author: Barker, J.

text:
    The Delaware, Lackawanna and Western Railroad Co., Resp’t, v. Martha A. Gilbert, as Execturix, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Executors—Contracts of—Do no bind the estate of their testator.
    Contracts of executors, although made in the interest and for the benefit of the estate they represent, are the personal contracts of the executors and do not bind the estate.
    2. Same—May not impose upon the testator’s estate a liability by CONTRACT.
    An executor may disburse and use the funds of the estate for purposes authorized by law, but lie may not bind the estate by an executory contract and thus create a liability not founded upon the contract of the testator.
    3. Same—Rule not changed by Code Crv. Pro., § 814.
    The rule of law is not changed by Code Civ. Pro., § 814.
    4. Same—Power to carry on business—Extent of.

      Held, that a power conferred by a testator upon an executrix to carry on the starch business after his death, did not authorize her to create debts in the execution of that trust which could be collected out of the general assets.
    5. Same—Parties dealing with, are charged with knowledge of the limitation of their authority.
    All persons dealing with executors or trustees are charged with the knowledge of the limitations which the law places on their powers.
    6. Same—Language necessary in will to subject general assets to liability for debts of special business.
    Nothing but the most clear and unambiguous language demontrating in the most positive manner that the testator intends to make his general assets liable for all debts contracted in continuing a trade after his death, will justify a court in arriving at such a conclusion.
    7. Same—Judgment in action against—What will not de upheld.

      Held, that the complaint not being framed for the purpose of obtaining equitable relief against the property invested in the starch business, and a judgment so modified as to be enforced against such property not being enforceable with due regard to the rights of other creditors, such judgment would not be upheld.
    8. Amendment—When allowance of, will not be considered by an appellate court.

      Held, that an appellate court had no jurisdiction to determine before hand whether by an amendment an action so brought might be continued as a personal action against the trustee or presented as a suit in equity for the purpose of enforcing a lien upon the property in the business.
    Appeal from a judgment of the Erie county court entered upon a verdict in the plaintiff’s favor, and from an order denying the defendant’s motion for a new trial founded upon a case containing exceptions.
    The action was for the price of one car load of coal alleged to have been sold and delivered to the defendant as the executrix of the last will and testament of Colgate Gilbert, deceased. It was admitted by the defendant _ that there was an executory contract for the sale and delivery of the coal, but the delivery was disputed, and that was the only question of fact litigated on the trial. The verdict rendered by the jury was a general one, assessing the damages at $82.90. All the legal questions considered in the opinion were raised by proper exceptions made to rulings upon the trial.

      C. B. Wheeler, for app’lt; Frederick Howard, for resp’t.
   Barker, J.

It was conceded upon the argument that the form of the action is against the defendant in her representative capacity. In the body of the complaint the sale of the coal is charged to have been made to her as executrix of the last will and testament of the testator. By his will the testator authorized his executrix to continue the business of manufacturing and selling starch for the period of ten years from the time of his death, and to use the capital then invested in such business, and the proceeds and profits of the same not necessary to be used in conducting it, he directed to be divided and distributed between the executrix and his children.

It was conceded by both parties that the coal was purchased to be used in the starch business, which the defendant, as executrix, carried on after the death of her husband. The contract sued upon was not made by the testator. It was a contract entered into between the plaintiff and the defendant.

The rule is well settled that the contracts of executors, although made in the interest and for the benefit of the estate they represent, are the personal contracts of the executors and do not bind the estate. The principle of the rule is, that an executor may disburse and use the funds of the estate for purposes authorized by law, but he may not bind the estate by an executory contract and thus create a liability not founded upon the contract of the testator. Austin v. Munro, 47 N. Y., 360.

It is conceded by the learned counsel for the respondent that this was the rule prior to the adoption of the Code, but he contends that by the provision of section 1814 the rule has been changed, and upon the facts established by the verdict a judgment against the defendant in her representative capacity was regular and proper. The section is as follows: " An action or special proceeding hereafter commenced by an executor or administrator upon a cause of action belonging to him in his representative capacity, or an action or special proceeding hereafter commenced against him, except where it is brought to charge him personally, must be brought by or against him in his representative capacity. A judgment in an action hereafter commenced recovered against an executor or administrator without describing him in his representative capacity cannot be enforced against the property of the decedent, except by the special direction of the court contained therein.”1 None of the provisions of this section change the rule as it. existed prior to its adoption, that an action cannot be maintained against an executor in his representative capacity, founded on his promise based upon a transaction. which originated after the death of the testator. The statutory rule is but a mere codification of the rules of law and procedure as they existed at the time of its adoption.

In Thompson v. Whitmarsh (100 N. Y., 35), the court, in giving a construction to this section, said, that “upon new contracts made by the executor or administrator, and never existing in favor of the defendant, but growing out of the contracts and dealings of the former alone, the action is properly brought in the name of the individual.” That “the effect of the section, and the change produced by it, is upon the class of cases in which the action could have been maintained in either form; as where, upon a contract made with the decedent, the cause of action accrued after his death; or where, upon a debt or obligation due to the deceased, the executor or administrator has taken a new security or evidence of debt. It these cases before the Code the action might be in the individual or representative name, but now must be in the latter. See also Buckland v. Gallup (40 Hun, 61).

In Bingham v. Marine Nat. Bank (2 N. Y. State Rep., 638), it was also held that as to original contracts made by an executor, after the death of the testator, section 1814 had, in reality, made no change in the law as to the character or form of action against the executor making the contract.

The power conferred by the testator on the executrix to carry on the starch business after his death did not authorize her to create debts in the execution of that trust which could be collected out of the general assets. The executrix could not lawfully use the general assets for the purpose of supporting the special business of manufacturing starch, and if her contracts made in the carrying on of such business could be enforced out of the general assets it would be accomplishing through her action, in an indirect manner, what she was prohibited from doing directly. All persons dealing with the executors or trustees are charged with the knowledge of the limitations which the law places on their powers. Nothing but the most clear and unambiguous language, demonstrating in the most positive manner, that the testator intends to make his general assets liable for all debts contracted in the continuing a trade after his death, would justify a court in arriving at such a conclusion. Burwell v. Manderville’s Executors, 2 How. U. S., 560; Smiths. Ayer, 101 U. S., 330; Pitkin v. Pitkin, 7 Conn., 307. The executor was authorized by his testator to carry on a special business after his death, and it was held that the general assets of the testator were not hable to any creditors who became such after the testator’s death; and that such creditors had no lien on the general assets, although the devisees might eventually participate in the profits of the trade.

The trade creditor who may deal with the executor relative to the special business which he is authorized to continue, has, as his security, the personal liability of the executor and a lien upon that part of the estate of the testator which he has directed to remain in the business. He has no other remedy for the enforcement of his debt.

In Ex parte Garland (10 Vesey, Jr., 109), in speaking of the remedies of those who are creditors, not of the testator, but of the trade creditor, who becomes such after the death of the testator, it was stated: “ In the first place they may determine whether they will be creditors. Next, it is admitted they have á hen upon the whole fund that is employed in the trade; arid in addition they have the personal responsibility of the individual with whom they deal. * * * They have something very like a lien upon the estate employed in the trade. They have not a hen on anything else.” The American cases are in full accord with these propositions. Pitkin v. Pitkin, 7 Conn., 307; Laible v. Ferry, 32 N. J. Eq., 791; Lucht v. Behrens, 28 O. St., 231; Smith v. Ayer, 101 U. S., 330; Burwell v. Manderville, 3 How. U. S., 272.

We hold, therefore, that no cause of action against the executrix in her representative capacity was established by the facts averred in the complaint or proved upon the trial, and the defendant’s motion for a non-suit should have been granted.

Before judgment was entered the defendant moved to set aside the verdict and for a new trial, which was denied. The county court thereupon decided that a claim be inserted in the order denying a new trial permitting the plaintiff to enter a judgment containing a provision directing that “the judgment be enforced against the property of the decedent’s estate, invested in the business carried on by the defendant, as executrix, under the name and style of C. Gilbert, mentioned and described in the complaint, for the carrying on of which the coal in question was purchased,” and the judgment as entered was in conformity with these directions.

By the form of the judgment an attempt was made to change the form of action from one at law to one in equity, for the purpose of foreclosing the equitable lien which the plaintiff had upon the assets of so much of the decedent’s estate as was, at the time of the entry of the judgment, invested in the starch business. The complaint was not framed for the purpose of obtaining relief of this character, nor is the judgment, as now modified, capable of being enforced so that the rights of other creditors may be protected. Ordinarily, the trade creditors would have no occasion to resort to the enforcement of their equitable lien upon the assets unless the business had proved a failure and the trustee was unable, in the exercise of the powers-vested in him to dispose of the property so as to meet the pecuniary obligations of the business. The other creditors, if there are any, would be entitled to a hearing that, they might share, pro rata, in the distribution of the proceeds of the assets. In winding up the affairs of an insolvent business or estate, where the assets are not sufficient, to satisfy all demands in full, the court always proceeds upon the principle that equality is equity, and apportions the property pro rata among all the creditors. In order to obtain this result and carry out the principle of equality it is necessary to marshal the assets and for the court to take charge of the same upon the application of any one of the creditors, to be followed by such proceedings as will give all parties interested an opportunity to establish their claims. There is no precedent for the enforcement of an equitable lien in the mode and manner attexnpted in this action, and to permit the judgment, as it now stands to be executed, might lead to unjust results.

