text:
    In the Matter of the Application of Legrange E. Scrafford for a Writ of Habeas Corpus.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Extradition—Appeal.
    An order made in habeas corpus proceedings, holding that the rendition warrant of the governor is invalid and discharging the defendant, is appeal-able, and such appeal is properly taken by the attorney general by service of the notice of appeal on the clerk and the attorneys for the defendant.
    2. Same—Rendition warrant.
    In the absence of the papers on which the warrant was granted, the warrant alone can be considered, and recitals in such warrant that the demand for extradition was accompanied by the papers required by the statute of the United States to justify the surrender, which showed that the defendant had been “ duly charged with said crime and with having fled from said state and taken refuge in the state of New York,” and that the papers were duly certified, are sufficient to sustain its validity.
    3. Same—Misnomer.
    A mistake in the spelling of the defendant’s name furnishes no ground for a discharge where the pronunciation remains the same, and it is apparent that the defendant was the person intended.
    Appeal from an order made by Hon. W. T. Dunmore, special county judge of Oneida county, August 20th, 1890, declaring a rendition warrant, issued by the governor, insufficient, and discharging defendant “from the custody of the sheriff of Oneida county and from further imprisonment and restraint under and by virtue of the said warrant issued by the governor of the state of New York, by which he was held by the sheriff ” ; which order was filed August 23d, 1890, in the Oneida county clerk’s office. On the 12th day of September, 1890, the People, by their attorney general, Hon. Charles F. Tabor, appealed to this court from the said order. The appeal "was brought to argument, and at the same time a motion was submitted in behalf of the defendant to dismiss the appeal. July 30th, 1890, the defendant made his petition to the said special county judge for a writ of habeas corpus, and on the 30th of July, 1890, a writ was issued directed to the sheriff of Oneida county requiring him to produce the defendant before the said judge on the 30th day of July, 1890. On that day the sheriff produced the defendant in obedience to the writ and made his return to the writ in which he said “ his authority for the taking of the said Legrange E. Scrofford into custody, and the true cause of the imprisonment or restraint of the said Legrange E. Scrofford, was and is by virtue of a mandate or warrant issued by the Hon. David B. Hill, governor of the state of New York, for the crime charged to have been committed therein in the state of Pennsylvania of removing his property from the state of Pennsylvania, 1o prevent the same from being levied upon by execution, which is a, crime under the laws of the state of Pennsylvania, committed in the county of Potter, in said state-of Pennsylvania. That he has fled from justice in said state of Pennsylvania and taken refuge in the state of New York.” The return further set out “ A copy of said mandate or warrant under which the said Scrofford is restrained and imprisoned.” To that return the defendant made an answer in which he denied “ That the governor’s warrant returned by the said sheriff is a valid instrument or warrant, and denies that the said sheriff was justified in arresting and retaining this relator thereon, and avers that the said governor’s warrant was improvidently granted without the requirements provided by law or proof sufficient to sustain the same or to warrant its issuance, and is irregular, null and void.” The answer also stated several other facts, and was verified July 30th, 1890. ■ Counsel for the respective parties appeared before the special county judge on the return of the writ of habeas corpus and a hearing was had, and thereafter the proceedings were adjourned until July 31st. The parties again appeared and the defendant’s counsel insisted that it was the duty of the sheriff to produce the papers on which the warrant was issued. The counsel in behalf of the People insisted “ that it was the duty of the prisoner to produce the papers if they wanted to go back of the warrant.”
    Thereupon the judge held, viz.: “That the sheriff had the affirmative, and that they rested if they did not make application to introduce further testimony." Thereupon the defendant’s counsel moved that the prisoner be discharged. “ After argument, motion for discharge of prisoner denied, to which defendant’s counsel excepted.” “Proceedings adjourned to August 18,1890, 9 a.m., for the purpose of allowing prisoner to produce papers on which the warrant was issued, if they could be produced.” The parties again appeared on August 18th, and the defendant’s counsel stated, viz.: “ The papers could not be produced.” The counsel for the People asked leave “ to file an amended return setting out the supplemental warrant, dated July 31, 1890.” This was objected to by the defendant, and the objection sustained, and the motion was denied; the sheriff took an exception. “Sheriff’s counsel said they had not (any further evidence to introduce), and rested their case on the governor’s warrant.” The judge held that “If there was any further evidence to be introduced he would receive it, and consider all the points raised together at the end of the proceedings.” To this ruling the defendant’s counsel took an exception. Thereupon the defendant called two witnesses, who ,gave evidence, and thereafter the defendant again moved for his discharge, and apparently the' judge took time to consider, and prepared an opinion, the termination of which is as follows, viz.: '“We, therefore, hold that the warrant is invalid, and the relator must be discharged.”

      Chas. F. Tabor, attorney-general, and I. H. Maynard, for app’lts; H. F & J. Coupe, for resp’t.
   Hardin, P. J.

Article 3, in the Code of Civil Procedure, prescribes the practice in regard to writs of habeas corpus. Section 2015 provides that a person imprisoned or restrained in his liberty is entitled to a writ of habeas corpus. Section 2017 provides that the application for the writ must be made by a written petition, and mentions the courts and officers who may allow the same. Section 2031 provides that the court or judge before whom the prisoner is brought “ must, immediately after the return of the writ, examine into the facts alleged in the return, and into the cause of the imprisonment or restraint of the prisoner, and must make a final order to discharge him therefrom, if no lawful cause for the imprisonment or restraint, or for the continuance thereof, is shown. * * * ” Section 2058 provides, viz.: “ An appeal may be taken from an order refusing to grant a writ of habeas corpus, * * * or from a final order, made upon the return of such a writ, to discharge or remand a prisoner or to dismiss the proceedings.” Section 2059 provides, viz.: “An appeal from a final order discharging a prisoner committed upon a criminal accusation, or from the affirmance of such an order, may be taken in the name of the People by the attorney general or the district attorney.” By § 1991 of the Code of Civil Procedure it is provided that a writ of habeas corpus and writs of certiorari “ shall hereafter be styled, collectively, state writs; ” and by § 1995 of the Code of Civil Procedure it is provided that parties to a special proceeding instituted by a state writ may appear by attorney; and that section further provides that “ where the attorney general or the district attorney does not appear for the People, the attorney for the relator is deemed also the attorney for the People.”

We are of the opinion that the order is appealable and that the appeal was properly taken by the service of the notice of appeal upon the clerk and upon the attorneys of the defendant, and that the motion to dismiss the appeal should be denied. Section 1995 of the Code of Civil Procedure; § 1300 id.; § 799 id.; § 1 of tit. 5, chap. 8, part 1 of the Revised Statutes, 8th ed., p. 522; § 7 of the Revised Statutes, p. 523 ; § 2059 of the Code of Civil Procedure.

(2) If, upon the warrant before the judge upon the return of the habeas corpus, the copy of an indictment against the defendant or the affidavits which were presented to the governor, being the papers upon which he issued the rendition warrant, had been produced, the same might have been examined by the judge and an application made by the defendant that they “ were defective in not showing the nature, facts and circumstances of the transaction therein alleged and not disclosing the grounds on which are based the application of illegality ” might have been considered. In the case of The People v. Brady, 56 N. Y., 184, it appears “ the relator traversed this warrant, setting forth in his answer the affidavits which accompanied the requisition, and alleging, among other things, that the affidavits were defective, etc.” The court, therefore, in-that case looked into the affidavits which were-used before the governor and held they were insufficient. In the case before us, the affidavits or papers presented to the governor were not produced before the judge on the return of the writ of habeas corpus, and he derived no knowledge or information of their contents, and hence could not pass an adjudication thereon; nor are the affidavits, papers or copy of indictment used before the governor returned to us, and we are not in a situation to consider their contents and to determine from an inspection of the same whether they presented a proper case for the issuing of a rendition warrant or not. It is a familiar principle that a presumption obtains that a public officer has discharged his duty until the contrary appears. In People v. Pinlcerion, 17 Hun, 199, it was held, viz.: “ Where a warrant is issued by the governor for the rendition of a fugitive from justice, the court cannot go behind the warrant and inquire into the truth of the facts recited in it. The governor, in determining that the act of congress has been complied with, has no-jurisdiction to inquire into the truth of the charges made or to look outside of the papers presented to determine whether or not the person demanded is a fugitive from justice. The fact that the person has committed a crime in another state established conclusively that he is a fugitive from justice." It was also said in that case that where “ the rendition warrant is accompanied by the papers on which it issued, the question as to the sufficiency of those papers, as a compliance with the act of congress, is before the court.” That case was approved by the court of appeals in Draper v. Pinkerton, 77 N. Y., 245, and it was held that the “recitals in a warrant of the governor of this state for the arrest of a fugitive from the justice of another state are to be taken, at least prima facie, as true.” And it was further held in that case that where a return to a writ of habeas corpus sets forth such a warrant “ which contains recitals of facts necessary to confer authority, under the Constitution and laws of the United States, to issue it, it is a sufficient justification for holding the prisoner, without producing the papers or evidence on which the governor acted.” It was made an inquiry in that case whether the warrant is conclusive and whether the defendant may not by evidence show that the papers presented to.the governor were in fact defective. If it be assumed in this case that the defendant should have produced the papers upon which the governor acted before the judge, and upon their production it would have been shown defective and insufficient, the assumption cannot avail to the defendant, as the papers were not produced either by him or by the People, and the judge could not, therefore, determine as to their validity or insufficiency.

