author: LeaüNed, P. J.: Bocees, J.:

text:
    ROYAL STANTON, Respondent, v. PETER CRISPELL, Jr., Appellant.

      Conversion of notes — Evidence — Action for tort — evidence essential to recovery in —Damages.

    In an action brought by the payee of two promissory notes against the maker, to recover for an alleged conversion thereof by the latter, the defendant claimed that the plaintiff had surrendered the notes to him in pursuance of a settlement effected between them. Upon the trial the plaintiff was asked and allowed to answer, against the defendant’s exception and objection, the following question: “Did you ever assent to any such settlement as the doctor (the defendant) has stated here ?”

      Held, that the question should have been excluded; that it was for the jury, and not for the witness, to decide whether or not he had assented to the settlement.

      Held, further, that as this was an action of tort, and as it was therefore essential to show a wrongful act on the part of the defendant, no recovery could he had therein if the acts and deeds of the plaintiff justified the defendant in believing that he did assent to the settlement, and did surrender the notes in accordance therewith.
    As the plaintiff and defendant were the only parties to the notes, the amount of the recovery should be limited to what the plaintiff could have recovered, in an action brought upon the notes themselves,-taking into account any just set-offs or part payments. (P&r Bocees, J.)
    Appeal from a judgment of the County Court of Ulster county in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    This action is brought to recover for the alleged conversion of two notes, made by the defendant, payable to the order of the plaintiff, delivered to him and claimed to be his. There was no person liable on the notes other than the defendant. The recovery is for the full amount of the notes, $223.50.
    The parties had had some dealings together; the plaintiff went to the defendant’s house, and (according to his own testimony) the defendant looked over the account; spoke of a charge for medical services; paid the plaintiff twenty-three dollars and twenty cents; wanted to see the notes; the plaintiff handed them to him ; he shoved them aside; the plaintiff asked him if he was going to keep the notes; the defendant made no reply; the defendant asked the plaintiff if he wanted to take the figuring to look at it at his leisure; the plaintiff said he did not, and went away.
    The defendant, in contradiction, produced the paper on which the calculation' was made; this shows a charge against the plaintiff for board and washing, and a credit by services and the notes, making a balance of thirteen dollars. The defendant testifies that the plaintiff seemed disappointed, and asked if he could not make it a little more; that defendant agreed to make it twenty-five dollars, and paid the plaintiff all he had in his pockets, twenty-three dollars and twenty cents, and promised to hand him the balance; that plaintiff took the money and said nothing about the notes, but left them where defendant had placed them after making the calculation, and made no objection to the defendant’s retaining them.
    Ten days afterwards the plaintiff went to the defendant’s, tendered him the twenty-three dollars and twenty cents, and demanded the notes; the defendant informed him that they were burned up, and offered him the balance of one dollar and eighty cents which had been promised.
    It further appears by the evideuce of the defendant (which does not appear to be contradicted) that during the time for which the defendant charged for board, the plaintiff was working the defendant’s farm on shares, and was living at the defendant’s house.
    The County Court denied a motion for a new trial, and the defendant-appeals from such denial and from the judgment.

      M. Sehoonmaker, for the appellant.

      S. T. Hull, for the respondent.
   LeaüNed, P. J.:

Whatever we may think of the result of this action, our right to review is limited. There is no exception to any part of the charge. There was no motion for a nonsuit and no request to direct a verdict for the defendant; the defendant therefore cannot question the rule of damages, and we do not pass on this, nor on the right to recover that amount, if there was a conversion; nor can he raise any question as to the effect of the refusal to deliver notes which had been destroyed. (Salt Springs National Bank v. Wheeler, 48 N. Y., 492.) In like manner he is prevented from urging, as is claimed on his points, that there was no evidence to go to the jury of a wrongful conversion. (Barrett v. Third Avenue R. R. Co., 45 N. Y., 632.)

The only questions which seem to be open to us are, 1st. Whether, assuming the charge of the court to be correct, we can say that the verdict is such that the jury must have been improperly controlled by passion or prejudice. Now, the charge was that, if the notes were voluntarily surrendered by the plaintiff to the defendant, the action could not lie. That, on the contrary, if there was any trick or contrivance by which the notes were got from plaintiff’s possession, without his consent, and were then destroyed, it would be a conversion. No exception was made to this and no request to lay down any other or more definite rule. On looking at the evidence under this charge, and under the implied admission of the defendant that there was a question of fact as to the settlement, I am unable to say that the jury were improperly controlled by passion or prejudice. They saw the parties and heard their respective stories; and they are the tribunal for the decision of facts. 2d. The plaintiff, on his examination, was asked, Did you ever assent to any such settlement as the doctor (defendant) has stated here ? This was objected to by the defendant on the ground that assent is to be judged from what was said or done. The objection was overruled; the evidence admitted, and the defendant excepted. As the defendant’s counsel thus called attention specially to the principle, that the acts and sayings of the parties must prove assent or dissent, it would seem that the testimony which was admitted included the mental intention of the witness. This was not proper. It was for the jury to decide, from what the defendant said and did, whether he assented to the settlement, or, perhaps, in strict accuracy, whether his acts and deeds justified the defendant in believing that the plaintiff did assent to the settlement and did surrender the notes in accordance therewith. As this is an action of tort, it is necessary for a recovery to show a wrongful act of the defendant. That must depend on what he was justified in understanding from the plaintiff’s acts and sayings. These only were competent, and these the plaintiff had already stated.

Tet, such a general answer as was given to this question is one very likely to influence a jury, in such a case as this, and as this answer was improperly admitted the judgment must be reversed and a new trial granted; costs to abide the event.

Bocees, J.:

I concur in the above opinion entirely, and am the better satisfied with the result, as it seems the question of damages was entirely overlooked on the trial. The right of recovery, if sustained, was limited to the value of the notes; that is, in this case, to the amouut the plaintiff would have been entitled to recover on them, had he sued upon the notes themselves. If paid, or reduced in value by part payments or just set-off, these matters were proper subjects for consideration on the question of damages. Admitting that the notes had been improperly retained or converted by the defendant, the question then would be how much had the plaintiff been damaged by the alleged wrongful act.

Present — Leabnbd, P. J., Bookes and Boabdman, JJ.

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


source: Caselaw Access Project

author: Bocees, J.: LeaeNed, P. J.

license: Public Domain

text:
    THE TROY AND LANSINGBURGH RAILROAD COMPANY, Plaintiff, v. PATRICK KANE, Defendant.

      Ohm't&r of city of Troy — chap. 129 of 1872 — Assessment for local improvements — may he imposed upon raihroad track.

    Under the provisions oí the Troy charter, chap. 129 of 1872, authorizing an assessment of the expense of making certain local improvements, upon the property benefited, providing that such assessment shall be a lien upon the "real estate named and described in the report of the commissioners and authorizing the sale of the real estate so assessed, the expense of constructing a sewer in one of the streets of the said city may be assessed upon the track, sleepers and rails of a railroad company, which are laid in such street. (Learned, P. J., dissenting.)

    Application for judgment on the part of the defendant, upon a verdict directed to-be entered in his favor, subject to the opinion of the court at General Term.
    The chamberlain of the city of Troy issued his warrant to the defendant, a constable, directing the collection of an assessment made against the plaintiff for the constraction of a sewer in said city. Under such warrant the defendant levied upon a span of horses belonging to the plaintiff, whereupon the latter replevied the property. The defendant justified his action under the assessment proceedings and warrant.
    The assessment was made in pursuance of title 4 of chapter 129 of 1872. Section 16 directs that tbe expense of improvements ordered by the common council, except for the opening and widening of streets, shall “ be apportioned and charged upon the property and persons and corporations benefited thereby, by the comptroller, city engineer, and city superintendent, who, by virtue of their office, shall be the local assessors of said city, who shall mate a list of the said apportionment, stating the name of the person or corporation owning the property chargeable with the expense of said improvement, if the name of the person shall be known to the said assessors or either of them; if not known to them, then to owners unknown, a description of the property and the amount chargeable to it, which list, when the improvement shall cost a sum exceeding $100, shall be accompanied by a map or diagram of all the property intended to be benefited by such improvement, etc.” Section 17 provides that upon giving the notice required by the act, “ the persons and property chargeable with the said improvements shall be subject to the payment of the respective amounts named in said final report, and thereupon the said assessment shall be a lien upon the real estate named and described in said report.” Section 18 provides that, “ if any person or corporation shall neglect to make such payment * * * of any assessment or apportionment against the property named in any report of assessment * * * it shall be extended on a separate column in the city tax rolls, and the same shall be collected by the chamberlain and enforced in all respects, as provided by law for the collection of the city taxes. Section 13 of title 5 requires the chamberlain to publish on or before the first day of May in each year “ a list or statement of the real estate on which the city taxes and assessments remain unpaid, giving a true description of the lot or lots as described in the tax rolls, with such tax and assessment carried out in separate columns,” and providing for the sale of “ such real estate ” for the lowest term of years, at which any bidder will take the same and pay the amount due thereon.

