resort, by which the peace and comfort and decency of the neighborhood has been and is habitually disturbed; that frequent quarrels occur in said house, and men and women of bad repute frequently visit there; that said quarrels and visits are at all times of day and night.” This complaint alleges that the complainant’s information is derived from personal observation and inspection as a public officer of the city, and the charges are sustained by the affidavits of several persons accompanying the complaint.

Hor do we think that the contention of the appellant that the recorder had no jurisdiction to hear the case, sound. The offense charged is a misdemeanor. Penal Code, § 322. By § 2 of title 9 of chap. 55 of the Laws of 1890, the recorder of the city of Grloversville, within the city, is invested with the following power and jurisdiction: He shall have jurisdiction, power and authority in said city, to the exclusion of all magistrates, except officers of a court of record, to issue all criminal processes, to receive and hear all informations and complaints, and make examinations in criminal cases; to hold courts of special sessions, with all the powers and jurisdiction.of such courts; to hear, try and determine, in the first instance, all charges of misdemeanor, subject, however, to the power of removal provided for in §§ 57 and 58 of the Code of Criminal Procedure.”

By § 26 of art. 6 of the state constitution, it is provided that “ Courts of special sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law.”

As the recorder is given exclusive jurisdiction of the crime of misdemeanor, in the first instance, within the city of Grloversville, it must follow that within the above constitutional provisions he had jurisdiction of the offense charged in this complaint. The next objection made by the learned counsel for the appellant is that the testimony offered on the trial did not authorize or sustain the verdict and judgment.

We have examined the evidence and cannot agree with the learned counsel in that contention. While this court on appeal shoúld" set aside a conviction where there is an entire want of evidence to sustain it, we do not think-that this is such a case. We think that the jury from the evidence could fairly and justly reach a conclusion of the guilt of the defendant and that the court from the evidence cannot on appeal fairly say that the verdict was the result of passion or prejudice.

The appellant insists that it was error to allow the prosecution to prove on' the trial the character of the women who frequented the defendant’s house by general reputation. The question objected to was: “ What is the general reputation of the women who frequented that place." This question was objected to by the defendant on the ground that “ general reputation is not the proper way of proving that the men and women who visited the place come under the persons named in § 322 of the Penal Code.” This objection was overruled and the witness answered: “ They are disreputable characters.”

If this had been an attempt to prove the character of the house by general reputation, we think it would have been inadmissible upon principle, and within the decision of People v. Mauch, 24 How., 276, and the cases there cited. But it was not. The character of the house was sought to be proved by the frequent quarrels, noise, profanity and lewd conversation that occurred there by night and day, and as evidence bearing upon the character of the house the character of the women who frequented it was proved by reputation. This we think was admissible and proper. In People v. Mauch, supra, p. 279, the court says: “In Wharton’s Grim. Law, § 661, it is said, evidence of general reputation as to a gambling house, or disorderly house, is not admissible, and at § 3290 it is said that proof of the character of the women who frequent such a house and the character and conduct of the men, and the effect upon the neighborhood, is admissible.”

The rule that character of persons may and must be proved bjr general reputation is too well settled to require citation of authorities ; we think it was competent to prove the character of the persons who were in the habit of visiting this house, by reputation, and that their characters were proper evidence to be considered by the jury in determining the character of this house. United States v. Stevens, 4 Cranch C. C., 341; U. S. v. Jourdine, id., 338 ; Wharton’s Crim. Law, vol. 2, § 1452. The remaining question raised by the appellant on this appeal was, “ Had the recorder jurisdiction to try the defendant with a jury of six persons?”

The manner of procuring a jury in the court of special sessions for the trial of offenses triable before such courts is plainly prescribed in title 1 of part 5 of the Code of Criminal Procedure. Section 703 of that title prescribes how a jury shall be procured, and that twelve jurors shall be summoned. Section 705 provides that the names returned shall be written on strips of paper and placed in a box. Section 706 provides that the court must draw out six of the ballots or more, if any are set aside on challenge. Section 708 provides for summoning talesmen. Section 709 provides for issuing in certain cases a new order or venire, and § 710 provides that “ when six jurors appear and are accepted they constitute the jury.”

