text:
    GEORGE H. DORR, Appellant, v. MARTIN BARNEY, Respondent.

      Tenancy — pa/rol lease for more than one year — entry undm' — effect of — Notice of termination of tenancy — Failure to remore property from premises — effect of.

    On June 16, 1807, the plaintiff made a verbal lease to the defendant of a house and a brick-yard for one year, with the privilege of four, at defendant’s option. The latter entered into possession and so remained for two years. Reid, that, though the verbal lease was void as to the term of four years, yet by the entry of the defendant and his holding over after the expiration of the first year, it became a lease from year to year, subject to all the conditions of the verbal lease except as to the term.
    In April, 1869, the defendant substantially told the plaintiff that he intended to leave at the end of that year, at which latter time he abandoned the house and removed most of the brick, leaving, however, a portion of them, covered by a shed, which were not removed until some time afterwards, The lease was never surrendered. Reid, that, the fact that he occupied the premises with his brick and shed, after the expiration of the year, enabled the landlord to treat him as a tenant for another year.
    Appeal from a judgment in favor of the defendant entered on the report of a referee.
    The complaint alleges two causes of action, but the only one to which this appeal relates is a claim for the rent of certain real estate occupied by the defendant under a lease from the plaintiff. The facts relating to that cause of action, as found by the referee, are in substance as follows: On the 16th of June, 186T, plaintiff, being then the owner of a house and lot and brick-yard near Clayton, Jefferson county, made a verbal lease of said premises to defendant, for one year, commencing at that date, with the privilege of four years, at the option of the defendant, at the annual rent of seventy-five dollars, payable at the end of each year. The defendant went into possession, under the lease, at or about that date, and it is undisputed that he remained in possession two years, at least. In April, 1869, defendant requested plaintiff to lease the premises to other parties, but plaintiff refused unless defendant would settle with him for the year’s rent and give him a clear receipt, which defendant refused to do, and the defendant, at the time, substantially declared his intention to leave the premises by the end of the second year, but no written or formal notice of his intention to terminate the lease at that time was given by defendant to plaintiff. The premises were divided by a road, the house and some of the land being on one side of the road and the brick-yard on the other. At or prior to the end of the second year, defendant' abandoned the possession of the house and land on one side of the road, also the land used in connection with the brick-yard on the other side; but a portion of certain buildings erected by defendant at the brickyard, and which he had the right to remove, were not taken away till the fall of 18G9, and the brick were not entirely removed till September, 1870. Prior to June, 1869, defendant bargained to sell to one Barker the larger portion of the brick, which portion was not separated from the rest, and defendant informed Barker he desired to vacate the premises by the end of the second year, and Barker thereupon, before the end of that year, saw plaintiff and asked him if he could let the brick that he was buying of the defendant remain on the premises, and plaintiff told him if he, plaintiff, came into possession, it would be all right; and of this, Barker informed defendant. Before the end of the second year, defendant removed all the brick except enough to fill the contract with Barker. Barker did not take as many as he bargained for, but complained of the quality, and for that reason refused to take the whole, and thereupon defendant, after June, 1869, sold what remained and the same were removed, mainly in the fall of 1869, but a few as late as September, 1870. The brick taken by Barker were removed in the summer of 1869 mainly, and the building that remained after June, 1869, was the covering of the brick left for Barker. There was no express acceptance by plaintiff of that portion of the premises abandoned by defendant, but plaintiff directed the tenant on his farm to cut the grass on the premises on the oj>posite side of the road from the brick-yard in the summer of 1869, and after June of that year, and said tenant also cut the grass on said premises in 1870, but without the direction of plaintiff, and the cellar of the house was used by the tenant in 1870, with the knowledge and assent of the plaintiff, for the storage of cheese of plaintiff and tenant. The premises on the other side of the road were fenced out of the pasture of plaintiff’s farm, wheD defendant commenced his occupancy in 1861, and just before tbe expiration of tbe two years, tbe fences were replaced by plaintiff’s tenant, but by defendant’s directions, and thereafter the tenant occupied the whole as part of plaintiff’s pasture with the rest of the pasture, with the knowledge of plaintiff and without objection on his part, out the plaintiff, in his lease to the tenant in January, 1869, did not assume to rent to him the premises leased to defendant. Fifty dollars of the rent was paid in the fall of 1861, and $100 in June, 1869. It does not appear that plaintiff at any time after the expiration of the two years, and payment of the $100, demanded any further rent of defendant till this suit was commenced in September, 1811. The referee decided that the plaintiff was not entitled to recover rent of the brick-yard for the third and fourth years, and that the rent for the first two years has been substantially paid, but he ordered judgment for the plaintiff, on the other cause of action, for thirty-eight dollars and thirty-two cents, and thereupon the defendant, entered a judgment in his favor for costs less that sum, and the plaintiff^ appeals.

      Lem LI. Brown, for the appellant.

      II. E. Morse, for the respondent.
    The defendant having continued in the occupation of the demised premises after the expiration of the first year with the assent of the plaintiff, a valid tenancy, a new agreement for another year was created. (Schuyler v. Leggett, 2 Cow., 660; People v. Ricker, 8 id., 226 ; Lounsbery v. Snyder, 31N. Y., 514; Reeder v. Sayre, 6 Hun, 564-; Webber v. Shermcm, 3 Hilt., 541; Sherwood v. Phillips, 13 "Wend., 419.) Neither party was bound to give any notice to the other in order to terminate the tenancy at the expiration of the second year. The plaintiff could have removed the defendant by summary proceedings without notice if he had remained on the premises; and the defendant lawfully left the premises at the expiration of the second year without being bound to pay any further rent, even if he had not, in April, 1869, given the plaintiff verbal notice of his intention to leave at the1 end of the year. (People ex rel. Qleahill v. Schaclmo, 48 Barb., 551; People v. Goelet, 14 Abb. Pr. [N. S.], 130; Parke v. Castle, 19 How. Pr., 29; cited in 51 N. Y., 316; Smith v. Littlefield,
      id., 540; McAdams’ L. and T., 13; Gibbons v. Dayton, 4 Him, 453.) A distinction is made respecting the necessity of notice where a lease is in writing for the term of one year and thereafter, until one or the other party thereto elects to terminate it. (Pugsley v. Aikm, 11 N. Y., 494.) Assuming that the defendant had no right to determine the tenancy at the end of the second year without written notice, the acts of the parties are ample from which to find a surrender. Any acts which are equivalent to an agreement on the part of the tenant to abandon, and on the part of the landlord to resume, possession of the demised premises amount to a surrender by operation of law. (Talbot v. Whipjple, 14 Allen, 177; Comyn’s L. and T. [2d ed,], 336; Stanley v. Koehler, 1 Hilt., 354; Murry v. Shave, 2 Duer, 183; Taylor’s L. and T., §§ 512-519; LLedgemam, v. Arthur, 1 E. E. S., 147; Bedford v.. Terhwne, 30 N. Y., 462, 463, and cases there cited; Williams v. Lester, 54 Barb., 431; McAdams’ L. and T., 115 ; Pheno v. Popflewell, 12 C. B. [N. S.], 334; Moak’s Yansantvoord [3d ed.], 693.)
   Smith, J.:

The parol lease was not valid for more than one year, by the statute (2 R. S., 135, § 8), but as the defendant entered and held under it for more than a year, it inured as a tenancy from year to year, and it regulated the conditions of the tenancy in all respects except as to the duration of the term. (Schuyler v. Leggett, 2 Cow., 660; People v. Rickert, 8 id., 226; Lounsbery v. Snyder, 31 N. Y., 514; Reeder v. Sayre, 6 Hun, 564.) The defendant was, therefore, a tenant from year to year, and liable to pay the yearly rent specified by the parol lease, so long as he occupied the premises. The principal question is, when did the defendant’s tenancy cease ? That he occupied for two years, is not disputed. If for no longer, his tenancy terminated on the 16th June, 1869. But the referee has found that some of the defendant’s buildings remained on the brick-yard till the fall of 1869, and that some of his brick continued there till September, 1870. So long as the defendant thus continued to occupy even a part of the premises, the tenancy was not terminated, unless there was some agreement, express or implied, between the tenant and his landlord, which had the effect to put an end to the tenancy, notwithstanding the defendant’s continued possession. The referee has not found a surrender. He found that at or prior to the termi nation of the second year, the defendant abandoned the possession of a part of the premises, but he found also that there was no express acceptance by the plaintiff of the part so abandoned, and although lie found certain facts and circumstances relating to the subsequent use by the plaintiff of some, part of the premises abandoned by the defendant, he has not found that there was an implied acceptance.

The permission given by the plaintiff to Barker, as found by the referee, to let the portion of the brick which Barker was buying of the defendant remain on the premises, if he, plaintiff, came into possession, was not, of itself, a termination of the tenancy, even although granted with the knowledge of the defendant, and at his request. Barker was bargaining for but a part of the brick, and that part was not separated from the mass. And even a part of the brick which Barker contracted for, ultimately came back to the defendant’s hands, while on the premises.

No sufficient notice was given by the defendant that he would quit the premises at the end of the second year. True, it is found that in April, 1869, he requested the plaintiff to lease the premises to other parties, and on the plaintiff’s refusing to do so except on conditions with which defendant declined to comply, he substantially declared his intention to leave the premises at the end of the second year; but it is also found that he gave no written or formal notice of his intention to terminate the lease at that time.

