author: Dykman, J.

text:
    Peter F. Murphy, Resp’t, v. The City of Yonkers, App’l.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Negligence—Municipal corporations—Defects in street.
    Plaintiff was riding with others in a coach returning from a funeral through one of defendant’s streets which was in had condition. In endeavoring to cross the street to avoid a wagon the driver was thrown from his seat and the horses ran until the coach upset and injured plaintiff. Held, that the plaintiff was entitled to recover.

      Appeal from judgment in favor of plaintiff for $275, entered on verdict.
    Plaintiff was returning from a funeral at which he, with three others, had acted as pall bearers. ' He sat in a closed coach with the driver on top. The driver came by the way of Nepperhan avenue to enable one of the other persons to get out at his own house. After he had alighted, the driver proceeded down the avenue, and perceiving a wagon and a ditch in front of the coach, endeavored to cross the street, which was in a bad condition. In doing so one of the horses slipped, turning the coach in the trench and throwing the driver off. The horses then took fright and ran about three-quarters of a mile, when the coach upset and plaintiff was dragged some distance and permanently injured.

      Joseph F. Daly, for app’lt; John H. Ferguson, for resp’t.
   Dykman, J.

This is an appeal from a judgment of the city court of Yonkers in favor of the plaintiff against the defendant.

The action was brought against the city for the recovery of damages resulting to the plaintiff from a fall from a carriage in •one of the public streets within the limits of the corporation.

The plaintiff was riding in a coach on his return from a funeral, when the driver was thrown from his seat by a sudden lurch of the coach and the horses became frightened and ran some distance until the coach was upset. The plaintiff remained- in the coach and received his injuries when it was overturned.

The trial was before a jury and the plaintiff recovered a verdict which is supported by the evidence.

There are many exceptions in the case but they present no material error.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    John McDermott, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Master and servant—Negligence—Instructions.
    Plaintiff, a machinist’s helper, in the employ of defendant, was directed hy the foreman to couple cars in motion, but was not instructed as to the danger nor as to the proper method of doing the work. Held, that it was a question for the jury whether he had such knowledge of the danger as not to require instruction, or whether the injury resulted from his ignorance resulting from lack of instructon, and that it was error to dismiss.
    Appeal from judgment, entered on order dismissing the complaint and setting aside verdict pursuant to a stipulation made at the trial.
    Action to recover for injuries caused by the alleged negligence of defendant. On the trial it was stipulated that the court might dismiss the complaint after verdict
    The jury rendered a verdict for $1,800.

      Morris & Whitehouse, for app’lt; Ashbel Green (Charles J. Patterson, of counsel), for resp’t.
   Pratt, J.

The plaintiff, who was a “ machinist’s helper,” was directed by defendant’s foreman to couple cars in motion. This-was a dangerous service, and was not in the course of the employment for which plaintiff had been engaged. He was not instructed as to the danger, nor as to the proper method of doing the work; and the jury have found that his injury resulted from his ignorance, resulting from the lack of instruction.

The rule is well settled that where, by authority of the master, an employe is taken from his ordinary occupation and put to a service with whose dangers he is unacquainted, proper instructions should be given him that he may not be exposed to needless peril.

It is contended for defendant here that the plaintiff had such a knowledge of the dangers he incurred that this rule cannot be invoked for his benefit. We think that was a question for the jury. The charge placed the whole question before them, and they were instructed that the point of the case was, whether plaintiff was hurt because he was not instructed how to do the work properly, and whether, if he had been instructed, he would have escaped.

We are not able to say that the verdict in plaintiff’s favor was-contrary to the evidence. We think the verdict should stand as decisive of the facts in the case. It follows that the order granting a new trial should be reversed, and plaintiff have judgment on the verdict, with costs of circuit and general term.

Barnard, P. J., and Dykman, J., concur.


text:
    Emory Cole, App’lt, v. The Millerton Iron Co. et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Fraudulent conveyance—Insolvent corporations—Rights of creditors.
    During the pendency of an action brought by plaintiff against it, the Rational Mining Company, being insolvent, transferred its land to the Millerton Company, in consideration of the assumption by the latter of certain of its debts, consolidated with the Millerton Company and ceased to do business. The latter company issued bonds secured by a mortgage to a trust company covering the property so transferred. The persons ac tively interested in making the transfer and the giving of the mortgage were officers in both companies. Sold, that the transfer could not be upheld as against plaintiff as a creditor of the National Company; that the mortgage was subject to his right to enforce payment against the property so transferred, and that the trust company should be restrained from having recourse to said property until it has exhausted its remedy against other parts of the mortgaged premises and against the Millerton Company itself, and from enforcing the mortgage as against plaintiff’s equity for the benefit of a holder of the bonds who was one of the parties to said transfer and mortgage.
    Appeal from judgment dismissing complaint.
    Action to set aside, in whole or in part, a conveyance of property from the National Mining Company to the Millerton Iron Company and a mortgage made by the latter company as to the property so conveyed, as in fraud of plaintiff’s rights as a creditor of the former company.

      William Downing (Herrick & Losey of counsel), for app’lt; H. D. Hufcut and Thomas Thacher, for resp’ts.
   Pratt, J.

The views which I have taken of this case require :a reversal of the judgment appealed from. It is an action by a creditor of a corporation to set aside an alienation of its property in fraud of his rights, as he alleges. He had no judgment when the transfer was made, but I think it sufficiently appears that the company was indebted to him in fact, and. the fact is that he subsequently obtained a judgment for his debt, and now stands in the position of and brings this action as a judgment creditor.

The defense is that the alleged fraudulent grantee mortgaged the property in question with other lands to the Mercantile Trust Company, in trust to secure the payment of its bonds, which are now held by innocent holders; and, therefore, as it is said, the plaintiff’s right to follow the property of his debtor has been cut off in the interest of those alleged innocent bondholders. The plaintiff alleged substantially that a large number of these bonds are not now held by persons in good faith. Hence, if that be the fact, or if it shall appear that the rights of those who do hold bonds in good faith may be worked out without interfering with plaintiff’s alleged right in the land fraudulently transferred, the court ought to provide means for the attainment of that result.

It is thus apparent that the merits of the plaintiff’s claim shall be investigated from the beginning.

The case does not show the date of the origin of plaintiff’s claim, but it does show that on October 1, 1887, he sued the National Mining Co. of Paulding, to recover $5,000 damages, and that he recovered a judgment for $2,775 damages, with ‘$288.74 costs upon that claim, besides other suitable relief, July 14, 1888. It also shows that an execution was issued upon that judgment, which was returned wholly unsatisfied. It must, therefore, be assumed that this judgment debtor, the National Mining Co., owed this debt ($2,775) October 1, 1887.

It also appears that on the 20th of February, 1888, this debtor corporation owned a large amount of land, which is included in the mortgage of the Trust Company, and valuable leases for mining rights on other lands, and that, on that day, being wholly insolvent and unable to pay its debts, it sold, assigned and conveyed all its property to the Millerton Mining Co., in consideration of one dollar and the-assumption by the latter of certain debts. It does not appear whether or not the plaintiff’s claim was among those items assumed, and I think it is immaterial, since there is no suggestion that there has been any offer by anybody to pay the plaintiff’s claim.

This sale to the Millerton Company was made under peculiar circumstances which render it, in my judgment, utterly indefensible as against plaintiff’s claim. The executive officers of this grantor company were the same as those of the grantee company, Mr. Barnum being one of" them, indeed the chief actor in the business. The undisguised object of this transfer, as found by the learned trial judge, was that the National Mining Company should cease and never resume its business, and sell out all its property to the Millerton Company. The scheme seems to have been a sort of consolidation of the property of several mining corporations into the Millerton Company. For example: On the same day as this transfer by the National Mining Co., the Riga Mining Co. conveyed all its property to the Dutchess Mining Company, who then conveyed it, and all its other property, to this Millerton Co., the same persons participating in, and, as I assume, directing the business scheme. The National Mining Company never did any business after this transfer.

There are several obvious reasons why the transfer by the National Mining Company cannot be upheld as against the plaintiff. In the first place it was ultra vires within well established rules,, not only as against judgment creditors but as against every person interested in that company, and the plaintiff, as an existing creditor of the company, was interested in it, and in the lawful discharge of its duties. Its property, the whole of it, was a trust fund held by it, in trust, primarily for its creditors; and it, like every other debtor, was bound to see to it that the implied trust was performed. So, too, its officers were bound, as trustees for the plaintiff and all other persons interested in that company, to perform those duties. Unlike the case of an individual debtor, it was unlawful for this corporation to sell out its property; under these circumstances, for the purpose of committing suicide, no matter whether it acted in good faith or- not, and utterly independent of the question of its solvency. Again, being insolvent,, its transfers were void. Its officers knew, or were bound to know, all this, and I cannot conceive how they could have acted in what the law calls good faith in view of all these facts. They must'have known of the pendency of plaintiff’s suit. It was their duty to wind up that company and apply its property to the payment of its debts, the plaintiff’s among the rest. It is no answer to say that the Millerton Company owned all its stock. That fact rather aggravates than palliates or excuses the transaction.