These provisions of the statute seem effectually to dispose of the last objection.

The judgment and conviction of the court of special sessions and that of the court of sessions are both affirmed.

Learned, P. J., and Landon, J., concur.


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    Philip J. Warner, Resp’t, v. The Schoharie & Schenectady Mutual Fire Ins. Association, App’lt.

      (Supreme Court, General Term,, Third Department,

      Filed July 11, 1891.)

    Insurance (pike)—Conditions precedent to action on policy.
    The charter of the defendant provides that the mode of ascertaining the amount of loss shall be as specified in § 6 of chap. 739, Laws 1857, which provides that in case of disagreement the claimant may appeal to the county judge. Meld, that in case of disagreement as to the amount of loss such appeal was a condition precedent to a right of action on the certificate.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the judge at the circuit.
    The action was upon an insurance certificate issued by the defendant to the plaintiff for $450 on hay and grain and $125 on farming utensils, to run from September 2, 1889, to September 7, 1894. On the 11th of December, 1889, the property was destroyed by fire. This action was brought to recover the loss. At the conclusion of the testimony the defendant moved upon several grounds to dismiss the complaint, for a nonsuit, and that a verdict be directed for the defendant, all of which were denied by the court, and the case was given to the jury, who returned a verdict for the plaintiff for $462.50. The defendant moved to set aside' the verdict upon the minutes, upon the exceptions taken, and as against and contrary to law, which was denied by the court

      Hobart Krum, for app’lt; George B. White, for resp’t.
   Mayham, J.

—The appellant is a co-operative fire insurance association, incorporated under and by virtue of chap. 155 of the Laws of 1868, for the purpose of insuring farm buildings and property in the counties of Schoharie and Schenectady. On the 7th of September, 1889, the respondent applied in writing for an insurance certificate upon the property described in his application, and on that day a certificate of insurance was issued to him on the same. The signing of an application for insurance was, by the by-laws, construed to be a signing of the constitution and by-laws within the meaning of § 6 of chap. 155 of the Laws of 1868, under which the company was incorporated, and constituted the applicant a member of the company. On the same day a certificate or policy of insurance was issued to the applicant on the property for the alleged destruction of which by fire this action was brought On the 11th of December, 1889, the property was destroyed by fire.

The respondent by his application, signed by him, and by virtue of which he became a member of the association, agreed to be bound by the constitution and by-laws of the same, and obligated himself, his heirs and assigns to pay his pro rata share to the company o£ all loss by fire which might be sustained by any member thereof. On the next dav after the loss the respondent notified appellant’s agent of the same, and requested him to notify the company’s secretary, which he did on the 13th of the same month, and on Monday, the 16th, the appellant’s secretary and agent, both of whom were directors of the association, met at the place where the loss-occurred, and informally examined the property and discussed the subject of the loss, but reached no agreement in relation to the same; the secretary then informing respondent that he would have to make proofs of loss and have them at the next regular meeting of the association. On the 7th of January, at the regular monthly meeting of the board of directors, which was also the annual meeting for making assessments, the plaintiff presented his proofs of loss, which were objected to as informal, and plaintiff was requested to take them back and present them at the meeting in February, which he did, with the apparent acquiescence of the company or its officers.

