author: Bockes, J.:

text:
    WYATT C. GILLESPIE and others, Respondents, v. CALDEN B. FORREST, Jr., Appellant.

      Obstruction of stream — one or more owners injured by, may join in an action to restrain it.

    The defendant placed piers in tlie bed of a stream running1 through his land, and thereby obstructed its natural flow and caused the water to set back upon the lands adjoining the stream further up. This action was brought by several of the owners of seiiarate parcels of the lands, upon which the waters were so set back, to abate the nuisance and restrain the further continuance thereof.

      Held, that the several plaintiffs properly joined in bringing one action, and that it could be maintained.

      Held, further, that the fact that the defendant’s piers were not further out in the stream than wore the abutments of an old bridge immediately above them, which had stood thus for twenty years, and been but recently removed, did not affect the plaintiffs rights to have the piers removed.
    Appeal from a judgment in favor of the plaintiffs, entered upon tbe trial of this action by the court without a jury.

      M. M. Mead, for tbe appellant.

      8. O. Keeler, for the respondents.
   Bockes, J.:

The action was brought to abate an alleged nuisance, and to restrain its continuance and threatened enhancement by the defendant. The alleged nuisance consisted in an interruption of the natural flow of Catharine creek, through the village of Havanna, in the county of Schuyler. The obstruction complained of was an erection, by the defendant, of a pier or several piers, on his land on the margin of the creek, and, as was charged, within the line of the creek, and about fourteen feet into the bed of the stream, whereby its natural flow was impeded, and its waters were set back upon the plaintiffs’ premises to their great injury. It was also charged that the defendant threatened to erect other piers, to be similarly placed within the bed of the stream, and to maintain them with those already erected. The case was tried before a justice of this court, without a jury, and judgment was awarded against the defendant, who was directed to remove the obstructions erected by him, and an injunction was awarded restraining him from erecting any others within the bed of the stream, beyond a line specified in the findings and judgment. The plaintiffs, four in number, were separate owners of lots situated upon or contiguous to the stream above the alleged obstructions ; and it was charged in the complaint, in substance, and it was found by the judge as a fact, that the interruption of the flow of the creek, by the defendant’s erections, injured their property respectively, and that those- threatened to be erected would, if built, increase the injury, inasmuch as those already erected prevented the free passage of the waters of the creek, and caused them to set back upon their premises.

The objection is taken that the action cannot be maintained by the plaintiff’s jointly, because of their separate and individual ownership of the premises, alleged to be injured by the acts complained of; and that the damages sustained by them, if any, did not accrue to them jointly, but to each separately. No damages were here awarded ; but the objection above suggested is not well taken. The following authorities show that the plaintiffs', although separate owners of the premises, charged to be injured and threatened with injury, might join iu an action to abate the nuisance, and fo_ an injunction to prevent its enhancement and continuance. (Belknap v. Trimble, 3 Paige, 577; Oakley v. The Trustees, 6 id., 262; Catlin v. Valentine, 9 id., 575; Cady v. Conger, 19 N. Y., 256; Milhau v. Sharp, 27 id., 611; Peck v. Elder, 3 Sandf. S. C. R., 126; note on page 129.) These cases are all precedents for this action by the plaintiffs, although owning separate premises. In the note last cited, the chancellor is reported as saying that “ the objection that different persons owning sepa rate tenements, which are injuriously affected by a nuisance, cannot join in a suit to restrain such nuisance, is untenable.” Ho adds : “So far as the bill seeks merely to restrain by injunction, a nuisance which is a common injury to each and every of the complainants, there is no good reason why they should not all be permitted to join in one .suit, instead of multiplying cases by bringing several distinct suits.

Several plaintiffs may not join in one suit against a defendant for matters and claims entirely distinct and disconnected ; but it is otherwise, where plaintiffs have a common interest centering in the point in issue, and when one general right'by all is claimed by way of relief in the action. This action belongs to the latter class. The plaintiffs’ claim alike that the obstructions created a nuisance to their injuiy, and all alike demand its abatement. The action in Cady v. Conger was brought by Cady, who sued as well on his own behalf as of all others having similar interests. (Remarks of Johnson, J., on page 261) ; and the judgment awarded by the General Term (page 257, near bottom), directing an abatement of the nuisance and awarding an injunction against its continuance, was affirmed by the Court of Appeals. A similar judgment is awarded in this case.

It is also urged that this action cannot be maintained by the plaintiffs, for the reason that the nuisance complained of is a public nuisance, and alike injurious to all the inhabitants of the village. But according to the complaint and the findings of the learned judge, these plaintiffs have sustained and may sustain, if the nuisance complained of be continued, special, particular and individual damage therefrom. The rule of law on this subject is stated by Judge Denio in Doolittle v. Sup. of Broome Co. (18 N. Y., 160). The learned judge says, “ common or public nuisances, whieh.are such as are inconvenient or injurious to the whole community, in general, are, as all are aware, indictable only, and are not actionable, * * * as this sort of injury, if actually committed, can only be redressed by a public prosecution, so where it is only threatened, the preventive remedy by injunction can only be sought in the same manner.” lie adds : “ Where the act complained of or which is apprehended, besides being a public nuisance, is specially injurious to a private person, he may maintain an action or a bill for an injunction in his own name.” This is the settled doctrine of the law. (Corning v. Lowerre, 6 Johns. Ch., 439; The H. R. R. R. Co. v. Loeb, 7 Rob., 418; Milhau v. Sharp, 27 N. Y., 611; Lansing v. Smith, 4 Wend., 9, 10; Dal. and H. C. Co. v. Lawrence, 9 N. Y. Sup. Ct. [2 Hun, 163], 195.) Judge Sjgldek says in Milhau v. Sharp, 625 : “It is not an available objection to actions of this nature, that the wrong complained of constitutes a public nuisance, provided the plaintiffs are subjected by it to any special injury, not common to the public, or to large classes of people.” But the act and acts here complained of and threatened do not constitute a public nuisance like obstructions in a public highway, or in a navigable stream. It docs not appear that the creek, the natural flow of which is charged to have been impeded, and likely to be impeded, is a navigable stream. In theory, and viewed also in the light of the findings of the judge, the action seems to have been well brought. According to the averments, which are sustained by the proof and the findings of' the judge, the plaintiffs’ wore the owners of their lots, respectively referred to in the complaint, and the defendant was also owner of.' the premises on which the obstructions were alleged to have been erected by him. (Fish v. Dodge, 4 Denio, 311.) The action was, therefore, well conceived in these regards.

The principal question in the case now remains to be examined, to wit: Whether the acts complained of constituted a nuisance, causing special individual injury to the plaintiffs ? The learned judge has found in the plain! iffs’ favor on this question. The learned judge has found that the erections by the defendant, already made, are, and that those threatened to be built by him, when constructed, will be an obstruction to the natural flow of the waters of the creek, and so will cause its waters to set back upon the plaintiffs’ premises, to their damage. This finding, we think, is sustained by the evidence.

The defendant owned the premises along the stream, at the point and points where he made the erections. They were placed on his own land, but into the stream beyond the line of high-water mark. Thus, the channel of the stream was narrowed by those obstructions, or they were obstructions to the flow of the water which, at times, by reason thereof, and as the proof showed frequently, set the water back to the overflowing of the banks of the creek above on the stream. Every one owning land along the line of a stream may require that its water shall not be impeded in its natural flow. It is their right, that it bo permitted to flow off unobstructed. The language of Judge JoiiNSON, in City of Rochester v. Erichson (46 Barb., 92), may be here adopted as applicable to the case in hand. The learned judge says, in substance, that where the obstruction occupies or is designed to occupy any portion of the bed of the stream, and will naturally and necessarily obstruct the natural flow of the water in the channel, and in this way contribute, in any considerable degree, to the overflow of the banks of the stream, in periods of high-water, it is most clearly a public nuisance, and the right of parties injured thereby to a remedy for its prevention is clear and unquestioned. He adds : “A river like the Genesee ” (of which he was speaking), “flowing through a populous city, subject to sudden and extraordinary additions to its average volume, should be allowed to pass free from obstructions, and its natural channel should be guarded with extraordinary vigilance against encroachments, and the law should lend freely all its power to prevent or remove every real encroachment when made or attempted. The mischiefs of an overflow, under such circumstances, are not easily measured, and may justly be said to be irreparable.” These remarks have direct application to the case in hand, and are reasonable and just in sentiment. (See, also, Bellinger v. The N. Y. C. R. R. Co., 23 N. Y., 42.) The defendant cannot justify on the ground that his erections were on his own land, so be it, that they constituted an obstruction to the natural flow of the stream.

But it is said that the erections by the defendant were no further out in the stream than was the abutment of the old bridge, immediately above them; and that such abutment had been permitted to remain as built for a period exceeding twenty years. This abutment, however, as it seems, was improperly placed ; and on building the new bridge the stream was relieved from the obstruction and restored to its rightful and proper channel. The defendant could gain no right by this wrongful occupation of the bed of the stream by another or others, however long it might have been permitted. The issue, to be met and answered by the defendant, was whether his erections were Within the bed of the stream, and did they impede its natural flow to the injury of the plaintiffs. Doubtless the removal of the abutment of the old bridge brought the defendants erections more prominently into the case as an obstruction, in the stream. Before its removal the erections, perhaps, were not or would not have been a serious obstacle to the flow of the water. But the defendant could not insist upon its continuance as a protection to his wrong doing, nor claim protection now for his interference with the stream, because of its former existence. The defendant had gained no prescriptive right, nor any right to interfere with the waters of the creek, because of the position of the old bridge abutment.