The rights of stockholders were subordinate to the plaintiff’s rights as a creditor irrespective of whether he had a judgment or not. Indeed, it was only because he had no judgment that the wrong was possible. And these officers who thus owed these duties to the plaintiff were also officers, and the managing officers of the Millerton Company, the grantee, thus disclosing another and independent reason why the sale should not stand and quite aside from the question of notice of the illegality of the sale it; self on grounds above stated. They were the actors for both the-seller and the buyer, and, besides that, the buyer thus had lull notice of the other infirmities of the transaction as against plaintiff and his claim.

This transfer must, therefore, be regarded as indefensible and we must treat it as void as against the plaintiff and let him follow and obtain satisfaction of his claim out of the property thus fraudulently transferred, unless some insurmountable obstable has. intervened to prevent us from discharging that plain duty.

Let us now go to that question: The facts found by the learned trial judge, or otherwise apparent from the undisputed evidence, are that it was a part of the scheme of these managing officers to increase the capital of the Millerton Company, in which they were personally interested, predicating that increase in part, at least, upon the property acquired at this time.

No doubt it was partly predicated upon the property thus fraudulently and unlawfully diverted from plaintiff’s claim. They also intended that the Millerton Company should issue bonds to the extent of $250,000 to be secured by mortgage to the trust company ; and either to secure old debts therewith or raise money for use in its business, the Millerton Company did issue such bonds and on the same day when this fraudulent and unlawful transfer was made against plaintiff’s rights executed and delivered a mortgage to the trust company to secure the payment of these bonds, covering the property out of which plaintiff was entitled to the satisfaction of his debt. I take it to be plain that if the trust company had either actual notice of this infirmity in the title of the Millerton Company or notice sufficient to put it on inquiry, that notice is to be imputed to the persons who took and claim to hold security through the mortgage for the payment of the bonds. So, too, since the trust company advanced no money itself, but simply acted as a trustee for the bondholders, I suppose that it can have no greater rights under the mortgage than the bondholders themselves. And if these bondholders or any of them could not themselves enforce their lien, then the trust company cannot enforce it for them. This must be true of each separate bondholder who had notice, or notice sufficient to put him on inquiry, or who otherwise stood in such relation to the original transaction that he ought not, in equity, to obtain anything for himself as against the plaintiff.

Keeping these propositions in mind, how stands the case as to the' trust company ? If the date of the record of its mortgage appears in the case, I have overlooked the fact. I assume that it was promptly recorded and must treat that transaction as completed on the day of its date, February 20,1888. Did it examine the title ? If not, why not ? Assuming that it did examine the title, it must have found the common officers of the National Mining Company as the active agents and officers of the Millerton Company in that transaction by which plaintiff, on the very day of the date of this mortgage, was defrauded. The same persons who conveyed the property of the National Company to the Millerton Company executed the mortgage by the latter to the trust company. And, since that conveyance swept out all the property of the grantor corporation, and since it must have seen that the other mortgaged property had fallen into this consolidation scheme, it is scarcely reasonable to presume that it did not have notice of, or sufficient notice to put it on inquiry with respect to the real character of the transaction between the National Company and the Millerton Company. It is certain that it must have seen that the same persons were officers who acted for the buyer and seller,.for their names appearing in the conveyances, in-eluding its own mortgage, must have suggested the fact. It seems to me that this suggestion did not receive due weight on the trial But, again, how stands the case with the bondholders for whose benefit alone the trust company may enforce this mortgage if it is to be enforced at all.

It is found that $25,000 of the bonds were sold to a Mr. Turner of Chicago, and $25,000 were delivered to a Mr. Warren of Troy, as security for notes of the Millerton Company, amounting to $20,000. It does not appear whether or not that $20,000 note was for a new or old debt; but no matter. The remaining $200,000 of bonds were delivered to the Western National Bank as collateral to a note made by the Millerton Company for $75,000, which note was endorsed by Mr. Barnum and Mr. Frink, the chief actors in the original unlawful transfer by which plaintiff was defrauded. Now, it may well be that these bondholders could hold and enforce their bonds against the Millerton Company, but their right to a lien under this mortgage as against plaintiff is quite another affair. If the trust company is chargeable with notice of plaintiff’s equity, I take it that none of the bondholders could enforce the lien of this mortgage as against plaintiff on the property which came from th.e National Company. And why are they not chargeable themselves with notice of anything appearing of record or in the line of the title to the lands and property against which they claim a lien ?

In respect to the $200,000 of bonds held by the Western Bank, it appears that they came back to Mr. Barnum, the chief actor in the transfer between the National and the Millerton Companies, the man who was an officer and trustee of both, and who was, therefore, a trustee charged with trust duties to see to it that the property of the National Company was applied to plaintiff’s debt before it could be lawfully or honestly taken to a company in which he was personally interested, in a sense taken partly for his own benefit. What, therefore, were Mr. Barnum’s legal rights respecting this lien under this mortgage on these $200,000 of bonds ? He was an endorser on the note held by the Western Bank. In a sense he was a part, of the bank’s collateral. His, and the bonds of Mr. Frink, constituted the collateral.

If Mr. Barnum shall be permitted to enforce the lien under this mortgage, it will transpire that he shall be permitted, in this indirect way, to utilize his own original breach of trust towards plaintiff, his own illegal act, for his own advantage. ‘ In other words, he will get for himself what he was bound to save and apply to the payment of plaintiff’s claim, doing back to his relations to these notes and bonds held by the bank, suppose that the bank had taken this mortgage and • these bonds directly as collateral to the Millerton Company’s note endorsed by Mr. Barnum, and that, the bank had attempted to foreclose; were not .plaintiff’s equities such that he could have required the bank to resort to Mr. Barnum’s personal liability on his endorsement of the note before having recourse to the lien under the mortgage on the land which constituted a trust fund for the payment of plaintiff’s claim? I fail to see why equity would not have required precisely that, if it were necessary, in order to save his rights. If so, Mr. Barnum could not have been subrogated to the position of the bank, even if it had held the bonds without notice of plaintiff’s equity, a position which I seriously doubt. But perhaps that question is not involved. Mr. Barnum bought the bonds, as it is said, from the bank. He, therefore, claimed to hold the benefit of the bank’s lien under the mortgage. But he had notice of the plaintiff’s equity. And it is answered that he bought the bank’s right under the mortgage, and may, therefore, enforce that new title even as against his own notice; but that is not the trouble. If his scheme should succeed he would thus get plaintiff's property flat in the face of his own wrong and breach of trust, and of his own personal liability for that breach of trust to plaintiff. If he were to get it in any way it would be impressed with the original trust which he was bound to respect and perform, and I think that equity would convert him into a trustee, pro tanto, for plaintiff’s benefit. Equity will not recognize or tolerate any other method by which a trustee shall thus obtain the property of his beneficiary without just compensation.

Without pursuing the subject farther I state on my own conclusion that, upon the facts appearing by this case, this mortgage is subject to the plaintiff’s right to enforce his payment against that part of the mortgaged premises which came from the National Mining Company, and that the conveyance by it and the Trust Company’s mortgage is void as against that payment. But since the facts may be changed on a new trial, I hold that a new trial shall be granted, with costs of this appeal to plaintiff to abide the event of the action. It is plain to my mind, in any event, that equity demands that the Trust Company should be required by injunction to abstain from any recourse to the property which the Millerton Company obtained from the National Company until it has exhausted its remedy against other parts of the mortgaged premises, and against the Millerton Company itself, before interfering with the land on which plaintiff’s equity rests, and that the mortgage cannot be enforced, as against plaintiff’s equity, for Mr. Barnum’s benefit on these $200,000 bonds.

J udgment reversed and new trial granted, costs to abide event

Dykman and Cullen, JJ., concur.


author: Barnard, P. J.

text:
    James Donnelly, Resp’t, v. Edward J. Woolsey, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Jurisdiction—County court—Waiver.
    Where the defendant in an action in county court appears generally and demands a copy of the complaint, and by his answer does not allege non-residence or attack the jurisdiction of the court except by a denial of an allegation of the complaint that the parties were both residents • of the county, he thus submits to the jurisdiction of the county court, and no issue as to his residence is made.
    Appeal from judgment of the county court of Queens county-in favor of defendant, entered on verdict.

      Action to recover the amount of an award made to plaintiff by arbitrators appointed pursuant to the terms of a farm lease, and for goods sold and delivered. The complaint alleged that the parties were both residents of Queens county ; that plaintiff, as tenant of the defendant, occupied a farm belonging to the defendant, etc. The answer for a first defense denied all the allegations stated as a first cause of action in the complaint, except that plaintiff, as tenant of the defendant, occupied a farm belonging to the defendant, etc. The other facts appear in the opinion.

