author: Landon, J.

text:
    Russell Wheeler et al., Resp’ts, v. David M. Jones, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed January 24, 1887.)

    Payment—taking mortgage to secure wile not extend time of payment.
    Certain accounts against third parties due in the future, were assigned to the plaintiffs as security upon the agreement of the plaintiffs that as these accounts become due, they should collect the same and apply the avails in payment of a certain indebtedness of defendant. Held, that plaintiffs did not fix a new day of payment of the old debt, nor agree to postpone collecting it until they should collect the assigned accounts.
    Appeal from a judgment in favor of the plaintiffs entered upon the decision of the court at circuit upon the trial without a jury.
    The action was for merchandise sold by the plaintiffs to the defendant. It was admitted that the plaintiffs were entitled to recover $778.30 unless they had, by accepting the following assignment as collateral security, extended the time of payment. It being admitted that the several assigned accounts were not due at the time of the commencement of the action.

      “ Whereas, I, David M. Jones, of Canton, am justly indebted unto the firm of Russell Wheeler, Son & Co,. of Utica, N. Y., the sum of $1,260.64; now, therefore, for the purpose of securing said debt to said firm, I do hereby sell, assign and set over to them the following accounts and demands, to wit: (Then follow the names of ten different persons with a statement of the amount of the account against each one, the aggregate being $1,688).

      “ The said assignees are to collect said claims as they fall due and place the several amounts so received from them to my credit as payments upon my said indebtedness, and after the same shall be paid in'full to return such claims as are uncollected to me, if any there be; also to account to me for any amount received by them over and above the amount of their said claim and expense of collection.
    Dated, Canton, November 27, 1884. .
    D. M. JONES.”

      Chamberlin - & Hale, for app’lt; Wm. H. Sawyer, for resp’ts.
   Landon, J.

Cary v. White (52 N. Y., 139), is to the effect that where there is no agreement to extend the time of the payment of the original debt, or no substituted 1 agreement made respecting the debt, the mere taking of a mortgage payable at a future time as collateral security for the original debt does not operate to extend the time for its payment.

Durkee v. National Bank of Fort Edward (36 Hun, 565), is to the effect that when the original debt is past due, and the debtor, at the request of his creditor, gives him a mortgage to secure its payment, which mortgage appoints a future day of payment and provides that if payment be then made the mortgage shall be void, then the creditor by accepting the mortgage accepts its terms.

In the former case, the collateral mortgage does not in terms refer to the original debt, nor fix a new day for its payment; in the latter case, the original debt is by express terms in the mortgage made payable at a future day.

In the case at bar, the assignment does not by its terms extend the time of payment of the original debt. Certain accounts against third parties, due in the future, were assigned to the plaintiffs as security upon the agreement of the plaintiffs that as these accounts became due they should collect the same and apply the avails in payment of the indebtedness. The plaintiffs now had the original unchanged promise of the defendant, and the assigned claims against third parties, but they did not fix a new day of payment of the old debt; they fixed the time when they would apply the proceeds of the assigned accounts, namely, when they .should collect them; but they did not agree to postpone collecting the original debt until they should collect the assigned accounts.

Judgment affirmed, with costs.

Learned, P. J., and Bockes, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Cecelia G. M. Preston et al., Appl’ts, v. Elmer E. Palmer et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed January 24, 1887.)

    1. Will—Designation in form prescribed by statute of succession to TESTATOR’S PROPERTY—:NOT CONTRACT.
    A will is a designation in the forms prescribed by statute, by the testator, of the persons who shall enjoy his property after his death; it is not a contract.
    2. Same—Murderer of testator not disqualified to take under ms WILL.
    A legatee or devisee is not disqualified from taking under a will by the fact that he murdered the testator.
    3. Same—Sentence of murder—Does not relate back to death of PARTY MURDERED.
    If the murderer is by virtue of the sentence civilly dead, yet he does not become so until sentenced, and the sentence does not relate back to the death of the person murdered, it does not disqualify the murderer from taking as legatee or devisee under his will.
    Appeal from a judgment for the defendants entered upon the report of a referee.
    The object of the action was to have the will of Francis B. Palmer, so far as it devised and bequeathed property to the defendant, Elmer E. Palmer, declared void, upon the ground that Elmer E. Palmer wilfully murdered the testator, in order that he might prevent a revocation of the will .and have the immediate enjoyment of the property. The case was referred to the Hon. W. H. Sawyer, who found the following facts:
    For many years prior to April 25,1882, Francis B. Palmer was the owner of the real .property described in the complaint (a farm of about 130 acres) and a large amount of personal property.
    April 25, 1882, he died of strychnine poison, wilfully administered to him by the defendant Elmer Palmer, with the intent and for the purpose of producing his death.
    Francis made his will in 1880. It gives his two daughters, the plaintiffs, fifty dollars each, and the residue to his grandson Elmer.
    Elmer was aware of the provisions made for his benefit by his grandfather’s will and was desirous of entering into immediate possession of the property, and administered the poison with that intent. The testator had expressed disapproval of Elmer’s conduct, and presumably would have-altered his will had he known or suspected Elmer’s murderous intent.
    The farm and personal property were worth about $5,500, and Elmer had no property of any considerable amount.
    The deceased left no descendants except his two daughters, the plaintiffs, and the grandson Elmer, a boy about twenty years old, who is unmarried, and had lived in the-family with his grandfather for a long time.
    The will had been probated, and the administrator, with the will annexed, is acting thereunder and in possession of the property, and unless enjoined, proposes giving Elmer the enjoyment of the real and personal estate.
    It was conceded on the trial that Francis died of the strychnine poison. It was further conceded that Elmer was convicted at the St. Lawrence oyer of murder in the second degree for the killing of Francis by strychnine poison, and was sentenced to the Elmira State Reformatory therefor, where he has since been, and now is imprisoned. The tenant and widow are in default.
    The referee deduced, as conclusions of law from these facts the following: That in this state the transmission of property by will, and its descent, are creations of statute, and governed thereby; that nothing remains to courts but to enforce the statutes as they are, the old maxims of the common law being overridden thereby; that no exception exists under the statute to the right to take by will on account of crime; that although Elmer wickedly and maliciously compassed the death of the testator, he is still entitled under the statutes to take under his will and enjoy the fruits of his crime. To a request to find that the motive of Elmer in murdering Francis was to obtain the speedy enjoyment of the property, and to prevent the revocation by Francis the provisions of the will beneficial to him, the referee responded, “ I so find substantially.” He refused to find as a conclusion of law that Elmer had no right to terminate the enjoyment by Francis of his property, or prevent the revocation of the will. He further refused to find that Elmer is estopped from claiming the benefits of the will, a possible revocation of which he prevented by crime.

      Leslie W. Russell, for app’lt; W. M. Hawkins, for resp’t..
   Landon, J.

We concur in the conclusions of law found, by the learned referee. Elmer E. Palmer is permitted by our law to take the property devised and bequeathed to him by the will of his grandfather, although he himself wilfullymurdered him.

The civil law, and the law in those countries which derive their jurisprudence from it, as we are instructed by the diligence of counsel, holds otherwise. Domat Civil Law, pt. 2, bk. 2, tit. 1, § 3; Pothier on Successions, ch. 1 § 2, act 4, § 2; Toullier, vol. 4, p. 113; Duranton, vol. 6, p. 111; Marcade, vol. 3, p. 42; Spanish Partidas, 994.

The Civil Code of Lower Canada, § 610, copying from Code Napoleon, § 727, reads as follows:

“The following persons are unworthy of inheriting and as such are excluded from successions: 1. He who has been convicted of killing or attempting to kill the deceased.”

Ib. § 893, substantially like §§ 955, 1046, Code Napoleon, “The revocation of a will maybe demanded: 1. On the ground of the complicity of the legatee in the death of the testator.”

It is manifest that we have omitted in our state to provide for the like contingency.