In People v. Donohue, 84 N. Y., 438, it was held, viz.: “Where the papers upon which a warrant of extradition is issued are withheld by the executive, the warrant itself can only be looked to for the evidence that the essential conditions of its issue have been complied with, and it is sufficient if it recites what the law requires.” In the opinion delivered in that case it was said: “ Where, however, the papers upon which the warrant is founded are not produced, but are withheld by the executive, in the exercise of official discretion and authority, we can look only to the warrant itself and its recitals for the evidence that the essential conditions of its issue have been fulfilled. People ex rel. Draper v. Pinkerton, 77 N. Y., 245.” In that opinion it was further said “ In this case, as in many others, the warrant only is produced and the papers on which it is founded are withheld. We are to assume that they are withheld in what seems to the executive the proper performance of official duty. * * * It is enough that the warrant recites what the law requires. We cannot add to it new conditions. * * * We see no reason why the warrant of the executive should be required tó go beyond a substantial statement of the existence of the conditions necessary to its issue. It was so held in an early case, In re Clark, 9 Wend., 212, and which we think may be wisely followed.” In Re Clark, it was distinctly held that a court or judge “ will not inquire as to the probable guilt of the accused ” upon the return of a writ of habeas corpus. And it was further held that “ the only inquiry is whether the warrant on which he is arrested states that the fugitive has been demanded by the executive of the state from which he is alleged to have fled, and that a copy of the indictment, or an affidavit, charging him with having committed treason, felony or other crime, certified by the executive demanding him as authentic, have been presented.” In the warrant issued by the executive in the case in hand, it was said that the governor of Pennsylvania represented that the defendant “ stands charged with the crime of removing his property to prevent the same from being levied upon by execution, which he certifies to be crime under the laws of said state, committed in the county of Potter in said state, and that he has fled from justice in said state and has taken refuge in the state of New York, and that said governor of the state of Pennsylvania having, in pursuance of the constitution and laws of the United States, demanded of me (the governor of the state of New York) that I shall cause the said Legrange Scrofford to be arrested. and be delivered to William Dannells, who is duly authorized to receive him into his custody and convey him back to the .said state; of Pensylvania.” The rendition warrant further stated that whereas, the said representation and demand is accompanied by the papers required by the statute of the United States to justify a surrender of, and whereby the said Legrange Scrofford is shown to-have been duly charged, with the said crime and with having fled from said state and taken refuge in the state of New York, which are duly certified by the said governor of the state ■of Pennsylvania, to be authentic and duly authenticated.” We think this last statement is more than a conclusion of law. It is .a plain and clear statement of facts, first, that the representation made by the governor of Pennsylvania “is accompanied by the papers required by the statute of the United States to justify the surrender of ” and that the papers show that the defendant has “ been duly charged with said crime, and with having fled from ■said state and taken refuge in the state of New York.”

It also contains the plain and clear statement that the papers “ are duly certified by the said governor of the state of Pennsylvania to be authentic and duly authenticated.” By § 2 of art 4 of the constitution of the United States, it was made the duty of the governor, on demand of the executive of Pennsylvania, to deliver up the defendant as “ a person charged ” with crime, to the end that he might be dealt with for the crime, and for the purpose “ be removed to the state having jurisdiction of the crime.” The performance of the duty imposed by the provisions of the constitution of the United States to which we have referred was further •enforced by the provisions of the act of congress, passed in 1793. The essential parts of which act are found in § 5278 of the Revised Statutes of the United States, p. 1027. In speaking of the case in which the governor acts under the provisions of the constitution, and the statute to which reference has been made, in Taylor v. Taintor, 16 Wallace, 370, the court said, viz. : “In such cases the governor acts in his official character, and represents the sovereignty of the state in giving efficacy to the constitution of the United States and the law of congress.” We see nothing in the papers before us to indicate that the duty imposed ■upon the governor was not properly performed, and we are of the ■opinion that the rendition warrant was valid. The performance of the duty of rendition is further imposed upon the governor by § 827 of the Code of Criminal Procedure. That section contains a provision to the effect that a person arrested under a warrant of rendition may have a writ of habeas corpus, if he claims not to be the particular person mentioned in said requisition, indictment, affidavit or warrant annexed thereto, or to the warrant issued by the governor thereon. And it is further provided that a summary hearing be had, and that if “the prisoner or prisoners shall be found to be the person or persons indicted or informed against, and mentioned in the requisition, the accompanying papers and the warrant issued by the governor thereon, then the court or judge shall order and direct the officer intrusted with the execution of the said warrant of the governor to deliver the prisoner or prisoners into the custody of the agent or agents designated in the requisition and the warrant issued thereon as the agent or agents upon the part of such state to receive him or them; otherwise to be discharged from custody by the court or judge.” The section also contains another very important provision in the following language: “ If upon such hearing the warrant of the governor shall appear to be defective or improperly executed, it shall be by the court or judge returned to the governor, together with a statement of the defect or defects, for the purpose of being corrected and returned to the court or judge, and such hearing shall be adjourned a sufficient time for the purpose, and in such interval the prisoner or prisoners shall be held in custody until such hearing be finally disposed of." It would seem by this provision that if the special county judge had been of the opinion that the. warrant of the executive was defective, he should haye complied with this provision, which required him to return the same to the governor with a statement of the defect or defects “ for the purpose of being corrected and returned to the court or judgeinstead thereof he'seems to have been of the opinion that upon discovering any defect in the warrant it was his duty to discharge the defendant.

However, as the learned special county judge has held that the recitals in the warrant were insufficient, and apparently, to a large extent, based his final action upon such conclusion, we are called upon to meet the question, which we do by holding that the recitals are sufficient in law. In Me Corkle v. Herrmann, 5 N. Y. Supp., 882; 22 N. Y. State Rep., 519, the question whether certain allegations were those of law or of fact was under consideration, and the court observed: “ So, in the case at bar, where the allegation is that due proceedings were taken by which these liens were filed, the pleader has complied with the rule of alleging conclusions of fact and not alleging the evidence from which such conclusions must be drawn.” We think the recitals in the warrant should have been taken prima fade true and sufficient. People v. Pinkerton, 77 N. Y., 245.

(3) We see no force in the suggestion made that there was a. misnomer. The defendant claimed on the hearing that he spelled his name with an “ a ”, and that in the governor’s warrant “ o was substituted in place thereof. Upon an inspection of the warrant, which was in writing, so far as the name was concerned, it was not entirely clear that the name was written “ Scrof ” instead of “ Scrafbesides, the witness Douglas, who was called by the defendant, and who was his brother-in-law, in the course of his testimony was shown the signature of the defendant written by him, and the witness added: “ It looks as if it was spelled with an ‘o’ there.” It may be observed that with the spelling either way the pronunciation may be such that the sound would be the same whether an “ o ” or an a ” was used. In People v. Pinkerton, 17 Hun, 203, there was a conflict in the evidence as to the real name ■of the defendant In disposing of that question Gilbert, J., said: “But taking the whole evidence, we think it was correctly determined that he is the person intended, whatever his real Christian name may be.” That case was approved by the court of appeals in 77 N. Y., 245, and the opinion of Gilbert, J., approved. Besides, if the special county judge had supposed there was any force in the criticism as to the spelling of the defendant’s name it would have been more seemly if, in accordance with the provisions of § 827 of the Code of Criminal Procedure, he had .returned the same to the governor, to the end that the clerical correction, if needed, might be made. By all that appeared before the judge it was quite apparent that the defendant was the person intended, and that if there was any mistake in the orthography as to his name, he was not prejudiced thereby. We think the circumstances relating to the spelling of his name, as they appeared before the judge, furnished no sufficient ground for the discharge of the defendant These views lead to the conclusion that the -order should be reversed.

Motion to dismiss the appeal denied.

Order reversed.

Martin, J., concurs; Merwin, J., not voting.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    John Fitzgerald, Adm’r, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Bailroads—Negligence.
    An action to recover for the death of a brakeman caused by coming in contact with a low bridge while on the top of a car cannot be maintained, although the company did not comply with the statute as to erecting warning signals, where it appears that the deceased had his attention called to the bridge on previous occasions and had an opportunity to observe its condition and the absence of warning signals and no proof of care and caution on his part is given.
    Yerdict for the plaintiff at the Herkimer circuit for $3,000. Order denying motion for a new trial on the minutes. Appeal from the judgment and order.

      O. D. Prescott, for app’lt; Hadley Jones, for resp’t
   Hardin, P. J.

On the morning of November 11th, 1887, plaintiff’s intestate, Thomas Fitzgerald, then a brakeman in the employ of the defendant, was passing over its road eastwardly from Syracuse, and between five and six o’clock in the morning the train in passing eastwardly from Green’s Corners and distant from the station of Green’s Corners 5,153 feet, passed under a superstructure known as “ Wheeler’s Bridge.” Just before the train reached the bridge the intestate passed from the engine to the tender and from thence up on to the first car, where he was last seen alive. Shortly after the train had passed from under the bridge he was discovered laying a little south of the walk-way near the center of the car, apparently dead. The train ran on down to Rome. He was at the time acting as head brakeman on the train. When passing Green’s Corners he sat on the seat with the fireman, who had some conversation with him, and just east of Green’s Corners he remarked to the fireman: “ YTe arc going down a grade out here, are we not ?” the fireman replied in the affirmative; the fireman told him that he need not get pn top as it was not necessary to hold it going down that, grade ” ; he then went and “ stood in the gangway between the engine and the tank.” The fireman testifies that he repeated to the-deceased three times “ that there was no necessity"’ to “ go on top and the fireman further testifies: “ The engineer was then sitting on his side opposite me on the right hand side and watching in front." The fireman further testified: “After I had called to him three times I saw him standing on the top of the car next to the tender. He was standing clear up on top of it. I spoke to him three times in all. First, before he got off the seat, and twice after. I called to him the third time when he was climbing up the ladder to get on the car. I called him again to come back, that he shouldn’t get up there; that there was no peed of setting the brakes. When he commenced climbing up on to this car he was perhaps about half way between the station and the bridge ; I should judge it was between five and six o’clock A. M. After I saw him standing on top of that first car I did not notice him again until after we had passed the bridge. I then climbed up the ladder till I could see on this first car. I saw him lying down very near the center of the car. I went back and reported and the engineer blew brakes.”

