author: Dwight, J.;

text:
    In the Matter of the Petition of PETER PONTIUS.

      Trustees of dissolved corporations — power of the court to appoint a receiver on account of their delay in executing their trust —1852, chap. 861; 1855, chap. 54; 1870, chap. 151, sec. 8.
    Appeal from an order of the Monroe Special Term, appointing a receiver of the assets, funds, etc., of the Seneca Woolen Mills.
    The Seneca Woolen Mills was a corporation organized in 1844 under the general manufacturing laws of this State, and dissolved in 1855, under the Herkimer county act (Laws of 1852, chap. 361), which had been applied to this corporation by chapter 54 of the Laws of 1855. The appellants are the survivors of the trustees in office at the time of the dissolution, who by the provisions of the statute became thereupon trustees for the creditors to the extent of the debts, and for the stockholders for the surplus if any. (Act of 1852, supra, § 3.)
    The papers show that the trust has been substantially dormant since 1858, in which year the last of two assessments for a deficiency was made by the trustees; the only activity shown since that date being the procurement of an act of the legislature in 1866, which was intended to authorize the bringing of an action in the name of the corporation against all the stockholders and creditors, for the ascertainment of their several claims and liabilities, and for a completion and settlement of the trust; and the bringing of such an action in 1868. Issue was joined in that action by at least one of the defendants (the petitioner herein), in the same year. In 1871, an order was obtained dropping several of the defendants, and appointing a referee to hear and determine the action. In the same year a stipulation was entered into vacating the order for the dropping of parties, the further hearing of the cause was adjourned, and no further proceedings have been had in the action, nor, so far as appears, towards the execution of the trust.
    The order appointing a receiver was granted upon a petition showing delay and neglect on the part of the trustees in the execution of their trust.
    The court at General Term, after having held that the facts were such as to authorize the appointment of a receiver by the court, said: “ It is. objected that the order is contrary to the act of 1870 (chap. 151, § 3), which provides that a receiver of a corporation can be appointed only ‘ in a civil action.’ There are several answers to this objection ; a sufficient one is found in the last clause of section 5 of the act in question, which'provides that the provisions of the act do not apply to manufacturing corporations organized under the general manufacturing laws of this State. Another answer is, that the statute in question plainly contemplates an action against 'the corporation, which can be brought only when the corporation is in existence, not after it is dissolved, and it requires eight days’ notice of the application to be given to the proper officers of the corporation. In this case there is neither corporation nor officers of a corporation, but only statutory trustees, holding the property and assets of a dissolved corporation for the benefit of its creditors till tüey are paid, and the surplus for its stockholders. (Guylcenddll v. Douglass, 19 Hun, 577.) There is ample authority for this proceeding in the act under which it is taken. (Act of 1852, supra.) Section 3 provides that the trustees (so acting for creditors) ‘ shall be subject as such trustees to the control and direction of the Supreme Court upon their own application, or that of any creditor, and may be removed by the Supreme Court, which may appoint a receiver in their place on proper cause shown.’
    “This provision, moreover, contains an answer to a further objection made by the trustees’ appellants, namely, that the petitioner is not a judgment creditor, and therefore has not standing to maintain this proceeding. But it is apparent from the terms of the section just quoted (see. 3) that the remedy is not confined to judgment creditors. The language of the statute is, ‘ on the application of any creditor,’ and the reference is unquestionably to all those creditors for whose benefit the trust is created in the general scheme of the statute. These are necessarily in most instances simple contract creditors. The proceedings for a dissolution of the corporation áre presumably taken before any claims against it are put in judgment, and after the dissolution no judgment can be obtained against it.”

      Josiah T. Miller, for himself and others, trustees, the appellants.

      W. F. Cogswell, for the petitioner, respondent.
   Opinion by

Dwight, J.;

Smith, P. J., and IIardin, J., concurred. •

Order appealed from affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Hardin, J.;

license: Public Domain

text:
    JOSEPH QUIN, Respondent, v. THE CITY OF BUFFALO, Appellant.

      Gity — when it is liable to a contractor for the failure of the common council to have an assessment levied to pay the amount due to him — the fact that the plaintiff has assigned his claim is of no importance, if it has been reassigned to him before the commencement of the action.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for the alleged negligence of the officers of the defendant.
    The plaintiff performed labor upon Ferry street in the said city under the direction and employment of the street commissioners, and rendered his account to the street commissioner, who certified the same to be correct in all respects. Subsequently the common council adopted a resolution on the 23d day of December, 1878, audited and liquidated the claim at $94.50, and ordered an assessment to be made upon the property deemed benefited by said work, for the purpose of defraying the expense thereof. Thereupon an assessment was made by the assessors of the city, and the same was duly presented to the common council for its action, and the common council annulled the assessment by a resolution adopted May 12, 1879, which was vetoed by the mayor of the city on the 26th day of May, 1879. Thereafter the common council took no action in the premises (except to unsuccessfully attempt to pass the resolution over the veto of the mayor).
    The assessment was not confirmed, nor was another ordered by the common council. For such omission and neglect this action was commenced in September, 1879.
    The court at General Term said; “ When officers who are agents of a corporation, and not independent bodies, omit a duty, and their negligence causes damages to a party, he may maintain an action against such corporation to recover. (Conrad v. The Trustees of Ithaoa, 16 N. Y., 158.) If they refuse or neglect to put the proper machinery in motion, to raise the - necessaiy funds, or to put the claims presented in proper shape for liquidation and payment, then the law gives the creditor his remedy by action to compel payment. (Buck v. City of Lochport, 6 Lans., 254, and cases their cited; Ganson v. The City of Buffalo, 1 Keyes, 454; Tone v. Mayor, 70 id., 165 ; Moore v. Mayor, 73 id., 238.) Upon the trial evidence was given that the plaintiff had assigned his claim to one Demarest, and in answer thereto the plaintiff proved a reassignment to him before suit brought, and that he was owner of the claim for work and for damages arising from the negligence of the defendant.
    “ He was therefore the real party in interest, and the former ownership of Demarest did not stand in the way of a recovery by the plaintiff.” {Washoe Tool M. Go. v. Fire Insurance Compcmy, 7 Hun, 76; Code of Civil Pro., § 449.)

      Giles E. Stilioell, for the appellant.

      PTawlcins, Plumley dé Gibbs, for the respondent.
   Opinion by

Hardin, J.;

Mullin, P. J., and Smith, J., concurred.

Judgment and order affirmed.


author: Smith, P. J.;

text:
    ADAM FRIEDRICH, Appellant, v. H. AUSTIN BREWSTER and Another, Respondents, Impleaded, etc.

      One who purchases at a foreclosure sale, sulject to cm'tain judgments, cannot have them set aside as fraudulent.

    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    On the'29th of June, 1876, two judgments by confession, in favor of the respondents, were entered and made liens on certain real estate in the city of Rochester, owned by Martha A. Thorn and Mary A. Bell. On the 13th of July, 1876, the said owners of the real estate executed a mortgage thereon, which was assigned to the plaintiff. The plaintiff brought an action to foreclose the mortgage, obtained a judgment and sold the premises. The respondents were not made paities to the foreclosure suits. The respondent Brewster was present at the sale, and the referee who conducted the sale announced at the time that the premises were to be sold subject to the respondent’s judgments, and the plaintiff bid in the premises on that condition. The property sold for less than the amount due upon the mortgage, and the plaintiff took judgment for the deficiency. ’ •
    The plaintiff then commenced this action against the respondents, claiming that • the said judgments by confession were void, and asked to have such judgments declared liens subsequent to his mortgage and judgment, and to have the land released from the respondent’s judgments. The Special Term dismissed the complaint, holding that the respondent’s judgments were valid as between the parties to them; and that the premises having been sold to the plaintiff subject to the payment thereof, he is estopped from questioning their validity.
    The court at General Term said: “We have carefully considered the elaborate and ingenious argumenj submitted by the counsel for the appellant, but we see no reason to doubt that the judgment should be affirmed. The plaintiff having caused the premises to be exposed for sale under his decree, subject to the respondent’s judgments, and having bid them in on that condition, cannot question the validity of the judgments. The judgments were valid as between tbe parties to them; whether they were valid as against other creditors of the judgment debtors, it is not now material to inquire.
    “ Having notice of the judgments the plaintiff is presumed to have acted with knowledge of the contents of the record, including the confession on which the judgments were entered, and to have waived whatever defects existed in them. To permit him to avoid the judgments,-after having purchased subject to their payment, would be to enable him to practice a fraud at the expense of the other bystanders at the sale, and especially of the respondent Brewster, who, but for the condition announced, might have bid for the property enough to satisfy the judgments as well as the plaintiff’s mortgage. The principle which controls the case is recognized by the following authorities, among others: Sands v. Church (6 N. Y., 347); Horton v. JDmis (26 id., 495); Sherman v. Willett (42 id., 146); Freemam, v. Auld (44 id., 50).”

      George F. Bcmsum, for the appellant.

      Horace McGuire, for the respondents.
   Opinion by

Smith, P. J.;

Hardin, J., concurred; Dwi&ht, J., not sitting.

Judgment affirmed, with costs.


author: Smith, J.;

text:
    CHARLES A. SHEFFIELD and Another, Appellants, v. CATHERINE E. HAMLIN, Respondent.

      Action to recover money paid under a pcvrol contract entered into under a mistake— when it may be brought without first hawing the contract reformed — When a legatee may be sued for money received by him while acting as executor.