We do not need now to inquire whether the creditors must exhaust their legal remedy against the pei-sonal liability of the trustee before they would be at liberty to foreclose their equitable lien. As this actioix originated in another court, aixd is brought into this court by virtue of its appellate jurisdiction for the purpose of correcting errors in the court below, we have xxo power to detenxxine whether by amendment the action may be coixtinued as a personal action against the trastee, or presented as a suit in equity for the purpose of foreclosing the lien.

Judgment reversed and íxew trial graixted in Exie couxxty court, with costs to abide the event.

All concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Mary J. Gilligan, Resp’t, v. George Feuschter et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.

    1. Easement—What will create—Sale of land prom which ditch has BEEN CONSTRUCTED ACROSS OTHER LANDS OP VENDOR.
    An owner of land constructed a ditch through it, and subsequently conveyed a part which was drained thereby to one party, parting tliereafter with the title to other portions in lots to other parties. Held, that the fact that the lot so drained was sold and conveyed by the common owner prior to the time of the sale, and conveyance of the other lands through which the ditch extended, rendered it the dominant estate and the other lands servient to the purposes of such channel. •
    2. Same—Right to go upon servient tenement to make repairs.

      Held, that though this may n„t have been imposed upon the owners and occupants of the servient tenement any legal duty to keep the ditch open, and in suitable condition to carry off the water, it carried the privilege of the party beneficially interested in its maintenance to go upon the premises for the purpose of making the repairs necessary to the preservation of its usefulness.
    Appeal from judgment entered on verdict of Cattaraugus circuit, and from an order denying motion for new trial.
    The action is brought to recover damages alleged to have been sustained by the plaintiff, by the obstruction of the flow of water in its proper channel from her land. The plaintiff recovered, and the defendants appeal.

      J. R. & M. B. Jewell, for app’lts; George H. Phelps, for resp’t.
   Bradley, J.

The plaintiff has for some years been the owner of about five acres of land in Olean, bounded on the south by Irving street. The defendant Feuschter owned land south of the plaintiff’s, and the wife of the defendant Mallory owned lands further south. In 1853, or 1854, a ditch was made through all these lands in a southerly direction to the Allegany river, which operated to drain the lands. _ At_ the time the ditch was made, all the lands through which it ran to the river were owned by the parties who caused it to be made. They afterwards conveyed the lands in parcels, with the ditch then remaining there, operative as a means of drainage of these lands, which were somewhat wet and marshy, and especially so was that in question.

And the parties derived their title and right to the possession of the-lands occupied by them respectively, through several mesne conveyances, from the owner, before referred to, of the premises through which the ditch was made.

There is evidence tending to prove that the ditch remained effectual to drain to considerable extent the lands of the plaintiff, until in or about the year 1880, when it was obstructed south of her premises and upon the lands of Feuschter and Mrs. Mallory, by so plowing and cultivating the land where it was located as to partially fill it up with earth; that it was done by and under the direction of the defendants, and that the plaintiff was by them denied the privilege of going on to the premises to open the ditch.

Whether the drainage of the land in question was within the purpose of the original construction and maintenance of the ditch, was a question of fact which was submitted to the jury, and the evidence was sufficient to support their conclusion in that respect.

And in view of the fact that there was evidence to the effect that another party placed some obstruction to the flow of water in the channel at the south side of Irving street, the question as to the extent of the obstruction, and causing the water to remain on the plaintiff’s premises, and of the injury, if any, resulting to her therefrom, were occasioned by the defendants, was also properly submitted to the jury.

In view of these facts, which the jury were permitted to find, and which we must assume they did find, this ditch was in operation as a provision for the drainage of these lands at the time of the conveyances from the common source of title before mentioned, and of the several mesne conveyances to the parties who had the title to the several parcels at the time in question, and was apparently a maintained channel for the drainage of the land owned by the plaintiff.

The fact that this land was sold and conveyed by the common owner prior to the time of the sale and conveyance of the other lands, through which this ditch extended to the river, rendered it the dominant estate, and those other lands servient to the purposes of such channel. The purchasers of the several parcels from the common owner, and from those who made the mesne conveyances, may be deemed to have been made with a view to the easement, and the burdens which this artificial channel to carry off the surface water produced. And therefore the party owning the dominant estate had the right to have preseved and maintained this means of drainage of her lands. Lampman v. Milks, 21 N. Y., 505; Curtiss v. Ayrault, 47 id., 73; Outerbridge v. Phelps, 13 J. & S., 555.

This may not have imposed upon the owners and occupants of the servient tenement, any legal duty to keep the ditch open and in suitable condition to properly carry off the water, but the easement carried with it the privilege of the party beneficially interested in its maintenance to go upon the premises for the purpose of making the repair necessary to the perservation of, its usefulness. And such owners had no right to materially impair it in the cultivation of the lands through which the channel was constructed.

This ditch had been there for thirty years at the time of the commencement of this action. And so far as appears had been kept open and in operation as a channel, and the means of drainage of this land without interruption for upwards of twenty-five years. The jury have found all the facts requisite to the support of the easement, and to charge the defendants with liability for improper interference with, and impairment of its use. And the amount of damages given by the verdict has the support of the evidence.

The plaintiff’s title to the premises in question is not disputed by the pleadings or evidence. Ana the fact that she and those preceding her in ownership, back to the common source of title to these lands, had taken title to this land is presumptive evidence at least, that they also took as appurtenant to it this easement, and no question was raised to the contrary on the trial by evidence or otherwise so far as respects the terms of the deeds by which the conveyances were made. The evidence of title was furnished by admissions, and the deeds were not produced in evidence on the trial.

It is, therefore, unnecessary to consider the effect of an omission in a deed of conveyance of the term of appurtenances. Parsons v. Johnson, 68 N. Y., 66.

There seems to be no other other question requiring the expression of consideration.

The judgment and order should be affirmed.

Smith, P. J., and Haight, J., concur.


text:
    People of the State of New York, Resp’ts, v. Joseph Elliott, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Criminal law—Evidence op accomplice—Corroboration—Code Grim. Pro., § 399.
    The corroboration of the accomplice required by the statute in a criminal action is not sufficient if it merely shows the commission of the crime or the circumstances thereof. Code Grim. Pro., § 899.
    2. Same—When guilt not presumed.
    It is a general rule of evidence and of uniform application in criminal trials that where the fact proved or corroborated is consistent with innocence it cannot be accepted as any proof of guilt.
    3. Same—Social relations with criminal no evidence op guilt.
    The existence of intimate social relations is not a circumstance, standing alone, from which participation in the guilty acts of an associate is to be presumed, because it is consistent with entire innocence.
    4. Same—Admission op knowledge op pact does not necessarily prove guilt.
    In the aumission by the defendant, made long after the crime, that he knew who committed the forgery in question and was informed as to same of the plans and devices used by the accomplice to deceive the bank, and that money had been produced from the bank on a forged draft, there is no fact confessed from which it could be fairly inferred that the defendant did any act connected with the transaction or that he was aware that the crime of making and uttering a forged draft was meditated by any one.
    Appeal from a judgment of the Monroe county court of sessions, entered upon the verdict of a jury, convicting the defendant of the crime of forgery in the second degree and as a second offense The sentence was for imprisonment in the Auburn States Prison for the period of fifteen years. The facts are stated in the opinion.

      P. Chamberlain, Jr., for app’lt; J. W. Taylor, district attorney.
   Barker, J.

The general facts upon which the people relied for the purpose of establishing the guilt of the* prisoner, were testified to by George Edwards, who was, as he admitted, an accomplice in committing the forgery. The principal question presented arises on an exception taken on behalf of the prisoner to the refusal of the court to instruct the jury that there was no evidence in the case tending to connect him with the offense charged in the indictment except the evidence of the said accomplice.

The instrument forged purported to be a draft drawn by the People’s Bank of Montreal on the National Bank of the Republic of the city of New York, dated August 10, 1885, for the sum of $3,900, payable to the order of George Edwards. This paper the said George Edwards had in his possession in the city of Rochester, on the fourteenth day August, and on that day in the said city he endorsed the same, with his own name, and caused it to be presented to the Flour City Bank for collection, the proceeeds to be credited to his account with that bank. The bank immediately forwarded the same for collection and credited Edwards’ account with the amount thereof, and on the next day Edwards drew out the proceeds, on his own check, which was paid him in currency. The forgery, and the active and guilty participation of Edwards in the crime, was proven by the evidence of other witnesses than himself.

The single question we have to discuss in disposing of the exception now under consideration, is, does the evidence given by other witnesses than the accomplice, “tend to connect the defendant with the commission of the crime ” charged in the indictment. Section 399 of the Code of Criminal Procedure. The corroboration of the accomplice, required by the statute, is not sufficient, “if it merely shows the commission of the crime or the circumstances thereof.” Id.