But even if the defendant had given explicit and formal notice of his determination not to keep the premises another year, yet as he remained in possession, nevertheless, after the expiration of the year, such continuance in possession, notwithstanding what had taken place, enabled the landlord to treat him as a tenant for another year. The most that can be claimed by the defendant is, that the holding over furnished only presumptive evidence of the continuance of the tenancy, which was sufficiently rebutted by the facts already adverted to. But as there was no surrender or acceptance, the notice of intention to quit, found by the referee, did not repel the presumption of a continuance of the tenancy arising from the fact of the defendant’s remaining in possession. The case of Schuyler v. Smith (51 N. Y., 309) is an authority in point, in support of this •position. So, also, is the case of Conway v. Starkweather (1 Denio, 113) which is approved and followed in the case first cited.

The judgment should be reversed and a new trial had before another referee, costs to abide event.

Talcott, P. J., concurred; Merwin, J., did not sit.

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


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    JOHN WEBSTER, Appellant, v. NATHANIEL A. TURNER and others, Respondents.

      Corporation — sale of property of, and discontinuance of business of — dissolution of — estoppel.

    Tlie plaintiff was a member of a corporation, organized to sell the milk of its stockholders, from its organization, in 1872, till October 21,1874. On the latter day, at a meeting of the stockholders, it was unanimously agreed, the plaintiff voting by proxy, that all the property of the corporation, consisting of milk cans, etc., be sold to oneW., who was to pay them $1,033.50 therefor on condition that they would furnish him milk, as they had promised to do to the corporation, until May 1,1875, and subsequently a resolution was unanimously adopted declaring the corporation dissolved, and from that time it ceased to do business.
    Plaintiff refused to deliver milk to W., and the latter refused to pay him his share of the $1,033.50. This action was commenced by the plaintiff to compel the directors of the corporation to call meetings and carry on business, and account to him for his share of the property.

      Held, that the acts of the corporation constituted a surrender of its corporate rights and it no longer existed.
    That, as the plaintiff refused to deliver the milk to ~W., as required by the agreement, he could not recover from him or the company his share of the property, he having voted by proxy in favor of the resolution.
    Appeal from, a judgment, entered on tbe decision of the court at the Erie Special Term dismissing the complaint herein, with costs.
    The action was brought by the plaintiff to compel the defendant the Erie County Co-operative Milk Association, of which the plaintiff was a member, to continue its corporate business and to compel the other defendants, as directors, to call meetings as required by the by-laws and charter of the corporation, and also for an accounting and the recovery by tbe plaintiff of tbe amount alleged to be due him.
    The facts found by the court are substantially these: Tbe association above named was a corporation organized in April, 1872, under tbe act entitled “An act for tbe incorporation of co-operative and industrial unions,” passed 24th June, 1867, for tbe purpose of selling tbe milk and dairy products of tbe stockholders to tbe citizens of Buffalo, or elsewhere, as might be found most profitable. From tbe time of its organization till 21st October, 1874, tbe association carried on tbe business of selling tbe milk of its stockholders, having its principal office and place of business in Buffalo. Tbe plaintiff was a stockholder from tbe time of its organization. On tbe 21st October, 1874, tbe association owned personal property consisting of milk cans, horses and wagons, etc. On that day, at a meeting of tbe stockholders, a proposition made by George P. Wilkins, one of tbe stockholders, to take all tbe property of tbe association and to pay the sum of $1,033.50 for tbe same, provided tbe stockholders would furnish him milk, as they were then obligated to furnish it to tbe association, till 1st May, 1875, for which be was to pay certain specified prices, was accepted by a unanimous vote of all tbe stockholders present, and those who were absent subsequently concurred in tbe same. Tbe meeting also unanimously adopted a resolution declaring the association dissolved. Tbe plaintiff voted for both propositions by proxy. Tbe sale was made accordingly, tbe price was paid, except as hereinafter stated, and tbe association since that time has done no business and held no meeting. It owed no debts at the time. After tbe sale was consummated tbe plaintiff and one other stockholder refused to furnish milk to Wilkins, as proposed, and Wilkins, for that reason, declined to pay their shares of tbe purchase-price, being tbe sum of twenty-six dollar’s and fifty cents each. The remainder of tbe piu’chase-price was paid as agreed and was distributed among tbe other stockholders, all of whom furnished milk as proposed. Tbe court decided that the complaint should be dismissed on tbe merits, with costs.

      Thomas Qorlett, for tbe appellant.

      Day & Homer, for tbe respondents.
   Smith, J.:

The court, at Special Term, found that the corporation, with iie consent and approval of all its stockholders, including the plaintiff, sold its entire property and effects, with the intent and for the purpose of discontinuing the business of the association; that it then, by resolution, declared itself dissolved; that it has done no business and held no meeting since that time, and that it was not, at that time, owing any debts. According to numerous authorities, these acts, having the effect to destroy the end and object for which the corporation was created, were equivalent to a surrender of its corporate rights. (Slee v. Bloom, 19 Johns., 456; People v. Bank of Hudson, 6 Cow., 217; Briggs v. Penniman, 8 id., 387; Bank of Poughkeepsie v. Ibbotson, 24 Wend., 473; Bradt v. Benedict, 17 N. Y., 93.)

The fact that the resolutions authorizing the sale and declaring the corporation dissolved were adopted by the stockholders, and not by the directors, does not impair their force, as an act of surrender. The directors had no authority to surrender the charter and dissolve the corporation.

The sale of the property of the corporation is found by the court to have been made in good faith. The fact that the purchaser was one of the stockholders and directors of the corporation does not necessarily render the sale void. Although it would be voidable, as to creditors of the corporation, or stockholders not assenting to the sale, it is valid, in the absence of fraud, as to the stockholders who gave their assent. The record shows that the plaintiff voted for it by proxy.

By the terms of the resolution authorizing the sale, the stockholders who voted for it, agreed with the purchaser to deliver milk to him as therein stipulated, as a condition precedent to the obligation of the purchaser to pay the agreed price for the corporate property. The plaintiff having broken his agreement in that respect, has thereby forfeited his right to share in the avails of the sale, and has no claim therefore against the purchaser or the corporation.

The judgment dismissing the complaint should be affirmed, with costs.

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

Judgment affirmed with costs.


text:
    RUFUS B. DREW, Appellant, v. DAVID BUCK, Respondent.

      Evidence of pa/i'ol agreement cotemporaneous with written lease — when admissible— Voluntary lease — validity of.

    In 1852 the defendant leased to his mother certain premises for the term of her natura1 life, no rent being reserved thereby. He continued in possession up to the time of the commencement of this action. In 1867 the mother assigned her lease and claim for use and occupation to the plaintiff, and subsequently, in 1872, she conveyed the premises to the defendant for a valuable consideration, he having no notice of the prior assignment. In an action by the plaintiff to recover for the use and occupation of the land, the defendant was allowed, against the plaintiff’s objection and exception, to testify that at the time of the making of the lease it was agreed that he should remain in possession of the same without paying rent; that his mother was to live with him whenever she wished, and that its object was to provide a permanent and safe homo for her.

      Eeld, that the evidence was properly admitted, as it did not tend to contradict or vary the terms of the lease to his mother, but simply established the terms of the agreement under which he continued in possession under his mother.
    Although an executory agreement to give a lease, not founded upon a valuable consideration, may not be valid, yet a lease duly executed in pursuance thereof is.
    Appeal from a judgment in favor of tlie defendant, entered on tbe report of a referee dismissing tbe complaint, with costs.
    Tbe action was to recover for tbe use' and occupation of real estate. On tbe 1st of September, 1852, tbé defendant, wbo was tbe owner in fee of tbe real estate in question, executed and delivered to bis mother, Esther Buck, a lease of tbe premises for tbe term of her natural life. Tbe consideration expressed was one dollar, and no rent was reserved in tbe lease. Tbe defendant was in possession of tbe premises prior to, and at tbe time of, tbe execution of tbe lease, and be continued in possession to tbe time of tbe commencement of this action, in December, 1873. In 1867, Esther Buck assigned tbe lease and her claim for use ^nd occupation to tbe plaintiff. In 1872, for a valuable consideration, she conveyed tbe premises to tbe defendant, be having no notice of her assignment to tbe plaintiff. Tbe referee found that tbe lease was executed by tbe defendant voluntarily, without consideration, and upon tbe understanding and agreement that be was to remain in tbe possession and have tbe control of tbe premises, tbe same thereafter as before, and without any compensation therefor, but with the understanding that his mother should have the right to live on the premises with him if she wished, and that the lease was made for her safety, so that she might have a home and not be turned out of doors in case of the death of the defendant or his inability to support her on the premises.