      E. Gowen, for the plaintiff.

      B. A. Parmenter, for the defendant.
   Bocees, J.:

According to the evidence, and under the admissions made on the trial, the learned judge, before whom the case was tried, was right in sustaining the defense, in case the officers on whom devolved the duty of making the assessment, had jurisdiction or authority in law for their action in this case. It is insisted on the part of the plaintiff that the provisions of law under which the municipal authorities took action, and on which the defendant here relies for his justification, have no application to the plaintiff or its property. The validity of the law, when applied to a subject within its purview, is not questioned; that is, it is not disputed but that the municipal authorities have the right, under the provisions of the city charter, to make local improvements, as to construct sewers, and to charge the expense of their construction upon the property, persons and corporations benefited thereby. This authority is admitted, nor is it disputed that the plaintiff and its property are subject to general taxation. This was settled by the decision in The People ex rel. v. Cassidy (46 N. Y., 46). And it was settled also in the case cited, that the property of the railroad company was real property and taxable as such This case settles the point that the use of the rail for the support of the track, consisting of stringers, ties and rails affixed to the land, to the extent and as given by the company’s charter was an easement, an interest in land recognized in law as real property. Now, it was undoubtedly on real estate that the expenses incident to local improvements were to be assessed under the provisions of the city charter, for those expenses were to be borne, in fair constructipn of the various provisions of the city charter, by the property benefited thereby,” consequently personal property could not have been in contemplation. But the plaintiff’s property was real property. Now, if it could be benefited by the local improvement ordered by the common council, it was, within the purview of the law, assessable therefor, and the officers on whom devolved the duty of making the assessment had jurisdiction to include it, in making the apportionment to cover the expense. If does not lie with this court to say that the plaintiff’s property could not, by possibility, be benefited by the improvement. A sewer is useful in many ways, and may benefit the land through or along which it is conducted. It is useful as a conduit for impurities, hence beneficial in a sanitary point of view; and it may also be greatly beneficial for the ready discharge of surface water. To meet the objection of the want of jurisdiction in this case, it is sufficient that the plaintiff’s real property could be benefited by the improvement. Whether it was benefited by it, and to what extent, compared with the surrounding or adjacent property, were subjects of consideration devolving upon the officers designated by law to determine those questions.

Again, it is urged that the system of taxation or assessment for local improvements provided by the city charter, cannot be made practicable when applied to the plaintiff’s property; that the system contemplates a special designation of the property benefited, makes the assessment a lien thereon, and provides for a sale of the property to satisfy the lien. Why may not this part of the system be carried out in the way provided ? The line of road immediately and directly benefited by the improvement might be readily and plainly designated, and it might be sold. What the purchaser would obtain by the purchase is not the. question. The purpose of these provisions is to coerce payment of the assessment from the party who should pay it. It does not lie with such party to say that the assessment is invalid, because one of the modes provided by law for its enforcement will be unproductive in its results ; and, indeed, whether or not it will be unproductive depends on his own willingness or unwillingness to forego the use and enjoyment of the property, which would pass from him under the sale. But if this mode of enforcing payment.of the assessment be held applicable only to those cases where the “ lot or lots ” of land assessed may be particularly designated by metes and bounds, or by other definite description, then even, the assessment upon the plaintiff’s property would be subject to enforcement in the way provided by law, and adopted in this case. There is nothing in the city charter which limits the collection of the assessment to the property assessed. The assessment was laid according to law, and the chamberlain was authorized to issue his warrant for its collection. The property taken was liable to seizure and sale thereunder. Thus it seems that the defendant was justified in his action; and the court was right in directing a verdict for the defendant.

Judgment must be ordered for the defendant on the verdict.

BoardMAN, J., concurred.

LeaeNed, P. J.

(dissenting):

I understand that it is conceded for the purposes of this action that the property assessed consists of the sleepers, ties and rails, and whatever interest plaintiffs have under the laws of the State and the ordinances of Troy. No question was made on the argument, as to the failure to describe any property in the assessment list.

If the case of the People v. Cassidy (46 N. Y., 46) applies, then the defendant is entitled to judgment; that case holds that rights and property, similar to those of the plaintiff, are “lands” under the general tax laws of the State, and under the meaning therein given to that word.

Title 4, section 16, Troy charter (Laws 1872, chap. 129) says that the expenses shall be charged “ on the property benefited,” that there shall be a map or diagram of the property benefited; section 17, that the assessments “ shall be a lien on the real estate named and described in said report; section 18, in connection with title 5, section'12, provides for the sale of real estate assessed.

Now the theory of assessment is that the improvement pecunia-rily benefits the property assessed ; and it seems to me that such benefit can only be predicated of land in its ordinary meaning, not of easements. If A has a right of way over B’s land, this right is not the kind of property to be assessed ; this appears to me to be the meaning of the several sections of the statute quoted above : map or diagram, lien on the real estate, sale of the real estate, etc. I cannot, therefore, agree with the conclusion of my brethren.

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

Judgment ordered for defendant on verdict with costs.


author: LeaeNbd, P. J.:

text:
    MARY D. DUSENBERRY, Respondent, v. HENRY B. DAWSON, Impleaded, etc., Appellant.

      Alien — when may devise lands — § 5, chap. 115 tf/1845.
    Under tie provisions of section 5 of chap. 115 of 1845, any resident alien of this State who has purchased and taken a conveyance of real estate within this State, may grant or devise the same, and his grantee or devisee may take and hold the same upon complying with the conditions of said section.
    Section 5 is not limited hy the provisions of section 6 of said act, and such grant or devise is valid, even though such grantor or devisor may never have filed the deposition or affirmation required hy the said section 6.

      Goodrich, v. Bussell (42 N. Y., 177) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought for a partition of certain lands, and the only question disputed upon the trial and passed upon by the General Term, relates to the validity of a devise of certain real estate made by one Abraham Dawson, deceased, he being an alien resident of this State at the time of acquiring the land, and of making the will by which the same was devised to the plaintiff. The plaintiff insisted that the devise was valid under section 5 of chapter 115 of 1845, and the defendant claims that the devise was void, because the testator had never filed the deposition or affirmation required by section 6 of the said act.

      Wm. II. De lancey, for the appellant.

      Wm. N. Noble, for the respondent.
   LeaeNbd, P. J.:

The only question is whether the devise to the plaintiff is void by reason of the alienage of Abraham Dawson, a resident of this State.

The express language of section 5 of chapter 115, Laws of 1845, makes the devise valid, unless this section is to be modified by construing it in connection with sections 1 and 6. The appellant claims that section 6, which gives power to a resident alien, after filing the required deposition, to grant and devise, is to be construed so as to limit section 5, and that therefore the rights given by section 5 cannot be enjoyed, unless the resident alien has filed the proper deposition.

The contrary, however, was decided in Goodrich v. Russell (42 N. Y., 177), in respect to section 4. Section 4 is analogous to section 5. The former provides for cases of descent; the latter for cases of grant and devise. The construction given by the highest court of the State to the one section, should, with us, apply also to the other.

It is true that the object of section 6 is not clear. But both sections 4 and 5 omit the requirement of filing a deposition ■by the testator, grantor or intestate, in order that .the devisee, grantee or quasi heir may hold the property. And we see no reason to suppose that the legislature intended to make it necessary.

The judgment should be affirmed with costs.

Present — Leakned, P. J., Booees and Boardman, J.J.

Judgment affirmed', with costs.


author: Leaened, P. J. :

text:
    LAURA HITCHMAN, Respondent, v. JAMES C. WHITNEY, Appellant.

      Seduction — action by mother to recover damages for — Support of illegitimate child.

    In an action t>y a widow to recover damages for the seduction of her daughter, she is not entitled to recover compensation for the support and maintenance of her daughter’s illegitimate child.

      San'geni v.-(5 Cow., 106) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought by the plaintiff, a widow, to recover damage's for the seduction of her daughter by the defendant, while she was working as a servant in his house. The principal question considered at the General Term relates to that portion of the charge, which allowed the plaintiff to recover compensation for taking care of her daughter’s illegitimate child. It appeared that after the daughter had left the defendant’s house and returned to her mother’s she was delivered of a child, and that subsequently in proceedings taken by the poormaster of the town an order was made adjudging the defendant to be the father of the child, in pursuance of which he gave the usual bond, and paid to the plaintiff and her daughter the sum of two dollars per week for its support.

      Wm. H. Sawyer, for the appellant.

      George Morris, for the respondent.
   Leaened, P. J. :

The learned justice charged the jury that when the defendant “had connection with this daughter, he was supposed to trespass on the rights of the plaintiff.” To this the defendant excepted. The remark, taken alone, might be thought to mean that mere sexual connection with the daughter, gave a right to the plaintiff to recover ; contrary to the doctrine of Knight v. Wilcox (14 N. Y., 413). But taking the remark in connection with the rest of the charge, it is plain that the ground of recovery was not made to depend on the connection alone. That is, however, the wrongful act. White v. Nellis (31 N. Y., 405).

The learned justice further charged that the plaintiff was entitled to be compensated for caring for her daughter, and her daughter’s child. The defendant requested the court to charge that the plaintiff was not entitled to recover compensation for taking care of the child. The court declined and the defendant excepted.

Evidence had been given by the plaintiff, under defendant’s objection, as to the value of the care and maintenance of the child from its birth to the commencement of the action. In the case of Sargent v. — (5 Cow., 106, at page 121), the court say: “ The plaintiff is under no legal obligation to support and educate the child ; nor can she be compelled to appropriate the proceeds of this verdict to that purpose ; nor will it afford the defendant any exemption from his liability to provide for the child, when called upon in the regular and due course of law.” That case was similar to the present, and those remarks seem to be just. True, the court in this present case directed the jury to take into consideration the money which the defendant had already paid toward the expense. But the statute makes the mother and the reputed father liable for the support of the child. (1 R. S. [m. p.], 612, § 2.) And the mother of the child in question was still living. • So that it is difficult to see what legal obligation lay on the plaintiff. She was allowed, by the court, to recover for the loss of service of her daughter, and also exemplary damages, if the jury thought the case called for them. The expense of the daughter’s confinement might be a proper item, but not the expense of supporting and educating the child. And it is worth noticing that the complaint does not set up any such expense as an item of damages.

Under tlie facts which appear in this case, it is probable that the jury actually took this item into account in determining the damages.

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

Present — LeabNed, P. J., BooKes and BoabdMAN, JJ.

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


author: LeaeNed, P. J.:

text:
    ROBERT B. LOWRY, as Receiver, etc., Respondent, v. WILLIAM SMITH and others, Appellants.

      Trust — when may be established by parol evidence — Judgment against debtor — subordinate to wife’s equities — Bale of husband's land by receiver — wife’s dower — provision for.

