text:
    Howe’s Cave Lime and Cement Company, Resp’t, v. Howe’s Cave Association, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Survevs — Action relating to real estate.
    An action to recover for an alleged unlawful entry on plaintiff’s premises, and for severing and removing valuable material from the soil, relates to real property, within the meaning of section 1682 of the Code.
    3 Same — Tunnel.
    Under the provisions of the above section, the court may direct a survey of a defendant’s premi-es through a tunnel under the surface as well as upon the surface.

      3. Same — Affidavit.
    An affidavit, which establishes the commission of a wrongful act on the part of the defendant, and that, unless plaintiff can make the survey applied for, he is practically remediless on account of liis inability to state or show tlxe amount of his damage, is sufficient to authorize the granting of such order.
    4. Same — Cbiminatin& evidence.
    Where it is nowhere alleged that the trespass was an intentional or criminal act, such an order does not compel the defendant to furnish evidence, which may be used against him on a criminal prosecution.
    Appeal from an order, directing that plaintiff be permitted to go on the lands and premises of the defendant for tho purpose of making a survey and ascertaining the boundaries thereof.
    Maynard, Gilbert & Cone (A. E. Gilbert, of counsel), for app’lt; Tucker & Mayham (C. F. Mayham, of counsel), for resp’t.
   Putnam, J.

— The parties are owners of adjoining lots of land at Howe’s Cave, H. Y., and engaged in the business of manufacturing lime, cement, and building stone. Plaintiff claimed that defendant had opened a tunnel on its land about twenty rods distant from the premises of the former, and through such canal reached the land of said company under the surface ; had trespassed thereon, and taken and removed therefrom a large quantity of valuable material. The affidavit of the manager of the plaintiff, used on the motion, states :

“That the deponent gained admission to said tunnel, and made some crude measurements therein, alone, and that in his opinion, based on the said crude measurements so made by him, the defendant has wrongfully and unlawfully taken out of said tunnel and used of the cement stone of this plaintiff covering a space of about three rods wide and forty rods in length, and of the height of about seven feet; that the length of said tunnel before it reaches the plaintiff’s lands, is about twenty rods, and that the actual amount of stone removed from plaintiff’s lands cannot be anything like accurately ascertained without a survey, and actual, accurate measurement and computation, made by a competent civil engineer and surveyor ; that the only way such survey and measurement can be made is by entering said tnnnel for said purpose, and that, in order to make such survey and measurements, competent engineers and surveyors and assistants will have to pass through defendant’s tunnel a distance of about twenty rods before reaching the lands of plaintiff, and that measurements of the length of said tunnel on defendant’s lands, and the courses and distances, will have to be taken by the said engineer or surveyor, and also measurements, distances, and courses on the surface of defendant’s lands will have to be made from the mouth of said tunnel to the lands of the plaintiff.'’

The plaintiff commenced this action to recover damages for the said alleged trespass and injury to its premises, and obtained an order that plaintiff might enter upon defendant’s premises to make a survey within the said tunnel and on the surface of defendant’s land, under the provisions of section 1682 of the Code of Civil Procedure, which reads as follows :

“If the court, in which an action relating to real property is pending, is satisfied that a survey of any of the property in possession of either party, or of a boundary line between the parties, or between the property of either of them, and of another person, is necessary or expedient, to enable either party to prepare a pleading or prepare for trial or for any other proceeding in the action, it may, upon the application of either party, upon notice to the party in 'possession, make an order, granting to the applicant leave to enter upon that party’s property, to make such a survey.” Defendant appeals from the order so granted, claiming that the provisions of section 1682 do not apply to this action.

It clearly appears from the moving affidavits that the action which the plaintiff has commenced relates to real property. On the trial plaintiff will be compelled to show its title to the premises in question, and also that defendant has trespassed thereon, and removed stone and material therefrom. An action of trespass against a defendant for entering on land of another, and cutting down and carrying away wood and timber, is placed, in the Code of Civil Procedure, among the actions relating to real estate. So this suit to recover for an alleged unlawful entry on plaintiff’s premises, and for serving and removing valuable material from the soil, must be deemed to relate to real property. But section 1682, supra, is contained-in article 9, tit 1, chap. 14, pt. 2, Code Civ. Proc., and the title of article 9 reads as follows : “Provisions Applicable to Two or More of the Actions Specified in This Title.” The learned counsel for the appellant urges : “That such an action as the moving papers show that plaintiff has commenced is not specified in title 1, supra, and hence the provisions of section 1682 do not apply. That the provisions of section 1682 are only applicable to an action specifically mentioned in title 1, as actions of ejectment partition, dower, or foreclosure; actions to compel the determination of claims to real property; actions for waste and nuisance. That the eighth article of title 1, entitled “Other Actions Relating to Real Property,” does not mention such an action as the one under consideration, although it does refer to actions of trespass of cutting down and carrying away wood or timber. The learned counsel therefore insists that- although section 1682 applies in the case of an action for trespass in entering upon land, and cutting down wood or timber, it will not so apply where the action is brought for trespass in entering upon land, and removing stone and material therefrom. As we have seen, the suit clearly relates to real property. We think the language of section 1682 should be deemed applicable to all such actions. There is no ambiguity in the provisions of the section. By its terms, it applies generally to an action relating to real property. It has been held that the title of a public act is no part of it. Jones v. Sheldon, 50 N. Y. 477. “We may resort to the title of an act for aid where the statute itself is doubtful or ambiguous, but not where the language is apt, or the construction plain.” In re village of Middletown, 82 N. Y. 196-199; People v. O'Neil, 54 Hun, 610, 611; 28 St. Rep. 87. The provisions of section 1682 being not ambiguous, acid applying generally to an action relating to real estate, we do not think that such provisions are limited by the title of article 9. This view as to the construction of section 1682 is the more reasonable one. For instance, under section 1665 of article 8, one seised of an estate in reversion or remainder could commence such an action as plaintiff has begun for an injury to his inheritance, and, it cannot be doubted, could obtain an order under section 1682, while the life tenant, if the position of counsel for appellant is well taken, commencing an action for a similar injury to his estate, could not claim relief under such section. So, in an action for a trespass and 'injury to land above the surface by cutting down trees, the provisions of section 1682 clearly apply; but, accoiding to the contention of the defendant, in cases of actions for trespass and injury to a freehold by removing stone and material under the surface, the statute does not apply. There seems to be no good reason why a party should not have the benefit of the section in question in the one case as well as the other. It will be observed that the" provisions of the section immediately preceding section 1682, supra, in terms, limit the application of the provisions therein contained to actions specified in title 1, supra, while section 1682, is made applicable generally to an action relating to real property. As there is no ambiguity in the section, and it appears applicable to all actions, we think it is not limited by the title of article 9. See People v. O'Neil, 54 Hun, 610 ; 28 St. Rep. 37; Mayor, etc., of City of New York v. Eisler, 2 Civ. Proc. R. 125.

It is also claimed that the survey which the court, by section 1682, is authorized to allow, is a surface survey, and that an entry into or survey of an erection or inclosure on the premises of a party cannot be allowed. But the section authorizes a survey of property in the possession of a party, and an entry upon his premises. The court may grant the applicant leave to survey any of the property in possession of the opposite party. “ Survey ” means “ to inspect or examine with reference to situation, condition or value; * * * to determine the boundaries, extent, position, etc.” Cent. Diet. The language of the statute seems to authorize the order in question. In a proper case, we can see no good reason why the court, under section 1682, may not direct a survey of the defendant’s premises through a tunnel under the surface as well as upon the surface.

In this case the moving afiidavi s, which were not contradicted, showed a state of facts which rendered the order granted by the special term proper. It appeared that defendant had entered upon plaintiff’s property by means of a tunnel started twenty rods from its line, and taken rock therefrom through said tunnel. It was shown to be impossible for plaintiff to draw its complaint, or prepare for trial, without an opportunity to survey the tunnel,, and correctly measure its courses and length. The moving affidavits made it appear that a survey of the property in the possession of the defendant was necessary and expedient, viz., of the tunnel through which it had entered on plaintiff’s property, and removed material therefrom. It is only by means of such a survey that the plaintiff will be able to properly prepare for trial. While the affidavits read on the motion show a trespass, they also show that plaintiff was ignorant of the amount of material taken by defendant from its premises, and the plaintiff can only ascertain such amount by being allowed to survey the tunnel. The order appealed from seems to be authorized by section 1682, and to be just and reasonable. The moving party established the commission of the wrongful act on the part of the defendant, and, unless plaintiff can make the survey applied for, it is practically remediless, being unable to state or show the amount of its damage. The case is not similar to that of Hardin y. Van Cortlandt, 84 Hun, 150; 65 St. Rep. 836. Here the manager of the plaintiff has entered the tunnel, and made crude measurements therein, and, on such measurement, reached the conclusion that defendant had trespassed upon, and removed material from, plaintiff’s lands. It is true, he is not certain, but, in the absence' of any contradictory deposition, his affidavit is sufficient to sustain the order.