      S. B. Noble, for app’lt; Knevals & Perry (Edward J. Knauer, of counsel), for resp’t.
   Barnard, P. J.

The plaintiff hired the defendant’s farm at first at a money rent The personal property on the farm was leased with the farm. There was an appraisal of its value taken and the cattle and personal articles were to be returned at the end of the year or paid for at the inventoried price. The lease was renewed under these terms, or with slight changes in the money rent, until March 10, 1886. In February, 1886, there was a change in the terms of the lease. The principal one, so far as respects the case under consideration, consisted'in a stipulation that the plaintiff should give up the farm on seventy days notice; the crops to be valued by two arbitrators if the defendant requested plaintiff to leave the farm. This lease was renewed with slight verbal changes which did not embrace this claim as to the plaintiff giving up possession during the term. Early in June, 1888, the defendant required and had possession of the farm under the seventy days notice and by the aid of proceedings to dispossess the tenant for holding over after his term expired. Each of the parties selected an appraiser. They made an award. The award included the property the landlord was entitled to and the value of the crops which the tenant was to be paid for. The parties and witnesses gave very conflicting evidence, but there is no reason to doubt the accuracy of the finding of the jury. The jury found for the lease which included the notice to leave. They found for the ordinary appointment of the arbitrators, one by each party. They found the appraisal and the service of a notice of it on each party. They reduced the appraisal as to the plaintiff, but they had abundant ground to do so if they credited or allowed either omissions to return property or counterclaim against which the defendant gave evidence tending to support. The tenant was not bound to stop working the farm on receiving the notice to quit. He was bound to continue the farming like occupation of the farm until the end of the seventy days. Payment for his year's labor depended on this and an omission to plant would have been unjust to the owner. The summons was personally served in Queens county. There was a general appearance and demand for a copy of the complaint The complaint stated the venue to be in Queens county and that both parties resided there. The answer made no issue as to the residence of defendant The issue was no longer an open one. The defendant by his answer submitted to the jurisdiction of the county court. McCormick v. Pen. Central R. R. Co., 49 N. Y., 303; Jones v. Jones, 108 id., 415; 13 N. Y. State Rep., 838; Olcolt v. Maclean, 73 N. Y., 223.

The should therefore be with costs.

Dykman and Pratt, JJ., concur.


text:
    Lizzie V. Bevans, App’lt, v. Lydia F. Young et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Statute of frauds—Oral contract fob sale of seal estate—Part PERFORMANCE.
    Defendant refused to extend plaintiff's lease for five years, but orally agreed to give her the refusal of buying the premises until a time specified. Prior to such time, however, she sold to other parties. Plaintiff bought some furniture, put coal in the cellar, trimmed the grapevine and sodded part of the yard, but did so as a tenant and not in reliance on the option to buy. Held, that there was not such a part performance as to take the oral agreement to sell out of the statute of frauds.
    Appeal from judgment of nonsuit.
    Action to compel the specific performance of an oral contract to convey real estate.

      Gilbert O. Hulse, for app’lt; William H. Crane, for resp’ts.
   Barnard, P. J.

The agreement relied on by the plaintiff for the purchase of the property was not in writing and was void by the statute of frauds. She had hired of the defendant the premises by a written lease for one year from April 1, 1888. Before this lease expired there was a new arrangement made for the leasing of the property from April 1,1889, to May 1,1890, which included some personal property, window shades and lamps having been “ thrown in ” by the defendant. In November following, the plaintiff applied for a five years lease. Defendant declined, but gave the plaintiff the refusal of buying the property at $3,250 “ during the term.” The plaintiff claimed that a new term was made in November, 1889, for one year from that time. The judge at special term found that the leasing was on its renewal for one year from 1st of April, 1889. This accords with the probabilities of the case. On the 24th of March, 1890, just before the expiration of the lease, the defendant obtained an offer of $3,000 for the place and she offered the right to purchase to the plaintiff at that price. She made objection about a “ drive on one side of the property that Mr. Farnum used.” The parties separated with an understanding that “two or three days were to be given to think it over.” Finally the defendant gave the plaintiff a right to purchase until the 1st of May, 1890. On the 1st of April, 1890, the defendant sold the land to one Lambert. After the 1st of April, 1890, the defendant dispossessed the plaintiff who was holding over after the expiration of term. There is no proof that the plaintiff ever decided to take the property. The proof of part performance is not sufficient to call for a specific performance of a void contract. Some furniture was bought. Some coal was put in the cellar; the yard was fixed a little ; the grape vine was trimmed, and some eight feet square was sodded. The trial court finds that this work was not done in reliance upon the option to buy, but as tenants, and this is, undoubtedly, the proper conclusion. The furniture would suit other houses, and the work is so trifling that a tenant would ordinarily do it to make the home more attractive.

The judge was not bound to find the entire credibility of the plaintiff’s witnesses. If the testimony taken had gone to a jury, and they had found adverse to the plaintiff upon it, no appellate court could properly reverse the finding.

The evidence was peculiarly such as would permit a different deduction from that claimed by the plaintiff.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Landon, J.

text:
    Joshua P. Demby, Resp’t, v. The City of Kingston, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Nuisance—Damages.
    The plaintiff owned two lots of land in a city, separated by a railroad track. A stream ran through one lot; into this the contents of sewers, maintained by the city, ran and caused a nuisance as to both lots. One of the lots was owned by the plaintiff and his wife as tenants by the entirety. The stream ran through this lot. The plaintiff covered it. Before this action was brought he and his wife sold this lot. In an action by him for a nuisance, Held, that he undoubtedly could recover the expense of covering the stream, since by this act the premises were only restored to their condition before the nuisance.
    2. Same—Injunction.
    It is no objection to the granting of an- injunction in favor of one lot that it will beneficially affect another lot which plaintiff and his wife sold.
    3. Same—Notice to city.
    The sewers were built in 1879, and in 1883 water was introduced into the city, and with its knowledge, but without formal permission, private owners connected with the sewer. It was shown that aldermen had inspected the nuisance, and that the street superintendent testified it had become such in 1885. Held, that there was sufficient notice to the city, and that it was liable.
    Appeal from a judgment awarding damages and an injunction, entered upon the decision of the court upon a trial of some of the issues by a jury, at the Ulster circuit, and upon the approval thereof by the court and further findings.
    The complaint alleged the ownership in the plaintiff of two separate houses and lots in Kingston; that the defendant maintained a sewer which discharged offensive matter into a small stream running through one of the lots and near the other, creating and maintaining a nuisance which had damaged both lots, by fouling the air of both houses and lots and depositing offensive matter upon one of the lots, to the depreciation of their actual and rental value.

      G. D. B. Hasbrouck, for app’lt; F. A. Westbrook, for resp’t.
   Landon, J.

The existence of the nuisance and its injurious effects were established. The plaintiff was permitted to recover damages with respect to two parcels of property, one of which was, when the action was commenced, owned by himself and wife as tenants of the entirety, but which before trial they sold without any reservation. While owning this parcel the plaintiff covered the small open stream which ran through it, into which stream the offensive matter creating the nuisance was discharged from the mouth of the sewer, about thirty-six feet distant. He covered the stream to lessen in part the offensive smells and gases which, arising from it, pervaded his premises. The learned trial judge allowed him to recover for the expense of covering this stream, but denied recovery of any other damages with respect to this lot.

The husband was entitled to the use of the premises during the life of both parties, Bertles v. Nunan, 92 N. Y., 152; Lord v. Lord, 33 N. Y. State Rep., 753, and therefore it was not necessary to make his wife a party; the damages he was permitted to recover he sustained.

The court submitted the question to the determination of the jury whether the plaintiff necessarily incurred this expense in remedying the nuisance, and the court approved the findings of the jury. The fact, then, is that the expense was not voluntarily or unnecessarily incurred, nor was it an expenditure indirectly caused, but was in fact directly compelled by the nuisance and its proximate result and therefore recoverable. Pending the action the plaintiff and his wife sold the premises, and therefore, it is urged, parted with the right to damages. By the nuisance the premises were injured in value presumably to the extent of the expense which the plaintiff incurred. By the expense the premises were restored to their former condition, and thus by their sale the grantors only received their value undamaged, not that value plus the expense to restore them to it. Just as if defendant had destroyed the house and plaintiff had rebuilt and then sold the premises; he would not sell two houses and should recover for the one lost.

The appellant urges that the plaintiff could have no injunction to abate the nuisance with respect to the parcel which he had sold. That is so, but the nuisance affects the parcel which he retains, and it is no objection to his injunction that it will beneficially affect the lot he sold and all the other lots in the neighborhood.