    In an action brought by a receiver in behalf of judgment creditors to set aside, as fraudulent, a conveyance from a husband to his wife, the defendants offered to show that the land was conveyed to the husband by the wife’s father at a time when the father expected to die, upon the payment of $600 by thehusbandjie agreeing to convey'the land to the wife as soon as this amount was repaid to him by her; that the father had formerly agreed with the wife to give her this land; that she was not present at the time of the conveyance to the husband, nor did she know that the deed was taken in the name of her hus■band for more than a year thereafter. Held, that the evidence should have been received; that if true, it imposed upon the husband, if not a legal, at least a moral obligation to convey the property to the wife, and that a conveyance made in pursuance thereof was not fraudulent as against his creditors.
    Judgment creditors of a husband are not dona fide purchasers from him, and their rights are subordinate to the equities of the wife.
    Where a receiver, appointed in proceedings supplementary to execution, brings an action to set aside, as fraudulent, a conveyance made by a husband to his wife, and qbtains a judgment therein directing a sale of the land, such-sale must be made subject to the wife’s inchoate right of dower. The court has no authority to direct the payment to the wife of the estimated value of her inchoate right of dower, in lieu thereof.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought by the plaintiff, who had been appointed the receiver of the defendant William Smith in proceedings supplementary to execution, to set aside, as fraudulent, a conveyance of certain land made by the defendant Smith to his wife.

      Vary <& Stone, for the appellant.

      J. McNaugMon, for the respondent.
   LeaeNed, P. J.:

This is an equitable action, and therefore, although the deed from Smith to his wife be void at law, it may be upheld here, if it be otherwise equitable. (Simmons v. McElwain, 26 Barb., 419.)

As against the judgment creditors of Smith, seeking to set aside this deed, it is competent to show the equities of the wife. Such creditors are not bona fide purchasers from Smith, against whom the equities of the wife could not prevail. (Siemon v. Schurck, 29 N. Y., 598; S. C., 33 Barb., 9.)

The sixty-five acre lot was conveyed by Davis, the father of Mrs. Smith, to Smith in 1856; Smith paid $600. Davis intended the overplus for his daughter. The defendants offered to show that, at the time, Davis expected to die; that he attempted to make a disposition of his property; that Mrs. Smith was to have the sixty-five acre lot less $600; that Smith was directed to have the deeds drawn to that purpose; that the deed was drawn and brought to Davis and his wife in the absence of Mrs. Smith; that the parties to the deed agreed by parol that Smith should hold the deed as security for the repayment to him of the $600, and that when said sum was paid the land should be deeded to Mrs. Smith. The plaintiff objected and the evidence was excluded, and defendants excepted.

It was in evidence that there was a parol agreement between Mrs. Smith .and the father, in respect to the land, before the deed was executed; on the objection of the plaintiff the court excluded evidence as to what the agreement was; and the court also excluded evidence that Mrs. Smith did not consent that the deed should be executed to her husband.

The evidence should have been admitted; it tended to show that (above the $600) the land was a gift from Davis to Mrs. Smith. If this were so, then Smith was in justice and equity bound to convey it to his wife ; and if he has voluntarily done what equitably he ought to have done, the conveyance is not a fraud on his creditors.

It is suggested that the agreement was by parol, and void under the statute of frauds. But “ the transactions out of which a trust of this character arises may be proved by parol, but the trust itself must rest upon the acts or situation of the parties as proved.” (Foote v. Bryant, 47 N. Y., 544.) The trust rested on the situation of these parties, in that Smith, without the knowledge of Mrs. Smith, had received a deed to himself of property, intended by the grantor as a gift to her. Even if Mrs. Smith could not have compelled Smith to convey to her, yet in the language of the case last cited, it was competent for him to regard her equitable rights and to secure them by a conveyance, and he was under the highest moral obligation to do so.

The judgment in this case requires the plaintiff, as receiver, to sell the lands and to pay off two mortgages thereon. The mortgagees are parties, and do not appeal; they cannot complain, therefore, whether or not the mortgages are now payable.

The judgment further directs the payment to Mrs. Smith of her inchoate right of dower. The creditors have no right to interfere with this. If the conveyance to her is shown to be void as against Smith’s creditors, still she had, or has, her inchoate right of dower. That cannot be sold by a judgment creditor, and the estimated value paid to her in lieu thereof. A sale under judgment'and execution would be made subject to her dower right; so, too, must be the sale by the receiver, if he should recover.

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

Present — LeaRned, P. J., Bocees and Boardhan, JJ.

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


author: LEARNED, P. J.:

text:
    ELIZABETH G. CHIPMAN, Appellant, v. JOHN PALMER, Respondent.

      Nuisance — pollution of stream — respective liability of swerral persons causing — Damages.

    This action was brought by the plaintiff, who kept a boarding-house near a small running stream, to recover the damages caused by the wrongful act of the defendant, in discharging the contents of a sewer leading from his boardinghouse into the said stream. A number of other boarding-houses, situated upon the same stream, above that of the plaintiff, also had sewers which discharged into it. TJpon the trial the court charged that the defendant was not liable beyond the extent of the wrong he himself had committed. Meld, that this charge was correct.
    The distinction between the degree of liability of each person contributing to the nuisance in the case above stated, and the cases in which each wrong-doer is liable to the full extent of the damages resulting from the acts of several persons, considered.
    The true measure of damages in such a case is the difference in the rental value of the premises free from, and subject to the nuisance.
    Appeal from a judgment entered in favor of the defendant for tbe costs of this action.
    This was an action to recover damages caused by a nuisance. The plaintiff, in 1874, kept a boarding-house, near which ran a small natural stream. The defendant kept a boarding-house higher up on the same stream, and about a mile and a-half distant, and the sewer from his house ran into this stream. He had not more than forty guests. A large number of other hotels and'boarding-houses also discharged their sewers into this stream, before it reached, plaintiff’s land. Those hotels and boarding-houses would accommodate 10,000 guests. The stream was made offensive, and the plaintiff claims that her business was injured.
    The court charged the jury that they could not hold the defendant liable, beyond the extent of the wrong which he had himself done. That if sewers from private houses and large hotels had all contributed to produce the damage, the jury might apportion it, and that the rule of damages was the rental value. The plaintiff excepted to that part of the charge relating to damages. The jury rendered a verdict for the plaintiff for five dollars.
    The plaintiff insisted that the action was for a tort committed by the defendant and others, and that the defendant was liable for all the damages. It was not claimed that the defendant’s boardinghouse had any connection with any of the others; and it was proved that this stream ■ had been used as a common sewer for twenty-five years.

      Frisbie dé Hulett, for the appellant.

      Charles 8. Lester, for the respondent.
   LEARNED, P. J.:

The exception is to that part of the charge relating to damages. This embraced two points; one the measure of damages, the other the proportion of the defendant’s liability. If either was correct, the exception was too general. (Groat v. Gile, 51 N. Y., 431; Walsh v. Kelly, 40 id., 556.)

The rule of damages was correctly laid down. (Francis v. Schoellkopp, 53 N. Y., 152.)

This would seem fatal to the exception.

But I think the other part’ of the charge was correct. The plaintiff treats the nuisance as the result of a joint act of several persons, of whom the defendant is one. But it is not. It may be difficult to distinguish, in such a case, one part of the nuisance from the other. But yet it is evident that if the defendant’s sewer made the stream offensive, it did so neither more nor less because other sewers did a similar injury. Indeed it is not difficult to suggest a case where the impurity produced by the act of one person might be distinguished from that produced by the act of another. A manu-factory, for instance, might discharge into such a stream substances which in odor and appearance might be distinguished from the discharge of a house sewer. Would there be any reason for holding the owner of the house liable for the damages occasioned by the manufactory ?

The plaintiff cites several cases to support his views. They establish a familiar doctrine, but do not, I think, apply to this case. The cases are Sheridan v. Brook. and N. R. R. (36 N. Y., 39); Chapman v. N. H. R. R. (19 id., 341); Colegrove v. Harlem R. R. (20 id., 492); Creed v. Hartmann (29 id., 591). The doctrine is, that for a personal injury occasioned by the negligence of several persons, there is a separate as well as a joint liability, and the person injured may, at his option, sue one or all of the wrong doers.

But the case in 29 N. Y., 591 is a case of a joint act. The others are cases where the separate negligence of two parties combined to produce the injury. That is, the negligence of one would not have caused the injury had it not been for the negligence of the other.

Now, in the present case, if the defendant’s sewer had run into one stream and had made it offensive to the plaintiff; and if the other persons referred to above had discharged their sewers into another stream, and had made that also offensive to the plaintiff, there would plainly be no joint liability, and no liability' of the defendant except for his own acts. This rule would be the same if the two supposed streams ran side by side, with a very narrow bank between them. And it would still be the same if the two supposed streams at last united before they reached the plaintiff’s premises.

The learned justice charged that the defendant was liable for the injury caused by his own act. There might be a case where two independent sewers emptied into a stream, and the nuisance produced by each was so great that, practically, the two did no more harm than each would do alone. I do not understand that the learned justice charged that, in such a case, each would be liable only for half the injury.

The case in question was quite different. It was really doubtful whether the sewage from the defendant’s house had any appreciable effect on the stream at that part where it was claimed to be offensive to the plaintiff. Many other sewers emptied into the stream at points nearer to the plaintiff; so that it was left for the jury to ascertain what part of the injury was caused by the defendant.

The doctrine that the defendant is not liable for the injury produced by the acts of others who drained into the stream is sustained by the case of Wallace v. Drew (59 Barb., 413), where several persons, acting independently, had obstructed a stream, and thus had injured the land of the plaintiff.

