text:
    PATRICK RYAN, as Administrator, etc., of ALICE RYAN, Deceased, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Negligent hilling of a child, crossing a railroad 1/i'ach — when the question of negligence should he left to the jury.

    The plaintiff's intestate, a bright, intelligent girl' eight years old, lived with the plaintiff on the north side of Yan Anden street, in Syracuse, a few doors to-the east of the place where the said street was crossed, at right angles, by twelve tracks of the defendant, a railroad company. The crossing was in a thickly-settled portion of the city, and no flagman was kept there. The plaintiff left her home in the afternoon to go to a grocery store situated in a street lying-west of the crossing. As she approached the tracks a freight train passed over the street, going north, on one of the middle tracks, at the rate of some fifteen miles an hour. The deceased stopped and looked at the passing cars, turning her face towards the north, the direction in which the cars were moving. As soon as the last car had passed, and without looking towards the south, she stepped forward to cross the tracks, when she was struck and killed by a caboose car which had been detached from and was following the train at a rate of five or six miles an hour. The caboose car crossed the south side of Yan Anden street as the rear car of the train was leaving the north line-thereof.
    In an action to recover damages for the negligent killing of the intestate:

      Meld, that the court erred in non-suiting the plaintiff; that the question of the contributory negligence of the deceased and that of the defendant’s negligence should have been left to the jury.
    Motion by tbe plaintiff to set aside a nonsuit, and for a new trial,, in a case tried at. the Cayuga Circuit.
    The action was brought to recover damages for the alleged negligent killing of Alice Ryan, the plaintiff’s daughter. The exceptions were ordered to be heard at the General Term in the first instance. °

      Howland cfe Wheeler, for the plaintiff.

      W. H. Adams, for the defendant.
   BARKER, J.:

On this motion we may assume that the nonsuit was granted on two grounds: First. That the plaintiff failed to establish any negligence on the part of the defendant; and, Second. That from-all the evidence presented, it appeared that the intestate herself was guilty of contributory negligence.

The plaintiff now contends that the evidence fairly tended to support the reverse of both of these propositions, and the truth of the contention should have been submitted to the jury for their determination. The material facts can be briefly stated. The accident, which resulted in the death of the intestate, occurred in the city of Auburn, at Yan Anden street crossing; the street runs east and west and is forty-nine feet wide. The defendant’s tracks, twelve in number, cross the street at right angles and at grade. This crossing is in the thickly settled part of the city, houses and stores being located on the north side of the street and on both sides of the tracks. The plaintiff lived on the north side of Yan Anden street, some ten rods east from the tracks, and the deceased, a bright and intelligent girl, eight years old, lived with him. When injured she was crossing the tracks over the sidewalk, on the east side of the street, while on her way to a grocery store in State street, which intersected Yan Anden street a few rods west of the place of crossing. She had before visited the store, that afternoon, and returned to her home, and was at this time on her way to do another errand at the same place. She, as well as the family, were familiar with the tracks, and frequently crossed them at this place. She had attended school in another part of the city and was accustomed to be in the street unattended. The defendant did not keep a flagman at this crossing. As she approached the-tracks on this occasion a long freight train, drawn by one engine, passed over the street, going east, on one of the middle tracks, at the rate of some fifteen miles an hour. The deceased stopped east of all the tracks and some fifteen feet from the moving train as it passed over the street and sidewalk on which she stood, and, as the evidence tended to prove, she was observing the passing cars with her face partly turned to the east, the direction in which the train was moving, and as soon as the last car passed over the sidewalk she stepped forward on to the tracks without turning her face to the west, the direction from which the caboose came which struck and killed her. If she had looked to the west before moving from where she stood she could have seen the caboose before it came into Yan Anden street and in time to have escaped the injury.

Without saying the defendant was guilty of manifest negligence in operating its road on this occasion, which resulted in the death of the intestate, we are of the opinion that the question of negligence should have been submitted to the jury for their determination. As this train was nearing the crossing, the caboose being the last car in the train, it was disconnected from the train and by its momentum followed the train at a lower rate of speed, so that when it reached Van Anden street it was running at the rate of five or six miles an hour, and as the main part of the train passed out of the street to the ease, the caboose was near, as the proof tended to show, the west line of the street. There was a brakeman on the caboose near the forward end, for the purpose of working the brake, and the proof tended to show that he did not observe the girl until the car was within forty or fifty feet of the place where 'she was struck, and that he then immediately set the brake, and when the car came to a stand the forward trucks were over her body.

There is ample room for saying that in running this car in this manner in and upon Van Anden street, the defendant was guilty of negligence and violated a duty it owed to the deceased, who was rightfully upon the street and crossing the tracks at the time she was injured. It was a street much used by all classes of persons. Passers-by who are detained in a street by a moving train made up of many cars and running so fast as fifteen miles an hour, are induced to believe, from the usual way of operating railroads, that as soon as the last car passes it is safe and prudent to cross the track on which the train is moving, and that danger is not to be apprehended by the movement of a detached car running on the same track and in the same direction as the train which has just passed and only a few feet distant therefrom.

The degree-1 of care exacted of railroad corporations crossing streets and highways varies according to the circumstances of the case. At crossings in the busy parts of cities and populous towns they are bound to exercise a very high degree of vigilance. The degree of care imposed by the law is not capable of exact definition, but, as the danger increases, arising from the mode of operating the road by moving cars on the tracks, or from the surrounding obstructions hiding from view the approach of trains, the duty of exercising increased caution and vigilance is imposed. It is not enough in all cases to absolve a railroad corporation from the charge of negligence that the statutory signals are given. The circumstances may be such as to require other precautions in the running of a train, or in the use and occupation of the tracks. There may be negligence which will charge the company, other than the bare omission to sound the whistle or ring the bell as required by the statute. (Weber v. N. Y. C. and H. R. R. R. Co., 58 N. Y., 451.)

Allowing a detached car to run over a public street immediately in the rear of a passing train, without any warning being given of its approach, except that derived from the noise of its own tread, does expose travelers on foot or in carriages to more than ordinary danger. This is obviously so, and would be so pronounced by most persons who are familiar with the hazards incident to travel upon streets intersected by railroad tracks. The exposure is similar in kind and degree to that caused by making what is termed a “running switch^’ which may be termed a negligent act when done in a street or highway, unless the company exercise great and unusual caution in giving notice to travelers. (Brown v. N. Y. Central R. R. Co., 32 N. Y., 600.)

This case presents such features that it was for the jury to say whether the defendant used due and proper care in running the detached car as it did, without notice being given of its approach. If the deceased had been an adult, we could not say, as a matter of law, under the circumstances of this case, that she was guilty of negligence in omitting to make an observation as to the condition of the track on which she was killed, before stepping on the same. In determining the question of her negligence, allowance must be made for her age and inexperience, and the same degree of care is not expected of a person of her years as of adults. The rule is now well settled that the same degree of care is not required of an' infant of tender years as is required of an adult. An infant to avoid an imputation of negligence is bound only to exercise that degree of care which can be reasonably expected of one of its age, and in passing on the question of contributory negligence the age of the infant, with all the other circumstances of the case, is to be considered by the jury. (Dowling v. N. Y. C. and H. R. R. R., 90 N. Y., 671, and the cases there cited; see, also, Haycroft v. L. S. and M. S. R., affirmed on appeal in 64 N. Y., 636.)

In the last cited case the facts and circumstances are strikingly-like those in this, so far as the question of contributory negligence is concerned, and a nonsuit was set aside, one having been granted at the circuit on the defendant’s motion.

New trial granted, with costs to abide the event.

Beadley and Haight, JJ., concurred; Smith, P. J., taking no part.

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


source: Caselaw Access Project

author: BARKER, J. !

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. EDWARD SEELEY, Appellant.

      Abduction — what facts constitute the offense — Penal Code, sec. 382, sub. 1.
    Under subdivision 1 of section 282 of the Penal Code, declaring that “a person who takes a female under the age of sixteen years for the purpose of prostitution or sexual intercourse, or without the consent of her father, mother, guardian or other person having legal charge of her person for the purpose of marriage,” is guilty of abduction, it is not necessary, to the commission of the crime, that the accused should in any case use any force or practice any fraud or deception; it is sufficient if the female is induced by his request, advice or persuasion, to go from the place where the accused meets and approaches her to some other place indicated by him and there has sexual intercourse with him.
    The offense may be committed without áta actual manual capture of the female, nor is it necessary that she be taken against her will.
    Appeal from a judgment of a Court of Oyer and Terminer, convicting the defendant of the crime of abduction.
    The appellant was convicted at the Monroe Oyer and Terminer for having abducted Lena Smith, a girl under the age of sixteen years, for the purpose of having sexual intercourse with her. In the first count in the indictment it is charged that the defendant unlawfully and feloniously did take Lena Smith, a female under sixteen years of age, for the purpose of having sexual intercourse with her. This count is framed under subdivision 1 of section 282 .of the Penal Code, as amended by chapter 46 of the Laws of 1884. The second and third counts charge offenses as defined in subdivisions 2 and 3 of the same section. The jury rendered a verdict of guilty as charged in the first count, and in their verdict did not find either way on the other counts.
    Lena Smith, the prosecutrix, lived with her parents in a house near the grounds or yards of the city hospital in the city of Rochester. The accused had charge of the yards and was. acquainted with and occasionally met Lena on the street in front of her father’s house. She testified, in substance, that on the evening of the day mentioned in the indictment she was on the street in front of her home in company with another girl, Jennie Brooks, of the age of twelve years, with whom she was acquainted, when the defendant came to them and commenced a conversation, and proposed to her that she go with him into the hospital grounds, and she refused and he then walked away. ILe soon returned to the same place and renewed the request, addressing himself to the prosecutrix, and asked her to go into the hospital yard and there have sexual intercourse with him, and offered to give her a dollar, which he said she could divide with her companion, Jennie Brooks. The prosecutrix then consented, and the defendant directed the way and the gate through which she should pass into the grounds, and the girl Jennie Brooks accompanied her; and he went by another way, passing through an alley, and they soon met in the grounds at the place designated by the defendant, a secluded part of the enclosure. "While in the grounds the defendant had sexual intercourse with both of the girls. They then separated, and the girls returned to the sidewalk in front of Lena’s home, where the accused soon joined them, and he gave Lena fifty cents, which she shared with the girl Jennie. The prosecution called the latter as a witness, and she fully corroborated the prosecutrix in her evidence, and the defendant’s confessions were proved, which also tended to establish his guilt and to confirm the story of the witnesses for the prosecution.
    One of the points made by the appellant on the trial was that the evidence did not constitute an offense within the sense and meaning of the statute.

