author: BRADY, J.:

text:
    ELEANOR F. BISHOP, Respondent, v. CHARLES H. DAVIS, Appellant.

      Order of wrest — fraudulent representations.

    Wliere a person, to induce another to contract with him, makes statements known by the former to he false, or where he intends to convey the impression that he has actual knowledge of their truth, when conscious that he has not such knowledge, and they are in fact false, he thereby commits a fraud upon the other paríy.
    When such representations are affirmative in character, positive and unequivocal, without condition or qualification, and are not made upon information or belief, or as matter of opinion, they must be regarded as designed to convey the impression that he had actual knowledge of their truth.
    Appeal from an order, made at tbe Special Term, denying a motion to vacate an order of arrest. The affidavit of the plaintiff, upon which the order was granted, sets forth “that she is the plaintiff in this action, which action has been -commenced to recover the sum of $3,800 damages, sustained by deponent from the false and fraudulent representations of the above named defendant, as hereafter set forth.

      “ That, on or before the 1st day of April, 18Tf, defendant proposed to this deponent an exchange of a mortgage of $3,500, which he held upon certain property in Greene county, in this State, for a printing establishment and furniture in the city of New York, belonging to deponent; that, for the purpose of inducing deponent to make such exchange, the'defendant represented to and told deponent that said property was well worth the sum of $8,000; that the mortgagor’s title .thereto was perfect; that the land was good and productive, and that one-half thereof was in a high state of cultivation, and the residue was .wood-land, covered by a fine growth of timber, and that there was an habitable building thereon; that, the mortgage aforesaid having but two months to run, deponent would have no trouble, and would be subjected to no delay in collecting the amount due thereon; and deponent further says that, relying upon such statements and representations, she did make the exchange by him proposed; and gave, granted and assigned to said defendant, all her right, title and interest in the printing establishment and furniture aforesaid, and took the mortgage in return; that the statements and representations aforesaid were false and fraudulent; that, in fact, as deponent' subsequently ascertained, there is no such person in existence as the one named as mortgagor in the instrument in guesbion ; that the mortgagor, if such there was, had no title whatever to the property therein referred to; that the land was not worth $8,000, or any other sum, but was utterly valueless; that it was located on the summit of the Catskill mountains, and was not good and productive, nor was any portion thereof in any state of cultivation whatever, nor did any portion thereof consist of wood-land, covered by a fine . growth of timber, nor was there a building of any kind whatever upon said lands; but the land was wild, rocky, devoid of vegetation of any description, and neither under, nor capable off cultivation; and deponent says that the printing establishment and furniture above mentioned was well worth the sum of $3,500 at the time of 'exchange aforesaid.”

      Edward H. Hobbs, for the appellant.
    In an action founded on the fraud of an individual, the guilty intent of the defendant must be shown. {Defer v. Field, 52 N. Y., 621; Marsh v. Father, 40 id., 562, n; Hathaway v. Johnson, 55 id., 93; Aikvns v. Elwell, 45 id., 760 ; Dubois v. Hermanee, 56 id., 673 ; Birehell v. Strauss, 28 Barb., 293; People v. Kelly, 35 id., 444.) It is well settled by the authorities that where fraudulent representations are alleged and relied upon as the grounds of the arrest, it must appear not only that the representations wer.e false, but that they were known to be so by the party making them at the time they were made. (Thorp v. Waddington, 3 Daly, 275; Smith v. Jones, 4 Nob., 655; Atkins v. Elwell, 45 N. Y., 760.) The affidavits do not contain any allegation of defendant’s knowledge of the falsity of the statements made by him, and they were not therefore sufficient to give the court jurisdiction to make the order.

      William Q. Cooke, for the respondent.
    Section 181 of the Code provides that an order of arrest may be made when it shall appear to the judge that a sufficient cause of action exists. This, it will be seen, can only appear from evidence — legal proof. In stating generally that the defendant falsely and fraudulently made representations which he knew to be untrue, the plaintiff merely gives his conclusions, and not the facts upon which they are based. Whereas, it is for the court, and not the party, to decide whether the facts proved to exist establish the fraud charged. (O’Bielly v. Freel, 37 How. Pr., 275; Thorpe v. Waddington, 3 Daly, 175; Draper v. Beers, 17 How. Pr., 163; Meriden Iron Co. v. Band-man, Daily Peg., July 24, 1876; Gen. Term, First Department.) A recovery can be had in this action upon proof of the facts set out in the affidavits. It is not necessary either to allege or prove that defendant knew his statements were untrue. By failing to deny the allegations contained in our affidavits, defendant admits them. (Union Bank v. Mott, 9 Abb., 106; Wolfe v. Brouwer, 5 Bobt., 603.) The representations were positive, and imported full knowledge on defendant’s part of the matters stated. Being false in fact, they are fraudulent in law, and he is responsible for the fraud whether or not he had any actual knowledge upon the subject. (Story on Sales, § 165; 1 Story’s Eq., § 193; Bennetts. Judson, 21 N. Y., 238; Smith v. Richards, 13 Pet., 26; AimsUe v. MedT/ycott, 9 Yes., 13, 21.)
   BRADY, J.:

The representations made by the defendant were so minute, in relation to the mortgage and the land upon which it was a lien, as to clearly imply a knowledge by him of the facts stated, and, as it is conceded they were false, a fraud was committed.

The allegation in the plaintiff’s affidavit is that they were false and fraudulent, and made to induce the plaintiff to make the exchange, which was accomplished by them. It is enough to cast upon a defendant the burden of misrepresentations, if it appear that he intended to convey the impression that he had actual knowledge of their truth when conscious that he had no such knowledge. If the defendant, in other words, knew the statements he made to be false, or he intended to convey the impression that he had actual knowledge of their truth, when conscious that he had not, and they are in fact false, he committed a fraud upon the plaintiff. The result is the same. The plaintiff is equally injured by the one or the other. The assumption of knowledge depends much upon, and is indicated by, the form of the representation. If it be affirmative in character, positive and unequivocal, -without condition or qualification, as contradistinguished from information and belief, or resting in opinion, it must be regarded as designed to convey actual knowledge of its truth. The representations proved in this case are positive, unconditional and unequivocal. Eor example, that the mortgagor’s title was perfect; that the land was good and productive; that one-half was in a high state of cultivation ; that there was a habitable building thereon, etc. There is no belief expressed by the defendant in the existence of these things ■ — ■ no supposition, no statement on information or opinion. They are as already stated affirmative, positive. They were made for the purpose of inducing the plaintiff to make the exchange which was accomplished by them. The plaintiff does not state, it is true, that she was induced by them to part with her property, but she did transfer it after the representations which were made, as she alleges, to induce her to do so. If the defendant knew the statements to be false, be is guilty of misrepresentation. If be assumed to know wlrat he did not know, and by that device induced the plaintiff to part with her property, be was equally guilty. In this case, the defendant, at least, assnmed to know what be did not know, viz., that what be stated was true, and be did it to induce the plaintiff to make the exchange which resulted from their negotiations. This is apparent from the allegations in the affidavit of the plaintiff, and is a conclusion drawn not by the plaintiff but by the j udge therefrom. He finds the fact. In such a case, an order of arrest is a remedy to which a plaintiff is entitled. (Bennett v. Judson, 21 N. Y., 240; Marsh v. Falker, 40 id., 562; Meyer v. Amidon, 45 id., 169; Oberlander v. Spiess, id., 175.)

The order should, for these reasons, be affirmed, with ten dollars costs, and disbursements of this appeal.

Davis, P. J., and DaNiels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Dayis, P. J.

license: Public Domain

text:
    THE WILCOX SILVER PLATE COMPANY, Respondent, v. THOMAS GREEN, Appellant.

      Memoranda — when may he read in evidence — Statute of frauds — presumption as to existence of Mew York statute in foreign States.

    Appeal from a judgment in favor óf the plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover the value of certain silver plated ware, alleged to have been sold and delivered to the defendant.
    Hpon the appeal it was claimed that the court below had erred in allowing certain lists of the goods sold and packed to be read in evidence, and also in holding that the contract was not invalid under the statute of frauds.
    With reference to these questions the court at General Term say : “We think that the memorandum of the goods ordered, and that of the goods packed and shipped, were properly admitted. In respect to the first the witness testified, in substance, that while he could not give the items in detail from recollection, he could state that the goods contained in the list were those ordered, and that he made and forwarded this list to the plaintiffs immediately after taking the order. This list was allowed to be read merely as a, statement in detail of the articles which the witness had testified were ordered; so in respect to the memorandum of the articles boxed and shipped. The witnesses testified, in substance, that they bad boxed and shipped the articles specified in the memorandum produced; and while they could not state from mere recollection the details of the list, they could and did substantially swear that the details were correctly set forth in the list produced. We think these papers were fairly admissible for the purpose for which they were received within the rules laid down in Guy v. Mead (22 N. Y., 466) \ MeOormiók v. Penn. Cent. B. B. Co. (49 id., 303); Halsey v. Binsebaugh (15 id., 485); Mmehj v. Bhults (29 id., 346). Besides it appears, beyond dispute, from the testimony in the case on the part of the defendant, that these goods were actually received at Jackson, Mississippi, and used for the purpose for which they were ordered, and no question is made but that all the several articles named in the memoranda were, in fact, so received. The case therefore does not, and ought not, to turn upon any technical question as to the admissibility of either of the invoices of the articles ordered and sent.
    The question as to the effect upon the contract of the statute of frauds, so elaborately and ably discussed by the learned counsel for the appellant, does not seem to us to be an important one in this case. The order for the goods was given in the State of Mississippi. It was to be executed, so.far as delivery was concerned, by a delivery to the Adams Express Company in the State of Connecticut. A delivery to the express company is clearly shown, but it is claimed that an acceptance of the goods, as required by our statute of frauds, is not proven, and that therefore the contract is void under the statute. It was held in White v. Knapp (47 Barb., 549) that the courts of this State will not presume, in the absence of proof, that a statute of frauds like our own exists in another State. All the authorities cited by the learned counsel relate, as we understand them, to presumptions of the common law as it prevails in the various States; and they hold that unless the contrary be affirmatively shown, the courts of this State will presume that the common law of the several States is the same as the common law of this State. But no such presumption is held to arise in respect to, statutes, which are subjects of proof, as matters of fact; and the mode in which such .proof may be made is expressly declared i-n section 426 of the Code. The contract and the delivery under it to a designated carrier were valid at common law, and we think the court below was correct in so bolding, on denying the motion for a new trial.”
    The judgment and order should be affirmed, with costs.

