text:
    MARY HOWLAND. Respondent, v. EDGAR J. HOWLAND, Appellant.

      Wife — may 'bring an action of replevin against her husband, to recover personal property belonging to her.

    A wife who has left her husband without good cause, and is living separate and apart from him, may maintain an action of replevin against him to recover articles of personal property belonging to her, which were left and remained in his house and possession. (Learned, P. J., dissenting.)
    Appeal from a judgment in fayor of the plaintiff, entered upon .the report of a referee.
    This was an action of replevin, brought by the plaintiff against her husband, to recover certain articles of household furniture and wearing apparel which belonged to her.
    The parties hereto were married in September, 1867, and lived together until April 17, 1871, when the plaintiff, without so. far as appeared any good cause, left her husband and weiit to her father’s house, where she has since resided, living separate and apart from her husband.
    The plaintiff, through an agent, demanded from her husband the said articles of personal property, and on hisrefusal 'to deliver the same brought this action for their recovery.

      F. M. Fitzgerald, for the appellant.

      Chapman <& Lyon, for the respondent.
   Boardman, J. :

The defendant’s counsel complains that the findings of the referee are not sustained by the evidence.

We think the complaint is not justified. But, if it were doubtful, it is sufficient to say that all of the evidence taken upon the trial has not been returned. The case does not purport to contain all the evidence. It will be presumed, therefore, that additional evidence, sufficient to sustain the findings of the court, was given upon the trial.

The judgment entered Avas not such as was authorized by the report of the referee. That, however, is an irregularity Avhieh can, and should, be corrected by motion at Special Term, and not by appeal. (Ingersoll v. Bostwick, 22 N. Y., 425.)

An action by a wife may be maintained against her husband for the conversón of her property. She may maintain ejectment against her husband for her real estate. (Minier v. Minier, 4 Lans., 421, Third Dept., 1870 ; Wood v. Wood, 18 Hun, 350, Second Dept., 1879.) In Berdell v. Berdell (58 How., 102); S. C., Berdell v. Parkhurst (19 Hun, 358), it is held that the husband may sue his wife for taking and converting his property. That is an extreme case. Certainly, if the husband may sue the wife in such case, she would be entitled in like case to an action against him. The weight of authority, and the reason of the married woman’s law, sustain her right. (Wright v. Wright, 54 N. Y., 437; Perkins v. Perkins, 62 Barb., 531, 540; Whitney v. Whitney, 3 Abb. [N. S.], 350; S. C., 49 Barb., 319; Adams v. Curtis, 4 Lans., 164.)

Potter, J., says, in Perkins v. Perkins (supra), a husband cannot sue his wife in respect to property, because he had not such right under the common law, and the acts in respect to married women have not enlarged his rights. But he recognizes the law as laid down in Adams v. Curtis and Minier v. Minier above cited, that a married woman may maintain an action at law against her husband to recover money or property in his possession belonging to her.

The cases Freethy v. Freethy (42 Barb., 641) and Longendyke v. Longendyke (44 id., 366), are not in point. The one was an action by the wife against her. husband for slander, and the other for an assault and battery. Gould v. Gould (29 How., 441) is hostile to several of the cases above cited, especially Wood v. Wood and Minier v. Minier (supra). But it was decided by a divided court, and the learned dissenting opinion of Daly, P. J., satisfies our reason and commands our respect and approval.

We follow the decisions of this department when we sustain this judgment. That must be the law to control our action until such time as the Court of Appeals shall reverse or overrule us.

The judgment should be affirmed, with costs.

Bocees, J., concurred, LearNed, P. J., dissenting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Boardman, J. : Learned, P. J.

license: Public Domain

text:
    BETSEY E. GREEN, Respondent, v. WILLIAM COLLINS, Appellant.

      Conveyance of a house, “ with, the appurtenances ” — a covenant of warranty in a deed covers the case of the failure of the grantor’s title to an apparent easement.

    The defendant conveyed a house and lot, “ with the appurtenances,” to the plaintiff by a deed containing, the usual covenant of warranty. At the time of the conveyance there was a water-closet and bath-room in the house, the discharge pipes from which connected with a sewer leading from the said premises to and uioon the adjoining lands which were owned by one Albertson. 4 Subsequently Albertson sued the plaintiff and recovered a judgment perpetually enjoining her from using the said sewer.
    In this action brought by the plaintiff to recover damages for a breach of the covenant of warranty contained in the deed from the defendant, held, that she was entitled to recover. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    In April, 1873, the defendant sold and conveyed to the plaintiff certain real estate in the city of Troy, consisting of a dwelling-house and lot, for the sum of $10,500, “with the appurtenances,” the deed whereof contained the following covenant: “And the said William Collins doth hereby covenant and agree to and with the said party of the second part, her heirs and assigns, that the premises thus conveyed in the quiet and peaceable possession of the said party of the second part, her heirs and assigns, he will forever- warrant and defend against any persons whomsoever, lawfully claiming the same or any part thereof.”
    Upon the trial of this action evidence was given tending to show that there was at that time a privy, or water-closet and bath-room, in the said dwelling-house, properly connected by means of discharge pipes with a sewer leading from the premises to and upon certain lands owned by one John P. Alberston, through which the -water and filth from said water-closet and bath-room were discharged.
    The plaintiff went into possession under her deed, and immediately began tbe use of tbe sewer in connection with tbe water-closet and batb-room.
    Afterwards Albertson, on whose land tbe sewer discharged, sued tbe plaintiff, and after trial recovered a judgment perpetually restraining her from such use of tbe sewer.
    This action was thereupon brought to recover tbe damages sustained by tbe plaintiff in consequence of tbe breach of the covenant contained in tbe deed.
    Tbe jury rendered a verdict in favor of tbe plamtiff for $2,000.

      P. A. Parmenter, for the appellant.

      JEdgar L. Fursman, for tbe respondent.
   Boardman, J. :

Tbe verdict of tbe jury is conclusive upon tbe facts. There was evidence enough to sustain it. Tbe water-closets and sinks were connected with tbe sewer when Collins conveyed to plaintiff. It was an apparent appurtenant to tbe property sold. Tbe plaintiff bad tbe right to believe she was buying tbe use of tbe sewer for a drain to water-closets and sinks. In fact, defendant bad no such right as be bad convoyed, as was shown by tbe Albertson judgment. Tbe defendant bad given a deed to plaintiff with covenant for quiet enjoyment. There was a breach of this covenant when Albertson recovered against plaintiff, and tbe use and enjoyment of tbe sewer was enjoined. Tbe defendant became thereby bable for damages. He has not settled with, or paid, plaintiff for her damages. The amount of her damages was $2,000.

These are tbe facts, as found by tbe jury, on conflicting evidence. These facts must be assumed to be true for tbe purposes of this appeal.

Tbe claim that no easement was conveyed, because defendant bad none, is true. But tbe use made thereof is fallacious. Tbe deed, by its terms, conveys whatever was, in fact, appurtenant to tbe premises. This general right of sewerage was apparently such an appurtenant. Plaintiff bought relying upon appearances. Defendant covenanted she should have and enjoy what she was buying. It was held in Thayer v. Payne (2 Cush., 327) that if the use of the drain was necessary to the beneficial use of the premises granted it passed by the conveyance. If the house and lot were conveyed in terms no one, I think, will dispute the correctness of this decision by Pratt, J., in Tabor v. Bradley (18 N. Y., 114). So, in Huttemeier v. Albro (18 id., 51), “it is a general rule that upon a conveyance of land whatever is in use for it, as an incident or appurtenance, passes with it.” Whether such use is embraced in a deed is a question of construction. But, if it is, the conveyance is as absolute as though specially named and described. Hence an action for a breach of covenant may be maintained for an appurtenant not described, as well as one described, in the deed. If an easement of a right of way were conveyed, though without title in the grantor, no one can doubt he would be liable on his warranty. Any other holding would be destructive of all value in covenants for quiet enjoyment. The covenant operated upon everything which would have passed by the deed had defendant owned. Ruggles, J., says, in Mott v. Palmer (1 N. Y., 569), “a deed passes all the incidents to the land, as well as the land itself, and as well when they are not exju’essed as when they are.” ( Again, at pages 571 and 572, the learned judge shows the fallacy of defendant's claim that Collins could not convey, as an appurtenant to land, a right which he did not- own, so as to become liable on his breach of covenant. (See, also, opinions of Bronson, J., pp. 573-574, and Johnson, J., p. 575.)

The case of Mott v. Palmer arose under a covenant of seizure. The same principles, however, apply in case of a covenant for quiet enjoyment. The only essential difference relates to the time when a breach of the covenant occurs. The covenant of seizure is broken, if at all, instantly, while the covenant for quiet enjoyment is not broken until possession or right to use is disturbed.

Neither of the exceptions to the rejection of evidence offered by the defendant seems to possess any merit. The evidence of depreciation of value in real estate, after plaintiff acquired title, was quite immaterial. Nor was it competent to show defendant’s opinion that he did not consider himself liable.

The amount of damages recovered seems large, but not so large or unreasonable as to show prejudice, passion or mistake.

The charge of the learned judge was clear and fair ; the law was correctly laid down. The jury has disposed of the facts. It is not a case showing any error for which a new trial should be granted.

The judgment and order are therefore affirmed, with costs.

Bocees, J., concurred.

Learned, P. J.

(dissenting).