It is illustrated by cases where injuries have been done, at the same time, by domestic animals belonging to different owners. (Van Steenburgh v. Tobias, 17 Wend., 562; Achmuty v. Ham, 1 Den., 495; Partenheimer v. Van Order, 20 Barb., 479.) And it is laid down in the case of Wood v. Sutliff.

The judgment should be affirmed, with costs.

Present — Leaenbd, P. J., and Boabdman, J. Bocees, J., taking no part.

Judgment affirmed, with costs.


author: LbaRNED, P. J.:

text:
    DANIEL RYAN, Appellant, v. MICHAEL HARRIGAN, Respondent.

      Justice’s Court — title to land, when in question —Code, § 59.
    This action was hrought in a Justice’s Court to recover the damages occasioned by the negligent and careless act of the defendant, in discharging the waste and surplus waters from his lot upon that of the plaintiff. Upon the trial plaintiff gave proof, without objection, that he was in occupation of the lot, and described it as his. Subsequently, it appeared that the plaintiff did not live on the premises. The defendant moved for a nonsuit on the ground that the plaintiff was not in possession and occupancy of the premises, which motion was denied. Held, that this motion did not bring in question plaintiff’s title to the premises, and that the justice was not thereby deprived of jurisdiction over the action.
    Appeal from a judgment of the County Court of Rensselaer county, reversing a judgment in favor of the plaintiff, rendered by a justice of the peace.

      The action was brought in a Justice’s Court to recover damages occasioned by the negligence and carelessness of the defendant, in discharging the waste and surplus waters from his lot upon that of the plaintiff. The defendant interposed a general denial.
    On the trial plaintiff gave (under defendant’s objection that it was irrelevant, improper and immaterial, calling for an improper basis and estimate of damages, and also for the conclusion of the witness as to the amount and extent of damage) certain evidence tending to show the value of the house on the lot in question before and after the water overflowed it.

      James Brice, for the appellant.

      jy. P. Hinman, for the respondent.
   LbaRNED, P. J.:

The defendant did not set up title and give an undertaking under sections 55 and 56 of the Code.-

The question is whether it appeared on the trial from the plaintiff’s own showing, that the title to real property came in question and was disputed by the defendant. (§ 59.) The words “ on the trial” do not apply to the joining of issue, but to the trial. (Koon v. Mazuzan, 6 Hill, 44.) There was nothing on the trial of this case to show that the defendant disputed the plaintiff’s title. (Boyer v. Schofield, 2 Keyes, 632; Althause v. Rice, 4 E. D. Smith, 347; Bellows v. Sackett, 15 Barb., 96.) In the case of Main v. Cooper (25 N. Y., 180), cited by the defendant, the title was disputed.

This is not a case of wild land where possession is only constructive. The plaintiff gave proof, without objection, that he was in occupation of the premises. He described them as his. Other witnesses used the same language. Afterwards it appeared that the plaintiff did not live on the premises. The defendant then moved for a nonsuit on the ground that the plaintiff was not in possession and occupancy of the premises, which was denied. This objection did not point out that the title was disputed. (Browne v. Schofield, 8 Barb., 239.) Hnless it be disputed, the justice does-not lose jurisdiction. (Adams v. Rivers, 11 Barb., 390; Fredonia and S. P. R. Co. v. Wait, 27 id., 214.) In this case the complaint averred damage by turning water on the plaintiff’s premises. The defendant, in his answer, might have denied the plaintiff’s title and might have given security under sections 55, 56.

If the general denial in the answer is claimed to have been a denial of title, then he should have given security. As he gave none, the justice had jurisdiction, and the defendant was precluded from drawing the title in question. (§ 58; Adams v. Rivers, ut supra.)

The defendant objects to the admission of certain evidence, on the ground that it calls for damages to the reversionary interest. All that appears is, that tenants of the plaintiff were occupying the house, whether by sufferance, or in what manner does not appear. At any rate the reversioner might sue (1 R. S., 750, § 8), and the complaint is sufficient, unless under specific objections, to permit the admission of this evidence. The kind of evidence to which the defendant now objects seems to be proper. (Honsee v. Hammond, 39 Barb., 89.)

We think that the judgment of the County Court should be reversed and that of the justice affirmed, with costs.

Present — LearNed, P. J., Bocees and BoaRdmaN, JJ.

Judgment of County Court reversed and that of justice affirmed, with costs.


author: LeaisNed, P. J.:

text:
    JOSEPH B. WILKINSON, Appellant, v. THE FIRST NATIONAL FIRE INSURANCE COMPANY OF WORCESTER, MASSACHUSETTS, Respondent.

      Statute of limitations— Code, § 105 — not applicable to limitations imposed by contract— Policy of insurance — limitation of action on — effect of injunction restraining action upon policy.

    Section 105 of the Code providing, that when the commencement of an action shall he stayed by injunction or statutory prohibition, the time of the continu- ' anee of the injunction or prohibition shall not be'part of the time limited for the commencement of actions, applies only to the limitations prescribed by the preceding sections, and not to limitations arising from the contract of the parties.

      Accordingly, where a policy oí insurance provided that no suit should he sustainable, unless commenced within the term of twelve months next after a loss, held, that no action could be brought thereon after the expiration of that term, even though the plaintiff had, during the said twelve months, been restrained by injunction from commencing an action thereon.
    Semble, that in such a case the plaintiff must move to modify the injunction so that an action may be brought upon the policy, or else he must rely upon the undertaking given upon the issuing of the injunction.
    Akpeai from a judgment in favor of the defendant, entered upon the report of a referee. The action was brought upon two policies of insurance issued by the defendant. The only question passed upon by the General Term, related to the effect of a clause contained in each of the policies, providing that no action should be sustained thereon, unless commenced within twelve months next after the loss. This action was not commenced until nearly three years after the loss. This delay was sought to be excused on the ground that the plaintiff’s assignor, to whom the policies were issued had, during that period, been restrained by injunction from maintaining an action thereon. This injunction was granted in an action commenced by the Cambridge Valley-National Bank against the plaintiff’s assignor, the bank claiming that the policies had been assigned to, and belonged to it. Prior to the service of this injunction an assignment of the policies to the plaintiff had been executed, but not delivered, subsequently the action brought by the bank was discontinued and the assignment of the policies was then delivered to the plaintiff, who, thereupon, commenced this action.

      Esek Oowen, for the appellant.

      D. M. Westfall, for the respondent.
   LeaisNed, P. J.:

Is this action barred by the limitation in the policies % A condition of this kind, it is settled, bars an action unless waived. (Ripley v. Ætna Ins. Co., 30 N. Y., 136; Roach v. N. Y. and E. Ins. Co., 30 id., 546; Mayor v. Hamilton Ins. Co., 39 id., 46; Riddlesbarger v. Hartford Ins. Co., 1 Wall., 386, and cases there cited.)

The plaintiff insists that he has been restrained by injunction from bringing any action; that during such restraint the time of limitation did not run, and that therefore it has not expired. And so the learned referee held ; applying to this case section 105 of the Code. That section is found in chapter 2; the previous sections of which provide for the time of commencing actions other than for the recovery of real property. It enacts that when the commencement of an action shall be stayed by injunction or. statutory prohibition, the time of the continuance of- the injunction, or prohibi tion, shall not be part of the time limited for the commencement of the action. Now, this expression “ time limited for the commencement of the action,” evidently refers to the limitations prescribed by the preceding sections; that is, to the statutory limitations. It is like the several exceptions contained in sections 101 to 104; such as the case of a party being under age, and the like. These all are exceptions to the statutory limitations. They are enacted, not with reference to any limitation by contract, but with reference to the subject of that chapter.

In one case a similar question has been decided. Section 104 enacts that, when an action shall be commenced within the prescribed time, and the judgment shall have been reversed, the plaintiff may commence a new action within one year. In Missouri a similar provision allows a party who suffers a nonsuit to bring a new action within one year. In the case of Siddlesbarger v. Hartford Ins. Co. (ut surpra), it was claimed that this provision relieved the plaintiff from the effect of a limitation in a policy of insurance similar to that in question. The plaintiff had commenced one action within the year limited by the insurance policy, and the action then pending within one year after the dismissal of the former.

But the court held otherwise. They said: “ The rights of the parties flow from the contract. That relieves them from the general limitations of the statute, and, as a consequence from its exceptions also. * * * The contract declares that an action shall not be sustained unless such action, not some previous action, shall be commenced within the period designated. It makes no provision for any exception, in the event of the failure of an action commenced; and the court cannot insert one without changing the contract. * * * The commencement, therefore, of the present action within the period assigned, was a condition essential to the plaintiff’s recovery.” That language applies here. This present contract makes no provision for any exception, in the event of a restraint by injunction; and the court cannot insert one without changing the contract.

It may be said that it is unjust that the plaintiff should be barred, when he could not have sued without a violation of the order of the court; and that, by equitable analogy, the exception of the statute should be applied. But the same argument applied with equal force, in the case last cited; and it was not allowed to prevail. We ought, therefore, to consider that decision as authoritative on this question.

If it should be asked, what remedy a party, thus enjoined, has against the danger of losing his right of action ; it may be suggested that he could move to modify the injunction so that he might sue; or he might rely upon the undertaking given on obtaining the injunction, should he lose his right of action by means of the restraint. But even if he be remediless, his loss is due to a contract which he has voluntarily made.

I come to this conclusion with reluctance. It seems to me to show the evil of holding such limitations valid. But it is too late to question their validity, until legislatures shall interfere.

In this view it becomes unnecessary to examine whether or not the plaintiff’s assignor was in fact restrained from. bringing an action, or any of the other qustions in the case, which are thoroughly examined in the able opinion of the learned referee.

I think that the judgment should be affirmed for the reason above stated.

Present — LbaeNed, P. J., Bookes and Boakdman, JJ.

Judgment affirmed, with costs.


author: LEARNED, P. J. :

text:
    MARTIN PAYNE, Respondent, v. THE TROY AND BOSTON RAILROAD COMPANY, Appellant.