      W. Ilenry Da/vis, for the appellant.

      W. H. Shaffer, assistant district attorney, for the respondents.
   BARKER, J. !

The statute creating and defining the offense of which the defendant was convicted, is terse in expression as well as plain in its provisions. It declares that “ a person who takes a female under the age of sixteen • years for the purpose of prostitution or sexual intercourse, or without the consent of her father, mother, guardian or other person having legal charge of her person, for the purpose of marriage * * * is guilty of abduction, and punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both.”

The only serious question presented is as to what acts on the part of the accused person will constitute an unlawful and criminal taking, within the sense and meaning of the statute. We think it clear, in view of the nature of the wrong which the statute intended to punish that it is not necessary to constitute the crime that the accused should in any case use any force or practice any fraud or deception, and that it is sufficient, within the statute, if the female is induced by his request, advice or persuasion, to go-from the place where the accused met and approached the prosecutrix with the request and solicitation for her to accompany him or meet him at some other place indicated by the accused, with the intent and purpose there to accomplish the wicked act of her defilement. The offense may be accomplished without an actual manual capture of the female, nor is it necessary that she be taken against her will. The section, as originally adopted, required that the taking should be without the consent of the father, mother, guardian or other person having legal charge of the prose-cutrix. To constitute the offense, as the statute now reads, it is not necessary that the girl should be taken from her parents or other custodian of her person. If the construction which we have placed upon the statute is the correct one, then the evidence was sufficient to sustain the conviction, and the defendant’s guilt was established beyond much, if any, doubt.

As the unlawful act mentioned in the statute constitutes the crime of abduction, we are aided in giving construction to the statute by the definition and meaning of the phrase abduction,” as the same is used by jurists, law writers and lexicographers. Blackstone defines abduction to be the taking or carrying away of the child of a parent or tbe wife of a husband, either by fraud, persuasion or open violence. (3 Blaekstone’s Commentaries, 139-140.) "When the word is used as a law phrase, Webster adopts and approves of this definition. The English statute on the same subject (9 Geo. IT, chap. 31, section 20) provided : That if any person shall unlawfully take or cause to be taken, any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father, or mother, or of any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanor.” The English courts in giving construction to this statute, have frequently held that there need be no force, actual or constructive, and that slight enticement and persuasion, by which the female either accompanies or meets the abductor is sufficient. (Regina v. Manktelow, 6 Cox Crim. Cases, 143; Regina v. Timmins, 8 id., 401.) In Regina v. Olifier (10 id., 403), the court said, that if the prosecutrix acted under the advice and persuasion of the accused, it constituted an unlawful and criminal taking within the meaning of the statute.

Upon the trial of an indictment, founded upon a section of the Revised Statutes which enacts that every person who shall take any woman, unlawfully against her will, with intent to compel her by force, menace or duress to marry him, or to marry any other person, or to be defiled, the court held that it was not necessary for the prosecution to show that actual physical violence had been used by the prisoner, to constitute a taking of the prosecutrix against her will within the meaning of the section, but that it was sufficient if she had been induced by deceit or false pretenses of the prisoner to go to the place, and proof that she had been induced to go there on the pretense that she could find employment as a servant, constituted a violation of the statute and brought the case within the sense and meaning of the law and justified a conviction. (Beyer v. The People, 86 N. Y., 369; Schnicker v. The People, 88 id., 194.)

We have looked into the case of Kauffman v. The People (11 Hun, 82), where the indictment was founded on chapter 105 of the Laws of 1848, and we are unable to find any point adjudicated contrary to the views which we have expressed. The charge of the court was fair and intelligent, clearly presenting for the consideration of the jury all the legal propositions involved, to which the defendant interposed no exceptions, and we are unable to discover any reason for reversing the judgment, after considering the legal questions presented.

The motion for a new trial after the verdict was rendered, upon the ground that the jury were guilty of misbehavior, was properly denied, and in reaching a conclusion on this question we follow the case of. the People v. Draper (28 Hun, 1), which is a decision of this court.

The omission of the jury to render a verdict upon the second and third counts is not such an irregularity as should lead to a new trial, for the omission to find one way or the other is equivalent to an acquittal on those counts, and a judgment as to them is a bar to a further prosecution. (People v. Dowling, 84 N. Y., 478.)

As judgment has been pronounced upon the conviction, and there does not appear that there has been any stay in its execution, it is only necessary for us to order an affirmance.

The judgment and order should be affirmed.

Smith, P. J., and Beadley, J., concurred; Haight, J., not voting.

Judgment and order affirmed.


author: BARKER, J.:

text:
    WILLIAM S. MOORE, as Assignee of EDWARD D. SEELEY, Respondent, v. ALEXANDER McKINSTRY, Jr., Appellant.

      Cause of action wising from fraudulent rerpresentations- — when it passes to the general assignee of the party injured thereby.

    In pursuance of negotiations had between one Seeley and Snow, the former sold to the latter a stock of goods, receiving therefor Snow’s note for the purchase-price, indorsed by one Clark. Snow being unacquainted with Seeley, referred him to the defendant, who, knowing that Snow and Clark were insolvent and unfit to be trusted, and contriving and intending to fraudulently deceive and injure Seeley, falsely, fraudulently and deceitfully represented and affirmed to him that Snow and Clark were perfectly good and responsible. The goods were shipped to and delivered at a store in the possession of the defendant, and some of the proceeds of the sale thereof were received by him, under an agreement that he was to have one-fourth of the goods in question for recommending the notes to be good. Thereafter Seeley executed a general assignment for the benefit of creditors, in the usual form, to the plaintiff.

      Meld, that Seeley had a cause of action against the defendant to recover the damages sustained hy reason of his fraudulent representations and acts, which cause of action passed to the plaintiff under the general assignment, and that an action could he brought thereon by the latter in his own name.

      Zabriikie v. Smith (18 N. Y., 82a), distinguished.
    Appeal from a judgment in the plaintiffs favor, entered upon a verdict rendered at the Ontario Circuit, for $2,829.35. The plaintiff is the general assignee of the goods and effects of Edward JD. Seeley, in trust for the benefit of the creditors of the latter. The assignment was executed and delivered on the 19th day of August, 1880. The action is for fraud and deceit on the part of the defendant, in malring false statements and representations as to the financial condition of Levi A. Snow and one Maggie Clark. Snow was at the time of the 'alleged false representations in negotiations with Seeley for the purchase of his stock of goods of the value of some $2,200, and proposed to give in payment therefor his own note, indorsed by the said Clark. The trade was consummated, the goods delivered and the notes of Snow, indorsed by Clark, were received in payment.
    The complaint alleges that Seeley was unacquainted with the financial condition of Snow and Clark, and pending the negotiations Snow referred Seeley to the defendant for information respecting their financial condition, and that the defendant, knowing that Snow and Clark were in insolvent circumstances and unfit to be trusted, but contriving and intending to fraudulently deceive and injure Seeley, falsely, fraudulently and deceitfully represented and affirmed to him that Snow and Clark were perfectly good and responsible, and that he himself had discounted Clark’s paper, and he considered her paper good, and if Seeley, in concluding a sale of the goods and merchandise, took in exchange the notes of the said Snow, indorsed by Clark, the defendant would discount them. The complaint contains the other customary allegations in such cases, .stating that the representations were false and untrue to the knowl edge of the defendant.
    The plaintiff’s counsel, in stating the case to the jury, mentioned the facts he intended to prove, and, among other things, stated that Snow applied to Seeley to purchase his goods and to pay therefor the sum of $2,279, by his notes indorsed' by Clark, and that Seeley was unacquainted with the financial condition of said Snow and Clark and being referred by Snow to the defendant, applied to the defendant for information respecting Snow and Clark’s financial condition; that the defendant, although he knew said parties were insolvent and unworthy of credit, with the intention of injuring and deceiving Seeley, represented and affirmed that both Snow and Clark were good and responsible for the amount named; and he proposed, also-, to prove the other facts and circumstances stated in the complaint. Thereupon and before any evidence was presented the defendant moved for a nonsuit, upon the ground that the cause of action set forth in the complaint was not assignable, nor did the facts stated in the plaintiff’s opening constitute a cause of action in the plaintiff’s favor. The motion was denied, and the defendant excepted. The plaintiff then gave evidence tending to establish the facts as stated in his opening and alleged in his complaint, and gave in evidence the assignment, the granting clause of which is as follows: “'The,, said Edward D. Seeley, the party of the first part, has sold and assigned * * * and ¿oes sell and assign * * * unto the party of the second part * * * all and singular the lands, goods, chattels, promissory notes, debts, claims and demands, property and effects of every description belonging to the said party of the first part.”
    The case also states that “ the evidence tended to show that the goods were shipped from East Broomfield (Seeley’s place of residence) to Syracuse (the residence of the defendant), and were delivered at a store, then in the possession of the defendant, and that the defendant had received some of the proceeds of the said goods ; that the defendant was to have one-fourth of the goods in question for recommending the said promissory notes to be good.” The plaintiff then rested, and the defendant renewed his motion for a nonsuit upon the same grounds as those before stated. The motion was denied, and the defendant again excepted. The bill of exceptions then states: “ The defendant thereupon gave evidence tending to contradict the evidence of the plaintiff upon the question of deceit alleged to have been practiced upon him.” None of the evidence or the charge of the court is set forth in the bill of exceptions. The answer was a general denial. This action was commenced in N ovember, 1880.