It seems to follow that the defendant claimed to exercise an unlawful privilege injurious to the plaintiffs. This gave them a right of action ; and the relief granted at Special Term was the appropriate relief.

The judgment-should be affirmed, with costs of appeal.

LeaeNed, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Bockes, J. : Boardman, J. :

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK AND CANADA RAILROAD COMPANY, Respondent, v. WILLIAM HUTTON and others, COMMISSIONERS, ETC., OF THE TOWN OF PUTNAM, Appellants.

    1867 — chapter 874, section 2 — affidavit of an assessor in town bonding proceedings — not conclusive, but sulyect to impeachment — The taxpayers may impose conditions.

    Proceedings to bond a town in aid of the construction of a railroad having been instituted, the county judge appointed McArthur, Easton and Hutton commissioners, to procure the requisite consents and take the necessary irroceedings; McArthur having refused to accept, one Meiklejohn was appointed in his place. The consents of the taxpayers, required by the statute, were contained in three separate papers, two of which consented that McArthur, Easton and Hutton might subscribe for the stock and issue the bonds; and one that Easton and Hutton might do so. The stock was, in fact, subscribed for by Meiklejohn, Easton and Hutton.

      Held, that the taxpayers might, in giving their consent, impose certain conditions, compliance with which was essential to the validity of the subscription for the stock.
    That the consents given in this proceeding did not authorize a subscription by Meiklejohn, Easton and Hutton.
    Section 2 of chapter 874 of 1867, provides, that the fact that the requisite number of taxpayers have signed the petition “shall be proved by the affidavit of one of the assessors of such village or town, indorsed upon or annexed to such consent in writing, and filed and recorded with said consent; and the original consent and affidavit, or a copy thereof, certified by the clerk of the county in whose office it is required to be filed, shall be legal evidence of the facts contained therein, and shall be admitted as such in any court of this State, and before any judge or justice thereof.”

      Held, that the statute did not render such consent and affidavit incontrovertible and conclusive evidence of the facts therein stated and recited, and that they were but prima fade evidence of such facts, and were open to rebuttal by competent proof and to impeachment for falsity.
    Appeal from a judgment in favor of the relator, entered upon the trial of tbis action by the court without a jury.
    The action was brought to compel the defendants, by mandamus, to issue to the relator certain bonds of the town of Putnam, in aid of the relator’s road.
    The principal question in the case was as to the effect of what purported to bo the consent of a majority of the taxpayers to the issue of the bonds, and the affidavit of one of the town assessors thereto annexed.
    Section 2 of chapter 874 of 1867, under which the proceedings were had, provides, among other things, as follows, viz. : “Provided, however, that no subscription to stock shall be made, or bonds issued as aforesaid, until the consent in writing, specifying the amount of such subscription and bonds to be issued, be first obtained of a majority of the taxpayers (or their legal representatives) appearing upon the assessment-roll of such village or town for the year 1866, representing a majority of the taxable property therein, which consent shall be proved or acknowledged in the same manner as signatures to conveyances of real estate, and shall be filed and recorded in the clerk’s office of the county in which the said village or town is situated, which fact that a majority of the taxpayers have so consented shall be proved by the affidavit of one of the assessors of such village or town, indorsed upon or annexed to such consent in writing, and filed and recorded with said consent; and the original consent and affidavit, or a copy thereof certified by the clerk of the county in whose office it is required to be filed, shall be legal evidence of the facts contained therein, and shall be admitted as such in any court of this State and before any judge or justice thereof.”

      James Spencer, for the appellants. .

      Tanner <& Potter, for the respondent.

         See People ex rel. N. Y. and C. R. R. Co. v. Barrett, post p. 206.

   Bockes, J. :

The relators, the New York and Canada Railroad Company, by this proceeding obtained the judgment of the court, awarding a mandamus against the defendants, commanding them as commissioners of the town of Putnam, Washington county, to execute and deliver to such railroad company the bonds of the town to the amount of $12,000, on the delivery to them of the certificate of such company, entitling the town to 120 shares of its capital stock, of the par value of one $100 per share. This proceeding was instituted on the alleged ground that the town was regularly and in due form bound,» by the action of a majority of its taxpayers and of said commissioners, to issue the bonds to aid in the construction of the road ; which action, as was alleged, was taken pursuant to the provisions of the statute in that regard. The commissioners refused to issue the bonds, insisting that the proceedings taken uiiderthestatutefor bonding the town were irregular, informal and void; hence, imposed upon them no obligation to do what was demanded of them. An issue was formed, and after trial before a justice of this court, without a jury, the mandamus asked for was awarded, and judgment thereupon having been entered, an appeal was taken to the General Term. On the part of the defendants it was insisted: (1) That the proceedings taken under the statute for bonding the town, evidenced by the papers presented at the trial, were informal and void on their face ; hence, gave the commissioners no authority to subscribe for the stock, and imposed no obligation upon them to issue the bonds; and (2) if this were otherwise then, that proper evidence was offered on the trial and rejected ; which, if it had been admitted, would have shown that those proceedings were unauthorized by the taxpayers of the town, and wore false in fact and void. It may be well to see precisely how the case stood on the evidence submitted by the relators. The relator relied upon the evidence afforded by the documentary proof (so called) filed and recorded in the county clerk’s office, showing the proceedings taken for the bonding of the town. Those papers were : (1) An application purporting to have been signed by more than twelve persons, representing themselves therein to be freeholders and residents of the town, to the county judge, asking for the appointment of three commissioners, pursuant to the statute, entitled “an act to facilitate the construction of the New York and Canada Railroad Company,” etc.; (2) the appointment by the county judge of Wm. McArthur, George Easton and Wm. Hutton, such commissioners; (3) the declension of McArthur to act as such commissioner ; (4) the application to the county judge for the appointment of a commissioner in the place of McArthur; (5) the appointment of A. G. Meiklejohn in his place ; (G) the consent of various persons representing themselves therein to be taxpayers of the town, whose names appeared upon the assessment roll of the town for the year 1871, consenting that McArthur, Easton and Hutton, as commissioners, might subscribe to the capital stock of the railroad in the sum of $12,000, and that said commissioners might issue bonds of the town therefor ; (7) an affidavit of the assessor of the town attached, to the effect, that he was at the time such assessor, and was such in the year 1871; and that the consent was subscribed by a majority of the taxpayers, representing a majority of the taxable property on the assessment roll of the town for the year 1871; (8) and lastly, a subscription by Easton, Hutton and Meiklejohn, as commissioners, for 120 shares of the stock of the railroad company, with an agreement to pay the company therefor in the bonds of the town. It was admitted that the railroad was completed from Whitehall to Ticonderoga before January 1, 1875, and that the aggregate amount of taxable property, appearing on the assessment roll of the town for the year 1871, was $167,567 ; and, further, that the bonds had been demanded of the commissioners, and that they refused to issue and deliver them. It should bo noted, as it is deemed an important fact, that the consent in writing of the taxpayers above alluded to, and to which the affidavit of the assessor was attached, was given in and by three separate papers ; two of which purported to give consent that McArthur, Easton and Hutton might subscribe for the stock and issue the bonds ; the other purported to give consent that Easton and Hutton might perform those acts. There was no evidence of any consent in writing that Meiklejohn might act in that regard, either alone or with the others named, as commissioners. Numerous objections were interposed by the defendant’s counsel to the admission in evidence of the papers above alluded to, but it is not deemed necessary to notice them in detail. The purport of them was that each paper was informal, unauthorized and void ; hence that the proceedings for the bonding of the town conferred upon them no authority to act as connnis-ers, and put them under no obligation to issue the bonds demanded of them.

The proceedings taken to bond the town were entirely statutory. It is, therefore, only necessary to suggest that all the steps required to be taken by the law were needful to confer authority upon the commissioners to subscribe for the stock and to issue the bonds. The validity and binding force of the proceedings depended on a strict observance of all the requirements of the statute, and they were without authority and void, unless all the provisions of the law, step by step, were complied with in every essential particular. Nothing could be inferred in support of them, but all essentials were to be established by affirmative proof. (The People, ex rel. Rogers v. Spencer, 55 N. Y., 1; The People ex rel. Green v. Smith, 55 id., 135; The People ex rel. Haines v. Smith, 45 id., 772; The People ex rel. Freeman v. Hulburt, 46 id., 110.) In the last case cited, it was laid down that the authority conferred by the act must be exercised in strict conformity -to, and by a rigid compliance with the letter and spirit of the statute. The taxpayers, too, may impose a condition to the subscribing for stock and to the delivery of the bonds, and when a condition is imposed, the commissioners appointed to subscribe for the stock and to issue the bonds are subjected in their action to the condition. (Falconer v. The B. and J. R. R. Co., 69 N. Y., 491.) True, in the case cited, the statute under examination gave permission to the taxpayers to affix a condition. But without such permission being given by law, the taxpayers may affix one which shall be binding, or the affixing of it will render their action void. There can be no good reason why they may not affix a condition without express statutory authority so to do. Certainly, if a condition be affixed, it must be observed, or the authority made conditional upon its observance must be inoperative. Judge Folger says in the case cited: “Here is the grant of power from the taxpayers, through the county judge to the commissioners. It confers nothing more than is expressed, or than is necessarily incident to that which is expressly conferred, or is given by statute law in addition thereto.” These remarks will apply to every case where an agency is created and authority is conferred. If the authority be void because of the conditions, very well. But if recognized as valid, the condition must be observed. So, then, the authority here given by the taxpayers to the commissioners is the basis of their right to act. It is their charier of power. Now, to whom was power hero given by the taxpayers to subscribe for stock and to issue bonds, which should bind the town ? The papers shew on their face that McArthur, who wras originally appointed commissioner, declined to act, and Mciklcjohn was appointed in his place. The commissioners then authorized to act were Easton, Hutton and Meiklejohn, and they, in fact, made the subscription for the stock, and agreed for tbe town to issue the bonds therefor. But the consent given by the taxpayers to perform these acts in behalf of the town was not given to them. The consent, as evidenced by two of the papers, was that McArthur, Easton and Hutton might act for the town in that behalf; and by the other paper, the authority was conferred by the consent of the taxpayers who subscribed it, upon Easton and Hutton only. There was no evidence of any consent given by any taxpayers that Meikle-john might join with Easton and Hutton in the acts by wddeh the town was to be bound. The authority to bind the town rested upon the consent of the taxpayers, and such consent conferred no authority, save as it was exercised in conformity with the terms of the consent. The same rule would apply here, as in the case of a condition attached to a power conferred in ordinary cases, certainly with equal, if not with greater force. So the subscription by others than those authorized to make it, and their agreement to issue the bonds of the town, for the amount subscribed, were without authority and void.

