author: Barnard, P. J.:

text:
    WILLIAM H. CROSSMAN and Others, Appellants, v. HENRY C. CROSSMAN and Others, Respondents.

      Witt — execution of it in duplicate — but one of the papers need be produced for probate — error in the description of the testator in the attestation clause — when it is immaterial. ' '
    One Henry Crossman died leaving a will which he had executed in duplicate. The petition for the probate of the will did not state that it had been executed in duplicate, nor was the duplicate produced, although the words “ done in duplicate ” Were written upon the back of the instrument which was produced and admitted to probate. Subsequently an application, to have the probate of the will vacated, was made by certain of the testator’s nephews and nieces, upon the ground of its invalidity because, of defects in the proof of its execution and on account of the mental incapacity of the testator. Upon the re-examination of the subscribing witnesses the duplicate was produced by the proponents. 'It did not appear to have been revoked. It was exactly similar to the one before proved, except that the name of one of the executors. had been omitted in drawing it and had been interlined, and the interlineation noted, in the presence of the witnesses, in the attestation clause.

      Held, that it was not necessary that the petition should state that the will had been executed in duplicate, or that the duplicates should be, both, produced and proposed for probate.
    That the duplicates were not designed to be, and were not in fact, two wills, but each was executed so as to furnish a safeguard against loss, and but one need be admitted to probate.
    The testator had an adopted son named Henry C. Crossman. The will was executed by tlie testator Henry Crossman, and lie was so described in it. In the attestation clause of each paper the testator was described as Henry O. Grossman. ,

      Held, that the validity of the will was not affected by this error in the attestation clause.
    Appeal from a decree of the surrogate of Kings county refusing to revoke the probate of the will of Henry Crossman, late of the city of Brooklyn.
    The will was executed in duplicate November 29, 1879, and admitted to probate by the surrogate of, Kings county January 28,
    1881. Four of the present contestants appeared by counsel on the probate, who examined the witnesses to tlie will at that time. Hpon the wili being admitted to probate the executors duly -qualified. Almost a year after the probate and on the 13th of January,
    1882, .six of the ten nephews and nieces of Mr. Grossman, all of whom had been left legacies in the will, and were made residuary legatees under it in a certain contingency, filed allegations against its validity, the competency of its proof and the mental capacity of the testator under the provisions of the Code of Civil Procedure (§§ 2647-2653).
    On the trial upon these allegations before the surrogate of Kings county the respondents produced their testimony in support of the wili and rested. Among their proofs was the duplicate copy of the will executed by the testator, which was offered and received in evidence. After the proponents' rested the contestants moved that the probate of the will be revoked on the gz-ound that the will had been executed in duplicate and that only a part of the alleged will had been admitted to probate.

      Henry T. Clinton and Josiah T. Marian, for the appellants.
    Even if it were not formerly necessary, when a will was executed in duplicate, to present both duplicates for probate, it is necessary to do so now by reason of sections 2614, 2635 of the present Code. Where a will is executed in duplicate, both copies so executed constitute the will. (Whart. Law of Ev. [2d ed.], 79, § 74.) All the authorities hold that where a will is executed in duplicate, that both copies so executed constitute the will. (1 Wms. on- Exrs., 154; 1 Eedf. on Wills, 305; 2 Greenl. Ev. [18th ed.], § 682; 1 Jar. on Wills [5th Am. ed.], 296, 297; Richa/rds v Mumford, 2 Phillimore, 23; Doe v. Strickland, 8 Com. Bench, 724; Hubbard v. Alexander, Eng. Law R. [Oh. Div., vol. 3], 738; Boughey v. More-ton, 2 Lee’s Eccles. R., 532; Colvin v. Fraser, 2 Haggard’s Eccles. R., 266; Burtonsliaw v. Gilbert, Cowp., 49; Onions v. Tyner, Tern., 742; Roberts v. Round, 3 Haggard’s Eccles. R., 548; O'HeaWs Admrs. v. Farr, 1 Richardson [S. 0.], 88.)

      H. W. Booksta/oer and James R. Steers, Jr., for the respondents.
   Barnard, P. J.:

There is no reason why the decree of the surrogate should be reversed. Henry Crossman executed his last will and testament in duplicate. The petition for the probate of the will did not mention that there were two duplicates, but it was plainly written on the back of the will that it was done in duplicate. It is undoubtedly true that when a will is done in duplicate that the revocation of either revokes the will as expressed in each duplicate, because the will is single and the evidence of it double. The time for the production of the duplicate will was at its probate. It was then the contestants’ right, and it was the duty of those then opposing’ probate to demand it. The will was proven without such demand. The present contestants have filed allegations against the will, its validity, its proof of execution and the mental capacity of the testator. Hpon the re-examination of the witnesses to prove the will the fact appears that it was executed in duplicate, and this duplicate copy is produced. It was never revoked so far as disclosed by the paper. It is as it was executed. We think that the petitioner was not required to state that the will was executed in duplicate or that both duplicates should be proposed for probate. The duplicates were not designed to be and were not in fact two wills, but each was executed so as to furnish a safeguard against loss. It now appears that there was no revocation of either paper. They are exactly similar. The omission of the name of .one executor and its interlineation in one of the duplicates accompanied by its annotation in the presence of the witnesses, in legal effect, made both papers identical. No just purpose is subserved by holding such a paper other than a literal reproduction of the other. It was an evident mistake of the copyist, and to avoid an entire new copy the interlineation was resorted to and it was noted in tbe attestation clause.

.Both papers express the name of the testator to- be Henry C. Grossman in the attestation clause. The testator’s name was simply Henry Grossman. There was an adopted son whose name was Henry O. Grossman; The will is proven to-have been executed by Henry Grossman, and he is correctly named in the will. The insertion- of the middle letter G., in the attestation clause, is not vital.

If there was no attestation clause and the will was properly proven it would be a good will. This will was properly executed and by the right- testator. The mistake of the person who transcribed the attestation clause should not have the effect to destroy the will.

The decree of the suri’Ogate should be affirmed, with costs.

Pratt and Dykman, JJ., concurred.

Decree of surrogate affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. BERNARDINO CASSIANO, Appellant.

      Criminal trial — the prisoner’s counsel must be notified before further instruc tíons are giren, to a jury which has once retired — Code of Criminal Procedure, sec. 437 — The jury is entitled to know the punishment prescribed for the crime — Bight of the jury to consider the intoxicated condition of the accused, — Penal Code, sec. 33.
    Where a jury, after it has retired to deliberate upon its verdict, returns into court and asks for further instructions, the prisoner has, under section 437 of the Code of Criminal Procedure, an absolute right to have his counsel notified of the fact, and it is a fatal error for the court to give further instructions to the jury before giving such notice to the counsel, even though the prisoner himself be present in court and takes no exception to the instruction so given.
    Upon the trial of a person indicted for murder in the first degree the jury, after having retired to deliberate upon its verdict, returned into court and asked what the statute punishment for murder in the second degree was. The court replied that that was not a matter for their consideration in arriving at a verdict.

      Eeld, that this was error.

      That while it is proper to instruct the jury that where a crime has been proved the extent of the punishment prescribed therefor is no sufficient reason why a verdict in accordance with the facts as proven should not be rendered, yet as a part of the case the punishment should be known to the jury.
    Upon the trial of a person indicted for murder in the first degree the jury may, under section 32 of the Penal Code, take into consideration the fact that the accused was intoxicated at the time when he committed the act.
    Appeal by tbe defendant from a judgment of a Court of Oyer and Terminer, convicting bim of tbe crime of murder in tbe first degree. »

      Louis E. Carr and M. H. Hirsohberg, for tbe appellant. ■'

      Walter C. Anthony, district attorney, and William D. LHoJcey, for tbe respondents. -
   Barnard, P. J.:

Tbe prisoner was convicted of tbe crime of murder in tbe first ■degree at tbe Orange county Oyer and Terminer in January last. After tbe case had been given to.tbe jury and they bad retired, and after deliberating upon tbe evidence the jury requested further instructions. Tbe prisoner was brought into court and tbe jury were recalled. Tbe counsel who represented the prisoner were not notified of tbe request of the jury or of their recall for further instructions, and they were not in fact in court. By section 427 of the Code of Criminal Procedure it is provided that in case tbe jury return for further instructions the counsel for tbe prisoner shall be notified. In tbe absence of tbe counsel tbe jury asked for tbe statute punishmentjjfor murder in tbe second degree, “ what tbe sentence is.” Tbe court replied that that was not a matter for their consideration in arriving at a verdict. Necessarily there was no exception to this course as tbe counsel were absent, but upon appeal it must be passed upon whether or not tbe refusal was right. Two questions are thus raised: Was it error to answer tbe jury without notifying counsel, without regard to the correctness of tbe charge? and, second, were tbe jury entitled to tbe information sought ? We think it was an absolute right of tbe prisoner to have bis counsel notified after tbe jury returned into court and before they were -instructed. Tbe words of tbe statute are imperative that tbe information sought by tbe jury “ must be given after notice * * * to tbe counsel for the defendant, and in case of felony in the presence of the defendant.”

