author: Gilbert, J.:

text:
    JAMES S. MARSH, Respondent, v. JOHN A. DODGE and others, Appellants.

      Patent — licensee of— when cannot set up invalidity of patent.

    The defendants agreed to pay to the plaintiff, the owner of a patent for the manufacture of raltes, ten dollars for each rake that should be made or sold, or disposed of by them, or by their authority or procurement; subsequently they sold to an incorporated company all their partnership effects, including all the rakes remaining unsold, and a number then in process of manufacture. Held, that the defendants were chargeable with the royalty upon each of the unfinished rakes so transferred.
    A licensee must notify the owner of the patent of his renunciation of the license, before he can repudiate his obligations under it.
    Upon the trial defendants objected to the admission in evidence of the patent, on the ground that it was not properly authenticated. Held, that proof of the patent was unnecessary, as the defendants were estopped from denying either its existence or validity.

    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after judgment entered in favor of the plaintiff upon the verdict of a jury.
    This case has already been before the General Term, and is reported in 5 Lansing, 541.

      The complaint alleged that before and during the years 1865 and 1866, the said plaintiff was the owner as patentee of certain letters patent of the United States, securing certain improvements in harvesting machines, commonly known as “ Marsh’s self-rake.” That on or about the 2d day of September, 1865, the said plaintiff, being such owner as aforesaid of said patented improvements in said letters patent specified and set forth, and the said defendants, by their said firm name of “ Dodge, Stevenson & Co.,” executed in duplicate, and by delivery interchanged the license, in and by which the said plaintiff licensed to the said defendants, as such copartners as aforesaid, the right and privilege within certain territories therein set forth, of making, using, and vending to others to be used, the improvements in said letters patent specified; in consideration whereof the said defendants, as such copartners, thereby agreed to pay to said plaintiff a royalty or patent fee of ten dollars for each and every Marsh’s self-rake that should be made and sold or disposed of by the said defendants, or by their authority or procurement, during the existence of said patents. That since the execution of said license, the said defendants have not rendered a true and faithful, or any, account of the said self-rakes made by them or by their authority or procurement, or paid the fees stipulated in said license.
    The defendants, in their answer, alleged that on or about the 2d day of September, 1865, they intending to manufacture rakes of a certain construction, form and kind, to be attached to and sold with certain reaping machines which said defendants were then manufacturing, the said plaintiff, for the purpose and with intent of inducing the defendants to make and enter into the contract or license set forth in said complaint, and with the intent to cheat and defraud the defendants, falsely and fraudulently represented and stated to the defendants that he held and possessed certain letters patent which secured to him, the said plaintiff, the sole and exclusive right and title to manufacture, use and vend said rakes of the construction and kind defendants then proposed to make and vend, and that such patent rights therefor were in all respects good and valid patents; that his said patents embraced and included the entire, sole and exclusive right to make, use and vend all self-rakes to be, or which could be attached to any reaping machine: and that the said self-rake, with all the rights of the invention thereof, and the right to use or make or vend the same in the particular form, manner and material then proposed to be made and sold by defendants, were all embraced in his said patents, and belonged to him. That the defendants, relying upon said representations and statements, made and entered into the contract or license named in the said complaint, and accepted the same. And defendants alleged, that in truth and fact, the said plaintiff did not own or possess any letters patent which secured to him the sole or exclusive right or title to make, use or vend said self-rake, or any self-rake of the structure or kind the defendants then proposed to make, use and vend, and such patent rights therefor were not good, or valid, or genuine, nor were they the inventions of the plaintiff, nor did his patent right embrace or include the entire, or sole, or exclusive right to make, use or vend any or all self-rakes to be, or which could be attached to any reaping machine.

      Rollin Tracey, for the plaintiff.

      H. V. Howland, for the defendants.

       See Hawks v. Swett, ante, p. 7.

   Gilbert, J.:

This action was brought to recover a royalty accruing upon the manufacture and sale of patented rakes, under an agreement made by the defendants as copartners with the patentee, who is the plaintiff. The agreement is in writing, under the hands and seals of the plaintiff and defendants respectively. It contains a recital of the fact that the letters patent had been issued to the plaintiff j and an agreement on the part of the defendants to pay the plaintiff ten dollars upon each of the rakes that should be made or sold, or disposed of by them, or by their authority or procurement, during the period for which the license continued. The plaintiff’s claim was limited by the complaint to rakes manufactured prior to January 1, 1867. It appeared that the defendants had ceased to manufacture rakes after March 10, 1866, and had been succeeded in that business by an incorporated company, to which they had sold and transferred all their partnership effects, including all the rakes manufactured by them prior to that time, and remaining unsold, and including also a large number of rakes in process of manufacture. It appeared, also, that the defendants, before the transfer to the company, had sent some of the completed rakes to their agents in various parts of the country to be sold, and that purchasers from such agents had the privilege of returning the rakes bought, if they should not be suited by them.

Much of the time spent in the trial was devoted to the examination of witnesses upon the question, whether the rakes actually manufactured were in all respects such as were specified in the plaintiff’s patents. This inquiry ought to have been excluded, because the defense which that kind of evidence tended to establish had not been pleaded. It was, however, indulged by the court, without objection, and the questions arising upon it were fairly and correctly submitted to the jury. In the course of this inquiry, the defendants offered in evidence a patent granted to the defendant Dodge, bearing date August 20, 1867, for a rake similar to that invented by the plaintiff. It was excluded, and the defendant excepted. We think this exception, as well as those taken to the judge’s charge on the subject involved in this evidence, were unavailing for this reason, if for no other, namely, that the evidence was not material to the issue, and, in respect to the rejection of Mr. Dodge’s patent, the plaintiff’s claim did not embrace rakes that were manufactured after that patent was issued, so that, in any point of view, the evidence was irrelevant. Moreover, the defendants were estopped to deny that the rakes manufactured were made under the plaintiff’s license, so long as they retained the license itself. They were at liberty to relinquish it at any time, and they were bound to do so, if they intended to deprive the plaintiff of his royalty. Good faith requires that a licensee shall give to the owner of the patent notice of his renunciation of the license, so that the privilege may be sold to others, before he can be permitted to repudiate his obligations under it.

The agreement of the plaintiff to give a drawback of three dollars, was not admissible in evidence. It was not a part of the license, although it was made on the same day, but it referred to another and independent transaction. If the defendants wished to avail themselves of that agreement, they should have pleaded it, and have set up their counter-claim under it. Hot having done so, it was not available to them as a defense.

An exception was taken by the defendants to the admission of the plaintiff’s patents in evidence, on the ground that they were not properly authenticated. We are inclined to think this exception was not good, but we do not deem it worth while to discuss the subject, for the reason that proof of the patents was not necessary. We think the defendants were estopped to deny either the existence or the validity of the patents. They had under the license all that they bargained for. They cannot, therefore, be permitted to say that the rakes which they made or caused to be made, were not made under the license, because the plaintiff had not the patents recited in it, or because such patents were invalid, any more than a tenant can deny that he occupied under the lease which he took from his landlord, Many other exceptions were taken by the appellants to the admission and rejection of evidence. We have examined all of them, and found no error.

In submitting the case to the jury, the court restricted the liability of the defendants to the number of rakes actually manufactured by them in conformity with the improvement specified in the plaintiff’s patents, and which had been actually sold. But he treated the transfer of the defendants to the corporation as a sale of the completed rakes to them, and the sale by the corporation of the unfinished rakes, transferred to them by the defendants, and which the corporation afterward finished and sold on their own account, as a sale made by the authority or procurement of the defendants, within the terms of the license. We think that principle is correct. The sale to the corporation was something more than a mere transfer of the materials of which the rakes were composed. It gave to the rakes a quality of vendibility, which they would not otherwise have possessed in the hands of the corporation. Both the corporation and the defendants must have intended that the former should acquire the right to sell them, without becoming liable to the plaintiff for an infringement of his patents. The defendants parted with all their title to them, and, therefore, could not sell them without a repurchase; and no liability would attach to the corporation, because they never agreed to pay a royalty. The consequence would be, that if the transfer to the corporation should not be regarded as a sale within the meaning of the license, the plaintiff would, by a species of legerdemain, be deprived of his royalty altogether. The same principle ought to govern the transfer of the unfinished rakes. The sale of them by the corporation would be protected by the license, because they were sold by the licensee in an unfinished state to the corporation, for the purpose of being finished and sent into the market and sold. Such a sale could not be treated otherwise than as one made by the authority and procurement of the defendants. They should therefore pay the royalty on them.

A case similar to this was recently decided by the Commission of Appeals in accordance with the views expressed, and we think a contrary principle would be incompatible with the rights and obligations of the parties.

An exception was taken to an expression in the judge’s charge, to the effect that rakes which the defendants had sent to their agents, constituted a sale, and the plaintiff was entitled to a royalty upon them. Taken by itself, disconnected from the rest of the charge, this would be erroneous. But when the whole charge is considered, the instructions on this subject were unexceptionable. The rakes in the hands of agents, passed in the sale to the corporation, and the jury were told very plainly, that the defendants had a right to sell them conditionally, and if any of them were returned to the defendants or to the corporation, by reason of their failure to conform to the condition on which they had been sold, the defendants were not liable for the royalty upon the rakes so returned. This was more favorable than the defendants had a right to ask, for the rakes, when returned, would form part of the effects of the defendants which were the subject of the sale made by them to the corporation, and consequently the plaintiff would be entitled to the royalty by virtue of that sale.

The criticism that the complaint does not embrace sales made by the authority or procurement of the defendants, but only such as were made by them personally, is too critical.

Upon the whole case, therefore, we think the judgment should be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

       Code, § 149, 150, and Wait’s notes.

       Lawes v. Purser, 8 El. & Bl., 930; Baird v. Neilson, 8 Cl. & Fin., 726; Noton v. Brooks, 7 H. & N., 499; Crossley v. Dixon, 10 H. L. Cas., 293; 1 Greenl. Ev., §§ 22-27.