      Louis Marshall, for tbe appellant. ■

      Henry M. Field, for tbe respondent.
   BARKER, J.:

Tbe legal propositions presented on tbis appeal arise on tbe facts set forth in a bill of exceptions. Tbe only question argued, and it is tbe only one we have considered, is, was tbe cause of action wbicb accrued in Seeley’s favor, by reason of tbe fraud and deceit practiced by tbe defendant, assignable under tbe laws of tbis State at the time tbe general assignment was delivered to tbe plaintiff. By tbe common law, causes of action classed as ex delieto did not survive tbe death of the person injured, nor that of the wrongdoer; neither, were they assignable. One of tbe reasons upon wbicb tbis rule, that they were not assignable was based, ivas, that tbe title to a cause of action could not vest in a person who could not prosecute the same after tbe death of tbe party who suffered tbe injury. Tbe injustice of tbe rule was manifest as to a class of actions founded in tort, and was long ago recognized in England, and its rigidity relaxed in a large number of cases by parliamentary enactments, authorizing suits to be maintained by executors and administrators for causes of action existing in tbe lifetime of tbe deceased. (Broome’s Legal Maxims, m. p. 704; "Williams on Executors, 668.) Tbe English courts gave to these statutes a wide construction, and in all cases where tbe cause of action survived by virtue of these statutes, the injured party might transfer tbe same in bis lifetime and vest in the assignee a complete title with the same effect as a transfer of a chose in action founded on contract.

Tbe Revised Statutes have proceeded upon tbe assumption that tbis rule of tbe common law was in force in tbis State, and without legislative sanction actions for a tort could not be maintained against tbe tort-feasor by tbe personal representatives of tbe deceased party.

We find several statutes relative to tbis subject, and one enactment is : “ Executors and administrators shall have actions of trespass against any person who shall have wasted, destroyed, taken or carried away, or converted to bis own use tbe goods of their testator or intestate in bis lifetime. They may also maintain actions for trespass committed on tbe real estate of tbe deceased in his lifetime.” (2 R. S.j 114, § 4.) Other provisions relative to the same subject are-found in chapter 8, part 3, title 3, article 1, entitled “of suits by and against executors and administrators.” (2 R. S., 447, et seg.) In section 1 it is enacted : “ For wrongs done to the property, rights or interests of another, for which an action might be maintained against, the wrong-doer, such action may be brought by the person in jured, or, after his death, by his executors or administrators against such wrongdoer, and after his death against his executors or administrators in the-same manner and with the like effect in all respects as actions founded on contracts.” The limits placed upon this section are distinctly defined in the next section, which is as follows : “ But the preceding section shall not extend to actions for slander, for libel, or to-actions of assault and battery or false imprisonment; nor to actions-on the case for injuries to the person of the plaintiff or to the person of the testator or intestate of any executor or administrator.” These provisions of the statute are in full force and effect. (Cregin v. Brooklyn Crosstown R. Co., 75 N. Y., 192; Murphy v. N. Y. C. and H. R. R. R. Co., 31 Hun, 358 ; Kelsey v. Jewett, 34 Hun, 11.)

Prior to the enactment of chapter 15 of the Code of Civil Procedure, which went into operation September 1, 1880, thei’o was no direct and affhnative provision in any of our statutes permitting the assignment of causes of action' based on a tort, in the lifetime of the injured person, so as to vest in the assignee a title thereto. But the courts have given to the several statutes above quoted a broad and equitable construction, and since their enactment it has been uniformly held that, in all cases where, by force of any statute, the right of action survived to the personal representatives of the injured party or against those of the wrong-doer, the same was the subject of an assignment inter vivos. No further reference to the law on this subject, as it existed prior to the adoption of the first Code (1848 and 1849), is necessary in considering the question now presented. By sections 111 and 112 of that enactment it was provided that “ every action must be prosecuted in the name of the real party in interest. * * * But this section shall not be deemed to authorize the assignment of any right of action not arising out of contract.”

I am unable to find any adjudication which holds that these provisions had the effect to enlarge the class of cases in which an assignment might be made vesting the right of action in the assignee. But for the purpose of determining the cases which frequently came before the court involving the question, in whose name the action should be prosecuted under such requirement, it became necessary to consider whether the cause of action was transferable for the purpose of disposing of the question thus presented. One of the earliest cases on the subject, after the adoption of the Code, was Zabriskie v. Smith (13 N. Y., 322), and it was there held that an interest or claim to which the personal representatives of a deceased party would not succeed, was not the subject of an assignment by the injured party. In that case it was held that a cause of action arising from the fraud and deceit of the defendant in misrepresenting the financial condition of a third person, was not assignable, and the same was regarded as an injury purely personal, and could not be treated as an injury done to the personal estate of the deceived and injured party. This case has been frequently cited in subsequent, adjudications and much commented upon and sometimes criticised and doubted, yet the rule, as there laid down, has never been overruled in any case where the facts were no different from those there presented.

The learned counsel for the appellant stands upon the rule of law as stated in that case and other similar adjudications, and insists that the case at bar presents precisely the same legal propositions. If the facts in the case before us are not essentially different, then it must be admitted that Zabriskie v. Smith is an authority which supports the argument, and the judgment should be reversed. In that case the defendant’s false statements and misrepresentations were made directly to the merchants who were about to make a sale of goods to a customer who applied for a credit, and in consequence of the defendant’s false representations they were induced to make the sale and the purchaser being at that time insolvent, they suffered a loss. Smith, the defendant, did not share in any way in the goods purchased, nor derive any profit or advantage from the transaction. It was a case of fraud and deceit practiced upon the vendor of goods, who was induced thereby to part with his goods to another. In the case now before us, the facts are essentially and materially different, and brings it within the class of cases where the cause of action survives the death of the injured party as well as the wrong-doer, by the provisions of the Revised Statutes, as has been held in many cases.

¥e must assume that the jury found the facts which the bill of exceptions states the evidence tended to prove, and they support the verdict. It appears that while negotiations were jiending, Snow, the purchaser, referred Seeley to the defendant for information concerning his financial responsibility. This indicates that Snow and the defendant were acquaintances and that the latter knew, or assumed to know, as to his pecuniary responsibility, and the bill states that the defendant was to have one-fourth of the goods sold for recommending to the seller that Snow’s notes, indorsed by Clark, would be good; and that after the trade was concluded, the goods were delivered to the defendant at his store in Syracuse, and that he received a portion of the proceeds of the same. This is the effect of the statement in the bill of exceptions. This tends to establish that the defendant was an active participant in the fraud perpetrated upon Seeley, profited by the transaction and connected himself therewith before the sale was consummated. Seeley could have repudiated the sale and maintained an action in replevin against the defendant and recovered the goods which he received into his possession, having by means of his fraud gained possession of part of the goods in question and derived a profit therefrom, his act resulted in a direct injury to the property, rights and interests of Seeley, which gave him a right of action against the defendant, which would have survived to the personal representatives of Seeley, and was therefore assignable by him in his lifetime.

The distinction in principle between this case and Zabriskie v. Smith, arising out of the facts of the case, was observed and followed in Haight v. Hayt (19 N. Y., 464). There the vendor of lands was guilty of false representations as to an incumbrance, whereby the vendee suffered a loss, and it was held that the right of action survived to and against the personal representatives of the parties. There, as here, the party perpetrating the fraud gained a pecuniary advantage by means of his false and fraudulent representation.

In Dininny v. Fay (38 Barb., 18), the cause of action was against the defendant, a sheriff, for neglect of his duty in not serving a body execution delivered to bira for that purpose, and it was held that tbe cause of action arising out of tbe sheriff’s neglect of duty was assignable, for tbe reason that the omission to collect tbe execution was a wrong to tbe property, rights and interests of the plaintiff in tbe execution, and would survive to bis executor or administrator, and was therefore assignable. (See, also, Graves v. Spier, 58 Barb., 386; Byxbie v. Wood, 24 N. Y., 612; McKee v. Judd, 12 id., 622.)

We think it plain, beyond all argument, that tbe fraudulent acts •of tbe defendant worked a direct injury to the property and goods of tbe assignor, and the same was assignable within tbe provisions of tbe statute as interpreted by tbe cases we have referred to.

Tbe judgment should be affirmed.

Smith, P. J., and Bradley, J., concurred; Haight, J., not sitting.

Judgment affirmed.


author: BARKER, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. DUGALD C. VAN BUSKIRK, Appellant, v. SPENCER CLARK, as late Sheriff of the County of Yates, Respondent.

