author: Learned, P. J.: Landon, J.:

text:
    CARL VOIGT and Others, Respondents, v. MARTHA BROWN, Appellant.

      Liability of a married woman on a note — when determined by, the laws of the State where the contract is made, and not by those of the State in which payment is to be made.

    The husband of the defendant, both of whom were domiciled in this State, went into Connecticut and there, as authorized by her, signed her name to an accommodation note, dated and payable in Connecticut, to the order of a firm of which he was a partner. He took the note to New York, procured it to be discounted by the plaintiffs, and received the proceeds thereof.

      Sold, that as the note had no inception until it was delivered to the plaintiffs, the {''contract was made in the State of New York, and was governed by its laws /j and not by those of Connecticut, and that the defendant was liable upon the note, although she would not have been so had the contract been made in Connecticut.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action at the Washington Circuit, by the court without a jury.

      Griswold & Cornell, for the appellant.
    Carter, Hornblower & Byrne, for the respondents.
   Learned, P. J.:

The defendant and her husband were domiciled in the State of New York. He went ídío Connecticut and there signed her name to an accommodation note, dated and payable in Connecticut to the order of a firm of which he was a partner. He was authorized by her to do so. He took the note to New York and there had it discounted by plaintiffs, and he received the money. The question is whether she is liable. The laws of Connecticut do not authorize a married woman to contract except for the benefit of herself, her family or her separate or joint estate.

The note had no inception until it was delivered to plaintiffs. The contract was therefore made in New York. Hence we may eliminate from the case the fact that the note was written in Connecticut. That is of no more consequence than the place -where the paper was manufactured. As defendant’s husband was her agent to make the note, and was also one of the firm of payees, his possession of the note was not a transfer to the payees. The note remained in his possession, as her agent, until its delivery in New York to the plaintiffs. The case is the same, therefore, as if she had delivered the note in New York, either to the plaintiffs or to the payees, to be forthwith negotiated.

The question is one simply of defendant’s capacity. It is not a question as to any construction of the contract, such as rate of interest, days of grace, mode of presentment, and the like. And when reduced to its simplest statement the question is whether a married woman, domiciled in New York, has capacity to make a contract in New York which is to be performed in a State where a married woman has not power to make such a contract.

"We do not see how the place of performance in any way affects the capacity to contract. The law of the place of performance does not forbid her to perform, and, even if it did, that might not affect her capacity. Certainly, when the law of this State says that a married woman may make a contract, neither her privilege to contract, nor the rights of - those with whom she contracts, are to be taken a-way by the law of another State.

These views are sustained by authority. Thus Huberus, Praelect (2 1.^ I. tit. 3, § 5, De Confiictu Legum: “Proinde contracts celebrati secundum jus loci, in quo contrahuntur, ubique tarn in jure quam extra judicium etiam ubi hoc modo celebrati non valerent sustinentur.”

And again, section 12, he says : “ Qualitates personales certo loco alicui jure impressas, ubique circumferri et personam. comitari. cum hoc effect'd, ut ubivis locorum eo jure, quo tales personae alibi gaudent velsubjecti sunt, fruantur et subjiciamtur.” And this he illustrates by saying that in some provinces those who are over twenty are considered to have reached majority, and that they can alienate immovables even in those places where no one is considered to have reached his majority until he is twenty-five. This rule would, for the ends of justice, hold a married woman domiciled in this State, liable upon a contract made by her in a State by the laws of which she had not capacity to contract.

The same doctrine is laid down by Story, J\ (Conflict of Laws, § 66, et seep), and by Kent, J. (2 Comm.,45 8),viz: That the general capacity of parties to contract depends as a general rule upon the law of the place of contract. It is true, however, that Huberus says, section 10: “ Yerum, tamen non itaprcecise respiciendus est locus% in quo contract/as est iziitus, ut si partes alium in contrahendo locum respexeriut, Ule non potius sit consider andusP But that remark does not have reference to the capacity of the parties, as the illustration shows which he gives. That is, that where residents of Frieseland marry wives in Holland and take them at once to Frieseland, the law of Frieseland governs as to community of property between husband and wife. There has been some discussion in boobs and authorities, whether the place of domicile or the place of contract should prevail in determining the 'capacity of the contracting party. See Milliken v. Pratt (125 Mass., 314) for a discussion of this matter; where the validity of the contract was sustained on the ground that it was valid where it was made. (Scudder v. Union Nat. Bk., 91 U. S., 406 ; Foote’s Inter. Law, p. 31; 2 Kent’s Comm., 458 ; Wharton Conf. L., § 114.) But that is a question which we need not decide. Both domicile and place of contract were in New York. We may also cite in support of the views above expressed Bell v. Packard (69 Maine, 105); Hill v. Pine River Bank (45 N. H., 300).

The judgment should be affirmed, with costs.

Bockes, J., concurred.

Landon, J.:

I concur. The defendant had the capacity to make this contract in New York, where she made it. She had the capacity to perform it in Connecticut, the place of performance. The law of the latter State, in denying to her the capacity to make the contract in that State, did not deprive her of the capacity of performing it there. As she competently made a contract, which it was competent for her to perform, there can be no legal excuse for nonperformance.

As our courts have acquired, in this action, jurisdiction both of the person and of the subject-matter, there seems no good reason why they should not afford redress, and overrule the hypothetical and irrelevant defense, namely, that if this contract had been made in Connecticut, it could not have been enforced.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Bocees, J.,

license: Public Domain

text:
    ANNIE M. HOLCOMB, Respondent, v. EMMA D. CAMPBELL, Appellant.
    Evidence— when acts and declarations of a former owner of a mortgage are admitted as a ya/rt of the res gestas to prove its payment.

    Appeal by the defendant, from a judgment against her, entered in Rensselaer county upon the report of a referee, adjudging the mortgage, as to which the controversy arose between the parties, to- have been satisfied and discharged by the payment of the mortgage debt.
    The mortgage was made by the plaintiff and her husband, to Henry and Ephraim Alderman, in April, 1869, and was by them assigned, together with the bond to which it was collateral, to the defendant, July 19, 1884. The plaintiff claimed that the mortgage debt had been fully paid to the mortagees prior to the assignment to the defendant, and, as evidence bearing on the subject of such payment, the plaintiff was.allowed, against objection and exception, to testify to what were called accountings and settlements between her husband, the mortgagor, and the Aldermans, the mortgagees. She testified that she knew of more than one; that she thought there was one in April, 1874, and several others; either that year or the next year; that Ephraim was the one with whom the business was principally done. She then testified as follows : “ There was a general looking over of accounts and bills on several occasions; the first looking over was September 1, 1874; $349.50 was found due my husband, to be indorsed on bond and mortgage; second interview was in April, 1875, $300; third interview, August, 1875, $20 and $35; September, 1876, $130.20; all due my husband from Aldermans; I recollect the transactions of April, 1874; the sum then agreed upon was $300.”
    The court, at General Term, after holding that the findings of fact of the referee were sustained by the evidence, said: “ The principal ground of error, as respects the admission of this evidence is, that it was but an admission of a former holder óf the mortgage, and was inadmissible to affect the rights of the present plaintiff, who thereafter became the assignee, for value, of the security. It should be observed, however, that the transactions spoken of occurred while the relation of the parties was that of debtor and creditor, and related to matters involving that relation. As a transaction relating to and affecting those matters it was admissible, as would be evidence of a money payment by one to the other, had it been made. The evidence was much more in its significance than a mere admission by a former holder of the security, of an existing fact, unaccompanied by any act or transaction between the parties. It proved, if credited, a transaction, the looking over of accounts, adjusting the items, with an agreement between the parties, or, perhaps, a prior understanding between them during the running of the account, as to the application of the balance settled upon, or to be settled upon, by them; and this, as above suggested, at a time when their relation of debtor and creditor remained unaffected by any assignment of any claim or demand then within the scope of their action. It may be well assumed that as yet, that is, until the parties had ascertained the balance in each instance there had been no application of it, but when found by them it was to go in payment of the mortgage. The transaction would be an accord and satisfaction as to the account in each instance of looking over, on an application upon the mortgage of the balance found, as was understood and agreed should be done; and under such circumstances the agreement to make the application would be as effectual by way of payment upon the mortgage as if receipted to that effect or indorsed thereon. In either case the fact of payment would exist, the difference being only the evidence of the fact. Both parties would be concluded by the transaction; the mortgagor from further claim upon the matters of the account,, and the mortgagees from denying the payment upon the mortgage as agreed. '(Davis v. Spencer, 24 N. Y., 391.) The case is covered by the doctrine laid down in Smith v. Schanclc (18 Barb., 344), where it was said in effect, that any agreement between the creditor and the debtor, upon which the latter acted, thereby constituting an agreement entitling him to claim a deduction from the demand by way of payment or set-off before transfer of it, might be proved ; that an agreement is an act done, and thereby differs from a simple declaration, and is provable in like manner as a payment in money or property would be.
    “And it follows that what was said by the parties while the settlement was in progress was admissible as part of the res gestm. In the view here taken of the ease, the authorities cited by the counsel for the appellant on this branch of it have no application. The transaction testified to, if credited, constituted, both in equity and law, payments upon the mortgage, and they were open to proof as such, the same as would be a payment in money or in property. So, too, payment of a bond may be established by parol proof. See also, as bearing on this case, Prowty v. Price (50 Barb., 344). ¥e think the evidence above considered was properly admitted.”

      B. E. Andrews, for the appellant.

      Jam,es Lansing, for the respondent.
   Opinions by

Bocees, J.,

and Landón, J.; Learned, P. J., not voting.

Judgment affirmed, with costs.


author: Learned, P. J.;

text:
    ADAM YAGER, Appellant, v. CHARLES PERSON, Respondent.

      Witness — what questions may he ashed for the purpose of discrediting him.