We are cited to the case of The New York Mutual Life Ins. Co. v. Armstrong, 117 U. S., 591, in which it was held that the beneficiary and owner of a policy of life insurance, by murdering the insured, forfeited all rights under it. The court said: “As well might he recover insurance money upon a building that he had wilfully fired.” That was a case of contract; it certainly could not be held that the company had promised to pay the insurance money to the murderer of tho person whose life was insured. Such a contract would be so unreasonable and against public policy that the courts could well hold that the minds of the contracting parties had never met upon such-a proposition, and, if they had, tho contract would be void. But a will is not a contract. It is the designation in the forms prescribed by statute, by the testator, of the persons who shall enjoy his property after he is dead. The law has pronounced its sentence upon this murderer, and that sentence does not embrace incapacity to take under this will. If, as we do not think, he is by virtue of the sentence civilly dead, he did not become so until sentenced, and the sentence did not relate back to the testator’s death, and, therefore, could not affect any question at issue here. Perhaps this case will suggest to the law-makers the imposition of such incapacity in like cases. But as it has not been imposed by the legislature, we cannot declare it.

The judgment is affirmed with costs.

Learned, P. J., and Bocees, J., concur.


text:
    Frank A. Cantwell, App’lt, v. Michael L. Burke and Willard L. Collins, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed January 24, 1887.)

    1. Contract—Evidence of acts of one party after making, not admissible TO PREJUDICE THE OTHER PARTY.
    In a suit on a contract it is error to admit in evidence, proof of the acts of one party to a contract prejudicial to the other party thereto, when those acts occurred after the contract was made.
    2. Same—Firm not bound by individual contracts of members.
    If one contracting with a jiarty who is a member of a firm has notice that said party is acting for himself and not for the firm, the firm is not bound by the contract unless it adopted it.
    3. Same—Admissibility of evidence to show scope of business.
    Touching the scope of the business of the firm, the defendant was permitted to give evidence of a card inserted in a newspaper, without giving any evidence tending to show that it was brought to the plaintiff’s notice. Also evidence of customs of the firm in doing business, of which he had no notice. Held, error.
    4. Same—What admissible to show reason for repudiation of.
    It was proper for plaintiff to ask the partner who repudiated the contract, if in July following the making of the contract in question, he ascertained that the assets of the firm were insufficient to pay its debts.
    5. Lease—Liability of lessor on failure to make agreed repairs—
    of lessee. i
    When the lessor covenanted to put a certain factory in running order, and the lessee entered into possession. The lessee became liable to pay the agreed rent, and the lessor was liable for damages, if he failed to put the premises in running order.
    6. Same—Measure of damages on failure of lessor to make agreed REPAIRS.
    The measure of damages in such a case would he the difference in the value of the use of the premises as they were and as the lessor had agreed to put them.
    7. Trial—Question of fact for jury to decide when controverted.
    It is error for a judge to direct the jury liow to decide a controverted question of fact.
    Cantwell. Badger & Cantwell, for app’lt; William P. Cantwell, of counsel; G. Id. Main, for resp’t.
   Landon, J.

The plaintiff sought to recover $120 upon a written lease and contract signed by him and by the defendant Burke in the firm name of Burke & Collins. The defendants were co-partners doing business at Chateaugay under that firm name, as dealers in hay and country produce, including butter. By the terms of the contract the plaintiff leased to the firm a cheese factory, for seven months for the rent of $100, sold them some ice in the factory for twenty dollars, the defendants agreeing to pay the rent and the price of the ice. The plaintiff also agreed to put the factory in running order on or before May 1, 1882, which was the day the term of hiring began, the defendants to pay fifteen dollars toward the expense of repairs. The plaintiff made some repairs and notified the defendant Burke that the factory was in order. Burke took possession and operated the factory for a few days and then abandoned it.

The separate answers of the defendants deny that the contract was made by the firm or in its business, and allege that it was the individual contract of Burke. Burke’s answer alleges that he abandoned the factory because it was not placed in running order, and that he suffered damage thereby in the sum of $200. The verdict was for the defendants.

One of the questions in issue upon the trial was, whether the defendant Collins, was bound by the contract. Both defendants testified to the effect that it was not a firm transaction, and evidence was given showing the character of the business of the firm, for the purpose of showing that it was not within the scope of their general business. The plaintiff testified in substance that he accepted the contract in good faith supposing it to be a firm transaction. He also introduced testimony tending to show that Collins offered to settle for the rent and otherwise recognized and ratified the transaction. Collins denied that he offered to settle for the rent, and explained the circumstances by alleging that he did not know that the lease existed.

The court in charging the jury referred to the question of ratification and said, “There are some circumstances proved that tend in that direction, but they have been so explained that I do not think that the jury could be asked to find that they amount to a ratification.” To this portion of the charge the plaintiff excepted. We think the exception well taken. The case upon this question stood thus—the circumstances tended one way and the explanation another, and the court instructed the jury how to decide upon the conflict in the opposing tendencies of the evidence. If the jury had been at liberty to decide this controverted question of fact according to their own judgment, possibly, under all the circumstances they would not have believed the explanation, and if they had believed it, they might not have concluded that it preponderated over the weight of the facts tending to show a ratification. The testimony of the defendants was given under such circumstances of interest as rendered it proper for the jury to pass upon its truth as well as its effect.

Subsequent to the making of the contract the defendant Burke employed one, Hyde, to operate the factory. The defendants were allowed to prove by him that Burke said nothing to him about Collins having anything to do about the factory, and that his employment was not in the name of the firm. This was clearly error. The contract of plaintiff could not be construed to his prejudice by reason of Burke’s acts after it was made.

Touching the scope of the business of the firm, the defendants were permitted to give evidence of a card inserted in a newspaper, without giving any evidence tending to show that it was brought to the plaintiff’s notice. Also that the firm had never leased any other butter factory, and that Burke had sometimes giving his firm’s check in his individual business. The plaintiff could not be prejudiced by any of these acts, unless he had notice of them.

It was competent for the plaintiff to ask the defendant Collins if, in July following the making of this contract, he ascertained that the assets of the firm were insufficient to pay its debts. It called for a matter proper to be considered as possibly influencing his repudiation of this contract.

Burke gave a firm check to Mr. Hyde in payment of his services in the factory. It was competent for the plaintiff to ask Collins if he furnished the money to pay that account.

As there must be a new trial, a few suggestions are added.

Here the actual business of the firm was dealing in country producé, including butter. Whether the firm should engage in the manufacture of butter, and for that purpose hire a factory, was a matter for them to determine, and if the defendant, in making this contract, represented to the plaintiff that he hired this factory for the firm, and the plaintiff, in- good faith, acted upon that representation, Collins was bound by the contract. Chemung Canal Bank v. Bradner, 44 N. Y., 680,

If, however, the plaintiff had notice that Burke was acting for himself, and not for the firm, and the contract was not adopted by Collins as a firm contract, then Burke, who used the firm name without authority, only bound himself, and thereby became severally liable. Because of such several liability, a several judgment could pass against him in this action, unless he made good his separate defense.

The defendants or Burke, having entered into possession of the premises, became liable, upon the agreement, to pay rent. La Farge v. Mansfield, 31 Barb., 345.

If the plaintiff failed to put the premises in running order he was liable for damages upon his breach of his agreement to do so. Cooke v. Soule, 56 N. Y., 420.

The damages in such case would be, in case the tenant did not himself make the repairs, the difference in the value of the use of the premises as they were and as the plaintiff had agreed to put them. Id.

Burke saw the factory before the lease was made, and entered into the lease relying upon the plaintiff’s agreement to make repairs. He was not by deceit entrapped into making the lease or into taking possession under it.

There may be cases in which the landlord leases a house which from causes not observable upon ordinary inspection, and which the landlord conceals, is wholly unfit for occupation; the tenant upon discovery of this fraud may rescind his contract and abandon the premises. Wallace v. Lent, 1 Daly, 481. See Cesar v. Karutz, 60 N. Y., 229.