    Appeal from a judgment of nonsuit, entered on a decision rendered at the Oneida Special Term.
    The action is brought to recover money alleged to have been paid in excess of the cash value of certain goods sold by the defendant to the plaintiffs. The ground of the action is an alleged mistake of the parties, which consisted in supposing that a certain inventory of the goods made by one Wilson, stated the cash value of the goods, whereas the valuation contained in the inventory exceeded the cash value. The trial judge found that the contract to buy the goods was made by the plaintiffs with the said Wilson and the defendant as executrix of her deceased son, who had been a partner of Wilson, and that the defendant was represented in the transaction by her attorney, Miller. He also found that the price at which the purchase was made was the valuation contained in the inventory above mentioned, less certain deductions agreed upon by the parties and not the cash value of the goods as alleged in the complaint. The only finding which alluded to the subject of the alleged mistake was the following: “ That before the contract was made it was represented by Wilson that the inventory expressed the fair cash value of the goods, and it is claimed that this representation was believed and relied on by plaintiffs and Miller when the contract was made, and in regard to this representation and its truth the mistake, if any, happened.” There was no express finding as to whether there was a mistake in fact which led to or affected the contract, and the case was • disposed of by the learned judge without passing upon that question. His view of the case, as appears from his opinion, being that as the contract was not to pay and receive the cash price, less the deductions agreed' on, but was to pay and receive a particular sum fixed by the parties, it followed that the mistake, if there was one, was not in carrying out the contract as made, but in the inducement or consideration which led to the making of the contract, and consequently the remedy of the plaintiffs was to obtain a reformation of the contract; and until that was done this action could not be maintained. -
    The court at General Term said: “We think that view of the ■case is erroneous, the contract being in parol and not in writing an action to reform it is neither necessary nor proper. In a case of mistake in a written contract, the necessity for reforming the contract before seeking to enforce it according to the intent of the parties arises from the rule of evidence, that the written paper is to be treated as a full and correct expression of the intent, and it cannot be varied by parol; but where the contract rests in parol the intent of the parties may be shown by oral proof, and when the intent is ascertained it is to control.
    “ The alleged mistake was, therefore, a proper and a most material subject of inquiry in this case. "We have gone through the testimony, and in our judgment it would have warranted the conclusion that at the outset of the negotiations the plaintiffs and Miller believed that the inventory made by Wilson stated the cash value of the property. True, it appears that before the negotiations ended the plaintiffs discovered that as to some of the articles the valuation in the inventory exceeded the cost, and on that account a deduction from the price was agreed on. But if the parties continued to labor under their mistake in respect to the remainder of the articles, at the time when the final price was fixed and the contract was completed (and there is testimony tending to show that such was the case), the plaintiffs would be entitled to recover in this action the money paid by them over and above the cash value of the articles last above referred to, provided the action can be maintained in other respects; a point on which we express no opinion. * * *
    It is also insisted by the defendant that the action should be against her 'as executrix and not in her individual character, and also that Wilson should be sued with her. The answer to this, we think, is that if the money paid by the plaintiffs went into the hands of the defendant exclusively, with the consent of W ilson, it being hers individually by right, as the sole legatee of her son, who was entitled to the whole of it, as between him and his partner Wilson, the present action may be maintained against Mrs. Hamlin, she being the sole recipient of the money and the only person interested in the question whether she shall be required to pay it back. As has been said, the action is not . to reform the contract .to which Wilson was a party. The proof of the contract and of jhe mistake are only links in the chain of evidence which the plaintiffs give, tending to show that the defendant has received money from them which in equity she ought to restore.

      Beardsley, Burdieli <& Beardsley, for the appellants.

      F. G. Fineke, for the respondent.
   Opinion by

Smith, J.;

Talcott, P. J., concurred; Hardin, J., not participating in the decision.

Judgment reversed and a new trial ordered, costs to abide event.


author: Smith, P. J.

text:
    Thomas McCraith, Appellant, v. The National Mohawk Valley Bank, Respondent.
   Judgment reversed, and a new trial ordered, costs to abide the event. Opinion by

Smith, P. J.


author: Dwight, J.

text:
    James Gillies and others, Appellants, v. Larry Lewis and William H. Carter, Respondents.
   Judgment affirmed. Opinion by

Dwight, J.


text:
    Harlo Hakes, Appellant, v. John W. Roberts, Respondent.
   Order reversed, and new trial ordered, costs to abide the event. Opinion by

Dwight, J.


text:
    Luke Marvin, Respondent, v. Joseph Medbery, Appellant.
   Judgment reversed, and new trial ordered, costs to abide the event. Opinion by

Smith, J.;

Dwight, J., not sitting.


author: Hardin, J.

text:
    The People of the State of New York, Defendants in Error, v. Thomas Swan, Plaintiff in Error.
   Conviction and judg^ ment reversed, and new trial ordered in the Court of Sessions of Ontario county, and proceedings remitted to that court. Opinion by

Hardin, J.


text:
    The People of the State of New York ex rel. George H. Price, Supervisor, etc., Appellant, v. John S. Fowler and others, State Assessors, Respondents.
   Order appealed from affirmed, with costs. Opinion by

Hardin, J.


text:
    Katharine P. Chamberlin and others, Executors, etc., Respondents, v. Dorotha Rohr and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Dwight, J., not

sitting.


text:
    Dennis Mahoney, as Administrator, etc., Respondent, v. The City of Buffalo, Appellant.
   Judgment and order affirmed. Opinion by

Smith, P. J.


text:
    Charles Stebbins, Appellant, v. Albert P. Bennett, Respondent, Impleaded, with others.
   Judgment affirmed, with costs. Mem. by

Dwight, J.


text:
    John J. Landers, Respondent, v. The Frank Street Methodist Episcopal Church of Rochester, Appellant.
   Judgment affirmed. Mem. by

Smith, P. J.;

Dwight, J., not sitting.


text:
    Friend S. Esmond, Appellant, v. George M. Walling, Respondent.
   Judgment affirmed on opinion of

Rumsey, J., delivered at circuit.


text:
    Almerin Dunham, Appellant, v. The Trustees of the Village of Canandaigua, Respondent.
   Judgment and order affirmed. Opinion by

Hardin, J.


author: Mullin, P. J.

text:
    Frank H. Goodyear and others, Respondents, v. Benjamin W. Payne, and others, Appellants.
   Judgment and order affirmed. Mem. by

Mullin, P. J.


author: Smith, J.

text:
    William R. Seward, Trustee, etc., and others, Respondents, v. Burrall Spencer and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Smith, J.


text:
    John J. Betz, Appellant, v. Elias Davis and Eleanor Davis, Respondents, Impleaded, with others.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Hardin, J.


text:
    Archibald H. Gates, Appellant, v. Erank S. Hughson and others, Respondents.

   Judgment affirmed. Opinion by

Mullin, P. J.


text:
    James S. Cronkhite, Respondent, v. Jonas Cronkhite, Appellant.
   Judgment affirmed, with costs. Opinion by

Smith, J.


text:
    Lewis E. Smith, Appellant, v. William Phalen and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Mullin, P. J.


text:
    Charles A. Danolds, Respondent, v. The People of the State of New York, Appellant.
   Award of State Board of Audit affirmed, with costs and disbursements of this appeal to the respondent^ Opinion by

Mullin, P. J.


text:
    The First Reformed Presbyterian Church of York, Respondent, v. John L. Scott and others, Appellants.
   Order of Special Term affirmed, with ten dollars costs and disbursements, on opinion delivered by

Mr. Justice Macomber at Special Term.


text:
    George L. Marvin, Respondent, v. Le Grand Marvin, Appellant.
   Motion to strike cause from calendar denied, with ten dollars costs.


text:
    The Ansonia Brass and Copper Company, Respondent, v. L. R. Pratt, Assignee, etc., Appellant.
   Default opened on payment of ten dollars costs of the October term, and ten dollars costs of opposing this motion.


text:
    Hiram Dillenbeck, Respondent, v. Ambrose Gray, and others, Appellants.
   Motion for leave to appeal to the Court of Appeals granted, on the ground that the case involves questions of law which ought to be reviewed by that court.


text:
    Watson Gill v. The American Express Company.
   Motion for leave to appeal to the Court of Appeals, denied.

Hardin, J., not sitting.


text:
    The People of the State of New York ex rel. John Cashman v. Thomas P. Hedden and others, Referees, etc.
   Motion to dismiss appeal denied, with ten dollars costs.


text:
    Libertus Van Bokkelein, Respondent, v. Myron H. Mills, Appellant.
   Motion for reargument and for leave to appeal to Court of Appeals denied.

Smith, J., not participating in the decision.


text:
    Jacob Fisher, Respondent, v. Stephen M. Corwin, Appellant.
   Motion for reargument denied.


text:
    Emerson Day, as Commissioner, etc., of Town of Royalton, Appellant, v. Fayette Day, as Commissioner, etc., of Town of Hartland, Respondent.
   Leave granted to appeal to the Court of Appeals on the ground that the case involves a question of law which ought to be reviewed by that court.


text:
    Nancy E. Bradley, Administratrix, etc., Respondent, v. Nelson A. Mirick, Appellant.
   Motion for reargument denied. (See 81 N. Y., 260 ; 27 id., 9; 22 Wend., 526.)


text:
    Mary A. Warner, Respondent, v. Mary Henderson, Appellant.
   Motion for reargument granted.


text:
    Joseph E. McCormick v. The City of Syracuse.
   Motion for leave to appeal to the Court of Appeals granted, on the ground that the case involves a question of law which ought to be reviewed by that court.


text:
    Anna Mally, Respondent, v. The Village of Little Falls, Appellant.
   Motion granted, with ten dollars costs, with leave ■ to defendant to answer within twenty days, on payment of costs of the demurrer and of this motion.


text:
    John B. Lester, Respondent, v. Peter Crowley, Appellant.
   Motion to dismiss apipeal granted, with ten dollars costs, unless the appellant shall serve within ten days three printed copies of the complaint and answer used on the motion below, which have been omitted from the copies of the case served, and pay ten dollars costs of this motion, in which case the motion is denied.


text:
    Edward Hooper, Respondent, v. Samuel C. Cummings, Appellant.

   — Order reversed, with ten dollars costs and disbursements. Opinion filed with clerk of Onondaga county.


text:
    The People of the State of New York ex rel. Michael Auer, Appellant, v. Clayton C. Brown, Respondent.
   So much of the judgment appiealed from as imposes costs and disbursements upon Auer reversed, and , in all‘other respects the judgment affirmed, without costs of this apipeal to either party.


text:
    Elizabeth E. Oliver, Respondent, v. John N. Oliver, Appellant.