The fireman testifies:

“ It was a cold, disagreeable, cloudy morning; it was not fairly daylight yet; I won’t say as to whether there was difficulty in seeing a great ways; ” the train had thirty-two cars, twenty-nine of which were refrigerator cars; the refrigerator cars are twelve feet, five inches above the tracks; ordinary cars are ten feet, nine-inches.

There was no evidence given upon the trial of the. height of the deceased Evidence was given tending to show that there were no “tell-tales” or warning signals erected or maintained west of the bridge to give warning that the train was approaching-a low bridge. It was, therefore, insisted in behalf of the plaintiff that the defendant had not complied with the provisions of chap. 439 of the Laws of 1884. By the second section of that act it is provided that every steam railroad shall “erect and thereafter maintain such suitable warning signals at every low bridge or structure which crosses the railroad above the tracks, where such warning signals may be necessary for the protection of employes on top of cars from injury,” and our attention is called to Willy v. Mulledy, 78 N. Y., 314, where it was said that “ when a statute imposes a duty upon a public officer it is well settled that any person having a special interest in the performance thereof may sue for a breach thereof, causing him damage, and the same is true of a duty imposed by statute upon any citizen; ” and it is insisted in behalf of the respondent that the deceased had a right to suppose that the defendant had complied with the provisions of the statute to which reference has been made. However, if the deceased had become aware of the fact that there had not been a compliance with the statute; that no “ tell-tales ” or signals or warnings had been erected west of the bridge, it was his duty to use care and caution in approaching the bridge to avoid receiving injuries therefrom. The case seems to be barren of any evidence indicative of any watchfulness or care on the part of the deceased to avoid the injury which came to him. It therefore becomes important to inquire whether he was aware of the fact that the bridge was such an one as required him to avoid an erect position in passing under it, he being upon the top of the car.

It appears by the testimony of the plaintiff’s witness, Mitchell, who was a conductor upon the train, that “ on the morning of November 11, 1887, the weather was somewhat stormy; it was dark ; ” it snowed and blew from the northwest; and it further appears “plaintiff’s intestate went up the road westerly with me; at the Wheeler bridge we were in the caboose together in the evening; it was between daylight and dark, so you could see; our lights were lit in the caboose.”

The witness further continues, and testified as follows : “We passed Wheeler’s bridge seven to ten minutes after leaving Rome, at 5.20 ; I understood this was Fitzgerald’s first trip as a brakeman on through freight; while in the cupola I tola him we were then going up Wheeler’s grade; that commences just a little ways out of Rome; I told him that it extended beyond the bridge ; he said: There is a bridge above here somewhere, isn’t there ? ’ I told him there was, and I would show it to him' as soon as we got there; I showed him the bridge, the one spoken of on this trial; I told him to look out for all bridges; that I didn’t know but that the bridge might clear him on an ordinary car, and on a higher car it might not; that I would not be positive as to either; he said he had been up at Wheeler's bridge before; I asked him how, and he said he had been there on a work train; as we reached the bridge I spoke of it to him, of its being the Wheeler bridge; the 10th was a pleasant day; the light was then so we could see the bridge very plainly; the lookout or cupola in the top of the caboose is higher than the highest cars; he stayed in the cupola with me until we reached De Witt.”

According to this witness’ testimony the deceased had an opportunity to inspect, observe and leam the condition of the bridge; and according to this witness’ testimony the deceased while engaged upon working trains on previous occasions in the employ of the defendant had been in proximity with the bridge. If this evidence is accepted as it is stated, it seems to indicate that the deceased was aware, not only of the fact that the bridge was there, but that it was a low bridge, and that apparently he learned that there were no warnings or tell-tales to direct his attention when . approaching from the west. The evidence brings the case, if believed, within the principle laid down by 'the court of appeals, second division, in Williams v. D., L. & W. R. R. Co., 116 N. Y., 632; 27 N. Y. State Rep., 760. In the opinion delivered in that case it was said : “ The only question which we shall consider in this case is as to whether or not the plaintiff was guilty of con-tributary negligence, and this depends upon the question as to whether he knew or ought to have known that this bridge was low, and that he could not pass under it while standing upon the top of the box car.” The learned judge after quoting the evidence in that case proceeds to observe: “ it is quite evident from this testimony that he had, on numerous occasions, passed under this bridge whilst on top of the train, and if so, he must have known, had he exercised ordinary care and observation, that it was not of sufficient height to permit a person to pass under it whilst standing upon the top of a box car of the company. * * * And inasmuch as such negligence appears from his own testimony, the exception to the refusal of the defendant’s motion for a nonsuit was well taken.”

In Ryan v. Long Island R. R. Co., 51 Hun, 608; 22 N. Y. State Rep., 655, it was held that “ the plaintiff is not entitled to recover, as it was shown that the deceased had passed these bridges for three months, and that it was fully understood by the employes of the defendant,” the conditions of the signals or warnings which were placed, and the omissions of others which the plaintiff insisted were necessary; although that case is distinguishable from the one before us, in that the deceased had been for a greater length of time accustomed to pass and repass the bridges where the accident occurred; and while there were some warning signals and others were omitted, it was said “ that the warning signals were apparent and the deceased assumed the risk of the omission of any others.” It was suggested by the learned counsel for the respondent upon the argument, that the jury had a right to reject and disbelieve the testimony of Mitchell because he was a conductor in the employ of the defendant, but it appears the plaintiff called him as a witness and thereby vouched for his credibility, Hunt v. Fish, 4 Barb., 324; and nothing is to be perceived in his testimony rendering the same improbable. Nor do the circumstances detailed by him give rise to suspicion that he has stated anything other than the truth. While the learned judge carefully commented upon the evidence, yet in speaking of the question we have been considering he perhaps did not with his usual accuracy and clearness express to the jury the rule of law applicable to the evidence which has been adverted to ; he said, '“then tlieie is another thing which is suggested why he was guilty of contributory negligence, and that is that he had been informed that there was a low bridge, and, therefore, he was negligent in not looking out for it and escaping. That is a question for you as the other is. Of course, if he did know and realize that at that particular point there was this low bridge, then you may say whether he exercised ordinary care or not in passing along, standing upright upon the car, without recollecting the bridge and getting out of the way. As has been suggested, merely forgetting what the condition of things was, forgetting that he was in a dangerous locality, will not do, because that is his negligence.” Later on the judge expressly refused to charge: “ that there is no proof in the case ” that the deceased “ did not know the danger of the Wheeler bridge."

These views lead us to the conclusion that a new trial should be ordered.

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

Martin and Merwin, JJ., concur.


text:
    Jennie J. Holcomb, Resp’t, v. The Town of Champion, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Highways—Negligence—Absence of guard to embankment.
    / In an action to recover for injuries sustained by being precipitated down an unguarded embankment on a highway, where the evidence showed that plaintiff’s horse shied suddenly and overturned the buggy, Reid, that the court properly submitted the questions of negligence to the jury, and limited the question of the negligence of the highway commissioners to the failure to have a guard or barrier at that place.
    2. Same—Contributory negligence—Charge.
    A witness having testified that plaintiff’s husband had several times told her that the horse was not safe for her to drive, the husband denied that he had ever done so. Reid, that the court properly refused to charge, at defendant’s request, that the jury were at liberty to find the horse was unsafe for plaintiff to drive and that she knew -it, if they believed the evidence of the first witness, and submitted that question to the jury to determine as a question of fact.
    Verdict at the Jefferson circuit for $2,200 in favor of the plaintiff. Motion for a new trial made on the minutes and denied. Judgment entered on the verdict. Appeal from the judgment and the order. Plaintiff received injuries on the 27th day of June, 1887, while driving a horse and wagon with her two daughters, one fourteen and the other nine, from her home towards her brother’s residence. She came to a gulf or ravine about a half a mile from the village of Champion. Deer Lick Creek runs through the gulf. There is an embankment raised some distance above retaining walls, and the traveled track was about twelve feet in width, and gradually sloped off to the retaining walls. The distance from the top of the walls down to the adjacent ground was some ten feet. Plaintiff when she came in sight of the embankment where the injuries occurred had the reins in her hand, and the horse turned suddenly to the right, tipping over the buggy, and the occupants were precipitated, and plaintiff received the injuries of which she complains. The facts and circumstances attending the accident are detailed by the plaintiff and her daughter, Julia. Some stone had been left by the highway commissioners, and apparently the horse discovering them pricked up his ears and quickened his motion and “ sheered right out of the road.” Julia testifies, viz.: “ After the horse commenced to move to the right he didn’t move ahead any at the same time. He turned right straight off. He turned right straight to the right, short off, jumped right off. It was done suddenly. He jumped toward the side I was sitting on.” Considerable evidence was given on the trial as to whether the horse was blind or not, and as to his character and disposition. Some of the testimony given upon the trial has been omitted from the evidence, “ for the reason that the appellant stipulates that all grounds for a reversal of-a judgment and order are waived, excepting: 1st. Whether the negligence of the defendant proven caused the injury ? 2d. Whether the plaintiff herself was guilty of contributory negligence? 3d. Whether the court improperly refused to instruct the jury concerning the testimony of Henry Ingraham.” It was “ conceded by the appellant that the court properly submitted to the jury the question, whether the highway was in an unsafe and dangerous condition for public travel at the place where the accident occurred: and that the court also properly submitted to the jury the question, whether the commissioners of highways of the defendant negligently allowed the highway to remain in an unsafe and dangerous condition for public travel; and it being further conceded by the appellant that the finding of the jury adverse to the defendant upon these two questions is conclusive upon the appeal." That it was “conceded by the appellant that the court properly submitted to the jury to determine the extent of her injuries, and that the finding of the jury upon this branch of the case, and the amount of damages awarded the respondent, if it is legally liable therefor, is conclusive upon this appeal.”