    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury at the Greene Circuit.
    The action was brought to recover damages alleged to have been sustained from an assault and battery committed upon the plaintiff by the defendant.
    The court, at General Term, said: “ It is settled that it is not competent to inquire into charges and accusations, or even indictments, for the purpose of discrediting a witness, because ‘ they are consistent with innocence, and may exist without moral delinquency.’ (People v. Irving, 95 N. Y., 544.) It is, however, competent to inquire of a witness as to his past conduct. (People v. Casey, 72 id., 394.)
    “ Under which of these two heads of inquiry did the questions in this case come ? Plaintiff, on cross-examination, was asked: £ Have you been sued for assault and battery? A. Yes. Who sued you ? A man by the name of Brick. Did he obtain a. verdict against you? I believe he did. Did you have any trouble with Jeremiah Plank? A little trouble; he did not build the lime kiln as he agreed. Did you have any trouble with William Olliver? No, sir; no more than a little wood that I had sold him, and he did not cord it right.
    ' “ Now, whether plaintiff had been sued for assault and battery was immaterial. Even a judgment against him was not a conviction of a crime. The inquiry made was not as to the plaintiff’s having committed an assault, as in People v. Casey (nt supra). The defendant, admits that the question as to being sued was improper, but claims that it was afterwards justified by the fact that Brick recovered, which recovery, defendant says, established the fact of the assault. But we think that it is stated in Beal v. People (42 N. Y., 271) the inquiry should be as to specific acts of the witness, and not as to the success of litigations against him. Of course a conviction of a crime stands on a different ground.
    “ The other questions, respecting trouble with Plank and Oliver, the defendant justifies on the ground that by inference they referred to assaults. They were not so expressed, and they were not so answered. There was an affray between these parties, and contradictory evidence in respect to it. Each of the parties testified and gave different versions of the affair. It may have influenced the jury to have evidence that plaintiff had been sued for assault and battery, and had had trouble with two or three persons. We think these errors cannot be disregarded.
    ££ Judgment reversed, new trial granted, costs to abide event.”
    A. G. Griswold, for the appellant.

      Frank II. Osborn, for the respondent.
   Opinion by

Learned, P. J.;

Bookes and Landon, JJ., concurred.

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


author: Barnard, P. J.:

text:
    CAROLINE C. BLATZ, Respondent, v. JACOB ROHRBACH, Appellant.

      Civil damage ad— what evidence will support a verdict that a suicide resulted from ' intoxication.

    Upon the trial of this action, brought under the civil damage act to recover damages sustained by reason of the plaintiff’s husband having committed suicide while intoxicated, evidence was given tending to show that after playing cards and drinking in the defendant’s saloon he arrived at home at about twenty minutes to eleven, very much intoxicated; that the plaintiff, after attempting to quiet him, took her baby and went up stairs, leaving her husband below, it not being an unusual thing for him to sleep down stairs. In the morning he was found hanging by the side of the closet door, having evidently committed suicide. The deceased was the father of ten children, the youngest but a few weeks old. He was addicted to strong drink, but made a comfortable living for his family. He had formerly attempted suicide, but whether or not, at the time of making such attempt, he was sober or otherwise did not appear. A paper was found containing the words “give my watch to my boy,” and stating that his brother-in-law owed him fifty-seven dollars.

      Held, that a verdict finding that the suicide was the result of the intoxication ' would not be set aside by the appellate court.
    Appeal from a judgment in favor of tbe plaintiff for $3,216.82, entered upon the verdict of a jury at Westchester 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.

      Samuel G. Adams and John S. Graber, for the appellant.

      Charles H. Noxon, for the respondent.
   Barnard, P. J.:

The plaintiff’s husband arrived at his home in Mt. Yernon, on the 4th of March, 1885, at about twenty minutes to eleven, ,p. m. His wife, the plaintiff, tried to quiet him, as she testifies he was very much intoxicated. She failed to do so, and in about an hour after he came home the plaintiff took her baby and went up stairs to bed, leaving her husband below. It was not an unusual thing for the husband to sleep down stairs. In the moaning he was found hanging by the side of the closet door, having evidently committed suicide. The plaintiff brings this action against the defendant under chapter 646, Laws of 1873, known as the civil damage act. She gave proof tending to show that the defendant sold or gave away some two or three glasses of beer to her husband on the night in question. A very sharp contradiction is made as to the condition of the husband when he left the saloon of the defendant; but in view of the fact that the husband arrived at the saloon at half-past seven, p. m., and played cards there, when the result, in some friendly way, entitled the players to drink,1 and in view of the fact that the habits of the husband were bad, the issue upon the intoxication was well found in favor of the intoxicated condition of the husband by reason of liquor, whether beer or other drink, sold to him by the defendant. Added to this, both the plaintiff and her daughter were explicit in their statements as to an extreme condition of intoxication of the deceased husband and father. Did this state of intoxication induce the suicide ? The question cannot ordinarily have any direct proof. It must be inferred, and the case proven is that he was the father of ten children, the youngest but a few weeks old. He was addicted to strong drink, “ but made a comfortable living” for this large and helpless family, as only two earned their own board. He had formerly attempted suicide, but whether or not he was then sober or otherwise does not appear. There was found, after the suicide, a paper containing the words, give my watch to the boy,” and that his brother-in-law, one Johnson, owed him fifty-seven dollars. This is the case, and the jury have found the suicide the result of the intoxication produced by the defendant. An'appellate court cannot properly set aside the verdict. (Neu v. McKechnie, 95 N. Y., 632.)

There was no proof of insanity, and it was unnatural ánd, therefore, unusual for a father, with a.n undisturbed brain, to deliberately leave a wife and so many helpless children behind him, under the circumstances surrounding the suicide. The jury were told that to justify a verdict they must find that the intoxication was to such an extent as to deprive the deceased of the natural use of his faculties and to render him incapable of caring for himself, and that was to be proven and not derived from speculative opinion, and that the intoxication caused the act. The damages are not excessive. There was proof tending to show a request to the defendant’s wife, while in charge of the bar, not to sell any more strong drink to the deceased husband of plaintiff. This notice was given by plaintiff, and every circumstance stated ■which should have been heeded.

The judgement should therefore be affirmed, with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    CLARA R. ATKINSON, Respondent, v. JOHN A. BOWMAN, Appellant.

      Gh'ant of lands by the crown — construction of it— the town of Bast Hampton took title under the grant from the crown.

    The tract of land which now constitutes the town of East Hampton was granted by the crown to the town and not to the persons called the “proprietors,” who had bought the ti’act from the Indians, and a valid title to any land therein must be derived from the town and not from the said “proprietors.”
    Appeal from a judgment in favor of the plaintiff, entered in Suffolk county upon the report of a .referee.
    The action was brought to recover the possession of a lot of upland in the town of East Hampton, Suffolk county. The plaintiff claimed title from the original proprietors, their heirs and assigns, and the defendant claimed title under a quit-claim deed from the trustees of the town of East Hampton.

      The referee found that the native Indian proprietors of the tract of land, which is now the town of East Hampton, in the year 1648, by deed, conveyed to Theophilus Eaton and Edward Hopkins and their associates the said tract. In 1651, Eaton and Hopkins conveyed the said tract of land to thirty-nine individuals called proprietors. These proprietors obtained a confirmation of their purchase by a patent from Richard Nicholls, Esq., “ Governor General under his Royal Highness, James, Duke of York,” bearing date March 13,1666, recorded in the records for the county of Suffolk.
    Another patent, dated the 9th day of December, 1686, was issued by Thomas Dongan, “ Captain General, Governor in Chief and Yice Admiral of the Province of New York, and its dependences, under his Majesty, James ye Second, by the Grace of God, of England, Scotland, France and Ireland, King, defender of the-faith,” etc., confirming the former grant or patent of Richard Nicholls, and confirming the title of the proprietors, not only to that portion of the lands purchased by them of the native Indians that had theretofore been allotted and divided between them, but confirming, also, their title to all of such tract or tracts of land of the original Indian purchase that remained common and undivided, to wit, “ and as for and concerning all and every such parcel or parcels, tract or tracts of lands remaining of the granted premises not yet taken up or appropriated to any particular person or persons, by virtue of the before recited deed or patent, to the use, benefit and behoof of such as have been purchasers thereof, and their heirs and assigns, forever, in proportion to their several and respective purchases thereof made as tenants in common,” etc. (See Dongan Patent, recorded in the seeietary’s office, Liber No. 2, Book of Patents, begun 1686.)
    The said purchasers or proprietors of the land so purchssed of the native Indian proprietors, and allowed and confirmed by patents as aforesaid from the colonial governors, with their heirs and assigns, thereafter made various allotments and divisions between them of such common and undivided lands belonging to them, and used and enjoyed the same, not as public property belonging to the town of East Hampton, or as corporate property, but as property belonging to them individually, as tenants in common, in shares or rights ascertained according to the amount paid by or on behalf of each purchaser. The said purchasers or propriety's paid the consideration for the original conveyance of said tract of land and for the patents, and also the quit-rent.
    The said proprietors exercised jurisdiction and acts of ownership over such common lands from the date of purchase and confirmation by patent, and from time to time directed and authorized the sale, lease, exchange and use of different parcels of said lands.
    The original trustees of the town were themselves of the original purchasers or proprietors. They occasionally acted for the proprietors, when authorized and directed so to do, by resolution of. the proprietors at their meetings, with reference to the use of the common and undivided lands, and kept an account with the proprietors.
    The term “ thirteen acres of commonage ” means one full share. The undivided lands were originally put into forty-seven shares or lots. Each lot or share consisted of “ thirteen acres of commonage,” not in actual size, but that was simply the unit of value. The proportion that each proprietor had in the first division or allotment of land was the basis for all future divisions, and determined the proportion of each proprietor for himself, his heirs or assigns, in all future divisions or allotments of the remaining common lands. These lands were not all divided or allotted at one division. There were many divisions. The proprietors met and determined, from time to time, how many acres of the still undivided land should be allotted, and then the allotment was made' by committees or surveyors,'or other agents of the proprietors, and each proprietor was allotted his share according to his original right or proportion. A few parcels or tracts of such common lands remained unallotted or undivided after the last allotment was made by the proprietors, their heirs and assigns.
    The premises described in the complaint are a part of such common lands that have never been allotted or divided. Said land in question is wild, uncultivated, unimproved, and until recently uninclosed, and not until recently in the occupation of any particular person. The defendant, before the commencement of this action, took exclusive possession of, and has occupied, and still occupies, the same, to the exclusion of the plaintiff, under a claim of title from the trustees of the town. The plaintiff has demanded possession, which the defendant has refused.