The story of Edwards as to the scheme planned by himself and the defendant as to the forgery and as to the mode and manner of putting the paper in circulation is, as stated by him in his evidence, substantially as follows : That he and the defendant were acquaintances and resided in the city of New York; that a few days before the draft was presented and negotiated at the bank, the defendant proposed that they go to Rochester and open an account with some one of the banks in that city and draw money against it, and it was arranged that they should travel to that place by different routes, and meet at the post office in that city the next day, which they did; that the defendant directed him to open an account, in the witness’ name, in the Flour City Bank and the German American Bank, and pointed out to him the location of each, and supplied him with four or five hundred dollars in currency with which to make a deposit, which he did with each of the said banks, representing to the officers that he was about to establish a commission business in the city; that he rented an office and secured an office boy. He further testified that within a few days thereafter Elliott handed him the draft in question and directed him to deposit it in the Flour City Bank, and after endorsing the same he handed it to the office boy, who took it to the bank for that purpose; that the defendant then furnished him with another draft, similar in all respects to the one deposited in the Flour City Bank, with directions to deposit the same in the German American Bank, which he also endorsed, and sent the same to that bank, by the boy, for deposit; that on the next day he drew nut of the Flour City Bank, on his own check, the proceeds of the draft, in currency, and immediately met the defendant on the street near the bank and divided with him the money, and that he then sent his check, by the boy, to the American German Bank to draw out the proceeds of the draft, which had been left with that bank the day before, but the bank declined to pay the check, and, on being so informed, he and the defendant at once left the city.

By this evidence of the accomplice it appears that every act done in the connection with the forgery of the draft, and its discount by the Flour City Bank, together with the receipt and division of the avails was done and performed in the city of Rochester within the period of two days. There is no pretence that any act connected with the consummation of the crime was done elsewhere or participated in by any other person. It is clear, if the story, of the accomplice is true, the defendant’s guilt is established. It is also equally clear and conclusive, if his evidence is excluded from the case, there would be a want of sufficient evidence to establish the defendant’s guilt.

We thus have presented a case which requires careful consideration and a close examination of the evidence given by the witnesses other than the accomplice for the purpose of ascertaining if such evidence tends to connect the defendant with the commission of the crime, so as to satisfy the rule of evidence laid down by the statute. Prior to the statute, the rule in this state permitted the jury to convict a defendant on the uncorroborated evidence of the accomplice, but it seldom happened that an accused person was convicted on such unsupported evidence, yet, as there was no rule of ¿aw declaring that an accused person should not be convicted upon the unsupported evidence of an accomplice, it sometimes happens that convictions did take place on this class of evidence alone, and they were sustained by the courts on review. To prevent conviction upon the uncorroborated evidence of an accomplice, the legislature enacted, the statute. .The statute indicates the nature and extent of the corroborated evidence necessary to be produced by the people, so as to make a case for the consideration of a jury, whether or not they will believe the accomplice. The rule now embodied in the statute is substantially the rule, which before the statute, courts were in the habit of stating to the jury for their guidance, although, as has been stated, it was not enforced as a rule of law. People v. Hooghkerk, 96 N. Y., 149.

In this case the court remarked, that: “It is plain that independently of the statutory rule, corroborated evidence to have any value must be evidence from an independent source of some material fact tending to show, not only that the crime had been committed, but that the defendant was implicated in it, and such is the doctrine of the best considered cases. But neither the doctrine hitherto declared by the courts, nor the rule embodied in the statute, requires that the whole case should be proved outside of the testimony of the accomplice.”

Chief Baron Joy, in his treatise on the Evidence of Accomplices, page 98, after reviewing the case, says: “The only rule, therefore, which has the appearance of reason to support, is that which I have endeavored to show, as uniformly and without an exception laid down and acted upon by the English judges, which is: “That the confirmation ought to be in such and so many parts of the accomplice’s narrative as may reasonably satisfy the jury that he is telling the truth,’ without restricting the confirmation to any particular points and leaving the effect of such confirmation to the consideration of the jury aided in that consideration by the observation of the judge.”

Mr. Greenleaf, in his work on evidence, volume 1, section 381, lays down the rule that it is “essential that there should be corroborating proof that the prisoner actually participated in the offense.”

In Roscoe’s Criminal Evidence, 122, the rule is stated as-follows: “ That there should be some fact deposed to independent altogether of the evidence of the accomplice, which taken by itself leads to the inference, not only that a crime has been committed, but that the prisoner is implicated in it.”

By this rule, confirmation of the accomplice’s story as to wholly immaterial matters and the detail and circumstances connected with the participation of the crime, was insufficient, and it is now so expressly declared by statute. Lindsay v. The People, 63 N. Y., 143.

The several facts proved by the people, which are claimed to be in corroboration of the story of the accomplice, are wholly separate and distinct in their character, having no legitimate connection with each other, and may be best separately considered. It was shown by the evidence of the witnessess, that during the time the accomplice was in Eochester the defendant was also in the city in company with other persons, and that he registered at the hotel where he was a guest under an assumed name. But there is no evidence, aside from that of the accomplice, that he and the defendant were at any time in company together in the city or that either saw the other. The witnesses who saw and conversed with the prisoner do not pretend that they ever saw Edwards in Eochester.

The witness, Mr. Hathaway, president of the Flour City Bank, who stated that he saw both the prisoner and Edwards in the city, does nor pretend that he saw them together at any time or place during the fev days that Edwards was in the city; and on a Sunday he visited Charlotte, a pleasure resort, some ten miles from the city, and there witnesses testified that they saw Edwards and the prisoner together, ,gnd the latter introduced Edwards to a female, who was the prisoner’s companion at that time and place. However suspicious these circumstances may be that the prisoner was at Eochester and in the vicinity for the purpose of aiding and abetting Edwards in accomplishing the crime which he succeeded in consummating, they are not such as legitimately tend to prove that the prisoner did or aided in doing either of the acts which it was necessary to be done in drawing up the forged draft and putting it in circulation,. or that he shared in the division of the money procured from the bank thereon. The meeting of Edwards and the prisoner at Charlotte was before the draft was presented to the bank.

It is a general rule of evidence and of uniform application in criminal trials, that where the fact proved or corroborated is consistent with innocence, it cannot be accepted as any proof of guilt. The existence of intimate social relations is not a circumstance, standing alone, from which participation in the guilty acts of an associate is to be presumed, because it is consistent with entire innocence.

In Courtney's Case, reported in 28 Hun, 589, the defendant was convicted of the crime of forgery. Barton, the accomplice, testified to facts and circumstances which, if true, established his guilt. For the purpose of corroborating Barton’s evidence, and to connect Courtney with the forgery, the people proved by other witnesses that they were acquaintances and associated together every day for a fortnight at about the time the crime was committed, and that about fifteen minutes after the forged check was deposited in the bank they were seen together on the street near the bank building. The trial court held that this evidence tended to connect the prisoner with the crime, and left it for the jury to say whether they would believe the accomplice or not. The general term of the first department were of unanimous opinion that the corroboration was not of the character which the Code demands, and that it did not tend legitimately to connect defendant with the offense.

The evidence relied on as corroborative in the case now before us is of the same class and character of that which was produced in Courtney’s case, and is only different in attending circumstances. Mr. Hathaway, president of the bank, to whom Edwards introduced himself and arranged to open an account in the bank, testified that he saw the defendant in the police office in Rochester after he was arrested, and then added, “ And I think I have seen him once in the bank.” If this evidence is sufficient to establish the claim made by the people that the prisioner was at some time in the bank it does not state any fact or circumstance connected with his presence there indicating that he was implicated with the forgery. The time when he was there is not given, and it cannot even be said that it was during the time that Edwards was in the city planning and scheming to procure money from the bank by means of forged paper.

The further evidence upon which the people relied as tending to connect the prisoner with the crime is in the' nature of a confession made by the prisoner to the police officer while under arrest, that he knew who committed the forgery. The defendant was arrested in the city of New York on the 18th of March, 1886, by Hayden, a detective, and while on the cars from New York to Rochester they had a conversation together, and Hayden’s evidence is as follows: “Elliott asked me if I had anybody in Rochester under arrest; I asked him why; he said he wanted to know, that there must be somebody who had done some talking; further, I asked him why he didn’t get the money at the German-American Bank, that he might just as well have got that there as at the Flour City; he said, is that what you want me for; I said yes; he said, If that is what you want me for, I can show that I am not the party if you want me for getting the money there;’ and he asked me how they described the man, and he said he could stand up in any place, with whiskers on or off, and see if they could identify him as the man who had put the money there; I said I thought possibly they could identify him as the man, and he said, ‘No, you are mistaken; I didn’t do it, but I know who did;’ and then Wilkes, who was also under arrest and in charge of the .same officer, said, ‘No, you are mistaken, he is not the man who put the draft down there and got the money, unless Joe (the prisoner) has lied to me;' that is about all that was said; he was talking on other subjects coming up and quite jolly.”