       Wilder v. Stearns, 48 N. Y., 656.


source: Caselaw Access Project

license: Public Domain

text:
    SAMUEL D. COLIE, Appellant, v. JOHN JAMISON, Respondent.

      Bankruptcy — effect of, on title of bankrupt to real estate—Bquitdble title re-naming in bankrupt after conveyance to assignee — Basement.

    The defendant conveyed to the plaintiff an alley, reserving to himself the right to use the same, in common with the plaintiff, so long as he should -continue to own the adjoining lot; subsequently defendant was, on his own ajrplication, - declared a bankrupt, and conveyed all his property to his assignee, who afteiv ward reconveyed the same to him, the proceedings in bankruptcy having been discontinued. Held, that the defendant remained the actual owner of the property, in equity, notwithstanding his bankruptcy and the conveyance to the assignee, and that his easement in the alley was not terminated thereby.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    In March, 1867, the defendant and Edward Gallagher conveyed to the plaintiff an alley way, the deed stating that it was “ to be allowed to be used by the said parties of the first part hereto in common with the party of the second part hereto, as and for the purposes of a private alley, so long as said parties of the first part shall continue to own the remainder of said lot No. 6.”
    Before this action was commenced, both defendant and Gallagher had been adjudicated bankrupt on their voluntary petition, and they had duly assigned and conveyed all their property to the assignee, who had subsequently reconveyed to the defendant his property, the proceedings in bankruptcy against him having been discontinued. The plaintiff, claiming that by the assignment the defendant ceased to be the owner of the lot, built a fence across the alley, which was cut down by the defendant. Three other fences were built, all of which were cut down. This action was brought to restrain the defendant from cutting down the fences, or entering upon the alley.

      George Wadsworth, for the appellant.

      John B. Greene, for the respondent.
   Gilbert, J.:

The plaintiff asks a decree to forfeit a valuable right of the defendant, on sheer technical grounds. It will be vain for him to expect that a court of equity can forget its maxims and traditions, and be astute in searching for a way to afford him relief. He is entitled to prevail only on establishing his claim strictissimi juris.

The question is, whether the proceeding in bankruptcy terminated the defendant’s ownership of the lot adjoining the alley; and we are of opinion that it did not. The view of the subject taken by the learned judge at Special Term, in substance accords with our own. The proceeding in the bankruptcy court having been duly discontinued before any actual disposition was made of the defendant’s property, that court has no further jurisdiction of the matter, and the rights of the parties must be determined by our own laws.

Ho doubt the title to all the property of the defendant, including his right in the alley, vested in the assignee in bankruptcy by virtue of the bankrupt act, and if this fact destroyed the defendant’s easement for a moment, it is gone forever. We think it did not have that effect. The transfer to the assignee was merely nominal and official. He took no beneficial interest whatever. The title was vested in him as an officer of the court, for the mere purpose of administration under the order and direction of the court. The transaction amounted to nothing more than a trust, the particular objects of the trust being limited and defined by the provisions of the bankrupt act, and the general purpose being to convert the defendant’s property into money, and with the proceeds to pay his debts. The assignee in bankruptcy was only a nominal trustee, and was in fact an agent appointed by law to accomplish that purpose. In sr.eli a case a resulting trust arises by implication of Jaw, in favor of the bankrupt, which affects all the property undisposed of in the due execution of the trust; and as to .all such property, the actual ownership in equity remains in the bankrupt. It is expressly provided by statute, that when a trust is created, which vests the whole estate in law and equity in the trustees, such fact shall not prevent the persons creating the trust from granting or devising the trust estate subject to the execution of the trust, and that every such grantee or devisee shall have a legal estate in the lands, as against all persons except the trustees and those lawfully claiming under them. Before our statute of trusts, a cestui que trust might assign or devise his equitable estate; and the receipt of rents and profits was regarded as equivalent to legal seizin thereof. While under our statute a cestui que trust has no estate, legal or equitable, in the lands, but only a right to enforce the trust in equity, yet this principle applies only to those persons for whose benefit the trust was created. The power of disposition given by sections 60 and 61 to the creator of the trust, are marked indicia of ownership. We think, also, that the defendant ought to be deemed the creator of the trust in this case, within the meaning of section 61, for it resulted solely from his petition in bankruptcy. It is also provided by statute, that when the purposes for which an express trust shall have been created shall have ceased, the estate of the trustee shall cease also. No reconveyance is necessary; but, upon the cessation of the trust, the donor goes or remains in as of his former estate. Keeping these principles in view, and looking back at the history of the defendant’s proceeding in bankruptcy, the trust resembles an incumbrance upon, rather than an estate in the land.

It appears that the defendant continued in possession of the trust property during the pendency of the proceeding in bankruptcy. We are of opinion that, according to a just and reasonable interpretation of the deed containing the reservation of the alley, the defendant continued to own his-lot adjoining the same, in the sense in which that term was used in the deed, notwithstanding the proceedings in bankruptcy.

This conclusion being decisive of the case, we need not consider the other questions.

The judgment should be affirmed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed, with costs.

       Adams Eq., 31.

       1 R. S., 729, §§ 60, 61.

         Lewin on Trusts, chap. 33.

       Id.

       Briggs v. Davis, 21 N. Y., 574.

       1 R. S., 730, § 67.


text:
    KENDRICK BLANCHARD, Appellant, v. LUCRETIA BLANCHARD and others, Respondents.

      Will—powen' of sale contained in, not to be exercised during continuance of two limes in being — when valid — Suspension of power of alienation.

    Defendant’s testator, by his will, devised to his wife and two youngest children all his personal property, and the use of a farm until June 29,1890, and directed his executor, within two years from that date, to sell the farm and divide the proceeds among certain persons named in the will. Held (1), that the widow and children took an estate for years in the farm, and that the remainder therein vested in the residuary devisees named in the will, subject to the execution of the power of sale; (2), that the power vested in the executor, being a mere naked power of sale, did not suspend the power of alienation, and was valid.

      Beekman v. Bonsor (23 N. Y., 298) limited.
    The will provided that “the personal property and use of said farm to be under the exclusive control and management of my wife, without interference by any person whatever.” Held, that á valid power in trust was thereby created in the wife.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.
    This action was brought by the plaintiff for a partition of the premises described in the complaint, upon the ground that the apparent devise thereof by Reuben Blanchard, deceased, was void.
    The testator died on the 10th day of May, 1873, leaving a will of which the following are the material portions :

      “ Second. I give and bequeath to my beloved wife, Lucretia, and my two youngest children, Emma Jane Blanchard arid Reuben Earle Blanchard, all of my personal property, also the use of my home farm where I now reside, on lot number fifty-five, in the town of Victory, county of Cayuga, consisting of about 209 acres of land, until the 29th day of June, 1890 — the personal property and use of said farm to be under the exclusive control and management of my wife, without interference by any person whatever, which is to be received by her in lieu of dower.”
    “ Fourth. I order and direct that within two years after, the 29th day of June, 1890, my said executor shall sell my home farm where I now reside, on lot number fifty-five, in the town of Victory, consisting of about 209 acres of land.” * * * The testator then directed the proceeds arising from the sale to be paid over to certain persons named by him.
    “ Lastly. I order and direct that all of the rest and residue and remainder of my property not hereinbefore disposed of, be divided among my children and grandchildren hereinbefore named, in proportion to the several sums of money hereinbefore bequeathed to them.”
    The justice before whom the case was tried, held that the power of sale given to the executor worked an illegal suspension of the power of alienation, and was void.
   Gilbert, J.:

We agree that the judgment below should be affirmed, but we cannot concur with the learned judge, in the exposition which he gave to the will. If the reasons for his judgment appeared therein, this general declaration might suffice; but as they do not, it is.proper, in order to prevent future litigation, to give.very briefly our views respecting the legal effect of the will. We are of opinion that all the testator’s gifts are valid. The interest in the home farm,” devised to his wife and two minor children by the second clause, is an estate for years, and is denominated in law a chattel real. The distinction that once prevailed between the devise of. the use of a chattel interest, and the devise of such interest itself, is now practically exploded. Such an estate is treated as personal property in every respect. In case of the' death of the owner, it goes to the executor, and not to the heir at law. These devisees, therefore, took the gift to them as tenants in common, notwithstanding it is one of personal property; for it is provided by statute, that every estate devised to one or more persons shall be a tenancy in common, unless expressly declared to be in joint tenancy, and that provision embraces all estates in land, whatever may be the duration of them. The remark of Surrogate Bkadfokd on this subject, in Putnam v. Putnam, was too broad.

We think the words, “the personal property and the use of the farm, to be under the exclusive control and management of my wife,” are sufficient to create a valid power in trust. No precise form of words is necessary to create such a power. Any words, however informal, which clearly indicate an intention to give a power, are sufficient for that purpose; and it may be created to do any act which the grantor himself might lawfully perform. It is not a trust, for two reasons: First, because the statute on this subject requires the legal estate to be vested in the trustee^ in order to create a valid trust; and, second, it does not authorize such a trust. But the object is protected as a power in trust, by the fifty-eighth section of the same statute.