      J. W. & II. J. Dininay, for the appellant.

      A. Hadden, for the respondent.
   Smith, J.:

The referee having found upon testimony sufficient, if properly received, to warrant the finding, that the defendant, since the execution of the lease to his mother, has occupied the premises under an agreement with her, that he was not to pay rent, but was to permit her to live with him on the premises if she wished, which privilege she enjoyed, for aught that appears, at all times when she chose, the case was properly disposed of, unless, as the appellant’s counsel contends, the testimony on which such finding is based was not competent evidence. The defendant himself was a witness in his own behalf, and he testified that the agreement referred to was made with his mother by parol, at the time when the written lease was executed. The plaintiff, who claims as the assignee of the defendant’s mother, objected to the evidence in due season, on the ground that it intended to contradict the lease., The decision of the referee overruling the objection presents the principal question in the case. We think the ruling was correct. It was incumbent on the plaintiff to establish two propositions : First, that his assignor, Mrs. Buck, had an estate in the land, and secondly, that the defendant occupied as her tenant under an agreement, express or implied, to pay for the use of the premises. To establish the first proposition, he introduced the written leafee, and it was competent, and prima facie sufficient, to show that the defendant’s mother had a life estate in the premises. But it did not tend, in any manner, to make out that the defendant was her tenant. The only evidence introduced by the plaintiff on that subject was proof of the fact that, subsequently to the execution of tlie life lease, the defendant continued to occupy the premises with the knowledge and permission of the life tenant, from which fact the 'relation of landlord and tenant might be implied. It was, therefore, competent for the defendant to prove any circumstance which tended to repel that implication; not to contradict the lease, which was of no consequence except as proving the estate of the plaintiff’s assignor, but to show the real nature of his holding. The agreement under which the defendant continued in possession was distinct from the lease executed by him, although made at the same time. If the parol agreement had provided that the defendant should continue to occupy notwithstanding the lease, and pay a specified rent to his mother, it would have been competent for thé plaintiff to prove it. We think the testimony was properly received. The letters written by the defendant, undoubtedly tended in some degree to contradict his testimony, but he was corroborated by his brother, Lester W. Buck, and the decision of the referee upon the question of fact raised by the conflicting testimony is conclusive. The plaintiff, as the assignee of Mrs. Buck, took the claim in suit, subject to all the defenses then existing against it.

After tiie testimony of the defendant respecting the parol agreement between himself and his mother was introduced, the plaintiff moved to strike it out, on the ground that the plaintiff’s assignor, Mrs. Buck, was of unsound mind, and therefore, the testimony oi the defendant was inadmissible under section 399 of the Code. The motion was based on certain testimony given by David Buck, a son of Mrs. Buck, called as a witness by the plaintiff after the defendant had rested. The testimony was as follows: I don’t think my mother is competent to be examined as a witness; in my opinion she has been in that condition since she has been in Woodliull; in my opinion she can understand what you tell her, but she don’t remember a few minutes after, what she has been talking about; her incompetency is from her want of recollection and intelligence; I first saw that this spring.” The motion was denied, and we think, properly. The witness, a layman, stated no facts or circumstances from which the referee could judge of the mental condition of Mrs. Buck. Ilis testimony was nothing more than the expression of his opinion upon a purely legal question namely, the competency of Mrs. Buck to be examined as a witness, based upon a general statement to the effect that he had recently noticed in her a lack of recollection and intelligence, which may have been nothing more than the ordinary impairment of the mental faculties, incident to old age. This view of the matter renders it unnecessary to discuss the question whether the statute applies to a person other than one judicially declared to be of unsound mind, and whether the motion to strike out was not too late, the objection not having been taken to the testimony when it was offered and received, no 'opinion is intended to be expressed on these points.

It is insisted by the respondent’s counsel that the dismissal of the complaint may well stand upon the ground that the lease executed by the defendant to his mother was without consideration. We do not assent to that position. It may be that a mere executory and unexecuted agreement to lease, without consideration, would not give a right of action. But in this case, the arrangement which, according to the claim of the defendant, was entered into by the parties, through the lease and the cotemporaneous parol agreement, has been fully executed, and the defendant cannot now be heard to say that the lease was void and conveyed no estate. His real ground of defense is, that by the express terms of his holding he was not to pay rent.

The judgment should be affirmed.

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

Judgment affirmed.


text:
    CAROLINE M. CLARK, Respondent, v. NANCY BRUCE, Executrix, etc., of SETH HARRINGTON, Deceased, Appellant.

      Handwriting — its age — who a/re experts as to.

    In an action upon a promissory note, in which the statute of limitations was set up, the plaintiff relied upon certain partial payments indorsed thereon by her husband. Upon the trial the defendant called a witness who testified that lie had been an attorney for over twenty years; that he had had occasion to examine old and new writings when they were claimed not to be genuine, and that he had examined the notes in suit and the indorsements thereon. The defendant then offered to show that, in the opinion of the witness, judging from the appearance of the writing and ink, the indorsements were written at a more recent date than that which they bore, and that they were all written within the past two years. Held, that the evidence wras properly excluded, as the witness had not shown himself to be an expert on that question.
    To be a judge of the genuineness of handwritings is one thing, to be able to determine its age from its appearance, another.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee.

      Airam Thorn, for tbe appellant.

      Torrcmce <& Allen, for tbe respondent.
    It was not a question of genuineness of a signature, but called for tbe opinion of the witness as to tbe age of tbe indorsement, and such opinion was inadmissible. (SacTcett v. Spencer, 29 Barb., 180,181; The Phoenix Fire Ins. Go. v. Phillips, 13 Wend., 80; 4 Term R., 49; Peake’s Ev. App., 176 ; 5 B. & Aid., 530; People v. Spooner, 1 Den., 343.)
   Smith, J.:

This is an appeal irom a judgment entered on the report of a referee, in favor of tbe plaintiff. The action was brought to recover tbe amount of three promissory notes, alleged to have been made by tbe defendant’s testator. Tbe statute of limitations was pleaded, and tbe plaintiff, to take tbe case out of tbe statute, relied upon certain partial payments which were indorsed on tbe several notes in the handwriting of Philip R. Clark, the plaintiff’s husband. The questions to be considered are presented by certain exceptions taken at the trial upon points of evidence.

The plaintiff was called as a witness in her own behalf, and was asked by her counsel, “ what money, if any, did you receive on that day” (the day of the date of one of the'indorsements). It was objected that the question was immaterial, but the objection was overruled, and the witness answered that she received twenty-five dollars to be indorsed on the notes. It is now argued that the ruling was wrong, for the reason that if the payment was made by any one but the deceased the evidence was immaterial, and if made by him the testimony was inadmissible under section 399 of the Code. But the latter objection was not taken at the trial, and must be regarded as waived, since, if attention had been called to it, possibly it might have' been obviated, as, for instance, by showing that the payment was made by a third person for the deceased and with his authority. That objection, therefore, is not now available; and as the evidence may have related to a payment made by the deceased or his agent, and in that event bore directly upon the issue, the objection on the score of immateriality was properly overruled.

Stephen Lockwood, called as a witness by the defendant, testified that he was, and had been, an attorney for over twenty years; that in his business he had had occasion to examine old and new writings, and to examine when they were claimed not to be genuine, and that he had examined the notes, in suit, and the indorsements on them of 13th June, 1858, and 3d January, 1862. lie was then asked: “In your opinion were the indorsements of June thirteenth, upon those notes, written as long ago as they bear date ? ” lie was also asked: “Are the indorsements of 13th June, 1858, and 3d January, 1862, written with the same pen and ink ? ” The defendant also offered to show by the witness that each of the indorsements, in the opinion of the witness, was written at a more recent time than its date, and that they were all written within two years past, judging from the appearance of the writing and ink. The plaintiff’s counsel objected to the questions and offer, separately, on the-ground, with others, that, the witness was not shown to be competent to give an opinion. The objections were sustained, and the defendant excepted. The questions and'offer called for the opinion of the witness. lie was not asked to state facts, to describe the appearance of the indorsements in any respect, but to give an opinion as to the time when the indorsements were made, based upon the appearance of the writing and the ink. "What was the appearance of the writing and the ink does not appear by the evidence,. We do not think the witness had shown himself to be an expert on that subject. T9 judge of the genuineness of handwriting, that is, to judge whether it was written by the person whose handwriting it purports to be, is one thing; to determine its age from its appearance is quite another. The witness may have had occasion to pass upon the genuineness of many writings, old and new, and yet néver have been called on to form an opinion, from the appearance of handwriting, as to whether or not it was written at the time it bore date. In the present case there was no question as to the genuineness of the indorsements. It was undisputed that they were written by Clark, the plaintiff’s husband. The only question was whether they were written at the times they bore date respectively, and upon that point it was proposed to give the opinion of a witness who was not shown to have any experience upon the subject, an opinion based upon appearances which are not described in the evidence, and which he was not asked to state. We think the objection was properly sustained.

Of the other exceptions taken at the trial, it is necessary to notice only one. Mr. Allen, one of the attorneys for the plaintiff, was called as a witness in behalf of'his client, and testified that he prepared the original claim sworn to by the plaintiffs and made a copy. He was asked what he did with the original. The question was objected to as immaterial and irrelevant. The objection was overruled, and the defendant excepted. The witness then answered that he presented it to the defendant at plaintiff’s request, and asked if she would pay the claim, and she refused, saying the notes were forgeries. The evidence was admissible as tending to show that the demand had been duly presented and its payment was unreasonably resisted or neglected by the defendant; facts which the statute requires to be certified, when proved, by the judge or referee before whom the trial is had, with a view to the proper disposition of the question of costs. (2 R. S., 90, § II; Code of Procedure, § 272.) No specific objection was taken to any part of the witness’ answer

On the whole, we think there was no error at the trial, and that the judgment should be affirmed.

Talcott, P. J., and Merwin, J., concurred.

Judgment affirmed.


author: T ALCOTT, J.:

text:
    PHILIP R. CLARK, Respondent, v. NANCY BRUCE, Executrix, etc., of SETH HARRINGTON, Deceased, Appellant.