The most that can be deduced from this evidence is an admission by the prisoner to the effect that he knew who committed the forgery and was informed as to some of the plans and devices used by Edwards to deceive the bank, and that money had been procured from the bank on a forged draft. But there is no fact confessed from which it can be fairly inferred that the prisoner did any act connected with the transaction or that he was aware that a crime was meditated by Edwards or any one else, and the admission is consistent with the position that all the information that he had upon the subject was acquired after the crime was consummated.- The time of the conversation related by the detective officer was months after the crime had been consummated and its commission known to the public. Moreover, it appears by the people’s evidence, that the prisoner and Edwards were frequently together after the forgery, and he had an opportunity to learn from the latter of its commission and the incidents and circumstances connected with the delivery of the draft to the bank and procuring the money thereon. The prisoner does not state that he had personal knowledge as to who the guilty party was, or that he had personal knowledge of the doing of any of the acts necessarily involved in the consummation of the crime, and the admission is consistent with the idea that the statement was based upon knowledge and information communicated to him by others. The admission, such as it is, is accompanied by his denial that he did the act charged upon him, and the whole statement must be taken together in considering the same as evidence against the prisoner. I am utterly unable to see how this evidence tends to prove any fact going to show that the defendant had any agency in committing the forgery.

All the evidence presented by the people, aside from that given by the-accomplice, is consistent with the defendant’s innocence. The only particular in which the accomplice is corroborated is in the proof showing that a crime has been committed, but the statute declares that the proof of the commission of the crime is not sufficient corroboration of the accomplice to support a conviction on his evidence.

I am of the opinion that the judgment should be reversed and a new trial granted.

Smith, Ch. J., and Bradley and Haight, JJ., concur.

Judgment reversed, new trial granted and proceedings remitted to the court of sessions of Monroe county.


author: Haight, J.

text:
    Elmer Murphy, Resp’t, v. George H. Kron et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Criminal law—Arrest in night time, when authorized—Code Grim. Pro, § 170.
    This action was brought to recover damages for an alleged assault and battery and false imprisonment. A warrant was issued by a police justice commanding the apprehension of this plaintiff on the charge of larceny, to wit: the stealing of a dog of the value of ten dollars. The warrant was handed to one of the defendants, who took with him the other, at about three o’clock in the morning, and went to the plaintiff’s residence, and, after rapping, gained admission, entered and arrested the plaintiff There was no authority to arrest in the night-time endorsed upon the warrant. Code Grim. Pro., § 170, provides■ that if the crime charged be a misdemeanor, an arrest cannot be made at night unless by direction of the magistrate endorsed upon the warrant. Held, that the defendants were not justified in making the arrest at the time they did, and that the court properly charged that there was a false imprisonment as soon as the defendants took the plaintiff into custody.
    2. Pleading—Party is bound by admission in.

      Held, that a party is bound by his pleadings, and that the defendants having admitted in their answer the fact that they made the arrest were both bound thereby.
    3. Jury—When a question is properly submitted to.
    The evidence upon the question of the commission of assault and battery being conflicting, that question was properly submitted to the jury.
    4. Arrest—What cannot be shown in justification.

      Held, that the arrest having been made solely upen a ground set forth in the warrant, another cause sufficient to justify the plaintiff’s apprehension could not be offered in justification in this action.
    Appeal from a judgment entered upon a verdipt of the Monroe county court, and from an order denying motion for new trial.

      P. Chamberlain, Jr., for resp’t; John H. Keef, for app’lts.
   Haight, J.

This action was brought to recover damages for an alleged assault and battery and false imprisonment. The defendants were police officers of the city of Rochester. On the third day of December, 1885, a warrant was issued by the police justice of that city commanding the apprehension of the plaintiff on the charge of larceny, to wit: the stealing of a dog of the value of ten dollars, the property of John Heman. The warrant was handed to the defendant Kron, who took the defendant Bletzer with him, and about three o’clock in the morning of the fourth of December, went to the plaintiff’s residence, on Averill avenue, in the city of Rochester, and rapped on the outer door of the house. After some time the door was opened and the defendants entered, arrested the plaintiff and took him to the police station. No authority to arrest in the night time was endorsed upon the warrant. The plaintiff testified that both of the defendants put their hands upon him to get him out of the house and through the gate. This testimony was, however, controverted.

Section 170 of the Code of Criminal Procedure provides that: “If the crime charged be a felony, the arrest may be made on any day and at any time of the day or during any night. If it be a misdemeanor, the arrest can not be made on Sunday or at night unless by direction of the magistrate endorsed upon the warrant ” It follows that the defendants were not justified in making the arrest at the time that they did, and that the court properly charged that there was a false imprisonment as soon as the defendants took the plaintiff into custody.

It is contended that the complaint should have been dismissed as against the defendant Bletzer, on the ground that there is no evidence on which the jury could find a verdict against him, and that the court erred in refusing such motion. If, however, the testimony of the plaintiff is to believed, Bletzer was present in the house aiding and assisting the defendant Kron in making the arrest, even to the extent of putting his hands upon the plaintiff and holding him by the shoulder whilst walking down the street as far as the bridge.

But again, he admitted in his answer that he made the arrest. The defendants united in their answer, and as to the complaint for false imprisonment, they denied each and every allegation, “except as hereinafter expressly and specifically admitted or alleged.” They then proceeded to allege that the warrant was issued by the police justice and delivered to the defendants. That the defendants thereupon proceeded to the house of tho plaintiff, in the city of Rochester, and found the outer door of the house locked; that the defendants rapped upon the door; that the defendants informed the plaintiff that they were police officers and had a warrant for his arrest. Again, the defendants further allege, that they thereupon arrested the plaintiff and took him to the police office. It is a familiar rule that a party is bound by his pleading, and under this answer the defendant Bletzer not only admits, but alleges that the arrest was made by him.

It is contended that the court erred in refusing to dismiss the complaint as to the allegation of an assault and battery. As we have already stated, the evidence upon this branch of the case was conflicting, and it consequently became a question for the jury under proper instructions.

The court was also asked to instruct the jury that it may find against one defendant and in favor of the other if the evidence warrants it. This was declined and exception taken. This request would have been proper had it not been for the joint answer of the defendants in which they both admit and allege that the arrest was made by them. In view of the answer the request was properly denied.

It also appeared in the evidence that after the defendants had rapped upon the door of the plaintiff’s house some conversation took place between the plaintiff and the defendants in which they demanded admittance, stating that they were officers; that thereupon the plaintiff fired off a revolver in the house. The defendants requested the court" to charge that if the plaintiff aimed or discharged the pistol at or toward any human being, that that constituted a. crime, and for that the defendants were justified'in arresting him, and also that if the plaintiff wilfully discharged any kind of a firearm in any place where any person was put in danger thereby, even though no injury did ensue to any person, if it was committed in the presence of the defendants they were justified in arresting him. These requests were refused and exception taken. Had the deféndants arrested the plaintiff for firing off the pistol it is possible that the defendants would have been entitled to this charge; but it appears that after they entered the house they arrested the plaintiff upon the warrant. It. further appears that after they had taken him to the station house the warrant was returned endorsed thereon that he had been arrested “By virtue of the within warrant,” and that no complaint was made against him of any other crime. We are consequently of the opinion that the requests were properly denied.

Upon the trial it appeared that the plaintiff was discharged by the magistrate and was again subsequently arrested upon another warrant issued upon the complaint of Mr. Heman for the same offense. Upon the cross-examination the plaintiff was asked “if he paid Heman anything to settle the matter of the stealing of the dog.”This was objected to and an exception taken. If he was under arrest and had settled the matter, it is claimed that it would amount to an admission that he was guilty of some offense, and the evidence would consequently have been proper as bearing upon the credibility. This, however, would not amount to a defense, for under the conceded facts in the case the arrest was made in the night time by virtue of a warrant that did not authorize an arrest at that time. The evidence consequently would not change the result, and we are of the opinion that the error, if any, may be disregarded.

The judgment and order should be affirmed.

Smith, P. J., and Bradley, J., concur.


text:
    John Boyer, App’lt, v. Henry S. Marshall, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Contribution—When granted.
    The doctrine of contribution rests on the principle that where parties stand equal in right and duty in their relation to the subject of the bur-then and to each other, the laws requires equality which is equity, and that each shall bear his proportion of it. And when one so situated has been required to, and has performed or paid more than his share of the egal duty or obligation, he may have relief against the other, either in an action at law or in equity.
    2. Same—Surety against co-surety—Need not show insolvency of PRINCIPAL.
    A surety can maintain an action for contribution against his co-surety without making it appear that the principal is insolvent, or that he has been unable to collect of him. This is especially so in actions at law.
    3. Same—What a defense in action against co-surety.
    In such a case, the fact that the plaintiff is indebted to the principal debtor in a sum of sufficient amount to pay the debt for which the parties, are sureties, is not a defense for the co-surety. But indemnity furnished by the principal to one surety, is held for the benefit of all the sureties, and the relinquishment of it by him without their consent is a defense in an action by him against his co-sureties for contribution.
    4. Committee of a lunatic—Duty to pay debts of lunatic.
    It is the duty of the committee of a lunatic to account for the estate-which came into his hands as committee, and if sufficient to pay with it the debts of his ward. He is under no personal obligation or liability as. committee to pay the debts of his ward or to give' his notes for their payment.
    Appeal from judgment entered upon report of a referee, dismissing the complaint.