      Negligence — Accident at raik'oad crossing — evidence of subsequent changes in, by railroad company — ■ inadmissible.

    In an action to recover damages for an injury to plaintiff’s horse, received while passing over a crossing upon defendant’s track, the plaintiff was allowed against the defendant’s exception and objection, to show that shortly after the accident the defendant took up the planks at the crossing and replaced them by new ones. Held, that this was error.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the judge’s minutes.
    The action was brought to recover damages for an injury to the plaintiff’s horse, received while crossing over the tracks of the defendant’s railroad, where it crosses Second street, in the city of Troy.

      Esek Cowen, for the appellant.

      B. A. Parmmter, for the respondent.
   LEARNED, P. J. :

The plaintiff was asked on the trial whether, since the time his horse was injured at the crossing, different plank had been put down. The defendants objected, and the evidence was admitted against their objection. He answered that it had. Again, another witness for the plaintiff was asked: Did you see them laying down new plank there shortly after this accident? The defendants objected, and the evidence was admitted against their objection. He answered: Yes.

I understand the doctrine laid down in Dougan v. Champlain Trans. Co. (56 N. Y., 1; followed in Salters v. Del. and Hud. Canal Co., 10 S. C. N. Y., 338) to be that, in actions for injuries, arising from alleged negligence of the defendants, such subsequent acts as were thus proved are inadmissible. Whether the defendants were negligent was a question to be decided upon the facts as they existed at the time of the injury.” The only way in which such subsequent acts could bear on the question would be as an admission that they had been negligent. So a jury would be likely to understand such proof. Vet it would plainly be unjust to the defendants that they should not take additional precautions against accident, without the risk that these precautions should be construed into an admission of prior negligence. To put down a new plank was an act which the defendants might do for various reasons. Yet it would be easy to argue from that act to a jury, that the defendants themselves knew that the crossing had been badly constructed, or was out of repair. It seems to me that this evidence was improperly admitted, and that a new trial is therefore necessary. This makes it unnecessary to examine the other questions. The casé seems to have been submitted to the jury with great fairness by the learned judge. Whether there was sufficient evidence to sustain the verdict, is a question which it is not necessary to decide; nor do we mean to say that (omitting this objectionable evidence) there ■was any thing to go to the jury.

A new trial should be granted, costs to abide event.

Present — LeaRNed, P. J., BooKes and Boardman, JJ.

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


author: BocKes, J.:

text:
    THE BOARD OF SUPERVISORS OF THE COUNTY OF DELAWARE, Plaintiff, v. CHARLES A. FOOTE, Defendant.

      Conflicting decisions of Commission and Court of Appeals — county treasurer— right of to retain one per cent allowed by comptroller to his own me — Payment of money morally and equitably due — right to recover.

    Upon appeal from a judgment of nonsuit entered in this action, the Commission of Appeals reversed the judgment, holding that upon the facts proved the plaintiff was entitled to recover. Subsequently the Court of Appeals, in another cáse, held that upon the same facts the plaintiff could not recover. Upon this case doming on for a new trial, held, that it was the duty of the court to follow the decision oí the Court of Appeals, although a different rule was laid down therein than had been previously declared by the Commission of Appeals in this case.
    The defendant, who was county treasurer of the county of Delaware from 1861 to 1869, paid over to the county during each of these years the one per cent upon the State tax allowed to him by the comptroller, upon his annual settlement, under the belief that the said sums belonged to the county. In 1869, defendant having learned that the said sums belonged by law to him, applied to the board of supervisors, which x>assed a resolution authorizing him to retain the said money until called upon by the comptroller to pay over the same, in accordance with which the defendant retained the same from the moneys then in his hands. In 1870 the hoard of supervisors rescinded this resolution, and* subsequently brought this action to recover the said money. Reid, (1) that the one per cent so retained belonged to the defendant, and not to the county, (2) that, though the county might not have been legally hound to refund the money, as it was paid under a mistake of law and not of fact, yet it was morally hound so to do, and that having paid the same, it could not thereafter recover it hack.
    MotioN for a new trial on exceptions ordered to be beard in the first instance at the General Term, after a nonsuit directed by the court.
    This action was brought to recover the sum of $1,940.74 and interest, which the plaintiff claims the defendant unlawfully retained as late county treasurer of the county of Delaware.
    The defendant was county treasurer of said county for nine successive years, commencing January 1, 1861, and ending December 31, 1869. During the first eight official years of said term of office defendant received and retained $702.59 for the first year, and each of the seven years following the sum of $500 as his salary, with the consent of the board, pursuant to statute. He made his report each year to the board of supervisors, which was duly accepted, and he was by said board allowed to retain said $500 as his salary, and his account was thus settled each and every year. The board never, in advance, fixed his salary as such treasurer, pursuant to the statute of 1846.
    In addition to the said sum of $500 retained by him each year as aforesaid, defendant also retained, the last year he was such county treasurer, the sum of $1,940.74, for the recovery of which sum and interest this action is brought. The defendant claimed that by the action of the board of supervisors, in 1869, he was authorized to retain the same. He claimed the amount was what be ought to have received as a per centage on the State taxes in the seven previous years, and because he had not retained the same each year he could then take the whole sum.
    At a meeting of the board of supervisors December 9, 1869, the following resolution was adopted:

      “Resolved, That the county treasurer be allowed to retain the one per cent allowed him by the State comptroller for the disbursement of the State tax, until called upon by the comptroller to pay over the same, and for which the county treasurer has heretofore given bonds to the State comptroller.”
    At a meeting of the board December 9, 1870, the supervisors rescinded the resolution, and upon the defendant’s refusal to pay the same or any part thereof, this action was commenced.
    The action was first tried at Delhi, in the May term, 1871, before Judge Baloom and a jury. The court refused to let the case go to the jury, and nonsuited the plaintiff. The plaintiff duly excepted, and appealed to the General Term, where the nonsuit was affirmed. The plaintiff then appealed to the Commission of Appeals and the nonsuit was set aside and new trial ordered, costs to abide the event. A second trial was had before Justice Eollett and a jury, at the Circuit held at Delhi, in December, 1875, when the court again nonsuited the plaintiff and refused to let the case go to the .1“7-
    When the case was decided in the Commission of Appeals, the court held that plaintiff was entitled to recover the money and that defendant was liable therefor in this action.

      A. J. Parker, for the plaintiff.

      S. Hand, for the defendant.
    The board of supervisors, at its meeting in 1870, cannot legally readjudge the matters settled at the meeting in 1869, nor, in the absence of fraud or mistake of fact, reassert a claim against defendant which has been adjusted. {Suprs. of Ohencmgo v. Birdsall, 4 Wend., 453, 460; People ex rel. Harvey A. Ames, 19 How., 551; People v. Suprs. of Schenectady Go., 35 Barb., 408, and the numerous cases there cited; Suprs. of Onondaga v. Briggs, 2 Den., 26; 4 Wend., 460.) The power of the board is judicial. Once executed their power is exhausted. (See the cases above cited.) The claim of the defendant to retain these moneys, as liable to be called upon for them by the State, or, if not, as entitled to them himself, was a fair one; and its arrangement and concession by the board was a “ settlement and allowance,” and within their powers. Being a compromise of a disputed claim, whether good or bad, it is binding. {Suprs. v. Bowen, 4 Laos., 24; Palmer v. North, 35 Barb., 282; Stewart v. Ahrenfield, 4 Den., 189; Blc. v. Blair, 44 Barb., 641; Hall v. Brown, 15 Johns., 194; Seaman v. Seaman, 12 Wend., 381.)
   BocKes, J.:

It must be admitted, I think, that the decision in this case by the Commission of Appeals, on the controlling question in it, is in antagonism with the later decision in the Court of Appeals in The Board of Supervisors of Monroe Co. v. Otis et al. (62 N. Y., 88). We are bound by the latest decision in the court of dernier resort. (The Mechanics’ and Traders’ Bank v. Dakin, 15 S. C. N. Y. [8 Hun], 431.) It is well said in the case cited that there can be but one prevailing rule of law upon the same subject at the same time, and that the proper course to be pursued by the subordinate courts, is to apply the law to the facts as finally established by the determination of the court of last resort, and this should be observed, although a different rule may have been peviously declared in the same case, by a court of co-ordinate jurisdiction.

Now, I understand it to be decided in the Otis Case that the money, or rather the amoimt of money, here sought to be recovered from the defendant, was made up of funds which by law belonged to the latter ; in point of fact, such amount was the aggregate of one per cent on the State tax, retained therefrom by the defendant as county treasurer, or returned to him by the comptroller from the State tax. Had he retained this per centage in his own hands, the county could not have recovered it from him ; this was held in the case cited ; it was there decided that such per centage belonged to the defendant, and in effect that he was not to be controlled in its disposition by any action of the board of supervisors. It was said in the opinion that it was an allowance by the State, and as a fee or commission earned by and due to the county treasurer;” and further, “ no deduction was due the county from the State (therefor) and it was not entitled to any compensation or commission from tbe State thereforand still further, “ the compensation was for the official services of the treasurer rendered the State.” The point being settled by this decision that these fees belonged-to and became the money of the defendant, on which the county had no claim whatever, let us follow the ease to its conclusion on the facts.

Under the supposition, entertained by all parties at the time, that the county might claim these funds from the defendant, he passed them to its credit, and they were appropriated and applied by the county to its use. Subsequently, on discovery of the mistake upon which all parties had acted, and recognizing the fact that the county had taken the benefit of the defendant’s money, the board of supervisors directed its restoration or repayment, and the amount was, under such direction, refunded to him-; all this certainly was but just to the defendant, and to the county as well, which, it seems, acted in this instance through an honest representation. It is difficult to see by what right or on what just principle this sum can be recovered back by the county. Let it be admitted that it came to the use of the county, or was paid over to the county under a mistake of law, and not of fact, hence not recoverable by compulsory proceedings, still it remained with the county to waive this technical obstruction to a recovery at law, and to do justice. The county restored to the defendant only what belonged to him in honesty; this he may hold. When one pays to another what the law would not compel him to pay, but what in equity and good conscience he ought to pay, he cannot recover it back. (Bize v. Dickason, 1 Durnf. & East, 285.) The nonsuit was properly directed.