      Francis G. Barlow, for the appellant. William Gleason, for the respondent. ,
   Opinion by

Dayis, P. J.

Beady and Daniels, JJ., concurred.

Judgment and order affirmed.


author: Taloott, J.:

text:
    JOSIAH B. PRENTICE, Respondent, v. ELIAS H. GEIGER, Appellant.

      Bipanian proprietor — Mill ovmer — rights of, as to use of stream by mill own&rs above — Bight of user acquired by time — extent of.

    This action was brought by the plaintiff, the owner of a saw-mill to recover the damages occasioned by the filling np of his dam by sawdust and rubbish, deposited in the stream by the defendant at his saw-mill which was situated higher up on the same stream. Upon the trial defendant claimed that he had a right to allow his sawdust and rubbish to float down the stream, and that he was not responsible for the damages occasioned thereby. Held, that it was properly left to the jury, to decide whether or not the use made by the defendant of the stream was, under all the'circumstances, a reasonable and proper one.
    Where a right to use the water of a stream in a particular manner has been acquired by prescription, such right is measured by the extent of the previous enjoyment, and the mode and manner of the user cannot be materially varied to the injury ol others, unless the use, as changed, has been continued foi' a period of twenty years.
    The defendant’s mill had been in use for about thirty years; during the first twenty years water power, and during the last ten steam power was used therein. Upon the trial evidence was given tending to show that when run by water power it was only used when the. water was high, at which times the sawdust and rubbish was carried over the plaintiff’s dam and occasioned no injury thereto, but that when used as a steam mill it was run when the water was low, and that then the sawdust and rubbish settled to the bottom of and injured the plaintiff’s dam. Held, that it was properly left to the jury to decide whether there had not been a material change in the use of the water, which resulted in damage to the plaintiff.

      Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, in an action brought for the recovery of damages occasioned to plaintiff’s mill by refuse, sawdust, etc., thrown in the stream by defendant, a mill owner higher up on the same stream.

      James Wood, for the appellant.
    The change of the plaintiff’s water mill to a steam mill, does not change the rule of law in reference to his right to throw the sawdust into the stream. (Palmer v. Mulligan, 3 Caines, 307 [marg. note] ; opinion of Spencer, 311, 312; Livingston, 313, 314; Radcliff v. Mayor, eto., 4 Comstock, 203; Thomas v. Brackney, 17 Barb., 654; Gar-hart v. Gas-light Go., 22 id., 308.) The defendant had a right to throw or deposit his sawdust in the stream of the creek, as from the evidence in the case it appears that he did do. (Belknapp v. Tremble, 3 Paige, 605; Smith v: Adams, 6 id, 435; Wash-bum on Easements, *281, § 41; Flammond v. Zehner, 30 N. Y., 118; Ang. on Water Courses, chap. 6, §§ 204, 205-208, 209; Townsend v. McDonald, 14 Barb., 460; 3 Kent’s Com., 440; Washburn on Easements,* 282; Murgatroid v. Rohinson, 8 Ellis Sc B., 391; Ingraham v. Hutchinson, 2 Comst., 591.)

      Ghas. J. Bissell, for the respondent.
    A riparian proprietor has no right to so use the stream, as to work injury to the other proprietors upon the same stream ; and if his use of the same does produce injury to another proprietor it is a question of fact for the jury to pass upon whether, under the circumstances, the use was a reasonable one. (O’Riley v. McGhesney, 3 Bans., 278; Hay v. The Cohoes Go., 2 N. Y, 159 ; Tremain v. The Same, id., 163; Thomas v. Brackney, 17 Barb., 654; Honsee v. Hammond, 39 id., 89; Sampson v. Hoddinnott, 38 Eng. L. and Eq., 241; Merritt v. Brinkerhoff, 17 Johns., 306 ; Pollitt v. Long, 58 Barb., 20.) The defendant’s right to pollute the stream with sawdust, is measured by the actual enjoyment of the right during the prescribed period, and it cannot be used in a different, more injurious or more extensive manner. The right acquired will be commensurate in character and extent with the right enjoyed. (Crowley v. Light-owler, L. R., 2 Ch. App., 478; McCallum v. The Germ,antown Water Go., 54 Benn. St., 40 ; Crosby v. Bessey, 49 Maine, 539 ; Manly v. Shults, 29 N. Y., 346 ; Ang. on Water Courses [6th ed.], 397, § 224, note 1, and. many cases there cited ; Shutt v. Bovingdon, 5 Esp., 56; Cotton v. Pooassett Manufacturing Go., 13 Mete., 429; Bussell v. ófectó, 9 Cow., 279; Baldwin v. Galkins, 10 Wend., 169.)
   Taloott, J.:

This is an appeal from a judgment'entered on a verdict at the Livingston Circuit. There appeared to be several exceptions to rulings on the trial, whereby evidence was admitted or rejected, but none of these are now insisted upon. On this appeal the appellant confines himself to an attempt to show errors in the charge, and in the refusal to charge various propositions. The plaintiff and defendant both occupy saw-mills on Sugar creek, in the town of Ossian, in Livingston county, the mill of the plaintiff being situated about a quarter of a mile down stream from the mill of the defendant, and the action is brought by the plaintiff to recover damages for the befouling the stream by the defendant, by casting into it large quantities of sawdust and other refuse, whereby the dam attached to the plaintiff’s mill was choked and filled up, so that his water power was greatly diminished. The defendant and his predecessors have occupied the upper mill as a saw mill for about thirty years. It was originally, and for many years used and run as a water mill, but within the last ten years or thereabouts it has been changed into a steam mill. From the commencement the defendant and his predecessors in the occupation of the upper mill have been accustomed to cast the sawdust and other refuse into the stream, but the mill during that period was only used for a few weeks in the spring and fall, during the time of high water, and when the dust from the mill now occupied by the defendant, and other mills above, as the evidence tended to show, would be carried over the plaintiff’s dam; whereas since the defendant’s mill has been operated by steam power it runs nearly all the year, and during periods when the water in the creek is too low to float the dust and debris over the plaintiff’s dam, and as the evidence tended to show, the sawdust and refuse being detained in the plaintiff’s dam by the' lowness of the water, becomes water-logged and sinks to the bottom, and accumulates in large quantities, filling up the plaintiff’s dam,

These are the facts, in substance, which the evidence tended to establish, and upon these facts arise the various propositions embraced in the motion for nonsuit, in the charge, and in the defendant’s requests to charge.

The defendant moved for a nonsuit, first, upon the ground that he had a right to allow his sawdust and other rubbish to float down the stream, and that if it should work an injury to any of the lower proprietors they were remediless, as that was the ordinary use of water privileges.

A riparian proprietor, it is true, may use the streams along his own premises for reasonable purposes, having regard to the rights of other riparian owners above and below, but he has no right to use the stream in such a manner as to prevent or seriously impair the use of it by others, who are also riparian proprietors upon the same stream. He cannot, by casting matter into the stream, obstruct or divert it, so as to prevent the other owners from using it in a reasonable and proper manner. (Hay v. The Cohoes Co., 2 N. Y., 159; O’Riley v. McChesney, 3 Lans., 278; Merritt v. Brinkerhoff, 17 Johns., 306.) Whether the use of the stream in the manner in which it was used by the defendant was a reasonable use thereof under all the circumstances, was a question of fact, and as such was properly left to the jury upon the evidence.

