text:
    Edward Laufer, Resp’t, v. Boynton Furnace Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Evidence—Wabbanty.
    In an action to recover damages for breach of warranty of an apparatus for heating a greenhouse, plaintiff may testify as to the average number of flowers cut from the plants the previous year, in order to show the injury to the plants and loss of sales of cut flowers the plants would have produced, if a proper temperature had been maintained m the greenhouse.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      M. H. Cardozo, for app’lt; Edward L. Frost, for resp’t.
   Brown, P. J.

The plaintiff was a florist, and in .January, 1892, entered into a contract with the defendant, whereby it agreed to furnish to him, and set up in Ms greenhouses, a hot-water heater, with pipes, according to certain specifications, and .gave to him a written guaranty that the boiler and radiators mentioned in the specifications “would heat the greenhouses to the desired temperature for the term of fifteen years,” provided they were kept in good workable condition. This action was brought to recover damages arising from a breach of the guaranty. Two causes of action were alleged in the complaint. In the first, a recovery was sought for damages to plants and loss of sales of cut flowers which the plants would have produced if a proper temperature had been maintained in the greenhouses ; and in the second, for the difference between the valué of the heater as it was and as it would have been had the guaranty been fulfilled. There was a conflict of testimony as to what.the guaranty was in reference to temperaturc. The plaintiff claimed that it was to be as high as seventy-five to eighty-five degrees in one of the houses, so as to permit the growth of delicate varieties of flowers; while defendant claimed that the desired temperature agreed upon was to be sufficient only for growing carnations and chrysanthemums, and that fifty degrees was sufficient for such purpose. There was no exception taken to the charge of the court, and there was no motion made to dismiss the complaint.

The only motion made was to dismiss the first cause of action, upon the ground that there was not sufficient evidence to go the jury as to what the plaintiff’s actual damages were. We are of the opinion that this motion was properly denied, and we find no reason for disturbing the verdict of the jury upon the facts. The court charged the jury, that, if the plaintiff was entitled to succeed, he had a right to recover—First, the difference in value between the heating apparatus he was entitled to receive under his contract and the heating apparatus he actually did receive; and, second, the difference between the value of the stock in his place which was injured or destroyed by reason of any defect in that apparatus before it was injured and the value of that stock after it had received such injury. For the purpose of showing the value of the plants, the plaintiff and his wife were permitted to testify, against the defendant’s objection and exception, to the average number of Sowers cut from the plants the year previous. We are of the opinion that this evidence was competent. z -

In the case of Swain v. Schieffelin, 134 N. Y. 471; 47 St. Rep. 910, the plaintiff was permitted to recover for the loss of customers and sales and profits thereon, and proof of sales in a corresponding period of a prior year was permitted.

In White v. Miller, 71 N. Y. 118, the court says:

“The character of the season, * * * the manner in which the plants set were cultivated, the condition of the ground, the results observed in the same vicinity, * " * * and other circumstances, may be shown to aid the jury, and from which they can ascertain approximately the extent of the damage resulting from the loss of a crop of a particular kind.”

In Wakeman v. Wheeler & Wilson Manufacturing, Co., 101 N. Y. 200; it was said:

“If there is no more certain method of arriving at the amount, the injured party is entitled to submit to the jury the particular facts which have transpired, and to show the whole situation which is the foundation of the claim and expectation of profit, so far as any detail offered has a legal tendency to support such claim.”

The plaintiff testified that he had thirteen years’ experience in growing flowers by artificial heat in the winter months, and that he knew how many flowers he could grow from a plant. It was entirely permissible for him to state his experience and the average number of flowers that he had cut from the various plants in the prior year. While the result based upon such evidence is somewhat speculative, it is no more so in reference to flowers than the prospective result from seeds and other crops, and is a most material fact to be considered in determining the value of the plants. It was a fact proper in this case for the jury to be informed of, and to consider in determining the amount of the loss that plaintiff had sustained.

The amendment allowed to be made to the complaint to conform that pleading to the proof was one clearly within the power of the court. It did not change the cause of action, or demand from the defendant any other defense than it had pleaded and given proof to sustain. Its sole result was to permit the plaintiff to recover such a verdict as the evidence had established. It was a matter that rested in the sound discretion of the trial court, and we find no reason to disagree with its judgment.

We have examined the other exceptions, and find none that require notice. The judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    John Schlachter, Resp’t, v. Robert E. Hopkins, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Contbact—Building—Delay.
    The rental value for the period of delay in completing a house, if caused by the neglect of the contractor, may be deducted from the contract price.
    Appeal from a judgment in favor of plaintiff.

      E. T. Lovatt, for app’lt; James M. Hunt, for resp’t.
   Pratt, J.

This is an action instituted to foreclose a merchant’s lien alleged to have been created by performance of a contract entered into by the plaintiff with defendant Hopkins. The contract was executed on September 12, 1891, and the work called for by its terms was to be completed on April 1, 1892, and it is admitted that it was not finished until July 10, 1892. That the plaintiff delayed in commencing work under the contract is undisputed. The defendant Hopkins, as late as November 6, 1891, complained to the plaintiff and architect of the delay in its prosecution. At that date they were only laying the foundation. That the architect appreciated the justice of such complaint is manifest,from the fact that he testifies that he repeatedly urged plaintiff to hurry the work. Hopkins continued to complain of the tardiness in the prosecution of the work, and frequently urged the plaintiff to be more expeditious with the work. About January 11,1892, Hopkins insisted that the chimney, arches, and fireplaces were illy and unskillfully constructed, and, at his request, the matter was referred to another who, after a delay of two weeks, decided that, after some slight alterations, the work on chimneys, etc., would do. Such alterations were made during such two weeks. For some reason, not apparent from the testimony, all other'work on the premises was stopped. Would it not have been fairer and more reasonable to have continued during such delay on other portions of the building which required it? Hopkins directed.that some stairs other than those provided by the contract should be placed in the building, and agreed to pay the costs of constructing the same in addition to the sum to be paid under the contract; and the amount, $215, charged for same, was allowed by him. The testimony does not disclose when the work on said stairs was commenced,- or how long a time it consumed to supply them, and perform the extra labor caused by their construction and erection. Upon this point it is somewhat conflicting. From a careful perusal of the evidence, my best judgment is that an allowance of three weeks for such delay would be equitable. The referee did not err in allowing the defendant Hopkins the sum of $495.65, for moneys paid by him for painting required by the contract, and such sum should be deducted from the contract price.

The testimony throughout shows to my mind that the plaintiff did not prosecute the work called for by the contract with diligence and dispatch; that whatever delays might inferentially be charged to Hopkins were more than counterbalanced by the apparent delays and lack of energy and attention of the plaintiff in performing such contract. It is clearly shown that Hopkins, with the exception of the delays hereinbefore noted, did everything in his power to facilitate and hasten the work. The promptness with which he paid the sums alleged to be due under the contract, and the fact of his pecuniary advances to plaintiff to relieve him financially, and to provide him with funds to prosecute the work, his waiver of the performance of several items required by their agreement, as also his celerity in paying the charges for extra plumbing and mason work, all abundantly prove this. On the other hand, the testimony clearly shows the plaintiff’s lack of interest in the work; that he farmed out every part of the general construction to various subcontractors, over whom Hopkins had no authority, and with whom he could not advise; that, upon the occasion of such complaint to the plaintiff, he threw the blame or cause of the same upon one of these subcontractors; that said contract was so sublet without'the written consent of Hopkins, as the contract obligated him to do; his almost entire failure to give the work his personal supervision, as evidenced by his rare and infrequent visits to the premises during- the progress of the work ; that, although behind time on this contract, he transferred mechanics from the Hopkins- building to the Eamsay house, for whose construction he also had an agreement. I am of the opinion that, if the plaintiff had used reasonable diligence and dispatch, the building would have been ready for occupancy, notwithstanding the delays attributed to defendant Hopkins, on May 1, 1892. IE it had been completed at that date, the uncontradicted testimony shows that the premises could have been leased to a responsible tenant for $1,100 per year. I am of the opinion that the defendant Hopkins is entitled to be paid by the plaintiff the pro rata portion of said $1,100, from May 1, 1892, to July 16, 1892. 'That plaintiff should be allowed the sum of $1,500, being amount of last payment under the contract; the further sum of $215, the cost of erecting the additional stairs, etc.—making together the sum of $1,715. From such amount should be deducted the sum of $495.65, paid by defendant Hopkins for painting, etc.; the further sum of $840, as liquidated damages, under section 12 of contract ; $10 per day from April 22, 1892, to July 4, 1892. That plaintiff is entitled to recover upon the evidence from the defendant Hopkins the sum of $379.-35, with interest thereon from July 16, 1892, and that the judgment entered herein on May 26, 1894, be modified to conform there with,-and that in other respects said judgment stand, without costs.

Judgment reversed and new trial granted, costs to abide event, unless plaintiff stipulates to reduce the judgment to $379.35, with interest from July 16, 1892. If such stipulation is filed in twenty days, judgment so modified is affirmed, without costs.

All concur.


author: Peckham, J.

text:
    United States Trust Company of New York, as Trustee, etc., Resp’t, v. James Drake Black, et al., Resp’ts, et al., App’lts.

      (Court of Appeals,

      Filed April 23, 1895.)