But there is another ground of error which would require a new trial, even if the difficulty above considered, and all others urged against the papers for defects appearing on their face, were out of the way. The defendants on the trial offered evidence to impeach the documentary proof (so-called) put in on the part of relator ; this evidence was rejected ; the court holding in effect that such documentary proof was conclusive of the facts therein recited, and stated that such evidence could not be contradicted or impugned. This ruling was, as wo think, erroneous. The law, it is true, declares that the consent of the taxpayers with the affidavit of the assessor indorsed thereon or annexed thereto, when duly acknowledged, filed and recorded in the clerk’s office, “ shall be legal evidence of the facts contained therein, and shall be admitted as such in any court of the State, and before any judge or justice therein.” This provision was introduced for the purpose of avoiding the necessity of proving the contents of the papers by oral or common law evidence. Were it not for this provision the rule laid down in Starin v. The Town of Genoa (23 N. Y., 439), and in The People v. Mead (24 id., 114; also, 36 id., 224), would prevail. The ruling in Starin's Case was that an affidavit made, filed and recorded, as was the affidavit in this case, was not evidence of the requisite consent, in the absence of a provison of law. making it such. Judge Grover says, in The People v. Mead (36 N. Y., 229), that the affidavit must, in accordance with the decision in Starin’s Case, and in The Peoples. Mead,’be regarded as furnishing no evidence of itself of the requisite assent of the taxpayers of the town. But in the case in hand there is a provision of law making the consent, with the assessor’s affidavit indorsed or annexed, when duly acknowledged, filed and recorded, “legal evidence of the facts contained therein, ‘to be’ admitted as such in any court of this State, and before any judge or justice thereof.” But, by making the papers legal evidence of the facts contained therein, the law did not make them indisputable and conclusive evidence of such fact. They were to be admitted as legal evidence. Thus they were raised by law to the dignity of presumptive evidence, but like ordinary legal evidence they were open to contradiction and impeachment for falsity. In The People ex rel. Martin v. Brown (55 N. Y., 180) the law, as in this case, made the consent of the taxpayers with the assessor's affidavit, indorsed or annexed, when acknowledged, filed and recorded in the proper clerk’s office, “ evidence of the fact therein contained,” to be “admitted in evidence in any court of this State, and before any j udgo or justice thereof.” It was there held per AlleN, J. that the provisions of law did not make the evidence conclusive. While Judge AlleN gave a dissenting, opinion, his reasoning and conclusions on the point here under examination were not controverted or impugned by any member of the court. The reasoning of the learned judge, and his citation of authorities, leaves nothing to be added in vindication of his conclusion. The town should not be concluded by a false record by whomsoever made up. This would bo contrary to natural justice. A judicial record imparts absolute verity only, after jurisdiction has been shown both of the person and subject-matter. In such case the parties have had, or are deemed to have had, their day in court, and then they are concluded by the record in all collateral actions and proceedings wherein the matters determined thereby may come in question. But it is a doctrine applicable to all legal proceedings against persons, property and municipalties, that a want of jurisdiction in a court or officer may be shown to invalidate them. So it was «aid in Adams v. The S. and W. R. R. Co. (10 N. Y., 334), that when the party “ offered to show by evidence that the ‘ record was untrue, * * * and that the recitals contained therein were false, the learned justice who tried the cause should have received the evidence.” It was laid down in The Chemung Bank v. Judson (8 N. Y., 254) that the jurisdiction of any court exercising authority over a subject may be inquired into in any court, where the proceedings of the former are brought by a party claiming the benefit of them. The authorities are numerous to the effect that jurisdiction is alwaj’s open to inquiry. As regards special proceedings, like this now under consideration, when the authority to take them is special, being expressly given and limited by statute, they are open to attack for any non-observance of the provisions of the law on which they depend for support; and especially may the evidence submitted to support tlieir integrity bo impeached for falsity. The case then, in this view of it, becomes analogous to that wherein a challenge of a judicial record for want of j urisdictiou is interposed. I am aware that Judge Grover said, in The People ex rel. Yawger v. Allen (52 N. Y., 540), that the affidavit of the assessor, in a case like this, ivas in the nature of a judgment or decision determining the existence of a fact. But that learned judge in The People v. Mead (36 N. Y., 229) yielded his assent to the ruling of the court that the affidavit was not conclusive of the facts sworn to in it. It may be noted that Judge Grover does not say in The People v. Allen that the affidavit is in effect a judgment or decision, and conclusive of the facts stated in it; only that it is in the nature of a judgment. In the later case of The People ex rel. Marlin v. Brown (55 N. Y., 180) Judge AlleN saj^s, in speaking of the operative effect of the affidavit, that although the question had been incidentally before the court, yet in no case had it been held that the affidavit was under all circumstances conclusive and incontrovertably evidence of the fact stated therein, except in the single case of The People ex rel. A. and S. R. R. Co. v. Mitchell (35 N. Y., 551), and then under a statute which declared that such proof should be valid and conclusive in all courts and for all purposes. The decision in Pierce v. Wright (6 Lans., 306) is in conflict with the cases above cited in the Court of Appeals, and was decided before the decision in The People ex rel. Martin v. Brown appeared or was made. The same „ may be said of the decision in The People ex rel. Akin v. Morgan (65 Barb., 473), and also in Corwin v. Campbell (45 How. Pr., 9). In this connection it may be suggested, too, that if the affidavit be an adjudication, then the assessor must be protected against perjury in making it, although it be false in every particular, and made by him with knowledge of its falsity ; for it is the settled rule that one who acts judicially under authority of law cannot be made answerable either civilly or criminally for his judicial determination, however erroneous it may be, and however malicious the motives which produced it. The only remedy in such case is by impeachment. Still if the affidavit be considered as a judgment, it may then be assailed for want of jurisdiction. But we are of the opinion that the case only presents the question, whether by the statutes the papers were made more than “ legal evidence,” more than prima facie evidence of the facts stated in them; that they were so mad e¡ prima facie evidence is manifest from a fair reading of the law. It provides that, when acknowledged., filed and recorded, they shall be evidence to be “admitted as such in any court of the State, and before any judge or justice thereof;” “that is,” admitted like any other legal evidence, with like force and effect. The statute does not declare that they shall be incontrovertible and conclusive evidence. If this had been intended, it is but fair to assume that it would have been so expressed. In other statutes where this was intended, it has been so expressed; and here again I would call attention to the reasoning of Judge Allen in The People ex rel. Martin v. Brown (55 N. Y., on page 195), again suggesting that his remarks seem unanswerable, and for aught that appears to the contrary were satisfactory to every member of the court. In conclusion, we are of the opinion that the documentary proof (so called) introduced by the relator was not incontrovertible and conclusive evidence of the facts therein stated and recited, but afforded but prima facie evidence of such facts, and were open to rebuttal by competent proof, and to impeachment for falsity. The contraxy ruling by the learned judge on the trial was, as wo think, erroneous, In view of this conclusion, as well as of that reached on the point first above considered, there must be a new trial.

Judgment reversed; new trial granted; costs to abide the event.

Boardman, J. :

In this direct proceeding, on the part of the railroad company against the town to compel the issuing of the bonds, I do not think the assessor’s affidavit is conclusive; but evidence should have been allowed to impeach its verity, to show irregularities, to establish fraud, mistake or corruption. As between these parties in this proceeding the affidavit may be attacked, and, if possible, overcome. In rejecting such evidence I think there ivas error, for which a new trial should be granted, and, therefore, concur in the result of the foregoing opinion.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment reversed; now trial granted; costs to abide event.


text:
    DANIEL D. BELL AND LUCAS KROM, Jr., Appellants, v. OSCAR VERNOOY AND JOHN E. VAN ETTEN, Respondents.

      Relationship of judge to parties — ■ does not invalidate an order of reference entered by consent.