It is quite apparent that any irregularity which may have existed in the proofs of loss was waived by the association. But it is insisted by the appellant that the plaintiff has not adopted the proper method for ascertaining the amount of loss, and that no action will lie on this certificate until the plaintiff has adopted the methods prescribed by the by-laws, the act of incorporation, and § 6 of chapter 739 of the Laws of 1857, which is made applicable to this association for the purpose or adjusting losses. Section 9 of chapter 155 of the Laws of 1868, by which this association is created, provides that ‘‘The mode of proceeding, in case of a loss by fire by the corporation hereby created, to ascertain the amount of loss sustained, shall be as specified in §§ 6 and 7 of chapter 739 of the Laws of 1857. Section 6 of that act provides that the directors shall appoint a committee of not less than three or more than five members of such company to ascertain "the amount of such loss, and in case of the inability of the parties to agree upon the amount of such damage, the claimant may appeal to( the county judge of such county, whose duty it shall be to appoint three disinterested persons a committee of reference who shall have full authority to examine witnesses, to determine all matters, who shall make their award in writing to the president or in his absence to the secretary of the company, which award thereon shall be final.” This section further provides the manner of the payment of the expenses of such appeal. And section 7 provides the method of assessing and collecting the same from the'members of the association. This case discloses that the association at its meeting on the 7th of January appointed a committee of five members of the association who assumed to act and make their estimate of the loss, and a resolution was adopted by them fixing the amount of the loss at $250, which was reported to the directors and by them directed to be communicated to the plaintiff and the same was communicated to him, and at a subsequent meeting of the directors plaintiff informed them that he declined to accept that amount. These facts were reported at the next meeting. It is insisted by the appellant that, upon these facts, it was the duty of the plaintiff, if he was dissatisfied with the amount reported by the committee of five, to appeal to the county judge of Schenectady county for the appointment of a committee of reference as provided in § 6 of chapter 739 of Laws of 1857.

There was no express agreement in the certificate or policy by the association to pay this loss or any loss. The obligation of the company to pay losses arises out of the act under which it was incorporated, the articles of incorporation, the constitution and by-laws adopted by it, the application for insurance and the certificate. All of these must be read and construed together and, they as a whole constitute the contract and create the obligation of the association to pay losses. The plaintiff being a member of this association, he and the association are alike bound by the law of its being, and the constitution and by-laws established for its government; and its liability to its members, and between it and them, must arise out of the charter, constitution, by-laws, application and policy.

By its charter, chap. 155 of the Laws of 1868, the association is required to pursue the method prescribed by § 6 of chap. 739 of the Laws of 1857. This provision of the charter is binding upon the assured as a member of the association as well as upon the association, and prescribes the course of procedure in case of disagreement as to the amount of loss.

The association pursued substantially the prescribed course, by the appointment of a committee of five members to ascertain the loss. The plaintiff disagreed with the committee as to the amount and refused to accept their award. It is true that that award was not binding upon the plaintiff, but on his refusal or failure to agree to that amount the statute above referred to provided a method of appeal to the county judge, and this appeal constituted a tribunal agreed upon by the parties and forming a part of the contract itself for the settlement of this difference." If the association had consented to any other method of adjustment their act and agrdement would have been ultra vires and would not have bound the members of the association or authorized any assessment upon the members for the collection of the assessment for the payment of the loss.

A corporation is bound by its charter, and can act only as authorized by it. Jemison v. Citizen’s Savings Bank, 122 N. Y., 135 ; 33 N. Y. State Rep., 335 ; Abbott, Administratrix, v. Johnstown, Gloversville, etc., R. R. Co., 80 N. Y., 27. Nor could the plaintiff ignore or disregard this provision of the statute. He was a party to this contract of insurance, and as such was required to follow its requirements and be governed by its provisions. He was bound by the provisions of § 6 of chap. 739 of the Laws of 1857, which, when he became a member of the association, was a part of the contract, by which he had consented to be governed. He was bound by the provisions of the charter and the by-laws to which-he had subscribed as a member of the association. In Jemison v. Savings Bank, supra, the court says: “ Corporations are artificial creations existing by virtue of some statute and organized for the purposes designed in their charter. A person dealing with a corporation is chargeable with notice of its. powers and the purposes for which it was formed. A corporation necessarily carries its charter wherever it goes, for that is the law of its existence. It follows that the plaintiff must have known or is chargeable with knowledge of the corporate powers of the defendant.”

This rule applies with peculiar force to a case like the one at bar. Here the plaintiff was a member of the corporation and as such had obligated himself to be governed by its rules and bylaws and to seek indemnity for his loss in accordance with their provisions.