The learned judge at Special Term expressed the opinion that the power of sale of the" “ home farm ” given to the executor,- was void for the reason that the postponement of the execution thereof worked an illegal suspension of the power of alienation. That is a very important practical question. Powers of sale, to be executed after the lapse of a period which may extend beyond two lives in being, have been commonly inserted in wills of real estate, and if it should turn out that such powers are illegal, many wills will be invalidated. We are of opinion that the power in this case, being a naked power of sale, did not suspend the power of alienation. It is quite manifest that no estate or interest was devised to the executor. The whole estate of the testator, excepting the term given to the wife and minor children, would have descended, immediately upon his death, to, and vested in his heirs, but for the last clause in the will. By that clause it was devised to his children and grandchildren, as residuary devisees, subject to the term devised to the widow and minor children, and subject also to the execution of the power after the termination of their estate for years. The power conferred upon the executor was no more than a hare authority to sell the lands, an act expressly authorized by the statute of powers, whether the act is tó be done in the lifetime of the grantor, or after his death. There is not to he found in that statute any restriction respecting the time within which a power must be executed, although it does provide a limitation of the period during which the absolute right of alienation may be suspended by an instrument in execution of a power. A power of sale is not an estate or interest in land. The provisions of the statute on this subject are explicit. It requires an absolute power of disposition, and defines such a power to be one by means of which the grantee is enabled, in his lifetime, to dispose of the entire fee for his own benefit. In such a case the grantee takes a fee, subject to any future estate limited thereon, but absolute in respect to creditors and purchasers. Even a devise of real estate, itself, to an executor to sell, without an authority to receive the rents and profits, vests no estate in him. An instrument in execution of a power is not regarded as an alienation by the grantee, but as the act of the grantor. Before execution, the power is a lien or charge upon the lands, and has no greater effect upon the interests of heirs or devisees than a mortgage made by the testator, payable at the time fixed for the execution of the power would have had. No one would question the validity of a mortgage given by a testator to secure the payment of a sum of money twenty years after his death, because it contained the usual power of sale. No doubt such a power in either case obstructs the sale or other disposition of lands by the owner, but not by reason of the time limited for the exercise of the power. It would ordinarily have the same effect if no restriction as to time were imposed; hut the absolute right of alienation of the fee is not affected thereby. In the case before-us, the residuary devisees took an estate in fee, which, notwithstanding the incumbrance of the power, is neither defeasible nor conditional, and they may alienate it at pleasure. A conveyance from them and the devisees of the term would pass the whole estate. The testator might have made the devise to the residuary devisees in a form which would have given them an estate lasting only until the execution of the power, as there will be a short interval between the end of the term given to the widow and minor children, and the time within which the power must be executed. There being more than two residuary devisees, such a devise would have been illegal. The practical result of a devise of the fee incumbered by a power, may, in some cases, be the same; nevertheless, the latter is legal. The statute does not aim to do anything more than to prevent the inalienability of estates beyond the prescribed limit. It has not sought to limit the duration of a lien or incumbrance thereon. The only provisions on this subject are the fourteenth and fifteenth sections of the statute relating to the creation and division of estates. The fourteenth section avoids futwre estates, which suspend the power of alienation. It is manifest that this section does not embrace the power in this case, because that does not create a future, or any other estate. The fifteenth section avoids limitations and conditions only. Conditions ” and limitations ” are terms well understood in law, A power is neither one nor the other. And, as before intimated, the residuary devisees in .this case, who are the beneficiaries under the power, may at' once alienate all the estate they got under the will. They can alienate the fee in the land, subject to the power, and they may sell their respective shares in the proceeds of the sale which shall be made in execution of the power. The statute on this subject expressly provides that limitations of future or contingent interests in personal property, shall be subject to the rules prescribed in relation to future estates in lands, and those rules authorize the alienation of expectant estates, How then, and of what, is there a suspension of the power of alienation ? We are not aware of any adjudication in conflict with the views on this subject, which we have now expressed. In Beekman v. Bonsor, Comstock, J., remarked, that the power in trust in that case would have been a lawful one, if the postponement of its execution for an absolute period of time did not suspend the power of alienation in a manner which the statute did not permit. This however was obiter dictum, and is hardly reconcilable with the decision of the same judge, in Downing v. Marshall, for, in the latter case, a power in trust, the execution of which was postponed until after two lives in being, was upheld.

Whether we regard the power of sale, therefore, as intended to effect an out and out conversion of the realty into personalty, or as a power in trust of real estate, it is in our opinion valid.

There can be no question as to the validity of the direction contained in the power, respecting the disposition of the proceeds of the sale.

We have assumed that the birth of the posthumous child was not under circumstances to work a revocation of the will, according to the provision of the Revised Statutes on that subject,

For the reasons stated, the judgment must be affirmed.

Judgment affirmed, with costs.

       1 R. S., 722, § 5; 1 Wash. Real Prop., 310.

       4 Kent Com., 269; Fearne on Rem., 407.

         3 Kent Com., 342.

       1 R. S., 727, § 44.

       4 Brad., 309.

       1 R. S., 732, § 74.

       1 R. S., 728, §§ 49, 55; id., 729, § 58 ; Downing v. Marshall, 23 N. Y., 375 et seq.

       1R. S., 729, § 59.

       1 R. S., 732, § 74.

         1 R. S., 737, § 128.

       1 R. S., 732, 733, §§ 82-85.

       1 R. S., 729, § 56; Germond v. Jones, 2 Hill, 573; Downing v. Marshall, 23 N. Y., 366.

       R. S., 735, § 107.

      1 R. S., 723,

       R. S., 773, § 2; id., 722, § 9, 725, § 35 ; Lawrence v. Bayard, 7 Paige, 76; Sheriden v. House, 4 Keyes, 588.

       23 N. Y., 317.

       23 N. Y., 366.

       Crittenden v. Fairchild, 41 N. Y., 289 ; Kinnier v. Rogers, 42 id., 531; Kane v. Gott, 24 Wend., 641.

       2 R. S., 64, § 43.


text:
    JOHN N. DORRIS, Receiver, etc., Plaintiff, v. EDWARD F. FRENCH, Defendant.

      Stockholder of corporation — when Hable for subscription for slock —fraud of directors — no defense to stockholder.

    The defendant with others signed an agreement to unite in the formation of a company, and to take a number of shares of stock therein specified; subsequently he, with others, signed a certificate of incorporation as required by the act of 1848. In an action brought by the receiver of the company to recover the amount due upon the shares subscribed for by the defendant, held (1), that the defendant was estopped from denying that the company was legally incorporated; (2), that he was liable for the number of shares subscribed for by him.

      Dorris v. Sweeney (64 Barb., 636) distinguished.
    The fact that the promoters of a corporation have purchased for it a patent right, of which they were the owners, at an exorbitant price, furnishes no defense to a stockholder in an action brought by the corporation to recover the amount due upon the stock held by him.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff.
    This action was brought to recover from the defendant the amount claimed to be due from him on certain shares of stock in The Buffalo Fruit Preserving Company.
    In the latter part of October, 1865, the defendant and others signed a paper whereby they agreed to unite in the formation of a company for the purpose of purchasing the exclusive right to make, use and vend Nyce’s patent for preserving fruit, the paper designating the number of shares to be subscribed for by each. Subsequently, the defendant and nine others executed and acknowledged the certificate of incorporation required by the act of 1848, authorizing the formation of corporations for manufacturing purposes. Subsequently the plaintiff was appointed receiver of the corporation, which had been dissolved for failing to exercise its privileges for one year. The defendant set up, as a defense, that he was not a stockholder ; that the company was never legally incorporated; and that his subscription was procured through fraud.

      G. A. Scroggs, for the plaintiff.
    The second exception, namely, “ that the plaintiff has failed to show that the defendant was a stockholder in said corporation,” is not well taken, because the plaintiff has shown that the defendant was a stockholder in said corporation. The defendant by subscribing the instrument, in which he agreed to unite with those who signed the same instrument, in forming an incorporate company, and mutually agreed with them to pay the amount set opposite his name, which is $3,000, to said company for stock therein, and the certificate of incorporation prescribed by the act providing for the organization of manufacturing and other companies, became a stockholder in said corporation, and liable to pay his subscription. (Stanton v. Wilson, 2 Hill, 153; Spear v. Crawford, 14 Wend., 20; Hamilton, etc., P. R. Co. v. Rice, 7 Barb., 157; Buffalo and N. Y. C. R. R. v. Dudley, 14 N. Y., 336; Lake Ontario, etc., R.

      Co. v. Mason, 16 id., 451; Rensselaer and W. P. R. Co. v. Barton, id., 457, note; Buffalo and P. R. Co. v. Hatch, 20 id., 157, per Grover, 161, close of opinion; Trustees, etc., v. Allen, 14 Mass., 172 ; Burr v. Wilcox, 22 N. Y., 551; Mechanics' Bank v. N. Y. R. Co., 13 id., 599, opinion of Judge Comstock, 627; Stewart v. Hamilton, 2 Denio, 417, opinion of chancellor ; Andrews v. Pontue, 24 Wend., 285 ; Poughkeepsie, etc., v. Griffin, 24 N. Y., 150 ; Angell & Ames on Corp. [9th ed.], §§ 517, 523.) The preliminary agreement signed by the defendant was authorized and valid. (Angell & Ames on Corp. [9th ed.], § 523; Stanton v. Wilson, 2 Hill, 153; The Buffalo, etc., v. Dudley, 14 N. Y., 336; Lake Ontario v. Mason, 16 id., 451; Buffalo and P. R. Co. v. Hatch, 20 id., 157, see Grover, close of opinion; Hamilton and P. R. Co. v. Rice, 7 Barb., 157.) The defendant cannot question the legal existence of the corporation, or the right it has to its franchises. (Code, § 430; The People v. Trustees of Geneva College, 5 Wend., 211-220; McFarlan v. The Triton Ins. Co., 4 Denio, 392-397; Eaton v. Aspinwall, 19 N. Y., 119; The People v. Utica Ins. Co., 15 Johns., 358; Methodist E. U. Church v. Picket, 19 N. Y., 482; Thompson v. N. Y. R. Co., 3 Sandf. Ch., 625; Buffalo, etc., R. Co. v. Cary, 26 N. Y., 75; Trustees of Vernon v. Hills, 5 Cow., 23-26 ; Schenectady and S. P. R. Co. v. Thatcher, 11 N. Y., 102-113.)