It is suggested by the appellant that plaintiff is securing, by the order appealed from, the aid of the court to compel the defendant to furnish proof that may be used against its officers and agents in criminal proceedings, and upon the trial of indictments for larceny. It is sufficient to say, in answer to this position, that the papers in the case did not show the fact that the alleged trespass of defendant upon plaintiff’s premises, and the removal of material therefrom, was an intentional or criminal act. In the absence of any evidence in that regard, the action of defendant, of which the plaintiff complains, will be presumed done by accident or mistake, without any criminal intent. Again, the order does not compel defendant to furnish evidence to the plaintiff. It merely directs the defendant to allow the plaintiff to go upon defendant’s premises for the purpose of making a survey. We think the constitutional provisions and authorities cited by appellant to establish the fact that the order in question is in violation of the constitution of the state and of the United States do not apply.

The order should be affirmed, with $10 costs and disbursements.

Herrick, J., concurs; Mayham, P. X, not acting.


source: Caselaw Access Project

author: Mayham, P. J.

license: Public Domain

text:
    Caroline G. Ogier, as Administratrix, etc., Resp’t, v. Albany Railway, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Negligence — Unavoidable accident.
    The killing of a person, if it is the result of unavoidable accident on the part of the company in the movement of its cars, will not create a liability so long as it appears that the company is in the lawful and prudent use of the privileges conferred upon it by the franchise, which authorizes to operate its road. The plaintiff must, therefore, before a recovery can be had against the company in an action for personal injuries, establish some negligent or improper act or omission by the company which produced the injury in question.

      2. Same.
    The injury, in this ease, was held to be the result of an unavoidable accident.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Rosendale & Hessberg (S. W. Rosendale, of counsel), for app’lt; Countryman & Dubois (Edwin Countryman, of counsel), for resp’t.
   Mayham, P. J.

— This action was brought by the plaintiff, as administratrix, for alleged negligence of the defendant in running its motor car against und over plaintiff’s intestate, a child of the age of five years and three months. The defendant was a railroad corporation, owning and managing an electric street-railroad in the street of the city of Albany. While one- of its motor cars was passing along Central avenue, about three o’clock in the afternoon of the 27th of October, 1893, at a rate of speed of about four or five miles an hour, the plaintiff’s intestate, while' attempting to cross the street, was hit and killed by such car. The accident occurred at a point in the street where there was no street crossing or cross walk, at a locality where few pedestrians traveled upon or were accustomed to cross the street.

At the conclusion of plaintiff’s evidence, defendant’s counsel moved to nonsuit the plaintiff upon the following grounds: (1) That the plaintiff has failed to establish a cause of action. (2) The testimony fails to show that the deceased was free from negligence causing or contributing to the accident. (3) That the evidence fails to show that any negligence on the part of the defendant caused the injury, or that the negligence, of the defendant in any way caused or contributed to the injury of the deceased. (4) The plaintiff has failed to show that she, as the mother of the intestate, was free from negligence in the care of the deceased, and that there was no negligence on her part in causing or contributing to the accident in question. (5) That there is po evidence which would justify a verdict to be rendered from the plaintiff’s testimony as it now stands. (6) That the testimony fails to show any act of' carelessness or negligence on the part of the defendant, or any of its officers or servants, which caused or contributed to this accident. (7) The undisputed facts show that this child, over five years of age, suddenly came upon the track of this defendant, and within a short distance of its car, while in motion; that the injury and death, which was the result of it, was an inevitable accident, for which the defendant is not liable. (8) That the plaintiff was bound to show, before a recovery can be had, that she was free from negligence, and that the deceased was free from negligence, causing or contributing to this accident. This she failed to do. (9) The testimony fails to show that fact, but, on the contrary, shows that there was such negligence on the part of the plaintiff here, and of the intestate, causing or contributing to this injury, which would prevent a recovery. (10) The undisputed facts show that the accident which caused the death of the plaintiff’s intestate was the result of a sudden and unexpected occurrence, not to be anticipated by the motoneer of the defendant’s car, and hence there is no cause of action. (11) The act of the plaintiff’s intestate in running or coming in front of the defendant’s car, in motion, as the undisputed testimony shows, was such negligence as would prevent a recovery in the case. (12) That the act of the plaintiff, the mother of the deceased, in permitting the intestate to be at the place where the injury occurred, was such contributory negligence as to prevent a recovery. (13) That the testimony shows that the mother of the deceased was negligent in permitting the deceased to be at the place where the injury occurred, and there was such conduct on the part of the deceased, contributing to the accident, as would have defeated him in an action by him if he had been an adult. (14) That the knowledge of the mother of the deceased as to the fact that the place was a dangerous one in the street, by the fact of the frequent passing and repassing of the cars of the defendant, imposed an additional duty on her to prevent the intestate from being in a place of danger; and her permitting him to be between the tracks unattended was negligence, contributing to the accident, for which no recovery can be had. (15) That from the evidence no inference that can be indulged in is consistent with the exercise of that care and prudence required by law under the circumstances on the part of the deceased, or on the part of the plaintiff. (16) That the plaintiff has failed to give any evidence that the deceased was, as matter of fact, capable of exercising judgment or discretion. The motion was denied, to which the defendant excepted. At the conclusion of the defendant’s testimony, a motion for a nonsuit was renewed, upon the grounds above stated, and denied.

The first contention on the part of the appellant in this case is that there is a complete failure of proof to establish any negligence or wrong on the part of the defendant in the management of the car by which the injury was inflicted. Manifestly, the burden was upon the plaintiff to establish some negligent act or omission on the part of the defendant, which caused the injury, before the plaintiff could recover. The unfortunate killing of the boy, if it was the result of unavoidable accident on the part of the defendant in the movement of its cars, would not create a liability, so long as it appeared that the defendant was in the lawful and prudent use of the privileges conferred upon it by the franchise, which authorizes the defendant to operate its railroad. It is the duty, therefore, of the plaintiff, before a recovery can be had against the defendant, to establish some negligent or improper act or omission by the defendant which produced the injury complained of. The undisputed facts shown by all the evidence on the part of the plaintiff and defendant fail, it seems to me, to prove the defendant guilty of any negligence or want of skill or care in the management of its motor by which this unfortunate accident was produced. The car was moving down the grade on the southerly track, at a rate not exceeding five miles an hour, within all the evidence, — a rate of speed three miles less than the maximum speed at which it was permitted to move within the charter or city ordinance. It was running by its own gravity, the power having been taken off by the motorman, and the brakes were gently applied to prevent the car attaining too great a speed. One or two coal wagons were moving in front of the car in the same direction, and upon the same track upon which the car was running. Two coal wagons were going west on the southerly track, the forward wagon of which was opposite the motor. From behind that wagon the deceased rushed southerly upon the track upon which the motor was running, at a point not exceeding five feet from the forward end of the car. Up to that time, the evidence discloses that the presence of the child was unknown to the motorman, and he was hidden from the motorman’s view by the intervening coal wagon. The evidence discloses that, after discovering the child, the motorman did everything in bis power to stop the car, and thus prevent the injury, first applying the ordinary appliance of the brakes, and, fearing that ineffectual, reversing his power. All his efforts failed to save the child, and I think this must be regarded as one of the unavoidable accidents which sometimes occur, without fault, and against which the law furnishes no indemnity.

In Chrystal v. Troy & Boston Railroad Co., 105 N. Y. 164; 6 St. Rep. 833. it was held that:

“ A railroad company was not responsible even for an error of judgment of the engineer as to the speed of his train, or his ability to stop the train. All he is bound to do after the discovery of the peril is to use reasonable diligence and care to avert it.”

In Fenton v. Second A. Railroad Co., 126 N. Y. 627; 36 St. Rep. 385, the court, in reversing a judgment for the plaintiff in an action somewhat similar to the one at bar, uses this Jangage:

‘‘ Street-railway cars have a preference in the streets, and while they must be managed with care, so as not to carelessly injure persons in the street, pedestrains must, nevertheless, use reasonable care to keep out of their way. The unfortunate death of this boy was due to his own carelessness, or it was a pure accident; and, in either event, the defendant cannot be held responsible for it.”

The evidence in this case, from which the above quotation is taken, showed that the injured party fell upon the track twenty feet in front of the team drawing the car. and that the horses going at the usual rate of speed, would have reached him in two seconds, and that that was all the time the driver had to apply the brakes and arrest the motion of the car. It appeared in that case that he did what he could, but failed; and the court held the company not liable. In the case at bar the car was within five feet of the child before the motorman could see it. He holloaed, and the child undertook to retrace its steps. At the same time the motorman did all he could to avert the collision. Both failed in their efforts, and fatal consequences resulted, which, it appears to me, were unavoidable.”

This, perhaps, renders it necessary to examine the other point in the case, as to the contributory negligence of the mother, as it seemed to be conceded that the- child was non sui juris, and that, if negligence was imputable to the plaintiff on her intestate, it must be the negligence of the mother and not the child. I am of the opinion that, within the authorities cited by the learned counsel for the respondent, that was a question of fact for the jury, and properly submitted to them by the learned trial judge. But, as we can find no proof of negligence or improper conduct on the part of the defendant in the management of its car, we think the learned trial judge should have, upon the motion of the defendant nonsuited the plaintiff, and his failure to do so was error, for which this judgment should be reversed.