The rights of the parties are in no way affected by the words “ with the appurtenances” contained in the deed executed by the defendant to' plaintiff. Without those words the deed would convey the appurtenances. (Huttemeier v. Albro, 18 N. Y., 48; 3 Wash. R. Prop., 394 [4th ed.].) With them, it does no more. Whatever is, in fact, appurtenant to the principal thing, passes by a conveyance of it.

Again, this action is not brought on the ground of fraud or false representation. It is an action upon a breach of the covenant in the deed. What was said at the time by the parties seems to be of no consequence. (Mott v. Palmer, 1 N. Y., 574.)

Now it is admitted by the plaintiff, because it is the very ground of the complaint, that the alleged easement, viz. : the right to use the sewer over Albertson’s land was not in fact appurtenant to the premises, because no such easement in fact existed, and, therefore, none passed by the deed. The claim of tho plaintiff, therefore, is that the covenant of warranty, contained in the deed, is a covenant to defend the grantee in the possession, not merely of the land conveyed, but of any easement which, at the time of the execution of the deed, appeared to be appurtenant to the land.

There might be a case where an easement was m fact appurtenant to the land conveyed, and where the grantor’s title to the land failed, and the grantee was evicted of the land and of the easement appurtenant thereto ; but that is not the present case. So, too, there might be a case where the grantor should, in express words, describe a certain easement and should warrant the same to the grantee ; but neither is that the present case. The grantor did not, in this case, warrant the easement, unless a general warranty of the premises is a warranty of every easement which, at the time, has the appearance of being appurtenant thereto, although, in fact, it is not so appurtenant. I find no authorities to sustain this doctrine. Thayer v. Payne (2 Cushing, 327) only holds that when, at the time of executing a deed, there is a drain through other land of the grantor, the grantee may enter on such land to open the dram. In one respect this Massachusetts decision is contrary to the law of this State, because the deed in that case was executed in pursuance of a contract to convey, made eight years before, and there was no evidence of the existence of the drain at the time of the contract. (Simmons v. Cloonan, 47 N. Y., 3.) But, passing over the prior contract to convey, the doctrine of Thayer v. Payne is that of Lampman v. Milks (21 N. Y., 505), and merely decides the right of the grantee in respect to an casement existing hi fact over other lands of the grantor. It holds that such'easement is in fact conveyed by the deed, or at least that the grantor is estopped from denying the grantee’s right to such an easement.

The case of Tabor v. Bradley (18 N. Y., 114), held that the conveyance did not carry the privilege of flooding other land of the grantor as appurtenant.

Huttemeier v. Albro only decides that things actually appurtenant pass with the principal, which is not disputed.

United States v Appleton (1 Sumn., 492) holds only the same doctrine with Lampman v. Milks, (supra.)

Meyer v. Betz (3 Robt., 172) holds only, that the legal presumption is, that a conveyance of the fee of land carries with it the buildings thereon, which doctrine no one ever denied. Mott v. Palmer (1 N. Y., 564) held that' there was a breach of the covenant of seizin, where the grantor was not the owner of a fence which stood on the land. But the learned Judge Buggles remarks especially that the fence would have passed, not by force of the word appurtenances, but as part of the land. And Judge BeoNSON repeats the same idea, that the fence was a part oí the land; the same as trees, herbage, buildings, mines and quarries. The fence was not an appurtenant to the land, but was “ land itself. So that Judge BeoNSON remarks that, if the fence had been expressly excepted by parol, from the operation of the grant and covenant, such exception would have been no answer to the action. That decision, therefore, only holds that a fence standing on land is a part of the land, and is included within the language of a deed which describes such land. It does not decide that an easement which appears to be, but is not, in fact, appurtenant to the land, is warranted by a general covenant of warranty of the land. No one denies that if I convey, with warranty, land which docs not belong to me, I am liable.

The foregoing are the only cases relied on by the plaintiff.

In the case of Burke v. Nichols (2 Keyes, 670), a deed had been executed with full covenants. There was a house upon the land conveyed, and that house projected some four feet over an adjoining lot. The grantee had been evicted from that part of the house which projected over the adjoining lot. It was held that the grantor was not liable on his covenants in the deed. Now, the projection of a part of a house, as for instance the eaves, over-another’s land, with the consequent right of drip, is not an uncommon easement appurtenant to the land. This' case, therefore, illustrates the doctrine that a mere general warranty does not cover things which, as matter of right; are not appurtenant to the premises conveyed.

In the case of Booth v. Alcock (L. R., 8 Ch. App., 663), a lessor granted a lease of a house with its appurtenances, among which lights were specified. At the time of the grant he held an adjoining house for a term of years. He subsequently acquired the reversion, expectant on the term, of the adjoining house, and, after the expiration of the term, he proceeded to build on the site of the adjoining house in a manner which might interfere with the lights of the demised house. Held, that he was not prevented from so doing; that the general words in a grant must be restricted to what the grantor then had power to grant, and will not extend to what he may subsequently acquire. In this case lights were expressly mentioned. Yet the lessee obtained only such rights as the lessor had at the time, and could not control even such as the lessor afterwards acquired. As the lessor warrants what he leases, it must have been held that such implied warranty only applied to such rights and easements as he then had power to grant. But if his lease bound him to warrant the apparent easement, lie would not have been permitted to assert bis subsequently acquired rights to the prejudice of that easement. Much less, then, would the lessor have been liable for the acts of third parties.

In the case of Leech v. Schweder (L. R., 9, Ch. App., 463), there was a demise of premises “ with all lights, easements, •advantages and appurtenances,” and a covenant of quiet enjoyment. The judges in their opinion say that the covenant of quiet enjoyment does not enlarge that which was previously granted ; that the grant of lights is “ the grant of that which had, in law, an existence as an easement over another man’s property at the time when tlie grant was made.”

In the case of Philbrick v. Ewing (97 Mass., 133), the defendant had conveyed to the plaintiff a house and lot with covenant' of warranty. There was a lead pipe which conveyed the water to the house from an aqueduct, across land of a third person. The grantor cut off the pipe and carried it away. It was held that the deed conveyed the pipe as a part of the house, but not the right to draw water through it, because that did not belong to the grantor.

In the present case the covenant of the defendant was to warrant and defend “ the premises thus conveyed.” What, then, according to the language of the deed, did the defendant purport to convey ? A house and lot as described. Now, if he had used no other words, could it be said that, by the language of the deed, he purported to convey the sewer in question ? Certainly not. Nor by adding the words “with the appurtenances” did he, as above shown, give any other or greater effect to the deed. For the very meaning of that word “appurtenances” is that which legally belongs to the principal thing, and therefore passes with it.

Bearing in mind that this is an action on the covenant, and not for fraud, it will be seen that, on the principle decided in the court below, the plaintiff would have been entitled to recover even if it had been proved beyond doubt that she had been told by the defendant, at the time of the contract, that he did not own and did not intend to convey the alleged easement. For in the case of Mott v. Palmer (ut supra) it was correctly said by Judge BRONSON that even a parol exception would not avail in an action on the covenant.

For these reasons I think the judgment should be reversed.

Judgment affirmed, with costs.


author: Bockes, J.: Learned, P. J.

text:
    In the Matter of the ULSTER COUNTY SAVINGS BANK to have the Assessment Roll of the City of Kingston Corrected.

      Application to the county court to have erroi'S in an assessment roll cometed — ' may be made when the assessors have no jurisdiction over the pi'opei'ty assessed — chap. 855 of 1869 and chap. 695 of 1871.
    Chapter 855 of 1869, as amended by chapter 695 of 1871, empowers the boards of supervisors, on the recommendation of the county court of any county, “ to correct any manifest clerical or other error in any assessment,” and to refund any tax illegally or improperly assessed or levied.

      Held, that the said acts authorized an application to the county court to have an assessment stricken from the roll, where there was an entire want of jurisdiction in the assessors to assess the property in question, e. g., the surplus profits of a savings bank wholly invested in United States bonds. (Learned, P. J., dissenting.)
    Appeal from an order of the County Court of Ulster county, denying the application of the Ulster County Savings Institution for an order recommending the common council of the city of Kingston (in this case occupying the position of the board of supervisors) to correct the assessment roll of the said city for the year 1879, to the extent of striking from the said roll an assessment of $30,000 against the personal property or surplus of the said the Ulster County Savings Institution, which said $30,000 was alleged in the petition of the treasurer of the said savings institution to have been wholly invested in United States government bonds before, and to have been so invested at the time of, the assessment thereof. The application was made under chapter 855 of 1869, as amended by chapter 695 of 1871.

      A. W. Goober, for tbe Ulster County Savings Institution, appellant.

      Charles M. Preston, for tbe city of Kingston, respondent.
   Bockes, J.:

Tbe denial of tbe appellant’s application by tbe county court was put, as stated in tbe order appealed from, on tbe ground of a want of jurisdiction in that court to grant tbe prayer of tbe petitioner. It was not based upon any denial of tbe allegations of tbe petition; bence, on tbis appeal, we must accepit those aver-ments as true.

It is stated in tbe petition that tbe “ surplus deposits” of tbe institution were all mvested in United States government bonds ; that sucb bonds were exempt from taxation; that said institution bad no “ other personal property liable to taxation ;n and further that the assessors bad illegally assessed tbe institution upon tbe. assessment roll for $30,000 “surplus deposits;” It was also averred that the assessors bad, on due application to them, refused to strike off sucb illegal assessment, and bad returned tbe roll to tbe common council.

These averments stand admitted, and they show that tbe assessment upon tbe mstitution for $30,000 United States government bonds, “ surplus deposits,” was illegal, not merely erroneous, but illegal, because wholly unauthorized by law.