   — Order affirmed, with ten dollars costs and disbursements.


text:
    Jacob Williams, Respondent, v. Hannah Williams, Appellant.
   Order of Special Term affirmed.


text:
    John McLane, Respondent, v. Robert G. Dorr, Appellant.
   Judgment affirmed.


text:
    Emerson J. Cary, Respondent, v. The Massachusetts Paper Company, Defendant. Frank Ryder, Appellant, v. Philo Cline.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Petition of the Lockport and Buffalo Railroad Company for authority to use a highway in the Town of Wheatfield, Niagara County.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Thomas Kelly, Respondent, v. James J. McMahon, Appellant.
   Order apipealed from affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of proving the Last Will and Testament of George Pfister, Deceased.
   Decree of surrogate affirmed, with costs.


text:
    Bank of Batavia, Respondent, v. Andrew Forward, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Addie E. Baxter, an Infant, etc., Respondent. v. The City of Watertown, Appellant.
   Order affirmed, with ten dollars'costs •and disbursements.


text:
    Ann Seifert, Appellant, v. Michael Schillner, Respondent.
   Order reversed, with ten dollars costs and disbursements. Held, that the court had power to entertain the motion, and the plaintiff is at liberty to renew it at Special Term to be heard and disposed of on its merits.


text:
    Isaac McDougall, Appellant, v. Edmund P. Wait, Respondent.
   Judgment reversed and new trial ordered, costs to abide event. Held, that'the agreement is not within'the statute of frauds, as it was fully executed on the part of the plaintiff at the time when it was made; that if the agreement were void by the statute, the plaintiff would be entitled to recover back the money paid by him to the defendant, and that as to all other questions the case is controlled by that of Grover v. Wait (59 N. Y., 156).


text:
    Nathan T. Miser, Respondent, v. Joseph Miser, Appellant.
   Judgment affirmed, with costs.


text:
    The Phoenix Bank, Appellant, v. Daniel P. Stafford and others, Respondents.
   Motion granted by inserting in the order of reversal the words on questions of fact,” on payment by plaintiff of ten dollars costs of opposing, and on condition that if the defendants elect within ten dajs to discontinue their appeal to the Court of Appeals (which they are hereby permitted to do, without costs, in case the plaintiff avails himself of the relief granted by this order) the plaintiff pay to the defendants their costs and disbursements incurred in the prosecution of said appeal to this time, and if said condition be not complied with the motion is denied, with ten dollars costs of opposing.


text:
    In the Matter of this Application for the Removal of John E. Parker, a Justice of the Peace of the Town of Granby and Police Justice of the Village of Oswego Falls.
   Order to show cause granted.


text:
    William Pollard, Appellant, v. Benjamin T. Babbitt, Respondent.
   Judgment affirmed.


text:
    Bridget F. McCarthy, Respondent v. Justus Newell, Appellant.
   Judgment affirmed.


text:
    Mary E. Combs, by Committee, Appellant, v. Susan C. Little and Timothy F. Little, Respondents.
   Judgment affirmed.


text:
    The Gould Manufacturing Company, Respondent, v. R. De Witt Mason, Appellant.
   Judgment affirmed.


text:
    Aaron D. Morey, Appellant, v. Christian Fisher, Respondent.
   Judgment and order affirmed.


text:
    Levi F. Bowen, Respondent, v. Robert W. Beck, Appellant, Impleaded, etc.

   —Judgment affirmed, with costs.


text:
    Henry A. Dillaye, Appellant, v. Simeon Rouse and others, Respondents.
   New trial denied and judgment ordered for the defendants on the verdict.


text:
    The Herkimer County National Bank, Respondent, v. Alonzo Rust, Appellant, Impleaded, etc.
   Judgment affirmed. Held, that the appellant was liable upon the face of the draft, he having signed in his individual name without anything to indicate that he did so as agent, and that waiving the question of the admissibility of the extrinsic evidence, there was nothing in that evidence to relieve him from liability, as the agreement between the firm of Rhodes & Server and the bank did not authorize him to make a draft for the firm.

Hardin, J., not sitting.


text:
    Same v. Same. Same v. Same.
    Hardin, J., not sitting in either case.


text:
    Hamilton Rose, as Administrator, etc., Appellant, v. Helen M. Warren and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Mary Raynor, Appellant, v. Lucy Maria Raynor and others, Respondents.
   Judgment affirmed in all respects, without costs to either party.


text:
    Rienzi Le Valley, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   New trial granted, costs to abide events. Held, that the nonsuit was erroneous. It was for the jury to say whether the plaintiff left the train while in motion, voluntarily or.upon being compelled to do so by the conductor, and whether in the manner of getting off he was careless and was thereby injured.

Haight, J., taking no part in the decision.


text:
    Sarah M. Joslin, Appellant, v. James H. Capron, Respondent.
   Judgment reversed, and new trial ordered, costs to abide event, order of reference vacated. Held, that the referee erred in deciding as matter of law upon the facts found by him, that the settlement of December, 1866, was an accord and satisfaction of the plaintiff’s claim in suit, and that so far as it is to be implied from his report that he found that the parties to such settlement intended to include therein the claim in suit, such finding is against the weight of evidence.


text:
    In the Matter of the Application of the New York, West Shore and Buffalo Railroad Company, Appellant, to acquire lands of William Genwitts and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Rogers and Brother, Plaintifs, v. Horace English, Defendant, Impleaded, etc.
   New trial denied, and judgment ordered for defendant on the verdict.


text:
    Charles A. Hammond, Appellant, v. Charles Leonard, as Overseer, etc., Respondent.
   Judgment affirmed.


text:
    Ann J. Warford, Appellant, v. Leland S. Thompson, Respondent.
   Order denying new trial affirmed. (See Rule 84, and 8 " N. Y., 76, 77.)


text:
    David Cronin, as Overseer, etc., Respondent, v. Willard F. Stoddard, Appellant.
   Judgment affirmed. Held, that the three rules were sufficiently proved, without the testimony of Luce. The commitment was immaterial and was properly excluded; the other questions in the case are controlled by Cronin v. Gandy (16 Hun, 520).


text:
    In the Matter of the Application of the New York, Lackawanna and Western Railway Company, Respondent, to Acquire a Crossing of the Avon, Geneseo and Mt. Morris Railroad Company and the New York, Lake Erie and Western Railroad Company over their Railroad in the Town of Mt. Morris, Appellants.
   Order appealed from reversed, with ten dollars costs and disbursements, and motion to dismiss granted. Held, that a railroad company cannot maintain proceedings under section 28 of tlj.e general railroad act to acquire a crossing of the railroad of another company, until it has located its route.


text:
    Francis H. Pixley, Respondent, v. Jacob Hoyt, Appellant.
   Judgment affirmed.


text:
    Helen L. Allis, Appellant, v. Milton Stafford, Respondent, Impleaded, etc.
   Judgment reversed and new trial ordered in Ontario County Court, costs to abide event. Opinion by

Hardin, J.


author: Learned, P. J.:

text:
    EDWIN DODGE, Appellant, v. NATHANIEL BERRY, Respondent.

      Ice — rights of ri/pa/ricm owner in ice forming' in the water over his land — rights of mill owner thet'ein.

    A mill owner, who has the right to erect a clam and flow the lands of another person for mill purposes only, does not own the ice which forms in the water over the lands of such person, and the latter may take and remove such ice unless he thereby actually and perceptibly injures the mill owner.
    Appeal from a judgment of the County Court of Tioga county, reversing a judgment of a Justices’ Court in. favor of the plaintiff.

      J. JB. KVme, for the appellant.

      8. JD. JTalUdm/, for the respondent.
   Learned, P. J.:

The plaintiff recovered in a Justice’s Court six cents and costs. The County Court on appeal reversed the judgment and the plaintiff appeals. The action was for trespass on jdaintiff’spremises, and the bill of particulars and proof showed that the alleged trespass consisted in taking ice from a pond and in putting- stumps therein.

The plaintiff is in possession of a saw and grist mill, which he has had for thirty years. Some twenty-eight years ago he built a dam, and lias used it ever since exclusively. He owns nearly al the land around the pond. But one Adams was in possession of certain land which adjoined the pond, and. the line of which ran to the centre of the pond. The ice was cut over the land of which Adams had possession and by his consent. It does not appear that the stumps were put on plaintiff’s land.

The plaintiff claims that a person who has the right to flow lands of another for mill purposes only, has a right to the ice vhich forms on the water, and can maintain trespass against a person removing the same. This the defendant denies, and this is the question discussed.

The owner of land through which a stream of water runs has a right to a just and reasonable use of it. So long as the water is not wholly obstructed or diverted, or no longer appropriation is made than a just and reasonable use, the proprietor who is lower down cannot complain. If this were not so, then there could be no use by any one of a running stream from its source to its mouth. (Elliot v. Fitchburg R. R. Co., 10 Cush., 191.) “All that the law requires of the party by or over whose land a stream passes is that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish, or affect the application of the water by the proprietors above or below.” (3 Kent’s Comm., 439, 440; Pollitt v. Long, 58 Barb., 20; Merritt v. Brinkerhoff, 17 Johns., 306; Brown v. Brown, 30 N. Y., 519.) In Elliot v. Fitchburg R. R., the court say, that “ the complaint is * * * for obstructing a part of the water of the stream. This is a right which each proprietor has if exei’cised within a reasonable limit.”

The right which the riparian owner thus has may be modified, when some lower proprietor has a right to dam the stream for mill purposes; but if modified, it is not lost. Unless by some express grant or restriction to the contrary, we see no reason why the owner whose land is flowed by some dam below may not still have that just and reasonable use of the water which he would have had of the stream before the dam was built. And any use would seem to be just and reasonable which does no actual and perceptible damage to the owner below.