In Poultney v. Bachman, 31 Hun, 54, it was held that where the charter and by-laws provided for an appeal from the decision of a lodge of Odd Fellow's to the grand lodge of the same order, in determining a liability of the lodge to a member for benefits, that no action would lie until the member had adopted that remedy ; and although the grand lodge was not a tribunal known to the law, nor one invested with power to enforce its orders or decisions, yet the court held that the plaintiff must resort to it before he could claim that the lodge had violated its duty to pay.

In other words, it was in the nature of a condition precedent to his right to maintain an action, and the court, in that case, says: “Without discussing the question whether or not the decision of the highest appellate tribunal of the society is conclusive, we are of the opinion that the contract into which the plaintiff entered requires him to seek redress within the society itself, by carrying the question to the highest tribunal; for it is evident that every part of the constitution and by-laws entered into his contract and are to be considered therewith." In that case it is true that the appellate tribunal was not one established by law and was only created by the contract; while in this the legislature, by the acts of incorporation, created the tribunal to which the plaintiff might appeal and made the decision of that tribunal final as to the amount of the loss.

It seems, therefore, that the plaintiff having prosecuted this action without first resorting to the appeal given by the charter, his action is prematurely brought and the defendant having raised this question on the trial in his motion for nonsuit, it was error for the learned trial judge to deny the defendant’s motion and allow the case to go to the jury, and for that reason the judgment should be reversed.

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

Learned, P. J., concurs; Landon, J., not acting.


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    Henry Martin, Assignee, App’lt, v. Thomas O. Crehan and Sarah M. Crehan, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 11, 1891.)

    Nonsuit—Action against joint debtobs.
    The complaint alleged a joint liability for goods sold. The proof showed only an admission of indebtedness by one defendant, who disputed the amount of the account presented. Held, that a nonsuit was proper.

      This action was prosecuted to recover a balance claimed to be due the plaintiff, as assignee, from the defendants, for goods sold and delivered by plaintiff’s assignors to the defendants. The complaint alleged the sale of the goods by the assignors to the defendants, their failure to pay, and that they carried on a business jointly, in which the goods were used. The answer was a general denial. On the trial the plaintiff was nonsuited, and from the judgment rendered upon the nonsuit plaintiff appeals.

      B. R. Haywood, for app’lt; Galen R. Hitt, for resp’ts.
   Mayham, J.

—The case does not disclose the precise ground on which the nonsuit was granted, and we have not been favored by the counsel on either side with briefs, and must, therefore, look through the evidence to ascertain the grounds of the nonsuit for which this appeal is brought The complaint alleges a joint liability for goods sold and delivered to defendants jointly.

We have looked through the case in vain to find any evidence upon which such liability can be predicated. There is some evidence given by the plaintiff’s attorney, who was sworn as a witness, of a conversation with the defendants about a bill, but it seems to fall far short of amounting to an admission by them that they were joint debtors. All the direct statements proved were made by the defendant, Thomas, and not one word is proved of a declaration or admission by the defendant, Sarah. Nor does the proof disclose that she ever, jointly with Thomas or individually, purchased or received any of the goods referred to in the complaint. If the case had been sent to the jury and a verdict rendered establishing a joint liability, it would have been set aside as wholly unsupported by the evidence. As the allegation in the complaint charged joint liability of both defendants and made no claim for an individual liability of one of them, the proof must establish a joint liability to entitle the plaintiff to recover against both. At common law a failure of proof of a joint liability where one was alleged would be fatal to the plaintiff’s action, as he would be required to establish a joint and not a several liability. But this rule seems to have -been modified by the Code. Brunskill v. James, 11 N. Y., 301. But if a recovery in an action like this might be had against one defendant and the complaint dismissed as to the other, a proposition which is not necessary to be decided in this case, still the nonsuit was right as to both defendants in this case, for the reason that the evidence failed to establish a' joint liability and an individual liability as well.

If it is true that the proof shows that the defendant Thomas admitted that he owed the assignor, yet he disputed the amount of account as presented, and as the evidence stood the jury would have been left entirely in the dark as to the amount of such indebtedness, and a verdict for any amount upon the evidence as it was left would have, at the most, been a mere guess, without any reliable data on which the "jury could predicate a verdict. As the case stood at its close, we think the nonsuit was correct, and that a new trial must be denied.

