author: Per Curiam.

text:
    Bank of Hamilton, Resp’t, v. Edwin D. Klock, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Evidence—Parol
    In an action on a surety "bond by the obligee, the obligor may show that the bond was made for a specific purpose to the knowledge of the obligee, but was used by him in direct opposition to such agreement.
    Appeal from a j udgment entered on a verdict directed by the court in favor of plaintiff.

      Risley & Robinson, for app’lt; Arthur M. Beardsley, for resp’t.
   Per Curiam.

This was an appeal from a judgment entered in Oneida county May, 24, 1893, upon a verdict directed by the court. The action was to recover on two bonds executed by the defendant, the first of which was as follows:

“ Know all men by these presents that I, E. D. Klook, of the city of Utica, in the state of New York, for divers good causes and considerations me thereunto moving, have covenanted, promised, and agreed, and by these presents do covenant, promise, and agree, to and with the Bank of Hamilton, its successors and assigns, that George F. Hawkins will, upon the maturity thereof, pay a certain promissory note for two thousand dollars, bearing date on the first day of April, 1891, made by said George F. Hawkins, payable seven months after the date thereof, with interest at the rate of seven per cent, per annum, to the order of the said George' F. Hawkins, and indorsed by him; and I do guaranty to the said bank the payment of the said note.
“ Witness my hand and seal this first day of April, 1891.
“ [Seal.] E. D. Klook.”

The second bond was in the same form, and given to guaranty the payment of a note of $1,000, bearing date June 15, 1891, payable five months after the date thereof.

The answer of the defendant admitted the incorporation of the plaintiff ; that it carried on business at Hamilton, in the province of Ontario ; that the defendant resided at the place alleged in the complaint; and admitted the execution of the bonds. It was then alleged, among other things, that the bonds were signed, executed and delivered upon the representation of Hawkins that the notes referred to therein were to be discounted in due course of business by the plaintiff, and the proceeds thereof placed to the credit of Hawkins, to be used and employed by him in the conduct of his business at Orangeville, Ontario, in the purchase, packing and selling of eggs ; that said notes and obligations were to be delivered to the Hamilton Bank for the purpose of procuring said bank to discount said papers, and pass the proceeds of such discount to the credit of the said Hawkins, to enable him to continue and carry on his business at Orangeville ; that said notes and obligations were not to be used or employed in any way as collateral security to the plaintiff for any obligation that the bank then "or thereafter might hold against the said Hawkins otherwise than by discounting said notes, and placing the proceeds of said discount to the' credit of said Hawkins, to be used by him in the due course of business ; that the plaintiff was made acquainted .with the conditions upon which said obligations were executed and delivered; that in violation thereof, and of the agreement upon which the same were delivered, it took said notes,.and did not discount the same, or place the proceeds of said notes, when discounted, to the credit of said Hawkins, to be used in his business, but, on the contrary, it held said notes and obligations as collateral security to other indebtedness which said Hawkins was owing said bank, and did not present said notes for payment in the due course of business, but held the same long after they were past due, holding them as collateral security, when the account of said Hawkins with the bank was sufficient in amount to have paid said notes; that the same were not protested for. non-payment, but were held by the bank in violation of the terms on which said notes were delivered to the plaintiff, and contrary to the .terms upon which said agreement was delivered, and in violation of the agreement upon which they were so executed and delivered to said bank; and that the notes referred to in said bonds were diverted, misappropriated and misapplied, in violation of the rights, understanding and agreement with the defendant and said Hawkins.

On the trial the following, proceedings and rulings were had and made:

“ By the court: We will assume that the letter was destroyed. By defendant’s counsel: And that it was shown to the cashier of the plaintiff by Hawkins, after its receipt, that the guaranty was forwarded in return after conference with, and with the knowledge of, the plaintiff’s cashier, with a letter to Mr. Klock, inclosing the guaranty. The court: Assuming -those facts, go on. The defendant’s counsel offered to show contents of this letter, and made the following statement: I desire to show that the letter stated this in substance—-I do not give it in detail—that it stated that-he would sign the guaranty of the payment of two notes, one of $2,000, and another of $1,000, the notes substantially as described in this paper; but that he would not guaranty the paper to be used as collateral, or other than in the usual course of business; and that the guaranty should only be valid as to the paper indicated and attached if discounted by the plaintiff. I shall follow it by showing that the letter was shown by Mi1. Hawkins, who received it, to the then cashier of this plaintiff; that Mr. Hawkins and the then cashier, for the purpose of procuring the execution of Exhibit A, wrote him inclosing Exhibit A, and saying to him that the note should only be used for that purpose, when it was intended by them to be used as collateral only ; and that, in reliance upon it, he executed Exhibit A, and returned it; and that the note of which Exhibit A is a guaranty was only used as collateral. Hot only showing it by other witnesses, but by a chain of circumstances by other witnesses. Also showing the same facts as to the one thousand dollar note by correspondence with reference to it, and by conversations. Mr. Beardsley : I object to it—First, as intending by parol to vary a sealed instrument; second, that Mr. Hahn is now dead. The evidence was excluded. The court: The evidence is excluded upon the ground that the liability of the defendant in this case is fixed by Exhibits A and B, which are under seal ; that they cannot be varied by a parol agreement; that, so far as the inducements or false representations having been made, which was the inducement that led to the execution of the instrument by the defendant, it cannot be shown, because fraud is not pleaded in the answer. The evidence will be excluded. Defendant’s counsel : I desire to follow it up by showing that Mr. Klock believed the correspondence to be correct, and relied upon it, and that the plaintiff and Hawkins both intended to deceive him in procuring it. The evidence was objected to. Objection sustained, and the defendant duly excepted. The defendant then asked leave to amend his answer, so as to admit this proof. The motion was denied and the defendant duly excepted. By defendant’s counsel: Mr. Hawkins is here, and I desire to prove the same facts by him as I stated. By the court: I think your offer is broad enough, as now stated, to cover that. At least the court has assumed that you would either prove by this witness, or some other witness to be called by you—Mr. Hawkins and other witnesses—the facts which you have stated. So you may have the exception squarely.”

Thus it is seen that the court refused to permit the defendant to show that the bonds in suit were made, signed, and delivered for a specific purpose; that it was expressly agreed by and between the maker, the defendant and the plaintiff’s cashier, that the notes which the bonds were given to secure were not to be used as collateral security; that the bonds were given upon the express understanding that they were not to be thus used; and that in direct opposition to such agreement they were so used by the plaintiff, and not for the purpose intended and agreed upon.

In Benjamin v. Rogers, 126 N. Y., 60; 36 St. Rep., 393, it was held that a transferee of negotiable paper, who takes it knowing that it was executed by an accommodation maker, and was transferred in violation of conditions or limitations imposed by such maker, cannot maintain an action thereon against him; and that such a maker has a right to determine for himself what use shall be made of it, and may impose seemingly immaterial conditions limiting its use; and no one can get title, as against him, who takes it with full knowledge, in violation of such conditions. In that case the action was upon a joint and several promissory note. It appeared that it was signed by the plaintiff’s testator as surety, solely for the accommodation of one of the other makers, and to enable him to borrow the amount thereof of Mrs. Petit, the payee. The latter having refused to make the loan, Calkins, for whose accommodation the note was made, applied to the plaintiff, who took the note with full knowledge of all the circumstances, paying part in cash and applying the balance in paying a pre-existing indebtedness of Calkins to him. And it was held that, as to the plaintiff’s testator, the note had no inception, and the plaintiff was not entitled to recover. The same doctrine was held in. United States Nat. Bank v. Ewing, 131 N. Y., 506; 43 St. Rep., 775. In that case an action was brought against the defendant, as indorser of a promissory note which was indorsed by defendant for the accommodation of the maker, and was transferred by the maker to the plaintiff, a bank of this state, as security upon a. precedent debt. The defendant’s testimony was to the effect that, in answer to his objection that he did not wish to be sued in this state, he was assured that the note would be negotiated in Kentucky, and that he indorsed upon that assurance. The court overruled a request that this testimony should be submitted to the jury, and directed a verdict for the plaintiff. Held error ; that, as the plaintiff was nót a bona fide holder for value, the note in his hands was open to the defense that, made for one purpose, it had been used for another, and that its diversion had discharged the indorser. The evidence offered by the defendant in this case was excluded on thegroundthat the defendant’s liability was fixed by the bonds in suit, and that the evidence offered tended to vary or contradict them, and was, therefore, inadmissible. In Juilliard v. Chaffee, 92 N. Y., 529, 534, it is said:

“ Certainly the general rule which excludes evidence of parol negotiations and undertaking, when offered to contradict or substantially vary the legal import of a written agreement, is not to be questioned or disturbed. In this state it has been thought to be so well settled in reason, policy, and authority as not to be a proper subject for discussion.' It has full application, however, within very narrow limits. In the first place, it applies only in controversies between parties to the instrument; New Berlin v. Norwich, 10 Johns., 229), and between them is subject to exceptions upon allegations of fraud, mistake, surprise, or part performance of the verbal agreement; nor does it deny the party in whose favor that agreement was made the" right of proving its existence by way of defense in an action upon the written instrument, under circumstances which would make the use of it for any purpose inconsistent with that agreement, dishonest, or fraudulent, Martin v. Pycroft, 2 De Gex, M. & G., 785, 795; Jervis v. Berridge, 8 Ch. App., 351. A party sued by his promisee is always permitted to show a want or failure of consideration for the promise relied upon, and so he may prove by parol that the instrument itself was delivered even to the payee, to take effect only upon the happening of some future event. Seymour v. Cowing, 1 Keyes, 532; Benton v. Martin, 52 N. Y., 570; Eastman v. Shaw, 65 id., 522, or that its design and object were different from what its- language, if alone considered, would indicate. Denton v. Peters, L. R. 5 Q. B., 475; Blossom v. Griffin, 13 N. Y., 569; Hutchins v. Hebbard, 34 id., 24; Seymour v. Cowing, supra; Barker v. Bradley, 42 id., 316; Grierson v. Mason, 60 id., 394. He may also show that the instrument relied upon was executed in part performance only of an entire oral agreement. Chapin v. Dobson, 78 N. Y., 75, or that the obligation of the instrument has been discharged by the execution of a parol agreement collateral thereto, Crosman v. Fuller, 17 Pick, 171, or he may set up any agreement in regard to the note which makes its enforcement inequitable.