      Experts — opinions of.

    The opinions of experts are only admissible, when it appears from the nature of their avocations, or from their testimony concerning their experience, that the matter inquired about involves some degree of science or skill which they have made use of, so that from experience, they can answer the question propounded, with more accuracy than others, who may not have been called upon to employ science or exercise skill on the subject.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      A. Thoi'n, for the appellant.

      0. O. Torrance, for the respondent.
   T ALCOTT, J.:

This is an appeal from a judgment entered for the plaintiff on the report of a referee. The action is upon three promissory notes alleged to have been made by the testator to the plaintiff, one for $500 and one for $490, payable on the 1st days of April and May, 1856, and one payable one day after date, made October 4, 1872. The defense attempted to be made tp the first two notes payable in April and May, 1856, was the statutes of limitations, and the defense to the note of October 4, 1872, was forgery. The plaintiff sought to take the first two notes out of the operation of the statute of limitations by showing various payments of interest upon the paid notes, the last of which was on the first day of July, in the year 1871.

The testimony in the case took a wide range and involved an inquiry as to numerous facts of more or less materiality, bearing upon the questions principally litigated between the parties. The referee reported, in substance, that the testator made the three notes sued on, and that he had paid on each of the notes which were payable in 1856, as follows:

June 13, 1858............................... $15 00
July 3,1862........................................ 10 00
May 22, 1866....................................... 15 00
July 1, 1871................ 10 00

And that nothing had been paid on the note dated October 1, 1872, and reported ordering judgment for the plaintiff for the amount of all the notes, deducting the payments aforesaid.

The counsel for the appellants present twenty-one formal points on this appeal, most of which are objections to the ruling of the referee as to matters within his discretion, such as the permitting of leading questions and allowing questions to be put to witnesses for the plaintiff, after he had once rested, to establish facts which the appellant’s counsel insisted were" a part of the affirmative case of the plaintiff, and allowing witnesses to testify over again to facts which they had already testified to and touching the relevancy of various facts proved by the witnesses, the relevancy of which grew out of the testimony of other witnesses and was more or less remote, and objections to the findings of the referee on the facts. As to the findings on the facts it suffices to say that there was not only evidence in the case to sustain them, but there was a clear and decided preponderance of evidence leading to the conclusions of fact at which the referee arrived. There appears to us to be only ■ two classes of exceptions to which any more specific attention is required. On the examination of the plaintiff’s witness, Caroline M. Clark, she had testified to the payment of ten dollars on each of the two notes payable in 1856, and to the indorsement of such payments by the plaintiff upon the said notes in the presence of the testator. On the cross-examination of the witness the defendant had inquired in reference to the other payments and indorsements, and on such cross-examination she had testified, in response to the inquiries of the defendant, that she also witnessed the payments of June 13, 1858, January 3,1862, and May 22,1866, and the indorsements thereof at the time, in the presence of the testator. At a subsequent period of the trial the defendant called as a witness in his behalf Stephen Lockwood, as an expert, who stated that he was an attorney at law “ and had had occasion to examine old and new writings,” and being shown the indorsements of June 13, 1858, and January 3, 1862, on the two notes, the defendant’s counsel asked him: In your opinion were the indorsements of June 13, 1858, written there upon the notes as long ago as they bear date ? And the question was subsequently varied by asking him whether the indorsements of June 13, 1858, and January 3, 1862, were apparently written at the same time and with the same pen and ink % To the testimony so offered the plaintiff’s counsel objected on various grounds, and the evidence was excluded by the referee, to which exclusion the defendant took exception. The only material question was as to the payment and indorsement of July 1, 1871, and the first answer which occurs in respect to the exception of the defendant excluding the testimony oí Lockwood is, that the testimony concerning the payments and indorsement of 1858 and 1862, being immaterial to the issue, and only affecting the question of the credibility of the witness Caroline M. Clark, the defendant could not be permitted to contradict her in this particular. The defendant had raised the question herself upon her cross-examination, and as to a collateral matter, it was not permissible for her to contradict the testimony of the witness by whom she had proven the indorsement of 1858 and 1862. But besides this, it does not appear that Mr. Lockwood was competent as an expert to answer the questions propounded to him. He says simply, “I have had occasion to examine old and new wilting,” which might be testified to by almost any person, without professing any particular science or skill on the subject. The opinions- of experts are only admissible, when it appears from the nature of their avocations, or from their testimony concerning their experience, that the matter inquired about involves some degree of science or skill which they have made use of, so that from experience they are fitted to answer the question propounded with more accuracy than others, who may not have been called upon to employ science or exercise skill on the subject. It did not appear from the examination of Mr. Lockwood that he had, or could exercise any greater degree of science or skill in the examination of the subject, with a view of giving a correct answer to the question put to him, than any ordinary person. "We think, therefore, that the referee was correct in excluding the questions proposed to Mr. Lockwood, for both the reasons before mentioned. After the defendant had rested her defense the plaintiff was called as a witness, and gave evidence touching transactions which occurred with the testator in his lifetime, which evidence was objected to by the defendant as being transactions and communications with a person deceased, offered in evidence in an action against his executrix. The answer to this objection may be found in the fact that Mrs. Bruce, the defendant and executrix, who was the universal legatee of the testator, had been examined in her own behalf touching such transactions or communications (Dubois v. Baker, 30 N. Y., 355; Howell v. Van Siclen, 6 Hun, 115) and in her testimony had made statements and endeavored to give a coloring to the transactions which, according to the testimony of the plaintiff, was not justified by the facts. So far as we observe, the plaintiff in his examination, which involved any transaction or communication with the testator, was confined closely to those subjects in relation to which Mrs. Bruce had been examined in her own behalf, and this being so, his testimony is expressly excepted from the prohibition of the three hundred and ninety-ninth section of the Code.

The judgment is affirmed.

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

Judgment affirmed.


author: Mdllin, P. J.:

text:
    JACOB SHULER, Respondent, v. AUGUSTUS F. GILLETTE, Appellant.

      Note — alterations in — as to place of payment — materiality of.

    In an action against the indorser, the payee of a promissory note, it appeared that after he had indorsed and delivered the note to the plaintiff, the maker, without the knowledge of defendant, altered it by adding at the end and ‘ before the signature of the maker the words: “At S. B. Gavitt’s Bank, Lyons, N. Y.” Gavitt’s bank was situated in the same.town in which the maker and • payee resided. Held, that the alteration was an immaterial one, and that the defendant was not discharged thereby.
    Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court.
    The action was brought to recover against the defendant as indorser of a promissory note, dated June 15,1875, made by ~W, II. Stout, for $168.50, payable two months from date, to defendant’s order, with interest, at S. B. Gavitt’s bank in Lyons, New York.
    The defendant set up in his answer several defenses, but the one relied upon at the trial was, that he was an accommodation indorser of the note, and that after the making and indorsement of said note it was altered by the maker thereof, without defendant’s knowledge or consent, by adding at the end thereof and before the signature of the maker, the words “ at S. B. Gavitt’s Bank, Lyons, N. Y.”
    The defendant was called and testified as a witness in his own behalf, that when he indorsed said note the words above quoted were not in it, and that he had refused to indorse a bank note for the maker.
    ' The witness on cross-examination testified that he lived in Lyons near Gavitt’s Bank, only a few steps off, and that Stout, the maker, lived a quarter or half a mile from the bank.
    At the close of the proofs the plaintiff’s counsel asked the court to order a verdict for the plaintiff, and a verdict was, accordingly, ordered for the amount of the note and interest.

      D. 8. OJiamberlcdn, for the appellant.
    The insertion of a place of payment in a note after its execution, and without the consent of a party thereto, unless made to fill a blank therein, which, from the terms of the note as executed, appears to have been left unfilled unintentionally, is a material alteration of such instrument, and discharges the non-consenting party from any liability thereon. (ITazro v. Fuller, 24 W end., 374; McIntosh v. Hay don, 1E.& Mood., 362; Woodworth v. The Bh. of IT. America, 19 Johns., 391, 418-422; Mechanics and Farmer! Bh v. Sclmyler, etc., 7 Cow., 337; Bruce v. Westcott, 3 Barb., 374; Pars, on Bills, etc. [ed. 1873], vol. 2, pp. 546, 547; Byles on Bills, 254; Edwards on Bills, etc., 95 [ed. 1857] ; Bex v. Birhet, Russ. & Ryan, 251; Booth v. Powers et dl., 56 N. Y., 30.) Alterations are material when they affect the date, time of payment, place of payment, etc. (Cowen’s Treatise, § 336, and cases cited; 4 Barn. & Aid., 197; 1 Ry. & Mood., 362; Edwards on Bills, 95 [1857].) If a note is drawn payable generally, and the holder or payee or maker inserts a place of payment, so as to make it a part of the contract, the alteration is material; and if done after indorsement, without consent of the indorser, it will discharge the latter. (Edwards on Bills, 502 [1857], and cases cited; Bowe v. Young, 2 Brod. & Bing., 165; ITazro v. Fuller, 24 "Wend., 374; 10 Barn. & Cres., 2; 4 Maulé & Sel., 505 ; Gowie v. IlalsaTl, 4 B. & Aid., 197 [decided before statute] ; Burchfield v. Moore, 3 Ell. & Blackburn’s R., 683 [decided 1854].)