The second ground stated for the foundation of the motion for a nonsuit was that the defendant and his grantors, having for more than twenty years cast the dust and debris from his mill into the stream, had thereby acquired a prescriptive right to continue the practice, and that the ground stated was that a mere change in the manner of using the right which he had by law, that is, changing the mill from a water to a steam mill,” did not vary the defendant’s rights. We understand the law to be well settled, that the right acquired in such cases by prescription or presumptive grant must be commensurate with the extent of the previous enjoyment, and that the mode and manner of using the water of a stream, where a party relies upon prescription, cannot be materially varied to the injury of others on the same stream, unless the mode of use thus changed has been the same continually for a period of twenty years. Thus, in Marcly v. Shults (29 N. Y., 346), it was held that where the right acquired by prescription was to use flush boards” on a dam for a few months in the year only, their use or the use of any equivalent at other times was not justified by the prescription, and the parties injured were entitled to damages arising from the use of such flush boards, at times when the defendant had not been accustomed to use them. (See, also, Ang. on Water Courses, §§ 224, 230; Baldwin v. Calkins, 10 Wend., 169.) The evidence in- the case tended to show, if it did not clearly establish, that the prescription, claimed by the defendant to cast his sawdust and refuse into the stream was only during certain seasons of the year, when the water was at such a stage as that it was floated off and over the plaintiff’s dam, without injury to his rights as a riparian owner or to his mill; but after the mill was converted into a steam mill,- which was only about Pm years before the commencement of the action^ the exercise of the right to thus obstruct and pollute the stream had been extended to other seasons of the year, and to periods when owing to the stage of the water in the stream the plaintiff was seriously injured thereby, whereas before, the act had been comparatively innocuous. It was, therefore, a question for the jury whether, after the conversion of the defendant’s mill into a steam mill, there had been a material change in the use of the water by the defendant, which resulted in damage to the plain tiff. The charge of the justice at the circuit seems to have been unusually careful and distinct upon all the questions involved, and was, as we think, in accordance with the rules of law applicable to the subject. The first and second of the requests to charge by the defendant’s counsel called upon the court to determine questions of fact which were properly left to the jury upon the evidence. The third request had been charged, in substance, and the law fully and properly explained. The fourth of the requests to charge by the counsel for the defendant was “that if the plaintiff had omitted the proper and ordinary means of avoiding the annoyance and injury caused by the use of the defendant’s property, his own negligence contributed to the injury, and the plaintiff is not entitled to recover.”

Upon this subject the court has given instructions to the jury, quite as favorable as any the defendant had the right to ask. In the case of O'Riley v. McChesney, before cited from 3 Lans., 278, which was a case quite similar in the questions involved to the present one, the defendant, the owner of a flax mill, allowed flax shives to float down the current, and they accumulated a deposit and impaired the use of the plaintiff’s mill pond, the court held that such was not only not a reasonable and ordinary use of the defendant’s privilege, but that he was liable, even if the plaintiff might have remedied the evil by a different construction of his dam.

The 'fifth request involved a question of fact, which was properly . left to the jury upon conflicting evidence, and with the proper instruction in substance, that if they found the injury to the plaintiff had to any extent been due to the settling of his own dam, the circumstance would lessen the amount of the damages the plaintiff was entitled to recover, to the extent that the damage sustained by him was due to such settling of the dam. We see no ground on which the judgment ought to be reversed.

Judgment affirmed.

Present — MulliN, P. J., Smith and Taloott, JJ.

Ordered accordingly.


text:
    PLINY NEWTON, Supervisor of the Town of Orleans, Appellant, v. JOHN KEECH, Collector of the Town of Orleans, SAMUEL W. GATES and others, Railroad Commissioners of the Town of Orleans, Respondents.

      Town bonds in aid of B. B. Go. — collection of tax for payment of— right of tax-payer to maintain action to restrain its being paid oner — chap. 161 of 1872.
    Where a hoard oí supervisors have directed a tax to be levied and collected, for the purpose of paying interest upon town bonds issued in aid of a railroad company, which bonds the Court of Appeals have declared to bo invalid and void, a tax-paver of the town may maintain an action under chapter 161 of 1872 — providing for the maintenance of actions by tax-payers to prevent waste or injury to the funds of the county— to restrain the collector of the town from paying over to the railroad commissioners the moneys in his hands, arising from the collection of the said illegal tax.

      Ayers v. Lawrence (59 N. y., 192) followed; Kitbourne v. St. John (59 id., 21) distinguished.

      Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.

      Levi R. Brown, for the appellant.

      Waylcmd F. Ford, for the respondents.
   Taloott, J.:

This is an appeal from a judgment entered at a Special Term in Jefferson county, on a tidal by the court. The action was brought, on the equity side of the court, to restrain John Keech, the collector, from paying over to Samuel Gates and others, railroad commissioners of the town of Orleans, claiming to have been appointed as such under the town bonding act, as amended in 1869, certain moneys in the hands of said Keech, as such collector, and which had been ordered by the board of supervisors of Jefferson county to be collected, for certain interest due and to become due on $80,000 of the bonds of the town issued to the Clayton and Theresa Kailroad Company, in payment for the stock of that company.

The proceedings before the county judge, for the purpose of bonding the town for the benefit of the railroad, were reversed and set aside by the Court of Appeals as void and of no effect, by a decision made by that court on the 24th of February, 1873 ; but this action was commenced on the 30th day of January, 1873, a short time before the decision of the Court of Appeals, and whilst the decision of the Supreme Court upon the certiorari, affirming the validity of the proceedings before the county judge, was in full force and unreversed.

The bonds of the town were issued by the commissioners, and delivered to the secretary and treasurer of the railroad company on the 2d day of April, 1872, after the writ of certiorari was issued, and whilst the same was pending undecided in the Supreme Court; and they received from the railroad company, on a subscription made by the said commissioners in the name of the town, a certificate for the nominal amount of $80,000 of the capital stock of the said railroad company, in exchange for the said $80,000 of the town bonds, and they still retain the said certificate of stock.

No notice in writing of the issuing of the said writ of certiorari was served upon the said commissioners, nor was the said writ directed to them or any of them, the same having been directed to the county judge and county clerk of Jefferson county; but the said commissioners and the railroad company were fully informed of the issuing of the said writ of certiorari, and of the pendency thereof at the time of the subscription for the stock in the name of the town, and at the time of the issuing of the said town bonds, and the exchange thereof for the said certificate of stock.

After the decision of the Supreme Court, affirming the proceedings before the county judge and the appointment of said commissioners by him, and before the reversal of such decision by the Court of Appeals, to wit, in November, 1872, the said commissioners applied to the board of town auditors of said town, at a regular session thereof, and presented a claim for the interest on said town bonds, which became due in August, 1872; and also that which, according to the tenor of the said bonds, would fall due in February, 1873, and in August, .1873, amounting in all to the sum of $8,154.75, and the claim was disallowed by the four town auditors. Subsequently, and in the same month of November, 1872, the said commissioners caused to be presented to the board of supervisors of the county of Jefferson a statement in writing, a copy of which is annexed to the complaint, and which was, in substance, the same claim which had been rejected by the board of town auditors, and thereupon the said board of supervisors, against the objection and protest of the plaintiff, then a member of such board, voted and ordered that there be levied and collected upon the said town of Orleans the said sum of $8,154.75, for the interest due and to become due, as aforesaid, by the terms of said bonds, according to the report and statement of the said commissioners. And thereafter, in the same month of November, 1872, the said board of supervisors issued their warrant in the usual form, directed to the defendant Keech, collector of the town of Orleans, commanding him to collect of the several persons and corporations named in the assessment roll, to the said warrant annexed, the several sums mentioned in the last column of the said assessment roll opposite their respective names; and from the moneys so collected to pay, on or before the first day of February, then next, amongst other things, the sum of $8,154.75 to the said railroad commissioners or their successors, for principal and interest on the said town bonds, the sum set opposite their respective names, which, in the aggregate, embraced the $1,854.75, and included, in addition, the various sums ordei’ed to be collected in said town for town, county and State purposes. And the said John Keech, as such collector, had collected all, or nearly all, of the moneys specified in the assessment roll, and at the time of the commencement of this suit was about to pay the same over to the said railroad commissioners, as he was ordered to do by said warrant.

The complaint in this case was dismissed at the Special Term, on the general ground that a tax-payer, as such, cannot, by a suit in equity, draw in question the validity of the proceedings imposing a tax, or have direction given to the money in the hands of the collector.

The decision at the Special Term was undoubtedly in accordance with the settled law, so far as it was generally known and understood at the commencement of this suit, and in accordance with the authorities. (Mooers v. Smedley, 6 Johns. Ch., 30; Ayers v. Lawrence, 68 Barb., 454, decided by the General Term of this department.) The same principle was fully sustained by the case of Kilbourne v. St. John, decided by the Court of Appeals, November 10, 1874 (59 N. Y., 21), which latter decision would seem entirely to cover the present case, unless the law has been changed by a statute hereafter adverted to. The case of Ayers v. Lawrence (supra), however, went to the Court of Appeals, was argued nine days after the decision in Kilbourne v. St. John, and decided on the 8th day of December, 1874, and the majority opinion reversing the decision of this court’is reported in 59 N. Y., 192. The counsel for the appellant in the Court of Appeals referred to and relied upon a statute passed in 1872, which had not been referred to on the argument in the Supreme Court, and escaped attention at the time.

The decision of the Supreme Court in Ayers v. Lawrence was reversed in the Court of Appeals by four judges against the dissent of the other three, wholly upon the ground that the law as applied to that case had been changed by the act entitled “ An act for the protection of tax-payers against tbe frauds, embezzlements, and wrongful acts of public officers and agents.” (Cbap. 161, Laws of 1872.)