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

Putnam, J., concurs. Herrick, J., not acting.


text:
    Betsey Ketchum, Resp’t, v. James A. Holden, as Administrator, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Witness — Section 829 of the code.
    On a reference of a claim against decedent’s estate, the agent, who represented the decedent in the transaction, may testify for the claimant as to a convei'sation between himself and decedent.

      2. Same.
    Upon such reference for money alleged to have been paid by mistake, the testimony of the claimant as to the time when she first learned that the decedent had paid less than the full amount of the mortgage to the insurance company is not objectionable or improper on the ground that it is indirectly testifying to a transaction or communication with the deceased, oris testifying to a' non transaction which brings it within the prohibition of section 829 of the Uode.
    Appeal from a judgment in favor of the plaintiff.

      King & Ashley (H. P. King, of counsel), for app’lt; J. H. Bain, for resp’t.
   Mayham, P. J.

— Daniel B. Ketchum, being an agent of an insurance company, gave his bond to said company, with Austin H. W. Holden and William Mallory as sureties, for the faithful performance of Ketchum as agent. In December, 1894, Holden, one of the sureties was notified by the insurance company that Ketchum the agent, was short in his accounts, in an amount not definitely known, bnt supposed to be about $350. On the 17th' of December, 1894, the plaintiff executed and delivered to Holden her bond, and also a mortgage collateral thereto on property owned by her in the village of Glens Falls, for the sum of $350. The bond and mortgage were given to secure Holden against his liability as surety on ICetchum’s bond to the insurance company. The business was transacted, as appears by the evidence on the part of Holden, by Daniel A. Wilson, who was paid $38 by Holden for transacting such business. At the time of making arrangement, and the execution of the mortgage, it was understood and agreed that the mortgage was to indemnify Holden for any amount that lie might be required to pay as surety for Ketchum, within the $350, and that, if the amount fell short of that sum, the difference between the amount which he was compelled to pay and the $350 was to be indorsed upon the bond and mortgage. On the 24th of August, 1885, the plaintiff borrowed $500 of one Ordway, and in order to give a clear title, placed that amount witli Judge Cheritee, as her agent, with directions to satisfy Holden’s claim, so that her mortgage to Ordway should be a first claim. At that time the amount of Holden liability on Ketchum’s bond to the insurance company had not been ascertained, and Oheritree paid the whole amount of the mortgage to Holden, who at that time was ignorant of the amount of his actual liability to the insurance company, as was also tin's plaintiff and Oheritree. Subsequently, the amount of Holden’s liability on the bond was liquidated with the insurance company; and on such liquidation, it appeared that Oheritree had paid Holden $85 more than sufficient to indemnify Holden for the amount of his liability to the insurance company as surety on the bond. Holden having died, and this defendant having been appointed his administrator, the plaintiff presented a claim against the estate of Holden to the administrator for this sum of $85 and interest, claiming that that money was paid by mistake, and under the agreement between hévself and the agent of Holden at the time of the execution of the bond and mortgage, she was entitled to that amount from his estate. The administrator rejected the claim; and refused to allow the same and upon that rejection, a referee was agreed upon, with the approval of the surrogate; and upon the hearing of that reference, a report was made in favor of the plaintiff for the $85 and interest. That report was confirmed, and the plaintiff, upon such confirmation, had judgment against the defendant, as administrator, for that amount, together with the costs of the action. From that judgment the appellant appeals. The referee found substantially the above-recited facts, and as a conclusion of law from those facts makes the following finding: “I find as a conclusion of law, that the overpayment to the said Holden of $85 was by mistake, and want of knowledge of the facts; that the plaintiff is entitled to recover said sum, and interest from the time of payment. Judgment, with costs, is ordered accordingly.” This report was signed bjr the referee.

From the evidence in the case, the referee’s finding of facts seems to be fully sustained. On the trial, some objections were taken to evidence offered on the part of the respondent Daniel A. Wilson, who assumed to act as agent for Holden in obtaining the mortgage was called by the respondent, and was asked to narrate conversation between him and Holden. This objected to by the appellant, on the ground that his testimony was inadmissible, under section 829 of the Code. We see no force in that objection. Wilson was not a party to the action; nor does it appear that he was interested in the event of the action. As the agent of Holden it was clearly competent, it seems to me, to prove Holden’s declarations by him.

It is also insisted that the referee erred in refusing to strike out that portion of the testimony of the respondent wherein she states that Wilson informed her, after the death of Holden, what amount Holden had in fact paid to the insurance company, and that was the first information she had of that amount. This evidence was not objected to, but, after it was given, the appellant moved to strike it out. While technically such evidence might not have been competent, if objected to before it was given, yet, in view of the remote bearing, if any which it could have upon the merits of this case, and the fact that the objection came too late, we do not think it such an error as would justify the reversal of this judgment.

It was also objected that the testimony of the respondent as to the time when she first learned that Holden had paid less than the full amount of the mortgage to the insurance company was objectionable and improper, on the ground that it was indirectly testifying to a transaction or communication with Holden, or was-testifying to a nontransaction, which brought it within the prohibition of section 829 of the Code. We do not think the evidence involved any personal transactions with the deceased; nor was it that class of evidence held to be objectionable on the ground that it proves the want of a transaction with the deceased. We can see nothing in the evidence which renders it illegal, —for which the judgment should be reversed. On the whole case, we find no error committed by the referee which would authorize this court to reversed the judgment.

J udgment affirmed, with costs of this appeal against the administrator, as such, to be paid out of estate.

All concur.


author: Fursman, J.

text:
    William Henry Allen, App’lt, v. St. Lawrence County Farmers’ Insurance Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    In súbanos — Fibe—Agent.
    Where the only authority of an agent is to solict insurance, and the application informs the applicant, in terms, that the company will not be bound until it is approved by a director and received at the home office, the mere declaration of such agent that the insurance begins at the monent the application is signed, cannot bind the company, where it has no knowledge of the application nor of the risk proposeu.
    Appeal from a judgment entered on a nonsuit

      Keeler & Russell (John C. Keeler, of counsel), for appl’t; Thomas Sprait, for resp’t.
   Fursman, J.

— The defendant is a co-operative insurance company, organized under chapter 573 of the Laws of 1886. The first section of this act requires that every person insured in any company organized thereunder shall sign a written application for such-insurance “as required by the articles of the association and bylaws of the company, and thereby become a member thereof.” The company, at its annual meeting, in January, 1891, resolved that there should be placed on every application a notice that such application would not be binding on the company until signed by an agent or director, and received bv the secretary at Ggdensburgh. On May 9, 1892, the plaintiff applied to one Crandall, a solicitor for defendant, for insurance on his dwelling house and household furniture, etc., and thereupon, in pursuance of the requirements of the statute and the resolution above cited, signed a written application, containing a statement that the application must be submitted to some director of the company, and approved by him, and the approval signed by him. This application con-' tained also a distinct notice in these words: “Notice: This application will not be binding upon the company until signed by an agent or director, and received by the secretary at Odgenburgh, N. Y.” On signing the application, plaintiff paid the solicitor $1.50; and, upon inquiry as to when his insurance commenced, he was answered, “Now.” The five occurred the same night, before the application had been approved by any director of the ■company, or received by the secretary at Odgenburgb. Of course, no policy was ever issued to the plaintiff; but he now seeks to recover the amount of insurance agreed upon between him and Crandall (the solicitor), on the ground that the answer of Crandall, above quoted, that the insurance began immediately on plaintiff’s signing the application, amounted to an actual insurance by the company.

The application signed by the plaintiff informed him that the company would not be bound until some director or agent of the company had approved it, and it was received at the office in Ogdensburgh. There is no proof that Crandall had any authority to make any other or different agreement than that provided for in the by-laws and requirements of the company. Indeed, there is no proof that he-had any authority to make an agreement whatever for insurance, or to do anything beyond soliciting and receiving applications for insurance. He did not appear to be clothed with authority to contract for the company. He was not provided with policies, and did not deliver any. The plaintiff must have understood that the policies were only issued by the company from its office in Ogdensburgh, and that an insurance was not effected untill his application reached there, and was acted upon. The mere declaration of Crandall that the insurance began at once was ineffectual to bind the company. It was wholly unauthorized, and the plaintiff had no right to accept or rely upon it in the face of the declaration contained in the application that the company would not be bound until the receipt of the application at the office in Odgensburgh. The power of the agent being apparently limited, the plaintiff was bound to inquire concerning the extent of it before trusting to it. Alexander v. Cauldwell, 88 N. Y. 480. See, especially, page 485. Crandall had only power to receive proposals for insurance. He could not create insurance, nor in any way designate the time when insurance should begin. Bush v. Insurance Co., 68 N. Y. 531.