Here there was no defect not visible upon inspection, and no case was presented allowing the defendants to rescind after entering into possession.

There was no defense to the claim for the price of the ice, this was sold, not leased.

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

Learned, P. J., concurs; Bocees, J., concurs in the result.


text:
    John A. Thompson, Resp’t, v. Rowland H. Hazard and. Stephen F. Moriarty, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed January 24, 1887.)

    Bond—Construction of language—Action on bond.
    The owner of bonds which were in the hands of the assignee of a bankrupt company by written contract agreed to sell them to another, who assigned the contract to the defendants. The owner subsequently assigned his interest in the contract to the plaintiff. While the bonds were in the hands of the assignee the owner was sued by one who attempted to levy upon the sum to be paid by the defendants for the purchase of the bonds. The United States district court, in which the bankruptcy proceedings were pending, made an order that the bonds in question be delivered to the defendants upon their executin': and delivering to the plaintiff a bond ■conditioned that the defendants should pay or cause to be paid to the plaintiff herein a certain sum upon the discontinuance of the above mentioned attachment, or its dissolution, or its being held invalid, or that they should pay or cause to be paid so much of the sum as should not be held by the attachment. Held, that the plaintiff must show covenant broken ■at the time of the commencement of an action on the bond, that the covenant was not to pay if the attachment were in fact invalid but if it were held so, and that the plain meaning of the bond was that the holding to that effect should be in the action in which it was issued in order to create an obligation on the part of the defendants.
    Appeal from a judgment in favor of plaintiff entered upon the report of a referee..
    The action was brought to recover upon a bond executed by the defendants to the plaintiff.
    From the evidence, it appeared that in August, 1882, one Mathias 0. Eaton was the owner of a parcel of bonds known as the “Mexican Woodhouse bonds.” These bonds seem to have been in the custody of the Manhattan Engraving Company, a bankrupt, at the time its assets passed into the hands of its assignee in bankruptcy, and these bonds thus came to the assignee’s hands.
    In August, 1882, Eaton, by a written contract, agreed to sell the bonds to one Brie, and this contract was subsequently assigned to the defendants. Eaton assigned his interest in the same contract to the plaintiff.
    The plaintiff was willing that the defendants should have the bonds, the defendants were willing to take and pay for them, but the bonds were in the custody of the assignee in bankruptcy of the engraving company. Meanwhile, one Smith sued Eaton, and obtained an attachment, which he attempted to levy upon $6,000 of the sum to be paid by the defendants for the purchase of the bonds.
    Matters being in this situation, the United States district court made an order that the Mexican Woodhouse bonds in question be delivered to the defendants, upon the defendants, among other things, executing and delivering to the plaintiff the bond upon which the present action is brought. The bond, after reciting the history of the transactions, the order of the court and the delivery to, the defendants of the bonds, contains this condition :
    “Now, the condition of this obligation is such, that if the above bounden obligors * * * shall well and truly pay or cause to be paid to the above named John A. Thompson * * * the sum of $6,000, and interest from the date hereof, upon the discontinuance of the above mentioned attachment, or the dissolution of said warrant of attachment, or if said attachment be held invalid to hold said sum, or if they shall pay so much of said sum of $6,000 and interest, as shall not be held by and under the said warrant of attachment in said action in the supreme court of the state of New York, then,” etc.
    The plaintiff did not prove that any adjudication or order had been made in the action of Smith v. Eaton, vacating, or in any way determining whether the attachment was a hen upon the price of the Mexican Woodhouse bonds, to be paid by the defendants. The defendants moved for a non-suit upon the ground that no cause of action had been proven. They also asked the referee to hold that the attachment was a bar to this action. The referee refused and held that no part of the unpaid price of the Mexican bonds had been attached, and that the attachment is invalid to hold and does not hold the sum of $6,000 or any part of the unpaid price of the Mexican bonds, and hence the attachment is no obstacle to plaintiff’s recovery.

      William H. Newman, for app’lts; Thornton A. Niver, for resp’ts.
   Landon, J.

The covenant of the bond executed by the defendants was that they -should pay the plaintiff the $6,000; if said attachment shall be held invalid to hold said sum of $6,000. The referee held in this action, without any evidence that it had been so held in the action of Smith v. Eaton that the attachment was invalid to hold said sum, and, therefore, held that the plaintiff was entitled to recover.

The covenant was not to pay if the attachment was in fact invalid, etc., but if it should be held invalid. The plaintiff must show covenant broken at the time of the commencement of the action, and it had not then been so held. Besides the plain meaning of the covenant was to pay if the attachment should be held invalid, etc., in the action in which the attachment was issued. The bond recited that the attachment was issued in the action of Smith v. Eaton in the state court. Whether the attachment was valid or not, or operated as a lien upon any part of purchase price of the Mexican bonds, or could in any way prejudice the defendants, was a question which the defendants suggested in the proceeding in the XT. S. district court. That court could not decide the question, as the attachment had been issued in another action in the state court; but the district court it seems had the control of the custody of the Mexican bonds in the hands of its officer, the assignee in bankruptcy of the Engraving company. The District court thought it right to cause the Mexican bonds to be delivered to the defendants who held the contract or option for their purchase. The defendants were willing upon obtaining these bonds to pay for them, but since some attempt had been made by Smith in his suit against Eation to attach $6,000 of the price to be paid by the defendants, the defendants desired to be protected in their payment from liability to pay both the plaintiff and the attachment creditor of Eaton, plaintiff’s assignor. Hence, the bond in suit. The defendants entered into no engagement to pay if they could not sustain the attachment much less if they could not sustain it in a suit between themselves and this plaintiff. The plaintiff are mere stake holders, to abide the fate of the attachment in the suit of Smith v. Eaton. If it shall be held in that suit that the attachment is valid, the defendants must pay there. This judgment would be no defense to them, and paying here will be no escape from paying there.

The motion for a non-suit presented the whole question, and it should have been granted.

Judgment reversed, reference discharged, new trial . granted, costs to abide the event.

Learned, P. J., and Bocees, J., concur.


text:
    Rutsen Hunt, App’lt, v. Charles A. Van Deusen, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed January, 1887.)

    1. Contract—Executory—Warranty—What will amount to.
    The plaintiff had live hogs which he offered to butcher and sell to this defendant .To an inquiry by the defendant whether there were any of coarse or unmerchantable quality among them, he replied no, that they w ere all a choice, first-class lot. The defendant agreed to buy the hogs at a price stated. In an action for the price agreed upon: Held, that these representations by the plaintiff constituted a warranty of quality.
    2. Same—Breach of warranty—Measure of damages.

      Held, that upon a breach of warranty, the measure of damages was the difference in value between the pork as it was and as it was represented to be.
    3. Same—Pact that vendee saved himself from loss does not exempt VENDOR FROM LIABILITY FOR BREACH ON WARRANTY.

      Held, that notwithstanding the fact that the vendee saved himself from actual loss, it cannot avail the vendor; he must respond according to the terms of the contract.
    4. Evidence—Incompetency of.

      Held, that evidence by others that they purchased pork of like kind to that claimed to be not according to agreement, and that they were unable to detect a difference between that and the other pork, and as to their me: hod of treatment of it was incompetent. That the defendant could not be prepared to meet these individual cases, but only to establish the general fact in such cases, and the particular fact in the present case.
    The plaintiff had fifteen live hogs and offered to butcher them and sell the pork to the defendant. The defendant asked if there were any stags, course or unmerchantable hogs among them; he said no, they were all a choice first-class lot. The defendant agreed to buy the pork at seven dollars per hundred. Some time afterwards the plaintiff delivered the dressed hogs at the store of the defendant, during his absence. Upon examination one of them of 394 pounds weight was found to be very coarse. It was proved on the trial that it was when butchered a hog from which only one testicle had been taken in castration, the other not being found. Evidence was given tending to show that the pork of such an animal was not merchantable, and was of little value.
    The plaintiff had judgment for the price of the pork; which judgment was reversed by the county court, and the plaintiff appeals.