      Edward M. Atkinson, for the appellant.

      Henry G. Platt, for the respondent.
   Barnard, P. J.:

The facts in this case are undisputed. Eaton & Hopkins bought a tract of land, in 1651, of the Indians. This tract is now the town of East Hampton. James, Duke of York, owned the entire island, by grant from King Charles, second. The governor-general, Nichols, under James, Duke of York, ratified the purchase. This patent recites that the town is in possession of “ several freeholders and inhabitants,” who have purchased the land, and confirms the purchase unto the purchasers to a justice of the peace and six others, named “as patentees for and in behalf of themselves and their associates, the freeholders and inhabitants, of the said town, their heirs, successors and assigns.”

By the same charter the “said patentees and their associates” were granted “ all the privileges belonging to a town within the government.” The patent or charter of Nicholls was given in 1666, and in 1686 Captain-General Dongan, under James, Duke of York, who had then become King of England, granted a charter to the same persons as were named in the Nicholls patent. This Dongan charter also recites that the patentees were acting “for and in behalf of themselves and their associates, the freeholders and inhabitants of the town of East Hampton.” A board of trustees is created by the charter. This board included the patentees under the Nicholls charter, and adds others,'and conveys all the lands of the town to the new board as “trustees of the freeholders and commonalty of the town of East Hampton and their successors.” This grant was one to the freeholders and inhabitants of the town. It was to be in trust for the use of the inhabitants of the town. (Trustees of East Hampton v. Kirk, 68 N.Y., 459; S. C., 84 id., 216.)

Whatever use or possession was made by what are termed the proprietors from the charter, was entirely useless for any purpose. The allotments made in severalty rested on a sound basis of title. This was the. grant from the crown to the town, and the town allotment to the individuals, who thereafter held in severalty. The unallotted lands continued to belong to the town, and the defendant’s title thereto from the town is the only title.

The Montauk bill is an entirely different oue. It had not been acquired by the town at the date of the Dongan charter, and the town was authorized to get a title. Subsequently, no doubt, one was obtained, and it had been used as private property for the purposes of pasturage for very many years. This was an allotment to individual uses, to all legal intents and purposes.

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

Pratt, J., concurred.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HANNAH M. STEVENS and ELIZABETH S. MILLER, Appellants, v. ABRAHAM LOTT, Surrogate of the County of Kings, Respondent.

      Surrogate — order opening a decree — how reviewed — Code of Oivil Procedure, sea. 2481, sub. 6.
    In an application made by tbe relator, for a final accounting by the administrator of one Stevens, the accounts of one of the administrators, Miles, which were the subject of much objection, were referred to a referee, who made a report which was confirmed by the surrogate. Before a final decree was signed, the administrator Miles moved to open the decree upon the ground that he had omitted to credit himself with a large sum, which had been paid to one of the relators. The surrogate permitted him to file a supplemental account, and referred the same back to the referee to hear and determine the question arising upon the account, and to report back the testimony. Thereupon the relators applied for a writ of mandamus, commanding the surrogate to forthwith make and sign the decree.

      Held, that the application was properly denied.
    That the order of the surrogate was reviewable by appeal, and that the case was not one in which the writ should be issued.
    Appeal by the relators from an order made at the Kings county Special Term, denying a motion for a peremptory mandamus commanding the surrogate of Kings county to forthwith make and sign a decree in a matter in which they were interested.

      Merritt JE. Sawyer, for the appellant.

      Charles J. Patterson, for the respondent.
   Barnard, P. J.:

There is no case made for a writ of mandamus. The relators applied to the surrogate of Kings county for a final accounting. The account of Nathaniel Miles, one of the administrators, was the subject of much objection, and the same were referred by the surrogate to Mr. ~W. S. Coggswell. After a protracted hearing the referee made a report which was confirmed by the surrogate. Before a final decree was signed, the administrator Miles made an application to open the decree, upon proof that he had omitted to credit himself with a large sum, which had been paid to one of the relators, Mrs. Miller. The surrogate permitted Miles, the administrator, to filo a supplemental account thereof,” with vouchers, and the same was referred back to the referee to hear and determine the questions arising upon the account, and to report back the testimony. This order was within the statute power of the surrogate. By section 2481, subdivision 6, the surrogate has power to open, vacate, set aside or modify a decree, or to grant new trials. His order in such a case is appealable, and, if erroneous, can be corrected by force of the same section. Mandamus is not a remedy by which such an order can be disregarded. The supplemental, account involved the opening of the decree so far, and the duty of the surrogate was not a^ ministerial one to sign the decree, as it would have been if no. supplemental account was permitted.

The order should be affirmed, with fifty dollars costs.

Dykman, J., concurred.

Order refusing writ of mandamus affirmed, with costs and disbursements.


text:
    ANDREW MARTIN, Respondent, v. EMANUEL ROTHSCHILD, Appellant.

      Chattel mortgages — where they should he filed in Kings county — SB. 8. (6th ed.), 143, see. 11; 1 B. 8. (6th ed.), 931.
    Chattel mortgages upon property in the town of Klafcbush, Kings county, should be filed in the office of the clerk of that town, and not in the office of the register of Kings county.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Kings County 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.

      Morris & Pearsall, for the appellant.

      William J. (xaynor, for the respondent.
   Barnard, P. J.:

The plaintiff claims title to certain personal property by force of a bona fide sale to him thereof, by one Samuel Warded. The defendant claims that Samuel and John Warded mortgaged 'the property to him by a chattel mortgage. The Wardells lived in Elatbush, King’s county, and the mortgage was filed in the town cleric’s office of that town. The Court held that it should have been filed in the register’s office of Kings county. This was an erroneous ruling. The Revised Statutes provide for the filing of personal or chattel mortgages. In the city of New York the proper place is the register’s office. In ad the other cities of the State, and in the towns of the State in which a county clerk’s office is kept, the instrument must be filed in the county clerk’s office, and in each of the other towns of the State, in the office of the town clerk thereof. (3 R. S. [6th ed.], p. 143, sec. 11.)

It would be plain that the office of the town clerk of the town of Elatbush was the proper place to file the mortgage but for the act creating a register for Kings county. By this act ad that part of the duty of the county clerk of Kings county, which in the city of New York is required to be done by the register of deeds therein, shad be done by the register of Kings county, and the clerk of Kings county was forbidden to perform sucb duties. (1 R. S. [6th ed.], 924.)

The act in question did not change the Revised Statutes in respect to those towns of a county outside of the town in which the county clerk’s office was kept. The county clerk of Kings county could not, before the act creating the register was passed, file a Flatbush mortgage, and it is only the duty of the county clerk of Kings county which the register is to perform.

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

Pratt, J., concurred.

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


author: Barnard, F. J.: Pratt, J.

text:
    In the Matter of the Judicial Settlement of the Estate of CHARLES B. GRAY, Deceased. (Claim of SARAH B. LOCKWOOD, Appellant.)

      Reference of disputed claims against an estate — what claims may be passed by the referee — his report, when confirmed, binds the surrogate and can only be reviewed on appeal.

    A claim, presented to the administrator of one Charles B. Gray by the appellant, who had indorsed and became surety upon a paper made by Charles B. Gray and C. G. Lockwood, having been rejected by him was referred by consent. The paper was used in a business which Gray and Lockwood were carrying on as partners. The referee reported that the claim was a claim against the estate of Charles B. Gray, and was to be paid with the other individual debts of the deceased. This report was confirmed by this court. Upon the final settlement of the estate a decree was entered directing that the individual creditors were entitled to be first paid in full, and that the balance should be divided among the partnership claimants, amohg which latter was included the appellant. Held, that the decree should be reversed as the report of the referee, having been confirmed by this court, was binding upon the. parties and the surrogate and could only be reviewed by an appeal. (Pratt, X, dissenting)
    Appeal from a decree of the surrogate of Orange county, entered on the final judicial settlement of the estate of Charles B. Gray, deceased.

      The appellant was surety and joint maker upon a joint and several promissory note for $2,000, an accommodation indorser upon a similar note of $170, and an accommodation indorser upon four joint notes, aggregating $860'. All of these notes were signed by Charles JB. Gray and C. G. Lockwood. All have been paid by the appellant and the notes are now in her possession.
    Charles B. Gray and C. G. Lockwood were, in 1875, copartners doing business under the firm name of Gray & Lockwood. The assets of the firm have been disposed of. The firm ceased to do business several years before the decease of Mr. Gray, and both the firm and its surviving member are insolvent. The claims of Mrs. Lockwood were duly presented to the administrator, were by him rejected, and a reference was had thereon, under the statute, relative to claims against estates of deceased persons. The referee reported that all of Mrs. Lockwood’s claims were just demands against the estate of Mr. Gray, and that she was entitled to share equally with his individual creditors in its distribution. Judgment in accordance with his report was duly granted and entered.
    The surrogate was requested to find that the judgment of the Supreme Court was conclusive upon him as to the matters therein determined,which he refused to do, and an exception was taken to such refusal. He was also requested to find separately that the appellant was entitled to share equally with Mr. Gray’s individual creditors as to the amount paid by her on the $2,000 note, but this request was refused and exception duly taken. Like requests were separately made as to the sums paid on the $170 note, and on the other notes. These requests were denied, and exceptions were taken to such refusals. The surrogate held that all of Mrs. Lockwood’s claims were, in effect, debts of the firm of Gray & Lockwood, and that payment must be deferred until the individual debts of Mr. Gray had first been paid in full.