      Redemption by a mortgagee from a sale on execution — what is a sufficient statement of the amount due — Code of Oiml Procedure, sea. 1465.
    A mortgagee, upon applying to a sheriff to redeem premises sold under an execution issued upon a prior judgment, made an affidavit which stated, among other things, “and this deponent further says that, as near as he can estimate, the sum of $2,288.29, including interest, now remains unpaid on said mortgage at this the time of claiming said right to redeem.”

      Held, that the statement complied with the provision of section 1465 of the Code of Civil Procedure, requiring the affidavit to state “ truly the sum remaining unpaid on the mortgage at the time of claiming the right to redeem.”
    Appeal from a judgment, entered on a decision of tbe Tates County Circuit, upon tbe trial of tbe action by tbe court without a jury.
    Tbe action originated in an application for a writ of ma/ndamus to compel tbe defendant to execute a deed of certain premises iu Tates county, for which tbe relator held tbe defendant’s (sheriff’s) certificate of sale.

      The appellant procured an alternative writ of mandamus requiring the sheriff to execute to him a deed of certain premises sold on execution, or to show cause to the contrary. The sheriff appeared and made answer, stating, among other things, that he had executed a deed to one Benson Smith, who had redeemed the premises from the sale.
    One Erasmus Clark was the owner in fee of the premises upon which the judgment was a lien, and Benson Smith had a lien by mortgage subsequent thereto. The relator purchased the premises at the sale, and on the last day for redemption by creditors Smith redeemed under his mortgage. The sheriff thereupon executed to Smith a deed in the usual form. The trial court dismissed the proceeding, with costs, holding that the proceedings to redeem were in all respects regular, and that the sheriff properly executed and delivered the deed to Smith, the redeeming mortgagee.

      Wood c& Morris, for the appellant.

      E. F. Edboook, for the respondent.
   BARKER, J. :

The single question presented relates to the sufficiency of the affidavit in the statement therein made by the redeeming mortgagee as to the sum claimed by Mm to be due on the mortgage on the day of the redemption. The statute requires the redeeming creditor to present to the sheriff, with the other necessary papers, an affidavit “ stating truly the sum remaining unpaid on the mortgage at the time of claiming the right to redeem.” (Code of Civil Pro., §1465.) The affidavit presented by the mortgagee to the sheriff was verified on the day he sought to redeem, and after stating therein other material facts, concluded as follows: “ And this deponent further says that, as near as he can estimate, the sum of $2,288.29, including interest, now remains unpaid on said mortgage at this the time of claiming said right to redeem.”

The objection interposed by the relator as to the sufficiency of this affidavit is, that it is equivocal and doubtful in the statement relative to the sum due on the mortgage. It is true that the statement as to the suin unpaid is not expressed in the words of the statute; yet we think it is in substance in compliance with its requirements, as it does state a definite sum as unpaid on the day of the redemption, accompanied with an averment as to its truthfulness, in a form and manner that answers ail the purposes of the statute. The language of the statute prescribing the form of the affidavit as to the sum unpaid on the mortgage is, in substance, the same as the provisions contained in prior laws on th.e same subject, wherein the requirement is expressed as follows: “ Stating the true sum due, or to become due, on such mortgage at the time of claiming such right to purchase, over and above all payments.” (Laws of 1836, chap. 525, § 2.) In proceedings to redeem under this act it has-been frequently held by the courts that the redeeming creditor must, in form and substance, comply with the terms of the statute, but that a literal compliance was not exacted. (The People ex rel. Rice v. Ransom, 2 Hill, 51.)

The statute does not require the creditor to make a positive, absolute and unqualified statement as to the amount remaining unpaid. A rule as rigid and stern as that would, in many cases, defeat the right of redemption, for the reason that the redeeming creditor might not be able to make a statement as to the sum remaining unpaid, without some qualification. An agent or attorney of the mortgagee is empowered to make the affidavit required by the statute, and such persons, in many cases, when acting for the redeeming party, would have to make a qualified statement based upon such facts and information as they might possess.

The redeeming mortgagee states in his affidavit that there is unpaid on the mortgage, as near as he can estimate, the sum mentioned therein. This is equivalent to saying that' he has calculated and computed the sum unpaid. The word estimate, when properly and correctly used, in oral communications or written instruments, is selected to express the mind or judgment of the speaker or writer on the particular subject under consideration. It implies a computation or calculation, as to estimate the loss or gain of an enterprise— Webster. The sense in which this word is used, the particular idea intended to be expressed by its use, must be determined by the subject-matter under consideration, together with the context of the instrument. The question presented as to the sufficiency of the affidavit, does not admit of much argument or illustration in its support. It is very largely a matter ef interpretation, tbe sense and meaning to be gathered from a perusal of the entire instrument.

The relator, in support of his position, relies upon the reported cases, giving construction to previous laws on the same subject. We have exahfined all the cases cited and will refer to ■some of them. Smith v. Miller (25 N. Y., 619) is not in point. The question as to the form and sufficiency of the affidavit used in those proceedings was not up for consideration. That was a suit in equity. All the parties interested in the subject were before the court, and it was found as a matter of fact that the affidavit on which the plaintiff relied in support of his redemption was false, in fact, in the statement made relative to the amount due on the judgment. The form and sufficiency of the affidavit as it appeared on its face was not questioned.

In The People ex rel. Cook v. Becker (20 N. Y., 354) the mortgagee who sought to redeem stated in his affidavit that there was actually due on the mortgage over and above all payments the sum named “ as claimed by this deponent.” The court held that the affidavit was defective, as it amounted to nothing more than a claim that the sum mentioned was due. And that it was so indefinite in its ■statements that perjury could not be assigned thereon, if the same was, in fact, knowingly false.

In the affidavit now under consideration, we think the statement is of a more positive character and is equivalent to an averment, that the affiant had computed the amount unpaid, and that it was in fact the sum mentioned in the affidavit. It is more than a claim that the sum mentioned remains unpaid on the mortgage.

In Ex parte The Bank of Monroe (7 Hill, 178) the affidavit was made by a person purporting to be an agent for the redeeming creditor, and it was held that it did not appear by the papers submitted on redemption that he was, in fact, an agent of the creditor, and on this ground the proceedings to redeem were held defective.

We fail to find any adjudication establishing a rule which, on being applied to the matter in hand, would condemn the affidavit presented by Smith, as being defective in substance. The sheriff was therefore right in delivering to Smith the deed.

In the recent case of Pratt et al. v. Stevens (94 N. Y., 387), the court had under consideration a similar question in giving construetion to one of tbe provisions of chapter 466 of the Laws of 1877, relative to assignments for the benefit of creditors, and the remarks of the court there made are in a general way applicable to the case now under consideration, to which we refer in support of our conclusion that the judgment should be affirmed.

The statute required the debtor to verify the inventory by a statement under oath that “ the same is in all respects just and true,” and in that case the affiant added to the words of the statute the following: “To deponent’s best knowledge, information and belief.” The court held .the affidavit, as made, to be in substantial compliance with the statute, as the statute did not require the same to be in any particular form, nor that the verification should be absolute and unqualified.

The judgment should be affirmed, with costs.

Smith, P. J., Bradley and Haight, JJ., concurred.

Judgment affirmed, with costs.


text:
    LAUREN C. WOODRUFF, Respondent, v. HUGH J. JEWETT, as Receiver, etc., Appellant, and Others.

      Receiver of a corporation — a judgment should he entered against Mm, as receiver, and net personally — when it may he so entered after he has been discharged as receiver.

    In an action brought by the creditor of a corporation against a receiver thereof, in his official capacity, no personal judgment can be rendered against him; the judgment must be entered against him as receiver, and must be made payable out of funds held by him in that capacity.
    The fact that the receiver has been discharged during the pendency of the action brought by the creditor, and has transferred all the property and assets held by him to another corporation or person, pursuant to an order of the court, does not render it improper to thereafter enter a judgment in an action against him as receiver, when it is made payable out of funds held by him, and applicable to that purpose.
    Appeal by Hugh J. Jewett, as receiver, from the final judgment entered in this action on the 22d day of July, 1884.

      JE. C. Sprague, for the appellant.

      L. N. Bangs, íoj the respondent.
   BARKER, J. :

In May, 1875, the appellant was appointed receiver of all the property, both real and personal, of the Erie Railway Company. He immediately entered upon the discharge of his duties, and received into his hands, as income from the property of the said ■corporation, large sums of money. The plaintiff presented a claim to the receiver, demanding payment of the interest accruing upon ■certain bonds issued by the Erie and Genesee Valley Railroad Company, in pursuance of an agreement of the Erie Railway Company with the plaintiff, made prior to the appellant’s appointment. The Erie Railway Company and the receiver both denied the legality and equity of this claim, and resisted its payment. Thereupon the plaintiff made application to this court for an order directing the receiver to make such payment. The court declined to adjudicate the controversy upon motion and denied the application, but gave to the plaintiff permission to bring this action, the chief purpose of which is to establish such demand and secure its payment out of the' funds in the hands of- the receiver. Other relief was demanded in the complaint, but upon the trial the same was abandoned.