      H. E. Day, for the defendant.
   Gilbert, J.:

This case is unlike that of Dorris v. Sweeney, in this, namely, that the defendant subscribed and acknowledged the certificate of incorporation. The statute authorizing the formation of manufacturing companies, provides that the persons who shall have signed and acknowledged the certificate, and their successors, shall be a body politic and corporate. It requires that the aggregate amount of the capital stock of the company, and the number of shares of which it consists, shall be stated. But it does not require that the interest of the subscribers to the tiertificate, respectively, shall be set forth. That must, therefore, necessarily be fixed by some agreement separate from the certificate. Such an agreement, consummated by signing the certificate, amounts to the same thing as subscribing formal articles of association, preliminary to organizing a corporation. The agreement and the certificate constitute but one transaction, having a single object, namely, the formation of the corporation. It has long been held, and never, I believe, disputed, that the corporation, when formed, may enforce payment of the subscriptions to its capital stock against persons who subscribed its articles of association before the corporate body had a legal existence. It was with this rule of law in view, probably, that the legislature omitted any specific provision regulating the manner of becoming stockholders, while at the same time they authorized the capital stock to be paid in — one-half thereof within one year, and the other half within two years, and made the stockholders severally liable for the debts of the corporation, to an amount equal to the amount of stock held by them respectively, until the whole amount of capital stock should have been paid in, and authorized the corporation to demand from the stockholders, respectively, payment of their subscriptions, on pain of a forfeiture of their stock. It is very evident from these provisions, that the design of the legislature was to provide protection to creditors, by devolving personal liability on the stockholders, and to give to the corporation, for the indemnity of the latter, the power of coercing payment of subscriptions.. But neither of these objects could be accomplished, unless there were some means of ascertaining who had become stockholders, and the amount of stock held by them, besides the certificate of incorporation; for that might not show the names of all the stockholders, or the amount of stock held by any of them. These facts might be established by proof of payments on account of stock, and the taking of the usual stock certificates ; but that kind of proof would not be as satisfactory as the ordinary mode of subscribing which was adopted in this case. We are of opinion, therefore, that the original liability of the defendant as a subscriber to the stock was established. Stockholders are estopped to deny the lawful existence of corporations which they have helped to create.

These views would require us to direct a judgment in 'favor of the plaintiff. But there are other facts which demand consideration. Among the defenses pleaded, one was that some of the promoters of the company, who signed the certificate of incorporation and were named therein as trustees, were intrusted with the duty of purchasing the patent right, under which the business of the company was conducted; that they purchased it, in fact, of themselves and their associates, for the corporation, for the price of $50,000, whereas the real price was $16,000, and that the difference was divided between them and their associates. This, if true, was a gross fraud, and no proof of an actual intent to cheat, beside the matter itself, in such a case, is requisite to invalidate the transaction. The persons who undertook the duty of purchasing the patent, thereby became agents of the corporation for that purpose. The same principles are applicable to them, as govern the relation of trustee and cestui que trust. They were bound not to do anything which could place them in a position inconsistent with the interest of their principal. Agents are not permitted to become secret vendors of property which they are authorized to buy for their principals, or indeed to deal validly with their principals in any case, except where there is the most entire good faith and full disclosure of all facts and circumstances, and an absence of all undue influence, advantage or imposition. Nor will an agent, employed to purchase, be permitted, unless by plain and express consent of his principal, to make any profit out of the transaction. If those who made the purchase for $16,000 were at the time acting as projectors or promoters of the company, they can make no profit at the company’s expense by a purchase and resale, The injury occasioned' by the alleged fraud, however, was done to the corporation, and not to the defendant. It constitutes no defense to an action at law, brought by the corporation or its receiver, to recover his subscription to the capital stock. The only mode of making it available to the defendant would be by a bill in equity, in which the persons accused of the fraud, as well as the corporation, would be necessary parties. The learned judge, however, entertained the defense, and in submitting the case to the jury, charged them, “that the fact that the patent was owned by the promoters of the company at the time the defendant was induced to make his subscription, was not a sufficient defense, unless there was evidence that it was suppressed with intent to cheat and defraud.” This, we think, was erroneous, and, if the defense was before the court, the error was material.

We are also of opinion that the learned judge erred in refusing to submit to the jury the question, whether the company had not, with the assent of the defendant, issued the stock for which he subscribed, to other parties, who had received the same and paid the company for it. There is evidence in the case -which would have warranted the jury in finding that fact in favor of the defendant ; and we have no doubt that if so found, it would constitute a complete bar to this action.

The motion for a new trial must be granted, with costs to abide the event.

Present — Mullin, P. J., Smith and Gilbert, JJ.

New trial granted, costs to abide event.

      64 Barb., 636.

       3 Edm. Stat., 733.

      Buff., etc., R. R. v. Hatch, 20 N. Y., 161; Burr v. Wilcox, 22 id., 551; Strong v. Wheaton, 38 Barb., 622; Ang. & A. Corp., § 517 et seq.

       Sec. 10.

         Sec. 6.

       Story Eq. Jur., § 315; Dally v. Wonham, 33 Beav., 154; Bentley v. Craven, 18 id., 75; Tyrrell v. Bank of London, 10 H.L. Cas., 26; Beck v. Kantorowitz, 3 K. & J., 230.

       Foss v. Harbottle, 2 Hare, 489; Densmore Oil Co. v. Densmore, 14 P. F. Smith, 49; McElhenny’s Appeal, 11 id., 188.


text:
    GEORGE O. TOWNSEND, Appellant, v. ROBERT BISSELL and ABEL DAVIS, Respondents.

      Basement—Bight of way — Adverse use—when presumed— Contract of sate—tide of vendee in, superior to that of a grantee with notice.

    When the owners of adjoining lots make a way between them, each setting off an equal portion of land for that purpose, and they and their grantees continue to use it in common as a way for a period of twenty years, the inference is that such use was under a" claim of right and adverse.
    When a party, with knowledge of the existence of a contract of sale for certain lands, takes a deed from the owner of the same lands, the equitable title of the vendee in the contract will prevail over that given in the prior conveyance.
    Appeal from a judgment in favor of the defendants, entered on the report of a referee.

      The referee found, among other things, that on the 14th day of November, 1868, the defendant Abel Davis was the owner and in possession of premises known as the Wiley lot, in Watertown, and on that day contracted in writing to sell said premises to one Isaac Sprague. ' The said Sprague contracted to sell his interest in said premises to Elam L. Holcomb, May 1, 1869, which contract Holcomb transferred to Sarah Ann Cooper, March 31, 1870. On the same day Sprague transferred in writing his contract with Davis to the said Cooper with the written consent of Davis. Some time in the fall of 1870 the said Cooper assigned the last mentioned contract to the plaintiff, who then went into possession of the premises, and, having paid the balance of the contract, said Davis, pursuant to the covenants in said contract, gave to the plaintiff a deed of the premises, dated June 8, 1872.
    On and before the said 14th- day of November, 1868, the defendant Bobert Bissell was the owner and in possession of premises on said High street, and adjoining the premises described in the deed aforesaid from Davis to the plaintiff.
    A dwelling-house was built upon each of said lots about the year 1822, and at the same time the occupants of the resjsective premises used a common lane about ten feet wide, one-half taken from each lot, and the center line of the lane from High street being the division line between the lots; the said common way or lane was, from 1822 until about the time of the commencement of this action, used by the occupants of the respective lots under a claim of right. The Bissell lot is not accessible by a team to the rear, except through this lane, the lot being only two rods wide, and one side of the house forming the' marginal fence of a part of the lane. The said lane has been a portion of the time since 1822 inclosed by a fence on each side but open at the street.
    The defendant Bissell was in possession of the said lane, using the same in common with the occupants of the said Wiley lot, as above stated, at the time the said Isaac Sprague purchased the Wiley lot, November 14, 1868. Sprague knew of such uses, and that Bissell claimed the right of way, and purchased arid went into possession upon the assumption that Bissell had the ■ right of way. The right as appurtenant to the said Bissell lot was never disputed or questioned by any owner or occupant of the Wiley lot until the plaintiff did so after he had taken his deed from Davis.
    When the plaintiff took the assignment of the Sprague contract, and when he obtained the conveyance from Davis, he knew that the defendant Bissell was in the actual use of the said easement, or right of way, under a claim of right to such user.
    Bissell, after the making of the contract of sale, and with knowledge of it, took a conveyance "from Davis of the right of way, but the referee found that the said Bissell, in taking a conveyance of the right of way, did so simply to confirm a title which he had acquired by long user.

      Anson B. Moore, for the appellant.
    To authorize a presumption of a grant, the enjoyment of the easement must be not only uninterrupted for a period of twenty years, but it must be adverse; exclusive, and under a claim or assertion of right; and it must be with the knowledge and acquiescence of the owner. (Parker v. Foote, 19 Wend., 309-313; Flora v. Corbin, 38 N. Y., 111; 32 How., 439 ; Albany L. J., Oct. 5, 1872, page 234; Wolfe v. Frost, 4 Sandf. Ch., 72.) It is well settled that to constitute an adverse possession, it must be adverse at its commencement and so continue. It must be hostile to the owner. A person who enters without claiming title is deemed to hold for the rightful owner, (Brant ex dem. Walton v. O. & D. Ogden, 1 Johns., 156; Jackson v. Johnson, 5 Cow., 74; Jackson v. Woodruff, 1 id., 276; 1 Salk., 246; Smith v. Burtist, 6 Johns., 218.) Every presumption is in favor of a possession in subordination to the- title of the true owner. (Jackson v. Sharp, 9 Johns., 164; Hammond v. Zehner, 21 N. Y., 120, Clerke, J.) The enjoyment of an easement for twenty years and over, where the party enters and .uses by permission, or by favor, and not under a claim of title and in a manner hostile to plaintiff, cannot ripen into an adverse possession. The simple proof of an exclusive and uninterrupted enjoyment of an easement for more than twenty years, is only prima facie evidence of its being adverse, and any such presumption may be rebutted by evidence. The user in this case was not exclusive, but was with plaintiff and his grantors. The slightest evidence will overcome any such presumption. (Hart v. Vose, 19 Wend., 365, opinion of Cowen, J., 366.) The right to enter upon lands, build a dam there, etc., given without consideration, does not operate either by way of grant or estoppel to create any continuing or present right, nor can it be the basis of adverse possession. (Babcock v. Utter, 1 Keyes, 115-397; 32 How., 439; Dexter v. Holmes, 10 Johns., 246.)