      Mullin & Griffin, for app’lt; Porter & Walts, for resp’t.
   Hardin, P. J.

When the trial judge delivered his charge to the jury he stated, viz.: “A recovery is to be had here, if at all, not by reason of the negligence of the town, but by reason of the negligence of the commissioners of highways with reference to the road.. So that there is to be a finding on your part, in order to enable the plaintiff here to recover in the first place, that the commissioners of highways in the town of Champion were guilty of negligence in not keeping this highway in a reasonably safe condition for public travel, which negligence caused this accident and these injuries. * * * If you find they were negligent, and that negligence caused the injuries, then the plaintiff may recover for those injuries against the town, unless the plaintiff was herself guilty of some negligence which contributed to produce the injuries.” Later on in the course of the charge, the judge observed : “ The single thing which the court permits you in this case to determine was negligence, if anything was negligence, was the failure to have on either side of this embankment, on either side of the road, a guard or fence or rail, so that if horses should become partially unmanageable and shy, that they would be, travelers would be protected from going off the embankment by the railing or fence. You may not charge the commissioners with negligence for anything else in this case, if you do for that, except the failure to have some guard or rail or fence on either side of this embankment." We think the evidence warranted the charge given in the language which we have quoted.

Our views upon these questions were expressed in Maxim v. Town of Champion, 50 Hun, 88; 23 N. Y. State Rep., 949; affirmed 119 N. Y., 626; 28 N. Y. State Rep., 978. The damages sustained by the plaintiff in the case just cited arose “from walking off from a high unguarded bridge or embankment in one of . the public highways of the defendant,” and being the same highway upon which the plaintiff in this case was injured. We think the learned counsel for the appellant was warranted in stating in their points that, “ In view of the decisions upon this subject it undoubtedly may be assumed the court properly submitted to the jury to decide whether such omission under the circumstances constituted actionable negligence. And it may be assumed also that the finding of the jury adversely to the defendant upon this branch of the case will not be disturbed on the appeal.” We think it was a question of fact on all the evidence for the jury to determine whether or no the negligence of the highway commissioners, to which we have referred, was the proximate cause of the injuries received by the plaintiff.

In Kennedy v. The Mayor, 73 N. Y., 367, it seems to be laid down that the duty of protecting animals by a guard or barrier is not restricted alone “to animals which, at the time of their loss, are docile and obedient and under absolute control of the owner.” In the opinion it is said: “ The shying of a horse, his backing or turning in consequence of a sudden fright or other cause, so as to be for a moment beyond the control of the one having him in charge, are among the most common occurrences. That a horse may on a particular occasion do this neither shows that the animal is vicious or generally unsafe, or that the owner is careless. It is against accidents which may happen from these common incidents in the use of horses upon docks that a barrier is especially needed.” We suppose no less stringent rule or reasonable requirement obtains in respect to highways.

(2) Whether the plaintiff was free from contributory negligence or not was a question of fact for the jury. Her testimony and the testimony of her daughter Julia bearing upon that question, fairly presented a question for the jury to determine; and that question was carefully, cautiously submitted by the trial judge to the jury, and we see no occasion to disturb their verdict upon that question.

(3) When Henry Ingraham was upon the stand he gave evidence tending to show that the husband of the plaintiff had “told her lots of times that the horse was not safe for her to drive.” Later on the husband of the plaintiff was called as a witness, and testified that he never told his wife “ not to drive the horse, stating that he was not safe for her to drive.” The counsel for the defendant requested the court to charge the jury that they were “ at liberty to find the horse was unsafe for the plaintiff to drive, and that she knew it,” if the jury believed the evidence of the witness Ingraham as to the interview detailed by him. To that request the judge observed, in his refusal, that it was for the jury to determine as a question of fact whether or no the horse was unsafe for the plaintiff to drive, and that she knew it. We think the exception taken to the position assumed by the judge in that aspect of the case presents no error. The practice of seizing upon detached portions of evidence which are the subject of contradiction and requiring the trial judge to charge conditionally in-respect thereto' that if a certain portion of the evidence thus brought into dispute is believed by the jury then that the verdict should be in accordance therewith, is not to be commended. In this case the trial judge had very fairly and fully called the attention of the jury to the leading questions of fact involved in the case, and we think he was not called upon to yield to a request which required him to make fractional representations.

Having discovered no error in the course of the trial we must allow the verdict to stand.

Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    Conrad Sipfle, Jr., et al., Resp’ts, v. Alfred Isham, Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Partnership—Proof of—Findings of referee.
    In an action on a note made in the names of defendants but executed by defendant S., appellant denied that he was a partner or ever authorized the making of the note. On a former appeal it was held that he eould not be held liable as the referee did not find that there was a partnership. On the second trial there was evidence of a conversation with him in which he said that he and S. were going in as partners in the purchase of certain patent rights which were valuable, and. the referee found that defendants were partners. Held, that as there were some evidence to sustain the findings, the appellate court would not interfere therewith.
    Appeal from a judgment entered upon the report of a referee in Onondaga county in favor of the plaintiffs.
    Action on a promissory note given for $1,200. Upon the hearing the testimony of Byron E. Loomis was given in respect to a conversation Detween “ Isham and Stimpson in reference to Burdock’s Patent Refrigerator and Butter Cooler in San Francisco.” Among other things the witness testified: “I said to Mr. Isham, ‘ I suppose you have a real good thing; ’ he said: there aint money enough to buy it; we have an independent fortune out of it; Mr. Stimpson and I are going to have it; ’ I said: ‘ It will take plenty of money to run it; ’ he said: ‘ we have plenty of money; ’ he said: ‘ we are going in as partners; we have the states of Louisiana and New York and Mr. Stimpson is going there to sell territory of the places, and we have made arrangements with Mr. Bugby to that effect.’ "" * * They were in together, and in all his conversation he stated ‘we’; he was the most enthusiastic of -the two." This evidence was repeated in substance on cross-examination. The witness added in his direct examination : “ The whole conversation was that we are going to make a fortune out of this business: in fact, I believe he told me that they had bought two states.” In his cross-examination he stated : “We are going to do this; we have bought the two states; he said: we are going in as partners; ’ this is the impression I got; the exact words it would be difficult for me to remember." The referee found as a matter of fact: “ That the defendants were copartners as far as the plaintiffs are concerned at the time of the execution of said note of $1,200, and prior thereto, and at the time of making the contract out of which the note grew.” As a matter of law he found: “That the plaintiffs for the purposes of this action are co-partners.” Second. That the defendants Albert S. Stimpson and • Alfred H. Isham, “ became and were partners under the name of Stimpson & Isham in the particular venture of the purchase of the patent of the states of New York and Louisiana, and the working of the same in said states.”

      E. A. Hash, for app’lt; Homer Weston, for resp’ts.
   Hardin, P. J.

When this case was before us on a former peal, 46 Hun, 366; 12 N. Y. State Bep., 359, among other things, we said: “ The referee does not find that Isham and Stimpson were copartners, nor that Stimpson, who made and signed and delivered the note to plaintiffs as a copartner or otherwise, was authorized by Isham to make the note in suit. * * * The plaintiffs planted themselves upon the averment that Isham was a partner. That was not proven; nor is it found by the referee.” Upon the proofs given and the findings made by the referee found in the present appeal book, the case differs quite essentially from the case found in the former appeal book. It may be observed that the evidence is slight tending to sustain the conclusion of fact found by the referee in the last trial. However, as there is some evidence to sustain the findings we are not inclined to interfere with the same. The referee has carefully considered the evidence, and weighed it in the light of the discussion of the authorities bearing upon the questions involved, and delivered an opinion reaching a conclusion upon the evidence which we are not inclined to disturb.

(2.) We have looked at the rulings made upon the trial and we are of the opinion that they do not present such prejudicial error as require us to disturb the report of the referee.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    Giles Everson, Resp't, v. Fred C. Eddy, Rec’r of the Syracuse Screw Co., Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Judgment—Reference.
    Where the reference was of all the issues to he heard and determined by the referee, it is proper to enter judgment upon filing his report.
    2. Corporations—Mortgage—Consent.
    It is not necessary that the requisite consents of stockholders to the making of a mortgage by a corporation should be filed before execution of the mortgage; it is sufficient that they be executed on the same day and be recorded with the mortgage.
    3. Same—Validity of mortgage.
    A mortgage executed by a corporation cannot be held invalid under R. S.. pt. 1, chap. 18, tit. 4, § 4, where the corporation at the time of making it was not insolvent and the mortgage was not made in contemplation of insolvency.
    Appeal from a judgment entered in Onondaga county, upon the report of a referee, by an order made at special term on the 22d day of February, 1889. The referee was appointed “ to hear, try and determine ” the issues, “ and determine all the questions in the action.”

      J. William Wilson, for app’lt; M. M. Waters, for resp’t.
   Hardin, P. J.

Upon filing the referee’s report with the clerk it was regular to enter a judgment in accordance therewith. Section 1228 of the Code of Civil Procedure provides: “ Where the whole issue is an issue of fact, which was tried by a referee, the report stands as a decision of the courtand that section provides that upon filing the report, judgment upon such report “ may be entered by the clerk, as directed therein, upon filing the decision or report.”