Tbe decision of the county court was made, doubtless, on tbe authority of tbe opinion of Judge AlleN, In re Hermanee (71 N. Y., 481), and, indeed, it is justified by that opinion. But tbe remarks of Judge AlleN in that case, on which remarks tbe county court based its decision in tbis case, have been recently reviewed in tbe same court (In re New York Catholic Protectory), where they are pronounced both obiter and unsound. It is there said that tbe Hermanee Case “ was not tbe case of a tax illegally imposed ; ” that tbe decision, both in tbe Supreme Court and in the Court of Appeals “ was made to turn upon tbe distinction between an illegal and an erroneous assessment,” and as that was a case of mere erroneous assessment, Judge Rapallo says, “tbe correctness of tbis decision can not be disputed.” Judge Rapadlo then comments on the obiter remarks of Judge AlleN in the Hermanee Case as follows: “ The learned judge who delivered the opinion did not, however, confine himself to the point * * * but discussed some questions which were not necessary to the determination of the case, and he was of opinion that the order could only be made, by the county court in cases where the error' appeared upon the face of the proceedings, and was of an inferior character, in the nature of a clerical error, and that where the illegality consisted of a want of jurisdiction in the assessors the statute did not apply.” These views of Judge AlleN were pronounced heresies ; were held to be unsound. I can do no better than here repeat the language of Judge Rapadlo. He says the power conferred by the statute “ is not in its nature applicable to cases of mere clerical errors, or errors which would not render the assessment void. It seems to us intended to meet cases of illegal taxation ; and those are, where a tax has been assessed, or levied without authority of law, or in violation of law. It furnishes a summary remedy for such cases. * * * This point was not involved in the Hermanee Case, as that was not the case of an illegal tax, and the decision is not, therefore, conclusive as an authority. * * * We think that where, as in the present case, the tax is clearly illegal, being imposed in violation of the statute, the county court has power to order the board of supervisors to refund the amount collected therefor.” This decision exactly covers the case in hand. That was a case where the statute exempted the property assessed from taxation. So here, the “ surplus deposits ” of the institution being in United States government bonds were likewise exempt from taxation.

It is urged by the respondent’s counsel that the assessors had the right to determine the fact whether the “surplus deposits” of the institution were, or were not, invested hi United States government bonds, and that they might determine that they were not so invested. This suggestion has two answers: (1.) That it stands admitted here, as averred in the petition, that all the “ surplus deposits ” were invested in United States government bonds, and that the institution had no other personal property liable to assessment; and (2) that even if the assessment should be deemed to have determined this asserted fact against the institution,-such determination by the assessors would not be conclusive, the fact being one upon which their jurisdiction depended. (The Nat. Bank of Chemung v. City of Elmira, 53 N. Y., 49.) In this case it was decided that officers could not acquire jurisdiction by determining- that they have it. This precise point was also decided in The New York Catholic Protectory Case. (See first part of Judge Rapallo’s opinion.) The learned judge there says : “ If the jurisdictional fact did not exist the determination of the assessors could not establish jurisdiction in them.” The New York Catholic Protectory Case was precisely like this in its controlling fact. The land there assessed was declared by law to be exempt, as the United States government bonds here are declared exempt from taxation. So we must hold in this case, as it was held in The New York Catholic Protectory Case,' that “the imposition of the tax in question was manifestly illegal, the property upon which it was assessed being by law exempt from taxation. It was not a case merely of an error of judgment in determining the amount of the tax, but of a total want of jurisdiction in the assessors to assess the property at all.” Here the distinction, on which the decision turns, is marked. The distinction is between an erroneous and an illegal assessment. In the former the officers, ha -mig power to act, err in its exercise. In the latter they have no power to act at all, and, as was said in one of the cases cited, it does not aid the case for them to decide that they have it. So v e must accept the decision hi The New York Catholic Protectory ('ase as conclusive upon us here. It decides squarely that, where i here is a want of jurisdiction in the assessors to assess the property they assume to assess, the assessment is illegal, and the acts of 1869 and 1871, under which this proceeding was taken, apply. In that case the assessors had the general authority to assess the applicant’s land, but this piece assessed by them was by law exempt from taxation. So, in the case in hand, t-he assessors had the general authority to assess the applicant’s “surplus deposits.” But such surplus deposits were all invested in United States government bonds, and so, like the land in the other case, they were exempt from taxation, and the party had no other personal property liable to taxation. Thus it is seen that this is not a case of over valuation, not a case of mere erroneous taxation; but is a case of illegal taxation, because of the want of jurisdiction in the assessors to lay the tax. This case, and that of The New York Catholic Protectory, stand alike in this regard.

• It was not necessary to apply to the assessors or to the common council, who here held tho position of the board of supervisors, under the Laws of 1869 and 1871, to correct the roll before making the application to the county court. It seems, however, that the appellant did so apply to the assessors, who refused to make the correction. There .is nothing in the statute requiring such action as a prerequisite to the right conferred. It was enough that the assessors were without jurisdiction in the premises, and consequently that tho assessment was illegal. This being so, the case camo within the purview of the law.

The order should be reversed, and tho case must go back to the County Court of Ulster county for determination by that court.

And in case the facts stated in tho petition should not be controverted, or, if controverted, should be proved to exist, that court should grant the order authorized by law to be granted. It may be proper here to say that, in case it should appear that the illegal tax has been collected, then it will lie with the county court to order the tax so improperly collected to be refunded under the law as amended in 1871. The order to show cause, which here took tho place of a notice of motion, is broad in its terms, asking for specific relief, or for such other or further order as might be just.

No costs should be given on this appeal, inasmuch as the county court was led into the making of an erroneous order by what was ■ supposed to be the law as laid down by the Court of Appeals.

Order appealed from reversed, and proceedings sent back to the County Court of Ulster county to be acted upon and determined by that court, without costs of appeal to either party.

Boardman, J., concurred.

Learned, P. J.

(dissenting).

The case In re Catholic Protectory is the latest decision of the Court of Appeals on the statutes in question.

That case says that “the act undoubtedly confines the power of correction conferred upon the board of supervisors to clerical or other errors of that description. This power is to be exercised before collection of the tax, and may be, even before its imposition. But the power of the county court to order the refunding of a tax illegally assessed or levied and collected is a different power, conferred, not upon the supervisors, but the court, and is not in its nature applicable to cases of mere clerical errors, or errors 'which would not render the assessment void. It seems to us intended to meet cases of illegal taxation; and those are where a tax has been assessed or levied without authority of law or in violation of law, and has been collected.”

The present application was not made to compel the supervisors to refund a tax which had been collected. The tax had not been even levied when the application was made. It was, therefore, an application to correct an assessment; and under the decision above cited, such an application could only be granted in cases of “ clerical or other error of that description.” Until that decision shall be reversed or qualified we ought to follow it, and the order should be affirmed, with ten dollars costs and printing disbursements.

Order reversed, with ten dollars costs and printing disbursements.

       MSS. op. Ct. of App., May 20,1879.


author: Learned, P. J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. DANIEL C. SCUDDER v. ALLEN COOPER.

      Judgment in an action of ejectment — sheriff entitled to talte peaceable possession as agent of the plaintiff — Stay of proceedings — whatnot a violation of— Costs in proceedings to punish for ccmtempt.

    At 9 a. m., on the 18th day of May, 1874, one Fountain entered a judgment in his favor, in an action of ejectment brought by him against one Seudder to recover the possession of a house and lot in Elmira. A writ of possession was issued thereon to the sheriff, requiring him to deliver possession, “without delay,” in pursuance of which he, accompanied by one Arnot, the assignee of Fountain’s right, went to the house, told Seudder that he wanted immediate possession, refused his request for a delay, took the keys of the front and back doors and put them in his pocket, and proceeded, with his assistant, to remove Scudder’s property from the house.
    At 1 p. m., of the same day, he was served with an order staying all proceedings upon the judgment and the writ, pending the decision of a motion for a new trial. After he had read the order he stopped the further removal of the goods, told a person in the house that she had better go out, as he was going to lock up the house, and having locked the doors went away, leaving a deputy in possession.
    Upon an appeal from an order adjudging the sheriff guilty of a contempt in violating the stay of proceedings, and imposing a fine upon him therefor; held, that Arnot, as the assignee of Fountain, was, by virtue of the judgment, entitled to take possession of the premises if he could do so peaceably.
    That the sheriff could take possession as his agent, and, having done so, rightfully commenced to remove the defendant’s goods.
    That when served with the order staying all further proceedings Arnot was already, by virtue of what had been done, in possession of the premises; that the sheriff was not required to turn out Arnot and reinstate Scudder in possession, and that his failure so to do did not render him guilty of a contempt.
    In proceedings to punish for a contempt where the party acted in good faith, and in accordance with what he belived to be his duty, only motion fees and disbursements can be taxed as costs.
    Appeal from an order adjudging the defendant guilty of a contempt.
    At 9 a. m., on the 18th day of May, 1874, one Jabez H. Fountain entered a judgment in the office of the clerk of the county of Chemung, in an action wherein he was plaintiff, and the relator, Daniel C. Scudder, was defendant, the judgment being for the recovery of certain real estate situate in the city of Elmira, in the said county of Chemung, and of which the relator was in the possession, the judgment being entered upon the verdict of a jury. On the same day a writ of possession was issued and delivered by the attorney for Fountain to the above-named Allen Cooper, as sheriff of said county of Chemung. The sheriff immediately proceeded in its execution by removing the furniture from the house.
    At about one o’clock in the afternoon of that day, the sheriff was served with an ex aparte order granted by Justice Balcom, staying all proceedings upon the judgment and execution, to enable defendant to make a motion for a new trial.
    On the 22d day of May, 1874, a further order was granted requiring the sheriff to show cause before a Circuit Court and Special Term, then in session at Elmira, on the twenty-fifth day of May then inst., wliy the sheriff should not be punished for alleged misconduct in disobeying the aforesaid order staying proceedings.
    On the 18th day of June, 1874, at Binghamton, the judge rendered his decision granting the defendant’s motion for a new trial, upon condition that defendant pay all costs and damages recovered by the judgment by the first of July following. If not paid then, motion denied. And in the same decision ho adjudged the sheriff to be guilty of a contempt, and sent the case to a referee to take proof and report to the court as to the damages Scudder sustained by reason of the disobedience by the sheriff of the order staying proceedings, and whether the sheriff should be punished for willful misconduct.
    The matter was heard before the referee, and on the 5th day of August, 1876, he made his report; and on the 24th day of April, 1877,. an order was made overruling the sheriff’s exceptions to the referee’s report, and adjudging that he was guilty of the misconduct charged against him, and that such misconduct was willful and deliberate.
    It allowed Scudder $72.53 actual damages, $196.40 costs of the order to show cause, imposed a fine of $250, and an imprisonment of six months if the fine was not paid. The' items comprising the $196.40 costs included proceedings before, and after trial, a trial fee, and a fee for the argument of exceptions to the referee’s report.