      C. E. Cuddébaok, for Sarah E. Lockwood, claimant, appellant.

      Lewis E. Carr, in person, and for individual creditors of Gray, respondent.
   Barnard, F. J.:

Thé judgment of the Supreme Court was binding upon the Surrogate’s Court. The appellant held claims, as she alleged, against the estate of Charles B. Gray. The administrators rejected the claim. It was referred, under the statute, and it appeared that the appellant had indorsed and become surety upon papers made by Charles B. Gray and G. C. Lockwood. They were partners, and intended’to use the money in their business, and did so. The referee reported that the claim was a claim against the estate oi Charles B. Gray, and entitled to share with the individual creditors of the deceased. This report was confirmed by this court. The statute is very general in respect to claims against deceased persons, but broad enough to determine whether a creditor was entitled to share with the individual creditors of deceased, or whether the claim was one which must await the payment in full of partnership debts before it was entitled to payment out of the assets. Besides this, it was the very thing submitted to the referee by both parties, by consent to adjudicate upon her claims against the estate, and the adjudication in a court having jurisdiction of the subject-matter and the parties was binding, and could only be reviewed by appeal. (Fisher v. Hepburn, 48 N. Y., 41.) It was as valid as if commenced by ordinary process. (2 R. S., 89, § 37.)

As to the $2,000 note, the appellant was a surety. It was a joint and several note, and when the surety paid it she took the place of the debt, as one against the individuals who made the note and each of them.

The decree should be reversed and the proceedings remitted to the Surrogate’s Court, with directions to allow the appellant’s claim as an individual debt against the estate, with costs to appellant out of the estate..

Dtkman; J., concurred.

Pratt, J.

(dissenting):

On the reference under the statute the order of distribution of the assets of the estate was not in question. That was not a question which the administrator could legally submit in that proceeding, and what was done in that respect was not binding on the other creditors. They now have, for the first time, the opportunity to be heard. The jurisdiction of a court to render a judgment can always be inquired into.

The decree of the surrogate should be affirmed.

Decree of surrogate reversed and proceedings remitted, to tbe end that this appellant’s claim be allowed as an individual debt. Costs of the appellant out of the estate allowed on appeal.


text:
    CHARLES RAHT, as Executor, etc., of JULIUS E. RAHT, Deceased, Plaintiff, v. HENRY Y. ATTRILL and Others, Defendants. (Proceedings as to Surplus Moneys.)

      Receiver of a corporation — power of the cowrt to direct him to issue certificates to pay wages due to employees — when they cannot be made to affect a prior lien by mortgage.

    Upon an application for the distribution of the surplus moneys arising upon the foreclosure of a mortgage, subject to which the Rockaway Beach Improvement Company had purchased the mortgaged premises, it appeared that after the purchase, and.in April, 1880, the company executed a mortgage on the same property to one Soutter, trustee, to secure the payment of 700 bonds of $1,000 each; that in August, 1880, the company having become embarrassed, one Attrill, a large stockholder, brought an action against it, to which neither the trustee of the said mortgage, nor the holders of bonds thereunder, were made parties, praying for the appointment of a receiver and the dissolution of the company. In this action an order was made appointing a receiver, and thereafter ex parte orders were made authorizing the receiver to borrow $100,000 to pay wages due the workmen and to issue certificates therefor, which certificates were to be a first lien upon all the property of the company, and have priority over the mortgage to Soutter, as trustee.

      Held, that there was no principal upon which the claims of employees for labor performed, before the reoeiver was appointed, could be so extended as to impair or postpone the lien of the mortgage.

      Metropolitan Trust Company v. Tonawanda Railroad Company (108 N. Y., 245) followed.
    That affidavits showing that the property was in danger of being destroyed from the passion of unpaid workmen unless such certificates were issued, did not authorize the court to make the order.
    That the fact that Soutter was a stockholder and director of the company, as well as the trustee of the bondholders, and that as one of the directors he approved of the orders authorizing the certificates to be issued, did not prove that he, as trustee, consented to violate his duty to the bondholders, even if he could represent them for such a purpose.

      Appeal, from an order made at the Kings county Special Term, confirming the report of a referee as to the distribution of certain surplus moneys arising upon a sale under a decree of foreclosure.
    In February, 1880, the Rockaway Beach Improvement Company (Limited) was organized under the business corporations’ act (Laws 1875, chap. 611). It bought over 100 acres of land at Rockaway Beach, subject to a purchase-money mortgage for $72,000, made by Henry Y. Attrill to one Littlejohn. Littlejohn assigned to Raht, whose executor brought this action of foreclosure. On April 1, 1880, the Rockaway Beach Improvement Company (Limited) executed a mortgage on the same property to "William K. Soutter, trustee, to secure the payment of 700 bonds of $1,000 each. Twenty-six of these bonds were disposed of for value, the balance were pledged as collateral for loans to the company. The company became embarrassed, and on* August 2, 1880, Henry Y. Attrill, a large stockholder, began an action against the company on behalf of himself and all other stockholders who should unite with him, praying for the appointment of a receiver and the dissolution of the company.
    The complaint alleged the organization of the company, February 16, 1880, capital stock, $700,000; the pledging of $700,000, first mortgage bonds, at fifty cents on the dollar, to secure loans to the company; that there was due for materials, $100,000; on contracts for furniture, $130,000; for wages, $60,000; that the men had refused to work; that one-half had left, the others were working on promise of payment; that large sums will be necessary to complete the work; that no provision has been made therefor^ nor to meet maturing loans on bonds, which will be sacrificed; that delay ensues, depreciating the value of the property; that plaintiff has been unable to get a statement of the affairs of the company, though willing to assist it by large advances; and feared that a continuance of the then improvident management will result in serious loss to plaintiff and the company; that the hotel and laud are the only resource for the payment of the company’s debts; that, in its present condition, it is wholly unproductive; that the company is insolvent, or nearly so; that this can only be prevented by intervention of the court and appointment of a receiver, and prays for dissolution of the company and appointment of a receiver. Hpon this complaint alone Mr. Justice Donohue made an order, August 2, 1880, appointing John A. Rice receiver of all the property and effects of the Rockaway Beach Improvement Company (Limited) to take possession of and administer the same for the benefit of all concerned. On the 3d of August, 1880, the same judge made an ex parte order on the affidavit of Benjamin E. Smith, the general manager of the company, authorizing the receiver to borrow $100,000 to pay wages due the workmen and issue certificates therefor, and, also, to borrow $10,000 to purchase materials necessary to complete the hotel.
    The affidavit of Mr. Smith is dated August 3, 1880, and is, in substance, as follows: The company is in process of building a hotel, having nearly 2,000 men employed. Owing to delay in paying, they all, a short time ago, refused to work; one-half left. About 800 were then working under promise of payment; that no provision has been, or can be, made for payment by the company; that if not paid the men will stop work, and this deponent fears a serious disturbance; that it is imperative that the receiver in this cause be authorized to borrow $100,000 to pay the workmen, which can be raised on receiver’s certificates. On the 11th of August, 1880, an ex parte order was made by the same judge authorizing the issue of receiver’s certificates to the amount of $110,000 to be paid to the employees of the company, said certificates to be a first lien upon all the property of the company, and prior to the mortgage to William Ef. Soutter, trustee. A similar order was made, August 17, 1880, limiting the amount of certificates at $130,000. Under this order Drexel, Morgan & Co., Morton, Bliss & Co., and Hatch & Peters, took $110,000 of receiver’s certificates at par for cash, and they have been awarded the surplus moneys arising out of the sale of the mortgaged premises in preference to the holders of bonds secured by the prior mortgage to W. K. Soutter, trustee. The legality of this decision is the question brought up for review. In addition to the papers before the court, and on which alone it acted, the holders of the receiver’s certificates sought to sustain their claim by introducing extraneous evidence to the effect that after the appointment of the receiver and the making of the affidavit of August third by Mr. Smith, the workmen were in a state of riot, threatening to fire and destroy the hotel. They refused to take the receiver’s certificates, and mobbed three or four men who had done so; that from this cause the property was in great peril. At a mass meeting of the workmen they consented that a Mr. McDonald should negotiate $110,000 of receiver’s certificates, which he subsequently did, to Drexel, Morgan & Co. and the others, as above stated. This evidence was admitted over appellant’s objection and forms the basis of a finding in favor of the receiver’s certificates as an equitable lien.

      Lewis Sanders and Thomas M. Wheeler, for the bondholders, appellants.

      John L. Cadwalader and James B. Ludlow, for claimants Morton, Bliss & Co., Drexel, Morgan & Co., and W. B. Hatch.

      James MeWamee, for George H. Daley, claimant.

      Clarence D. Ashley, for Attrill & Marache, holders of receiver’s certificates, appellants.

      Edward S. Clinch, for Robinson & "Wallace, mechanics’ lienors, and Aaron A. De Grauw, receiver, etc., appellants.-
    B. W. Keene, for defendant, Barbara Edward.
   Barnard, P. J.:

One of the principal points involved in this appeal has, since the argument, been decided by the Court of Appeals in the case of Metropolitan Trust Company v. Tonawanda Valley, etc., Railroad Company (103 N. Y., 245). In that case, as in this, the Special Term made an order that certain receiver’s certificates given for labor performed before the appointment of the receiver, should be preferred to a mortgage lien which existed upon the property. The Court of Appeals held that there was no principle upon which the claim of employees for labor performed before the receiver was appointed, could be so extended as to impair or postpone the lien of the mortgage. The Court of Appeals, in its opinion, calls this class of creditors “ rpere general creditors, with no special equities,” as against prior liens.