    1. Will—Construction.
    Where a testator uses the same expression in different «parts of his will, it is a question of intention whether he means precisley and definitely the same thing thereby ; the context or the facts surrounding the subject may • show such intention to be different in the different places in the will where the same expression is used.
    2. Same.
    Construction of the words “residuary estate” in the will sought to be construed in this action.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    This action was brought by the plaintiff, as trustee, under the third clause of the will of Mary Hopeton Drake, deceased, for the purpose of settling its accounts. In order to settle them, a construction of the will of the testatrix above named becomes necessary. The testatrix died in June,-1884, and her will and codicil were duly admitted to pr.obate by the surrogate of New York county and letters testamentary issued to one Benjamin 0. Wet-more, the executor named in these instruments. By the second clause of her will, the testatrix proceeds to execute a power of appointment in the disposition of certain real estate which had been devised to her for life by her father and which consisted of eleven houses and lots in the city of New York. Two of these lots she devised to a grandson of the sister of her late father, and she accompanied the devise with this language: “But if he shall have died before me and none of his lawful issue shall survive me, .then I direct that the said property shall form part of' my residuary estate, and be disposed of as hereinafter directed in relation to that estate.” In the same way the testatrix disposed of various houses and lots to various devisees, ending each devise in the same general form, that in case the devisee should die before the testatrix and leave no lawful issue surviving, then the property thus devised should form “ part of my residuary estate and be disposed of as hereinafter directed in relation to that estate.” In one instance contained in the last subdivision of clause second, probably through inadvertence, this direction is omitted. By the third clause of the will, the testatrix directed the sale of two of her houses in the city of New York, and out of the proceeds the executors were directed to pay to James F. Evans a certain sum in full payment of a bond held by him, and the balance remaining of the proceeds of the sale of these houses was to be deposited with the United States Trust Company in the city of New York, which was directed to hold the same in trust and invest it and keep it invested upon such securities as the trust company might deem safe, and pay the interest and income to the said Evans during his natural life, and upon his death leaving lawful issue him surviving, the principal sum was given to his then living lawful issue; and in case Evans refused to accept payment of the bond held by him, then the whole sum realized from the sale of the real estate was to be deposited with the trust company, and the interest of the whole of it paid to Evans during his life, and after his death the remainder to his issue, as above stated. The clause then continued: “And in case said James F. Evans shall die leaving no lawful issue him surviving, then I order and direct that the principal of said trust fund shall form part of my residuary estate, and the same be disposed of as the same is hereinafter disposed of.”
    By the fourth clause the testatrix devised another house and lot to another devisee, and that is another instance in which she failed to provide for the death of the devisee and the failure of = issue before her own death. The fifth and sixth clauses contain matter of no importance here. The language of the seventh clause is as follows: “ Seventh. ° All the rest, residue and remainder of my estate, both real and personal, I order and direct my executor hereinafter named, or whoever shall undertake the execution of my will, to sell at public or private sale or sales, and at such time or times as they may think for the best interest of my estate, and to convert the same into cash. * * * Out of the proceeds of such sale or sales I order and direct my said executor to pay over the following amounts to the,,following persons and parties respectively ; and I do hereby give and bequeath the same as follows : ” Here follow some twenty different bequests to legatees, in varying sums of ten thousand, five thousand and one thousand dollars, and amounting to more than one hundred thousand dol- ' lors. Among the provisions in the seventh clause, the testatrix provides for the payment of a sum to the plaintiff as trustee for Esther M. Behin during her life, and she then continues: “ Upon her death I direct that the said trust fund shall fall into and be disposed of as part of my residuary estate.” Another sum was provided upon similar trusts for Emily Hancock in this same seventh clause. The last provision of the seventh clause is as follows : “ And 1 give to each of the grandchildren of Sarah A. Lawrence and Susan A. Drake one thousand dollars, if living at my death.”
    The eighth clause of the will reads as follows: “ After the payinent of the above-mentioned legacies and the provisions made as above directed for the annuities, I order and direct my said executor to pay over out of the residue of the proceeds of sale of my residuary estate the following legacies, which I give to the following persons and incorporations, viz.: ” Then follows a list of some fifteen different charitable institutions to which are given legacies of $5,000 each; the clause then continues as follows:' “ All the rest and residue of my said residuary estate not herein otherwise disposed of I order and direct my said executor to pay over, and I give and bequeath the same to the above-mentioned James Drake Black, Mary Hopeton Drake and Mary Hopeton Smith absolutely, share and share alike.” These three residuary legatees had already been named in the will as devisees of some portion of the estate of the testatrix.
    By the fourth clause of the codicil of the testratrix the name of Hopeton Drake Atterbury was added to the three names above-mentioned as residuary legatees, so that they consisted of four instead of three, as provided for in the will. The testatrix by the next clause of her will appointed an éxecutor and revoked all other wills.
    The property directed to be sold under the provisions of the third clause in the will of the testatrix was sold by the executor, and out of the proceeds of sale Mr. Evans accepted the amount of $37,000 directed.to be paid to him as full payment of the bond of the testatrix held by him, and a balance of a little over $54,000 was realized and was paid by the executor to the plaintiff as trustee under the provisions of this third clause of the will. The trustee paid the interest arising from this sum to Mr. Evans up to the time of his death, which occurred a short time before the commencement of this action, and he left no issue surviving him, so that the provision in the third clause of her will by which, in that event, the testatrix ordered and directed that the principal of said trust fund shall “form part of my residuary estate, and the same to be disposed of as the same is hereinafter disposed of,” comes into effect.
    Proceeding to carry out the provisions of the will the executor sold the property of the testatrix other than that provided for in the clauses preceding the seventh clause of the will and there has been realized from the sale enough to pay all the legatees named in the seventh clause with' the exception of five of those who are named in the last portion of said seventh clause as the grandchildren of Sarah Lawrence and Susan A. Drake. Five of those grandchildren have not been paid their legacies. As to most of the legacies named in the eighth clause nothing has been paid upon them and in the case of a few of those legatees a small portion only of the legacies given to them has been paid. The executor' has become a defaulter and has absconded with nearly forty thousand dollars of the estate, and there is nothing now left with which to pay the specific legacies bequeathed to those various societies named in the eighth clause of the will unless this sum of $54,000 now on deposit with the plaintiff trust company is applicable to their payment pro rata under the terms of the will in question. The plaintiff asked the directions of the court as to the proper disposition of this fund.
    The special term gave judgment directing the plaintiff after retaining proper compensation.as trustee, etc., to pay this amount to the four last-named individuals in the eighth clause, who are determined to be the residuary legatees referred to in the third clause of the will and as such entitled to this money. The corporations named in the eighth clause appealed from that decree to the general term of the supreme court, where the same was affirmed, and they have now appealed to this court.

      E. N. Taft for American Seamen’s Friend Society, app’lt; Mornay Williams for Baptist Home Society, app’lt; Robert S. Minturn for New York Female Auxiliary Bible Society et al., app’lts ; A. R. Dyett for Presbyterian Home for Aged Women, app’lt; Julien T. Davies and Herbert Barry for Domestic and Foreign Missionary Society, app’lt; Cephas Brainerd, Jr., for Young Men’s Christian Association, app’lt; William H. Harris and E. L. Fancher for New York Institution for Deaf and Blind, app’lt; Alexander B. Crane for Atterbury et al., app’lts; James C. Carter and George H. Balkam for resp’ts.
   Peckham, J.

I think this judgment should be affirmed. The case seems to me a reasonably clear one. The whole estate of the testatrix was quite large and she made distinct and specific devises of certain and separate portions of her real estate to different members of her late father’s family, making provision at the same time in regard to each of them (with one or two probably inadvertent exceptions), for possible lapse or failure to take, so that in such case the devise should fall into and be disposed of as part of her residuary estate. Having made the provisions which are set forth in the will, up to the seventh clause, she then treated of the whole balance of her estate and provided for its substantially immediate sale. In describing that portion of her estate which remained after the disposition which she had made of her property in the preceding clauses of her will, she speaks of it in the seventh clause as “all the rest, residue and remainder” of her estate, both real and personal. By the use of such language it seems to us she did not mean that this portion of her property which she was providing should be sold and converted into cash, was to be regarded as her “residuary estate,” within the meaning of that term as used by her in the third and other clauses of her will preceding the seventh. On the contrary, it was language which she was using for the purpose of creating a fund out of which was to come the payment of specific legacies to various persons and institutions. It is true she provided that the residue of her property should be sold, but it was only to create this fund. In the seventh clause the testatrix named certain persons and' institutions who (out of these proceeds of sale) should be paid the sum sped tied, and she then provided in the eighth clause for the payment of the specific legacies therein named out of the balance of the proceeds of the sale ordered by her. All these specific legacies named in the seventh and eighth clauses of the will might be paid out of this fund and a balance still remain. Unless some disposition were made of a possible residuum, the will did not provide for a complete disposition of her property. What she called her “residuary estate” in one part of the seventh clause might, therefore, in that event, be to some extent undisposed of and there might be danger of the testatrix, as to such residue, dying intestate. The language now alluded to and contained in the latter part of clause eight prevents the happening of this event, for it disposes of “ all the rest and residue of my said residuary estate not herein otherwise disposed of,” by giving the same to the legatees therein named. Undoubtedly, when the testatrix here uses the expression “ all the rest and residue of my said residuary estate not herein otherwise disposed of,” she refers to that portion of her estate which was the proceeds of the sale of the property directed to be made by virtue and under the provisions of the seventh clause of the will of the testatrix, and which was in some sense her residuary estate, and these four persons would not, under that language alone, take this fund. But this last provision in clause eight makes a true residuary estate, and these'are true residuary legatees, because in addition to language which gives them the residuum of that property, they would, in the contingency specified, take the property described in the preceding clauses by virtue of the directions therein contained. The residuary estate referred to by the testatrix in the clauses preceding the seventh is, as we think, the residuary estate which she assumes will remain after the payment of these specific legacies referred to in the seventh and eighth clauses of the will. I have no doubt that such was the intention of the testatrix. She undoubtedly expected that her estate would prove sufficient to pay all those specific legacies which she provided for in the seventh and eighth clauses of her will. It cannot be supposed that she sat down and went through the form of disposing of property by will which she believed at the same time would be insufficient to pay such legacies. No such foolish and useless intent should be imputed to her. She believed that there would still be left a sum unprovided for, the disposition of which was to be made by this final provision already alluded to, and which would dispose of a true and final residuum. Assuming that the testatrix supposed that the fund to be created from the sale of her property would be sufficient to pay these various legacies what other estate would exist than that which would remain after such payments? What other estate could she mean when speaking of her “ residuary estate ” in the second, third and other clauses preceding the seventh, except the estate which she was giving to these residuary legatees named in the last portion of the eighth clause? In a certain sense that portion of the estate she ordered sold in the seventh clause was a residuary'estate, because she directed all of the estate to be sold not heretofore disposed of. Out of a sale of this estate which she thus describes she provides a fund for the payment of specific legacies, and the residue to these four persons. But when she is providing for a possible failure of any of the various devises given in the second, third and other clauses, and directs that they shall fall into and form part of her residuary estate, to be disposed of as that estate is disposed of, I cannot doubt that in such case the residuary estate she speaks of and which she has in mind is that which she assumes will exist after payment of legacies, and which will go to these four residuary legatees above-named. In the two trusts created by her in the seventh clause, there was a life tenant in each for whom the particular trust was created, and that life tenancy might remain for years, and it certainly cannot be believed that the testatrix had in mind a possible failure of assets to pay legacies, and the failing in of a life estate years after her death, and the application of the fund towards the satisfaction of these specific legacies, and it is to be noted that these two trusts are created in this very seventh clause where it is claimed the real residuary estate is thereby created. The trust funds are raised out of a sale of the “ rest, residue and remainder of ” her estate, and yet she directs those trust funds after the death of the cestui que trust to be disposed of as part of her “ residuary estate.” Is it not plain that she means by those words, that residuary estate mentioned in the latter part of clause eight ? This construction adds strength to that contended for in the third clause.