      Newkirk & Chase, for app’lt; Hawes & Cochrane, for resp’dt.
   Landon, J.

The representations upon which the defendant agreed tq buy the pork were a warranty of quality. There was a substantial breach of that warranty, that was not waived by the acceptance of the pork. Brigg v. Hilton, 99 N. Y., 517.

The plaintiff cites Gilbert Car Co. v. Mann (3 N. Y. State Rep., 301), decided by us. We held in that case that bhe car which the plaintiffs manufactured and delivered under an executory contract containing a warranty as to quality, was accepted under such circumstances as precluded the defendant from insisting upon the warranty. The defendant in that case, notwithstanding the warning of the plaintiff, insisted upon the use of the green wood which caused the defect. The defendant here did nothing to waive his right to rely upon the warranty.

The measure of damages was the difference in value between the pork as it was and such pork as it was represented to be.

The defendant made the pork into sausages and lard. He was required to answer notwithstanding his objection that he sold the sausage and lard at the ordinary price. The object of this was to show that by his methods he protected himself from actual loss. But tliat fact does not avail the vendor. He must respond according to the terms of the contract, and cannot because of the dexterity of the vendee escape from the damages measured by the rule above stated. Muller v. Eno. 14 N. Y., 597.

It was not competent for the plaintiff to prove as he did by several witnesses that each one of them had had a hog of this description, and how he treated it, and that he did not discover that the pork differed from his other pork. The defendant could not be prepared to meet these individual cases, but only to establish the general fact in such cases, and the particular fact in this case.

The judgment should be affirmed with costs.

Learned, P. J.', Bocees, J., concur;


text:
    Jacob I. Signer, Resp’t, v. Alvah H. Newcomb, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed January 24, 1887.)

    Contract—Consideration—When void for want of-.
    The plaintiff agreed in a sealed instrument to obtain a certain deed for defendant, who was to pay him for it $500. Afterward, by paroi, the defendant agreed to obtain the deed himself, but promised to pay the plaintiff the agreed amount whether he, the defendant, had to pay anything for the deed or not. Defendant paid $500 for the deed, but refused to pay plaintiff. Held, that the paroi agreement, to make the non-performance of a covenant or condition in a sealed instrument the equivalent of a performance, was void for want of consideration, and that plaintiff could not' recover.
    Appeal from a judgment in favor of the plaintiff upon the verdict of a jury, also from the order denying the motion made upon the minutes for a new trial.
    The action was to recover $500 upon a sealed agreement, as modified by the parties.

      On the 19th of January, 1882, the plaintiff was and for many years had been in the possession of the lot known as the factory lot, at High Falls, Ulster county. On that day he conveyed the lot by quit-claim deed to the defendant for $3J5, which the defendant paid, and at the same time both parties entered into an agreement under seal which, - after reciting said conveyance, was as follows :
    “Now, therefore, the said party of the second part hereby agrees to pay to the said party of the first part the sum of $500, whenever said party of the first part shall produce a ' deed from Margaret Snyder, deceased, formerly of Hones-dale, Pa. (daughter of David 0. Hasbrouck), to Isaac L. Hasbrouck, deceased, formerly of said town of Marble-town, conveying the said hereinbefore described lands and premises and water privileges to said Isaac L. Hasbrouck, or shall produce or be able to show and prove any other good and sufficient conveyance or title of the said lands and premises and water privileges from said Margaret Snyder to said Isaac L. Hasbrouck, by virtue of which said party of the first part might have had any title to said lands and premises and water privileges from said Margaret Snyder through said Isaac L. Hasbrouck.”
    The lot had formerly been owned by the plaintiff’s former wife who died in 1842, and by her sister Margaret, now deceased, formerly the wife of Isaiah Snyder, as tenants in common. The parties understood that the plaintiff had acquired his former wife’s title, and the plaintiff believed that he had also acquired his sister Margaret’s title, by virtue of a deed given by her to her brother Isaac L. Hasbrouck, whereby, under the will of Hasbrouck, the title came to the plaintiff. At least, both plaintiff and defendant were agreed that if this deed from Margaret Snyder to Hasbrouck could be found, plaintiff’s title would be complete, and his deed to the defendant would convey the whole title. But the deed from Margaret to Hasbrouck could not be found. After the sealed agreement between the parties was made, they became satisfied that Margaret had never given any deed to Hasbrouck, and hence, because of Margaret’s death, leaving her husband Isaiah Snyder and their one child surviving her, which child subsequently died, the title to Margaret’s half was vested in Snyder, who lived at Harrisburg, Pa.
    The plaintiff’s testimony which the jury accepted, was to the effect that he could not find the Hasbrouck deed and, that defendant would have to have a deed from Snyder; that defendant said if plaintiff got him a deed from Snyder, it would be satisfactory. Plaintiff intended to go to Harris-burgh to obtain it, but was sick and did not go. Defendant asked plaintiff to consent that defendant should go. That he was in a hurry to perfect his title and build on the lot, he would go free of cost to plaintiff, and if he got the title from Snyder, he would pay the plaintiff the $500, whether he paid anything to Snyder or not. The plaintiff consented. The defendant did go—obtained the deed to himself from Snyder. It appeared from defendant’s testimony that he paid Snyder $500. Defendant refused to pay plaintiff the $500.

      John J. I/inson, for app’lt; John E. Van Etten, for resp’t.
   Landon, J.

The plaintiff did not perform and confessedly was wholly unable to perform his part of the sealed agreement. He had undertaken to show that the title, once in Margaret Snyder, had become vested in himself, but his inquiries convinced him, that instead of that being the case, this title was actually vested in Isaiah Snyder. When he communicated this fact to the defendant, the defendant in substance said to the plaintiff: “If Snyder will give me this title, I will pay you $500, just the same as if I had it from you.”

Whether this was a new agreement or an attempted modification of the old one, it seems to have been entirely destitute of consideration, and in either case void for that reason.

Since the plaintiff could give the defendant nothing, the defendant undertook to get the title he wanted from Snyder, and yet pay the plaintiff $500—for nothing.

Instead of the plaintiff performing one part of any substantial agreement, the defendant must perform for both parties, and yet pay the plaintiff for his non-performance. It seems a novel proposition that it is competent for parties to make by paroi, and without consideration, the non-performance of a covenant, or condition in a sealed instrument, the equivalent of performance. Suppose the defendant had said to plaintiff: “You have not performed; you have not sold me the Margaret Snyder title, and you admit that you have not got it to sell, and I must buy it of Isaiah Snyder. If I do buy it of Snyder, I will pay you what we have agreed it is worth, $500.” This would be a substantial statement of the agreement. That it was utterly destitute of any consideration moving from the plaintiff seems too plain for discussion. It is not relieved by the probable fact that the plaintiff would not have sold at all if he had actually known that he had so little to sell.

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

Learned, P. J., and Bocees, J., concur.


text:
    National Bank of Granville, Resp’t, v. Jacob Cohen et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed January, 1887.)

    1. Assignment fob the benefit of ceeditobs—When void.
    An assignment for the benefit of creditors, given and received for the purpose, among other things, of apylying the firm property to pay the individual debts of the members of the firm, is void. It makes no difference whether such an assignment was to a trustee or to a creditor, or was in the nature of a mortgage. In either case the purpose will, if carried out, enable the plaintiff to hinder and delay the firm creditors in obtaining satisfaction of their debts, and will defraud them to the extent that the firm property is applied to individual debts.
    2. Same—When void in fabt wholly void.
    The whole assignment is void if any part was made with the intent to defraud or delay creditors.