The doctrine of the authorities cited is applicable to the question under consideration, and shows quite conclusively that the court erred in excluding the evidence offered. We are of the opinion that the evidence offered should have been received, and that its rejection was an error for which this judgment should be reversed.

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


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Clara Brown, App’lt, v. Sally Allen, et al., as Administrators of Emory Allen, Deceased, Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)
    Damages—Failure op title to land.
    Where title fails after a grantee of land has taken off most of the standing timber, which formed the principal value of the property, he can, in an action against him for the purchase price, counterclaim such damages as are commensurate with the eviction and consequent loss.
    Appeal from a judgment in favor of defendant.
    May 24, 1870, Marietta L. Brown sold and deeded to Allen & Wortham 357.14 acres of timbered land in Lewis county for $3,-171.40, of which $671.40 was paid down by cash and a note. The balance was secured by a bond, with a mortgage on the same lands. The deed contained the usual covenant of warranty. The deed was executed by Mrs. Brown and her husband. He died the following August. Allen & Wortham took immediate possession, and began cutting the hemlock trees, and peeling the bark therefrom. Practically all the hemlock, spruce, pine, and valuable hard wood were removed within three years. The bond and mortgage were not executed and delivered until January, 1872, and $969.66 was paid thereon July 18, 1874. The mortgage was assigned to the plaintiff in January, 1873. Wortham died intestate before this action was brought. There was unpaid oil the bond August 10,1892, $4,823.11. There was a comptroller’s sale of the premises, or some part thereof, September 23, 1871, for alleged taxes for the years 1861 to 1865, inclusive. There was another comptroller’s sale of the premises October 16, 1877, for alleged taxes for the years 1866 to 1870. The action was on the bond given for a part of the purchase-price of the lands in question. The answer set up the conveyance from Mrs. Brown to Allen & Wortham, the covenants contained in that deed, and averred that the title and possession were lost by a paramount title acquired in virtue of sales for taxes, which were liens prior to the conveyance. These facts were alleged separately by way of total defense for failure of consideration, as a partial defense for partial failure, as a set-off, or recoupment of damages, and by way of counter-claim. The court received in evidence five comptroller’s tax deeds, recorded more than two years before suit, which it was claimed covered all the premises, and deprived Allen & Northam of all they took under the Brown deed. The court also received, under the plaintiff’s exception, Appendix G of the first report of the forest commission, made to the legislature May 18, 1886, te prove eviction of Allen & Northam by the state from the lands in question. The plaintiff put in evidence the proceedings of the board of supervisor for 1860 and 1870, inclusive, which omitted to show that there was any action in estimating and “setting down ” in column five the tax against each piece of property in the town where this property was situated, and in delivering the official tax list and a warrant to the collector. The court found and decided that Allen & Northam lost all their title by reason of the tax deeds, that there was a total eviction, and that the consideration for the bond wholly failed. At the time of the alleged eviction the premises were practically denuded of timber, and were not worth to exceed $357.15.

      O. D. Adams, for app’lt; Thomas S. Jones, for. resp’ts.
   Martin, J.

This action has been here on a former appeal. Brown v. Allen, 10 N. Y. Supp., 714; 32 St. Rep., 796. The questions as to the eviction of the plaintiff and the admissibility in evidence of the acts of the forest commission were then considered by this court. The only question we deem necessary to consider at this time is whether-the court was justified in finding that the consideration for the bond in suit had totally failed, and, therefore, that the plaintiff was not entitled to recover. This decision was based on the theory that there had been a complete eviction of the grantees under a paramount title, and hence their .representatives were entitled to recover of the obligee in the bond, who was their grantor, the full sum of the consideration price mentioned in the deed to them, with interest; so that no recovery could be had by the plaintiff because of such failure of title and consequent eviction. The appellant, however, contends that the evidence was insufficient to sustain the finding of the court that there was a total eviction as to all the property that passed by the deed. The undisputed proof was that the grantees in the deed from Brown, while in possession of the property conveyed, removed from the land a large portion of the timber standing thereon when the deed was given. It was also proved that the chief value of the land at the time of its sale was in the timber. As the trees standing upon the land when the deed was given were a part of the real estate, and passed as such by the deed, and as they constituted the principal value of the real property purchased, can it be properly said that there was such a complete eviction as to entitle .the grantees to recover the full consideration paid or agreed to be paid therefor, or to insist that the consideration for the bond given by them had totally failed ? While the general rule, so far as it can be regarded as settled in this state, is to the effect that when the eviction is total the grantee may recover the amount of the purchase money, with interest from the time he loses the mesne profits, and not to exceed six years (Staats v. Ten Eyck's Ex'rs, 3 Caines, 111; Pitcher v. Livingston, 4 Johns., 1; Bennet v. Jenkins, 13 id., 50; Baldwin v. Munn, 2 Wend., 399 ; Dimmick v. Lockwood, 10 id., 142; Kinney v. Watts, 14 id., 38; Kelly v. Dutch Church, 2 Hill, 106; Hunt v. Raplee, 44 Hun, 149, 155; 7 St. Rep., 783), yet, when the eviction is partial, “ the measure of damages is such part of the original price as bears the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole.” Sedg. Dam. (8th ed.), § 970; Hunt v. Raplee, 44 Hun, 149; 7 St. Rep., 783. In Hymes v. Estey, 133 N. Y., 344; 45 St. Rep., 115, which was an action on a covenant of quiet enjoyment, where the breach consisted in the existence of a public street across the premises, Maynard, J., who delivered the opinion of the court in that case, said: “ The damages lawfully recoverable in such cases may be commensurate with the eviction, but cannot exceed it.” And it was held that the measure of damages was the depreciation in value, if any, of the lot at the time of the eviction, caused by the existence of the easement, with interest from that time, and plaintiff’s costs in the action which resulted in the eviction. In Huyck v. Andrews, 113 N. Y., 82 ; 21 St. Rep., 924, which was an action for breach of covenant in a deed which conveyed certain lands, and therewith an easement, it was held that the proper .measure of. damages for a breach of the covenant as to the easement was the difference between the value of the land without and with the easement. While we have been cited to no case where the precise question here involved has been determined, still we are of the opinion that the defendants were not entitled to be allowed the full amount of the purchase price of the premises as their damages for the breach of the covenant in the deed to Allen & Wortham. If the rule adopted by the court is an absolute one, which must be applied in all cases, its injustice can hardly be better illustrated than by this case. Here the grantees under the deed have received the timber, which was substantially all that they desired to purchase, and constituted at least nine-tenths of the value of the whole property. Yet, notwithstanding the fact that they have had the timber, they now ask, and the court at circuit has, in effect, awarded them, substantially the whole value of the land and trees purchased, on the theory that their eviction was complete, and that, under the rule of damages applicable in this case, they were entitled to be allowed that amount. I cannot believe that to be the law. Such a rule would be too repugnant to every sense of right and equity to exist where law is presumed to be based upon principles of justice. Wo are of the opinion that the eviction in this case was but partial. The most valuable part of the real estate purchased had been enjoyed by the purchasers, and they have reaped the benefit of its removal and sale. Under such circumstances, the damages to be allowed them or their representatives should be only those that are commensurate with the eviction and their consequent loss. If allowed such part of the original price as bears the same ratio to the whole consideration that the value of the land- at the time of the eviction bore to the land with the timber, they would receive all to which they were justly entitled. If some portion of the timber was removed after the title failed, as to that they might be liable to the present owners, and to that extent entitled to be allowed its value, in addition to the porportionate value of the land. We think the court erred in holding that the eviction of Allen & Northam was total, that the whole consideration for the bond had failed, and that the plaintiff was not. entitled to recover thereon. For this error we think the judgment should be reversed.

Upon a new trial it may appear more clearly what amount of timber, if any, was removed subsequent to the change of the title to the premises, and thus it may be determined. whether the defendants are entitled to be allowed more than the proportion which the value of the land bore to the value of the land with the timber.