      G. H. Boys, for the respondent.
   Mdllin, P. J.:

The only question upon this appeal is, whether the words added to the note, after its indorsement, was such an alteration as rendered it void.

An alteration of a note in a material part renders it void. (Byles on Bills, 310, and notes.)

"Was the alteration made a material one? If it was not the note was still valid, notwithstanding the alteration.

The Court of Errors, in Woodworth v. The Bank of America (19 Johns., 391), held, that when no particular place of payment is designated in a promissory note, the holder is bound to demand payment of the maker personally, or at his residence, and the indorser contracts only to be answerable, in default of the maker, after such deir and • has been made, and that every alteration of a note by the maker, in respect to the place of payment, or any alteration of the contract of the indorser in a part which may in any event become material, without his approbation, discharges his liability.

In that case the plaintiff in error was indorsee on a promissory note made by one Kane, and indorsed by the plaintiff for the accommodation of the maker. The note, when indorsed, was dated at Albany, but no place of payment was designated; it was delivered, to the maker after indorsement and he, without the knowledge or consent of the indorser, wrote on the margin of it the words, “ payable at the Bank of America,” and signed it with his own name and delivered it to the Bank of America, in renewal of a previous note, made and indorsed by the same parties; but the plaintiff in error did not know that it was to be used to renew another note. Demand of payment was made at the Bank of America and not of the maker at his residence or place of businesss.

The plaintiff had a verdict at the Circuit, and the Court at General Term ordered judgment for the plaintiff upon it. The Court of Errors reversed the judgment, holding that the designation of a place of payment on the margin of the note, without the knowledge and consent of the indorser, after indorsement, was such a material alteration as discharged the indorser.

The case cited left the question open whether the designation of a place in the same town or city where a note or bill was payable, without the consent of the indorser or drawer, was such a material alteration as to discharge such parties. That question was distinctly presented in the case of The Troy City Bank v. Lauman (19 N. Y., 477). The action was brought on two bills of exchange drawn upon the treasurer of the Buffalo and New York City Railroad Company at New York, by an agent of the corporation at Buffalo, and accepted “for and on account of the Buffalo and New York City Railroad Company, payable at Continental Bank, New York; they were indorsed by Lawrence, Roclcafellow & Moore, who resided in different places in Pennsylvania. The drafts were presented for payment at the Continental Bank, in New York, and payment was refused, and notices were addressed to the defendant’s firm and mailed to each of them at their places specified in the indorsement. The plaintiff had a verdict and judgment, which was affirmed at the General Term of the Superior Court of Buffalo, in which the action was brought; and the defendant appealed to the Court of Appeals. That Court affirmed the judgment, holding, that it was not a material alteration of the bill to accept it payable at a designated place in the same city in which it was payable.

The acceptor resided in New York, and the bill not designating any particular place in the city, it was in law payable at the acceptor’s residence or place of business; and the acceptance making it payable at the Continental Bank did not change the place of payment, but merely designated the particular place where payment should be demanded by the holder.

This case was followed by this court in Niagara District Bank v. Fairman, etc., Tool Manufacturing Company (31 Barb., 403). See, also, Rowe y. Young (2 Brod. & Bing., 165); Walker v. Bank of the State of New York (13 Barb., 636).

This liability of an acceptor after acceptance, is precisely the same as that of the maker of a note. (Opinion of the chancellor in Woodworth v. Bank of America, supra.) The alteration that discharges the one will discharge the other.

The alteration in this case is substantially the same as that made in the case in the nineteenth New York (supra;); and the ruling in that case must be followed.

The judgment must be affirmed.

Present — Mullin, P. J.. and Talcott, J. ; Smith, J., no*, sitting.

Judgment affirmed.


author: Mulijn, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error, v. GEORGE D. LORD, Plaintiff in Error.

      Statute of limitations in criminal cases — how construed — chap. 630 of 1873 —not retroactive.

    A statute limiting the time within which indictments must he found, is an act of grace and favor on the part of the Slate which is to he liberally construed, when construction is required, in favor of the criminal.
    Chapter 630 of 1873 amending the section of the Revised Statutes, requiring all indictments to he found and filed within three years after the commission of the offense, by extending the time to five years, does not apply to offenses committed prior to the passage thereof.
    Certiorari to the Erie Oyer and Terminer to review proceedings of that court on the trial of Lord, for having, as a member of the assembly of this State, in the year 1871, received value for aiding in procuring the passage of a law by the legislature, authorizing the canal commissioners to allow to one John Hand additional compensation for work done by him under contracts with the State, in violation of the provisions of chapter 742 of the Laws of 1869, entitled an act for the more effectual suppression and punishment of bribery.
    The evidence on the part of the people tended to prove that at the general election, held in the county of IMonroe in November, 1870, Lord was elected a member of the assembly for said county, took the oath of office, and on the first Tuesday in January, 1871, entered on the duties of said office. In June, 1868, one John Hand, entered into a contract with the people to do a certain work on the Erie canal, for certain prices in said contract specified, and in June, 1869, he entered into two other contracts with the people to do other work on said canal. Hand performed the work, but claimed the price agreed to be paid therefor was not a fair and adequate compensation for the work done. In order to get additional compensation, it became necessary, to procure the passage by the legislature of an act authorizing the canal commissioners to inquire whether the compensation, agreed to be paid for the work done by said Hand under said contracts, was an adequate one, and if found not to be, then authorizing the commissioners to allow and pay to said Hand such additional compensation as should be just.
    A bill to procure such additional compensation was introduced into the assembly while Lord was a member thereof, and passed Jiat body and the senate, and became a law on the 19th of April, 1871, and is chapter 585 of the Laws of that year. It gave the canal commissioners the authority to make such additional allowance to Hand as they should deem reasonable, not exceeding forty cents per yard. The commissioners made an investigation as to the propriety of allowing Hand further compensation, and additional compensation was allowed and paid. Before the passage of said last-mentioned act, and with the view to secure the aid of Lord in securing the passage thereof, an agreement was made between Lord and one Bennett, representing said Hand, that in consideration that Lord would aid in passing said bill, Bennett should pay to him (Lord) two-thirds of whatever extra compensation should be allowed Hand by the canal commissioners.
    In pursuance of this agreement, and in consideration of this promise of said Bennett, said Lord did, as member of the assembly, aid in procuring the passage of said bill in violation of his duty as a member of the assembly. When the offense was committed the law required the indictment for it to be found and filed in the proper county, within three years after the commission of the offense. (3 B. S. [5th ed.], 1017, § 37.)
    On the 28th of May, 1873 (chap. 630), the last-mentioned statute was amended, by extending the time for finding and filing bills of indictment for offenses, other than murder, five years.
    The indictment charged that the offense was committed on the 1st of February, 1871, and it was found and filed on the 20th of September, 1875.
    • The defendant’s counsel on the trial asked the court to direct a verdict of acquittal, on the ground that the act specifying the time within which a bill of indictment should be found and filed at the time the offense was committed, was repealed by the act of May, 1873, and that the last mentioned act, extending the time for finding a bill of indictment, could not be construed to apply to an offense committed before the passage of ¡<aid amended act.

      The court refused to direct a verdict of acquittal, or to discharge the prisoner, but held, that the indictment being found within five years subsequent to the commission of the offense was ralid, and to this defendant’s counsel duly excepted.
    The jury found the defendant guilty, as charged in the indictment.

      JDa/niel If. Lockwood, district attorney, and James M. Humphrey, for the defendant in error.
    An ex post facto law is one which makes an act punishable as a crime that was innocent when committed, or increases the punishment or changes the rules of evidence required to establish the commission of the crime. (Bishop on Statutory Crimes, § 266; Galder v. Bull, 3 Dallas, 386, 390; Watson v. Mercer, 8 Peters, 88,110.) The statute under consideration neither creates an offense, increases its punishment nor changes the evidence required to establish its commission. It relates only to the remedial policy of the State as to the manner in which its officers may proceed to punish criminals. It declares that for certain crimes the indictment shall be presented, etc., within five years: It makes no provision as to what shall constitute the crimes or be the evidence of them, but simply relates to the remedy or modes of punishment. The acts constituting the crimes and their proof and punishment were already declared by the statute and common laws, and this act simply says the State will not present indictments therefor after five years from the commission. It relates to something to be done in the future, the steps to punish criminals thereafter to be taken. This is not, in ally legal sense of the term, retrospective, and it is not necessary that it should be to authorize the indictment of persons guilty of crimes within five years previous to its passage. The crime had been committed and this act simply declares within what time it may be punished by indictment. The statute, as amended, from that date became the only law limiting the time for presenting indictments for the class of crimes of which the defendant was charged, and is without any words of qualification or limitation, general in its terms, and necessarily applies to crimes committed in the past as well as the future, unless it be held that no persons guilty of crimes belonging to that class and committed before the passage of the amendatory act could be indicted, thus by law giving impunity by legislative pardon to all crimes of that class committed previous to that date. Nothing short of the most positive and unequivocal language could warrant a construction fraught with such consequences. The general rule that statutes are held not to have a retrospective operation relate to civil affairs and rights of individuals, and not to the remedy and mode of punishing crimes. Yet even here it is settled by authority, beyond question, that the legislature has the power to pass retrospective laws, even to the extent of disturbing vested rights in certain cases. But there can be no such thing as vested rights as applied to the criminal law or its administration. That a criminal can have a vested right not to be punished for his crimes is an absurdity. No man can have a vested right to do wrong