      J. A. Reynolds and J. McGuire, for the appellant.

      R. King, for the respondent.
   Learned, P. J. :

This court decided in November, 1879 (19 Hun, 165), in the case of Powers v. Athens, that on such a proceeding as this the only costs taxable were motion fees and disbursements. Under that decision the items of proceedings before trial, proceedings after trial, and trial, could not be allowed.

On the 18th day of May,' 1874, at 10 a. m., a writ of possession was issued to the sheriff on a judgment in ejectment, in which Fountain was plaintiff and Scudder defendant. The writ required the sheriff to deliver possession “ without delay.” That was the proper form provided by statute and established by practice. (2 R. S. [m. p.], 308, § 34, 2 Burr. Pr., 326, 3 id., 588.) The sheriff at once proceeded to execute the writ, .going to the house with Arnot, the assignee of the plaintiff’s rights. At about 1 p. m. the sheriff was served with au order staying proceedings. On the twenty-second of May he was served with an order to show cause why he should not be punished for contempt for disobeying that order. Hence it appears that the matter in dispute relates to the conduct of the sheriff after he was served with the stay, May eighteenth, 1 p. m., and before he was served with the order to show cause, May twenty-second.

Much of the evidence taken before the referee has nothing to do with the question. It relates to an alleged oppressive execution of the writ, before the service of the stay, and to conduct of the sheriff after he was adjudged to be in contempt, J une eighteenth. It is of no consequence on the present matter in what manner, before the service of the stay, the sheriff had executed the writ. The question here is whether he had disobeyed the stay after it was served and before the order to show cause was served on him.

Judge Balcom decided, June eighteenth, that the sheriff had disobeyed the order, and he referred it to a referee to inquire what damages Scudder had sustained, and whether the sheriff’s disobedience was willful. These were the only matters sent to the referee.

The testimony of Scudder, who, of course, is the most favorable witness against the sheriff, is that the sheriff had commenced taking out the goods ; that thereupon he went to his counsel and procured from Judge Balcom the stay ; that he served it on the sheriff; that the sheriff was reading it and the papers on which it was granted for perhaps five minutes ; that Mr. Arnot, the party in interest, said that was the justice’s signature, and they must stop. Scudder says that while they were examining the papers, the men were carrying out furniture. The house was at that time unlocked and the doors open.

Mrs. Barnett, his daughter, says that, after the papers were served, tbe sheriff came in and asked her and Mrs. Spaulding (a visitor), if they would go out, as he wanted to lock the doors. She asked if she could stay. He said she would better go, as he wanted to lock the door. She went out and he locked the door.

The sheriff states that he went to the house in the morning, and Scudder told him he would not give it up ; that he told Scudder his orders were to take possession and remove his goods ; that he took the front door key when he went there, and, with his assistant, commenced removing the goods through the front door, the side door and the back door ; that when the order was served on him he stopped at once, removed no more, goods, locked the doors and left his deputy in possession, and sent up a man in the morning who remained in possession.

Mr. Arnot states that the sheriff took the keys of the front and back doors and put them in his pocket when he went there in the morning ; that the removal of goods was stopped -when the order was served, and that the house was locked up.

The sheriff testifies, and there is no contradiction, that he supposed it was his duty to lock up the house, after the order was served ; that he had the keys, and thought it necessary to protect the property, and that he had no intention of disobeying the order.

The final order, made subsequent to the order of Judge BalcoM, finds the sheriff guilty of disobedience by allowing goods to be removed, by refusing Scudder permission to put his goods back, by inducing the inmates to leave the house, and by locking it up and keeping possession.

The evidence shows that after the sheriff had read and understood the papers he did not permit any furniture to be removed. Ho had a right to a reasonable time to read and understand the order, and, when he learned what it was, he obeyed it, as to the removing of furniture. Whether, before that time, he had removed the furniture carefully or carelessly has nothing to do with this matter.

By virtue of the judgment, without any writ, the plaintiff, or Arnot as assignee, was entitled to take possession of the premises, if he could do so peaceably, d)he judgment protected him from an action of trespass for entering and taking possession. (Jackson v. Haviland, 13 Johns., 234; 2 Burr. Pr., 326; Witbeck v. Van Rensselaer, 64 N. Y., 27.) What he could do himself he could authorize the sheriff, as his agent, to do. Possession may be taken even after the return day of the writ, as was held in the case last cited. In that case also the court say, that while it is the duty of the sheriff to remove the personal property on the premises, yet the omission to do this does not vitiate the execution of the writ, if possession of the land is delivered.

The relator cites Kingsdale v. Mann (1 Salk., 321), S. C. (6 Mod., 27), as authority that the writ of possession will not be regarded as fully executed until the sheriff and his officers are gone and the plaintiff" left in full possession. The case does not decide this. It has been thus cited in the text-books, through the error of taking the marginal notes, as a correct statement of the decision. Possession had been delivered at 9 a. m., and at 6 p. m. the plaintiff was forcibly put out of possession. The only question is whether the court should grant an attachment in aid of the old writ, or should grant a new writ.

In Dawley v. Brown (43 How., 22), the sheriff had delivered possession after a judgment in ejectment on the seventh of April. The judgment was set aside on the eighth. The Special Term on the fifteenth ordered the plaintiff" to desist from interfering with the possession, and afterwards punished him for disobedience. The General Term reversed the order, and held that the order of the fifteenth was utterly void.

Now, in the present case it is not disputed that Arnot went with the sheriff and told him that he wanted immediate possession. The sheriff, on behalf of Arnot, took the keys of the front and back door and put them in his pocket, and, as Arnot says, took possession. Scudder’s request for delay was refused; and he made no resistance to their entry. They entered claiming title. They were not trespassers, because the judgment had established Arnot’s rights. And they took possession both by actual entry and by taking the keys. That there still remained property of Mrs. Barnett on the premises did not prevent their acts from being -an actual and valid taking of possession. (Witbeck v. Van Rensselaer [ut supra].)

It was proper thereupon that the sheriff should proceed, to remove the property on the premises belonging to the occupants, as he did. But when he was stopped in doing this by the stay, he was not authorized to turn out Arnot and replace Scudder. All that he could be required to do was to stop removing the goods. The keys were in his possession, as Arnot's agent; and ho had no right to give them up to Scudder. It was because Arnot had taken possession of the premises that the sheriff proceeded to remove the goods of other persons therefrom, and Arnot remained in possession, notwithstanding the stay.

The sheriff acted rightfully in locking up the house. It would have been imprudent to leave it open. He informed Mrs. Barnett that he was about to lock up ; and she would best go. It does not appear that she had any rights in the house except that she boarded with Scudder.

The sheriff further testifies, without contradiction, that in locking up the house and in all that he did he thought he was doing his duty. If he were even mistaken in this respect, it seems to be strange to hold him guilty of a willful contempt.

The order should be reversed, with ten dollars costs and printing disbursements. ' *

Present — Learned, P. J., Boardman and Bocees, JJ.

Order reversed, with ten dollars costs and printing disbursements, and motion to punish sheriff denied with ten dollars costs, and motion to dismiss appeal denied, without costs.


author: Learned, P. J, :

text:
    CHARLES L. POND as Receiver, etc., of ELISHA COMSTOCK, Appellant, v. ABIJAH COMSTOCK, Impleaded, etc., Respondent.

      Assignment to defraud, creditors — when an assignee, accepting the same in good faith, is protected as to moneys advanced in consideration thei’eof.

    A father made an assignment of all his property to his son, in consideration that the latter should pay four debts specified therein and support the grantor’s wife during her natural life. The conveyance was made by the father with intent to defraud his creditors, hut was accepted by the son in good faith, with the desire to prevent his father from squandering the property, and in the belief that the debts named were all his father owed. On subsequently learning of the existence of other debts, the son paid some of them, in pursuance of an agreement with his father, by which he was to have a lien upon the property for the amounts so advanced by him.
    In this action, brought by a receiver appointed in proceedings supplementary to execution, to set aside the conveyance as fraudulent, held, that the son was properly allowed the amounts advanced by him in paying the debts of his father existing at the time of the assignment.
    Appeal by the plaintiff from a judgment adjudging an assignment made by one Elisha Comstock to the defendant, Abijah Comstock, to be fraudulent and void as to the former’s creditors, and allowing to said Abijah Comstock certain payments made by him. The judgment -was entered upon the trial of this action by the court without a jury.