The motion for a new trial must be denied, and the defendant is entitled to judgment with costs.

LeabNED, P. L, and Boardman, J., concurred.

Motion for new trial denied, and judgment ordered for defendant with costs.


author: BooKes, J.:

text:
    ETHAN A. PIERCE, Respondent, v. SAMUEL KEATOR, Appellant.

      Conveyance to raih'oad — reservation of right, to cultivate the land not used by the company —personal to the grantor.

    Plaintiff, through whose farm a railroad ran, conveyed to the company in fee a strip thereof, subject to the following reservation or condition: “ Said parties of the first part also to have the privilege of mowing and cultivating the surplus grounds of said strip of land not required for railroad purposes.” Subsequently the farm was sold upon the foreclosure of a mortgage and conveyed to the defendant’s grantor, the deed excepting and reserving the said strip “ containing six acres and eighteen one-hundredths of an acre of land, more or less, which is reserved as conveyed to the said ” ■ company. . Held, that the right to mow and cultivate the strip was not reserved as appurtenant to the farm of which it formed a part, but was a personal reservation or license in favor of the plaintiff. If regarded as a condition it was a condition subsequent, and could only be reserved in favor of the grantor and his heirs, and could not be assigned to a third person.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      M. M. Waters, for the appellant.

      M. G. Miner, for the respondent.
   BooKes, J.:

This action was brought to recover the value of a quantity of wheat, which grew on a strip of land previously conveyed by the plaintiff to the New York and Oswego Midland Railroad Company. The plaintiff sowed the wheat, and when it was grown the defendant harvested and removed the crop. The conveyance by the plaintiff to the railroad company was a grant in fee, subject to the following condition (among others which need not be here noticed), to wit: “ Said parties of the first part also to have the privilege of mowing and cultivating the surplus grounds of said strip of land not required for railroad purposes.” The defendant claimed the benefit of this condition under title obtained by mortgage foreclosure. At the time of the grant to the railroad company the plaintiff owned the farm through which the road was laid, subject to a mortgage which was afterward foreclosed. On the foreclosure sale one Elijah Wheeler became the purchaser, and took the referee’s deed, pursuant to the decree in the foreclosure suit. .The defendant claims under Wheeler’s title. The referee’s deed to Wheeler embraced the entire farm, but contained the following exception : “Excepting and reserving, however, from said above described premises, viz.: ” (here follows a description of the strip conveyed to the railroad company by metes and bounds, closing as follows): “ Containing six acres and eighteen one-hundredths of an acre of land, more or less, which is reserved as conveyed to the said Oswego and Midland Railroad Company.” It may be here observed that Wheeler took title subject to this exception and reservation in the referee’s deed to him. He took only what the conveyance gave him. His rights were limited by the exceptions and reservations therein (Bache v. Purcell, 51 How., 270), to the extent of such exception. Wheeler obtained no title by his purchase under the foreclosure proceedings, and the defendant, claiming under him, of course had no greater rights. Thus we find that the defendant’s title was subject to the conveyance to the railroad company; that is, it was subject to the grant to the company, as limited or qualified by the conditions expressed in the conveyance. To the extent that such conditions were appurtenant to the plaintiff’s farm, they passed to Wheeler, and through him to the defendant. The question then arises, was the right reserved or given back to the plaintiff, to mow and cultivate the strip conveyed to the railroad com-. pany, an appurtenance to the farm of which such strip was a part at the time of the conveyance? Manifestly it was not. This right did not attach to the title of the farm, but was a separate and independent right. As the learned judge held at Special Term: It was a mere personal right to the plaintiff. The railroad company gave the privilege to the plaintiff of mowing and cultivating their surplus ground, and secured to him such right by making it one of the conditions of the grant; but it was in no respect a burden imposed upon one piece of property for the benefit of another. It was a condition which the plaintiff might enforce, waive or discharge as he might see fit. That this right was personal to the plaintiff is shown, I think, very clearly by the line of reasoning adopted by the judge in his opinion at Special Term, and by the authorities cited by him. He shows that the railroad company under our statutes was authorized to acquire, by purchase and grant, an absolute fee or any less estate in land (Nicoll v. N. Y. and E. R. R. Co., 12 N. Y., 121; Heath v. Balmore, 50 id., 302; Heard v. City of Brooklyn, 60 id., 247); hence that the conveyance was to be construed as if both parties to it were natural persons; that the right reserved to the plaintiff to mow and cultivate a portion of the land granted, was not an exception from the grant, but a right taken back out of that which was granted (Gould v. Glass, 19 Barb., 192; Craig v. Wells, 11 N. Y., 315); that it was a right to profits a/pprendre; and that the. rights to profits apgyrendre were rights reserved in favor of persons — mere personal rights. (Post v. Pearsall, 22 Wend., 432, 433.) The exception in the deed to Wheeler took from that conveyance (saved from the grant) what was conveyed to the railroad company. Now, this strip was conveyed to the company. The fee vested at once. That the plaintiff had the right to mow and cultivate a portion of the land did not limit the effect of the exception. This was a personal right; a mere license to the plaintiff to enter upon the land for the purpose specified. If regarded as a condition attaching to the grant, it was a condition subsequent, which can be reserved only for the benefit of the grantor and his heirs. A third party can derive no advantage from it. (4 Kent, 122; Nicoll v. N. Y. and E. R. R. Co., 12 N. Y., 121, 131; Van Rensselaer v. Ball, 19 id., 103, 104; Main v. Green, 32 Barb., 456; Ives v. Van Auken, 34 id., 566; Fonda v. Sage 46 id., 109.) The right reserved to the plaintiff was of that personal character hence it was not assignable. (See above cases.) Now, an exception of the land as conveyed ” to the company would except the land with the privilege or license to the plaintiff with which it was burdened; to wit, with the privilege or license to him, to mow and culivate it as agreed between him and the company ; for thus it was conveyed.

If these conclusions be sound, the judgment appealed from should be affirmed.

The deed from Crandell, referee, to Wheeler, under which alone the defendant claims, contains this clause: “Excepting and reserving from tbe said premises ” (tben follows the description of the railroad strip), containing six acres and eighteen one-hundredths of an acre, which is reserved as conveyed to the O. and M. R. R. Oo.

This seems to me to be an exception of the six and eighteen one-hundredths acres from the conveyance of the rest of the farm to Wheeler. Hence, the defendant, claiming under Wheeler’s deed, obtained no better title than Wheeler did, and Wheeler never had title to the six and eighteen one-hundredths. I do not think that the words which is reserved as conveyed to the O. and M. R. R. Co.,” limit the effect of the absolute exception of these lands, made by the words, “ excepting and reserving.” They were intended, I think, only for identification of the land.

I think the judgment should be affirmed, with costs.

BoardmAN, J., concurred.

Present — Learned, P. J., BooKes and Boardhan, JJ.

Judgment affirmed, with costs.


author: Booses, J.:

text:
    THE ALBANY CITY NATIONAL BANK, Plaintiff, v. THOMAS KEARNEY, Impleaded with THOMAS MULHALL and JOHN W. McNAMARA, Defendants.

      Purchase of Judgment by sheriff, while execution thereon is in his hands — when sustained,.

    This was an application for leave to issue an execution on a judgment purchased by the applicant while a deputy-sheriff, and while an execution thereon was in his hands for collection, still in force, but under which no levy had been made. The purchase was made in 1867, and no execution had ever been issued by him thereon. Held, that there was no rule forbidding the purchase of a judgment under such circumstances, and that the application should be granted.
    Appeal from an order made at the Special Term, giving liberty to the assignee of the plaintiff to issue an execution upon the judgment recovered herein. The judgment was entered in the above entitled action in the Supreme Court for $132.01 damages and costs, on the second day of April, 1867; execution was issued tbereon to the sheriff of Albany county on the fifth day of July, 1867, and was on the same day delivered to the under-sheriff of the county. On the twenty-ninth of August following, and within the life of the execution, the plaintiff assigned the judgment to the under-sheriff, Sigsbee, who paid full consideration therefor, and who still owns it, and now seeks to enforce it by execution. No levy was made under the execution of July 5, 1867, nor were any steps ever taken to enforce it, in so far as is disclosed by the paper before the court.
    On application of Sigsbee, the assignee of the judgment, an order was granted at Special Term giving liberty to issue execution thereon. From this order thé defendant Kearney appealed to the General Term.

      Jacob Q. BunMe, for N. Sigsbee, assignee of plaintiff, respondent.
    Hand, Hale & Swartz, for the defendant appellant.
   Booses, J.:

It is a well settled rule, sound in principle and in policy, that a sheriff cannot pay with his own money the judgment , on which he holds an execution, and then levy and collect the amount from the debtor’s property ; ñor will he be permitted, after he is in default for not collecting or returning an execution, to pay the amount and wield the process for his own indemnity. The following cases establish these propositions: Reed v. Pruyn (7 Johns., 426); Bigelow v. Provost (5 Hill, 566); Voorhees v. Bros (3 How., 262); Carpenter v. Stilwell (12 Barb., 128; S. C., 11 N. Y., 61). A sheriff will not be permitted to enforce an execution for his own benefit in any respect, nor to indemnify himself for his own default or laches. In this case the sheriff has not, through himself, nor has his under-sheriff, the assignee, attempted to enforce the execution for his own benefit; nor has either sought to cover his own default by any use of the process of the court. No levy had been made when Sigsbee took the assignment, nor was any attempt made to enforce the execution thereafter; if the sheriff or his under-sheriff had been in default, and had made the purchase of the judgment to cover his delinquency, the case would have been quite different. It was held in Carpenter v. Stilwell (12 Barb., supra;), that it was a salutary rule that when a sheriff has neglected, or violated his duty, so as to be required to pay the plaintiff, he ought not to he permitted to use the judgment for his own benefit; but even this was qualified by the following addenda: “ except under peculiar circumstances, and by express leme of the court.” I understand the rule recognized in this case to receive the sanction of the Court of Appeals. (Carpenter v. Stilwell, 11 N. Y., 61.) See, also, remarks of Bronson, J., in Mills v. Young (23 Wend., 314). As was remarked by Ingalls, J., at Special Term, no charge of fraud, collusion or misconduct is made against the officer; the purchase was, in so far as is here disclosed, fair and without improper purpose in any respect. The defendants have not suffered any wrong, nor could the action of the officer operate in any way injuriously to their rights; there is no principle of public policy here involved, which requires vindication, by a refusal of the application made to the court for liberty to enforce an honest unpaid judgment.