Upon the trial of the issues at the Special Term, the court held, as a conclusion of law upon the facts found, that the defendant therein, Hugh J. Jewett, as receiver, pay into the Metropolitan National Bank, in the city of New York, the interest due upon the mortgage bonds of the Erie and Genesee Valley Railroad Company maturing on the 8th day of July, 1875, and thereafter maturing during the period he operated said railroad, being until the 24th of April, 1878, from any funds which he had received or were in his hands applicable to the payment thereof; and upon this decision an interlocutory judgment was entered, the decretal part of which is as follows: “ It is decreed that the defen d ant, Hugh J. J ewett, as receiver of the Erie Railway Company, under the several orders appointing him such receiver, pay into the Metropolitan National Bank of the city of New York, the interest due and unpaid upon the mortgage bonds of the Erie and Genesee Valley Railroad Company, maturing on the 1st day of July, 1875, and thereafter maturing while he operated the Erie and Genesee Valley Railroad Company, being until the 24th day of April, 1878, with interest on the coupons attached to said bonds during the period last aforesaid from the time they respectively become due, until the time of the judgment in this action, from any funds which he received or which were in his hands as such receiver at the time of such sale of the Erie Railway Company, under the foreclosure aforesaid, applicable to the payment thereof, with the costs of this action.” A provision was made in this judgment for a reference, for the purpose of ascertaining the amount of interest due and unpaid upon the bonds and to take an account of the moneys received and disbursed by the said receiver during his receivership, or of any in his hands at the ■expiration of his office as such. receive2’, and report the testimony taken by him to this court with his opinion thereon, to the end that a final decree might be entered. This judgment was affirmed in the Court of Appeals and the judgment of that court made the judgment of this court on the 15th day of January, 1884. Thereupon a reference was ordered for the purpose of ascertaining the facts necessary to enter final judgment, and the referee having been attended by the plaintiff and Hugh J. Jewett, in his ■capacity as receiver, made his report, which was in all things confirmed, and final judgment entered on the 27th of July, 1884, and after reciting the provisions of the interlocutory judgment, and the subsequent proceedings had thereon, and the making such confirmation of the referee’s-report, it contained this direction: “That the plaintiff Lauren C. Woodruff have final judgment, that the defendant, Hugh J. Jewett, as receiver of the Erie Railway Company, forthwith pay into the Metropolitan National Rank of the city of New York the sum of $37,822.45, with interest on that sum from the 22d day of July, 1884, until the time such payment should be made as herein directed. And it is further adjudged, that the said Lauren C. Woodruff have judgment in this action for costs and disbursements therein as against the said Hugh J. Jewett as receiver of the Erie Railway Company, for the sum of $1,502.96 as allowed and taxed in this action, and that said receiver, Hugh J. Jewett, forthwith pay the sum last aforesaid to the attorney for the plaintiff with interest thereon from July 22, 1884, to the time of such payment,” Erom this judgment Hugh J. Jewett, as reeeivei-, alone appeals.

We conceive that two questions are presented for our consideration on this appeal, and no more. First. Is the final judgment x personal judgment against IIugh J. Jewett, and can payment of tire same be enforced out of his private estate ? The learned counsel for Mr. Jewett is apprehensive that it may bear such a construction,, and for that reason presents the question for our consideration, and if, on this appeal, we shall be of that opinion, then the judgment-should be modified, limiting its effect and operation as establishing a lien upon the assets which belong to the Erie Railway Company, and as containing a direction to the appellant, in his capacity as receiver, to pay the same.

In our consideration the judgment is in no sense a personal judgment against Mr. Jewett. He is made a party solely and distinctly, as the receiver of the Erie Railway Company, and he appeared and answered as such, and from first to last, all the proceedings have been conducted, as against him, wholly in his representative capacity and not otherwise. In an action brought against a receiver in his official capacity, a judgment can only be obtained against him as receiver, and must be made payable out of the funds in his hands as receiver, and his liability is in no sense a personal one. It is a principal of law of universal application, and is at the foundation of every system of enlightened jurisprudence, that no person shall be affected by the judgment of any court, unless he has had his day in court and been granted an opportunity to be heard in his own behalf. The court had no jurisdiction over Mr. Jewett, individually, and no power to render any judgment against him personally. (Fisher v. Hubbell, 1 T. & C., S. C. R., 97; High on Receivers, §§ 255, 395.)

It is now the settled doctrine that the receiver of an insolvent cprporation represents the corporation, the shareholders and its creditors of every class. The assets of the corporation are custodia legis, the receiver’s possession being the possession of the court, and he in every authorized act represents the court, and can make no rightful disposition of any of the funds in his hands without the order of the court. (Attorney General v. Guardian Mut. Life Insurance Company, 77 N. Y., 272; Davis v. Gray, 16 Wall. [U. S.], 203.)

If it was intended by the interlocutory or final judgment to enter the same as a personal judgment against Mr. Jewett and to bind his estate, the court was without authority to render the same, and the same should be modified so as to limit its effect as against the appellant as receiver. We, however, are of the opinion that it is not susceptible of a construction making it a personal judgment as to any of its provisions, but, as our decision in this respect is not final and may be reviewed, we deem it a proper precaution to change the language of the decree in some of its parts, and particularly in respect to the payment of the costs.

Second. The appellant further claims that, as it appears by the record of the judgment from which he appeals that before the entry of the final judgment he was fully discharged as receiver, and all the funds which came to his hands had been paid out by him under and in pursuance to the order of this court, the judgment should be reversed as to the re'ceiver.

If the conclusions which we have reached upon the first proposition are correct, we are unable to perceive how the appellant is aggrieved - by the judgment or can be legitimately interested in securing its reversal, as no question can now be raised on the merits. We may assume, in considering the question whether judgment should be reversed or not, that the appellant’s position is true, that he was duly discharged by an order of this court after disbursing, in a proper manner, all the funds which came to his hands. The action is in the nature of proceedings in rem. to reach moneys in the hands of the receiver, subject to the order of the court, and the decree contained no other provisions. The plaintiff’s right to share in the distribution of the fund survives the discharge of the receiver. The plaintiff should not be deprived of the benefit of this prolonged and expensive litigation, because the receiver has been discharged since the entry of the interlocutory judgment. The plaintiff’s rights are not in the least changed or abridged because of his removal. At the most the entry of thg interlocutory judgment in form against Mr. Jewett, as receiver, is a mere irregularity. It can be enforced as it was intended to be by payment out of the funds, subject to the order of the court, applicable to the purpose. When the receiver was removed this action was s%ib judice, and as the proceedings are in no sense in personam, the court possessed the inherent power to order the judgment to be entered in form against Mr. Jewett, as receiver, so that the plaintiff would not lose the benefit of the decree to which he was entitled at the time the receiver was discharged. The final judgment is in strict conformity to the directions of the interlocutory judgment, and it can work no possible injury to any one by sustaining the practice adopted.

In the common-law courts, before any statute was enacted upon the subject, it was the practice to allow judgments to be entered against the defendant, rendered after his death, if the same occurred after the commencement of the term at which the trial took place. (Jacobs v. Miniconi, 7 Term Rep., 31.) The same practice was permitted in this State. (Burrell’s Practice [vol. 1], p. 281.) Now, by section 763 of the Code, if either party to the action dies after verdict, report or decision, or interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the name of the original parties, unless the verdict or interlocutory judgment is set aside.

The case of Harrison v. Simons (3 Edw. Ch., 394) is somewhat in point. There the death took place before the enrollment of the decr’ee. The court held that the death did not prevent the enrollment, and that the execution of the decree might take place, and denied the plaintiff’s application to revive as unnecessary. (See, also, Hays v. Thomae, 56 N. Y., 521.)

The practice pursued in this case may be sanctioned, as there is no statute prohibiting it, and no injustice can be done to any interested party by allowing the judgment to stand. In Miller v. Loeb (64 Barb., 454), permission was given by the court to sue the receiver after his discharge, upon the ground that the claimant had no notice of his discharge; but the court declined, in granting the order, to pass upon the question of the regularity of the discharge. It is not new practice to order the discharge of a receiver before settlement of all claims made upon the fund in his hands, and directing the undisbursed .assets to be handed over to the corporation which would be entitled thereto, after paying all just claims thereon, exacting ample security for the payment of all demands thereafter established. (Milwaukee and Minn, R. R. Co. v. Soutter, 2 Wall. [U. S.], 510.)

It would seem that the plaintiff has been fully protected in the payment of his claim, notwithstanding the discharge of the receiver, for in the judgment of foreclosure under which the property of the Erie railroad was sold and conveyed, a provision was inserted •declaring tbat the purchaser at such sale should be required to take title to the mortgaged property, subject to all lawful contracts and indebtedness of the receiver, all of which were declared to be prior liens upon the mortgaged property, and which the purchasers were -required to assume; and in the order of the court, made after the ¡sale, directing the receiver to transfer, deliver and surrender to the new corporation, the New York, Lake Erie and Western Railroad Company, all the property and franchises possessed by the receiver, a provision to this effect is inserted, subject, however, to the reservations specified in the decree of foreclosure, and that upon such transfer the receiver be discharged of all liability for the property and franchises so delivered and transferred to the new company. (Farmers' Loan, and Trust Co. v. Central R. Co. of Iowa, 2 McCrary, 181.)

But we do not intend, at this time, as the questions are not properly before us, to express any opinion upon the many legal propositions which may arise in suits or proceedings which the plaintiff may hereafter institute for the purpose of enforcing the satisfaction of his judgment. In particular we reserve all consideration of the question whether Mr. J ewett is in contempt for having paid over to the new corporation on the 5th day of December, 1879, the sum of $43,323.37, which was done in pursuance of an order of this •court, entered in the action appointing him receiver; nor whether the court has the power to reclaim, for the purpose of paying the plaintiff’s demand, in full or in part, any of the money distributed and paid over on previous orders.