• Various other reasons I think suggest themselves for the construction we give to the words residuary estate ” when used in the clauses of the will preceding the seventh clause, but it is not necessary to refer to them in detail. We cannot say, as a matter of law,that testators always mean precisely and definitely the same thing when they use the same expression in different parts of their wills. It is a good rule to say that generally' they do. It is always, however, a question of intention, and that intention the context or the facts surrounding the subject may show to be different in different places, although the same expression may be used in both. By virtue of the provisions made in the third clause of this will the fund therein spoken of must go to the four persons named in the latter portion of the eighth clause and in the codicil as residuary legatees, because I have no doubt that the testatrix so intended by the use at that time of the expression “ residuary estate.” Under this construction the charitable institutions have no title to any portion of this fund.

I have read the various briefs of the counsel who have appeared for these institutions and filed briefs in this court. They are exceedingly able presentations of their views. Without assuming to answer at length many of the objections to our construction of the will of the testatrix which are therein urged, we think none of them is tenable and that the judgments of the courts below should be affirmed, with costs to the plaintiff and the guardians. ad litem of the infant defendants, payable ont of the fund.

All concur.

Judgments affirmed.


author: Bartlett, J.

text:
    Emma L. Hirsh, et al., by Gruardian, etc., et al., Resp’ts, v. Frederick Auer, as Executor, etc., App’lt.

      (Court of Appeals,

      Filed April 23, 1895.)

    1. Witness—Section 839 of the Code.
    It is competent to prove a material admission of a party to the action, although it includes the statement of a conversation between the witness and a deceased person, which would otherwise be incompetent under § 839 of the Code.
    2. Same.
    A witness, who is not a party and has no present or vested interest in the event of the action, is not so interested as to prevent him from testifying under the above-mentioned section.
    •3. Trusts—Creation.
    Trusts in personal property may be created by paroi', and no particular form of words is required to accomplish this result.
    4. Same.
    If they are not against public policy and do not contravene any existing provisions of law, they will be enforced.
    •5. Same.
    The fact that the trust deals with a contingent interest is of no moment; when the interest vests and the trustee receives the fund, the trust attaches to it.
    Appeal from judgment of the general term of the supreme •court in the fourth judicial department, entered upon an order which affirmed a judgment in favor of plaintiffs entered upon a ■decision of the court on trial at circuit without a jury.
    This action was brought by three of the children of John Hirsh, deceased,, to recover the proceeds of a policy or certificate of membership in the Ancient Order of United Workmen, of which he was a member, which was made payable to Clara Auer, a sister of said Hirsh.

      T. K. Fuller, for app’lt; C. L. Stone, for resp’ts.

       Affirming 61 St. Rep. 584.

   Bartlett, J.

John Hirsh, deceased, the father of the plaintiffs, was, at the time of his death, a member of the society known as the Ancient Order of United Workmen, and held its certificate •of insurance upon his life for $2,000, payable to his sister Clara Auer.

The plaintiffs are the children of the insured, and sued the beneficiary to recover the $2,000 collected by her on the certificate of insurance upon the ground that she agreed with her brother, John Hirsh, that when she received the money on the policy she would ■expend not to exceed $500 of it in paying his funeral expenses .and for a monument, and would divide the $1,5.00 equally between his children, the plaintiffs.

Clara Auer, the beneficiary, was living at the time this action was commenced, but died since the trial, and her executor is now ■defendant.

The cause was tried at the circuit without a jury and a judgment rendered in favor of plaintiffs for $1,500, interest and costs.

The general term affirmed the judgment.

Assuming that the evidence introduced by plaintiffs was competent, we cannot say there was legal error in the findings of fact, and the decision of the court below is conclusive as to the facts.

The learned counsel for the defendant has argued with great earnestness and ability several grounds of legal error which he insists must lead to the reversal of this judgment.

The first ground relates to the admissibility of evidence which was most important in its bearing upon plaintiff’s contention that the insurance money to the extent of $1,500 was held by Clara Auer for their benefit.

John Hirsh died February 24th, 1892, and had in his possession at that time the certificate of insurance.

On the 2d of March following two of the plaintiffs, Mary Ann and her sister Emma, called on their aunt, Clara Auer, the beneficiary named in the certificate, and delivered the same to her.

At the trial Mary Ann was put upon the stand by plaintiffs’ counsel, and against the objection and exception of defendant allowed to testify that when she delivered to Clara Auer the certificate of insurance she informed her that John Hirsh, the insured, had told witness that he had an understanding with Clara Auer, when he had the policy made in her name, that when he died she was to pay his funeral expenses and erect a monument over his grave not to exceed $500, and divide the balance equally among the plaintiffs, and that Clara Auer said in reply : “ That is right; that is right, Mamie; that is right. Your father told me this ; that was the understanding when your father had the policy changed into my name.”

Defendent’s counsel insists that under the guise of a conversation with the defendant two of the plaintiffs (Emma having sworn to the same transaction) were permitted to give a conversation with the deceased, which was incompetent under § 829 of the Code of Civil Procedure.

■ We are of opinion that this evidence was competent as tending to prove an admission of Clara Auer against her interest, she being alive at the time of the trial.

This was not an effort on the part of the plaintiffs to show a personal transaction or communication between the witness Mary Ann Hirsh and her father, and consequently § 829 of the Code has no application.

It was competent to prove this admission of the defendant Clara Auer, and in order to do so the entire conversation between the witness and defendant was material as pointing out the nature of the admission.

The only legal effect of this evidence was to prove the admission of the defendant, and it was properly received and considered by the trial judge.

Certain evidence of Charles Hirsh, a son of the insured, was also objected to under § 829 of the Code.

The witness was not so interested as to prevent his testifying; he was not a party and had no present or vested interest in the event of the action. Connelly v. O'Connor, 117 N. Y. 91; 26 St. Rep. 840.

Another alleged ground of error is based upon the proposition that no trust could be impressed upon the proceeds of the insurance by an agreement between the insured and the beneficiary,, made prior to the insurance.

We see no legal objection to the agreement made by the insured and the beneficiary in this case.

It in no way interfered with the contract rights of the society issuing the certificate of insurance, nor did it vary the certificate in any planner; the insurance was paid to the beneficiary named and the agreement wss in harmony with the objects of the society.

The original certificate was payable to the wife of the insured, and' when she died John Hirsh'selected his sister to act as beneficiary and disburse the insurance money in the manner indicated, for the benefit of his infant children.

It was competent for Clara Auer to agree with her brother that she would receive the proceeds of his life insurance, subject to such a trust as he might create. The fact that the insured could have at any time changed the beneficiary named in his certificate has-no bearing upon the question as now presented; he did not, as a. mátter of fact, exercise that right, and his sister collected the insurance impressed with the trust created by the agreement, which the trial court has found was made by the parties in interest.

Trusts may be created in personal property by paroi, and no-particular form of wor.ds is required to accomplish the result. Matter of Carpenter, 131 N. Y. 186 ; 42 St. Rep. 627; and cases cited.

The statutes of this state do not define the objects for which trusts in personal property may be created," and if they are not against public policy and do not contravene any existing provisions of law they will be enforced. .

The fact that the trust dealt with a contingent interest of the-insured in the certificate of insurance is of no moment; that interest became vested at the death of the insured, and the beneficiary having collected the insurance money, the trust under the agreement creating and acknowledging it, attached to the fund.