      D. O’Brien, for the respondents.
    The use and occupancy of the lane by the defendant Bissell, and those who were proved or assumed to be his grantors and predecessors in title, present the only question of law decided by the referee in the case. He held that an adverse inception of an easement might be inferred from user, and that the onus was on the plaintiff to show that the easement originated in permission or license. This proposition is correct. (Hammond v. Zehner, 21 N. Y., 118; Hamilton v. White, 4 Barb., 61; Miller v. Garlock, 8 id., 153; Hammond v. Zehner, 23 id., 473; Lansing v. Wiswall, 5 Denio, 213; Corning v. Gould, 16 Wend., 529.)
   Gilbert, J.:

It is evident from the testimony, and from the fifth finding of fact, that Bissell stands in the position of a volunteer. He paid nothing for the grant from Davis to him, and he had actual notice of the previous sale by Davis to Sprague. Unless, therefore, there was a right of way in the lane., which Davis might confirm by express grant without violating the rights acquired under the contract with Sprague, the plaintiff’s equitable title under that contract should prevail over the prior conveyance to Bissell.

The general principle on which this doctrine proceeds is, that from the time of the contract for the sale of the land, the vendor holds the legal title as trustee for the vendee, and every subsequent purchaser from either, with notice, becomes subject to the same equities, as the party from whom he purchased would be. The provisions of the Revised Statutes avoid, against subsequent purchasers, unrecorded instruments creating interests in real estate, except contracts for the sale or purchase of lands. The referee finds that the lane in question existed since the year 1822; that it was formed by taking one-half of its width from the lots owned by the plaintiff and Bissell respectively, the center line of the same being the division line between the lots; and that it has been used continuously ever since by the occupants of the lots, respectively, in common, under a claim of right.

None of these facts are disputed, except that the use of the lane by Bissell and his grantors was under a claim of right. The appellant contends that there is no evidence of such claim. We cannot assent to that. The fact that a part of the lane was taken off from the Bissell lot, and that it furnished the only means of access with wagons to the rear of that lot and to one side of the house thereon, and the absence of evidence of any act of Bissell or his grantors showing that the use was not under a claim of right, or that any former owner of the plaintiff’s lot had ever disputed the right, together with its continued and uninterrupted use for so long a period, furnish very satisfactory evidence that the use of it by both parties was under a claim of right. It is very true, that mere presumption, unsupported by acts, will not suffice as a muniment of title to an easement in land. On the other hand, where the owners of adjoining lots make a way between them, each setting off an equal portion of land for that purpose, and they and their grantees continue to use it in common as a way for a' period of twenty years, we think the reasonable inference is, that such use was under a claim of right, and adverse. It is not necessary to assert such right in words, or by any particular acts or formula of conduct, or to show that the exercise of the right did any actual damage to the party against whom it is claimed, provided it was an invasion of his right. Where there has been a use of an easement for twenty years, under such circumstances, it will, in the absence of contradictory or explanatory evidence, authorize the presumption of a grant.

The taking of the deed from Davis by Bissell, did not affect the •ight of the latter. It was merely evidence for the referee to consider, in connection with the other evidence, in determining the question whether the previous use had been adverse or permissive. The conversation of Davis with Sprague did not contravene the rule against allowing evidence of the declarations of third persons not parties to the record. It operated only as proof of notice to the plaintiff’s assignor, of the claim of Bissell in respect to the lane, and on that ground was competent, because the plaintiff can claim no greater rights than Sprague. The evidence was not necessary to establish the defense, for the reason that the lane itself was open and visible; and that fact was sufficient to charge the plaintiff with notice that it might be an easement. Even if that evidence was erroneously admitted therefor, such an error would not require a reversal of the judgment.

The judgment should be affirmed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed, with costs.

       Fonbl. Eq., bk. 1, chap. 5, § 2.

       Champion v. Brown, 6 Johns. Ch., 403 ; Hathaway v. Payne, 34 N. Y., 103.

         1 R. S., 756, §§ 1, 38.

       Miller v, Garlock, 8 Barb., 153.

       Wash. on Eas. (3d ed.), 136 et seq., and cases cited ; Hall v. Augsbury, 46 N. Y., 625.

       Perrin v. Garfield, 37 Vt. 310.

       Vandervoort v. Gould, 36 N. Y., 639.


text:
    JOHN B. SCHOLEY, Executor, Respondent, v. DAVID F. WORCESTER and FRANCES G., his Wife, Appellants.

      Creditor — when estopped, by Ms acquiescence therein, from asserting that a transaction of his debtor was fraudulent.

    Where money is lent to one, who, with the knowledge and assent of the creditor, uses the same in erecting buildings upon land belonging to his wife, the creditor cannot afterward maintain an action to charge the debt upon the land of the wife, on the ground that such disposition of the money was, as to him, fraudulent.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action was brought to charge the lands of the defendant Frances G. Worcester with the payment of a debt due from her husband to the estate of Elizabeth G. Scholey, deceased: The premises were, from the time of their purchase, in July, 1867, the property of the said Frances. The debt, attempted to be charged upon these premises, was contracted in 1867, for a loan of United States bonds to David by the deceased, a sister of Frances; the proceeds of the bonds having been used in erecting a house on the land in question.

      Geo. F. Danforth,, for the appellants.

      F. A. Macomber, for the respondent.
   Gilbert, J.:

There is evidence which tends to raise an inference that the expenditure of the moneys used by the defendant David Worcester, in building the house upon lands of his wife, was made with the knowledge and approbation of the testatrix, Mrs, Scholey. If it should turn out that such was the case, thé fact would constitute a perfect bar to the relief sought against Mrs. Worcester ; for a party who has been privy, and assented to a transaction which may be treated as fraudulent as to creditors, cannot impeach it on that ground. In Steel v. Brown Lord Mansfield held a bill of sale, where possession had not been taken under it, good between the parties to it, and, creditors who concurred in the nondelivery of possession. So a transfer will not be held fraudulent against persons who became creditors after they had notice of it, or who were privy and assented to it. In Olliver v. King, a father, after consultation with his brother, executed a voluntary deed assigning a considerable portion of his property to his two sons, and by his will made the brother and sons executors, and died. The brother never impeached the settlement, but acted under the will, and was a party to several transactions proceeding upon the assumption of the validity of the settlement. At his death his executors Impeached the voluntary deed as void against the brother, he being a creditor of the debtor, on a bond made prior to the deed. The vice-chancellor decided against the validity of the deed, but the lords justices reversed that decision on appeal. Sir G. J. Turner said: “ The deed was executed with his [the creditor’s] full consent and concurrence and he could not be permitted to say (and if he could not have been, his executors could not be) that the deed thus executed with his full consent and concurrence, was a fraud upon him within the meaning of the statute. (13 Eliz., chap. 5.) My opinion is based on this. I consider the true effect of this agreement to be, that John [the creditor], by his conduct, agreed to this alienation of the assets, and must have consented to take satisfaction out of the property which remained.” A similar principle has often been asserted by the courts of this State. Indeed, the rule is elementary, that parties, who, by their conduct, or even silence, have led others to act in opposition to their rights, cannot afterward set up those rights against them.

Upon the trial, the counsel for Mrs. Worcester offered to prove that her husband, David, was induced to come to Rochester with his family at the request <3f the testatrix, and that at her suggestion and request the premises in this case were purchased, she expressing a desire that the title should be in Mrs. Worcester. The evidence was excluded, and it is not unreasonable to infer that the court supposed that the facts to which the evidence offered related, were to be proved by conversations between the defendant David and the testatrix. The offer, however, was not restricted to that particular mode of proof, but was made in general language, which would embrace other and competent kinds of evidence. The facts offered to be proved were certainly competent and very material, according to the principle to which we have adverted; and for the error in excluding the evidence offered, there must be a new trial.

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

      1 Taunt., 381.

       Sagitary v. Hide, 2 Vern., 44; Woodham v. Baldock, 3 J. B. Moore, 11; Bamford v. Baron, 2 T. R., 594; Olliver v. King, 8 De G., Mac. & Gord., 110.

         1 Jur. (N. S.), 1067.

      Pell v. Tredwell, 5 Wend., 697; Phillips v. Wooster, 36 N. Y., 414; Baker v. Gilman, 52 Barb., 39.


text:
    SAMUEL T. GRAVES and others, Plaintiffs, v. DAVID BRINKERHOFF, Defendant.

      Submission widen' Code, § 372—both legal and equitable relief may be given under — Money paid under mutual mistake — when it may be recovered.

    The plaintiff having agreed to purchase of the defendant certain land at a stipulated price per acre, a survey was made of the land, and the plaintiff paid the amount appearing thereby to be due from him. Subsequently it was discovered that the land did not contain the number of acres called for by the survey. Held, that the plaintiff was entitled to recover the amount paid by him through mistake, with interest thereon from the time of payment.
    After the sale to plaintiff, the defendant sold the remainder of the land to third persons, relying upon the survey, thereby conveying to such persons more land than they were entitled to. Held, that the plaintiff was not thereby prevented from recovering the excess paid by him.
    Upon submission of a controversy under section 372 of the Code, the court is bound to give such judgment as the facts require, whether it be legal or equitable.
    Controversy submitted upon an agreed statement of facts, in pursuance of section 372 of the Code. Some time prior to March, 1867, the defendant made an oral agreement with the plaintiffs for the purchase of a piece of land situate in the town of Seneca, Ontario county. The quantity of land was unknown. The price agreed upon was $115 per acre. In pursuance of such agreement the land was surveyed, and a map thereof made. The plaintiffs were present at the survey, by S. S. Graves, and the defendant was present in person. After the survey was made and a map thereof furnished, a written agreement was entered into, bearing date March 1st, 1867^ in and. by which the parties undertook to ratify their previous oral agreement for the sale and purchase of said land. In this agreement the description was copied from the surveyor’s map and the figures thereon. The contract was executed by the delivery of said deed, the payment of a portion of the moneys mentioned in said contract, and by executing and delivering to the defendant a bond and mortgage for the balance. The plaintiffs and defendant supposed the number of acres mentioned in the contract and deed to be correct, and never knew of the mistake until the latter part of the year 1873, when the plaintiffs had occasion to have a portion of the land resurveyed, and then, for the first time, was it discovered that instead of forty-one and eighty-four one-hundredths acres, as set out in the contract, the laud sold by the defendant measured but thirty-seven and forty-one one-hundredths acres, of all of which the plaintiffs immediately informed the defendant, and demanded the difference of him, with interest, which he declined to pay over, except upon the judgment of this court. The mistake between the parties to the submission was mutual. Neither of the parties knew or know anything about surveying or the computation of amounts of land by links, chains and courses, and each took the computation at the time to be correct. The plaintiffs overpaid, through said mistake, the sum of $391, on which they claim interest, as they have paid interest from March 1, 1867. At the time of the survey and the making of the contract and deed above mentioned, the defendant was the owner of one hundred and five and eighty-one óne-hundredths acres of land in a body from which the land in question was taken; and after the sale to the plaintiffs, and about the year 1869, the defendant, relying upon the survey of that portion sold to the plaintiffs, and believing it to be correct, sold without survey, according to the boundaries as they then existed, the residue of said land in a body to Bronson & Herendeen, of Geneva, N. V., for sixty-five acres more or less; but the said Bronson & Herendeen bought the same in bulk, without any reference to quantity.