      H. A. Maynard, for app’lt; E. C. Aiken, for resp’t.
   Bradley, J.

The action is brought to recover, by way of contribution, portions of sums of money alleged to have been paid by the plaintiff on account of notes alleged to have been made by him and the defendant, upon which their liability assumed was equal in degree and to which their relation as between themselves was the same. The-defendant and his two brothers, Theron and George 0. Marshall, were the owners of a farm, which came to them by descent on the death of their father, John Marshall (which occured in 1872), subject to a mortgage which he in his lifetime had given to one Tifft. In May, 1874, the plaintiff was appointed committee of the person and estate of George 0. Marshall, and qualified, and entered upon the performance of his duties as such; and the same year he, with the assent of the defendant and his brother Theron, rented the farm to one Starks, to work it on shares, who so worked it four years. The referee has found that on April 1, 1875, the plaintiff and defendant on payment of that amount of interest upon the Tifft mortgage, made to him their promissory note, by which they jointly and severally promised to pay him $161.21 one day after its date, upon which the plaintiff paid in April, 1877, $22.50, and in April, 1880, $33.43; that on May 1, 1877, the plaintiff and defendant made another promissory note by which they promised to one Maynard $150, with interest, which was afterwards transferred to Tifft, and upon which the defendant paid $30.25 in April, 1880, and $60.50 in June, 1880; that in April, 1881, Tifft recovered a judgment against the makers of those two notes for the balance remaining unpaid upon them, amounting to $266.17 and $18.72 costs, which was after-wards paid by the plaintiff; that the note to Maynard was given for professional services as a lawyer, performed by him in the defense of an action brought against George 0. Marshall, in which the plaintiff, as such committee, was made defendant by supplemental complaint, and Maynard acted as his attorney; that in March, 1878, the plaintiff and defendant made their other promissory note, by which they jointly and severally promised to pay one Hawkins $100; that this note was given in satisfaction of a debt due from George 0. Marshall; that in 1882 judgment was recovered on such note against the makers for $131.43, and $22.31 costs, which the plaintiff was compelled to and did pay. These constitute the liabilities discharged and the sums paid, for which the plaintiff seeks to obtain contribution from the defendant.

The referee determined that it was the duty of the plaintiff to pay the note to Tifft from the proceeds of the farm, and that as the plaintiff was committee of the person and estate of George 0. Marshall, he, as between himself and defendant, must be deemed the principal and the latter surety, on the notes to Maynard and Hawkins.

The doctrine of contribution rests on the principle that where parties stand equal in right and duty in their relation to the subject of the burthen, and to each other, the law requires equality, which is equity, and that each shall bear his proportion of it. And when one so situated has been required to, and has performed or paid more than his share of the legal duty or obligation, he may have relief against the other, either in an action at law, or in equity. Campbell v. Mesier, 4 Johns Ch., 334; Aspinwall v. Sacchi, 57 N. Y., 331, 335; Wells v. Miller, 66 id., 255.

The referee has not found, and it is not alleged, nor does it appear by the evidence, that the defendant signed these notes at the request of the plaintiff. And, therefore, the question whether the defendant is, or is not, hable to contribute, depends upon their relation as between themselves to the liabilities assumed at the time the notes were made or upon circumstances arising since, affecting such relation. It is difficult to see that the fact that the plaintiff received the proceeds of the farm constitutes a defense in respect to the Tifft note, given for interest upon the mortgage. The plaintiff had assumed no duty to pay the interest on the mortgage. He had no relation to the farm which required it. As committee, he represented the interest of George, who was a tenant in common with his two brothers. And so far as appears here, he was required to account to the latter for two-thirds of the proceeds of the farm, which, during the four years referred to, came to his hands.

It does not seems important in this action, that he may have paid the note given for the interest,and charged the two brother with two-thirds of the amount so paid. He was not required nor did he undertake to do so.

In respect to the note made to Maynard, the parties made it on account of the expense of the defense of an action commenced against George, into which the plaintiff was brought as committee. If he became personally liable to Maynard for professional services for the defense "of the action, and the note was made on account of such liability, it may be seen that the relation between him and the defendant on that note was that of principal and surety. Otherwise it might present a question depending upon the circumstances under which the note was made. And if it had priority of charge upon the estate of the lunatic, and the plaintiff had the means by way of indemnity and with which to pay it, that fact might impose upon him the duty to discharge it in that manner, and thus relieve the defendant. The fact, as found, that the defendant paid ninety dollars on that note is not entirely consistent with his understanding that the situation was such.

The fact that the note to Hawkins was to pay a debt which George owed, did not of itself give to the defendant the relation of surety as between him and the plaintiff. The note was made for the benefit of George, and if his estate was sufficient the debt should be paid from it.

But this liability assumed, it seems, discharged the debt, and the makers of the note took their place with other creditors (if any) of George. And it does not follow as a matter of course that they were entitled to payment from the estate of the amount of the note, or that the plaintiff as committee, had the means in his hands with which to pay it. The situation and condition of the estate may require that an accounting be had to ascertain whether there is any, and what amount applicable to the debts of the lunatic.

The makers of the note were in practical effect sureties for him, or in behalf of his estate. The proposition that a surety can not maintain an action for contribution against his co-security without mating it appear that the principal is insolvent, or that he has been unable to collect of him, although the rule is such in some of the states, is against the weight of authority, and especially so in actions at law, and has not been adopted in this state. Roberts v. Adams, 6 Porter, 361; S. C., 31 Am. Dec., 694; Odlin v. Greenleaf, 3 N. H., 270; Chaffee v. Jones, 19 Pick., 260; Morgan v. Smith, 70 N. Y., 537; Johnson v. Harvey, 84 id., 363.

¡Nor is the fact in such case any defense for the co-surety, that the plaintiff is indebted to the principal debtor in a sum of sufficient amount to pay the debt for which the parties are sureties. Davis v. Toulmin, 77 N Y., 280.

But indemnity furnished by the principal to one surety is held for the Benefit of all the sureties. And the relinquishment of it by him without their consent is a defense in an action by him against his co-sureties for contribution. Taylor v. Morrison, 26 Ala., N. S., 728; S. C., 62 Am. Dec., 747; Ramsey v. Lewis, 30 Barb., 408; Bachelder v.Fiske, 17 Mass., 464. It maybe seen upon the findings of the referee, that the defendant was not liable to contribute to the plaintiff for money paid on the Maynard note, by reason of the personal liability of the defendant to the attorney for his services. Austin v. Munro, 47 N. Y., 360.

But it does not appear that the same rule is applicable to the other two notes. There was no personal liability of the plaintiff as committee to pay the debts for which those two notes were given, nor was it any part of his duty as such to give his notes for their payment.

Elis duty was to account for the estate which came to his hands as committee, and if sufficient, to pay with it the debts against his ward.

For aught that appears, the same reason that induced him to make the notes, led the defendant, as brother of the lunatic, to join in them.

They both may have believed that his estate would enable the committee to discharge the liability thus incurred.

The question here is, whether in assuming the liability upon the notes their relations as between themselves to the debt thus assumed were equal. . They evidently were, unless the plaintiff had in his hands the means which it was his duty to apply to their extinguishment. The latter fact does not appear.

It may be proper to stay the trial of this action until an accounting can be had and the situation made to appear, from which, if it permits, the defendant may have relief against the claim made by the plaintiff. O’Blenis v. Haring, 57 N. Y., 649.

But upon the case as presented by the record, the judgment must be reversed and a new trial granted, costs to abide the event.

Smith, P. J., and Haight, J., concur.


text:
    The Rochester, Hornellsville and Lackawanna R. R. Co., App’lt, v. The New York, Lake Erie and Western R. R. Co. et al., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1887.)

    1. Railroads—General railroad act—Rights of company complying WITH CONDITIONS OF ARE VESTED AND EXCLUSIVE.
    This plaintiff was organized for the purpose of building and operating a railroad, and surveyed and located its route, and upon the same day made and filed a map of the same, duly certified by the proper officers of the company, as required by the general railway act, and caused the proper notices to be served upon the land-owners over whose lands the road was located, and confirmed the location as required by said act. The intention of the plaintiff was to complete its road and put it in operation as soon as practicable. He d, that the plaintiff had acquired a vested and exclusive right to build, construct and operate a railroad on the line adopted by it, subject to the right of other railroad companies to cross its route and lands' in the way and manner and for the purposes provided by law.
    3. Same—Rights are exclusive—Another road cannot be constructed OR OPERATED OVER SAME ROUTE.

      Held, that, although not so expressly declared by the statute, the privilege of the plaintiff was an exclusive one, and that another road could not be constructed and operated on the same location.
    3. Injunction—Will be granted to protect party from interference WITH STATUTORY RIGHTS.
    . It is a general rule that an injunction will be granted, securing to a person or corporation the enjoyment of a statutory privilege, of which the complaining party is in actual possession, unless the right is doubtful.
    4. Same—Will be granted to protect rights gained under general RAILROAD ACT.

      Held, that an injunction would be granted pendente lite restraining the defendant from constructing or operating a road over any portion of the plaintiff’s route.
    Appeal from an order of the Monroe special term dissolving an injunction restraining the defendant from placing obstructions upon the line of the plaintiff’s road as located.

      Frank S. Smith, for app’lt; James H. Smith, for resp’t.
   Barker, J.