    When an action pending in the county court is called for trial, and it is, by the consent of the parties, sent to a referee to hear and determine, the fact that the county judge is disqualified from sitting by reason of relationship to one of the parties does not render such order void, or the judgment entered upon the report of the referee invalid.
    Appear, from a judgment dismissing the complaint, entered upon the report of a referee.
    In 1868 the defendant, Oscar Yernooy, brought an action in a justices’ court against these plaintiffs and one Meeker Gorham (who was also one of the original plaintiffs herein, but who has died pending this suit), to recover the amount of a promissory note given for money lent. Judgment was obtained by the plaintiff, and the d efendants in said j udgment appealed to the County Court of Ulster county. The cause, when there reached in its order upon the regular call of the calendar, was, by consent in open court, referred to Howard Chip, counselor at law, to hear and decide, and the clerk entered the order reciting such consent. Six hearings were had before the referee, at all of which the defendants, without objection, attended in person and by counsel.
    The referee made his report in favor of Vernooy, the plaintiff in said action, on which judgment was entered. 'This action was brought to declare the said judgment void, on the ground that the order of reference entered by consent in open court was void because the county judge, who presided at that time, was related by affinity to Lucas ICrom, jr., one of the parties, within the ninth degree (the exact degree being the eighth degree).

      J. V. V. Kenyon, for the appellants.

      Van Etten do Clearwater, for the respondents.
    No order of reference was necessary after the parties had submitted themselves to the jurisdiction of the referee and tried their cause upon its merits before him without objection. They are concluded upon the principle of waiver and estoppel, (Laycroft v. Fowler, 7 How., 259; Keator v. The Ulster and Delaware Planhroad Co., 7 id., 41; People v. McGinnis, 1 Parker, 387; Ubsdell v. Root, 3 Abb., 142; Hayes v. The People, 25 N. Y., 396; Scudder v. Snow, 29 How., 95; Dayharsh v. Enos, 5 N. Y., 531; Quinn v. Lloyd, 7 Rob., 157 ; Greasan v. Keteltas, 17 N. Y., 491 ; Eggleston v. Smiley, 17 John., 133; People v. Brennan, 3 Hun, 666; Marcy v. Nelson, 62 N. Y., 638; Whalen v. The Board of Supervisors of Albany, 6 How., 278; Bingham v. Disbrow, 37 Barb., 24; Harris v. Bradaham, 18 John., 26; Budding. Chapin, 53 Barb., 488; Diddell v. Diddell, 3 Abb., 167, and authorities collected in a note to that case.)
   Bockes, J.:

The record in the County Court was in due form, and established an apparent lien upon the plaintiffs' real property. Passing the point that the relief sought in this suit might have been obtained by motion in the County Court, and admitting- that this action was well brought in theory to remove the lion, inasmuch as the proof necessary to establish its invalidity was de hors the record, then wo are of the opinion that the facts relied on to support it are insufficient to effect that result. The invalidity of the judgment entered in the County Court is put upon this ground : That such judgment was based on an order of reference which was void, inasmuch as the judge of that court, which Avas in session at the time the order was entered, Avas disqualified by the statute from acting in the suit by reason of his relationship to one of the parties. It appears that the order of reference was by consent of parties to the action. The judge, therefore, exercised no judicial function on its entry. Consent to the oi’der being given by the parties to the action, its entry upon the record Avas matter of course. A formal approval even, by the judge, was not necessary to its validity. The order would have been valid, entered out of term on the Avritten stipulation of the parties. (Code, § 270.) In this case there Avas in effect a waiver, of a formal written stipulation. Parties Avill be held to such waiver, after having recognized the order by going to trial before the referee named in it without objection, and they Avill thereafter be estopped from denying its validity. (Note to Diddell v. Diddell, 3 Abb., 167, 171, and cases there cited; also Scudder v. Snow, 29 How., 95; Quinn v. Lloyd, 7 Robt., 157; Greason v. Keteltas, 17 N. Y., 491; Macy v. Nelson, 62 id., 638; Bingham, v. Disbrow, 37 Barb., 24; Bucklin v. Chapin, 53 id., 488.) This was not an ex parte order, if indeed that would have made any difference after trial without objection ; but the case is the same as if the parties were all present and joined in the entry on the record. If a party actually draws up an order and himself enter it upon the record, Avould he not be deemed to have consented in writing to the order ? Would not such action be deemed equivalent to a stipulation, in writing, on his part, to its entry ? The order, in terms, declares his consent in such case. Noav, in this case, the clerk in entering the order acted for the parties and, as Ave may presume, in their presence. His action was their action, and thus by the order itself reciting their consent; there was in point of fact a consent in writing by the parties actually entered in the record. The judge performed no judicial duty or act. None was required of him by law ; and even although this action was taken by the parties, while the court was in session, it was well and properly done by them without aid from the judge. His consent or sanction was quite unnecessary to its regularity and validity. If valid without his sanction, his approval of the order would not render it invalid. Stress is laid on the fact that the order is entitled “ at a court held, etc. Present • — • lion. A. SchooNMaker, jl*., county judge.” But the entitling constituted no part of the order and may be disregarded. (In the Matter of the Knickerbocker Bank, 19 Barb., 602; Dresser v. Van Pelt, 15 How., 19, 25.) At most it would show only that it was entered while the court ivas in session. Yet, as has been remarked, this fact would not in any way effect an order entered, as this one might have been, out of court on stipulation. The case is not brought with in the purview of the statute, which declares that no judge of any court can sit as such in any cause in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. The judge decided nothing in the action, nor did he select the referee who tried and determined it. The referee was chosen by the parties themselves, and was by them brought in to adjudicate upon and to determine their rights in the way authorized by law.

It is further urged, on the part of the respondent, that this action cannot be maintained, inasmuch as complete and appropriate relief, if any were needed, could have been attained in the suit in the County Court by proper application there — another person having succeeded Judge SchooNMaker as county judge. It is not deemed necessary to consider this point, as the conclusion above reached necessarily leads to an affirmance of the judgment appealed from, and the judgment should bo affirmed, with costs.

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


author: Bockes, J. :

text:
    JOSEPH HETTENBACH, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      City of Albany — chap. 77 of 1870 — power of the common council to pass ordinances as to the inspection of weights and measures — enforcement of.

    Subdivision 29 of section 12, title 3, chapter 77 of 1870, authorized the common council of the city of Albany to make ordinances “ in relation to the inspection and sealing of weights and measures, and enforcing the keeping and use of proper weights and measures by vendors.”

      Held, that it only authorized the inspection and sealing of weights and measures used by vendors, and was not applicable to scales used by defendant at one of its grain elevators.
    That as said section 12 provided for the enforcement of the ordinances thereby authorized, by penalties, the common council was precluded from adopting any other mode for their enforcement.
    Appeal from, a judgment of the County Court of Albany county, affirming a judgment in favor of the plaintiff rendered by a justice of the peace.
    The plaintiff was inspector of weights and measures for the city of Albany up to May, 1878. He complained against the defendant for work, labor and services as such inspector in inspecting the scales of the defendant.
    It was proven that the defendant was not engaged in selling merchandize at all. It had an elevator where it stored grain, and the scales which were inspected were some of them used in weighing grain at the elevator, and some in weighing freight. The first section of chapter eight of the ordinances of the city of Albany provided, among other things, as follows : “And the said inspector may sue and prosecute for his services performed under this law in an action in his own name.”

      Matthew Hole, for the appellant.

      Frank Katnpfer, for the respondent.
   Bockes, J. :

The authority for the ordinance, passed by the common council is conferred by that provision of the city charter (title III. sect. 12, chap. 77, Laws of 1870, page 168) which gives that body “ power to make such ordinances, and with such penalties in the matter and for the purposes following,” among others : “In relation to the inspection and sealing of weights and measures, and enforcing the keeping and use of proper weights and measures by vendors.” (Sub. 29, sec. 12, supra.) Now, is not this subdivision of section 12 confined or limited in its application to “ vendors ? ” It is quite evident that it was not intended to have reference to, and to embrace persons or families who might keep weights and measures for their individual and private use. Due regal’d for personal and private rights forbids such construction ; and as to the last clause of the subdivision there is an express limitation to vendors. So, as to this class of persons authority was given to the common council to pass an ordinance, having in view the “ enforcing ” of the keeping and use by them of proper weights and measures — that is, that body, by proper ordinance, might compel “vendors” to keep and use “ proper weights and measures.” Thus, it is seen that the authority of the common council as to the keeping and use of weights and measures was limited to “ vendors.” But a broader signification is claimed for the preceding clause of subdivision 12. That clause relates to •the “ inspection of weights and measures,” and, as is insisted, is not limited, like the latter clause of the subdivision to “vendors.” There is no sound reason why this clause should be unlimited, and the latter clause be limited, as it is, to “vendors.” The two clauses are grammatically connected, as if to be read together, as applicable to a single subject, and to carry out a single purpose. The last clause must also have reference to the prior clause, which has in view “the inspection and scaling of weights and measures,” for without inspection it could not be determined that the proper weights and measures were or were not kept and used. Thus section 12, subdivision 29 has in view an ordinance which shall relate to the inspection and sealing of weights and measures, and the enforcing of the use of weights and measures so inspected and sealed. It follows, therefore, that the fair meaning of the entire provision of law is this : That the common council might, by an ordinance, provide for the inspection and sealing of weights and measures kept and used by vendors, and also for the enforcing against them the keeping and use of proper weights and measures — that is, weights and measures which had been inspected and sealed. It is unreasonable to suppose that the law contemplated two classes of cases — one as to the inspecting and sealing in all cases where weights and measures might be kept and used, and by whomsoever kept and used, the other the enforcing against vendors only, the keeping and use thereof. Therefore, according to the fair reading of the subdivision, it is limited in its application to “ vendors.” The defendant was not a “ vendor,” hence the common council had no authority to make an ordinance which would compel it to pay for services for which the recovery in this case was allowed.