The sewer in question was a storm water sewer, constructed in 1879. In 1883 water was brought into the city and thereafter private owners connected their closet and waste pipes with this sewer. Ho formal leave of the city was obtained and it does not appear that any was necessary. The court refused to hold upon defendant’s request that the plaintiff was not entitled to recover for injuries prior to the knowledge by the city of the condition causing the injuries. The action was commenced in December, 1887, and the recovery seems to be for damages from the beginning of the nuisance. Complaints were made to the common council in 1885, and in August, 1886, a formal resolution respecting the matter was adopted. It was shown that different aider-men inspected the place of the offensive discharge from time to time, and one of them in 1883 connected his closet pipe with the sewer. The superintendent of streets testified to its having become offensive in 1885. We think it may be presumed in support of the verdict that the city upon the introduction of water consented to the connection by private parties of their waste pipes with the sewer. The city therefore cannot be allowed to take the position that the wrong of private parties done without its knowledge or consent and against its rules created the nuisance, and that it is exempt from liability until it obtains actual or constructive notice.

The defendant urges that the injunction is improper, because it cannot in order to abate the nuisance lawfully enter upon the premises of parties who discharge offensive matter into the sewer. Its powers for the protection of health and its own property are probably ample to enable it to sever any improper connection with the sewer, if it really should desire to do so to promote the public welfare. However this may be, the defendant can abate the nuisance by extending the sewer along the open stream or by embracing it within it. We do not regard this objection ae a substantial one. The city must be destitute of the' usual municipal powers if it can neither protect its sewers nor extend them where extension is proper.

The judgment should be affirmed, with costs.

Learned, P. J., and Myham, J., concur.


text:
    Charles Stone, Resp’t, v. The City of Troy, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Negligence—Improper condition op a gutter in a street.
    A gutter in a city street was when originally constructed eight feet wide on top, eighteen inches deep, and its sides gradually sloped .from the top to the centre line of the bottom. At a time when the plaintiff was injured by driving into it, it had, through the breaking away of rock, become upon one side perpendicular, with a direct fall of eight inches, and its depth generally had increased to two feet. This state of affairs had existed eight months. Held, that a recovery against the city was proper.
    Appeal from a judgment, entered upon a verdict of the jury upon the trial at the Rensselaer circuit.

      William J. Roche, for app'lt; John P. Kelly, for resp’t.
   Landon, J.

We reversed a judgment in favor of the plaintiff upon the former appeal, because we thought the evidence was conclusive that the street gutter was in good condition. 21 N. Y. State Rep., 639. Upon the second trial, which now comes before us, the evidence on the part of the plaintiff tended to show that the gutter was in fact defective, and had long been so. The gutter was on the south side of Middleburgh street, in the city of Troy, and across Eighth street, at its intersection with Middleburgh. It was a “ basket” gutter, carved in the natural rock, and was for the passage of surface water.

It was originally properly constructed, eight feet wide on top, eighteen inches deep, and gradually sloping down from the top on each side to the center line at the bottom. The testimony tended to show that the rock had so broken on the south side as to form a perpendicular wall eight inches high, and that the plaintiff while sitting in his wagon, driving his team of horses down hill around the corner from Middleburgh into Eighth street, the intersection being on a hill side, was thrown from bis wagon and injured, because the wheel on the down hill side sank in the depression next to the solid wall, while the wheel on the opposite side mounted the elevation.

The disputed questions of fact were for the jury, and we see no errors of law requiring a reversal.

Judgment affirmed, with costs.

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


text:
    Ann C. Ostrander, Resp’t, v. John T. Washburn et al., App'lts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Evidence—Boundabies.
    In an action for trespass the plaintiff claimed that a white oak stump was the northeast corner of a farm, while the defendant, claiming under one McGinnis, alleged that the true corner was thirty-two feet west of this stump. The lands of the contestants adjoined, and together made the south boundary of the farm of one Myer. The latter testified for plaintiffs that he and McGinnis had divided their division fences, and that he had always "built the west half beginning at the oak and going easterly, and that as to so much of the division fence as was between him and the plaintiff the witness had built- his share of the same, beginning at said oak, and extending westerly. On cross-examination it appeared that the question whether the oak was the dividing point in the north boundaries of the plaintiff, and of the defendant, had never been raised. Held, that the admission of the evidence was improper because the testimony might have misled the jury.
    Appeal from a judgment entered upon the verdict of a jury at the trial at the Ulster circuit.

      Peter Cantine, for app’lts ; John E. Van Etten, for resp’t.
   Landon, J.

The defendants appeal from a judgment entered upon the verdict of a jury against them. They were charged with cutting trees standing upon the plaintiff’s land, and taking the wood away. The defendants claim under McGinnis, their vendor of the standing trees. The plaintiff and McGinnis own adjoining farms in the town of Saugerties, Ulster county. The determination of the action depends upon the location of the boundary line. Both parties rely upon a deed to plaintiff’s ancestor, given in 1835, for a description of the boundary. The description begins at a pitch pine tree standing in the boundary, and after nineteen courses and distances ends there. The stump of the tree is still standing. The plaintiff claims that a white oak tree standing about 900 feet northerly of the pine tree is the northeast corner of her farm.

The disputed boundary and locus in quo depend upon the location of this corner. The surveys given in evidence on the part of the plaintiff make the white oak tree the corner, but the testimony shows that the surveyors adapted their surveys to the corner, and then adjusted the courses and distances given in the deed accordingly. Their testimony tends to support the reliability of their surveys. The survey made by the defendants’ surveyor seems to us to be the more reliable. The thirteenth course in the survey runs along a fence which both sides concede to be the line, “to the west side of the stage road leading from Kingston to Saugerties," quoting from the deed. That established line enabled the surveyor to obtain the variation of the needle. Starting from that fixed point on the west side of the stage road, using that variation, following the courses and distances according to the calls of the deed, confirmed by an established line for the length of one intermediate course, he reached the pitch pine tree in due course. This left the disputed corner 82^ feet west of the white oak tree, and gave McG-innis the land in dispute.

Other evidence was given on the part of the plaintiff tending to show the practical recognition of the white oak tree as the corner. The north line of the plaintiff’s farm and the north line of the farm of McG-innis are in a continuous straight line and together form the south boundary of the farm of Edwin Myer. Myer testified in plaintiff’s behalf, notwithstanding defendants’ objection, that he and McGinnis had divided their division fence between them and he, Myer, had for fifty years built the westerly half of it beginning at the white oak in question and extending easterly; he also testified, notwithstanding like objection, that he had built his part of the division fentíe between his land and that of the plaintiff, beginning at the same oak and extending westerly. Upon cross-examination it appeared that the witness had built his part of the division fence between his farm and thé other two farms and that the part he built was on both sides of the oak, and that neither party had ever spoken of the oak as the point of division between them, or as indicating where Myer’s share of the division fence began or ended. Defendants’ counsel moved to strike out his testimony given on the plaintiff’s examination, and the motion was denied.

We think it should have been stricken out. It seemed to make it appear that the oak was a recognized corner between the lands of plaintiff and McG-innis, when in fact there was nothing more than that the witness had built upon both sides of the oak, and that he probably supposed it was the corner between their lands. It was in fact immaterial, but it was likely to mislead the jury.

Judgment reversed, new trial granted, costs to abide the event.

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


text:
    Charles S. Weston, Resp’t, v. Mary R. Stoddard et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Partition—Effect of defendant’s failure to serve answer on the OTHER DEFENDANTS.
    The plaintiff was tenant in common of certain premises with the defendants and brought an action of partition alleging that no liens existed. The-, defendant Stoddard, who owned three-fourths of the premises, answered and set up a mortgage upon all the premises given in 1855 to one who was the common source of title and assigned to Stoddard. To this plaintiff replied setting up payment and the statute of limitations. The court refused to pass upon the validity of this mortgage. Held, that as the defendant Stoddard had not served her answer upon the other defendants, it was within the discretion of the court to refuse.
    2. Same.
    The defendant Stoddard also claimed to be mortgagee in possession and that as such'she was entitled to retain possession and that it was error therefore for the court to grant a judgment which would oust her without first deciding upon the validity of her mortgage. Held, that as by failing to serve her answer upon the other defendants she had withheld its issues from them she was not entitled to a judgment as against them which would in effect prevent for a time at least any final judgment.
    Appeal from an interlocutory judgment in partition.
    On April 3, 1855, the defendant Abiel Stoddard owned the premises described in the complaint, and on that day conveyed an undivided one-fourth part thereof to Haskell Weston, who, at the same date, gave to Stoddard his mortgage thereon to secure his bond also given for $1,000, the purchase money thereof. The mortgage was duly recorded the same day and no payments have been made thereon and it remains unsatisfied. Weston, June 2, 1857, conveyed his undivided one-fourth to Charles Lee and Samuel Weston. The plaintiff and several of the defendants have succeeded to or acquired the title to this undivided one-fourth. Mary E. Stoddard, in 1883, became the owner of the other undivided three-fourths. She has since sold some lots to the defendant Bridget Daig and others, not knowing anything of the deed to Haskell and his mortgage to Abiel Stoddard, but supposing .she owned the entire premises. She has since obtained an assignment of the bond and mortgage of $1,000. Haskell Weston, from the date of the mortgage to his death, was a resident of Vermont, and never returned to this state. Charles Lee and Samuel Weston were also residents of that state.
    The complaint alleged the ownership by the plaintiff and Mary E. Stoddard and the defendants, Mary’s grantees, of the premises as tenants in common, and alleged “ that there are no general or specific liens or incumbrances against said premises or against any or either of the undivided shares in said premises.” Mary E. Stoddard, by her answer, denied this allegation, and set.up the $1,000 mortgage as a valid lien upon the undivided one-fourth part claimed by the plaintiff and other parties. The plaintiff replied to this answer setting up payment and the statute of limitatations.
    The court found the facts as above set forth, and also that Mary E. Stoddard has been in actual possession of the premises since 1880, but refused to pass upon the validity of the mortgage, or whether it was a lien upon the shares awarded to the plaintiff and the defendants who have succeeded to the title of Haskell Weston, but decided that such mortgage, if valid, should attach to such shares; also, that the lots sold by Mary E. Stoddard should be embraced in the three-fourths to be set off to her.
    C. S. Lester, for app’lts; W. B. French, for resp’t.
   Landon, J.