      A,. Pond, for the appellant.

      Nathaniel G. Moak, for the respondent, Abijah Comstock.
   Learned, P. J, :

Elisha Comstock, in 1875, made an assignment of. all his property to his son, Abijah Comstock, in consideration that he would pay four debts specified therein, and would provide for the support of Susan, the wife of Elisha, during her life. The learned justice who tried the cause finds that this was executed by Elisha with intent to defraud his creditors ; but he finds that it was not executed or accepted by Abijah with intent to hinder, delay or defraud the creditors of Elisha, but honestly and in good faith, and iu the belief that the debts therein specified were all which Elisha owed, and with the desire to protect the property of his father from being squandered, owing to his father’s habits of drunkenness.

After the execution of the contract,' Abijah paid the debts specified therein.

In January or February, 1876, Abijah first learned that his father owed some other debts, and from time to time he learned of others.' Thereupon his father agreed that, if Abijah paid such other debts, he should have a lien therefor on the property so transferred to him as aforesaid. Under this arrangement Abijah, from time to time, paid creditors of his father, who were such when the assignment was made.

Subsequently the plaintiff was appointed receiver in proceedings supplementary, taken on a judgment against Elisha Com-stock, and brought this action to set aside the conveyance to Abijah as fraudulent, and for further relief thereon. In the decision of the court below, Abijah was allowed credit for the debts of Elisha paid by him ; and it was also held that, from the avails of the assigned property, Abijah should be repaid whatever he had paid of debts of Elisha, over his receipts from such property. The plaintiff, on this appeal, claims that Abijah should not be allowed for any money paid by him to creditors of Elisha.

The important circumstance on this point is, that Abijah, in accepting the transfer, was not a party to any actual, fraudulent intent. He took it in good faith ; and he is entitled, therefore, to the protection which good faith gives. One who knowingly combines with a debtor to place the debtor’s property beyond the reach of creditors is entitled to no favor. One who in good faith, and for an honest purpose, receives a conveyance, which proves to have been made with fraudulent intent on the grantor’s part, is only bound to restore to the grantor’s creditors what he has received.

If Abijah, on learning of the existence of other creditors of Elisha, had taken the property, which equitably belonged to them, and which had thus come to him, and had applied it to the satisfaction of their claims he would have been acting honestly and lawfully. He would have been applying Elisha’s property to the payment of Elisha’s debts. He would have done voluntarily what the court would have compelled him to do. And no one can complain that this would have been unjust. If he had paid one creditor of Elisha before he paid another that would have been doing only what Elisha might have done. The creditors had no legal liens on the property.

This is what Abijah practically did when, with his own money, he paid debts of Elisha existing at the time of making the assignment. He made these payments on the security of the property which he had in his hands from Elisha, and with Elisha’s consent. And the present plaintiff is no worse off, under the ruling of the court below, than he would have been if Abijah had directly-applied the property to the payment of the debts, instead of paying the debts himself and charging the amount against the property. The plaintiff is entitled to have such of Elisha’s property remaining in Abijah’s hands applied to his debt as has not been directly or indirectly applied to other debts of Elisha. And that is the extent of the plaintiff’s just claim. That is what was given to him when the court below adjudged that he should have the avails of that property, after first reimbursing Abijah therefrom, for the debts of Elisha paid by him.

On the question of fact, that Abijah took the transfer in actual good faith and with good motives, there is no doubt upon the evidence. That his payment of debts which he discovered were in existence at the execution of the transfer, not named therein, was also in good faith we are satisfied.

The judgment should be affirmed, with costs.

Present — Leabned, P. J., Boardman and Bocees, JJ.

Judgment affirmed, with costs.


text:
    PETER G. FRITCHER, Plaintiff, v. JACOB J. ANTHONY, Defendant.

      JEasemeni — reservation of right to the grantee to conduct mate!' over the land sold — ovmei' of servient estate not bound to repair the conduit.

    The defendant conveyed to the plaintiff’s grantor a lot, reserving the right to carry all the water running across the same by a culvert, of a specified size, one-half of which was to be built by the grantee, his heirs and assigns, to within fifty feet of the north line of the lot, and from that point the water was to be conveyed “by an open race, each party to build the one-half of the same.” Subsequently, in pursuance of an agreement between the plaintiff and defendant, the plaintiff gave the defendant the right to convey the water by iron pipes along a new and altered course, as a substitute for a portion of the open race. The new pipes were situated below the former race, and were connected with it by a bulk-head. The defendant then placed, inside the portion of the race still left, a closed box for the conveyance of the water, and covered the box with earth.

      The plaintiff claimed, that this box burst, from the pressure of the water and the action of the frost, and allowed the water to run into the former open race, and that owing to such race being out of repair the water leaked from thence upon his land
    In an action by him to recover the damages occasioned thereby, held, that the defendant, having himself assumed to construct the closed race, could not allow it to fall into delapidation and then claim that the plaintiff was without remedy.
    That the fact that the defendant had a right to call on the plaintiff for one-half of the expense of keeping the structure in repair did not relieve him from the obligation to see that proper repairs were made.'
    That assuming that the plaintiff might, under the deed, have repaired the race, and recovered one-half of the expense of so doing from the defendant, yet such remedy was cumulative only and was not a bar to an action for damages, nor did it relieve the defendant from his duty as the owner of the easement over the plaintiff's land, of keeping the same in repair, or relieve him from liability for the damages occasioned by his failure so to do.
    MotioN for a' new trial on a case and exception, ordered. to be beard in the first instance at the General Term, after a verdict in favor of the plaintiff, rendered at the circuit.
    The action was brought to recover damages occasioned by the leaking of water from a conduit, or race, running across the plaintiff's lands, which race it was claimed that the defendant was bound to repair.
    The plaintiff purchased the premises subject to the defendant’s right to have the water flow across the land, which right had been reserved in a deed of the land from the defendant to one Smith, the plaintiff’s grantor, by the following clause : “ The said parties of the first part reserving to themselves, their heirs and assigns all the water that now runs or may run across the said lot hereby conveyed, and the right to carry all of said water that may run across said lot by a culvert, said culvert to be three feet wide and three feet high in the clear, said Smith, his heirs and assigns is to build the one-half of said culvert, the aforesaid described culvert to extend northerly from the main springs to within fifty feet of the north line of the within described lot, the water to be conveyed the fifty feet by an open race, each party to build the one-half of the same.”
    Subsequently, at the request of the defendant, an arrangement was consummated between the parties by which, by the provisions of a deed executed by Fritcher and wife to Anthony, the direction of the water-course, and the manner of conveying the water through the race, was changed for a portion of the way, the plaintiff giving the defendant the right to convey the water by iron pipes along the new and altered course, and the defendant releasing said portion of the old course to the plaintiff'. Except as to the last mentioned provisions of this, deed, its provisions were considered by the court in the following opinion as not affecting the decision of this case.
    The new iron pipes were laid lower than the old open race, and were connected with it by a perpendicular bulk-head in the form of a square box about eight feet in height.
    The defendant then also laid within the remaining old open race a closed one, connecting it with the upright bulk-head connecting the old and new courses.
    Evidence was given tending to show that the water-course along the old site, after being closed.at the top, leaked somewhat, and under pressure of the water, and the action of the frost and weather, continued to leak worse, until streams of water flowed across plaintiff’s premises, and between and about his mills and dwelling house, washing out earth and causing great inconvenience and damage.

      L. II. Jacbson, for the plaintiff.

      A. B. Qoons and 8. L. Mayham, for the defendant.
   Learned, P. J. :

■ "We think the judge properly refused to receive evidence of the acts of the plaintiff’s son, until some proof had been given that the son acted by the plaintiff’s authority.

The defendant excepted to the charge, that the defendant, having assumed to build the race, and to construct it entirely himself, could not allow it to fall into dilapidation, and then claim that the plaintiff was without remedy, and that there is no omission of duty on the part of the plaintiff which constitutes a defence in this respect.

The deed from Anthony to Smith, under whom the plaintiff claims, contained a reservation of' a right to carry water across the lot by a culvert, of which Smith was to build one-half. The culvert was to extend to within fifty feet of the north line of the lot. The water for that fifty feet was to be conveyed in an open race, each party to build one-half thereof. The complaint alleges that the defendant has suffered this conduit, or race-way, to leak and be out of repair. It appears that, after the plaintiff went into possession, the defendant made another race-way, about fourteen inches square, closed, and put it inside of the open race-way and covered it with earth.

The plaintiff argues, that the closed race-way burst with the pressure and frost, and caused the leaking. This explains the charge of the learned justice that, as the'defendant assumed to build, not an open but a closed race-way, for his own benefit, he was not justified in allowing it to fall into dilapidation, and thep. to claim that the plaintiff was without remedy.

The defendant’s counsel, however, insists that,- by the deed of Fritcher to Anthony, Anthony is to make good all the leaky pipes, after reasonable notice, and that if he neglect, Fritcher shall do this at his expense. But an examination of that deed shows that that agreement refers to certain pipes of cement, metal or wood, which it was thereby provided that Anthony might lay down. Connected with these pipes, a bulk-head might be erected and a hydraulic ram set tip. And while it is not easy to understand, from the printed case, the exact bearings of all these privileges, yet it seems plain that the complaint does not allege any imperfection in the pipes, but only in the race-way. And it does not seem that the agreement in the deed of Fritcher to Anthony respecting the pipes was intended to change the arrangement in the deed of Anthony to Smith, respecting the race-way and the repair thereof by the parties in common.