As to the defendant’s right to be present that was the requirement of the Revised Statutes; and when correct instructions were given in the presence of the counsel for the accused, but in his absence, the Court of Appeals reversed the judgment. (Maurer v. People, 43 N. Y., 1.) The right of an accused is part of our system. In the present case it is apparent that the counsel for the accused might have induced the court to furnish the information sought, as. there can be no doubt but that it was within the discretionary power of the court even if it was not a legal right. We think the information should have been given. In all cases the jury should know the effect of their verdict. While it is proper to instruct them that when a crime is proven, the extent of the punishment therefor is no sufficient -reason why a verdict according to the facts found should not be rendered, yet as part of the case the punishment should be known by the jury. It was therefore a fatal error not to notify the defendant’s counsel when the jury asked for further instructions. It is not material to examine the question whether the jury were authorized to take into their consideration the intoxicated condition of the defendant when the crime was committed in determining the qnestion whether the blow was struck in sudden passion and without the deliberation, now needed to constitute murder in the first degree. Since the trial of the case the present Code has gone into effect and by section twenty-two it is provided that the fact that the accused was iñtoxicated at the time can be taken into consideration in determining purpose, motive or intent.

The conviction should be reversed, and a new trial granted.

Pratt, J., concurred.

Present — Barnard, P. J., Dvkman and Pratt, JJ.

Conviction reversed, and new trial granted.


author: Barnard, P. J.: .

text:
    WILLIAM MARTIN, Respondent, v. THE TRIBUNE ASSOCIATION, Appellant.

      Negligence — an employer is not liable for the negligence of his contractor — a remit constructed in the street, with the permission of the city authorities, is not a nuisance.

    The defendant entered into contracts for tbe erection of a building upon a lot owned by it in Nassau street, in the city of New York, one witb one O’Brien,' by which he was to take down the old building and do the excavating for the cellar and a vault in the street and build the walls to the level of the curb, and the other with one Batterson, by which he was to furnish all the granite work. In pursuance of permits procured from the proper city authorities by the defendant, O’Brien had excavated and was constructing a vault extending twelve feet beyond the curb line in the street, and while engaged in so doing he had built a fence i’n the street to inclose the same. This fence was blown against the plaintiff, who was passing, and threw him down, striking his head against some blocks of granite left in the street by Batterson.
    In an action to recover damages for the injuries so occasioned:

      Held, that the defendant was not liable for the negligence of its contractors.
    That the construction of the vault in the street under the permit from the city was not a trespass or a nuisance.
    That the defendant was not liable for the injuries sustained by the plaintiff.
    Appeal from a judgment in favor„of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of • tbe justice before whom tbe action was tried.
    ■ On December 14, 1874, tbe plaintiff while passing along Nassau street, in the city of New York, over the sidewalk which tbe defendant bad excavated, and where it was constructing tbe vaults of a new building, was struck on tbe bead by a falling fence and precipitated against a large block of granite lying in the pathway an d was severely injured. Tbe fence was blown over by tbe wind, and tbe plaintiff claimed that it was at tbe time in a rickety condition.
    Permission to construct the vaults bad been obtained by the defendant from the proper city authorities upon tbe payment of some $987. The work was done and tbe materials were furnished by two contractors, Peter T. O’Brien and James Gk Batterson. Peter T. O’Brien in bis contract undertook and agreed to make all the necessary excavation, and furnish and provide all work and materials that might be required for the building of tbe vault walls up to the level of the curb. The vault was then being extended under this contract twelve feet beyond the curb line on Nassau street, and in order to prevent persons from passing over the sidewalk and excavation while such vault was in the course of construction the fence was erected. James G-. Batterson in his contract agreed to furnish and provide all the granite work according to the specifications which formed a part of the contract. The specifications provided that he should be responsible for any accidents which might happen on the streets or sidewalks by cause of accumulation of material furnished under the contract.

      CorneUus A. Runkle, for the appellant.

      Franklin Ba/rtlett and Clifford A. RL. Ba/rtlett, for the respondent.
   Barnard, P. J.: .

The general rule is that he who does the injury must respond. The exception to it is that the master shall be held for the damages of a servant whom he selects. The master acts by the servant. The sole question in this case is whether the employment of the contractor is an independent one. If it was, then the relation of master and servant does not exist, and there is no liability upon the defendant’s part for the negligent acts of the contractors or their employes. There can be no question but that the employment was independent. The defendant agreed with Batterson for the entire granite- material needed, and with O’Brien for other material and for work necessary to complete the building and structures required. The defendant had nothing to do in respect to the worK, except to see that it was done according to the terms of the contract. The case is covered by the case of McCafferty v. The Spuyten Duyvel, etc., Railroad (61 N. Y., 178). The defendant did not employ the workmen and had no power to discharge them, “hence the rule of respondeat superior applies, and the principal for whom the men were working, and by whom they were employed, and not the defendant, is liable for the damage done to the plaintiff.”

The principle was again upheld in King v. New York Central and Hudson River Railroad Company (66 N. Y., 181). The case ' is not one where the defendant is rendered liable because the work contracted for was a trespass or was a nuisance, or was performed according to contract, and the result occasioned the'injury. No complaint is made against the completed structure.. The contract was neither for a trespass or nuisance. The power to permit the defendants to remove the sidewalk and erect under it a vault was given by the legislature to the city authorities. The defendant obtained permission to build this vault, and neither trespass or nuisance can be alleged against an act which, is [permitted in the streets of the city of New York by legislative and municipal authority. (Congreve v. Smith, 18 N. Y., 79; People ex rel. Murphy v. Kelly, 76 id., 475; Irvine v. Wood, 51 id., 224; Creed v. Hartmann, 29 id., 591.)

The principle of those cases is not questioned in Mairs v. Manhattan Real Estate Association (89 N. Y., 498). It was held in that case that permission to build a vault under the sidewalk gave no right to collect the water from the street and throw it in the excavation and so upon a private owner adjacent. As to passengers upon the street the act done was lawful. The structure being lawful all the acts necessary to be done in completing it were collateral to the undertaking. If the fence was insufficient, or if the contractor went beyond the permit in obstructing the street, these acts are to be chargeable to the persons who did them. The plaintiff should, therefore, have been nonsuited.

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

Dykman, J., concurred; Pratt, J., not sitting.

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


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    In the Matter of the Writ of Certiorari of JOHN J. LEARY, late Private Thirteenth Regiment to MAJOR W. H. H. TYSON, President of a Court-Martial.

      •Certiorari — liability of the unsuccessful party for costs — the president of a court-martial is personally liable therefor— Code of Owil Procedure, secs. 2007, 2129, 3258.
    Where a judgment of a court-martial is brought into the Supreme Court hy a writ of certiorarri and there reversed, the respondent is personally liable for the costs awarded hy the final order, and may be adjudged guilty of a contempt if he fail to pay them after a demand therefor has been duly made.
    Appeal from an order made at a Special Term requiring Major W. H. H. Tyson to pay certain costs or to be committed as for a contempt of court.
    The costs were imposed by an order reversing a judgment of a court-martial upon the return to a writ of cerbiorari.

    The opinion of the court upon the hearing of the matter brought before it by the certiorari is reported in 27 Hun, 564.

      Horatio C. King, judge advocate general, counsel for appellant on behalf of the State.

      John J. Leary, relator in person.
   Barnard, P. J.:

Major W. H. IT. Tyson, according to the provisions of the Military Code held a court-martial and imposed a judgment against John J. Leaiy. This judgment was brought up to the Supreme Court for review by the defendant Leáry, and the same was reversed with certain costs. The court-martial never obtained any jurisdiction of the. person of the defendant Leary. The record of the court-martial was made up by Major Tyson, and was brought into the Supreme Court by a writ of certiorari duly allowed. By section 1991 of the Code of Civil Procedure a writ of certiorari is one of three writs denominated State writs. By section 2007, it is provided that in special proceedings instituted by State writ, the person required to pay the costs awarded by a final order may be punished for a contempt for non-payment of costs after demand therefor. The writ was properly directed to Major Tyson. (Code, §.2129.) By section 3258 he would have been entitled to increased costs in case he had succeeded upon the final order “ in a special proceeding- instituted by State writ.”

The order should therefore be affirmed, with costs and disbursements.

Pratt and Dtkman, JJ., concurred.

Order affirmed, with costs and'disbursements.'


text:
    RICHARD B. SMITH, Respondent, v. GEORGE W. COOPER, Sheriff, etc., Appellant.

      Costs — right of a public officer, in whose favor a judgment is entered, to increased costs — Code of Civil Procedure, seas. 3229, 3258.
    Where, in an action brought against a sheriff to! recover a sum of money or a chattel, by reason of some act done by him by virtue of his' office, a final judgment is rendered in his favor, he has an absolute right to the additional costs given by section 3258 of the Code of Civil Procedure. He has the same right to the increased costs as to the single costs given by section 3229.
    Appeal from an order made at a Special Term denying the defendant’s motion for “ increased costs; ” the defendant having before moved for and obtained an additional allowance of $300.
    The' action was brought to recover of the defendant certain chattels seized and levied upon by him, as sheriff of Suffolk county, under an execution issued to him as such sheriff against the property of one Caleb T. Smith. The jury had rendered a verdict in favor of the defendant. The plaintiff claimed, among other things, that if defendant was legally entitled to “increased costs” under section 3258 of the Code, he should have asked for a certificate under section 3248; that the denial of this motion did not prevent his asking for the certificate, and that the order asked for if granted would have been a nullity.

      James H. Stanbrough, for the appellant.