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

All concur. ■ "


text:
    Aaron Humes, Resp’t, v. Thomas E. Proctor et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Damages—Trespass.
    In an action of trespass for cutting trees, the proper measure of damages is the difference between the value of the land before and after the trees were cut.
    3. Same—Treble.
    In such an action, treble damages are a legal consequence of the finding. of damages by the jury, where there is no affirmative finding by them of any of the facts mentioned in the last two subdivisions of section 1668 of Code.
    3. " Witness—Impeachment.
    Declarations of a witness as to the location of a boundary line are admissible to contradict his testimony at the trial.
    4. Evidence—Declarations.
    Declarations of a person in possession of land as to the extent of hi* claim are admissible to show the actual occupation by him.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, and from an order trebling the damages awarded on the trial.

      Watson M. Rogers, for app’lts ; Kilby & Kellogg, for resp’t.
   Martin, J.

This action was for trespass in cutting and removing trees growing upon the plaintiff’s land, without his consent. Treble damages were demanded in the complaint. The defense was a general denial, and a license by the plaintiff to do the acts complained of. The chief question litigated was whether the land upon which the trees in question stood was the land of the plaintiff, or belonged to one of the defendants. The proof on the part of the plaintiff tended to show that it was the plaintiff’s, while the defendants’ evidence was that it belonged to the defendant Proctor. The evidence of the plaintiff was sufficient to justify the jury in finding in his favor; hence the judgment should not be disturbed on the ground of the insufficiency of the plaintiff’s evidence, and it also follows that a nonsuit was properly refused.

The defendants contend that the court erred in certain rulings made on the trial, and for that reason the judgment should be reversed. The trespass complained of was the cutting out the trees-where a plank road was built through premises claimed by the plaintiff. The proof showed that a portion, at least, of the lot over which this road was built, was used by the plaintiff as a sugar bush. This particular lot originally contained about 130 acres. Subsequently the plaintiff gave his brother fifty acres of it; so that there remained about eighty acres in what was known as the “sap-bush lot.” On the trial the plaintiff, as a witness, was asked the value of the eighty acres before the cutting was done, and its value afterwards. This evidence the defendants objected to, “ as incompetent, immaterial, and not the proper basis for estimating damages; no evidence having been given which justifies proof of damages.” These objections were overruled, and the defendants excepted. In this ruling we find no error. The proper measure of damages was the difference between the value of this lot before the timber was cut and its value after the cutting and destruction of the timber complained of. Argotsinger v. Vines, 82 N. Y., 308, 313; Dwight v. Elmira, C. & N. Railroad Co., 132 id., 199, 202; 43 St. Rep., 723.

The plaintiff’s witness, Borman J. Hosmer, gave his opinion that the eighty-acre lot was worth $1,200,before the timber was cut, and $800 afterwards. On his cross-examination he was asked by the court if he thought the value of the trees that stood there was $500, to which he replied :

“ Bo, sir. I think the loss to the sap bush might have been that. My estimate was that the cutting of these trees, the loss to the sap bush,—that is the way we estimate; so that the trees might have been worth to the sap bush $400.”

The defendant’s counsel subsequently moved to strike out the estimate of the witness as to the value of the property before the building of the plank road and subsequently, as being incompetent, it not being based upon any market value, and that his estimate was based solely upon the value of the property for sugar purposes. This motion was denied. We think the court was justified in denying it. Moreover, it is manifest that the defendants were not injured by this ruling, as the jury awarded the plaintiff only the value of the trees cut.

Russet Harris was called as a witness by the plaintiff, and, under the defendant’s objection that the evidence was incompetent, “ but not on ground question was not put to Hoy,” was permitted to testify that Bathan Hoy said that the “stone corner ” was the northwest corner of Humes’ sugar-bush lot. This ruling was excepted to by the defendants, and they now insist that the court erred in admitting the evidence. It appears from the appeal book that Hoy had been called as a witness by the defendants, and had given evidence which tended to show that the stone corner was not the northwest corner of the plaintiff’s sugar-bush lot, and on his cross-examination had testified that he did not tell Russet Harris that it was. That this evidence was admitted for the sole purpose of contradicting the witness Hoy is made manifest by the charge of the court. The defendants’ counsel asked the court to charge “ that the declarations of Hoy (if they shall find any were made) to Mr. Harris are no evidence of where the north corner of the one hundred and thirty acre lot is; ” to which the court replied : “That is true. They were not given as evidence of the fact, but as contradicting other statements made by him.” In this ruling we find nothing that would justify us in reversing the judgment.

Nor do we find any error in the court’s permitting the plaintiff, as a witness to testify that when he and Pairad established the east corner, and put a stake there, the location of the northeast corner of the 29-acre lot was the subject of conversation. This was at most proving that, at the time when the corners of the 130-acre lot were established, attention was called to the northeast corner of his 29-acre lot. The conversation between them was not admitted, but only proof of the fact that a conversation was had.

The plaintiff testified that along in the winter he saw Mr. Flynn, and told him that Doucey had done a lot of damage on his land. This was objected to generally, without stating any grounds of objection. The objection was overruled; and the defendants excepted. On the plaintiff’s cross-examination, he had testified that he knew of Flynn and Connell, employes of the defendant Proctor, peeling bark down to the line southwesterly of the plank road. The manifest purpose of calling out this evidence was to show that the plaintiff had not had undisputed possession of the strip of land in question, and that his permitting them to thus cut and peel the timber thereon, without claim of ownership, was an admission of title in the defendant Proctor. To answer these claims, it was proper to prove by the witness that he did not submit to these acts in silence, but that at .the time he asserted that he had been damaged by the acts of Doucey, who was in their employ. Moreover, the evidence was within the principle that the declarations of a person in possession of land as to the extent of his claim or boundary are admissible to show the extent of the actual occupation by him. Abeel v. Van Gelder, 36 N. Y., 513; Donahue v. Case, 61 id., 631. The court committed no error in admitting this evidence.

We have also examined the exceptions to the charge of the court to which our attention has been called by the defendants, but have found none that requires a reversal. The charge was an eminently fair one, and properly presented the case to the jury in a clear and impartial manner. It was as favorable to the defendants as they could properly ask. In it we find nothing improper which could have in any way prejudiced the defendants.

Having now considered all the exceptions, to which our attention has been called, the only question left for consideration is as to the propriety of the order trebling the plaintiff’s damages. The complaint was obviously one for treble damages, under Code Civil Procedure, section 1668. Section 1667 of the Code provides :

“If any person cuts down and carries off any wood, underwood, tree or timber, or girdles or otherwise despoils a tree on the land of another, without the owner’s leave, * * * an action may be maintained against him by the owner. * * " ”

Section 1668 then declares:

“ In an action brought as prescribed in the last section, the plaintiff may state in his complaint the amount of his damages, and demand judgment for treble the sum, so stated. Thereupon, if, * * * where issues of fact are tried, the verdict * * ',:" awards him any damages, he is entitled to judgment for treble the sum so awarded, except that in either of the following cases judgment must be rendered for single damages only: (1) Where the verdict * * * finds affirmatively that the injury, for which the action was brought, was casual and involuntary; or that the defendant, when he committed the injury, had probable cause to believe that the land was his own. (2) Where the defendant has pleaded, and the verdict * * * finds affirmatively, that the injury for which the action was bought, was committed by taking timber, for the purpose of making or repairing a public road, or public bridge, * * * by authority of a commissioner or overseer of highways.”

It is quite possible that if the defendants had asked the jury to find affirmatively that the defendants, when they committed the injury complained of, had probable cause to believe that the land belonged to the defendant Proctor, it would have so found. But no such request was made, and the jury did not thus find. The provisions of the Code are in some respects unlike those of the Revised Statutes.' While the latter provided that if, upon the trial, it should appear that the trespass was casual and involuntary,.or that the defendant had probable cause to believe that the land on which the trespass was committed was his own, only single damages could be recovered, yet it did not contain the provision that the plaintiff is entitled to judgment for treble the sum awarded, unless the verdict finds affirmatively that the injury was casual and involuntary, or that the defendant, when he committed the injury, had probable cause to believe that the land was his own. The purpose of the change is said by Mr. Throop, in his note to that section, to have been to expressly require the defendant to establish, and the verdict to state, the facts which entitle the plaintiff to a judgment for single damages only. Thus, it would seem that, under the statute as it now stands, treble damages are a legal consequence of the finding of damages by a jury in such an action, where there is no affirmative finding by it of any of the facts mentioned in the last two subdivisions of § 1668; hence we see no reason to disturb this order.

Judgment and orders affirmed, with costs. ‘

All concur.


text:
    Hattie D. Huntley, Resp’t, v. Elmer E. Huntley, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Evidence—Divorce.
    Testimony by defendant that the acts, relied upon to show the adultery, were performed by him with the privity, procurement, collusion and connivance of the plaintiff, so that she might secure a divorce, is admissible.

      Appeal from a judgment in favor of plaintiff.