It was in this view that, in the case of Cummings v. Barrett (10 Cush., 186), the court intimated that a mill owner at the outlet of a pond conld not deprive any person of the right of cutting ice, without showing actual damages therefrom. And in the case of Mill River Manufacturing Company v. Smith (34 Conn., 462), which is cited by plaintiff to sustain his view, the argument of the court is based on the statement that water is sometimes scarce; that ice liquefies and becomes water; that it prevents deep freezing and consequent deprivation of water. For which reasons the court concluded that the riparian owner could not remove snow and ice from a mill pond at pleasure and as fast as they form. Thus that decision is placed on the ground that the act of removal did an actual, and not merely a constructive, injury. And the doctrine of that case, that such riparian owner cannot remove such snow and ice at pleasure and as fast as they form, is entirely consistent with the view that he may remove the ice over his land, if such removal does no actual and perceptible injury to the owner of the mill dam.

In the case of the State v. Pottinger (33 Ind., 402) it was decided that when the water of a flowing stream is congealed and forms ice, that ice, attached to the soil, belongs to the owner of the bed of the stream. If this be so, then the owner might remove it and dispose of it. Such an act would only be that just and reasonable use of the water of the stream which he might have, without doing wrong to the proprietor below him.

If, then, we’ apply the rule which gives to the owner of land through which a stream flows that just or reasonable use which does not actually injure the proprietor below; — if we apply this rule to the condition of things when ice has formed, we shall see that it follows that the riparian owner may take and remove the ice unless he thereby actually and perceptibly injures the proprietor below. And that same rule must apply when water has been set back by a dam. It is yery plain that the ice which has formed will, in that state, be of no use in turning a mill wheel. 'Whether after a lapse of some months it will be of use as water, or whether it will pass over the dam in its solid state, are matters of uncertainty. Clearly without some proof of actual injury the plaintiff has no right to complain of the removal of the ice. This view was taken in the case of Marshall v. Peters (12 How., 218) where it was held that the ice in a mill pond was not the absolute property of the owner of the mill.

In the case of Myers v. Whitaker (5 Abb. N. C., 172) the question was again examined; and the learned justice came to a conclusion contrary to that of Judge Emott, in Marshall v. Peters, and contrary to that which we have above expressed. The ground of the argument is that the waters of a mill pond belong to the owner of the dam, “subject only to the exception that the beneficial enjoyment of owners below should not be interfered with, just as much as if he had gathered them for his own use and benefit into a tank or cistern.” This is stated too strongly when the owner of the dam is not the owner of all the land flooded by means thereof.

The riparian owners are not, we think, deprived of their rights as such owners by the construction of a dam below them. Their right to a just and reasonable use of the water remains if it has not been actually surrendered. If any riparian owner has land covered by the pond, we see no reason why he may not take the ice from that land, unless by so doing he causes an actual injury to the owner below by materially diminishing the use of the water to which such owner is entitled. It is plain to every one that the real trouble in such cases is not that the mill owner will be injured by the removal of the ice, but that he desires to remove it himself and to make the profit of the sale. So it was in the present case, and so in the case last cited.

There may perhaps be cases and times of the year in which the removal of ice would be unjust and unreasonable to the mill owner. Nothing of that kind is shown in the present instance.

The judgment of the County Court is affirmed, with costs.

Present — Learned, P. J., Rumsey and Osborn, JJ.

Judgment of County Court affirmed, with costs.


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    JAMES FERGUSON, Appellant, v. FREDERICK B. HUBBELL, Respondent.

      Leasing of lands — when the lessor is not responsible for the aets of the lessee— (Opinions of witnesses — when they are admissible.

    Upon the trial of this action, brought to recover the damages occasioned by the negligent setting of a fire upon lands of the defendant, it appeared that the latter had leased the lands to one Hammond for five years, to be worked on shares; the defendant to furnish half the seed and Hammond the other half, and each to have half the produce. Hammond was to clear as much of the land as he chose to, at certain specified prices. Hammond notified the defendant of his intention to burn a portion of the fallow land, and was told by .him that if it was dry not to burn it so that there was any danger.

      Held, that the court properly charged the jury, that the defendant was not liable for the damages caused by the setting of the fire by Hammond.
    Upon the trial witnesses were allowed to testify, in respect to another fire set by the defendant himself upon other land belonging to him, that it was set at a proper time.

      Held, that the opinion of a witness having experience in such matters was competent.
    ' Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury.
    This action was brought to recover the damages alleged to have been sustained by the destruction of the Prospect Mountain House on May 17, 1880. The defendant was the owner of lands in the vicinity of that upon which the house stood, a portion of them being in his possession, and a portion in that of one Hammond, to whom they had been leased to work on shares. A fire had been set by Hammond on May thirteenth, on the portion of the land in his possession, which was still smouldering on the seventeenth, when the defendant started a fire on the other portion of his land. From one of these fires the plaintiff’s house was destroyed.
    The court charged that the defendant was not liable for any damages caused by the Hammond fire, and the jury rendered a verdict in his favor.

      A. J. Gheritree, for the appellant.

      Brown db Sheldon, for the respondent.
   Learned, P. J.:

The first question in this case is whether negligence on the part of Charles Hammond in setting the fire, or in the management thereof, could render the lefendánt liable. The land belonged to defendant. He had employed Hammond to clear the fallow in 1877. Hammond had hired the land for five years to work. Defendant was to find half the seed and Iiaminond half, and each was to have half the produce. Hammond was to clear as much land as he had a mind to at ten dollars an acre, ready for the drag; one dollar a hundred for rails cnt and laid up, and one dollar per cord for wood cut and piled on the road. It was under this arrangement that Hammond was occupying the place when he set the fire now under consideration.

Hammond notifieddhe defendant of his intention to burn. The defendant told him, if it was dry, not to burn so that there was any danger.

Thus it appears that the only arrangement between the defendant and Hammond was that the latter might clear up the defendant’s land. There was no special arrangement how or when this should be done. The defendant did not employ Hammond to burn the land, but permitted him to clear it up. This was lawful, and if,, in doing this act, Hammond was negligent, the defendant is not liable as employer. (King v. N. Y. C. and H. R. R. R. Co., 66 N. Y., 181.) The case is stronger for the defendant than that of Town of Pierrepont v. Loveless (72 N. Y., 211) For in that case the persons whose negligence caused the injury, were employed to-lo a specific act. The plaintiff urges that the defendant is liable under 1 Revised Statutes (696, § 1). But the liability is imposed on one who negligently sets fire to his own woods, or negligently suffers a fire to extend. And if Hammond was not the defendant’s-servant, then the defendant did not set the fire or suffer it to extend.

The plaintiff again insists that it was a question for the jury whether Hammond was the defendant’s servant. But there was no dispute as to the facts. Both of them stated the arrangement between them. There is no evidence that the defendant interfered, or took any part, or gave any directions, except it were to caution Hammond, if it were too dry, not to burn so that there was any danger. This was advice which anyone might give.

The plaintiff again insists that the court erred in permitting the defendant and others to testify, in respect to the other fire, that it was set by the defendant at a proper time. This presents the point whether this was a matter on- which persons of experience might be permitted to express an opinion. Of course it is not easy to lay down a rule which shall distinctly limit those cases in which opinion may be expressed on a trial and those in which it may not. Where the facts can be so clearly stated and are of such a nature that the jury can judge on the matter, it is plain that the opinions of witnesses are not necessary or proper. But opinions are. permitted in the case of experts, from their supposed special knowledge. And the opinion in this case is of the same nature. Whether it was proper to set the fire at a particular time would depend on the degree of dryness, on the force of the wind and its direction, and on many other circumstances, which are hardly capable of such accurate description, that the witness could give a jury a perfect idea of the facts. (Hays v. Miller, 70 N. Y., 118; Brink v. Hanover Fire Ins. Co., 80 N.. Y., 115.) Of course such testimony may be greatly shaken by a cross-examination which will show the facts on which the opinion was formed. Still the matter depends so much on the judgment of persons who have had actual experience, that we think the evidence was admissible. For, if the evidence were strictly limited to the condition of the ground, of the wind, etc., (even supposing that they could be accurately described), yet then a juror, not experienced in such things, could not well determine whether the time was proper for the burning. It would be necessary further to prove what kind of time and circumstances were proper. A man who had never cleared up land, or worked a farm, might be unable to determine whether the time was proper for burning, even after he had been informed of all the facts. No question is made as to the correctness of the charge of the learned justice. Indeed the charge is not contained in the case as settled. We have no occasion therefore to consider whether or not the defendant is under any other liability in respect to a fire, set by himself, than that liability which is laid down in Stuart v. Hawley (22 Barb., 619).

The judgment is affirmed, with costs.

Present — Learned, P. J., Rumsey and Osborn, JJ.

Judgment affirmed, with costs.


text:
    HALSEY FOLLETT, Respondent, v. HENRY BADEAU and WARREN BENNETT, Appellants, Impleaded with ALBERT MARTIN.

      Trusts in lands — cannot be created by parrol for unincorporated religious societies.

    The plaintiff and others, some of whom were Universalists and Liberal Christians, and others Baptists, signed a paper by which they agreed to pay certain sums of money to be used in the erection of a house of worship, the paper stating that when erected the house should, when not occupied by the Baptists, “be open for any Christian denomination contributing” to its erection and paying their portion of the incidental expenses. The money was paid to Martin, a clergyman of the Baptist church, who promised the plaintiff and others of the Universalists and Liberal Christians that the building should be open for worship by them when requested; and when not in use by the Baptists. With the money so received, Martin bought a lot, taking the title in his own name, and erected a building which was thereafter used by the Baptists on Sundays, and such other times as they appointed. It was also used by the Universalists from the time of its erection down to the spring of 1880.
    In 1872, Martin being about to leave the village, conveyed the premises by a warranty deed to Delong and Wright, as trustees of the First Baptist Church of Schenevus, and their successors. No trust was expressed in the deed. There was not, nor has there ever been, any such corporation, nor were Delong and Wright trustees of any legally constituted body. They took the conveyance without paying any consideration and with full knowledge of the rights of the subscribers. The premises are still held by them ¡or persons claiming to be their successors.
    They having refused to allow the building to be used by any other denomination than the Baptist, the plaintiff brought this action to have them restrained from so closing the house.