      George B. Dusinberre, for the plaintiff.
    The deed does not embody the final intention of the parties. (Gillespie v. Moon, 2 Johns. Ch., 585; Prior v. Williams, 2 Keyes, 538; 5 Mason, 572; 25 Vermont, 576 ; 2 Johns. Ch., 630; 32 Me., 274.) When a conveyance, executed for the purpose of giving effect to and executing an agreement, by any mistake, gives a purchaser less than the agreement entitles him to, he may call on the court to rectify the defective conveyance and give him all that his agreement comprehended. (Kerr on Mistakes, 419 ; Tilton v. Tilton, 9 N. H., 385; Blessing v. Beatty, 1 Rob., 286; Blodgett v. Hobart, 18 Vt., 414.) The courts will always relieve against a mutual mistake of fact, where one party pays money to another through such mistake. (Chit, on Cont. [Am. ed. of 1844], 426 and cases cited in notes; Chitty on Bills, 425; 2 Smith Leading Cases, 237; Mowatt
      v. Wright, 1 Wend., 355 ; Burr v. Veeder, 3 id., 412; Waite v. Leggett, 8 Cow., 195; Union Bank v. U. S. Branch Bank, 3 Mass., 74; Garland v. Salem Bank, 9 id., 389; Bank of Commerce v. Union Bank, 3 N. Y., 230; Kingston Bank v. Eltinge, 40 id., 391; Duncan v. Berlin, 46 id., 685.) Where the money is erroneously paid by one party to another in mutual ignorance of facts which if known would have prevented the payment. (1 Story Eq., § 142; Burr v. Veeder, supra.) Where money is paid by one party to another through a mutual mistake of fact in respect to which both were equally bound to inquire. (Canal Bank v. Bank of Albany, 1 Hill, 287; Bank of Commerce v. Union Bank, supra.) Mor is it any defense that the plaintiff had within his reach the means of ascertaining the truth, or that he omitted to use vigilance and care by which the mistake would have been avoided. (Kingston Bank v. Eltinge, 40 N. Y., 391; U. Nat. Bk., Troy v. Sixth Nat. Bk., N. Y., 43 id., 452.) Nor does negligence in making the mistake prevent the party from recovering back money paid under a mistake of fact. (Duncan v. Berlin, 46 N. Y., 685; National Life Ins. Co. v. Jones, 1 N. Y. Sup. Ct., 446 and cases there cited; Lawrence v. Am. Na. Bk., 54 N. Y., 433 ; Nat. Bk. Com., in N. Y., v. Nat. Mec. Banking Association, 55 id., 211.) It makes no difference that the defendant cannot be restored to his original position upon paying back the money. (The Kingston Bank v. Eltinge, 40 N. Y., 391; Mayer v. The Mayor of N. Y. City, 9 Sup. Ct. [2 Hun], 306.)

      D. B. Backenstose, for the defendant.
    It is impossible to place the parties in statu quo, and therefore the court will not relieve the plaintiffs. (Martin v. McCormick, 4 Sandf., 366; 1 Story Eq. Jur. [10th ed.], ¶ 138, p, 138; 2 Kent’s Com. [11th ed.], 656 [marg. page 492], note.)
   Gilbert, J.:

As a general rule, where a person by mistake of fact, pays money to another which he does not owe him, the law implies a promise to repay it. Whether in a case like this, where the mistake occurred in paying the purchase-money of lands, and the purchase has been consummated by a conveyance, the remedy can be pursued in an action at law, or must be sought in a court of equity, it is not material to inquire. For, upon a submission of a" controversy pursuant to section 372 of the Code, the court is bound to give such judgment as the facts require, whether the relief be legal or equitable.

The facts in this case clearly entitle the plaintiffs to a return of the sum claimed. It is a case of a plain mistake, and one which must be deemed material.

We think it is not an obstacle to the relief sought, that the parties cannot be .put in the position they were in before the sale was made; in other words, that it is not necessary, in order to do justice to the defendant, that the plaintiffs should reconvey the land, and that the contract of sale should be rescinded. The defendant sold the land for a fixed price per acre agreed upon, and the plaintiffs are entitled to both the land and the amount which they overpaid by mistake. This is the only way in which the mistake can be corrected. To annul the sale would not do that, but would deprive the plaintiffs of a fair bargain without any fault on their part. Such a decree would not be in accordance with the rule in equity on this subject. That rule merely requires that the parties shall be placed in the same situation they would have been in, if the mistake had not happened. Upon that principle, the plaintiffs are entitled to the land, but the defendant is entitled only to a sum less than that which he received, which is ascertained by deducting therefrom the amount claimed by the plaintiffs.

Nor does the subsequent sale of the residue of the defendant’s land to other parties affect the equitable rights of the plaintiffs. They were strangers to that transaction, and if the mistake which they now seek to have corrected caused the defendant to make that sale, at a price less than he would otherwise have obtained, the surveyor .who caused the mistake, and not the plaintiffs, is responsible.

These are the only questions presented. The plaintiffs are, therefore, entitled to recover the sum of $391, with interest from March 1, 1867, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly. .

       Wheadon v. Olds, 20 Wend., 174

      1 Story Eq., §§ 140,141; Adams Eq., 188; Marvin v. Bennett, 26 Wend., 169.


text:
    GEORGE W. WOOD, Appellant, v. ROBERT SHULTIS, Respondent.

      Statute of frauds—property received under contract void by—when promise to pay for, implied—Justice's Court—amendment to complaint—when allowed— Code, § 64, sub. 11.
    Where a party receives property under a contract, void by the statute of frauds, and, for that reason, subsequently refuses to fulfill the contract on his part, the law implies a promise to pay the value of the property so received.
    In a proper case the statute (Code, §• 64, sub. 11) makes it the imperative duty of a justice to grant an amendment upon proper terms. The word “ may ” in the statute means “ shall.”
    Appeal from a judgment of the County Court of Ontario county, affirming a judgment of a justices’ court, in favor of the defendant.
    The complaint alleged that the plaintiff made a contract with the defendant to sell him forty-five trees standing upon his land, in consideration of which the defendant agreed to dig a ditch upon his own land to carry off water from the land of the plaintiff; that he had cut and carried away the trees and refused to dig the ditch. The defendant set up that the contract was void under the statute of frauds.

      D. Herron, for the appellant.

      John Gillette, Jr., for the respondent.
   Gilbert, J.:

The only questions in this case are, whether the justice erred in excluding the evidence offered by the plaintiff, and in denying his application to amend the complaint, and we are of opinion that he did, in both instances.

The complaint, it is true, set forth a cause of action arising upon the contract, and the specific relief demanded was damages for the breach. But it also contained all the facts necessary to entitle the plaintiff to recover upon the defendant’s implied promise to pay what the timber was worth. And the prayer for relief did not disable the justice from granting any other relief which would have been adapted to the case. Such a variance between allegation and proof should have been disregarded, for there is not the slightest pretext for saying that the defendant could have been misled by it. The complaint set forth .the contract, and averred that the defendant had taken the timber pursuant thereto, but had failed to perform the contract on his part. The answer contained a general denial and an averment that the contract was not in writing, and was for that reason void. If the-complaint had shown that the contract was void, there would have been no variance. How then could the defendant claim to have been misled by such an omission, when the fact appeared in his answer ? That the plaintiff would have been entitled to recover, upon the evidence offered, the actual value of the timber, cannot be doubted. The defendant had taken the timber from the plaintiff under a verbal contract which was void by the statute of frauds. That timber was the consideration of the defendant’s part of the contract. He had failed to perform the contract, and on the trial repudiated it altogether. The law affords no sanction to such a mode of appropriating the property of another, but, on the contrary, implies from such circumstances a promise to pay the value of it. If the contract had been not only void, but illegal, the plaintiff, on that account, would not have had any remedy, but, being invalid only by reason of its not being in writing, the plaintiff had a clear remedy. It was the plain duty of the justice to afford him that remedy, Such a ground of nonsuit as that in this case, if finally sustained, would retrograde the practice more than a quarter of a century.

The justice also committed an error in denying the motion of the plaintiff for leave to amend his complaint. It is manifest that substantial justice would have been promoted thereby, although the amendment was not absolutely necessary, for it would have prevented an erroneous nonsuit, and have saved the parties an expensive and useless litigation. In such a case the statute makes it the imperative duty of a justice to grant an amendment upon proper terms. When a power is conferred by statute for the promotion of justice, suitors have a right to insist upon the exercise of it in a proper case. It is not wholly discretionary. The word may, in such a statute, means shall

It is claimed that this error is not before us, because it is not specified in the notice of appeal. The opinion of the court below shows that it ivas passed upon there. It is in the record before us. The statute requires the County Court to render judgment upon the whole ease, without regard to technical errors or defects. The judgment of the County Court and of the justice must be reversed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.