The judgment should be so modified that it will, in terms, be in strict compliance with the provisions of the interlocutory judgment, and distinctly contain the provision, “’that the receiver pay the plaintiffs’ judgment out of any funds which are, or may hereafter come into his hands, or under the direction of the court, applicable to that purpose.”

Judgment as modified affirmed with costs.

Bradley, J., concurred; Smith, P. J., not voting; Haight, J., not sitting.

Judgment modified, as indicated in the opinion, and as modified affirmed, with costs to the respondent;

judgment to be settled by Barker, J.


author: Smith, P. J.;

text:
    THOMAS KELLEY, Respondent, v. JAMES J. McMAHON, Appellant.

      Duty of the court to determine an equitable action, where a terwpora/ry injunction has teen granted and an issue joined therein, although, the matter in dispute has been decided by the lapse of time— when the court should determine the case simply for the purpose of settling the rights of the parties to costs.

    Appeal from a judgment, entered upon tbe report of a referee.
    Tbe action was brought to reform a lease executed by the defendant to tbe plaintiff, on the ground of mistake. Tbe lease was dated June 8, 1881, and was íór a term of three years, rent payable quarterly, in advance, unless the lessor should sell the premises, and in case he did, he was to give the tenant one month’s notice to leave. The alleged mistake was that the lease omitted to state (as the parties had agreed) that the lessee should, in any event, have the premises for one year; and that the provision that he should leave on a month’s notice, in case of sale, was to operate only after the expiration of the first year. The complaint alleged that the' defendant had commenced summary proceedings to remove the plaintiff on the ground that the lease had expired by reason of a sale of the premises and a month’s notice to quit, although the first year had not elapsed; and a part of the relief demanded was. that the defendant be enjoined from dispossessing the plaintiff for expiration of the term within the year. The defendant answered, and the issues were referred to a referee to hear and decide. The cause came on for trial before the referee on August 2, 1882; and it then appearing that the first year of the term created by the lease had expired, and that the plaintiff had surrendered the possession of the premises to the defendant’s grantee. The referee decided that he would not hear the case upon its merits merely for the purpose of deciding upon the question' of costs and he directed that the complaint be dismissed, but without prejudice to tbe right of the defendant to take such action as he might •deem advisable to recover such damages as he might have sustained by reason of the injunction (which, as appears by a recital in the decision, had been issued on motion of the plaintiff, and had not been vacated), and to show to the court that plaintiff was not •entitled to such injunction; but without deciding on the question whether the plaintiff was entitled to the injunction, or whether the defendant is entitled to any damage by reason thereof. Judgment was entered accordingly. The defendant’s counsel duly excepted to said decision, and particularly to the refusal of the referee to decide the question of the right to the injunction.
    The court at General Term said : “ In declining to decide whether the plaintiff was entitled to the injunction and to hear and decide the case upon its merits, so far as was necessary to a determination •of that question, we think the learned referee erred. The case is one in which the plaintiff was required, as a condition of obtaining the injunction, to execute an undertaking to the effect that he would pay to the defendant' such damages, not exceeding a sum specified in the undertaking, as he may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto. {Code, § 620.) Such decision, properly, should be made on a trial of the cause, when issues have been joined.
    “ After the referee made his decision, and judgment had been entered thereon, the defendant moved at Special Term for an order of reference to ascertain the damages which he alleged he had sustained by reason of the issuing of the injunction. The motion was denied on the ground that it appeared by the judgment that the question whether the plaintiff was entitled to the injunction had not been decided. On appeal to this court, the order was affirmed. Mr. Justice HardiN, who wrote the opinion, in which the other members of the court concurred, remarked that ‘ this was an equity action, and the court had power to dismiss the complaint in part and to retain it in part, for the purpose of considering, at a later stage, parts of the case not then passed upon. It could have expressly reserved the questions relating to the injunction. We incline to the opinion that the court having, by its referee, omitted to pass upon that branch of the case relating to the rights to an injunction, the defendant might have applied for an order to compel the referee to pass upon that question, or might bave excejited to his refusal to pass upon the question, and upon a ease presenting the proper exceptions had a review of the refusal of the referee, and a reversal of his decision. It did not appear on that appeal that the defendant had excepted to the referee’s decision.
    “ The case shows that the defendant offered the proof as bearing-also on the question of costs. The referee declined to hear it for that purpose, and the defendant excepted. In that ruling we think there was error. Although the term of the lease had expired, even as it was claimed to be by the plaintiff, yet it was proper that the. question of costs should be decided according to the equities of the case existing when the suit was commenced.
    “ For these reasons we think the judgment should be reversed and a new trial ordered before another referee, so far as the questions of costs and the right to the injunction are concerned, with costs of the appeal to abide the event.”

      E. D. JEorthrujp, for the appellant.

      Vedd&r c& Rider, for the respondent.
   Opinion by

Smith, P. J.;

all concurred.

So ordered.


author: Haight, J.;

text:
    LORING McMILLAN, Plaintiff, v. CHARLES F. BELLOWS and Others, Defendants.

      Repeal of an amendatory act — ■when it does not remve the original act — sea. 4, art. 1, til. 2, chap. 13, prn't 1 of the Revised Statutes, was not revived by the repeal of chap. 287 of 1871 by chap. 335 of 1872.
    Motion for a new trial on the part of the defendants, on exceptions ordered to be heard at the General Term in the first instance, judgment in the meantime having been suspended.
    This action was brought to recover damages of the defendants, who were assessors in the town of Seneca Falls, in Seneca county, for improperly assessing the plaintiff’s land in that town, the plaintiff claiming that the lands assessed in the town of Seneca Falls were a part of his farm located in the town of Tyre, on which he resided; that they were separated by a road known as the State road, which was also the town line.

      The court at General Term, after referring to section 4 article 1, title 2, chapter 13, part 1 Revised Statutes, and its amendment bj chapter 287 of 1871, and the repeal of the latter act by chapter 355 .of 1872, said: “ The question thus presented is whether or not the repeal of chapter 287 of the Laws of 1871 operates to restore section 4 of the Revised Statutes.
    “ This question was considered in the case of the People ex rel. Ccmajoharie National Panic v. The Board of Supervisors of Montgomery County (67 N. Y.j 109). It was in that case held that the amendment of a statute by declaring that the same shall read as prescribed by the amendatory act, is not a repeal of the original statute, but from the time of the passage of the amendatory act the whole force of the enactment as to subsequent transactions rests upon it; the former statute is merged in it, has no validity distinct from it, and can only be referred to as to past transactions; that a repeal of the amendatory act does not revive the original act, but both fall together.
    “ This question has recently been under consideration in this court in the case of Harris v. The Board of Supervisors of Niagara County (33 Hun, 279), in which case it was held that section 4 of the Revised Statutes, above quoted, was repealed. (See opinion on page 282.)
    “We discover no reason why we should depart from the conclusion reached by us in that case.”

      Murray <& Harmon, for the plaintiff.

      J. N. Raymond, for the defendants.
   Opinion by

Haight, J.;

Smith, P. J., BabKeb and Bbadlet, JJ., concurred.

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


author: BoabdmaN, J.: Eollett, J.

text:
    HARRIET BURNHAM, Respondent, v. OLIVER T. COMFORT, Appellant.

      Will — devise of land — when not revolted or satisfied by. the payment by the testator of money to the devisee, although it be paid with intent so to do — ademption.
    By a will, made 1863, Oliver Comfort gave a life estate in certain land to his brother Robert for life, and the remainder therein to the plaintiff, his daughter; all the rest and residue of his estate he gave to the defendant, a son. Before the making of the will he had given to his children, other than those mentioned, what he and they treated as their share in his estate then possessed by him or thereafter to be acquired, and had taken receipts therefor from them expressing such intent and purpose. In 1864 he made a similar arrangement with the plaintiff, giving her $600 and taking an unsealed receipt, signed by her in the, presence of a witness, by which she acknowledged the receipt of the said money as her part of her father’s estate up to that time, and all such other property as he might accumulate up to the time of his decease. The testator died in 1879 without having altered his will.
    Upon the trial of this action, brought by the plaintiff to recover the possession of the land from the defendant, who had entered into possession thereof upon the death of the testator’s brother Robert in 1881, the court found that the $600 was paid and received with the intent that it should take the place and be in lieu of the devise of the said remainder.