A trust of this character is not to be distinguished from assignments of contingent interests which courts of equity recognize as valid. Field v. Mayor of New York, 6 N. Y. 179 ; Stover v. Eycleshimer, 3 Keyes, 620.

Courts of equity will enforce a trust, created by the agreement of a legatee under a will, who takes what appears to be ah absolute gift- on the face of the instrument. Matter of Will of O'Hara, 95 N. Y. 403, and cases cited.

The other points and exceptions in the case have been examined, but need not be discussed in detail, as we are satisfied the judgment below was right and should be affirmed.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


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    James M. Pender, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Evidence—Negligence.
    In an action for an injury to a person on the track of a street road, a witness, who has testified that the car was running at “a high rate of speed,” and “ going very fast,” may be asked within what distance a car, running at the rate of ten or twelve miles an hour, can be stopped.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a"new trial.

      Morris & Whitehouse, for app’lt; William T. Gilbert, for resp’t.
   Pratt, J.

This is an appeal from a judgment rendered upon a verdict of a jury giving the plaintiff damages for the loss of services of his child, alleged to have been caused by the negligence of the defendant, and from an order denying a motion for a new trial. The evidence upon various circumstances connected with the trial was conflicting, but there seems to be no such preponderance of evidence in favor of the defendant as would have warranted a dismissal of the complaint. The cause was submitted to the jury by a charge as favorable to the defendant as the facts warranted." The judgment must stand, unless some erroneous ruling was made in the course of the trial. The principal exception relied on is to the following question put to a witness for the plaintiff : “Q. Running at a speed of ten or twelve miles an hour, at what distance could it [the car] be stopped ? A. About 100 feet.” This question was objected to, and allowed by the court. It was asked of a motorman, and was not objected to on the ground that he was not an experienced man in running cars as a motorman, but upon the ground that the question contained an assumption that the cars were running at that rate, and this misled the jury. On the question of speed, the evidence was conflicting. One witness said that the car was running at a high rate of speed; another, that it was going very fast; a witness for defendant; that it was going about six miles an hour. Besides, it appeared in the evidence at what point the car struck the girl, and where it was brought too standstill! after the accident. Therefore the distance at which a car could be stopped when going at different rates of speed was not maerial. Another answer to defendant’s contention upon this matter is that the evidence could not have prejudiced the defendant, as the greater the speed at which the car was running the less the negligence of the motorman in failing to stop the car, or, in other words, the greater the distance within which the car could be stopped. Again, we think the question, within the limits of the evidence, “a high rate of speed,” and “going very fast,” would justify such a question. It is a privilege of counsel, always, to propound hypothetical questions to experts, to assume, within the evidence, any state of facts which he claims the evidence justifies, and have their opinion thereon. Harnett v. Garvey, 66 N. Y. 641; Filer v. N. Y. C. Railroad Co., 49 N. Y. 42. Judgment and order affirmed, with costs.


author: Brown, P. J.

text:
    The People, Resp’t, v. Daniel Kerrigan, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Manslaughter—Proof.
    The evidence, in this case, was held to be insufficient to sustain a finding that death resulted from a blow inflicted by the defendant.
    Appeal from a judgment of conviction for manslaughter in the second degree.

      George A. Mott, for app’lt; Daniel Noble, Dist. Atty., for the People.
   Brown, P. J.

The appellant was convicted of the crime of manslaughter in the second degree, in having killed one William Horton. After a careful examination of the case, we are of the opinion that the evidence does not establish the appellant’s guilt, and is of too weak a character to support the verdict. It appears that about four o’clock on the morning of November 7, 1893, the appellant and deceased were in Gaffney’s saloon, on Flushing street, in Long Island City, in company with William Gemp, Patrick McDermott, Daniel Stine, and. William Gaffney. Horton was drunk, and Kerrigan had been drinking. They quarreled, but no blows were struck; and at the direction of the bartender, Gaffney, they went out of the saloon. McDermott was told to go outside and separate them. He testified : That he went out, and found them struggling together. That their arms were around each other, as if they were wrestling. But he saw no blows struck, and separated them, and all then returned to the saloon. When inside, Horton was found to have a cut about an inch and a half long over his right eye, and he said, referring to Kerrigan, that “he must have used a knife on me.” The blood was washed from his face, and on his complaining that he was cut in another part of his body, he was examined, but no wound was found. There was no proof that Kerrigan had a knife about him at any time during the night. Soon after, all parties left, except Horton and Gaffney; and later Horton left the saloon alone. He was then drunk, but able to walk. No one saw him alive after that, and no account is given in the testimony of his whereabouts between his leaving the saloon and his death. Neither is it shown where or how he died, or who found bis body, or under what circumstances it was found. Dr. John Clayland was sworn as a witness for the prosecution, and testified that on November 9th, between four or five o’clock in the afternoon, he made an autopsy upon Horton’s body, and that in his opinion he had then been dead from twelve to twenty-four hours. He found abrasions on the limbs. The eyes were black. There was a wound over the right eye ; discoloration extending down to the cheeks; bruises on the side of the head. He stated the cause of death to have been inflammation of the meninges of the brain, and gave it as his opinion that the cause of that inflammation was the blow which inflicted the wound over the eye. The deceased was shown to have been a drunkard for a long time. He had been in the hospital in October prior to his death, suffering severely from alcoholism; and his lungs, heart and kidneys were found, in the autopsy, to be in a very advanced state of disease. The physicians called on the trial differed as to the cause of - Horton’s death. All agreed that the inflammation, which was the immediate cause of death, might have resulted from other causes than the blow over the eye. Dr. Clayland thought the blow the proximate cause of death, while the other physicians appeared to be of the opinion that it. was just as probable that death was the result of alcoholism. Dr. Burnett, who was called by the prosecution, testified that he could not say whether the primary cause of death was the blow or other-cause ; that the blow might have caused the inflammation, but he was unwilling to sweat that it did.

The primary cause of Horton’s death was plainly pure speculation. It was, in the first place, an inference solely, that Kerrigan struck him over the eye. No one saw the blow struck, and Horton did not directly assert that Kerrigan had struck him. His remark that Kerrigan must have used a knife' on him was rather an inference drawn from the wound- and the presence of the blood on his face. Such a statement from a drunken man has, we think, very little probative force. Beyond the slight loss of blood, Horton appeared not to have suffered any ill effects from the blow, however received, and, when he left the saloon, was in about as good physical condition as he was when he entered it." Giving to all this evidence the full effect claimed for it, and which the jury appear to have given it, it does not permit the conclusion, beyond a reasonable doubt, that Horton died from the effects of Kerrigan’s blow. The absence of any evidence as to the subsequent movements of Horton throws great doubt on the cause of his death. Kerrigan was sworn as a witness in his own behalf, and denied striking the blow. His version of the matter was that, when Horton came towards him, he fell and cut himself; that he lifted him to his feet, and was struggling with him when McDermott separated them. He denied having a knife, or inflicting the wound, and his testimony appears to be as worthy of credit as that of any of the other witnesses who were in the saloon. We think the evidence is of too weak a character to sustain the verdict, and the judgment should be reversed, and a new trial granted.

All concur.


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    Charles E. Travis, Resp’t, v. Edward M. L. Ehlers, et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Evidence—Admission in tleadinq.
    In an action on a covenant in a lease, it is not necessary to offer the lease in evidence, where all that the plaintiff desires to establish by it is admitted in the answer.
    Appeal from a judgment in favor of plaintiff.

      Joseph C. Crane, for app’lts; Arthur Furber, for resp’t.
   Pratt, J.

This action was brought upon a covenant in a lease, and a copy of the lease was set outi in the complaint. Two of the defendants, Ehlers and Warner, put the lease in issue by the following words in their answer, to wit:

“(1) The defendants admit that, on or about the time mentioned •and set forth in said complaint, the plaintiff leased to one Bernard Travis, now deceased, the house and lot known as ‘No. 30 East 127th street,’ in the city of New York; but the defendants deny, upon information and belief that tlie said lease is in all respects correctly mentioned and set forth in said complaint, and for greater certainty as to its provisions they beg leave to refer to the original, or the record thereof, when produced on the trial of this action."

The plaintiff upon the trial failed to put the original lease in evidence, and now the defendants raise the point that the plaintiff failed to prove his case, and ask that the judgment be reversed, although upon the trial the court found as a fact:

“(1) That on the 24th day of July, 1894, by an indenture in writing, made under seal, the plaintiff leased to one Bernard Travis, and Bernard Travis hired from the plaintiff, the house and lot known as ‘No. 30 East 127th street,’ in the city of New York, for the term of his (Bernard Travis’) natural life, and that in and by said indenture said Bernard Travis, among other things, covenanted with plaintiff to pay and discharge a certain mortgage, which was then a lien upon the said premises, and which was given to secure the payment of the sum of $4,500 on the 1st day of May, 1884, with interest."

It was plainly an oversight on the part of the plaintiff in failing to offer the original lease in evidence; and might be fatal to judgment, were it not for the admission of the defendants contained in their answer. Among other matters contained in their answer is the following:

“(2) Defendants admit that the said Bernard Travis, in and by the terms and conditions of said lease dated on or about the 24th day of July, 1884, thereby covenanted and agreed to pay a certain mortgage made by one Eliza A. Travis, and the bond accompanying the same, bearing date the 13th day of April, 1880, to secure the payment of the sum of $4,500 on the 1st day of May, 1881, and recorded in the office of the register of the city and county of New York on the 22d day of April, 1888, in-liber 1503 of Mortgages, p. 6."