      W, F. Cogswell and A. P. Lcmmg, for the plaintiff in error-
    The court erred in refusing to direct an acquittal on the ground that the statute of limitations had barred the prosecution. The act of 1860 being the one that was in force when tne offense is alleged to have been committed, is the one that regulates the time within which an indictment must be found, and the act of 18Y3 has no application to such offense. This proposition divides itself into two subdivisions, the one of construction the other of power ; that the act of 18Y3 is not, as a matter of construction, applicable to any offenses committed before its passage; that if it is, then it is ex post facto and void. As to the first see Sanford v Bermett (24 N. Y.„ 20), Bash v. Van Kleeck (Y Johns., 4YY), TilVma/n v. La/nsing (4 id., 45), Helmore v. Shuter et dl., sometimes reported as Gilmore v. Shuter (4 Burr., 2560; 2 Shower, 1Y; 2 Mod., 310; 1 Tent, 330), Carroll v. Ca/rroll (16 How. [U. S.], 2Y5), Ely v. Holton (15 N. Y., 595),Peoples. Carnal (2 Seld., 463), Wood v. Oatley (11 Paige, 400), Prince v. United States (2 Grallison, 204), Santford v. Bennett (24 N. P., 20), Watkins v. Haight (18 Johns., 138), Stone v. Floioer (41 N. Y., 566), Boyd v. Banrrvnger (23 Miss., 269), Garrett v. Bea/u,mont (24 id., 3YY), Moore v. Bobbins (26 id., 304), Mwrrrnj v. Gibson (15 How. [H. S.], 421), Cal/oert v. Lowell (5 English [Ark.], 14Y), Couch v. McKee (1 id., 484), Scarborough v. Bugcm (10 California, 305), Ridgley v. Steamboat Reindeer (22 Miss., 442), Thompson v. Alexander (11 111., 54), Hull v. Miner
      (2 Root [Com.], 223), Williamson v. Field (2 Sandf. Ch., 533), Dedin v. Da/üison (2 Barb. Ch., 477), CaZIcms v. CauUoms, (3 Barb., 305). If we are wrong as to the question of construction, is not the act within the prohibition of the Constitution that no State shall pass any bill of attainder or ex post facto law % (Art. 1, § 6 ; sub. 1, § 10, art. 1.) It was within the power of the legislature to limit the time within which a presentment or indictment might be made by. the grand jury, because in that respect its powers were not restricted by the Constitution. And when so limited by the legislature it became a vested right to all persons who might be subjected to the laws of the State, as much as the constitutional right requiring .such presentment or indictment for offenses before trial. It will hardly be claimed that if the Constitution had been changed and this provision abrogated after the commission of the offense that any proceedings for trial or punishment could be taken therefor because of the right guaranteed by the Constitution. How, then, can the time within which such proceeding by presentment or indictment can be taken, be extended after the commission of such offense, without equally violating the vested right of the accused. It was as much his constitutional right to have such presentment or indictment within three years from the time of the alleged commission of the offense, as to have such presentment or indictment before trial therefor, and his rights are as much affected by the abrogation of thq one as by the extension of the other. Again, to apply the extension of time within which a presentment or indictment may be found to this case, renders the statute creating such extension obnoxious to the provision of the Constitution of the United States which prohibits the State from passing any ex post facto law. If it is held that the amended statute applies to offenses charged to have been committed before its passage, it is clearly ex post facto in its'application. There is no analogy between the limitation of civil actions, and the limitation of time within which indictments must be found for alleged offenses. The former is a mere remedy to enforce a right which may be changed, extended or 'abrogated. The latter is a proceeding on the part of the sovereign for the punishment of an offense in such manner as best to protect the liberty of the person and shield him from undue prosecution and jeopardy. He is exempted from the expense, the annoyance and the hazard of trial, until bis case bas been investigated and presented by tbe grand jury, by tbe Constitution. For tbe same reasons, and to enable bim to meet tbe allegations while tbe facts are witbin tbe recollection of witnesses and they are accessible, tbe Legislature limited tbe time witbin wbicb be was subjected to investigation to three years. It bad no power to change that limit to bis prejudice so as to subject bim to inquiry as to bis conduct prior to its enactment without violating bis rights by tbe existing law. It increased and extended bis liability to indictment to trial and to punishment, and it was therefore void if held'to be applicable.
   Mulijn, P. J.:

Being of tbe opinion that tbe act of 1873, extending tbe time witbin wbicb indictments might be found from three to five years, does not apply to tbe case before us, we have not considered tbe other questions discussed by counsel on tbe arguments.

Tbe general rule for tbe construction of statutes is, that they are to be held to apply to cases arising after their passage, and not to cases arising before, unless tbe intention to give them a retroactive effect is clearly manifested in tbe acts themselves, or is necessarily to be inferred from them. (Potter’s Dwarris on Statutes, 163, and notes; Dash v. Van Kleeck, 7 Johns., 477; 1 Kent’s Com., 445, and cases cited in tbe notes.)

A statute limiting the time witbin wbicb indictments nrast be found, is a surrender by tbe State of its right to try and punish criminal offenses at its discretion, without limit as to time. It is, therefore, an act of grace and favor wbicb is to be liberally constraed, when construction is required, in favor of tbe criminal; and if tbe law in question applied to civil cases, it would be held to apply to future cases, and not to those arising before its passage.

The same construction should be given to it in a criminal case. In tbe case of Murray v. Gibson (15 How. [U. S.], 421), tbe plaintiff in 1844, recovered a judgment in an action of debt, in one of tbe State courts of Louisiana, against the defendant, who was at that time and subsequently, a resident of tbe State of Mississippi. A suit was brought upon it in tbe latter State, and tbe defendant pleaded in bar an act of tbe legislature of Mississippi, limiting tbe time to bring actions on judgments recovered in other States against citizens of Mississippi, to three years, from the rendition of the judgment. The plaintiff demurred to this plea, and the judges of the Circuit disagreeing, the case was certified to the Supreme Court of the United ■States. That court held that the statutes did not apply to judgments recovered before its passage. Daniels, J., who delivered the' opinion of the court, says: “As a general rule for the interpretation of statutes, it may be laid down that they never should be allowed a retroactive operation where this is not required by express command, or by necessary and unavoidable implication. Without such command or implication they speak and operate* upon the future only. Especially should this rule of interpretation prevail where the effect and operation of a law are designed, apart from the intrinsic merits of the rights of parties, to restrict the assertion of those rights.”

The reason why a statute limiting the time for finding indictments should be liberally construed and held to apply to cases arising after its passage, and not to those arising before that time, are very clearly stated by Wharton in his work on criminal law. (Yol, 1, § 444, a.) He says a mistake is sometimes made in applying to statutes of limitation in criminal suits, the construction that has been given to statutes of limitation in civil suits.

The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. In the construction of the statute, therefore, there is no intendment to be made in favor of either parties. Neither grants the right to the other, and there is, therefore, no question as against whom the ordinary presumptions of constructions are to be made.

But it is otherwise when a statute of limitation is granted by the State. Here the State is the grantor surrendering, by act of grace, its right to prosecute, and ordering the offense to be no longer the subject of prosecution.

The statute is not a process to be strictly and grudgingly applied, but an amity, declaring that after a certain time oblivion shall be cast over the offense, and that the offender shall be at liberty to return to his country, and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is, that statutes of limitation are to be liberally construed in favor of def' ndants, not only because such liberality of construction belongs tc all acts of amity and grace, but because the very existence of the st tute, is a recognition and notification by the legislature of the fa t that time, while it'gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt. The conviction must be reversed and the prisoner discharged.

Talcott, J., concurred in result.

Smith, J., dissented.

Conviction reversed and prisoner discharged.


author: Merwin, J.:

text:
    OLIVER EVANS, by AUSTIN R. EVANS, his Guardian, Appellant, v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY, Respondent.

      Employe — haza/rds incident to his duties — minority — how it affects the question of