      Meld, that the devise was not revoked nor satisfied by the payment of the said money under the said agreement and that the plaintiff was entitled to recover. (Follett, J., dissenting.)
    The doctrine of ademption applies only to legacies.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      In 1863 Oliver Comfort, the father of tbe parties to this action, made bis will, by wbicb he gave a life estate in the houses and lots in controversy to his brother Robert Comfort, and the remainder thereof to the plaintiff. He gave his home, farm and all the rest and residue of his estate, to the defendant and made him one of his executors. Before making such will the testator had paid to his children, other than the parties hereto, what he and they treated as their share in his estate, then possessed or thereafter to be acquired, .and they had severally given receipts therefor expressing such purpose and intent. These- other children received nothing under the will, except a share of the household furniture after their mother’s death. ♦
    In 1864 the testator made a similar arrangement with the plaintiff, giving her $500 and taking from her a receipt in the words and figures following:
    “Received of Oliver Comfort five hundred dollars, which money I receive as my part of my father’s estate up to this time, and all «uch other property as he may accumulate up to his decease.
    “ In witness whereof I have hereunto subscribed my name.
    “Dated at Southpoet, May 14, 1864.
    “500.00. HARRIET BURNHAM.
    “ In presence of Lawrence Lain.”
    The testator paid the said money, and the plaintiff received the -same with the intent (as the learned justice found) that it should take the place and be in lieu of the devise of the remainder of the premises in controversy as contained in said will. Nevertheless the will remained unaltered during the remainder of • the testator’s life. He died in 1879. Robert Comfort, the life tenant, was in the possession of the property from 1879 until his death in 1881, when the defendant entered into the possession thereof, and refused to surrender the same on demand made by the plaintiff. The ...plaintiff, on request, refused to execute a quit-claim deed of the •premises to the defendant. This action is one of ejectment. The plaintiff claims title under the provision of the will so made in 1863, ■and admitted to probate after the testator’s death. The defendant -claims title as residuary devisee under said will in pursuance of the arrangement made between the testator and plaintiff in 1864. The court held and decided that the will was valid and that the devise to plaintiff was not revoked by anything done by the testator, nor was it adempted by the payment to the plaintiff of the $500 as-above stated. Judgment was ordered for the plaintiff, from which the defendant appealed to this court.

      Smith <& Robertson, for the appellant.

      Hill & Stanchfield, for the respondent.

       See post, page 246.

   BoabdmaN, J.:

If the testator had given the plaintiff a legacy of $500 instead of the devise of land stated in the will, the payment made by him May 14, 1864, to plaintiff, would have adeemed or satisfied the legacy. Ve may, therefore, pass by or disregard all authorities-founded upon satisfaction of legacies.

It cannot be treated as a case of advancement because that is allowed only in case of intestacy. (1 R. S. [Edm. ed., 105], p. *754, § 23 4 Kent’s Com., pp. *418, 419 ; Thompson v. Carmichael, 3 Sandf. Ch., 120.) Here the property was wholly disposed of by will, and no right reserved therein, as in Langdon v. Astor's Exrs. (16 N. Y., 1), to qualify or modify any of its provisions. The transaction between the plaintiff and her father has no element of estoppel in favor of the defendant. The latter was in no sense a party to the-act done. He parted with nothing. His property was not affected thereby, and he did no act relying upon the acts or declarations of the plaintiff or her father. (Winegar v. Fowler, 82 N. Y., 315.) If the receipt of plaintiff may be treated as a contract with the testator, it dogs not enure to the benefit of the defendant. He was not a party to it and acquired no rights under it. All it provided for was this; that plaintiff could not claim as a matter of right any further recognition, but if her father saw fit to allow her to receive greater favors under his will, the contract did not forbid it.

The question then comes down to this, was the devise to plaintiff, satisfied by the payment of the $500, in May, 1864? There is no logical reason why a money payment ought not to satisfy a devise as well as a legacy where such was the purpose and intent of the-parties as here. But so far as authorities can be found they are hostile to such a doctrine. The case of Davys v. Boucher (3 Young & Collier [Exch.], 397, etc.) states that the principle of ademption by subsequent portion has not been applied to devises of real estate. That authority has been often recognized as correct. Bouvier, in his Law Dictionary, says an advancement will not be considered an ademption where the devise is of real estate.” In 2 Redfield on Wills, 441, Danys v. Boucher is cited with approval on this subject. So, also, in 2 Williams on Executors (5th Am. ed., 1202, or 7th London ed., 1335). The same principle is also sustained in Weston v. Johnson (48 Ind., 1), again citing Drnys v. Bouoher. Other cases are cited by respondent’s counsel to the same effect, but as they are not accessible to me, I cannot verify them. The authorities are abundant to show that satisfaction applies only to legacies. (Willard on Exrs. 351; Bouv. Law Dic., Ademption; Landon v. Astor's Exrs. 16 N. Y., 1; S. C., 3 Duer, 541; 1 Roper on Legacies, 365.)

In the case under consideration the testator retained the absolute legal right to give the plaintiff the real estate in controversy notwithstanding the arrangement of May 14, 1864. If his will had been made after that date, no doubt could exist óf the validity of the devise. But the will made in 1863 continued to exist in the same form as it now is until the death of the testator in 1879, a period of fifteen years. We must presume the testator knew the consequence of such act and intended it. The will speaks as of the date of the testator’s death and not of the date of its execution. The fact, that the provision for the plaintiff remained unrevoked for so many years, must be some and perhaps strong evidence of the testator’s intention that plaintiff should have the land as originally given to her by the will.

Wills of real estate and wills of personal estate are now executed with the same formalities. Formerly it was otherwise, and far ■greater importance was attached to a will of real estate. The provisions of a will of persona: property might be anticipated, but not so in case of wills of real estate. Besides, upon proof of a will of real estate the title passes by virtue of the devise in the will contained. It is a written title of record, when the will has been probated. If such title could be attacked by parol proof of acts and declarations of the testator and others in hostility to the terms of the will, title to lands might be put in great jeopardy. Yery likely such considerations may have contributed to establish the legal principle applicable to this case, that a devise of land cannot be satisfied by the payment of money eyen where both parties to the transaction so intend. This of course does not touch contracts made between a parent and child for the benefit of and to be enforced by other children. Such contracts stand on quite a different basis.

The judgment must be affirmed, with costs.

HaRdiN, P. J., concurred.

Eollett, J.

(dissenting):

The doctrine of advancements relates solely to cases of total or partial intestacy. (Thompson v. Carmichael, 3 Sandf. Ch., 120; Hays v. Hibbard, 3 Redf., 28; Willard on Exrs., 401; Dayton’s Sur. [3d ed.], 563; Redf. Sur. [2d ed.], 569; 2 Will. Exrs. [6th Am. ed.], 1608.) Advancements are equalized solely by virtue of statutes, and the decisions relating to this subject are inapplicable to this case.

In many of the text-books, and in many of the reported cases, the words “ ademption ” and “ satisfaction ” are inaccurately used as synonyms; but they are not, each being descriptive of a distinct state of facts. When a testator devises or bequeaths specific property which he subsequently disposes of, or if the thing devised or bequeathed is not in existence at liis death, the devise or legacy is adeemed or cut off. But when a legatee, subsequent to the execution of the will, receives from the testator property in lieu of the devise or legacy, the devise or legacy is satisfied. (2 Will. Exrs. [6th Am. ed.], 1428; 2 Redf. on Wills, 431; Whar. Law Dic.; Webster’s Dic.; Pom. Eq. Juris., § 524; Beck v. McGillis, 9 Barb., 35, 56 ; Ford v. Ford, 23 N. H., 212.) Other authorities, as well as some of those cited, give other significations to these words, but in this case they will he used in the sense above indicated. When a testator divides his estate by will between his children, or between those to whom he stands in loco parentis, the subsequent receipt by one of the children of an amount greater than or equal to his legacy will be presumed to have been received in satisfaction of the legacy. If the amount received is less than the legacy, it will be presumed to be a satisfaction pro tanto / but if the difference is slight, it may be presumed to be a complete satisfaction. These presumptions are all rebuttible. Many of the cases relating to this subject turn exclusively upon what the court will presume to have been the testator’s intention in the absence of direct proof of his intention.. Such cases are not germane to the question involved in this contention (?om. Eq. Juris., §§ 528, 572) and need not be specially considered, for in this cas^it is positively proved, and affirmatively found by the court, that the sum was paid’ by the testator and received by the devisee upon the mutual agreement that it should be in satisfaction of the devise.

The sole question in this case is, was the testator’s specific devise satisfied by the subsequent receipt of $500 upon the mutual agreement of the testator and devisee that the sum was paid and received in satisfaction of the devise, which agreement is evidenced by an unsealed written instrument executed by the devisee in the presence of a subscribing witness.

In Davys v. Boucher (13 Y. & C., 397; S. C., 8 Jurist, 674) it was said: “ But, as far as my researches have extended, I do not find- any instance of this principle (satisfaction) having been extended to devises of real estate, and I think so to extend it would be to repeal that provision of the Statute of Frauds which applies to the revocation of wills of real estate.”

The sixth section of the English Statute of Frauds (29 Car., 2, chap. 3) provides: “Section 6. And moreover no devise in writing of lands, tenements or hereditaments, nor any clause thereof, shall at any time after the said four and twentieth day of June (June 24, 1677) be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, canceling, tearing or obliterating the same by the testator himself, or in his presence and' by his directions and consent; (2), but all devises and bequests of lands and tenements shall remain and continue in force until the same be burnt, canceled, torn or obliterated by the testator, or by his directions, in manner aforesaid, or unless the same be altered by some-other will or codicil in writing, or other writing of the devisor, signed in the presence of three or four witnesses declaring the same; any former law or usage to the contrary nothwithstanding.”

This section, so far as it relates to the revocation or alteration of devises, was repealed by section 2, chapter 26, 1 Victoria, and the revocation and alteration of wills of realty and of personalty were placed on tbe same footing by the twentieth section.

The facts ont of which Davys v. Boucher arose occurred prior to •chapter 12.6, 1 Victoria, though it was decided afterwards. The •case was decided by a single judge at an equity term and was not reviewed. All of the subsequent cases, and the remarks of text writers approving of the doctrine that a devise cannot be satisfied by a subsequent advance of money, rest upon the authority of this case. Davys v. Boucher has been completely overthrown in England, in so far as it declares that a subsequent advancement will not operate as a satisfaction in full or in part of a devise or bequest of a residue. (Meinertzagen v. Walters, L. R., 7 Ch.. App. Cases, 670; Pom. Eq. Juris., § 558; 2 Will. Exrs. [6th Am. ed.], 1442.)