Judgment affirmfed, with costs.

Learned, P. J., arid Landon, J., concur.


author: Merwin, J.

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    Charles E. Crouse, Survivor, Resp’t, v. The First National Bank of Penn Yan, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Banks—Negligence.
    Plaintiff’s firm drew a sight draft, “ protest waived,” on one D., for a portion of the account due from him, and sent the same to defendant for collection. As D. lived some distance from the bank, defendant, according to its custom, mailed notice of the draft to him, and some days later he accepted it and agreed to pay the same in a few days, and shortly afterward made an assignment. I). was insolvent when the draft was drawn, but of this defendant had no knowledge. Sold, that in the absence of specific instructions, defendant had a right to act according to the custom of banks in that vicinity, and that under the circumstances of the case it was not guilty of negligence.
    Appeal from a judgment entered in Onondaga county, November 17, 1890, upon the report of a referee in favor of the plaintiff for $560.40 damages, besides costs.
    The action is to recover damages for the alleged negligence of defendant, in failing to collect a draft drawn by Crouse & Walrath on P. M. Dinehart, on February 14, 1884, for $400.

      John T. Knox, for app’lt; Samuel R. Stern, for resp’t.
   Merwin, J.

—On the 14th February, 1884, Peter M. Dinehart, of Friend, Yates county, N. Y., was indebted to Crouse & Walrath, a firm at Syracuse, N. Y, of which the plaintiff is the survivor, in the sum of $810:98, for balance of account for-goods sold and delivered. At that date Crouse & Walrath, on account of this debt, made a draft, a copy of which is as follows:

“ Syracuse, N. Y, Feb'y 14, 1884.
“At sight (protest waived), pay to the order of Gr. H. Lapham, Esq., cashier, four hundred dollars, value received.
“ Crouse & Walrath.
“To P. M. Dinehart, Friend, N. Y.”

This upon the same day they mailed to defendant, a banking • institution at Penn Yan, N. Y, of which Lapham was cashier. The letter enclosing it contained no instructions; it was simply, “We enclose d’ft Dinehart 400." This in due course of mail was received by defendant on February 15. On that day, as Lapham testifies, Dinehart was notified by mail of its receipt by the bank. Friend, the place where Dinehart lived, was seven miles' distant from Penn Yan and the time of the mail between the two places was about three hours. On the 21st February Dinehart was in the bank, the draft was presented to him, he said it was all right, that he couldn’t pay it that day but would the next week. He was asked to accept it, said he would, and thereupon Lapham wrote on the draft “accepted, payable at the First Nat. Bank of Penn Yan, Feb’y 21, 1884,” and Dinehart signed it On the saíne day the cashier sent by mail to Crouse & W alrath a card as follows: “I have your letter of 14, with enclosure as stated, 400, payable some time-next week. Says this is the best he can do.” C. H. Walrath, a witness for plaintiff, testifies that on the 22d or 23d February, 1884, he, at the request of Crouse & "Walrath, called at the bank and asked a man at the desk about the Dinehart draft, and was informed “ That will be all right; that’s all right.” On 3d March, 1884, Crouse & Walrath wrote the bank, asking, “Has Mr. Dinehart made arrangements to pay his draft? Will you also kindly inform us how good you consider him ? ” To this the cashier replied on the 6th, enclosing the draft and stating that he had just learned that Dinehart had made an assignment. The assignment is dated March 6. On March 10 Crouse & Walrath commenced an action in replevin against the assignee to obtain the goods for a part of which the draft was drawn. In the complaint in that case the plaintiffs allege ownership of the goods by reason of fraud of Dinehart in obtaining them. This action was tried in October, 1885, and the defendant therein succeeded. The present action was commenced in September, 1884.