      Held, that the subscribers had acquired no rights in the premises, nor was any valid trust created in their favor which would authorize the court to grant the relief sought.
    Appeal from a judgment overruling a demurrer to tbe complaint.
    There aie three defendants, Badeau, Bennett and Martin. The alleged cause of action against Martin is distinct from that against Badeau and Bennett and is not before the court for consideration on this appeal. Badeau and 'Bennett demurred and their demurrer was overruled. The allegations of the complaint were as follows:

      ' In December, 1867, a subscription paper was prepared in tbe words following:
    “ Schenevus, N. Y., December 12, 1867.
    “We, tbe undersigned, do pledge ourselves to pay tbe sums we severally subscribe, to a committee hereafter to be appointed by the First Baptist Church and Society of Maryland, N. Y., for the purpose of building a house of worship in Schenevus village under the direction of the above named church and society, being governed in expenditures by the amount contributed. The house (when not occupied by the Baptist church) shall be open for any Christian denomination contributing for the erection of the house and paying their portion of incidental expenses. All subscriptions for this ■object shall become binding when two thousand five hundred dollars is pledged.”
    To this the plaintiff subscribed twenty dollars. Eight others whose names are given, and a large number whose names are not given, also subscribed large sums of money. The plaintiff and these persons, whose names are given, were Universalists and Liberal Christians. Other persons who were Baptists also subscribed. The subscriptions were paid to the defendant Albert Martin, who was a clergyman of the Baptist denomination, and wTho had prepared the subscription. To obtain the subscription he had promised the plaintiff and others of the Universalists and Liberal Christians, that if they -vtoidd subscribe, the edifice, when built, should be open for worship by the Universalists when requested, and when not in use for the regular worship of the Baptists.
    With the money thus subscribed Martin bought a lot and took the title in his own name, and with the money he also built thereon •a church edifice. After the building was completed and until about April, 1872, the Baptists had a settled minister and held services in the building on Sundays, and at such times as they thought fit to .appoint. And the Universalists, represented by the plaintiff and other subscribers, from time to time, held meetings for worship conducted by clergymen of their denomination on occasions when no meetings were held by the Baptists.
    In April, 1872, Martin being about to move- from the village, executed a warranty deed of the premises to Delong and Wright. describing them as trustees of the First Baptist Church of Schenevus and their successors. No trust is expressed in the deed. There was not then, nor has there ever been, any corporation by the name of the First Baptist Church of Schenevus, nor were Delong and Wright trustees of any legally constituted body, nor were they competent to take a conveyance as trustees.
    Delong and Wright paid nothing for .the conveyance to them, and they took with full knowledge of the equitable rights of the plaintiff and other subscribers. They entered into possession, and the church edifice has ever since been in the possession and control of Delong and Wright, or of persons claiming to be their successors, who hold the same for the benefit of said Baptist denomination. Until about the spring of 1880, the plaintiff and other subscribers of the Universalist denomination had from time to time appointed and held meetings in said house at times when no meetings were appointed to be held by the Baptist denomination.
    In the spring of 1880, the defendants Badeau and Bennett, and one Wilcox, had possession and control of the premises and of said house, claiming to be trustees and successors to said Delong and Wright, and claiming to act as trustees and to control said house for the benefit of the Baptists. In August, 1880, the plaintiff and others of the original subscribers made an appointment for a religious meeting to be held in said house, to be conducted by a clergyman of the Universalist denomination, at a time when the house was not used by the Baptists. They made a formal written request to the said Badeau, Bennett and Wilcox. Badeau and Bennett refused to allow the house to be opened for such purpose, or for any meeting to be conducted by a Universalist clergyman. Wilcox refused to have anything to do with the matter, and immediately-declined to act any further in controlling the house, and resigned as trustee. And the defendants, Badeau and Bennett, insist that .no meetings shall be held in said church by the Universalists, and that no denomination has any rights there except the Baptist.
    Judgment is asked enjoining them from closing the house against any subscribers to the fund, or against any meeting for worship appointed to be conducted by a Universalist, when the house is not used by the Baptists. Judgment is also asked against Martin for a recovery of the moneys paid, in case it shall be adjudged that the plaintiffs and the subscribers have lost their rights by reason of Martin’s conveyance.

      I. I. Bumdy, for the appellants.

      Samuel A. Bowen, for the respondent.
   Learned, P. J.:

The question of Martin’s liability to the plaintiff and to the other subscribers to refund the money is not here. The only question is whether an action is stated against Badeau and Bennett.

A point is made by these defendants that there is a misjoinder in making Martin a defendant with them; also that there is a misjoinder in not making Delong and Wright parties who appear to •have the title to the premises. These are points, especially the latter, which are by no,means free from difficulty. On the face of the complaint it would seem that Delong and Wright still h.ad the title, and a decree establishing rights iri the real estate should not be made in the absence of the persons having apparently the legal title. But it is best to examine the case on the merits.

The conveyance to Martin gave him the fee. Nothing in the deed declared that he held as a trustee. He never executed any writing (aside from his conveyance to Delong and Wright) which declared a trust in the land; and no trust could be declared except by a writing. (2 R. S., 134, 135, §§ 6, 7; Laws 1860, chap. 322.)

But, again, if we could consider the subscription paper as a declaration that the land purchased by Martin was held, or to be held, on a trust therein indicated, other difficulties arise. Suppose that paper be construed to declare a trust, in substance, to hold the lands for the use of the Baptists and for the use of the Universalists when not needed by the Baptists, then, first, such a trust is not authorized by the Revised Statutes (1 R. S., 728, § 55); second, it would create a perpetuity. (Adams v. Perry, 43 N. Y., 499.) Martin then held the fee charged with no trust.

Next Martin conveyed to Delong and Wright, describing them as trustees of the First Baptist Church of Schenevus. There was no such corporation; and therefore this conveyance was not a conveyance to the corporation, as it probably might have been construed to be had any corporation been in existence. The words, therefore, “trustees, etc.,” were merely descriptive, and the fee vested in the grantees absolutely. Their knowledge of the subscription paper could have no more effect than Martin’s knowledge of the same paper. The words “ their successors in office ” had no effect, for there was no such office, and therefore there could be no successors.

The plaintiff urges that they took no title, and cites Laws of 1855, chapter 230. The object of that statute is well known. It was to put an end to a custom which had existed in respect to the churches of the Bomish faith. It had been customary to convey churches and other property to the bishop of the diocese and his successors. And the object of the statute was that, in future, such property should, as in other denominations, be held by the religious corporation and not by any person holding an ecclesiastical office. The statute however was repealed. (Laws of 1862, chap. 147.)

If it should be urged that the conveyance to Delong and Wright might be construed to be for the use of the Baptists or partly for the Universalists, then the answer is that the conveyance would vest nothing in the grantees, because it was not made to a corporation organized under the statutes. The title would remain in Martin. A conveyance for the benefit of a congregation or society for the purpose of 'religious worship must be made directly to that congregation or society, if it be incorporated, and not to any person for its benefit. If the congregation or society is not incorporated, there is no authority for holding real estate in trust for it. But even without deciding whether the title is in Martin or. in Delong or Wright, we remark that the plaintiff claims to enforce an alleged trust in the land for the benefit of himself and his associates. And the plaintiff urges, in his behalf, the doctrines which have been applied in England and elsewhere to charitable uses. But such uses in land are abolished in this State, except as preserved and modified by the statute. (1 B. S., 727, § 45; Holmes v. Mead, 52 N. Y., 332.) . The doubt on this point, sustained by the case of Williams v. Williams (8 N. Y., 525), no longer exists. If, then, it be claimed that Martin or Delong and Wright, or Badeau and Bennett hold this land, on the trust to permit the plaintiff and others of his associates to hold meetings there for worship,

33 the difficulty is that such a trust in land cannot be lawfully created under the statute, and cannot be enforced as a charitable use.

We regret that the defendants refuse to carry out the terms on which the plaintiff and others contributed money. It would seem that the religious instruction which they have received in this church edifice has not taught them ordinarily fair dealing; and certainly has not impressed on them the rule to do unto others,as they would have others do to them. But, for the reasons above given, we think that the plaintiff cannot have the relief he has sought against Badeau and Bennett in this action.

The judgment is reversed and judgment for the defendants given ■on the demurrer, without costs, with leave to plaintiff to amend on payment of costs.

Present — Learned, P. J., Ruhsey and Osborn, JJ.

' Judgment reversed and judgment for defendants oh demurrer, without costs, with leave to plaintiff to amend complaint on payment of costs.


text:
    In the Matter of the General Assignment of JOHN E. STOWELL and Others.

      Banhr uptcy proceedings — discharge by composition in — when it does not affect a general assignment previously made — right of a creditor to compel the assignee to account.

    A discharge in. bankruptcy under composition proceedings, does not affect property of the bankrupt in the hands of an assignee, to whom he had, more than a year before the commencement of the bankruptcy proceedings, made a general assignment without preferences. A creditor of the bankrupt, who, though duly notified of, did not appear in the proceedings or accept the dividend, may compel such assignee to appear and render an account even though he was directed by the order in bankruptcy to hand over to the assignor all the assets remaining in his hands.
    Appeal from an order made by the County Court of Chemung ' county, refusing to compel an assignee, for the benefit of creditors, to render an account of his proceedings, and refusing to compel him to give additional security as such assignee.

      Youmans do Moss, for petitioning creditors, appellants.