This admission plainly identified the lease, and contained all that was necessary on the part of plaintiff to prove his case. It was an admission of the vital part of the case necessary to maintain the action, and contained the covenant upon which the suit was brought. We can justly infer that the existence of the lease was taken for granted upon the trial, as well from the fact that the judge specifically found as from the fact that it was not produced. It was not necessary to produce the lease after all that the plaintiff desired to prove from it had been admitted. There is no exception in the case, and no error. In fact, the defendants failed to prove any fact to impeach thewalidity of the judg. ment. It was no defense to assert that plaintiff paid off the mortgage voluntarily after a demand upon the executors, and their refusal to pay, as his property was liable for the mortgage in the first instance, and he had a right to discharge the lien.

Judgment affirmed, with costs.


text:
    Anchor Brewing Company, App’lt, v. Village of Dobbs Ferry, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Municipal corporation—Liability—Surface water.
    A municipal corporation is not liable for consequential damages to a landowner caused by the discharge of surface water upon his property, which is the result solely of the grading of streets and highways in pursuance of legislative authority.
    Appeal from a judgment, dismissing the complaint on the merits.

      Lauterbach & Scheuerman, for app’lt; W. J. Townsend and Chas. P. McClelland, for resp’t.
   Brown, P. J.

This action was brought to obtain an injunction restraining the defendant from maintaining and continuing sewers, culverts, and drains, which it was claimed, diverted the natural flow of surface water, and cast it, together with sewage, in excessive volumes, upon the plaintiff's property, and also to recover damages incident to such acts. The village of Dobbs Ferry was incorporated in the year 1873, and is built upon a hillside, which slopes to the west and south. The plaintiff’s property lies at the foot of the hill, and is bounded upon the west by the land of the New York Central & Hudson River Railroad Company and the Hudson river. It receives the natural flow of surface water from a large territory, upon which the village is in part built, which is indicated upon a map printed in the case. The village has opened and graded streets, paved the gutters, and set the curbs, and constructed drains and culverts. The population has also increased, and upon many of the private grounds within the village roads have been constructed, with gutters and drains, which receive the flow of surface water, and discharge into the public streets. Plaintiff’s property is bounded on the east by Palisade street. Next to the east, and further up the hill, is Main street. These two streets run in a general direction north and south from Cedar to Chestnut street. Other streets run to the east out of Main street. All the water flowing down the hill through the main streets is concentrated at a point on the easterly side of Palisade avenue, across which it flows through a covered drain, which is continued through private property to the land of Mr. Lange. Thence it flows in an open waterway across Lange’s property, and is finally discharged into a private drain upon plaintiff’s land. West of Main street the drain is constructed along the bottom of a natural depression in the land, and the open waterway through Lange’s land is a natuaral water course, to the point’ where it connects with plaintiff’s drain. The testimony introduced by the plaintiff would justify the conclusion that, since the incorporation of the village, the volume of water discharged upon plaintiff’s land has largely increased, and that plaintiff has been injured to a considerable extent by this increased flow. . The complaint was dismissed by the trial court, upon the ground that the water discharged upon plaintiff’s property was surface water only, which flowed in its natural course, and that, for injuries attributable to that source, the defendant was not liable.

We agree with.the conclusion reached by the special term. The rules of law applicable to cases of this character are well settled. Municipal corporations are liable for damages occasioned by acts tesulting in the creatidn of public or private nuisances, or for an unlawful entry upon property of another, whereby injury is caused; and no immunity from liability results from statutory power conferred upon the corporation, the exercises of which results in the appropriation of or physical injury to private property. Within this rule, such corporations may not, by the construction of sewers or drains, collect sewage, and deposit it upon the premises of an individual, nor can they, by constructing streets and gutters, collect in a body surface water, which would not naturally flow in that direction, and discharge it upon private property. Bastable v. City of Syracuse, 8 Hun, 587 ; Byrnes v. City of Cohoes, 67 N. Y. 204; Noonan v. City of Albany, 79 id. 470; Seifert v. City of Brooklyn, 101 id. 136-143. But a municipal corporation is not liable for consequential damages to a landowner caused by the discharge of surface water upon his property, and which is the result solely of the grading of streets and highways in pursuance of legislative authority. Wilson v. Mayor, etc., 1 Denio, 595; Kavanagh v. City of Brooklyn, 38 Barb. 232 ; Lynch v. Mayor, etc., 76 N. Y. 60; Birdsall v. Clark, 7 Hun, 351.

The testimony in this case does not show that the defendant has constructed any sewers in any of the public streets of the village. Undoubtedly, a large amount of filth and obnoxious substance has been cast upon plaintiff’s property ; but, so far as is disclosed in the evidence, it consisted solely of substance accumulated in the 'streets and gutters, and carried by the large flow of water to the foot of the natural watershed. Neither does the testimony show that, by the grading of any of the streets, the flow of the surface water has been diverted from its natural course. The construction of the culvert under Palisade street had no other effect than to conduct under the street the water which, in the absence of the culvert, would have flowed across the surface. The plaintiff's witness Cozzens testified that, before the street was graded, the water ran»on the surface at that point. He said : “It found its way over what is now Palisade street, into the property that now belongs to Mr. Morton. * * * As soon as they used wagons there, they put a culvert there.’' The time of which the witness spoke was prior to the incorporation of the village. He further testified, speaking of the present time: “ If that sewer were not there, the water would, nevertheless, have flowed down over that water course, and on the plaintiff’s property.’’ The increase in the size' of the culvert has no material relation to the plaintiff’s complaint. It was at first constructed of too small dimensions, and failed to carry off all the water flowing on the street. Some of it overflowed and may have injured other property. But none was, as a result, cast on plaintiff’s land which would not have gone there in its natural course. Neither do I find that any water flowing to the south upon Main street has been diverted from its natural course by the defendant. There is evidence that, prior to the defendant’s incorporation, the water flowed down down the east side of Main street to Chestnut street; but the proof is that it ceased to run in that direction before the village was incorporated, and, at the time of its incorporation, all the water from the east side of that street was flowing into the drain at the junction of Elm street. The case shows that the increased volume of water which in time of rainfall is now cast upon the plaintiff's property is the result of the growth of population in the village, and the consequent grading of streets, erection of buildings, and improvement of private grounds. In its natural condition, much of the water fhat fell upon the land was absorbed by the soil, and evaporated by the atmosphere, and a part only reached the foot of the watershed. But graded streets, paved gutters, and flagged walks. prevent its absorption by the ground, and in increased quantities it flows in its natural course to the river. For this result, however detrimental and injurious it may be to the plaintiff’s property, we are of the opinion that the defendant is not liable. It cannot be compelled to construct drains for the disposal of surface water. Milk v. City of Brooklyn, 32 N. Y. 489; Hines v. City of Lockport, 50 id. 236. Neither can it be compelled to destroy its streets, or remove its gutters and paving. What the village did was lawful at the time, and, in the absence of any claim that it has exceeded its power or performed the work in a negligent manner, it is not legally responsible for the consequential injury to adjacent property. The judgment must be affirmed, with costs.


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    Joshua R. Smith, App’lt, v. William A. Gould, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Compromise—Consideration.
    The payment of part of a judgment by a person other than the debtor is a sufficient consideration to support an agreement by the judgment creditor to cancel the judgment.
    Appeal from a judgment dismissing the complaint.

      Elliott J. Smith, for app’lt; Livingston Smith, for resp’t
   Brown, P. J.

This was an equity action to obtain a decree directing defendant to cancel a judgment recovered by him against the plaintiff, upon the ground that it had been paid and settled. The learned trial judge dismissed the complaint, placing his decision upon the ground that the plaintiff had not successfully borne the burden of proof and established the facts of his claim by a preponderance of evidence. A careful examination of the testimany has led us to a different conclusion, and, giving due "effect to the denials of the defendant, we are of the opinion that they are entitled to very little consideration, in view of the undisputed facts of the case. It appears that on December 15, 1884, the defendant recovered a judgment against the plaintiff in the supreme court in Suffolk county for the sum of $736.96, which judgment was docketed in the clerk’s office on that date. Joshua B. Smith was insolvent,- and nothing was paid or collected on the judgment. On April 27, 1886, Ethelbert M. Smith, a brother of Joshua B., with his assent and in his behalf, had, at his office in New York city, an interview with Gould in regard to the settlement of the claim, the result of which was that Ethelbert paid to Gould $250 in cash, and transferred to him a promissory note made by M. R. Smith & Co., due July 23, 1866, for $150 (which note was subsequently paid), and received from Gould the following instrument:

“Smithtown, April 27, 1886.
“Received from Ethelbert M. Smith four hundred dollars, in full settlement of all claims against him, Joshua B. Smith, or estate of Ebenezer Smith.
‘$150, M. R. Smith & Co.’s note, due July 23, 1886.
.“$250, also E. M. Smith.
“$400. Yi. A. Gould.

On May 6, 1893, one Herbert W. Smith, in behalf of the plaintiff presented to Gould a satisfaction of said judgment, and requested him to sign it. Gould declined to sign it, stating as a reason that a bill had accrued since the settlement of the judgment, of about $70, and that he would not sign the satisfaction piece until he collected that bill.