Order affirmed, with ten dollars costs and disbursements.

BoaRdmaN, J., concurred.

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

Order affirmed, with ten dollars costs and disbursements.


author: EoaedmAN, J.: LEARNED, P. J.: BooKes, J.:

text:
    STEPHEN ALDRICH, Appellant, v. AARON SAGER, Respondent.

      Oivil damage aet — Ingwry to wife through reckless driving — husband may maintain action for.

    The defendant sold liquor to the son-in-law of the plaintiff, who became intoxicated thereby, and in consequence thereof drove a team, behind which he and plaintiff's wife were riding, so recklessly as to upset the wagon and break the wife’s arm. In an action by the husband to recover for the loss of her services and the expenses of medical attendance, nursing, etc., held,, that he was entitled to recover.

      MotioN for a new trial, On exceptions ordered to be heard in the first instance at the General Term after a nonsuit directed by the court.
    The action was brought under the civil damage act, chapter 646 of 1873. The plaintiff was nonsuited, on the ground that the evidence failed to show that the plaintiff had been injured in his property, person or means of support by reason of the injury sustained by his wife. The evidence tended to show that one Crandall, plaintiff’s son-in-law, bought liquor of the. defendant, became intoxicated thereby, and by reason thereof so recklessly drove the team, behind which he and plaintiff’s wife were driving, that the wagon was upset and the wife’s arm broken, whereby the plaintiff lost the services of his wife and incurred expenses for medical attendance, nursing, etc.

      Irving H. Palmer, for the appellant.

      Wm. H. Warren, for the defendant.
   EoaedmAN, J.:

My opinion in Volans v. Owen, etc., decided at this term, applies directly to the present case. Both are actions under the civil damage act of 1873. The former was for damages suffered by the father of a minor son, who became sick and deranged through intoxication, whereby the father lost his services and incurred expenses for medical services, nursing, etc. The present case is brought by a husband for injuries done to his wife by a son-in-law, while in a state of intoxication and in consequence of such intoxication, whereby the husband lost the services of his wife and incurred expenses for medical attendance, nursing, etc.

The ordinary services of the wife in the household belong to the husband; for any injury to her whereby she is unable to render such services the husband can maintain an action. (Filer v. N. Y. C. and H. R. Railroad Co., 49 N. Y., 47; Brooks v. Schwerin, 54 id., 343.) It is also his legal duty and obligation, to furnish for his wife suitable medical attendance and care when necessary.

The loss of the wife’s services and the necessary expenses incurred to care for and cure her of her injuries were proper elements of damage, which the husband could recover under the law of 1878, upon a proper case made.

The evidence tended to establish that one Crandall bought liquor of the defendant, became intoxicated thereby, and bj reason thereof so recklessly drove the team, behind which he and plaintiff’s wife were riding, that the wagon was upset and the wife’s arm broken, whereby the plaintiff was injured in the respects stated. Under this law I can see no reason why a recovery in such a case may not as well be had, as though one of the horses belonged to plaintiff and was injured in the same manner or through the same causes.

It follows that the judgment of nonsuit should be reversed and a new trial granted, costs to abide the event.

LEARNED, P. J.:

In accordance with the dissenting opinion in Quain v. Russell (15 S. C. N. Y., 321), I think the wife has not an ownership in the husband’s services or ability to work, but that he has such ownership in her services and ability; and the constitutionality of the law being settled in this court, I concur in the foregoing opinion.

BooKes, J.:

I concur in the foregoing opinion. (See, also, Franklin v. Schoonmaker, 3 Weekly Dig., 390.) And I may here add, as my individual opinion, that a widow may maintain an action for loss of support, from the death of her husband, against the person who sold him liquor, causing his intoxication and consequent death.

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

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


author: BoARDMAN, J.:

text:
    JOHN MORAN, Appellant, v. THE CITY OF TROY and BENJAMIN H. HALL, Chamberlain of the City of Troy, Respondents.

      Ghairier of the city of Troy —-power of common council as to repavement —Assessment on property benefited, — -cm exercise of the power of taxation, not of eminent domain.

    The charter of the city of Troy, chapter 129, of 1872, authorizes the common council to pave, and, from time to time, to repave the streets, and provides that “ the expenses of all new work and improvements and alterations, not in the nature of ordinary repairs, shall be assessed and be a lien upon the property benefited.” . Held, that, where a street had been paved with cobble-stone pavement, and the expenses thereof assessed upon the adjoining property, the common council had power to direct such street to be repaved with granite block, and the expenses thereof to be assessed upon the property benefited.
    The legislature has the same power to authorize the expense of repaving to be assessed upon the property benefited, as they have that of the original paving.
    The assessment for such repaving is a species of taxation not covered by the clause of the Constitution, forbidding the taking of private property for public uses without just compensation.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    This action was brought by the plaintiff to restrain the collection of an assessment, imposed upon a house and lot owned by him, for the repaving of Broadway, in the city of Troy, with granite block pavement.

      Esék Oowen, for the appellant.
    The charter of the city of Troy provides that “the expense of all new work or improvements and alterations, not in the nature of ordinary repairs, shall be assessed and be a lien upon the property benefited.” And the question arises whether the replacing of a worn out pavement by a new one “is new work” or “ordinary repairs,” within the meaning of the charter. If a portion of the cobble-stone pavement had got out of order and had been taken up and relaid with cobble-stone, I suppose there would be no doubt that it was a “repair,” and if this would be the case in front of a single lot on a street, I do not see why the same principle would not apply to the whole street. - If so, why should there be any difference in the rule when a better material is substituted for the old one. In both cases, a once good roadway has got out of condition ? In both eases, the roadway is restored to a good condition. It must come under the head of “ repairs,” and as the putting of a defective roadway into condition is a very common thing, it comes under the head of “ ordinary repairs.” {People v. Brooklyn, 21 Barb., 489.) The legislature had no right to confer upon the common council of the city of Troy, the power to assess the expense of this improvement upon the lots abutting on the street. Such a power is an infraction .of the provision of the Constitution, which forbids the taking of private property for public use without compensation. (Constitution, art. 1, § 6.) Where the public of a city or village receive the entire substantial benefit of a street improvement, and the lots along the street receive only a fanciful, imaginary, and, at the most, incidental benefit, the legislature cannot authorize the assessment of the expense upon the owners of property along the street. Assessing the expense of public improvements upon parties who receive no corresponding benefit, is a violation of the provision of the Constitution, that private property shall not be taken for public use without just compensation. {In the Matter of Oanal street, 11 Wend., 154; Oanal Bank of Albany v. Mayor of Albany, 9 id., 244; Hammett v. Philadelphia, 65 Penn., 146; Matter of Washington Avenue, 69 id., 352.)

      B. A. Parmenter, for the respondents.
   BoARDMAN, J.:

By 1 Laws of New York, 1872, chapter 129, title 4, section 1, page 309, the c.ommon council of the city of Troy is given power to cause the streets of said city to be paved, and from time to time to be repaved. “ The expense of all new work and improvements and alterations, not in the nature of ordinary repairs, shall be assessed and be a lien upon the property benefited, when completed in sections or as a whole, and so certified to the comptroller by the local assessors.” Under this act, the plaintiff was assessed for repaving Broadway in front of his own premises. About twenty years before, the street had been paved with cobble-stone, and assessed upon the adjoining property. This pavement being out of order along the greater part of the street, it was ordered repaved with granite blocks, and for such repave-, ment plaintiff was assessed for the portion in front of his premises.

The only question presented is this : Had the city the power to order such repavement, and assess the adjoining premises for the expenses thereof, as benefits ?

The language of the act is too plain to leave a doubt of the legislative intent. The paving of the- street with granite in lieu of cobble-stone is in no- proper sense an ordinary repair, or repair of any kind. It is wholly a new pavement of new material. The old pavement is discarded and abandoned. We are not called upon to say whether such legislation is wise or just. All we can do is, to ascertain the legislative intent and carry it into effect,'unless it violates the fundamental .law as contained in the Constitution.