There had been some prior dealings between Crouse & Walrath and the defendant. On the 14th November, 1883, they drew and sent to defendant a similar sight draft on Dinehart for $300, and the proceeds were remitted by the defendant to them on November 21 following. It was shown that the custom of the defendant and the other banks at Penn Yan, in reference to giving notice of drafts forwarded and drawn on persons residing in the country away from the village, was to notify by mail unless they had special instructions to present, in which case they employed a notary. It does not appear that defendant knew that Dinehart was embarrassed or had any information about the assignment or intent to assign until after it was made. The cashier testifies that he had not the least suspicion that the draft was not good if accepted and that he presented it at first opportunity. Dinehart kept no account at the bank, though he did more or less business there.

It is quite clear from the evidence that Dinehart was in fact insolvent when the draft was drawn. It was shown that he paid 'no debts after the 21st February.

These are the main features of the case. The referee finds that the defendant was guilty of negligence in the discharge of its duties as agent of Crouse & Walrath in the collection of the draft, by reason of which they suffered damage to the amount of the draft We think this finding is not sustained by the evidence. In the absence of specific directions, the defendant had a right to act in the matter of presentment according to the custom of the banks in that vicinity. The draft by its terms was not to be protested. It was not a question of making other parties liaable. The draft was drawn for a part of the debt, the whole remained just as before. The draft was adopted as a convenient way of obtaining part payment. It was not expected that the strict rules as to commercial paper would apply. The form of the acceptance or the delay was not objected to. The reply given to the inquiry at the bank on the 22d or 23d February was evidently a matter of opinion and given in good faith. Crouse & Walrath by the letter of 21st February were informed of the situation. ¡Nor does the evidence warrant the inference that, had the draft immediately been presented, it would have been probably paid. In Failing v. Fargo, 12 W. Dig., 121, it was held by the general term in the fourth department in a case like the present that damages to the whole amount of the draft are recoverable only when it is reasonably probable from the circumstances of the case that the draft would have been accepted and paid by the drawee if the defendant’s agent had done his duty in regard to its collection. The rule laid down by the chancellor in Allen v. Suydam, 20 Wend., 329, was followed.

It follows that the judgment must be reversed.

Judgment reversed and new trial ordered before another referee, costs to abide the event.

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


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    The People, Resp’ts, v. Hiram Rouse, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Game law—Jurisdiction.
    An action to recover penalties for violation of the game laws may be brought in his own county by the district attorney of a county adjoining that in which such penalties were incurred.
    3. Same—Constitutional law.
    The provision of § 3 of chap. 577, Laws 1888, that such actions “shall be prosecuted to determination in the county where they shall be commenced," is not unconstitutional as abridging the right of the court to change the place of trial for good cause shown, nor as interfering with the defendant’s right of trial by jury. The action being a civil one, the defendant has no constitutional right to a trial by jury in the county where the cause of action accrued.
    Appeal from a judgment entered in Herkimer county December 27, 1890, upon a verdict at the Herkimer circuit December, 1890, in favor of the plaintiff for $100.
    The action is brought to recover penalties for killing woodcock, and having in possession woodcock after the same had been, killed, in violation of § 9 of chap. 534 of the Laws of 1879, as amended by chap. 269 of the Laws of 1884. The killing and possession are alleged in the complaint as occurring in Fulton county in July, 1889. It is also alleged that the action is brought upon the order and complaint of one of the game and fish protectors of the state. The complaint is signed, “ Irving R. Devendorf, district attorney of Herkimer county, plaintiffs’ att’y.” The place of trial designated in the summons is Herkimer county, which adjoins Fulton.
    Upon the trial, when the plaintiff rested, the defendant moved for a nonsuit upon the following grounds:

      “First. That this court has no jurisdiction to try this case.
    “ Second. That the district attorney of Herkimer county, who is attorney for the plaintiffs in this case, had no authority or right to bring the action in Herkimer county.
    “ Third. That it appearing that the action is brought to recover penalties for a violation of the game laws, which penalties were incurred in the county of Fulton, the court sitting in the county of Fulton has jurisdiction and authority alone to hear and deter-mine this case.”
    The motion was denied and the defendant excepted.