      It. C. Betts, for resp’t; Townsend, Dyett & Einstein, for app’lts.
   Landon, J.

I think this judgment should be reversed upon the ground that the assignment was void against the defendants, who are firm creditors, with attachment, judgment and execution.

It is conceded that the provision of the assignment, transferring the firm property to the plaintiff in order to secure the individual debts of the members of the firm, cannot be upheld, but it is claimed that the portion of it transferring to plaintiff the firm property to pay the firm debts can be.

The question is, whether this assignment was made with the intent to hinder or defraud creditors, that is, firm creditors. It was given and received for the purpose, among other things, of applying the firm property to pay the individual debts of the members of the firm. Suppose that expressed purpose is carried out; the effect is both to hinder and defraud such creditors. The effect being known, the intent to accomplish it is 'just as plain as if it had been confessed in the instrument itself. And to this, effect are the cases. Wilson v. Robertson, 21 N. Y., 587; Barney v. Griffin, 2 id., 365; Kirby v. Schoonmaker, 3 Barb. Ch., 48; Fielder v. Day, 2 Sandf., 594.

It can" make no difference whether the assignment is to a. trustee or to a creditor, or is in the nature of a mortgage. In either case the purpose declared, will, if carried out, enable the plaintiff to hinder and delay the firm creditors-in obtaining satisfaction of their debts, and will defraud them to the extent that the firm property is applied to individual debts. In whatever form such an intent is sought to be accomplished the law condemns it. Billings v. Russell, 101 N. Y., 226.

When it is conceded that that part of this assignment which appropriates the firm property to the payment of individual debts is void against the firm creditors, then it is conceded that by making this assignment the parties to it intended to withdraw some portion of the firm property from the reach of firm creditors, and consequently the intent was to defraud such creditors to the extent of the firm property thus placed beyond their reach.

The statute does not say that the part of the assignment made with such intent shall be void, but that the assignment itself shall be void. The statute condemns the whole instrument if any part of it shows that the instrument itself was made with this prohibited intent. Curtiss v. Leavitt, 15 N. Y., 97; Billings v. Russell, supra.

Cases like Darling v. Rogers (22 Wend., 483), in which the void parts of an assignment are separated from the valid, and the latter upheld, have no application. There particular provisions are forbidden and condemned; here the prohibition is not simply directed to particular provisions, but to the whole instrument, if made with the prohibited intent, of which these particular provisions are conclusive evidence.

The cases of Leitch v. Hollister (4 N. Y., 211), and Dunham & Dimon v. Whitehead (21 id., 131), do not aid the plaintiff. They are to the effect that a failing debtor may give to his creditor a mortgage of his property to secure payment of his debt, and such mortgage is not void because providing for the return of the surplus to the debtor after the debt shall be paid. They do not touch the vice in this instrument which we have considered, namely, the intent to appropriate firm property to the payment of individual debts to the prejudice of firm creditors, an intent which is fatal to a mortgage as well as to an assignment.

Learned, P. J., concurs.


author: Bockes, J.

text:
    John E. Freer, Resp’t, v. Henry J. Budington, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    .1. Appeal—Findings oe referee when reversed.
    The general term of the supreme court will not disturb on appeal the conclusions of a referee unless he has found against the clear preponderance of proof.
    2. Evidence—Entry in account book is a private memorandum.
    An entry in a party’s account hook is not conclusive like a written contract signed by the parties, but is open to explanation like a private memorandum.
    Appeal from a judgment entered upon the report of a • referee in favor of the plaintiff.

      A. W. Cooper, for app’lt; John E. Van Etten, for resp’t.
   Bockes, J.

Appeal by the defendant from a judgment against him directed by a referee for $215.53, and costs, $192.13—$407.66.

The recovery was for work, labor and services and materials rendered and furnished in 1878, amounting in the aggregate to $151.53.

The items constituting the account and their value were duly proved, and the defendant did not dispute his liability for a portion of the claim to the amount of $33.45; or rather, he offered at one time to pay to this extent; but he denied his liability for the remainder, and, indeed, as is gathered from the pleadings and proofs, denied his liability in toto.

The work was done and the materials furnished for the benefit óf a mining company, of which the defendant was at the time superintendent; and the question in dispute was as to whether the company or the defendant was the party liable to the plaintiff therefor. The plaintiff claimed that the engagement or contract for the work and materials were with the defendant in his own behalf and on his (defendant’s) personal promise to pay, and embraced all the items of his demand. This the defendant denied. The parties testified as witnesses, each in his own behalf. Their statements on the point in issue were in conflict, and as to each there was some corroborating proof. Thus it is seen the case was for the referee on a conflict of evidence, and this court will hardly be authorized to disturb his conclusion on appeal. This will be done only when the referee has found against the clear preponderance of proof. Such, in our opinion, is not this case. The finding of the referee must be held to conclude the parties on the question of fact.

Some rulings on questions of evidence remain to be considered. It appears that the items for the work and materials, as first entered on the plaintiff’s account book, were charged against the mining company, and that a change thereon was afterwards made by which they were entered against the defendant. The plaintiff was permitted against objection and exception to show that the entry as first made was so made by mistake. In this ruling there was no error. The proof showing the mistake and its correction was proper. It could work no wrong, as it was to answer a just purpose and end. The entry in the book was not con-conclusive, like a written contract signed by the parties, but like a private memorandum it was open to explanation. The other rulings criticised by the appellant’s counsel do not touch the merits and need no comment.

Judgment affirmed, with costs.

Learned and Landon, JJ., concur.


author: Per Curiam.

text:
    Michael Kelly, Appl’t, v. Dennis T. Reilly, Adm’r, et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    Practice—Reversed on question of fact.
    Where the circumstances were such that it might be expected that the direct evidence of a fact would be slight, the decision of a referee based upon slight evidence of said fact will not be reversed.
    Appeal from a judgment entered upon a report of a referee in favor of defendants.

      M. D. & J. A. Conway, for appl’t; H. L. Washburn, for resp’ts.
   Per Curiam.

This is an action on the covenant in a chattel mortgage to pay the amount thereby loaned. The mortgage was made November 2,3874, by John Brady, the intestate, who died July 29, 1883. And the mortgagee claims the full amount with interest. The referee found that the mortgage had been paid. If he was correct in this decision it is unnecessary to examine the other question.

The evidence to sustain this finding is briefly as follows:

One of the defendants testified that in the fall of 1883, plaintiff said the mortgage had been paid. Another witness stated that after Brady’s death plaintiff said he thanked God he didn’t have any claim against him (Brady); he got out' of him (Brady) all right. The plaintiff substantially denies these conversations.

There is also evidence that plaintiff had found it difficult to get his wages from the deceased when he had worked for him. And that the plaintiff did not pay any attention to see whether the horses, mules and cows covered by the chattel mortgage, had not disappeared from the farm, after the execution of the mortgage.

In connection with this fact is to be taken the long time which the mortgage had been allowed to stand. Taking these facts all into account we are to say whether the referee decided without evidence or whether the weight of evidence was clearly with the defeated party. Sherwood v. Hauser, 94 N. Y., 626. If the evidence was balanced there might have been something in the appearance of the witnesses which influenced the referee. And the court of appeals in the case just cited have said that they may assume that there were such appearances. It is true that the direct evidence in the present case was slight. But the circumstances were such that we might expect the direct evidence to be slight.

We think, therefore, that we should not be justified in reversing the decision of the referee on the question of fact. Hence the judgment must be affirmed, with costs.

Land on and Maykam, JJ., concur.


author: Learned, P. J.

text:
    Joseph Elgleman v. Adolph Langhorst.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    Highways—Discontinuance—Posting of order not necessary to validity.
    The failure of a town clerk to post notice of the order discontinuing a. highway does not make the order invalid.

      John F. Anderson, for pl’ff ; T. F. Bush, for déf’t.
   Learned, P. J.