Again, section 12 provides for the enforcement of the ordinance thereby authorized, by penalties. They could, therefore, be enforced, even when lawfully adopted, in no other way. They could be enforced by no other means than by those given by the law. (Hart v. The Mayor, 9 Wend., 571, 588, 606.) This rule was early laid down by Lord Mansfield, in Kirk v. Nowill (1 Durnf. & East, 118, 124), and it has always been recognized as entirely sound. The general proposition of law is, that where a municipal corporation is empowered to enforce its ordinances in any prescribed manner, it is by implication precluded from adopting any other mode for its enforcement. In this view of the case the judgment appealed from is unauthorized.

The judgment of the County Court and of the justice must be reversed, with costs.

LearNed, P. J., and Boardman, J., concurred.

Judgment of County Court and justice of the peace reversed, with costs.


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    FREDERICK BLODGETT, Appellant, v. JAMES A. RACE, Respondent.

      Complaint — when insufficient to authorize the issue of a warrant of arrest hy a justice of the peace.

    A written complaint made t)efore a magistrate alleged that certain goods had been stolen, and that the complainant “ has probable cause to suspect, and does suspect, that Frederick Blodgett ” stole them.

      Held, that it was insufficient to justify the magistrate in issuing a warrant for the arrest of the accused.
    Appeal from an order of tbe County Court of Greene county, denying a motion of tbe plaintiff for a new trial, made upon a case and exceptions.
    On tbe 7th day of September, 1874, Luther Bailey presented bis written complaint on oath to the defendant, wherein he alleged that certain goods of the value of more than twenty-five dollars were, on or about the 14th day of April, 1874, at the town of Jewett, Greene county, N. Y., stolen from Division No. 209, of the Sons of Temperance, “ and that the said Luther Bailey has probable cause to suspect and does suspect that Frederick Blodgett, of the town of Jewett, county of Greene afirresaid, did felonously steal, take and carry' away the said goods, chattels and property, in manner and form, and at the time and place aforesaid.” On the same day, at the request of said Bailey, the defendant issued bis warrant for the arrest of said Blodgett, the plaintiff herein,, upon the charge so made in the aforesaid complaint, without any further evidence. The defendant assumed to act in the premises as a justice of the peace. The warrant was delivered to a constable on the day of its issue, who on the same day ai’rested the plaintiff thereon and brought him before the defendant.
    This action was subsequently commenced to recover damages for false imprisonment. The plaintiff was nonsuited on the trial.

      Peck <& Cornell, for the appellant.

      A. O. Cowles, for the respondent.
   Bockes, J. :

A complaint in writing, charging a criminal offence, although on information and belief only as to the person suspected of having committed it, is sufficient' to authorize an investigation before a magistrate by the examination of witnesses. The magistrate on such complaint may issue subpoenas for witnesses, and has jurisdiction of the subject-matter of the offence charged to have been committed, and may compel the attendance of witnesses by attachment in case of disobedience of the subpoena. (The People v. Hicks, 15 Barb., 153.) But before a warrant can lawfully issue for the arrest of the offender the magistrate must have some evidence of his guilt. Facts and circumstances, stated on information and belief only, without giving any sufficient grounds on which to base the belief, are insufficient to confer jurisdiction as to the person. The magistrate must have evidence of probable cause, both as to the commission of the offence and the guilt of the offender, before he can have jurisdiction to cause the arrest. ( Comfort v. Fulton, 39 Barb., 56; Vredenburgh v. Hendricks, 17 id., 179; Wilson v. Robinson, 6 How., 110; Pratt v. Bogardus, 49 Barb., 89; The People v. Hicks, 15 id., 153; Wells v. Sisson, 14 Hun, 267; Carl v. Ayers, 53 N. Y., 14.) It is laid down in Waterman’s Notes to Archbold’s Criminal Practice and Pleadings (vol. 1, 120, marginal page 31) that a warrant cannot be issued against one, if his guilt appears only from hearsay and mere rumor, but that a case of probable guilt,-on the part of the accused, must be made out. If facts and circumstances be stated, sufficient to call for judicial determination, the magistrate will be protected in his action, and this, although he might err in judgment. In such case he is to be fully protected, and the error can only be made available on writ of error or appeal in the action, or proceeding in which the error occurred. As to the case in hand, it seems that the warrant was issued on less proof, even than information or belief, as regards the plaintiff. It was issued on an allegation, only "of “ suspicion and belief” as to the plaintiff’s guilt. No fact or circumstance, whatever, was stated to support the suspicion, even much less to support a conclusion of probable cause against him. The warrant was without jurisdiction, hence afforded the defendant no protection against the charge of an illegal arrest. It is not necessary here to bold that the defendant had no ground for committing the plaintiff after the open public examination was had, It is quite possible, and I think it must be assumed, that there was sufficient evidence given before him to uphold his conclusion to commit. But we do not pass upon that question here. The original arrest, directed by the defendant, was unauthorized, and the nonsuit herein was therefore improperly granted. This conclusion renders it unnecessary to examine other questions raised in the case. Perhaps it should be further remarked that the case, as presented on this appeal, does not appear to be one of serious enormity. The good faith of the defendant, in issuing the warrant, is not denied. The plaintiff was in no way seriously oppressed ; on the contrary, was allowed great liberty after his arrest, and during the examination, and finally submitted to be committed, rather than give bail, which it seems was easily to be obtained. Whether or not the plaintiff may recover more than nominal damages is for a jury to determine. The order appealed from denying a new trial must be reversed.

LEARNED, P. J., and BoardMAN, J., concurred.

Order reversed; new trial granted ; costs to abide event.


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    DAVID CARR AND HARMON A. BLANCHARD, Respondents, v. ELLEN BREESE AND WILLIAM H. BREESE, Appellants.

      Conveyance of propei'ty by husband to wife — when fraudulent as to future ei'editors.

    "Where a husband, engaged in carrying on business, transfers the bulk of his property to his wife, without consideration, and with a view to place it beyond the reach of any future creditors he may have, such transfer is fraudulent and void as to such future creditors, and especially as to those who may trust him, relying upon his ownership of the property, and in ignorance of the transfer made to his wife.
    Appeal by the defendants from a judgment, entered upon the report of a referee.

      In the spring of 1871 the defendant, William H. Breese, sold two houses then owned by him, and purchased another house, taking the title thereto in the name of his wife. The two houses so sold, which furnished the money wherewith to buy the new house, constitutes the bulk of his property. Breese was a saloon keeper, and had been for a number of years, and had bought the greater part of his liquors from the plaintiffs on credit, and continued so to do until he failed in 1875, when he owed them-about $4,267.10.
    This action was brought by the plaintiffs, after the recovery of a judgment against William H. Breese, and the return, of an execution unsatisfied, to set aside the conveyance to his wife as fraudulent.
    I?. A. Parmenter, for the appellants.

      Pcigar L. Fursman, for the respondents.
   Bockes, J.:

The learned referee, on the facts proved before him, applied to the case the sound principle of law, that a husband’s transfer of his property to his wife, without consideration, with a view to place it beyond the reach of his future creditors, was fraudulent as to such creditors, when his purpose by such act was to throw upon the latter the hazard of his future success in business. This just principle has been frequently declared, and it stands upon the same ground as that applied to a fraudulent .transfer of property to defeat the honest claims of creditors existing at the time of the transfer. It is quite apparent that the'husband intended to save his property in the hands of his wife, at the expense of his creditors, in case calamity should come to him in his future business, which he proposed to conduct, and actually did conduct, on credit; and the case shows that his indebtedness increased continually and rapidly from the time his wife took the title until his financial collapse. He turned over to her, by investing her with the title, the bulk of his entire property. He retained title in himself to a very insignificant part of it, or mere fragment of it, which proved substantially, if not wholly, valueless to his creditors as a fund from which they could obtain satisfaction of their claims. Indeed, it is quite manifest that he did not retain even sufficient to satisfy, on compulsory sale, the debt and demand that the plaintiffs then held against him. There was no special reason for having the title to his property turned over to his wife, save to place it beyond the contingencies attendant upon the continuance of his contemplated business. A husband out of debt may make suitable settlement upon his wife from his estate, and when done with no dishonest intent, the wife will be protected in her settlement, against the claims of the future creditors of the husband. But, to invest the wife with title to the husband’s entire property, or with title to very nearly all of it, when in business, intending to continue the business, can bo considered in no other way than as unsuitable and suspicious. It gives reason for a belief of a sinister intent. Had the husband owed the plaintiffs the demand here sought to be enforced, at the time his wife took title to his property, no consideration having been paid by her, the transaction would have been deemed fraudulent in law as against those parties and their claim. Is the property then beyond their reach, simply because the plaintiffs were not then existing creditors ? This question must be answered in the negative, so be it, that the wife was invested with the title for the purpose of putting it beyond their reach, the husband intending thereby to save it in her hands from the contingencies of his future business. It was held in Case v. Phelps (39 N. Y., 164) that a person about to engage in a new business could not, with a view thereto, and for the purpose of securing his property for the benefit of himself and family in the event of losses occurring in such new business, convey his property to his wife, voluntarily, without consideration ; that the conveyance so made would be fraudulent and void as to subsequent creditors, and that, too, although there was no intent to defraud creditors then existing. The same principle is declared in Carpenter v. Roe (10 N. Y., 227). So in Savage v. Murphy (34 id., 508) it was laid down that when a debtor transferred his real estate to his wife and children for a nominal consideration, yet continued in possession of the same, without any apparent change of ownership, and continued in business, paying past indebtednesses by obtaining new credit and contracting new debts until he fails in business, such transfer will be deemed fraudulent and void. as to subsequent creditors; and, further, that the fact that he paid up all indebtedness existing at the time of the transfer, by means of credits obtained afterwards, did not change the legal effect of the transaction. So Judge Folger, speaking for the court in Shand v. Hanley (71 N. Y., 319, 322) says on this subject that “ there is no difference in result, as there is no difference in intention to produce the result, between a transfer of property to defraud a creditor existing at the time and a creditor thereafter to be made.” (See, also, Mullen v. Wilson, 44 Penn., 413, and Partridge v. Stokes, 66 Barb., 586.) The principle above noted does not require for its application the entering upon a new and hazardous business by the debtor, following the transfer by him. It is the fraudulent purpose, the unfair and. dishonest intent with which the act is done that renders it illegal; such is the doctrine of the law; and the intent may be inferred by the probable or necessary result of the act. In many cases the fraudulent purpose becomes a necessary legal conclusion.