The present case differs only in this, that instead of an appeal being taken from the order authorizing the certificates, the question is first raised upon the reference as to the distribution of the surplus moneys under tlie purchase-money mortgage. The appellant claims that the certificates awarded preference on claims with special equities.” The property was in danger from the passions of unpaid workmen, and these certificates were used to prevent its destruction. The Court of Appeals decision seems to have been made upon a different theory. In that case the claim was made that the property had been enhanced by the labor of the workmen which was included in the mortgage. The court says in reply to this, it is easy to see that under such a plea the lienor might be entirely defeated, and the foreclosure of his mortgage rendered inoperative and useless. Such a result, except upon his consent, the court have no power to sanction.

The next question is whether theuorder was consented to in such a way as to be a formal estoppel against the mortgage lien. The difficulty here principally arises from the fact that Soutter is at once stockholder and director in the company, and trustee for the bondholders. As one of the directors, he consented to the action to dissolve the corporation, to the appointment of a receiver, and he approved of the orders authorizing the certificates in question. This is fairly inferable, although he denies in his testimony that he knew of the proceedings, except from the publication of the proceedings from time to time in the newspapers. . No decree was entered, and as he was trustee there is no consent. When the certificates were authorized the trustee was not a party to the action. To hold, under this inconclusive proof, that the trustee, as trustee, consented to violate his duty to the bondholders under the mortgage, would not be warranted even if the trustees could represent the bondholders for such a purpose. After a careful examination of the case, we think that the weight of authority is not of an order which sets aside liens to the advantage of a general creditor. That it is only the income of the property which courts apply to the payment of current expenses before the mortgage debt is paid. That it is not right to entirely displace the lien. (Burnham v. Bowen, 111 U. S., 782.)

There were no earnings, and there are no receivers’ certificates which have a right of payment before the Soutter mortgage, including the Daily certificates.

The order confirming report should be reversed, and the report set aside, and order of reference vacated, costs to tbe trustee appellant out of the fund, and to the respondent on his appeal as to the Daily claim, out of the fund. •

Dykman, J., concurred.

Order confirming report reversed, and report set aside, and order of reference vacated; costs to the trustee appellant out of the fund, and to the respondent on his appeal as to the Daily claim, out of the fund.


author: Barnard,. P. J.:

text:
    ELLEN PHELAN, as Administratrix, etc., of GEORGE F. PHELAN, Deceased, Appellant, v. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Respondent.

      Forfeiture of a policy of insurance by the non-payment of the premium — what notice must be given to the policyholder — chap. 821 of 1877.
    Chapter 321 of 1877, after declaring that no life insurance company doing business in this State shall have power to declare forfeited or lapsed any policy thereafter issued or renewed by reason of non-payment of any annual premium or interest, or any portion thereof, except as thereinafter provided, directs that whenever any premium or interest due upon a policy shall remain unpaid when due, a written or printed notice shall be addressed and mailed to the person whose life is assured, stating that unless the said premium or interest then due shall be paid within thirty days after the mailing of such notice, the said policy and all payments thereon will become forfeited and void, “provided, however, that a notice stating when the premium will fall due, and that if not paid, the policy and all payments thereon will become forfeited and void, served in the manner hereinbefore provided, at least thirty, and not more than sixty, days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.”

      Held, that when a notice was given in advance of the time when the premium would become due, the company might, in case the premium were not paid on the day it became due, declare the policy forfeited at once.
    The notice served in this case by the defendant company stated the place and time at which the premium was payable, and the amount thereof, and added: “The conditions of your policy are that payment must be made on or before the day the premium is due, and members neglecting to pay are carrying their own risk. Agents have no right to waive forfeitures.” Under the signature and address were printed the words, “ prompt payment is necessary to keep your policy in force.”

      Held, that the notice was sufficient.
    That, although it did not state in the words of the act that, unless the premium were paid, “ the said policy and all payments thereon will become forfeited and void,” it fairly notified the insured that, unless payment were made on the day, the policy would be forfeited.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint made by the court upon the trial of the action at the ICings County Circuit.

      Paphael J. Moses, Jr., for the appellant.

      William Peet and David Wilcox, for the respondent.
   Barnard,. P. J.:

The proof shows that in March, 1880, the plaintiff’s intestate, George P. Phelan, took out a policy of insurance upon his life in the defendant’s company. The amount was $3,000. The premiums were payable quarterly. The payments of the premiums had not always been made regularly, but it is a condition of the policy that a waiver of a forfeiture shall not be deemed an acquiescence as to the future by the company. Thfere was a payment due 31st December, 1882, which was not paid. By the condition of the policy, this non-payment gave the right to the defendant to treat the policy as null. By chap. 321, Laws of 1877, forfeitures for non-payment are prevented, unless a company gave a notice according to the direction of the act. The case turns upon the section, and it is as follows:

“No life insurance company, doing business in the State of New York shall have power to declare forfeited or lapsed, any policy hereafter issued or renewed, by reason of non-payment of any annual premium or interest, or any portion thereof, except as hereinafter provided. Whenever any premium or' interest due upon any such policy shall remain unpaid when due, a written or printed notice, stating the amount of such premium or interest due on such policy, the place where said premium or interest should be paid, and the person to whom the same is payable, shall be duly addressed and mailed to the person whose life is assured, or the assignee of the policy, if notice of the assignment has been given to the company, at his o.r her last known post-office address, postage paid by the company, or by an agent of such company or persons appointed by it to collect such premium. Such notice shall further state that, unless the said premium or interest then due shall be paid to the company, or to a duly appointed agent or other person authorized to collect such premium within thirty days after the mailing of such notice, the said policy and all payments thereon' will become forfeited and void. In case the payment demanded by such notice shall be made within the thirty days limited therefor, the same shall be taken to be in full compliance with the requirements of the policy, in respect to the payment of said premium or interest, anything therein contained to the contrary notwithstanding; but no such policy shall in any case be forfeited, or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice. Provided, however, that a notice stating when the premium will fall due, and that if not paid the policy and all payments thereon will become forfeited and void, served in the manner hereinbefore provided, at least thirty and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.”

There was served upon the insured by mail, directed to 37 Barclay street, N. Y., a notice, which is as follows:

“ Office of the North-western Mutual Life Insurance Go., ) Milwaukee, Wisconsin, November 1, 1882. )
“ George F. Phelan, 37 Barclay Street.
“The 4 qr. premium of $17.40 on your policy No. 102,320, falls due at the office of the agent of this company in New York City, N. Y., before noon on the 31st day of December, 1882. The conditions of your policy are that payment must be made on or before the day the premium is due, and members neglecting so to pay are carrying their own risk. Agents have no right to waive forfeitures.
“Please present this notice at the time of payment.
“Yours respectfully,
J. W. SKINNER.
Secretary.
“ H. M. Munsell,
Genii Agent Northwestern Mwtraal Life Co.
160 Fulton St. Office Cor. Broadway, N. Y. City.
“ Prompt payment is necessary to keep your policy in force.”

We think the intent of the statute was to prevent forfeiture on the part of an insurance company, unless a notice of non-payment of a premium be given at least thirty.days before such forfeiture; but that a notice in advance of the time when the premium would become due made it possible for the company to declare the policy forfeited by reason of non-payment at the day it became due. In other words, that the prevision, at the end of the section, that the notice in advance of the payment becoming due “ shall have the same effect ” as the notice given subsequent to the default, did not mean to give thirty days additional time after the payment was due. The object of the statute was to give careless persons a notice of the time of payment either in advance, for at least thirty days, or that thirty days should be given them after notice of default.

The notice itself was sufficient. It states the amount of the payment, the number of the policy, when it is due and where it is payable. It did not state, in the words of the act, that upon default of payment “ all payments thereon will become forfeited and void.” It did state that the conditions required a payment at the day, and that upon default members insured are carrying their own risks;” that agents have no right to waive forfeitures,” and that “ prompt payment is necessary to keep your policy in" force.” The notice fairly notified the insured that unless payment was properly made at the day, the policy would be forfeited.

The judgment should, therefore, be affirmed, with costs.

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

Judgment affirmed, with costs.


author:
      Barnard, P. J.:
      Pratt, J.:

text:
    WILLIAM JAGGER, Individually and as Executor, etc., of DAVID JAGGER, Deceased, Appellant, v. JOHN H. BIRD, as Executor, etc., of MARY E. GREEN, Deceased, and Others, Respondents.

      Deposit in a bank by a life tenant, of moneys received under an insurance policy on a mill — when it will be considered, as between two remaindermen in whose names the deposit toas made, as personal property.