The learned justice further charged that, by the deed of Fritcher to Anthouy, the plaintiff might repair the bulk-head, and charge half the expense to the defendant; that that was a cumulative remedy, and that it did not follow that, because he did not make the repairs, he is not entitled to recover damages in this action.. To the charge that this was a cumulative remedy the defendant excepted.

The plaintiff’s counsel insists that this was a misapprehension of the learned justice, and that the deed contained no such provision ; and also that the deed of Anthony to Smith contained no provision as to the bulk-head, but only as to the race-way. It seems, that the bulk-head is not expressly mentioned in the first deed. In the second it is mentioned, but no express statement is made as to its repair. Whether or not it is included in the term “ race-way,” or in the term “ pipes,” we ne.ed not now examine. The plaintiff was satisfied with the change, as it stated that the right to repair and charge one-half to the defendant was only a cumulative remedy.

The question presented then is this : Assuming, for the present, that the bulk-head is included in the race-way, and that the learned justice intended to refer to the first instead of the second deed, is the agreement that each party shall build one-half of the opon race-way cumulative, so that the defendant may yet be liable for damages occasioned by leaking.

Now, it is to be noticed that this privilege of taking the water across the plaintiff's land is for the defendant’s benefit. And there is no reason why he should not be liable, if he has, in the language of the learned justice, unjustifiably omitted to keep the structure in good repair. We do not see that a right to call on the plaintiff to pay half the expense of repair relieves the defendant from the obligation so carefully stated in the language of the charge.

The defendant had, by these' deeds, an easement, or servitude, over the plaintiff’s land. And the general rule as to servitudes is that there is no obligation on the owner of the servient property to do any act, but only to allow another to do some act, or to refrain from doing some act himself. (Dig., 8, 1, 15, 1.) Upon general principles, therefore, it would not be the duty of the plaintiff to construct the race-way, or the bulk-head, or pipes. And if, by the term of. the deed, the plaintiff is to build half the race-way, or is allowed to repair the pipes, at the defendant’s cost if they leak, still we must construe these provisions as not taking away the duty of active care for the structure from the defendant. As the learned justice stated, he should have called on the plaintiff' to join him in the construction or in the repair. It' is not necessary to say what the effect of a refusal to join in such repair would be. For that question is not presented. • ■

If, as tbe defendant claims, the plaintiff should himself have made the repairs and sued the defendant for the amount, the defendant might utterly neglect the matter and throw on the plaintiff the whole burden of keeping in order a structure used for the defendant’s own benefit. And, if the defendant were irresponsible, the plaintiff might be unable to recover anything for thus repairing.

There aie several cases cited by the defendant to the effect that a party cannot recover, when his own neglect has caused the damage, or when he has not taken ordinary care. But, in the view taken above, these cases do not apply. No question was raised as to the rule of damages, or as to the obligation of the plaintiff to prevent unnecessary injury. And, if the right to this easement for his own benefit imposed on the defendant the active duty of keeping it in repair, we see no ground to question the correctness of the charge in those respects to which only the defendant excepted.

We think the motion for a new trial should be denied, and judgment given for the plaintiff on the verdict, with costs.

Present — Learned, P. J., BoardmaN and Bocees, JJ.

Motion for new trial denied, and judgment ordered for plaintiff on verdict, with costs.


author: Learned, P. J.:

text:
    JAMES V. G. DUBOIS, Respondent, v. THE CITY OF KINGSTON, Appellant.

      Statute of limitation, — when amend/ments the/reto are applicable to existing causes of action— ch. 431 of 1877.
    Under subdivisions of section 91 of the Old Code, “an action’ for criminal conversation, or for any other in/jury to the person or rights of another, not arising on contract, and not hereinafter enimemted,” might be brought within six years. By chapter 431 of 1876 (passed May 26th of that year), there was added to ■ section 94 of the Code, prescribing the actions which must be brought within one year, a second subdivision as follows, viz.: “An action for injury to the person.” It was provided therein that the act should take effect July 1, 1876.

      This action was commenced toy the plaintiff on July 23, 1877, to recover damages for an injury sustained on November 22, 1872, occasioned by his stumbling over an obstruction on a side-walk in the city of Kingston, alleged to have been negligently suffered to remain there by the defendant.

      Held, that since the amendment of 1876, an action for injury to the person such as the present one must be brought within one year from the time the accident occurred.
    That the amended act was applicable to the plaintiff’s case, and that no action could be maintained by him after July 1, 1877.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a a new trial, made upon the minutes of the justice before whom the action was tried.

      Charles M. Preston and Howard Qlujjp, Jr., for the appellant.

      John E. Van Etten, for the respondent.
   Learned, P. J.:

This action was commenced July 23, 1877. It is brought to recover damages to the plaintiff’s person, occasioned, on the 2 2d day of November, 1872, by his stumbling over an obstruction on the side-walk, alleged to have been negligently suffered to remain there by the defendants. The defendant insists that the action is barred by the statute of limitations.

The Old Code (§ 91, sub. 5) established a six years’ limitation for “ an action for criminal conversation, or for any other injury to the person or rights of another not arising on contract, and not hereinafter enumerated.” The exception made by the words “ not hereinafter enumerated,” was important: because in sections 92, 93 and 94 there are several actions mentioned which are for injury to the rights or person of another, not arising on contract.

By chapter 431 of the Laws of 1876, passed May twenty-six, a second subdivision was added to section 94, in these words: “An action for injury to the person,” which establishes the limitation of one year for such an action. As the statute stood after this amendment, section 91 provided a limitation of six years for injury to the person or rights of another, not arising on contract and not hereinafter enumerated ; and section 94 provided a limitation of one year for an action for injury to the person.- This act by its terms was to take effect the 1st of July, 1876 ; so that, if applicable to the plaintiff’s causé of action, it still allowed one month, after its passage, within which he might sue. (Terry v. Anderson, 5 Otto, 628.)

The case of McGuffin v. Cohoes (18 [Sup. Ct.], N. Y., 531), cited by the plaintiff, has no bearing on the present question. The case of The People v. Lord (19 [Sup. Ct.] N. Y., 282) passed on the effect of an extension of time in criminal cases, and is expressly distinguished by the court from questions of a similar character in civil cases.

The general rule is that a statute, only impairing the remedy, is constitutional, especially when it operates merely by way of limitation in point of time. (Jackson v. Griswold, 5 Johns., 142; Butler v. Palmer, 1 Hill, 324; In Matter of Palmer, 40 N. Y., 561.) And there is a further consideration that this is not an action on contract, but for personal injuries arising out of the defendants’ wrong doing. No authority is cited to show that a mere cause of action for tort, causing a personal injury, is within' the constitutional protection.

The plaintiff cites the old statute of limitations (2 E. S. [m. p.] 295, § 18, subd. 4), claiming that that subdivision would have applied to the present action. But certainly subdivision seven would have been more applicable, which is : “All special actions on the case for criminal conversation for libel, or fon' any other injury to the person or rights of any, except,” etc. This subdivision corresponds with subdivision 5, section 91 (Old Code).

It seems to us that the present action is plainly one for injury to the person. Assault, battery, and false imprisonment are provided for in section 93. The injury meant in section 94, subdivision 2, must therefore, be one which does not come within the definition of those mentioned in section 93; that is an injury caused indirectly, such as were formerly sued upon by action on the case.

This action seems therefore to us to have been barred.

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

Present — LearNEd, P. J., BoarpmaN and Bocees, JJ.

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


text:
    AUGUSTUS BOCKES, Trustee, etc., Appellant, v. HENRY H. HATHORN and others, Respondents. CHAUNCEY KILMER, Trustee, etc., Respondent, v. HENRY H. HATHORN and others, Appellants.

      Mortgage to secure the •payment of bonds, -with coupons attached — an agreement of the mortgagor to take up the coupons with borrowed money and transfer them to the lender, amounts to a payment of the coupons as to the bondholders — When bonds, paid by the mortgagor and reissued, are void in the hands of a bona fide purchaser.

    September 1, 1866, H. H. Hathorn and his wife executed a mortgage upon a hotel in Saratoga to three trustees to secure the payment of bonds to be thereafter issued, not exceeding in amount $400,000. Bonds for that amount were subsequently issued, payable in ten equal annual installments, with coupons for the respective installments of principal and interest attached to each bond, and made payable at the First National Bank of New York.
    About September 1,1874, the Ballston Spa National Bank entered into a written agreement with Hathorn, and with Hathorn & Southgate, in pursuance of ■which Hathorn & Southgate executed notes for $15,000, which were discounted by the bank in the usual way and placed to Hathorn’s credit. The agreement stated that the bank had put the money into Hathorn’s hands for the purpose of purchasing from the present owners thereof the same amount of the coupons upon the said bonds which were secured by his mortgage ; Hathorn agreeing to apply the money to that purpose, and that the said coupons should become the property of and be delivered to the bank and remain a lien on the said premises. In pursuance of this agreement the money was applied in taking up a corresponding amount of coupons of said bonds. The bondholders received the cash for the coupons as they had in former years, without any knowledge of the agreement, and supposing- that such coupons were paid and not that they were bought by the Ballston Bank.
    In an action to foreclose the mortgage the said bank claimed to be the owner of such coupons and to be thereby entitled to share in the proceeds of the sale with the other bondholders.