In Cark v. Jetton (5 Sneed, 229) the testator, after a devise and bequest to his wife, divided the residue of his estate equally between his children. Subsequent to the execution of his will he executed deeds of gift to several of his children. After the testator’s death the children, who had not received deeds of gift, sought to have the deeds of gift declared to be satisfactions of the devises, which was refused upon the ground, now denied in England (Pom. Eq. J uris., § 558; 2 Will. Exrs. [6th Am. ed.], 1442), that a devise of a residue, or of a part of a residue, to a child, is not satisfied by a subsequent gift to a devisee, and it is said: This doctrine of ademption does not apply to real estate, nor to legacies and gifts to others than children, or those who stand in that relation, in cases of general legacies. This distinction rests upon artificial reasons, the justice and propriety of which are not very clear, nor the reasons on which it is founded approved.” (Page 236.) There was no evidence that the deeds of gift were intended by the testator as satisfactions of the devises, the case turning wholly on what the court should presume.

In Thomas v. Capps (5 Bush [Ky.], 273) the testator devised all of the land which he then owned to his grand-children, to be equally divided between them. Subsequently, he acquired and conveyed other lands to one of his grand-children. It was held that the conveyance did not satisfy the devise, on the ground that the facts and circumstances disclosed by the evidence, did not warrant the conclusion that the conveyance was intended as a satisfaction of the devise. The court, however, distinctly recognized the applicability •of tbe doctrine, that a devise of real estate may be subsequently satisfied. “ The principle, therefore, that where a testator devises his real estate among his children in undivided shares, and afterwards •conveys part of it to one of them, the conveyance is presumed to have been intended as a satisfaction, and ademption of the devise, does not apply to this case.” (Page 216.)

In Weston v. Johnson (48 Ind., 1) one-fonrth of section 22 was devised to Francis Weston, ana one-fourth of section 23 to Cary J. Munger, grand-children of the testator.' Subsequently, the testator conveyed one-fourth of section 23 to Weston, who upon the testator’s death- claimed both parcels ; one under the will, and the other •under the deed. The testator’s heirs-at-law sought to recover the part of section 22 devised to Weston, on the ground that the conveyance of part of section 23 was a satisfaction of the devise. The judgment in this case is placed on three grounds : (1.) The devise being to a grand-child, to whom the testator did not stand in loco parentis, the presumption against double portions did not arise, as in the case of children. (Pages 5 and 6.) (2.) There was no evidence tending to show that testator intended the land conveyed, should be in lieu Of the land devised (page 3), and the fact that Weston so understood it was unimportant. (Page 5.) (3.) “We are not aware that the doctrine of the ademption of legacies by subsequent advancement, has ever been applied to specific legacies, and if it is not applicable to specific legacies, it certainly cannot be to specific devises.” (Page 6.) Davys v. Boucher (supra) and Clark v. Jetton (supra) are cited in support of the last proposition. The proposition last quoted is obscure, because the distinction between -presumption of intent and proof of intent, is not observed, and because “ademption” is used instead of “ satisfaction.” The term “ ademption ” has long and universally been used as descriptive of the fact that a bequest of a specific legacy, or a devise of a particular piece of land, has become inoperative because the particular thing bequeathed or devised, was not owned by the testator at his death (2 Will. Exrs. [6th Am. ed.], 1428; Redf. Wills, 430).

If a portrait is bequeathed, or a definite piece of land is devised, a subsequent advance of other property or of money, is not presumed to be a satisfaction of the specific legacy, or of the specific devise. Taken in this sense the proposition is correct; but this case is not an authority for the proposition, that a specific legacy or a specific devise cannot be satisfied by a subsequent advance of other property or of money, upon the mutual agreement of the testator and legatee, or devisee, that the advance is made and received in satisfaction.

In Allen v. Allen (13 S. Car., 512), the testator devised and bequeathed all of his estate to fourteen persons (his widow, children and grandchildren). Some received devises and others legacies. Two of the daughters, Mrs. McCalla and Mrs. Watson, were devised farms. Subsequently, they gave the testator receipts acknowledging'that they had received their shares in full for their interests in the farms willed to them. It was held that the legacies were satisfied by the subsequent advances of money, but that the devises were not. The court said (p. 527): It would seem that, upon the same principles, devises of real estate ought likewise to be adeemed (if such a term can, with any propriety, be applied to devises) by subsequent payments to the devisees with the intention of producing that result; but it is conceded that the doctrine of ademption has never been applied to devises of real estate, and, in the absence of any authority, we do not feel justified in disregarding the well established line which has for ages been drawn between real and personal estate, even though we may be thereby compelled to thwart the obvious intention of the testator and disturb that distribution of his property which he thought was proper and just to his descendants. For while the intention of the testator is the cardinal rule of construction of a will, yet such intention cannot be given effect where it is in conflict with the rules of law. A devise of real estate cannot, like a pecuniary legacy, be affected by any subsequent transactions between the testator and the devisee, but must stand until it is revoked or altered in the manner prescribed by law.”

This case supports the plaintiff’s position, but it is contrary to the judgment of the court deciding it, and it is rested wholly upon the rule of stare deeisis. The cases cited do not support the proposition quoted, and the judgment, so far as it rests on that proposition, is not sustained by principle or authority.

In Swoope’s Appeal (27 Penn. St., 58), the legacy was held not satisfied, on the ground that the legatee acquired no title to the land which it is alleged the legatee received in satisfaction. Again, this was not a devise, but a legacy, and tbe case is not in point.

In Dugan v. Hollins (4 Md. Ch. Dec., 139), it was beld that the subsequent gift of a house to one of several sons, will not be presumed to be a satisfaction of a pecuniary legacy, upon the ground: that the testamentary provision and the subsequent advancement were not ejusdem generis. Such is the well established rule.

This case is in harmony with the authorities cited by the learned counsel for the respondent in support of the rule that land will-not be presumed to be intended as a satisfaction for money, nor money for land (2 Leading Cases in Eq. [Am. ed., of 1877], 764; Bellasis v. Uthwatt, 1 Atk., 428; Grave v. Salisbury, 1 Bro. C. C., 425). The rule declared in these cases is not related to the rule applicable to a subsequent advancement, unlike the testamentary provision, received upon the mutual agreement of the testator and legatee that it is in satisfaction. The distinction between what the court will presume, and what it will hold in a case in which the testator’s intention is positively proved, must be constantly borne in mind. "When there is a mutual written agreement, the court will not indulge in presumptions, or receive extrinsic oral evidence of the testator’s intentions, but will determine the case by the agreement. (Pom. Eq. Juris., § 572.)

Under the statutes of this State (2 E. S., 64, § 42) a will devising realty may be altered or revoked in the same way that a will bequeathing personalty may be altered or revoked. Since the passage of this statute, and since 1 Victoria (chap. 26), it has been so generally held that it may be regarded as settled in this State and in England, that parol evidence of the satisfaction of a legacy may be given without violating those statutes, because it is not proving a revocation or alteration of the will, nor is it in contradiction of the testator’s declared intern ion, but is evidence of a subsequent transaction, showing that the testator has partly carried his will into effect in his lifetime. (Langdon v. Astor's Exrs., 16 N. Y., 9, 39, 49; Kirk v. Eddowes, 3 Hare, 508; 2 Whar. Ev., § 1007; 2 Taylor’s Ev. [6th ed.], 998, 1048; 1 Greenl. Ev., § 296; Abb. Tr. Ev., 148; Gresley’s Ev., 297; 2 Will. Exrs. [6th Am. ed.], 1443; 2 Redf. Wills, 442.)

The Superior Court held, in Langdon v. Astor's Executors (3 Duer, 477), that admitting parol evidence violated the section of the Revised Statutes above cited, citing Davys v. Boucher. The judgment was reversed in the Court of Appeals, where it was said (16 N. Y., 49): “ 1 think that a satisfaction of a bequest, by an advancement by the testator, is neither a revocation of the bequest, or an alteration of the will by which the bequest is made, in the sense with which those terms are used in the statute.”

Wills of personalty and of real estate standing on the same footing, no reason is apparent why a devise may not be satisfied as well as a legacy, or why the satisfaction may not be established by the same kind of evidence. Denio, C. J., in discussing the doctrine of satisfaction in Langdon’s Executors (16 N. Y., 35) uses language which is peculiarly pertinent to this case : “ The defendants in this case rely upon evidence of the actual intention of the testator, and such evidence being of the most authentic character and entirely satisfactory, it is unnecessary to consider whether the plaintiff’s case is within the doctrine of presumed satisfaction. It is not necessary either to examine the ground upon which that doctrine, the policy of which has been sometimes questioned, stands. It has never been denied that an intention of the. testator, that a gift inter vimos should satisfy a legacy, when once established, must prevail; though it has been doubted upon plausible grounds whether the reasoning 'by which the doctrine of presumed satisfaction arising out of the relation of parent and child has been supported, was not too artificial and refined. (Ex parte Pye, 18 Ves., 151; Story’s Eq. Jur., § 1118.) But I have not met with any case, English or American, in which the existence of the doctrine has been denied.”

Not being trammeled by any reported case in, or statute of this State, we ought not to import into our jurisprudence a rule, conceded to be wholly artificial, resting upon no principle and without any foundation except a repealed foreign statute, which, if adopted, would serve only to thwart the intention of testators, and set up one rule for devises and another for legacies.

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

Judgment affirmed, with costs.