The foregoing facts are either admitted or appear in the case by uncontradicted testimony. Ethelbert M. Smith was called as a witness for the plaintiff. He gave the details of the interview, which resulted in the payment of the money and the execution and delivery of the receipt. In substance, his testimony, was that Gould agreed to accept $400 in settlement of the judgment, and to execute a satisfaction thereof, which the witness was to have prepared by a lawyer; that thereafter he mailed to Gould the note and two checks, one for $50 and one for $200, both payable to Gould’s order, and which were both paid, and in return received by mail from Gould the receipt above set forth. The defendant admitted the interview in regard to the settlement of the claim and the receipt of the $400. He admitted the presentation to him by Herbert W. Smith of the satisfaction piece, and the request and refusal to execute it, and did not deny that he refused to sign it unless a bill, subsequently contracted, was paid; and he did-not deny the execution of the receipt or its delivery to Ethelbert Smith, as testified to by him. He further testified that Ethelbert told him that he would give him one-balA of the claim, and that he must take that or nothing; that, at the time of the interview, he did not know he had a judgment against Joshua, and supposed he was settling a claim against Ethelbert But he admitted on cross-examination that he had placed the claim against Joshua in the hands of his lawyers to sue, and he was unable to mention any claim he had against Ethelbert except the one upon which he had sued Joshua ; and he failed to mention any other claim against Joshua except the one upon which judgmeut had been recovered. He denied that he agreed to settle the judgment or execute a satisfaction piece. Of this testimony it may be said that it is of no importance whatever whether the witness knew he had a judgment against Joshua B. Smith or not. If he did not know it, he had forgotten it. He knew he had a claim, that he had directed his lawyers to sue Joshua upon it, and remembered its amount. The statement that he supposed he was settling a claim against Ethelbert is unworthy of belief. He could remember no claim on his examination except the one he sued Joshua upon. The statement that he did not settle the judgment is contradicted by the receipt. He had no claim against Joshua except the judgment, and there is no question but that the receipt was his deliberate and intelligent act. His whole testimony does not materially contradict the receipt, and that paper, read in connection with the undisputed facts, shows conclusively what the transaction was. It was a compromise and settlement of the judgment against Joshua, and the fact that it was coupled with a verbal agreement to satisfy the judgment is corroborated by the character of the transaction and the uncontradicted evidence of Herbert W. Smith.

The point made by the appellant that a debtor cannot discharge his debt by a payment of a sum of money less than the debt has no relevancy to the present case. Joshua B. Smith, the debtor, did not pay the money. He was insolvent, and his brother, who made the payment, was in no way liable to the defendant on the judgment. The receipt of Ethelbert’s checks and the note was ample consideration for the agreement to cancel the judgment, and the agreement should be enforced. It wbuld be manifest injustice to permit the defendant, after the receipt of the money from Ethelbert, to enforce the judgrrient against the plaintiff.

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

All concur.


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    Phebe A. Smith, Resp’t, v. John P. Cranford et el., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1: Watercourses—Injury to fish.
    A person, who diverts or pollutes a stream which flows into a fish pond, is liable to the owner for injury to the fish.
    2. Accord and satisfaction—Executory.
    Accord without satisfaction, or accord partly executed, cannot be successfully pleaded as a defense.
    Appeal from a judgment in favor of plaintiff.

      Jesse Johnson, for app’lts; Fred. Ingraham, for resp’t,
   Brown, P. J.

The defendants, from September to November, 1890, were engaged as contractors with the city of Brooklyn, in constructing upon the city’s land an aqueduct in aid of the city’s water supply. The aqueduct crossed a small stream of water w.hich flowed southerly through the plaintiff’s lands, and upon which the plaintiff had a trout preserve. The preserve consisted of four ponds, constructed by deepening and widening the stream and building dams, and were together about 350 feet in length. The referee found that the water of said stream was pure, clear, and cool, and well adapted to the breeding and raising of trout, and that in September, 1890, said preserve was stocked with about 600 trout three years old, 500 two years old, 2,500 one year old, and 3,000 spawn, and was producing a yearly income of $150; that in constructing said aqueduct the defendants fouled and polluted the waters of said stream by discharging therein earth, oil, and other substances, so that when it reached plaintiff’s lands it was unfit for use, and destructive to the health and life of the .trout in the preserve; that defendants also diverted the water of said stream from plaintiff’s preserve, and diminished the supply, thus yendering the stream, as it flowed through said preserve, sluggish and unsuitable to raising trout, and that in consequence of the pollution and diversion of said stream the trout in the preserve were made sick, prevented from spawning, and a large number died, and the loss sustained by reason of the aforesaid acts was assessed at the sum of $850. The defendants’ liability for the result of the diversion and pollutidn of the stream is settled by the case of Covert v. Cranford, 141 N. Y. 521; 57 St. Rep. 720. In that case the court quotes with approval from Judge Denio’s opinion in Bellinger v. N. Y. C. Railroad Co., 23 N. Y. 42, “that the maxim, 1 Aqua currit et débet currere,’ absolutely prohibits all individuals from interfering with the natural flow of .water to the prejudice of another riparian owner, upon any pretense, and subjects ,them to damages at the suit of any party injured, without regard to any question of negligence or want of care.” The finding of the referee as to the diversion of the stream and pollution of the waters has ample- support in the evidence. The aqueduct crossed the stream a few hundred feet north of the plaintiff’s property, and intercepted the flow of its water at that point. It was, at that point, about 18 feet deep, and the ground was marshy and full of springs, and to get rid of the water in the aqueduct defendants had two large pumps, which pumped the water out upon the surface, whence it found its way back to the stream in a muddy, roily condition, carrying with it, on its surface, a great deal of oil from the machinery. The plaintiff was entitled to the natural flow of the water. The defendants’ acts first diverted it from the stream, and then permitted it, in a dirty and polluted condition, to fin'd its way into the plaintiff’s ponds. The amount of loss sustained was clearly proven, and in the assessment of the damages the referee kept well within the rule applied in Covert’s case. It appeared that in September, 1890, the plaintiff commenced an action against the defendants to restrain them from interfering with said stream, or doing anything to-diminish the supply of water flowing to the plaintiff’s ponds, or to impair the quality thereof, and that while said action was pending an agreement between the parties was entered into, which provided: (1) That the action should be discontinued. (2) That all dams belonging to plaintiff, which had been or might thereafter be damaged or destroyed by the defendants, should be replaced and repaired by them, and kept in good condition, until the completion of the work about them. -(8) That defendants were liable to pay plaintiff the full value of trout killed during the progress of the work, and that plaintiff should receipt therefor in full, from time to time, as she should be paid therefor. (4) That defendants should pay plaintiff $3 per day from September 8,1890, until the completion of the work in and about said stream. (5) That defendants should pay $50 for the costs and disbursements of the suit. Upon the execution of this instrument, $50 for costs was paid to the attorneys, but no other payment ever had been made under it to the plaintiff. The defendants claimed the agreement was a bar to the maintenance of this action, and offered to prove that no demand had ever been made upon defendants for payment for dead fish, and that defendants had made a proper tender of performance of the agreement to the plaintiff, which testimony was excluded. The agreement was not an accord and satisfaction. It was an accord executory. Tender of performance has never been held, for the purpose of this defense, to be equivalent to execution. Accord without satisfaction, or accord partly executed, cannot be successfully pleaded as a defense. To sustain a plea of accord and satisfaction, the agreement must be completely executed. Brooklyn Bank v. De Grauw, 23 Wend. 342; Noe v. Christie, 51 N. Y. 270; Kromer v. Heim, 75 id. 574. The referee properly ruled that the agreement was executory, and was not a bar to the maintenance of this action. Hone of the other exceptions are well taken, and the judgment must be affirmed, with costs.

All concur.


author: Dykman, J.

text:
    The People ex rel. Cornelius Foley, App’lt, v. Board of Education of Long Island City, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    1. Schools—Employment of Engineer.
    Under the charter of Long Island City, the board of education has power to appoint an engineer to take charge of the steam-heating apparatus of the school.

      2. Same—Discharge—Veterans.
    Under § 1, chap. 716 of 1894, the board of education may discharge such engineer, where he refuses to submit to an examination as to his competency, on a change in the system of heating from hot water to steam.

      Certiorari to review the decision of the board of education in removing relator from office.

      Lyman W. Redingion, for relator; William H. Stewart, for resp'ts.
   Dykman, J.