      J. La/virence Smith, for the respondent.
   Barnard, P. J.:

Tbe defendant’s right to increased costs is absolute. The Code of Civil Procedure (§ 3258) provides that a defendant in whose favor a final judgment is rendered in an action for a money recovery or for a chattel, “is entitled to recover” the increased costs when the action is brought against a public officer for an act done by him by virtue of his office. The defendant has the same right to increased costs as to single costs. (Sec. 3229.) The form of the application to the court for the increased costs, is immaterial. The papers say that a motion was made for the costs and denied. The Code requires 'a certificate. (Sec. 3248.) The court denied a right to the increased costs, and this .determination should be reversed, with costs and disbursements.

D teman, J., concurred; Pratt, J., not sitting.

Order refusing increased costs reversed, with costs and disbursements.


text:
    JOHN SHANLEY, Appellant, v. THE CITY OF BROOKLYN, Respondent.

      Constitution — power of the legislature to authorize the common council of a city to fix salaries— Const., art. 3, sec. 18 — Patrolmen of a city police force a/re not public officers within the meaning of the constitution —1877, chap. 159.
    Chapter 459 oí 1877, entitled “An act in relation te the salaries, fees, per centages and allowances of the officers of the city of Brooklyn,” authorized the common council to fix and regulate the salaries of various officers, clerks and subordinates of the city. It provided that if the comm«n council did not act before January 1, 1878, the salaries should be as fixed by the act until changed by the action of the common council. It fixed the salary of patrolmen at $1,100 a year, which was the salary then fixed by the city charter. It excepted those cases in which the fees, per centages and allowances could not be increased or diminished under section 18 of article 3 of the Constitution.
    October 28, 1878, the common council passed a resolution fixing the-salaries of patrolmen at $1,000 a year.

      Held, that the act of 1877 was not a violation of the said section of the Constitution, which prohibits the legislature from passing a private or local bill “ creating, increasing or decreasing fees, per centages or allo,wances of public officers during the term for which said officers are elected or appointed; ” and that the resolution of the common council fixing the salary at $1,(!00 was valid.

      It seems, that patrolmen upon the police force of cities are not “ public officers ” within the meaning of those words as used in the said section. That section refers only to those well known State or county officers which are elected or appointed for a certain time. (.Per Barnard, P. J.)
    Appeal from a judgment of the Special Term held in Kings county, entered upon a decision overruling the plaintiffs demurrer to the answer.
    The plaintiff was duly appointed a patrolman of the Brooklyn police force, and continued to act as such down to January 5,1881, or thereabouts. His compensation as such patrolman, as fixed by section 9 of' title 11 of chapter 863 of the Laws of 1873 and chapter 459 of 1877, was $1,100, but during the years 1879 and 1880 he received for his services only $1,000 per annum. This action is to recover the difference. By way of defense the answer sets up a resolution of the common council, passed October 28, 1878, and approved by the mayor, whereby the patrolman’s compensation was fixed at $1,000 per year, beginning with the 1st day of January, 1879. The resolution was passed in pursuance of an act of the legislature (Laws'of 1877, chap. 459), entitled “An act in relation to the salaries, fees, per centages and allowances of the officers of the city of Brooklyn;”
    The statute of 1877 authorizes the common council to fix and regulate the salaries of* nearly all the city officers; and provides that until the common council shall have acted the salaries shall remain as fixed by it. It fixed the salary of patrolmen at $1,100 a year.
    Section 6 of the act provided that “ the provisions of this act shall not apply to any officers ivho, under the provisions of the Constitution, cannot have their fees, per centages or allowances increased or diminished during their present terms of office; but said provisions shall apply to all of those hereafter elected or appointed to perform any service within the city of Brooklyn.”

      Erastus Cooke, for the appellant.

      John A. Taylor, for the respondent.
   Barnard, P. J.:

By chapter 459 of the Laws of 1877, the legislature gave power to the common council of Brooklyn, to regulate the salaries of patrolmen. The pay of those officers was fixed, by this act, at the sum of $1,100 per year, until action was had by the common council. Subsequently, by such action, the yearly compensation was reduced to $1,000 per year. The plaintiff, one of the patrolmen, claims that the reduction was illegal.- By article 3, section 18 of the Constitution, it is provided that the legislature shall not pass a private or local bill in any of the following cases : * * * Creating, increasing or decreasing fees, per centages or allowances of public officers during the term for which said officers are elected or appointed. * * * The legislature shall pass general laws providing for the causes enumerated in this section.”

The act of 1877 excepted those cases where the fees, per centages> and allowances could not be increased or diminished by this provision of the Constitution. The act of 1877 does not offend against the Constitution. Municipal charters are subject to legislative amendment. These amendments are not made by general laws. The government of cities requires a local act applying to the particular city, and in view of its population and industries.

In the case of the People ex rel. Commissioners v. Banks (67 N. Y., 568) the Court of Appeals decides Ühat the constitutional provision was designed to prevent any interference with the general laws of the State upon the subjects contained in the article of the Constitution in question. An act to provide for that which is not ordinarily done under the general laws and for which no general provision is made by law, was within the legislative power. The case of Kerrigan v. Force (68 N. Y., 384) was a case where the legislature required all judicial sales to be made by the sheriff of Kings county. It was an interference with the general law, and if it had applied to the sheriff in office, would have been inoperative. It is not an authority in the present case.

I do not think patrolmen upon the police force of cities come within the constitutional provisions. The evil aimed at by that amendment was a general one, applying to “ public officers during the .term for which said officers are elected or appointed.” This had reference to those well known State and county offices which were elective or filled by appointment for a certain time. Policemen were local and not the subject of general laws, nor even of a fixed tenure in office. These members varied with circumstances, and their compensation once fixed, was not designed by this amendment to continue unchangeable.

The judgment should therefore be affirmed, with costs.

Pratt, J., concurred.

Present — Barnard, P. L, Dykman and Pratt, JJ.1

Judgment affirmed, with costs.


text:
    SARAH A. GUY, as Administratrix, etc., of JEREMIAH GUY, Deceased, Appellant, v. THE NEW YORK, ONTARIO AND WESTERN RAILROAD COMPANY, Respondent.

      Negligence — wrongful removal of a passenger from a train — the company is liable for all the consequences directly resulting therefrom.

    A conductor upon one of the defendant’s trains removed therefrom the plaintiff’s intestate, who had failed to produce a ticket when required, and wl^o had no money wherewith to pay his fare. There was evidence tending to show that the intestate had bought and lost his ticket, and before he was removed one of his companions tendered the fare to the conductor, who refused to receive it, demanding a ticket. The intestate, who was very much intoxicated, was put off the train in a cut about twenty feet deep. He proceeded in the direction of his home some 1,700 feet when he laid or fell down and was run over and killed, about fifteen minutes later, bv the train of another company which had the right to run its cars over the defendant’s tracks.

      Held, that as the intestate was wrongfully removed from the train the question as to whether his death was or was not directly traceable to such removal should have been left to the jury, and that the court erred in nonsuiting the plaintiff.
    Appeal from a judgment dismissing the complaint, entered upon a nonsuit directed at the circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for the alleged negligent killing of the plaintiff’s intestate by the defendant.

      John W. Injon, for the appellant.

      John G. WilTcin, for the respondent.
   Barnard, P. J.:

The defendant wrongfully ejected the deceased from its cars. The deceased had no money with which to pay his fare and could not produce his ticket. It was not entirely certain but that he Iliad bought a ticket which entitled him to a passage from Middle-town to Fair Oaks and return. The proof rather tends to show that he bought such a ticket. At all events he did fail to produce the ticket, and the conductor at Sands station about a mile from Middletown proceeded to remove him from the train. Before he was removed a companion of the deceased tendered the 'fare for the deceased and the'conductor refused to receive it, demanding a ticket.' The conductor was bound to receive the money. (O’Brien v. N. Y. C. and H. R. R. R., 80 N. Y., 236.) The conductor forceably removed the deceased from the train and left him on the side of the track in a cut about twenty feet deep. The deceased was very much intoxicated at the time. The deceased was killed about fifteen minutes after he was removed, by the train- of another railroad which had the right to run its ears over the defendant’s road. The deceased had proceeded on his way to his destination, which was a mile off from Sand’s station, .and had traveled 1,700 feet from the place of removal, and had then laid himself down or had fallen down where he was killed by the train which left Middle-town some ten minutes after the defendant’s train had arrived there. It will be observed that this is not a case of negligence. The removal was a wrongful act. Even in a case of negligence the Court of Appeals carried the injury to the proximate cause in Smith v. British and North American Royal Mail Steam Packet Company (86 N. Y., 408). In that case some berths in a steamship had fallen down. The plaintiff, a sick lady, was removed from an under berth uninjured, but she was subsequently injured by the rolling of the vessel and by exposure. The court held that the subsequent injury was traceable to the improper fastening of the berths of the ship. The court lays stress upon the helpless condition of the passenger and held the defendants liable for her injuries subsequent to the removal. The present case is quite as strong an one in favor of the plaintiff. The deceased was so much intoxicated as to be helpless in the situation in which he was placed. The wrong-doer cannot exact a high degree of prudence from him under his then condition. The question whether the death of the passenger was traceable directly to the removal from the train, under all the circumstances, was for the jury: If he had died from exposure the ease would fall easily under the Smith case above cited. He attempted in his drunken way to get home on the track of defendants and failed, no doubt, by reason of his condition. The act being wrongful, all consequences which reasonably and directly flow from it are chargeable to the defendant.