(2) The Syracuse Screw Company, on the 30th day of June, 1885, made, executed and delivered a mortgage to the plaintiff to secure the sum of $10,000. It was acknowledged or proven on the 21st of July, 1885. Appended to the mortgage and accompanying the same was the consent of stockholders in the corporation, “ owners of more than two-thirds of the capital stock of said corporation,” which consent was acknowledged on the 21st day of July, 1885, and recorded, in connection with the mortgage, December 28, 1885. We think the consent was valid. In Rochester Savings Bank v. Averell, 96 N. Y., 476, affirming 26 Hun, 643, it was said: “ The consent of stockholders is the important and essential thing. * * * Would the corporation be heard to allege as a defense to a mortgage that, although assented to, the evidence of the assent was not recorded ? We think not.” Applying the doctrine of that case to the one in hand, we are of the opinion that the contention made by the receiver, that the “ proper statutory steps were not taken in the execution of the mortgage, and that the assent of the stockholders must first be filed in the clerk’s office of the proper county,” must be overruled.

(3) . The appellant contends that the mortgage in question was void at the time of its execution and delivery, and he relies in support of his position upon § 4, title 4, chap. 18, part 1 of the Revised Statutes. In Brouwer v. Harbeck, 9 N. Y., 593, it was said, viz: “ So long as insolvency neither exists nor is contemplated, the corporation, like an individual, can appropriate its means to the payment of its debts in such order and in such amounts and proportions as the directors please.”

The referee has found: “ That at the time of the making, execution, acknowledgment, delivery and recording of said mortgage, the said defendant, the Syracuse Screw Company, was not insolvent, and that said mortgage was not made in contemplation of insolvency.” Evidence was given upon the hearing tending to support the finding just quoted. That finding presents for our consideration a case quite unlike Kingsley v. First Nat. Bank of Bath, 31 Hun, 333, as in that case there was clear evidence of the insolvency, and in the course of the opinion it was said: “ The purpose of all the parties participating in this transaction cannot be disguised.” And it was further stated that the insolvency of the corporation was clearly made out Again it is found by the referee in the case before us, that “ Every debt in existence against the defendant, The Syracuse Screw Company, was fully paid prior to the appointment of the defendant as receiver,” and “ That said receiver does not represent a single creditor whose debt was in existence when the said plaintiff’s mortgage and the assent thereto was made, executed, acknowledged, delivered and recorded.”

In Sheldon H. B. Co. v. Eckemeyer H. B. Co., 90 N. Y., 618, where a somewhat similar question was before the court under the provisions of the Revised Statutes already referred to, it was said: “ Ho creditor, or person representing a creditor, seeks to impeach such transfer. If the section has any application to this case, there are no findings or requests to find which can raise the question.” It may be observed in passing that the mortgage in question as a lien had ceased to be operative as the property covered by it had been sold and delivered by virtue of a decree in foreclosure upon prior mortgages, and the proceeds of the sale apparently were insufficient to satisfy those mortgages, and the . beneficial effect of the judgment in favor of the plaintiff brought here by this appeal seems to rest in the provisions establishing a debt against the corporation.

(4) We see no occasion to disturb the order confirming the report of the referee. As already observed the reference was of all "the issues, and to the referee to hear and determine. As to this appellant the decision of the referee was the decision of the court. Ho question was made upon the argument as to the order granting an additional allowance to the plaintiff, hence we need spend no time in considering the propriety of that order.

Judgment and orders affirmed, with costs to the respondent payable out of the fund.

Martin, J., concurs ; Merwin, J, concurs in result.


author: Hardin, P, J. Martin, J., (dissenting.)

text:
    Charles A. Burt, App’lt, v. The Oneida Community. Limited, et al., Resp'ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    ■Costs—Referee’s fees—Stipulation.
    Where the parties to an action have stipulated that the referee might fix his own fees without regard to the provisions of the statute, and the successful party, in reliance thereon, has paid to the referee the amount so fixed by him, he will be protected by an allowance of the sum so paid, in the absence of proof that it was excessive, unreasonable or improper.
    (MabtiN) J., dissents.)
    Appeal from an order of the Oneida special term sustaining a taxation of $500 for the fees of a referee. Upon the hearing before the referee a stipulation was entered in his minutes to the effect that the referee might fix his own fees; and thereafter a stipulation was signed by the parties in the following language : “ It is hereby stipulated that the referee in this action may fix the ■amount of his fees without regard to the provisions of the statute. Dated July 10,1889.” This stipulation was signed by the parties "to the action and also by their attorneys. The trial was a long •one and some 237 pages of evidence was taken by a stenographer. There is no proof indicating that the amount charged by the referee was excessive, unreasonable or improper in its extent There is proof that the sum has been paid to the referee by the successful party relying upon the stipulation made by the attorneys and by the parties.

      J. & Q. Van Voorhis, for app’lt; W. G. Tracy, for resp’ts.
   Hardin, P, J.

I think the facts presented upon the motion for taxation are such that this case is distinguishable from those cases cited in the opinion of Brother Martin. Here, in addition to the stipulation entered in the referee’s minutes, there is a formal stipulation of the parties confiding the amount to be charged by the referee. The parties acted upon that stipulation; the successful party, having in mind that stipulation when the amount-of fees were stated by the referee, relied upon the stipulation and paid the same to him. It is a familiar principle that a party may waive a constitutional provision or a statutory provision in his own interest or benefit or protection. Evidently the parties intended that the referee should, in his performance of his duties as referee, be paid such sum as he deemed reasonable for his services as a referee. It is not too much to say that the referee performed the services upon the reliance of the stipulation so given. It not too much to say that the party who paid the sum to the referee after he had fixed it, relied upon the stipulation..

The facts and circumstances disclosed are such as to indicate that no public policy was violated either by the referee or by the parties. Under the circumstances disclosed I hesitate to come to a conclusion that shall disregard the action of the parties and the referee. The party who paid the fees of the referee having relied on the stipulation of his adversary, it seems to me ought to be protected by an allowance of the sum so stated, fixed and determined by the referee in accordance with the assent of the defeated party coupled with the approval of his attorney and counsel. I do not, therefore, favor a reversal of the order of the. special term.

Order affirmed, with ten dollars costs and disbursements.

Merwin, J., concurs.

Martin, J., (dissenting.)

Appeal from an order affirming the-taxation of costs by the clerk of Madison" county which included the sum of $500 for referee’s fees. The question on this appeal relates only to that item. There was a stipulation in this case, signed by the parties and their attorneys, that the referee might fix the amount of his fees without regard to the provisions of the statute. On the taxation before the clerk there was no proof showing the number of days the referee whs engaged in the trial of the case or in the examination of it.

Where opposition is made on taxation of costs to the disbursements for referee’s fees, the charge should be supported by affidavit The number of days necessarily spent in the business of the reference should be thus shown. The general affidavit of disbursements is not sufficient Shultz v. Whitney, 9 Abb., 71; 17 How, 471; Brown v. Windmuller, 36 Supr. Ct. Rep. (J. & S.), 75; 14 Abb., N. S., 359; Watson v. Gardiner, 50 N. Y., 671.

The Code of Civil Procedure provides that a referee is entitled to six dollars for each day spent in the business of the reference, unless a different rate of compension is fixed by the consent of the parties manifested by an entry in the minutes of the referee ■or otherwise in writing. Section 3296. By the stipulation in this -case no rate of compensation was fixed. It was left for the referee •to fix his own compensation. The stipulated consent was not in conformity with the statute and was insufficient to justify the clerk in taxing the referee’s fees at that amount. Bank of Cooperstown v. Tamajo, 77 N. Y., 476.

In the case cited, Andrews, J., said: “The agreement to leave it to the referee to make such charge as he deemed reasonable, left the whole subject open and indefinite. It did not fix any rate of compensation. It simply left it to the referee to determine and hx the value of his own services, each party impliedly assenting to be bound by his decision. To hold that the agreement in question was an agreement fixing a rate of compensation would not be justified by any fair interpretation of the transaction. The attorneys in the case, by their agreement, put upon the referee a responsibility which the statute places upon the parties themselves. If, in view of the importance of the case, or the character and standing of the referee, counsel deemed the rate of compensation fixed by the statute to be inadequate, they could agree upon a larger rate. One of the parties to the action would be compelled in the end to bear the increased expense of the litigation in consequence of such agreement. It is but just to clients that agreements made by counsel which may enhance the burden and costs of litigation should be made upon their judgment and professional responsibility, and the attempt in this case to impose an indefinite responsibility upon the parties to the action, depending upon the decision and judgment of the referee in a matter in respect to which he had a personal interest, ought not to be sanctioned. The statute,'wisely, we think, requires a formal written agreement between the parties before either can be subjected to the payment of referee’s fees beyond the prescribed rate. There is no ground for questioning the bona fides of the counsel or the referee in respect to the transaction. But the question is whether the agreement made was in conformity with the statute, and we think it was not. The statute mating compensation to referees beyond the statute rate to depend upon a written agreement between the parties fixing such increased rate, is in harmony with "the general policy of the law that costs, when allowed, shall be according to a fixed and definite rule and shall not depend as to amount upon the discretion of any court or officer.”