It is claimed, by the plaintiff, that when the benefit is to be exclusively enjoyed by the public, the legislature cannot lawfully impose the expense of an'improvement upon individuals, and that this is such a case. In other words, it is claimed that this is an exercise .of the right of eminent domain, by which the plaintiff’s property, in the shape of money, is taken for the public use. As to the first assessment for paving the street with cobble-stone, it is, and must be conceded to be, an ordinai-y exercise of the power of taxation. (People v. Mayor, etc., of Brooklyn, 4 N. Y., 419.) Rugg-les, J., shows very clearly why the exercise of such a power is not the exercise of the right of eminent domain. I do not see any essential difference between the first paving of a street and its repaving after a long interval of time. In each case the greatest benefit is derived therefrom by the general public, and not by the individual assessed. Certainly there is no such wide difference between the circumstances surrounding the orignal paving and those attending the repaving, as could lead to the conclusion that the former was constitutional, legal and proper, while the latter was a violation of the Constitution, illegal and unjust. The two cases present only a question of degrees of benefit. No distinction arising out of legal principles can exist. The right to repave by means of assessment is recognized in The Matter of Astor (53 N. Y., 617). The charter of the city expressly gives a continuing power to repave. The necessity or expediency of its exercise is controlled by the municipality, and not by the courts. (Dillon on Oorp., §§ 543, 619, and cases there cited; In Matter of Lewis, 51 Barb., 82.) The reasoning in the prevailing opinion in Hammett v. Philadelphia (65 Penn. St., 146) would sustain the theory of the appellant in this ease. But I think the reasoning is in conflict with the authorities in this State. Besides, the case was finally decided upon the ground that the act thus construed authorized special taxation for general purposes, and not for a local object.

I conclude that the city of Troy had the power, in the discretion of the common council, to repave Broadway, and to assess the plaintiff for benefits thereby bestowed, or supposed to be conferred, upon him; that such assessment is a species of taxation not covered by the clause of the Constitution, forbidding the taking of private property for public uses without just compensation (Howell v. City of Buffalo, 37 N. Y., 267); and that the complaint of the plaintiff, seeking to enjoin the collection of such assessment, was properly dismissed.

The judgment is therefore affirmed, with costs.

LeabNED, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


author: BoaedmaN, J.:

text:
    FRANKLIN V. HEWITT and EDGAR T. BRACKETT, as Assignees of JOHN CAMPBELL and JAMES C. SHAW, Bankrupts, Respondents, v. GEORGE NORTHUP and JOHN CAMPBELL, Appellants.

      Banleruptcy — mortgage given within four months of — pursuant to previous agreement— Respective rights of individual, and firm creditors.

    This action was brought by the assignees in bankruptcy of the firm of Campbell & Shaw to set aside, as fraudulent under the bankrupt act, a mortgage given by Campbell upon his individual property to the defendant Northup. The mortgage was given for an individual indebtedness of Campbell, for money loaned to him by Northup prior to April, 1874, upon the parol agreement that a mortgage should be given to secure the same upon the request of ÍTorthup. The individual property of Campbell exceeded in value his individual debts, The mortgage was given August 11, and the petition in bankruptcy filed September 10,1874.
    Between these two dates judgments for large __ amounts were obtained against the firm. Sdd, that under well settled principles of equity and the provisions of the bankrupt act, Northup was entitled to be paid out of the individual property of Campbell in preference to the firm creditors', and that th" mere conversion of his equitable lien upon the individual property into a legal lien, by the giving of the mortgage, did not confer upon Northup any preference over the firm creditors forbidden by the bankrupt act.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.

      Batoheller ds Bill, for the appellants.

      A. Pond, for the respondents.
   BoaedmaN, J.:

Plaintiffs are assignees in bankruptcy of Campbell & Shaw ; the petition of bankruptcy was filed September 10,1874; the insolvency was of the partnership of Campbell & Shaw; Campbell, however, had individual property in excess of his individual debts. On the 10th of August, 1874, Campbell executed a mortgage of $2,000 on his individual property, to secure an individual debt to the defendant Northup, which was recorded; this mortgage was given in pursuance of a parol contract, that it should be given when Northup asked for it. The indebtedness of Campbell to Northup was for money lent by the latter to the former, prior to April, 1874, and for some interest accrued thereon; no doubt exists of the honesty of such indebtedness; on taking the mortgage, Northup gave up to Campbell his notes, given for the lent money. Between the 10th of August and 10th of September, 1874, creditors of the firm of Campbell & Shaw obtained judgments for large amounts against the firm, which judgments were duly docketed, and became a lien upon the individual real estate of said Campbell subsequent to said mortgage. The plaintiff, having been appointed assignee in bankruptcy of said Campbell & Shaw, now brings this action to set aside said mortgage as a fraudulent transfer or incumbrance of the property of said Campbell, within four months before the filing of the petition; the decision of the Special Term sustains the plaintiff’s claim,. and sets aside the defendant Northup’s mortgage as against the plaintiffs. The result of such a judgment, if sustained, will be to give the judgment creditors of Campbell & Shaw, for partnership debts, the first lien upon the individual real estate of Campbell, one of the partners ; it also seems to follow as a legal consequence, under section 5021 of the United States Revised Statutes (page 976), that Northup, although an honest creditor of Campbell, will not be allowed to prove his debt in bankruptcy. These are serious consequences ; are they such as justly flow from the transaction ? To determine these questions, we must ascertain the relations of the several parties towards each other and their relative rights. I do not consider the question of plaintiff’s right to bring this action in a State court,-which may be doubted.

By the well settled principles of equity, Northup, being an individual creditor of Campbell, was entitled to payment of the debt out of his individual property in preference to the creditors of the partnership firm of Campbell & Shaw. (Wilder v. Keeler; 3 Paige, 167; Payne v. Matthews, 6 id., 19; In re Foot, 12 Bank. Reg., 337.)

This distinction between the rights of partnership debtors and individual debtors is preserved in the bankrupt law (U. S. Stat., § 5121), whereby the same rule must be applied in the marshaling of assets and in payment of debts.

Under these principles it is plain that Northup had an equitable lien upon Campbell’s separate estate, in preference to the general creditors of Campbell & Shaw. The mortgage given by Campbell to Northup created a legal lien in place of such equitable lien, and thereby preserved his preference over the legal lien by judgment acquired by the firm creditors prior to bankruptcy proceedings. The relations between the individual and firm creditors were not changed by giving the mortgage'; the mortgage, when given, gave to Northup no preference which he did not already possess; the firm creditors, therefore, lost nothing to which they were entitled; hence it follows that no preference was given to any creditor of Campbell; without a preference given, there could be no fraudulent intent to defeat or delay the operation of the bankrupt act, under the seventh subdivision*of section 5021, United States Revised Statutes.

These views are confirmed by several adjudged cases. In Bernhisel v. Firman (22 Wall., 170-178) it was held that a new mortgage, given within four months before bankruptcy proceedings, in lieu of a prior mortgage which was thereupon satisfied, is not open to attack under the bankrupt law as an illegal preference; the learned judge, quoting from Starr v. Ellis (6 Johns. Ch., 393), says: “ It is a rule in equity that an incumbrance shall be kept alive, or considered extinguished, as shall most advance the justice of the case.” To the same effect is Sawyer v. Turpin (1 Otto, 114). It was there held that a chattel mortgage, given in lieu of a prior bill of sale without possession of the property, could not be impeached as a fraudulent preference under the bankrupt act, though given within four months before bankruptcy. The judge says: “ It is too well settled to require discussion, that an exchange of securities within the four months is not a fraudulent preference within the meaning of the bankrupt law, even when the debtor and creditor know that the latter was insolvent, if the security given up is a valid one when the exchange is made, and if it be undoubtedly of equal value with the security substituted for it.” There are many other cases to the same effect. (Cook v. Tullis, 18 Wall, 332; Clark v. Iselin, 21 id., 360; Watson v. Taylor, id., 378; Montgomery v. Bucyrus Machine Works, 2 Otto, 257; Nat. Bk. of Pittsburg v. Brady’s Bend Co., 5 Bank. Reg., 492; In re Weaver, 9 id., 132.)

There is another principle which in my view tends to confirm the result indicated. The assignee takes his estate subject to every equitable claim existing against it on the part of third persons; ordinarily the assignee stands in no better position than the assignor; hence it has been held that a contract for a mortgage or sale of real estate is preferred to judgments recovered after the contract; equity treats the agreement for a mortgage as a specific lien on the land. (In the Matter of Howe, 1 Paige, 125.) So it is held, that “if a man mortgages by a defective conveyance and there are subsequent creditors whose debts did not originally affect the land, equity will supply such defective conveyance against such subsequent incumbrancers, who acquired a legal title afterwards, for since the subsequent”creditors did not originally take the lands for their security, nor had in view an intention to affect them, when afterwards tbe lands are affected and they come in under the very person that is obliged, in conscience, to make the defective security good, they stand in his place, and shall be postponed to such defective conveyance.” (Burgh v. Francis, 1 Eq. Cas. Ab., 320.) To the same effect is Burn v. Burn (3 Vesey, Jr., 582); Finch v. Earl of Winchelsea (1 Peere Williams, 282); and other authorities cited by chancellor in Matter of Howe (1 Paige, 129, 130).

It is not necessary to hold that under our bankrupt law a debtor may give preference to one creditor over other creditors of the same degree, by the aid of a secret equity, or by virtue of an antecedent promise. (In re Graham v. Stark, 3 Bank. Reg., 357 [large ed., 93].) Indeed, as between such creditors, there should be no prevailing equity; the object and intent of the law is to prevent any such preference, and to compel a pro rata distribution of the assets of the bankrupt equally among creditors of the same class ; but we have seen that Northup is not a creditor of the same class with the judgment creditors; he is entitled to be first paid out of Campbell’s individual property, and it is neither equitable nor just that creditors of the firm, by judgment, should be preferred to him in hostility to the law applicable to such cases, and in evident violation of the spirit and intent of the bankrupt law ; especially is this true when such judgments are subsequent to the equitable, if not legal lien of Northup’s mortgage, and the rights of judgment creditors are in no respect worse than as by law is provided for them.

If these conclusions are not correct, Northup intended a fraud upon the bankrupt law. While endeavoring in good faith to secure his debt out of property which the law says shall first be applied to^ that purpose, he must have offended against that law, and as a consequence he shall not be allowed to prove his debt in bankruptcy, or receive any share of the bankrupt’s estate. I think such consequences cannot, in justice and good conscience, result from the facts in this case.

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

LearNed, P. J., concurs.

Present — LearNed, P. J., Bocees and BoakdmaN, JJ.

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