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

Dykman, J., concurred; Pratt, J., not sitting.

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


text:
    L. JOSEPHINE GODDARD, Appellant, v. GEORGE B. ABBOTT, as Public Administrator in Kings County, Respondent.

      Letters of ad/mimst/ration — conflicting rights of the public administrator of Kings county and the Brooklyn Trust Company — which is entitled to priority.

    Chapter 154 of 1877, amends section 4 of chapter 335 of 1871, creating the office of public administrator of Kings county by conferring upon him “ absolute and sole authority ” to administer upon the personal estate of intestates whenever “there shall be no widow, husband or next of kin entitled to a distributive share in the estate of said intestate, resident in the State, entitled, competent or willing to take out letters.” Chapter 124 of 1882 amends this act by substituting the words “prior right and authority” for “absolute and sole authority.”
    Section 1 of chapter 383 of 1877 amends chapter 571 of 1866, creating the Brooklyn Trust Company, by providing that when “it shall appear that there are no next of kin of the deceased entitled to a distributive share in the estate qualified, competent or willing, or otherwise unable to accept such administration, said court or surrogate may, at the request of any party interested in the estate, whether as creditor or beneficiary, grant letters of administration on said estate to said company.”
    February 19, 1883, one Goddard, a resident of Brooklyn, died inte'state, leaving him surviving two daughters, who were of full age, and three children of a deceased daughter. One of the daughters resided in Illinois; the other daughter and the three grandchildren, two of whom were minors and one of full age, resided in Brooklyn. The two daughters and the grandchild, who was of age, applied to have the Trust Company appointed administrator. The public admin, istrator objecting to this; the surrogate denied the application and appointed-him administrator. '

      Held, that he erred in so)doing. (Pratt, X, dissenting.)
    Appeal from two orders made by tire Surrogate’s Court of Kings county, one dated March 7, 1883, denying the application for the appointment of the Brooklyn Trust Company as administrator of the estate of Charles W. Goddard, the other dated March 9, 1883, awarding letters of administration of said' estate to George B. Abbott, public administrator.
    The Brooklyn Trust Company was organized as a corporation by the Laws of 1866 (chap. 571). By section 2 of said act certain, general and special powers were conferred on the said corporation, not including the power to administer upon estates of intestates.
    By the Laws of 1877 (chap. 383), passed June 2, 1877, the said section 2 of the act of 1866 was amended • by providing, among other things, that when “it shall appear that there are no next of kin of the deceased entitled to a distributive share in the estate qualified, competent or willing, or otherwise unable to accept such administration, said court or surrogate may, at the request of any party interested in the estate, whether as creditor or beneficiary, grant letters of administration on said estate to said company.” Section 4 of chapter 335 of 1871, creating the office of public administrator in Kings county, was amended by chapter 154, Laws 1877, so as to read: “ Section 4. Such public administrator shall have absolute and sole authority to collect, take charge of and administer upon * * * the personal estate * * * of persons dying intestate. * * * 1. "Whenever such person shall die leaving any assets or effects in the county of Kings, and there shall be no widow, husband or next of kin entitled to a distributive share in the, estate of said intestate, resident in the State, entitled, competent or willing to take out letters of administration on such estate.”
    Said section 4 of said act was again amended by the law of 1882 (chap. 124), passed May fourth, which provides: “ Section 4. Such, public administrator shall have the prior right and authority to> collect, take charge of and administer,” etc.

      James G. Bergen, for the appellant.

      Charles' B. Otis, for the respondent.
   Barnard, P. J.:

It cannot be supposed that the legislature passed two important acts at the same session without intending that both should have effect. The Brooklyn Trust Company was chartered in 1866. (Chap. 571.) By the original charter this company could not be an administrator of deceased intestates. In 1871 (chap. 335) the legislature created a Public Administrator for Kings county. It was provided that this public administrator could act only when there was no widow, husband or relative, a resident of the State, entitled tó take.

In 1877 the Trust Company charter and the public administrator acts were both amended. By chapter 154 of Laws of 1877, it was provided, by amendment to section 4 of the original act, that the public administrator should have, absolute and sole authority to administer when there was no widow, husband or next of kin entitled to a distributive share in the estate, entitled, competent or willing to take out letters. By chapter 383 of 1877, the Trust Company, in cases where there was no person entitled to a distributive share in the estate competent, qualified or willing to administer, it was provided that the surrogate may appoint, at the request of a party interested in the estate, the Trust Company such administrator. By chapter 124 of the Laws of 1882, the public administrator act was again amended so as to give the public administrator the “prior right and authority ” to administer when there was no widow, husband or next of kin entitled, competent or willing to take administration. These laws thus stood when the present case arose. Charles W. Goddard died in Brooklyn, being a resident. He left two daughters, both of full age, one residing in the State of Illinois, the other in the city of Brooklyn, New York, and three grandchildren, all residing in Brooklyn, one of whom was of full age and the other two were minors. The two daughters and the grandchild who was of full age petitioned the surrogate to appoint the Trust Company administrator if there was no person having a prior right. The public administrator opposed the issuing of letters to the Trust Company, and asked that they be issued to himself. The surrogate denied the petition of the next of kin and granted that of the public administrator. The next of kin appealed from both orders. The legislation is apparently contradictory. . The surrogate holds that the right to grant letters to the Trust Company is permissive only. Upon this view he decides that the public administrator is the best administrator. Can this be the true intent of the Trust Company charter ? The company is by law decided to be a good executor and administrator, and the court is empowered to appoint the same administrator or not according to its discretion and this in the face of a good enactment, that the public administrator has the prior right to such administration. Can the public administrator be absolutely entitled, and at the same time the court be permitted to grant away the letters evidencing that right to another ?

By the Revised Statutes, any person entitled to administration could consent that another competent person, not entitled, be joined with him. The power given to surrogates was given in the same words, “may appoint.” (2 R. S., 76, § 34.) Under this power, for many years, letters have been granted to a person entitled and persons not entitled to administer estates. Such right has never been denied. Is not the Trust Company’s charter intended to cover a class of cases where there are persons entitled or interested in the estate to choose the Trust Company as the administrator % If the Trust Company was a natural person these sisters could join it with them under the law as it stood, without regard to the charter of the Trust Company. The language of the statute is, persons and this charter makes a sound, safe, well managed Trust Company a competent administrator, if the interested parties elect to have it so. In such cases there is a person competent and willing to take, and the public administrator has no jurisdiction in the matter. This construction of the act accords with the spirit of the law in relation to the administration upon estates.

The order in which parties are entitled is carefully stated in the statute, beginning with the closest relatives and next of kin. Those are to have the rights who are most interested. Person entitled may include one or more to act with them, who are strangers. It is not inharmonious in Brooklyn to permit heirs to have the Trust Company act alone. This will permit those who are most interested to do their business in their own way and through their chosen agent. If this is the correct conclusion it is immaterial whether “ may ” means “ must ” or not. If the case is not one of right to the public administrator to take letters, the surrogate should have granted the petition of the heirs even if he had power to refuse.

The order should therefore be reversed and the proceedings be remitted to the surrogate to grant letters to the Trust Company in accordance with the prayer of the petitioner.

Dykman, J., concurred; Prato, J., dissenting.

Order refusing letters to The Brooklyn Trust Company and order granting same to public administrator reversed, and proceedings remitted to surrogate.


author: Dykman, J.:

text:
    THE HOME INSURANCE COMPANY, Plaintiff, v. MARY HEAD, Defendant.

      Insurance company — right of, to hold real estate purchased upon a foreclosure sale — its title is not divested by a failure to procure the certificate required, by chapter 466 of 1853 — service of a summons upon a non-resident infant defendant under section 135 of the old Code.

    The failure of an insurance company, which has purchased real estate upon the foreclosure of a mortgage thereon owned by it, and has held the same for more than five years, to procure within such five years the certificate of the superintendent of the insurance department prescribed by chapter 466 of 1853, does not affect or divest its rights in such real estate, audit may still sell and convey a good title thereto to a purchaser.
    Where a summons was served upon a non-resident infant defendant in a foreclosure action, under the provisions of section, 135 of the old Code, it was sufficient if, in addition'to' the required publication, a copy of the summons and complaint were deposited in the post-officedirected to the infant at its place of residence. Personal service of the papers upon the infant, or service by mail or personally upon its father, mother or guardian, was unnecessary.
    Submission of a controversy upon an agreed statement of facts.'

      E. D. Oowmtm, for the plaintiff.

      J3. C. Place, for the defendant.
   Dykman, J.:

This is a submission of a controversy without action. The plaintiff: has entered into an agreement with the defendant for the sale of the premises in question, which she has declined to perform, because she is apprehensive of defects in the plaintiff’s title. Ve are therefore required to decide whether a conveyance from the plaintiff will secure to the defendant a good title to the1 premises..

The following facts present the first question: The plaintiff held a mortgage on the premises which was foreclosed. On the sale under the judgment Charles A. Esler became the purchaser for the plaintiff and conveyed the same to the company in December 1876, and they have been held by it from that time without the certificate of the superintendent of the insurance department until April 12, 1883, when a proper certificate was obtained.