The action in Ayers v. Lawrence was brought by certain taxpayers against commissioners appointed under the act of 1869, and the acts amending the same, to restrain the issuing of bonds of the town of Milo, in the county of Tates, to or for the benefit of the Sodus Bay, Corning and New York Railroad Company. The complaint charged various defects, irregularities and illegalities in the proceedings to bond the town, similar in character to those for which the proceedings to bond the town of Orleans were reversed in the Cou-rt of Appeals, and the question came up on demurrer, which admitted the defects alleged. Thus it will be seen that the case of Ayers v. Lawrence differs from the case under consideration, in this, that the object in the suit in the former case was not to interfere with moneys arising from an illegal- tax already collected, but to restrain the creation or attempted creation of a liability against the town by the issue of town obligations, by defacto officers, which might in the future occasion taxation of the taxpayers of the town for their payment.

In the case now under consideration, the tax has been imposed and the money paid or collected, and is in the hands of the collector, about to be paid over as directed. by the supervisors who imposed the tax.

The act in question (chap. 161, Laws of 1872) provides that “ all officers, agents, commissioners, and other persons acting for, or on behalf of any county, town or municipal corporation, and every of them, may be prosecuted, and an action or actions maintained against them, to prevent waste or injury to any property, funds, or estate of such county, town or municipal corporation, by any person residing in such county, town or municipal corporation, assessed for and liable to pay taxes therein, or who has paid taxes therein within one year previous to the commencement of any such action or actions.”

The plaintiff is a resident and tax-payer in the town of Orleans, and as such assessed for property, real and personal, upon the assessment roll, in and for said town, as alleged and found. The funds are the funds of the town or of the county, by whose direction they were levied and collected. If it is proper for a court of equity to interfere to prevent the issue of tbe bonds in the first instance under the act of 1872, as was held in. Ayers v. Lawrence, it is difficult to see why it should not interfere to prevent the application of the funds, raised and collected -by the order of the supervisors, to the payment of any portion of the illegal obligation. Such an application of the funds would seem to be a waste thereof, and the case appears to be more clearly and directly within the plain language of the act, than the case presented in Ayers v. Lawrence. If it be claimed that it does not appear that such an application of the moneys in the hands of the collector would be a waste thereof, inasmuch as actions may, peradventure,- be brought on the bonds in the federal courts, where it is understood that similar bonds are, under certain circumstances, enforced, we answer that there is no proof or finding in this case that any of the bonds have come to the hands of a 'bona fide holder; and the Court of Appeals, in Town of Venice v. Woodruff et al. (62 N. Y., 462), held that the apprehension that the federal courts may hold the law to be different from the decisions of the courts of this State, is no reason for maintaining a suit in equity to prevent any transfer of the bonds so that they might be sued in the federal courts.

In Kilbourne v. St. John (59 N. Y., 21) it was held that one showing no other right than as a tax-payer, dannot maintain an action in equity against the official custodian of the proceeds of a tax, to restrain the application thereof to the purposes for which the tax was raised.

Though the case was decided in November, 1874, it is quite manifest that the act of 1872 must have entirely escaped the attention of the judge who wrote the opinion. It is said by the appellant’s counsel in this case, that the action in Kilbourne v. St. John was commenced before the act of 1872 was passed. If this is so of course the act could not affect the case. At all events it is clear that the act of 1872 was not considered by the court in the case, and the effect of that act in such cases was not determined or alluded to in the court, until the following month.

We are therefore of the opinion that under the views expressed by the majority of the Court of Appeals in the later case, the rule as to the power of a tax-payer to maintain a suit in equity to restrain tbe collector from paying over the money, collected for the purpose of paying interest upon the void bonds has been changed, and that such an action may be maintained by a tax-payer under the act of 1872, and the plaintiff was entitled to a decree of some kind in the action. Probably, however, only upon the equitable terms that a release of all right to the stock of the company, which was transferred as the consideration of the town bonds, shall be procured and tendered. It is scarcely probable that the town can be permitted to hold the stock, while one of the tax-payers of the town, as such, is permitted to repudiate the transaction and restrain the payment of the bonds.

Since the decision of the action at the Special Term the legislature has interfered with the relative position of the parties, and, as we understand it, has, in a great measure, done away with the necessity of this action. By chapter 178 of the Laws of 1876, John Keech, one of the defendants in this' action, the collector of the town of Orleans, who collected,'and at the time of the trial had the money directed to be raised for the payment of the interest on the town bonds, as specified, was authorized and directed to pay to the supervisor of said town all the moneys remaining in his hands which have been collected by him as such collector from the tax-payers of said town for railroad purposes.” The supervisor of the town is required to receive said moneys and to give Keech, as collector, duplicate receipts therefor, one of which he is to file with the county treasurer of Jefferson county which entitles Keech to credit on the books of the treasurer for the amount specified therein.

By section 4 of the said act, it is declared that “ it shall be the duty of the said supervisor of the said town of Orleans, on receipt of the said moneys so paid to him by the said John Keech, collector, as aforesaid, to safely keep the same and apply them towards the extinguishment of the next tax assessed on said town of Orleans, after the receipt of said moneys.” And by the fifth section it is enacted, amongst other things, that the supervisor of the town of Orleans, by accepting the money mentioned in the first section of this act, shall be deemed thereby to have assumed and accepted all the liabilities in regard thereto that existed against the said John Keech before the passage of this act; and any and all remedies that might have been enforced against the said John Keech shall thereafter exist against the said supervisor, and may be enforced against him.”

The complaint alleges that, at the commencement of the suit in January, 1873, the plaintiff was the supervisor of the said town of Orleans, and the court finds that he was such supervisor at the time of the trial in April, 1875. Whether he continued to be such supervisor at the time of the passage of the act of 1876 does not appear, and the court has no means of knowing. If iie did, the act of 1876 contemplates that he shall assume and take upon himself the liabilities in regard to the money in question, which, at the commencement of the suit and at the time of the trial, John Keech, the collector, and one' of the defendants, was subject to. Whoever may be the supervisor of said town for the year 1876, it is probable, inasmuch as the transfer of the interest and liability of John Keech has been accomplished by operation of law, that such supervisor would be a necessary party defendant. In fact, the whole object of the action seems to have been accomplished by that portion of the statute, which provides that the supervisor shall keep the money to be received from John Keech, the collector, and apply the same in extinguishment of the next tax assessed on the said town. This relief is as full as any that could be properly granted in the action. There is no longer any legitimate motive for continuing the action, unless it be to get rid of the costs, which were awarded against the plaintiff! The opinion hereinbefore expressed that the decision of the Special Term was erroneous, and that the action should have been maintained, being-founded wholly on the act of 1872, and the construction given to that act by the Court of Appeals in Ayers v. Lawrence, and neither the act of 1872 nor the decision of the Court of Appeals reversing the decision 'of this court in Ayers v. Lawrence having been relied on or referred to on the trial at the Special Term, and probably having escaped the knowledge and attention both of the court and the counsel for the plaintiff on that occasion, the decision in this case, when made, was apparently correct as the law had been and was supposed to remain. It appears to us that the fairest disposition which we can make of the case, in view of the legislation of 1876, would be to reverse so much of the judgment at tbe Special Term as adjudges that the defendants recover against the plaintiff the costs and disbursements of the action, leaving so much thereof as dismisses the complaint to stand, the result operating as a dismissal of the complaint without costs to either party.

Accordingly the order will be, decree and judgment of the Special Term modified so as to reverse and vacate so much thereof as awards the cost and disbursements in the action to the defendants, and as to the residue, decree and judgment of the Special Term affirmed.

Present — MulliN, P. J., Smith and Taloott, JJ.

Ordered accordingly.


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    THE MARINE BANK OF BUFFALO, Respondent, v. JOSIAH M. FISKE, GEORGE D. SMITH and ARTHUR D. FISKE, Appellants.

      Bill of lacking — transfer of, as security for draft — title to goo As shipped — Faetcn's' act — chap. 179 of 1880— Usury — State Banks — chap. 168 <?/1870.
    G-. & H., commission merchants at Chicago, purchased certain Chicago wheat for one F., amerchant doing "business at Búllalo, and took a bill of lading therefor to their own order addressed to the care of F. or his assigns. Q-. & H. having no funds of F. in their hands, procured a bank in Chicago to discount a draft drawn by them on F. for the price of the wheat, and to secure the payment thereof annexed thereto the bill of lading indorsed by them in blank. The draft, with the bill of lading annexed, having been forwarded to the plaintiff for collection, an agreement was entered into between the plaintiff and 3ST. while the wheat was still in transit, by which the former discounted a note of the latter ,to enable him to pay the draft drawn against him, and N. to secure the payment thereof, transferred the bill of lading of the wheat to the plaintiff. Held, that the latter thereby acquired the legal title to the wheat.mentioned in the bill of lading.
    F. subsequently procured the master of two canal boats to execute and deliver to him two bills of lading, one for 7,600 and one for 7,400 bushels of Milwaukee wheat, stated to have been loaded on the boats consigned to the defendant in Few York, who thereafter in good faith, and relying upon the said bills of lading, discounted two drafts drawn by F. on account thereof. At the time of the making and discounting of the bill no such wheat had been delivered on the boats, nor was such in possession of N., nor were they made with reference to the Chicago wheat which had not yet arrived at Buffalo. After the arrival of the Chicago wheat, N., without the knowledge of the plaintiff, procured the same to be loaded upon thesaidcanal boats and sent to the' defendants, who thereafter sold the same with full notice of the claim of the plaintiff thereto.

      Held, (1) that the defendants were liable to the plaintiff for a conversion of the wheat; (3) that the case did not come within the “ factors’ act,” chapter 179 of 1830.
    Since the passage of chapter 163 of 1870 the only forfeiture imposed upon the banks of this State for the taking of usurious interest, is the loss of twice the amount of the excessive interest.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Wm. M. Greene, for the appellants.