      F. Newell Gilbert, for app’lt; Winihrop D. Painter, for resp’t
   Martin, J.

This action was for an absolute divorce on the ground of adultery. The defense was in effect that the alleged adultery of the defendant was committed with the consent, connivance, privity, and procurement of the plaintiff, a denial of the plaintiff’s allegations of adultery, and a counter-claim setting up adultery upon the part of the plaintiff. The issues in the action were referred to a referee to hear and determine. He found that the defendant was guilty of adultery, that it was committed without the consent, connivance, privity, or procurement of the plaintiff, and that the plaintiff was not guilty of the acts of adultery charged by the defendant. The' special term had no power to examine the case upon the merits, or to reverse the report for errors or irregularities committed on the trial, and hence the only manner in which the defendant could review the trial before the referee was by appeal to this court. Schroeter v. Schroeter, 23 Hun, 230; Ross v. Ross, 31 Hun, 140, 146; Matthews v. Matthews, 53 Hun, 244; 25 St. Rep. 79 ; Ryerson v. Ryerson, 7 N. Y. Supp., 726; 27 St. Rep., 945. On the trial the defendant was called as a witness in his own behalf, and gave testimony which, if true, showed conclusively that he was not guilty of the adultery charged, and that the acts that were proved by the plaintiff, which were relied upon as evidence of the defendant’s adultery, were performed by the defendant with the privity and procurement of the plaintiff, and that she colluded and connived with the defendant to perform them so that she might secure a divorce. After this evidence was admitted, the plaintiff moved to strike out all the. evidence given by the defendant, as to conversations with the plaintiff tending to show connivance, as privileged; and the motion was granted. To this the defendant duly excepted. Without examining the question whether the plaintiff’s objections to the evidence were such as to justify the court in striking out the evidence after it had been received, if it was improper, we are of the opinion that the evidence stricken out was proper, as it not only "tended to show ■connivance on the part of the plaintiff, but also tended to disprove the plaintiff’s allegations of adultery, and that the learned referee erred in striking it out. By § 831 of the Code of Civil Procedure the defendant was a competent witness to disprove the allegations of adultery made by the plaintiff. This section does not limit the evidence to a simple denial, but gives the right generally to disprove the allegation of adultery by showing that the allegation is not true. The defendant cannot only deny the allegation, but can testify to any fact or circumstance within his knowledge competent and material on the question as to whether the act, as charged, was committed. Stevens v. Stevens, 54 Hun, 490 ; 27 St. Rep., 602. Applying the principle of the case cited to the question before us, it becomes quite manifest that much of the evidence stricken out was admissible as tending to show that the defendant was not guilty of the act of adultery charged, and ■of which the defendant has been found guilty. His evidence, which was quite strongly corroborated by the evidence of other witnesses, was to the effect that the plaintiff desired a divorce from the defendant so that she could marry another man, who ■could maintain her in idleness and dress her more extravagantly; that she requested her husband to go into a room with some other woman in the presence of witnesses, so that she might prove that fact by them, and thus obtain a divorce; that she finally induced him to consent to such plan upon her agreeing to pay the expenses of obtaining a divorce; that he went with her to see her lawyer; that he procured two witnesses, one a Mr. Miller, a cousin of the plaintiff, to go with to a house of ill fame ; that he went into a room with one of the inmates, but had no •criminal intercourse with her; that he then left the house; that ■the witness Miller, who was with him, immediately reported the fact to his wife; that the next day she went to the house and got his meals, and the following day they amicably divided their household goods,— and many other facts and circumstances tending to show that what was done by the defendant was done at the request of the plaintiff, and by her procurement, for the purpose of getting evidence upon which she ■could base an action for divorce. If this evidence was true, we have not only the evidence of the defendant denying that he committed adultery on that occasion, but the other facts and circumstances testified to by him which tend to show the purpose of his action, to corroborate his statement that he was not guilty of the offense charged, and to explain the circumstances which, unexplained, might tend quite strongly to show that he was guilty of the offense. We think the learned referee erred in striking out this •evidence, and that for such error the judgment should be reversed, as it cannot be said' his ruling was harmless to the defendant. In re Will of Eysaman, 113 N. Y., 70, 71; 22 St. Rep., 136. We are also of the opinion that the judgment in this case should be reversed on the facts. While we are not unmindful of the superior advantages possessed by the referee, who saw the witnesses, heard their testimony, and had an opportunity to observe their ■demeanor while testifying, and while we recognize the ability of the learned referee before whom this action was tried, still a careful examination of the evidence has led us to the conclusion that the findings of the referee are not sustained by that fair preponderance of evidence which would justify us in upholding the judgment.

Judgment and order confirming the report of the referee reversed on the law and facts, and a new trial ordered, with costs to •abide the event.

All concur.


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    Isaac Ostrander, Pl’ff, v. Egbert Snyder, Def't.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Evidence—Pabol.
    Parol evidence is admissible to show that the design and object of an instrument are different from what its language, if alone considered, indi- •

      2. Contract—Statute oe erauds.
    An agreement between parties to share in the profits or losses of a contemplated speculation in real estate need not he in writing.
    3. Evidence—Relevancy.
    Any circumstance, which tends to make the proposition at issue either more or less improbable, is relevant.
    Motion for a new trial under § 1001 of the Code.

      W. H. Johnson, for pl’ff; J. B. Holmes, for deft.
   Martin, J.

On the trial, the plaintiff claimed, and introduced evidence which tended to show, that in November, 1890, the parties entered into an oral agreement by which each was to furnish an equal amount of money to be used for the purpose of acquiring title to the lands mentioned in the complaint, the profits or losses to be shared or borne equally upon the sale of the same; that the defendant was to take the necessary steps to acquire the title to such lands; that in pursuance of such agreement the plaintiff delivered to the defendant, as a contribution on bis part to the funds necessary to make such purchase, the sum of $1,240 in checks or cash, and $100 which the defendant then owed him, the whole amount, $1,340, to be deemed and treated as a contribution by the plaintiff to the copartnership fund; that in pursuance of such agreement the defendant acquired the title to the land in question, used the money furnished by the plaintiff in paying therefor, procured the same to be conveyed to himself, and has since refused to recognize the plaintiff’s interest therein ; that the defendant has sold and disposed of a large portion of said land without consulting the plaintiff, or in any way accounting to him therefor, and mortgaged other portions; and that the value of the land greatly exceeds the cost and expenses of purchasing and caring for the same. The defendant admitted the delivery of the money by the plaintiff; the purchase of the lands ; that he took the title in his own name; that he has since insisted that the lands belong to him alone, and refused to treat the lands as copartnership property; and that he has sold and mortgaged portions thereof,— but denied that there was any agreement between himself and the plaintiff, whereby the plaintiff was to have any share or interest in the lands purchased by him. His claim was that the money which he received of the plaintiff was loaned to him. The defendant's evidence tended to sustain his contention that the money was loaned by the plaintiff to him and that there was no partnership agreement between the parties. Upon that question there was a direct conflict in the evidence. Upon conflicting evidence, the court has found, in favor of the plaintiff, that a partnership agreement was made by the parties, and that the money furnished by the plaintiff was not loaned to the defendant, but advanced as his portion of the partnership fund to be employed in the purchase of such lands. A careful reading of the evidence contained in his appeal book discloses that the finding of the court is fully sustained by the evidence.

At the time the plaintiff delivered the money furnished by him, the defendant gave him a paper which was as follows: “ East Worcester, December 22, ’90. Due I. Ostrander twelve hundred dollars. E. Snyder.” The plaintiff’s proof was to the effect that this paper was delivered as a mere memorandum, to show, in case any thing should happen to him, that he had had that sum, and was never intended as a duebill for money loaned. This evidence was objected to by the defendant as incompetent and inadmissible, and admitted under the defendant’s objection and exception. He now contends that the court erred in admitting it, for the reason that it tended to vary, contradict and defeat the terms of this written instrument, and that all prior and contemporaneous agreements were merged therein. “ A party sued by his promisee is always permitted to show a want or failure of consideration for the promise relied upon, and so he may prove by parol that the instrument itself was delivered, even to the payee, to take effect only on the happening of some future event. Seymour v. Cowing, 1 Keyes, 532 ; Benton v. Martin, 52 N. Y., 570; Eastman v. Shaw, 65 N. Y., 522, or that its design and object were different from what its language, if alone considered, would indicate; Denton v. Peters, L. R., 5 Q. B., 475; Blossom v. Griffin, 13 N. Y., 569; Hutchins v. Hebbard, 34 N. Y., 24; Seymour v. Cowing, supra; Barker v. Bradley, 42 N. Y., 316; Grierson v. Mason, 60 N. Y., 394; De Lavallette v. Wendt, 75 N. Y., 579.) He may also show that the instrument relied upon was executed in part performance only of an entire oral agreement, (Chapin v. Dobson, 78 N. Y., 75) or that the obligation of the instrument has been discharged by the execution of a parol agreement collateral thereto, (Crosman v. Fuller, 17 Pick., 171) or he may set up any agreement in regard to the note which makes its enforcement inequitable,” Juilliard v. Chaffee, 92 N. Y., 529, 535; Union Trust Co. v. Whiton, 97 N. Y., 172, 177; Schmittler v. Simon, 114 N. Y., 176, 184; 23 St. Rep., 160. We think the case under consideration comes within the principle upon which the exceptions to the general rule that parol evidence cannot be given to contradict, vary or modify a written contract rest, and that the doctrine of the authorities cited sustains the rulings of the trial judge in admitting this evidence.