      H. B. Cushney, for app’lt; Irving R. Devendorf dist. att’y Herkimer county, for resp’ts.
   Merwin, J.

—The questions upon this appeal arise upon the denial of the motion for a nonsuit. The defendant claims (1) that the district attorney of Herkimer county had no right to bring the action in Herkimer county, and (2) that the court sitting in Herkimer county had no jurisdiction to try the case.

It is very doubtful whether the first question above stated can be raised upon a motion for nonsuit. Ordinarily the right of the plaintiffs attorney to bring the action, and the correctness of the. location of the place of trial, are matters to be questioned, if at all, before the trial is entered upon. Under the Code, § 985, if the county designated in the complaint is not the proper county, the action may nevertheless be tried there, unless the proper steps are taken to accomplish a change. Passing this, however, and coming to the statute under which the district attorney acts, it is there, § 3 of chap. 577 of the Laws of 1888, provided that suits of this character “ shall be commenced on the order of any game and fish protector, in the name of the people, by any district attorney where the offense shall be alleged to have been committed, or by the district attorney of an adjoining county; and such suits shall be prosecuted to determination in the county where they shall be commenced, unless for good cause appearing a discontinuance shall be directed by the chief game and fish protector.” The section further provides that if the district attorney of any county where suits may be thus commenced is not able by reason of the press of other business to give the case proper attention, the game protector may employ other counsel in the same county to commence and conduct such suits to termination, with the same authority in the premises that the district attorney would have. This section, it will be seen, very distinctly gives the district attorney of an adjoining county the power to act; and the inference is quite strong that such action was designed to be within his own county. Very clearly the legislature intended to confer the right to bring such suits in an adjoining county. There was otherwise no reason for designating the prosecuting official of such county. -

The question here is not affected by the case of People v. McDonald, 108 N. Y., 655; 13 N. Y. State Rep., 902; reversing 44 Hun, 592; 8 N. Y. State Rep., 494. In that case, the district attorney of Fulton county commenced an action for penalties incurred in the adjoining county of Saratoga, and the place of trial was laid in Fulton county. A motion was made at special term to dismiss the complaint upon the ground that the district attorney of Fulton county was not authorized to bring the action for a penalty incurred in Saratoga county. The statute under which the district attorney acted, § 1; chap. 591 of 1880, as amended by chap. 317 of 1883, did not confer any specific authority upon the district attorney of an adjoining county to act, and for that reason, it was held that the motion should have been granted. See dissenting opinion of Learned, P. J., at general term, adopted by the court of appeals. • In the statute in the present case, we have the specific authority that the McDonald case lacked.

The question raised as to the jurisdiction of the court seems to be based upon two propositions: Pirst. That the act of 1888 is unconstitutional, in that it provides that the actions “shall be prosecuted to determination in the county where they shall be commenced,” thereby abridging the constitutional jurisdiction of the supreme court and preventing it from changing the place of trial for good cause shown. Second. That a party sued for a penalty has a constitutional right to a trial by jury in the county 'where the penalty was incurred. In People v. Coughtry, 58 Hun, 245; 34 N. Y. State Rep., 706, it was held that, notwithstanding the provision above quoted, the supreme court had power to change the place of trial when the convenience of witnesses or the ends of justice demanded it, and that there was no design on the part of the legislature to abridge the jurisdiction of the court. ' Even if that particular provision was unconstitutional it would not affect the other provisions. People ex rel. etc., v. Kenney, 96 N. Y., 294. It would leave the defendant to his ordinary remedy for changing the place of trial.

We fail to see how the defendant’s right to a trial by jury has been interfered with. The action, though for a penalty and in the name of the people, is only a civil action, People v. Briggs, 114 N. Y., 65; 22 N. Y. State Rep., 317, and the incidents of civil actions apply to it. Ho law or case is cited to the effect that in a civil action a defendant has a constitutional right to a trial by jury in the county where the cause of action accrued. What the rule may be in criminal actions it is not necessary here to inquire.

We think that the motion for a nonsuit was properly denied.

Judgment affirmed, with costs.

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