Chapter 466 of the Laws of 1853 made it lawful for insurance companies to hold such real estate as should be purchased at sales upon judgments obtained on mortgages for security for loans. But the same law also provided that all real estate so acquired, which should not be necessary for the company in the transaction of its business, should be sold and disposed of within five years after the acquisition of the title thereto, unless the certificate of the comptroller for whom the superintendent of the insurance department is now substituted (chap. 366, Laws of 1859) shall be procured, that the interest of the company would suffer materially by a forced sale 'thereof. Such certificate was not obtained in this case within the five years, but was obtained later. Does the failure to obtain the certificate invalidate or affect the' title of the company in any way. It will be seen that no such consequences are provided for in the law itself. It does not assume to divest the title of the company or suspend its power of sale after that time. It simply imposed on the company a duty to sell within five years or procure the .certificate. No penalty is attached for disobedience and no negative words forbidding or prohibiting the sale thereafter, and as neither such .penalty nor prohibition are expressly imposed or created, they cannot be raised by implication. (Health Department v. Knoll, 70 N. Y., 536.)

The title to this property was absolute in the company, and its power of alienation was without; limit. A power of sale bestowed upon trustees or other parties may be limited in its exercise by time or events, but no such limitation can be imposed by the legislature on the owner. Such an attempt would be a plain usurpation of the right of property. The intention' of this law was doubtless to impose on these companies a duty to dispose of its real estate not necessary for the transaction of its business as soon after its acquisition as was consistent with its interests. The object being to prevent the accumulation of laud by companies organized for purposes of insurance.

Our conclusion is, therefore, that the title of the company is unaffected by the omission to procure the certificate.

There is another question. The summons in the foreclosure action was served on some of the defendants by publication, the order therefor being made March 12, 1873. After the usual publication for six weeks the order required a copy of the summons and complaint directed to the defendant Caroline Harris at West-port, Connecticut, to be deposited in the post-office in the city of New York and the postage paid thereon. This was done. But Caroline was then an infant under fourteen yeais of age, and no copy was su'd to or served on her father, mother or guardian, and no perooU-n service was made on her, such service by mail being the only service made or attempted.

Did the court acquire jurisdiction of her person as a non-resident defendant ? The proceeding was under the old Code of Procedure. Section 134 of that Code providing for the personal service of a summons, where the action was against a minor under the age of fourteen years, required the summons to be served by delivering a copy thereof to such minor personally, and also- to his father, mother or guardian, or if there were none within the State then to any person having the care and control of such minor, or with whom he should reside, or in whose service he should be employed.

Then came the provision for service by publication in section 135. That was, that where the person on whom the service of the summons was to be made could not after due diligence be found within the State, the court or judge might grant an order that the service be made by publication of the summons where the defendant was-not a resident of the State, but had property therein, and the court had -jurisdiction of the subject of the action.

It was required that the order direct the publication to be made in two newspapers, and that a copy of the summons and complaint be forthwith deposited in the post-office directed to the person to be served at his place of residence, where that was known. There is no requirement that these papers shall be sent to any person other than the infant in case of publication; and there is no reason why there should be. No distinction is made in this section between infants and adults, and it follows that a strict pursuit of the statute is sufficient to confer jurisdiction of either class of persons. It is within the competency of the legislature to prescribe the mode of acquiring jurisdiction of the person, and one mode is by. publication. A guardian ad litem was regularly appointed for this infant defendant on motion of the plaintiff and he put in the usual answer.

The reason why the same particularity is not required where the infant defendant is served by publication and deposit is to be found in the effect and character of the judgment. In such case the defendant or his representatives on good cause shown may be allowed to defend within one year after notice of judgment, and within seven years after its rendition on such terms as may be just. The practice prescribed was followed strictly in the foreclosure action, and the judgment obtained was regular. No defect exists in the title, and this objection to it cannot be sustained. Our conclusion is that the defendant should perform her contract with the plaintiff, and that she is entirely safe in so doing. There should be judgment fur the plaintiff for specific performance.

Barnard, P. J., and Pratt, J., concurred.

Judgment for plaintiff upon submitted case, for specific performance.


author: Dykhan, J.:

text:
    MARIE HUSSNER, as Administratrix, etc., Appellant, v. THE BROOKLYN CITY RAILROAD COMPANY, Respondent.

      Ih’espass• — when an abutting owner may maintain am action against a company unlawfully using steam cars in the street.

    An owner of land abutting upon a city street, whose title extends to the center - thereof subject to the right of the public to use it as a highway, may maintain an action of trespass against a company which, without legal authority so to-do, runs upon the portion of the highway owned by him steam engines and cars propelled by steam, to the injury of the premises and of the business carried on by him in the buildings erected thereon.
    Appeal from a judgment dismissing the complaint, upon the -ground that it did not state facts sufficient to constitute a cause of action.

      George W. Broderick, for the appellant.

      Winchester Britton, for the respondent.
   Dykhan, J.:

"When this cause came to trial at the circuit the complaint was dismissed because it contained no cause df action, and we are now to ascertain whether that disposition of the case should be sustained..

The material allegation is that the plaintiff’s intestate was seized and possessed of certain lands in the city of Brooklyn particularly-described, subject to the easement of a common highway, in that portion of the premises called Third avenue. That the defendant wrongfully entered on a portion of the premises which is used as-such public highway, lying between and bounded by the center line of Third avenue on one side thereof, and the' front line of the buildings of the decedent, erected on the said premises, on the other,, and committed acts of trespass and injuries to said premises by running thereon daily, during the period specified, steam engines and cars propelled by steam, to the injury of the said premises in the-depreciation of the value of the said buildings and real estate, and to the injury of the hotel business carried on by the decedent in the building during all the said time.

It is thhs seen that the complaint sets out an unlawful entry and trespass on that portion of the described premises'of the decedent in the use of the public as a common highway, and a use of the same by engines and cars propelled by steam, so that the use is for passage only. No obstruction of this highway is alleged, and no use of the same is set up amounting to a nuisance, but the allegation Is that the defendant has committed acts of trespass and injuries to the premises by running thereon engines and cars. The complaint therefore is for trespass plain and simple.. An important inquiry therefore is whether the title of the decedent extended to the center •of Third avenue or only to the side.

The description begins at the northerly corner of Third avenue and Twenty-fourth street, and runs thence north-easterly along said Third avenue fifty feet. Thence north-westerly in a fine parallel with Twenty-fourth street, one hundred feet; thence south-westerly in a line parallel with Third avenue fifty feet, to Twenty-fourth' street; and thence south-easterly along said Twenty-fourth street one hundred feet, to the place of beginning.

The general principles on which grants of land, bounded on water streams and public highways are construed, are well settled and understood, but difficulty frequently arises in their application to the language of particular grants. The usual presumption is that the grantor did not intend to retain title to the highway, and to receive such construction, the language of the grant must exhibit such intention. Here the boundry commences at the northerly corner of Third avenue and Twenty-fourth street, and not at the intersection of their exterior lines, and runs northerly along Third avenue, and not along its side, and the last course is along Twenty-fourth street to the place of beginning. Here is no reference to the sides of these streets, and no language showing intention to confine the grant to such sides of either street. The language must therefore be construed to carry the title of the decedent to the center of Third avenue.

Assuming, therefore, that the titles of the decedent extended to the center of Third avenue, he held the fee unimpaired and subject only to the easement of a public highway, and the entry of the defendant on the street and the exercise of their claim to use the same for the purpose of a steam railroad, was an unlawful intrusion and a trespass on the land for which damages may be recovered in an action of trespass. (Trustees of the Presbyterian Society v. Auburn and Rochester Railroad Company, 3 Hill, 567; Wager v. Troy Union Railroad Co., 25 N. Y., 526.)

The position that the possession of the decedent was not sufficient to sustain the action of trespass is not tenable, because his possession was coextensive with his title so far as possession can extend to a p.ublic highway, where land is traveled and used as a public highway, no actual exclusive possession of it pan be shown, and trespass cannot be maintained without showing title, but constructive possession is shown by proof of title to the center and actual occupation of the adjoining land. (Willoughby v. Jenks, 20 Wend., 96.)

It may be stated further that the complaint charges that no legal authority has been obtained by the defendant for the wrongful acts set out. Our conclusion is that the complaint contains a cause of action for a trespass. We intimate ho opinion on the extent or measure of damages.

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

Barnard, P. J., concurred; Pratt, J., not sitting.

Order dismissing complaint and judgment thereon reversed and new trial granted, costs to abide event.


text:
    ZIPPORAH R. CLARK, Appellant, v. JAMES MACKIN and WILLIAM S. VERPLANCK, Executors and Trustees, etc., of JOHN P. DE WINT, Deceased, Respondents, Impleaded, etc.

      'Recording — rights of an assignee of a mortgage whose assignment is fii'st recorded, oner an unrecorded assignment — right to compel one homing a lien upon two funds to resort to one of them — right of a second mortgagee to compel an assignment of a prior mortgage, and alsp of a collateral guaranty of its payment held by the owners of the psior mortgage..