The case is quite different from Ellis v. Insurance Co., 50 N. Y. 402, and kindred cases cited by counsel for plaintiff. In those cases there was an unrestricted right in the agent to issue policies, which to that end were furnished him by the company already signed by its officers, and the agent had authority to effect an immediate insurance by filling out and delivering a policy already duly executed by the officers of the company. Here the agent, was a mere solicitor for insurance, and wholly unauthorized to contract for the company. The case of Van Loan v. Association, 90 N. Y. 281, is not applicable. There the company was organized under the act of 1857, as amended in 1858 and 1861. Those acts did not require a written application to be signed by the party seeking insurance, nor was there any notice to the applicant that the insurance would not begin until the application was approved by some authorized agent of the company. The plaintiff applied for insurance to one of the directors of the company. A survey was made, and taken to the secretary of the company, who found it satisfactory, and entered it on the books of the company. The policy was not issued, solely because plaintiff's first name was unknown, though the company was immediately ready to issue it, •and only waiting to learn the full name of the party insured; The action was to compel the company to issue a policy after a fire had occurred. There was an application for a policy, and a clear acceptance thereof, not by an unauthorized agent, but by the company itself. The opinion at general term (approved by the court of appeals) puts the decision expressl}? upon the ground that the company had accepted the application for insurance. In the present case the only authority of Crandall was to solicit insurance •and the application informed the plaintiff, in terms, that the company would not be bound until it was approved by a director, and received at the home office. The mere declaration of an agent having such limited authority that the insurance began at the moment the application was signed cannot bind the company having no knowledge of the application nor of the risk proposed. It cannot be that a party who has not clothed an agent with either a real or seeming authority can be bound by the simple declaration of such agent that it is bound. We therefore think that the learned trial judge was right in granting the' motion for a nonsuit, and this renders it unnecessary to examine the several rulings as to the admission or exclusion of evidence.

The judgment should be affirmed, with costs.

All concur.


author: Putnam, J.

text:
    The People ex rel. New York Central and Hudson River Railroad Company, App’lt, v. Frank Campbell, as Comptroller, etc., et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Taxes — Review—Petition.
    Where the person signs the petition for the revision of a franchise tax under section 19, chap. 463 of 1889, and is mentioned in the affidavit of verification, it is not necessary for him to sign the latter.
    2 Same — Verification.
    The effect of the affidavit of verification is not impaired because of the words “to the best of his knowledge and belief,” at the end thereof.
    3. Same — Petition.
    A petition, in such case, which states that the petitioner has obtained the figures appearing in his statement from the corporate records and books and believes them correct, and, in the affidavit of verification, says that the-facts set forth in the petition are correct and true, furnishes sufficient competent evidence to justify the comptroller in revising the franchise tax,
    4. Same — Franchise.
    Such part of the capital stock of a railroad company as is invested in freight cars permanently engaged out of the state is not subject to thefrancliise tax.
    6. Same — Capital stock.
    The stock of foreign corporations, in which a portion of the capital stock of a company is invested, is not capital stock used in the state.
    6. Same.
    Bonds of foreign corporations held by a corporation are not a part of its capital stock employed out of the state.

      Geriiorari to review the proceedings before the comptroller, relating to the revision and readjustment of taxes assessed against a corporation.

      T. E. Hancock, Atty. Gen. (G. D. B. Hasbrouck, Dep. Atty. Gen., of counsel), for the people; Parker & Fiero (J. Newton Fiero, of counsel), for Frank Campbell, late comptroller; Nathaniel W. Norton, for Comptroller James A. Roberts.
   Putnam, J.

— The New York Central & Hudson River Railroad Company for the years 1885-91 made the annual report required by chapter 542, Laws 1880, and the several acts amendatory and supplementary thereto, and paid the tax required by said statute on its franchise or business. It will be seen by an examination of its reports contained in the case, on which the annual franchise tax was computed, that it failed to state in either the amount of its capital stock employed within the state, as required by chapter 151, Laws 1882, as amended by chapter 501, Laws 1885. The comptroller therefore assessed the corporation, for each year above mentioned, upon its full capital stock, and the tax by him assessed was duly paid. On or about November 29, 1893, in pursuance of the provisions of chapter 463 of the Laws of 1889 (section 19) the said corporation applied to the comptroller for a revision or readjustment of said franchise tax so assessed for each of the years above mentioned. The application was made by a petition or communication to the comptroller purporting to be made by the New York Central & Hudson River Railroad Company and signed by J. Oarstensen, its comptroller. The verification was not signed by said Oarstensen, and was as follows:

11 State of New York, Oity and Gounty of New York, ss.
“John Oarstensen, being duly sworn, and being duly know to me as the comptroller ofcthe New York Central & Hudson River Railroad, states that he is said comptroller, and that the facts set forth in the foregoing statement are correct and true, to the best of his knowleege and belief.
“ (L. S.) D. W. Pardee, Notary Public, Kings County..
“Cert, filed in New York county Nov. 28, 1893.”

The application for a revision was heard and granted. The comptroller allowed the railroad company the following credit upon its tax for the years above mentioned: 1885, §10,749.93 ; 1886, §12,455.71; 1887, $13,179.81; 1888, $13,430.60; 1889, $12,381.06; 1890, $12,735.13; 1891, $12,795.24 — a total of $87,727.48. The matter comes before this court upon a certiorari issued pursuant to the provisions of section 20, chapter 463, of the Laws of 18189. The learned attorney general urges that the statement of the railroad company used before the comptroller on the revision was not properly verified, and was not evidence of the facts therein stated, and that the comptroller had no sufficient proof before him to justify the correction of taxes which had been duly assessed and paid; also that no notice of the application for the revision was served upon the attorney general according to the previous practice of the.comptroller’s office; also that certain bonds owned by the corporation during the years in question were illegally held by the comptroller to be a part of its capital stock employed out of the state.

As to the objection that the petition for the revision signed by J. Oarstensen, the comptroller of the railroad, was not properly verified, we are of the opinion that Mr. Oarstensen having signed the petition, and being named in the affidavit of verification, it was not necessary for him to sign the latter. Haff v. Spicer, 3 Caines, 190; Jackson v. Virgil, 3 Johns. 540. Nor was the effect of the affidavit of verification impaired because of the words to the best of his knowledge and belief,’’ at the end thereof. Pratt v. Stevens, 94 N. Y. 387.

By the petition of the railroad company signed by Oarstensen it appears that he had examined the records kept by the company, and that during the years in question, as shown by the said records, a certain amount of the capital stock of the railroad -company was employed out of the state. It is claimed by the appellant that there was no proof before the comptroller that the books and records of the railroad company were correct, and hence there was no competent evidence before him to justify the revision. As we understand the petition and affidavit, Mr. Oarstensen states in the petition that he had obtained the figures appearing in his statement from the records and books, and believes them correct, and in the affidavit says that the facts set forth in the petition are correct and true. We think that in such a case the papers were sufficient to authorize the determination of the comptroller.

In reviewing a decision of the comptroller under the provisions of the act of 1889 we are not governed by the same rules as are applicable on an appeal from a judgment entered in an ordinary action of law. The strict rules of evidence applied in actions do not govern on a proceeding before the comptroller. He may receive affidavits as evidence. People ex rel Oak Hill Cemetery Assn. v. Pratt, 129 N. Y. 68; 41 St. Rep. 244. The comptroller is in fact an assessor, and may determine the matter submitted to him upon evidedce which would not be deemed admissible in a Common-law action. People ex rel Roeblings Sons Co. v. Wemple, 138 N. Y. 583; 33 St. Rep. 297.

On the application for a revision, the railroad company submitted a statement taken from its records as evidence. As said in People ex rel. Oak Hill Cemetery Co. v. Pratt, 129 N. Y. 71; 41 St. Rep. 244, the case shows that the comptroller received the petition as evidence of the facts therein set forth, and it does not appear that any one objected to it as competent. The comptroller might have required further proof, but he was satisfied that the statement taken from the books of the company showed the actual amount of its capital stock employed out of the state. In his return he says:

“ The Hew York Central and Hudson River Railroad Company submitted evidence to the comptroller which showed the employment of a portion of its capital stock out of the state, and how much thereof was so employed, and the comptroller thereupon resettled the accounts of such company so as to confine the tax to-the capital stock employed within the state of Hew York, as required by law. * * * The evidence submitted satisfied him of the truth of the facts alleged, and warranted him in entering the order correcting the error in the accounts as theretofore settled.”

We suppose, as a matter of fact, that the reports made to the comptroller by corporations in pursuance of the act of 1880 are usually drawn from their books and records. It is difficult to see how otherwise corporations could make a report required by the act. Had this railroad company, in making its annual reports for the years, given the amount of capital stock employed out of the state, and so stated, from statistics contained in its books, and records, the comptroller undoubtedly would have been authorized to deduct the amount of capital stock so said to be employed out of the state from information derived from the books of the company. We see no reason to doubt that, on the motion for a revision of an assessment on account of a mistake as to the amount of capital stock employed in the state, the comptroller may also rely upon information derived from the books of the company. We are of opinion that the comptroller may usually determine for himself what evidence he requires of the facts, on the motion for a revision; that it was competent for him to rely upon the books and records of the company showing the amount of its property employed out of the state, and that this court cannot properly reverse the finding of the comptroller on the ground that it was based on such evidence.