This is a proceeding by certiorari to review the action of the board of education of Long Island City which resulted in the removal of the relator from the position of engineer in charge of the heating apparatus of school No. 7,o in the Fifth ward of that city. The facts are contained in the "return of the board, as follows: “On or about the 14th day of March, 1893, the relator was given charge of the heating apparatus then in school No. 7 in the fifth ward, Long Island City, until one Evers, who had formerly been in charge, and was1 then ill, should recover his health. On or about the 21st day of March, 1893, the board of police of Long Island City issued a second-class engineer’s certificate to the relator. The temporary appointment of the relator was made by one of the trustees of the city, and thereafter the board of school trustees removed the relator, and appointed one Thomas Curran. Thereafter the relator applied for a mandamus which application was opposed by the board of education, for the reason and upon the ground that the school trustees were only authorized by law to appoint janitors, the power to appoint engineers being vested in these respondents as they were advised. Fer the reason that the relator was an honorably discharged soldier, and for the further reason that the board of education had ratified his appointment by paying and recognizing him, the .application for the mandamus was granted; and on or about the 25th day of April, 1894, in obedience thereto, the relator was reinstated as engineer in charge of the heating apparatus in school No. 7 in the fifth ward of Long Island City. Between the date of the removal of the relator, in 1893, and his reinstatement, in May, 1894, the entire heating apparatus in said school had been changed from hot-water boilers to a steam boiler, engine, and complicated machinery; and these respondents assumed that they were entitled to know that the relator was competent and qualified, and for that reason directed him to present himself to be examined by an expert for a certificate of the first class. The expert, Thomas Mulligan, notified the respondents that the relator did present himself at the time and place fixed by such expert, but refused to submit to an examination, as required by resolution of these respondents; and by a further resolution, May 16, 1894, requiring the relator to present himself at their rooms in the city hall in Long Island City on the 18th day of May, 1894, and submit to an examination or show cause why he should not be punished for refusing to obey the orders of these respondents. On the said 18th day of May, 1894, the said relator appeared before the board of education, and, without awaiting the arrival of Thomas Mulligan, tb»e examining engineer, positively refused to submit to an examination. Thereafter, and on the 23d day of May, 1894, the board of education, by a notice (a copy of which is annexed to the return), again directed said Foley, the relator, to appear before them at their rooms in the city hall at eight o’clock on the evening of Friday, May 25, 1894, and submitoto an examination by Thomas Mulligan, the expert designated by the board, to be examined as to his qualifications and competency as an engineer, or show cause why he should not be punished for refusing to obey the orders of the board of education. On the said 25th day of May, 1894, the relator, Foley, presented himself before the board of education, and in an insolent and boisterous manner refused to be examined as to his qualifications and competency as an engineer, and positively refused to-obey the orders of the board of education. Thereupon the board of education passed a resolution dismissing him for his refusal to obey the orders of the board of education, a copy of which order is annexed to the return. There is no provision in the charter or laws of Long Island City authorizing the employment of engineers in the public schools, for the reason that, when said charter and the amendments thereto were at different times passed, the school buildings were old frame structures, heated by ordinary coal stoves. Within the past few years, other and more substantial structures, have been erected, and more recently approved appliances for heating have been added to the school buildings.

The claim of the relator is that the board of education was vested with no power to appoint or remove an engineer; but that argument, if allowed its full force and traced to its legitimate result, will prove too much to be beneficial to the relator. If the board had no power of appointment, then he was not duly appointed, and never was entitled to the position of engineer. We do not, however, deem the position tenable. The relator is not an officer, and has no official position ; he is simply an employe of the board of education. There is no statutory provision for the employment of an engineer for the public schools in Long Island City.

The authority of the board to employ an engineer must be sought in subdivision 2, § 2, sube. 2, tit. 9, c. 461, Laws 1871, which is as follows:

“The board of education shall have power * *. * to employ and to discharge teachers, to designate their duties and to fix their salaries, to employ necessary workmen, and to provide the necessary materials for repairing, altering and enlarging public school buildings or other buildings connected therewith.”

That subdivision imparts the power to employ necessary workmen, and the relator must fall under that denomination, and the section seems to be sufficiently broad tó justify his employment.

After the changes in the system of heating in the school had been made, the board of'education adopted the following rules and regulations among others:

Article 12, § 2 : “The janitor shall have charge of the heating-apparatus except wliegtbe engineer is employed.”

Article 12, § 4: “In any school where the services of an engineer are required, said engineer shall keep the living apartments therein, and shall have control of the janitor of said school and be-responsible for the proper care of the school premises during the school session when steam pressure is on the boilers. The engineer-must remain in and about the boiler room, and under no circumstances absent himself from the building. The engineer shall receive and receipt for all janitor or engineer supplies or material derived for the use at the school building wherein he may be employed.”

There is no limitation or restriction upon the power of the board of education to discharge its employes for a just cause, and there should be none. In such a case the power of appointment bestows the authority for removal also. People ex rel. Kline v. Robb, 126 N. Y. 180; 37 St. Rep. 8 ; People v. Lathrop, 142 N. Y. 113 ; 58 St. Rep. 633. The sufficiency of the reasons for the exercise of the power of removal must be determined primarily by the board. In the case of People v. Laihrop it was said that the ■court had nothing to do with the reason or justice of the removal. That was a proceeding by mandamus to compel the reinstatement ■of the relator as a keeper of the state prison at Sing Sing; and we assume that the.same rule will apply here. If, however, it does not, we have no difficulty in approving the action of the board in .the removal of the relator. Steam is exceedingly dangerous whether it is utilized as a propulsive power or as an agent for heating buildings. The machinery for its utilization is complicated, and its use cannot be committed to persons unskilled in its operation without extreme hazard. The results of a mistake might ■and probably would be disastrous to both persons and property. Many children are gathered together while the steam is in use, during the day, and an explosion would be certain to result in injury or death to many,

The relator held a second-class engineer’s certificate from the board of police of Long Island City, which certified to his competency to take charge of particular steam boiler and engine at the fifth ward public school in Long Island City. It does not appear where that was, but the certificate was second class, and the members of the board and their expert all deemed it necessary thatthe relator should be re-examined. We concur in that conclusion, because the perils of the position require first-class qualification.

The relator contends, further, that he is an honorably discharged soldier, and served as such in the Union army during the war of the Rebellion, and claims immunity from discharge for that reason. The statute upon that subject has been changed, and, without relating its transformation, it is sufficient to state its present form, which is this :

“ In all cases, the person having the power of employment or appointment, unless the statute provides for a definite form, shall have the power of removal only for incompetency and conduct inconsistent with the position held by the employes or appointee.” Laws N. Y. 1894, c. 716, § 1.

Under that provision, therefore, the board of education possessed the power of removal for incompetency and inconsistent conduct. The reason for the removal was the refusal of the relator to obey an order of the board, and our examination has been sufficient to manifest the reason and justice of the order.

It follows, necessarily, that the refusal of the relator to obey the order was improper, and may therefore be deemed conduct inconsistent with the position which he held, within the meaning of the statute. The proceeding of the board in dismissing the relator .should be affirmed, with costs.

All concur.


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    Charles E. Maxfield, Resp’t, v. Oliver L. Carpenter, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Principal and agent—Payment.
    A payment to a person, clothed with a good and apparent authority to sell and deliver, is good against the owner, unless the latter has notified the .purchaser that such agent is not authorized to receive payment.
    Appeal from a judgment entered on a verdict in favor of ■plaintiff, and from an order denying a motion for a new trial.

      Wilton Bennet, for app’lt; A. H. F. Seeger, for resp’t.
   Pratt, J.

This is an appeal from a judgment of a county judge ■reversing a judgment entered by a justice of the peace upon a verdict in favor of the defendant, for no cause of action. The complaint was for the price of goods sold and delivered by plaintiff to ■defendant, and the principal question was whether an agent who received the pay for the goods was authorized to receive it. The jury found the person had such authority, as a matter of fact, and under such circumstances it was error for the county judge to reverse the judgment. Wiley v. Slater, 22 Barb. 506 ; Biglow v. Sanders, id. 147. Much has been written upon the subject of implied agency to receive pay upon the part of brokers and factors, and the general rule is that a broker' has no authority to receive pay, except in exceptional cases. The broker generally has no •authority except to find a purchaser, but, where a person is clothed with a good and apparent authority to sell and deliver, a payment to such person is good against the owner. There can be no •doubt in this case that the plaintiff employed the broker or agent to sell. The broker was not only authorized to sell, but his act of selling was ratified by the plaintiff, by his sending the goods. ’The defendant testifies that he never had any notice that the agent was not the owner of the goods, and “he [the agent] delivered the .goods in my store himself.” The defendant could well have inferred that the agent was the owner of the goods, or part owner, •as he did not disclose the fact that he was acting for any other party ; and common honesty, it seems to me, required that plaintiff should have given notice when he sent the goods, upon the bill •sent with them, that the purchaser should pay to no one but him;self. The plaintiff testified that he had, since he had been in business, given such a notice on his bills. The plaintiff employed the :agent. He knew the relations that existed between them. He neglected to apprise the defendant of the agent’s want of power to ■collect, and it was through his act of employing a dishonest agent that the loss occurred. It may be that the weight of evidence is possibly in favor of the plaintiff, but that is not sufficient to justify ■a reversal of the judgment The agent, when he went into defendant’s store, made the remark, “We deal heavily in foreign fruits giving the defendant every reason to believe he was the principal, and defendant said he never had notice to the contrary. Under all the circumstances, we think the defendant was justified in making the payment. At all events, the jury so thought, and their verdict ought to stand. Judgment of county court reversed, and judgment of justice affirmed, with costs.

All concur.


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    First National Bank of City of Brooklyn, Resp’t, v. William T. Wallis et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)
    Election oe bemedy—Sevebal debtobs.
    Where two or morepersons are severally liable for the same debt, the-maintenance of an action and recovery of a judgment against one do not constitute an election of remedies, so as to preclude the creditor from, afterwards suing in a separate action others liable for the same debt.
    Appeal from a judgment in favor of plaintiff.

      Henry Orofut White, for app’lts ; Joseph A. Burr, for resp’t.
   Brown, P. J.

This action was brought to recover against the-appellants individually upon a promissory note, indorsed to the respondent by H. Stuetzer & Co., of which the following is á copy:

“1,500. Jersey City, N. J., Dec. 2, 1892.
“Three months after date, we promise to pay to the order of H. Stuetzer & Co. fifteen hundred & 00-100 dollars, payable at First National Bank of Jersey City. Value received.
“Wm. T. Wallis, Prest.
“No. 1,027. Geo. T. Smith, fiws.”
Indorsed : “Pay First Nat’l Bank, Brooklyn, or order. H. Stuetzer & Co."

The note was given to Stuetzer & Co. for work done for the Wallis Iron Works, of which corporation the appellant Wallis was the president and the appellant Smith the treasurer. .Shortly after the maturity of the note, the bank sued the Wallis Iron Works thereon, and judgment was entered against said corporation by default. Nothing was collected on said judgment, and, before the commencement of this action, it was, by an order of the court, vacated, and the action was discontinued. The note was discounted for the benefit .of and upon the credit of Stuetzer & Co., and, at the time of discounting it, the bank had no knowledge of the circumstances surrounding its execution and delivery., qr what it was given for, but the president of the bank testified that he supposed it was the note of the Wallis Iron Works.