      Sherman S. Rogers, for the respondent.

       Decided October term, 1876.

   Taloott, J.:

On the 9th of November, 1871, Messrs. Nichols, Gibson & Helmer, commission merchants and grain dealers of Chicago, purchased at that place at the request and as agents for Ozias L. Nims and David Long of Buffalo, doing business at the latter place, under the name of O. L. Nims, agent, 14,330|& bushels of wheat known in the market as No. 3 Chicago wheat, and caused the same to be shipped on board the propeller Empire State to Buffalo, on their own account, consigned to the care of Ozias L. Nims, at Buffalo. Nichols, G. & H., at the time of the shipment, received from the agents of the propeller a bill of lading, whereby the owners acknowledged the shipment and bound themselves to deliver the wheat at Buffalo, for account of Nichols, G. & H. to the care of Nims or his assignees or consignees, on payment of the freight and charges. Nichols, G. & H. not being in funds of Nims to pay for the wheat, for the purpose of raising the money to pay for the same, drew on said Nims at Buffalo, to the order of the cashier of the Third National Bank of Chicago, for $17,329.25, and attached thereto the said bill of lading, according to the custom of such business, and indorsed the same. The Third National Bank of Chicago, thereupon, and on the faith of said bill of lading, discounted the draft in question for the benefit of said Nichols, Gr. & H. and forwarded the draft and bill of lading to the plaintiff, the Marine Bank, at Buffalo, for collection. The draft and bill of lading arrived at Buffalo and were in the hands of the plaintiff on the 11th day of November, 1871. The wheat mentioned in the bill of lading not having yet arrived, but being them in transitu, thereupon said Nims applied to the plaintiff for a discount to the amount of $17,300, for the purpose of enabling him to pay said draft of Nichols, G-. & EL, to which proposal the plaintiff assented and discounted the note of O. L. Nims, agent, payable to the order of O. L. Nims, agent, ten days after date, at the plaintiff’s office, for $17,300, and as a part of the arrangement agreed that the said bill of lading and the wheat therein specified, should be indorsed, transferred and delivered to the plaintiff as security for the payment of the said note. . The draft of Nichols, Gr. & BE. was thereupon paid with the proceeds of said discount and other moneys furnished by said Nims. The bill of lading was indorsed by O. L. Nims, agent, and was retained by the plaintiff, as its security for the payment of the note, according to the usual custom of such business at Buffalo. The note was never paid, but remained unpaid at the time of the trial.

The inquiry here arises, whether the plaintiff by virtue of the transaction and the indorsement to it acquired any and what title to the wheat specified in the bill of lading, and then in transitu on the Empire State.

Nims (or the parties doing business under the name of “ Nims, agent ”) was the general owner of the wheat which had been purchased for his account, the draft of Nichols, G-. & H. for the purchase-money being paid as part of the arrangement with the plaintiff. The original bill of lading had been sent to the plaintiff with the blank indorsement of Nichols, Gr. & EE. They had the bill of lading solely as security for the payment of their draft on Nims, and so transferred it to the Third National Bank of Chicago, by which it had been transferred to the plaintiff as security for the collection of the draft. On the payment of the draft of Nichols, Gr. & BE., Nims became, in fact, the consignee and owner of the cargo, and his indorsement of the bill of lading to the plaintiff, with the intent and for the purpose of transferring the same and the goods therein specified to the plaintiff, as security for the payment of the note, transferred to the plaintiff the legal title to the wheat mentioned in the bill of lading. (Manf. and Traders' Bk. v. Farmers and Mechs.' Bk., Court of Appeals, MSS.)

It is insisted by the defendants that more than seven per cent was exacted by the plaintiff from Nims, upon the discount of the promissory note, and for this reason the transaction was usurious, and defeats the title attempted to be acquired by the plaintiff by virtue of the transfer of the bill of lading. "Without discussing the question whether usury can be set up in such a case, in consequence of an omission to set it up in the pleadings, it is sufficient to say that under the act of 1870, chapter 163 (Sess. Laws of 1870, p. 437), the former rule, by which the contract upon which a greater rate of interest than seven per cent per annum is secured was void, is abrogated so far as this plaintiff is concerned, and the only forfeiture resulting from the taking of excessive interest, is confined to the forfeiture of twice the amount of excessive interest taken, which is to be sued for and recovered by the persons paying the same, or their legal representatives. Nims, not being a party, to the action, the evidence that a greater rate of interest than seven per cent was exacted on the discount of the note, was wholly immaterial for any purpose, and was properly rejected by the referee. The defendant also objects to the recovery by the plaintiff, upon the ground that the demand made by it was of the entire cargoes of the two canal boats, upon which the wheat was subsequently loaded, whereas those boats contained a comparatively small quantity of wheat not a part of the cargo of the Empire State. It is a sufficient answer to this objection that it is not necessary to rely upon the demand and refusal as evidence of the conversion, inasmuch as the defendants, before the commencement of the action, sold the entire amount of wheat contained on the two canal boats, and the recovery of the plaintiff was limited to the amount of the note held.by it, which was much less than the value of the portion of the wheat on the two canal boats, in which it had the special property.

The defense attempted to be made to the action, is that the defendants made advances to Nims on the same wheat, represented to be loaded upon two canal boats, the Hattie Eliza, and the Little-field. The facts concerning this latter transaction, as found by the referee upon the evidence, are, in substance, as follows: On the fourteenth day of November, Nims procured one Bissell, owner of two canal boats, the Hattie Eliza and Littlefield, to execute two bills of lading, signed by A. A. Bissell & Co., stating that the said Nims had shipped, on the said boats, as follows: On the Littlefield, 7,600 bushels of No. 2 Milwaukee wheat, and on the Hattie Eliza, 7,400 bushels of No. 2 Milwaukee wheat, to be transported to the city of New York, and there delivered to the defendants on account of said O. L. Nims, agent. These two canal bills of lading were delivered to said Nims. These bills of lading were utterly false, no wheat being, at the time they were executed, shipped on board of the said canal boats, or either of them, or in any way placed under the control of the master or owners of said boats. On receiving the canal bills of lading, Nims drew on the defendants at sight to his own order two several drafts, viz.: One draft dated November 14, 1871, directed to the defendants at New York, directing them to pay $9,500, and charge the same to the account of the Littlefield, and one other draft, same date, and in like terms, for $9,250. Each of these drafts was attached to the bill of lading, to which it appertained; each of the said drafts, with its bill of lading, was presented to and paid by the defendants, upon the faith of the bill of lading-attached thereto, and at the time of the payment of the said drafts, there was then, in fact, no wheat whatever upon said canal boats, or either of them.

The propeller Empire State arrived at Buffalo on the 16th day of November, 1871, and on the next morning discharged her cargo of wheat into the Niagara elevator, without any notice to the plaintiff of the arrival of said wheat, or the place at which it was delivered. Nims, to whose care the wheat was consigned by the Empire State bill of lading, caused the wheat to be unloaded at the elevator, and took from the elevating company a warehouse receipt to his own order. The plaintiff had taken no steps to obtain possession of the wheat, and had not notified the master of the Empire State that it held the bill of lading. At the time of procuring the canal bills of lading, Nims had in transit on the lakes, and upon certain other vessels, wheat known in the market as No. 2 Milwaukee wheat, which he intended to ship on the said two canal boats, when it should arrive at Buffalo, to be covered by the said two bills of lading. But the defendants acted in good faith in paying the drafts of Nims drawn against the two canal bills of lading, and had no notice at the time of payment, that the said bills of lading were false, nor did it appear that No. 3 Chicago wheat, specified in the bill of lading of the Empire State, could be distinguished from No. 2 Milwaukee on ordinary inspection. But Nims had no reference to the cargo of the Empire State when he procured the canal bills of lading, and the defendants had no knowledge of the existence of the cargo of the Empire State, or of the transactions between Nims and the plaintiff in reference thereto. The plaintiff gave no authority to Nims to take the possession or control of the wheat on board the Empire State, or afterwards. But on the 17th of November, 1871, the said Nims, without the knowledge or consent of the plaintiff, caused the wheat, which had been deposited by the Empire State, to be loaded on the two canal boats, and directed the captains of said boats to proceed with the same to New York, and deliver the same to the defendants, which was done. Before the sale of the wheat by the defendants, they were fully notified of the claim of the plaintiff to the same, and of the facts and circumstances under which the same arose.

Ve are of the opinion that the defendants acquired no title to the wheat which constituted the cargo of the Empire State, by reason of their advances on the faith of the canal bills of lading. At the time when the advances were made by the payment of the drafts of Nims there was in fact no wheat whatever on board said canal boats, or even in the custody of Nims, but the bills of lading executed by Bissell & Co. were wholly false and fraudulent.