The defendant also contends that, as the agreement between the parties was not in writing and signed by them, it was void, under the statute of frauds. The case of Babcock v. Read, 99 N. Y., 609, is adverse to this contention. In that case it was held that it was not essential to the validity of an agreement between parties to share in the profits or losses of a contemplated speculation in real estate that it should be in writing, and that it did not involve such an interest in the property as, under the statute, required a written contract, citing Traphagen v. Burt, 67 N. Y., 30; Chester v. Dickerson, 54 N. Y., 1; Getty v. Devlin, id., 403 Coleman v. Eyre, 45 N. Y., 39; Forster v. Hale, 3 Ves., 696; Bissell v. Harrington, 18 Hun, 81. We think the defendant’s contention cannot prevail.

On the trial the plaintiff called as a witness one Hallenbeck, who was permitted, under the defendant’s objection, to testify that on or about the 20th of December, 1890, and near the time when plaintiff let the defendant have $1,240, he (the witness) procured l'or the plaintiff, and let him have, $1,200; and subsequently he was permitted to testify that at the time the plaintiff obtained this money he told the witness that he wanted it to purchase some of the Clark property. The defendant now contends that these rulings were erroneous, and require a reversal of the judgment herein. We are of the opinion that the judgment should not be disturbed because the court admitted the evidence as to the plaintiff’s having procured the money through .Hallenbeck at that time. In the first place, there was no exception to the ruling of the court; and, secondly, the fact seems to have been practically admitted. The evidence that the money was procured of Hallenbeck having been admitted without exception, proof as to how the debt was to be secured was unimportant and harmless. Moreover, the fact that the plaintiff procured the money at that time was a circumstance which perhaps tended to make the defendant’s theory more or less improbable, and rendered the plaintiff’s theory more probable. “ It is revelant to put in evidence any circumstance which tends to make the proposition at issue either more or less improbable.” Whart. Fv., § 21. See, also, Burlew v. Hubbell, 1 Thomp. & C., 235; Hotchkiss v. Germania F. Insurance Co., 5 Hun, 90; Pomeroy v. Pierce, id. 119 ; Nicholls v. Van Valkenburgh, 15 id., 230; Wallis v. Randall, 16 id., 33, affirmed 81 N. Y., 164; Dishno v. Reynolds, 17 Hun, 137; Cornell v. Markham, 19 Hun, 275; Bean v. Carleton, 51 id., 318; 21 St. Rep., 220; Pontius v. People, 21 Hun, 328; affirmed, 82 N. Y., 339; Dryer v. Brown, 52 Hun, 321; 23 St. Rep., 695; Quincy v. White, 63 N. Y., 370.

The only other question presented is as to the validity of the defendant’s objection and exception to the admission of the evidence of the witness Hallenbeck that plaintiff told him when he obtained the money- that he wanted to buy some of the Clark property. Even if this evidence was inadmissible, it is not easy to see how the defendant could have harmed by it. It was at most a statement by the plaintiff that he wanted to buy some of the Clark property. He did not say he was “going in” with Snyder, nor what Clark property he wanted to buy. If it was to be understood from the question and answer that the plaintiff wanted the money he was then borrowing to purchase some of the Clark property, it would still be difficult to perceive how that evidence could have been material, or injured the defendant, as his theory arid proof were to the effect that the plaintiff was seeking to purchase some of the Clark property. Hence, the mere fact that the plaintiff said he .obtained the money to purchase some of the Clark property was as consistent with the defendant’s theory of the case as with the plaintiff’s. Under these circumstances, we think, if it was error to admit this evidence, it was harmless, and would not justify the granting of a new trial. Motion for a new trial denied, with costs.

All concur.


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    The People, Resp’t. v. Samuel P. Hill, App'lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Appeal—Modification.
    The general term, where its memorandum of decision, reversing conviction, fails either to direct a new trial or to discharge the defendant, has power to amend the order so as to make it conform to the decision intended to he made.
    Motion to correct order of reversal.

      James J. Baumes, for appellant; W. F. White, for respondent
   Per Curiam.

This is a motion to correct an order made by this court reversing the judgment of the oyer and terminer by adding to such order a direction for a new trial, or that the defendant be discharged, or his bail exonerated, as required by Code Grim. Proc. § 445. The defendant was indicted for murder in the second degree, and at the oyer and terminer held in Delaware county, September, 1890, convicted of manslaughter in the second degree. From the judgment of conviction thus rendered an appeal was taken to this court, where the judgment was reversed for errors in rejecting evidence offered by the defendant and in the judge’s charge. People v. Hill, 20 N. Y., Supp. 187; 47 St. Rep., 777. In the memorandum of decision handed down by this court it was stated that the judgment and order were reversed, without directing a new trial, or discharging the defendant or his bail. In pursuance of that memorandum the defendant caused an order to be entered in the office of the clerk of Oneida county, where the court was held when the decision of this appeal was made; and the clerk of that county thereupon certified a copy thereof to Delaware county, where the original judgment roll was filed. Subsequently this motion was made, and the court of oyer and terminer was requested to return to this court the papers and proceedings sent to the clerk of Delaware county, and the judgment entered therein, to be used upon the consideration of this motion. With that request the court of oyer and terminer complied, so that the judgment roll and all the papers in the case are now before us. These papers disclose that no judgment has in fact been entered on the decision of this court, either in Oneida or Delaware county, but that only an order has been entered. It is manifest that the decision handed down by this court, and the order entered in pursuance thereof, do not comply with the requirements of section 545. It is also manifest that the omission to comply with the provisions of that section occured through inadvertence, and not by design. That this court did not intend to discharge the defendant or exonerate his bail becomes obvious when we consider the grounds upon which the judgment and order were reversed. It is clear from the papers that the omission in this case was of a direction ordering a new trial in the court below, and such was the fact. Under these circumstances it is clearly the duty of this court to amend the order in this case, so as to carry into effect the actual intention of the court, if it has jurisdiction and power to make such an order at this time. The defendant contends that this court has no such power. His precise contention is that, the court having announced its decision, although upon its face it disclosed that it was imperfect in failing to comply with the requirements of the statute, the power of the court is spent, and it cannot amend the order so as to conform to the decision intended. We think this contention cannot be sustained. A bare inspection of the memorandum handed down by the court showed that it was imperfect and incomplete ; yet the defendant, who must have discovered that fact, saw fit to procure an order to be entered and certified, without in any way calling attention to the omission, or seeking to have the decisión amended, or to discover whether the court intended to discharge the defendant or to grant him a new trial. Upon these facts, and with all the orders and papers before us, we think we have power and authority to amend this order so as to make it conform to the decision intended to be made. Altman v. Hofeller, 137 N. Y., 619, 620; 51 St. Rep., 197; People v. Phelps, 18 N. Y., Supp., 699; 44 St. Rep., 737.

We find nothing in section 549 of the Code of Criminal Procedure that prohibits this court from granting the order sought. We are of the opinion that the intention of that section was not to prohibit an appellate court from so amending its order or decision as to make it conform to the decision intended, but that it applies only to a case where the decision of the court has been fully perfected in accordance with its intentions. Moreover, no judgment has been entered or remitted as required by section 547. While in some of the affidavits read upon this motion the affiants are made to say that a judgment was entered, still in each case they refer to a paper annexed as a copy thereof. When the paper to which they refer is examined, it .is found that it is not a judgment, but only an order, upon which a judgment might have been entered. By an examination of § 532 of the Code of Criminal Procedure it will be seen that, upon an appeal being taken, it is the duty of the clerk with whom the notice is filed to transmit a copy of the notice of appeal and of the judgment roll to the clerk of the county where the next general term is to be held. Section 547 declares that, after “ the judgment of the appellate court is given, is must be entered in the judgment book,” and when so entered “ a certified copy of the entry ” shall be remitted to the clerk “ with whom the original judgment roll is filed;” while § 548 provides that the decision of the court and the return shall be remitted to the court below in the same form and manner as in civil actions.” Thus the practice is clearly pointed out by the statute, and requires, among other things, that a judgment shall be entered in the judgment book in the county where the court is in session when the decision is made, and that it shall be certified to the county where the original judgment roll is filed. Until this is done a case must be regarded as still in the appellate court, and it must have sufficient jurisdiction to make an order granted by it to conform to its intended decision. Thus we are led to the conclusion that this court lias jurisdiction and authority to amend the order in this case, and that it should be amended so as to conform to the intended decision of the appeal herein.

Order amended in accordance with the foregoing opinion.


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    The People ex rel. Frederick E. Bates, Resp’t, v. Robert G. H. Speed, et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    Costs. —Mandamus against public officers.
    In proceedings, by mandamus, against public officers, the special provisions of section 3358 of the Code governs as to the allowance of costs.
    Appeal from an order denying the motion for costs.

      Robertson, Smith <& Bull, for appellants; Frederick Collin, for respondent.
   Per Curiam.