It is urged in this case that there was no attempted disguise as to the transfer by Breese to his wife ; that the deed was immediately recorded in the proper office. On the other hand, it is answered that the plaintiffs knew the fact that Breese had the title when or after they began to extend credit to him ; that they were never informed that it had been changed to the wife ; that he occupied the property as his own, and that they relied on the supposed fact that he continued to hold the title in himself. The referee finds that the plaintiffs had no notice or knowledge that the title to the property was put in the wife’s name until after the husband’s indebtedness, here sought to be enforced, accrued, and that they would not have trusted him had they known that the title was held by Mrs Breese ; and, further, that they did not give him credit after they learned that fact. We are satisfied with this finding. It seems but a reasonable and fair deduction from all the evidence in the case. The credit was continued right along without interruption, and was, at times, pretty large in amount. It is improbable that the plaintiffs would have continued so to extend credit to Breese, had they known that he had turned all or nearly all his property over into his wife’s name.

¿Ft is also urged that the wife’s title should be protected to her, inasmuch as the consideration of the purchase of the property conveyed to her was the sale of other real property, in which she had an inchoate right of dower which she released. But the transfer to her was not made as a condition of her releasing her inchoate right of dower in the other property. That release was voluntarily made. Nor aught that can be seen she surrendered her inchoate right without any condition whatever. Then the title to the property in controversy was made to her ; and this was, as has been seen, fraudulent as to the creditors of her husband. But on the trial it was admitted by the defendants’ counsel that they did not attempt to support the deed by any consideration for it coming from her. This may, perhaps, have been intended to apply only to an actual payment by her of a money consideration. However this may be, it does not appear that the conveyance to Mrs. Breese was made to secure to her the value of her inchoate right of dower in the other real estate, which right she had released, or had agreed to release. We find no error affecting the merits in the admission or rejection of evidence. Nor do we think there is any inconsistency between the general and special findings of the referee which require notice. On the whole, we are of the opinion that the judgment directed by the referee must be affirmed.

LearNed, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


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    EMILIUS J. ENOS AND JOHN EVANS, Respondents, v. ISAAC B. LEACH AND LEWIS L. LEACH, Appellants.

      Sureties — when a joint action lies by the sureties against the principal debtors — misjoinder of parties plaintiff— how objection must be raised.

    The plaintiffs, who were sureties upon a note upon which the defendants were liable as principal debtors, being compelled to take it up, paid the holder by giving him their joint note for part, and paying the balance in money, raised upon the discount of a note made by one surety to the order of the other, and discounted for their joint benefit.

      Held, that the note having been paid by the sureties jointly, they could maintain a joint action to recover the amount thereof from the principal debtors.

      Semble, that a misjoinder of parties plaintiff is not a ground for the dismissal of the complaint, as to all the parties plaintiff, if either has a good cause of action.

      Semble, that the objection of misjoinder of parties plaintiff should be raised by answer or demurrer.

      People v. Crooks (53 If. Y., 648); Allen v. Buffalo (38 id., 280); Biehtmyer v. Biehtymer (50 Barb., 55), are rendered nugatory by subdivison 5 of section 488 of the Code of Civil Procedure.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought upon a note, of which the following is a copy:
    BoucKVIlle, March 3, 1876.
    “ One year from date we jointly and severally promise to pay William W. Woodhull, or bearer, $500 for value received, with interest.
    “ ISAAC B. LEACH,
    “L. L. LEACH.
    “As surety: John Evans, Henry Brown, E. J. Enos.”

      Henry Barclay, for the appellants.

      A-. -A. Foote, for the respondents.
   Bockes, J. :

Tlio action ivas brought by the plaintiffs as sureties to recover moneys which they allege they were compelled to pay for the defendants, who were the principal debtors. The defendant, Lewis L. Leach, alone defended ; but according to the record the appeal is taken by both defendants. This, however, is probably of no importance in the case.

The fact is settled by the verdict of the jury, that the defendants, as between themselves and the plaintiffs, were principal debtors on the note described in the complaint. The evidence on this question of fact was conflicting. The jury, as they had a right to do, gave credit to the statements of the witnesses who testified in the plaintiff's behalf, and discredited the defendant’s evidence submitted by him to sustain the issue on his part. So on this appeal the verdict must be deemed to be conclusive of the fact that the defendants were, as regards the plaintiffs and their rights involved in this case, principal debtors on the note referred to. This note, on which the plaintiffs were sureties for the defendants, the former ivcre compelled to satisfy to the holder, and they did so and took it up. It was paid or satisfied as follows: The plaintiffs gave their joint note to the holder for $250, and paid him the balance — about $320- — -in money, obtained on a note made by the plaintiff Evans, and indorsed by the other plaintiff Enos; which last-mentioned note was discounted for their joint benefit in order to raise money to satisfy said balance. Thus, in effect, and, in fact, the note on which the plaintiffs wore sureties for the defendants was satisfied and taken up by the plaintiffs, with what was equivalent in law1 to their joint funds. They gave the holder their own joint note for $250, which was accepted as money ; and paid him the balance in money owned by them jointly, the same having been obtained by them for the purpose of satisfying the claim made upon them on their contract of suretyship. True, the amount over the $250 was not procured on a note signed by them jointly as makers, but the note was made by one of them and was indorsed by the other for the purpose of raising a joint fund with which to satisfy the claim upon them on their contract of suretyship. The money was raised on their joint credit, to be used by them as a joiu¿ fund, and was so used. Thus in fact, and in law, the plaintiffs ^-.itisfied and took up the defendants’ note ou which they were sureties for the latter, with their joint funds, or what was in law equivalent to joint funds. It is urged that the plaintiffs could not recover jointly, inasmuch as the contract of indemnity by the principal debtor was with each surety seperately. But it has been held repeatedly, that if two or more sureties pay their principal’s debt out of their joint funds, they may maintain a joint action against their principal. (May v. May, 1 C. & P., 44; Osborne v. Harper, 5 East, 255; Day v. Swann, 13 Maine, 165; Jewett v. Cornforth, 3 id., 107; Fletcher v. Jackson, 23 Vt., 581; Johnson v. Allen, 67 Ill., 317; Stewart v. Vaughn, 1 Rice [S. C.], 33.) True, it was held in Gould v. Gould (8 Cow., 168), in accordance with the common law rule that joint sureties, paying money for their principal, should yet sue him severally for the money paid. The decision in this case was affirmed in the Court of Errors. (6 Wend., 263.) But the question whether payment by sureties from their joint funds would give them a joint action against the principal was not deemed to be in the case, and ivas not there determined. In the absence of an express agreement of indemnity by the principal, the right of action by sureties for money paid for the principal rests on grounds of equity and justice. So the law will imply a promise, on the part of the principal, to refund the money thus paid for his use and belief!.'. The obligation springs from the justice and equity of the. mu, and is commensurate with such justice and equity. Tac implied obligation then will be either joint or several, as the right and equity is joint or several. It follows that if the payment by the sureties be made from their joint funds, the equity to have repayment is in them jointly, and the obligation rests upon the principal to make repayment to them. It seems to me that the case is with the plaintiffs, on the branch of it now under examination, on principle as well as authority, and it must, be lick that the action ivas well brought by the plaintiffs jointly.

But should not the objection of misjoinder of parties plaintiff hav# been raised by demurrer or answer ? (Old Code, §§ 144, 147, 148' Code of Civil Procedure, §§ 488, 490; see new provision, sub. 5 of § 488, Code of Civil Procedure.) Subdivision 5 of section 488 renders the following decisions nugatory. (The People ex rel. Lord v. Crooks, 53 N. Y., 648; Allen v. Buffalo, 38 id., 280; Richtmyer v. Richtmyer, 50 Barb., 55.)