       King v. Brown, 2 Hill, 485; Lisk v. Sherman, 25 Barb., 435; Baldwin v. Palmer, 10 N. Y., 232.

       Abbott v. Draper, 4 Den., 51; 10 N. Y., supra.

         Code, § 64, sub. 10; Wait’s Law and Pr., 408 et seq.; Conaughty v. Nichols, 42 N. Y., 83.

       Code, § 64, sub. 11.

       Macdougall v. Patterson, 11 C. B., 772; Mayor v. Furze, 3 Hill, 612.

       Code, § 366.


text:
    In the Matter of the Application of THE SYRACUSE, BINGHAMTON AND NEW YORK RAILROAD COMPANY, to acquire Lands.

      Chap. 140 </1850— 287 of 1869 — General Railroad act—land taken under—when pi-oceedings may be discontinued — costs on such proceedings — chap. 270 of 1854.
    Under the provisions of the general railroad act (chap. 140 of 1850, and chap. 237 of 1869), relative to the taking of land for the railroad company, there is no obligation imposed on the company to take land until the confirmation of the report of the commissioners appointed to assess the damages.
    Up to this point in the proceedings, the court has power on the application of the company to discontinue the proceedings; the act, chapter 270 of 1854, authorizes the awarding of costs in proceedings under the general railroad act. Rensselaer, etc., R. R. Co. v. Davis (55 N. Y., 145) followed.
    Appeal by certain owners from an order made at Special Term, declaring that the'-proceedings taken .on the part of the railroad company to acquire their lands were thereby abandoned and discontinued, and that such owners recover their witness fees and other taxable disbursements on such proceedings, and $150 extra allowance against said company; and by said company from that part of the order which awards costs and an allowance.

      H. Burdick, for the contestants.

      Wm. J. Wallace, for the railroad company.
   Gilbert, J.:

Appeal by certain owners from an order made at Special Term, October 28, 1873, declaring that the pfbceedings taken on the part of the railroad company to acquire their lands, were thereby abandoned and discontinued, and that such owners recover their witness fees and other taxable disbursements in such proceedings, and $150 extra allowance against said company ; and by the company from that part of the order which awards costs and an allowance.

This company was incorporated pursuant to the general railroad act of April 2, 1850, and the proceedings to acquire land, referred to, were taken under the provisions for that purpose contained in that act and in the amendatory act of April 17, 1869. Commissioners of appraisement were duly appointed, and' made a report which bears date J uly 26, 1873. This report was not presented to the court for confirmation, but, on the '18th of August, 1873, the company notified said owners, in writing, that said proceedings from that date would be, and thereby were, abandoned by said company. The provisions of the acts of 1850 and 1869, before referred to, relating to this subject, confer upon railroad corporations the right to acquire lands, compulsorily, and prescribe the manner in which that right shall be exercised. Among these regulations is that contained in the seventeenth section of the act of 1850, which provides that, upon the report of the commissioners being made, the company shall give notice to the parties to be affected by the proceedings, according to the rules and practice of the court, for the confirmation of the same, and that thereupon the court shall confirm such report. The eighteenth section provides that the order of confirmation shall be recorded, and that thereupon and on the payment or deposit by the company of the sums to be paid as compensation for the land and for costs, counsel fees and expenses, as aforesaid, as directed by said order, the interest sought to be acquired in the land shall vest in the company. Although the language of the seventeenth section is imperative, yet its sole object being to declare one of the terms or conditions on which the company might acquire the land, no absolute duty to perform the condition was imposed. The statute left it optional with the company to perform the condition, or renounce the right. It is only upon the confirmation of the report of the commissioners, that the claim of the owners to the damages awarded to them accrues; and, as already stated, there is no obligation imposed on the company to take the land before that event. Until mutual interests have become vested by the confirmation of the report, the proceedings resemble a negotiation between the parties, which must be consummated in the manner provided by the statute, before either acquires any vested rights against the other.

We are of opinion that the proceedings were effectually discontinued by the notice. Uo doubt the court had power to make the order of discontinuance as an incident to the authority conferred upon it; and it was a very proper act to be done, although it was not absolutely necessary to protect the owners. But we have not been able to find any authority for granting costs to the owners. The only provision of the general railroad act on this subject is that contained in the sixteenth section, which requires the commissioners to determine what sum ought to be paid to the general or special guardian or committee of an infant, idiot or person of unsound mind, or to the attorney of an unknown owner, for costs, expenses and counsel fees. These are evidently the costs, expenses and counsel fees, referred to in the eighteenth section before mentioned. The court can exercise no power in these proceedings except such as is expressly given to them. The case of Hud. R. R. R. Co. v. Outwater is not applicable, for the reason that the charter of the company in that case provided for the allowance of costs and expenses to owners indiscriminately. Uor does the act of 1854, in relation to special proceedings, apply to the case. It is no doubt a special proceeding, but it is governed wholly by the general railroad act. That statute forms a separate and complete system independently of the provisions in general statutes. In N. Y. Cent. R. R. Co. v. Marvin, the Court of Appeals held such a proceeding to be a special creation of the statute designed to form a complete system of itself, entirely independent of the general provision of the Code, which authorizes an appeal to that court from a final order affecting a substantial right, made in a special proceeding. The act' of 1854 was not designed to interfere in any way with that system. This is evident from the provisions of the first section. That allows an appeal from any order made at Special Term. The general railroad act requires the court to make an order confirming the commissioners’ report in the first instance, and then authorizes either party to appeal to the Supreme Court from the commissioners’ report (not from the order of confirmation thereof), and provides that such appeal may be heard at a Special or General Term; that, on the. hearing thereof, the court may direct a new appraisal, and makes the second report final and conclusive without any order of confirmation. It cannot be supposed that the legislature intended, by the general provision contained in the act of 1854, to give an appeal from the order of confirmation, in addition to that from the report of the commissioners, or an appeal to the General Term from the order made at Special Term on a hearing of an appeal from the report of the commissioners., Such a construction would be absurd. The specific provision for the payment of costs contained in the general railroad act, necessarily excludes all other costs, and any other mode of ascertaining the amount thereof, except the award of the commissioners. The view we have taken of the subject is sustained by several decisions of the Court of Appeals, besides the case of N. Y. Central R. R. Co. v. Marvin, before cited.

We are clear, that in any event the extra allowance was unauthorized. We can discover no principle on which it can be brought within the provisions of the Code on that subject. If the proceeding be a case,” within the meaning of section 309, it is not a difficult or extraordinary one, nor has a defense been interposed, or a trial had.

Since the foregoing was written, our attention has been called to the case of The Rensselaer, etc., R. R. Co. v. Davis, wherein the Court of Appeals held, that the act of 1854 authorized the awarding of costs in proceedings under the general railroad act.

We can therefore only modify the order appealed from, by striking therefrom the extra allowance, instead of reversing it altogether.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Ordered accordingly.

       Corp. of N. Y. v. Mapes, 6 Johns. Ch., 48 ; People v. Brooklyn, 1 Wend., 318; Re Anthony Street, 20 id., 618; Re Wall Street, 17 Barb., 642; Balt. and Sus. R. R. Co., v. Nesbit, 10 How. (U. S.), 395; Hill v. Coms. of Worcester, 4 Gray, 414.

       Alb. and North. R. R. Co. v. Cramer, 7 How., 164.

         3 Sandf. 690.

       Laws 1846, chap. 216, § 10.

      1 Kern., 279.

       Sec. 11, sub. 3.

       Sec. 18.

       Re Canal and Walker Streets, 2 Kern., 406 ; King v. The Mayor, 36 N. Y., 182; Re Dodd, 27 id., 629.

       55 N. Y., 145.


text:
    SOLOMON L. SIMPSON, Appellant, v. THOMAS F. BURCH. JOHN CLARK and others, Respondents, v. THE SAME.

      Chap. 511 of 1853, and chap. 212 of 1863—order of substituted service — what affidavit sufficient—Code, § 139—Attachment—omission to sene summons within thirty days after issuing of.

    An affidavit of the-sheriff stating that he had made diligent and proper efforts to serve the summons upon the defendant by going to his place of business and residence, but that he could not be found in this State, is sufficient to authorize the county judge to order a substituted service, pursuant to chapter 511 of 1853, as amended by chapter 212 of 1863.

      Collins v. Campfield (9 How., 519); Foot v. Harris (2 Abb., 454) distinguished.
    The omission to serve the summons within thirty days of the allowance of an attachment, entitles the defendant to avoid all proceedings after the issuing thereof, but does not render such proceedings void as against third persons.

      Waffle v. Goble (53 Barb., 517); Taddiken v. Cantrell (8 S. C. [1 Hun], 710) distinguished.
    Appeal from an order denying a motion to set aside and' vacate the judgment in the above entitled action, on the ground that the court acquired no jurisdiction thereof.
    The action was commenced by the issuing of a summons. The defendant could not be found, and the summons was served pursuant to an order granted by Hon. C. Whitney, county judge, under the act of 1853, providing for a substituted service. A warrant of attachment was duly issued and served. Judgment was entered August 20, 1874. Solomon L. Simpson subsequently obtained a judgment against the same defendant, and made the motion to vacate and set aside the judgment of Clark & Co.

      C. H. David, for the appellant.

      Howe & Rice, for the respondent.
   Gilbert, J.:

The plaintiffs have recovered a judgment in this court against the defendant, on which an execution has been issued, and a levy made upon his goods. Mr. Simpson, a junior creditor of the defendant, by a judgment upon which an execution has been issued to the same sheriff, moved at Special Term for an order vacating and setting aside the judgment and execution of the plaintiffs, on the ground that the court acquired no jurisdiction of the defendant. It appears that the defendant was not served personally, but that an order was made by the county judge of Oswego county, where the venue was laid, for a substituted service, pursuant to the act of 1853, to facilitate the service of process in certain cases, as amended in l-863. The order was made upon an affidavit of the sheriff of Oswego county, stating that he had made diligent and proper efforts to serve the summons upon the defendant, by going to his place of business and residence, but that he could not be found m this State.