The doctrine of the Tamajo case was also recognized in Mark v. City of Buffalo, 87 N. Y., 184, 188, where Judge Finch said: “ In that case we decided that, the attorneys could not agree to leave the referee to fix his own rate of compensation, but, if an agreement is made at all for a larger rate, it should be made upon "the ‘ judgment and professional responsibility ’ of the counsel,’ who could agree upon a larger rate.’ ” See, also, Chase v. James,, 16 Hun, 14; Estate of Gilman, 12 Civ. Pro. R., 179: 10 N. Y. State Rep., 184.

It seems to me that the authorities cited clearly establish that the stipulation in this case was invalid, as it did not fix any rate of compensation to be paid the referee; that the respondent, was not entitled to have the referee’s fees taxed at the amount-allowed by the cleric, and that the special term erred in denying the plaintiff’s motion. These considerations lead me to dissent from the opinion of my brother, Hardin, in this case.


author: Martin, J. Hardin, P. J.

text:
    Nathan Rightmire, App’lt, v. James Shepard, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Trespass—Involuntary.
    An escape of cattle upon plaintiff's lands while being driven along a highway by defendant, where the latter immediately pursued and drove them off as soon as possible, is an involuntary trespass, for which the defendant is not liable.
    2. Same—Destruction op pence.
    In an action for trespass, there was evidence that defendant said he tore down plaintiff’s fence, and that it looked as if it had been torn down. Defendant testified that he told plaintiff that the fence would have to be removed, and that he tore it down to repair the highway, and there was no evidence that plaintiff did.not consent thereto. Held, that such removal would not be presumed to he wrongful in order to reverse the judgment.
    Appeal from a judgment of the county court of Tioga county, affirming a judgment entered in a justice’s court against the plaintiff for costs.
    The action was to recover damages alleged to have been occasioned by the defendant’s cattle while trespassing upon the plaintiff’s land and for destroying the plaintiff’s fence.

      Charles A. Clark, for app’lt; R. F. Bieber, for resp’t
   Martin, J.

The appeal book shows that the defendant testified that his cattle were not on the plaintiff’s premises at any time except when he was driving them along the highway which was on 'the side of the plaintiff’s lot Whether they were upon the plaintiff’s premises at other times was, therefore, a question of fact for the jury, and its determination of that question in defendant’s favor should not be disturbed.

The proof also discloses that while the defendant was driving his cattle along the highway they sometimes escaped to the plaint- • iff’s lot; that on those occasions he pursued and drove them off as soon as possible. Such an entiy upon the plaintiff’s premises was but an involuntary trespass, for which the defendant would not be liable. The Tonawanda R. R. Co. v. Munger, 5 Den., 255; Goodwyn v. Cheveley, 4 Hurl &Norm., 631; 2 Waterman on Trespass, § 872.

We do not think the judgment should be disturbed because the-jury did not allow the plaintiff damages for the removal of the defendant’s fence. The proof upon this question was very meager. One witness testified that the defendant said he tore it down. The plaintiff testified that the fence looked as if the defendant had hitched his team to it and torn it down, and that the damage to the fence was four or five dollars. The defendant testified that he told the plaintiff the fence would have to be removed, and that he tore it down to repair the highway. There is no evidence to show that the removal of this fence was wrongful nor that the plaintiff did not consent'to its removal. That it was wrongfully removed should not, we think, be presumed to enable us to reverse the judgment in this case. The presumption, if any, is that it was properly removed by the defendant to enable him to repair the highway, and after verdict a presumption that will uphold a judgment should obtain rather than one that would result in a reversal. Moreover, the evidence tended to show -that the fence was of little value, and we cannot say from it that the damages were more than .nominal, and a judgment should not be reversed where the damages are only nominal. Stephens v. Wider, 82 H. Y., 351.

We think the judgment should be affirmed.

Judgment affirmed, with costs.

Merwin, J., concurs.

Hardin, P. J.

Under some circumstances a judgment for nominal damages will be reversed. Countryman v. Lighthill, 24 Hun, 405. This case does not fall within the exception, and, therefore, I concur in the foregoing opinion.


author: Per Curiam.

text:
    Clark Surdam, App’lt, v. Wesley Ingraham and William Perkins, Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Witnebs—Impeachment.
    Where the evidence elicited on the cross-examination of a witness does not tend to contradict, discredit, vary, qualify or explain the testimony given by him on the direct, an affidavit made by him containing contradictory statements is inadmissible to impeach him.
    Appeal from judgment in favor of defendants.

      A. D. Wales, for app’lt; A. A. White, for resp’ts.
   Per Curiam.

The court properly excluded the evidence offered by the plaintiff as to the title and possession of the premises where the affray occurred, and the charge upon that subject was proper. Ho issue as to such title or possession was made by the pleadings or properly involved in the trial.

It was not error to exclude the affidavit made by Wesley and William Ingraham. The only theory upon which it is claimed that it was admissible is that it tended to impeach the testimony P of the witness William Ingraham. This witness, on his direct examination, testified to nothing which was at variance with the matters stated in the affidavit He had not testified that the old man Surdam struck at his brother Wesley, nor that he did not He had given no testimony upon the subject, either upon his direct or cross-examination, when he was dismissed from the witness-stand.^ He was subsequently recalled bjy the plaintiff, and, upon plaintiff’s examination, testified: “ Old man Surdam didn’t come for me nor strike me at all; he did not strike at my brother Wesley at all, that I saw; I was hit with an ax.”

If we assume that the affidavit offered was inconsistent with this evidence, still, as the evidence elicited by the plaintiff on this last examination did not tend to contradict, discredit, vary, qualify of explain the testimony given by the witness on his direct examination, it was new and independent matter drawn out by the plaintiff, and did not furnish a basis for the introduction of proof that the witness had made contradictory statements. People v. Cox, 21 Hun, 47; aff’d, 83 N. Y., 610; Sherman v. D., L. & W. R. R. Co., 106 N. Y., 542, 547; 11 N. Y. State Rep., 318; McCallan v. The Brooklyn City R. R. Co., 48 Hun, 340; 15 N. Y. State Rep., 843; People v. Holfelder, 5 id., 488.

As these are the only errors claimed, it follows that the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., Martin and Merwin, JJ., concur.


author: Martin, J.

text:
    Green W. Ingalls, Resp’t, v. Silas B. Hahn, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Vendor and purchaser—Title.
    Plaintiff contracted to purchase real estate of defendant, hut refused to take the deed tendered on the ground of defect in title. In a deed to defendant he was described as trustee, and he was so described in the deed tendered to plaintiff. The deed was signed by him as trustee, and, also, individually, but it stated that he was not a trustee, but owned the premises in his own right. It appeared that he paid for the property by a check signed in his brother’s name by him as attorney, but it was proved without contradiction that the fund on which it was drawn was defendant’s and the brother’s name was used with his consent as an accommodation, and that the title was taken in defendant’s name as trustee to avoid the necessity of having his wife sign deed in case she were absent. Held, that the evidence did not justify a finding that the money paid for the property was not the defendant’s money, and that plaintiff was not entitled to recover the liquidated damages provided for in the contract.
    2. Same.
    The" title, however, was so far doubtful or unmarketable as to justify plaintiff in refusing to accept it and demanding a return of the money paid by him under the contract.
    Appeal from a judgment for plaintiff for $3,853.94 entered in Onondaga county on the verdict of a jury, and from an order denying a motion for a new trial made on the minutes of the trial judge.

      Wm. Nottingham, for resp’t; C. L. Stone, for app’lt.
   Martin, J.

This action was to recover $2,000 liquidated damages for breach of a contract between the plaintiff and defendant for the purchase of a house and lot situated in the city of Syracuse, N. Y., and also, to recover the sum of $1,000 paid by the plaintiff on the execution ánd delivery of such contract. On the day appointed by the agreement the parties met, and the plaintiff tendered performance upon his part and the defendant tendered to the plaintiff an abstract of title and a deed of the premises in question. The plaintiff declined to accept the deed tendered, upon the ground that the defendant was described as trustee in the conveyance to him, and also in the deed tendered by him, while in the latter deed it was stated that he was not a trustee, but owned the property in his own right. The plaintiff also demanded a return of the $1,000 paid by him on the contract between them, which was refused by the defendant.

On the trial, the court submitted to the jury the question whether the plaintiff would have acquired a good title to the premises in question if he had accepted the deed tendered by the defendant. In submitting that question, the court charged that if the defendant used his own money in purchasing the property, then the title was in him, and the conveyance tendered to the plaintiff, if received, would have transferred a good title. The jury was also instructed that if the property became his and the deed tendered would have passed a good title, the plaintiff could not recover the $2,000 liquidated damages provided for by the contract.

The jury found that the money used by the defendant in paying for the property was not his absolute property. Unless this finding is sustained by the evidence, it would seem that the judgment should be reversed as to the liquidated damages recovered, as the cas'e was submitted solely upon that theory.

The proof was that the defendant took title to the premises in his name, with the word trustee added thereto; that he gave the contract to - the plaintiff in his own name as trustee; that he signed the deed tendered with the word trustee following his name, and also signed his name without the addition of the word trustee. It was, however, stated in the deed tendered that the defendant was not in fact trustee and did not hold the property as such ; that he paid the full consideration from his own money, and not for the benefit or use of any other person; and that no person other than the grantors had any right, title or interest therein.

The defendant on the trial testified that he did not hold the property in trust, but that he had the word trustee inserted after his name so that he might convey the property without his wife’s joining with him in such conveyance, in case she were absent from the state when he should desire to convey it The check with which the defendant paid for the property in question was drawn on the Trust & Deposit Company of Onondaga by him, and the name of his brother was signed as maker by the defendant as his attorney. Both the defendant and his brother testified that the money did not belong to the defendant’s brother, but belonged to the defendant alone; that the defendant was permitted to use his brother’s name in that manner because the deposit company would not receive and pay interest upon an amount as large as the defendant had desired to deposit with it; that the money was thus deposited for these reasons alone. This testimony was uncontradicted.