And, again, was not a cause of action established in favor of the plaintiffs separately, if force be given to the objection that there was an improper joinder of parties plaintiffs ? It was laid down in Simar v. Canaday (53 N. Y., 298) that a mis-joinder of parties plaintiffs is not a ground of dismissal of the complaint as to all the plaintiffs, if either has shown that he has a good cause of action. (See, also, Palmer v. Davis, 28 N. Y., 242.) But it is not deemed necessary here to consider the questions last above suggested, inasmuch as we are of the opinion that the action was well brought by the plaintiffs jointly, for the reason that payment was made by them for the defendants, on their suretyship, from their joint funds or with what was equivalent in law to joint funds. The.case then rests (1) upon the fact determined by the jury, that the ■ defendants, as to the plaintiffs, were principal debtors on the note mentioned in the complaint; and (2) that the plaintiffs, as sureties for the defendants, paid or satisfied the note with what in law was equivalent to their joint funds.

Several exceptions were entered by the defendant, who answered the complaint, to the rulings of the judge upon the admission and rejection of evidence ; and, also, to his rulings on submitting the case to the jury. • But in. the view of the case above taken, we think no error was committed by the learned judge, of which the appellant can justly complain. Objection was made to the statement of Isaac B. Leach as not binding upon Lewis L. Leach. The judge did not hold that they were. He merely admitted them in evidence, and clearly they were admissible against the defendant making them. The offer to show that the plaintiffs had notice before the commencement of the suit; that Lewis L. Leach claimed that he was surety, and not principal on the note, was irrelevant and immaterial — hence was properly rejected. So, too, it was immaterial whether the plaintiffs had or had not paid the notes with which, or with the avails of which, they paid and satisfied the defendants note on which they were sureties. The offer of proof in that regard was properly overruled as immaterial. At first there seemed to bo some difficulty in the ruling, on the exclusion of the offer to show that one of the plaintiffs paid out of his own funds a portion of the note they claimed to have paid together out of their joint funds. But, on looking into the case, it is very manifest that the defendants suffered no injury from this ruling. It did appear, and it stood undisputed that the plaintiffs paid or satisfied the original note on which they were sureties, to the holder, as follows: By giving him their joint note, accepted by him as money for $250, and paying him the balance from funds which they raised on joint account for the purpose. When the case was closed, the facts connected with the payment of the original note by the defendants were undisputed, and they were assumed as undisputed facts by the judge in disposing of the case. So he ruled on those facts as presenting a question of law. The defendants’ counsel excepted to the ruling as matter of law. Just how the plaintiffs paid or satisfied the original note to the holder was indisputably proved, and the facts as to how such payment and satisfaction were made were ultimately accepted and admitted by all. So there was no error in the ruling upon questions of evidence affecting the merits of the case, of which the appellants may complain. The several exceptions to the charge, we think, need no comment, more than to say that we deem the record free from error in that regard. We think that the judgment and order appealed from should be affirmed, with costs.

Lb AUNEN, P. J., and Boaudman, J., concurred.

Judgment and order affirmed, with costs.


text:
    JOHN EVERS, Plaintiff, v. THE HUDSON RIVER BRIDGE COMPANY, at Albany, Defendant.

      Negligence — when the failure to remove ice from a bridge is not.

    The plaintiff while crossing the defendant’s bridge, between eight ana nine o’clock on a winter’s morning, slipped and fell, receiving injuries to recover damages for which this action was brought. On the night before rain had fallen which had frozen on the planks of the bridge and rendered them very slippery.

      Held,, that the failure of the defendant to remove the ice, within the few hours which elapsed from the time of its formation to the time of the accident, was no* such negligence as rendered the defendant liable for the injury sustained by the plaintiff.
    Motion for a new trial on exceptions, ordered to be beard in the first instance at the General Term, after a nonsuit directed at the circuit.

      Marie Oohn and J. II Olute, for the plaintiff.

      Matthew Hale, for the defendant.
   Bockes, J. :

The plaintiff was nonsuited at circuit, on the ground that the proof submitted failed to establish a cause of action. The action was for negligence, the plaintiff having been injured from a fall when passing over the defendant's bridge. On the morning of the accident the plaintiff started to cross the bridge on the sidewalk provided for foot passengers, and when near the western terminus he slipped and fell, receiving serious injury. The proof shows that the sidewalk on which the plaintiff was passing was at the time exceedingly slippery. During the preceding night (January twenty-fifth) there had been a considerable rain-fall, which froze as it fell, causing a covering of ice over the entire surface of the ground. The bridge was open and uncovered. The accident occurred between eight and nine o’clock, a. m. The grounds on which a recovery was claimed were (1) that the bridge was improperly constructed, both in manner of construction and material; and (2) that there was a negligent omission to keep the walk free from snow and protected from ice. It is quite plain that tbe first ground on which a recovery was claimed is without support on the proof. The evidence shows that the bridge was well and properly constructed, and that it was of usual and suitable material. The foot-walk had a very slight slope and was floored with Georgia pine. The slope was but just sufficient to carry off the rain and prevent water from standing thereon so as to secure a comfortable dry walk. In this there was no negligence. Nor was there any negligence in flooring the walk with Georgia pine. This is the usual material employed by careful, prudent men for flooring, whether protected by a covering or uncovered. Besides, in this case, the plaintiff’s fall was not occasioned by the smoothness and hardness of the flooring of the foot-path, but it occurred by reason of the ice which covered it.

Then, was there negligence, or reasonable ground for the jury to deduce negligence in the omission, either to remove the ice, or to ash or sand it ? The formation of the ice was from a very recent and natural cause. But few hours at most had elapsed since the origin of the cause of the injury, when the accident occurred. The mere fact that the foot-walk was slippery from the recent formation of ice upon it did not establish negligence. (Landolt v. City of Norwich, 37 Conn., 615; Stunton v. City of Springfield, 12 Allen, 566; Billings v. City of Worcester, 102 Mass., 329; Todd v. City of Troy, 61 N. Y., 506; Evans v. City of Utica, 69 id., 166.) These authorities show very distinctly that this action could not be maintained on the facts proved, had the defendant been a municipal corporation. Nor can it be-maintained against the defendant in this case, unless there was proof showing that the slipperiuess had been allowed to continue, an unreasonable length of time. Considered as a defect, it was. not caused by the defendant. The fault, if any existed, consisted, in permitting the defect to remain. Now it was proved that the; ice had been but recently formed. But a few hours before the; accident the rain had frozen as it fell. This was in the night time ; and the injury complained of happened in the early winter morning. The proof is that it occurred between eight and nine o’clock. 'In our variable climate ice, during the winter months, is frequently and suddenly formed through the action of the elements. It may continue a longer or shorter time, smooth and slippery. Permitting it to remain unheeded for. a few hours is not against common prudence. This was the question here presented on an undisputed state of facts. The learned judge was therefore right in granting a dismissal of the complaint.

The motion for a new trial on the case and exceptions must be denied ; and judgment is ordered for the defendant for a dismissal of the complaint, with costs.

LeaiíNed, P. J., and BoardmaN, J., concurred.

Motion for new trial denied, and judgment ordered for defendant on nonsuit.


text:
    RICHARD S. EGGLESTON, Respondent, v. THE PRESIDENT, DIRECTORS AND COMPANY OF THE COLUMBIA TURNPIKE ROAD, Appellants.

      Turnpike company'-^liability of, for piling stone by (he side of (he road, in such a manner as to frighten horses.

    The defendant caused a quantity of stones to be piled on the side of its road, near to a bridge, in the reparation of which they were to be used, and allowed them to remain there; horses of ordinary gentleness were more or less frightened at them, of which fact the defendant had notice. The plaintiff’s mare, which was of a kind and gentle disposition, while being driven by him in a careful and proper manner, came to the bridge, saw the stones, was seized with a sudden fright, jumped from the bridge breaking her leg, and injuring the plaintiff and his wagon.

      Held, that the defendant was liable for the damages so occasioned.
    Upon the trial of such an action, held, that the fact could be proved, that other horses of ordinary gentleness were frightened at the pile of stones, as it tended to show that it presented an unusual and strange appearance.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee.

      Gaul & Esselstyn, for the appellants.
    P. M. Jordan, for the respondent.
   Bockes, J. :

This case was carefully and elaborately argued by counsel, both orally, and on their printed brief and points, but as the law, applicable to the case, is familiar and undisputed on most of the questions in it, there is no necessity, as we think, to do more than bring prominently forward a few of the leading and, as we believe, controlling features of it. The referee found that a short time prior to the injury complained of the defendants’ bridge, or culvert across its roadway, got out of repair, and thereupon the defendants caused a quantity of stone to be deposited upon the margin of the road, fifteen or twenty feet from the upper center of the end of the bridge or culvert, for the purpose of being used in its requisite reparation ; that they remained there, without any notice or sigu to indicate their presence to travelers on the road, until the happening of the injury ; that, in the meantime, horses of ordinary gentleness were more or less frightened, by the stones while passing in the usual way of travel, of which fact the defendant had notice, ln;t nothing was done to avoid or prevent the continuance of such occurrences; that the plaintiff was driving his mare before a skeleton wagon along the road when, upon coming up to the bridge, she saw the stones, became seized with sudden fright, and almost instantly sprang over the end of the bridge, falling into the stream below, whereby one of her legs was bx-oken and she was rendered worthless, the wagon was damaged and the plaintiff injured. The referee also found that the mare was of a kind and gentle disposition ; that the plaintiff was an experienced and careful driver ; and that the injuries complained of happened without appreciable fault or negligence on his part. It was further found, if the fact be of any importance in the case, that the ends of the bridge or culvert were not protected by guards or railings.