The special term, in dissolving the injunction, held that, as the plaintiff had not acquired the right of way for the purpose of constructing its road over the locus in quo by purchase from the owner, or by having the same condemned by proceedings instituted for that purpose under the statute, it had no right, estate or interest on on which a court of equity can take cognizance, and by injunction restrain the defendant corporation from doing the act complained of. This ruling goes to the merits of the plaintiff’s case as set forth in the affidavits. The court must also, in reviewing the order appealed from, consider the legal proposition which lies at the foundation of the controversy.

This action is on the equity side of the court, to restrain the defendant corporation from laying down its tracks upon or across the route surveyed, located and adopted by the plaintiff upon which to construct its road between the termini mentioned in its articles of incorporation. The preliminary injunction, which the order appealed from vacated, was in terms co-extensive with the prayer for relief demanded in the complaint. The question presented is a very important one, which has not been much considered in the courts of this state, and involves the inquiry as to the nature and character of the franchises which are conferred upon railroad corporations organized under the general railroad act, and to the extent which courts of equity have jurisdiction to control the action of existing companies, when they purposely and designedly, and in bad faith, attempt to hinder and delay the construction of another road, which, when completed, becomes a competing line.

The plaintiff corporation was organized June 9, 1886, for the purpose of building and constructing a railroad commencing in the village of Canisteo, in the county of Steuben, and terminating at a point in the line of the Lackawana and Pittsburg R. R. Co., in the town of Burns, in the county of Alleghany, via. the village of Hornellsville, which is also in the said county of Steuben.

The plaintiff surveyed and located its route, made and filed a map of the same, duly certified by the proper officers of the company as required by the twenty-second section of the said act; it then caused the proper notices to be served on the land owners over whose lands the road was located, and the line so adopted has never been changed in any proceeding instituted for that purpose; and before this action was commenced the location was confirmed by virtue of the other provisions of the said section. In the village of Hornellsville the plaintiff’s route is for some distance along and beside the lands of the, defendant corporation, upon which is located its tracks, and the locus in quo is upon lands of which the defendant Babcock is the owner in fee. The plaintiff has acquired the right of way for the greater portion of its entire line, and is in good faith and with due diligence proceeding to complete and put its road in operation. Adjacent to Babcock’s land on the side opposite from the defendant’s tracks there is in operation a brick-yard, the proprietors of which are accustomed to ship a portion of the bricks made by them on the defendant’s railroad at. the station in Hornellsville. After the defendant was served with notice of the plaintiff's proposed route it took a lease from Babcock for the period of three years of a piece of land between its road and the brick-yard; the plaintiff’s road bed, when constructed, will be on the same grade as the defendant’s tracks, and the road bed to a point abreast Babcock’s land.

On or about the 20th of August, the defendant constructed a switch from it tracks over Babcock’s premises and across the plaintiff’s line. During the night of the same day, the plaintiff caused the track, so far as it was laid upon its line, to be torn up and removed, and laid down a section of track about ninety feet in length and placed rails thereon, which were not connected with any of the tracks then laid upon its road bed; and procured and served an injunction restraining the defendant from interfering with or placing obstructions upon its road bed. It was disregarded, and on the same day, the defendant’s agents and servants tore up and removed the section of track laid by the plaintiff.

The plaintiff had not purchased the right of way over Babcock’s land, nor had it instituted any proceedings under the statute for condemning the same. This action was commenced August 21, 1886. It is not a question in dispute, but what it is the intention of the plaintiff in good faith and as soon as it is practicable to complete its road and put it in operation.

We are also of the opinion, that it is fairly established by the facts disclosed in the affidavits and the history of the proceedings, and the declarations of the defendants’ agents and managers that its action in taking the lease from Babcock in constructing the switch was maliciously and in bad faith, and for the purpose of hindering, annoying and delaying the plaintiff in the completion of its road. Of course this expression of our opinion as to the defendants’ motives is upon the case as now presented and will be no guide for the court when the case is tried upon the merits, and the facts must then be determined upon the evidence presented.

If we are correct in our conclusions as to the facts which we considered fairly established by the affidavits, we think the plaintiff made a case for the allowance of the preliminary injunction and that the same should be continued pendente lite.

Under the general railroad act, when a corporation has been organized in compliance with the conditions of the statute, and has made a map and profile of the route intended to be adopted by the company, duly certified and filed as required by the twenty-second section, it has acquired a vested and exclusive right to build, construct and •operate a railroad on the line which it has adopted, subject to the right of other railroad companies to cross its route and lands in the way and manner and for the purposes provided by law.

The general termini and route must be stated in the articles of association, but the location in other respects, including the precise termini and the intermediate points, the legislature has left to the election of the company, after it has surveyed and ascertained which is the most feasible line; and the exercise of its discretion when it acts in good faith and within the limits of the powers conferred upon it, can be reviewed by the courts only on the application of an aggrieved person, over whose lands the road is located, as provided in the said section 22.

In this case Babcock petitioned for a change of the route, but his application was defeated. The plaintiff has a franchise conferred upon it by the legislature to construct its road over the established line.

The first and important inquiry is, has the defendant invaded this franchise secured to the plaintiff in such a manner and to such an extent as to confer upon a court of equity jurisdiction of the subject matter, and justify the granting of a preliminary injunction restraining the defendant from carrying into execution during the pendency of the suit its declared purpose to hinder and delay the plaintiff in the construction of its road and the enjoyment of its franchises. The general rule is, as established by the decisions of courts of equity jurisdiction, that an injunction will be granted, securing to the person or corporation the enjoyment of a statutory privilege of which the complaining party is in the actual possession unless the right is doubtful; if the right plainly exists and has been invaded, the proper and specific remedy, that which will prevent a continuance of the invasion, is by injunction, and this can be decreed only in equity.

We think the plaintiff has made a case against the defendant corporation which comes within this rale; the facts are not left in doubt, nor are they complicated. The plaintiff's rights depend upon the construction of the statute under which it was organized that the plaintiff’s franchise is exclusive so far as the right to construct a railroad on the fine which it has adopted must be conceded as another road, cannot be constructed and operated on the same location, although the statute has not declared in express terms that the privilege is an exclusive one, it would lead to endless contention and disastrous disturbance to hold otherwise, and give the statute a different construction. In Osborn v. United States Bank (9 Wheat., 740, 841), the court, in speaking of the powers of a court of equity in this class of cases, remarked, “The inference of the court in this class of cases has most frequently been to restrain a person from violating an exclusive privilege by participating in it. But if, instead of a continued participation of the privilege, the attempt be to disable a party from using it, is not the reason for the interference of the court rather strengthened than weakened? ”

In Croton Turnpike Co. v. Ryder (1 Johns. Ch., 611), the chancellor, after stating that the defendant’s action was a material and mischievous disturbance of the plaintiff’s franchise, granted to it by the legislature for public purposes, declared the jurisdiction of the court over the case to be complete, and added: “It is settled that an injunction is the proper remedy to secure to a party the enjoyment of a statue privilege, of which he is in the actual possession, and when his legal title is not put in doubt. The English books are full of cases arising under this head of equity jurisdiction. * * * The equity jurisdiction in such a case is extremely benign and salutary. Without it, the party would be exposed to constant and ruinous litigation, as well as to have his right excessively impaired by frauds and evasion.”

Most of the writers on the subject of equity jurisprudence assert jurisdiction in this class of cases. Story Eq., § 927; Livingston v. Van Ingen, 9 Johns. R., 507; Tyack v. Brumley, 1 Barb. Ch. R., 519; Boston and Lowell R. R. Co. v. Salem and Lowell R. R. Co., 2 Gray, 1; High on Injunction, chap. 15, § 897; Plank Road v.Douglass, 12 Barb., 553; Livingston v. Ogden, 4 Johns. Ch., 48.

A franchise is a branch of the sovereign power of the state subsisting in a person or a corporation by a grant from the state. So long as the privilege bestowed on the grantee continues to exist all other persons and corporporations are under the most solemn obligation, as a duty which they owe the public, to observe the franchise and forbear from interfering with its enjoyment. All franchises are supposed to be for the public good.

If the state was engaged in constructing a railroad on the route in question, in pursuance of a legislative enactment, no one would doubt but that the state could invoke the protection of the courts by restraining all persons from interfering with its purpose. We think the plaintiff, in its charter and the provisions of the statute authorizing its creation, may invoke the same degree of protection from this court. In some of the other states the question now before us has been considered and passed upon, and the decisions •of these courts be cited in of the which we entertained. In T. C. and P. R. R. Co. v. W. & V. R. R. Co. (12 Phil. R., 642), application was made by the plaintiff for a preliminary injunction restraining the defendant from constructing its road upon and along the line which the plaintiff had previously adopted or from interfering with such located line.

The injunction was granted, the court being of the opinion that the plaintiff’s line was first located in the manner required by the statute of that "state and that the defendant’s action was an invasion and interference with the plaintiff’s-franchise. The remarks of the court as to the plaintiff’s privileges are so pertinent to the case before us that we-quote them in this connection: “Clearly, when a railroad company has ascertained and located where its rqad shall be, it is not competent for another company to step in and take its route, agreeing with the owners and occupy the land. The selection and location of the route secures the title of the first company to that route which it may carry to completion "without disturbance by another.”