We do not think the evidence was sufficient to sustain the finding of the jury that the money used by the defendant in purchasing the property in question was not the money of the defendant. The only evidence which tended to prove that it was not, was that it stood'in the defendant’s brother’s name on the books of the trust company where it was deposited. This circumstance was fully explained not only by the evidence of the defendant, but also by that of his brother, in whose name it was deposited. This being the only ground upon which the invalidity of the defendant’s title was based, and the evidence being insufficient to sustain it, we think so far as this branch of the case is concerned the judgment should be reversed.

This leaves for consideration the question whether the title -offered by the defendant was so far doubtful or unmarketable as to justify the plaintiff'in refusing to accept it, and demanding a return of the money paid by him under the contract between them. The jury found that when the defendant tendered the deed of the premises to the plaintiff there was a reasonable doubt as to the plaintiff’s title. That the evidence tended to show that the property was held by the defendant as trustee must be admitted. We think the jury was, under the evidence, justified in finding that there was such a reasonable doubt as to the defendant’s title as would affect the value of the property and interfere with the sale thereof to a reasonable purchaser, and that under the evidence and findings of the jury the plaintiff was entitled to recover the money paid by him upon the contract between the parties. Moore v. Williams, 115 N. Y., 586; 26 N. Y. State Rep., 259; The M. E. C. Home v. Thompson, 108 N. Y., 618; 13 N. Y. State Rep., 127; Moore v. Appleby, 108 N. Y., 237; 13 N. Y. State Rep., 492; Fleming v. Burnham, 100 N. Y., 1; Shriver v. Shriver, 86 id., 575.

It follows that, the judgment should be reversed, unless the plaintiff shall stipulate to modify it by reducing it to the sum of $1,000, with interest thereon from the date of the contract between the parties. If he shall so stipulate, then the judgment should be modified accordingly, and as modified affirmed, without costs of this appeal to either party.

Judgment reversed, with costs to abide the event, unless the plaintiff stipulates to modify the same. If he shall so stipulate, then judgment modified, and as modified affirmed, without costs of this appeal to either party.

Hardin, P. J., and Merwin, J., concur.


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    Julia T. Munroe, Resp’t, v. Jacob Crouse and Giles Everson, App’lts.

      (Supreme Court, General Term, Fourth Department,

    Filed February 20, 1891.)

    Dower—Divestment of—Foreclosure.
    Plaintiff’s husband was the owner of an interest in certain real property subiect to a mortgage given by his grantors. Such interest was sold in bankruptcy proceedings to defendants subject to said mortgage and also to plaintiff’s inchoate right of dower. Defendants refused to pay interest on the mortgage for the purpose of compelling a foreclosure in order to cut off plaintiff’s right of dower, and on the sale purchased it for the amount of the mortgage. Held, that defendants owed a duty to plaintiff to apply the fund left in their hands to the payment of the mortgage so as to relieve her right from extinguishment by a foreclosure and sale; that their purchase at the sale was inconsistent with their duty to her, and therefore that the judgment and purchase were not a bar to her recovery of dower.
    Appeal from an interlocutory judgment, entered in Onondaga county May 25, 1890, on a decision of the special term, adjudging that the plaintiff was entitled to dower to be admeasured to her out of certain premises owned by the defendants, Crouse and Everson, and to damages against them for withholding such dower, and appointing a referee to admeasure her dower and ascertain the amount of such damages.

      M. K & G. W. Driscoll and G. F. Comstock, for resp’t; Waters <£ McLennan, for app’lts.
   Martin, J.

The plaintiff and Allen Munroe were married June 11, 1847, and lived together as husband and wife until October 6, 1884, when Allen Munroe died intestate, leaving the plaintiff, his widow, surviving.

On the 15th of December, 1845, John Townsend and Augustus James were the owners in fee and in possession of the property known as the Syracuse House Property situated in the city of Syracuse, N. Y. On that day they executed and delivered to David S. Kennedy a mortgage thereon, in which their wives joined, to secure the payment of $40,000, according to the condition of a bond executed by them at the same time.

Before November 9, 1871, the plaintiff’s husband and Charles B. Lansing and John Townsend had become possessed of and were the owners in fee, as tenants in common, of such property subject to the mortgage thereon, in the following proportions: Allen Munroe three-eighths, Charles B. Lansing three-eighths and John Townsend two-eighths. On that day they paid in that proportion to apply on said bond and mortgage $15,000, leaving unpaid thereon $25,000. After such payment and on the same day, at the request of Munroe, Lansing and. Townsend, the owner of said bond and mortgage assigned it to the Onondaga County Savings Bank. On the 11th of the same month Munroe, Lansing and Townsend executed and delivered to the bank an instrument under their hands and seals, whereby they acknowledged that there was due upon such bond and mortgage the sum of $25,000, which they promised to pay within one year from the date of the assignment, with interest, and charged the premises with the payment thereof.

The property was thus held, the plaintiff’s husband being the owner of three-eighths thereof and liable to pay three-eighths of the mortgage thereon, until the 21st day of February, 1876, when Allen Munroe and John W. Barker, who were co-partners, made a general assignment under the state laws for the benefit of their creditors, individually and as partners, to James J. Belden, who accepted the trust and qualified as such assignee.

On May 2, 1876, Allen Munroe and John W. Barker were duly adjudicated bankrupts on the petition of their creditors filed April 26, 1876, and James J.' Belden was appointed assignee in bankruptcy of said bankrupts, duly accepted the trust and entered upon his duties as such.

Daniel F. Grott, as register in bankruptcy, on June 16, 1876,, conveyed to Belden as such assignee all the estate, real and personal, of said bankrupts, including the interest of Allen Munroe in the property in question.

On August 5, 1876, Belden, as such assignee, under the order of the court sold at public sale to the defendants Crouse and Everson the three-eighths interest which Munroe had had in the Syracuse House property. This sale was made subject to the' payment by the purchasers of three-eighths of the $25,000 mortgage held by the Onondaga County Savings Bank, which the purchasers assumed to pay as a part of the consideration or purchase price of the premises. It was also made subject to the inchoate right of dower of the plaintiff therein.

On or before September 12, 1876, Crouse and Everson paid, to the assignee the sum of $72,250, being the amount of the purchase price less three-eighths of the amount unpaid on the mortgage, each paying one-half. The assignee thereupon executed and delivered to each of them a deed dated August 22,, 1876, expressing a consideration of $36,125 as paid, and each deed conveyed to the grantee named three-sixteenths of the Syracuse House property subject, however, in each case to the payment of $4,687.50 upon the bond and mortgage held by the bank, that being three-sixteenths of the sum remaining unpaid thereon, which sum Crouse and Everson each assumed and agreed to pay as, a part of the purchase price of the premises conveyed to him in addition to the consideration of $36,125 mentioned therein.

The defendants Crouse and Everson immediately took possession of the property thus transferred and they have received the rents and profits of the same and continued in possession thereof until the present time, except as such possession was subsequently modified by a friendly partition made between them and the other owners of the property. The interest on the bond and mortgage held by the bank was regularly paid by the defendants and the other owners of the property in proportion to their interest therein until January 1, 1878. After that time the defendants, Crouse and Everson, refused to pay their portion of the interest thereon.

In March, 1880, the defendants Everson" and Crouse and the other owners of the property agreed upon a division of it into, three parts, which by mutual releases and conveyances should be vested and held in severalty, one part by each of the other owners and the third by the defendants Crouse and Everson, as tenants in common, they paying to one of the other owners $3,750 for equality of partition. An agreement in writing was executed by the parties March 18,1880, providing for such partition and for the execution of the conveyances necessary for that purpose, and by which it was further agreed that the principal of $25,000 remaining unpaid on said bond and mortgage should be paid, two-eighths by one of such joint owners, three-eighths by the other and three-eighths by the defendants Crouse and Everson, and that each should be charged with and pay their proportion of interest from the time to which they had paid such interest

It was also agreed that all the premises described in the mortgage should be released from the lien thereof, except the part to be conveyed to Crouse and Everson, as to which it was agreed that upon paying their portion the bond and mortgage should be assigned to such person as they might designate, subject to the condition that no personal claims should be made against the obligors in said bond or their representative. In pursuance of this agreement, conveyances were made on the 28th of April,

1880, according to the provisions thereof, and the defendants thereupon acquired title to the portion so conveyed to them, discharged of any interest of the other joint owners therein. They thereupon took possession of the portion conveyed to them and have since been in possession as sole tenants in common thereof. The defendants, Crouse and Everson, refused to pay interest on the bond and mortgage which fell due on or after January 1, 1878, for the purpose of compelling a foreclosure of the mortgage, intending thereby especially to cut off the plaintiff’s claim of dower and deprive her of any rights or interest .she might have in said premises. They made no payment thereon as contemplated by the agreement of March 18, 1880, but instead, after the. delivery of the deeds, procured a foreclosure of such mortgage and a sale of the premises thereunder.

The action of foreclosure was commenced June 19,1880, against all the parties interested in the premises, including Allen Munroe. and the plaintiff in this action. Judgment was entered in that action adjudging the sum of $27,952.56 to be due on said bond and mortgage, directing a sale of the premises, and adjudging the defendants and all persons claiming under them to be forever barred and foreclosed of all right, title, interest and equity of redemption in the premises sold or any part thereof. On January 19, 1881, the premises were sold under the judgment of foreclosure. At the request of the defendants, Crouse and Everson, the portion of the premises which had been conveyed to them and was in their possession was first offered for sale and was struck off to them for $11,609.78, which was the exact amount of the mortgage debt, interest and costs which they had agreed and were bound to pay. The referee making such sale executed and delivered to the defendants a deed of the premises purchased by them January 19,

1881. The bids on which the several parcels were struck off were made under an agreement between the defendants and the other owners of the premises that they should be sufficient in the aggregate to extinguish the mortgage, and they were sufficient for that purpose.