    An employe who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge, and also the risks and perils incident to the use of the machinery and property of the employer as they were at the time of the employment, so far as such risks were apparent.
    Where, in an action brought by an employe to recover damages for injuries sustained by him under such circumstances, while discharging the duties of his office, it appears that he was of sufficient age and intelligence to understand fully the duties of his employment, as well as its dangers, the question as to the liability of his employer is not affected by the fact that he is a minor.
    Motion by plaintiff for a new trial, upon exceptions ordered to be heard in the first instance at General Term after a nonsuit directed at the Circuit. The case was tried at Chautauqua Circuit in January, 1876, and a nonsuit ordered.
    The plaintiff was a bralceman in the employ of defendant, and the action is to recover damages for personal injuries happening on the 12th May, 1873, and resulting in the loss of his arm. He was then about nineteen years old and had been in such employment upon freight trains of the defendant for about two months. On the evening of that day, between eight and nine o’clock, at the village of Dunkirk, the train to which plaintiff was attached started to get for the train, other freight cars that were on a branch. The plaintiff, at the direction of the conductor, under whose authority he was, got upon the engine with the conductor, the latter telling him, as plaintiff testifies, “ that as soon as he got by Center street, when we got the signal from the hind end, he would cut in two, and him and I would go and get the cars.” The engineer and fireman were also on the engine. The train was a long one, about twenty-five cars. After they got to Center street, plaintiff, as he says, thought the train was broken in two by the way they were running, and looked out to see if the caboose on the rear end of the train was coming. For that purpose he leaned out about two feet at the gangway between the cab and the tender, and as he did so, was struck by the target on the post of the switch just beyond Center street, and knocked off on to some railroad iron which lay by the track near the post, and his arm was run over.
    The night was dark and cloudy and the train going at the rate of about eight miles an hour, and the track there to the rear end of the train was straight. They were not intending to use the switch at this target. The target was arrow-shaped, had a light on it, and when the switch was not in use it was at right angles to the track and the end of the target about ten inches from the side of the engine.
    It does not appear to have been the duty of the plaintiff to look out for the rear end of the train or for the signals there, and his position ordinarily was upon the top of the train.
    The plaintiff, in the course of his employment, was familiar with this switch; had passed it, and often seen it worked, and was then looking out for it, and supposed they had passed it, having mistaken some colored lights in a drug store near Center street, and which they had passed, for the light on the post. As he says, he looked to see if he could see it, to see if there was any thing in the way, saw a light he thought was that, then leaned out and was struck. -He was not directed by the conductor to look out. The engine and tender were to cut loose when they got the train started enough so that they thought it would ran over the crossing at Center street, The target had not been changed during the employment of plaintiff.
    At the close of plaintiff’s case the defendant moved for a nonsuit on the ground that no negligence of defendant was shown; that plaintiff was himself negligent, and that plaintiff was familiar with the fact that made the place in question a dangerous one, and therefore assumed the risk in his employment.
    The motion was granted on the last ground.

      Le Roy Andrus, for the plaintiff.

      A. P. Lanmg, for the defendant.
   Merwin, J.:

The claim of negligence against the defendant in this case, is based on the fact that the target on the switch post was located in such a position that it became dangerous, and that by means of this the plaintiff was injured. This target had not been changed during plaintiff’s employment and plaintiff had become familiar with its position, had often passed it and had seen it used frequently. The question, therefore, arises, whether the danger arising from this was one of the dangers assumed by plaintiff, as incident to his employment.

In Gibson v. Erie Railway Company (63 N. Y., 449) the plaintiff’s intestate was freight conductor in defendant’s employ. As the train started he caught hold of a passing car and began to climb up to the top by the ladder at the side, and was struck by the projecting roof of the depot and killed. The roof was two feet nine inches from the top of the car. The roof had been the same for twenty years and deceased had been in the defendant’s employ for seven years, and over the road daily. His usual place between stations was in the, caboose, and there was no evidence that it was a part of his duty as conductor to get on top of the cars, or that his doing so at the time of the accident had any necessary connection with his duties. It was held that the risk from the roof was assumed by the deceased when he entered the employment of defendant, he being familiar with the place, and the peculiar character of the roof being as patent to him as to any of defendant’s officers; also, that there was contributory negligence, it not appearing that what deceased did had any neces sary connection with his duties as conductor.

The case at bar is quite analogous to the Gibson case, and I think controlled by it. Here the plaintiff was familiar with the target, the danger, if any, was patent, the plaintiff had seen the switch used, passed it daily, its dangerous character seems to have been in his mind at the time, and he thought he had passed it. " He mistook other lights for the one on the target, and then leaned out and the injury happened. It is suggested by plaintiff’s counsel that actual knowledge of the dangerous character of the target'was not shown in plaintiff. If by actual knowledge is meant experimental knowledge, that is not shown. Nor was it in the Gibson case. Plaintiff, however, must have known of the nearness of the target to the track or cars. The rule is, that an employe who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge, and also the risks and perils incident to the use of the machinery and property of the employer as it was at the time of the employment, so far as such risks were apparent. (Gibson Case,supra; Owen v. N. Y. C. R. R. Co., 1 Lansing, 108; "Wharton on Negligence, § 211.)

"Within this rule the nonsuit was properly granted.

It is further claimed by plaintiff that the minority of plaintiff is an element in his favor distinguishing this from the general rule. There is no dispute but that plaintiff was of sufficient age and intelligence to understand fully the duties of his employment, as well as its dangers. That being so, his minority does not affect the question. (King v. The Boston and W. R. R., 9 Gush., 112; Coombs v. New Bedford Cordage Co., 102 Mass., 572, 585; Whart., § 216.)

The motion for new trial should be denied and judgment ordered for defendant on the nonsuit. So ordered.

Present — Talcott, P. J"., Smith and Meewin, JJ.

Motion for new trial denied, and judgment ordered for defendant on nonsuit.


author: Smith, J.

text:
    GEORGE W. CRANNELL, Appellant, v. EDWIN D. COMSTOCK, Respondent.

      Jurisdiction of County Court — to retry cause on appeal from Justices Court— where the amount involved in the Justice’s Court exceeded its jurisdiction — the appeal not having been taken upon questions of lorn.

    Appeal from an order of the Oneida County Court granting a motion made by defendant, on a case containing exceptions, to set aside a verdict in favor of the plaintiff and for a new trial. The action was commenced in a Justice’s Court, where a judgment was rendered upon a verdict in favor of the defendant, and the plaintiff appealed to the County Court. In the Justice’s Court the plaintiff’s complaint was for work and materials, and the.amount claimed by him was $115.50. The defendant pleaded a set-off for goods sold and delivered to the plaintiff to the value of $3,000, for which sum ho claimed judgment. Doth parties introduced evidence before the justice in support of their respective claims, and the jury rendered a verdict in favor of the defendant for forty-three dollars and sixty-.five cents. The notice of appeal to the County Court alleged, as grounds of appeal, that the jury erred in not rendering a verdict in favor of the plaintiff; that the verdict and judgment were unsupported by the evidence, and that on the whole evidence the defendant was not entitled to a verdict. A new trial was had in the County Court on appeal, where the plaintiff recovered a verdict for forty-five dollars, which that court, on motion, set aside. The appeal papers did not show on what ground the County Court set aside the verdict.

      The court at General Term said: “ The respondent’s counsel contends that neither the Justice’s Court nor the County Court had jurisdiction of this action because the sum total of the accounts of both parties exceeded $400. If the County Court had not jurisdiction, that part of the order appealed from which grants a new trial is erroneous and should be reversed. But we think that court had jurisdiction on the appeal to try the cause and render judgment, although it may have appeared on the trial in that court that the sum total of the accounts proved exceeded $400. The County Court had nothing to do with the question whether the justice erred in holding that he had jurisdiction. , The appeal was not taken upon questions of law. It did not bring up the testimony taken before the justice, and the County Court had no means of determining whether the accounts proved before the justice exceeded $400; The appeal brought up the issues of fact joined in the court below to be tried anew in the appellate court, and the jurisdiction of the appellate court' for all the purposes of the trial and judgment was the same as if the action had been commenced in that court originally.”

      H. O. Jones, for the appellant.

      LvncLsley <& Duwmwe, for the respondent.
   Opinion by

Smith, J.

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

Order of County Court affirmed.


text:
    WILLIAM MACOMBER, by guardian, Respondent, v. THE BANK OF BATAVIA and others, Appellants.

      Devise to mother of use and income of property for life, to he used for support of mother and son — Interest of mother not alienable or subject to levy. ■

    Appeal from an order of the Special Term in Erie county, denying amotion made by the defendants, the judgment creditors of Maritta M. Macomber, and by the sheriff of Genesee county, to dissolve an injunction granted herein by the county judge of Genesee county, restraining such creditors and sheriff from enforcing the collection of certain judgments recovered against said Maritta out of certain real and personal property described in tbe complaint, in her possession and under ber control. Tbe motion was founded upon tbo papers upon wbicb tbe injunction was granted.
    Tbe injunction was ordered on tbe ground that tbe real and personal property aforesaid was held by tbe said Maritta as trustee of tbe plaintiff, and that she bad no leviable interest therein. Tbe question as to tbe nature of ber interest in tbe property depends upon tbe construction of certain provisions of tbe last will and testament of William Macomber, who died in December, 1861, leaving tbe said Maritta bis widow, and tbe plaintiff, bis son, then an infant aged about three years.
    Tbe provisions of tbe will, upon tbe construction of wbicb tbe solution of tbe question above stated depends, are in tbe following words: “ Article 3d. I will and give and bequeath unto my beloved wife, Maritta M. Macomber, tbe use, improvements and income of one hundred and fourteen acres of land, with all tbe appurtenances, and all tbe use and income of tbe same, and all household furniture, and tbe use of all farming utensils, and three horses, four cows, fifty sheep, twenty swine, and six bead of young cattle; tbe said one hundred and fourteen acres of land being my old farm or home- • stead, to wit ” (describing it). “ In consideration of my beloved wife, Maritta M. Macomber, receiving tbe use and income of tbe above one hundred and fourteen acres of land, with tbe appurtenances thereto, in full, for ber dower, and for tbe support of herself and my son and ber son, William Macomber, now over three years old, and for bis education and benefit in sickness and in health, till twenty-one years old, if be should live to tbe age of twenty-one, wbicb will be a. d. 1878 — born November 4, 1857; and the above real and personal property to remain in full for tbe control of my wife, Maritta M. Macomber, ber lifetime, and for her benefit, and my son and ber son, William Macomber, as above.” “ In case my beloved wife should not live till tbe said William Macomber is of age, or twenty-one years old, then my executor this my last will shall have all tbe control of tbe above real and personal property for tbe benefit of my son, William Macomber, till of age, or twenty-one years old. Tbe use of tbe above real and personal property is for tbe use and benefit of my wife in lieu of all dower, and at ber death, will and give and bequeath all the real and personal property aforesaid to my son and her son, William Macomber, if living.”
    “ The intent of this third article is that my wife, Maritta M. Macomber, have the use and benefit of all the above real and personal property for herself and my son and her son, William Macomber, and after his mother’s death to be the only heir to all property named in this third article.”