In the case of Contracosta R. R. Co. v. Moss (23 Cal., 323), the same question was considered and the court there remarked: “It is clear that one railroad cannot locate its line along or upon the previously located line of another company, nor can it condemn or appropriate land along or upon the previously located fine of another railroad company, except when it may be necessary for one railroad company to cross another. Lands, located by a company who are proceeding in good faith and with reasonable diligence in the construction of their road, cannot be taken from them under these proceedings and appropriated by another company for railroad purposes. By its priority of location and appropriation the first company locating its fine of road and the land necessary for its construction as provided by law, cannot be divested by another company who seek to appropriate the land to the same use.”

If the defendant is permitted to carry out its threats to construct and to keep down its tracks over the plaintiff’s route, it is obvious that it will be a serious invasion of the plaintiff’s franchise and will tend to interfere with the construction of its road and embarass it in acquiring the right of way over Babcock’s land.

It is equally clear that the plaintiff is in the possession of a franchise granted to it by the state, and that its right to* the enjoyment of the same is clear and beyond all doubt. It possesses the franchise of power under the law to acquire the right of way by purchase or condemnation, and the defendant’s past action and threatened action must necessarily tend to embarass the plaintiff in securing the right, to construct and operate its road over the land owned by Babcock. The court is warranted in reaching the conclusion, that as matter of fact, Babcock and the defendant have conspired to hinder and delay the operations of the plaintiff. The purpose of the general railroad act is to favor and facilitate the construction of railroads for public convenience and use, and an existing railroad corporation whose franchises and privileges are based upon the same statute, should not be tolerated in the least in any action, movement or purpose to defeat or delay the construction of other railroads. Every attempt to do so should be promptly met and condemned, and the proper process in an appropriate case, should be unhesitatingly granted for the protection of an aggrieved party. As to the defendant Babcock, the injunction was properly dissolved, as he was owner in fee of the land, and until the plaintiff acquired the right by purchase or otherwise to construct its railroad upon his land, he rightfully remained in possession of the same, and could use and occupy, or sell or lease the same ■without any restraint arising from the location of the road over his premises.

The case of the Corporation of New York v. Mapes (6 John. Ch. R., 46), cited in the opinion of the learned judge who presided at the special term, is in point in sustaining the dissolution of the injunction as to Babcock, but is not as we can see an authority vindicating the action of the defendant corporation.

So much of the order as vacated the injunction against the New York, Lake Erie and Western Railroad Company is reversed, with ten dollars costs against and disbursements to be paid by that company to the plaintiffs, and the rest of the order is affirmed, with ten dollars costs and disbursements to be paid by the appellant to the respondent Babcock.

All concur.


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    Ida C. L. Purdy, Resp’t, v Joseph W. Weight et al., Appl’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Wills—Devise—What does hot vest title to land in executors.
    By his will a testator gave his executors full power to sell and convey certain of his real estate, and bequeathed the proceeds in part to his son, in part to his executors in trust for his daughters, directing them to invest it in real property for the sole use and benefit of each daughter during her natural life, with remainder in fee to the heirs-at-law of her body. And as to the share of one of the daughters, it was provided that in case she died without issue before attaining her majority, the share bequeathed to her should go to his surviving children. The executors never executed the power of sale given them. The children of the testator other than the one last designated, conveyed their property; she died without issue after reaching her majority. Held, that the executors took no title to the land.

      2, Same — What does not constitute a trust under 1 Revised Statutes, 728, § 55.

      Held, That there was no trust created within the terms of 1 Revised Statutes, 728, § 55.
    8. Same—What language sufficient to express a trust.

      Held, That though it was not necessary to express in the terms of the instrument the provisions of the statute, sufficient must appear to permit a construction to embrace them.
    4. Same—Devise of lands subject to power—1 Rev. St., 729, § 56.

      Held, That the lands descended to the heirs of the testator subject to the execution of a power. 1 Rev. St., 729, § 56.
    5. Same—Equitable conversion—Re-conversion.
    A power and direction given by a will to sell lands and distribute the proceeds, operates ordinarily as a conversion of the realty into p( rsonal estate, but that may not be so where the direction is to invest the proceeds in real estate, then the proceeds have the character of the property in which tlie investment is directed to be made.
    6. Acquiescence—What will be interpreted as.
    In this case the executors were vested with the power of sale during a period of more than twenty-five years; and most of the parties interested in the lands subject to the will had taken and conveyed their interest, and title therein, and so far as they could, had elected to dispense with the execution of the power of sale. Held, That the lapse of time would seem to permit the inference of acquiescence on the part of the executors in such appropriation and disposition of the property by the beneficiaries.
    7. Partition—Action for—When maintainable.
    Held. That the circumstances were such as to enable an heir of one of the parties designated in the will as a devisee to maintain an action for a partition of the premises.
    Appeal from judgment entered on decision of the court at Yates special term.

      Struble & Stewart, for app’lts, Joseph Wright and wife; Wm. T. Morris, for app’lts, James Wright, Philetus Wright and their wives; J. F. Parkhurst, for resp’t.
   Bradley, J.

This action is brought for the partition of certain lands, of which it is alleged that the plaintiff is seized of one undivided one-hundred and sixty-eighth part as tenant in common with the defendants.

And the controversy to some extent arises upon the construction and effect of the provisions of the will of David Secor, made in 1852, and probated in 1860, when letters testamentary were issued to the executors nominated by him. By the seventh and eighth clauses of the will he gave the executors full power to sell and convey his real estate situate in the town of Benton, Yates county, and directed them to sell it “with all convenient speed,” and bequeathed the proceeds of the real estate to his children named,as follows: three-eighths to his son Minor, one-eighth to his son Philetus, and bequeathed to the executors in trust for each of the four daughters, Emeline, Adaline, Almira and Cordelia, one-eighth, and directed the executors to invest it in real estate for the sole use and benefit of each daughter during her natural life, with remainder in fee to the heirs at law of her body. And in case of the death of Cordelia before she arrived at the age of twenty-one years without issue, the share bequeathed to her should go to his surviving children. The executors never executed the power of sale given them by the will.

The testator left surviving him eight children, and those of them other than Cornelia conveyed their interest in the lands. And such conveyances were made within the period from 1861 to 1882 inclusive.

The daughter Cordelia died 1870, over the age of twenty-one years, without issue. Her heirs-at-law were her brothers and sisters, and the children of a deceased brother and sister, one of whom is the plaintiff, who inherited one-twenty-first part of the real property of which she died seized.

And as it is alleged that Cordelia took by descent from her father title to one-eighth part of the premises in question, that allegation, if supported, would make the plaintiff’s share in them one undivided one hundred and sixty-eighth part.

It is contended on the part of the appellants that by the provisions of the will a trust was created which vested the executors with title to these lands.

We think they took no title. The sale directed was not for the benefit of legatees within the meaning of the statute, and there was no trust created to receive rents and profits of the lands and apply them, etc. 1 R. S., 728, § 55.

The power to receive the rents and profits for some of the purposes mentioned in the statutes is requisite to constitute a trust within the provision last mentioned. Leggett v. Perkins, 2 N. Y., 297.

It is not necessary to express in the terms Of the instrument the provisions of the statute, but sufficient must appear to permit a construction to embrace them. In Morse v. Morse (85 N. Y., 53), the element of power for the receipt and application of the rents and profits of the land in question, was in the provisions of the will, and for that reason a trust was supported. And in the same remark is applicable to Vernon v. Vernon (53 N. Y., 351).

In respect to the lands of the testator in the case at bar, the executors had only power of sale. And the lands descended to his heirs subject to the execution of the power. 1 R. S., 729, § 56. The power and direction given by a will to sell lands and distribute the proceeds, operates as a conversion of the realty into personal estate. Arnold v. Gilbert, 5 Barb., 190. But that may not be so when the direction is to invest the proceeds in real estate; then the proceeds have the character of the property in which the investment is directed to be made, when the direction and its purpose are valid. Lorillard v. Coster, 5 Paige, 172, 218. The beneficiaries may elect to take the land, and thus dispense with thé execution of the power. Prentice v. Janssen, 79 N. Y., 478.

The question arises whether an action for partition will be entertained under the circumstances of this case.

It might not ordinarily be permitted in behalf of a party who had the bare legal title, to a share in property which was subject to an operative power of sale, for the reason that no substantial benefit would result from such an action. That was the situation presented in McGregor v. McGregor (22 N. Y. Wk. Dig., 305), inasmuch as the alleged suspension of alienation was there held not to be illegal. But here the excutors were vested with the power of sale more than twenty-five years ago; and most of the parties interested have taken and conveyed their interests and title in the property, and so far as they could have elected to dispense with the execution of the power of sale. The lapse of time would seem to permit the inference of acquiescense on the part of the executors in such appropriation and disposition of the property by the beneficiaries. It seems that they have sought so far as they could, to make a distribution of the property, and apparently have substantially accomplished it, except as relates to a portion of the share of the daughter Cordelia. And thus have rendered the execution of the power of sale by the executors impracticable. Hetzel v. Barber, 69 N. Y., 1.

We think that the legal title to the alleged portion is in the plaintiff, and that the situation presented enables her to maintain the action. No other question requires consideration.

The judgment should be affirmed.