There was an issue joined between the plaintiff and the defendant Mary E. Stoddard whether the purchase mortgage given by Haskell Weston April 3, 1855, upon an undivided fourth of the premises for $1,000 and interest, which mortgage is now owned by said defendant, is a subsisting incumbrance thereon. The court found that the mortgage was given, and that no payments have been made thereon, and that it is unsatisfied of record. Also that the mortgagor and hiá grantees and those claiming the undivided one-fourth have been continuously non-residents of the state since the date of the mortgage. The plaintiff and seventeen of the defendants are found by the court to be the owners of the undivided one-fourth. The court refused to determine the question whether the mortgage was a subsisting incumbrance upon the share of the plaintiff and the said seventeen defendants-, but adjudged that they were entitled to that share, and that the mortgage if valid should attach thereto to the exclusion of the remaining three-fourths which were allotted to the defendant and to the defendants holding under her, and that the mortgage should be subject to any defense that the plaintiff and any of the defendants interested in the one-fourth set off to them may have thereto, “ its validity as a mortgage or lien upon said premises not being passed upon or adjudicated in this action.”

The defendant Mary E. Stoddard claims that since thé plaintiff tendered the issue, and she accepted it, and the issue was joined between them, the court erred in not determining it.

It was undoubtedly competent for the court to determine the issue, but as it was joined only between the plaintiff and the defendant, and not between the defendant and the seventeen other defendants who were interested in the one-fourth part of the premises as to which the mortgage was alleged to be an incumbrance, it is obvious that the determination would bind only the parties to the isáue, and leave the question open between the defendant Stoddard and the seventeen other defendants interested in the question.

The determination of the issue was not necessary to the determination of the rights of the parties to a partition of the premises, and to the several allotments of their respective shares. Section 975, Code Civ. Pro., provides: “ An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried.”

Had the defendant Stoddard served her answer upon the seventeen other defendants pursuant to §§ 521 and 1541, then the-whole controversy as to this mortgage could have been brought before the court as to all the parties interested in it, and the court, in its discretion would either have determined it or directed judgment pursuant to § 1204 substantially as has now been done, and then have severed the action under § 1205 and directed that the same proceed between such of the parties as raised or were tendered issues as to the mortgage. The defendant has not improved her position by omitting to serve her answer upon the defendants, interested in the claim raised by it.

We think the procedure adopted by the court was within its. discretion, and that the discretion was properly exercised.

The court found that the defendant Mary B. Stoddard had "been in possession of the premises since 1880, holding adversely. It had been previously determined that she was only entitled to hold as tenant in common. Stoddard v. Weston, 25 N. Y. State Bep., 922. It is not claimed that her adverse holding, if her title was in fact nothing more than that of a tenant in common with the other parties, could defeat the action. Section 1543. Under the present Code it is what a party to the action rightfully holds, and not what he may wrongfully claim, that determines the nature of like relief to be awarded respecting him. But the defendant claims that she was a mortgagee in possession, and as such entitled to retain possession until her mortgage is fully paid, and that since the action is a possessory one and she is by the judgment to be ejected from such portion of the land as is allotted to others, § 1558, she will therefore be turned out before her claim to stay in is determined, and hence her claim to have the validity of her mortgage and amount due thereon determined was well founded, and it was error to reserve or postpone its determination. Whetker the defendant Stoddard is mortgagee in possession we do not decide. We have already decided that her assignor of the mortgage was not. Stoddard v. Weston, supra. The defendant Stoddard is not entitled to any such judgment against the parties upon whom she has not served her answer. Edwards v. Woodruff, 90 N. Y., 397; Payn v. Grant, 23 Hun, 134.

Assuming that the court had sustained the defendant’s position, then plaintiff could not have procured final judgment of partition against her, for in such case her possession would have been' that of holding the premises as security for payment of her mortgage, and not merely as tenant in common. Bedemption would have to precede final judgment, since such judgment awards possession to the several parties. Sec. 1538. Plaintiff being defeated or postponed and the non-answering defendants having no issue to bring before the court, this defendant would secure a substantial and perhaps unjust victory. She is responsible for withholding the issues from the other defendants, and though she may claim this relief only against the plaintiff, she in fact would obtain it for a time at least against the défendants, and the court to prevent this injustice may properly deny it until she brings before the court upon this issue all tke parties interested in its determination. Such is the spirit if not the exact letter of § 452.

If the defendant’s mortgage is an incumbrance, her remedy by foreclosure is not prejudiced by this judgment. If she is a mortgagee in possession and entitled to payment before partition, she has not so pursued that remedy as to justify the court in awarding it to her in this action. Whether the one course or the other is pursued is a mere question of the remedy, and as the one left to her is sufficient, her rights of property remain unimpaired.

Interlocutory judgment affirmed, with costs.

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


author: Learned, P. J.

text:
    Elizabeth R. Bruyn, Resp’t, v. Benjamin Russell et al., Ex’rs, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Bills and notes—Consideration—Burden of proof.
    The words “ value received ” in a promissory note import a consideration, but if the evidence upon the question of consideration is equally balanced, the plaintiff must fail. It does not lie with the defendant to show that the note was without consideration. The burden throughout the case is upon the plaintiff to show that upon all the evidence there was a consideration.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion to set the verdict aside.

      George C. Keeler (John J. Linson, of counsel), for app’lts; A. T. Clearwater, for resp’t.
   Learned, P. J.

This is an action on a note alleged to have been made by Jacob DeWitt, deceased, the testator of defendants.

There are two grounds of defence: First, that the note is a forgery; second, that if not a forgery, it is without consideration. The case was tried before a jury and a verdict was rendered for the plaintiff. A motion to set aside the verdict was denied. An appeal is taken from the judgment and from the order denying such motion.

The case had been tried once before; and the judgment then entered was reversed by this court. Bruyn v. Russell, 52 Hun, 17; 22 N. Y. State Rep., 374.

The note is in the ordinary form) payable to plaintiff or bearer, three months from date, for $5,000, with interest. It is dated October 29, 1884. The otestator died January 17, 1885, a short time, therefore, before the note by its terms became payable.

The plaintiff produced the note and gave evidence tending to show that it was in the handwriting of the deceased. She also gave evidence tending to show that the deceased was at her house the day of the date of the note. She gave no evidence of consideration other than the note itself containing the words, “ for value received.” She then rested.

The defendants then gave evidence tending to show that the note was not in the handwriting of the deceased. They also recalled Charles D. Bruyn, who had been called as plaintiff’s witness to prove the genuineness of the note. He testified that he first saw the note about a week before the suit was commenced or before he was sworn (probably at the first trial), that the plaintiff brought it and some other papers that have since been used in the case with her to the bank of which he was president, that she then stated the circumstances under which the note was given to her. She said that Mr. DeWitt had stopped at her house one afternoon and said that he might not see her again, and that he wished her to have $5,000 of his property, and that he did it in that way; he stood at the piano and wrote the note. The witness thought, she said, that Mr. DeWitt said it would be the last time she. would see him.

After defendants had rested, the plaintiff called one Russell as a witness, who testified to a conversation of the deceased in 1853, in which he expressed a desire to marry the plaintiff. She also called her son, who stated that the deceased visited her the summer and fall prior to his death.

The plaintiff also was then sworn as a witness on her own behalf. She did not contradict the testimony of Charles D. Bruvn, above mentioned, but she offered to testify that in her conversation with him she did not state all of the circumstances under which she received the note. This was excluded as improper under § 829.

The learned justice, in charging the jury, said that when the holder of a note written for value received produces it in evidence, the legal presumption is that it is given for a good and sufficient consideration. It casts the burden on the party denying that consideration to show that it was without consideration. After stating that the true consideration might be inquired into, the learned justice said: “ The law simply presumed, that is all, a consideration so as to put the burden on the defendant of showing that it was without any consideration.” And, again: “ You must find that the presumption, that the legal presumption, that the note is valid is overcome by the defendant’s evidence which he has produced before you.” And, again: “It is only sufficient for the defendant to satisfy you from facts and circumstances, or positive testimony, to satisfy you that the note was without consideration, to overcome the presumption which the law implies and the burden which is cast upon him.” The defendant’s counsel excepted to these statements.