This is an appeal from an order of the special term denying a motion for costs and increased costs. The action or proceeding was commenced by an application, made upon affidavits, for an order to show cause why a mandamus should not issue directing the defendants Speed, Personious, Peters, and Cross, as inspectors of election of the town of Caroline, to reconvene as presiding officers and inspectors of election of a town meeting, and reannounce and declare that John Bull, the Democratic candidate for supervisor, was ineligible to the office, and requiring the defendant Lounsberry, as town clerk.of the town of Caroline, to cancel the record made by him relative to the town meeting, and the defendant Van Kirk, as clerk of the county of Tompkins, to transmit to the town clerk for cancellation the certificate received by him. An alternative writ was issued. An answer was interposed on the part of the defendants who were the inspectors of election, and a reply was served. Upon the issue thus made the case came to trial at the circuit, and the complaint was dismissed. Thereupon the defendants’ attorney made a motion for increased costs, which was denied.

The single question involved upon this appeal is whether the appellants, who were public officers, were entitled to have their costs allowed as provided by section 3258 of the Code of Civil Procedure, or whether the costs were controlled by section 2086, and hence in the discretion of the court. It was held by the special term that the costs were controlled by the latter section, and the court refused to allow the defendants the costs provided by that section, or as provided by section 3258. While section 2086 provides that upon the making of a final order in a case where an alternative writ of mandamus has been issued the costs are in the discretion of the court, section 3258 declares that, where the defendant is a public officer, and the action or special proceeding .is brought by reason of an act done by him by virtue of his office, or an alleged omission by him to do an act which it was his official duty to perform, on a final order made in a special proceeding commenced by a state writ, he is entitled to recover the costs prescribed in section 3251, and, in addition thereto, one-half thereof. An examination of the former section discloses that it relates generally to all cases where an alternative writ of mandamus has been issued, while the latter section relates to and prescribes the rule to be applied in a case where the defendant is a public officer whose act or omission as such has been called in question in an action or special proceeding commenced by a state writ. The provisions of the former section are general, while those of the latter are special. Under such circumstances, the general statute is to be read as silently excluding, from its operation cases which have been provided for by the special one. End. Interp. St. § 223. In this case we think the special provisions contained in section 3258 control the general provisions contained in section 2086, and that the defendants in this case were entitled to tax- their costs as provided in section 3258, and that the order appealed from should be reversed, and the defendants’' motion granted.

Order reversed, with $10 costs and disbursements, and motion granted authorizing cost's and increased costs to be taxed as provided by Code Civil Proc. § 3258.


author: Putnam, J.

text:
    In the Matter of the Accounting of Anna Parker Pruyn, as Executrix of the Last Will and Testament of John V. L. Pruyn, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed February 13, 1893.)

    1. Executors, etc—Accounting.
    A full settlement and release under seal between legatees and executors, which have not been attacked in any way, are valid" and an answer to an application by a party to the release to compel an accounting.
    3. Same.
    The fact that a party to such settlement is an executor as well as legatee does not prevent the settlement from being binding on him.
    Appeal from an order denying a motion made by the executrix to dismiss the proceedings, and directing her to render a full and complete account of all her procceedings as executrix of John Y. L. Pruyn, deceased.

      J. Newton Fiero, for app’lt; Barnwell B. Heyward (F. Countryman of counsel), for resp’t.
   Putnam, J.

The papers presented to us show that the parties-interested in the estate of John Y. L. Pruyn, as legatees, are Anna Parker Pruyn, his widow, John Y. L. Pruyn, Harriet Parker Pruyn and Huybertie L. Pruyn, his children. The two former qualified as executors, said Anna on January 17, 1873, and said John on March 24,1880, the estate, however, having been managed almost exclusively by the said Anna, and no considerable part thereof having been received by her said co-executor.

On or about September 11, 1893, said John Y. L. Pruyn, in a petition presented to the surrogate of Albany county set up the fact that he was a legatee under the will of said deceased, and also an executor, and that one of the legatees, Huybertie was a minor, and asked for an order compelling the said Anna Parker Pruynto render and settle her accounts of her proceedings as executrix of deceased. The surrogate thereupon issued the usual citation requiring the said Anna to show cause why she should not render, such account.

On the return day mentioned in the said citation she appeared and in her answer set up a release under seal executed by said petitioner and Harriet Parker Pruyn on June 15, 1889, after a full settlement and accounting between the parties, and asked that the proceedings be dismissed. Issue being thus joined between the parties the appellant introduced the said release in evidence. Ho other evidence was offered by either of the parties. The release is dated June 15, 1889, and is signed by Anna Parker Pruyn of the first part, John V. L. Pruyn of the second part and Harriet Parker Pruyn of the third part." After giving a history of the facts of the case and stating that the parties had examined the books and accounts relating to said estate from the death of the testator up to July 1, 1887, the paper contained the following clause: “ The said party of the first part does hereby release and discharge the other parties hereto, and each of them, of and from all liability for moneys received or had from said estate by them or either of them. The said party of the second part does hereby release and discharge the party of the first part of and from all liability to him, as executrix of the said will, and the party of the second part does also discharge and release the said party of the first part of and from all liability to him, as the former guardian of his estate.”

“ And the parties of the first and second part hereto, do mutually release each other from all and every claim and liability by reason of any thing relating to the said estate or the doings or proceedings of either of them, as executrix or executor of said will.” * * *

“ But this agreement is and is to be considered as a full settlement of all the accounts of the parties of the first and second part hereto, up to July 1st, 1887, and a ratification and confirmation of the division made that day, and a full and mutual release and acknowledgment of satisfaction between the parties of the first and second part, up to and including the said 1st day of July, 1887.”

The surrogate denied the motion made by appellant to dismiss the proceedings, and directed her to render a full and complete account of all her proceedings as executrix of John V. L. Pruyn, deceased.

We are unable to concur in the conclusion reached by the learned surrogate. The appellant, on the trial before the surrogate, introduced a release under seal, duly executed by the petitioner, which has not been attacked in any way, and which recited an accounting between appellant and petitioner as legatee and executor, and contained a full release and settlement up to July 1st, 1887. The case of Wagner, 52 Hun, 23; 22 St. Rep., 208; affirmed, 119 N. Y., 28; 28 St. Rep., 266, is quite similar, and we think, decisive of the question under consideration. That case holds that such a settlement and release between legatees and executors is valid, and an answer to an application by a party to the release to compel an accounting.

It is true that the release is not binding upon one of the legatees named in the will of testator, Huybertie L. Pruyn, not a party to it, and who is yet a minor, and if she should ask for an order to compel an accounting by the executrix this paper would be no answer to her application. But she has not applied for such an order; she is not a party to the proceeding, or in any way affected by it. The only parties here are Anna Parker Pruyn and John Y. L. Pruyn, who have already settled with each other as to all their transactions up to July 1st, 1887. Should appellant again account before the surrogate as to matters embraced in the settlement of 1887, in this proceeding the account would only be binding as between the parties to it. (Civil Code § 2742). It would have no more force than the account and release of 1887. The account sought for by respondent in this proceeding would not, as suggested, by respondent, be a final settlement. That could only be brought about by an accounting in which all the legatees were parties. It is true that appellant if compelled to account under the provisions of § 2727 Civil Code, might make an application for a final settlement of her accounts as provided by § 2728, Civil Code. But she would not be compelled to do so.

The parties then having voluntarily accounted with and released each other as to all transactions up to July 1st, 1887, we are of opinion that the appellant cannot again be compelled to account on the application of respondent as to matters for which she has already voluntarily accounted with him. We agree with the contention of respondent that the executors could not by a settlement between themselves release each other from their duty to the estate and to the minor who did not join in such settlement. They could, however, make an accounting as executors and legatees valid between themselves, and the legatee of full age who acquiesced in such settlement.

The fact that a party to such a settlement is an executor as well as a legatee, does not prevent the settlement from being binding on him. In the Wagner case, supra, there were six legatees interested in the estate, of whom, three were executors. The six had an accounting as legatees and executors, and executed a mutual release which was held valid. Afterwards the personal representative of one of the deceased executors made an application to compel an accounting. The learned judge who delivered the opinion of the court of appeals in his opinion remarks: “ Whatever standing the petitioner has, she obtained through the transmission of rights and interests from the deceased legatee, and if this paper represents a genuine transaction, is it conceivable that the deceased would have been heard upon such an application, if made by him ? He was executor, as well as beneficiary, and could he so dissociate himself in the one capacity from himself in the other, as to entitle himself to be heard by the surrogate to complain of fraud, or other causes, to invalidate the settlement ? Evidently that would be absurd.” Matter of Wagner, 119 N. Y., 35; 28 St. Rep., 266.

The above cited authority in effect determines that a legatee, who is also an executor, may make a valid settlement out of court with his co-executor and make a release binding upon the parties who join in the settlement.

We conclude that the account as far as made, and the release executed thereupon, is valid, and that appellant as far as she has accounted to respondent cannot be compelled to again account to him.

It is claimed by respondent, however, that the release was not intended as a final disposition of the whole of the estate. That it has attached to it a schedule of securities aggregating $30,000 which are declared to be held for certain purposes set forth in the will, thus showing that a large part of the estate is still undistributed. Eespondent also states that the will provides that a fund sufficient to produce $2,000 per year be set aside and maintained for a tax and repair fund as long as the widow occupied the family residence.