Smith, P. J., and Haight, J., concur


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    John T. Baxter v. The Brooklyn Life Ins. Co.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    1. Insurance—Life—Condition in policy—Effect of.
    This action was brought upon a policy of insurance made by the defendant upon the life of the plaintiff's husband, and payable to her within sixty days after the receipt of proofs of his death, subject to the condition of the payment of premiums at intervals fixed by the terms of the policy, and in event of the non-payment of any premium, the policy to be void. Seld, that in the absence of any statute provision to the contrary, the failure to make such payment of any premiums would be fatal to the recovery of the plaintiff.

      3. Same—Laws 1876. chap. 341, as amended by Laws 1877, chap. 331— Forfeiture of policy for non-payment of premium—Pleading.
    It is provided by Laws 1876, chap. 341, as amended by Laws 1877, chap. 331, that no life insurance company shall have power to declare forfeited any policy by reason of the non-payment of any premium until the expiration of thirty days after the service on the person whose life is insured of a notice thereby prescribed; and in case the payment is made within that time, the same shall he taken to he in full compliance with the requirements of the policy in that respect. Held, that a waiver or excuse for nonperformance of a condition precedent to a right of action upon a contract must he alleged to admit evidence of the fact.
    3. Same—Courts will take judicial notice of public statute.

      Held, that judicial notice would be taken of the public statute giving the protection against the right of forfeiture without notice.
    4. Same—Existing statute provisions form part of contract.

      Held, that the policy being made subject to the provisions of the statute, they became part of the contract at the time of its execution.

      5. Same—Performance—Pleading.

      Held, that an allegation of performance on the part of the insured was sufficient, and that it was not necessary to allege that the insured was not in default.
    6. Same—Right to forfeiture must be shown by insurer.

      Held, that the burden was upon the insurer to show that it had done what was required of it to put the insured in default.
    7. Same—Presumption adverse to.

      Held, that in the absence of proof on the subject, the presumption was that no notice had been served by the defendant upon the insured, and that at the time of his death the policy remained valid.
    Motion by defendant for new trial on exceptions taken at Cattaraugus circuit, and ordered heard at general term in the first instance.

      Charles E. Cary, for pl’ff; William A. Ford, for def’t.
   Bradley, J.

The action is upon a policy made by the defendant May 24, 1884, on the life of Joel J. Matteson, to the amount of $3,000, payable to Maria Matteson, his wife, within sixty days after the receipt of proofs of his death, subject to the condition that $20.97 be paid in advance on the delivery of the policy, and a like sum on the twenty-fourth day of August, November, February and May in every year during the continuance of the contract, and that the policy be void if any premium, or any part of a premium, be not paid when due. The insured died September 6, 1884, and the requisite proofs of death were furnished to the defendant more than sixty days before the commencement of this action. The alleged cause of action against the defendant upon the policy was assigned to the plaintiff. There is no evidence that the quarterly premium, which became due the 24th day of August, 1884, was paid. _ And that is the ground of the exceptions taken ■to the denial of the defendant’s motion for non-suit, and to the direction of a verdict for the plaintiff.

The complaint alleges payment of the quarter-yearly payments as required by the agreement with the defendant. And the answer denies payment of the instalment due August 24, 1884.

The failure to make such payment would be fatal to the plaintiff’s recovery, but for the statute, which provides that no life insurance company shall have power to declare forfeited any policy by reason of non-payment of any premium until the expiration of thirty days after the service on the person whose life is insured, of the prescribed notice, and in case the payment is made within that time, the same shall be taken to be in full compliance with the requirements of the policy in that respect. Laws of 1876, chap. 341, as amended by Laws of 1877, chap. 321. It is contended by the defendant’s counsel, that upon the allegations of the complaint the issue presented by the pleadings is whether or not the payment was in fact made, and that, the statute referred to is not available to the plaintiff, because he has not alleged in support of his action the failure of the defendant to serve the notice required by the statute to permit forfeiture of the policy for non-payment of the premium.

It is a rule of pleading that a waiver or excuse for nonperformance of a condition precedent to a right of action upon a contract must be alleged to admit evidence of the fact. Baldwin v. Munn, 2 Wend., 399; Crandall v. Clark, 7 Barb., 169; Oakley v. Morton, 11 N. Y., 25, 33. And the question is usually raised by objection to evidence offered to prove such waiver or excuse, while here no proof was required, as the protection against the right of forfeiture without notice was given hy a public statute, of which judicial notice would be taken. This case in that respect, therefore, differs from those where the parties have by agreement modified their original contract, or by some-arrangement the strict performance of its terms has been waived, or in some manner excused.

Then it becomes a fact to be established by evidence, and the reason is apparent that the defendant should be advised by the allegations of the complaint, of such excuse relied upon, that he may traverse the issue tendered and be prepared to meet it at the trial. The law declares the continued validity of the contract of insurance notwithstanding the-failure to pay a premium on the day specified in the policy, and until default arising from failure to pay within the-designated time after the statutory notice. The same reason therefore does not seem to exist for pleading the omission to pay on the day mentioned in the policy.

The failure of the defendant to serve the requisite notice to put the insured in default, as is applicable to a modification of a contract by the parties to it. There it is in some sense a new contract, and upon it the right of action rests. Here there is no modification of the contract of insurance,, and no waiver or excuse for the non-performance of any condition precedent to relief by action, produced by any agreement or act of the parties subsequently to the execution of the contract, but the policy was made subject to the provisions of the statute, which became part of the contract at the time of its execution. And in view of this statute the allegation of performance was within the meaning of the contract as made. The practical interpretation and effect of it is that the insured is not in default for nonpayment of a premium until the expiration of the time to-pay, after the notice is given. This is fairly within the import of the statutory provision that, “in case the payment demanded by such notice shall be made within the thirty days limited therefor, the same shall be taken to be in full compliance with the requirements of the policy in respect to the payment of said premium.”

The contention that the plaintiff was not entitled to the benefit of the statute upon the issue made by the pleadings is, therefore, not supported. The burden, we think, was with the defendant to show that it had done what was required of it to put the person whose fife was insured in default. This would seem to be so from the fact that the service of the notice is an affirmative act, to be performed by the company, and its existence is peculiarly within its knowledge. And in view of providing the means of preserving and producing such evidence for the benefit of the insurance companies, the statute provides that an affidavit of the service of the notice shall be presumptive evidence of the fact of service. Laws 1877, chap. 321, § 2. If these views are correct it follows that in the absence of proof on the subject the presumption is that no notice had been served by the defendant upon the insured, that at the time of his death the policy remained valid, and that the plaintiff was entitled to recover.

The motion for new trial should be denied, and judgment ordered for the plaintiff on the verdict.

Smith, P. J., and Haight, J., concur; Barker, J., not, voting.


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    Albert Gilbert, Jr., et al., v. Warren D. York, et al.

      (Supreme Court, General Term, Fifth Department,

      Filed April 19, 1887.)

    Pleading—What jurisdictional facts must be alleged in action in County Court.
    This action was brought in a county court. The complaint did not allege that the defendants were residents of the county. On a demurrer thereto; Held, that this was a jurisdictional fact which must be alleged in the complaint.
    Motion by plaintiff for re-argument or for leave tovtake ■appeal to the court of appeals.'

      John Woodward, for pl’ff; J. G. Record, for def’t.
   Bradley, J.

The action was brought in the county ■court. The complaint did not allege that the defendants were residents of the county; and for that reason the demurrer to the complaint was sustained, and the judgment for the defendant thereon affirmed by this court. The question was whether the fact of residence, which is requisite to the support of the action, is a necessary allegation of the complaint or is the subject of defense.

In Frees v. Ford (6 N. Y., 176), the court held that it must appear by the record. That action was commenced in 1848 in the county court of Columbia county and the declaration did not allege the residence of the defendants in the county. And to the defendants’ pleas to the declaration the plaintiff demurred. The court of appeals overruled the demurrer and directed judgment for the defendants because the jurisdictional fact of residence of the defendants in the county did not appear‘by the record. In other words the court overruled the plaintiffs’ demurrer "because the declaration was bad for such omission of allegation. Mathewson v. Weller, 3 Denio, 52; People v. Booth, 32 N. Y., 397. That case is authority in support of "the defendants’ contention, as the statute, so far as relates to this question, was then substantially the same as now.

The case of Frees v. Ford does not seem to have been ■overruled by the court in which it was decided, directly or by the declaration of a principle adversely to it, by any case to which our attention has been called. . That case was followed by the general term of the old fourth department, in Judge v. Hall (5. Lansing, 69), which was at least criticised by the court in Holbrook v. Baker (16 Hun, 176). The doctrine of the Frees case is in harmony with the rule of the courts of the United States. They are courts of limited jurisdiction, and when such jurisdiction depends upon the citizenship of different states of the parties, the fact requisite to give jurisdiction in that respect, it is held, must appear on the face of the record. Continental Ins. Co. v. Rhoads, 119 U. S., 237; Pieper v. Fordyce, id., 469. And as we construe Frees v. Ford and its effect there is no occasion to grant this motion for re-argument. But in view of the apparent conflict of the the Judge and Holbrook cases, this case presents a question which perhaps may with propriety be considered by the court of appeals if the plain-desires to take it there.

The motion for re-argument should be denied, and for leave to appeal to the court of appeals granted.

Smith, Ch. J., and Haight, J., concur.