The place where the trespass was committed had been a highway prior to September 26, 1885. The-question is, whether it was then legally discontinued. If it was, the defendant committed a trespass by going on plaintiff’s land. If it was not, he did not.

We think that this highway was legally discontinued. The ground of alleged irregularity is the failure of the town, clerk to post notice of the order of discontinuance in the place where town meetings are had. Assuming that such notice was not posted, we think the order was still legal. That was a duty imposed on the town clerk. His failure to perform it does not make the order invalid. The time to appeal does not run from the posting of the notice, so that such posting is not treated as a necessary part of the proceedings. The posting is evidently intended for the information of the public, and the town clerk may have been culpable in neglecting to post the notice. But we cannot consider the posting as requisite to the validity of the order.

As to the release of damages for the taking of the new road, that is probably a matter immaterial to the case. At any rate, it appears that the plaintiff, over whose land the new road ran, not only petitioned for the change, but himself worked and opened the new road. It certainly does not lie with the defendant to object that there was no formal release. He could have gone over the new road without fear of committing a trespass thereby.

We have nothing to do with the merits of the opening of the new road and discontinuance of the old.

Judgment ordered for plaintiff on verdict, with costs.

T i andón and Mayham, JJ., concur.


text:
    Matter of Charges Preferred by Carlos B. Conant v. Patrick Grogan, Police Magistrate.

      (Supreme Court, General Term, Third Department,

      Filed February, 1887.)

    1. Public officers—Only removal for acts done in present time.
    The court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers.
    3. Same—Evidence—Limited to act during present term.
    In an action to remove an officer the inquiry should be limited to acts done during the existing term of office, unless some light can be thrown on those acts from previous conduct.
    3. Same—What may be proved to show intent.
    In civil and in criminal actions there are a few exceptional cases in which proof of other acts of a party may be received in order to characterize the act which is the ground of action or defense. The object is generally to show intent or motive.

      4. Same—When made to undergo a trial por misconduct.
    A public officer will not be subjected to a trial upon charges of misconduct until the court has been convinced that there is good reason therefor. When the charges are not supported by evidence sufficient to do so they should be dismissed.

      Eugene Burlingame, for Conant; C. B. Patters'on? for Grogan.
   Learned, P. J.

The court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers.

When the people have elected a man to office it must be „ assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct, to practically overrule the will of the people.

We will not say that, on an application like the present, evidence of acts done prior to the term of office might not sometimes be admissible, where such acts would tend to characterize other acts committed during the existing term. In civil and in criminal actions there are a few rather exceptional cases in which proof of other acts of a party may be received in order to characterize the act which is the ground of action or defense. The object is generally to show intent or motive.

But that doctrine should be very cautiously applied in such a case as the present. The inquiry should be limited to acts done during the existing term of office, unless some light can be thrown on those acts from previous conduct.

Applying these rules to the present case we find that the respondent’s present term of office commenced January 1, 1887. Of all the charges presented the only one which affects the present term is that in or about December, 1886, and in the fore part of January, 1887, the respondent was in a state of gross intoxication, and because thereof absented himself from his office, neglected to perform, and was unable to perform its duties.

Perhaps, however, we should mention a general charge of failing to pay over to the supervisors on or before the fifth day of every month, moneys received for costs, fees, etc. This might include a failure to pay on the 5th of January, 1887. We find no other charges which extend into the present term of office.

The charges presented to us are verified by an affidavit of Carlos B. Conant, that they are true to the best of his knowledge, information and belief. Such an affidavit does not show that the affiant has any knowledge on the subject whatever.

In. reply there is presented the respondent’s affidavit, in which he denies specially all of the charges; not only those which have been above mentioned as coming within his present term but all the others which respect acts prior thereto: The denial throughout is as full as it can be made and is verified as true to deponent’s knowledge.

In addition the respondent avers the bad character of the complainant, and states that there are two indictments pending against him for criminal libel; and states respondent’s belief that these charges are presented to bring about a discontinuance of these indictments, of which copies are given:

The respondent further presents the affidavits of three persons, each of whom states that from about December 24, 1886, to January 10, 1887, the respondent was confined to his house by a severe cold; that at no time during that period was he drank or under the influence of intoxicants; and that one of these persons was with him every day as nurse.

This might, be considered a sufficient answer to that part of the charges which are within the present term. But the greater part of the charges respects acts of the respondent during previous terms of office. And, without going over them in detail, it may be said that they are generally charges of intoxication while acting officially.

To these charges also the respondent opposes many affidavits. We may briefly mention some:

Charles F. Doyle, recorder of Cohoes for eight years, denies that respondent was convicted of intoxication in that city, and speaks well of the respondent’s conduct in office.

E. P. Bellinger, chief of police of Green Island, gives a similar contradiction to another specific charge.

Sixteen members of the police force deny the charges of intoxication made against respondent.

Several parties, who have at times taken the place of the respondent, make affidavits that for such services they were paid by him and not by the town.

Peter A. Rogers, for twelve years surrogate of the county; D. Cady Herrick, for nearly six years district attorney of the county; LaMott W. Rhodes, district attorney of Rensselaer county, and Arthur T. Phelps, cashier of the National bank in West Troy, make affidavits stating that the respondent has discharged the duties of his office with intelligence and fidelity.

To these may be added Waters W. Braman, member of assembly and senator; Joseph Hynes, president of Green Island; John Reilly, commissioner to the Albany penitentiary, and several others.

Finally, there are added affidavits of some twenty-five persons stating that they know the reputation of Conant; that it is bad and that they would not believe him under oath.

This brief summary of the evidence before us tends to show that the charges against the respondent are, or may be fully answered.

The counsel for the complainant urges that the charges were presented under an expectation that the court would order a reference or hear testimony in some other way, and therefore corroborating affidavits which might have been presented were not; and that if an opportunity should now be given, either by a reference or in any other manner, to produce proof to support these charges, abundant proof would be supplied.

But it is a serious matter, both to the respondent and to the public, to begin such an investigation, either before a referee or otherwise. The pendency of such an investigation would weaken the authority of the magistrate. It would be difficult for him to enforce tho law against offenders who knew that he was himself undergoing a trial. A reference would be especially objectionable. It would be long and tedious, and would afford an opportunity for every one punished in the police court to try his case over again before the referee.

A hearing before this court would be less objectionable. But the respondent should not be subjected to that until we have been convinced that there is good reason therefor. We will not place the respondent upon trial until we are satisfied that the good of the people demands this.

When charges, supported only by the information and belief of the complainant, who is discredited with respect to character and motive, and who is not corroborated, have been thus answered, they should be dismissed.

It would be unjust to the respondent to require him to make any further answer. And the complainant cannot be permitted to harass the respondent, and thus to interfere "with the regular discharge of the respondent’s duties by offering to produce more proof if opportunity is given.

.The charges are dismissed.

Landón and Parker, JJ., concur.


text:
    People ex rel. Charles R. Johnston, App’lts, v. Board of Supervisors of Ulster County, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed January 22, 1887.)

    County charge—Discount allowed on unpaid county bills not a charge AGAINST THE COUNTY.
    Where a county fails to provide for the payment of its indebtedness when due and the creditor has his bill against the county discounted he cannot collect the discount he allowed, from the county. It is not a county charge.
    Appeal from an order of the special term denying a motion for a writ of mandamus to issue against the defendants requiring them them to pay relator the amount of certain discounts allowed by him.

      Charles A. Fowler, for app’lts; A. D. Lent, for resp’ts.
   Landon, J.

The relator was entitled to the payment monthly for his services as janitor of the armory, and his monthly wages were a county charge. Chap. 299, sec. 64, Laws of 1883.

, But provision was not made for his monthly payment, and he had the bills discounted at a bank; the aggregate amount of the discounts allowed the bank was $42.50. The relator presented a verified bill to the board of supervisors for this sum, and its allowance was refused.