How, undoubtedly, the learned justice was right in saying that the words for value received were prima facie evidence of a consideration. They are on the face of the paper an admission by the maker that he had received a consideration. But let us suppose that there is equally strong evidence on the part of the defense that there was no consideration, then the plaintiff must fail, because the existence of a good consideration is a necessary part of his cause of action. If then his evidence is met by other evidence to the contrary equally strong, that is enough for the defendant He has not the burden of showing that the note is without consideration. _ It is enough for him that on the whole evidence the plaintiff fails to show that there was a consideration.

This view is peculiarly important in this case. We have on the plaintiff’s side the admission by the maker of the note in the note itself of “ value received.” We have on the defendants’ side the admission of the plaintiff herself to Mr. Charles D. Bruyn, that'there was no consideration; and the making of this admission she does not deny when she has the opportunity. Thus we have admission against admission. Further, there is no evidence given of any dealing between the parties, of any money loaned, of any property conveyed, of any undertaking assumed, of any right relinquished. How, when we consider that, under the circumstances, this was rather a large note, we might reasonably expect that there would be some attainable proof of the transaction in consideration of which such a large promise was made. We have, in fact, only the bare promise and the plaintiff’s admission that it was a gratuity.

¡Now, on what principle shall it be said that in such circumstances the plaintiff may succeed V The rule is otherwise. The plaintiff must succeed by the preponderance of evidence on every point to maintain his action. The maker of the note has admitted in the note that he received value; the payee has admitted on the trial that he did not Certainly there is no preponderance of evidence in her favor.

This question was considered in Perley v. Perley, 144 Mass., 104. The court said of a note that its production and proof of defendant’s signature made a prima facie case. “But the burden of proving a consideration still remains on the plaintiff, notwithstanding this presumption, and if there is any evidence on this point in behalf of the defendant the plaintiff must show by a preponderance of the whole evidence that the note was given for a valuable consideration.”

The court pointed out that, if the defendant sought to meet the note, not by evidence showing want of consideration, but by proving another and distinct proposition, then the burden of proving the latter proposition was on him. For instance, if he attempted to meet the note by proving payment, the burden of that proof would be on him. But, on the other hand, when the defendant disputed the fact of a consideration and produced evidence to show that no consideration existed, then on that point the burden remained with the plaintiff on the whole evidence.

This same doctrine is held in Simpson v. Davis, 119 Mass., 269; Delano v. Bartlett, 6 Cush., 364, where it was held that the evidence on both sides being applicable to the same issue of consideration, the jury were properly instructed that the burden was, throughout, on the plaintiff to satisfy them on the whole evidence of the consideration of the note.

This doctrine is recognized in Carnright v. Gray, 57 Hun, 518; 33 N. Y. State Rep., 98, in both the prevailing and dissenting opinions.

The rule is laid down in 1 Daniel on Neg. Inst, § 164, where it is said, if the whole evidence offered on both sides leaves it in doubt whether there was any good consideration or not, the plaintiff fails of making out his case and the defendant will be entitled to a verdict”

We have examined the cases cited by the plaintiff on this point and we do. not think that they hold the contrary of this proposition. Keteltas v. Myers, 19 N. Y., 231, and Underhill v. Phillips, 10 Hun, 591, and Peets v. Bratt, 6 Barb., 662, presented questions of pleading. Foote v. Valentine, 48 Hun, 475; 16 N. Y. State Rep., 15, held that affirmative proof of consideration was not necessary in the outset, when a note written for value received was given in evidence. Raubitschek v. Blank, 80 N. Y., 478, held that on the evidence there was no proof of want of consideration. The point was not involved in Kimball v. Huntington, 10 Wend., 679.

The question presented in this case was not passed upon in these cases. General expressions may be found that the words value received are prima facie sufficient, and that the plaintiff may rest on them; the defendant then being permitted to give evidence of a want of consideration. But the point we are considering is where the burden lies on the whole evidence, and we think it lies with the plaintiff.

And on this point it seems to us that the learned justice used language in his charge which would mislead the jury, and which would induce them to think that the defendant must satisfy them that the note was without consideration; while the true rule is that the plaintiff must satisfy them that the note had a good consideration. This view is strengthened by the remarks of the learned justice when the defendant moved for a nonsuit on the ground, among others, that it appeared that the note was without consideration. ' The learned justice said that there had been no abandonment by the plaintiff of her legal presumption in respect to the consideration of the note by the introduction of any testimony which showed or tended to show what the consideration of it was. This seems to imply that if the plaintiff had given evidence tending to show the actual consideration, the introduction of such evidence would have been an abandonment of the legal presumption; and hence that the failure to give such evidence made the legal presumption stronger than it would have been if such evidence had been given. This tends to show that the meaning of the charge was that the defendant must have a preponderance of evidence before the jury could find that there was no consideration. To test this, let us suppose that the plaintiff had herself been called as a witness and had testified to the same circumstances as to the execution of the note which she stated to Mr. Bruyn. Could there have been a recovery ? Yet the testimony of Mr. Bruyn, not contradicted by her, is almost as weighty as her own testimony would have been.

When we consider that Mr. Bruyn was the plaintiff’s own witness, and that she therefore must be held to have believed him to be truthful, and that she does not deny that she made the statement to which he testified, it .s difficult to understand how the jury could have found that there was a good consideration, unless they gave to the words “ value received ” in the note some greater legal effect than they are properly entitled to have. They may have thought that a legal presumption was weightier than the testimony of an honest witness.

When the genuineness of a signature is to be determined, not by the testimony of those who saw it written or by any such direct evidence, but by the belief of witnesses as to its resemblance to other writings and by the comparison of other writings, the appellate court, if such other writings are produced before it, is substantially as well able to judge as the jury. Therefore a case like the present is one in which we feel at liberty to examine freely the matter of the genuineness of the signature.

The testimony of witnesses who had seen the deceased write, and who believed or who did not believe the note to be in his handwriting, is really only their belief or disbelief as to the resemblance of this writing to other writing known to be his. And while a familiarity in handwriting in general may enable one to detect resemblances or differences not noticeable to the ordinary observer, still the testimony is really founded solely on similarity or dissimilarity. And similarity and dissimilarity are things which can be seen by an appellate court.

But it is said on this point that the jury have twice held the note to be genuine. As to that it is sufficient to say that the former verdict was based on evidence which was decided to have been inadmissible, and therefore that verdict was not reached on competent evidence. And we may say that where the plaintiff is a woman, and the defendants are executors of a deceased old bachelor of good means, and where a glamour of elderly affection is hinted at in the evidence, we need not be surprised if a jury should find a note to be in the handwriting of the deceased, though it were printed on a typewriter.

We have examined the exhibits produced at the trial and now produced before us. They fail to satisfy us of the genuineness of the note.

But, without passing on that point, we think there was error in the charges above stated. And we also think that the verdict was against the evidence on the question of consideration.

Judgment and order reversed, new trial granted, costs to abide event.

Landon, J., concurs; Mayham, J., concurs in result.


text:
    George B. Martin, Resp’t, v. Franklin Mallery et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Partnership—Effect of purchase of firm assets by a single partner.
    W. H. H. sold goods to F. M. and S. H., as partners prior to their dissolution, after which event P. M. succeeded to the interest of the firm. Subsequently W. H. H. recovered judgment against both, issued execution against F. M , and levied upon and sold the partnership stock. The plaintiff brought this action upon a note of F. M., endorsed by S. H. and another, and severed in entry of judgment even as against F. M. and S. H. The plaintiff alleging that his debt, if not a partnership debt, was the debt of the partners, applied to have the sheriff pay him, upon his executions, the moneys realized upon the execution of W. H. H, Held, that the purchase by F. M. from S. H. vested the former with the absolute title to the property, and that the execution of W. H. H. was entitled to be paid first.
    Appeal from order directing the sheriff to pay upon plaintiff’s judgment moneys realized by him on an execution against the same defendants in favor of one Hollister.

      J. W. Palmer, for app’lts; George H. Martin (Edward T. Brachett, of counsel), for resp’t.
   Learned, P. J.

This is an appeal from an order directing the sheriff to pay on the aforesaid judgment moneys raised by him from a sale on execution upon a judgment in favor of William H. Hollister Franklin Mallery.

The plaintiff Martin commenced an action on a promissory note made by Franklin Mallery, and endorsed by Stephen Holland and Rachel Mallery. In that action he recovered judgment against Franklin Mallery May 13, 1890, and against Stephen Holland and Rachel Mallery June 10, 1890. An execution on the judgment against Franklin Mallery was issued June 23, 1890, and returned nulla bona August 21, 1890. An execution upon the judgment against the other two defendants was issued June 23,1890, and returned nulla bona August 23,1890. This execution is in form against each and all of the defendants.