      Held, that the proceeds of the notes discounted by the bank belonged to Hathorn, and that his application thereof to the taking up the said coupons constituted a payment thereof.
    That his agreement that the bank might hold the same as security for their loan, though it might be good as between him and it, was of no force or validity as against the other bondholders.
    Upon the trial of the action before the referee evidence was given tending to show that Hathorn had taken up certain of the bonds by pacing to the holders the amount due thereon, and that thereafter such bonds had been by another person pledged to secure loans made to him.

      Held, that as the bonds were private sealed instruments the persons to whom they were transferred took them subject to all equities, not only in behalf of Hathorn but of third persons.
    That the referee properly decided that such bonds so reissued were invalid, and that the holders thereof were not secured or protected by the said mortgage.
    That as it was proper to determine the amount due under, and which was secured by the mortgage, in order to direct a sale, the referee properly passed upon the validity of the said bonds so reissued, though the holders thereof were not parties to the action.
    Appeal from a judgment entered upon tbe report of a referee.
    The actions were brought to foreclose a mortgage on Congress Hall, a hotel situated at Saratoga Springs.
    The mortgage was executed to three trustees by Henry H. Hathorn and wife, and- was dated September 1, 1866, being given to secure the payment of certain bonds, thereafter to be executed and issued by the said Henry H. Hathorn, and which were to be countersigned by one of said trustees and were not to exceed $400,000 in amount. The first action was brought by A. Bockes, trustee, etc., to foreclose said mortgage ; and for reasons stated in the complaint, Chauncey Kilmer and John C. Hulbert, the other two trustees, were made defendants therein. The second action was brought by Kilmer, and was in the nature of a cross-bill, and for reasons stated in the complaint therein, A. Bockes, trustee, etc., was made a defendant in the said action. The mortgagors and all other incumbrancers, who were made defendants in the original suit, were also made parties defendant in this cross-action, and in addition thereto John C. Hulbert, one of said original trustees, who claimed title to the personal property belonging to Congress Hall, by virtue of a chattel mortgage thereon, adversely to the trustees, as alleged in the complaint in said cross-suit; and the Commercial National Bank of Saratoga Springs, and the Ballston Spa National Bank, both of whom make claims to be allowed certain coupons which had been cut from the bonds secured by said mortgage, to the amount of $50,000 and over.
    With reference to the claim made by these banks, the referee found :
    “ 1. On or about the 1st day of September, 1874, the Ballston Spa National Bank entered into an arrangement with the defendant Hathorn; and with Hathorn &. Southgate, in writing, as follows :

      “BALLSTON SPA NATIONAL BANK,)
    “BallstoN Spa, N. Y., September 1, 1874.}
    “ The Ballston Spa National Bank has put in my hands fifteen thousand dollars for the purpose of purchasing of the present owners thereof, the same amount of the coupons secured by my bonds and the mortgage on Congress Hall property in Saratoga Springs, payable this day, and which I agree to apply to that purpose and no other, said coupons to become the property of and to be delivered to said bank and to remain a lien on said premises.
    “ II. II. HATHORN,
    “HATHORN & SOUTHGATE.”
    “ At the same time they gave their notes for $15,000, which have been renewed from time to time and interest paid up to February, 1876.
    “ That such arrangement was communicated to the Commercial National Bank of Saratoga Springs, and in pursuance thereof the said Commercial Bank advanced to the holders of the coupons described in schedule ‘ II,’ the amount thereof with the funds furnished by the Ballston Spa National Bank, in pursuance of such arrangement.
    “ That no part of the money so advanced by the Ballston bank has been repaid.
    “ That no representations or statements were made by either of the banks holding said coupons to the holders of said coupons, or to any other persons, that the said coupons were paid or extinguished, or that the transaction was anything other than a purchase ; nor did they or either of them authorize any such statement or representation, nor were statements to the contrary made or intimated, but the bondholders received the amount of such coupons as they had received the same in previous years, supposing that they were receiving payment of the same.
    “2. In the summer of 1874, and prior to September 1, 1874, Mr. Hathorn applied to the First National Bank of New York, where the bonds wore made payable, to advance the money and take up coupons falling due September 1, 1874, to the extent of $20,000, and to hold the coupons as security for the amount thus advanced, notes were given by Hathorn to said bank at a short clay, which were renewed and interest was paid from time to time until February, 1876.
    “ In pursuance of such arrangement the First National Bank of New York did advance its money to the holders of coupons of 1874 to the extent of over $20,BOO, and the same were transferred to the Commercial National Bank of Saratoga Springs in August, 1875.
    “ In September, 1874, Mr. Hathorn applied to the Commercial National Bank of Saratoga Springs to advance a further sum to take up and carry the coupons due September 1, 1874, agreeing that the bank should hold them as security for the money so advanced, and under such arrangement the Commercial National Bank of Saratoga Springs advanced the sum of $8,783.40 and received the coupons therefor, and now holds and presents such coupons.
    “ 3. On the 1st of September, 1875, Mr. Hathorn applied to the First National Bank of New York to advance the money and take up coupons falling duo September, 1875, and at his request, and upon the agreement that such coupons should remain and continue a lien upon the mortgaged premises to' the same extent as in the hands of the original holders, the First National Bank advanced to the holders of such coupons the sum of $23,746.50 and now holds the same. Notes were given at the time of such arrangement to the amount of $20,000.
    “4. About the 1st of September, 1875, Mr. Hathorn applied to the Commercial National Bank of Saratoga Springs to advance to the holders of coupons due September 1, 1875, the amount then due, and agreed that any coupons so taken by the Commercial National Bank should remain secured by the mortgage to the same extent as in the hands of the original holders. Mr. Hathorn then represented and stated that he was negotiating a loan sufficient to pay off all the incumbrances upon his property, and that such loan would be perfected in a very short time. That in case of any failure to complete such loan he should sell the property to Mr. A. T. Stewart, and pay off all these incumbrances before the 1st of December, 1875 ; that in pursuance of such arrangement and request the Commercial National Bank advanced to the holders tbe sum of $25,741.20, and received tbe coupons and now presents tbe same ; that many of tbe holders of Congress Hall bonds deposited tlieir coupons in tbe same manner that they deposited other coupons and drafts on New York with tbe First National Bank of Saratoga Springs, tbe Union Savings Bank of Saratoga Springs, and tbe Saratoga Savings Bank of Saratoga Springs, with which they severally kept their accounts, and tbe same were received by tbe Commercial National Bank from such corporations. Mr. Leake, tbe cashier of the First National Bank and president of tbe Union Savings Bank, was notified of tbe arrangement and that Mr. Hathorn bad no money with which to pay such coupons. No portion of tbe money so advanced by tbe Commercial National Bank has ever been repaid to it, nor have they received any note or other obligation or security for tbe said coupons, except tbe coupons themselves.”

      Charles iS. Lester, for tbe appellants, Bo ekes, Lester and Richards.
    . John T. Carr, for'the appellant, Tbe Commercial National Bank.

      George G. Scott, for tbe appellant, Tbe Ballston Spa National Bank.

      L. B. Pike, for tbe appellants, Hathorn & Southgate.

      A. Pond, for tbe respondents, Kilmer and Deuel, trustees, etc.
   Learned, P. J. :

Tbe first action was commenced by Augustus Bockes and Chauncey Kilmer, two of tbe trustees of a mortgage for bondholders, to foreclose tbe same. Tbe thbd trustee was made a party defendant, because he was also a trustee in a second mortgage. After it bad been commenced, Kilmer refused to continue as plaintiff, and was, by order, made defendant.

Kilmer then commenced the second action as trustee, making tbe other trustees parties, and making others defendants, and asking a foreclosure. The complaint also set up matters alleged to make an equitable lien on personal property, and also matters tending to sliow that some of the bonds and coupons had been paid or extinguished.

To the complaint in this second action demurrers were interposed. On argument before Justice LaNdoN the demurrers were sustained. After the demurrers had been sustained; all the parties to both the actions united in a stipulation, by which it was agreed, among other things, that the order sustaining the demurrer and the appeals therefrom be waived, vacated and set aside ; that the actions be tried together on the pleadings and on the proofs to be submitted at the trial on a reference, and that all matters and questions involved therein be submitted on such trial, to be there 'passed upon. On this stipulation an order of reference was made, and the actions were tried. The referee’s report passes on the matters in dispute between the parties, and settles their rights. Among other things he decides that the plaintiff in the second entitled action is entitled to judgment on the demurrer, but without costs. One of the questions made on this appeal is on the correctness of that decision.

So far as we can see, this presents merely a question of costs. The matters of fact, alleged in the complaint in the second action, in regard to the alleged payment of bonds and coupons, and other similar questions, seem to have been litigated before the referee and to have been decided by him. Some of these matters, as we have had occasion to suggest on a previous occasion, might more properly have been tried, after a foreclosure and sale in a proceeding for the distribution of the avails held in trust. That seems to have been the view taken, and we think correctly, by the able counsel who commenced the first action. If that course had been followed, there would have been less delay, perplexity and costs. The property could have been sold speedily, as a sale was unquestionably necessary, and when the avails were in the hands of the trustees they could have proceeded, under the authority of the court, to divide them among rightful claimants. But in fact another course was followed, and the referee has examined and passed upon the claims of the bondholders and holders of coupons before the sale of the property had been adjudged. In doing this, he seems to have tried the allegations set up in the complaint in the second action as matters of fact, as if there had been an answer. And we think that this was the intention of the stipulation. The parties would hardly have stipulated away a decision upon a demurrer, merely to have another decision thereon made by the referee. Such a course would have been meaningless. And it will be noticed that, in regard to both actions, the stipulation is that they are to be tried on pleadings and proofs. Of course there would be no proofs in the second action, if only the demurrer was to be argued. In our opinion, then, we see no reason for examining a point which was practically waived by proceeding with the trial, and by vacating the order, and which can only be material upon the question of costs.