. The discount allowed by the relator to the bank was not for the benefit of the county, and is not a county charge. The relator’s claim is of the nature of damages for delay in payment. No statute authorizes such a charge. If interest ought to be allowed, it would attach to the bills themselves and be the claim of the present holder. The propriety of the allowance of the present claim is doubtful; certainly the relator has no clear legal right to it. The motion for a mandamus was properly denied, and the order should be affirmed with ten dollars costs and printing disbursements.

Learned, P. J., concurs; Parker, J., not acting.


text:
    Mark T. Dunning, App’lt, v. Edwin R. Northup and Roselle Van Derwerker, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 22, 1887.)

    Conversion—Sale of property on installments—Vendor may sell interest WITHOUT BEING GUILTY OF CONVERSION.
    The vendor of property to be paid for in installments, after part of the installments had been paid by the vendee, sold his interest in said property . to a third party; the property being at the time in his possession. Held, that it did not amount to a conversion by the vendor even if he stated to the third party that the vendee had forfeited his interest in the property. Nor would it make the vendor party to the wrongful act of third party in running away with the said property.

      Appeal from a judgment entered upon a report of a referee in favor of defendants in an action for the value of a canal boat claimed to have been converted by defendants.

      A. B. Olmstead, for app’lt; E. F. Bullard, of counsel; Hughes & Northup, for resp’ts.
   Landon, J.

The plaintiff seeks to recover the value of a -canal boat alleged to have been converted by the defendants. The defendants sold the plaintiff a canal boat for $400, of which $100 was then paid by the plaintiff and the balance to be paid in specified installments, the plaintiff to have possession of the boat until default in payment, but not to have title until all the payments should be made; upon default in payment, all payments made to be forfeited, and defendants to re-take possession as if no agreement had been made. The plaintiff took possession of the boat and paid $120 more as the installments fell due. Then, in July, 1880, he made an additional agreement with the defendants whereby they took possession of the boat and agreed to operate it until November and credit its net earnings to the plaintiff upon the installments yet unpaid.

The defendants, under this new arrangement, operated "the boat until November of the same year, when they notified the plaintiff to take charge of it. The boat was then in the canal at Fort Edward, and was there placed in charge of one Sanders, and then loaded with ice as freight and by Sanders taken to New York, where he kept the boat during the winter. In the following spring Sanders returned with the boat to Fort Edward. The defendants then sold their interest in the boat to Sanders, who went away with the boat and never returned it to either party. The defendants credited the plaintiff with three dollars and seventy-seven cents, being the net earnings received by them while they had the boat from July to November, 1880, including twenty ■dollars paid them by Sanders in the winter following on account of the cargo of ice.

There was a conflict of testimony between the parties upon the question whether the plaintiff or the defendants placed Sanders. in charge of the boat when Sanders took the cargo of ice to New York. The referee found that the plaintiff placed him in charge. The plaintiff insists that this finding is against the clear weight of the evidence. We. do not see that this is so. Upon the plaintiff’s own testimony, he sought out Sanders in order that he should take this cargo of ice to New York. Sanders consented, and talked with both parties about it. It is inferable that Sanders desired the consent of both parties. Certainly the plaintiff did not object. The referee, out of the conflict of evidence, has found that the plaintiff placed Sanders in charge. We rarely disturb a finding of fact which depends upon the credit to be given to the testimony of witnesses who contradict each other.

If the plaintiff consented to look to Sanders for the boat, he cannot hold the defendants responsible for it, in the absence of evidence that they conspired with Sanders to-make way with it. Their sale to Sanders of their interest, in the boat was within their right. Such sale, even if accompanied by the declaration that plaintiff had forfeited his interest, would not amount to a conversion, for it would not in any way change the character of the possession Sanders had received from the plaintiff, nor would it make the defendants parties to Sanders’ wrongful act of running away with the boat.

The plaintiff urges that it was error to direct a reference, but it does not appear that the reference was compulsory. The action was, by consent of the parties, referred to a. referee and tried before him and judgment rendered. This judgment was upon appeal reversed, the reference discharged and a new trial granted. Ho objection appears to have been taken to the appointment of the new referee. Code Civ. Pro., § 1Q11.

We find no error in the admission of evidence which calls, for a reversal of the judgment.

Judgment affirmed, with costs.

Learned P. J., concurs; Bockes, J., not voting.


text:
    People ex rel. The Board of Education of the City of Hudson, Resp’ts, v. Henry W. Dakin, Treasurer of the City of Hudson, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 22, 1887.)

    Municipal bonds—Premium on sale of, belong to city—City of Hudson.
    The common, council of the city of Hudson was authorized to borrow not to exceed a specified sum on its bonds, for the board of education, and to place it to the credit of said board. The money so borrowed was to be paid out on the certificate of said board. The common council issued bonds for the prescribed sum, which sold so that a premium was realized. The certificate of the board of education called for the entire proceeds of the bonds. Held, the premium belonged to the city. That the board could not issue certificates for more than the specified sum.
    Appeal from an order of the Columbia county special term awarding a writ of mandamus against the defendant commanding him to pay over the entire proceeds of the-sale of certain bonds to the relator.

      John V. Whitbeck, for resp’ts; Cady & Hoysradt, for app’lt; J. Bider Cady, of counsel.
   Landon, J.

The amount the common council could lawfully borrow could not exceed $25,000. The amount the.board of education could lawfully certify could not exceed the sum the common council could lawfully borrow, and was therefore limited to $25,000.

The common council was empowered to secure the sum thus borrowed, by issuing the bonds' of the city bearing interest at the rate of not more than five per centum per annum. Bonds to the amount of $25,000 of principal bearing five per cent interest were issued and sold, and a premium of $2,802.50 was realized over the principal sum. The act provides, that “ the moneys so borrowed on the sale of said bonds shall be paid to the city treasurer, and by him placed to the credit of the board of education,” etc. The certificate of the board of education called for the entire proceeds of the bonds. Now ‘ ‘ the moneys so borrowed on the sale of said bonds ” was only the principal sum of $25,000. The city offered for sale $25,000 of bonds bearing five per cent interest. The buyers bought them at such lower rate of interest, as required them to pay to the city the sum of $2,802.50, to make good to the city the difference between the two rates. Because of its good credit the city has had this amount of interest which it has agreed to pay already returned to it. It is not money borrowed to build a school-house, but the excess of interest promised, over and above the interest required. This construction makes the entire loan a lawful one; if not adopted, it would be difficult to justify the city in not stopping the sale of its bonds when the total of $25,000 was reached. The premium thus becomes the property of the city, as the incident or profit of a lawful transaction. People v. Ingersoll, 58 N. Y., 1.

The certificate of the board of education could have no force except within the terms of the power to make it.

The order awarding the mandamus must be reversed, but without costs.

Learned, P. J., and Mayham, J., concur.


text:
    Weidman Dominick, App’lt, v. John S. Hill, Resp’t.

      (Supreme Court, General Tern, Third Department,

      Filed February, 1887.)

    1. Highways—User.
    "Where the ditch on the side of a road has been used, all the time that the road itself has; for draining the surface water outside of the road, or confining the spring water outside of the road, such user taken in consideration with the user of the road would amount to a user of the ditch as part of the highway.
    2. Same—Obstruction of ditch an obstruction of highway.
    An obstruction placed in said ditch which threw the water upon the highway so as to render passage over it less convenient is an obstruction Of the highway and not an encroachment.