The defendants insist that the plaintiff had in some way forfeited its title, by negligence in omitting to exercise vigilance in securing the actual possession of the cargo of the Empire State so that Nims, by reason of this neglect and lack of vigilance, was enabled to get the apparent possession or control of the property. It perhaps might' be an answer to this claim, that at the time when the defendants made the advances on the canal bills of lading Nims had not the possession or control of the wheat (which had not yet arrived at Buffalo), and that the canal bills of lading had not been made or sent forward with any reference to the cargo of the Empire State, or any expected possession thereof. But if we are correct in the supposition that the transaction between Nims and the plaintiff and his indorsement and transfer of the bill of lading to the plaintiff conferred on the latter the legal title to the wheat, it is not perceived how any neglect or want of vigilance in asserting its title conld forfeit it, in the absence of any positive act or consent, whereby the apparent control of the property was conferred on Nims. The plaintiff had done nothing to give any credit to the canal bills of lading, but was a stranger to and wholly ignorant of the transaction in which they were issued. The defendants had parted with their money by way of advances on the false canal bills of lading, without any possession or apparent ownership of the wheat in controversy, in Nims. And the subsequent wrongful act on the part of Nims, in taking possession of the wheat and causing it to be sent to the defendants by the same canal boats, of the owners of which he had procured the false bills of lading, could not have the effect of conferring title on the defendants, even if intended by Nims for that purpose. The defendants had been defrauded by relying upon the false bills of lading, and had not in fact made any advances upon the wheat in controversy.

We do not think the act of 1830, commonly called the factors’ act,” affects this case. The wheat was not shipped in the name or for the account of Nims with the knowledge or consent of the plaintiff, nor was Nims intrusted with the possession thereof at all by the true owner, much less “for the purpose of sale, or as security for any advances to be made or obtained thereon.” In point of fact, no advances had been made by the defendants upon the wheat in controversy. The advances had been made on the credit of false bills of lading, and before Nims had obtained possession of the cargo of the Empire State, and the pecuniary obligation of Nims to the defendants, growing out of the fraud practised on them by means of the false bills of lading, was in the nature of a precedent debt, and such as is described in the fourth section of the “ factors’ act,” which provides that in such case the creditor shall not acquire or enforce any right to the merchandise other than such as might have been enforced by Nims himself, admitting that he was the agent of the plaintiff in taking possession of tbe wheat, which, as we understand the case, is the point sought to be established by the defendants by proof of other transactions between the plaintiff and Nims, with reference to other cargoes. Ve think the defendants cannot claim that they made any advances on the wheat in controversy, or upon any possession thereof'by Nims, and the advances which they did make on the false bills of lading, were no more advances on the wheat in controversy than, upon any other wheat, which might have been at the same time in process of transit on the lakes, and of which Nims might have wrongfully acquired the possession subsequent to the advancing by the defendants. If this conclusion is correct, it seems to be an answer to all the points of the defense, whether based upon the particular circumstances in this case, or upon the mode in which similar business had been transacted between the plaintiff and Nims.

The judgment is affirmed.

Present.— Mullin, P. J., Smith and Taloott, JJ.

Ordered accordingly.


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    EUNICE M. STANTON, CAROLINE CLUTE and MARY ANDERSON, Appellants, v. MARY L. CROSBY and SALMON H. PALMER, as Administrators, etc., of ALFRED C. CROSBY, Deceased, Respondents.

      Divorce — Sei'vice by publication —jurisdiction —frond—Application by widow to set aside letters of administ/ration — dem'ee of divorce map be attacked collaterally in.

    In. actions for divorce, in which tlie defendant does not reside in the county in which the action is brought, the statutes of Ohio authorize the summons to be served by publication, and require in such case that the summons and a copy of the petition be forthwith mailed to the defendant, unless it appear to the court that his or her residence is unknown to the applicant and cannot be ascertained by him with reasonable diligence. Under these statutes a husband procured a divorce from his wife, the summons having been served by publication and no copy having been mailed to the wife, the record alleging that the defendant’s residence was unknown, and that the petitioner had used due diligence to ascertain the same.

      It appeared that in fact tlie residence of the defendant was at that time known to the petitioner. Held, (1) that the court failed to acquire jurisdiction of the action for the reason that a copy of the summons was not mailed to the defendant as required by law; (2) that even if jurisdiction were acquired, it was based upon fraud and falsehood, and that the courts of this State would treat the decree obtained thereby as null and void, as against the defendant therein.
    The invalidity of such decree may he set up in a collateral proceeding, upon an application by the widow to set aside letters of administration granted upon the estate of her deceased husband, on the ground that she was entitled to administer the same.
    Appeal . from a . decree of tbe surrogate of Steuben county, revoking letters of administration, heretofore issued to the appellants, upon the estate of Alfred C. Crosby, deceased, and issuing letters thereon to the respondents, the respondent Maria L. Crosby claiming to be entitled thereto as widow of the deceased. Upon the hearing before the surrogate the' following opinion was delivered by him.
    The Sureogate :
    This application is founded upon an alleged false representation upon which letters of administration have heretofore been granted to respondents, upon the estate of Albert C. Crosby, deceased. The alleged false representation consisted in the allegation, that the intestate left no widow. The petitioner in the present proceeding claims to be the widow of deceased, and as such, entitled to administration on his estate. It is admitted that petitioner was married to intestate on the 16th day of August, 1860, but respondents insist that the marriage was dissolved by the decree of a court of competent jurisdiction in Ohio, where the parties were domiciled. After marriage, which took place in Michigan, the parties having lived in several places, finally became residents of Coshoc-ton, Ohio, remaining together till September, 1864, at which time the petitioner left the intestate, going first to one place and then to another, and at last, in 1866, to Cleveland, where she lived, supporting herself by working as a dressmaker until the spring of 1873.
    On the 26th of March, 1869, intestate filed, in the Court of Common Pleas of Miami county, Ohio, his petition for divorce from Maria L. Crosby, and a dissolution of his marriage with her, setting forth that he was a resident of Ohio for three years, then last past, and at the time a Iona fide resident of the county of Miami, and, as a ground for the divorce prayed for, that the said Maria L. Crosby had left and abandoned him without just cause or provocation in September, 1864, and remained willfully absent ever since, which, it appears by the law of Ohio, is just cause for dissolving the marriage. On the 30th June, 1869, a decree was entered, dissolving the marriage, commencing as follows:
    “ And now comes the said Alfred C. Crosby, by M. H. Jones, his attorney, and thereupon this cause came on to be heard upon the petition and testimony, and was ax-gued by counsel, on consideration whereof the court do find that due notice of the filing and pendency of this petition was given to the said defendant according to law, etc.”
    The petitioner claims that notwithstanding this finding of the decree, the coxxrt did not obtain juilsdietion of the defendant, and that the decree is therefore null and void. The statute of Ohio, produced in evidence, provides: “ That in all cases where a divorce shall be applied for, the complainant shall file his or her petition in the office of the clerk of the Court of Common Pleas, of the proper county, which petition shall state the true cause of complaint, and if the adverse party is a resident of the county in which the petition is filed, the clei’k of said court shall issue a summons directed to the shei’iff of the county, which, together with a copy of the petition, shall be served on the advei-se party, at* least six weeks befoi’e the heaiung of the case; but if the defendant is not a resident of such county, then notice of the pendency of said petition, containing the substance and prayer thereof, shall be given by publication in some newspaper of general circulation in the county in which the case is pending, for the term of six consecutive weeks, and in such a case a summons and copy of the petition shall forthwith on the filing of the petition, be deposited in the post-office, directed to the defendant at his or her place of residence, unless it shall be made to appear to the court by affidavit or otherwise, that such l-esidence is unknown to the applicant, and could not with reasonable diligene'e, be ascertained by him or her; or if the defendant shall reside in any other county of this State, the applicant, may, at his or her election, give notice by a service of a summons and a copy of the petition, at least'six weeks before the bearing of said ease, and said case may be heard and decided at any time after the expiration of six' weeks from the service of notice, either by service of summons or after the first publication in some newspaper as provided in this section.”
    Several objections are taken to the sufficiency of the averments and proofs appearing in the record, to show the jurisdiction of the Miami Court of Common Pleas over the person of the respondent in the divorce proceedings, but I think these averments and proofs are colorable, to say the least, and as the Ohio court has pronounced them sufficient, this adjudication is conclusive in the courts of this State. The defects, if any, are matters of practice, and cannot be questioned collaterally. (Van Deusen v. Sweet, 51 N. Y., 378-386.)
    It is, however, well settled, that want of jurisdiction over the party may be shown even in contradiction to the averments of the record. In this case if the respondent in the petition for divorce had been a resident of the county when the petition was filed, jurisdiction could have been obtained only by personal service of process. If the party on whom, service was to be made was not a resident of such county, service was to be made by publication in a newspaper of general circulation, and also by depositing the summons and a copy of the petition in the post-office, directed to the defendant at his or her place of residence, unless it should be made to appear to the court that such residence was unknown and could not with reasonable diligence be ascertained.
    There is an averment in the record that the defendant’s residence was unknown, and that the petitioner therein had used due diligence to ascertain the same. There is no proof of a deposit of the summons and copy of petition in the post-office, directed to the defendant, and if it is true that her residence was unknown and could not, with reasonable diligence, be ascertained, this was unnecessary ; the service was complete by publication alone, and the jurisdiction of the court over the parties complete, they being both residents of the State where the proceedings were pending.
    It is proved that no personal service was made, and that the defendant never had notice of the proceedings till after the decree was made. It is also satisfactorily proven that at and during the time of the pendency of the proceedings for divorce, the residence of the defendant was known to the petitioner, the intestate. It is proved and not contradicted, that sbe was a resident of Cleveland in tbe State of Ohio, from 1866 to 1873, and was not absent from it during that time, except two weeks following the 11th of March, 1869, when she went to Pontiac, in Michigan, to attend a funeral. She herself testifies that she saw him at her boarding-house in Cleveland, where he called on her three times in 1867. She also saw him in 1868, once in June and once in the middle or last of November, at Mr. Smith’s, with whom she boarded from December, 1867, to December, 1868, and whose house she made her home till 1870. Mrs. Smith, whose evidence was taken by commission, testified to her residence at her house in 1868, and the months of January, February and March, 1869. That in 1868 Crosby called at her house, and again in the spring or summer of 1869. That she heard a conversation between him and her hired girl in which he inquii’ed for Mrs. Crosby and asked what time she would be at home that evening, and was informed by the girl that she would be at home at seven o’clock. He also inquired what time she left in the morning, and was told by the girl that she left at half-past six.
    Mary Stapleton testifies that in 1868 and in January, February and March, 1869, she resided with Henry Smith on St. Clair street, Cleveland, Ohio; that Crosby called there in 1868, also in January, February and ’ March, 1869. On the first occasion he asked for Mrs. Crosby, and was told she was there. The last time he-also asked if she was there and was told she was not, but would be there at seven o’clock in the evening and if he wanted to see her he could do so between six and one-half and seven o’clock in the morning. Mrs. Crosby testifies she saw Crosby at Smith’s in 1868.
    Almeda Carpenter testifies that in 1868 and in January, February and March, 1869, she resided at No. 76 Ontario street, in Cleveland. That in 1868 Crosby called at her residence but made no inquiry about his wife. That he called again in the forepart of 1869 and inquired where she was. The witness directed him to inquire at Mr. Smith’s, and he then requested her (witness) to tell her that he had got a divorce from her.
    Notwithstanding a discrepancy between Almeda Carpenter and the other witness as to the fact of Mrs. Crosby’s residence at No. 76 Ontario street in 1868, it is not controverted that she was a resident of Cleveland from 1866 to a period subsequent to the decree of divorce, being absent but two weeks in the whole time, and then only temporarily.
    The evidence leaves no doubt that Crosby knew Cleveland to be her residence in 1867 and in 1868; and also in 1869, very soon after he obtained the decree. The conclusion is inevitable that at the time of filing his petition and during the pendency of the proceedings therein her residence was known to him.
    If it were so known the averment in the' record that it was not, was a falsehood and a fraud, practiced, and continued to confer jurisdiction upon the court over the person of defendant by a constructive service which should give her no notice of the proceedings of which, if the truth had appeared, she would,.in all likelihood, have received actual notice.
    I have come to the conclusion that the Ohio court failed to obtain jurisdiction of the defendant in the proceedings for divorce, for want of such service of the summons and petition on her as was required by law in cases where the residence of the defendant is not unknown. But if the proof made to the court was sufficient to confer jurisdiction it was based on falsehood and fraud, practiced on the court toward the defendant, which entitles her and calls on this court to treat the decree obtained thereby as a nullity. It is true as a general rule that fraud, in obtaining a judgment, cannot be set up in a collateral proceeding by a party or one representing or in privity with him. But this rule only relates to fraud which involves the merits of the judgment. It does not govern the case of jurisdiction fraudulently attempted to be obtained.
    I cannot find that the precise question involved in this case has ever been decided, but there are numerous cases which I think establish a principle which renders the decree in question invalid. {Borden v. Fiteh, 15 Johns., 141; Christmas v. Bussell, 5 Wall. [IT. S. R.], 304; Dunlap v. Cady, 31 Iowa, 260; 7 Am.er. R., 129; Goupil v. Simonson, 3 Abb. Pr., 474; Metealf v. Ciarle, 41 Barb., 47; Carpenter v. Spooner, 2 Sandf., 717.) And it may be impeached collaterally for want of jurisdiction, or fraud in obtaining it. (Borden y. Fitch, 15 Johns., 141; Christmas v. Bussell, 5 Wall., 304; Thompson v. Whitman, 18 Wend., 457; Knowles v. Gas-light Co., 19 id., 58; Hill v. Modehull, 11 L. J., 223; Kerr v. Kerr, 41 N. Y., 272.) It is urged on the part of respondents that by omitting after notice of the decree to take steps to set it aside and otherwise acquiescing in it, petitioner has waived her right to object to its validity. She has, however, taken no benefit under the decree nor done any thing to induce the deceased or his representatives to any line of action prejudicial to their interests in consequence of it. There is no estoppel. It is her right to resist it wherever it is sought to be used against her. (Dunlap v. Cady, 31 Iowa, 260.) By reason, therefore, of the false representation in the petition on which administration was heretofore granted, the same must be revoked and letters issued to the petitioner as the widow of intestate.