      G. L. Smith, for Samuel W. Perry, assignee, respondent.
   Learned, P. J.:

John E. Stowell and others, partners under the firm name of Stowell Brothers, made a general assignment for the benefit of creditors, without preferences, to Samuel W. Perry, June 7, 1876, and Perry duly qualified and entered on the discharge of his duties. Afterwards Stowell Brothers, on their own petition, were adjudicated bankrupts by the United States District Court, February 7, 1878. Subsequently composition proceedings were taken in the District Court, the result of which was that a final order of composition was made April 26, 1879, for the payment in cash to the creditors, of twenty cents on the dollar within thirty days. That order provided that upon the payment by the Stowells of this composition of twenty per cent, Perry, the assignee aforesaid, should hand- over to the assignors all the assets remaining in his hands. Stowell Brothers, within the thirty days, paid all their creditors the twenty per cent, except Fraser, Bell & Loughran, to whom they tendered the amount and who refused to accept it. Fraser, Bell & Loughran did not appear in the composition proceedings, but their names, address and the amount of their claim appeared in the statement of the creditors, of the bankrupt; and they had due notice thereof and of the bankruptcy proceedings. Since such tender, Perry, assignee, has handed over all the assets remaining in his hands to Stowell Brothers, the assignors.

On the 18th of February, 1878, Fraser, Bell & Loughran commenced these present proceedings in the County Court for an accounting by the assignee and the payment of their claim. A partial account was filed by the assignee, which was, on the 15th of May, 1878, adjudged to be defective, and on that day the County Court ordered Perry, the assignee, to file a further account and to submit- to an examination before a referee. That' examination was had August 26, 1878, in the course of which the assignee promised to file a further account. No account having been filed, a further order was made by the County Court April 10, 1879, requiring the assignee to show cause why he should not file such account, and why he should not be punished for contempt, and why he should not file additional security. This order was returnable the 22d of April, 1879, and the matter appears to have been continued till August 1, 1879, when the County Court decided that the assignee was excused from rendering any further or additional account. The only question decided by the court was that the proceedings in bankruptcy and the turning over of the property thereunder, as above stated, excused the assignee from rendering any further account. The learned judge placed this decision principally on the ground that by the composition proceedings the debt owing to Fraser, Bell & Loughran was discharged, and that they did not, by the assignment to Perry, become secured creditors.”

We deem it no defense to Perry, the assignee, that by the order of the court in bankruptcy he was directed, after the payment of the twenty per cent had been made to the creditors, to pay over the assets in his hands to the Stowell Brothers. Nothing appears in the papers before us showing that the bankruptcy court had any jurisdiction over Perry personally. The assets in his hands did not belong to the Stowell Brothers but belonged to Perry in trust for creditors. As they were not the property of the Stowell Brothers we do not see that the bankruptcy court had jurisdiction over those assets. If any assignee in bankruptcy had been appointed and had claimed these assets he would have had to recover them, if at all, by a suit against Perry. (In re Waitzfelder and others, 18 N. B. R., 260.) The assignment to Perry was valid. (Hass v. O’Brien, 66 N. Y., 597; Reed v. McIntyre, 98 U. S. R., 507; Mayer v. Hellman, 91 id., 496.) Every creditor of the Stowell Brothers acquired, therefore, a right to have the assigned property applied by the assignee pro rata to the debts. This right was absolute. The Stowells could not deprive any creditor of that right, nor could one creditor deprive another. So, too, the assignee in bankruptcy takes the estate subject to all lawful rights and equities. (Yeatman v. Savinys Inst., 95 U. S. R., 764.) And therefore if there had been an assignee in bankruptcy appointed for the Stowells, that appointment would not have taken away the property in Peny’s hands or relieved him from his liability. It is plain that composition proceedings could have no greater effect than an appointment of an assignee and a subsequent discharge in bankruptcy would have had. Composition proceedings are really but a substitute for the distribution of the estate by an assignee in bankruptcy. There is no reason why such proceedings should affect any property which could not be reached by such assignee.

In the Matter of Backer (2 Abb. N. C., 379) it was held by the Special Term of the Common Picas that, where all creditors are secured to the same extent and in the same manner, the provisions of the bankrupt act discriminating between secured and unsecured creditors have no application. The reason given is that the object of these provisions is to secure equality, and to require the secured creditor to look to his special fund first. But the object is more than this. These provisions will not produce equality. Because the secured creditor may be able to collect his whole debt from his security; while the unsecured may get only a small per centage on the composition. The meaning of the provisions is also that vested rights, which are not void as against the bankrupt law, shall be preserved. An assignment in trust may be as complete a security as a mortgage would be. A security is no less a security because it is for the benefit of several creditors and not of one only. And an equitable right, such as the creditor has under an assignment (Story’s Eq., § 1244), is protected from the effect of bankruptcy proceedings. (Yeatman v. Savings Inst., ut supra.) We think that the rights of Eraser, Bell & Loughran were not taken away by the composition proceedings.

But again it is said that their debt has been discharged, and therefore they have no further claim. This, however, is only stating the same idea in another form. If one who has a lien or security on his debtor’s property, valid against bankrupt proceedings, is not to be deprived thereof by those proceedings, then he is not to be deprived thereof by the discharge of his debtor, whether obtained by the regular course of bankruptcy or by means of a composition. The creditor who has a mortgage, valid against the bankrupt law, does not lose his mortgage lien by the debtor’s discharge. So in the present case.

The views above expressed are in accordance with those of the opinion in the Matter of Allen (31 Sup. Ct. N. Y., 408); see, also, Falkland v. St. Nicholas National Bank (84 N. Y., 145).

The order of the County Court is reversed, with costs to appellants against Perry personally, and the assignee Perry is ordered to account as prayed for in the petition, and the matter is remitted to the County Court to take such further proceedings as may seem best.

Present — Learned, P. J., Rumsey and Osborn, J J.

Order of County Court reversed, with costs to appellants, against Perry personally, and assignee ordered to account as prayed for. Matter remitted to County Court for further proceedings.


author: Osborn, J.: Rumsey, J.:

text:
    HENRY SALISBURY, Respondent, v. EDWARD I. McCLASKEY, Appellant.

      Jurors — relationship of jurors to the prevailing party — when it is not a ground. for a new trial.

    After a jury had been impanneled and sworn and the trial concluded it was ascertained that.two of the jurors were cousins of the plaintiff, who was the prevailing party. It was not shown that the plaintiff or jurors had knowledge of this fact, and it was shown that the defendant did not know of it. No misconduct on the part of the jurors so related was claimed to have existed.

      Held, that the court properly refused to grant a motion for a new trial based upon the fact of such relationship.
    Appeal from an order of the County Court of Albany county, denying a motion for a new trial on affidavits and the minutes of the court, made upon the grounds that two of the jurors who tried the cause were first cousins of the plaintiff and that the verdict was against the weight of the evidence.

      J. H. Glute, for the appellant.

      W. A. Allen, for the respondent.
   Osborn, J.:

This is an appeal from an order of the County Court denying a motion for a new trial on the minutes of the court. The action was originally commenced and tried in a Justice’s Court, and an appeal for a retrial taken to the Albany County Court, where it was tried, resulting in a verdict for the plaintiff.

The motion for a new trial on the minutes and on affidavits was not before the County Court at the same term at which the cause was tried, and the respondent claims that a motion to set aside the verdict on the minutes can only be made at the same term of the ■ court at which the action was tried, and that the same cannot now be brought here for review. This may be so, but we do not pass upon that, or the other point raised by the respondent, that the. order before us is not an appealable one.

The learned counsel for the appellant presents but one question for. consideration, and that is of a character so. clearly untenable that an examination of any preliminary objections seems wholly-unnecessary.

After the jury had been impanneled and sworn, and the trial concluded in the County Court, it was ascertained that two of the jurors were cousins of the plaintiff, who was the prevailing party. There is positive proof that the defendant did not know such fact when the jury was accepted and sworn. Nor is there any proof that the plaintiff - or the jurors knew anything of such fact. It was for this relationship undoubtedly that the motion was made to set aside, the verdict, and from the order denying the same an appeal is- taken to this court.

There is no pretense that there was any misconduct on the part of the jurors so related, or that by reason thereof the verdict as rendered was produced. The appellant has assumed that the relationship of a juror was equivalent and had the same effect as though it was to the judge, that is, that the question of the. reía-, tionship of one or more of the -jurors was precisely in effect like the relationship of the judge presiding at the trial. In this the learned counsel for the appellant is mistaken. In the case of the relationship of a judge at a trial within the ninth degree, to one of the parties, he obtains no jurisdiction of the parties, nor can such jurisdiction be conferred by consent. Any judgment rendered where such relationship exists is absolutely void, the court having no jurisdiction to try the action because of such relationship. Hence, any judgment in such case will be set aside, though the same be against the party so related. But as to a juror it does not in any manner affect the jurisdictional question. The court has jurisdiction over the parties and the subject matter of the action. If a juror, no matter how closely related to one of the parties is accepted without objection, he is a competent juror. The relation of a juror is simply a disqualification, the same as though over or under the age prescribed, not possessing the necessary property, qualifications, etc. If allowed to pass no question can afterward be raised. This proposition is too clear for argument, and needs no reference to authorities.

The order appealed from must be affirmed, with costs, including printing disbursements.

The appeal can hardly be treated as an appeal from the judgment, and so far has been treated and disposed of as an appeal simply from an order denying a new trial upon affidavits.

Learned, P. J., concurred.

Rumsey, J.:

I concur, because it does not appear that any harm has come to the defendant by reason of the presence on the jury of the two persons who were related to the plaintiff. The rule, as settled by authority, seems to be that while the relationship of a juror to a party is ground of challenge for principal cause, yet if the objection is not taken when the jury is impanneled, the presence of the disqualified juror is not ground for a new trial, although the disqualification was not known to the defeated party, unless it appears he was actually prejudiced by it. ( Woodward v. Dean, 113 Mass., 297, and cases cited; Rollins v. Ames, 9 Am. Dec., 79, and note, pp. 81 and 82.)