The objection is also taken to the revision made by the comptroller on the ground that no notice of the application for a revision was given to the attorney-general, according to the usual practice. It is sufficient to say, in answer to this position, that the return in the case of Comptroller Campbell controverts the affidavit of Charles E. Kilmer in regard to the existence of such practice in cases of revision, when the application therefor is made subsequent to the payment of the tax. The statement from the records of the Hew York Central and Hudson River Railroad Company which the comptroller received in evidence, and which we think he had. in his discretion, a right to regard, as to the amount of the capital stock of the company employed out of the state during the years in question, showed that during each of said years a large number of freight cars were permanently occupied out of the state, and that the company also had a portion of its capital stock invested in the stock of foreign corporations, and also in corporate bonds. It does not require a discussion or citation of authorities to show that such part of the capital stock of the railroad company as was invested in freight cars permanently engaged out of the state was not subject to the franchise tax, under the provisions of chapter 542, Laws 1880, and the acts amendatory and supplementary thereto. Pullman Palace Car Co. v. Pennsylvania, 141 U. S. 18; Com. v. Delaware, L. & W. R. R. Co., 145 Penn. St. 96. It is equally clear that the stock of foreign corporations in which a portion of the capital stock of the company was invested was not capital stock used in the state. People ex rel. Edison E. L. Co. v. Campbell, 138 N. Y. 543, 546; 53 St. Rep. 184. We therefore think that the comptroller was justified in making the revision he did of the tax assessed against the railroad company, as far as it was assessed on that portion of the capital stock of the corporation invested in freight cars permanently engaged out of the state and in the stock of foreign corporations.

We however are unable to agree with the comptroller that the bonds of foreign corporations held by the Hew York Central and Hudson River Railroad Company were a part of the capital stock employed out of the state. The amount allowed by the comptroller on account of such bonds during the years in question is stated to be $13,560.15. Hothing appears in the case to show that those bonds were employed out of the state. In People ex rel. Edison E. L. Co. v. Campbell, 138 N. Y. 547; 53 St. Rep. 184, it is said, a similar question arising in that case to the one under consideration: “ Those bonds were presumably held at its office in this state, and such bonds, as well as all choses in action, unless kept, employed, or used outside of the state, have their situs at the domicile of the owner.” It is suggested by the learned counsel for the respondent that the clause in the opinion of Earl, J., above quoted, was obiter. We think, however, that the opinion of the eminent judge who delivered the opinion of the court of appeals cited may be considered an authority, and properly followed, although not absolutely necessary in the decision of the case in which it was written.

Our conclusion therefore is that the allowance made to the Hew York Central & Hudson River Railroad Company on the revision should be corrected, by deducting therefrom the amount allowed on account of capital stock invested in the bonds of foreign corporations during the years in question, and as so modified the decision of the comptroller should be confirmed without costs to either party. All concur.


author: Merwin, J.

text:
    Clara J. Brown, Resp’t, v. Sally Allen et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Damages — Failure oe title.
    Where the grantees in a deed, while in possession of the property, removed from the land a large portion of the standing timber, the damages to be allowed them or their representative, in case of failure of title, are such part of the original price as bears the same ratio to the whole consideration that the value of the land at the time of the eviction bore to the land with the timber thereon..
    3. Interest — Failure of vendor’s title.
    Interest on damages for failure of title runs only from the time of eviction or loss, unless there is a liability to the real owner for mesne profits prior to that time.
    $. Same — Time of eviction.
    The sale of land for taxes and the execution of a tax deed to the state constitute no eviction of a prior grantee, so as to start the running of interest on damages recovered by him against his grantor, so long as there is no assertion of "title, under the tax deed, against such grantee.
    "Appeal from a judgment entered on tlie decision of the court after a trial withoub a jury.

      Henry W. Bentley and E. McCarty, for app’lts; C. D. Adams, for resp’t.
   Merwin, J.

— When this case was last before us, we considered the question whether the trial court was justified in finding that the consideration for the bond in suit had totally failed, and therefore the plaintiff was not entitled to recover. It appeared that the grantees in the deed, while in possession of the property, removed from the land a large portion of the standing timber, which constituted the chief value at the time of the sale. Upon this situation, it was then said: “We are of the opinion that' the eviction in this case was but partial. The most valuable part of the real estate purchased had been enjoyed by the purchasers, and they have reaped the benefit of its removal and sale. Under such circumstances, the damages to be allowed them or their representatives should be only those that are commensuate with the eviction and their consequent loss. If allowed such part of the original price as bears the same ratio to the whole consideration that the value of the land at the time of the eviction bore to the land with the timber, they would receive all to which they are justly entitled. If some portion of the timber was removed after the title failed, as to that they might be liable to the present owners, and to that extent entitled to be allowed its value, in addition to the proportionate value of the land. We think the court erred in holding that the eviction of Allen & Rortham was total, that the whole consideration for the bond had failed,- and that the plaintiff was not entitled to recover thereon.”

In the decision now under review it is found that the eviction was on or about January 1, 1886 ; that the whole value of the premises at that time, and in July, 1874, was the sum of $1,071.42 ; that the whole value at the time of the purchase, in May, 1870, was the amount of the purchase price, being the sum of $3.171.40. There was also evidence tending to show, and from which it might have been found, that the value in 1874, and up to 1885 or 1886, with the the timber on, as it was in 1870, would have been about the same as it was in 1870. The court allowed the defendants, as damages for the loss sustained by the eviction, the sum of $1,071.42, and applied it on the bond as of January 1, 1886. The evidence sustains the finding as to the amount of the value in 1874 and 1886 ; and its amount, as appears from the findings, or may be inferred from the evidence, bears the same ratio to the whole consideration that the value of the land at the time of the eviction bore to the land with the timber on. The appellants, however, claim that the amount should be applied on the bond as of its date, on the theory that there was a failure of the consideration to that amount. The failure did not occur, or was not complete, until eviction, and up to that time the grantees had such enjoyment or use of the whole property as was contemplated by the parties at the time of the grant. A large portion, at least, of the timber was cut by them before the tax sale, on September 28, 1871; and for more than two years thereafter no one was in position to interfere with their possession, whatever it was. It has been held that without eviction there would be no defense to an action for the price. Lamerson v. Marvin, 8 Barb. 9 ; Farnham v. Hotchkiss, 2 Keyes, 9. In some case it is said that if the damages recoverable are equal to the purchase money and interest sought to be recovered, there is in substance a total failure of consideration, and it might be so pleaded. Talmadge v. Wallis, 25 Wend. 116. In Cowdrey v. Coit, 44 N. Y. 882, the main question was whether there was an eviction ; and, if so, the same result was deemed to follow, whether the defense was regarded as a failure of consideration or a counterclaim for damages. It was alleged in both aspects. In Dunning v. Leavitt, 85 N. Y. 30, the grantee received nothing, as the rents while she was in possession were in law received to the use of the real owners of the land. These cases do not, we think, reach the present one. It is not here a question of the failure of consideration, but what is the proper amount to be allowed for the loss to the grantees, and, that being ascertained, from what time should interest be allowed. Assuming the amount was properly ascertained, the interest was in effect allowed from the date of the eviction as found. Interest runs only from the time of the eviction or loss, unless there is a liability to the real owner for mesne profits prior to that time. 3 Sedg. Dam. § 981. There is no claim here that there is any such liability for mesne profits; so that when the defendants were allowed the amount of the loss as of the time it occurred, that would seem to be full compensation.

But the appellants further claim that, although the funding of the fact of eviction January 6, 1886, would be correct under our decision on the first appeal, still, under the facts as here presented, it should be held that as matter of law eviction took place as early as July, 1874. It is found by the trial court “ that in the month of July, 1874, said Emory Allen and Newton Northam, through their agents, duly notified said Marietta L. Brown and this plaintiff, and her agent and attorney in that behalf, that they had surrendered and abandoned the premises conveyed to them under the Brown deed aforesaid, because of the tax sales thereof, made September 23, 1871, as hereinbefore set forth.” It is not found that Allen & Northam had then in fact abandoned or surrendered the premises. At that time there was no one asserting title adverse to them, and their possession had in no way been interfered with. The premises consisted of six parcels. The tax sale was in September, 1871. A deed of one of the parcels was-executed by the comptroller to one Hungerford on October 30,, 1873. A deed of four others of the parcels was executed by the comptroller to the people of the state on Febuary 1, 1875/ No-deed of the sixth parcel seems to have ever been executed under the tax sale of 1871. No assertion of title appears to have ever been made under the deed to Hungerford, and none under the-deed to the people until 1885, by the forest commission. It appears that the purchaser of the sixth parcel, some time after the fall of 1878, but when it does not appear, assumed to sell the. hard wood on the lot. In October, 1877, all,,of the parcels were again-sold for taxes that had been assessed in or before 1870. All were bidden in by the state in March and April, 1881. Another deed appears to have been executed to the state, in pursuance of the sale of 1877, on the 31st of October, 1884. The forest preserve act was passed in 1885, by reason of which, and the acts-done under it, a constructive eviction was found to have been perfected on January 1,1886. - Prior to 1885 there was no assertion of title adverse to Allen & Northam, aud no one, therefore, to whom a surrender could be made that would operate to perfect a remedy on the covenant of the grantors. We fail to sqe how it can be said that as matter of law there was an eviction in 1874, or prior to the action of the forest commission. These considerations lead to an affirmance.