      Holies c& Stevens, for the appellants.

      Humsey <& Miller, for the respondents.
    The statute gives the surrogate authority to revoke letters of administration granted on false representations, made by the persons to whom the same were granted. (Laws of 1837, chap. 460, § 34; 4 Statutes at Large, 493; Kerr v. Kerr, 41 N. Y., 272, 276.) Proceedings for divorce in Ohio as well as in New York depend entirely upon the statute, and were not known or recognized at common law or in Courts of Chancery. (Peugnet v. Peters, 48 Barb., 566; Tappan v. Tappan, 6 Ohio St., 64, 66.) And the court attempting to exercise jurisdiction in such a case, although a court of general jurisdiction acts, guoad hoe, as a court of limited and inferior jurisdiction, and the record must show that its powers were strictly pursued. (Denning v. Corwin, 11 Wend., 647; Foot v. Stevens, 17 id., 483, 488; Commonwealth v. Blood, 97 Mass., 538; Folger v. Columbian Ins. Co., 99 Mass., 267; Castelanos v. Jones, 1 Seld., 164; Frees v. Ford, 2 id., 176; Edmiston v. Edmiston, 2 Ohio, 251, 252.) In such a case nothing is presumed in favor of jurisdiction. It must be shown affirmatively. (Ransom v. Williams, 2 Wall., 313; People v. Hulbert, 46 N. Y., 110, 115 ; Williams v. Bcvrnaman, 28 How. Pr., 59, 65; Reynolds v. Stansbury, 20 Ohio, 344, 353.) If certain facts required by statute to confer jurisdiction do not appear on the face of the record they are presumed not to exist. (Jones
      v. Reed, 1 Johns. Cas., 20 ; Bloomy. Burdick, 1 Hill, 130; People v. Ransom, 56 Barb., 514, 519.) It is also settled that when the judgment of a court of a sister State is sought to be used in the courts of any other State, the record must show upon its face that the court had jurisdiction of the person of defendant as well as of the subject-matter of the action; and if it fails to show such fact the judgment is a nullity, and it makes no difference whether the court is one of limited or of general jurisdiction within its own territory. {Royes v. Butler, 6 Barb., 613, 617; Shumway v. Still-man, 6 Wend., 447; Savage, Oh. J., 450, 453; Aldrich v. Kinney, 4 Conn., 380, 384, 385 ; Lincoln v. Tower, 2 McLean, 473; Westervelt v. Lewis, id., 511; Gleason v. Dodd, 4 Mete., 333; Bradshaw v. Death, 13 Wend., 407; Cow. & Hill’s Notes [1st ed.], 903, note 637; 1 Greenl. Ev., § 540; Story on Const., § 1310; Pelton y. Plainer, 13 Ohio, 209, 219.) And where the court attempts to get jurisdiction by constructive service as in this case, the existence of the jurisdictional fact to give the right to constructive service and a proper and exact compliance with the statutory mode of constructive service must appear or the judgment is void. {Hosier v. Waful, 56 Barb., 80; Cook v. Barren, 34 id., 95; Bixby v. Smith, 5 N. Y. S. C., 279, 281; Halletl v. Righters, 13 How. Pr., 43; Whitehead v. Post, 3 West. L. M., 195; 2 McYey’s Ohio Dig., 121, par. 61.) Although the record states facts showing jurisdiction it may be contradicted as to those facts, and if they do not exist the record is a nullity. {Thompson v. Whitman, 18 Wall., 457; Knowles v. Gas-light Co., 19 id., 58; Dobson v. Pearce, 12 N. Y., 156, 164; Hoffmam, v. Hoffman, 46 id., 30; Webster v. Reid, 11 How., 437, 460.) Where jurisdiction is obtained by false and fraudulent statements of fact made to the court, the judgment entered in such an action is void. {Bradst/reet v. Neptune Ins. Co.., 3 Sumn., 600; Webster v. Reid, 11 How., 437, 460; Jackson v. Jackson, 1 Johns., 424, 433; Borden v. Fitch, 15 id., 121, 145; Bwrnley v. Stevenson, 24 Ohio St., 474, 480; Noyes v. Butler, 6 Barb., 613, 616; Kinnier v. Kinnier, 45 N. Y., 535; Dtcnlap v. Cody, 31 Iowa, 260; 7 Am., 129; Story on Oonfl. Laws, § 609; Lazier v. Westcott, 26 N. Y., 146, 151; Kerr v. Kerr, 41 id., 272, 275.) The existence of the jurisdictional fact may be disproved by parol evidence, although it is distinctly averred in the record. (Starbuclc v. Mwrray, 5 Wend., 148; Webster v. Reid, 11 How., 437, 459.)

       Decided June term, 1876,

   On the hearing at General Term the order appealed from was affirmed, with costs, on the opinion delivered by the surrogate.