Why should the appellant be called to account by the respondent as to this fund? In the language of the schedule: “ The following property belonging to the estate of John Y. L. Pruyn, deceased, is set apart as a fund to yield an income for the payment of ordinary taxes, water rates, insurance and repairs of the dwelling house and grounds on the northeasterly side of Elk street, etc. At the end of the schedule is the following sentence: “ The above setting aside of securities done by us and agreed to March 23, 1887.” Signed, Anna Parker Pruyn, executrix, John Y. L. Pruyn, executor.

It appears therefore, by the release and schedule attached, that the respondent himself, in connection with appellant, has set aside $30,000 for the purpose of carrying out the provisions of the will Before the surrogate he does not suggest or claim, nor does he on this appeal, that said property was so set aside improperly; that there was any fraud or mistake in the transaction; that the amount was in excess of the amount required, or any reason why the appellant should render an account to him as to the fund which he in fact so set apart for the purposes of the will.

We think the release, in the absence of other evidence, is an answer to the claim of respondent for an accounting. The petition herein should not be deemed made by John Y. L. Pruyn as an executor. The only parties to this proceeding are Anna Parker Pruyn and himself. If an accounting were had they are the only parties bound by the decree. Hence the respondent in this proceeding is acting only for himself and occupies the position of a legatee. If he desired to act as executor it would have been his duty to apply for a final settlement and have a citation issued to all the parties interested in the estate. As we have seen, this is not such a proceeding.

If before the surrogate there had- been any evidence that since the settlement of 1887 the appellant had received any property, or that the property set aside as aforesaid was in excess of the amount required, or that it was not so set aside in pursuance of the provisions of the will, the surrogate might have required an accounting. But under the papers and proofs in fact before the surrogate, we think the order from which the appeal was taken was improvidently granted.

The appeal papers herein contain a stipulation that the case contains a correct copy of the order and “ the papers upon which the court below acted, in making such order.” We think, therefore, that we can properly pass upon the questions presented to us by the appellant.

Order reversed, with costs and disbursements.

Mayham, P. J., and Herrick, J., concur.


text:
    Francisco Wood, Resp’t, v. The Town of Gilboa, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 13, 1894.)

    1. Towns—Highway.
    It is a question for the jury whether a town is, or is not, negligent in failing to erect suitable railings along the side of a highway in dangerous places.
    2. Same—Liability.
    Where there is a defect in a highway, one whose horse becomes fright" ened and runs away can recover, though the conduct of the horse is a proximate cause of the injury,
    3. Evidence—Negligence—Complaints.
    Exclamations of pain, made by the injured party after the accident, while his attendants were turning him over or touching him, are competent
    4. Appeal—Harmless.
    Improper evidence is harmless, where the point, upon which it bore, was clearly established by competent, uncontradicted testimony of other witnesses.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial on the minutes.

      Gilbert & Andrus {C. L. Andrus of counsel) for app’lt; Krum db Grant {Robert Krum of counsel) for resp’t
   Putnam, J.

Questions similiar to those presented in this action have been so often passed upon that an opinion seems unnecessary.

The case of Maxim v. Town of Champion, 50 Hun, 88 ; 23 St. Rep., 945; aff’d, 119 N. Y., 626, and many other authorities which might be cited, have established the doctrine that it is a question of fact for a jury whether a town is or is not negligent in failing to erect suitable railings along the side of a highway in dangerous places. That question was fairly and property submitted to the jury in this case, and the verdict establishing the negligence of defendant cannot be disturbed. In Maxim v. Town of Champion it was also held that the action of the highway commissioners in failing to erect barriers in such a case was not of a judicial charcter; and also, the fact that the highway had been in the same condition for a long period, and that no previous accident had oceured, although proper evidence in the case did not relieve the town of the charge of negligence.,

Hence the verdict of the jury upon conflicting evidence establishing the negligence of the town officers in omitting to erect barriers at the place in question cannot be properly disturbed by us. . _

_ Appellant urges that the plaintiff was guilty of contributory negligence in driving a horse that he knew to be vicious and unmanageable. There was evidence in the case, however, from which the jury could infer that the horse was no inore vicious and unmanageable than colts usually are. The question of fact in this regard was submitted to the jury by the court without objection by defendant, and the finding of the jury is conclusive.

The defendant also insists that the accident being the result of two causes, one the defective condition of the highway, and the other the conduct of plaintiff's horse, and the evidence not showing which cause produced the injury, the plaintiff must fail under principles settled in Taylor v. City of Yonkers, 105 N. Y., 202; 7 St. Rep., 332, and kindred cases. We think this case is more like Ring v. City of Cohoes, 77 N. Y., 83; Kennedy v. Mayor, 73 N. Y., 365, and Ivory v. Town of Deerpark, 116 N. Y., 477; 27 St. Rep., 643. These, latter authorities held that where there was a defect in the highway, one whose horse became frightened, ran away and became uncontrollable, could recover although the conduct of the horse was a proximate cause of the iujury, if the negligence of the officers of the town was another proximate cause of the injury.

IE the highway was in the same condition as it was at the time of the accident for many years prior thereto notice of its unsafe condition to the officers of the the town is presumed.

We have examined the exceptions taken on the trial to the rulings of the court and think that none of them require a reversal of the judgment. The statements of the plaintiff after the accident (which defendant insists were erroneously in evidence), as proved by witness Croswell and others, we think, should be deemed mere exclamations of pain. They were made while his attendants were turning him over or touching him, and we think, not incompetent under the cases. Roche v. B. C. & N. R. R. co., 105 N. Y., 294, 297; 7 St. Rep., 361; Hagenlocher v. C. I. & B. R. R. Co., 99 N. Y., 136.

An examination of the testimony given on the trial, however, shows that if the above evidence was improperly received it did no harm, as the condition of plaintiff after the accident and his pain and suffering was clearly proved by other witnesses who were not contradicted.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs; Herrick,!., dissenting.


author: Herrick, J.

text:
    Frank Brown, Resp’t, v. The Root Manufacturing Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 13, 1893.)

    1. Referee.—Ejectment.
    In case a new trial of an action of ejectment, tried by a referee named in a stipulation, is granted, the court must appoint another referee unless the stipulation otherwise provide.
    Appeal from an order denying a motion to appoint another referee, in an action of ejectment, in the place of a former referee.

      Jenkins & Cooper (Kugene Burlingame, of counsel) for app’lt; Doyle db Kilts (C F. Doyle, of counsel) for resp’t.
   Herrick, J.

This is an action of ejectment to recover possession of certain premises in the city of Cohoes.

The attorneys for the respective parties, by a written stipulation, referred the action to an attorney of this court as sole referee, to hear and determine. The referee made his report finding in favor of the defendant, judgment was thereupon entered against the plaintiff, with the costs of the action.

Thereafter, at a special term of this court, an order was entered under § 1525 of the Code of Civil Procedure, vacating said judgment and granting a new trial, upon the payment of defendant’s costs. The plaintiff paid defendant’s costs, and thereafter the defendant, by his attorney, made a motion at a special term, asking to have the action referred to some other referee to hear and determine the same, in the place and stead of the former referee.

The special term denied such motion, and from that order the defendant appeals to this court.

Section 1011, of the Code of Civil Procedure, provides that where an action has been referred and the referee named in the stipulation refuses to serve, “ or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee, unless the stipulation expressly provides otherwise.” The stipulation in this case did not provide otherwise.

This section refers to all actions, except those specially exempted therefrom by § 1012, and the exceptions set forth in this latter section do not include actions of ejectment. While a new trial in an ejectment action is a matter of right upon the payment of costs, still it cannot be had except upon an order of the court vacating the judgment and granting a new trial.

Here, then, we have in this case an action referred by consent of the parties, manifested by a written stipulation, to a referee to hear and determine, a hearing and determination by him, and the entry of a judgment thereon, and the granting by the court of a new trial; this, it seems to me, brings it plainly and squarely within the section of the Code referred to, it not being one of the cases expressly excepted therefrom.

The court below proceeded upon the theory that all proceedings subsequent to the joinder of issue in the action, were vacated by the order vacating the judgment, and granting a new trial pursuant to § 1525 of the Code, and cited as authority therefor the case of Wing v. De La Rionda et al., 131 N. Y. 422; 43 St. Rep. 305.

The portion of the case relied upon, is, that wherein it was decided that in an action of ejectment where a new trial had been granted and the costs, including an extra allowance upon the first trial, had been paid, another extra allowance may be granted upon the second trial; and the respondent relies upon that portion of the opinion upon page 431, reading as follows: “ In taking a new trial under such circumstances, and by virtue of the statute, the party availing himself of the privilege, in effect, commences or causes the commencement of a new action.” And again, at page 432, “Thus the new trial taken under the statute was, as I have said, in effect the bringing of a new action by vacating, as of course the old judgment and taking such new trial in the old action, instead of bringing another."

The doctrine established by that case, I do not think, should be extended beyond the question there expressly decided.