    Tlie plaintiff and his sister, the defendant’s testatrix, owned an undivided one-half of a certain mill property, subject to the life estate in such undivided half of their father, who was, in 1879, the time when the mill was destroyed by fire, over eighty years of age. One-half of the amount received under the policy of insurance, which had been issued to the father and one Luce the owners of the mill property, was, with the consent of the father, deposited in a savings bank to the credit of the plaintiff and his sister, subject to draft by both. The mill was not rebuilt.
    In March, 1883, the sister died, having made a will in 1870 by which she left her interest in the mill property to the plaintiff, her brother, and in May, 1884, the father died, making the plaintiff nis executor, and leaving to him all the residue of his estate. Thereafter the plaintiff brought this action, claiming to be entitled to the whole amount of the deposit in the savings bank, as the devisee of his sister, if the fund was to be treated as realty, and as the executor of, and a legatee under, the will of his father, if it were to be treated as personalty. Reid, that the claim was untenable.
    That the fund was to be regarded as personal property which was owned by the brother and sister jointly.
    Appeal .from a judgment in favor of the defendant, John H. Bird, executor, entered upon the decision of the court at Special Term.
    In this action the plaintiff sought to recover the sum of $1,125 on deposit in the Riverhead Savings Bank, and the accumulated interest thereon, and to have it adjudged that, as a matter of equity, he was entitled to the whole of the said deposit and interest, as against both the Riverhead Savings Bank and John H. Bird, the executor of the will of Mary E. Green. The facts, which are undisputed, are as follows: The plaintiff and Mary E. Green were the children of one David Jagger, and from the year 1870 down to the time of her decease, the plaintiff and his sister, the said Mary E. Green, were the owners in fee as tenants in common of an undivided half of a certain mill property, subject to a life interest possessed by their father, David Jagger. The owner in fee of the other undivided half was one A. B. Luce. In the year 1870 Mary E. Green made her will, by which she devised her interest in the mill property to her brother, and appointed the defendant, John H. Bird, her executor. In July, 1878, the mill was insured, and from that time until December, 1879, was kept insured to the amount of $2,500 (that being the full value of the property), in the joint names of the said David Jagger and A. B. Luce, who were engaged in carrying on business at the mill under the name of Jagger & Luce. Id December, 1879, the mill was burned down, and David Jagger, who was at that time eighty-one years old, received from the insurance company a check for $1,125 (A. B. Luce receiving the other half of the insurance money), and immediately indorsed the said check to his son, William Jagger, who with the assent of his father, deposited the check in the Riverhead Savings Bank, to the credit of himself and his sister, and had the account opened in their joint names and “ subject to draft signed by both.” His sister, Mary E. Green, was informed of this, but neither she nor her brother ever made any draft on the deposit, and from that day to this it, and the accumulating interest, has remained there undisturbed. It did not appear who received the deposit-book, or whether any was issued. In March, 1883, Mary E. Green died, leaving her will above referred to, and the defendant, John H. Bird, duly qualified as executor. In May, 1884, David Jagger, the life-tenant, died, and the plaintiff, William Jagger, duly qualified as his executoi’, and now claims the whole of the deposit, including Mary E. Green’s half, on the ground that if it is deemed personalty, he is entitled to it as executor under the will of David Jagger, and as entitled to all the rest, residue and remainder of his estate as his residuary legatee and devisee; and if it is deemed realty, he is entitled to it under the devise of the mill - property in the will of Mary E. Green. The defendant, John H. Bird, claims that the money is personalty, and that as such he is entitled to one-half of it, namely, $685.64, as the executor and residuary legatee (in trust) of all the personal property of Mary E. Green.

      B. K. Payne, for the appellant.

      George F. Oanjield, for the respondent John H. Bird.
   Barnard, P. J.:

At the time of the death of Mary Green there stood on deposit in the Biverhead Savings Bank, to the credit of her brother and herself, the money in question “subject to draft by both.” This deposit was the amount of a fire loss upon a policy of insurance upon an old mill, which was owned by the parties in common with one Luce, who owned an undivided one-half.

The half of Mary Green and her brother was subject to the life estate of their father therein, who was, at the time of the fire, over eighty years of age. The parties did not rebuild or replace the mill, but deposited the money in the savings bank in the manner stated. The deposit was made with the assent of the father. The father died, and the brother of Mary Green, William, is his executor. After the deposit had remained in the bank some four years, Mary Green died, and she is represented by the defendant Bird. By her will she gave her interest in the old mill to her brother. It was within the power of the owners to convert the insurance money into personal property, even if it was real property, after it was received of the insurance company. Presumptively they did this, from the manner of deposit and from the length of time the deposit remained untouched.

This accords with the surrounding circumstances. The mill was old and the life-tenant was very old, and it appears that he consented to look to his children rather than to conduct the mill. The other owner had taken his share of the insurance, and he appears to have not intended to rebuild. The finding of the tidal judge, that the deposit was personal property, is fully sustained by the evidence.

The father, after he gave up the insurance money to his children, had nothing more than an equitable right against his children for the interest on the money received. He had no interest in the deposit in the absence of fraud. As between the children the deposit was one of joint ownership. (Martin v. Funk, 75 N. Y., 142; Willis v. Smith, 91 id., 298.) It was a joint ownership of the deposit as personal property. (Hastings v. West. Fire Ins. Co., 73 N. Y., 141.)

The judgment should be affirmed, with costs.

Pratt, J.:

The deposit of the fund in the savings bank, in the joint names of the plaintiff and Mrs. Green, raises the presumption that it belongs to them in equal shares. We find no evidence to repel this presumption, and believe, with the judge at Special Term, that the owner of the life estate waived his claim in favor of the heirs. Nor do we find any evidence that the heirs regarded the fund in bank as in any way different from other personal property owned by them. No decision quoted goes so far as to hold that a policy of insurance will continue in favor of the heir, unless expressly made for his benefit. And if he could not claim under a policy issued to his ancestor, still less can he, as heir, claim the fund where the ancestor collected the indemnity.

The cause was correctly decided, and judgment must be affirmed, with costs.

Judgment affirmed, with costs.


author: Barnard, P. J.: Pratt, J.:

text:
    HARRIET GIGNOUX and ELIZABETH A. GIGNOUX, Plaintiffs, v. MARY E. STAFFORD, Defendant.

      Sale by assignees in bankruptcy und&r the United States statute chapter 9 of 1841 — pow&r of the court to order a private sale without specifying the tiru,e thereof.

    Section 9 of the bankrupt act of 1841, providing that all sales by assignees “ shall be made at such times and in such manner as shall be ordered and appointed by the court,” was intended to apply to public sales only, and not to a private sale ordered by the court.

      Smith v. Long (12 Abb. N. C., 113) distinguished.
    Submission of a controversy upon an agreed statement of facts. The plaintiffs entered into a written agreement with defendant, April 21, 1886, to sell to defendant certain real estate on the southerly side of St. Mark’s avenue, in Brooklyn. The defendant paid the usual ten per cent, amounting to $180, and sixty dollars auctioneer’s fees, and agreed to pay balance of the purchase-money June 1, 1886, when it was agreed that the plaintiffs should deliver to defendant a deed with the usual full covenants, and free and clear of all incumbrances. June 1, 1886, the deed was duly tendered and the balance of tlie purchase-money demanded, but defendant refused to accept the deed and pay the balance, upon the ground that’ plaintiffs could not convey a good title to said premises as agreed between them, and demanded repayment of the ten per cent and auctioneer’s fees aforesaid, and her expenses in examination of title. The facts upon which defendant bases her objections to the title were as follows: In 1841, James E. Underhill, now deceased, was seized of the premises about which this controversy arises. October 27,1841, a creditor’s bill was filed against Underhill in chancery, a receiver was appointed in the action, and an order was made that Underhill assign all his property to said receiver, and on June 18,1842, Underhill made and delivered an assignment in writing, under seal, to said receiver of his property pursuant to the order of the Court of Chancery. July 7, 1842, said Underhill filed a petition, with schedules as a bankrupt, in the District Court of the United States, asking to be discharged from his debts under the bankrupt act of the United States of 1841. In the schedule annexed to his petition he mentioned the judgment creditors in the aforesaid chancery suit, and states that under the order of the Court of Chancery he had made an assignment of his property to the receiver, and annexed a copy of the said assignment. Down to the time of making and recording the deed of the assignee in bankruptcy, hereafter set forth, the assignment to the receiver does not appear upon record in Kings county, nor do the records of said county down to that time show any conveyances by the receiver of any of Underhill’s estate.
    In the bankruptcy proceedings the bankrupt, Underhill, made, under order of the United States Court, an assignment to William Coventry H. Waddell, general assignee, etc., of all his property, and the general assignee duly reported such assignment August 5,1842. In March, 1858, the following proceedings were had:
    “SOUTHERN DISTRICT OF NEW YORK,
    “In Bankruptcy.
    “In the Matter of Jambs E. Underhill, a Bankrupt.

      11 Decree August 5, 1842.
    “ The official or general assignee, to whom the estate of the said bankrupt was confided by decree aforesaid, respectfully reports that an application has been made to him to procure all the interest ■which the said bankrupt had of, in and to certain streets set forth in a map, entitled ‘Map of lots adjoining Parmentier’s garden, belonging to James E. Underhill and others, situate in the city of Brooklyn, surveyed and laid out by R. Graves, October, 1834, and filed in the office of the register of Kings county, in the State of New York, March 30, 1835, wherever the same may not have been covered by the mortgages which have been foreclosed upon the lots set forth in said map, or where the same may have been fully set forth and covered thereby for a nominal consideration and the costs an’d charges of the assignee thereon, and the assignee aforesaid having carefully examined the subject-matter thereof, now moves the court for an' order as follows, to wit:
    “ Ordered, That the official or general assignee be authorized to sell and dispose of the property herein referred to in manner aforesaid, at private sale, pursuant to the rules of said court.
    “¥M. COVENTRY I-I. WADDELL,
    “ Official or General Assignee.

    “Dated March, 1858.”
    Indorsed : “ Southern district of New York, in bankruptcy. In the Matter of James E. Underhill, a bankrupt. Report of assignee and order of sale. Order, S. R. Betts. Filed March 10, 1858.”
    The said general assignee thereupon conveyed the premises to one Leah Van Winkle, under whom the plaintiffs claim. The defendant claimed that the order directing the sale by the assignee was void because it did not fix the time of sale. .

      William G. De Witt, for the plaintiffs.

      A. W. Gleason, for the defendant.
   Barnard, P. J.:

The case of Smith v. Long (12 Abb. N. C., 113) has no application to the facts of this case. By the bankrupt act of 1841, chapter 9, sales of property under its provisions were to be “ made at such times and in such manner as shall be ordered and appointed by the court in bankruptcy.” The Court of Appeals held, in a case of public sale, that the bankrupt court must fix the time of the sale. The bankrupt court could, however, authorize a private sale, and in respect to the land in question, did authorize the assignee in bankruptcy to sell it at private sale, which, was done. The court, in such a case, was not bound to name a time when the sale should be consummated. The object of the law was to prevent sales without due proof of publicity. This provision would not apply to a private sale when a court, in the exercise of an undoubted power, authorizes a private sale, and fixes the consideration in the order. It would be an entirely useless requirement to fix a day for this private sale so authorized.