Before the commencement of this action and after the death of Allen Munroe, the plaintiff’s rights in the premises were duly demanded of the defendants, Crouse and Everson, who denied that she had any right of dower in the lands or in any part thereof, on the ground that they had purchased the property 'at foreclosure sale and obtained a title which had divested her of her dower therein. The property purchased by the defendants at the sale by the assignee in bankruptcy, when taken subject to the plaintiff’s right of dower, was worth at least the sum paid and the portion of the mortgage assumed by them.

The facts were fully set out in the complaint and the plaintiff demanded judgment for dower in the premises owned by the defendants, and for such other and further relief as might be just.

The defendants’ answer consisted of a denial of a portion of the complaint, and of allegations of the foreclosure of the mortgage on the premises, a sale under a judgment therein, a purchase by the defendants at such sale, and that such judgment was a bar to the plaintiff’s recovery herein.

The facts stated were found by the trial court and were abundantly established by the evidence.

The court, in substance, held that the plaintiff, before her husband’s assignment and bankruptcy, had an inchoate right of dower in the premises subject to the mortgage; that he was personally and primarily liable for three-eighths of the sum unpaid thereon; that defendants having purchased his interest subject to such mortgage and to plaintiff’s dower right, and having agreed to pay the portion of the mortgage debt due from him as a part of the purchase price, they became primarily liable therefor and held such portion of the purchase price in trust for that purpose, and that it became their duty to so apply it and thus.protect the plaintiff’s right in the land; that the payment of the sum bid on the sale in foreclosure was a payment of their own debt and they acquired no title thereby which would bar the plaintiff’s right of dower; that plaintiff’s right having become absolute by the death of her husband, she was entitled to judgment for dower in the premises acquired by the defendants and to damages for withholding the same after demand.

If the facts alleged and proved were sufficient to sustain a recovery in this action, arid the relief awarded was that to which the plaintiff was entitled, no time need be spent in considering the question of the proper name to be given to this action, nor in discussing the peculiar characteristics of different actions or the refined distinctions which may have formerly existed between one action and another. If upon the proof in this case the plaintiff was entitled to the judgment awarded, there is no question as to the sufficiency of the pleadings.

The only real question that need be-here considered is, whether the title acquired by the defendants by their purchase at the sale on the foreclosure of the mortgage was a bar to the plaintiff’s action for dower.

That the mortgage foreclosed was a lien upon the premises prior and superior to the plaintiff’s right of dower is not denied. It must also be admitted that if the premises had been purchased by a person upon whom no duty rested as to the payment of such mortgage, he would have obtained a title freed from the plaintiff’s dower. We think such was not this case.

Prior to his insolvency the plaintiff’s husband had expressly agreed to pay three-eighths of the mortgage to the then holders of it. He was, therefore, personally liable to pay the mortgage debt. Upon the sale of the premises by the assignee in bankruptcy they were sold to the defendants subject to the plaintiff’s right of dower, and also subject to the mortgage, which the defendants assumed and agreed to pay with a portion of the purchase price which was retained in their hands for that purpose. They thereupon became the principal debtors and were personally liable to pay the debt secured by the mortgage under which they now claim title. They were also bound to protect the land from any liability on account thereof, as it was mei’ely security for the debt for which they were primarily liable. Wilcox v. Campbell, 106 N. Y., 325; 8 N. Y. State Rep., 885; Wilbur v. Warren, 104 N. Y., 193, 199; 5 N. Y. State Rep., 602; Schley v. Fryer, 100 N. Y., 71.

While this liability rested upon the defendants to discharge the mortgage debt, and while they retained a portion of the purchase price in their hands for that purpose, the proof shows with painful certainty that they devised a plan to deprive the plaintiff of her interest in the premises without the slightest compensation to her therefor, and to secure the property to themselves, free from her interest therein. The plan may have been ingenious, but it was neither just nor equitable.. Whether it shall succeed is the practical question to be determined on this appeal.

The respondent to uphold this judgment invokes the rule that equity imputes to a party an intention to fulfil an obligation resting upon him. “ This principle is the statement of a general presumption upon which a court of equity acts. It means that wherever a duty rests upon an individual, in the absence of all evidence to the contrary, it shall be* presumed that he intended to do right rather than wrong; to act conscientiously rather than with bad faith; to perform his duty rather than to violate it.” 1 Pomeroy’s Eq. Juris., § 420.

Much as we would be gratified to uphold this judgment upon the ground that the defendants intended to perform their duty rather than to violate it, still the evidence is such as to forbid the application of that principle in this case. It is only in the absence of all evidence to the contrary that that presumption arises. The evidence discloses and the court has found that the defendants procured this mortgage to be foreclosed and became the purchasers of the property at the sale for the especial purpose of depriving the plaintiff of her right of dower.

The evidence and findings of the court in this cáse are totally inconsistent with the idea that the defendants procured the mortgage to be foreclosed and purchased the property with an intent to fulfil their obligations to pay the mortgage and relieve the property from the lien thereon.

But we think the judgment may be sustained upon other grounds. The defendants were permitted to retain in their hands a portion of the purchase price of the premises upon an agreement to apply it to the payment of the mortgage under which they now claim title. This constituted a trust “ A trust signifies a holding of property, subject to a duty of employing it or applying its proceeds according to directions given by the person from whom it was derived.” 2 Abb.’s Law Diet, 609.

The portion of the purchase price retained by the defendants was held by them subject to the duty of applying it to the discharge of the mortgage on the premises, and they in effect agreed to apply that sum in discharging the land from the lien of the mortgage. This constituted them trustees of the fund for that purpose. They owed this duty to so apply the fund in their hands to the assignee in bankruptcy, to relieve the estate from any personal liability for the mortgage debt. They also owed the same duty to those who had interests in the land subsequent to such mortgage, as the land stood only as surety for the debt which they held this fund in trust to pay and for which they were primarily liable.

The plaintiff had a right of dower in the premises which might be defeated if this mortgage was not paid. The defendants purchased the premises subject to that right, and agreed to pay the mortgage from the fund remaining in their hands. We think the defendants owed the plaintiff the duty to apply the fund in their hands in accordance with the terms of their agreement, and to relieve the land from the lien of the mortgage thereon, and the plaintiff’s right from the contingency of extinguishment by a foreclosure and sale under it. It was their duty to protect the plaintiff’s interest in the premises to that extent. When they refused to pay the mortgage debt, procured the mortgage to be foreclosed for the purpose of depriving the plaintiff of her right, and purchased under the mortgage sale, their purchase was inconsistent with their duty to the plaintiff, and, we think, was invalid as to her.

In Van Epps v. Van Epps, 9 Paige, 238, 241, Chancellor Walworth said: ■ The rule of equity which prohibits purchases by parties placed in a situation of trust or confidence with reference to the subject of purchase, is not, as the defendant supposes, confined to trustees or others who hold the legal title to the property to be sold; nor is it confined to a particular class of persons, such as guardians, trustees or solicitors. But it is a rule which applies universally to all who come within its principle, which principle is that no party can be permitted to purchase an interest in property and hold it for his own benefit where he has a duty to perform in relation to such property which is inconsistent with the character of a purchaser on his own account and for his individual use." This doctrine was cited with approval in Fulton v. Whitney, 66 N. Y., 548, and it was there held that a trustee cannot purchase for his own benefit property which, although not the subject of the trust, is connected with it in this, that a sale of the property for less than its value will diminish the trust fund. In that case it was also held that the provision in a decree of foreclosure authorizing any of the parties to become purchasers was no protection to the purchasers, nor did the confirmation of the sale have that effect, as the rights and equities of the plaintiff were not before the court nor involved in the foreclosure suit

The doctrine of the Van Epps case was again cited and approved in Bennett v. Austin, 81 N. Y., 328, where it was held that “ where a debtor creates or appropriates a fund for the payment of a particular debt or lien, the duty of the holder of the fund is not performed by applying it to the payment of another debt; the debtor has the right to determine as to the application and to have the application, when made, carried out. Where a duty rests upon a party in respect to the property of another, the violation or omission of which will result in a sale of the property, and where a sale is made because of such breach of duty, the person owing it is absolutely disqualified from becoming a purchaser at the sale for his own account. The usual provision in a decree of foreclosure, that any of the parties to the suit may purchase on the sale, will not permit one defendant to bid in premises belonging to another and to hold them against the latter, contrary to equity.” See, also, Fairchild v. Lynch, 99 N. Y., 359; Conger v. Ring, 11 Barb., 356.

The appellants’ counsel correctly states the question involved when he says “ the question here is whether the facts are such as in equity to charge the defendants with a duty to plaintiff inconsistent with the character of purchasers on their own account”

We think, as we have endeavored to show, that the facts were ■such that under the principle of the authorities cited the defendants were not permitted to purchase this property upon the mortgage sale for their own use and benefit as against the plaintiff’s interest therein, and therefore that the judgment and purchase by the defendants was not a bar to the plaintiff’s recovery in this action.

The questions involved in this controversy did not arise in the foreclosure action and were not in any way determined therein.

-Nor do we think the contention of the appellants, that their agreement to pay such mortgage from the money retained by them was without consideration, can be sustained. The consideration was full and ample. It was the amount due on the mortgage and was sufficient to uphold their agreement.

We think the judgment was right and that it should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.