Jndgment affirmed, with costs.

All concur.


author: Per Curiam

text:
    Alexander Myers, App’lt, v. New York Central & Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    NEUMaENCE — Contributory.
    A person who is injured in attempting to board a train while it is moving at the rate of two miles an hour, even though the conductor told him to jump on, is guilty of contributory negligence.
    Appeal from a judgment, entered on a nonsuit, and from an order denying a motion for a new trial made on the minutes.

      D. P. Morehouse, for app'lt; D. G. Griffin, for resp’t.
   Per Curiam

— When this case was before us on a former appeal (82 Hun, 36; 63 St. Rep. 475), the judgment, upon a verdict in favor of plaintiff, was reversed, on the ground that the plaintiff was guilty of contributory negligence, and a nonsuit should have been granted on that ground. Upon the retrial now under review, a nonsuit was granted, it being said by the trial justice that in his opinion the facts were not in any material respect changed from what they were upon the former trial. We are of the opinion that the nonsuit was properly granted. The changes, if any, in the evidence, related to the proof on the question of whether the conductor of the train told the plaintiff to jump on. Assuming the conductor did so tell the plaintiff, the principle of Hunter v. Cooperstown, etc., R. R. Co., 126 N. Y. 18; 46 St. Rep. 367, would, we think, be applicable, and call for a nonsuit. The train here, 'according to the evidence on the part of the plaintiff, was going at about the rate of two miles an hour. In the Hunter Case the rate was from one to two miles an hour. In the Hunter Cuse the danger was apparent, and so it was here. We think the judgment should be affirmed.

Judgment affirmed, with costs.


text:
    William D. Hemenway, Resp’t, v. John S. Keeler, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Fraud — Essentials.
    A purchaser, in order to avoid, on the ground of false representations, his agreement to pay the indebtedness of the mercantile business which he assumed upon his purchase, must show not only that the representations were made, but also that they were made with knowledge that they were false, and for the purpose of deceiving him, and that they had that effect.
    Appeal from a judgment, rendered in favor of plaintiff.

      Thompson & Chapman, for app’lt; Elon B. Brown, for resp’t.
   Merwin, J.

— From May, 1890, until about February 1,1891, the plaintiff was engaged in a mercantile business in the village of Alexandria Bay, and had in the business contracted debts, four of which, to the amount of $271.83, are the subject of this controversy. On the 1st February, 1891, he sold an undivided one-half interest in the business to the defendant Russell, who took it subject to the indebtedness, and upon the agreement (which was part of the consideration of the transfer) that the new firm, at that time formed of Hemenway and Russell, should become liable for the debts referred to. The business was continued by the firm of Hemenway. & Russell to July 22, 1891, at which date the plaintiff sold his interest to the defendant Keeler, with consent of Russell, and thereafter the business was conducted by the defendants under the firm name of Keeler & Russell. At the time of this transfer, and as a part of its consideration, it was mutually agreed between plaintiff and Keeler, with the assent of Russell, that Keeler should take the place of Russell in the partnership, and that the new firm of Keeler and Russell should assume and pay all the debts and liabilities which the partnership of Hemenway & Russell had incurred, or for which they were liable. Thereafter the business was continued by the firm of Keeler & Russell, until March, 1892, when Keeler bought out Russell. The debts in question were not paid, and in January, 1892, the plaintiff was compelled to and did pay them, taking assignments thereof to himself. This action was commenced April 12," 1892, to recover of the firm of Keeler & Russell the amount so paid, and the plaintiff has succeeded before the referee. Russell does not defend. The defendant Keeler, in his answer, after denying some of the allegations in the complaint, sets up as a defense that at the time of the transfer to him, in July, 1891, the plaintiff, with the intent to cheat and defraud him, and for the purpose of inducing him to purchase the interest of plaintiff, falsely and fraudulently represented to him that the debts of the firm did not exceed $500, when, in fact, they exceeded $2,000; and that Keeler, relying on these representations, purchased plaintiff’s interest in the stock and business, and gave in exchange or payment therefor, the stage route or line between Alexandria Bay and Redwood, and a number of horses, wagons, sleighs, harnesses, and a United States mail contract, and assumed and agreed to pay $250, and no more, of the debts of the firm ; and that he has already paid more than that amount. The same facts are set up as a counterclaim, together with the allegation that he has paid $818.25 of the debts of the firm in excess of the amount assumed. The main question at the trial was over this defense and counterclaim, and the referee in effect found that they were not sustained by the proof. The appellant claims that this conclusion is against the weight of the evidence.

The burden was on the defendant to establish the fraud. It was necessary for him not only to show that the representations were made, but also that they were made with a knowledge that they were false and for the purpose of deceiving the defendant, and that they had that effect. Pryor v. Foster, 130 N. Y. 171; 41 St. Rep. 320. The proof on the subject w&i conflicting. There were surrounding circumstances, the bearing and force of which were important to be considered, and we are not, after a careful consideration of the evidence, prepared to say that the conclusion of the referee that the fraud was not established was not correct.

Our attention is called to several exceptions to rulings on evidence, but we find in them no sufficient ground for reversal. What the defendant had paid for a part of the stage property, without a specification of what part, or of the time he had purchased it, was not important; nor was it material what the general character of the goods in the store was in August, 1891. Changes had occurred since the transfer. The only fraudulent representations alleged were as to the amount of the debts at the time defendant purchased. The value of the stage property or of the stock, if involved at all, was only collateral. The defendant was allowed to show the value of the stage property and of the stock of goods at the time of the transaction.

Judgment affirmed, with costs.

All concur.


text:
    George H. Spring, Resp’t, v. Delaware, Lackawanna and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Nuisance — Unauthorized structure.
    The authority conferred on a railroad company to construct and operate its road does not empower it to erect coal bins in using which smoke, dirt and cinders are thrown on the adjoining premises; the owner of such premises may sue the company to enjoin the nuisance and for damages, and it is no defense, in such action, that it was necessary for the company to have its coal bins located where they were, or that in the management thereof it exercised all practicable care.
    Appeal from a judgment, entered in favor of plaintiff.

      Robert C. Turner, for app’lt; Judson A. Gibson, for resp’t.
   Merwin, J.

— The plaintiff, in the year 1890, was, and still is, the owner and in possession of a lot, with three dwelling houses thereon, on the east side of Baldwin street, in the city of Elmira. About December 1, 1890, the defendant, who, as owner or lessee, operated a railroad that passes through the city of Elmira, erected upon premises owned or leased and occupied by it in the city of Elmira, and situate opposite to and about fifty-seven feet distant from the plaintiff’s premises, coal bins or pockets for the use of its road, and has ever since maintained and used them. It is found that the structure containiug the coal bins or pockets is of the largest kind used by trunk-line railroads in the state for such purposes, is 650 feet long, including the incline trestle leading thereto, and- contains nine pockety, and is in constant use by defendant for storing hard and soft coal in the bins and coaling its engines therefrom, to the number of sixty or seventy engines per day; that the structure is within 300 or 350 feet from a very closely populated portion of the city of Elmira, and the premises on which the structure is situated are immediately opposite a portion of the city which has been all laid out into city streets, blocks, and building lots suitable for dwelling houses; that for the purpose of supplying the coal bins with coal, locomotive engines of the defendant, using soft or bituminous coal, draw cars heavily loaded with soft and hard coal up the steep incline leading from the railroad tracks into the bins, into which bins or pockets the contents of the cars are thrown ; that now, and ever since the erection of the structure, there necessarily is being and has been emitted from defendant’s engines using the bins, hurtful and offensive gases, sparks, smoke, soot, and cinders, and from the coal taken from and put in the bins, coal dust and dirt; that the gases, sparks, smoke, soot, cinders, coal dust, and dirt have been and are being borne by the wind upon and settle down upon and into the dwelling houses of the plaintiff, injuring the furniture and clothing therein, rendering the same unwholesome, uncomfortable, and unsuitable as a habitation; that on account of such gases, sparks, smoke, soot, cinders, coal dust, and dirt coming upon and into the premises of-plaintiff, the plaintiff has suffered irreparable injury, and the rental value of the premises has been reduced from $31 per month to $20 per month ; that the injuries to plaintiff’s premises are of constant repetition, and will be necessarily continued so long as- the structure of defendant shall remain and" be used as at present; that, on account of the continuous character of such injuries, plaintiff has no adequate redress by actions at law, and that a resort to such actions would lead to a multiplicity of suits. As conclusions of law it was found: (1) That the structure of defendant mentioned in the complaint, consisting of coal bins or pockets and trestle, as at present used, is- a private nuisance to plaintiff. (2) That the defendant, its officers, agents, and servants, should be perpetually restrained and enjoined from depositing in and taking from said structure coal in such moaner as to set afloat in the air and cast or deposit upon or into the premises of the plaintiff smoke,' soot, cinders, sparks, dust, or dirt. Judgment was accordingly ordered, together with the damages for the loss of rental value of the premises from December 1, 1890, to September 1, 1894, to the amount of $500.