. The assignment to the receiver in chancery in some way became inoperative. The creditors who instituted the proceedings were made parties to the proceedings in bankrupcy. The assignment to -the receiver was annexed to the bankruptcy proceedings, and after this the bankruptcy court ordered the sale of the lands conveyed by it. This must have been based either upon the assignment to the receiver being void under the bankrupt act, or by reason of the creditors preferring a distribution under that act. In either event the creditors were bound by the sale ordered by the United States District Court.

The title is not a doubtful one, but is good, and the defendant should take the same under her agreement.

Pratt, J.:

This is a submission of controversy, and the only question seriously raised is whether a sale by a general assignee in bankruptcy under an order that does not fix the time when such sale shall take place is valid.

Section 9 of the act provided that all sales by assignees “ shall be made at such times and in such manner as shall be ordered and appointed by the court.” The order under which the sale took place was as follows: Ordered that the official assignee be authorized to sell and dispose of the property herein referred to, etc., at private sale, pursuant to the rules of said court.” It is conceded the court had power under other provisions to order a private sale.

It will be at once seen that if the act in question is to be construed so that the court must appoint a time when the property should be sold at private sale, the power to sell at private sale is nugatory. No court could appoint a time when property should be sold at jsrivate sale, and hence such a construction cannot be entertained. The whole law upon this subject must be read and all its parts construed in connection with each other. The section simply means that when a time is appointed it must be sold, but the court can direct the manner, and if it directs a manner in which it is impossible to appoint the time, the sale is not void. The specific words of the statute can be given their full force and meaning by applying them to sales ordered to be made at auction, and the time fixed for such sale to take place. The case of Smith v. Long (12 Abb. N. C., 113) is invoked as authority against this sale. That case has no application, as the sale was a public one, and the time could have been appointed.

The interpretation I have put upon this statute follows the general practice in the United States courts for a long series of years, and if it is not the proper one, then a large number of land titles will be thrown into inextricable confusion and doubt. It cannot be that the State courts, at this late day, will so interpret a statute as to run counter to the established practice in the United States courts, and throw doubt over the title of an immense amount of property that is held by virtue of such sales, especially when full effect can be given to the words of the stature, by holding that the appointed does not refer to an order providing for a private sale. The doctrine of the case of Smith v. Long does not cover this case, and it is not likely to be extended, in view of the consequences it would entail. We think the sale here by the assignee was valid, and carried the title.

A point is made that the title here is in a receiver in chancery, but it does not appear that any such conveyance was ever recorded, and it appears that the plaintiff is a bona fide purchaser, and has been in exclusive possession for twenty years. We have no hesitation in holding that the title is good, and that defendant must take it.

Judgment for affirmance.

Judgment for the plaintiff on submitted case.


text:
    JOHN ANDERSON, as Surviving Executor, etc., of ISAAC De MOTT, Deceased, Plaintiff, v. ROBERT A. DAVISON, Defendant.

      Will — when legacies are charged upon real estate.

    The plaintiff’s testator, after giving to his wife the use of two rooms of his dwelling-house and also the use of $10,000, to be paid to her annually during her natural life in lieu of her dower, and to each of four grandchildren the sum of $4,000, to be paid to each on arriving at the age of twenty-one years, gave and bequeathed “ all the rest, residue and remainder of my (his) real and personal estate, goods and chattels of what kind and nature soever,” to his only son, Charles. He appointed Charles and two other persons executors, and empowered them to sell all his real estate. The personal estate was never sufficient to satisfy the said gifts and bequests, and some of it was lost by the residuary legatee, Charles White, while acting as executor.

      Held, that the legacies were charged upon the real estate, and that the sole surviv ing executor had power to sell the real estate to provide a fund from which to pay them.
    Submission of a controversy upon an agreed statement of facts.
    The question submitted was whether or not the plaintiff, as the survivor and only acting executor of the last will and testament of Isaac De Mott, deceased, had the power to sell the real estate of one De Mott, and convey a good title thereto.
    On the 16th day of January, 1877, Isaac De Mott died, leaving a last will' and testament, which contained, among others, the following provisions:

      “First. I give and bequeath to my wife, Jane De Mott, the use of the choice of two rooms of my dwelling-house, and also the use of $10,000, to be paid to her annually by my executors herein named during her natural life, to be accepted and received by her in lieu of dower.
    “ Secondly. I give and devise to my grandchildren, Laura De Mott and Theodore De Mott and Julius De Mott and Lydia De Mott and "Walter De Mott, the sum of $4,000, to be paid to each of them as soon after my decease as they arrive at twenty-one years of age.
    “ Third. And I hereby give and bequeath to my only son, Charles S. De Mott, and lastly, as to all the rest, residue and remainder of my real and personal estate, goods and chattels of what kind ana nature soever.

      “ Fourth. I do hereby nominate and appoint my son, Charles S, De Mott, and my brother, Daniel De Mott, and John Anderson, to be the executors of my last will and testament, hereby revoking all former wills by me made.

      “ Fifth. I hereby empower my said executors to sell all my real estate, private or public sale, as to the best advantage.”
    Jane De Mott, the widow of said Isaac De Mott, died at Hemp-stead, aforesaid, on the 15th day of April, 1882; Charles S. De Mott, the acting executor of said will of Isaac De Mott, and the residuary legatee therein named, died at Hempstead, aforesaid, on the 6th day of September, 1885, and since his death John Anderson, the surviving executor named in the will of Isaac De Mott, has taken charge of the papers of his estate and assumed control thereof. All the personal estate, with the exception of a few hundred dollars which belonged to the estate of Isaac De Mott, had been expended or lost by the said Charles S. De Mott, acting executor, in his lifetime; and there is no personal estate of the said Isaac De Mott, deceased, nor of the said Charles S. De Mott, deceased, with which the said legacies can be paid, and the same cannot be paid or reserved, excepting out of the real estate of the said Isaac De Mott, deceased; there still remains certain real estate of the said Isaac DeMott, in and about the town of Hempstead, Queens county, amounting in the aggregate to the value of about $15,000.

      A. W. Weller, for the plaintiff.

      Robert A. Damson, for the defendant in person.
   Barnard, P. J.:

The intent of the will seems to be plain, that his entire estate, real and personal, is charged with the payment of debts and the legacies named in the will. It is only the “rest, residue of my real and personal estate’” which is given to the son Charles. If this be the true construction of the will, the sale is imperatively ordered. A power to sell, although described in words merely empowering the executor to do so, is imperative when the purposes of a will require a sale. (Mott v. Ackerman, 92 N. Y., 539.) If the power of sale was imperative, a sale could be made even by an administrator with the will annexed. (Cooke v. Platt, 98 N. Y., 35.) A power of sale given by will can be executed when the fee is devised to residuary legatees. The power is not inconsistent with the devise. (Crittenden v. Fairchild, 41 N. Y., 289.) The facts in this case show a necessity of the sale for the purposes of the execution of the provisions of the will. By its terms $10,000 was to be invested to produce an annual income to the widow for life, and $20,000 was given absolutely to the grandchildren. There was never enough of the personal estate to raise these sums after the debts were paid, and the residuary legatee who was then acting executor has in some way lost it. The infant grandchildren should not be held responsible for the mismanagement of the executor. The title is therefore good and the defendant should take the same.

Pratt, J.:

The question in this case is whether plaintiff, as executor, has the power to sell lands of his testator. The will of plaintiff’s testator contains a power of sale, coupled with no trust. Before the creation of the power the testator had devised to his son all of his real estate. There is no discretion in the will as to what disposition shall be made of the proceeds of sale. But there are a number of specific legacies amounting in the aggregate to $30,000. The personal property left by testator amounted to $20,000, and there were debts to the amount of about $3,000.

The residuary clause to the will seems to blend the real and personal property in one fund. There is no specific devise of real estate, but the legacies are made payable out of the whole estate without distinction so far as any language in the will is concerned. It is plain from reading the whole will that the testator intended the' legacies to be charged upon the realty. (Hoyt v. Hoyt, 85 N. Y., 142; Scott v. Stebbins, 91 N. Y., 605.) The clause conferring the power is as follows: First. I hereby empower my executors to sell all my real estate, private or public sale, as to the best advantage.

It will be observed that the language is clear and emphatic, and leaves no room for conjecture. Nothing can be more manifest than the fact that the testator intended to authorize the executors to sell his real estate. The surrounding circumstances all show such an intention. The giving of legacies far beyond the amount of his personal property, and the direction to set apart ten thousand dollars and invest it for the use of his widow, make the will inconsistent with any other theory. Such a power can be upheld by authority. (Crittenden v. Fairchild, 41 N. Y., 289; Scott v. Stebbins, supra; Kinnier v. Rogers, 42 N. Y., 537.)

A judgment should be entered for the plaintiff upon the case submitted, requiring the defendant to accept the plaintiff’s deed, and to pay the consideration, without costs.

Judgment for plaintiff upon submitted ease.


text:
    In the Matter of Proving the Last Will and Testament of EDWIN B. HUNT, Deceased.

      1fill — what proof as to its execution by the testator will justify its admission to probate.

    The deceased, a clerk in the employment of Sleight & Petty, drew his own will and had it signed by his employers as witnesses. It contained the following attestation clause: “We, the undersigned witnesses, have signed the within in the presence of each other and of the testator, who acknowledged it to be his last will and testament.” The memory of the witnesses as to the particulars of the transaction was very imperfect, but both united in declaring that the facts stated in the attestation clause were true, or that they would not have signed it. Held, that the will should be admitted to probate.
    That it seemed very certain that the signature of the testator was in full view of the witnesses, and that the fair inference was that he signed it in the presence of the witnesses.