    Miller gave a mortgage upon premises owned by him to Impson, which was recorded February 21,1856. On April 80,1856, Impson assigned the mortgage to Matilda Durland, who on April 1, 1861, assigned it to'James Durland, by whom it was on'January 13, 1880, assigned to the plaintiff, who brought this action, to foreclose it. None of the assignments were recorded, but the papers were at all times in the possession of the assignees. May 1, 1863, Miller conveyed the premises to McNeal. October 11, 1873, Impson, without receiving any payment or consideration therefor, delivered to McNeal a satisfaction of the mortgage, which was duly recorded. January 22, 1878, McNeal, in order to secure an antecedent indebtedness, gave a mortgage covering the same and other premises to Ramsdell and others, who had notice of the existence of the prior mortgage. This mortgage was recorded January 26,1876. Subsequently Mackin and others took an assignment of this, mortgage for value and without notice of the existence of the plaintiff’s- mortgage, their assignment being duly recorded on February 2, 1877. In this assignment Ramsdell and the others guaranteed the payment of the mortgage. Under a foreclosure of this mortgage all the premises, other than those described in the first mortgage, were sold, realizing but a small sum. The premises left are insufficient in value to satisfy both mortgages.
    Held, in this action brought to foreclose the mortgage given by Miller to Impson, that the mortgage held by Mackin was entitled to priority over that held by the plaintiff.
    That the plaintiff could not compel the owners of the second mortgage before satisfying it out of the land, to first enforce the covenant of guaranty given by Ramsdell and the others upon the assignment thereof.
    That he was not entitled upon paying the amount due upon the second mortgage to compel the owners thereof to assign the same to him, together with all their rights to] and in the guaranty held as collateral security for its payment.
    Appeal from so much of a judgment, entered upon the trial of this action by the court without a jury, as dismissed the complaint as to the defendants Mackin and Yerplanck, executors.

      Henry Bacon, for the appellant.

      E. A. Brewster, for the respondents.
   Dykman, J.:

This action is an action for the foreclosure of a mortgage, and the material facts are substantially without dispute. Jonah Miller, the owner of the premises in question, executed and delivered a mortgage .thereon to Abraham Impson to secure the payment of ,$1,000. This mortgage was recorded February 21, 1856. Impson assigned the mortgage to Matilda Durland April 30, 1856, and she assigned it to James Durland April 1, 1861. James Durland assigned the same to the plaintiff January 13, 1880, and he now seeks to foreclose it in this action. None of the assignments of this mortgage have ever been recorded, but the papers have been at all times in the possession of the assignees. The premises were sold and conveyed to the defendant Henry Y. McNeal, about' the 1st of May, 1863.

On the 11th day of October, 1873, Impson executed and delivered to McNeal a satisfaction piece of the mortgage without payment or consideration, which was duly recorded. On the 22d day of January, 1876, McNeal executed and delivered to Homer Ramsdell and others a mortgage covering the same premises with others for an antecedent indebtedness and without other consideration.

This mortgage was duly recorded January 26, 1876, and was taken with notice of the existence of the mortgage in suit. This mortgage was assigned to Mackin and others, as executors, for value and without notice of the existence of the plaintiff’s mortgage, and their assignment was duly recorded February 2, 1877. In this assignment Ramsdell and others guaranteed the payment of the mortgage.

The executors have foreclosed this mortgage and under the judgment have sold all the land covered by it except the premises in question, and realized but a small sum. The premises here are insufficient for the payment of both mortgages.

'We have therefore to determine the rights and equities of these parties. Ramsdell & Co. having taken their mortgage for an antecedent debt without paying consideration or parting with any value, and with actual notice of the existence of the plaintiff’s mortgages, were not protected by the recording law. In their hands their mortgage was subordinate to that of the plaintiff. What then is the position of their assignees? They are innocent holders for value and their assignment has been recorded. Aside from the recording act, the assignee of a mortgage takes the place of his assignor and receives the mortgage subject to all equities. (Bush v. Lathrop, 22 N. Y., 535; Crane v. Turner, 67 id., 437.) But now under our recording statutes, where the assignee of a junior mortgage receives his assignment in good faith, without notice of a prior unrecorded mortgage, he is entitled to preference if he records his assignment before the first mortgage is recorded, even though his assignee had notice thereof. (Fort v. Bruch, 5 Denio, 187; Westbrook v. Gleason, 79 N. Y., 23.)

It seems to follow, therefore, that though Ramsdell & Co. held their mortgage subject to that of the plaintiff, yet, as they assigned to ’Ma.clrin and others who had no notice of it, the latter were entitled to preference after they recorded their assignment. (Westbrook v. Gleason, 79 N. Y., 23.)

There is another question. The plaintiff makes contention for the rule applicable where one creditor has a lien on two funds foi the security of his debt, and another has an interest in only one of those funds, without right to resort to the other. Judge Story states the rule thus: If one party has a lien on or interest in two funds for a debt, and another party has a lien on or interest in one only of the funds for another debt, the latter has a right in equity to compel the former to resort to the other fund, in the first instance, for satisfaction, if that course is necessary for the satisfaction of the claims of both parties.” (Story’s Equity Jurisprudence, § 633.) This is a very beneficent rule, and Chancellor Kent, in Cheeseborough v. Millard (1 Johns. Ch., 412), said it was founded in natural justice and was recognized in every cultivated system of jurisprudence. The case of the plaintiff, however, is not within its scope or range. Mackin and his associates have a lien only on one fund or property. They may have a cause of action against Ramsdell & Co., by virtue of their covenant.of-guarantee, but that gives them no lien. They have but one lien, and that is on the same property embraced by the lien of the plaintiff. They cannot, therefore, be compelled to resort to the covenant in their assignment under the rule invoked.

Again, the plaintiff insists that if the Ramsdell mortgage be a prior.lien to that of the plaintiff, it is his absolute legal right to pay the amount due on that mortgage and be subrogated to all the rights of the holders, not only in the mortgage but in the guaranty which they hold as collateral security for its payment. Aside from the difficulty of administering that relief in this action we can find no authority to sustain the position. On payment of the amount remaining unpaid on the Ramsdell mortgage the plaintiff may compel an assignment of that security. ' (Twombly v. Cassidy, 82 N. Y, 155.) But the right of substitution or subrogation in equity to securities applies only to cases of suretyship, or where parties are pledged either personally or by incumbrances on their property for the. debts of others, (Barnes v. Mott, 64 N. Y., 397.) The plaintiffs are not sureties, either personally .or in virtue of their ownership of any incumbered land, and are not therefore situated within the rule. This examination exhausts the question involved and we find no error.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred; Pbatt, J., not sitting.

Part of decree appealed from affirmed, with costs.


text:
    HENRY D. KNIGHT, Appellant, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent.

      Baib'oad corporation — liability of, for cattle, in whatever way injured, beaause.of its-failure to maintain fences on the sides of its tracks — 1850, chap. 140, sec. 44— —1854, chap. 282, sec. 8. . '
    One of the plaintiff’s horses went upon the defendant’s tracks, at a place where a length of fence was down, and ran upon a bridge,where his feet slipped between-the timbers causing him to fall and break his leg and rendering it necessary to kill him.

      Held, that the defendant was liable for the damages thereby sustained by the plaintiff, under the acts requiring railroad corporations to erect and maintain fences on the sides of their road, and making them liable, for a failure so to do, for “all damages which shall he done by their agents or engines to cattle,, horses or other animals.”
    The law was enacted to prevent intrusions npon the tracks of railroad corporations which might result in loss of life to persons traveling upon them; and the-liability of the company attaches in all cases in which the cattle enter upon-the track because of defective fences, without regard to the manner in which they receive the injury.
    Appeal from au order setting aside a verdict iu favor of the-plaintiff directed at the circuit and granting a new trial.

      T. J. & J. V. Lyon, for the appellant.

      Lewis JE. Carr, for the respondent.
   Dykman, J.:

' One of the plaintiff’s horses passed upon the defendant’s track,, where a length of fence was down, ran on to a bridge, where its. feet went between the timbers, its legs were broken and it was necessarily destroyed. The judge at the circuit directed a verdict for the plaintiff and afterwards set it aside on motion on the minutes. From this order we have an appeal.

The question presented, therefore, has reference to the extent of the liability of railroad corporations in this State for damages resulting from defective fences. Does it extend to all such damages, or .only to damage done by the agents or engines of the corporation. This is the statute : “ Every corporation formed under this act shall erect and maintain fences on the sides of their road, of the height and strength of a division fence required' by law, with openings or gates or bars therein. * * * Until such fences and cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses or other animals thereon.”

Thus the statute lays an injunction on railroad corporations to erect and maintain fences on the sides of their road in clear and unqualified terms, and it has been steadily maintained by the courts of this State that the duty so imposed was public, and that the enactment of the statute was induced by public considerations. The purpose of the' law was to protect the traveling public and the owners of domestic animals, and it has received a wide and liberal construction. The object and intention of the statute can be effectuated in no pther way.

After imposing this public duty on these corporations, the statute proceeds to declare that for a failure of compliance they shall be liable for all damages which shall be done by their agents or engines to cattle and horses. Does this measure their liability or does it simply declare some of the consequences of their omission ? This is the precise question involved, and we have no authority to aid in its solution; certainly no reason exists for such limitation of liability. If this law was enacted to prevent intrusion on the railroad track, which might result in loss of life to persons traveling on the railroad, then liability should attach in all cases where cattle escape on the track through defective fences, irrespective of the manner in which they receive injury. No negative words are employed to show the intention of the legislature that the corporation should be liable for injuries in no other cases than those enumerated in the statute, and if it had been intended that their liability should have that extent and no more, some indication of that kind would be found in the language of the law. In any view, the beneficial purpose of this statute will be best accomplished by holding this and similar cases to be within its scope and meaning. Any other construction would be too narrow and tend to deprive the law of its great usefulness.