The section of the Code under which the new trial is had, only provides for vacating the judgment, and not for vacating anything prior thereto. It goes no further than is absolutely necessary, to grant the party a new trial; it provides for going no further back in the action than is necessary for that purpose.

Following literally the language of the opinion in the case of Wing v. De La Rionda, that the party taking a new trial “ in effect commences or causes the commencement of a new action,” would take us back, not only to the joinder of issue in the action, but to the summons itself, which is the paper or proceeding by which the action is commenced, yet it will hardly be contended that everything after the service of the summons is vacated, and new pleadings may or must be served. I think it cannot be successfully disputed but that the new trial provided for in actions of ejectment, must be upon the same issues as the first.

It is evident, then, that all the proceedings prior to the entry of the judgment, are not vacated, and that we must stop somewhere between the summons and the judgment, and the safest way, it seems to me, is to regard nothing vacated except what the Code expressly provides for, that is the judgment, and that every other proceeding taken before the trial, stands; that being so, the stipulation and order of reference are still in force, and it was the duty of the court to appoint another referee.

Order of the special term reversed, and order granted appointing another referee, with ten dollars costs of motion and ten dollars costs of this appeal, and printing and other disbursements.

All concur.


text:
    The People ex rel. Frederick A. Russell, App’lt, v. The Board of Fire Commissioners of the Village of Saratoga Springs, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 13, 1894.)

    1. Municipal Corporations—Officers.
    To entitle a party to reinstatement in office, after removal, he must show a clear legal right to such office.
    2. Same.
    Where offices are inconsistent with each other, or a union of them in the same person has a tendency to impair the public service, the occupant must surrender the one or the other if both appointments were conferred upon him at the same time, or, if they were conferred at different times, the acceptance of the last, forfeits the first office.
    Certiorari to review the proceedings of the Board of Fire Commissioners in removing the relator from the office of assistant chief engineer of the fire department of the village of Saratoga Springs.

      A. W. Shepherd, for app’lt; J. F. Swanick and J. T. Brusnihan■ (J. F. Swanick of counsel,) for resp’t.
   Herrick, J.

By § 26 of chapter 220, of the Laws of 1866, as .amended by § 1 of chapter 322, of the Laws of 1887, the Board of Fire Commissioners of the village of Saratoga Springs, has power to make the following appointments: “A chief engineer, at a salary to be fixed by them, but not to exceed $1000 per annum for the chief engineer, $125 per annum for the assistant engineer, and $600 per annum for the superintendent of the fire-alarm telegraph. They shall also have power to employ, on such terms as they shall think best, four or more firemen, not to exceed eight men for a hook and ladder company, and not to exceed twenty men for a hose company. The compensation for such firemen shall not exceed $600 per annum.”

On the first day of April, 1893, the defendants, the Board of Fire Commissioners, appointed the relator assistant chief engineer of the fire department, which appointment was accepted by the relator on the same day, by a separate and distinct certificate of appointment. The said Board of Fire Commissioners also appointed the relator a fireman of the fire department, for a term of one year, at an annual salary of $600, payable monthly, which appointment was also accepted by the relator; that both such appointments and acceptances were in writing, and the acceptances signed by the relator. Each appointment was for the term of one year, to commence May 1, 1893. At a meeting of the Board of Fire Commissioners, held on the first day of May, 1893, the following resolution was adopted: “ Whereas, It appears that Fred A. Bussell is at the present time doing the work of two men, • viz., that of permanent fireman and assistant chief engineer of the fire department; and it appearing that the two positions being too much work for one man to perform, be it resolved that the said Bussell be commanded to show cause, before a meeting of this board, to be held on the eighth day of May, 1893, at 7:30 o’clock, p. M., why he should not be removed from the position of assistant chief engineer of the fire department of the village of Saratoga Springs.”

The clerk of the board was directed to serve a copy of such resolution upon the relator, and it was served upon him on the second day of May, 1893.

On the eighth day of May, 1893, at a meeting of said Board of Fire Commissioners, the subject matter of such resolution came up, and the relator appeared, by his attorney, who objected to any proceedings looking to the removal of the relator upion the ground “ that there had been no charge of unfitness in his office presented against him, and no charge shown why he should be removed, and, therefore, the board has no power to remove him.”

The relator also presented a further communication which, after reciting his appointments and claiming that since that time he has done nothing and omitted nothing appertaining to the duties of the office, which calls for his removal, states: “ That he has not performed two mens’ work since such appointment, and is not now, nor was at the time of such resolution; that the work he has performed at the central house is in the line of, and not inconsistent with, the duties of his office, and does not conflict with it in any way; that when not on active duty as assistant chief he has taken part in the general work of the house, and when the chief has been absent he has assumed the duties of his office and performed them, and been at the house at all times during such absence, ready to act in case of fire, in the same manner that the duties of the office of assistant chief were performed by William Fitzgerald, during the year just passed.”

He further says: “ That by the arrangement now in force, and commencing with the appointment of William Fitzgerald, the assistant chief is a man on duty at the central house the same as the chief, and ready for duty at the sound of the alarm, and not as was the case before the assistant chief was not one of the permanent firemen, a man liable to be in any part of the town, and liable, also, to miss the alarm, and so be late at a fire or not get there at all.”

“ The undersigned, therefore, respectfully urges that there is no ground for his removal from the office on the grounds alleged in the resolution.”

After hearing the relator’s counsel, orally, the Board of Fire Commissioners, by resolution, removed the relator from the office of assistant chief engineer, and by another resolution appointed another person, to said office, in his place and stead.

The relator then commenced these proceedings, by certiorari, for a review of the proceedings of the Board of F11-e Commissioners, upon his removal, and for his reinstatement in said office of assistant chief engineer.

To entitle the relator to the relief he seeks, he must show a clear legal right to the office that he seeks to be reinstated in; it is of no consequence how informal or irregular the proceedings of the board may have been, if he is not legally entitled to the office. If he was not legally holding the office the board could dismiss or drop him from the roll, without a trial, and if they wrongfully did so, he being in fact legally appointed to and bolding the office, he would have his remedy for restoration by m'andamus. People ex rel. Mc Tigue v. Manning, 16 N. Y., Supp. 604; 42 St. Rep., 81; People ex rel. Kopp v. French, 102 N. Y., 583-6; 2 St. Rep. 533.

While it is not the office of a writ of certiorari to try title to office, yet, I think in a case of this kind, where the relator seeks to be restored to office, he must show his title to it, for the Code provides : (Section 2127, Code of Civil Procedure) “ That an application for a writ must be made by, or on behalf of, a person aggrieved by the determination to be reviewed,” and if it appears upon the papers that the relator was never entitled to the office from which it is claimed he has been removed, then he has not been aggrieved by the determination he seeks to review, and is not entitled to the writ.

As we have seen the statute provides that the board of fire commissioners shall have power to appoint a chief engineer, an assistant engineer, and four or more firemen.

It seems to me that by that it intended to provide for a specific number of persons, that it had in view the needs of the department, and the the number of persons necessary to perform its duties. When the law provided for a chief engineer, assistant engineer, and. four firemen, it appears to me that it contemplated that those positions should be held by different persons, and when the board conferred more than one of the appointments authorized to be made upon one person, it was contrary to the intent of the statute.

I think it is apparent not only from the title of the office, but' from the salary fixed by the statute, as compared with the others, that the assistant engineer was only expected to act in the absence or disability of the chief engineer, and it contemplated that the chief engineer should have at least four firemen to assist him, that being the minimum numbér authorized to be appointed.

In the event of the disability from any cause of the chief engineer, the assistant engineer acting in his place and stead, if he is at the same time a fireman, would have only three fireman to assist him, and to that extent the department would be crippled and its efficiency impaired..

The law does not favor the multiplication of offices in one person, and where they are inconsistent with each other, or where such, multiplication has a tendency to impair the public service, it will be held that the occupant must surrender the one or the other if both appointments were conferred upon him at the same time, or if they were conferred at different times, the acceptance of the one last made forfeits the first.

It is to be presumed that the legislature intended to provide for such offices as were necessary for the public service, and in fixing a minimum number, that it determined that that number at least was necessary for the efficient performance of the duties imposed upon the department, and any diminution of that force, by conferring the offices and emoluments of more than one office upon one person, impairs and cripples the public service, and is contrary to the intent and spirit of the statute and is void.

It appears here on the face of the relator’s petition that both of these offices have been conferred upon and accepted by him ; the first in order of appointment and acceptance, was that of assistant chief engineer, and the second that of fireman ;• and it further appears that he is now discharging the duties of fireman, and presumably receiving compensation therefor, and it seems to me therefore that he does not show that he was legally appointed to the office to which he seeks to be restored, for if he was appointed to both of these offices at once, such appointments were contrary to law as we have seen, and his title to either is not clear; if it is held that in law they were made at different times although on the same day, then his acceptance of the appointment of fireman being the last one made, forfeited the appointment of assistant chief engineer, and he was not legally entitled to hold it when removed, and therefore he is not aggrieved within the meaning of the statute by his removal therefrom, and is not entitled to the writ.

The writ of certiorari should be quashed, with fifty dollars costs, and printing and other disbursements.

All concur.