      Lewis v. Lewis (11 N. Y., 220) distinguished.
    That if the will was signed before its attestation by the witnesses, the exhibition of the will, and of the testator’s signature attached thereto, and his declaration to the witnesses that it was his last will and testament, and his request to the witnesses to attest the same, were a sufficient acknowledgment of the signature and publication of the will.

      Matter of Phillips (98 N. Y., 267) followed.
    Appeal from a decree of the surrogate of Rockland county, refusing to admit to probate a paper purporting to be the last will and testament of Edwin B. Hunt, deceased.

      Daniel W. Guernsey and W. Farrington, for tne proponents, appellants.

      James Armstrong, for Mary S. Baker, contestant, respondent.
   Barnard, P. J.:

Everything surrounding the execution of the will proposed for probate shows good faith and freedom from any evil influence whatever. The deceased was a clerk in Brooklyn, in the employment of Sleight & Petty. The will was drawn by the testator himself, and was witnessed by his employers. The attestation clause is not full, but is as follows: “We, the undersigned, witnesses, have signed the within, in the presence of each other and of the testator, who acknowledged it to be his last will and testament.”

The memory of the witnesses is very imperfect of the particulars of the transaction, but both unite in the declaration that the facts stated in the attestation clause were true, or that they would not have signed it. The will was then produced before the witnesses, either signed or unsigned, and attested by the witnesses. If it was signed in the presence of the witnesses the attestation clause is sufficient.

The learned surrogate puts his decision upon the fact that it was signed before the witnesses were asked to attest it, and then rejects the will on the authority of Lewis v. Lewis (11 N. Y., 220). It is true that the statute either requires that the signature be made in the presence of the witnesses, or that it be acknowledged. The acts are separate and distinct, and a failure in either will call for' a rejection of the will. In the case of Lewis v. Lewis the paper was so folded as that the witnesses could not see the signature, and .the publication was “ I declare the within to be my will and deed.”

It seems very certain in this case that the signature of the testator was in full view of the witnesses, and the fair inference is that he signed it in the presence of the witnesses. The attestation clause is entirely consistent with its execution in the presence of the witnesses. If the will was signed before its attestation by the witnesses the will should be admitted to probate. “ The exhibition of the will and of the testator’s signature attached thereto, and his declaration to the witnesses that it was his last will and testament, and his request to the witnesses to attest the same, were, we think, a sufficient acknowledgment of the signature and publication of the will.” (Matter of Phillips, 98 N. Y., 267.) The same court, in Matter of Higgins (94 N. Y., 554), express the same opinion in respect to the testimony of one of tlie subscribing witnesses to the will.

The decree rejecting the will should be reversed and the record remitted to the Surrogate’s Court, with direction to admit the will to probate. Costs to appellants out of the estate.

Pratt, J"., concurred.

Decree of surrogate reversed and proceedings remitted to surrogate to admit will to probate, with costs to the appellants out of the estate.


author: BaeNAed, P. J.: Peatt, J.:

text:
    MARY E. ROGERS and Others, Respondents, v. GEORGE ANSON, Appellant.

      Damages — examination of witnesses as to the mnount thereof — what questions are allowable.

    Upon the trial of this action, brought to recover damages done by cattle trespassing upon the plaintiffs’ premises and injuring the vines, currant bushes and fruit trees upon them, one of the plaintiffs, after testifying to the breaking of the limbs of the trees and the destruction of the vines and shrubs, was permitted, against the defendant’s objection and exception, to answer the questions, “What was the value of the trees? what was the amount of dam- • age you saw done them,” by saying, “ Well, $300.”

      Held, that no error was committed in allowing the question tó be put and answered.
    Another witness,who had given with great minuteness the items of injury and stated that he knew the value of the lands, was asked and allowed to answer what the amount of damage was.

      Held, no error.
    Another witness, who had stated the injury, on being asked as to its extent, replied: “ If it was on my own land, I would hate to have it done for a counle of hundred of dollars. ”

      Held, that the court did not err in refusing to strike out .the answer.
    Appeal from a judgment of the County Court of Dutchess county, entered upon the verdict of a jury in favor of the plaintiffs.

      A. M. & O. Card, for the appellant.
    TP". O. Haight, for the respondents.
   BaeNAed, P. J.:

This was an action of trespass upon lands. The parties are adjoin* mg owners, and the damage alleged to have been done was done by cattle. The plaintiffs’ premises had vines, currant bushes and fruit trees on it. The principal question presented was as to the proof of damage. One of the plaintiffs, Hannah Northrop, testified as follows : “ The limbs were broken down, some of the trees were broken down to the roots, the quince bushes were entirely broken off, and my cranberries (they were of large kind) they were destroyed, and the bigger trees — the limbs were broken off pear trees, apple trees, cherrry trees and all; I had then about 100 apple trees, eight cherry trees, six pear, and great limbs were broken off them; I had an ornamental tree that was also torn to pieces, torn from the ground; that was worth $500; grape arbor was also destroyed; I had terraces along them, they were also destroyed so it had to be rebuilt.” The plaintiff was then permitted to put this question : What was the value of the trees •— what was the amount of damage which yon saw done them ? A. Well, $200, This question did not call for an opinion merely. The value of property is a fact and not an opinion, and the double question merely called for the value of the things specifically mentioned by the witness as in a greater or less degree injured. (McCollum v. Seward, 62 N. Y., 316; Seymour v. Fellows, 77 N. Y., 178.)

The other instances where exception was taken to the question of damages were not erroneous. The witness, J. H. Northrop, after giving with great minuteness, the items of injury, and after stating that he knew the value of the lands, was asked what was the amount of damage done. Under the case of Argotsinger v. Vines (82 N. Y. 308) the damage was the difference between the land before the injury and the land after it, and the question called for that only. The question put to the witness Rogers is sustainable for the same reason. The witness Cary gave particularly the injury he had seen, and that he made up his damages from that only. No error was committed in refusing to strike out the answer given by the witness Cable. He had stated the injury, he said, and when asked as to its extent, replied as follows: “ If it was on my own (land) I should hate to have it done for a couple of hundred dollars.” This was resnonsive to the question. The only objection to it is the insertion of that part of the answer which refers to his own land. It does not appear that the witness intended to make a different estimate by reason of that answer. It was a mannerism of the witness to convey the idea that the damage done was $200. The damages are not excessive. The injury was considerable. There is some evidence that it amounted to $200. When a lesser sum is given by a witness ■it appears that he did not include all, but only such .portions as he had brought to his notice. The question is one peculiarly for a jury, and the verdict thereon should stand.

Judgment affirmed, with costs.

Peatt, J.:

There are no errors of law shown by the record, and we do not think the verdict can be called excessive. The jury, upon the first trial, rendered a verdict for $200, which should be allowed some weight upon the question of excessive damages. The trespass was deliberate and continued, and the evidence required substantial damages. The charge of the court was as favorable as defendant had any right to expect.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES J. HAYES v. THOMAS CARROLL, as the Commissioner of Police and Excise of the City of Brooklyn.

      Dismissal of members of the police force of Brooklyn —1873, chapter 863, section 14, title 11, as amended by chapter 457 of 1881.

      'Certiorari to review the action of the respondent, the Police Commissioner of the City of Brooklyn, in dismissing the relator, a member of the police department of that city, upon a charge of an unprovoked assault upon a citizen while the relator was off duty.

      Held, that the relator was properly dismissed for a violation of rules of the department, which provided that the policemen should he at all times subject to its rules, and prohibited any policeman from willfully abusing or ill-treating a citizen.

      CeRtioeaRI to review tbe action of the respondent in removing the relator from the position of patrolman in the police department of the city of Brooklyn.
    The charge was misconduct. The specification of the charge alleged that on the 29th day of January, 1886, the relator assaulted one Robert Cullen. The evidence on the trial was conflicting, Cullen claiming that the assault was unjustifiable and the relator alleging that he struck Cullen in self-defense. It is conceded that the alleged assault was committed on the relator’s day off; that he was not in uniform. It is claimed on the relator’s behalf that he was not amenable to the respondent for his conduct when off duty.

      Edward F. O'Dwyer, for the relator.

      F. A. MoGloshey, for the respondent.
   Barnard, P. J.:

The relator was a member of the police department of the city of Brooklyn. The respondent is the police commissioner and, by chapter 863, Laws of 1873, title 11, section 14, as amended by chapter 457, Laws of 1881, has power to dismiss from the force a policeman who violates the rules of the department. He has also power to dismiss for conduct unbecoming an officer. The relator was charged with an unprovoked assault upon a citizen while he, the policeman, was off duty. He was tried for this offense and dismissed.

It is one of the rules that no policeman shall willfully abuse or ill-treat a citizen. (Rule 136.) The policeman is at all times subject to the rules. (Rule 145.) Both rules are necessary and proper. The policeman is to protect the public. He must not be a brawler and fighter either when on or off duty, for his efficiency depends upon a public respect for his office and a confidence in the acts and deportment of the officer. The commissioner thus had jurisdiction over the charge, and he obtained jurisdiction over the officer by his appearance, without objection, to answer the written charge. (McCormick v. Penn. Cent. R. R. Co., 49 N.Y., 303.) The charge is sufficiently explicit. Even at common law the very words of the statute or rule need not be used. If the substance of the charge be expressed it is good pleading. These proceedings are not such as call for tbe strict common-law rules either of pleading, or trial. (People ex rel. McCarthy v. Police Comrs. of N. Y., 98 N. Y., 332; People ex rel. Flanagan v. Police Comrs. of N. Y., 93 id., 97.) The issue of fact, if the evidence be merely conflicting, does not call for a reversal for that reason. (People ex rel. Hart v. Fire Comrs., 82 N. Y., 358.) The evidence in this case supports the conclusion of the commissioner.

Judgment affirmed, with costs.

DyxmaN, J., concurred.

Commissioner’s order affirmed, with costs.