Present — MulliN, P. J., Smith and Talcott, JJ.

Order appealed from affirmed with costs, on the opinion delivered by surrogate.


text:
    HELON B. ACKERMAN, Respondent, v. CHARLES B. REDFIELD, Appellant.

      Intermediate consignee of goods — when liable for freight and changes.

    Although, the consignee is prima facie the owner of goods consigned to him, and as such is liable for the freight and charges thereon, yet the mere receipt of goods by one not the owner thereof — e. g., the intermediate consignee — with knowledge that they are subject to a charge for freight, does not render such person liable therefor, where the master of the vessel knows that such person is not the owner.
    Such liability is only incurred when the goods are received in pursuance'of a bill of la ding,'making the payment of the freight a condition precedent to the delivery, or when he is notified by the master that if he takes the goods he must take them subject to the charges.

      Don't v. Ensign (47 N. Y., 619) followed.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee, in an action brought to recover the freight on a canal boat load of Hour, delivered by plaintiff by the direction of the defendant on board of a barge at Albany.

      Stephen K. Williams, for the appellant.
    The defendant was intermediate consignee or agent of Eish, Ellison & Co. to tranship the flour at Albany, and to see to collection of freight for said firm, and was under no obligation to pay plaintiff his freight. (Abbott on Shipping, 414, 415, 416, 421, 423; Adds, on Cont., 486; Oole-mamv. Lambert, 5 Mees. & Weis., 502; Scarf v. Tobin, 3 B. & Ad., 523; Dart v. Ensign, 47 N. H., 619.) The plaintiff knew that defendant was mere agent, not owner, of the flour, and was not liable for the freight, tinder the circumstances of this case. (Amos v. Terrvperly, 8 Mees. & Weis., 798; Davis v. Pattison, 24 N. Y., 317: Me Andrew v. Whiüock, 52 id., 40.)

      J. Yandenberg, for the respondent.
   Taloott, J.:

This is an appeal from a judgment rendered on the report of a referee.

The action is to recover the freight on a canal boat load of flour delivered on board of a barge at Albany, by the direction of the defendant. The plaintiff was master and owner of the canal boat Julia Krapp, and as such received the said cargo of flour on board his canal boat at Rochester, in July, 1864, and went to Albany under what is termed a skeleton bill of lading, which he proved and relied upon. This bill of lading consigned the cargo, 1,770 barrels of flour, to the defendant at Albany, and was as follows:

“Roohestee, July 19, 1864.
“ Shipped, by R. T. Co., on board boat Julia Krapp, Captain-, the following property, in apparent good order.
“ Marks and owners.
“ C. B. Redfield, Albany, N. Y., 1,770 bbls. Flour, 378,780
“FISH, ELLISON & Co. Ayres.”

Fish, Ellison & Company were commission merchants at Rochester ; Redfield the defendant, was a member of the firm of C. B. Redfield & Company, engaged in transportation by barges on the Hudson river, between Albany and New York.

Before leaving Rochester, the plaintiff had signed a bill of lading in a book kept by Fish, Ellison & Company, which was in substance as follows:

“Boat Julia Krapp, July 19, 1864.
“ Acc’t.
H. M. Kinne, 1,770 bbls flour, 70, , - - $1,239 00
“ Care J. M. Fiske & Co., N. Y. Maxwells.’
“ Back charges to Whitney.
177 00
$1,062 00
[Here followed a memorandum of various charges, consisting of cash, tolls, insurance, hoisting, lumber and commission.]
Redfield & Co. Advance Capt. for expenses up.
“ Received the above in good order to be delivered as consigned.
(Signed) “E B. ACKERMAN.”

Redfield, it will be seen, is not named at all as a consignee in the bill of lading signed by the plaintiff, otherwise than may be inferred from the direction, “ Redfield & Go. Advance Capt. for expenses up.” The plaintiff states that he received the flour in the first instance to carry to New York, and some negotiation was afterwards had, by which it was arranged that he was to leave the flour at Albany; and what is termed the skeleton bill of lading was afterwards made out. The owner of the flour was H. M. Kinne; and George J. Whitney, of Rochester, from whose warehouse the flour was taken, when- laden on board the canal boat, claimed a lien on it of ten cents per barrel, <S>1/T/T in all, for manufacturing the flour from wheat.

When the plaintiff took the wheat from Whitney’s warehouse he signed another paper, as follows:

RoohestbR, July 19, 1864.
“Received of George J. Whitney, on board boat Julia Krapp, of-, in good order, the following articles, viz.:
“ Acc’t J. H. Pool & Co. (care J. M. Fiske & Co.).
“Maxiwell 1YT0, which property as above specified the said captain agrees to deliver in like order and without delay as above consigned. “ H. B. ACKERMAN.”

A memorandum or shipping bill was also sent by Fish, Ellison & Co. to Redfield & Co., in which the flour was stated to be shipped for the account of H. M. Kinne, care of J. M. Fiske & Co., New York, who were the only persons named as consignees, but also containing the direction, “ Redfield & Co., advance Capt. for expenses up.” The most that can be affirmed of Redfield, the defendant, or Redfield & Co., is that he or they were intermediate consignees of Fish, Ellison and Co., empowered to receive and take charge of the flour at Albany, and see to the shipping of the same thence to New York to the ultimate consignees, without any direction to pay the freight or charges, any further than was embraced in the direction to advance the captain of the canal boat money for his expenses back to Rochester.

The consignee is prima facie the owner of the goods, and as such liable for the freight; but if he be not, in fact, the owner, he is not liable for the freight, simpliciter as consignee, but only upon a contract express or implied, to pay the freight. It is not the mere receipt of goods by a person who is not the owner, with the knowledge that they are subject to a charge for freight, that will bind him to pay it; but if he receive the goods in pursuance of a bill of lading, making the payment of the freight a condition precedent to the delivery, or if he has notice from the master that if he takes the goods he must take them subject to the charge, he will be liable to pay it. But a person who is only agent for the consignor, and who is known to the master to be acting in that character, does not make himself personally answerable for the freight by receiving the goods. (See Abbott on Shipping, 421, 422; Coleman v. Lambert, 5 M. & W., 502; Scaife v. Tobin, 3 Barn. & Adol., 523; Ward v. Felton, 1 East, 507; Amos v. Temperly, 8 M. & W., 798; Addison on Contracts [6th ed.], 457; 1 Parsons on Mar. Law, 220.)

These principles have been fully recognized and enforced'by the Court of Appeals in Dart v. Ensign (47 N. Y., 619), in which case the decision of the court below (2 Lans., 383), that a liability for the freight arose from the acceptance of the goods was reversed, and it was held that in the absence of a stipulation or condition in a contract for transportation, by which an intermediate consignee is to pay the freight, such consignee is not liable for the freight of goods sent to, or received by him in the course of transit, to forward the same to the ultimate consignee, when the agency is known to the carrier at the time of the delivery of the goods, and he delivers without making any claim for back freight or giving notice that any claim existed on his part; and that no promise by an intermediate consignee will be implied from a bill of lading, consigning the goods to the care of such intermediate consignee for the owner. Agents have been héld personally liable to pay the freight on goods consigned to them, on the ground that, by the terms of the bill of lading as usually drawn, the consignee is to pay the freight. The language usually employed in a bill of lading for this purpose is, “he or they paying freight for the same;” and whoever accepts a delivery under such a bill of lading contracts, by implication, to pay the freight chargeable upon the property so received.

The referee in this case has found that the freight was to be collected of “said consignee,” meaning the defendant. We find no evidence in the case that this was so. On the other hand, so far as there was any evidence on the subject, it tends to show that the freight was to be settled with and paid by Fish, Ellison & Go., at Rochester.

The referee also finds that the defendant accepted and received the flour, “ agreeing to pay the freight thereon, or so much thereof as had not been paid.” We find no evidence of any such agreement. The plaintiff does not claim that any such express agreement was made ; and the various conversations testified to by him do not contain any such agreement. On the other hand, the defendant states that he expressly informed the plaintiff at the time of the delivery that he had no authority to make him any advances, except what should be necessary for expenses back to Rochester. We assume, therefore, that the referee held, as the Supreme Court had held in Dart v. Ensign, that the receipt of the property, of itself, was evidence of an agreement to pay the freight.

The plaintiff knew that Redfield did not claim to be the owner of the flour; he had signed two different instruments, in which it was stated that the ultimate consignee was at New York. None of these bills of lading or shipping bills, either that signed at the warehouse of Whitney in the book of Fish, Ellison & Co., or that which the captain had, and under which he claimed affixed the condition of payment of the freight to the delivery to Redfield, or Redfield & Co., or indicated that he or they were to pay the freight on the property as far as Albany. Redfield & Co. were' requested or directed only to advance the captain for his expenses up, which is inconsistent with the idea that they were expected to pay him his full freight. This advance Redfield & Co. made; and we think it clear, upon the principles laid down by the Court of Appeals in Dart v. Ensign (supra), that the defendant was not personally liable, at most, for any amount beyond sufficient with what he had already received from Fish, Ellison & Co., to pay the expenses of the plaintiff and his boat back to Rochester; and this was paid him. The judgment is, therefore, erroneous.

Judgment reversed, and to be referred to a new referee, costs to abide the event.

Present — MulliN, P. J., SMith and Taloott, JJ.

Ordered accordingly.