Order affirmed, with costs.


author: Osborn, J.: Bumsey, J.:

text:
    EDWIN ARTHUR GRAY, by WILLIAM MONROE, his Guardian, Respondent, v. THE BOARD OF SUPERVISORS OF TOMPKINS COUNTY, Appellant.

      County — liability of, for wrongful conversion of trust funds by its county treasurer.

    One Bristol -while county treasurer of Tompkins county received certain funds with directions to invest them for the benefit of the plaintiff, an infant. He invested the funds and received interest thereon for several years, but finally without authority disposed of the securities and deposited the amount received therefor to his credit in the bank or banks where he kept his accounts, and in which all the moneys he received were commingled, as well.those received for the benefit of the county as those received for immediate investment or to await the further order of the court. He misappropriated the funds, using them for his own benefit and applying funds deposited for one purpose to pay charges against other funds. Upon the expiration of his term of office he paid over to his successor a balance of county moneys in his hands and untruly reported that the plaintiff's money was invested in bonds and mortgages.

      Held, that the plaintiff could not maintain an action against the county to recover the money belonging to him which had been wrongfully appropriated by the county treasurer.

      Backer v. Board, of Supervisors of Schuyler County, distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The plaintiff, an infant, was the owner of certain real estate situate in the county of Tompkins, which was sold according to statute, by proceedings in the Supreme Court, and the price paid therefor deposited with the county treasurer of said county, to be by him invested for the use and benefit of said infant, under and by virtue of an order of the court which directed the sale.
    George H. Bristol, then county treasurer of Tompkins county, pursuant to said order, on the 30th day of April, 1870, invested $400 of said money in a mortgage upon lands of one Thatcher, and in the month of June following he invested the remaining $350 in a mortgage upon lands of one Hayes.
    On the 20th day of July, 1875, the said county treasurer, without authority from the court, sold the aforesaid Thatcher mortgage for $400, and deposited the money received to his credit as treasurer in the First National Bank of Ithaca. On the 31st day of July, 1875, the aforesaid Hayes mortgage, amounting at that time, including interest, to $354.38 was paid to said treasurer, and the money deposited in the Tompkins County National Bank to his credit.
    On the 22d day of July, 1875, when the $400 received on the sale of the Thatcher -mortgage was paid and deposited as above stated, Bristol held to his credit as treasurer in the different banks the aggregate sum of $237.55. But at this, time Bristol was a defaulter as treasurer to the amount of $5,000 and upwards, on account of funds of ■ the county, and money from time to time deposited with him under orders of the courts, misappropriated by him, or converted to his own use.

      It further appeared by an examination of the accounts sworn to by Bristol, and reported by the referee, that after January 1st, and prior to July 1, 1875, he had drawn from the two banks in Ithaca, and used in his own private affairs, misappropriated and converted to his own use, the sum of $1,335 and upwards of the funds in his hands as county treasurer.
    On the 31st day of December, 1875, Bristol’s term of office as treasurer expired, and he was succeeded by K. S. Van Voorhees. At the close of Bristol’s term he paid over to his successor the sum of $1,775.39, and reported $792 (that being what the plaintiff’s fund then amounted to), as invested for the plaintiff in mortgages. But the referee finds that the report as to • the investment of the plaintiff's money was untrue; that Bristol tendered to his successor mortgages upon his own property as security for the plaintiff’s claim, which were rejected as inadequate.
    The plaintiff brings this action against the board of supervisors of Tompkins county, to recover the amount of his funds deposited with the treasurer as aforesaid, claiming that Bristol used the same to pay county indebtedness, and that the county is liable therefor as money had and received to the plaintiff’s use.

      P. G. Elsworth and Merritt King, for the appellant.

      S. D. Holliday, for the respondent.

       SUPREME COURT — General Term, Third Department, September, 1876.

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

      EVA BACKER, by her Guardian, Respondent, v. BOARD OE SUPERVISORS OP SCHUYLER COUNTY, Appellant.
      Appeal from a judgment, rendered upon the report of a referee in favor of plaintiff.

        B. P. Hand, for the appellant.

        A. Hadden, for the respondent.
      Boardman, J.:
      The findings of fact by the learned referee are very full, and with a single exception are not criticised by the appellant, I therefore adopt such findings as a concise statement of the facts. The action is for money had and received by the defendant. Tlie judgment for the plaintiff may be predicated upon any one of the following positions:
      1st. That the neglect to keep these trust funds separate and apart from the county funds, and the depositing and intermixing the same with the general funds of the county, constituted a conversion thereof to the use of the county whereby the county became liable as for money had and received.
      2d. That the drawing out from the general funds, after this deposit was made, large amounts far exceeding the amount of plaintiff’s claim on account and for the benefit of the county of Schuyler would, in like manner, create a liability on the part of the defendant, although at the same time the treasurer illegally drew an amount exceeding plaintiff’s claim from the same fund during the same time and became a defaulter therefor.
      3d. That the defendant by their subsequent accounting with the defaulting treasurer and receiving from him such notes and securities as could be obtained, and turning them over to the newly appointed treasurer as property and assets of the county of Schuyler, are estopped from setting up the defalcation against the plaintiff while they take the proceeds thereof.

        The facts upon which the first two propositions are founded are unquestioned. As to the third it is claimed the referee is in error.
      Plaintiff’s money was deposited to the credit of the treasurer on the 8th of February, 1872. On that date the treasurer’s account-was slightly overdrawn. Between that day and the twenty-second of June large deposits were made and checks drawn against such deposits. On the latter day the account was balanced. Up to May thirtieth $12,314.57 had been deposited and $9,125.60 checked out; $2,370.66 of the latter amount was wrongfully checked out and loaned to various individuals. The residue of the $9,122.60, except about $700, was drawn out and paid for the proper debts and liabilities of the county. The $700 was a trust fund properly paid out by the treasurer to its owner. It is clear, therefore, that plaintiff’s money was wrongfully applied to the use of the county or for temporary loans in violation of law. Plaintiff’s moneys having been commingled with the county funds in one general account cannot he traced specifically. The referee finds that the notes taken for the temporary loans above referred to were afterwards in part paid and the proceeds placed to the credit of the treasurer again, and the balance of such notes or obligations were taken possession of by the defendants and from them went into, the hands of the new treasurer as the property and assets of the county. One thousand dollars or more of such securities proved to be worthless. These findings are sustained by the evidence of the late treasurer, except that he does not say that the same notes or obligations originally taken went into the possession of the county. On the contrary, he refers to a list of such securities on pages 41 and 42 of the case as being the proceeds of such temporary loans not paid and the securities he held therefor. Those securities, amounted to $2,357-09, and $856.10, besides in cash were also realized from the notes and taken upon these temporary loans. In addition the defendant received of the late treasurer $10,772.84 in mortgages at their face value, making in all so received $13,986.03. It also appears by the report of a committee of the defendant that the amount of defalcation in the trust funds, including that due plaintiff, was $33,386.10, which is nearly covered by the notes and cash received by defendant as above stated, viz., $3,213.19. It does not appear that the identical notes, etc., taken for loans in the spring of 1872 went into the defendant’s possession, but notes and securities of a greater amount were surrendered to and received by the defendant and went into the hands of the new treasurer. I think therefore the finding is, in substance and effect, supported by the evidence.

        Upon such an understanding of the case we might, perhaps, doubt whether this judgment could be sustained on any one of the positions hereinbefore stated. But I think upon all combined a case is made in which the defendants are shown to have had and received to their own use the moneys of the plaintiff. It follows that plaintiff is entitled to recover if there be no rule of law making the defendants an exception to the general rule. The case of Newman v. Supervisors of Livingston (45 N. Y., 676) holds that a board of supervisors may be sued in such cases in the same manner with an individual. (See, also, Hill v. Supervisors of Livingston, 12 N. Y., 52.)
      In the view I have taken of this case it does not seem necessary to pass upon or determine the nature of the relations existing between the county treasurer of a county and its board of supervisors. If I am correct in my reasoning the plaintiff would be entitled to recover in any event. Nor can any importance be attached to the neglect of the defendant to prosecute the official bond of the defaulting treasurer, whether it should have been done upon defendant’s own motion when a defalcation became known or whether the plaintiff should have made the demand or request on her own behalf to create the duty. As no question has been raised in respect to the right of the plaintiff to maintain this action and recover the money, that subject need not be considered.
      For the reasons given the judgment should be affirmed, with costs.

   Osborn, J.:

On the argument we were all agreed that the judgment appealed from in this action should be reversed, unless the decision of a case somewhat similar in character, entitled Eva Backer, by Guardian, v. The Supervisors of Schuyler County (decided by this General Term in 1876, and reported in 3 Weekly Dig., 293) was binding upon us. But we are satisfied, from a most careful examination, that the Schuyler county case is easily distinguishable from the one under consideration, as will be attempted to be shown. We are not inclined to extend the doctrine held by Mr. Justice Boardman, for it is evident from the language employed in his opinion, which was in favor of an affirmance, and where every legal presumption or intendment should be indulged in in order to affirm, that he had some difficulty in arriving at the conclusion he did with the facts before him. In the case at bar certain funds of the plaintiff were, by order of the .court, placed in the hands of one Bristol, county treasurer of Tompkins county, with directions to invest for the benefit of the infant. He made such investments and for several years received interest thereon. Finally, without any authority, he disposed of these securities, and deposited the amount received to his credit in the bank or banks where he kept his accounts. All the moneys he received were commingled in one common fund, as well the moneys coming into his hands for the benefit of the county and the payment of its indebtedness, as funds which were directed to be placed in his hands, either for immediate investment or to await future orders of the court. In these court or trust funds the county had no interest whatever and received no benefit therefrom. This treasurer, Bristol, who held the office for six years, was, as the evidence shows, a notoriously bad man, though doubtless enjoying public confidence and esteem. It can easily be seen that, during his entire term of office of six years, he was constantly misappropriating funds, using trust and county funds for his own personal benefit; funds of infants deposited with him by order of the court wóre taken to pay county expenses, and the funds of the county to pay funds which he was obliged to account for, which had been so deposited with him by order of the court; and of course at all times subject to its order: the result of this robbery from one fund to make good another at the last was, as can easily be surmised, that he turned out a defaulter and utterly unworthy the position he occupied or of the confidence which had been reposed in him.