      3. Same—Commissioner mat summarily remove obstruction.
    Anything which obstructs public travel over the highway may be summarily removed by the commissioner of highways.
    4. Same—Ancient order laying out not void for uncertainty.
    An order over fifty years old, which laid out a highway, should not be rejected as void for uncertainty in the description when the highway has been used in supposed conformity with it.
    5. Same—Commissioners of—Officer may show that he is, de jure, BY SECONDARY EVIDENCE.
    When an alleged officer, in this case commissioner of highways, is suing or defending he must show not merely that he was acting as such officer, but that he was such officer. This may be shown by secondary evidence.
    6. Jury—Right of each juror to individual opinion—judge’s charge/i
    Where a judge charged the jury on their statement that they could not agree, “ No' juror should make up his mind that he will stand by his opinion forever; that he will listen to no suggestion of his fellows, but simply stand in his traces and remain there stalwart and stolid,’’ and sent them, back, it was error. But no exception having been taken by either party it is not a ground for a new trial.
    Appeal from a judgment entered on a verdict in favor of defendant and an order denying a new trial in an action for trespass brought against a commissioner of highways.

      G. W. Hinman, for app’lt; Krum & Grant, for resp’t.
   Learned, P. J.

This is an action of trespass on land, commenced in a justice’s court and removed to the supreme court on plea of title. The alleged trespass was a tearing down a fence and digging open a ditch. The defendant defended on the ground that the place was a public highway, and that he, as commissioner of highways, was removing an obstruction and nuisance.

There seems to be no doubt that there had been for over fifty years a highway, at least by user. The exact position, or more accurately, the exact boundaries, were perhaps not free from doubt. The ditch in question, or much of it, ran at the side of the traveled road.

The defendant gave in evidence an application to the commissioners of highways and an order made by them thereafter, dated Junó 15, 1819, intended to show an alteration and establishment of the road in question. The plaintiff objected that these papers were void for uncertainty in the description and location of the road. The order describes the road as beginning “a little to the east of the house of John Shafer.”

(It may be noticed that in the printed case the word “ south ” seems to have been omitted in the third and fourth courses. But the testimony of Mr. Brewster indicates that the word is in the order, and probably the omission is in the printing, as it is not referred to in the points.)

Now, even if we admit that in a direct proceeding the order laying out this road might be reversed for the uncertainty in the description, (People ex rel Waters v. Diver, 19 Hun, 263), still it does not follow that an order over fifty years old should be rejected as void when a highway has been used in supposed conformity with it. Indeed the description is more definite than that in Satterly v. Winne (101 N. Y., 218). So too, the fact that this application and order were recorded in the town clerk’s office, as it would appear, in 1819, authorized the introduction of the record in evidence without further proof tnat the persons named therein were then commissioners of highways.

Whether the surveyor sufficiently identified the description with the alleged road is another question.

The plaintiff urges that the defendant should have proved that he was a commissioner of highways de jure, and not merely de facto. The question put to defendant was: Were you the commissioner of the town of Wright then ?” This was objected to on the ground above stated.

Now, the doctrine as to de jure and de facto officers is briefly that when the alleged officer is suing or defending he must show not merely that he was acting as such officer, but that he was such officer. But that rule does not necessarily touch the mode of proof. Thus it is said by Greenleaf that, by an exception to the ordinary rules rejecting secondary evidence, “It is not in general necessary to prove the written appointment of public officers,” * * * “whether the officer is or is not a party to the record.” 1 Greenleaf’s Evidence, 92.

On this principle the testimony of defendant that he was commissioner of highways was secondary evidence of that fact. It was prima facie proof of the fact, but not conclusive. Had the plaintiff shown that the defendant was not lawfully elected, then the fact that defendant was acting as commissioner would not have justified his alleged trespass. And in that respect the defendant could not rely on his de-facto character as a third party might do. But the question is. How may defendant prove his de jure character? On that, according to the rule just cited, secondary evidence is admissible. And the objection which was made did not touch the point that the evidence was secondary. It assumed that the answer would be no answer at all of defendant’s de jure character.

The court did not hold that if defendant were acting as commissioner such action would enable him to justify the alleged trespass. But the court held that secondary evidence was admissible (especially when the objection was not specifically taken) to show that defendant was a lawful commissioner. We think there was no error in this. •

When the defendant rested the plaintiff asked the court to direct a verdict for the plaintiff on the ground not having proved an obstruction to the road, but at most has proved an encroachment, and if it be an encroachment defendant has not taken the necessary steps. It is very possible that all encroachments are not obstructions. Howard v. Robbins, 1 Lans., 63. But that which does obstruct public travel may be summarily removed by the commissioner. Cook v. Harris, 61 N. Y., 448.

And on looking at the evidence we think that the court could not have said that there was no obstruction. It was claimed that the obstruction placed in the ditch threw the water upon the highway and made it somewhat bad to travel. Now it is plain that a wet place across a road is in the nature of an obstruction rather than encroachment. It may be so wet as to be a complete obstruction.

In this connection the plaintiff calls attention to the language of the court in its charge, which was excepted to, viz.: that the obstruction of the ditch was such an obstruction to the highway as to authorize the commission to remove it. The court qualified that by saying: 1 ‘If they find the obstruction of the ditch did obstruct the highway to such an extent as to render passage across it less convenient. Thus explained we see no error in the language. The court said that the jury must find that the highway was obstructed so as to render passage less convenient. And it is plain that if the filling of the ditch did throw water on the highway, this would not be an encroachment, but an obstruction, if it was anything.

The court submitted it to the jury to decide whether the place in question was a highway,, either as shown by the survey following the order laying out the road or as shown ■' by user. On the last point the court charged that though the ditch was not traveled in, yet if it had been used for all this time (over twenty years) for draining the surface water of the road or confining the spring water outside of the road, such user taken in consideration with the user of the road would amount to a user of the ditch. The plaintiff seems to have intended to except to this. But it seems to us that the charge is correct.

Undoubtedly, if the highway depends on user, then the user must be shown. But the question was whether this ditch had not been used, not of course to travel in, but to keep the water from that part on which people traveled. If a highway were raised many feet above adjacent land it might be impossible to travel on the supporting slopes. Yet such slopes might be found by a jury to have been used as a part of the highway.

In Cranston v. N. Y. C. R. R., reported in 4 N.Y. St. Rep., 300, better and more fully reported in 35 Alb. Law Jour., 158, the trial court had charged the jury): “No juror ought to remain entirely firm in his own conviction, one way or the other, until he has made up his mind beyond all question that he is necessarily right and the others are necessarily wrong.”

The court thus stated that, until the juror had reached a conviction beyond all question that he was right, he should not remain entirely firm in his mind.

But the court of appeals decided that this was error. If this statement by the trial court was error, then the contrary must be the law. It is, therefore, the duty of a juror to remain entirely firm in his own conviction, one way or another, even before he shall have made up his mind beyond all question that he is necessarily right and the others are necessarily wrong. It seems then to be the duty of such juror to retain his own conviction even though it is one not beyond all question in his mind. We are unable to see how there can be any lawful change of opinion among the jury if every juror ought thus to remain firm in his own conviction. The only chance for agreement then is that when they retire all should have the same conviction, or should then have none at all. Mutual discussion to modify conflicting opinions is at an end.

The charge in the present case is strikingly like that in the case just cited.

In that the court said: “You must get together.” In this: “You ought to agree.” In that: “No juror ought to remain entirely firm in his own mind, one wny or another, until he has made up his mind beyond question,” etc. In this: “No juror should make up his mind that he will stand by his opinion forever, that he will listen to no suggestion of his fellows, but simply stand in his traces and remain there stalwart and stolid.”

The idea in each charge is the same, and in each the remarks were made after the jury had returned and said that they could not agree. If any exception then had been taken to this part of the charge, whatever our own views might be, we do not see why it would not fall under the decision in the case just cited. But no exception was taken by either party.

The plaintiff urges that on the whole case a new trial should be granted. We have examined the case as far as we can. It presents a controversy in which it is difficult for an appellate court to understand the facts with accuracy, and in which we think that the trial court and the jury have a much better understanding than we can have. The questions of fact are such that there is a good deal of uncertainty; and as the case has once been fairly tried, we see no reason to disturb the result.

Judgment and order affirmed, with costs.

Landon, J., concurs; Mayham, J., not acting.