The referee, in effect, finds that the defendant -had erected and was maintaining a structure which, as used by it, constituted a private nuisance to the property of the plaintiff. The evidence is," we think, sufficient to sustain this conclusion. But the defendant claims that the right to erect and use this structure in coaling its engines is necessarily and materially incident to the operation of defendant’s railroad, and therefore embraced within its franchise, and is not a nuisance, although it may operate as such ; and that the plaintiff has no remedy. The case of Cogswell v. N. Y., N H. & H. Railroad Co., 103 N. Y. 10; 3 St. Rep. 56, seems to be somewhat in point against that proposition. In that case the defendant erected upon a lot adjoining a dwelling house owned by plaintiff an engine house and coal bins for its road, and used the same in operating it, with results to the adjoining property quite similar to those in the present case. It was held that the engine house as used was a 'nuisance; that legislative authority to run its trains over the railroad was not a legislative sanction to the committing of such a nuisance; that an action was maintainable to recover damages, "and to restrain the nuisance; and that in such action it was no defense that it was necessary for defendant to have its engine house located where it was, or that in the management thereof it exercised all practicable care. It is said that “the statutory sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injCiry.” “It may have the right, which it claims, to acquire land by purchase for the accommodation of its business, but it must secure such a location as will enable it to conduct its operations without violating the just rights of others.” The defendant in the present case is a foreign corporation, and operates and uses the road and structures in question as lessee of the New York, Lackawanna & Western Eailway Company, a corporation organized under the provisions of chapter 140 of the Laws of the state of New York, passed April 2, 1850, and the laws amendatory thereof. Ho special legislative sanction is .shown for the structure in question. Prior to its erection in 1890, the defendant used a similar structure, though not so large or convenient, that was located in a place a considerable distance from the plaintiff; and its use did not interfere with the use of plaintiff’s property. The defendant, or its lessor, had other lands where the new structure might have been placed, though not so convenient. The doctrine of the Cogswell Case was approved in Bohan v. Port Jervis Gaslight Co., 122 N. Y. 27; 33 St. Rep. 246 ; Hill v. Mayor, etc., 139 N. Y. 502; 54 St. Rep. 797; Morton v. Mayor, etc., 140 N. Y. 212; 55 St. Rep. 413. And so it - was in Booth v. R., W. & O. Railroad Co., 140 N. Y. 267, 272 ; 55 St. Rep. 656, cited on the part of the defendant. In the Booth Case a distinction is pointed out between acts and uses of property which are permanent and continuous, and temporary acts resorted to in adapting premises to some lawful use. The question there considered related to the latter class of acts. In Flinn v. N. Y. C. & H. R. Railroad Co., 142 N. Y. 11; 58 St. Rep. 431, the Cogswell Case was not questioned, and the issue was unlike the one there and here involved. In Pettit v. N. Y. C. & H. R. Railroad Co,, 80 Hun, 86 ; 61 St. Rep. 718, it seems to have been held that the evidence was not sufficient to show that the structure complained of and its use was a nuisance, so that the doctrine of the Morton Case, 140 N. Y. 207 ; 55 St. Rep. 413, and kindred cases, did not apply. The principle of the Cogswell Case should, we think, be applied to the present case. Ho point is made by the defendant as to the amount of the damages awarded.

Judgment affirmed, with costs.

All concur.


text:
    Alice E. Rich, Plaintiff, v. Adelbert E. Rich, Defendant.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    I. Divorce — Foreign judgment.
    A judgment of divorce of the court of a state, where the plantifE resides, is binding on the defendant, though she resides in another state, if she appears in the action.
    •3 Same — Res adjudicata.
    The failure of a decree to provide for the maintenance of a child, where it allows alimony and costs to the wife and gives her the custody of the child till it is a certain age, without making any allowance for its support, amounts to a denial of a right to such maintenance.
    Controversy submitted, without action, upon an agreed statement of facts.

      C. L. Allen, for pl’ff; King & King (Edwin A. King, of counsel), for def’t.
   Putnam, J.

— The legal questions submitted in this case are so well settled that we deem it unnecessary to write an opinion. The defendant, being an actual and bona fide resident of the state of Hebraska, in April, 1886, commenced an action against the defendant, his wife, for an absolute divorce in the district court of Cass county, in said state a court of general and competent jurisdiction. The plaintiff then resided in Washington county, in this state. She voluntarily appeared by attorney in said action,, served an answer therein, and was sworn as a witness. The case was tried, and judgment for an absolute divorce was granted in favor of the defendant and against plaintiff, on the ground of desertion, in compliance with the laws of the state of Nebraska. No appeal has been taken from this” judgement, and it remains in force. It provided, among other things, that the marriage contract theretofore existing between the parties be, and the’same was dissolved, and that both parties were relieved from.the obligations thereof. Plaintiff having voluntarily appeared in said action, the judgment is to be considered in all regards the same as if plaintiff, at the time it was granted, was a resident of Nebraska. Hence, by the judgment of a court of general and competent jurisdiction, and having jurisdiction of the parties and subject matter, an absolute divorce has been granted, in pursuance of the laws of Nebraska, to the defendant. That judgment is as binding upon the plaintiff in this state as in Nebraska. Full faith and credit must be given in each stale to the judicial proceedings of every other state. Such proceedings have the same effect in every court within the United States as they have by law or usage in the courts of the state in which they are taken. Const. U. S., art. 4, § 1; Act Cong., May 26, 1790, chap. 11; Rev. St. U. S., p. 171, § 905. See, also, Hunt v. Hunt, 72 N. Y. 217 ; Jones v. Jones, 108 N. Y. 415; 13 St. Rep. 838; De Meli v. De Meli 120 N. Y. 485 -495 ; 31 St. Rep. 704; Kennier v. Kennier, 45 N. Y. 535-539. It follows, in answer to the first question submitted, that the plaintiff, Alice E. Rich, is not the lawful wife of the defendant, Adelbert E. Rich.

In answer to the second question propounded, we are of the opinion that the plaintiff cannot recover of the defendant any sum for the past education, .support, and maintenance of the infant child of the parties. ' In the judgment granted in the district court of Cass county, Nebraska, an allowance was made of $100 to the plaintiff for alimony, and she was also awarded costs. She was given the custody of the infant child of the parties until he attained the age of eight years. No allowance was made for his support and maintenance. The court could have made a provision for the maintenance of the child, but failed to do so. On the question under consideration, this case should be regarded the same as it would have been had the judgment of divorce been granted by the courts of this state. The law presumes that every question involved in the action in which the judgment was rendered — and the right of the plaintiff to an allowance for the maintenance of the child was one of those questions— was passed upon by the court and that the claim for such maintenance was decided adversely to the plaintiff. We think the judgment in the Nebraska court is a bar to plaintiff’s claim. The principle declared in Kamp v. Kamp, 59 N. Y. 212, prevents an allowance to plaintiff for the support and maintenance of the child of the parties.

Let a judgment be entered in pursuance of this memorandum and the stipulation of the parties, without costs. All concur.


text:
    John J. Sheldon, as Administrator, etc., App’lt, v. Rufus Heaton, Resp’t. (Two cases.)

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Limitation — Deposit.
    A cause of action for money left on deposit does not accrue until demand,
    3. Same — Due bill.
    An instrument, reciting “ Due S. $178,” is a promissory note due immediately, and the statute begins to run forthwith.
    3. Same — Pabol evidence.
    Parol evidence is inadmissible to show that such instrument is not payable immediately, but, by agreement of the parties, is not to be due till demand.
    4. Evidence — Presumption—Payment.
    The payment of a deposit will not be presumed, though thirty years-have elapsed since it was made, where the depositor died eight years after making the deposit, and no administrator was appointed till twenty-one years after that time.
    Appeal from a judgment, dismissing the complaint in each, case.

      William H. Dunn (T. F. Conway, of counsel), for app’it; James B. Stearns (G. H. Beckwith, of counsel), for resp’t
   Putnam, J.

— These cases were tried and may be considered together. The first above entitled action was brought to recover for money deposited with defendant, and for which he delivered to plaintiff’s intestate an instrument, of which the following is a. copy :

“$300.
“ Rec’d of Mrs. M. M. Sheldon, three hundred dollars on deposit- “ Rouse’s Point, August 20, 1864. R. Heaton.”