This action is brought to recover against the county on the ground that the county treasurer has used the plaintiff’s funds for the benefit of the county, and that, but for these funds, he would have been a greater defaulter to the county. I confess I do not see how the action can be maintained. The money of the plaintiff had lost its identity. The investment made of such funds he had, without authority, gathered in, and commingled the avails with funds derived from every other source. Why not the county as well say to the plaintiff (assuming that the plaintiff had received his pay from the treasurer): “You must pay this back because the treasurer paid you from funds raised for county purposes ? ” As the respondent well says in his points “ that any particular money left with the treasurer and deposited, as it was by him in the common fund, loses its identity, and the treasurer becomes the debtor of the depositor.” And if the treasurer should pay a claim from the fund so commingled by him, could every person or municipality interested in the fund maintain an action against the one so fortunate as to receive his pay, on the ground that a part of his or its money must have gone in to make the fund for such payment % Most clearly not. (Perley v. County of Muskegon, 32 Mich., 132; S. C., 20 Am. R., 637; see opinion of Campbell, J., at p. 639.)

As has already been intimated, we have felt some embarrassment from the Schuyler county case above referred to. It probably controlled the referee. The learned judge who wrote the opinion in the Schuyler county case, I think, arrived at his result with some reluctance. But we should feel bound by that decision if there was no substantial difference in the two cases.

But it seems to me there is a clear and well defined difference in the Schuyler county case, the board of supervisors, knowing that the county treasurer' was a defaulter, settled with him, and actually and knowingly received the infant’s funds or securities in payment of the deficit due from such treasurer to the county.

In the case at bar it is true an action was commenced against Bristol and his sureties, but the county received nothing on account of any interest or fund which this plaintiff had with this defaulting county treasurer.

The distinction in the two cases is marked and obvious. Suppose in the case under consideration the county treasurer had been a banker receiving money on deposit from any and all parties desiring to open a bank account with him. These funds he commingled with his own individual funds; funds of the county and funds deposited with him by order of the court. An individual depositor is fortunate enough to draw out the amount he has on deposit before the defalcation is apparent. Could the county or the owner of court funds so deposited, or other depositors, recover against the fortunate depositor because it might appear that it was from their funds in whole or in part that the fortunate depositor was able to obtain such payment ? By every process of reasoning it seems to us the learned referee erred in not distinguishing this from the Schuyler county case.

The judgment should be reversed; the order of reference discharged or vacated, and a new trial granted, with costs to abide the event.

Bumsey, J.:

I concur in the result in this case. I base my concurrence on the following propositions which I regard as established: .

1st. That the treasurer had the title to the mortgages in which the plaintiffs money was invested (Laws 1848, chap. 277, § 4), and that the money received by sale and collection of those mortgages belonged to the treasurer, although impressed with a trust in favor of plaintiff while it could be traced.

2d. That when the treasurer deposited the money in the bank to his credit, the bank became his debtor to that amount and the money deposited became the money of the bank, although still liable as between the treasurer and the plaintiff, to be applied to satisfy plaintiff’s claim. (Ætna Nat. Bank v. Fourth Nat. Bank, 46 N. Y., 82; 1 Perry on Trusts, § 463.)

3d. That the receipt by the treasurer of money of the county from time to time made him a debtor to the county. (Perley v. Country of Muskegon, 20 Am. R., 637, 639, and cases cited.) And it appears that at the time he received the plaintiff’s monéy, he was a debtor to the county in the sum of over $5,000.

4th. That the payment by the treasurer of the money so deposited by him in the bank, upon the liabilities of the county, was a payment pro tanto of his debt’ to the county in due course of business.

5th. That the county having received the payment in good faith, and without notice of the claim of plaintiff, is not liable to the plaintiff therefor. (Stephens v. Board of Education, 79 N. Y., 183; Southwick v. First Nat. Bank, 84 N. Y., 420, 435.)

I think that within the principle of the two last cases cited the case of Backer v. Supervisors of Schuyler County (3 Weekly Dig., 293) cannot stand, and it should be overruled.

Present — Learned, P. J., Rumsey and Osborn, JJ.

Judgment reversed, new trial granted. Referee discharged, costs to abide event.


author: Osborn, J.:

text:
    HARVEY HUNTER, Respondent, v. JAMES HERRICK and Others, Executors, etc., Appellants.

      Evidence —personal transactions with a deceased person — who cannot testify, because interested in the event — Code of Givd Procedure, sec. 839.
    After an action liad been brought upon the note of a firm against the surviving members thereof, and an execution issued upon a judgment recovered therein had been returned unsatisfied, this action was brought thereon against the executors of one who was claimed to have been a member of the firm.

      Held, that it was error to allow one of the surviving members to testify upon the trial as to personal transactions had with the deceased, which tended to show that the deceased was a member of the firm.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Andrews <& Edwards, for the appellants.

      D. Cady Herrick, for the respondent.
   Osborn, J.:

This action is brought on a promissory note made by L. Yandenburgh & Co. The complaint alleges that defendant’s testator, Castle W. Herrick, was a partner with Lucas Yandenburgh and Abram Bartlett under the firm name of L. Yandenburgh & Co., and as such was one of the makers of said note; that the partnership property of the firm of L. Yandenburgh & Co., has been exhausted, and that there are no effects of the firm to pay. the balance unpaid on said note; that Castle W. Herrick is dead, and the defendants are the executors, etc., of his last will and testament; that the surviving members of said firm are insolvent. The answer admits the due appointment of defendants as executors, etc., of Castle W. Herrick, deceased, and denies generally every other allegation in plaintiff’s complaint. It also denies specifically that Castle W. Herrick, Lucas Yandenburgh and Abram Bartlett were at any time copartners under the firm name of L. Yandenburgh & Co.

Upon the trial it appeared that the plaintiff had obtained judgment upon the note in suit against Yandenburgh and Bartlett as survivors of the firm of L. Yandenburgh & Co., and that execution had been issued thereon and returned unsatisfied.

Lucas Yandenburgh was called as a witness by plaintiff and interrogated as to a conversation between himself and defendants’ testator in reference to the formation of the alleged copartnership between Bartlett, defendants’ testator, and himself. The defendants’ counsel objected to any testimony by Yandenburgh concerning a personal transaction or communication between himself and defendants’ testator tending to show that deceased was a member of the firm of L. Yandenburgh & Co., on the ground that such testimony was inadmissible under section 829 of the Code of Civil Procedure. The court held that such testimony was admissible and overruled the objection, to which the defendants’ counsel excepted. Under this ruling and objection Yandenburgh testified in detail to the agreement between himself and Castle W. Herrick, deceased.

The appellants’ counsel insists that such testimony was inadmissible, and that the ruling of the court below was error for which the judgment should be reversed. Was Yandenburgh a “person interested in the event” of this action, and consequently within the prohibition of section 829 of the Code of Civil Preeedure ? We think he was within the letter and the spirit of the statute, and that the testimony objected to should have been excluded.

Our statute in removing the disqualification of parties and persons interested in an action, makes special exceptions as stated in section 829 of the Code of Civil Procedure; hence in such exceptional cases we must adopt the common-law rule as to what is sufficient interest in the event of an action to disqualify a witness.

In Marquand v. Webb (16 Johns., 89), the action was to recover for repairs performed by the defendants in error upon a certain privateer, of which the plaintiff in error was charged to be a part owner. On the trial one Gomez, a part owner of ,the vessel, testified for plaintiff that defendant was also a part owner. On this ground the judgment was reversed. The court says: “ lie (Gomez) was undoubtedly interested to render the burthen upon himself as light as possible and to throw it on the defendant in part. * * * The witness (Gomez), being confessedly, by his own admissions on-the voir dire, a part owner, would be answerable in contribution, and his interest in making the defendant below an owner was promoted by increasing the number of those chargeable and thereby mitigating his own loss.”

In Pierce and another v. Kearney (5 Hill, 82), the action was to chaise the defendant as a stockholder of the Rossie Galena Company for a demand contracted by the company. The action was under a provision of the charter of the corporation, which makes the stockholders ultimately liable, jointly and severally, for a demand contracted by the corporation. On the trial one Gilbert, who was president of the company, was offered as a witness by the plaintiffs and objected to by the defendant on the ground that he was a stockholder and interested in the event of the action. The objection was overruled, and Gilbert testified to facts tending to prove defendant a stockholder. Held, error.

Nelson, Ch.- J., says: “The witness (Gilbert) being jprima facie liable for the whole debt, is called for the purpose of bringing in another to share in that liability ; whereas, for aught that appears, without his testimony the plaintiff would fail, and the whole liability devolve upon the witness. And there is this further reason in the case of a joint demand, viz.: that the recovery would extinguish the original liability and cut down that of the witness to a simple claim of contribution.”

In the case cited, the authorities on a disqualifying interest are carefully reviewed, and seem by analogy to hold that one in the position of Yandenburgh is within the common-law prohibition, and hence within the provision of our statute. Andrews v. National Bank of North America (7 Hun, 20); Le Clare v. Stewart (8 id., 127); Richardson v. Warner (13 id., 13); Rill v. Hotchkin (23 id., 414); Wilkins v. Baker (24 id., 32); Church v. Howard (79 N. Y., 415), are the more recent authorities cited by the learned .counsel for the appellant, and which hold substantially the same doctrine.

The testimony of Yandenburgh is the only positive proof that the defendant’s testator was a member of the firm of L. Yandenburgh & Co. Yandenburgh was of necessity “ interested in the event” of the action, in that it might establish a liability on the part of the defendants to contribute towards the discharge of the indebted-' ness of the firm of L. Yandenburgh & Co., of which he, Yandenburgh, was a member. His interests were hostile to the defendants.

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

Learned, P. J\, and Eumsey, J., concurred.

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