On the merits of the case an appeal is taken by the plaintiff in' the first action in behalf of certain banks and parties, and also by certain banks in their own names. The questions to be' raised on the case seem to be confined to the rejection of certain coupons and certain bonds.

There is no judgment over for deficiency. The mortgaged premises are directed to be sold,' and the avails, after costs, etc., to be paid to the trustees of the first mortgage. From the avails the trustees are directed to pay certain bonds and coupons mentioned in the report of the referee, issued under the first mortgage, and to hold the balance to await the order of the court. It does not appear that the owner of the equity of redemption, or the trustees of the second mortgage, have appealed from the judgment on the merits. The trustees of the second mortgage appealed from the overruling of the demurrer in the second action. But that does not affect the merits. The appeals, therefore, are really from that part of the judgment which determines the distribution of the avails in the trustees’ hands.

The bonds secured by this mortgage were executed by Hathorn, payable in ten equal annual payments with interest. The coupons attached to each bond were for the respective installments of principal and for the- interest on unpaid principal, and were payable at the First National Bank, New York.

About September 1, 1874, the Ballston Spa National Bank entered into a written agreement with Hathorn and with Hathorn & Southgate. They gave their notes to the bank for $15,000, which were discounted in the ordinary manner. And they signed an agreement stating that the bank had “ put into my (Hathorn’s) hands $15,000 for the purpose of purchasing of the present owners thereof the same amount of coupons secured by my bonds and the mortgage, etc., payable this day, which I (Hathorn) agree to apply to that purpose and no other ; said coupons to become the property of and to be delivered to said bank, and to remain a lien on said promises.” In pursuance of that arrangement, communicated to the Commercial Bank, that bank, about the 1st of September, 1874, cashed certain coupons to the amount of $14,569.20, for which amount Hathorn drew on the Ballston Spa Bank, 'in favor of the Commercial Bank, on or before September 8, 1874. The money thus advanced by the Ballston Spa Bank has not been repaid. The bondholders who received the cash for these coupons received the same, as they had done in former years, supposing the coupons to be paid thereby.

The question is, as between the Ballston Spa Bank and the bond-holders, did the bank pay these coupons on Hathorn’s behalf, or buy them on its own ? The written agreement is distinct on that point. Hathorn, the mortgagor, borrowed the $15,000 of the bank, giving the security also of Southgate. The borrowed money then became his. He drew for it by his check. He agreed to apply it to these coupons, and he did so. An application by Hathorn of Hathorn’s money to Hathorn’s debt was a payment. That he should agree with the bank that, after he had paid his debt, they might hold his paid debt as security for their loan to him might be good between him and them, but could not be good against others. (Harbeck v. Vanderbilt, 20 N. Y., 395.)

In Union Trust Co. v. Monticello and P. J. R. Co. (63 N. Y., 311), Smith was not allowed to share pro rata, although he was not himself the mortgagor or debtor, but a volunteer. In Ketchum v. Duncan (96 U. S., 662), the firm of Duncan, Sherman & Co. had advanced money and bought coupons. They had not loaned money to the railroad company. The court in its opinion states, as beyond doubt, that the coupons were not paid with money or funds furnished by the railroad company, and that they were not paid by any one, in pursuance of an agreement made with tbo railroad company to pay for them, or on behalf of the debtors. But in the present case the' Ballston Bank lent the money to Hathorn, and he paid the coupons. It matters not that he did this through the Commercial Bank. That bank acted on his behalf, and the payment was his. The agreement expressly states that he was to apply the money to the purchasing of the coupons. And although he then agreed that they should be delivered to the bank, and remain a lien on the premises, yet they had in fact been paid. (Comm. of Virg. v. Ches. and O. Canal Co., 82 Md., 501.)

If the Ballston Bank had sued Hathorn on the coupons, it would have been a perfect defence that he had borrowed the money of the bank with which he had paid the coupons, and that his liability was only on his notes when they should become payable.

The facts in regard to the First National Bank of New York are similar. The coupons were payable at that bank. Hathorn applied to the bank for assistance and an advance of money to meet coupons coming due September 1, 1874. To obtain this, he gave his notes (or the notes of Hathorn & Southgate) at a short date, which were renewed from time to time. The amount of the notes was $20,000. In pursuance of this arrangement, the First National Bank of New York did advance money for the coupons of September, 1874, to the amount of over $20,000. To meet the excess over $20,000, Hathorn borrowed of the Commercial National Bank of Saratoga, on his note, some $8,000, and sent the amount to New York. This was upon a promise that the Commercial Bank should hold the coupons as security ; and the bank received and holds coupons to the’ amount of $8,783.40.

In August, 1875, the First National Bank of New York wanted the money which had been advanced to Hathorn for the coupons of September, 1874. And Hathorn made arrangements with the Commercial Bank to advance the money and to take up this $20,000; and he agreed to deposit money to apply on this $20,000. Hathorn did deposit with the Commercial Bank some $15,000 to apply thei'eon ; which amount, the Commercial Bank, with his consent, afterwards applied to other purposes. The Commercial Bank thus, about that time, received these coupons from the First National Bank.

In September, 1875, Hathorn again made a similar arrangement with the First National Bank, in respect to the coupons of September, 1875, giving his notes to the amount of $20,000; and the bank advanced somewhat more than that amount.

About August, 1875, Hathorn made a similar arrangement with the Commercial Bank of Saratoga, stating that he expected to make a loan during the fall, or to sell to Stewart, and agreeing with the bank that it should take and hold the coupons for a short time, not longer than till he went to Congress in December. He was to take them up before he went to Congress. No security was given to the bank ; and under this arrangement the bank took about $25,000 of coupons.

There seems to be no doubt that, in all these cases, the holders of the bonds received the money for their coupons in the same manner as if the coupons had been paid. There was no intention on the part of the bondholders to sell, and not to collect, their coupons. They were often deposited, in the usual manner of collecting such securities, with the bank where the bondholder did business. Although the coupons were payable in New York, it is well known that the ordinary method of collecting coupons, payable in another place, is to deposit them in a bank for collection. On being thus deposited they are passed to the credit of the depositor, and would be charged back against his account if not paid; and, therefore, there is not any evidence that the holders of these coupons intended to sell them. The counsel for the bond-holders offered affirmative evidence on this point, which the referee intimated to be unnecessary.

To make a sale or transfer requires two parties. One cannot be made a seller without his knowlege. A seller impliedly warrants the paper to be genuine. He cannot be drawn into this implied warranty without his consent. (Lancey v. Clark, 64 N. Y., 209.) The circumstances in regard to all these transactions we consider substantially alike. In whatever form the business was done it was practically a loan, made at Hathorn’s request, to him, for his benefit, and used by his direction in the payment of his debt. The coupons were therefore paid, not purchased. (Garr v. Martin, 20 N. Y., 306; Dodge v. Brown, 113 Mass., 324; Shumway v. Cooley, 9 Hun, 132.)

In the case of Haven v. Grand Junction R. R. and D. Co. (109 Mass., 88), cited by the appellant’s counsel, Kimball, the president of the company, had advanced money to pay the coupons ; but the security in that case proved sufficient to pay the whole debt, principal and interest; and all that the court decided was that Kimball’s claim for the coupons should be good, after the payment of the other mortgage creditors and other claims. And so, in this case, it was not held by the referee" that the banks might not have an equity after the payment of the other bondholders. It was only in respect to the other bond-holders that the claims of these banks were disallowed.

Another question presented is in' regard to certain bonds claimed to have been paid and then reissued. The facts that these bonds had been in fact regularly issued; that they were taken up by Hathoru and paid, and that after such payment they were pledged by Frank H. Hathorn to secure a loan to him, do not seemed to be questioned on this appeal. The appellant insists that, as the savings bank, the holder of these bonds, was not a party to the action, a judgment deciding that these bonds were not valid should be reversed.

The savings bank, it is stated in the points, presented these bonds for allowance. If this be so, then it would seem proper that the referee should decide on the claim. At any rate, it might be important to ascertain the extent of the mortgage debt in order to decree a sale. And it would seem to bo proper, therefore, that the trustees should have shown on the hearing how much was secured by the mortgage, as the plaintiff would do in any other action of foreclosure. The trustees, in behalf of their cestui que trusts, would prove the amount secured, giving probably an opportunity for any cestui que trust to give evidence on his own account. We do not thiuk, then, that the judgment should be reversed, merely for the reason that the savings bank was not a formal party.

If these bonds had been once paid in fact, the finding of the referee seems to be correct, .that they could not be lawfully reissued. The bonds were private, sealed instruments; speck alities, not promissoiy notes. The persons to whom Frank H. Hathorn transferred them took them subject to all equities, not only in behalf of Hathorn, but of third parties (Greene v. Warnick, 64 N. Y., 220), and certainly as to other bondholders they had been paid.

The judgment should be affirmed, with costs, in favor of the respondents and against the appellants (not the trustees), and the parties in whose interest the appeal was taken.

Present — Learned, P. J., and BoaedmaN, J.

Judgment affirmed, with costs, in favor of respondents against appellants (not the trustees), and against the parties in whose interest the appeal was taken.