Again, if the object of this law was in part to protect the owners of domestic animals along the lines of railroads, why should such protection be restricted to cases where they are destroyed in a cer* tain way. If it be answered that it is so nominated in the law, the reply is that the statute does not profess to enumerate all the instances of liability resulting from its violation.

If this horse had been killed by a car running by force of gravity on a descending grade, detached from an engine, the corporation would be liable, and yet the case would not be within the words of the statute. Our conclusion is that the case should be held to. be within the statute.

The order appealed from should -be reversed, with costs and disbursements, the motion for a new trial on the minutes should be denied, and the plaintiff should have leave to enter judgment on his verdict.

Barnard, P. L, concurring.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Order granting new trial reversed, with costs, and judgment ordered upon the verdict.


text:
    ABRAHAM LOTT, Respondent, v. AARON A. DE GRAW, Appellant.

      Tax lease — when it is presumptive evidence of the regularity of all the proceedings— 1877, chap. 268, see. 18 —1878, chap. 226.
    Section 18 of chapter 268 of 1877, as amended by chapter 226 of 1878, relating to the collection of taxes and the sales of land therefor in certain towns in Queens county, provides for the issuing of a lease of the premises sold by the county treasurer, and, further, that such “lease 'shall be presumptive evideuce that such tax was legally imposed and that the proceedings and sale were regular.”

      Held, that it was the intention of the legislature to make the presumption of regularity apply to the assessment and imposition of the tax, and to all the subsequent proceedings leading to, and including the'sale itself, so that the mere production of a tax lease by a party shows him to be presumptively entitled to the possession of the premises and rents, the burden of showing his title to be defective being upon his adversary.
    Appeal from a judgment in favor of the plaintiff, entered upon •the trial of this action by the court -without a jury.
    The plaintiff sued in ejectment to recover the possession of premises situate partly in Jamaica and partly in Flushing, Queens county. . The defendant answered setting up. title' in himself. Upon the trial the plaintiff claimed title under a deed from a referee. The defendant claimed title under two tax -leases from the treasurer of Queens county, one dated August 24, 1878, of the Jamaica part of the property on a sale for the taxes of 1873, the sale having been made on September 1, 1875, for twenty years,'and the other of the Flushing part of the property, dated January 16, 1881, on.a sale for the taxes of 1877, made on July 10, 1879,-for 10,000 years. The defendant relied upon' the tax leases, claiming that under the Queens cbunty statutes they were presumptive evidence that the tax was legally imposed and that the proceedings and sale were regular.
    The trial judge was of the opinion that the presumption must be limited to the proceedings had for the imposition of the taxes and those connected with the sale; deciding, “ Perhaps the presumption does not include former proceedings, certainly it does not extend to the proceedings intermediate the imposition of the taxes and those had for the purpose of effecting the sales.” He therefore held that there was a fatal defect in the defendant’s proof and gave judgment accordingly.
    The question presented was as to the proper construction to be put upon the Queens county statutes. They are as follows:
    Act of May 3, 1869 (chap. 497, Laws of 1869): “An act to'establish a receiver of taxes and to authorize the sale of lands for nonpayment of taxes, and for the collection of unpaid taxes in the town of Flushing, Queens county.”
    Act of March 26, 1873 (chap. 135, Laws, of 1873): “An act to establish a receiver of taxes and to authorize the sale of lands for non-payment of taxes, and for the collection of unpaid taxes in the town of Jamaica, Queens county.”
    On May 10, 1877, a general act was passed (Laws of 1877, chap. 268), entitled “An act in relation to the collection of taxes and the sales of land therefor in certain towns of Queens county.” This act was amended on May 8, 1878. (Laws of 1878, chap. 226.) And on June 1, 1877 (Laws of 1877, chap. 361), and on May 13, 1876 (Laws of 1876, chap. 261), acts were passed amending the special'Flushing and Jamaica acts in respect to the mode in which” notices -are to be given. Both the leases and the sales were subsequent to the passage of the amended act of .1878.
    Section 18 of the'act of 1877, as amended by the act of 1878, provides that “ the county treasurer shall execute and deliver to the person or persons legally entitled thereto a lease .of such premises subscribed by the county treasurer making the sale, or by his successor in office, which lease shall be for the term for which such premises were sold, computing the same from the expiration of fifteen months from the day of sale, which lease shall be presum ptive evidence that'such tax was legally imposed and that the proceedings and sale were regular.

      John E. Parsons, for the appellant.

      D. P. Barnard, for the respondent.
   Dykman, J.:

This is an action of ejectment for land situated in Queens county, partly in the town of Jamaica and partly in the town of Flushing. The plaintiff was the owner of the premises in August, 1873, and the defendent claims title under two tax leases from the treasurer of Queens county. The portion of the property in the town of Jamaica was sold to the defendant September 1, 1875, for the taxes of 1873, and his lease therefor is dated August 24, 1878, and the portion lying in the town of Flushing was sold to the defendant July 10, 1879, for the taxes of 1877, and his lease is'dáted January 16, 1881. These taxes were never paid.'

These leases contain recitals of all the official action rendered necessary by the statutes under which it was all had, and the law relating to the sale of lands in Queens county for the collection of taxest provides that they shall be presumptive evidence that such tax was legally imposed, and that the proceedings and sale were regular. (Ohap. 226, Laws of 1878, § 3.)

The statute therefore makes the lease prima facie evidence that the tax was legally imposed and that the proceedings and sale were regular. The language is broad and comprehensive. The proceedings intended are all the proceedings leading up to the sale after the taxes are imposed or laid on by the board of supervisors, so that the presumption of regularity applies to the assessment and imposition of the taxes; all the subsequent proceedings leading to the sale and the sale itself.

. The due execution of the lease and of the power conferred on the officer to divest the title is made out by intendment of law, and it is not necessary in the first instance to show, that the steps made essential by statute in the imposition of the tax have been taken. Armed with the lease the defendant could’ rest on its efficacy until the owner made proof of some obviating fact.

Any other construction would defeat the manifest intention of the legislature in the enactment of this law. The courts before that had construed previous similar statutes with great severity and strictness, and had held that due execution of the power to sell for taxes must be shown step by step. (Sharp v. Speir, 4 Hill, 76; Striker v. Kelly, 2 Denio, 329; Marsh v. Brooklyn, 59 N. Y., 280.) That sales for non-payment of taxes were in derogation of the common law to divest the title of the owner and that no presumption would be indulged in favor of their regularity. Such were the decisions and such the evil which this law was intended to cure. It was necessary to collect taxes for the support of government, and experience had shown that their payment was evaded and their collection retarded by reason of the uncertainty of the title received by purchasers at tax sales. More than all it was known that they assumed the burden of proving the regularity of the proceedings. This, in most cases, was difficult and discouraged bidding at such sales, and the object of this law was to shift the burden of proof from the purchaser to the owner. The latter can in all cases avoid the burden by the payment of his taxes, and this law so understood will operate as an incentive to do so. On principle therefore the language of this law should receive the full force of its signification.

The only case which construes a statute similar to the one under consideration is Colman v. Shattuck (62 N. Y., 350). In that case section 65 of chapter 427 of the Laws of 1855, "made the deed of the comptroller for land sold for taxes “ presumptive evidence that the sale and all proceedings prior thereto from and including the assessment of the land ” were regular and legal. The Court of Appeals in that case said, without dissent, that “ the party assailing them therefore is bound to establish by sufficient and satisfactory legal evidence the illegality or defect which vitiates and renders them nugatory and void.”

The statute now under consideration is equally comprehensive and should receive the same construction. It follows from these views that on the production of the tax lease the defendant showed himself entitled to the possession of' the premises in question. His title was then presumptively good and the burden was cast on the plaintiff to show it faulty. He made no effort to do so, and the defendant was therefore entitled to judgment.

It is the argument of the plaintiff that the presumption that the tax was legally imposed does not include or apply to’ the action of the assessors, which are preliminary thereto, but the answer is that this view is quite too narrow and contracted, and that the presumption is not only that the tax was legally imposed, but also “that the proceedings and sale were regular.” This must have application to all steps and proceedings required by law.

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

Barnard, P. J. concurred.

Present — Barnard, P. J., Dykman and Pratt, JJ.

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


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    FRANCIS B. BALDWIN, as County Treasurer, etc., Appellant, v CHARLES H. CRARY, KATE COVERT, MARY V. STRATTON, ELIZABETH J. STRATTON and Others, Respondents.
    2 rust funds —power of the eownty treasurer to invest a/nd reinvest the same — he may release portions of the premises described m a mortgage, although no payment be made thereon. .'
    Certain moneys were deposited with, the county treasurer of Kings county, in pursuance of a judgment of the court, which directed him to invest the same for the benefit of a tenant for life. Thereafter, without any special direction from the court, he loaned a portion of the said moneys to one Crary, and received from him a bond and mortgage to secure the repayment thereof. Subsequently, and without any direction from the court, the county treasurer released portions of the premises described in the mortgage from the lien thereof, without receiving any payment from Orary. The portions so released were thereafter mortgaged by Orary to other persons to secure moneys loaned to him by them.
    An action was brought to foreclose the mortgage given to the county treasurer, as against that portion of the real estate not released, and a deficiency having arisen thereon, this action was subsequently brought by the successor in' office of the former county treasurer, to have the said releases declared void and the premises described therein sold under the original mortgage.