      “ In case he should not live or survive his mother, Maritta M. Macomber, then to be divided equally among all my legal heirs after her death, and the said real and personal property to be put in the possession of my wife, Maritta M. Macomber, clear from all incumbrance; and at the death of my wife, Maritta M. Macomber, to remain clear as then.”
    The court at General Term said: “ The intent to be gathered from these provisions is, as we think, to give to the widow merely the use and income of the property, real and personal, during her life. Out of it she is entitled to her own support, and she is required to apply it to the support, education and benefit of her son, the plaintiff. To the extent- of the beneficial interest of the plaintiff, she takes the use and income of the property in trust, and her term is inalienable during the minority of the plaintiff. The trust is for a va) id purpose (1 R. S., 128, § 55, subd. 3), and as it is not to continue beyond the life of the widow, it does not work an illegal suspension. The gift to the widow is limited in express terms to the use of the property. The rule of law that a devise of the interest or of the rents cmd profits is a devise of the thing itself, out of which that interest or those rents and profits may issue, is subject to limitations. Where, as in this case, the intention of the testator to give onT/y the use is clear, manifest and undisputed, the rule must yield to the stronger force of the intention. (Patterson v. JElUs, 11 Wend., 298.) The plaintiff has a vested interest. In addition to his beneficial interest in the trust, he is vested with the fee of the real estate and the ownershi]3 of the personal property,'subject to the right of his mother to the use of the same, during her life, for the purposes aforesaid, and subject to being divested by the happening of his death diming the lifetime of his mother. We are of the opinion that the widow has no alienable or leviable interest in the property disposed of by the will.”

      M. H. Peck, for tlie appellants.

      Geo. Bowen, for the respondents.
   Opinion by

Smith, J.

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

Order of Special Term affirmed, witb ten dollars costs and dis bursements.


author: Merwin, J.

text:
    SAMUEL G. BEACH, Respondent, v. JACOB SKILLMAN, Impleaded with JOHN HAY, Appellant.

      Motion for new trial on minutes in County Court.

    Appeal from a judgment entered upon a verdict for plaintiff in tbe Monroe County Court, and from, an order denying a motion for a new trial on tbe minutes. >
    Tbe case originated in a Justice’s Court, being appealed by defendant and be demanding a new trial. After verdict in tbe County Court tbe defendant moved for a new trial upon tbe minutes, wbicb was denied. A case witb exceptions was tben made, but no further motion for new trial.
    Upon tbe case coming on at tbe General Term it was insisted that tbe appeal should be dismissed for tbe reason that no motion for a new trial upon tbe case and exceptions bad been made.
    "With reference to this tbe court at General Term said“ Tbe respondent claims tbe appeal should be dismissed and tbe judgment affirmed, for tbe reason that no motion was made in tbe County Court for a new trial upon a case and exceptions ; that such motion on tbe minutes was not enough. In none of tbe cases cited by respondent {Dahash v. Flanders, 2 N. Y. S. C. [T. & C.], 445 ; Lester v. P. P. Co., id., 672; Mu/rrayv. Yamdeveer, 6 Hun, 302; TallmamY. Express Co., 6 id., 377; Quin v. Weed, 5 id., 350 ; Shear v. Yam Dyke, 4 N. Y. ~W. Dig., 348) does it appear that a motion for a new trial was made on tbe minutes, so that tbe operation of such a motion was not considered. In some of tbe cases it is said tbe bill of exceptions must be first considered by tbe County Court; in others that a motion for a new trial must be first made there. By section 366 of the Code (sub. 6) motions for new trials on tbe minutes are author ized in cases like tbe present, and'the practice is assimilated to that in the Supreme Court. The appeal was from the order, as well as the judgment. The County Court has passed upon the exceptions, the same as if incorporated in a case. I think the appeal should not be dismissed.”

      J. É. Roe, for the appellant.

      J. M. Dunning, for the respondent. i
   Opinion by

Merwin, J.

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

Judgment and order affirmed, without .prejudice to motion in court below to make judgment conform to verdict.


author: Bocees, J.:

text:
    WILLIAM W. RIDER, Appellant, v. DAVID VROOMAN, JOHN H. BAGLEY, Jr., and others, Respondents.

      Mortgage foreclosure — Beceiver of rents and profits — to wJiat rents, etc., Tie is entitled.

    Where, in an action to foreclose a mortgage, a receiver of the rents and profits is appointed, on the application of the plaintiff, such receiver acquires no title to such rents and profits until the date of his appointment, and then only to such as remain unpaid at that date to the owner of the equity of redemption or the party by whom he is represented, e. g., his assignee in bankruptcy.
    Appeal from an order made at a Special Term, denying the motion of the plaintiff that the defendant “John H. Bagley, Jr., pay or deliver over to James T. Olwell, receiver appointed herein, the rents and securities collected and received by himself or his agent or agents, of - Nichols & Pennoyer, or either of them, for rent of the premises described in the complaint as the dock property, or the equivalent of such rent or securities in money.”
    This action was brought by the plaintiff to foreclose two mort gages held by him against the defendants, David Vrooman and wife The allegations in the complaint are the usual and ordinary allegations in a foreclosure complaint, except that in addition thereto it alleged that the mortgaged premises were insufficient to' pay his mortgages after the prior valid liens thereon were paid; that David Yrooman and all persons personally liable for the mortgage debt were insolvent, and that the plaintiff had not adequate security for his debt. That David Yrooman had, about six months previous, been adjudicated a bankrupt under the laws of the United States, and that the defendant, John IT. Bagley, Jr., was' his assignee in bankruptcy, and as such assignee, and by virtue of an assignment in bankruptcy to him, he was invested with all the mortgaged premises and the equity of redemption thereof. ’That the defendants, Nichols & Pennoyer, are in possession of the premises described in the mortgage, under a lease to them by Yrooman at $1,000 per annum, payable quarter yearly.
    After the usual demands the complaint demanded “ that a'receiver of the rents and profits of all the mortgaged promises mentioned in said mortgage to said plaintiff be appointed by this court during the pendency of this action.”
    No answer or demurrer to the complaint was interposed by any of the defendants.
    The final judgment of foreclosure was granted in this action on the 17th day of February, 1875, at the same time and place that an ordei- appointing James T. Olwell receiver was granted. The receiver’s bond was not approved and filed till the nineteenth day of Februaiy. A copy of the order appointing Mr. Olwell receiver was not served on Mr. Bagley till March 8, 1875.
    The rents which the plaintiff now asks to have paid over to him, by Bagley, as assignee, were collected and paid out the day before the receiver was appointed, to wit, on the sixteenth day of February. Of the rents collected by said assignee, $250 was due December 1, 1871, and sixty-one dollars and forty-five cents was advanced on the quarter’s rent which was to become due March 1, 1875.

      J. A. Griswold, for the appellant.

      King c& Hallodk, for the respondent John H. Bagley, Jr.
   Bocees, J.:

I was not entirely assured on the argument of this appeal but that the mortgagee obtained a superior right and equity to the uncollected rents and j>rofits of the mortgaged premises, over the assignee in bankruptcy of the mortgagor, from the time the former instituted liis proceeding for the appointment of a receiver. But I find on looking into the authorities (and on reflection this must bo so on principle) that the receiver obtained no right to the rents and profits of the mortgaged premises until his appointment, and then only to such as remained unpaid to the owner of the equity of redemption, or to the party representing such owner; in this case the assignee in bankruptcy. • It was by virtue of the appointment that the mortgagee obtained an equitable lien on the unpaid rents of the premises mortgaged. (Lofsky v. Maujer, 3 Sandf. Ch., 69; Howell v. Ripley, 10 Paige, 43; Astor v. Turner, 11 Paige, 436 ; Bank of Ogdensburghs. Arnold, 5 Paige, 38; Post v. Dorr, 4 Edwd. Ch., 412.) The receiver in this case was appointed on the 17th of February. To that time the owner of the equity of redemption, or the party representing him, had the right to make collection of the rents, unless restrained by injunction from so doing. There was no injunction in this case; therefore, the right to receive the rents remained to the mortgagor, or in this case, to his assignee in bankruptcy, who represented his rights in the mortgaged property, until the 17th of February, when the receiver herein was appointed. It was held in Astor v. Turner (supra), that it was by the appointment of a receiver that the mortgagee may obtain a specific lien upon the rents and profits to answer any expected deficiency; and that he could not call on the owner of the equity of redemption to refund rents and profits, which the latter had collected or received before the mortgagee secured his specifie lien by the appointment.of the receiver. So, too, it was said in Post v. Dorr (supra), in substance, that a mortgagee acquires a specific lien upon the rents by obtaining the appointment of a receiver of them. In this case the rents were collected and received by the assignee in bankruptcy before the appointment of the receiver. The order of the Special Term was right and must be affirmed.

Learned, P. J., and Boardman, J., concurred.

Order affirmed, with ten dollars costs and disbursements.