It is objected that the affidavit does not show that the sheriff made diligent and proper efforts to serve the summons personally, or that the defendant could not be found. We think the affidavit was sufficient to authorize the county judge to make the order. The evidence presented to him was competent, and tended to prove the facts on which his authority to issue the order depended. Nothing more is required. It is urged that the statement that the defendant could not be found in this State vitiated the affidavit. The answer is, that it was some evidence to prove that the defendant could not he found anywhere, within the meaning of the act of 1853. Whether it was sufficient to satisfy the county judge or not was for that officer to decide. In Collins v. Campfield, and Foot v. Harris, the affidavit on which the order was made showed where the defendant might be found out of the State. When such a fact appears in the affidavit, it is proved affirmatively that the defendant can be found, and the order should not be made. Those cases are clearly distinguishable from this.

As against the present applicant, we think the attachment proceeding is sufficient to uphold the judgment. Section 139 of the Code expressly conferred jurisdiction of the action from the time of the allowance of the attachment. The omission to serve the summons personally or by publication within thirty days afterward, was an irregularity which entitled the defendant to avoid all proceedings after the issuing of the attachment. But such omission did not render the proceedings void as regards third persons. The defendant undoubtedly might waive the effect of such omissions, and that is the test whether the defect shown is a nullity or a mere irregularity. Upon this ground, we think the case of Gere v. Gundlach was rightly decided. In Waffle v. Goble, and Taddiken v. Cantrell, the defendant, and not a third person, was the moving party. For that reason, those cases are not authority for the position assumed by the applicant here.

The order should be affirmed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order affirmed, with ten dollars costs.

       Chap. 511.

       Chap. 212.

         Miller v. Brinkerhoff, 4 Den., 118; Staples v. Fairchild, 3 Comst., 41; Skinion v. Kelley, 18 N. Y., 355; Collins v. Ryan, 32 Barb., 648.

       9 How., 519.

       2 Abb., 454.

         Clapp v. Graves, 26 N. Y., 418; Bascom v. Smith, 31 id., 595; Reinmiller v. Skidmore, 7 Lans., 161; affirmed in Court of Appeals, January, 1875.

       57 Barb., 13.

       53 Barb., 517.

       4 N. Y. S. C., 222; S. C., 1 Hun, 710.


text:
    MARTIN J. VINCETT, Respondent, v. CHRISTIAN COOK, Appellant.

      Negligence—owner of dilapidated building adjoining highway — duty and liability of— JMdence.

    An owner oí land which adjoins a public street in a populous city, who suffers a building to remain thereon in an unsafe or dilapidated condition, is liable to a party sustaining damages by the falling of the wall of such building, although the fall of the wall may have been the result of a storm of unusual violence.
    Failure on the part of the owner of a building to keep it in a safe condition, and resulting damages, throw upon the owner the burden of showing that the building was safe so far as diligent examination would show.
    Appeal from a judgment in favor of plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial.
    A wall of defendant’s building was blown over by a strong wind upon the plaintiff, who was passing along the street, and this action was brought to recover damages for the injury sustained by the plaintiff thereby.

      Fuller & Vann, for the appellant.
    The owner of a building is not an insurer of its safety. The law requires of him simply ordinary care and vigilance. (Shearman and Redfield on Negligence, § 498; Wharton on Negligence, §§ 26, 415.) The only principle by which the defendant can be held liable at all in this action, is, that it is negligence to permit things to remain near a highway in such a manner that in the natural course of events they may fall and injure persons lawfully passing. (Wharton on Negligence, § 839; Hunt v. Hoyt, 20 Ill., 544; The Rector, etc., of the Church of the Assumption v. Buckhart, 3 Hill, 193.) But the law does not award damages for the consequences of a lawful act performed in a lawful manner, nor from injuries which- result from accident, or which could not be prevented by ordinary human care. (Livingston v. Adams, 8 Cow., 175 ; Williams v. N. Y. Central R. R. Co., 18 Barb., 222, 247; Clark v. Foot, 8 Johns., 421; Panton v. Holland, 17 id., 92, 99; Radcliff v. Mayor of Brooklyn, 4 N. Y., 106, 200; Crofts v. Waterhouse, 3 Bing., 319.) Nor can a man be held responsible for failing to prognosticate natural casualties, such as are called the acts of God. (Wharton on Negligence, § 416, and cases cited; Price v. Hartshorn, 44 Barb., 655; Merritt v. Earle, 29 N. Y., 117.) Nor for ignorance of facts which ordinary diligence could not have discovered. (Wharton on Negligence, §§ 26, 415.)

      Hiscock, Gifford & Doheny, for the respondent.
    The old and well established maxim, sic utere tuo ut alienum non losdas, is especially applicable to owners of real estate, particularly in cities and adjoining highways, and has been expressly or in effect asserted, by the courts in numerous decisions. (Althorf v. Wolfe, 22 N. Y., 355; Benson v. Suarez, 43 Barb., 408.) As having a covered coal hole or other excavation in the sidewalk. (Anderson v. Dickie, 26 How., 105, 117; Congreve v. Smith, 18 N. Y., 79, 84.) Building and bridging a race-way across a highway, and failing to keep such bridge perfectly safe to travel over: held, one sustaining injuries thereby, without gross neglect, was entitled to recover, even though such builder had used the utmost care to prevent such injury. (Dygert v. Schenck, 25 Wend., 446; Barton v. City of Syracuse, 39 N. Y., 54.) A traveler merely detained in a highway, by a fence across the same, may recover his damages of detention from him who so caused it. (Pierce v. Dart, 7 Cow., 609.) So the owner of horses, whose servant leaves them unhitched in the street, is liable to him against whom they run for his injuries thereby. (Morris v. Kohler, 41 N. Y., 42, 46.) And he who is injured by a collision in a highway may recover, if he used ordinary care to avoid it, unless it be shown in defense to have been done by inevitable accident, or that the defendant was without blame, and the injury he caused unavoidable. (Center v. Finney, 17 Barb., 94; Qurman v. Bennett, 6 M. & W., 499, 510; Leame v. Bray, 3 East, 593; Castle v. Duryee, 2 Keyes, 169; Jetter v. N. Y. and Harlem R. R. Co., id, 174; Guelle v. Swan, 19 Johns., 381.) It cannot be reasonably claimed that he who travels in the streets of a city must critically examine and constantly watch the tops of the walls of the adjoining buildings, and determine and avoid them if unsafe, or be held guilty of negligence and not entitled to recover in an action like this; because, in thus directing his attention upward, he might fall into some excavation beneath him and receive injury, and so, for want of watching in th'at direction, be held not entitled to recover for such injury. This respondent had a right to assume that appellant would maintain this building and wall as required by the law of the land. Every owner of real property and buildings is presumed to know in what way to make such buildings safe against all ordinary winds, and is also bound to know enough to keep the same in such condition as to prevent injuries thereby to others. (Benson v. Suarez, 43 Barb., 408; Qurman v. Bennett, 6 M. & W., 499, 510; Morris v. Kohler, 41 N. Y., 42.) And want of mental capacity is no defense to actions for personal injuries. (Bullock v. Babcock, 3 Wend., 391, 394.)
   Gilbert, J.:

We perceive no cause for disturbing this judgment., The liability of the defendant depended solely upon questions of fact. These were determined by the jury upon instructions as to the law, which appear to us to have been quite as favorable to the defendant as the evidence warranted. Upon a .well established principle, therefore, the verdict must be held to be conclusive. Upon the merits, also, the case is clear. An owner of land which abuts on a public street in a populous city, who suffers a building to remain thereon in an unsafe or dilapidated condition, is not exempted from liability for an injury to a person lawfully using the street, which injury was occasioned by a part of the building being detached from the rest by a storm, and falling upon him, because the storm was one of unusual violence. It was, no doubt, lawful for the defendant to erect the building in question, and to keep it where it stood. A man has an absolute right to use his own property as he pleases for all the purposes to which that kind of property is usually applied, and this right cannot be interfered with so long as it is not a nuisance. A building adjoining a highway, which is in such a condition-as to endanger the safety of persons passing along it, is a nuisance. The law casts -upon the owners of buildings so situated the duty of preventing their being or becoming dangerous to persons lawfully passing along the highway. Failure in such duty, and resulting damage, furnish prima faoie evidence of negligence by the maxim res ipsa loquitur. The burden was thus cast upon the defendant of proving that the building, at the time of the accident, was safe, so far as diligent examination would show. On this point there is no room for argument against the verdict of- the jury. There is not the slightest proof of any contributory negligence on the part of the plaintiff that we can discover, and no testimony tending to prove it has been pointed out.

We are inclined to think the question put to the witness Soule, viz.: What was the condition of that wall; was it safe, or otherwise,” was not improper. It did not necessarily call for the opinion of the witness, but for the result of his actual observation. Matters of common observation may ordinarily be proved by those who witness them. It certainly did not require an expert to tell whether a building, in the condition this was, was safe. But the exception is unavailing, because no ground of objection to the testimony was stated. Where the objection is to the mode of proving a fact, and not to proof of the fact itself, it must be distinctly placed upon that ground so that the opposite party may obviate the objection by proving the fact in a legal manner. With respect to the other objections, it is only necessary to say, that we have examined all of them and find in them nothing worthy of remark.

The judgment must be affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

       Kearney v. Lond. B. and S. Railway Co., L. R. (5 Q. B.), 411; Scott v. Lond. Docks Co., 3 H. & C., 596; Fletcher v. Rylands, L. R. (1 Exch.), 279 ; S. C., 3 Hof. L., 339; Worster v. Forty-second Street R. R. Co., 50 N. Y., 203; Dygert v. Schenck, 23 Wend., 447; Whart. on Neg., §§ 839 to 844.