On looking into the case it will be seen that the above findings of fact are sustained by the proof submitted on the trial. Indeed, in regard to most of them there was no controversy. Nor is it denied that the defendants were bound to keep the road in ordinary good repair for general travel. The defendants owned the turnpike franchise, had the highway in charge at the time of the occurrence, and collected toll from travelers upon it. They had assumed an obligation to maintain it in a suitable and reason ably safe condition for public travel. Tbe claim of liability in this case, therefore, seems to resolve itself very much, if not entirely, into a question of fact. Tbe immediate injury was caused by tbe fright and consequent sudden action of tbe mare ; and tbe fright was occasioned by the stone left upon tbe margin of tbe road by tbe defendants direction, and they bad remained there for several days, prior to tbe occurrence, to tbe knowledge of tbe defendants’ agent, who bad tbe road in charge. Tbe question then to be determined was whether the stone incumbered the highway, making it dangerous for public travel. Whatever so incumbers a public highway is a defect, and if injury result from it, liability will attach therefor to any party whose duty it is to remove or correct it. An omission of such duty, or willful inattention to it, is negligence. The party bound to the duty must see to it, that ordinary travel upon a highway is made convenient and reasonably safe to the traveler. The more common cause of injury and liability are structural defects, or omissions to repair the road-bed ; but a road may also be rendered unsafe, with consequent liability therefor, by unsightly objects placed, or permitted to remain upon it, which are calculated to frighten animals employed by travelers thereon. (Dimock v. Suffield, 30 Conn., 129; Winship v. Enfield, 42 New Hamp., 197; Chamberlain v. Enfield, 43 id., 356; Sherm. & Red. on Neg., sec., 388 [2d ed.] and cases there cited; Bartlett v. Hooksett, 48 N. Hamp., 18; Morse v. Richmond, 41 Vt., 435; see, also, 8 Am. Law Reg., 81, note to this case by Redfield, J.; Foshay v. Glen Haven, 25 Wis., 288; Stone v. Hubbardston, 100 Mass., 49; 18 Alb. Law Jour., 303, 382.) And this is so, although the object causing the fright be on the margin of the road entirely out of the traveled track. ( Winship v. Enfield; Morse v. Richmond (supra.) In the last case cited it was held that duty to travelers required the removal from the margin of highways of objects which, by their frightful appearances, made it unsafe to travel the road with horses of ordinary gentleness. It is urged here, however, that the stone were lawfully where they were placed and where they were allowed to remain ; and that this fact makes a difference in the application of the law to this case. But in such case the question will be, whether the obstruction to'the safety of general travel was both necessary and proper. In the case in hand, were the stones necessarily placed and permitted to remain where they were placed, and was it proper to leave them there presenting a frightful appearance, calculated to frighten ordinarily gentle horses, for so long a time as they were allowed to remain.

It is a well-settled rule that care must be taken, while the work of repairing a highway is in progress, to prevent injuries to passengers therefrom ; and it is negligence to omit proper warnings by barriers, lights, etc., with a view to the safety of public travel; so, objects calculated to frighten horses of ordinary gentleness, if necessary to be employed in the work of reparation, should be so hidden or concealed as to be harmless to careful, prudent travelers. Those were questions of fact, and the referee has found against the defendants on them, on what must be deemed sufficient evidence. For anything that appears the stone might have been placed at a point, perfectly convenient for their use in the reparation of the bridge, where their appearance would not have rendered the travel along the road unsafe from any cause connected with them ; and the affirmative proof is, that they were, in fact, placed so peculiarly as not to be observed by the traveler, until almost upon them, and that they presented'an appearance, when coming to notice, calculated to frighten gentle horses, and, did in fact, repeatedly have that effect. The absence of railings or fenders at the ends of the bridge is not deemed of importance in this case, as it is entirely manifest that the proximate cause of the injury was the fright of the mare occasioned by the appearance of the stone. The cause of the fright was the cause of the injury, nor can it be maintained that the defendants were uninformed of the obstruction complained of. The defendants directed the drawing of the stone for the reparation of the bridge; and their agent or employee, who had the road in charge, was informed of the fact that they had been left near the bridge for use; and it may be here added, that such agent was also informed of the dangerous character of the obstruction a considerable period of time before the injury complained of occurred. The knowledge of the agent was notice to the defendants. The defendants’ counsel is unquestionably correct in his proposition, that the burden of proof was on the plaintiff to establish affirmatively that the injury complained of resulted from the negligence of the defendants, without the fault of the plaintiff in any respect contributing thereto. The referee has found against the defendants on this proposition, and, as we conclude, so found on sufficient proof to sustain the finding.

Numerous exceptions were interposed to the findings of the referee, and also to his refusal to find as requested. But we are of the opinion that hone of those exceptions arc of such importance, as to require a reversal of the judgment. He found very fully, and as we think, upon every material point in 'issue in the case, and we are satisfied with his conclusions certified in the record. His refusals to find otherwise, or more fully than he did find, present, as we think, no substantial ground of error. As to the exceptions taken to the rulings of the referee on questions of evidence, we are of the opinion that no error exists calling for a new trial. It was competent to prove that other horses of ordinary gentleness were frightened by the stone. This was a fact tending to prove that the stone presented an unusual, strange and frightful appearance as they were placed, and where they were permitted to remain.

The objection to the question put to the witness, Robinson, whether in his judgment the pile of stone was of such a character, appearance and location, as would be likely to cause horses of ordinary gentleness to take fright, should have been sustained, had the ground of objection been sufficiently specific. But the ground of objection, that the question called but for an opinion, was not stated; and we must assume that, had the objection been specifically taken, so as to have called the attention of the referee to the precise point, it would have been sustained. Besides taking alL tho proof submitted to the referee into consideration, it is quite manifest that the answer given to the question did the defendant no harm in fact.

On the whole, we conclude that the record discloses no error calling for a reversal of the judgment, and that the judgment should bo affirmed, with costs.

LeaeNed, P. J., and BoardmaN, J., concurred.

Judgment affirmed, with costs.


author: Learned, P. J. :

text:
    THE FIRST NATIONAL BANK OF WHITEHALL, Appellant, v. HENRY G. TISDALE, Respondent, AND THE WHITEHALL TRANSPORTATION COMPANY.

      Accommodation malta' — the president of a banle cannot bind it by a promise not to enforce payment of the note against him — A written instrument cannot be contradicted by parol evidence.

    In an action upon a promissory note made by the defendant for the accommodation of the payee, and discounted by the plaintiff, the defendant offered to prove that, when the note was made, the president of the plaintiff agreed that he should not be called on to pay it. '

      Held, that the evidence was inadmissible (1) because the president had no authority to make such a promise; and (2), because it contradicted the written instrument.
    Appeal from a judgment in favor of the defendant Tisdale, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought against Henry G. Tisdale and the Whitehall Transportation Company to recover the sum of $7,500, and interest thereon, on a note made by the defendant Tisdale, payable to the order of said transportation company, and indorsed by and discounted for said company by the First National Bank of Whitehall, the plaintiff. The transportation company did not defend. The defendant Tisdale answered separately. The defendant was permitted, under objection, to introduce evidence contradicting the note, and tending to show that the defendant Tisdale made the note in suit, to enable the plaintiff to carry a larger debt of the transportation company than was allowed by law, that he was only an accommodation maker, and that at the time it was made the president of plaintiff agreed orally with him that he should not be called upon to pay the note. The testimony of the witnesses upon the trial tended to show that originally the defendant Tisdale made his note for $5,000, and loaned it to the transportation company, of which he was vice-president, and also accepted a draft drawn by said company on him for $2,500, both of which wore discounted by the plaintiff and the proceeds paid in cash to said company, that the note and draft so discounted were protested, at maturity for non-payment, and that the note in suit was given in renewal and to take the place of said note and draft, which were delivered to defendant Tisdale at the time the note in suit was delivered to the plaintiff.

      James Spencer, for the appellant.

      D. F. Davis, for the respondent.
   Learned, P. J. :

The meaning of the words “accommodation paper” is well known. 'Where such paper is made and lent, the maker can defend against the borrower, on the ground of want of consideration. But, in the present case, the note was for the accommodation of the Whitehall Transportation Company. It was discounted by the bank and the avails were placed to the credit of the transportation company. These avails were practically applied to the payment of a note and draft, which together were (exclusive of interest) of the same amount with the note in question. This former note had been made and the draft accepted by defendant Tisdale, and the note indorsed and the draft drawn by said company, and both discounted for them by the plaintiffs. The bank, therefore, was not the accommodation borrower. The bank had parted with value for this note, by placing the avails to the credit of the company, and the charging up the old note and draft and surrendering them.

As to the evidence that the president of the bank agreed with the defendant that he should not pay the note in suit or the former paper there are two objections : First. It is not within the authority of the president of a bank, when he discounts paper for the bank, to promise the maker that he need not pay it. (Bank United States v. Dunn, 6 Peters, 51; approved in Bank Metropolis v. Jones, 8 id., 12.) Second. The evidence contradicted a written instrument. This is very different from the defence, above mentioned, of a maker of accommodation paper when sued by the borrower. That defence is want of consideration. This defence is an attempt to prove that the defendant did not promise what the paper, signed by him, says that he did. Davis v. Randall (115 Mass., 547) is a case very analogous. And the general doctrine is elementary.

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

Present — Leakeed, P. J., Bocees and BoaedmaN, JJ.

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