William H. Hollister commenced an action against Franklin Mallery and Stephen Holland, and recovered a judgment against Franklin Mallery June 20, 1890, on which he issued an execution that day, by virtue of which execution the plaintiff levied on the interest of Franklin Mallery in “the Panama store.” This execution was satisfied by sale July 8, 1890.

Martin, the above named plaintiff, moved upon notice dated the 18th of July, an affidavit, and on the judgment rolls and execution in his action, to require the plaintiff to pay his execution before that of Hollister; which motion was granted July 29, and Hollister appeals.

The affidavit of Martin avers that his judgment was for a debt owing by the firm of Mallery & Holland, composed of Franklin Mallery and Stephen' Holland, and that the judgment of Hollister was against Franklin Mallery alone. The answering affidavit of Hollister denies that Martin’s judgment was on a firm debt, and refers to the complaint in Martin's action. He avers that his own debt was for goods sold to Franklin Mallery and Stephen Holland as partners prior to their dissolution; that they dissolved partnership about May 27, 1890, and that Franklin Mallery succeeded to all the interest of the firm.

It is plain that the judgment roll in Martin’s action does not show a partnership debt It is on a note of Franklin Mallery endorsed successively by Stephen Holland and Rachel Mallery. All of the defendants were served the same day, but the plaintiff severed his judgments, instead of taking a judgment against them as joint debtors. He even severed as against Franklin Mallery and Stephen Holland.

Martin, however, relies on the doctrine of Saunders v. Reilly, 105 N. Y., 12 ; 6 N. Y. State Rep., 452, and of Davis v. D. & H. C. Co., 109 N. Y., 47; 14 N. Y. State Rep., 38. He urges that even if his debt was not a partnership debt, yet as it was a debt owing by all the partners his execution had priority over an execution previously levied against one partner. We think that those cases do not sustain his position; and indeed are rather contrary to it In the latter case the general term had given priority to a partnership debt owing by the partners individually. But the court of appeals reversed that decision and held that a prior judgment against the several partners had priority over a later judgment on a prior debt The other case is similar. Under these cases Martin’s execution against both partners individually if first levied would have taken the firm property (assuming that the property still belonged to the firm) in preference to a subsequent execution against the firm. But that is not this case; Martin’s execution is the subsequent, and Hollister’s the prior. Martin, therefore, attempts to assert that benefit of being a creditor of the firm over individual creditors which was denied in those cases.

But there is another view which may make it unnecessary to decide this last point. Hollister alleges that about May 27, Franklin Mallery bought out Stephen Holland and succeeded to all the interests of the firm. There is nothing to contradict this. How in Saunders v. Reilly, ut supra, at p. 18 this subject is discussed; and it was held on the authority of Stanton v. Westover, 101 N. Y., 265, that such a purchase vests the purchasing partner with the absolute title to the corpus of the partnership property, as if it had always belonged to him. How this rule may be qualified in the case of fraud, we need not inquire. Under that rule the purchase from Holland by Mallery gave him the absolute title. And necessarily the execution against him, being first levied, must be first paid.

So far as the equity of the case goes, Hollister’s affidavit shows that his judgment was for a firm debt. So that he is committing no injustice when he levies on property formerly belonging to the firm, and now,, since Mallery’s purchase, belonging to him.

We think the order should be reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.

Landon and Mayham, JJ., concur.


author: Brown, J.

text:
    Cornelius W. Carnwright, Resp’t, v. Morgan Gray et al., App’lts.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Bills and notes—Consideration.
    An action was brought upon a promissory note reading, “ Quarryville, September 2,1871. Thirty days after death I promise to pay to Cornelius Carnwright fifteen hundred dollars, with interest. Samuel P. Freligh.”' Held, that as the instrument sued upon was a promissory note within the statute of this state, it imported a consideration. The statute does not require a note to express value received upon its face.
    2. Same.
    Although the note was, by its terms, payable after death, it was a valid instrument.
    (Follett, Ch. J., and Vann, J., dissent.)
    Appeal from a judgment of the general term of the third judicial department, which affirmed a judgment entered upon a verdict. _
    _ The action was brought to recover upon a written instrument, of which the following is a copy:
    “ Quarryville, September 2, 1871.
    “ Thirty days, after death I promise to pay to Cornelius Carnwright fifteen hundred dollars, with interest.
    “Samuel P. Freligh.”

      The plaintiff gave no evidence of the transaction out of which the instrument arose, and none of the actual consideration thereof, but, having offered testimony tending to prove the genuineness of the maker’s signature, put the note in evidence and rested Ms ease.

      Peter Cantine and John J. Linson, for app’lts; F. L. Westbrook and J. Newton Fiero, for resp’t.

       Affirming 33 N. Y. State Rep., 98.

   Brown, J.

When the plaintiff rested his case, and again at the close of the testimony, the defendant moved to dismiss the complaint upon the ground that no proof had been given that the instrument sued upon had any consideration. These motions were denied and the court instructed the jury that the instrument was a promissory note and imported a consideration, and that the burden rested upon the defendants to show that it was without a consideration.

The exceptions to these rulings present the principal questions argued upon this appeal.

The statute of this state in reference to .promissory notes provides as follows: 1 R S., 768:

Section 1. All notes in writing, made and signed by any person, whereby he shall promise to pay to any other person, or his order, or to the order of any other person, or unto the bearer, any sum of money therein mentioned, shall be due and payable as therein expressed, and shall have the same effect, and be negotiable in like manner, as inland bills of exchange, according to the custom of merchants.

Section 4. The payees and endorsees of every such note payable to them or their order, and the holders of every such note payable to bearer, may maintain actions for the sums of money therein mentioned against the makers and endorsers of the same respectively, in like manner as in cases of inland bills of exchange, and not otherwise.

Our statute is a substantial re-enactment of the statute of Anne (3 and 4 Anne, c. 9), which provided that “ all notes signed by a person promising to pay to another, his, her or their order or to bearer,” should be construed to be by virtue thereof due and payable to any such person to whom the same is made payable, eta

This statute was held by the courts of England to include within its terms a non-negotiable note. Smith v. Kendall, 6 Durnford & East, 123; Burchell v. Slocock, 2 Ld. Raym., 1545; 3 Kent’s Com., 77.

In the case first cited Lord Kenyon said: “A note may be made payable to ‘A’ or bearer, ‘A’ or order, or to ‘A’ only.” Similar decisions were made by the courts of this state under our own statute. Downing v. Backinstoes, 3 Caines, 137; President v. Hurtin, 9 Johns., 217; Kimball v. Huntington, 10 Wend., 675; Hall v. Farmer, 5 Denio, 484.

In Downing v. Backinstoes, a non-negotiable note was declared on as within the statute and the defendant demurred on the ground that the declaration did not allege the transaction and consideration upon which the note was given. The court gave judgment for the plaintiff, saying “the very point was settled in Green v. Long, April term, 1798, in conformity to the adjudications in Westminster hall.”

In President v. Hurtin it was said: “The note set forth is a good promissory note within the statute, though it has not the words bearer or order. This is the established English law and the same rule is recognized by this court,”

In Kimball v. Huntington the action was upon a due bill in this form: “Due Kimball & Kenston, three hundred and twenty-five dollars, payable on demand.” Judge Nelson said: “The instrument is a promissory note within the statute. Neither the acknowledgment of value received or negotiable words are essential to bring it within the statute. See, also, Carver v. Hayes, 47 Me., 257; Franklin v. March, 6 N. H., 364.

No authority is cited in the courts of this state or of England holding that a non-negotiable note is not within the terms of the laws cited, and we are of the opinion that the language of our statute includes a note payable to a person without words of negotiability.

The instrument sued upon being therefore a promissory note within the statute of this state, it follows that it imports a consideration. By the express terms of the statute the sum of money therein mentioned is declared to be “ due and payable as therein expressed.” That it is “ due and payable ” according to its terms is the legal conclusion which the court must draw from the instrument itself. A valid contract is thus declared to exist and of course a consideration must be implied. Hence “ value received” need not appear on the face of the note, as those words express only what the law implies. Hatch v. Trayes, 11 Ad. & Ell., 702 ; Hall v. Farmer, 5 Den., 484.

The effect of laws which make promissory notes negotiable or which authorize actions of debt upon them though non-negotiable, is to take them out of the common law rule which requires that every contract must be shown by the party who sues upon it to be supported by a consideration, and enables the holder to maintain an action thereon without alleging or proving a consideration. In other words, a consideration is implied from the character of the instrument Peasley v. Boatwright, 2 Leigh, 195 ; Hatch v. Trayes, supra.

The English statute was enacted to settle the controversy that prevailed whether under the custom of merchants promissory notes were negotiable.

They were thereby declared to be assignable or endorsable over in the same manner as inland bills of exchange were according^to the custom of merchants, and holders were empowered to maintain actions thereon in the same manner as they might do upon any inland bill of exchange made or drawn arcording to the custom of merchants.

Our statute contains similar provisions.