The action was commenced thirty years after the execution of the instrument. Mary E. Sheldon, the party to whom the paper was delivered, died on August 21, 1872, and plaintiff was appointed her administrator on May 2, 1893. Defendant, among other defenses, set up in his answer the statute of limitations as a bar to the-action On the trial the court below held that the statute of limitations had run against the demand of the plaintiff, that an action could have been brought at once on the instrument above set outr and the beginning of the action would have been sufficient demand, and the trial justice granted defendant’s motion for a nonsuit.

It seems quite clear from the written contract between the parties above set out, as well as from the oral evidence given on the trial,, that the transaction between the defendant and Mrs. Sheldon was a deposit, and not a loan. That there was no right of action against the defendant until after a demand, and hence that plaintiff’s claim was not barred by the statute of limitations. Payne v. Gardiner, 29 N. Y. 146; Smiley v. Fry, 100 N. Y. 262; Boughton v. Flint, 74 N. Y. 476-482. Hone of the authorities cited by the learned counsel for respondent conflict with the doctrine settled in Payne v. Gardiner, supra. In this case the parties, by their written contract, have said that the money which the plaintiff sues to recover was received as a deposit; hence it was not due until demanded, •and the action was not barred by the statute of limitations. ' It is possible that the plaintiff’s demand could have been defeated as stale, and presumed paid on account of the great lapse of time between the deposit of the money and the commencement of the .action. But it is held that the presumption of payment arising from lapse of time in a case where the statute of limitations has not run is not conclusive, but merely presents a question of fact for the jury. Macauley v. Palmer, 125 N. Y. 842; 36 St. Rep. 175. In Bean v. Tonnele, 94 N. Y. 381-385, Andrews, J., says:

“ In Jackson v. Sackett, 7 Wend. 94, many of the cases on- the presumption arising from lapse of time were referred to, and it was held, that the presumption was one of fact, and not of law, and that it was for the jury to draw the conclusion upon all the facts and circumstances of the case."

In Owen v. Calhoun, 29 St. Rep. 302, it was°said that the presumption of payment arising from lapse of time was one of fact; yet, where the evidence is such that the jury must give effect to the presumption, and a contrary verdict would- be set aside as against the weight of evidence, the court may dismiss the complaint and direct a verdict. In this case we are of opinion that the court was not justified in talcing the case from the jury under the doctrine stated in the case last cited. Plaintiff’s intestate, who made the deposit with defendant, died about eight years after the transaction, and from that time until the demand was made, immediately preceding the action by the plaintiff, there was no administrator of her estate, and hence no person who could have demanded the deposit of defendant; no person, in fact, to whom the defendant could have paid the money left with him by deceased. Hence the-case is subtantially the same as if only eight years had elapsed between the delivery of the money and the demand made of defendant. Under the circumstances, we think the presumption of payment arising from the lapse of time was not so irresistible as to justify the withdrawal of the question of fact from the jury. In Macauley v. Palmer, supra, we judge from the recitals contained in the report of the cause that the action was not commenced for over twenty years after the cause of action .accrued. In Boughton v. Flint, supra, the proceeding before the surrogate appears to have been had very many years after the money had been placed in the hands of the testator. Assuming, therefore, that there could arise a presumption of payment of a -claim for money deposited, not barred by the statute of limitations, and where no demand of payment had been made, owing to the lapse of time, we think that under the facts and circumstances appearing in this case the trial judge should have submitted the question to the jury. It follows that the judgment in the first above entitled action should be reversed, and a new trial granted ; costs to abide the event.

The second action was also brought to recover money deposited with defendant by plaintiff’s intestate and for which defendant gave her the following paper:

“$178.33.
“Due Mrs. M. M. Sheldon, one hundred and seventy-eight 33-100 dollars.
“ Rouse’s Point, April 29, 1863.
“ [Signed] R. Heaton.”

The defendant, in his answer, set up, with other defenses, the statute of limitations as a bar to the action, and the court below dismissed the complaint on that ground. The paper given by defendant to Mrs. Sheldon was a promissory note. Russell v. Whipple, 2 Cow. 536: Kimball v. Huntingdon, 10 Wend. 675; Sackett v. Spencer, 29 Barb. 180. And, no time of payment being mentioned, it was payable immediately. Cornell v. Moulton, 3 Denio. 12, 13. Therefore it appears that on April 29, 1863, the defendant and Mrs. Sheldon had a transaction by which the latter delivered to the former $178.33, and a written agreement was then made between the parties, by which defendant agreed to pay the sum advanced to Mrs. Sheldon immediately. Under the written contract deceased could sue at once without a demand. An action would have been a demand. We are of opinion that, the parties to the transaction in question having voluntarily entered into a written contract, their rights are to be determined by the writing, and its terms cannot be varied by paroi testimony. Plaintiff would not claim that it could be shown by paroi evidence that the defendant was to allow Mrs. Sheldon interest on the money advanced, or that it could be shown that there was an agreement that the money should not be paid for a year or more. Under the written contract the $178.73 advanced were payable immediately. Yet the plaintiff seeks to show by paroi testimony that the oral contract of the parties was that the money should not be paid until after a demand, which demand was not made' until over thirty years had elapsed. We are of the opinion that the terms of the written contract could not he varied by an oral agreement made at the time of its delivery. See Read v. Bank of Attica, 36 St. Rep. 894; 27 N. E. 250; Carter v. Hamilton, 11 Barb. 147 — 150. It follows that the trial judge disposed of the case properly on the trial, and hence that the judgment should be affirmed, with costs. All concur.


author: Dykman, J.

text:
    John B. Peirano, Resp’t, v. John L. Merritt, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Appeal — New trial in county court — Costs.
    A party, who recovers judgment upon an appeal from a justice’s court for a new trial in the county court, for a less amount than he recovered before the justice, is entitled to costs in the absence of an offer of judgment by either party.
    Appeal from an order taxing plaintiff’s costs.

      James B. Lockwood, for app’lt; Charles Haines, for resp’t.
   Dykman, J.

— This is an appeal from an order taxing costs of the plaintiff and respondent in this action, which was tried in the county court of Westchester county on an appeal from a justice’s court, demanding a new trial in the county court. No offer was made by either party to take or allow judgment to be taken for a certain sum. The plaintiff recovered a judgment in the court of a justice of the peace for $200 and costs. In the county court the plaintiff recovered a verdict of $1, and the court ordered the county clerk to tax the plaintiff’s costs, which was done at $63.06; and the defendant appealed to this court from the order directing such taxation. So it will be seen that the plaintiff recovered a judgment for more than $50 in the court of the justice of the-peace, and the defendant appealed to the county court, and demanded a new trial therein. Neither party made an offer of judgment as provided for in section 3070 of the Code of Civil Procedure. On the new trial the plaintiff recovered a verdict for $1, each party claiming that he was entitled to costs. The county judge decided that the plaintiff should tax his costs, and this appeal is from that order; and it involves the construction of section 3070 of the Code of Civil Procedure. That section, after providing for making an offer of judgment after an appeal to the county court, further provides:

“ Where an offer is made as above provided, the party refusing to accept the same, shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum offered-If neither party make an offer as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given shall be entitled to recover costs upon the appeal.”

Our conclusion is that this case falls within the last part of the section quoted, because no offer was made, and that the party in whose favpr the verdict was given was entitled to costs. That party was the plaintiff, and, therefore, the order allowing him costs was proper, and should be affirmed, with costs.

All concur.


author: Arnold, S.

text:
    In the Matter of the Estate of Wilson G. Hunt, Deceased.

      (Surrogate’s Court, New York County,

      Filed, February, 1895)

    Guardian — Ancillary—Bond.
    Where an ancillary guardian has given the security prescribed by section 2838 of the Code, it is not necessary for him to give the bond prescribed by section 2746 of the Code in order to obtain the legacies due his ward.
    Applications by an ancillary guardian of minor legatees for an order requiring the executors to pay over legacies due the wards.

      Parsons, Shepard & Ogden, for ancillary guardian.
   Arnold, S.

— Applications are made by the guardian of certain infants to whom ancillary letters have been granted by this court for the payment to it of legacies given by the will of Wilson Gr. Hunt to said wards. There is no opposition made, further than that the executors claim that it is doubtful whether they can safely make such payments until or unless the ancillary guardian gives a bond similar to that required under like circumstances from a domestic guardian, under section 2746 of the Code. The ancillary letters were granted, upon proof, among other things, that the applicant for same was the duly appointed general guardian of the minors, and had given the security described in-subdivision 1 of section 2838. It is to be assumed that such security was directed and given for the whole of the infants’ estates, including the legacies in question. While under the like conditions a domestic guardian would have to give an additional bond, it does not follow that the ancillary guardian must do so; and, unless there is some express or implied requirement of law calling therefor, it should not be required of it. I do not find any such requirement; but, on the contrary, section 2840 of the Code expressly provides that ancillary letters, if granted, shall be issued without security, and the ancillary guardian shall thereupon be authorized to demand and receive the personal property of the ward, and may remove same from the state. The receipt of the ancillary guardian in this case will be a full protection to the executors in paying over to it the legacies here in question.

Application granted. Submit order.