      Held, that the county treasurer had power to execute the said releases, and that this action could not be maintained.
    Appeal from a judgment dismissing the complaint, entered upon tbe trial of tbis action at a Special Term.

      Leon Abbott, for tbe appellant.

      Henry A. Monfort, for Kate Covert, respondent.

      Edward M. Soudder, for Mary Y. and Elizabeth J. Stratton, respondents. .
   Dykman, J.:

There was an action for tbe partition of land formerly of John Firtb, which eventuated in a sale; and in pursuance of a provision in tbe judgment $S,953.60 was paid out of tbe proceeds to tbe county treasurer of Queens county to be invested by him for tbe benefit of Sarah Emily Firth, tbe widow of John Firtb, who was to receive the interest thereon during her life for her right of dower in the premises.

The judgment in partition was entered January 26, 1867. On the 18th day of February, 1868, Charles A. Roe, the county treasurer who had received the money, loaned $3,500 thereof to James T. Crary on bond and mortgage without any special direction. Thereafter on the 2d day of November, 1872, Charles A. Roe as .such county treasurer released a portion of the mortgaged premises from the operation of the mortgage by deed of release duly executed, dated on that day and recorded December 14,'1872.

On the 11th day of November, 1873, George W. Bergen, then the county treasurer of Queens county, released another portion of the same mortgaged premises from the operation of the mortgage by deed of release duly executed, dated on that day and recorded January 25, 1875.

These releases were both executed without direction from the court and without the knowledge of the beneficiaries.

On the 4th day of November, 1872, Mary Y. Stratton loaned to J ames T. Crary $2,200 on his bond, and a mortgage on the premises released by County Treasurer Roe, which mortgage was duly recorded December 5, 1872. This mortgage is still outstanding.

On the 20th day of January, 1875, Kate Covert loaned to James T. Crary $1,500 on his bond secured by a mortgage on the premises released by County Treasurer Bergen. This mortgage was afterwards foreclosed and Kate Covert became the purchaser about November, 1879.

In the year 1878 the original 'mortgage was foreclosed by the then county treasurer of Queens county and the unreleased portion of the mortgaged premises were sold under the judginent. That was all the relief prayed for in that action.

Now this action is brought to have the two releases declared void, and to have those two parcels so released sold under the' original mortgage. The complaint sets up all the facts and they were proven on the trial, but the complaint was dismissed.

Is the plaintiff entitled to the relief he seeks in this action ? The original investment of the $3,500 was made by the county treasurer in the direct line of his duty and in the ordinary course of business in his office. He possessed power and authority to receive the mortgage and to satisfy the same of record if it had been paid. He had power and authority to receive payment in part or in whole, and in his official capacity to collect it when due, and institute an action for that purpose; nay more, it was the duty of the county treasurer to invest this money and continue to do so, and that implies all power necessary to deal with it. If any portion of it had been paid he would be obliged to satisfy the mortgages as he possessed power to discharge the mortgage from the record entirely, so he might, by release, discharge it in part or release portions, of the premises from its operation.

Honest loans were made on the faith of these releases, which we found on the records, and the mortgagees should be protected.

All county treasurers now perform the duties undertaken by the treasurers in this case. They invest and collect and reinvest trust funds and use all the ordinary modes o'f transacting such business, and all is done in their official capacity and subject to official and personal responsibility for mal-administration. We do not think the statutes invoked by the appellants have application to the case.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred; Pratt, J., not sitting.

Judgment dismissing complaint affirmed, with costs.


author: Dykman, J.: ■

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    In the Matter of the ALTERING AND WIDENING OF MAIN STREET IN THE VILLAGE OF SING SING.

      Village of Sing Sing — power of the trustees, as commissioners of highways, to widen sts'eets — 1880, chap. S68, sea. 38 — necessity of widening a street — how it is to he certified to.

    The charter of the village o'f Sing Sing declares the village to he a separate road district exempt from the superintendence of the commissioners of highways of the town; constitutes the trustees of the village commissioners of highways therefor, with the usual powers of such commissioners, and authorizes them to lay out, alter or widen any street in the village, without the consent of the land owners, “ provided the necessity thereof is certified to by the oaths of twelve reputable freeholders in the manner required by said article fourth for the laying out of highways through inclosed, improved or cultivated land.”

      Held, that the statutes only required that the necessity of. the improvement should be shown by a certificate made in the form and manner required by the general highway laws, and signed by twelve reputable freeholders of the village, and that it was not necessary that the# freeholders signing it should be drawn and assembled in the manner required by such laws in other cases.
    Certiorari to review the action of the trustees of Sing Sing in altering and widening a street in that village.

      Smith, Lent, for the relator.

      John Gibney, for the village of Sing Sing.
   Dykman, J.: ■

This is a certiorari to review the proceedings of the trustees of the- village of Sing Sing in widening Main street in that village under the provision of the charter. These provisions so far as they relate td this controversy are that the village is declared a separate road district, exempt from the superintendence of the commissioners of highways of the town in which the village is located, and the trustees are constituted commissioners of highways therefor, and for that purpose are granted all powers possessed by commissioners of highways of towns in laying out and altering highways.

On the trustees is also conferred power to lay out, alter or widen any street in the village without the consent of the land owners, “provided the necessity thereof is certified to by the oaths of twelve reputable freeholders in the manner required by said article fourth for the laying out of highways through inclosed, improved or cultivated land.” (Chap, 568, Laws of 1880, § 38.)

The necessity of this improvement was certified by the oaths of twenty-five disinterested freeholders, but they were not obtained and assembled in the manner required by the highway laws of the State. This presents the only question in the case. The relators are two of the commissioners of highways of the town of Ossining without any interest so'far as the papers disclose, and they insist that the proceedings are irregular because the jury certifying to the necessity of the improvement was not properly drawn, that they should have been drawn by the town clerk of the town of Ossining, under. the statutes relating to the general highway system of the State. ' '

£>uch is not our view. The language of the statute is satisfied when the necessity of the improvement is certified in the manner required by the highway laws, that is, where such a certificate is made as required By those laws, and' twelve reputable freeholders certify in that manner.

There exists no reason why the jurors should be drawn by the town clerk and come, as they then would, from the whole town. The requirement has reference to the manner of the certification, and not to the mode of drawing or assembling of the jury.

The village is a separate district. The 'general laws are not of force within its borders, and special provision is made for all proceedings for opening, altering or widening streets. This jury was obtained in pursuance of notice regularly posted, no abuses have crept in and no allegation is made against the necessity, of the improvement.

The proceedings under review should be affirmed,, with costs and disbursements.

Barnard, P. J., and Pratt, J., concurred in the result.

Adjudication of trustees affirmed, with costs.


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    MARY F. GERATY, Respondent, v. BENJAMIN STERN and Others, Appellants.

      Assault — what constitutes one — when an employer is liable for am, assault committed by one of his employes.

    The plaintiff went to the defendants’ store in New York city, to purchase an ulster for herself. After she had examined one and put it on preparatory to its purchase, a floor walker in the employ of fhe defendants approached and told her that she did not wish to purchase the ulster, but was a spy from a rival establishment, and told the saleswoman to take the cloak from the plaintiff, which was done. .

      Held, that this constituted an actual assault, and that the defendants were liable for it.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury and fro.m an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Delos McGurdy and JB. W. BooTcstmer, for the appellants.

      JErastus New, for the respondent;
   Dykman, J.:

The defendants are in the city of New York, and this action is brought against them to recover damages for ill treatment amounting to an assault, alleged to have been received by the plaintiff at the hands of the employes of the defendants.

The jury was justified in finding from the testimony that the plaintiff went to the defendants’ store in New York city to purchase an ulster for herself, that after she had examined one and had it on her person preparatory to its purchase, a person in the employ of the defendants in the store, who is called a floor walker, approached the plaintiff and told her she. did not want to purchase the garment, and used language to indicate that she was a spy from a rival house, and directed the saleswoman to take the cloak from off the plaintiff, which was done.

This was an indignity and a wrong to the plaintiff for which legal liability attaches to some one. It amounted to an assault, which is well defined as an unlawful setting upon one’s person. Are the defendants responsible in the law for this misconduct of their employes ? The liability of masters is not measured entirely by their instructions to their servants. If the act of the servant be within the scope of his authority, and committed in his master’s business, the latter is responsible. (Higgins v. Watervliet Turnpike Co., 46 N. Y., 23.)

In this case there can be no claim that the employes of the defendant were prompted by malicious motives or selfish aims.

Their action was in their line of duty as they understood it. The duty to act was cast on them then and there. Their instructions were not to show styles or give prices to persons who came from other stores to look at styles or obtain prices. Here an emergency arose, where such a case was presented as the employes believed and the duty of deciding was imposed on them. They may have decided unwisely, but their decision and action was clearly within tbe line of tbeir duty, and tbe defendants are responsible for tbe resulting consequences.

It was for no selfish purpose that they submitted tbe plaintiff to indignity, but to serve tbe defendants only, and if they devolved tbe duty of carrying out tbeir instructions on tbeir employes they must -be held responsible for tbe manner in which it is done; no other rule would meet tbe requirements of public policy or public convenience.

Tbe judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.