Promissory notes and inland bills of exchange were by virtue of these laws put upon an equality. They were made negotiable if they contained words of negotiability, but whether negotiable -or not and whether they expressed value received or not, it was no longer necessary in actions thereon to aver and prove consideration.

Such was and is the rule as to inland bills of exchange. 1 Daniel on Negotiable Inst., § 161; Raubitschek v. Blank, 80 N. Y., 479; Averett's Adm'r. v. Booker, 15 Gratt, 163; Wells v. Brigham, 6 Cush., 6.

And the same rule under the statute was made applicable to promissory notes. Townsend v. Derby, 3 Metcalf, 363; Dean v. Carruth, 108 Mass., 242; Bank of Troy v. Topping, 9 Wend., 277; 13 id., 557; Chitty on Bills, 9 Am. Ed., 78-181; Paine v. Noelke, 53 How Pr., 273; Story on Promissory Notes, § 51; 3 Kent’s Com., 77, 78; 1 Parsons on Cont., 6th ed., 249; 1 Parsons on Bills, 193.

The statute does not require a note to express value received upon its face and no definition of such an instrument requires the expression of that fact.

The note sued upon although by its terms payable after the death of the maker was a valid instrument.

A promissory note is defined to be a written engagement by one person to pay absolutely and unconditionally to another person therein named, or to the bearer, a certain sum of money at a specified time, or on demand. Story on Prom. Notes, § 1; Coolidge v. Ruggles, 15 Mass., 387.

It must contain the positive engagement of the maker to pay at a certain definite time and the agreement to pay must not depend on any contingency, but be absolute and at all events.

Tried by this standard the instrument set out in the complaint was a valid promissory note. The fact that it was payable after the death or the maker did not affect its character. 3 Kent’s Com., 76.

It follows from these views that the motion to dismiss the complaint was properly denied, and there was no error in the charge of the court.

The point made by the appellant that the court erred in its charge as to the burden of proof on the question of consideration, assuming that evidence pro and con upon that question was given, was not raised at the trial. The proposition made by the defendant at the close of the judge’s charge, and the only one to which an exception appears in the record, was as follows:

In order that there may be no doubt about our position we ask the court to charge the jury that there has been no evidence given of consideration, and to direct a verdict -for the defendant upon that ground.”

The defendant having thus squarely planted himself on the ground that there was no evidence of consideration, and asked the court to direct a verdict in his favor, cannot now claim that there was evidence for the jury, and that he was entitled to a different instruction from that given.

The defendant’s claim all through the trial was that the note did not import a consideration, and that the plaintiff could not recover without proof of that fact, and his motion to dismiss the complaint and to direct a verdict in his favor, and his exceptions to the charge, all sharply present that question, but he nowhere claimed that he had given evidence which, if believed by the jury, overcame the presumption arising in favor of the note.

This clearly appears from the statement I have quoted.

The exceptions to the admission of evidence present no error, and the judgment should be affirmed. '

All concur, except Follett, Ch. J., and Vann, J., dissenting and Parker, J., not sitting.


author: Follett, Ch. J.

text:
    Jesse Yaw, App’lt, v. The State of New York, Resp’t.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    Canals—Lands taken fob—Limitation of action fob such taking—1 R. S., CHAP. 9, TITLE 9, ART. 3, § 49.
    The year within which a claimant by § 49, art. 3, tit. 9, chap. 9 of 1R. S. is required to file his claim or be forever barred from recovering compensation, does not begin to run, as to lands permanently appropriated, until the quantity has been determined by the officers of the state and its boundary lines described on "maps which they are authorized to make and file, or marked on the ground by monuments in such a manner that the owner had the means of ascertaining the quantity and boundaries of the land to be taken.
    Appeal from an award of the board of claims dismissing the proceedings and awarding nothing for -lands appropriated by the state for the construction of the new Oneida Lake canal, on the ground that right to recover damages is barred by the statute of limitations.

      M. J. Shoecraft, for app’lt; J. W. Hogan, deputy attorney general, for resp’t.
   Follett, Ch. J.

Prior to February 8, 1878, the date of the appointment of the first superintendent of public works, the .board' of canal commissioners had the general care and superintendence of the canals of this state, with power to appropriate, permanently or temporarily, lands necessary for their construction or maintenance. Const. Art. 5, § 3, as amended in 1876; 1 R. S., 220. §§9,16.

The construction of the new Oneida Lake canal was authorized by" chap. 934 of the Laws of 1867, pursuant to which it was after-wards built, and in the course of its construction the state permanently appropriated about eight acres, and temporarily appropriated about twelve acres of the claimant’s land, for which no compensation has been made. On the 30th of January, 1871, the claimant filed his claim for damages, which was tried by the board of canal appraisers, which awarded the claimant nothing, on the ground that the statute of limitations was a bar. Upon an appeal to the canal board a hearing was awarded, which was had before the board of claims, pursuant to chapter 205 of the Laws of 1883, which disallowed the claim and dismissed the proceedings by an order entered May 5, 1886, upon the ground that the claim was barred by the statute of limitations, from which order an appeal to this court was taken.

The record which we are called on to review is a very unsatisfactory one. The statute regulating the practice of the board of claims provides: “ Upon the hearing of all claims before the board, the rule of evidence now prevailing in the courts of record of this state shall be observed, and the practice upon such hearing of cláims and taking appeals from the final order or award made therein shall conform, as near as may be, to the practice now prevailing in the supreme court of this state upon the trial of actions, and upon appeal.” Chap. 205, Laws 1883, § 11, as amended by chap. 60, Laws 1884. Under this statute decisions of the board of claims should be in writing, signed by all or a majority of the commissioners, and separately stating the facts found and the conclusions of law, pursuant to the practice in the supreme court, as prescribed by §§ 1010 and 1022 of the Code of Civil Procedure. Again, the eighth section of chapter 205 of the Laws of 1883 provides: Sec. 8. On the termination of a hearing before the “ board of claims, the commissioners, or any two of them, shall make and assign (sign) the award of the board, which shall contain the names of the persons interested, the names of the attorneys, if any, who appeared for the claimant, or by whom the claim was made, the amount allowed the claimant, if any, and if it be a case where the state seeks to appropriate, or has appropriated lands for public use, a description by metes and bounds of the land appropriated and for which the award is made, and what amount, if any, the board has deducted from the claim for claims of the state against the claimant, or payments, an entry of which shall be made in detail by the clerk of said board in the book kept by him for that purpose, which entry shall be signed by the commissioners making such award.”

The final order or award contains no description of the lands appropriated, nor does it show what facts were deemed to be established by the evidence, nor is it signed by any of the commissioners, and this court is compelled to decide this appeal by an examination of the evidence, which is far from giving a satisfactory account of the proceedings taken by the state, when taken, or how much land the state claims to have appropriated, either permanently or temporarily.

It appears that October 23, 1867, it was resolved by the contracting board to build a new canal on a line laid down on the map theretofore prepared and then exhibited by the state engineer and surveyor, and December 18, 1867, the construction of the canal was let. The lines showing the permanent location of the land taken for its construction were partly established and marked on the ground by stakes in 1868, but this work was not completed until 1870. It does not appear when, if ever, the lines were established on the claimant’s farm. The work of constructing the canal was begun in May, 1868, was continued until October or December of that year, when it was suspended, was recommenced in June, 1874, and continued until January, 1875, when it was suspended for a time, was afterwards resumed, and was in progress at the time of the hearing of this claim by the board of canal appraisers in September, 1877.

We think the year within which the claimant was, by the forty-ninth section of article 3, title 9, chap. 9 of the first part of the Revised Statutes, required to file his claim or be forever barred from recovering compensation, does not begin to run, as to lands permanently appropriated, until the quantity has been determined by the officers of the state and its boundary lines described on maps which they are authorized to make and file, or marked on the ground by monuments in such a manner that the owner had the means of ascertaining the quantity and boundaries of the land to be taken. The case does not show that the state described the lands which it proposed to appropriate, or that it described the boundaries on the ground a year before the claimant filed his claim. As before stated, it appears that the exterior or blue lines were not all established until some time in 1870 ; there is nothing in the evidence warranting the board in inferring that such work was completed before January 30th of that year. As to the land temporarily taken, the statute did not begin to run against the claimant until the state had ceased to use it; for until that time the claimant could not ascertain the extent of his damages, or the length of time which he would be deprived of its use. There is nothing in the case justifying the conclusion that the state had ceased to occupy the lands temporarily taken for more than a year prior to the date of filing the claim; on the contrary, the undisputed evidence is that the work of construction was not completed until long after the claim was filed. The language of the court of appeals, in Corkings v. The State, 99 N. Y., 491, 499, is particularly applicable to this case. It was there said : “ When the state, to a just claim, such as this is found to be, has no better or other defense than the statute of limitations, it should at least, both upon the law and the facts, establish that defense with reasonable clearness and certainty.”

The award should be reversed and a rehearing granted before the board of claims, with costs to abide the event.

All concur.