In another action this court decided, upon the same facts, that a note between the same parties was, on its face, the obligation of the appellants, and not of the Wallis Iron Works. First Nat. Bank v. Steutzer, 80 Hun, 485 ; 61 St. Rep. 823. That decision rested upon the authority of the case of Casco Nat. Bank v. Clark, 139 N. Y. 307 ; 54 St. Rep. 590, from which it appears impossible to distinguish it. The appellants now claim, however, that, by suing the Wallis Iron Works, the respondent exercised a right of election between inconsistent remedies, and is therefore barred from maintaining this action against the appellants. The general rule is well settled that when a party has grounds to bring different actions arising out of the same state of facts against different persons, aud the maintenance of one necessitates the allegation of a fact inconsistent with the maintenance of another, he is bound by his election, and cannot proceed against the other, although the judgment obtained in the first action fails to afford relief. But, after a careful examination of the numerous cases cited in the appellants’ brief, I have failed to find one that holds that, when two or more persons are severally liable to another, by suing one the creditor thereby discharges all the others. The rule is established as to all that class of actions which comes under the head of “ torts,” that one tort feasor is not discharged by an action or judgment against his co-tort feasor. Nothing short of satisfaction for the injury will relieve all the wrongdoers from liability. Livingston v. Bishop, 1 Johns, 290. The same rule is applicable to contracts. If two or more persons are severally liable for the same debt, payment of the debt alone discharges the debtor, and the maintenance of an action and recovery of a judgment against one does not debar the creditor from suing in a separate action others liable for the same debt. In Beymer v. Bonsall, 79 Pa. St. 298, it was held that neither the agent nor principal, when both were liable, would be discharged short of satisfaction of the debt. This case was cited with approval in Cobb v. Knapp, 71 N. Y. 348, the chief justice saying that the commencement of an action against the principal would not be conclusive of an election by the creditor to hold him responsible only. These authorities sustain the judgment appealed from, and it must be affirmed, with costs.

All concur.


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    Gerhard Fortmann, Resp’t, v. George S. Wheeler et al., App’lts.

      Supreme Court, General Term, Second Department,

      Filed February 11, 1895).

    Taxes—Title—Possession op third person.
    The mere fact that a party is in possession at the time of the delivery of the tax deed and asserts an adverse claim, does not render the deed void ; the claim must he under some specific title.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Jesse Johnson, for app'lts ; W. I. Taylor, for resp’t.
   Brown, P. J.

This was an action of ejectment to recover possession of lands in the city of Brooklyn, described as lot 21, in block 155, on the assessment map of the twenty-fourth ward, for unpaid taxes. The land was sold under the arrears act (chapter 114, Laws 1883), and purchased by the plaintiff by a deed executed by the mayor and comptroller of the city on December 12, 1892. The plaintiff to establish his title, introduced in evidence a deed from the registrar of arrears to the city, dated March 24, 1892, and a deed from the mayor and comptroller of the city to himself, dated December 12, 1892, and rested his case. The defendants put in evidence deeds showing title in Nancy B. Wheeler in 1884, and it was admitted that the appellants were in possession of the premises, as devisees of said Nancy B. Wheeler under her will and the deeds aforesaid, at the time of the delivery of the deed to the plaintiff. The appellants ask a reversal of the judgment upon two grounds : (1) That the recitals in the deed of the registrar of arrears are not evidence of the city’s title; and (2) that the deed to the plaintiff w,as void for the reason that, at the time of its delivery, the property was held adversely by the appellants.

The last proposition was decided adversely to the appellants’' contention in Jackson v. Kane, 1 Johns. Cas. 153; Jackson v. Graham, 3 Caines, Cas. 188 ; Hubbell v. Weldon, Lalor, Supp. 139. In those'cases it was held that, under a valid tax sale or sale on execution, the owners or occupants would, after the sale,, be regarded as holding in subordination to the title of the purchaser. The mere fact that a party is in possession, and asserts an adverse claim, does not render a deed void. The claim must be under some specific title. Crary v. Goodman, 22 N. Y. 170. The only title which the appellants had was that derived under the will of Nancy B. Wheeler. But that was the same title which the plaintiff had purchased. The parties did not, therefore,' claim under adverse titles, but both claimed the same title, and, if the proceedings in reference to the tax wére valid, that title was vested in the plaintiff, ’and appellant’s possession was subordinate to it. The arrears act provided that a purchaser at the tax sale “shall take a good and sufficient title in fee simple absolute to the property sold, of which the said deed shall be presumptive evidence.” Laws 1885, c. 163, § 1. The legislature had the right to give this character, as evidence, to the deed. Curtiss v. Follett, 15 Barb. 337-343 ; Johnson v. Elwood, 53 N. Y. 431-435. The burden of disproving the authority of the registrar of arrears to deliver the deed was therefore upon the appellants.

The provision in the arrears act does not differ in substance from that contained in the act of 1850 (chapter 183), or in the act of 1855 (chapter 427), or the act of 1893 (chapter 711). The title conveyed by a deed from the comptroller of the-state for land sold for taxes is now, by the latter act, declared to be “an absolute estate in fee simple,” subject only to claims of the state for taxes, and the deed is made “presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the lands sold and that all notices required by law to be given previous to the expiration of time allowed by law for the redemption thereof, were regular and in accordance with the provisions of law relating thereto.” Statutory provisions of this character, making tax deeds presumptive evidence of the validity of the purchaser’s title, have uniformly been held valid. See Black, Tax Titles, c. 33, and cases cited.

The point that it was incumbent on the plaintiff to prove the authority of the city to purchase- the land cannot -be sustained. Such authority, made dependent, as it was, upon the determinatian of the mayor, comptroller, and corporation counsel, will be presumed. It was expressly conferred by statute, and, when an official act has been performed in a manner substantially regular, the courts will presume that the conditions for its validity have been fulfilled. Wood v. Morehouse, 45 N. Y. 376.

The judgment must be affirmed with costs.

All concur.


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    Farmers’ Loan and Trust Company, Resp’t, v. Equity Gas-Light Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Corporation—Mortgage.
    A corporation may give a purchase-money mortgage, without the consent of the stockholders.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    Tracy, Boardman & Platt, for appl’t; Turner, McClure & Rolston, for resp’t.
   Dykman, J.

This is a motion for a new trial made in the first instance at the general term under the provisions of section 1001 of the Code of Civil Procedure. The action was brought by the plaintiff as trustee under a mortgage made to it by the defendant, dated July 1, 1891, and a supplemental mortgage, dated December 8, 1891, given to secure the issue of bonds of the defendant aggregating $1,000,000. The defendant was incorporated in the month of January, 1874, under the act of February 16, 1848, being chapter 37 of the Laws of 1848, as amended by subsequent acts. On the 18th day of November, 1890, the defendant entered into a construction contract with the Equity Gas Works Construction Company. The contract provided, among other things, that the construction company should convey to the gaslight company a plot of land in the city of Brooklyn, upon which it should erect gas tanks, engines, engine houses, coal sheds, and should lay mains, and furnish tools, etc.; and in return therefor the defendant should execute a mortgage to the Farmers’ Loan & Trust Company to secure the sum of $1,000,000, and deliver bonds secured thereby to the construction company to that amount, and should also deliver to the construction company $1,000,000 of its capital stock. Such stock, at the time of the contract, amounted to $2,000,000, and the defendant had under its control the sum of $1,900,000 of such capital stock. It agreed by such contract, among other things, that it would not issue the remaining $100,000 until the completion of the contract. It appeared from the evidence upon the trial that work was immediately commenced under the contract, agreements were entered into with subcontractors for the performance of the work, and a large amount of money was expended day by day; that the •work ,was pushed on with great energy, and finally completed, so far as the gaslight company permitted such completion. The deed of the real property was made and delivered to the defendant by the construction company, and was offered in evidence upon the trial. It appeared that all the property covered by this mortgage was transferred by the construction company to the gaslight company. In pursuance of the contract, the defendant made a mortgage to the Farmers’ Loan & Trust Company, dated July 1, 1891, for $1,000,000, and the bonds secured by that mortgage, being the entire issue, have been certified and delivered to the plaintiff, as follows: $750,000 of them directly to the construction company, and $250,000 of them to Trask, who is and was at the time the president of the gaslight company. The other bondholders have raised some question as to the right of Trask to insist that those bonds'are entitled to the security of the mortgage in question, and, in framing the judgment entered herein, provision has been made to decide whether these bonds are entitled to the lien of the mortgage. There are many reasons why this motion should not prevail, and why the judgment should be affirmed. The mortgage in question is a purchase-money mortgage, and such mortgages may be issued by corporations without the consent of stockholders. The property covered by the mortgage was conveyed to the gaslight company by the construction company under an agreement that the mortgage should be executed and the bonds issued and delivered to the latter company. That agreement was made before the statute of 1891, which requires the assent of stockholders to the issuance of a mortgage, and that statute is therefore inapplicable to this case. Moreover, a court of equity will not permit the successful interposition of the defense here attempted, even assuming all that is claimed by way of defense to this action. No court will permit the defendant to retain the vast property it occupies, with all the benefits of its purchase, and at the same time repudiate its liability for the purchase price, or, what is the same thing, its liability under the mortgage in question. The motion should be denied, with costs.

All concur.